Ketroser v. 7-Eleven, Inc.

Background

Deidre Kellogg Ketroser, who requires a walker and cane for mobility, sued 7-Eleven, Inc. and Southland Corp. over alleged access barriers at a 7-Eleven store in San Ramon, California, during visits in December 2018 and February 2019. Her operative complaint asserted claims under the Americans with Disabilities Act of 1990 and the Unruh Civil Rights Act. The claims relevant to this motion involved alleged excessive operating pressure on the exterior doors and an alleged obstruction of the interior aisles.

Ketroser sought permission under Federal Rule of Civil Procedure 15(b) and Rule 15(d) to file a Second Supplemental Third Amended Complaint. The proposed pleading added allegations based on a November 5, 2022 visit to the store.

Exterior Door

The court ruled that no amendment or supplemental pleading was necessary concerning the door claim. After discovery ended, 7-Eleven was allowed to present evidence about its installation of an automatic door and whether that change made the door claim no longer live. Ketroser was allowed to present her testimony and her expert’s testimony about the claimed remediation. The court stated that it would consider this evidence in deciding the door issues. It found that changing the pleadings at that stage would add an unnecessary layer to the case.

Interior Aisles

For the aisle claim, the court rejected Ketroser’s argument under Rule 15(b), which can treat an issue as part of the case when the parties expressly or implicitly agreed to try it. The court found that 7-Eleven did not agree to litigate barriers beyond those identified in the operative complaint and had objected before and during trial to evidence about those additional barriers.

The court also rejected the request under Rule 15(d), which allows a court, on fair terms and with reasonable notice, to permit a pleading about events occurring after the original pleading. The court explained that supplemental pleadings cannot introduce a separate and new cause of action, or add evidence supporting an existing claim when the evidence was obtained or offered too late or would unfairly harm the opposing party.

The court found that Ketroser unduly delayed obtaining the new evidence and that 7-Eleven would be unfairly prejudiced by having to address it months after fact and expert discovery had closed and five days after the defense had rested. The court noted that Ketroser or her expert could have visited the store during discovery and disclosed the evidence before discovery ended.

Disposition

Judge Maxine M. Chesney denied Ketroser’s motion for leave to file a Second Supplemental Third Amended Complaint. The opinion did not decide the underlying disability claims in this order.