                               NOT FOR PUBLICATION                           FILED
                        UNITED STATES COURT OF APPEALS                       MAY 13 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


ROBERT SEGALMAN,                                   No. 12-17601

           Plaintiff - Appellant,                  D.C. No. 2:11-cv-01800-MCE-
                                                   CKD
  v.

SOUTHWEST AIRLINES CO.,                            MEMORANDUM*

           Defendant - Appellee.

                      Appeal from the United States District Court
                          for the Eastern District of California
                 Morrison C. England, Jr., Chief District Judge, Presiding

                        Argued and Submitted November 21, 2014
                                San Francisco California

Before: RAWLINSON and FRIEDLAND, Circuit Judges and MARSHALL,**
Senior District Judge.

       Plaintiff Robert Segalman appeals the district court’s dismissal of his claims

under the Americans with Disabilities Act (“ADA”) and California statutes

prohibiting disability discrimination, as well as a state-law negligence claim, all


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for the Central District of California, sitting by designation.
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stemming from Southwest Airlines’ alleged improper handling of his electronic

wheelchair. We review de novo the district court’s grant of a motion to dismiss

under Rule 12(b)(6). Narayanan v. British Airways, 747 F.3d 1125, 1127 (9th Cir.

2014).

      Following the district court’s judgment in this case, we decided Gilstrap v.

United Air Lines, 709 F.3d 995 (9th Cir. 2013), which addressed several of the

legal issues presented here. In light of Gilstrap, we affirm in part, vacate in part,

and remand to the district court for further proceedings.

I.    ADA Claim.

      As Plaintiff acknowledges in his reply brief, his ADA claim is foreclosed by

Gilstrap, in which we held that airport terminals are not among the “place of public

accommodation” governed by the ADA. 709 F.3d at 1011-12. Accordingly, we

affirm the dismissal of Plaintiff’s ADA claim.

II.   State-Law Negligence and Statutory Claims.

      The district court concluded that Plaintiff’s claims under California’s Unruh

Act and Disabled Persons Act, as well as his negligence claim, were preempted by

federal regulations implementing the Air Carrier Access Act (“ACAA”). We

subsequently considered the preemptive effect of ACAA regulations in Gilstrap

and held that whenever “the particular area of aviation commerce and safety

implicated by the lawsuit is governed by pervasive federal regulations . . . any

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applicable state standards of care are preempted.” 709 F.3d at 1006 (internal

quotation marks and alteration omitted). Federal regulations “do[] not, however,

preempt any state remedies that may be available when airlines violate those

standards.” Id. at 1010.

      Plaintiff alleges that Southwest employees (i) caused his wheelchair to arrive

at his destination without power, (ii) failed to follow his written directions on how

to place the wheelchair in cargo, (iii) broke the wheelchair’s arm and neck rests,

and (iv) severed the wheelchair’s seatbelt. ACAA regulations are pervasive in

prescribing how air carriers must stow and care for wheelchairs, and a handful of

regulations directly address the specific areas of air carrier service at issue in

Plaintiff’s allegations. See, e.g., 14 C.F.R. § 382.127(f) (carriers must not drain

wheelchair batteries); id. § 382.129(a) (carriers must follow passengers’ written

instructions concerning the disassembly and reassembly of their wheelchairs); id.

§ 382.129(b) (carriers must return wheelchairs in the condition in which they

received them). These pervasive federal regulations preempt state-law standards of

care (or standards of discrimination) for Plaintiff’s state-law negligence and

statutory claims.1



1
 We decline to reach Plaintiff’s argument, raised for the first time on appeal, that
ACAA regulations do not apply to intrastate conduct. See In re Mortg. Elec.
Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014) (“Generally, arguments
not raised in the district court will not be considered for the first time on appeal.”).
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      The next question is whether California law provides remedies under the

Unruh Act, Disabled Persons Act, and common law of negligence in situations in

which, due to preemption, federal regulations provide the standard of care (or

standard of discrimination). See Gilstrap, 709 F.3d at 1007. As in Gilstrap, we

leave this issue for the district court to determine in the first instance.2

      We vacate the dismissal of Plaintiff’s state-law negligence and statutory

claims, and remand for further proceedings.3



AFFIRMED in part, VACATED in part, and REMANDED. Each party shall

bear its own costs.




2
  To the extent Plaintiff’s state-law claims mirror his now-dismissed claim under
the ADA, the district court may also consider whether, and to what extent, the
state-law claims are preempted by the ADA.
3
  Because Plaintiff’s operative complaint at the time of dismissal did not allege a
cause of action under the ACAA, we decline to reach Plaintiff’s argument that
there is an implied right of action under the ACAA. See Gilstrap, 709 F.3d at 1002
(noting circuit split regarding an implied right of action under the ACAA but
declining to reach the question because the plaintiff “d[id] not allege a cause of
action under the ACAA”).
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