RALPH F. BOYD, JR.

Assistant Attorney General

Civil Rights Division

JOHN S. GORDON

United States Attorney

JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal Counsel

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

LEON M. WEIDMAN

Assistant United States Attorney

MICHELE MARCHAND

Assistant United States Attorney

California Bar No. 93390

Room 7516, Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

Telephone: (213) 894-2727

Facsimile: (213) 894-7819

GRETCHEN E. JACOBS

PHYLLIS M. COHEN

KATHLEEN S. DEVINE

DOV LUTZKER

KRISTAN S. MAYER

JOSEPH C. RUSSO

Trial Attorneys

U.S. Department of Justice

Civil Rights Division

950 Pennsylvania Avenue, N.W.

1425 N.Y. Avenue Building

Disability Rights Section

Washington, D.C. 20530

Telephone: (202) 514-9584

Facsimile: (202) 616-6862

Counsel for Plaintiff

United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ) Case No.: CV-99-01034-FMC (SHx)

)

Plaintiff, ) MEMORANDUM IN SUPPORT OF

) UNITED STATES' MOTION TO STRIKE

v\. ) DECLARATION OF ATTORNEY

) GREGORY F. HURLEY

)

AMC ENTERTAINMENT, INC., ) DATE: November 18, 2002

[et]{.underline} [al]{.underline}., ) TIME: 10:00 a.m.

Defendants. ) JUDGE: Hon. Florence-Marie Cooper

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**INTRODUCTION**

Rule 56 (e) of the Federal Rules of Civil Procedure permits motions for
summary judgment to be supported by competing declarations.[^1] The rule
places three straightforward requirements upon declarations that are
filed in support of a motion for summary judgment -- the declaration
must be based upon personal knowledge, it must set forth admissible
evidence, and it must show affirmatively that the declarant is competent
to testify. Defendant AMC's motion for summary judgment is supported by
a single declaration filed by its litigation counsel, Mr. Gregory
Hurley. His declaration fails to satisfy all three requirements of Rule
56(e) and the United States moves that the offending paragraphs (¶¶ 4,
7, 9, 15-17) of Mr. Hurley's declaration be stricken.

**ARGUMENT**

**[Paragraphs of Mr. Hurley's Declaration Should Be Stricken
Because]{.underline}**

**[They Fail to Satisfy the Requirements of Rule 56(e)]{.underline}**

**A. Rule 56(e) Legal Standards**

Rule 56(e) of the Federal Rules of Civil Procedure requires that
"\[s\]upporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein." In reviewing motions for summary
judgment, courts may not consider affidavits or declarations that do not
comply with these requirements. [El Deeb v. Univ. of
Minnesota]{.underline}, 60 F.3d 423, 428 (8th Cir. 1995); [School Dist.
1J v. AC and S]{.underline}, 5 F.3rd 1255, 1261 (9^th^ Cir. 1993),
[cert.]{.underline} [denied]{.underline}, 512 U.S. 1236 (1983);
[Mitchell v. Toledo Hosp.]{.underline}, 964 F.2d 577, 585 (6th Cir.
1992); [Friedel v. City of Madison]{.underline}, 832 F.2d 965, 970 (7th
Cir. 1987); [United States v. M.E. Dibble]{.underline}, 429 F.2d 598
(9^th^ Cir. 1970).

All matters set forth in declarations must be based on personal
knowledge and statements in a declaration are inadmissible unless the
declaration itself affirmatively demonstrates that the declarant has
personal knowledge of those facts. [Love v. Commerce Bank of St. Louis,
N.A.]{.underline}, 37 F.3d 1295, 1296 (8th Cir. 1994); [Gagne v.
Northwestern Nat'l Ins. Co.]{.underline}, 881 F.2d 309, 315-16 (6th Cir.
1989) (holding that statements in affidavits that are not based on
personal knowledge and personal observation do not contain facts that
are admissible evidence for summary judgment purposes); [El
Deeb]{.underline}, 60 F.3d at 428 (affidavits "shall be made on personal
knowledge" and must include facts "to show the affiant possesses that
knowledge.") [Dibble]{.underline}, 429 F.2d at 602.

To be admissible to support or oppose a motion for summary judgment,
declarations must also set out specific facts -- not mere conclusory
allegations. [Lujan v. National Wildlife Fed'n]{.underline}, 497 U.S.
871, 888 (1990) (holding that the object of Rule 56 is not to replace
conclusory averments in a pleading with conclusory allegations in an
affidavit); [Mitchell]{.underline}, 964 F.2d at 585 (holding that
"conclusory allegations and subjective beliefs \... are wholly
insufficient evidence\...."); [O'Shea v. Detroit News]{.underline}, 887
F.2d 683 (6th Cir. 1989) (holding that conclusory allegations are not
admissible evidence).

In addition, Rule 56(e) requires that declarations contain statements
that would be otherwise "admissible in evidence," so declarations cannot
contain hearsay. [Hal Roach Studios v. Richard Frier & Co.]{.underline},
896 F.2d 1542, 1550 (9^th^ Cir. 1984); [Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp.]{.underline}, 475 U.S. 574, 586 (1986);
[Mitchell]{.underline}, 964 F.2d at 585 (holding that affidavit based on
hearsay "is not proper Rule 56(e) affidavit because it was not made on
personal knowledge and did not set forth 'facts' that would be
admissible into evidence"); [Hartsel v. Keys]{.underline}, 87 F.3d 795,
799 (6th Cir. 1996), [cert]{.underline}. [denied]{.underline} 519 U.S.
1055 (1997)(hearsay evidence may not be considered on a motion for
summary judgment). [See]{.underline} [also]{.underline} [United States
v. Leak]{.underline}, 123 F.3d 787, 796 & n.4 (4th Cir. 1997) (hearsay
evidence in affidavits is not admissible to oppose motion for summary
judgment); [Evans v. Technologies Applications & Serv. Co.]{.underline},
80 F.3d 954, 962 (4th Cir. 1996); [United States v. One Parcel of Real
Estate]{.underline}, 963 F.2d 1496, 1501 (11th Cir. 1992); [Visser v.
Packer Eng'g Ass'n]{.underline}, 924 F.2d 655, 659 (7th Cir. 1991).

Finally, an attorney's declaration is governed by the same rules that
apply to other declarants under Rule 56(e). Thus, an attorney's
declaration is admissible only to prove facts that are within the
attorney's personal knowledge and based on facts cited that support the
conclusion that the attorney is competent to testify. [Sellers v. M.C.
Floor Crafters, Inc.]{.underline}, 842 F.2d 639 (2^nd^ Cir. 1988);
[Friedel v. City of Madison]{.underline}, 832 F.2d 965, 969 (7^th^ Cir.
1987); [Local Union No. 490 v. Kirkhill Rubber Co.]{.underline}, 367
F.2d 956 (9^th^ Cir. 1966).

Unless the party's attorney has first-hand knowledge, no insistence on
his part, not even his declaration, can have probative force on a motion
for summary judgment. [School Dist. No. 1J v. ACandS, Inc.]{.underline},
5 F.3d 1255, 1261 (9^th^ Cir.)(affirmed summary judgment because
attorney affidavit did not provide facts or authenticated documents to
support allegations), [cert.]{.underline} [denied]{.underline}, 512 U.S.
1236 (1993); [Inter-Ocean (Free Zone), Inc. v. Manaure Lines,
Inc.]{.underline}, 615 F. Supp. 710 (S.D. Fla. 1985); [see]{.underline}
[also]{.underline} 10B C. Wright, M. Miller & M. Kane, [Federal Practice
and Procedure]{.underline} § 2738 (1998). While it is true that a court
may exercise discretion in dealing with deficiencies in declarations,
"leniency does not stretch so far that Rule 56(e) becomes meaningless."
[School Dist. No. 1J]{.underline}, 5 F.3d at 1261, [citing]{.underline}
[Peterson v. United States]{.underline}, 694 F.2d 943, 945 (3^rd^ Cir.
1982)(lack of personal knowledge and failure to attach authenticated
document violated rule 56(e) and made summary judgment improper).
Lacking personal knowledge, an attorney is not qualified to testify, and
unauthenticated documents cannot support summary judgment. [Canada v.
Blain's Helicopters, Inc.]{.underline} 831 F.2d 920, 925 (9^th^ Cir.
1987).

> **B. Paragraphs 4, 7, 9, 15, 16, and 17 of Attorney Gregory Hurley's
> Declaration Are\
> Inadmissible And Should Be Stricken**

Paragraphs 4, 7, 9, 15, 16, and 17 of the Hurley declaration fails to
meet one or more of the legal requirements of Rule 56(e) and should,
therefore, be stricken.

**[Paragraph 4]{.underline}**

In paragraph 4 of his declaration, Attorney Hurley states:

> ***4. As a result of this litigation (referring to Fiedler v. AMC,
> Civil Action No. 92-0486 TPJ (D.D.C.)) , AMC placed wheelchair spaces
> in the front of all its auditoriums.***

This paragraph should be stricken for several reasons. Mr. Hurley, as
trial counsel to AMC, is plainly testifying as to matters outside his
personal knowledge and merely offering conclusory, self-serving
statements that he is not competent to make. The declaration does not
affirmatively show that Mr. Hurley is qualified to testify about AMC's
decisions about seating locations or the results of internal AMC
decision-making processes in 1995 following the [Fiedler]{.underline}
decision. The declaration provides no factual support for the claim that
decisions were made based upon the [Fiedler]{.underline} decision or
details of how any such AMC decisions were made. Furthermore, Mr. Hurley
states no facts showing that he has personal knowledge of AMC's decision
making process in 1995, nor even that he was employed by AMC at that
time.[^2]

Finally, the decision in [Fielder]{.underline} was not an interpretation
of "comparable lines of sight," but instead upheld the Department's
interpretation of the regulatory requirement that wheelchair locations
be dispersed throughout a theater with more than 300 seats to offer a
choice of seats to persons who use wheelchairs. [Id.]{.underline}
[Fiedler]{.underline} did not involve "comparable lines of sight" in
movie theaters, in part, because lines of sight were less controversial
in "traditional" sloped-floor theaters where seats are all located on
gently sloping floors with viewing angles that are generally similar
from seat to seat unlike stadium-style theaters. The creation of tiered
stadium seating introduced the possibility of radically varying viewing
angles within one auditorium, especially when stadium sections are
combined with sloped-floor seating in front of the stadium section. With
the opportunity for dramatically different viewing angles and lines of
sight -- depending upon where the seat is located and whether it is in
the stadium section -- the requirement for "comparable lines of sight"
gained significance. [See]{.underline} Memorandum In Support of United
States' Motion For Partial Summary Judgment Re: Line of Sight Issues
6-8, 18 n.7 (served Oct. 25, 2002) ("US SJ Mem."). If, as Mr. Hurley
alleges, AMC in fact moved seats in traditional-style theaters after
[Fiedler]{.underline}, it had more to do with offering dispersal of
wheelchair seats (in AMC theaters that were still exclusively
"traditional" sloped floor theaters at the time) than with providing
"comparable lines of sight." Paragraph 4 is no more than a self-serving
attempt to provide AMC's legal arguments with otherwise nonexistent
factual support.

**[Paragraph 7]{.underline}**

Paragraph 7 of the Hurley declaration states:

> ***In response to this decree (referring to [Connie Arnold v. United
> Artists]{.underline}, Case No. C 93 0079 THE (N.D. CA.), AMC modified
> the plans for all future theaters to meet the fourth row criteria in
> all auditoriums.***

Paragraph 7 is objectionable on several grounds, and should be stricken
for the many of the same reasons as paragraph 4, above. Mr. Hurley
purports to provide factual information regarding AMC's decisions about
seat locations in its theaters following the April 1996 consent decree
entered in [Arnold v. United Artists]{.underline}, a case in which AMC
was not directly involved and about which Mr. Hurley alleges no facts
demonstrating any personal knowledge. The original [Arnold]{.underline}
agreement, which followed soon after the [Fiedler]{.underline} decision,
was negotiated in spring 1996, less than a year after
[Fiedler]{.underline}, and like [Fiedler]{.underline}, the original
[Arnold]{.underline} agreement primarily addressed dispersal of seating
in traditional style movie theaters. The [Arnold]{.underline} agreement,
predated the construction of all but the earliest stadium style
theaters, the first of which AMC opened in May 1995.[^3]
[See]{.underline} Statement of Uncontroverted Facts and Conclusions of
Law In Support of Plaintiff United States' Motion for Partial Summary
Judgment Re: Line of Sight Issues ¶ 3 (served Oct. 25, 2002)
\[hereinafter "US SJ Facts"\].

Besides lacking a factual basis for paragraph 7 of his declaration, Mr.
Hurley's statement on its face is vague and misleading. It is not clear
from the declaration what Mr. Hurley means by the language *"AMC
modified the plans for all future theaters.*" His statement does not
cite facts to describe the extent of "modifications," the meaning of
"all future theaters," the costs, or the specific nature of any such
"modifications." Mr. Hurley only says that "AMC modified plans," then he
says that the plans for future theaters were modified "to meet the
fourth row criteria in all auditoriums." Presumably, he is using
shorthand for the first of the two [Arnold]{.underline} agreements to
describe the nature of changes that AMC actually made, although it is
impossible to tell from this declaration what "the fourth row criteria,"
means or what changes AMC made.

Mr. Hurley plainly does not have, and does not specifically allege that
he has, personal knowledge of these matters, nor does he allege that he
was acting as counsel to AMC during that time period. Indeed, Mr.
Hurley's statement, like paragraph 4, is self-serving, conclusory, and
contains unsubstantiated hearsay lacking any reference to the factual
record. Paragraph 7 should be stricken because it fails to satisfy Rule
56(e) requirements.

**[Paragraph 9]{.underline}**

Paragraph 9 of Attorney Hurley's declaration provides:

> ***In December of 1998, the Department advised AMC that it would file
> suit unless AMC agreed that §4.33.3 required wheelchair spaces to
> provide viewing angles that were at the median or better than the
> viewing angles provided to patrons in the stadium portion of the
> auditorium.***

Paragraph 9 should be stricken because it contains statements that are
conclusory, not based upon Mr. Hurley's personal knowledge, and that are
incorrect and misleading representations of pre-filing settlement
discussions between the United States and AMC. Between October 1998 and
the January 1999 filing date in this case, AMC counsel Robert Harrop and
Justice Department attorney Jeanine Worden exchanged several letters
trying to reach an agreement following nearly two years of investigation
of AMC theaters. [See]{.underline} US SJ Facts ¶¶ 35-36. The United
States was obligated by Executive Order 12988 (February 5, 1996) to
discuss settlement before filing suit. None of the written
correspondence that predated the filing of this lawsuit demanded that
AMC "provide viewing angles that were at the median or better than the
viewing angles provided to patrons seated in the stadium portion of the
auditorium." There were contemporaneous conversations between Mr. Harrop
and Ms. Worden about settlement; however, even assuming the subject came
up in conversation at that time, Mr. Hurley's statement is hearsay,
especially because he did not join in the settlement negotiations.[^4]
This paragraph is inadmissible because Mr. Hurley lacks personal
knowledge and has not specified facts sufficient to show that he has
actual knowledge of relevant facts. Moreover, AMC counsel may not
introduce any privileged dialogue from pre-filing settlement
discussions; such settlement discussions are privileged and are
inadmissible pursuant to Federal Rule of Evidence 408.

**[Paragraph 15]{.underline}**

Paragraph 15 of the Hurley declaration states:

> ***Less than two months after becoming aware of the Department's
> position as set forth in the Lara brief, AMC changed its design
> criteria to require that wheelchair spaces be placed in the stadium
> seating area and that they provide specific viewing angles to the top
> of the screen.***

For the same reasons that paragraphs discussed above are inadmissible,
paragraph 15 should also be stricken. In his declaration, Mr. Hurley
does not specify a particular date when AMC modified its "design
criteria" nor does he describe what those "design criteria" include, so
it is impossible to determine what his statement means and whether it is
true.[^5] He says that within "two months after becoming aware of the
Department's position in [Lara]{.underline}" -- a phrase that does not
specify when AMC actually *became* aware of "the Department's position
in [Lara;]{.underline}" It may have been immediately after the United
States filed its *amicus* brief in United States District Court on July
24, 1998, or later when appellate briefs were filed, or two months after
whatever date AMC actually learned of the [Lara]{.underline} briefs --
it is impossible to tell from the declaration.

Mr. Hurley goes on to state that AMC moved the wheelchair locations "to
the stadium seating area," but he does not specify what that means. He
refers to no facts, plans, or evidence about wheelchair seating
locations in different theaters, and more importantly, whether they
offer lines of sight comparable to those for members of the general
public. Finally, Mr. Hurley says that AMC provided "*specific* viewing
angles to the top of the screen" from those wheelchair locations, but he
does not state whether "specific viewing angles" included horizontal and
vertical angles or others; nor does he explain what "specific" means,
how AMC measured viewing angles, or how they compare to those offered to
other members of the general public. In sum, Mr. Hurley's statement is
so vague that it has no meaning and he fails to allege facts sufficient
to support his allegations. In paragraph 15, Mr. Hurley addresses issues
that appear to be outside his personal knowledge and his declaration
does not affirmatively set forth the basis for his statements, as
required by Rule 56(e), and is thus deficient and should be stricken.

**[Paragraph 16]{.underline}**

Paragraph 16 of the Hurley Declaration states:

> ***Of the 83 complexes at issue in this suit, nearly 75% were designed
> before the Department promulgated its position in
> [Lara.]{.underline}***

Just like his earlier paragraphs, Mr. Hurley's statement here is
unsubstantiated by any factual support and should be stricken because he
has not alleged facts specific enough show that he has personal
knowledge about the allegations in the paragraph, and the paragraph is
inconsistent with information provided to the United States in
discovery. AMC currently operates 84 stadium style theater complexes
that are at issue in this lawsuit, not 83. [See]{.underline} US SJ Facts
¶ 9. More importantly, the statement that 75 percent of AMC's
stadium-style complexes "were designed before the Department promulgated
its position in Lara" is vague, misleading, and inaccurate. The United
States' *amicus* brief was filed in the United States District Court for
the Western District of Texas in [Lara v. Cinemark]{.underline} on July
24, 1998. [See]{.underline} US SJ Mem. at 16-17. The declaration states
that 75 percent of AMC theaters were "designed" before
[Lara]{.underline}, but that term is both broad and imprecise, and may
reasonably include anything from preliminary discussions, to drafting
initial drawings, to final design changes to a new theater ready to
open.[^6] In [Lara]{.underline}, the United States only clarified the
longstanding requirement to provide "comparable lines of sight," a term
well-understood by AMC and the industry. [See]{.underline}
[Id]{.underline}. Moreover, the requirement for "comparable lines of
sight" in assembly areas has been in place since the ADA's title III
regulation was published in 1991, and before that the same language was
published in the 1980 ANSI model code that also applies to assembly
areas. [See]{.underline} ANSI Section 4.33.3 (1980) (copy attached as
Exhibit C).

**[Paragraph 17]{.underline}**

Paragraph 17 of the Hurley declaration states:

> ***Twelve of the complexes at issue in this case are located in the
> Fifth Circuit: Deerbrook 24, Houston; First Colony 24, Dallas; Grand
> 24, Dallas; Grapevine 30, Dallas; Grand Pointe 30, Houston; Huebner
> Oaks 24, San Antonio; Katy Mills 20, Houston; Mesquite 30, Houston;
> Palace 9, Ft. Worth; Stonebriar, Dallas; Studio 30, Houston; and
> Willowbrook 24, Houston.***

The United States does not dispute that the cities listed are all in
Texas, or that Texas is located within the jurisdiction of the United
States Court of Appeals for the Fifth Circuit; however, once again Mr.
Hurley fails to provide any factual support for his claims that each of
these theaters is actually located in the cities he identifies. The
declarant's failure to provide even minimal facts from the record to
support his statement renders the allegations inadmissible pursuant to
Rule 56(e).

**Conclusion**

Paragraphs 4, 7, 9, 15, 16, and 17 of the Gregory F. Hurley declaration
do not constitute evidence that is properly admissible under Rule 56(e)
of the Federal Rules of Civil Procedure, because Mr. Hurley lacks
personal knowledge, fails to put forth facts that would be admissible,
or does not provide facts affirmatively showing that he is competent to
testify about matters discussed in the various paragraphs. Paragraphs 3,
5, 6, 8, 11, 12, 13 are intended to introduce documents that Mr. Hurley
seeks to admit into evidence; however, those paragraphs also fail to
satisfy the requirements of Rule 56(e) of the Federal Rules of Civil
Procedure. The United States respectfully requests that the Court strike
objectionable paragraphs of the declaration of AMC counsel Gregory F.
Hurley submitted in support of defendant's motion for summary judgment.

DATED: Oct. 25, 2002

> Respectfully submitted,
>
> RALPH F. BOYD, JR.
>
> Assistant Attorney General
>
> Civil Rights Division
>
> JOHN S. GORDON
>
> United States Attorney
>
> JOHN L. WODATCH, Chief
>
> PHILIP L. BREEN, Special Legal Counsel
>
> RENEE M. WOHLENHAUS, Deputy Chief
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> GRETCHEN E. JACOBS
>
> PHYLLIS M. COHEN
>
> KATHLEEN S. DEVINE
>
> DOV LUTZKER
>
> KRISTAN S. MAYER
>
> JOSEPH C. RUSSO
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> Counsel for Plaintiff
>
> United States of America

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on this \_\_ day of October, 2002, true and
correct copies of **Memorandum In Support of United States' Motion to
Strike Declaration of Attorney Gregory F. Hurley** were served by
Federal Express, postage pre-paid, on the following parties:

Gregory F. Hurley

Kutak Rock LLP

Suite 1100

18201 Von Karman

Irvine, CA 92612-1077

Robert J. Harrop

Lathrop & Gage L.C.

Suite 2500

2345 Grand Boulevard

Kansas City, MO 64108-2684

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Gretchen E. Jacobs

[^1]: Pursuant to 28 U.S.C. § 1746, declarations may substitute for
    sworn affidavits so long as the declaration includes an averment
    that the statement is true and correct "under penalty of perjury."

[^2]: Mr. Hurley was not counsel of record in the [Fiedler]{.underline}
    litigation. [See]{.underline} [Fielder v. AMC]{.underline}, 871
    F.Supp. 75 (D.D.C. 1995)(AMC counsel identified as Norman Knopf).

[^3]: A supplemental stipulation was entered among the parties in
    [Arnold v. United Artists]{.underline} in January 2001 to amend the
    consent decree to specify terms for location of wheelchairs in newly
    constructed United Artists stadium style theaters. [See]{.underline}
    Exhibit A.

[^4]: AMC's Rule 30(b)(6) witness (Mr. Philip Pennington) referred in
    his deposition to settlement discussions that took place in Summer,
    2000, after the suit was filed, when the Department met with the
    National Association of Theater Owners, and with Mr. Harrop and Mr.
    Pennington on behalf of AMC, along with attorneys for Cinemark.
    Testifying as a Rule 30(b)(6) witness, Mr. Pennington said, "As I
    recall the discussions of -- of the median issue, if you will, it
    was in the context of settlement." [See]{.underline} Deposition
    Transcript of Philip Pennington 244 (Oct. 24, 2002) (excerpted copy
    attached as Exhibit B).

[^5]: Interestingly, when the AMC Rule 30(b)(6) witness was asked when
    AMC became aware of the United States' *amicus* brief filed in [Lara
    v. Cinemark]{.underline}, in the Western District of Texas, the
    witness answered, "I don't know." [See]{.underline} Pennington Dep.
    Tr. at 339. He went on to say that the only way to determine when
    AMC learned about the United States' brief in [Lara]{.underline}
    would be to refer to AMC mail files "That's-- again, that's based on
    assuming it was received and assuming it's still there."
    [Id.]{.underline}

[^6]: A list of AMC "Stadium-Style" Theaters produced by AMC during the
    course of discovery in this action shows that 53 complexes were
    opened by AMC on or before July 24, 1998, which constitutes
    approximately 65 percent of all AMC stadium style complexes opened.
    [See]{.underline} Appendix (Volume One) of Declarations and Exhibits
    In Support of Plaintiff United States' Motion for Partial Summary
    Judgment Re: Line of Sight Issues, Ex. 1 (served Oct. 25, 2002).