Number range CHAPTER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff

v\.

CINEMARK USA, INC.,

Defendant.

§ CIVIL ACTION NO. 1:99CV-705

§

§ Hon. Donald C. Nugent

§

§ **PLAINTIFF UNITED STATES'**

§ **OPPOSITION TO DEFENDANT\'S**

§ **MOTION FOR PARTIAL**

§ **SUMMARY JUDGMENT FOR ALL**

§ **STADIUM-STYLE MOVIE**

§ **THEATERS WITHIN THE FIFTH**

§ **CIRCUIT**

**PLAINTIFF UNITED STATES\' OPPOSITION TO DEFENDANT\'S MOTION FOR
PARTIAL SUMMARY JUDGMENT FOR ALL STADIUM-STYLE MOVIE THEATERS WITHIN THE
FIFTH CIRCUIT**

**INTRODUCTION**

Defendant Cinemark\'s Motion for Partial Summary Judgment for its
stadium-style movie theaters located within the Fifth Circuit is
premature and misconstrues both the United States\' appellate arguments
and the Sixth Circuit\'s opinion reversing and remanding this Court\'s
grant of summary judgment to Defendant. Partial summary judgment is
*not* appropriate prior to this Court\'s determination of liability in
this nationwide pattern or practice lawsuit.

# STATEMENT OF UNDISPUTED FACTS

1\. The United States\' Complaint in this action alleges that Cinemark
has engaged in a pattern or practice of violating Title III of the ADA,
42 U.S.C. §§ 12181-12189, in the design, construction, and operation of
movie theaters with stadium-style seating across the country. Complaint
¶¶ 1-2, 19, 24. ECF docket #123, attachment #1; ADA Accessibility
Guidelines for Buildings and Facilities (\"ADA Standards\") § 4.33.3, 28
C.F.R. Part 36, Appendix A.

2\. Cinemark currently owns and operates approximately 76 stadium-style
movie theater complexes throughout the United States. Approximately 32
of these theaters are located in Texas, Louisiana, and Mississippi.
[See]{.underline} Cinemark\'s website,
http://www.cinemark.com/tspage.asp, attached as Exhibit 1A.[^1]

3\. The United States previously produced some evidence that Cinemark\'s
wheelchair seating locations have obstructed views of the screen: the
United States offered copies of Cinemark\'s own press releases touting
the advantages of its *stadium-style seating* as offering \"greater
visibility and enhanced, ***unobstructed*** sight lines to the screen.\"
United States\' Appendix to Cross Motion for Partial Summary Judgment
(\"US App. Cross Motion\"), tab 8 (*Cinemark I,* docket #80).

4\. The United States previously submitted other evidence that shows
that elevated, or stadium seating, was installed by movie theaters to
eliminate obstructions in lines of sight to the screen, yet most of
Cinemark\'s wheelchair seating locations are not provided in the
elevated, stadium seating portion of its auditoriums, but instead are
located in the traditional, sloped or flat areas closest to the screen.
Thus, its wheelchair seating locations do not meet even
[Lara]{.underline}\'s minimal requirement of providing an unobstructed
view of the screen. *See* Cinemark\'s (First) Motion for Summary
Judgment at ¶ 7 (*Cinemark I*, docket #28); United States\' Appendix in
Support of Cross Motion (*Cinemark I*, docket #80), tab 3, ¶ 6
(stadium-style seating "eliminates virtually all obstructions to sight
lines caused by lack of visual clearance over patrons seated immediately
in front of any particular seat"); [id.]{.underline}, tab 4, ¶¶ 4-5
(same); United States\' Memorandum in Support of Cross Motion for
Summary Judgment, Facts at 17 (*Cinemark I*, docket #79); United
States\' Appendix in Support of Cross Motion (*Cinemark I*, docket #80),
tab 9, ¶ 12 (affidavit of Steven John Fellman describing the view to the
screen from stadium-style seating as "less obstructed, if not completely
unobstructed. Theater patrons have less difficulty seeing over the heads
of tall persons wearing hats."); and United States\' Appendix in Support
of Cross Motion (*Cinemark I*, docket #80), tab 10, ¶ 12 (affidavit of
William F. Kartozian-\"The change from sloped -floor auditoria to
stadium-style auditoria has been very popular. The view to the screen is
less obstructed. Theater patrons have less difficulty seeing over the
heads of tall persons or persons wearing hats.\").

5\. Evidence relied upon by Cinemark in its Second Motion for Summary
Judgment (*Cinemark I*, docket #70) does not prove that *all* wheelchair
seating locations in Cinemark's stadium-style movie theaters within the
Fifth Circuit have unobstructed views of the screens. Cinemark's
Appendix in Support of Second Motion for Summary Judgment, tab A (Harton
Affidavit) ¶¶ 7, 10 (*Cinemark I*, docket #71) (\"A ***summary*** review
of \"as-built\" designs produced to the DOJ shows this to be true, and I
also know this to be true due to my position with Cinemark and personal
visits to ***many*** of these movie theaters.\") (Emphasis added.)

6\. Cinemark admits that the "elevated seating configuration" of
stadium-style seating "eliminates the 'obstructed view' problems \..."
Cinemark's Second Motion for Summary Judgment, Facts ¶ 2 (*Cinemark I*,
docket #70).

7\. Cinemark admits that wheelchair seating locations in its
stadium-style movie theaters are not on elevated seating.
[Id.]{.underline}, ¶ 3.

8\. Inspectors who reviewed Cinemark\'s Texas theaters for compliance
with the Texas Accessibility Standards (\"TAS\") did not make a
determination of whether wheelchair seating locations had unobstructed
views. Depositions of James Sheffield, pp. 38/l.19-41/l.9;
45/l.9-45/l.6; 56/l.23-57/l.9; 65/l.1-66/l.12 (July 3, 1998) and Terry
Lee Williams, pp. 52/l.9-53/l.15 (July 2, 1998) (both depositions called
by defendant Cinemark), [Lara v. Cinemark USA,]{.underline}, No.
EP-97-CA-502-H, 1998 WL 1048497 (W.D. Texas Aug. 21, 1998) (attached as
Exhibit 1B).

9\. The Sixth Circuit, in its opinion reversing and remanding this case,
stated that the principles of comity should *only* be considered by this
Court when determining the scope of relief to be ordered. [United States
v. Cinemark USA, Inc.]{.underline}, 348 F.3d 569, 584 (6^th^ Cir. 2003),
*petition for cert. filed*, 72 U.S.L.W. 3513 (U.S. Feb. 4, 2004) (No.
03-1131).

10\. Cinemark has filed a petition for *certiorari* before the United
States Supreme Court in this case. The primary issue in that petition is
whether ADA Standard 4.33.3\'s "comparable lines of sight" provision
requires more than an unobstructed view. [United States v. Cinemark
USA]{.underline}, 348 F.3d 569 (6^th^ Cir. 2003), *petition for cert.
filed*, 72 U.S.L.W. 3513 (U.S. Feb. 4, 2004)(No. 03-1131), Question 1
(attached as Exhibit 1C ). [^2]

11\. Regal Cinemas, through its counsel Laura M. Franze, has filed a
petition for *certiorari* before the United States Supreme Court in a
similar case. The primary issue in that petition is whether seating that
merely provides an "unobstructed view" of the screen in stadium style
movie theaters satisfies ADA Standard 4.33.3\'s requirement that
wheelchair seating "provides lines of sight comparable to those for
members of the general public." [Oregon Paralyzed Veterans of America v.
Regal Cinemas, Inc.]{.underline}, 339 F.3d 1126 (9^th^ Cir. 2003),
*petition for cert. filed,* 72 USLW 3310 (Oct 27, 2003)(No. 03-641*)*,
Question 1 (attached as Exhibit 1D ).

12\. Cinemark has previously admitted that the Sixth Circuit is not
bound by the decisions of sister circuits. *See* Cinemark\'s Opp. to US
Cross Motion for SJ at 14 (*Cinemark I,* docket #91).

**ARGUMENT**

A.  **PARTIAL SUMMARY JUDGMENT UNDER [LARA]{.underline} IS NOT
    APPROPRIATE AT THIS STAGE OF A PATTERN OR PRACTICE CASE**

In order to establish that a "pattern or practice" of discrimination in
violation of Title III of the ADA exists, the United States must show
that "the denial of rights consists of something more than an isolated,
sporadic incident, but is repeated, routine, or of a generalized nature
\... a company repeatedly and regularly engaged in acts prohibited by
the statute." [International Brotherhood of Teamsters v. United
States]{.underline}, 431 U.S. 324, 336, n.16 (1977) (citing 110 Cong.
Rec. 14270 (1964). Cinemark\'s many theaters located within the Fifth
Circuit constitute part of this \"pattern or practice.\" Discovery about
those theaters is necessary to establish that such a pattern or practice
of discrimination did in fact occur. The earlier summary judgment
decision in this case effectively pre-empted discovery about Cinemark's
liability nationwide for ADA Title III violations in failing to provide
"comparable lines of sight" for wheelchair seating in Cinemark theaters,
leaving the current fact record upon remand almost completely
undeveloped. Moreover, nothing in the Sixth Circuit's decision, the
briefs filed by the United States in this case, representations at oral
argument by counsel for the United States, published opinion, or
caselaw, supports Cinemark\'s specious claim that its stadium-style
movie theaters within the Fifth Circuit should be excluded from any
liability finding in this case, and, as such, these theaters are
appropriately included in the United States' case-in-chief on liability
and should be subject to adequate and reasonable discovery by the United
States.

In the Sixth Circuit, the United States argued that Cinemark\'s
assertion was premature that summary judgment for its theaters located
within the Fifth Circuit was appropriate. [See]{.underline} United
States\' Reply Brief in the Sixth Circuit at 18-19 (citing [Peveler v.
United States]{.underline}, 269 F.3d 693, 699 (6^th^ Cir. 2001)
(attached as Exhibit 1E). \"\[T\]he law in the Fifth Circuit will become
relevant at the ***remedial stage*** if the district court finds
Cinemark liable on remand. If *Lara* is still the law of the Fifth
Circuit at that time, the district court should not order relief
regarding the theaters within that Circuit \... **But, at the present
time, one cannot be sure that *Lara* will still be the law of the Fifth
Circuit on the \'lines of sight\' issue by the time the district court
is ready to enter judgment on remand**.\" [Id.]{.underline} (Emphasis
added; citations omitted.)

The Sixth Circuit denied Cinemark's request to affirm the this Court\'s
grant of summary judgment for all of its theaters located within the
Fifth Circuit and agreed with the United States that the
[Lara]{.underline} holding is only relevant at the remedial stage of
this litigation, when considering the \"scope of relief\" for
Cinemark\'s theaters within the Fifth Circuit. Cinemark asked the Sixth
Circuit to affirm this court\'s grant of summary judgment for all of its
stadium-style theaters within the Fifth Circuit. [Cinemark]{.underline},
348 F.3d at 584. The Sixth Circuit, making short shrift of Cinemark's
argument, stated \"\[t\]his pertains to the ***scope of relief***, and
therefore is a matter for the district court to decide consistent with
the principles of comity.\" [Id.]{.underline} (emphasis added); US
Opposition, Facts ¶ 9. This Court should likewise decline Cinemark's
invitation to limit review of this case by granting partial summary
judgment prematurely.

The Sixth Circuit\'s opinion and the mandate rule[^3] now require that
consideration of the effect of the Fifth Circuit\'s decision in [Lara v.
Cinemark]{.underline} on the instant action be reserved until after a
liability ruling on the United States\' pattern or practice claims.
[United States v. Moored]{.underline}, 38 F.3d 1419, 1421 (6^th^ Cir.
1994) (trial court precluded from reconsidering issue expressly or
impliedly decided by appellate court). Summary judgment is not only
premature at this time, but would violate the mandate rule.

B.  **CINEMARK\'S THEATERS LOCATED WITHIN THE FIFTH CIRCUIT MUST BE
    INCLUDED IN THE AMBIT OF DISCOVERY IN THIS CASE TO FAIRLY
    DEMONSTRATE CINEMARK'S PATTERN OR PRACTICE OF FAILING TO DESIGN,
    CONSTRUCT, AND OPERATE ITS THEATERS IN COMPLIANCE WITH THE ADA**

    1.  **Establishing Liability in This Pattern or Practice Case
        Requires Discovery About Defendant\'s Stadium-Style Movie
        Theaters Located Within the Fifth Circuit**

The Supreme Court established the proper structure for a pattern or
practice case stating that in such cases it is appropriate to divide
these cases into two stages -- the intial liability stage, and a
subsequent damages phase, if the government seeks individual relief for
the victims of the discriminatory practice. [International Brotherhood
of Teamsters v. United States]{.underline}, 431 U.S. 324 (1977).
Importantly, at least four district courts and the10^th^ Circuit have
held that the *Teamsters* framework is appropriate for a government ADA
pattern or practice claim.[^4]

In the Title VII context, during the liability stage, the government's
initial burden is to demonstrate that unlawful discrimination has been
the employer's regular procedure or policy.[^5] The employer may then
defeat the prima facie case by demonstrating that the government's proof
is either inaccurate or insignificant. [Id.]{.underline} at 360. "If an
employer fails to rebut the inference that arises from the Government's
prima facie case, a trial court may then conclude that a violation has
occurred and determine the appropriate remedy. Without any further
evidence from the Government, a court's finding of a pattern or practice
justifies an award of prospective relief." [Id.]{.underline} at 361.

Thus, in order to establish liability in this pattern or practice
discrimination suit against Cinemark, the United States must offer
evidence sufficient to establish a prima facie case that Cinemark
followed a pattern, or had a practice, of designing and constructing its
stadium-style movie theaters in violation of ADA Standards 4.33.3. To do
this, the United States must prove \"more than the mere occurrence of
isolated or \'accidental\' or sporadic discriminatory acts. It ha\[s\]
to establish by a preponderance of the evidence that \... discrimination
\[is\] the company\'s standard operating procedure \... rather than the
unusual practice.\" [Teamsters]{.underline}, 431 U.S. at 336. The burden
would then shift to Cinemark to attempt to demonstrate that the United
States\' proof is either

inaccurate or insignificant. [Id.]{.underline} at 360. Based upon the
[Teamsters]{.underline} framework, the United States\' proof of
Cinemark\'s discriminatory pattern or practice is sufficient to support
a finding that any stadium-style movie theater designed or constructed
during the period of the discriminatory practices was itself designed or
constructed following such pattern or practice. [Id.]{.underline} at
362.

A large percentage, approximately forty (40) percent, of Cinemark\'s
stadium-style movie theaters are located within the Fifth Circuit and
these theaters appear to encompass most, if not all, design generations
of Cinemark's stadium style theaters. Discovery related to *all* of
Cinemark\'s stadium-style movie theaters is therefore necessary and
relevant to establish that Cinemark engaged in a *nationwide* pattern or
practice of failing to design, construct, and operate its stadium-style
movie theaters in violation of the ADA. [United States v. International
Assoc. of Bridge, Structural and Ornamental Iron Workers, Local No.
1]{.underline}, 438 F.2d 679, 683 (7^th^ Cir. 1971)(pretrial discovery
in civil rights action should not be limited; past conduct, *even if
lawful*, relevant to establish a pattern or practice of discrimination).
Thus, even *if* Cinemark's stadium-style movie theaters located within
the Fifth Circuit provide unobstructed views for its wheelchair seating
locations, a fact disputed by the United States (US Opposition, Facts ¶¶
3-7), the United States should be allowed discovery of those theaters
and those theaters should be included in order to prove its claim that
Cinemark has engaged in an unlawful pattern or practice.

More importantly, the Sixth Circuit has already made very clear that the
Fifth Circuit decision in [Lara]{.underline} is only to be considered in
any remedial phase of these proceedings. Therefore, this Court is not
bound by the [Lara]{.underline} decision in considering and determining
liability of the Defendant. [Cinemark]{.underline}, 348 F.3d at 584; US
Opposition, Facts ¶¶ 9, 12; [Peveler]{.underline}, 269 F.3d at 699;
[Nixon v. Kent County]{.underline}, 76 F.3d 1381, 1388 (6^th^ Cir. 1996)
(circuit courts not required to follow views of other circuit courts,
especially if the other circuits\' opinions are \"based upon an
incomplete or incorrect analysis.\"). In addition, the Sixth Circuit has
also already determined that its decision in the instant case, although
in conflict with the [Lara]{.underline} decision, does not place
Cinemark in an "impossible position" due to "inconsistent legal
obligations." [Cinemark]{.underline}, 348 F.3d at 579.[^6] There is,
therefore, no legal impediment to a finding that Cinemark's
stadium-style movie theaters nationwide, including its theaters within
the Fifth Circuit, fail to comply with ADA Standard 4.33.3 and discovery
about theaters in the Fifth Circuit should be granted.

2.  **Discovery Related to Cinemark\'s Stadium-Style Movie Theaters
    Located Within the Fifth Circuit is Relevant to the United States\'
    Claims and to Cinemark\'s Defenses and is Reasonably Calculated to
    Lead to the Discovery of Admissible Evidence under F.R.Civ.Pro.
    26(b)(1)**

The Federal Rules of Civil Procedure authorizing discovery are to be
broadly and liberally construed. [Hickman v. Taylor]{.underline}, 329
U.S. 495, 507 (1947); [Burns v. Thiokol Chemical Corp.]{.underline}, 483
F.2d 300, 307 (5^th^ Cir. 1973) (\"open disclosure of all potentially
relevant information is the keynote of the Federal Discovery Rules\").
\"\[Liberal construction of discovery rules\] is particularly true in
complex civil rights cases. Certainly the relevancy requirement has been
liberally construed.\" [Laufman v. Oakley Bldg and Loan
Co.]{.underline}, 72 F.R.D. 116, 120 (S.D. Ohio 1976) (internal citation
omitted); [Williams v. United Parcel Service]{.underline}, No. C 79-401,
1982 WL 419 (N.D. Ohio Sept. 28, 1982) (scope of discovery in Title VII
case generally broad). Given the appropriately broad authority for
discovery, and the mandate of the Federal Rules of Civil Procedure,
Cinemark cannot be heard to argue that evidence of a pattern or practice
of ADA violations in forty percent of its theaters would not be relevant
to a finding of liability.

C.  **THE UNITED STATES HAS NOT WAIVED LIABILITY CLAIMS AGAINST
    CINEMARK'S STADIUM-STYLE MOVIE THEATERS WITHIN THE FIFTH CIRCUIT
    SIMPLY BECAUSE IT WILL NOT *CURRENTLY* SEEK REMEDIAL CHANGES IN
    THOSE THEATERS**

Cinemark repeatedly and purposefully misstates the United States'
position in order to make its implausible argument that partial summary
judgment must be granted because there is no present live controversy
regarding its theaters within the Fifth Circuit. Nothing could be
farther from the truth. In fact, every Departmental statement, written
or oral, that Cinemark relies on for this argument makes clear that,
until [Lara]{.underline} is no longer the law within the Fifth Circuit,
the United States will not ask this Court to order any *remedial*
measures for those theaters. However, the United States has never
withdrawn, nor does it now withdraw, its claims that even those theaters
within the Fifth Circuit violate ADA Standard 4.33.3, and are part of
Defendant\'s pattern or practice of failing to comply with ADA Standard
4.33.3. US Opposition, Facts ¶ 1. Nor does the fact that the United
States will not seek any remedial measures while [Lara]{.underline} is
the law in the Fifth Circuit convert this case into one seeking an
advisory opinion from the Court or diminish the ongoing \"live
controversy\" over Cinemark's liability for ADA violations. Instead, the
United States seeks a clear and unequivocal finding that Cinemark's
wheelchair seating locations *nationwide* violate ADA Standard 4.33.3,
and that Cinemark has engaged in a pattern or practice of designing,
constructing, and operating its stadium-style movie theaters in
violation of the ADA. Both [Hall v. Beals]{.underline}, 396 U.S. 45
(1969) and [Flast v. Cohen]{.underline}, 392 U.S. 83 (1968), cited by
Defendant, are therefore inapposite because the issues presented by the
United States are capable of resolution by this Court.

D.  **THE COURT SHOULD REJECT CINEMARK'S ARGUMENTS BASED UPON \"LAW OF
    THE CASE" DOCTRINE**

Notwithstanding Cinemark\'s protestations, \"law of the case\" does not
require this Court to carve out all Fifth Circuit theaters
[before]{.underline} the liability stage of this pattern or practice
case is completed. \"Unlike the more precise requirement of *res
judicata*, law of the case is an amorphous concept." [Arizona v.
California]{.underline}, 460 U.S. 605, 619 (1983). The Sixth Circuit has
held that "law of the case doctrine is 'directed to the court's common
sense and is not an 'inexorable command," and has articulated three
circumstances where previous findings can, and should, be reconsidered:
(1) where the prior decision is clearly erroneous and would work a
manifest injustice; (2) where substantially different evidence is raised
in a subsequent trial; or (3) when controlling authority has since made
a contrary decision of law applicable to the issues. [Hanover Ins. Co.
v. American Eng\'g Co.]{.underline}, 105 F.3d 306, 312 (6^th^ Cir.
1997), citing [Petition of U.S. Steel Corp.]{.underline}, 479 F.2d 489,
494 (6^th^ Cir.), *cert. denied*, 414 U.S. 859 (1973). [Coal Resources
Inc. v. Gulf & Western Industries, Inc.]{.underline}, 865 F.2d 761, 766
(6^th^ Cir. 1989). The United States submits that following remand from
the Sixth Circuit, the issues and law have changed thus satisfying the
Sixth Circuit standard for rejecting Cinemark's claim that "law of the
case" justifies summary judgment at this early stage.

In [Hanover]{.underline}, the Sixth Circuit held that "law of the case"
did not apply because the motion for summary judgment decided earlier in
the case was not based upon a complete record and did not present
identical issues to those that were before the court in the second
review. 105 F.3d at 312. Likewise in this case, in its first ruling this
Court essentially adopted the analysis in [Lara v. Cinemark USA,
Inc.]{.underline}, 207 F.3d 783 (5^th^ Cir. 2000), finding that "no
obstruction" in sight lines was the single element necessary to show
compliance with the ADA Standards. The Court granted Cinemark's motion
for summary judgement based upon the "no obstruction" holding in
[Lara]{.underline} before facts could be adequately developed in
discovery to satisfy the "comparable lines of sight" requirement urged
by the United States in both cases and now adopted by the Sixth Circuit.
Given the lack of an adequate record, the Court should now allow the
parties necessary discovery in order to determine whether Cinemark
satisfies the standard for ADA compliance, as interpreted by the Sixth
Circuit, that stadium-style theaters must provide wheelchair locations
with "comparable lines of sight," including viewing angles and other
relevant considerations. That is a different legal issue than this Court
decided initially and the "law of the case" doctrine should not be
applied to deny discovery necessary to evaluate whether Cinemark meets
the standards now set by the Sixth Circuit. Contrary to Cinemark's
baseless claims, "law of the case" does not limit the Court's authority
to permit full development of the facts and presentation of all the
issues in this second proceeding on remand. Furthermore, nothing in the
\"law of the case\" doctrine precludes this Court from reconsidering its
own previous decisions. [United States v. Todd]{.underline}, 920 F.2d
399, 403 (6^th^ Cir. 1990) (court has power to revisit prior decisions
of its own), *citing* [Christianson v. Colt Indus. Operating
Corp.]{.underline}, 486 U.S. 800, 817 (1988).

Another reason for revisiting the Court's earlier summary judgment
ruling is that the earlier judgment was granted in the face of
controverted facts. In response to Cinemark\'s Second Motion for Summary
Judgment, the United States presented evidence that wheelchair seating
locations in Cinemark\'s stadium-style movie theaters have obstructed
views of the screen. [See]{.underline} US Opposition, Facts ¶¶ 3-7. From
those cited public statements and affidavits, this Court can reasonably
infer the following: the elevated tiers of stadium-style movie theaters
eliminate all or most obstructions; most wheelchair seating locations
are not on elevated tiers but are in the front flat or sloped
non-elevated seating areas; therefore, the wheelchair seating locations
have obstructed views. [Anderson v. Liberty Lobby, Inc.]{.underline},
477 U.S. 242, 255 (1986) (court must afford reasonable inferences and
construe evidence in light most favorable to nonmoving party); [Petrey
v. City of Toledo]{.underline}, 246 F.3d 548, 553 (6^th^ Cir. 2001)
(summary judgment evidence must be construed in the light most favorable
to nonmoving party); [Cox v. Kentucky Dept. of
Transportation]{.underline}, 53 F.3d 146, 151 (6^th^ Cir. 1995)
(nonmoving party may rely on circumstantial and inferential evidence to
defeat motion for summary judgment). Since there is a factual dispute on
the issue of obstruction, Cinemark\'s Motion for Partial Summary
Judgment should be denied. [Celotex Corp. v. Catrett]{.underline}, 477
U.S. 317, 322 (1986) (summary judgment appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact" and "the moving party is entitled to
judgment as a matter of law."); [Anderson v. Liberty Lobby,
Inc.]{.underline}, 477 U.S. at 247-48 (same); Fed. R. Civ. P. 56(c).

E.  **ALTERNATIVELY, THE UNITED STATES SEEKS DISCOVERY PURSUANT TO RULE
    56(f) OF THE FEDERAL RULES OF CIVIL PROCEDURE**

Cinemark alleges that it is entitled to partial summary judgment based
upon the Fifth Circuit's [Lara]{.underline} decision that obstruction is
the only requirement pursuant to ADA title III Standard 4.33.3. The
Sixth Circuit has now ruled to the contrary and discovery should be
permitted to adequately address the Sixth Circuit's interpretation of
the law; however, even if the Sixth Circuit had limited the review to
whether there is an obstruction in the line of sight of wheelchair
locations in Cinemark theaters, the United States is entitled to
discovery about the obstruction in lines of sight in all of the
Cinemark's theaters, including those in the Fifth Circuit before
responding to a motion for summary judgment. Before Cinemark's Motion
for Partial Summary Judgment was filed, already pending were several
discovery requests by the United States remain pending.[^7] Pursuant to
Rule 56(f) of the Federal Rules of Civil Procedure, the United States is
entitled to responses to that discovery before a decision on the partial
summary judgment motion.[^8]

F.  **ACTION ON THE PENDING *PETITIONS FOR CERTIORARI* MAY LEAD TO
    REVERSAL OF THE FIFTH CIRCUIT'S [LARA]{.underline} DECISION, THUS
    CINEMARK'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS PREMATURE**

At the present time, two petitions for certiorari are pending before the
United States Supreme Court relating to ADA Standard § 4.33.3 and the
meaning of \"comparable lines of sight\" in stadium-style movie
theaters. [Oregon Paralyzed Veterans of America v. Regal Cinemas,
Inc.]{.underline}, 339 F.3d 1126 (9^th^ Cir. 2003), *petition for cert.
filed,* 72 U.S.L.W. 3310 (Oct. 27, 2003)(No. 03-641*)*, and [United
States v. Cinemark USA]{.underline}, 348 F.3d 569 (6^th^ Cir. 2003),
*petition for cert. filed*, 72 U.S.L.W. 3513 (Feb. 4, 2004)(No. 03-1131)
(ECF docket #126). US Opposition, Facts ¶¶ 10-11. It is quite likely
that either the Supreme Court will have decided about accepting one or
both of these petitions, or even have issued an opinion on the meaning
of ADA Standard 4.33.3 by the time this Court makes any findings on
liability in this case. [See]{.underline} Minutes of Status Conference
of January 26, 2004, ECF docket #124.

If the Supreme Court grants either or both petitions, its decision could
have a significant impact on these proceedings. Therefore, a stay of the
case at this stage of the remand proceedings would conserve scarce
judicial resources, and save both parties considerable time and expense.
[Cf.]{.underline} Cinemark\'s Motion for Partial Summary Judgment at 2
(expressing concern for time, money, and judicial resources in this
case). Staying proceedings would avoid later scheduling conflicts and
potential waste of resources depending upon the outcome in the Supreme
Court.

## CONCLUSION

The United States respectfully requests that this Court deny Cinemark\'s
Motion for Partial Summary Judgment for all Stadium-Style Movie Theaters
Within the Fifth Circuit. Alternatively, the United States respectfully
requests that this Court order a continuance of the motion pursuant to
Rule 56(f) of the Federal Rules of Civil Procedure to allow the United
States to conduct discovery previously served on Defendant prior to
Defendant\'s filing of its Motion for Partial Summary Judgment that will
enable the United States to better respond to Defendant\'s motion.

> Respectfully submitted,
>
> R. ALEX ACOSTA
>
> Assistant Attorney General
>
> Civil Rights Division
>
> JOHN L. WODATCH, Chief
>
> PHILIP L. BREEN, Special Legal Counsel
>
> RENEE M. WOHLENHAUS, Deputy Chief
>
> Disability Rights Section

Dated: \_[/s/ Phyllis M.
Cohen]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

> PHYLLIS M. COHEN
>
> KATHLEEN S. DEVINE
>
> ANGELA N. LIANG
>
> Trial Attorneys
>
> Disability Rights Section
>
> 950 Pennsylvania Avenue, NW
>
> Washington, DC 20530
>
> Disability Rights Section
>
> Telephone: (202) 514-3882
>
> Facsimile: (202) 307-1197/98
>
> Email: [phyllis.cohen@usdoj.gov]{.underline}
>
> Counsel for Plaintiff United States of America

[^1]: ^?^ Cinemark\'s current Motion for Partial Summary Judgment
    states, \"Cinemark owned and operated approximately 70 stadium-style
    movie theater multiplexes throughout the United States *at the time
    this lawsuit was filed*.\" Cinemark\'s Motion for Partial Summary
    Judgment for Theaters Within the Fifth Circuit at 2, ¶ 2 and
    supporting Affidavit of Don Harton. (ECF docket #132, attachment
    #1.) ***All*** of Cinemark\'s stadium-style movie theaters are
    covered by the United States\' pattern or practice allegations in
    the Complaint filed in this action.

[^2]: ^?^ A decision on the two *petitions for certiorari* is likely
    before the end of the current Supreme Court term.

[^3]: ^?^Under the mandate rule, after an appellate court has remanded a
    case to a lower court, the lower court must follow the decision that
    the appellate court has made in the case, unless new evidence or an
    intervening change in the law dictates a different result. Black\'s
    Law Dictionary (7th ed. 1999).

[^4]: ^?^[Davoll v. Webb]{.underline}, 194 F.3d 1116, 1148 (10^th^ Cir.
    1999); [United States v. AMC Entertainment, Inc.]{.underline}, 245
    F.Supp.2d 1094, 1100 (C.D. Cal. 2003); [EEOC v. Murray,
    Inc.]{.underline}, 175 F. Supp. 2^nd^ 1053, 1060 (M.D. Tenn. 2001);
    [United States v. City and County of Denver]{.underline}, 943 F.
    Supp. 1304, 1309 (D. Colo. 1996); [U.S. v. Morvant]{.underline}, 843
    F. Supp. 1092, 1096 (E.D. La. 1994).

[^5]: ^?^ In a Tenth Circuit Age Discrimination in Employment Act (ADEA)
    case, the court wrote,"proper consideration of defendant\['s\]
    motion for summary judgment must take into account the fact that
    \[plaintiffs\] were asserting a pattern-or-practice claim \...
    During the first stage of a pattern-or-practice case, for example, a
    summary judgment motion (whether filed by plaintiffs or defendants)
    must focus solely on whether there is sufficient evidence
    demonstrating that defendants had in place a pattern or practice of
    discrimination \..." [Thiessen v. General Electric Capital
    Corp.]{.underline}, 267 F.3d 1095, 1108-1109 (10^th^ Cir. 2001).
    [See]{.underline} [also]{.underline} [Teamsters]{.underline}, 431
    U.S. at 357-61.

[^6]: ^?^ \"\[T\]he \'inconsistent legal obligations\' that Cinemark
    will suffer from in this case do not appear to be insurmountable:
    any chain of stores that extends across state lines is subject to
    the different building codes of the various states in which it
    chooses to build a store (and probably to a variety of different
    local ordinances at each location as well). This is not such an
    \'impossible position\' as defendant would lead us to believe.\"
    [Id.]{.underline}, n.7.

[^7]: ^?^ On March 16, 2004, the United States served Cinemark with a
    Notice of Entry Upon Land pursuant to Rule 34 to inspect certain of
    its theaters, before Cinemark filed its Motion for Partial Summary
    Judgment. The United States selected ten of Defendant\'s
    stadium-style movie theaters for inspection - three (3) in Ohio and
    seven (7) in the state of Texas. The seven located in Texas
    represent theaters that opened in various years. One of the purposes
    for these inspections is to analyze the lines of sight, including,
    but not limited to, viewing angles and obstructions, within the
    auditoriums at the wheelchair seating locations and fixed seats and
    verify actual dimensions with architectural plans produced by
    Cinemark. At a minimum, the United States expects this evidence will
    refute Cinemark\'s assertion that its theaters provide wheelchair
    users with unobstructed lines of sight, and that they meet the
    so-called \"[Lara]{.underline} test.\" Because this evidence will
    contradict Cinemark\'s vague assertions of compliance with the
    [Lara]{.underline} test and render its request for partial summary
    judgment for its theaters within the Fifth Circuit improper, this
    Court should, at minimum, postpone ruling on the motion for partial
    summary judgment until after the United States conducts its already
    noticed inspections. [Celotex]{.underline}, 477 U.S. at 326 (1986).

[^8]: ^?^ Rule 56 of the Federal Rules of Civil Procedure states:

    > Should it appear from the affidavits of a party opposing the
    > motion that the party cannot for reasons stated present by
    > affidavit facts essential to justify the party\'s opposition, the
    > court may refuse the application for judgment or may order a
    > continuance to permit affidavits to be obtained or depositions to
    > be taken or discovery to be had or may make such other order as is
    > just.