UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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

)

SUSAN MEINEKER, et al., )

)

Plaintiffs, )

)

V. ) Civil No. 1:98-CV-1526

)

HOYTS CINEMAS CORPORATION, )

)

Defendant. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
)

**[UNITED STATES' OPPOSITION TO DEFENDANT HOYTS'S MOTION]{.underline}**

**[TO JOIN THE DEPARTMENT OF JUSTICE AS A PARTY-PLAINTIFF]{.underline}**

**TABLE OF CONTENTS**

**INTRODUCTION** 1

**ARGUMENT** 2

I. [Hoyts's Joinder Motion Is Untimely and Procedurally
Flawed]{.underline} 2

II\. [Sovereign Immunity Bars Joinder of the Department of Justice as
an]{.underline}

[Involuntary Plaintiff in this ADA Action]{.underline} 4

III\. [Neither the Pendency of the Hoyts Action Nor the Fact That This
Action]{.underline}

[Arises Under the ADA Supports a Finding That the Department of Justice
Is]{.underline}

[A "Necessary" Party Within the Meaning of Rule 19(a) Subject to
Compulsory]{.underline}

[Joinder]{.underline} 8

**CONCLUSION** 12

**TABLE OF AUTHORITIES**

**FEDERAL CASES**

> *Bedel v. Thompson*, 103 F.R.D. 78 (S.D. Ohio 1984) 10
>
> *Caprio v. Wilson*, 513 F.2d 837 (9th Cir. 1975) 7
>
> *Dew v. United States*, 192 F.3d 366 (2nd Cir. 1999),
>
> [cert. denied]{.underline}, 529 U.S. 1053 (2000) 4
>
> *Doe v. Civiletti*, 635 F.2d 88 (2nd Cir. 1980) 5
>
> *Federal Deposit Insurance Corp. v. Meyer*, 510 U.S. 471, 114 S. Ct.
> 996 (1994) 4
>
> *Field v. Volkswagenwerk AG*, 626 F.2d 293 (3d Cir. 1980) 10
>
> *Heckler v. Chaney*, 470 U.S. 821, 105 S. Ct. 1649 (1985) 7, 8
>
> *Hicks v. Intercontinental Acceptance Corp.*, 154 F.R.D. 134 (E.D.N.C.
> 1994) 6
>
> *K N Energy, Inc. v. Marathon Oil Co.*, 1983 WL 1430 (D. Neb. 1983) 6
>
> *Lane v. Pena*, 518 U.S. 187, 116 S. Ct. 2092 (1996) 5
>
> *Lonsdale v. United States*, 919 F.2d 1440 (10th Cir. 1990) 5
>
> *Mashpee Tribe v. New Seabury Corp.*, 427 F. Supp. 899 (D. Mass. 1977)
> 6
>
> *Micheel v. Haralson*, 586 F. Supp. 169 (E.D. Pa. 1983) 10
>
> *RPR & Associates v. O\'Brien/Atkins Associates, P.A.*,
>
> 921 F. Supp. 1457 (M.D.N.C. 1995) 10
>
> *S.E.C. v. Credit Bankcorp, Ltd.*, 297 F.3d 127 (2nd Cir. 2002) 5
>
> *State of New Jersey Department of Environmental Protection v.
> Gloucester*
>
> *Environmental Management Services, Inc.*, 668 F. Supp. 404 (D.N.J.
> 1987) 6, 7
>
> *Sturdevant v. Deer*, 70 F.R.D. 539 (E.D. Wisc. 1976) 6
>
> *United States v. Hoyts Cinemas Corp.*, 256 F. Supp. 2d 73 (D. Mass.
> 2003) 11
>
> *United States v. Mitchell*, 463 U.S. 206, 103 S. Ct. 2961 (1983) 4, 5

**FEDERAL STATUTES AND RULES**

> 5 U.S.C. § 551 5
>
> 28 U.S.C. § 1331 6
>
> 28 U.S.C. § 1343 6
>
> 42 U.S.C. § 12186(b) 8
>
> 42 U.S.C. § 12188(b) 8
>
> 42 U.S.C. § 12206 8
>
> Fed. R. Civ. P. 19(a) *passim*
>
> Fed. R. Civ. P. 24(b) 8

**MISCELLANEOUS**

> Charles A. Wright, et al., 7 [Federal Practice and
> Procedure]{.underline} § 1606 (3d ed. 2001) 7
>
> Charles A. Wright, et al., 7 [Federal Practice and
> Procedure]{.underline} § 1617 (3d ed. 2001) 4
>
> James Wm. Moore, 4 [Moore\'s Federal Practice]{.underline} § 19.03 (3d
> ed. 2003) 10

# INTRODUCTION

In late October 2003, Hoyts Cinemas Corporation ("Hoyts") filed a Motion
to Join the Department of Justice as a Party Plaintiff in this action.
[See]{.underline} Docket Nos. 88-90. Shortly thereafter, the United
States filed a Motion to Intervene as a party-plaintiff in this action.
[See]{.underline} Docket. Nos. 92-94.[^1] Hoyts's joinder motion and the
United States' intervention motion have thus "crossed paths" on the
court docket. Review of these dual filings reveals that the parties
mutually agree on one central issue \-- namely, that the United Status
should be granted party status in these remand proceedings. The parties
are also in apparent agreement that the rulings and judgment issued by
the District of Massachusetts in another stadium-style theater action
between the same parties styled [United States v. Hoyts Cinemas Corp.,
et al.]{.underline}, C.A. No. 00-12567-WGY (D. Mass.)
("[Hoyts]{.underline}") have preclusive effect in this action. However,
the parties nonetheless still strongly dispute the nature of, and proper
terms for, the United States' entry as a party in this action.

Because of the stark differences in practical and legal effects between
the two motions, the United States opposes Hoyts's compulsory joinder
motion and, instead, urges the Court to grant its motion to intervene
voluntarily as a party-plaintiff in this action. The United States'
opposition to Hoyts's joinder motion is, moreover, more than just a "tit
for tat" procedural tactic. Fundamental sovereign immunity principles
bar compulsory joinder of the Department of Justice in this action. In
addition, neither the pendency of the [Hoyts]{.underline} action nor the
fact that this litigation arises under Title III of the ADA make the
Department a "necessary" party within the meaning of Rule 19(a) subject
to compulsory joinder. Indeed, a finding that the Department of Justice
was a "necessary" party subject to compulsory joinder whenever a suit
involved the interpretation or application of the ADA or its
implementing regulations \-- as Hoyts argues \-- would severely
compromise Departmental resources given the thousands of private ADA
actions filed annually in federal courts nationwide. This Court should,
therefore, deny Hoyts's motion to join the Department of Justice as an
involuntary plaintiff in this action.

**[ARGUMENT]{.underline}**

I. [Hoyts's Joinder Motion Is Untimely and Procedurally
Flawed]{.underline}

Before addressing the substance of Hoyts's joinder motion, it bears
noting that this motion suffers from two significant procedural flaws
with respect to its timeliness and propriety under the Northern District
of New York's local rules. Whether considered individually or
collectively, these procedural problems counsel in favor of denying
Hoyts's motion to join the Department of Justice as an involuntary
party-plaintiff.

First, Hoyts inexplicably waited several years before filing its joinder
motion. Central to Hoyts's motion is its allegation that "\[t\]he DOJ
must be joined as a party-plaintiff to the case because the DOJ is
pursuing identical claims against Hoyts in the Massachusetts District
Court \[[Hoyts]{.underline} action\]." Memorandum of Law In Support of
Defendant's Motion to Join the Department of Justice as a
Party-Plaintiff 2 (filed Oct. 27, 2003) (Docket \# 90) ("Hoyts Joinder
Mem."). The United States, however, initiated the [Hoyts]{.underline}
enforcement action nearly three years ago in December 2000.
[See]{.underline} Affirmation of Michael J. Malone In Support of
Defendant's Motion to Join the Department of Justice as a
Party-Plaintiff, Ex. C (filed Oct. 27, 2003) ("Malone Aff.") (copy of
[Hoyts]{.underline} complaint). The [Hoyts]{.underline} and
[Meineker]{.underline} actions have thus been proceeding on parallel
tracks for several years. Yet nowhere does Hoyts address, let alone
attempt to justify, its three-year delay in filing the instant joinder
motion. Hoyts's unexplained tardiness in filing the instant joinder
motion thus not only calls into question the alleged "necessity" of the
Department's compulsory joinder, but also itself provides sufficient
basis for the denial of this motion. [See]{.underline} Fed. R. Civ.
Proc. 19 advisory Committee's note (1966 Amendments) ("undue delay in
making the \[joinder\] motion can properly be counted against \[the
moving party\] as a reason for denying the motion").

Second, Hoyts failed -- as required by local rule -- to file a proposed
amended complaint along with its motion for joinder. Local Rule
7.1(a)(4) for the Northern District of New York provides, in pertinent,
part: "An unsigned copy of the proposed amended pleading must be
attached to a motion brought under Fed. R.. Civ. P. 14, 15, 19-22.
Except as provided by leave of court, the proposed amended pleading must
be a complete pleading which will supersede the original pleadings in
all respects." Hoyts's failure to file this requisite proposed pleading
is, moreover, more than just a minor procedural inconvenience. Without a
proposed amended complaint, both the United States and this Court are
left to assess Hoyts's joinder motion in a contextual vacuum without any
understanding of the causes of action, factual allegations, or claims
for relief that Hoyts proposes the Department of Justice make as an
involuntary plaintiff in this action. Moreover, Hoyts's failure to file
a proposed amended complaint takes on heightened significance where, as
here, a defendant seeks to involuntarily join a federal agency as a
party-plaintiff in contravention of basic sovereign immunity principles.
[See]{.underline} discussion [infra]{.underline} pp. 4-8. Hoyts's
joinder motion should, therefore, be denied for failure to file a
proposed amended complaint as mandated by Local Rule 7.1(a)(4).

II\. [Sovereign Immunity Bars Joinder of the Department of Justice as an
Involuntary]{.underline}

[Plaintiff in this ADA Action]{.underline}

In addition to the foregoing procedural infirmities, Hoyts's motion to
join the Department of Justice as an involuntary party-plaintiff runs
afoul of well-established sovereign immunity principles. Absent an
express congressional waiver of sovereign immunity \-- which neither the
ADA nor any other statute at issue in this litigation provides \-- the
Department of Justice cannot be involuntarily joined as a party
litigant.

When a party seeks to subject the United States or an agency thereof to
compulsory joinder under Rule 19, sovereign immunity issues necessarily
come into play. As noted by Professors Wright and Miller, "\[t\]he
question of when the United States must be joined \[under Rule 19\] is
closely connected with the doctrine of sovereign immunity . . . . No
doubt because of the sovereign immunity concept, the application of Rule
19 in cases involving the government reflects a heavy emphasis on
protecting its interests." Charles A. Wright, et al., 7 [Federal
Practice and Procedure]{.underline} § 1617 (3d ed. 2001). Sovereign
immunity principles, in turn, dictate that "the United States may not be
sued without its consent and that the existence of consent is a
prerequisite for jurisdiction." [United States v. Mitchell]{.underline},
463 U.S. 206, 212, 103 S. Ct. 2961, 2965 (1983); [see]{.underline}
[also]{.underline} [Federal Deposit Ins. Corp. v. Meyer]{.underline},
510 U.S. 471, 475, 114 S. Ct. 996, 1000 (1994) ("Absent a waiver,
sovereign immunity shields the Federal Government and its agencies from
suit."); [Dew v. United States]{.underline}, 192 F.3d 366, 371 (2nd Cir.
1999), [cert. denied]{.underline}, 529 U.S. 1053 (2000). Moreover, a
waiver of sovereign immunity must be unequivocally expressed by Congress
in statutory text and, therefore, cannot be created through implication.
[See]{.underline}, [e.g]{.underline}., [Lane v. Pena]{.underline}, 518
U.S. 187, 192, 116 S. Ct. 2092, 2096 (1996); [S.E.C. v. Credit Bankcorp,
Ltd.]{.underline}, 297 F.3d 127, 141 (2nd Cir. 2002); [Doe v.
Civiletti]{.underline}, 635 F.2d 88, 93 (2nd Cir. 1980).[^2]

Applying the foregoing principles, it is plain that Hoyts has not -- and
cannot -- establish the requisite statutory waiver of sovereign immunity
in order to make the Department of Justice amenable to compulsory
joinder in this action. Title III of the ADA, under which this
stadium-style theater action arises, contains no explicit waiver of
sovereign immunity and, in any event, it is the inaccessibility of
Hoyts's stadium-style theaters at the Crossgates Mall that is at issue
here, not Department of Justice facilities. Nor can the necessary waiver
be found in the Administrative Procedure Act (5. U.S.C. § 551 *et seq*.)
since none of the operative pleadings in this action raise an
APA-related claim or defense. [See]{.underline}, [e.g]{.underline}.,
[Credit Bankcorp]{.underline}, 297 F.3d at 141 (rejecting argument that
APA § 702 waived sovereign immunity when parties did not complain of any
action or inaction by a federal agency); [Lonsdale v. United
States]{.underline}, 919 F.2d 1440, 1444 (10th Cir. 1990) (noting that
"\[t\]he Administrative Procedure Act itself is not a grant of
jurisdiction for the review of agency action . . . The language of this
section and the amendments thereto merely suggest that sovereign
immunity will not be a defense in an action in which jurisdiction
already exists.") (citations omitted); [Doe]{.underline}, 635 F.2d at 94
(same). Finally, general federal jurisdictional statutes \-- such as
those referenced in plaintiffs' complaint in this action \-- provide no
waiver of sovereign immunity. [See]{.underline}, [e.g]{.underline}.,
[Lonsdale]{.underline}, 919 F.2d at 1443-44 ("Sovereign immunity is not
waived by general jurisdictional statutes\[.\]"); [Doe]{.underline}, 635
F.2d at 94 (same); [see]{.underline} al[so]{.underline} First Amended
Complaint ¶ 3 (filed Feb. 12, 1999) (Docket \# 8) (invoking federal
jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343).

Thus, since sovereign immunity has not been waived by the ADA or any
other federal statute relevant to this action, the Department of Justice
cannot be compelled to join as a party in these remand proceedings.
[See]{.underline}, [e.g]{.underline}., [State of New Jersey Dep't of
Envtl. Protection v. Gloucester Environmental Management Services,
Inc.]{.underline}, 668 F. Supp. 404, 407 (D.N.J. 1987) (denying motion
to join United States Environmental Protection Agency as party pursuant
Rule 19(a) since neither federal environmental statutes nor APA § 701
waived sovereign immunity); [K N Energy, Inc. v. Marathon Oil
Co.]{.underline}, 1983 WL 1430, slip op. at \* 2-7 (D. Neb. 1983)
(holding that United States could not be joined as necessary party
pursuant to Rule 19(a) when operative statutes contained no express
waiver of sovereign immunity) (copy attached as Exhibit 1); [Mashpee
Tribe v. New Seabury Corp]{.underline}., 427 F. Supp. 899, 903-04 (D.
Mass. 1977) (United States could not be compelled to join action brought
by Indian tribe seeking declaration of right to possession of disputed
lands under Rule 19 because no waiver of sovereign immunity);
[Sturdevant v. Deer]{.underline}, 70 F.R.D. 539, 543 (E.D. Wisc. 1976)
(sovereign immunity barred compulsory joinder of United States in action
arising under Indian Civil Rights Act).

Nor can Hoyts avoid sovereign immunity issues by noting that its
compulsory joinder motion seeks to join the Department of Justice as a
party-plaintiff in this action, as opposed to a party-defendant.[^3] A
discussion of [State of New Jersey Dep't of Envtl. Protection v.
Gloucester Environmental Management Services, Inc.]{.underline}, 668 F.
Supp.404 (D.N.J. 1987) \[hereinafter "[Gloucester
Landfill]{.underline}") illustrates this point. In [Gloucester
Landfill]{.underline}, the State of New Jersey's Department of
Environmental Protection filed suit to apportion financial
responsibility among several defendants for the toxic cleanup of the
Gloucester landfill. [Id]{.underline}. at 406. Defendant waste
management companies thereafter sought to join the United States
Environmental Protection Agency as an involuntary plaintiff pursuant to
Rule 19(a) on the premise that the EPA's presence as a party was
required to prevent double liability as between state and federal
regulators. [Id]{.underline}. at 406-07. After reviewing the relevant
federal environmental and administrative statutes, the district court
found no waiver of sovereign immunity. [Id]{.underline}. Accordingly,
the district court held that sovereign immunity barred compulsory
joinder of the EPA in that action. [Id]{.underline}. The court was
unpersuaded, moreover, by defendants' argument that the sovereign
immunity calculus was somehow altered because they sought to align the
EPA as a party-plaintiff. The court flatly rejected this argument and
stated:

> \[T\]he court finds that joinder is still inappropriate. The EPA's
> prosecutorial discretion in taking enforcement actions is
> presumptively immune from judicial review \[citing [Heckler v.
> Chaney]{.underline}, 470 U.S. 821, 105 S. Ct. 1649 (1985)\] . . . The
> EPA's decision as to the timing of an enforcement action is one within
> its discretion.

[Id]{.underline}. at 407 (internal citation omitted). The court went on
to note that it nonetheless encouraged EPA's continuing ***voluntary***
participation in the proceedings (including settlement discussions) in
an effort to promote the efficient use of federal and state resources.
[Id]{.underline}.

The conclusions reached by [Gloucester Landfill]{.underline} apply with
equal force to this case. Congress granted primary enforcement authority
for Title III of the ADA to the Department of Justice, including the
responsibility for promulgating regulations, issuing technical
assistance materials, and filing lawsuits in federal court to enforce
compliance with the statute and accompanying regulations.
[See]{.underline} 42 U.S.C. §§ 12186(b), 12206, 12188(b). Neither Hoyts
nor this Court can dictate the terms or timing by which the Department
exercises its investigative and enforcement authority. Yet that is
precisely the effect of Hoyts's joinder motion which seeks to compel the
Department to join these remand proceedings as an involuntary plaintiff.
This Court should thus deny Hoyts's compulsory joinder motion as barred
by sovereign immunity. As with [Gloucester Landfill]{.underline},
however, it would nonetheless be appropriate for this Court to permit
the United States to participate voluntarily in this action \-- as the
United States is herein seeking to do through its pending intervention
motion \-- since doing so would not only help to ensure consistency
between this action and the [Hoyts]{.underline} litigation, but would
also avoid otherwise intractable sovereign immunity issues.

III\. [Neither the Pendency of the Hoyts Action Nor the Fact That This
Action Arises Under]{.underline}

[the ADA Supports a Finding That the Department of Justice Is A
"Necessary" Party]{.underline}

[Within the Meaning of Rule 19(a) Subject to Compulsory
Joinder]{.underline}

Hoyts's motion for compulsory joinder is also fatally flawed because
Hoyts fails to establish that the Department of Justice is a "necessary"
party within the meaning of Rule 19(a). Hoyts claims that the Department
of Justice should be compelled to join this action as a party-plaintiff
because: (i) the Department "has a long proclaimed statutorily mandated
interest in defending and promoting its interpretation of Section
4.33.3\" (Hoyts Joinder Mem. at 9); and (ii) the pendency of the
[Hoyts]{.underline} litigation subjects the corporation "to a
substantial risk of double, multiple or otherwise inconsistent
obligations imposed by the decisions in this action and those in [United
States v Hoyts]{.underline}" (Hoyts Joinder Mem. at 2, 10-12). Neither
of these arguments provides any basis for the Department's compulsory
joinder in this action.

First, Hoyts's sweeping proclamation that the Department of Justice must
be involuntarily joined as a plaintiff because the Department's
regulations are at issue in this litigation is meritless. Every year,
thousands of private ADA actions are filed in federal courts
nationwide.[^4] Thus, a finding that the Department of Justice was a
"necessary" party subject to compulsory joinder whenever, as here, a
suit involves the interpretation or application of the ADA or its
implementing regulations would severely compromise Departmental
resources. Interpreting Rule 19(a) as mandating the compulsory joinder
of the Department of Justice in any ADA-related action would, moreover,
squarely conflict with other sections of the federal rules authorizing
the *permissive* intervention of a federal agency in actions involving
statutes or regulations over which that agency has regulatory authority.
[See]{.underline} Fed. R. Civ. P. 24(b) ("When a party to an action
relies for ground of claim or defense upon any statute or executive
order administered by a federal or state governmental officer or agency
or upon any regulation . . . the officer or agency upon timely
application may be permitted to intervene in this action.").
Accordingly, the mere fact that this action involves interpretation of
the ADA and its implementing regulations does not make the Department a
"necessary" party within the meaning of Rule 19(a).[^5]

Second, the mere pendency of the [Hoyts]{.underline} action cannot be
said to make the Department a "necessary" party subject to compulsory
joinder in this litigation. As noted previously, [see]{.underline}
[supra]{.underline} pp. 2-3, Hoyts's claim of urgent necessity in
joining the Department as an involuntary plaintiff are directly
undermined by the fact that Hoyts waited nearly three years before
filing its joinder motion. If Hoyts believed that parallel litigation as
between this action and [Hoyts]{.underline} posed an undue risk of
multiple or inconsistent obligations, it could and should have attempted
to join the Department of Justice in December 2000 when the
[Hoyts]{.underline} action commenced. Hoyts's belated filing of the
instant joinder motion at this late juncture in the proceedings thus
calls into question the true "necessity" of the Department's presence as
an involuntary plaintiff in this action.

In any event, Hoyts misconstrues the meaning of Rule 19(a)(2)(ii)'s
"multiple liability" clause when arguing that the pendency of
[Hoyts]{.underline} might unfairly subject the corporation to multiple
or inconsistent judgments.[^6] This provision compels joinder of an
absent party to avoid inconsistent *obligations*, rather than merely
inconsistent results or adjudications. [See]{.underline},
[e.g]{.underline}., [Field v. Volkswagenwerk AG]{.underline}, 626 F.2d
293, 301-02 (3d Cir. 1980); [RPR & Assocs. v. O'Brien/Atkins Assocs.,
P.A.]{.underline}, 921 F. Supp. 1457, 1463 (M.D.N.C. 1995),
[aff'd]{.underline}, 103 F.3d 120 (4th Cir. 1996); [Bedel v.
Thompson]{.underline}, 103 F.R.D. 78, 81 (S.D. Ohio 1984); James Wm.
Moore, 4 [Moore's Federal Practice]{.underline} § 19.03\[4\]\[d\] (3d
ed. 2003). In other words, the "multiple liability" clause is not
generally intended to protect parties from differing outcomes in serial
litigation for damages or other remedial relief. As colorfully stated by
Professor Moore: "Simply put, having to write a check to one claimant
and not to another is not the sort of inconsistent obligation the clause
\[in Rule 19(a)(2)(ii)\] addresses." [Moore's Federal
Practice]{.underline} at § 19.03\[4\]\[d\], p. 19-60. Rather, the
"multiple liability" clause is intended to protect parties from
situations in which compliance with one court order might compel them to
breach the terms of a second inconsistent order. [See]{.underline},
[e.g]{.underline}., [Micheel v. Haralson]{.underline}, 586 F. Supp. 169,
171 (E.D. Pa. 1983) (distinguishing between inconsistent adjudications
and obligations and noting that "under . . . Rule \[19(a)(2)(ii)\] a
person is protected against situations in which there would be two court
orders and compliance with one might breach the other.").

Here, defendant Hoyts faces no such possibility of inconsistent court
orders such that compliance with the order issued in [Hoyts]{.underline}
might breach a second order subsequently issued by this Court. In the
[Hoyts]{.underline} litigation, the district court entered the following
remedial order:

> Judgment shall enter declaring that, with respect to all stadium-style
> theaters owned or leased by \[Hoyts or its co-defendant National
> Amusements, Inc.\] wherein construction or refurbishment . . . occurs
> on or after the date upon which this lawsuit commenced \[in December
> 2000\], Section 4.33.3 requires that wheelchair-accessible seating
> must be located within the stadium section.

[United States v. Hoyts Cinemas Corp.]{.underline}, 256 F.Supp.2d 73, 93
(D. Mass. 2003). Hoyts contends that, under the terms of this order, it
has no remedial obligation with respect to the stadium-style theaters at
the Crossgates Mall complex. [See]{.underline} Hoyts Joinder Mem. at 2,
10. Even assuming Hoyts's interpretation of the [Hoyts]{.underline}
order is correct -- a point which the United States strongly disputes,
there remains no possibility that a subsequent order issued by this
Court would cause Hoyts to incur inconsistent obligations within the
meaning of Rule 19(a)(2)(ii). That is, even if this Court were to hold
Hoyts in violation of the ADA and its implementing regulations and
thereby order Hoyts to relocate wheelchair seating areas to the stadium
sections of its stadium-style theaters at the Crossgates Mall complex,
compliance with such an order could hardly be said to breach the
[Hoyts]{.underline} order. At most, Hoyts would be subject to merely
inconsistent results for which Rule 19(a)(2)(ii)'s "multiple liability"
has no application. The Department of Justice, therefore, cannot be
considered a "necessary" party to this action subject to compulsory
joinder under Rule 19 simply by virtue of the possibility that this
Court and the [Hoyts]{.underline} court might ultimately reach different
conclusions -- though the United states believes that this will not come
to pass -- regarding Hoyts's ultimate liability and remedial obligations
concerning the Crossgates Mall stadium-style theater complex.

**[CONCLUSION]{.underline}**

For the foregoing reasons, the Court should deny Hoyts's motion to join
the United States Department of Justice as an involuntary plaintiff in
this action.

Dated: December 3, 2003

Respectfully submitted,

R. ALEXANDER ACOSTA

Assistant Attorney General

Civil Rights Division

GLENN T. SUDDABY

United States Attorney

JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal Counsel

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

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

GRETCHEN E. JACOBS

PHYLLIS M. COHEN

Trial Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

1425 N.Y. Avenue Building

Washington, D.C. 20530

Telephone: (202) 514-9584

Facsimile: (202) 616-6862

gretchen.jacobs@usdoj.gov

Counsel for Plaintiff-Intervenor

United States of America

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on this \_\_ day of December, 2003, true and
correct copies of the United States' Opposition to Defendant Hoyts's
Motion to Join the Department of Justice as a Party-Plaintiff were
served by Federal Express, postage pre-paid, on the following parties:

Timothy A. Clune

Disability Advocates, Inc.

5 Clinton Square - 3rd Floor

Albany, NY 12207-2201

Michael J. Malone

Patricia A. Griffin

King & Spaulding

1185 Avenue of the Americas

New York, NY 10036-4003

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

Gretchen E. Jacobs

[^1]: ^?^ A complete discussion of the procedural history and timing
    underlying the United States' motion for intervention is set forth
    in its moving papers and will not be repeated herein.
    [See]{.underline} Memorandum In Support of United States' Motion to
    Intervene 3-7, 9-12 (filed Nov. 12, 2003) (Docket \# 94).

[^2]: ^?^ Because of these sovereign immunity considerations, neither
    counsel for the United States nor any other Department of Justice
    official -- even if so inclined -- could consent to Hoyts's motion
    for compulsory joinder. [See]{.underline} [Mitchell]{.underline},
    463 U.S. at 215-16, 103 S. Ct. at 2967 ("no contracting officer or
    other \[federal\] official is empowered to consent to suit against
    the United States").

[^3]: ^?^ In addition to sovereign immunity considerations, Hoyts's
    compulsory joinder motion also runs counter to well-established
    caselaw holding that joining a party as an involuntary plaintiff is
    a "disfavored" procedural device that, in any event, requires the
    showing of a trust or other special relationship between the
    existing plaintiff and the putative involuntary plaintiff.
    [See]{.underline}, [e.g]{.underline}., [Hicks v. Intercontinental
    Acceptance Corp.]{.underline}, 154 F.R.D. 134, 135-36 (E.D.N.C.
    1994) (denying motion to join Federal Trade Commission as
    involuntary plaintiff pursuant to Rule 19(a) on ground that,
    [inter]{.underline} [alia]{.underline}, compelling joinder as a
    party-plaintiff was "disfavored" and moving party failed to
    establish requisite special relationship between FTC and private
    plaintiff); [Caprio v. Wilson]{.underline}, 513 F.2d 837, 838-40
    (9th Cir. 1975) (affirming district court's refusal to join United
    States Post Office as an involuntary plaintiff since no trust
    relationship existed between appellants and the Post Office);
    [see]{.underline} [also]{.underline} 7 [Federal Practice and
    Procedure]{.underline} § 1606 (describing joinder as an involuntary
    plaintiff pursuant to Rule 19(a) as procedural device historically
    limited to patent or copyright actions).

[^4]: ^?^ For example, according to LEXIS's Courtlink database, over
    3,000 private ADA actions were filed in federal courts in 2002.

[^5]: ^?^ While Hoyts's memorandum cites several cases in support of its
    argument that the Department should be compelled to join this action
    as an involuntary plaintiff under Rule 19(a) because its ADA
    regulations are here at issue, [see]{.underline} Hoyts Joinder Mem.
    at 9-10, these cases are inapposite. First, none of these cases even
    addressed sovereign immunity principles, let alone held that
    sovereign immunity presented no barrier to the compulsory joinder of
    a federal agency under Rule 19. Second, none of these cited cases
    addressed the issue of compulsory joinder of a federal agency as an
    involuntary plaintiff which, as discussed previously, presents
    substantially different considerations than joinder as a
    party-defendant. [See]{.underline} [supra]{.underline} pp. 6-7.

[^6]: ^?^ Rule 19(a)(2)(ii) provides, in pertinent part, that a person

    > shall be joined as a party in the action if . . . (2) the person
    > claims an interest relating to the subject of the action and is so
    > situated that the disposition of the action in the person's
    > absence may . . . (ii) leave any of the of the persons already
    > parties subject to a substantial risk of incurring double,
    > multiple, or otherwise inconsistent obligations by reason of the
    > claimed interest.