UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA, §

§ CIVIL ACTION NO.1:99CV-705

Plaintiff §

§ Hon. Donald C. Nugent

vs. §

§

CINEMARK USA, INC., §

§

Defendant. § **PLAINTIFF UNITED STATES'**

§ **OPPOSITION TO DEFENDANT'S**

§ [**REQUEST FOR COSTS** **AND FEES**]{.underline}

§

**PLAINTIFF UNITED STATES' OPPOSITION TO**

[**DEFENDANT'S** **REQUEST FOR COSTS AND FEES**]{.underline}

The United States opposes Defendant Cinemark, USA, Inc.'s ("Cinemark")
claim for costs and fees. The United States requests that the Court deny
Cinemark's claim because: (1) Cinemark is not entitled to costs and fees
under Rule 54(d) of the Federal Rules of Civil Procedure or 28 U.S.C. §
1920, as the United States may only be found liable for costs and fees
under the applicable ADA standard set forth in 42 U.S.C. § 12205; and,
(2) the prerequisites for an award for prevailing defendants under the
applicable ADA standard have not been met: the United States was not
frivolous, unreasonable, or without foundation in its action against
Cinemark.

**I. [FACTUAL AND PROCEDURAL HISTORY]{.underline}**

This action began in March 1999 when the United States filed a complaint
alleging that Cinemark engaged in a pattern or practice of violating
title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§
12181-12190, in the design, construction, and operation of movie
theaters with stadium-style seating. [See]{.underline} Complaint for
Declaratory and Injunctive Relief, Compensatory Damages, and Civil
Penalties. (Docket #1).

In June 1999, Cinemark filed a motion to dismiss, to transfer case to
the Northern District of Texas or for a stay of proceedings. (Docket
#5). Cinemark alleged that the case should be dismissed for improper
venue and because a suit filed by Cinemark in the Northern District of
Texas involved the same parties and issues. On August 31, 1999, this
Court denied Cinemark's motion to dismiss ruling that: (1) venue was
proper in the Northern District of Ohio; and (2) the

two lawsuits were not duplicative and did not raise identical facts or
legal issues. This Court also denied Cinemark's motion to transfer and
motion to stay proceedings. (Docket \# \# 15,16).

In September 1999, Cinemark filed its answer and counterclaims against
the United States. (Docket \# 17). In its counterclaims, Cinemark
alleged that the United States violated the Administrative Procedure Act
by improperly issuing a new rule without notice and comment rulemaking.
On January 10, 2000, Cinemark filed a motion for summary judgment based
upon the allegations in its counterclaims. (Docket \# 28). The United
States moved to dismiss Cinemark's counterclaims and opposed the summary
judgment motion, arguing that Cinemark had not demonstrated factually
that the United States has engaged in improper rulemaking under the APA.
(Docket \# 34).

On March 22, 2000, this Court granted the United States' motion to
dismiss Cinemark's counterclaims, and denied Cinemark's motion for
summary judgment. (Docket \## 47, 48). The Court held that the actions
taken by the United States \-- the filing of amicus briefs and
complaints and the issuance of correspondence discussing alleged
violations of the ADA, possible litigation, and settlement of our claims
\-- were not actions that are subject to the requirements of the APA.
Thus, the Court found that the APA waiver of sovereign immunity did not
apply and therefore there was no jurisdiction for the Court to hear the
claims. The Court also concluded that the other statutory and
constitutional claims were similarly without jurisdiction, and dismissed
those as well.

In December 2000, Cinemark filed a second motion for summary judgment.
(Docket \# 70). In its motion, Cinemark argued that its theaters comply
with Section 4.33.3. The United States opposed Cinemark's second motion
for summary judgment and filed a cross motion for partial summary
judgment. (Docket \## 76, 79). The United States argued that Cinemark
violated title III of the ADA by failing to integrate wheelchair seating
into the stadium section of its auditoriums; failing to provide persons
who use wheelchairs with lines of sight comparable to those provided to
members of the general public; and failing to provide persons who use
wheelchairs with an opportunity to enjoy the benefits of stadium seating
that is equal to the opportunity offered to the non-disabled public.

On November 19, 2001, this Court granted Cinemark's second motion for
summary judgment and denied the United State's cross motion for partial
summary judgment. (Docket \# 107). In finding for Cinemark, this Court
relied on [Lara v. Cinemark]{.underline}, 207 F.3d 783 (5th Cir.),
[cert]{.underline}. [denied]{.underline}, 531 U.S. 944 (2000), which
held that Standard 4.33.3 requires only that persons who use wheelchairs
be provided an unobstructed view of the screen. A final judgment was
issued on November 19, 2001. (Docket #108).

On December 27, 2001, Cinemark filed a request for costs and fees with
this Court. Cinemark seeks \$3,395.93 in photocopying costs and expert
witness fees. (Docket \# 109).

On January 16, 2001, the United States filed a notice of appeal of the
final judgment to the United States Court of Appeals for the Sixth
Circuit.

**II. [ARGUMENT]{.underline}**

> **A. [Section 12205 of the ADA Governs Cinemark's Request for Costs
> and Fees.]{.underline}**

Cinemark relies on Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920 as
authority for its request for costs and fees.[^1] (Cinemark Request at
1-2).[^2] Cinemark is not entitled to costs and fees under Rule 54(d) or
28 U.S.C. § 1920, as the United States may only be found liable for
costs and fees in appropriate cases under the applicable ADA standard.
42 U.S.C. § 12205.

Rule 54(d) provides that costs shall be awarded to the prevailing party
"\[e\]xcept when express provision therefor is made either in a statute
of the United States or in these rules \..." Fed. R. Civ. P. 54(d).
Section 12205 of the ADA provides courts with the discretionary
authority to award "a reasonable attorney's fee, including litigation
expenses, and costs" to private parties that prevail in ADA actions.
Thus, it is Section 12205 of the ADA -- rather than the federal rules --
which governs requests for costs by defendants who prevail in ADA-based
litigation. [Brown v. Lucky Stores, Inc.]{.underline}, 246 F.3d 1182,
1190 (9th Cir. 2001); [see]{.underline} [also]{.underline} [Shepard v.
Honda of America, Mfg., Inc.]{.underline}, 160 F. Supp. 2d 860, 975
(S.D. Ohio 2001) (ADA provision awarding costs to prevailing party
controls over Rule 54(d)). Similarly, a prevailing defendant must meet
the requirements of Section 12205 of the ADA to recover taxable costs
set forth in 28 U.S.C. § 1920. [Brown]{.underline}, 246 F.3d 1182, 1190
(ADA provision governs recovery of costs by prevailing defendant);
[see]{.underline} [also]{.underline} [Fite v. Digital Equip.
Corp.]{.underline}, 66 F. Supp.2d 232, 233-234 (D. Mass. 1999)(same);
[Red Cloud-Owen v. Albany Steel, Inc.]{.underline}, 958 F. Supp. 94, 97
(N.D.N.Y 1997)(same); [Rath v. Village of Lombard,
Illinois]{.underline}, 1996 WL 431828\* 6 (N.D. Ill, July 23,
1996)(same).

> **1. [The Christiansburg Standard Applies to a Request for\
> Costs and Fees by Prevailing Defendant in an ADA Suit]{.underline}**

Section 12205 of the ADA permits prevailing parties to recover
attorneys' fees and costs and provides that "the United States shall be
liable for \[such fees and costs\] the same as a private individual." 42
U.S.C. § 12205. The language of the ADA's fee-shifting statute is
substantially similar to the fee-shifting statute found in title VII of
the Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(k)), and courts have
held that fees should be awarded in the same or similar circumstances
under both provisions. [Tarter v. Raybuck]{.underline}, 742 F.2d 977,
987 (6^th^ Cir. 1984); [see]{.underline} [also]{.underline} [Bruce v.
Gainesville]{.underline}, 177 F.3d 949, 951 (11^th^ Cir. 1999); [No
Barriers, Inc., v. Brinker Chili's Texas, Inc.]{.underline}, 262 F.3d
496, 498 (5^th^ Cir. 2001); [Parker v. Sony Pictures Entertainment,
Inc.]{.underline}, 260 F.3d 100, 110 (2d Cir. 2001); [Bercovitch v.
Baldwin School, Inc.]{.underline}, 191 F.3d 8, 11 (1^st^ Cir. 1999).

In 1978, the Supreme Court interpreted title VII's fee-shifting statute,
holding that a prevailing defendant should not be awarded attorneys'
fees and costs unless plaintiff's actions were "frivolous, unreasonable,
or groundless, or that the plaintiff continued to litigate after it
clearly became so." [Christiansburg Garment Co. v. EEOC]{.underline},
434 U.S. 412, 421-22 (1978). The standard for a prevailing defendant set
out in [Christiansburg]{.underline} \[hereinafter "the
[Christiansburg]{.underline} standard"\], has been subsequently applied
to requests for costs and fees in other civil rights cases, including
ADA cases. [Riddle v. Egensperber]{.underline}, 266 F.3d 542, 547-48
(6^th^ Cir. 2001)([Christiansburg]{.underline} standard applies to
defendant's recovery of fees in civil rights case); [Muzquiz v. W.A.
Foote Memorial Hospital, Inc.]{.underline}, 70 F.3d 422, 432-33 (6^th^
Cir. 1995)([Christiansbur]{.underline}g standard applies to recovery of
costs and fees in civil rights case); [Gilmer v. City of
Cleveland]{.underline}, 617 F. Supp. 985, 987-88 (N.D. Ohio 1985)(same);
[see]{.underline} [Brown]{.underline}, 246 F.3d at
1190([Christiansburg]{.underline} standard applies to an award of costs
and fees to prevailing defendant in ADA).

> **2. [The United States May Not Be Held Liable For Costs and Fees
> Pursuant to the ADA Because It Did Not Act Frivolously In Litigating
> This Suit]{.underline}**

To be deemed "frivolous" or "meritless" for purposes of assessing a
prevailing defendant\'s attorney\'s fees, it is not enough that the
plaintiff ultimately lost his case. [Riddle]{.underline}, 266 F.3d at
551. To determine whether a claim is frivolous, unreasonable or
groundless, a court must determine the basis for the filing of the suit.
[Riddle]{.underline}, 266 F.3d at 548. An action is only frivolous under
§ 12205 if an action lacks an [arguable]{.underline} basis in law or in
fact, or plaintiff continues to litigate after it becomes clear that
action lacks factual substance. [Shutts v. Bentley Nevada
Corp.]{.underline}, 966 F. Supp. 1549, 1556 (D. Nev. 1997);
[see]{.underline} [also]{.underline} [Smith v. Smythe- Cramer
Co.]{.underline}, 754 F.2d 180, 184-85 (6th Cir. 1985)(there must be an
inadequate basis for suit to be deemed frivolous case). The United
States easily satisfies the legal standard for bringing and maintaining
its action against Cinemark.

First, shortly after the United States filed it complaint, Cinemark
filed a motion to dismiss arguing that the present suit and an action
filed in the Northern District of Texas were duplicative. This Court
held that the Texas suit was an independent suit for judicial review of
an agency action, while the present action seeks to enforce the
protections guaranteed by the ADA. This Court, therefore, denied
Cinemark's motion to dismiss. (Docket \## 15, 16). Because a motion to
dismiss tests the legal sufficiency of the allegations in plaintiff's
complaint, a court's denial of a motion to dismiss demonstrates that
plaintiff's complaint is not frivolous or "groundless at the outset."
[Riddle]{.underline}, 266 F.3d at 550. Accordingly, this Court's denial
of Cinemark's motion to dismiss establishes that the United States' suit
against Cinemark was not frivolous.

Second, in January 2000, Cinemark filed counterclaims alleging that the
United States violated the Administrative Procedure Act by improperly
issuing a new rule without notice and comment rulemaking, violated
Cinemark's due process rights, and violated the Federal Register Act.
(Docket #17). Based on its counterclaims, Cinemark filed a motion for
summary judgment. (Docket #28). This Court dismissed Cinemark's
counterclaims against the United States, and subsequently denied
Cinemark's motion for summary judgment as moot. (Docket \# 48). In
dismissing Cinemark's counterclaims, this Court held that:

> The DOJ has reason to believe that Defendant is violating the ADA. As
> such, it has engaged in settlement negotiations and has threatened,
> and now instituted, litigation.

(Memorandum Opinion and Order at 8)(Docker #48). Thus, by filing a
complaint against Cinemark and litigating this case, the United States
was merely fulfilling its mandate to enforce the ADA. 42 U.S.C. §
12188(b)(1)(A)-(B). The dismissal of Cinemark's counterclaims
demonstrates that the factual allegations and legal positions of the
United States were not frivolous.

Finally, the fact that this Court granted Cinemark's second summary
judgment motion does not support a holding that the United States'
claims were frivolous. (Docket #107). If a plaintiff continues to
litigate a case after discovery has concluded, and proceeds to summary
judgment, a favorable ruling for defendant on the motion for summary
judgment does not support conclusion that plaintiff's claims were
frivolous. [Riddl]{.underline}e, 266 F.3d at 550. In fact, even if
claims lack sufficient evidence to go forward, or are determined to be
precluded by legal precedent in this circuit or under state law, those
claims are not necessarily completely without foundation.
[Muzquiz]{.underline}, 70 F.3d at 433.

Although the Fifth Circuit in [Lara v. Cinemark]{.underline}, 207 F.3d
783 (5th Cir.), [cert]{.underline}. [denied]{.underline}, 531

U.S. 944 (2000) held that Standard 4.33.3 requires only an unobstructed
view to wheelchair patrons in stadium style theaters, there was no
controlling legal precedent preventing the United States from arguing
that Cinemark violated the ADA by failing to comply with Standard
4.33.3. [See]{.underline} [Smith v. Detroit Federation of Teachers,
Local 321]{.underline}, 829 F.2d 1370, 1376-77 (6^th^ Cir.
1987)(existing precedent did not establish that civil rights action was
frivolous). On January 16, 2001, the United States filed a notice of
appeal with the United States Court of Appeals for the Sixth Circuit.
The issue of whether stadium style theaters violate the ADA is an
emerging and developing area of disability law.

In an analogous case, [United States v. AMC Entertainment,
Inc.]{.underline}, No. CV-99-01034 FMC(SHx)(C.D. Cal. January 9, 2002),
a court denied prevailing defendant's request for fees because the
United States was litigating an open question regarding the
interpretation of the ADA.[^3] In the [AMC]{.underline} litigation, the
United States sued defendant, the architects who allegedly designed and
constructed some of the stadium style theaters, for violating the ADA.
Subsequently, the Ninth Circuit issued its decision in [Lonberg v.
Sanborn Theaters, Inc.]{.underline}, 239 F.3d 1029 (9^th^ Cir. 2001),
[amended]{.underline} [on]{.underline} [other]{.underline}
[grounds]{.underline}, 271 F.3d 954 (2001). In [Lonberg]{.underline},
the Ninth Circuit held that "only an owner, lessee, lessor, or operator
of a noncompliant public accommodation can be liable under Title III of
the ADA for the 'design and construct' discrimination described in §
12183(a)." [Lonberg]{.underline}, 259 F.3d at 1036. Thus, before
[Lonberg]{.underline} was decided, it was an open question in the Ninth
Circuit whether the United States could pursue a claim against designing
architects. Because the United States ceased pursuing its claim against
defendant once the [Lonberg]{.underline} decision was issued, the court
held that the United States' claim against defendant was not frivolous
or without foundation. [AMC]{.underline}, No. CV-99-01034 FMC(SHx), slip
op. at 3.

In sum, the United States' initiation and litigation of the case against
Cinemark was reasonable and with substantial legal merit. Because of the
danger that assessing costs and fees against unsuccessful plaintiffs
will discourage plaintiffs from asserting their civil rights, it is
rarely appropriate to do so. [Riddle]{.underline}, 266 F.3d at 547-48
(award of fees to prevailing defendant is limited to truly egregious
cases of misconduct by plaintiff). It is beyond cavil that this case
does not involve the type of egregious misconduct that warrants an award
of costs and fees. As such, Cinemark cannot demonstrate that the United
States' actions were frivolous, unreasonable, or without foundation.
Therefore, Cinemark may not recover costs and fees incurred in
litigating this case.

**[III. CONCLUSION]{.underline}**

Cinemark is not eligible for costs and fees pursuant to Rule 54(d) or 28
U.S.C. § 1920 as the United States may only be found liable for costs
and fees in appropriate cases under the applicable ADA standard. 42
U.S.C. § 12205. Nor has Cinemark met its burden of showing it is
entitled to costs and fees based on the fee-shifting standard applicable
to the ADA, which requires that Cinemark prove that the United States'
actions were frivolous, unreasonable, or without foundation. Cinemark is
not entitled to costs and fees because the United States was
substantially justified in bringing and maintaining an action against
Cinemark For the foregoing reasons, Cinemark's motion for costs and fees
should be denied.

> Respectfully submitted,
>
> RALPH F. BOYD, JR.
>
> Assistant Attorney General
>
> Civil Rights Division
>
> JOHN S. GORDON
>
> United States Attorney
>
> JOHN L. WODATCH, Chief
>
> L. IRENE BOWEN, Deputy Chief
>
> Disability Rights Section
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> MARGARET LEE BASKETTE
>
> HEATHER A. WYDRA
>
> DANIEL I. WERFEL
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> Counsel for Plaintiff
>
> United States of America

DATED: January 23, 2002

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on this 23 rd day of JANUARY, 2002, a true and
correct copy of **Plaintiff United States' Opposition to Defendant's
Request for Costs and Fees** was served by via first class mail to:

> Laura M. Franze, Esquire
>
> Akin, Gump, Strauss, Hauer & Feld, L.L.P.
>
> 1700 Pacific Avenue, Suite 4100
>
> Dallas, Texas 75204-4675
>
> Mary Adele Springman, Esquire
>
> Millisor & Nobil Co., L.P.A.
>
> 1228 Euclid Avenue, Suite 840
>
> Cleveland, Ohio 44115-1802
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> MARGARET L. BASKETTE
>
> Trial Attorney
>
> Disability Rights Section
>
> Civil Rights Division
>
> U. S. Department of Justice
>
> P. O. Box 66738
>
> Washington, D.C. 20035-6738
>
> (202)616-0330

[^1]: The two unpublished Sixth Circuit opinions cited by Cinemark in
    support of its request for costs and fees are of no precedential
    value. See 6th Cir. Rule 28(g); [Salamalekis v. Comm\'r of Soc.
    Sec.]{.underline}, 221 F.3d 828, 833 (6th Cir.2000) (unpublished
    decisions are not binding precedent). In any event, these
    unpublished opinions do not involve the award of costs and fees in
    an ADA suit. In [Jordan v. Vercoe]{.underline}, 1992 WL 96348 \*1
    (6^th^ Cir. May 7, 1992), the Sixth Circuit addressed the issue of
    whether the district court abused its discretion in awarding costs
    against an in forma pauperis plaintiff, a pro se prisoner, in a
    civil rights action. In [Farmer v. Ottawa County]{.underline}, 2000
    WL 420698 \* 7 (6^th^ Cir. April 13, 2000), costs were awarded to
    plaintiff under the Fair Labor Standards Act ("FLSA"). Under the
    FLSA, an award of attorney fees and costs is mandatory when the
    court enters a judgment for plaintiff. [Id]{.underline}. In
    accordance with 6th Cir. Rule 28(g), we have attached copies of the
    unpublished decisions to this motion. ([See]{.underline} Exhibits 1,
    2).

[^2]: "Cinemark Request" refers to "Defendant's Request for Costs and
    Supporting Memorandum," dated December 27, 2001.

[^3]: For the convenience of the court, attached is a copy of the order
    in [United States v. AMC Entertainment, Inc.]{.underline}, No.
    CV-99-01034 FMC(SHx)(C.D. Cal. filed January 9, 2002).
    ([See]{.underline} Exhibit 3).