RALPH F. BOYD, JR.

Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

GRETCHEN E. JACOBS

PHYLLIS M. COHEN

KATHLEEN S. DEVINE

DOV LUTZKER

KRISTAN S. MAYER

JOSEPH C. RUSSO

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

DEBRA W. YANG

United States Attorney

LEON M. WEIDMAN

First 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

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)

> )
>
> ) REPLY MEMORANDUM OF PLAINTIFF
>
> Plaintiff, ) UNITED STATES IN SUPPORT OF
>
> ) MOTION FOR PARTIAL SUMMARY
>
> v\. ) JUDGMENT ON DEFENDANTS'
>
> ) FAILURE TO COMPLY WITH THE
>
> ) STANDARDS FOR ACCESSIBLE

AMC ENTERTAINMENT, INC., ) ELEMENTS NOT RELATED TO LINE OF

[et]{.underline} [al]{.underline}., ) SIGHT

> )
>
> ) DATE: Jan. 21, 2003
>
> Defendants. ) TIME: 10:00 a.m.

) JUDGE: Judge Florence-Marie Cooper

[TABLE OF CONTENTS]{.underline}

**INTRODUCTION** 1

**ARGUMENT**

> A. The United States' Motion for Partial Summary Judgment on Non-Line
> of Sight Issues Is Ripe for Adjudication 2

B. AMC Does Not Dispute Material Facts Underlying the US Motion for
Partial Summary Judgment In Its Stadium-Style Movie Theaters 6

> 1\. *AMC Fails to Create Disputed Issues of Material Fact Concerning
> Mr. Hecker's Measurements* 6
>
> 2\. *AMC\'s Repeated Assertions That the United States Did Not Provide
> the Actual Measurements Taken as Its \"Evidence Showing Dispute\" Are
> Patently False.* 9
>
> 3\. *AMC Has Not Disputed the Facts That It Has Neither Provided One
> Fixed Companion Seat for Each Wheelchair Space Or That the Companion
> Seats are Next to Each Wheelchair Space* 9
>
> 4\. *AMC\'s Allegations That Certain Areas of Its Theaters Are Not
> Subject to the Requirements of the Standards Are Incorrect* 10
>
> 5\. *AMC\'s Allegations That It Is Not Required to Provide Raised
> Letter and Braille Room Identification Signs at Auditorium Entrance
> Doors Is Neither Supported By the Standards Nor By the Deposition
> Testimony of Its Declarant, Philip C. Pennington.* 12
>
> 6\. *AMC Has Not Produced Evidence to Dispute the Majority of the
> United States' Evidence Regarding Excessive Slopes and Cross Slopes at
> Ramps, Curb Ramps, Parking Spaces, or Access Aisles* 13
>
> 7\. *Defendants Do Not Provide Sufficient Evidence to Create Disputed
> Facts on other Accessibility Violations* 14
>
> 8\. *AMC's Reliance Upon the Gibbens Report Is Misplaced* 15

C. The Declarations of AMC Counsel Gregory F. Hurley and AMC
Vice-President Philip C. Pennington Are Deficient, Misleading, and Not
Credible 16

> 1\. *The Declaration of AMC Counsel Gregory F. Hurley* 16
>
> 2\. *The Declaration of AMC Vice-President Philip C. Pennington* 19
>
> D. AMC\'s Claims of State Code Compliance is Another Smoke Screen
> Designed to Cloud the Issue of Its Non-Compliance with the Standards
> 22
>
> E. AMC Has Not Met Its Burden to Demonstrate That Any of Its Hundreds
> of Noncompliant Elements Are Within Industry Standards for Dimensional
> Tolerances 23
>
> F. AMC Has Not Met Its Burden to Demonstrate That Any of Its Hundreds
> of Noncompliant Elements Provide Equivalent Facilitation 24
>
> G. Defendants' Continued Attacks on the Designs of United States'
> Expert Peter Frink Are Contrary to this Court's Order of Nov. 20, 2002
> 24
>
> H. The Standards for a Pattern or Practice Claim Have Been Ignored by
> Defendants 24

**CONCLUSION** 25

**INTRODUCTION**

Defendants\' reliance on conclusory statements unsupported by factual
evidence fails to refute the United States\' evidence in its pending
motion for partial summary judgment. Defendants\' attempts to further
delay a ruling by this Court on these issues should not be allowed. This
Court should thus proceed to adjudicate the legal issues set forth in
the United States' motion for partial summary judgment.

## ARGUMENT

A. The United States' Motion for Partial Summary Judgment on Non-Line of
Sight Issues Is Ripe for Adjudication

Defendants first attempt to forestall a ruling by this Court on the
United States' motion for partial summary judgment by suggesting that
this motion is not ripe for consideration because (i) they allegedly now
wish \-- at the eleventh-hour \-- to mediate the accessibility issues
presented in this motion, and (ii) they have not had sufficient time to
investigate the accessibility violations addressed in this motion.
[See]{.underline}, [e.g]{.underline}., AMC Opp. Mem. at 1, 3-4, 6-8.
Defendants\' arguments are meritless and should be summarily rejected by
this Court.

First, Defendants\' belated "request" to mediate the accessibility
violations at its stadium-style movie theaters represents nothing more
than a thinly-veiled attempt to further delay hearing on the United
States' motion. It was the United States that proposed mediation in 2000
and again in 2001, urging AMC to join in mediation to resolve the
outstanding disputes, even after the parties engaged in extensive
efforts to reach a negotiated agreement resolving both line-of-sight and
non-line of sight issues in this action and were very near a final
resolution. AMC withdrew from mediation on both occasions.[^1] The
parties\' lengthy past attempts at both private settlement and formal
mediation, along with the extensive history of discovery disputes in
this case, clearly demonstrates that any attempt to resolve
accessibility violations without a Court ruling concerning the
underlying liability issues would be ineffective and cause extensive
further delays. Moreover, while the United States ***did*** offer to
mediate regarding the remediation of accessibility violations at AMC's
stadium-style theaters after the issuance of the Court's summary
judgment ruling, [see]{.underline} Plaintiff United States' Request for
Status Conference (filed Dec. 18, 2002) (Docket \# 407), AMC did not
respond to this offer. [See]{.underline} US Reply App., Ex. 1, ¶ 9.
Indeed, Defendants did not even respond to the United States' earlier
invitation to meet-and-confer before the filing of the instant motion
for partial summary judgment. [See]{.underline} US Reply App., Ex. 2, ¶
3-4. Given this background, it is plain that AMC's mediation "request"
is little more than a delay tactic.[^2] This Court should thus proceed
to adjudicate the legal issues set forth in the United States' motion
for partial summary judgment.

Second, Defendants\' claim that it had insufficient time to investigate
and respond to the accessibility violations addressed in the United
States' motion for partial summary judgment also rings hollow.
Defendants have already sought and received two extensions of time which
collectively afforded them ***eight*** additional weeks to frame their
opposition to the United States' summary judgment motion.
[See]{.underline} Defendants\' Ex Parte Application to Continue Hearing
on Plaintiff\'s Motion for Partial Summary Judgment filed Nov. 5, 2002
(Docket #382); Defendants\' Ex Parte Application to Temporarily Stay the
Action or to Modify the Court\'s November 6, 2002 Order, filed November
22, 2002 (Docket #402). Moreover, Defendants\' continued protestations
that they were *never* provided information on these violations until
they received the Hecker report[^3] flies in the face of reality. As
discussed previously, [see]{.underline} [supra]{.underline} fn. 2, the
United States provided Defendants in August 1999 with a 60-page list of
accessibility violations at four of AMC's stadium-style theater
complexes. During later settlement negotiations, the United States also
subsequently provided AMC with extensive lists of accessibility
violations at approximately nine of the twelve theater complexes it had
surveyed by that time. US Reply App., Ex. 1, ¶ 4. Finally, it also bears
noting that Defendants had both theater-level and corporate-level
personnel on-site at each of the 12 theater surveys observing the survey
process. Its personnel had the opportunity to observe United States\'
accessibility expert Bill Hecker while he was making each and every
measurement, including where and how each measurement was made.[^4]
There was nothing to prevent Defendants from having its own architects,
staff members, or experts follow Mr. Hecker during his surveys and
duplicate his measurements on the spot. The fact that Defendants elected
not to undertake such measures does not now entitle them to delay the
proceedings on the United States' motion for partial summary judgment
for yet a third time.

B. [AMC Does Not Dispute Material Facts Underlying the US Motion for
Partial Summary Judgment In Its Stadium-Style Movie
Theaters]{.underline}

Defendants do not dispute, by declaration or other written evidence,
significant and material aspects of the United States' Motion.
[See]{.underline} Fed.R.Civ.Pro. 56(e) (motion for summary judgment must
be countered with properly-supported factual statements with "specific
*facts* showing that there \[are\] genuine issue\[s\] for
trial\")(emphasis added); C.D. Local Rule 56-3 (material facts
adequately supported by the moving party are admitted to exist unless
"controverted by declaration or other written evidence filed in
opposition to the motion"). This obligation is not met by the assertion
of conclusory allegations or denials. [See]{.underline},
[e.g]{.underline}., [Taylor v. List]{.underline}, 880 F.2d 1040, 1045-46
(9th Cir. 1989) ("A summary judgment motion cannot be defeated by
relying on conclusory allegations unsupported by factual data.");
[see]{.underline} [also]{.underline} [Arpin v. Santa Clara Valley
Transp. Agency]{.underline}, 261 F.3d 912, 919 (9th Cir. 2001) ("The
mere existence of a scintilla of evidence in support of the non-moving
party's position is not sufficient" to preclude summary judgment).

Defendants do not dispute the vast majority of the United States\' Facts
with declarations or other written evidence. Instead, Defendants use a
handful of boilerplate and conclusory allegations in an effort to
manufacture factual disputes. However, given that these conclusory
allegations do not satisfy the burden necessary to counter the United
States\' summary judgment evidence, the United States\' Motion for
Partial Summary Judgment should be granted in its entirety.

1\. *AMC Fails to Create Disputed Issues of Material Fact Concerning Mr.
Hecker's Measurements*

The vast majority of the paragraphs in AMC\'s Separate Statement of
Genuine Issues of Material Fact ("AMC's Disputed Facts")(filed Jan. 7,
2003)(Docket #423) are nothing more than an attempt to attack the way
the United States\' expert conducted his surveys of AMC\'s theaters. In
order to create a dispute over these facts, the majority of which
consist of detailed measurements and dimensions, Defendants must show an
actual dispute in the measurements or dimensions. However, other than
the thread-bare statements in the two declarations filed with AMC's
Opposition regarding a handful of measurements taken at five of
Defendants\' theaters allegedly showing different results than those
obtained by Mr. Hecker,[^5] no other contrary measurements have been
presented by Defendants, nor by Defendants\' own accessibility expert,
Mr. Michael P. Gibbens. [See]{.underline} Gibbens Report, Exhibit O to
Declaration of Gregory F. Hurley in Support of AMC\'s Opposition
(\"Hurley Decl.\")(filed Jan. 7, 2003)(Docket #422).[^6]

Defendants were served with Mr. Hecker\'s expert report on August 20,
2002. Defendants\' representatives were on-site at each survey and
observed Mr. Hecker conducting his surveys. Defendants have deposed Mr.
Hecker on, among other topics, his methodology for conducting these
surveys, the equipment he utilized, its known accuracy, and how often he
calibrated his equipment. Defendants have been provided with Mr.
Hecker\'s field notes from these surveys and the hundreds of photographs
he took during those surveys documenting the elements he surveyed and
conditions at the theaters. [See]{.underline} US Reply App., Ex. 5,
Response to Request for Production Nos. 1, 4-5, 10-11; US Reply App.,
Ex. 4, 20:21-12. Had Defendants requested the production of Mr.
Hecker\'s equipment at his deposition, Mr. Hecker would have complied.
However, no such request was ever made. [See]{.underline} AMC\'s
Disputed Facts at 5. While Defendants contend that the United States
\"must establish that the measurements that they took were accurate\",
[id.]{.underline}, an issue the United States does not concede,
nonetheless, the United States has in fact done so. [See]{.underline}
U.S. SJ App. Ex. 2, Hecker Decl. ¶ 5-6 (filed Nov. 4, 2002)(Docket \#
381). [See]{.underline} [also]{.underline} Response of Plaintiff United
States to AMC Defendants\' \"Objections\" to Declaration of William
Hecker in Support of Plaintiff\'s Motion for Summary Judgment (served
Jan. 14, 2003) ("Response to Hecker 'Objections'\")*.* The burden is now
on Defendants to come forward with contrary measurements for all twelve
theaters surveyed by the United States, attested to or otherwise
supported by written evidence. Conclusory statements simply do not meet
the evidentiary burden necessary to defeat a motion for summary
judgment. [Taylor]{.underline}, 880 F.2d at 1045-46. Without evidence of
contrary measurements, there can be no disputed facts. [See]{.underline}
[also]{.underline} [Arpin]{.underline}, 261 F.3d at 919 (mere scintilla
of evidence not sufficient to preclude summary judgment).

Additionally, Defendants challenge the fact that measurements were only
taken on one part of each of the many ramps surveyed, AMC\'s Disputed
Facts at 5, and that these measurements were taken with an electronic
level, [id.]{.underline} at 11. However, Defendants themselves have
admitted violations in their theaters where a *portion* of a ramp
exceeds 8.3 percent.[^7]

Therefore, those facts that Defendants have challenged on the basis that
the United States' accessibility expert Mr. Hecker failed to indicate
how or where each measurement was taken, that his measurements and
equipment are improper, and other attacks on the way the surveys were
conducted, without providing contrary measurements or dimensions, must
be deemed admitted.[^8]

> 2\. *AMC\'s Repeated Assertions That the United States Did Not Provide
> the Actual Measurements Taken as Its \"Evidence Showing Dispute\" Are
> Patently False.*

AMC states repeatedly that the United States has not provided the actual
measurements of the violations found at its theaters. This so-called
\"evidence showing dispute\" is plainly nonexistent. The United States\'
Facts specifies the exact measurements taken *and* specifies the
measurement required by the Standards for easy comparison. Therefore,
those paragraphs in AMC's Disputed Facts must be deemed admitted.[^9]

3\. *AMC Has Not Disputed the Facts That It Has Neither Provided One
Fixed Companion Seat for Each Wheelchair Space Or That the Companion
Seats are Next to Each Wheelchair Space*

The requirement to provide companion seating ***next to*** wheelchair
seats in assembly areas such as movie theaters, Standard 4.33.3, is
based on common sense - people with disabilities, including people who
use wheelchairs, frequently attend movies with non-disabled companions,
such as spouses, friends, attendants who perform various services for
the person with a disability. Thus, the physical relationship between a
companion seat and its adjacent wheelchair seat should provide the
person with a disability and his/her companion with the same experience
as any two people without disabilities who attend a movie and expect to
be able to sit ***next to*** *their* companion. AMC, however, has chosen
a different route; in many of its stadium-style auditoria a companion
attending a movie with a person who must use a wheelchair is either
forced to sit away from the person using the wheelchair (horizontally
separated by distance, rails, etc.), or the companion is forced to sit
in a seat that is elevated inches *above* or below the floor level of
the person using the wheelchair (vertically separated).
[See]{.underline} US Reply App., Ex. 6, ¶ 5 ("some companion seats are
located too far from the wheelchair space"); [see]{.underline}
[also]{.underline} United States\' Motion for Summary Judgment on Line
of Sight, Appendix, Vol. 2 (\"US SJ App.\"), filed October 28, 2002
(Docket #369), Ex. 40, Declaration of Herbert Kjos (dated Oct. 19, 2002)
¶ 5 and Ex. 49, Declaration of Mary O'Brien (dated Oct. 21, 2002) ¶¶
9-11; [see]{.underline} [also]{.underline} US Reply App., Ex. 8,
Declaration of Brian Koukol (dated Nov. 8, 2002) ¶ 4.[^10] No other
movie-going patrons are forced to deal with this situation, other than
people with disabilities and their companions.

AMC maintains that Standard 4.33.3 does not specify a \"location or
orientation\" for companion seats. AMC\'s Disputed Facts at 14-15. Of
course, this is simply not true. Standard 4.33.3 requires that \"\[a\]t
least one companion fixed seat shall be provided ***next to*** each
wheelchair seating area.\" 28 C.F.R. Pt. 36, App. A § 4.33.3 (emphasis
added). By AMC\'s definition, a companion seat could be located in a
completely different row or a different section of the auditorium from
its "companion" wheelchair space.

AMC also tries to convince this Court that the Standards allow AMC to
provide just one fixed companion seat where it places two wheelchair
seating spaces side-by-side. This argument again defies common sense and
the rationale for requiring the provision of companion seats.
[See]{.underline} *supra.*

4\. *AMC\'s Allegations That Certain Areas of Its Theaters Are Not
Subject to the Requirements of the Standards Are Incorrect*

AMC misconstrues those requirements of the Standards that apply to areas
for \"common use\" to limit its liability in the pending motion. AMC \'s
Disputed Facts at 17. Defendants attempt to narrow the term to exclude
areas it determines are for its employees only. However, the term
\"common use\" is defined in the Standards itself: \"those interior and
exterior rooms, spaces, or elements that are made available for the use
of a restricted group of people (for example, *occupants of a homeless
shelter*, the occupants of an office building, or the guests of such
occupants).\" Standards § 3.5 (emphasis in original). \"Common use\"
areas are different than the \"work areas\" covered by Standard ¶
4.1.1(3) and cited by Defendants. Defendants attempt to expand \"work
areas\" to such rooms or spaces as employee break rooms, employee locker
rooms, and employee restrooms. AMC's Disputed Facts at 17. Defendants\'
expansive view of \"work areas,\" however, conflicts with guidance
issued by the Department of Justice. \"Work areas\" are further defined
in the Department\'s 1993 Technical Assistance Manual III (\"TAM\") as
follows: \"What is included in the term \"work area\"? Does it include
employee lounges, restrooms, cafeterias, health units, and exercise
facilities? No. These common use areas are not considered work areas,
and they must be constructed or altered in full compliance with ADAAG.\"
US Reply App., Ex. 9, ¶ 7.3110. The Department\'s interpretation is
entitled to substantial deference. [See]{.underline},
[e.g]{.underline}., [Thomas Jefferson Univ. v. Shalala]{.underline}, 512
U.S. 504, 512, 114 S. Ct. 2381, 2386 (1994) (holding that courts "must
give substantial deference to an agency's interpretation of its own
regulations"; an agency's interpretation must be given "controlling
weight unless it is plainly erroneous or inconsistent with the
regulation")(quoting [Bowles v. Seminole Rock & Sand Co.]{.underline},
325 U.S. 410, 414 (1945)); [accord]{.underline} [Auer v.
Robbins]{.underline}, 519 U.S. 452, 461, 117 S. Ct. 905, 911 (1997);
[Barden v. City of Sacramento]{.underline}, 292 F.3d 1073, 1077 (9th
Cir. 2002); [Klem v. County of Santa Clara]{.underline}, 208 F.3d 1085,
1089 (9th Cir. 2000); [Dep't of Health & Human Services v.
Chater]{.underline}, 163 F.3d 1129, 1133-34 (9th Cir. 1998).

Based on this definition, published by the Department of Justice in
1993, all the areas listed as having noncompliant features in the United
States\' motion are required to comply with the Standards. Therefore,
Defendants\' attempts to create disputed material facts about these
"common use" areas should be rejected, and the following paragraphs in
the United States\' Facts must be deemed admitted: ¶¶ 54-63, 132-135,
167, 274, 346-347, 426, 513-517, 778-782, 787, 945-952, 987, 1239-1240.
Similarly, paragraph 18 of the Declaration of Philip C. Pennington in
Support of AMC's Opposition ("Pennington Decl.")(filed Jan. 7,
2003)(Docket #421) in which Mr. Pennington states that the \"only
\'common areas\' of these theaters are the lobbies, the public
restrooms, and the auditoriums\" is not true and contains a legal
conclusion by Mr. Pennington, and therefore does not create a dispute of
material facts. This portion of the Pennington Declaration should thus
be stricken. [See]{.underline} [also]{.underline} discussion at Section
C.2, pp. 21-22, *infra,.*

5\. *AMC\'s Allegations That It Is Not Required to Provide Raised Letter
and Braille Room Identification Signs at Auditorium Entrance Doors Is
Neither Supported By the Standards Nor By the Deposition Testimony of
Its Declarant, Philip C. Pennington.*

Standard 4.1.3(16)(a) requires signs which \"designate permanent rooms
and spaces\" to contain raised letters and brailled characters in
compliance with Standard 4.30.4. Defendants allege that their auditorium
signs are merely informational signs and thus not required to comply
with Standard 4.30.4. The signs at issue are outside each auditorium and
designate which numbered auditorium patrons are about to enter.
Additionally, Defendants claim these signs qualify for the stated
exception to Standard 4.1.3(16): \"Building directories, menus, and all
other signs which are ***temporary*** are not required to comply.\"
(Emphasis added.) The Department\'s 1993 Technical Assistance Manual,
however, makes clear that \"informational signs\" are signs such as
\"cafeteria this way\"; or \"copy room\". US Reply App., Ex. 10, ¶
7.5165. Similarly, examples of signs designating permanent rooms and
spaces in the 1993 TAM include signs such as ***men\'s and women\'s
rooms***, ***room numbers***, and exit signs. [Id.]{.underline}
(Emphasis added.) Clearly, signs identifying AMC\'s auditoria numbers
are room numbers in movie theaters. [See]{.underline} [also]{.underline}
US Reply App., Ex. 3, 164:15-165:13 (Pennington became aware of this
signage problem during the Department\'s surveys). Therefore, since
Defendants have not raised a *material* dispute on this issue, the
following paragraphs of the United States\' Facts must be deemed
admitted: ¶¶ 15, 20, 83-84, 136, 158, 299-300, 348, 374, 377, 421, 461,
518, 659, 762, 793, 836, 841, 844, 992-993, 999, 1029, 1055, 1061, 1087,
1098, 1103, 1122, 1132, 1138, 1200, 1202, 1229, 1233.

Defendants also allege that other signs in their theaters do not
designate permanent rooms or spaces and so do not have to meet the
requirements of Standard 4.1.3(16)(a). For instance, Defendants claim
that signs for the women's and men's restrooms in its theaters do not
designate permanent rooms and so are exempt from Standard 4.1.3(16)(a).
The Department\'s Technical Assistance Manual makes clear that restroom
signs are signs designating permanent rooms and spaces and, therefore,
must comply with Standard 4.1.3(16)(a). [See]{.underline} discussion
*supra*. Since Defendants have failed to raise a material dispute on
this issue, the following paragraphs of the United States\' Facts also
must be deemed admitted: ¶¶ 250, 255, 412, 416, 420, 575, 596-597, 970.

Defendants attempt to create disputed facts relating to other signs in
their theaters by claiming that Standard 4.1.3(16)(b) and its exception
are the only requirements with which these signs must comply. However,
these signs, which include restroom and telephone signs, are cited by
the United States not because of the information on the signs, but
because the signs themselves protrude too far into the \"walks, halls,
corridors, passageways, or aisles\" of AMC\'s theaters. Standard 4.4.1.
Standard 4.1.3(16)(b) does not address protruding objects, including
signs. Therefore, Defendants have failed to raise a material disputed
fact regarding these protruding signs and the following paragraphs of
the United States\' Facts must be deemed admitted: ¶¶ 670, 790, 796,
1000, 1002, 1030, 1056-1057, 1062-1063, 1099, 1104-1105, 1133, 1139,
1166, 1227-1228.

Finally, Defendants claim that Standard 4.1.3(16)(b) and its exception
specify the only requirements for signs at elevators. However, elevator
signs at hoistway entrances are specially required to have raised and
brailled letters by Standard 4.10.5 for which there is no exception.
Therefore, paragraph 301 of the United States\' Facts must also be
deemed admitted.

6\. *AMC Has Not Produced Evidence to Dispute the Majority of the United
States' Evidence Regarding Excessive Slopes and Cross Slopes at Ramps,
Curb Ramps, Parking Spaces, or Access Aisles*

With regard to slope measurements, Defendants allege that "\[m\]any of
Hecker's measurement's (sic) are within 0.1% of the standard. This is
equivalent to an imperceptible difference of .012 of an inch measured
over a foot."[^11] Defendants are once again incorrect and making
misleading statements. In fact, just five individual auditorium ramps
are listed in the United States\' Facts as being just 0.1% above the
specified standard. [See]{.underline} US Facts ¶¶ 387 (one of three
ramps in this paragraph), 474, 491, 493, 552, and 876. The United States
agrees with Defendants that these five ramps can be excluded from the
Court\'s consideration. **No other** ramps, curb ramps, parking spaces,
or access aisles, slopes or cross slopes, are within 0.1% of the
applicable standards. Defendants\' attempt to trivialize the United
States\' measurements does not cause these many other slope measurements
to become any less difficult or impossible for people who use
wheelchairs, walkers, crutches, or canes to navigate. With the exception
of a few ramps in three auditoriums, [see]{.underline} section C.2, pp.
20, *infra*, Defendants have not refuted the United States' Facts
evidencing excessive slopes.

7\. *Defendants Do Not Provide Sufficient Evidence to Create Disputed
Facts on other Accessibility Violations*

Defendants' Opposition asserts that their retractable tape barricades
used at their theaters to cordon off queuing areas in the lobby and in
the concessions areas, which are not detectable to cane users, are
furniture and not subject to the Standards. Defendants' Opposition at
17. However, the Department's 1994 Supplement to its Technical
Assistance Manual specifies that public accommodations may be obligated
to purchase accessible free-standing equipment in order to provide equal
opportunity to people with disabilities in its theaters, including
people with visual impairments. [See]{.underline} US Reply App., Exs.
10, ¶ II-5.3000, 11. Defendants allege that some of its restrooms do not
have the required ambulatory accessible toilet stalls (a 36 inch wide
stall with parallel grab bars designed to provide support for people who
use walkers, canes, etc., and required when there are six or more
stalls) because of "normal wear". [See]{.underline} AMC's Disputed Facts
¶¶ 256, 272, 1268. This statement is ridiculous; Defendants do not
allege that these theaters were *designed* with this required feature.
There is no reasonable explanation for these statements by AMC.
Similarly, Defendants argue that the fact that the stall door in a
designated wheelchair accessible stall is not positioned diagonally
opposite the toilet , as required, is also allegedly due to "normal
wear." Defendants' Disputed Facts ¶ 270. Defendants also claim "normal
wear" explains why a number of structures attached to its walls are
protruding objects, including signs, fire alarm boxes, wall mounted
lights, water fountains, rails, etc.[^12]

Defendants also seem to use a novel definition of a "circulation path"
to avoid liability for protruding objects. [See]{.underline} Defendants'
Disputed Facts ¶ 19 (protruding plumbing valve in hallway outside
auditorium entrance not in a circulation path). However, the term is
clearly defined in the Standards: "\[a\]n exterior or interior way of
passage from one place to another for pedestrians, including, but not
limited to, walks, hallways, courtyards, stairways, and stair landings."
Standard § 3.5.

8\. *AMC's Reliance Upon the Gibbens Report Is Misplaced*

Defendants purport to find support for its opposition to many of the
United States' Conclusions of Law in its expert report by Mr. Michael
Gibbens. [See]{.underline} AMC's Disputed Facts (Conclusions of Law) ¶¶
2-13. Aside from the fact that Defendants cite to no specific portion of
Mr. Gibbens' report, the report itself contains (1) no contrary
measurements, (2) no evidence to support AMC's contention that any
elements in AMC's theaters comply with any industry standards of
dimensional tolerances, (3) no evidence to support AMC's contention that
any elements in AMC's theaters provide equivalent facilitation, and (4)
no evidence that Mr. Gibbens has conducted any accessibility surveys of
any of Defendants' stadium-style theaters or reviewed any of the
architectural drawings.

The remaining portions of AMC's Disputed Facts also do not refute the
United States' Facts, but, rather, contain similar conclusory statements
which do not satisfy AMC's burden in order to oppose the United States'
Motion for Partial Summary Judgment. [See]{.underline} Rule 56(e);
[Morrison v. Walker]{.underline}, 404 F.2d 1046, 1048-49 (9th Cir. 1968)
(facts not contradicted by party opposing summary judgment are
admitted); 10B Charles A. Wright [et]{.underline} [al]{.underline}.,
[Federal Practice and Procedure]{.underline} § 2739 (1998).
[See]{.underline} [also]{.underline} C.D. Local Rule 56-3.

C. [The Declarations of AMC Counsel Gregory F. Hurley and AMC
Vice-President Philip C. Pennington Are Deficient, Misleading, and Not
Credible]{.underline}

AMC presents two declarations that are at the foundation of its
opposition "evidence." For the reasons specified below, neither
declaration is sufficient for refuting the United States' summary
judgment motion.

> 1\. *The Declaration of AMC Counsel Gregory F. Hurley*

Paragraph four of the Declaration of Gregory F. Hurley in Support of
AMC's Opposition ("Hurley Decl." or "Hurley Declaration") is a
conclusory statement by Attorney Hurley that the "majority of the
'variances'" in the United States' Facts are "less than 1 inch."
Attorney Hurley then lists measurements of some elements of AMC's
theaters that led him to that conclusion. Presumably these measurements
are from the United States' Facts, although which specific factual
statements by the United States are not specified by Mr. Hurley. The
implication from this paragraph of the declaration seems to be that
these differences in measurements from the Standards are too trivial to
rise to the level of violations. A review of the United States' Facts,
however, reveals approximately 37 paragraphs out of the total 1290 fact
paragraphs (three percent) listed by the United States that might meet
Mr. Hurley's statement in his declaration.[^13] However, a number of
these "variances" Mr. Hurley complains about are variances from
***minimum*** requirements. AMC could have designed and built these
features to meet the ADA Standards or provide greater access than these
bare minimums, but it chose not to. This Court should not reward AMC for
its failure to do so, and its further failure to meet the minimum
requirements. [See]{.underline} [Long v. Coast Resorts,
Inc.]{.underline}, 267 F.3d 918, 923 (9^th^ Cir. 2001) (no substantial
compliance or undue burden exception for new construction); [Independent
Living Resources v. Oregon Arena Corp.]{.underline}, 1 F. Supp. 2d 1124,
1135 (D. Ore. 1998) (court reluctant to accept dimensional tolerances
where regulation specifies a *minimum* clearance necessary for an
element to be usable by persons with disabilities). Of those elements
listed in paragraph 4 of the Hurley Declaration, the following are
"variances" from Standards which specify ***minimum*** requirements:
pull side/latch side maneuvering space at doors (Standard § 4.13.6);
width of wheelchair seating areas (Standard § 4.33.2); handrail
extensions reducing width of accessible route (Standard § 4.3.3); clear
width between handrails of ramps (§ 4.8.3); lavatory apron knee height
(Standard § 4.19.2, Fig. 31); and clear width between doors (Standard §
4.13.7). Of the remaining "variances" of one inch or less, since AMC has
utterly failed to counter the United States' evidence with measurements
of its own or evidence of accepted industry tolerances, this Court
should deem the remaining paragraphs admitted. [See]{.underline} fn. 13,
*supra.*

Other paragraphs in the Hurley Declaration are equally incorrect,
inaccurate, and misleading. In paragraphs 6, 9, and 15, Mr. Hurley
ignores the history of discovery in this case and claims that until the
filing of the pending summary judgment motion, the United States has not
been willing to specify which features at each theater were out of
compliance. This is simply untrue. [See]{.underline} Section A, pp. 4-5,
*supra*. Paragraph 8 also complains that neither the United States nor
its accessibilty expert Mr. Hecker produced the tools Mr. Hecker used
during his surveys of AMC's theaters, ignoring the fact that Defendants
never requested that those tools be produced. [See]{.underline} section
A.1 *supra*. It is noteworthy that Mr. Hurley's declaration does not
*claim* that these tools were, in fact, ever requested. Paragraphs 10
and 14 state that the United States has failed to produce videotapes and
photographs taken at AMC's theaters. Mr. Hurley's blatant disregard of
this Court's Minute Order of November 12, 2002, Denying Defendants\' Ex
Parte Application to Strike Videotapes Referenced in Deposition
Transcript of Edward Gipple (Docket #390), coupled with AMC's failure to
review and/or copy the 159 videotapes that *were* made available, along
with the Mr. Hurley's disregard of the thousands of photographs taken
during the surveys that he personally reviewed in October 2002 and again
at the deposition of Mr. Hecker ([see]{.underline} [e.g.]{.underline},
US Reply App., Ex. 4, 21:8-12, 22:13-16), is incredible and even borders
on sanctionable behavior.

In Paragraph 13 of his declaration, Mr. Hurley states that the
Department of Justice had an obligation to discuss these accessibility
issues and "engage in a dialogue with AMC regarding these features."
However, the Department did, indeed, engage in such a dialogue during
the failed settlement and mediation efforts for over one and one-half
years. [See]{.underline} discussion Section A, pp. 2-4, *supra*; US
Reply App., Ex. 1 ¶ 2. Paragraph 16, without any further explanation,
simply states that AMC has not "been afforded" the time needed to reply
to the allegations in the pending motion. AMC first told the Court, in
its Ex Parte Application to Continue Hearing on Plaintiff's Motion for
Partial Summary Judgment, filed Nov. 5, 2002 (Docket #382) that an
extension of time was needed to allow Defendants the opportunity to
depose the United States' expert, Mr. Hecker (Defendants had
unilaterally chosen to postpone Mr. Hecker's deposition from its
originally scheduled date in October 2002).[^14] Defendants' second *ex
parte* request to stay the action or to postpone the hearing on the
pending motion, filed November 22, 2002 (Docket #402), was allegedly to
allow Defendants time to prepare its Motion to Certify for Interlocutory
Appeal the Court's November 20, 2002 Order. However, given that
Defendants were provided with lists of many of these violations in
August 1999, given further lists during settlement negotiations, had
personnel observing Mr. Hecker during each of his surveys, and have had
Mr. Hecker's very detailed expert report since August 20, 2002, Mr.
Hurley's assertion that AMC needs *further* time to respond is specious.
[See]{.underline} [also]{.underline} Section A, pp. 4-5, *supra.*

Paragraph 22 of the Hurley Declaration states that one percent of the
fixed seats at AMC's Woodland Hills and Norwalk theaters are aisle side
seats with removable armrests. The United States does not claim in its
Statement of Undisputed Facts that those two theaters fail to meet that
particular requirement. Finally, and perhaps most troubling, are
paragraphs 20-24 of Mr. Hurley's Declaration. In these paragraphs, Mr.
Hurley describes surveys he made of AMC's Norwalk and Promenade
theaters. These paragraphs are devoid of specific measurements, and
largely state Mr. Hurley's legal conclusion that these two theaters
comply with the Standards. Aside from the lack of specificity in these
paragraphs sufficient to refute a motion for summary judgment,
[see]{.underline} [Taylor]{.underline}, 880 F. 2d at 1045-46, copies of
Mr. Hurley's surveys have never been provided to the United States in
response to the numerous discovery requests. [See]{.underline}
[e.g.]{.underline}, Plaintiff United States' First Set of
Interrogatories and First Set of Requests for Production of Documents
and Things to AMC Entertainment, Inc., Interrogatory Nos. 1-3, 9,
Document Request Nos. 1-5 (served Oct. 13, 1999). Therefore, these
paragraphs of the Hurley Declaration should be stricken.

> 2\. *The Declaration of AMC Vice-President Philip C. Pennington*

Paragraphs 4 and 5 of Mr. Pennington's declaration simply state that
each of the twelve theaters fully surveyed by the United States was
checked and approved by local officials at the plan check stage and
again during and after construction. However, state or local building
officials do not enforce the ADA. [See]{.underline} US Reply App., Ex.
10, III- 7.1000, or
[[http://www.usdoj.gov/crt/ada/taman3up.html.]{.underline}](http://www.usdoj.gov/crt/ada/taman3up.html.)
Paragraph 6 of the Pennington Declaration similarly states that AMC's
theaters in the states of Texas and Florida were approved by local
officials in those states as being in compliance with those state codes
that have been certified by the Department of Justice as being
substantially equivalent to the ADA. However, such approval is only
rebuttable evidence of compliance with the ADA, and as discussed in
Section D, pp. 22-23, *infra*, the United States has produced more than
sufficient evidence to rebut any such presumption.

Paragraph 7 of Mr. Pennington's declaration states that the plans for
the twelve theaters show that "all ramps were designed to have a slope
of 1:12 or less." Nowhere does Mr. Pennington attest that *all* ramps in
the twelve theaters were, in fact, built with slopes of 1:12 or less.
Other parts of Mr. Pennington's declaration (¶¶ 8-10) confirm, in fact,
that ramps were *built* that do not comply with the Standards.
Therefore, this statement in paragraph 7 does not fully refute the
United States' evidence of noncompliant ramp slopes and should be
stricken.

Paragraphs 8-10 of the Pennington Declaration provide Mr. Pennington's
measurements of the slopes of some auditoria ramps at three of AMC's
stadium-style theaters in the Kansas City area. Paragraph 8, ramps at
the Barry Woods theater, confirms Mr. Hecker's slope measurement for
Auditorium #8 (8.6 percent). Consequently, paragraph 98 and of the
United States' Facts must be deemed admitted. Mr. Pennington's
measurements of ramps in Auditoriums #1, 9, 13, 16, and 20 have no
bearing on the United States' Motion since the ramps in these auditoria
are not included in the United States' Facts. Mr. Pennington's
measurement of one ramp within Auditorium 10 is of a different ramp than
that included in the United States' Facts. These measurements by Mr.
Pennington do not controvert statements by the United States and thus
should be stricken. Conversely, Mr. Pennington has *not* provided ramp
slope measurements for Auditoriums #12, 14, 15, 17, 22, and 24; thus,
paragraphs 103-104, 107, 111-112 of the United States' Facts must been
deemed admitted. Similarly for the Olathe Station theater (paragraph 9),
Mr. Pennington confirms Mr. Hecker's measurements of one ramp in
Auditorium #29, and provides measurements for other ramps that confirm
violations of the maximum allowable slope: Auditoriums #19 and #29 (8.7
percent). Paragraphs 485 and 494 of the United States' Facts are thus
admitted. Mr. Pennington has not provided measurements for one of the
ramps in Auditorium #17, so the portion of paragraph 483 dealing with
the front ramp at screen left also is admitted. For the AMC theater in
Leawood (paragraph 10), Mr. Pennington also (1) provides measurements
for ramps that confirm violations of the maximum allowable slope in
Auditoriums #3 and #8 (8.6 percent); (2) does not provide measurements
for Auditorium #12 (US Facts ¶ 478 is thus admitted); and (3) does
provide measurements for ramps in Auditoria #4 and #9 that are not
included in the United States' Facts and should be stricken.

Elsewhere in his declaration, Mr. Pennington states that he took
measurements of the toilet center lines at Barry Woods and obtained
"measurement\[s\] less than shown in Mr. Hecker's report." Pennington
Decl. ¶ 12. However, conspicuously absent from this paragraph are both
the actual measurements Mr. Pennington obtained and/or any declaration
that the measurements he obtained showed compliance with the applicable
Standards. Paragraphs 117, 121, 130 of the United States' Facts should
therefore be deemed admitted. Paragraph 11 of his declaration admits
that the wheelchair spaces at Barry Woods are not the minimum 66 inches
wide required for two wheelchairs (although the actual measurements Mr.
Pennington obtained are not provided), and that the wheelchair spaces
are encroached upon by an adjacent companion seat.[^15]

Mr. Pennington claims that Defendants do not own the pay phones it has
in its theaters, does not have the right to alter them, and further, the
phones are accessible. Pennington Decl. ¶¶ 14-16. Aside from the issue
of what, if any, responsibility Defendants have (1) by allowing pay
phones to be placed in its property; and (2) to provide accessible pay
phones when it provides pay phones to its non-disabled customers,
Defendants have previously assumed the responsibility for obtaining
compliant pay phones. [See]{.underline} US Reply App., Ex. 14;
[see]{.underline} [also]{.underline} US Reply App., Ex. 7, Response to
Request for Admission No. 1143. Mr. Pennington does not provide any of
his measurements of the telephones at Barry Woods that would confirm his
statement that they are accessible and comply with the Standards; these
statements should therefore be stricken. As with the pay phones, Mr.
Pennington claims, without evidence, in paragraph 17 of his declaration
that AMC does not own, operate, lease, or control the parking and
exterior walkways of its Barrett Commons, Barry Woods, Celebration,
Norwalk, Olathe, Pleasure Island, and Woodland Hills theaters. Mr.
Pennington does not make the same claim for the parking and exterior
walkways of the Grand, Leawood, Palm Promenade, and Sterling Heights
theaters, and presumably, therefore, AMC accepts responsibility for the
exterior violations at these theaters. [See]{.underline} US Facts ¶¶
186-188, 289-292, 532-537, 816-832.

Paragraph 18 of the Pennington Declaration asserts AMC's unsupportable
definition of "common areas". [See]{.underline} discussion at Section
B.4*.,* pp. 10-12, *supra*. Paragraph 19 merely states AMC's policy to
repair its facilities, but Mr. Pennington makes no assertion that
repairs to any specific features identified in the United States' Facts
have been made. [See]{.underline} [e.g.]{.underline}, Defendants'
Disputed Facts ¶¶ 538 (broken infrared transmitter for assistive
listening devices at Palm Promenade); 661 (same at Pleasure Island, plus
broken receivers for assistive listening devices). Lastly, paragraph 20
of Mr. Pennington's declaration concerns the insufficient numbers of
assistive listening devices ("ALDs") and the lack of compliant signage
indicating their availability. Mr. Pennington states that additional
ALDs are maintained in other parts of AMC's theaters other than the
guest service counters. However, Mr. Pennington does ***not*** assert
that these theaters do in fact have the correct number of ALDs.[^16]
Neither does he assert that AMC's signs indicating the availability of
ALDs are compliant with the Standards (i.e., contain the international
symbol of access for hearing loss).[^17]

Except for the contradictory measurements regarding a few auditoria
ramps at three theaters, the Pennington Declaration does not provide the
necessary proof to refute the United States' Facts and defeat the United
States' Motion for Partial Summary Judgment.

D. [AMC\'s Claims of State Code Compliance is Another Smoke Screen
Designed to Cloud the Issue of Its Non-Compliance with the
Standards]{.underline}

AMC claims that its stadium-style movie theaters in the states of
Washington (1 theater), Texas (13 theaters), and Florida (15 theaters)
must be presumed to comply with the ADA because they were designed and
constructed in compliance with those states\' building codes. AMC's
Disputed Facts at 8-10. AMC correctly states that certification by the
United States of these states\' building codes is *rebuttable* evidence
that these State codes meet or exceed the ADA's minimum requirements for
accessibility. 42 U.S.C. § 12188(b)(1)(A)(ii). However, the preamble to
the Department of Justice\'s regulation describes the effect of code
certification as follows:

> Certification will *not* be effective in those situations where a
> State or local building code official *allows a facility to be
> constructed or altered in a manner that does not follow the technical
> or scoping provisions of the certified code.* Thus, if an official
> either waives an accessible element or feature or allows a change that
> does not provide equivalent facilitation, *the fact that the
> Department has certified the code itself will not stand as evidence
> that the facility has been constructed or altered in accordance with
> the minimum accessibility requirements of the ADA.* The Department's
> certification of a code is effective only with respect to the
> standards in the code; *it is not to be interpreted to apply to a
> State or local government's application of the code.*

28 C.F.R. pt. 36, App. B at 668 (1997) (emphasis added). AMC fails to
acknowledge the overwhelming evidence in the United States\' Motion
that, in fact, AMC\'s stadium-style theaters in Dallas, Texas (\"The
Grand\") and in Florida (\"Pleasure Island\") contain several hundred
violations of the Standards for Accessible Design. [See]{.underline} US
Facts ¶¶ 186-277, 609-805. There is thus abundant evidence of
violations, allegedly all approved by any state or local inspectors,
sufficient to rebut the presumption of compliance. Further, AMC has
failed to refute the United States\' evidence with proper declarations
or other written evidence. [See]{.underline} discussion at Section B, p.
6, *supra.*

E. [AMC Has Not Met Its Burden to Demonstrate That Any of Its Hundreds
of Noncompliant Elements Are Within Industry Standards for Dimensional
Tolerances]{.underline}

As discussed in its Memorandum in Support of United States' Motion for
Partial Summary Judgment (Docket #380), the burden is on Defendants to
provide specific evidence of accepted dimensional tolerances for any
instances of construction it alleges are \"close enough\".
[Long]{.underline}, 267 F.3d at 923 (no substantial compliance exception
for new construction); [Independent Living Resources]{.underline}, 1 F.
Supp. 2d at 1135 (D. Ore. 1998); U.S. Memo at 19. Defendants have failed
to meet, or even address, this burden. Further, many of the Standards
set *minimum* specifications that Defendants failed to meet.
[Independent Living Resources]{.underline}, 1 F. Supp. 2d at 1135 (court
reluctant to accept dimensional tolerances where regulation specifies a
*minimum* clearance necessary for an element to be usable by persons
with disabilities). Defendants could have designed and constructed these
features to exceed these minimum requirements. Nowhere in Defendants\'
Opposition papers do Defendants allege that a single specific feature is
within a specific industry standard for tolerances. Nowhere in
Defendants\' expert Mr. Gibbens\' report does *he* allege that any
specific feature or element within *any* of Defendants\' stadium-style
movie theaters is within any industry standard. Mere conclusory
statements such as those in Defendants\' Opposition not sufficient to
create a genuine dispute. [Taylor]{.underline}, 880 F.2d at 1045-46.

F. [AMC Has Not Met Its Burden to Demonstrate That Any of Its Hundreds
of Noncompliant Elements Provide Equivalent Facilitation]{.underline}

As with the issue of dimensional tolerances, the burden is on Defendants
to demonstrate that any "variance" of any particular feature or element
of its stadium-style movie theaters nonetheless provides equal or
greater access to persons with disabilities. US Reply App., Ex. 10, ¶
III-7.2100 (\"Proposed alternative designs, when supported by available
data, are not prohibited; but in any title III investigation or lawsuit,
the covered entity would bear the burden of proving that any alternative
design provides equal or greater access.\"). Once again, Defendants'
Opposition is devoid of facts and full of conclusory statements.
[See]{.underline} Defendants\' Disputed Facts at 7-8.
[Taylor]{.underline}, 880 F.2d at 1045-46. Nothing alleged in AMC's
opposition to summary judgment demonstrates that any of the elements
built by AMC provide equivalent facilitation, and such claims must
therefore fail.

G. [Defendants' Continued Attacks on the Designs of United States'
Expert Peter Frink Are Contrary to this Court's Order of Nov. 20,
2002]{.underline}

Defendants try to turn a decision on the pending motion into a
referendum once again on the designs of another United States expert,
Mr. Peter Frink. [See]{.underline} Defendants\' Disputed Facts at 13-14.
This Court has already discounted AMC\'s previous attempts,
[see]{.underline} Court\'s November 20, 2002 Order on Parties' Motions
for Summary Judgment at 8-9, fn. 6 (Docket #397), and AMC has once again
not produced any evidence that it relied on, or was even aware of, the
designs of Mr. Frink when AMC designed its own theaters. Thus, the
designs and opinions of Mr. Frink relating to companion seating have no
bearing on the pending motion and cannot be used as evidence to create
disputed facts.

H. [The Standards for a Pattern or Practice Claim Have Been Ignored by
Defendants]{.underline}

Defendants have not addressed the United States' discussion of the
standards for determining a pattern or practice of discrimination.
Therefore, if the Court finds all or most of the United States' Facts
unrefuted by Defendants, there is sufficient evidence for this Court to
find that AMC has engaged in a pattern or practice of failing to design
and construct its stadium-style movie theaters in compliance with the
Standards for Accessible Design.

**CONCLUSION**

Except for a few paragraphs of the United States' Statement of
Undisputed Material Facts put into dispute by the Pennington Declaration
with specific, contrary measurements (US Facts ¶¶ 95, 98, 102, 312,
314-316, 318-319, 321-323, 473-482, 483 (one ramp only), 484, 487-491,
493, 495), the few additional paragraphs that the United States agrees
should be excluded from the Court's consideration (US Facts ¶¶ 387 (one
ramp only), 552, and 874), and perhaps the paragraphs relating to the
exterior parking and walkways of seven theaters (US Facts ¶¶ 13-14,
74-79, 149-154, 362-373, 437-455, 609-621, 1184-1193), the vast majority
of the United States' facts remain uncontradicted by evidence sufficient
to refute a motion for summary judgment. [Arpin]{.underline}, 261 F.3d
at 919 (9th Cir. 2001) (mere scintilla of evidence in support of
non-moving party insufficient to preclude summary judgment). Similarly,
Defendants have provided no factual or legal arguments for why, if the
majority of the United States' facts are deemed admitted, this Court
should not find that Defendants AMC have engaged in a pattern or
practice of failing to comply with the Standards for Accessible Design
in its stadium-style theaters.

For the foregoing reasons, this Court should grant the United States'
Motion for Partial Summary Judgment and enter its proposed Order (Docket
#379).

DATED: January 14, 2003

Respectfully submitted,

> RALPH F. BOYD, JR.
>
> Assistant Attorney General
>
> Civil Rights Division
>
> JOHN L. WODATCH, Chief
>
> PHILIP L. BREEN, Special Legal Counsel
>
> RENEE M. WOHLENHAUS, Deputy Chief
>
> Disability Rights Section
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> 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 January, 2003, true and
correct copies of **Reply Memorandum of Plaintiff United States In
Support of Motion for Partial Summary Judgment on Defendants' Failure to
Comply with the Standards for Accessible Design of Elements Not Related
to Line of Sight Issues** were served by Federal Express, postage
pre-paid, on the following parties:

Gregory F. Hurley

Kutak Rock LLP

18201 Von Karman

Suite 1100

Irvine, CA 92612-1077

Robert J. Harrop

Lathrop & Gage L.C.

Suite 2500

2345 Grand Boulevard

Kansas City, MO 64108-2684

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Phyllis M. Cohen

[^1]: ^?^ Indeed, in 2000 and 2001, the parties spent over eighteen
    months attempting to amicably resolve both line-of-sight and
    non-line of sight issues through settlement and mediation.
    [See,]{.underline} [e.g]{.underline}., Joint Stipulation By
    Plaintiff United States to Motion to Compel Documents and
    Supplementary Reports Concerning AMC\'s Trial Experts (filed Dec.
    30, 2002)(Docket #412); Second Joint Stipulation Regarding
    Plaintiff\'s Motion to Compel Testimony from Defendants (filed Aug.
    8, 2002)(Docket #327); Joint Stipulation Regarding Plaintiff\'s
    Motion to Compel Testimony from Defendants (filed July 12,
    2002)(Docket #314); Joint Stipulation By Plaintiff to Motion for
    Protective Order (filed Feb. 28, 2002)(Docket #232); United States'
    Third Status Report Regarding Court-Ordered Mediation (filed Dec.
    28, 2001) (Docket \# 225); Plaintiff's Request for Status
    Conference, Re: Mediation and Scheduling (filed Aug. 3, 2001)
    (Docket \# 182).

[^2]: ^?^ Defendants\' rationale for mediating these accessibility
    issues ***prior*** to a ruling on the pending motion is also
    seriously flawed. First, Defendants allege that the Department
    \"only recently\" disclosed these violations. This is patently
    false. In response to interrogatories served on the United States in
    1999, the United States provided Defendants with a 60-page list of
    preliminary violations at the AMC Promenade 16, Norwalk 20, Olathe
    Station 30, and Barry Woods 24 theater complexes. [See]{.underline}
    Joint Stipulation Re: Plaintiff United States' Motion for Protective
    Order From AMC Entertainment, Inc's Notices of Deposition to Five
    Department of Justice Employees 28 (filed Mar. 22, 2002) (Docket \#
    254) ([citing]{.underline} Appendix (Volume One) to Plaintiff United
    States' Motion for Protective Order From AMC Entertainment Inc.'s
    Five Deposition Notices to Five Department of Justice Employees, Ex.
    7, pp. 8-67 (filed Mar. 22, 2002) (Docket \# 251)). Further, during
    the parties\' failed settlement discussions in 2001, the United
    States provided AMC with details on many of the same violations
    listed in the United States\' Statement of Undisputed Facts for nine
    of the 12 surveyed theater complexes. [See]{.underline} US Reply
    App., Ex. 1, ¶ 4. AMC also improperly alleges that the United States
    sought, and was granted, an order *preventing* AMC from \"improving
    its facilities.\" [See]{.underline} Order Granting United States\'
    Ex Parte Motion for Temporary Restraining Order to Prevent Further
    Spoliation of the Evidence by Defendants (filed Oct.10, 2000)
    (Docket #172). However, the Court\'s Order only prohibited
    Defendants from making accessibility changes to the 12 theater
    complexes covered by the Order *until* the United States had
    completed its surveys of those theaters. Prior to that time,
    Defendants could seek Court approval for any changes it sought to
    make. [See]{.underline} [id.]{.underline}, ¶¶ 3, 10. Yet Defendants
    have taken no action to correct any of these violations at these
    theaters. [See]{.underline} US Reply App., Ex. 3, 392:9-397:11.

[^3]: ^?^ Defendants state that they did not receive the United States\'
    expert reports until September 26, 2002, and thus had less than
    three months to review them prior to filing its opposition
    memorandum. As with many of Defendants\' factual statements, this is
    not correct. The United States served its expert disclosures on AMC
    on August 20, 2002, and the hundreds of photographs, field notes,
    and other materials accompanying Mr. Hecker\'s report were also made
    available for inspection at that time. Defendants\' claim that the
    United States refused to provide them with the videotapes made
    during the theater inspections is also inaccurate. This Court has
    stated that AMC is *only* entitled to the approximately 159
    videotapes utilized by its experts. [See]{.underline} Minute Order
    of November 12, 2002, Denying Defendants\' Ex Parte Application to
    Strike Videotapes Referenced in Deposition Transcript of Edward
    Gipple (Docket #390). Yet despite its repeated protestations that it
    needs these videotapes, Defendants have yet to make arrangements to
    view and/or copy those tapes it *is* entitled to. \"*The lady doth
    protest too much, methinks.\"* (William Shakespeare,
    [Hamlet]{.underline}, Act III, Scene II). Further, these videotapes,
    which only show audience seating preferences, have ***no*** bearing
    on the instant motion.

[^4]: ^?^ Indeed, AMC\'s claim that it had no knowledge of these
    violations prior to receiving Mr. Hecker\'s expert report is further
    contradicted by the deposition testimony of its Vice-President for
    Special Projects, Mr. Philip Pennington. Mr. Pennington was at each
    of the twelve Departmental surveys and became aware of some of the
    violations, including the lack of raised letter and braille room
    identification signs, at the time of the surveys. [See]{.underline}
    US Reply App., Ex. 3, 164:15-165:13.

[^5]: ^?^ As discussed later in this memorandum, [see]{.underline}
    Section C, pp. 16-22, *infra,* the declarations of AMC Counsel
    Gregory F. Hurley and AMC Vice-President Philip C. Pennington are
    legally deficient and fail to create disputed issues of material
    fact.

[^6]: ^?^ Indeed, the Gibbens report is devoid of ***any*** facts, only
    a few general conclusory statements not connected in any fashion to
    the actual conditions found at Defendants\' stadium-style movie
    theaters at issue in this litigation. There is no indication that
    Mr. Gibbens has ever surveyed *any* AMC stadium-style theater or
    reviewed any plans for any of its theaters. In fact, the Gibbens
    Report makes clear that even Defendants\' expert has *no* idea
    whether any of the measured violations of the Standards in the
    Hecker Report are accurate or not. [See]{.underline} Gibbens Report
    at 1, Exhibit O to Hurley Decl. (\"While the aforementioned
    facilities/features ***may or may not in fact ultimately be shown to
    depart*** from one or more of the requirements of the ADA \...\")
    (emphasis added).

[^7]: ^?^ [See]{.underline} US Reply App., Ex. 6 at ¶ 22 ("Certain
    ***parts*** of vomitory ramps and auditorium cross slopes do not
    meet the ADA requirement of 1 in 12.")(emphasis added);
    [see]{.underline} [also]{.underline} US Reply App., Ex.7, ¶ 1164.

[^8]: ^?^ [See]{.underline} AMC's Disputed Facts ¶¶ 13-14, 17-19, 21-42,
    49-54, 56, 58-63, 75-78, 85-88, 90-93, 95-131, 133, 137-138,
    152-155, 160-166, 168-172, 174-175, 186-189, 195-224, 233-247, 249,
    252-253, 258-261, 263-264, 267, 269, 271, 275, 277, 289-290, 292,
    302-310, 313, 317, 320, 324, 331-332, 334-336, 338-340, 342-343,
    345, 350-351, 362, 364-369, 371, 373, 379-380, 382-390, 398-406,
    408-410, 413-415, 417-419, 423, 437-455, 458-460, 462-471, 473, 483,
    485-486, 492, 494, 496, 498-512, 519-521, 532-537, 542-543, 547-572,
    578, 582, 590-594, 609-622, 624, 626-627, 629-631, 633, 637-657,
    668-669, 671-680, 692-698, 713-758, 764-765, 767, 770-772, 774-777,
    786, 788-789, 791-792, 795, 797, 799-805, 818-833, 838--840, 843,
    845-899, 953-954, 956-958, 960-969, 986-987, 990, 994, 996-997,
    1001, 1003-1007, 1009-1012, 1019-1028, 1031-1033, 1035-1038,
    1047-1050, 1052, 1054, 1058-1060, 1064-1073, 1078-1086, 1088-1092,
    1096-1097, 1100-1102, 1106-1112, 1114-1120, 1123-1127, 1131,
    1134-1137, 1140-1141, 1143-1149, 1154-1163, 1171, 1173, 1184,
    1080-1086, 1088-1092, 1096-1097, 1100-1102, 1106-1112, 1114-1120,
    1123-1127, 1131, 1134-1137, 1140-1141, 1143-1149, 1155-1163, 1171,
    1173, 1184, 1199, 1201, 1203-1209, 1216, 1222-1226, 1230, 1234-1235,
    1241-1250, 1261-1272.

[^9]: ^?^ [See]{.underline} AMC's Disputed Facts ¶¶ 13-14, 21-50, 52,
    75-78, 81, 90-93, 95, 98, 100, 102-105, 107, 111-112, 114, 152,
    155-156, 164, 166, 168-170, 173, 175, 186, 197-198, 200-209,
    215-224, 225-232, 248-249, 251, 253-254, 256-258, 261-262, 265-266,
    268, 270, 272, 278, 289-292, 294-296, 302-323, 325-331, 337,
    341-342, 344-345, 350-351, 362-369, 371-373, 376, 379-406, 408, 410,
    414-415, 417-419, 422, 424-425, 437-455, 458-459, 463-485, 487-498,
    502, 505, 509-512, 519-521, 532-537, 540, 545, 547-574, 576-592,
    609-624, 626-627, 629-630, 633, 658, 668-669, 671-743, 745-756, 762,
    764-765, 767, 769, 771-772, 774-776, 783-786, 791-792, 795, 797-798,
    800-804, 817-833, 840, 843, 847-943, 954, 956, 958-962, 964-966,
    968-969, 971-974, 986, 990, 994, 996-998, 1001, 1003-1004,
    1006-1019, 1021, 1023-1028, 1031-1054, 1058-1060, 1064-1065,
    1067-1077, 1080-1081, 1083-1086, 1088-1091, 1093-1097, 1100-1101,
    1106-1107, 1109-1115, 1117-1121, 1123-1131, 1134-1137, 1141-1155,
    1157, 1159-1163, 1170-1173, 1184, 1199, 1201, 1204-1223, 1225-1126,
    1230-1232, 1234-1238, 1241-1271, 1273-1282.

[^10]: ^?^The problems created by these separations are perhaps most
    clearly laid out in the declaration of Mr. Koukol. US Reply App.,
    Ex. 8, ¶ 4. Because of his disability, Mr. Koukol cannot maintain
    his seated upright position in his wheelchair by himself. His
    girlfriend/attendant, or other companion, must constantly reposition
    Mr. Koukol. When attending those AMC's theaters where the companion
    seats are horizontally and/or vertically separated from the
    wheelchair spaces, Mr. Koukol's attendant must get out of his or her
    seat in order to reposition Mr. Koukol in his wheelchair. In
    theaters where there is no horizontal or vertical separation between
    companion and wheelchair seats, this is not necessary.

[^11]: ^?^[See]{.underline} AMC\'s Disputed Facts ¶¶ 23-42, 95, 98, 100,
    102-105, 107, 111-112, 152, 164, 186, 215-216, 219-224, 289,
    312-323, 366-367, 382-390, 448-450, 473-485, 487-491, 493-495, 534,
    536, 548-570, 609, 616-617, 619, 630, 714-716, 718-722, 819, 821,
    823, 870-886, 888, 891-898, 1009-1012, 1035-1038, 1060, 1069-1070,
    1072-1073, 1109-1112, 1124, 1143-1145, 1147-1149, 1184, 1216,
    1261-1264; [see]{.underline} [also]{.underline} [id.]{.underline} at
    4-5.

[^12]: ^?^ Defendants Disputed Facts ¶¶ 590-592, 611, 629, 633, 668-669,
    724, 764-765, 791-792, 797, 840, 899, 990, 1058, 1064-1065, 1089,
    1100-1101, 1106-1107, 1123, 1134-1135, 1165, 1235.

[^13]: ^?^ By category as described in Mr. Hurley's declaration, they
    are: ramp handrails one-eighth of an inch too large (¶¶ 22, 471,
    547); auditorium ramps with running slopes barely exceeding 8.3%
    (slopes of 8.4% - ¶¶ 387, 474, 491, 493, 552, 876); restroom soap
    dispensers one inch too high (¶ 53); pull side/latch side
    maneuvering space at doors ¾" less than the minimum (¶¶ 54, 86, 88,
    839, 1005); slopes of access aisles "barely" exceeding two percent
    maximum (slopes of 2.1 percent - none); wheelchair seating areas one
    inch less than the minimum width (¶ 92); parallel grab bars mounted
    one inch too low (¶¶ 748, 753); walkways with running slopes
    "barely" greater than 5 percent (5.1 percent - none); spout height
    of accessible drinking fountain one inch higher than maximum 36
    inches (¶ 161); mirror mounted one inch too high (¶¶ 170, 1096);
    ambulatory accessible stall one inch too narrow (¶ 171); handrail
    extensions reducing width of accessible route by one inch (¶ 211);
    wheelchair accessible toilets off-center by one inch (¶¶ 263, 502,
    510, 743); clear width between handrails of ramps ¾" too narrow (¶
    399); lavatory apron knee height ¾" less than the minimum 29\" (¶
    418); wall-mounted posters projecting ¼" into circulation route (¶
    463); operating hardware of automatic ticket vending machine one
    inch too high (¶¶ 189, 632, 833, 986); clear width between doors one
    inch less than minimum 48 inches (¶¶ 652, 657); and urinal lips one
    inch too high (¶ 966).

[^14]: ^?^ Mr. Hecker was deposed by Mr. Hurley on December 4, 2002. US
    Reply App., Ex. 1 ¶ 6.

[^15]: ^?^[See]{.underline} [also]{.underline} US Reply App., Ex. 6 at ¶
    5 ("handrail infringes on the 66\" required width").

[^16]: ^?^ The Court Order governing the inspections of AMC's theaters
    put restrictions on communications between the Department's survey
    team and AMC personnel and patrons. At each survey, AMC had a
    theater representative and a corporate representative.
    [See]{.underline} Declaration of Gretchen E. Jacobs in Support of
    United States' Motion for Protective Order Regarding AMC's Notice of
    Deposition Pursuant to Fed.R.Civ.P. 30(b)(6) Re: Inspection of AMC
    Theaters ¶ 8, filed Feb. 28, 2002 (Docket #233). It was the theater
    representative who was typically responsible for providing the ALDs
    that were on-site to Mr. Hecker for counting and testing. US Reply
    App., Ex. 1, ¶ 8.

[^17]: ^?^ Indeed, AMC asserts that these signs are lacking the required
    accessibility symbol due to "normal wear." [See]{.underline} AMC's
    Disputed Facts ¶¶ 156, 190, 296, 540.