Number range CHAPTER

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. )

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

**[MEMORANDUM IN SUPPORT OF]{.underline}**

**[UNITED STATES' MOTION TO INTERVENE]{.underline}**

[TABLE OF CONTENTS]{.underline}

**INTRODUCTION** 1

**STATUTORY AND REGULATORY BACKGROUND** 1

**FACTUAL AND PROCEDURAL HISTORY** 3

**ARGUMENT** 8

> I. [The United States Should Be Permitted To Intervene As of
> Right]{.underline}

[Because of the Nature of the Second Circuit's Remand Order
in]{.underline}

[Meineker II and the Department of Justice's Unique
Regulatory]{.underline}

[and Enforcement Responsibilities Under Title III of the
ADA]{.underline} 8

**A.** ***The United States' Motion for Intervention Is Timely*** 9

**B. *The United States' Significant Interests In this Litigation
Cannot***

***Be Adequately Protected by the Existing Private Parties*** 12

II\. [This Court Should Alternatively Grant the United States
Request]{.underline}

[for Permissive Intervention Pursuant to Rule 24(b)(2)]{.underline} 15

**CONCLUSION** 17

**TABLE OF AUTHORITIES**

**FEDERAL CASES**

*Abondolo v. GGR Holbrook Medford, Inc.*,

285 B.R. 101 (E.D.N.Y. 2002) 12

*Brennan v. New York City Board of Education*,

260 F.3d 123 (2d Cir. 2001) 8, 12

*Butler, Fitzgerald & Potter v. Sequa Corp.*,

250 F.3d 171 (2nd Cir. 2001) 9

*Catanzano by Catanzano v. Wing*,

103 F.3d 223 (2nd Cir. 1996) 8

*Ceres Gulf v. Cooper*,

957 F.2d 1199 (5th Cir. 1992) 14, 15

*Coalition of Arizona/New Mexico Counties for Stable Economic Growth*

*v. Department of Interior*, 100 F.3d 837 (10th Cir. 1996) 13, 14

*Commack Self-Service Kosher Meats, Inc. v. Rubin*,

170 F.R.D. 93 (E.D.N.Y. 1996) 9, 16

*Donaldson v. United States*,

400 U.S. 517, 91 S. Ct. 534 (1971) 13

*Fields v. State Office of Mental Retardation and Development
Disabilities*,

164 F.R.D. 313 (N.D.N.Y. 1995) 9

*German v. Federal Home Loan Mortgage Corp.*,

899 F. Supp. 1155 (S.D.N.Y. 1995) 8

*Heaton v. Monogram Bank of Georgia*,

297 F.3d 416 (5th Cir. 2002) *passim*

*Meineker v. Hoyts Cinemas Corp.*,

216 F. Supp. 2d 14 (N.D.N.Y. 2002) *passim*

*Metropolitan Transport Co. v. Balboa Insurance Co.*,

118 F.R.D. 423 (E.D. Pa. 1987) 17

*Meyer v. Macmillan Public Co, Inc.*,

85 F.R.D. 149 (S.D.N.Y. 1980) 17

*National Association for Adv. of Colored People v. New York*,

413 U.S. 367, 93 S. Ct. 2591 (1973) 9

*Neusse v. Camp*,

385 F.2d 694 (D.C. Cir. 1967) 13

*PGA Tour, Inc. v. Martin*,

532 U.S. 661, 121 S. Ct. 1879 (2001) 1

*Restor-A-Dent Dental Laboratories, Inc. v. Certified Alloy Products,
Inc.*,

725 F.2d 871 (2nd Cir. 1984) 13

*Roeder v. Islamic Republic of Iran*, 195 F. Supp. 2d 140 (D.D.C. 2002),
[aff\'d]{.underline},

333 F.3d 228 (D.C. Cir. 2003) 10, 15

*Sobel v. Yeshiva University*,

438 F. Supp. 625 (S.D.N.Y. 1977) 17

*Tachiona ex rel. Tachiona v. Mugabe*,

186 F. Supp. 2d 383 (S.D.N.Y. 2002) 8

*Trbovich v. United Mine Workers*,

404 U.S. 528, 92 S. Ct. 630 (1972) 14

*Turn Key Gaming, Inc. v. Oglala Sioux Tribe*,

164 F.3d 1080 (8th Cir. 1999) 8

*United States v. Cinemark USA, Inc.*,

No. 02-3100, \-- F.3d \-- (6th Cir. Nov. 6, 2003) 2

*United States ex rel. McGough v. Covington Technologies, Inc.*,

967 F.2d 1391 (9th Cir. 1992) 15

*United States v. Hoyts Cinemas Corp.*,

256 F. Supp. 2d 73 (D. Mass.) 14

*United States v. Pitney Bowes, Inc.*,

25 F.3d 66 (2nd Cir. 1994) 9

*Washington Electrical Co-op., Inc. v. Massachusetts Municipal
Wholesale*

*Electrical Co.*, 922 F.2d 92 (2nd Cir. 1990) 13

**FEDERAL STATUTES AND REGULATIONS**

28 U.S.C. §§ 516-18 11

42 U.S.C. § 12101(a)-(b) 1

42 U.S.C. § 12101(b)(1) 1

42 U.S.C. §§ 12181-12189 2

42 U.S.C. § 12183(a)(1) 2

42 U.S.C. §§ 12186(b), 12206, 12188(b) 2

42 U.S.C. § 12188(a) 14

42 U.S.C. § 12188(b) 11, 14

28 C.F.R. § 0.50 1

28 C.F.R. pt. 36, App. § 4.33.3 *passim*

28 C.F.R. §§ 36.101 - 36.608 2

56 Fed. Reg. 35,546 (July 26, 1991) 2

Fed. R. Civ. P. 24(a)(2) 17

Fed. R. Civ. P. 24(b) 17

Fed. R. Civ. P. 24(b)(2) 15, 16

Fed. R. Civ. P. 25(c) 5

**[INTRODUCTION]{.underline}**

In July 2003, the Second Circuit issued a summary order remanding this
action back to this Court for additional proceedings on two primary
issues: (i) whether the Department of Justice's interpretation of its
regulation governing the placement of wheelchair seating locations at
public accommodations such as movie theaters is entitled to deference,
and (ii) if so, whether defendant Hoyts had sufficient notice of this
interpretation such that it may be applied to the Crossgates Mall
stadium-style theater complex at issue in this litigation. [See Meineker
v. Hoyts Cinemas Corp.]{.underline}, \-- Fed.Appx. --, 2003 WL 21510423
(2nd Cir. July 1, 2003). Because the nature of the Second Circuit's
order necessarily implicates the Department of Justice's substantial
interests in the proper interpretation and application of its
regulations implementing the Americans With Disabilities Act (42 U.S.C.
§ 12101 [et]{.underline}. [seq]{.underline}.) ("ADA"), as well as its
interest in assuring consistency between this action and other pending
stadium-style theater litigation, the United States moves herein to
intervene in these remand proceedings as of right or, in the
alternative, permissively pursuant to Rule 24 of the Federal Rules of
Civil Procedure.

**[STATUTORY AND REGULATORY BACKGROUND]{.underline}**

Congress enacted the Americans With Disabilities Act ("ADA") in 1990 to
remedy pervasive and continuous discrimination against persons with
disabilities. [See]{.underline} 42 U.S.C. § 12101(a)-(b);
[see]{.underline} [generally]{.underline} [PGA Tour, Inc. v.
Martin]{.underline}, 532 U.S. 661, 674-77, 121 S. Ct. 1879, 1889-90
(2001). One of the ADA's primary purposes is, therefore, "to provide a
clear and comprehensive mandate for the elimination of discrimination
against individuals with disabilities\[.\]" 42 U.S.C. § 12101(b)(1).

To address these problems, Title III of the ADA expressly prohibits
disability-based discrimination by public accommodations and commercial
facilities. [See]{.underline} 42 U.S.C.\
§§ 12181-12189. Of particular relevance here, Title III mandates that
so-called \"newly constructed\" public accommodations
([i.e]{.underline}. - covered facilities designed or constructed for
first occupancy after January 26, 1993) be \"readily accessible to and
usable by\" persons with disabilities. [See]{.underline} 42 U.S.C. §
12183(a)(1)("Section 303\"); [see]{.underline} [also]{.underline}
[id]{.underline}. at § 12182(a) ("Section 302\") (forbidding
disability-based discrimination \"in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations
of any place of public accommodation\"). Movie theaters \-- such as the
stadium-style theaters at the Crossgates Mall theater complex \-- are
expressly encompassed within Title III\'s non-discrimination mandate.
[Id]{.underline}. at § 12181(7)(C) (defining the term \"public
accommodation\" to include \"a motion picture house, theater, concert
hall, stadium, or other place of exhibition or entertainment\");
[see]{.underline} [also United States v. Cinemark USA,
Inc.]{.underline}, No. 02-3100, \-- F.3d \--, slip op. at 10 (6th Cir.
Nov. 6, 2003) (holding that "to require that wheelchair users be
provided with comparable viewing angles, not just an unobstructed view
of the movie screen, furthers the central goals of Title III of the
ADA").

Congress granted primary enforcement authority for Title III of the ADA
to the United States Department of Justice \[hereinafter \"Department\"
or \"DOJ\"\], 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. 42 U.S.C. §§ 12186(b), 12206, 12188(b). In 1991, pursuant
to Congress' delegated regulatory authority, the Department issued final
regulations - after notice-and-comment rulemaking - to regulate new
construction of, and alterations to, Title III-covered facilities.
[See]{.underline} 28 C.F.R. §§ 36.101 - 36.608 & App. A;
[see]{.underline} [also]{.underline} 56 Fed. Reg. 35,546 (July 26,
1991). These regulations include architectural standards known as the
ADA Standards for Accessible Design, 28 C.F.R. pt. 36, Appendix A
("Standards").

Section 4.33.3 of these Standards, in turn, establishes certain
requirements governing the placement and location of wheelchair and
companion seating in assembly areas such as movie theaters. Standard
4.33.3 provides, in pertinent part, that

> \[w\]heelchair areas shall be an integral part of any fixed seating
> plan and shall be provided so as to provide people with physical
> disabilities a choice of admission prices and lines of sight
> comparable to those for members of the general public. They shall
> adjoin an accessible route that also serves as a means of egress in
> case of emergency. At least one companion fixed seat shall be provided
> next to each wheelchair seating area. When the seating capacity
> exceeds 300, wheelchair spaces shall be provided in more than one
> location.

28 C.F.R. Pt. 36, App. A § 4.33.3 (1994) \[hereinafter \"Standard
4.33.3\"\]. It is the interpretation of Standard 4.33.3\'s comparability
and integration requirements, as well as their application to the
stadium-style theaters at the Crossgates Mall theater complex, that
forms one of the central issues in this action.

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

Hoyts\'s Crossgates Mall theater complex in Guilderland, New York opened
for business in 1997. [See]{.underline} Affidavit of Gretchen E. Jacobs
in Support of United States' Motion to Intervene (served Nov. 10, 2003)
("Jacobs Aff."), Ex. 1, United States' \[Proposed\] Complaint In
Intervention ¶¶ 4, 11 \[hereinafter "U.S. Intervention Complaint"\];
[see]{.underline} [also]{.underline} [Meineker v. Hoyts Cinemas
Corp.]{.underline}, 216 F. Supp. 2d 14, 15 (N.D.N.Y. 2002) ("[Meineker
I]{.underline}") (summarizing seating layouts of stadium-style theaters
at Crossgates Mall), [vacated and remanded]{.underline}, \-- Fed.Appx.
--, 2003 WL 21510423 (2nd Cir. July 1, 2003). This complex consists of
eighteen stadium-style movie theaters on two levels. U.S. Intervention
Complaint ¶ 11. In each of these theaters there are two seating sections
-- one section containing several rows ([i.e]{.underline}., 4-6 rows) of
seating in the \"traditional\" section on a flat floor closest to the
screen, and a \"stadium\" section located farther from the screen and
elevated on a succession of tiers or risers (generally 12-18\" in
height). [Id]{.underline}. The \"traditional\" and \"stadium\" sections
of these theaters are separated by one or more sets of stairs and a wall
and railings at least six-feet in height. [Id]{.underline}. As both
originally constructed and as currently operated, fourteen of the
eighteen theaters have wheelchair seating areas exclusively located in
the \"traditional\" section.[^1] [Id]{.underline}. at ¶¶ 12, 14. In the
four largest theaters seating over 300 patrons, the wheelchair seating
areas are located in both the traditional section and in the rear of the
stadium section on a platform surrounded by railings. [Id]{.underline}.
at ¶ 13.

In September 1998, plaintiffs Susan Meineker and Sybil McPherson filed
this action alleging that Hoyts\'s Crossgates Mall theater complex
violated Title III of the ADA. [See]{.underline} Complaint (filed Sept.
24, 1988) (Docket #1); [see]{.underline} [also]{.underline} First
Amended Complaint (filed Feb. 4, 1999) (Docket \# 8).[^2] Both women,
who use wheelchairs for mobility, had attended one or more movies at
these theaters and sat in the wheelchair seating areas in the
\"traditional\" section. First Amended Complaint at ¶¶ 12-45. They each
had difficulty viewing the screen, complained of discomfort from craning
their necks, and experienced distorted and blurry images from sitting so
close to the screen. [Id]{.underline}. Plaintiffs also complained about
feeling isolated and alleged that the theaters lacked sufficient
companion seating. [Id]{.underline}. Plaintiffs seek injunctive relief
and an order compelling Hoyts to make its Crossgates Mall theaters
accessible as required by Standard 4.33.3 and the ADA. [Id]{.underline}.
at 9.

In late 2001, the parties filed cross-motions for summary judgment.
Thereafter, in August 2002, this Court issued a memorandum opinion
granting defendant Hoyt\'s motion for summary judgment. [Meineker v.
Hoyts Cinemas Corp.]{.underline}, 216 F. Supp. 2d 14, 15 (N.D.N.Y. 2002)
("[Meineker I]{.underline}"), [vacated and remanded]{.underline}, \--
Fed.Appx. \--, 2003 WL 21510423 (2nd Cir. July 1, 2003). This Court,
while recognizing the importance of viewing angles and comparability
when interpreting Standard 4.33.3\'s lines-of-sight requirement,
nonetheless concluded that all of the wheelchair seating areas at the
Crossgates Mall theater complex complied with the ADA \"because \[they
are\] located amongst seating for the general public and afford\[\]
viewing angles comparable to those afforded to a significant portion of
the general public.\" [Meineker I]{.underline}, 216 F. Supp. 2d at
18-19. For similar reasons, this Court also concluded that the
wheelchair seating areas at this complex represented an integral part of
the fixed seating plan. [Id]{.underline}.

Plaintiffs timely appealed this Court's summary judgment ruling. The
United States was subsequently granted permission by the Second Circuit
to participate as *amicus curiae*. In April 2003, the Second Circuit
heard oral argument on the [Meineker]{.underline} appeal.[^3] A few
months later, on July 1, 2003, the Second Circuit issued a summary order
vacating [Meineker I]{.underline} and remanding for further proceedings.
[See]{.underline} Jacobs Aff., Ex. 6, [Meineker v. Hoyts Cinemas
Corp.]{.underline}, \-- Fed.Appx. \--, 2003 WL 21510423 (2nd Cir. July
1, 2003) ("[Meineker II]{.underline}"). This summary order contained
little substantive discussion. Instead, the Second Circuit noted that
the United States\' appearance in this action for the first time on
appeal raised two issues:

> \(1\) whether the DOJ\'s interpretation of § 4.33.3 - requiring lines
> of sight comparable to those afforded most of the general public and
> seating integral to the area where most of the general public chooses
> to sit - is entitled to deference, and (2) if its interpretation is
> entitled to deference, whether defendant received reasonable notice of
> that interpretation at the time of construction or renovation such
> that the DOJ\'s interpretation may be applied to the Crossgates
> theaters.

[Meineker II]{.underline}, 2003 WL at \*2. (footnotes omitted). The
Circuit concluded that remand back to this Court was necessary to
address the foregoing issues. [Id]{.underline}. at \*3. The Circuit also
noted that \"\[r\]emand is particularly appropriate . . . . \[because\]
the parties\' post-argument submissions raise complex factual issues
that illustrate the need for further proceedings in the District
Court.\" [Id]{.underline}.

After receipt of the Second Circuit's [Meineker II]{.underline} summary
order and mandate, the Disability Rights Section \-- the section within
the Department's Civil Rights Division with authority to enforce and
administer the ADA \-- began assessing whether or not the United States
should move to intervene in these [Meineker]{.underline} remand
proceedings in light of [Meineker II]{.underline}. Jacobs Aff. ¶ 2.

At a September 25th scheduling conference, this Court set forth various
deadlines for the [Meineker]{.underline} remand proceedings, including a
discovery cut-off of May 1, 2004 and a dispositive motion cut-off of
July 1, 2004. [See]{.underline} Order (filed Sept. 26, 2003) (Docket \#
87). The Court also denied Hoyts's motion to stay this action pending
resolution of cross-appeals pending before United States Court of
Appeals for the First Circuit in a related stadium-style theater case
[(United States v. Hoyts Cinemas Corp., et al.]{.underline}).
[Id]{.underline}. at 2. Finally, the Court set a deadline of October 27,
2003 for Hoyts to either move to join the United States as a party
and/or serve a subpoena pursuant to Rule 45 on the Department of
Justice. [Id]{.underline}.

Thereafter, on October 27, 2003, Hoyts served the Department of Justice
with a motion for involuntary joinder as a party-plaintiff
([see]{.underline} Docket \## 88 - 90), as well as an unexecuted copy of
a subpoena *duces tecum* pursuant to Rule 45 of the Federal Rules of
Civil Procedure issued to the United Sates Attorney for the Northern
District of New York which seeks production of privileged documents
listed on a privilege log complied by the United States in the
[Hoyts]{.underline} litigation. Jacobs Aff. ¶ 14 & Ex. 7.[^4]

On November 4, 2003, the Disability Rights Section received
authorization from the Assistant Attorney General for the Civil Rights
Division, Mr. R. Alexander Acosta, to move on behalf of the United
States to intervene in this action as a party-plaintiff.
[See]{.underline} Jacobs Aff. ¶ 6. Counsel for the United States
immediately informed the parties' respective counsel that the United
States would be moving imminently to intervene as a party-plaintiff in
these remand proceedings. [See]{.underline} Jacobs Aff. ¶¶ 7, 10 & Ex.
2. Counsel for plaintiffs stated that he did not oppose the United
States' intervention in this action. Jacobs Aff. ¶ 10. Counsel for
defendant Hoyts, however, informed the Department that Hoyts would be
opposing the United States' motion since Hoyts had already filed its
motion for involuntary joinder. [See]{.underline} Jacobs Aff. ¶ 8 & Ex.
3.

ARGUMENT

**I. The United States Should Be Permitted To Intervene As of Right
Because of the Nature of the Second Circuit's Remand Order in [Meineker
II]{.underline} and the Department of Justice's Unique Regulatory and
Enforcement Responsibilities Under Title III of the ADA**

Rule 24(a)(2) of the Federal Rules of Civil Procedure sets forth the
requirements for intervention as of right. As construed by the Second
Circuit, a party moving for intervention as of right must:

> \(1\) timely file an application, (2) show an interest in the action,
> (3) demonstrate that the interest may be impaired by the disposition
> of the action, and (4) show that the interest is not protected
> adequately by the parties to the action.

[See]{.underline}, [e.g]{.underline}., [Brennan v. New York City Bd. of
Educ.]{.underline}, 260 F.3d 123, 128-29 (2d Cir. 2001); [Catanzano by
Catanzano v. Wing]{.underline}, 103 F.3d 223, 232 (2nd Cir. 1996);
[Tachiona ex rel. Tachiona v. Mugabe]{.underline}, 186 F. Supp. 2d 383,
394 (S.D.N.Y. 2002). Federal courts, including those in the Second
Circuit, have emphasized that Rule 24\'s intervention requirements
should be construed flexibly and liberally in favor of intervention.
[See]{.underline}, [e.g]{.underline}., [Turn Key Gaming, Inc. v. Oglala
Sioux Tribe]{.underline}, 164 F.3d 1080, 1081 (8th Cir. 1999) ("Rule 24
should be construed liberally, and doubts resolved in favor if the
proposed intervenor."); [Tachiona]{.underline}, 186 F. Supp. 2d at 394
(describing Rule 24 intervention standard as "a flexible and
discretionary one"); [German v. Federal Home Loan Mortgage
Corp.]{.underline}, 899 F. Supp. 1155, 1166 (S.D.N.Y. 1995) (noting
"liberal construction" of intervention requirements).

Here, the United States' intervention request comfortably satisfies Rule
24(a)(2)'s requirements for intervention as of right. The United States
is timely seeking to intervene in this shortly after the issuance of the
Second Circuit's [Meineker II]{.underline} mandate and before any
substantive proceedings on remand have been conducted by this Court.
Moreover, the United States Department of Justice \-- as the agency with
primary regulatory and enforcement responsibilities under Title III of
the ADA \-- has direct and significant interests in this action that
cannot be adequately protected by private parties. Lastly, the Second
Circuit's [Meineker II]{.underline} order plainly contemplates the
United States' participation in the remand proceedings. Taken together,
these considerations strongly counsel in favor of granting the United
States' motion to intervene as of right.

**A. [The United States' Motion for Intervention Is
Timely]{.underline}**

As an initial matter, the United States' intervention motion \-- filed
just over three months after the issuance of the Second Circuit's
mandate \-- can hardly be considered untimely. As with Rule 24(a)(2)'s
other requirements, timeliness defies precise definition (or
chronological parameters) and is, instead, committed to the sound
discretion of the district court based on the circumstances of each
case. [See]{.underline}, [e.g]{.underline}., [National Ass'n for Adv. of
Colored People v. New York]{.underline}, 413 U.S. 367, 366-67, 93 S. Ct.
2591, 2603 (1973); [Butler, Fitzgerald & Potter v. Sequa
Corp.]{.underline}, 250 F.3d 171, 182 (2nd Cir. 2001); [Fields v. State
Office of Mental Retardation and Dev. Disabilities]{.underline}, 164
F.R.D. 313, 317 (N.D.N.Y. 1995). Factors considered by courts in the
Second Circuit when assessing the timeliness of a motion to intervene
include:

> \(1\) how long the applicant had notice of the interest before it made
> the motion to intervene; (2) prejudice to existing parties resulting
> from any delay; (3) prejudice to the applicant if the motion is
> denied; and (4) any unusual circumstances militating for or against a
> finding of timeliness.

[United States v. Pitney Bowes, Inc.]{.underline}, 25 F.3d 66, 70 (2nd
Cir. 1994); [Commack Self-Service Kosher Meats, Inc. v.
Rubin]{.underline}, 170 F.R.D. 93, 100 (E.D.N.Y. 1996).

The United States' intervention motion plainly satisfies this timeliness
standard. First, the United States is moving to intervene only three
months after the issuance of the Second Circuit's [Meineker
II]{.underline} mandate in late July 2003.[^5] Second, no substantive
briefs have yet been filed in these remand proceedings, thus
neutralizing any argument that the United States' entry as a
party-plaintiff will unduly delay the litigation. Third, for the reasons
discussed below, the United States' interests would be severely impaired
were intervention denied. [See]{.underline} discussion
[infra]{.underline} pp. 12-15. Fourth, the Second Circuit's summary
order plainly appears to contemplate participation by the United States
on remand.

Hoyts, however, apparently still believes that the United States'
intervention motion is nonetheless untimely. In his November 6th letter
conveying Hoyts's opposition to the United States' intervention motion,
defense counsel points to two events as "evidence" of the United States'
tardiness. First, Hoyts alleges that the Department of Justice ignored
this Court's January 2001 "invitation" to intervene in the first round
of [Meineker]{.underline} proceedings. [See]{.underline} Jacobs Aff.,
Ex. 3 at 1. Second, Hoyts claims that the United States -- if it were
inclined to intervene in these remand proceedings -- should have done so
before Hoyts filed its joinder motion in late October 2002.
[Id]{.underline}.

Neither of Hoyts's arguments undermine the propriety or timeliness of
the United States' intervention motion. Hoyts's assertion that the Court
"invited" the Department's intervention in

January 2001 is, simply put, false. At no time -- either in January 2001
or subsequently - has the Department received - nor did it expect to
receive \-- any "invitation" or other notification from this Court
seeking to have the United States intervene in any
[Meineker]{.underline} proceedings. Jacobs Aff. ¶ 9. Indeed, the January
2001 Order to which Hoyts makes apparent reference contains no reference
whatsoever to intervention by any outside party, let alone discussion of
a purported "invitation" to the United States to intervene.
[See]{.underline} Order (entered Jan. 22, 2001) (Docket \# 21);
[see]{.underline} [also]{.underline} Jacobs Aff., Ex. 5, Reply Brief for
Plaintiffs-Appellants Susan Meineker and Sybil McPherson 4-5 (2nd Cir.
Jan. 7, 2003) (discussing Hoyts's misrepresentations regarding
telephonic hearing conducted by Judge Hurd in January 2001).

The Department, moreover, moved as expeditiously as possible to
intervene on behalf of the United States in this action after review of
the [Meineker II]{.underline} summary order and mandate. The Disability
Rights Section (as with other DOJ components) is only authorized to
initiate enforcement actions such as the filing of a
complaint-in-intervention \-- or even make appearances on behalf of the
United States or the Department -- with the express approval of the
appropriate Department official who, in this case, is the Assistant
Attorney General for the Civil Rights Division ("AAG").
[See]{.underline}, [e.g]{.underline}., 28 U.S.C. §§ 516-18 (2003); 28
C.F.R. § 0.50; [see]{.underline} [also]{.underline} 42 U.S.C. § 12188(b)
(authorizing Attorney General to investigate complaints and file Title
III-based enforcement actions); Jacobs Aff. ¶ 4. Due to turnover in the
AAG's office, there was no Senate-confirmed AAG available to approve
this request until at least late August 2003. [Id]{.underline}. at ¶¶
3-6. After a reasonable time required to get things in order in his new
assignment, the new AAG \-- Mr. R. Alexander Acosta \-- approved the
Disability Rights Section's intervention in this action on behalf of the
United States in early November 2003. [Id]{.underline}. at ¶¶ 5-6. While
thus unfortunate that Hoyts's motion for joinder (filed in late October
2003) and the United States' intervention motion (filed in early
November 2003) have now "crossed paths" on the docket sheet, the mere
fact that Hoyts's joinder motion was filed earlier provides no basis for
holding the United States' intervention motion untimely particularly
where, as here, the Department moved to intervene as quickly as possible
within the legal constraints of the requisite approval process.

Therefore, because the United States timely moved for intervention as
required by Rule 24(a)(2) shortly after the issuance of the Second
Circuit's mandate and within days of receiving the requisite
authorization from the Assistant Attorney General for the Civil Rights
Division, the motion for intervention should be deemed timely.
[See]{.underline}, [e.g]{.underline}., [Heaton v. Monogram Bank of
Georgia]{.underline}, 297 F.3d 416, 422-24 (5th Cir. 2002) (finding FDIC
motion to intervene in remand proceedings timely since motion was filed
shortly after issuance of appellate mandate and agency's participation
as a party was necessary to protect both its regulatory program and the
public interest); [see]{.underline} [also]{.underline} [Abondolo v. GGR
Holbrook Medford, Inc.]{.underline}, 285 B.R. 101, 109-10 (E.D.N.Y.
2002) (holding United States' intervention motion in third-party action
timely, despite pendency of litigation for several years, since United
States acted quickly to intervene after learning of alleged fraudulent
conveyance and its participation was necessary to protect tax lien
against property at issue in litigation).

**B. The United States' Significant Interests In this Litigation Cannot
Be [Adequately Protected by the Existing Private Parties ]{.underline}**

Turning to Rule 24(a)(2)'s latter three requirements for intervention as
of right, there can be no serious question that the United States has
significant and legally cognizable interests in these remand proceedings
that \-- in light of the United States' unique role in the
administration and enforcement of Title III of the ADA \-- cannot be
adequately protected by the private parties.

For an "interest" to be cognizable under Rule 24(a)(2), the Second
Circuit has noted that such an interest must be "'direct, substantial,
and legally protectable.'" [Brennan]{.underline}, 260 F.2d at 130
(quoting [Washington Elec. Co-op., Inc. v. Massachusetts Municipal
Wholesale Elec. Co.]{.underline}, 922 F.2d 92, 97 (2nd Cir. 1990));
[see]{.underline} [also]{.underline} [Donaldson v. United
States]{.underline}, 400 U.S. 517, 531, 91 S.Ct. 534, 535 (1971)
(finding that interest, for purposes of intervention as of right, must
be "significantly protectable"). Beyond these broad parameters, however,
the interest requirement defies more specific definition and depends on
the facts and practicalities of each case. [See]{.underline}
[Restor-A-Dent Dental Laboratories, Inc. v. Certified Alloy Products,
Inc.]{.underline}, 725 F.2d 871, 874 (2nd Cir. 1984); [see]{.underline}
[also]{.underline} [Coalition of Arizona/New Mexico Counties for Stable
Economic Growth v. Dept. of Interior]{.underline}, 100 F.3d 837, 841
(10th Cir. 1996) (characterizing interest test as "'a practical guide to
disposing of lawsuits by involving as many apparently concerned persons
as is compatible with efficiency and due process'")
([quoting]{.underline} [Neusse v. Camp]{.underline}, 385 F.2d 694, 700
(D.C. Cir. 1967)); Fed. R. Civ. P. 24 advisory committee note (1966
Amendments) ("If an absentee would be substantially affected in a
practical sense by the determination made in an action, he should, as a
general rule, be entitled to intervene\[.\]").

That the United States has substantial interests at issue in the
[Meineker]{.underline} remand proceedings is beyond peradventure. First,
as the agency with primary regulatory and enforcement authority under
Title III of the ADA, the Department of Justice plainly has not only an
interest in the outcome of this particular litigation, but also a
broader interest as well in ensuring the proper and consistent
application of its own ADA regulations. The United States' direct
interests in this litigation thus include: asserting its own claims
against Hoyts under Title III of the ADA for violating Standard 4.33.3
with respect to the wheelchair seating locations at the Crossgates Mall
theater complex; ensuring that this Court affords appropriate deference
to its interpretation of Standard 4.33.3; and, protecting the United
States' broader interests in maintaining consistency in the
interpretation and application of Standard 4.33.3 among various federal
circuits. This latter consideration is particularly important where, as
here, the Crossgates Mall theater complex is currently the subject of
litigation both here and in the United States Court of Appeals for the
First Circuit. [See]{.underline} [United States v. Hoyts Cinemas
Corp.]{.underline}, 256 F. Supp. 2d 73 (D. Mass.)
(\"[Hoyts]{.underline}\") (granting summary judgment in favor of United
States and holding that theater defendant violated Standard 4.33.3 by
placing wheelchair locations outside the stadium sections of its
stadium-style theaters, but limiting application of holding to theaters
constructed or "refurbished" after initiation of [Hoyts]{.underline}
enforcement action), [appeals docketed]{.underline}, Nos. 03-1646,
03-1787 (1st Cir. June 5, 2003).

The United States' significant interests, moreover, cannot be adequately
represented by the private plaintiffs in this action. Not only are
private plaintiffs precluded from seeking the same range of remedies as
the United States under Title III of the ADA, [compare]{.underline} 42
U.S.C. § 12188(a) (remedies available to private litigants)
[with]{.underline} 42 U.S.C. § 12188(b) (enforcement authority of
Attorney General), but also such private litigants are necessarily
presumed to act on behalf of their clients' interests \-- rather than
the public interest \-- as does the United States. [See]{.underline},
[e.g]{.underline}., [Heaton]{.underline}, 297 F.3d at 424 (reversing
district court's denial of intervention request by FDIC under Rule
24(a)(2), noting that "\[i\]t cannot be assumed that the existing
\[private\] parties to the litigation would protect the FDIC's and the
public's interest" in the proper regulation of the federal deposit
insurance system); [Coalition of Arizona/New Mexico
Counties]{.underline}, 100 F.3d at 845 (distinguishing between public
and private interests when assessing intervention motion under Rule
24(a)(2)); [Ceres Gulf v. Cooper]{.underline}, 957 F.2d 1199, 1203 (5th
Cir. 1992) (finding that Director of the Office of Workers' Compensation
Programs had sufficiently distinct interest in consistent application of
regulatory scheme and protection of administrative jurisdiction over
workers' compensation claims, as compared to private parties, to warrant
intervention as of right); [see]{.underline} [generally]{.underline}
[Trbovich v. United Mine Workers]{.underline}, 404 U.S. 528, 538 n.10,
92 S. Ct. 630, 636 n.10 (1972) (characterizing putative intervenor's
burden of establishing inadequacy of representation of interests by
current parties as "minimal").

For all of the foregoing reasons, the United States' should be permitted
to intervene as of right in these remand proceedings. [See]{.underline},
[e.g]{.underline}., [Heaton]{.underline}, 297 F.3d at 422-25 (holding
FDIC should have been permitted to intervene under Rule 24(a)(2) in
order to both defend challenged regulatory action and protect public
interest); [United States ex rel. McGough v. Covington Technologies,
Inc.]{.underline}, 967 F.2d 1391, 1394-96 (9th Cir. 1992) (reversing
district court's denial of motion for intervention as of right given
United States' substantial interests in *qui tam* action); [Ceres
Gulf]{.underline}, 957 F.2d at 1203-04 (district court erred in denying
intervention pursuant to Rule 24(a)(2) when Director of federal workers'
compensation program had direct interest in action challenging his
administrative authority over such program); [Roeder v. Islamic Republic
of Iran]{.underline}, 195 F. Supp.2d 140, 154-55 (D.D.C. 2002)
(permitting United States to intervene as of right in class action by
former hostages against Republic of Iran in light of United States'
substantial sovereign interest in protecting treaty commitments),
[aff'd]{.underline}, 333 F.3d 228 (D.C. Cir. 2003).

**II. This Court Should Alternatively Grant the United States Request**

**for Permissive Intervention Pursuant to Rule 24(b)(2)**

Rule 24(b) of the Federal Rules of Civil Procedure provides an
alternative basis for the United States' permissive intervention in this
action. Rule 24(b) provides that permissive intervention may be granted
"when an applicant's claim or defense and the main action have a
question of law or fact in common." Fed. R. Civ. P. 24(b)(2). Rule
24(b), moreover, also makes special provision for intervention by a
federal agency in lawsuits concerning federal statutes or regulations
within its administrative purview. This Rule provides that, where as
here, a party rests a claim or defense on a federal statute or
regulation, the federal officer or agency "upon timely application may
be permitted to intervene in the action." [Id]{.underline}. When
assessing a motion for permissive intervention, the primary
consideration is "whether the intervention will unduly delay or
prejudice the existing parties." [Commack Self-Service Kosher
Meats]{.underline}, 170 F.R.D. at 106.

The United States' motion for intervention easily satisfies these
requirements for permissive intervention. First, the United States'
central claims in this action \-- namely, that the Department has
reasonably interpreted Standard 4.33.3 in the context of stadium-style
movie theaters, that the court should defer to this interpretation, that
Hoyts (and the rest of the movie theater industry) well understood that
they were affording patrons who use wheelchairs with inferior lines of
sight when locating wheelchair seating areas outside the stadium section
of stadium-style theaters, and that Hoyts violated Title III of the ADA
by placing wheelchair seating areas in the "traditional" seating section
\-- share common legal and factual issues with the private plaintiffs'
claims in this action. Second, as discussed above, the United States'
intervention motion can hardly be characterized as unduly delaying the
proceedings on remand since this motion was filed shortly after the
issuance of the Second Circuit's [Meineker II]{.underline} mandate.
[See]{.underline} discussion [supra]{.underline} pp. 9-12. Third, given
the United States' expertise in ADA issues, its intervention in this
matter would have the salutary effect of enhancing the Court's
understanding of the underlying legal and factual issues and, thereby,
assisting in the efficient resolution of this action. Fourth, the
private plaintiffs' claims (as well as the theater-defendants' defenses)
plainly implicate the ADA and its implementing regulations, thereby
providing a separate basis for the United States' permissive
intervention.

Taken together, these considerations plainly demonstrate the propriety
of the United States' permissive intervention. Indeed, in light of the
Second Circuit's remand order, the United States' intervention in these
remand proceedings presents a paradigmatic situation for application of
Rule 24(b)'s special provision for federal agencies. Here, the Second
Circuit expressly directed this Court on remand to determine the
deference due the United States' interpretation of Standard 4.33.3 with
respect to stadium-style movie theaters. [Meineker II]{.underline}, slip
op. at \*3-4. The United States, as the agency charged with
administering Title III of the ADA, has a vested interest in not only
ensuring that this Court affords the appropriate level of deference to
its interpretation of Standard 4.33.3, but also demonstrating the
propriety of this interpretation and its application to the
theater-defendants. This is precisely the scenario for permissive
intervention by a federal agency contemplated by Rule 24(b). This Court
should, therefore, grant the United States' alternative request for
permissive intervention. [See]{.underline}, [e.g]{.underline}., [Metro
Transp. Co. v. Balboa Ins. Co.]{.underline}, 118 F.R.D. 423, 424 (E.D.
Pa. 1987) (granting Public Utilities Commissioner's motion for
permissive intervention in litigation concerning interpretation of PUC
regulation and commenting: "The rule \[24(b)\] requires that
intervention be granted liberally to governmental agencies because they
purport to speak for the public interest."); [Meyer v. Macmillan Pub.
Co, Inc.]{.underline}, 85 F.R.D. 149, 149-50 (S.D.N.Y. 1980) (granting
EEOC motion for permissive intervention in light of Rule 24(b)'s
"'hospitable attitude'" towards intervention by federal agencies)
(internal citation omitted); [Sobel v. Yeshiva Univ.]{.underline}, 438
F. Supp. 625, 626-27 (S.D.N.Y. 1977) (same).

**[CONCLUSION]{.underline}**

For the foregoing reasons, the Court should grant the United States'
intervention motion and order its intervention in this action (i) as a
matter or right pursuant to Fed. R. Civ. P. 24(a)(2) or, in the
alternative, (ii) permissively pursuant to Fed. R. Civ. P. 24(b). A
proposed order and intervention complaint accompany this memorandum.

Dated: November 10, 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

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 November, 2003, true and
correct copies of Memorandum In Support of the United States' Motion to
Intervene 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

King & Spaulding

1185 Avenue of the Americas

New York, NY 10036-4003

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

Gretchen E. Jacobs

[^1]: ^?^ At some point between November 2000 and March 2001, Hoyts
    \"renovated\" the Crossgates Mall theaters by, [inter]{.underline}
    [alia]{.underline}, relocating some of the wheelchair and companion
    seating areas farther back ([i.e]{.underline}., the 4th to 6th row)
    in the \"traditional\" section of the theaters. [See]{.underline}
    DOJ Intervention Complaint ¶ 14. However, even after these
    \"renovations,\" no wheelchair seating areas are located in the
    stadium sections of the fourteen smaller theaters within the
    complex. [Id]{.underline}.

[^2]: ^?^ Aside from the deletion of the class allegations, plaintiffs'
    original and amended complaints are substantively similar.

[^3]: ^?^ During the pendency of the [Meineker]{.underline} appeal, in
    late March or early April 2003, the Regal Entertainment Group and
    Regal Cinemas, Inc. \[hereinafter collectively referred to as
    "Regal"\] acquired certain of Hoyts\'s stadium-style theater
    complexes, including the Crossgates Mall theater complex.
    [See]{.underline} U.S. Intervention Complaint ¶ 15. As a result,
    Regal now owns, leases, and operates the Crossgates Mall theater
    complex as part of the Regal theater group under the \"Regal\" brand
    name. [Id]{.underline}. The United States' proposed
    complaint-in-intervention thus names not only Hoyts as a
    party-defendant, but also Regal. [See]{.underline} Fed. R. Civ. P.
    25(c) (permitting, in case of transfer of corporate interests,
    substitution or addition of party or parties acquiring interest as
    party-litigants).

[^4]: ^?^ Hoyts's motion for joinder bears a return date of "December
    19, 2003." However, this date appears to be in error since this
    Court's monthly motions calendar lists the third Thursday of each
    month ([i.e]{.underline}., December 18, 2003) as its
    regularly-scheduled civil motions hearing day. Pursuant to Local
    Rule 7.1(b)(1), the United States will thus be filing its opposition
    to Hoyts's joinder motion on or before December 4, 2003.

[^5]: ^?^ While Hoyts may argue that the September 1998 date (when the
    original complaint was filed) - rather the July 2003 date (when the
    Circuit mandate issued) - should control the timeliness calculus,
    such an argument would be misplaced. [See]{.underline} [Roeder v.
    Islamic Republic of Iran]{.underline}, 195 F. Supp.2d 140, 156
    (D.D.C. 2002) ("The appropriate starting point for the timeliness
    inquiry is not the date that the would-be intervenor became aware of
    the existence of the litigation, but the date the intervenor became
    aware of the implications of the litigation."), [aff'd]{.underline},
    333 F.3d 228 (D.C. Cir. 2003). Not until the issuance of [Meineker
    II]{.underline} was the United States made aware that deference and
    due process issues could play such a prominent role on remand.
    Indeed, neither plaintiffs nor Hoyts even briefed or argued these
    issues during the initial round of district court proceedings. These
    issues only moved into the forefront of the litigation during the
    [Meineker II]{.underline} appellate proceedings.