Number range CHAPTER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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

)

SUSAN MEINEKER, et al., )

)

Plaintiffs, )

)

UNITED STATES OF AMERICA, )

)

Plaintiff-Intervenor, )

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

)

HOYTS CINEMAS CORPORATION, )

REGAL ENTERTAINMENT GROUP, and )

REGAL CINEMAS, INC. )

)

Defendants. )

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

**[PLAINTIFF-INTERVENOR UNITED STATES' RESPONSE TO
DEFENDANT'S]{.underline}**

**[OBJECTIONS TO MAGISTRATE HOMER'S FEBRUARY 25, 2004
ORDER]{.underline}**

# TABLE OF CONTENTS

INTRODUCTION 1

FACTUAL AND PROCEDURAL BACKGROUND 2

> A. Meineker Litigation: Factual and Procedural Summary 2
>
> B. Hoyts Litigation: Factual and Procedural Summary 5

ARGUMENT 10

A. Magistrate Judge Homer Properly Held That the Pendency of the Hoyts\
Action in Massachusetts Does Not Divest Private Plaintiffs of Their Own\
Private Right of Action Under the ADA 10

B. Hoyts's Alternative Argument That This Court Should Lift the Partial
Stay\
And Permit Discovery from the United States Is Both Procedurally
Improper\
And Legally Meritless Since Hoyts Was Afforded Full and Complete\
Discovery in the Massachusetts Action 16

**TABLE OF AUTHORITIES**

**FEDERAL CASES**

> *Allen v. McCurry*,
>
> 449 U.S. 90, 101 S. Ct. 411 (1980) 17
>
> *Blonder-Tongue Laboratories, Inc. v. University of Illinois
> Foundation*,
>
> 402 U.S. 313, 91 S. Ct. 1434 (1971) 10, 11
>
> *Ceres Gulf v. Cooper*,
>
> 957 F.2d 1199 (5th Cir. 1992) 13
>
> *Coalition of Arizona/New Mexico Counties for Stable Economic Growth
> v.*
>
> *Department of Interior*, 100 F.3d 837 (10th Cir. 1996) 13
>
> *Doctor\'s Associates, Inc. v. Reinert & Duree, P.C.*,
>
> 191 F.3d 297 (1999) 15
>
> *General Telephone Co. of the Northwest, Inc., v. E.E.O.C.*,
>
> 446 U.S. 318, 100 S. Ct. 1698 (1980) 12, 14
>
> *Green v. City of Tucson*,
>
> 255 F.3d 1086 (9th Cir. 2001) 11
>
> *Hansberry v. Lee*,
>
> 311 U.S. 32, 61 S. Ct. 115 (1940) 10
>
> *Heaton v. Monogram Bank of Georgia*,
>
> 297 F.3d 416 (5th Cir. 2002) 13
>
> *Huron Holding Corp. v. Lincoln Mine Operating Co.*,
>
> 312 U.S. 183, 61 S. Ct. 513 (1941) 17
>
> *Lara v. Cinemark U.S.A., Inc.*,
>
> 207 F.3d 783 (5th Cir. 2000) 6
>
> *Macfarlane v. Village of Scotia, New York*,
>
> 86 F. Supp. 2d 60 (N.D.N.Y. 2000) 17
>
> *Martin v. Wilks*,
>
> 490 U.S. 764, 109 S. Ct. 2180 (1989) 10
>
> *Mason Tenders District Council Pension Fund v. Messera*,
>
> 958 F. Supp. 869 (S.D.N.Y. 1997) 15, 16
>
> *Meineker v. Hoyts Cinemas Corp.*,
>
> 216 F. Supp. 2d 14 (N.D.N.Y. 2002), [vacated and
> remanded]{.underline},
>
> 69 Fed.Appx. 19, 2003 WL 21510423 (2nd Cir. July 1, 2003) *passim*
>
> *Monahan v. New York City Department of Corrections*,
>
> 214 F.3d 275 (2nd Cir.), [cert. denied]{.underline}, 531 U.S. 1035
> (2000) 17
>
> *Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc.*,
>
> 142 F. Supp. 2d 1293 (2001), [rev\'d and remanded]{.underline},
>
> 339 F.3d 1126 (9th Cir. 2003), [petition for cert. filed]{.underline},
>
> 72 U.S.L.W. 3310 (U.S. Oct. 27, 2003) 6
>
> *Richards v. Jefferson County, Alabama*,
>
> 517 U.S. 793, 116 S. Ct. 1761 (1996) 10, 15
>
> *Sam Fox Public Co. v. United States*,
>
> 366 U.S. 683, 81 S. Ct. 1309 (1961) 15, 16
>
> *South Central Bell Telegraph Co. v. Alabama*,
>
> 526 U.S. 160, 119 S. Ct. 1180(1999) 11
>
> *Town of Lockport v. Citizens for Committee Action*,
>
> 430 U.S. 259, 97 S. Ct. 1047 (1977) 15
>
> *United States v. Hoyts Cinemas Corp.*, 256 F. Supp. 2d 73 (1st Cir.
> 2003) *passim*

**DOCKETED CASES**

> *United States v. Cinemark USA, Inc.*,
>
> No. 1:99 CV-705 (N.D. Ohio Nov. 19, 2001),
>
> [rev\'d]{.underline}, 348 F.3d 569 (6th Cir. 2003), [petition for
> cert. filed]{.underline},
>
> 72 U.S.L.W. 3513 (U.S. Feb. 4, 2004) 6

**FEDERAL STATUTES AND REGULATIONS**

> Fed. R. Civ. P. 19(a) 3
>
> 42 U.S.C. § 12101(b)(1) 13
>
> 42 U.S.C. §§ 12181-12189 2
>
> 42 U.S.C. § 12188(b)(1) 12
>
> 42 U.S.C. § 12188(a) 4, 12
>
> Clean Water Act, 33 U.S.C. § 1319(g)(6)(A)(ii) 13
>
> Fair Labor Standards Act, 29 U.S.C. § 216(b) 13
>
> Resource Conservation and Recovery Act, 42 U.S.C. § 6972(b)(1)(B) 13
>
> 28 C.F.R. pt. 36, App. A,§ 4.33.3 2

**MISCELLANEOUS**

> Charles A. Wright, et. al, 18A [Federal Practice and
> Procedure]{.underline}, § 4458.1
>
> (2nd ed. 2002) 14, 17
>
> James Wm. Moore, 18 [Moore\'s Federal Practice]{.underline} §
> 131.40\[3\]\[e\] (3rd ed. 2003) 14

**INTRODUCTION**

On February 25, 2004, Magistrate Judge Homer entered an order (i)
granting Hoyts's request to stay these remand proceedings as between the
United States and Hoyts due to the pendency of appeals before the First
Circuit in another stadium-style theater action ([United States v. Hoyts
Cinemas Corp.]{.underline}) to which they are both parties; (ii) denying
Hoyts's request to stay these remand proceedings as to the private
plaintiffs; and (iii) granting the private plaintiffs' motion to compel
supplementary interrogatory responses from Hoyts. [See]{.underline}
Docket No. 112. The United States does not challenge Magistrate Judge's
entry of a partial stay as between Hoyts and the United States. Indeed,
the United States did not oppose the entry of such a stay given the
unique procedural juxtaposition of these remand proceedings and the
[Hoyts]{.underline} appeal.

The United States nonetheless submits this memorandum in response to
Hoyts's objections to Magistrate Judge Homer's February 25^th^ Order to
address two important issues raised by these objections. First, Hoyts
mistakenly asserts that both the United States and the private
plaintiffs are preclusively bound by the [Hoyts]{.underline} action.
Both due process principles and Title III's statutory enforcement scheme
ensure that private plaintiffs (such as Sybil McPherson) have a private
right to pursue their own individual Title III-based discrimination
claims irrespective of any prior or pending government action (such as
[Hoyts]{.underline}). Second, Hoyts argues in the alternative that this
Court should lift the partial stay -- a stay requested by Hoyts -- in
order to allow Hoyts to conduct additional discovery against the United
States. Hoyts's alternative argument should be summarily dismissed as
procedurally improper and legally meritless since Hoyts has already had
a full and complete opportunity to conduct discovery against the United
States in the [Hoyts]{.underline} action.

**FACTUAL AND PROCEDURAL BACKGROUND**

A. [Meineker Litigation: Factual and Procedural Summary]{.underline}

In September 1998, plaintiffs Susan Meineker and Sybil McPherson filed
this action alleging that Hoyts's Crossgates Stadium 18 complex violated
Title III of the ADA (42 U.S.C. §§ 12181-12189) and its implementing
regulations -- particularly 28 C.F.R. pt. 36, App. A., § 4.33.3
("Standard 4.33.3\") -- by failing to locate wheelchair seating areas
within the "stadium" sections of the majority of the theaters comprising
this complex, by failing to provide appropriate companion seating
locations, and by physically segregating wheelchair seating in the rear
corners of the larger theaters in "corrals" or "pens." First Amended
Complaint ¶¶ 19-22, 33-36, 54-64 (filed Feb. 12, 1999) (Docket \# 8).

In March 2001, Hoyts completed renovations to the wheelchair and
companion seating areas at the Crossgates Stadium 18 complex. Affidavit
of Ray Gaudet ("Gaudet Aff.") ¶¶ 2-12 (dated Nov 15, 2001) (Docket \#
52). In the fourteen smaller theaters, these renovations generally
consisted of removing wheelchair and companion seating areas from the
first row of the traditional section to other rows in this same section
located a few feet farther back from the screen ([i.e]{.underline}.,
third through fifth rows), and/or otherwise rearranging wheelchair and
companion seating areas within the traditional section. Id. No
wheelchair seating areas were added to the stadium sections of these
fourteen smaller theaters during these renovations. [Id]{.underline}.

In late 2001, after the completion of these renovations, Hoyts moved for
summary judgment. [See]{.underline} Docket Nos. 50-54. The private
plaintiffs responded by filing a cross-motion for summary judgment.
[See]{.underline} Docket Nos. 58-62. Thereafter, in August 2002, this
Court issued a memorandum opinion granting defendant Hoyts\'s motion for
summary judgment. [Meineker v. Hoyts Cinemas Corp.]{.underline}, 216 F.
Supp. 2d 14 (N.D.N.Y. 2002) ("[Meineker I]{.underline}"), [vacated and
remanded]{.underline}, 69 Fed.Appx. 19, 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 Stadium 18 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*. On July 1, 2003, the Second Circuit
issued a summary order vacating [Meineker I]{.underline} and remanded
for further proceedings. [Meineker v. Hoyts Cinemas Corp.]{.underline},
69 Fed.Appx. 19, 2003 WL 21510423 (2nd Cir. July 1, 2003) ("[Meineker
II]{.underline}"). This summary order, stated, in relevant part, that
remand was necessary for adjudication of two primary 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).

In fall 2003, Hoyts and the United States each filed competing motions
seeking to have the United States afforded party status in these remand
proceedings. First, in late October 2003, Hoyts filed a motion seeking
to have the United States compulsorily joined as an involuntary
plaintiff pursuant to Fed. R. Civ. P. 19(a). [See]{.underline} Docket
Nos. 88 - 90. A few weeks later, the United States moved to intervene as
a party-plaintiff. [See]{.underline} Docket Nos. 92-94. The parties also
filed briefs opposing the other parties' respective joinder and
intervention motions. [See]{.underline} Docket Nos. 97-100, 103 (Hoyts'
opposition to United States' intervention motion); Docket Nos. 102, 106
(United States' opposition to Hoyts' joinder motion). After reviewing
the parties' respective briefs on these motions, Magistrate Judge Homer
granted the United States's motion and authorized the filing of its
complaint-in-intervention. [See]{.underline} Order (filed Jan. 23, 2003)
(Docket \# 108).

In late February 2004, during the course of a discovery dispute between
private plaintiffs, Hoyts sought an order from Magistrate Judge Homer
staying these remand proceedings pending the resolution of the
cross-appeals pending before the United States Court of Appeals for the
First Circuit in the [Hoyts]{.underline} litigation. [See]{.underline}
discussion [infra]{.underline} pp. 5-10.[^1] Due to the overlapping
nature of these remand proceedings and the pending [Hoyts]{.underline}
appeals, the United States did not oppose entry of a stay as between
Hoyts and the United States pending issuance of a decision by the First
Circuit. [See]{.underline}, [e.g]{.underline}., Affidavit of Patricia A.
Green ("Griffin Aff.") (filed March 15, 2004) (Docket \# 114), Ex. G,
Attachment A (Correspondence from Gretchen E. Jacobs to Leslie Arnold);
[see]{.underline} [also]{.underline} Griffin Aff., Ex. H, Transcript of
Discovery Conference, pp. 5-6, 11-15. However, the United States opposed
Hoyts's stay motion with respect to the private plaintiffs on the
grounds that (i) plaintiffs have a statutorily-protected private right
of action under the Americans With Disabilities Act (42 U.S.C. §
12188(a)) that exists independently of the United States' filing of an
enforcement action in [Hoyts]{.underline}, and (ii) [Hoyts]{.underline}
has no preclusive effect on the private plaintiffs since they are not
parties to that action. [See]{.underline}, [e.g]{.underline}., Griffin
Aff., Ex. H, Transcript of Discovery Conference, pp. 5-6, 11-15.

On February 24, 2004, during the telephonic discovery conference,
Magistrate Judge Homer granted Hoyts' unopposed motion to stay these
remand proceedings as between Hoyts and the United States, but denied
Hoyts's stay request in all other respects. [See]{.underline},
[e.g]{.underline}., Griffin Aff., Ex. H, Transcript of Discovery
Conference, pp. 15-16. First, Magistrate Judge Homer agreed that the
private plaintiffs' Title III-based private right of action was not
pre-empted by the United States' prosecution of the [Hoyts]{.underline}
action. Id. at 16. Second, Magistrate Judge Homer noted that the instant
litigation has been pending for several years ([i.e]{.underline}., since
1998) and that the Second Circuit's remand order limited discovery to a
few relatively discrete matters. [Id]{.underline}. The following day, on
February 25, 2004, the Court issued a brief written order memorializing
these findings. [See]{.underline} Docket No. 112.

B. [Hoyts Litigation: Factual and Procedural Summary]{.underline}

For several years, the instant private litigation has also been
proceeding on parallel course with another stadium-style theater case
styled [United States v. Hoyts Cinemas Corp.]{.underline}, et al., C.A.
No. 00-12567-WGY (D. Mass.) ("[Hoyts]{.underline}"). Commenced in
December 2000, the [Hoyts]{.underline} action was initially two separate
enforcement actions filed by the United States against Hoyts Cinemas
Corporation ("Hoyts") and National Amusements, Inc. ("National").
Affidavit of Gretchen E. Jacobs (dated April 2, 2004) ("Jacobs Aff."),
Ex. 1 ([Hoyts]{.underline} complaint). These two separate enforcement
actions were subsequently consolidated into a single action that named
both Hoyts and National as co-defendants. [Id]{.underline}. at Ex. 2
([Hoyts]{.underline} docket sheet).[^2] In the [Hoyts]{.underline}
complaint, the United States alleged that both Hoyts and National
violated the ADA and its implementing regulations by failing to design
and construct their respective stadium-style theaters nationwide in a
manner that made them readily accessible to, and usable by, persons with
disabilities. Jacobs Aff., Ex. 1 at ¶¶ 1-4, 10-15. Specifically, the
United States alleged that the theater-defendants violated Standard
4.33.3\'s comparability and integration mandates by locating wheelchair
and companion seating areas \-- including the stadium-style theaters at
the Crossgates Stadium 18 complex \-- outside the stadium sections of
the vast majority of their stadium-style theater complexes.
[Id]{.underline}. at ¶¶ 20-22.

Following several years of extensive discovery and related procedural
battles, [see]{.underline}, [e.g]{.underline}., Jacobs Aff., Ex. 2,
Docket Nos. 32-42, 51-55, 58-62, 68-72, 73-76, 80, 83-94, 95-98, Hoyts
and National each filed motions for summary judgment in June 2002.
[Id]{.underline}., Docket Nos. 103-117, 146-49. Citing [Lara v. Cinemark
U.S.A., Inc.]{.underline}, 207 F.3d 783 (5th Cir. 2000) and its
then-existing district court progeny, the theater-defendants argued that
their respective stadium-style theaters fully complied with Standard
4.33.3 as a matter of law because the wheelchair and companion seating
areas were located among the seats offered to the general public and
provided unobstructed views of the movie screen. [Id]{.underline}.;
[see]{.underline} [also]{.underline} [United States v. Hoyts Cinemas
Corp]{.underline}., 256 F.Supp.2d 73, 82-83, 91 (1st Cir. 2003)
(summarizing theater-defendants' summary judgment arguments).[^3] Both
Hoyts and National also claimed that applying the Department's
interpretation of Standard 4.33.3 to their existing stadium-style
theaters would violate due process principles. [Id]{.underline}. The
United States filed a combined opposition to the theater-defendants'
summary judgment motions, but did not separately cross-move for summary
judgment. [Id]{.underline}., Docket Nos. 127- 140. The Court held oral
argument in September 2002 and, at the Court's request, all parties
subsequently submitted lengthy supplemental post-argument briefs and
exhibits. [Id]{.underline}., Docket No. 157.

Thereafter, in March 2003, Chief Judge Young issued a twenty-page
decision denying the theater-defendants' motions for summary judgment
and *sua sponte* granting summary judgment in favor of the United
States. [See]{.underline} [United States v. Hoyts]{.underline}, 256
F.Supp.2d 73 (D. Mass. 2003), [appeals docketed]{.underline}, Nos.
03-1646, 03-1787 (1st Cir. June 5, 2003). Judge Young commenced his
opinion with a comprehensive review of Hoyts's and National's
stadium-style theaters in terms of their respective floor plans,
wheelchair seating areas, amenities, and overall design.
[See]{.underline} 256 F.Supp.2d at 77-80. The Court noted that both
theater-defendants' tiered stadium-style designs elevated each
successive row in the stadium section (typically, 15-18 inches) such
that "\[e\]ach row is, in a sense, an island unto itself" free from
visual obstructions from patrons seated in the preceding rows.
[Id]{.underline}. at 78. The Court also concluded that stadium sections
provided a "more expansive view of the screen" because patrons are
permitted to view the screen at a flatter (and more comfortable) angle
as compared to seating in the traditional portions of theaters.
[Id]{.underline}. The theater-defendants' stadium-style theaters also
tended to have larger screens as compared to traditional theaters which,
as a consequence, meant that viewers seated closer to the front of the
screen have greater difficulty viewing the entire screen.
[Id]{.underline}. at 78-79.

Based on these and other considerations, Judge Young firmly concluded
\-- as a factual matter\-- that the stadium sections of Hoyts's and
National's stadium-style theaters offered superior viewing experiences
that were generally inaccessible to patrons who use wheelchairs:

> First, despite many variations, most of the wheelchair accessible
> seating is located in the traditional section. Second, given the
> inherent superiority of the view afforded by the seats in the
> stadium-style section as opposed to that provided in the more
> traditional seating sections, their physical locations, and other
> characteristics, the best seats in all of the theaters reside in the
> stadium section. The stadium section contains the most desirable
> seats, and wheelchair-accessible seating, on the whole, is generally
> not part of this section.

256 F.Supp.2d at 81; [see]{.underline} [also]{.underline} id. at 78
(characterizing stadium-seating as providing patrons with "a markedly
superior view and experience to traditional seating"). In addition, the
Court went on to take judicial notice of the "obvious and incontestable
fact" that movie patrons overwhelmingly prefer stadium seating:
"Naturally, because of their basic location and superiority, patrons
entering a stadium-style theater will choose seats in the stadium
section and only go to the traditional seats in the front of the theater
when . . . the stadium is full." [Id]{.underline}.

The Court then turned to a legal analysis of Standard 4.33.3. Finding
the [Lara]{.underline} line of cases unpersuasive, the Court
characterized the theater-defendants' "obstruction only" line-of-sight
argument as "indefensible" and inconsistent with the principles
underlying the ADA. 256 F.Supp.2d at 90. Instead, the Court agreed with
the United States' "eminently reasonable" view that Section's 4.33.3\'s
comparability mandate represents "a 'qualitative requirement' and
\[that\] viewing angles are truly the only operative way of measuring
whether the line of sight offered by a \[wheelchair\] seat is
'comparable' to those offered the general public." 256 F.Supp.2d at 87;
[see]{.underline} [also]{.underline} [id]{.underline}. at 88 ("the
comparable 'lines of sight' requirement . . . means that viewing angles
*must* be taken into account") (emphasis in original). Applying this
standard to Hoyts and National, the Court held their respective
stadium-style theaters in violation of Standard 4.33.3\'s comparability
requirement:

> \[S\]tadium-style theaters cannot possibly offer 'lines of sight
> comparable to those for members of the general public' when
> wheelchair-accessible seats are placed only in the traditional-seating
> section, whether on risers or otherwise . . . . \[¶\] As a matter of
> simply geometry, the seats on the access-aisle and in the traditional
> seating section *always* offer an inferior viewing angle to the
> stadium-seats. Given the fact that the majority of seats in all of the
> auditoriums at issue are stadium seats, it is impossible for the
> \[Hoyts and National\] stadium-style theaters to comport with the
> comparable 'lines of sight' requirement of Section 4.33.3 as a *matter
> of law*, absent wheelchair accessible seating in the stadium section.

256 F.Supp.2d at 88 (emphasis in original).[^4]

Having found the theater-defendants in violation of Standard 4.33.3,
Judge Young then turned to the issue of remedial relief. After reviewing
the regulatory history underlying Standard 4.33.3, as well as prior
judicial interpretations by federal courts, the Court held that both
Hoyts and National would be required to locate (or relocate) wheelchair
seating areas within the stadium sections of their stadium-style
theaters, but only in such theaters constructed or refurbished after the
commencement of the [Hoyts]{.underline} action in December 2000.
[See]{.underline} 256 F.Supp.2d at 91-93. The Court premised this
holding on due process grounds, concluding that the theater-defendants
did not have "fair warning" -- at least until December 2000 -- of what
Standard 4.33.3 required. [Id]{.underline}. The Court thus entered the
following order of judgment:

> With respect to all stadium-style theaters owned or leased by \[Hoyts
> or National\] wherein construction or refurbishment (that is, any
> change that requires a building permit under local law) occurs on or
> after the date upon which this lawsuit commenced, Section 4.33.3
> requires that wheelchair accessible seating must be located within the
> stadium section. To be clear, to comply with Section 4.33.3,
> wheelchair seating cannot be located solely in the traditional
> section, nor solely in the access-aisle, nor solely in both the
> traditional section and access-aisle.

256 F.Supp.2d at 93.

Both Hoyts and National immediately noticed their respective appeals of
Judge Young's opinion and judgment. [See]{.underline} Jacobs Aff., Ex.
2, Docket Nos. 172 & 179; [see]{.underline} [also]{.underline}
[id]{.underline}., Ex. 179 (Hoyts's notice of appeal). In these appeals,
the theater-defendants primarily contest Judge Young's interpretation of
Standard 4.33.3 and finding of ADA liability. [See]{.underline} Jacobs
Aff., Ex. 3, Brief of Defendant-Appellant/Cross-Appellee Hoyts Cinemas
Corporation (docketed Aug. 20, 2003) (PACER appellate docket). Hoyts
also challenges Judge Young's discovery orders precluding the company
from seeking production of internal information from the United States
protected by the deliberative process privilege and other related
privileges. [Id]{.underline}. The United States subsequently filed a
cross-appeal with respect to that portion of Judge Young's order
limiting the theater-defendants' remedial obligations to prospective
relief dating from the commencement of the [Hoyts]{.underline} action in
December 2000. Jacobs Aff., Ex. 1, Docket No. 181, Ex. 4. Briefing has
been completed on the parties' respective [Hoyts]{.underline} appeals
and oral argument was conducted before a panel of the First Circuit in
early February 2004. Jacobs Aff., Ex. 3 (PACER appellate docket).

**ARGUMENT**

A. [Magistrate Judge Homer Properly Held That the Pendency of the Hoyts
Action in Massachusetts Does Not Divest Private Plaintiffs of Their Own
Private Right of Action Under the ADA]{.underline}

Hoyts's objections primarily focus on its contention that Magistrate
Judge Homer erred when concluding that the [Hoyts]{.underline} action
did not extinguish the private plaintiffs' right to pursue their
individual discrimination claims in these remand proceedings.
[See]{.underline} Hoyts Mem. at 6-10. Specifically, Hoyts asserts that
Magistrate Judge Homer should have granted their stay request with
respect to the entire action -- rather than entering a partial stay vis
à vis Hoyts and the United States -- on the theory that the United
States has already litigated the [Hoyts]{.underline} action " in its
representative capacity on behalf of all plaintiffs." [Id]{.underline}.
at 7. Hoyts's objections, however, are fatally flawed because they (i)
misconstrue the ADA's enforcement scheme for Title III-based actions,
(ii) blur the important distinction between actions representing
"public" and "private" interests, and, most fundamentally, (iii) ignore
constitutionally-recognized due process principles.

Based on the "deep-rooted historic tradition that everyone should have
his \[or her\] own day in court," [Martin v. Wilks]{.underline}, 490
U.S. 764, 762, 109 S. Ct. 2180, 2184 (1989) (internal quotation
omitted), well-established Supreme Court precedents have long held that
litigants generally may not be precluded -- consistent with federal due
process principles -- by a judgment in a prior action to which they were
not a party. [See]{.underline}, [e.g]{.underline}., [Richards v.
Jefferson County, Alabama]{.underline}, 517 U.S. 793, 798, 116 S. Ct.
1761, 1765-66 (1996); [Blonder-Tongue Laboratories, Inc. v. University
of Illinois Foundation]{.underline}, 402 U.S. 313, 329, 91 S. Ct. 1434,
1443 (1971); [Hansberry v. Lee]{.underline}, 311 U.S. 32, 40, 61 S. Ct.
115, 117 (1940). These due process considerations apply irrespective of
whether, for example, the first and second actions involve "identical
issues," [see]{.underline} [Blonder-Tongue]{.underline}, 402 U.S. at
329, 91 S. Ct. at 1443 ("Due process prohibits estopping \[litigants who
never appeared in an earlier action\] despite one or more existing
adjudications of the identical issue which stand squarely against their
position."); [Green v. City of Tucson]{.underline}, 255 F.3d 1086,
1100-01 (9^th^ Cir. 2001) (*en banc*) (mere identity of interests
insufficient basis for preclusion), or share common counsel,
[see]{.underline} [South Central Bell Tel. Co. v. Alabama]{.underline},
526 U.S. 160, 167-68, 119 S. Ct. 1180, 1185 (1999) (rejecting argument
that corporation in federal action challenging validity of state tax law
was precluded by adverse judgment against corporate-plaintiffs in prior
state tax action despite fact that both suits involved similar issues
and both sets of corporate-plaintiffs were represented by same counsel).

Against this legal backdrop, it is plain that Hoyts's claim that this
action should be stayed in its entirety as a result of the allegedly
preclusive effect of the [Hoyts]{.underline} action on the private
plaintiffs in these remand proceedings lacks merit. It is undisputed
that the private plaintiffs in this case were never parties to, nor ever
appeared in, the [Hoyts]{.underline} action. Nor did the private
plaintiffs direct or control the United States' participation in the
[Hoyts]{.underline} action. Additionally, Hoyts's repeated claim that
this action and [Hoyts]{.underline} litigation "involve the identical
issues concerning the Crossgates theaters" carries no constitutional
significance since, even assuming this characterization to be valid
(which the United States does not believe is the case), the foregoing
Supreme Court caselaw makes plain that it is the identity of *parties*
-- rather than issues -- that controls the due process calculus on
matters of preclusion. [See]{.underline}, [e.g]{.underline}., Hoyts Mem.
at 1, 5, 10, 13.[^5] Private plaintiffs thus have a
constitutionally-protected right to "their day in court" in this action
in order to conduct their own discovery, marshal their own evidence,
present their own theories of liability and remedial relief, and
otherwise prosecute their ADA claims in the manner of their own
choosing.

Hoyts attempts to escape this constitutional conundrum by claiming that
the [Hoyts]{.underline} action nonetheless has preclusive effect on the
private plaintiffs in these remand proceedings because the United States
necessarily prosecuted [Hoyts]{.underline} "in the public interest" and
"in its representative capacity on behalf of all plaintiffs."
[See]{.underline} Hoyts Mem. at 7-10. This argument, however, lacks
merit for two significant reasons. First, Hoyts's argument exhibits a
fundamental misunderstanding of Title III's enforcement scheme. Title
III of the ADA grants private plaintiffs a statutorily-protected private
right of action to seek redress for individual acts of discrimination.
[See]{.underline} 42 U.S.C. § 12188(a). Congress also entrusted the
Attorney General with responsibility for investigating, settling, or, if
necessary, prosecuting alleged Title III violations in cases of general
public importance or involving a widespread pattern or practice of
disability-based discrimination. [See]{.underline} 42 U.S.C. §
12188(b)(1). Because of the widely divergent purposes underlying these
two types of enforcement actions, the Department of Justice's
enforcement responsibilities are intended to parallel -- not preempt --
an individual's private right of action. As the Supreme Court noted when
rejecting a similar argument that a nationwide pattern-or-practice
action prosecuted by the EEOC precluded private litigants from
subsequently filing their own discrimination complaints:

> These private-action rights \[under Title VII\] suggest that the EEOC
> is not merely a proxy for the victims of discrimination . . . .
> Although the EEOC can secure specific relief, such as hiring or
> reinstatement . . . on behalf of discrimination victims, the agency is
> guided by the 'overriding public interest in equal employment
> opportunity . . . asserted through direct Federal enforcement.' When
> the EEOC acts, albeit at the behest of and for the benefit of specific
> individuals, it acts also to vindicate the public interest in
> preventing employment discrimination.

[General Telephone Co. of the Northwest, Inc., v. E.E.O.C.]{.underline},
446 U.S. 318, 326, 100 S. Ct. 1698, 1704 (1980) (internal citation
omitted); [see]{.underline} [also]{.underline} [id]{.underline}. at 326
n.8 ("\[T\]he EEOC does not function simply as a vehicle for conducting
litigation on behalf of private parties.").

Hoyts's contention that the United States's Title III-based enforcement
actions (such as [Hoyts]{.underline}) merely serve as a "proxy" for
victims of discrimination (such as Sybil McPherson) is thus baseless.
The Department of Justice, as the agency with primary enforcement
authority under Title III of the ADA, investigates and prosecutes
discrimination complaints in terms of the broader national interests in
eradicating disability-based discrimination. Individual litigants
pursuing private actions, on the other hand, must litigate with an eye
towards vindicating their own personal rights and remedies. While these
national and individual interests may at times overlap, it cannot be
assumed that they are so necessarily and precisely aligned as to
preclude private actions whenever the United States files its own Title
III-based enforcement action. [Cf]{.underline}. [Heaton v. Monogram Bank
of Georgia]{.underline}, 297 F.3d 416, 424 (5th Cir. 2002)
(distinguishing between public and private interests when assessing
government's intervention motion under Rule 24(a)(2)); [Coalition of
Arizona/New Mexico Counties for Stable Economic Growth v. Dept. of
Interior]{.underline}, 100 F.3d 837, 845 (10th Cir. 1996) (same); [Ceres
Gulf v. Cooper]{.underline}, 957 F.2d 1199, 1203 (5th Cir. 1992) (same).
In addition, nowhere does the ADA or its legislative history suggest
that Congress intended the Attorney General's enforcement authority
under Title III to pre-empt or otherwise limit private rights of
action.[^6] Indeed, given that one of the ADA's central purposes is to
"provide a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities," 42 U.S.C. §
12101(b)(1), interpreting Title III's enforcement provision as providing
for complementary -- rather than mutually exclusive -- modes of
enforcement best serves the ADA's goals.

Taken together, these considerations strongly counsel in favor of
affirming Magistrate Judge Homer's holding that the [Hoyts]{.underline}
action does not preclude the private plaintiffs in this action from
pursuing their own individual Title III-based discrimination complaint.
[See]{.underline}, [e.g]{.underline}., [General Telephone]{.underline},
446 U.S. at 333, 100 S. Ct. at 1707-08 ("In light of the 'general intent
to accord parallel of overlapping remedies against discrimination,' we
are unconvinced that it would be consistent with the remedial purposes
of the \[Title VII\] statutes to bind all \[employees\] with
discrimination grievances against the employer by the relief obtained
under an EEOC judgment or settlement against the employer.") (internal
citation omitted); Charles A. Wright, et. al, 18A [Federal Practice and
Procedure]{.underline}, § 4458.1 (2nd ed. 2002) ("In most circumstances
. . . it should be presumed that public enforcement actions are not
intended to foreclose traditional common-law claims or private remedies
created by statute."); James Wm. Moore, 18 [Moore's Federal
Practice]{.underline} § 131.40\[3\]\[e\] (3rd ed. 2003)
("\[I\]ndividuals asserting violations of their civil rights frequently
are permitted to bring private actions despite past or pending
litigation by the government addressing the same acts or practices by
the defendants.").

Moreover, setting aside the specific statutory context of Title III's
enforcement scheme, Hoyts's preclusion argument also ignores the
critical distinction between actions seeking to vindicate public versus
private interests. While true that private litigation may sometimes be
precluded by prior or pending actions prosecuted by public entities,
this is only the case where private parties are themselves pursuing
matters of general public interest or seeking to enforce common public
rights -- such as the allocation of natural resources, the validity of a
bond issue, or the location of a telephone transmission tower. In such
cases, the public entities are deemed to be acting as representatives of
its citizens who are thereby bound by the resulting judgment.[^7] It is
these types of "public rights" cases that are cited by Hoyts in support
of its argument that the [Hoyts]{.underline} action precludes the
private plaintiffs from continuing to conduct discovery or otherwise
litigate their claims during these remand proceedings.
[See]{.underline}, [e.g]{.underline}., Hoyts Mem. at 6-7.

Here, however, the private plaintiffs are not seeking to protect "public
rights," but, rather, to vindicate their own private right to view
movies at the Crossgates Stadium 18 complex in an integrated setting
with lines of sight comparable to those offered other members of the
general public. [See]{.underline} discussion [supra]{.underline} p. 2.
Hoyts's citation to "public rights" cases is, therefore, inapposite.
Rather, because the private plaintiffs herein seek to protect their own
personal interests in accessible moviegoing at the Crossgates Stadium 18
complex, both Supreme Court and federal caselaw provide ample support
for maintenance of their own private right of action notwithstanding any
prior government litigation concerning Hoyts's stadium-style theaters
nationally. [See]{.underline}, [e.g]{.underline}.,
[Richards]{.underline}, 317 U.S. at 1766-69 (holding that
plaintiff-taxpayers in second tax action denied due process when
precluded from pursuing constitutional challenge to personal tax levy
since first tax action litigated by county government concerned more
general public tax interests); [Town of Lockport v. Citizens for Comm.
Action]{.underline}, 430 U.S. 259, 263 n.7, 97 S. Ct. 1047, 1051 n.7
(1977) (district court properly rejected argument that first suit by
county government challenging constitutionality of city charter law
barred second action by private plaintiffs relating to same law); [Sam
Fox Pub. Co. v. United States]{.underline}, 366 U.S. 683, 689, 81 S. Ct.
1309, 1313 (1961) ("\[A\] person whose private interests coincide with
the public interest in government antitrust litigation is nonetheless
not bound by the eventuality of such litigation."); [Mason
Tenders]{.underline}, 958 F. Supp. at 885-86 (holding that United
States' prior ERISA action did not preclude private plaintiffs from
subsequently pursuing their own private ERISA claims).

B. [Hoyts's Alternative Argument That This Court Should Lift the Partial
Stay And Permit Discovery from the United States Is Both Procedurally
Improper And Legally Meritless Since Hoyts Was Afforded Full and
Complete Discovery in the Massachusetts Action]{.underline}

As an alternative argument, Hoyts urges this Court to lift the partial
stay entered by Magistrate Judge Homer -- *a stay requested by Hoyts* --
so that the company may conduct additional discovery against the United
States. [See]{.underline} Hoyts Mem. at 14-15. Specifically, Hoyts
argues that this partial stay improperly precludes it from taking
discovery on the two issues ([i.e]{.underline}., deference and notice)
identified by the Second Circuit in its remand order and, thereby,
prejudices its ability to defend itself in these remand proceedings.
[Id]{.underline}. Hoyts's alternative argument is meritless and should
be summarily dismissed.

As an initial matter, Hoyts's attempt to lift the partial stay should be
rejected as procedurally improper. As discussed previously,
[see]{.underline} [supra]{.underline} p. 4, Hoyts itself raised the
issue of a stay in the midst of a discovery dispute with the private
plaintiffs. After being apprised of Hoyts's intent to seek a stay at the
then-upcoming discovery conference, the United States informed defense
counsel that it did not oppose Hoyts's request for a stay as between the
United States and Hoyts due to the overlapping nature of these remand
proceedings and the [Hoyts]{.underline} appeal currently pending before
the First Circuit. [Id]{.underline}. at pp. 4-5. Magistrate Judge Homer
thereafter granted Hoyts's unopposed request to stay proceedings between
Hoyts and the United States. [Id]{.underline}. at p. 5;
[see]{.underline} [also]{.underline} Griffin Aff., Ex. H, Transcript of
Discovery Conference, pp. 15-16. Hoyts's attempt herein to challenge the
stay that it previously championed before the Magistrate Judge smacks of
"bait and switch" litigation tactics and should, therefore, be denied as
procedurally improper.

Moreover, even setting aside these procedural irregularities, Hoyts's
alternative attempt to lift the partial stay is still fatally flawed
because Hoyts has already been provided with full and complete discovery
against the United States in the [Hoyts]{.underline} action. Hoyts and
the United States engaged in nearly three years of discovery during the
district court proceedings in [Hoyts]{.underline} -- including the
United States' production of thousands of pages of documents and
presentation of four Department of Justice and other federal witnesses
for deposition by the theater-defendants. During the course of
discovery, the theater-defendants repeatedly challenged the United
States' assertion of deliberative process and other discovery privileges
concerning internal government information and materials.
[See]{.underline}, [e.g]{.underline}., Jacobs Aff., Ex. 1, Docket Nos.
73-76, 80, 93-94, 95-98. In each case, Judge Young rebuffed the
theater-defendants' motions to compel and affirmed the United States'
privilege claims. [See]{.underline} [id]{.underline}., Endorsed Order
(filed March 6, 2002), Endorsed Order (filed April 3, 2002), Endorsed
Order (filed April 19, 2002). With the issuance of Judge Young's summary
judgment decision in March 2003, these interlocutory discovery rulings
were "merged" into the final judgment and became *res judicata* as
between the United States and Hoyts. [See]{.underline},
[e.g]{.underline}., [Allen v. McCurry]{.underline}, 449 U.S. 90, 94-95,
101 S. Ct. 411, 414-15 (1980); [Monahan v. New York City Dept. of
Corrections]{.underline}, 214 F.3d 275, 284-87 (2nd Cir.), [cert.
denied]{.underline}, 531 U.S. 1035 (2000).[^8] Thus, as a matter of law,
Hoyts has already been afforded all the discovery from the United States
to which it is legally entitled concerning the stadium-style theater
issues relevant to these remand proceedings.[^9]

Lastly, Hoyts's attempt to lift the partial stay founders on the shoals
of well-established preclusion principles. Both Hoyts and the United
States undisputedly agree that the [Hoyts]{.underline} judgment has
preclusive effect as between themselves in the instant remand
proceedings since each was a party to the Massachusetts litigation.
[See]{.underline}, [e.g]{.underline}., Hoyts Mem. at 2, 6-10. Given this
understanding, there is no need for Hoyts to conduct additional
discovery in this case. That is, the [Hoyts]{.underline} judgment
directly resolved the two primary issues on which the Second Circuit
based its remand order -- namely, (i) whether the United States'
interpretation of Standard 4.33.3 should be afforded deference, and (ii)
whether Hoyts had reasonable notice of the United States' interpretation
at the time of construction or renovation of the Crossgates Stadium 18
complex. [See]{.underline} [Meineker II]{.underline}, 2003 WL at \*6;
[see]{.underline} [also]{.underline} discussion [supra]{.underline} p.
3. On the deference issue, Judge Young expressly concluded that the
United States's interpretation of Standard 4.33.3 was entitled to
substantial deference because the United States had consistently
interpreted this section since the [Lara]{.underline} litigation and had
not proffered this interpretation as a "convenient litigating position."
[See]{.underline} 256 F. Supp.2d at 89-90. The Court therefore concluded
that the United States' interpretation was entitled to substantial
deference. [Id]{.underline}. Second, on the notice issue, the
[Hoyts]{.underline} judgment makes plain that Hoyts had
constitutionally-sufficient notice of the United States' interpretation
of Standard 4.33.3 by December 2000 when the United States commenced the
[Hoyts]{.underline} action. [Id]{.underline}. at 90-93. Application of
the [Hoyts]{.underline} judgment to the Crossgates complex thus fully
resolves all of the substantive issues as between the United States and
Hoyts which where designated by the Second Circuit for resolution in
these remand proceedings. Indeed, should the First Circuit affirm Judge
Young's summary judgment ruling, the United States is prepared to move
for summary judgment on the ground that, applying the terms of this
judgment to the Crossgates Stadium 18 complex, Hoyts must relocate the
wheelchair and companion seating locations to the stadium sections of
the fourteen smaller theaters by virtue of Hoyts's renovations of these
theaters after December 2000.

Dated: April 2, 2004

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
>
> [/s/ GRETCHEN E. JACOBS]{.underline}
>
> Trial Attorney
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> 950 Pennsylvania Avenue, N.W.

1425 N.Y. Avenue Building

Washington, D.C. 20530

Telephone: (202) 514-9584

Facsimile: (202) 616-6862

gretchen.jacobs@usdoj.gov

Counsel for Plaintiff-Intervenor

> United States of America

[^1]: ^?^ This was not the first occasion on which Hoyts had requested a
    stay in this action. At least twice previously, Hoyts has asked for
    -- and been denied -- stays of proceedings based on the pendency of
    the [Hoyts]{.underline} litigation. [See]{.underline},
    [e.g]{.underline}., Docket Nos. 20-21 & 87.

[^2]: ^?^ Due to the voluminous nature of the [Hoyts]{.underline}
    pleadings generated during the district court and appellate
    proceedings, this memorandum merely summarizes pleadings listed on
    the [Hoyts]{.underline} PACER docket sheets. Upon the Court's
    request, the United States will file complete copies of any
    referenced pleading.

[^3]: ^?^ The legal landscape surrounding Standard 4.33.3 has changed
    considerably since June 2002 when Hoyts and National filed their
    summary judgment papers. Since that time, every district court
    decision that followed the [Lara]{.underline} decision in whole or
    in part has been overturned on appeal. [See]{.underline} [Meineker
    v. Hoyts Cinemas Corp.]{.underline}, 216 F.Supp.2d 14 (N.D.N.Y.
    2002), [vacated and remanded]{.underline}, 69 Fed.Apx. 19, 2003 WL
    21510423 (2nd Cir. July 1, 2003); [United States v. Cinemark USA,
    Inc.]{.underline}, No. 1:99 CV-705 (N.D. Ohio Nov. 19, 2001),
    [rev'd]{.underline}, 348 F.3d 569 (6th Cir. 2003), [petition for
    cert. filed]{.underline}, 72 U.S.L.W. 3513 (U.S. Feb. 4, 2004) (No.
    03-1131); [Oregon Paralyzed Veterans of Am. v. Regal Cinemas,
    Inc.]{.underline}, 142 F.Supp.2d 1293 (2001), [rev'd and
    remanded]{.underline}, 339 F.3d 1126 (9th Cir. 2003), [petition for
    cert. filed]{.underline}, 72 U.S.L.W. 3310 (U.S. Oct. 27, 2003) (No.
    03-641).

[^4]: ^?^ For similar reasons, the Judge Young also concluded that
    Hoyts's and National's stadium-style theaters violated Standard
    4.33.3\'s integration mandate. [See]{.underline} 256 F. Supp.2d at
    88-89 ("Seats in a separate front section where no-one would sit
    willingly, given the superiority of the stadium section are neither
    'necessary' nor 'part of' the whole. The 'fixed seating plan,' in
    the case of stadium theaters, is the seating plan for the stadium
    section, the heart of the whole enterprise\[.\]")

[^5]: ^?^ While similar, the claims presented by the private defendants
    in this action cannot be considered "identical" to the claims
    presented by the United States in either the [Hoyts]{.underline}
    complaint or its [Meineker]{.underline} complaint-in-intervention.
    For example, the private plaintiffs' complaint alleges ADA
    violations not only with respect to the lack of wheelchair seating
    locations within the stadium sections of the theaters at the
    Crossgates Stadium 18 complex, but also the lack of appropriate
    companion seating locations and Hoyts's use of segregated "corrals"
    or "pens" in the four largest theaters at this complex.
    [See]{.underline} discussion [supra]{.underline} p. 2. The United
    States' complaints, by contrast, do not specifically raise these
    latter allegations. [See]{.underline} United States' Complaint In
    Intervention (filed Jan 30, 2004) (Docket \# 109) (Meineker
    complaint-in-intervention); Jacobs Aff., Ex. 1 ([Hoyts]{.underline}
    complaint).

[^6]: ^?^ By contrast, Congress has expressly provided in other federal
    statutes that the filing of an enforcement action by a public entity
    precludes independent actions by private citizens.
    [See]{.underline}, [e.g]{.underline}., Clean Water Act, 33 U.S.C. §
    1319(g)(6)(A)(ii) (private actions for civil penalties precluded if
    state or federal government "has commenced and is diligently
    processing" a similar action); Fair Labor Standards Act, 29 U.S.C. §
    216(b) (private enforcement rights expire upon suit by the Secretary
    of Labor); Resource Conservation and Recovery Act, 42 U.S.C. §
    6972(b)(1)(B) (preclusion or private actions under same
    circumstances as Clean Water Act).

[^7]: ^?^ As an exception to the general rule that non-parties cannot be
    bound by prior judgments in actions to which they are strangers,
    more expansive notions of privity -- often referred to as "virtual
    representation" -- hold that non-parties may nonetheless still be
    bound by such judgments under appropriate circumstances such as when
    the two actions involve identical issues and there exists a special
    legal relationship between the non-party and a party to the first
    action demonstrating that their respective interests are so closely
    aligned that it can be assumed that the party was in fact
    representing the legal interests of the non-party in the first
    action. [See]{.underline}, [e.g]{.underline}., [Doctor's Associates,
    Inc. v. Reinert & Duree, P.C.]{.underline}, 191 F.3d 297, 304-05
    (1999) (discussing virtual representation doctrine); [Mason Tenders
    Dist. Council Pension Fund v. Messera]{.underline}, 958 F. Supp.
    869, 885-86 (S.D.N.Y. 1997) (same).

[^8]: ^?^ Nor can Hoyts be heard to argue that the pendency of the
    [Hoyts]{.underline} appeals lessens the preclusive effect of Judge
    Young's discovery rulings. [See]{.underline}, [e.g]{.underline}.,
    [Huron Holding Corp. v. Lincoln Mine Operating Co.]{.underline}, 312
    U.S. 183, 189, 61 S. Ct. 513, 515 (1941) ("\[I\]n the federal courts
    the general rule has long been recognized that while appeal with
    proper supersedeas stays execution of the judgment, it does not -
    until and unless reversed - detract from its decisiveness and
    finality."); [Macfarlane v. Village of Scotia, New
    York]{.underline}, 86 F. Supp.2d 60, 65 (N.D.N.Y. 2000) ("Generally,
    the possibility of an appeal does not prevent application of the
    doctrine of collateral estoppel."); Charles A. Wright, et al., 18A
    [Federal Practice and Procedure]{.underline} § 4433 (2d ed. 2002).

[^9]: ^?^ The need to tread gingerly with respect to Hoyts's discovery
    requests is further underscored by the fact that Hoyts apparently
    intends to seek discovery of [only]{.underline} privileged materials
    from the United States during these remand proceedings. For example,
    in late 2003 -- before the United States was granted party status in
    this action \-- Hoyts served *subpoenas duces tecum* on both the
    Attorney General and the United States Attorney for the Northern
    District of New York that sought production of only documents listed
    on the United States' privilege logs generated during the
    [Hoyts]{.underline} litigation. [See]{.underline},
    [e.g]{.underline}., Jacobs Aff., Ex. 6