Johnston et al v. AC JV, LLC, et al, No. 2:2018cv00011 - Document 37 (W.D. Wash. 2018)

Court Description: ORDER granting Defendant Fathom's 27 Motion for Judgment on the Pleadings; granting Defendants AMC Entertainment Inc, Cinemark Holdings Inc, Regal Entertainment Group's 18 Motion to Dismiss for Failure to State a Claim. Signed by Judge Marsha J. Pechman. (SWT)

Download PDF

7349 (Dec. 2, 2016) 13 (emphasis added); Id. at 87381 (the rule does not “require a movie theater to independently add 14 such [captioning] features to a movie that is not distributed with such features.”). 15 Despite these unambiguous directives, Plaintiffs claim that the regulations specify what a 16 movie theater must do when captions are provided, but do not address the situation where they 17 are not. (Dkt. No. 29 at 13-15.) This interpretation is unsupported. The DOJ’s commentary— 18 which is entirely consistent with the regulations—expressly states that the Movie Theater 19 Operators are required to provide captions only when “they exhibit a digital movie that is 20 distributed with such features.” 28 C.F.R. § 36.303(g)(2). Any other interpretation would 21 improperly render the DOJ’s commentary meaningless. See, e.g., Arizona v. Harkins 22 Amusement Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010); Fortyune v. City of Lomia, 766 F.3d 23 1098 (9th Cir. 2014). 24 ORDER GRANTING MOTION TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS - 5 1 In Harkins, the Ninth Circuit concluded that, where the DOJ’s commentary expressly 2 stated that “[m]ovie theaters are not required . . . to present open-captioned films,” open captions 3 were not required under the ADA as a matter of law. Id. at 672. The court explained that 4 entities “should be able to rely on the plain import of the DOJ’s commentary until it is revised,” 5 and that it must “defer to an agency’s interpretation of its own regulation unless an ‘alternative 6 reading is compelled by the regulation’s plan language or by other indications of [the agency’s] 7 intent at the time of the regulation’s promulgation.” Id. at 672 & n.2 (citing Thomas Jefferson 8 University v. Shalala, 512 U.S. 504, 512 (1994)). 9 Similarly, in Fortyune, the Ninth Circuit concluded that the ADA, the relevant 10 regulations, and the DOJ’s commentary all indicated that public entities must make government 11 functions reasonably accessible to disabled persons, irrespective of whether the DOJ provided 12 technical specifications for the particular types of facilities involved. 766 F.3d at 1102-05. The 13 court explained that this interpretation was consistent with the DOJ’s interpretation, which it 14 found was “entitled to controlling weight unless it is plainly erroneous or inconsistent with the 15 regulation.” Id. at 1104 (citation omitted). 16 As the regulations and commentary both are consistent with the ADA and WLAD, 17 deference to these sources would not “eliminate statutory requirements.” Cf. Hunsaker v. Contra 18 Costa County, 149 F.3d 1041, 1043 (9th Cir. 1998). Title III of the ADA requires places of 19 public accommodation to “take such steps as may be necessary to ensure that no individual with 20 a disability is excluded, denied services, segregated or otherwise treated differently than other 21 individuals because of the absence of auxiliary aids and services,” unless doing so would 22 “fundamentally alter the nature of the good, service, facility, privilege, advantage, or 23 accommodation being offered or would result in an undue burden.” 42 U.S.C. § 24 ORDER GRANTING MOTION TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS - 6 1 12182(b)(1)(A)(i)-(ii), (b)(2)(A)(iii). Title III does not require “provision of different goods or 2 services.” Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000). 3 The WLAD is no different in this respect, and requires places of public accommodation to make 4 “reasonable accommodations,” meaning “action, reasonably possible in the circumstances, to 5 make the regular service of a place of public accommodation accessible to persons who 6 otherwise could not use or fully enjoy the services because of the person’s sensory, mental, or 7 physical disability.” WAC 162-26-040(2). 8 9 Under both the ADA and the WLAD, the Movie Theater Operators “must take action that is reasonably possible to make their screenings, for which captions are provided by film 10 distributors, understandable to deaf and hard-of-hearing patrons.” Wash. State Commc’n Access 11 Project v. Regal Cinemas, Inc., 173 Wn. App. 174, 195 (2013) (emphasis added). They are not, 12 however, required to create captions where they are not provided by film distributors, as there is 13 no indication that it would be “reasonably possible” for them to do so. Therefore, the Court GRANTS the Movie Theater Operators’ Motion to Dismiss. 14 15 16 III. Motion for Judgment on the Pleadings Fathom contends that the ADA and WLAD do not apply to it, such that Plaintiffs’ claims 17 against it fail as a matter of law. (Dkt. No. 27 at 4.) The ADA applies only to an entity that 18 “owns, leases (or leases to), or operates a place of public accommodation.” Lonberg v. Sanborn 19 Theaters Inc., 259 F.3d 1029, 1033 (9th Cir. 2001); see also Karczewski v. DCH Mission Valley 20 LLC, 862 F.3d 1006, 1010 (9th Cir. 2017) (“To prevail on a claim under [Title III], Plaintiff 21 must establish that . . . the defendant is a private entity that owns, leases, or operates a place of 22 public accommodation.”). Similarly, the WLAD applies only where “the defendant’s business or 23 establishment is a place of public accommodation.” Fell v. Spokane Transit Auth., 128 Wn.2d 24 ORDER GRANTING MOTION TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS - 7 1 618, 637 (1996). The phrase “places of public accommodation” speaks only “to places and 2 facilities.” Id. at 638. 3 Plaintiffs effectively concede that Fathom does not own, lease, or operate any movie 4 theaters and that it is not a “place of public accommodation” within the meaning of the ADA and 5 WLAD. (Dkt. No. 28.) Nevertheless, they contend that because Fathom is a joint venture of 6 Regal, AMC, and Cinemark and the relationship between the Movie Theater Operators and 7 Fathom is “far from clear,” it is “unknown” whether Fathom may be a necessary party under 8 Rule 19. (Id. at 3-4.) This is not enough. Plaintiffs must offer more than mere speculation and a 9 “sheer possibility” of liability to support their claim against Fathom, Iqbal, 556 U.S. at 678, and 10 11 their “sue first, ask questions later” approach cannot be condoned. Therefore, the Court GRANTS Fathom’s Motion for Judgment on the Pleadings. 12 13 Conclusion While the Court is sympathetic to and takes seriously the issues raised by Plaintiffs, it 14 must find that Plaintiffs’ ADA and WLAD claims fail as a matter of law. Therefore, the Court 15 GRANTS the Movie Theater Operators’ Motion to Dismiss and GRANTS Fathom’s Motion for 16 Judgment on the Pleadings. 17 The clerk is ordered to provide copies of this order to all counsel. 18 Dated August 9, 2018. 20 A 21 Marsha J. Pechman United States District Judge 19 22 23 24 ORDER GRANTING MOTION TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS - 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.