ARIZONA EX REL. GODDARD v. Harkins Amusement

• Decision Date: 30 April 2010
• Docket Number: No. 08-16075.,08-16075.
• Citation: 603 F.3d 666
• Parties: State of ARIZONA, ex rel. Terry GODDARD, the Attorney General, and The Civil Rights Division of the Arizona Department of Law, Plaintiffs-Appellants, and Frederick Lindstrom by and through his legal guardian, Rachel Lindstrom, and Larry Wanger, Plaintiff-Intervenors-Appellants. v. HARKINS AMUSEMENT ENTERPRISES, INC.; Harkins Enterprises Inc.; Harkins Camel View Theatres, Inc.; Harkins Theatres, Inc.; Harkins Centerpoint, Inc.; Harkins Shea Cinemas, LLC; Harkins Sedona Cinemas, LLC; Harkins Cinemas, LLC; Harkins Arizona Mills Cinemas, LLC; Harkins Metro Center Cinemas, LLC; Harkins Reel Deals, LLC; Harkins Phoenix Cinemas, LLC; Harkins Chandler Fashion Center Cinemas, LLC; Harkins Scottsdale 101 Cinemas, LLC; Harkins Yuma Palms, LLC; Harkins Tempe Marketplace, LLC; Harkins Administrative Services, Inc.; Red's Moviola I, LLC; Red's Moviola, Inc.; Harkins Spectrum, LLC; Harkins Casa Grande, LLC; Harkins Investments, LLC; Harkins Parke West, LLC; Harkins Santan Village, LLC; Harkins Tucson Spectrum, LLC; Harkins Chandler Crossroads, LLC; Harkins Norterra, LLC, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

603 F.3d 666

State of ARIZONA, ex rel. Terry GODDARD, the Attorney General, and The Civil Rights Division of the Arizona Department of Law, Plaintiffs-Appellants, and Frederick Lindstrom by and through his legal guardian, Rachel Lindstrom, and Larry Wanger, Plaintiff-Intervenors-Appellants. v. HARKINS AMUSEMENT ENTERPRISES, INC.; Harkins Enterprises Inc.; Harkins Camel View Theatres, Inc.; Harkins Theatres, Inc.; Harkins Centerpoint, Inc.; Harkins Shea Cinemas, LLC; Harkins Sedona Cinemas, LLC; Harkins Cinemas, LLC; Harkins Arizona Mills Cinemas, LLC; Harkins Metro Center Cinemas, LLC; Harkins Reel Deals, LLC; Harkins Phoenix Cinemas, LLC; Harkins Chandler Fashion Center Cinemas, LLC; Harkins Scottsdale 101 Cinemas, LLC; Harkins Yuma Palms, LLC; Harkins Tempe Marketplace, LLC; Harkins Administrative Services, Inc.; Red's Moviola I, LLC; Red's Moviola, Inc.; Harkins Spectrum, LLC; Harkins Casa Grande, LLC; Harkins Investments, LLC; Harkins Parke West, LLC; Harkins Santan Village, LLC; Harkins Tucson Spectrum, LLC; Harkins Chandler Crossroads, LLC; Harkins Norterra, LLC, Defendants-Appellees.

No. 08-16075.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2010.

Filed April 30, 2010.

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Rose A. Daly-Rooney and Cathleen M. Dooley, Assistant Attorneys General, Tucson, AZ, for the appellants.

Jose de Jesus V. Rico, Arizona Center for Disability Law, Tucson, AR, for the appellants-intervenors.

John J. Egbert, Esq., Jennings, Strouss & Salmon, P.L.C., Phoenix, AZ, and Richard Lustiger, General Counsel, Harkins Theatres, Scottsdale, AZ, for the appellees.

Brian East, Advocacy, Inc., Austin, TX; Linda M. Dardarian, Goldstein, Demchak, Baller, Borgen & Dardarian, Oakland, CA; John F. Stanton, Howrey LLP, Washington, D.C.; John F. Waldo, Washington State Communication Access Project, Bainbridge Island, WA; Marc P. Charmatz, National Association of the Deaf Law and Advocacy Center, Silver Spring, MD; Angela M. Miller, Attorney, Civil Rights Division, Department of Justice, Washington, D.C.; M. Brett Burns, Hunton & Williams LLP, San Francisco, CA; Steven John Fellman, GKG Law, PC, Washington, D.C., for the amici curiae.

Before: ALEX KOZINSKI, Chief Judge, PROCTER HUG, JR. and RICHARD R. CLIFTON, Circuit Judges.

HUG, Circuit Judge:

The State of Arizona and Plaintiff-Intervenors Frederick Lindstrom and Larry Wanger brought this suit under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and the Arizonans with Disabilities Act ("AzDA"), Ariz.Rev. Stat., §§ 41-1492-41-1492.11, to remedy what they allege are discriminatory accommodations at movie theaters owned by Harkins Amusement Enterprises, Inc. and its affiliates ("Harkins"). Plaintiffs contend that Harkins's failure to provide (1) open or closed captioning for hearing impaired patrons and (2) audio descriptions of a movie's visual elements for visually impaired patrons violates the ADA and the AzDA. The district court granted Harkins's motion to dismiss for failure to state a claim on the basis that the ADA and the AzDA do not require movie theaters to alter the content of their services. Because closed captioning and audio descriptions are correctly classified as "auxiliary aids and services" that a movie theater may be required to provide under the ADA, we conclude the district court erred in finding that these services are foreclosed as a matter of law.

I.

Plaintiff-Intervenor Frederick Lindstrom has hearing loss so severe that he cannot hear or discriminate speech. Because of his hearing loss, Lindstrom does not fully appreciate a movie's soundtrack. Lindstrom alleges that three technologies would allow him to more fully enjoy movies despite his hearing impairment.

The first two technologies employ open captioning, a technique that displays captions on a movie screen for an entire audience. One type of open captioning is achieved by engraving text onto each individual frame of a film. Only a limited number of films are engraved with captions. A second method of open captioning uses open caption projection systems, which project captions through a separate projector onto a movie screen. Movie theaters may turn open captioning projection systems on or off, depending on whether a patron has requested captions.

The third technology employs closed captioning, a technique that displays captions to individual viewers using a seat-based captioning device. One brand of seat-based captioning is Rear Window Captioning, which displays captions from a computer disc that is synchronized with a movie. As a movie appears on a theater's screen, captions are transmitted to an LED data panel installed on the rear wall of a theater, where the text is reversed. Patrons use portable, clear reflector panels that make the captions appear superimposed on or beneath the movie screen. There are other seat-based captioning systems as well, such as wearable caption displays.

Major movie studios distribute a significant number of wide-release movies with captions for use with Rear Window Captioning and open caption projection systems. However, accessibility to these services is limited to theaters that have equipment for Rear Window Captioning or open caption projection systems.

Plaintiff-Intervenor Larry Wanger is totally blind in his right eye and has corrected visual acuity of less than 20/400 in his left eye. Because of his impairment, Wanger cannot see the visual aspects of a movie. Wanger alleges that a technology known as "descriptive narration" would allow him to appreciate visual aspects of a movie by using a headset. Descriptive narration enables people to hear information about key visual aspects of a movie through descriptions of scenery, facial expressions, costumes, action settings, and scene changes during natural pauses in dialogue. Major movie studios distribute wide-release movies with descriptive narration capability, but accessibility to this service is limited to theaters that have equipment for audio descriptions.

Harkins owns and operates 21 theaters with 262 auditoriums in Arizona. Harkins shows movies with engraved open captioning, but only at limited times at two theater locations. None of Harkins's Arizona theaters have equipment for descriptive narration.

In August 2005, Larry Wanger visited Harkins's North Valley 16 Theaters to see a movie with descriptive narration. A Harkins employee informed him that the theater did not have descriptive narration. On December 14, 2005, Rachel Lindstrom, Frederick Lindstrom's mother, called the box office of North Valley 16 Theaters to find a captioned showing of King Kong. Ms. Lindstrom was told that there were no open-captioned showings of King Kong or auxiliary aids to display closed captioning at any of the theater's auditoriums.

Larry Wanger and Rachel Lindstrom, on behalf of her son, filed complaints of public accommodation discrimination with Arizona's Civil Rights Division. After an investigation, the Division found that there was reasonable cause to believe that Harkins discriminated against Frederick Lindstrom and Larry Wanger by denying full and equal enjoyment of Harkins's services in violation of the AzDA.

The State of Arizona subsequently filed suit in Arizona Superior Court alleging violations of the AzDA on behalf of Frederick Lindstrom, Larry Wanger, and a putative class of similarly situated persons. Lindstrom and Wanger also joined the suit as plaintiff-intervenors alleging violations of the ADA and AzDA. Harkins removed the case to the United States District Court for the District of Arizona and moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The district court granted the motion in a published March 28, 2008, order, Arizona v. Harkins Amusement Enterprises, Inc., 548 F.Supp.2d 723 (D.Ariz.2008), which Plaintiffs now appeal.

II.

We review de novo the district court's dismissal for failure to state a claim. Siracusano v. Matrixx Initiatives, Inc., 585 F.3d 1167, 1177 (9th Cir.2009). We accept the Plaintiffs' allegations as true and construe them in the light most favorable to Plaintiffs. Id. Dismissal is inappropriate unless Plaintiffs' complaint fails to state a claim for relief that is plausible on its face. Id.

A. Americans with Disabilities Act

Congress enacted the ADA "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities...." 42 U.S.C. § 12101(b)(2). Title III of the ADA prohibits discrimination by public accommodations, prescribing generally that

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a). To prevail on a discrimination claim under Title III, a plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability. Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). The parties do not dispute that Plaintiffs Lindstrom and Wanger are disabled or that Harkins owns a place of public accommodation. This appeal centers on whether Plaintiffs have plausibly alleged that Harkins discriminated against them on account of their disabilities.

Title 42 U.S.C. § 12182(b)(2)(A)(iii) provides that discrimination by public accommodations includes "a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services,...