Winner v. Six Flags Entertainment Corporation

REPLY BRIEF to Opposition to Motion

D.N.J.September 16, 2016

Sean J. Kirby James R. Hays (admitted pro hac vice) SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 30 Rockefeller Plaza New York, New York 10112 Telephone: (212) 653-8700 Facsimile: (212) 653-8701 Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JACQUELINE WINNER, Plaintiff, vs. SIX FLAGS ENTERTAINMENT CORPORATION, Defendant. Civil Action No. 15-cv-00103-PGS-TJB Motion Date: September 19, 2016 Document Filed Electronically Oral Argument Requested DEFENDANT SIX FLAGS ENTERTAINMENT CORPORATION’S REPLY BRIEF IN FURTHER SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 1 of 20 PageID: 1116 -i- TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 RELEVANT FACTUAL BACKGROUND .............................................................. 4 ARGUMENT ............................................................................................................. 5 A. Plaintiff Overstates and Misstates the Law Regarding Voluntary Cessation of a Challenged Practice and Cannot Reasonably Refute that Her Claims Are Moot.................................................................... 5 B. Despite Plaintiff’s Rank Mischaracterization of the Record, No Issues of Material Fact Exist Regarding The Mootness of Plaintiff’s Claims ............................................................................................................ 10 C. Plaintiff Cannot Prevail on Her ADA or NJLAD Claims Because She Cannot Establish that She Was Discriminated Against on Account of Her Disability in the Full and Equal Enjoyment of the Goods and Services Offered by Defendant ................................................... 13 D. If Plaintiff’s ADA Claims Are Dismissed, the Court Should Decline to Exercise Supplemental Jurisdiction ............................................. 14 CONCLUSION ........................................................................................................ 15 Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 2 of 20 PageID: 1117 -ii- TABLE OF AUTHORITIES Page(s) Federal Cases A.S. v. Harrison Twp. Bd. of Educ. 66 F. Supp. 3d 539, 544-47 (D.N.J. 2014) ......................................................... 10 Already, LLC v. Nike, Inc. 133 S. Ct. 721 (2013) ............................................................................................ 9 City News and Novelty Inc. v. City of Wakesha 531 U.S. 278 (2000) .............................................................................................. 9 Friends of the Earth, Inc. v. Laidlaw Envt’l Servs (TOC), Inc. 528 U.S. 167 (2000) .................................................................................. 1, 5, 6, 7 Hedges v. Musco 204 F.3d 109 (3d Cir. 2000) ............................................................................... 15 Houston v. 7-Eleven, Inc. No. 13–60004–Civ., 2014 WL 351970 (S.D. Fla. Jan. 31, 2014) ........................ 8 John T. v. Del. Cnty. Intermediate Unit 318 F.3d 545 (3d Cir. 2003) ................................................................................. 5 Med. Soc’y of N.J. v. Herr 191 F. Supp. 2d 574 (D.N.J. 2002) ..................................................................... 10 Schwinge v. Deptford Twp. Bd. of Educ. No. 09-5964 (RBK/JS), 2011 WL 3240449 (D.N.J. July 28, 2011) .................. 15 Stan v. Wal-Mart Stores, Inc. 111 F.Supp. 2d 119 (N.D.N.Y. 2000) ................................................................. 14 Thomas v. Branch Banking & Trust Co. 32 F. Supp. 3d 1266, 1271 (N.D. Ga. 2014) ..................................................... 8, 9 Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 3 of 20 PageID: 1118 -iii- Statutes Local Rule 56.1 .......................................................................................................... 5 N.J.A.C. § 5:14A-9.8(a) ............................................................................................. 8 N.J.A.C. § 5:14A-9.34 ............................................................................................... 8 Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 4 of 20 PageID: 1119 -1- Defendant Six Flags Entertainment Corporation (“Six Flags” or “Defendant”), respectfully submits this Reply Brief in further support of its motion (“Motion”) for an Order granting summary judgment in its favor and dismissing the Complaint (the “Complaint”) filed by plaintiff Jacqueline Winner (“Plaintiff”). As set forth below, there are no material issues of fact in dispute, and Six Flags is entitled to judgment as a matter of law with respect to each of Plaintiff’s claims. PRELIMINARY STATEMENT In its Brief in support of the Motion (the “Moving Brief”), Six Flags clearly established that there are no genuine issues of material fact requiring a trial. As such, Six Flags submits this Reply Brief only to correct the most egregious of Plaintiff’s misrepresentations of the record and relevant law. As explained in more detail below and in the Moving Brief, the Court should dismiss the claims in the Complaint against Six Flags and enter summary judgment in Six Flags’ favor. Plaintiff does not readily dispute that Six Flags’ policies and procedures render Plaintiff’s ADA claim and the injunctive relief portion of her NJLAD claim moot. Instead, Plaintiff’s primary argument in her brief in opposition to the Motion (the “Opposition Brief”) is that the “voluntary cessation” analysis from the Supreme Court’s decision in Friends of the Earth, Inc. v. Laidlaw Envt’l Servs (TOC), Inc., 528 U.S. 167, 189 (2000), warrants a denial of Six Flags’ mootness argument. Plaintiff is incorrect for a number of reasons. Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 5 of 20 PageID: 1120 -2- Chiefly, Plaintiff’s argument fails because Six Flags’ has not “ceas[ed] . . . a challenged practice.” Rather, Plaintiff has always been permitted to ride El Toro pursuant to the ridership restrictions for El Toro. Likewise, instead, of “ceasing a challenged practice,” Six Flags has taken steps to ensure that Plaintiff’s satisfaction of El Toro’s ridership requirements will not be questioned in the future. Stated simply, and as logic dictates, since Six Flags has not “ceas[ed] . . . a challenged practice,” the voluntary cessation doctrine is not applicable to this matter. Furthermore, even if the “voluntary cessation” test were applicable to this action, Plaintiff has overstated the test and has ignored certain key features of the test. Indeed, the bulk of Plaintiff’s Opposition Brief centers on her argument that since it is not “absolutely clear that the events could not reoccur,” her claims cannot be dismissed as moot. Plaintiff goes so far as to repeat this truncated “absolutely clear” line nearly 20 times throughout the Opposition Brief. However, the problem with Plaintiff’s argument is that she fails to adequately address (or perhaps intentionally ignores) a key element of the test – that “it [is] absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur.” Applying the complete test to Six Flags’ ridership restrictions, policies and procedures, Plaintiff is guaranteed access to El Toro and, as a result, there is zero possibility, let alone a “reasonable” expectation, that Plaintiff would be denied access to El Toro in the future. Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 6 of 20 PageID: 1121 -3- In addition to overstating the “voluntary cessation” standard, Plaintiff also repeatedly misstates the evidentiary record in arguing that a material issue of fact exists with respect to Six Flags’ mootness argument. For example, more than 20 times in the Opposition Brief, Plaintiff argues that Six Flags did not train its employees on how to apply the ridership restrictions and evaluate guests. These statements are simply not true. In fact, Six Flags’ witnesses testified that Six Flags’ ride attendants and ride operators are trained to visually observe each guest on El Toro to ensure that they meet the ridership requirement of having three fully former fingers that can grip the grab bar (Dimmick 50-52; Gardener 73-74), and Six Flags’ ride attendants are trained that a “full finger” is a finger that is “ha[s] joints that are able to bend and grab onto the grab bar.” (Gardener 73). Likewise, Plaintiff argues more than 10 times in the Opposition Brief that Six Flags has never trained or re-trained its ride attendants, or any other employees at the Park, as to how to conduct any objective individualized assessment of whether a disabled guest meets its ridership requirements, because Six Flags does not utilize a grip strength tester. Once again, Plaintiff has misstated the record, as each of the ride attendants who were deposed testified that, while a grip strength tester is not used, they did conduct an individualized assessment of Plaintiff (and every other guest) upon boarding El Toro and prior to the start of the ride, and that such individualized assessment was consistent with the training they received. Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 7 of 20 PageID: 1122 -4- Plaintiff also fails to adequately refute Six Flags’ argument that Plaintiff was not discriminated against in the full and equal enjoyment of the goods and services offered by the Park. Indeed, Plaintiff argues, in conclusory fashion, that “plaintiff has laid out in full all the facts leading to the conclusion that defendant discriminated against plaintiff on account of her disability.” (Opposition Brief at p. 24). This conclusory statement, however, does not explain how Plaintiff could be deemed to have been discriminated against on account of her disability in the full and equal enjoyment of the good and services offered by the Park where Plaintiff was ultimately permitted to ride El Toro on the very same day of her visit. Finally, Plaintiff argues that, if her federal ADA claim is dismissed, the Court should still maintain jurisdiction over Plaintiff’s New Jersey state law NJLAD claim because of “judicial economy, convenience, and fairness to the litigants.” (Opposition Brief at pp. 25-27). This argument by Plaintiff, however, constitutes the exception and not the rule regarding supplemental jurisdiction. As such, if Plaintiff’s ADA claim is dismissed, her state law claims under the NJLAD should likewise be dismissed due to a lack of supplemental jurisdiction. RELEVANT FACTUAL BACKGROUND Six Flags incorporates by reference the statement of facts set forth in the “Relevant Factual Background” section of its Brief in Support of its Motion for Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 8 of 20 PageID: 1123 -5- Summary Judgment (Dkt. No. 27-18), and its Local Rule 56.1 Statement of Undisputed Facts which was filed in connection therewith (Dkt. No. 27-1). ARGUMENT A. Plaintiff Overstates and Misstates the Law Regarding Voluntary Cessation of a Challenged Practice and Cannot Reasonably Refute that Her Claims Are Moot Since Plaintiff is unable to credibly dispute the fact that her ADA claim and NJLAD injunctive relief claim are moot, Plaintiff, instead, argues that Six Flags’ purported “voluntary cessation” of a challenged practice prevents dismissal on mootness grounds. (Opposition at pp. 5-16). In making this argument, however, Plaintiff has grossly overstated the law on the voluntary cessation doctrine and has ignored, or outright misstated, the record. Stated simply, Plaintiff’s last ditch effort to cloud the outright mootness of her claims fails as a matter of law. As an initial matter, Plaintiff argues that pursuant to Friends of the Earth, 528 U.S. at 189 – a case involving the Clean Water Act and not the ADA – absent a consent decree from the Court stating that Plaintiff can ride El Toro, the “voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.”1 Plaintiff’s reliance on the Friends 1 Since it cannot honestly be disputed that there is zero chance that Plaintiff, if she revisited the Park, would be barred from riding El Toro, we assume the specious claim that a consent decree or judgment is warranted is solely related to plaintiff’s claim for attorneys’ fees as a prevailing party. See, e.g., John T. v. Del. Cnty. (footnote continued) Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 9 of 20 PageID: 1124 -6- of the Earth decision is misleading and misplaced given the undisputed facts of this action. This is because Six Flags’ has not “ceas[ed] . . . a challenged practice.” In fact, Plaintiff has always been permitted to ride El Toro in accordance with the ridership restrictions for El Toro. (Moving Brief at pp. 16-19). Instead of “ceasing a challenged practice,” Six Flags has instead taken additional steps to further ensure that Plaintiff’s satisfaction of the ridership requirements for El Toro will not be questioned in the future. These additional steps include the implementation of the Attractions Access Pass pre-screening program, and adding Plaintiff to its Attractions Access Pass database. Finally, Six Flags’ implementation of a safety harness on El Toro, a harness which Plaintiff does not need to use since she meets the ridership requirements for the ride, further ensures that Plaintiff will never be denied access to El Toro in the future. Stated simply, since Six Flags did not have to “cease a challenged practice” to guarantee Plaintiff access to El Toro, Plaintiff’s reliance on the Friends of the Earth decision should be given no weight. Even assuming arguendo that the Friends of the Earth “voluntary cessation” test were applicable to this action, Plaintiff has overstated the test and has ignored certain key features of the test. Indeed, the bulk of Plaintiff’s Opposition Brief Intermediate Unit, 318 F.3d 545, 555-56 (3d Cir. 2003) (recognizing that attorneys’ fees are only recoverable under the ADA as a prevailing party where “where the plaintiff ha[d] received a judgment on the merits ... or obtained a court- ordered consent decree”) (citations omitted). Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 10 of 20 PageID: 1125 -7- centers on her argument that since it is not “absolutely clear that the events could not reoccur,” (i.e., that Six Flags’ will not revoke the policies that it has put in place which enable Plaintiff to ride El Toro), her claims cannot be dismissed as moot. (Opposition at pp. 5-16). In fact, Plaintiff repeated this “absolutely clear” line nearly 20 times throughout the Opposition Brief. (See id.). The problem with Plaintiff’s argument is that she fails to adequately address (or perhaps intentionally ignores) a key element of the test – that “it [is] absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189 (emphasis added). Here, given Six Flags’ current ridership restrictions, its implementation of the Attractions Access Program, its addition of Plaintiff to the Attractions Access Program’s database, and its implementation of the safety harness, Plaintiff is guaranteed access to El Toro and, as a result, there is zero possibility, let alone a “reasonable” expectation, that Plaintiff would be denied access to El Toro in the future. Furthermore, Plaintiff’s rank speculation that Six Flags may in the future decide to reverse its policies is not supported by the record. In fact, as discussed fully in the Moving Brief at pages 16-20, there are four independent reasons that Plaintiff will not be denied access to El Toro in the future – reasons which will not “reasonably” be reversed by Six Flags: • Plaintiff admittedly already satisfies the ridership restrictions for El Toro - she possesses one arm with three fingers that are able to grip, as well as Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 11 of 20 PageID: 1126 -8- two functioning legs. (Complaint at ¶¶ 20, 22; Kirby Decl., Ex. F at pp. 4-5). Since these ridership restrictions are set by the ride manufacturer, and since Six Flags is obligated under New Jersey law to implement the restrictions of its ride manufacturers, there is zero chance that Six Flags will changes its ridership restrictions in the future to exclude Plaintiff. See N.J.A.C. § 5:14A-9.8(a), N.J.A.C. § 5:14A-9.34. • Starting in March 2016, Six Flags implemented an Accessibility Access Program in which guests can be pre-screened at the Ride Information Center to determine which rides a guest meets the ridership requirements for. Not only is this exact pre-screening procedure that Plaintiff is seeking in this action, is defies logic that Six Flags would go through the expense of researching and implementing this program (including the cost of changing the accessibility guide and training Ride Information Center employees) just to change its policy in the future. See Houston v. 7-Eleven, Inc., No. 13–60004–Civ., 2014 WL 351970, at *3 (S.D. Fla. Jan. 31, 2014) (finding ADA claims moot and “reasonable expectation” test satisfied where “[t]here is zero chance of [defendant] spending money to undo the . . . modifications it just paid $30,000 to implement.”); Thomas v. Branch Banking & Trust Co., 32 F. Supp. 3d 1266, 1271 (N.D. Ga. 2014) (same).2 • Six Flags pre-loaded Ms. Winner into the Attractions Access Program database, so as to guarantee that she will receive an Attractions Access Pass that indicates that she meets the ridership requirements for El Toro. 2 While Leonard Turtora testified that, in addition to the ongoing enhancement of Six Flags’ policies and procedures, one of the reasons the Attractions Access Program was implemented was “as part of this case,” such testimony does not support Plaintiff’s “voluntary cessation” argument. (Opposition Brief at 9-10). In fact, as detailed above, Six Flags did not cease any programs, rather it merely enhanced already existing policies – policies under which Plaintiff is already permitted to ride El Toro. (See supra at p. 6). Furthermore, given the cost that Six Flags’ incurred in implanting the Attractions Access Pass Program, it would make no sense for Six Flags to have gone through the expense of researching and implementing this program (including the cost of changing the accessibility guide and training Ride Information Center employees) only to change its policy in the future. See Houston, 2014 WL 351970, at *3; Thomas, 32 F. Supp. 3d at 1271. Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 12 of 20 PageID: 1127 -9- Again, given the cost associated with implementing the Attractions Access Pass program, it makes little sense that Six Flags’ would cancel the program and/or remove Plaintiff from the database. See id. • As of October 1, 2016, Six Flags will have implemented a safety harness on El Toro – thereby further guaranteeing access for Plaintiff. In addition to the cost of designing, creating, and implementing the harness, Six Flags created the harness pursuant to a settlement agreement that it entered into to resolve the Masci v. Six Flags litigation. Stated simply, given the cost of creating the vest and that it was implemented pursuant to a settlement agreement, there is zero possibility that Six Flags will reverse its vest policy in the future. Finally, it should be noted that each of the cases cited by Plaintiff to support her argument regarding “voluntary cessation” are readily distinguishable because not one case actually involves claims of mootness under the ADA.3 In fact, the cases cited by Plaintiff concern a wide variety of statutes (such as the Clean Water Act and Fair Housing Act), claims (such as trademark infringement), and even Constitutional claims – statutes and claims which, needless to say, have vastly different legal requirements and remedies. Moreover, if Plaintiff were to have actually cited cases involving the ADA, she would have found that courts throughout the country, including the District of New Jersey, have found ADA claims to be moot, despite applying the voluntary cessation test, and even where a 3 The City News and Novelty Inc. v. City of Wakesha, 531 U.S. 278 (2000) and Already, LLC v. Nike, Inc., 133 S. Ct. 721 (2013), cases cited by Plaintiff do not support Plaintiff’s argument at all because the Supreme Court upheld the mootness arguments in those cases. Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 13 of 20 PageID: 1128 -10- consent order or judgment was not entered. See, e.g., A.S. v. Harrison Twp. Bd. of Educ., 66 F. Supp. 3d 539, 544-47 (D.N.J. 2014); Med. Soc’y of N.J. v. Herr, 191 F. Supp. 2d 574, 581-82 (D.N.J. 2002). Accordingly, since Plaintiff’s ADA claim and claim for injunctive relief under the NJLAD are indisputably moot, and since the “voluntary cessation” analysis is inapplicable to the facts of this matter, Plaintiff’s ADA claim and claim for injunctive relief under the NJLAD should be dismissed. B. Despite Plaintiff’s Rank Mischaracterization of the Record, No Issues of Material Fact Exist Regarding The Mootness of Plaintiff’s Claims Plaintiff claims that there are a number of genuine issues of material fact which would preclude summary judgment on mootness grounds. Plaintiff is incorrect and has grossly misstated the record in pursuing this argument. For example, Plaintiff argues that “defendant has never put into place any standards or methodology to actually assess whether plaintiff meets its ridership requirements.” (Opposition Brief at p. 17). This statement is directly refuted by the deposition testimony in this action. In fact, Six Flags’ witnesses testified that Six Flags’ ride attendants and ride operators are trained to visually observe each guest on El Toro to ensure that they meet the ridership requirement of having three fully formed fingers that can grip the grab bar, (Dimmick 50-51; Gardener 73-74), and that Six Flags’ ride attendants are trained that a “full finger” is a finger that is “ha[s] joints that are able to bend and grab onto the grab bar.” (Gardener 73). Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 14 of 20 PageID: 1129 -11- Given this testimony, it is clear that Six Flags’ ride attendants and ride operators are trained in the ridership restrictions and how to implement such restrictions when assessing whether Park guests satisfy such restrictions.4 Similarly, Plaintiff argues that “defendant has never trained or re-trained its ride attendants, or any other employees at the park, as to how to conduct any objective ‘individualized assessment’ of whether a disabled guest . . . meets its ridership requirements.” (Opposition Brief at pp. 19-20). Once again, Plaintiff has misstated the record. Indeed, each of the ride attendants who were deposed testified that they not only conducted an individualized assessment of Plaintiff (and every other guest) during the boarding process for El Toro, but that such individualized assessment was consistent with the training they received from Six Flags. (Gifford 15, 19, 22-25; Dimmick 49-51). For instance, each ride attendant for El Toro is trained on the ridership requirements for the ride (which, as discussed above, are set by the ride manufacturer) – one fully formed arm with three fingers that can grip, and two fully formed and functioning legs. (Turtora Decl. ¶ 11, Ex. A at p. 12; Gifford 24; Dimmick 50). Since the implementation of these ridership restrictions require ride attendants to observe and count the limbs of 4 The specious nature of plaintiff’s lack of training argument is further highlighted by the uncontroverted evidence that, with the implementation of the Accessibility Access Program, the pre-loading of plaintiff into the Accessibility Access Program database, and the to-be implementation of the safety harness, her ability to ride El Toro is guaranteed. Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 15 of 20 PageID: 1130 -12- each rider, – the ride attendants observe and count the limbs of each rider before and after the guests board the train. (Gifford 19, Dimmick 50-51). Pursuant to the training provided to the ride attendants and for the safety of all guests, if there is any question as to whether a guest meets the ridership restriction, the guest is asked to disembark the ride, so an area supervisor or manager can conduct a further assessment of the guest and make a final determination as to whether they meet the ridership requirements. (Turtora Decl. ¶ 21). In short, the ride evaluation process consists of an individualized assessment because each and every guest is individually observed by the ride attendants, and in some cases an area supervisor or manager, before the ride disembarks to ensure that the guest has the requisite number of limbs to ride. Finally, Plaintiff argues that “there is no employee at the Ride Information Center trained to do any objective assessment of whether a disabled individual such as Plaintiff actually meets defendants ridership requirements.” (Opposition Brief at p. 21). Consistent with Plaintiff’s arguments through the Opposition Brief, Plaintiff once again misstates the record. In fact, in implementing its Attractions Access Pass program, the employees in Six Flags’ Ride Information Center go through rides training. (Turtora Decl. ¶ 29). As detailed above, such ride training covers, among other things, the ridership requirements and how to implement such Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 16 of 20 PageID: 1131 -13- requirements. (See supra at pp. 11-12). Given such training, Plaintiff’s argument to the contrary is clearly without merit.5 Accordingly, since none of Plaintiff’s misrepresentations of the record give rise to a disputed issue of material fact, Plaintiff’s ADA claim and the injunctive relief portion of her NJLAD claim should be dismissed as moot. C. Plaintiff Cannot Prevail on Her ADA or NJLAD Claims Because She Cannot Establish that She Was Discriminated Against on Account of Her Disability in the Full and Equal Enjoyment of the Goods and Services Offered by Defendant Plaintiff argues, in conclusory fashion, that “plaintiff has laid out in full all the facts leading to the conclusion that defendant discriminated against plaintiff on account of her disability.” (Opposition Brief at p. 24). This conclusory statement, however, fails to explain how Plaintiff could be deemed to have been discriminated against on account of her disability in the full and equal enjoyment of the good and services offered by the Park where Plaintiff was ultimately permitted to ride El Toro on the very same day of her visit. Indeed, it belies logic that Plaintiff is claiming discrimination on account of having been temporarily removed from El Toro for further evaluation by a 5 Plaintiff’s near obsession with “grip strength testing” is misplaced and is but a thinly veiled effort at misdirection. All witnesses testified with respect to the “three fully formed fingers that can grip” requirement that they are trained that this requirement is met when the finger has joints that are able to bend and grab onto the grab bar. (Gardener 73-74; Dimmick 50-51). Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 17 of 20 PageID: 1132 -14- supervisor where, after the supervisor’s evaluation, Plaintiff was informed that she met the ridership requirements and was permitted to ride El Toro. Stated differently, Plaintiff was not denied access to El Toro on June 9, 2014 because of her disability instead, in accordance with Six Flags’ policy and training, she was temporarily removed for further evaluation and was informed that she met the ridership restrictions.6 Given these undisputed facts, no discrimination occurred because Plaintiff was not ultimately denied access to El Toro on June 9, 2014 and, as a result, Six Flags is entitled to summary judgment on Plaintiff’s ADA and NJLAD claims. D. If Plaintiff’s ADA Claims Are Dismissed, the Court Should Decline to Exercise Supplemental Jurisdiction Finally, Plaintiff argues that, if her federal ADA claim is dismissed, the Court should still maintain jurisdiction over Plaintiff’s New Jersey state law NJLAD claim because of “judicial economy, convenience, and fairness to the litigants.” (Opposition Brief at pp. 25-27). While courts in this district have, from time-to-time, exercised their discretion to maintain jurisdiction of state law claims after the dismissal of federal claims, such cases appear to be the exception and not 6 Like the plaintiff in Stan v. Wal-Mart Stores, Inc., 111 F.Supp. 2d 119, 122-23, 126-27 (N.D.N.Y. 2000), who was temporarily denied access to the store with her service animal, Plaintiff in the instant action, after meeting with an Area Supervisor, was advised that she met the eligibility requirements and, as in the Stan matter, was immediately offered access. Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 18 of 20 PageID: 1133 -15- the rule. See Schwinge v. Deptford Twp. Bd. of Educ., No. 09-5964 (RBK/JS), 2011 WL 3240449, at *2 (D.N.J. July 28, 2011) (finding that “[i]n the usual case,” supplemental jurisdiction will be declined when “all federal-law claims are eliminated before trial, [because] the balance of factors to be considered . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.”); Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (“This Court has recognized that, where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendant state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.”) (internal quotation marks omitted). Here, subject matter jurisdiction in this matter is premised upon a federal question – the ADA. (Complaint at ¶ 4). In light of the well-established case law in the Third Circuit, if the Court dismisses Plaintiff’s ADA claim under Rule 12(b)(1), Plaintiff’s remaining NJLAD claim should also be dismissed. CONCLUSION For the reasons set forth above and in the Moving Brief, Six Flags’ Motion should be granted in all respects, Plaintiff’s ADA and NJLAD claims should be dismissed with prejudice, and Six Flags should be provided such other and further relief, including attorneys’ fees, and costs as this Court deems just and proper. Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 19 of 20 PageID: 1134 -16- Dated: New York, NY September 16, 2016 Respectfully submitted, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By: s/ Sean J. Kirby Sean J. Kirby 30 Rockefeller Plaza New York, New York 10112 Attorneys for Defendant Case 3:15-cv-00103-PGS-TJB Document 32 Filed 09/16/16 Page 20 of 20 PageID: 1135 -1- Sean J. Kirby James R. Hays (admitted pro hac vice) SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 30 Rockefeller Plaza New York, New York 10112 Telephone: (212) 653-8700 Facsimile: (212) 653-8701 Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JACQUELINE WINNER, Plaintiff, vs. SIX FLAGS ENTERTAINMENT CORPORATION, Defendant. Civil Action No. 15-cv-00103-PGS-TJB DEFENDANT’S RESPONSE TO PLAINTIFF’S LOCAL RULE 56.1 SUPPLEMENTAL STATEMENT OF DISPUTED MATERIAL FACTS Motion Date: September 19, 2016 Document Filed Electronically Defendant Six Flags Entertainment Corporation (“Six Flags”) respectfully submits this Response to Plaintiff Jacqueline Winner’s (“Plaintiff”) Supplemental Statement of Disputed Material Facts (Dkt. No. 28-2). 1 1. Neither as of June 9, 2014, nor currently, has defendant trained any of its employees anywhere in the Park to evaluate what constitutes, “three full 1 For ease of reference, Six Flags has repeated each of Plaintiff’s numbered statements, and has indicated its response directly after each numbered statement. Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 1 of 17 PageID: 1136 -2- fingers” in order to satisfy the ridership requirements on the El Toro ride; nor has it provided them with any guidelines, diagrams, other material, or any other methods to determine what actually constitutes a “full finger.” See Exhibit C, 1 Gifford Dep. at 26:3-9 (admits no training as to how to determine whether someone had all their joints on their fingers); Exhibit C, Dimmick Dep. at 51:22—52:6 (never shown any pictures of fully formed fingers; just left up the attendant’s “discretion” to decide); Exhibit C, Gardener Dep. at 102:8-11 (never shown any slides or pictures as to what “three full fingers” means); see also Exhibit C, Gardener Dep. at 72: 21-24. Response: Disputed, misstates the deposition testimony in this action. While Six Flags does not provide diagrams to its ride attendants and ride operators regarding what constitutes a “full finger,” Matthew Gifford testified that he was trained that a “full finger” is a finger that is “full and complete with all the joints” (Gifford 26), Samantha Dimmick testified that she was trained that she was trained that a “full finger” was “naturally formed . . . that could grip a restraint” (Dimmick 51-52), and John Gardener testified that “[w]hen you go through your rides department training, they tell you that . . . three fully formed fingers have joints that are able to bend and grab onto the grab bar.” (Gardener 73). Furthermore, the testimony referenced by Plaintiff in this statement refers to the training John Gardener received in his current job as an HR Trainer and has nothing to do with Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 2 of 17 PageID: 1137 -3- the training ride attendants and ride operators go through to be trained on a particular ride. In fact, on the very next page of his deposition testimony, Mr. Gardener testified that “[w]hen you go through your rides department training, they tell you that . . . three fully formed fingers have joints that are able to bend and grab onto the grab bar.” (Gardener 73). Finally, in implementing its Attraction Access Pass program, the employees in Six Flags’ Ride Information Center, employees who are responsible for assessing guests and determining which rides a guest meets the ridership restrictions for, also go through rides training. (Turtora Decl. ¶ 29). 2 2. Neither as of June 9, 2014, nor currently, has defendant ever trained any of its employees on how to evaluate whether a guest, such as plaintiff, has the “ability to hold on with a firm grip” to a ride such as the El Toro roller coaster. See Exhibit A, Turtora Dep. at 31:22-25 (“Q: Was there any method at El Toro that day 2 References to “Turtora Decl.” refer to the Declaration of Leonard Turtora, dated August 11, 2016, which was filed in support of Six Flags’ Motion for Summary Judgment (Dkt. No. 27-10). References to “Gardener” refer to the transcript of the Deposition of John Gardener, dated March 28, 2016, which is attached to Plaintiff’s Deposition Appendix as Exhibit C (Dkt. No. 26-5), and is also attached to the Declaration of Sean J. Kirby, dated August 19, 2016 (Dkt. No. 27-3) (“Kirby Decl.”), as Exhibit E. References to “Dimmick” refer to the transcript of the Deposition of Samantha Dimmick, dated March 28, 2016, which is attached to Plaintiff’s Deposition Appendix as Exhibit C, and is also attached to the Kirby Decl. as Exhibit E. References to “Gifford” refer to the transcript of the Deposition of Matthew Gifford, dated March 28, 2016, which is attached to Plaintiff’s Deposition Appendix as Exhibit C, and is also attached to the Kirby Decl. as Exhibit E. Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 3 of 17 PageID: 1138 -4- for the ride attendants to measure whether a guest had the ability to hold on with a firm grip? A: No there was not.”); Exhibit C, Dimmick Dep. at 50:19—52:14 (ride attendants given no training on how to determine whether a guest met the ridership requirement of being able to “hold on with a firm grip.”); see also Exhibit C, Gifford Dep. at 25:3-20 (lacking any method or instrument to measure whether a guest could satisfy ridership requirement of holding on with a firm grip, ride attendants would make that determination “by sight.”); see also See Exhibit C, Gifford Dep. at 35:17-22; Exhibit B, Bowman Dep. at 33:19-22 (no one at defendant’s ride information center is trained to determine whether individual meets ridership requirement of having ability to hold on with a firm grip); see also Exhibit A, Turtora Dep. at 70:14—71:14 (confirming that in June 2014, there was no one either at the guest relations center or the ride information center with the ability or training to evaluate the capabilities of a person with a disability); Id. at 80:2-5 (Turtora confirms that, even at present, there is no one at either the guest relations center or ride information center who has any training in evaluating the physical abilities of a person); Exhibit C, Gardener Dep. at 76:1-5 (Q: “When a person comes to Great Adventure if they have a disability and they want to get tested as to their grip strength, is there any place they could go before they go on rides, as far as you know? A: Not to test their grip strength.”). Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 4 of 17 PageID: 1139 -5- Response: Disputed, misstates the deposition testimony in this action. While Six Flags does not provide a grip strength tester to its ride attendants and ride operators, Six Flags’ ride attendants and ride operators are trained to visually observe each guest to ensure that they have three fully former fingers that can grip the grab bar. (Dimmick 50-51; Gardener 73-74). Furthermore, Plaintiff’s summary of Leonard Turtora’s and Steve Bowman’s deposition testimony is inaccurate. Mr. Turtora and Mr. Bowman never testified that employees in the ride information center lacked training regarding whether a customer satisfied the ridership requirements, rather, they merely testified that Six Flags does not utilize a grip strength tester. (Turtora 70-71, 79-80; Bowman 33). 3 Finally, in implementing its Attraction Access Pass program, the employees in Six Flags’ Ride Information Center, employees who are responsible for assessing guests and determining which rides a guest meets the ridership restrictions for, also go through rides training. (Turtora Decl. ¶ 29). 3. While defendant now states that it directs disabled guests to its Ride Information Center to speak with an attendant there to attempt to obtain an Attractions Access Pass enumerating the rides they may go on, see Turtora August 3 References to “Turtora” refer to the transcript of the Deposition of Leonard Turtora, dated May 13, 2016, which is attached to Plaintiff’s Deposition Appendix as Exhibit A, and is also attached to the Kirby Decl. as Exhibit D. References to “Bowman” refer to the transcript of the Deposition of Stephen Bowman, dated June 1, 2016, which is attached to Plaintiff’s Deposition Appendix as Exhibit B. Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 5 of 17 PageID: 1140 -6- 11, 2016 Declaration at ¶ 27, defendant admits that this attendant has no training or ability to determine if a guest meets defendant’s ridership requirement of having “the ability to hold on with a firm grip.” See Exhibit B, Bowman Dep. at 33:19-22 (no one at defendant’s ride information center is trained to determine whether individual meets ridership requirement of having ability to hold on with a firm grip); Exhibit A, Turtora Dep. at 80:2-5 (Turtora confirms that, even at present, there is no one at either the guest relations center or ride information center who has any training in evaluating the physical abilities of a person); Exhibit C, Gardener Dep. at 76:1-5 (Q: “When a person comes to Great Adventure if they have a disability and they want to get tested as to their grip strength, is there any place they could go before they go on rides, as far as you know? A: Not to test their grip strength.”). Response: Disputed, misstates the deposition testimony in this action. While Six Flags does not provide a grip strength tester to its ride attendants and ride operators, Six Flags’ ride attendants and ride operators are trained to visually observe each guest to ensure that they have three fully former fingers that can grip the grab bar. (Dimmick 50-51; Gardener 73-74). Furthermore, Plaintiff’s summary of Leonard Turtora’s and Steve Bowman’s deposition testimony is inaccurate. Mr. Turtora and Mr. Bowman never testified that employees in the ride information center lacked training regarding whether a customer satisfied the Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 6 of 17 PageID: 1141 -7- ridership requirements, rather, they merely testified that Six Flags does not utilize a grip strength tester. (Turtora 70-71, 79-80; Bowman 33). Finally, in implementing its Attraction Access Pass program, the employees in Six Flags’ Ride Information Center, employees who are responsible for assessing guests and determining which rides a guest meets the ridership restrictions for, also go through rides training. (Turtora Decl. ¶ 29). 4. In this regard, in his August 11, 2016 Declaration at ¶ 29, Turtora admits that, even with whatever policy changes defendant has made, the attendant at the Ride Information Center will conduct only a “visual analysis of the guest.” (emphasis added). Response: Disputed. In conducting the evaluation of whether a guest satisfies the ridership requirements at the Ride Information Center, a Six Flags team member, who has gone through ride training, will ask the guest a number of questions regarding their physical capabilities, including information relating to the guest’s limbs, fill out a form on the computer, and conduct a visual analysis of the guest, in order to determine whether the guest possesses the requisite limbs (i.e., two full legs, one arm with at least three fingers), to satisfy the ridership restrictions for each ride. (Turtora Decl. ¶ 29, Ex. G; Turtora 76-80). 5. Defendant authorizes the ride attendants and operators stationed at every roller coaster ride at Great Adventure, including the El Toro ride, to remove Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 7 of 17 PageID: 1142 -8- a disabled guest who, in the opinion of the ride attendant or operator, appears not to meet the ridership requirements defendant has established for the ride. See Exhibit C, Gardener Dep. at 81:21 – 82:14. Response: Disputed, with explanation. Mr. Gardener testified that only those ride attendants and rider operators who have been trained on the particular ride can ask a guest to disembark the ride if the ride attendant/operator determines, based on their assessment of the guest, that the guest may not meet the ridership requirements for the particular ride. (Gardener 81-82). 6. While not providing its ride attendants with any method to determine if a guest has the requisite “three full fingers” or the “ability to hold on with a firm grip,” see ¶¶ 1-2 above, defendant continues to maintain and enforce its policy that if a ride attendant has any doubts as to whether a guest satisfies the ridership requirements, based on the guest’s appearance, they are to remove that guest from the ride. See Turtora’s August 11, 2016 Declaration at ¶ 21; see also Exhibit A, Turtora Dep. at 29:4-25 (“A: It's in our standard operating procedures that if a guest -- if the ride operator doesn't feel that the guest meets the rider requirements, that they ask the guest to disembark from the ride, explain to them politely why they feel they cannot ride the ride. Q: And is it in the -- those procedures that if there's any doubt as to whether they can ride the ride, they need to ask the guest to get off? A. Correct.”); Exhibit B, Bowman Dep. at 21:21-25 (Q: “Am I correct, Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 8 of 17 PageID: 1143 -9- Mr. Bowman, that the Six Flags Great Adventure policy that the ride operators and ride attendants are instructed in is if they have any doubt they should take the person off the ride? A: Correct”). Response: Disputed, with explanation. While Six Flags’ does not utilize grip strength testers and does maintain a safety policy that “if there is any doubt as to whether a particular guest satisfies the ridership restrictions, ride attendants are trained to instruct the guest to temporarily disembark from the ride so the ride and/or area supervisor can evaluate the guest and make a final decision as to whether the guest satisfies the ridership restrictions” (Turtora Decl. ¶ 21), Six Flags’ ride attendants are trained that a “full finger” is a finger that is “ha[s] joints that are able to bend and grab onto the grab bar.” (Gardener 73). 7. Defendant’s ride attendants must make their decisions as to whether to remove a guest from a ride, if there is any doubt the guest meets the ridership requirements, within a period of 75 seconds while also loading and unloading the ride, typically including 36 guests, checking that their seat belts are secure, their lap bars locked down, and getting the train ready for dispatch. See Document Exhibit 2,5 El Toro Attendant Expanded Procedures, p. 1 at ¶ E (noting the “short 75 sec[ond] window for all unloading/loading and the challenges of efficiently grouping, loading, restraint checking, and dispatching trains consistently”); see also Exhibit A, Turtora Dep. at 54:4—59:13 (discussing all the tasks the ride Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 9 of 17 PageID: 1144 -10- attendants have to complete with 75 seconds to load and unload each El Toro train, check all the riders, etc.). Response: Disputed, with explanation. The target time for unloading and loading the train on the El Toro roller coaster is 75 seconds, but the process could take more or less time depending on the train and the passengers. (Turtora 54). The passenger checking process on El Toro is typically conducted by two ride operators, one on each side of the train, who walk from the front to the back of the train checking, among other things, that each passenger has put on their safety belt, that the safety bar is down, and that each guest has the requisite number of limbs to satisfy El Toro’s ridership requirements. (Gifford 19; Dimmick 54-55). 8. While plaintiff had previously ridden the El Toro ride as many as 50 times prior to the events of June 9, 2014, most, if not all of those rides preceded was implemented defendant’s change in its ridership requirements (which defendant has stated only sometime in 2012, see Turtora August 11, 2016 Declaration at ¶ 11), whereas it was the new (post-2012) ridership requirements that defendant applied when removing her for the El Toro ride on June 9, 2014. See Exhibit D, Winner Dep. at 11:2-12:1 (explaining that, while over the course of “her life,” she had ridden El Toro many times, prior to June 9, 2014, her last visit prior to the events of June 9, 2014 happened in either 2012 or 2013.). Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 10 of 17 PageID: 1145 -11- Response: Disputed, with explanation. Plaintiff testified that she had ridden El Toro at least 50 times previously without incident, however, she never testified when these 50 rides occurred. However, Plaintiff did admit that she rode El Toro without incident in either 2012 or 2013 – which was after the amended ridership requirements on El Toro were implemented. (Winner 11-14). 9. On June 9, 2014, when defendant’s ride attendants removed plaintiff from the El Toro ride, none of them examined her fingers to determine if they met the ridership requirement of having “three full fingers,” nor did they conduct any evaluation of her grip strength to determine if she met the ridership requirement of having “the ability to hold on with a firm grip” to the El Toro Roller coaster. See Exhibit C, Gifford Dep. at 31:24—32:7; 33:19-25 (admitting that he did not measure plaintiff’s fingers in any way and did not test her grip strength in any way). Response: Disputed, with explanation. Mr. Gifford testified that when he was speaking with Plaintiff, she held up her hand, he examined her fingers, and he determined that Plaintiff did not have three full fingers. (Gifford 33). 10. After defendant removed plaintiff from the ride in front of 300 observers, plaintiff -- “hurt, humiliated and very ashamed and embarrassed” -- see Plaintiff’s Document Exhibit 4, Guest Service Recovery form, went to file a complaint about her treatment at defendant’s Guest Services Center. See Exhibit D, Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 11 of 17 PageID: 1146 -12- Winner Dep. at 18:24—19:24. After arriving there, she spoke to the clerk and asked if she could speak with someone with “true authority,” who could explain to her why she was told she had to get off the ride. See id. at 24:11—25:2. Response: Admitted, with explanation. While this statement accurately summarizes Plaintiff’s deposition testimony, Mr. Gifford testified that there may have been 300 people in the El Toro station, but he never counted the actual number. (Gifford 34). 11. Eventually, an area rides supervisor, John Gardener, who had been notified about the incident, arrived at Guest Services and, at first, simply waited there, without introducing himself, while plaintiff finished filling out her complaint form. See Exhibit C, Gardener Dep. at 85:24—86:7; Exhibit D, Winner Dep. at 24:17—25:17. Plaintiff told Gardener “how upset she was and how she was embarrassed because she was with her daughter and all her school friends and . . . that she would never want to feel like that and that’s how she felt.” He observed that, “[s]he was upset, she was crying.” See Exhibit C, Gardener Dep. at 88:14-18. Response: Admitted, with explanation. While this statement accurately summarizes Plaintiff’s testimony, Mr. Gardener testified that he waited for Plaintiff to finish filling out her complaint at guest services before introducing himself. (Gardener 85-86). Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 12 of 17 PageID: 1147 -13- 12. Gardener testified that while speaking with plaintiff in the Guest Services office, he observed that “she was able to pick something up” – apparently the pen that she was writing her complaint with-- and that she held onto the desk while writing her statement, and that, after “observing her writing” he concluded that her three fingers were “fully formed.” See Exhibit C, Gardener Dep. at 73:22—74-13. Response: Admitted. This statement accurately recites Mr. Gardener’s deposition testimony. 13. In direct conflict with Gardener’s telling plaintiff on June 9, 2014 that she was free to ride the El Toro ride, Stephen Bowman, Gardener’s supervisor, and one of the top managers at Great Adventure, has made clear he does not concur with Gardener’s view of plaintiff. Thus, Bowman testified at his deposition that he still views plaintiff as not meeting the ridership requirements for the El Toro ride: Q. So if you would look at Ms. Winner's hand. Ms. Winner, can you hold up your hand. Does she have three fully formed fingers? Keep it up, please. A. No. Q. She does not. So under the ride, the limb ridership requirements, it would be your opinion she should not ride the El Toro ride; is that correct? Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 13 of 17 PageID: 1148 -14- A. At this time, yes. Q. At this time, yes. What about in June of 2014? A. Yes. See Exhibit B, Bowman Dep. at 23:8-17 (emphasis added). Response: Disputed, with explanation. While Plaintiff has accurately quoted Mr. Bowman’s testimony, Plaintiff fails to include Mr. Bowman’s statement on the following page of his deposition testimony that he cannot make a determination as to whether Plaintiff could ride El Toro because “I don’t know if she has the ability to grasp.” (Bowman 24). 14. Defendant has admitted that the recent changes it claims to have made to its Attractions Access Pass policies were made in direct response to plaintiff’s prosecution of the current litigation. See Exhibit A, Turtora Dep. at 66 (“Q: Why was that [policies and procedures at defendant’s ride information center] changed? A: As part of this case and just as another enhancement to our policies and procedures . . .” (emphasis added)). [Those changes purportedly allow for a disabled guest to obtain a pass to ride certain rides after an interview with a “team member” at the Ride Information Center, who will “ask a number of questions” of the disabled guest and perform only a “visual analysis of the guest.” See Turtora August 11, 2016 Declaration]. Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 14 of 17 PageID: 1149 -15- Response: Disputed. This statement mischaracterizes the deposition testimony and declarations submitted in this action. Mr. Turtora testified that the implementation of the Attractions Access Pass program was part of the ongoing enhancement of Six Flags’ policies and procedures, as well as part of this case. (Turtora 65-67). In conducting the evaluation of whether a guest satisfies the ridership requirements at the Ride Information Center, a Six Flags team member, who has gone through ride training, will ask the guest a number of questions regarding their physical capabilities, including information relating to the guest’s limbs, fill out a form on the computer, and conduct a visual analysis of the guest, in order to determine whether the guest possesses the requisite limbs (i.e., two full legs, one arm with at least three fingers), to satisfy the ridership restrictions for each ride. (Turtora Decl. ¶ 29, Ex. G; Turtora 76-80). 15. While defendant states that its Safety & Accessibility Guide contains language directing guests with questions about whether they meet defendant’s ride restrictions to visit the Ride Information Center, see Turtora Certification at ¶ 27, not only is there no employee at the Ride Information Center trained to evaluate the abilities of that guest, see ¶ 14 above, but a review of defendant’s Safety & Accessibility Guide currently available on the internet shows that it includes no such language. See Certification of Richard Schall in Opposition to Defendant’s Motion for Summary Judgment at ¶ 4; see also Exhibit 7, in Plaintiff’s Document Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 15 of 17 PageID: 1150 -16- Appendix, showing that the version of defendant’s Safety & Accessibility Guide downloaded on August 16, 2016 from the internet lacks any such language. Response: Disputed. Page 7 of the current version of Six Flags’ Safety & Accessibility Guide expressly provides that “[i]f you have questions concerning whether you meet the manufacturer and safety restraint system requirements for certain attractions (concerning the ability to maintain proper riding position and/or the physical requirements with respect to functioning limb and gripping ability) you should visit the Ride Information Center inside the Park and ask about the Attractions Access Pass.” (Turtora Decl., Ex. A). Furthermore, in conducting the evaluation of whether a guest satisfies the ridership requirements at the Ride Information Center, a Six Flags team member, who has gone through ride training, will ask the guest a number of questions regarding their physical capabilities, including information relating to the guest’s limbs, fill out a form on the computer, and conduct a visual analysis of the guest, in order to determine whether the guest possesses the requisite limbs (i.e., two full legs, one arm with at least three fingers), to satisfy the ridership restrictions for each ride. (Turtora Decl. ¶ 29, Ex. G; Turtora 76-80). 16. While defendant now states that, based on the “evaluation” of plaintiff conducted by area supervisor Gardener, it has now added plaintiff to its Attractions Access Pass database indicating that she can now ride the El Toro ride, defendant Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 16 of 17 PageID: 1151 -17- just made that pronouncement in filing its current motion for summary judgment on August 19th, 2016 – over a year and one-half into this litigation, after all discovery has been completed. See Certification of Richard M. Schall in Opposition to Defendant’s Motion for Summary Judgment at ¶ 3, filed concurrently with this Opposition Brief; see also August 11, 2016 Turtora Declaration at ¶ 31, asserting that defendant had added plaintiff to its Attraction Access Pass database. Response: Admitted, with explanation. Even though Plaintiff’s counsel deposed Mr. Turtora, Steve Bowman, and other Six Flags’ employees, he never asked these deponents whether or when Plaintiff was added to the Attractions Access Pass database. Dated: New York, New York September 16, 2016 Respectfully submitted, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By: s/ Sean J. Kirby Sean J. Kirby 30 Rockefeller Plaza New York, New York 10112 Tel.: (212) 653-8700 Fax: (212) 653-8701 Attorneys for Defendant Case 3:15-cv-00103-PGS-TJB Document 32-1 Filed 09/16/16 Page 17 of 17 PageID: 1152 -1- Sean J. Kirby SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 30 Rockefeller Plaza New York, New York 10112 Telephone: (212) 653-8700 Facsimile: (212) 653-8701 Attorneys for Defendant Six Flags Entertainment Corporation UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY JACQUELINE WINNER, Plaintiff, vs. SIX FLAGS ENTERTAINMENT CORPORATION, Defendant. Civil Action No. 3:15-cv-00103-PGS-TJB Motion Date: September 19, 2016 Document Filed Electronically CERTIFICATE OF SERVICE I, Sean J. Kirby, hereby certify that on September 16, 2016, true and correct copies of: (i) Defendant’s Reply Brief in Support of its Motion for Summary Judgment; and (ii) Response to Plaintiff’s Local Rule 56.1 Supplemental Statement of Disputed Material Facts, were served upon all counsel of record via the Court’s Electronic Case Filing system. s/ Sean J. Kirby Sean J. Kirby Case 3:15-cv-00103-PGS-TJB Document 32-2 Filed 09/16/16 Page 1 of 1 PageID: 1153