IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

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CINEMARK USA, INC., Plaintiff

UNITED STATES DEPARTMENT OF JUSTICE, Defendant

3:99-CV-0183-L

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DEFENDANT'S MOTION TO DISMISS

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendant United States Department of Justice hereby moves that this Court dismiss this action. The grounds for this motion, detailed in the accompanying memorandum, are that (1) Plaintiff does not challenge "final agency action" and has an adequate remedy in a court, and therefore cannot sue the United States under the Administrative Procedure Act; (2) this declaratory judgment was filed in anticipation of an enforcement action filed in another federal district court that can resolve the controversy between the parties; and (3) Plaintiff is barred by collateral estoppel from seeking a declaratory judgment that its current theaters comply with the Americans with Disabilities Act, and therefore on this count fails to state a claim upon which relief can be granted.

Dated: April 2, 1999 Respectfully submitted,

DAVID W. OGDEN

Acting Assistant Attorney General

PAUL E. COGGINS

United States Attorney

JIM LAURENCE

Assistant United States Attorney

_______________________________

RICHARD G. LEPLEY

Assistant Branch Director

DAVID O. BUCHHOLZ (Pa. Bar # 65320)

Trial Attorney

Federal Programs Branch

Civil Division

U.S. Department of Justice

901 E Street, N.W., Room 952

Washington, D.C. 20530

(202) 514-3330

Counsel for Defendant

CERTIFICATE OF SERVICE

I certify that a true and correct copy of Defendant's Motion to Dismiss was served by overnight express delivery addressed to the following counsel:

Laura M. Franze

Akin, Gump, Strauss, Hauer & Feld

1700 Pacific Avenue, Suite 4100

Dallas, TX 75201

Robert W. Jordan

Baker & Botts

2001 Ross Avenue, Suite 800

Dallas, TX 75201

Dated: April 2, 1999 ___________________________

David O. Buchholz