1. law, govt and politics

The Honorable James Hunter III
Moot Court Program
2014–2015
The 25th Anniversary
Competition Final Arguments
Tuesday, April 7, 2015
4:00 p.m.
Courtroom 5D
Mitchell H. Cohen U.S. Courthouse,
Camden, New Jersey
2014–2015 James Hunter III Moot Court Board
Gloria Melunis
Hunter Board Chairs:
Jennifer Houghton
Brian McGinnis
Yasha Shahidi
Erika Page
Samuel Pellegrino
Steven Zagorski
Faculty:
Prof. Ruth Anne Robbins
Prof. Jenean Kirby
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Benjamin Hartwell
Neil Hlawatsch
Melissa Martinez
The 2014–2015 James Hunter III Moot Court Students
Defendant/Appellant
Candied Adventures
Plaintiff/Appellee
Molly Kemery
Max Bernstein & Aaron Creuz****
Megan Admire & Caitlin Costello***
Miranda Browne & May Wedlund
Greg Console & Andrew Schwerin
Linwood H. Donelson III & Colleen Gardner**
Sarah Cutuli & Samantha Heaton*
Mark Fanelli & Rachel Santitoro
Katherine Daniel & Jesse Posey
John Gazzola & Nicholas Stevens*
Kelley Keane-Dawes & Melanie Lacey*
Matthew Garber & Jarrod Welsh
Sean Fulton & Jaclyn Palmerson****
Dominic Giova & Brielle Kovalchek***
Scott Isaacson & Aubrey Weaver
Roy Gordon & Chris Green*
Jason Kanterman & Max Noveli
Grady Lowman & Eddie Park
Jessica Lentini & Leigh Kelsey O’Donnell**
Jason Premus & Melissa Valladares**
Brendan McDonnough & Laura Rossi**
*Hunter’s Dozen
**Quarter-finalist
***Semi-finalist
****Finalist
Defendant/Appellant
Candied Adventures
Plaintiff/Appellee
Molly Kemery
John Gazzola &
Nicholas Stevens
Sara Cutuli &
Samantha Heaton
Max Bernstein &
Aaron Creuz
Katherine Daniel &
Jesse Posey
Melissa Valladares &
Jason Premus
Jason Kanterman &
Max Novelli
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2014–2015 Best Briefs In Dedication to the Honorable James Hunter III
This annual moot court competition at Rutgers School of Law–Camden is dedicated to the memory
of Judge Hunter, who served on the Third Circuit of the United States Circuit Court of Appeals,
from November 10, 1971 until his passing on February 10, 1989.
A life-long resident of South Jersey, Judge Hunter attended
Temple University and The University of Pennsylvania Law
School before becoming a partner in the Haddonfield firm of
Archer, Greiner, Hunter & Read (now Archer & Greiner).
Additionally, prior to his appointment to the bench on
November 10, 1971, Judge Hunter was a Major in the Marine
Corps, serving in combat in World War II.
Judge Hunter’s family, friends, former law clerks and the law firm
of Archer & Greiner saw it fit to preserve the Judge’s legacy in
the Rutgers–Camden annual moot court competition. As both an
attorney and member of the New Jersey bench, Judge Hunter
stood for many things, but it was his interest in the development
of young attorneys, evidenced through his keen interest in his law
clerks, that made this competition a fitting memorial. Those who dedicated this competition in the
Judge’s honor wished it to stand for many of the same goals that Judge Hunter supported throughout
his career. Their support allows them, as well as fellow members of the bench and bar, to pay tribute
to his great legacy while furthering the development of the legal profession, as he would have
wanted. We take this opportunity to show our gratitude to Judge Hunter’s family and friends as well
as the many gracious donors that help make this competition possible.
A note about the name “Garwood” in the use of the simulation. Ann Viskovich Garwood,
1918–2012, was the longtime administrative assistant to Judge Hunter. Mrs. Garwood was born and
raised in Camden, and her graduation from Camden Catholic was the first high school diploma in her
Croatian immigrant family. She began working with Judge Hunter in 1954, when he was a partner at
Archer, Greiner, Hunter & Read. Judge Hunter asked her to accompany him when he joined the
Third Circuit in 1971. She continued as his secretary until his death in 1989. Their professional
relationship of over thirty-five years was characterized by mutual respect, disguised by teasing and
humor. Judge Hunter called her "Mrs. Garbleword," and canonized her husband Mr. Frank "Bud"
Garwood as "St. Bud" for staying married to her for fifty-three years. Mrs. Garwood was proud and
very fond of Judge Hunter, his wife Jane, and their many law clerks ("kids") and interns ("moppets").
After Judge Hunter's death, Mrs. Garwood religiously attended this moot court competition named
in his honor. She was accompanied by her granddaughter, Rutgers Law alumna, D.A.G. Kristen
Harberg, herself a Hunter moot court participant.
This year marks the 25th anniversary of the Hunter moot court program and the Board would like to
welcome back many past Hunter alumni and judges to celebrate this noteworthy occasion.
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Beginning in 2012, the same year as her passing, our simulation includes the name “Garwood” in
some way. This year, we have named the high school that our Plaintiff, Molly Kemery attended the
“Anne Garwood Memorial High School,” in tribute (the extra “e” on the name “Anne was
deliberate).
Welcome from the 2014–2015 Hunter Moot Court Board
Welcome to the final argument of this year’s Honorable James Hunter III Moot Court
Competition. Since 1998, this Competition has been dedicated to training upper-level law
students in advanced written and oral advocacy. Under the umbrage of Rutgers School of Law–
Camden’s innovative and nationally-recognized lawyering program, the Hunter Moot Court
Competition stands as one of the most advanced intramural competitions in the country.
This program began over the summer, with many board members meeting with our supervising
faculty to draft the simulation. By mid-September, we had drafted the largest Hunter record ever,
over 120 pages of trial transcripts, exhibits, amusement park schematics, and other documents.
The simulation begins with a lower court (the trial court) finding in favor of the plaintiff, Molly
Kemery. The Hunter students then pick up where the simulation leaves off, and they are
responsible for completing the appeal of the lower court holding.
This past fall, after competing for one of the seats in the year-long course, students, in teams of
two, wrote a complex appellate brief on the below-summarized legal issues. The students then
progressed to the spring semester’s oral advocacy course and competition. Through work with
the course Professors and Board Members, these students honed their oral advocacy abilities and
began the competitive rounds, which culminate in tonight’s final argument.
To the participants, many thanks for the diligent work, dedication, and commitment to this
challenging competition. We have been extremely impressed with all participants, and wish you
the best in all future endeavors.
The guest judges in our competition have been illustrious and we are extremely honored by their
commitment to judging. Our guest judges have included federal and state judges, federal and
state judicial law clerks, private practitioners at large, medium, and small firms, Assistant U.S.
Attorneys, attorneys at the New Jersey Attorney General’s office, public defenders and
prosecutors, in-house counsel at large and publicly traded companies, and of course, dedicated
members of our own faculty. Some of our guest judges are also alumni and former members of
the Hunter Moot Court program. To each of them, we say thank you.
Finally, the Hunter Board would like to thank Professors Ruth Anne Robbins and Jenean Kirby
for constructing and teaching a challenging—and highly beneficial—curriculum and simulation.
We have been honored to work with the professors in helping these outstanding students
develop into the successful writers and advocates that they are today.
From all of us on the 2014–15 Hunter Moot Court Board
Gloria Melunis
Erika Page
Samuel Pellegrino
Yasha Shahidi**
Steven Zagorski
** Hunter Board Chairs
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Benjamin Hartwell
Neil Hlawatsch
Jennifer Houghton**
Melissa Martinez
Brian McGinnis**
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________________________________________________________
No. 14-0916
__________________________________________________________________
Candied Adventures
Defendant-Appellant
v.
Molly Kemery,
Plaintiff-Appellee
____________________________________________________________________
Final Round Attorneys
For the Appellant:
Max Bernstein & Aaron Creuz
For the Appellee:
Sean Fulton & Jaclyn Palmerson
Guest Panel
The Honorable Theodore A. McKee
Chief Judge, United States Court of Appeals for the Third Circuit
The Honorable Stuart J. Rabner
Chief Justice, New Jersey Supreme Court
The Honorable Marjorie O. Rendell
United States District Court of Appeals for the Third Circuit
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4:00 pm: Guests and participants assemble.
4:15 pm: Final round arguments begin in Courtroom 5D
6:00 pm: Reception in the Multipurpose Room.
Located in the Student Center of the Rutgers University Camden – Campus
Our Guest Judges
The Honorable Theodore A. McKee
Chief Judge, United States District Court of Appeals for the Third Circuit
Judge Theodore A. McKee is the current Chief Judge of the United States Court of Appeals
for the Third Circuit in Philadelphia. Judge McKee joined the Third Circuit in 1994, after
being nominated by President Bill Clinton. In 2010, he succeeded Judge Anthony Scirica to
become Chief Judge. Prior to joining the Third Circuit, Judge McKee served on the Court of
Common Pleas in Philadelphia and as a lecturer at Rutgers School of Law-Camden. He has
also held various other positions in both the public and private sector. Judge McKee remains
actively committed to public interest work and currently serves on the board of several nonprofit organizations, including Fox Chase Cancer Center, Temple University, and City YearGreater Philadelphia. Judge McKee received his J.D. magna cum laude from Syracuse
University College of Law in 1975.
The Honorable Marjorie O. Rendell
United States District Court of Appeals for the Third Circuit
Judge Marjorie Osterlund Rendell, a cum laude graduate of the University of Pennsylvania,
received her Juris Doctor degree from the Villanova University School of Law in 1973.
Upon graduation from law school, she joined the law firm of Duane, Morris & Heckscher,
where she subsequently became the firm’s second woman partner. Over the course of her
20-year career as a practicing attorney, she specialized in bankruptcy law and commercial
litigation, served as a mediator for the United States District Court and was a frequent
speaker at law-related seminars and panels. Inducted as a judge of the United States District
Court for the Eastern District of Pennsylvania in March of 1994, Judge Rendell was elevated
to the United States Court of Appeals for the Third Circuit in November of 1997. She is a
past Chair of the United States Judicial Conference Committee on the Administration of the
Bankruptcy System. Judge Rendell is the Chair of the Third Circuit Bankruptcy Committee
and a member of the Third Circuit Judicial Council Executive Committee. Judge Rendell
became the 43rd First Lady of Pennsylvania when her husband, Governor Edward G.
Rendell, was sworn in as Governor of Pennsylvania on January 21, 2003.
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The Honorable Stuart J. Rabner
Chief Justice, New Jersey Supreme Court
Chief Justice Stuart Rabner is the eighth chief justice to lead the New Jersey Supreme Court
since the 1947 state constitution. Chief Justice Rabner graduated summa cum laude from the
Woodrow Wilson School of Public and International Affairs at Princeton University in 1982.
He graduated cum laude from Harvard Law School in 1985. He was a law clerk to U.S.
District Court Judge Dickinson R. Debevoise before joining the U.S. Attorney's Office in
Newark in 1986. Chief Justice Rabner began his career at the United States Attorney’s
Office, serving as first assistant U.S. attorney, then as chief of the Terrorism Unit in the
office of the U.S. Attorney for the District of New Jersey. Prior to his nomination to the
bench, Justice Rabner served as chief counsel to Governor Jon Corzine and as Attorney
General for the State of New Jersey. Chief Justice Rabner was confirmed by the New Jersey
State Senate and sworn into office in 2007. In 2014, he received tenure as Chief Justice after
nomination by Governor Christie and confirmation by the State Senate.
Overview of the Case and Issues on Appeal
This competition is dedicated to teaching second and third year law students about advanced
advocacy in both written and verbal forms. The students in the Hunter Program are part of a very
select group, each of whom has completed multiple steps to reach this stage of the competition. This
past fall, students were divided into teams and as part of their coursework, they analyzed the
complicated legal simulation developed by the professors and the Hunter Moot Court Board. The fall
semester culminated with the students submitting a federal appellate brief on the legal issues
contained in the simulation. During this semester, the students shifted their focus to improving their
public speaking and oral advocacy skills. The culmination of the year is the oral argument
competition. During the students’ presentations, the judges ask them questions about the various
legal issues present in the simulation. Each team of two students is scored on how well they are able
to do all of this in the allotted twenty-four minutes of argument time.
The Parties: Candied Adventures, LLC, Defendant-Appellant v. Molly Kemery, Plaintiff-Appellee
This simulation has two legal issues: first, whether a person’s weight is considered a disability under
the Americans with Disabilities Act (“ADA”), and second, whether offensive comments made by
amusement park employees about a person’s weight entitle the obese person to sue for the emotional
distress those comments caused.
Molly Kemery, the plaintiff-appellee, weighs 225 pounds and is 5’7” tall. On June 8, 2013, Kemery
attended her twenty-year high school reunion at Candied Adventures, which is an amusement park
containing twenty-eight rides and employing about 750 people. Candied Adventures is particularly
well known for offering accommodations and generous discounts to veterans and their families.
Kemery was eager to enjoy the rides, particularly the fantasy-themed Battle at Candy Castle, so she
purchased a yearlong pass upon entering the Park.
The events which give rise to the lawsuit began when Kemery got in line to ride the Battle at Candy
Castle. At the beginning of the line, the ride provides a test seat, equipped with a lighting system for
patrons to test their suitability for the ride. Green means go, yellow is a signal to wait, and red means
the rider is unsuited for the ride. Before getting in line, Kemery sat in the test seat, which showed a
yellow light indicator. Nonetheless, the test seat operator told Kemery that she would be fine to ride
Battle at Candy Castle.
Kemery was embarrassed after the experience and she immediately left that section of the Park.
Eventually she bought lunch and a bag of candy at one of the many stores inside the Park. After a
while she made her way to Candied Adventures’ marquee roller coaster, Sugar Rush. However, while
Kemery was waiting in line, the ride attendant, Brandon Quigley, walked up to her and said, “Your
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After waiting over an hour in line with many others from her class reunion, Kemery boarded the ride.
However, when the ride operator, John Hogan, (a different Park employee from the test seat
operator) attempted to elevate the seats to the flying position, the ride remained motionless. Hogan
then approached Kemery specifically and directed her to accompany him to a second test seat,
located on the platform. This time, the light turned red. When Kemery protested, Hogan said, “Listen
lady, you’re just too damn fat to get on the ride. Okay? So it’s time for you to go.” Although Kemery
wanted to handle the incident discreetly, Hogan directed her to exit from the way she came in—
passing the entire waiting line of riders in the process. As she exited, Hogan exclaimed, “I can’t
believe that lady thought she could fit those gigantic boobs into the seat.” The observing crowd
erupted in laughter. A concerned mother who was not a part of the class reunion witnessed the
incident and reported it to customer service. By way of background, some of these same classmates
had bullied Kemery about her weight when she was in high school.
name is Molly, right?” When Kemery confirmed her identity, Quigley said, “Look, Mega Molly, you
aren’t going to fit on this ride either.” It turned out that the ride attendant from Battle at Candy Castle
had both tweeted and texted about the event, spreading the word about Kemery to other Candied
Adventures employees. When Kemery protested, Quigley responded while eyeing the bag of candy in
Kemery’s hands, “The only sugar rush you will be feeling today is when you undoubtedly eat yourself
into a candy coma with that big bag you have got there.”
Kemery then left the Park, and she later learned that the son of one of her classmates had recorded a
video of her embarrassing experience at Battle at Candy Castle on his iPhone. The classmate
uploaded his son’s video to a YouTube account and posted about it on Facebook, writing, “It ain’t
over till Molly sings!” Many of her classmates who had attended the reunion saw this post. Over the
next few days, Kemery received notifications on her phone every time her classmates “liked” or
commented on the video. Kemery fell into a deep depression that caused her to lose her job.
PROCEDURAL HISTORY
Kemery sued Candied Adventures in Pennsylvania federal court alleging violations of the ADA and
tort liability for intentional infliction of emotional distress (“IIED”). Kemery argued her obesity
qualifies as a disability and that Candied Adventures should therefore be required to modify Battle at
Candy Castle and Sugar Rush to accommodate her so she and other obese individuals can ride the
rides. Kemery also alleged that the actions of the Park and its employees were sufficient to establish
liability for intentionally inflicting distress upon her in violation of Pennsylvania law.
A federal district court judge in the Eastern District of Pennsylvania ruled in favor of Kemery on
both issues and found that Kemery’s obesity qualified as a disability under the ADA and ordered
Candied Adventures to modify its rides to permit access by obese patrons. The judge also found
that Candied Adventures’ conduct was both intentional and beyond the decency of society, and,
therefore, all the requirements of IIED were satisfied. Candied Adventures filed the present appeal
that gives rise to the oral argument.
LEGAL ARGUMENTS
The students, arguing for either Kemery or Candied Adventures, will split the oral argument up into
its two main issues: (1) whether the ADA covers obesity as a disability, and if so, whether Candied
Adventures must modify its rides to accommodate people like Kemery; and (2) whether the Park
employees’ behavior met the standards for IIED.
Intentional Infliction of Emotional Distress
While IIED is a state law claim, most jurisdictions, including the Third Circuit and other courts
interpreting Pennsylvania law, look to the Restatement (Second) of Torts for guidance. In order to
prevail on an IIED claim under this standard, Kemery must show: ( 1 ) that the conduct at issue was
extreme and outrageous; (2) that the conduct was either intentional or reckless; (3) that the conduct
caused Kemery’s distress; and (4) that the emotional distress was severe. Kemery prevailed on all of
these elements in the trial below, but if the appellate court finds that any one of the elements was
not met, Candied Adventures will prevail on the IIED issue.
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Detailed information about the legal arguments
The ADA
In 1990, Congress passed the ADA in order to ensure equal opportunity for individuals with
disabilities in a variety of settings. With respect to an individual, disability is defined as a physical or
mental impairment that substantially limits one or more of the major life activities of such
individual. In order to show that one’s disability entitles one to reasonable accommodations, a
condition must be: (1) a physical or mental impairment; (2) the impairment must be substantially
limiting; and (3) the impairment must limit a major life activity.
Guest Judges in the 2014-2015 Competition
Semi-Finals
Hon. Joel Schneider
Stephen Orlofsky
Laurie Magid
Quarterfinals
Hon. Renee Bumb
Hon. David Strawbridge
Hon. David Ragonese
Hon. Karen Williams
Hon. Andrew Altenburg
Deborah Mains
Hunter Dozen
Hon. Daniel Bernardin
Elizabeth Carbone
Anthony Perno
Christina Congdon
Barbara Gotthelf
Anand Acharya
Ragner Jaeger
Logan Elliott Pettigrew
Jason Redd
Estelle Bronstein
First Round
Steven Shur
Elizabeth Pascal
Brian Quigley
Norman Gross
Neal Thakkar
Anne Taylor
Willam Castner
Kevin Costello
Hon. James Maley
Justin Danilewitz
Brian O’Neil
Debbie Mikkelsen
Lloyd Freeman
Anthony Perno
Mark Gulbranson
Andrew Ruymann
Sarah Thakkar
Matthew Skahill
Mark Strasle
Glenn Moramarco
Francisco Maldonado-Ramirez
Joshua Hafetz
Sara Fedorczyk
Jason Redd
Grant Berger
Kiara Kyung Han
Daniel DeFigilo
Noah Dennison
Howard Weiner
Sara Aliabadi
Kate McDonnell
Hon. Mary White
Jeremy Abay
Irene Dowdy
Aysha Ames
Steven D’Aguanno
Joel Juffe
Andrew Slom
Kate McDonnell
Faculty Rounds
John Beckerman
Bob Williams
Rich Barkasy
Carol Wallinger
Dennis Braithwaite
Craig Oren
Mel Shuster
Jason Cohen
Steven Friedell
Roger Clark
Pam Jenoff
Katie Eyer
Phillip Harvey
Sarah Ricks
RJ Norcia
Kati Kovacs
Lou Moffa
Harriet Katz
Brandon Simmons
Carly Campoli
Katrina Xyloportas
Panayiota Kotokis
Jeanne Rigas
Evan Bendon
Steven Joy
Chelsea Nixon
David Coppola
Daniel Lefebvre
Craig Wagenblast
PJ Farinella
David Incle
Brian Noble
Andrew Sonricker
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Bailiffs
Bassel Rabah
Thank you
Acting Dean John Oberdiek, and Vice Dean Adam Scales for their continued support
And
Marjorie Hemmings
Fran Brigandi
For her continued support and unending patience.
Who stepped into the role of event planner and co-coordinator with
grace and efficiency. We simply could not have done this without her.
Nancy Talley
R.J. Norcia, Brandon Simmons, Kathryn Somerset
Our wonderful research librarian, who put together videos and
held research conferences with students.
Our 3L Hunter alumni who were there to help when we needed extra
hands.
Professor Katie Eyer
Matthew Hollowniczky, Jacob de Blecourt, & Shelby
Robbins
Thank you for talking to us about the law of Title III and public
accommodations
& to Professor Victoria Chase who helped us build the
storyline last summer
For the field research at amusement parks and with Dungeons &
Dragons
Professor J.C. Lore
Cathy Donovan
For understanding our need to take over the moot courtroom
when one of our first rounds was cancelled due to snow.
For help and direction with public relations and for promoting the
program on our social media.
The Honorable Octavia Melendez, J.S.C., George
Kemery & Professor Carol Wallinger
The Chambers
of The Honorable Ann Marie Donio,
& in particular, Sharon Crescenti
For volunteering part of their Saturday to our oral advocacy
workshop that was well attended and very well received by our
students.
Hunter Alumni – Aysha Ames, Liz Carbone,
Christina Congdon, Daniel DeFiglo, Noah
Dennison, Mark Gulbranson, Kiara Kyung Han,
Ragner Jaeger, Joel Juffe, Brian O’Neil, Logan Elliott
Pettigrew, Steven Shur, Andrew Slom, Mark Strasle
For the continued support and dedication that you show the
Hunter program
Friends and Family of the 2014-2015 Hunter
Students
For the overwhelming support that we have had at all of the
arguments this year.
for arranging and assisting with our use of the federal courthouse.
The federal judges who very kindly let us use their
courtrooms:
The Honorable Andrew B. Altenberg, Jr.
The Honorable Gloria M. Burns,
The Honorable Ann Marie Donio
The Honorable Noel L. Hillman
The Honorable Joseph Rodriguez
The Honorable Joel Schneider
The Honorable Karen M. Williams
Westlaw & Lexis
Thank you for the extra training sessions & research help.
Nolan Kirby
For being so cheerful and helpful with late nights at the federal
courthouse.
For being “Master of the spreadsheet and all things mathematics
related.”
Elizabeth Pascal
For coordinating the assistance of the AUSAs who are integral
to our program’s success.
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Federal Courthouse Security and Staff
The Honorable James Hunter III Moot Court Legacy
Past Winners of the oral argument competition
2013–14
Benjamin Hartwell and RJ Norcia
2012–13
Keith Nagy and Meha Siyam
2011–12
Mark Natale and Logan Elliott Pettigrew
2010–11
Regina Lawrence and Nicole Gentile
2009–10
Alexander Hersonski and Scott Simpkins
2008–09
Michael Block and Geoffrey Stark
2007–08
Patrick Casteñeda and Christopher Emrich
2006–07
Brian Fitzsimmons and Elizabeth Livingston
2005–06
Wesley Huber and Christine Catalfamo
2004–05
Michelle Ofner and Joseph Rindone
2003–04
Marco Capasso and Kyle Phillips
2002–03
Ryan Gager and Christopher Morgan
2001–02
Jeanine Graham and Sarah Klosek
2000–01
Claire J. Evans and Kelly B. Hicks
1998–99
Elissa J. Ferrante and Amy J. Smith
1997–98
David P. Heim and Phil Young Cha
1996–97
Richard J. Hoff and Daniel J. McGravey
1995–96
Olga Chesler and Beth Eddinger Wesley
1994–95
Mary L. Grabka and Lori M. McNeely
1992–93
Saima Shafio and Suzanne C. Thomson
1990–91
William P. Flahive and D. Matthew Jameson, III
1989–90
David E. Ewan and Patricia A. Fralinger
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1999–2000 Debbie Anne Carlos and Carol Gershon
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