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IN THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT

ANTHONY FAUCI,

Plaintiff-Appellee, V.

SPICY PEACH, INC.,

Defendant-Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EMORY

No. 20-00238

BRIEF FOR APPELLEE

Team AA Counsel for Appellee

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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................i TABLE OF AUTHORITIES..........................................................................................................iii STATEMENT OF THE ISSUES....................................................................................................1 STATEMENT OF THE FACTS.....................................................................................................2 SUMMARY OF THE ARGUMENT..............................................................................................4 ARGUMENT...................................................................................................................................7 I. FAUCI’S NOVEL LEGAL ARGUMENT WAS PROPERLY CONSIDERED BY THE

DISTRICT COURT.………………………………………………………………………7 A. The FMA and Article III of the U.S. Constitution Compel District Courts to Consider

All Novel Legal Arguments Raised Before It…………………………………………7 1. The FMA does not support the argument that Fauci waived the right to raise a

new legal argument before the district court.…………………………………...…8

2. The district court is constitutionally compelled to grant de novo review to Fauci’s novel legal argument………………………………………………………………9

i. The Fourth Circuit’s approach is most equitable and closely complies with

the intent of the FMA and the U.S. Constitution…………………….........9

ii. Discretionary approach is inappropriate because it does not provide sufficient constitutional safeguards………………………………………10

iii. Even if the Court finds that district courts have discretion, Fauci is still

entitled to de novo review under the Wells Fargo test. ………………….11

B. Judicial Efficiency Does Not Outweigh a Litigant’s Right to Constitutional Safeguards……………………………………………………………………………13

C. The Doctrine of Excusable Neglect Must be Applied Due to the District Court’s Clerical Error………………………………………………………………………...15

II. SPICY PEACH IS A PUBLIC ACCOMMODATION AND AS A RESULT IS SUBJECT TO THE ADA ………………………………………………………………16

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A. This Court Should Affirm the Decision of the District Court, Finding Spicy Peach to be a Public Accommodation Under the Minority Approach………………………...17

B. Even if This Court Follows the Majority Approach, There is a Sufficient Nexus Between Spicy Peach’s Website, and its Brick and Mortar Store.……………..........22

C. The Fifth Circuit’s Obscure Approach Requiring a Physical Place to be a Public

Accommodation Should Be Discounted as a Matter of Public Policy.……………...29 CONCLUSION…………………………………………………………………………………..30 APPENDIX…………………………………………………………………………………….....A

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TABLE OF AUTHORITIES United States Supreme Court Cases Daniel v. Paul, 395 U.S. 298 (1969)…………………………………………………………………………..18 Hormel v. Helvering, 312 U.S. 552 (1941)…………………………………………………………………………..13 Mathews v. Weber, 423 U.S. 261 (1976)……………………………………………………………………………8 PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001)……………………………………...................................................18, 22 Thomas v. Arn, 474 U.S. 140 (1985)……………………………………………………………………7, 13, 14 United States v. Raddatz, 447 U.S. 667 (1980)……………………………………………………………………………9 United States Courts of Appeals Cases Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996 (11th Cir. 1997)………………………………………………………………....15 Brintley v. Aeroquip Credit Union, 936 F.3d 489 (6th Cir. 2019)…..……….…………………………………………….......27, 28 Carparts Distrib. Ctr., Inc. v. Auto. Wholesalers Assoc. of New England, Inc., 37 F.3d 12 (1st Cir.1994)…………………………………………………………………..…23 Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir.1999)…………………...……………………………………………..24 Haynes v. Dunkin’ Donuts LLC, 741 Fed. App’x 752 (11th Cir. 2018)…………………………………………................passim Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227 (10th Cir. 2016)…………………………………………………………...….20 Lorin Corp. v. Goto & Co., 700 F.2d 1202 (8th Cir. 1983)………………………………………………………………....8

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Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016)……………….………………………………………………...29 Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co., 268 F.3d 456 (7th Cir.2001)…………………………………...……………………………..21 Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 1999)……………………………………………………………………19 Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988)……………………………………………………………….…10 Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019)……………………………………………………..…..26, 27, 28 United States v. Johnston, 258 F.3d 361 (5th Cir. 2001)……………………………………………………………7, 8, 10 United States v. George, 971 F.2d 1113 (4th Cir. 1992)………………………………………………………………7, 9 United States v. Shami, 754 F.2d 670 (6th Cir. 1985) ………………………………………………………………….9 Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000)………………………………………………………………..23 Williams v. McNeil, 557 F.3d 1287 (11th Cir. 2009)………………………………………………………………10 United States District Court Cases Amadasu v. Ngati, No. 05-CV-2585 RRM LB, 2012 WL 3930386 (E.D.N.Y. Sept. 9, 2012)…………………..12 Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381 (E.D.N.Y. 2017)………………..............................................................20 Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870 (N.D. Ohio 2018)……………………………………………………….28 Del-Orden v. Bonobos, Inc., 17 CIV. 2744 (PAE), 2017 WL 6547902 (S.D.N.Y. Dec. 20, 2017)………………...19, 20, 29 Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315 (S.D. Fla. 2017)………...……………………………………………..24

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Gomez v. Gen. Nutrition Corp., 323 F. Supp. 3d 1368 (S.D. Fla. 2018)…………………………………………….....24, 27, 28 Gorecki v. Hobby Lobby Stores, Inc., No. CV 17-1131-JFW(SKX), 2017 WL 2957736 (C.D. Cal. June 15, 2017)………….….....28 Haynes v. Kohl’s Dep’t Stores, Inc., 391 F. Supp. 3d 1128 (S.D. Fla. 2018)…………………………………………………….....24 Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015)…………..………………………………..…………...20, 21 Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006)...……………………………………………………...23 Slovin v. Sunrun, Inc., No. 15-CV-5340 YGR, 2017 WL 2902902 (N.D. Cal. July 7, 2017)………………………..14 Wells Fargo Bank N.A. v. Sinnott, No. 2:07-CV-169, 2010 WL 297830 (D. Vt. Jan. 19, 2010)………………………....10, 11, 14 State Court of Appeal Cases Hensley v. Punta Gorda, 686 So. 2d 724 (Fla. 1st DCA 1997)…………………………………………………………16 Wimberly v. Sec. Tech. Group, Inc., 866 So. 2d 146 (Fla. 4th DCA 2004)……………………..…..………...…………………….16 Constitutional Provisions U.S. Const. art. III…………………………………………………………………………………7 Statutes 42 U.S.C. § 12101………………………………………………………………………...……...16 42 U.S.C. § 12102………………………………………………………………………………..16 42 U.S.C. § 12181…………………………………………………………………………...passim 42 U.S.C. § 12182……………………………………………………………..……………..16, 17 28 U.S.C. § 636……………………………………………………………………………………8

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FED. R. CIV. P. 68………………………………………………………………………………...14 Miscellaneous Recreation, MERRIAM-WEBSTER, https://www.merriamwebster.com/dictionary/recreation (last visited Sept. 21, 2020)………………………………………………………………………..….22 S. REP. NO. 96-74 (1979)………………………………………………………………………….7 U.C.C. § 9-102…………………………………………………………………………………...21

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STATEMENT OF THE ISSUES

I. Whether the district court properly considered Fauci’s novel legal argument which was not

submitted to or considered by the magistrate judge; and

II. Whether Spicy Peach, Inc.’s website is a place of public accommodation under the

Americans with Disabilities Act in whole or in part.

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STATEMENT OF THE FACTS I. Factual Background Anthony Fauci (“Fauci”) is exactly the type of person whom the American Disabilities Act

(“ADA”) intended to protect. Fauci was born with a hearing impairment, rendering him completely

deaf. R. at 3, 9. As a result, Fauci relies heavily on aids such as closed captioning to function the

same as able-bodied Americans. R. at 9. Without the help of such aids, Fauci struggles to enjoy

the simplest of activities such as watching videos. R. at 9.

On March 15, 2019, Fauci attempted to rent a video titled “Home Alone 2: Quarantined

Together” from an adult video rental website, www.spicypeachrentals.com. (“Spicy Peach”).1 R.

at 3–4, 10. Spicy Peach’s brick and mortar store debuted prior to its website in 2000. R. at 3, 9.

After sales began to decline as streaming technology progressed, Spicy Peach’s website debuted

in 2015 to operate in tandem with its brick and mortar store. R. at 4, 10.

Spicy Peach’s website allows customers to rent and stream adult videos completely online

through web browser or “Smart” TV, similar to video services such as Amazon Prime Video. R.

at 4, 10. Online rentals from Spicy Peach are available for 48 hours after the customer has

commenced streaming. R. at 10. Videos that are rented at Spicy Peach’s physical brick and mortar

store come on a physical DVD and must be returned 48 hours after they are rented. R. at 10.

Upon attempting to rent “Home Alone 2: Quarantined Together,” Fauci discovered that

the video did not provide closed captioning. R. at 10. He then attempted to rent three additional

adult videos from Spicy Peach, only to discover that none of them provided closed captioning. R.

at 4. Since none of the videos provided this standard aid, they were completely inaccessible to him

because of his disability. R. at 4. Without closed captioning, Fauci cannot understand the dialogue

1 “Spicy Peach” refers to both Spicy Peach, Inc.’s brick and mortar store, and www.spicypeachrentals.com.

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and as Fauci’s complaint states, “[a]s a parody of the famous ‘Home Alone’ franchise, dialogue

plays a critical role in developing the plot” and Fauci cannot “enjoy the movie without closed

captioning due to his hearing impairment.” R. at 10.

While Spicy Peach’s website is separate from its brick and mortar store, and not all videos

are available in both places, many of the same videos are. R. at 4. The very first video that Fauci

rented, “Home Alone 2: Quarantined Together,” is available both online and at Spicy Peach’s brick

and mortar store. R. at 4.

Spicy Peach’s website also has features that facilitate the use of its brick and mortar store

such as the option to purchase gift cards, as well as location information. R. at 4.

Online transactions completed through Spicy Peach’s website are separate from in store

transactions, and do not allow for videos to be rented online and picked up in store; however, the

gift cards purchased on Spicy Peach’s website can be used in its physical store. R. at 4.

Fauci is bringing this action against Spicy Peach, alleging that its website is in violation of

the ADA because it fails to provide closed captioning. R. at 4, 11.

II. Procedural Background

On April 1, 2019, Fauci, proceeding pro se, filed an action against Spicy Peach in the

United States District Court for the District of Emory. R. at 11. On July 1, 2019, the parties filed

cross motions for summary judgment. R. at 3. Then, on July 7, 2019, the district court referred the

matter to a magistrate judge for review and recommendation (“R&R”). R. at 11. Fauci never filed

an objection to Spicy Peach’s motion for summary judgment and instead moved for additional

time to conduct discovery. R. at 11. Fauci, still proceeding pro se, was unable to sort through all

discovery and was denied a second extension of time, but was instead given until September 1,

2019, to oppose Spicy Peach’s summary judgment motion. R. at 11. In early August, Coron &

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Varis, LLP, began representing Fauci pro bono. R. at 11. In the short period of representation, the

newly appointed counsel reviewed the lengthy discovery and filed the opposition to Spicy Peach’s

motion for summary judgment. R. at 11. The motion for summary judgment inadvertently left out

an important legal argument. R. at 11. On October 15, 2019, Fauci was granted a stay of

adjudication of Spicy Peach’s summary judgment motion and was granted an extension for

discovery. R. at 11–12.

On January 27, 2020, the magistrate judge issued an R&R recommending that Spicy

Peach’s motion for summary judgment be granted and the case dismissed. R. at 12. The R&R

notified the parties that any objections to it needed to be filed by February 10, 2020. R. at 12. On

February 1, 2020, Fauci’s counsel filed an electronic letter for extension of time to object to the

R&R. R. at 12. However, due to an error from the district court, the letter was not received. R. at

12, 15. On February 14, 2020, the district court adopted the R&R. R. at 12. On February 20, 2020,

Fauci filed a motion opposing the district court’s adoption of the R&R, which contained a new

legal argument not raised before, and one of first impression for the District of Emory and the

Thirteenth Circuit. R. at 12–13, 16.

The district court, having not received Fauci’s letter for extension of time, vacated its

Memorandum and Order adopting the R&R and granted Fauci’s extension. R. at 12. It then

considered Fauci’s new legal argument and objection to the R&R de novo and granted his request

for declaratory relief and injunction against Spicy Peach. This appeal by Spicy Peach followed. R.

at 1, 24.

SUMMARY OF THE ARGUMENT I. Fauci’s novel legal argument was properly considered by the district court and thus the

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judgement below should be affirmed for three main reasons. First of all, the United States

Constitution (“U.S. Constitution”) has guaranteed all citizens of this country that their federal

claims will be heard and decided by an Article III judge with life tenure. Magistrate judges, unlike

district court judges, are not Article III judges.

Second of all, the Federal Magistrate Act (“FMA”) serves to provide help to district court

judges whose dockets are often overflowing with cases. However, the FMA is not intended to do

away with the constitutionally mandated requirements imposed on Article III judges. Thus, a party

who does not raise an argument before a magistrate judge does not waive the right to do so entirely.

The FMA does not have a waiver, Congress did not intend for that result, and the U.S. Constitution

certainly does not support that argument. What the FMA does state is that a party has the right to

de novo review of their claim by a district judge. De novo review of any claim a party brings before

a district is supported by a close reading of the U.S. Constitution and the FMA in combination.

Although Circuits have left broad discretion to the district courts in deciding when to grant de novo

review, this approach leaves litigants in different states with an uneven and unequal application of

federal law.

Lastly, although the FMA was enacted to increase efficiency in federal courts, it was never

meant to do so at the expense of a litigant’s constitutionally guaranteed safeguards. Thus, Fauci’s

right to have his argument heard before an Article III judge on an unsettled and undeveloped area

of law far outweighs the need for efficiency in our court system.

II. This Court should affirm the decision of the United States District Court for the District of

Emory and adopt the Minority Approach concerning Public Accommodations under Title III

because Spicy Peach fits the description under 42 U.S.C. § 12181. Where entities must fall under

at least one category under Title III to be deemed a Public Accommodation, Spicy Peach falls

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under four. Spicy Peach is (1) a Place of Exhibition or Entertainment, (2) a Sales or Rental

Establishment, (3) a Service Establishment; and (4) an Exercise or Recreation Establishment. As

a result, Spicy Peach is subject to ADA regulations and must reasonably accommodate disabled

individuals.

Spicy Peach is (1) a Place of Exhibition or Entertainment because its videos serve to

entertain its users, and while courts have argued that the proposed accommodation must not alter

the nature of the event, users must opt to turn closed captioning on; (2) a Sales or Rental

Establishment because the purpose of Spicy Peach’s website is to rent videos; (3) a Service

Establishment because its rental videos provide an intangible benefit to its customers; and (4) an

Exercise or Recreation Establishment because consumers rent videos for their own enjoyment and

relaxation at home.

If this Court follows the Majority Approach, utilizing the Nexus Test, Spicy Peach must

still be deemed a Public Accommodation and be subjected to following the ADA because there is

a sufficient nexus between its brick and mortar store and its website. A sufficient nexus exists

because (1) Spicy Peach’s website allows for products to be purchased online, such as rental

videos, and gift cards; (2) the barrier created due to the lack of closed captioning is exponential

because Fauci cannot enjoy videos without closed captioning; (3) the website provides more than

just information about the store — it provides rental services, gift card purchase options, and

location information; (4) the website impedes access to its physical location because any

reasonable person who rents a video from Spicy Peach’s website, and discovers its lack of closed

captioning, would reasonably assume this is the case for all of their videos both online and in its

physical stores, and would not go to the physical store as a result; and (5) the website facilitates

the use of its physical store because gift cards can be purchased online for use in stores.

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Lastly, the obscure approach adopted by the Fifth Circuit requiring a physical place for

Public Accommodation status should be discounted as a matter of public policy because Congress

expected that Title III’s broad language would adapt as technology progressed.

ARGUMENT

I. FAUCI’S NOVEL LEGAL ARGUMENT WAS PROPERLY CONSIDERED BY THE DISTRICT COURT. It is expressly guaranteed in the U.S. Constitution, that “[t]he judicial Power of the United

States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may …

establish.” U.S. Const. art. III. Article III holds that judges “of the supreme and inferior Courts,”

will hold their positions “during good Behaviour, and shall, at stated Times, receive for their

Services, a Compensation, which shall not be diminished during their Continuance in Office.” Id.

This constitutional provision safeguards a litigants’ right to have his or her claim “decided before

[a] judge who [is] free from potential domination by other branches of government.” United States

v. Johnston, 258 F.3d 361, 367 (5th Cir. 2001). Simply put, it guarantees an individual’s “personal

right to have his case heard by an Article III judge.” Id. It is this right that constitutionally

empowers and indeed requires district courts to consider novel legal arguments raised by a party,

even if not submitted to or considered by a magistrate judge. See United States v. George, 971

F.2d 1113, 1118 (4th Cir. 1992).

A. The FMA and Article III of the U.S. Constitution Compel District Courts to Consider All Novel Legal Arguments Raised Before it.

Congress enacted the FMA to alleviate the case load of district court judges and provide

litigants greater access to federal courts through the auxiliary use of magistrate judges. See Thomas

v. Arn, 474 U.S. 140, 145 (1985); see also S. REP. NO. 96-74, at 2 (1979) (explaining that “under

the supervision of the district courts” magistrate judges “assist the judges of these courts in

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handling an ever-increasing caseload.”). In creating the magistrate judge, Congress vested in the

district courts the power to assign magistrates “such additional duties as are not inconsistent with

the Constitution and laws of the United States.” 28 U.S.C. § 636. Thus, because magistrate judges

are not Article III judges, to maintain compliance with the U.S. Constitution, “there must be both

the appearance and the reality of control by Article III judges over the interpretation, declaration,

and application of federal law.” Johnston, 258 F.3d at 368.

1. The FMA does not support the argument that Fauci waived the right to raise a new legal argument before the district court.

Turning to the relevant language of the FMA, it states that:

Within fourteen days after being served with a copy, any party may serve and file

written objections to such proposed findings and recommendations as provided by

rules of court. A judge of the court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which

objection is made … [and] may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. The judge may also

receive further evidence….

28 U.S.C. § 636 (emphasis added). Absent from this language is any indication that by failing to

object to a magistrate’s R&R, a party waives the right to do so entirely. See Lorin Corp. v. Goto

& Co., 700 F.2d 1202, 1205 (8th Cir. 1983) (“[I]f Congress had wished such a drastic consequence

to follow from the missing of the ten-day time limit, it would have said so explicitly.”). Moreover,

an argument for waiver is foreclosed by the U.S. Supreme Court opinion in Mathews v. Weber

explaining that a magistrate’s recommendation has no “presumptive weight” and that a “district

judge is free to follow it or wholly to ignore it, or, if he [or she] is not satisfied, [the district judge]

may conduct the review in whole or in part anew.” 423 U.S. 261, 271 (1976). To read a waiver

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into the FMA would be to go directly against the FMA, the U.S. Supreme Court, and the U.S.

Constitution.

Here, the R&R stated that Fauci had fourteen days to file objections. R. at 12. It did not

state that failure to object was a waiver of any of Fauci’s rights. Moreover, Fauci dully filed an

extension to object to the R&R, thus showing his intent to object and not waive his rights. R. at

12. More importantly, not Fauci nor his counsel, could be charged with knowing that in this district,

a failure to object to the R&R would be interpreted as a waiver.

2. The district court is constitutionally compelled to grant de novo review to Fauci’s novel legal argument.

Article III of the U.S. Constitution requires that federal judicial power be vested in judges

with life tenure—thus making a district court’s de novo review both statutorily and constitutionally

required. United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985).

i. The Fourth Circuit’s approach is most equitable and closely complies with the intent of the FMA and the U.S. Constitution.

The FMA instructs that district courts shall make a de novo determination of those portions

of a magistrate’s R&R to which objection is made. 28 U.S.C. § 636. De novo review “entails

consideration of an issue as if it had not been decided previously” and “requires the district court

to reconsider the issue entirely.” George, 971 F.2d at 1118. In interpreting this language, the Fourth

Circuit decided that since district courts must review de novo any issue to which an objection is

made, it follows from this principle that, a party must also “be permitted to raise before the court

any argument as to that issue that it could have raised before the magistrate.” Id.

This is also the correct approach in securing that the entire process takes place under the

district court’s total control and jurisdiction, as the U.S. Constitution intended. United States v.

Raddatz, 447 U.S. 667, 681 (1980). It is the district court judge, and not the magistrate judge, who

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has the ultimate power, and perhaps obligation, to make the final decision on the issuance of an

appropriate order. Johnston, 258 F.3d 361 at 368. To find otherwise would be to allow district

court judges to delegate and limit their own responsibilities by refusing to review a party’s good

faith argument based on a procedural rule.

Thus, the district court correctly followed the Fourth Circuit’s approach in deciding it was

compelled to review Fauci’s legal argument de novo.

ii. Discretionary approach is inappropriate because it does not provide sufficient constitutional safeguards.

The First, Second, and Eleventh Circuits’ approach is based on discretion. These circuits

interpret the FMA to give the ultimate adjudicatory power over dispositive motions to the district

courts “while granting the ‘widest discretion’ on how to treat the recommendations of the

magistrate.” Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009).

While at first this Court may be persuaded to see the discretionary approach as the right

balance between all interests at play, a rule of law cannot serve its purpose if it is merely symbolic.2

In Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., the First Circuit held that the

“discretionary view” allows for a district judge to exercise sound discretion where needed in

deciding to excuse a party’s failure to raise an argument. 840 F.2d 985, 989 (1st Cir. 1988).

Simultaneously however, the court then states that parties are not “permitted to present new

initiatives to the district judge.” Id. at 990. The court concludes by holding “categorically[,] that

an unsuccessful party is not entitled as of right to de novo review by the judge of an argument

never seasonably raised before the magistrate.” Id. at 990–91. A court that has “broad discretion”

2 Broad discretion has largely come to mean that district judges are insulated from ever having to rehear a party’s argument. See Wells Fargo Bank N.A. v. Sinnott, No. 2:07-CV-169, 2010 WL 297830, at *3 (D. Vt. Jan. 19, 2010) (collecting cases in which the Second Circuit found no abuse of discretion for the district court’s refusal to admit or hear new evidence and arguments.).

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but which also categorically rules that parties are not allowed to present new arguments to the

district judge, has no discretion at all.

Moreover, discretion is too highly subjective to each individual court and judge and thus

cannot guarantee a litigant any real and substantial safeguard against an abuse of that discretion.

Judges in New York, Maine, and Florida could all be deciding to exercise discretion in

significantly different ways and thus depriving litigants in their courts, of rights they would be

granted elsewhere. This is irreconcilable to the purpose of federal courts and federal law as a

whole.

iii. Even if the Court finds that district courts have discretion, Fauci is still entitled to de novo review under the Wells Fargo test.

Alternative to the “broad discretion” approach, the Second Circuit employs a balancing test

in determining whether the district court should exercise its discretion in hearing arguments not

raised before a magistrate. Wells Fargo Bank N.A, 2010 WL 297830, at *4.

The relevant factors include: (1) The reason for a party’s failure to raise the new legal

argument before the magistrate; (2) whether the new issue presents a “pure issue of law” with no

need for additional fact-finding; (3) “whether efficiency and fairness militate in favor or against

consideration of the new argument; and (4) whether manifest injustice will result if the new

argument is not considered.” Id.

The first factor inquiries into the party’s reason for failing to raise new legal arguments

before the magistrate judge. Understanding the timeline of Fauci’s case is especially important for

this factor. Shortly after August 1, 2019, Fauci retained counsel after having proceeded pro se

since the inception of his litigation. R. at 12. Fauci’s counsel came into the case scrambling to

make up for a missed deadline to oppose Spicy Peach’s motion for summary judgment—which it

did. R. at 12. Then, on January 27, 2020, the magistrate judge released his R&R. R. at 12. Fauci

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had 14 days to object to the magistrate judge’s R&R. R. at 12. Prior to the 14 days elapsing, he

requested an extension to object to the R&R. R. at 12. By the district court’s own admission, due

to a clerical error on the court’s part, Fauci’s letter requesting an extension was never received,

and thus, the R&R was adopted as if Fauci had never objected. R. at 12, 15. Short of the Court’s

clerical mishap, this issue would not be before this Court today.

Moreover, on October 15, 2019, Fauci’s counsel requested an extension for discovery. R.

at 12. The request was granted, and counsel was given until January 13, 2017 to conduct discovery.

R. at 12. However, less than two weeks later, on January 27, 2020, the magistrate judge issued the

R&R recommending that Fauci’s case be dismissed against him without allowing counsel an

opportunity to use the newly discovered evidence to advocate for Fauci. See R. at 12. By the

magistrate judge granting the extension for discovery but then proceeding to recommend the

dismissal of Fauci’s case before that discovery could be used, the magistrate opened the door to

Fauci having to raise his arguments before the district court. Had counsel been given the

opportunity to make use of the discovery extension, all of Fauci’s arguments would have been

heard by the magistrate judge. Thus, the first factor weighs in Fauci’s favor.

Factors two through four also weigh in favor of Fauci. The new issue raised does not

require any new factfinding, but rather can be resolved by the fact findings of the magistrate judge.

R. at 18. Additionally, Fauci is no longer pro se and therefore does not present the threat of a

litigant without counsel attempting to make difficult legal arguments in incoherent ways. See

Amadasu v. Ngati, No. 05-CV-2585 RRM LB, 2012 WL 3930386, at *2 (E.D.N.Y. Sept. 9, 2012).

Rather, Fauci did everything he needed to do. He found counsel, asked for extensions, had counsel

respond to Spicy Peach’s motion for summary judgment, and requested a stay of adjudication. R.

11–12. Even if Fauci’s diligent efforts fall short of being perfect, when measured against the

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magistrate’s failure to allow a reasonable opportunity to use the discovery and the district court’s

failure to receive Fauci’s request for an extension, it is clear that justice requires a clean slate for

Fauci.

Lastly, Fauci’s novel legal argument implicates an area of law for the Thirteenth Circuit

which has not yet been settled. It requires a higher level of scrutiny and precision from the Court

in order to achieve a just result, as it is not an issue easily governed by well-established law. R. at

20. Its importance carries great weight not only for our legal system but also for disabled

individuals like Fauci who’s well-being far outweigh a procedural rule. See Thomas, 474 U.S. at

155 (procedural defaults may be excused in the interest of justice.).

B. Judicial Efficiency Does Not Outweigh a Litigant’s Right to Constitutional Safeguards.

While the FMA was passed for the purpose of increasing judicial efficiency, it was never

intended for that goal to be met at the expense of constitutional guarantees rooted in Article III of

the U.S. Constitution.

Rules of practice and procedure are devised to promote the ends of justice, not to

defeat them. A rigid and undeviating judicially declared practice under which

courts of review would invariably and under all circumstances decline to consider

all questions which had not previously been specifically urged would be out of

harmony with this policy. Orderly rules of procedure do not require sacrifice of the

rules of fundamental justice.

Hormel v. Helvering, 312 U.S. 552, 557 (1941).

Moreover, while this Court may rightfully so be concerned with the workload associated

with the Fourth Circuit’s approach of compelled de novo review, to say that this approach would

open the flood gates to opportunistic litigants who want a second chance at arguing their case, is

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an overstatement of the realities of our legal system where settlements, not trials, are the

encouraged and preferred method of conflict resolution. See Slovin v. Sunrun, Inc., No. 15-CV-

5340 YGR, 2017 WL 2902902, at *1 (N.D. Cal. July 7, 2017) (“The ‘plain purpose of Rule 68 is

to encourage settlement and avoid litigation’”); see also FED. R. CIV. P. 68(d) (punishing a party

who does not take accept a reasonable settlement offer.).

Congress, in its enactment of the FMA, did not preclude further review by a district judge

sua sponte or at the request of a party. Thomas, 474 U.S. at 145. Certainty, if Congress intended

to prioritize efficiency over justice, it would have included said limitations or expressly written a

waiver into the statute—however, it did not. Instead, the result has been a long existing circuit split

leaving litigants with an unequal administration of justice throughout the U.S.

Magistrate judges play a vital role in providing access to federal courts. They accomplish

that by sorting through the record, researching the law, and providing a solid recommendation to

the district judge. Here, that goal of efficiency has been met and satisfied. This is especially true

where, as here, the new legal issues raised are purely legal questions with no additional need for

factfinding. Wells Fargo Bank N.A., 2010 WL 297830, at *3. This court should not go as far as

establishing a rule of procedure by which district judges stepping in and doing their jobs pursuant

to the U.S. Constitution would be considered inefficient. Surely, Congress did not want this result

either by vesting full final power on the district judges under the FMA.

District judges under the FMA, are bound to review de novo a party’s legal argument

notwithstanding its submittal to the magistrate. The magistrate judge is a tool of convenience and

efficiency whose role is not diminished by a district judge having the ultimate responsibility to

review and decide a case. Fauci’s novel legal argument was properly considered by the district

judge.

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C. The Doctrine of Excusable Neglect Must be Applied Due to the District Court’s Clerical Error

The same result would be reached yet again under the Doctrine of Excusable Neglect. For

that inquiry, a similar four factor test is deployed which asks “the danger of prejudice to the

[nonmovant], the length of delay and its potential impact on judicial proceedings, the reason for

the delay, including whether it was within the reasonable control of the movant, and whether the

movant acted in good faith.” Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 997–98 (11th

Cir. 1997).

Here, there is no danger of prejudice to Spicy Peach. It is simply faced with having to

defend against the same arguments that Fauci would have made to the magistrate judge had he

been given an opportunity to make use of discovery and had his request for extension not been

accidentally disregarded by the district court. See discussion infra Section (A)(2)(iii).

There is also no substantial delay since the newly raised issues are strictly questions of law.

R. at 18. Lastly, the district court’s clerical error was completely outside the control of Fauci or

his counsel. R. at 15.

As a result of the district court’s adaptation of the magistrate’s R&R, prior to receiving

Fauci’s objections to it, the focus has been on whether the FMA requires that the district judge

consider any objections not timely made to the magistrate’s R&R. Having made it clear that it was

not Fauci’s or his counsel’s fault that his request for an extension was not received, the Court

should find that excusable neglect occurred here and thus, the district court did not err in reviewing

Fauci’s novel legal argument. R. at 12, 15.

For the foregoing reasons, the judgment below should be affirmed.

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II. SPICY PEACH IS A PUBLIC ACCOMMODATION AND AS A RESULT IS SUBJECT TO THE ADA. The ADA was established in 1990 to “provide a clear and comprehensive national mandate

for the elimination of discrimination against individuals with disabilities; [and] to provide clear,

strong, consistent, enforceable standards addressing discrimination against individuals with

disabilities.” 42 U.S.C. § 12101(b)(1),(2). The ADA prescribes 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. The ADA accomplishes this by providing “a clear and

comprehensive national mandate for the elimination of discrimination against individuals with

disabilities.” See Hensley v. Punta Gorda, 686 So. 2d 724, 727 (Fla. 1st DCA 1997) (quoting 42

U.S.C. § 12101(b)).

For ADA protections to apply, a person must have a disability. See Wimberly v. Sec. Tech.

Group, Inc., 866 So. 2d 146, 147 (Fla. 4th DCA 2004) (quoting Toyota Motor Mfg., Ky., Inc. v.

Williams, 534 U.S. 184, 195 L.Ed.2d 615 (2002)). Merely having an impairment does not qualify

a person as being disabled for purposes of the ADA. See id.

Disability under the ADA includes: “A physical or mental impairment that substantially

limits one or more of the major life activities of such individual.” See id. at 147 (quoting 42 U.S.C.

§ 12102(2)).3

Title III of the ADA expressly forbids entities that are deemed to be public

accommodations from discriminating against persons with disabilities. 42 U.S.C. § 12182(a).

3 The ADA encompasses hearing as a major life activity. As a result, the hearing impaired are a protected class under the ADA. 42 U.S.C. § 12102(2)(a).

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This Court should affirm the decision of the United States District Court for the District of

Emory which held that Spicy Peach is a Public Accommodation. The District Court followed the

Minority Approach concerning Public Accommodations supported by the First and Seventh

Circuits. If this Court; however, follows the Majority Approach, utilizing the Nexus Test,

supported by the Sixth, Ninth, and Eleventh Circuits, Spicy Peach must still be classified as a

Public Accommodation. Lastly, the obscure approach adopted by the Fifth Circuit requiring a

physical place to be considered a Public Accommodation should be discounted as a matter of

public policy.

A. This Court Should Affirm the Decision of the District Court, Finding Spicy Peach to be a Public Accommodation Under the Minority Approach.

The Minority Approach, supported by the First and Seventh Circuits follows a

methodology, which looks to the twelve categories set forth under Title III of the ADA for

ascertaining whether something is a Public Accommodation. See 42 U.S.C § 12182. The ADA

being the predominant body that governs individuals with disabilities, sets forth this criterion. See

id. This Court would be remiss to not plainly follow the parameters the ADA established. In

searching for a different approach, the door opens for entities to find creative arguments that will

allow them to weasel their way out of accommodating disabled Americans.

As mentioned, Title III sets forth twelve categories and entities need only fall under one

category to be deemed a Public Accommodation by law. Spicy Peach falls under four. See 42

U.S.C. § 12181(7). This Court should incontestably follow this criterion and upon doing so, this

Court will find that Spicy Peach is a Public Accommodation.

While the ADA does not explicitly include entertainment service websites in one

of the twelve categories, Spicy Peach unquestionably falls under: (C) Place of Exhibition

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or Entertainment; (E) Sales or Rental Establishment; (F) Service Establishment; and (L)

Exercise or Recreation. See id.

Place of Exhibition or Entertainment

In analyzing the language established under Title III stating that “a motion picture house,

theater, concert hall, stadium, or other place of exhibition or entertainment” are Public

Accommodations under the ADA, this Court will find that Spicy Peach fits this description. See

42 U.S.C. § 12181(C) (emphasis added).

Courts have found that Places of Exhibition or Entertainment, “‘customarily presents films,

performances, athletic teams, exhibitions, or other sources of intertainment which move in

commerce.’” Daniel v. Paul, 395 U.S. 298, 305–06 (1969) (emphasis added). Spicy Peach

indisputably fits this description as it is a forum which provides customers with adult films. See R.

at 3. Additionally, the films that Spicy Peach provides its customers with, offer entertainment, as

consumers purchase the videos in order to entertain themselves. See id.

Furthermore, in PGA Tour, Inc. v. Martin, the United States Supreme Court found golf

courses to be a Public Accommodation under Title III because they are places of Exhibition or

Entertainment. 532 U.S. 661, 688 (2001) (holding that prohibiting handicapped individuals from

using golf carts violated the ADA because golf courses are a public accommodation.). In reaching

its decision, the Court rationalized that in analyzing the twelve categories under Title III for Public

Accommodations, “legislative history [] should be construed liberally to afford people with

disabilities equal access to the wide variety of establishments available to the nondisabled.” Id. at

662. The Court also reasoned that the use of golf carts did not fundamentally alter the nature of

the event. See id. at 664. Likewise, adding the option to utilize closed captioning on adult videos

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would not fundamentally alter Spicy Peach’s videos. A closed captioning option would only serve

to enhance the experience of viewing the adult videos for those who opt to utilize this feature.

Importantly, including a closed captioning feature would not obstruct the enjoyment of

Spicy Peach’s videos nor fundamentally alter them for those who do not wish to utilize closed

captioning because closed captioning would not be applied automatically. Rather, users would

need to opt to turn closed captioning on.

Sales or Rental Establishment

Upon analyzing the language Title III outlined concerning Sales or Rental Establishments,

which states that “a bakery, grocery store, clothing store, hardware store, shopping center, or other

sales or rental establishment” are Public Accommodations under the ADA, this Court will find

the Spicy Peach fits this description as well. See 42 U.S.C. § 12181(E) (emphasis added).

Concerning Sales or Rental Establishments, “many of the private entities

that Title III defines as ‘public accommodations’—such as a ‘bakery, grocery store, clothing store,

hardware store, [or] shopping center,’ as well as a ‘travel service, ... gas station, office of an

accountant or lawyer, [or] pharmacy,’ sell goods and services that are ordinarily used outside the

premises.” Del-Orden v. Bonobos, Inc., 17 CIV. 2744 (PAE), 2017 WL 6547902, at *11 (S.D.N.Y.

Dec. 20, 2017) (citing Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 1999)). Spicy Peach

sells rental videos, which are goods, that consumers use outside of the premises. See R. at 3.

Arguably, rental adult videos are ordinarily used in the home. This means, the goods that Spicy

Peach rents to its customers are goods that are ordinarily used outside the premises. See R. at 3.

While Spicy Peach operates an online e-commerce website, “when describing the entities

that sell goods and provide services to the public, the word ‘place’ is never used, and the statute

makes evident that it covers every ‘sales or rental establishment’ and ‘service establishment.’”

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Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017) (citing 42 U.S.C.

§ 12181(7)(E)–(F)); see also R. at 3. The word “place” lacking also “suggests that the

accommodation must be available to the public but not necessarily at a physical place open to the

public.” Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 572 (D. Vt. 2015).

Moreover, “given Congress’s intention that the ADA be read broadly in light of its

remedial aims and that it be construed to keep pace with changing technology, the term

‘other sales or rental establishment’ can be fairly read in today’s world dominated by e-commerce

to encompass a commercial website.” Del-Orden, 2017 WL 6547902 at *11. However, even if the

Court finds that a physical place is vital, Spicy Peach operates a physical brick and mortar store,

which operates in tandem with its website. See R. at 3.

Service Establishment

Title III states that “a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel

service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer,

pharmacy, insurance office, professional office of a health care provider, hospital, or other service

establishment” are Public Accommodations under the ADA. See 42 U.S.C. § 12181(F) (emphasis

added).

In its plain meaning, Service Establishments under Title III are defined as establishments

that provide a service. See Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1231 (10th Cir.

2016). The Court in Levorsen, specified that Service Establishments consist of “conduct or

performances that assists or benefits someone or something.” See id. The Court provided a list of

establishments it believed would constitute Service Establishments including “laundromats, dry-

cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors,

gas stations, lawyers’ offices, accountants’ offices, pharmacies, insurance offices, health care

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providers’ professional offices, and hospitals.” See id. at 1231–32. The Court’s philosophy in

Levorsen was that Service Establishments include “a place of business or a public or private

institution that, by its conduct or performance, assists or benefits someone or something or

provides useful labor without producing a tangible good for a customer or client.” See id. at 828.

Spicy Peach’s website offers rental videos for purchase, which provides an intangible

benefit to its customers. Spicy Peach’s website is intangible computer software and its rental

service provides its customers with the benefit of entertainment.4

The fact that Spicy Peach’s website is in question, rather than its physical brick and mortar

store, is not determinative in ascertaining Service Establishment status under Title III. See Scribd

Inc., 97 F. Supp. 3d at 570 (“Congress clearly contemplated that ‘service establishments’ could

include providers of services that do not require a person to physically enter a structure or site.”).

The site that the sale of the service takes place is irrelevant. Id. (citing Morgan v. Joint Admin. Bd.,

Ret. Plan of the Pillsbury Co. and Am. Fed’n of Grain Millers, AFL–CIO–CLC, 268 F.3d 456, 459

(7th Cir.2001)). What matters is “whether the … service is offered to the public.” See id. Spicy

Peach’s rental service is offered to public via internet Web browser or “Smart” TV where anyone

with internet or a “Smart” TV can access it. See R. at 4.

In Scribd, a “California-based digital library that operates a reading subscription services

(sic) on its website and on apps for mobile phones and tablets” was found to be a public

accommodation. See 97 F. Supp. 3d at 567. Scribd’s platform operates by customers paying “a

monthly fee to gain access to its collection of over forty million titles, including e-books, academic

papers, legal filings, and other user-uploaded digital documents.” See id.

4 The Uniform Commercial Code considers computer software a general intangible. See U.C.C § 9-102(42).

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Similarly, Spicy Peach operates an online digital catalogue of adult videos that are

available through its rental service via its website and on “Smart” TV. See R. at 3–4.

Exercise or Recreation

Upon analyzing the language of Title III which states that “a gymnasium, health spa,

bowling alley, golf course, or other place of exercise or recreation” are Public Accommodations

under the ADA, this Court will find Spicy Peach fits this description. See 42 U.S.C. §

12181(L) (emphasis added). When interpreting the language of the statute liberally, as the ADA

intended, Spicy Peach is undeniably a place of recreation. See PGA Tour, Inc, 532 U.S. at 676.

Webster’s Dictionary states that recreation consists of an activity that “refreshes” and “renews”

one’s health and mood through enjoyment and relaxation. See Recreation, MERRIAM-WEBSTER,

https://www.merriam-webster.com/dictionary/recreation?src=search-dict-box#learn-more (last

visited Sept. 21, 2020).

Spicy Peach is an adult video rental service, where consumers can rent videos for their own

enjoyment and relaxation at home. See R. at 3. It certainly would be unusual if a consumer were

to go out of their way to rent videos from Spicy Peach if they did not enjoy watching them.

Moreover, when Fauci attempted to rent “Home Alone 2: Quarantined Together” from Spicy

Peach’s website, he was upset when he discovered there was no closed captioning because as a

deaf American, Fauci needs this feature in order to enjoy the video. See R. at 10. Fauci’s experience

serves as direct evidence that consumers rent videos from Spicy Peach for enjoyment purposes,

showcasing that Spicy Peach is a forum that consumers utilize for enjoyment and recreation.

B. Even if This Court Follows the Majority Approach, There is a Sufficient Nexus Between Spicy Peach’s Website, and its Brick and Mortar Store.

The Sixth, Ninth, and Eleventh Circuits follow the Majority Approach concerning Public

Accommodations under Title III, which applies the Nexus Test. The Nexus Test provides that only

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websites with a sufficient nexus to a physical place are considered a public accommodation. See

generally Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006); Weyer

v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000); Haynes v. Dunkin’ Donuts

LLC et al, 741 Fed. App’x 752 (11th Cir. 2018) [hereinafter Haynes]. Although the Nexus Test

has more requirements, Spicy Peach still prevails under this Test.

Requirements of the Nexus Test

The Ninth Circuit has interpreted the language of Title III to suggest that a, “place of public

accommodation,” within the meaning of Title III, is a physical place. See Target Corp., 452 F.

Supp. 2d at 952 (citing Weyer, 198 F.3d at 1114) (concluding that places of public accommodation

are “actual, physical places.”).

The intention; however, is not to suggest that non-physical places can never be considered

places of Public Accommodations. In Target Corp., the Court asserted that Title III “applies to the

services of a place of public accommodation, not services in a place of public accommodation.”

Id. at 953 (citation omitted).

The Court further explained that “[t]o limit the ADA to discrimination in the provision of

services occurring on the premises of a public accommodation would contradict the plain language

of the statute.” See id. (citation omitted).

The Ninth Circuit has declined to join those circuits which have suggested that a “place of

public accommodation” may have a more expansive meaning. See id. at 952 (citing Carparts

Distrib. Ctr., Inc. v. Auto. Wholesalers Assoc. of New England, Inc., 37 F.3d 12, 19–20 (1st

Cir.1994)) (holding that “public accommodations” includes more than actual physical structures

and includes the defendant’s insurance company); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557,

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559 (7th Cir.1999) (noting, in dicta, that a “place of public accommodation” includes facilities that

are both physical and electronic, including websites.).

Since websites are not physical places, if this Court follows the Majority Approach, the

Court must find a sufficient nexus between Spicy Peach’s website and its brick and mortar store.

See e.g., Haynes v. Kohl’s Dep’t Stores, Inc., 391 F. Supp. 3d 1128, 1134 (S.D. Fla. 2018) (citing

Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315, 1320 (S.D. Fla. 2017)) (“[W]ebsites are

subject to the ADA if a plaintiff can establish a nexus between the website and the physical

premises of a public accommodation.”).

Courts have established the following factors in determining whether a website has a

sufficient nexus to a physical store: whether (1) the website provides a service of

the public accommodation like the ability to purchase or preorder products; (2) the alleged barrier

to access prevents the full use and enjoyment of services of the public accommodation; (3) the

website provides more than just information about the store; (4) the website impedes access to the

physical location; or (5) the website facilitates use of the physical stores. See Gomez v. Gen.

Nutrition Corp., 323 F. Supp. 3d 1368, 1376 (S.D. Fla. 2018). In applying these factors, Spicy

Peach incontrovertibly has a sufficient nexus between its physical brick and mortar store and its

website.

Service of the Public Accommodation

Considering the first factor, “whether the website provides a service of

the public accommodation like the ability to purchase or preorder products,” Spicy Peach satisfies

this as it operates a rental service where customers are able to rent and stream adult videos. See id;

R. at 10.

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In Haynes, the Court found that there was a sufficient nexus between Dunkin’ Donuts’

website and its physical store as it was contended that Dunkin’ Donuts’ website “‘provide[d]

access to’ and ‘information about … the goods, services, facilities, privileges, advantages or

accommodations of’ Dunkin’ Donuts.”’ 741 Fed. Appx. at 754.

In Haynes, the plaintiff, Dennis Haynes, suffered from blindness, and relied on screen

reading software to use the internet. Id. Upon attempting to utilize Dunkin’ Donuts’ website, which

allows consumers to locate physical Dunkin’ Donuts stores and purchase gift cards online, Haynes

quickly discovered the website was not compatible with his screen reading software. See id.

Haynes brought a claim against Dunkin’ Donuts alleging that they were in violation of Title III of

the ADA for failing to maintain its website with screen reading functions. See id.

Haynes is analogous to the present case. In Haynes, Haynes is disabled as prescribed by

the ADA because his visual impairment is so severe it affects his daily life activities and he is

unable to function without aids. See id. One such aid is his screen reading software, which helps

him navigate the internet. See id. This software does not guarantee him the ability to be able to

function via the internet, however. Haynes, 741 Fed. Appx. at 754. For the software to work, each

individual website must follow the ADA and be compatible with the software. See id. Dunkin’

Donuts’ website does not comply with the ADA and as a result, Haynes is precluded from using

it. See id. Haynes alleged this was in direct violation of the ADA as Dunkin’ Donuts’ website

created a nexus to its physical brick and mortar stores. See id. The Court found that a sufficient

nexus was created due to Dunkin’ Donuts’ website providing the ability to purchase gift cards and

locate physical stores. See id.

Similarly, Fauci is disabled pursuant to the ADA because he has a hearing impairment,

making closed captioning on videos necessary for his use and enjoyment. See R. at 3. As in Haynes,

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Spicy Peach’s website does not follow the ADA and provide accommodations for disabled

individuals. Here, those accommodations are in the form of closed captioning on videos. Thus,

Spicy Peach is discriminating against the hearing impaired and precluding them from use and

enjoyment of the videos on their website.

Spicy Peach’s website provides options for gift card purchases as did Dunkin’ Donuts’

website in Haynes. The Eleventh Circuit in Haynes found this sufficient for finding a nexus

between the website and physical brick and mortar locations. In the interest of preventing

discrimination against the disabled, this Court must follow the decision of the Eleventh Circuit

Court of Appeals and find that Spicy Peach’s website created a nexus with its physical brick and

mortar store.

The alleged barrier to access prevents the full use and enjoyment of services of the public accommodation.

Concerning the second factor, Spicy Peach created an enormous barrier by not providing

closed captioning on their online rental videos. See R. at 3. Since Spicy Peach’s online rental

videos do not provide closed captioning, Fauci is unable to enjoy the videos because he cannot

understand them due to his hearing impairment. See R. at 3. Fauci relies heavily on closed

captioning to enjoy videos as a result. See R. at 3.

Courts have found in several cases that where blind Americans have been unable to utilize

websites because they failed to comply with screen reading technology, this barrier prevented the

full use and enjoyment of services of public accommodations. See generally e.g., Robles v.

Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), cert. denied, 140 S. Ct. 122 (2019) (finding

that Domino’s Pizza’s website and app had a sufficient nexus to its physical store, and violated the

ADA by not complying with screen reading software.).

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The violation was clear to the courts in those cases because the blind was plainly prevented

from being able to enjoy these websites. See id. The barrier that the absence of screen reading

software presents to the blind, is synonymous to the barrier that the absence of closed captioning

presents to the deaf. In both instances, disabled individuals are denied their essential aid, and

because they do not have such aid, they are barred from enjoying the websites.

The website provides more than just information about the store

Courts also consider how many features the website provides its users, beyond solely

providing information about the store. See Gomez, 323 F. Supp. 3d at 1376. In Brintley v. Aeroquip

Credit Union, the Court found a nexus between Credit Union’s website and its physical brick and

mortar store, where the website contained information about their membership eligibility and

services. 936 F.3d 489, 491 (6th Cir. 2019).

Spicy Peach’s website has a plethora of features that go far beyond solely providing

information about the store and its services. Spicy Peach’s website provides customers the option

to purchase gift cards which can be used either at its brick and mortar store or on its website. See

R. at 4. Spicy Peach’s website also has location information for customers to contact its brick and

mortar store. See R. at 10. It is evident that both the ability to purchase gift cards for use in store

and store location information alone are sufficient. See Haynes, 741 Fed. App’x at 754.

Spicy Peach’s website features go beyond just solely the ability to purchase gift cards and

providing location information, however. Spicy Peach’s website also includes the ability to rent

online videos for downloading or to stream through the customer’s Web browser or compatible

Internet-connected TVs, which are available for 48 hours after the customer has commenced

streaming or downloading. See R. at 10. As a result, it is apparent that Spicy Peach’s website

contains enough features that connect it to its physical store, to create a sufficient nexus. See

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Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870, 880 (N.D. Ohio 2018) (highlighting the

ability to make product purchases online); Gorecki v. Hobby Lobby Stores, Inc., No. CV 17-1131-

JFW(SKX), 2017 WL 2957736, at *1 (C.D. Cal. June 15, 2017) (finding that consumers can

purchase an array of products on the website, some of which are also available in Hobby Lobby

stores.).

The website impedes access to the physical location

Courts also inquire into whether the website impedes access to the physical location. See

Gomez, 323 F. Supp. 3d at 1376. In cases where websites have not complied with screen reading

software, the websites impede the blind from access to the physical stores as the screen reading

software is essential to attaining the store’s location. See e.g Haynes, 741 Fed. Appx. at 754;

Robles, 913 F.3d at 898; Brintley, 936 F.3d at 491.

While the impediment Spicy Peach’s website presents for the hearing impaired is not as

apparent as the impediments in prior cases concerning the blind, one still exists. Any reasonable

person who purchases a rental video from Spicy Peach’s website only to discover its lack of closed

captioning, would reasonably assume this is the case for all of their videos online and in its physical

stores. See R. at 3. Those who rely on closed captioning who attempt to rent a video from Spicy

Peach’s website and discover there is no closed captioning, would not likely bother traveling to

Spicy Peach’s physical store as, while the videos available for rent at Spicy Peach’s physical store

have closed captioning, there is no evidence that suggests this on the website. See R. at 3. As a

result, no reasonable person would think that things would be different at Spicy Peach’s physical

location, which in effect impedes their access to Spicy Peach’s physical location.

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The website facilitates use of the physical stores

Spicy Peach’s website facilitates use of its physical stores because while customers are

unable to pay for rentals online and pick them up at Spicy Peach’s brick and mortar store, they are

able to purchase gift cards online for use in Spicy Peach’s brick and mortar store. See R. at 10.

Moreover, Spicy Peach’s website contains location information, which facilitates customers being

able to locate its brick and mortar store. See id.

To reiterate, the Court in Haynes provided that the ability to purchase gift cards for use in

store and store location information are satisfactory to create a sufficient nexus. See 741 Fed.

App’x at 754.

C. The Fifth Circuit’s Obscure Approach Requiring a Physical Place to be a Public Accommodation Should Be Discounted as a Matter of Public Policy.

The Fifth Circuit has chosen to apply the principle that a physical place is necessary to

be considered a place of public accommodation. See generally Magee v. Coca-Cola

Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016). Under this principle, a website can never

be considered a place of public accommodation. See R. at 21.

This approach is so obscure, that other Circuits have not even considered it. Congress

expected that Title III’s broad language would “adapt as technology and modes of access

evolved.” Del-Orden, 2017 WL 6547902, at *9.

The types of accommodation and services provided to individuals with disabilities, under

Title III, “should keep pace with the rapidly changing technology of the times.” See id.

In rejecting this approach, the other Circuits must have understood the implications for

society. By using this approach, the Fifth Circuit has set the framework for discrimination to take

place online. Today’s globalized world is vastly online; in fact, there are entire communities built

Team AA

30

online. Spicy Peach understands this because their sales began to decline following their debut,

after streaming technology progressed. R. at 10.

Thus, it is vital that the Court does its part in upholding the values of the U.S. Constitution

in all aspects of life, not just the tangible aspects.

If this Court applies this approach, the consequences would be extreme. There would be

an influx of companies taking part in discrimination online because they would be able to get away

with it.

For the forgoing reasons, Fauci respectfully requests that this honorable Court affirm the

decision of the United States District Court for the District of Emory and apply the Minority

Approach supported by the First and Seventh Circuits.

CONCLUSION

WHEREFORE, for the reasons set forth above, Appellee asks this Court to affirm the

decision of The United States District Court for the District of Emory.

Dated: September 21, 2020.

Respectfully submitted,

/s/: Team AA

Counsel for Appellee

Team AA

A

APPENDIX

Public Accommodation Statute:

(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; (B) a restaurant, bar, or other establishment serving food or drink; (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (D) an auditorium, convention center, lecture hall, or other place of public gathering; (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (G) a terminal, depot, or other station used for specified public transportation; (H) a museum, library, gallery, or other place of public display or collection; (I) a park, zoo, amusement park, or other place of recreation; (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

42 U.S.C. § 12181 (7) (emphasis added).