C.A. No. 19-CV-01203 _______________

IN THE

UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT FALL TERM 2020 _______________

ANTHONY FAUCI

Plaintiff-Appellee,

v.

SPICY PEACH, INC.

Defendant-Appellant. _______________

On Appeal to the

United States Court of Appeals for the Thirteenth Circuit _______________

BRIEF FOR APPELLEE

_______________

Team D, Counsel for Appellee

i

TABLE OF CONTENTS

Page TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITES ............................................................................................................ ii QUESTIONS PRESENTED .......................................................................................................... 1 STATEMENT OF THE FACTS ..................................................................................................... 2 SUMMARY OF THE ARGUMENT .............................................................................................. 5 ARGUMENT AND AUTHORITIES ............................................................................................. 7 THE DISTRICT COURT’S DECISION TO HEAR A NOVEL ARGUMENT UPON OBJECTION TO THE REPORT AND RECOMMENDATIONS WAS PROPER ............................................................................................ 7

A. The District Court of Emory Judge was Required to Hear Novel Arguments Under the Statutorily Required De Novo Determination. .................................................................... 8

B. Refusing to Hear Novel Arguments Unpresented to the Magistrate Judge After Proper Objection to an R&R would be an Abuse of Discretion by the District Court Judge. ...... 10

C. Barring the District Court Judge from Hearing Novel Arguments Unheard by the Magistrate Judge Would Frustrate the Purpose of the Federal Magistrates Act……........13

SPICY PEACH’S WEBSITE IS A PLACE OF PUBLIC ACCOMMODATION SUBJECT TO THE ADA .......... 16

A. The Majority Nexus Test is an Inferior Approach Since its Requirement of a Physical Place Ignores the Spirit of the ADA .................................................................................. 18

B. The Broad Minority Approach Better Fulfills the ADA’s Purpose to Allow Disabled Individuals to Participate Fully and Equally in Mainstream Society ............................... 21

CONCLUSION ............................................................................................................................. 25

ii

TABLE OF AUTHORITIES

Page(s) CASES: Carparts Distribution Ctr., Inc. v. Auto Wholesaler’s Ass’n New England, Inc.

37 F.3d 12 (1st Cir.1994) ....................................................................................... 17, 19, 22 Castillo v. Jo-Ann Stores, LLC.

286 F. Supp. 3d 870 (N.D. Ohio 2018 ) ...................................................................... 18-19 Gil v. Winn-Dixie Stores, Inc.

257 F. Supp. 3d 1340 (S.D. Fla. 2017) ............................................................................. 23 Gorecki v. Hobby Lobby Stores, Inc..,

CV 17-1131-JRW(SKX), 2017 WL 2957736 (C.D Cal. June 15, 2017) .......................... 22 Hall v. Burns,

213 Conn. 446 (1990) ........................................................................................................ 10 Haynes v. Dunkin’ Donuts LLC,

741 Fed. Appx. 752 (11th Cir. 2018) ................................................................................ 18 Matthews v. Weber,

423 U.S. 261 (1976) ...................................................................................................... 8, 13

Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed’n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456 (7th Cir. 2001) ............................................................................................. 22

Nat’l Ass’n of the Deaf v. Nexflix. Inc.,

869 F. Supp. 2d 946 (D. Mass. 2012) .................................................................... 17, 22-23 Nat’l Fed’n of the Blind v. Scribd Inc.,

97 F. Supp. 3d 565 (D. Vt. 2015) ..................................................................... 16-17, 22-23 Nat’l Fed’n of the Blind v. Target Corp.,

452 F. Supp. 2d 946 (N.D. Cal 2006) .................................................................... 18-19, 21 Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Cooper & Lybrand, LLP.,

322 F.3d 147 (2d Cir. 2003) ........................................................................................ 11-12 PGA Tour, Inc. v. Martin,

532 U.S. 661 (2001) .................................................................................................... 17, 19 Robles v. Domino's Pizza, LLC,

913 F.3d 898 (9th Cir. 2019), cert. denied, 140 S. Ct. 122 (2019) .................................... 21

iii

Thomas v. Arn, 474 U.S. 140 (1985) ............................................................................................................ 8, 13-14 United States v. George,

971 F.2d 1113 (4th Cir. 1992) ......................................................................................... 7, 9 United States v. Howell,

231 F.3d 615 (9th Cir. 2000) ........................................................................................ 10-12 United States v. Raddatz,

447 U.S. 667 (1980) .................................................................................................. 8-9, 13 Virgin Atl Airways, Ltd. V. Nat’l Mediation Bd.

956 F2d 1245 (2d Cir. 1992) ............................................................................................. 11 Wells Fargo Bank, N.A. v. Sinnott.,

No. 2:07–CV–169, 2010 WL 297830 (D. Vt. January 19, 2000) ............................... 11-12 Weyer v. Twentieth Century Fox Film Corp.,

198 F.3d 1104 (9th Cir. 2000) ........................................................................................... 18 Williams v. McNeil,

557 F.3d 1287 (11th Cir. 2009) ................................................................................... 14-15 Zdanok v. Glidden Co.,

327 F.2d 944 (2d Cir. 1964) .............................................................................................. 11 STATUTES: 28 U.S.C.S § 636 ............................................................................................................. 7-8, 10, 13 42 U.S.C.A § 12101 ....................................................................................................................... 22 42 U.S.C.A § 12181 ....................................................................................................................... 16 28 U.S.C.A § 12182 ................................................................................................................. 16, 19 OTHER AUTHORITIES: Ann Marie Estevez, J.D. et al., Public accommodations—Place of public accommodation, § 5:2 Public Accom. Under ADA (2019) ............................................................................................... 16 Christopher Mullen, Places of Public Accommodation: Americans with Disabilities and the Battle for Internet Accessibility, 11 Drexel L. Rev. 745, 756 (2019) .......................................... 16, 18, 22 Nikki D. Kessling, Why the Target “Nexus Test” Leaves Disabled Americans Disconnected: A Better Approach to Determine Whether Private Commercial Websites Are “Places of Public Accommodation”, 45 Hous. L. Rev. 991, 1009 (2008) ........................................................... 17, 19

iv

LEGISLATIVE MATERIALS: H.R Rep. 101-485, pt. 2 (1990) ............................................................................................... 17, 22

1

QUESTION PRESENTED

I. Under the Federal Magistrates Act, was it permissible for the district court judge to hear

novel arguments previously unpresented to a magistrate judge?

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

Americans with Disabilities Act, requiring Spicy Peach, Inc. to provide closed captions

on their online videos for hearing impaired individuals?

2

STATEMENT OF THE FACTS

On July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act

into federal law. This law aimed at helping individuals with disabilities avoid discrimination based

on those disabilities, and to enable them to partake in the full enjoyment of mainstream American

life. Before the ADA’s passage, businesses had no legal duty to make their business accessible for

disabled individuals. The passage of the ADA was a monumental step toward equality for people

with disabilities.

Anthony Fauci is an individual with a hearing impairment that has left him completely

deaf. (R. at 3). Mr. Fauci, like any other hearing individual, enjoys visual entertainment. Unlike

other hearing individuals though, Mr. Fauci must depend on the use of captions to fully enjoy

visual entertainment, such as movies. (R. at 4). Closed captions are typically used in visual

entertainment to convey the verbal messages being shown. These captions can be for both

conservations and for background sound. They are integral for fully understanding the material

being presented. Mr. Fauci sought out a form of visual entertainment from Appellant, Spicy Peach,

Inc. on March 15, 2019. (R. at 3-4). Spicy Peach is a video rental store, with both a physical

storefront and a website to serve its customers. (R. at 3).

Both the website and physical storefront offer the same types of entertainment, mainly

adult entertainment videos, to be rented. (R. at 4). Customers can choose to rent and stream these

videos online in their own homes by using the Spicy Peach website, or they can go to the storefront

and retain physical copies of the videos to use for their viewing purposes. (R. at 4). Anthony Fauci

decided to use the online service to rent the video “Home Alone 2: Quarantined Together.” He

soon discovered that the video did not include closed captions. (R. at 4). Thinking this was a simple

3

flaw in the service, he rented three additional videos, finding that they were all inaccessible to him

because of his hearing impairment and the lack of closed captions. (R. at 4).

All of the videos available for rental within Spicy Peach’s physical store do provide closed

captions for customer use, but none of the videos available on website do. (R. at 4). This forces a

person with a hearing impairment, like Mr. Fauci, to go to the physical store to receive a video

with closed captions provided. In other words, to be able to partake in the full enjoyment of the

service Spicy Peach provides, he must go to the physical store. He cannot use the online service.

Under these circumstances, Mr. Fauci filed a lawsuit in the District of Emory complaining that the

absence of closed captions on the online videos is a violation of Title III of the Americans with

Disabilities Act. (R.at 4). He filed this suit pro se. (R. at 11).

After Mr. Fauci filed this suit, both he and Spicy Peach filed for summary judgment. (R. at

11). The District Court of Emory assigned the motion to Honorable Andrew Cuomo to serve as

the magistrate judge. (R. at 11). The judge instructed the parties to file oppositions to the motions

by August 1, 2019. Mr. Fauci did not oppose the motion, but rather moved for additional time to

conduct discovery. (R at 11). Since Mr. Fauci had already been given 90 days to complete

discovery, Judge Cuomo denied the motion but gave Mr. Fauci additional time to oppose the

motion. (R. at 11).

During August of 2019, Coron & Varis, LLP took on Mr. Fauci as a pro bono client. (R. at

11). The attorneys were able to sort through all the discovery before the deadline and file the

opposition to the motion, but because of the short timeline the attorneys missed a key legal

argument. (R. at 11). The attorneys then filed to stay the adjudication and requested reconsideration

of the motion to extend discovery. (R. at 11-12). This additional time was granted, giving Mr.

Fauci’s legal team until January 13, 2020, to complete discovery. (R. at 12). Judge Cuomo issued

4

an R&R recommending the district court grant Spicy Peach’s motion. (R. at 12). Under Rule 72(b)

of the Federal Rules of Civil Procedure, objections to the R&R were due February 10, 2020. (R.

at 12).

On February 1, counsel for Anthony Fauci filed a letter electronically to seek more time to

object to Judge Cuomo’s R&R. (R. at 12). Unfortunately, due to an e-filing error the letter was not

filed until after the February 10th deadline. (R. at 12). The District Court adopted Judge Cuomo’s

R&R on February 14, 2020, unaware of the letter submitted by counsel. (R. at 12). Then on

February 20, 2020, counsel for Mr. Fauci filed a motion to oppose the District Court of Emory’s

adoption of the R&R. (R. at 12). This attack on the adoption included new legal grounds that had

not been heard by the magistrate. (R. at 12). In the motion Fauci stated that websites are always

subject to the ADA, and he included affidavits and exhibits. (R. at 12).

After reviewing the motion and the information it contained, the District Court vacated the

Memorandum and Order and reviewed Fauci’s objections in a de novo review. (R. at 12). This led

to the District Court finding for Mr. Fauci and granting an injunction and declaratory relief. (R. at

24).

Spicy Peach, Inc. now appeals to the Thirteenth Circuit for review of the District Court of

Emory’s findings that Spicy Peach is a place of public accommodation and subject to Title III of

the ADA and for review of the decision of the district court to hear Fauci’s novel legal argument

not presented to the magistrate.

5

SUMMARY OF THE ARGUMENT

The Court should uphold the decision of the Thirteenth Circuit and find that the district

judge should have heard Mr. Fauci’s novel legal argument even though the issue was not brought

before magistrate judge, and that Spicy Peach, Inc’s website is a place of public accommodation,

making the website subject to Section III of the Americans with Disabilities Act.

First, the district court did not err in hearing Mr. Fauci’s novel legal argument even though

it was not presented to the magistrate judge. The Federal Magistrates Act’s purpose is to create

judicial efficiency while still balancing the procedural safeguards the Constitution provides for

litigants. The use of magistrate judges is to lighten the load for a district judge, not to be the final

determining factor in an individual’s claim.

A district court is required to consider novel legal arguments when there is a timely

objection to a magistrate’s R&R under the required de novo determination. While this does not go

so far as to require a district court to conduct a full live hearing on all the issues, it does require

the novel claims to be considered by the district court, even if they were not heard by the magistrate

judge.

Even if hearing novel arguments is not required under the Federal Magistrates Act, it would

be an abuse of discretion to not hear these arguments after a timely objection to the R&R. Because

Mr. Fauci raised his objections to the R&R in a timely manner, the court had every right to hear

these are arguments, and not hearing them would have been an abuse of discretion.

The underlying purpose of the Federal Magistrates Act would be disregarded if district

courts were not permitted to hear novel legal arguments not brought before the magistrate. The

point of the Act was to lighten the load for district courts, not to replace district court judges. The

6

final adjudicator of fact and law must still be the district court judge. Barring this would be

unconstitutional, and it would overvalue efficiency to a litigant’s right to a just result.

Next, Spicy Peach’s website should be considered a place of public accommodation under

the Title III of the ADA. Congress’s intent for the ADA was to eliminate discrimination against

individuals with disabilities and allow those individuals to enjoy the privileges of mainstream

society. This broad intent and the timing of the passage of the ADA show that the law was meant

to evolve with technology and social norms. While the internet was not a mainstream aspect of

American life at the time of the passage of the ADA, it is now a central part of everyday life.

The court should find that the majority “nexus” test is unnecessarily burdensome on

disabled plaintiffs and is therefore the incorrect test to be implemented in Title III claims involving

websites. Requiring a nexus to a physical storefront ignores the original intent Congress set out for

the ADA at is passage. In order to remain faithful to the sweeping purpose of the ADA, this court

should find this narrow nexus test falls short of achieving equality for people with disabilities.

Nevertheless, even if the nexus test is implemented, Mr. Fauci’s claim is sufficient to meet this

standard.

Rather than the applying “nexus” test for Title III claims of the ADA, the court should

establish that websites are always subject to the ADA. Since websites are an integral part of daily

life, providing a means of entertainment, as well as an outlet to retain a variety of necessary

services, they should clearly be subject to Title III of the ADA. Therefore, this court should affirm

the finding that Spicy Peach’s website is subject to the ADA.

7

ARGUMENT AND AUTHORITIES I. THE DISTRICT COURT’S DECISION TO HEAR A NOVEL ARGUMENT UPON OBJECTION TO THE

REPORT AND RECOMMENDATIONS WAS PROPER.

This court should affirm the decision of the District Court of Emory to hear

novel arguments presented in an objection to the Report and Recommendations,

“R&R” of the magistrate judge. Under 28 USCS § 636, a judge “shall make a de novo

determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” When Mr. Fauci objected to the R&R

given to the District Court of Emory with specific objections that included novel

arguments, he was entitled to a de novo determination of those sections. The accepted

meaning of a de novo determination is “consideration of an issue as if it had not been

decided previously,” this allows novel arguments to be heard upon objection. United

States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992).

Even if the de novo determination is up to the district court’s discretion, the

barrier to keep out novel arguments is still a high one. The Federal Magistrates Act

does not include any language barring novel legal arguments not heard before by a

magistrate. Under 28 USCS § 636, “[a] judge of the court may accept, reject, or modify,

in whole or in part, the findings or recommendations made by the magistrate

[magistrate judge]. The judge may also receive further evidence or recommit the

matter to the magistrate [magistrate judge] with instructions.” Without specific

language barring the new legal arguments to be heard, it was clearly within the spirit

of the Federal Magistrates Act, and the need to ensure just results in our court

system.

8

Lastly, completely barring the ability to hear novel arguments would frustrate

the purpose of the Federal Magistrates Act by taking power away from both the de

novo review and the district court. The Federal Magistrates Act was amended to

specifically add the mandatory de novo review of an R&R upon objection. The purpose

of the act is to “give district judges ‘additional assistance’ in dealing with a caseload.”

Thomas v. Arn, 474 U.S. 140, 152 (1985), (citing Mathews v. Weber, 423 U.S. 261, 268

(1976)). The purpose of the act was not to withhold novel arguments from the district

court when the R&R had proper objection. District courts can and do hear novel

arguments while still creating an efficient judicial system.

A. The District Court of Emory Judge was Required to Hear Novel Arguments Under

the Statutorily Required De Novo Determination.

The District Court of Emory had an obligation to conduct a de novo determination of the claim

presented when Mr. Fauci made a timely objection to the R&R. Under 28 USCS § 636, “[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”. When Fauci timely objected

to the R&R the district court properly accepted a de novo determination of the contested part of

the magistrate’s R&R, as is mandatory under the statute. Congress clearly intended for a de novo

review of issues properly objected to in a magistrate’s R&R, as seen with the use of the word

“shall” making this a requirement rather than a permissible suggestion. 28 USCS § 636.

A de novo determination does not bar the hearing of novel arguments. In Raddatz, a man

appealed his criminal conviction from a district court based on a magistrate’s recommendation.

United States v. Raddatz, 447 U.S. 667, 670 (1980). He made timely objections to the

recommendation, specific to the evidentiary hearings, held by the magistrate. Id. The district court

9

reviewed the record of the testimonies and upheld the recommendation. Id. Raddatz’s appeal

questioned whether review of the record of testimonies met the requirements of a de novo

determination. Id. The Court explained that “[t]he phrase ‘de novo determination’ has an accepted

meaning in the law. It means an independent determination of a controversy that accords no

deference to any prior resolution of the same controversy.” Id at 692. The Court found that a live

hearing of testimony was not required by the de novo determination standard. Id. In the present

case, Mr. Fauci is not requesting a new hearing of the issues, staying within the standard set in

Raddatz.

A de novo determination requires hearing novel arguments. In George, a man accused of

racketeering and attempted murder objected to a magistrate’s recommendation to deny a motion

to suppress evidence. United States v. George, 971 F.2d 1113, 1116 (4th Cir. 1992). The objection

brought forth new arguments previously unheard by the magistrate. Id. The district court refused

to hear the new arguments. Id. The Court of Appeals for the Fourth Circuit, however, stated that

“de novo review entails consideration of an issue as if it had not been decided previously. It

follows, therefore, that the party entitled to de novo review must be permitted to raise before the

court any argument as to that issue that it could have raised before the magistrate.” Id at 1118.

The Court in Raddatz still found that there was a required de novo review of the record but

there was not a need for a new hearing of testimonies. Mr. Fauci’s case does not require new

evidence, so a de novo review of a new argument would still be proper. This is reflected in George,

where the Fourth Circuit Court of Appeals found that a de novo determination, like a de novo

review, required novel arguments to be heard upon proper objections to an R&R. Like George,

Fauci objected in a timely manner to the R&R submitted by the magistrate and was entitled to a

de novo review by the statute.

10

B. Refusing to Hear Novel Arguments Unpresented to the Magistrate Judge After Proper Objection to an R&R would be an Abuse of Discretion by the District Court Judge.

If a de novo review does not necessitate the hearing of novel arguments, a district court has

limited discretion to refuse to hear these arguments. Under 28 USCS § 636, “[a] judge of the court

may accept, reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate [magistrate judge]. The judge may also receive further evidence or recommit the matter

to the magistrate [magistrate judge] with instructions”. The Federal Magistrate’s Act explicitly

states that a court may hear additional evidence but does not explicitly bar new arguments upon

review. Congress’s specific use of the word “may” suggests a motivation for consideration of novel

arguments, while limiting a district court’s discretion to reject them outright. “Sound discretion,

by definition, means a discretion that is not exercised arbitrarily or willfully, but with regard to

what is right and equitable under the circumstances and the law.” Hall v. Burns, 213 Conn. 446,

447 (1990).

The district court judge must exercise discretion in refusing to consider a new argument. In

Howell, a man was charged with possession of drugs and intent to distribute. United States v.

Howell, 231 F.3d 615, 620 (9th Cir. 2000). A magistrate judge was given charge of the case and

handed down a report suggesting denial of a motion to suppress a confession. Id. Howell timely

objected to the report and gave new factual allegations in his objection. Id. However, the district

court denied hearing the new arguments from the objections in its de novo review. Id. The district

court judge stated that he “did not exercise [his] discretion to allow the record to be supplemented.”

Id at 623. The appellate court agreed with this decision and upheld the denial of a new evidentiary

hearing. Id. The Ninth Circuit emphasized, “that in making a decision on whether to consider

newly offered evidence, the district court must actually exercise its discretion, rather than

summarily accepting or denying the motion.” Id at 621. Since the plaintiff in the case, “neglected

11

to present any facts to the magistrate judge and failed to adequately explain this deficiency, the

district court did not abuse its discretion.” Id at 623.

The Federal Magistrate Act grants the discretion to hear a novel argument if

no other statute or case law is present. In Color Tile, a company brought several

charges which were dismissed in District Court after summary judgment. Official

Comm. Of the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322

F.3d 147, 156 (2d Cir. 2003). After dismissal, the company filed a Rule 54(b) Motion

to amend its complaint. Id. The court refused the amendment and found that the

district court had a limited ability in “reconsideration of earlier decisions under Rule

54(b) by treating those decisions as law of the case, which gives a district court

discretion to revisit earlier rulings in the same case.” Id at 167. The appellate court

said the district court was not “required, nor without good reason permitted” to

reconsider these arguments. Id. (citingZdanok v. Glidden Co., 327 F.2d 944, 953 (2d

Cir. 1964)). The court found that a number of factors are necessary to determine if

discretion is met. “[These] decisions may not usually be changed unless there is ‘an

intervening change of controlling law, the availability of new evidence, or the need to

correct a clear error or prevent a manifest justice.’” Id. (citing Virgin Atl. Airways,

Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).

Once an objection is made, the district court in a de novo review has limited

discretion to deny hearing novel arguments. In Wells Fargo Bank, the bank objected

to an R&R submitted by a magistrate judge raising a new argument previously

unheard by the magistrate judge. Wells Fargo Bank, N.A. v. Sinnott, No. 2:07–CV–

169, 2010 WL 297830 (D. Vt. January 19, 2000) (D. Vt. January 19, 2010). The district

12

court declined to hear the new argument raised in objection and stated that the

Federal Magistrate’s Act gave the judge the discretion to hear the novel argument.

Id at 5. The Second Circuit has set out a six-factor test to determine whether a judge’s

discretion to hear a novel argument is warranted:

(1) the reason for the litigant’s previous failure to raise the new legal argument; (2) whether an intervening case or statute has changed the state of the law: (3) whether the new issue is a pure issue of fact for which no additional fact-finding is required; (4) whether the resolution of the new legal issue is not open to serious question; and (6) whether manifest injustice will result if the new argument is not considered.

Id at 9.

As seen in Howell, a judge must exercise his actual discretion in rejecting a novel argument

upon a de novo hearing. This is the factual landscape here; the district court judge did decide to

hear the novel argument upon de novo review. After reviewing the reasonings given by Mr. Fauci,

the district court exercised sound discretion with what was right and equitable under the law. The

Federal Magistrate Act gives the district court judge the level of discretion to be used when making

these decisions. This is a different discretion from the one exercised in Color Tile, which came

from the Federal Rules of Procedure Rule 54(b). From this, we can see that the 6-factor test in

Wells Fargo Bank, which was based upon the test used to determine if there was an abuse of

discretion under FRCP 54(b), is not properly applied to an objection to a magistrate’s report. In

Mr. Fauci’s claim, a proper objection was made to a magistrate’s report which was not a final

accepted decision, this test is much too rigorous to show whether a district court judge should use

his discretion to hear novel arguments upon objection to an R&R. However, if this court applies

the Wells Fargo Bank test to this case, the test would weigh in Mr. Fauci’s favor to hear the novel

arguments previously unheard by the magistrate judge. This is seen in the decision by the district

13

court judge, who looked to this six-factor test and found that the test weighed in Fauci’s favor to

hear the novel arguments.

C. Barring the District Court Judge from Hearing Novel Arguments Unheard by the

Magistrate Judge would Frustrate the Purpose of the Federal Magistrates Act.

Barring the District Court of Emory to bar the hearing of novel arguments

upon objection to an R&R would go against the clear intention of the Federal

Magistrates Act. The purpose of the Federal Magistrate Act is to “give district judges

‘additional assistance’ in dealing with a caseload that was increasing far more rapidly

than the number of judgeships." Thomas v. Arn, 474 U.S. 140, 152 (1985), (citing

Mathews v. Weber, 423 U.S. 261, 268 (1976)). This growing caseload led to support

granted in the form of a magistrate to lighten the load, but that doesn’t take

jurisdiction away from the district court to hear whatever evidence it finds necessary

to ensure just results for the parties involved. In order to comply with Article III of

the Constitution, this support may only go so far, “delegation to a magistrate does not

violate U.S. Const. art III so long as the ultimate decision is made by the district

court.” United States v. Raddatz, 447 F.2d at 683. Barring the district court from

hearing novel arguments when a timely objection has been made to the magistrate’s

R&R creates a contradiction with the mandatory de novo review of the R&R.

Additionally this restriction of the court’s discretion under 28 USCS § 636 “to accept,

reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate,” would be facially incorrect. The original Federal Magistrates Act did not

include a mandatory de novo review when an objection was made to the magistrates

R&R; however, “[i]n 1976, Congress amended § 101 of the Federal Magistrates Act, 28

14

U. S. C. § 636. . . [to] provide that any party that disagrees with the magistrate's

recommendations "may serve and file written objections." Thomas v. Arn, 474 U.S.

140, 141-42 (1985). Congress was silent on whether these objections and de novo

review barred the ability to hear a novel argument. Even the federal rules of

procedure do not bar the hearing of novel arguments completely. Under the Federal

Rules of Civil Procedure a complaint, “may be revised at any time before the entry of

a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed.

R. Civ. P. 54(b). While 54(b) does not apply to objections to a magistrate’s R&R, this

demonstrates that Congress had an opportunity to write such a provision if it

intended to bar or to restrict the ability for a district court judge to hear novel

arguments upon de novo review.

Barring the district court from hearing novel arguments would disrupt the

balance between Article III of the Constitution and the Federal Magistrates Act. In

Williams, a man was convicted of armed robbery and kidnapping and sentence to

serve forty years in prison. Williams v. McNeil, 557 F.3d 1287, 1289 (11th Cir. 1289.)

After several appeals where the court affirmed the decision and denied post-

conviction relief. Williams filed a habeas petition arguing the timeliness of his post-

conviction relief petition. Id. The court referred the matter to a magistrate, who

asked Williams to file a response to the state’s assertion that the habeas petition was

time barred. Id. However, Williams failed to file on time. Id. The magistrate issued

an R&R finding that the habeas petition was time barred. Id. Williams objected, and

raised novel arguments unheard by the magistrate regarding the timeliness of the

15

habeas petition. Id at 1290. The judge refused to hear these novel arguments but

conducted a de novo review and found that the habeas petition was timed barred. Id.

Williams appealed, and argued that the district court judge was obligated to hear the

novel arguments upon objection to an R&R. Id. The appeals court looked to the

different options available to the district court judge, and found that in balancing the

judge’s discretion and the authority of Art III “[t]he district court retained the final

adjudicative authority and properly exercised its discretion in deciding whether to

consider any new arguments.” Id at 1292. The court stated that “the district court

acknowledged that it had discretion to consider Williams's timeliness argument but

declined to do so because Williams failed to respond to the magistrate's order

directing him to file a reply on the precise issue of timeliness.” Id.

In Williams, a man failed to timely file a response to the state’s claims to a

magistrate judge. This is dissimilar to our case, where Mr. Fauci timely responded to

the claims made by the opposing party. This is also different from this case because

the judge in Mr. Fauci’s case agreed to hear the novel arguments, recognizing that

under the idea that discretion lies with the district court judge, he could hear or deny

these novel arguments. However, under the scheme given by the eleventh circuit in

Williams, the balancing of the judge’s discretion and Art. III would require the judge

to decide whether to hear the novel arguments in Fauci’s case. Like in Williams, when

the district court judge agreed to hear the novel arguments he was acting in line with

the Federal Magistrate’s act and Art. III.

16

The district court’s decision to hear Fauci’s novel arguments upon objection

that were previously unheard by the magistrate judge was proper. Under the Federal

Magistrate Act the mandatory de novo hearing allowed the district court to hear the

novel arguments. Then, even if the district court had discretion to decide whether to

hear the novel arguments upon de novo review, the decision to hear the argument

was within that discretion.

II. SPICY PEACH’S WEBSITE IS A PLACE OF PUBLIC ACCOMMODATION SUBJECT TO THE ADA.

Three decades ago, Title III of the Americans with Disabilities Act (“ADA”) was enacted

so that “[n]o 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.A. § 12182 (West 1990). However, with the relatively recent

proliferation of online services in our society, the law on whether Title III applies to websites is

still up in the air. Ann Marie Estevez, J.D. et al., Public accommodations—Place of public

accommodation, § 5:2 Public Accom. Under ADA (2019). Circuit courts are currently split on the

issue, with some recognizing that websites are always subject to Title III, some holding that Title

III only applies to websites that have a connection to a physical storefront, and a scarce minority

holding that Title III never applies to websites. Christopher Mullen, Places of Public

Accommodation: Americans with Disabilities and the Battle for Internet Accessibility, 11 Drexel

L. Rev. 745, 756 (2019); See also Nat'l Fed'n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 569

(D. Vt. 2015).

The ADA lists twelve categories with numerous examples of places that could qualify as

“places of public accommodation.” See 42 U.S.C.A. § 12181 (West 1990). The examples given in

17

the statute were traditionally physical places when enacted in 1990. The ADA, however, does not

explicitly state that a place of public accommodation must be a physical place. Legislative history

makes clear Congress’s broader intent for the statute: “The purpose of Title III of the ADA, is ‘to

bring individuals with disabilities into the economic and social mainstream of American life ... in

a clear, balanced, and reasonable manner.’” Carparts Distribution Ctr., Inc. v. Auto. Wholesaler's

Ass'n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994) (citing H.R.Rep. No. 101-485, pt. 2, at

99 (1990)). As such, any entity should be considered subject to regulation under the ADA if it

affects commerce and falls within one of the twelve listed categories. Nikki D. Kessling, Why the

Target "Nexus Test" Leaves Disabled Americans Disconnected: A Better Approach to Determine

Whether Private Commercial Websites Are "Places of Public Accommodation", 45 Hous. L. Rev.

991, 1009 (2008); See also Carparts, 37 F.3d at 20; Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F.

Supp. 2d 196, 201 (D. Mass. 2012).

The purpose of the ADA is “to eliminate discrimination against disabled individuals, and

to integrate them ‘into the economic and social mainstream of American life.’” PGA Tour, Inc. v.

Martin, 532 U.S. 661, 675 (2001) (internal quotation omitted); Scribd Inc., 97 F. Supp. 3d at 573.

To accomplish this purpose, Congress understood that the law would need to evolve with

technology. See Nat'l Ass'n of the Deaf, 869 F. Supp. 2d at 200–01 (citing H.R. Rep. 101–485 at

108 (“[T]he Committee intends that the types of accommodation and services provided to

individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly

changing technology of the times.”)).

The internet has become a central aspect of mainstream American life since the passage of

the ADA. It is so prolific in our everyday affairs that we often take its resources for granted. We

shop for food, clothes, cars, furniture, insurance, homes, medical and legal services, and

18

entertainment online. We take part in religious services, visit with health professionals, attend

meetings, receive educations, communicate with family and friends, and find relationships online.

For disabled individuals like Anthony Fauci, the inability to move about freely on websites and to

benefit from the efficiency of online services presents a glaring inequality that should not be

tolerated in mainstream America. A website providing services to the general public discriminates

against disabled individuals if it does not provide them with equal access to the same conveniences

that everyone else enjoys. Every Spicy Peach customer benefits from the expediency and privacy

of being able to stream videos directly from Spicy Peach’s website, except for disabled customers

like Anthony Fauci. This is precisely the type of everyday inequality that the ADA sought to

remedy for disabled Americans. Spicy Peach’s website should be made to accommodate disabled

customers by providing closed captioning for its online videos, in order to fulfill the critical

egalitarian purpose of the ADA.

A. The Majority Nexus Test is an Inferior Approach Since its Requirement of a

Physical Place Ignores the Spirit of the ADA.

There are three approaches courts have used to evaluate whether a website should be

considered a “place of public accommodation” subject to Title III of the ADA: “(1) a narrow

interpretation, finding only physical structures are places of public accommodation, (2) a “nexus”

approach, requiring some connection between the website and a physical structure, and (3) a broad

interpretation, finding places of public accommodation do not need to be physical structures.”

Mullen, supra, at 756. The “nexus” test, usually attributed to the Second, Sixth, Ninth, and

Eleventh Circuits, is the majority approach taken, whereby a sufficient connection between the

services complained of and an actual physical place of public accommodation is required in order

for the online service to be subject to the ADA. Nat'l Fed'n of the Blind v. Target Corp., 452 F.

Supp. 2d 946, 952 (N.D. Cal. 2006); Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870, 881

19

(N.D. Ohio 2018); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir.

2000); Haynes v. Dunkin' Donuts LLC, 741 Fed. Appx. 752, 754 (11th Cir. 2018).

But the “nexus test” brings unnecessary confusion to the issue, allowing a loophole for

businesses to discriminate against people with disabilities by simply not having a physical

storefront, or by arguing that their online service is somehow not connected enough to their

physical storefront to require accommodation for the disabled. Kessling, supra, at 995. An

approach that leaves disabled people behind cannot be the correct test to be implemented. Under

this approach, “even on a website that meets the nexus test, only the portions that directly relate to

a physical storefront must abide by Title III.” Id. However, “it is clear that the purpose of the

statute is broader than mere physical access—seeking to bar actions or omissions which impair a

disabled person's ‘full enjoyment’ of services or goods of a covered accommodation.” Target

Corp., 452 F. Supp. 2d. at 954; 42 U.S.C. § 12182(a). The ADA is meant to be “‘construed liberally

to afford people with disabilities equal access to the wide variety of establishments available to

the nondisabled.’” Castillo, 286 F. Supp. 3d. at 874–75 (citing PGA Tour, 532 U.S. at 677). In

keeping with the ADA’s intent, “[i]t would be irrational to conclude that persons who enter an

office [or other physical storefront] to purchase services are protected by the ADA, but persons

who purchase the same services over the telephone or by mail [or on a website] are not. Congress

could not have intended such an absurd result.” Carparts, 37 F.3d at 19.

The nexus approach’s insistence on finding a sufficient connection to a physical location sends

an unbalanced message: that those with disabilities may only be entitled to a select amount of the

website’s conveniences, or none at all, regardless of the fact that those without disabilities are able

to enjoy the full services of the same website. In other words, the nexus approach is misguided,

because it favors a technicality that subverts the main purpose of the ADA—to bring those who

20

are disabled to an equal playing field and allow them the “full enjoyment” of services that the rest

of society is accustomed to having. Requiring the existence of a physical structure in order for the

ADA to apply to services offered to the public ignores the reality of most services as they exist in

the world today. Many businesses only exist online. At a time when it is customary to use online-

only services, demanding a nexus to a physical location is a retrograde approach that leads to

absurd and unequal results which Congress could not have intended.

Like many other citizens, Anthony Fauci sought to access the convenience of streaming videos

directly from Spicy Peach’s website instead of making a trip to the store’s physical location.

Because of his hearing disability and the lack of closed captioning on the videos, however, his

experience was inferior to that of every other customer. The ADA intended to remedy this very

type of everyday inequality. However, the application of the nexus approach threatens to deny him

the right that every other citizen enjoys. If his issues complained of—the content of the videos—

do not properly overlap with those elements that are judged to connect the website to the physical

store, then Mr. Fauci is denied the efficiency of the website while others are not. This unequal

result would be starkly inconsistent with the ADA’s policy and purpose. It does not matter whether

only a specific service complained of is sufficiently connected to a physical site. The crucial point

is that the disabled individual is missing out on the full enjoyment of the convenience that the

website provides. Because of the possibility of results inconsistent with the purpose of the ADA,

the majority nexus test is an inferior approach that should be retired in favor of the broader minority

view that websites are subject to the ADA regardless of the existence of a physical location.

Nevertheless, even if this Court chooses to adopt the nexus test, Spicy Peach’s website should

still qualify as a place of public accommodation subject to the requirements of the ADA. It is

established under this approach that in order to allege an ADA violation of an online service there

21

must be a nexus between the challenged service itself and the place of public accommodation.

Target Corp., 452 F. Supp. 2d at 952. The magistrate judge advised that Anthony Fauci did not

establish a sufficient nexus between the services complained of (the video content) and those items

that created a nexus to the physical store (the location and contact information and the ability to

purchase gift cards). (R. at 7). The judge remarked that the ability to purchase some of the same

items in store and online is most likely not sufficient to create a nexus. Id. However, the Ninth

Circuit in Robles v. Domino's Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), cert. denied, 140 S. Ct.

122 (2019), recently suggested that a sufficient nexus existed largely on that basis. Id. at 905. In

Robles, a blind customer claimed that Domino’s Pizza was in violation of the ADA because the

company's website and mobile application for ordering pizza were not fully accessible to him. The

court held that there was a sufficient nexus between Domino’s physical restaurants and the

company’s website and app because customers use the online services to locate nearby restaurants

and to order pizzas for at-home delivery or in-store pickup. Id. at 904 – 905.

Likewise, Anthony Fauci points to the similarity in content offered in Spicy Peach’s physical

location and website to show that a sufficient nexus exists. Just as a Domino’s customer can order

pizza online and choose to have it sent directly to their homes or to pick it up in the store, Spicy

Peach allows its customer to either order videos online to be directly streamed at home or to pick

up many of the same videos from the physical store. As such, even under the nexus test, Spicy

Peach’s website should also be held accountable to the ADA. At the very least, Spicy Peach should

be required to provide closed captioning online for the same content that is available in its stores.

B. The Broad Minority Approach Better Fulfills the ADA’s Purpose to Allow Disabled

Individuals to Participate Fully and Equally in Mainstream Society.

In contrast to the majority nexus approach, “[t]he First and Seventh Circuits have broadly

interpreted the statutory language of the ADA, acknowledging that ‘places of public

22

accommodation’ can be more than just physical structures.” Mullen, supra, at 761; Carparts, 37

F.3d at 19; Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed'n of Grain Millers,

AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001). Rather than require that the services

complained of are sufficiently connected to a physical location, the broader minority approach

requires “only that the web site falls within a general category listed under the ADA.” Nat'l Ass'n

of the Deaf, 869 F. Supp. 2d at 201.

The First and Seventh Circuit’s broad approach is faithful to the central purpose of the ADA,

which is “to provide a clear and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.” 42 U.S.C.A. § 12101 (West 1990). The

ADA’s legislative history and guidance from the Department of Justice indicate support for the

broader application of the law to websites. “Congress [] intended that the ADA ‘keep pace with

the rapidly changing technology of the times.’” Gorecki v. Hobby Lobby Stores, Inc., CV 17-1131-

JFW(SKX), 2017 WL 2957736, at *4 (C.D. Cal. June 15, 2017) (citing H.R. Rep. No. 101-485 at

108); Scribd Inc., 97 F. Supp. 3d at 574. Moreover, “[t]he DOJ has repeatedly affirmed that Title

III applies to websites that meet the definition of a public accommodation.” Gorecki, 2017 WL

2957736 at *4. “The [DOJ] explained that the Internet did not exist when Congress enacted the

ADA; thus, neither the text of the ADA nor the promulgating regulations specifically address

private websites. Nevertheless, in its view, ‘the statute's broad and expansive nondiscrimination

mandate reaches goods and services provided by covered entities on [w]ebsites over the

Internet.’” Id. at 5 (citation omitted).

It is essential to take a broad approach when evaluating whether a website is subject to the

ADA in order to be faithful to the statute’s comprehensive mandate. Nat'l Ass'n of the Deaf, 869

F. Supp. 2d 196, presents similar facts to the present case. There, plaintiffs brought suit against

23

Netflix, a well-known online video streaming service, claiming that the online service was a place

of public accommodation and that the company’s failure to provide closed captioning on its videos

violated the ADA. Id. at 200. The court held that Netflix’s “web site is a place of public

accommodation and Defendant may not discriminate in the provision of the services of that public

accommodation—streaming video—even if those services are accessed exclusively in the home.”

Id. at 202.

In Scribd Inc., 97 F. Supp. 3d at 575-76, the district court held that a digital library was a place

of public accommodation for purposes of the ADA. Id. at 576. The judge reasoned that because

the internet is a central aspect of everyday life, “excluding businesses that sell services through the

Internet from the ADA would ‘run afoul of the purposes of the ADA and would severely frustrate

Congress's intent that individuals with disabilities fully enjoy the goods, services, privileges, and

advantages available indiscriminately to other members of the general public.’” Id. (quoting Nat'l

Ass'n of the Deaf, 869 F.Supp.2d at 200).

As illustrated in Nat’l Ass’n of the Deaf and Scribd Inc., the broader purpose of the ADA

mandates that Spicy Peach’s website be considered a place of public accommodation, regardless

of any connection to a physical store. In today’s online-centered world, the ADA’s policy demands

a broad application of its categories of places in order to stay true to its mission to ensure disabled

individuals can enjoy the same services available to everybody else.

Furthermore, in a technology-driven society, it is a minor burden to accommodate disabled

individuals compared to the major burden that they face every day when unable to navigate

services over the internet. In Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017),

a visually impaired grocery store customer claimed that Winn-Dixie’s website was out of

compliance with the ADA, since it was not accessible to visually impaired individuals. Id. at 1342.

24

Making changes to Winn-Dixie’s website to bring it in line with ADA standards was not unduly

burdensome. Id. at 1350. Rather, “most of the accessibility issues c[ould] be corrected with simple

modifications of one or two source codes,” and the cost to make all necessary modifications was

only likely to be $37,000—a fraction of the $250,000 total that had been originally estimated. Id.

at 1346 – 1347. Even if the cost had been $250,000, the district court noted that this was irrelevant

in comparison to the cost Winn-Dixie made to open the website itself. Id. at 1347.

Anthony Fauci asks only for the same convenience of Spicy Peach’s online streaming service

that is readily accessible to other customers. Just as the cost to bring the Winn-Dixie grocery store

website into compliance with the ADA was not found to be unduly burdensome, neither should

the fear of cost or complication prevent this court from requiring Spicy Peach to modify its website

to rightfully accommodate its disabled customers. To uphold the ADA’s intent that disabled

individuals fully enjoy all of the services and privileges available to the general public, courts must

take the broad minority approach and consider websites places of public accommodation in their

own right. Spicy Peach’s website should be a place of public accommodation subject to ADA

requirements.

25

CONCLUSION

Appellee respectfully requests this Court uphold the decision of the District Court of Emory

concerning the permissibility of the district court hearing a novel argument not heard by the

magistrate judge and affirm that Spicy Peach’s website is a place of public accommodation and

therefore subject to Title III of the Americans with Disabilities Act.

Respectfully submitted,

Team D Counsel for Appellee