TEAM KK

No. 20-00238

IN THE

United States Court of Appeals for the Thirteenth Circuit

_________

ANTHONY FAUCI,

Plaintiff-Appellee,

v.

SPICY PEACH, INC.,

Defendant-Appellant.

_________

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRTEENTH CIRCUIT

_________

BRIEF FOR DEFENDANT-APPELLANT

_________

TEAM KK

Counsel for Defendant-Appellant, Spicy Peach, Inc.

TEAM KK

i

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

TABLE OF AUTHORITIES ......................................................................................................... iii

STATEMENT OF THE ISSUES.................................................................................................... 1

STATEMENT OF THE FACTS .................................................................................................... 2

I. Factual Background .............................................................................................................. 2

II. Procedural History ................................................................................................................ 3

SUMMARY OF THE ARGUMENT ............................................................................................. 6

I. Judicial Review .................................................................................................................... 6

II. American with Disabilities Act ............................................................................................ 6

ARGUMENT .................................................................................................................................. 7

I. THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EMORY

IMPROPERLY CONSIDERED MR. FAUCI’S NOVEL LEGAL ARGUMENT, WHICH

WAS NOT SUBMITTED TO OR CONSIDERED BY THE MAGISTRATE JUDGE. .... 7

A. This Court should reverse the District Court’s holding because Mr. Fauci waived

his right to appeal by not properly filing objections under the Federal Magistrate

Act and never raising his new legal argument. ....................................................... 8

B. The District Court incorrectly focused its argument on a de novo review standard

instead of following the majority view of waiver, which dictates that a failure to

object to the Magistrate Judge’s recommendations waives a party’s right to raise it

on appeal. .............................................................................................................. 10

C. Judicial efficiency and fundamental fairness weigh heavily in favor of this Court

overturning the District Court’s decision. ............................................................. 16

II. SPICY PEACH’S WEBSITE IS NOT A PLACE OF PUBLIC ACCOMMODATION

UNDER THE AMERICANS WITH DISABILITIES ACT. ............................................. 18

A. This Court should apply the majority approach followed by the Third, Sixth,

Ninth, and Eleventh Circuits. ................................................................................ 19

TEAM KK

ii

B. Under the majority approach, Spicy Peach’s website is not a place of public

accommodation because there is no nexus between the website and Spicy Peach’s

physical store. ....................................................................................................... 22

C. Even if this Court finds a nexus between Spicy Peach’s website and its physical

store—because of the gift cards and location information—there is no nexus

between the videos available in the store and online. ........................................... 25

D. If this Court applies the minority approach of the First and Seventh Circuits, this

Court should remand for further fact-finding. ...................................................... 26

III. REQUIRING SPICY PEACH TO PROVIDE CLOSED CAPTIONING PLACES AN

UNDUE BURDEN ON THE BUSINESS. ........................................................................ 27

CONCLUSION ............................................................................................................................. 29

TEAM KK

iii

TABLE OF AUTHORITIES

United States Supreme Court Cases

Jarecki v. G.D. Searle & Co., 467 U.S. 303 (1961) ...................................................................... 21

Cupp v. Naughten, 414 U.S. 141 (1973)......................................................................................... 8

Faretta v. California, 422 U.S. 806 (1975) ................................................................................... 15

McKaskle v. Wiggins, 465 U.S. 168 (1984) ................................................................................. 15

Singleton v. Wulff, 428 U.S. 106 (1976) ...................................................................................... 17

Thomas v. Arn, 474 U.S. 140 (1985) ..................................................................................... Passim

United States Court of Appeals Cases

Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666 (9th Cir. 2010) ..... 27

B & G Enterprises, Ltd. v. United States, 220 F.3d 1318 (Fed. Cir. 2000) .................................... 7

Borden v. Secretary of HHS, 836 F.2d 4 (1st Cir. 1987) .............................................................. 10

Carr v. Hutto, 737 F.2d 433 (4th Cir. 1984) ................................................................................. 14

Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999) ........................................... 27, 28

Earll v. eBay, Inc., 599 Fed. App’x 695 (9th Cir. 2015) .............................................................. 19

Ford v. Schering-Plough Corp., 145 F.3d 601 (3rd Cir. 1998) ..................................................... 19

Haynes v. Dunkin’ Donuts LLC, 741 Fed. App’x 752 (11th Cir. 2018) .......................... 19, 22, 24

John B. Hull, Inc. v. Waterbury Petroleum Products, Inc., 588 F.2d 24 (2d Cir. 1978) .............. 12

Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016) ............................. 22

McCarthy v. Manson, 714 F.2d 234 (2d Cir. 1983) ............................................................... 11, 12

Morgan v. Joint Admin. Bd., 268 F.3d 456 (7th Cir. 2001) ......................................................... 19

Neff v. Am. Dairy Queen Corp., 58 F.3d 1063 (5th Cir. 1995).................................................... 26

Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980) ..................................... 12

Passe v. New York City Dep't of Corr., 377 F. App'x 106 (2d Cir. 2010) ................................... 12

Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988)

............................................................................................................................................ Passim

Praylow v. Martin, 761 F.2d 179 (4th Cir. 1985) ......................................................................... 14

Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) ............................................................................. 12

Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989) ..................................................................... 14

Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162 (2d Cir. 2000) .............. 12

TEAM KK

iv

St. Charles Foods, Inc. v. Am.'s Favorite Chicken Co., 198 F.3d 815 (11th Cir. 1999) ...... 7, 8, 27

Taylor v. Bowen, 821 F.2d 985 (4th Cir. 1987) ........................................................................... 14

United of Omaha Life Ins. v. Sun Life Ins. Co., 894 F.2d 1555 (11th Cir. 1990) .......................... 8

United States v. Hall, 462 F.3d 684 (7th Cir. 2006) ............................................................... 11, 15

United States v. Howell, 231 F.3d 615 (9th Cir. 2000) .......................................................... 11, 15

United States v. Polishan, 336 F.3d 234 (3d Cir. 2003) ................................................... 11, 13, 14

United States v. Walters, 638 F.2d 947 (6th Cir. 1981)...................................................... 9, 11, 14

Wells v. Shriners Hosp., 109 F.3d 198 (4th Cir. 1997) .......................................................... 11, 14

Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) ....................... 19, 20

Williams v. McNeil, 557 F.3d 1287 (11th Cir. 2009)............................................................. 11, 15

United States District Court Cases

Access Now, Inc. v. Sw. Airlines, Co., 227 F.Supp.2d 1312 (S.D. Fla. 2002) ............................ 21

Castillo v. Jo-Ann Stores, LLC, 286 F.Supp.3d 870 (N.D. Ohio 2018) ................................. 23, 24

Gil v. Winn-Dixie Stores, Inc., 257 F.Supp.3d 1340 (S.D. Fla. 2017) ................................... 23, 24

J.H. v. Just for Kids, Inc., 248 F.Supp.3d 1210 (D. Utah 2017) ................................................... 21

Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196 (D. Mass. 2012) .................. 19, 26, 27

Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006) ........ 19, 22, 23, 24

Wells Fargo Bank N.A. v. Sinnott, No.2:07-CV-169, 2010 WL 297830 (D. Vt. Jan. 19, 2010) . 13

Young v. Facebook, Inc., 790 F.Supp.2d 1110 (N.D. Cal. 2011)................................................. 25

Statutes

28 U.S.C. § 636 ............................................................................................................................... 8

42 U.S.C. § 12181(7) ........................................................................................................ 18, 20, 21

42 U.S.C. § 12182 ................................................................................................................... 18, 26

Pub. L. No. 110-325, 122 Stat. 3553 ............................................................................................ 19

Other Authorities

Ending the Disconnect for the Deaf Community: How Amendments to the Federal Regulations

Can Realign the ADA with Its Purpose, 29 Cardozo Arts & Ent. L.J. 425 (2011) ............. 18, 19

Fed. R. Civ. P. 73(c) ..................................................................................................................... 17

Fed. R. Crim. P. 52(b) ................................................................................................................... 12

H.R. Rep. No. 94-1609 ............................................................................................................. 9, 18

TEAM KK

v

No Regulations and Inconsistent Standards: How Website Accessibility Lawsuits Under Title III

Unduly Burden Private Businesses, 69 Case W. Res. L. Rev. 1079 (2019) ............................. 27

Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the

Authority of the Federal Courts, 84 Colum. L. Rev. 1433 (1984) .............................................. 8

TEAM KK

1

STATEMENT OF THE ISSUES

1. Did the District Court appropriately hear Mr. Fauci’s new legal argument, even though it

was never previously raised and Plaintiff made no objections to the Magistrate Judge’s

Report and Recommendations?

2. Does Spicy Peach, Inc.’s website constitute a place of public accommodation under the

Americans with Disabilities Act, and if so, is there sufficient nexus between the physical

store and website?

TEAM KK

2

STATEMENT OF THE FACTS

I. Factual Background

Plaintiff, Mr. Fauci, was born with a hearing impairment, making him completely deaf. R.

9. Defendant, Spicy Peach, Inc. (“Spicy Peach”), is an adult entertainment business which rents

adult videos. R. 9. Spicy Peach, has a physical brick-and-mortar location and a streaming website.

R. 9-10. Originally, the company consisted of only a physical location. R. 9. The brick-and-mortar

location has been open for the past twenty years. R. 9. The physical location was successful with

sales until new digital business models emerged. R. 9–10. But as the proverb goes, all good things

must come to an end.

Due to advancements in streaming technology and the general public’s desire for digital

distribution of video entertainment, Spicy Peach successfully escaped being buried alive under the

collapse of video rental stores. R. 10. In 2015, Spicy Peach produced a website,

www.spicypeachrentals.com, to establish their sales online. R. 10. This website is in addition to

the brick-and-mortar location. R. 10. The website does provide location information for the brick-

and-mortar store. R. 10. However, the website is separate in function and transactions from the

physical location. R. 10. For example, a customer cannot purchase a video online and then pick

the video up in-store. R. 10.

Although the store and website are separate in function, both include several of the same

adult videos available for rent. R. 10. However, there are exclusive videos only available through

the website. R. 10. The website allows customers to rent and stream adult videos completely

online. R. 10. If a customer chooses to purchase an online rental, they can download or stream the

video on their Web browser and compatible Internet-connected TV. R. 10. Like other streaming

platforms and the brick-and-mortar store rental policy, rental videos are available for 48 hours

after the customer has begun streaming or downloading. R. 10.

TEAM KK

3

On March 15, 2019, Mr. Fauci rented “Home Alone 2: Quarantined Together” from Spicy

Peach’s website for virtual viewing. R. 10. Upon beginning the video, Mr. Fauci discovered the

video did not provide closed captioning. R. 10. According to Mr. Fauci, dialogue is essential to

understanding the plot of the parody. R. 10. Additionally, Mr. Fauci could not “enjoy the movie

without closed captioning due to his hearing impairment.” R. 10. However, Spicy Peach does carry

a hard-copy of the video in the brick-and-mortar store. R. 10-11. The physical copy does provide

closed captioning. R. 11. Mr. Fauci then rented three more adult videos through the website, none

of which had closed captioning. R. 10. These three videos were not available in the brick-and-

mortar store. R. 11. Mr. Fauci’s only complaint is that the video content online does not provide

closed captioning. R. 11.

II. Procedural History

Mr. Fauci filed his claim in the District Court on April 1, 2019, pro se. R. 11. There is no

indication on why Mr. Fauci chose to proceed pro se. R. 11. On July 1, 2019, both Mr. Fauci and

Spicy Peach moved for summary judgment. R. 11. On July 7, 2019, the District Court referred the

motion to the assigned Magistrate Judge, Judge Cuomo, for a Review and Recommendations

(“R&R”). R. 11. The Magistrate Judge instructed both parties to file their oppositions to the motion

by August 1, 2019. R. 11. Neither party opposed the motions. R. 11. But despite the acceptance of

the motion, Mr. Fauci moved for additional time to conduct discovery pursuant to Rule 56(d) of

the Federal Rules of Civil Procedure. R. 11. Mr. Fauci failed to finish sorting through the

documents he requested during the ninety-day discovery period. R. 11. On August 8, 2019, the

Magistrate Judge denied Mr. Fauci’s motion for additional discovery time, but granted Mr. Fauci

until September 1, 2019 to oppose the summary judgment order. R. 11.

Coron & Varis, LLP reached out to Mr. Fauci about the possibility of representing him pro

bono during the beginning of August and Mr. Fauci accepted the assistance. R. 11. The attorneys

TEAM KK

4

prepared a new summary judgment motion by the Magistrate Judge’s deadline, but missed a key

legal argument in favor of their client. R. 11. On August 29, 2020, Mr. Fauci and his new counsel

moved to stay adjudication of the summary judgment motion and sought reconsideration of the

Order denying the extension of discovery. R. 11–12. The Magistrate Judge granted both motions

on October 15, 2019, so Mr. Fauci had until January 13, 2020 to complete discovery. R. 12. The

Magistrate Judge issued an R&R recommending that the District Court grant Spicy Peach’s motion

for summary judgment against Plaintiff’s ADA claim. R. 12. In the R&R, the Magistrate Judge

reminded both parties of the deadline for objections. R. 12. Per Federal Rules of Civil Procedure

72(b), any objection to the R&R was due by February 10, 2020. R. 12.

Nine days prior to the deadline for objections, Mr. Fauci’s counsel electronically submitted

a letter requesting an extension of time to object to the Magistrate Judge’s R&R. R. 12. Mr. Fauci

and his counsel assumed that the letter was received, read, and acknowledged. However, due to an

e-filling error, the letter was not received until February 11, 2020 and the court was not aware of

the letter for at least three days. R. 12. The District Court adopted the Magistrate Judge’s R&R on

February 14, 2020. R. 12.

On February 20, 2020, Mr. Fauci filed a motion opposing the District Court’s adoption of

the R&R. R. 12. Mr. Fauci attacked the decision based on a new argument—websites are always

required to accommodate disabilities under the ADA. R. 12. The District Court granted Mr. Fauci’s

request for an extension of time to file objections to the R&R and vacated the February 14, 2020

Memorandum and Order. R. 12. The court reviewed Mr. Fauci’s objections to the R&R de novo.

R. 12. The District Court reviewed two questions: (1) whether a party may raise new legal

arguments in opposition to a magistrate judge’s R&R; and (2) whether Spicy Peach’s website is a

TEAM KK

5

place of public accommodation under the ADA. R. 13, 20. The District Court rejected both of

Spicy Peach’s arguments and granted summary judgment in favor of Mr. Fauci. R. 9.

The District Court ruled that the Federal Magistrate Act does not require parties to waive

their right to raise new legal arguments as long as the arguments are properly presented. R. 14.

Further, through weighing efficiency compared to constitutional deficiencies, the District Court

decided that constitutional deficiencies must remain unscathed. R. 14. Moreover, the District Court

noted Mr. Fauci’s objection was purely the court’s clerical failure and the District Court insisted

on hearing the argument for two reasons: (1) refusing to listen to a new argument goes against the

plain language of the Federal Magistrate Act; and (2) refusing to hear a new argument would

mislead the court for deciding the second issue of the case. R. 15.

The District Court then determined whether Spicy Peach’s website is considered a “public

accommodation” within the ADA’s accessibility requirements. R. 20. The District Court chose to

follow the minority approach followed by the First and Seventh Circuits and determined that

“Spicy Peach is subject to the ADA by virtue of its function, rather than virtue of its form.” R. 22.

Based on legislative history and a textualist reading of the ADA, the District Court found Spicy

Peach deprived Mr. Fauci of his “full and equal enjoyment” hearing individuals experience, and

Spicy Peach must include closed captioning on their online videos. R. 22–23.

The District Court granted Mr. Fauci’s motion for summary judgment and awarded him

with declaratory relief and an injunction against Spicy Peach R. 24. Spicy Peach petitioned for

certiorari and this Court granted it. R. 1. On appeal, Spicy Peach argues that the District Court

should not have heard a new legal argument which was not submitted to or considered by the

Magistrate Judge, and that Spicy Peach’s website is not a place of public accommodation under

TEAM KK

6

the Americans with Disabilities Act. This Court should reverse and in the alternative, remand for

further fact-finding.

SUMMARY OF THE ARGUMENT

I. Judicial Review

This Court should reverse the District Court’s decision because the District Court

improperly heard Mr. Fauci’s new legal argument which was never raised before the Magistrate

Judge. Under the Federal Magistrate Act, parties are required to properly object to a Magistrate

Judge’s R&R in order for that issue to be heard before a district court. Mr. Fauci did not properly

object and never raised his new legal argument before the Magistrate Judge.

The District Court improperly relied on a de novo standard of review, rather than the

appropriate waiver standard. The Supreme Court reads a waiver into the Federal Magistrate Act—

failure to appropriately object waives the right to appeal the issue to a higher court. Judicial

efficiency and fundamental fairness weigh in favor of this Court reversing the District Court’s

decision. Allowing parties to raise entirely new arguments as Mr. Fauci did frustrates the

fundamental purpose of our tiered court system.

II. American with Disabilities Act

There is a circuit split on whether a sufficient nexus must exist between a physical place

and a website for that website to constitute a place of public accommodation under Title III. The

majority approach utilizes the nexus test between a physical location and a website. Conversely,

the minority approach emphasizes a website’s function over its form. This Court should apply the

majority approach and find Spicy Peach’s website does not constitute a place of public

accommodation as defined by the ADA, legislative history, and case law.

The ADA can only deem a website a place of public accommodation when there is a

significant nexus between a business’s physical store and its website. Spicy Peach’s website does

TEAM KK

7

not exist for seamless interaction with the physical store. So, there is no nexus between Spicy

Peach’s website and the physical brick-and-mortar store. Even if this Court finds a nexus between

Spicy Peach’s website and its physical store, due to the gift cards and location information

provided on the website, there is still no nexus between the videos available on the website and

the ones available in the store.

If this Court applies the minority approach, then this Court should remand for further fact-

finding. The minority approach focuses on the element of control. There is no information in the

record regarding Spicy Peach’s power to provide closed captioning for the rentals on its website.

Since this information is vital to determine whether Spicy Peach owns, leases, or operates the

website under Title III, this Court should remand for further fact-finding on this issue.

Lastly, without any clear guidance from the ADA or case law, forcing a business to follow

accessibility standards when there is no nexus between its physical store and website places an

undue burden on that business. Accordingly, Spicy Peach asks this Court to reverse the holding of

the United States District Court for the District of Emory and in the alternative, remand for further

fact-finding.

ARGUMENT

I. THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EMORY

IMPROPERLY CONSIDERED MR. FAUCI’S NOVEL LEGAL ARGUMENT, WHICH

WAS NOT SUBMITTED TO OR CONSIDERED BY THE MAGISTRATE JUDGE.

This Court should review the District Court’s grant of summary judgment on a de novo

standard. B & G Enterprises, Ltd. v. United States, 220 F.3d 1318, 1322 (Fed. Cir. 2000). Further,

this Court must view all facts and evidence in a light most favorable to the nonmoving party—

Spicy Peach. St. Charles Foods, Inc. v. Am.'s Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir.

1999). Lastly, the Court must “resolve all reasonable doubts about the facts in favor of the non-

TEAM KK

8

movant.” Id. (citing United of Omaha Life Ins. v. Sun Life Ins. Co., 894 F.2d 1555, 1558 (11th

Cir. 1990)).

A. This Court should reverse the District Court’s holding because Mr. Fauci waived his right

to appeal by not properly filing objections under the Federal Magistrate Act and never

raising his new legal argument.

The Federal Magistrate Act (“Act”) secures parties’ rights to object to any finding made

by the magistrate judge in their proceeding. 28 U.S.C. § 636. The Act governs magistrate judges,

who serve as appointees within the district of the court that appointed the magistrate. Id. § 636(a).

As part of their duties, a magistrate judge may conduct hearings and submit findings and

recommendations. Id. § 636(b)(1)(B)–(C). It is upon the parties to file written objections to the

magistrate judge’s recommendations. Id. § 636(b)(1)(C). Any party who disagrees with the

magistrate’s findings and recommendations may file written objections—triggering de novo

review by a district judge. Thomas v. Arn, 474 U.S. 140, 142 (1985) (referencing 28 U.S.C.

§ 636(b)(1)(C)).

If a party does not object within the given timeframe, the Supreme Court has ruled a party

waives its right to object to that finding in the future. Thomas, 474 U.S. at 142. Further, the Court

explained that Circuit Courts have the power to decide their own court’s procedural rules. Id. at

146 (“It cannot be doubted that the courts of appeals have supervisory powers that permit, at the

least, the promulgation of procedural rules governing the management of litigation.”). “Sound

judicial practice” motivates courts controlling their own procedural rules. Id. (citing Cupp v.

Naughten, 414 U.S. 141, 146 (1973); see also Sara Sun Beale, Reconsidering Supervisory Power

in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84

COLUM. L. REV. 1433, 1465 (1984) (explaining that federal courts have the power to set “technical

details and policies to the litigation process”)).

TEAM KK

9

The Thomas Court relied upon the Sixth Circuit’s decision in United States v. Walters.

Thomas, 474 U.S. at 145; United States v. Walters, 638 F.2d 947 (6th Cir. 1981). In Walters the

Sixth Circuit said, “the fundamental congressional policy underlying the Magistrate’s Act . . . is

best served by our holding that a party shall file objections with the district court or else waive

right to appeal.” Walters, 638 F.2d at 949–50. The Court further looked at the statutory

construction of the Act. Thomas, 474 U.S. at 148–49. The Court focused on the permissive

language of the statute—the Act “provides that a litigant ‘may’ file objections.” Id. at 148. Further,

the Court held that it did not need to decide whether the Act mandated a waiver, just that the Act

did not forbid the waiver. Id. at 149.

In allowing a waiver to the Act, the Court considered the Act’s legislative history—

specifically the Act’s 1976 amendments. When Congress amended the Act, it reviewed the

guidelines of the Administrative Office of the United States Courts which delineated the efficient

use of magistrates. Thomas, 474 U.S. at 150–51 (referencing Hearing on S. 1283 before the

Subcomm. on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 94th

Cong, 1st Sess., 24 (1975) (quoting Jurisdiction of United States Magistrates)). Congress amended

the Act “in order to clarify and further define the additional duties which may be assigned to a

United States Magistrate in the discretion of a judge of the district court.” H.R. REP. No. 94-1609,

at 2 (1976). The Court explained that “there is no indication that Congress, in enacting [the Act],

intended to require a district judge to review a magistrate's report to which no objections are filed.

It did not preclude treating the failure to object as a procedural default, waiving the right to further

consideration of any sort.” Thomas, 474 U.S. at 152. Thus, the Supreme Court decided that a

waiver rule “is a valid exercise of the supervisory power that does not violate either the Federal

Magistrates Act or the Constitution.” Id. at 155.

TEAM KK

10

The Magistrate Judge issued his R&R on January 27, 2020. R. 12. In the R&R, the

Magistrate Judge reminded the parties they had until February 10, 2020, to submit any objections.

R. 12. While Mr. Fauci sought an extension of time, the Magistrate Judge did not grant the

extension. R. 12. Mr. Fauci’s failure to timely file objections to the Magistrate Judge’s R&R

waives the right to appeal it now. Further, Mr. Fauci did not raise this novel legal argument at any

point during the proceedings before the Magistrate Judge. Thus, Mr. Fauci’s argument falls on two

edges: (1) failure to properly object at the appropriate time; and (2) failure to even raise this

argument at any point before it reached the District Court.

The District Court agrees to hear Mr. Fauci’s new argument because of the clerical error

that interfered with Mr. Fauci’s objection filing. R. 15 (“It is the opinion of this Court that Fauci’s

right to de novo review also affords him the right to raise any new legal argument that could have

been raised before the magistrate judge.”). However, this is incorrect. Because of these failures,

Mr. Fauci waived his right to object and this Court should reverse the District Court’s ruling.

B. The District Court incorrectly focused its argument on a de novo review standard instead

of following the majority view of waiver, which dictates that a failure to object to the

Magistrate Judge’s recommendations waives a party’s right to raise it on appeal.

The Federal Rules of Civil Procedure dictate that a party has fourteen days to object to a

magistrate judge’s proposed findings and recommendations—after which, a district judge shall

make a de novo determination. FED. R. CIV. P. 72(b). But this rule does not guarantee a party de

novo review on every new argument they raise on appeal—the party must have preserved that

objection against the magistrate’s original findings. See Paterson-Leitch Co. v. Massachusetts

Mun. Wholesale Elec. Co., 840 F.2d 985, 990–91 (1st Cir. 1988) (accord Borden v. Secretary of

HHS, 836 F.2d 4, 6 (1st Cir. 1987)) (“The rule does not permit a litigant to present new initiatives

to the district judge. We hold 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.”).

TEAM KK

11

Further, the Supreme Court specifically said that a de novo review does not require the district

court to review arguments where no party objected, “[i]t does not appear that Congress intended

to require district court review of a magistrate's factual or legal conclusions, under a de novo or

any other standard, when neither party objects to those findings.” Thomas, 474 U.S. at 150.

Allowing de novo review of all new arguments raised at the appellate level would run counter to

the entire purpose of lower courts and negate the need for a tiered court system our judicial system

employs.

The First, Second, Third, Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits all follow

the Thomas decision to read some version of a waiver element in the Act. Paterson-Leitch Co.,

840 F.2d at 990; McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983); United States v. Polishan,

336 F.3d 234, 240 (3d Cir. 2003); Wells v. Shriners Hosp., 109 F.3d 198, 199 (4th Cir. 1997);

United States v. Walters, 638 F.2d 947, 949–50 (1981); United States v. Hall, 462 F.3d 684, 688

(7th Cir. 2006); Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009); United States v.

Howell, 231 F.3d 615, 622 (9th Cir. 2000). Each Circuit has a slightly different approach and

reasoning, but all follow the same rule—failure to object to a magistrate’s report and

recommendations waives the right to appeal. Reading in this waiver follows the lines of judicial

fairness and efficiency for all parties involved.

The First Circuit’s approach is to never hear novel legal arguments if they are not first

raised before the magistrate judge. Paterson-Leitch Co., 840 F.2d at 990 (reasoning that “[a] party

has a duty to put its best foot forward before the magistrate: to spell out its arguments squarely and

distinctly.”). In Paterson-Leitch Co., Plaintiff only referenced their “new” argument with a single

sentence in the opposition memorandum—the court found this was inadequate. Id. Paterson-Leitch

Co. is comparable to this case—Mr. Fauci failed to adequately present this new legal argument

TEAM KK

12

before the magistrate, and thus this Court should not allow him to raise it now. The First Circuit’s

reasoning for this is to “relieve courts of unnecessary work.” Id. (citing Park Motor Mart, Inc. v.

Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980) (explaining the issue as to whether the district

court had a duty to review the magistrate judge’s findings regardless and the losing party need

only object if the party wanted a hearing conducted—the court decided that “presumably, there is

some purpose for all language used, there could be no reason for mandating a redetermination

when objections are filed if the court had to do so whether objections were filed or not.”)). If the

appellate and lower courts served the same function of hearing new legal arguments, their work

would be duplicative.

The Second Circuit’s approach is also: failure to object waives any right to judicial review.

McCarthy, 714 F.2d at 237 (citing John B. Hull, Inc. v. Waterbury Petroleum Products, Inc., 588

F.2d 24, 29–30 (2d Cir. 1978) (“When a party fails to object timely to a magistrate's recommended

decision, it waives any right to further judicial review of that decision.”)). The Second Circuit may

make an exception to this rule if the magistrate judge committed plain error in ruling, “[t]his rule,

which applies to pro se as well as counseled litigants, is ‘a . . . violation we may excuse in the

interests of justice.’ Our discretion to do so ‘is exercised based on . . . whether the magistrate judge

committed plain error in ruling.’” Passe v. New York City Dep't of Corr., 377 F. App'x 106, 107

(2d Cir. 2010) (citing Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Spence v. Superintendent,

Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000)). This definition of plain error

stems from the federal rules of criminal procedure, “[a] plain error that affects substantial rights

may be considered even though it was not brought to the court's attention.” FED. R. CRIM. P. 52(b).

In this case, Mr. Fauci failed to even raise this new argument to the Magistrate Judge, thus the

Magistrate Judge did not commit plain error in his ruling.

TEAM KK

13

The Second Circuit also uses a balancing test—which the District Court referenced in its

opinion. R. 17. In Wells Fargo Bank N.A. v. Sinnott, the court listed six factors it would consider

when deciding whether or not to hear a new argument: (1) the reason for not raising the argument

before; (2) whether a new law arose; (3) whether the new issue is an issue of pure law; (4) whether

resolving the new issue is open to serious question; (5) whether efficiency and fairness weigh in

favor or against considering the new issue; and (6) whether injustice will result if the new argument

is not considered. Wells Fargo Bank N.A. v. Sinnott, No.2:07-CV-169, 2010 WL 297830, at *4

(D. Vt. Jan. 19, 2010). The District Court admitted that no single factor of the test is dispositive,

but rather they all serve as guideposts. However, the District Court failed to consider the factors

as a whole but rather focused its analysis on the third and fourth factors. R. 18. Correctly applying

the Wells Fargo test results in finding that the District Court should not have heard Mr. Fauci’s

new argument. First, there is no legitimate reason that Mr. Fauci did not raise this new argument

previously. Second, no new law arose between the time Mr. Fauci filed their original complaint

and the proceedings before the Magistrate Judge. Third, this is an issue of pure law. Fourth, Mr.

Fauci’s new argument presents a novel question. Fifth, efficiency and fairness both weigh in

against considering the new issue. Sixth, not considering the new argument does not run counter

to the scales of justice. By using the Second Circuit test appropriately and evaluating all six

factors—instead of picking and choosing the ones most favorable to a particular side—the test

weighs in favor of not allowing Mr. Fauci to raise a new legal argument before the District Court.

The Third Circuit also follows a clear waiver rule. Polishan, 336 F.3d at 240 (“It is

undisputed that, in civil cases, the right to appeal the ruling of a magistrate judge is waived if

reconsideration before the district court is not sought in a timely fashion.”). Polishan filed post-

verdict motions where he raised for the first time that the magistrate judge had erred in ruling on

TEAM KK

14

his pre-trial motions. Id. at 238. This is comparable to Mr. Fauci’s situation. Mr. Fauci did not

raise this new legal argument until after the proceedings with the Magistrate Judge finished. R. 15.

The court in Polishan explained that by not raising the new argument previously, Polishan had

“deprived the District Court of the opportunity effectively to review that decision and to correct

any errors.” Polishan, 336 F.3d at 240–41.

The Fourth Circuit’s approach is also clear—failure to file an objection by the deadline

waives the right to appeal. Wells v. Shriners Hosp., 109 F.3d 198, 199 (4th Cir. 1997) (referencing

Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989) (tort defendant who failed to file objections to

magistrate's report and therefore waived appeal); Taylor v. Bowen, 821 F.2d 985 (4th Cir. 1987)

(disability claimant failed to file objections to magistrate's report and appeal was waived); Praylow

v. Martin, 761 F.2d 179, 180 n.1 (4th Cir. 1985) (the party, who failed to file an objection to a

particular point, waived appeal on that point); Carr v. Hutto, 737 F.2d 433 (4th Cir. 1984) (prisoner

objected to magistrate's report after the deadline and thus waived appeal)). Carr filed his suit pro

se. Carr, 737 F.2d at 434. Carr failed to object within the timeframe the court provided—however,

a few days past the deadline, he forwarded a letter he had received from an attorney who advised

Carr to object to the R&R. Id. The court made no exceptions for Carr even though he was pro se

and also later received assistance from actual counsel. Id. Because Carr did not appropriately object

when the court called for the action, he could not later appeal. Id. This is synonymous to Mr.

Fauci’s case—Mr. Fauci was originally pro se and later received help from counsel who mentioned

this new argument. R. 12. However, that circumstance does not afford Mr. Fauci any exceptions.

Therefore, Mr. Fauci’s new argument was improperly heard before the District Court.

The Sixth Circuit also follows the Supreme Court in reading in a waiver provision. Walters,

638 F.2d at 949–50 (“The fundamental congressional policy underlying the Magistrate's Act—to

TEAM KK

15

improve access to the federal courts and aid the efficient administration of justice—is best served

by our holding that a party shall file objections with the district court or else waive right to

appeal.”). Next, the Seventh Circuit follows the majority approach and also reads in a waiver

provision. Hall, 462 F.3d at 688 (“[F]ailure to object to the recommendations and decisions of a

magistrate judge is one instance we have held waiver of appellate review results.”). The Ninth and

Eleventh Circuits leave the district court with discretion on whether or not to review a party’s

argument, even when that argument was not raised before the magistrate judge. Williams, 557 F.3d

at 1292; Howell, 231 F.3d at 622 (“To require a district court to consider evidence not previously

presented to the magistrate judge would effectively nullify the magistrate judge's consideration of

the matter and would not help to relieve the workload of the district court.”). The above circuits

all follow the rule that this Court should employ—failure to object necessarily waives a right to

appeal that issue to a higher court.

Not only did Mr. Fauci not timely file objections to the Magistrate Judge’s

recommendations, but Mr. Fauci also never raised one of his current arguments before the

magistrate court. While Mr. Fauci originally brought this suit pro se, our judicial system does not

grant exceptions based on the form of representation. Faretta v. California, 422 U.S. 806, 835 n.46

(1975) (“The right of self-representation is not a license to abuse the dignity of the courtroom.

Neither is it a license not to comply with relevant rules of procedural and substantive law.”). Even

more so, the Supreme Court has lamented on the fact that it is not upon judges to make up for any

deficiencies that may arise for a party that is without counsel. McKaskle v. Wiggins, 465 U.S. 168,

183–84 (1984) (“A defendant does not have a constitutional right to receive personal instruction

from the trial judge on courtroom procedure. Nor does the Constitution require judges to take over

chores for a pro se defendant that would normally be attended to by trained counsel as a matter of

TEAM KK

16

course.”). The District Court gives the impression it is willing to hear Mr. Fauci’s new argument

without cause—simply because Mr. Fauci was originally pro se and the court wants to decide this

issue, it will hear it. This decision is without precedent or support. The District Court sets a

dangerous precedent—one that flies in the face of almost every other circuit—by allowing Mr.

Fauci to raise a brand-new argument that was never previously raised. This Court should follow

the majority of circuits and solidify a waiver provision in the Act—thereby reversing the District

Court decision.

C. Judicial efficiency and fundamental fairness weigh heavily in favor of this Court

overturning the District Court’s decision.

As the Supreme Court said in Thomas, requiring objections to the magistrate’s findings,

“is supported by sound considerations of judicial economy.” Thomas, 474 U.S. at 147. Further, as

the First Circuit pointed out, “[s]ystemic efficiencies would be frustrated and the magistrate's role

reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial

hearing, and save its knockout punch for the second round.” Paterson-Leitch Co., 840 F.2d at 991.

Both judicial efficiency and fundamental fairness support the notion that this Court should reverse

the District Court’s holding and adopt a waiver provision into reading the Act.

Fundamental fairness of the judicial system weighs in favor of overturning the District

Court’s decision because it gives each party an equal chance to have their new legal arguments

heard before the court. As the First Circuit described, “it would be fundamentally unfair to permit

a litigant to set its case in motion before the magistrate, wait to see which way the wind was

blowing, and—having received an unfavorable recommendation—shift gears before the district

judge.” Paterson-Leitch, 840 F.2d at 991. The District Court has started down a slippery slope of

allowing Mr. Fauci to bring a new legal argument that was never previously raised. Instead of

formulating a discretion-style test that other circuits employ, the District Court impermissibly

TEAM KK

17

creates a new rule: de novo review allows parties to raise any new legal argument they could have

raised before. This rule effectively eliminates the need for magistrate and lower courts altogether.

The District Court’s rule runs counter to the very purpose of our court system. The

Judiciary Act of 1789 first described the structure of our federal court system—there would be

district courts, circuit courts, and then the Supreme Court. Section 9, Judiciary Act of 1789, 1 Stat.

76, 77. The Judiciary Act stated that circuit courts would have appellate jurisdiction over the

district courts. Id. The foundation of our judicial system did not envision a court system where

these differing levels of courts would have redundant purposes. The District Court’s bright-line

rule necessarily negates the need for a tiered court system. The tiered court system creates a just

process where parties may bring their claims and issues into the entry-level, and if the issue

necessitates, it may rise up.

While the District Court created this rule in an attempt to achieve fairness, it has effectively

created a more unfair playing field for other parties. This rule allows parties to circumvent

established appellate rules. Federal Rules of Civil Procedure state that a party may bring an appeal

from a magistrate judge’s decision to the court of appeals—how any other appeal from a district

court decision. FED. R. CIV. P. 73(c). And the general rule is that an appellate court does not

consider an issue not considered below. Singleton v. Wulff, 428 U.S. 106, 120 (1976).

Allowing parties to raise entirely new arguments before an appeals court also proves to be

judicially inefficient. Appellate courts are not fact finders—they “review the procedures and

decisions in the trial court to make sure that the proceedings were fair and that the proper law was

applied correctly.” About the U.S. Court of Appeals, UNITED STATES COURTS

https://www.uscourts.gov/about-federal-courts/court-role-and-structure/about-us-courts-appeals

(last visited Sept. 7, 2020). Therefore, allowing appellate courts to hear new legal arguments for

TEAM KK

18

the first time runs counter to their very purpose. What is more, in drafting the Act, the Supreme

Court explained that, “Congress did not intend district judges ‘to devote a substantial portion of

their available time to various procedural steps rather than to the trial itself.’ Nor does the

legislative history indicate that Congress intended this task merely to be transferred to the court of

appeals.” Thomas, 474 U.S. at 152–53 (quoting H.R. REP. NO. 94-1609, at 7 (1976)). In light of

furthering judicial efficiency and fundamental fairness, this Court should reverse the District

Court’s decision.

II. SPICY PEACH’S WEBSITE IS NOT A PLACE OF PUBLIC ACCOMMODATION

UNDER THE AMERICANS WITH DISABILITIES ACT.

If this Court finds for the first issue that the District Court incorrectly heard Mr. Fauci's

new legal argument, then this Court does not need to reach this issue. In the alternative, if this

Court finds in Mr. Fauci's favor for the first issue, this Court should still find issue two in Spicy

Peach’s favor.

Under Title III of the Americans with Disabilities Act of 1990 (“ADA”), “[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. § 12182. The ADA lists twelve categories of private entities that

constitute a place of public accommodation under the Act. 42 U.S.C. § 12181(7). The ADA was

originally enacted before prevalent Internet usage. See Haley M. Koteen, Note, Ending the

Disconnect for the Deaf Community: How Amendments to the Federal Regulations Can Realign

the ADA with Its Purpose, 29 CARDOZO ARTS & ENT. L.J. 425, 428 (2011) (explaining that

Congress passed the ADA before the Internet was commonly used and does not mandate private

websites must be accessible to those with disabilities). Congress amended the Act in 2008. ADA

TEAM KK

19

Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). However, even after the

amendment, Congress did not add the Internet to the categories in Title III. Id.

There is a circuit split on whether a sufficient nexus must exist between a physical place

and a website for that website to constitute a place of public accommodation under Title III. The

majority approach applied by the Third, Sixth, Ninth, and Eleventh Circuits utilizes the nexus test

between a physical location and a website. Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d

946, 956 (N.D. Cal. 2006); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th

Cir. 2000); Haynes v. Dunkin’ Donuts LLC, 741 Fed. App’x 752, 754 (11th Cir. 2018); Ford v.

Schering-Plough Corp., 145 F.3d 601, 612–14 (3rd Cir. 1998); Earll v. eBay, Inc., 599 Fed. App’x

695, 696 (9th Cir. 2015). These circuits recognize that a place of public accommodation under the

ADA is a physical place. However, a website can be a place of public accommodation under Title

III if there is “some connection between the good or service complained of and [the] actual physical

place.” Weyer, 198 F.3d at 1114.

The minority approach followed by the First and Seventh Circuits emphasizes a website’s

function over its form. R. 22; Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196, 199–202

(D. Mass. 2012); Morgan v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001). In other words,

the ADA may deem a website as a place of public accommodation under Title III regardless of

whether a nexus exists between a physical place and a website. This Court should apply the

majority approach and find that Spicy Peach’s website does not constitute a place of public

accommodation as defined by the ADA and case law.

A. This Court should apply the majority approach followed by the Third, Sixth, Ninth,

and Eleventh Circuits.

The minority approach ignores the ADA’s legislative history. Congress recently had

opportunities to amend the ADA and explicitly include the Internet. There have been multiple

TEAM KK

20

congressional hearings—two of which occurred in 2010—specifically addressing adding the

Internet to the ADA. See Achieving the Promise of the ADA in the Digital Age-Current Issues,

Challenges, and Opportunities: Hearing Before the Subcomm., on the Constitution, Civil Rights,

and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. (2010) (noting the

subcommittee was held to explore advances in technology and accessibility design that have taken

place since passage of the ADA); see also Innovation and Inclusion: The ADA at 20: Hearing

Before the Subcomm., on Commc'n, Tech., and the Internet of the S. Comm. on Commerce, Sci.,

and Transp., 111th Cong. (2010) (statement of John D. Rockefeller IV, Chairman, S. Comm. on

Commerce, Sci., and Transp.) (“[A]t our hearing today, the Subcommittee on Communications,

Technology, and the Internet will consider how we need to update the Americans with Disabilities

Act and related laws, so that they better reflect the digital age.”). In 2010, the Internet was quite

integrated and essential in American society and everyday life. See Internet/Broadband Fact Sheet,

PEW RESEARCH CENTER (June 12, 2019), https://www.pewresearch.org/internet/fact-

sheet/internet-broadband/ (finding in 2010, 76% of all adult Americans use the Internet). If the

Legislature intended to add the Internet to the ADA, there were multiple opportunities for them to

do so. Therefore, this Court should follow the majority approach here.

Additionally, the list of categories that constitute a place of public accommodation has no

reference to digital platforms. 42 U.S.C. § 12181(7). Even after these multiple congressional

hearings and discussions, the list only includes physical places. As the Weyer court stated,

applying “the principle of noscitur a sociis requires that the term, ‘place of public

accommodation,’ be interpreted within the context of the accompanying words, and this context

suggests that some connection between the good or service complained of and an actual physical

place is required” since all of the surrounding words are physical places. Weyer, 198 F.3d at 1114.

TEAM KK

21

Relying on the Weyer court’s reasoning, a district court found that Title III prohibitions do not go

beyond the actual, physical places of public accommodation. J.H. v. Just for Kids, Inc., 248

F.Supp.3d 1210, 1216–17 (D. Utah 2017). The Supreme Court has also said that noscitur a sociis

requires ambiguous terms “be interpreted by reference to the accompanying words of the statute

to avoid the giving of unintended breadth to the Acts of Congress.” Jarecki v. G.D. Searle & Co.,

467 U.S. 303, 307 (1961).

Other cases have applied the canon of ejusdem generis as another tool of statutory

interpretation that supports the position that the Internet is not encompassed in Title III. The canon

states that “where general words follow a specific enumeration of persons or things, the general

words should be limited to persons or things similar to those specifically enumerated.” Access

Now, Inc. v. Sw. Airlines, Co., 227 F.Supp.2d 1312, 1318 (S.D. Fla. 2002). Mr. Fauci argues that

Spicy Peach’s website could fall under the Title III category of “sales or rental establishment.” R.

22; 42 U.S.C. § 12181(7). However, the Access Now court applied this canon upon reviewing

websites and concluded that the term “sales establishment” is limited to the “correspondingly

specifically enumerated terms [in the statute], all of which are physical, concrete structures.”

Access Now, 227 F.Supp.2d at 1319; 42 U.S.C. § 12181(7). So, the court concluded that “a place

of public accommodation” does not include websites. Access Now, 227 F.Supp.2d at 1319. Thus,

unlike the District Court’s conclusion, applying the canon of ejusdem generis proves that the

general words in the twelve categories are all physical places, so the list does not apply to websites.

This statutory interpretation coupled with the legislative history indicates that Title III is not

intended to apply to the Internet. Accordingly, this Court should apply the majority approach in its

analysis.

TEAM KK

22

B. Under the majority approach, Spicy Peach’s website is not a place of public

accommodation because there is no nexus between the website and Spicy Peach’s

physical store.

Unlike the Fifth Circuit’s ruling, Spicy Peach agrees that a website can sometimes be a

place of public accommodation. See Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530,

534 (5th Cir. 2016) (concluding that only physical places are places of public accommodation

under Title III). The ADA can only deem a website as a place of public accommodation under

Title III when there is a significant nexus between a business’s physical store and its website. Here,

case law supports that there is no nexus between Spicy Peach’s website and the physical brick-

and-mortar store.

In Haynes, Plaintiff sued Defendant Dunkin’ Donuts, under Title III alleging that Dunkin’

Donuts’ website was not compatible with Plaintiff’s screen reading software. Haynes, 741 F.

App’x at 752. The court stated that “the ADA is clear that whatever goods and services Dunkin’

Donuts offers as a part of its place of public accommodation, it cannot discriminate against people

on the basis of a disability, even if those goods and services are intangible.” Id. at 754. Plaintiff

alleged that Dunkin’ Donuts’ website did not allow “blind people the ability to enjoy the goods,

services, privileges, and advantages of Dunkin’ Donuts’ shops.” Id. Additionally, Plaintiff argued

that the website “allows customers to locate physical Dunkin’ Donuts store locations and purchase

gift cards online” and it “‘provides access to’ and ‘information about . . . the goods, services,

facilities, privileges, advantages or accommodations of’ Dunkin’ Donuts’ shops.” Id. (alteration in

original).

In Target, Defendant Target operated about 1,400 physical stores and owned and operated

the website, Target.com. Target, 452 F.Supp.2d at 949. The court discussed how on “Target.com,

customers can purchase many of the items available in Target stores” and the website “allows a

customer to perform functions related to Target stores. For example, through Target.com, a

TEAM KK

23

customer can access information on store locations and hours, refill a prescription or order photo

prints for pick-up at a store, and print coupons to redeem at a store.” Id. The court explained that

the website “is heavily integrated with the brick-and-mortar stores and operates in many ways as

a gateway to the stores.” Id. at 955; see also Gil v. Winn-Dixie Stores, Inc., 257 F.Supp.3d 1340,

1348 (S.D. Fla. 2017) (“Where a website is heavily integrated with physical store locations and

operates as a gateway to the physical store locations, court have found that the website is a service

of a public accommodation and is covered by the ADA.”). As the Magistrate Judge found in the

case at hand, this is evident as “[c]ases in which courts have found a sufficient nexus involve a

direct link between the online website and the physical store such that the website facilitates in-

store transactions.” R. 6.

In Castillo, Plaintiff Castillo was a visually impaired individual who needed “screen-

reading software to read website content.” Castillo v. Jo-Ann Stores, LLC, 286 F.Supp.3d 870,

872 (N.D. Ohio 2018). Defendant Jo-Ann was a crafts and fabrics store. Id. Consumers were able

to “purchase products from Jo-Ann in person at its brick-and-mortar stores or online through Jo-

Ann’s website.” Id. Castillo brought a claim against Jo-Ann alleging that Jo-Ann’s website was

not accessible to her. Id. The court determined that there was a sufficient nexus between Jo-Ann’s

brick-and-mortar store and its website. Id. at 881. When determining if Plaintiff established a

sufficient nexus between the website and store, the court relied on the fact that on Defendant’s

website, one could “find store locations; learn about sales, offers and discounts (both in-store and

online); [had] the ability to browse product selections and to find product information; and make

purchases.” Castillo, 286 F.Supp.3d at 880. Additionally, the court referred to Plaintiff’s claim that

“the access barriers Plaintiff encountered on Defendant's website have deterred Plaintiff from

visiting or locating brick-and-mortar stores selling Defendant's products.” Id.

TEAM KK

24

Spicy Peach agrees that under Title III when a business offers a service as part of its place

of public accommodation, it cannot discriminate based on a disability “even if those goods and

services are intangible.” Haynes, 741 F. App’x at 754. However, Spicy Peach’s website is not a

place of public accommodation since there is no sufficient nexus between its website and store.

Though the court descriptions of Dunkin’ Donuts, Target, and Jo-Ann’s websites all include

information about the physical stores and the ability to purchase gift cards online, this alone was

not enough to create a sufficient nexus. R. 4. While Spicy Peach’s website includes location

information about the physical store and gives customers the ability to purchase gift cards online,

the Haynes, Target, and Castillo courts’ analyses included a much more extensive list of other

services the websites had, which connected the websites to the physical stores. Haynes, 741 F.

App’x at 754; Target, 452 F.Supp.2d at 949; Castillo, 286 F.Supp.3d at 880. The courts’ analyses

did not rely solely on the location information and the ability to purchase gift cards. Each court

listed out many other aspects of the website that restricted a customer’s ability to access the

services of the physical store. Additionally, unlike Jo-Ann’s website, Spicy Peach’s website has

not deterred Mr. Fauci from visiting or locating Spicy Peach’s physical store. The Castillo court

highlighted this deterrence as meaningful in determining if there is a nexus. Castillo, 286

F.Supp.3d at 880. Mr. Fauci’s issues online have nothing to do with his access to the physical

store. Thus, having location information and the ability to purchase gift cards alone is not enough

to create this sufficient nexus.

The majority of the website functions the Haynes, Target, and Castillo courts listed are

unlike the functions of Spicy Peach’s website. Haynes, 741 F.App’x at 754; Target, 452 F.Supp.2d

at 949; Castillo, 286 F.Supp.3d at 880. Spicy Peach’s website is not a “gateway” to its physical

store. Cf. Gil v. Winn-Dixie Stores, Inc., 257 F.Supp.3d at 1349 (“The services offered on Winn-

TEAM KK

25

Dixie’s website, such as the online pharmacy management system, the ability to access digital

coupons . . . the ability to find store locations, are undoubtedly services, privileges, advantages,

and accommodations offered by Winn-Dixie’s physical store locations.”). Aside from gift cards,

the transactions on Spicy Peach’s website are completely separate from in-store transactions. R. 4,

10. Spicy Peach’s website does not allow customers to rent a video on the website and then pick

the video up in the physical store. R. 4, 10. The content available online is also not identical to the

videos available at the physical store. R. 4, 10. Unlike Target, Dunkin’ Donuts, and Jo-Ann’s

websites, Spicy Peach’s website does not exist for seamless interaction with the physical store. To

that end, Spicy Peach’s website is not a place of public accommodation since there is no sufficient

nexus between its physical store and its website.

C. Even if this Court finds a nexus between Spicy Peach’s website and its physical

store—because of the gift cards and location information—there is no nexus

between the videos available in the store and online.

In Young, Plaintiff Young alleged she “suffer[ed] from bipolar disorder and that

[Defendant] Facebook unlawfully discriminated against her by failing to provide reasonable

customer services to assist individuals with mental disabilities.” Young v. Facebook, Inc., 790

F.Supp.2d 1110, 1114 (N.D. Cal. 2011). The court ruled that Plaintiff did not state a valid claim

for violation of the ADA. Id. The Young court found that “[w]hile Facebook's physical

headquarters obviously is a physical space, it is not a place where the online services to which

Young claims she was denied access are offered to the public.” Id. at 1115.

Similarly, even though the physical headquarters of Spicy Peach’s website is the physical

brick-and-mortar store, Mr. Fauci’s claim is about access to videos solely on Spicy Peach’s

website. See R. 11. (“Fauci’s sole complaint is that the video content available for rent on Spicy

Peach’s website does not provide closed captioning.”). Mr. Fauci is not alleging inaccessibility to

purchasing gift cards or finding the physical store’s location information. Mr. Fauci’s ability to

TEAM KK

26

purchase gift cards and find the physical store is not hindered because of his hearing impairment.

Hence, this Court should support the Magistrate Judge’s conclusion that “[t]he nexus must be

related to the actual issue complained of. R. 7.

D. If this Court applies the minority approach of the First and Seventh Circuits, this

Court should remand for further fact-finding.

The cases decided under the minority approach of the First and Seventh Circuits are

distinguishable from the facts of the case at hand. In Netflix, Defendant Netflix provided television

and movies on the Internet through “Watch Instantly,” Defendant’s own on-demand service

website. Netflix, Inc., 869 F.Supp.2d at 199. Plaintiffs, non-profit organizations, alleged that

Defendant only provided closed captioning for a small percentage of the titles offered on the

website. Id. Plaintiffs brought their discrimination claim against Defendants under Title III. Id. at

198.

The court stated that “[t]o plead a violation of the ADA, a plaintiff must also show that a

defendant ‘owns, leases (or leases to), or operates’ a place of public accommodation.” Id. at 202

(citing 42 U.S.C. § 12182(a)). The court explained that “the relevant inquiry is whether the

defendant ‘specifically controls the modification of the [things at issue] to improve their

accessibility to the disabled.’” Id. (citing Neff v. Am. Dairy Queen Corp.,58 F.3d 1063, 1066 (5th

Cir. 1995)).The court found that Defendant owned and operated the Watch Instantly website and

had already acknowledged it was working towards providing closed captioning. Id.

However, the Netflix court concluded that they could not determine whether Netflix

actually had “the power to provide closed captioning” since there was “no evidence before the

court concerning how much of the streaming content and associated copyrights Defendant owns,

what the terms of Defendant's agreements with other copyright owners may be (including whether

TEAM KK

27

Defendant already has permission to caption the streaming content), and whether content is

delivered to Defendant with or without captioning.” Id. at 202–03.

Similar to Netflix, there is no information in the record regarding Spicy Peach’s power to

provide closed captioning for the rentals on its website. The record simply states that Spicy Peach

is a renting service. R. 3. Because this appeal is a review of summary judgment, this Court must

view the facts in the light most favorable to the non-moving party, Spicy Peach. St. Charles Foods,

Inc., 198 F.3d at 819. But if this Court still finds it requires this information to be in the record,

then this Court should remand for further fact-finding. On remand, this Court can ask the District

Court to find details about the associated copyrights Spicy Peach owns.

III. REQUIRING SPICY PEACH TO PROVIDE CLOSED CAPTIONING PLACES AN

UNDUE BURDEN ON THE BUSINESS.

Without any clear guidance from the ADA or case law, forcing a business to follow

accessibility standards when there is no nexus between its physical store and website places an

undue burden on that business. Adding accessibility to a website is expensive. Lauren Stuy, No

Regulations and Inconsistent Standards: How Website Accessibility Lawsuits Under Title III

Unduly Burden Private Businesses, 69 CASE W. RES. L. REV. 1079, 1100 (2019). Without clear

law, a business may not plan on incurring these expenses. Id. The ADA should not require a

business in this situation to follow a standard without clear law and guidance from the Legislature

or courts.

As the Seventh Circuit said in Doe v. Mutual of Omaha Ins. Co., “[h]ad Congress purposed

to impose so enormous a burden on the retail sector of the economy and so vast a supervisory

responsibility on the federal courts, we think it would have made its intention clearer and would

at least have imposed some standards.” 179 F.3d 557, 560 (7th Cir. 1999). In addition, the Ninth

Circuit found that the ADA does not require a company to provide different services. Arizona ex

TEAM KK

28

rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 671 (9th Cir. 2010) (“This

language [of the ADA] does not require provision of different goods or services, just

nondiscriminatory enjoyment of those that are provided.”). This is also supported by the Seventh

Circuit’s decision in Doe, “a camera store may not refuse to sell cameras to a disabled person, but

it not is required to stock camera specifically designed for such persons.” 179 F.3d at 560.

Additionally, it is not the role of the court to add the Internet to the definition of the ADA.

The United States legal system is rooted in interpreting laws passed by the Legislature. It is the

role of the courts to interpret existing law, not to add things that they wish to add. This is especially

heightened in this case since the history clearly points to the intent to exclude websites from Title

III.

In short, this Court should apply the majority nexus approach because it respects the

legislative history of the ADA. As a result, upon the majority analysis, the Court should find there

is no valid nexus between Spicy Peach’s physical store and its website. In other words, Spicy

Peach’s website is not a place of public accommodation as defined by the ADA. Consequently,

this Court should reverse the holding of the District Court and in the alternative, remand for further

fact-finding for details about the associated copyrights Spicy Peach owns.

TEAM KK

29

CONCLUSION

For the above reasons, Defendant-Spicy Peach, Inc. asks this Court to reverse the United

States District Court for the District of Emory’s decision.

Respectfully submitted,

Team KK

Attorney for Defendant-Appellant