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

Brief for Appellant

Team TT Counsel for Appellant

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TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………………... i TABLE OF AUTHORITIES………………………………………………………………. ii STATEMENT OF THE ISSUES FOR REVIEW…………………………………………. iii STATEMENT OF THE FACTS…………………………………………………………... 1 SUMMARY OF THE ARGUMENT……………………………………………………… 4 ARGUMENT………………………………………………………………………………. 5 I. THE DISTRICT COURT ERRED WHEN IT DECIDED THAT IT SHOULD CONSIDER

MR. FAUCI’S NOVEL LEGAL ARGUMENT, WHICH WAS NOT SUBMITTED TO OR CONSIDERED BY THE MAGISTRATE JUDGE…………………………… 5

A. The Correct Interpretation of the Relevant Statutes Suggests That A Party Can Waive Their Right to Object to a Magistrate Judge’s Findings……………. 5

B. When Considering A Novel Legal Argument Not Raised Before A Magistrate Judge, The District Court Should Follow The Second Circuit Approach, Which Would Definitively Dispose Mr. Fauci’s Novel Legal Argument…………. 7

II. THE DISTRICT COURT INCORRECTLY RULED THAT SPICY PEACH’S WEBSITE IS SUBJECT TO THE REGULATIONS OF THE AMERICANS WITH DISABILITIES ACT………………….…………………………………………………………..… 9

A. Spicy Peach’s Website Is Not A “Place Of Public Accommodation” For Purposes Of The ADA………………………………………………………………. 9

1. The district court neglected to attach any legal definition to “place of public accommodation” pursuant to federal regulations………….... 10

2. The district court misinterpreted the examples of what constitutes a “place of accommodation” in the ADA and thus failed to recognize that a place of accommodation must be a physical location……………………. 11

3. The full legislative history of the ADA suggests that places of public accommodation must be physical places…………………… 13

B. Even If, Arguendo, A Website Can Be Subject To The ADA, The District Court Incorrectly Ruled That Online Services Which Otherwise Meet The Requirements Of Public Accommodations Are Always Subject To The ADA…………... 13

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1. The Seventh Circuit cases hold that online services which otherwise meet the criteria for “public accommodation” are not always subject to the ADA………………………………………………………………... 14

2. The district court misinterpreted the purported rule in a case from Massachusetts, and that case is inapplicable in the present dispute.. 15

C. Assuming, Arguendo, That Websites Can Be Places Of Public Accommodation, The District Court Should Have Applied The Nexus Test………………... 18

1. Three of the movies Plaintiff sought to rent are not subject to Title III because they are only offered online………………………………. 18

2. To the extent there may be a nexus between offering “Home Alone 2: Quarantined Together” and the brick-and-mortar store, Spicy Peach is not in violation of the ADA because it provides an auxiliary aid on the video offered in the store…………………………………………………. 20

CONCLUSION……………………………………….…………………………………… 22

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TABLE OF AUTHORITIES

United States Supreme Court Cases Chevron, U.S.A., Inc., v. Nat’l Resources Defense Council, 467 U.S. 837 (1984)………………………………………………………………... 10 Circuit City Stores, Inc., v. Adams, 532 U.S. 105 (2001).……………………………………………………………….. 11 Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961).……………………………………………………………….. 12 Reno v. ACLU, 521 U.S. 844 (1997).……………………………………………………………….. 11 United States v. Raddatz, 447 U.S. 667 (1980).……………………………………………………………….. . 5 United States v. Williams, 533 U.S. 285 (2008).……………………………………………………………….. 12 United States Courts of Appeals Cases Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666 (9th Cir. 2010).……………………………………………………… 21 Carparts Dist. Ctr., Inc., v. Automotive Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12 (1st Cir. 1994).…………………………………………………............. 15 Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999).………………………………………………............ 14 Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997) …………………………………………………….. 14 Lenox v. Healthwise of Kentucky, Ltd., 149 F.3d 453 (6th Cir. 1998).……………………………………………………… 14 Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016).……………………..……………………………... 12, 16 Morgan v. Joint Admin. Bd. v. America, 268 F.3d 456 (7th Cir. 2001).……………………………………………………… 14

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Official Comm. Of Unsecured Creditors of Color Tile, Inc., 322 F.3d 147 (2d Cir. 2003).………………………………………………………. 8 Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) (en banc).…………………………………………… 12 Rendon v. Valleycrest Productions, Ltd., 294 F.3d at 1274 (11th Cir. 2002)…………………………………………………..18 Rogers v. Dept. of Health & Environmental Control, 174 F.3d 431 (4th Cir. 1999)………………………………………………………. 14 Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000).…………………………………………………….. 20 United States District Court Cases Access Now, Inc, v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002)…………………………………………….. 10 . Nat’l Ass’n of the Deaf v. Netflix, 869 F.Supp.2d 196 (D. Mass. 2012).………………………………………………. 15 Nat’l Fed’n of the Blind v. Scribd, Inc., 97 F.Supp.3d 565 (D. Vt. 2015).…………………………………………………... 15 Nat’l Fed’n of the Blind v. Target Corp. 452 F.Supp.2d 946 (N.D. Cal. 2006)….…………………………………………… 19 Wells Fargo Bank N.A. v. Sinnott, No.2:07-CV-169, 2010 WL 297830 (D.Vt. Jan. 19, 2010).……………………….. .. 7 Statutes 28 U.S.C. § 636……………………………………………………………………………. 5 42 U.S.C. § 12182…………………………………………………………………….9, 11, 16, 22 28 C.F.R. § 36.104…………………………………………………………………………. 9 28 C.F.R. § 36.303…………………………………………………………………………. 21 28 C.F.R. § 36.307…………………………………………………………………………. 21 Miscellaneous

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2A Norman J. Singer, Sutherland on Statutes and Statutory Construction § 47.17, at 116 (4th ed. 1991)……………………………………………………………………………………..….11 Brief for the United States as Amicus Curiae at 8-9, Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016), 2017 WL 3085074……………………………………. 16 H.R. Rep. 101-485, 108, 1990, U.S.C.C.A.N. 303, 391 (1990) …………………………. 13 H.R. Rep. No. 101-336, at 1104 (1990)……………………………………………………. 13

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STATEMENT OF THE ISSUES FOR REVIEW

I. Whether the district court properly considered Fauci’s novel legal argument which was

not submitted to or considered by the magistrate judge; and

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

Americans with Disabilities Act in whole or in part.

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STATEMENT OF THE FACTS

I. Factual Background

Spicy Peach, Inc. is an adult entertainment business which has provided customers with

adult videos since opening its doors in the year 2000. R. 9. While the business was successful at

the outset, its income declined following the introduction of video streaming technology. Id. Due

to this changing and more competitive marketplace, in 2015 the operators of Spicy Peach created

a video streaming website, www.spicypeachrentals.com, to keep up with customers’ evolving

expectations for video entertainment. Id. at 10. The operators of Spicy Peach continue to operate

both their brick and mortar and online businesses, see id, but there are three key differences

between the two enterprises.

The primary difference is that the two business operations maintain different catalogues of

video content. The website has an abridged catalogue of videos. Id. While many of the same videos

are available for in person rental and for streaming from the website, not all videos that can be

rented in person can be streamed online. Id.

A second difference between the two separate revenue sources for Spicy Peach is the rules

governing video rental, which are different and depend on whether the video was rented online or

in the brick and mortar store. Videos streamed on the website are accessible for 48 hours after

streaming and downloading has been initiated. Id. In contrast, customers of the brick and mortar

store must come back to the store to return their physical DVD within 48 hours, an added step

which has no analog in the streaming context. Id.

The final difference between the website and the brick and mortar location is their non-

reciprocal passive interaction. The website provides customers with the location of the brick and

mortar store and the opportunity to buy gift cards that can be used for transactions at the physical

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location. Id. However, there are no similar reciprocal efforts on the part of the physical store to

promote the website. See id. Moreover, customers cannot rent a video online and pick it up in the

store. All customer transactions online are separate from those executed at the physical location

and vice versa. Id.

In March of 2019, four years after the launch of the Spicy Peach website, a partially deaf

man named Anthony Fauci tried to rent “Home Alone 2: Quarantined Together,” an adult video,

from www.spicypeachrentals.com. Id. at 9 - 10. The video did not have closed captioning, which

is necessary for Mr. Fauci to hear the dialogue in the video. Id. at 10. Mr. Fauci then rented three

other videos from the online catalogue and discovered that none had closed captioning. Id. While

Spicy Peach does have “Home Alone 2: Quarantined Together” available in its brick and mortar

location, the other three videos are available solely online. Id. at 10 - 11. The copy of “Home Alone

2: Quarantined Together” available on DVD at the physical store, like all videos on physical DVDs

available from the store, has closed captioning available. Id. at 4. In contrast, none of the videos

in digital format available for streaming from the website have a closed captioning feature. Id.

Anthony Fauci filed suit against Spicy Peach claiming that the lack of closed captioning

functionality on videos streamable from Spicy Peach’s website violated the Americans with

Disabilities Act (“ADA”). Id.at 11.

II. Procedural Background

Fauci filed his complaint pro se in district court about two weeks after his first commercial

interaction with Spicy Peach. Id. at 11. Finding no issue of material fact, both parties moved for

summary judgement. On July 7, 2019 the case was assigned to assigned Magistrate Judge Andrew

Cuomo for a Review and Recommendation (“R&R”). Id. Judge Cuomo gave the parties until the

end of the month to prepare motions in opposition. Mr. Fauci did not file an opposition, Id., but

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moved for additional time to conduct discovery. Id. After 90 days Mr. Fauci had failed to review

all of the discovery documents. Id. Judge Cuomo denied Mr. Fauci’s motion for additional

discovery time on August 8, 2019, but allowed Mr. Fauci until September 1 to provide his motion

in opposition to summary judgement. Id.

In early August Coron & Varis, LLP contacted Mr. Fauci to offer their legal services to

him pro bono. Id. Mr. Fauci assented and the firm began preparing the summary judgment motion

ahead of the September 1st deadline. Id. However, Mr. Fauci’s representation missed a key legal

argument. Id. Counsel sought to postpone resolution of the summary judgment motion, and moved

again for additional discovery time, which was granted. Id. at 11-12. Judge Cuomo gave the parties

until January 13th to conclude discovery. Id. at 12. Following the conclusion of discovery, Judge

Cuomo issued an R&R recommending that the district court grant Spicy Peach’s summary

judgement claim against Mr. Fauci. Id.

Mr. Fauci had until February 10th to file a motion in opposition to the R&R, but his motion

to extend this deadline was not entered into the e-filing system until after the deadline had passed.

Id. In the meantime, the district court adopted Judge Cuomo’s R&R on February 14th Id. After the

district court adopted the R&R, Mr. Fauci filed a motion opposing adoption of the R&R and

proposed a novel legal theory in support of the claim. Id. Mr. Fauci now argued that websites are

always required to accommodate disabilities under the ADA. Id. The district court reviewed this

new motion as if it were filed within the deadline. Id. Upon de novo review of the opposition to

the R&R, the district court granted Mr. Fauci’s motion for summary judgement and awarded him

declaratory relief and an injunction against Spicy Peach. Id. at 24.

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SUMMARY OF THE ARGUMENT

There are two issues in this case: whether the district court abused its discretion by

allowing Plaintiff-Appellee Anthony Fauci to introduce novel legal arguments to the district

court which were not submitted to the magistrate judge, and whether in light of that novel

argument, that Spicy Peach, Inc.’s website is a place of public accommodation under the ADA,

Mr. Fauci should succeed on the merits. The answer to both questions is no.

The district court erred when it allowed Mr. Fauci to introduce a novel legal argument.

First, the district held they were compelled by statute to hear the novel legal argument, but this is

based on a misinterpretation of the relevant statutes for the statute provides discretionary power

to the district court. It is possible for a party to waive their right to object to a magistrate judge’s

recommendation. Second, the district court should have used their discretion to reject

introduction of the novel argument because it would be unfair to the opposing party. Mr. Fauci’s

argument fails this threshold procedural issue and therefore his case should proceed no further.

If Mr. Fauci’s claim overcomes the threshold procedural issue, he should still lose on the

merits for Spicy Peach’s website is not subject to the regulations of the ADA. This is because the

website is not a “place of public accommodation,” a necessary to be subject to the ADA’s

regulations. This too is a threshold matter. Yet, even if Spicy Peach’s website was found to be a

“place of public accommodation,” that does not mean it is necessarily subject to the ADA. The

district court should have applied nexus test. A correct application of the nexus test should have

found that there was insufficient nexus between the Spicy Peach website and a physical location

to make the website subject to the ADA’s regulation. Therefore, even if Mr. Fauci is allowed to

introduce his novel legal argument he should still lose on the merits of his case.

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ARGUMENT

I. THE DISTRICT COURT ERRED WHEN IT DECIDED THAT IT SHOULD

CONSIDER MR. FAUCI’S NOVEL LEGAL ARGUMENT, WHICH WAS NOT SUBMITTED TO OR CONSIDERED BY THE MAGISTRATE JUDGE.

On the matter before this Court, the district court determined that the de novo review

required by 28 U.S.C. § 636 (b)(1) of the Federal Magistrate Act compels it to hear Mr. Fauci’s

novel legal argument even though he failed to raise the argument in front of the magistrate judge.

R. at 19. However, this is wrong. The district court’s holding that a plain reading of the Federal

Magistrate Act does not include any language that indicated a party can definitely waive their right

to object to a magistrate judge’s findings misconstrues the meaning of the statute. In so doing, the

district court applied the wrong approach for the standard of discretion. Instead of the Fourth

Circuit approach, the district court should have applied a proper interpretation of the Wells Fargo

balancing test for determining the proper standard of discretion, which would have disposed of

Mr. Fauci’s novel legal argument.

A. The Correct Interpretation of the Relevant Statutes Suggests That A Party Can Waive Their Right to Object to a Magistrate Judge’s Findings

The correct interpretation of the relevant statutes suggests that a party can waive their right

to object to a magistrate judge’s findings. See United States v. Raddatz, 447 U.S. 667, 673 (1980).

Within a designated amount of time, any party may file objections to the proposed findings and

recommendations. See 28 U.S.C. § 636(b)(1)(C). After this time, a judge of the court makes a de

novo determination of those portions of the proposed findings or recommendations to which the

parties may have objected. See Id. The district court judge may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate. See id. The Supreme Court

ultimately concluded in Raddatz that § 636 (b)(1) adequately protects due process rights. See

Raddatz, 447 U.S. at 680.

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In United States v. Raddatz, the respondent contended that the district court was required

to rehear the testimony that the magistrate judge heard to complete its findings and

recommendations in order for the district court to make an “independent evaluation of credibility.”

Raddatz, 447 U.S. at 673. On this issue, the Raddatz Court made two key holdings. The first is

that on dispositive motions, the Federal Magistrates Act calls for a de novo determination, which

“Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial

discretion, chose to place on a magistrate’s proposed findings and recommendations.” Id. at 674-

76. Second, the Raddatz Court concluded that “to construe § 636 (b)(1) to require the district court

to conduct a second hearing whenever either party objected to the magistrate’s credibility findings

would largely frustrate the plain objective of Congress to alleviate the increasing congestion of

litigation in the district courts.” Raddatz, 447 U.S. at 676 n.3.

Here, the district court vacated its original Memorandum and Order, decided on February

14, 2020, and granted Mr. Fauci’s request for an extension of time to file objections to the R&R,

despite the e-filing error. R. 12. Consequently, the record now reflects that Mr. Fauci’s objection

filed on February 20, 2020, attacking the R&R on new legal grounds. R. at 12. Even though the

text of the statute does not expressly provide for a waiver, it does so in effect. The statute explicitly

provides with very clear and permissive language that a district judge may “accept, reject, or

modify in whole or in part, the findings or recommendations made by the magistrate.” If the district

judge here did decide to exercise sound judicial discretion by disposing the novel legal argument

not submitted to or considered by the magistrate judge, it would be consistent with congressional

intent and its aim to alleviate the increasing congestion of litigation in the district courts.

Furthermore, the Supreme Court has already resolved the constitutionality of the Federal

Magistrate Act. While the district court judge alone acts as the ultimate decisionmaker, the statute

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grants the broad discretion to accept, reject, or modify the magistrate’s proposed findings. Thus,

the district court judge erred when it held that a plain reading of § 636 (b)(1) did not provide that

a party can definitively waive their right to object to a magistrate’s R&R.

B. When Considering A Novel Legal Argument Not Raised Before A Magistrate Judge, The District Court Should Follow The Second Circuit Approach, Which Would Definitively Dispose Mr. Fauci’s Novel Legal Argument.

Even though the district court considered the Second Circuit approach in the alternative,

the district court incorrectly applied the Wells Fargo balancing test and should have determined

that it should not consider Mr. Fauci’s novel legal argument. An exercise of discretion should

consider the following factors: (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 law for which no additional fact-finding is required; (4)

whether the resolutions of the new legal issue is not open to serious question; (5) whether

efficiency and fairness militate in favor or against consideration of the new argument; and (6)

whether manifest injustice will result if the new argument is not considered. See Wells Fargo Bank

N.A. v. Sinnott, No.2:07-CV-169, 2010 WL 297830, at *9-10 (D.Vt. Jan. 19, 2010).

The district court in Wells Fargo held that the interest of justice militated against

consideration of the defendant’s novel legal argument. See id. at *10. The only reason for failing

to initially present the novel legal issue was their pro se status. See id. at 10-11. The novel legal

issue raised by the defendant was available to the appellant from the very beginning of the claim.

See id. at *11. If the Wells Fargo court would have exercised its discretion and considered the

novel legal argument presented by the defendant, further briefing, evidentiary hearings, and

additional fact-finding may have been necessary to dutifully parse out the details of the issue. See

id. at *11-12. The new issue also raised an issue of first impression under state law, which would

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subject any ruling to contradictory interpretations and thus, not beyond any doubt. See id. at *12

(quoting Official Comm. Of Unsecured Creditors of Color Tile, Inc., 322 F.3d 147, 159 (2d Cir.

2003)). Finally, no manifest injustice would result if the court declined to consider the defendant’s

new argument. See id. at *12-13. Particularly, if the court exercised its discretion and decided this

issue of first impression under state law wither de novo, through certification, or by returning it to

the Magistrate Judge for further proceedings, the defendant’s new argument would continue

litigation that spanned over two years and ultimately require significant briefing. See id. at *13

(quotation omitted). Such a result would significantly impair the judicial efficiency associated with

referring this matter to the Magistrate Judge. See id. at *13.

Under a similar analysis, Mr. Fauci’s novel legal argument should also be disposed of

because it does not overcome the threshold illustrated in Wells Fargo. Mr. Fauci’s only hardship

would have been his pro se status except for the fact that he was able to obtain representation and

subsequently submit an argument. The malpractice of his attorneys does not appear to amount to

an injustice for the reason mentioned in the following factor. There are no intervening cases or

statutes that have change the state of the law in this matter before the court. Furthermore, this is a

matter of first impression for this jurisdiction as there are no prior state case law that would indicate

whether a holding by the district court would create any contradictory interpretations. The district

court below appears to misapprehend the significance of deciding a novel legal issue that could be

subject to doubt within its jurisdiction. Due to the nature of the question, it’s also highly likely that

the question would require further briefing, evidentiary hearings, and additional fact-finding. Mr.

Fauci’s objection alone contains a “voluminous series of affidavits and exhibits supporting the

new legal argument” that amounts to several hundred pages of material. R. at 12.

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For these reasons, the district court erred when it decided that it should consider Mr. Fauci’s

novel legal argument, which was not submitted to or considered by the magistrate judge.

II. THE DISTRICT COURT INCORRECTLY RULED THAT SPICY PEACH’S WEBSITE IS SUBJECT TO THE REGULATIONS OF THE AMERICANS WITH DISABILITIES ACT.

The district court erred when it held that Spicy Peach’s website is subject to the Americans

with Disabilities act (“ADA”). Title III of the Americans with Disabilities Act of 1990 (the

“ADA”) prohibits discrimination on the basis of disability in public accommodations and

commercial facilities. 42 U.S.C. § 12182. In order to be subject to the ADA, the plaintiff must

show that they were “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.” § 12182(a). Spicy Peach’s website is not a place of public

accommodation as the district court found. However, assuming arguendo that websites can be

places of accommodation, the district court still incorrectly held that online services which

otherwise meet the requirements of public accommodations are always subject to the ADA. The

court should have used the nexus test because it is more appropriately tailored to the facts of this

case.

A. Spicy Peach’s website is not a “place of public accommodation” for purposes of the ADA.

The ADA does not explicitly define “place of public

accommodation.” However, regulations issued by the Department of Justice (“DOJ”) define

a “place of public accommodation” as including any “facility operated by a private entity whose

operations affect commerce and fall within at least one of” the twelve categories listed in §

12181(7). 28 C.F.R. § 36.104. The term “facility” is defined as “all or any portion of buildings,

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structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks,

passageways, parking lots, or other real or personal property….” Id. Accordingly, “[u]nder the

plain and unambiguous terms of the ADA, the applicable federal regulations, and the decisions of

other circuit courts, a “place of public accommodation” subject to Title III must be a physical,

concrete facility or location that falls within one of the twelve categories set forth in 42 U.S.C.

12181(7).” Access Now, Inc, v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1317 (S.D. Fla.

2002).

In this case, the district court failed to properly interpret the meaning of “public

accommodation” in the ADA as something that is necessarily a physical location for in three ways:

(1) the court did not properly address the terms “place” and “public accommodation” pursuant to

Supreme Court decisions and the ADA’s accompanying federal regulations; (2) the court misused

the doctrine of ejusdem generis and ignored the doctrine of noscitur sociis; and (3) the court only

referenced part of the legislative history and ignored other relevant history related to this issue.

1. The district court neglected to attach any legal definition to “place of public accommodation” pursuant to federal regulations.

Regulations of an administrative agency implementing a statute are deferred to by the

courts in construing the statutes, unless they are “arbitrary, capricious, or manifestly contrary to

the statute.” Chevron, U.S.A., Inc., v. Nat’l Resources Defense Council, 467 U.S. 837, 844

(1984). The district court made no reference to the DOJ regulations being “arbitrary, capricious,

or manifestly contrary to the statute,” so there was no reason for the court to ignore the regulations

in their entirety. The district court addressed neither the regulatory definition of “place of public

accommodation” nor the regulatory definition of “facility.” Instead, the court elected to create its

own definition and stated that “Spicy Peach is subject to the ADA by virtue of its function, rather

than by virtue of its form.” R. 22. First, this is a made-up rule based on an incorrect reading of the

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relevant caselaw, and the court’s lack of a citation demonstrates this. Second, it is also patently

untrue as the DOJ’s regulations make abundantly clear that a website is only a “place of public

accommodation” if it is a “facility,” and its “operations” both “affect commerce and fall within at

least one” of the enumerated categories of public accommodation. See 28 C.F.R. § 36.104. This

means that the entity needs both the function and the form to be subject to the ADA. A website

does not meet that definition. Therefore, the district court’s reasoning is erroneous.

2. The district court misinterpreted the examples of what constitutes a “place of public accommodation” in the ADA and thus failed to recognize that a place of accommodation must be a physical location.

Per the rules of statutory interpretation, when a catch-all phrase in a statute follows a list

of specific examples, the doctrine of ejusdem generis dictates that “the general words are construed

to embrace only objects similar in nature to those objects enumerated by the preceding specific

words.” Circuit City Stores, Inc., v. Adams, 532 U.S. 105, 114-115 (2001) (quoting 2A Norman J.

Singer, Sutherland on Statutes and Statutory Construction § 47.17, at 116 (4th ed. 1991) (emphasis

added)). The examples of places of public accommodation used in the ADA, “place of exhibition

and entertainment;” “place of recreation;” and “sales or rental establishment,” are each catch-

all phrases that follows a list of more specific examples. See 42 U.S.C. § 12181(7). Therefore, the

doctrine of ejusdem generis governs their interpretation.

When applying the rule of ejusdem generis, the general terms are limited to the other more

specific terms contained in their respective, separate subsections. In the ADA context, the other

more specific terms are all physical structures. Internet websites are obviously not physical

structures. This is supported by the holding in Reno v. ACLU, which stated that the Internet is a

“unique medium – known to its users as ‘cyberspace’ - located in no particular geographical

location but available to anyone, anywhere in the world, with access to the internet.” Reno v.

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ACLU, 521 U.S. 844, 851 (1997). Furthermore, “the Supreme Court has recognized that the term

‘establishment’ is ‘normally used in business and in government . . . as meaning a distinct physical

place of business.’” Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530, 535 (5th Cir.

2016). Indeed, it is clear that a website cannot be “similar in nature” to the enumerated public

accommodations because all of the examples have a “particular geographical location” as a result

of their being physical entities. Therefore, because it is axiomatic that public accommodations are

necessarily physical locations, these examples cannot be stretched by the normal powers of

statutory interpretation to include websites.

The noscitur a sociis doctrine of statutory interpretation also supports the view that places

of public accommodation must be physical locations. Noscitur a sociis provides that the

construction of ambiguous terms should be informed by an analysis of accompanying text “to

avoid the giving of unintended breadth to the Acts of Congress.” Parker v. Metropolitan Life Ins.

Co., 121 F.3d 1006, 1014 (6th Cir. 1997) (en banc). (quoting Jarecki v. G.D. Searle & Co., 367

U.S. 303, 307 (1961)); see also United States v. Williams, 533 U.S. 285, 294 (2008). For

example, Parker held that the ambiguity in terms like “travel service” should be resolved by

limiting them to physical places because the places of public accommodation in § 301(7) are

physical places. See id.

Applying the doctrine of noscitur a sociis here, the ambiguous terms “place of exhibition

and entertainment,” “place of recreation,” and “sales and or rental establishment” should be

limited to physical places because the terms next to them in the statute are physical places. Adding

websites to be included under these ambiguous terms would indisputably give unintended breadth

to the ADA that Congress did not intend.

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3. The full legislative history of the ADA suggests that place of public accommodation must be physical places.

Even though Congress intended that the types of accommodation and services provided to

individuals should keep pace with the changing technology of the times, that only addresses one

part of the statute. See H.R. Rep. 101 -485, 108, 1990, U.S.C.C.A.N. 303, 391. That part of the

legislative history only addressed the “operations,” or “functions,” of the entity at issue.

The district court failed to reference the part of the legislative history that actually

explained the purpose for which the statute was written. The ADA was written to “enable more

people to leave their home and be participating citizens.” See H.R. Rep. No. 101-336, at 1104

(1990); see also id. at 1507 (“We need to take another step to actively help more people with

disabilities move out of the home environment.”). This quite clearly shows that the ADA was

written to enable people with disabilities to enjoy different services and

accommodations outside the confines of their homes, like Spicy Peach’s brick-and-mortar store.

B. Even If, Arguendo, A Website Can Be Subject To The ADA, The District Court Incorrectly Ruled That Online Services Which Otherwise Meet The Requirements Of Public Accommodations Are Always Subject To The ADA.

No court has ever held that online services which otherwise meet the criteria for “public

accommodation” are always subject to the ADA as the district court suggested. R 22. Therefore,

the district court effectively created a new standard in this case. The district court attempted to

apply the same rationale used in the First and Seventh Circuits, but it was unsuccessful for

two reasons: (1) the Seventh Circuit case that the district court cited contradicts the holding of the

district court; (2) the First Circuit standard is not applicable to the facts of this case.

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1. The Seventh Circuit cases hold that online services which otherwise meet the criteria for “public accommodation” are not always subject to the ADA.

In the Seventh Circuit case cited by the district court, Morgan v. Joint Admin. Bd. v.

America, 268 F.3d 456 (7th Cir. 2001), the Seventh Circuit relied on the reasoning of Doe v.

Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999), to reach its decision. In Doe, the

court did not deviate from the majority approaches used in other circuits, and the court held

that Title III of the ADA does not require a seller to alter their product to make it equally valuable

to both the disabled and nondisabled. Doe, 179 F.3d at 563 (“This conclusion is consistent with all

the appellate cases to consider this or cognate issues” (citing Rogers v. Dept. of Health &

Environmental Control, 174 F.3d 431 (4th Cir. 1999)); see also Parker v. Metropolitan Life Ins.

Co., 121 F.3d 1006, 1010-14 (6th Cir.) (en banc). “The common sense of the [ADA] is that

the content of the goods or services offered by a place of public accommodation is not

regulated.” Id. at 559 (emphasis added).

Thus, the Seventh Circuit cases are not about the disabled being unable to use a particular

service that is offered to the public because a disability prevents them from so doing. Rather, these

cases are about public accommodations refusing service because of a disability. See, e.g., Doe,

179 F.3d at 559 (“The owner or operator of, say, a camera store can neither bar the door to the

disabled nor let them in but then refuse to sell its cameras to them on the same terms as to other

customers.” (citing Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir.

1997) (emphasis added)). By analogy, “it is apparent that a store is not required to alter its

inventory in order to stock goods such as Braille books that are especially designed for disabled

people.” Id. (quoting Lenox v. Healthwise of Kentucky, Ltd., 149 F.3d 453, 457 (6th Cir.

1998)); see also 28 C.F.R. § 36.307. Likewise, “[a] camera store may not refuse to sell cameras to

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a disabled person, but it is not required to stock cameras specially designed for such

persons.” Id. at 560 (emphasis added).

That said, the Seventh Circuit cases referenced the Carparts Dist. Ctr., Inc., v. Automotive

Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994), in dicta, but only the

undiscerning reader of the Seventh Circuit cases could conclude that Carparts was central to their

holdings. Those cases were not decided on the grounds that intangible entities, otherwise meet the

requirements for “public accommodation,” are always subject to the ADA. The district court’s

insistence that this is a general rule of applicability in the Seventh Circuit is not only a dramatic

distortion of the cases it cited; it is also contradictory to its ruling. Put another way, the Seventh

Circuit holdings would not require Spicy Peach to adjust the content (adult videos) on its website

to be specifically designed for the disabled; the holdings would only require that Spicy Peach not

refuse to allow the disabled (Plaintiff) to rent the videos on account of his disability.

2. The district court misinterpreted the purported rule in a case from Massachusetts, and that case is inapplicable in the present dispute.

Nat’l Ass’n of the Deaf v. Netflix, 869 F.Supp.2d 196 (D. Mass. 2012), did not hold, as

Plaintiff and the district court suggest, that “online services which otherwise meet the requirements

of public accommodations are always subject to the ADA,” regardless of whether there is

a nexus to a physical storefront. R. 22. It held only that “entities that provide services in the

home may qualify as places of public accommodation.” Nat’l Ass’n of the Deaf, 869 F.Supp.2d at

201 (emphasis added). Thus, the district court in this case misinterpreted the holding

in Nat’l Ass’n of the Deaf. Not only does Nat’l Ass’n of the Deaf leave open the possibility that a

website may possibly not qualify as a place of public accommodation, that decision was pursuant

to a specific set of facts involving website-only video streaming businesses. See Nat’l Fed’n of the

Blind v. Scribd, Inc., 97 F.Supp.3d 565, 571 (D.Vt. 2015) (“[T]he District of Massachusetts

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extended the reasoning of Carparts and held that Title III covers entities

providing exclusively web-based services to the public.” (emphasis added)). Specifically,

the Nat’l Ass’n of the Deaf court did not base its ruling on any specific content that Netflix offers

to the public; it based its ruling with respect to the issue of whether website-only

businesses qualify as public accommodations subject to the ADA.

Title III of the ADA guarantees full and equal access to “the full and equal enjoyment of

the goods, services, facilities, privileges, advantages, or accommodations of any place of public

accommodation.” 42 U.S.C. § 12182(a) .Nowhere in the text of the Act or its implementing

regulations, however, does the ADA require that each mode of “connect[ing] customers to . . .

goods and services” must be individually analyzed. In other words, the statute does not require

an examination of each individual mode of access to determine whether that mode is fully and

equally accessible.

In an amicus brief for the United States, the DOJ recommended that the United States

Supreme Court deny a writ of certiorari in Magee v. Coca-Cola Refreshments USA, Inc., 833

F.3d 530 (2016), because a vending machine does not qualify as a “sales or rental

establishment.” The Department of Justice contended that the examples of “sales or rental

establishment[s]” listed in the statute all have a discrete, standalone location or identity. Brief for

the United States as Amicus Curiae at 8-9, Magee v. Coca-Cola Refreshments USA, Inc., 833

F.3d 530 (2016), 2017 WL 3085074. The DOJ further explained that “[a]lthough vending

machines sell goods to the public, they lack the other features that are characteristically

associated with the enumerated sales establishments.” Id. Perhaps most importantly, to explain

that vending machines do not have a discrete, standalone location or identity, the DOJ reasoned

that “vending machines are ordinarily located within a larger establishment, often a business that

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itself qualifies as a Title III public accommodation, as a courtesy to the business’s

customers.” Id. (emphasis added).

Here, the district court even conceded a key distinction between Netflix and Spicy

Peach. R. 10 (describing Spicy Peach’s website as “in addition to” the brick-and-mortar store).

Indeed, the only way that Spicy Peach’s website could be considered a public accommodation in

accordance with the DOJ’s interpretation, is if it were considered a separate entity. The only

way that deaf people can take advantage of and enjoy the services that Netflix has to offer is to

provide closed captioning. In contrast, deaf people can still enjoy the services that Spicy Peach

offers to the public through its brick-and-mortar store. If the accommodation is a service, and there

is an option for the disabled to enjoy the service in a way that is altered for their enjoyment in a

brick-and-mortar store, then the disabled have not been denied the service. If websites can

qualify as public accommodations, and Spicy Peach’s website is “in addition to” the brick-and-

mortar store, then an argument that Plaintiff was denied “full and equal enjoyment of the services”

that Spicy Peach offers to the public is untenable.

The district court seemed to suggest that “full and equal enjoyment of services” means that

every aspect of the content of the service offered to the public must be equally accessible to the

disabled. This is both in contravention to the Seventh Circuit cases and impractical. For

example, buses are required to have wheelchair accessible seating. However, buses also have non

wheelchair accessible seating as well. If, as the district court seemed to suggest, each mode of

access is required to be equally accessible, then regular seating on buses would be in violation of

the ADA because regular seating is inherently unequal for those that require an alternative mode

of access. Notwithstanding the inequality between the accessibility of seats on buses, both those

confined to wheelchairs and able-bodied riders can still equally enjoy the service provided.

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C. Assuming, Arguendo, That Websites Can Be Places Of Public Accommodation, The District Court Should Have Applied The Nexus Test.

The district court should have applied the nexus test in this case. Other circuit courts have

made it clear that places of public accommodation under the ADA are limited to physical facilities

and require plaintiffs to establish “a nexus between the challenged service and the premises of the

public accommodation.” Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279, 1284 n. 8 (11th

Cir. 2002). Specifically, the test is used to determine whether the plaintiff was denied a service

online that is also offered in a brick-and-mortar store due to their disability.

The nexus test is not a test to determine whether a website is rendered a “public

accommodation” under Title III as the district court seemed to suggest. See R. 20. The test is used

to determine whether a website denies access to services “of” a physical facility subject to the

ADA. If the complained of service is offered exclusively by the website, then the plaintiff was not

denied the service of a place of public accommodation. However, if both the physical facility and

the website offer a particular service, then the nexus test is satisfied. In the event there is a sufficient

nexus between services offered by the website and the services offered by the physical facility,

then an “auxiliary aid” must be provided to accommodate the disabled plaintiff.

Here, three of the movies Plaintiffs sought to rent are not subject to the ADA because there

is not a sufficient nexus between Spicy Peach’s website and the brick-and-mortar store. To

the extent that there is a nexus between “Home Alone 2: Quarantined Together” and the brick-

and-mortar store, Spicy Peach has provided a sufficient mode of access.

1. Three of the movies Plaintiff sought to rent are not subject to Title III because they are only offered online.

Plaintiff cites Nat’l Fed’n of the Blind v. Target Corp., for the proposition that Title III

“covers the services ‘of’ a place of public accommodation, not the services ‘at’ or ‘in’ a place of

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public accommodation.” 452 F.Supp.2d at 943, 953 (S.D. Cal. 2006). By doing that, Plaintiff made

a concession that favored Spicy Peach. The only service Plaintiff can claim he was denied was a

service “of” Spicypeachrentals.com. He was not denied services “of” Spicy Peach’s brick-and-

mortar store because the three of the movies he was unable to watch are only services “of” Spicy

Peach’s website as they are not offered in the store.

Specifically, the Target court explained that “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, 452

F.Supp.2d at 954 (emphasis added). The court further emphasized that “intangible barriers ‘restrict

a person’s ability to enjoy the defendant entity’s goods, services and

privileges.” Id. (quoting Rendon, 294 F.3d at 1283). In all, the Target court held only that a

website that “impedes the full and equal enjoyment of goods and services offered in [brick-and-

mortar] stores,” is subject to the ADA. See id. At 956 (“To the extent that Target.com offers

information and services unconnected to Target stores, which do not affect the enjoyment of goods

and services offered in Target stores, the plaintiffs fail to state a claim under Title III of the

ADA.”) Thus, the Ninth Circuit demonstrated that proper application of the ADA still requires the

plaintiff to identify what the “covered accommodation” is in order to successfully argue they were

denied “full enjoyment of [the covered accommodation’s] services or goods.”

In other words, the district court’s analysis fell short because its reasoning presupposes

that websites are a covered accommodation. In fact, the Target court did not hold that websites

that websites that “otherwise meet the requirements of public accommodation” are always subject

to the ADA. Moreover, the Target court did not hold that websites that are connected to “places

of public accommodation” are likewise always subject to the ADA.

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Here, Plaintiff rested his entire argument on the misguided premise that because there is a

website in addition to a brick-and-mortar store that offers different content than the brick-and-

mortar store, then it is subject to Title III of the ADA. Indeed, there is no “nexus” between the

three movies presently in question offered by Spicy Peach’s website and the “premises” of a

“public accommodation.” Thus, to the extent that their products are only available online, they are

not subject to the ADA because there is no nexus between the disparity in benefits and services

offered online and the service or good offered in their physical store.

2. To the extent there may be a nexus between offering “Home Alone 2: Quarantined Together” and the brick-and-mortar store, Spicy Peach is not in violation of the ADA because it provides an auxiliary aid on the video offered in the store.

Title III prohibits discrimination in the enjoyment of “the goods, services, facilities,

privileges, advantages, or accommodations of any place of public accommodation.” “The ordinary

meaning of this language is that whatever goods or services the place provides, it cannot

discriminate on the basis of disability in providing enjoyment of those goods and services.” Weyer

v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000). “This language does not

require provision of different goods or services, just nondiscriminatory enjoyment of those that are

provided.” Id. “[T]he statute expressly states that the denial of equal participation or the provision

of separate benefit[s] are actionable under Title III.” Target, 452 F.Supp.2d at 954 (quotations

omitted) (emphasis added). Even if a far-reaching, liberal construction of the ADA might conclude

that an additional online streaming option to a brick-and-mortar store may be of the same general

class as the public accommodations listed in the definition section of the ADA, the question of

whether the online streaming option denied Plaintiff the provision of a “separate benefit” was left

unanswered.

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DOJ’s “auxiliary aid requirement allows a public accommodation to provide the

information in any format, so long as it results in effective communication.” Id. at 956; 28 C.F.R.

§ 36.303(c)(1). This requirement ensures that individuals with disabilities experience no

difference in the full enjoyment of goods and services “because of the absence of auxiliary aids

and services.” 42 U.S.C.§ 12181(b)(2)(A)(iii). These provisions make clear state that even where

some modes of access to a public accommodation’s goods or services are not fully accessible to

individuals with disabilities, the public accommodation can still comply with the ADA by ensuring

that other modes of access which facilitate “effective communication with individuals with

disabilities” are available to those who require them. 28 C.F.R. § 36.303(c)(1)(1)(ii) (“[T]he

ultimate decision as to what measures to take rests with the public accommodation, provided that

the method chosen results in effective communication.”). “By its very definition, an auxiliary aid

or service is an additional and different service that establishments . . . offer the disabled.” Arizona

ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 672 (9th Cir. 2010). Thus, the

ADA does not require an assessment of each individual mode of access to determine whether that

mode is fully and equally accessible so long as there is “an additional and different service” offered

to the plaintiff.

In the present case, the district court’s decision abandoned this commonsense approach. It

focused in a vacuum on whether Spicy Peach’s online streaming option was fully and

equally accessible in its own right, without requiring Plaintiff to plead that other modes of access

were insufficient to provide effective communication. The court fell far short of completing its

analysis because it only asked whether Spicy Peach’s website is considered a “public

accommodation.” R. 20. Rather, the district court should have asked whether Spicy Peach’s online

streaming option denied the “equal participation or the provision of separate benefit” of

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a “service[] of a place of public accommodation.” See 42 U.S.C. § 12182(a) (emphasis

added); see also Target, 452 F.Supp.2d at 953 (“The statute applies to the services of a place of

public accommodation. . . .”) (emphasis added)). Because Spicy Peach’s website offers the adult

films that Plaintiff sought to rent available with closed captioning in its brick-and-mortar store, it

has provided the plaintiff with full and equal access to fully enjoying them. Therefore, Spicy

Peach’s website does not violate the ADA.

CONCLUSION

For the foregoing reasons, this Court should overturn the Summary Judgement for the

Plaintiff-Appellee, Mr. Fauci, and the award of declaratory relief and an injunction against

Defendant-Appellant, Spicy Peach, and grant Summary Judgement for Spicy Peach.

Respectfully Submitted,

Attorneys for the Appellant

September 21, 2020