In the UNITED STATES COURT OF APPEALS

for the THIRTEENTH CIRCUIT

C.A. No. 20-00238 ________________________________________

ANTHONY FAUCI, Plaintiff-Appellee,

v.

SPICY PEACH, INC., Defendant-Appellant.

________________________________________

ON APPEAL FROM JUDGEMENT OF THE DISTRICT COURT

FOR THE DISTRICT OF EMORY ________________________________________

BRIEF FOR THE APPELLANT

________________________________________

Team Letter S Attorneys for the Appellant

Submitted: September 21, 2020

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TABLE OF CONTENTS Page

I. TABLE OF AUTHORITIES..............................................................................................iii II. STATEMENT OF THE ISSUES........................................................................................1 III. STATEMENT OF THE FACTS.........................................................................................2 IV. SUMMARY OF THE ARGUMENT..................................................................................4 V. ARGUMENT.......................................................................................................................6 A. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE

FAUCI’S NOVEL LEGAL ARGUMENT SHOULD NOT HAVE BEEN PERMITTED TO BE HEARD BY THE DISTRICT COURT...............................................................................6

1. The District Court Incorrectly Interpreted The Plain Text Of The Statute......................7

2. There Are Multiple Approaches Among the Circuit Courts On Whether An

Argument May Be Presented To The District Court On Objection Of A Magistrate’s Report & Recommendation When The Argument Was Not Raised Before The Magistrate........................................................................................................................8

a. Spicy Peach Requests This Court To Adopt The Rule Used By The First Circuit

Because It Is Grounded In Supreme Court Precedent And Promotes The Purpose Of The Federal Magistrate Act As Intended By Congress.....................9

b. Even If This Court Were To Adopt The Balancing Test Used Within The

Second Circuit, The Factors Lean In Favor Of The Appellee’s Waiver............12

c. The District Court Inappropriately Adopted The Fourth Circuit’s Rule Because The Rule Eliminates The Purpose Of The Federal Magistrate Act....................14

B. THIS COURT SHOULD REVERSE THE DISTRICT COURT’S GRANT OF SUMMARY

JUDGMENT BECAUSE AS A MATTER OF LAW SPICY PEACH’S WEBSITE DOES NOT CONSTITUTE A PLACE OF PUBLIC ACCOMMODATION AND THEREFORE IS NOT SUBJECT TO THE PURVIEW OF THE ADA…………………….………………..17

1. The Appropriate Interpretation Of The ADA Is That The ADA Only Applies To

Physical Locations, And Therefore, The ADA Would Not Cover Claims Involving Websites........................................................................................................................18

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2. The District Court Erroneously Relied On The First And Seventh Circuit’s Incorrect Interpretation Of The ADA Meaning of Public Accommodation, Going Beyond The Scope Of What Congress Intended...........................................................21

3. The Only Other Appropriate Standard This Court Should Adopt Is the Nexus Test,

And This Court Should Hold That Spicy Peach’s Website Does Not Have A Sufficient Nexus To Its Brick-And-Mortar Store..........................................................22

VI. CONCLUSION..................................................................................................................27

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I. TABLE OF AUTHORITIES

Page(s) CASES Access Now, Inc. v. Southwest Airlines, Co.,

277 F. Supp. 2d 1312 (S.D. Fla. 2002)................................................................................. 22, 23

Ariz. ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666 (9th Cir. 2010) ...................................................................................................... 17

Bertuzzi v. Copiague Union Free Sch. Dist.,

2020 U.S. Dist. LEXIS 124897 (E.D.N.Y. July 15, 2020). ................................................ 12, 13 Cullen v. Netflix, Inc.,

880 F.Supp.2d 1017 (N.D. Cal. 2012) ....................................................................................... 23

Cupit v. Whitley, 28 F.3d 532 (5th Cir. 1994) ........................................................................................................ 10

Cupp v. Naughten, 414 U.S. 141 (1973) ..................................................................................................................... 9

Doe v. Trs. of Bos. Coll., 892 F.3d 67 (1st Cir. 2018) .......................................................................................................... 6

Earll v. eBay, Inc., 599 Fed. App’x. 695 (9th Cir. 2015) .......................................................................................... 23

Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998) ....................................................................................................... 22

G. v. Fay Sch., 391 F.3d 1 (1st Cir. 2019) ........................................................................................................ 6, 7

Gomez v. Bang & Olufsen Am., Inc., No. 1:16-cv-23801-JAL, 2017 WL 1957182 (S.D. Fla. Feb. 2, 2017) ................................ 24, 25

Gomez, v. United States, 490 U.S. 858 (1989) ................................................................................................................... 16

Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995) ................................................................................................................... 14

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

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Henrietta D. v. Bloomberg,

331 F.3d 261 (2d Cir. 2003) ....................................................................................................... 17

J.H. by & through Holman v. Just for Kids, 248 F. Supp. 3d 1210 (D. Utah 2017) ........................................................................................ 19

Jancik v. Redbox Automated Retail, LLC, No. SAVC 13-1387-DOC (RNBx), 2014 WL 1920751 (C.D. Cal. May 14, 2014) .................. 23

Magee v. Coca-Cola Refreshments, Inc., 833 F.3d 530 (5th Cir. 2016) ...................................................................................................... 19

Marshal v. Chater, 75 F.3d 1421 (10th Cir. 1996) .................................................................................................... 10

Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006) ........................................................................... 24, 25, 26

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ........................................................................................................ 7

Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) .................................................................................................... 22

Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988) .................................................................................................... 8, 9

Patton v. Johnson, 915 F.3d 827 (1st Cir. 2019) ........................................................................................................ 9

Reed v. Wichita County, 795 F.3d 456 ............................................................................................................................... 11

Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279 (11th Cir. 2002) ............................................................................................ 23, 24

Ridenour v. Boehringer Ingelheim Pharmaceuticals, Inc., 679 F.3d 1062 (8th Cir. 2012) .................................................................................................... 10

Rivera-Marcano v. Normeat Royal Dane Quality, 998 F.2d 34 (1st Cir. 1993) ........................................................................................................ 11

Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019) ...................................................................................................... 20

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Tauscher v. Phoenix Bd. of Realtors, Inc., 931 F.3d 959 (9th Cir. 2019) ........................................................................................................ 6

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

United States v. George, 971 F.2d 1113 (4th Cir. 1992) ............................................................................................ 6, 8, 15

United States v. Midgette, 478 F.3d 616 (4th Cir. 2007) ...................................................................................................... 16

United States v. Raddatz, 447 U.S. 667 (1980) ......................................................................................................... 9, 11, 14

United States v. Rosado-Cancel, 917 F.3d 66 (1st Cir. 2019) .......................................................................................................... 9

Wells Fargo Bank N.A. v. Sinnott, No. 2:07-CV-2010 WL 297830 (D. Vt. Jan. 19, 2010).............................................. 8, 12, 13, 14

Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) .............................................................................................. 22, 23

Wimmer v. Cook, 774 F.2d 68 (4th Cir. 1985) .......................................................................................................... 7

Zaid v. Smart Financial Credit Union, No. H-18-1130, 2019 WL 314732 (S.D. Tex. Jan. 24, 2019) .................................................... 20

CONSTITUTIONAL PROVISIONS U.S. Const. art. III ............................................................................................................. 12, 16, 18 STATUTES 28 U.S.C. § 636 (2020) ........................................................................................................... 10, 19 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ................................................. passim RULES Fed. R. Civ. P. 56 ...................................................................................................................... 6, 11 Fed. R. Civ. P. 72 ............................................................................................................................ 7

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OTHER AUTHORITIES ADA Education and Reform Act of 2017, H.R. 620, 115th Cong. (2017), available at https://www.congress.gov/bill/115th-congress/house-bill/620..................................................... 21

Dep’t of Justice, ADA Title III Technical Assistance Manual Covering Public

Accommodations & Commercial § III-1.2000. www.ada.gov/taman3.html ............................ 18 Ejusdem Generis, Black’s Law Dictionary (11th ed., 2019) ........................................................ 21 H.R. Rep. No. 94-1609, p. 3 (1976) .............................................................................................. 11 H.R. Rep. 101–485 (II), 100, 1990 U.S.C.C.A.N. 303, 383 ......................................................... 19

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II. STATEMENT OF THE ISSUES

A. Did the District Court for the District of Emory adopt and apply the correct procedural

rule on whether to consider Appellee’s novel legal argument which was not submitted to

or considered by the magistrate judge?

B. Is Spicy Peach, Inc.’s website a place of public accommodation under Title III of the

Americans with Disabilities Act in whole or in part?

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III. STATEMENT OF THE FACTS

A. Factual Background

Spicy Peach, Inc. (“Spicy Peach”), an adult video rental store, opened its only store front

in 2000. R. 3. After over a decade of successful operation, Spicy Peach began to lose sales due to

the growth and popularity of online streaming services. R. 9. To stay competitive in the market,

Spicy Peach launched a website, www.SpicyPeachRentals.com, with streaming and rental services

for its customers in 2015. R. 3.

SpicyPeachRental.com offers patrons the freedom to download and stream Spicy Peach’s

videos completely online, through a Web browser or a “Smart” TV. R. 3, 10. Videos from the

website are available for 48 hours after streaming or downloading, regardless of when the user

rented the video. Id. While in store rentals are due back 48 hours after the in-store transaction. Id.

The website does not facilitate online purchases for in-store pick up. R. 10. All transactions on the

website are handled independently from those conducted in store. R. 4, 10. The website only has

two connections with the physical store front; (1) the store’s location and contact information are

listed and (2) the ability to purchase gift cards that may be used at the in-person location. Id.

Plaintiff-Appellee Anthony Fauci (“Appellee”) visited SpicyPeachRentals.com on March

15, 2019, and rented “Home Alone 2: Quarantined Together.” (“Home Alone 2”) R. 3-4, 10.

Plaintiff needs closed captioning to watch videos, due to his hearing impairment. R. 3, 9. After

discovering that “Home Alone 2” lacks closed captioning, rather than speaking with Spicy Peach

directly, Plaintiff proceeded to rent three more videos from the website that also do not have

subtitles. R. 4, 10.

All of the videos in Spicy Peach’s store, including “Home Alone 2,” provide closed

captioning. R. 4, 10-11. The website offers a larger selection of videos than the store front,

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however, the videos available for streaming do not have subtitles. R. 4, 10. The Plaintiff’s only

complaint is that the online videos do not have closed captioning. R. 11.

B. Procedural Background

Plaintiff filed his complaint pro se, without specification, on April 1, 2019. R. 11. Each

party moved for summary judgment on July 1, 2019. Neither party objected to the District Court’s

assignment of Magistrate Judge Andrew Cuomo on July 7, 2019, for a Review and

Recommendation (“R&R”). Id. Judge Cuomo set August 1, 2019, as the filing deadline. Id.

Plaintiff did not object to the deadline but instead moved the Court for additional discovery time.

Id. On August 8, 2019, Plaintiff was denied additional discovery time however, Judge Cuomo

granted a time extension until September 1, 2019, for Fauci to file his opposition to Spicy Peach’s

motion for summary judgment. Id. Coron & Varis, LLP contacted Plaintiff about possible pro

bono representation in early August, Plaintiff accepted. Id. Spicy Peach and Plaintiff timely filed

their motions by the September 1st deadline. Id.

On October 15, 2019, Judge Cuomo granted Plaintiff’s August 21, 2019, stay of

adjudication and reconsidered his request for additional discovery, and extended discovery until

January 13, 2020. R. 11-12. On January 27, 2020, Judge Cuomo issued his R&R recommending

the case’s dismissal in favor of Spicy Peach. R. 12. Plaintiff timely filed his objection to the R&R

and due to an e-filing error, it was not received until past the deadline. Id. Without knowledge of

Plaintiff’s objection, the District Court entered judgment in accordance with the R&R for Spicy

Peach. Id.

On discovery of the error, the District Court properly permitted the objection. Id. The

objection contained new legal arguments that were not presented to the magistrate. Id. The District

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Court concluded the previous judgment is vacated, and after review entered judgment for Plaintiff.

Id. Spicy Peach properly appealed to this Court. R. 1.

IV. SUMMARY OF THE ARGUMENT

The District Court erred in granting summary judgment for Appellee because the lower

court should not have permitted Appellee’s novel legal argument, (Part A.), and Spicy Peach’s

website is not a place of public accommodation under the Americans with Disabilities Act

(“ADA”), (Part B.).

A. The Federal Magistrate Act (“FMA”) was initiated to provide our district courts with a

reprieve. The District Court incorrectly interpreted the plain text of the FMA and thusly adopted a

rule that is not in congruence with the FMA. (Part A.1.) To require parties to fully litigate their

case before the assigned magistrate and waive any argument that was not presented to the

magistrate is the most efficient and just rule for this Court to establish. (Part A.2.a.)

There are several different methods proscribed within the Circuit Courts to handle the first

issue in this case. Even if this Court were to follow the balancing test used in some district courts,

the test would lean in favor of the Appellee’s waiver. (Part A.2.b) Additionally, the approach

adopted by the District Court, requiring the District Court to hear all arguments presented to it

regardless if the magistrate heard the argument, exceeds what Congress intended with the FMA

and creates injustice within our system. (Part A.2.c)

B. Second, the District Court for the District of Emory (“the lower court”) erred in the

adoption of the First and Seventh Circuit’s interpretation of the ADA finding that Spicy Peach’s

website is a place of public accommodation. (Part B.)

The lower court erroneously held that Spicy Peach’s website is a place of public

accommodation. (Part B.) There is a split among the federal circuit courts as to whether a website

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is a place of public accommodation. The split in interpretation has cause great debates throughout

the country. As explained below, the lower court’s adoption of the First and Seventh Circuit’s

interpretation of the ADA to include websites, contradicts the plain language of the statute. By

adopting this approach, the Court intruded on Congress’s constitutional authority as the law-

making body. (Part B.1.)

The correct interpretation of the ADA is that the enumerated list of public

accommodations, as set forth by the ADA, only applies to physical locations. Websites are

fundamentally different than any of the specific or general examples the ADA provides, and

therefore websites cannot be classified as a place of public accommodation because it does not fit

into any of the statutorily defined categories. The statute, as written, was meant to protect

individuals in physical places, and to expand this well-defined standard exceeds Congress’s

original intent. (Part B.2.)

If this Court believes that the nexus test is the most appropriate standard, the Appellee has

failed to allege a sufficient nexus between Spicy Peach’s website and its brick-and-mortar store.

Even if a sufficient nexus was alleged, Appellee must establish that he has been denied full and

equal enjoyment of Spicy Peach’s brick-and-mortar store. Any and all information and services

unconnected to the use and enjoyment of the physical location would be insufficient to state an

ADA claim. The record demonstrates that Spicy Peach’s lack of the closed captions on its online

videos did not deprive Appellee of the full access and equal enjoyment of Spicy Peach’s brick-

and-mortar store. (Part B.3.)

For all of the foregoing reasons, the lower court’s judgment should be reversed and this

Court should hold that Internet websites are not places of public accommodation.

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V. ARGUMENT

This case is about protecting a small business through maintaining due process to ensure

our judicial system may run as efficiently as possible and protecting our laws from manipulation.

The District Court erred when it permitted Plaintiff to present an argument that was not raised

before the assigned magistrate judge and when it granted summary judgment in favor of the

Plaintiff, holding that a website is a place of public accommodation subject to the Americans with

Disabilities Act. Appellant-Defendant, Spicy Peach, Inc. (“Spicy Peach”) requests this Court

reverse the District Court’s decision and dismiss the case in favor of Spicy Peach.

Circuit courts review a “district court’s grant of summary judgment de novo.” Tauscher v.

Phoenix Bd. of Realtors, Inc., 931 F.3d 959, 962 (9th Cir. 2019). The review is conducted by

“drawing all reasonable inferences in favor of the non-moving party.” G. v. Fay Sch., 391 F.3d 1,

12 (1st Cir. 2019) (quoting Doe v. Trs. of Bos. Coll., 892 F.3d 67, 79 (1st Cir. 2018)). A summary

judgment motion shall be granted if “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE APPELLEE’S NOVEL LEGAL ARGUMENT SHOULD NOT HAVE BEEN PERMITTED TO BE HEARD BY THE DISTRICT COURT.

The District Court erred when it adopted the Fourth Circuit’s interpretation and application

of Federal Magistrate Act, 28 U.S.C. § 636(b) (2020). R. 14. (holding that once de novo review is

triggered the district court “is required to hear any new arguments in order to comply with the de

novo standard.” (citing United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992))). Spicy

Peach requests this Court to vacate the District Court’s holding, a minority approach, and adopt

the majority rule of prohibiting an argument to the district court that was not presented to the

assigned magistrate.

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1. The District Court Incorrectly Interpreted The Plain Text Of The Statute.

When a district court interprets a statute, the circuit court assesses the analysis de novo.

Fay Sch., 931 F.3d at 8. The Federal Magistrate Act permits a district court to assign dispositive

motions, without the parties’ consent, to a magistrate judge for a recommendation as to the

motion’s outcome. See § 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a). Once assigned, the magistrate

promptly conducts the hearing and files a Report & Recommendation (“R&R”). Fed. R. Civ. P.

72(a). After the R&R has been served to the parties, both parties have fourteen days to file an

objection to the R&R. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). “A judge of the court shall make a de

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

recommendations to which objection is made.” § 636(b)(1)(C). The district court “may accept,

reject, or modify, in whole or in part, the findings or recommendations made by the magistrate[.]”

Id. (emphasis added). Additionally, the district court “may also receive further evidence or

recommit the matter to the magistrate [] with instructions.” Id. (emphasis added).

In its order, the District Court surmised that the plain language of § 636 does not

“definitively” waive a party’s right to object to a magistrate’s R&R. R. 13. Additionally, the statute

does not explicitly state a party waives its right to appeal if it does not object to the R&R. See §

636(b). However, the statute is explicit in that a party has fourteen days, after the R&R’s service,

in which it may file an objection to the magistrate’s findings to be reviewed by the district court.

§ 636(b)(1)(C). Many courts, including the Fourth Circuit, have found this to mean if a party does

not object to the R&R they do not have a right to district court review. Wimmer v. Cook, 774 F.2d

68, 72 (4th Cir. 1985); Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982) (by failing to file

an objection to the R&R, “a party thereby waives his right to appellate review of his objections.”).

Therefore, the statute does provide an avenue for waiver to exist. See Thomas v. Arn, 474 U.S.

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140, 145 (1985) (holding that the congressional policy of the Federal Magistrate Act, to improve

judicial access and efficiency, “is best served by our holding that a party shall file objections with

the district court or else waive right to appeal.”).

The pressing issue of this case is whether a party may put forth an argument to the district

court, in its objection to the R&R, that was not presented to the magistrate. R. 13. The plain text

of the Federal Magistrate Act does not permit nor deny this proposition. See § 636. Due to the

statute’s silence, further analysis is warranted.

2. There Are Multiple Approaches Among the Circuit Courts On Whether An Argument May Be Presented To The District Court On Objection Of A Magistrate’s Report & Recommendation When The Argument Was Not Raised Before The Magistrate.

In determining how this Court should decide this matter of first impression, it is appropriate

to examine how other federal courts have handled this issue. The Supreme Court of the United

States has not spoken on this issue and the collection of caselaw has developed multiple

approaches. See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st

Cir. 1988) (holding that an argument not raised before the assigned magistrate is not reviewable

under de novo review by the district judge.); see Wells Fargo Bank N.A. v. Sinnott, No.2:07-CV-

2010 WL 297830, at *4 (D. Vt. Jan. 19, 2010) (applying a six factor balancing test on when a new

argument may be heard by the district judge); see George, 971 F.2d 1113, 1118 (4th Cir. 1992)

(de novo review requires all arguments to be heard by the district judge regardless of whether the

magistrate judge reviewed the argument.).

Circuit courts have based their ability to provide a waiver in § 636 through the Supreme

Court’s decision Thomas v. Arn ̧474 U.S. 140 (1985) (holding a Court of Appeals may establish

a rule in that failure to file an objection to the R&R waives the party’s right to appeal to the district

court.). The Supreme Court reasoned “rules of procedure should promote, not defeat the ends of

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justice.” Id. Additionally, the adopted rule may not restrict the district court’s own jurisdiction. Id.

at 146. It is fully within the Circuit Court’s power to issue “procedures deemed desirable from the

viewpoint of sound judicial practice although in nowise commanded by statute or by the

Constitution.” Cupp v. Naughten, 414 U.S. 141, 146 (1973). Further, a rule that causes a party to

solely forfeit their right to appeal does not invalidate a court’s U.S. Const. art. III supervisory

power, Thomas, 474 U.S. at 147, so long as the district court retains “total control and jurisdiction”

of the entire process. United States v. Raddatz, 447 U.S. 667, 681 (1980).

a. Spicy Peach Requests This Court To Adopt The Rule Used By The First Circuit Because It Is Grounded In Supreme Court Precedent And Promotes The Purpose Of The Federal Magistrate Act As Intended By Congress.

Spicy Peach requests this Court to adopt the First Circuit’s majority rule, hold the Appellee

waived his new argument, and dismiss the case in favor of Spicy Peach.

The First Circuit looked to the purpose of the FMA Act to determine that an argument not

raised before the assigned magistrate may not be presented on appeal to the district court judge.

Paterson-Leitch, 840 F.2d at 991; see e.g. United States v. Rosado-Cancel, 917 F.3d 66, 69 (1st

Cir. 2019) (holding that defendant waived his issue preclusion claim by not raising it before the

magistrate). The rule is supported by the purpose behind the magistrate system, that is “to assume

some of the burden imposed [on the district courts] by a burgeoning caseload.” Paterson-Leitch,

840 F.2d at 991 (alteration in original). Were the court to hold otherwise, a magistrate would be

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

hearing, and save its knockout punch for the second round.” Id. Additionally, the First Circuit

explains the absence of such a rule would permit a litigant to initiate a case, present her arguments,

wait for an outcome, and, if need be, completely change her arguments before the district court.

Patton v. Johnson, 915 F.3d 827, 837 (1st Cir. 2019).

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The Fifth, Eighth, and Tenth Circuits have also adopted the same rule of the First Circuit.

Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994) (because the party failed to raise a legal

argument before the magistrate, the argument was waived.); Ridenour v. Boehringer Ingelheim

Pharmaceuticals, Inc., 679 F.3d 1062, 1066-67 (8th Cir. 2012) (the legal argument was waived

because plaintiff did not present the argument to the magistrate.); Marshal v. Chater, 75 F.3d 1421,

1426 (10th Cir. 1996) (in denying a due process argument, the court held “[i]ssues raised for the

first time in objections to the magistrate judge’s recommendations are deemed waived.”).

To adopt a rule contrary to the majority rule followed by the First Circuit, would go against

the entire purpose of the FMA and render all magistrates utterly useless. If a party could bypass

the magistrate and reach the district court simply by objecting to the R&R, it would encourage

parties to not fully litigate their cases in front of the magistrate and undermine the magistrate’s

authority. Parties taking this tactic, render the magistrate useless.

Permitting a party to present one form of its case before the magistrate and another before

the district court, would create an injustice to the opposing party, as in this case. Spicy Peach hired

attorneys and has invested time and money throughout this case’s entire process, over a year.

Requiring Spicy Peach, a small business, to invest more capital into this suit simply because

Appellee’s counsel forgot to include an argument to the magistrate, would be an abuse of the

system and inequitable to Spicy Peach.

It may very well be that Appellee’s counsel made a mistake due to its time constraint.

However, Appellee’s counsel had a month to submit a brief, which it did. Additionally, if the

argument is essential to its case, counsel could have requested more time from the court to submit

its brief, as is routine in practicing law, especially given the pro bono circumstances. Further, it is

an unfortunate occurrence, however, parties that forget an essential component of their case may

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cause the case to be dismissed, as is the nature of summary judgment. See Fed. R. Civ. P. 56; see

e.g. Rivera-Marcano v. Normeat Royal Dane Quality, 998 F.2d 34, 38-39 (1st Cir. 1993) (the court

granted summary judgment in defendant’s favor when the record failed to establish each element).

The First, Fifth, Eighth, and Tenth Circuits are in line with what the legislature intended as

well as the Supreme Court’s interpretation of the FMA. The House Report stated a de novo review

requires “the district judge in making the ultimate determination of the matter, would have to give

fresh consideration to those issues to which specific objections has been made by a party.” H.R.

Rep. No. 94-1609, p. 3 (1976). The House continued with the “use of the words ‘de novo

determination’ is not intended to require the judge to actually conduct a new hearing on contested

issues.” Id. The Supreme Court approved of this determination and stated that on dispositive

motions, “the statute calls for a de novo determination, not a de novo hearing.” Raddatz, 447 U.S.

at 674.

This language explains the legislature never intended the district court to conduct an entire

new hearing, as would be required by presenting a new issue because the magistrate did not hear

arguments nor did he rule on the issue. The district court may only review what is in the record,

which would not include an argument not presented to the magistrate. The FMA even provides a

solution if the record needs more development, § 636(b)(1) permits the district court to “receive

further evidence or recommit” the issue to the magistrate.

Further, a rule such as the First Circuit’s is in line with our appellate process. When

appealing a district court’s decision, a party may not appeal to an issue not identified in the record.

Reed v. Wichita County, 795 F.3d 456, 469 n. 8 (5th Cir. 2015) (a circuit court “will not consider

evidence or arguments that were not presented to the district court . . .”). This Court should

establish this rule to stay in harmony with the overall appellate system.

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In conclusion, this Court should adopt the majority rule articulated by the First Circuit

because it promotes judicial efficiency and properly applies the law as intended by Congress and

practiced by the Supreme Court. For theses reasons, Spicy Peach requests this Court to reverse the

District Court’s order and dismiss the case in favor of Spicy Peach.

b. Even If This Court Were To Adopt The Balancing Test Used Within The Second Circuit, The Factors Lean In Favor Of The Appellee’s Waiver.

The District Court proposes that if this Court were to use the balancing test, as proscribed

by the Second Circuit, the result would be the same as if this Court adopted a rule requiring the

District Court to hear all novel legal arguments under a de novo review regardless if the magistrate

heard the argument. R. 19. However, the Second Circuit has not officially adopted the balancing

test; only district courts within the Second Circuit have approved of the test. See Wells Fargo Bank

N.A., 2010 WL 297830 at * 2 (“[District of Vermont] predicts that the Second Circuit will adopt”

the same standard as the Eleventh Circuit, and the court provides a balancing test to aid in its

implementation.); see Bertuzzi v. Copiague Union Free Sch. Dist., 2020 U.S. Dist. LEXIS 124897

at *15 n. 2 (E.D.N.Y. July 15, 2020). If this Court deems the balancing test is the governing rule,

Spicy Peach advocates the test falls in favor of waiver and this Court should rule against Appellee

and dismiss the case in favor of Spicy Peach.

The District of Vermont’s balancing test consists of six factors:

why the argument was not previously raised, whether the law has changed since the R&R, whether the new issue is purely legal, whether the new issue is straightforward, whether the new issue’s consideration is promoted by efficiency and fairness, and whether the new issue will create manifest injustice if it is not heard.

Wells Fargo Bank N.A. 2010 WL 297830 at *4. This rule was adopted in congruence with the

Second Circuit’s standards for considering new legal arguments in motions for reconsideration

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and considering new evidence in an objection to a magistrate’s R&R. Id. The District of

Vermont believes that granting the district court this broad discretion promotes U.S. Const. art.

III and the FMA. Id. at *2.

In applying the factors to the current case, this Court should dismiss the case in Spicy

Peach’s favor. As to the first factor, the record does not reflect why the argument was left out

of Appellee’s case to the magistrate. The District Court hints that Appellee’s counsel was

rushed by the filing deadline. R. 11. However, Appellee retained counsel in early August 2019

and had close to a month to submit their brief. Id. This is an ample amount of time for an

attorney to research the case and present a complete argument. Also, it is regular practice to

have deadlines extended, especially in cases where a pro se litigant obtains counsel. Because

the Appellee does not provide a reason for the oversight, this factor leans in favor of waiver.

The second factor strongly favors Spicy Peach because there has not been a change in

the law, therefore there is no basis under this factor to present a new argument. See e.g.

Bertuzzi, 2020 U.S. Dist. LEXIS at *15 n.2 (finding in favor of waiver where a plaintiff did

not provide a reason for excluding the arguments and there had not been a change in the law.).

The third factor leans in favor of the Appellee in that this Court has determined that no

additional facts are necessary to the case’s disposition. R. 1.

Contrary to the District Court’s finding, the fourth factor weighs in favor of Spicy

Peach. Appellee’s novel legal issue has not been previously decided and may require additional

facts and analysis to determine. Thus, this factor is in favor of Spicy Peach; the District Court

even expressed concern in deciding the issue without conducting a full proceeding, R. 18,

which goes against the intent of Congress as reflected by the House Reports.

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The final two factors, in tandem, weigh in favor of Spicy Peach. Accepting the new

argument would destroy the purpose of the FMA by making the Magistrate’s position

pointless, if the parties did not have an intention to fully litigate their case before the Magistrate

there is no need for the FMA. The new argument would ruin judicial efficiency. Additionally,

no manifest injustice will occur by declining Appellee’s new argument. On the other hand, to

decide a matter of first impression will result in further litigation and may present additional

legal issues that the parties will inevitably dispute, as was the case in Wells Fargo Bank N.A.

2010 WL 297830 at *5. Consequently, the parties may not be able to fully litigate the issue

because one party is represented pro bono and the other is a small business with stretched

capital to begin with.

The Court should be cautious when considering to adopt a balancing test because of

their malleability, and also the Supreme Court’s treatment of such methods. See e.g. Grubart

v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547 (1995) (denying the use of a balancing

test because the factors “would be hard to apply, jettisoning relative predictability for the open-

ended rough-and-tumble of factors, inviting complex argument in a trial court and a virtually

inevitable appeal.”).

In conclusion, even if this Court determines that the balancing test, adopted in some

districts in the Second Circuit, is the appropriate device for this case, this Court should reverse

the District Court’s decision and rule in favor of Spicy Peach.

c. The District Court Inappropriately Adopted The Fourth Circuit’s Rule Because it Eliminates The Purpose Of The Federal Magistrate Act.

The District Court adopted the Fourth Circuit’s minority approach on the first issue of this

case. R. 13-14. Spicy Peach requests this Court to reverse the District Court’s adoption of this rule,

adopt the First Circuit’s approach, and dismiss this case in favor of Spicy Peach.

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The Fourth Circuit holds that, under de novo review, a district court shall hear any and all

arguments directed towards an issue that were objected to in the magistrate’s R&R, regardless if

the argument was raised before the magistrate. George, 971 F.2d at 1118. The Fourth Circuit

reasons to hold otherwise would be contrary to the FMA and render the district court’s decision to

constitutional challenges. Id. (explaining that U.S. Const. art. III and the FMA require the “ultimate

decision” to be left to the district court). The basis for its decision was founded in its interpretation

de novo review application, “consideration of an issue as if it had not been decided previously.”

Id.

The Fourth Circuit has expanded de novo review beyond what was intended by Congress.

The House Report of the FMA explicitly states “de novo determination” was not meant for the

district court to conduct a new hearing and would only make its own determination based on the

record built before the magistrate, and only in “specific instances” would the district court take

additional matters. Raddatz, 447 U.S. at 675 (quoting H.R. Rep., at 3). To require the district court

to hear all arguments in a party’s objection goes beyond the “specific instances” referred to directly

in Congress’s intent. The First Circuit’s rule does not contradict this provision because the rule

does not prohibit the district court from reviewing the magistrate’s order. 28 U.S.C. § 636(b)

(permitting a judge to accept, modify, or reject a magistrate’s R&R).

An argument could be made that a rule refusing to hear new arguments would prohibit

arguments such as clear error. However, the FMA permits the district court to review the

magistrate’s entire R&R de novo regardless if there is an objection. Thomas, 474 U.S. at 154. Also,

this rule limits a district court’s power under the FMA because it no longer has the power to oversee

the magistrate. Instead the magistrate is now superfluous, with no authority whatsoever. The

district court now simply has to review the case as if the magistrate did not exist.

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In the Supreme Court, it is a well settled policy “to avoid an interpretation of a federal

statute that engenders constitutional issues if a reasonable alternative interpretation poses no

constitutional question. Gomez, v. United States, 490 U.S. 858, 864 (1989). The District Court held

that the FMA conflicts with the system set up by Congress, therefore, claiming the FMA is

unconstitutional. R. 14, 15. If this Court establishes the Fourth Circuit’s rule and the District

Court’s reasoning, the constitutionality of the FMA would be called into question. This would go

against the Supreme Court’s logic in Gomez because permitting this Court to establish a district

court’s procedural jurisdiction would not raise constitutional questions in these circumstances and

is fully with in this Court’s supervisory powers. See Thomas, 474 U.S. at 145-146.

Lastly, the Fourth Circuit has contradicted itself on a party’s right to object or appeal. “[T]o

preserve for appeal an issue in a magistrate judge’s report, a party must object to the finding or

recommendation on that issue with sufficient specificity so as reasonably to alert the district court

of the true ground for the objection.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).

This contradicts the rule set out in George in that in George it does not matter if the argument or

issue was heard by the magistrate. Whereas in Midgette, for the issue to be brought on appeal, it

must have been in the magistrate’s report and specifically addressed to in the objection.

In conclusion, this Court should not adopt the Fourth Circuit’s rule because it effectively

deprives the FMA of purpose. Spicy Peach therefore requests this Court to vacate the District

Court’s order, establish the First Circuit’s respective rule and dismiss the case in favor of Spicy

Peach.

For all of the reasons stated above, Spicy Peach respectfully requests this Court to adopt

the First Circuit’s approach, prohibiting parties from raising an argument to the district court that

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was not presented before the magistrate, reverse the District Court’s order, adopt the Magistrate’s

Report & Recommendation, and dismiss the case in favor of Spicy Peach.

B. THIS COURT SHOULD REVERSE THE DISTRICT COURT’S GRANT OF SUMMARY JUDGMENT BECAUSE AS A MATTER OF LAW SPICY PEACH’S WEBSITE DOES NOT CONSTITUTE A PLACE OF PUBLIC ACCOMMODATION AND THEREFORE IS NOT SUBJECT TO THE PURVIEW OF THE ADA.

Plaintiff-Appellee’s claim against Spicy Peach fails because SpicyPeachRentals.com is not

subject to Title III of the American with Disabilities Act of 1990 (“ADA”), and therefore, the

District Court’s grant of Appellee’s Motion for Summary Judgment should be reversed. This Court

should review a district court’s interpretation and construction of a federal statute, such as the

ADA, de novo. Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 904 (9th Cir. 2019).

Under Title III of the ADA, “no individual shall be discriminated against on the basis of

disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,

or accommodations of any place of public accommodation.” 42 U.S.C. § 121812(a) (2020). In

other words, to state a claim under Title III of the ADA, Plaintiff must allege that (1) he is disabled

within the meaning of the ADA; (2) Defendant’s website is a “place of public accommodation”

subject to the ADA; and (3) Plaintiff was denied the opportunity to participate in or benefit from

Defendant’s services or was otherwise discriminated against by Defendant, by reason of Plaintiff’s

disabilities. Ariz. ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666, 670 (9th Cir.

2010); Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).

Here, the only disputed requirement is whether Spicy Peach’s website is a place of public

accommodation. Title III does not specifically define “place of public accommodation,” however,

it provides that “private entities are considered public accommodations . . . if the operations of

such entities affect commerce.” 42 U.S.C. § 12181(7). Due to the differing opinions among the

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Circuits about what constitutes a place of public accommodation under the ADA, its application

to websites is vehemently deliberated in courts across the United States.

1. The Appropriate Interpretation Of The ADA Is That The ADA Only Applies To Physical Locations, And Therefore, The ADA Would Not Cover Claims Involving Websites.

Title III of the ADA only applies to physical locations; therefore, Spicy Peach is

not liable for violations attributed to SpicyPeachRentals.com. Congress listed twelve

categories of examples of places of public accommodation:

(A) an inn, hotel, motel, or other place of lodging ...; (B) a restaurant, bar, or other establishment serving food or drink; (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (D) an auditorium, convention center, lecture hall, or other place of public gathering; (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (G) a terminal, depot, or other station used for specified public transportation; (H) a museum, library, gallery, or other place of public display or collection; (I) a park, zoo, amusement park, or other place of recreation; (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

42 U.S.C. § 12181(7)(A)–(L). Many Courts and the Department of Justice (“DOJ”) have agreed

that this list is indeed “exhaustive.” Dep’t of Justice, ADA Title III Technical Assistance Manual

Covering Public Accommodations & Commercial § III-1.2000 (“Can a facility be considered a

place of public accommodation if it does not fall under one of these twelve categories? No, the 12

categories are an exhaustive list.”). www.ada.gov/taman3.html. This enumerated list is exhaustive,

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and as a matter of plain language and ordinary usage, a website does not fit into any of these

categories.

The Fifth Circuit explored legislative history and noted that this exhaustive list should be

construed liberally and “consistent with the intent of the legislation” however, when Congress and

the DOJ provided examples of liberal constructions, that limited the term to actual physical

locations. Magee v. Coca-Cola Refreshments, Inc., 833 F.3d 530, 535 (5th Cir. 2016).1 Even under

the most liberal interpretation of the statue, a website cannot fall under the definition of public

accommodation because it is not a physical location. 2

Magee is demonstrative of the appropriate application and interpretation of “places of

public accommodation” with regards to the ADA. There, a plaintiff sued Coca-Cola because the

vending machines, he encountered in a bus station and hospital allegedly, were not accessible to

individuals who were blind. Id. at 531, 536. The Fifth Circuit rejected the plaintiff’s argument that

vending machines are a “place of public accommodation” precisely because “a vending machine

is not akin to any of the listed examples” in § 12181(7) and did not fit any of the categories in the

statutory definition. Id. at 534, 536.

In Zaid v. Smart Financial Credit Union, a nearly identical claim as the present action, the

Southern District of Texas applied the Fifth Circuit’s precedent in Magee to consider whether

websites constitute places of public accommodation. No. H-18-1130, 2019 WL 314732, at *5 (S.D.

1 The House Reports provide examples of liberal constructions that that are not expressly mention under “retail sales establishment” that are only physical actual stores, such as “bookstores, video stores, stationery stores, pet stores, computer stores.” H.R. Rep. 101–485 (II), 100, 1990 U.S.C.C.A.N. 303, 383.

2 See e.g. J.H. by & through Holman v. Just for Kids, 248 F. Supp. 3d 1210, 1217 (D. Utah 2017) (holding that an educational activity program for disabled adults was not a “place of public accommodation because the plain text of Title III’s definition of “public accommodation” is restricted to “actual, physical places.”)

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Tex. Jan. 24, 2019). The Court concluded websites do not fall under Congress’s definition of places

of public accommodation because they are not a “sales or rental establishment” as enunciated in

the statute. Id. at *14-15. “While websites may be affiliated with brick-and-mortar businesses,

which are places of public accommodation that does not render the businesses’ websites

themselves places of public accommodation,” the Court concluded. Id.

This Court should follow the logic and rational applied by the Zaid Court. The lower court

found that Spicy Peach’s website could fall under three categories: “place of exhibition and

entertainment,” “place of recreation,” and “sales or rental establishment.” Websites are

fundamentally different than any of the specific or general examples listed in the statute, and do

not fit under the provided descriptions. Just as the Zaid Court, this Court should hold that a website

cannot be a place of public accommodation because they fall under none of the categories

enunciated in the statute.

Following the correct interpretation and application of the ADA as set by Magee, this Court

should hold that a website cannot be classified as a place of public accommodation because it does

not fit into any of the statutorily defined categories. As the statute is written, Title III protects

individuals in physical places, and was never intended to include individual’s engagement in

online activities or transactions. While Spicy Peach does not dispute that SpicyPeachRentals.com

connects its customers to its brick-and-mortar location, the ADA was simply not drafted with the

specific regulation of virtual spaces in mind. This proper application leads to one conclusion,

which is that a website is not a “place of public accommodation,” and the District Court erred in

finding so, and therefore their grant of Appellee’s Motion for Summary Judgment should be

reversed.

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2. The District Court Erroneously Relied On The First And Seventh Circuit’s Incorrect Interpretation Of The ADA Meaning of Public Accommodation, Going Beyond The Scope Of What Congress Intended.

The lower court erred in its adoption of the minority approach followed by the First and

Seventh Circuits. This approach is fundamentally flawed and goes beyond the scope of the statute.

The court relied on the principle of ejusedem generis, however, its application of the canon is

inapposite. Ejusdem generis, “of the same kind or class,” is a canon of construction holding that

when a general word or phrase follows a list of specifics, the general word or phrase will be

interpreted to include only items of the same class as those listed. Ejusdem Generis, Black’s Law

Dictionary (11th ed., 2019). Thus, the principle operates to limit a general term to those that are

similar to said term. In the exhaustive list provided by Congress, there is no mention of the internet,

websites, or any virtual platform and an expansion of the exhaustive list goes beyond the authority

of the court and what Congress actually intended the ADA to regulate.

Although, a potential explanation for this issue is the lack of internet when the Act was

originally enacted, this point can be nullified by the fact that Congress has, since the enactment of

the statute, met on the issue and has not decided to expand and broaden its original exhaustive list.

ADA Education and Reform Act of 2017, H.R. 620, 115th Cong. (2017), available at

https://www.congress.gov/bill/115th-congress/house-bill/620. If websites should be treated as

public accommodations and regulated under the ADA, this decision is best left to Congress. It has

been almost thirty years since the enactment of this Act, and Congress has had ample opportunity

to expand the ADA’s definition of places of public accommodations to include internet websites.

The lack of Congressional action speaks volumes on this issue.

Additionally, the Southern District of Florida has explained that an expansion of the ADA

would go beyond a Court’s authority by stating, “to fall within the scope of the ADA as presently

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drafted, a public accommodation must be a physical, concrete structure. To expand the ADA to

cover ‘virtual spaces’ would be to ‘create new rights without well-defined standards.” Access Now,

Inc. v. Southwest Airlines, Co., 277 F. Supp. 2d 1312, 1318-19 (S.D. Fla. 2002) (declining to

construe “a place of public accommodation” to include Southwest’s Internet websites). Any

interpretation that extends the prohibition beyond physical places would render this statutory text

entirely superfluous. Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998).

An interpretation of the ADA that operates as an expansion of the Act to cover claims not

explicitly intended for by Congress, would be the equivalent of the courts stepping into the place

of Congress in writing and creating laws. This is precisely what the lower court has done by

granting Appellee’s Motion for Summary Judgment. The plain language of the statute and its

regulation establishes that the ADA only applies to physical locations, and consequently the lower

court erred in granting Appellee’s motion for summary judgment against Spicy Peach as Appellee

has failed to state a claim.

3. The Only Other Appropriate Standard This Court Should Adopt Is the Nexus Test, And This Court Should Hold That Spicy Peach’s Website Does Not Have A Sufficient Nexus To Its Brick-And-Mortar Store.

If this Court, is not persuaded by the Fifth Circuit’s minority approach the next and only

logical alternative is the “nexus test” followed by the Third, Sixth, Ninth, and Eleventh Circuits.

See Ford, 145 F.3d 601; Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997); Weyer v.

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

et al, 741 Fed. App’x 752 (11th Cir. 2018). The Ninth Circuit has interpreted the term “place of

public accommodation” to require “some connection between the good or service complained of

an and the actual physical place.” Earll v. eBay, Inc., 599 Fed. App’x. 695 (9th Cir. 2015); Weyer,

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198 F.3d at 1114 (9th Cir. 2000).3 Meaning to establish a successful ADA claim the plaintiff must

demonstrate that the defendant’s website impedes the plaintiff’s access “to a specific, physical,

concrete space.” See e.g., Access Now, Inc., 227 F. Supp. 2d at 13218–19 (S.D. Fla. 2002) (finding

plaintiff failed to establish a nexus between southwest.com and any restriction on the full

enjoyment of a physical concrete place of public accommodation); Jancik v. Redbox Automated

Retail, LLC, No. SACV 13-1387-DOC (RNBx), 2014 WL 1920751, at *9 (C.D. Cal. May 14,

2014) (holding a website was not a place of public accommodation because it was not a physical

place and there was not a sufficient nexus between the website and physical kiosks).

The Eleventh Circuit has held, explicitly, that Title III only applies to concrete, physical

spaces. Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1285-86 (11th Cir. 2002). Establishing

that a sufficient Title III claim requires the plaintiff to demonstrate that an intangible barrier

impedes his ability to access a physical location. Id. at 1284. In Rendon, plaintiffs were disabled

individuals who, due to their disability, were unable to register their telephone entries as a potential

contestant on a television game show. Id. at 1280–81. The Eleventh Circuit noted that the ADA

applied to the use of a telephone entry system because the system acted as a barrier to the disabled

individuals’ access to the specific physical location of the studio hosting the gameshow. Id. at

1284. The Court found a nexus because the plaintiffs were “seeking to participate on equal terms

in the phone quiz only because it [was] a necessary prerequisite of appearing on the televised

contest in which they could potentially win a large sum of money. The phone quiz is therefore a

means of access to the public accommodation, not an end in itself.” Id. at 1286. Stated in simpler

3 The Ninth Circuit has established that website-only businesses are not places of public accommodation under the ADA. See, e.g., Cullen v. Netflix, Inc., 880 F.Supp.2d 1017, 1023 (N.D. Cal. 2012), aff’d, 600 F.App’x 508, 509 (9th Cir. 2015) (holding that Netflix’s website is unconnected to any physical, concrete retail establishment and is therefore not a public accommodation under the ADA); Earll v. eBay, Inc., 599 Fed. App’x. 695 (9th Cir. 2015) (holding that eBay’s website is not a place of public accommodation under the ADA).

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terms, the phone acted as an intangible barrier that impeded the plaintiff’s access to a concrete,

physical location.

Based on the Eleventh Circuit’s reasoning in Rendon and the plain text of the ADA, a

district court in Florida, recently dismissed a claim for failure to plead a sufficient nexus between

the defendant’s store and its alleged inaccessibility to the website. Gomez v. Bang & Olufsen Am.,

Inc., No 1:16-cv-23801-JAL, 2017 WL 1957182, at *3 (S.D. Fla. Feb. 2, 2017). The Court noted:

Based on the text of the Ada, the Eleventh Circuit’s reasoning in Redon and the rationale employed by other courts who have construed the ADA in the context of commercial websites, the [c]ourt concludes that a website that is wholly unconnected to a physical location is generally not a place of public accommodation under the ADA. However, if a plaintiff alleges that a website's inaccessibility impedes the plaintiff's “access to a specific, physical, concrete space[,]” and establishes some nexus between the website and the physical place of public accommodation, the plaintiff's ADA claim can survive a motion to dismiss.

Id. at *3. Thus, in order to state a claim under Title III of the ADA, a plaintiff must allege “an

actual (not hypothetical) impediment to the use of Defendant’s retail location.” Id. at 4.

Consequently, the plaintiff in Gomez, did not allege that the website impeded his access and

enjoyment of the physical location in question and the Court dismissed the action. Id.

Even if a sufficient nexus is present, all goods and services distinct and unrelated from a

physical place would not be subject to ADA accommodations, and a plaintiff who complaint is

based off such distinction would have failed to state a claim. Nat’l Fed’n of the Blind v. Target

Corp., 452 F. Supp. 2d 946, 956 (N.D. Cal. 2006). In Nat’l Fed’n of the Blind, the Court refused

to limit an ADA claim to prevention of physical access to a place of public accommodation, but

did hold that a plaintiff failed to state a claim under Title III of the ADA when “the extent that

Target.com offers information and services unconnected to Target stores, which do not affect the

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enjoyment of goods and services offered in Target stores.” Id. The decision in Nat’l Fed’n of the

Blind, such as various circuits and district courts decisions, further emphasizes the inaccessibility

of the website impediment of “the full and equal enjoyment of goods and services offered in the

physical place.” Id.

Similar to Gomez, Appellee fails to allege a “nexus” between Spicy Peach’s brick-and-

mortar stores and its website to successfully bring the website within the purview of the ADA.

Appellee’s one and only compliant is that the video content available for rent on Spicy Peach’s

website does not provided closed captioning. However, this sole complaint is not sufficient to

allege that the lack of closed captioning on Spicy Peach’s website prohibited his ability to access

Spicy Peach’s brick-and-mortar store.

There is no question that Spicy Peach’s brick-and-mortar store, being a place of public

accommodation as explicitly defined by the ADA, follows ADA regulations. However,

SpicyPeachRental.com is separate and distinct from its brick-and-mortar store. This distinction is

evidenced by the name of the website, SpicyPeachRental.com rather than simply SpicyPeach.com.

SpicyPeachRentals.com streams a variety of videos, some of which, are not even available at the

brick-and mortar location, and vice-versa. An individual is unable to rent a video on the website

and then pick up the video up from the store. When considering how rentals occur, Spicy Peach’s

brick-and-mortar store requires an individual to return the video 48 hours after their in-store

transaction, while the website time period only commences after the customer has downloaded or

streamed it. Aside, from the ability to access the store’s information from the website and purchase

gift cards online that can be used both online and in-store, the two locations are vastly different in

form and operation. Therefore, there in an insufficient nexus, between Spicy Peach’s brick-and-

mortar store, and SpicyPeachRentals.com.

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This Court might feel compelled to draw a parallel and find that a sufficient nexus exists,

because Spicy Peach’s website provides the address of the physical location and the opportunity

to purchase gift cards online. However, the Appellee has not alleged that these services were

unavailable to him. As seen in Nat’l Fed’n of the Blind, the Appellee must establish a nexus, which

deals directly with the services complained about. Because the Plaintiff does not complain about

the inaccessibility to the services that do potentially present a nexus with Spicy Peach’s brick-and-

mortar store, this claim should fail as it does not properly state an appropriate ADA claim.

As such, Appellee did not allege that the website impeded his full use and enjoyment of

the brick-and-mortar store. Because Appellee failed to allege that the inaccessibility of

SpicyPeachRentals.com prevents him from enjoying the goods and services of Spicy Peach’s

brick-and-mortar store, Plaintiff’s claim fails.

SpicyPeachRentals.com does would not fall under the scope of the ADA because there is

and insufficient nexus to its brick-and-mortar store. Thus, Appellee failed to state a claim, and the

District Court’s grant for summary judgment should be reversed.

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VI. CONCLUSION

For the foregoing reasons, Spicy Peach respectfully requests this Court to reverse the

District Court’s grant of summary judgment for Plaintiff-Appellee and hold Spicy Peach did not

violate the Americans with Disabilities Act of 1990 because its website is not a place of public

accommodation.

.

Submitted this 21st day of September 2020. /s/ Team Letter S Team Letter S Attorneys for Appellant Spicy Peach, Inc. Emory Bar # 123456 Doe & Doe, LLP 123 Mulberry Street, Emory, USA 12345 (123) 555-1234