Team E

CAUSE NO. 20-00238

IN THE

United States Court of Appeals for the Thirteenth Circuit

__________________

SPICY PEACH, INC. Appellant,

—v.—

ANTHONY FAUCI

Appellee.

__________________

ON REVIEW FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EMORY.

__________________

BRIEF FOR APPELLANT

__________________

ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS QUESTIONS PRESENTED ............................................................................................................ i TABLE OF CONTENTS ................................................................................................................ ii TABLE OF AUTHORITIES ...........................................................................................................v STATEMENT OF FACTS ...............................................................................................................2

A. Spicy Peach Creates Website Separate and Apart From Its Physical Store ........... 2 B. Anthony Fauci Purchases Adult Videos Online Instead of in Store ....................... 2 C. Fauci Files Suit With the District Court of Emory ................................................. 3 D. Fauci Obtains Legal Counsel .............................................................................. 3, 4

SUMMARY OF THE ARGUMENT ...............................................................................................5 ARGUMENT ...................................................................................................................................6 I. THE DISTRICT COURT ABUSED ITS DISCRETION IN GRANTING FAUCI’S

MOTION FOR SUMMARY JUDGMENT BY ALLOWING FAUCI TO RAISE A NEW ARGUMENT THAT WAS NOT TIMELY RAISED BEFORE THE MAGISTRATE JUDGE ......................................................................................................6

A. Fauci Was Not Entitled To De Novo Review Under The FMA Because He

Failed To Follow Court Rules By Not Timely Objecting To The R&R ................ 6

1. The District Court Improperly Considered Fauci’s Objection Because It Was Not Timely Filed .................................................................6

2. The District Court Abused Its Discretion Because There Were No

Special Or Extradorinary Circumstances ....................................................7 3. The Court Is Not Responsible For Fauci’s Missed Deadlines ....................8

B. Even If Fauci’s Objection Is Considered Timely, The Decision To Hear New Arguments Not Seasonably Raised Before The Magistrate Judge Contradicts The FMA’s Underlying Policy Objective Of Promoting Judicial Efficiency .............................................................................................................. 10

1. The Majority Of Courts Reject Arguments That Are Not Seasonably

Raised Before The Magistrate Judge Because They Increase Systemic Ineffecienes .................................................................................10

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2. Fauci Had A Full And Fair Opportunity To Present All Arguments

Before The Magistrate Judge, But Failed To Do So ..................................11 3. Hearing New Arguments That Are Not Timely Raised Undermines

The Role Of The Magistrate Judge In The Federal Court System .............12

C. The District Court Improperly Applied The Wells Fargo Test Because There Is No Justification For Fauci To Bypass The Magistrate Judge’s R&R............................................................................................................................... 13

1. The District Court Should Have Rejected Fauci’s New Legal

Argument Under The Wells Fargo Test .....................................................14 2. There Are No Constitutional Implications Or Impacts On The Merits

Of This Case By Not Hearing Fauci’s New Argument ..............................15 3. The District Courts Decision To Hear Fauci’s Argument Not Raised

Before The Magistrate Judge Circumvents The Legislative Intent Of The FMA ....................................................................................................16

II. SPICY PEACH’S WEBSITE IS NOT A PLACE OF ACCOMODATION UNDER

THE ADA, THEREFORE IT DOES NOT VIOLATE THE STATUTE ...........................17

A. Spicy Peach’s Website Does Not Exist In Any Geographic Location And Is Therefore Not A Place Of Public Accomodation ..................................................18

1. Courts Recognize The Plain Language Of The ADA Requires A

Physical Location .......................................................................................18 2. Traditional Statutory Interpretation Doctrines Similarily Support

The Requirement Of A Physical Location ..................................................20

B. Spicy Peach’s Website Is Not A Public Accomodation Under The Nexus Test Because The Relationship Between The Website And Physical Store Is Insufficient .........................................................................................................22

1. Spicy Peach’s Website Transactions Are Entirely Separate From

Transactions Within The Physical Store ....................................................23 2. Any Nexus That May Be Found Is Not Related To The Claim At Issue

....................................................................................................................24

C. Requiring ADA Compliance For All Websites Without Any Physical Location, Results In An Inpermissible Amendment Of The ADA And Disregards The Function Of The Legislature ........................................................25

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1. Broadening The Scope Of The ADA Would Result In A Flood Of

Litigation ....................................................................................................26 2. Without Knowing Which Website Accessibility Standards To

Follow, Businesses Cannot Know How Much Money To Budget For The Costs ....................................................................................................27

3. Undue Financial Burdens Have A More Substantial Impact On

Smaller Businesses Like Spicy Peach ........................................................28 CONCLUSION AND PRAYER ...................................................................................................29

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TABLE OF AUTHORITIES United States Supreme Court Cases: Page(s)

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon., 515 U.S. 687 (1995) ........................................................................................................20

Estate of Cowart v. Nicklos Drilling Co.,

505 U.S. 469 (1992) ........................................................................................................18

McCarthy v. Bronson, 500 U.S. 136 (1991) ........................................................................................................18

Myers v. United States,

272 U.S. 52 (1926) ..........................................................................................................25

PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) ........................................................................................................17

Peretz v. United States,

501 U.S. 923 (1991) ........................................................................................................10

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ........................................................................................................18

United States v. Gonzales,

520 U.S. 1 (1995) ............................................................................................................18

United States v. Raddatz, 519 U.S. 337 (1997) ............................................................................................11, 15, 16

United States Court of Appeals Cases:

Freeman v. County of Bexar,

142 F.3d 848 (5th Cir. 1998) ....................................................................................11, 12 Ford v. Schering-Plough Corp.,

145 F.3d 601 (3d Cir. 1998)............................................................................................20

Haynes v. Dunkin' Donuts LLC, 741 Fed. Appx. 752 (11th Cir. 2018) ..................................................................22, 23, 24

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TABLE OF AUTHORITIES (cont’d)

United States Circuit Court Cases: Page(s) In re Racing Services, Inc.,

779 F.3d 498 (8th Cir. 2015) ..........................................................................................25

Lue Seng Thao v. Ducart, 707 Fed. Appx. 437 (9th Cir. 2017) ..................................................................................7

Magee v. Coca-Cola Refreshments USA, Inc.,

833 F.3d 530 (5th Cir. 2016) ...............................................................................16 19, 26

Marshall v. Chater, 75 F.3d 1421 (10th Cir.1996) .........................................................................................11

Parker v. Metro. Life Ins. Co.,

121 F.3d 1006 (6th Cir. 1997) ........................................................................................21

Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988) ...............................................................................10, 11, 12

Robles v. Domino’s Pizza, LLC,

913 F.3d 898 (9th Cir. 2019) ....................................................................................23, 24

Sierra Club v. Larson, 2 F.3d 462 (1st Cir. 1993) ...............................................................................................18

Stoutenborough v. National Football League Inc.,

59 F.3d 580 (6th Cir. 1995) ............................................................................................20

United States v. George, 971 F.2d 1113 (4th Cir. 1992) ..................................................................................12, 15

Wells Fargo Bank N.A. v. Sinnott,

No.2:07-CV-169, 2010 WL 297830, at *4 (D. Vt. Jan. 19, 2010) ...........................11, 13

Williams v. McNeil, 557 F.3d 1287 (11th Cir. 2009) ................................................................................11, 12

Weyer v. Twentieth Century Fox Film Corp.,

198 F.3d 1104 (9th Cir. 2000) ............................................................................17, 21, 22

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TABLE OF AUTHORITIES (cont’d)

United States District Court Cases: Page(s)

Access Now, Inc., v. Sw. Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002) ...............................................................18, 19, 25

Brownlee v. United States,

3:18-CV-1428, 2018 WL 6597252 (M.D. Pa. July 19, 2018) ........................................25

Toshiba America Information Systems v. New England Technology, ACV 05-00955-CJC, 2007 WL 8089815 (C.D. Cal. Nov. 14, 2007) ..............................8

Gil v. Winn-Dixie Stores, Inc.,

257 F. Supp. 3d 1340 (S.D. Fla. 2017) ...........................................................................27

Gomez v. J. Lindeberg, Inc., No. 16–22966, ECF No. 23 ...........................................................................................23

Nat'l Fed’n of the Blind v. Target Corp.,

452 F. Supp. 2d 946 (N.D. Cal. 2006) ................................................................17, 19, 22

State Supreme Court Cases: Olson v. Workforce Safety & Ins.,

2008 ND 59 .....................................................................................................................25 Statutory Provisions and Rules:

The Americans with Disabilities Act of 1990, Pub. L. No 101-336, 104 Stat. 337 (1990) .............................................................. passim

42 U.S.C. § 12101(b) ................................................................................................17, 18

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

42 U.S.C. § 12182 ...........................................................................................................17

42 U.S.C. §12182(2)(a) ...................................................................................................17

Federal Magistrates Act 28 U.S.C. § 636

Pub. L. No 101-336, 104 Stat. 337 (1990) .............................................................. passim

THE DECLARATION OF INDEPENDENCE (U.S. 1776) .................................................................17

Fed. R. Civ. P. 56 .......................................................................................................................3

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TABLE OF AUTHORITIES (cont’d)

Statutory Provisions and Rules: Page(s)

Fed. R. Civ. P. 72(b) ..............................................................................................................6, 7 Secondary Sources:

Administrative Office of the US Courts,

Manners Disposed of By the US Magistrate Judges for the 10-year Period Ended September 30, 2019, U.S.CTS., https://www.uscourts.gov/sites/default/files/data_tables/jb_s17_0930.2019.pdf (last visited September 17, 2020) .......................................................................................13

Deyan George, How Many Websites Are There in 2020, TECH JURY (Aug. 18, 2020) https://techjury.net/blog/how-many-websites-are-there/ ............................................25

Minh N. Vu, Kristina M. Launey, & Susan Ryan,

Number of Federal Website Accessibility Lawsuits Nearly Triple, Exceeding 2250 in 2018, SEYFARTH SHAW: ADA TITLE III NEWS & INSIGHTS BLOGS (Jan. 31, 2019), https://www.adatitleiii.com/2019/01/number-of-federal-website-accessibility-lawsuits-nearly-triple-exceeding-2250-in-2018/ ..........................................................26

Pew Research Center, Stories From Experts About the Impact of Digital Life, PEW RESEARCH CENTER, July 3, 2018 https://www.pewresearch.org/internet/2018/07/03/stories-from-experts-about-the-impact-of-digital-life/ ...................................................................................................25

R. Schrier and A. Torres, Before Midnight: Deadlines, Dilligence, and the Practice of Law, THE FEDERAL LAWYER, Dec. 2014, at 68 .......................................................................................8, 9

Samuel D. Levy & Martin S. Krezalek, A Call for Regulation: The DOJ Ignored Website Accessibility Regulation and Enterprising Chaos Ensued, (Nov. 9, 2018, 2:35 PM), https://www.law.com/newyorklawjournal/2018/11/09/a-call-for-regulation-the-doj-ignored-website-accessibility-regulation-and-enterprising-chaos-ensued/?slreturn=20200821122734. ............................................................................27

Thomas B. Alleman, Bank Websites Attract ADA Claims: A Survey of the Issues, BLOOMBERG (Jan. 31, 2017), https://www.lexology.com/library/detail ......................27

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QUESTIONS PRESENTED I. Whether the district court abused its discretion by granting de novo review considering

Fauci’s novel legal argument when it was not submitted to or considered by the magistrate

judge.

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

with Disabilities Act in whole or in part, despite statutory language to the contrary.

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STATEMENT OF FACTS

A. Spicy Peach Creates Website Separate And Apart From Its Physical Store.

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

adult videos. R. at 9. Spicy Peach opened its physical video rental store in 2000 but went into

decline alongside other brick and mortar video rental stores following the advent of streaming

technology. Id. In 2015, Spicy Peach made the decision to create a website to operate in addition

to its brick and mortar store. R. at 4. Both forums offer different video content, although there is

occasional overlap. Id. Additionally, information on the website regarding the brick and mortar

store is limited only to the store’s location and contact information. Id. While customers may

purchase gift cards that can be used at the brick and mortar store, all online transactions are entirely

separate from in store transactions. Id. Customers cannot purchase an item online and then pick it

up in store. Id. Similarly, online rentals are only available to download or stream through the

customer’s Web browser or “Smart” TV. Id.

B. Anthony Fauci Purchases Adult Video Online Instead Of In Store.

Anthony Fauci is an individual with a hearing impairment which renders him deaf. R. at 3.

Fauci rented “Home Alone 2: Quarantined Together” from Spicy Peach. R. at 10. Fauci opted to

purchase the video from the website. Id. Regarding his enjoyment of the adult video, Fauci stated

he was unable to follow the plot without closed captioning. Id. Shortly after this rental, Fauci

proceeded to rent three additional adult videos, none of which provided closed captioning. Id.

These three videos were not carried at Spicy Peach’s brick and mortar store, however “Home

Alone 2” was available for purchase within the store. Id.

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C. Fauci Files Suit With The District Court Of Emory.

On April 1, 2019, Fauci filed a claim, pro se, against Spicy Peach. R. at 11. Fauci alleged

that Spicy Peach’s website violated the Americans with Disabilities Act (“ADA”) due to its failure

to provide closed captioning on its videos. Id. Here, Fauci does not contend the brick and mortar

store violates the ADA. R. at 4.

On July 1, 2019, both parties moved for summary judgment, and the court referred the

motion to magistrate judge, the Honorable Andrew Cuomo, for a Recommendation and Review

(“R&R”). R. at 11. Judge Cuomo instructed the parties to file their opposition to the motion by

August 1, 2019. Id. Fauci chose not to oppose Spicy Peach’s motion for summary judgment, and

instead moved for additional time to conduct discovery pursuant to Rule 56(d) of the Federal Rules

of Civil Procedure (“FRCP”). Id. On August 8, 2019, Judge Cuomo denied Fauci’s motion to

extend discovery. Id. Instead he allowed Fauci until September 1, 2019— almost an extra month—

to oppose Spicy Peach’s motion. Id.

D. Fauci Obtains Legal Counsel.

In early August, Fauci retained professional legal counsel. Id. Fauci's legal team reviewed

all discovery and submitted a new motion for summary judgment but failed to include the new

legal argument. Id. On August 29, 2020—two days before the magistrate judge’s deadline—

Fauci’s counsel moved to stay adjudication of the summary judgment motion and sought

reconsideration of the Order denying the extension of discovery. R. at 11,12. Nevertheless, Judge

Cuomo granted both motions. R. at 12. Fauci’s team completed discovery on January 13, 2020. R.

at 12.

On January 27, 2020, Judge Cuomo issued an R&R recommending the district court grant

Spicy Peach’s motion for summary judgment. Id. Judge Cuomo reminded both parties that any

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objection to the R&R should be submitted by February 10, 2020. R. at 12. On February 1, 2020,

Fauci attempted to submit a motion for an extension of time to object to the R&R. Id. Due to an e-

filing error, however, Fauci’s letter seeking the extension of time was not received by the district

court. Id. Fauci and his counsel failed to notice the error, and additionally failed to object following

the lack of response from the district court. Id. On February 10, 2020, the deadline to object to the

magistrate judge lapsed and on February 14, 2020 the district court issued a motion adopting Judge

Cuomo’s R&R. Id.

On February 20, 2020 Fauci filed a motion opposing the district court’s adoption of the

R&R. Id. In this delayed motion, Fauci included the new legal argument that websites are always

required to accommodate disabilities under the ADA. Id. In support of this new filing, Fauci now

attempts to include several hundreds of pages of affidavits and exhibits, including no less than 84

pages dedicated to the new legal argument alone. Id. The district court subsequently vacated its

February 14, 2020 Memorandum and Order to consider Fauci’s objections to the R&R, and Spicy

Peach now appeals. Id.

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SUMMARY OF THE ARGUMENT

I.

Fauci was not was entitled to de novo review under the FMA because he failed to follow

court rules and did not timely object to the magistrate judge’s R&R. The district court improperly

considered Fauci’s new argument because it was not timely filed and there were no special

circumstances justifying leniency. Even if Fauci’s objection is considered timely, the decision to

hear new arguments not seasonably raised before the magistrate judge contradicts the FMA’s

underlying policy of promoting judicial efficiency. The majority of courts reject arguments not

seasonably raised before the magistrate judge because they increase systemic inefficiencies.

Additionally, Fauci had a full and fair opportunity to present all arguments before a magistrate

judge but failed to do so. Finally, the district court erred in its application of the Wells Fargo test

because there are no constitutional implications or impacts on the merits of this case.

II.

Courts recognize the plain language of the ADA requires a physical location. Statutory

interpretation doctrines similarly support the requirement of the physical location. Accordingly,

Spicy Peach’s website is not a place of public accommodation and does not violate the statute.

Spicy Peach’s website is also not a public accommodation under the nexus test because Spicy

Peach’s website transactions are entirely separate from transactions within the physical store. Any

nexus that may be found is not related to Fauci’s claim regarding the captioning on adult videos.

Requiring ADA compliance for all websites without a physical location, results in an

impermissible amendment and disregards the function of the Legislature. Additionally, broadening

the scope of the ADA would fall outside the purview of this Court and result in a flood of litigation.

As such, this Court should refrain from adopting Fauci’s argument and refuse to expand the ADA.

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ARGUMENT

I. THE DISTRICT COURT ABUSED ITS DISCRETION IN GRANTING FAUCI’S MOTION FOR SUMMARY JUDGMENT BY ALLOWING FAUCI TO RAISE A NEW ARGUMENT THAT WAS NOT TIMELY RAISED BEFORE THE MAGISTRATE JUDGE. Under the Federal Magistrates Act (“FMA”), a United States district judge may refer

dispositive pretrial motions and petitions for writ of habeas corpus to a magistrate judge. 28

U.S.C. § 636. Through their statutory power, the magistrate judge then conducts the appropriate

proceedings and recommends dispositions. Id. The act also provides that “any party may serve

and file written objections to such proposed findings and recommendations as provided by rules

of court.” Id. If a party files written objections in accordance with court rules, “[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 an objection is made.” Id.

A. Fauci Was Not Entitled To De Novo Review Under The FMA Because He Failed To Follow Court Rules By Not Timely Objecting To The R&R.

Under Rule 72(b) of the FRCP, a party “may serve and file specific written objections to

the proposed findings and recommendations” of a magistrate judge in case-dispositive matters.

Fed. R. Civ. P. 72(b). The procedural requirements of the FMA mandate that parties properly raise

an objection before the district court in order to obtain de novo review. 28 U.S.C. § 636.

1. The District Court Improperly Considered Fauci’s Objection Because It Was Not Timely Filed.

The district court overlooked the FMA’s procedural requirements by considering Fauci’s

objections to the R&R. R. at 12. Despite the statutory requirement, the district court sua sponte

took it upon itself to spend time on hundreds of pages of evidence rehashing the magistrate judges’

findings. Id.

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Here, Fauci’s objection was not timely filed and thus, he was not entitled to de novo review

by the district court. R at 15. In this case, the magistrate judge issued an R&R on January 27, 2020

in favor of Spicy Peach and set a deadline of February 10, 2020 to file objections pursuant to FRCP

72(b). R. at 12. On February 1, 2020, Fauci’s counsel submitted a letter to the district court seeking

an extension of time for making objections to the R&R. Id. However, due to an e-filing error, the

extension letter was not entered in the system until February 11, 2020—after the deadline for

objections had expired. Id. Here, Fauci not only incorrectly assumed the letter had been

acknowledged, but also incorrectly assumed the district court was simply late in responding to a

routine extension. Id. Consequently, the deadline to object lapsed and Fauci waived his right to de

novo review.

2. The District Court Abused Its Discretion Because There Were No Special Or Extraordinary Circumstances.

An e-filing error does not constitute a special or extraordinary circumstance because “a

garden variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to

miss a filing deadline” does not warrant an extension. Lue Seng Thao v. Ducart, 707 Fed. Appx.

437 (9th Cir. 2017). In granting the extension, the district court incorrectly weighed the fact Fauci

had originally represented himself pro se before obtaining legal counsel. In early August 2019,

Fauci retained competent legal counsel and had ample opportunity to raise the new argument in

the motion submitted on September 1, 2019. R. at 12. However, Fauci’s counsel failed to do so.

Id.

Here, there were no special or extraordinary circumstances justifying such leniency in

regard to Fauci’s missed deadline. The fact remains Fauci’s legal counsel had weeks to prepare

any new argument. R. at 12. In this instance, there was more than a fair opportunity to research

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and raise new arguments—but Fauci’s counsel failed to do so. Holding parties accountable to

deadlines is the cornerstone of an effective and efficient Judiciary.

Here, Fauci retained legal representation in early August 2019 and was well equipped with

competent counsel to raise the new argument in the motion for summary judgment or any time

before the deadline expired. R. at 12. This stands true even when considering the e-filing error.

3. The Court Is Not Responsible For Fauci’s Missed Deadlines.

Among the many procedural requirements that come into play in federal litigation,

deadlines play a paramount role in effective judicial administration. While not all deadlines are

created equal, all deadlines warrant equal respect.1 To the contrary, missed deadlines and lack of

awareness about filed documents can lead to myriad consequences, detrimental results, and

unhappy clients. Because of that, courts have little tolerance for missed deadlines and errors

overlooked by counsel.

In Toshiba America Information Systems v. New England Technology, the court was

entirely unsympathetic towards Toshiba’s counsel when they missed a crucial deadline. ACV 05-

00955-CJC, 2007 WL 8089815 (C.D. Cal. Nov. 14, 2007). There, the court entered judgment in

favor of plaintiff Toshiba for approximately $480,000, plus fees and costs, to be resolved by

motion. Id. at 1. Toshiba’s counsel then moved for attorneys’ fees in the amount of $996,865.83,

but the million-dollar motion was filed one day after it was due. Id. On the motion’s due date,

although plaintiff’s counsel knew the courthouse closed at 4 p.m., counsel gave the motion to a

courier service at 3:14 p.m. Id. at 2. The courier was caught in heavy rush-hour traffic on the way

to the courthouse and once finally there, the office was closed. Id. The court ultimately held traffic

1 R. Schrier and A. Torres, Before Midnight: Deadlines, Diligince, and the Practice of Law, Dec. 2014, The Federal Lawyer, 68 (discussing the importance deadlines in the legal profession).

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delays did not provide sufficient reason for the missed deadline, and reiterated the high expectation

of meeting procedural deadlines. Id.

Here, although it was the court’s own clerical failure that caused the motion to go

unnoticed, Fauci’s counsel had ample opportunity to raise the new argument any time before the

magistrate judges’ R&R was issued. Additionally, Fauci’s counsel had adequate time (ten days) to

recognize that an error occurred and that the deadline had passed. R at 12.2

Finally, far after the lapsed deadline on February 20, 2020, Fauci raised his new argument

in a motion opposing the district court’s adoption of the magistrate judge’s R&R. Id. There, Fauci

attacked the R&R on new legal grounds. Id. His new argument (that could have been raised at any

point prior) is that websites are always required to accommodate disabilities under the ADA. Id.

In support of his new argument, Fauci also submitted a profuse set of affidavits that contained

hundreds of pages of exhibits and various legal documents which should have first been considered

by the magistrate judge. Id.

Ultimately, the burden here rests with Fauci and his counsel to ensure that any filings have

been received by the court—they simply failed to do so. Fauci’s counsel should not have assumed

the court would grant his extension when it was filed. Had Fauci’s counsel acted with diligence,

we would not be here today. Fauci thus did not make a proper objection required to trigger de

novo review because he missed the deadline. By falling short of the mark, Fauci should not be

allowed to raise new trivial arguments and evidence.

In sum, the court not only has a long-standing tradition of valuing punctuality, but also

abiding by the proper amount of discretion. Here, there were no extraordinary circumstances, and

it was the sole responsibility of Fauci’s counsel to check the status of their motion and they failed

2 “But you cannot win Wimbledon if you show up a day after Rafael Nadal gets the trophy.” R. Schrier and A. Torres, Before Midnight: Deadlines, Diligince, and the Practice of Law, Dec. 2014, The Federal Lawyer, 70.

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to do so. Additionally, the district court abused its discretion in considering Fauci’s new argument

that was not considered by the magistrate judge, going against the grain of judicial efficiency. For

this reason, Spicy Peach urges this Court not to consider Fauci’s new argument.

B. Even If Fauci’s Objection Is Considered Timely, The Decision To Hear New Arguments Not Seasonably Raised Before The Magistrate Judge Contradicts The FMA’s Underlying Policy Objective Of Promoting Judicial Efficiency.

Even when a proper objection is made, the court need not hear new arguments if they are

not seasonably raised. Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840

F.2d 985 (1st Cir. 1988). A party has an obligation to put its best foot forward before the magistrate

judge and to spell out its arguments squarely and distinctly. Id. at 990. “One should not be allowed

to defeat the system by seeding the record with mysterious references to unpled claims, hoping to

set the stage for an ambush should the ensuing ruling fail to suit.” Id.

1. The Majority Of Courts Reject Arguments That Are Not Seasonably Raised Before The Magistrate Judge Because They Increase Systemic Inefficiencies.

The Legislatures’ intent in passing the FMA was for magistrate judges to improve the

“efficient administration of the courts’ dockets, thus relieving the courts of certain subordinate

duties that often distract them from more important matters.” Peretz v. United States, 501 U.S. 923

(1991). The First Circuit in Paterson-Leitch Co. Inc., stated a magistrate judge’s R&R is designed

to help district courts analyze and decide legal issues without having to fully preside over the

matter themselves. Id. at 991. These Article I judges exist “to assume some of the burden imposed

[on the district courts] by a burgeoning caseload.” Id. The First Circuit also provides that

“[s]ystemic efficiencies would be frustrated and the Magistrate’s role reduced to that of a mere

dress rehearser if a party were allowed to feint and weave at the initial hearing and save its

knockout punch for the second round.” Id.

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The majority of circuits join in the practice of not allowing an argument unless seasonably

raised before a magistrate during de novo review. See Paterson-Leitch Co. v. Mass. Mun.

Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988); Wells Fargo Bank N.A. v. Sinnott, No.2:07-

CV-169, 2010 WL 297830, at *4 (D. Vt. Jan. 19, 2010); Freeman v. County of Bexar, 142 F.3d

848 (5th Cir. 1998); Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996); Williams v. McNeil,

557 F.3d 1287, 1291 (11th Cir. 2009). Circuits adopt this approach, in part, because it honors the

role of the magistrate judge and the Legislative intent of the FMA.

Similarly, the Eleventh Circuit adopts an approach that preserves judicial efficiencies

afforded by the FMA. Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir.2009) See also U.S. v.

Raddatz, 447 U.S. at 675). In Williams, the Eleventh Circuit determined the district court had

discretion not to consider a petitioner’s arguments regarding his federal habeas petition when the

petitioner raised the arguments for the first time in his objections to a magistrate judge’s R&R. Id.

at 1288. The court ultimately deemed the argument waived because it was not seasonably raised

before the magistrate. Id. at 1292.

2. Fauci Had A Full And Fair Opportunity To Present All Arguments Before The Magistrate Judge, But Failed To Do So.

Fauci should not have assumed his extension would be granted when he had a full and fair

opportunity to raise his new argument before the magistrate judge. On this issue the Fifth Circuit

has concluded the court need not hear new arguments in its de novo review of objections to a

magistrate judge’s recommendation. See Freeman v. County of Bexar, 142 F.3d 848 (5th Cir.

1998). The Fifth Circuit emphasized the district court’s obligation to review de novo the actual

evidence on objected-to findings, but held the district court should not be compelled to ignore that

the parties had a full and fair opportunity to present their best evidence to the magistrate judge. Id.

at 852.

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Here, Fauci had a full and fair opportunity to present his best argument and evidence to the

magistrate judge but failed to do so. Despite ample time, Fauci did not put his argument forward

and only raised it in the motion opposing the magistrate judge’s R&R. R. at 12. This argument was

raised weeks after the deadline passed, and months after obtaining legal counsel. Id. In comparison

to Freeman, the present case involves an argument that was overlooked until the filing of

objections to the magistrate’s R&R. As the court reasoned in Paterson-Leitch Co., “it would be

fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait to see

which way the wind was blowing, and—having received an unfavorable recommendation—shift

gears before the district judge.” Paterson-Leitch Co., Inc. at 991. Fauci should not be permitted to

bypass the magistrate judge by raising a new argument that he had a full and fair opportunity to

present.

3. Hearing New Arguments That Are Not Timely Raised Undermines The Role Of The Magistrate Judge In The Federal Court System.

The Fourth Circuit in United States v. George stands alone in holding that the district court

must consider all arguments regardless if they were raised before the magistrate judge when a

proper objection is made. George, 971 F.2d 1113, 1118. The majority of circuits have rejected this

idea finding that requiring the district court to consider new arguments raised in the objections

would unfairly benefit certain litigants and effectively eliminate the efficiencies gained through

the FMA. See generally Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985

(1st Cir. 1988); Williams v. McNeil, 557 F.3d 1287 (11th Cir. 2009); Freeman v. County of Bexar,

142 F.3d 848 (5th Cir. 1998).

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Data provided by the U.S. Courts illustrates the role and impact the magistrate judge has

on judicial efficiency in the federal court system.3 Magistrate judges are essential in assisting the

district court with their already overburdened docket by filtering and focusing the cases or issues

before it. However, efficiencies are only gained when the district court properly applies discretion

in reviewing the magistrate judge’s R&R.

Here, the District Court of Emory bases its decision on a rule created and accepted solely

by the Fourth Circuit. Despite the overwhelming consensus among the majority of circuits holding

that arguments not seasonably raised are waived, the district court awarded Fauci a blank slate.

This court need not make a per se rule that either prohibits or requires a district court to consider

an argument not raised before the magistrate judge. Rather, the Thirteenth Circuit is best served

by following the majority of circuits in properly using its discretion to forgo arguments not timely

raised without good cause.

C. The District Court Improperly Applied The Wells Fargo Test Because There Is No Justification For Fauci To Bypass The Magistrate Judge’s R&R.

The Second Circuit applies a balancing test to determine whether discretion should be

exercised to hear a novel legal argument. Wells Fargo Bank N.A. v. Sinnott, 2:07-CV-169, 2010

WL 297830 (D. Vt. Jan. 19, 2010). The Wells Fargo test requires the court examine six 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

3 In 2019 alone Magistrate Judges disposed of 226,808 non-dispositive motions; issued R&Rs in 4,410 Social Security appeals, 25,414 in prisoner litigation, and 16,200 on other dispositive motions; held 19,290 settlement conferences and 54,192 pretrial conferences; oversaw 1,065 evidentiary hearings and 9,864 motions hearings; and fully presided over 17,817 civil cases, including 186 jury trials and 98 nonjury trials. Admin Office of the U.S. Courts, Matters Disposed of by U.S. Magistrate Judges For the 10 - Year Period Ended September 30, 2019, U.S. CTS., https://www.uscourts.gov/sites/default/files/data_tables/jb_s17_0930.2019.pdf (last visited September 17, 2020).

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issue of law for which no additional fact-finding is required; 4) whether the resolution 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. Id. at 4; See also R. at 17, 18. Through correct application of the Wells

Fargo test, the district court should have rejected Fauci’s novel argument.

1. The District Court Should Have Rejected Fauci’s New Legal Argument Under The Wells Fargo Test.

Here, in balancing the Wells Fargo factors, the scale tilts in favor of Spicy Peach. On the

first factor, there was no legitimate reason for Fauci’s failure to raise his new argument before the

magistrate judge. The district court’s decision to grant de novo review and hear Fauci’s new

argument was improperly based on the e-filing error. R. at 18. The incidental e-filing error drew

attention away from the fact that Fauci’s new argument should have been brought up any time

before the filing deadline but was not. Next, the second factor shows there is no intervening case

or statute that suggests websites are always required to accommodate disabilities under the ADA.

For the third factor, the case at bar is an issue of pure law as which requires no additional fact

finding because at issue is the improper granting of a motion for summary judgment.

On the fourth factor, the resolution of the new legal issue is not open to serious question

because no courts hold that websites are always required to comply by the ADA and the statute

itself has not been amended by the Legislature. Next, the fifth factor shows both efficiency and

fairness militate against the consideration of a new argument because Fauci filed several hundred

pages of unnecessary material rehashing the legal arguments raised before the magistrate and a

second set of affidavits that contained no less than eighty-four pages of exhibits and various legal

documents in support of his new legal argument. In sum, it would be fundamentally unfair to allow

Fauci to bypass the magistrate judge and wait to present the new argument before the district court.

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Finally, the sixth factor illustrates rejecting Fauci’s new argument will not result in a manifest

injustice because he had adequate opportunity to raise it before the magistrate judge and the new

legal grounds have not been accepted by the Legislature or the courts. When analyzed

independently and collectively, the Wells Fargo factors weigh in favor of Spicy Peach. Thus, the

district court improperly applied the Wells Fargo test in its decision to hear Fauci’s new argument.

2. There Are No Constitutional Implications Or Impacts On The Merits Of This Case By Not Hearing Fauci’s New Argument.

In addition to incorrectly applying the Wells Fargo test, the district court improperly

reasons that refusal to hear the new argument is constitutionally suspect in light of the text of the

FMA and the procedural protections afforded to litigants by the Constitution. R. at 13. The district

court’s characterization of procedural protections is incorrect because there are no constitutional

due process implications in the present case. See U.S. v. Raddatz, 447 U.S. 667, 680 (1980)

(holding due process rights are adequately protected by § 636(b)(1)).

Here, Fauci did not object to the magistrate judge’s R&R on the basis that he was being

denied due process. Furthermore, Fauci is an individual partaking in a private civil suit, which

does not illicit the same scrutiny as in a criminal case with a state actor. See United States v.

George, 971 F.2d 1113, 1118 (4th Cir. 1992). Under the FMA, due process rights are adequately

protected by the fact a that district court judge acts as the ultimate decision maker. See Raddatz,

447 U.S. at 684. Here, there are no Article III implications because the district court makes the

final call on the case. Id. If this Court were to forgo hearing Fauci’s novel argument, this Court’s

decision would in no way be repugnant to either the Constitution or the FMA.

The district court reasoned that refusing to hear the new argument is likely to mislead the

court when deciding the second issue of today’s case by presenting only a partial analysis of the

burgeoning legal landscape. R at 15. This reasoning is also flawed because courts have noted that

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websites are not always considered a public accommodation. See e.g., Magee v. Coca-Cola

Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016). Fauci’s broad contention that all websites

are a public accommodation has not been accepted by the Legislature or the courts. For these

reasons, there would be no manifest injustice by not hearing Fauci’s new argument because the

argument is without merit. Fauci’s new argument that websites are always subject to the ADA is

not a question for this Court to decide in the present case but rather an issue better suited for the

Legislature.

3. The District Court’s Decision To Hear Fauci’s Argument Not Raised Before the Magistrate Judge Circumvents the Legislative Intent of the FMA.

This court need only look to the majority of circuits to conclude that hearing new arguments

not seasonably raised before the magistrate judge would impose an intolerable burden on the

district courts and frustrate the congressional intent of the FMA. As Chief Justice Burger illustrated

in Raddatz, a magistrate judges’s purpose is to help the district court in its overburdened caseload

and to focus the scope of the issues. Raddatz, 447 U.S. at 681.

Here, if the district’s standard is adopted, all cases in the Thirteenth Circuit will be subject

to entirely new evidence and arguments in front of the district court despite the magistrate judge’s

R&R. Such a precedent would essentially render the magistrate judge’s findings and

recommendations pointless. As a result, the role of the magistrate judge is bypassed and an

impermissible precedent for procedure in the federal courts is established.

Accordingly, this Court should reverse the district court’s judgment because the court

abused its discretion in two ways. First, in granting judgment by reviewing the magistrate judges

R&R de novo. R. at 21. And second, in allowing Fauci to raise his new argument after he failed to

timely raise it before the magistrate judge. R. at 23.

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II. SPICY PEACH’S WEBSITE IS NOT A PLACE OF ACCOMODATION UNDER THE ADA, THEREFORE IT DOES NOT VIOLATE THE STATUTE. In 1990 Congress passed, and the President signed into law, the Americans With

Disabilities Act (the “ADA”) with the intent of preventing discrimination against individuals with

disabilities. 42 U.S.C. § 12101(b); See also PGA Tour, Inc. v. Martin, 532 U.S. 661, 674

(2001). The ADA protects disabled individuals from discrimination in various aspects of both

public and private life, in furtherance of the goal that everyone is treated equally under the

law. Id.; THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). To ensure disabled individuals

have full and equal enjoyment of the goods and services of places of public accommodation, the

ADA requires “reasonable modification” of policies, practices, and procedures. Nat'l Fed'n of the

Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006). The ADA is divided into five sections

or titles. 42 U.S.C. § 12101. At issue here is Title III, dealing with Public Accommodations and

Services Operated by Private Entities. Id.

Title III of the ADA regulates discrimination on the basis of disability in public

accomodations and commercial facilities. Id. § 12182(2)(a). Under the statute, a “place of public

accommodation” is defined to encompass twelve different categories of establishments that are

considered private entities affecting commerce. Id. § 12101(b). If after examination, a private entity

is considered a public accommodation as a result of its effect on commerce, the business is required

to abide by the accessibility standards of the statute. Id. § 12182. When a plaintiff alleges a violation

based on unequal access to a service of a place of public accommodation, courts have required an

established “nexus” between the challenged service and the place of public accommodation. See

Nat'l Fed'n of the Blind, 452 F. Supp. 2d at 951; Weyer v. Twentieth Century Fox Film Corp., 198

F.3d 1104 (9th Cir. 2000). Here, Spicy Peach urges this Court to find its website is not a place

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of public accommodation under the nexus test because there is not a direct relationship between

the online transactions and the in store transactions.

A. Spicy Peach’s Website Does Not Exist In Any Geographic Location And Is Therefore Not A Place Of Public Accommodation.

In order to find that internet sites must be made accessible to individuals with disabilities

under the ADA, this Court must first establish the internet is a place of public accommodation

under Title III. Id. § 12101(b). To determine whether a business falls within the scope of Title III

of the ADA, this Court need only look as far as the plain language of the statute itself. See Sierra

Club v. Larson, 2 F.3d 462, 467 (1993); United States v. Gonzales, 520 U.S. 1, 132 (1997). The

text of the ADA, however, does not support such a conclusion. Moreover, “the plainness or

ambiguity of statutory language is determined by reference to the language itself, the specific

context in which that language is used, and the broader context of the statute as a whole.” Robinson

v. Shell Oil Co., 519 U.S. 337 (1997) (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

469, 477 (1992), and McCarthy v. Bronson, 500 U.S. 136, 139 (1991)). When the plain language

is overly vague, the interpretative canons of noscitur a sociis and ejusdem generis dictate “places

of public accommodation” refer exclusively to physical facilities and resolve any possible statutory

ambiguities. See Access Now, Inc. v. Sw. Airlines, Co., 227 F. Supp. 2d 1312, 1321 (S.D. Fla.

2002). As such, any contrary agency interpretations should be foreclosed.4

1. Courts Recognize The Plain Language Of The ADA Requires A Physical Location.

In defining a “place of public accommodation” the Legislature specified only certain

entities listed within the statute could be considered a public accommodation.5 Significantly,

4 See R. at 23 (the district court relied on a letter by letter from Stephen E. Boyd, Assistant Attorney General of the DOJ, to support its conclusion that the ADA applies public accommodations to websites). 5 42 U.S.C. § 12181(7) sets forth the following list of private entities are considered public accommodations for purposes of Title III: (A) an inn, hotel, motel, or other place of lodging ...;(B) a restaurant, bar, or other

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every express example listed by Congress includes only physical locations. See id. Therefore,

absent such a physical “place,” Title III ADA regulations may not be implicated.

Accordingly, courts have repeatedly held complaints about business transactions

unconnected with a physical place of public accommodation do not state a claim under Title

III. Nat'l Fed'n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006). In Access Now,

Inc v. Sw. Airlines, Co., the court reiterated that public accommodations only apply to physical,

concrete structures. 227 F. Supp. 2d 1312 (S.D. Fla. 2002). There, a blind individual and an

advocacy organization sued Southwest Airlines, alleging the airline’s website discriminated against

blind persons. Id. at 1314. In its holding, the court mentioned that to fall within the scope of the

ADA on its face, a public accommodation must be a physical and concrete structure. Id. at 1318.

The court explained because the website of Southwest Airlines “did not exist in any particular

geographic location,” plaintiffs were unable to establish the website impeded their access to a

specific, physical, concrete space. Id.; See also Magee v. Coca-Cola Refreshments USA, Inc., 833

F.3d 530 (5th Cir. 2016) (holding Coca–Cola's vending machines were not “sales establishments”

under the plain meaning of that term and therefore were not “places of public accommodation” under

Title III of the ADA).

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; (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

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Similarly, in Stoutenborough v. National Football League Inc., an association of blind

individuals with hearing impairments brought action against the National Football League (“NFL”)

alleging the NFL’s broadcasting of only sold out games violated the ADA. 59 F.3d 580 (6th Cir.

1995). There, the court held Defendants did not fall within the category of “public accommodation”

because a televised NFL game is not a physical space. Id. at 583. In so holding, the court noted

although the game was played in a “place of public accommodation” and might be viewed on a TV

in another “place of public accommodation,” the game itself was not a physical location. Id. at 583.

Moreover, in Ford v. Schering-Plough Corp., the Third Circuit stated the purpose of the

ADA’s public accommodations is to ensure accessibility to patrons, not to alter the nature of public

goods provided by the accommodations. 145 F.3d 601, 613 (3d Cir. 1998). Therefore, “a video store

must make its facilities and rental operations accessible, but it is not required to stock closed-

captioned video tapes.” Id. Likewise, Spicy Peach’s brick and mortar store must be physically

accessible to individuals with disabilities but need not provide adult videos with closed captioning.

As such, it is clear the plain language of the statute demonstrates Spicy Peach and its website are in

accordance with the law.

2. Traditional Statutory Interpretation Doctrines Similarly Support The Requirement Of A Physical Location.

Even if this Court finds the specific language regarding public accommodation vague, the

doctrine of noscitur a sociis instructs that “a… term is interpreted within the context of the

accompanying words to avoid the giving of unintended breadth to the Acts of Congress.”

See Stoutenborough v. National Football League Inc., 59 F.3d 580 (6th Cir. 1995). In short, “a

word is best known by the company it keeps.” Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995). Accordingly, courts should ascertain the meaning of

questionable words or phrases in a statute by reference to the meaning of other words or phrases

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associated with it. See id. When looking at the language of the ADA, it is clear the Legislature

did not intend for the scope to reach non-physical locations.

Applying noscitur a sociis, the Sixth Circuit in Parker v. Metro. Life Ins. Co., reiterated

“every term listed in § 12181(7) and subsection (F) is a physical place open to public access.”

Parker, 121 F.3d 1006, 1008 (6th Cir. 1997). The court noted the terms used in the section:

auditorium, movie theater, museum, park, nursery, food bank, and gymnasium, all referred to

places with “resources utilized by physical access.” Id.; see also § 12181; Weyer, 198 F.3d at 1114

(Stating “[t]he principle of noscitur a sociis requires that a term, ‘place of public accommodation,’

be interpreted within the context of the accompanying words.”). As such, the Sixth Circuit

concluded the ADA only covered similar physical places of public accommodation. Id.

Here, the district court relies on the doctrine of ejusdem generis to determine Spicy Peach’s

website falls within the category of “other service establishments” listed in the in the statute,

however, the district court misapplies the rule. See R. at 22. Ejusdem generis states “where general

words follow a specific enumeration of persons or things, the general words should be limited to

persons or things similar to those specifically enumerated.” Circuit City Stores Inc., v. Adams, 532

U.S. 105 (2001). Despite the “other service establishments” catchall for many of the §

12181(7) categories, the specific numeration of the words surrounding these catchalls further

illustrate that public accommodations need only be provided by physical spaces.6 Indeed, every

catchall provision is proceeded exclusively by examples of brick and mortar sales establishments

and places of entertainment. See Parker, 121 F.3d at 1014. Because the specific enumerations are

physical locations, the general words within the catchall must also be limited to physical locations.

6 42 U.S.C. § 12181(7), supra note 2 at 18,19.

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Id. Ejusdem generis thus denies accommodation requirements for intangible places, contrary to

what the district court holds.

While Spicy Peach concedes its brick and mortar video store is a public accommodation as

expressly set forth in § 1281(7), Spicy Peach’s website does not exist in any physical, geographic

location. Additionally, Fauci does not challenge the services and accommodations of Spicy

Peach’s physical location. R. at 4. Here, there is nothing prohibiting Fauci from enjoying the goods

provided within the space of the physical store. Moreover, though Fauci may contend there is a

direct connection between Spicy Peach’s website and its physical location, this claim fails.

B. Spicy Peach’s Website Is Not A Public Accommodation Under The Nexus Test Because The Relationship Between The Website And Physical Store Is Insufficient.

Spicy Peach’s website fails the nexus test and therefore cannot be considered a place of

public accommodation under the ADA. The nexus test establishes only a website with a sufficient

nexus to a physical place may be considered a place of public accommodation. Id. at 952; Id. at

1114; Haynes v. Dunkin' Donuts LLC, 741 Fed. Appx. 752 (11th Cir. 2018). The primary inquiry

under the nexus test is whether inaccessibility of the website impedes the full and equal enjoyment

of goods and services offered in the physical space. Id. at 956. If a court determines a sufficient

nexus is present, only information and services connected to that nexus are subject to the ADA

accessibility standards. Id. When information and services are unconnected to the physical place,

those websites are not subject to ADA standards. Id. The circuits that have adopted the nexus test

(the Sixth, Ninth, and Eleventh Circuits), look to the direct nexus between the website and physical

space. Nat'l Fed'n of the Blind, 452 F. Supp. 2d at 951; Weyer,198 F.3d 1104 (9th Cir. 2000); Haynes,

741 Fed. Appx. 752.

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1. Spicy Peach’s Website Transactions Are Entirely Separate From Transactions Within The Physical Store.

Spicy Peach’s website is not required to meet the contours of the ADA because there is no

direct link between online transactions and transactions within the physical store. Courts have

found websites to be a place of public accommodation when a website is heavily integrated with

a physical store location and operates as a gateway to the physical stores. Id. 452 F. Supp. 2d at

951; See also Gomez v. J. Lindeberg, Inc., No. 16–22966, ECF No. 23, at *3 (S.D. Fla. Oct. 17,

2016). In the case at bar, Spicy Peach’s website cannot be considered a gateway to the physical

store because there is no immediate and direct relationship between the website and services

provided by the physical store.

In Robles v. Domino’s Pizza, LLC, the court correctly decided the pizzeria’s website and

mobile application were places of public accommodation under the ADA. 913 F.3d 898 (9th Cir.

2019). In that case, a blind customer sued the pizzeria alleging the website and app used for ordering

pizza were not fully accessible to him, creating a violation of the ADA. Id. There, customers used

the website and app to locate nearby Domino’s restaurants, allowing customers to order pizzas

directly from their home for delivery or instore pick up. Id. at 905. The court held a sufficient nexus

existed because the website and app were used directly to place orders to be picked up in store,

delivered to the customer, or delivered to customer’s home. Id. at 906.

Similarly, in Haynes v. Dunkin’ Donuts LLC, a blind customer brought action against website

operators of the nationally recognized chain, Dunkin’ Donuts. 741 Fed. Appx. at 753. Plaintiff

contended the corporation did not maintain a website compatible with screen reading software, and

thus was in violation of Title III of the ADA. Id. In that case the court noted Dunkin’s website

contained information that provided access to and information about the goods, services, facilities,

privileges, advantages and accommodations of Dunkin’s physical stores. Id. at 754. The court held

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Dunkin’s website could be considered a place of public accommodation because it directly

facilitated in store transactions. Id.

Here, in contrast to Robles and Haynes, there is no direct link between the online

transactions and transactions within the physical store. All transactions taking place on Spicy

Peach’s website are entirely separate from in store transactions. R. at 4. Unlike the customers in

Robles and Haynes, Spicy Peach customers have no option to purchase a video off the website and

pick up in store at a later time. Id. Additionally, an inference can be made from the record that

there is no option to purchase an online video from the physical store and have it delivered directly

to the customer’s home or inbox. Id.

2. Any Nexus That May Be Found Is Not Related To The Claim At Issue.

Although Fauci contends “similarity” of content both in store and on the website creates a

sufficient nexus, this contention alone is not enough to enforce the high standards of the ADA. R. at

6. The nexus must be related to the actual issue complained of. R. at 7. Robles and Haynes show

clearly for a sufficient nexus to exist and a website to be a place of public accommodation, the

transactions and capabilities of the website must be directly related to the in store transactions and

capabilities. Id. at 905; Id. at 753. Here, there is a relationship between the website and physical

store of Spicy Peach through the location information provided and the ability to purchase gift cards

online for in store use. However, this relationship alone is not enough to constitute a nexus in this

case. Fauci’s complaint here is in relation to the video content, not the ability to purchase gift cards

or find location information. R. at 4.

In sum, there is not a sufficient nexus in the present case. Spicy Peach’s website does not

facilitate in store transactions, nor are the tenuous connections present sufficient to impose ADA

regulations. It is for these reasons Spicy Peach urges this court to adopt the magistrate’s decision.

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C. Requiring ADA Compliance For All Websites Without Any Physical Location, Results In An Impermissible Amendment Of The ADA And Disregards The Function Of The Legislature.

The bedrock of our great Nation is the idea of separation of powers. This doctrine serves the

purpose of promoting the governmental goal of checks and balances. See generally Myers v.

United States, 272 U.S. 52 (1926) (Brandeis, J., dissenting). Through the separate powers, the

Legislature is responsible for enacting laws, the Judiciary applies the laws, and the Executive

implements the laws. Additionally, it is the duty of the Legislature, not the Judiciary, to amend

and modernize legislation as it becomes necessary. See Olson v. Workforce Safety & Ins., 2008

ND 59; Brownlee v. United States, 3:18-CV-1428, 2018 WL 6597252 (M.D. Pa. July 19, 2018);

In re Racing Services, Inc., 779 F.3d 498 (8th Cir. 2015).

Today there are almost two billion websites on the internet and they have become an integral

part of our daily lives. Deyan George, How Many Websites Are There in 2020, Tech Jury (Sep.

21, 2020), https://techjury.net/blog/how-many-websites-are-there/. Digital technology allows for

more flexibility of schedules, increased access to current events, effortless communication with

businesses across the globe, the ability to look up anything at any given moment, and more.7

Conversely, the skill and expertise required in order to enable the enjoyment of websites should

not be downplayed. “[Because] of the rapidly developing technology at issue, and the lack of well-

defined standards for bringing a virtually infinite number of Internet websites into compliance with

the ADA, a precondition for taking the ADA into ‘virtual’ space is a meaningful input from all

interested parties via the legislative process.” Access Now, Inc., 227 F. Supp., 2d 1312, 1321–22

n.13. For that reason, the intricacies surrounding websites are far more than this Court is intended

7 Pew Research Center, June, 2018, “Stories From Experts About the Impact of Digital Life” https://www.pewresearch.org/internet/2018/07/03/stories-from-experts-about-the-impact-of-digital-life/

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to handle without further guidance from the Legislature. As such, any attempt to expand the reach

of the ADA to apply to all websites, regardless of physical location or nexus, would result in

detrimental impacts to small businesses.

1. Broadening The Scope Of The ADA Would Result In A Flood Of Litigation.

If the Legislature intended for the internet to be included in the scope of the ADA they would

have amended the statute in 2008 to include such language. The opportunity was present, time was

perfect, and a bright line rule could have been established. Despite the Legislature’s continued

silence, this Court is unable to make the proper determination of what technological standards should

be applied to websites in all of their varying duties. For this reason, any decision to expand the scope

of the ADA would result in an overwhelming amount of litigation.

Currently, uncertainty surrounding the appropriate ADA compliance technology for websites

(with a sufficient nexus) has already resulted in a significant amount of litigation. The number of

website accessibility lawsuits reached at least 2,258 in 2018—leading to a 177% increase from 814

suits of the kind in 2017. Minh N. Vu, Kristina M. Launey, & Susan Ryan, Number of Federal

Website Accessibility Lawsuits Nearly Triple, Exceeding 2250 in 2018, ADA TITLE III NEWS &

INSIGHTS (Jan. 31, 2019).

If the precedent by this Court today is that all websites are subject to the ADA even if both

a nexus and physical location are lacking, the floodgates of litigation will be blown open. Through

this suit, Fauci is attempting to expand the term “place of public accommodation” well beyond its

statutory definition. Magee, 833 F.3d at 533. A decision by this Court to permit any website that

offers any service to be in constant danger of having a suit filed against them, would be detrimental

to small businesses and the Judiciary.

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2. Without Knowing Which Website Accessibility Standards to Follow, Businesses Cannot Know How Much Money to Budget for the Costs.

All businesses required to follow the regulations of the ADA face the challenge of

overcoming substantial financial burdens in coding their websites appropriately. An analysis from

2011 found that making airline travel websites ADA compliant ranged from $31,200 (for the smaller

sites) all the way to $225,000 (for the larger sites). Thomas B. Alleman, Bank Websites Attract ADA

Claims: A Survey of the Issues, BLOOMBERG (Nov. 30, 2016).

In the 2017 case of Gil v. Winn-Dixie Stores, Inc., the court touched on potential costs

required by a company to update their website. 257 F. Supp. 3d 1340 (S.D. Fla. 2017). There, a

visually impaired grocery store patron brought action against the owner of grocery store chain,

alleging the website was inaccessible to visually impaired consumers. Id. In Winn-Dixie, an expert

on website accessibility testified before the court that just the initial audit of the store’s website

would take three weeks and cost between $9,000 and $11,000. Id. at 1346-47. Then, fixing the

identified problems would cost between $16,000 and $20,000. Id. This would be followed again by

a smaller version of the audit at a cost between $4,000 to $6,000. Id. Meaning the grocery store could

fix all the issues for roughly $37,000. Id. But this was simply a ballpark estimate which could change

based upon the results of the full audit. Id. The store there set aside $250,000 for the repair, not

knowing exactly how much was going to be needed. Id.

This case highlights the significant financial costs associated with updating websites. Id.

Maintenance does not end once the website has an initial update in coding. Every time a new photo,

new link, or new page is added—additional coding is required. See Samuel D. Levy & Martin S.

Krezalek, A Call for Regulation: The DOJ Ignored Website Accessibility Regulation and

Enterprising Chaos Ensuedm, N.Y.L.J. Presently, many businesses are forced to hire “digital

accessibility consultants” to continuously update website content and coding. Id.; see also Thomas

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B. Alleman, Bank Websites Attract ADA Claims: A Survey of the Issues, BLOOMBERG. This can

lead to annual maintenance costs ranging anywhere from $4,800 to $23,400 per site, per business.

Id. Unlike a ramp or other physical accommodation which usually requires a one-time structural fix,

digital website compliance without guidelines is a continued concern for businesses. Because small

businesses are required to exert a massive amount of time and energy into focusing on coding

updates, focus is ultimately taken away from the daily needs of the business itself.

3. Undue Financial Burdens Have A More Substantial Impact On Smaller Businesses Like Spicy Peach.

Meeting ADA compliance falls more heavily on smaller, non-chain, businesses that are less

likely to have in-house technology departments. These small businesses do not have access to “in

house” technology departments who can assist with the day to day administrative needs of the

websites—rather, they are left to do it on their own.

Fauci might claim that running and maintaining the website comes with the territory of Spicy

Peach’s business, however, without knowing the standard required, getting a true estimate of cost is

difficult. Private companies, like Spicy Peach, cannot be expected to make sense of the current

standing of the ADA and its relation to websites as it presently reads. Additionally, these smaller

businesses are at risk of making detrimental financial investments that may turn out later to be

insufficient and a waste of time and effort. If the precedent set by this Court is that the ADA applies

to all websites regardless of a nexus, small businesses are at extreme risk of financial loss.

As it stands, the ADA has yet to characterize websites the way Fauci wants, which is simply

out of this Courts purview. For these reasons, Spicy Peach urges this Court to not take up this issue

themselves in the face of such intricate and impactful cost considerations, without further guidance.

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CONCLUSION AND PRAYER

For the forgoing reasons, Spicy Peach respectfully request this Court reverse the judgment

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

Respectfully submitted this 21st day of September, 2020.

/s/ Team E

___________________________________________

Team E

Counsel for Spicy Peach, Inc.