Team B

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRTEENTH CIRCUIT

Docket No. 20-00239

ANTHONY FAUCI,

Plaintiff - Appellee,

-v.-

SPICY PEACH, INC.,

Defendant - Appellant

On Appeal from the United States District Court for the District of Emory

Case No. 19-CV-01203

BRIEF OF SPICY PEACH, INC.,

Appellant

ORAL ARGUMENT REQUESTED

Team B

i

TABLE OF CONTENTS

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

ISSUES PRESENTED .................................................................................................................. 1

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

PROCEDURAL HISTORY ......................................................................................................... 3

SUMMARY OF THE ARGUMENT .......................................................................................... 4

STANDARD OF REVIEW .......................................................................................................... 5

ARGUMENT ................................................................................................................................. 5

I. The District Court Should Not Have to Consider Fauci’s New Argument Because It

Would Contradict the Purpose of the Federal Magistrate Act, and the District Court

Has Discretionary Authority Over What to Review. ............................................................. 5

A. The District Court Should Not Have to Consider Fauci’s New Argument Because

It Would Contradict the Purpose of the Federal Magistrates Act While Undermining

the Authority of the Magistrate Judge. ............................................................................... 6

1. Making the District Court Consider Fauci’s New Argument Contradicts the Purpose

of the Federal Magistrates Act Because It Incorrectly Interprets the Meaning of “De Novo

Determination.” .................................................................................................................... 6

2. Making the District Court Consider Fauci’s New Argument Contradicts the Purpose

of the Federal Magistrates Act Because It Puts an Undue Burden on the District Court

While Undermining the Magistrate’s Authority. ................................................................. 8

B. The District Court Should Not Have to Consider Fauci’s New Argument Because

Congress Grants the District Court Discretionary Authority Over What to Review. .... 9

1. Under the Majority Approach of Efficiency, the District Court Is Not Required to

Consider New Legal Arguments Because They Have Discretionary Authority Over What

to Review. .......................................................................................................................... 10

2. Even if the Majority Approach Is Not Used, Discretion Will Be Given to the District

Court Under the Wells Fargo Balancing Test.................................................................... 11

C. Even If This Court Used the Fourth Circuit Approach, the District Court Still

Should Not Hear Fauci’s New Legal Argument Because the Objection Was Not

Properly Filed in a Timely Manner. .................................................................................. 14

II. Spicy Peach’s Website Is Not a Place of Public Accommodation Within the Meaning

of the American with Disabilities Act Because Its Website Is Not a “Physical Place” and

No Sufficient Nexus Between Its Store and Digital Library Exists. ................................... 16

Team B

ii

A. Spicy Peach’s Website Is Not a “Place” of Public Accommodation as Defined by

the Plain Language of the ADA Because It Is Not an Actual, Physical Place ................ 16

1. Sound Principles of Statutory Interpretation, the Unambiguous Language of Title III,

and Its Implementing Regulations All Require a Physical Place. ..................................... 17

2. Reliance on the ADA’s Purpose to Override the “Place” Requirement Runs Afoul of

an Express, Legislatively Enacted Statutory Limitation. ................................................... 19

B. Even If This Court Rejected the Plain Language of the ADA, No Sufficient Nexus

Exists Between Spicy Peach’s Website and Its Single Store Because the Website Is Not

a Gateway to Its Store. ........................................................................................................ 21

1. Spicy Peach’s Website Is Not a “Gateway” to Its Brick and Mortar Store to

Sufficiently Create a Nexus. .............................................................................................. 22

2. Fauci Was Not Discriminated Against as He Had “Equal Access” to the Physical

Store and the Adult Video Was Effectively Communicated to Him. ................................ 23

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

Team B

iii

TABLE OF AUTHORITIES

United States Federal Statutes

28 U.S.C. § 636 (2018) .......................................................................................................... passim

42 U.S.C. § 12182 (2018) ....................................................................................................... 16, 24

42 U.S.C. § 12181 (2018) ............................................................................................................. 19

United States Federal Rules

Fed. R. Civ. P. 56(c) ....................................................................................................................... 5

United States Supreme Court Cases

Anderson v. Wilson,

289 U.S. 20 (1933) .................................................................................................................... 21

Argentina v. Weltover, Inc.,

504 U.S. 607 (1992) .................................................................................................................. 20

Bloate v. U.S.,

559 U.S. 196 (2010) .................................................................................................................. 20

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) .................................................................................................................... 5

Circuit City Stores Inc., v. Adams,

532 U.S. 105 (2001) .................................................................................................................. 17

Jacobellis v. Ohio,

378 U.S. 184 (1978) .................................................................................................................. 25

Reno v. ACLU,

521 U.S. 844 (1997) .................................................................................................................. 19

U.S. Jaycees v. Mass. Comm'n Against Discrimination,

391 Mass. 594 (1984) ................................................................................................................ 17

United States v. Raddatz,

447 U.S. 667 (1980) .................................................................................................. 6, 7, 8, 9, 15

United States Courts of Appeals Cases

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

appeal dismissed, 385 F.3d 1324 (11th Cir. 2004) ............................................................. 17, 18

Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc.,

603 F.3d 666 (9th Cir. 2010) ..................................................................................................... 24

Campbell v. U.S. Dist. Court for N. Dist. of Cal.,

501 F.2d 196 (9th Cir. 1974) ....................................................................................................... 7

Chapman v. Pier 1 Imports (U.S.) Inc.,

631 F.3d 939 (9th Cir. 2011) ..................................................................................................... 20

Cupit v. Whitley,

28 F.3d 532 (5th Cir. 1994) ............................................................................................... 6, 9, 10

Team B

iv

United States Courts of Appeals Cases Continued

Haynes v. Dunkin’ Donuts LLC et al.,

741 Fed. App’x 752 (11th Cir. 2018) ........................................................................................ 22

Jankey v. 20th Cent. Fox Film Corp., 14 F. Supp. 2d 1174 (C.D. Cal. 1998),

aff'd, 212 F.3d 1159 (9th Cir. 2000) .......................................................................................... 20

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

833 F.3d 530 (5th Cir. 2016) ..................................................................................................... 17

Marshall v. Chater,

75 F.3d 1421 (10th Cir. 1996) ........................................................................................... 6, 9, 10

Park Motor Mart, Inc. v. Ford Motor Co.,

616 F.2d 603 (1st Cir. 1980) ..................................................................................................... 10

Parker v. Metro. Life Ins. Co.,

121 F.3d 1006 (6th Cir. 1997) ................................................................................................... 17

Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co.,

840 F.2d 985 (1st Cir. 1988) ....................................................................................... 5, 9, 10, 11

Patton v. Johnson,

915 F.3d 827 (1st Cir. 2019) ..................................................................................................... 10

Robb Evans & Assocs., LLC v. United States,

850 F.3d 24 (1st Cir. 2017) ....................................................................................................... 10

Sommer v. Davis,

317 F.3d 686 (6th Cir. 2003) ....................................................................................................... 5

Stoutenborough v. National Football League, Inc.,

59 F.3d 580 (6th Cir. 1995) ....................................................................................................... 19

United States v. George,

971 F.3d 1113 (4th Cir. 1992) ................................................................................................... 15

Voyeur Dorm, L.C. v. City of Tampa,

265 F.3d 1232 (11th Cir. 2001) ................................................................................................. 19

Weyer v. Twentieth Cent. Fox Film Corp.,

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

Weyer v. Twentieth Century Fox Film Corp.,

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

White v. Divine Investments Inc.,

286 Fed. Appx. 344 (9th Cir. 2008) .................................................................................... 24, 25

Williams v. McNeil,

557 F.3d 1287 (11th Cir. 2009) ................................................................................................... 6

United States District Court Cases

Amadasu v. Ngati,

No. 05-CV-2585 RRM LB, 2012 WL 3930386 (E.D.N.Y. Sept. 9, 2012) ......................... 12, 13

Chamblee v. Schweiker,

518 F. Supp. 519 (N.D. Ga. 1981) ............................................................................................ 10

Team B

v

United States District Court Cases Continued

Cullen v. Netflix, Inc.,

880 F. Supp. 2d 1017 (N.D. Cal. 2012) .................................................................................... 18

Earll v. eBay, Inc.,

No. 5:11-CV-002626-JF HRL, 2011 WL 3955485 (N.D. Cal. Sept. 7, 2011) ......................... 18

Jancik v. Redbox Automated Retail, LLC,

No. SACV 13-1387-DOC, 2014 WL 1920751 (C.D. Cal. May 14, 2014) ......................... 18, 23

National Fed’n of the Blind v. Target Corp.,

452 F. Supp. 2d 946 (N.D. Cal. 2006) ................................................................................ 21, 22

Noah v. AOL Time Warner, Inc.,

261 F. Supp. 2d 532 (E.D. Va. 2003) ........................................................................................ 19

Torres v. AT & TBroadband, LLC,

158 F. Supp. 2d 1035 (N.D. Cal. 2001) .................................................................................... 19

Wells Fargo Bank N.A. v. Sinnott,

No.2:07-CV-169, 2010 WL 297830 (D. Vt. Jan. 19, 2010)................................................ 11, 12

Young v. Facebook, Inc.,

790 F. Supp. 2d 1110 (N.D. Cal. 2011) .................................................................................... 18

United States Congressioonal Reports

H. R. REP. NO. 94-1609 (1976) ................................................................................................. 7, 15

S. REP. NO. 90-371 (1967). ......................................................................................................... 5, 8

United States Government Accountability Office Reports

U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-84-46, COMPTROLLER GENERAL’S REPORT TO THE

CONGRESS: POTENTIAL BENEFITS OF FEDERAL MAGISTRATES SYSTEM CAN BE BETTER

REALIZED (1983) ..................................................................................................................... 8, 9

United States Code of Federal Regulations

28 C.F.R. § 35.160 ........................................................................................................................ 21

28 C.F.R. § 36.104 ........................................................................................................................ 19

28 C.F.R. § 36.303 .................................................................................................................. 19, 25

United States Congressional Hearing

Applicability of the Americans With Disabilities Act (ADA) to Private Internet Sites: Hearings

Before the House Subcomm. on the Constitution of the House Comm. On the Judiciary, 106th

Cong. 31–32 (2000) (http://www.house.gov/judiciary/2.htm) ............................................ 20, 21

California Court of Appeal Case

Martinez v. San Diego County Credit Union, 264 Cal. Rptr. 3d 600 (Cal. App. 4th Dist. 2020) 21

Team B

1

ISSUES PRESENTED

I. Under Federal law, did the United States District Court for the District of Emory properly

consider Fauci’s new argument which was not submitted to or considered by the

magistrate judge?

II. Whether an online website is a “place of public accommodation” within the meaning of

Title III of the Americans with Disabilities Act?

Team B

2

STATEMENT OF FACTS

Section 636 of the Federal Magistrates Act (“FMA”) grants the magistrate important

authority in hearing a case and providing a Report and Recommendation (“R&R”) to the district

judge on review, who then has the ability to make a de novo determination on the magistrate’s

findings. Federal Magistrates Act of 1968, 28 U.S.C. § 636 (2018). (R. at 13.) Title III of the

Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability in

places that are considered public accommodations. Americans with Disabilities Act of 1990, 42

U.S.C. § 12182 (2018). (R. at 20.)

Spicy Peach, Inc. is an adult entertainment business that allows adults to rent videos in

their brick-and-mortar store, as well as separately through their website. (R. at 9–10.) Spicy

Peach’s website features many of the same adult videos available for rent at the physical store, but

it allows customers to rent and stream adult videos completely online. (R. at 10.) All transactions

done online are separate from transactions conducted in-store. (R. at 10.) This means that a

customer cannot order a video online and then pick it up at the store location. (R. at 10.)

With a hearing impairment, Anthony Fauci uses closed captioning to watch videos and

movies. (R. at 9). Fauci rented a video from Spicy Peach’s online store and found that it did not

have closed captioning. (R. at 10.) The videos at the physical store location all provide closed

captioning; however, the videos offered through Spicy Peach’s website do not have closed

captioning. (R. at 11.) Fauci’s sole complaint is that the video content available for rent on Spicy

Peach’s website does not provide closed captioning. (R. at 11.) Spicy Peach claims that their

website is not a place of public accommodation under the ADA. (R. at 21.)

Team B

3

PROCEDURAL HISTORY

Fauci filed his claim in district court pro se, without reason, on April 1, 2019. (R. at 11.)

After both Spicy Peach and Fauci moved for summary judgment, the district court referred the

motion to the assigned magistrate judge, Honorable Andrew Cuomo, for an R&R. (R. at 11.) Since

Fauci had ninety days to perform discovery, Judge Cuomo denied Fauci’s motion for additional

discovery time on August 8, 2019 but granted Fauci until September 1, 2019 to oppose the

summary judgment order. (R. at 11.)

When Coron & Varis, LLP learned of Fauci’s case, they represented him and prepared a

new summary judgment motion while also seeking reconsideration of the Order denying the

extension of discovery. (R. at 11–12.) On January 27, 2020, Judge Cuomo issued an R&R that the

district court grant Spicy Peach’s motions for summary judgment against Fauci’s ADA claim. (R.

at 12.) Any objections to the R&R were due by February 10, 2020, so Fauci’s counsel filed a letter

seeking an extension of time to object on February 1, 2020. (R. at 12.) Fauci incorrectly assumed

that the district court was late in responding to the letter, when instead there was a filing error

which caused the letter to enter the system on February 11, 2020. (R. at 12.) The district court

adopted the R&R on February 14, 2020 without knowledge of Fauci’s letter. (R. at 12.)

Fauci filed a motion opposing the district court’s adoption of the R&R on February 20,

2020, which attacked the R&R on brand new legal grounds. (R. at 12.) Fauci then filed an

exhaustive amount of affidavits and exhibits supporting the new argument never heard by Judge

Cuomo. (R. at 12.) Spicy Peach argues that the district court cannot consider Fauci’s objections to

Judge Cuomo’s R&R and that the review of the objections should not be de novo. (R. at 12.)

Team B

4

SUMMARY OF THE ARGUMENT

I.

The district court should not have to consider Fauci’s new argument because it would

contradict the purpose of the FMA, and the district court has discretionary authority over what to

review. The district court should not have to consider Fauci’s new argument because it would

contradict the purpose of the FMA while undermining the authority of the magistrate judge.

Additionally, the district court should not have to consider Fauci’s new argument because

Congress grants the district court discretionary authority over what to review. Under discretionary

authority, the majority of circuits approach efficiency, and the Wells Fargo balancing test, both

weigh in favor of Spicy Peach. and this Court not needing to hear Fauci’s new legal argument.

Even if this court used the Fourth Circuit approach, the district court still should not hear Fauci’s

new legal argument because the objection was not properly filed in a timely manner.

II.

Spicy Peach’s online streaming website is not “a place of public accommodation” under

Title III of the ADA, because the statute requires an actual, physical place for disability

requirements to apply. This “place” requirement is not superfluous—sound principles of statutory

interpretation and the ADA’s regulations themselves reflect Congress’s intent to statutorily limit

the definition of covered entities. Even if this court rejects this approach, there is an insufficient

nexus between the website and Spicy Peach’s store because it is not a “gateway” to the physical

location. Accordingly, the district court misapplied the nexus test to attach liability to Spicy Peach.

Team B

5

STANDARD OF REVIEW

A party is entitled to summary judgment if the record shows there is no genuine issue as to

any material fact, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). The moving party “bears the initial responsibility of informing the district court of the basis

for its motion, and identifying those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.’” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56). Upon timely objection from the non-moving party,

the Appellate Court typically reviews the denial of a motion to reconsider using the “abuse of

discretion” standard, but where reconsideration of summary judgment is sought a “de novo

review” is appropriate. Sommer v. Davis, 317 F.3d 686, 691 (6th Cir. 2003). Applying this

standard, this Court should reverse the decision of the U.S. District Court for the District of Emory.

ARGUMENT

I. The District Court Should Not Have to Consider Fauci’s New Argument Because It

Would Contradict the Purpose of the Federal Magistrate Act, and the District Court

Has Discretionary Authority Over What to Review.

The role played by magistrates within the federal judicial framework is an important one.

Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988). The

purpose of the FMA is to promote efficiency within the judicial system to ease the burden on the

district court with their heavy caseload. S. REP. NO. 90-371, at 11 (1967). This purpose is specified

by Congress’s amendment of the statute in 1976 to include the ability of the district court to make

a “de novo determination” of the magistrate’s findings. 28 U.S.C. § 636(1)(b)(C) (2018).

The majority of Circuits agree that allowing the district court the discretionary authority to

choose which new arguments to hear respects the original intent of 28 U.S.C. § 636. Paterson–

Leitch, 840 F.2d at 990–91; Cupit v. Whitley, 28 F.3d 532, 535 n. 5 (5th Cir. 1994); Marshall v.

Team B

6

Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). In fact, Congress directly grants federal courts with

jurisdiction and authority thus imparting district courts with broad discretion in areas of fact.

Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009).

A. The District Court Should Not Have to Consider Fauci’s New Argument

Because It Would Contradict the Purpose of the Federal Magistrates Act

While Undermining the Authority of the Magistrate Judge.

The introduction of Fauci’s new legal argument before the district court contradicts the

FMA’s purpose of promoting efficiency, giving importance to the magistrate judge, and easing the

district court’s burden of a heavy caseload. By using the term “de novo determination” in referring

to what the district court can review, Congress did not intend for the district court to conduct a de

novo hearing of the issue by hearing new legal arguments never brought in front of the magistrate.

28 U.S.C. § 636(b)(1)(C) (2018). The FMA is meant to streamline the judicial process. Therefore,

allowing Fauci to introduce a new argument never brought before the magistrate and

acknowledged in the R&R would frustrate the Act’s purpose.

1. Making the District Court Consider Fauci’s New Argument

Contradicts the Purpose of the Federal Magistrates Act Because It

Incorrectly Interprets the Meaning of “De Novo Determination.”

The district court should not hear Fauci’s new legal argument because the district court is

only subject to make a de novo determination on the magistrate’s R&R. Since Fauci’s new legal

argument was never demonstrated to the magistrate, a de novo determination is not possible under

the language of the FMA. The FMA states that “a judge of the court shall make a de novo

determination” when reviewing the magistrate’s R&R. 28 U.S.C. § 636(b)(1)(C) (2018) (emphasis

added). In using the term “de novo determination,” the FMA does “not [call for] a de novo

hearing.” United States v. Raddatz, 447 U.S. 667, 674 (1980). This means that the district court is

not “required to rehear” the testimony, but instead is required to make a determination based upon

the magistrate’s findings in the R&R. Id.

Team B

7

Further, the court in Campbell defined de novo determination in the same way, where the

district judge would not rehear the testimony, but instead rely on the magistrate’s R&R to make a

de novo determination from the magistrate’s findings. Campbell v. U.S. Dist. Court for N. Dist. of

Cal., 501 F.2d 196, 206 (9th Cir. 1974). In introducing a new legal argument before the district

court that was never presented before the magistrate, Fauci is not entitled to a de novo hearing, but

rather just a de novo determination based on the magistrate’s findings in the R&R under the FMA.

Congress set in place the de novo determination requirement when it amended section 636

of the FMA in 1976. This revealed their intent for the district court to only make a determination

based on the magistrate’s R&R not conduct a new hearing with arguments never presented before

the magistrate. The House insisted on clarifying what the original language of the FMA meant by

stating the judge “may accept, reject, or modify” the magistrate’s findings. 28 U.S.C. §

636(b)(1)(C) (2018). In order to clarify this language, the House revealed the district judge would

not have “to actually conduct a new hearing on contested issues.” H. R. REP. NO. 94-1609, at 3

(1976). Instead, the judge would strictly consider the magistrate’s R&R and make a determination

based upon that record. H. R. REP. NO. 94-1609.

The Court in Raddatz even explained that the 1976 revision of section 636 of the FMA

“had provided for a de novo determination, rather than a de novo hearing.” Raddatz, 447 U.S. at

675–76. The Court further explains that Congress intentionally chose to use determination rather

than hearing for the district court to make a de novo determination on the magistrate’s findings,

as opposed to conducting a de novo hearing that involves new arguments never before the

magistrate. Id. at 676. Allowing the introduction of Fauci’s new legal argument not presented

before the magistrate would contradict the congressional intent and legislative history of the FMA.

Team B

8

Given the plain language, congressional intent, and legislative history of the statute’s

amendment to include de novo determination, Fauci should not be allowed to introduce a new

legal argument that was never presented in front of the magistrate for the R&R.

2. Making the District Court Consider Fauci’s New Argument

Contradicts the Purpose of the Federal Magistrates Act Because It Puts

an Undue Burden on the District Court While Undermining the

Magistrate’s Authority.

The FMA states that the district court “may reconsider any pretrial matter where it has been

shown that the magistrate judge’s order is clearly erroneous or contrary to law.” 28 U.S.C. §

636(b)(1)(A) (2018). The clearly erroneous standard of reviewing a magistrate’s decision indicates

that Congress gave the magistrate high authority in its ability to hear and report on a case. Allowing

the district court to consider Fauci’s new legal argument undermines the importance of the

magistrate because it contradicts the clearly erroneous standard set forth by Congress for the

district court’s reconsideration.

Requiring the district court to hear Fauci’s new legal argument would contradict the FMA’s

purpose of easing the burden on the district courts. The FMA was enacted to provide judicial relief

for district court judges in handling their caseloads. S. REP. NO. 90-371, at 9 (1967). The

magistrate’s R&R is designed to help district courts analyze and decide legal issues without fully

hearing the matters themselves. With the enactment of the FMA, magistrate judges became an

important and integral part of the federal judicial system as fully capable, impartial arbiters of law.

U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-84-46, COMPTROLLER GENERAL’S REPORT TO THE

CONGRESS: POTENTIAL BENEFITS OF FEDERAL MAGISTRATES SYSTEM CAN BE BETTER REALIZED

1, 6 (1983). It was determined that the magistrate makes a “substantial contribution to the

movement of cases” because an increase in the production of the district court was seen after the

implementation of the FMA. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-84-46. The Court in

Team B

9

Raddatz concluded “that to construe § 636(b)(1) to require the district court to conduct a second

hearing whenever either party objected to the magistrate’s . . . findings would largely frustrate the

plain objective of Congress to alleviate the increasing congestion of litigation in district courts.”

Raddatz, 447 U.S. at 676 n.3. Allowing Fauci to bring a new claim before the district court

contradicts Congress’s objective in enacting the FMA to cut down on the district court’s burden

of heavy caseloads.

The FMA promotes efficiency within the federal judicial system. The damage to efficiency

would be too high if Congress required district courts to hear new legal arguments never presented

before the magistrate judge. Efficiency is lost when a litigant circumvents the system by deciding

to change their arguments after receiving an unfavorable report from the magistrate. This would

result in a waste of time, effort, and money, thus defeating the purpose of efficiency under the

FMA. Accordingly, requiring the district court to consider Fauci’s claim that was never presented

to the magistrate would frustrate the purpose of the FMA by undermining the magistrate’s

authority and creating an undue burden on the district court.

B. The District Court Should Not Have to Consider Fauci’s New Argument

Because Congress Grants the District Court Discretionary Authority Over

What to Review.

The Supreme Court has not ruled on a case regarding when to allow new legal arguments

that were not presented to a magistrate judge. Therefore, the Supreme Court has not set a test or

approach to determine when to allow this issue. The majority of circuits agree that allowing the

district court the discretionary authority to choose which new arguments to hear respects the

original intent of 28 U.S.C § 636. Paterson–Leitch Co., 840 F.2d at 990–91; Cupit, 28 F.3d at 535

n. 5; Marshall, 75 F.3d at 1426.

Team B

10

1. Under the Majority Approach of Efficiency, the District Court Is Not

Required to Consider New Legal Arguments Because They Have

Discretionary Authority Over What to Review.

The majority of circuits that have ruled on this issue hold that a district court should not

consider new legal arguments because it would negate efficiencies gained through the FMA and

would permit litigants to change tactics after the issuance of an R & R. See, e.g., Paterson–Leitch

Co., 840 F.2d at 990–91 (“an unsuccessful party is not entitled as of right to de novo review by the

judge of an argument never seasonably raised before the magistrate.”); Cupit, 28 F.3d at 535 n. 5

(holding that a party waived an argument by failing to raise it before the magistrate judge);

Marshall, 75 F.3d at 1426 (“[i]ssues raised for the first time in objections to the magistrate judge's

recommendation are deemed waived.”). Magistrates exist “to assume some of the burden imposed

[on the district courts] by a burgeoning caseload.” Chamblee v. Schweiker, 518 F. Supp. 519, 520

(N.D. Ga. 1981). The judicial system is premised on the notion that magistrates will “relieve courts

of unnecessary work” in order to efficiently serve litigants in the federal system. Park Motor Mart,

Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).

Under the majority approach, a party cannot successfully urge a magistrate judge to apply

a particular body of law and then, dissatisfied with the outcome that the party invited, ask the

district court to apply some other body of law. Patton v. Johnson, 915 F.3d 827, 837 (1st Cir.

2019). The court in Robb Evans states “the law is settled that a litigant must put its best foot

forward before a magistrate judge, and cannot introduce new arguments for the first time on the

district court's review of the magistrate judge's ruling or recommendation.” Robb Evans & Assocs.,

LLC v. United States, 850 F.3d 24, 35 (1st Cir. 2017). While using the majority approach the court

reasoned “it would be fundamentally unfair to permit a litigant to set its case in motion before the

Team B

11

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., 840 F.2d at 991.

This Court should adopt the majority approach as it provides efficiency for the court.

Furthermore, it provides a bright line approach for litigants to follow that urges them to put their

best foot forward and raise all arguments before the magistrate judge. Providing this approach also

promotes efficiency by eliminating unnecessary litigation and court costs. Moreover, efficiency

should be of the utmost importance to this Court after the Covid-19 pandemic has caused a backlog

within this judicial system. Under the majority’s bright line approach, the district court should not

hear Fauci’s additional argument because it was not raised before the magistrate judge.

2. Even if the Majority Approach Is Not Used, Discretion Will Be Given

to the District Court Under the Wells Fargo Balancing Test.

The district court in Wells Fargo adopted a six-part test for determining whether a district

court, in the exercise of its discretion, should or should not consider a legal argument not raised

before the magistrate judge. Wells Fargo Bank N.A. v. Sinnott, No.2:07-CV-169, 2010 WL

297830, at *4 (D. Vt. Jan. 19, 2010). The court based its six-part test on the Second Circuit’s

standard for reviewing an objection to a R&R where new legal arguments were raised for the first

time in the district court. Id.

The court in Wells Fargo concluded that an exercise of discretion should be guided by the

following factors:

(1) the reason for the litigant’s previous failure to raise the new legal argument; (2) whether

an intervening case or statute has changed the state of the law; (3) whether the new issue

is a pure issue of law for which no additional fact-finding is required; (4) whether the

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

Team B

12

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.

In Amadasu the court utilized the Wells Fargo test to decide whether to consider a new

legal argument that was not raised before the magistrate judge. Amadasu v. Ngati, No. 05-CV-

2585 RRM LB, 2012 WL 3930386, at *6 (E.D.N.Y. Sept. 9, 2012). When analyzing the first factor,

the court noted that the reason the plaintiff previously failed to submit a new legal argument is

because he sought an extension on discovery. Id. In applying the first factor of Wells Fargo, the

court determined that the plaintiff was fully capable of understanding that he could file a motion

for or objection to summary judgment. Id. The court was not sympathetic to the plaintiff in

considering the first factor because he did not suggest that any misunderstanding of substantive or

procedural law prevented him from filing a motion prior to the deadline. Id. Regarding the second

factor, the court reasoned the state of the law had not changed, and thus no new ground for relief

became available to the plaintiff. Id.

In applying Wells Fargo’s third factor, the court weighed in the plaintiff’s favor because it

was a purely legal issue. Id. The court reasoned the fourth Wells Fargo factor was also in the

plaintiff’s favor because the resolution of whether plaintiff or defendants are entitled to summary

judgment is not open to serious question when the case is a straightforward legal action. Id.

When weighing the fifth and sixth factors of Wells Fargo, the court found in the

defendant’s favor that no manifest injustice would result if the court declined to consider the

plaintiff’s objection and late motion since the judge previously analyzed whether the defendant

was entitled to summary judgment. Id. In the essence of preserving judicial economy and fairness,

the court further opined that a manifest injustice would result if the court undid all of the work that

Team B

13

went into the resolution of the defendant’s summary judgment motion. Id. Accordingly, the court

weighed in favor of the defendant in the first, second, fifth, and sixth factors of the Wells Fargo

test, and therefore balanced in favor of the defendant. This exercised the court’s discretion against

considering new legal arguments not filed in time and not heard by the magistrate judge. Id. at 7.

Like Amadasu, where the litigant failed to submit the new legal argument because the

litigant sought an extension and chose not to file by the court’s deadline, Fauci sought an extension

on the time to object and chose not to file the objection with the new legal argument by the court’s

deadline of February 10, 2020. (R. at 12.) Accordingly, like the court in Amadasu that was not

sympathetic on the first factor of Wells Fargo, this Court should not sympathize that Fauci’s

representatives did not know that they should file objections by the court appointed deadline of

February 10, 2020. In applying the first factor, this Court should weigh in favor of Spicy Peach.

Similar to the court’s application of the second factor in Amadasu where it reasoned the state of

the law had not changed, the ADA law did not change during the current proceedings, and therefore

no new ground of relief became available to Fauci. Accordingly, this court should also weigh in

favor of Spicy Peach on the second factor.

Unlike the court's determination for the third Wells Fargo factor in Amadasu, where it was

determining a pure question of law with no additional documents adding to the court's decision,

Fauci filed a voluminous series of affidavits and exhibits supporting the new legal argument which

inserts new disputes on questions of facts. (R. at 12.) Although the magistrate judge already

completed the fact finding for the previous legal issues, the district court judge will need to conduct

new fact finding if this argument is heard. Since new fact finding is required, this Court should

weigh in favor of Spicy Peach on the third factor of Wells Fargo.

Team B

14

In applying the Fourth Wells Fargo factor, Spicy Peach agrees with this Court that the

resolution of whether plaintiff or defendant are entitled to summary judgment is open to serious

question. (R. at 18.) This is a novel issue of law that has not been decided before this Court or any

other Court within the federal judicial system. (R. at 18.)

Moreover, like Amadsu, where the court combined the fifth and sixth Wells Fargo factors,

this Court should do the same because a manifest injustice would result if the court undid all of

the magistrate judge’s work that went into the resolution of Spicy Peach’s summary judgment.

In sum, all factors of Wells Fargo weigh in favor of Spicy Peach. If this court chooses to

adopt the discretionary approach, all tests weigh in favor of Spicy Peach, and thus this court should

not hear Fauci’s new legal argument. This Court should follow the discretionary approach because

it lays out two tests that align with the FMA and promotes efficiency in the federal judicial system.

Furthermore, the majority of circuits’ bright line approach is easy to follow, and this Court already

noted that the Wells Fargo test is “the cleanest approach to determine whether discretion should

be employed and the most representative of striking a balance between the tension at the heart of

the FMA.” (R. at 18.) Accordingly, this Court should adopt the discretionary approach with the

majority of circuits. The district court, therefore, should not have heard Fauci’s new legal argument

because it was never raised before the magistrate and fails a Wells Fargo analysis.

C. Even If This Court Used the Fourth Circuit Approach, the District Court Still

Should Not Hear Fauci’s New Legal Argument Because the Objection Was

Not Properly Filed in a Timely Manner.

The Fourth Circuit approach that the district court wants this Court to use requires that

district courts hear all arguments brought forth for consideration by the parties since de novo

review requires reconsideration from the ground up. United States v. George, 971 F.3d 1113, 1118

Team B

15

(4th Cir. 1992). This approach improperly uses the term “de novo review” instead of “de novo

determination” as specified in section 636 of the FMA. 28 U.S.C. § 636(b)(1)(C) (2018). Changing

the plain language of the statute from de novo determination to de novo review contradicts the

purpose of the FMA as seen by the congressional intent and legislative history of the statute. The

1976 amendment of section 636 specifically added de novo determination into the language to

clarify the district court’s authority in reviewing a magistrate’s recommendation in order to

promote efficiency and to streamline the judicial process. The Fourth Circuit’s change of the

statute undermines Congress, something this Court simply cannot do but will do if the district court

is required to hear Fauci’s new legal argument on a de novo review instead of considering the

magistrate’s recommendations on a de novo determination.

Even if this interpretation was appropriate, the FMA states that the de novo determination

is a standard for reconsideration of “recommendations for which objection is made.” 28 U.S.C. §

636(b)(1)(C) (2018). The Court in Raddatz further explains that de novo review of a Report and

Recommendation means that a “district court ‘give[s] fresh consideration to those issues to which

specific objection has been made.’” Raddatz, 447 U.S. at 675, quoting H.R. Rep. No. 94-1609, at

3. A specific objection was never made before the court in Fauci’s case. Fauci failed to make a

proper objection before the court, which takes away the district court’s ability to review the new

legal argument. (R. at 12.) The filing error was on a request for an extension of time for an

objection, not a specific objection itself. (R. at 12.) Due diligence must be exercised when

complying with deadlines with the court, and unfortunately, Fauci incorrectly assumed that the

court was late in response. (R. at 12.) A proper objection was never made before the court;

therefore, the district court has no obligation to give a fresh consideration to the magistrate’s R&R

and hear Fauci’s new legal argument under the Fourth Circuit’s approach.

Team B

16

II. Spicy Peach’s Website Is Not a Place of Public Accommodation Within the Meaning

of the American with Disabilities Act Because Its Website Is Not a “Physical Place”

and No Sufficient Nexus Between Its Store and Digital Library Exists.

The Americans with Disabilities Act (“ADA”) created new protections for individuals

with disabilities. Specifically, Title III of the ADA requires: “[n]o individual shall be discriminated

against on the basis of disability in the full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of any place of public accommodation […].” 42 U.S.C.

§ 12182(a) (2018). While the statute paints a broad brush in its prohibition of discrimination, it

nonetheless creates necessary elements to trigger an ADA violation. Central to these elements is

the threshold requirement that a violation arises at a place of public accommodation. 42 U.S.C. §

12182(a) (2018) (emphasis added). The U.S. Magistrate recommended in his R&R that Spicy

Peach’s website was indeed not a “place” within the meaning of the ADA, and the District Court

declared that the purpose and intent of the ADA overrode this central requirement. (R. at 8, 20.)

On appeal, Fauci proposes this Court read out the “place” requirement entirely and replace

Congress’s express limitation with the overall purpose of the ADA to protect those with

disabilities. (R. at 22.); infra at 21. Yet the text of the statute, principles of statutory interpretation,

and sound policy are in agreement: Spicy Peach’s website is not a place of public accommodation.

A. Spicy Peach’s Website Is Not a “Place” of Public Accommodation as Defined

by the Plain Language of the ADA Because It Is Not an Actual, Physical Place.

Beginning with the language of Title III, the ADA sets out the bright line rule that “[n]o

individual shall be discriminated against [at] any place of public accommodation […].” 42 U.S.C.

§ 12182 (2018) (emphasis added). In defining this prohibition, Congress specifically enumerated

twelve (12) statutory categories of places of public accommodation. 42 U.S.C. § 12182(7) (2018).

Read together, each of the items share the same central premise: each are actual, physical places

where goods or services are open to the public, and places where the public gets those goods or

Team B

17

services. Id. (emphasis added); see also Weyer v. Twentieth Cent. Fox Film Corp., 198 F.3d 1104,

1114 (9th Cir. 2000) (holding that Title III requires an actual, physical place for discrimination).

1. Sound Principles of Statutory Interpretation, the Unambiguous

Language of Title III, and Its Implementing Regulations All Require

a Physical Place.

Courts accept a variety of interpretative avenues to uphold the physical place requirement.

In common usage, a place is an actual “physical environment.” See U.S. Jaycees v. Mass. Comm'n

Against Discrimination, 391 Mass. 594, 601–02 (1984) (quoting Webster's Third New

International Dictionary 1727 (1968)). Other courts have specifically relied upon the principle of

noscitur a sociis (“known by its associates”) to interpret section 12181 of the ADA. Applying this

canon of statutory construction, all have concluded that because “[e]very term listed in § 12181(7)

and subsection (F) is a physical place open to public access,” a place of public accommodation

must be, or have a connection to, a physical place. Parker v. Metro. Life Ins. Co., 121 F.3d 1006,

1014 (6th Cir. 1997) (noting that statutory interpretation avoids giving “unintended breadth to the

Acts of Congress”); Magee v. Coca-Cola Refreshments, USA, Inc., 833 F.3d 530, 533 (5th Cir.

2016) (same). Along this line, other courts apply ejusdem generis (“of the same kind”) to reach

the conclusion that the statute requires a physical place. See Circuit City Stores Inc., v. Adams, 532

U.S. 105 (2001) (defining ejusdem generis as construing general words only to those enumerated

by the preceding specific words); Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d

1312, 1317–21 (S.D. Fla. 2002), appeal dismissed, 385 F.3d 1324 (11th Cir. 2004).

In Access Now, the district court held that Southwest.com was not a place of public

accommodation as defined by the plain and unambiguous language of the ADA. Id. Reasoning

from the requirements of statute, the court concluded Section 12181(7)’s list of public

Team B

18

accommodations all involve terms that are “physical, concrete structures.” Id. The court noted that

the intentional inclusion of the term “place,” combined with the examples of physical structures,

indicated Congress’s intent that the ADA’s place requirement apply to actual, physical structures.

Id. Accordingly, Southwest’s website could not be a “place” within the plain language of the ADA.

Id. Since the Southwest decision sister courts have adopted the physical place distinction. Young

v. Facebook, Inc., 790 F. Supp. 2d 1110, 1115 (N.D. Cal. 2011) (holding cyberspace is not a place

of public accommodation); Earll v. eBay, Inc., No. 5:11-CV-002626-JF HRL, 2011 WL 3955485,

at *2 (N.D. Cal. Sept. 7, 2011) (same).

Extension of Title III to streaming services has also been rejected in sister courts. See

Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012) (finding a website’s video

streaming library to not be a place of public accommodation); Jancik v. Redbox Automated Retail,

LLC, No. SACV 13-1387-DOC, 2014 WL 1920751 (C.D. Cal. May 14, 2014) (same). In Netflix,

a hearing-impaired plaintiff brought suit for Netflix’s failure to provide “full and equal access to

its services” to its online video library; primarily, for not providing closed captioning for all of its

digital library titles. Id. at 1021. As a threshold determination, the court found that Netflix’s online

streaming library placed it outside the ADA’s protections since it was not a physical place. Id. at

1024. In other words, ADA liability would not attach to Netflix even if there was a denial of the

“full and equal access” of a disabled person to its digital streaming library because Netflix’s

streaming site was not a physical location. Id.

So too, do Title III’s implementing regulations unambiguously require a physical place.

Promulgated rules by the Department of Justice define the term “place of public accommodation”

to mean “a facility, operated by a private entity, whose operations affect commerce and fall within

Team B

19

[the statutory categories].” 28 C.F.R. § 36.104 (emphasis added). And other subsequent regulations

incorporate this “facility” requirement into their standards. See 28 C.F.R. § 36.303(g) (“Movie

theater captioning and audio description”) (emphasis added); 28 C.F.R. § 36.303(g)(vii) (“Movie

theater means a facility. . .”) (emphasis added); 28 C.F.R. § 36.303 (g)(2) (“movie theater

auditoriums provide closed movie captioning [for] a digital movie”) (emphasis added); 28 C.F.R.

§ 36.303(c)(1)(ii) (“Places of lodging that provide televisions) (emphasis added).

Accordingly, both the statute and implementing regulations define a “place of public

accommodation” to be (1) a facility (2) that falls within a category. 42 U.S.C. § 12181(7) (2018).

2. Reliance on the ADA’s Purpose to Override the “Place” Requirement

Runs Afoul of an Express, Legislatively Enacted Statutory Limitation.

Fauci argues Spicy Peach’s website is included under “places of exhibition or

entertainment,” “service establishments,” and “places of exercise or recreation.” 42 U.S.C. §

12181(7) (2018); (R. at 5.) Yet sister courts have already rejected this specious expansion of the

definition of a “place” under the ADA to reject television broadcasts, website chat rooms, and

digital interfaces. See Stoutenborough v. National Football League, Inc., 59 F.3d 580 (6th Cir.

1995) (broadcast of NFL football game); Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532

(E.D. Va. 2003) (website chatroom); Torres v. AT & TBroadband, LLC, 158 F. Supp. 2d 1035,

1037–38 (N.D. Cal. 2001) (television set and digital cable menu). Also, the 11th Circuit noted that

the internet is not a physical place located in a geographical location but is available to anyone in

the world. Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232, 1237 n. 3 (11th Cir. 2001) (quoting

Reno v. ACLU, 521 U.S. 844, 851 (1997)). Indeed, the Ninth Circuit has held that Section 12181’s

Team B

20

list is not merely exemplary or illustrative, but exhaustive. Jankey v. 20th Cent. Fox Film Corp.,

14 F. Supp. 2d 1174, 1178 (C.D. Cal. 1998), aff'd, 212 F.3d 1159 (9th Cir. 2000).

It follows that the ADA does not cover all entities, at all times, for all injuries. Chapman

v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939 (9th Cir. 2011) (“while the ADA’s mandate is

comprehensive, its reach is not unlimited.”). However, the approach recommended by Fauci, the

U.S. Magistrate, and the District Court thread the line that even if the language of the ADA does

not cover his alleged injury, it should. (R. at 20) (“In light of the purpose of Title III to promote

‘the full and equal enjoyment of’ of goods and services enjoyed by those without a disability, this

Court holds [the ADA covers Spicy Peach’s website]”). This proposition merits serious caution.

When looking to expand the coercive force of federal law, “[t]he question is not whether Congress

would have wanted, but what Congress enacted.” Argentina v. Weltover, Inc., 504 U.S. 607, 618

(1992). The Supreme Court has also recognized that attempts to circumvent specific provisions of

a statute with the broad brush of “congressional purpose” merits heightened judicial scrutiny. See

Cf. Bloate v. U.S., 559 U.S. 196, 207 (2010) (stating that, as a matter of statutory interpretation, a

specific provision will apply over a provision of more general application).

A purposive approach is also undermined by congressional history. On several occasions,

both Congress and the DOJ have frankly admitted issues with the current language of “public

accommodations” within the Act. See Applicability of the Americans With Disabilities Act (ADA)

to Private Internet Sites: Hearings Before the House Subcomm. on the Constitution of the House

Comm. On the Judiciary, 106th Cong. 31–32 (2000) (http://www.house.gov/judiciary/2.htm). In

this hearing, a Congressional subcommittee specifically addressed the issues of internet

accessibility within the ADA. Id. Rather than acknowledge the ADA as a capacious standard, it

Team B

21

took testimony to resolve whether the ADA covers the internet in its current form, and concluded

amendments were needed. Id. Since then, no such congressional action has occurred. Moreover,

the DOJ has promulgated recent ADA regulations which explicitly incorporate the internet, but

not to private entities. See 28 C.F.R. § 35.160 (addressing quality standards of internet based

interpretative services as applied to public entities); see also Martinez v. San Diego County Credit

Union, 264 Cal. Rptr. 3d 600, 614 (Cal. App. 4th Dist. 2020) (noting that the Congress and DOJ

have not adopted a standard for online accessibility).

Accordingly, Fauci’s proposed judicial extension of the ADA’s public accommodations to

internet websites and virtual spaces would create new rights without well-defined standards of

implementation. Under the language of the statute, its implementing regulations, and persuasive

case law, adoption of a physical place requirement for the ADA is appropriate in the Thirteenth

Circuit. While protections of those with disabilities is an important social goal, perhaps Justice

Cardozo put it best: “We take the statute as we find it.” Anderson v. Wilson, 289 U.S. 20, 27 (1933)

(Cardozo, J.).

B. Even If This Court Rejected the Plain Language of the ADA, No Sufficient

Nexus Exists Between Spicy Peach’s Website and Its Single Store Because the

Website Is Not a Gateway to Its Store.

In an alternate theory to attach ADA liability to Spicy Peach, Fauci next asserts that Spicy

Peach may nonetheless be liable under the ADA because of the “nexus” between its store and its

streaming library. (R. at 5.) Under this test, only websites with a “sufficient nexus” to a physical

place are considered a public accommodation within the meaning of the ADA. See National Fed’n

of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006); Weyer v. Twentieth Century

Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000); Haynes v. Dunkin’ Donuts LLC et al., 741 Fed.

Team B

22

App’x 752 (11th Cir. 2018). Courts look to different factors, including heavy integration between

the site and whether it serves as a “gateway” to the store. Target, 452 F. Supp. 2d at 956. Both the

U.S. Magistrate and District Court recommended this approach, each leading to different

conclusions. (R. at 6, 21.) For the reasons below, Fauci failed to show a sufficient nexus between

Spicy Peach’s website and its physical stores.

1. Spicy Peach’s Website Is Not a “Gateway” to Its Brick and Mortar

Store to Sufficiently Create a Nexus.

A sufficient nexus exists where there is a “gateway” between a store and its online website

rendering it indistinguishable to the physical place. Target, 452 F. Supp. 2d at 956. In Target, the

district court found that the services available on Target.com were sufficiently tied to its stores to

warrant a “nexus” between its internet website and its physical stores. Id. at 955. Among other

things, customers used the website to virtually refill prescriptions, order photos, and print coupons

ahead of visiting a Target store. Id. at 949. Once in the store, customers finalized the online

transaction by picking up their orders and paying at checkout. Id. In other words, Target’s website

integrated the services of its store to the website and made itself a “gateway” to the physical store.

Applying this to the case at bar, Spicy Peach’s website is distinguishable from the close

relationship found in Target under two approaches.

First, Spicy Peach’s website does not facilitate in-store transactions. (R. at 6.) Unlike

Target, all online and in store transactions are entirely separate from each other. (R. at 4.) For

example, if an online patron wants to rent a video available in store, they cannot reserve the title

through the website or pre-pay through the website. Rather, a patron must visit the store itself and

conduct the transaction all the way from title selection, selecting rental dates, interacting with

Team B

23

employees, and paying for the video. Next, Fauci also argues that the movie rentals in the brick

and mortar store are alone sufficient for an ADA nexus. (R. at 21.) Spicy Peach readily concedes

that movie rentals are available in its brick and mortar store for patrons wishing to rent an adult

movie. (R. at 4.) However, this argument suffers an irreconcilable flaw: the existence of the digital

library itself is intended to deter patrons from making in-store transactions.

Second, a “similarity in content” approach between a website and its store is an insufficient

nexus to claim ADA discrimination. Jancik v. Redbox Automated Retail, LLC, No. SACV 13-

1387-DOC, 2014 WL 1920751 (C.D. Cal. May 14, 2014). In Redbox, an ADA plaintiff brought

suit alleging a violation of Title III due to the lack of closed captioning in Redbox’s digital

streaming library (“Redbox Instant”). Id. at *2. In support of this action, the plaintiff attempted to

attach ADA liability to the Redbox Instant website by virtue of Redbox’s 42,000 physical movie

kiosks nationwide. Id. The court upheld dismissal of the claim, reasoning that while Redbox’s

website and mobile app allowed users to reserve movies at kiosks, this was insufficient to show

“heavy integration” to attach ADA liability to Redbox. Id. at *5. Like Fauci’s complaint, the

plaintiff in Redbox attempted to attach a nexus through a means in which they were not

discriminated against. Here, Fauci uses the inclusion of store information and gift cards on its

website. (R. at 7.) Nothing in Fauci’s complaint alleges discrimination based on the website’s

location information or gift card, but solely upon streaming content. (R. at 4.) Accordingly, Fauci

cannot reinvent his complaint on appeal to manufacture a more persuasive nexus.

2. Fauci Was Not Discriminated Against as He Had “Equal Access” to

the Physical Store and the Adult Video Was Effectively

Communicated to Him.

Team B

24

To prevail on a discrimination by public accommodations claim under the ADA, a plaintiff

must show, among other things, that: the plaintiff was denied public accommodations by the

defendant because of his disability. Arizona ex rel. Goddard v. Harkins Amusement Enterprises,

Inc., 603 F.3d 666 (9th Cir. 2010) (citing 42 U.S.C. § 12182(a)). Even if Spicy Peach’s website is

a place of public accommodation, which is not, and it failed to accommodate the disability, which

it didn’t, the plaintiff must still establish that Spicy Peach failed to accommodate his hearing

impairment.

The specific definition of discrimination under the ADA prohibits several kinds of conduct.

Relevant here is an entity “failing to provide auxiliary aids and services when they are necessary

for an individual with a disability to realize the full benefit of a place of public accommodation.”

42 U.S.C. § 12182(b)(2)(A)(i)-(iii) (2018) (emphasis added). Both the District Court and Fauci’s

pleadings place great emphasis on the lack of closed captioning in an adult video being a

dispositive factor in an alleged ADA violation. (R. at 20–22.) Specifically, Fauci alleged in his

complaint that “[a]s a parody of the famous ‘Home Alone’ franchise, dialogue plays a critical role

in developing the plot, and that he cannot enjoy the movie without closed captioning due to his

hearing impairment”). (R. at 4 n. 2.)

As a threshold matter, whether a plaintiff experiences “full and equal enjoyment” of a

service is not a subjective determination. White v. Divine Investments Inc., 286 Fed. Appx. 344,

346 (9th Cir. 2008) (finding an ADA plaintiff’s subjective determination of “full and equal

enjoyment” insufficient to show discrimination). In White, an ADA plaintiff claimed that the

accessibility of a gas station impaired her subjective enjoyment of the services offered to the public

at large. Id. at 344. Arguing the broad purpose of the ADA and Title III, the plaintiff attempted to

Team B

25

hinge her discrimination claim on her personal experience at the gas station itself. Id. Finding this

an unwarranted expansion of the ADA, the court held that an ADA plaintiff’s subjective enjoyment

was insufficient to state a discrimination claim. Id. Rather, the court reaffirmed that the statute

delineates that public accommodations must provide “effective communication” to individuals

with disabilities.

This reasoning is appropriate to this case. Fauci’s alleged denial of subjective enjoyment—

here, adult film dialogue and nuanced plot points—is not on its face an ADA violation. His claim

avoids a simple truth: pornography, including Fauci’s rentals, are primarily enjoyed for their visual

communication. See, e.g., Jacobellis v. Ohio, 378 U.S. 184 (1978) (classifying a film with visual

nudity as pornography). Federal regulations expressly place the reasonableness of communication

in the hands of the covered entity. See 28 C.F.R. § 36.303(c)(1)(ii) (“… the ultimate decision as to

what measures to take rests with the public accommodation . . .”). Nor does divorcing the visual

nature square with further clarifications from the DOJ. See 28 C.F.R. § 36.303(c)(1)(ii) (“[t]he

type of auxiliary aid or service necessary [includes] the context in which the communication is

taking place.”). The context of the communication is clear: pornography is a visual medium. So

too is the context of the ADA: regulations for the disabled are not unlimited, but elemental.

CONCLUSION

For the forgoing reasons, Appellant respectfully requests this Court reverse the judgment

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

Respectfully submitted this 20th day of September 2020.

/s/ Team B

Team B

Counsel for Appellant