View
0
Download
0
Category
Preview:
Citation preview
In the UNITED STATES COURT OF APPEALS
for the THIRTEENTH CIRCUIT
C.A. No. 20-00238 ________________________________________
ANTHONY FAUCI, Plaintiff-Appellee,
v.
SPICY PEACH, INC., Defendant-Appellant.
________________________________________
ON APPEAL FROM JUDGEMENT OF THE DISTRICT COURT
FOR THE DISTRICT OF EMORY ________________________________________
BRIEF FOR THE APPELLANT
________________________________________
Team Letter S Attorneys for the Appellant
Submitted: September 21, 2020
Team Letter S
i
TABLE OF CONTENTS Page
I. TABLE OF AUTHORITIES..............................................................................................iii II. STATEMENT OF THE ISSUES........................................................................................1 III. STATEMENT OF THE FACTS.........................................................................................2 IV. SUMMARY OF THE ARGUMENT..................................................................................4 V. ARGUMENT.......................................................................................................................6 A. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE
FAUCI’S NOVEL LEGAL ARGUMENT SHOULD NOT HAVE BEEN PERMITTED TO BE HEARD BY THE DISTRICT COURT...............................................................................6
1. The District Court Incorrectly Interpreted The Plain Text Of The Statute......................7
2. There Are Multiple Approaches Among the Circuit Courts On Whether An
Argument May Be Presented To The District Court On Objection Of A Magistrate’s Report & Recommendation When The Argument Was Not Raised Before The Magistrate........................................................................................................................8
a. Spicy Peach Requests This Court To Adopt The Rule Used By The First Circuit
Because It Is Grounded In Supreme Court Precedent And Promotes The Purpose Of The Federal Magistrate Act As Intended By Congress.....................9
b. Even If This Court Were To Adopt The Balancing Test Used Within The
Second Circuit, The Factors Lean In Favor Of The Appellee’s Waiver............12
c. The District Court Inappropriately Adopted The Fourth Circuit’s Rule Because The Rule Eliminates The Purpose Of The Federal Magistrate Act....................14
B. THIS COURT SHOULD REVERSE THE DISTRICT COURT’S GRANT OF SUMMARY
JUDGMENT BECAUSE AS A MATTER OF LAW SPICY PEACH’S WEBSITE DOES NOT CONSTITUTE A PLACE OF PUBLIC ACCOMMODATION AND THEREFORE IS NOT SUBJECT TO THE PURVIEW OF THE ADA…………………….………………..17
1. The Appropriate Interpretation Of The ADA Is That The ADA Only Applies To
Physical Locations, And Therefore, The ADA Would Not Cover Claims Involving Websites........................................................................................................................18
Team Letter S
ii
2. The District Court Erroneously Relied On The First And Seventh Circuit’s Incorrect Interpretation Of The ADA Meaning of Public Accommodation, Going Beyond The Scope Of What Congress Intended...........................................................21
3. The Only Other Appropriate Standard This Court Should Adopt Is the Nexus Test,
And This Court Should Hold That Spicy Peach’s Website Does Not Have A Sufficient Nexus To Its Brick-And-Mortar Store..........................................................22
VI. CONCLUSION..................................................................................................................27
Team Letter S
iii
I. TABLE OF AUTHORITIES
Page(s) CASES Access Now, Inc. v. Southwest Airlines, Co.,
277 F. Supp. 2d 1312 (S.D. Fla. 2002)................................................................................. 22, 23
Ariz. ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666 (9th Cir. 2010) ...................................................................................................... 17
Bertuzzi v. Copiague Union Free Sch. Dist.,
2020 U.S. Dist. LEXIS 124897 (E.D.N.Y. July 15, 2020). ................................................ 12, 13 Cullen v. Netflix, Inc.,
880 F.Supp.2d 1017 (N.D. Cal. 2012) ....................................................................................... 23
Cupit v. Whitley, 28 F.3d 532 (5th Cir. 1994) ........................................................................................................ 10
Cupp v. Naughten, 414 U.S. 141 (1973) ..................................................................................................................... 9
Doe v. Trs. of Bos. Coll., 892 F.3d 67 (1st Cir. 2018) .......................................................................................................... 6
Earll v. eBay, Inc., 599 Fed. App’x. 695 (9th Cir. 2015) .......................................................................................... 23
Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998) ....................................................................................................... 22
G. v. Fay Sch., 391 F.3d 1 (1st Cir. 2019) ........................................................................................................ 6, 7
Gomez v. Bang & Olufsen Am., Inc., No. 1:16-cv-23801-JAL, 2017 WL 1957182 (S.D. Fla. Feb. 2, 2017) ................................ 24, 25
Gomez, v. United States, 490 U.S. 858 (1989) ................................................................................................................... 16
Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995) ................................................................................................................... 14
Haynes v. Dunkin’ Donuts LLC, 741 Fed. App’x 752 (11th Cir. 2018) ......................................................................................... 22
Team Letter S
iv
Henrietta D. v. Bloomberg,
331 F.3d 261 (2d Cir. 2003) ....................................................................................................... 17
J.H. by & through Holman v. Just for Kids, 248 F. Supp. 3d 1210 (D. Utah 2017) ........................................................................................ 19
Jancik v. Redbox Automated Retail, LLC, No. SAVC 13-1387-DOC (RNBx), 2014 WL 1920751 (C.D. Cal. May 14, 2014) .................. 23
Magee v. Coca-Cola Refreshments, Inc., 833 F.3d 530 (5th Cir. 2016) ...................................................................................................... 19
Marshal v. Chater, 75 F.3d 1421 (10th Cir. 1996) .................................................................................................... 10
Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006) ........................................................................... 24, 25, 26
Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ........................................................................................................ 7
Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) .................................................................................................... 22
Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988) .................................................................................................... 8, 9
Patton v. Johnson, 915 F.3d 827 (1st Cir. 2019) ........................................................................................................ 9
Reed v. Wichita County, 795 F.3d 456 ............................................................................................................................... 11
Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279 (11th Cir. 2002) ............................................................................................ 23, 24
Ridenour v. Boehringer Ingelheim Pharmaceuticals, Inc., 679 F.3d 1062 (8th Cir. 2012) .................................................................................................... 10
Rivera-Marcano v. Normeat Royal Dane Quality, 998 F.2d 34 (1st Cir. 1993) ........................................................................................................ 11
Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019) ...................................................................................................... 20
Team Letter S
v
Tauscher v. Phoenix Bd. of Realtors, Inc., 931 F.3d 959 (9th Cir. 2019) ........................................................................................................ 6
Thomas v. Arn, 474 U.S. 140 (1985) ............................................................................................................ passim
United States v. George, 971 F.2d 1113 (4th Cir. 1992) ............................................................................................ 6, 8, 15
United States v. Midgette, 478 F.3d 616 (4th Cir. 2007) ...................................................................................................... 16
United States v. Raddatz, 447 U.S. 667 (1980) ......................................................................................................... 9, 11, 14
United States v. Rosado-Cancel, 917 F.3d 66 (1st Cir. 2019) .......................................................................................................... 9
Wells Fargo Bank N.A. v. Sinnott, No. 2:07-CV-2010 WL 297830 (D. Vt. Jan. 19, 2010).............................................. 8, 12, 13, 14
Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) .............................................................................................. 22, 23
Wimmer v. Cook, 774 F.2d 68 (4th Cir. 1985) .......................................................................................................... 7
Zaid v. Smart Financial Credit Union, No. H-18-1130, 2019 WL 314732 (S.D. Tex. Jan. 24, 2019) .................................................... 20
CONSTITUTIONAL PROVISIONS U.S. Const. art. III ............................................................................................................. 12, 16, 18 STATUTES 28 U.S.C. § 636 (2020) ........................................................................................................... 10, 19 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ................................................. passim RULES Fed. R. Civ. P. 56 ...................................................................................................................... 6, 11 Fed. R. Civ. P. 72 ............................................................................................................................ 7
Team Letter S
vi
OTHER AUTHORITIES ADA Education and Reform Act of 2017, H.R. 620, 115th Cong. (2017), available at https://www.congress.gov/bill/115th-congress/house-bill/620..................................................... 21
Dep’t of Justice, ADA Title III Technical Assistance Manual Covering Public
Accommodations & Commercial § III-1.2000. www.ada.gov/taman3.html ............................ 18 Ejusdem Generis, Black’s Law Dictionary (11th ed., 2019) ........................................................ 21 H.R. Rep. No. 94-1609, p. 3 (1976) .............................................................................................. 11 H.R. Rep. 101–485 (II), 100, 1990 U.S.C.C.A.N. 303, 383 ......................................................... 19
Team Letter S
1
II. STATEMENT OF THE ISSUES
A. Did the District Court for the District of Emory adopt and apply the correct procedural
rule on whether to consider Appellee’s novel legal argument which was not submitted to
or considered by the magistrate judge?
B. Is Spicy Peach, Inc.’s website a place of public accommodation under Title III of the
Americans with Disabilities Act in whole or in part?
Team Letter S
2
III. STATEMENT OF THE FACTS
A. Factual Background
Spicy Peach, Inc. (“Spicy Peach”), an adult video rental store, opened its only store front
in 2000. R. 3. After over a decade of successful operation, Spicy Peach began to lose sales due to
the growth and popularity of online streaming services. R. 9. To stay competitive in the market,
Spicy Peach launched a website, www.SpicyPeachRentals.com, with streaming and rental services
for its customers in 2015. R. 3.
SpicyPeachRental.com offers patrons the freedom to download and stream Spicy Peach’s
videos completely online, through a Web browser or a “Smart” TV. R. 3, 10. Videos from the
website are available for 48 hours after streaming or downloading, regardless of when the user
rented the video. Id. While in store rentals are due back 48 hours after the in-store transaction. Id.
The website does not facilitate online purchases for in-store pick up. R. 10. All transactions on the
website are handled independently from those conducted in store. R. 4, 10. The website only has
two connections with the physical store front; (1) the store’s location and contact information are
listed and (2) the ability to purchase gift cards that may be used at the in-person location. Id.
Plaintiff-Appellee Anthony Fauci (“Appellee”) visited SpicyPeachRentals.com on March
15, 2019, and rented “Home Alone 2: Quarantined Together.” (“Home Alone 2”) R. 3-4, 10.
Plaintiff needs closed captioning to watch videos, due to his hearing impairment. R. 3, 9. After
discovering that “Home Alone 2” lacks closed captioning, rather than speaking with Spicy Peach
directly, Plaintiff proceeded to rent three more videos from the website that also do not have
subtitles. R. 4, 10.
All of the videos in Spicy Peach’s store, including “Home Alone 2,” provide closed
captioning. R. 4, 10-11. The website offers a larger selection of videos than the store front,
Team Letter S
3
however, the videos available for streaming do not have subtitles. R. 4, 10. The Plaintiff’s only
complaint is that the online videos do not have closed captioning. R. 11.
B. Procedural Background
Plaintiff filed his complaint pro se, without specification, on April 1, 2019. R. 11. Each
party moved for summary judgment on July 1, 2019. Neither party objected to the District Court’s
assignment of Magistrate Judge Andrew Cuomo on July 7, 2019, for a Review and
Recommendation (“R&R”). Id. Judge Cuomo set August 1, 2019, as the filing deadline. Id.
Plaintiff did not object to the deadline but instead moved the Court for additional discovery time.
Id. On August 8, 2019, Plaintiff was denied additional discovery time however, Judge Cuomo
granted a time extension until September 1, 2019, for Fauci to file his opposition to Spicy Peach’s
motion for summary judgment. Id. Coron & Varis, LLP contacted Plaintiff about possible pro
bono representation in early August, Plaintiff accepted. Id. Spicy Peach and Plaintiff timely filed
their motions by the September 1st deadline. Id.
On October 15, 2019, Judge Cuomo granted Plaintiff’s August 21, 2019, stay of
adjudication and reconsidered his request for additional discovery, and extended discovery until
January 13, 2020. R. 11-12. On January 27, 2020, Judge Cuomo issued his R&R recommending
the case’s dismissal in favor of Spicy Peach. R. 12. Plaintiff timely filed his objection to the R&R
and due to an e-filing error, it was not received until past the deadline. Id. Without knowledge of
Plaintiff’s objection, the District Court entered judgment in accordance with the R&R for Spicy
Peach. Id.
On discovery of the error, the District Court properly permitted the objection. Id. The
objection contained new legal arguments that were not presented to the magistrate. Id. The District
Team Letter S
4
Court concluded the previous judgment is vacated, and after review entered judgment for Plaintiff.
Id. Spicy Peach properly appealed to this Court. R. 1.
IV. SUMMARY OF THE ARGUMENT
The District Court erred in granting summary judgment for Appellee because the lower
court should not have permitted Appellee’s novel legal argument, (Part A.), and Spicy Peach’s
website is not a place of public accommodation under the Americans with Disabilities Act
(“ADA”), (Part B.).
A. The Federal Magistrate Act (“FMA”) was initiated to provide our district courts with a
reprieve. The District Court incorrectly interpreted the plain text of the FMA and thusly adopted a
rule that is not in congruence with the FMA. (Part A.1.) To require parties to fully litigate their
case before the assigned magistrate and waive any argument that was not presented to the
magistrate is the most efficient and just rule for this Court to establish. (Part A.2.a.)
There are several different methods proscribed within the Circuit Courts to handle the first
issue in this case. Even if this Court were to follow the balancing test used in some district courts,
the test would lean in favor of the Appellee’s waiver. (Part A.2.b) Additionally, the approach
adopted by the District Court, requiring the District Court to hear all arguments presented to it
regardless if the magistrate heard the argument, exceeds what Congress intended with the FMA
and creates injustice within our system. (Part A.2.c)
B. Second, the District Court for the District of Emory (“the lower court”) erred in the
adoption of the First and Seventh Circuit’s interpretation of the ADA finding that Spicy Peach’s
website is a place of public accommodation. (Part B.)
The lower court erroneously held that Spicy Peach’s website is a place of public
accommodation. (Part B.) There is a split among the federal circuit courts as to whether a website
Team Letter S
5
is a place of public accommodation. The split in interpretation has cause great debates throughout
the country. As explained below, the lower court’s adoption of the First and Seventh Circuit’s
interpretation of the ADA to include websites, contradicts the plain language of the statute. By
adopting this approach, the Court intruded on Congress’s constitutional authority as the law-
making body. (Part B.1.)
The correct interpretation of the ADA is that the enumerated list of public
accommodations, as set forth by the ADA, only applies to physical locations. Websites are
fundamentally different than any of the specific or general examples the ADA provides, and
therefore websites cannot be classified as a place of public accommodation because it does not fit
into any of the statutorily defined categories. The statute, as written, was meant to protect
individuals in physical places, and to expand this well-defined standard exceeds Congress’s
original intent. (Part B.2.)
If this Court believes that the nexus test is the most appropriate standard, the Appellee has
failed to allege a sufficient nexus between Spicy Peach’s website and its brick-and-mortar store.
Even if a sufficient nexus was alleged, Appellee must establish that he has been denied full and
equal enjoyment of Spicy Peach’s brick-and-mortar store. Any and all information and services
unconnected to the use and enjoyment of the physical location would be insufficient to state an
ADA claim. The record demonstrates that Spicy Peach’s lack of the closed captions on its online
videos did not deprive Appellee of the full access and equal enjoyment of Spicy Peach’s brick-
and-mortar store. (Part B.3.)
For all of the foregoing reasons, the lower court’s judgment should be reversed and this
Court should hold that Internet websites are not places of public accommodation.
Team Letter S
6
V. ARGUMENT
This case is about protecting a small business through maintaining due process to ensure
our judicial system may run as efficiently as possible and protecting our laws from manipulation.
The District Court erred when it permitted Plaintiff to present an argument that was not raised
before the assigned magistrate judge and when it granted summary judgment in favor of the
Plaintiff, holding that a website is a place of public accommodation subject to the Americans with
Disabilities Act. Appellant-Defendant, Spicy Peach, Inc. (“Spicy Peach”) requests this Court
reverse the District Court’s decision and dismiss the case in favor of Spicy Peach.
Circuit courts review a “district court’s grant of summary judgment de novo.” Tauscher v.
Phoenix Bd. of Realtors, Inc., 931 F.3d 959, 962 (9th Cir. 2019). The review is conducted by
“drawing all reasonable inferences in favor of the non-moving party.” G. v. Fay Sch., 391 F.3d 1,
12 (1st Cir. 2019) (quoting Doe v. Trs. of Bos. Coll., 892 F.3d 67, 79 (1st Cir. 2018)). A summary
judgment motion shall be granted if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE APPELLEE’S NOVEL LEGAL ARGUMENT SHOULD NOT HAVE BEEN PERMITTED TO BE HEARD BY THE DISTRICT COURT.
The District Court erred when it adopted the Fourth Circuit’s interpretation and application
of Federal Magistrate Act, 28 U.S.C. § 636(b) (2020). R. 14. (holding that once de novo review is
triggered the district court “is required to hear any new arguments in order to comply with the de
novo standard.” (citing United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992))). Spicy
Peach requests this Court to vacate the District Court’s holding, a minority approach, and adopt
the majority rule of prohibiting an argument to the district court that was not presented to the
assigned magistrate.
Team Letter S
7
1. The District Court Incorrectly Interpreted The Plain Text Of The Statute.
When a district court interprets a statute, the circuit court assesses the analysis de novo.
Fay Sch., 931 F.3d at 8. The Federal Magistrate Act permits a district court to assign dispositive
motions, without the parties’ consent, to a magistrate judge for a recommendation as to the
motion’s outcome. See § 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a). Once assigned, the magistrate
promptly conducts the hearing and files a Report & Recommendation (“R&R”). Fed. R. Civ. P.
72(a). After the R&R has been served to the parties, both parties have fourteen days to file an
objection to the R&R. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). “A judge of the court shall make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” § 636(b)(1)(C). The district court “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate[.]”
Id. (emphasis added). Additionally, the district court “may also receive further evidence or
recommit the matter to the magistrate [] with instructions.” Id. (emphasis added).
In its order, the District Court surmised that the plain language of § 636 does not
“definitively” waive a party’s right to object to a magistrate’s R&R. R. 13. Additionally, the statute
does not explicitly state a party waives its right to appeal if it does not object to the R&R. See §
636(b). However, the statute is explicit in that a party has fourteen days, after the R&R’s service,
in which it may file an objection to the magistrate’s findings to be reviewed by the district court.
§ 636(b)(1)(C). Many courts, including the Fourth Circuit, have found this to mean if a party does
not object to the R&R they do not have a right to district court review. Wimmer v. Cook, 774 F.2d
68, 72 (4th Cir. 1985); Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982) (by failing to file
an objection to the R&R, “a party thereby waives his right to appellate review of his objections.”).
Therefore, the statute does provide an avenue for waiver to exist. See Thomas v. Arn, 474 U.S.
Team Letter S
8
140, 145 (1985) (holding that the congressional policy of the Federal Magistrate Act, to improve
judicial access and efficiency, “is best served by our holding that a party shall file objections with
the district court or else waive right to appeal.”).
The pressing issue of this case is whether a party may put forth an argument to the district
court, in its objection to the R&R, that was not presented to the magistrate. R. 13. The plain text
of the Federal Magistrate Act does not permit nor deny this proposition. See § 636. Due to the
statute’s silence, further analysis is warranted.
2. There Are Multiple Approaches Among the Circuit Courts On Whether An Argument May Be Presented To The District Court On Objection Of A Magistrate’s Report & Recommendation When The Argument Was Not Raised Before The Magistrate.
In determining how this Court should decide this matter of first impression, it is appropriate
to examine how other federal courts have handled this issue. The Supreme Court of the United
States has not spoken on this issue and the collection of caselaw has developed multiple
approaches. See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st
Cir. 1988) (holding that an argument not raised before the assigned magistrate is not reviewable
under de novo review by the district judge.); see Wells Fargo Bank N.A. v. Sinnott, No.2:07-CV-
2010 WL 297830, at *4 (D. Vt. Jan. 19, 2010) (applying a six factor balancing test on when a new
argument may be heard by the district judge); see George, 971 F.2d 1113, 1118 (4th Cir. 1992)
(de novo review requires all arguments to be heard by the district judge regardless of whether the
magistrate judge reviewed the argument.).
Circuit courts have based their ability to provide a waiver in § 636 through the Supreme
Court’s decision Thomas v. Arn ̧474 U.S. 140 (1985) (holding a Court of Appeals may establish
a rule in that failure to file an objection to the R&R waives the party’s right to appeal to the district
court.). The Supreme Court reasoned “rules of procedure should promote, not defeat the ends of
Team Letter S
9
justice.” Id. Additionally, the adopted rule may not restrict the district court’s own jurisdiction. Id.
at 146. It is fully within the Circuit Court’s power to issue “procedures deemed desirable from the
viewpoint of sound judicial practice although in nowise commanded by statute or by the
Constitution.” Cupp v. Naughten, 414 U.S. 141, 146 (1973). Further, a rule that causes a party to
solely forfeit their right to appeal does not invalidate a court’s U.S. Const. art. III supervisory
power, Thomas, 474 U.S. at 147, so long as the district court retains “total control and jurisdiction”
of the entire process. United States v. Raddatz, 447 U.S. 667, 681 (1980).
a. Spicy Peach Requests This Court To Adopt The Rule Used By The First Circuit Because It Is Grounded In Supreme Court Precedent And Promotes The Purpose Of The Federal Magistrate Act As Intended By Congress.
Spicy Peach requests this Court to adopt the First Circuit’s majority rule, hold the Appellee
waived his new argument, and dismiss the case in favor of Spicy Peach.
The First Circuit looked to the purpose of the FMA Act to determine that an argument not
raised before the assigned magistrate may not be presented on appeal to the district court judge.
Paterson-Leitch, 840 F.2d at 991; see e.g. United States v. Rosado-Cancel, 917 F.3d 66, 69 (1st
Cir. 2019) (holding that defendant waived his issue preclusion claim by not raising it before the
magistrate). The rule is supported by the purpose behind the magistrate system, that is “to assume
some of the burden imposed [on the district courts] by a burgeoning caseload.” Paterson-Leitch,
840 F.2d at 991 (alteration in original). Were the court to hold otherwise, a magistrate would be
“reduced to that of a mere dress rehearse if a party were allowed to feint and weave at the initial
hearing, and save its knockout punch for the second round.” Id. Additionally, the First Circuit
explains the absence of such a rule would permit a litigant to initiate a case, present her arguments,
wait for an outcome, and, if need be, completely change her arguments before the district court.
Patton v. Johnson, 915 F.3d 827, 837 (1st Cir. 2019).
Team Letter S
10
The Fifth, Eighth, and Tenth Circuits have also adopted the same rule of the First Circuit.
Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994) (because the party failed to raise a legal
argument before the magistrate, the argument was waived.); Ridenour v. Boehringer Ingelheim
Pharmaceuticals, Inc., 679 F.3d 1062, 1066-67 (8th Cir. 2012) (the legal argument was waived
because plaintiff did not present the argument to the magistrate.); Marshal v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996) (in denying a due process argument, the court held “[i]ssues raised for the
first time in objections to the magistrate judge’s recommendations are deemed waived.”).
To adopt a rule contrary to the majority rule followed by the First Circuit, would go against
the entire purpose of the FMA and render all magistrates utterly useless. If a party could bypass
the magistrate and reach the district court simply by objecting to the R&R, it would encourage
parties to not fully litigate their cases in front of the magistrate and undermine the magistrate’s
authority. Parties taking this tactic, render the magistrate useless.
Permitting a party to present one form of its case before the magistrate and another before
the district court, would create an injustice to the opposing party, as in this case. Spicy Peach hired
attorneys and has invested time and money throughout this case’s entire process, over a year.
Requiring Spicy Peach, a small business, to invest more capital into this suit simply because
Appellee’s counsel forgot to include an argument to the magistrate, would be an abuse of the
system and inequitable to Spicy Peach.
It may very well be that Appellee’s counsel made a mistake due to its time constraint.
However, Appellee’s counsel had a month to submit a brief, which it did. Additionally, if the
argument is essential to its case, counsel could have requested more time from the court to submit
its brief, as is routine in practicing law, especially given the pro bono circumstances. Further, it is
an unfortunate occurrence, however, parties that forget an essential component of their case may
Team Letter S
11
cause the case to be dismissed, as is the nature of summary judgment. See Fed. R. Civ. P. 56; see
e.g. Rivera-Marcano v. Normeat Royal Dane Quality, 998 F.2d 34, 38-39 (1st Cir. 1993) (the court
granted summary judgment in defendant’s favor when the record failed to establish each element).
The First, Fifth, Eighth, and Tenth Circuits are in line with what the legislature intended as
well as the Supreme Court’s interpretation of the FMA. The House Report stated a de novo review
requires “the district judge in making the ultimate determination of the matter, would have to give
fresh consideration to those issues to which specific objections has been made by a party.” H.R.
Rep. No. 94-1609, p. 3 (1976). The House continued with the “use of the words ‘de novo
determination’ is not intended to require the judge to actually conduct a new hearing on contested
issues.” Id. The Supreme Court approved of this determination and stated that on dispositive
motions, “the statute calls for a de novo determination, not a de novo hearing.” Raddatz, 447 U.S.
at 674.
This language explains the legislature never intended the district court to conduct an entire
new hearing, as would be required by presenting a new issue because the magistrate did not hear
arguments nor did he rule on the issue. The district court may only review what is in the record,
which would not include an argument not presented to the magistrate. The FMA even provides a
solution if the record needs more development, § 636(b)(1) permits the district court to “receive
further evidence or recommit” the issue to the magistrate.
Further, a rule such as the First Circuit’s is in line with our appellate process. When
appealing a district court’s decision, a party may not appeal to an issue not identified in the record.
Reed v. Wichita County, 795 F.3d 456, 469 n. 8 (5th Cir. 2015) (a circuit court “will not consider
evidence or arguments that were not presented to the district court . . .”). This Court should
establish this rule to stay in harmony with the overall appellate system.
Team Letter S
12
In conclusion, this Court should adopt the majority rule articulated by the First Circuit
because it promotes judicial efficiency and properly applies the law as intended by Congress and
practiced by the Supreme Court. For theses reasons, Spicy Peach requests this Court to reverse the
District Court’s order and dismiss the case in favor of Spicy Peach.
b. Even If This Court Were To Adopt The Balancing Test Used Within The Second Circuit, The Factors Lean In Favor Of The Appellee’s Waiver.
The District Court proposes that if this Court were to use the balancing test, as proscribed
by the Second Circuit, the result would be the same as if this Court adopted a rule requiring the
District Court to hear all novel legal arguments under a de novo review regardless if the magistrate
heard the argument. R. 19. However, the Second Circuit has not officially adopted the balancing
test; only district courts within the Second Circuit have approved of the test. See Wells Fargo Bank
N.A., 2010 WL 297830 at * 2 (“[District of Vermont] predicts that the Second Circuit will adopt”
the same standard as the Eleventh Circuit, and the court provides a balancing test to aid in its
implementation.); see Bertuzzi v. Copiague Union Free Sch. Dist., 2020 U.S. Dist. LEXIS 124897
at *15 n. 2 (E.D.N.Y. July 15, 2020). If this Court deems the balancing test is the governing rule,
Spicy Peach advocates the test falls in favor of waiver and this Court should rule against Appellee
and dismiss the case in favor of Spicy Peach.
The District of Vermont’s balancing test consists of six factors:
why the argument was not previously raised, whether the law has changed since the R&R, whether the new issue is purely legal, whether the new issue is straightforward, whether the new issue’s consideration is promoted by efficiency and fairness, and whether the new issue will create manifest injustice if it is not heard.
Wells Fargo Bank N.A. 2010 WL 297830 at *4. This rule was adopted in congruence with the
Second Circuit’s standards for considering new legal arguments in motions for reconsideration
Team Letter S
13
and considering new evidence in an objection to a magistrate’s R&R. Id. The District of
Vermont believes that granting the district court this broad discretion promotes U.S. Const. art.
III and the FMA. Id. at *2.
In applying the factors to the current case, this Court should dismiss the case in Spicy
Peach’s favor. As to the first factor, the record does not reflect why the argument was left out
of Appellee’s case to the magistrate. The District Court hints that Appellee’s counsel was
rushed by the filing deadline. R. 11. However, Appellee retained counsel in early August 2019
and had close to a month to submit their brief. Id. This is an ample amount of time for an
attorney to research the case and present a complete argument. Also, it is regular practice to
have deadlines extended, especially in cases where a pro se litigant obtains counsel. Because
the Appellee does not provide a reason for the oversight, this factor leans in favor of waiver.
The second factor strongly favors Spicy Peach because there has not been a change in
the law, therefore there is no basis under this factor to present a new argument. See e.g.
Bertuzzi, 2020 U.S. Dist. LEXIS at *15 n.2 (finding in favor of waiver where a plaintiff did
not provide a reason for excluding the arguments and there had not been a change in the law.).
The third factor leans in favor of the Appellee in that this Court has determined that no
additional facts are necessary to the case’s disposition. R. 1.
Contrary to the District Court’s finding, the fourth factor weighs in favor of Spicy
Peach. Appellee’s novel legal issue has not been previously decided and may require additional
facts and analysis to determine. Thus, this factor is in favor of Spicy Peach; the District Court
even expressed concern in deciding the issue without conducting a full proceeding, R. 18,
which goes against the intent of Congress as reflected by the House Reports.
Team Letter S
14
The final two factors, in tandem, weigh in favor of Spicy Peach. Accepting the new
argument would destroy the purpose of the FMA by making the Magistrate’s position
pointless, if the parties did not have an intention to fully litigate their case before the Magistrate
there is no need for the FMA. The new argument would ruin judicial efficiency. Additionally,
no manifest injustice will occur by declining Appellee’s new argument. On the other hand, to
decide a matter of first impression will result in further litigation and may present additional
legal issues that the parties will inevitably dispute, as was the case in Wells Fargo Bank N.A.
2010 WL 297830 at *5. Consequently, the parties may not be able to fully litigate the issue
because one party is represented pro bono and the other is a small business with stretched
capital to begin with.
The Court should be cautious when considering to adopt a balancing test because of
their malleability, and also the Supreme Court’s treatment of such methods. See e.g. Grubart
v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547 (1995) (denying the use of a balancing
test because the factors “would be hard to apply, jettisoning relative predictability for the open-
ended rough-and-tumble of factors, inviting complex argument in a trial court and a virtually
inevitable appeal.”).
In conclusion, even if this Court determines that the balancing test, adopted in some
districts in the Second Circuit, is the appropriate device for this case, this Court should reverse
the District Court’s decision and rule in favor of Spicy Peach.
c. The District Court Inappropriately Adopted The Fourth Circuit’s Rule Because it Eliminates The Purpose Of The Federal Magistrate Act.
The District Court adopted the Fourth Circuit’s minority approach on the first issue of this
case. R. 13-14. Spicy Peach requests this Court to reverse the District Court’s adoption of this rule,
adopt the First Circuit’s approach, and dismiss this case in favor of Spicy Peach.
Team Letter S
15
The Fourth Circuit holds that, under de novo review, a district court shall hear any and all
arguments directed towards an issue that were objected to in the magistrate’s R&R, regardless if
the argument was raised before the magistrate. George, 971 F.2d at 1118. The Fourth Circuit
reasons to hold otherwise would be contrary to the FMA and render the district court’s decision to
constitutional challenges. Id. (explaining that U.S. Const. art. III and the FMA require the “ultimate
decision” to be left to the district court). The basis for its decision was founded in its interpretation
de novo review application, “consideration of an issue as if it had not been decided previously.”
Id.
The Fourth Circuit has expanded de novo review beyond what was intended by Congress.
The House Report of the FMA explicitly states “de novo determination” was not meant for the
district court to conduct a new hearing and would only make its own determination based on the
record built before the magistrate, and only in “specific instances” would the district court take
additional matters. Raddatz, 447 U.S. at 675 (quoting H.R. Rep., at 3). To require the district court
to hear all arguments in a party’s objection goes beyond the “specific instances” referred to directly
in Congress’s intent. The First Circuit’s rule does not contradict this provision because the rule
does not prohibit the district court from reviewing the magistrate’s order. 28 U.S.C. § 636(b)
(permitting a judge to accept, modify, or reject a magistrate’s R&R).
An argument could be made that a rule refusing to hear new arguments would prohibit
arguments such as clear error. However, the FMA permits the district court to review the
magistrate’s entire R&R de novo regardless if there is an objection. Thomas, 474 U.S. at 154. Also,
this rule limits a district court’s power under the FMA because it no longer has the power to oversee
the magistrate. Instead the magistrate is now superfluous, with no authority whatsoever. The
district court now simply has to review the case as if the magistrate did not exist.
Team Letter S
16
In the Supreme Court, it is a well settled policy “to avoid an interpretation of a federal
statute that engenders constitutional issues if a reasonable alternative interpretation poses no
constitutional question. Gomez, v. United States, 490 U.S. 858, 864 (1989). The District Court held
that the FMA conflicts with the system set up by Congress, therefore, claiming the FMA is
unconstitutional. R. 14, 15. If this Court establishes the Fourth Circuit’s rule and the District
Court’s reasoning, the constitutionality of the FMA would be called into question. This would go
against the Supreme Court’s logic in Gomez because permitting this Court to establish a district
court’s procedural jurisdiction would not raise constitutional questions in these circumstances and
is fully with in this Court’s supervisory powers. See Thomas, 474 U.S. at 145-146.
Lastly, the Fourth Circuit has contradicted itself on a party’s right to object or appeal. “[T]o
preserve for appeal an issue in a magistrate judge’s report, a party must object to the finding or
recommendation on that issue with sufficient specificity so as reasonably to alert the district court
of the true ground for the objection.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).
This contradicts the rule set out in George in that in George it does not matter if the argument or
issue was heard by the magistrate. Whereas in Midgette, for the issue to be brought on appeal, it
must have been in the magistrate’s report and specifically addressed to in the objection.
In conclusion, this Court should not adopt the Fourth Circuit’s rule because it effectively
deprives the FMA of purpose. Spicy Peach therefore requests this Court to vacate the District
Court’s order, establish the First Circuit’s respective rule and dismiss the case in favor of Spicy
Peach.
For all of the reasons stated above, Spicy Peach respectfully requests this Court to adopt
the First Circuit’s approach, prohibiting parties from raising an argument to the district court that
Team Letter S
17
was not presented before the magistrate, reverse the District Court’s order, adopt the Magistrate’s
Report & Recommendation, and dismiss the case in favor of Spicy Peach.
B. THIS COURT SHOULD REVERSE THE DISTRICT COURT’S GRANT OF SUMMARY JUDGMENT BECAUSE AS A MATTER OF LAW SPICY PEACH’S WEBSITE DOES NOT CONSTITUTE A PLACE OF PUBLIC ACCOMMODATION AND THEREFORE IS NOT SUBJECT TO THE PURVIEW OF THE ADA.
Plaintiff-Appellee’s claim against Spicy Peach fails because SpicyPeachRentals.com is not
subject to Title III of the American with Disabilities Act of 1990 (“ADA”), and therefore, the
District Court’s grant of Appellee’s Motion for Summary Judgment should be reversed. This Court
should review a district court’s interpretation and construction of a federal statute, such as the
ADA, de novo. Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 904 (9th Cir. 2019).
Under Title III of the ADA, “no individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,
or accommodations of any place of public accommodation.” 42 U.S.C. § 121812(a) (2020). In
other words, to state a claim under Title III of the ADA, Plaintiff must allege that (1) he is disabled
within the meaning of the ADA; (2) Defendant’s website is a “place of public accommodation”
subject to the ADA; and (3) Plaintiff was denied the opportunity to participate in or benefit from
Defendant’s services or was otherwise discriminated against by Defendant, by reason of Plaintiff’s
disabilities. Ariz. ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666, 670 (9th Cir.
2010); Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
Here, the only disputed requirement is whether Spicy Peach’s website is a place of public
accommodation. Title III does not specifically define “place of public accommodation,” however,
it provides that “private entities are considered public accommodations . . . if the operations of
such entities affect commerce.” 42 U.S.C. § 12181(7). Due to the differing opinions among the
Team Letter S
18
Circuits about what constitutes a place of public accommodation under the ADA, its application
to websites is vehemently deliberated in courts across the United States.
1. The Appropriate Interpretation Of The ADA Is That The ADA Only Applies To Physical Locations, And Therefore, The ADA Would Not Cover Claims Involving Websites.
Title III of the ADA only applies to physical locations; therefore, Spicy Peach is
not liable for violations attributed to SpicyPeachRentals.com. Congress listed twelve
categories of examples of places of public accommodation:
(A) an inn, hotel, motel, or other place of lodging ...; (B) a restaurant, bar, or other establishment serving food or drink; (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (D) an auditorium, convention center, lecture hall, or other place of public gathering; (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (G) a terminal, depot, or other station used for specified public transportation; (H) a museum, library, gallery, or other place of public display or collection; (I) a park, zoo, amusement park, or other place of recreation; (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
42 U.S.C. § 12181(7)(A)–(L). Many Courts and the Department of Justice (“DOJ”) have agreed
that this list is indeed “exhaustive.” Dep’t of Justice, ADA Title III Technical Assistance Manual
Covering Public Accommodations & Commercial § III-1.2000 (“Can a facility be considered a
place of public accommodation if it does not fall under one of these twelve categories? No, the 12
categories are an exhaustive list.”). www.ada.gov/taman3.html. This enumerated list is exhaustive,
Team Letter S
19
and as a matter of plain language and ordinary usage, a website does not fit into any of these
categories.
The Fifth Circuit explored legislative history and noted that this exhaustive list should be
construed liberally and “consistent with the intent of the legislation” however, when Congress and
the DOJ provided examples of liberal constructions, that limited the term to actual physical
locations. Magee v. Coca-Cola Refreshments, Inc., 833 F.3d 530, 535 (5th Cir. 2016).1 Even under
the most liberal interpretation of the statue, a website cannot fall under the definition of public
accommodation because it is not a physical location. 2
Magee is demonstrative of the appropriate application and interpretation of “places of
public accommodation” with regards to the ADA. There, a plaintiff sued Coca-Cola because the
vending machines, he encountered in a bus station and hospital allegedly, were not accessible to
individuals who were blind. Id. at 531, 536. The Fifth Circuit rejected the plaintiff’s argument that
vending machines are a “place of public accommodation” precisely because “a vending machine
is not akin to any of the listed examples” in § 12181(7) and did not fit any of the categories in the
statutory definition. Id. at 534, 536.
In Zaid v. Smart Financial Credit Union, a nearly identical claim as the present action, the
Southern District of Texas applied the Fifth Circuit’s precedent in Magee to consider whether
websites constitute places of public accommodation. No. H-18-1130, 2019 WL 314732, at *5 (S.D.
1 The House Reports provide examples of liberal constructions that that are not expressly mention under “retail sales establishment” that are only physical actual stores, such as “bookstores, video stores, stationery stores, pet stores, computer stores.” H.R. Rep. 101–485 (II), 100, 1990 U.S.C.C.A.N. 303, 383.
2 See e.g. J.H. by & through Holman v. Just for Kids, 248 F. Supp. 3d 1210, 1217 (D. Utah 2017) (holding that an educational activity program for disabled adults was not a “place of public accommodation because the plain text of Title III’s definition of “public accommodation” is restricted to “actual, physical places.”)
Team Letter S
20
Tex. Jan. 24, 2019). The Court concluded websites do not fall under Congress’s definition of places
of public accommodation because they are not a “sales or rental establishment” as enunciated in
the statute. Id. at *14-15. “While websites may be affiliated with brick-and-mortar businesses,
which are places of public accommodation that does not render the businesses’ websites
themselves places of public accommodation,” the Court concluded. Id.
This Court should follow the logic and rational applied by the Zaid Court. The lower court
found that Spicy Peach’s website could fall under three categories: “place of exhibition and
entertainment,” “place of recreation,” and “sales or rental establishment.” Websites are
fundamentally different than any of the specific or general examples listed in the statute, and do
not fit under the provided descriptions. Just as the Zaid Court, this Court should hold that a website
cannot be a place of public accommodation because they fall under none of the categories
enunciated in the statute.
Following the correct interpretation and application of the ADA as set by Magee, this Court
should hold that a website cannot be classified as a place of public accommodation because it does
not fit into any of the statutorily defined categories. As the statute is written, Title III protects
individuals in physical places, and was never intended to include individual’s engagement in
online activities or transactions. While Spicy Peach does not dispute that SpicyPeachRentals.com
connects its customers to its brick-and-mortar location, the ADA was simply not drafted with the
specific regulation of virtual spaces in mind. This proper application leads to one conclusion,
which is that a website is not a “place of public accommodation,” and the District Court erred in
finding so, and therefore their grant of Appellee’s Motion for Summary Judgment should be
reversed.
Team Letter S
21
2. The District Court Erroneously Relied On The First And Seventh Circuit’s Incorrect Interpretation Of The ADA Meaning of Public Accommodation, Going Beyond The Scope Of What Congress Intended.
The lower court erred in its adoption of the minority approach followed by the First and
Seventh Circuits. This approach is fundamentally flawed and goes beyond the scope of the statute.
The court relied on the principle of ejusedem generis, however, its application of the canon is
inapposite. Ejusdem generis, “of the same kind or class,” is a canon of construction holding that
when a general word or phrase follows a list of specifics, the general word or phrase will be
interpreted to include only items of the same class as those listed. Ejusdem Generis, Black’s Law
Dictionary (11th ed., 2019). Thus, the principle operates to limit a general term to those that are
similar to said term. In the exhaustive list provided by Congress, there is no mention of the internet,
websites, or any virtual platform and an expansion of the exhaustive list goes beyond the authority
of the court and what Congress actually intended the ADA to regulate.
Although, a potential explanation for this issue is the lack of internet when the Act was
originally enacted, this point can be nullified by the fact that Congress has, since the enactment of
the statute, met on the issue and has not decided to expand and broaden its original exhaustive list.
ADA Education and Reform Act of 2017, H.R. 620, 115th Cong. (2017), available at
https://www.congress.gov/bill/115th-congress/house-bill/620. If websites should be treated as
public accommodations and regulated under the ADA, this decision is best left to Congress. It has
been almost thirty years since the enactment of this Act, and Congress has had ample opportunity
to expand the ADA’s definition of places of public accommodations to include internet websites.
The lack of Congressional action speaks volumes on this issue.
Additionally, the Southern District of Florida has explained that an expansion of the ADA
would go beyond a Court’s authority by stating, “to fall within the scope of the ADA as presently
Team Letter S
22
drafted, a public accommodation must be a physical, concrete structure. To expand the ADA to
cover ‘virtual spaces’ would be to ‘create new rights without well-defined standards.” Access Now,
Inc. v. Southwest Airlines, Co., 277 F. Supp. 2d 1312, 1318-19 (S.D. Fla. 2002) (declining to
construe “a place of public accommodation” to include Southwest’s Internet websites). Any
interpretation that extends the prohibition beyond physical places would render this statutory text
entirely superfluous. Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998).
An interpretation of the ADA that operates as an expansion of the Act to cover claims not
explicitly intended for by Congress, would be the equivalent of the courts stepping into the place
of Congress in writing and creating laws. This is precisely what the lower court has done by
granting Appellee’s Motion for Summary Judgment. The plain language of the statute and its
regulation establishes that the ADA only applies to physical locations, and consequently the lower
court erred in granting Appellee’s motion for summary judgment against Spicy Peach as Appellee
has failed to state a claim.
3. The Only Other Appropriate Standard This Court Should Adopt Is the Nexus Test, And This Court Should Hold That Spicy Peach’s Website Does Not Have A Sufficient Nexus To Its Brick-And-Mortar Store.
If this Court, is not persuaded by the Fifth Circuit’s minority approach the next and only
logical alternative is the “nexus test” followed by the Third, Sixth, Ninth, and Eleventh Circuits.
See Ford, 145 F.3d 601; Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997); Weyer v.
Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000); Haynes v. Dunkin’ Donuts LLC
et al, 741 Fed. App’x 752 (11th Cir. 2018). The Ninth Circuit has interpreted the term “place of
public accommodation” to require “some connection between the good or service complained of
an and the actual physical place.” Earll v. eBay, Inc., 599 Fed. App’x. 695 (9th Cir. 2015); Weyer,
Team Letter S
23
198 F.3d at 1114 (9th Cir. 2000).3 Meaning to establish a successful ADA claim the plaintiff must
demonstrate that the defendant’s website impedes the plaintiff’s access “to a specific, physical,
concrete space.” See e.g., Access Now, Inc., 227 F. Supp. 2d at 13218–19 (S.D. Fla. 2002) (finding
plaintiff failed to establish a nexus between southwest.com and any restriction on the full
enjoyment of a physical concrete place of public accommodation); Jancik v. Redbox Automated
Retail, LLC, No. SACV 13-1387-DOC (RNBx), 2014 WL 1920751, at *9 (C.D. Cal. May 14,
2014) (holding a website was not a place of public accommodation because it was not a physical
place and there was not a sufficient nexus between the website and physical kiosks).
The Eleventh Circuit has held, explicitly, that Title III only applies to concrete, physical
spaces. Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1285-86 (11th Cir. 2002). Establishing
that a sufficient Title III claim requires the plaintiff to demonstrate that an intangible barrier
impedes his ability to access a physical location. Id. at 1284. In Rendon, plaintiffs were disabled
individuals who, due to their disability, were unable to register their telephone entries as a potential
contestant on a television game show. Id. at 1280–81. The Eleventh Circuit noted that the ADA
applied to the use of a telephone entry system because the system acted as a barrier to the disabled
individuals’ access to the specific physical location of the studio hosting the gameshow. Id. at
1284. The Court found a nexus because the plaintiffs were “seeking to participate on equal terms
in the phone quiz only because it [was] a necessary prerequisite of appearing on the televised
contest in which they could potentially win a large sum of money. The phone quiz is therefore a
means of access to the public accommodation, not an end in itself.” Id. at 1286. Stated in simpler
3 The Ninth Circuit has established that website-only businesses are not places of public accommodation under the ADA. See, e.g., Cullen v. Netflix, Inc., 880 F.Supp.2d 1017, 1023 (N.D. Cal. 2012), aff’d, 600 F.App’x 508, 509 (9th Cir. 2015) (holding that Netflix’s website is unconnected to any physical, concrete retail establishment and is therefore not a public accommodation under the ADA); Earll v. eBay, Inc., 599 Fed. App’x. 695 (9th Cir. 2015) (holding that eBay’s website is not a place of public accommodation under the ADA).
Team Letter S
24
terms, the phone acted as an intangible barrier that impeded the plaintiff’s access to a concrete,
physical location.
Based on the Eleventh Circuit’s reasoning in Rendon and the plain text of the ADA, a
district court in Florida, recently dismissed a claim for failure to plead a sufficient nexus between
the defendant’s store and its alleged inaccessibility to the website. Gomez v. Bang & Olufsen Am.,
Inc., No 1:16-cv-23801-JAL, 2017 WL 1957182, at *3 (S.D. Fla. Feb. 2, 2017). The Court noted:
Based on the text of the Ada, the Eleventh Circuit’s reasoning in Redon and the rationale employed by other courts who have construed the ADA in the context of commercial websites, the [c]ourt concludes that a website that is wholly unconnected to a physical location is generally not a place of public accommodation under the ADA. However, if a plaintiff alleges that a website's inaccessibility impedes the plaintiff's “access to a specific, physical, concrete space[,]” and establishes some nexus between the website and the physical place of public accommodation, the plaintiff's ADA claim can survive a motion to dismiss.
Id. at *3. Thus, in order to state a claim under Title III of the ADA, a plaintiff must allege “an
actual (not hypothetical) impediment to the use of Defendant’s retail location.” Id. at 4.
Consequently, the plaintiff in Gomez, did not allege that the website impeded his access and
enjoyment of the physical location in question and the Court dismissed the action. Id.
Even if a sufficient nexus is present, all goods and services distinct and unrelated from a
physical place would not be subject to ADA accommodations, and a plaintiff who complaint is
based off such distinction would have failed to state a claim. Nat’l Fed’n of the Blind v. Target
Corp., 452 F. Supp. 2d 946, 956 (N.D. Cal. 2006). In Nat’l Fed’n of the Blind, the Court refused
to limit an ADA claim to prevention of physical access to a place of public accommodation, but
did hold that a plaintiff failed to state a claim under Title III of the ADA when “the extent that
Target.com offers information and services unconnected to Target stores, which do not affect the
Team Letter S
25
enjoyment of goods and services offered in Target stores.” Id. The decision in Nat’l Fed’n of the
Blind, such as various circuits and district courts decisions, further emphasizes the inaccessibility
of the website impediment of “the full and equal enjoyment of goods and services offered in the
physical place.” Id.
Similar to Gomez, Appellee fails to allege a “nexus” between Spicy Peach’s brick-and-
mortar stores and its website to successfully bring the website within the purview of the ADA.
Appellee’s one and only compliant is that the video content available for rent on Spicy Peach’s
website does not provided closed captioning. However, this sole complaint is not sufficient to
allege that the lack of closed captioning on Spicy Peach’s website prohibited his ability to access
Spicy Peach’s brick-and-mortar store.
There is no question that Spicy Peach’s brick-and-mortar store, being a place of public
accommodation as explicitly defined by the ADA, follows ADA regulations. However,
SpicyPeachRental.com is separate and distinct from its brick-and-mortar store. This distinction is
evidenced by the name of the website, SpicyPeachRental.com rather than simply SpicyPeach.com.
SpicyPeachRentals.com streams a variety of videos, some of which, are not even available at the
brick-and mortar location, and vice-versa. An individual is unable to rent a video on the website
and then pick up the video up from the store. When considering how rentals occur, Spicy Peach’s
brick-and-mortar store requires an individual to return the video 48 hours after their in-store
transaction, while the website time period only commences after the customer has downloaded or
streamed it. Aside, from the ability to access the store’s information from the website and purchase
gift cards online that can be used both online and in-store, the two locations are vastly different in
form and operation. Therefore, there in an insufficient nexus, between Spicy Peach’s brick-and-
mortar store, and SpicyPeachRentals.com.
Team Letter S
26
This Court might feel compelled to draw a parallel and find that a sufficient nexus exists,
because Spicy Peach’s website provides the address of the physical location and the opportunity
to purchase gift cards online. However, the Appellee has not alleged that these services were
unavailable to him. As seen in Nat’l Fed’n of the Blind, the Appellee must establish a nexus, which
deals directly with the services complained about. Because the Plaintiff does not complain about
the inaccessibility to the services that do potentially present a nexus with Spicy Peach’s brick-and-
mortar store, this claim should fail as it does not properly state an appropriate ADA claim.
As such, Appellee did not allege that the website impeded his full use and enjoyment of
the brick-and-mortar store. Because Appellee failed to allege that the inaccessibility of
SpicyPeachRentals.com prevents him from enjoying the goods and services of Spicy Peach’s
brick-and-mortar store, Plaintiff’s claim fails.
SpicyPeachRentals.com does would not fall under the scope of the ADA because there is
and insufficient nexus to its brick-and-mortar store. Thus, Appellee failed to state a claim, and the
District Court’s grant for summary judgment should be reversed.
Team Letter S
27
VI. CONCLUSION
For the foregoing reasons, Spicy Peach respectfully requests this Court to reverse the
District Court’s grant of summary judgment for Plaintiff-Appellee and hold Spicy Peach did not
violate the Americans with Disabilities Act of 1990 because its website is not a place of public
accommodation.
.
Submitted this 21st day of September 2020. /s/ Team Letter S Team Letter S Attorneys for Appellant Spicy Peach, Inc. Emory Bar # 123456 Doe & Doe, LLP 123 Mulberry Street, Emory, USA 12345 (123) 555-1234
Recommended