De Coster v. Amazon.com Inc ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 10 ELIZABETH DE COSTER et al., on behalf of Case No. C21-693RSM themselves and all others similarly situated, 11 ORDER DENYING MOTION TO Plaintiffs, CONSOLIDATE RELATED ACTIONS 12 13 v. 14 AMAZON.COM, INC., a Delaware corporation, 15 16 Defendant. 17 This matter comes before the Court on Plaintiffs’ Motion to Consolidate Related 18 19 Actions. Dkt. #22. The Motion is unopposed in this case, but Plaintiffs in the related action 20 C21-996-RSM have filed an opposition brief. See Case No. 2:21-cv-996-RSM, Dkt. #13. 21 Federal Rule of Civil Procedure 42(a) provides this Court with broad discretion to 22 consolidate cases that involve common questions of law and fact. See Pierce v. County of 23 Orange, 526 F.3d 1190, 1203 (9th Cir. 2008). In determining whether consolidation is 24 25 warranted, courts look to the existence of common questions of law or fact and weigh the 26 interests of judicial economy against any delay or prejudice that might result. See In re Adams 27 Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987). The moving party has the burden of showing 28 that consolidation is appropriate. EEOC v. Lowe’s, 2008 U.S. Dist. LEXIS 135184 at *6 (W.D. 1 2 Wash. Aug. 14, 2008). 3 The Plaintiffs in this action seek to consolidate with Case No. C21-996RSM, which has 4 already consolidated with Case No. C21-1009RSM. The two remaining cases are class actions 5 with consumer plaintiffs alleging antitrust violations by Amazon, the internet retailer. There is 6 thus an overlap of law and the general type of facts one would expect in an antitrust case. 7 8 However, a close review of the pleadings reveals a distinction. Plaintiffs in the instant case 9 allege that Amazon is violating antitrust law by requiring sellers to agree to a “Most Favored 10 Nation” policy1 in order to get placed in the “Buy Box” where consumers do most of their 11 shopping; Plaintiffs in C21-996 allege that Amazon is violating antitrust law by requiring 12 13 sellers to agree to use Amazon Fulfilment Services2 to get placed in the same “Buy Box.” 14 These are different accusations. Amazon is huge; it may get accused of violating antitrust law 15 many times a year, in many different ways, and not all of these actions can or should be 16 consolidated. It is not clear that judicial economy would be served by throwing everything into 17 a single case. 18 19 Plaintiffs in the instant case point out that their Consolidated Amended Complaint does 20 mention Amazon Fulfilment Services, which it refers to as Fulfillment by Amazon (“FBA”). 21 This is true. However, the pleading only refers to it in two paragraphs to further highlight 22 Amazon’s control over sellers, and only in the factual background. See Dkt. #20 at 20–21. The 23 Plaintiffs in the instant case do not tie this discussion to their causes of action, which 24 25 exclusively discuss the Most Favored Nation policy. 26 27 1 Amazon’s MFN policies allegedly “forbid third-party merchants from listing their goods anywhere else on the internet at prices lower than their Amazon list prices.” Dkt. #20 at 8. 28 2 Amazon Fulfillment Services are “a logistics service that provides warehousing, packing, and shipping to third- party sellers.” Case No. C21-996, Dkt. #1 at 8. The Court finds that Plaintiffs in the instant case have failed to meet their burden of 1 2 demonstrating enough common questions of fact. The Court further agrees with Plaintiffs in 3 C21-996 that they would be prejudiced by consolidation given the disagreements between 4 Plaintiffs’ counsel in both cases and the apparent effort by Plaintiffs’ counsel in this case to 5 prioritize its existing allegations over those of the case that it is attempting to consolidate with. 6 See Case No. C21-996, Dkt. #13 at 7–9. 7 8 Given all of the above, and after consideration of the relevant briefing and the 9 remainder of the records in these cases, the Court finds and ORDERS that Plaintiffs’ Motion to 10 Consolidate Related Actions, Dkt. #22, is DENIED. The Court will not enter an order 11 consolidating these cases for discovery purposes (as suggested by Plaintiffs’ counsel in C21- 12 13 996) absent further agreement from the parties. 14 15 DATED this 19th day of January, 2022. 16 17 18 A 19 RICARDO S. MARTINEZ 20 CHIEF UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28