Jones Clark v. Amazon.com Inc

[5] UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE [7] LAURA ABBOTT, an individual, SIMA CASE NO. 2:23-cv-1372-JNW 8 HERNANDEZ, an individual, MELISSA URBANCIC, an individual, ORDER CONSOLIDATING CASES 9 and JILL CAPPEL, an individual, individually and on behalf of all others 10 similarly situated, 11 Plaintiffs, v. [12] AMAZON.COM INC, a Delaware 13 Corporation, 14 Defendant. SUMEET K. SRIVASTAVA, CASE NO. 2:23-cv-1545-JNW 15 individually and on behalf of all others similarly situated, [16] Plaintiff, 17 v. 18 AMAZON.COM INC, a Delaware Corporation, [19] Defendant. [23] 1 HOLLY JONES CLARK, on behalf of CASE NO. 2:23-cv-1702-JNW herself and all others similarly 2 situated, 3 Plaintiff, v. 4 AMAZON.COM INC, a Delaware Corporation, [5] Defendant. [6] 7 1. INTRODUCTION 8 Three putative class actions are pending against Amazon regarding its 9 refund and exchange policy. Before the Court is a joint motion to consolidate two of 10 the cases, but because consolidation is within the broad discretion of the district 11 courts, the Court considers sua sponte whether to consolidate all three cases and [12] how litigation will proceed in its early stages.1 13 2. BACKGROUND 14 Plaintiffs Laura Abbott, Sima Hernandez, Melissa Urbancic, and Jill Cappel 15 filed a putative class action against Defendant Amazon.com, alleging Amazon 16 violated its refund and exchange policy by charging them for purchases they had 17 returned. Abbott, et al. v. Amazon.com, Inc., No. 23-cv-1372, Dkt. No 1 (Sept. 5, 18 2023). One month later, Plaintiff Sumeet Srivastava filed a putative class action 19 against Amazon over the same practice. Srivastava v. Amazon.com, Inc., No. 23-cv20 1545, Dkt. No. 1 (Oct. 5, 2023). [21] 22 1 In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987) (“Because consolidation is within the broad discretion of the district court, . . . trial courts may 23 consolidate cases sua sponte[.]”). 1 The Abbott and Srivastava parties filed a stipulated motion to consolidate 2 their cases, but they disagree about whether the plaintiffs should file a consolidated 3 complaint. See Abbott, No. 23-cv-1372, Dkt. No. 30; Srivastava, No. 23-cv-1545, Dkt. 4 No. 19. 5 While their motions were pending, Plaintiff Holly Jones Clark filed another 6 putative class action against Amazon. Jones Clark v. Amazon.com Inc., No. 23-cv7 1702, Dkt. No. 1 (Nov. 7, 2023). Clark defines her proposed class as follows: 8 All persons in the United States, who, according to the Defendant’s records, were charged by Defendant for failing to return a product that 9 was timely returned in its original condition during the six years prior to the filing of this action. [10] Id. ¶ 43. [11] Clark’s proposed class is the same as the proposed class in Abbott. Compare id. [12] with Abbott, 23-cv-1372, Dkt. No. 1 ¶ 86. In its notice of related cases, Amazon [13] describes a complete overlap of the cases: “[T]he proposed nationwide class in [the [14] Jones Clark] matter is identical to the proposed nationwide class in Abbott. And the [15] Srivastava proposed class encompass potential Abbott and Clark class members.” [16] Jones Clark, No. 23-cv-1702, Dkt. No. 9 at 2 (Nov. 9, 2023)). [17] 3. CONSOLIDATION [18] Rule 42(a) allows district courts to consolidate actions that “involve a [19] common question of law or fact.” Fed. R. Civ. P. 42(a). But the cases need not be [20] identical as a prerequisite to consolidation. See id; see also Felix v. Symantec Corp., [21] No. C 18-02902 WHA, 2018 WL 4029053 , at *2 (N.D. Cal. Aug. 23, 2018) (“FRCP [22] 42(a), however, does not require the complaints to be identical for purposes of [23] 1 consolidation.”). District courts have “broad discretion under this rule to consolidate 2 cases pending in the same district.” Investors Rsch. Co. v. U.S. Dist. Ct. for the Cent. 3 Dist. of Cal., 877 F.2d 777 , 777 (9th Cir. 1989). Courts have “broad discretion” to 4 consolidate cases and may do so sua sponte. In re Adams Apple, Inc., 829 F.2d at 5 1487. 6 The Abbott and Srivastava parties believe that consolidation is warranted 7 because the Abbott Plaintiffs’ and Srivastava’s cases involve the same defendant 8 and overlapping factual and legal issues. See Abbott, No. 23-cv-1372, Dkt. No. 30 at 9 2; Srivastava, No. 23-cv-1545, Dkt. No. 19 at 2. The Court agrees. The Clark case 10 also has the same defendant and overlapping factual and legal issues. To promote 11 judicial economy, ensure consistent results, and to streamline matters overall, the 12 Court GRANTS the parties’ motion to consolidate and consolidates the Clark case 13 sua sponte. 14 Since it’s the lower-numbered case, Abbott will constitute the main docket for 15 the consolidated action, and all future filings must be made under Case No. 23-cv- 16 1372. The case caption will be reformed as “In re: Amazon Return Policy Litigation.” 17 In consolidated cases involving complex litigation, “unified or master 18 complaint[s]” are “used often.” 9A Charles Alan Wright & Arthur R. Miller, Fed. 19 Prac. & Proc. Civ. § 2382 (3d ed.) (collecting cases). Srivastava and Amazon 20 advocate for a master complaint, but the Abbott Plaintiffs contend that a unified 21 complaint is unnecessary considering the derivative nature of Srivastava’s 22 complaint. The Abbott Plaintiffs primary objection, however, is that preparing a [23] 1 consolidated complaint will result in “needless delay” and give Amazon a potential 2 tactical advantage in the form of extra time to respond to the plaintiffs’ claims. 3 While this is a legitimate concern, it does not rise to the level of prejudice or 4 override the obvious efficiencies to be gained down the line in directing motion 5 practice and discovery toward one complaint. See Katz v. Realty Equities Corp. of 6 New York, 521 F.2d 1354, 1359 (2d Cir. 1975) (affirming district court’s order 7 requiring consolidated complaints for pretrial purposes in complex litigation suit). 8 Accordingly, the Court finds that a consolidated complaint is appropriate 9 here. But filing the consolidated complaint is the province of interim class counsel, 10 which, as discussed below, has yet to be appointed. See Pecznick v. Amazon.com, 11 Inc., No. 2:22-CV-00743-TL, 2022 WL 4483123 , at *6 (W.D. Wash. Sept. 27, 2022) 12 (ordering interim class counsel to file consolidated amended complaint). 13 4. INTERIM CLASS COUNSEL 14 Counsel for the Abbott Plaintiffs and Srivastava cannot agree upon a shared 15 role in representing the putative class and will each seek interim lead class counsel 16 status. The Court also presumes that Clark’s counsel will want a shot at this role or 17 at least a say in this determination. Given the competing attorneys vying for 18 control, the Court finds it necessary to designate interim counsel before class 19 certification to protect the interest of the putative class. Fed. R. Civ. P. 23(g)(3); see 20 Fed. R. Civ. P. 23 advisory committee’s note to 2003 amendment. The Abbott 21 Plaintiffs, Srivastava, and Clark may file cross-motions seeking appointment as 22 interim class counsel. [23] 1 5. OTHER MATTERS 2 The parties discuss various other matters in their joint motion: the timing of 3 a Rule 26(f) conference, the briefing schedule on any dispositive motion, and the 4 deadline for Amazon’s response to the plaintiff’s complaints if a consolidated 5 complaint is not ordered. See Abbott, No. 23-cv-1372, Dkt. No. 30 at 3,6; Srivastava, 6 No. 23-cv-1545, Dkt. No. 19 at 3,6. 7 But interim class counsel must be settled before the Court and the parties 8 can address these issues in an informed way. So for now, the Court STRIKES the 9 dates listed in the initial scheduling order in Abbott. See Abbott, No. 23-cv-1372, 10 Dkt. No. 19 (Oct. 11, 2023). The Court also STRIKES Amazon’s recently filed 11 Motion to Dismiss in Abbott. See Abbott, No. 23-cv-1372, Dkt. No. 31 (Nov. 8, 2023). 12 The Court will grant Amazon leave to refile its motion after the consolidated 13 complaint is filed. 14 The forthcoming consolidated complaint will become the operative complaint 15 in the consolidated action, so Amazon’s time to serve a responsive pleading will 16 begin to run once the consolidated complaint is filed. Thus, the Court DENIES 17 Srivastava and Amazon’s pending stipulated motion to extend the responsive 18 pleading deadline as moot. Srivastava, No. 23-cv-1545-JNW, Dkt. No.19. 19 6. CONCLUSION 20 In sum, the Court ORDERS as follows: 21 4.1. The cases captioned as Abbott, et al. v. Amazon.com, Inc., No. 23-cv- 22 1372-JNW, Srivastava v. Amazon.com, Inc., No. 23-cv-1545-JNW, [23] 1 Clark v. Amazon.com Inc., No. 23-cv-1702-JNW are consolidated for all 2 purposes, including trial, into a single action. 3 4.2. The docket in Case No. 23-cv-1372-JNW will be the primary docket for 4 the consolidated action, and all future filings must be made under this 5 case number. 6 4.3. The consolidated action will be recaptioned as In re: Amazon Return 7 Policy Litigation, Case No. 23-cv-1372-JNW. 8 4.4. The deadlines in the Court’s Order Regarding Initial Disclosures, Joint 9 Status Report, and Early Settlement in Abbott, et al. v. Amazon.com, 10 Inc., No. 23-cv-1372-JNW are STRICKEN. See Dkt. No. 19 (Oct. 11, 11 2023). 12 4.5. The Court directs the Clerk to file this order in Case No. 23-cv-137213 JNW, No. 23-cv-1545-JNW, and No. 23-cv-1702-JNW. 14 4.6. The Abbott Plaintiffs, Srivastava, and Clark may file cross-motions 15 seeking appointment of interim class counsel as follows: 16 • Abbott Plaintiffs, Srivastava, and Clark may each file an opening 17 brief within 14 days of this order seeking appointment as class 18 counsel. Each brief may not exceed 4,200 words. 19 • Abbott Plaintiffs, Srivastava, and Clark may file an opposition brief 20 to both or any other opening brief seeking appointment as class 21 counsel 14 days later. Each parties combined brief may not exceed 22 8,400 words. [23] 1 • Abbott Plaintiffs, Srivastava, and Clark may each submit a reply in 2 support of their original motion, which will be due seven days later. 3 Each reply may not exceed 2,100 words. 4 4.7. Interim class counsel must file a consolidated complaint within 30 days 5 of the Court’s order appointing interim class counsel. 6 4.8. Amazon must serve its responsive pleading within 21 days after 7 Plaintiffs file their consolidated complaint. To the extent that Amazon 8 files a dispositive motion, the parties may propose an alternative 9 briefing schedule. 10 4.9. The stipulated motion to extend the responsive pleading deadline in 11 Srivastava v. Amazon.com, Inc., No. 23-cv-1545-JNW is DENIED as 12 moot. Dkt. No. 19. 13 4.10. Amazon’s Motion to Dismiss Abbott, et al. v. Amazon.com, Inc., No. 2314 cv-1372 is STRICKEN without prejudice. Dkt. No. 31. 15 Dated this 13th day of November, 2023. [16] A 17 Jamal N. Whitehead United States District Judge