Joseph v. Amazon.com, Inc. et al

Filing 86

ORDER denying Plaintiff's 43 Motion for Summary Judgment; finding as moot Plaintiff's 53 Motion for Order; finding as moot Plaintiff's 57 Motion for Order; granting Defendant's 60 Motion for Summary Judgment; finding as moot Defendant's 70 Motion for Protective Order by Judge John C Coughenour.(TM)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RHAWN JOSEPH,

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CASE NO. C13-1656-JCC
Plaintiff,

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ORDER

v.
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AMAZON.COM, INC., et al.,
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Defendants.
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This matter comes before the Court on Plaintiff‘s motion for partial summary judgment

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16 (Dkt. No. 43) and Defendants‘ cross-motion for judgment on the pleadings and/or summary
17 judgment (Dkt. No. 60). Having thoroughly considered the parties‘ briefing and the relevant
18 record, the Court hereby DENIES Plaintiff‘s motion for partial summary judgment and
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19 GRANTS Defendants‘ motion for judgment on the pleadings and/or summary judgment.

20 I.

BACKGROUND

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A.

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Dr. Rhawn Joseph, Ph.D., proceeding pro se, brings this action against Amazon.com, Inc.

Amazon’s Business Practices

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Plaintiff did not request oral argument on his summary judgment motion, though Defendants did request
oral argument on their cross motion. The Court denies Defendants‘ request because it grants Defendants‘ motion and
finds that oral argument would not be beneficial in the resolution of this case. See Local Rules W.D. Wash. CR
7(b)(4) (all motions to be decided without oral argument unless argument is requested in the caption of the motion
and the Court grants the request); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (―[A] district court can
decide [a summary judgment motion] without oral argument if the parties can submit their papers to the court.‖).

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1 (―Amazon‖) and its CEO Jeff Bezos. Plaintiff brings a federal antitrust claim based on an
2 allegedly unlawful ―tying‖ arrangement, as well as claims for ―libel/defamation/slander/trade
3 libel‖; ―malice, oppression, fraud‖; ―personal injury‖; and breach of contract. (Dkt. No. 1 at ¶¶
4 52–91.) Dr. Joseph is an ―author and science book publisher‖ who has sold his books online
5 through Amazon‘s website. He relies on ―print on demand‖ (―POD‖) technology to print the
6 books he sells. POD technology refers to the technology that enables books to be printed only
7 when an order is received from a customer or retail bookseller, rather than being pre-printed in
8 bulk and later sold from an inventory of hard copies. Plaintiff explains that POD books ―are a
9 cost effective means of book production as there is no need to maintain storage facilities or large
10 (expensive) inventories and books can be printed when orders are received.‖ (Id. at ¶ 4.) Plaintiff
11 ―relies on a company known as Lightning Source to print [his] POD books.‖ (Id. at ¶ 3.)
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Amazon operates the website www.amazon.com, through which consumers may

13 purchase books and other items. Jeff Bezos is Amazon‘s founder and CEO. Amazon offers
14 publishers and authors multiple options for selling books on its website. Under the ―Amazon
15 Advantage‖ program, authors and publishers may have their books sold directly from
16 Amazon.com to the customer. When sellers utilize this program, consumers give their credit card
17 and shipping information to Amazon when they want to buy the book. Amazon then purchases
18 the book at a price below the retail price from the publisher/author and re-sells it to the end19 customer at a marked-up retail price. To participate, sellers must provide hard copies of their
20 books directly to Amazon before the sale or, according to Plaintiff, have their books printed
21 using Amazon‘s POD service, BookSurge.2 Once a customer buys the book, Amazon will either
22 ship the available copy directly from its fulfillment center or have copies printed using its
23 BookSurge POD service and shipped to the consumer. (Dkt. Nos. 1 at ¶ 18; 60 at 8.) The
24 company has publically stated that publishers may utilize any POD printer they wish in
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ORDER
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BookSurge has since become known as CreateSpace. The Court refers to BookSurge in this Order.

1 providing books for fulfillment purposes, so long as a limited number of hard copies of the books
2 are provided to Amazon beforehand. Amazon has explained that the reason for this
3 requirement—that a publisher either use its in-house POD service or provide a limited number of
4 hard copies for each book title when using its own POD printer—is to enable Amazon to fulfill
5 orders in the most efficient manner. (See Dkt. No. 66 at 36.)
6

Publishers and authors may also utilize the ―Amazon Marketplace,‖ through which

7 booksellers can sell books directly to consumers on Amazon‘s website. On this portion of
8 Amazon‘s website, consumers provide shipping and billing information directly to the third9 party seller, who then either ships the books to the consumer or has their POD printer-of-choice
10 print the book and ship it to the consumer. (Id. at ¶ 20.) Even though the sale occurs between the
11 third-party seller and the consumer, Amazon takes a percentage of the sale price as a charge for
12 providing the platform that linked the buyer and seller. (Id.) Additionally, Amazon offers the
13 ―Associates‖ program, which enables website owners to include links from their sites to
14 Amazon‘s website. ―Associates‖ earn money each time a customer clicks through from the
15 associate‘s website and makes a qualifying purchase on Amazon.com, subject to certain
16 contractual definitions and limitations. (Dkt. Nos. 60 at 8; 63, Exs. A and B.) Finally, Amazon‘s
17 website allows users to post reviews of products that they have purchased, subject to the
18 limitations established in Amazon‘s published policies. (Dkt. No. 62, Ex. A.) According to
19 Amazon, it does not create or direct the content of any reviews, though it does require that the
20 reviews comply with its review policies. (Id. at ¶ 3.) It is undisputed that Dr. Joseph has entered
21 into agreements with Amazon to participate in its Advantage, Marketplace, and Associates
22 programs.
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B.

Procedural History

24

Dr. Joseph filed this putative class action lawsuit on December 10, 2012 in the Northern

25 District of California. His Complaint revolves primarily around his ―tying‖ claim under federal
26 antitrust law. He alleges that Amazon unlawfully refuses to ―directly‖ sell books printed by a

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1 POD printer other than its own subsidiary, BookSurge, which he believes to constitute an
2 unlawful tying arrangement under § 1 of the Sherman Act. Plaintiff also alleges that Amazon
3 regularly ―publishes and copyrights defamatory and libelous statements about competitors
4 including Plaintiff.‖ (Dkt. No. 1 at ¶ 21.) He argues in his Complaint and briefing that Amazon is
5 responsible for reviews that he believes to be defamatory, though the allegations are scattered
6 and unclear. Finally, Plaintiff asserts that Amazon and Mr. Bezos have breached a contract and
7 engaged in a ―bait and switch‖ scheme to defraud him by failing to pay him the appropriate
8 advertising referral fees due under the Amazon Associates program. (Id. at ¶ 30.) Instead, he
9 alleges, Amazon removes the special ―tracking tag‖ once users are directed to its website and
10 purchase other products. (Id.)
11

After Mr. Joseph brought suit, Amazon moved to dismiss or transfer the case to the

12 Western District of Washington.3 The motion was granted in part and the case was transferred to
13 this district in late 2013. (See Dkt. No. 35.) Before this Court could hold a status conference and
14 establish a case management schedule, Plaintiff filed a motion for summary judgment on his
15 federal antitrust and state-law ―defamation/libel/slander/trade libel‖ claims. (Dkt. No. 43.)
16 Plaintiff also submitted a number of additional filings, including a motion for an order
17 authorizing the deposition of Mr. Bezos (Dkt. No. 53), a deposition notice to the same effect
18 (Dkt. No. 54), a ―discovery plan‖ (Dkt. No. 55), a ―status report‖ (Dkt. No. 56), a motion and
19 petition to authorize Plaintiff to proceed with discovery (Dkt. No. 57), and a Reply to
20 Defendants‘ Answer (Dkt. No. 58). Defendants filed a cross-motion and response to Plaintiff‘s
21 summary judgment motion (Dkt. No. 60), as well as a cross-motion for a protective order
22 prohibiting the deposition of Jeff Bezos. (Dkt. No. 70.) The Court vacated the pending status
23 conference and stayed any further motion practice (unless the requesting party obtained leave of
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3

This is not the first time Dr. Joseph has sued Amazon and Mr. Bezos. He brought similar claims against
them in 2001, but a Northern District of California judge dismissed that lawsuit based on a forum selection clause.
University Press, Calif. v. Amazon.com, Case No. C01-20902 (N.D. Cal. Nov. 29, 2001). The same forum selection
clause resulted in this case being transferred from the Northern District of California to this district.

ORDER
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1 Court to file a motion) while the pending motions were taken under consideration. (Dkt. No. 77.)
2 Plaintiff has nonetheless continued to file ―status reports,‖ many of which directly accuse the
3 Court of bias even though the Court has not yet rendered any ruling on the motions in this case.
4 (See Dkt. No. 79, 81, 84, 85.) Upon review, the Court concludes that Defendants‘ motion should
5 be granted and this lawsuit dismissed.
6 II.

DISCUSSION

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A.

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Plaintiff moves for summary judgment and Defendants move for judgment on the

Legal Standard

9 pleadings and/or summary judgment. Under Federal Rule of Civil Procedure 12(c), ―[a]fter the
10 pleadings are closed—but early enough not to delay trial—a party may move for judgment on
11 the pleadings.‖ Fed. R. Civ. P. 12(c). Judgment on the pleadings ―is properly granted when,
12 taking all the allegations in the pleadings as true, a party is entitled to judgment as a matter of
13 law.‖ Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011). The court evaluates a
14 Rule 12(c) motion for judgment on the pleadings under the same standard as a Rule 12(b)(6)
15 motion to dismiss. Dworkin v. Hustler Magazine Inc. ., 867 F.2d 1188, 1192 (9th Cir. 1989).
16 When ruling on a motion to dismiss, a court may consider the pleadings, documents attached to
17 the pleadings, documents incorporated by reference in the pleadings, and matters of judicial
18 notice. United States v. Ritchie, 342 F.3d 903, 907–908 (9th Cir. 2003).
19

The standard governing summary judgment motions is different. Pursuant to Rule 56 of

20 the Federal Rules of Civil Procedure, ―[t]he court shall grant summary judgment if the movant
21 shows that there is no genuine dispute as to any material fact and the movant is entitled to
22 judgment as a matter of law.‖ Fed. R. Civ. P. 56(a). In making such a determination, the Court
23 must view the facts and inferences to be drawn therefrom in the light most favorable to the
24 nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50 (1986), and may
25 consider extrinsic materials so long as they would be admissible in evidence. See Fed. R. Civ. P.
26 56(c). Once a motion for summary judgment is properly made and supported, the opposing party

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1 ―must come forward with specific facts showing that there is a genuine issue for trial.‖
2 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Material facts are
3 those that may affect the outcome of the case, and a dispute about a material fact is genuine if
4 there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party.
5 Anderson, 477 U.S. at 248–49. Ultimately, summary judgment is appropriate only against a party
6 who ―fails to make a showing sufficient to establish the existence of an element essential to that
7 party‘s case, and on which that party will bear the burden of proof at trial.‖ Celotex Corp. v.
8 Catrett, 477 U.S. 317, 324 (1986).
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B.

Plaintiff’s Class Action Allegations

The Court first addresses the fact that Dr. Joseph brings this lawsuit as a putative class

11 action on behalf of ―all [print on demand] authors, publishers, and publishing companies in the
12 United States who have had books listed for sale in the Amazon Bookstore, at any time from
13 February 10, 2008 through the conclusion of trial of this matter . . .‖ (Dkt. No. 1 at ¶ 41.) As a
14 pro se litigant, Dr. Joseph may not represent other individuals in a class action lawsuit. See
15 Simon v. Hartford Life, Inc., 546 F.3d 661, 663 (9th Cir. 2008) (―It is well established that the
16 privilege to represent oneself pro se provided by [28 U.S.C.] § 1654 is personal to the litigant
17 and does not extend to other parties or entities.‖); see, e.g., Keyter v. Boeing, Inc., Case No. C1318 0982, 2013 WL 4458975, at *1 (W.D. Wash. Aug. 16, 2013) (precluding pro se plaintiff from
19 representing putative class). Accordingly, the Court dismisses Dr. Joseph‘s Complaint insofar as
20 he purports to represent any individual or entity other than himself.
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C.

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Plaintiff’s “Tying” Claim Under 15 U.S.C. § 1
1.

Plaintiff’s Antitrust Claim is Untimely

Defendants argue first that Plaintiff‘s tying claim is untimely. Private antitrust actions are

24 subject to a four-year statute of limitations from the date the cause of action accrues under 15
25 U.S.C. § 15b, Samsung Electronics Co., Ltd., v. Panasonic Corp., 747 F.3d 1199, 1202 (9th Cir.
26 2014), and ―a cause of action accrues . . . when a defendant commits an act that injures a

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1 plaintiff‘s business.‖ Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971).
2 There is an exception to this limitations rule for continuing violations. Samsung, 747 F.3d at
3 1202. ―To state a continuing violation of the antitrust laws in the Ninth Circuit, a plaintiff must
4 allege that a defendant completed an overt act during the limitations period that meets two
5 criteria: ‗1) It must be a new and independent act that is not merely a reaffirmation of a previous
6 act; and 2) it must inflict new and accumulating injury on the plaintiff.‘‖ Id. (quoting Pace
7 Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 238 (9th Cir. 1987)). In the context of an
8 allegedly unlawful tying arrangement, the cause of action first accrues when the arrangement
9 was executed or became effective. See Witt Co. v. RISO, Inc., 948 F.Supp.2d 1227, 1236 (D. Or.
10 2013); Rite Aid Corp. v. Am. Exp. Travel Related Servs. Co., Ins., 708 F.Supp.2d 257, 265
11 (E.D.N.Y. 2010). ―To restart the statute of limitations in a tying situation, [a plaintiff] must
12 show that [a defendant] had the ability [to] and actually did enforce the tie during the limitations
13 period.‖ Eichman v. Fotomat, 880 F.2d 149, 160 (9th Cir. 1989) (citation omitted).
14

Dr. Joseph‘s claim is untimely and Amazon is entitled to judgment on the pleadings.

15 Plaintiff‘s tying claim is premised solely upon Amazon‘s allegedly unlawful policy of requiring
16 publishers who want to use its service to either (a) use Amazon‘s own POD service, BookSurge;
17 (b) enroll in the Amazon Advantage Program and provide approximately five hard copies of each
18 book title to be sold if the publisher wishes to have Amazon directly sell the books on their
19 behalf; or (c) sell the books directly to consumers through Amazon‘s Marketplace program. As
20 Plaintiff alleges and continuously argues, Amazon made this policy publicly effective no later
21 than March 31, 2008, when it published an ―Open Letter to Interested Parties‖ about its new
22 POD-policy.4 (See Dkt. No. 66, Ex. A.) In Plaintiff‘s Complaint, he refers primarily to a single
23 document that appears to be correspondence or an open letter from Amazon—the March 31,
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4

To the extent the Court concludes that judgment on the pleadings is appropriate, consideration of the
―Open Letter‖ is permissible because Dr. Joseph‘s Complaint expressly references and relies upon that document.
(See Dkt. No. 1 at ¶ 9.)

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1 2008 Open Letter—and repeatedly refers only to that letter when discussing his tying claim.5
2 (See Dkt. No. 66, Ex. A.) Because Dr. Joseph‘s claim appears to be based solely on Amazon‘s
3 2008 Open Letter regarding its POD policy, Plaintiff had until March 31, 2012 to file a
4 complaint based on that allegedly unlawful tying arrangement. Cf. Rite Aid Corp. v. Am. Exp.
5 Travel Related Servs. Co., Ins., 708 F.Supp.2d 257, 265 (E.D.N.Y. 2010) (―Under Zenith’s
6 general accrual rule, any section one cause of action arising out [the defendant]‘s merchant
7 agreements accrued on the date that Plaintiffs‘ merchant agreements took effect.‖). He failed to
8 do so, as this lawsuit was filed on December 10, 2012. (See Dkt. No. 1); see, e.g., Eichman, 880
9 F.2d at 160 (statute of limitations barred tying claim when lease contract containing alleged
10 illegal tying provision was entered into outside the limitations period); Aurora Enters., Inc. v.
11 Nat’l Broad. Co., 688 F.2d 689, 693 (9th Cir. 1982) (statute of limitations barred plaintiff‘s
12 claim because the contract containing the alleged illegal tying provision was entered into more
13 than four years before the complaint was filed).
14

Construing Plaintiff‘s pleadings and argument broadly, the Court also considers whether

15 Dr. Joseph alleges or otherwise proves a timely continuing violation that would support his
16 claim. He does not. There must be a ―new and independent act that is not merely a reaffirmation
17 of a previous act,‖ and ―[that act] must inflict new and accumulating injury on the plaintiff‖ in
18 order for the continuing violation exception to apply. Pace Indus., 813 F.2d at 237–38. Here, Mr.
19 Joseph asserts in passing that Amazon sent him additional letters similar to the 2008 letter
20 reiterating its POD-policy, but failed to support those assertions with any actual evidence. But
21 even more significantly, Dr. Joseph has not alleged, argued, or otherwise provided evidence to
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5

While the Court cannot be certain, it appears that Dr. Joseph believes he is automatically entitled to
prevail in this lawsuit because another independent book publisher sued Amazon in 2009 and defeated an initial
motion to dismiss. That case, Booklocker.com v. Amazon, settled thereafter and never made it to the later stages of
litigation. What Dr. Joseph fails to grasp, among other things, is that that lawsuit was brought in 2009, merely one
year after Amazon initiated its POD policy. And more fundamentally, he appears not to understand that the plaintiff
in that lawsuit sufficiently pleading an unlawful tying arrangement does not mean, therefore, that Dr. Joseph‘s
pleadings—which the Court finds extremely difficult to follow—either state a claim or otherwise alleges a timely
claim.

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1 demonstrate that he actually succumbed to Amazon‘s tying arrangement and used BookSurge‘s
2 POD service in order to maintain access to its direct-sales channel—i.e., he nowhere alleges or
3 proves that Amazon has enforced the alleged tying arrangement against him within the
4 limitations period. See Eichman, 880 F.2d at 160 (plaintiff must show that defendant could and
5 did enforce tie against him within the limitations period). Consistent with the absence of such
6 allegations, Dr. Joseph admitted in his own briefing that (i) he ―stopped selling or shipping or
7 providing non-POD hardcover and softcover books to Amazon[] or its programs around 2008[,]‖
8 and (ii) he ―has never sold, shipped, or provided a POD book to Amazon.‖ (Dkt. No. 66 at 8.)
9 Plaintiff has accordingly failed to allege any continuing violation sufficient to sustain this
10 otherwise untimely action. Amazon is entitled to judgment on the pleadings on this claim.6
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2.

Amazon’s Allegedly Unlawful Tying Arrangement

Even if Dr. Joseph‘s claim was timely, he has failed to properly plead or otherwise

13 support his claim for an unlawful tying violation. ―A tying arrangement is a device used by a
14 seller with market power in one product market to extend its market power to a distinct product
15 market.‖ Rick-Mik Enter, Inc. v. Equilon Enter. LLC, 532 F.3d 963, 971 (9th Cir. 2008) (quoting
16 Cascade Health Solutions v. PeaceHealth, 515 F.3d 883, 912 (9th Cir. 2008)). ―To accomplish
17 this objective, the seller conditions the sale of one product (the tying product) on the buyer‘s
18 purchase of a second product (the tied product).‖ Id. (citations omitted). ―Tying arrangements are
19 forbidden on the theory that, if the seller has market power over the tying product, the seller can
20 leverage this market power through tying arrangements to exclude other sellers of the tied
21 product.‖ Id. As the Ninth Circuit has made clear, a plaintiff must prove the following for a tying
22 claim to suffer per se condemnation: ―(1) that the defendant tied together the sale of two distinct
23 products or services; (2) that the defendant possesses enough economic power in the tying
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Even assuming Plaintiff‘s Complaint sufficiently alleged a timely claim, he has offered no evidence to

26 demonstrate that the alleged tying agreement was enforced against him within the limitations period. Summary
judgment in Defendants‘ favor would accordingly be appropriate.

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1 product market to coerce its customers into purchasing the tied product; and (3) that the tying
2 arrangement affects a ‗not insubstantial volume of commerce‘ in the tied product market.‖ Id. at
3 913. Dr. Joseph‘s allegations and summary judgment briefing is woefully inadequate to warrant
4 a continuation of this lawsuit.
5

First, Dr. Joseph neither alleges nor offers evidence to prove the existence of a

6 sufficiently coercive tying arrangement. ―Essential to the second element of a tying claim is
7 proof that the seller coerced a buyer to purchase the tied product. A plaintiff must present
8 evidence that the defendant went beyond persuasion and coerced or forced its customer to buy
9 the tied product in order to obtain the tying product.‖ Paladin Assoc. v. Montana Power Co., 328
10 F.3d 1145, 1159 (9th Cir. 2003) (emphasis in original and citations omitted); see Jefferson
11 Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12 (1984) (―[T]he essential characteristic of an
12 invalid tying arrangement lies in the seller‘s exploitation of its control over the tying product to
13 force the buyer into the purchase of a tied product that the buyer either did not want at all, or
14 might have preferred to purchase elsewhere on different terms.‖).
15

Here, Dr. Joseph expresses great dissatisfaction with Amazon‘s business practices in the

16 abstract, but as noted above, he nowhere alleges or offers evidence to prove that he was actually
17 forced to purchase BookSurge‘s POD service. This shortcoming is fatal, as courts and
18 commentators have long recognized that ―[a]ctual coercion by the seller that in fact forces the
19 buyer to purchase the tied product is an indispensible element of a tying violation.‖ Unijax, Inc.
20 v. Champion Int'l, Inc., 683 F.2d 678, 685 (2nd Cir. 1982); see Famous Brands, Inc. v. David
21 Sherman Corp., 814 F.2d 517, 523 (8th Cir. 1987); Areeda, Elhauge, and Hovenkamp, Antitrust
22 Law, §§ 1753a, 1753f (2d ed. 2004) (explaining that ―an express tying contract that is proposed
23 to buyers but rejected by them does not constitute a tie‖ and that ―the mere termination or
24 rejection of a dealer or customer who refuses to comply with a tie‖ is not unlawful tying). Here,
25 Plaintiff repeatedly asserts that Amazon refused to sell his books directly, but this alone is
26 insufficient to sustain his claim. And as noted above, Dr. Joseph admitted in his own briefing

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1 that the alleged tie was never actually enforced against him when he stated that (i) he ―stopped
2 selling or shipping or providing non-POD hardcover and softcover books to Amazon[] or its
3 programs around 2008[,]‖ and (ii) he ―has never sold, shipped, or provided a POD book to
4 Amazon.‖ (Dkt. No. 66 at 8.) Regardless of how Dr. Joseph may feel about Amazon‘s practices
5 as a general matter or the fact that he rejected Amazon‘s new policy and refused to use
6 BookSurge‘s POD service, the fact that he never bought BookSurge‘s POD service to get his
7 books on Amazon is fatal to his claim. Strawflower Electronics, Inc. v. Radioshack Corp., Case
8 No. C05-0747, 2005 WL 2290314, at *8 (N.D. Cal. Sept. 20, 2005) (recognizing that ―no tying
9 claim can be stated where the plaintiff refused to purchase the tied product‖). Amazon is
10 accordingly entitled to judgment on the pleadings on Dr. Joseph‘s antitrust claim.
11

Even if that flaw was not dispositive, Dr. Joseph‘s Complaint itself alleges that Amazon

12 does not actually condition the use of its services—i.e., selling books on its website, directly or
13 otherwise—upon the use of BookSurge POD services. This fact is also sufficient to end
14 Plaintiff‘s bid against Amazon based on the pleadings.7 The March 31, 2008 letter that Plaintiff
15 references in his Complaint as the basis for his tying claim demonstrates that booksellers can
16 have their books sold on Amazon ―directly‖ by either (a) using the BookSurge POD service; or
17 (b) ―us[ing] a POD printer for all your units[,] in [which] case, [Amazon] ask[s] that
18 [booksellers] pre-produce a small number of copies of each title (typically five copies), and send
19 those to [Amazon] in advance‖ so that Amazon can inventory those titles and ship them
20 immediately upon their sale. (Dkt. Nos. 1 at ¶ 9; 66 at 36.) Booksellers are also free to (i) have
21 Amazon sell their books directly by providing hard copies to Amazon beforehand via the
22 Amazon Advantage program or (ii) use the Amazon Marketplace to sell their books directly to
23 consumers using a POD printer of their choice (or no POD printer at all). Because the essence of
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7

To the extent the Court assumed the sufficiency of Plaintiff‘s allegations, Defendant would be entitled to
summary judgment, as Dr. Joseph has failed to offer any actual evidence in the course of summary judgment
briefing beyond the same March 31, 2008 letter to support his claim.

ORDER
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1 a tying claim is a defendant‘s use of market power in the tying product‘s market to force the
2 purchase of a second product on the condition that the tying product will otherwise be withheld,
3 Plaintiff‘s claim falls outside the scope of an unlawful tying arrangement. Dr. Joseph has not
4 alleged that Amazon required booksellers to purchase the BookSurge POD service by refusing to
5 sell access to its bookselling services unless those entities also used BookSurge.8 See Paladin,
6 328 F.3d at 1159 (―mere sales pressure‖ does not constitute coercion).
7

D.

8
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16

Plaintiff’s State-Law Defamation and Libel Claims are Barred by Section
230 of the CDA

The Court next addresses Plaintiff‘s ―libel/defamation/slander/trade libel‖ claim. As the
Court understands the Complaint, Plaintiff alleges that Amazon unlawfully published defamatory
anonymous reviews of Plaintiff‘s books (and Plaintiff) on its website. (Dkt. No. 1 at ¶¶ 58–82.)
Amazon argues in its opposition and cross-motion that Dr. Joseph‘s claim fails as a matter of law
because (i) Amazon is protected from liability under the Communications Decency Act of 1996,
47 U.S.C. § 230, for statements made by reviewers on its website; and (2) the alleged statements
are all matters of opinion and are thus not actionable. (Dkt. No. 60 at 18.) Upon review, the
Court agrees that Section 230 immunity bars Dr. Joseph‘s claim against Defendants. Amazon

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8

At most, Plaintiff has highlighted the fact that Amazon offers a type of ―bundled discount‖ or incentive to
booksellers who use its BookSurge service rather than other POD services. It does so, effectively, by allowing
booksellers to have Amazon re-sell their books without having to provide five hard copies to Amazon up front if
they use the BookSurge POD service, whereas the use of another POD service requires those hard copies to be sent
to Amazon before the books will be listed. As the Ninth Circuit and other courts have explained, ―[s]tanding alone,
the fact that a customer would end up paying higher prices to purchase the tied products separately‖ is not sufficient
to demonstrate coercion. Cascade Health Solutions v. PeaceHealth, 515 F.3d 883, 915 (9th Cir. 2008) (citation
omitted)). To sufficiently demonstrate ―coercion‖ in these circumstances, a plaintiff must provide evidence to show
that only a ―trivial proportion‖ of sales are made separately; if proven, the fact that the two products are rarely, if
ever, sold separately ―shows that the package discount is as effective as an outright refusal to sell [the tying product]
separately.‖ Cascade Health Solutions, 515 F.3d at 915 (citing 10 Areeda & Hovenkamp, supra, ¶ 1758b at 327 (2d
ed. 2004)). Here, Dr. Joseph neither alleges nor offers evidence to demonstrate that Amazon‘s book sales service
and BookSurge POD service are only sold separately in ―trivial‖ amounts. Because he has done no more than allege
and offer evidence that it is somewhat cheaper to use Amazon‘s bookstore if the publisher also uses BookSurge to
print POD titles, his claim necessarily fails. See, e.g., Aerotec Intern., Inc. v. Honeywell Intern., Inc., --- F.Supp.2d --, 2014 WL 1017914, at *4–6 (D. Ariz. 2014) (concluding that no illegal tying arrangement existed where defendant
offered bundled products at a discount because the products were available separately and no other evidence of
coercion supported existence of tying arrangement).

ORDER
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1 and Mr. Bezos are entitled to judgment on the pleadings on this claim, or in the alternative,
2 summary judgment.
3

Section 230 of the Communications Decency Act (―CDA‖) ―immunizes providers of

4 interactive computer services against liability arising from content created by third parties.‖ Fair
5 Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir.
6 2008) (en banc); Carafano v. Metrosplash.com, 339 F.3d 1119, 1122 (9th Cir. 2003). The statute
7 provides that ―[n]o provider or user of an interactive computer service shall be treated as the
8 publisher or speaker of any information provided by another information content provider.‖ 47
9 U.S.C. § 230(c)(1). Ultimately, a defendant is entitled to § 230 protection as long as (1) it is a
10 provider or user of an ―interactive computer service,‖ (2) the asserted claims ―treat the defendant
11 as a publisher or speaker of information,‖ and (3) the challenged communication is ―information
12 provided by another content provider.‖ Batzel v. Smith, 333 F.3d 1018, 1037 (9th Cir. 2003).
13

Amazon is entitled to § 230‘s protection from Plaintiff‘s defamation/libel/slander/trade

14 libel claim. Amazon constitutes an ―interactive service provider,‖ which the CDA defines as a
15 provider of an information service or system that ―enables computer access by multiple users to a
16 computer server.‖ 47 U.S.C. § 230(f)(2); see Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d
17 1090, 1118 (W.D. Wash. 2004) (no dispute that Amazon is an interactive service provider for
18 CDA purposes); Schneider v. Amazon, 108 Wn.App. 454, 463 (Wash. 2001) (finding Amazon to
19 be an interactive service provider and entitled to immunity from claims based on defamatory
20 reviews by third parties). Plaintiff‘s Complaint alleges that Amazon operates a website that
21 allows consumers to purchase items online, i.e., to access Amazon‘s servers by placing orders
22 and browsing its online store. (See Dkt. No. 1 at ¶ 5.) Second, Dr. Joseph‘s claim, whether
23 labeled as a defamation, libel, slander or trade libel cause of action, faults Amazon for acting as
24 the publisher of the reviews. (See, e.g., Dkt. Nos. 1 at ¶ 60 (―Amazon published, copyrighted and
25 claimed ownership‖ of the allegedly libelous statements); 43 at ¶ 85 (―The above are just a few
26 examples of anonymous[,] defamatory, libelous reviews published by the Defendants.‖). The

ORDER
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1 CDA‘s express terms preclude him from treating Amazon as a publisher or speaker of the
2 information at issue, which is necessary for his state-law claims to succeed. See Barnes v.
3 Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009) (recognizing that ―the cause of action most
4 frequently associated with the cases on section 230 is defamation[,]‖ but explaining that the
5 statute‘s protection extends beyond defamation causes of action); Kimzey v. Yelp Inc., --6 F.Supp.2d ---, 2014 WL 1805551 (W.D. Wash. 2014) (unfair business practices, malicious libel,
7 and libel per se claims barred against website that allowed users to post reviews of businesses).
8 Finally, the statements alleged were made by third-party reviewers commenting on Dr. Joseph‘s
9 books and videos, and Dr. Joseph himself. (See generally Dkt. Nos. 1 at ¶¶ 25–26, 60; 43 at ¶
10 85.) They accordingly constitute ―information provided by another content provider‖ under the
11 CDA‘s terms. See 47 U.S.C. § 230(f)(3) (defining ―information content provider‖ as ―any person
12 or entity that is responsible, in whole or in part, for the creation or development of information
13 provided through the Internet or any other interactive computer service.‖). In sum, Plaintiff‘s
14 claim against Amazon is barred under § 230 of the CDA.
15

Dr. Joseph counters this inevitable conclusion with a number of arguments. First, he

16 alleges and argues that the CDA does not apply because Amazon makes ―editorial‖ decisions
17 about which product reviews to publish and which to delete. (Dkt. No. 1 at ¶ 71.B.) This
18 argument is without merit. The Ninth Circuit has made clear that such editorial acts (even
19 assuming they are true) are protected: ―[S]o long as a third-party willingly provides the essential
20 published content, the interactive services provider receives full immunity regardless of the
21 specific editing or selection process.‖ Carofano, 339 F.3d at 1124. Whether the website operator
22 removes certain reviews, publishes others, or alters the content, it is still entitled to CDA
23 immunity, since those activities constitute a publisher‘s traditional editorial functions.
24 Roommates.com, 521 F.3d at 1179–80 (―[A]ny activity that can be boiled down to deciding
25 whether to exclude material that third parties seek to post online is perforce immune under
26 section 230.‖). It is no surprise then that Courts have repeatedly barred similar claims against

ORDER
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1 websites that allow anonymous reviews or other allegedly defamatory content to be posted by
2 third parties. See, e.g., id.; Black v. Google Inc., 457 Fed. Appx. 622 (9th Cir. 2011)
3 (unpublished) (Google not liable for anonymous negative business reviews posted in its online
4 business directory); Kimzey, 2014 WL 1805551, at *2–3 (Yelp! website entitled to CDA
5 immunity from claims based on reviews posted on its site).
6

Dr. Joseph also argues that Amazon is the ―owner‖ of statements because it ―copyrights‖

7 them after they are posted. As Defendants‘ point out, this argument appears to be factually
8 incorrect—Amazon‘s standard Conditions of Use expressly state that customers posting reviews
9 own the content and merely grant Amazon a license to use it—and in any event, is unpersuasive
10 as a legal argument because Dr. Joseph still alleges nothing more than Amazon‘s fault for
11 publishing content first created and posted by third-parties. On a different note, Plaintiff argues
12 that CDA cannot apply because the reviews make defamatory statements about him as a person
13 rather than about his books. Such an argument is without merit. The essential elements of CDA
14 immunity do not turn on the substance of the alleged statements, but rather, on the party who is
15 allegedly liable for them and whether that party must be deemed a ―publisher‖ to incur liability.
16 See, e.g., Gavra v. Google Inc., Case No. C12-6547, 2013 WL 3788241, at *2–3 (N.D. Cal. July
17 17, 2013) (claims based on allegedly defamatory videos about other individuals posted on
18 YouTube barred under § 230).
19

Finally, Dr. Joseph implies that the individuals who posted the allegedly defamatory and

20 libelous statements about him online were ―directly associated with the Defendants and may be
21 an employee of Amazon.‖ (Dkt. No. 1 at ¶ 71.C.) This argument fails for a number of reasons.
22 First, Dr. Joseph‘s Complaint itself contains insufficient allegations to support a conclusion that
23 Amazon authored any content. Plaintiff relies on nothing more than ―mere speculation‖ to allege
24 that some unidentified Amazon employee might have authored the negative commentary about
25 him without explaining why or how that might be the case. Such allegations are wholly
26 insufficient to avoid § 230‘s reach. See, e.g., Levitt v. Yelp! Inc., Case No. C10-1321, 2011 WL

ORDER
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1 5079526, at *2 (N.D. Cal. Oct. 26, 2011) (rejecting similarly speculative assertions that
2 unidentified Yelp employees authored allegedly defamatory reviews). Additionally, even if the
3 Court accepted this conclusory allegation as sufficient, summary judgment against Plaintiff
4 would be warranted because he provides absolutely no evidence to support his assertion that any
5 Amazon employee posted the reviews at issue. On the other hand, Amazon has provided a sworn
6 declaration clarifying that Amazon neither creates nor controls the content of any third-party
7 reviews, except that it reserves the right to delete reviews that violate its published policies. (Dkt.
8 No. 62 at ¶ 3.) That alone would be sufficient to justify summary judgment for Amazon.
9

In sum, the Court concludes that Amazon is entitled to § 230 immunity for Plaintiff‘s

10 ―libel/defamation/slander/trade libel‖ claim.
Plaintiff’s Breach of Contract / “Bait and Switch” Claim

11

E.

12

Plaintiff also asserts what appears to be a breach of contract claim.9 Under the Amazon

13 Associate program, publishers and authors can advertise their books on their own websites and
14 use ―special links‖ to direct customers to Amazon‘s website, where they can then purchase the
15 book. (See Dkt. No. 66 at 29.) Amazon is obligated to pay a fee to the author or publisher when
16 said book is sold. According to Plaintiff, Amazon has deleted the special link tags after
17 customers have clicked on his website‘s links and been forwarded to Amazon‘s website, and has
18 subsequently redirected customers to other products so as to avoid paying referral fees. (Id.) Dr.
19 Joseph also alleges that Amazon improperly lists his books as ―unavailable‖ to avoid paying
20 referral fees. (Id.) In response, Amazon provides the declaration of one of its Associates Program
21 enforcement managers. That individual provided the applicable Associates Operating Agreement
22
23
24
25
26

9

Dr. Joseph also frames this claim as a ―bait and switch‖ scheme. The alleged conduct, however—
Amazon‘s alleged removal of special link tags—is not a ―bait and switch‖ scheme against Dr. Joseph, as he nowhere
alleges that Amazon advertised a product to him at a low price for no purpose other than to dupe him into
purchasing a higher-priced item. See Walker v. Wenatchee Valley Truck and Auto Out, Inc., 155 Wash. App. 199,
215 (Wash. App. 2010) (―Bait and switch describes an offer which is made not in order to sell the advertised product
at the advertised price, but rather to draw a customer to the store to sell him another similar product which is more
profitable to the advertiser.‖). His claim is thus without merit insofar as he intends to bring a bait and switch claim
under Washington law.

ORDER
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1 and explained that (i) under the terms of that agreement, it is the associate‘s responsibility to
2 properly format links to the Amazon website by using the appropriate special ―tagged‖ link
3 format; (ii) Amazon has no responsibility under the terms of the Operating Agreement to pay
4 referral fees for linked purchases that did not contain the appropriate tagged format; (iii) that
5 Amazon‘s referral payments are calculated and paid automatically; and (iv) that Amazon does
6 not alter or change referral links on outside associate‘s website in any way. (Dkt. No. 63.)
7 Amazon also points out in a sworn declaration that a review of Dr. Joseph‘s website indicates
8 that numerous links are improperly formatted, which under the terms of the agreement, would
9 result in non-payment of referral fees even if a customer clicked through the link and made a
10 qualifying purchase. (Id.) Finally, Amazon offers sworn testimony to the effect that according to
11 its records, Dr. Joseph has been paid for all qualifying purchases under the Associates program,
12 including $2,678.45 in advertising fees for 1,971 qualifying purchases. (Id. at ¶ 8.)
13

Amazon is entitled to summary judgment on this claim. It has offered evidence to support

14 its argument that it has not breached the applicable operating agreement and that it has paid Dr.
15 Joseph for all qualifying purchases. In his opposition, Dr. Joseph nowhere addresses these facts
16 and merely argues that Amazon has committed fraud by engaging in the alleged conduct. Nor
17 does he identify a single example of Amazon‘s failure to pay him for a qualifying referral and
18 fails to offer evidence to support such any such finding. (See Dkt. No. 66 at 26, 29.) Absent
19 supporting evidence or, at a minimum, some specificity regarding Amazon‘s alleged breaches,
20 the Court cannot conclude that any material facts are genuinely in dispute.
Plaintiff’s Remaining Claims for Fraud, Malice, Personal Injury

21

F.

22

Plaintiff also attempts to bring claims for ―malice, oppression, fraud‖ and personal injury.

23 To the extent Plaintiff‘s claims rely on statutory or regulatory provisions that do not provide
24 private causes of action, the Court grants Defendants‘ motion for judgment on the pleadings.
25 (See Dkt. No. 1 at ¶¶ 84, 90, 97.) Insofar as Dr. Joseph labels his allegations as a ―fraud‖ claim,
26 the Court views them as a mere re-hashing of the claims already addressed herein. Notably, in

ORDER
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1 his Complaint and motion papers, Plaintiff makes no attempt to cite and apply the appropriate
2 state law governing a fraud claim. Nonetheless, the Court has reviewed his allegations and
3 concludes that the Complaint utterly fails to allege with the requisite specificity the elements of a
4 fraud claim under Washington law. See Fed. R. Civ. P. 9(b) (party must ―state with particularity
5 the circumstances constituting fraud‖ in alleging a fraud claim); Stiley v. Block, 925 P.2d 194,
6 204 (Wash. 1996) (fraud plaintiff must prove by clear, cogent, and convincing evidence the
7 following elements to make out a fraud claim: ―(1) representation of an existing fact; (2)
8 materiality; (3) falsity; (4) the speaker‘s knowledge of its falsity; (5) intent of the speaker that it
9 should be acted upon by the plaintiff; (6) plaintiff‘s ignorance of its falsity; (7) plaintiff‘s
10 reliance on the truth of the representation; (8) plaintiff‘s right to rely upon it; and (9) damages
11 suffered by the plaintiff.‖). Here, Dr. Joseph nowhere alleges that Amazon made a material
12 representation to him that he had right to and did rely upon to his detriment; instead, he merely
13 asserts that Amazon wrongfully stated (to the public) that his books were not available for
14 shipping on its website. Even if true, that repeated assertion does not sufficiently allege, with
15 particularity, how Amazon defrauded Dr. Joseph by misrepresenting an existing fact that he
16 relied upon. Amazon is accordingly entitled to judgment on the pleadings.
17

Finally, the Court grants Defendants judgment on the pleadings with regard to Plaintiff‘s

18 ―personal injury‖ claim. It is unclear what claim Plaintiff actually seeks to assert, but the Court
19 agrees with Defendants that this claim can fairly be viewed as an ―intentional infliction of
20 emotional distress‖ cause of action. To prevail on such a claim, a plaintiff must prove that (1) a
21 defendant engaged in ―extreme and outrageous conduct,‖ (2) the defendant intentionally or
22 recklessly inflicted emotional distress on the plaintiff, and (3) defendant‘s actions actually
23 resulted in severe emotional distress. Kloepfel v. Bokor, 149 Wash.2d 192, 195–96, 66 P.3d 630
24 (2003) (citing Reid v. Pierce Cnty., 136 Wash.2d 195, 202 (1998)). ―Any claim of outrage must
25 be predicated on behavior so outrageous in character, and so extreme in degree, as to go beyond
26 all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

ORDER
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1 civilized society.‖ Strong v. Terrell, 147 Wash. App. 376, 385 (Wash. App. 2008) (citation
2 omitted). Here, Dr. Joseph has alleged noting that could fairly be deemed sufficiently outrageous
3 to support a claim of intentional infliction of emotional distress. Defendants are entitled to
4 judgment on the pleadings on this claim.
Plaintiff’s Rule 56(d) Request for Additional Discovery

5

G.

6

Notwithstanding the fact that he moved for summary judgment on his antitrust and

7 defamation/libel claims and argued that ―discovery is not essential and need not be completed‖
8 before granting summary judgment in his favor, Dr. Joseph requested in his opposition to
9 Defendants‘ cross-motion that he be permitted to take additional discovery before Amazon‘s
10 motion is granted. Federal Rule of Civil Procedure 56(d) authorizes the Court to defer ruling on a
11 summary judgment motion and instead authorize the non-moving party to conduct additional
12 discovery necessary to oppose the motion. In making a Rule 56(d) request, a party must ―make
13 clear what information is sought and how it would preclude summary judgment,‖ Garrett v. City
14 and Cnty. of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1998), and such a request must be
15 supported by factual allegations. ―Wild speculation‖ about facts that may be learned in discovery
16 is not sufficient. Margolis v. Ryan, 140 F.3d 850, 854 (9th Cir. 1998).
17

The Court denies Dr. Joseph‘s request. As an initial matter, the Court has determined that

18 Amazon is entitled to judgment on the pleadings on each of its claims other than the breach of
19 contract claim. It is thus unnecessary to consider whether additional discovery is warranted, for
20 Plaintiff‘s Complaint does not even allege facts that, if true, would state a claim. Insofar as
21 Plaintiff wishes to amend his Complaint, the Court denies the request. A review of the facts that
22 Dr. Joseph did allege, which the Court has addressed herein, demonstrates that amendment
23 would be futile. The addition of factual allegations would not save his claims that are barred as a
24 matter of law.
25

To the extent the Court has determined that summary judgment is warranted in Amazon‘s

26 favor—namely, on Plaintiff‘s breach of contract claim—Dr. Joseph‘s Rule 56(d) request still

ORDER
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1 strikes the Court as nothing more than an attempt to engage in widespread, harassing, and
2 unnecessary discovery. Dr. Joseph submitted an affidavit to support his request (Dkt. No. 69),
3 along with numerous other filings and motions requesting discovery and the deposition of Jeff
4 Bezos. (See Dkt. Nos. 53–58.) The affidavit does not set forth with any specificity the relevant,
5 non-speculative discovery sought or how such information would actually preclude summary
6 judgment on any claim, much less the breach of contract claim addressed herein. As a practical
7 matter, Dr. Joseph‘s affidavit is little more than an extended rant about Dr. Joseph‘s personal
8 dislike of Mr. Bezos. (See, e.g., Dkt. No. 69 at ¶ 59 (―Jeff Bezos is the typical bully, who enjoys
9 instilling fear and panic in his managers and employees and who attacks those who he believes
10 are weak and vulnerable . . . Bezos is vile, vicious, malicious. . . it can be deduced that Bezos
11 suffers from significant emotional and psychological problems which are probably related to his
12 delicate build and very tiny size and the fact that his biological father rejected and abandoned
13 him[.]‖). While the Court is aware that it should normally grant Rule 56(d) requests ―fairly
14 freely‖ when a summary judgment motion is filed before the non-moving party has had a
15 realistic opportunity to conduct discovery related to its theory of the case, Burlington Northern
16 Santa Fe R. Co. v. The Assiniboine, 323 F.3d 767, 774 (9th Cir. 2003), the Court denies
17 Plaintiff‘s request because he has not complied with Rule 56(d)‘s requirements and because
18 allowing discovery in this matter would be fruitless. Jones v. Blanas, 393 F.3d 918, 930 (9th Cir.
19 2004); see Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 (9th Cir. 2011) (holding that failure to
20 comply with the requirements of Rule 56(d) is a proper ground for denying relief); Tatum v. City
21 and Cnty. of San Francisco, 441 F.3d 1090, 1100-1101 (9th Cir. 2006) (denying Rule 56(d)
22 request where affidavit did not specify the discovery sought and how that information would
23 preclude summary judgment).
24 III.

CONCLUSION

25

For the foregoing reasons, Defendants‘ motion for judgment on the pleadings and/or

26 summary judgment (Dkt. No. 60) is GRANTED and Plaintiff‘s motion for summary judgment is

ORDER
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1 DENIED. (Dkt. No. 43.) In light of this ruling, the Court declines to consider Plaintiff‘s
2 additional motions to compel discovery (Dkt. Nos. 53, 57) or Defendants‘ motion for a
3 protective order (Dkt. No. 70) and DENIES those motions as moot. The Court will enter
4 judgment accordingly, and the Clerk is respectfully directed to CLOSE this case.
5

DATED this 28th day of August 2014.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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