Jones Clark v. Amazon.com Inc

Filing 15

ORDER to Consolidate. The cases 23-cv-1372-JNW, 23-cv-1545-JNW, 23-cv-1702-JNW are consolidated for all purposes, including trial, into a single action. The docket in Case No. 23-cv-1372-JNW will be the primary docket for the consolidated action, and all future filings must be made under this case number. Interim class counsel must file a consolidated complaint within 30 days of the Court's order appointing interim class counsel. Signed by Judge Jamal N Whitehead. (SB)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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LAURA ABBOTT, an individual, SIMA
HERNANDEZ, an individual,
MELISSA URBANCIC, an individual,
and JILL CAPPEL, an individual,
individually and on behalf of all others
similarly situated,
v.

CASE NO. 2:23-cv-1372-JNW
ORDER CONSOLIDATING CASES

Plaintiffs,

AMAZON.COM INC, a Delaware
Corporation,
Defendant.
SUMEET K. SRIVASTAVA,
individually and on behalf of all others
similarly situated,
v.

Plaintiff,

AMAZON.COM INC, a Delaware
Corporation,
Defendant.

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ORDER CONSOLIDATING CASES - 1

CASE NO. 2:23-cv-1545-JNW

HOLLY JONES CLARK, on behalf of
herself and all others similarly
situated,

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CASE NO. 2:23-cv-1702-JNW

Plaintiff,

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v.
AMAZON.COM INC, a Delaware
Corporation,

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Defendant.

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1. INTRODUCTION

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Three putative class actions are pending against Amazon regarding its

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refund and exchange policy. Before the Court is a joint motion to consolidate two of

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the cases, but because consolidation is within the broad discretion of the district

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courts, the Court considers sua sponte whether to consolidate all three cases and

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how litigation will proceed in its early stages. 1
2. BACKGROUND

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Plaintiffs Laura Abbott, Sima Hernandez, Melissa Urbancic, and Jill Cappel

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filed a putative class action against Defendant Amazon.com, alleging Amazon

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violated its refund and exchange policy by charging them for purchases they had

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returned. Abbott, et al. v. Amazon.com, Inc., No. 23-cv-1372, Dkt. No 1 (Sept. 5,

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2023). One month later, Plaintiff Sumeet Srivastava filed a putative class action

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against Amazon over the same practice. Srivastava v. Amazon.com, Inc., No. 23-cv-

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1545, Dkt. No. 1 (Oct. 5, 2023).

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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
consolidate cases sua sponte[.]”).

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The Abbott and Srivastava parties filed a stipulated motion to consolidate

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their cases, but they disagree about whether the plaintiffs should file a consolidated

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complaint. See Abbott, No. 23-cv-1372, Dkt. No. 30; Srivastava, No. 23-cv-1545, Dkt.

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No. 19.

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While their motions were pending, Plaintiff Holly Jones Clark filed another

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putative class action against Amazon. Jones Clark v. Amazon.com Inc., No. 23-cv-

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1702, Dkt. No. 1 (Nov. 7, 2023). Clark defines her proposed class as follows:

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All persons in the United States, who, according to the Defendant’s
records, were charged by Defendant for failing to return a product that
was timely returned in its original condition during the six years prior
to the filing of this action.
Id. ¶ 43.
Clark’s proposed class is the same as the proposed class in Abbott. Compare id.
with Abbott, 23-cv-1372, Dkt. No. 1 ¶ 86. In its notice of related cases, Amazon
describes a complete overlap of the cases: “[T]he proposed nationwide class in [the
Jones Clark] matter is identical to the proposed nationwide class in Abbott. And the
Srivastava proposed class encompass potential Abbott and Clark class members.”
Jones Clark, No. 23-cv-1702, Dkt. No. 9 at 2 (Nov. 9, 2023)).
3. CONSOLIDATION
Rule 42(a) allows district courts to consolidate actions that “involve a
common question of law or fact.” Fed. R. Civ. P. 42(a). But the cases need not be
identical as a prerequisite to consolidation. See id; see also Felix v. Symantec Corp.,
No. C 18-02902 WHA, 2018 WL 4029053, at *2 (N.D. Cal. Aug. 23, 2018) (“FRCP
42(a), however, does not require the complaints to be identical for purposes of

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ORDER CONSOLIDATING CASES - 3

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consolidation.”). District courts have “broad discretion under this rule to consolidate

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cases pending in the same district.” Investors Rsch. Co. v. U.S. Dist. Ct. for the Cent.

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Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989). Courts have “broad discretion” to

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consolidate cases and may do so sua sponte. In re Adams Apple, Inc., 829 F.2d at

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1487.

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The Abbott and Srivastava parties believe that consolidation is warranted

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because the Abbott Plaintiffs’ and Srivastava’s cases involve the same defendant

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and overlapping factual and legal issues. See Abbott, No. 23-cv-1372, Dkt. No. 30 at

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2; Srivastava, No. 23-cv-1545, Dkt. No. 19 at 2. The Court agrees. The Clark case

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also has the same defendant and overlapping factual and legal issues. To promote

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judicial economy, ensure consistent results, and to streamline matters overall, the

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Court GRANTS the parties’ motion to consolidate and consolidates the Clark case

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sua sponte.

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Since it’s the lower-numbered case, Abbott will constitute the main docket for

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the consolidated action, and all future filings must be made under Case No. 23-cv-

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1372. The case caption will be reformed as “In re: Amazon Return Policy Litigation.”

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In consolidated cases involving complex litigation, “unified or master

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complaint[s]” are “used often.” 9A Charles Alan Wright & Arthur R. Miller, Fed.

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Prac. & Proc. Civ. § 2382 (3d ed.) (collecting cases). Srivastava and Amazon

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advocate for a master complaint, but the Abbott Plaintiffs contend that a unified

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complaint is unnecessary considering the derivative nature of Srivastava’s

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complaint. The Abbott Plaintiffs primary objection, however, is that preparing a

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consolidated complaint will result in “needless delay” and give Amazon a potential

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tactical advantage in the form of extra time to respond to the plaintiffs’ claims.

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While this is a legitimate concern, it does not rise to the level of prejudice or

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override the obvious efficiencies to be gained down the line in directing motion

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practice and discovery toward one complaint. See Katz v. Realty Equities Corp. of

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New York, 521 F.2d 1354, 1359 (2d Cir. 1975) (affirming district court’s order

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requiring consolidated complaints for pretrial purposes in complex litigation suit).

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Accordingly, the Court finds that a consolidated complaint is appropriate
here. But filing the consolidated complaint is the province of interim class counsel,

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which, as discussed below, has yet to be appointed. See Pecznick v. Amazon.com,

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Inc., No. 2:22-CV-00743-TL, 2022 WL 4483123, at *6 (W.D. Wash. Sept. 27, 2022)

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(ordering interim class counsel to file consolidated amended complaint).
4. INTERIM CLASS COUNSEL

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Counsel for the Abbott Plaintiffs and Srivastava cannot agree upon a shared

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role in representing the putative class and will each seek interim lead class counsel

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status. The Court also presumes that Clark’s counsel will want a shot at this role or

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at least a say in this determination. Given the competing attorneys vying for

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control, the Court finds it necessary to designate interim counsel before class

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certification to protect the interest of the putative class. Fed. R. Civ. P. 23(g)(3); see

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Fed. R. Civ. P. 23 advisory committee’s note to 2003 amendment. The Abbott

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Plaintiffs, Srivastava, and Clark may file cross-motions seeking appointment as

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interim class counsel.

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5. OTHER MATTERS

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The parties discuss various other matters in their joint motion: the timing of

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a Rule 26(f) conference, the briefing schedule on any dispositive motion, and the

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deadline for Amazon’s response to the plaintiff’s complaints if a consolidated

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complaint is not ordered. See Abbott, No. 23-cv-1372, Dkt. No. 30 at 3,6; Srivastava,

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No. 23-cv-1545, Dkt. No. 19 at 3,6.

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But interim class counsel must be settled before the Court and the parties

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can address these issues in an informed way. So for now, the Court STRIKES the

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dates listed in the initial scheduling order in Abbott. See Abbott, No. 23-cv-1372,

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Dkt. No. 19 (Oct. 11, 2023). The Court also STRIKES Amazon’s recently filed

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Motion to Dismiss in Abbott. See Abbott, No. 23-cv-1372, Dkt. No. 31 (Nov. 8, 2023).

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The Court will grant Amazon leave to refile its motion after the consolidated

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complaint is filed.

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The forthcoming consolidated complaint will become the operative complaint

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in the consolidated action, so Amazon’s time to serve a responsive pleading will

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begin to run once the consolidated complaint is filed. Thus, the Court DENIES

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Srivastava and Amazon’s pending stipulated motion to extend the responsive

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pleading deadline as moot. Srivastava, No. 23-cv-1545-JNW, Dkt. No.19.
6. CONCLUSION

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In sum, the Court ORDERS as follows:

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4.1.

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The cases captioned as Abbott, et al. v. Amazon.com, Inc., No. 23-cv1372-JNW, Srivastava v. Amazon.com, Inc., No. 23-cv-1545-JNW,

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Clark v. Amazon.com Inc., No. 23-cv-1702-JNW are consolidated for all

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purposes, including trial, into a single action.

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4.2.

The docket in Case No. 23-cv-1372-JNW will be the primary docket for

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the consolidated action, and all future filings must be made under this

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case number.

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4.3.

Policy Litigation, Case No. 23-cv-1372-JNW.

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The consolidated action will be recaptioned as In re: Amazon Return

4.4.

The deadlines in the Court’s Order Regarding Initial Disclosures, Joint

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Status Report, and Early Settlement in Abbott, et al. v. Amazon.com,

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Inc., No. 23-cv-1372-JNW are STRICKEN. See Dkt. No. 19 (Oct. 11,

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2023).

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4.5.

JNW, No. 23-cv-1545-JNW, and No. 23-cv-1702-JNW.

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The Court directs the Clerk to file this order in Case No. 23-cv-1372-

4.6.

The Abbott Plaintiffs, Srivastava, and Clark may file cross-motions

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seeking appointment of interim class counsel as follows:

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Abbott Plaintiffs, Srivastava, and Clark may each file an opening

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brief within 14 days of this order seeking appointment as class

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counsel. Each brief may not exceed 4,200 words.

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Abbott Plaintiffs, Srivastava, and Clark may file an opposition brief

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to both or any other opening brief seeking appointment as class

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counsel 14 days later. Each parties combined brief may not exceed

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8,400 words.

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Abbott Plaintiffs, Srivastava, and Clark may each submit a reply in

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support of their original motion, which will be due seven days later.

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Each reply may not exceed 2,100 words.

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4.7.

of the Court’s order appointing interim class counsel.

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Interim class counsel must file a consolidated complaint within 30 days

4.8.

Amazon must serve its responsive pleading within 21 days after

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Plaintiffs file their consolidated complaint. To the extent that Amazon

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files a dispositive motion, the parties may propose an alternative

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briefing schedule.

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4.9.

The stipulated motion to extend the responsive pleading deadline in

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Srivastava v. Amazon.com, Inc., No. 23-cv-1545-JNW is DENIED as

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moot. Dkt. No. 19.

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4.10. Amazon’s Motion to Dismiss Abbott, et al. v. Amazon.com, Inc., No. 23cv-1372 is STRICKEN without prejudice. Dkt. No. 31.
Dated this 13th day of November, 2023.

A

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Jamal N. Whitehead
United States District Judge

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