DRICKEY JACKSON, individually and on behalf of all others similarly situated, Plaintiff,
v.
AMAZON.COM, INC., Defendant.
United States District Court, S.D. California
November 30, 2021
ORDER
Hon. William Q. Hayes, United States District Court.
The matter before the Court is the Motion to Stay Pending Appeal filed by Defendant Amazon.com, Inc. (ECF No. 30).
I. BACKGROUND
On February 19, 2021, Plaintiff Drickey Jackson filed a First Amended Class Action Complaint (“FAC”) against Defendant Amazon.com, Inc. (“Amazon”). (ECF No. 11). Plaintiff brings individual and class claims against Amazon for violations of federal and California law, arising from Amazon's alleged interception of communications by members of the Amazon Flex program in a closed Facebook group.
On March 16, 2021, Defendant Amazon filed a Motion to Compel Arbitration. (ECF No. 15). On August 3, 2021, the Court held oral argument on the Motion to Compel Arbitration. (ECF No. 25). On September 15, 2021, the Court issued an Order denying the Motion Compel Arbitration. (ECF No. 26). The Court stated that Amazon “fail[ed] to meet
its burden to demonstrate mutual assent to the 2019 [Terms of Service (‘TOS')]” and concluded that “the 2016 TOS applies in this case.” (Id. at 10). The Court applied California state law to interpret the terms of the 2016 TOS and concluded that “Plaintiff has met his burden to demonstrate that the claims alleged [in the FAC] do not fall within the scope of the arbitration provision.” (Id. at 18).
On October 12, 2021, Amazon filed a Notice of Appeal of the Order denying the Motion to Compel Arbitration (ECF No. 31) and a Motion to Stay Pending Appeal (ECF No. 30). Amazon asserts that the Court should exercise its discretion and stay this action pending appeal, because the arbitration issues in this case present “serious legal questions worthy of Ninth Circuit review.” (ECF No. 30-1 at 6). Amazon contends that it is likely to succeed on appeal, because “[t]here is a dearth of Ninth Circuit authority on the evidentiary burden for establishing email notice of a modification of an existing arbitration agreement, ” and “neither the Court nor the parties have identified cases that are factually on point” regarding the scope of the arbitration provision. (Id. at 6-7). Amazon contends that Amazon would be denied the benefits of individual arbitration if a stay is not granted. Amazon further contends that any delay caused by a stay would not substantially harm Plaintiff, and a stay is in the interest of the public policy favoring arbitration agreements.
On November 1, 2021, Plaintiff filed an Opposition to the Motion to Stay Pending Appeal. (ECF No. 35). Plaintiff contends that the appeal does not present serious questions for the Ninth Circuit, because the arbitration issues in this case involve “routine issues of state law involving contract interpretation.” (ECF No. 35 at 7). Plaintiff contends that a stay is not warranted, because Plaintiff's claims are not subject to arbitration, and any success by Amazon on appeal would require this Court to consider Plaintiff's arguments as to why the arbitration agreement is unenforceable. Plaintiff contends that requiring Amazon to defend this suit does not constitute clear hardship or inequity. Plaintiff contends that a stay could result in significant delay, and Plaintiff and the proposed class have an interest in expeditious resolution of this litigation. Plaintiff further contends that the public
interest would be served by continuing this litigation, because Plaintiff has not agreed to arbitrate, and a stay could result in the loss of evidence.
On November 8, 2021, Amazon filed a Reply. (ECF No. 36).
II. LEGAL STANDARD
Where “the issue of arbitrability [i]s the only substantive issue presented in [an] appeal, the district court [i]s not divested of...
