Nicosia v. Amazon.com, Inc.

84 F.Supp.3d 142

Dean NICOSIA, on behalf of himself and all others similarly situated, Plaintiff

v.AMAZON.COM, INC., Defendant.

No. 14–cv–4513 SLTMDG.

United States District Court, E.D. New York.

Signed Feb. 2, 2015.

Filed Feb. 4, 2015.

Gregory S. Duncan, Office of Gregory S. Duncan, Charlottesville, VA, Joseph S. Tusa, Tusa, P.C., Southhold, NY, Peter D. St. Phillip, Jr., Scott Vincent Papp, Lowey Dannenberg, et al., White Plains, NY, Paula M. Roach, Timothy G. Blood, Blood Hurst & O'Reardon LLP, San Diego, CA, for Plaintiff.

David Abraham Snider, Kevin T. Rover, Regina Schaffer–Goldman, Morgan, Lewis & Bockius LLP, New York, NY, Ezra D. Church, Gregory T. Parks, Morgan, Lewis & Bockius LLP, Philadelphia, PA, for Defendant.

MEMORANDUM AND ORDER

TOWNES, District Judge:

Plaintiff Dean Nicosia brings this putative class action against Amazon.com, Inc. (“Amazon” or “Amazon.com”), contending that Amazon has sold and continues to sell weight loss supplements containing sibutramine, a “controlled substance ... [that has] never been permitted for sale without a prescription from a licensed physician ... [and that is] associated with a serious risk of cardiovascular events and strokes,” in violation of various federal and state consumer protection laws and in breach of various implied warranties. (Compl. ¶¶ 2, 86–175.) Currently before the Court are (1) Amazon's motion to dismiss on the grounds that, inter alia, all of Plaintiff's claims are governed by a mandatory arbitration clause and class action waiver, and (2) Nicosia's motion for a preliminary injunction, in which Nicosia asks this Court to grant the following injunctive relief:

A. Requiring Amazon to comply with the ‘special packaging’ rules promulgated by the Consumer Product Safety Commission;

B. Preliminarily enjoining Amazon from further distributing any weight loss products that contain sibutramine; and

C. Providing a court-approved remedial notice to all consumers to whom Amazon sold products containing sibutramine, and post the same notice conspicuously on its website.

(Pl. PI Br. at 23–24.) Amazon's motion to dismiss is granted because all of Plaintiff's claims are subject to mandatory arbitration and Plaintiff's motion for a preliminary injunction is denied because Plaintiff lacks standing.

Factual Background

Plaintiff Dean Nicosia is a resident of Wilmington, North Carolina. He alleges that “during the class period(s) [he] was a resident of Massapequa, New York.” (Compl. ¶ 15.) Plaintiff twice, first on January 30, 2013 and then again on April 19, 2013, purchased diet drugs known as “1 Day Diet” from a third-party seller on Amazon.com. (Compl. ¶¶ 7, 54–55.)

Sibutramine is a controlled substance only available by prescription. The United States Food and Drug Administration (“FDA”) had previously published a press release, on October 8, 2010, stating the “continued availability” of a certain diet drug containing sibutramine “is not justified when you compare the very modest weight loss that people achieve on this drug to their risk of heart attack or stroke,” and reporting that the results of a clinical trial “demonstrated a 16 percent increase in the risk of serious heart events, including non-fatal heart attack, non-fatal stroke, the need to be resuscitated once the heart stopped, and death, in a group of patients given sibutramine compared to another given placebo.” (Compl. at ¶¶ 19–20 (quoting FDA Oct. 8, 2010 Press Release)).

Several months after Plaintiff made his purchases, on November 21, 2013, the FDA issued a “Public Notification” that the 1 Day Diet product contained “hidden” sibutramine. (Compl. ¶¶ 58–59.) The FDA's November 21, 2013 Public Notification, which is directed towards the public, not retailers, does not call for any further action by retailers. It states that:

The Food and Drug Administration (FDA) is advising consumers not to purchase or use “1 Day Diet,” a product promoted and for weight loss on various websites and possibly in some retail stores.

FDA laboratory analysis confirmed that “1 Day Diet” contains sibutramine....

Consumers should stop using this product immediately and throw it away. Consumers who have experienced any negative side effects should consult a health care professional as soon as possible....

Note: This notification is to inform the public of a growing trend of dietary supplements or conventional foods with hidden drugs and chemicals. These products are typically promoted for sexual enhancement, weight loss, and body building, and are often represented as being “all natural.” FDA is unable to test and identify all products marketed as dietary supplements on the market that have potentially harmful hidden ingredients. Consumers should exercise caution before purchasing any product in the above categories.

(Compl. at ¶ 19.)

The label on the container of the 1 Day Diet product did not list sibutramine as an ingredient. (Compl. at ¶ 7.) It is undisputed that neither Plaintiff nor Amazon knew, at the time that Plaintiff made his purchases, that the 1 Day Diet product contained sibutramine.

According to Plaintiff, in making his purchases, he used an online account that he established with Amazon.com on or about June 9, 2008. When setting up his account, Plaintiff checked a box indicating that he agreed with Amazon's “Conditions of Use.” The Conditions of Use in effect in June 2008 (the “2008 Conditions of Use”) provided, in relevant part, that:

Any dispute relating in any way to your visit to Amazon.com or to products or services sold or distributed on Amazon or through Amazon.com in which the aggregate total claim for relief sought on behalf of one more parties exceeds $7,500 shall be adjudicated in any state or federal court in King County, Washington, and you consent to exclusive jurisdiction and venue in such courts.

(Duncan Decl. in Support of Pl.'s Opp'n to Motion to Dismiss Decl., Ex. C at 7.) The 2008 Conditions of Use also stated, in relevant part: “We reserve the right to make changes to our site, policies, and these Conditions of Use at any time.” (Id. at 8.)¹

In addition, both times that Plaintiff made the purchases at issue in this litigation on the Amazon.com website, he viewed a checkout screen that provided, on top, a hyperlink to the then-current Conditions of Use and reminded customers that “by placing [an] order,” they “agree to Amazon.com's conditions of use.” The Conditions of Use in effect as of December 5, 2012 through the period that Plaintiff made both of the purchases as issue in this litigation, (the “2012 Conditions of Use”), include the following provision, which is conspicuously displayed in bold font:

DISPUTES

Any dispute or claim relating in any way to your use of any Amazon Service, or to any products or services sold or distributed by Amazon or through Amazon.com will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However an arbitrator can award on an individual basis the same damages and relief as court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.

(Def. Ex. A at 5–6) (emphasis in original). The 2012 Conditions of Use also include a conspicuous class action waiver, also bolded, which states:

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in class, consolidated or representative action.

(Id. at 6) (emphasis in original).

On November 21, 2013, the same day that the FDA issued the Public Notification, Amazon banned the 1 Day Diet product from its website and removed any listings of the product from its website. Plaintiff did not purchase any 1 Day Diet products after the FDA's Public Notification was issued. (Compl. ¶¶ 54–55.) Upon learning that the 1 Day Diet products he purchased contained sibutramine, Plaintiff did not attempt to return the product to Amazon or engage in any dispute resolution with the third-party seller(s) who sold him sibutramine. Plaintiff does not allege that he suffered any medical complications as a result of taking the 1 Day Diet product.

On July 28, 2014, Plaintiff commenced the instant putative class action against Amazon, contending that Amazon has sold and continues to sell many different weight loss supplements containing sibutramine in violation of various federal and state consumer protection laws and in breach of various implied warranties. (Compl. ¶¶ 2, 86–175.) Currently before the Court are two motions. First, Amazon's motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that, inter alia, Plaintiff's claims fall squarely within the scope of Amazon's mandatory arbitration and class waiver clauses. Second, Plaintiff's motion for a preliminary injunction, seeking, inter alia, warnings be sent to all Amazon customers who purchased any product containing sibutramine.

Discussion

I. Motion to Dismiss

A. Legal Standard

Amazon's motion is styled as a motion to dismiss “in favor of individual arbitration” pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Def.'s Br. at 5.) “[A] number of other courts [in this Circuit] have ... construe[d] ... motion[s] to dismiss [based on the existence of mandatory arbitration clauses] as [ ] motion[s] to compel arbitration.” Jillian Mech. Corp. v. United Serv. Workers Union Local 355, 882 F.Supp.2d 358, 363 (E.D.N.Y.2012) ; 75–07 Food Corp. v. Trustees of United Food & Commercial Workers Local 342 Health Care Fund, No. 13–CV–5861 JFB ARL, 2014 WL 691653, at *4–5 (E.D.N.Y. Feb. 24, 2014). However, doing so would be inappropriate here because Amazon does “not explicitly [or implicitly] request the district court to direct that arbitration be held,” but rather, simply...