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Joseph v., Inc.

United States District Court, W.D. Washington

August 28, 2014

RHAWN JOSEPH, Plaintiff,
AMAZON.COM, INC., et al., Defendants

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Rhawn Joseph, Plaintiff, Pro se, San Jose, CA.

For Inc, Jeffrey P Bezos, Defendants: James Alexander Reese, Karen P Kimmey, Roderick Manley Thompson, LEAD ATTORNEYS, PRO HAC VICE, FARELLA BRAUN & MARTEL, SAN FRANCISCO, CA; James C. Grant, John Goldmark, DAVIS WRIGHT TREMAINE (SEA), SEATTLE, WA.

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This matter comes before the Court on Plaintiff's motion for partial summary judgment (Dkt. No. 43) and Defendants' cross-motion for judgment on the pleadings and/or summary judgment (Dkt. No. 60). Having thoroughly considered the parties' briefing and the relevant record, the Court hereby DENIES Plaintiff's motion

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for partial summary judgment and GRANTS Defendants' motion for judgment on the pleadings and/or summary judgment.[1]


A. Amazon's Business Practices

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

Amazon operates the website, through which consumers may purchase books and other items. Jeff Bezos is Amazon's founder and CEO. Amazon offers publishers and authors multiple options for selling books on its website. Under the " Amazon Advantage" program, authors and publishers may have their books sold directly from to the customer. When sellers utilize this program, consumers give their credit card and shipping information to Amazon when they want to buy the book. Amazon then purchases the book at a price below the retail price from the publisher/author and re-sells it to the end-customer at a marked-up retail price. To participate, sellers must provide hard copies of their books directly to Amazon before the sale or, according to Plaintiff, have their books printed using Amazon's POD service, BookSurge.[2] Once a customer buys the book, Amazon will either ship the available copy directly from its fulfillment center or have copies printed using its BookSurge POD service and shipped to the consumer. (Dkt. Nos. 1 at ¶ 18; 60 at 8.) The company has publically stated that publishers may utilize any POD printer they wish in providing books for fulfillment purposes, so long as a limited number of hard copies of the books are provided to Amazon beforehand. Amazon has explained that the reason for this requirement--that a publisher either use its in-house POD service or provide a limited number of hard copies for each book title when using its own POD printer--is to enable Amazon to fulfill orders in the most efficient manner. ( See Dkt. No. 66 at 36.)

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

B. Procedural History

Dr. Joseph filed this putative class action lawsuit on December 10, 2012 in the Northern District of California. His Complaint revolves primarily around his " tying" claim under federal antitrust law. He alleges that Amazon unlawfully refuses to " directly" sell books printed by a POD printer other than its own subsidiary, BookSurge, which he believes to constitute an unlawful tying arrangement under § 1 of the Sherman Act. Plaintiff also alleges that Amazon regularly " publishes and copyrights defamatory and libelous statements about competitors including Plaintiff." (Dkt. No. 1 at ¶ 21.) He argues in his Complaint and briefing that Amazon is responsible for reviews that he believes to be defamatory, though the allegations are scattered and unclear. Finally, Plaintiff asserts that Amazon and Mr. Bezos have breached a contract and engaged in a " bait and switch" scheme to defraud him by failing to pay him the appropriate advertising referral fees due under the Amazon Associates program. ( Id. at ¶ 30.) Instead, he alleges, Amazon removes the special " tracking tag" once users are directed to its website and purchase other products. ( Id. )

After Mr. Joseph brought suit, Amazon moved to dismiss or transfer the case to the Western District of Washington.[3] The motion was granted in part and the case was transferred to this district in late 2013. ( See Dkt. No. 35.) Before this Court could hold a status conference and establish a case management schedule, Plaintiff filed a motion for summary judgment on his federal antitrust and state-law " defamation/libel/slander/trade libel" claims. (Dkt. No. 43.) Plaintiff also submitted a number of additional filings, including

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a motion for an order authorizing the deposition of Mr. Bezos (Dkt. No. 53), a deposition notice to the same effect (Dkt. No. 54), a " discovery plan" (Dkt. No. 55), a " status report" (Dkt. No. 56), a motion and petition to authorize Plaintiff to proceed with discovery (Dkt. No. 57), and a Reply to Defendants' Answer (Dkt. No. 58). Defendants filed a cross-motion and response to Plaintiff's summary judgment motion (Dkt. No. 60), as well as a cross-motion for a protective order prohibiting the deposition of Jeff Bezos. (Dkt. No. 70.) The Court vacated the pending status conference and stayed any further motion practice (unless the requesting party obtained leave of Court to file a motion) while the pending motions were taken under consideration. (Dkt. No. 77.) Plaintiff has nonetheless continued to file " status reports," many of which directly accuse the Court of bias even though the Court has not yet rendered any ruling on the motions in this case. ( See Dkt. No. 79, 81, 84, 85.) Upon review, the Court concludes that Defendants' motion should be granted and this lawsuit dismissed.


A. Legal Standard

Plaintiff moves for summary judgment and Defendants move for judgment on the pleadings and/or summary judgment. Under Federal Rule of Civil Procedure 12(c), " [a]fter the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). Judgment on the pleadings " is properly granted when, taking all the allegations in the pleadings as true, a party is entitled to judgment as a matter of law." Lyon v. Chase Bank USA, N.A.,656 F.3d 877, 883 (9th Cir. 2011). The court evaluates a Rule 12(c) motion for judgment on the pleadings under the same standard as a Rule 12(b)(6) motion to dismiss. Dworkin v. Hustler Magazine Inc. ., 867 F.2d 1188, 1192 (9th Cir. 1989). When ruling on a motion to dismiss, a court may consider the pleadings, ...

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