United States District Court, W.D. Washington, Seattle
DR. A. CEMAL EKIN, Plaintiff,
AMAZON SERVICES, LLC, Defendant.
ORDER RE PLAINTIFF'S MOTION FOR CLARIFICATION OR 28 U.S.C. § 1292(B) CERTIFICATION
JOHN C. COUGHENOUR, District Judge.
This matter comes before the Court on Plaintiff's Motion to Clarify Order Compelling Arbitration, or, in the Alternative, for Certification under 28 U.S.C. § 1292(b). (Dkt. No. 44.) Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the Motion for the reasons explained herein.
Plaintiff Dr. Cemal Ekin seeks to pursue a class action lawsuit against Defendant Amazon Services, LLC based on what he alleges was Amazon's practice of encouraging certain vendors to increase the base price of their products so as to recapture the revenue lost as a result of providing free shipping to Amazon Prime members. (First Amended Complaint, Dkt. No. 5 at ¶¶ 3.4; 6.1-6.3; 7.1.) This Court granted Amazon's Motion to Compel Arbitration (Dkt. No. 24) on December 10, 2014. (Order, Dkt. No. 43.) We found that the Federal Arbitration Act,  the precedent set by AT&T Mobility, LLC v. Concepcion, 131 S.Ct. 1740 (U.S. 2011) and Coneff v. AT&T Corp., 673 F.3d 1155, 1160-61 (9th Cir. 2012), and the fact that Plaintiffs accepted Amazon's broad "relating to any dispute" (past or present) arbitration clause compelled the arbitration of Plaintiff's claims.
Plaintiff Dr. Ekin "respectfully disagrees" with the Court and states that he "has elected not to pursue arbitration of his dispute with Amazon, " and instead "wishes to pursue his remedies on appeal to the Ninth Circuit." (Plaintiff's Motion to Clarify, Dkt. No. 44 at 1.) Accordingly, Plaintiff requests that the Court either "dismiss his action as a result of the Order or, in the alternative, certify the Order for appeal." (Id. ) We deny both requests for the reasons discussed below.
A. Plaintiff's Request for Clarification
The Court declines to dismiss this action.
In its Motion to Compel Arbitration, Amazon explicitly moved for a stay, not dismissal. (Dkt. No. 24 at 1, 17-18.) Nothing in our responsive Order (Dkt. No. 43) suggests that our "[g]ranting [of] Defendant's Motion to Compel Arbitration" was in part only, or that this case was to be dismissed contrary to the prevailing party's request.
That our Order included an implied stay is amply supported by Ninth Circuit precedent. In MediVas, LLC v. Marubeni Corp., the Court of Appeals expressed a strong preference that arbitratable cases be stayed rather than dismissed. 741 F.3d 4 (9th Cir. 2014). Specifically, the Court "adopt[ed] a rebuttable presumption that an order compelling arbitration but not explicitly dismissing the underlying claims stays the action." (Id. at 9.) Plaintiff attempts to circumvent this rule by citing dicta contained in a footnote in which the MediVas Court posited that "a dismissal allowing immediate appeal might be appropriate" if "no arbitration will actually take place, " ( id. at 9, fn. 4 (emphasis added)), and then by declaring that arbitration will not take place in this case because "[i]t was never my intention to, and I will not, pursue this case through arbitration" (Ekin Declaration, Dkt. No. 49 at 1).
The MediVas Court's hypothetical rumination cannot be leveraged in the manner Plaintiff proposes. Even were we to interpret this footnote as Plaintiff urges, it would only allow this Court discretion to dismiss the instant suit rather than to stay it. However, we decline to exercise any such discretion in Plaintiff's favor given that under these particular circumstances, this would subvert the purposes and provisions of the FAA. Section 16 of the FAA "provides that a party may appeal from a district court order denying a motion to compel arbitration [while] a party cannot appeal an order compelling arbitration." Bushley v. Credit Suisse First Boston, 360 F.3d 1149, 1154 (9th Cir. 2004); see also Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1022 (9th Cir. 2014) ("Congress intended to prohibit immediate appeals from the orders listed in § 16(b)(1)-(4), " ensuring that arbitration proceed). As the Supreme Court established in Concepcion, a plaintiff may not avoid an arbitration agreement simply because he would prefer to pursue class claims rather than arbitrate individually. 131 S.Ct. at 1750-51, 1753. As Defendant states:
[T]his dicta... cannot mean, as Dr. Ekin suggests, that the Court must abide by a plaintiff's choice to dismiss without prejudice because he only wants to pursue claims on a class basis and therefore seeks to create grounds for immediate appeal of an order compelling individual arbitration.... If MediVas stood for the proposition that a class plaintiff could manufacture a basis to appeal without a 1292(b) certification, that would effectively read section 16 out of the FAA for putative class claims, yet the Act permits no such exception. It would also undermine Congress's intent to "move the parties to an arbitratable dispute out of court and into arbitration as quickly and easily as possible."
(Amazon's Response, Dkt. No. 47 at 4-5 (citing Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 22 (1983)).)
In sum, the Court declines to exercise any discretion (that Plaintiff argues) we possess to dismiss this case. We clarify, despite the fact that this is already implied by our Order, that Plaintiff's case is stayed pending the arbitration in which the parties are ...