United States District Court, W.D. Washington, Seattle
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, et al., Plaintiffs,
THE CITY OF SEATTLE, et al., Defendants.
ORDER RENOTING PLAINTIFFS' MOTION FOR SUMMARY
S. Lasnik United States District Judge.
matter comes before the Court on “Defendants'
Motion to Permit Discovery Necessary to Oppose Summary
Judgment.” Dkt. # 103. Defendants argue that a
continuance of plaintiffs' pending summary judgment
motions is necessary so that they can conduct discovery
regarding (a) whether the labor exemption to federal
antitrust law applies to drivers covered by the City of
Seattle Ordinance 124968 and (b) whether the for-hire
transportation services offered by plaintiffs depend upon
coordinated driver conduct, making the per se rules of
unlawful conduct inapplicable. Having reviewed the memoranda
and declaration submitted by the parties as well as the
underlying motion for summary judgment, the Court finds as
56(d) offers relief to a litigant who, when faced with a
summary judgment motion, “shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its
opposition.” The party seeking a continuance bears the
burden of showing the specific facts it hopes to elicit in
discovery, that there is reason to believe the facts sought
exist, and that the facts are essential to oppose summary
judgment. Family Home and Fin. Center, Inc. v. Fed. Home
Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008).
The party must also show that it has diligently pursued
discovery. Qualls By and Through Qualls v. Blue Cross of
Cal., Inc., 22 F.3d 839, 844 (9th Cir. 1994). If the
requesting party cannot support its request for a
continuance, the Court may proceed to summary judgment.
Id. If, on the other hand, an appropriate showing is
made, the Court may “(1) defer considering the motion
or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other
appropriate order.” Fed.R.Civ.P. 56(d).
agreement of the parties, discovery in this matter has not
yet commenced. See Dkt. # 98 at 1. Plaintiffs have
filed a motion for summary judgment seeking a determination
that the City's Ordinance is preempted by federal
antitrust laws because it authorizes per se illegal group
boycotts and/or price fixing. Dkt. # 100. Defendants, in
responding to the motion for summary judgment, intend to
argue that the “labor” exemption to the federal
antitrust laws applies. 15 U.S.C. § 17 (“The labor
of a human being is not a commodity or article of
commerce” subject to regulation under the Clayton Act).
The argument is not frivolous,  and discovery from ride referral
services and drivers regarding (a) whether the for-hire
drivers are selling their labor, as opposed to a product or
service that qualifies as a commodity under the antitrust
laws, (b) the nature and scope of the drivers'
entrepreneurial investments in training, vehicles, and other
business expenditures, and (c) the drivers' control over
the supply of whatever commodity they are selling is needed
to support the argument. In addition, defendants hope to be
able to show that the product the ride referral companies are
selling - namely, ready access to a private car and driver at
a predetermined (fixed) price - requires a certain degree of
cooperation between and among the drivers in order to make
the product available at all. If that is the case, the per se
rules of illegality under the antitrust laws may be
inapplicable, and the Court would have to decide whether the
undeniable restraint on trade arising from that cooperation
is nevertheless reasonable in that it allows the product to
be offered and does not unnecessarily restrict competition or
decrease output. See Am. Needle, Inc. v. Nat'l
Football League, 560 U.S. 183, 203 (2010); NCAA v.
Bd. of Regents of Univ. of Okla., 468 U.S. 85, 98-103
(1984). Discovery regarding what powers and authority the
drivers cede to the ride referral companies, the process by
which the ride referral applications can generate a single
ride option at a fixed price, and the market appeal and
efficiencies of the coordinated selling arrangement will
inform the initial determination of whether the activities at
issue here can only be carried out jointly.
have shown that the facts they hope to elicit from further
discovery are essential to oppose summary judgment and, given
the procedural posture of this case, they have not yet had an
opportunity to pursue their investigation of these matters.
For all of the foregoing reasons, the motion for a 56(d)
continuance (Dkt. # 103) is GRANTED. In light of the delay in
ruling on this motion, the Clerk of Court is directed to
renote plaintiffs' motion for summary judgment (Dkt. #
100) on the Court's calendar for Friday, November 22,
 Subdivision (d) of Rule 56
“carries forward without substantial change the
provisions of former subdivision (f).” Fed.R.Civ.P. 56,
Advisory Committee Note to the 2010 Amendments.
 Seattle amended the Ordinance in
January 2019 to eliminate the provisions authorizing
collective bargaining over the nature and amount of payments
between drivers and ride referral companies. See
Dkt. # 100-1.
 Plaintiffs argue that the labor
exemption applies only in the context of an employer-employee
relationship, not to independent contractors. The exemption
uses the phrase “labor of a human being, ”
however, and a recent Supreme Court decision makes clear
that, at the time the Clayton Act was written, even the
narrower term “employment” encompassed both
master-servant relationships and ...