Garber v. Amazon.com, Inc., 17 C 673

• Decision Date: 31 March 2019
• Docket Number: No. 17 C 673,17 C 673
• Citation: 380 F.Supp.3d 766
• Parties: David GARBER and Annette Garber, Plaintiffs, v. AMAZON.COM, INC. and Shenzhen Gangshen Technology Company Ltd., Defendants.
• Court: U.S. District Court — Northern District of Illinois

380 F.Supp.3d 766

David GARBER and Annette Garber, Plaintiffs,

v.AMAZON.COM, INC. and Shenzhen Gangshen Technology Company Ltd., Defendants.

No. 17 C 673

United States District Court, N.D. Illinois, Eastern Division.

Signed March 31, 2019

Bradley M. Arnold, Gibson Kolb, PLC, Buffalo Grove, IL, for Plaintiffs.

W. Brendan Murphy, Rachel Elizabeth Constantino-wallace, Perkins Coie LLP, Seattle, WA, Caroline Ayres Teichner, John Barkley Sample, IV, Perkins Coie LLP, Chicago, IL, for Defendants.

Memorandum Opinion and Order

Virginia M. Kendall, United States District Judge David and Annette Garber sued Amazon.com, Inc. ("Amazon") and Shenzhen Gangshen Technology Company Ltd. ("Shenzhen") for property damage to their home caused by a fire ignited by a defective hoverboard the Garbers purchased through Amazon's online marketplace, Amazon.com. Plaintiffs sued in state court alleging one count of strict liability and one count of negligence. Amazon removed the case to federal court on the basis of diversity jurisdiction and now moves for summary judgment on both counts. For the following reasons, Amazon's Motion for Summary Judgment [Dkt. 39] is granted.

I. STATEMENT OF FACTS

The Court draws the relevant facts from the parties' Local Rule ("LR") 56.1 statements of undisputed material facts and supporting exhibits: Amazon's Rule 56.1(a) Statement of Undisputed Material Facts (Dkt. 40), Plaintiffs' Rule 56.1(b) Response Statement of Disputed Material Facts (Dkt. 42), and Defendant Amazon.com, Inc.'s Reply to Plaintiffs' LR 56.1(b) Response and Response to Plaintiff's Additional Facts (Dkt. 45). The facts set forth below are supported by the record and, except where otherwise noted, are undisputed.

a. The Parties' Local Rule 56.1 Statements

The Court must begin by addressing the parties' Local Rule 56.1 statements. In many instances, the Garbers dispute or deny Amazon's material facts but fail to cite any evidence in the record supporting their disagreements. (Dkt. 42 ¶¶ 3, 7, 8, 9, 10, 22.) Facts that are denied without evidentiary support are undisputed for purposes of summary judgment. See L.R. 56.1(a), (b)(3)(B) (non-movant's disagreements with moving party's facts "shall contain ... specific references to the affidavits, parts of the record, and other supporting materials relied upon"); see also Ammons v. Aramark Uniform Services, Inc. , 368 F.3d 809, 817 (7th Cir. 2004) ("[W]here a non-moving party denies a factual allegation by the [moving party], that denial must include a specific reference to the affidavit or other part of the record that supports such a denial"). Federal Rule of Civil Procedure 56(e) similarly provides that if the nonmoving party "fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for the purposes of the motion." Fed. R. Civ. P. 56(e)(2). Where the Garbers deny Amazon's facts but do not support their denials with evidentiary support, Amazon's facts are deemed admitted.

In other instances, the Garbers "deny that competent evidence has been submitted to substantiate" Amazon's facts, (Dkt. 42 ¶¶ 8, 11-21), but they offer no evidence beyond this conclusory statement that refutes the admissible facts set forth by the sworn declaration of Damon Jones, Amazon's then-Manager of Product Safety and Recalls (Dkt. 40-1), which Amazon relies on extensively. Competent evidence includes facts set forth by affidavit or declaration. Fed. R. Civ. P. 56(c)(4). As long as a competent declarant makes statements based upon personal knowledge, as Mr. Jones has here, the declaration can support a summary judgment motion. Hill v. Tangherlini , 724 F.3d 965, 967-68 (7th Cir. 2013) ; see also, e.g. , Lance v. Bd. Of Educ. of City of Chi. , No. 14 C 8709, 2016 WL 4417074, at *4 (N.D. Ill. Aug. 19, 2016) ("Plaintiff calls the Board's declarations ‘self-serving,’ but be that as it may, these declarations are competent evidence of matters within the personal knowledge of the declarants, and plaintiff has not offered countervailing evidence."). Where the Garbers dispute Amazon's material facts solely on the ground that Amazon's facts are not supported by competent evidence, the Court deems those facts to be admitted. And of course, where the Garbers cite evidence in the record that does not actually controvert Amazon's facts, or respond to Amazon's facts with legal argument, those facts have been deemed admitted as well. See L.R. 56.1 (b)(3)(B).

Finally, the Court notes that the Garbers set forth many facts and cite many exhibits in their brief opposing summary judgment that are nowhere to be found in their Local Rule 56.1(b)(3)(C) statement of facts. (See generally Dkt. 43 at 1-12; Dkt. 42.) Those facts have been disregarded. On summary judgment, the Court considers facts only if they are presented in a compliant Local Rule 56.1 statement or response. See Midwest Imps., Ltd. v. Coval , 71 F.3d 1311, 1317 (7th Cir. 1995) (holding that the predecessor to L.R. 56.1(b)(3) is "the only acceptable means of ... presenting additional facts to the district court"); see also Thornton v. M7 Aerospace LP , 796 F.3d 757, 769 (7th Cir. 2015) (a "district court is within its discretion to strictly enforce compliance with its local rules regarding summary-judgment motions ... including by disregarding evidentiary documents because a required statement of facts was not filed"); see also, e.g. , Perez v. Town of Cicero , No. 06 C 4981, 2011 WL 4626034, at *2 (N.D. Ill. Sept. 30, 2011) ("Under settled law, facts asserted in a brief but not presented in a Local Rule 56.1 statement are disregarded in resolving a summary judgment motion."); Byrd-Tolson v. Supervalu, Inc. , 500 F.Supp.2d 962, 966 (N.D. Ill. 2007) ("[F]acts are properly presented through the framework of the Rule 56.1 statements, and not through citation in the briefs to raw record material, as that does not promote a reasoned process to air and evaluate the parties' respective positions concerning either: (a) whether there are disputed material facts in the record; or (b) evidentiary objections concerning such matters").

b. Facts Not Subject to Genuine Dispute

Amazon operates an online marketplace at www.amazon.com, where users across the world can access the site to view and purchase products offered for sale. (Dkt. 40 ¶¶ 7, 22.) The marketplace is an information service that Amazon provides to facilitate commerce between buyers and sellers. (Id. ¶¶ 8, 22.) Amazon sells some of its own products on its marketplace, but more than a million third-party sellers sell their own products through the marketplace. (Id. ¶ 9.)

i. Amazon's Business Solutions Agreement and "A-to-Z Guarantee"

Amazon requires all third-party sellers using its marketplace to assent to its "Amazon Services Business Solutions Agreement" ("BSA"), which Defendant Shenzhen did. (Dkt. 42 ¶ 1.) The BSA requires third-party sellers like Shenzhen to adhere to Amazon's policies covering many aspects of sales on the online marketplace. (Id. ¶ 2.)

The BSA requires that third-party sellers "source, offer, sell and fulfill" the products they sell on the online marketplace. (Dkt. 40-1 at 13 § S-2.1.) Third-party sellers must "maintain price parity" between products they sell on the Amazon online marketplace and products they sell through other sales channels by ensuring that the price and offer terms (including shipping charges, rebates, discounts, terms of cancellation, and return and refund policies) are "at least as favorable" for Amazon customers as the "most favorable terms" are for customers of other sales channels. (Id. at 14 § S-4.) The BSA also requires third-party sellers to provide Amazon customers with customer service that is "at least as responsive and available and offers at least the same level of support as the most favorable customer services" offered through third-party sellers' other sales channels. (Id. ) The way the agreement works in relevant part is as follows:

1.) The seller decides what to sell and sources the product from the manufacturer or upstream distributor. The Terms state that the seller will "source, offer, sell and fulfill [its] Seller-Fulfilled Products." (Jones Decl. ¶ 12, Ex. B at § S-2.1)

2.) The seller is "responsible for any non-conformity or defect in, or any public or private recall of, any of [its] Products." (Jones Decl., Ex. B at § S-3.1)

3.) The seller provides the product description displayed to the buyer. Sellers must provide "accurate and complete Required Product Information for each product or service that [it] offer[s] through any Amazon Site and promptly update that information as necessary to ensure it at all times remains accurate and complete." (Jones Decl. ¶ 12, Ex. B at § S-11)

4.) The seller sets the price.(SF¶ 18; Jones Decl. ¶ 1 2)

5.) The seller is responsible for ensuring the product is properly packaged and complies with all applicable laws. The seller must "ensure that [its] Materials, [its] Products (including packaging) and [its] offer and subsequent sale of any of the same on any Amazon Site comply with all applicable Laws (including all minimum age, marking and labeling requirements) and do not contain any sexually explicit (except to the extent expressly permitted under [Amazon's] applicable Program Policies), defamatory or obscene materials." (Jones Decl. ¶ 12, Ex. B at § S-1.1)

6.) Unless the seller participates in the Fulfillment by Amazon program ("FBA"), the seller holds its own inventory. The seller decides the means and price of shipping, packages the product for shipment, and ships the product to the buyer. (The FBA service involves logistics services in which third-party sellers pay to store their inventory in an Amazon fulfillment center. This service is not relevant here because Shenzhen sold and shipped the hoverboard directly to Mrs.Garber.) (Jones Decl. ¶ 12)

7.) The seller offers any warranty of its choosing. Amazon does not warrant third-party products sold on the

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