Kelly v. Amazon.com

• Decision Date: 12 December 2022
• Docket Number: Civil action 3:22-cv-00821
• Parties: BRIAN KELLY, Plaintiff, v. AMAZON.COM, INC Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

BRIAN KELLY, Plaintiff,
v.
AMAZON.COM, INC Defendant.

Civil action No. 3:22-cv-00821

United States District Court, M.D. Pennsylvania

December 12, 2022

MEMORANDUM

JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE

The pro se plaintiff, Brian Kelly (“Kelly”), an author and publisher, filed a complaint in the Court of Common Pleas of Luzerne County, Pennsylvania, on May 4, 2022, (Doc. 1-1) against Amazon.com, Inc. (“Amazon”) pertaining to Amazon's termination of his Kindle Direct Publishing (“KDP”) account in 2021. The action was timely removed to this court on May 24, 2022, by Amazon. On May 31, 2022, Amazon moved to compel arbitration and stay the action (Doc. 5) under the terms of an arbitration agreement.

Kelly filed a second, subsequent complaint in the Court of Common Pleas of Luzerne County, Pennsylvania, and Amazon removed it to this court, where it was docketed as Civil Action No. 3:22-cv-1083. Amazon similarly moved the court to compel arbitration and stay that action.

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Because we concluded that both actions involve common questions of law and fact, we have consolidated the actions under Fed.R.Civ.P. 42(a).^[1](Doc. 17).

The parties have consented to proceed before the undersigned pursuant to 28 U.S.C. § 636(c). For the reasons that follow, we will grant the motion.

I. Statement of Facts

In his complaint, Kelly alleged that Amazon breached an implied contract with him to publish his books. His claims consist of five separate counts for breach of contract, unjust enrichment, fraudulent and deceptive business practices, conversion, and unlawful termination and cancellation. For relief, he seeks monetary damages in excess of $78,000,000 and punitive damages.

On May 31, 2022, Amazon filed a motion to compel arbitration and stay action. (Doc. 5). Attached to the motion is a declaration of Rebecca Hartley, a paralegal in the litigation and recovery group at Amazon. (Doc.

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5-2).^[2]In its brief in support, Amazon, relying upon the Hartley declaration asserts that when Kelly created his KDP and CreateSpace accounts, as well as each time he published a title using his KDP account, he agreed to arbitrate any dispute. (Doc. 6). Amazon also contends that on April 16, 2016, Kelly created a KDP account by using his email address, bkelly@ptd.net, which requires authors of self-published works, like Kelly, to accept KDP Publishing Terms and Conditions (“KDP Terms” or “Terms”) to create an account.^[3]A registrant is required to click an “Agree” button when the Terms are presented to him on the webpage stating he accepts the displayed KDP Terms. Amazon maintains that Kelly could not have created his KDP account without clicking the “Agree” button, indicating his consent to these KDP Terms. Included within the KDP Terms displayed, and to which Kelly agreed, was a mandatory arbitration provision, the pertinent terms of which provided

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that: “Any dispute or claim relating in any way to this Agreement will be resolved by binding arbitration, rather than in court.” (Doc. 5-4, at 11). Further, the arbitration provision required that the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., and federal law apply to the agreement, and that the arbitration will be conducted under the consumer rules of the American Arbitration Association.^[4] (Id.; Doc. 6, at 9-10).

In addition to the KDP account, Kelly also established a CreateSpace account on April 16, 2016, using the email address bkelly@kellyconsulting.com. Like the KDP account, the CreateSpace registration required authors to accept the CreateSpace Services Agreement by clicking the “Agree” button. The CreateSpace terms similarly contained a mandatory arbitration agreement as recited above regarding the KDP Terms.

Finally, each time Kelly published a title using his KDP account, he agreed to arbitrate and dispute. By clicking “Publish,” Kelly agreed to the KDP terms and conditions.

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Amazon removed the action to this Court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. Amazon maintains that all the claims made by Kelly are subject to arbitration under the arbitration provision and they fall within its scope. Amazon has moved to compel arbitration and stay action under the FAA, 9 U.S.C. § 2

In his brief in opposition to the motion,^[5] Kelly raises three arguments. First, he contends that the agreement is “procedurally unconscionable” because he never saw the arbitration provision; he otherwise provides no basis for this unconscionability argument. Second, Kelly asserts that Amazon waived the right to arbitrate by removing the case to federal court. Third, Kelly complains about Amazon's conduct in terminating his KDP account. (Doc. 9). The motion has been fully briefed and is ripe for disposition.

II. Legal Standards

The FAA provides that, in any contract involving interstate

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commerce, a provision in which the parties agree to arbitrate their disputes shall be “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “Because FAA provisions are mandatory, courts must compel arbitration when a valid arbitration agreement exists.” Hightower v. GMRI, Inc., 272 F.3d 239, 241 (4th Cir. 2001). Because “[a]rbitration is a matter of contract between the parties,” a judicial mandate to arbitrate must be predicated upon the parties' consent...