McCarthy v. Amazon.com

• Docket Number: C23-0263JLR
• Decision Date: 25 August 2023
• Parties: NICOLAS MCCARTHY, et al., Plaintiffs, v. AMAZON.COM, INC., Defendant.
• Court: U.S. District Court — Western District of Washington

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NICOLAS MCCARTHY, et al., Plaintiffs,
v.
AMAZON.COM, INC., Defendant.

No. C23-0263JLR

United States District Court, W.D. Washington, Seattle

August 25, 2023

ORDER

JAMES L. ROBART United States District Judge

I. INTRODUCTION

Before the court is Plaintiffs Nicholas McCarthy, Martinique Maynor, Laura Jonsson, and Steinn Jonsson's^[1](collectively, “Plaintiffs”) motion to (1) amend the June 27, 2023 final judgment granting Defendant Amazon.com, Inc.'s (“Amazon”) motion to dismiss and dismissing Plaintiffs' first amended complaint with prejudice, (2) grant

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Plaintiffs' leave to file a second amended complaint, or, in the alternative, (3) certify questions to the Washington State Supreme Court. (Mot. (Dkt. # 62); Reply (Dkt. # 66).) Amazon opposes the motion. (Resp. (Dkt. # 65); see also Def. Not. (Dkt. # 67).) The court has reviewed the parties' submissions, the balance of the record, and applicable law. Being fully advised,^[2]the court DENIES Plaintiffs' motion.

II. ANALYSIS^[3]

This case arises from the deaths by suicide of two teenagers, Ethan McCarthy and Kristine Jonsson, caused by intentionally ingesting sodium nitrite sold by Loudwolf, Inc. (“Loudwolf Sodium Nitrite” or “Sodium Nitrite”) on Amazon.com. (See generally Am. Compl.) The court construed Plaintiffs' first amended complaint to alleges the following claims against Amazon: negligent product liability and intentional concealment under the Washington Product Liability Act (“WPLA”), RCW 7.72.010, et seq.; common law negligence; and common law negligent infliction of emotional distress (“NIED”).^[4] (See 6/27/23 Order at 9-11; Am. Compl. ¶¶ 232-51 (alleging negligent and strict product

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liability, common law negligence, and common law NIED claims against Loudwolf and Amazon).) On June 27, 2023, the court granted Amazon's motion to dismiss and dismissed Plaintiffs' first amended complaint with prejudice and without leave to amend pursuant to Federal Rule of Civil Procedure 12(b)(6). (See generally 6/27/23 Order; Judgment (Dkt. # 61).)

Plaintiffs' instant motion asks the court to amend the June 27, 2023 final judgment entered in favor of Amazon pursuant to Federal Rule of Civil Procedure 59(e) and to grant them leave to amend their first amended complaint. (See generally Mot.) Alternatively, Plaintiffs ask the court to certify two questions to the Washington State Supreme Court. (See generally id.) The court begins by setting forth the standard of review governing Federal Rule of Civil Procedure 59(e) motions before turning to its analysis of Plaintiffs' Rule 59(e) motion and other requests.

A. Standard of Review for Rule 59(e) Motions

Altering or amending a judgment under Rule 59(e) is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). A rule 59(e) motion “should not be granted, absent highly unusual circumstances.” Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). There are four circumstances that generally qualify: “(1) the motion is necessary to correct manifest errors of law or fact upon which the judgment is based; (2) the moving party presents newly discovered or previously unavailable evidence; (3) the motion is necessary to prevent manifest injustice; or (4) there is an intervening change in controlling law.” Turner v. Burlington N. Santa Fe R.R Co.,

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338 F.3d 1058, 1063 (9th Cir. 2003) (quoting McDowell v. Calderon, 197 F.3d 1253, 1254 n.1 (9th Cir. 1999)). This is a “high hurdle” for the moving party to meet. Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001).

In the absence of new evidence or a change in controlling law, a “Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.” Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (emphasis in original); Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008); City of Fresno v. United States, 709 F.Supp.2d 888, 916 (E.D. Cal. 2010) (“Rule 59(e) ‘does not provide a vehicle for a party to undo its own procedural failures ....'” (quoting DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001))). Rule 59(e) motions are also “not vehicles permitting the unsuccessful party to ‘rehash' arguments previously presented.” Cachil Dehe Band of Wintun Indians v. California, 649 F.Supp.2d 1063, 1070-71 (E.D. Cal. 2009) (quoting United States v. Navarro, 972 F.Supp. 1296, 1299 (E.D. Cal. 1997), rev'd on other grounds, 160 F.3d 1254 (9th Cir. 1998)). “Ultimately, a party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.” Id. at 1071 (internal quotation marks omitted) (quoting United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001)).

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B. Plaintiffs' Rule 59(e) Motion to Amend the Judgment

Plaintiffs assert that the court should amend the judgment because (1) the judgment is based on manifest errors of law and fact and (2) newly discovered evidence justifies amendment.^[5](See Mot. at 8-18; Reply at 1-4.)

1. Whether the Court Committed Manifest Errors of Law

Plaintiffs contend that the court committed manifest errors of law by (1) holding that Plaintiffs must show the Sodium Nitrite was a defective product before Amazon can be held liable for seller negligence under the WPLA (Mot. at 9-11; Reply at 1-2), and (2) “assum[ing] that Amazon's removal of product reviews was the sole basis for” Plaintiffs' WPLA intentional concealment claim (Mot. at 11 (contending that the claim is based on other facts that do not treat Amazon as a publisher, and thus, should not have been dismissed under Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230); Reply at 2-3). Amazon argues that Plaintiffs' arguments fail because (1) Plaintiffs could have raised these arguments in their opposition to Amazon's motion to dismiss and (2) Plaintiffs' criticisms do not rise to the level of manifest error. (Resp. at 2-4.)

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Plaintiffs fail to meet Rule 59(e)'s demanding standard. First, Plaintiffs' arguments regarding the WPLA's standard for seller negligence claims are improperly raised under Rule 59(e) because they either “relitigate old matters” or make new “arguments . . . that could have been raised” in the prior briefing. Guenther v. Lockheed Martin Corp., 972 F.3d 1043, 1058 (9th Cir. 2020); Kona Enterps., 229 F.3d at 890 (“A Rule 59(e) motion may not be used to raise arguments [that] could reasonably have been raised earlier.”). In its motion to dismiss, Amazon argued that the “text, history, and purpose of the WPLA make clear that a ‘seller' cannot be liable in ‘negligence' unless the product at issue was defective.” (MTD (Dkt. # 47) at 11.) Instead of disputing Amazon's argument, Plaintiffs merely stated that “the Complaint alleges product defects: that the Sodium Nitrite had inadequate warnings.” (MTD Resp. (Dkt. # 50) at 17.) The court treated Plaintiffs' response as effectively conceding the issue and, after considering the case law and legislative history cited by Amazon, independently reached the same conclusion. (6/27/23 Order at 12.) Accordingly, the court has already thoroughly considered this issue and Plaintiffs cannot claim manifest error based on their “disagreement with the [c]ourt's decision,” Westlands Water Dist., 134 F.Supp.2d at 1131, and “arguments [they] could have raised in their opposition to the motion” to dismiss. Anglin v. Merchants Credit Corp., No. C18-0507BJR, 2020 WL 4816025, at *1 (W.D. Wash. Aug. 19, 2020), aff'd, No. 20-35820, 2022 WL 964216 (9th Cir. Mar. 30, 2022); see also Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001) (“A district court does not abuse its discretion when it disregards legal arguments made for the first time on a motion to amend ....”).

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Second, Plaintiffs' arguments regarding their intentional concealment claim similarly fail because they “could have [been] raised in [Plaintiffs'] opposition to the motion” to dismiss. Anglin, 2020 WL 4816025, at *1. In response to Amazon's motion to dismiss, which argued that the WPLA intentional concealment claim was based solely on Amazon's removal of negative product reviews and was therefore barred by Section 230 of the CDA (see MTD at 16-17), Plaintiffs could have identified the other bases of their WPLA intentional concealment claim and explained why Section 230 of the CDA would not bar such claims. Instead, Plaintiffs' response to Amazon's argument simply stated, without citations to the first amended complaint, that the “facts pertaining to the product page” “are not themselves elements compromising the claims” but “illustrate Amazon's notice, failure to act, noncompliance with its own safety standards, and design features that normalize and push the product for suicide.” (See MTD Resp. at 28-29.)

Given Plaintiffs' failure to specifically identify any other basis for their intentional concealment claim, the court properly analyzed the intentional concealment claim as based solely on the removal of product reviews because that was the only intentional conduct alleged in the product liability claim section of the first amended complaint.^[6]

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(See Am. Compl. ¶ 241.j.) Because a Rule 59(e) motion is not properly granted where the argument is one that could have been raised, but was not raised, before judgment was entered, the court denies Plaintiffs' Rule 59(e) motion on this ground. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (“A motion for reconsideration may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the...