Case 2:22-cv-01599-KKE Document 98 Filed 05/06/24 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`Plaintiff(s),
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`v.
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`STEVEN FLOYD,
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`AMAZON.COM INC., et al.,
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`Defendant(s).
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`CASE NO. C22-1599-KKE
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`ORDER GRANTING MOTION FOR
`LEAVE TO AMEND
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`This matter comes before the Court on a motion for leave to amend the complaint, filed by
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`Plaintiff’s class counsel. Dkt. No. 80. The Court has considered the parties’ briefing,1 the oral
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`argument of counsel, and the remainder of the record. For the reasons explained herein, the Court
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`grants the motion for leave to amend.
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`I. BACKGROUND
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`Plaintiff Steven Floyd filed this putative class action in November 2022, alleging that the
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`Global Tenets Agreement between Defendants Apple Inc. and Amazon.com Inc. violates Section
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`1 of the Sherman Act, 15 U.S.C. § 1. Dkt. No. 1. Defendants filed motions to dismiss in February
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`2023 (Dkt. Nos. 30, 32), and Floyd filed an amended complaint in response (Dkt. No. 37).
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`Defendants filed another round of motions to dismiss in March 2023 (Dkt. Nos. 42, 43), which
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`were granted in part and denied in part in June 2023. See Dkt. No. 61.
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`1 This order refers to the parties’ briefing using the CM/ECF page numbers.
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`ORDER GRANTING MOTION FOR LEAVE TO AMEND - 1
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`Case 2:22-cv-01599-KKE Document 98 Filed 05/06/24 Page 2 of 10
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`Since then, the parties have worked to resolve discovery-related disputes, some of which
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`have warranted Court intervention. See Dkt. Nos. 53, 70, 74, 77. In February 2024, class counsel
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`filed a motion to amend the complaint to add class representatives because Floyd “recently ceased
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`responding to inquiries from counsel for the proposed class[.]” Dkt. No. 80 at 5. The motion
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`proposes amending the complaint to list Jolene Furdek and Jonathan Ryan as new class
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`representatives asserting the same Sherman Act claim, on the same facts alleged in the first
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`amended complaint. Id.; Dkt. No. 81-4. The proposed amended complaint also omits the
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`allegations that were dismissed in the order granting in part the motions to dismiss, without
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`waiving the right to challenge the dismissal on appeal. See Dkt. No. 81-4 at 14 n.15.
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`Defendants oppose the motion for leave to amend on a variety of grounds (Dkt. No. 86),
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`but for the following reasons, the Court grants the motion.
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`II. ANALYSIS
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`A.
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`Legal Standards
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`A party may amend its pleading once as a matter of course, and thereafter “only with the
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`opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court should
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`freely give leave when justice so requires.” Id. A court “considers the following five factors to
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`assess whether to grant leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing
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`party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint.”
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`In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013) (cleaned
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`up), aff’d sub nom. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015). “The opposing party bears
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`the burden to show why leave to amend should not be granted.” Robertson v. Bruckert, 568 F.
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`Supp. 3d 1044, 1047 (N.D. Cal. 2021).
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`If a court’s scheduling order sets forth a deadline for amending the pleadings, no post-
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`deadline amendment is permitted unless the court first finds good cause to amend the case
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`ORDER GRANTING MOTION FOR LEAVE TO AMEND - 2
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`Case 2:22-cv-01599-KKE Document 98 Filed 05/06/24 Page 3 of 10
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`schedule. See Fed. R. Civ. P. 16(b)(4); Kamal v. Eden Creamery, LLC, 88 F.4th 1268, 1277 (9th
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`Cir. 2023). Good cause exists where the moving party is diligent in requesting a modification.
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`Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–09 (9th Cir. 1992).
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`“Although the existence or degree of prejudice to the party opposing the modification
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`might supply additional reasons to deny a motion [for leave to amend], the focus of the inquiry is
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`upon the moving party’s reasons for seeking modification,” and “[i]f that party was not diligent,
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`the inquiry should end.” Johnson, 975 F.2d at 609.
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`To demonstrate diligence under Rule 16’s “good cause” standard, the movant may
`be required to show the following: (1) that he was diligent in assisting the court in
`creating a workable Rule 16 order; (2) that his noncompliance with a Rule 16
`deadline occurred or will occur, notwithstanding his diligent efforts to comply,
`because of the development of matters which could not have been reasonably
`foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3)
`that he was diligent in seeking amendment of the Rule 16 order, once it became
`apparent that he could not comply with the order.
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`Morgal v. Maricopa Cnty. Bd. of Supervisors, 284 F.R.D. 452, 460 (D. Ariz. 2012) (cleaned up).
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`“Only after the moving party has demonstrated diligence under Rule 16 does the court apply the
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`standard under Rule 15 to determine whether the amendment [is] proper.” Hood v. Hartford Life
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`& Accident Ins. Co., 567 F. Supp. 2d 1221, 1224 (E.D. Cal. 2008).
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`“To permit a party to disregard a Rule 16 order by an appeal to the standards of Rule
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`15 would ‘undermine the court’s ability to control its docket, disrupt the agreed-upon course of
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`the litigation, and reward the indolent and the cavalier.’” Eckert Cold Storage, Inc. v. Behl, 943
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`F. Supp. 1230, 1233 (E.D. Cal. 1996) (quoting Johnson, 975 F.2d at 610–11). A determination of
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`whether good cause exists to modify a case schedule is committed to the broad discretion of the
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`district court. See C.F. ex rel. Farman v. Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th
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`Cir. 2011).
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`ORDER GRANTING MOTION FOR LEAVE TO AMEND - 3
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`Case 2:22-cv-01599-KKE Document 98 Filed 05/06/24 Page 4 of 10
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`B.
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`Adjudication of Plaintiff’s Adequacy as a Class Representative is Premature.
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`Before turning to consider the motion for leave to amend under the applicable Federal
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`Rules of Civil Procedure, the Court first addresses Defendants’ primary argument in opposition,
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`which is that Floyd is an inadequate named Plaintiff. Specifically, Defendants argue that because
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`Floyd was never qualified to represent the class in the first place, “[s]ubjecting Defendants to the
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`burdens of litigation for over a year with a plaintiff who is an inadequate representative of the
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`putative class, while simultaneously refusing to produce documents or offer dates for deposition,
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`is conduct that makes amendment inappropriate.” Dkt. No. 86 at 10. According to Defendants,
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`the motion to amend is not simply a motion to add or substitute a class representative, but should
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`be considered a “back-door attempt to begin the action anew.” Id. (quoting Lidie v. State of Cal.,
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`478 F.2d 552, 555 (9th Cir. 1973)).
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`But whether Floyd is an adequate representative of the putative class is not before the Court
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`at this point in the litigation, and Defendants will have an opportunity to fully litigate this issue in
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`the context of a motion for class certification. Defendants have not shown that Floyd’s potential
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`inadequacy as a class representative is an inherent defect in his party status akin to a lack of
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`standing or mootness, such that there is no live case or controversy before the Court. In the absence
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`of an inherent defect in Floyd’s claims, the Court will allow amendment of the complaint to add
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`additional named plaintiffs. See, e.g., Kirby v. McMenamins Inc., C22-5168-BHS-MLP, 2023 WL
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`4623988 (W.D. Wash. July 19, 2023); Fife v. Sci. Games Corp., No. 2:18-cv-00565-RBL, 2020
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`WL 4933959, at *1–2 (W.D. Wash. Aug. 24, 2020) (finding that a putative class action is not
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`mooted when a sole named plaintiff seeks to withdraw for personal reasons but can be replaced
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`immediately); Castillo v. United Rentals (N. Am.), Inc., No. C17-1573JLR, 2018 WL 3429936, at
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`*3 (W.D. Wash. July 16, 2018) (permitting a pre-certification substitution of the named plaintiff
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`ORDER GRANTING MOTION FOR LEAVE TO AMEND - 4
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`Case 2:22-cv-01599-KKE Document 98 Filed 05/06/24 Page 5 of 10
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`where the current sole named plaintiff’s claims persist (had not been settled or dismissed), and
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`counsel could produce a substitute immediately).
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`The absence of an adjudication of Floyd’s adequacy distinguishes this case from cases cited
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`by Defendants. For example, Defendants rely on Lidie, 478 F.2d at 555, where the Ninth Circuit
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`upheld a denial of a motion to intervene because, “where the original plaintiffs were never qualified
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`to represent the class, a motion to intervene represents a back-door attempt to begin the action
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`anew, and need not be granted.” But here, Floyd has not been found unqualified to represent the
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`putative class. Although Defendants vigorously dispute Floyd’s adequacy as a class
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`representative, the Court finds that it would be premature to adjudicate this issue in the context of
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`a motion for leave to amend.
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`Likewise, Defendants ask the Court to follow Miller v. Mercedes-Benz USA LLC, No. CV
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`06-0532 ABC (JTLX), 2009 WL 1393488, at *1–2 (C.D. Cal. May 15, 2009), but in that case, the
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`sole named plaintiff included in her motion for class certification a request to add an additional
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`named plaintiff to cure her own conflict of interest in serving as a class representative. The Miller
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`court denied the current named plaintiff’s motion for class certification because she could not fairly
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`and adequately protect the interests of the class, and found that her last-minute attempt to add a
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`named plaintiff was a “bait-and-switch tactic.” Id. at *2. Miller is distinguishable from this case
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`because the motion before that court requested class certification, which required the court to
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`determine whether the sole named plaintiff was an adequate representative. This case has not
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`proceeded to that stage of litigation, and the Court declines to consider issues now, on this record
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`and with limited briefing, that it will have the opportunity to consider in full at class certification.
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`C.
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`There is Good Cause to Amend the Case Schedule.
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`The Court now considers whether the motion for leave to amend should be granted under
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`the applicable Federal Rules of Civil Procedure. First, the Court must resolve the parties’ dispute
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`ORDER GRANTING MOTION FOR LEAVE TO AMEND - 5
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`Case 2:22-cv-01599-KKE Document 98 Filed 05/06/24 Page 6 of 10
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`as to whether Rule 15 (addressing leave to amend pleadings) and/or Rule 16 (addressing
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`modifications to a case schedule) applies to the motion.
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`Here, the case schedule does not set out a deadline for either amending pleadings or adding
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`parties, but sets deadlines only as to substantial completion of productions, fact discovery cutoff,
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`disclosure of expert reports, and the briefing of a class-certification motion. See Dkt. No. 68.
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`Although the motion for leave to amend the complaint is therefore not technically untimely under
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`this case schedule, Defendants nonetheless contend that the motion for leave to amend should be
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`considered under Rule 16 because granting it would necessitate modifying the scheduling order:
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`the deadlines for substantial completion of productions (April 3, 2024) and the fact discovery
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`cutoff (July 8, 2024) cannot be met if the complaint is amended. Dkt. No. 86 at 12. Defendants
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`argue that even if class counsel agrees to treat all discovery requests on Floyd as if they had been
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`served on the new representatives, as counsel has offered, Defendants would still want to serve
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`discovery requests tailored to the new representatives, and they would not have been able to
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`respond to those requests by April 3. Id.
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`Indeed, while the motion for leave to amend was pending, the parties filed a stipulated
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`motion to suspend the April 3 deadline and indicated that they will confer regarding a new case
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`schedule after the Court has resolved all motions currently pending. See Dkt. No. 93. Under these
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`circumstances, where even the filing of a motion for leave to amend has necessitated adjustment
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`of the case schedule, the Court finds that Rule 16 applies and good cause must be shown to modify
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`the case schedule, before the Court will consider whether the motion for leave to amend should be
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`granted under Rule 15. See Paz v. City of Aberdeen, No. C13-5104 RJB, 2013 WL 6163016, at
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`*2–3 (W.D. Wash. Nov. 25, 2013).
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`The good cause standard has been easily met here. Class counsel diligently moved to
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`substitute the new representatives after Floyd unexpectedly stopped communicating with them.
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`ORDER GRANTING MOTION FOR LEAVE TO AMEND - 6
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`Case 2:22-cv-01599-KKE Document 98 Filed 05/06/24 Page 7 of 10
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`Counsel last communicated with Floyd on January 16, 2024 (Dkt. No. 81-1 at 2) and moved to
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`amend the complaint on February 29, 2024. Dkt. No. 80. That span of time reflects diligence.
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`See, e.g., Kirby, 2023 WL 4623988, at *4 (finding that counsel had been diligent in bringing the
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`motion for leave to amend less than two months after receiving contact information for putative
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`class members and less than a month after the new class representatives expressed interest in
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`becoming class representatives and retained counsel). Moreover, amendment permits this case to
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`move forward after Floyd apparently lost interest in continuing to participate, which constitutes
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`good cause for amendment. See Fife, 2020 WL 4933959, at *3.
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`Defendants suggest that counsel was not diligent in selecting Floyd as a named plaintiff in
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`the first place, because counsel should have known from this case’s inception (or at least since the
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`motions to dismiss were granted in part) that Floyd does not adequately represent the class due to
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`his shopping behavior. Dkt. No. 86 at 14–15. Accepting this argument would require the Court
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`to consider Floyd’s adequacy as a class representative prematurely. Again, Floyd’s adequacy as a
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`class representative has not been adjudicated to date and will not be adjudicated on an incomplete
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`record in the context of this motion.
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`D.
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`Justice Requires Leave to Amend the Complaint.
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`The Court has found good cause to amend the case schedule, and now turns to consider
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`whether the motion for leave to amend the complaint should be granted under Rule 15. As noted
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`above, Defendants bear the burden of showing that justice requires denying the motion for leave
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`to amend. Defendants contend that the motion should be denied in light of undue delay and
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`prejudice, but for the following reasons, the Court disagrees.
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`1. Undue Delay
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`First, Defendants argue that class counsel unduly delayed in seeking amendment because
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`they should have known earlier that Floyd was an inadequate class representative. Dkt. No. 86 at
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`ORDER GRANTING MOTION FOR LEAVE TO AMEND - 7
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`Case 2:22-cv-01599-KKE Document 98 Filed 05/06/24 Page 8 of 10
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`14–15. As stated supra, that is not the grounds upon which amendment is requested, and the Court
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`will not assume Floyd’s inadequacy as a class representative simply because Defendants assert it,
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`nor will the Court adjudicate that issue without the benefit of full briefing. Because Defendants
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`have not identified a point in this litigation where Floyd’s inadequacy as a class representative was
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`made plain to class counsel, the Court will not start the diligence clock running at a point earlier
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`than the time when Floyd stopped communicating with counsel. And for the reasons stated supra
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`with respect to Rule 16, and the Court finds that counsel was diligent in filing this motion after
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`that time.
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`2. Prejudice
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`Second, Defendants argue that they would be prejudiced via the need to conduct new and/or
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`additional discovery that would not otherwise have been required had class counsel identified the
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`appropriate representatives in the first instance. Dkt. No. 86 at 14. Given that the parties have
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`recently agreed to suspend the discovery deadlines and discovery has not even closed under the
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`original deadlines, Defendants have not shown that permitting amendment would lead to
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`substantial prejudice. The cases Defendants cite to support a finding of undue prejudice involve
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`amendments sought after discovery had closed or after a motion for class certification was filed.
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`See Paz, 2013 WL 6163016, at *4; In re Flash Memory Antitrust Litig., No. C 07-0086 SBA, 2010
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`WL 2332081, at *17 (N.D. Cal. June 9, 2010).
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`Defendants also argue that the amendments are intended to “circumvent a potentially fatal
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`statute of limitations issue” and that Defendants “would be prejudiced by having to defend against
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`an untimely putative class action.” Dkt. No. 86 at 13. Defendants state that they did not raise this
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`issue in their motions to dismiss because resolving it requires deposing Floyd. Id. at 13 n.3. But
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`this issue is not squarely before the Court, and has not been briefed, given that Floyd has not yet
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`been deposed. The Court again declines to wade into substantive issues prematurely, without the
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`ORDER GRANTING MOTION FOR LEAVE TO AMEND - 8
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`Case 2:22-cv-01599-KKE Document 98 Filed 05/06/24 Page 9 of 10
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`benefit of full briefing and an adequate record, and the Court cannot find that Defendants are
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`prejudiced by having to defend this case while its timeliness is still an open question.
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`For all of these reasons, the Court finds that the motion for leave to amend is supported by
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`good cause and that Defendants have not shown that justice requires its denial. Because leave to
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`amend the complaint is granted, the motion to intervene in the alternative (Dkt. No. 80 at 14–16)
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`is denied as moot.
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`E.
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`The Parties Shall Confer Regarding a New Case Schedule.
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`Defendants request that if the Court grants leave to amend, the Court should also
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`stay discovery as to the Defendants for 90 days (and suspend the extant substantial
`completion deadline) to further the just and efficient resolution of this case.… This
`will allow Defendants to take initial discovery of the new representatives to
`determine if there is even a viable plaintiff in this case, and to establish amendment
`would not be futile. After the new representatives (or Floyd) meet their
`corresponding discovery obligations, then Defendants should have the opportunity
`to file a dispositive motion or continue with discovery on a revised schedule.
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`Dkt. No. 86 at 16. Class counsel’s reply objects to a discovery stay that would apply to Defendants
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`only, noting that Defendants “have not produced a single responsive document” to date. Dkt. No.
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`92 at 10.
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`As noted supra, after Defendants’ opposition to the motion for leave to amend was filed,
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`the parties filed a stipulated motion to suspend the case schedule until after the Court resolved the
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`pending motions. See Dkt. No. 93. The parties agreed that they would confer regarding a new
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`case schedule and, if necessary, set out a briefing schedule on a contested motion to modify the
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`schedule. Id. Thus, at this time, the Court finds that Defendants’ concern in their opposition
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`regarding the case schedule has been mooted by the subsequent stipulation. Defendants will have
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`an opportunity to address any concerns about schedule revisions either when conferring with class
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`counsel or when briefing a contested motion to modify the case schedule, if one is necessary.
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`//
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`ORDER GRANTING MOTION FOR LEAVE TO AMEND - 9
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`Case 2:22-cv-01599-KKE Document 98 Filed 05/06/24 Page 10 of 10
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`III. CONCLUSION
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`For these reasons, the Court GRANTS the motion for leave to amend. Dkt. No. 80. A
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`second amended complaint shall be filed no later than May 10, 2024.
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`The parties shall confer regarding case schedule modification and whether the statement of
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`discovery disputes filed on March 26, 2024 (Dkt. No. 90) should be re-briefed in light of this order.
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`The parties shall file either a stipulation on these issues or set forth a briefing schedule on these
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`issues, no later than May 13, 2024. The clerk is directed to terminate the dispute (Dkt. No. 90) at
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`this time, subject to reactivation by the Court after reviewing the parties’ submission.
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`Plaintiffs are also granted leave to file a motion to compel with regard to the disputes
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`outlined in the joint statement filed on March 22, 2024. Dkt. No. 89. As discussed at the discovery
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`conference, the Court finds that the issues to be resolved in that statement of disputes warrants full
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`briefing. The clerk is directed to terminate the dispute (Dkt. No. 89) as a motion at this time.
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`Dated this 6th day of May, 2024.
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`A
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`Kymberly K. Evanson
`United States District Judge
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`ORDER GRANTING MOTION FOR LEAVE TO AMEND - 10
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