Jennifer Miller v. amazon.com, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 1, 2023
• Docket: 21-36048
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JENNIFER MILLER; EMAD AL- No. 21-36048 KAHLOUT; JOSE GRINAN; KELLY KIMMEY; JUMA LAWSON; HAMADY D.C. No. 2:21-cv-00204-BJR BOCOUM; PHILIP SULLIVAN; KIMBERLY HALO; CHRISTOPHER CAIN; GARY GLEESE; CLARENCE MEMORANDUM* HARDEN; STEVEN MORIHARA; SHARON PASCHAL,

Plaintiffs-Appellees,

v.

AMAZON.COM, INC.; AMAZON LOGISTICS, INC.,

Defendants-Appellants.

Appeal from the United States District Court for the Western District of Washington Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted March 27, 2023 Seattle, Washington

Before: NGUYEN and HURWITZ, Circuit Judges, and EZRA,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. Amazon.com and Amazon Logistics (“Amazon”) appeal the district court’s

order denying Amazon’s motion to compel arbitration because plaintiffs were a

“class of workers engaged in . . . interstate commerce” under § 1 of the Federal

Arbitration Act (“FAA”). 9 U.S.C. § 1. We have jurisdiction under 9 U.S.C. §

16(a)(1)(A) and (B) and 28 U.S.C. § 1292(a)(1). We review the denial of a motion

to compel arbitration de novo. Cox v. Ocean View Hotel Corp., 533 F.3d 1114,

1119 (9th Cir. 2008). We affirm.

Plaintiffs worked as Amazon Flex delivery drivers making last-leg deliveries

of goods shipped from other states or countries to consumers, as well as deliveries

of food, groceries, and packages stored locally that may be eligible for tips.

Plaintiffs allege that, between 2016 and 2019, Amazon failed to honor its promise

that workers would receive 100% of the tips that customers added for tip-eligible

deliveries, in violation of the Washington Consumer Protection Act and various

other state consumer protection laws.

1. We previously held in Rittmann v. Amazon.com, Inc. that Amazon

Flex delivery drivers, like plaintiffs here, are workers engaged in interstate

commerce because they deliver goods moving in interstate commerce to their final

destination. 971 F.3d 904 (2020), cert. denied, 141 S. Ct. 1374 (2021). Amazon

argues that Rittmann is no longer good law after the Supreme Court’s decision in

Southwest Airlines Co. v. Saxon, which held that airplane cargo workers were

2 within a “class of workers engaged in foreign or interstate commerce” even though

they did not physically move goods across borders. 142 S. Ct. 1783 (2022). But

we recently held that Rittman remains binding precedent after Saxon. See

Carmona Mendoza v. Domino’s Pizza, LLC, 73 F.4th 1135 (9th Cir. 2023).

2. Amazon next argues that even if Rittmann remains good law, the

drivers here are different from those in Rittmann because Amazon Flex drivers can

schedule two types of delivery blocks: last-mile deliveries and tip-eligible local

deliveries—and the latter do not involve interstate commerce. But this is the exact

same class of workers we discussed in Rittmann: Amazon Flex delivery drivers

who “are engaged to deliver packages from out of state or out of the country, even

if they also deliver food from local restaurants.” 971 F.3d at 917 n.7. We

concluded that these drivers are “engaged in interstate commerce, even if that

engagement also involves intrastate activities.” Id. As the Supreme Court made

clear in Saxon, the relevant question is what work “the members of the class, as a

whole, typically carry out,” which here includes last-mile deliveries. 142 S. Ct. at

1788.

Amazon further argues that the only relevant work for purposes of § 1 is the

tip-producing deliveries. But under the FAA, “class of workers” is defined by their

“contracts of employment.” 9 U.S.C. § 1. Amazon Flex delivery drivers’

“contracts of employment” include last-mile deliveries. The nature of their

3 individual claims does not change this analysis. These drivers have one contract of

employment which governs all their work, including shifts for last-mile deliveries

and shifts for tip-producing deliveries. Accordingly, we find that, as in Rittmann,

Amazon Flex delivery drivers are exempt under § 1 of the FAA.

3. Finally, Amazon argues that even if Amazon Flex delivery drivers are

exempt under the FAA, the arbitration provision should be enforced under state

law. Again, Rittmann controls. In examining the identical 2016 Terms of Service

that plaintiffs agreed to here, we held that no state law applies to the arbitration

provision. 971 F.3d at 920. Amazon argues that the 2019 and 2021 Terms of

Service supersede the 2016 Terms of Service and require enforcement of the

arbitration provision under Delaware state law.1 Amazon’s argument fails. The

2016 Terms of Service state that “any modifications to Section 11 [the arbitration

provision] will not apply to claims that accrued or to disputes that arose prior to

such modification.” Plaintiffs allege that the practices they challenge started in

2016 and ended in about August 2019, before the 2019 Terms of Service became

effective. Therefore, according to plaintiffs, the modifications to the arbitration

1 These Terms of Service state, in sum, that if the FAA is found by any court not to apply to Section 11–the arbitration provision—then the law of the state of Delaware will govern. Most of the plaintiffs accepted the 2019 Terms of Service by using the app or performing services after receiving an email in October 2019 notifying them that Amazon was updating the agreement. Two plaintiffs accepted the 2021 Term of Service.

4 provision cannot apply to their claims. We agree. Rittmann controls, and Amazon

cannot enforce the arbitration provision under state law.

AFFIRMED.