UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON RANDY SHIELDS, CASE NO. 2:23-cv-01455-TL Plaintiff, ORDER ON MOTION FOR v. REVISION FRED MEYER STORES INC, Defendant.
This matter is before the Court on Plaintiff’s motion for revision of the Court’s Order on Fred Meyer’s motion to dismiss the First Amended Complaint (Dkt. No. 21). Dkt. No. 32. Having considered Defendant’s response (Dkt. No. 33), Plaintiff’s reply (Dkt. No. 34), Defendant’s notice of supplemental authority (Dkt. No. 37), and the relevant record, and finding oral argument unnecessary, see LCR 7(b)(4), the Court GRANTS Plaintiff’s motion. This action arises from Plaintiff Randy Shields’s purchase of gasoline from Defendant Fred Meyer Stores Inc. (“Fred Meyer”) using a Direct Express Debit Mastercard (the “Direct Express Debit Card”). E.g., Dkt. No. 14 (amended complaint) ¶¶ 2.3, 2.9–2.10; see also Dkt. No. 21 at 1–4. To briefly summarize, Plaintiff alleges that he prepaid for gasoline from Defendant on numerous occasions using his Direct Express Debit Card, but was not refunded for the value of any gasoline that he pre-purchased but did not pump. See Dkt. No. 21 at 1–4.
On August 9, 2023, Plaintiff filed the instant action, bringing claims on behalf of himself and two putative classes for conversion, breach of contract, unjust enrichment, violations of the Washington Consumer Protection Act (Chapter 19.86 RCW), and imposition of constructive trust. See Dkt. No. 1 at 2; Dkt. No. 14 at 10–19. Defendant removed this action to federal court on September 19, 2023. Dkt. No. 1 at 2. In January 2024, Defendant moved to dismiss Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 18. The Court denied Defendant’s motion; however, as to Plaintiff’s claim under the Washington Consumer Protection Act (“WCPA” or “CPA”), it determined that Plaintiff had failed to sufficiently allege unfair conduct and dismissed that theory of Plaintiff’s WCPA claim. See Dkt. No. 21 at 19–21.
Plaintiff now moves for revision of the Court’s Order to the extent that it determined that Plaintiff had failed to allege unfair conduct by Defendant pursuant to Federal Rule of Civil Procedure 54(b). See Dkt. No. 32 at 1. Federal Rule of Civil Procedure 54(b) states that “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Therefore, “[a]ll rulings of a trial court are ‘subject to revision at any time before the
entry of judgment.’” United States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986) (quoting previous version of Fed. R. Civ. P. 54(b)) abrogated on other grounds by Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988); see also Peirce v. United States, No. C05-440, 2007 WL 9775415, at *2 (W.D. Wash. Apr. 17, 2007); Microsoft Corp. v. Fed. Ins. Co., No. C01-1815, 2003 WL 24330081, at *2 (W.D. Wash. Feb. 13, 2003). However, “[a court’s]
ability to revisit an earlier order under Rule 54(b) does not mean that it should or must do so.” Microsoft Corp., 2003 WL 24330081, at *2 (citing 10 James W. Moore et al., Moore’s Federal Practice and Procedure, § 54.25(4) (3d ed. 1997)). As an initial matter, the Court acknowledges that Plaintiff failed to comply with the Court’s Standing Order for All Civil Cases, which provides that motions must contain a certification that the parties have met and conferred. See Judge Tana Lin, Standing Order for All Civil Cases, Section II.D (Nov. 1, 2024). However, as Plaintiff has acknowledged the error and subsequently conferred with Defendant (see Dkt. No. 34 at 2), the Court will consider the substance of Plaintiff’s motion. Plaintiff contends that the Washington Supreme Court’s order in Greenberg v.
Amazon.com, Inc., 3 Wn.3d 434, 553 P.3d 626 (2024), as amended (Aug. 16, 2024), which was issued after the Court’s Order (Dkt. No. 21), is an intervening change in the controlling law that warrants revision of the Court’s Order. See Dkt. No. 32 at 1–2. The Court previously determined that under controlling Washington law, a “practice is unfair if it causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits.” Dkt. No. 21 at 20 (quoting Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 787, 295 P.3d 1179 (2013)). Defendant
briefed its motion to dismiss utilizing substantial injury as the standard to define unfair acts.1 See Dkt. No. 18 at 22–23; Dkt. No. 20 at 13–14. In its ruling on Defendant’s motion, this Court agreed with that approach based on Klem and, therefore, analyzed the unfair conduct issue using the substantial injury test to define unfair acts or practices. Dkt. No. 21 at 19–21.
The Washington Supreme Court has since recognized that “[i]n Klem, this court stated that the substantial injury test in 15 U.S.C. § 45(n) might be the current standard to define unfair acts or practices[,]” but that “the court declined to explore in detail how to define unfair acts for the purposes of our CPA, insisting that the question must wait for another day.” Greenberg, 3 Wn.3d at 459. The Greenberg court clarified that “in cases where a plaintiff alleges that an act or practice is unfair, but that act or practice is not regulated by statute, the plaintiff needs to show only that the defendant’s conduct is in violation of the public interest,” and went further “to conclude the application of [the WCPA] is not dependent on the federal S&H criteria and that there may even be additional ways that a plaintiff can show that act or practice that is unregulated by statute is unfair.” 3 Wn.3d at 459 (referring to the “S&H” criteria as explained in
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON RANDY SHIELDS, CASE NO. 2:23-cv-01455-TL Plaintiff, ORDER ON MOTION FOR v. REVISION FRED MEYER STORES INC, Defendant.
This matter is before the Court on Plaintiff’s motion for revision of the Court’s Order on Fred Meyer’s motion to dismiss the First Amended Complaint (Dkt. No. 21). Dkt. No. 32. Having considered Defendant’s response (Dkt. No. 33), Plaintiff’s reply (Dkt. No. 34), Defendant’s notice of supplemental authority (Dkt. No. 37), and the relevant record, and finding oral argument unnecessary, see LCR 7(b)(4), the Court GRANTS Plaintiff’s motion. This action arises from Plaintiff Randy Shields’s purchase of gasoline from Defendant Fred Meyer Stores Inc. (“Fred Meyer”) using a Direct Express Debit Mastercard (the “Direct Express Debit Card”). E.g., Dkt. No. 14 (amended complaint) ¶¶ 2.3, 2.9–2.10; see also Dkt. No. 21 at 1–4. To briefly summarize, Plaintiff alleges that he prepaid for gasoline from Defendant on numerous occasions using his Direct Express Debit Card, but was not refunded for the value of any gasoline that he pre-purchased but did not pump. See Dkt. No. 21 at 1–4.
On August 9, 2023, Plaintiff filed the instant action, bringing claims on behalf of himself and two putative classes for conversion, breach of contract, unjust enrichment, violations of the Washington Consumer Protection Act (Chapter 19.86 RCW), and imposition of constructive trust. See Dkt. No. 1 at 2; Dkt. No. 14 at 10–19. Defendant removed this action to federal court on September 19, 2023. Dkt. No. 1 at 2. In January 2024, Defendant moved to dismiss Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 18. The Court denied Defendant’s motion; however, as to Plaintiff’s claim under the Washington Consumer Protection Act (“WCPA” or “CPA”), it determined that Plaintiff had failed to sufficiently allege unfair conduct and dismissed that theory of Plaintiff’s WCPA claim. See Dkt. No. 21 at 19–21.
Plaintiff now moves for revision of the Court’s Order to the extent that it determined that Plaintiff had failed to allege unfair conduct by Defendant pursuant to Federal Rule of Civil Procedure 54(b). See Dkt. No. 32 at 1. Federal Rule of Civil Procedure 54(b) states that “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Therefore, “[a]ll rulings of a trial court are ‘subject to revision at any time before the
entry of judgment.’” United States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986) (quoting previous version of Fed. R. Civ. P. 54(b)) abrogated on other grounds by Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988); see also Peirce v. United States, No. C05-440, 2007 WL 9775415, at *2 (W.D. Wash. Apr. 17, 2007); Microsoft Corp. v. Fed. Ins. Co., No. C01-1815, 2003 WL 24330081, at *2 (W.D. Wash. Feb. 13, 2003). However, “[a court’s]
ability to revisit an earlier order under Rule 54(b) does not mean that it should or must do so.” Microsoft Corp., 2003 WL 24330081, at *2 (citing 10 James W. Moore et al., Moore’s Federal Practice and Procedure, § 54.25(4) (3d ed. 1997)). As an initial matter, the Court acknowledges that Plaintiff failed to comply with the Court’s Standing Order for All Civil Cases, which provides that motions must contain a certification that the parties have met and conferred. See Judge Tana Lin, Standing Order for All Civil Cases, Section II.D (Nov. 1, 2024). However, as Plaintiff has acknowledged the error and subsequently conferred with Defendant (see Dkt. No. 34 at 2), the Court will consider the substance of Plaintiff’s motion. Plaintiff contends that the Washington Supreme Court’s order in Greenberg v.
Amazon.com, Inc., 3 Wn.3d 434, 553 P.3d 626 (2024), as amended (Aug. 16, 2024), which was issued after the Court’s Order (Dkt. No. 21), is an intervening change in the controlling law that warrants revision of the Court’s Order. See Dkt. No. 32 at 1–2. The Court previously determined that under controlling Washington law, a “practice is unfair if it causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits.” Dkt. No. 21 at 20 (quoting Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 787, 295 P.3d 1179 (2013)). Defendant
briefed its motion to dismiss utilizing substantial injury as the standard to define unfair acts.1 See Dkt. No. 18 at 22–23; Dkt. No. 20 at 13–14. In its ruling on Defendant’s motion, this Court agreed with that approach based on Klem and, therefore, analyzed the unfair conduct issue using the substantial injury test to define unfair acts or practices. Dkt. No. 21 at 19–21.
The Washington Supreme Court has since recognized that “[i]n Klem, this court stated that the substantial injury test in 15 U.S.C. § 45(n) might be the current standard to define unfair acts or practices[,]” but that “the court declined to explore in detail how to define unfair acts for the purposes of our CPA, insisting that the question must wait for another day.” Greenberg, 3 Wn.3d at 459. The Greenberg court clarified that “in cases where a plaintiff alleges that an act or practice is unfair, but that act or practice is not regulated by statute, the plaintiff needs to show only that the defendant’s conduct is in violation of the public interest,” and went further “to conclude the application of [the WCPA] is not dependent on the federal S&H criteria and that there may even be additional ways that a plaintiff can show that act or practice that is unregulated by statute is unfair.” 3 Wn.3d at 459 (referring to the “S&H” criteria as explained in
F.T.C. v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n.5 (1972)2). To be sure, Greenberg did not alter or preclude the “substantial injury” test, and in fact continued on to apply that test. See id. at 460 (“The Plaintiffs State a Plausible Claim for Relief 1 Having taken this approach, the Court find it disingenuous for Defendant to now assert that the Court rejected Plaintiff’s arguments on the other S&H factors. Dkt. No. 33 at 10. Defendant did not address the other factors, instead affirmatively stating that “this is not practice that ‘causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and is not outweighed by countervailing benefits,’ as required to state a CPA claim.” Dkt. No. 21 at 19 (quoting Alpert v. Nationstar Mortg. LLC, 2019 WL 1200541, *6 (W.D. Wash. 2019)). Alpert relies on Klem, see 2019 WL 1200541, at *6, as did this Court to focus on substantial injury only. 2 The S&H criteria are “three factors govern[ing] unfairness determinations: ‘(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common-law, statutory or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers (or competitors or other businessmen).’” Greenberg, 3 Wn.3d at 455 (quoting F.T.C. v. Wyndham Worldwide Corp., 799 F.3d 236, 246 (3d Cir. 2015)). under the Substantial Injury Test”); see also Dkt. No. 33 at 11 (arguing that Greenberg “did not change the relevant law”). The supplemental authority submitted by Defendant also demonstrates that the “substantial injury” test remains one way that plaintiffs can show that an act or practice is unfair under the WCPA. See RL Liquidators LLC v. Amazon.com Servs., LLC, No. C24-2096,
2025 WL 2052611, at *6 (W.D. Wash. July 15, 2025). But as Greenberg now makes clear, that test is not the only way plaintiffs can satisfy the unfairness prong under the WCPA. The Court’s prior determination that because the unfair practice as alleged by Plaintiff was reasonably avoidable, Plaintiff had not sufficiently alleged unfair conduct under the substantial injury test (Dkt. No. 21 at 20–21) does not appear to require revision under Greenberg. However, as the Washington Supreme Court has now clarified, Plaintiff’s failure to allege unfair conduct under the substantial injury test is not fatal to the unfair conduct theory of his claim; he may also succeed on an unfair conduct under the WCPA by, inter alia, showing that Defendant’s conduct was in violation of the public interest. Greenberg, 3 Wn.3d at 459. Plaintiff has alleged that:
Fred Meyer knew that Mr. Shields and members of the putative classes were entitled to refunds for the differences between the amounts for which they had prepaid for gasoline and the value of the gasoline that they had pumped when those amounts were different, and Fred Meyer knew that refunds that Mr. Shields and members of the putative classes were entitled to receive for those differences had sometimes not been made because it unsuccessfully attempted to refund those funds to Mr. Shields’ and members of the putative classes’ debit accounts. Even if Fred Meyer did not realize that the refunds of Mr. Shields’ and members of the putative classes’ money had been refused by Direct Express when it originally attempted to make them, or that the refunds had not been attempted by Fred Meyer, Fred Meyer knew it had wrongfully retained and was continuing to wrongfully retain Mr. Shields’ and members of the putative classes’ money no later than the dates of the meeting between Mr. Shields and Mr. Lovall referred to in Paragraphs 2.10 and 2.11, which was sometime between November 10, 2022, and January 6, 2023, when Mr. Lovall reviewed Mr. Shields’ account statements and his gasoline purchase data on Fred Meyer’s computer system. Dkt. No. 14 ¶¶ 3.2–3.3. Plaintiff has also alleged that Defendant “knowingly retain[s] money it receives from its customers for gasoline prepayments or for double charges” and “made no effort to refund the money to the customers after either not attempting to refund the money in the first place, or after it was unsuccessful in the first effort to refund the money.” Id. ¶ 6.4. With these allegations, Plaintiff has adequately alleged that Defendant’s conduct violates the public interest and, therefore, is unfair under the WCPA for purposes of a motion to dismiss. See DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1122 (9th Cir. 2019) (instructing courts to take all well-pleaded factual allegations as true and construe them in the light most favorable to the non- moving party on a motion to dismiss). Plaintiff will therefore be permitted to pursue his WCPA claim under a theory of unfair conduct. III. CONCLUSION Accordingly, Plaintiff’s motion for revision of the Court’s Order on Fred Meyer’s motion to dismiss the First Amended Complaint is GRANTED. Dated this 22nd day of August 2025. A Tana Lin United States District Judge