United States District Court, D. New Jersey
Z. PAPATAROS, A MINOR and NICOLE PAPATAROS g/a/1, Plaintiffs,
AMAZON.COM, INC., LERAY GROUP LTD., COOLREALL TECHNOLOGY LLC, ABC CORP 1-5, and DEF CORP 1-5, Defendants.
MCNULTY UNITED STATES DISTRICT JUDGE
Z. Papataros, a minor, by his guardian Nicole Papataros
("Papataros"), has Filed a products liability
complaint against defendants Amazon.com, Inc.
("Amazon"), Leray Group Ltd. ("Leray
Group"), and Coolreall Technology LLC
("Coolreall"). Papataros sues for injuries
allegedly caused by a defective scooter that she purchased
from Coolreall on the interactive website Amazon.com.
and Coolreall have not answered the complaint. Amazon has
brought a motion for summary judgment (DE 27) on the issues
of whether it is a "seller" under the New Jersey
Products Liability Act ("NJPLA"), N.J. Stat. Ann.
§ 2A;58C-1, and whether it is immune from liability
under Section 230 of the Communications Decency Act
("CDA"), 47 U.S.C. § 230(c)(1). Amazon also
moves for summary judgment on claims of breach of express and
implied warranty. For the reasons stated below, I will grant
Amazon's motion in part and deny it in part.
analysis is fundamentally structured by a recent relevant
decision by the U.S. Court of Appeals for the Third Circuit,
Oberdorfv. Amazon.com, 930 F.3d 136, 2019 WL 2849153 (3d Cir.
July 3, 2019).
Oberdorf held that Amazon is a "seller" for
purposes of Pennsylvania strict products liability law. The
issue before me, then, is narrowed to the question of whether
any feature of New Jersey law distinguishes it from
Pennsylvania law in a way that requires a different result. I
answer that question in the negative, and hold that Amazon is
a seller under the NJPLA.
Oberdorf interpreted Section 230 of the federal CDA, which
provides that an interactive computer service shall not be
treated as the "publisher or speaker of any information
provided by" a third party, such as a third-party vendor
on Amazon.com. Oberdorf drew what amounted to a distinction
between liability based on Amazon's status as
"speaker" and its status as "seller."
Claims of defective warnings or failure to warn, the Court
held, were "speaker" claims based on the content of
the seller's posting, and hence were barred; claims of
strict products liability under the NJPLA, on the other hand,
were "seller" claims, and therefore not barred.
Here, I follow the lead of Oberdorf and dismiss the
failure-to-warn claims, while preserving the NJPLA strict
Facts On September 28, 2015, Nicole Papataros purchased a
scooter through the Amazon website from Coolreall. (DSOF,
PRSOF ¶ 5). On the listing page for the scooter, between
the "in stock" link and the "add to cart"
link, the website stated, "Sold by Coolreall and
Fulfilled by Amazon." (PSSOF, DRSOF ¶ 25).
Amazon.com, not Coolreall, later appeared on Papataros's
credit card statement. (Id. ¶ 26). After making
her purchase, Papataros received an e-mail confirmation from
Amazon that read "Thank you for shopping with us."
(Id. ¶ 28).
Amazon and Coolreall
Amazon.com is an information service
and system designed so that multiple users across the world
can access the servers and browse the Amazon marketplace at
the same time. (DSOF, PRSOF ¶ 1). Third parties who wish
to sell on the marketplace must set up an account and accept
a Business Solutions Agreement ("BSA").
(Id. ¶ 3; see also PSSOF, DRSOF ¶ 2).
Coolreall was a third-party seller that listed and sold
products on the Amazon.com marketplace. (DSOF, PRSOF ¶
4). Coolreall and Amazon entered into the BSA on or around
November 2014, and Coolreall sold its first product on the
Amazon.com website in February 2015. (PSSOF, DRSOF ¶
agreements between Amazon and Coolreall
grants Amazon a "royalty-free, non-exclusive, worldwide,
perpetual, irrevocable right and license to use, reproduce,
perform, display, distribute, adapt, modify, re-format,
create derivative works of, and otherwise commercially or
non-commercially exploit in any and all" of the
third-party seller's "materials", which
consists of "all Technology, . . . Trademarks, Content,
. . . Product information, data materials, and other items or
information provided or made available by" the
third-party seller. (PSSOF, DRSOF ¶ 3).
requires that third-party sellers "provide in the format
[Amazon] require[s] accurate and complete required product
information for each product or service that you offer
through any Amazon site." (Id. ¶ 4).
also requires third-party sellers to indemnify Amazon for any
claims or losses arising out of the sales of their products.
(Id. ¶ 5).
Papataros filed this suit, Amazon made an indemnification
demand on Coolreall but received no response. (Id.
requires third-party sellers to maintain liability insurance
naming Amazon as an insured upon reaching the "insurance
threshold," i.e., over $10, 000 worth of merchandise
sold for three consecutive months. (Id. ¶ 6).
It is undisputed that Coolreall surpassed that insurance
threshold. (Id. ¶ 7). However, Amazon does not
check whether its third-party sellers which meet the
threshold are actually in compliance with the BSA's
insurance requirement. (Id. ¶ 8).
contains a "most favored nation" provision
(terminology mine) which mandates that third-parry
sellers' pricing for any product be "at least as
favorable to Amazon Site users as the most favorable terms
upon which a product is offered or sold" via other
channels. (Id. ¶ 9). Amazon asserts that
Coolreall set the price for the scooter. (DSOF ¶ 12).
Papataros disputes that assertion to some extent; the
"most favored nation" provision of the BSA, she
says, does give Amazon some control over the price. (PRSOF
¶ 4) (citing PL Ex.1).
customers cannot pay third-party sellers directly. (PSSOF,
DRSOF ¶ 18). All payments are processed by Amazon.
(Id.). Customers may communicate with third-party
sellers via the Amazon messaging system or may post public
questions, but Amazon does not require third-party sellers to
list their contact information on Amazon's website.
(Id. ¶ 20). Amazon does not require third-party
sellers to identify the manufacturers of the products they
sell. (Id. ¶ 21).
gives Amazon "the right in [Amazon's] sole
discretion to determine the content, appearance, design,
functionality and all other aspects of the Amazon sites,
including by redesigning, modifying, removing or restricting
access to any of them, and by suspending, prohibiting or
removing any listing." (PSSOF, DRSOF ¶ 10).
Coolreall, however, provided the content for the product
listing and offer displayed on the scooter's product
detail page. (DSOF; PRSOF ¶ 6). Amazon asserts that it
did not contribute to the content of the product offer or
listing for the scooter. (DSOF ¶ 7). According to
Amazon, it merely published the offer and detail pages.
(Id.). In response, Papataros asserts that, pursuant
to its agreements, Amazon retains the absolute right to
modify the product listing and requires that sellers provide
product information in a particular format. (PRSOF
¶¶ 6, 7).
asserts that Coolreall sourced the scooter from the
manufacturer or upstream distributors. (DSOF ¶ 8)
According to Amazon, Coolreall or others upstream in the
distribution chain prepared, assembled, and packaged the
scooter. (Id. ¶ 9). Amazon also asserts that
Coolreall or others upstream in the chain of commerce made
the decisions as to what warnings, instructions, and labeling
would accompany the scooter. (Id. ¶ 10).
Papataros disputes those foregoing assertions, saying they
lack supporting evidence. (PRSOF ¶¶ 8-10). Here,
Amazon relies in part on the declaration of Charles Wright,
its own Associate General Counsel. (DSOF ¶¶ 8-10).
I accept Papataros's argument that Wright has not
established that he has personal knowledge of Coolreall's
operations. (PRSOF ¶¶ 8-10) (citing Fed.R.Civ.P.
56(c)(4)). I will, however, take Wright's declaration as
evidence that Amazon did not participate in sourcing,
preparing, assembling, or packaging the scooter, or in
creating the scooter's warnings, instructions, or labels.
Amazon's reliance on the BSA I will treat similarly.
(DSOF ¶¶ 8-11). Papataros is correct that the BSA
does not provide "proof of how Coolreall or others
upstream sourced, prepared, assembled, packaged, warned,
instructed, or labeled the product. (PSOF ¶¶ 8-11).
Papataros does not dispute, however, that the BSA
demonstrates that Coolreall agreed that either itself or
others, but not Amazon, was responsible for these activities.
(Id.). So limited, these exhibits do not raise a
disputed issue of fact.
asserts that Coolreall marketed the scooter and chose to
offer it for sale. (DSOF ¶¶ 11). Papataros again
disputes Amazon's basis for knowledge and, in addition,
asserts that Amazon markets the items on its website and
charges sellers like Coolreall for those services. (PRSOF
¶¶ 11). Here, too, I find that Wright lacks
personal knowledge of what Coolreall did or did not do, but
his declaration is competent evidence that Amazon did not
market or choose to offer the scooter. Further, the BSA may
serve as evidence of the business relationship between Amazon
that said, Papataros asserts that Amazon actually did
participate in marketing the product. In support, Papataros
cites excerpts from the deposition of Amazon's
representative Christopher M. Poad, conducted on November 28,
2017 in Allstate New Jersey Insurance Co. v. Amazon.com,
Inc., Civ. No. 3:17-2738. (PRSOF ¶ 11 (citing PL Ex. 3);
PSSOF ¶ 15). Amazon points to some difficulties with
reliance on this extrinsic deposition. Amazon does not
dispute, however, that third-party sellers who wish to sell
on Amazon's website must pay a variety of fees "for
the advantages of selling their products on Amazon.com."
(PSSOF, DRSOF ¶ 14).
asserts that any warranty for the scooter was provided not by
itself but by Coolreall. (DSOF ¶ 13). Papataros replies,
however, that Amazon does provide a warranty for the scooter
via its "A-to-Z" Guarantee. (PRSOF ¶ 13
(citing PI. Ex. 4)). Plaintiffs Exhibit 4 suggests that
Amazon's A-to-Z Guarantee applies to "purchases from
third-party sellers when payment is made via the Amazon.com
website or when you use Amazon Pay for qualified purchases on
third-party websites." (PI. Ex. 4). However, this
exhibit does not provide the terms of the A-to-Z Guarantee,
so the coverage of that guarantee remains an unsettled issue
of fact. (Id.).
third-party sellers take advantage of the Fulfillment by
Amazon ("FBA") program. Under FBA, the third-party
seller sends its inventory to an Amazon fulfillment center,
where it is stocked until the fulfillment center retrieves
it, places it in a shipping container, and delivers it to a
shipping carrier for delivery to a customer. (PSSOF, DRSOF
¶ 16). To use the FBA program, third-party sellers pay
additional fees, including a monthly storage fee.
(Id. ¶ 17).
relation to the FBA program, the BSA requires third-party
sellers to provide goods that are suitable for sale. The BSA
gives Amazon the right to return or dispose of any products
which create "a safety, health or liability risk to
Amazon, its personnel, or any third party." (PSSOF,
DRSOF ¶ 11).
participated in the FBA program. (DSOF, PRSOF ¶I5). The
scooter was fully assembled and packaged before Coolreall
sent it to an Amazon fulfillment center for storage.
(Id.) Amazon asserts that Coolreall was solely
responsible for ensuring that the scooter was properly
packaged and complied with all applicable laws. (DSOF ¶
did not design or manufacture the scooter. (DSOF, PRSOF
¶¶ 17, 18). Coolreall retained legal title to the
scooter until it was sold to Papataros. (Id. ¶
16). Amazon never held legal title to the scooter.
[Id. ¶ 19).
point, issues of fact start to shade into questions of law.
As discussed herein, the major issue here is whether Amazon
is considered a "seller" of the scooter under the
NJPLA. (Id. ¶ 16, 19, 20). Amazon stresses that
it "never listed an offer for the scooter." (DSOF
¶ 2). Papataros responds that Amazon is quibbling; it is
undisputed that the scooter was ordered through the
Amazon.com website. (PRSOF ¶ 2). Further, Amazon asserts
that it did not "assemble, blend, package, label,
market, repair, or maintain" the scooter. (DSOF ¶
21). Papataros responds that those denials, like Amazon's
ultimate denial that it is a "seller," are legally
and factually conclusory. (PRSOF ¶ 21).
September 22, 2017, Z. Papataros, a minor, by his guardian,
Nicole Papataros, filed this complaint against Amazon,
Coolreall, and Leray Group (as well as John Does) in New
Jersey Superior Court, Bergen County. (Cplt).
October 27, 2017, Amazon removed the case, invoking this
court's diversity jurisdiction. (DE 1; see
also28 U.S.C. § 1331(a)). On November 16, 2017,
Amazon filed an answer to the complaint and asserted
cross-claims against Coolreall and Leray Group. (DE 5).
Coolreall and Leray Group have not responded to the complaint
or the cross-claims.
parties conducted discovery targeted to Amazon's
anticipated summary judgment motion. Discovery focused on the
issues of whether Amazon was a seller under the New Jersey
Product Liability Act and whether the Communications Decency
Act ("CDA") precludes Papataros's claims. (DE
11, 12, 16).
25, 2018, Amazon wrote to Magistrate Judge Hammer seeking to
apply for a stay of the action pending the Third
Circuit's decision in Oberdorf v. Amazon.com,
Inc., No. 18-1041. Oberdorf was an appeal from
a decision of the U.S. District Court for the Middle District
of Pennsylvania which dismissed claims against Amazon because
(1) Amazon was not a seller under Pennsylvania's strict
liability law, and (2) the plaintiffs negligence claims were
barred by the CDA, 47 U.S.C. § 230. Amazon also cited a
potential appeal from a decision of Judge Wolfson in
Amazon's favor, Allstate New Jersey Insurance Co. ao
Kathleen Cancel v. Amazon, Inc., Civ. No. 17-2738. (DE
17). After a telephone conference, Magistrate Judge Hammer
denied Amazon's request for leave to apply for a stay.
December 21, 2018, Amazon filed its motion for summary
judgment in this case. (DE 27). On March 4, 2019, Papataros
filed its opposition. (PL Opp.). On March 11, 2019, Amazon
filed a reply brief. (DE 32). On May 31, 2019, Amazon filed a
notice of supplemental authority alerting this Court to
Erie Insurance Co, v. Amazon.com, Inc., No. 18-1198,
2019 WL 2195146 (4th Cir. May 22, 2019), an opinion in which
the Fourth Circuit held that (1) Amazon is not a seller, and
therefore not liable, under Maryland law, and (2) plaintiffs
claims against Amazon were not barred by the CDA. (DE 33).
3, 2019, the U.S. Court of Appeals for the Third Circuit
filed its decision in Oberdorfu. Amazon.com, 930
F.3d 136 (3d Cir. 2019). The Oberdorf majority held
that Amazon is a seller for purposes of Pennsylvania strict
products liability law and that Oberdorf s claims against
Amazon were not barred by the CDA. Id. Judge Scirica
wrote a concurrence and dissent, agreeing with the CDA
analysis but concluding that Pennsylvania products liability
law precluded treating Amazon as a seller. Id.
12, 2019, Papataros cited the newly-decided Oberdorf
opinion to this Court, arguing that Pennsylvania strict
products liability law and New Jersey strict products
liability law are similar and that the CDA should not bar the
claims against Amazon. (DE 34). On July 23, 2019, Amazon
responded, arguing that Oberdorf's holding
regarding Pennsylvania product liability law is an outlier,
that the result should be different under the NJPLA, and that
the CDA shields it from liability. (DE 35). Further, Amazon
cited Judge Wolfson's opinion in Allstate, and
directed the Court to the recent case of Fox v.
Amazon.com, Inc., No. 18-5661, 2019 WL 2896326 (6th Cir.
July 5, 2019), in which the Sixth Circuit held that Amazon
was not a seller under the Tennessee Product Liability Act.
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "if the movant shows that there is no
genuine dispute as to any material fact and die movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986);
Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204
(3d Cir. 2000).
the moving party has the burden of proof at trial, that party
must show affirmatively the absence of a genuine issue of
material fact." In re Bressman, 327 F.3d 229,
238 (3d Cir. 2003) (quoting United States v. Four Parcels
of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)).
That is, the moving party must demonstrate that "on all
the essential elements of its case on which it bears the
burden of proof at trial, no reasonable jury could find for
the non-moving party." Id.
other hand, "with respect to an issue on which the
nonmoving party bears the burden of proof ... the burden on
the moving party may be discharged by 'showing'-that
is, pointing out to the district court-that there is an
absence of evidence to support the nonmoving parry's
case." Celotex Corp. v. Catrett, 477 U.S. 317,
325, 106 S.Ct. 2548, 2554 (1986). If the nonmoving party has
failed "to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial, ... there can be 'no genuine issue of material
fact,' since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55
(3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23,
106 S.Ct. at 2552).
demonstrate the existence of a genuine issue, a party
"must do more than simply show that there is some
metaphysical doubt as to material facts." Matsushita
Elec. Indus, Co., Ltd. v. Zenith Radio Corp,, 475 U.S.
574, 586, 106 S.Ct. 1348, 1356 (1986). Likewise,
"unsupported allegations ... and pleadings are
insufficient to repel summary judgment." Schoch v.
First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir.
1990). Rather, a party must present evidence sufficient to
create a triable issue. Anderson, 477 U.S. at
248-49, 106 S.Ct. at 2510; Gleason v. Norwest Mortg.,
Inc., 243 F.3d 130, 138 (3d Cir. 2001) ("A
nonmoving party has created a genuine issue of material fact
if it has provided sufficient evidence to allow a jury to
find in its favor at trial."). By evidence, the Rule
means "materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials." Fed.R.Civ.P. 56(c)(1)(A). In
construing such evidence, however, the court must draw
inferences in the light most favorable to the nonmoving
party. See Boyle v. County of Allegheny Pa., 139
F.3d 386, 393 (3d Cir. 1998).
deciding a motion for summary judgment, the court's role
is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for
trial. Anderson, 477 U.S. at 248-49, 106 S.Ct. at
2510. Credibility determinations are the province of the fact
finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc.,
974 F.2d 1358, 1363 (3d Cir. 1992).
The Oberdorf decision
Oberdorf, supra, the Third Circuit considered
whether Amazon was strictly liable for injuries from an
allegedly defective dog collar purchased on the Amazon.com
website. The collar broke, the leash snapped and recoiled,
and the plaintiff was blinded in one eye. 930 F.3d at 142.
strict product liability claim against Amazon was based on
two theories: failure to warn and defective design.
Id. at 142-43. The Pennsylvania district court held
that Amazon was not liable because it is not a
"seller" under Pennsylvania law and because
Oberdorfs claims were barred by the CDA. Id. at 143.
The Third Circuit for the most part disagreed and reversed,
over a dissent as to the Pennsylvania law issue.
Third Circuit began by discussing Amazon's role in the
sale of products on its website, basing its ruling on the
following facts. Id. at 140-42. Amazon, one of the
world's most valuable retail companies, has a website,
Amazon.com, that serves as an online marketplace.
Id. In general, third-party vendors that sell their
products on Amazon.com decide what to sell, select the means
of shipping, and set prices for their products. Id.
Amazon lists the products on its website, collects order
information, and processes payments in exchange for fees from
the third-party vendors. Id. In general, Amazon
collects two types of fees: commission (usually between 7-15%
of sales price) and either a per-item or monthly fee.
Id. at 142.
third-party vendor, the Court noted, must assent to the BSA,
which "governs every step of the sales process."
Id. at 141. Having agreed to the terms of the BSA,
the vendor then selects the products it would like to sell
(within some broad limits-e.g., no illegal
products), and provides Amazon with a description and images
of the product. Id. Under the BSA, the third-party
vendor must also furnish shipping options, availability, and
other information reasonably requested by Amazon.
Id. Based on that information, Amazon formats the
product listing on Amazon.com. Id. Under the BSA,
Amazon retains the rights to determine the content and other
aspects of the services it will provide, and it retains broad
rights to license and exploit the information provided by the
third-party vendors. Id. The third-party vendors
also have the option to sign up for additional services, such
as Fulfillment by Amazon ("FBA"), discussed at p.7,
third-party vendor chooses the price at which to list the
product, subject to the "most favored nation"
provision that the price and other terms may be no less
favorable than those offered on other sales channels.
Id. The third-party vendors may not communicate
directly with customers except via Amazon's
requires that all shipping commitments to the customer must
be met; accordingly, Amazon requires the third-party vendor
to send Amazon shipping information for each order.
Id. at 142. The Court also noted that timely
delivery is incentivized by Amazon's public rating
the sales process, Amazon may cease to provide any services
at its discretion. Id. Amazon may also withhold
payment if a vendor behaves in a way that poses a risk Amazon
or third parties, and Amazon can require vendors to stop or
cancel orders. Id. Further, Amazon requires that the
third-party vendors "release it and agree to indemnify,
defend, and hold it harmless against any claim, loss, damage,
settlement, cost, expense, or other liability."
to the specific transaction at issue, the Court described
Oberdorfs purchase of the dog collar, beginning with her
search using the Amazon.com search term box. Id. The
dog collar was sold by a third-party vendor, "The Furry
Gang," which shipped the collar directly to Oberdorf
from Nevada. Id. The Court noted that neither Amazon
nor Oberdorf had been able to contact The Furry
Gang. The Furry Gang has not had an active
Amazon account since May 2016. Id.
to its legal analysis, the Court considered Amazon's
argument that it was not subject to Oberdorfs strict
liability claim under Pennsylvania common law. 930 F.3d at
143-51. Pennsylvania applies the Second Restatement of Torts
§ 4O2A to strict liability claims. Under Section 4O2A,
liability is limited to "sellers" of products.
Id. at 144.
Pennsylvania "seller" cases, the Oberdorf
court particularly relied on Musser v. Vilsmeier Auction
Co., 562 A.2d 279 (1989). See Oberdorf, 930
F.3d at 144. In Musser, the Pennsylvania Supreme
Court held that an auction house, which "merely provided
a market as the agent of the seller" was not liable for
injuries caused by a tractor purchased at auction. 562 A.2d
at 282. In doing so, Musser relied heavily on the
policy rationale articulated in comment f of Restatement
§ 4O2A. Following Musser, Oberdorfhe\d
that a court considering seller status under Pennsylvania law
should consider four factors:
(1) Whether the actor is the "only member of the
marketing chain available to the injured plaintiff for