Case 3:21-cv-01833-BTM-MDD Document 17 Filed 10/06/22 PageID.181 Page 1 of 11
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`JONATHAN CORRELL, on behalf
`of himself and all others similarly
`situated,
`
`Plaintiffs,
`
` v.
`
`AMAZON.COM, INC., and DOES
`I-10,
`
`Defendant.
`
`Case No.: 3:21-cv-01833 BTM
`
`ORDER GRANTING MOTION TO
`DISMISS PLANTIFFS’
`COMPLAINT UNDER FED. R.
`CIV. P. 12(b)(1) WITH LEAVE TO
`AMEND
`
`[ECF No. 13]
`
`Before the court is Defendant Amazon.com., Inc’s (“Amazon”) Motion to
`
`Dismiss under the Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff
`
`Jonathan Correll (“Correll”) opposes the motion. For the reasons discussed below,
`
`the Court GRANTS Defendant’s motion to dismiss under Fed. R. Civ. P. 12(b)(1)
`
`with leave to amend.
`
`I. BACKGROUND
`
`Correll, on behalf of himself and a potential class, filed suit against Amazon
`
`alleging unequal treatment and discrimination in Amazon’s Seller Certification
`
`program, Guided Buying policy, and other orientation-based incentive programs
`
`1
`
`3:21-cv-01833 BTM
`
`

`

`Case 3:21-cv-01833-BTM-MDD Document 17 Filed 10/06/22 PageID.182 Page 2 of 11
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`for retailers. (ECF No. 1 (“Complaint”).) Plaintiffs’ Complaint asks for injunctive
`
`relief and damages under California Civil Code §§ 51 and 51.5 (“Unruh Civil Rights
`
`Act”). (Id.)
`
`The parties agree that Amazon currently has policies in place to promote,
`
`encourage, and incentivize minority certified sellers. (ECF No. 1, 13-15.)
`
`Amazon asserts it created these initiatives “to increase the diversity of its seller
`
`population so that customers have the greatest possible choice.” (ECF No.
`the complaint
`13, 12.) The specific
`incentive programs challenged by
`include: 1) Amazon’s “Seller Certification” program, which allows sellers to list
`certifications on their site based on
`their businesses ownership,
`including
`
`women, veteran, LGBT or minority-owned business certificates; 2) Amazon’s
`
`“Guided Buyer policy,” which allows Amazon Business customers to “prioritize
`
`products sold by sellers with particular certifications”; 3) Amazon’s spotlight
`
`pages, which highlight selected business and their products on curated
`
`‘themed’ sites, including “Discover Women-Owned Businesses”, “Buy Black”
`
`for Black History Month, “Shop Hispanic & Latino Goods” for Hispanic Heritage
`
`Month; and 4) the “Black Business Accelerator Program” which offers limited
`
`free advertising, image services, credit assistance, and eligibility for potential
`
`cash grants to select certified sellers. (ECF No. 13, 4-5; ECF No. 1, 3.) The
`
`complaint alleges that through these programs Amazon “direct[s] consumers
`
`away from Amazon’s disfavored sellers…and towards Amazon’s preferred
`
`and privileged sellers” based on the sellers’ identity. (ECF No. 1, 2-3.) Plaintiff
`
`pleads that he visited Amazon’s website in the summer and fall of 2021 with
`
`the intent to use Amazon’s sales services. (ECF No. 1 at 17.) There, Plaintiff
`
`encountered Amazon’s programs which Plaintiff asserts “denied and deprived
`
`heterosexual White males” among other groups
`
`“the
`
`full and equal
`
`accommodations, advantages, facilities, privileges, or services based on their
`
`sexual orientation, race, and sex.” (Id. at 17.) After viewing these programs,
`
`Plaintiff did not open an Amazon Sellers account and did not sell any product
`2
`
`3:21-cv-01833 BTM
`
`

`

`Case 3:21-cv-01833-BTM-MDD Document 17 Filed 10/06/22 PageID.183 Page 3 of 11
`
`through the website. (Id.) Plaintiff’s Complaint does not plead facts sufficient to
`
`identify Plaintiff's products, seller history, or that he was “able and ready” to sell
`
`products on Amazon’s website prior to viewing the incentive programs. (Id.)
`
`II. DISCUSSION
`
`Amazon moves to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of Article
`
`III standing and 12(b)(6) for failure to state a claim. (ECF No. 13. (“Def.’s
`
`MTD”).) The court addresses both motions in turn.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`A. Motion to Dismiss for lack of subject-matter jurisdiction under Fed. R.
`
`11
`
`Civ. P. 12(b)(1)
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`I.
`
`Legal Standard
`
`Amazon challenges the Complaint, in part, on the ground that Plaintiff lacks
`
`Article III standing. (Id.) Standing is an element of subject matter jurisdiction.
`
`Therefore, Amazon moves to dismiss Plaintiffs’ Complaint for lack of subject
`
`matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
`
`A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial
`
`attack, the challenger asserts that the allegations contained in a complaint are
`
`insufficient on their face to invoke federal jurisdiction. Safe Air for Everyone v.
`
`Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Generally, on a 12(b)(1) motion
`
`regarding subject matter jurisdiction, unlike a 12(b)(6) motion, a court need not
`
`defer to a plaintiff's factual allegations. Id. But the Supreme Court has held that
`
`where a 12(b)(1) motion to dismiss is based on lack of standing, the Court must
`
`defer to the plaintiff's factual allegations and must "presume that general
`
`allegations embrace those specific facts that are necessary to support the claim."
`
`Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal quotation
`
`marks omitted). "At the pleading stage, general factual allegations of injury
`
`3
`
`3:21-cv-01833 BTM
`
`

`

`Case 3:21-cv-01833-BTM-MDD Document 17 Filed 10/06/22 PageID.184 Page 4 of 11
`
`
`
`resulting from the defendant's conduct may suffice." Id. at 560. In short, a
`
`12(b)(1) motion to dismiss for lack of standing can only succeed if the plaintiff
`
`has failed to make "general factual allegations of injury resulting from the
`
`defendant's conduct." Id.
`
`
`
`II.
`
`Article III Standing
`
`Standing is a necessary element of federal court jurisdiction under Article III
`
`of the U.S. Constitution. Warth v. Seldin, 422 U.S. 490, 498 (1975). Article III of
`
`the U.S. Constitution authorizes federal courts to exercise jurisdiction over “Cases”
`
`and “Controversies.” U.S. Const. art. III, § 2. A litigant must have standing in order
`
`for their suit to meet the case-or-controversy requirement for federal jurisdiction.
`
`Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “Standing is a necessary
`
`element of federal-court jurisdiction” and accordingly a “threshold question in every
`
`federal case.” Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir. 2009) (Citing Warth,
`
`422 U.S. at 498.). “The party invoking federal jurisdiction, not the district court,
`
`bears the burden of establishing Article III standing.” Carroll v. Nakatani, 342 F.3d
`
`934, 945 (9th Cir. 2003). As discussed below, a complaint can not proceed in
`
`federal court without Article III standing, even if a similarly situated complaint could
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`proceed in state court.
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Standing requires that the plaintiff (1) suffered an injury in fact; (2) show the
`
`defendant’s causal connection to the injury; and (3) demonstrate that the injury
`
`would be redressed by a favorable decision. Spokeo, Inc. v. Robins, 578 U.S. 330,
`
`337 (2016). That is, a plaintiff must allege "'such a personal stake in the outcome
`
`of the controversy as to warrant his invocation of federal court jurisdiction and to
`
`justify exercise of the court's remedial powers on his behalf." Warth, 422 U.S. at
`
`498-99. A plaintiff must have suffered an ‘injury in fact’— “‘an invasion of a legally
`
`protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
`
`conjectural or hypothetical.’” Spokeo, 578 U.S. at 339 (quoting Lujan, 504 U.S. at
`
`4
`
`3:21-cv-01833 BTM
`
`

`

`Case 3:21-cv-01833-BTM-MDD Document 17 Filed 10/06/22 PageID.185 Page 5 of 11
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`560). A "particularized" injury is one that "affect[s] the plaintiff in a personal and
`
`individual way." Id. The Article III requirement that an injury is “actual or imminent”
`
`“ensure[s] that the alleged injury is not too speculative for Article III purposes---that
`
`the injury is certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409
`
`(2013).
`
`Plaintiff contends that because he viewed identity-based incentive programs
`
`on the Amazon Seller site that he could not qualify for, he was subject to
`
`discrimination, and accordingly suffered an injury in fact. (ECF No. 1 at 17.)
`
`However, while Plaintiff contends he visited the Amazon seller site, he pleads no
`
`facts to show he was ‘able and ready’ to sell. (Id.) Accordingly, Plaintiff does not
`
`plead a particularized injury sufficient to support an inference of injury-in-fact.
`
`Generalized grievances have long been considered insufficient to confer
`
`standing under Article III. Carroll, 342 F. 3d at 940 (stating “The Supreme Court
`
`has repeatedly refused to recognize a generalized grievance against allegedly
`
`illegal government conduct as sufficient to confer standing” (citing United States
`
`v. Hays, 515 U.S. 737, 743 (1995))). In Allen v. Wright, 468 U.S. 737, 755
`
`(1984), plaintiffs challenged the Internal Revenue Service for its failure to deny
`
`tax-exempt status to racially discriminatory private schools. The Supreme Court
`
`held the parties lacked standing, stating the "asserted right to have the
`
`Government act in accordance with law is not sufficient, standing alone, to confer
`
`jurisdiction on a federal court." Id.; see also Valley Forge College v. Americans
`
`United, 454 U.S. 464, 482-83 (1982) ("[t]his Court repeatedly has rejected claims
`
`of standing predicated on the right, possessed by every citizen, to require that
`
`the Government be administered according to law." (internal quotation marks and
`
`25
`
`citation omitted))”
`
`26
`
`27
`
`28
`
`In Carroll v. Nakatani, 342 F.3d at 947, the Ninth Circuit held that a plaintiff
`
`raising an equal protection challenge of the Hawaii Constitution lacked Article III
`
`standing because “the existence of [a] classification…is not sufficient to recognize
`
`5
`
`3:21-cv-01833 BTM
`
`

`

`Case 3:21-cv-01833-BTM-MDD Document 17 Filed 10/06/22 PageID.186 Page 6 of 11
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`standing.” There, plaintiff's claim challenged a provision that created agencies
`
`providing specialized benefits to Native Hawaiians, but the plaintiff’s claim failed
`
`because he did not “provide any evidence of an injury from the...programs other
`
`than the classification itself. He offers no evidence that he is ‘able and ready’ to
`
`compete for, or receive” the challenged benefit. Id. This differs from White v.
`
`Square, 891 F.3d 1174, 1175-77 (9th Cir. 2018), where an ‘able and ready’ plaintiff
`
`“sought to use Square’s services, but was unable to do so because of its
`
`discriminatory policy against bankruptcy attorneys”.
`
`Here, while Correll identifies his interest in selling with Amazon and offers
`
`the two dates he visited the site to set up an account, he does not allege that he
`
`was able and ready to sell a product, or that he even had a product to offer. (ECF
`
`No. 1.) As the party invoking federal jurisdiction, Plaintiff bears the burden of
`
`clearly alleging facts which demonstrate injury, that is, but for the discrimination,
`
`he had a product ready to sell. Baker v. United States, 722 F.2d 517, 518 (9th Cir.
`
`1983). Correll has not met his burden.
`
`Finally, Correll argues standing exists under a recent California Supreme
`
`Court Case, White v. Square Inc, which found standing to bring a California state
`
`law claim for discrimination under the Unruh Act. 891 F.3d at 1175-77. Correll
`
`contends this case establishes standing for discrimination claims against
`
`websites, like Amazon, and that it must be followed here. (ECF No. 14 at 8-10.)
`
`As state and federal courts have long had different standing requirements, this
`
`argument is unpersuasive. Weatherford v. City of San Rafael, 2 Cal. 5th 1241,
`
`1247-48 (2017) (holding “[u]nlike the federal Constitution, our state Constitution
`
`has no case or controversy requirement imposing an independent jurisdictional
`
`limitation on our standing doctrine.”). The Supreme Court, in Spokeo v. Robins,
`
`578 U.S. at 341, underscored the distinction between federal and state court
`
`standing requirements. Spokeo noted that an allegation of a “procedural”
`
`statutory violation, “divorced from any concrete harm,” cannot alone satisfy the
`
`6
`
`3:21-cv-01833 BTM
`
`

`

`Case 3:21-cv-01833-BTM-MDD Document 17 Filed 10/06/22 PageID.187 Page 7 of 11
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`injury-in-fact requirement of Article III. See Opiotennione v. Facebook, Inc., No.
`
`19-CV-07185-JSC, 2020 WL 5877667 (N.D. Cal. Oct. 2, 2020) (holding
`
`“[p]laintiff’s allegations fail to support a plausible inference that she suffered an
`
`injury-in-fact as a result of Facebook’s advertising tools” and that while “the
`
`Unruh Act ‘renders ‘arbitrary sex discrimination by businesses … per se
`
`injurious,’ it still requires allegations of injury.” (citing Angelucci v. Century Supper
`
`Club, 41 Cal. 4th 160 (2007) and Koire v. Metro Car Wash, 40 Cal. 3d 24 (1985)).
`
`Since Plaintiff failed to allege that he had an actual product to offer for
`
`immediate sale on Amazon, he has failed to plead injury-in-fact sufficient to
`
`10
`
`confer Article III standing.
`
`11
`
`
`
`12
`
`B. Motion to Dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6)
`
`13
`
`
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`I.
`
`Legal Standard
`
`Next, the court addresses Defendant’s motion to dismiss under Federal
`
`Rule of Civil Procedure 12(b)(6). A motion to dismiss under Fed. R. Civ. P.
`
`12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable
`
`legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v.
`
`Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a
`
`motion to dismiss, the allegations of material fact in plaintiff’s complaint are taken
`
`as true and construed in the light most favorable to the plaintiff. See Parks Sch.
`
`of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed
`
`factual allegations are not required, factual allegations “must be enough to raise
`
`a right to relief above the speculative level.” Bell Atlantic v. Twombly, 550 U.S.
`
`544, 555 (2007). “A plaintiff’s obligation to prove the ‘grounds’ of his
`
`‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
`
`recitation of the elements of a cause of action will not do.” Id. Only a complaint
`
`that states a plausible claim for relief will survive a motion to dismiss. Id.
`
`7
`
`3:21-cv-01833 BTM
`
`

`

`Case 3:21-cv-01833-BTM-MDD Document 17 Filed 10/06/22 PageID.188 Page 8 of 11
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`II.
`
`Sufficiency of Claims under California Civil Code Sections 51 and
`
`51.5 (“Unruh Civil Rights Act”)
`
` Amazon’s Fed. R. Civ. P. 12(b)(6) motion to dismiss argues that Plaintiff
`
`failed to state a claim under California’s Unruh Civil Rights Act as required by
`
`Fed. R. Civ. P 12(b)(6). (ECF No. 13.) The Unruh Civil Rights Act provides in
`
`relevant part:
`
`All persons within the jurisdiction of this state are free and equal, and no
`
`matter what their ... race ... are entitled to the full and equal
`
`accommodations, advantages, facilities, privileges, or services in all
`
`business establishments of every kind whatsoever.
`
`
`
`Cal. Civ. Code § 51(b). Section 51.5 provides that "[n]o business establishment
`
`of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse
`
`to buy from, contract with, sell to, or trade with any person in this state on
`
`account of any characteristic listed or defined in subdivision (b) or (e) of Section
`
`51[.]" Cal. Civ. Code § 51.5(a). The analysis for Section 51.5 is the same as the
`
`analysis for purposes of the Act. See Semler v. General Electric Capital Corp.,
`
`196 Cal.App.4th 1380, 1404 (2011); see also Strother v. Southern California
`
`19
`
`Permanente Medical Group, 79 F.3d 859 (9th Cir. 1996) (interpreting § 51.5 as a
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`mere extension of the Unruh Act, with the same showings and requirements).
`
`To state a claim for discrimination under the Unruh Act, a plaintiff must
`
`allege that: 1) he or she was denied full and equal accommodations, advantages,
`
`facilities, privileges, or services in a business establishment; 2) that his or her
`
`protected characteristic was a motivating factor for this denial; 3) that defendant's
`
`denial was the result of its intentional discrimination against plaintiff; and 4) that
`
`the defendant's wrongful conduct caused him to suffer injury. See Jud. Council of
`
`Cal. Civil Jury Instructions, CACI No. 3060 (Unruh Civil Rights Act—Essential
`
`Factual Elements) (2021); see also Cal. Civ. Code § 51(b). “In general, a person
`
`8
`
`3:21-cv-01833 BTM
`
`

`

`Case 3:21-cv-01833-BTM-MDD Document 17 Filed 10/06/22 PageID.189 Page 9 of 11
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`suffers discrimination under the Act when the person presents himself or herself
`
`to a business with an intent to use its services but encounters an exclusionary
`
`policy or practice that prevents him or her from using those services.” White v.
`
`Square, 891 F.3d 1174, 1175-77 (9th Cir. 2018).
`
`Here, Amazon asserts that Correll’s complaint fails on the merits because
`
`Amazon’s initiatives are facially valid and reasonably related to state and federal
`
`diversity policies, falling under the Unruh Act exception. California courts have
`
`consistently held that the Act has an “objective of prohibiting ‘unreasonable,
`
`arbitrary or invidious discrimination’”. Jud. Council of Cal. Civil Jury Instructions,
`
`10
`
`CACI No. 3060 (Unruh Civil Rights Act—Essential Factual Elements) (2021);
`
`11
`
`Javorsky v. Western Athletic Clubs, Inc., 242 Cal.App.4th 1386, 1399 (2015).
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`“Although the Unruh Act proscribes ‘any form of arbitrary discrimination,’ certain
`
`types of discrimination have been denominated ‘reasonable” and, therefore, not
`
`arbitrary.” Hankins v. El Torito Restaurants, Inc., 63 Cal.App.4th 510, 520 (1998)
`
`(internal citations omitted.) For example, “it is permissible to exclude children
`
`from bars or adult bookstores because it is illegal to serve alcoholic beverages or
`
`to distribute ‘harmful matter’ to minors.” Koire v. Metro Car Wash, 40 Cal. 3d 24,
`
`31 (1985). “Discrimination may be reasonable, and not arbitrary, in light of the
`
`nature of the enterprise … and public policy supporting the disparate treatment.”
`
`Javorsky, 242 Cal.App.4th at 1395. To fall under the exception of the Unruh Act,
`
`a "compelling societal interest" may be relied on to justify differential treatment.
`
`See Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 743 (1982).
`
`Correll asserts that “Amazon’s purported desire to foster diversity…does
`
`not rise to the level of an ‘exceedingly persuasive justification’ required by the
`
`Act. (ECF No. 14). Correll argues that “California courts uniformly reject unequal
`
`treatment based on race or gender as violative of public policy[.]” (Id.) Yet
`
`Amazon points to nearly 30 existing California and federal statutes which
`
`promote similar diversity goals and initiatives. (ECF No. 13). As the California
`
`9
`
`3:21-cv-01833 BTM
`
`

`

`Case 3:21-cv-01833-BTM-MDD Document 17 Filed 10/06/22 PageID.190 Page 10 of 11
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Supreme Court has explained, “’[p]ublic policy,’ for the purposes of ‘reasonable’
`
`discrimination under the Unruh Act, may be gleaned by reviewing other statutory
`
`enactments.” Koire, 40 Cal. 3d at 31. Moreover, this interest need not be
`
`"extraordinarily high or laudable," but "merely one that is sufficient given the
`
`nature of the particular disparate treatment at issue and other attendant
`
`circumstances," that is to say, "of sufficient societal benefit to render the
`
`disparate treatment reasonable and not arbitrary." Javorsky, 242 Cal.App.4th at
`
`p. 1397; Pizarro v. Lamb’s Players Theatre, 135 Cal.App.4th 1171,1174, 1176-
`
`1177 (2006). At its core, the “fundamental purpose of the Unruh Civil Rights Act
`
`is the elimination of antisocial discriminatory practices—not the elimination of
`
`socially beneficial ones." Javorsky, 242 Cal.App.4th at 1394-1395.
`
`Amazon asserts it created these initiatives “to increase the diversity of its
`
`seller population so that customers have the greatest possible choice.” (ECF No.
`
`13, 12). The existence of similar state and federal statutes promoting diversity in
`
`small business ownership supports Amazon’s contention. (Id.) This is
`
`distinguishable from Plaintiff’s lead case, Candelore v. Tinder, Inc., 228 Cal. Rptr.
`
`3d 336 (2018), where the court found no strong public policy justification for
`
`charging users over 30 more to be on a dating application. There, defendants
`
`were unable to “identify any legislative pronouncements that would justify such a
`
`departure from the Act’s language” and could not demonstrate socially beneficial
`
`goals outside of increasing their own profits. Id. at 348. Here, this is not the
`
`case. Amazon’s policies do not exclude other sellers from joining the website, as
`
`was seen in White, nor do they lack public policy justifications as was seen in
`
`Candelore. The initiatives echo existing statutes that promote diversity and serve
`
`public policy goals. However, the circumstances concerning how the programs
`
`function are relevant to the exception. For this reason, judgement on this record
`
`would be inappropriate. Furthermore, the court should not decide this issue
`
`when standing is questionable. If Plaintiff amends his complaint to establish
`
`10
`
`3:21-cv-01833 BTM
`
`

`

`Case 3:21-cv-01833-BTM-MDD Document 17 Filed 10/06/22 PageID.191 Page 11 of 11
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`Article III standing, the Court will determine this issue on a motion for summary
`
`judgement. Accordingly, the Court DENIES Defendants Fed. R. Civ. P. 12(b)(6)
`
`motion to dismiss without prejudice.
`
`C. Leave to Amend
`
`Plaintiff requested leave to amend if Defendants Motion to Dismiss was
`
`granted. (ECF No. 15 at. 25.) Under Federal Rule of Civil Procedure 15(a)(2),
`
`district courts “should freely give leave [to amend] when justice so requires.” A
`
`district court should deny leave to amend in the presence of “undue delay, bad
`
`faith or dilatory motive on the part of the movant, repeated failure to cure
`
`deficiencies by amendments allowed, undue prejudice to the opposing party by
`
`virtue of allowance of the amendment, [or] futility of amendment.” Foman v. Davis,
`
`371 U.S. 178, 182 (1962). “Absent prejudice, or a strong showing of any of the
`
`remaining Foman factors, there exists a presumption under Rule 15(a) in favor of
`
`granting leave to amend.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,
`
`1052 (9th Cir. 2003) (per curiam). The Court finds no reason that granting leave
`
`to amend would prejudice Defendant. Accordingly, this Court GRANTS Plaintiff
`
`18
`
`leave to amend.
`
`III. CONCLUSION
`
`For the reasons discussed above, Defendant’s Motion to Dismiss under Fed.
`
`R. Civ. P. 12(b)(1) is GRANTED. Defendant’s motion under Fed. R. Civ. P.
`
`12(b)(6) is DENIED without prejudice. Plaintiff’s amended complaint, if any,
`
`must be filed on or before October 31, 2022.
`
`IT IS SO ORDERED.
`Dated: October 6, 2022
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`11
`
`3:21-cv-01833 BTM
`
`