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`Case 2:21-cv-00912-BJR Document 43 Filed 03/21/22 Page 1 of 12
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` The Honorable Barbara J. Rothstein
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`MARY AND MATTHEW STREET,
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`Plaintiffs,
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`v.
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`AMAZON.COM SERVICES, LLC, a
`Delaware Limited Liability Company, and
`AMAZON DIGITAL SERVICES, LLC, a
`Delaware Limited Liability Company,
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`Defendants.
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` NO. 2:21-cv-0912-BJR
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`ORDER GRANTING
`DEFENDANTS’ MOTION
`TO DISMISS; AND DIRECTING
`PLAINTIFFS TO FILE MOTION
`TO AMEND FAC
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`I.
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`INTRODUCTION
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`Plaintiffs Mary and Matthew Street (“Plaintiffs” or the “Streets”) have filed this lawsuit
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`against Defendants Amazon.com Services, LLC and Amazon Digital Services, LLC (collectively
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`“Defendant” or “Amazon”), asserting claims on behalf of themselves and a putative class, for
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`violations of the Washington Consumer Protection Act (“CPA”) and other state laws. The instant
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`matter comes before the Court on a Motion to Dismiss filed by Amazon. Plaintiffs oppose the
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`motion, and ask in the alternative for the opportunity to amend the Complaint. Having reviewed
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`the parties’ briefs and supporting material filed in support of and opposition to the motion, the
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`Complaint, and the relevant case law, the Court finds and rules as follows.
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`ORDER GRANTING
`MOTION TO DISMISS
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`Case 2:21-cv-00912-BJR Document 43 Filed 03/21/22 Page 2 of 12
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`II.
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`BACKGROUND
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`On June 8, 2021, Amazon launched a technology it calls Sidewalk, automatically
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`connecting certain models of Amazon’s Echo smart speakers to other such devices in homes
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`nearby, using Bluetooth and similar technology.1 First Am. Compl., (“FAC”), ¶ 5. This “mesh
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`network” of Echo-equipped homes helps eliminate interstitial gaps in WiFi, and allows low-
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`bandwidth devices like pet trackers, outdoor security lights, and smart locks, which might
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`otherwise be out of range, to more readily access the internet. Sidewalk performs this function by
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`drawing on the bandwidth and data of private residential internet accounts belonging to owners of
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`the Echo devices.2 FAC ¶¶ 3, 5.
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`Amazon does not charge users of the pet-tracking and other devices that take advantage of
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`the Sidewalk network to connect to the internet. However, Amazon also does not pay the owners
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`of the Echo devices for the privilege of drawing from their private internet accounts. Furthermore,
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`while an Echo owner can “opt-out” of the Sidewalk program by logging on to an app and
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`disabling the feature, when Amazon activated Sidewalk in June 2021, all Sidewalk-compatible
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`Echo models were automatically enlisted as part of the network where, in the absence of an owner
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`taking steps to opt out, they continue to operate.
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`The Streets own a Sidewalk-compatible Echo Dot smart speaker, which they purchased in
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`2018. Id. ¶ 12. The Streets “pay Comcast for personal Internet bandwidth on a monthly basis” and
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`“did not consent to share their personal Internet bandwidth for the Sidewalk network.” Id. ¶¶ 12-
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`1 Amazon’s Sidewalk-enabled devices include several of its newer models, listed at FAC ¶ 28. For the sake of
`simplicity this order will use “Echo” to refer to all such Sidewalk-enabled devices.
`2 “Data” refers to a total amount of data transmitted, while “bandwidth” refers to the rate at which such data can be
`transmitted.
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`ORDER GRANTING
`MOTION TO DISMISS
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`Case 2:21-cv-00912-BJR Document 43 Filed 03/21/22 Page 3 of 12
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`14. One may reasonably infer that the Streets disabled the Sidewalk feature on their Echo within
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`several weeks or so of the network’s June 2021 launch. Id. ¶ 55. They seek to have certified and
`to represent a class comprised of “All persons in the United States who bought or acquired and
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`use an Amazon Sidewalk Device.” Id. ¶ 34. The First Amended Complaint includes three counts:
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`(1) for violation of the Washington Consumer Protection Act, RCW 19.86.010, et seq.; (2) for
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`Theft of Telecommunications Services, under RCW § 9A.56.268 and .262; and (3) for Unjust
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`Enrichment. They seek an award of damages and injunctive relief. FAC at p. 15.
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`A. Standard on a Motion to Dismiss3
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`III. DISCUSSION
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`Upon a motion by a defendant, dismissal is appropriate if the complaint does not “state a
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`claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The complaint must “contain
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`sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007).
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`A claim has “facial plausibility” when the party seeking relief “pleads factual content that allows
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`the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Id. On a motion to dismiss under Rule 12(b)(6), the Court will accept all of plaintiff's plausible
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`allegations as true and construe them in the light most favorable to the plaintiff. Cousins v.
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`Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).
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`Where a defendant argues that a plaintiff's factual allegations are insufficient to state a
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`claim, the court reviews the allegations under the liberal pleading standard of Federal Rule 8(a),
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`3 The Court rejects both sides’ attempts to submit material outside the pleadings, as the Court was able to resolve
`this motion without reliance on or reference to any of it. Amazon’s request for judicial notice and Plaintiffs’ Motion
`for Judicial Notice are denied.
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`ORDER GRANTING
`MOTION TO DISMISS
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`Case 2:21-cv-00912-BJR Document 43 Filed 03/21/22 Page 4 of 12
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`which requires that a plaintiff provide only “a short and plain statement of the claim showing that
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`the pleader is entitled to relief.” Thus, a complaint need not contain detailed factual allegations,
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`but it must provide the grounds for entitlement to relief and not merely a “formulaic recitation” of
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`the elements of a cause of action. Twombly, 550 U.S. at 570 (2007).
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`B. Count I: Washington Consumer Protection Act Claim
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`To state a claim for relief under the Washington CPA, a plaintiff must establish: (1) an
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`unfair or deceptive act or practice (2) occurring in trade or commerce, (3) a public interest impact,
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`(4) injury to the plaintiff's business or property, and (5) causation. Hangman Ridge Training
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`Stables, Inc. v. Safeco Title Ins. Co., 105 Wn. 2d 778 (1986). Amazon challenges two elements of
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`Plaintiffs’ CPA claim, arguing that Plaintiffs have failed to allege facts that support a finding of
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`(1) an injury, and (2) an “unfair or deceptive practice.” The Court reviews each challenge in turn.
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`1. Whether Plaintiffs Have Sufficiently Alleged Injury
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`Amazon’s first challenge to the CPA claim is that Plaintiffs have not alleged sufficient
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`facts to support a cognizable injury. Generally speaking, the injury claimed in the FAC is an
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`“amount . . . including but not limited to the value of [Plaintiffs’] personal Internet bandwidth,
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`time spent learning about the Sidewalk network, time spent disabling the Sidewalk function on
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`Sidewalk Devices, [and] costs of Internet data use overages charged by Internet service
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`providers.” FAC ¶ 55. Despite these averments, Amazon argues that the Streets failed to include
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`in their FAC an explicit allegation that their own personal Echo was ever actually connected to
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`the Sidewalk network, or shared their bandwidth or data within that network; that they have a
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`limited data plan exposing them to possible overage charges for exceeding their data allocation;
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`or that they personally expended time and resources disabling the Sidewalk feature.
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`ORDER GRANTING
`MOTION TO DISMISS
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`Case 2:21-cv-00912-BJR Document 43 Filed 03/21/22 Page 5 of 12
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`Amazon is correct. The Streets fail to include in their FAC any allegation their Echo ever
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`actually connected through Sidewalk, or that their data and bandwidth were ever actually shared.
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`As Amazon further points out, the Streets also fail to allege that they subscribe to a limited data
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`plan; the taking of data from an unlimited plan, even without compensation or consent, Amazon
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`argues, is not an injury. See Cousineau v. Microsoft Corp., 992 F. Supp. 2d 1116, 1128 (finding
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`“unauthorized data transmission would be a cognizable injury to a cell phone user's personal
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`property where that user purchased a finite allowance of data” and dismissing CPA claim where
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`plaintiff failed to allege she paid for “a finite allowance rather than an unlimited usage plan”)
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`(emphasis added). The FAC also does not include any allegation that the Streets in fact spent any
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`time disabling the Sidewalk feature on their Echo.
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`If the Streets aspire to represent an entire class of plaintiffs who claim these injuries, they
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`must at a minimum allege at this stage that they have suffered these injuries themselves. The
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`Court does not conclude at this stage, however, that Plaintiffs will be incapable of alleging any
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`injuries under the CPA. Dismissal of the CPA claim for failure to allege an injury is therefore
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`without prejudice and, as outlined more fully below, Plaintiffs may move to amend the FAC and
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`take the opportunity to state their claims by alleging, if they can, the facts that their pleading
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`currently lacks.
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`2. Whether Plaintiffs Have Alleged Unfair or Deceptive Practices
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`a. Whether Plaintiffs Must Meet Heightened Pleading Standard Under Rule 9(b)
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`Amazon also moves for dismissal of the CPA claim on the grounds that Plaintiffs have
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`failed to adequately allege it committed “unfair or deceptive acts.” Amazon first argues that
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`Plaintiffs are obligated to plead the circumstances constituting any purportedly deceptive acts
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`ORDER GRANTING
`MOTION TO DISMISS
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`Case 2:21-cv-00912-BJR Document 43 Filed 03/21/22 Page 6 of 12
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`with particularity, because Plaintiffs’ CPA claim “sounds in fraud” and therefore must meet the
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`heightened pleading standard under Federal Rule 9(b), which provides that “a party must state
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`with particularity the circumstances constituting fraud.” The question is whether this CPA claim
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`is the sort that triggers this heightened pleading standard, requiring allegations that go beyond
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`Rule 8(a)’s more lenient notice pleading.
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`“While not all claims brought under the Washington CPA must be pled with the
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`specificity prescribed by Rule 9(b), CPA claims that allege and depend upon a ‘unified course of
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`fraudulent conduct’ as the basis of the claims ‘sound in fraud,’ and must be averred with
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`particularity.” Nemykina v. Old Navy, LLC, 461 F. Supp. 3d 1054, 1058 (W.D. Wash. 2020)
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`(citing Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003) (“In some cases,
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`the plaintiff may allege a unified course of fraudulent conduct and rely entirely on that course of
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`conduct as the basis of a claim. In that event, the claim is said to be “grounded in fraud” or to
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`“sound in fraud,” and the pleading of that claim as a whole must satisfy the particularity
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`requirement of Rule 9(b).”). The heightened pleading standard of Rule 9(b) may apply to CPA
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`claims containing “allegations of either an intent to deceive or an overarching fraudulent scheme.”
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`Vernon v. Qwest Commc'ns Int'l, Inc., 643 F. Supp. 2d 1256, 1265 (W.D. Wash. 2009).
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`Plaintiffs do not allege that Amazon had “an intent to deceive,” and the success of their
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`CPA claims does not depend on establishing any such intent. Their claims also do not amount to
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`an “overarching fraudulent scheme.” Plaintiffs charge that the Sidewalk marketing materials
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`misleadingly claimed that Echo owners’ internet connectivity was being “donated” (rather than
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`being taken without permission). Nevertheless, the crux of their complaint is not that Sidewalk is
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`using the private internet accounts of Echo owners without their knowledge, but that it is doing so
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`ORDER GRANTING
`MOTION TO DISMISS
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`without the owners’ express consent or compensation—forcing owners to opt out of the network,
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`rather than allowing them to opt in. These claims, if true, fall short of establishing an
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`“overarching fraudulent scheme,” and do not trigger the heightened pleading standard of Rule
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`9(b).
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`b. Whether Plaintiffs Have Adequately Pleaded Unfair or Deceptive Acts
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`Having concluded that Plaintiffs need only meet Federal Rule 8(a)’s “short and plain
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`statement” standard, the Court must next determine whether they have done so with regard to
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`pleading an “unfair or deceptive act,” one of the CPA’s five essential elements. To survive a
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`motion to dismiss a CPA claim, a “plaintiff need not show the act in question was intended to
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`deceive, only that it had the capacity to deceive a substantial portion of the public. Panag, 166
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`Wn. 2d at 47.
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`The deceptive or unfair practice alleged here is that Amazon “enabled the Sidewalk
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`Devices to share consumers’ Internet bandwidth without prior consent, without adequate notice,
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`and without compensation.” FAC ¶ 50. Amazon’s response to Plaintiffs’ contention that its
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`actions had the capacity to deceive a substantial portion of the public is that there was “extensive
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`media coverage” of the Sidewalk launch, presumably putting Plaintiffs on notice that they had the
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`power (indeed, the obligation) to disable Sidewalk if they did not want to suffer the putative
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`injuries. See Mot. at 11 (“[T]he Streets were hardly blindsided when Amazon activated
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`Sidewalk.”).
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`The Court concludes that Plaintiffs’ admittedly barebones allegation is adequate to put
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`Amazon on notice of what act or practice Plaintiffs are claiming is unfair or deceptive, and
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`survives Amazon’s challenge to the sufficiency of Plaintiffs’ pleading. Moreover, the Court
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`ORDER GRANTING
`MOTION TO DISMISS
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`Case 2:21-cv-00912-BJR Document 43 Filed 03/21/22 Page 8 of 12
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`cannot say at this stage that, as a matter of law, Plaintiffs will be unable to demonstrate an unfair
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`or deceptive act. The Court concludes that Plaintiffs have included allegations of unfair or
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`deceptive acts that at this stage are sufficient to survive Amazon’s Motion to Dismiss.
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`C. Count II: Theft of Telecommunications Services Claim
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`Amazon moves for dismissal of Count II, a claim for Theft of Telecommunications
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`Services, brought under RCW § 9A.56.262. That statute provides:
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`(1) A person is guilty of theft of telecommunication services if he or she
`knowingly and with intent to avoid payment:
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`(a) Uses a telecommunication device to obtain telecommunication services
`without having entered into a prior agreement with a telecommunication service
`provider to pay for the telecommunication services; or
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`(b) Possesses a telecommunication device.
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`(2) Theft of telecommunication services is a class C felony.
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`RCW § 9A 56.268 additionally states “there is created a civil cause of action for theft of
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`telecommunication services,” authorizing “[a] person who sustains injury to his or her person,
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`business, or property by an act described in RCW 9A.56.262” to file suit for damages and/or an
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`injunction. Although this statute (enacted in 1995) has apparently never been construed in a civil
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`context, Plaintiffs argue that the statute applies to the facts of their case, and that the “FAC tracks
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`the [statute’s] precise and simple requirements.” Opp. at 12.
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`The Court concludes that Plaintiffs’ Theft of Telecommunications Services claim must be
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`dismissed. Perhaps most fundamentally, Plaintiffs have not pleaded all of the requisite elements
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`of the claim, as there is no allegation in the FAC that Amazon itself “obtain[ed]” any
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`telecommunication services. According to both parties, the technology works by sharing the
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`ORDER GRANTING
`MOTION TO DISMISS
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`Case 2:21-cv-00912-BJR Document 43 Filed 03/21/22 Page 9 of 12
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`internet connectivity of one Echo with another Echo nearby, creating a network that low-
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`bandwidth devices (such as pet-trackers), otherwise out of WiFi range, can use to connect to the
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`internet. See FAC ¶ 3. Thus if anyone can be said to have “obtained” Plaintiffs’
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`telecommunications services (a question that Amazon denies, but the Court need not resolve
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`today), it is the owners of neighboring Echoes, or perhaps the owners of the low bandwidth pet-
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`tracking and other devices that use the network, not Amazon. At most, Amazon has created a
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`technology that enables this taking to occur; it does not itself obtain the services, an essential
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`element of the claim.
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`Plaintiffs appear to concede this point in their Opposition, failing to explain in what way
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`Amazon itself obtained Plaintiffs’ telecommunications services. Plaintiffs’ only rejoinder to
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`Amazon’s argument that other Echo owners, not Amazon, obtained Plaintiffs’
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`telecommunications services is that it is “a deflection that should shock and disgust every
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`Amazon customer.” Opp. at 12. Plaintiffs ultimately fail, however, to allege facts supporting this
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`required element of their theft claim, stating only that in any event, Amazon should be liable for
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`“accomplice liability” for the putative theft. Id. at 13. Plaintiffs did not plead “accomplice
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`liability” in the FAC, and in their Opposition to the Motion they have not pointed to any
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`allegations in the FAC or provided any argument supporting such a claim, which the Court
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`therefore does not address. The Theft of Telecommunications Services claim, Count II, is hereby
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`dismissed.
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`D. Count III: Unjust Enrichment Claim
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`Finally, Amazon moves for dismissal of Plaintiffs’ third claim, for unjust enrichment.
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`“Unjust enrichment is the method of recovery for the value of the benefit retained absent any
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`ORDER GRANTING
`MOTION TO DISMISS
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`contractual relationship because notions of fairness and justice require it.” Young v. Young, 164
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`Wn. 2d 477, 484 (2008). To state a claim for unjust enrichment, a plaintiff must allege facts
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`demonstrating that: “(1) the defendant receives a benefit, (2) the received benefit is at the
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`plaintiff's expense, and (3) the circumstances make it unjust for the defendant to retain the benefit
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`without payment.” Id. at 484-85.
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`The Court concludes that Plaintiffs have not alleged facts sufficient to support a claim for
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`unjust enrichment. In particular, as with their theft claim, they have failed to allege in what way
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`Amazon receives a benefit from Plaintiffs. Count III in the FAC does allude to two benefits that
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`Plaintiffs claim Amazon receives: it (1) is “able to market and provide additional features of its
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`Sidewalk Devices products [sic] that can only be provided through Sidewalk or a similar
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`network”; and (2) has “avoided substantial costs associated with building and maintaining an
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`alternative, independent network that would be required to provide the same functionality.” FAC
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`¶¶ 68, 69. These purported benefits do not support Plaintiffs’ unjust enrichment claim for several
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`reasons. First, Plaintiffs allege that Amazon is “able to market and provide additional features,”
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`but it is not clear in what way (if any) this is a benefit to Amazon. Indeed, as stated, the
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`“additional features” appear to be a benefit to owners of the Sidewalk devices. The second
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`claimed benefit to Amazon—that the Sidewalk mechanism has allowed Amazon to avoid
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`“substantial costs associated with building and maintaining” an alternative network—is similarly
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`off-point. Again, it is not self-evident that this is a benefit to Amazon, and Plaintiffs fail to allege
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`facts demonstrating that it is. Amazon is creating a network for consumers to use; if this is a
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`benefit to Amazon, Plaintiffs must at this stage at least allege how: is Amazon able to charge
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`more for the Sidewalk-enabled devices? Is it able to sell more units? Would Amazon have
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`ORDER GRANTING
`MOTION TO DISMISS
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`invested in building an alternative network if it were unable to take advantage of the Sidewalk
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`technology? From the facts alleged in the FAC, one is left only to guess what specific benefit
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`Plaintiffs are claiming has accrued to Amazon.
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`Further undercutting the unjust enrichment claim is that “unjust enrichment requires that a
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`defendant received a right of benefit that belonged to the plaintiff.” Pengbo Xiao v. Feast Buffet,
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`Inc., 387 F. Supp. 3d 1181, 1191 (W.D. Wash. 2019) (citation omitted). It is unclear how the
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`putative benefits of marketing additional features or “avoiding substantial costs” of building a
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`network are ones that ever belonged to Plaintiffs in this case. For these reasons, Plaintiffs’ unjust
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`enrichment claim is dismissed.
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`E. Whether Plaintiffs Should Be Permitted to Amend Their FAC
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`Plaintiffs make a request in their opposition to the motion that in the event the Court is
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`inclined to dismiss their claims, they be permitted to amend their FAC. Opp. at 14. Amazon, of
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`course, objects to this request.
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`The Court’s dismissal of Plaintiffs’ claims, above, is grounded in the insufficiency of
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`Plaintiffs’ allegations, and this case being in its relatively early stages, the Court therefore
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`dismisses Plaintiffs’ claims without prejudice. Nevertheless, the Court declines to grant Plaintiffs’
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`request to amend their FAC, without first requiring them to comply with Local Rule 15, which
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`provides that a “party who moves for leave to amend a pleading . . . must attach a copy of the
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`proposed amended pleading as an exhibit to the motion or stipulated motion,” and allowing
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`briefing both in support of and opposition to amendment. Plaintiffs may therefore avoid dismissal
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`of this matter by filing a Motion to Amend the FAC, no later than April 22, 2022. Briefing on the
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`motion shall follow the rules set out in the Court’s Standing Order, Dkt. No. 10.
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`ORDER GRANTING
`MOTION TO DISMISS
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`Case 2:21-cv-00912-BJR Document 43 Filed 03/21/22 Page 12 of 12
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`IV. CONCLUSION
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`For the foregoing reasons, Amazon’s Motion to Dismiss is GRANTED; however,
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`Plaintiffs may file a Motion to Amend the Complaint on or before April 22, 2022. Failure to file
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`such motion by that date will result in dismissal of the FAC.
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`DATED this 21st day of March, 2022.
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`A
`b
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`Barbara Jacobs Rothstein
`U.S. District Court Judge
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`ORDER GRANTING
`MOTION TO DISMISS
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