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`Case 2:21-cv-00912-BJR Document 44 Filed 04/22/22 Page 1 of 7
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`
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`The Honorable Barbara J. Rothstein
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`
`MARY AND MATTHEW STREET,
`
`Plaintiff,
`
`v.
`
`AMAZON.COM, LLC., a Delaware Limited
`Liability Company; AMAZON DIGITAL
`SERVICES, LLC., a Delaware Limited Liability
`Company,
`
`
`
`Defendant.
`
`NO. 2:21-cv-00912
`
`PLAINTIFFS’ MOTION FOR
`LEAVE TO FILE AMENDED
`COMPLAINT
`
`Plaintiffs Mary and Matthew Street (“Plaintiffs”) file this Motion for Leave to File
`Amended Complaint as follows:
`PROCEDURAL BACKGROUND
`On July 8, 2021, Plaintiffs filed suit against Defendants Amazon.com, Inc. and Amazon
`Digital Services, Inc., asserting individual and class action claims related to the implementation
`and functionality of Amazon’s “Sidewalk” program. Dkt. 1. Counsel for Amazon filed notices
`of appearance on July 13, 2021. Dkts. 11, 12, 14. Amazon waived service on July 27, 2021,
`which extended the deadline to answer the complaint to September 27, 2021. Dkts. 18, 19.
`
`PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED
`COMPLAINT - 1
`
`TOUSLEY BRAIN STEPHENS PLLC
`1200 Fifth Avenue, Suite 1700
`Seattle, Washington 98101
`TEL. 206.682.5600 • FAX 206.682.2992
`
`

`

`Case 2:21-cv-00912-BJR Document 44 Filed 04/22/22 Page 2 of 7
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`Before the Answer was due, counsel for Amazon represented that due to changes in
`Amazon’s corporate structure, Plaintiffs had incorrectly named the defendants. Amazon stated
`that the correct entities were Amazon.com, LLC and Amazon Digital Services, LLC
`(“Amazon”). The parties further discussed Amazon’s contention that an arbitration clause
`applied to the claims Plaintiffs asserted on behalf of “Ring” devices. Based on these
`discussions, the Parties stipulated that Plaintiffs would file an amended complaint naming the
`correct entities and removing claims related to Ring devices. Dkt. 28. The Court entered an
`order approving the stipulation on September 30, 2021. Dkt. 29.
`Pursuant to the stipulation and order, Plaintiffs filed their First Amended Complaint on
`October 8, 2021. Dkt. 30. Amazon filed a motion to dismiss under FRCP 12(b)(6) on October
`28, 2021. Dkt. 31. Plaintiffs filed a response on November 19, 2021. Dkt. 34. Amazon filed a
`reply on December 3, 2021. Dkt. 37.
`While the motion to dismiss was pending, counsel realized that the deadline for filing a
`motion for class certification under this Court’s local rules was not stayed. Accordingly, the
`Parties filed a joint stipulation to stay the class certification briefing deadline and requested that
`the Court issue a new scheduling order after the Court ruled on the motion to dismiss. Dkt. 38.
`The Court granted the request to stay the class certification proceedings, but it also ordered the
`parties “to proceed with discovery and initial disclosures if they have not already done so” and
`to “file a joint status report and proposed scheduling order no later than 1/19/2022.” Dkt. 39
`(minute order). The Parties filed their Joint Status report on January 19, 2022 (Dkt. 40), and the
`Court entered a scheduling order on February 10, 2022 (Dkt. 41).
`Consistent with the Court’s directive to begin discovery, Plaintiffs served document
`requests and requests for admission to Amazon on February 11, 2022. Declaration of Jason T.
`Dennett, ¶ 2. Amazon served responses to Plaintiffs’ requests on March 14, 2022. Id. These
`responses, however, did not include any documents. Instead, despite the Court’s order that
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`PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED
`COMPLAINT - 2
`
`TOUSLEY BRAIN STEPHENS PLLC
`1200 Fifth Avenue, Suite 1700
`Seattle, Washington 98101
`TEL. 206.682.5600 • FAX 206.682.2992
`
`

`

`Case 2:21-cv-00912-BJR Document 44 Filed 04/22/22 Page 3 of 7
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`discovery commence, Amazon refused to produce any documents until the Court ruled on the
`motion to dismiss. Id.
`
`PROPOSED AMENDMENTS
`The Court issued its order granting Amazon’s motion to dismiss on March 21, 2022.
`Dkt. 43 (“Order”). The Court’s rulings were premised on finding that Plaintiffs had not
`included sufficient factual allegations to support their claims and, accordingly, directed
`Plaintiffs to file a motion for leave to amend their complaint. Id. Plaintiffs’ proposed Second
`Amended Complaint (“SAC”) pleads the following additional facts to address those
`deficiencies as set forth in Exhibit A1.
`1.
`The Streets plead that Sidewalk connected to and shared bandwidth
`through the Streets’ Echo device, addressing the deficiency the Order noted at page 4.
`SAC at ¶¶ 46–53.
`The Court noted that the Streets failed to include an explicit allegation that their own
`personal Echo was ever actually connected to the Sidewalk network or shared their bandwidth
`within that network. Plaintiffs could not do so because only Amazon has that information.
`Plaintiffs’ Amazon Echo device does not display or otherwise allow them access to
`information about Sidewalk’s use of bandwidth through that device. Declaration of Matthew
`Strebe at ¶¶ 8–10. Nor can the Street Plaintiffs access this information through their Amazon
`account or from their internet service provider, which would not show Sidewalk’s use of
`bandwidth through Plaintiffs’ device. Id. Amazon encrypts the data that shows how much of
`Plaintiffs’ bandwidth was used by Sidewalk, and only Amazon could decrypt it. Id. at ¶¶ 8–11.
`Amazon alone would have access to the information, and Amazon refuses to share it with its
`customers, the Streets. Id.; Dennett Decl., ¶ 3.
`On April 5, 2022, counsel for Plaintiff reached out to Amazon’s counsel to request
`“documents, including logs, showing the Sidewalk activity on the Streets’ Echo device during
`
`1 A redlined version of the SAC is attached as Exhibit B.
`
`PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED
`COMPLAINT - 3
`
`TOUSLEY BRAIN STEPHENS PLLC
`1200 Fifth Avenue, Suite 1700
`Seattle, Washington 98101
`TEL. 206.682.5600 • FAX 206.682.2992
`
`

`

`Case 2:21-cv-00912-BJR Document 44 Filed 04/22/22 Page 4 of 7
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`the time that Sidewalk was enabled,” noting that these documents were responsive to
`previously served document requests. Dennett Decl., ¶ 3, Ex. 1. Although these requests sought
`documents pertaining to potential class members, in addition to the Streets, Plaintiffs proposed
`“to narrow those requests to this limited information given the Court’s order [on the motion to
`dismiss].” Id. Amazon took the position that its customers, the Streets, were not entitled to
`know how Sidewalk used their bandwidth through their Echo device, even in discovery. Id.
`The Streets now plead that (1) Amazon activated Sidewalk on June 8, 2021; (2)
`Amazon designed the Sidewalk components within the Streets’ Echo device for no purpose
`other than to automatically connect to other Amazon devices and use the Streets’ bandwidth
`without notice to the Streets; (3) the Streets live in a densely populated area near downtown
`Miami; (4) Amazon gave the Streets no notice before activating Sidewalk on their Echo device;
`and (5) the Streets did not opt out of Sidewalk until June 26, 2021. SAC at ¶¶ 46–53. If
`Sidewalk worked as Amazon designed it to during the 18 days that it was active on the Streets’
`Echo device, the Streets have sufficient evidence to plead on information and belief that
`Sidewalk used their bandwidth.
`2.
`The Streets plead that they have a limited data plan, addressing the
`deficiency the Order noted at page 4. SAC at ¶ 16.
`3.
`The Streets plead that Amazon obtained telecommunications services,
`addressing the deficiency the Order noted at page 8–9. SAC at ¶¶ 30–40; 82–83.
`Amazon created Sidewalk by taking private Internet bandwidth from Amazon
`consumers without compensation. SAC at ¶ 1. Amazon then sells access and use of Sidewalk
`wireless network to partner companies. Id. The partner companies sell devices that connect to
`Sidewalk via Bluetooth. Id. at ¶¶ 34–35. When such a device sends a packet of data to Amazon
`through an Echo device, it uses the Echo device owner’s personal Internet bandwidth. Id. at ¶
`36. Put another way, Amazon takes Internet bandwidth from the Streets and Class Members
`
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`PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED
`COMPLAINT - 4
`
`TOUSLEY BRAIN STEPHENS PLLC
`1200 Fifth Avenue, Suite 1700
`Seattle, Washington 98101
`TEL. 206.682.5600 • FAX 206.682.2992
`
`

`

`Case 2:21-cv-00912-BJR Document 44 Filed 04/22/22 Page 5 of 7
`
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`and resells it to partner companies like Tile, without compensating or reimbursing the Streets or
`Class Members. Id. at ¶ 38.
`Amazon obtains telecommunication services when Sidewalk devices use bandwidth
`from the Streets and the Putative Class to create Sidewalk. Amazon then sells Sidewalk
`network services, including data use, to partner companies like Tile. Amazon obtains
`telecommunication services from the Streets and the Putative Class when Amazon’s partner
`companies’ Bluetooth devices like Tile send packets of data through Sidewalk to Amazon’s
`servers. Id. at ¶¶ 82-83.
`4.
`The Streets plead that Amazon received a benefit from Sidewalk at the
`expense of Plaintiffs and was unjustly enriched, addressing the deficiency the Court’s
`Order noted at pages 9–10. SAC at ¶¶ 30–40; 93.
`The Court further noted that the Plaintiffs had failed to allege a specific benefit that
`Amazon received from the Streets sufficient to support a claim for unjust enrichment. Plaintiffs
`now allege that Amazon receives compensation—the details of which are not publicly available
`and are in Amazon’s possession—from third-party companies, such as Tile, for access and use
`of the Sidewalk network through Amazon. Because the network is built from the internet
`bandwidth of putative Class Members, including the Streets, Amazon is directly compensated
`for the use of internet bandwidth that rightfully belongs to the Streets and others. Although the
`specific details of this compensation are unknown and unavailable to the Streets, it is
`reasonable to infer that Amazon would not provide access to Sidewalk and devote resources to
`improving the functionality of services offered by Tile and other partner companies without
`financial incentives.
`
`ARGUMENT
`The Court ordered Plaintiffs to file this motion for leave to amend their complaint. Dkt.
`
`43. “[A] court should liberally allow a party to amend its pleading.” Sonoma Cty. Assoc. of
`Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013). When faced with a request
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`PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED
`COMPLAINT - 5
`
`TOUSLEY BRAIN STEPHENS PLLC
`1200 Fifth Avenue, Suite 1700
`Seattle, Washington 98101
`TEL. 206.682.5600 • FAX 206.682.2992
`
`

`

`Case 2:21-cv-00912-BJR Document 44 Filed 04/22/22 Page 6 of 7
`
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`to amend after a motion to dismiss is granted, the Court should consider whether there is
`“strong evidence of ‘undue delay, bad faith or dilatory move on the part of the movant,
`repeated failure to cure deficiency by amendments previously allowed, undue prejudice to the
`opposing party by virtue of allowance of the amendment, [or] futility of amendment, etc.’” Id.
`(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). While prejudice to the opposing party is
`the primary consideration, “[d]ismissal with prejudice and without leave to amend is not
`appropriate unless it is clear . . . the complaint could not be saved by amendment.” Eminence
`Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); see also Gonzales v.
`Allstate Ins., 19-5569, 2019 WL 4972327, at *2 (W.D. Wash. Oct. 7, 2019) (Settle, J.) (“Thus,
`the Court grants [plaintiff] leave to amend his complaint because it is at least unclear whether
`any amendment would be futile.”).
`
`Here, the Court granted the motion to dismiss based on its finding that Plaintiffs had not
`sufficiently pleaded certain facts necessary to support their claims. The Court did not find that
`Plaintiffs claims were barred as a matter of law or that Plaintiffs would be unable to plead these
`facts such that amendment would be futile. Moreover, Defendants would not be prejudiced by
`an amendment. Indeed, the Court expressly invited Plaintiffs to amend their complaint.
`Plaintiffs’ proposed amended complaint, attached hereto as Exhibit A, cures the factual
`deficiencies identified in the Court’s Order. The proposed amended complaint alleges that the
`Streets had a limited internet data plan; the Streets spent time disabling the Sidewalk feature on
`their Echo device; Amazon directly obtained Plaintiffs’ telecommunication services; and
`Amazon received compensation from third parties, such as Tile, for use of the Streets’ and
`other Class Members’ internet bandwidth over the Sidewalk network. These allegations are
`based on information in Plaintiffs’ possession as well as allegations pleaded on information and
`belief consistent with Ninth Circuit precedent. Specifically, because Amazon refused to
`produce documents that would show there was no third-party activity on the Streets’ device
`through the Sidewalk network, Plaintiffs are entitled to plead on information and belief that
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`PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED
`COMPLAINT - 6
`
`TOUSLEY BRAIN STEPHENS PLLC
`1200 Fifth Avenue, Suite 1700
`Seattle, Washington 98101
`TEL. 206.682.5600 • FAX 206.682.2992
`
`

`

`Case 2:21-cv-00912-BJR Document 44 Filed 04/22/22 Page 7 of 7
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`such activity occurred. See Soo Park v. Thompson, 851 F.3d 910, 928–29 (9th Cir. 2017) (“The
`Twombly plausibility standard … does not prevent a plaintiff from pleading facts alleged upon
`information and belief where the facts are peculiarly within the possession and control of the
`defendant[.]” (internal quotation and citation omitted)).
`
`Accordingly, for the reasons stated above, the Court should grant Plaintiffs’ motion for
`leave to amend their complaint.
`
`DATED this 22nd day of April, 2022.
`
`TOUSLEY BRAIN STEPHENS PLLC
`
`By: s/ Jason T. Dennett
`
`
`Jason T. Dennett, WSBA #30686
`By: s/ Rebecca L. Solomon
`
`
`Rebecca L. Solomon, WSBA #51520
`jdennett@tousley.com
`rsolomon@tousley.com
`1200 Fifth Avenue, Suite 1700
`Seattle, Washington 98101
`Telephone: 206.682.5600
`Fax: 206.682.2992
`
`THE BRAD SOHN LAW FIRM, PLLC
`Brad R. Sohn (admitted pro hac vice)
`1600 Ponce De Leon Blvd., Suite 1205
`Coral Gables, FL 33134
`Telephone: 786.708.9750
`Facsimile: 305.397.0650
`brad@bradsohnlaw.com
`
`LIPPSMITH LLP
`Graham B. Lippsmith (admitted pro hac vice)
`MaryBeth Lippsmith (admitted pro hac vice)
`Jaclyn L. Anderson (admitted pro hac vice)
`555 South Flower Street, Suite 4400
`Lost Angeles, CA 90071
`Telephone: 213.344.1820
`g@lippsmith.com
`mb@lippsmith.com
`jla@lippsmith.com
`
`Attorneys for Plaintiffs
`
`
`
`PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED
`COMPLAINT - 7
`
`TOUSLEY BRAIN STEPHENS PLLC
`1200 Fifth Avenue, Suite 1700
`Seattle, Washington 98101
`TEL. 206.682.5600 • FAX 206.682.2992
`
`