United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court are the following motions: (1) Plaintiff GO PED
LTD., LLC's (“GP”) Motion for Summary
Judgment (ECF No. 28),  to which Defendants Amazon.com, Inc.
and Amazon Fulfillment Services, Inc. (“Amazon”)
responded (ECF No. 36) and GP replied (ECF No. 55); (2)
Amazon's Motion for Partial Summary Judgment (ECF No.
29); and (3) Amazon's Motion to Strike (ECF No. 57). The
Court has reviewed the responses (ECF Nos. 41, 54, 58) and
replies (ECF Nos. 56, 59) relating to the latter motions as
a contract dispute between GP, a motorized scooter
manufacturer, and the online retailer Amazon. GP essentially
alleges that Amazon violated the parties' contracts by
taking certain discounts and charging certain fees. Amazon
seeks indemnification pursuant to the parties' contracts
for the costs of an investigation and settlement with the
California Air Resources Board (“CARB”) related
to the scooter sales.
main contract at issue (“Vendor Contract”)
established a relationship between Amazon and GP's
predecessor, Patmont Motor Werks, Inc.
(“Patmont”), whereby GP acted as a vendor to
Amazon-Amazon placed orders offering to purchase products,
and Patmont could accept or reject the orders. (ECF No. 29 at
7.) The Vendor Contract permitted the addition of various
terms over time (“Pricing Terms”) that allowed
Amazon to take discounts under certain conditions and to
charge fees if Patmont failed to deliver goods on time or at
all. (See id.) The Vendor Contract also included an
indemnification agreement. (ECF No. 9 at 7.) GP allegedly
became a party to the Vendor Contract when it purchased
Patmont's assets, “including all rights,
obligations, and remedies [Patmont] had under the [Vendor
Contract], ” in a bankruptcy sale on March 13, 2015.
(ECF No. 1 at 4.)
Pricing Terms that were incorporated into the Vendor Contract
over time included five different kinds of agreements. Under
the Allowance Agreements, Amazon received a two-percent
discount for waiving its right to return damaged or defective
goods. (ECF No. 29 at 9.) Under the Early-Payments Credits
Agreements, Amazon received “a two-percent discount if
it paid within 60 days (and later in the relationship 30
days).” (Id.) Under the Freight Allowance
Agreements, Amazon received a three-percent discount if it
paid Patmont's shipping costs. (Id.) Under the
MDF/COOP Agreements, Amazon received a five-percent (and
later nine-percent) discount for marketing Patmont's
products online. (Id.) Under the Chargebacks
Agreements, Amazon could charge Patmont for ten percent of
the cost of any undelivered products. (Id.)
essentially claims that Amazon wrongfully took discounts and
charged fees in violation of these agreements, and its
complaint contains claims for (1) declaratory relief under 28
U.S.C. § 2201; (2) violation of the Racketeer Influenced
and Corrupt Organizations (“RICO”) Act, 18 U.S.C.
§§ 1961 et seq.; (3) common law fraud; (4)
deceptive trade practices under NRS §§ 598.0915(9),
598.0915(15), and 598.0923; (5) declaratory relief under NRS
§ 104.2302(1); (6) violation of Nevada RICO, NRS
§§ 207.400 et seq.; and (7) unjust
enrichment. (ECF No. 1 at 8-10.)
asserted a counterclaim against GP seeking indemnification
for costs related to a settlement with the CARB. (ECF No. 9
at 6-7.) The CARB asserted that GP's scooters had not
been certified for sale or use in California and violated
California regulations governing emission control systems.
(Id. at 6.) Amazon settled with the CARB by paying
$64, 250 to the California Air Pollution Control Fund.
(Id. at 7.) Amazon seeks indemnification for the
settlement amount in addition to costs and fees.
judgment is appropriate when the pleadings, the discovery and
disclosure materials on file, and any affidavits “show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). An issue is genuine “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party, ” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986), and a dispute is
material if it could affect the outcome of the suit under the
governing law. Id.
judgment is not appropriate when “reasonable minds
could differ as to the import of the evidence.” See
Id. at 250-51. “The amount of evidence necessary
to raise a genuine issue of material fact is [that which is]
enough ‘to require a jury or judge to resolve the
parties' differing versions of the truth at
trial.'” Aydin Corp. v. Loral Corp., 718
F.2d 897, 902 (9th Cir. 1983) (quoting First Natl Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)).
Decisions granting or denying summary judgment are made in
light of the purpose of summary judgment: “to avoid
unnecessary trials when there is no dispute as to the facts
before the court.” Nw. Motorcycle Ass'n v. U.S.
Dep't of Agric, 18 F.3d 1468, 1471 (9th Cir. 1994).
moving party bears the burden of showing that there are no
genuine issues of material fact. Zoslaw v. MCA Distrib.
Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the
moving party satisfies the requirements of Rule 56, the
burden shifts to the party resisting the motion to “set
forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 256. In
evaluating a summary judgment motion, a court views all facts
and draws all inferences in the light most favorable to the
nonmoving party. In re Slatkin, 525 F.3d 805, 810
(9th Cir. 2008). If a party relies on an affidavit or
declaration to support or oppose a motion, it “must be
made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4). The nonmoving party
“may not rely on denials in the pleadings but must
produce specific evidence, through affidavits or admissible
discovery material, to show that the dispute exists, ”
Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th
Cir. 1991), and “must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Orr v. Bank of Am., 285 F.3d 764, 783
(9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient
. . . .” Anderson, 477 U.S. at 252.
MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF No. 29)
moves for summary judgment on all of GP's claims. (ECF
No. 29 at 15.) For the following reasons, the Court grants
First and Fifth Claims: Declaratory Relief
first and fifth claims for relief, GP apparently seeks a
declaration that both the Vendor Contract and its choice of
law provision are unconscionable. (ECF No. 1 at 5-6, 9.)
Amazon moves for summary judgment on the ground that the