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Nicosia v. Amazon.com, Inc. - 834 F.3d 220 (2d Cir. 2016)


The question of arbitrability usually arises in the context of a motion to compel arbitration. Under the Federal Arbitration Act (FAA), parties can petition the district court for an order directing that "arbitration proceed in the manner provided for in such agreement." 9 U.S.C.S. § 4. The district court must stay proceedings once it is satisfied that the parties have agreed in writing to arbitrate an issue or issues underlying the district court proceeding. In deciding motions to compel, courts apply a standard similar to that applicable for a motion for summary judgment. The summary judgment standard requires a court to consider all relevant, admissible evidence submitted by the parties and contained in pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits. In doing so, the court must draw all reasonable inferences in favor of the non-moving party.


In 2013, plaintiff-appellant Dean Nicosia purchased 1 Day Diet, a weight loss product containing sibutramine, a controlled substance that had been removed from the market in October 2010, on the website of defendant-appellee Amazon.com, Inc. ("Amazon"). Nicosia brought this action below, asserting claims under the Consumer Product Safety Act (the "CPSA"), 15 U.S.C. § 2051 et seq., and state law.

The district court dismissed the complaint on the ground that the parties are bound by the mandatory arbitration provision in Amazon's Conditions of Use. It found that Nicosia was on constructive notice of the terms and that he assented to mandatory arbitration when he placed his order on the website. In the same memorandum and order, the district court treated Nicosia's motion for preliminary injunctive relief as a motion for a preliminary injunction in aid of arbitration, and denied the motion on the ground that he lacked standing to seek an injunction blocking Amazon from selling items containing sibutramine and requiring Amazon to send remedial notices to consumers.


Was it proper to construe the motion to dismiss as a motion to compel arbitration?




Because defendant's motion to dismiss neither sought an order compelling arbitration nor indicated that defendant would seek to force plaintiff to arbitrate in the future, it was proper not to construe the motion to dismiss as a motion to compel arbitration, to which the summary judgment standard would apply. The district court erred in granting defendant's motion to dismiss. First, the district court erred in considering certain factual materials extrinsic to the complaint, and second, with regard to Fed. R. Civ. P. 12(b)(6), plaintiff plausibly stated a claim, as the court was not convinced at this stage that he was bound by the arbitration clause. Regarding plaintiff's motion for a preliminary injunction, the court agreed with the district court that plaintiff did not establish a likelihood of future or continuing harm.

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