Trade v. Amazon (Oct. 22, 2025)

Case details
Full caption
N-BAR Trade v. Amazon
Country
United States
Jurisdiction
Federal
Decided
Oct. 22, 2025
Disposition
Dismissed
N-BAR TRADE, INC., et al., Plaintiffs, v. AMAZON.COM..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2986447Only the Westlaw citation is currently available.United States District Court, District of Columbia.N-BAR TRADE, INC., et al., Plaintiffs,v.AMAZON.COM SERVICES LLC, et al., Defendants.Civil Action No. 25-918 (RC)|Filed 10/22/2025Re Document No.: 4MEMORANDUM OPINIONRUDOLPH CONTRERAS United States District JudgeGRANTING DEFENDANTS’ MOTIONTO COMPEL ARBITRATIONI. INTRODUCTION*1 Plaintiffs N-Bar Trade, Inc. (“N-Bar”) and AymenMohammed (“Mr. Mohammed,” and together with N-Bar, “Plaintiffs”) bring this action against DefendantsAmazon.com Services LLC and Amazon Payments, Inc.(together, “Amazon”), seeking damages for alleged violationsof contractual obligations between Amazon and N-Bar, athird-party seller on the Amazon.com platform. See Compl.,ECF No. 1-1. Amazon moves to compel arbitration pursuantto the terms of its Business Solutions Agreement withPlaintiffs. See Defs.’ Mot. Compel Arbitration (“Defs.’Mot.”), ECF No. 4. For the reasons below, the Court grantsAmazon's Motion to Compel Arbitration and dismisses theaction without prejudice.II. BACKGROUNDA. Factual BackgroundAmazon is an online retailer that permits third parties toregister selling accounts and sell products directly to Amazoncustomers. In May 2020, Mr. Mohammed registered N-Baras a third-party seller on the Amazon.com platform, throughwhich N-Bar sold pandemic-related supplies. See Pls.’ Am.Opp'n to Defs.’ Mot. Compel Arbitration (“Pls.’ Opp'n”) at2, ECF No. 8. N-Bar's seller account remained active untilAmazon terminated it on February 16, 2022. Gallucci Decl. 12, ECF No. 4-2.To register a selling account, Amazon requires third-partysellers to accept and agree to Amazon's Business SolutionsAgreement (“BSA”) and the policies it incorporates. Id. 6. Amazon explains that it “provides all sellers with anopportunity to review the BSA before they decide whetherto accept its terms and register a selling account through ahyperlink that is present on the Seller Agreement page.” Id. Aseller cannot complete the online account registration processunless he clicks an “Agree and continue” button on the SellerAgreement page. Id. ¶¶ 7–8. In 2020, when Mr. Mohammedregistered N-Bar's seller account, that page contained a noticestating: “By clicking on ‘Agree and continue,’ you agree tothe Amazon Services Business Solutions Agreement.” Id. 8. The BSA was “immediately accessible through a hyperlinkin blue text.” Id.Section 18 of the BSA, titled “Miscellaneous,” contains aprovision mandating arbitration of disputes arising underthe BSA: “Amazon and [the seller] both consent that anydispute with Amazon or its Affiliates or claim relating inany way to this Agreement or your use of the Serviceswill be resolved by binding arbitration as described in thisparagraph, rather than in court ....” Gallucci Decl. 10, Ex. A(“BSA”) § 18, ECF No. 4-3. In the same paragraph, the BSAprovides: “The arbitration will be conducted by the AmericanArbitration Association (AAA) under its commercial rules.”Id. The AAA's commercial rules, in turn, provide that “[t]hearbitrator shall have the power to rule on his or her ownjurisdiction, including any objections with respect to theexistence, scope, or validity of the arbitration agreement or tothe arbitrability of any claim or counterclaim,” as well as “thepower to determine the existence or validity of a contract ofwhich an arbitration clause forms a part.” Curran Decl. 7,Ex. A (“AAA Commercial Arbitration Rules and MediationProcedures”) R-7(a)–(b), ECF No. 4-7.B. Procedural Background*2 In November 2023, Plaintiffs filed suit against Amazonin the Superior Court of the District of Columbia, bringingclaims for alleged breach of contract. See Defs.’ Mot. at 6.In January 2024, Amazon advised Plaintiffs that their claims
N-BAR TRADE, INC., et al., Plaintiffs, v. AMAZON.COM..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2were subject to a binding arbitration agreement in the BSAand asked Plaintiffs to dismiss their lawsuit and pursue theirclaims in arbitration. Id. Plaintiffs agreed to do so. Id. N-Bar'scounsel emailed the AAA to initiate a commercial arbitration,and the AAA requested that Plaintiffs remit the appropriatefiling pursuant to its rules. Id. However, after a disagreementwith Amazon over the proper arbitration locale, Plaintiffsasked the AAA to close the matter. Id. at 6–7; Pls.’ Opp'nat 3. Plaintiffs then sought to reinstate their case in the D.C.Superior Court, but the court denied this request. Defs.’ Mot.at 6–7.In February 2025, Plaintiffs filed another complaint againstAmazon in the D.C. Superior Court, stating claims for“contract enforcement,” conversion, unjust enrichment, andintentional infliction of emotional distress. See Compl. ¶¶24–42. Plaintiffs allege in their complaint that starting in2021, Amazon breached contractual obligations with N-Barwhen it withheld sales proceeds and other assets from N-Bar, withdrew funds from N-Bar's account, and ultimatelyterminated N-Bar's seller account. Id. ¶¶ 15–17. Amazonremoved the case to this Court pursuant to 28 U.S.C. §1332 and thereafter moved to compel arbitration of the casepursuant to the BSA's mandatory arbitration provisions. SeeCorrected Notice of Removal, ECF No. 3-1; Defs.’ Mot. at 1.III. LEGAL STANDARDUnder the Federal Arbitration Act (“FAA”), a writtenprovision requiring arbitration of a dispute arising out of acontract “shall be valid, irrevocable, and enforceable, saveupon such grounds as exist at law or in equity for therevocation of any contract ....” 9 U.S.C. § 2. “The FAAthereby places arbitration agreements on equal footing withother contracts,” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S.63, 67 (2010), and requires courts to “enforce arbitrationcontracts according to their terms,” Henry Schein, Inc.v. Archer & White Sales, Inc., 586 U.S. 63, 67 (2019).Through an arbitration agreement, “parties may agree tohave an arbitrator decide not only the merits of a particulardispute but also ‘gateway’ questions of ‘arbitrability,’ suchas whether the parties have agreed to arbitrate or whethertheir agreement covers a particular controversy.” Id. at 67–68(citation modified).In considering a motion to compel arbitration, a court firstdetermines whether an arbitration agreement exists betweenthe parties. See id. at 69; see also Mitsubishi Motors Corp.v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985).The court makes this determination pursuant to the summaryjudgment standard of Federal Rule of Civil Procedure 56,treating the motion to compel “as if it were a request forsummary disposition of the issue of whether or not there hadbeen a meeting of the minds on the agreement to arbitrate.”Aliron Int'l, Inc. v. Cherokee Nation Indus., Inc., 531 F.3d863, 865 (D.C. Cir. 2008) (citation omitted). Under Rule56(a), summary judgment is granted only if “there is nogenuine dispute as to any material fact and the movant isentitled to judgment as a matter of law.” Fed. R. Civ. P.56(a). The party seeking to compel arbitration bears the initialburden of presenting evidence sufficient to demonstrate theexistence of an arbitration agreement. See Mercadante v. XEServs., LLC, 78 F. Supp. 3d 131, 136 (D.D.C. 2015). “Theburden then shifts to [the non-moving party] to show thatthere is a genuine issue of material fact as to the makingof the agreement.” Id. (quoting Haire v. Smith, Currie &Hancock LLP, 925 F. Supp. 2d 126, 129 (D.D.C. 2013)). Ifthe pleadings and evidence submitted by the parties showthat there is no genuine dispute as to those facts and that themoving party is entitled to arbitration as a matter of law, thecourt must compel arbitration. See id.IV. ANALYSIS*3 Amazon moves to compel arbitration pursuant tothe FAA and the terms of the BSA. Mr. Mohammedcounters that he should not have to arbitrate the meritsof his dispute with Amazon—whether Amazon breachedits contractual provisions with N-Bar—because the BSA'sarbitration provisions (collectively, “Arbitration Agreement”or “Agreement”) are procedurally and substantivelyunconscionable and therefore invalid. And regardless, Mr.Mohammed argues, Amazon has waived its right to compelarbitration through inconsistent conduct.When a party moves to compel arbitration, “a court'srole is limited to determining whether there is a validagreement to arbitrate, and whether the specific disputefalls within the scope of the arbitration agreement.” MobileNow, Inc. v. Sprint Corp., 393 F. Supp. 3d 56, 63 (D.D.C.2019). Here, however, Amazon argues that the ArbitrationAgreement grants the arbitrator the power to resolve“gateway” questions of “arbitrability,” including whetherthe parties’ contractual dispute is within the scope of theAgreement and whether the Agreement is invalid due tounconscionability. See Defs.’ Mot. at 11–12. An agreement
N-BAR TRADE, INC., et al., Plaintiffs, v. AMAZON.COM..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3to delegate threshold arbitrability questions to the arbitratoris “simply an additional, antecedent agreement” on which“the FAA operates ... just as it does on any other” arbitrationagreement. Rent-a-Ctr., 561 U.S. at 70. Therefore, if a courtdetermines that an arbitration agreement exists, and if thatagreement delegates arbitrability questions to the arbitrator, acourt may not decide those questions. See Henry Schein, 586U.S. at 69.As set forth below, the Court determines that the partiesformed an agreement to arbitrate, that this agreementdelegates arbitrability questions to the arbitrator, and thatAmazon has not waived its right to compel arbitration throughinconsistent conduct. Accordingly, the Court mandatesarbitration and refrains from ruling on Mr. Mohammed'sunconscionability arguments, which must be referred to thearbitrator.A. Existence of an Arbitration Agreement“[A]rbitration is simply a matter of contract between theparties; it is a way to resolve those disputes—but onlythose disputes—that the parties have agreed to submit toarbitration.” First Options of Chi., Inc. v. Kaplan, 514U.S. 938, 943 (1995). “[B]efore referring a dispute to anarbitrator,” however, “the court determines whether a[n] ...arbitration agreement exists.” Henry Schein, 586 U.S. at69. This issue—whether the parties formed an agreement toarbitrate a certain dispute—is for courts to decide. See GraniteRock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 296 (2010)(“[W]here the dispute at issue concerns contract formation,the dispute is generally for courts to decide.”). In resolvingthat question, courts “apply ordinary state-law principles thatgovern the formation of contracts.” First Options, 514 U.S.at 944. Amazon asserts that Washington law applies here,and Mr. Mohammed does not challenge the substance of thatclaim.1 See BSA § 18 (providing that the BSA's “GoverningLaws” are “the laws of the State of Washington” and otherapplicable federal law). Washington law provides that acontract is formed when the parties “objectively manifest theirmutual assent” to its terms. Hauenstein v. Softwrap Ltd., No.C07-0572MJP, 2007 WL 2404624, at *2 (W.D. Wash. Aug.17, 2017) (citing Keystone Land & Dev. Co. v. Xerox Corp.,152 Wn.2d 171, 177–78 (2004)).*4 Amazon has met its initial burden of showing that theparties formed an agreement to arbitrate. As established bythe evidence Amazon submits, Mr. Mohammed manifestedassent to the terms of the BSA when he registered onlinefor an Amazon selling account. On the Seller Agreementpage, Mr. Mohammed was required to click an “Agree andcontinue” button, and a message above the button indicatedthe following: “By clicking on ‘Agree and continue,’you agree to the Amazon Services Business SolutionsAgreement.” See Gallucci Decl. ¶¶ 7–8. The BSA was“immediately accessible through a hyperlink in blue text.” Id. 8. And Section 18 of the BSA contains the Agreement'sarbitration provisions. See BSA § 18. Under Washingtonlaw, clicking a button to “agree” to the terms of a contractis considered a manifestation of assent to the contract,including any arbitration provisions found therein. See, e.g.,Peters v. Amazon Servs. LLC, 2 F. Supp. 3d 1165, 1167–71 (W.D. Wash. 2013) (compelling arbitration because theplaintiffs clicked on a box indicating they had read Amazon'sBSA and agreed to its terms); Costless Wholesale, Inc. v.Amazon.com Servs. LLC, No. SACV 23-01330-CJC (JDEx),2023 WL 6224825, at *3 (C.D. Cal. Sept. 20, 2023) (findingAmazon's BSA to be “an enforceable ‘clickwrap’ agreement,routinely upheld under Washington law”); Hauenstein, 2007WL 2404624, at *2 (compelling arbitration because theplaintiff “manifested his assent to the License Agreement by‘clicking’ the appropriate box”).Although Mr. Mohammed does not affirmatively disputethat he clicked the “Agree and continue” button, he assertsthat he “has no recollection” of clicking the button, beingpresented with the BSA during the seller registration process,or being advised that he would enter into a binding agreementby clicking the button. See Pls.’ Opp'n at 5. However,neither a plaintiff's “inability to recall seeing reference tothe terms” of a contract nor his “failure to review” themcan overcome objective evidence of assent to the contract.Saeedy v. Microsoft Corp., 757 F. Supp. 3d 1172, 1197 (W.D.Wash. 2024); see also Michak v. Transnation Title Ins. Co.,148 Wash. 2d 788, 799 (2003) (noting that a party is boundto a contract he signed even if he did not read its terms).Amazon need not, and indeed presumably cannot, submitvideo evidence that Mr. Mohammed clicked the “Agreeand continue” button. It is enough that Amazon submittedevidence that, as a matter of course, if a seller does notclick that button, he “cannot advance to the next page ofthe seller registration process, cannot open a selling account,and cannot sell on Amazon.” Gallucci Decl. 7; see alsoRiensche v. Cingular Wireless, LLC, No. C06-1325Z, 2006WL 3827477, at *2 (W.D. Wash. Dec. 27, 2006) (“[E]videncethat signed agreements are required before service will beprovided is evidence of the existence of a contract.” (citing
N-BAR TRADE, INC., et al., Plaintiffs, v. AMAZON.COM..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4Indus. Elec.-Seattle, Inc. v. Bosko, 67 Wash. 2d 783, 797(1966))).Because Mr. Mohammed does not proffer evidence sufficientto rebut Amazon's proof that he manifested assent to theBSA, he has not created an issue of material fact as tocontract formation. See Cureton v. Duke, 272 F. Supp. 3d 56,62 (D.D.C. 2017) (“If the nonmoving party fails to profferrelevant evidence, the moving party may succeed on summaryjudgment.”). Accordingly, the Court concludes that there isno genuine dispute that Amazon and Mr. Mohammed formedan agreement to arbitrate.B. Delegation of ArbitrabilityGiven that the parties agreed to arbitrate, the Court nextconsiders whether their Arbitration Agreement instructs it torefer arbitrability questions to the arbitrator. “Courts shouldnot assume that the parties agreed to arbitrate arbitrabilityunless there is ‘clear and unmistakable’ evidence that theydid so.” First Options, 514 U.S. at 944 (citation modified)(quoting AT&T Techs., Inc. v. Commc'ns Workers of Am.,475 U.S. 643, 649 (1986)). The D.C. Circuit has “held thatthe requisite clear and unmistakable delegation occurs whenthe parties’ agreement incorporates arbitral rules that in turnassign questions of arbitrability to the arbitrator.” Commc'nsWorkers of Am. v. AT&T Inc., 6 F.4th 1344, 1347 (D.C. Cir.2021).Here, Section 18 of the BSA provides: “The arbitrationwill be conducted by the American Arbitration Association(AAA) under its commercial rules.” BSA § 18. The AAAcommercial rules, in turn, provide that “[t]he arbitrator shallhave the power to rule on his or her own jurisdiction,including any objections with respect to the existence, scope,or validity of the arbitration agreement or to the arbitrabilityof any claim or counterclaim,” as well as “the power todetermine the existence or validity of a contract of which anarbitration clause forms a part.” AAA Com. Arb. Rules &Mediation Procs. R-7(a)–(b) (2022). Following D.C. Circuitprecedent, the Court holds that the BSA's incorporation ofAAA rules, which empower the arbitrator to rule on “thearbitrability of any claim” and on “any objection” to the scopeor validity of the Agreement, is “clear and unmistakable”evidence that the parties agreed for the arbitrator todecide threshold arbitrability questions, including whetherMr. Mohammed's contractual claims against Amazon aresubject to arbitration and whether the Arbitration Agreementis invalid due to unconscionability. See id. (emphasisadded); AT&T Inc., 6 F.4th at 1347 (“[T]he parties clearlyand unmistakably delegated arbitrability questions to thearbitrator by incorporating the AAA rules.”).*5 As a final matter before referring these questions toarbitration, the Court addresses whether Mr. Mohammed'schallenge to the validity of the Arbitration Agreementprecludes the Court from enforcing the Agreement'sdelegation provision. Mr. Mohammed argues that theArbitration Agreement is invalid because it is procedurallyand substantively unconscionable. See Pls.’ Opp'n at 4. Itis procedurally unconscionable, Mr. Mohammed contends,given the parties’ unequal bargaining power and the lackof alternative marketplaces for small sellers like Mr.Mohammed, which put pressure on him to accept Amazon'sterms. See id. at 5–7. And it is substantively unconscionable,he claims, because it burdens him with the steep costs ofarbitration. See id. at 7–9.“If a party challenges the validity of a delegation agreement,the district court ‘must consider the challenge before orderingcompliance,’ ” because a party cannot be made to arbitratearbitrability, or any other matter, if he has not agreed todo so through a valid contractual provision. Mercadante, 78F. Supp. 3d at 140 (quoting Rent-A-Ctr., 561 U.S. at 70).However, the validity challenge “must be directed specificallyat the delegation agreement and not at ‘another provision ofthe contract, or to the contract as a whole,’ ” or else a courtcannot consider the challenge. Id. (quoting Rent-A-Ctr., 561U.S. at 70). This is because, unless a party has challengedan agreement's delegation provision specifically, the FAAinstructs courts to treat it as valid and enforce it, “leaving anychallenge to the [a]greement as a whole for the arbitrator.”Rent-A-Ctr., 561 U.S. at 70, 72.The Court must refrain from considering Mr. Mohammed'sunconscionability arguments because they are directed atthe entire Arbitration Agreement, and not at its delegationprovision specifically. Mr. Mohammed does not arguethat the Agreement's incorporation of AAA rules, whichdelegate arbitrability issues to the arbitrator, suffers fromprocedural or substantive unconscionability. In fact, nowherein his Opposition to Amazon's Motion to Compel does Mr.Mohammed even reference arbitrability or the AAA rules,despite Amazon having specifically argued in its Motion thatthe parties agreed to delegate issues of arbitrability to thearbitrator. See Defs.’ Mot. at 11–12. Because Mr. Mohammeddoes not challenge the validity of the Agreement's delegation
N-BAR TRADE, INC., et al., Plaintiffs, v. AMAZON.COM..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5provision, the Court must give it effect. Accordingly, theCourt declines to address objections as to the ArbitrationAgreement's scope and validity, as these matters must bedecided by an arbitrator.2C. WaiverMr. Mohammed asserts that, even if the ArbitrationAgreement is not unconscionable, he should not be compelledto arbitrate because Amazon has waived its right tocompel arbitration under the Arbitration Agreement throughinconsistent conduct. See Pls.’ Opp'n at 11; see also Khanv. Parsons Global Servs., Ltd., 521 F.3d 421, 424–25(D.C. Cir. 2008) (“[C]onsistent with arbitration's contractualbasis, a party may waive its right to arbitration by actinginconsistently with the arbitration right.” (citation modified)).Mr. Mohammed argues that Amazon acted inconsistentlywith its arbitration right by allegedly obstructing the parties’initial attempt at arbitration—for example, by insisting thatthe arbitration be conducted in Washington state (even ifthrough Zoom) as opposed to Mr. Mohammed's preferredlocale of the District of Columbia—and by removing thecurrent case to federal court from the D.C. Superior Courtbefore moving to compel arbitration. See Pls.’ Opp'n at 11–13.This conduct, Mr. Mohammed declares, has prejudiced himand effectively denied him a forum to resolve his contractualclaims against Amazon. See id. at 13.*6 As a preliminary matter, the Court finds that it mayconsider Mr. Mohammed's waiver arguments. Although“gateway procedural issues such as ‘waiver, delay, or a likedefense to arbitrability’ are generally for the arbitrator, not acourt, to resolve,” see Dist. No. 1, Pac. Coast Dist., MarineEng'rs Beneficial Ass'n, AFL-CIO v. Liberty Mar. Corp.,998 F.3d 449, 460 (D.C. Cir. 2021) (quoting Howsam v.Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002)), Mr.Mohammed's “specific assertion here of ‘waiver-through-inconsistent-conduct claims’ ... may be decided by a court,”see HFA Specialty Acquisitions LLC v. NexGen Flight Sols.,LLC, No. 24-cv-1891, 2024 WL 4828043, at *4 (D.D.C.Nov. 19, 2024) (quoting JPD, Inc. v. Chronimed Holdings,Inc., 539 F.3d 388, 394 (6th Cir. 2008)).3 This is forgood reason. As the Sixth Circuit has explained, “[w]aiver-through-conduct issues ordinarily turn on whether a [party]abused the litigation or pre-litigation process, and a courtis most adept at policing procedure-abusing conduct.” JPD,Inc., 539 F.3d at 394.Mr. Mohammed's waiver arguments fail. “[T]he partyasserting waiver must demonstrate: (1) knowledge of anexisting right to compel arbitration and (2) intentionalacts inconsistent with that existing right.” Armstrong v.Michaels Stores, Inc., 59 F.4th 1011, 1015 (9th Cir. 2023).However, Mr. Mohammed submits no evidence that Amazon“engag[ed] in ... litigation conduct evidencing an[ ] intent torelinquish [its] arbitration rights.” HFA, 2024 WL 4828043,at *5. Amazon's choice to remove this case to federal courtbefore moving to compel arbitration is not a “consciousdecision to continue to seek judicial judgment on the meritsof the arbitrable claims.” Martin v. Yasuda, 829 F.3d 1118,1125 (9th Cir. 2016) (emphasis added) (citation omitted).As Amazon notes, it filed its Motion to Compel Arbitrationwithin seven days of removal, as required under Rule 81(c)(2)(C) of the Federal Rules of Civil Procedure. See Defs.’Reply to Pls.’ Opp'n to Defs.’ Mot. (“Defs.’ Reply”) at 13,ECF No. 9. Furthermore, Amazon's evidence shows that, farfrom obstructing the parties’ initial attempt at arbitration,Amazon's disagreement with Mr. Mohammed about theproper locale for arbitration was lodged with the arbitratorand in the manner requested by the arbitrator. See CurranDecl. 6, Ex. D, ECF No. 9-5; id. 7, Ex. E, ECFNo. 9-6. Finally, assuming the truth of Mr. Mohammed'sallegation that he would be prejudiced if forced to arbitrate inWashington state, such allegation does not show that Amazonhas declined to exercise its right to arbitrate or otherwise actedso inconsistently with that right as to constitute waiver. To thecontrary, the Court agrees with Amazon that the proceduralhistory here shows that Amazon has consistently sought tobring Mr. Mohammed's claims to an arbitrator. See Defs.’Reply at 12. Therefore, the Court finds that Amazon has notwaived its right to compel arbitration.V. DISMISSALBecause the Court holds that arbitration is required underthe parties’ Arbitration Agreement, it must decide whetherto dismiss the case without prejudice or to stay it pendingarbitration. “When a district court finds that a lawsuit involvesan arbitrable dispute, and a party requests a stay pendingarbitration, § 3 of the FAA compels the court to stay theproceeding.” Smith v. Spizzirri, 601 U.S. 472, 478 (2024);see also 9 U.S.C. § 3. Here, however, Mr. Mohammed didnot request a stay in his Opposition to Amazon's Motionto Compel Arbitration, even though Amazon argued in itsMotion that the Court should dismiss the case unless Mr.Mohammed requested a stay. See Defs.’ Mot. at 15. The Court
N-BAR TRADE, INC., et al., Plaintiffs, v. AMAZON.COM..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6therefore finds, like other courts in this district, that dismissalis appropriate here. See, e.g., Abadi v. Nat'l R.R. PassengerCorp., No. 22-cv-3684, 2024 WL 4441737, at *5 (D.D.C. Oct.7, 2024), (“[Because] [the plaintiff] made no response to [thedefendant's] request that the Court dismiss the case rather thanissue a stay ... dismissal is appropriate.”); L. Firm of LarJack,PLLC v. Citibank, N.A., No. 21-cv-1592, 2021 WL 4192030,at *6 (D.D.C. Sept. 15, 2021) (dismissing a case rather thanstaying it pending arbitration partly because “plaintiffs madeno response to [the defendant's] request that the Court dismissthe case rather than issue a stay”).VI. USE OF NONEXISTENT QUOTATIONS*7 As this Court has observed, “[c]ourts have recentlyseen increasing reliance on artificial intelligence in legalproceedings, leading to the use of nonexistent citations incourt documents.” Williams v. Cap. One Bank, N.A., No. 24-cv-2032, 2025 WL 843285, at *7 (D.D.C. Mar. 18, 2025);see id. (collecting cases). Concerningly, Mr. Mohammed'scounsel, Mr. Kamal Nawash, may have relied on artificialintelligence to draft Mr. Mohammed's Opposition, whichcontains quotations that do not actually appear in the casesto which they are attributed. See Defs.’ Reply at 11–12 &n.5 (explaining that Amazon was unable to locate severalquotations cited in Mr. Mohammed's Opposition).Mr. Nawash is advised that it is not acceptable to submitfilings to the Court containing nonexistent quotations. Suchconduct contravenes an attorney's duty toward his client toexercise professional judgment and responsibility. See Park v.Kim, 91 F.4th 610, 614 (2d Cir. 2024). In particular, Rule 11(b)(2) of the Federal Rules of Civil Procedure provides that “[b]ypresenting to the court a pleading, written motion, or otherpaper,” an attorney “certifies that to the best of the person'sknowledge, information, and belief, formed after an inquiryreasonable under the circumstances ... the claims, defenses,and other legal contentions are warranted by existing law ....”Fed. R. Civ. P. 11(b)(2). Furthermore, Rule 3.3(a)(1) of theDistrict of Columbia Rules of Professional Conduct providesthat an attorney “shall not knowingly ... [m]ake a falsestatement of fact or law to a tribunal.” D.C. R. Prof. Cond.3.3(a)(1). The Court agrees with the Second Circuit that, atminimum, such rules “require that attorneys read, and therebyconfirm the existence and validity of, the legal authorities onwhich they rely.” Park, 91 F.4th at 615.Courts have taken diverse disciplinary actions againstattorneys who have filed pleadings and other court papersciting nonexistent legal authorities and quotations, rangingfrom striking the pleadings, see, e.g., Grant v. City of LongBeach, 96 F.4th 1255, 1256–57 (9th Cir. 2024); to orderingcounsel to show cause why sanctions should not issue,see, e.g., Mata v. Avianca, Inc., No. 22-cv-1461, 2023 WL3696209, at *1 (S.D.N.Y. May 4, 2023); and referring counselto a court's grievance panel, see, e.g., Park, 91 F.4th at 612.Because this case is being referred to arbitration, the Courtrefrains from taking further action against Mr. Nawash at thistime. However, if this case somehow returns to this Court, Mr.Nawash will be required to show cause why he ought not besanctioned for his use of nonexistent quotations in his filing.VII. CONCLUSIONFor the foregoing reasons, Defendants’ Motion to CompelArbitration (ECF No. 4) is GRANTED and this action isdismissed without prejudice. An order consistent with thisMemorandum Opinion is separately and contemporaneouslyissued.All CitationsSlip Copy, 2025 WL 2986447Footnotes1In his Opposition to Amazon's Motion to Compel, Mr. Mohammed appears to criticize Amazon's contentionthat Washington law governs their contractual dispute. See Pls.’ Opp'n at 12. However, he does not offerany substantive argument as to why District of Columbia law should apply instead. Regardless, the contract-formation inquiry is substantially similar under the laws of Washington state and the District of Columbia, andapplying District of Columbia law would not change the Court's conclusion that the parties here formed an
N-BAR TRADE, INC., et al., Plaintiffs, v. AMAZON.COM..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7agreement to arbitrate. See, e.g., Christian v. Uber Techs., Inc., 775 F. Supp. 3d 272, 278 (D.D.C. 2025).(finding that a contract forms under District of Columbia common law “when the parties ‘express an intentto be bound ...’ ” (citation modified) (quoting Eastbanc, Inc. v. Georgetown Park Assocs. II, L.P., 940 A.2d996, 1004 (D.C. 2008))).2The Court specifically finds that the delegation provision in the parties’ Arbitration Agreement precludesit from considering Mr. Mohammed's arguments that the Agreement is procedurally and substantivelyunconscionable, see Pls.’ Opp'n at 4–10, and that compelling arbitration would deny Mr. Mohammed a forumfor resolving his claims, see id. at 13–16, as this latter argument sounds in substantive unconscionability. Mr.Mohammed does not appear to contest arbitration on the grounds that his contractual dispute falls outsidethe scope of the Arbitration Agreement. Even if he did, the Court finds that this is a question of arbitrabilitythat must be decided by an arbitrator.3Amazon does not appear to argue that the AAA's commercial rules delegate to the arbitrator the power to ruleon claims of waiver through inconsistent conduct. Nevertheless, the Court notes a consensus among circuitsto have considered this question that the AAA's commercial rules do not “clearly and unmistakably” delegatewaiver-through-inconsistent-conduct claims to the arbitrator. See, e.g., Plaintiff's S'holders Corp. v. S. FarmBureau Life Ins. Co., 486 F. App'x 786, 790 (11th Cir. 2012); Martin v. Yasuda, 829 F.3d 1118, 1124 (9th Cir.2016); Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 999 F.3d 257, 265 (5th Cir. 2021).End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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