Goped LTD v. Amazon - Com - Complaint PDF

Case 3:16-cv-00165-MMD-VPC Document 1 Filed 03/23/16 Page 1 of 11
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WILLIAM D. McCANN, ESQ. NV Bar #12038

2589 Wild Horse Road #6
Minden, NV 89423
(925) 998-8099
wdmccann@aol.com
Attorney for Plaintiffs GoPed Ltd., LLC
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEVADA
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GOPED LTD, LLC, a Nevada Corporation

Plaintiff,
vs.
AMAZON.COM INC., a Washington
Corporation, AMAZON FULFILLMENT
SERVICES, INC., a Delaware Corporation
Individual Does 1 through 10
Black and White Corporations 1 through 10
Case No. ______________

COMPLAINT FOR DECLARATORY
RELIEF, DAMAGES ARISING FROM
VIOLATION OF FEDERAL R.I.C.O., FRAUD,
STATE OF NEVADA DECEPTIVE
PRACTICES ACT, STATE OF NEVADA
R.I.C.O, AND UNJUST ENRICHMENT
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Plaintiffs GO PED LTD, LLC, a Nevada Corporation
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NATURE OF THE ACTION

This is an action for:
(1) Declaratory relief requesting that the Court determine:
a. Whether the arbitration and choice of law provisions of a written contract
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between the parties have been waived by AMAZON FULFILLMENT SERVICES,
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INC. and
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b. Whether the written contract as a whole is unconscionable both procedurally and
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substantively, and the arbitration and choice of law provisions thereof void and/or unenforceable
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pursuant to N.R.S. 104.2302 (1) and by virtue of the holdings of the 9th Circuit Court of Appeals
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in Shroyer v. New Cingular Wireless Services Inc., 498 F3rd 976 (9th Circuit Court of Appeals
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2007) and Nagrampa v. Mailcoups, Inc. 469 F.3rd 1257 (9th Circuit Court of Appeals 2006)
(merchant consumer), Pokorny v. Quixar, 601 F. 3rd 987 (9th Cir, 2010), Bridge Fund Capital
Corp. v. Fatbucks Franchise Corp.,a Nevada Corp., 622 F. 3rd 996 (2010) (merchant
merchant), and the Nevada Supreme Court in Burch v. Second Judicial Court of the State of
Nevada, 49 P.3rd 647 (Nv. Sup.Ct. 2002).
(2) Damages arising from violation of federal R.I.C.O.
(3) Damages arising from fraud
(4) Damages arising from violation of State of Nevada Deceptive Practices Act
(5) Damages arising from violation of State of Nevada R.I.C.O
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(6) State of Nevada declaratory relief
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(7) Unjust enrichment
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(6) Treble damages, attorneys fees, and costs

THE PARTIES
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1. Plaintiff GOPED LTD is a limited liability company organized under the

laws of the State of Nevada.
2. Defendant AMAZON.COM INC. (hereinafrter ACI) is a corporation organized under
the laws of the state of Washington.
3. Defendant AMAZON FULFILLMENT SERVICES, INC. (hereinafter AFSI) is a
corporation organized under the laws of the State of Delaware
5.Plaintiffs are informed and believes and thereon alleges that at all times relevant hereto,
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each of the Defendants was the agent, affiliate, director, manager, principal, partner, joint
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venture, and/or alter-ego of the other Defendant and was at all times acting within the scope of
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such agency, affiliate, director, manager, principal, partner, joint venture, and/or alter-ego
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relationship and actively participated in, profited from, or subsequently ratified and adopted, the
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acts or conduct alleged herein with full knowledge of all the facts and circumstances, including,
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but not limited to, full knowledge of the violations of Plaintiffs rights and damages to Plaintiffs
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proximately caused thereby.
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COMPLAINT
JURISDICTION AND VENUE
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6.This Court has original jurisdiction over the subject matter of this case pursuant to 28
U.S.C. 1331, generally, and as to the declaratory relief, specifically pursuant to 28 U.S.C. 2201
(a), over the R.I.C.O. cause of action pursuant to 18 U.S.C. 1965 (a), and has supplemental
jurisdiction over the related state and common law claims pursuant to 28 U.S.C. 1367.
7. This court has diversity jurisdiction over the parties pursuant to 28 U.S.C. 1332 since
they are domiciled in different state and the amount in controversy exceeds $75,000.00 (Seventy
five thousand dollars).
6.Upon information and belief, Defendants, either directly or through their agents,
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transact and have transacted business within the State of Nevada and within this judicial district.
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Defendants expected, or should reasonably have expected, their acts to have consequences in the
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State of Nevada and within this judicial district, subjecting them to the personal jurisdiction of
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this Court.
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7.Venue is proper in this district pursuant to 28 U.S.C. 1391(b) and (c), and (i)
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Defendants are doing business in this judicial district and therefore reside and/or may be found in
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this district, (ii) a substantial part of the events giving rise to the claims alleged herein occurred
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in this district, and/or (iii) the unfair competition occurred in this judicial district, (iv) the
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damages were inflicted and sustained in this district.

ALLEGATIONS COMMON TO ALL COUNTS
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8. Plaintiff GOPED LTD has originated, developed, manufactures, distributes
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and sells in the State of Nevada - a line of two wheeled motorized scooters branded with
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various proprietary marks. It is one of the few if not the only manufacture of motorized vehicles
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left in this state. These scooters are sold and distributed not only in the State of Nevada, but
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nationally and internationally. This court has held the GOPED trademark a famous mark
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within the contemplation of the Lanham act.
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9. In or about 2004, Plaintiffs predecessor in interest, PATMONT MOTOR WERKS
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INC., (hereinafter PMWNV) entered into a written contract (hereinafter THE CONTRACT) with
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defendant AFSI by which AFSI would market PMWNVs products on the internet.
COMPLAINT
10. On December 14th, 2012 PMWNV sought Chapter 11 protection from creditors
in the Nevada Federal Bankruptcy Court. On that day, the Federal Bankruptcy Judge issued
an automatic stay as to all claims against PMWNV. It also tolled all statutes of limitations
of claims by the debtor against third parties. On March 13, 2015, the Federal Bankruptcy
Judge sold the assets of PMWNV to GOPED LTD including all rights, obligations, and
remedies PMWNV had under the CONTRACT. Thus all statutes of limitations on the
claims in this lawsuit were tolled until March 13, 2015.
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11. Beginning in 2012 and continuing through 2014, AFSI began to impose chargebacks
on scooters ordered by their customers which purportedly arrived at AFSI late. Those
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chargebacks sometimes amounted to the full value of the scooters shipped by PMWNV. So, by
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way of illustration, on July 3rd of 2013, per item 10616588VCBSCB, Amazon imposed a
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chargeback by way of penalty for 17 late delivered scooters of: $21,850. 95 (Twenty-one
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thousand eight hundred fifty dollars and ninety-five cents). Amazon shipped these scooters
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to their customers and retained the full amount of their value. In every other case of purportedly
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late delivered scooters, Amazon charged chargebacks are far in excess of a fair or
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reasonable penalty for late delivery. The aggregate amount of chargeback and penalties
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for the relevant period amounts to $216,568.43 (Two hundred sixteen thousand, five hundred
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sixty eight dollars and 43 cents). The gross sales of PMWNV in 2013 was only in the range of
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$1,790,000.00 (One million seven hundred thousand dollars). AFSI, which was only one of
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PMWNVs distribution channels, retained almost 17% (Seventeen percent) of its gross sales.
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10. The CONRACT, at page 4, item 10 (b) contains an adhesive provision which states
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that it is governed by the Federal Arbitration Act, applicable U.S. federal law, and Washington
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state law. It stipulates Arbitration before the American Arbitration Association and according to
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its rules. It requires a vendor, such as PMWNV or GOPED LTD, to initiate arbitration by
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serving Corporation Service Company, 300 Deschutes Way SW, Suite 304, Tumwater,
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WA 98501. If vendors wish to sell through Amazon they must accept this provision; there is
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no negotiation possible, and, therefore, no mutuality.
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11. On September 30, 2015, after GOPED LTD had legally purchased the assets
COMPLAINT
and choses in action of PMWNV, free of all claims and liens, counsel for GOPED LTD sent, via
certified mail, a Demand for Arbitration (hereinafter THE DEMAND) as stipulated by the
CONTRACT. This certified mail was signed for by a C Jones of Corporation Service
Corporation on Monday, October 5th, 2015. A copy was sent via facsimile to the General
Counsel of AFSI on the same date, to wit, on October 5th, 2015.
Plaintiffs counsel heard nothing from either Corporation Service Company, or AFSI.
On Monday, October 7th, 2015 a paralegal called the American Arbitration Association in
Seattle to determine whether it had received paperwork from either Corporation Service
Company or AFSI initiating the arbitration.
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The American Arbitration Associated stated it had not. The paralegal called Corporation
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Service Company on October 7th . A representative stated THE DEMAND had been hand
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delivered to Corporation Servicess client, AFSI. Nothing was heard from AFSI.
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On October 7, 2015, the paralegal called AFSI concerning the matter but AFSI failed to return
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the paralegals call.
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On October 15th, 2015, counsel, by FEDERAL EXPRESS, sent again THE DEMAND
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to AFSIs offices in Seattle. No response to that FEDEX was received.
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On October 26, 2015, counsel again sent, both by FEDERAL EXPRESS and FAX, a
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second demand for arbitration, including the original September 30th, 2015 demand.
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No response to either the FAX or the FEDERAL EXPRESS transmitted demand was
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received.
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THE CLAIMS FOR RELIEF
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FIRST CLAIM FOR RELIEF
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Federal Declaratory Relief
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12. Plaintiff incorporates by reference allegations 1 through 11 herein
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13. An actual controversy has arisen between Plaintiff and Defendants in
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this judicial district as follows:
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a. Plaintiff claims the arbitration and choice of law provisions of a written contract
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between the parties have been waived by AFSI in refusing to participate in arbitration in the
COMPLAINT
State of Washington provided by the CONTRACT, and as specifically set forth in allegation 11.
Defendant disputes this contention.
b. Plaintiff claims that the arbitration and choice of law provisions of the CONTRACT
are void as a matter of law as unconscionable, tied as they are to the enforcement of an
oppressive, fraudulent, and commercially unreasonable chargeback clause. See, the 9th Circuit
Court of Appeals in Shroyer v. New Cingular Wireless Services Inc., 498 F3rd 976 (9th Circuit
Court of Appeals 2007) and Nagrampa v. Mailcoups, Inc. 469 F.3rd 1257 (9th Circuit Court of
Appeals 2006). Defendants dispute this contention.
14. Plaintiff therefore requests a declaration that:
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a. The arbitration/choice of law provisions of the CONTRACT have been waived and/or
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b. That the arbitration/ choice of law provisions of the contract are void.
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Plaintiffs advise this court that other damaged vendors at the hands of AFSI have attempted
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to persuade Washington federal courts to disregard the noted arbitration/choice of law
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provisions without success. See, for example, Jo Ellen Peters v. Amazon Services LLC,
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2 F. Supp. 3rd 1156 (W.D. Washington 2013) and Dr. A. Cemal Ekin v. Amazon Services
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LLC, C-14-0244-JCC (W.D. Washington 2014). However, in neither presented facts warranting
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a finding of waiver or unconscionability, as here.
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SECOND CLAIM FOR RELIEF
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Federal Civil R.I.C.O.
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15. Plaintiff incorporates by reference allegations 1 through 11 herein.
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16. Defendants ACI and AFSI conduct an online marketing service using interstate
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transmission lines including telephone lines, wireless communication towers, and distribute
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their products through private vendors and through the United States mail. As noted supra,
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Plaintiffs assignor PMWNV entered into a contract with defendant AFSI for the sale and
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distribution of its product line of motorized scooters.
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17. ACI and AFSI are retail enterprises within the meaning of 18 U.S.C. 1961 (4).
(hereinafter R.I.C.O.)
18. ACI and AFSI have engaged in a pattern of racketeering activity by unilaterally
COMPLAINT
imposing charge backs and/or penalties on vendors without according them the right to
seek restitution in a convenient and/or affordable forum, since the clause in the CONTRACT
set forth in paragraph 10, supra, is required and enforced in all 50 (fifty) states. In effect,
AFSI converted and stole the GOPED products, so they became stolen property within
contemplation of R.I.C.O.
19. ACT and AFSI have engaged in the following predicate acts:
a. Devised a scheme or artifice to defraud vendors who use their marketing services by
contractually imposing upon them an adhesive arbitration/choice of law clause coupled
with a policy of failing to arbitrate contractual disputes when demanded to do, with
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the result that vendors are deprived of payment by virtue of a usurious and unfair
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chargeback or penalty policy. This scheme or artifice is wire fraud since defendants
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marketing is accomplished via the internet, which is largely carried by wire, in violation of
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18 U.S.C. 1343.
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b. Violated 18 U.S.C. 1341 by inducing vendors to send goods or products to them
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through the United States mail with the intent of, in some cases, retaining the full retail value
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of the goods and/or products as chargebacks or penalties, and in other cases, retaining an
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unfair and unconscionable portion of the full retail value of the goods and/or products as
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chargebacks or penalties. Defendants in effect stole Plaintiffs products, and then used the
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United States mail or private delivery services to distribute them.
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c. Since Plaintiffs products are motor vehicles within the definition of 18 U.S.C. 2311,
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violated 18 U.S.C. 2312 by first stealing plaintiffs products, and then transporting the stolen
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motor vehicles in interstate commerce.
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c. Through their scheme and device as defined in 19. a., supra, violated 18 U.S.C. 1951 insofar
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as defendants extorted products from plaintiffs, negatively affecting United States commerce.
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Specifically, because of the retention of the full fair market value of the motorized GOPED
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products, PMWNV could not purchase parts for other orders and create inventory, lost those
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orders, and lost other sales, which negatively affected their business but interstate commerce.
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The term extortion in this cause of action means the obtaining of property from another, with
COMPLAINT
his consent, and then retaining without paying for same, induced by fraud and/or under color of
official right.
d. Through their scheme and device as defined in 19 a., supra, violated 18 U.S.C 2314 in so
far as they are transferred in interstate or foreign commerce any goods, wares, merchandise
of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by
fraud
20. These acts caused injury to the business of Plaintiffs assignor as follows:
a. Actual damages in the amount of $216, 568.63 (Two hundred sixteen thousand, five hundred
sixty eight dollars and 43 cents).
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b. Lost sales in the amount of at least $1,000,000.00 (One million dollars) because PMWNV did
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not have the cash flow to purchase parts and materials for actual sales on the books, and
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prospective sales.
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c. PMWNV lost its ability to file an approved Chapter 11 plan because during the pendency
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of its Chapter 11 proceedings it was not profitable.
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d. PMWNV lost key employees because it could not pay them, which damaged its assignee,
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GOPED LTD because employees of the experience and skill of those lost could not be
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replaced.
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e. Lost profits in the amount of at least $400,000.00 (Four hundred thousand dollars).
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f. Lost goodwill because of inability to deliver product.
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THIRD CLAIM FOR RELIEF
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Fraud
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22. The acts and omissions of Defendants, plead with particularity supra, represent common
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law fraud.
23. Plaintiff and plaintiffs assignor have been damaged as a result of said fraud as set forth
in allegation 20, supra.
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FOURTH CLAIM FOR RELIEF
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COMPLAINT
State of Nevada Deceptive Trade Practices, N.R.S. 598 et seq
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25. Plaintiff and plaintiffs assignee are protected entities pursuant to N.R.S. 598.0915
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sections 9 and 15, and N.R.S. 598.0923

26. Plaintiff violated N.R.S. 598 sections 9 and 15 by engaging in the conduct described,
supra.
27. Plaintiff engaged in deceptive trade practices as defined by N.R.S. 598.0923
by knowingly and intentionally:
a. Failing to disclose a material fact in the sale of its services to PMWNV, to wit, the fact
that it secretly intended to retain the full retail value of PMWNVs products should their delivery
be late and
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b. Violating state and federal statutes with respect to the sale of its services.
28. Plaintiff is therefore entitled to the relief provided in N.R.S.598.0993
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FIFTH CLAIM FOR RELIEF
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State of Nevada Declaratory Relief
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30. The CONTRACT is unconscionable pursuant to N.R.S. 104.2302 (1).
31. Plaintiff prays that this court declare said CONTRACT unconscionable and, therefore, its
arbitration/choice of law provisions unenforceable pursuant to N.R.S. 104.2302 (1).
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SIXTH CLAIM FOR RELIEF
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State of Nevada R.I.C.O: N.R.S. 207.400
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32. Defendants' acts and omissions are in violation of N.R.S. 207.400
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33. Plaintiff has been damaged as set forth supra, and entitled to treble damages, costs
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and attorneys fees as provided by N.R.S. 207.470.
SEVENTH CLAIM FOR RELIEF
Unjust Enrichment
35. Defendants retention of Plaintiffs funds constitutes unjust enrichment.
36. Plaintiff is entitled to restitution of said retained funds.
WHEREFORE PLAINTIFF PRAYS:
1. Pursuant to the First Claim for Relief : A declaratory judgment as prayed.
2. Pursuant to the Second Claim for Relief: Pursuant to U.S.C. 1684 (c)
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a. An award of damages
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b. That those damages be trebled
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c. An award of reasonable attorneys fees and costs
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3. Pursuant to the Third Claim for Relief: Damages according to proof, including an
an award of punitive damages.
4. Pursuant to the Fourth Claim for Relief: Such damages as may be provided by
N.R.S.598.0993.
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5. Pursuant to the Fifth Claim for Relief: A declaratory judgment as prayed.
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6. Pursuant to the Sixth Cause of Action: Pursuant to N.R.S. 207.470:
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a. An award of damages
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b. That those damages be trebled
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c. An award of reasonable attorneys fees and costs
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7. Pursuant to the Seventh Cause of Action: Restitution of all sums belonging to Plaintiff
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retained by Defendants by which they have been unjustly enriched.
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Respectfully submitted
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March 23rd, 2016
/s/ William D. McCann

William D. McCann, Esq.
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COMPLAINT
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COMPLAINT
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Case 3:16-cv-00165-MMD-VPC Document 1 Filed 03/23/16 Page 1 of 11

WILLIAM D. McCANN, ESQ. NV Bar #12038

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEVADA

GOPED LTD, LLC, a Nevada Corporation

Case No. ______________

Plaintiffs GO PED LTD, LLC, a Nevada Corporation

NATURE OF THE ACTION

between the parties have been waived by AMAZON FULFILLMENT SERVICES,

b. Whether the written contract as a whole is unconscionable both procedurally and

Case 3:16-cv-00165-MMD-VPC Document 1 Filed 03/23/16 Page 2 of 11

Nevada, 49 P.3rd 647 (Nv. Sup.Ct. 2002).

(2) Damages arising from violation of federal R.I.C.O.

(3) Damages arising from fraud

(5) Damages arising from violation of State of Nevada R.I.C.O

(6) State of Nevada declaratory relief

(7) Unjust enrichment

(6) Treble damages, attorneys fees, and costs

1. Plaintiff GOPED LTD is a limited liability company organized under the

proximately caused thereby.

Case 3:16-cv-00165-MMD-VPC Document 1 Filed 03/23/16 Page 3 of 11

JURISDICTION AND VENUE

five thousand dollars).

damages were inflicted and sustained in this district.

8. Plaintiff GOPED LTD has originated, developed, manufactures, distributes

within the contemplation of the Lanham act.

9. In or about 2004, Plaintiffs predecessor in interest, PATMONT MOTOR WERKS

Case 3:16-cv-00165-MMD-VPC Document 1 Filed 03/23/16 Page 4 of 11

claims in this lawsuit were tolled until March 13, 2015.

no negotiation possible, and, therefore, no mutuality.

Case 3:16-cv-00165-MMD-VPC Document 1 Filed 03/23/16 Page 5 of 11

Counsel of AFSI on the same date, to wit, on October 5th, 2015.

Company or AFSI initiating the arbitration.

the paralegals call.

to AFSIs offices in Seattle. No response to that FEDEX was received.

THE CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

Federal Declaratory Relief

12. Plaintiff incorporates by reference allegations 1 through 11 herein

13. An actual controversy has arisen between Plaintiff and Defendants in

this judicial district as follows:

Case 3:16-cv-00165-MMD-VPC Document 1 Filed 03/23/16 Page 6 of 11

Defendant disputes this contention.

Appeals 2006). Defendants dispute this contention.

14. Plaintiff therefore requests a declaration that:

to persuade Washington federal courts to disregard the noted arbitration/choice of law

a finding of waiver or unconscionability, as here.

SECOND CLAIM FOR RELIEF

Federal Civil R.I.C.O.

15. Plaintiff incorporates by reference allegations 1 through 11 herein.

distribution of its product line of motorized scooters.

Case 3:16-cv-00165-MMD-VPC Document 1 Filed 03/23/16 Page 7 of 11

contractually imposing upon them an adhesive arbitration/choice of law clause coupled

b. Violated 18 U.S.C. 1341 by inducing vendors to send goods or products to them

United States mail or private delivery services to distribute them.

motor vehicles in interstate commerce.

Case 3:16-cv-00165-MMD-VPC Document 1 Filed 03/23/16 Page 8 of 11

sixty eight dollars and 43 cents).

of its Chapter 11 proceedings it was not profitable.

f. Lost goodwill because of inability to deliver product.

THIRD CLAIM FOR RELIEF

21. Plaintiff incorporates by reference allegations 1 through 20 herein.