Cross et al v. Amazon.com Inc et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-02099-NYW-SBP
LEAH CROSS,
MARCO GRANGER-RIVERA,1
RYAN SCHILLING, and
CASSIE WHINNIE, individually and on behalf of those similarly situated,
Plaintiffs,
v.
AMAZON.COM, INC., and
AMAZON LOGISTICS, INC.,
Defendants.
ORDER
This matter comes before the Court on the Defendants Amazon.com, Inc. and
Amazon Logistics, Inc.’s Motion to Compel Arbitration and Dismiss or Stay Claims
Pending Arbitration (the “Motion to Compel” or “Motion”), [Doc. 25, filed November 6,
2023], filed by Defendants Amazon.com, Inc. and Amazon Logistics, Inc. (together,
“Defendants” or “Amazon”). Plaintiffs Leah Cross, Marco Granger-Rivera, Ryan Schilling,
and Cassie Whinnie, proceeding both individually and on behalf of all others similarly
situated (together, “Plaintiffs”), have filed a Response to Motion to Compel Arbitration,
[Doc. 38], to which Defendants have filed a Reply, [Doc. 42]. 	The Court finds that oral
argument will not materially assist in the disposition of the Motion to Compel. Upon review
of the Parties’ briefing, the entire docket, and the applicable case law, this Court
1 The Clerk of Court is DIRECTED to update the docket and caption to reflect the
hyphenation of Plaintiff Marco Granger-Rivera’s last name. See, e.g., [Doc. 24 at ¶ 20].
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respectfully GRANTS in part and DENIES in part the Motion.
BACKGROUND
The following overview is based on the allegations in the Amended Class Action
Complaint (the “Amended Complaint”), [Doc. 24], as well as the unrebutted declarations
submitted in connection with the Motion to Compel, see, e.g., [Doc. 25-1]. Amazon is a
multinational corporation with hundreds of billions of dollars in annual revenue. [Doc. 25
at ¶ 2]. As a “commercial seller of electronic and consumer goods,” Amazon delivers its
products to customers’ homes and businesses throughout the United States. [Id. at ¶ 25].
To do so, Amazon relies upon local transposition and logistic companies known as
Delivery Service Partners (“DSPs”). [Id. at ¶ 26]. DSPs provide what is known as “last-
mile delivery,” [id. at ¶ 27], driving packages from Amazon warehouses to customers’
homes or businesses. According to the Amended Complaint, DSPs “effectively serve as
Amazon’s agents to facilitate deliveries.” [Id.].
The relationship between Amazon and DSPs is multifaceted. 	Amazon equips
DSPs with “everything they need to become operational”; DSPs may obtain delivery
vehicles through an Amazon partner; DSPs often depend on payments from Amazon to
make payroll; Amazon terminates DSPs whose drivers fail to meet Amazon’s delivery
requirements; Amazon recruits delivery drivers and provides applicant information to local
DSPs for interviews; Amazon directs DSP drivers as to “where to make deliveries, in what
order, and what route to take”; and Amazon closely monitors delivery driver conduct and
performance. [Id. at ¶¶ 27–29, 31–32, 35–37].
Plaintiffs are current and former “Amazon delivery driver[s]” in Colorado. 	[Id. at
¶¶ 18–21]. 	Although they were not directly employed by Amazon, they were employed
by various DSPs which, as discussed above, share a close relationship with Amazon.
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See [id. at ¶¶ 44, 52, 54, 72]. The Amended Complaint alleges that Amazon’s demanding
work conditions and requirements effectively prevent DSP drivers from taking any rest
breaks during their shifts. See [id. at ¶ 61]. Plaintiffs further allege that “Amazon’s work
quotas and extensive workplace surveillance cause devastating human costs to delivery
drivers who, as a condition of maintaining their livelihoods working for the company, are
forced to suffer degrading experiences like urinating in bottles, defecating in the back of
delivery vehicles, or holding their urine to the point of risking harm to their health, including
urinary tract infections.” 	[Id. at ¶ 63]. 	These dynamics are allegedly well known to
Amazon, whose facility “trash cans are full of urine-filled bottles, as are trash cans at gas
stations located near Amazon facilities.” 	[Id. at ¶ 64–65]. 	And DSP drivers with typical
female anatomy face additional challenges keeping up with Amazon’s demands. See [id.
at ¶¶ 72–82].
The Amended Complaint sets out five claims, each brought individually as well as
in a representative capacity on behalf of one of three different classes. First, all Plaintiffs
bring a claim for unpaid wages under the Colorado Wage Claim Act individually and on
behalf of the “Rest Break Class,” which is preliminarily defined as “all employees who
delivered packages for Amazon as DSP drivers in Colorado from six years prior to the
filing of this lawsuit through final judgment” (“Count I”). [Id. at ¶¶ 83, 85–91]. Second, all
Plaintiffs bring a claim for unpaid minimum wages and overtime under the Colorado
Minimum Wage Act individually and on behalf of the Rest Break Class (“Count II”). 	[Id.
at ¶¶ 92–97]. Third, all Plaintiffs bring a claim for civil theft individually and on behalf of
the Rest Break Class (“Count III”). 	[Id. at ¶¶ 98–106]. 	Fourth, the Amended Complaint
includes allegations in support of a claim under the Colorado Anti-Discrimination Act
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(“CADA”) by Plaintiffs Leah Cross and Cassie Whinnie individually and on behalf of the
“Disparate Impact Class,” which is preliminarily defined as “all employees who have
typical female anatomy and delivered packages for Amazon as DSP drivers in Colorado”
(“Count IV”). [Id. at ¶¶ 83, 107–21]. However, the Amended Complaint alleges that the
CADA claim is still being exhausted and that “Plaintiffs will amend to add such a claim
following the administrative exhaustion.” [Id. at ¶ 121]. Fifth and finally, Plaintiff Cassie
Whinnie brings a claim for unpaid wages under the Denver Minimum Wage and Wage
Theft Ordinance individually and on behalf of the “Denver Wage Theft Class,” preliminarily
defined as “all workers who delivered packages for Amazon as DSP drivers in the City
and County of Denver” (“Count V”). [Id. at ¶¶ 83, 122–26].
Amazon has moved to compel arbitration. 	[Doc. 25]. 	Among other materials,
Amazon submits the Declaration of Alexis Cantwell-Badyna (“Ms. Cantwell-Badyna”), an
Amazon employee responsible for aspects of Amazon’s DSP program. [Doc. 25-1]. Ms.
Cantwell-Badyna declares that Plaintiffs electronically agreed to a Mutual Agreement to
Individually 	Arbitrate 	Disputes 	(the 	“Arbitration 	Agreement”) 	during 	their 	online
registration processes. 	[Id. at ¶¶ 1, 3, 7–10]. 	Declarations on behalf of the individual
DSPs echo this assertion. See, e.g., [Doc. 25-2]. Plaintiffs do not dispute that they signed
this Arbitration Agreement or otherwise present any evidence in their opposition to the
Motion. See generally [Doc. 38].
The Arbitration Agreement includes the following language:
Covered Claims. Except as explained in the section “Claims Not Covered”
below, 	this 	Mutual 	Agreement 	to 	Individually 	Arbitrate 	Disputes 	(this
“Agreement”) covers all past, current, and future grievances, disputes,
claims, issues, or causes of action (collectively, “claims”) under applicable
federal, state or local laws, arising out of or relating to (a) Employee’s
application, hiring, hours worked, services provided, and/or employment
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with the Company2 or the termination thereof, and/or (b) a Company policy
or practice, or the Company’s relationship with or to a customer, vendor, or
third party, including without limitation claims Employee may have against
the Company and/or any Covered Parties (defined below), or that the
Company may have against Employee.
. . .
The Employee and the Company each specifically acknowledges and
agrees that any claims brought by the Employee against any of the Covered
Parties, 	whether 	brought 	jointly 	or 	severally 	with 	claims 	against 	the
Company, shall be subject to arbitration under this Agreement. 	“Covered
Parties” means the Company, any entity formerly or currently owned,
affiliated, controlled or operated by the Company (a “company entity”),
clients of the Company or a company entity, and the former and current
officers, directors, managers, employees, owners, attorneys, agents, and
vendors of the Company and/or a company entity and/or clients of the
Company.
. . .
Waiver of Class, Collective, Consolidated and Representative Action
Claims. 	Each of the Employee and the Company expressly intends and
agrees, to the absolute maximum extent permitted by law, that: (a) class
action, collective action, or consolidated action procedures are hereby
waived and shall not be asserted in arbitration or in court, nor will they apply
in any arbitration pursuant to this Agreement; (b) representative action
procedures are hereby waived and shall not be asserted in arbitration or in
court, nor will they apply in any arbitration pursuant to this Agreement; (c)
each will not assert class action, collective action, consolidated action or
representative action claims against the other in arbitration or court or
otherwise; and (d) the Employee and the Company shall only submit their
own, individual claims in arbitration and will not seek to represent the
interests of any other person. No arbitrator selected to arbitrate any claim
covered by this Agreement is authorized to arbitrate any claim on a class,
collective, consolidated, or representative basis.
In 	the 	event 	the 	waiver 	of 	representative 	actions 	is 	found 	to 	be
unenforceable in whole or in part, then the representative action will be
heard in court, not arbitration, as to the portion of the representative claim
to which the waiver is found to be unenforceable and all other Covered
Claims will remain subject to arbitration. 	In that event, the representative
2 The term “Company” is undefined in the Arbitration Agreement, see, e.g., [Doc. 25-1 at
6–8], but all seem to agree that it refers to the relevant DSP, and not Amazon.
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claim in court shall be stayed until the arbitration is concluded, unless such
stay is contrary to applicable law.
Notwithstanding any provision in the applicable arbitration rules, a court of
law must resolve any dispute concerning the validity and enforceability of
the Agreement, and the validity, enforceability or interpretation of the
provisions pertaining to class, collective, and representative action waivers.
The arbitrator must resolve all other disputes, including the arbitrability of
claims pursuant to such other provisions.
. . .
Severability. If any provision of this Agreement to arbitrate is adjudged to
be void or otherwise unenforceable, in whole or in part, the void or
unenforceable provision shall be severed and such adjudication shall not
affect the validity of the remainder of this Agreement to arbitrate. The only
exception is that this Agreement is not, and shall never be construed as,
reformed to be, or enforced as if it were, an agreement to arbitrate claims
on 	a 	class, 	collective, 	consolidated, or 	representative 	basis. 	Stated
differently, under no circumstance will a claim be allowed to proceed in
arbitration as a class action, collective action, consolidated action, or
representative action.
[Doc. 25-1 at 6–8].3 The Motion to Compel is now fully briefed, [Doc. 25; Doc. 38; Doc.
42], and ripe for resolution.
LEGAL STANDARD
The Federal Arbitration Act (“FAA”) provides that contractual agreements to
arbitrate disputes “shall be valid, irrevocable, and enforceable, save upon such grounds
as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Section 3 of
the FAA obligates courts to stay litigation on matters that the parties have agreed to
arbitrate, while section 4 authorizes a federal district court to compel arbitration for a
dispute over which it would have jurisdiction. 	See 9 U.S.C. §§ 3–4. 	“By its terms, the
[FAA] leaves no place for the exercise of discretion by a district court, but instead
3 The Court cites to the document and page numbers generated by this District’s Case
Management/Electronic Case Files system, rather than the page numbers assigned by
the Parties.
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mandates that district courts shall direct the parties to proceed to arbitration on issues as
to which an arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd,
470 U.S. 213, 218 (1985). And Colorado state law contains analogous provisions in the
Colorado Uniform Arbitration Act (“CUAA”). See, e.g., Colo. Rev. Stat. § 13-22-206.
But, because “arbitration is a matter of contract,” the Court cannot require a party
“to submit to arbitration any dispute which he has not agreed so to submit.” Howsam v.
Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (citation omitted). 	Indeed, “[t]he
existence of an agreement to arbitrate is a threshold matter which must be established
before the FAA can be invoked.” 	Avedon Eng’g, Inc. v. Seatex, 126 F.3d 1279, 1287
(10th Cir. 1997). The party seeking to compel arbitration bears the burden of establishing
that the matter at issue is subject to arbitration. See Hancock v. Am. Tel. & Tel. Co., Inc.,
701 F.3d 1248, 1261 (10th Cir. 2012); GATX Mgmt. Servs., LLC v. Weakland, 171 F.
Supp. 2d 1159, 1162 (D. Colo. 2001). “Unlike the general presumption that a particular
issue is arbitrable when the existence of an arbitration agreement is not in dispute, when
the dispute is whether there is a valid and enforceable arbitration agreement in the first
place, the presumption of arbitrability falls away.” 	Riley Mfg. Co. v. Anchor Glass
Container Corp., 157 F.3d 775, 779 (10th Cir. 1998). 	“Unless the parties clearly and
unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is
to be decided by the court, not the arbitrator.” 	Id. (quoting AT & T Techs., Inc. v.
Commc’ns Workers of Am., 475 U.S. 643, 649 (1986)).
ANALYSIS
I. 	Whether Amazon May Enforce Plaintiffs’ Arbitration Agreements
At the outset, the Parties dispute whether Amazon may enforce arbitration clauses
found in contracts between Plaintiffs and the various DSPs to which Amazon is not a
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formal party. See, e.g., [Doc. 25-3 at 13–15]. Amazon contends that it has the contractual
authority to enforce these agreements either as their third-party beneficiary or under
principles of agency law. See [Doc. 25 at 13–15]. The Court agrees with Amazon as to
the former theory and need not reach the latter.
“Colorado law recognizes that a person not a party to an express contract may
bring an action on the contract if the parties to the agreement intended to benefit the non-
party, provided that the benefit claimed is a direct and not merely incidental benefit of the
contract.” 	Baker v. Wood, Ris & Hames, Pro. Corp., 364 P.3d 872, 881 (Colo. 2016).
“The critical fact that determines whether a nonsignatory is a third-party beneficiary is
whether the underlying agreement manifests an intent to confer specific legal rights upon
the nonsignatory.” N.A. Rugby Union LLC v. U.S. Rugby Football Union, 442 P.3d 859,
865–66 (Colo. 2019) (cleaned up). “[A] nonparty, such as a third-party beneficiary, may
fall within the scope of an arbitration agreement if the parties to the contract so intend.”
Parker v. Ctr. for Creative Leadership, 15 P.3d 297, 298 (Colo. App. 2000). 	“While the
intent to benefit the non-party need not be expressly recited in the contract, the intent
must be apparent from the terms of the agreement, the surrounding circumstances, or
both.” Parrish Chiropractic Ctrs., P.C. v. Progressive Cas. Ins. Co., 874 P.2d 1049, 1056
(Colo. 1994).
Defendants argue that “the contracting parties showed an intent for their arbitration
agreements to benefit Amazon and other clients of the DSP employers.” [Doc. 25 at 14].
Amazon emphasizes that the claims at issue in this litigation fall within the claims covered
by the Arbitration Agreement and suggests that it is a “Covered Party” for purposes of the
contract because it is the DSPs’ “client.” See [id.]. Plaintiffs respond that the Arbitration
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Agreement’s “intentional omission of any mention of Amazon” demonstrates that the
parties did not actually intend to confer a benefit upon Amazon. 	See [Doc. 38 at 12].
They suggest that Amazon’s “conclusory” assertion that it is a “Covered Party” under the
Arbitration Agreement because it is the DSPs’ client is “insufficient,” and they question
whether Amazon meets the definition of a “client.” [Id. at 13–14].
It is undisputed that the Arbitration Agreement does not name Amazon, see, e.g.,
[Doc. 25-1 at 6–8], although that is not the end of the inquiry. To be sure, the Court heeds
Plaintiffs’ authority that “a nonparty generally cannot enforce contract provisions, or be
bound by them, where the provisions do not specifically address the nonparty.” Chandler-
McPhail v. Duffey, 194 P.3d 434, 438 (Colo. App. 2008). But Plaintiffs do not assert, nor
does the law support the proposition that, the omission of a nonparty’s name is dispositive
as to third-party beneficiary status. 	See, e.g., Winter Park Real Est. & Inv., Inc. v.
Anderson, 160 P.3d 399, 406 (Colo. App. 2007); Everett v. Dickinson & Co., Inc., 929
P.2d 10, 14 (Colo. App. 1996). 	Here, Amazon’s close relationship with both the DSPs
and the Plaintiffs, illustrated by the Amended Complaint and Defendants’ evidentiary
materials, compels the conclusion that the Arbitration Agreement is intended to benefit
Amazon.
Considering the “surrounding circumstances” that tie Amazon to the Arbitration
Agreement, see Winter Park Real Est. & Inv., Inc., 160 P.3d at 406, the omission of
Amazon’s name is not dispositive. 	Plaintiffs themselves recognize that the Arbitration
Agreement constitutes “a form contract provided by Amazon for use in a registration
process required by Amazon,” and that Amazon maintains close “involvement in the
registration process and substantial control over many aspects of the DSP-driver
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employment relationship.” [Doc. 38 at 12]; see also Chandler-McPhail, 194 P.3d at 439
(finding “structure” relevant to assessing third-party beneficiary status). Indeed, Plaintiffs
refer to themselves as “Amazon delivery drivers” throughout the Amended Complaint.
See, e.g., [Doc. 24 at ¶¶ 1, 18–21]. And each Arbitration Agreement extends to “Covered
Parties,” a term broadly defined to encompass “the [DSP], any entity formerly or currently
owned, affiliated, controlled or operated by the [DSP] (a “company entity”), clients of the
[DSP] or a company entity, and the former and current officers, directors, managers,
employees, owners, attorneys, agents, and vendors of the [DSP] and/or a company entity
and/or clients of the [DSP].” See [Doc. 25-1 at 6]. While the Parties disagree about how
to apply dictionary definitions for terms like “client,” the Court finds no reasonable dispute
that Amazon is either a client or a vendor of the DSPs such that it is a “Covered Party.”
See Copper Mountain Inc. v. Indus. Sys., Inc., 208 P.3d 692, 697 (Colo. 2009) (“To
determine the intent of the parties, the court should give effect to the plain and generally
accepted meaning of the contractual language.”); see also Smith v. Amazon.com Servs.,
Inc., 2:21-cv-12811-SRC-AME, 2022 WL 1002099, at *2 (D.N.J. Apr. 4, 2022) (noting that
language of arbitration agreement with respect to covered parties can “reflect[] the mutual
intention” of the parties to allow covered parties to enforce the agreement). 	The Court
finds that Amazon is a third-party beneficiary of the contract DSPs use to onboard
“Amazon delivery drivers” to deliver Amazon packages in Amazon-branded vehicles
wearing Amazon uniforms under Amazon’s supervision.4
4 Plaintiffs also argue:
[I]f the Court finds that Amazon has successfully placed its status in dispute,
Plaintiffs respectfully request that the Court order discovery and a trial on
the limited issue of Amazon’s ability to enforce the arbitration provisions,
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II. 	Federal Arbitration Act
On the merits, the principal issue is whether and to what extent the Arbitration
Agreement is enforceable under federal or state law. 	The relevant statutes are the
Federal Arbitration Act and the Colorado Uniform Arbitration Act. 	Because Defendants
essentially concede that at least one of Plaintiffs’ claims (Count I) is not arbitrable under
the CUAA, see [Doc. 42 at 6], the Court begins by assessing the extent to which the FAA
applies to the Amended Complaint.
“The FAA provides generally that arbitration agreements are ‘valid, irrevocable,
and enforceable, save upon such grounds as exist at law or in equity for the revocation
of any contract.’” 	Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246, 250
(2024) (quoting 9 U.S.C. § 2). 	However, the FAA exempts “contracts of employment of
seamen, railroad employees, or any other class of workers engaged in foreign or
interstate commerce.” 9 U.S.C. § 1. This exclusion for “transportation workers” must be
construed narrowly. 	Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 118–19 (2001).
particularly whether Amazon is a “client” of the DSPs and whether the DSPs
had actual authority to enter into the agreement on Amazon’s behalf,
because those are material disputes of fact that warrant discovery and a
summary trial under the FAA.
[Doc. 38 at 16]. Plaintiffs cite authority for holding trials where there is a genuine dispute
of material fact as to the existence of an Arbitration Agreement. See, e.g., Stein v. Burt-
Kuni One, LLC, 396 F. Supp. 2d 1211, 1213 (D. Colo. 2005). But Plaintiffs, who have not
submitted any factual materials in connection with their briefing, see generally [Doc. 38],
fail to meet their burden to justify trial or discovery where Amazon’s third-party beneficiary
status appears to present a straightforward legal question. 	Considering the rationale
behind the Court’s determination with respect to Amazon’s third-party beneficiary status,
the Court agrees with Defendants that “[t]here is no need to go on a fishing expedition for
discovery,” [Doc. 42 at 10], and concludes that Amazon may enforce the Arbitration
Agreement, see N.A. Rugby Union LLC, 442 P.3d at 866 (“Nonsignatories who are
intended third-party beneficiaries of an agreement containing an arbitration clause are
bound by that agreement.”).
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Amazon argues both that its Arbitration Agreement is not a “contract[] of employment,”
and that Plaintiffs do not belong to a “class of workers engaged in foreign or interstate
commerce.” See [Doc. 25 at 5–12]. For the reasons that follow, the Court concludes that
Amazon’s arguments are unpersuasive. 	Plaintiffs have met their burden to show that
they are exempt from the FAA as transportation workers.
A. 	Contract of Employment
The exemption’s first prong looks at whether the relevant arbitration clauses are
found within “contracts of employment.” 9 U.S.C. § 1. The Supreme Court has explained
that “the term ‘contracts of employment’ refer[s] to agreements to perform work.” 	New
Prime Inc. v. Oliveira, 586 U.S. 105, 121 (2019). 	The question is thus whether “the
arbitration clause being enforced . . . is . . . contained in a contract of employment.”
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 n.2 (1991).
Amazon 	argues 	that 	the 	Arbitration 	Agreement 	is 	a 	“separate, 	standalone
agreement” that is not contained within any broader employment agreement. [Doc. 25 at
6]. 	Amazon further submits that “the obligation to arbitrate under the Agreement arises
before any employment relationship forms and regardless of whether any employment
relationship forms.” 	[Id. at 6–7]. 	Plaintiffs respond that “on their face, the arbitration
provisions are clearly part of drivers’ broader ‘contracts of employment.’” [Doc. 38 at 3].
The Court respectfully agrees with Plaintiffs that the Arbitration Agreement is
contained within a contract of employment. 	Defendants’ evidence shows that the
Arbitration Agreement was signed by Plaintiffs as the “Employee” parties during the
“online registration process” associated with their employment applications for various
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DSPs. 	See [Doc. 25-1 at ¶ 5]; see also [id. at 6–8]. 	And the DSPs have all attested to
the relationship between the Arbitration Agreement and their hiring processes as follows:
When [the DSP] wanted to hire a new employee as a Delivery Associate,
[the DSP] required that person to complete an “onboarding” process before
they 	started 	working. 	During 	onboarding, 	the 	prospective 	employee
provided certain information to [the DSP], registered with Amazon as a
[DSP] delivery driver, and reviewed and accepted an Arbitration Agreement.
[Doc. 25-2 at ¶ 4]; see also [Doc. 25-3 at ¶ 4; Doc. 25-4 at ¶ 4; Doc. 25-5 at ¶ 4; Doc. 25-
6 at ¶ 4; Doc. 25-7 at ¶ 4; Doc. 25-8 at ¶ 4]. 	Plaintiffs are correct that “Amazon cannot
unilaterally sidestep the Section 1 exemption simply by putting the arbitration provisions
in a separate, standalone document, especially where, as here, that document is signed
during employee onboarding and required as a step in the hiring process.” 	[Doc. 38 at
3]; see also Abram v. C.R. Eng., Inc., No. 2:20-cv-00764-MWF-MRW, 2020 WL 5077365,
at *4 (C.D. Cal. Apr. 15, 2020) (observing that, under position advanced by Amazon,
employers “could circumvent section one by simply presenting employees with a contract
outlining all terms and conditions of employment, followed by a separate arbitration
agreement, even if that agreement compels arbitration of employment disputes”). 	The
authority cited by Defendants involving Amazon and DSPs is distinct because, as
Plaintiffs observe, [Doc. 38 at 4–5], the relevant contractual relationship in that case was
between Amazon and the DSPs, not the DSPs and their individual employees, see Amos
v. Amazon Logistics, Inc., 74 F.4th 591, 596 (4th Cir. 2023). 	When a DSP requires an
employee to agree to arbitrate employment disputes before she starts working, see, e.g.,
[Doc. 25-2 at ¶ 15 (“Only after successfully completing all of the steps in the onboarding
process could a prospective employee become a [DSP] Delivery Associate and deliver
packages.”)], the agreement is contained in a contract of employment.
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Amazon 	faults 	Plaintiffs 	for 	failing 	to 	rebut 	its 	position 	that 	the 	Arbitration
Agreement cannot be a contract of employment where “it is binding before, and
regardless of whether, an employment relationship forms.” See [Doc. 42 at 2]. However,
Defendants do not provide any legal authority for the proposition that this feature of the
contracting process precludes the Arbitration Agreement from qualifying as a contract of
employment for purposes of 9 U.S.C. § 1. See [Doc. 25 at 6–7; Doc. 42 at 2]. The point
is particularly inconsequential here because Defendants themselves explain that Plaintiffs
all performed work as employees for DSPs in connection with the Arbitration Agreements
they signed. See [Doc. 25 at 2 (“Plaintiffs had different DSP employers.”)]; see also, e.g.,
[Doc. 25-2 at ¶ 15 (DSP declaring that “a prospective employee could not complete three
separate 	onboarding tasks 	without 	first 	reviewing, 	accepting 	and 	agreeing 	to 	the
Arbitration Agreement”)]. 	The Court concludes that the Arbitration Agreement is part of
a contract of employment for purposes of the FAA.
B. 	Class of Workers Engaged in Interstate Commerce
Next, the Parties dispute the extent to which Plaintiffs belong to a “class of workers
engaged in foreign or interstate commerce.” 	In other words, Amazon contends that
Plaintiffs are not transportation workers for purposes of the exemption’s residual clause.
See Bissonette, 601 U.S. at 253. That assessment takes two steps: first determining the
relevant class of workers and then assessing whether that class of workers is engaged in
interstate or foreign commerce. See Sw. Airlines Co. v. Saxon, 596 U.S. 450, 456 (2022).
The Supreme Court has recently explained that the class of workers to which an individual
belongs is based on what its members do for their employers, not what their employers
do generally. See id. Once the class is properly defined, “any class of workers directly
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involved in transporting goods across state or international borders falls within § 1’s
exemption.” 	Id. at 457. 	To qualify for the exemption, “transportation workers must be
actively ‘engaged in transportation’ of . . . goods across borders via the channels of
foreign or interstate commerce.” Id. at 458; see also id. (transportation workers “must at
least play a direct and necessary role in the free flow of goods across borders” (quotation
omitted)).
At Saxon’s first step, Amazon asserts that Plaintiffs “belong to a class of local
delivery drivers” because they “make strictly local deliveries, exclusively within the state
of Colorado.” [Doc. 25 at 8]. Plaintiffs do not meaningfully dispute this characterization
of the relevant class of workers. 	See [Doc. 38 at 5–8]. 	Considering the Amended
Complaint’s emphasis on Plaintiffs making local deliveries of products that have traveled
interstate, see [Doc. 24 at ¶ 39 (“Those packages traveled on airplanes or trucks across
state lines to reach Amazon facilities, where Amazon delivery drivers retrieved them and
brought them to Amazon’s Colorado customers.”)], and considering Plaintiffs’ role in
Amazon’s operations, the Court finds that Plaintiffs belong to a class of local delivery
drivers that conduct last-mile delivery of interstate shipments. 	See Saxon, 596 U.S. at
456.
Turning to Saxon’s second step, Amazon argues that local delivery drivers are too
removed from interstate commerce to qualify for the exemption. [Doc. 25 at 8–12]. Both
sides cite cases arising under similar fact patterns that predate and postdate Saxon. [Id.;
Doc. 38 at 5–8]. None is binding, although the issue is currently pending before the Tenth
Circuit. See Brock v. Flowers Food, Inc., 673 F. Supp. 3d 1180 (D. Colo. 2023), appeal
docketed, No. 23-1182 (10th Cir. May 25, 2023). This Court concludes that Plaintiffs, a
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class of local delivery workers contracted by Amazon to complete Amazon’s interstate
deliveries, are sufficiently engaged in interstate commerce to qualify as transportation
workers. 	See Saxon, 596 U.S. at 457 (“[I]t is too plain to require discussion that the
loading or unloading of an interstate shipment by the employees of a carrier is so closely
related to interstate transportation as to be practically a part of it.” (quotation omitted)).
That is because last-mile delivery of interstate Amazon shipments is “part of an integrated
interstate journey,” rather than “a separate and independent intrastate journey taking
place before or after the [shipment’s] interstate journey.” 	See Fraga v. Premium Retail
Servs., 61 F.4th 228, 238 (1st Cir. 2023). This Court therefore agrees with those courts
that have found that drivers making last-mile deliveries of interstate shipments are actively
engaged in the interstate transportation of goods. See, e.g., Miller v. Amazon.com, Inc.,
No. 21-36048, 2023 WL 5665771, at *1 (9th Cir. Sept. 1, 2023); Rittmann v. Amazon.com,
Inc., 971 F.3d 904, 915–19 (9th Cir. 2020); Waithaka v. Amazon.com, Inc., 966 F.3d 10,
17–26 (1st Cir. 2020).
This Court is respectfully unpersuaded by the Fifth Circuit’s contrary reasoning.
On similar facts, that court determined that once goods reached a local “warehouse and
were unloaded, anyone interacting with those goods was no longer engaged in interstate
commerce.” 	Lopez v. Cintas Corp., 47 F.4th 428, 433 (5th Cir. 2022). 	But as the
Honorable Charlotte N. Sweeney noted, Saxon “explicitly rejected an interpretation of § 1
under which ‘only workers who physically move goods or people across foreign or
international boundaries’ qualify for its exemption.” 	Brock, 673 F. Supp. 3d at 1187
(quoting Saxon, 596 U.S. at 461). The Supreme Court’s decision that the FAA exempts
“airline employees who physically load and unload cargo on and off planes traveling in
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interstate commerce,” Saxon, 596 U.S. at 457, supports focusing on Plaintiffs’ relationship
to the interstate shipment of goods by Amazon. 	Plaintiffs, like the airline workers in
Saxon, handled goods that crossed state lines, without themselves crossing state lines,
to facilitate the goods’ interstate transportation by their employer. That means Plaintiffs
are actively engaged in transporting goods across state borders.
The FAA does not apply to “contracts of employment of seamen, railroad
employees, or any other class of workers engaged in foreign or interstate commerce.” 9
U.S.C. § 1. Plaintiffs are transportation workers who agreed to arbitrate in the context of
their employment contracts with various DSPs, exempting them from the FAA.
III. 	Colorado Uniform Arbitration Act
With the FAA inapplicable, the next issue is whether Colorado law provides a
separate basis for compelling arbitration of some or all of Plaintiffs’ claims. 	Unlike in
certain disputes that implicate the FAA’s exemption for transportation workers, see, e.g.,
Brock, 673 F. Supp. 3d at 1189–90, Plaintiffs do not argue that their FAA exemption
forecloses compelling arbitration pursuant to state law, see [Doc. 38 at 8 (“Because the
FAA does not apply to the arbitration provisions at issue here, the Court must decide
whether . . . the arbitration provisions are enforceable as a matter of Colorado law.”)].
Indeed, the Arbitration Agreement itself provides that “[i]f, for any reason, the FAA or
federal common law is found not to apply to this Agreement (or its agreement to arbitrate),
then applicable state law shall govern,” [Doc. 25-1 at 8], and the Parties accept that
Colorado law applies, [Doc. 25 at 12; Doc. 38 at 8]; see also see Grynberg v. Total S.A.,
538 F.3d 1336, 1346 (10th Cir. 2008) (“Because the parties’ arguments assume that
Colorado law applies, we will proceed under the same assumption.”).
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Like the FAA, the CUAA provides that “[a]n agreement contained in a record to
submit to arbitration any existing or subsequent controversy arising between the parties
to the agreement is valid, enforceable, and irrevocable except on a ground that exists at
law or in equity for the revocation of a contract.” Colo. Rev. Stat. § 13-22-206(1). Unlike
the FAA, the CUAA does not exempt transportation workers. 	See Brock, 673 F. Supp.
3d at 1190. 	Defendants thus take the position that the CUAA provides an independent
basis for arbitrating all claims in the Amended Complaint. 	See [Doc. 25 at 13]. 	In
response, Plaintiffs contend (1) that claims for unpaid wages are not arbitrable under
Colorado law and (2) that, even if they are, “the arbitration provisions at issue here are
unenforceable because they require Plaintiffs to waive their right to participate in class
actions.” [Doc. 38 at 8–11].
A. 	Arbitrability
The Court first considers whether Colorado law supports compelling arbitration of
Counts I, II, III, and V.5 As to Count I, which arises under the Colorado Wage Claim Act,
Plaintiffs contend that Colorado law prohibits arbitrating any claims under that statute.
5 Within the allegations labeled “Fourth Claim for Relief,” the Amended Complaint states
that 	“Plaintiff 	Cross 	is 	in 	the 	process 	of 	administratively 	exhausting 	a 	claim 	for
discriminatory or unfair employment practices pursuant to C.R.S. § 24-34-401 et seq. on
behalf of a class of similarly situated drivers and Plaintiffs will amend to add such a claim
following the administrative exhaustion.” 	[Doc. 24 at ¶ 121]; see also [id. at ¶ 24]. 	As
Plaintiffs have not sought an amendment as of the date of this Order, the Court finds that
the Amended Complaint does not contain either an individual or collective Count IV at this
time. See Holt v. Florissant Fire Protection Dist., No. 23-cv-01798-NYW-MDB, 2023 WL
7328149, at *3 (D. Colo. Nov. 7, 2023). 	The allegations corresponding to Count IV
therefore need not be considered for purposes of the Motion to Compel because they are
not currently at issue in this litigation and any opinion with respect to their arbitrability
would be advisory. See [Doc. 38 at 9 n.2 (“The Court need not decide whether Plaintiffs’
CADA claims are arbitrable because Plaintiffs have not yet pled those claims, which are
still being exhausted.”)].
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See [Doc. 38 at 7]. 	Defendants do not contend otherwise, see [Doc. 42 at 6], and the
Court concludes that Plaintiffs are correct.
The Colorado Wage Claim Act provides that “[a]ny agreement, written or oral, by
any employee purporting to waive or to modify such employee's rights in violation of this
article shall be void.” Colo. Rev. Stat. § 8-4-121. The Colorado Supreme Court has held
that “[t]he plain meaning” of that provision “is that an agreement to arbitrate that conflicts
with the rights established by the Wage Claim Act cannot be enforced against the
employee” because it constitutes an impermissible waiver of statutory rights. Lambdin v.
District Ct. in and for the 18th Jud. Dist. of the Cnty. of Arapahoe, 903 P.2d 1126, 1130
(Colo. 1995). Accordingly, Plaintiffs’ Count I under the Colorado Wage Claim Act is not
subject to arbitration. See id.
As to Counts II and III, Plaintiffs characterize the Colorado Wage Claim Act as “the
foundation for Plaintiffs’ wage-and-hour claims.” [Doc. 38 at 8]. However, the Amended
Complaint makes clear that Counts II and III arise under the Colorado Minimum Wage
Act, either directly with respect to Count II, see [Doc. 24 at ¶¶ 93–95], or indirectly with
respect to Count III via Colorado’s civil theft statute, see [id. at ¶¶ 99–104]. 	But the
Colorado Supreme Court specifically confined its ruling in Lambdin to the Colorado Wage
Claim Act and its nonwaiver provision. See Lambdin, 903 P.2d at 1130 n.10 (“Our holding
in this case is limited to the validity of an arbitration clause to the extent it restricts an
employee’s right to bring a civil suit to recover wages pursuant to the Colorado Wage
Claim Act, §§ 8-4-101 to -126.”). 	And Defendants are correct that “Plaintiffs do not
discuss these statutes”—meaning the statutes underlying Counts II and III—in their
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briefing. [Doc. 42 at 7]; see also [Doc. 38 at 8–9]. Plaintiffs have not directed the Court
to any legal authority that would apply or support extending Lambdin to Counts II and III.
As to Count V, Plaintiffs concede that “[t]he Colorado Supreme Court has not had
occasion to decide whether . . . claims under the Denver Wage Theft Ordinance are
similarly exempt from arbitration.” [Doc. 38 at 8–9]. Highlighting a provision of the Denver
Municipal Code which grants the right to bring a “civil action in a court of competent
jurisdiction,” see Den. Mun. Code § 58-6(a), Plaintiffs contend that the Colorado courts
“have held that language conferring the right to file ‘civil actions in Colorado courts’
prohibits enforcement of contracts that waive that right,” [Doc. 38 at 9 (quoting Morris v.
Towers Fin. Corp., 916 P.2d 678, 679 (Colo. App. 1996))]. However, tracking Lambdin,
Plaintiffs’ authority focuses on the Colorado Wage Claim Act’s nonwaiver provision. See
Morris, 916 P.2d at 679. 	And as discussed above, this Court respectfully agrees with
Defendants that Lambdin does not extend past Colo. Rev. Stat. §§ 8-4-101 through -126,
as the opinion itself cautioned. See Lambdin, 903 P.2d at 1130 n.10. Plaintiffs have not
directed the Court to any comparable provision of law that covers Count V.
For the reasons discussed above, it appears that Count I is not subject to
arbitration under the CUAA but that Counts II, III, and V are.
B. 	Enforceability
In the alternative, Plaintiffs contend that the underlying agreements to arbitrate are
unenforceable because they contain impermissible class action waivers. See [Doc. 38 at
9–11]. 	Plaintiffs recognize that “class action waivers within arbitration provisions are
enforceable as a matter of federal law under the FAA,” [id. at 9 (citing AT&T Mobility LLC
v. Concepcion, 563 US 333, 352 (2011))], but because the FAA does not apply, they
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assert that the Colorado Supreme Court would decide the issue differently, see [id.].
Collecting authority from other jurisdictions, Plaintiffs argue that it is “likely that Colorado
courts would conclude that class action waivers are unenforceable and against public
policy,” and they suggest that if this Court has any “doubts,” then certifying the question
to the Colorado Supreme Court is warranted. See [id. at 10–11]. Amazon responds that
there are no grounds to establish a wholesale “prohibition on enforcing arbitration
agreements with class action waivers.” 	[Doc. 42 at 8]; see also [id. (“Here, the strong
public policy favoring arbitration as a method of dispute resolution and the freedom of
contract override any policy favoring classwide resolution of Plaintiffs’ claims.”)].
The Court respectfully concludes that the briefing on this issue is misdirected.
Defendants have not sought to enforce the waiver in the Arbitration Agreement with
respect to any of Plaintiffs’ class claims. See generally [Doc. 25]. Instead, Plaintiffs have
argued that the arbitration agreements are unenforceable on an individual level because
they purport to waive all litigation on a collective level. See [Doc. 38 at 8 (“[T]he arbitration
provisions at issue here are unenforceable because they require Plaintiffs to waive their
right to participate in class actions.”)]. 	But whatever this Court might determine with
respect to the enforceability of the class action waivers, Plaintiffs have not explained how
that finding necessarily invalidates the Arbitration Agreement on an individual level. See
[Doc. 38 at 9–11]. 	Notably, the Arbitration Agreement contains a robust severability
provision which Plaintiffs do not address. 	See [Doc. 25-1 at 8 (“If any provision of this
Agreement to arbitrate is adjudged to be void or otherwise unenforceable, in whole or in
part, the void or unenforceable provision shall be severed and such adjudication shall not
affect the validity of the remainder of this Agreement to arbitrate.”)]. Even if the provision
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waiving class action proceedings is not enforceable, Plaintiffs have not met their burden
to show that the Arbitration Agreement is invalid as to their individual claims for purposes
of Defendants’ Motion to Compel.
IV. 	Class Claims
Three of Plaintiffs’ four claims6 are subject to arbitration to the extent that they are
brought individually. 	Defendants argue that, because Plaintiffs must arbitrate certain of
their individual claims, the class claims should be dismissed. 	See [Doc. 25 at 15–16].
However, Defendants’ sole authority is a case in which the Tenth Circuit concluded that
collective claims could not proceed where the litigants lacked standing for their individual
claims. 	See Thomas v. Met. Life Ins. Co., 631 F.3d 1153, 1159 (10th Cir. 2011) (“Prior
to class certification, the named plaintiffs’ failure to maintain a live case or controversy is
fatal to the case as a whole.”). Because this authority does not concern a litigant’s ability
to bring a class claim while an individual claim is subject to arbitration, the Court
concludes that Defendants have not met their burden as movants to show that dismissal
of the class claims is warranted simply because related individual claims must be
arbitrated.
Alternatively, Defendants argue that the class claims should be “stayed pending
arbitration.” [Doc. 25 at 16]. Defendants have neither sought to compel arbitration of the
class claims nor to enforce any of the class action waiver provisions in the Arbitration
Agreement, as discussed above. Plaintiffs, for their part, do not appear to take a position
on what should happen to their class claims if any of their individual claims are subject to
6 No Count IV exists at this time. Supra n.3.
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arbitration. See generally [Doc. 38]. Plaintiffs thus do not explicitly oppose a stay pending
arbitration.
Considering the parallel relationship between the individual and class claims in the
Amended Complaint, as well as the scope of the Parties’ positions set out in the briefing
on the Motion to Compel, the Court concludes in its discretion that the class claims shall
be stayed. See Ingold v. AIMCO/Bluffs, L.L.C. Apts., 159 P.3d 116, 125–26 (Colo. 2007).
Litigation with respect to Count I shall also be stayed pending arbitration of Plaintiffs’
factually related individual wage claims, including Count II. See id.; see also [Doc. 42 at
7 (Amazon arguing that “[b]ecause the overtime and minimum wage claims in Counts 2
and 3 (and Counts 4 and 5) are subject to arbitration, the CWCA claim in Count 1 should
be stayed pending arbitration”)]. 	However, for purposes of efficiency, the Court will
administratively close, rather than stay, this litigation pending the arbitration.
This District’s Local Rules provide that “[a] district judge . . . may order the clerk to
close 	a 	civil 	action 	administratively 	subject 	to 	reopening 	for 	good 	cause.”
D.C.COLO.LCivR 41.2. 	Administrative closure is construed as “the practical equivalent
of a stay,” Quinn v. CGR, 828 F.2d 1463, 1465 n.2 (10th Cir. 1987), and is a way for the
Court to manage its docket by “shelv[ing] pending, but dormant, cases[]” without a final
adjudication, Lehman v. Revolution Portfolio LLC, 166 F.3d 389, 392 (1st Cir. 1999).
Demonstrating good cause to reopen an administratively closed matter is not onerous;
rather, “good cause to reopen a case exists where the parties wish to litigate the
remaining issues that have become ripe for review.” 	Patterson v. Santini, 631 F. App’x
531, 534 (10th Cir. 2015) (quotations omitted).
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CONCLUSION
For the foregoing reasons, it is ORDERED that:
(1) 	Defendants Amazon.com, Inc. and Amazon Logistics, Inc.’s Motion to
Compel Arbitration and Dismiss or Stay Claims Pending Arbitration [Doc.
25] is GRANTED in part and DENIED in part; and
(2) 	This case is ADMINISTRATIVELY CLOSED pending arbitration of Counts
II, III, and V in Plaintiffs’ individual capacities and may be reopened upon a
motion of any Party for good cause shown.
DATED: September 30, 2024 	BY THE COURT:
_______________________
Nina Y. Wang
United States District Judge
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