Appellant Seeks to Block Dismissal of 9th Circuit Appeal vs. Amazon for Failure to Prosecute
Defendant-appellees Amazon and its Audible subsidiary seek the "automatic dismissal," under Federal Rule of Appellate Procedure 31(c) and 9th Circuit Rule 31-2.3, of plaintiff-appellant Tracy McCarthy’s appeal for failure to prosecute, said their motion Monday (docket 23-35605) in the 9th…
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U.S. Circuit Court of Appeals. McCarthy’s opening brief in her appeal was due Nov. 14 under a Sept. 19 time schedule order, said the motion. The docket shows that McCarthy didn’t move for any extension of the time to file her opening brief, nor did she file the brief itself by the Nov. 14 deadline, it said: “This appeal is therefore subject to automatic dismissal and should be closed.” Monday's Amazon/Audible motion to dismiss apparently sparked McCarthy Tuesday to hastily file a "steamlined request" for extension of time to file her opening brief by Dec. 14, according to a text-only entry in the docket. McCarthy followed that up later Tuesday with a formal opposition to the motion to dismiss, saying she had intended to move for an automatic extension of the filing date for her opening brief to Dec. 14, "but inadvertently failed to do so." McCarthy is appealing the district court’s dismissal of her first amended complaint in which she alleged that Amazon engaged in deceptive business practices when it offered her credits as a benefit of being a Prime member. When she redeemed those credits for an audio version of a book she wanted to buy, she was unknowingly enrolled in an Audible monthly subscription service and charged a recurring fee without any clear and conspicuous notice of that enrollment. Her 9th Circuit appeal asserts that the district court erred when it dismissed her claims as time-barred and when it held that she failed to plausibly plead her claims against Amazon and Audible for unjust enrichment.