Amzn

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 28 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRACY MCCARTHY, individually and on No. 23-35605 behalf of all others similarly situated, D.C. No. 2:23-cv-01019-BJR Plaintiff-Appellant,

v. MEMORANDUM*

AMAZON.COM, INC.; AUDIBLE INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, District Judge, Presiding

Submitted October 24, 2024** San Francisco, California

Before: OWENS, SUNG, and SANCHEZ, Circuit Judges.

Tracy McCarthy appeals the district court’s order granting Amazon.com, Inc.

(“Amazon”) and Audible, Inc.’s (“Audible”) motion to dismiss. We apply the law

of the State of New York in this diversity action. See Clark v. Eddie Bauer, LLC,

30 F.4th 1151, 1154 (9th Cir. 2022). We review de novo the dismissal of a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision…