Mozilla Corporation v. IO Phoenix One LLC
Filing
1
COMPLAINT. Filing fee received: $ 400.00, receipt number 0970-12624153 filed by Mozilla Corporation. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Civil Cover Sheet) (submitted by Michael Farrell)(KMG)
1
Crystal M Gaudette,Pro Hoc Vice Application Pending
.
Asha R. Subas,Pro Hoc Vice Application Pending
2 KENNEDY, ARCHER & GIFFEN
24591 Silver Cloud Court, Suite 200
3 Monterey, CA 93940
Telephone: (831)373-7500
4 Facsimile: (831)373-7555
cgaudette@kag1aw
.net / asubas@kaglaw
.net
5
6
7
8
9
Michael J. Farrell (State Bar No. 015056)
STINSON LEONARD STREET LLP
1850 N Central Avenue, Suite 2100
.
Phoenix, AZ 85004
Telephone : (602)212-8558
Facs1mile: (602)586-5219
Attomeys for Plaintiff
MOZILLA CORPORATION
10
11
UNITED STATES DISTRICT COURT
12
DISTRICT OF ARIZONA
13 Mozilla Corporation,
COMPLAINT
Plaintiff,
14
15
Case No :
V.
16
IO Phoenix One, LLC,
17
Defendant.
18
19
20
21
22
23
24
25
26
27
28
COMPLAINT
1
MOZILLA CORP. V. IO PHOENIX ONE, LLC
1
2
Plaintiff Mozilla Corporation ("Mozilla" or "Plaintiff") hereby submits this Complaint for
Declaratory Judgment against IO Phoenix One, LLC ("IO" or "Defendant"), and alleges as follo s:
NATURE OF THE ACTION
3
4
1.
Mozilla is a technology company dedicated to the use, de
velopment, and support of
5
free, open-source software products, such as the popular Mozilla Firefox web browser
6
aims to keep the Internet alive and accessible for all
7
data center services from Defendant IO pursuant to a Colocation Master Services Agreement ithe
8
"Agreement") between the parties
9
Exhibit A.
10
2.
. Mo d rlla
. Since December 2009, Mozilla has proclned
. A tnue and correct copy of the Agreement is attached hereto as
This action involves a dispute between Mozilla and IO with respect to (1) the term of
ll
the Agreement - in particular, whether a so-called amendment to the Agreement that purport" to
12
bind Mozilla to a multi-year extension of the Agreement's term, but which was not executed b an
13
authorized representative of Mozilla, is valid and enforceable, and (2) the validity and
14
enforceability of the limitation of liability provision in the Agreement, which - irrespective of the
15
Agreement's term - on its face limits each party's aggregate liability to the other at five-hundred
16
thousand dollars ($500,000)
17
3.
(see Exhibit A, § 5 .4).
By this action, Mozilla seeks entry of a judgment declaring (1) that the Agreement
18
terminates as of January 31, 2016, and (2) that, in any event, the Agreement limits Mozilla's
19
liability to IO arising from or relating to the Agreement to an aggregate of five-hundred thousand
20
dollars ($500,000) .
PARTIES
21
22
4.
Plaintiff Mozilla is a California corporation with its principal place of business in
23
Mountain View, California . Mozilla's mission is to promote openness, innovation, and opportunity
24
on the Web . The Mozilla community uses, develops, spreads and supports Mozilla's free software
25
and open-source products, such as the popular Mozilla Firefox web browser
26
27
28
5.
Defendant IO is a Delaware limited liability company that with its principal place of
business in Phoenix, Arizona
6.
COMPLAINT
.
. IO provides data center services to companies like Mozilla
Together, Mozilla and Phoenix are referred to herein as the "Parties
2
.
."
MOZILLA CORP. V. IO PHOENIX ONE, LLC
JURISDICTION & VENUE
1
2
7.
This Com has jurisdiction pursuant to 28 U
.S.C. § 1332, based on the complete
3
diversity of citizenship among and between Plaintiff and Defendant and because the amount in
4
controversy exceeds $75,000, exclusive of interest and costs.
5
8.
Personal jurisdiction and venue are proper in this Court pursuant to 28 U.S. 8 §
<.
6
1391(b) because, inter alia, a substantial part of the events giving rise to the claims herein occurred
7
in this judicial district, and Defendant resides in this judicial district, with its headquarters located
8 in Phoenix, Arizona
.
9
9.
This Court is the appropriate venue for the additional reason that the Parrties
10 expressly agreed in Section 12.1 of the Agreement as follows:
11
"The parties hereby irrevocably consent to the personal and exclusive jurisdiction
12
and venue of the federal courts of Maricopa County, Arizona
."
13
10.
This action seeks relief under the Federal Declaratory Judgment Act, 28
14 U.S.C. §§ 2201-02
.
FACTUAL ALLEGATIONS
15
16
11.
On or about December 7, 2009, Mozilla and IO entered into the Agreement, pursuant
17
to which IO would provide data center services to Mozilla for a term of 60 months . . Le ., ntil
-
18
January 31 , 2015 See Exhibit A, and Attachment A thereto.
.
19
12.
The Agreement contains a clear limitation of liability provision which limits each
20 party's aggregate liability to the other to five-hundred thousand dollars ($500,000), as follows:
21
22
5.4
Maximum Liability. IN NO EVENT WILL EITHER PARTY'S AGGREGATE
LIABILITY TO THE OTHER PARTY ARISING FROM OR RELATED TO THIS
AGREEMENT WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR
OTHERWISE, EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000) .
23
24
25
(the "Limitation of Liability Provision") (see Exhibit A, § 5 .4).
13.
By its terms, the Agreement auto-renewed for additional terms of one (1) year each,
26
unless either party provided the other party with advance written notice that it would not renew the
27
Agreement (seeExhibit A, § 8.1).
28
COMPLAINT
3
MOZILLA CORP. V. IO PHOENIX ONE, LLC
1
2
3
14.
Between December 2009 and December 2015, IO provided data center services to
Mozilla. During this period, the Parties purported to amend the Agreement numerous times
15.
.
Amendments 1-11 and 13 to the Agreement involved incremental modifications to
4
the Parties' rights and obligations under the Agreement, modifying items such as the specific
5
amount/type storage space being provided by IO
6
amendments are attached hereto as
7
16.
.
True and correct copies of these purported
Exhibit B.
Amendment 12, however, was different
.
Rather than merely amending the
8
Agreement, Amendment 12 purported to re-define the initial 60-month term in the Agreement to a
9
period 108 months, thereby purporting to extend the Agreement's term by four (4) full years - to
10
January 31, 2019 . In other words, Amendment 12
ll
the entire Agreement, nearly doubling its term
12
Amendment 12 to the Agreement is attached hereto as
13
17.
.-. by its terms - operated as a re-negotiation of
.
A true and correct copy of the pu1pcrted
Exhibit C .
lmportantly, Amendment 12 was not executed by an authorized representative of
14
Mozilla with either authority or apparent authority to bind Mozilla thereto
15
unenforceable and void .
16
18.
. The Amendment is
Without a valid extension of the Agreement's term in Amendment 12, the initial
17
term of the Agreement ended on January 31, 2015, and was automatically renewed for a one-year
18
renewal tenn ending January 31, 2016
19
19.
. See Exhibit A, § 8 .1.
On December 23, 2015, Mozilla provided IO with the requisite written notice of
20
termination of the Agreement, pursuant to Section 8
21
and correct copy of the Notice of Termination is attached hereto as
22
Termination provided that, by the terms of the Agreement, the Agreement terminates as of January
23
31, 2016 .
24
20.
.1 therein (the "Notice of Termination") . A true
Exhibit D. The Notice of
IO responded by letter dated January 14, 2016, contending that Mozilla's Notice of
25
Termination is invalid, that Amendment 12 is enforceable, and that the Agreement does not expire
26
until January 31, 2019 . IO further contended,
27
Provision, that Mozilla has
without regard for the Limitation of Liability
committed an anticipatory breach of the Agreement, triggering the
28
COMPLAINT
4
MOZILLA CORP. v. IO PHOENIX ONE, LLC
1
obligation of Mozilla to immediately pay IO some $9,l99,l68.99 in license fees, plus per diem
2
interest. A tme and correct copy of that January 14 letter is attached hereto asExhibit D.
3
21.
On January 20, 2016, Mozilla responded to lO's January 14 letter, noting that, while
4 Mozilla disputes that it has committed a breach (or anticipatory breach) of the Agreement, in any
5
event, the Limitation of Liability Provision in the Agreement unequivocally limits MoziQ' la's
.
6
aggregate liability to IO to tive-hundred thousand dollars ($500,000).
7
22.
IO does not agree that the Limitation of Liability Provision effectively -'aps
8 Mozilla's liability to five-hundred thousand dollars ($500,000).
9
23.
An actual controversy therefore exists between Mozilla and IO with respect to .ach
10 party's rights and obligations pursuant to the Agreement. By this action, Mozilla seeks a judgment
ll
declaring (1) that the Agreement, in fact, tenninates as of January 31, 2016 pursuant to Mozi:
.la's
12 valid Notice of Termination; and (2) that, in any event, the Agreement limits Mozilla's liability to
13 IO arising from or relating to the Agreement to an aggregate of five-hundred thousand dofLlars
14 ($500,000)
.
15
FIRST CAUSE OF ACTION
16
(Declaratory Judgment that the Agreement terminates as of January 31, 2016)
17
18
19
24.
Plaintiff repeats and realleges each and every allegation set forth in Paragraphs 1
through 23, inclusive, and incorporates them as though repeated verbatim herein
.
25.
The Agreement provides that the Agreement's term is for a period of 60 months -
20 i.e., until January 31, 2015, and that - unless terminated - the Agreement automatically renews for
21
22
additional terms of one (1) year. See Exhibit A, Attachment A and § 8.1.
26.
Amendment 12 to the Agreement, which purports to extend that Agreement's term
23
to January 31, 2019, was not executed by a representative of Mozilla with authority or apparent
24
authority to bind the company to the amendment, and is therefore void and unenforceable
.
25
26
27
27.
Mozilla provided IO with proper written Notice of Termination of the Agreement,
effective January 3 l, 2016.
28.
Accordingly, pursuant to 28 U.S.C. §§ 2201-02, the Court should enter a declaratory
28 judgment that the Agreement is terminated as of January 31, 2016
.
COMPLAINT
5
MOZILLA CORP. V IO PHOENIX ONE, LLC
.
1
2
29.
Pursuant to Section 12.1 of the Agreement, the prevailing party is entitled to
reimbursement of its reasonable attomeys' fees and costs incurred in this action Accordingly,
.
3 Mozilla should be awarded recovery of its reasonable attomeys' fees and costs pursuant tc the
4
5
Agreement.
30.
This action arises out of contract. Mozilla has been required to retain the services of
6
attorney in order to prosecute this action and is thus entitled to recovery of its reasonable attorneys'
7
fees pursuant to A.R.S. § 12-341.01.
8
3 l.
WHEREFORE, Mozilla prays for relief as set forth below
.
SECOND CAUSE OF ACTION
9
10
(Declaratory Judgment that the Limitation of Liability Provision in the Agreement Limits
ll
Mozilla's Liability to IO to an Aggregate of Five-Hundred Thousand Dollars ($500,000])
12
13
14
15
16
17
l8
19
32.
Plaintiff repeats and realleges each and every allegation set forth in Paragraphs l
through 31, inclusive, and incorporates them as though repeated verbatim herein
.
33.
The Agreement limits each party's aggregate liability to the other at five-hundred
thousand dollars ($500,000), as follows.
5.4
Maximum Liability. IN NO EVENT WILL EITHER PARTY'S AGGREGATE
LIABILITY TO THE OTHER PARTY ARISING FROM OR RELATED TO THIS
AGREEMENT WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR
OTHERWISE, EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000) .
34.
Accordingly, pursuant to 28 U
.S.C. §§ 2201-02, the Court should enter a declaratory
20 judgment that the Agreement limits Mozilla's liability to IO arising from or relating to the
21
22
Agreement at an aggregate of tive-hundred thousand dollars ($500,000)
.
35.
Pursuant to Section 12.1 of the Agreement, the prevailing party is entitled to
23 reimbursement of its reasonable attomeys' fees and costs incurred in this action Accordingly,
.
24 Mozilla should be awarded recovery of its reasonable attorneys' fees and costs pursuant to the
25
26
Agreement.
36.
This action arises out of contract. Mozilla has been required to retain the services of
27
attorney in order to prosecute this action and is thus entitled to recovery of its reasonable attorneys'
28
fees pursuant to A
.R.S. § 12-341.01.
COMPLAINT
6
MOZILLA CORP. V IO PHOENIX ONE, LL "
.
1
37.
WHEREFORE, Mozilla prays for relief as set forth below
2
3
4
.
PRAYER FQR RELIEF
WHEREFORE, Plaintiff respectfully requests entry of judgment in their favor and against
Defendant as follows :
5
1.
Declaring that the Agreement is terminated as of January 31, 2016;
6
2.
Declaring that the Agreement limits Mozilla's liability to IO to an aggregate of five-
7
8
9
10
hundred thousand dollars ($500,000);
3.
Awarding Plaintiff recovery of its reasonable attomeys' fees and costs incurred in
this action, pursuant to Section 12
4.
.1 of the Agreement, and to A
.R.S. § 12-341 .01, and
Granting such other and further relief as this Court may deem just and appropriate
.
11
12
Dated: February 11, 2016
STINSON LEONARD sT198ET LLP
13
W
By:
14
Mic.
imeu
15
Attomeys for Claimant
Mozilla Corporation
16
17
18
19
20
21
22
23
24
25
26
27
28
nonmnonumnn
COMPLAINT
7
MOZILLA CORP. V IO PHOENIX ONE, LLC
.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?