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)

Download PDF
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?