Microsoft Corporation v. Academic Software HQ Inc. et al
Filing
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ORDER granting 14 Motion for Leave tp Amend Complaint. Signed by Judge Barry Ted Moskowitz on July 3, 2017. (dsn)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MICROSOFT CORPORATION, a
Washington corporation,
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Plaintiff,
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Case No.: 16cv1753-BTM-BLM
ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND
v.
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ACADEMIC SOFTWARE HQ INC.,
a Nevada corporation,
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[ECF NO. 14]
Defendant.
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Plaintiff Microsoft Corporation, a Washington corporation (“Microsoft”), has
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filed a motion for leave to amend its complaint. (ECF No. 14.) For the reasons
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discussed below, the motion will be granted.
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I.
BACKGROUND
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On July 7, 2016, Microsoft filed a complaint against defendant Academic
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Software HQ Inc., a Nevada corporation (“Academic Software HQ”), stating claims
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for copyright and trademark infringement based on Academic Software HQ’s
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allegedly infringing advertisement and sale of Microsoft Software on its internet
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website, academicsoftwarehq.com. Academic Software HQ failed to respond to
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the complaint, and its default was entered on August 15, 2016. Microsoft then filed
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a motion for judgment by default. The Court found Microsoft had not demonstrated
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sufficient contacts between Academic Software HQ and California to support the
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Court’s exercise of personal jurisdiction over Academic Software HQ, denied the
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16cv1753-BTM-BLM
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motion, and issued an order to show cause (“OSC”) why the action should not be
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dismissed for lack of personal jurisdiction. (ECF Nos. 9, 12.)
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Microsoft responded to the OSC with evidence that a shipment of disks
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containing infringing software was distributed by Academic Software HQ from an
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address in San Diego, and that Shawn Green, Academic Software HQ’s sole
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corporate officer, operated businesses from the same San Diego address. The
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Court found this evidence sufficient to make a prima facie showing that Academic
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Software HQ is subject to general personal jurisdiction in this forum and
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discharged the OSC. (ECF No. 16.)
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Microsoft now moves for leave to amend the complaint to add Shawn Green
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as a defendant, and to allege jurisdictional facts supporting the Court’s exercise of
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personal jurisdiction over Green and Academic Software HQ. Microsoft contends
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it learned about Green’s apparent involvement in sending infringing materials on
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behalf of Academic Software HQ when it discovered, in connection with gathering
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evidence for its response to the OSC, that Green was personally operating other
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businesses out of the same San Diego address. It seeks to add him as a defendant
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on grounds he is vicariously, contributorily, or directly liable for the same copyright
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and trademark violations currently asserted against Academic Software HQ. The
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jurisdictional facts it seeks to add to the complaint conform to the evidence it
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submitted in response to the OSC.
Microsoft’s motion was served on Academic Software HQ and is unopposed.
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II.
DISCUSSION
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Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend should
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be freely given “when justice so requires,” Fed. R. Civ. P. 15(a)(2), a policy the
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Ninth Circuit applies with “extreme liberality.” Owens v. Kaiser Found. Health Plan,
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244 F.3d 708, 712 (9th Cir. 2001). “Courts may decline to grant leave to amend
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only if there is strong evidence of ‘undue delay, bad faith or dilatory motive on the
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part of the movant, repeated failure to cure deficiencies by amendments previously
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allowed, undue prejudice to the opposing party by virtue of allowance of the
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amendment, [or] futility of amendment, etc.’” Sonoma County Ass’n of Retired
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Employees v. Sonoma County, 708 F.3d 1109, 1117 (9th Cir. 2013) (quoting
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Foman v. Davis, 371 U.S. 178, 182 (1962)).
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Rule 20(a)(2) additionally applies where the proposed amendment adds a
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codefendant. Wright, Miller, Kane, 7 Fed. Practice & Proc.: Civil 3d § 1652 (3d ed.
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2001).
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defendants if … (A) any right to relief is asserted against them jointly, severally, or
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in the alternative with respect to or arising out of the same transaction, occurrence,
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or series of transactions or occurrences; and (B) any question of law or fact
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common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Rule
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20 “is to be construed liberally in order to promote trial convenience and to expedite
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the final determination of disputes.”
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Regional Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977); see United Mine
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Workers of America v. Gibbs, 383 U.S. 715, 724 (1966) (“Under the rules, the
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impulse is toward entertaining the broadest possible scope of action consistent
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with fairness to the parties; joinder of claims, parties and remedies is strongly
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encouraged.”).
Under Rule 20(a)(2), “[p]ersons … may be joined in one action as
League to Save Lake Tahoe v. Tahoe
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The Court finds Microsoft’s motion for leave to amend satisfies the foregoing
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requirements. First, none of the factors that require denial of leave to amend under
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Rule 15(a) are present. The proposed amendment to name Shawn Green as a
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defendant is not futile, because Microsoft alleges he is potentially directly liable
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based on his alleged direct involvement in distributing infringing materials, or
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alternatively that he exercised control over Academic Software HQ and is
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contributorily or vicariously liable for Academic Software HQ’s copyright and
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trademark infringement. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259,
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262-65 (9th Cir. 1996) (holding plaintiff could pursue claims for copyright and
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trademark infringement based on theories of vicarious or contributory liability). The
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amendments to add jurisdictional allegations are likewise non-futile. Based on
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Microsoft’s contention it discovered the facts on which its proposed amendments
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are based while gathering evidence in response to the Court’s OSC, there was no
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undue delay in bringing this motion, and in any event, undue delay is not sufficient
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grounds for denying leave to amend. Morongo Band of Mission Indians v. Rose,
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893 F.2d 1074, 1079 (9th Cir. 1990). There is no indication of bad faith, dilatory
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motive, or prejudice to Academic Software HQ, nor has there been a “repeated
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failure to cure deficiencies,” given that this is the first time Microsoft has sought
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leave to amend.
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Second, the addition of Shawn Green as a codefendant satisfies the
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permissive joinder requirements of Rule 20(a)(2). Microsoft’s proposed amended
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complaint asserts claims against Green and Academic Software HQ jointly, and
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the claims arise out of the same transactions or occurrences and present questions
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of law and fact common to both defendants. See Fed. R. Civ. P. 20(a)(2)(A), (B).
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Accordingly, the Court finds that Microsoft’s motion meets the requirements
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of Rules 15(a) and 20(a)(2) and will grant leave to amend.
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III.
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CONCLUSION AND ORDER
For the reasons discussed above, Microsoft’s motion for leave to amend is
GRANTED.
IT IS SO ORDERED:
Dated: July 3, 2017
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