Case 2:10-cv-00215-WY Document 11-2 Filed 03/16/10 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALEX SCHWARTZ, on behalf of : Case No. 10-CV-215

himself, and other U.S. residents similarly :
situated, : The Honorable William H. Yohn
:
Plaintiffs, :
v. :
:
MICROSOFT CORPORATION, :
:
Defendant. :

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT MICROSOFT CORPORATION’S MOTION TO DISMISS
PLAINTIFF’S SECOND AMENDED COMPLAINT UNDER FED. R. CIV. P. 12(b)(6)

I. INTRODUCTION

Plaintiff’s Second Amended Complaint suffers from the same defect as the original

Complaint and the Amended Complaint: he sued Microsoft in the wrong forum. Plaintiff—like

all members of the putative class he seeks to represent—entered into a contract with Microsoft

under which he agreed to litigate all disputes relating to his contract and his use of Xbox LIVE

and related services in King County, Washington. Try as he might, Plaintiff cannot avoid his

binding contract.

The United States Supreme Court has held that forum selection clauses must be enforced

unless “trial in the contractual forum will be so gravely difficult and inconvenient that … the

party seeking the non-contractual forum … will for all practical purposes be deprived of his day

in court.” M/S Bremen v. Zapata Offshore Co., 407 U.S. 1, 18 (1972). In a transparent but futile

attempt to avoid the forum selection clause, attorney Samuel Lassoff, the original plaintiff here,

dropped Frank Muniz (a California resident), who had been substituted for Mr. Lassoff in the

Amended Complaint, and replaced him with Alex Schwartz (a Pennsylvania resident) to serve as
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the third named plaintiff. Presumably, Plaintiff will now argue that it will be “gravely difficult”

if he, a Pennsylvania resident, must litigate this dispute in King County, Washington. But that

argument falls far short of what Mr. Schwartz must prove to evade his promise to sue in

Washington. Courts in this Circuit and elsewhere have consistently considered and rejected the

argument that distance to the courthouse warrants disregarding a forum selection clause.

Because Plaintiff sued in the wrong forum, the Court should dismiss this action under

Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1406. In the alternative, the Court should transfer this

case under 28 U.S.C. §1404(a) to the most convenient forum, the Western District of

Washington.

II. PROCEDURAL AND FACTUAL BACKGROUND

A. Brief Procedural History

On January 19, 2010, Samuel Lassoff, Plaintiff’s counsel, filed a lawsuit against

Microsoft on behalf of himself and a proposed class alleging that he was “the victim of Microsoft

Point fraud” in connection with his Xbox LIVE account [Dkt. No. 1 ¶ 12]. Because courts have

uniformly held that an individual cannot serve as both a named plaintiff and the attorney for the

proposed class,1 Mr. Lassoff filed an Amended Complaint on February 2, 2010 [Dkt. No. 2],

replacing himself as the named plaintiff with Frank Muniz, a California resident.

On February 18, 2010, Microsoft moved to dismiss Plaintiff’s Amended Complaint

because Mr. Muniz, like all members of the putative class, entered into a contract with Microsoft

1
Kramer v. Scientific Control Corp., 534 F.2d 1085, 1090 (3d Cir. 1976) (an “attorney-plaintiff
class representative may not also serve as counsel for the class”); Turoff v. May Co., 531 F.2d
1357, 1360 (6th Cir. 1976) (“If the interests of a class are to be fairly and adequately protected, if
the courts and the public are to be free of manufactured litigation, and if proceedings are to be
without cloud, the roles of class representative and of class attorney cannot be played by the
same person”).

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under which he agreed to litigate all disputes relating to his Xbox LIVE account in King County,

Washington [Dkt. No. 3 at 1]. In support of its motion, Microsoft noted that if Mr. Muniz, a

resident of Los Angeles, was willing to proceed in this district, he could certainly proceed in

King County, Washington. Id.

In response, on March 1, 2010, Mr. Lassoff filed a Second Amended Complaint. The

primary difference between the Amended Complaint and the Second Amended Complaint is that

Mr. Lassoff substituted Alex Schwartz, a Pennsylvania resident, for Mr. Muniz.

B. Plaintiff’s Contract with Microsoft

Plaintiff Schwartz alleges that he entered into a contract with Microsoft under which it

agreed to “provide an online, renewable, stored-value system called Microsoft Points that lets

Plaintiffs buy digital goods and services from X-box Live Marketplace, Windows LIVE, Xbox

360, and Zune and only charge Plaintiffs for the complete, whole and or actual digital goods and

services purchased by Plaintiffs.” Sec. Am. Compl. ¶ 19.2 For example, the Microsoft Points

program allows persons to buy video games and play them online using their Xbox 360 game

consoles and Xbox LIVE accounts.

Paragraph 15 of Plaintiff’s contract governs the Microsoft Points feature of his Xbox

LIVE service. It provides, in relevant part, that “Microsoft Points is a service by which you can

acquire Points and redeem those Points for certain online services and digital products. … You

2
Mr. Lassoff did not attach a copy of the contract to Plaintiff’s Second Amended Complaint.
Therefore, Microsoft has attached the contract as Exhibit “1” to the Declaration of Stephen
Toulouse (“Toulouse Decl.”). The Toulouse Declaration is attached hereto as Exhibit “A.” “[A]
‘document integral to or explicitly relied upon in the complaint’ may be considered ‘without
converting the motion [to dismiss] into one for summary judgment.’” In re Burlington Coat
Factory Secs. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citing Shaw v. Digital Equip. Corp., 82
F.3d 1194, 1224 (1st Cir. 1996) (original emphasis)).

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can obtain selected services or digital products that [Microsoft] elect[s] to offer in exchange for

Points. … Points have no monetary value. You may not obtain any cash or money in exchange

for Points, regardless of how you acquired those Points.” Toulouse Decl. ¶ 5 & Ex. 1 attached

thereto.

Plaintiff’s contract with Microsoft also provides that disputes relating to the contract and

the Xbox LIVE service must be adjudicated in King County, Washington. Paragraph 27 of the

contract provides, in relevant part, that “you consent to the exclusive jurisdiction and venue of

state or federal courts in King County, Washington, USA for all disputes relating to this contract

or the Service.”3 Toulouse Decl. ¶ 6 & Ex. 1 attached thereto (emphasis added). In his Second

Amended Complaint, Plaintiff alleges that Microsoft breached its contract with him and that he

was “exposed to point fraud.” Sec. Am. Compl. ¶¶ 3, 18-20. He purports to sue on his own

behalf and as representative of a class of “U.S. customers whose Microsoft Point system, X-box

Live, Xbox Live Marketplace, Windows LIVE, Xbox 360, and Zune accounts were fraudulently

and or negligently handled by Defendant.” Sec. Am. Compl. ¶ 6.

III. ARGUMENT

A. The Court Should Dismiss Plaintiff’s Second Amended Complaint Because

He Sued Microsoft In The Wrong Forum.

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is an appropriate procedural

mechanism for enforcing a forum selection clause. Solovaara v. Jackson Nat’l Life Ins. Co., 246

F.3d 289, 298-99 (3d Cir. 2001) (“[A] 12(b)(6) dismissal is a permissible means of enforcing a

forum selection clause.”). Because forum selection clauses are presumptively valid, the party

3
“Service” is defined in Paragraph 1 of Plaintiff’s contract as relating to use of the Xbox LIVE
and Games for Windows LIVE interactive services, including any related services.

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objecting to enforcement of the clause bears “the ‘heavy burden … of proving that enforcement

would be unreasonable and unjust’” under the circumstances. In re Diaz Contracting, Inc., 817

F.2d 1047, 1052 (3d Cir. 1987) (quoting M/S Bremen v. Zapata Offshore Co., 407 U.S. 1, 15

(1972)). To overcome a forum selection clause, the party objecting to the contractual forum

must establish (1) that the clause is the result of fraud or overreaching, (2) that enforcement

would violate a strong public policy of the forum, or (3) that enforcement, in the particular

circumstances of the case, would be so unreasonable that it would deprive a litigant of his day in

court. Coastal Steel v. Tilghman Wheelabrator, Ltd., 709 F.2d 190, 202 (3d Cir. 1983). See also

Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1219 (3d Cir. 1991) (same).

Dismissal is appropriate here because Plaintiff cannot meet his “heavy burden” of

showing that the forum selection clause in his contract with Microsoft is unenforceable.

1. The Forum Selection Did Not Result From Fraud or Overreaching.

“[T]he mere allegation of fraudulent conduct does not suspend operation of a forum

selection clause. Rather, the proper inquiry is whether the forum selection clause is the result of

‘fraud in the inducement of the [forum selection] clause itself.’” MoneyGram Payment Systems,

Inc. v. Consorcio Oriental S.A., No. 01-4386, 2003 WL 21186124, *3 (3d Cir. May 21, 2003)

(citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967)).

Plaintiff cannot seriously contend that the contract’s forum selection clause resulted from

“fraud or overreaching.” First, the forum selection clause was presented to him at the time of

contracting. Toulouse Decl. ¶ 5. Plaintiff had ample opportunity to review and consider the

contract before choosing “ACCEPT.” Id. He has no basis to contend now that its terms resulted

from deception or coercion.

Second, Plaintiff cannot point to the size of Microsoft or the form nature of the contract

as a reason for disregarding the forum selection clause. That Microsoft is a large organization

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and Plaintiff is an individual, or that the forum selection clause was agreed to without negotiating

its terms individually with him is insufficient to establish “fraud or overreaching.” Carnival

Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), disposes of these issues.

In Carnival, the plaintiff was a passenger who sustained personal injuries during an ocean

cruise. 499 U.S. at 589. She sought to litigate in her home state of Washington, despite the

Florida forum selection clause in her cruise ticket. Id. at 588-89. The Supreme Court, however,

enforced the clause and rejected her contention of “overreaching” even though she had no

opportunity to negotiate the terms of the cruise ticket. Id. at 593. The Court noted that “it would

be entirely unreasonable for us to assume that” an individual and a cruise line would bargain for

each term. Id. at 593. “Common sense dictates that a ticket of this kind will be a form contract

the terms of which are not subject to negotiation, and that an individual purchasing the ticket will

not have bargaining parity with the cruise line.” Id.; see Hodes v. S.N.C. Achille Lauro ed Altri-

Gestione, 858 F.2d 905, 913 (3d Cir. 1988) (rejecting unequal bargaining power challenge to

forum selection clause), cert. dismissed, 490 U.S. 1001 (1989); Feldman v. Google, Inc., 513 F.

Supp. 2d 229, 246 (E.D. Pa. 2007) (Giles, J.) (enforcing forum selection clause similar to the one

here and observing that “[a] non-negotiated forum selection clause in a form contract may be

enforceable even if it is not the subject of bargaining”).4

4
See also Wilson of Wallingford, Inc. v. Reliable Data Systems, Inc., No. 95-6686, 1995 WL
734232, *2 (E.D. Pa. Dec. 5, 1995) (“Because the law does not require parties actually to read or
bargain over each term of a contract for it to be enforceable, the critical inquiry is whether the
provision had been reasonably communicated by the agreement, not whether the party actually
read it or bargained over it.”); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 80 cmt. a (1971)
(existence of unequal bargaining power is not basis for invalidating forum selection clause; focus
must be on whether imbalance was unfairly exploited).

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For consumer service providers that do business nationally, preprinted contracts with

clauses that allow for predictability are indispensable, as the Supreme Court recognized in

Carnival. Microsoft could not offer affordable products and services if the law conditioned

enforceability on individual negotiation of each contractual term with millions of consumers.

See Carbajal v. H & R Block Tax Services, Inc., 372 F.3d 903, 906 (7th Cir. 2004) (Easterbrook,

J.) (“Forms reduce transaction costs and benefit consumers because, in competition, reductions

in the cost of doing business show up as lower prices.”).

The clause in this case does not differ materially from the clause in Carnival or Feldman.

Plaintiff can present no evidence of a bad-faith motive, fraud, or overreaching. The Court should

enforce the forum selection clause and dismiss the action under Rule 12(b)(6).

2. Public Policy Favors Enforcement of the Forum Selection Clause.

Enforcement of forum selection clauses in circumstances like these does not violate

public policy. On the contrary, enforcement will advance public policy by carrying out the

parties’ agreement. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) (while

deference “should be afforded to the plaintiff’s initial selection of forum … , ‘a forum selection

clause is treated as a manifestation of the parties’ preference as to a convenient forum.’”);

Feldman, 513 F. Supp. 2d at 247 (“The forum selection clause at issue does not violate a strong

public policy of this forum. Indeed, it would be consistent with the public policy of this forum to

enforce the forum selection clause in order to give force to the parties’ agreement.”). Numerous

decisions across the country have, like Judge Giles in Feldman, enforced forum selection

provisions in online agreements substantially similar to the one here.5

5
See, e.g., CompuServe v. Patterson, 89 F.3d 1257 (6th Cir. 1996) (Internet Service Provider’s
forum selection clause contained in clickwrap agreement sufficient to confer jurisdiction on Ohio
Continued…

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Moreover, courts in this Circuit routinely enforce similar forum selection clauses. See,

e.g., Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 915 (3d Cir. 1988) (holding

that the practice of ignoring forum selection clauses “would be to revisit the ‘parochialism’ and

‘provincialism’ that the Supreme Court decried in [the] Bremen [case]”). See also Salovaara v.

Jackson Nat’l Life Ins. Co., 246 F.3d 289, 297-98 (3d Cir. 2001) (holding the dismissal of case

appropriate under a forum selection clause mandating the resolution of disputes in New York).6

In sum, public policy favors enforcement of the forum selection clause. The Court

should therefore dismiss the action under Rule 12(b)(6).

3. Enforcement of the Forum Selection Clause Will Not Deprive Plaintiff

of His Day In Court.

Adjudicating this case in Washington would not be so “gravely difficult” as to deprive

Plaintiff of his day in court. Although Mr. Schwartz resides in Pennsylvania, “[m]ere

inconvenience or additional expense is not the test of unreasonableness, since it may be assumed

that the plaintiff received under the contract consideration for these things.” Central Contracting

Co. v. Maryland Cas. Co., 367 F.2d 341, 344 (3d Cir. 1966).

….Continued

courts); Hughes v. McMenamon, 204 F. Supp. 2d 178 (D. Mass. 2002) (Internet Service
Provider’s forum selection clause contained in terms of service required dismissal); Forrest v.
Verizon Communications, Inc., 805 A.2d 1007 (D.C. Ct. App. 2002) (affirming dismissal based
on forum selection clause); Barnett v. Network Solutions, Inc., 38 S.W.3d 200 (Tex. App. 2001)
(upholding online forum selection clause); Caspi v. Microsoft Network LLC, 732 A.2d 528 (N.J.
Super. Ct. App. Div. 1999) (affirming dismissal based on forum selection clause).
6
See also Crescent Int’l, Inc. v. Avatar Communities, Inc., 857 F.2d 943, 944-45 (3d Cir. 1988)
(upholding dismissal of case under forum selection clause that mandated resolution of disputes in
Florida); Wall Street Aubrey Golf, LLC, 2006 WL 1525515, at *1 n.1 (3d Cir. June 5, 2006)
(upholding dismissal of case where forum selection clause directs litigation in Pennsylvania);
Feldman, 513 F. Supp. 2d at 247 (enforcing forum selection clause and granting defendant’s
motion to transfer case from Philadelphia to California).

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Thus, courts have repeatedly held that the financial challenges of litigating a case in

another forum will not justify voiding an otherwise valid forum selection clause. See Commerce

Commercial Leasing, LLC v. Jay’s Fabric Center, No. 04-4480, 2004 WL 2457737 (E.D. Pa.

Nov. 2, 2004) (citing Central Contracting Co. v. Maryland Cas. Co., 367 F.2d 341, 344 (3d Cir.

1966)); Ferketich v. Carnival Cruise Lines, No. 02-3019, 2002 WL 31371977, at 6 (E.D. Pa.

Oct. 17, 2002) (holding that although plaintiff “is 75 years old and experiences difficulty in

traveling, this inconvenience is not severe enough to demonstrate that litigating in Florida will

‘be so manifestly and gravely inconvenient’ for her that she will be deprived her day in court”).7

As a practical matter, it is highly unlikely that Mr. Schwartz would have to travel to

Washington except to testify at trial. Until that time, Microsoft would accommodate Mr.

Schwartz wherever practicable. For example, Microsoft would take Mr. Schwartz’s deposition

in Pennsylvania. Moreover, if Mr. Schwartz had to appear for any court hearing before trial (an

unlikely event), Microsoft would consent to his appearing by telephone or video teleconference.

See Feldman, 513 F. Supp. 2d at 247 (enforcing forum selection clause requiring despite

plaintiff’s health risks where defendant was willing to accommodate plaintiff).

In short, Plaintiff freely and voluntarily chose to contract with Microsoft. In entering into

the contract, he accepted its benefits as well as its obligations. Because the contract prohibits

Plaintiff from suing Microsoft in Pennsylvania, the Court should dismiss this action, without

prejudice, allowing him to proceed in a federal or state court in King County, Washington.

7
See also Falcone v. Mediterranean Shipping Co., No. 01-3918, 2002 WL 32348270 (E.D. Pa.
Apr. 3, 2002) (holding that Italy is not so inconvenient a forum as to justify invalidation of a
forum selection clause); Drucker’s, Inc. v. Pioneer Electronics (USA), Inc., No. 93-1931, 1993
WL 431162 (D.N.J. Oct. 20, 1993) (holding that dismissal with leave to commence action in
California is not so onerous as to justify invalidating forum selection clause).

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B. The Traditional 1404(a) Factors Favor Transfer to the Western District of

Washington.

If the Court declines to find the forum selection clause dispositive under Rule 12(b)(6)

and section 1406(a), Microsoft respectfully requests, in the alternative, that the Court transfer

this action to the Western District of Washington under 28 U.S.C. § 1404(a).

Section 1404(a) provides that, “[f]or the convenience of parties and witnesses, in the

interest of justice, a district court may transfer any civil action to any other district or division

where it might have been brought.” A 1404(a) motion calls upon the court to weigh several

factors, including (1) where the relevant agreements were negotiated and executed, (2) the state

most familiar with the governing law, (3) the plaintiff’s choice of forum, (4) the parties’ contacts

with the forum, (5) the contacts relating to the plaintiff’s cause of action in the chosen forum, (6)

the differences in the costs of litigation in the two forums, (7) the availability of compulsory

process to compel attendance of unwilling non-party witnesses; (8) the ease of access to sources

of proof; and (9) the public policy of the forum state. Stewart Org. v. Ricoh Corp., 487 U.S. 22,

29 (1988).

Notably, the presence of a forum selection clause is afforded “controlling weight in all

but the most exceptional cases.” Id. at 33 (1988) (Kennedy, J., concurring) (emphasis added).

1. Valid Forum Selection Clause

Here, Plaintiff agreed to a valid and enforceable forum selection clause. Because a valid

forum selection clause is given “controlling weight in all but the most exceptional cases,”

Stewart Org., 487 U.S. at 33, the other 1404(a) factors would have to line up overwhelmingly

against transfer to disregard the contractually agreed forum. Yet the other factors, discussed

below, either support transfer or are neutral.

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2. Location Where Relevant Agreements Negotiated and Executed

Plaintiff, a Pennsylvania resident, seeks to litigate this case on behalf of a nationwide

class. Members of the proposed class, who are dispersed throughout the country, manifested

their assent to the forum selection cause by selecting “ACCEPT” before using the Xbox LIVE

service. Toulouse Decl. ¶ 5. Accordingly, no particular geographic location dominates. This

factor is neutral.

3. Plaintiff’s Choice of Forum

Although courts often accord significant weight to a plaintiff’s choice of forum, the

proposed representative’s choice of forum receives considerably diminished weight where (1)

the chosen forum is not the plaintiff’s home,8 (2) few of the operative facts underlying plaintiff’s

claims took place in the chosen forum,9 or (3) plaintiff’s role will likely be minimal, as in most

cases brought as class actions.10

On balance, these factors weigh in favor of transfer. First, Plaintiff’s role will be minimal

given that this is a proposed class action lawsuit. Bolton, 549 F. Supp. at 1313-14 (“It has been

consistently held [that] plaintiff’s choice of forum is considerably reduced in class … actions.”).

Second, few of the operative facts underlying Plaintiff’s Second Amended Complaint allegedly

took place in this district. For example, while Plaintiff alleges that Microsoft “is liable for its

fraudulent handling of plaintiffs’ Microsoft point system,” Sec. Am. Compl. ¶ 5, none of the

supposed “fraudulent handling” of Plaintiff’s account allegedly took place in this district.

8
See Siegel v. Homestore, Inc., 255 F. Supp. 2d 451, 456 (E.D. Pa. 2003).
9
See Headon v. Colorado Boys Ranch, No. Civ. A. 204CV04847LDD, 2005 WL 1126962, at *4
(E.D. Pa. May 5, 2005).
10
See Bolton v. Tesoro Petroleum Corp., 549 F. Supp. 1312, 1313-14 (E.D. Pa. 1982).

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Third, although Plaintiff resides in this district, that hardly constitutes a “most

exceptional case” that would justify disregarding the forum selection clause. Stewart Org., 487

U.S. at 33. In fact, the procedural history of this case suggests that the substitution of Mr.

Schwartz (a Pennsylvania resident) for Mr. Muniz (a California resident) was the result of blatant

forum shopping. But the substitution does not help because, as the United States Supreme Court,

the Third Circuit, and numerous district courts have made clear, the forum selection clause is just

as enforceable whether the proposed class representative lives in Pennsylvania, California, or

elsewhere. Thus, the Court should afford Plaintiff’s choice little—if any—deference.

4. Parties’ Contacts with the Eastern District of Pennsylvania

The parties’ contacts with the Eastern District of Pennsylvania weigh in favor of transfer.

While Microsoft does business in this district, Plaintiff alleges nothing about that fact which

justifies disregarding the forum selection clause. And while Plaintiff resides in this district, his

role in this putative class action will be minimal. Bolton, 549 F. Supp. at 1313-14. In addition,

and as is customary in class action litigation, Microsoft would accommodate Plaintiff and depose

him at a location he selects.

This factor too weighs in favor of transfer.

5. Contacts in the Chosen Forum Relating to Plaintiff’s Causes of Action

As discussed, supra, Plaintiff’s allegations of wrongful conduct have no particular

relationship with this district. Instead, Microsoft’s purported acts occurred in Washington. This

factor weighs in favor of transfer to the Western District of Washington.

6. Differences in the Costs of Litigation and Ease of Access to Sources of

Proof

The vast majority of witnesses and documents relevant to Plaintiff’s claims are located in

Washington, allowing for increased efficiency and easier access to sources of proof upon transfer

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to the Western District of Washington. Toulouse Decl. ¶¶ 11-12. When key witnesses and

documents are located in a different venue, courts favor transfer. Bolton, 549 F. Supp. at 1315.

Here, the key witnesses and documents are located in Washington, not Pennsylvania. Toulouse

Decl. ¶¶ 11-12. In fact, no witnesses or documents are likely to be in this district other than

Plaintiff and the documents in his possession.

7. Availability of Compulsory Process on Non-Party Witnesses

Most witnesses with knowledge relevant to Plaintiff’s claims will be located in

Washington, where Microsoft is headquartered. The location of non-party witnesses favors

transfer.

8. Relevant Public Policy of Forum State

Microsoft recognizes that Pennsylvania has an interest in regulating the actions of

corporations that do business within its territorial boundaries to ensure fair business practices.

But that interest is tenuous at best in a proposed nationwide class action where Defendant resides

elsewhere and Plaintiff agreed to litigate his claims in Washington. Indeed, the court in Feldman

made clear that public policy favors enforcing forum selection clauses. 513 F. Supp. 2d at 247

(“[I]t would be consistent with the public policy of this forum to enforce the forum selection

clause in order to give force to the parties’ agreement.”).

In sum, a valid forum selection clause, coupled with the other factors in a section 1404(a)

analysis, shows that the Court should transfer this case to the Western District of Washington if

it does not dismiss the action under Rule 12(b)(6) and section 1406.

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IV. CONCLUSION

Plaintiff sued in the wrong forum. By contract, he agreed to bring this proposed

nationwide class action in King County, Washington. Accordingly, the Court should dismiss this
case under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1406 or, in the alternative, transfer it under
28 U.S.C. §1404(a) to the most convenient forum, the Western District of Washington.

Respectfully submitted,

/s/ Charles B. Casper

Charles B. Casper
John G. Papianou

MONTGOMERY, MCCRACKEN,
WALKER & RHOADS, LLP
123 South Broad Street
Philadelphia, PA 19109
Tel: (215) 772-1500
Fax: (215) 772-7620

Attorneys for Defendant

MICROSOFT CORPORATION

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CERTIFICATE OF SERVICE

I certify that on March 16, 2010, I filed the foregoing Motion of Defendant Microsoft

Corporation to Dismiss Plaintiff’s Second Amended Complaint Under Rule 12(b)(6) of the

Federal Rules of Civil Procedure using the Court’s CM/ECF system, which will send e-mail

notification of the filing to Plaintiff’s Counsel. These documents are available for viewing and

downloading via the CM/ECF system.

/s/ John G. Papianou