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 HONORABLE RICHARD A. JONES 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

BRIAN JOHNSON, et al., 

Plaintiffs, 

v. 

MICROSOFT CORPORATION, 

Defendant. 

CASE NO. C06-900RAJ 

ORDER 

I. INTRODUCTION 

This matter comes before the court on Plaintiffs’ motion for leave to amend their 

complaint (Dkt. # 223). The court has considered the parties’ briefing and supporting 

evidence, and has heard from the parties at oral argument. For the reasons explained 

below, the court GRANTS IN PART and DENIES IN PART the motion. 

II. BACKGROUND 

In April 2008, Plaintiffs filed the second amended complaint in this putative classaction lawsuit against Defendant Microsoft Corporation (“Microsoft”) based on 

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Microsoft’s distribution of Windows Genuine Advantage (“WGA”) software, alleging 

claims for unjust enrichment, breach of End User License Agreement (“EULA”) 

contracts, violation of Washington’s Consumer Protection Act, and trespass to chattels, 

nuisance and interference with property. In September 2008, Plaintiffs filed a motion for 

class certification. In June 2009, the court granted Microsoft’s moved for summary 

judgment against the breach-of-contract claims. In August 2009, Plaintiff Charles Ellis 

voluntarily dismissed his claims against Microsoft with prejudice, and subsequently filed 

a notice of appeal. In September 2009, Microsoft filed its Opposition to Plaintiffs’ classcertification motion. On November 20, 2009, the class-certification motion’s noting date, 

the Plaintiffs withdrew the motion, and thereafter indicated an intent to withdraw class 

allegations. Plaintiffs filed a motion for leave to amend their complaint, proposing an 

amended complaint that would eliminate most (but not all) class allegations, add a new 

cause of action and related allegations, and specify injunctive relief sought. 

Microsoft opposes the addition of the new cause of action and related allegations, 

and the modified injunctive relief section; it does not oppose the elimination of the class 

claims, so long as the Plaintiffs do not re-inject them at a later point in the proceeding. 

Microsoft also requests leave to file a fee petition for the expenses incurred as a result of 

defending against Plaintiffs’ class-certification motion, and, if Plaintiffs are allowed to 

add a new cause of action, leave to file a fee petition for additional discovery costs 

incurred as a result of the amendments. 

III. ANALYSIS 

Fed. R. Civ. P. 15(a)(2) provides that leave to amend a pleading “shall be freely 

given when justice so requires.” Amendments are generally allowed absent bad faith, 

undue delay, futility, or prejudice to the opposing party. Eminence Capital, L.L.C. v. 

Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir. 2003). 

1. Plaintiffs Shall Not Add a Cause of Action or Related Factual Allegations. 

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Plaintiffs initially proposed adding a new cause of action for fraudulent 

misrepresentation, negligent misrepresentation, and fraudulent concealment, and included 

additional factual allegations to support that cause of action. See Proposed Third 

Amended Consolidated Complaint (“Proposed TACC”) (Dkt. #223) ¶¶ 48-83, 232-258. 

Microsoft opposed those additions in its Opposition, and Plaintiffs agreed to withdraw 

those proposed amendments in their Reply. Thus, based on Plaintiffs’ agreement, the 

court DENIES Plaintiffs’ motion insofar as it seeks to add ¶¶ 48-83, 232-58. 

2. Plaintiffs Shall Not Amend the Complaint to Seek Additional Forms of 

Injunctive Relief. 

Plaintiffs’ proposed amendments also include specifying a number of new 

remedies sought, specifically the injunctive relief detailed at Proposed TACC ¶¶ 218-219. 

Microsoft opposed these amendments on the grounds of futility and delay, and contended 

that they would require additional discovery. At oral argument, Plaintiffs’ counsel 

explained that the injunctive relief amendments were proposed in the interest of 

specificity, but that Plaintiffs would prefer to eliminate those paragraphs rather than face 

the imposition of terms or the need to take additional discovery. Thus, with Plaintiffs’ 

preference in mind, the court DENIES Plaintiffs’ motion to amend insofar as it seeks to 

add new forms of injunctive relief. 

3. Plaintiffs Shall Withdraw All Class Allegations. 

 The Proposed TACC eliminates most of the class allegations, but includes class 

claims with respect to the breach-of-contract claim previously dismissed on summary 

judgment and appealed. See Proposed TACC ¶ 84. Plaintiffs contend that they must 

include these claims in an amended complaint to preserve appellate rights, but did not 

any authority on point to support that proposition. Microsoft, however, submitted a case 

concluding that an amended complaint need not include claims previously dismissed on 

summary judgment in order to preserve appellate rights. See USS-POSCO Indus. v. 

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Contra Costa County Bldg. & Const., 31 F.3d 800, 811-12 (9th Cir. 1994). Therefore, 

because the class claims need not be included for appellate purposes and would create 

unnecessary confusion if they were included, the court GRANTS Plaintiffs’ motion 

insofar as it seeks to withdraw class claims, but clarifies that all class claims should be 

withdrawn. 

4. Microsoft May File a Petition for Expenses Incurred in Defending Against the 

Withdrawn Class-Certification Motion. 

The court has broad authority to impose reasonable conditions upon amendment. 

See Collaboration Prop., Inc. v. Tandberg ASA, 2006 WL 2398763, at *3 (N.D. Cal. June 

27, 2006) (citing Firchau v. Diamond Nat’l Corp., 345 F.2d 269, 275 (9th Cir. 1965) 

(authorizing compensation for expense caused by the plaintiff’s failure to file adequate 

pleading in the first place)). Microsoft has requested leave to file a petition for the 

expenses incurred in defending against Plaintiffs’ withdrawn class-certification motion, 

and the court agrees that this is an appropriate condition on the Plaintiffs’ amendment. 

The court finds this to be appropriate because of the Plaintiffs’ delay in 

withdrawing the class-certification motion and seeking amendment. Though the 

Plaintiffs highlight that the class claims were withdrawn prior to argument or ruling on 

the class-certification motion, Plaintiffs fail to explain how this should comfort 

Microsoft, who incurred expense that could have been avoided if the Plaintiffs had 

evaluated its case anytime between the court’s summary judgment ruling (June 23, 2009) 

and Microsoft’s due date for the class-certification Opposition (September 22, 2009). 

Instead, the Plaintiffs decided to withdraw the motion on its noting date. It is true that as 

a result, Microsoft achieved its goal (in that class claims were eliminated), but that does 

not change the fact that Microsoft was required to expend resources that were eventually 

rendered unnecessary by Plaintiffs’ withdrawal. 

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Thus, while Plaintiffs maintain a “no harm, no foul” perspective, it is too late for 

that argument. If Plaintiffs had withdrawn their class-certification motion before 

Microsoft had prepared its Opposition, that could be a “no harm, no foul” situation. But 

here, the “harm” was irreversibly inflicted when Plaintiffs’ motion required Microsoft to 

prepare a defense, and it is not mollified by Plaintiffs’ willingness to eliminate some of 

the additions to the Proposed TACC. Under these circumstances, the court finds that it is 

appropriate for the Plaintiffs to reimburse Microsoft for costs related to defending against 

the class-certification motion. 

5. The Parties Shall Meet and Confer to Discuss a Proposed Case Schedule. 

 As discussed at oral argument, this case needs a new scheduling order in light of 

the events of the past few months. Counsel represented that they would discuss 

scheduling matters among themselves and file a proposed scheduling order within ten 

days of the date of this order. 

IV. CONCLUSION 

For the reasons stated above, Plaintiffs’ motion (Dkt. # 223) is GRANTED IN 

PART and DENIED IN PART. The parties shall file an agreed proposed case schedule 

no later than January 25, 2010. The Plaintiffs shall file an amended complaint that 

conforms with this order no later than January 29, 2010. The Defendant may file a fee 

petition no later than February 12, 2010. The Plaintiffs may file an opposition to the fee 

petition no later than February 26, 2010, and the Defendant may file a reply brief no later 

than March 5, 2010.

DATED this 15th day of January, 2010. 

AThe Honorable Richard A. Jones 

United States District Judge 

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