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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

BRIAN JOHNSON, et al.,

 Plaintiffs,

 v.

MICROSOFT CORPORATION,

 Defendant.

CASE NO. C06-0900RSM

ORDER GRANTING MOTION

FOR JUDGMENT ON THE

PLEADINGS

This matter comes before the Court on defendant’s Motion for Judgment on the Pleadings,

in which defendant asks the Court to dismiss plaintiffs’ claim that under the terms of the Windows

XP End User License Agreement (“EULA”) each plaintiff is entitled to an award of $5.00 in

liquidated damages. (Dkt. #41). Defendant argues that the provision upon which plaintiffs’ claim is

based is a limited liability provision, not a liquidated damages provision. Plaintiffs respond that

defendant has misinterpreted the provision and they are entitled to the damages they seek

thereunder. (Dkt. #51).

Having considered defendant’s motion, plaintiffs’ opposition, defendant’s reply, the

declarations and exhibits in support thereof, and the remainder of the record, the Court hereby finds

and ORDERS:

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ORDER

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(1) Defendant’s Motion for Judgment on the Pleadings (Dkt. #41) is GRANTED. Under

Rule 12(c) of the Federal Rules of Civil Procedure, any party may seek judgment on the pleadings

after the pleadings are closed. Fed. R. Civ. P. 12(c). A judgment on the pleadings is properly

granted when, taking all of the allegations in the non-moving party’s pleadings as true, the moving

party is entitled to judgment as a matter of law. Fajardo v. County of Los Angeles, 179 F.3d 698

(9th Cir. 1999) (citation omitted); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542,

1550 (9th Cir. 1990).

Plaintiffs argue that the instant motion is not proper because it does not dispose of an entire

claim, but rather seeks to dispose of an aspect of relief requested. The Court finds plaintiffs’

argument misguided. Plaintiffs themselves have alleged a claim for liquidated damages in each of

the three causes of action alleged in their Amended Complaint. Further, courts in the Ninth Circuit

have reviewed and dismissed claims for various damage awards, such as liquidated damages claims,

on Rule 12(c) motions. See, e.g. Tomlinson v. Indymac Bank, F.S.B., 359 F. Supp.2d 891 (C.D.

Cal. 2005) (addressing whether certain remedies were available under California’s Unfair

Competition Law); see also Bordeau v. Saginaw Control & Engineering, Inc., 446 F. Supp.2d 766,

772 (E.D. Mich. 2006) (dismissing compensatory and liquidated damages claims). Thus, the Court

turns to plaintiffs’ substantive arguments.

Section 18 of the EULA at issue in this motion states:

18. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any

damages that you might incur for any reason whatsoever . . . the entire liability of

Microsoft and any of its suppliers under any provision of this EULA and your

exclusive remedy hereunder . . . shall be limited to the greater of the actual

damages you incur in reasonable reliance on the Software up to the amount

actually paid by you for the Software or US$5.00.

(Dkt. #51, Ex. A). The Court finds nothing ambiguous about this language; it is clear and

straightforward. As written, the provision limits defendant’s liability to the greater of the price

actually paid for the software or $5.00. It does not establish a fixed sum, or liquidated damage

amount, to serve as a proxy amount for unquantifiable or unidentifiable damages as plaintiffs assert. 

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ORDER

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Certainly, the Court would not expect plaintiffs to argue that they should receive only $5.00 if they

had actually paid $10.00 for the software.

This conclusion is supported by ample caselaw. For example, in Western Union Tel. V.

Nester, 309 U.S. 582 (1940), the United States Supreme Court held that where a provision does not

prescribe a definite liability, but rather limits the maximum permissible recovery for actual loss or

damage properly alleged and proved by evidence, such clause is a limitation of liability, not a

liquidated damages clause. Western Union, 309 U.S. at 585. Such is the instant case. Accordingly,

the Court grants defendant’s motion, and DISMISSES plaintiffs’ claim for liquidated damages

under Section 18 of the EULA.

(2) The Clerk shall send a copy of this Order to all counsel of record.

DATED this 17th day of August, 2007.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

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