Microsoft Corp. v. Computer Warehouse, No. Civ. 98-2136(SEC).

• Decision Date: 11 February 2000
• Docket Number: No. Civ. 98-2136(SEC).
• Citation: 83 F.Supp.2d 256
• Parties: MICROSOFT CORPORATION, et al., Plaintiffs, v. COMPUTER WAREHOUSE, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

83 F.Supp.2d 256

MICROSOFT CORPORATION, et al., Plaintiffs, v. COMPUTER WAREHOUSE, et al., Defendants.

No. Civ. 98-2136(SEC).

United States District Court, D. Puerto Rico.

February 11, 2000.

Jorge E. Pérez-Díaz and Heidi L. Rodriguez-Benitez, Pietrantoni Mendez & Alvarez, San Juan, P.R., for plaintiffs.

Carlos Rodríguez-García, San Juan, P.R., for defendants.

Ivan Diaz-Lopez, San Juan, PR, for defendants.

OPINION AND ORDER

CASELLAS, District Judge.

This case is before the Court on the plaintiffs' motion to dismiss a counterclaim filed by defendants Metro Computers, Inc., Manuel González and the conjugal partnership with his wife (hereinafter, collectively, "Metro") for the alleged wrongful procurement of an ex parte seizure and impounding order. (Docket # 37). Because Metro's counterclaim (Docket # 47) fails to state a claim upon which relief can be granted the Court dismisses it pursuant to Fed.R.Civ.P. 12(b)(6).¹

Rule 12(b)(6) Standard

In assessing whether dismissal for failure to state a claim is appropriate, "the trial court, must accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff's favor, and determine whether the complaint, so read, limns facts sufficient to justify recovery on any cognizable theory." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.1998) (citations omitted). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), quoted in Davis v. Monroe County Bd. of Education, 526 U.S. 629, 119 S.Ct. 1661, 1676, 143 L.Ed.2d 839 (1999). See also Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990) (dismissal for failure to state a claim is warranted "only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory").

But "[a]lthough this standard is diaphanous, it is not a virtual mirage." Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.1997) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988)). In order to survive a motion to dismiss, "a complaint must set forth `factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.'" Id. In judging the sufficiency of a complaint, courts must "differentiate between well-pleaded facts, on the one hand, and `bald assertions, unsupportable conclusions, periphrastic circumlocution, and the like,' on the other hand; the former must be credited, but the latter can safely be ignored." LaChapelle, 142 F.3d at 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)). See also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999). Courts, moreover, "will not accept a complainant's unsupported conclusions or interpretations of law." Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir.1993).

While in ruling upon a motion to dismiss the court must ordinarily ignore matters outside the pleadings, see, e.g., Maldonado v. Dominguez, 137 F.3d 1, 6 (1st Cir.1998), Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir.1997); Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174, 177 (1st Cir.1997), it may consider any documents which are referred to in the nonmovant's pleadings and which are central to his or her claim. Cf. Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir.1998). Thus, we set forth the relevant facts as alleged in Metro's amended counterclaim, aided by the various documents therein referred, drawing all reasonable inferences in Metro's favor. See Doe v. Walker, 193 F.3d 42, 42 (1st Cir.1999).

Background

The plaintiffs are the copyright and trademark owners of various software programs. On October 13, 1998, they filed this action for infringement of their copyrights and trademarks and for unfair competition, tort and unjust enrichment stemming from the illegal reproduction and sale of their products. (Docket # 1). They also moved for a temporary restraining order, an order for impoundment, a writ of seizure, and an order to show cause pursuant to 17 U.S.C. §§ 502, 503(a) and Fed. R.Civ.P. 65(b). (Docket # 2). In support of this motion, the plaintiffs submitted, inter alia, an unsworn declaration under penalty of perjury by Roberto Morales Rivera, a private investigator. (Id., Exhibit # 7).

In his declaration, Morales Rivera affirms as follows. On September 5, 1998, "a person under [Morales Rivera's] supervision" (hereinafter the "unidentified person") visited Metro's computer store. There he was assisted by Manuel González, Metro's purported owner. (Id., Exhibit # 7, at ¶¶ 2-3). González offered to sell the unidentified person a tower clone central processing unit ("CPU") with the plaintiffs' programs installed for a purchase price of $800.00. A few days later, Morales Rivera telephoned González at the store to inquire whether the offer made to the unidentified person was still good. González said that it was. Morales Rivera further asked González whether he could additionally install another one of plaintiffs' programs for the same purchase price. González said that he could.

Morales Rivera subsequently went to the store to pick up his CPU. There, González, who was still in the process of installing the programs, asked Morales Rivera if he would like yet another one of plaintiffs' programs installed as well, to which Morales Rivera agreed. Morales Rivera was able to see how González installed the software. After all the components had been installed, Morales Rivera paid González the purchase price and left with the CPU. The software programs in the CPU's hard disk were subsequently examined by a computer technician and determined to have been illegally installed. (Id., Exhibit # 8).

On October 14, 1998, upon the motion by the plaintiffs which was in part supported by Morales Rivera's unsworn declaration, the Court issued a "Temporary Restraining Order, and Order for Impoundment, Seizure and Delivery, and Order to Show Cause Why Preliminary Injunction Should Not Be Issued." (Docket # 5). The Court ordered that following items in Metro's control be seized, impounded, photographed and video filmed and/or recorded:

1. All copies, or reproductions of Plaintiffs' copyrighted software programs, including, but not limited to, Microsoft Office 97 (Professional Edition), Microsoft Office 97 (Standard Edition); Microsoft Excel 97; Microsoft Access 97; Microsoft Power Point 97; Microsoft Outlook 97; Microsoft Windows 95, Microsoft Windows 98, Adobe Pagemaker 6.5 (Windows), Adobe Photoshop 4.0, and works derivative thereof, among others; and of other copyrighted works owned by Plaintiffs as identified by Plaintiffs' representatives;

2. All 3.5" and 5.25" computer disks, CD-ROM's, or any other storage media, containing unlawful copies of Plaintiffs' software programs as described in paragraph 1 above;

3. All copies of manuals for Plaintiffs' software programs;

4. All licence documents and copies of such documents related to the copying of Plaintiffs' software programs and related copyrighted words as described in paragraph 1 above; [and]

5. All computers which have installed in their hard disk any unlicenced copy of Plaintiffs' copyrighted programs[.]

(Id. at 9-10).

Metro initially alleged in its original counterclaim that the plaintiffs wrongfully obtained the seizure order through the use of fraud because Morales Rivera's unsworn declaration is perjured. In support of this contention, Metro alleged that "[t]he investigator," presumably Morales Rivera, "perjured himself and issued a statement that does not conform to the real facts of the case and furthermore, constitute entrapment." (Docket # 26, at 5). Additionally, Metro averred as follows:

Plaintiffs employees (sic), investigators and/or contractors, who benefited (sic) economically from this transaction, entramped (sic) defendant by deceiving, representing, and inducing defendant to include in the purchased central processing unit (CPU) other programs that were not included in the program bundle available from the manufacturer.

Plaintiffs employees (sic), investigators, and/or contractors made specific representations to defendant that they were licenced users and therefore made false statements and pretenses in order to entramp (sic) Defendant.

On the basis of the false and incorrect statement issued by Plaintiffs' investigator, the Court was moved to issue an order on October 14, 1998[,] to seize, impound and photograph [certain items].

....

Said order was served on appearing Defendant's premises and property immediately ... through a much media publicized operation. This media operation incorrectly and falsely depicted appearing Defendant as a copyright and trademark infringer who prayed on unsuspecting clients and patrons.

....

Furthermore, the negative publicity generated by the illegal search and seizure conducted by Plaintiff's (sic) based on self-serving and fabricated statements and over acts by Plaintiffs investigators, hired "help" and technicians caused and are intimately related to extreme prejudice and damage to appearing Defendant.

Plaintiff retained hired and/or selected the investigators and individuals who planned and executed the entrampment (sic) of Defendant.

(Id.). Metro also alleged that the plaintiffs impounded materials outside the scope of the seizure and impounding order. (Id.). Premised on the these allegations, Metro prayed for damages under article 1802 of the Civil Code of Puerto Rico, P.R.Laws Ann. tit. 31 § 5141 (1991) and 42 U.S.C. § 1983.

The plaintiffs countered by filing the instant motion contending, inter alia, that Metro's allegations fell short of establishing a damages claim under article 1802. In...