Declaratory Judgment Action is dismissed for lack of actual controversy
Microsoft Corporation v. Webxchange Inc., C.A. No. 09-484-JJF, October 30, 2009.
Farnan, J. Defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction is granted.
The patents-in-suit are directed to methods and systems for enabling transactions on a web or other networks. Related cases are currently pending in the Delaware District Court wherein defendant has alleged infringement of the same patents-in-suit against certain entities which are not parties here (the “Related Cases”). Defendant moves to dismiss for lack of subject matter jurisdiction, or in the alternative, to transfer the case to the Northern District of California. The Court finds that none of the controversies cited by plaintiff give rise to a controversy here. First, there are no direct allegations of infringement against plaintiff, although at least one of the defendants in the Related Cases seeks indemnification from plaintiff based upon its use of Virtual Earth. Next, no controversy exists based on alleged accusations against plaintiff’s customers’ use of Virtual Earth or MapPoint. There is no indication that defendant is engaging in “scare-the-customer” tactics or using plaintiff’s customers to get to them. Moreover, only three of plaintiff’s many customers are involved in the Related Cases which does not constitute an imminent future threat. Finally, defendant’s refusal to execute a covenant not to sue, while relevant, is not dispositive. Defendant’s motion to dismiss is granted.
