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March 16, 1999


The opinion of the court was delivered by: Castillo, District Judge.


As we near the Twenty-First Century, the media has focused on many potential Y2K problems. This focus will inevitably lead to much litigation, see, e.g., Jack E. Brown, Portents of the Year 2000 Computer Problem, 15 Santa Clara Computer & High Tech. L.J. 109, 116-21 (Jan. 1999) which the courts will need to determine is meritful or meritless. Unfortunately for the plaintiff, we find this lawsuit falls the latter category.


Kaczmarek's complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Generally, when deciding a motion to dismiss, a court must assume that the facts pleaded in the complaint are true and resolve ambiguities in favor of the plaintiff. See, e.g., Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998); Early v. Bankers Life and Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992). But "`documents attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint.'" Levenstein, 164 F.3d at 347 (quoting Wright v. Associated Ins. Cos., Inc., 29 F.3d 1244, 1249 (7th Cir. 1994)). "It is a well-settled rule that when a written instrument contradicts allegations in the complaint . . ., the exhibit trumps the allegations." Northern Ind. Gun & Outdoor Shows, Inc. v. City of South Bend; 163 F.3d 449, 454 (7th Cir. 1998). This exception applies in particular to cases involving contract interpretation. Levenstein, 164 at 347; Northern Ind. Gun & Outdoor Shows, 163 F.3d at 452-53.

The parties to this action have attached a multitude of documents to the various motions and memoranda currently under consideration. Before relating the pertinent facts, we must clarify which documents are appropriately before us. Kaczmarek's complaint alleges causes of action based in part on contract law. Specifically, she claims that the alleged defect in the software she purchased violates Microsoft's express and implied warranties covering the software. Thus, we may consider the warranty attached to Microsoft's motion to dismiss. (Ex. 3, Att. A, "End — User License Agreement for Microsoft Software.") The warranty guarantees that FoxPro "will perform substantially in accordance with the accompanying written materials," specifically the user manual, and provides a 90-day rejection period. Thus, the manual, (Pl.'s Resp. to Def.'s Mot. to Dismiss Ex. A, FoxPro Manual) ("FoxPro Manual"), was incorporated into the, contract and may properly be considered at this stage of the proceedings. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1452 (7th Cir. 1996) (a "shrinkwrap license" that includes a warranty contained inside a box of software constitutes a contract between buyer and seller if, after an opportunity to read the terms and to reject them by returning the software, the buyer does not return the software); see also Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1150 (7th Cir. 1997) (a warranty contained in the box in which a computer is shipped constitutes a contract between the seller and customer, provided the customer has an opportunity to reject the contract).

Kaczmarek's entire complaint rests on her allegations that Microsoft falsely represented that FoxPro is Y2K compliant. The complaint repeatedly refers to the warranty and the operation of FoxPro as provided in the manual. For these reasons, the warranty and manual are not "outside the pleadings" and this Court may consider them without converting Microsoft's motion to dismiss into a motion for summary judgment. Wright, 29 F.3d at 1248. We turn now to the facts.


Kaczmarek is a software developer; she creates specialized computer programs for her clients. In 1995 she purchased Microsoft's FoxPro 2.6, a software development program used by developers to customize database applications. Kaczmarek complains that the date-field function of FoxPro 2.6 contains a Y2K defect and that every application she has written using FoxPro therefore contains the defect. The result of Microsoft's alleged wrongdoing, she claims, is that computer programs she has written using FoxPro do not accurately process twenty-first century dates.

FoxPro defines date fields using the "Century On" or "Century Off' command. The FoxPro Manual describes the Century functions as follows:


Purpose:              Determines whether or not FoxPro displays
                      the century portion of date expressions
Syntax:               SET CENTURY ...

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