United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's motion to
dismiss (Dkt. No. 21) Plaintiff's amended complaint (Dkt.
No. 20). Having thoroughly considered the parties'
briefing and the relevant record, the Court finds oral
argument unnecessary and hereby GRANTS the motion for the
reasons explained herein.
following factual allegations are taken from Plaintiff's
first amended complaint and the many exhibits attached
thereto. Plaintiff is a foreign corporation
chartered and headquartered in Riyadh, Saudi Arabia.
(Id. at 2.) Plaintiff is a privately-owned,
diversified company; it is not an educational institution or
government agency. (Id. at 3.) In 2013, Plaintiff
sought to provide training services for Microsoft Office
Specialist (“MOS”) and Microsoft Technology
Associate (“MTA”) certificates in Saudi Arabia.
(Id.) The MOS and MTA certificates consist of a
limited license to use the programs and a testing service and
certification examination process. (See Dkt. Nos.
20-3 at 3, 20-6 at 6-8.)
February 2013, Microsoft Arabia Co., Ltd., a wholly-owned
subsidiary of Defendant, named Plaintiff its exclusive
authorized partner in Saudi Arabia. (See Dkt. No. 20
at 3.) Microsoft Arabia sent the Technical and Vocational
Training Corporation (“TVTC”) of Saudi Arabia a
letter that stated Plaintiff was “the only authorized
partner of Microsoft Arabia Co. Ltd. in Kingdom of Saudi
Arabia in . . . Management, Marketing, organization and
operation of . . . [MOS and MTA]” for a five-year
period beginning on January 1, 2013. (See Dkt. No.
20-1 at 2- 3.) In March 2013, Certiport, a business of NCS
Pearson, Inc. that owns the MOS delivery and testing service,
sent a letter to TVTC stating that Plaintiff had been named
as the provider of MOS and MTA exams for Saudi Arabia. (Dkt.
Nos. 20 at 3, 20-2 at 4.)
22, 2013, Plaintiff met with Samir Noman, the President of
Microsoft Arabia, Ayman Al-Takrori, and Ahmad Issa.
(See Dkt. Nos. 20 at 5; 20-6 at 6, 8-9.) The parties
agreed that TVTC governed all professional certifications in
Saudi Arabia, that Plaintiff was the “Exclusive
Microsoft Academy Service Partner, ” and that Plaintiff
was asked to place “a minimum order of 1, 000 Volume
Licenses.” (Dkt. No. 20 at 5; see Dkt. No.
20-6.) On June 24, Plaintiff sent an application and
agreement of sale on credit to ALFalak Electronic Equipment
and Supplies Company. (Dkt. Nos. 20 at 4, 20-4 at 1.) On the
same day, Plaintiff submitted an order to Al Falak for 1, 000
MOS CertSitePack volume licenses, with payment due by the end
of April 2014 and with “Delivery within One
Week.” (Dkt. Nos. 20 at 4, 20-5 at 2.) Defendant was not
involved in the discussions between Plaintiff and Al Falak,
(see Dkt. No. 20-23 at 6), and Plaintiff ultimately
purchased the licenses from Al Falak, (see Dkt. Nos.
20-4, 20-5, 20-12).
25, 2013, Microsoft Ireland Operations Limited sent an email
to TVTC and Plaintiff regarding the order for 1, 000 volume
licenses. (See Dkt. No. 20-7.) The details of the
confirmation listed TVTC as the customer and Plaintiff as a
channel partner. (Id. at 7.) Plaintiff subsequently
sent an email to Issa stating that “the deal should be
done with the eLearning Dept not with the IT, ” and
Issa responded that the change would be made. (Id.
asserts that the confirmation used “fake or invalid
email addresses to manipulate the ordering process and
defraud” Plaintiff and listed TVTC as the customer to
circumvent Defendant's internal policy of selling volume
licenses only to governments or academic institutions.
(See Dkt. No. 20 at 6.) Plaintiff further asserts
that it was told that the volume licenses would be sent to
Plaintiff “according to the agreement with Microsoft
appointed [sic] distributor, Al Falak.” (Id.)
December 24, 2013, Microsoft Arabia signed a cooperation
agreement with TVTC, which stated that Microsoft Arabia
“represents Global Microsoft in” Saudi Arabia.
(Dkt. No. 20-8 at 2.) Microsoft Arabia and TVTC agreed that
TVTC would authorize Plaintiff to handle matters pertaining
to the MOS certification process. (Id. at 3.)
Plaintiff asserts that the cooperation agreement precluded it
from delivering or selling MOS exams in Saudi Arabia during
the six months following its purchase of the volume licenses.
(See Dkt. No. 20 at 6-7.)
same day, TVTC and Plaintiff entered into an operation and
marketing agreement which stated that Plaintiff was in charge
of “physical, organizational, and operational
obligations resulting from execution of this agreement . . .
as required for executing the” cooperation agreement
between Microsoft Arabia and TVTC. (Dkt. No. 20-9 at 3.) The
operation and marketing agreement set forth TVTC's
obligation to manage certificate training centers and
Plaintiff's obligations to provide TVTC with certificate
tests, up-to-date software, and other marketing and
logistical support. (See id. at 3-5.)
February 2014, Plaintiff presented TVTC with “free MOS
vouchers” Plaintiff obtained through Certiport. (Dkt.
No. 20 at 7.) The vouchers were used for examinations held
during an education exhibition, and many applicants failed.
(See Dkt. No. 20-10 at 3.) TVTC was dissatisfied by
the low pass rate, noted that the certification program's
launch had been significantly delayed due to “the
non-availability of the product, ” and identified
several other issues with Plaintiff's handling of the
launch. (Dkt. No. 20-10 at 3-4.) TVTC requested that
Plaintiff conduct trainings on a newer version of Microsoft
Office, provide additional instructional content, secure
effective training tests, and provide TVTC with launch and
marketing plans within 10 business days. (See id. at
March 2, 2014, Al Falak asked Plaintiff to confirm its
outstanding balance. (See Dkt. Nos. 20 at 8, 20-11
at 10.) Plaintiff disputed the balance because it had been
told that the certification tests were not ready.
(See Dkt. No. 20-11 at 8-9.) In September 2014,
Plaintiff conditionally confirmed its outstanding balance
with Al Falak, stating that it was subject to receiving its
order “with a validity date not less than 12 months
from the date of receiving . . . .” (Dkt. Nos. 20 at 8,
20-12 at 1.)
December 2014, Microsoft Deutschland GmbH held a call with
Plaintiff and Certiport. (See Dkt. Nos. 20 at 8-9,
20-13.) The parties agreed that “the relaunch of the
Arabic exams” would occur on December 18, 2014, that
the “CIC exam” would be launched mid-February,
that Plaintiff was in the process of “localizing the
practice tests, ” and that “[n]o stakeholder
feels there are pending risks to our deployment / launch
date.” (See Dkt. No. 20-13 at 3-4.) The email
was the “official sign-off on the remaining items prior
to the launch with TVTC.” (Id. at 3.)
February 2015, Certiport emailed Plaintiff “to confirm
that [Plaintiff] is ensured access to the VL portal 1000 MOS
site licenses that includes 500, 000 MOS exams available for
use for TVTC . . . . [T]hese site licenses were available in
the portal since the 26th of June
2013.” (Dkt. Nos. 20 at 9, 20-14 at 5.) Certiport
attached a description of the order which listed TVTC as the
customer and an order date of June 26, 2013. (See
Dkt. No. 20-14 at 5.) Plaintiff asserts that the order date