Stack dismisses suit against Microsoft, allows plaintiff to amend Xbox 360 suit

Steve Korris Jul. 23, 2009, 4:27am


Xbox 360 video game system owner Jason Johnson can't sue Xbox maker Microsoft Corporation over scratches on his game disks because he didn't buy his Xbox, Madison County Circuit Judge Daniel Stack ruled at a June 30 hearing.

Stack dismissed a suit that lawyer Emily Johnson filed last year,
but he granted leave to amend the complaint.

The suit sought to recover the value of games the Xbox 360 ruined, plus $50,000 in punitive damages.

At the hearing Microsoft lawyer Robert Shultz estimated the value
of the games at $400 to $500.

Shultz said the complaint alleged that the Xbox was purchased in 2006 at a Circuit City store in Ferguson, Mo., but didn't allege that Jason Johnson bought it.

"The box was returned because of an unrelated error and it was replaced in September of '07," Shultz said.

He said the complaint alleged that defects in the optical disk drive manifested themselves and worsened.

Shultz said the complaint was devoid of any allegation that any misrepresentation or concealment was material to Jason Johnson.

"He is not alleged to have been a purchaser," Shultz said.

"He is not alleged to have received or reviewed any of the advertising material," he said.

Stack asked, "What if it were purchased by someone in his family as a gift?"

Shultz said, "Then they need to allege that and then we can test whether or not it constitutes a stated claim."

Emily Johnson said Xbox 360 was Microsoft's second generation gaming console.

She said it was important for Microsoft to market Xbox 360 prior to Sony and Nintendo marketing their second generation consoles.

"They were aware of the defect in the optical disk drive in this case and they still put the product to market to reap the economic benefit," she said.

She said that after the replacement arrived, Jason Johnson bought a Rock Band game for $180.

"Shortly after playing the game these disk errors would come up. Your game would stop," she said.

"Whatever progress you made had been lost and it would say disk unreadable and it would then instruct you to take the disk out of the system, clean it with a soft cloth and try again," she said.

"Never did it say it's possibly our machine scratching your disk," she said.

She said Jason Johnson called Microsoft and the company offered to replace the optical disk drive for $99.

"In addition they offered, if it was a Microsoft published game that had been scratched, they would replace that for only $20," she said.

"We suspect and we allege in our complaint that they were making a profit off this because it cost them actually much less when it's a game that they actually published, to copy it onto a disk and send it to you," she said.

"Our allegations allege that they were profiting off of the scratching of people's games," she said.

She said Microsoft didn't install a safety mechanism to keep the optical disk drive from scratching disks.

"From the moment the plaintiff puts the disk into the game device and it gouged the disk, at that moment the tort had occurred," she said.

Shultz said there had to be additional allegations as to how the Xbox was acquired and what the relationships were between the purchaser, the plaintiff and Microsoft.

Stack dismissed the complaint and granted leave to rewrite it.

"The request for punitive damages is stricken until such time as a petition is filed and a hearing held on whether or not you can plead a punitive damage count," Stack said.

He asked, "Do you understand that, Emily?"

Johnson said, "I do but I have an issue with that."

"But it's okay," she said. "We will file something."

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