CYBERsitter, LLC v. The People's Republic of China et al

Filing 4

EX PARTE APPLICATION for Issuance of Letters Rogatory for to Effect Service of Process (and Notice of Ex Parte Application) filed by Plaintiff CYBERsitter, LLC. (Attachments: # 1 Letter Rogatory, # 2 Proposed Order Granting Plaintiff's Ex Parte Application for Letters Rogatory)(Fayer, Gregory)

1 2 3 4 5 6 7 8 9 10
GIPSON HOFFMAN & PANCIONE

GIPSON HOFFMAN & PANCIONE A Professional Corporation GREGORY A. FAYER (State Bar No. 232303) [e-mail] ELLIOT B. GIPSON (State Bar No. 234020) [e-mail] 1901 Avenue of the Stars, Suite 1100 Los Angeles, California 90067-6002 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff CYBERsitter, LLC d/b/a Solid Oak Software UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION CYBERsitter, LLC, a California limited CASE NO. CV10-0038 GAF (SHx) liability company, d/b/a Solid Oak Software, Plaintiff, v. The People's Republic of China, a foreign state; Zhengzhou Jinhui Computer System Engineering Ltd., a Chinese corporation; Beijing Dazheng Human Language Technology Academy Ltd., a Chinese corporation; Sony Corporation, a Japanese corporation; Lenovo Group Limited, a Chinese corporation; Toshiba Corporation, a Japanese corporation; ACER Incorporated, a Taiwanese corporation; ASUSTeK Computer Inc., a Taiwanese corporation; BenQ Corporation, a Taiwanese corporation; Haier Group Corporation, a Chinese corporation; and DOES 1-10, inclusive, Defendants. NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION FOR LETTERS ROGATORY TO EFFECT SERVICE OF PROCESS Judge: Ctrm: Hearing Date: Hearing Time: Hon. Gary A. Feess 740 None scheduled None scheduled

11
A PROFESSIONAL CORPORATION

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Discovery Cutoff: None set Pretrial Conference: None set Trial Date: None set [Filed concurrently with: Memorandum of Points and Authorities; Declaration of Gregory A. Fayer; Letters Rogatory; [Proposed] Order]

NOTICE OF EX PARTE APPLICATION FOR LETTERS ROGATORY TO EFFECT SERVICE OF PROCESS
04444\00001\122193.1

1 2 3 4 5 6 7 8 9 10
GIPSON HOFFMAN & PANCIONE

TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that plaintiff CYBERsitter, LLC d/b/a Solid Oak Software ("Plaintiff") will and hereby does apply ex parte, in accordance with Rule 719 of the Central District Local Rules, to the Honorable Gary A. Feess, in courtroom 740 of the United States District Court for the Central District of California, located at 255 East Temple Street, Los Angeles, California 90012, requesting the issuance of Letters Rogatory to effect service of process in this action upon defendants ACER Incorporated, ASUSTeK Computer Inc. and BenQ Corporation (collectively, "Taiwanese Defendants"). There is good cause for granting this ex parte application. Defendants ACER Incorporated, ASUSTeK Computer Inc. and BenQ Corporation are Taiwanese corporations. Taiwan is not a signatory to the Hague Service Convention. Accordingly, service of process by means of the Hague Convention is not possible for the Taiwanese Defendants. The Taiwanese Defendants have either declined or failed to respond to Plaintiff's requests to arrange for voluntary service. On January 14, 2010, counsel for Plaintiff sent letters to the each of the Taiwanese Defendants (and to two of their U.S. affiliates) requesting arrangement for voluntary service of process. See Declaration of Gregory A. Fayer ("Fayer Decl."), ¶ 2, Exhibits A-E. On January 20, 2010, Plaintiff received an email from in-house counsel at BenQ's U.S. affiliate attaching a letter (dated January 18, 2010), stating that it would not accept service on behalf of BenQ Corporation. Id. ¶ 8, Exhibit F. As of this date, none of the other Taiwanese Defendants or their affiliates has responded to Plaintiff's request. Id. ¶ 9. The process for service by means of Letters Rogatory in Taiwan often takes four to six months or longer to complete. Accordingly, in order avoid undue delay and to facilitate a timely resolution of this dispute, Plaintiff respectfully requests that the Court issue Letters Rogatory requesting the Taiwan Taipei District Court to order 1 NOTICE OF EX PARTE APPLICATION FOR LETTERS ROGATORY TO EFFECT SERVICE OF PROCESS
04444\00001\122193.1

11
A PROFESSIONAL CORPORATION

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10
GIPSON HOFFMAN & PANCIONE

service of process on the Taiwanese Defendants by a method recognized and prescribed under Taiwanese law. Plaintiff's counsel made a good faith effort to give notice to the Taiwanese Defendants of the substance and timing of this application in accordance with Local Rule 7-19.1. On the afternoon of Wednesday, January 20, 2010, Plaintiff's counsel sent letters by email, facsimile or both (and also by first class mail) to the each of the Taiwanese Defendants and to two of their U.S. affiliates, notifying them of Plaintiff's intent to bring this ex parte application on Friday, January 22, 2010, and requesting that they inform Plaintiff's counsel whether or not they intend to oppose the application. Id. ¶ 13. Fayer Decl. ¶ 13, Exhibits G-K. Since none of the Taiwanese Defendants has yet been served, none has counsel of record to which to give notice. Accordingly, Plaintiff's counsel contacted them in the most expedient manner reasonably available. Id. None of the Taiwanese Defendants responded to the notice letter (except for a reference to the notice letter in the above-referenced email from in-house counsel at BenQ's U.S. affiliate). Id. ¶ 13, Exhibit F. It is thus unclear whether the Taiwanese Defendants oppose the application, and, if so, what the basis of their opposition might be. Id. ¶ 13. In addition, it is in the interest of justice to allow this ex parte application to be heard without notice, pursuant to Local Rule 7-19.2, with respect to the defendants other than the Taiwanese Defendants. The interest of justice is clearly served by expeditiously arranging for service of the Taiwanese Defendants in this action. All of the non-Taiwanese defendants are Japanese or Chinese entities. None has yet been served and none has counsel of record. Taiwanese Defendants. Id. ¶ 19. Furthermore, none will be prejudiced by the issuance of Letters Rogatory to assist in the service of process of the Indeed, it is doubtful that any of the non-Taiwanese defendants could show standing to challenge the issuance of Letters Rogatory for service of process on the Taiwanese Defendants. Absent counsel of record to contact 2 NOTICE OF EX PARTE APPLICATION FOR LETTERS ROGATORY TO EFFECT SERVICE OF PROCESS
04444\00001\122193.1

11
A PROFESSIONAL CORPORATION

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10
GIPSON HOFFMAN & PANCIONE

for notice purposes, it would be both costly and futile to attempt to contact these overseas defendants regarding the instant ex parte application. See id. This ex parte application is based on this Notice; the accompanying Memorandum of Points and Authorities; the accompanying Declaration of Gregory A. Fayer; the accompanying Letters Rogatory for the Court's signature; the pleadings and papers on file in this action; and on such other evidence as may be submitted to the Court and such oral argument and other matters as the Court may consider. A proposed order accompanies this application. DATED: January 22, 2010 GIPSON HOFFMAN & PANCIONE A Professional Corporation GREGORY A. FAYER ELLIOT B. GIPSON

11
A PROFESSIONAL CORPORATION

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/s/ Gregory A. Fayer GREGORY A. FAYER Attorneys for Plaintiff CYBERsitter, LLC d/b/a Solid Oak Software

By

3 NOTICE OF EX PARTE APPLICATION FOR LETTERS ROGATORY TO EFFECT SERVICE OF PROCESS
04444\00001\122193.1