Zond, LLC v. Fujitsu Semiconductor Limited et al
Filing
62
Judge William G. Young: MEMORANDUM AND ORDER entered denying 20 MOTION to Dismiss the Complaint for Ineffective Service of Process filed by TSMC North America Corp., Taiwan Semiconductor Manufacturing Company Limited.(Gaudet, Jennifer)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ZOND, LLC
Plaintiff,
CIVIL ACTION
NO. 14-12438-WGY
v.
FUJITSU SEMICONDUCTOR LTD.,
FUJITSU SEMICONDUCTOR AMERICAN,
INC., TAIWAN SEMICONDUCTOR
MANUFACTURING COMPANY, LTD.,
AND TSMC·NORTH AMERICA CORP.,
Defendants.
YOUNG,
D.J.
October 10, 2014
MEMORANDUM AND ORDER
I.
INTRODUCTION
Two defendants, Taiwan Semiconductor Manufacturing Company
("TSMC,
Ltd.") and its North American subsidiary ("TSMC NA")
(collectively,
"TSMC"), move to dismiss the suit against them on
the ground that the plaintiff,
Zond, LLC ("Zond"), did not
properly serve either of them under federal or California law.
A.
Procedural History
The present action is a patent infringement suit filed June
9, 2014, by Zond against Fujitsu Semiconductor Limited,
Semiconductor America,
Fujitsu
Inc., TSMC, Ltd., and TSMC NA. Compl.
1-5, ECF No. 1.
1
~~
Zond states that this action is related to another action
between the same parties and also before this,
Fujitsu Semiconductor Ltd.
11634-WGY. Compl.
Zond,
Inc. v.
("Zond I"), Civil Action No. 13
~
9; see also Zond,
Inc. v. Fujitsu
Semiconductor Ltd.,
990 F. Supp.2d 50
(2014). That action has
been stayed by the Court pending the conclusion of proceedings
before the Patent Trial and Appeal Board. Zond I, Order Allowing
Mot. Stay, June 2, 2014, ECF No. 124. The present action
involves six different, but related, patents owned by Zond.
Compl.
~~
10-15; Opp'n Mot. Dismiss 2, ECF No.
30.
TSMC filed a Motion to Dismiss for Ineffective Service of
-Process on July 2, 2014. Mot. Dismiss, ECF No. 20.
B.
Alleged Facts
Around noon on June 11, 2014, Thomas Bowman
("Bowman"), a
process server hired by Zond, arrived at TSMC NA's offices in
San Jose, California to serve TSMC NA's registered agent Steven
Schulman. Decl. Thomas J. Bowman
~~
3-5, ECF No. 35. Bowman
spoke with Jennifer Poulson ("Poulson"), a receptionist at TSMC
NA's reception desk.
Id.
~
5. Poulson tried, but failed,
to
reach Mr. Schulman or "someone else" by telephone. Id. Bowman
subsequently left the papers with Poulson 1 -and departed the
office around 12:48 P.M. 2 Id. ~ 6.
1 The parties dispute whether Bowman told Poulson that he
was serving TSMC and that he left the papers with her because he
2
Poulson was a temporary employee placed by Appleone,
Inc.,
and has stated that she was not authorized to receive service.
Decl. Jennifer Poulson
~
4, ECF No. 21-2. She sat at a desk "in
the main lobby of the TSMC NA office complex which is composed
of two buildings connected by the main lobby." Reply Decl.
Jennifer Poulson
~
2, ECF No. 48-1. According to Poulson, more
than 400 employees work in the complex.
Id.
TSMC filed its motion to dismiss on July 2, 2014. Mot.
Dismiss. Zond repeated its efforts at service from July 11, 2014
through July 15, 2014, again failing to reach Mr. Schulman.
Decl. Christiaan Gonzalez
II.
~~
2, 7, 12, 15-17, ECF No. 32.
ANALYSIS
A.
Standard of Review
The plaintiff must make proper service on the defendant, or
the defendant must waive service, before the Court can exercise
pelieved her to be the person in charge. Compare Decl. Thomas
Bowman ~ 7, with Decl. Jennifer Poulson ~ 5, ECF No. 21-2; Reply
Decl. Jennifer Poulson ~ 6, ECF No. 48-1. It is not apparent to
the Court that such a statement is relevant where substitute
service, see below, is at issue.
2 Poulson states that Bowman "had waited approximately ten
minutes before leaving." Decl. Jennifer Poulson ~ 4; Reply Decl.
Jennifer Poulson ~ 5. The statements do not necessarily
conflict, since it is possible that Poulson attempted to reach
various TSMC employees from 12 P.M. to 12:38 P.M. and Bowman
then waited from 12:38 P.M. to 12:48 P.M. Though the Court must
accept Zond's position for this motion, the dispute is not
significant. In the absence of a "reasonable diligence"
requirement, see below, even a total interaction lasting only
ten minutes would not, by itself, indicate ineffective service.
3
its jurisdiction. Murphy Bros. v. Michetti Pipe Stringing,
526 U.S. 344, 350
Inc.,
(1999). Once the defendant has challenged
service, the burden is on the plaintiff to show proper service.
Vazquez-Robles v. CommoLoCo,
Inc.,
757 F.3d 1, 4 (lst Cir.
2014) .
B.
Governing Law
Service is governed by Federal Rule of Civil Procedure
("Rule")
4, which instructs plaintiffs to serve corporations in
the same manner as individuals, or in accordance with procedures
in Rule 4 (h) (1) (b). Fed. R. Civ. P. 4 (h). Service on individuals
under Rule 4 follows the state rule for either the state where
service was made, here California, or where the district court
si t s
i
'
Fed. R. Civ. P. 4 (e) (1). The parties do not dispute
application of California service rules. See Mem. Supp. Mot.
Dismiss 5, ECF 21; Opp'n Mot.
structured in the alternative,
Dismiss 8. Since Rule 4 is
if Zond can show that it complied
with anyone of the options available,
it has made proper
s e rv i ce ."
Massachusetts law also authorizes service under the rules
of the foreign state where service was made. Mass. R. Civ. P.
3
4 (e) •
4 The Court observes that it could retroactively approve
alternate service under Rule 4(f) nunc pro tunc. See Lewis v.
Dimeo Const. Co., Civil Action No. 14-10492, 2014 WL 4244330 (D.
Mass. Aug. 26, 2014) (Talwani, J.); Igloo Products Corp. v. Thai
We11tex Intern. No., Ltd., 379 F.Supp.2d 18, 20 (D. Mass. 2005)
. (Gorton, J.); Marks v. Alfa Grp. 615 F. Supp. 2d 375, 380 (E.D.
4
c.
Service Under Federal Law
Zond contends that it completed direct service of TSMC by
serving Poulson under Rule 4(h). Opp'n Mot.
Dismiss 11. Rule
4 (h) permits service on a corporation "by delivering a copy of
the summons and of the complaint to an officer, a managing or
general agent, or any other agent authorized by appointment or
by law to receive service of process.
u
Fed R. Civ.
P.
4(h).
Whether an individual is a suitable agent to receive service
"depends on a factual analysis of that person's authority within
the organization.
Technologies,
J. Moore,
. Practice
u
Direct Mail Specialists v. Eclat Computerized
Inc.,
840 F.2d 685,
J. Lucas, H. Fink & C.
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