United States District Court, D. Massachusetts
For Zond, LLC, Plaintiff: David C. Radulescu, Michael D. Sadowitz, Robin M. Davis, Tigran Vardanian, LEAD ATTORNEYS, PRO HAC VICE, Radulescu LLP, New York, NY; David S. Godkin, Birnbaum & Godkin, LLP, Boston, MA.
For Fujitsu Semiconductor Limited, Fujitsu Semiconductor America, Inc., Defendants: Alexandra Capachietti, Merton E. Thompson, LEAD ATTORNEYS, Burns & Levinson LLP, Boston, MA; Jayson L. Cohen, Kyle W.K. Mooney, LEAD ATTORNEYS, PRO HAC VICE, Morrison & Foerster LLP, New York, NY.
For Taiwan Semiconductor Manufacturing Company Limited, TSMC North America Corp., Defendants: Anthony J. Fitzpatrick, LEAD ATTORNEY, Duane Morris LLP, Boston, MA; David C. Dotson, L. Norwood Jameson, LEAD ATTORNEYS, PRO HAC VICE, Duane Morris LLP, Atlanta, GA; Richard C. Kim, LEAD ATTORNEYS, PRO HAC VICE, Duane Morris LLP, San Diego, CA; Robert Terry Parker, LEAD ATTORNEY, PRO HAC VICE, Patricia R. Rich, Duane Morris LLP, Boston, MA.
MEMORANDUM AND ORDER
WILLIAM YOUNG, DISTRICT
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, Fujitsu Semiconductor America, Inc., TSMC, Ltd., and TSMC NA. Compl. ¶ ¶ 1-5, ECF No. 1.
Zond states that this action is related to another action between the same parties and also before this, Zond, Inc. v. Fujitsu Semiconductor Ltd. (" Zond I" ), Civil Action No. 13-1163 4-WGY. Compl. ¶ 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 and departed the office around 12:48 P.M. Id. ¶ 6.
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 ...