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Samy Gharb v. Rockwell Automation et al

November 4, 2011

SAMY GHARB, PLAINTIFF,
v.
ROCKWELL AUTOMATION ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court are Defendants' motions [14, 19, 28, 37, 51, 65, 70, 78, 86, 92, 96, 103, 106, 110, 114, 118, 132, 135, 144, 154, 185] to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6), and 28 U.S.C. § 1498, and Plaintiff's motion for summary judgment [205], motion for summary of infringement [207], and motion for entry of default judgment [210]. For the reasons below, Defendants' motions are granted and Plaintiff's motions are denied.

I. Background*fn1

On March 22, 2011, Plaintiff filed a patent infringement claim against Rockwell Automation and sixty-one additional defendants claiming infringement on his patent, U.S. Patent 6,552,654 ("'654"). The '654 patent was approved in 2003 and titled "Security system with a mobile telephone." The patent expired on April 22, 2007 for failure to pay maintenance fees. Plaintiff's ninety page complaint alleges that Rockwell Automation "has sold [Plaintiff's invention] since 2001 as products with PLC Programmable Logic Controller MICROLOGIX and GSM mobile phone to all the mentioned costumers[sic], over the United States."*fn2 Compl. at 1. The complaint asks for a staggering $1,000,000,000.00 in damages. Plaintiff's complaint contains no specific counts, allegations or causes of action against any of the listed Defendants.

The Court mailed Plaintiff a summons and in mid-April, 2010, Plaintiff personally mailed copies of the summons and complaint to all of the Defendants. The returns of service indicated that service was performed on April 14, 2010 by the Plaintiff, Samy Gharb, who left "copies thereof at the defendant's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein." No copy of the returns of service identified any person with whom the summons and complaint were left.

All sixty-two Defendants now argue that Plaintiff's complaint should be dismissed under Rules 12(b)(5) and 12(b)(6). The Federal Defendants also argue that the complaint should be dismissed for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1498.

II. Analysis

The Court notes that Gharb failed to respond to any of the Defendants' contentions in his response brief. He also did not attempt to properly re-serve Defendants. In their reply briefs, Defendants argue that Gharb has, accordingly, waived any argument in response the Defendants' motions. Green v. Charter One Bank, N.A., 640 F.Supp.2d 998 (N.D. Ill. 2009) (dismissing count from complaint where the plaintiff did not address the defendant's argument in its opposition, reasoning that "failure to respond permits an inference of acquiescence and 'acquiescence operates as a waiver.'" (quoting Wojtas v. Capital Guardian Trust, Co., 477 F.3d 924, 929 (7th Cir. 2007)). Although the Court agrees that Plaintiff has failed to respond to any of Defendant's arguments in his response, because Plaintiff is pro se, the Court will address Defendants' motions to dismiss on the merits.

A. Service of Process

Defendants argue that the Court should dismiss Plaintiff's complaint for insufficient service of process under to Rule 12(b)(5) because Gharb failed to properly serve the corporate Defendants pursuant to Rule 4(h) and the individual Defendants pursuant to Rule 4(e), and personally served Defendants in violation of Rule 4(c)(2). See Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d 297, 301 (7th Cir. 1991) (recognizing the necessity of valid service of process and noting that actual notice of litigation does not satisfy the requirements of Rule 4).

1. Corporate Defendants

Federal Rule of Civil Procedure 4(h) instructs that a corporation may be served either by delivering a copy of the summons and the complaint to an officer, director, or managing agent of the business or in a manner permitted by the state where the corporation is located. Fed. R. Civ. P. 4(h). Defendants argue that Gharb failed to effectuate service via either permissible method and therefore the court lacks personal jurisdiction. See Fifth Third Bank v. Malone, 2010 WL 183344, *1 (N.D. Ill. Jan. 20, 2010) (citing United States v. Ligas, 549 F.3d 497, 500 (7th Cir. 2010)).

Gharb attempted to serve process by mailing the summons and the complaint to each corporate Defendant without directing it to a specific person. There are several fatal errors in Gharb's chosen method of service. First, mailing does not constitute "delivery." See Miles v. WTMX Radio Network, 2002 WL 1359398, *1, 3 (N.D. Ill. June 20, 2002) (holding that where plaintiff attempted to serve process on two corporations by placing each summons and complaint in the mail and addressing them to the corporations generally the service does not satisfy Rule 4); Geraci v. Everhart, 2009 WL 3446193, *3 (E.D. Wis. Oct. 23, 2009) (finding that service of process by mail is inappropriate under Wisconsin law); Smith v. Vericrest Financial, Inc., 2010 WL 5373880, *1 (N.D. Ill. Dec. 14, 2010) (dismissing pro se plaintiff's complaint where plaintiff "personally sent the complaint by mail."); see also 2011 Cal. C.C.P. § 415.10; Ga. Code. Ann. § 9-11-4(e); Ia. R. Civ. P. 1.305(6); 735 ILCS 5/2-203.1; Ohio R. Civ. P. 4.1; R.I. Super. R. Civ. P. 4(e); Wis. Stat.§ 801.11(5)(a). Second, Gharb failed to direct service to an officer, director or managing agent, also in violation of Rule 4. See Miles 2002 WL 1359398 at *4. Finally, Gharb personally sent the mailed copies to the corporate defendants, in violation of Rule 4(c)(2), which instructs that "any person ...


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