Intel Corporation et al v. Commonwealth Scientific and Industrial Research Organisation

MOTION to Dismiss Plaintiffs' Complaint Pursuant to Fed. R. 12

N.D. Cal.May 31, 2005

1 TOWNSEND AN TOWNSEND AN CREW LLP Daniel J. Furnss (State Bar No. 73531) 2 Byron W. Cooper (State Bar No. 166578) Gary H. Ritchey (State Bar No. 136209) 3 Gregory S. Bishop (State Bar No. 184680) Thomas F. Fitzpatrck (State Bar No. 193565) 4 379 Lytton Avenue Palo Alto, Californa 94301 5 Telephone: (650) 326-2400 Facsimile: (650) 326-2422 6 EmaIl: difurnisscqtownsend.com EmaIl: bwc~townsend.com 7 Email: ghrtcheycqtownsend.com Email: gsbishopcqtownsend.com 8 EmaIl: tfftzpatrickcqtownsend.com 9 Attorneys for Defendant COMMONWEALTH SCIENTIFIC 10 AND INUSTRIL RESEARCH . ORGANISATION 11 12 13 14 15 16 INTEL CORPORATION AN DELL, INC., UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRACISCO DIVISION Case No. C05 01886 MJJ 17 18 Plaintiff, COMMONWEAL TH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FEDERA RULE OF CIVIL PROCEDURE 12(b)(4) AND (b)(5); MEMORADUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF v. 19 COMMONWEALTH SCIENTIFIC ANINUSTRI RESEARCH 20 ORGANSATION, 21 22 23 24 25 26 27 28 Defendant. Date: July 12,2005 Time: 9:30 a.m. Courtroom: 11 Judge: Hon. Martin J. Jenkis COMMONWEALTH SCllNTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURUANT TO FEDERAL RULE OF CIVIL PROCEDURE I2(b)(4) AND (b)(5) Case No. C05 01886 MJJ Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page1 of 13 1 TO PLAINTIFFS INTEL CORPORATION AN DELL, INC. AN THEIR ATTORNYS OF 2 RECORD: 3 NOTICE IS HEREBY GIVEN that on July 12, 2005, at 9:30 a.m. or as soon thereafter as this 4 may be heard, in the Couroom of the Honorable Marin J. Jenkns, located at 450 Golden. Gate 5 Avenue, Courtroom 11, San Francisco, California 94102, Defendant Commonwealth Scientific and 6 Industral Research Organisation ("CSIRO"), by and through its attorneys, wil and hereby move for 7 an order to dismiss the action pursuant to Rule 12(b)(4) and (b)(5) of the Federal Rules of Civil 8 Procedure because of defective service. 9 This motion is based upon the Notice of Motion, the Memorandum of Points and Authorities, 10 the Declaration of Gary H. Ritchey, all other pleadings and papers submitted in this action, and any 11 arguments of counsel and any other evidence which may be presented at or before the hearng on these 12 motions. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMMONWEALTH SCllNTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURUANT TO FEDERAL RULE OF CIVIL PROCEDUR 12(b)(4) AND (b)(5)Case No. C05 01886 MJJ - 1 - Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page2 of 13 1 2 3 i. 4 II. 5 6 7 III. 8 9 10 11 12 IV. 13 14 15 V. 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page INTRODUCTION ........................................................................................................................... 1 STATEMENT OF FACTS.............................................................................................................. 1 A. Attempted Service Of Process.............................. ............................. ................... ............... 1 B. CSIRO Is A Governent Agency Or Instrumentality........... ............. ....... .........................2 LEGAL STANAR .....................................................................................................................3 A. Proper, Formal Service Of Process Is A Bedrock Principle................................................ 3 B. Federal Rule Of Civil Procedure 4 ............ ........................ ..................... ..................... ........3 C. Foreign Sovereign Imunties Act...................................................................................... 3 D. Federal Rule Of Civil Procedure 12....................................................................................4 ARGUMENT ...................................................................................................................................5 A. CSIRO Is An Agency Of The Australian Governent And Thus The FSIA Applies ....................................................................................................................... 5 B. Service Was Defective Under The Governing Law............................................................ 6 CONCLUSION ...............................................................................................................................7 COMMONWEALTH SCllNTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDUR 12(b)(4) AND (b)(5) .Case No. C05 01886 MJJ - i - Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page3 of 13 1 TABLE OF AUTHORITIES2 Page 3 Cases 4 Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004) .............................................................................................................. 3 5 Corporacion Mexicana de Servicios Maritmos, S.A. de C. V. v. MIT Respect, 6 89 F.3d 650 (9th Cir. 1996) ................................................................................................................ 6 7 EIE Guam Corp v. Long Term Credit Bank of Japan, 322 F.3d 635 (9th Cir. 2003) .......................................................................................................... 5, 6 8 Murphy Brothers, Inc. v. Mitchell Pipe Stringing, Inc., 9 526 U.S. 344, 143 L. Ed. 2d 448, 119 S. Ct. 1322 (1999) ................................................................. 3 10 Patrickson v. Dole Food Co., 251 F .3d" 795 (9th Cir. 2001)....................................................................... .......... ........... .................. 5 11 Trofi v. Qantas Ainvays Limited, 12 1992 U.S. Dist. LEXIS 10183,23 Fed. R Servo 3d 1315 (D. RI. 1992) .......................................... 6 13 Statutes 14 28 U.S.C. § 1332( c) ..... ........... .................... ................................... ..... .................... ...................... ........... 5 15 28 U.S.C. § 1332( d).............. ........................................... ........................................................................ 5 16 28 U.S.C. § 1602 ......... ........................................................................................ ............ .................... 3, 5 17 28 U.S.C. § 1603( a) ........... ................................ .............. .......................... .............................................. 5 18 28 U.S.C. § 1603(b)...................................................... .... ................................................... .................... 5 19 28 U.S.C. § 1608 ............................................................................................................................. 1,3,6 20 28 U.S.C. § 1608(b)...... ................. ................ ........ ........................... .............. ............ ............... ...... 4, 6, 7 21 28 U.S.C. § 1608(d)..................................................................................................................... 1,4, 7, 8 22 28 U.S.C. § 220 1 (a) .......................~......................................................................................................... 1 23 Other Authorities 24 Science and Industry Research Act of 1949 of the Commonwealth of Australia................................... 5 25 Rules 26 Rule 12 of the Federal Rules of CivIl Procedure....... ..... ......................................................................... 4 27 Rule 12(b)( 4) ofthe Federal Rules of Civil Procedure ........................................................................... 4 28 Rule 12(b)( 5) of the Federal Rules of Civil Procedure.. ................................................ .......... ............... 4 COMMONWEALTH SCllNTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(4) AND (b)(5)Case No. C05 01886 MJJ - ii- Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page4 of 13 1 TABLE OF AUTHORITIES (con't)2 Page 3 Rule 4 of the Federal Rules of Civil Procedure................................................... ............. ............... 1, 3, 7 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMMONWEALTH SCIENTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(4) AND (b)(5)Case No. C05 01886 MJJ - iii- Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page5 of 13 1 I. INTRODUCTION 2 Intel Corporation and Dell, Inc. ("plaintiffs") filed a Complaint for Declaratory Judgment 3 ("Complaint") against the Commonwealth Scientific and Industral Organsation ("CSIRO") on 4 May 9,2005. In attempting to serve CSIRO, plaintiffs acted as ifCSIRO were an ordinar foreign 5 corporation, and demanded an answer to the Complaint within twenty days after service. However, 6 CSIRO is not an ordinary corporation -- it is the national science agency of the Australian 7 governent. As such, service of process is governed by the Foreign Sovereign Imunties Act 8 ("FSIA"). Plaintiffs did not serve CSIRO properly under the FSIA, and the Sumons itselfis 9 defective in commanding an answer in twenty days when the FSIA explicitly provides for sixty days 10 to respond. 11 The most cursory due diligence would have revealed that CSIRO was an instrentality of the 12 governent of Australia and indicated the proper procedure for service of process and the proper time 13 for response. In fact, Federal Rule of Civil Procedure 4(j) directly points a pary to 28 U.S.C. § 1608. 14 It is simply inexcusable for plaintiffs to have ignored the status of CSIRO as a governent 15 instrumentality and attempted to force it into cour on an expedited basis. Accordingly, the Cour 16 should grant CSIRO's motion to dismiss.1 1 7 II. 18 STATEMENT OF FACTS A. Attempted Service Of Process 19 On May 10,2005, plaintiffs attempted service by leaving copies of the Complaint and 20 Sumons with Ms. Anemaree Hind in CSIRO's Canberra offce, and with Ms. Pam Trajkovska in 21 CSIRO's Melboure offce. Ms. Hind is the personal assistant to the Chief Executive ofCSIRO, Dr. 22 Geoff Garrett. Ms. Trajkovska's is an administrative assistant with the office of CSIRO's General 23 24 25 26 27 28 1 If and when plaintiffs properly serve CSIRO, and according to the sixty day timetable to respond provided by 28 U.S.C. § 1608( d), CSIRO wil fuher move to dismiss due to the lack of subject matter jursdiction under the Declaratory Relief Act. 28 U.S.C. § 2201(a). CSIRO has never made a threat of litigation against either plaintiff, and indeed, has never had any communcations at all with Intel concerning the patent-in-suit. There is no subject matter jursdiction under Aricle III since neither plaintiff can meet the test of showing an objectively reasonable apprehension of imminent suit. Indeed, plaintiffs' Complaint is so far outside the jursdictional line that it should be deemed frvolous. COMMONWEALTH SCIENTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURUANT TO FEDERAL RULE OF CrvIL PROCEDUR 12(b)(4) AND (b)(5)Case No. C05 01886 MJJ - 1 - Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page6 of 13 1 Counsel, Mr. Terry Healy. In addition, a copy òfthe Complaint and Summons was posted by United 2 States Express Mail to "Dr. Geoff Garrett, CEO" at CSIRO. 3 The Summons received by CSIRO in each case states that an answer is due 20 days after 4 service. (Declaration of Gar H. Ritchey ("Ritchey Decl. "), Exh. A.) 5 B. CSIRO Is A Government Agency Or Instrumentality 6 Australia is a democratic, federal-state system recognizing the British monarch as sovereign. 7 Australia's chief of state is Queen of Australia ELIZABETH II, who is represented by a Governor- 8 General. The head of governent is the Prime Minister. There are no direct elections as to the 9 executive governental positions. The monarch is hereditar; the Governor-General is appointed by 10 the monarch on the recommendation of the Prime Minister; and following legislative elections, the 11 leader of the majority pary or leader of a majority coalition is sworn in as Prime Minister by the 12 Governor-General. 13 CSIRO was established by the Science and Industr Research Act of 1949 ofthe 14 Commonwealth of Australia (the "Act"). (Ritchey Decl., Exh. B.) The Minister appointed by the 15 Governor-General to administer the Act is curently the Minister for Education, Science and Training 16 -- The Hon. Dr. Brendan Nelson MP (the "Minister"). (Id., Exh. C at 12.) 17 CSIRO is the national science agency of the Australian governent. (Id. at 1.) CSIRO's 18 charter is to conduct research to assist Australian industr, further the interests of the Australian 19 community, contribute to the achievement of Australian national interests, and any other purpose 20 determined by the Minister. (Id., Exh. B at 3.) The Chief Executive of CSIRO is appointed by the 21 Governor-General (id. at 7), and the fuctions of the Chief Executive are constrained by and subject to 22 the approval of the Minister in numerous respects. (See, e.g., id. at 5, 7, 8, 9, 12,23.) The Board of 23 the Organsation is appointed by the Governor-General (id. at 13) and operates under the direction of 24 the Minister. (Id. at 12, 14.) 25 Money is appropriated by Parliament to fud CSIRO, and paid according to the determinations 26 of the Minister of Finance. (Id. at 22.) The majority of CSIRO's fuding is provided by the 27 governent. (Id., Exh. Cat 4.) CSIRO's budget as of June 2004 was approximately $900 million, of 28 which some $568 milion was from Parliamentary appropriation, and some $320 millon from other COMMONWEALTH SCIENTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FEDERAL RULE OF CrvIL PROCEDUR 12(b)(4) AND (b)(5)Case No. C05 01886 MJJ - 2- Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page7 of 13 1 sources, including the Australian private sector and Australian Federal and State governents. (Id.) 2 CSIRO is not subject to taxation under any law ofthe Commonwealth or of a State or Terrtory. (Id., 3 Exh. B at 23.) 4 III. LEGAL STANDAR 5 A. Proper, Formal Service Of Process Is A Bedrock Principle 6 As held by the Supreme Cour: "Service of process, under longstanding tradition in our system 7 of justice, is fudamental to any procedural imposition on a named defendant." Murphy Brothers, Inc. 8 v. Mitchell Pipe Stringing, Inc., 526 U.S. 344, 350, 143 L. Ed. 2d 448, 119 S. Ct. 1322 (1999). In 9 Murphy Brothers, the Supreme Cour addressed the question of whether the time to remove a state 10 court action begins from infonÌal receipt ofthe complaint or from formal service of process. In 11 answering that question, the Supreme Court found as a "bedrock principle" that "(a)n individual or 12 entity named as a defendant is not obligated to engage in litigation unless notified of the action, and 13 brought under a cour's authority, by formal process." Id. at 347, emphasis added. 14 Once service is challenged, plaintiffs bear the burden of establishing that service was valid. 15 . Brockmeyer v. May, 383 F.3d 798,801 (9th Cir. 2004). 16 B. Federal Rule Of Civil Procedure 4 17 Sectionj(l) of Federal Rule of Civil Procedure 4 provides the proper procedure for service 18 upon foreign governents: "Service upon a foreign state or political subdivision, agency, or 19 instrentality thereof shall be effected pursuant to 28 U.S.c. § 1608." 20 21 22 23 24 25 26 27 28 C. Foreign Sovereign Immunities Act The Foreign Sovereign Imunties Act (FSIA) governs the amenability of foreign sovereigns and their agencies to suit in United States cours. See 28 U.S.C. § 1602 et seq. Among other things, the FSIA was intended to provide a statutory procedure for service of process on a foreign state. H.R. Rep. No. 94-1487, 94th Congo 2d Sess., 8 (1976). To that end, 28 U.S.c. § 1608 provides a specific, clear procedure for the service upon an agency or instruentality of a foreign state: (b) Service in the Cours of the United States and ofthe States shall be made upon an agency or instrentality of a foreign state: (1) by delivery of a copy of the summons and complaint in accordance with any special arangement for service between the plaintiff and the agency or instrentality; or COMMONWALTH SCllNTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(4) AND (b)(5)Case No. C05 01886 MJJ - 3 - Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page8 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2) if no special arrangement exists, by delivery of a copy of the sumons and complaint either to an offcer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States; or in accordance with an applicable international convention or service of judicial documents; or (3) if service canot be made under paragraphs (1) or (2) and if reasonably calculated to give actual notice, by delivery of a copy of the sUIons and complaint, together with a translation of each into the offcial language of the foreign state- (A) as directed by an authority of the foreign state or political subdivision in response to a letter rogatory or request or (B) by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the cour to the agency or instruentality to be served, or (C) as directed by order ofthe cour consistent with the law of the place where service is to be made.... 28 U.S.c. § 1608(b). The FSIA also explicitly provides that an agency or instrentality of a foreign state shall have sixty days after service to serve an answer or other responsive pleading: (d) In any action brought in a cour of the United States or of a State, a foreign state, a political subdivision thereof, or an agency or instrentality of a foreign state shall serve an answer or other responsive pleading to the complaint within sixty days after service has been made under this section. 28 U.S.c. §1608(d). D. Federal Rule Of Civil Procedure 12 r-ederal Rule of Civil Procedure 12(b)(4) and (5) provides for motions to dismiss an action where there is insufficiency of process and insufficiency of service of process. Absent proper service of process, as provided by statute, there is no personal jursdiction. COMMONWEALTH SCllNTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDUR 12(b)(4) AND (b)(5)Case No. C05 01886 MJJ - 4- Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page9 of 13 1 iv. 2 ARGUMENT CSIRO Is An Agency Of The Australian Government And Thus The FSIA Applies The FSIA applies to lawsuits against "foreign states." 28 U.S.C. § 1602. The statute defines A. 3 4 5 6 7 8 9 10 11 12 "foreign state" as including an "agency or instrmentality of a foreign state." 28 U.S.c. § 1603(a). Subsection (b) of § 1603 defines an "agency or instrentality of a foreign state" as any entity "(1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a , foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United Stated as defined in section 1332( c) and (d) of tl.is title, nor created under the laws of any third country. " The Ninth Circuit has explained: . . . courts consider whether the entity engages in a public activity on 13 behalf of the foreign governent. In making this determination, cours examine the circumstances surounding the entity's creation, the purose 14 of its activities, its independence from the governent, the level of governent financial support, its employment policies, and its 15 obligations and privIleges under state law. 16 EIE Guam Corp v. Long Term Credit Bank of Japan, 322 F.3d 635,640 (9th Cir. 2003), quoting 17 Patrickson v. Dole Food Co., 251 F.3d 795,807 (9th Cir. 2001). 18 Here, CSIRO satisfies each of the requirements of the EIE Guam test. With regard to the 19 circumstances surounding the entity's creation and the purose of its activities, CSIRO was explicitly 20 created by the Australian governent by the enactment of legislation for that specific purose -- the 21 Science and Industry Research Act of 1949.2 (Ritchey Decl., Exh. B.) 22 The Act specifically provides that the fuctions of CSIRO are: 23 (a) to car out scientific research for any ofthe following puroses: 24 (i) assisting Australian industry; 25 (ii) fuhering the interest ofthe Australian communty; 26 27 2 In fact, CSIRO traces its history to other Australian governent organzations dated back to WWI. 28 COMMONWEALTH SCIENTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURUANT TO FEDERAL RULE OF CIVIL PROCEDUR 12(b)(4) AND (b)(5)Case No. C05 01886 MJJ . - 5- Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page10 of 13 1 (iii) contrbuting to the achievement of Australian national objectives or the 2 performance of Australian national objectives of the performance of the' 3 national and international responsibilities of the Commonwealth; 4 (iv) any other purpose determined by the Minister. 5 Id. at 3. 6 CSIRO reports dire.ctly to the Minister. (Ritchey Decl., Exh. B at 12.) As shown by the terms 7 of the Act, CSIRO operates under governent direction and control. (Id.) The lion's share of its 8 operating budget comes from Parliamentary appropriation. (Id., Exh. Cat 4.) It is immune from 9 taxation. (Id., Exh. B at 23.) In light ofthese facts, CSIRO's engagement in some commercial 10 concerns among its research fuctions does not detract from its governental status. See EIE, 322 11 F.3d at 641; Corporacion Mexicana de Servicios Maritimos, S.A. de C. V. v. MIT Respect, 89 F.3d 650, 12 654 (9th Cir. 1996) (holding that a subsidiary of a Mexican agency created by the Mexican 13 Constitution that owned and exploited Mexico's petroleum resources was an organ of Mexico). 14 Similarly, Qantas Airways Limited, which is owned by the Australian governent, has been found to 15 be a governent agency or instrentality. Trofi v. Qantas Ainvays Limited, 1992 U.S. Dist. LEXIS 16 10183,23 Fed. R Servo 3d 1315 (D. RI. 1992) (recommending vacating default judgment where 17 Qantas Airways was not served in conformity with the FSIA.)3 18 CSIRO clearly meets the FSIA's definition of an agency or instruentality of a foreign state 19 and thus the service provisions of § 1608 apply. 20 B. Service Was Defective Under The Governing Law 21 The requirements for service of the Complaint are found in 28 U.S.C. § 1608(b). A review of 22 the provisions of that section shows that service was not properly accomplished. 23 Section 1608(b )(1) provides for delivery of a copy of the sumons and complaint in accord 24 with any special arangement for service between the plaintiff and the agency or instrentality. 25 Here, no such special arrangements exist. 26 27 3 A copy of this case is provided as Exhibit D to the Ritchey Declaration for the Cour's convenience. 28 COMMONWEALTH SCllNTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDUR 12(b)(4) AND (b)(5)Case No. C05 01886 MJJ - 6 - Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page11 of 13 1 Section 1608(b)(2) provides for delivery ofa copy of the sumons and complaint to an officer 2 or agent in the United States, or in accordance with an applicable international convention on service 3 of judicial documents. There was no service in the United States, nor is CSIRO shown to have any 4 authorized agents to accept service in the United States. Furher, Australia is not a party to the Hague 5 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial 6 Matters. 7 Section 1608(b )(3) provides for three methods of service, all of which require special 8 authorization which was not obtained here. Section 1608(b)(3)(A) provides for service "as directed by 9 an authority of the foreign state or political subdivision in response to a letter rogatory or request. . . ." 1 0 Here, on information and belief, there was neither letter rogatory nor direction by an Australian 11 authority. Section 1608(b)(3)(B) provides for service "by any form of mail requiring a signed receipt, 12 to be addressed and dispatched by the clerk of the cour to the agency or instruentality to be 13 served..." Here, even assuming that a signed receipt was obtained, the attempted service by mail 14 was not "addressed and dispatched by the clerk ofthe cour" to the agency or instrumentality to be 15 served. On information and belief, it was addressed and dispatched by Jeffrey G. Randall ofSkadden, 16 Ars, Slate, Meagher & Flom LLP. Section 1608(b)(3)(C) provides for service "as directed by order 17 of the court consistent with the law of the place where service is to be made." To the best ofCSIRO's 18 information and belief, the Cour has issued no such order. 19 Furher, the Sumons is defective on its face. The Sumons states that an answer is due in 20 20 days. (Ritchey Decl., Exh. A.) But the FSIA explicitly provides that an agency or instrmentality of a 21 foreign state shall have sixty days after service to serve an answer or other responsive pleading. 28 22 U.S.c. § 1608( d). The prejudice to CSIRO in having to act within 20 days instead of 60 days to 23 safeguard its interests is obvious. 24 V. CONCLUSION 25 Here, sophisticated commercial entities and those who represent them either did not bother to 26 review, or intentionally ignored, the law governing service on an agency or instrentality of a 27 foreign governent. Even a cursory glance at Rule 4 would have revealed that with regard to foreign 28 governental entities, 28 U.S.c. § 1608 is the controlling law for service. See Rule 4(j)(1). Similarly, COMMONWEALTH SCIENTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(4) AND (b)(5)Case No. C05 01886 MJJ - 7 - Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page12 of 13 1 2 3 4 5 a quick glance at CSIRO's website would have revealed that CSIRO is the national science agency of the Australian governent, and thus an agency or instrentality of a foreign governent which must be served in accordance with section 1608(b). And section 1608( d) is quite plain that a responsive pleading is not required until 60 days after service, not 20 days as the plaintiffs' Sumons states. There is simply no excuse for such grossly defective service, and the action should therefore be 6 dismissed. 7 DATED: May 31,2005 8 9 10 11 12 13 14 15 16 17 18 19 60500353 vl 20 21 22 23 24 25 26 27 28 Respectfully submitted, By: Isl GaryH. Ritchey Daniel J. Furss Byron W. Cooper Gary H. Ritchey Gregory S. Bishop Thomas F. Fitzpatrick TOWNSEND AN TOWNSEND AN CREW LLP 379 Lyton Avenue Palo Alto, CA 94301 Telephone: (650) 326-2400 Facsimile: (650) 326-2422 Attorneys for Defendant COMMONWEALTH SCIENTIFIC AN INUSTRIL RESEARCH ORGANSATION COMMONWEALTH SCIENTIFIC AND INDUSTRIL RESEARCH ORGANISATION'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(4) AND (b)(5)Case No. C05 01886 MJJ - 8- Case3:05-cv-01886-MJJ Document4 Filed05/31/05 Page13 of 13