Juniper Networks Inc v. Bahattab

MOTION TO AUTHORIZE SERVICE VIA EMAIL AND FACSIMILE, PURSUANT TO RULE 4

D.D.C.January 2, 2008

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUNIPER NETWORKS, INC., Plaintiff, v. ABDULLAH ALI BAHATTAB, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 1:07cv1771-PLF MOTION TO AUTHORIZE SERVICE Plaintiff, Juniper Networks, Inc. (“Juniper”), respectfully requests that this Court direct Juniper to serve the Complaint in this matter on defendant, Abdullah Ali Bahattab (“Dr. Bahattab”), via electronic mail (“e-mail”) and facsimile, pursuant to Rule 4(f)(3) of the Federal Rules of Civil Procedure. BACKGROUND Dr. Bahattab, a resident of Saudi Arabia and the alleged inventor and assignee of the U.S. Patent No. 6,816,457 (“‘457 patent”), sued Juniper for infringement of the ‘457 patent in the Dubai Court of First Instance, located in the United Arab Emirates. (See Exhibit 1 to Exhibit A,1 at 2.) Through his lawsuit in Dubai, Dr. Bahattab is attempting to enforce his United States patent extraterritorially. Thus, an actual controversy exists between Juniper and Dr. Bahattab with respect to the ‘457 Patent. In response, Juniper filed this instant action on October 3, 2007, against Dr. Bahattab seeking declaratory judgment of invalidity, unenforceability, and noninfringement of the ‘457 patent. (Id. at 1, 3-5.) This Court has jurisdiction over Dr. Bahattab 1 Exhibit A is the Declaration of David L. Cousineau. Case 1:07-cv-01771-PLF-AK Document 7 Filed 01/02/2008 Page 1 of 6 - 2 - pursuant to 35 U.S.C. § 293, since Dr. Bahattab is a United States patentee who does not reside within the United States and who has not made a designation of a resident agent on whom process may be served. (Id.) The primary purpose of 35 U.S.C. § 293 is “to provide at least one available forum where persons charged with infringement of a United States patent held by a person residing abroad may file an action for a declaratory judgment of invalidity and/or noninfringement.” 8-21 CHISUM ON PATENTS § 21.02 (citing Riker Laboratories, Inc. v. Gist Brocades N.V., 636 F.2d 772 (D.C. Cir. 1980)). Dr. Bahattab is an Assistant Professor of the Computer Technology Department at the College of Telecommunications and Electronics in Jeddah, Saudi Arabia. (Exhibit 6 to Exhibit A.) Because Dr. Bahattab lives and works in Saudi Arabia, Juniper submitted an Affidavit Requesting Foreign Mailing by registered mail, return receipt requested on October 5, 2007, and after the Court approved the summons package, sent the summons via registered mail, return receipt requested on October 10, 2007. (See Exhibits 2-4 to Exhibit A.) Although Juniper sent the summons via the United States Postal Service (“USPS”), the USPS contracts with Federal Express (“FedEx”) to deliver mail abroad. (Exhibit B2 at ¶ 3.) FedEx was unable to deliver the package to Dr. Bahattab because Dr. Bahattab’s address contains a post office box. (Id.) Thus, when the FedEx office in Saudi Arabia received the package it called and spoke with Dr. Bahattab on four occasions. (Exhibit B at ¶ 7.) Each time they conversed, Dr. Bahattab either told the FedEx representative that he would contact them later with a delivery address or asked them to hold onto the package for another day. (Id.) After holding the package for 12 days, FedEx had to return the package to Juniper’s counsel. (Id. at ¶¶ 5, 7.) Although he refused to pick up the package, Dr. Bahattab appears to have notice of Juniper’s complaint. In the case filed against Juniper in Dubai - involving the same patent at issue in this lawsuit - Dr. Bahattab stated in a recent filing that Juniper hired counsel in the 2 Exhibit B is the Declaration of Geneva Eaddy. Case 1:07-cv-01771-PLF-AK Document 7 Filed 01/02/2008 Page 2 of 6 - 3 - United States to bring a lawsuit for invalidity and unenforceability. (Exhibit 5 to Exhibit A, at 3 (“[Juniper] appointed barrister in America to litigate against the plaintiff that he did not take the correct steps to register his invention which results that he has no right in claiming any rights upon such invention”).) Because Dr. Bahattab refused to accept delivery of the Complaint from FedEx, Juniper hired a process server on December 7, 2007 with extensive experience serving Saudi Arabian residents to effectuate service on Dr. Bahattab. (Exhibit B at ¶ 8.) To date, the process server has not been able to effectuate service upon Dr. Bahattab. (Id.) ARGUMENT Pursuant to Federal Rule of Civil Procedure 4(f)(3), this Court may direct service “by other means not prohibited by international agreement.” Fed. R. Civ. P. 4(f)(3). Juniper is aware of no international agreement between the United States and Saudi Arabia prohibiting service by e-mail or facsimile. As e-mail has become more prevalent, courts have not hesitated to allow service by e-mail, especially when the defendant lives abroad and is avoiding service. See, e.g., Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007, 1017-1018 (9th Cir. 2002) (concluding that service by electronic mail is “reasonably calculated to apprise [defendant] of the pendency of the action and afford it an opportunity to respond;” “when faced with an international ebusiness scofflaw [and] playing hide-and-seek with the federal court, email may be the only means of effecting service of process”); Williams v. Advertising Sex LLC, 231 F.R.D. 483, 488 (N.D.W.V. 2005) (“the Court concludes that service of process by electronic mail is authorized by and warranted under Rule 4(f)(3) of the Federal Rules of Civil Procedure”); Popular Enterprises, LLC v. Webcom Media Group, Inc., 225 F.R.D. 560, 563 (E.D. Tenn. 2004) (“Service of process by e-mail is reasonably calculated to apprize defendant of the pendency of this action and afford it an opportunity to respond.”); see also Philip Morris USA Inc. v. Veles Ltd, No. 06cv2988, 2007 U.S. Dist. LEXIS 19780, at *5 (S.D.N.Y Mar. 12, 2007) (authorizing service of process via e-mail); Nanya Tech. Corp. v. Fujitsu Ltd, No. 06cv25, 2007 U.S. Dist. LEXIS 5754, at *17 (D. Guam Jan. 25, 2007) (affirming order granting service of process via e- Case 1:07-cv-01771-PLF-AK Document 7 Filed 01/02/2008 Page 3 of 6 - 4 - mail); MPS IP Services Corp. v. Modis Comm., Inc., No. 3:06cv270, 2006 U.S. Dist. LEXIS 34473, at *3 (M.D. Fla. May 30, 2006) (authorizing service via e-mail and facsimile). As described above, Dr. Bahattab resides in Saudi Arabia, has admitted knowledge of this lawsuit through his filing in the Dubai Court of First Instance, and is avoiding service of process as demonstrated by his multiple conversations with FedEx. Moreover, Juniper’s process server has been unable to serve Dr. Bahattab. Time is of the essence in this proceeding. In his Dubai lawsuit against Juniper, Dr. Bahattab is using a foreign court to enforce a United States patent extraterritorially. The Supreme Court of the United States recently confirmed that United States patents only operate domestically. See Microsoft Corp. v. AT&T Corp., 127 S. Ct. 1746, 1758 (U.S. 2007) (“The traditional understanding that our patent law ‘operates only domestically and does not extend to foreign activities,’ . . . is embedded in the Patent Act itself, which provides that a patent confers exclusive rights in an invention within the United States.”) (quoting Alan M. Fisch & Brent Allen, The Application of Domestic Patent Law to Exported Software: 35 U.S.C. § 271(f), 25 U. PA. J. INT’L ECON. L. 557, 559 (2004)). Juniper believes that it will convince the Dubai court that it lacks jurisdiction over the action, but cannot be sure of the outcome. It is thus imperative that Juniper be able to litigate this case in this Court in order to protect itself from an erroneous foreign judgment. Dr. Bahattab makes his e-mail addresses of abahattab@yahoo.com and abahattab@gmail.com and his facsimile number (+9662 6176783) available publicly on his website. (See Exhibit 6 to Exhibit A (http://DrBahattab.BlogSpot.com).) Dr. Bahattab updated his website as of August 24, 2007, so the e-mail addresses and facsimile number are current. Id. Furthermore, there is no concern about whether Dr. Bahattab needs a translated copy of the summons; his website is in English and he received his Ph.D in Computer Science from the Illinois Institute of Technology. Id. at 2. Therefore, Juniper can readily serve Dr. Bahattab via e-mail and facsimile, while protecting Dr. Bahattab’s due process rights. Case 1:07-cv-01771-PLF-AK Document 7 Filed 01/02/2008 Page 4 of 6 - 5 - CONCLUSION For the foregoing reasons, Juniper respectfully requests that this Court authorize Juniper to serve Dr. Bahattab via e-mail at abahattab@yahoo.com and abahattab@gmail.com and via facsimile at +9662 6176783. Respectfully submitted, Dated: January 2, 2008 /s/ Jason F. Hoffman Alan M. Fisch (DC-453068) afisch@kayescholer.com Jason F. Hoffman (DC-467827) jahoffman@kayescholer.com David L. Cousineau (DC-482691) dcousineau@kayescholer.com KAYE SCHOLER LLP The McPherson Building 901 Fifteenth Street, N.W. Washington, D.C. 20005-2327 (202) 682-3500 Tel. (202) 682-3580 Fax. Attorneys for JUNIPER NETWORKS, INC. Case 1:07-cv-01771-PLF-AK Document 7 Filed 01/02/2008 Page 5 of 6 CERTIFICATE OF SERVICE I hereby certify that on January 2, 2008, I filed the foregoing Motion to Authorize Service and the accompanying exhibits via the Court’s ECF system. Because Juniper has been unable to effectuate service of process of the Complaint upon Dr. Bahattab, and that this motion seeks leave to do so via e-mail and facsimile, Juniper has not served a copy of this motion on Dr. Bahattab. Dated: January 2, 2008 /s/ Jason F. Hoffman Jason F. Hoffman Case 1:07-cv-01771-PLF-AK Document 7 Filed 01/02/2008 Page 6 of 6 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 1 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 2 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 3 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 4 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 5 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 6 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 7 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 8 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 9 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 10 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 11 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 12 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 13 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 14 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 15 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 16 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 17 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 18 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 19 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 20 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 21 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 22 of 27 Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 23 of 27 Next Blog» Create Blog | Sign In SEARCH BLOG FLAG BLOG Dr. Abdullah Bahattab Blog Archive ▼ 2007 (3) ▼ August (3) Dr. Abdullah Bahattab About Me DR. ABDULLAH BAHATTAB View my complete profile FRIDAY, AUGUST 24, 2007 Posted by Dr. Abdullah Bahattab at 6:10 AM 0 comments Posted by Dr. Abdullah Bahattab at 6:07 AM 0 comments Dr. Abdullah Bahattab ABDULLAH ALI BAHATTAB Assistant professor of the Computer Technology Department College of Telecommunication & Electronics P.O. Box 50868 Jeddah, 21533 Saudi Arabia Fax: +9662 6176783 E-mail: abahattab@yahoo.com abahattab@gmail.com Page 1 of 4Dr. Abdullah Bahattab 1/2/2008http://drbahattab.blogspot.com/ Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 24 of 27 Education: · Ph.D. degree in Computer Science (Computer Networks), Illinois Institute of Technology, Chicago, IL, July 2000. - Thesis title “Predicting the IP addresses to Speedup Routing Look up”, July 2000, Advisers: Martha Evens, Bohdan Bodnar, and George Kraft. · MS. degree in Computer Science, Western Michigan University, Kalamazoo, MI, April 1995. · BS. degree in Computer Science, King Abdulaziz University, Jeddah, Saudi Arabia, May 1989. Supplementary Education: · Training course for “Deans Management ”, City College Brighton and Hove, Brighton, UK, July 2006. · Training course for “Active Manager in a Workgroup environment”, IPA, Riyadh, Saudi Arabia, March 2006. · Training Course for “Strategic Planning”, IPA, Jeddah, Saudi Arabia, Jan. 2006. · Hands-On training for “Network Security”, Zoom Technologies, Hyderabad, India, July 2004. · Hands-On training for “CCNA”, Zoom Technologies, Hyderabad, India, July 2004. · Hands-On training for “MCSE ”, Zoom Technologies, Hyderabad, India, July 2004. · CCIA Semester2, Telecommunication and Information College, Riyadh, Saudi Arabia, Sept. 11, 2003. · CCIA Semester1, Telecommunication and Information College, Riyadh, Saudi Arabia, 2002. · Hands-On training for “Local Area Network”, Madinah College of Technology, Madinah, Saudi Arabia, August 2001. · Completion of a course of study in Frame Relay: technology and applications, Business Communication Review (BCR), Chicago, IL, Nov., 1996. · Completion of a course of study in System analysis & design, Computer Center, King Abdulaziz University, Jeddah, Saudi Arabia, March 1990. · English Program at University of South Carolina, 1992-1993. Experience: · Head of IT Committee at Jeddah Champers of Commerce, Jan 1, 2007 - present. · College Dean, College of Telecomm. and Electronics, Jeddah, July 2, 2005 - June 11, 2007. · Member of the board of Computer Club (Female) for Ministry of Education, Jeddah, March 2005 - Dec. 2006. · Member of the board of Computer Club (Male) for Ministry of Education, Jeddah, Dec. 2002 - Dec. 2006. · Member of the board of the Saudi Computer Society in the Kingdom of Saudi Arabia, Jan 2005- present. · Chairman of the Saudi Computer Society at Jeddah, June 2002- present. · Member of High Committee of Cooperation Industrial Training, Gotevot, 2002 - present. · Editor member of International refereed Journal “Journal of Technology Research” published by GOTEVOT, Oct. 20, 2004 - present. · Deputy Dean for Education and Training, College of Telecomm. and Electronics, Jeddah, Nov. 6, 2002 - Oct. 23, 2004. · Adjunct Assistant professor of the IT department at Arab Open Page 2 of 4Dr. Abdullah Bahattab 1/2/2008http://drbahattab.blogspot.com/ Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 25 of 27 University, Jeddah, 1425. · Manager of Computer & Information Center, College of Telecomm. and Electronics, Jeddah, Jan. 2001 - June 2004. · Manager of Registrar's office, College of Electronic Technology, Jeddah, Jan. 2001 - June 2003. · Chairman of Computer Technology Department at the College of Electronic Technology, Jeddah, Saudi Arabia, Jan 2001 - Sept. 2003. · Research Intern, Argonne National Laboratory, Argonne, IL, August 1997 - Nov. 1997. - IP over SONET. · 1995-2000, Ph.D. candidate at Illinois Institute of Technology. · 1993-1995, MS. at Western Michigan University. · 1990-1992, Teacher and Manager of the Computer Center at the College of Technology, Jeddah, Saudi Arabia. · 1989-1990, Programmer at National Commercial Bank, Jeddah, Saudi Arabia. Academic Visits: · Visiting universities and technical colleges, New Zealand, Sept. 2005. Publications: · Jemni, M., Bahattab, A., “A collaborative approach for development of Arabic courses for e-learning, A case study of Tunisian-Saudi Arabian experience” IEEE Learning Technology Newsletter, Vol. 7, Issue 2, April 2005 · Bahattab “The proposed Plan for student’s admission at Universities using the Internet”, a letter presented at standards and procedures of admissions at universities conference, Kuwait, Dec. 14-15, 2002. · Bahattab, A., Bodnar, B., Kraft, G., Evens, M., “Producing a high hit ratio and a low search time in forwarding routing tables by predicting IP addresses”, IEEE GLOBECOM 2002 Conference, High Speed Networks Symposium, Nov. 17-21, 2002, Taiwan, Taipei. · Bahattab, Al-Khateeb, “International Standards for ISPs”, Arabic Systems and Information Technology Society, standards for system and information technology conference, Oct. 29-31, 2002, Cairo, Egypt. · Bodnar, B., Bahattab, A., Kraft, G., Evens, M., “Predicting IP addresses to speed up routing lookup”, 2000 Advanced Simulation Technologies Conference. Proceedings of the Applied Telecommunication Symposium, April 16-20, 2000, pp.207-213, Washington D C., USA. Patent-Approved: · “Predictive routing table cache population”, provisional patent application is filed on June 2, 2000, the non-provisional patent application is filed on August 7, 2000, and approved Nov. 2004. http://www.uspto.gov/patft/index.html, Patent No. 6,816,457, patent office Washington D.C. USA. Patent- Pending: · “Routing once and Cross-connect Many”, provisional patent application is filed on Oct. 2007 at patent office Washington D.C. USA. Books: · “Mobile Maintenance”, Bahattab, A., Alssamman, A., Jadallah, E., first edition, deposit No. 2003/1426, Kink Fahad National Library, 9960-47- 727-4, 3/1426. Projects: · Manager of “Voice over IP” project, Gotevot, 1424. · Member of the consultant team of the “Establishing the Data Center and High speed LAN” project, Ministry of girls Education, 1423. · Simulation of High-level Data Link Control (HDLC) Protocol using C programming language. · Designing a Packet-switched network (x.25) using SIMNET package. · Simulation of cache replacement algorithms for routers (FIFO, LRU, Page 3 of 4Dr. Abdullah Bahattab 1/2/2008http://drbahattab.blogspot.com/ Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 26 of 27 Round Robin, Random) using C programming language. Conferences, Seminars & Workshops: · IEEE GLOBECOM 2002 Conference, High Speed Networks Symposium, Taiwan, Taipei Nov. 17-21, 2002. · 2000 Advanced Simulation Technologies Conference, Washington D.C., USA, April 16-20, 2000. · Networking in a New Light: Extending Fiber Beyond the Backbone, 3M Volition , Chicago, IL, May 5, 1999. · Enabling Intelligent Networks, Cisco seminar series, Chicago, IL, June 24, 1998. · Fueling and Controlling High-Speed Networks, XYLAN Technology Workshop, Chicago, IL, May 27, 1998. · Simplifying Network Management, Cisco seminar series, Chicago, IL, May 20, 1998. · Security Solutions, Cisco seminar series, Chicago, IL, April 15, 1998. · Untangling Layer 3 Switching, Cisco seminar series, Brookfield, WI, April 14, 1998. · Planning for High Speed Token Ring, NetworkWorld Town Meeting, Chicago, IL, April 1, 1998. · Frame Relay Migration, RACAL, Chicago, IL, Nov. 15, 1997. · Telecommunication & Internet Access Seminar, ASCEND, Chicago, IL, Oct. 10, 1997. Relevant Skills: · Client-Server Computing: IP routing. · Operating Systems: Both from a user viewpoint and internals viewpoint: MS-DOS, Win95, Win98, and Linux 1.2.8. · Installations: User environment: Linux 1.2.8, Novell 4.11, Win NT4, Win3.x, Win95, Win98, and Win XP. · Programming Languages: C, Perl, HTML, Pascal, COBOL, FORTRAN- 77, Assembly (on PCs), and Clipper (for Database). · Packages: Visio 2002, MATLAB, SIMNET (for designing networks), Microsoft Office 2000: Word, PowerPoint, FrontPage. Posted by Dr. Abdullah Bahattab at 4:13 AM 0 comments Subscribe to: Posts (Atom) Page 4 of 4Dr. Abdullah Bahattab 1/2/2008http://drbahattab.blogspot.com/ Case 1:07-cv-01771-PLF-AK Document 7-2 Filed 01/02/2008 Page 27 of 27 Case 1:07-cv-01771-PLF-AK Document 7-3 Filed 01/02/2008 Page 1 of 4 Case 1:07-cv-01771-PLF-AK Document 7-3 Filed 01/02/2008 Page 2 of 4 Case 1:07-cv-01771-PLF-AK Document 7-3 Filed 01/02/2008 Page 3 of 4 Case 1:07-cv-01771-PLF-AK Document 7-3 Filed 01/02/2008 Page 4 of 4 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUNIPER NETWORKS, INC., Plaintiff, v. ABDULLAH ALI BAHATTAB, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 1:07cv1771-PLF ORDER Upon consideration of Juniper Networks, Inc.’s (“Juniper”) Motion to Authorize Service, it is hereby ORDERED that Juniper shall serve the summons and complaint in this case on Abdullah Ali Bahattab via e-mail at abahattab@yahoo.com and abahattab@gmail.com and via facsimile at + 9662 6176783. Date: ____________ PAUL L. FRIEDMAN UNITED STATES DISTRICT JUDGE Case 1:07-cv-01771-PLF-AK Document 7-4 Filed 01/02/2008 Page 1 of 1