Case 3:18-cv-02621-WHO Document 32 Filed 10/16/18 Page 1 of 15
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`PAUL ANDRE (State Bar No. 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (State Bar No. 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (State Bar No. 237978)
`jhannah@kramerlevin.com
`KRISTOPHER KASTENS (State Bar No. 254797)
`kkastens@kramerlevin.com
`AUSTIN MANES (State Bar No. 284065)
`amanes@kramerlevin.com
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`
`FINJAN, INC., a Delaware Corporation,
`
`Plaintiff,
`
`
`
`v.
`
`CHECK POINT SOFTWARE
`TECHNOLOGIES INC., a Delaware
`Corporation, CHECK POINT SOFTWARE
`TECHNOLOGIES LTD., a Israeli Limited
`Company,
`
`
`
`
`
`Defendants.
`
`
`
`
`Case No.: 5:18-cv-02621-WHO
`
`PLAINTIFF FINJAN, INC.’S MOTION
`TO IMPUTE SERVICE ON
`DEFENDANT CHECK POINT
`SOFTWARE TECHNOLOGIES LTD.
`
`November 21, 2018
`Date:
` 2:00 p.m.
`Time:
`Location: Courtroom 2, 17th Floor
`Judge: Hon. William H. Orrick
`
`Date Complaint Filed: May 3, 2018
`
`Trial Date: January 25, 2021
`
`
`
`FINJAN’S MOTION TO IMPUTE SERVICE ON
`CHECK POINT SOFTWARE TECHNOLOGIES LTD.
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`Case 3:18-cv-02621-WHO Document 32 Filed 10/16/18 Page 2 of 15
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`
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`TABLE OF CONTENTS
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`Page
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`NOTICE OF MOTION .............................................................................................................................1
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`MEMORANDUM OF POINTS AND AUTHORITIES ..........................................................................2
`
`I.
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`II.
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`III.
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`IV.
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`INTRODUCTION ........................................................................................................................2
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`STATEMENT OF ISSUE TO BE DECIDED..............................................................................3
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`SUCCINCT STATEMENT OF FACTS ......................................................................................3
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`ARGUMENT ................................................................................................................................6
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`A.
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`Finjan Properly Served LTD under Both California and Federal Law .............................6
`
`1.
`
`2.
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`3.
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`LTD and Inc. are closely related, such that service on Inc. is
`sufficient for both under California law. ...............................................................6
`
`Finjan also served LTD under FRCP 4(h) and LTD has actual
`notice. ..................................................................................................................10
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`Alternatively, Finjan requests that the Court order Inc. to accept
`service on LTD’s behalf. .....................................................................................11
`
`V.
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`CONCLUSION ...........................................................................................................................12
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`Case 3:18-cv-02621-WHO Document 32 Filed 10/16/18 Page 3 of 15
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
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`
`
`Cases
`
`Cosper v. Smith & Wesson Arms Co.
`(1959) 53 Cal.2d 77, 346 P.2d 409 .................................................................................................8, 9
`
`Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc.,
`840 F.2d 685 (9th Cir. 1988) ......................................................................................................10, 11
`
`Intelelctual Ventures I LLC v. Check Point Software Techs. Ltd.,
`No. 1:10-cv-01067 (D. Del.) ...............................................................................................................6
`
`Milbank v. Standard Motor Constr. Co.,
`132 Cal. App. 67 (1933) .....................................................................................................................8
`
`U.S. ex rel. Miller v. Public Warehousing Co. KSC,
`636 Fed. Appx. 947 (9th Cir. 2016) ..........................................................................................7, 9, 12
`
`Nuance Commc’ns, Inc. v. Abbyy Software House,
`626 F.3d 1222 (Fed. Cir. 2010).........................................................................................................11
`
`In re LDK Solar Sec. Litig.,
`No. 07–05182, 2008 WL 2415186 (N.D. Cal. June 12, 2008) .........................................................11
`
`Rio Props., Inc. v. Rio Int’l Interlink,
`284 F.3d 1007 (9th Cir. 2002) ..........................................................................................................11
`
`In re: Trend Micro Inc.,
`Appeal No. CAFC-12-0119 (Fed. Cir. 2012) .....................................................................................6
`
`Van v. Black Angus Steakhouses, LLC,
`No. 5:17-cv-06329-EJD, 2018 WL 2763330 (N.D. Cal. June 8, 2018) ...........................................10
`
`Verifire Network Solutions, LLC v. Check Point Software Techs. Ltd.,
`No. 2:15-cv-00929 (E.D. Tex.) .......................................................................................................5, 6
`
`Yamaha Motor Co., v. Sup. Ct.,
`174 Cal. App. 4th 264 (2009) .................................................................................................2, 7, 8, 9
`
`Other Authorities
`
`Federal Rule of Civil Procedure 4(e) ....................................................................................................1, 2
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`Federal Rule of Civil Procedure 4(e)(1) .................................................................................................10
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`Federal Rule of Civil Procedure 4(h)(1)(B) ............................................................................................10
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`Case 3:18-cv-02621-WHO Document 32 Filed 10/16/18 Page 4 of 15
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`
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`NOTICE OF MOTION
`
`PLEASE TAKE NOTICE that on November 21, 2018, at 2:00 p.m., or as soon thereafter as
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`this matter may be heard before Judge William H. Orrick of the United States District Court for the
`Northern District of California in Courtroom 2, 17th Floor, of 450 Golden Gate Avenue in San
`Francisco, CA, Plaintiff Finjan, Inc. (“Finjan”), will move to impute service of the complaint in this
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`action on Defendant Check Point Software Technologies Ltd. (“LTD”) through its wholly owned
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`subsidiary, Defendant Check Point Software Technologies Inc. (“Inc.”).
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`Finjan requests that the Court find service was proper on LTD under: Federal Rule of Civil
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`Procedure 4(e) and California law, which allows service on a foreign entity by serving its wholly
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`owned subsidiary in this State; under Rule 4(h) because Inc. and LTD are so intertwined that Inc. is
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`LTD’s agent for service of process; and under Rule 4(f) because Courts in this District will order a
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`wholly owned subsidiary to accept service on behalf of their foreign parent, especially where the same
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`counsel has repeatedly represented both the domestic subsidiary and the foreign parent in prior
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`litigations.
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`This motion is based on this Notice of Motion and Motion, the following Memorandum of
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`Points and Authorities, the Declaration of Austin Manes in support of the Motion and exhibits thereto,
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`the proposed order submitted herewith, the pleadings and papers on file in this action, any evidence
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`and argument presented to the Court at or before the hearing on this motion, and all matters of which
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`the Court may take judicial notice.
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`Case 3:18-cv-02621-WHO Document 32 Filed 10/16/18 Page 5 of 15
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`INTRODUCTION
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`The Court should impute service on foreign defendant LTD because Finjan served its wholly
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`owned subsidiary in this State. Federal law allows service under the law of the forum state and
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`California law permits service on a foreign entity by serving its domestic subsidiary here. As the
`California Court of Appeal holds, “yes, it really is that easy.”1 Specifically, California permits service
`on an entity by serving its “general manager” in this State, which is interpreted broadly and has been
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`held to include such entities or individuals as: wholly owned U.S. subsidiaries of foreign companies; a
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`mechanic doing business in California for a foreign company; a sales representative in California for a
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`foreign company; and other entities with contacts to California that are related to the foreign company.
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`Here, the relationship between Inc. and LTD far exceeds the standard for finding that Inc. is LTD’s
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`“general manager” in California. LTD completely controls Inc., promotes Inc.’s office in San Carlos,
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`CA as LTD’s “U.S. Headquarters,” intentionally obscures the fact that Inc. is a separate subsidiary, and
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`operates and advertises both companies as “one global organization.” Inc. and LTD were founded by
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`the same man who still controls both entities. All of Inc.’s public documents, websites, marketing
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`materials, and press releases are issued by and for LTD and emblazoned with LTD’s logo, not Inc.’s.
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`Moreover, LTD recently submitted to jurisdiction in the Eastern District of Texas while admitting that
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`LTD has a principal place of business at 959 Skyway Road in San Carlos, CA – which is Inc.’s
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`address. All of these facts and the additional evidence described below demonstrate that LTD and Inc.
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`are sufficiently related, such that it is reasonable to assume Inc. will apprise (and already has apprised)
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`LTD of the service made on it. Under California law and Federal Rule of Civil Procedure 4(e), this is
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`more than sufficient to impute service on LTD.
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`In addition to serving LTD under Rule 4(e), Finjan also served LTD under Rule 4(h) by
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`delivering a copy of the complaint to Inc. as LTD’s agent. Even under a higher standard than
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`California law requires, because Inc. and LTD are so intertwined, Inc. is LTD’s agent under Rule 4(h)
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`1 Yamaha Motor Co., v. Sup. Ct., 174 Cal. App. 4th 264, 267 (2009) (ordering service effective on
`Yamaha-Japan through its wholly owned domestic subsidiary in California, Yamaha-America).
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`Case 3:18-cv-02621-WHO Document 32 Filed 10/16/18 Page 6 of 15
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`such that service on Inc. is also effective on LTD. Further, the interests of fairness, reasonableness,
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`and justice considered by Ninth Circuit caselaw on this issue also weigh in favor of imputing service
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`on LTD – because LTD caused Inc. to register an agent for service of process in this State, so that LTD
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`could do business in this State, but now seeks to avoid service in this State. To prevent this abuse of
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`process, it is fair, reasonable, and just for the Court to impute service on LTD through its subsidiary.
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`Finally, as a third avenue, Courts in this District have required wholly owned subsidiaries or
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`their counsel to accept service on behalf of their foreign parents under Rule 4(f). Since Inc.’s counsel
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`in this case has also represented LTD in at least three prior cases, Finjan requests such an order or,
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`alternatively, requests discovery in order to prove the close relationship between Inc. and LTD.
`II.
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`STATEMENT OF ISSUE TO BE DECIDED
`1.
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`Whether LTD has sufficient notice of the Complaint such that Finjan’s service on it is
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`effective.
`III.
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`SUCCINCT STATEMENT OF FACTS
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`Gil Shwed founded Check Point Software Technologies in 1993. Declaration of Austin Manes
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`(“Manes Decl.”), Ex. 1 at 2; id., Ex. 2 at 2. Even then Mr. Shwed knew he would expand his company
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`to the United States. Id. “When we started in 1993 we were three guys in Israel it was clear that to be
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`successful we would have to win in the U.S. market . . . our first sales and marketing function was in
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`Silicon Valley.” Id. Today, Mr. Shwed runs LTD and all of its subsidiaries as a single global entity.
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`Id., Ex. 2 at 1. LTD has over 70 wholly owned subsidiaries in countries around the world and operates
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`all of them as part of “one global organization.” Id. LTD treats its 2,000 foreign employees across its
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`global subsidiaries all as employees of LTD. Id. Mr. Shwed explained LTD’s “global company” ethos
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`in an interview last year, which LTD then promoted on its public website as follows:
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`Id. at 3. In that interview, Mr. Shwed also explained that LTD gets 40% of its sales from the United
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`States and exposure to the U.S. market helped it expand globally: “Once were established in the U.S. --
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`where we get 40% of our sales -- people from other countries asked to use our product. We have built
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`a network or resellers around the world and our 1,700 to 2,000 people in our global offices provide
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`pre-sales support like running seminars and providing access to our technical people.” Id.
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`Inc. is one of LTD’s “global offices” that Mr. Shwed refers to above, and is part of LTD’s
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`“network of resellers around the world.” Id. Inc. admits that it is a wholly owned subsidiary of LTD
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`and that its headquarters and principal place of business is 959 Skyway Road, Suite 300, San Carlos,
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`CA 94070. Dkt. No. 19 (Inc.’s Answer) at 1. On the “Contact Us” page of LTD’s website, LTD
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`advertises Inc.’s San Carlos, CA address at 959 Skyway Road as an LTD office where the public can
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`contact LTD. Manes Decl., Ex. 3 (www.checkpoint.com/about-us/contact-us/). LTD also advertises
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`that it has a “US Headquarters” in San Carlos, CA, and shows a picture of 959 Skyway Road in San
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`Carlos, CA, on its website with the caption “Check Point’s office in San Carlos, CA.” Id., Ex. 2 at 2;
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`id., Exs 3-5; id., Ex. 6 at 19; id., Ex. 7 at 14; id., Ex. 8 at 4; id., Ex. 9 at 4; id., Ex. 10 at 3.
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`In fact, Inc. does not even have its own website – all traffic redirects to LTD’s website where the top of
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`every page contains the logo for LTD, not Inc. See id., Ex. 19 at 1 (www.checkpoint.com). LTD also
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`publishes various manuals, user guides, and whitepapers for LTD’s products, emblazoned with LTD’s
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`corporate logo, that Inc. markets and sells in the United States. Id., Exs. 6-10. For example, every
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`exhibit to Finjan’s complaint that concerns the accused products bears LTD’s corporate logo and states
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`“[a]ll rights reserved” for “Check Point Software Technologies Ltd.” Dkt. No. 23 at 2-3; Dkt. Nos. 1-
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`12 – 1-25 (Exs. 13-25 attached to Finjan’s complaint). Exhibits 12, 15, and 17-19 to Finjan’s
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`complaint were taken from LTD’s website and all of them bear LTD’s logo and list Inc.’s San Carlos,
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`CA address at 959 Skyway Road as LTD’s “U.S. Headquarters.” Dkt. Nos. 1-12, 1-15, 1-17, 1-18, 1-
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`19; Manes Decl., Ex. 6 at 19; id., Ex. 7 at 14; id., Ex. 8 at 4; id., Ex. 9 at 4; id., Ex. 10 at 3.
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`LTD regularly issues press releases regarding its business and products out of “San Carlos,
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`CA” that promote it as a global company. Id., Ex. 11 (“SAN CARLOS, CA – Mon, 08 Oct 2018 ---
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`Check Point® Software Technologies, Ltd. (NASDAQ: CHKP), a leading provider of cyber-security
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`solutions globally”). Many of these press releases quote LTD’s Chief Executives. See, e.g., id., Ex. 11
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`(quoting LTD’s Chief Marketing Officer, Peter Alexander out of San Carlos, CA). Mr. Alexander’s
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`LinkedIn page shows that he works for LTD, not Inc. Id., Ex. 12 at 1. In fact, many of LTD’s key
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`employees live in this District or elsewhere in the United States and work for LTD, not Inc. See, e.g.,
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`id., Ex. 13 at 1 (Brian Gleeson, Check Point Ltd.’s Head of Product Marketing, Emerging Products,
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`Threat Prevention, Cloud & Mobile Security in the “San Francisco Bay Area”). And LTD regularly
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`advertises active job listings in this District for its “U.S. Headquarters” in this District. LTD’s website
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`currently lists at least 40 active job listings for its San Carlos, CA office, including marketing and sales
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`positions as well as software engineering positions under the “Products – R&D” category. Id., Ex. 14
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`(https://careers.checkpoint.com/index.php?m=careers&a=jobs&country_code=US). LTD’s LinkedIn
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`page also posts active job listings for San Carlos, CA alongside job listings for Tel Aviv, Israel. Id.,
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`Exs. 15-16.
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`Finally, in a separate patent infringement action in another district, LTD admitted that it was “a
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`Delaware corporation with a principal office located at 959 Skyway Road, Suite 2300, San Carlos,
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`California 94070 and that the Court has jurisdiction over Check Point.” Id., Ex. 17 at 1 (defining LTD
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`as “Check Point”) (Verifire Network Solutions, LLC., v. Check Point Software Techs. Ltd., 2:15-cv-
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`00929-JRG-RSP, Dkt. No. 12, Defendant Check Point Software Techs. Ltd.’s Answer (E.D. Tex. Aug.
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`24, 2015)). In 2015, when LTD made this admission, the Annual Report that it filed with the SEC
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`showed that LTD was an Israeli company and that Inc. was a wholly owned subsidiary at the time, just
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`as they are today. Id., Ex. 20 at 1, 26.
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`Finjan filed its complaint against LTD and Inc. on May 3, 2018. Dkt. No. 1. Finjan served the
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`complaint on LTD and Inc. through their agent for service of process, Bill Jacobs. Dkt. Nos. 12-13.
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`On July 16, 2018, Inc. answered Finjan’s complaint and admitted that 959 Skyway Road in San Carlos
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`is Inc.’s headquarters, but denied “that that location is the headquarters for [LTD].” Dkt. No. 19 at 1,
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`¶¶ 2, 5. Inc.’s Answer also expressly denied that LTD “does business in this District, that its
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`headquarters are located in the city of San Carlos, and that it lists job opportunities for its headquarters
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`on its website.” Dkt. No. 19 at 1-2, ¶ 6.
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`Finjan and Inc. filed a joint case management statement on August 7, 2018. Dkt. No. 23. In
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`that joint statement, Inc. admitted that LTD is a publicly traded company on the U.S. NASDAQ. Id. at
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`1. Inc. also admitted that Clement Roberts, counsel of record for Inc., represented to Finjan’s counsel
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`that plaintiffs in prior litigations against LTD had failed to effectuate service on LTD through the
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`Hague Convention. Id. Mr. Roberts has represented LTD in at least three previous cases, including:
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`Intellectual Ventures I LLC v. Check Point Software Techs. Ltd., Case No. 1:10-cv-01067 (D. Del.);
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`Verifire Network Solutions, LLC v. Check Point Software Techs. Ltd., Case No. 2:15-cv-00929 (E.D.
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`Tex.); and In re: Trend Micro Inc., Appeal No. CAFC-12-0119 (Fed. Cir. 2012).
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`On October 9, 2018, Inc. served responses to Finjan’s First Set of Interrogatories and First Set
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`of Requests for Production of Documents. In both of those responses, Inc. refused to provide
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`information or documents from LTD based on the assertion that LTD did not believe it had been
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`served or was a party to this action.
`IV. ARGUMENT
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`A.
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`Finjan Properly Served LTD under Both California and Federal Law
`1.
`
`LTD and Inc. are closely related, such that service on Inc. is sufficient for
`both under California law.
`LTD and its domestic subsidiary Inc. operate as a single entity. LTD so thoroughly controls
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`Inc. that most observers would not notice there are two entities, let alone any difference between the
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`two, which is precisely LTD’s intention. Manes Decl., Ex. 1 at 5 (LTD’s CEO describing his “one
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`global corporation” operations); see generally, id., Exs. 2-17. Inc. does not dispute that Finjan served
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`it properly. Dkt. No. 19 at 1. Under California law, service on Inc. is sufficient to impute service on
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`LTD because Inc. is a wholly owned subsidiary and well within the definition of a “general manager in
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`this State” for LTD. “The Federal Rules of Civil Procedure permit service upon a corporation . . . as
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`prescribed by the law of the forum state or the state in which service is made.” U.S. ex rel. Miller v.
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`Public Warehousing Co. KSC, 636 Fed. Appx. 947, 948 (9th Cir. 2016). California law, in turn,
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`“permits service of process upon a foreign corporation transacting business in California by serving ‘its
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`general manager in this State.’” Id. (citing Cal. Code of Civ. Proc. § 416.10(b) and Cal. Corp. Code
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`§ 2110).
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`In the seminal authority on this issue, the California Court of Appeal stated that service on an
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`American subsidiary is effective on its foreign parent:
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`The trial court ruled that a Japanese manufacturer could indeed be validly
`served that way. The method just seemed too easy a way to get around the
`Hague Service Convention and we scheduled an OSC on the petition to
`give us the chance to study the issue.
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`On review, however, it turns out that, yes, it really is that easy. And not
`only that, there is nothing this court, as a matter of California common
`law, can do about it. We are a court under authority, and there is a non-
`overruled, non-distinguishable California Supreme Court case, Cosper v.
`Smith & Wesson Arms Co. (1959) 53 Cal.2d 77, 346 P.2d 409, that makes
`service on the California representative of a foreign parent valid—
`that is, valid as to the foreign parent—under California law.
`Yamaha, 174 Cal. App. 4th at 267 (emphasis in bold added).
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`The facts in Yamaha are directly on point. There, the Yamaha court noted that Yamaha-
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`America was Yamaha-Japan’s “wholly owned domestic subsidiary in the United States,” whose
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`principal business was to market and distribute Yamaha’s products in the U.S., and that Yamaha-Japan
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`described Yamaha-America as its “Regional Headquarters for North America.” Id. at 268. The
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`Yamaha court held this relationship far exceeded the standard for finding a subsidiary is a “general
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`manager” of a foreign company under California’s service of process statutes. Id. at 274 (“the
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`relationship between the manufacturer’s representative and the manufacturer in Cosper was far less
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`intimate, far less connected, and far less interrelated than the relationship between Yamaha–America
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`FINJAN’S MOTION TO IMPUTE SERVICE ON
`CHECK POINT SOFTWARE TECHNOLOGIES LTD.
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`Case 3:18-cv-02621-WHO Document 32 Filed 10/16/18 Page 11 of 15
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`and Yamaha–Japan in the case before us”). Here, as in Yamaha, Inc. is LTD’s wholly owned
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`subsidiary who markets and distributes LTD’s products in the U.S. and LTD repeatedly advertises that
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`Inc.’s offices are LTD’s “U.S. Headquarters.” Thus, this relationship between Inc. and LTD also far
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`exceeds the standard for finding Inc. is LTD’s “general manager” for California service of process.
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`Indeed, for nearly 100 years, the terms “general manager” and “managing or business agent” in
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`California’s service of process statues have been construed broadly and they are not “susceptible of
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`subtle distinctions.” See, e.g., Milbank v. Standard Motor Constr. Co., 132 Cal. App. 67, 69-71 (1933)
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`(finding service sufficient on a single mechanical engineer sent by a foreign entity to service engines
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`that the entity sold in California). In Cosper v. Smith & Wesson Arms Co., 53 Cal. 2d 77 (1959), on
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`which Yamaha relies, the California Supreme Court found that a sales representative, who was
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`contracted by Massachusetts corporation Smith and Wesson to “promote on a non-exclusive basis the
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`sale of [its] products on the West Coast,” was a “general manager in this State” such that service on the
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`non-exclusive sales representative was sufficient to perfect service on Smith and Wesson. Id. at 80, 83-
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`85. The Cosper court noted that service is effective under California law if service on the agent made
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`it “reasonably certain that the defendant will be apprised of the service made.” Id. at 83. The Cosper
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`court further held that an agent meets that requirement if it provides the defendant with “the
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`opportunity for ‘regular contact with its customers and a channel for a continuous flow of business into
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`the state’” and the defendant enjoys through the agent “substantially the business advantages that it
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`would have enjoyed ‘if it conducted its business through its own offices or paid agents in the state.’”
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`Id. at 84 (citations omitted). Here, at minimum, LTD uses Inc. to gain access to the U.S. market and a
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`channel for continuous flow of business into California. Manes Decl., Ex. 1. Thus, just like in Cosper,
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`it is reasonably certain that Inc. will apprise LTD of the service made (and already has), and the
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`relationship between the two is sufficient to deem service on Inc. effective on LTD.
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`The Ninth Circuit recently construed Cosper under Federal Law while also upholding Yamaha
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`as the “most recent decision from the California Court of Appeal” on this issue. U.S. ex rel. Miller,
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`636 Fed. Appx. at 949 (holding service on a closely related corporation in California can be effective
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`on its foreign counterpart). The Ninth Circuit noted there used to be a split in California courts on this
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`8
`FINJAN’S MOTION TO IMPUTE SERVICE ON
`CHECK POINT SOFTWARE TECHNOLOGIES LTD.
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`Case 3:18-cv-02621-WHO Document 32 Filed 10/16/18 Page 12 of 15
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`issue, but the more recent line of authority allows service on a subsidiary where the foreign entity was
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`“otherwise not readily available for service within California” and there is a sufficient connection
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`between the two entities based on their frequency of contact, the benefits in California the parent
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`derives from the subsidiary, and the “overall likelihood that service upon the subsidiary will provide
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`actual notice to the parent.” Id. Ultimately, the Ninth Circuit concluded that the foreign corporation at
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`issue was otherwise not readily available for service within California and remanded to permit the
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`plaintiff to take discovery on the “nature of the relationship” between the entities, and also to “consider
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`whether service was adequate on other grounds.” Id.
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`Here, all of the factors outlined in Cosper, Yamaha, and U.S. ex rel. Miller weigh in favor of
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`finding that service on Inc. was effective as service on LTD in this case. Just like in Yamaha, Inc. is
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`one of LTD’s “global offices” and part of LTD’s “network of resellers around the world.” Manes
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`Decl., Ex. 1 at 3; id., Ex. 2 at1; id., Exs. 3-5; id., Ex. 6 at 19; id., Ex. 7 at 14; id., Ex. 8 at 4; id., Ex. 9 at
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`4; id., Ex. 10 at 3; id., Ex. 11 at 2-3. LTD refers to Inc. as its U.S. Headquarters and treats Inc.
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`employees as employees of LTD. Id., Exs. 1-2 and 11-16. LTD commanders all internet, mail, and
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`phone traffic to or from Inc.’s office address as LTD’s own addresses. Id., Exs. 3-5 and 11-16. LTD
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`uses Inc. to issue press releases for its global business out of San Carlos, CA, and causes Inc. to
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`publish and distribute marketing materials, user manuals, and white papers bearing LTD’s logo, not
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`Inc.’s. Id., Exs. 6-11. Thus, Inc. provides LTD with the opportunity for regular contact with its
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`California customers and a channel for a continuous flow of business into the state. Cosper, 53 Cal. 2d
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`at 84; U.S. ex rel. Miller, 636 Fed. Appx. at 949. If in Cosper a sporting-goods-oriented non-exclusive
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`purveyor of guns on the West Coast was a “general manager in this State” for Smith and Wesson, and
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`an “agent of sufficient character and rank to make it reasonably certain that the defendant will be
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`apprised of the service made,” then certainly the wholly owned subsidiary of LTD, which LTD
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`operates as its “U.S. Headquarters,” is also LTD’s “general manager in this State.” And if it was
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`reasonably certain that a casual sporting goods representative would apprise the foreign manufacturer
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`of service in Cosper, it is even more certain that Inc. and its outside counsel, who has represented LTD
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`9
`FINJAN’S MOTION TO IMPUTE SERVICE ON
`CHECK POINT SOFTWARE TECHNOLOGIES LTD.
`
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`Case 3:18-cv-02621-WHO Document 32 Filed 10/16/18 Page 13 of 15
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`in at least three prior cases, has already apprised LTD of the Finjan’s complaint here. Finjan
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`adequately served LTD under California law.
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`2.
`Finjan also served LTD under FRCP 4(h) and LTD has actual notice.
`Separately, Finjan also served LTD by serving Inc. as its agent under Fed. R. Civ. P. 4(h),
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`which allows service on a foreign corporation “by delivering a copy of the summons and of the
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`complaint to an officer, a managing or general agent, or any other agent authorized by appointment or
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`by law to receive service.” Fed. R. Civ. P. 4(h)(1)(B). “Despite the language of the Rule, service is
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`not limited solely to officially designated officers, managing agents, or agents appointed by law.”
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`Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988).
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`“Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice
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`of the complaint.” Id. (citation omitted). “The rules are to be applied in a manner that will best
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`effectuate their purpose of giving the defendant adequate notice.” Id. Thus, all that is required for
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`service to be effective is that the defendant received sufficient notice and the plaintiff substantially
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`complied with Rule 4. Here, both of those conditions are met.
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`As shown above, Inc.’s relationship with LTD far exceeds the standard for service under
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`California law and Fed. R. Civ. P. 4(e)(1) (allowing service under state law), and service is valid on
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`this basis alone. But Inc. is so intertwined with LTD that it also functions as LTD’s agent for service
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`of process under Fed. R. Civ. P. 4(h). See Van v. Black Angus Steakhouses, LLC, No. 5:17-cv-06329-
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`EJD, 2018 WL 2763330, at *3 (N.D. Cal. June 8, 2018) (noting service on a subsidiary may be
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`effective on a parent under Rule 4(h) where the two are not independently operated). Here, Inc. is a
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`wholly owned subsidiary that LTD operates as a part of LTD, and service on Inc. is sufficient to
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`impute service on LTD. Further, in Direct Mail, the Ninth Circuit held that service may be imputed
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`when it is “fair, reasonable, and just” to do so. 840 F.2d at 688 (“It is also true that actual receipt of
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`process by the correct person may be a factor in finding process valid when there are other factors that
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`make process fair.”). Here, it is “fair, reasonable, and just” to impute service on LTD because LTD
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`takes advantage of the benefits and protections of this State and this District through its “U.S.
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`H