`
`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`RFCyber CORP.,
`
`Plaintiff,
`
`v.
`
`VISA U.S.A. Inc.,
`
`Defendant.
`
`CASE NO.: 6:22-cv-00697
`
`JURY TRIAL DEMANDED
`
`DEFENDANT VISA U.S.A. INC.’S MOTION TO DISMISS RFCYBER CORP.’S
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Pursuant to Rule 12(b)(5) and 4(m) of the Federal Rules of Civil Procedure, Defendant
`
`Visa U.S.A. Inc. (“Visa”), respectfully requests that the Court dismiss Plaintiff RFCyber’s
`
`(“Plaintiff”) Complaint for Patent Infringement (the “Complaint”) against Visa because it was
`
`not timely served within 90 days of when the Complaint was filed.
`
`I.
`
`BACKGROUND
`
`Plaintiff filed the Complaint against Visa on June 28, 2022, alleging Visa manufactured,
`
`used, marketed, distributed, sold, offered for sale, and exported from and imported into the United
`
`States devices and software that infringe U.S. Patent Nos. 8,118,218, 8,448,855, 9,189,787,
`
`9,240,009 (collectively, the “Patents-in-Suit”). Compl. ¶ 1, 12. The Patents-in-Suit allegedly
`
`cover apparatus and methods for provisioning a card and/or enabling secure contactless payment
`
`with a portable device. Compl. ¶ 11.
`
`On October 27, 2022, after 121 days had passed since Plaintiff filed the Complaint, Visa
`
`was served.
`
`- 1 -
`
`
`
`Case 6:22-cv-00697-ADA Document 7 Filed 11/17/22 Page 2 of 5
`
`II.
`
`ARGUMENT
`
`a.
`
`Federal Rule of Civil Procedure 12(b)(5) and 4(m) Requires Dismissal of the
`Complaint against Defendant Visa
`
`Rule 12(b)(5) allows a party to file a motion to dismiss for “insufficient service of process.”
`
`Fed. R. Civ. P. 12(b)(5). For service to be effective, a plaintiff must comply with Federal Rule of
`
`Civil Procedure 4. See Fed. R. Civ. P. 4.
`
`Rule 4(m) gives a plaintiff 90 days after filing the complaint to make service. Fed. R. Civ.
`
`P. 4(m). If service is not made within this timeframe, the court must dismiss the action without
`
`prejudice against that defendant or order that service be made within a specified time. Id.
`
`However, if the plaintiff shows good cause for the failure, the court must extend the time for
`
`service for an appropriate period. Id. If good cause does not exist, the court may, in its discretion,
`
`decide whether to dismiss the case without prejudice or extend time. Thompson v. Brown, 91 F.3d
`
`20, 21 (5th Cir. 1996) (emphasis in original).
`
`The Complaint was filed on June 28, 2022. Ninety (90) days after Plaintiff filed the
`
`Complaint was September 26, 2022. Plaintiff waited until October 27, 2022, 121 days after filing
`
`the Complaint, before serving Visa. Visa should be dismissed based on Plaintiff’s untimely
`
`service.
`
`b.
`
`Good Cause Does Not Exist to Extend the Time for Service
`
`The “good cause” under Rule 4(m) requires “‘at least as much as would be required to
`
`show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the
`
`rules usually does not suffice.’” Gartin v. Par Pharm. Cos., Inc., 289 F. App’x 688, 692 (5th Cir.
`
`2008) (quoting Lambert v. United States, 44 F.3d 296, 299 (5th Cir. 1995)). In addition, courts
`
`normally require “some showing of good faith on the part of the party seeking an enlargement and
`
`some reasonable basis for noncompliance within the time specified …” Id.
`
`- 2 -
`
`
`
`Case 6:22-cv-00697-ADA Document 7 Filed 11/17/22 Page 3 of 5
`
`Here, there is no good cause for Plaintiff’s failure. Plaintiff has not offered any reason for
`
`failing to serve Visa within the required timeframe.
`
`c. This Court Should Not Exercise its Discretion to Extend the Time for Service
`
`When a plaintiff does not show good cause, a court nevertheless “has discretionary power
`
`to extend the time for service.” Millan v. USAA GIC, 546 F.3d 321, 325 (5th Cir. 2008). A
`
`discretionary extension may be warranted, “‘for example, if the applicable statute of limitations
`
`would bar the refiled action, or if the defendant is evading service or conceals a defect in
`
`attempted service.’” Id. (quoting Fed. R. Civ. P. 4(m) advisory committee’s note (1993)).
`
`Here, none of the common grounds for the Court to exercise its discretion exists. Pursuant
`
`to 35 U.S.C. §286, the statute of limitations for patent infringement is six years. 35 U.S.C. §286.
`
`Plaintiff does not claim that Visa began infringing on the Patents-in-suit more than six years ago.
`
`Moreover, Plaintiff does not claim that Visa has contributed to the insufficiency of service.
`
`III.
`
`CONCLUSION
`
`Based on the foregoing, Visa respectfully requests that the Court dismiss the Complaint.
`
`- 3 -
`
`
`
`Case 6:22-cv-00697-ADA Document 7 Filed 11/17/22 Page 4 of 5
`
`Dated: November 17, 2022
`
`Respectfully submitted,
`/s/ James C. Yoon
`James C. Yoon (CA Bar No. 177155)
`jyoon@wsgr.com
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304-1050
`Telephone: (650) 493-9300
`Fax: (650) 493-6811
`Jamie Y. Otto (CA Bar No. 229323) (pro hac vice
`pending)
`jotto@wsgr.com
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`633 West Fifth Street, Suite 1550
`Los Angeles, California 90071
`Telephone: (323) 210-2900
`Fax: (866) 974-7329
`Attorneys for Defendant VISA U.S.A. Inc.
`
`- 4 -
`
`
`
`Case 6:22-cv-00697-ADA Document 7 Filed 11/17/22 Page 5 of 5
`
`CERTIFICATE OF SERVICE
`
`The undersigned, an attorney, hereby certifies that a true and correct copy of the foregoing
`
`document has been served on all counsel of record via electronic mail on November 17, 2022.
`
`By: /s/ James C. Yoon
`
`