United States District Court, D. Columbia
Document Nos.: 4, 9, 11, 14.
GHARB, Plaintiff, Pro se, Switzerland.
MITSUBISHI ELECTRIC CORPORATION, MITSUBISHI ELECTRIC
AUTOMATION, INC., Defendants: Joshua Morris Segal, LEAD
ATTORNEY, JENNER & BLOCK, LLP, Washington, DC.
CONTRERAS, United States District Judge.
Defendants' Motion to Dismiss, Motion to Strike, Request
for Attorney's Fees, and Request for Anti-Suit
Injunction; Denying as Moot Plaintiff's First and Second
Requests for Payment of Damages
Samy Gharb has filed a pro se complaint against
Mitsubishi Electric Automation, Inc. (MEAU), Mitsubishi
Electric Corporation (MELCO), and five individuals currently
or formerly employed by MELCO in Japan. Mr. Gharb alleges
that Defendants infringed U.S. Patent No. 6,552,654 (the
'654 patent), held by Mr. Gharb. See Compl. 2-3,
ECF No. 1. This is the third instance in which Mr. Gharb has
filed a complaint alleging that a Mitsubishi Electric entity
infringed the '654 patent, and each of the two prior
complaints alleging infringement by a Mitsubishi Electric
entity were dismissed with prejudice at the pleading stage.
See Gharb v. Mitsubishi Elec. Automation,
Inc., No. 10-7204, 2012 WL 1986435, at *7 (N.D.Ill. June
4, 2012) ( Gharb I ); Gharb v. United
States, No. 12-0913, 112 Fed.Cl. 94, 98 (Fed. Cl. 2013)
( Gharb II ) (finding that the United States
government did not infringe the '654 patent by entering
into a contract with MELCO). However, three years later, Mr.
Gharb continues his litigation campaign against Defendants by
filing meritless pleadings in this Court, which accuse
Defendants and their counsel of " hiding
MELCO and MEAU now move to dismiss Mr. Gharb's claims,
and they request an award of attorney's fees. MELCO and
MEAU also request an anti-suit injunction against Mr. Gharb
to prevent him from filing any future claims against them
arising out of the '654 patent. Lastly, MELCO and MEAU
move to strike Mr. Gharb's later filing, titled "
Lawsuit against Mr Joshua M Segal and Jenner & Block,"
which includes allegations against MELCO and MEAU's
Court finds that Mr. Gharb's claims are barred by res
judicata, that Mr. Gharb fails to state a claim upon
which relief may be granted, and that the time period for
enforcing the '654 patent has expired. Accordingly, the
Court dismisses Mr. Gharb's complaint, grants MELCO and
MEAU's motion to strike Mr. Gharb's "
Lawsuit" against their counsel, grants MELCO and
MEAU's request for attorney's fees, and grants MELCO
and MEAU's request for an anti-suit injunction.
Gharb is the inventor and owner of the '654 patent "
Security System with a Mobile Telephone." Gharb
II, 112 Fed.Cl. at 95; see also Complaint
Exhibit 1, Gharb II, 112 Fed.Cl. 94 (No. 12-0913),
ECF No. 1. Mr. Gharb filed an application for the
'654 patent on May 25, 2000, and the United States Patent
and Trademark Office issued the patent on April 22, 2003.
See Complaint Exhibit I, Gharb II, 112
Fed.Cl. 94 (No. 12-0913). Mr. Gharb's patent expired on
April 22, 2007, " due to Mr. Gharb's non-payment of
the maintenance fees required under 37 C.F.R. §
1.362." Unitronics (1989) (R" G) Ltd.
v. Gharb, 532 F.Supp.2d 25, 26 (D.D.C. 2008). In his
Complaint, Mr. Gharb appears to allege that Defendants have
sold security systems with mobile telephones under the model
designation of " PLC ALPHA XL" that infringe the
'654 patent. See Compl. 2, 11-12 (alleging that
" [t]he team of Mitsubishi Electric has stolen my
invention U.S. patent No. 6,552,654" and that "
[the] Mitsubishi team sold PLC ALPHA XL WITH GSM MOBILE PHONE
WITHOUT ANY LEGAL PATENT RIGHT" (emphasis omitted)).
not the first instance in which Mr. Gharb has sued a
Mitsubishi Electric entity alleging that the ALPHA line of
products, including the " PLC ALPHA XL," infringed
the '654 patent. In 2010, Mr. Gharb filed a complaint in
the Northern District of Illinois claiming that both MEAU and
MELCO, among others, infringed the '654 patent.
See Complaint, Gharb I, 2012 WL 1986435
(N.D.Ill. 2012) (No. 10-7204), ECF No. 1. Mr. Gharb
subsequently amended his complaint, focusing his claims
solely on MEAU and withdrawing his claims against the other
defendants, including MELCO. See First Amended
Complaint at 2, Gharb I, 2012 WL 1986435 (N.D.Ill.
2012) (No. 10-7204), ECF No. 15. MEAU moved to dismiss Mr.
Gharb's amended complaint under Federal Rule of Civil
Procedure 12(b)(6), arguing that Mr. Gharb's complaint
failed to state a plausible claim for direct or indirect
infringement as a matter of law. See Motion to
Dismiss, Gharb I, 2012 WL 1986435 (N.D.Ill. 2012)
(No. 10-7204), ECF No. 23; Memorandum in Support of Motion to
Dismiss at 5-12, Gharb I, 2012 WL 1986435 (N.D.Ill.
2012) (No. 10-7204), ECF No. 24. The court granted MEAU's
motion and found that Mr. Gharb's complaint failed to
state a claim for direct or indirect infringement as a matter
of law. See Gharb I, 2012 WL 1986435, at
*7. Mr. Gharb's complaint was dismissed with prejudice.
six months later, Mr. Gharb filed a complaint in the United
States Court of Federal Claims, alleging that MELCO, MEAU,
the United States, the U.S. Department of Commerce, the State
of Japan, the Ministry of Commerce of Japan, and two
individuals involved in Gharb I (Judge Edmond Chang,
and MELCO's lead counsel, Terrence J. Traux) infringed
the '654 patent. See Complaint at 1, Gharb
II, 112 Fed.Cl. 94 (No. 12-0913), ECF No. 1. The United
States moved to dismiss the complaint, and the court
dismissed the case with prejudice. See Gharb
II, 112 Fed.Cl. at 98. The claims against the Mitsubishi
defendants were dismissed because the Court of Federal Claims
lacks jurisdiction over claims against private corporations.
See id. at 96-97 (" The only proper
defendant for any matter before this court is the United
States . . . ." (alteration and internal quotation marks
omitted) (quoting Stephenson v. United States, 58
Fed.Cl. 186, 190 (Fed. Cl. 2003))).
two years later, Mr. Gharb filed a new complaint in this
Court in March 2015, alleging once again that MELCO, MEAU,
and now five individuals formerly or currently employed with
MELCO in Japan have infringed the '654 patent.
See Compl. 2-3. Defendants MELCO and MEAU now move
to dismiss the complaint on three grounds. First, MELCO and
MEAU argue that Mr. Gharb's claims are barred by the
doctrine of res judicata. See Mem. Supp. Defs.'
Mot. Dismiss 7-9, ECF No. 5. Second, MELCO and MEAU contend
that the complaint fails to state a claim under Federal Rule
of Civil Procedure 12(b)(6). See id. at 6,
9-11. Third, MELCO and MEAU explain that the '654 patent
expired in 2007, and Mr. Gharb's time period for
enforcing the '654 patent elapsed six years later on
April 22, 2013. See id. at 9. Finally,
MELCO and MEAU also request that the Court award
attorney's fees to MELCO and enter an anti-suit
injunction barring Mr. Gharb from suing MELCO in any court.
See id. at 12-13.
Gharb responds with the same claims he alleged in his
original complaint. See Pl.'s Answer Defs. Mot.
Dismiss 13, ECF No. 8. Mr. Gharb has also filed two "
Requests for payment of damages" that assert no new
claims. See Pl.'s Request for Payment of
Damages, ECF No. 9; Pl.'s Second Request for Payment of
Damages, ECF No. 11. Lastly, Mr. Gharb has filed a "
Lawsuit against Mr Joshua M Segal and Jenner & Block"
with the Court, appearing to seek to add as defendants the
law firm of Jenner & Block and Joshua Segal, MELCO's
counsel in this case. See ECF No. 13. Defendants
have filed a motion to strike Mr. Gharb's filing as
" frivolous." See Defs.' Mot. Strike,
ECF No. 14; Mem. Supp. Defs.' Mot. Strike 1-2, ECF No.
the Court agrees with Defendants' view of the case, the
Court will dismiss Mr. Gharb's complaint, grant MELCO and
MEAU's motion to strike, grant MELCO and MEAU's
request for attorney's fees, and grant MELCO and
MEAU's request for an anti-suit injunction. The Court
will deny as moot Mr. Gharb's requests for payment of
MOTION TO DISMISS
Standard of Review
Federal Rules of Civil Procedure require that a complaint
contain " a short and plain statement of the claim"
in order to give the defendant fair notice of the claim and
the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2);
accord Erickson v. Pardus, 551 U.S. 89, 93,
127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). A
motion to dismiss under Rule 12(b)(6) does not test a
plaintiff's ultimate likelihood of success on the merits;
rather, it tests whether a plaintiff has properly stated a
claim. See Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Brewer v.
District of Columbia, 891 F.Supp.2d 126, 130 (D.D.C.
2012). A court considering such a motion presumes that the
complaint's factual allegations are true and construes
them liberally in the plaintiff's favor. See,
e.g., United States v. Philip Morris, Inc., 116
F.Supp.2d 131, 135 (D.D.C. 2000). It is not necessary for the
plaintiff to plead all elements of his prima facie case in
the complaint. See Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1
(2002); Bryant v. Pepco, 730 F.Supp.2d 25, 28-29
" [t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell
A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)). This means that a plaintiff's
factual allegations " must be enough to raise a right to
relief above the speculative level on the assumption that all
the allegations in the complaint are true (even if doubtful
in fact)." Bell A. Corp. v. Twombly, 550 U.S.
544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(citations and footnote omitted). " Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements," are therefore insufficient to
withstand a motion to dismiss. Iqbal, 556 U.S. at
678. A court need not accept a plaintiff's legal
conclusions as true, see id., nor must a court
presume the veracity of the legal conclusions that are
couched as factual allegations, see
Twombly, 550 U.S. at 555.
pro se complaint is held to " less stringent
standards than formal pleadings drafted by lawyers."
Erickson, 551 U.S. at 94 (internal quotation mark
omitted) (quoting Estelle v. Gamble, 429 U.S. 97,
106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). But even pro
se litigants " must plead 'factual matter'
that permits the court to infer 'more than the mere
possibility of misconduct.'" Jones v.
Horne, 634 F.3d 588, 596, 394 U.S.App.D.C. 261 (D.C.
Cir. 2011) (internal quotation marks omitted) (quoting
Atherton v. D.C. Office of the Mayor, 567 F.3d 672,
681-82, 386 U.S.App.D.C. 144 (D.C. Cir. 2009)). Moreover,
" [a] pro se complaint, like any other, must present a
claim upon which relief can be granted." Crisafi v.
Holland, 655 F.2d 1305, 1308, 211 U.S.App.D.C. 75 (D.C.
Cir. 1981) (per curiam).
Gharb's claims against Defendant MEAU are barred by the
doctrine of res judicata, which bars "
successive litigation of the very same claim, whether or not
relitigation of the claim raises the same issues as the
earlier suit." Taylor v. Sturgell, 553 U.S.
880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (internal
quotation marks omitted) (quoting New Hampshire v.
Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d
968 (2001)). Under the doctrine of res judicata, a
claim " will be barred if there has been prior
litigation (1) involving the same claims or cause of action,
(2) between the same parties or their privies, and (3) there
has been a final, valid judgment on the merits, (4) ...