The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT MARTIN,
Plaintiff,
v. Case No. 3:24-cv-1434-NJR
USA WIRELESS AT&T, PRE-SONUS
CORPORATION, SENNHEISER
ELECTRONICS HEAD QUARTERS,
NADY SYSTEMS INC., FRED
POOL/PEAVEY ELECTRONICS
CORPORATION, SURE
HEADQUARTERS, LINE 6 POD INC.,
BOSS WIRELESS, AND BOSS
WIRELESS LLC,
Defendants.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
In 2000, Plaintiff Robert (Bobby) Martin, a Vietnam veteran and resident of Marion,
Illinois, allegedly invented a “Wireless Pedal Board.” (Doc. 5-1 at p. 2). In his application
to the U.S. Patent and Trademark Office, Martin described the Wireless Pedal Board as a
“wireless communication system used to connect a musical instrument to a pedal board,
transmitting a signal to a main base by way of radio frequency through a receiver and
transmitter.” (Doc. 5-1 at p. 2).
Martin, proceeding pro se, is now suing a number of defendants—corporations
primarily engaged in the technology, electronic, and audio production industries—for
patent and copyright infringement related to his Wireless Pedal Board. (Doc. 3). Martin
seeks $35 million in damages from each defendant. (Id.). Defendants PreSonus
Corporation, Sennheiser Electronics, Sure Headquarters, Fred Pool/Peavey Electronics
Corporation, and Line 6 Pod have filed motions to dismiss. (Docs. 16, 20, 22, 32, 43).
Martin has filed motions for entry of default and for default judgment as to the
defendants who did not timely answer his Complaint—Nady Systems, Inc., Fred
Poole/Peavey Electronics Corporation, Boss Wireless, and USA Wireless AT&T.
(Docs. 41, 45, 46, 47).
Defendants’ motions to dismiss are granted. Because Martin was never awarded
a patent for the Wireless Pedal Board, he lacks standing to bring his patent claim in
federal court. Martin has further failed to state a claim for copyright infringement under
Federal Rule of Civil Procedure 12(b)(6). Finally, because Martin did not serve the
Defendants in compliance with the Federal Rules and applicable state laws, his motions
for entry of default and for default judgment are denied.
BACKGROUND
Martin filed this patent and copyright infringement action on June 3, 2024.1
(Doc. 3). Martin asserts that he invented a Wireless Pedal Board, which allows users to
connect a musical instrument to a pedal board to transmit audio without the use of wires.
(Id. at p. 1). On February 20, 2004, Martin registered the “texts and drawings” associated
with the Wireless Pedal Board with the U.S. Copyright Office. (Doc. 5 at p. 1).
1 Both Martin and Defendants have provided a number of exhibits that relate to the Complaint. At the
motion to dismiss stage, a court may consider “the complaint itself, documents that are attached to the
complaint, [and] documents that are central to the complaint and referred to in it . . . .” Williamson v. Curran,
714 F.3d 432, 436 (7th Cir. 2013). Because the additional documents are central to the Complaint and provide
context to an otherwise bare bones pleading, the Court will consider their contents.
Approximately 14 years later, on April 24, 2018, Martin filed an application to
patent his invention with the U.S. Patent and Trademark Office (“USPTO”). (Doc. 5-2
p. 1). On May 16, 2018, the USPTO sent Martin a filing receipt and explained that his
patent application, Number 15/960,651, would be taken up for examination in due
course. (Id.). Martin also was granted a Foreign Filing License under 35 U.S.C. § 184,
which allowed him to apply for patent protection outside of the United States without
having to wait the six-month period described in 35 U.S.C. § 184(a). (Id.). Along with his
patent application, Martin filed a petition to advance his patent examination under 37
C.F.R. § 1.102(c)(1) due to his age. (Id. at p. 4). Because his petition included a statement
that Martin was 65 or over, his petition for special status was granted. (Id.).
On September 18, 2018, Martin participated in an interview with an examiner from
the USPTO. (Doc. 20-1 p. 4). During this interview, the examiner explained that Martin’s
claim was “too broad” and that his specification was “not detailed enough to distinguish
the present invention over the prior art.” (Id.). The examiner described ways that Martin
could remedy those problems. (Id.). The examiner also informed Martin that he had three
months from the mailing of the “non-final office action” to file a response. (Id.).
On March 19, 2019, a Notice of Abandonment was issued, indicating that Martin
had failed to file a timely response to the USPTO’s letter mailed on October 11, 2018. (Id.
at p. 7). The Notice of Abandonment stated that the examiner called Martin, but no return
call was made. (Id.).
On July 9, 2024, after Martin filed this action and four Defendants filed motions to
dismiss, Martin filed a Petition for Revival of Application for Patent Abandoned
Unintentionally under 37 C.F.R. 1.137(a). (Doc. 39 at pp. 1, 3-4). Martin stated that he was
unable to respond in a timely manner to the USPTO’s letter due to having COVID-19
twice, several deaths within his family, and his status as a disabled Vietnam veteran. (Id.
at p. 1).
ANALYSIS
I. Martin Lacks Standing to Bring His Patent Infringement Claim
“Article III of the Constitution limits the jurisdiction of the federal courts to ‘Cases’
and ‘Controversies.’” Pierre v. Midland Credit Management, Inc., 29 F.4th 934, 937 (7th Cir.
2022); U.S. CONST. art. III, § 2. Standing to sue is an essential component of this case-or-
controversy limitation. Id. To show Article III standing, “a plaintiff must demonstrate
(1) that he or she suffered an injury in fact that is concrete, particularized, and actual or
imminent, (2) that the injury was caused by the defendant, and (3) that the injury would
likely be redressed by the requested judicial relief.” Choice v. Kohn Law Firm, S.C., 77 F.4th
636, 638 (7th Cir. 2023); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). At the
pleading stage, a plaintiff must clearly allege facts demonstrating each element affording
them standing to sue. Spokeo Inc. v. Robbins, 578 U.S. 330, 338 (2016). Simply put, without
an injury caused by the defendant that the court can remedy, there is no case or
controversy for a federal court to resolve. Pierre, 29 F.4th at 937.
“Much like standing, ripeness gives effect to Article III’s Case or Controversy
requirement by ‘prevent[ing] the courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements.’” Sweeney v. Raoul, 990 F.3d 555,
559-60 (7th Cir. 2021) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)). Ripeness
is a question of timing; a court must consider “both the fitness of the issues for judicial
decision and the hardship to the parties of withholding court consideration.” Id. at 560.
Here, it is clear that there is no justiciable case or controversy with regard to
Martin’s claim of patent infringement. Although Martin applied for a patent and had an
interview with a patent examiner, a patent was never issued for his Wireless Pedal Board.
Martin admitted as much when he filed his petition to revive his patent application after
Defendants pointed out the lack of a validly issued patent. Even if Martin’s application
were to be revived, “[j]usticiability must be judged as of the time of filing, not as of some
indeterminate future date when the court might reach the merits and the patent has
issued.” GAF Bldg. Materials Corp. v. Elk Corp. of Dallas, 90 F.3d 479, 482 (Fed. Cir. 1996);
see also Ogden v. Dyco, Inc., No. 09-CV-124-WDS, 2010 WL 11685277, at *2 (S.D. Ill. Mar.
22, 2010) (dismissing case because “no case or controversy for patent infringement arises
under the patent laws before a patent issues”).
Because Martin does not have a patent for the subject Wireless Pedal Board, there
is no justiciable case or controversy as to his claim of patent infringement. Accordingly,
this Court lacks subject matter jurisdiction over his patent claims.
II. Martin Has Not Stated a Claim for Copyright Infringement
When evaluating a motion to dismiss under Rule 12(b)(6), the Court must consider
whether the complaint states a claim for relief that is “plausible” on its face. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility requires more than labels and
conclusions; the allegations must allow the court to reasonably infer that a defendant is
liable on the assumption that all the allegations in the complaint are true, “even if
doubtful in fact.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550 U.S. at 555
(internal citations omitted). While the court accepts as true all well-pleaded facts and
draws reasonable inferences in the plaintiff’s favor, it does not accept legal conclusions.
Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 504 (7th Cir. 2013).
To state a claim for copyright infringement, a plaintiff must show: (1) “ownership
of a valid copyright” and (2) “unauthorized copying” of the copyrighted work’s
“original” elements. Weller v. Flynn, 312 F. Supp. 3d 706, 718 (N.D. Ill. 2018) (quoting
Peters v. West, 692 F.3d 629, 632 (7th Cir. 2012)). To satisfy the second element, a plaintiff
must show the defendants “actually copied” his work. Id. (citing Design Basics, LLC v.
Lexington Homes, Inc., 858 F.3d 1093, 1099 (7th Cir. 2017)). “Because direct evidence of
copying is rarely available, a plaintiff may prove copying by showing that the defendant
had the opportunity to copy the original (often called ‘access’) and that the two works are
‘substantially similar.’” Id. (citation omitted). An inference of access may also arise from
“proof of similarity which is so striking that the possibilities of independent creation,
coincidence and prior common source are, as a practical matter, precluded.” Id. (quoting
Design Basics, 858 F.3d at 1100).
Here, even assuming that Martin has properly pleaded ownership of a valid
copyright, he has failed to allege that any Defendant copied his work. Martin merely uses
the word “copyright infringement” in his Complaint and refers the Court to his
“Addendum” and “Evidence.” (Doc. 3). But neither of these documents contains factual
allegations that plausibly suggest Defendants infringed on a copyright. They actually
contain no factual allegations at all. Because Martin has not alleged facts demonstrating
that Defendants copied his copyrighted work without authorization, his claim is
dismissed.
III. Improper Service of Process
Finally, Martin’s motions for default judgment must be denied because he did not
properly serve Defendants.
Rule 4 requires a plaintiff to ensure that each defendant receives a summons and
copy of the complaint against it. FED. R. CIV. P. 4(b), (c)(1). Service of the summons and
complaint can be effectuated by “[a]ny person who is at least 18 years old and not a
party.” FED. R. CIV. P. 4(c)(2). A corporation can be served by either “following state law
for serving a summons in an action brought in courts of general jurisdiction in the state
where the district court is located or where service is made,” FED. R. CIV. P. 4(h)(1)(A), or
“by delivering a copy of the summons and of the complaint to an officer, a managing or
general agent, or any other agent authorized by appointment or by law to receive service
of process.” FED. R. CIV. P. 4(h)(1)(B).
Martin seeks an entry of default as to Defendants Nady Systems, Inc., Fred
Poole/Peavey Electronics Corporation, Boss Wireless, and USA Wireless AT&T because
he served these entities “by mail, restricted delivery, return receipt requested on June 9,
2024,” and they never answered his Complaint. (Docs. 41, 45, 46, 47). First, Martin’s
attempt at service violates Rule 4(c)(2) because he is a party to this action. Thus, under
the Federal Rules, Defendants were not properly served.
Second, Martin shipped a copy of the complaint and summons to all Defendants
via UPS. (Docs. 12, 14). That method of service on a corporation is insufficient in Illinois,
where this District Court is located. Under Illinois law, a corporation may be served by
“leaving a copy of the process with its registered agent or any officer or agent of the
corporation found anywhere in the State.” 735 ILCS 5/2–204. “Certified mail is . . . not
listed as an appropriate method of serving corporations in the text of the Federal Rules
or the relevant [Illinois] statutes.” Goode v. PennyMac Loan Servs., LLC, No. 14 C 01900,
2014 WL 6461689, at *9 (N.D. Ill. Nov. 18, 2014).
Martin purported to serve the CEO of Defendant Nady Systems, Inc., in Illinois
and a Product Manager in California. (Doc. 14 at pp. 6, 19, 37). As noted above, service
on a corporation via mail is insufficient in Illinois. In California, service on a corporation
is permitted by mail when it is addressed to “the president, chief executive officer, or
other head of the corporation, a vice president, a secretary or assistant secretary, a
treasurer or assistant treasurer, a controller or chief financial officer, a general manager,
or a person authorized by the corporation to receive service of process.” CAL. CIV. P. CODE
§§ 415.30, 416.10. The defendant also must complete the acknowledgement of receipt and
return it to the plaintiff. Id.; Prout v. Costco, No. 24-CV-703 JLS (DEB), 2024 WL 2060143
(S.D. Cal. May 8, 2024) (“A plaintiff can serve a corporate defendant by mail under
§ 415.30—without first resorting to other methods—if he sends the correct documents to
an appropriate corporate representative as identified in § 416.10. That said, service
pursuant to § 415.30 is valid only if the defendant completes the acknowledgement of
receipt and returns it to the plaintiff.”). Here, there is no evidence that Martin served the
appropriate individual in California or that any representative of Nady Systems, Inc.,
completed the acknowledgement of receipt and returned it to Martin.
With regard to Fred Poole/Peavey Electronics Corporation, the Court notes that a
summons was only issued for Fred Poole, an employee of Peavey, not the corporation
itself. (Doc. 9). Thus, service of the summons upon Peavey cannot be valid. Moreover,
Martin sent the documents via UPS to a generic address for Peavey in Mississippi. Under
Mississippi law, a corporation may be served by first-class mail with a copy of the
summons and complaint, along with two copies of a notice and acknowledgment. MISS.
R. CIV. P. 4(c)(3)(A). The defendant must then return the acknowledgment. If the person
or entity being served by mail does not return the acknowledgment to the plaintiff within
20 days “after the date of mailing, service of such summons and complaint may be made
in any other manner permitted by” MISS. R. CIV. P. 4(c)(3)(B). Again, there is no evidence
that Peavey returned an acknowledgement to Martin.
As to Boss Wireless, Martin purported to serve it via UPS at an address in Virginia.
(Doc. 14 at p. 28). In Virginia, only a “person 18 years of age or older and who is not a
party or otherwise interested in the subject matter in controversy” is authorized to serve
process. VA. CODE. § 8.01-293. Martin is a party to this proceeding, so he was not
authorized to serve Boss in Virginia. Thus, service was defective.
Finally, as to USA Wireless AT&T, Martin purportedly served that corporation in
Florida.2 In Florida, however, “[a]ll process shall be served by the sheriff of the county
where the person to be served is found” or by a designated special process server. FLA.
2 Martin also purportedly attempted to serve “AT&T Corporate Head Quarters” in Texas, but the named
defendant for whom summons was issued is “USA Wireless AT&T.” (Doc. 9). The Court received a notice
from counsel for AT&T Mobility LLC that one of its wireless dealers received mailed copies of Martin’s
pleadings in this case. (Doc. 25). The Director of Sales Operations attested that AT&T has no corporate
interest in USA Wireless, nor is AT&T authorized to accept service on USA Wireless’s behalf. (Doc. 25-1).
STAT. § 48.021. Martin did not comply with Florida’s service statute; therefore his attempt
to serve USA Wireless AT&T failed.
Because Martin did not properly serve Defendants Nady Systems, Inc., Fred
Poole/Peavey Electronics Corporation, Boss Wireless, and USA Wireless AT&T,
Defendants are not in default, and Martin’s Motion for Entry of Default (Doc. 41) and
Motions for Default Judgment (Docs. 45, 46, 47) must be denied.
CONCLUSION
For these reasons, the Motions to Dismiss filed by Defendants PreSonus
Corporation, Sennheiser Electronics, Sure Headquarters, Fred Pool/ Peavey Electronics
Corporation, and Line 6 Pod (Docs. 16, 20, 22, 32, 43) are GRANTED. This Court lacks
subject matter jurisdiction over Plaintiff Robert Martin’s patent claim, and Martin has
failed to state a claim under Rule 12(b)(6) for copyright infringement.
Martin’s Motion for Entry of Default (Doc. 41) and Motions for Default Judgment
(Docs. 45, 46, 47) are DENIED.
The Clerk of Court is DIRECTED to enter judgment of dismissal without prejudice
and close this case.
IT IS SO ORDERED.
DATED: February 7, 2025 T|
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
Page 10 of 10