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Bondyopadhyay v. The U.S. Secretary of Defense

United States District Court, S.D. Texas, Houston Division

July 9, 2019

PROBIR BONDYOPADHYAY Plaintiff,
v.
THE U.S. SECRETARY OF DEFENSE Defendant.

          MEMORANDUM AND RECOMMENDATION

          FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE

         Before the Magistrate Judge, upon referral from the District Judge, is Defendant the United States Secretary of Defense's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Document No. 10). Plaintiff, appearing pro se, has responded to the motion (Documents No. 12, 13, 18), and has also filed several "Motions," that are, in fact, additional responses to Defendant's Motion to Dismiss. See "Plaintiffs Second Motion for a Court Order" (Document No. 8); "Subject: Injury in Fact Plaintiffs Important Motion for Judicial Attention" (Document No. 9); "Plaintiffs Important Motion for Judicial Attention" (Document No. 11); "Nothing But The Truth Plaintiffs Motion for Enforcement of the Constitutional Order Reaffirmed by the Defendant's Admission on December 17, 2018 (sentences 40 and 41)" (Document No. 14); "Enforcement of The Constitutional Order (Reaffirmed by the Honorable U.S. Attorney's Admission on 12/17/2018 (sentences 40 and 41) Plaintiffs Motion for Immediate Attention" (Document No. 15); "Plaintiffs Motion for Oral Hearing" (Document No. 16); "Plaintiffs Motion for Immediate Declaratory Relief (Under Title 28 USC Section 1338(a)" (Document No. 20); "Plaintiffs Motion for Immediate Removal of Ms. Ariel Nicole Wiley (AUSA) From This Case" (Document No. 24); "Plaintiffs Motion for Immediate Judicial Attention" (Document No. 25); "Establishment of Constitutional Order" (Document No. 26); and "Plaintiffs Further Response (Nothing But The Truth)" (Document No. 28). Defendant has responded to Plaintiffs filings. (Document No. 27). In addition, Plaintiff has moved for alternative dispute resolution. (Document No. 7). Having considered the Motions, and the applicable law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Defendant's Motion to Dismiss be GRANTED, that Plaintiffs Motions be DENIED, and that Plaintiffs Complaint be dismissed with prejudice.

         I. Background and Allegations

         The instant action relates to Probir Kumar Bondyopadhyay's ("Bondyopadhyay" or "Plaintiff) invention called the Geodesic Sphere Phased Array Antenna System ("GSPAAS"), for which he owns Patent No. 6, 292, 134 ("the "Patent"). On October 16, 2018, Plaintiff, proceeding pro se, filed his complaint, alleging that "Defendant has violated the Constitutional EXCLUSIVE RIGHT of the Plaintiff Inventor Owner for LIMITED TIMES: September 18, 2001 through October 11, 2012, a period of eleven years and twenty three days." (Document Nos. 1, p. 7, ¶ 6.3)(capital letters in original). Plaintiff alleges that he is "SIMULTANEOUSLY the Inventor and continuous sole owner"of the Patent; that "this patent is live and its limited times for exclusive right cover the continuous time period September 18, 2001 through September 18, 2021;" and that the Patent is "Plaintiffs magnum opus. This patent is for U.S. National Defense and is dedicated to modernization of the U.S. Air Force Satellite Control Network (AFSCN)." (Document No. 1, p. 3)(capital letters, holding, and underlining in original). Plaintiff alleges that "[t]his case originated from a violation of Title 15 U.S. C Section 638a and 638b at the Small Business Innovation Research (SBIR) program (procurement fraud) of the U.S. Air Force Research Laboratory (AFRL) in the fiscal years FY99 through FYO2 and beyond through FY12 onwards." (Document No. l, p.4, 5). Plaintiff further alleges that the U.S. Defense Department's highest civilian honor was falsely bestowed on U.S. Air Force civil- servant engineer, Dr. Boris Tomasic, "the false and bogus inventor, and in so doing, Defendants made a 'FALSE' statement in a press release: Tomasic invented and led the development of a revolutionary new antenna" and that this "false" statement was ultimately included in the Court's October 23, 2013, Order filed in one of Plaintiff s previous lawsuits involving the same Patent. (Document No. 1, p. 5 & 7 & Appendix B Defining Document-2, p. l4)(emphasis in original). Plaintiff seeks judicial affirmation of the fact that he is the inventor and owner of the Patent, and that "the truth will set him free." (Document No. 1, p. 8). Defendant seeks dismissal of all of Plaintiff s claims because Plaintiff lacks standing to sue Defendant, and also fails to allege sufficient facts to state a plausible cause of action.

         II. Applicable law

         Fed.R.Civ.P. 12(b)(1) allows a party to move for dismissal of a complaint based on lack of subject matter jurisdiction. '"A case is property dismissed under Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the case.'" Taylor v. Texas Southern Univ., Civ. A. No. 12-Cv-01975, 2013 WL3157529, at *2) (S.D. Tex. June20, 2Ol3)(quoting Home Builder's Assoc, of Mississippi, Inc. v. City of Madison, Mississippi, 143 F.3d 1006, 1010 (5th Cir. 2014). "The basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot be established argumentatively or by mere inference." Getty Oil Corp. v. Inc. Co. of N.A., 841 F.2d 1254, 1259 (5th Cir. l988)(citing///. Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 636 & n.2 (5thCir. 1983)). The party asserting federal jurisdiction bears the burden of proving jurisdiction. In re FEMA Trailer Formaldehyde Prod. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011). In considering a motion to dismiss for lack of jurisdiction, the court may consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Montez v. Dept' of Navy, 392 F.3d 147 F.3d 147, 149 (5th Cir. 2004). "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A dismissal under Rule 12(b)(1) is without prejudice because "it is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction." Ramming, 218 F.3d at 161.

         Fed.R.Civ.P. 12(b)(6) allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 8(a) requires that each claim contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Because Defendant has filed a Rule 12(b)(6) motion, the undersigned Magistrate Judge construes the complaint in favor of the Plaintiff and has accepted as true all well-pleaded facts. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (citing Gonzales v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)). "To 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 (2OO9)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible if the complaint contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Plausibility will not be found where the claim alleged in the complaint is based solely on legal conclusions, or a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. In addition, plausibility will not be found where the complaint "pleads facts that are merely consistent with a defendant's liability" but "stops short of the line between possibility and plausibility" or where the complaint is made up of '"naked assertions devoid of further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)). The Supreme Court has further held that plausibility, not sheer possibility or even conceivability, is required to survive a Rule 12(b)(6) motion to dismiss. Twombly, 550 U.S. at 556-557; Iqbal, 556 U.S. at 678-680. "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" under Rule 12(b). Iqbal, 556 U.S. at 678. Therefore, a Plaintiff must plead specific facts, not merely conclusory allegations to avoid dismissal. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). A court is not bound to accept as true "a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). A pro se plaintiffs pleadings are liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976). That said, if the court determines that a plaintiff has pleaded his best case, a court does not err is dismissing a pro se complaint with prejudice. Jones v. Greninger, 188 F.3d 322, 326-27 (5thCir. l999)(citing Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)).

         Defendant argues that Plaintiff lacks standing to sue for patent-related claims; and that the claims for "judicial affirmation" are vague and conclusory and should be dismissed for failure to state a plausible claim upon which relief may be granted. The Magistrate Judge agrees.

         To establish constitutional standing, '" [a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief" Hein v. Freedom from Religion Found., 551 U.S. 587, 598 (2007)(quotingAllen v. Wright, 468 U.S. 737, 751 (1984)). The standing requirements for patent suits are outlined in 35 U.S.C. § 281. A plaintiff has constitutional standing to bring a patent action if it shows: (1) injury to the plaintiff, (2) that the injury is fairly traceable to the alleged misconduct of the defendant, and (3) that a favorable decision is likely to redress the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Home v. Mores, 557 U.S. 433, 445 (2009).

         III. Discussion

         A. Plaintiff has failed to allege an injury in fact regarding his patent claim This is Plaintiffs fifth action filed in the Southern District of Texas relating to the Patent. Plaintiff claims to be injured by the Court's October 23, 2013, Order that purportedly misidentifies Dr. Boris Tomasic as the inventor of GSPAAS. Defendant argues, and the Magistrate Judge agrees, that Plaintiff lacks an injury-in-fact because he has not shown that his patent-ownership rights have been violated by this statement such as to cause him a concrete or future injury. The correspondence identifying Dr. Boris Tomasic as the inventor of GSPAAS does not involve acts of infringement because it does not involve the use, marketing, selling, or unauthorized production of GSPAAS. Defendant further concedes, in pertinent part, that Plaintiff "is the original inventor" who "has rights to the patent" and there are no allegations that Defendant is "threatening any future infringement of the patent." (Document No. 10, p. 4). In sum, Defendant argues, and the Magistrate Judge agrees, that Plaintiffs patent claim must be dismissed because he has not, and cannot, show injury or standing to bring the instant action.

         To the extent that Plaintiff purports to assert jurisdiction and distinguish the instant action from his 2013 action by pointing to the civil filing cover sheet, the assertion of jurisdiction on the cover sheet does not establish jurisdiction. See, e.g., Gonzalez v. Wal-Mart Stores, Texas, LLC, No. H-14-2880, 2015 WL 3613648, at *4 (June 9, 2Ol5)(checking a box on a civil cover sheet is not sufficient to state a claim as it is not a live pleading); Buggs v. Delta Airlines, Inc., No. 3:06-cv-1217-L, 2006 WL 2041362, at *2 (N.D.Tex. July 21, 2006).

         B. Plaintiff fails to state a claim for injury to any constitutional rights

         Plaintiffs remaining allegations are vague and conclusory and fail to state a claim upon which relief may be granted. Plaintiffs complaint and supplemental filings purport to allege "constitutional claims" or claims of "judicial affirmation" to correct the purported misstatement in the Court's 2013 Order that identifies Dr. Boris Tomasic as the inventor of GSPAAS. But the time to appeal the 2013 Order has long passed and this Order, as well as several Orders written ...


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