United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE
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.
Background and Allegations
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.
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.
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)).
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.
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
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.
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).
Plaintiff fails to state a claim for injury to any
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 ...