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Swartz v. Bahr

United States District Court, D. Massachusetts

June 22, 2017

MITCHELL SWARTZ, Plaintiff,
v.
ROBERT W. BAHR et al., Defendants.

          ORDER ON DEFENDANTS' MOTION TO DISMISS (DOC. NO. 35) AND OTHER PENDING MOTIONS

          Leo T. Sorokin United States District Judge.

         Pro se plaintiff Mitchell Swartz filed a seventy-five-page Amended Complaint alleging twenty-one claims against eight employees and officials of the United States Patent and Trademark Office (“USPTO”) in their individual and official capacities. Doc. No. 7. The defendants seek dismissal of the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b). Doc. Nos. 35, 36. Swartz opposes the motion.[1] Doc. No. 37. Also pending are a series of motions filed by Swartz, and a request by the defendants to expedite disposition of their motion to dismiss. Doc. Nos. 53, 54, 57, 58, 61, 64, 66. For the reasons that follow, the motion to dismiss is ALLOWED, and the other motions are resolved as described below.

         I. BACKGROUND

         Swartz's claims center on his submission - and the USPTO's denial - of six patent applications for inventions related to clean energy. He alleges the eight defendants, while involved in the review and denial of his applications between December 2000 and July 2012, mishandled evidence, lied, and acted improperly in various other ways. Swartz has appealed the denial of each disputed patent application to the Patent Trial and Appeal Board (“PTAB”), which had issued no determination at the time Swartz filed his Amended Complaint.

         The claims Swartz has alleged are: (1) negligence; (2) breach of contract; (3) violations of the USPTO's Code of Professional Responsibility; (4) discrimination in violation of the Equal Protection Clause; (5) denial of due process; (6) violation of his civil rights; (7) a federal criminal conspiracy against his civil rights; (8) violation of his constitutional rights under the Privileges and Immunities Clause; (9) obstruction of justice in violation of federal criminal law; (10) making false statements in violation of federal criminal law; (11) a federal criminal conspiracy to defraud; (12) mail fraud in violation of federal criminal law; (13) misprision of a felony in violation of federal criminal law; (14) a racketeering conspiracy in violation of federal criminal law; (15) a civil conspiracy to defraud; (16) extortion in violation of federal criminal law; (17) conspiracy to commit an offense against the United States in violation of federal criminal law; (18) stalking in violation of federal criminal law; (19) tampering with a witness in violation of federal criminal law; (20) retaliation in violation of federal criminal law; and (21) defamation.

         II. DISCUSSION

         The defendants invoke four theories of dismissal available under Rule 12(b) - lack of subject-matter jurisdiction, lack of personal jurisdiction, defects in service, and failure to state a claim. Fed.R.Civ.P. 12(b)(1), (2), (5), (6). Each of Swartz's claims fails for one or more of these reasons, which the Court will address in the order they are presented in the defendants' motion.[2]

         A. Individual-Capacity Claims

         Swartz brings claims against all eight defendants in both their official and individual capacities. He served the defendants by leaving separate service packages for each of them at the USPTO. See Doc. Nos. 12-19 (reflecting each package was left with Melvin Birch, who is described as “a clerk for the Office of General Counsel” for the USPTO and who “accepted on behalf of the employee”). Such service is insufficient in a suit asserting claims against United States employees in their individual capacities.

         “To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e) . . . .” Fed.R.Civ.P. 4(i)(3) (emphasis added). Pursuant to Rule 4(e), an individual defendant may be served by: “delivering a copy of the summons and of the complaint to the individual personally”; “leaving a copy of [the summons and complaint] at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there”; or “delivering a copy of [the summons and complaint] to an agent authorized by appointment or by law to receive service of process.” Fed.R.Civ.P. 4(e)(2). The burden is on Swartz to prove that the service was proper. Rivera-Lopez v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992).

         Swartz has offered no proof that he served the individual defendants personally, at their homes, or via an agent authorized to accept service on their behalf in their individual capacities. Rule 4(e) does not permit service of an individual by leaving the required documents at his place of business, rather than his home. Figueras v. Autoridad de Energia Electrica, 553 F.Supp.2d 43, 44 (D.P.R. 2007). There is nothing to prove or permit an inference that any of the eight individual defendants named in Swartz's complaint have appointed Melvin Birch specifically, or the USPTO's Office of General Counsel generally, to accept service on their behalf of in matters brought against them personally. Absent such proof, Swartz has not met his burden of establishing that his service of process in this case satisfies Rule 4(e). See Donnelly v. UMass Corr. Med. Program, No. 09-cv-11995-RGS, 2010 WL 1924700, at *1 (D. Mass. May 11, 2010) (explaining “a person cannot innocently accept service of process on behalf of a coworker without having been explicitly given such authority”). Accordingly, the Amended Complaint is dismissed as to the individual defendants for lack of service.[3]

         Even if Swartz had served the defendants in the manner required by Rule 4, this Court lacks personal jurisdiction over the defendants in their individual capacities. Where a defendant challenges a lawsuit on the basis of personal jurisdiction, the burden is on the plaintiff to establish that such jurisdiction exists. Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009). Here, Swartz must demonstrate that the Massachusetts long-arm statute is satisfied, “and that the exercise of jurisdiction under the statute is consistent with the Due Process Clause of the United States Constitution.” Id. Swartz has shown neither.

         The record contains no proof that any of the defendants reside or own property in Massachusetts, regularly transact business or supply services here, caused injury through an act or omission undertaken here, profits from the sale of goods or services here, or is otherwise within the reach of the Massachusetts long-arm statute.[4] See Mass. Gen. Laws ch. 223A, § 3. The events at issue here concern patent applications submitted to and acted upon by the USPTO, located in Virginia. Swartz's failure to allege as to any individual defendant, either in the Amended Complaint or in response to the motion to dismiss, the type of connection or conduct that would support a finding of personal jurisdiction over any defendant in the District of Massachusetts subjects his individual-capacity claims to dismissal under Rule 12(b)(2).

         B. Tort Claims

         Three of Swartz's claims - counts 1, 15, and 21 - sound in tort. He may pursue such claims only if they fall within the “limited waiver of the federal government's sovereign immunity with respect to private causes of action sounding in tort” provided for in the Federal Tort Claims Act (“FTCA”). Fothergill v. United States, 566 F.3d 248, 252 (1st Cir. 2009). Otherwise, this Court lacks jurisdiction as to those three claims.

         Before bringing a tort claim against the United States, the FTCA requires a claimant to exhaust available administrative remedies. 28 U.S.C. § 2675(a); McNeil v. U.S., 508 U.S. 106, 113 (1993). Swartz has provided no evidence demonstrating he presented his tort claims to the USPTO, the relevant administrative agency in these circumstances. In fact, the defendants have offered affirmative proof that he has not satisfied this requirement. Doc. No. 36-1 at 3. In these circumstances, this Court lacks subject matter jurisdiction over Swartz's tort claims. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. ...


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