United States District Court, D. Massachusetts
ORDER ON DEFENDANTS' MOTION TO DISMISS (DOC. NO.
35) AND OTHER PENDING MOTIONS
Sorokin United States District Judge.
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. 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.
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
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.
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.
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
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.
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.
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
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. 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
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.
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. ...