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Ou-Young v. Rea

United States District Court, Ninth Circuit

November 4, 2013

TERESA S. REA, et al., Defendants.


PAUL S. GREWAL, District Judge.

Before the court are Defendants Teresa S. Rea, Margaret A. Focarino, Donald T. Hajec, Jason J. Boeckmann, and Thurman K. Page's (collectively, "Defendants") motion to dismiss, Plaintiff Kuang-Bao P. Ou-Young's ("Plaintiff") motion for disqualification of the presiding judge, and Plaintiff's motion for summary judgment. Pursuant to Local Civil Rule 7-1(b), the Court concludes that these motions are appropriate for determination without oral argument.[1] Having considered the papers the court DENIES Plaintiff's motion for disqualification of the undersigned judge, GRANTS Defendants' motion to dismiss, and DENIES-AS-MOOT Plaintiff's motion for summary judgment.


This case stems from Plaintiff's disagreement with U.S. Patent and Trademark Office ("PTO") over the patentability of Plaintiff's patent application for "High Volume Dripping Hoses."[2] On July 5, 2013, Plaintiff filed a complaint alleging that Plaintiff's patent application was subject to fabricated anticipation and obviousness rejections to "intimidate plaintiff into abandoning his patent applications."[3] The complaint alleges that the "examiner conspired with the USPTO for the agency to deny plaintiff's petitions for review."[4] Plaintiff now "seeks to hold the examiner and the USPTO accountable for these criminal offenses."[5] Plaintiff also "seeks to recover damages from severe mental stress caused by such criminal practices."[6]


A. Motion to Dismiss Under Rule 12(b)(1)

A motion to dismiss pursuant to Rule 12(b)(1) tests whether a complaint alleges grounds for federal subject matter jurisdiction. A jurisdictional challenge under Rule 12(b)(1) may be facial or factual.[7] Where the attack is facial, the court determines whether the allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction, accepting all material allegations in the complaint as true and construing them in favor of the party asserting jurisdiction.[8] Where the attack is factual, however, "the court need not presume the truthfulness of the plaintiff's allegations."[9] In resolving a factual dispute as to the existence of subject matter jurisdiction, a court may review extrinsic evidence beyond the complaint without converting a motion to dismiss into one for summary judgment.[10]

Once a defendant moves to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the plaintiff bears the burden of establishing the court's jurisdiction.[11] To satisfy this burden the plaintiff must present admissible evidence.[12] The court is presumed to lack subject matter jurisdiction until the plaintiff proves otherwise.[13]

B. Motion to Disqualify

28 U.S.C. § 455(a) provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

C. Summary Judgment

Summary judgment is appropriate only if there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[14] The moving party bears the initial burden of production by identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a triable issue of material fact.[15] If the moving party is the defendant, he may do so in two ways: by proffering "affirmative evidence that negates an essential element" of the nonmoving party's claim, or by demonstrating "the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim."[16] If met by the moving party, the burden of production then shifts to the non-moving party, who must then provide specific facts showing a genuine issue of material fact for trial.[17] The ultimate burden of persuasion, however, remains on the moving party.[18] In reviewing the record, the court must construe the evidence and the inferences to be drawn from the underlying evidence in the light most favorable to the nonmoving party.[19]


A. Motion for Disqualification of the Undersigned Judge

Plaintiff moves for disqualification of the undersigned judge, because the court vacated the initial case management conference on September 6, 2013 and the October 22, 2013 hearing regarding Defendants' motion to dismiss. Plaintiff argues that two orders vacating hearing dates indicate "sufficient bias against plaintiff" to disqualify the undersigned from the present case.[20] In light of the wide discretion afforded to judges of this district pursuant to Civil L.R. 7-1(b) to consider motions on the papers, [21] and the court's inherent authority - and indeed responsibility - to manage its limited resources and docket as efficiently as it can, the court does not find any basis upon which the impartiality of the undersigned "might reasonably be questioned."[22] Plaintiff's motion for disqualification of the undersigned judge is DENIED.

B. Motion to Dismiss Under Rule 12(b)(1)

Defendants argue that Plaintiff's complaint must be dismissed in its entirety because all of Plaintiff's claims are based on Plaintiff's disagreement with the PTO's substantive rejection of Plaintiff's patent claims.[23] If Plaintiff wanted to challenge the rejection of his patent claims Plaintiff should have filed an appeal to the Patent Trial and Appeal Board ("PTAB").[24] Defendants further note that Plaintiff's complaint does not identify a legal basis for bypassing the statutory appeal process applicable to this, and indeed all, patent applications. Because Plaintiff failed to exhaust his administrative remedies by appealing the rejections of his patent claims to the PTAB, Defendants conclude, this court has no jurisdiction to hear Plaintiff's complaint.[25]

The court agrees with Defendants. Plaintiff brings (1) thirty-two criminal claims pursuant to 18 U.S.C. §1512, (2) four criminal conspiracy claims pursuant to 18 U.S.C. § 371, and (3) one tort claim pursuant to 28 U.S.C. §§ 2671-2680.[26] Apart from the fact that private parties may not generally pursue claims brought under a criminal statute, [27] these claims are all plainly grounded in Plaintiff's dispute with the PTO. Plaintiff therefore was required to exhaust his administrative remedies by filing an appeal with the PTAB. Plaintiff does not allege that he did so. On this basis alone, the court does not have jurisdiction.

The court also notes that it does not have jurisdiction to hear Plaintiffs' FTCA claim because Plaintiff has not filed the necessary administrative claim with the PTO.[28] Plaintiff suggests in his response to the Agency's Notice of Abandonment of his patent application that he considered the two petitions he had previously filed with the agency to satisfy the administrative claim requirement.[29] Plaintiff's petitions do not meet, however, the requirement for at least two reasons.[30] First, the petitions were not filed with the PTO's General Counsel as required by 37 C.F.R. § 104.41.[31] Second, decisions on the two petitions were not made by the PTO Director or the General Counsel as required by 37 C.F.R. §104.42.[32] Because Plaintiff's petitions do not satisfy the FTCA's requirement of agency exhaustion, Plaintiff's FTCA claim is DISMISSED. Because any amendment would appear to be futile, this dismissal is WITHOUT LEAVE TO AMEND.

C. Motion for Summary Judgment

In response to Defendants' motion to dismiss, Plaintiff filed a combined cross-motion for summary judgment and opposition to Defendants' motion to dismiss. Because the court does not have jurisdiction over Plaintiff's claims, it cannot adjudicate the merits of Plaintiff's claims. Plaintiff's motion for summary judgment is DENIED-AS-MOOT.


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