Cornish v. United States

• Decision Date: 15 August 2012
• Docket Number: Civil Action No. 09–797 (RWR).
• Citation: 885 F.Supp.2d 198
• Parties: Cornell D.M. Judge CORNISH, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

885 F.Supp.2d 198

Cornell D.M. Judge CORNISH, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

Civil Action No. 09–797 (RWR).

United States District Court,

District of Columbia.

Aug. 15, 2012.

Cornell D.M. Judge Cornish, Washington, DC, pro se.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.

Pro se plaintiff Cornell Cornish brings claims against the United States of America, the U.S. Patent and Trademark Office (“USPTO”), and then-USPTO employees Jon Doll, Harry I. Moatz, and James Toupin, each of whom is sued in his official and individual capacities, arising from the USPTO's decisions to deny Cornish's request for reinstatement to the patent attorney register. The defendants move to dismiss or, in the alternative, for summary judgment, arguing among other things that Cornish's claims fail for lack of proper service and personal jurisdiction, and for failure to state a claim. Because Cornish failed to effect proper service upon the individually-named defendants, his claim regarding USPTO rules is moot, sovereign immunity bars his common law claims and constitutional claims against the government and the employees in their official capacities, and res judicata bars his reinstatement claim, the defendants' motion will be granted.

BACKGROUND

Earlier memorandum opinions described the facts relevant here. See Cornish v. Dudas, 813 F.Supp.2d 147 (D.D.C.2011) (“Cornish II ”); Cornish v. Dudas, 715 F.Supp.2d 56 (D.D.C.2010) (“Cornish I ”). Cornish passed the patent examination in 1958 and was registered to practice before the USPTO. Cornish I, 715 F.Supp.2d at 59. However, a former client filed a grievance against him in 1995. In 1996, Cornish informed the USPTO that he would “ceas [e] practice,” id., and the USPTO construed the letter as a request for removal from the register. Cornish II, 813 F.Supp.2d at 148. After the USPTO invited Cornish to correct its interpretation and received no response, it removed Cornish from the register. Id.

Cornish requested reinstatement in 2005. Id. However, the USPTO denied the request based on Cornish's failure to present sufficient evidence “of his ability to render patent applicants valuable service” or, in the alternative, to pass the patent examination. Cornish I, 715 F.Supp.2d at 59. Cornish took and failed the patent examinations administered in July of 2005, 2006, and 2007, though the USPTO's Office of Enrollment Discipline (“OED”) had granted all of his requests to make reasonable accommodations for him to take the exams. Id. He also sat for and failed the 2008 patent exam, during which he received “the reasonable medical accommodations for which he had provided sufficient medical documentation establishing a need.” ¹ (Defs.' Mem. of P. & A. in Supp. of its Mot. to Dismiss [Dkt. # 11] (“Def.'s First Mem.”) at 8.)

In 2007, Cornish brought an action against three USPTO employees in their official capacities, challenging the defendants' decision to deny his reinstatement request in 2005 and alleging various constitutional and statutory violations. See Cornish I, 715 F.Supp.2d at 60. He later amended his complaint to add Bivens² claims and challenge the USPTO's “Final Rules ... that governed patent applicants' process for protecting inventions.” Id. Summary judgment was granted in favor of the defendants as to Cornish's reinstatement claims “[b]ecause Cornish ... failed to show that the decision to deny his reinstatement request was arbitrary or capricious and failed to demonstrate that the defendants violated the Rehabilitation Act,” id. at 58, which requires that disabled individuals receive “ ‘reasonable accommodations' that permit them to have access to and take a meaningful part in public services and public accommodations.” Id. at 65. His remaining claims were dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Id. at 58.

In 2008, before he received his 2008 exam results, Cornish filed a petition and addendum with the OED Director. (Def.'s First Mem. at 9; see also Exs. 18, 19.) The petition and addendum requested that the OED reconsider the reasonable accommodations provided to him during the July 2008 patent examination, and requested reinstatement to the patent register by either waiver of the requirement that he pass the examination or permission to retake the identical examination an unlimited number of times. ( Id. at 9.) Cornish also “generally reasserted the same causes of actions presented in Cornish I ” in his petition.³ ( Id.) The OED director denied Cornish's petition on November 6, 2008. ( Id. at 10.) The Acting USPTO Director's designate affirmed the decision on March 31, 2009 and later denied Cornish's request for reconsideration. ( Id. at 11.)

In this action seeking declaratory and injunctive relief and damages, Cornish challenges as an unconstitutional taking the USPTO's denial of his request for reinstatement. ( See, e.g., Am. Compl. at 63, 80, 93, 96–97, 101, 106.) He also challenges the USPTO's application of the “Final Rules” to him as unconstitutional under the Ex Post Facto and Bill of Attainder Clauses (Am. Compl. at 63–65, 75), asserts a Bivens claim against USPTO employees in their individual and official capacities based upon purported First Amendment and due process violations ( id. at 63, 67), and seeks to re-take the patent exam an unlimited number of times ( id. at 71). Finally, Cornish brings common law claims for tortious “interference with attorney-client relationships[,]” fraud, and deceit. ( See, e.g., id. at 73, 90; see also Defs.' Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss Am. Compl. or, in the Alternative, for Summ. J. [Dkt. # 23] (“Defs.' Second Mem.”) at 10.) The defendants now move to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(1)-(6) or, in the alternative, for summary judgment.

DISCUSSION

I. BIVENS CLAIMS

Cornish's amended complaint seeks unspecified Bivens damages against the defendants in their individual and official capacities. (Am. Compl. at 83–84, 90.) The defendants move to dismiss the individual capacity claims for, among other things, failure to effect proper service, improper venue, and lack of personal jurisdiction.² (Defs.' First Mem. at 12–16.) See alsoFed.R.Civ.P. 12(b)(2), (3), (5). They also argue that Cornish's official capacity claims, construed as claims “against the government itself” (Defs.' First Mem. at 12 n. 5), should be dismissed for failure to “identify a waiver of sovereign immunity for his monetary claims.” ( Id. at 29.)

A. Individual capacity claims

Cornish personally attempted to serve process upon defendant John Doll, the then-Director of the USPTO, and Harry Moatz, the then-Director of the USPTO's OED, by certified mailings to their offices of employment. ( See Defs.' First Mem. at 14; see also Return of Serv. Aff. [Dkt. # 3].) Doll's return receipt bears the signature “Lennox Cooper,” and Moatz's is unsigned. Cornish filed no proof of service upon defendant James Toupin, the then-General Counsel.

The defendants have moved to dismiss the amended complaint for insufficiency of service of process. SeeFed.R.Civ.P. 12(b)(5). “ ‘Upon such a motion, the plaintiff [must] establish[ ] that [ ]he has properly effected service’ as is required under Rule 4.” Strong–Fischer v. Peters, 554 F.Supp.2d 19, 23 (D.D.C.2008) (citation omitted). “[S]ervice[ ] ... cannot be effected by a party” since “Rule 4(c)(2) provides that ‘[a]ny person who is at least 18 years old and not a party may serve a summons and complaint.’ ” Judd v. F.C.C., 276 F.R.D. 1, 6 (D.D.C.2011) (citing Fed.R.Civ.P. 4(c)(2)) (emphasis added). Neither may an individual defendant be served “at his place of business.” Young v. Fed. Bureau of Prisons, 825 F.Supp.2d 234, 239 (D.D.C.2011). Instead, “Rule 4(e)(2) requires that service upon defendants sued in their individual capacities be effected either personally, by leaving the complaint and summons at the dwelling or usual place of abode, or by delivery to an agent lawfully authorized to receive service.” Williams v. Court Services and Offender Supervision Agency for D.C., 840 F.Supp.2d 192, 199 n. 3 (D.D.C.2012) (citing Fed.R.Civ.P. 4(e)(2)).

Here, Cornish's service of process was insufficient. He personally tried to serve two of the three individually-named defendants, and did so by mailing process to them at their place of employment. Moatz's unsigned return receipt does not show that Moatz received process, and Cornish provides no evidence that anyone named Lennox Cooper was authorized to accept service of process as Doll's agent. Cornish supplies no proof at all of personal service upon Toupin. Although “pro se litigants are allowed more latitude than litigants represented by counsel to correct defects in service of process and pleadings,” Nellis v. Gonzales, Civil Action No. 06–1704(CKK), 2007 WL 1033517, at *2 (D.D.C. Mar. 30, 2007); see also Freeman v. Fallin, 210 F.R.D. 255, 256 (D.D.C.2002) (granting unrepresented plaintiffs “a brief extension of time to perfect service”), no such latitude is warranted here. The defendants alerted Cornish to a defect in service as early as 2009, but he has shown no subsequent effort to correct it.

Cornish's failure to properly effect personal service of process upon the defendants also deprives the court of personal jurisdiction over the defendants in their individual capacities. Johnson v. Williams, Civil Action No. 05–2315(RBW), 2006 WL 2788985, at *3 (D.D.C. Sept. 26, 2006); see also Simpkins v. D.C., 108 F.3d 366, 369 (D.C.Cir.1997). “In a Bivens action, the defendants must be personally served as individuals in order for a court to have jurisdiction over them.... The failure to effect individual service is fatal to a Bivens claim.” Paolone v. Mueller, Civil Action No. 05–2300(JDB), 2006 WL 2346448, at *3 (D.D.C. Aug. 11, 2006)....