Gambert v. Rogers

Filing 20

ORDER that Plaintiff's 16 First Amended Complaint is DISMISSED with prejudice. ORDERED that the Clerk of the Court TERMINATE this action. Signed by Judge G Murray Snow on 2/18/2014. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jason Gambert,

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No. CV-13-02087-PHX-GMS
Plaintiff,

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ORDER

v.
Gerald Rogers,
Defendant.

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Pending before the Court is Plaintiff’s Amended Complaint (Doc. 16) which the

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Court will screen pursuant to 28 U.S.C. § 1915(e)(2). Pursuant to that screening, and

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because Plaintiff has been given a previous opportunity to amend his complaint, the First

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Amended Complaint is dismissed for failure to state a claim.

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Plaintiff initially filed largely identical complaints against the United States Patent

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and Trademark Office (“USPTO”) and some of its employees. In addition to this case,

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filed against USPTO Director David Kappos, the Plaintiff filed largely identical claims in

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case nos. (1) 13 CV-2081, in which the Defendants were the USPTO, the Trademark

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Trial and Appeal Board (“TTAB”) and Trademark Judge David Bucher, (2) 13 CV-2083,

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in which the Defendants were the United States Patent Trademark Organization, the

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TTAB and the United States, (3) 13 CV-2084 in which the Defendants were the USPTO,

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the TTAB, and interlocutory attorney Ann Linnehan, (4) 13 CV-2085 in which the

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Defendants were the USPTO, the TTAB and Trademark Judge Ellen Seeherman, (5) 13

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CV-2086 in which the Defendants were the USPTO, the TTAB and Trademark Judge

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Mark Bergsman, (6) 13 CV-2087 in which the Defendants were the USPTO, the TTAB

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and Trademark Judge Gerald Rogers, (7) 13 CV-2088 in which the Defendants were the

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USPTO, the TTAB and Trademark Judge Karen Kuhlke, and (8) 13 CV-2089 in which

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the Defendants were the USPTO, the TTAB and Trademark Judge Lorelei Ritchie.

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Even though each of Plaintiff’s largely identical complaints filed in these actions

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were approximately 42 pages long, they failed to state a cognizable claim, and each of

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them was dismissed with ONE opportunity to amend. In its previous identical orders,

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this Court advised the Plaintiff that the claims that he purported to bring pursuant to the

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Federal Tort Claims Act (“FTCA”) were, in fact, claims that were statutory exceptions to

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the limited right that Plaintiffs have to bring suit against the United States or its entities

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under the Act. The Court also advised the Plaintiff that “any cause of action that was

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raised in the original complaint and dismissed herein is waived if it is not re-pleaded in a

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first amended complaint.” See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir.

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2012) (en banc).

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Despite this Court’s previous warning to the Plaintiff against placing extraneous,

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collateral and inexplicable phrases in his complaint that was generated by Plaintiff’s 42

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page complaint, Plaintiff’s identical amended complaint filed in the nine actions is 115

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pages with three attachments of 57, 147 and 4 pages each. The First Amended Complaint

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contains the text of The Star Spangled Banner, the complete text of several amendments

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to the Constitution, disquisitions and pronouncements by the Plaintiff on the meaning of

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the Constitution and the Declaration of the Independence, as well as assertions of

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sovereignty by the Plaintiff over governmental action including his thoughts on

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government, biblical quotations, prophecies, witness lists and other matters. To the

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extent that the Defendant actually states legal claims in his amended complaint, the

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Plaintiff brings claims under the FTCA against the USPTO and asserts causes of action

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for negligence, gross negligence, high treason, the Hobbs Act and other unspecified

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claims apparently arising from the assertion that the elected and appointed officials as

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well as the employees of the USPTO have refused to acknowledge that the Plaintiff has

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received a trademark on the letters “SEO” and his generalized assertion that others have

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had their trademark applications improperly denied or revoked. The attachments to

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Plaintiff’s amended complaint, however, make clear that the USPTO eventually

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dismissed Plaintiff’s application for trademark for his persistent failure to provide

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required information to the party or parties opposing his application.

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Multiple circuits have concluded that “[i]t is virtually axiomatic that the FTCA

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does not apply ‘where the claimed negligence arises out of the failure of the United States

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to carry out a [federal] statutory duty in the conduct of its own affairs.’” United States v.

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Agronics Inc., 164 F.3d 1343, 1345 (10th Cir. 1999) (quoting Sea Air Shuttle Corp. v.

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United States, 112 F.3d 532, 536 (1st Cir. 1997) (quoting Johnson v. Sawyer, 47 F.3d

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716, 727–28 (5th Cir. 1995) (en banc))). Sometimes referred to as “quasi-legislative” or

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“quasi-judicial” action, see, e.g., C.P. Chem. Co. v. United States, 810 F.2d 34, 37–38 (2d

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Cir. 1987); Jayvee Brand, Inc. v. United States, 721 F.2d 385, 390 (D.C. Cir. 1983), this

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limitation comes from the language of the FTCA, which only waives sovereign immunity

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for conduct for which a private person could be held liable under state tort law, see 28

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U.S.C. §§ 1346(b), 2674. In general, federal statutory duties regarding peculiarly

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administrative acts generally involve “a type of conduct that private persons could not

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engage in, and hence could not be liable for under local law.” Sea Air Shuttle, 112 F.3d at

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537 (quotation omitted).

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In a similar case, a plaintiff brought an FTCA action alleging that the FAA had

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violated it federal statutory duties in promulgating a rule related to flight paths along the

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beaches of California. Sky Ad, Inc. v. McClure, 951 F.2d 1146, 1147 (9th Cir. 1991). The

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Ninth Circuit held that “Congress clearly did not intend the FTCA to establish liability in

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tort for failure to comply with publication and comment requirements for administrative

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rulemaking.” Id. The court noted that legislative history supported this conclusion

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because a “House Report on the FTCA stated: ‘[It is not] desirable or intended that the

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constitutionality of legislation, or the legality of a rule or regulation should be tested

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through the medium of a damage suit for tort.’” Id. (citing H.R. Rep. No. 1287, 79th

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Cong., 1st Sess. 6 (1945)). The court affirmed the dismissal of the FTCA claim on that

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ground and also affirmed the dismissal of a Bivens claim that also challenged the

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rulemaking. Id. at 1148. In relation to the Bivens claim, the court noted both that the

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Administrative Procedure Act provided an explicit remedy for unconstitutional

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rulemaking “and the overall unprecedented nature of appellants’ tort theory.” Id.

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Here, Gambert is seeking to enforce federal statutory duties through an FTCA

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claim, just as the plaintiff did in Sky Ad. The actions of the USPTO and its employees

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that are at issue in this case are the kinds of “quasi-legislative” or “quasi-judicial” action

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that are not covered by the FTCA. That is because a private person could never engage in

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the granting of a trademark, and a private person could not be sued under state tort law

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for anything analogous. All of Gambert’s claims arise from the denial of his trademark

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and allegations that various government entities and officials failed to follow the laws

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and regulations governing the issuance of trademarks.

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As in Sky Ad, Gambert is alleging an unprecedented tort theory and Congress has

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explicitly provided other remedies for such allegations instead of a tort suit. If Gambert

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felt that his trademark was improperly denied he should have continued to challenge it

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through the provided administrative and judicial channels of review. Here, Gambert’s

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failure to defend his Trademark application was the reason it was denied. If he felt that

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mistakes or violations of federal law or procedure were made, then a judicial appeal and

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not a tort suit would have been the appropriate remedy. A person “who is dissatisfied

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with the decision of the Director or Trademark Trial and Appeal Board” may appeal to

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the courts as provided in 15 U.S.C. § 1071.

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The Court spent a great deal of time reviewing the balance of the statements made

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in the First Amended Complaint to determine whether Mr. Gambert had stated any claim

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in the document that was not frivolous and without all merit. After considerable effort,

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the Court could discern no such claim.

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Therefore, pursuant to the Court’s screening of the First Amended Complaint

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pursuant to 28 U.S.C. § 1915(e)(2), and because Plaintiff has been given a previous

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opportunity to amend his complaint;

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IT IS HEREBY ORDERED that Plaintiff’s First Amended Complaint (Doc. 16)

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is DISMISSED with prejudice.
IT IS FURTHER ORDERED that the Clerk of the Court TERMINATE this

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action.
Dated this 18th day of February, 2014.

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