This consolidated action is before the court on defendant’s motion to dismiss. Plaintiffs La Tretha E. Stroughter and Jerome W. Smith (“plaintiffs”), proceeding pro se, claim to have invented 1) a system for televisual/satellite mass production and communication, and 2) a compact machine able to copy, duplicate, transfer, record, and convert data (the “inventions”). Each invention has a corresponding patent application pending with the United States Patent and Trademark Office (the “USPTO”). Plaintiffs propound patent infringement claims against the USP-TO for using and disclosing the inventions during the patent applications’ pendency while acting in complicity with various private parties. Defendant moves to dismiss based on lack of subject matter jurisdiction, RCFC 12(b)(1), or for failure to state a claim upon which relief can be granted, RCFC 12(b)(6). Argument is deemed unnecessary.
BACKGROUND
On June 22, 2009, and June 24, 2009, respectively, Ms. Stroughter and Mr. Smith filed their complaints (the “complaints”).
On July 28, 2009, the court received from Ms. Stroughter a duplicate Application To Proceed In Forma Pauperis (the original filed with her complaint was granted on June 29, 2009) and a proposed amended complaint. The court entered a scheduling order on July 30, 2009, noting multiple deficiencies in Ms. Stroughter’s July 28, 2009 submissions due to failure to comply with the Rules of the United States Court of Federal Claims.
On August 12, 2009, Ms. Stroughter filed a separate response to the motion to dismiss. On August 14, 2009, Mr. Smith attempted to file a proposed amended complaint instead of a response to the motion to dismiss. Consequently, on August 20, 2009, the court ordered Mr. Smith’s proposed amended complaint to be returned unfiled, allowing Mr. Smith until August 28, 2009, to file a response to the motion to dismiss and to distinguish his proposed amended complaint from his original complaint. On September 10, 2009, Mr. Smith filed a second proposed amended complaint. Although this submission was untimely and failed to respond to the motion to dismiss, the court ordered it “filed by leave and ... treated as [Mr. Smith’s] response pursuant to ... the order entered on August 20, 2009.” Order filed Sept. 10, 2009, ¶ 1. Briefing concluded on September 29, 2009.
FACTS
Each complaint is captioned as a “MANDATE FOR PAYMENT OF COMPENSATION FOR THE USE BY AND FOR THE GOVERNMENT, BACK PAY AND ROYALTIES, INFRINGEMENT DAMAGES AND BUYOUT OF THE ACTUAL PATENT RIGHTS.” Compl. filed June 24, 2009 (“Smith Compl.”), at 1; Compl. filed June 22, 2009 (“Stroughter Compl.”), at 1. Both name
Plaintiffs allege that the during the applications’ pendency, the USPTO “realized that these two patents were triple platinum makers[,] went after the manufacturers to retrieve patent infringement monies, then collected the back pay royalties[,] ... put all of that money into CLIENT TRUST BANK ACCOUNT TO COLLECT THE INTEREST then turned around and made license agreements with the manufacturers.” Smith Compl. at 6-7; Stroughter Compl. at 7. Further, plaintiffs “also know that the government has made extra patents off of [plaintiffs’] individual claims from [plaintiffs’] two patents.” Smith Compl. at 7; Stroughter Compl. at 7. They request “back pay royalties in addition to infringement damages, back pay compensation from the governments [sic] use and the buyout of the actual patent [sic] themselves.” Smith Compl. at 8; Stroughter Compl. at 8. Plaintiffs describe themselves as business partners and co-inventors, and, after calculating infringement damages of $1.25 trillion, each claims entitlement to half ($625 billion).
Although the complaints did not allege a basis for the court’s jurisdiction, plaintiffs’ patent infringement claims suggest 28 U.S.C. § 1498 (2006). Mr. Smith’s response to the motion to dismiss repeatedly alleges an unlawful taking, which would invoke this court’s jurisdiction under the Fifth Amendment to the United States Constitution. Ms. Stroughter’s subsequent filings allege that jurisdiction also exists on account of 1) diversity of citizenship; and 2) the USPTO’s violation of “Appendix L Patent Law 35 U.S.C. [§ ] 154(B) [sic].”
DISCUSSION
Defendant moves the court to dismiss the consolidated action based on lack of subject matter jurisdiction, RCFC 12(b)(1), or for failure to state a claim upon which relief can
1. Standard of review
Documents filed pro se are “to be liberally construed ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
2. Consolidation of Ms. Stroughter and Mr. Smith’s claims
The court first resolves Ms. Stroughter’s motion — drawn from her response to defendant’s motion to dismiss' — to upend the court’s July 13, 2009 consolidation order. After describing her unavailing efforts to encourage Mr. Smith to comply with the court’s July 30, 2009 scheduling order, Ms. Stroughter “request[s] to dismiss Mr. Smith and myself as a consolidated action.” PI. Stroughter’s Br. filed Aug. 12, 2009, at 2. Ms. Stroughter declares that “I am further responding and submitting all future filings on my behalf only and I will continue to obey Judge Miller’s demands for future filings using the consolidated format, just to comply with the rules she extends, but I am not filing on behalf of Mr. Jerome W. Smith....” Id.
RCFC 42(a) provides that “[i]f actions before the court involve a common question of law or fact, the court may ... consolidate the actions-” RCFC 42(a)(2). The court has broad discretion to consolidate related actions. Hornback v. United States, No. 03-5108, 03-5111,
The court denies Ms. Stroughter’s motion. Mr. Smith’s complaint duplicates Ms. Stroughter’s. Ms. Stroughter explains the complaints’ similarity: “Mr. Smith’s complaint is exactly the same as my complaint, with identical claims because I wrote the complaint without Mr. Smith’s knowledge, changed the names and submitted the complaint to him. I instructed Mr. Smith to present the complaint_” Pl. Stroughter’s Br. filed Sept. 29, 2009, at 1. Common questions of fact and law predominate, with the identical claims of both complaints predicated on purported patent infringement during the applications’ pendency.
3. Subject matter jurisdiction over Ms. Stroughter and Mr. Smith’s claims
Faced with defendant’s challenge to the court’s subject matter jurisdiction, the court’s task “is necessarily a limited one.” Scheuer v. Rhodes,
1) Siibject matter jurisdiction under 28 U.S.C. § U98
The Court of Federal Claims’ exclusive jurisdiction pursuant to 28 U.S.C. § 1498 over patent infringement claims against the Federal Government is conditioned on the issuance of a patent:
Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner’s remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture.
28 U.S.C. § 1498(a); see Crater Corp. v. Lucent Techs., Inc.,
Because plaintiffs’ claims allege the infringement of unissued patents, the court’s jurisdiction under § 1498 is lacking. Although Ms. Stroughter acknowledges that “the rules and laws state that we are not allowed to seek damages due to the fact that we do not have issued patents,” PL Stroughter’s Br. filed Sept. 29, 2009, at 2, she asserts that “[pjatent or no patent it’s still not right or fair that there are billions of companies out there producing products derived from [the inventions],” id. at 3. She contends that patent laws exist to protect inventors, so “a pending application in the works should be just as enforceable as a patent which will prevent unauthorized use.”
2) Jurisdiction under 28 U.S.C. § 1832
United States district courts possess diversity jurisdiction over claims involving state law, as follows:
The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—•
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state;
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.
28 U.S.C. § 1332(a)(1)-(4) (2006). The statutorily defined scope of the Court of Federal Claims’ jurisdiction, see 28 U.S.C. § 1491(a)(1) (2006), does not include diversity jurisdiction. Moreover, patent infringement is an issue of federal, not state, law.
Ms. Stroughter states that “Diversity Jurisdiction applies because I live in the State of California and the United States Patent and Trademark Office is in the State of Virginia and Washington D.C.” PI. Stroughter’s Br. filed Aug 12, 2009, at 2. Nevertheless, 28 U.S.C. § 1332 does not enumerate—and, thus, it does not establish federal courts’ jurisdiction over—civil actions filed by a citizen against the United States. See 28 U.S.C. § 1332(a)(1)-(4). Furthermore, diversity jurisdiction is not granted to the Court of Federal Claims nor supports a claim for patent infringement. Diversity jurisdiction does not obtain.
3) Jurisdiction under the APA and 35 U.S.C. § m(b)(D(B)
The APA provides that “[a] person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. When “review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the ‘agency action’ in question must be ‘final agency action.’” Lujan v. Nat’l Wildlife Fed'n,
(1) affect[ ] other limitations on judicial review or the power or duty of the court to dismiss any action or deny any relief on*763 any other appropriate legal or equitable ground; or (2) eonfer[ ] authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
5 U.S.C. § 702. Federal district courts — not the Court of Federal Claims — are the proper fora for APA actions. 5 U.S.C. § 703 (“The form for proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute....”); Lion Raisins, Inc. v. United States,
Ms. Stroughter invokes the APA in the context of alleging a USPTO violation of 35 U.S.C. § 154(b)(1)(B), supra note 5, which provides, as follows:
[I]f the issue of an original patent is delayed due to the failure of the [USPTO] to issue a patent within 3 years after the actual filing date of the application ... the term of the patent shall be extended 1 day for each day after the end of that 3-year period until the patent is issued.
35 U.S.C. § 154(b)(1)(B).
4) Jurisdiction under the Fifth Amendment
The Court of Federal Claims has jurisdiction over claims alleging a taking in violation of the Fifth Amendment. See 28 U.S.C. § 1491(a) (2006) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded ... upon the Constitution_”). Nonetheless, allegations of patent infringement do not create a claim under § 1491(a) based on a violation of the Fifth Amendment. Zoltek Corp. v. United States,
5) Transfer to a court with jurisdiction
Although the court may lack jurisdiction over an action, it must, “if it is in the interest of justice, transfer such action ... to any other court in which the action ... could have been brought at the time it was filed or noticed.” 28 U.S.C. § 1631 (2006); see Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin.,
4. Plaintiffs’failure to state a claim
Were the instant action to be considered on its merits, defendant also moves the court to dismiss pursuant to RCFC 12(b)(6). The court’s task in considering a motion to dismiss for failure to state
Although a plaintiffs factual allegations need not be “detailed,” they “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,
For the reasons already set forth, plaintiffs’ allegations of infringement of unissued patents are “fatally flawed in their legal premises.” Advanced Cardiovascular Sys.,
5. Defendant’s motion to strike
Defendant argues that “[bjecause Mr. Smith did not sign or separately join the response filed on August 12, 2009, the response should be stricken from the record unless the omission is corrected by plaintiffs promptly.” Def.’s Br. filed Sept. 4, 2009, at 1 (iciting RCFC 11(a)). Noting that, “[a]s of September 3, 2009, neither the United States nor the Clerk’s office has received any ... response [to the motion to dismiss] from Mr. Smith,” id. at 2, defendant contends that “Ms. Stroughter and Mr. Smith are the real parties in interest in this case .... [and] all papers filed by the plaintiffs must be signed jointly by both Ms. Stroughter and Mr. Smith,” id.
On July 30, 2009, the court ordered that “[bjoth plaintiffs shall file separate responses or one joint response to defendant’s motion to dismiss by August 14, 2009.” Order filed July 30, 2009, ¶ 2. The court returned unfiled Mr. Smith’s first attempt to comply with the July 30, 2009 order, but provided Mr. Smith with the opportunity to file, by August 28, 2009, a response in compliance with the July 30, 2009 order. It is undisputed that Mr. Smith’s response — which was received by the Clerk’s Office on August 31, 2009, and filed by leave of the court on September 10, 2009' — was untimely and that defendant moved to strike Ms. Stroughter’s response before the court ordered that Mr. Smith’s response be filed by leave.
With respect to mere formalities, the court is lenient to pro se plaintiffs. See Erickson,
CONCLUSION
Accordingly, based on the foregoing,
IT IS ORDERED, as follows:
1. Ms. Stroughter’s motion in her August 12, 2009 brief to vacate order of consolidation is denied.
2. Defendant’s motion in its September 4, 2009 brief to strike is denied.
3. Defendant’s motion to dismiss for lack of subject matter jurisdiction is granted.
4. The Clerk of the Court shall dismiss Ms. Stroughter’s June 22, 2009 complaint and Mr. Smith’s June 24, 2009 complaint without prejudice for lack of subject matter jurisdiction.
No costs.
Notes
. "[I]t appears that the reason that Ms. Stroughter and Mr. Smith filed two separate complaints is because of Ms. Slroughter's well-founded concern about representing Mr. Smith in court because she is not an attorney.” Def.'s Br. filed July 1, 2009, at 3 (citing Compl. filed June 24, 2009 (“Smith Compl.”), at 1-2; Compl. filed June 22, 2009 ("Stroughter Compl.”), at 1-2).
. In addition to its deficiencies under RCFC 5.3(a), (b); RCFC 5.5(d)(2); and RCFC 10(a), the proposed amended complaint was incomplete under RCFC 8(a)(1), a defect that prompted defendant’s motion to dismiss the consolidated action. The court ordered Ms. Stroughter to "explain in her response how the proposed amended complaint differs from the original complaint, in addition to responding to defendant's objections to the original complaint, unless plaintiff Stroughter can state, consistent with RCFC 8(a)(l), how her proposed amended complaint responds to defendant's arguments based on jurisdiction.” Order filed July 30, 2009, at 2.
. The Clerk of the Court docketed the complaints with the United States as defendant. In alleged complicity with the USPTO, however, are “many many many [others],” Stroughter Compl. at 4-5, as the inventions are the technological wellspring of the Hewlett-Packard Media Center; the Nintendo Wii; the Apple iPhone; all touch-screen phone systems and products; the in-home ATM machine; in-home medical record and medical care systems; the Life Alert System; home security systems; and self-destructing computers, id. at 3-4.
. In lieu of litigation, Ms. Stroughter encourages the Government to consider a private, expeditious settlement of plaintiffs' claims. PI. Stroughter's Br. filed Sept. 29, 2009, at 5 ("We want to outright sell our rights to the United States Federal Government for the previously requested amount, which can be negotiated.... The best course of action suggested is, the United States assigns both patent applications, the inventors signs [sic] over their rights after purchase compensation is paid, the United States government then owns sole rights to both patent applications and obtain [sic] the actual patents and we the inventors walk away in silence and satisfied.”).
. Ms. Stroughter’s intended reference appears to be 35 U.S.C. § 154(b)(1)(B) (2006).
. As persuasive authority, defendant cites Ethicon, Inc. v. U.S. Surgical Corp.,
. Insofar as Ms. Stroughter fears prejudice resulting from Mr. Smith’s failure to abide by the court's orders, see Pl. Stroughter's Br. filed Aug. 12, 2009, at 1-2, the court assures Ms. Stroughter that plaintiffs' filings have been received and reviewed with liberality and leniency, see Order filed Sept. 10, 2009, II1 (filing by leave Mr. Smith's deficient submission); Order filed Aug. 20, 2009, ¶ 1 (returning Mr. Smith’s deficient submission while providing remedial opportunity)-
. Were unauthorized use alleged by plaintiffs, the analysis of this claim would mirror that for § 1498. See Lemelson v. United States,
. As persuasive authority, defendant cites Cooper v. Westchester County,
. Ms. Stroughter also appears to invoke 35 U.S.C. § 154(d). See PI. Stroughter's Br. filed Sept. 29, 2009, at 4. Section 154(d) allows the accrual of reasonable royalties owing to patent holders from "any person who, during the period beginning on the date of publication of the application for such patent ... and ending on the date the patent is issued ... makes, uses, offers for sale, or sells in the United States the inven-tion_" 35 U.S.C. § 154(d)(1)(A)(i) (emphasis added). The USPTO has not issued patents for plaintiffs' applications; consequently, plaintiffs cannot establish jurisdiction under the APA for an alleged violation of § 154(d). Ms. Stroughter may assume that patents will issue, see PL Stroughter’s Br. filed Sept. 29, 2009, at 6, but her interpretation of § 154(d) to allow the recovery of royalties by "eventual patenteefs]," id. at 4, is incorrect.