# O'Neill v. United States Army Corps of Engineers

> District Court, D. Oregon · January 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10396956

## Case

- **Court:** District Court, D. Oregon
- **Decided:** January 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

THOMAS A. O’NEILL; Civ. No. 6:22-cv-01789-AA
KATHLEEN H. O’NEILL,

Plaintiffs, OPINION & ORDER
v.

UNITED STATES ARMY CORPS
OF ENGINEERS, et al.,

Defendants.
_______________________________________

AIKEN, District Judge.

This case comes before the Court on a Motion to Dismiss filed by Defendants.
ECF No. 32. Defendants move to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1), (3), (5), and (6). This Court concludes that this matter is
appropriate for resolution without oral argument. For the reasons set forth below,
the motion is GRANTED and this case is DISMISSED.
LEGAL STANDARDS
I. Rule 12(b)(1)
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure
12(b)(1) addresses the court’s subject matter jurisdiction. The party asserting
jurisdiction bears the burden of proving that the court has subject matter jurisdiction
over his or her claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). A Rule 12(b)(1) motion may attack the substance of the complaint’s
jurisdictional allegations even though the allegations are formally sufficient. See
Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007) (court treats motion

attacking substance of complaint’s jurisdictional allegations as a Rule 12(b)(1)
motion); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (“[U]nlike a Rule
12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint’s
jurisdictional allegations despite their formal sufficiency[.]” (internal quotation
omitted)).
“Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.” Fed. Deposit Ins. Co. v. Meyer, 510 U.S. 471, 475 (1994). A motion

to dismiss based on sovereign immunity is a motion to dismiss for lack of subject
matter jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).
II. Rule 12(b)(3)
In a Rule 12(b)(3) motion to dismiss, parties may assert the defense of improper
venue by motion prior to filing a responsive pleading. Fed. R. Civ. P. 12(b)(3). “Rule
12(b)(3) allow[s for] dismissal only when venue is ‘wrong’ or ‘improper.’” Atl. Marine

Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 55 (2013).
Venue is proper in “(1) a judicial district in which any defendant resides, . . .
(2) a judicial district in which a substantial part of the events or omissions giving rise
to the claim occurred, . . . or (3) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial district in which any defendant is
subject to the court’s personal jurisdiction with respect to such action.” 28 U.S.C. §
1391(b). “When the plaintiff asserts multiple claims, it must establish that venue is
proper as to each claim.” Kaia Foods, Inc. v. Bellafiore, 70 F. Supp.3d 1178, 1183
(N.D. Cal. 2014) “However, where venue exists for the principal claim, federal courts

will also adjudicate closely related claims, even if there is no independent source of
venue for the related claims.” Id.
On a motion to dismiss pursuant to Rule 12(b)(3), “the pleadings need not be
accepted as true, and the court may consider facts outside of the pleadings.” Murphy
v. Schneider National, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004) (internal quotation
marks omitted). “Dismissal, rather than transfer, may be appropriate where the
transfer would be futile because the case would be dismissed even after transfer.”

Kaia Food, Inc., 70 F. Supp.3d at 1184.
III. Rule 12(b)(5)
Rule 12(b)(5) allows a defendant to move to dismiss the action where the
service of process of a summons and complaint is insufficient. Fed. R. Civ. P. 12(b)(5).
“It is plaintiff’s burden to establish the validity of service of process.” Roller v.
Herrera, No. 3:18-CV-00057-HZ, 2018 WL 2946395, at *2 (D. Or. June 11, 2018)

(citing Aetna Bus. Credit, Inc. v. Universal Décor & Interior Design, Inc., 635 F.2d
434, 435 (5th Cir. 1981)). “The court may consider evidence outside the pleadings in
resolving a Rule 12(b)(5) motion.” Id.
If service is ineffective, the court may dismiss the action or quash service. “The
choice between dismissal and quashing service of process is in the district court’s
discretion.” Stevens v. Security Pac. Nat’l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976).
IV. Rule 12(b)(6)
To survive a motion to dismiss under the federal pleading standards, a
pleading must contain a short and plain statement of the claim and allege “sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). While a pleading does not require “detailed factual allegations,”
it needs more than “a formulaic recitation of the elements of a cause of action.” Iqbal,
556 U.S. at 677-78. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. The plausibility standard . . . asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id. at 678. Legal
conclusions without any supporting factual allegations do not need to be accepted as
true. Id.
BACKGROUND
Plaintiff Thomas O’Neill1 is the owner of U.S. Patent No. 7,681,531 (the “‘531
Patent,”). Second Am. Comp. 6. (“SAC”). ECF No. 9.2 The ‘531 Patent covers the

System for Assessing Habitat Value, also known as the Combined Habitat

1 Plaintiff seeks to add a second Plaintiff, Kathleen O’Neill, and Ms. O’Neill’s name has been added
to the caption of the case. But for the reasons discussed below, that amendment is ineffective and so
all references to “Plaintiff” in this opinion are in the singular and refer to Thomas O’Neill.
Additionally, Plaintiff spells his name inconsistently in his filings, varying between “O’Neill” and
“O’Neil.” “O’Neill” appears more frequently and so the Court will use that spelling in this Order.
2 The operative pleading, ECF No. 9, is captioned “Second Amended Complaint,” although it is the
first amended pleading filed by Plaintiff after the original Complaint, ECF No. 1. To avoid
confusion, the Court will refer to the document as it is named in its caption with the abbreviation
SAC. The SAC does not have numbered paragraphs and so the Court will provide citations to the
page number.
Assessment Protocols, or “CHAP.” SAC 6. “CHAP is an analytical tool that is used
to conduct habitat assessments, which serve to quantify restoration benefits that
inform the cost-effectiveness and cost-benefit analyses, and that contribute to the

comparison of alternative project plans, which affect native species, their habitats,
and biodiversity at a project site or area.” SAC 8.
CHAP has been used by Defendant U.S. Army Corps of Engineers (“USACE”)
in a number of projects on a single-use basis but USACE has not certified CHAP for
regional use. SAC 10-11. CHAP was considered for regional certification by USACE
but during review it was found in a memorandum that
CHAP utilizes patented and other proprietary technology, including the
Integrated Biodiversity Information System (IBIS) database. The
memorandum notes that “The ability to provide full disclosure of the
information used for ecological planning decisions is a criteria for model
approval/certification to ensure and maximize the quality, objectivity,
utility, and integrity of information disseminated by the Corps.
Additionally, all analyses and data are required to be transparent to
facilitate internal and external review for reasonableness of the benefits
and costs used in decision-making and enable efficient environmental
planning processes.” That is, that overcoming access issues was a
necessary precursor to Regional Certification of CHAP.

SAC Ex. C3, at 2. ECF No. 9-1.
Plaintiff was informed by letter in January 2020 that USACE would not be
pursuing regional certification of CHAP. SAC Ex. C3, at 3.
Plaintiff, proceeding pro se, originally brought this action on behalf of the
Habitat Institute (“THI”) and sought leave to proceed in forma pauperis (“IFP”). ECF
Nos. 1, 2. The Court denied the IFP petition and dismissed the original Complaint
sua sponte because Plaintiff, as a non-lawyer, was not permitted to represent THI in
a legal action and THI, as a corporate entity, was required to appear by counsel. ECF
No. 6. Plaintiff subsequently refiled the action in his own name and opted to pay the
filing fee rather than seek leave to proceed IFP.

DISCUSSION
Plaintiffs bring claims for (1) violation of the Administrative Procedures Act
(“APA”) seeking to compel agency action; (2) negligence; (3) breach of contract; and
(4) patent infringement.
In his first claim, Plaintiff seeks to compel the USACE to complete a
certification of CHAP for regional use. SAC 12-13. In his second claim, Plaintiff
alleges that Defendants have negligently applied improper scientific review in

declining to certify CHAP for regional use. SAC 15. In his third claim, Plaintiff
alleges that Defendants breached oral and written agreements. SAC 18-20.
Plaintiff’s fourth claim alleges that Defendants have infringed on the ‘531 Patent.
SAC 20. Plaintiff has also filed an “Amendment to Complaint” that seeks to add an
additional plaintiff and a claim for “Conspiracy to Defraud the United States.” ECF
No. 31.

I. “Amendment to the Complaint”
As a preliminary matter, the Court must address Plaintiff’s “Amendment to
the Complaint.” ECF No. 31. In this filing, Plaintiff seeks to add Kathleen O’Neill
as a second plaintiff and to add a claim for “Conspiracy to Defraud the United States
and Its Agencies.”
It appears that this filing was intended to modify the operative SAC. So
construed, the “Amendment to the Complaint” is not proper. An amended complaint
“may not incorporate by reference any party of the prior pleadings, including

exhibits.” Local Rule (“LR”) 15-1(a)(3); see also Johnson v. Federal Bureau of Prisons,
Case No. 3:15-CV-0581-AC, 2016 WL 8345464, at *5 (D. Or. July 27, 2016) (explaining
that an amended complaint operates as a “complete substitute” for the original
complaint and that the Local Rules for the District of Oregon require a plaintiff to
“reproduce the entire pleading and not incorporate prior versions by reference.”).
In addition, as the Government points out in its briefs, Plaintiff has already
amended his pleadings once before. See ECF No. 1 (original Complaint); ECF No. 9

(the operative “Second Amended Complaint.”). Federal Rule of Civil Procedure 15(a)
provides that a plaintiff may “amend its pleadings once as a matter of course” and
that “[i]n all other cases, a party may amend its pleadings only with the opposing
party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(1), (2) (emphasis
added). The Government affirms that it did not give written leave for the filing of
another amended complaint and Plaintiff has not requested or received leave of the

Court to make an amendment.
However, even if the Court were to accept the “Amendment to the Complaint”
as a supplemental pleading, the new claim it seeks to add would be subject to
dismissal. Plaintiff seeks to add a claim against Defendants under 18 U.S.C. § 371,
which is a criminal statute concerning conspiracy to defraud the United States.
Generally, “private citizens are not permitted to enforce criminal statutes or
prosecute crime.” Keyter v. 240 Government Officers, 372 F. Supp.2d 604, 610 (W.D.
Wash. 2005). This general rule applies to 18 U.S.C. § 371 specifically. See Newman
v. Caliber Home Loans, Inc., Case No. 16-CV-2053-JLS (NLS), 2018 WL 3361442, at

*1 (S.D. Cal. July 10, 2018) (holding that 18 U.S.C. § 371 “is a criminal statute and
does not provide a private right of action.”); Li Qin v. Brown, Case No. 19-cv-00311-
SVK, 2019 WL 11343485, at *5 (N.D. Cal. Feb. 7, 2019) (holding same). To the extent
that Plaintiff seeks criminal penalties or the enforcement of a criminal statue, he is
likewise unable to do so as a private citizen. Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another.”); Tia v. Criminal Investigation Demanded as Set Forth,

441 Fed. App’x 457, 458 (9th Cir. 2011) (a private party plaintiff “lacks standing to
compel an investigation or prosecution of another person.”).
In sum, Plaintiff’s attempt to supplement the operative Complaint by filing the
“Amendment to Complaint” is ineffective and, even if it were considered, the proposed
claims are legally defective and subject to dismissal without leave to amend.
II. Standing to Assert Claims on THI’s Behalf

As previously noted, the Court dismissed all claims brought by or on behalf of
THI in this action because THI was not represented by licensed counsel. Dismissal
was without prejudice, both to allow THI to refile its claims with the assistance of an
attorney, and to allow Plaintiff to bring any other claims seeking to vindicate his own
rights. See Feb. 2023 Order (“If O’Neill wishes to pursue this action pro se, he may
file an amended complaint presenting claims brought on his own behalf and without
those claims brought by the Habitat Institute.”). ECF No. 6.
The SAC is substantively identical to the original Complaint, except that

references to THI have been removed and, in places, references to Plaintiff have been
inserted in place of THI. Compare, e.g., Compl. 16 (“Making this assertion is a further
infringement of our copyrights by plagiarism. Thereby taking credit for the
Institute’s work.”) with SAC 18 (“Making this assertion is a further infringement of
copyrights by plagiarism. Thereby taking credit for others’ work.”) and Compl. 37
(“The Habitat Institute has made numerous attempts to resolve these issues over the
years which are documented in emails, letters, and phone calls.”) with SAC 38 (“The

Plaintiff has made numerous attempts to resolve these issues over the years which
are documented in emails, letters, and phone calls.”). This substitution goes so far as
to change communications made on behalf of THI to make them appear as if they
were made on behalf of Plaintiff personally. Compare Compl. 32 and SAC Ex. C2, at
2 (“The Habitat Institute agrees to make said changes.”) with SAC 34 (“The [Plaintiff]
agrees to make said changes.” (alteration in original)).

Substantively, however, the claims are unaltered except for the identity of the
party asserting them. For example, where the original Complaint alleges that
Defendants breached a contract with THI, the SAC alleges that Defendants breached
a contract with Plaintiff. Compare Compl. 16 (“The USACE Environmental Division
Staff be allowed [sic] to their written and verbal agreement with the Institute.
USACE staff was cause being dishonest to the Institute…”) with SAC 18 (“Will the
USACE Environmental Division staff be held to their written and verbal agreement
with the Plaintiff? USACE staff was caught being dishonest to the Plaintiff…”). The
facts supporting these claims relate to THI, rather than Plaintiff personally, which is

borne out by the Exhibits to the Complaint. See, e.g., SAC Ex. C1 (In a letter from
Plaintiff to Defendant Clifford “I can assure you this is not what the Institute was
agreeing to in meeting the Corps needs on July 20, 2018 that we would be in the exact
same position we were a year ago.”); SAC Ex. C2, at 1 (in a letter from Plaintiff, as
Director of THI, to Clifford “Our agreement, which the Corps agreed to, clearly states
we would be paid and since the Institute has been in an on-call status, we believe we
should be paid…”); SAC Ex. C2, at 2 (In an email from Plaintiff to Clifford “The

Habitat Institute agrees to make said changes . . . and it’s agreed upon that THI would
be paid for this work.”) (emphasis added).
In sum, these are not Plaintiff’s personal claims—they are THI’s claims, which
Plaintiff initially brought on behalf of THI. Plaintiff simply substituted himself in
place of THI when the Court ruled that THI could not appear except through a
licensed attorney. This is impermissible—Plaintiff and THI are distinct entities and

are not legally interchangeable. Plaintiff cannot evade this fact by the expedient of
amending his complaint to swamp himself for THI. See Ritchie v. Staton by and
through Multnomah Cnty. Sheriff’s Office, Civ. No. 03:17-CV-00844-AC, 2018 WL
2276241, at *8 (D. Or. Mar. 28, 2018) (denying leave to amend because, to cure the
defects identified in the complaint, “would require [the plaintiff] to amend his
complaint with facts directly contrary to those he pleaded in his first two
complaints.”).
Plaintiff lacks standing to pursue claims on behalf of THI. As the Supreme

Court had held “the plaintiff generally must assert his own legal right and interests,
and cannot rest his claim to relief on the legal rights or interests of third parties.”
Valley Forge Christian Coll. v. American United for Separation of Church and State,
Inc., 454 U.S. 464, 474 (1982) (internal quotation marks and citation omitted). Lack
of standing justifies dismissal of Plaintiff’s claims and so Defendants’ Motion to
Dismiss will be granted. Because Plaintiff lacks standing, the Court need not reach
Defendants Rule 12(b)(6) arguments concerning defects in the pleading of Plaintiff’s

claims. However, Defendants have raised additional issues of jurisdiction with
regard to service and with Plaintiff’s patent infringement and contract claims. The
Court concludes that those issues ought to be addressed to head off any further
litigation of this matter in the wrong courts.
III. Patent Infringement
Plaintiff alleges that the USACE’s habitat evaluation model for the East San

Pedro Bay Ecosystem Restoration Study in Long Beach, California infringes the ‘531
Patent. SAC 20-21.
Plaintiff seeks to bring this case pursuant to 35 U.S.C. § 271. However, § 271
does not waive the Government’s sovereign immunity for patent infringement.
Waiver of sovereign immunity is instead to be found in 28 U.S.C. § 1498(a), which
provides:
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 . . .

For purposes of this section, the use or manufacture of an invention
described in and covered by a patent of the United States by a
contractor, subcontractor, or any person, firm, or corporation for the
Government and with the authorization or consent of the Government,
shall be construed as use or manufacture for the United States.

28 U.S.C. § 1498(a).
The Supreme Court has explained that the purpose of § 1498(a) is “to limit the
owner of the patent and his assigns and all claiming through or under him to suit
against the United States in the Court of Claims[.]” Richmond Screw Anchor Co. v.
United States, 275 U.S. 331, 343 (1928). Courts have held that § 1498 “provides the
only avenue for a patent owner to bring an action against the government for patent
infringement.” Golden v. United States, 955 F.3d 981, 987 (Fed. Cir. 2020). As a
result, this Court is without jurisdiction to hear Plaintiff’s claim for patent
infringement, as that jurisdiction rests exclusively with the Court of Federal Claims.
See FastShip, LLC v. United States, 131 Fed. Cl. 592, 607 (2017) (“Pursuant to 28
U.S.C. § 1498(a), the United States has waived sovereign immunity and vested in
this court [the Court of Federal Claims] exclusive jurisdiction to adjudicate patent
infringement claims against the federal government[.]”).
Plaintiff asserts that this Court may exercise jurisdiction over his patent
infringement claims based on federal question jurisdiction, citing 28 U.S.C. § 1338.
That statute confers original jurisdiction on district courts for civil actions relating to
patents, trademarks, and copyrights and divests the state courts jurisdiction over the
same. 28 U.S.C. § 1338(a). However, this grant of jurisdiction is not a waiver of the

sovereign immunity of the United States. See O’Brien v. United States, 18 F. Supp.2d
1356, 1358 (N.D. Ga. 1998) (“Sections 1331, 1332, and 1338 operate merely as grants
of general jurisdiction and require an accompanying waiver of sovereign immunity .
. . in order to bring suit against defendant United States, there must be some statute
which provides a waiver of the federal government’s sovereign immunity for each
claim.”). Here, as discussed in the preceding paragraph, the only such waiver for
patent infringement claims is 28 U.S.C. 1498(a), which limits jurisdiction to the Court

of Federal Claims.
Plaintiff’s claim for patent infringement is therefore DISMISSED without
prejudice for want of jurisdiction.
IV. Breach of Contract
Plaintiff alleges that the USACE entered into a contract with THI and
subsequently breached it.3

The Tucker Act gives the Court of Federal Claims jurisdiction “to render
judgment upon any claim against the United States founded . . . upon any express or
implied contract with the United States.” 28 U.S.C. § 1491(a)(1). An exception to
this conferral of jurisdiction on the Court of Federal Claims may be found in the Little
Tucker Act, which confers jurisdiction upon the district courts to hear a civil action

3 As discussed, Plaintiff’s attempts to re-allege that the contract was between himself and USACE
are ineffective.
or claim against the United States for breach of an express or implied contract with
the United States for a sum “not exceeding $10,000 in amount.” 28 U.S.C. §
1346(a)(2). Here, Plaintiff seeks damages in the amount of $41,837,543.00, SAC 39,

which is well in excess of the amount allowed under the Little Tucker Act. “The Court
of Federal Claims possesses exclusive jurisdiction of claims arising under the Tucker
Act in excess of $10,000.” United States v. Park Place Assocs., Ltd., 563 F.3d 907, 927
(9th Cir. 2009).
In addition, Plaintiff’s claims are subject to the Contract Disputes Act, which
governs “express or implied contracts (including those of the nonappropriated fund
activities described in section 1345 and 1491 of title 28) made by an executive agency”

for the procurement of property or the procurement of services. 41 U.S.C. § 7102(a).
The Little Tucker Act expressly deprives the district courts of jurisdiction to consider
claims arising out of express or implied contracts with the United States that fall
within the ambit of the Contract Disputes Act. 28 U.S.C. § 1346(a)(2).
Plaintiff asserts that this Court has jurisdiction over the breach of contract
claim by virtue of diversity jurisdiction and supplemental jurisdiction by virtue of

this Court’s jurisdiction over the claim for negligence. Pl. Resp. 6-7, 9-10. ECF No.
37.
Federal diversity jurisdiction requires that all parties to an action be “citizens
of different States” or aliens. 28 U.S.C. § 1332(a). However, federal agencies and
instrumentalities are not citizens “of any particular state for diversity purposes.”
Hancock v. Fed. Savings and Loan Corp., 492 F.2d 1325, 1329 (9th Cir. 1974); see also
Sharr v. Dep’t of Transp., 247 F. Supp.2d 1208, 1214 (D. Or. 2003) (“TSA, a federal
agency, is not a ‘citizen’ of any state, and its presence as a defendant defeats diversity
jurisdiction.”); Gaston v. Harris Cnty., No. 3:12-cv-00023-PK, 2012 WL 787202, at *2

(D. Or. Jan. 23, 2012) (“Neither the United States, federal agencies, nor federal
officers sued in their official capacity qualify as ‘citizens of different states.’”). As
Defendants are, variously, agencies and instrumentalities of the federal government,
they do not qualify as citizens of other states in order to confer diversity jurisdiction
in this case.
As for supplemental jurisdiction, 28 U.S.C. § 1367(a) provides that courts may
exercise supplemental jurisdiction over related claims except “as expressly provided

otherwise by Federal statute.” Here, as discussed above, federal statutes have
expressly conferred jurisdiction for Plaintiff’s breach of contract claim on a particular
court, the Court of Federal Claims, and deprived this Court of jurisdiction to consider
such claims. The exercise of supplemental jurisdiction is barred.
This Court therefore lacks jurisdiction to consider Plaintiff’s claim for breach
of contract.

V. Lack of Personal Jurisdiction
Defendants move to dismiss this action pursuant to Rule 12(b)(5) for lack of
personal jurisdiction based on a failure to properly serve Defendants. “Service of
summons is the procedure by which a court having venue and jurisdiction of the
subject matter of the suit asserts jurisdiction over the person of the party served.”
Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 107 (1987) (internal
quotation marks and citation omitted, alterations normalized). “Before a federal
court may exercise personal jurisdiction over a defendant, the procedural
requirement of service of summons must be satisfied.” Id.

Plaintiff has filed returns of service executed on the Defendants, each of which
bears Plaintiff’s signature and affirms that he personally served the named
Defendant. ECF Nos. 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24. This is improper
service, as Rule 4(c)(2) requires that service be performed by a person “who is at least
18 years old and not a party.” Fed. R. Civ. P. 4(c)(2) (emphasis added). “A federal
court is without personal jurisdiction over a defendant unless the defendant has been
served in accordance with Fed. R. Civ. P. 4.” Crowley v. Bannister, 734 F.3d 967, 974-

75 (9th Cir. 2013) (internal quotation marks and citation omitted).
In an effort to demonstrate service of process, Plaintiff has submitted exhibits
showing that the various Defendants received the mailing of the summons and
complaint. Resp. Ex. B. This does not cure the defect in service in that it does not
demonstrate that service was performed by someone other than Plaintiff. As this
Court has previously observed: “A defendant’s actual knowledge that a complaint was

filed does not cure defects in service; service of process in accord with Rule 4 is still
required.” Garcia v. Jones, Civ. No. 6:22-cv-00118-AA, 2022 WL 2754853, at *4 (D.
Or. July 14, 2022). “Additionally, the United States Supreme Court has held that the
liberal reading granted to pro se pleadings does not extend to excusing the failure of
pro se litigants to comply with clear procedural requirements.” Id. (citing McNeil v.
United States, 508 U.S. 106, 113 (1993)). A failure to properly serve a defendant by
reason of service being done by the plaintiff themselves can justify dismissal of the
claims. Mecautea v. Oregon, Case No. 3:19-cv-01864-MO, 2020 WL 1812012, at *2
(D. Or. April 9, 2020).

Here, the Court concludes that, in light of the other defects in standing and
jurisdiction, the proper remedy is dismissal rather than quashing service.
VI. Improper Venue
Defendants also move to dismiss this action for improper venue. Here,
Plaintiff’s claims are all linked by a common nucleus of operative fact. Am. Compl.
13 (Describing Plaintiff’s APA claim and stating that “[t]he next three Claims are
linked and support” the APA claim). When a plaintiff brings multiple claims, all

claims that arise out of the same nucleus of operative fact should be considered one
cause of action for venue purposes. Almont Ambulatory Surgery Center, LLC v.
UnitedHealth Grp., Inc., 99 F. Supp.3d 1110, 1164 (C.D. Cal. April 10, 2015) (citing
Pacer Global Logistics, Inc. v. Nat’l Passenger R.R. Corp., 272 F. Supp.2d 784, 790-91
(E.D. Wis. 2003)).
Here, Plaintiff’s claims for patent infringement and breach of contract must be

brought in the Court of Federal Claims, as discussed in the previous sections.
Because Plaintiff’s APA claim and negligence claims share a common nucleus of fact
with those claims, venue for those claims is proper in the Court of Federal Claims,
rather than in the District of Oregon. In addition, as discussed in the previous
section, Plaintiff lacks standing to assert the APA, contract, and negligence claims
because Plaintiff is attempting to litigate them on behalf THI, rather than on his own
behalf. Dismissal of all claims is therefore proper. Dismissal will be without
prejudice so that THI may, if it wishes, pursue its own claims with the assistance of
counsel, and so that those claims, and any other claims that might be personal to

Plaintiff, might be refiled in the Court of Federal Claims, which has exclusive
jurisdiction over the patent and contract claims raised in this case.
CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss, ECF No. 32, is
GRANTED. This case is DISMISSED without prejudice but without further leave to
amend in the District of Oregon. All other pending motions are DENIED as MOOT.
Final judgment shall be entered accordingly.

It is so ORDERED and DATED this 29th day of January 2024.

s/ Ann Aiken
ANN AIKEN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396956. Public record. Not legal advice.