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66 77 United States District Court 88 Central District of California 99 1100 FIRPO WYCOFF CARR, Case № 2:23-cv-01813-ODW (MAAx) 1111
1122 Plaintiff, ORDER GRANTING 1133 v. DEFENDANTS’ 1144 FEDERAL BUREAU OF MOTION TO DISMISS [64] INVESTIGATION et al., 1155 Defendants. 1166 1177 I. INTRODUCTION 1188 Plaintiff Firpo Wycoff Carr brings this action against Defendants Federal Bureau 1199 of Investigation (“FBI”) and the United States Department of Justice (“DOJ”) for claims 2200 under Bivens and the Federal Tort Claims Act (“FTCA”), arising out of an incident at a 2211 Panera Bread on November 26, 2022. (Second Am. Compl. (“SAC”), ECF No. 59.1) 2222 Defendants now move to dismiss this action pursuant to Federal Rules of Civil 2233 Procedure (“Rules”) 12(b)(1) and 12(b)(6). (Mot. Dismiss (“Motion” or “Mot.”), ECF 2244 No 64.) For the following reasons, the Court GRANTS Defendants’ Motion.2 2255
2266 1 Carr titles this document “Complaint for Bivens Claims Under the United States Constitution and for Federal Tort Claims Act (Amended).” For clarity, the Court refers to this document as the Second 2277 Amended Complaint. 2 The Court carefully considered the papers filed in connection with the Motion and deemed the matter 2288 appropriate for decision without oral argument. Fed. R. Civ. P. 78, Cal. L.R. 7-15. 1 II. BACKGROUND 2 The following facts are taken from Carr’s Second Amended Complaint. Well- 3 pleaded factual allegations are accepted as true for purposes of a motion to dismiss 4 under Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, 5 because Defendants base their Rule 12(b)(1) jurisdictional challenge entirely on Carr’s 6 allegations without submitting their own evidence, Defendants’ challenge is properly 7 characterized as a “facial” attack. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 8 2014). When evaluating a facial attack, the Court accepts “the plaintiff’s allegations as 9 true and draw[s] all reasonable inferences in the plaintiff’s favor.” Id. (citing Pride v. 10 Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)). 11 Carr alleges that, since 1989, Defendants “have been heavily surveilling, stalking, 12 and cyberstalking” him. (See SAC ¶ 23.) Specifically, Carr alleges that on 13 November 26, 2022, an undercover FBI Special Agent “posed as a person experiencing 14 homelessness” and stole certain items from Carr when he “momentarily stepped away 15 from the table he sat at while dining at Panera Bread” (the “Panera Incident”). (Id.) 16 Ultimately, Carr asserts that, “under the auspices of the Foreign Intelligence 17 Surveillance Act of 1978” (“FISA”), the FBI and DOJ conspired with the manager of 18 Panera Bread to steal his electronic devices, including his laptop, phone, computer 19 tablet, headphones, and a beige satchel. (Id.) Carr surmises that the FBI and DOJ stole 20 his electronic devices because they believe that he is a foreign spy for the “Communist 21 Red Chinese,” which he alleges is based on his past employment as a cyber expert with 22 the Los Angeles Police Department and his international travels to China, the Soviet 23 Union, and Cuba. (Id. ¶¶ 23, 36.) 24 On March 10, 2023, Carr filed this action, alleging that Defendants stole his 25 laptop and other electronic devices. (See Compl., ECF No. 1.) On July 27, 2023, the 26 Court granted Defendants’ first motion to dismiss Carr’s Complaint under 27 Rule 12(b)(1) because Carr’s claims were facially implausible and devoid of merit, 28 rendering them insufficient to confer this Court with jurisdiction. (Order Grant. Mot. 1 Dismiss (“Order”) 5–7, ECF No. 43.) The Court specifically noted Carr’s failure to 2 plausibly connect the theft to the FBI, because his allegations were “speculative, 3 implausible, and otherwise not well-pleaded.” (Id. at 6.) 4 Although the Court expressed “doubts that amendment would cure” the 5 deficiencies identified in the Court’s Order, the Court granted Carr leave to amend his 6 Complaint. (Id. at 7–8.) On September 9, 2023, Carr filed his SAC,3 which included 7 two new bases that purportedly connect the FBI and DOJ to the Panera Incident. (See 8 SAC.) Defendants now again move to dismiss Carr’s SAC under Rule 12(b)(1) for lack 9 of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. (See 10 generally Mot.) 11 III. LEGAL STANDARD 12 “Federal courts are courts of limited jurisdiction. They possess only that power 13 authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of 14 Am., 511 U.S. 375, 377 (1994). As such, a federal court has subject matter jurisdiction 15 over “civil actions arising under the Constitution, laws, or treaties of the United States.” 16 See U.S. Const. art. III, § 2, cl. 1; 28 U.S. C. § 1331; see also Kokkonen, 511 U.S. 17 at 377. The party attempting to invoke the court’s jurisdiction bears the burden of 18 establishing jurisdiction. See Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 19 (9th Cir. 1995). 20 Under Rule 12(b)(1), a district court must dismiss an action if it lacks subject 21 matter jurisdiction over the suit. Fed. R. Civ. P. 12(b)(1). However, “federal courts are 22 without power to entertain claims otherwise within their jurisdiction if they are ‘so 23 attenuated and unsubstantial as to be absolutely devoid of merit.’” Hagans v. Lavine, 24 415 U.S. 528, 536–37 (1974) (quoting Newburyport Water Co. v. Newburyport, 25 193 U.S. 561, 579 (1904)); see also Neitzke v. Williams, 490 U.S. 319, 327 n.6 (1989) 26 27 3 Carr filed his First Amended Complaint on August 28, 2023, (First Am. Compl., ECF No. 53), but 28 then filed a Second Amended Complaint to make numerous clerical corrections. The Court accepted the Second Amended Complaint as the operative pleading. (Min. Order, ECF No. 63.) 1 (“A patently insubstantial complaint may be dismissed, for example, for want of 2 subject-matter jurisdiction under [Rule] 12(b)(1).”). 3 Essentially, federal courts lack subject matter jurisdiction to consider claims that 4 are “so insubstantial, implausible, foreclosed by prior decisions . . . or otherwise 5 completely devoid of merit as not to involve a federal controversy.” See Cook Inlet 6 Region, Inc. v. Rude, 690 F.3d 1131 (9th Cir. 2012) (quoting Steel Co. v. Citizens for a 7 Better Env’t, 523 U.S. 83, 89 (1998)); see also Cook v. Peter Kiewit Sons Co., 775 F.2d 8 1030, 1035 (9th Cir. 1985) (“Under the substantiality doctrine, the district court lacks 9 subject matter jurisdiction when the question presented is too insubstantial to consider.” 10 (citing Hagans, 415 U.S. at 536–39)). 11 IV.
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66 77 United States District Court 88 Central District of California 99 1100 FIRPO WYCOFF CARR, Case № 2:23-cv-01813-ODW (MAAx) 1111
1122 Plaintiff, ORDER GRANTING 1133 v. DEFENDANTS’ 1144 FEDERAL BUREAU OF MOTION TO DISMISS [64] INVESTIGATION et al., 1155 Defendants. 1166 1177 I. INTRODUCTION 1188 Plaintiff Firpo Wycoff Carr brings this action against Defendants Federal Bureau 1199 of Investigation (“FBI”) and the United States Department of Justice (“DOJ”) for claims 2200 under Bivens and the Federal Tort Claims Act (“FTCA”), arising out of an incident at a 2211 Panera Bread on November 26, 2022. (Second Am. Compl. (“SAC”), ECF No. 59.1) 2222 Defendants now move to dismiss this action pursuant to Federal Rules of Civil 2233 Procedure (“Rules”) 12(b)(1) and 12(b)(6). (Mot. Dismiss (“Motion” or “Mot.”), ECF 2244 No 64.) For the following reasons, the Court GRANTS Defendants’ Motion.2 2255
2266 1 Carr titles this document “Complaint for Bivens Claims Under the United States Constitution and for Federal Tort Claims Act (Amended).” For clarity, the Court refers to this document as the Second 2277 Amended Complaint. 2 The Court carefully considered the papers filed in connection with the Motion and deemed the matter 2288 appropriate for decision without oral argument. Fed. R. Civ. P. 78, Cal. L.R. 7-15. 1 II. BACKGROUND 2 The following facts are taken from Carr’s Second Amended Complaint. Well- 3 pleaded factual allegations are accepted as true for purposes of a motion to dismiss 4 under Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, 5 because Defendants base their Rule 12(b)(1) jurisdictional challenge entirely on Carr’s 6 allegations without submitting their own evidence, Defendants’ challenge is properly 7 characterized as a “facial” attack. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 8 2014). When evaluating a facial attack, the Court accepts “the plaintiff’s allegations as 9 true and draw[s] all reasonable inferences in the plaintiff’s favor.” Id. (citing Pride v. 10 Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)). 11 Carr alleges that, since 1989, Defendants “have been heavily surveilling, stalking, 12 and cyberstalking” him. (See SAC ¶ 23.) Specifically, Carr alleges that on 13 November 26, 2022, an undercover FBI Special Agent “posed as a person experiencing 14 homelessness” and stole certain items from Carr when he “momentarily stepped away 15 from the table he sat at while dining at Panera Bread” (the “Panera Incident”). (Id.) 16 Ultimately, Carr asserts that, “under the auspices of the Foreign Intelligence 17 Surveillance Act of 1978” (“FISA”), the FBI and DOJ conspired with the manager of 18 Panera Bread to steal his electronic devices, including his laptop, phone, computer 19 tablet, headphones, and a beige satchel. (Id.) Carr surmises that the FBI and DOJ stole 20 his electronic devices because they believe that he is a foreign spy for the “Communist 21 Red Chinese,” which he alleges is based on his past employment as a cyber expert with 22 the Los Angeles Police Department and his international travels to China, the Soviet 23 Union, and Cuba. (Id. ¶¶ 23, 36.) 24 On March 10, 2023, Carr filed this action, alleging that Defendants stole his 25 laptop and other electronic devices. (See Compl., ECF No. 1.) On July 27, 2023, the 26 Court granted Defendants’ first motion to dismiss Carr’s Complaint under 27 Rule 12(b)(1) because Carr’s claims were facially implausible and devoid of merit, 28 rendering them insufficient to confer this Court with jurisdiction. (Order Grant. Mot. 1 Dismiss (“Order”) 5–7, ECF No. 43.) The Court specifically noted Carr’s failure to 2 plausibly connect the theft to the FBI, because his allegations were “speculative, 3 implausible, and otherwise not well-pleaded.” (Id. at 6.) 4 Although the Court expressed “doubts that amendment would cure” the 5 deficiencies identified in the Court’s Order, the Court granted Carr leave to amend his 6 Complaint. (Id. at 7–8.) On September 9, 2023, Carr filed his SAC,3 which included 7 two new bases that purportedly connect the FBI and DOJ to the Panera Incident. (See 8 SAC.) Defendants now again move to dismiss Carr’s SAC under Rule 12(b)(1) for lack 9 of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. (See 10 generally Mot.) 11 III. LEGAL STANDARD 12 “Federal courts are courts of limited jurisdiction. They possess only that power 13 authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of 14 Am., 511 U.S. 375, 377 (1994). As such, a federal court has subject matter jurisdiction 15 over “civil actions arising under the Constitution, laws, or treaties of the United States.” 16 See U.S. Const. art. III, § 2, cl. 1; 28 U.S. C. § 1331; see also Kokkonen, 511 U.S. 17 at 377. The party attempting to invoke the court’s jurisdiction bears the burden of 18 establishing jurisdiction. See Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 19 (9th Cir. 1995). 20 Under Rule 12(b)(1), a district court must dismiss an action if it lacks subject 21 matter jurisdiction over the suit. Fed. R. Civ. P. 12(b)(1). However, “federal courts are 22 without power to entertain claims otherwise within their jurisdiction if they are ‘so 23 attenuated and unsubstantial as to be absolutely devoid of merit.’” Hagans v. Lavine, 24 415 U.S. 528, 536–37 (1974) (quoting Newburyport Water Co. v. Newburyport, 25 193 U.S. 561, 579 (1904)); see also Neitzke v. Williams, 490 U.S. 319, 327 n.6 (1989) 26 27 3 Carr filed his First Amended Complaint on August 28, 2023, (First Am. Compl., ECF No. 53), but 28 then filed a Second Amended Complaint to make numerous clerical corrections. The Court accepted the Second Amended Complaint as the operative pleading. (Min. Order, ECF No. 63.) 1 (“A patently insubstantial complaint may be dismissed, for example, for want of 2 subject-matter jurisdiction under [Rule] 12(b)(1).”). 3 Essentially, federal courts lack subject matter jurisdiction to consider claims that 4 are “so insubstantial, implausible, foreclosed by prior decisions . . . or otherwise 5 completely devoid of merit as not to involve a federal controversy.” See Cook Inlet 6 Region, Inc. v. Rude, 690 F.3d 1131 (9th Cir. 2012) (quoting Steel Co. v. Citizens for a 7 Better Env’t, 523 U.S. 83, 89 (1998)); see also Cook v. Peter Kiewit Sons Co., 775 F.2d 8 1030, 1035 (9th Cir. 1985) (“Under the substantiality doctrine, the district court lacks 9 subject matter jurisdiction when the question presented is too insubstantial to consider.” 10 (citing Hagans, 415 U.S. at 536–39)). 11 IV. DISCUSSION 12 Defendants argue that Carr’s amended allegations are insufficient to provide the 13 Court with subject matter jurisdiction over this case. (Mot. 2–3.) Carr argues the Court 14 should deny Defendants’ Motion because he has now provided sufficient evidence 15 connecting the FBI and DOJ to the Panera Incident. (See Opp’n 8, ECF No. 65.) 16 A. Carr’s Initial Complaint 17 In his initial Complaint, Carr alleged that the Court had federal question 18 jurisdiction over this action under 28 U.S.C. § 1331. (See Compl. ¶¶ 4, 5.) However, 19 in granting Defendant’s first motion to dismiss, the Court found the link between 20 Defendants and the theft of Carr’s belongings to be so “implausible and devoid of merit” 21 that Plaintiff failed to sufficiently establish a federal controversy. (Order 6.) 22 In his initial Complaint, Carr included the following three bases establishing that 23 the FBI and DOJ were behind the theft of his laptop. (Compl. ¶¶ 6, 10.) First, Carr 24 alleged that a Panera Bread manager conspired with the FBI by calling away a server 25 that Carr had asked to watch his property while he stepped away from his table. (Id. 26 ¶¶ 9, 11.) Second, Carr alleged the FBI spoofed or took control of the email of Carr’s 27 colleague, Dr. Nakayama, by including in Dr. Nakayama’s email signature a 28 “photoshopped” or “deep fake” photo attempting to portray Dr. Nakayama as a 1 Communist Chinese military official. (Id. ¶¶ 18–19.) Carr alleges that the reason 2 behind this action was to implicate Carr by association. (Id.) Third, Carr alleged that 3 two purported undercover FBI agents approached him at a gas station to ask for gas 4 money. (Id. ¶ 37.) Carr ties this encounter to the FBI because, in return for gas money, 5 the “agents” offered Carr jewelry for his “wife or girlfriend.” (Id.) Carr speculates that 6 only FBI agents would have known he had a wife or girlfriend, and that he was not a 7 homosexual. (Id.) 8 In resolving Defendants’ first motion to dismiss, the Court concluded these 9 alleged connections between the FBI and DOJ and the theft of his electronic devices 10 were “wholly untenable, speculative, and without merit,” for they “are based on 11 everyday occurrences with natural, obvious explanations.” (Order 7.) As such, the 12 Court found that Carr failed to allege sufficient facts that establish an actual dispute 13 over which this Court has jurisdiction. The Court accordingly dismissed the Complaint 14 with leave to amend. (See id.) 15 B. Carr’s Additional Amended Allegations 16 In his Second Amended Complaint, Carr repeats the previous allegations and 17 adds two further reasons that connect Defendants to the Panera Incident. (See SAC 18 ¶¶ 24–34, 62.) 19 First, Carr adds the allegation that the FBI physically stalked him on numerous 20 occasions, including near the University of Phoenix campus in Ontario, California. 21 (SAC ¶ 26.) Carr supports this allegation by establishing that his computer’s settings 22 displayed a Wi-Fi network titled “FBI Cyber Ops Tm 6” when he was in the vicinity. 23 (Id. ¶¶ 26, 62.) However, this does not necessarily implicate the FBI and can easily be 24 based on everyday occurrences with obvious explanations. As individuals can change 25 their Wi-Fi network name to anything they wish, Carr’s allegation that he saw a network 26 name including “FBI” while at the University of Phoenix campus is again insufficient 27 to logically connect the FBI to the theft of Carr’s electronic devices at Panera Bread on 28 November 26, 2022. 1 Next, Carr alleges that the statements of Panera Bread’s general manager, Panera 2 Bread’s legal department, and Magistrate Judge Maria Audero regarding an alleged 3 FISA warrant “directly connect the theft of [Carr’s] belongings [to] the FBI as the 4 thieves.” (SAC ¶¶ 33–34; Opp’n 6, 9.) He attempts to support this connection with 5 several allegations. Carr suspects the FBI had shared warrant documentation with 6 Panera Bread before an alleged Special Agent (the one who “posed as a person 7 experiencing homelessness”) stole Carr’s property on November 26, 2022. (Id.) Carr 8 alleges that Panera Bread’s general manager, “whom Plaintiff had never met, seemed 9 to have full knowledge of the FBI-Panera Bread connection.” (SAC ¶ 32.) Carr fails, 10 however, to provide any facts supporting that the general manager had any such 11 knowledge. (See id.) Carr claims that in response to his request for documentation, 12 Panera Bread failed to produce certain documents, thereby helping to prove that the 13 company colluded with the FBI and DOJ to carry out the theft. (SAC ¶¶ 33–34; 14 Opp’n 6, 9.) Carr further argues Panera Bread acted nefariously and in bad faith by 15 misleading Magistrate Judge Audero regarding the handing over of “the documents” to 16 be provided to him via subpoena. (Id.) 17 Carr further argues that the statements by Panera Bread’s general manager—that 18 he would make Carr a copy of “all company correspondents and documentation related 19 to this matter”—is akin to a “confess[ion] to possessing FISA warrant documentation 20 received from the FBI.” (SAC ¶ 33.) According to Carr, these statements establish that 21 Panera was given a warrant under FISA, and thereby colluded with the FBI and DOJ. 22 These allegations are entirely meritless. This statement merely indicates Carr requested 23 information from Panera Bread via subpoena. Carr assumes, without factual support, 24 that the information Panera will provide in response to the subpoena is the suspected 25 FISA warrant itself. The Panera manager’s statements and Judge Audero’s comments 26 mentioning “the documents” are also insufficient and vague. (See id. ¶¶ 33–34.) Carr 27 fails to establish that a FISA warrant even exists, let alone that Panera Bread or Judge 28 1 Audero had knowledge of such a warrant. Therefore, again, these allegations fail to 2 link the FBI and DOJ to the theft of Carr’s electronic devices on November 26, 2022. 3 In conclusion, the Court finds Carr’s new purported examples of FBI and DOJ 4 conduct are again “insubstantial, implausible, [and] or otherwise completely devoid of 5 merit as not to involve a federal controversy.” Cook Inlet Region, Inc., 690 F.3d at 1131 6 (quoting Steel Co., 523 U.S. at 89). Thus, Carr fails to provide the Court with a basis 7 for exercising subject matter jurisdiction. 8 Courts have generally dismissed similar outlandish instances and explanations of 9 a federal agency’s alleged harassment. See Eide v. U.S. Dep’t of Just., No. 5:21-cv- 10 02005-SPG (JCx), 2022 WL 13701935, at *4 (C.D. Cal. Aug. 12, 2022), report and 11 recommendation adopted, No. 5:21-cv-02005-SPG (JCx), 2022 WL 13800510 12 (C.D. Cal. Oct. 20, 2022) (finding plaintiff’s allegations that the DOJ “wiretapped his 13 phones, hacked his computer and Sirius satellite signal, sent independent contractors 14 and agents to harass him at a church, a ski resort, a gym, and a dental office, ordered a 15 pharmacist not to refill a prescription, and paid two dentists to wrongly insist plaintiff 16 needs root canals” are “‘wholly insubstantial and frivolous’ and provide no basis for . . . 17 [exercising] subject matter jurisdiction” (quoting Bruns v. Nat’l Credit Union Admin., 18 122 F.3d 1251,1255 (9th Cir. 1997)); see also Kolev v. Davidi, No. 2:08-cv-05324- 19 DOC (RCx), 2008 WL 4447561, at *2 (C.D. Cal. Sept. 29, 2008) (“[F]ederal courts 20 have repeatedly dismissed claims brought by citizens who suspect federal agencies have 21 engaged in unlawful surveillance or wiretapping activities based upon nothing but a 22 personal belief as fantastic or delusional.” (citations and internal quotation marks 23 omitted)); Gonzalez v. City of Fresno, No. 1:11-cv-01458 AWI, 2012 WL 174959, at *3 24 (E.D. Cal. 2012) (“Plaintiff’s allegations that the [defendants] are a[] part of a criminal 25 conspiracy related to stalking, phone surveillance, and computer hacking is the type of 26 frivolous claim that is subject to dismissal for lack of jurisdiction.”). The Court finds 27 that the courts’ analyses in these cases apply to this case and render the same conclusion 28 reasonable. 1 V. CONCLUSION 2 For the reasons discussed above, the Court GRANTS Defendants’ Motion to 3 || Dismiss Plaintiffs’ Second Amended Complaint. (ECF No. 64.) Because the Court has 4|| previously granted Carr leave to amend his Complaint, and such amendment was 5 || unsuccessful, the Court DISMISSES Carr’s Second Amended Complaint WITHOUT 6 | LEAVE TO AMEND. The Clerk of the Court shall close this case. 7 8 IT IS SO ORDERED. 9 10 March 26, 2024 ~~ 1 NB. 5 13 OTIS D. GHT, I 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28