                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


LLOYD J. FLEMING,                                      )
                                                       )
                       Plaintiff,                      )
                                                       )
                       v.                              )   Civil Action No. 12-0330 (RJL)
                                                       )
RICHARD COWARD etal.,                                  )
                                                       )
                        Defendants.                    )



                                    M~M~-~'/2 OPINION
                                    ~p~_,2012)

        Plaintiff, proceeding pro se, filed this action in the Superior Court of the District of

Columbia against multiple defendants, including federal and District of Columbia employees.

The named federal defendants, Arun C. Williams and Patrick Assouad, removed the case to this

Court on March 1, 2012, because plaintiff appears to allege in his amended complaint that his

patent application was rejected. 1 See Notice of Removal of a Civil Action [Dkt. # 1] ~ 3. The

federal defendants now move to dismiss the complaint under Rules 8(a), 12(b)(l), 12(b)(3),

12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure or for summary judgment under

Rule 56. See generally Mot. to Dismiss [Dkt. # 24].

       Plaintiff has not refuted defendants' evidence showing that he has not exhausted his

administrative remedies with regard to his patent application, see generally Decl. of Brian

Hanlon [Dkt. # 24-1], and the exhaustion of administrative remedies is a jurisdictional




       1  The complaint presents no facts implicating Williams and Assouad in any misconduct
and, thus, is considered to be brought against them in their official capacity as patent examiners
at the U.S. Patent and Trademark Office. See Notice of Removal~ 2.
prerequisite to filing a civil lawsuit arising from the denial of a patent. Leighton v. Coe, 130 F .2d

841,842 (D.C. Cir. 1942); see Bullardv. United States, No. 09-1670,2009 WL 2872739, at *1

(D.D.C. Sept. 2, 2009) ("The plaintiffhas not received a decision from the Board of Patent

Appeals and thus this Court does not have jurisdiction over this action in the absence of a final

agency decision, pursuant to 35 U.S.C. § 145 and 5 U.S.C. § 704.") (quoting Field v. Manbeck,

No. 90-1030, 1990 WL 116818, at *3 (D.D.C. Aug. 2, 1990)). Hence, the Court will grant the

federal defendants' motion to dismiss under Rule 12(b)( 1) for lack of jurisdiction and remand the

case to Superior Court pursuant to 28 U.S.C. § 1447(c) (2006). A separate Order accompanies

this Memorandum Opinion.                                    t



                                                ~
                                               United States District Judge




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