In the United States Court of Federal Claims

No. lS~lllOC

(Filed: October 17, 2018)

(N()T TO BE PUBLISHED)
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L. RUTHER, )

)

Plaintiff, )

)

v. )

)

UNITED STATES, )
)

Defendant. )

)

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L. Ruther, pro se, Manassas, VA.

Sonia W. Murphy, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant With her on the brief Were Chad
A. Readler, Acting Deputy Assistant Attorney General, Civil Division, and Robert E. Kirschman,
Jr., Dircctor, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branoh, Civil
Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER
LETTOW, Senior Judge.

Plaintiff L. Ruther, also known as Larry Ruther, has brought suit Seeking damages and
equitable relief against the United States, mentioning the United States District Court for the
Eastern District of Kentucky, a judge of that court, and the Departrnent of Veterans Affairs.
Cornpl. at 4-5.] The complaint appears to allege that the District Court for the Eastern District of
Kentucky, by dismissing a contract suit in 2007, violated the Tal<ings Clause of the Fifth
Amendment and deprived Mr. Ruther of his Seventh Amendrnent right to a jury trial. Compl. at
3, 4. The complaint also suggests that the U.S. Attorney for the Eastern District of Kentucky
failed to pursue a Wire fraud complaint, which Was potentially related to the contract claim.
Compl. at 4.

 

1l\/Ir. Ruther’s complaint is handwritten, and consists largely of phrases and broken
sentences. The pagination of the complaint as cited in this opinion corresponds to the page
marking of the complaint as reproduced in the ECF system.

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The United States (“the government”) has moved to dismiss the complaint pursuant to
Rule 12(b)(1) of the Rules of the Court of Federai Clairns (“RCFC”). See Def.’S Mot. to Dismiss
(“Def.’s I\/iot.”), ECF No. 8, Because this court lacks subject-matter jurisdiction over the
compiaint, the government’s motion to dismiss l\/Ir. Ruther’s complaint is GRAN”[`ED.2

BACKGROUND

l\/Ir. Ruther is no stranger to the federal courts. “Ruthcr has a longstanding history of
filing frivolous lawsuits in this court,” noted a federal district court, 17 years ago. Ruther v.
Sfafe Farm Mut Ins. Co. , No. 01-671-A, 2001 WL 34360376 (E.D. Va. June 18, 2001), a)j"d, 21
Fed. Appx. 230 (4th Cir. 2001). Since then, l\/ir. Ruther has filed at least 35 cases in 13 federal
district courts, although this appears to be his first foray into the Court of Federal Clairns.3 A

 

2?\/lr. Ruther has requested a hearing before the court. See Pl.’s l\/Iot. for Telephonic
Hearing (“Pl.’s Mot.”), ECF No. 7. The court considers that a hearing is not necessary, and the
motion for a hearing is accordingly DENIED.

3E.g_, Rulher v. Gash, 264 F. Supp. 3d 69 (D.D.C. 2017); Ruther v. VSP N. Am. LLC, No.
17-1747, 2017 WL 6886307 (D.D.C. Oct. 5, 2017); Ruther v. Mfchigan, No. 17-1957, 2017 WL
6551189 (D.D.C. Oct. 2, 2017); Ruther v. Common Collect LLC, No. 17-1405, 2017 WL
6551194 (D.D.C. Aug. 14, 2017), aij’d Sub nom, Ruther v. Gash, 707 Fed. Appx. 3 (l\/Iem.) (D.C.
Cir. 2017) (per curiam); Rufher v. G6 Hospitality LLC, No. 17~1406, 2017 WL 6551185 (D.D.C.
Aug. 14, 2017)', Ruther v. Gannett Sa£ellz`te Network, Inc., No. 17»1381, 2017 WL 6549772
(D.D.C. Aug. 14, 2017); Rufher v. Lamb Ctr., No. 17-1404, 2017 WL 4765748 (D.D.C. Aug. 14,
2017); Rw‘her v. Sequential Brcmds Grp. Inc., No. 17~1379, 2017 WL 3493109 (D.D.C. Aug. 11,
2017), a]jf’d, 707 Fed. Appx. 3 (Mem.) (D.C. Cir. 2017) (per curiam); Ruther v. Unfted Si‘m‘es,
No. l7~cv»517, 2017 WL 4535715 (W.D. Mich. July 7, 2017);, Ruther v. VSPN Am. LLC, No.
17-cv-441, 2017 WL 7371197 (W.D. l\/iich. June 6, 2017); Rulher v. Ml`chz`gan, No. l7-cv~
10176, 2017 WL 2351971 (E.D. Mich. May 31, 2017); Rufher v. Anderson, No. 5:14cv73, 2016
WL 2993478 (N.D. W. Va. Apr. 15, 2016); Ruther v. PLC Mgmt LLC, No. C15-0781, 2015 WL
13145809 (W.D. Wash. July 16,2015);}{1,11]1€1' v. Anderson, No. 5:14cv73, 2015 WL 12979107
(N.D. W. Va. l\/far. 2, 2015)‘, Ruther v. Anderson, No. 2:13-cv-32919, 2014 WL 2208081 (S.D.
W. Va. May 28, 2014); Ruther v. Tennessee, No. 1:13-cv-01642, 2013 WL 12212965 (M.D. Pa.
Sep. 17, 2013); Ruther v. State ofTennesSee Oj’icer, No. 1:13-cv~01642, 2013 WL 3784991
(M.D. Pa. July 18, 2013); Rufher v. Um`led Stares Ojjicers, No. l3-cV-1640, 2013 WL 4041592
(M.D. Pa. Aug. 8, 2013)', Rulher v. State Kenlucky Ojj/icers, No. 1:13-cv~1641, 2013 WL
3525032 (M.D. Pa. July ll, 2013), ajj"’a’, 556 Fed. Appx. 91 (Mem.) (3d Cir. 2014) (per curiam);
Ruther v. Accor N. Am., Inc., No. 11-00227, 2011 WL 3567435 (E.D. Ky. Aug. ll, 2011);
Ruther v. Lynch, Cox, Gilman, Mahan PSC, No. 3:10cV-772, 2011 WL 1587345 (W.D. Ky. Apr.
26, 2011); Ruiher v. Sumrusr Bank, No. 3:10-cv-318, 2010 WL 3170519 (E.D. Tcnn. Aug. 10,
2010); Ruther v. Gash, No. 3:100v-150, 2010 WL 2106633 (W.D. Ky. May 24, 2010); Rufher v.
United States Ojicers, No. 3:100v-291, 2010 WL 1995655 (W.D. Ky. May 19, 2010); Ruther v.
Comretas, No. 3:09cv-495, 2009 WL 8729588 (E.D. Va. Sep. 25, 2009), ade, 396 Fed. Appx.
285 (4th Cir. 2010) (per curiam); Rui‘her v. Auto Nation, Inc, No. 09-cv~139, 2009 WL 1383303
(E.D. Ky. May 15 , 2009); Rurher v. State Kentuc}g) Ojj?cers, No. 3:09cv-40~H, 2009 WL

2

 

common theme throughout the opinions dismissing his complaints is that Mr. Ruther files barely
legible complaints consisting of, when readable, frivolous claims.

Of relevance here, in 2007 Mr. Ruther filed a complaint in federal district court against
Commonwealth Collections. Ruther v. Commonwealth Collections LLC, No. 07-cv~10-KKC,
2007 WL 914190 (E.D. Ky. Mar. 22, 2007). That court interpreted his complaint as a potential
contract claim, but due to illegibiiity, could not discern subject~matter jurisdiction and dismissed
Id., at * l. The complaint contained what appeared to be a contract labeled as a “Purchase Order”
that referenced “Barry Gash,” seemed to be dated October 16, 2006, and provided that Mr.
Ruther would pay $59,000 for a guaranteed profit of $59,000, or a total return of $l 18,000. Id.,
at *2. The district judge ordered that the case be dismissed on March 22, 2007. Id., at *4.

ln the present compiaint, it appears that Mr. Ruther takes issue with the dismissal of
Commonwealth Collections. His complaint narrative opens with “Judge . . . USD Court Lexing
KY 07 CV Ruth v. Cornmon Collect, Barry Gash, $1l8,000.” Compl. at 4. The complaint
includes a purchase order with the same information as in Commonwealth Collections. Compl.
at 3. Mr. Ruther then states that “[c]ourt take asset, no pay value, no jury trial, summon,
subpoena, [illegible] hearing.” Compl. at 4 jj 1. He requests damages of 81 1 8,000 or
38,000,000, and asks this court to order the Department of Justice to initiate a special counsel
investigation of the federal courts Compl. at 4; Pl.’s Mot. {[ 1.

STANDARI)S FOR DECISION
Rule 12{[)) (I) - Lack ofSubject-Marter Jurisdz'ction

The Tucker Act provides this court with jurisdiction over “any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § l491(a)(l). To
invoke this court’s Tucker Act jurisdiction, “a plaintiff must identify a separate source of
substantive law that creates the right to money damages.” F!'sher v. United Srates, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing United Smtes v. Mitchelf, 463 U.S.
206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (1976)). lf a plaintiff fails to raise a

 

1298166 (W.D. Ky. May 8, 2010); Ruther v. State ofFlorida Ojjicers, No. 3:08~cv~691-J-
25TEl\/1, 2008 WL 5120907 (M.D. Fla. Dec. 4, 2008); Ruther v. Kentucky, No. 3:08cv~425-S,
2008 WL 4949052 (W.D. Ky. Nov. 14, 2008); Securiffes & Exch. Comm ’n v. Pinnacle Dev.
Partners LLC, No. 1:06-cv-2341~JTC, 2008 WL 11336129, at *1~2 (N.D. Ga. May 21, 2008)
(reciting Ruther’s attempts to intervene and file other motions); Ruther v. United Smtes Supreme
Court Ojj”zcers, No. 6:07-cv-1872~Orl-18DAB, 2008 WL 508406 (M.D. Fla. Feb. 21, 2008);
Ruther v. Gash, No. 3:07~cv-P369-H, 2008 WL 440284 (W.D. Ky. Feb. l3, 2008); Rulher v.
Wez`chert Real Estale, Inc., No. 3:06-cv~00668-JR, 2006 WL 5444360 (E.D. Va. Oct. 11, 2006);
Ruther v. O’Neal, No. CIV A 06-cV-303-JMH, 2006 WL 2795508 (E.D. Ky. Sep. 26, 2006);
Ruther v. Kochaniec, No. 604CV1366ORL19JGG, 2005 WL 1226975 (M.D. Fla. May 3, 2005).

3

 

claim under a money-mandating provision, this court “should [dismiss] for lack of subject matter
jurisdiction.” Jan's Helicopler Serv., Inc. v. Federal Aviation Admz'n., 525 F.3d l299, 1308 (Fed.
Cir. 2008) (quoting Greenlee Cty. v. United States, 487 F.3d 871, 876 (Fed. Cir. 2007)).

A claim in this court is “ban'ed unless the petition thereon is filed within six years after
such claim first accrues.” 28 U.S.C. § 2501. This six-year statute of limitations is jurisdictional
John R. Scmd & Gravel Co. v. United States, 552 U.S. 130 (2008).

Mr. Ruther, as plaintiff, must establish jurisdiction by a preponderance of the evidence
Trusfed lategration, Inc. v. United States, 659 F.3d 1159, ll63 (Fed. Cir. 2011) (citing Reynolds
v. Army & Afr Force Exch. Serv., 846 F.2d 746, 748 (Fed, Cir. l988)). When ruling on a motion
to dismiss for lack ofjurisdiction, the court must “accept as true all undisputed facts asserted in
the plaintiff’ s complaint and draw all reasonable inferences in favor of the plaintif .” Ia’. (citing
Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). “lf a court lacks jurisdiction to
decide the merits of a case, dismissal is required as a matter of law.” Gray v. United States, 69
Fed. Cl. 95, 98 (2005) (citing Exparte McCardle, 74 U.S. (7 Wall.) 506, 514 (l868); Thoen v.
United Slates, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also RCFC l2(h)(3) (“lf the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.”).

ANALYSIS
Ruie 12(11)(1) - Lack of Subject-Matter Jurisdiction

For this court to exercise jurisdiction over any of Mr. Ruther’s claims, it must do so under
the Tucker Act, 28 U.S.C. § 1491(a). Other statutory grants of jurisdiction to this court appear to
be inapplicable

The government characterizes the complaint as a contract dispute and contends that Mr.
Ruther has failed to establish jurisdiction because he “does not legibly allege the existence of any
express or implied-in-fact contract with the United States.” Def.’s Mot. at l.

Nonetheless, reading Mr. Ruther’s complaint liberally, Mr. Ruther appears to base his
suit not in contract, but on the Takings Clause of the Fifth Amendment. Compl. at 4 (“Court
take asset, no pay value,” in reference to the dismissal of his contract suit in 2007). While Fifth
Amendment Takings Clairns are cognizable in this court, an adverse judicial ruling is not a
governmental taking.

Mr. Ruther also mentions the Sixth Amendment, Compl. at 4 (header) (“suit l79l US 5,
6, 7”), but this amendment applies to a criminal defendant, U.S. Const. amend. VI, which Mr.
Ruther is not. He mentions a deprivation of a right to a jury trial, possibly in reference to the
dismissal of his contract suit in 2007. Compl. at 4 (“No jury trial . . . 1791 US 7 Contract $20 . .
. ”). He additionally cites the Thirteenth, Compl. at 4 (“1865 US 13 US Slave I stop jury trial”),
and Fourteenth Amendments, Compl. at 4 (“1868 US l4 Equal Protect”). Even aside from Mr.

 

Ruther’s failure to explain his reasoning for citing these amendments or to allege facts to support
any claim under them, claims under the Seventh, Thirteenth, and Fourteenth Amendrnents are
not money-mandating, and this court thus lacks jurisdiction over claims based upon them. See
Jaffer v. United Stafes, No. 95-5127, 1995 WL 592017, at *2 (Fed. Cir. Oct. 6, 1995) (Seventh
Amendment); Smith v. United States, No. 11-436C, 20l2 WL 676709, at *3 (Fed. Cl. Feb. 27,
2012) (Thirteenth Amendment); Sta.nwyck v. United Stal'es, 127 Fed. Cl. 308, 315 (20l6)
(Fourteenth Amendment).

Mr. Ruther’s complaint also notably fails to set out “a short and plain statement of the
grounds for the court’s jurisdiction” or “a short and plain statement of the claim showing that the
pleader is entitled to relief.” RCFC 8(a). His suit would be, and is, unavailing on that basis
alone. See, e,g., Ruther v. Sequem‘iaf Brands Grp. Inc., 707 Fed. Appx. 3 (l\/Iern.) (D.C. Cir.
2017) (per curiam) (ruling that the district court did not abuse its discretion in dismissing
Ruther’s complaint for failure to comply with Fed. R. Civ. P. 8(a)); Rui!her v. Gash, 707 Fed.
Appx. 3 (Mem.) (D.C. Cir. 2017) (per curiam) (same).

Finally, any claim Mr. Ruther might have had based on events in 2007, when the District
Court for the Eastern District of Kentucky dismissed his contract complaint, would have expired
more than five years ago.

CONCLUSION

For the reasons stated, the government’s motion to dismiss Mr. Ruther’s complaint is
GRANTED. Mr. Ruther’s complaint shall be l)lSl\/IISSED.4 The clerk shall enter judgment
accordingly

No costs.
lt is so ORDERE]].

M%M

CharlesVF. Lettow
Senior Judge

 

ljfAs noted szmra, at 2 n.2, Mr. Ruther’s motion for a hearing is DENlED.

5

 

