Kumar v. Attorney General USA

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROHIT KUMAR,
Plaintiff,
v. Case No. 1:23-cv-1314-RCL
MERRICK GARLAND, U.S. Attorney
General,
Defendant.
MEMORANDUM ORDER
In this peculiar dispute, the plaintiff Rohit Kumar, proceeding pro se, alleges that a cabal
of high-ranking federal officials have conspired for decades in a personally targeted campaign to
ruin his life through surveillance and sabotage. Kumar has sued Attorney General Merrick
Garland, although it is unclear whether he has named the Attorney General in his personal or
official capacity; similarly uncertain is whether Kumar seeks injunctive relief, damages, or both.
The answer to these uncertainties is ultimately inconsequential because, as the Attorney
General argues in the instant Motion to Dismiss, the Court is without subject-matter jurisdiction
to entertain this dispute. Accordingly, the defendant’s Motion is hereby GRANTED and the case
is DISMISSED.
I. Background
Kumar’s Amended Complaint, filed in June of 2023, spins a sordid tale full of conspiracy
and intrigue, though light on specific facts or narrative coherence. He claims that, since 2001, he
has been unlawfully surveilled by the FBI and DOJ at the behest of two former presidents, “W”
(i.e., President George W. Bush) and “Hussein” (i.e., President Barack Obama). Am. Compl. 5–
6, ECF No. 2. He claims that these actors have gotten him fired from dozens of jobs, foiled his
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efforts to obtain legal representation through intimidation and bribery, and thwarted his visa
petitions. Statement of Facts 1–2, Am. Compl. Attach. 1, ECF No. 2-1. He further claims that
these actors have attempted in both the United States and India to poison him by putting chemicals
in his food, coffee, or directly into his ear while he slept, and also that they have placed harassing
phone calls to him. Id. at 5–6. The Amended Complaint does not explain how these actors may
have come to know Kumar, why they might be targeting him, or how he knows they are behind
his alleged misfortunes. He claims that the FBI has records which would corroborate the alleged
plot, id. at 4, but does not explain how he knows such records exist.
On July 16, 2024, the Attorney General moved to dismiss the Amended Complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that the Court lacks
subject-matter jurisdiction and, alternatively, that Kumar has failed to state a claim. See generally
Mot. to Dismiss, ECF No. 28. In a subsequent Order, the Court counseled Kumar to provide the
Court with “facts beyond bare assertions” in his response to the Attorney General’s Motion. See
Order of July 16, 2024, ECF No. 30. However, Kumar’s response fails to address the deficiencies
identified in the defendant’s Motion. Instead, Kumar doubles down on his bizarre allegations: for
example, he adds an implausible interpersonal dimension to the dispute, claiming that he was
“instrumental” in convincing Senator Mitch McConnell to oppose the Attorney General’s
nomination to the Supreme Court, see Pl.’s Opp’n Ex. 2 at 5, ECF No. 31–2. He also argues that
certain judicial opinions from this Circuit cited in the Motion to Dismiss are “imaginary,” and
were planted by the “DC Cartel” specifically to frustrate his lawsuit. Id. at 4–5.
On July 30, 2024, the Attorney General filed a reply in support of the Motion to Dismiss.
Def.’s Reply, ECF No. 33. In addition to the Attorney General’s Motion to Dismiss, Kumar has
two motions pending: a Motion to Confirm Service of Process, ECF No. 19, and another which—
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although styled differently on the docket—is, in effect, a Motion for Leave to File a Surreply, ECF
No. 35. All three motions are now ripe for the Court’s review.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action where the
Court lacks subject-matter jurisdiction. “A plaintiff—even a pro se plaintiff—bears the burden of
establishing that the Court has subject matter jurisdiction.” Price v. Coll. Park Honda, No. 05-cv-
0624-PLF, 2006 WL 1102818, at *6 (D.D.C. Mar. 31, 2006) (citing Rosenboro v. Kim, 994 F.2d
13, 17 (D.C. Cir. 1993)). A court may consider materials beyond the pleadings in deciding whether
it has subject-matter jurisdiction. Am. Freedom L. Ctr. v. Obama, 821 F.3d 44, 49 (D.C. Cir.
2016). Moreover, because the Court has an obligation to independently assure itself of its subject-
matter jurisdiction, a plaintiff’s allegations “‘will bear closer scrutiny in resolving a 12(b)(1)
motion’ than in resolving a [Rule] 12(b)(6) motion for failure to state a claim.” Grand Lodge of
Fraternal Ord. of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (quoting 5A Charles
A. Wright & Arthur R. Miller, Fed. Prac. & Proc. § 1350 (2d ed. 1987)).
Federal Rule of Civil Procedure 12(b)(6) requires dismissal of an action when a plaintiff
fails to plead facts that, if accepted as true, suffice to state “a claim . . . that is plausible on its face,”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), and “upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). The plaintiff must allege enough to “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A court considering a 12(b)(6) motion to dismiss must accept the factual
allegations in the complaint as true for purposes of the motion, but need not accept “[t]hreadbare
recitals of the elements of a cause of action” or credit naked legal conclusions advanced by the
plaintiff. Id. Moreover, where a court is “confronted with both a motion to dismiss under both
Rule 12(b)(1) and Rule 12(b)(6), the Court must first consider whether it has subject-matter
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jurisdiction.” Hamilton v. United States, 502 F. Supp. 3d 266, 272 (D.D.C. 2020) (citing Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998)).
III. Analysis
The Court lacks subject-matter jurisdiction to entertain Kumar’s claims, so the case must
be dismissed pursuant to Rule 12(b)(1). Although a Court must credit a non-movant’s factual
allegations when adjudicating a motion to dismiss pursuant to Rule 12(b)(1), see Hill v. Smoot,
308 F. Supp. 3d 14, 18 (D.D.C. 2018), jurisdiction cannot be founded on claims that are “obviously
frivolous” or “essentially fictitious.” Hagans v. Lavine, 415 U.S. 528, 537 (1974) (first quoting
Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 (1910), then quoting Bailey v. Patterson,
369 U.S. 31, 33 (1962)). In keeping with the principle that a complaint “may not be dismissed . . .
simply because the court finds the plaintiff’s allegations unlikely,” Denton v. Hernandez, 504 U.S.
25, 33 (1992), a claim must be more than merely “doubtful or questionable” to deprive the federal
courts of subject-matter jurisdiction. Hagans, 415 U.S. at 538. Examples of claims that cross the
line into the “essentially fictitious” category, and which therefore warrant dismissal on
jurisdictional grounds, include those based on “fantastic government manipulations of [the
plaintiff’s] will or mind, any sort of supernatural intervention,” or, as pertinent here, “bizarre
conspiracy theories . . . .” Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994).
For comparison, in Newby v. Obama, the plaintiff set forth vague allegations that she was
being surveilled and stalked by various government agencies and high-ranking officials, including
former Presidents George W. Bush and George H.W. Bush, at least in part as a “political favor to
Phillips Petroleum Company . . . .” Newby v. Obama, 681 F. Supp. 2d 53, 54–55 (D.D.C. 2010).
The Newby court granted the defendant’s motion to dismiss under Rule 12(b)(1), holding that the
“patently insubstantial” and “frivolous” conspiracy theories set forth in the complaint could not
provide the court with subject-matter jurisdiction. Id. at 56 (citing Best, 39 F.3d at 330); see also
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Tooley v. Napolitano, 586 F.3d 1006, 1009–10 (D.C. Cir. 2009) (reiterating the “patently
insubstantial” standard and collecting cases in which plaintiffs alleged unsubstantiated claims of
governmental surveillance and harassment, each of which were dismissed for lack of subject-
matter jurisdiction).1
The allegations in Kumar’s Amended Complaint are at least as farfetched as those in
Newby, if not significantly more so. Kumar alleges a personally-directed, decades-long campaign
of surveillance, professional subversion, and assaults on his person, orchestrated at the very highest
echelons of the federal government. For all the enormity of his allegations, Kumar offers no
explanation as to how former Presidents Bush and Obama are even aware of him, let alone why
they would bother coordinating a covert, multi-year, multi-agency operation to ruin his life—or
how they could continue to do so after leaving office. Similarly lacking is any logical reason to
believe that these particular actors are pulling the strings of this alleged conspiracy, even if the
Court were to assume, for purposes of the Motion to Dismiss, that the conspiracy itself exists.
Kumar attempted to file a Second Amended Complaint without leave of Court, but was
instructed to first move for leave to file. Denial of Filing, ECF No. 6. Kumar subsequently moved
for leave to file his Second Amended Complaint, see Mot. for Leave to File, ECF No. 15, which
was denied due to his failure at that time to properly serve the Attorney General pursuant to Rule
4 of the Federal Rules of Civil Procedure. See Order of Feb. 28, 2024, ECF No. 16. Nevertheless,
because the Court may look beyond the pleadings to resolve a Rule 12(b)(1) motion to dismiss,
Am Freedom L. Ctr., 821 F.3d at 49, the Court will consider whether the Second Amended
Complaint would have cured the deficiencies of Kumar’s pleadings.
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Needless to say, the Court does not agree with. Kumar’s naked assertion that Newby is a fraudulent case filed “on
behalf of alleged criminals in anticipation of this case only . . . to create a protective cover for themselves.” Pl.’s
Opp’n at 17.
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To the contrary, the contents of the Second Amended Complaint only render Kumar’s tale
even more fanciful. It presents an alternative reality in which Kumar, rather than the innocent
victim of Kafkaesque government machinations, is recast as an international business titan and
political kingmaker. He vacillates between inserting himself, Forrest Gump-like, as the main
protagonist in various historical moments on the one hand, and fabricating events entirely on the
other. For example, he claims that he personally orchestrated Mike Huckabee’s victory in the
2008 Iowa Republican caucuses, Mitt Romney’s victory in the 2008 Michigan Republican
primary, and Hillary Clinton’s victory in the 2008 New Hampshire Democratic primary. 2d Am.
Compl. 4, Mot. for Leave to File Attach. 1, ECF No. 15-1. He claims that he engineered the
financial system bailout and stimulus programs enacted in response to the 2007–08 financial crisis,
that he briefly served as the owner or CEO of Berkshire Hathaway, Change Healthcare, and Pepsi,
and that he personally fired Warren Buffett and Bill Gates after taking over their respective firms.
See id. at 6–14. He claims that he “personally built” the BJP, India’s ruling political party, and
that he handpicked Prime Minister Narendra Modi to lead it. Id. at 8. And, in stark contrast to
these rather grandiose allegations, he expresses his particular dismay that President George W.
Bush has allegedly been calling and emailing him multiple times a day to sell him burial insurance
from the Globe Life Insurance Company. Id. at 8, 21.2
Suffice it to say, Kumar’s allegations run the gamut from the bizarre to the outright farcical.
Such obviously fictitious claims cannot satisfy the plaintiff’s burden to establish subject-matter
jurisdiction. Accordingly, the case must be dismissed, and the Court shall not—indeed, may not—
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Not only is the Second Amended Complaint utterly fantastical; it also seemingly contradicts Kumar’s other
pleadings. For example, Kumar’s original Complaint states that he never met either former President behind the
alleged plot, Compl. Attach. 2 at 2, ECF No. 1-2, whereas the Second Amended Complaint claims that President
Obama came to Ireland to “woo” him in the lead-up to the 2008 general election. 2d Am. Compl. at 4.
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consider whether Kumar’s claims would also warrant dismissal under Rule 12(b)(6) for failure to
state a claim that “is plausible on its face.” Twombly, 550 U.S. at 570.3
IV. Conclusion
Therefore, upon consideration of the defendant’s Motion to Dismiss, the response and reply
thereto, and the entire record herein, and for the reasons contained in this Memorandum Order, it
is hereby
ORDERED that the Motion [28] to Dismiss is GRANTED; and it is further
ORDERED that the plaintiff’s Motion [19] to Confirm Service of Process and Motion [35]
for Leave to File a Surreply are DENIED AS MOOT; and it is further
ORDERED that this case be DISMISSED and TERMINATED on the dockets of this
Court.
Date: October _____, 2022 __________________________
Royce C. Lamberth
United States District Judge
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Kumar has attempted to litigate similar claims before. In 2019, then-Chief Judge John M. Gerrard of the U.S. District
Court for the District of Nebraska dismissed a complaint filed by Kumar against former Acting Attorney General
Matthew Whitaker, alleging a similar pattern of illicit surveillance by “W and Hussein.” See Kumar v. Whittaker, No.
8:18-cv-578, 2019 WL 13223866, at *1 (D. Neb. May 28, 2019), aff’d sub nom Kumar v. Barr, 788 Fed. App’x 416
(8th Cir. 2019). That court held that Kumar had failed to state a facially plausible claim, as he had provided “no basis
to believe that two former presidents, and several former high-ranking members of the Justice Department, have taken
an interest in what the plaintiff is doing at all times—nor any basis to believe that all those former federal officials
retain any authority over the FBI.” Id. at *2 (emphasis in original). Because the Court is without subject-matter
jurisdiction to entertain the present dispute, it may not consider whether and to what extent this earlier decision may
have preclusive effects if the instant case were to survive the defendant’s Rule 12(b)(1) challenge, which is a non-
jurisdictional inquiry. See Johnson v. Interstate Mgmt. Co., LLC, 849 F.3d 1093, 1098 n.1 (D.C. Cir. 2017)
(Kavanaugh, J.) (“Res judicata is a non-jurisdictional affirmative defense.”) (citing Stanton v. Dist. of Columbia Ct.
of Appeals, 127 F.3d 72, 76–77 (D.C. Cir. 1997)); Smalls v. United States, 471 F.3d 186, 189 (D.C. Cir. 2006) ([T]he
defense of res judicata, or claim preclusion, while having a ‘somewhat jurisdictional character,’ does not affect the
subject matter jurisdiction of the district court.”) (internal quotations omitted).
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