trafficking. See id. The plaintiffs believe that as a result,
the CIA or people affiliated with the CIA poisoned Mr. Carone,
leading to his death in 1990.
After Mr. Carone's death, Ms. Carone-Ferdinand was named
executrix of Mr. Carone's estate. See Compl. at 2. The
plaintiffs claim that they transmitted several life insurance
policies, proof of joint ownership of several bank accounts,
proceeds from the sale of a coin collection, and access to
several storage units containing Mr. Carone's personal property
to defendant Robert Fuentes, an attorney operating out of Rio
Rancho, New Mexico. See Compl. at 14. According to the
plaintiffs, shortly after they transferred the property to Mr.
Fuentes, defendant James Robert Strauss, on orders from the CIA,
approached defendant Fuentes, who then surrendered Mr. Carone's
estate in exchange for a monetary reward. See id.
The plaintiffs claim that in 1996 they located a William M.
Tyree, who verified much of Mr. Carone's story. See Ferdinand
Supp. Aff. at 2. Additionally, after further inquiry, the
plaintiffs allege that they were able to determine that the
named defendants stole Mr. Carone's estate to cover up his role
in the Iran-Contra affair and other classified operations. See
Compl. at 16.
On February 29, 2000, the plaintiffs filed a six-count
complaint alleging, inter alia, larceny, conversion of Mr.
Carone's estate, and constitutional violations. The complaint
also stated a claim of negligence against defendant Fuentes.
The defendants attack the complaint on a wide array of
substantive and procedural grounds. The defendants move to
dismiss the complaint under Federal Rule of Civil Procedure
12(b)(1) for lack of subject-matter jurisdiction, under
Rule 12(b)(6) for failure to state a claim upon which relief can be
granted, under Rule 9(b) for failing to aver fraud with
particularity, and under Rule 8(a) for failure to contain a
short and plain statement of jurisdiction. In addition, the
federal defendants argue that the plaintiffs' tort claims are
barred by various provisions of the Federal Tort Claims Act,
sovereign immunity, failure to exhaust administrative remedies,
and applicable statutes of limitations. All defendants seek, in
the alternative, a transfer to the United States District Court
for the District of New Mexico.
For the reasons that follow, the court will grant the
defendants' motion to dismiss for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1).
A. Legal Standard
It is well-settled law that "the federal courts are without
power to entertain claims otherwise within their jurisdiction if
they are `so attenuated and unsubstantial [sic] as to be
absolutely devoid of merit.'" Hagans v. Lavine, 415 U.S. 528,
536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (quoting
Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24
S.Ct. 553, 48 L.Ed. 795 (1904)). This Circuit has stated that
dismissal under 12(b)(1) is appropriate "when the complaint is
`patently insubstantial' presenting no federal question suitable
for decision." Best v. Kelly, 39 F.3d 328, 330 (D.C.Cir. 1994)
(quoting Neitzke v. Williams, 490 U.S. 319, 327 n. 6, 109
S.Ct. 1827, 104 L.Ed.2d 338 (1989)); accord O'Brien v. United
States Dep't of Justice, 927 F. Supp. 382, 384 (Ariz. 1995);
Shoemaker v. United States, 1997 WL 96543, *5 (S.D.N.Y. 1997);
O'Connor v. United States, 159 F.R.D. 22, 25 (Md. 1994). The
D.C. Circuit explained that for claims to be considered patently
insubstantial, they cannot merely be doubtful or questionable,
but rather they have to be "essentially fictitious." See Best,
39 F.3d at 330. Examples of essentially fictitious claims are
"bizarre conspiracy theories," "fantastic government
manipulations of [one's] will or mind," and "any sort of
supernatural intervention." See id.
B. The Court Will Dismiss the Complaint Pursuant to Rule
Under the factors laid out by the Supreme Court and the D.C.
Circuit, the complaint cannot survive the defendants' motion to
dismiss under Rule 12(b)(1). Consequently, the court need not
address the alternate defenses raised by the defendants. To
support the allegations in their complaint, the plaintiffs have
presented affidavits from Mr. Albert Carone, Mr. William Tyree,
Mrs. Desiree Carone-Ferdinand, Mr. Thomas Ferdinand, Mr. William
Casey, and a book excerpt that appears to be based largely upon
declarations similar to those in Mrs. Carone-Ferdinand's
When facts that form the basis of subject-matter jurisdiction
are in controversy, a district court has authority to weigh the
conflicting evidence to determine if subject-matter jurisdiction
exists. See Ohio Nat'l Life Ins. Co. v. United States,
922 F.2d 320, 325 (6th Cir. 1990); accord Williamson v. Tucker,
645 F.2d 404, 412-13 (5th Cir. 1981); Mortensen v. First Fed.
Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). After
examining the plaintiffs' evidence in this case, the court finds
that the plaintiffs' claims are "essentially fictitious." Thus,
the court lacks subject-matter jurisdiction over the
On its face, the complaint appears to be the very type of
"bizarre conspiracy theory" that the D.C. Circuit has said
warrants dismissal under Rule 12(b)(1). For example, the
declaration of former Director of Central Intelligence William
Casey is so obviously false as to cast doubt on the plaintiffs'
entire case. As the federal defendants aptly stated:
Plaintiffs' submission of an alleged declaration of
now-deceased CIA Director William Casey — supposedly
witnessed by a former President — only further
verifies the fictitiousness of plaintiffs' claims.
This document's frequent misspellings, absence of
grammar, bizarre free-association, and flippant
admission of criminal activity by high-ranking
government officials, including Mr. Casey himself,
establishes its own falsity and the patent absurdity
of plaintiffs' claims.
Federal Defendants' Motion to Dismiss or in the Alternative for
Transfer ("Fed. Defs.' Mot.") at 10-11 (emphasis in the