The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [DOC. # 13]
Now pending before the Court is the motion of defendants Nexsan Technologies, Limited and Nexsan Technologies Incorporated (collectively "defendants" or "Nexsan") to dismiss the second cause of action contained in the first amended complaint filed by plaintiff Menashe Nuriel ("plaintiff") for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion has been fully briefed by the parties. After a careful consideration of the pleadings and relevant exhibits submitted, and for the reasons set forth below, this Court GRANTS defendants' motion and DISMISSES plaintiff's second cause of action without prejudice.
Plaintiff, a resident of Jerusalem, Israel, alleges that he entered into a written employment contract with Nexsan on December 28, 2000, after which he and his family moved from Israel to California in order to work for Nexsan. Plaintiff further alleges that approximately one year after he entered into the employment contract, Nexsan informed plaintiff that it could no longer comply with the terms of the original contract. The parties then memorialized an amendment to the agreement, awarding plaintiff a commission related to company sales in lieu of promised bonuses and salary increases. Plaintiff alleges that Nexsan unilaterally altered the terms of the agreements by failing to pay promised bonuses and compensation, and allegedly continued to breach the terms of the contract from 2002 until plaintiff left employment with defendant on or about August 12, 2006. As a result of the alleged breach of his employment contract, plaintiff seeks monetary damages.
Plaintiff's original complaint was filed on August 21, 2006, alleging three causes of action: (1) breach of contract; (2) RICO violations; and (3) violations of California Labor Code § 940, et seq. See Doc. # 1. On November 1, 2006, Nexsan filed a motion to dismiss plaintiff's second and third causes of action. See Doc. # 4. The parties then jointly agreed to dismiss the second cause of action, see Docs. # 5, 6, and this Court granted Nexsan's motion to dismiss the third cause of action on June 8, 2007, allowing plaintiff the opportunity to file a first amended complaint. Plaintiff's first amended complaint was filed on June 29, 2007, alleging only the breach of contract and California Labor Code causes of action. See Doc. # 11.
The instant motion was filed on July 27, 2007. Plaintiff filed an opposition to the motion on September 10, 2007 and defendant filed a reply brief on September 17, 2007. This Court subsequently took the motion under submission without oral argument. See CivLR 7.1(d.1).
Defendants move to dismiss plaintiff's second cause action for violation of California Labor Code § 970, et seq., on the grounds that it fails to meet the requirement of Rule 9(b) of the Federal Rules of Civil Procedure and, therefore, fails to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under this Rule is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d at 732. Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326-27 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive ...