United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL
DISMISSAL OF SECOND AMENDED COMPLAINT
T. BENITEZ, United States District Judge
action arises out of the alleged wrongful termination of
Plaintiff Yong-Kong Shue by Defendant Optimer
Pharmaceuticals, Inc. ("Optimer Inc."). Before the
Court is the motion for partial dismissal of Plaintiff s
Second Amended Complaint filed by Defendants Cubist
Pharmaceuticals, LLC and Optimer Pharmaceuticals, LLC. The
motion fully briefed. For the reasons that follow,
Defendants' motion is GRANTED.
Second Amended Complaint ("SAC") contains largely
the same factual allegations as the First Amended Complaint,
which the Court summarized in detail in its August 1,
2017 Order and now incorporates by reference.
(See Docket No. 14 at pp. 2-5.) New allegations will
be discussed where relevant to the Court's analysis of
Defendants' motion to dismiss.
29, 2015, Plaintiff filed his initial Complaint in the
Superior Court of California for the County of San Diego
asserting thirteen state law claims under theories be breach
of contract negligent misrepresentation, discrimination, and
Whistleblower relaliation (Docket. No. 1-3, Ex. A.) On
October 14, 2016, Defendants removed the action to this
Court. (Docket No.1.) After Defendants filed a motion for
partial dismissal of his initial Complaint (Docket No. 5),
Plaintiff exercised his right pursuant to Federal Rule of
Civil Procedure 15(a)(1) and filed a First Amended Complaint
on November 11, 2016, asserting seventeen claims for relief
under generally the same theories of liability. (Docket No.
7.) On August 1, 2017, this Court granted Defendants'
motion for partial dismissal of Plaintiff s claims for breach
of employment contract, promissory fraud, negligent
misrepresentation, and whistleblower retaliation, and granted
Plaintiff leave to amend these claims. (Docket No. 14.)
August 7, 2017, Plaintiff filed the operative Second Amended
Complaint. (Docket No. 15.) The SAC asserts eleven claims for
relief, under theories of breach of contract, discrimination,
and whistleblower retaliation. Defendants now move pursuant
to Federal Rule of Civil Procedure 12(b)(6) to dismiss
Plaintiffs amended breach of contract (Claims 1-3) and
whistleblower retaliation (Claim 8) claims.
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 556 U.S. 662, 677-78
(2009). "A claim is facially plausible 'when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Zixiang Li v.
Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting
Iqbal, 556 U.S. at 678).
considering a Rule 12(b)(6) motion, the court must
"accept as true facts alleged and draw inferences from
them in the light most favorable to the plaintiff."
Stacy v. Rederite Otto Danielsen, 609 F.3d 1033,
1035 (9th Cir. 2010) (citing Barker v. Riverside Cnty.
Office of Educ, 584 F.3d 821, 824 (9th Cir. 2009)). On
the other hand, bare, conclusory allegations, including legal
allegations couched as factual, are not entitled to be
assumed to be true. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). "[T]he tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions."
Iqbal, 556 U.S. at 678. "While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations." Id.
Breach of Contract Claims
state a breach of contract claim, a plaintiff must plausibly
allege facts to establish the following four elements:
"(1) existence of a contract; (2) plaintiffs performance
or excuse for nonperformance; (3) defendant's breach; and
(4) damages as a result of the breach." Miles v.
Deutsche Bank Nat'l Tr. Co., 236 Cal.App.4th 394,
402 (2015) (quoting CDF Firefighters v. Maldonado,
158 Cal.App.4th 1226, 1239 (2008)).
again, the Court finds Plaintiff has failed to state a claim
for each of his breach of contract claims.
Breach of ...