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Shue v. Optimer Pharmaceuticals, Inc.

United States District Court, S.D. California

February 26, 2018

YOUE-KONG SHUE, Plaintiff,
v.
OPTIMER PHARMACEUTICALS, INC., a Delaware Corporation, et. al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL DISMISSAL OF SECOND AMENDED COMPLAINT

          ROGER T. BENITEZ, United States District Judge

         This 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.

         BACKGROUND

         Plaintiffs 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.

         PROCEDURAL HISTORY

         On June 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.)

         On 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.

         DISCUSSION

         "[A] 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).

         When 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. at 664.

         A. Breach of Contract Claims

         To 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)).

         Once again, the Court finds Plaintiff has failed to state a claim for each of his breach of contract claims.

         1. Breach of ...


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