United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
and counterclaimant, Dr. Zhixiang Hu, Ph.D., is proceeding in
this action pro se. Accordingly, this action has been
referred to the undersigned pursuant to Local Rule 302(c)(21)
and 28 U.S.C. § 636(b)(1). (ECF No. 216.) Pending before
the court are defendant's motion to file an amended
counterclaim, defendant's motion to dismiss the third
amended complaint, and plaintiff's motion to reopen
discovery. (ECF Nos. 180, 197, 210.)
reasons explained below, defendant's motion for leave to
amend and plaintiff's motion to reopen discovery are
granted. The undersigned will also recommend that
defendant's motion to dismiss be denied.
CSPC Dophen Corporation (“CSPC Dophen”) commenced
this action on September 11, 2017. (ECF No. 1.) On February
26, 2019, plaintiff was granted leave to file a third amended
complaint. (ECF No. 171.) On March 15, 2019, the assigned
District Judge signed the parties' stipulation continuing
the time for plaintiff to file a third amended complaint.
(ECF No. 175.) On April 11, 2019, defendant filed a motion to
file an amended counterclaim. (ECF No. 180.) Plaintiff filed
an opposition to defendant's motion to amend on May 2,
2019. (ECF No. 186.) Defendant filed a reply on May 9, 2019.
(ECF No. 191.)
filed a third amended complaint on May 7, 2019. (ECF No.
190.) Therein, plaintiff alleges that CSPC Dophen is a
pharmaceutical and development company based in Sacramento,
California. (Third Am. Compl. (ECF No. 190) at
Plaintiff hired defendant in October of 2011, as Director of
CSPC Dophen's Research Laboratory. (Id. at 3.)
Defendant signed a Non-Disclosure Agreement and a Policy of
Conflict of Interest as part of that employment.
(Id. at 3-4.)
on April 24, 2014, defendant incorporated a competing entity
named Dophen Biomed, Inc., with the same address as CSPC
Dophen. (Id. at 4.) Defendant also established a
bank account and deposited plaintiff's money into that
account. (Id. at 5.) And in April of 2017, defendant
filed an Investigational New Drug application with the Food
and Drug Administration (“FDA”) using
plaintiff's name without plaintiff's consent.
(Id.) Plaintiff terminated defendant's
employment on July 21, 2017. (Id. at 6.)
on these allegations the third amended complaint asserts
causes of action for breach of contract, breach of the duty
of loyalty, violation of the Defend Trade Secrets Act, 18
U.S.C. § 1832(a)(1), violation of the Lanham Act, 15
U.S.C. § 1125(a), conversion, violation of the
California Comprehensive Computer Data Access and Fraud Act,
California Penal Code § 502, unfair competition, and
defamation. (Id. at 7-16.)
filed a motion to dismiss pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure on May 23, 2019. (ECF No.
197.) Plaintiff filed an opposition to defendant's motion
to dismiss on June 13, 2019. (ECF No. 209.) That same day,
plaintiff filed a motion to reopen discovery. (ECF No. 210.)
Legal Standards Applicable to Motions to Dismiss Pursuant
to Rule 12(b)(1)
Rule of Civil Procedure 12(b)(1) allows a defendant to raise
the defense, by motion, that the court lacks jurisdiction
over the subject matter of an entire action or of specific
claims alleged in the action. “A motion to dismiss for
lack of subject matter jurisdiction may either attack the
allegations of the complaint or may be made as a
‘speaking motion' attacking the existence of
subject matter jurisdiction in fact.” Thornhill
Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d
730, 733 (9th Cir. 1979).
party brings a facial attack to subject matter jurisdiction,
that party contends that the allegations of jurisdiction
contained in the complaint are insufficient on their face to
demonstrate the existence of jurisdiction. Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
In a Rule 12(b)(1) motion of this type, the plaintiff is
entitled to safeguards similar to those applicable when a
Rule 12(b)(6) motion is made. See Sea Vessel Inc. v.
Reyes, 23 F.3d 345, 347 (11th Cir. 1994); Osborn v.
United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990).
The factual allegations of the complaint are presumed to be
true, and the motion is granted only if the plaintiff fails
to allege an element necessary for subject matter
jurisdiction. Savage v. Glendale Union High Sch. Dist.
No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003);
Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir.
2001). Nonetheless, district courts “may review
evidence beyond the complaint without converting the motion
to dismiss into a motion for summary judgment” when
resolving a facial attack. Safe Air for Everyone,
373 F.3d at 1039.
Rule 12(b)(1) motion attacks the existence of subject matter
jurisdiction, no presumption of truthfulness attaches to the
plaintiff's allegations. Thornhill Publ'g
Co., 594 F.2d at 733. “[T]he district court is not
restricted to the face of the pleadings, but may review any
evidence, such as affidavits and testimony, to resolve
factual disputes concerning the existence of
jurisdiction.” McCarthy v. United States, 850
F.2d 558, 560 (9th Cir. 1988). When a Rule 12(b)(1) motion
attacks the existence of subject matter jurisdiction in fact,
plaintiff has the burden of establishing that such
jurisdiction does in fact exist. Thornhill Publ'g
Co., 594 F.2d at 733.
Defendant's Motion to Dismiss
of defendant's motion to dismiss is somewhat hindered by
the motion's frequent errors and misstatements. For
example, the motion provides the wrong case number and
misstates the assigned District Judge's name. (Def.'s
MTD (ECF No. 197) at 1.) The motion asks that the court
“deny Plaintiffs' Motion to Amend[.]”
(Id. at 8.) Plaintiff, however, has already been
granted leave to file the third amended complaint and
defendant is instead seeking dismissal of the third amended
complaint. (Id. at 1.)
motion also states that it is brought pursuant to Rule
12(b)(1) “for lack of subject matter jurisdiction,
” but argues that the third amended complaint should be
dismissed for failure to state a claim upon which relief can
be granted. (Id. at 1-2.) Rule 12(b)(6) governs
motions to dismiss for failure to state a claim. Moreover,
defendant's argument is not that the third amended
complaint fails to state any claim for relief. Instead,
defendant's motion asserts the following arguments-each
of which attacks only the third amended complaint's
argues that plaintiff's defamation claim is barred
because defendant's speech “is protected by the
Knorr-Pennington Doctrine (sic).” (Def.'s
MTD (ECF No. 197) at 3.) “Under the
Noerr-Pennington doctrine, those who petition any
department of the government for redress are generally immune
from statutory liability for their petitioning
conduct.” Sosa v. DIRECTV, Inc., 437 F.3d 923,
929 (9th Cir. 2006) (citing Empress LLC v. City &
County of S.F., 419 F.3d 1052, 1056 (9th Cir. 2005)).
“[T]he right to petition extends to all departments of
the Government. The right of access to the courts is indeed
but one aspect of the right of petition.”
California Motor Transport Co. v. Trucking
Unlimited, 404 U.S. 508, 510 (1972).
Supreme Court developed a
. . . three-part test to determine whether the
defendant's conduct is immunized: (1) identify whether
the lawsuit imposes a burden on petitioning rights, (2)
decide whether the alleged activities constitute protected
petitioning activity, and (3) analyze whether the statutes at
issue may be ...