Tam v. Qualcomm, Inc., Case No.: 17–CV–710 JLS (AGS)

300 F.Supp.3d 1130

Kam T. TAM, Plaintiff,

v.QUALCOMM, INC., an entity; and Does 1–40, inclusive, Defendants.

Case No.: 17–CV–710 JLS (AGS)

United States District Court, S.D. California.

Signed January 16, 2018

Dennis M. Grady, Grady and Associates, San Diego, CA, for Plaintiff.

Michael Cody Sullivan, Evan Pena, Paul Plevin Sullivan & Connaughton LLP, San Diego, CA, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

(ECF No. 5)

Hon. Janis L. Sammartino, United States District Judge

Presently before the Court is Defendant Qualcomm Inc.'s Motion to Dismiss Plaintiff's Complaint, ("MTD," ECF No. 5–1). Also before the Court are Plaintiff Kam T. Tam's Response in Opposition to, ("Opp'n," ECF No. 6), and Defendant's Reply in Support of, ("Reply," ECF No. 7), Defendant's MTD. The Court vacated the hearing on the motion and took the matter under submission pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 8.) After considering the parties' arguments and the law, the Court GRANTS Defendant's MTD.

BACKGROUND

This case arises from a dispute between Plaintiff Kam Tam and his employer Qualcomm. Tam worked as a patent attorney for Qualcomm starting in 2004 and was promoted to Senior Patent Counsel in 2008. ("Compl." ¶ 5, ECF No. 1–2.) As a Senior Counsel, Tam was responsible for prosecuting Qualcomm's patents at the U.S. Patent Office. (Id. ) Plaintiff states that he received positive ratings in his feedback from his supervisors and his legal knowledge was well-recognized in his department. (Id. ) Plaintiff states that licensing patents was a significant area of business for Qualcomm, constituting approximately three quarters of Qualcomm's profits. (Id. )

In 2008, Qualcomm hired a new Chief Patent Counsel, Katherine Umpleby, and as part of the department's reorganization, an attorney senior to Plaintiff, Mr. Peng Zhu, specifically requested that Plaintiff be assigned to his team. (Id. ¶ 6.) Plaintiff initially resisted this request because Plaintiff believed Mr. Zhu's group "merely crank[ed] out patents, without regard to quality." (Id. ¶ 7.) Plaintiff believed that Mr. Zhu's practice was harmful to the long-term success of the company. In September 2010, Plaintiff alleges that he shared this belief with the Chief Patent Counsel and Mr. Zhu's supervisor, but they declined Plaintiff's suggestions to improve work quality. (Id. ¶ 8.) In October 2010, Plaintiff utilized an "Open Door Policy" run by the Human Resources Department to report the same concerns previously expressed to the Chief Patent Counsel and Mr. Zhu's supervisor. (Id. ¶ 9.)

Plaintiff then alleges that in response to his use of the Open Door Policy the Patent Department was reorganized again and Plaintiff began reporting to Mr. Larry Moskowitz. (Id. ¶ 10.) Soon after this second reorganization, conflicts arose between Plaintiff and Mr. Moskowitz leading the latter to issue Plaintiff a written "Expectation Memo" for "performance improvement." (Id. ¶ 11.) This memo included warnings to Plaintiff of further discipline and possible termination—warnings that Plaintiff had not previously received. Plaintiff asked to be reassigned to a different supervisor, which was granted, and no problems were reported concerning Plaintiff for approximately one year. (Id. ¶ 12.) In December 2012, the Chief Patent Counsel, Ms. Umpleby, announced that she was leaving Qualcomm and reassigned Plaintiff back to Mr. Moskowitz. (Id. ¶ 13.) Plaintiff protested this arrangement and Human Resources told him that he would likely be transferred to a different supervisor once a new chief counsel was in place. (Id. )

Sometime around June 2013, Plaintiff requested transfer and reiterated to the new Chief Patent Counsel, Tim Loomis, his previous reasons why he was requesting transfer, namely the perceived lack of quality in Qualcomm's patents. (Id. ¶ 14.) The new Chief Patent Counsel denied the request and Human Resources denied a similar request to transfer. (Id. ¶ 15.) In October 2013, Mr. Moskowitz presented Plaintiff with a negative review and Human Resources offered Plaintiff a separation package, which Plaintiff did not accept. (Id. ) In January 2014, Plaintiff was informed that he was being placed on a "Performance Improvement Plan" ("PIP") and again offered a separation package, which he did not accept. (Id. ¶ 16.) The terms of the PIP included goals for Plaintiff including "improve the quality of the work product" and "take accountability for his performance." (Id. ) Plaintiff states that the PIP did not give him any explanation on how to achieve the plan or metrics to evaluation the plan. (Id. )

The PIP required Plaintiff to attend weekly meetings and take online training, which Plaintiff characterizes as harassing and retributive. (Id. ¶ 18.) Plaintiff alleges that Mr. Moskowitz blamed him for others' errors and held him to standards no one else was held to. In February 2014, Plaintiff took "FMLA leave" and was placed on anxiety and depression medication, which he states was a result of his work issues. (Id. ¶ 20.) Plaintiff returned to work in May 2014 and was told by Mr. Moskowitz that the terms of the PIP remained in effect. (Id. ) Plaintiff alleges that Mr. Moskowitz transferred all Plaintiff's cases to other attorneys during the FMLA leave and thus he was unable to meet the PIP requirements. (Id. ) Plaintiff went to Human Resources to complain and was urged to take a severance package, which he declined. (Id. ¶ 21.)

Mr. Moskowitz gave Plaintiff three tasks to complete including preparing a presentation, assisting another attorney in holding a meeting, and take over filing a patent application. (Id. ¶ 22.) Plaintiff alleges that he attempted to comply with the tasks, but Mr. Moskowitz was not satisfied with his performance. Specifically, Plaintiff states he had filed the patent he was assigned and had scheduled but not given his presentation. (Id. ¶ 25.) The attorney with whom Plaintiff was to hold a meeting did not respond. (Id. ¶ 23.) Plaintiff was terminated on May 23, 2014. (Id. )

Plaintiff originally filed this action in San Diego Superior Court on June 13, 2016, alleging various causes of action under state and federal law. (See Compl. ¶ 28.) Defendant removed the action on April 7, 2017 to this Court on the basis of federal question jurisdiction, (ECF No. 1).

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8"does not require ‘detailed factual allegations,’ ... it [does] demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In other words, "a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ). A complaint will not suffice "if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Iqbal , 556 U.S. at 677, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).

In order to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 677, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts " ‘merely consistent with’ a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 678, 129 S.Ct. 1937 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ " Id.

Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to amend unless it determines that no modified contention "consistent with the challenged pleading ... [will] cure the deficiency." DeSoto v. Yellow Freight Sys., Inc. , 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv–Well Furniture Co. , 806 F.2d 1393, 1401 (9th Cir. 1986) ).

ANALYSIS

The Court first reviews whether it has jurisdiction over this removal action. Second, the Court examines the merits of Plaintiff's various claims.

I. Subject Matter Jurisdiction

In cases "brought in a State court of which the district courts of the United States have original jurisdiction," defendants may remove the action to federal court. 28 U.S.C. § 1441(a). Section 1441 provides two bases for removal: diversity jurisdiction and federal question jurisdiction. Federal courts have diversity jurisdiction "where the amount in controversy" exceeds $75,000, and the parties are of "diverse" state citizenship. § 1332. Federal courts have federal...