Li v. Genentech Inc et al

Motion to Dismiss for Failure to State a Claim

N.D. Tex.April 12, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS XIUMIN LI, Plaintiff § § § § § § § § § § v. GENENTECH INC.; FIDELITY INC.; JOHN DOE; U.S. AMERICA, Defendants. NO. 3:17-CV-00712-B DEFENDANT GENENTECH INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT Genentech Inc. moves to dismiss with prejudice pro se Plaintiff Xiumin Li’s time-barred and improperly vague claims for negligence, intentional infliction of emotional distress, defamation, and fraud. The vague allegations in Plaintiff’s Complaint do not come close to meeting the standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009), or, with respect to the fourth cause of action for fraud, the pleading mandates of Federal Rule of Civil Procedure 9(b). In addition, as shown in the motion to transfer that Genentech filed with co-defendant Fidelity Workplace Services LLC (“Fidelity”), 1 Plaintiff’s claims are wrongly filed in this Court, and, to the extent they survive dismissal, should be transferred to the proper venue in the Northern District of California where Plaintiff was employed. I. FACTUAL BACKGROUND According to her Complaint, Plaintiff was hired as a Research Associate in the 1 Plaintiff improperly named “Fidelity, Inc.” as a defendant in this lawsuit. Fidelity Inc. is not a duly organized business entity. The proper party to this action is Fidelity Workplace Services LLC as it provides certain services to the employee benefit plan(s) referred to in this matter. Thus, this and all future filings in this matter shall reflect Fidelity Workplace Services LLC (“Fidelity”) as the proper party to this action. Fidelity filed its Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b) based upon similar grounds on April 6, 2017. Case 3:17-cv-00712-B Document 15 Filed 04/12/17 Page 1 of 9 PageID 81 -2- department of Biomedical Imaging at Genentech in December 2011. Complaint, ¶ 2. Plaintiff claims that she became ill and, between July 2013 and September 2013, visited several doctors and saw a psychiatrist “for stress.” Complaint, ¶ 5-6. Plaintiff alleges that she also filed “several complaints” with OSHA. Complaint, ¶ 7. Plaintiff alleges neither the substance of the complaints to OSHA nor the dates when she filed the complaints. Genentech terminated Plaintiff’s employment on September 13, 2013, citing “poor performance and bad working relationship.” Complaint, ¶ 8. Plaintiff asserts that her employment was terminated in retaliation for reporting OSHA complaints. Complaint, ¶ 9. According to Plaintiff, during her employment at Genentech, Defendant Fidelity managed retirement accounts for Genentech employees. Complaint, ¶ 20. Plaintiff asserts that she learned from “old friends” at Genentech that Genentech “settled a big sum of fund [sic] for Plaintiff through [a] third party” by using a “fake” signature from Plaintiff. Complaint, ¶ 18. According to Plaintiff, on November 30, 2017, 2 Plaintiff discovered an “unrecognized liquidated account” related to Genentech under Plaintiff’s name. Complaint, ¶ 20. Plaintiff claims that on March 1, 2017, Plaintiff “obtained partial misleading and confusing statements on those accounts” from Fidelity. Complaint, ¶ 20. Plaintiff’s Complaint further alleges that beginning in 2014, Plaintiff’s freedom of communication was disabled (e.g., by “weird phone calls,” “emails manipulated,” “Internet being blocked”). Complaint, ¶ 15. Plaintiff claims that she has reported her claims to federal agents on at least four occasions at the U.S. Consulate in Shenyang, China, the FBI Headquarters in Dallas, Texas, and twice to agents at former President George W. Bush’s residence in Dallas, Texas (where Plaintiff admits she became a suspect of “assassination and insanity”). Complaint, 2 Plaintiff asserts in her Complaint that this took place on November 30, 2017. Genentech assumes for purposes of this motion that Plaintiff intended to allege this took place on November 30, 2016. Case 3:17-cv-00712-B Document 15 Filed 04/12/17 Page 2 of 9 PageID 82 -3- ¶¶ 23-25. Plaintiff alleges claims for negligence, intentional infliction of emotional distress, defamation, and fraud against Genentech. Complaint at 4-5. Although not abundantly clear precisely how much Plaintiff seeks in her complaint, she appears to request $985.5 million in actual damages and $1.8 billion in punitive damages. Id. at 4-13. Plaintiff appears to seek $160 million in general damages, $166 million in special damages, and $490 million in punitive damages against Genentech alone. Id. at 4-5. II. ARGUMENT To survive a motion to dismiss under Rule 12(b)(6), Plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009); Gulf Coast Hotel–Motel Ass’n v. Miss. Gulf Coast Golf Course Ass’n, 658 F.3d 500, 504 (5th Cir. 2011); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (“the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief”). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement 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. Under Federal Rule of Civil Procedure 9(b), a party alleging fraud must “state with particularity the circumstances constituting fraud or mistake.” A claim may be dismissed on limitations grounds under Ruler 12(b)(6) “where it is evident from the plaintiff’s pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003). Because the court’s jurisdiction in this case appears to be based upon diversity of citizenship, the forum state’s choice of law rules apply. Wooley v. Clifford Chance Rogers & Wells, L.L.P., No. 3:01- Case 3:17-cv-00712-B Document 15 Filed 04/12/17 Page 3 of 9 PageID 83 -4- cv-2185-D, 2004 WL 57215, at *3 (N.D. Tex. Jan. 5, 2004). In Texas, limitations is considered to be a procedural matter, where the forum state’s procedural rules—here, Texas—would apply. Id. As previously noted in Genentech and Fidelity’s Motion to Transfer Venue, because the purported acts giving rise to Plaintiff’s claims against Genentech all occurred in California, that state has “the most significant relationship” to this dispute and California substantive law will provide the necessary elements Plaintiff must plead and ultimately prove in order to succeed on each of her claimed causes of action. See Motion to Transfer Venue at 8; Wooley v. Clifford Chance Rogers & Wells, L.L.P., 2004 WL 57215, at *5; Berry v. Bryan Cave LLP, No. 3:08-cv- 2035-B, 2010 WL 1904885, at *4 (N.D. Tex. May 11, 2010). However, as demonstrated below, no matter which state’s procedural or substantive law the Court ultimately chooses to apply, each of Plaintiff’s claims fail as a matter of law and must be dismissed. A. Plaintiff’s Claim for Negligence is Untimely and Preempted Plaintiff’s negligence claim appears to be premised on her contention that Genentech “failed to provide [a] safe and healthy work environment, made Plaintiff posed [sic] to the risk of injury.” Complaint, ¶ 9. The statute of limitations for negligence claims under either Texas or California law is two years. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a); see also Cal. Civ. Proc. Code § 335.1. The limitations period for a negligence claim begins to run on the date the injury occurs. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998); see also Mills v. Forestex Co., 134 Cal. Rptr. 2d 273, 291-92 (Cal. Ct. App. 2003). Plaintiff did not file her complaint within that period, and her cause of action, therefore, is not timely. Because all of the allegedly negligent conduct by Genentech occurred prior to her termination in September 2013, the two-year statute of limitations has run. This claim is clearly time barred on the face of Plaintiffs’ Complaint and should be dismissed with prejudice. See Drake v. Fitzsimmons, No. 3:12-cv-1436-B, 2013 WL Case 3:17-cv-00712-B Document 15 Filed 04/12/17 Page 4 of 9 PageID 84 -5- 775354, at *2-4 (N.D. Tex. Mar. 1, 2013) (dismissing claims under Rule 12(b)(6) based on limitations). In addition, this claim is barred as a matter of law because workers’ compensation remedies provide the exclusive remedies for such negligence claims alleged against an employer. See Cal. Lab. Code § 3600, 3602; Fermino v. Fedco, Inc., 7 Cal.4th 701, 713-14 (1994) (injuries caused by employer negligence are compensated exclusively under the workers’ compensation system); Arendell v. Auto Parts Club, 29 Cal. App. 4th 1261, 1264 (Cal Ct. App. 1994) (same); see also Tex. Lab. Code Ann. § 408.001(a); In re Texas Mut. Co., 157 S.W. 75, 78 (2004). Here, where Plaintiff’s negligence claim rests upon allegations that her work caused her injury (Genentech “failed to provide safe and healthy work environment, made Plaintiff posed [sic] to the risk of injury and caused Plaintiff’s injury,” see Complaint, ¶ 9), Plaintiff’s contentions are clearly preempted and cannot proceed as alleged. B. Plaintiff’s Claim for Emotional Distress is Untimely and Implausible Under Twombly The statute of limitations for claims of intentional infliction of emotional distress under either California or Texas law is two years. Tex. Civ. Prac. & Rem. Code § 16.003(a); Zurita v. Lombana, 322 S.W.3d 463, 473 (Tex. App.—Houston [14th Dist] 2010, pet. denied); see also Cal. Civ. Proc. Code § 335.1; Roman v. County of Los Angeles, 85 Cal.4th 316, 323 (2000) (CCP § 335.1 applies to actions for emotional distress). As discussed above, all alleged mistreatment prior to Plaintiff’s September 13, 2013 termination, and the termination itself, are outside the statute of limitations. This claim must therefore be dismissed because it is time barred by the statute of limitations. Moreover, Plaintiff’s claim for intentional infliction of emotional distress fails to meet the basic Twombly and Iqbal mandates. Relying on paragraphs 1 through 20, Plaintiff claims Case 3:17-cv-00712-B Document 15 Filed 04/12/17 Page 5 of 9 PageID 85 -6- only that “the acts alleged established a cause of actions for intentional infliction of mental distress of Defendant #1.” Complaint at 4. But nothing in those vague allegations come close to stating a plausible claim for this tort; certainly nothing suggests that anyone at Genentech (1) acted intentionally or recklessly, (2) engaged in extreme or outrageous conduct, and (3) that such action caused the plaintiff severe emotional distress. Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965, 1001 (Cal. Ct. App. 1993); see also Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). Plaintiff fails to state a claim as a matter of law, and her intentional infliction of emotional distress claim must be dismissed. See Johnson v. Affiliated Computer Servs., Inc., No. 3:10-cv-2333-B, 2011 WL 4011429, at *9 (N.D. Tex. Sept. 9, 2011) (dismissing claim for intentional infliction of emotional distress brought by pro se plaintiff, in part, because claim was based on same conduct as other deficient claims). C. Plaintiff’s Defamation Claim is Untimely and Implausible Under Twombly The statute of limitations for defamation in both California and Texas is one year. Tex. Civ. Prac. & Rem. Code § 16.002(a); Cote v. Rivera, 894 S.W.2d 536, 542 (Tex. App.—Austin 1995, no writ) (barring a defamation cause of action because the lawsuit was filed more than one year after the date the alleged defamatory statements were made); see also Cal. Civ. Proc. Code § 340(3); Schneider v. United Airlines, Inc., 256 Cal. Rptr. 71, 76 (Cal. Ct. App. 1989). The only statement Plaintiff alleges which could possibly form the basis of a defamation claim is her allegation that Genentech terminated her for “the excuses of poor performance and bad working relationship” in September 2013. Complaint, ¶8. Thus, since the statute of limitations for defamation requires that such a claim is brought within one year of the defamatory statement, Plaintiff’s claim is grossly untimely. In addition, Plaintiff fails to allege the basic elements of a defamation claim. Under California law, the plaintiff must prove that defendant (1) published a statement, (2) that was Case 3:17-cv-00712-B Document 15 Filed 04/12/17 Page 6 of 9 PageID 86 -7- false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. Sanders v. Walsh, 219 Cal.App.4th 855, 862 (Cal. Ct. App. 2013); see also WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1988) (providing similar elements under Texas law). Nothing in Plaintiff’s vague allegations comes close to identifying a false statement, let alone stating a plausible claim for this tort. See Shaunfield v. Bank of America, No. 3:12-cv- 3859-B, 2013 WL 1846838, at *4 (N.D. Tex. Apr. 24, 2013) (dismissing defamation claim that failed to identify defamatory statements). D. Plaintiff’s Fraud Claim is Defective Federal Rule of Civil Procedure 9(b) requires a party alleging fraud to “state with particularity the circumstances constituting fraud or mistake.” This requires the plaintiff to “specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.” Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997); Nathenson v. Zonagen, Inc., 267 F.3d 400, 412 (5th Cir. 2001). Plaintiff’s fraud claim, also relying on paragraphs 1 through 20, alleges only that “the acts alleged established a cause of actions [sic] for fraud of Defendant #1.” Complaint at 6-7. But nothing in those paragraphs identifies any fraudulent statements by any speaker or other false representation, and certainly not when they were made, why they were fraudulent, how plaintiff relied on them, and how she was allegedly damaged. This claim too must be dismissed. See Turner v. AmericaHomeKey Inc., No. 3:11-cv-860-D, 2011 WL 3606688, at *5 (N.D. Tex. Aug. 16, 2011) (dismissing fraud claim for failure to plead with particularity under Fed. R. Civ. P. 9(b)). III. CONCLUSION In light of the foregoing, Genentech respectfully requests that the Court grant its Motion Case 3:17-cv-00712-B Document 15 Filed 04/12/17 Page 7 of 9 PageID 87 -8- to Dismiss pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. Genentech further requests that the Court exercise its discretion to dismiss Plaintiff’s claims with prejudice, as any amendment of her pleadings would be fruitless. See Berger v. Beletic, 248 F. Supp. 2d 597, 607 (N.D. Tex. 2003). Respectfully submitted, VINSON & ELKINS LLP /s/ Cortney C. Thomas Cortney C. Thomas Texas State Bar. No. 24075153 2001 Ross Avenue, Suite 3700 Dallas, TX 75201-2976 Telephone: 214.220.7815 Facsimile: 214.999.7815 cthomas@velaw.com OF COUNSEL: Lynne C. Hermle (pro hac vice) California State Bar No. 99779 Hannah A. Withers (pro hac vice) California State Bar No. 292648 ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025-1015 Telephone: +1 650 614 7400 Facsimile: +1 650 614 7401 lchermle@orrick.com hwithers@orrick.com ATTORNEYS FOR DEFENDANTS GENENTECH, INC. AND FIDELITY WORKPLACE SERVICES LLC Case 3:17-cv-00712-B Document 15 Filed 04/12/17 Page 8 of 9 PageID 88 -9- CERTIFICATE OF SERVICE This is to certify that on April 12, 2017, a true and correct copy of the foregoing document was served via regular U.S. Mail and Certified U.S. Mail, Return Receipt Requested, to the following: 3 Xiumin Li 4105 Glenwick Ln. Dallas, Texas 75205 /s/ Cortney C. Thomas Cortney C. Thomas 3 Plaintiff Xiumin Li does not appear to have registered an active email address with the CM/ECF system of the United States District Court for the Northern District of Texas. US 4981562v.1 Case 3:17-cv-00712-B Document 15 Filed 04/12/17 Page 9 of 9 PageID 89 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS XIUMIN LI, Plaintiff, § § § § § § § § § § v. GENENTECH INC.; FIDELITY INC.; JOHN DOE; U.S. AMERICA, Defendants. NO. 3:17-CV-00712-B [PROPOSED] ORDER GRANTING DEFENDANT GENENTECH INC.’S MOTION TO DISMISS Before the Court is Defendant Genentech Inc.’s Motion to Dismiss. Having considered the Motion, the Court is of the opinion that it should be and hereby is GRANTED. Accordingly, Plaintiff’s claims against Defendant Genentech Inc. are DISMISSED. Because the Court has determined that any further amendment of Plaintiff’s pleading would be fruitless, Plaintiff’s claims against Defendant Genentech Inc. are dismissed WITH PREJUDICE. SO ORDERED this ______ day of _______________________, 2017. UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF TEXAS Case 3:17-cv-00712-B Document 15-1 Filed 04/12/17 Page 1 of 1 PageID 90