Daniel Ashitey v. Arista Networks, Inc. and Terry Jenkins

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 DANIEL ASHITEY, Case No. 25-cv-04411-BLF 8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION TO DISMISS FIRST AMENDED COMPLAINT WITHOUT 10 ARISTA NETWORKS, INC. and TERRY LEAVE TO AMEND; TERMINATING JENKINS, DEFENDANTS’ ALTERNATIVE 11 MOTION TO STRIKE; AND Defendants. DISMISSING ACTION WITH 12 PREJUDICE

13 [Re: ECF 33]

14 15 Defendants Arista Networks, Inc. (“Arista”) and Terry Jenkins (“Jenkins”) move to 16 dismiss the first amended complaint (“FAC”) of Plaintiff Daniel Ashitey (“Ashitey”) under 17 Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, to strike certain allegations of the 18 FAC under Federal Rule of Civil Procedure 12(f). The hearing on Defendants’ motion, previously 19 set for April 30, 2026, has been vacated. See Order Vacating Hearing, ECF 48. 20 Defendants’ motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND. 21 Defendants’ alternative motion to strike is TERMINATED AS MOOT. Finally, the action is 22 DISMISSED WITH PREJUDICE. 23 I. BACKGROUND1 24 Plaintiff Ashitey is an independent contractor who provides industry training regarding 25 cloud computing and networking. See FAC ¶¶ 7-10, ECF 32. He contracted with non-party SDN 26

27 1 This section is drawn from the allegations of the FAC, which are accepted as true for purposes of 1 Pros to provide training for Defendant Arista, a client of SDN Pros. See id. ¶ 9. Arista, which 2 designs and sells networking switches, offers cloud engineering certification courses in several 3 regions around the world. See id. at p. 2.2 Ashitey taught one or more Arista courses for an 4 unspecified period of time. See id. ¶¶ 7-12. 5 Defendant Jenkins is Arista’s head of training and certification. See FAC at p. 3. He 6 communicated with Ashitey and others through the Slack messaging platform. See FAC ¶¶ 12, 7 16. On June 13, 2024,3 Jenkins sent Slack messages to Ashitey and other SDN Pros personnel 8 criticizing Ashitey’s performance and stating that Arista had received customer complaints about 9 Ashitey. See id. ¶¶ 12, 16. Jenkins advised Ashitey that his training services were no longer 10 needed. See id. Arista cut off Ashitey’s access, removed him from all courses, and did not engage 11 him for any future training. See id. ¶ 16. 12 Ashitey filed this suit against Arista and Jenkins in May 2025, asserting that Jenkins’ Slack 13 messages gave rise to California state law claims for libel per se and tortious interference with 14 contractual relations. See Compl., ECF 1. Ashitey attached screen shots of the Slack messages as 15 exhibits to his complaint. See Compl. Exs. E-F. After reviewing the exact wording of Jenkins’ 16 allegedly tortious statements as reflected in the screen shots, the Court granted Defendants’ motion 17 to dismiss both claims, with leave to amend only as to the libel claim. See Order Granting Motion 18 to Dismiss at 9-11, ECF 31. The Court expressed grave reservations regarding Ashitey’s ability to 19 cure the defects in the libel claim, because it appeared on the face of the complaint that Jenkins’ 20 statements constituted “non-actionable opinion about Ashitey’s performance” and that Jenkins’ 21 statements fell within the common interest privilege. Order Granting Motion to Dismiss at 9-11, 22 ECF 31. However, the Court granted Ashitey an opportunity to amend because it was not clear 23 that amendment would be futile. See id. at 11. 24 2 The Court cites to the relevant page numbers of the FAC where paragraph numbers are not 25 provided.

26 3 While the FAC alleges that the relevant Slack messages were sent on June 13, 2024, the original complaint alleged that the messages were sent on June 18, 2024. See Compl. ¶¶ 19-21. Screen 27 shots of the Slack messages attached to the original complaint indicate that the messages were sent 1 Ashitey timely filed the operative FAC, which contains a single claim for libel per se based 2 on Jenkins’ Slack messages. See FAC ¶¶ 12, 16, 28, 45, 49, 53. Oddly, Ashitey has omitted all 3 screen shots of the Slack messages from the FAC. The contents of those messages, which form 4 the basis for his libel claim, are set forth only in vague and disjointed allegations scattered 5 throughout the FAC. See FAC ¶¶ 12, 16, 28, 30, 53. 6 Defendants seek dismissal of Ashitey’s libel claim with prejudice under Rule 12(b)(6). In 7 the alternative, Defendants ask the Court to strike certain allegations from the FAC. 8 II. LEGAL STANDARD 9 A. Motion to Dismiss under Rule 12(b)(6) 10 Dismissal of a complaint is appropriate under Federal Rule of Civil Procedure 12(b)(6) “if 11 the complaint fails to state a cognizable legal theory or fails to provide sufficient facts to support a 12 claim.” Sinclair v. City of Seattle, 61 F.4th 674, 678 (9th Cir. 2023). The court must “take all 13 allegations of fact as true and construe them in the light most favorable to the nonmoving party.” 14 Id. The court may consider the complaint in its entirety, documents incorporated into the 15 complaint by reference, and matters that are subject to judicial notice. See Louisiana Mun. Police 16 Employees’ Ret. Sys. v. Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016). 17 B. Motion to Strike under Rule 12(f) 18 “The court may strike from a pleading an insufficient defense or any redundant, 19 immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The function of a 12(f) 20 motion to strike is to avoid the expenditure of time and money that must arise from litigating 21 spurious issues by dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft 22 Co., 618 F.3d 970, 973 (9th Cir. 2010) (internal quotation marks and citation omitted). “If there is 23 any doubt whether the challenged matter might bear on an issue in the litigation, the motion to 24 strike should be denied, and assessment of the sufficiency of the allegations left for adjudication 25 on the merits.” Ambrozewicz v. 6Sense Insights, Inc., 804 F. Supp. 3d 1026, 1030-31 (N.D. Cal. 26 2025). 27 1 III. DISCUSSION 2 Defendants Arista and Jenkins move to dismiss the FAC’s sole claim for libel per se, 3 contending that Ashitey has failed to cure the deficiencies described in the Court’s prior dismissal 4 order. In the event the Court denies the motion to dismiss, Defendants move to strike any alleged 5 defamatory statements that the Court finds insufficient to support a libel claim. 6 Ashitey contends that the motion is both procedurally and substantively deficient. On the 7 procedural front, he argues first that Defendants improperly rely on the screen shots of Jenkins’ 8 Slack messages despite their omission from the FAC, and second that the motion violates the law- 9 of-the-case doctrine because the Court already determined that the libel claim could go forward if 10 amended. On the substance of the motion, Ashitey argues that he has stated a claim for libel per 11 se and that motions to strike are disfavored. 12 A. Procedural Issues 13 As discussed below, Ashitey’s procedural arguments are without merit. 14 1. Screen Shots of Slack Messages 15 Ashitey objects to Defendants’ reliance on the screen shots of Jenkins’ Slack messages to 16 establish the exact wording and context of Jenkins’ allegedly libelous statements. In Ashitey’s 17 view, the screen shots he submitted as exhibits to his original complaint may not be considered 18 because they have been omitted from the superseding FAC. Defendants assert that the screen 19 shots may be considered as incorporated by reference into the FAC. Ashitey argues that 20 Defendants’ invocation of the incorporation by reference doctrine is an improper attempt to 21 “weaponize” exhibits from a superseded complaint. See Pl.’s Opp. at 7-8, ECF 35. 22 “[I]ncorporation-by-reference is a judicially created doctrine that treats certain documents 23 as though they are part of the complaint itself.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 24 988, 1002 (9th Cir. 2018). “The doctrine prevents plaintiffs from selecting only portions of 25 documents that support their claims, while omitting portions of those very documents that weaken 26 – or doom – their claims.” Id. 27 The FAC makes clear that Ashitey’s libel claim is based on Jenkins’ Slack messages 1 49, 53. The Court agrees with Defendants that the screen shots displaying the Slack messages 2 therefore are incorporated by reference into the FAC. Application of the incorporation by 3 reference doctrine is particularly appropriate here, where it appears that Ashitey’s omission of the 4 screen shots from the FAC may be a deliberate attempt to obfuscate the precise wording of 5 Jenkins’ allegedly libelous statements in order to avoid dismissal on grounds previously 6 articulated by the Court. 7 Accordingly, the Court will consider the screen shots of Jenkins’ Slack messages under the 8 incorporation by reference doctrine. 9 2. Law of the Case Doctrine 10 Ashitey contends that the current motion to dismiss is “an attack on the Court’s own prior 11 ruling” because the Court’s prior dismissal order “expressly held that Claim 2 could be amended.” 12 See Pl.’s Opp. at 10. Ashitey asks the Court to deny the motion to dismiss on that basis, relying 13 on the law of the case doctrine. See id. Defendants argue that the doctrine is inapplicable. 14 “Under the law of the case doctrine, a court will generally refuse to reconsider an issue that 15 has already been decided by the same court or a higher court in the same case.” Gonzalez v. 16 Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc).4 The doctrine has no application here. 17 This Court has not previously considered, much less decided, whether the allegations of the 18 operative FAC are sufficient to state a claim for libel. Granting Ashitey leave to amend the libel 19 claim cannot be construed as a determination that such amendment would be adequate. To the 20 contrary, the Court expressed “grave reservations whether Ashitey could cure the defects in Claim 21 2 for libel,” but nonetheless granted leave to amend because it was not clear that amendment 22 would be futile. Order Granting Motion to Dismiss at 11. 23 Accordingly, the Court finds Ashitey’s reliance on the law of the case doctrine to be 24 misplaced. The Court will consider the substantive merits of Defendants’ motion. 25

26 4 This Court relies on Gonzalez rather than the case cited by Ashitey, United States v. Alexander, 106 F.3d 874 (9th Cir. 1997), because Gonzalez abrogated in part Alexander’s holdings relating to 27 the law of the case doctrine. See United States v. Gartenlaub, No. 22-55799, 2024 WL 4987258, 1 B. Substantive Issues 2 Defendants argue that Ashitey has failed to cure the pleading defects in his claim for libel 3 per se. The Court previously determined that Jenkins’ Slack messages were non-actionable 4 statements of opinion and in any event fell within the common interest privilege. Ashitey 5 contends that he has cured these pleading defects. 6 1. Failure to Allege Actionable Statements of Fact 7 “To prove defamation under California common law, the claimant must show that (1) the 8 accused party intentionally published (2) a statement of fact that is (3) false, (4) unprivileged, and 9 (5) has a tendency to injure.” Lutfi v. Al Naimi, No. CV 17-08208 SJO (JPRx), 2018 WL 10 6265082, at *4 (C.D. Cal. Jan. 17, 2018) (internal quotation marks and citation omitted). “A 11 defamatory statement that requires no explanation as to the defamatory or offensive nature of the 12 statement is libel per se.” Id. (internal quotation marks and citation omitted). “The elements of 13 libel per se are otherwise identical to the claim of defamation.” Id. (internal quotation marks and 14 citation omitted). 15 Ashitey’s libel per se claim is based on Jenkins’ statements in Slack relating to Ashitey’s 16 performance. The FAC alleges that Jenkins “published statements in a Slack channel accessible to 17 SDN Pros personnel and other third parties asserting that Plaintiff lacked the required technical 18 accuracy or quality,’ stating ‘I expect you to know the technology you are teaching beyond the 19 students while claiming that Arista had ‘received customer complaints’ about Plaintiff.” FAC ¶ 20 53. This allegation mashes up statements made by Jenkins in two separate Slack channels, as 21 shown by the screen shots of the Slack messages that are incorporated by reference into the FAC 22 and discussed below. See Compl. Exs. E, F (Slack Messages), ECF 1-5, 1-6. 23 In a Slack channel labeled 911, Jenkins stated: “just to be clear if you are teaching for me I 24 expect you to know the technology you are teaching beyond the students.” Compl. Ex. E (Slack 25 Messages), ECF 1-5. It is unclear whether that statement was directed solely to Ashitey, as 26 Jenkins immediately thereafter advised, “You guys need to do these labs and know them back and 27 forth, it is your job to support the students in this way.” Id. In the same message thread, Jenkins 1 you do not know the products and technologies in our courses I would suggest you urgently spend 2 some time learning them or you will no longer be teaching Arista.” Id. 3 In a different Slack channel, in a message thread between Jenkins, Ashitey, and two SDN 4 Pros employees, Jenkins advised Ashitey: “Daniel, we do not need you to finish the course this 5 week, we are putting another instructor in to finish the course.” Compl. Ex. F (Slack Messages). 6 Jenkins went on to say, “We have received several customer concerns and this does not support 7 the level of technical accuracy or quality that we represent.” Id. Ashitey responded, “Thanks for 8 the opportunity,” to which Jenkins replied, “You’re welcome good luck in the future.” Id. 9 The Court previously determined that the above statements in Slack “are non-actionable 10 opinion about Ashitey’s performance.” Order Granting Motion to Dismiss at 9. In making that 11 determination, this Court relied on well-established case law holding that an employer’s 12 performance evaluation cannot support a claim for libel unless it “accuses an employee of criminal 13 conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or 14 behavior[.]” Gould v. Maryland Sound Indus., Inc., 31 Cal. App. 4th 1137, 1153 (1995), as 15 modified (Feb. 9, 1995) (internal quotation marks and citation omitted). Ashitey cannot avoid the 16 impact of the Court’s prior ruling by omitting the screen shots of the Slack messages from the 17 FAC and attempting to reframe the Slack messages by summarizing them in only vague terms. 18 Ashitey speculates that Arista lied about receiving customer complaints. See FAC ¶¶ 30- 19 32, 55-57. However, he does not allege facts sufficient to give rise to a reasonable inference that 20 Arista lied. Ashitey alleges that he received positive evaluations in February 2024, several months 21 before Arista terminated his services, and that one course participant contacted him afterward to 22 praise Ashitey’s training. See id. ¶¶ 13-15, 32, 55. That some customers may have liked 23 Ashitey’s training does not mean everyone did. Ashitey admits in his FAC that he does not have 24 access to the evaluations of his training received by Arista between February and June 2024, when 25 he was removed from Arista’s programs. See id. ¶ 26. Ultimately, it does not matter whether 26 Arista’s negative performance evaluation was supported by customer complaints. An employer’s 27 performance evaluation cannot support a libel claim “even when the employer’s perceptions about 1 wrong and cannot be supported by reference to concrete, provable facts.” Gould, 31 Cal. App. 4th 2 at 1153 (internal quotation marks and citation omitted). 3 The FAC adds a new allegation that Elan Beer of SDN Pros, Inc. told Ashitey that Arista 4 fired all experienced instructors and then rehired them all except for Ashitey. See FAC ¶¶ 8, 38. 5 The significance of that allegation is unclear. It has no bearing on whether Arista’s negative 6 evaluation of Ashitey’s performance was actionable. 7 The FAC alleges that an unidentified person at Arista “informed customers that Plaintiff 8 was ‘sick’ and therefore unable to complete the course, an explanation that was knowingly false 9 and directly inconsistent with what Arista told Plaintiff, namely that it had ‘received customer 10 complaints’ about him.” FAC ¶ 54. Ashitey does not allege that he was harmed by the alleged 11 statement that he was sick, and the Court cannot perceive how the statement was defamatory even 12 if made. Ashitey contends that the statement was not true, but to give rise to liability for libel the 13 statement must be both false and injurious. 14 In summary, the Court once again finds that Ashitey has failed to allege actionable 15 statements of fact that are sufficient to support a claim of libel per se. 16 2. Failure to Allege Malice to Defeat the Common Interest Privilege 17 California Civil Code § 47(c) provides a conditional privilege for statements made “[i]n a 18 communication, without malice, to a person interested therein, (1) by one who is also interested, or 19 (2) by one who stands in such a relation to the person interested as to afford a reasonable ground 20 for supposing the motive for the communication to be innocent, or (3) who is requested by the 21 person interested to give the information.” Cal. Civ. Code § 47(c). “The ‘interest’ must be 22 something other than mere general or idle curiosity, such as where the parties to the 23 communication share a contractual, business, or similar relationship or the defendant is protecting 24 his own pecuniary interest.” Bikkina v. Mahadevan, 241 Cal. App. 4th 70, 90 (2015). The 25 defendant bears the initial burden of showing that statement falls within the privilege, then the 26 burden shifts to the plaintiff to show that the statement was made with malice. See id. The 27 plaintiff must establish “actual malice” by showing either “that the publication was motivated by 1 in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.” 2 Id. at 91 (internal quotation marks and citation omitted). 3 In its prior dismissal order, this Court determined that the application of the common 4 interest privilege appeared on the face of the complaint. See Order Granting Motion to Dismiss at 5 10. In particular, the Court noted that Ashitey, Defendants, and SDN Pros were in a business 6 relationship; Ashitey was an independent contractor assigned by SDN Pros to teach Arista’s 7 courses; Jenkins, in his role as head of training for Arista, would be expected to evaluate Ashitey’s 8 performance; and that as a result Jenkins’ statements appeared to fall within the common interest 9 privilege. See id. The Court concluded that Ashitey had not alleged facts showing malice as 10 required to defeat the common interest privilege. See id. 11 The Court agrees with Defendants that Ashitey has not cured that pleading defect. The 12 FAC does not allege facts giving rise to a reasonable inference that Jenkins acted with malice 13 when sending the Slack messages giving rise to the libel claim. “A general allegation of malice 14 will not suffice; plaintiff must allege detailed facts showing defendant’s ill will towards him.” Id. 15 (internal quotation marks and citation omitted). Bowles v. Constellation Brands, Inc., 444 F. 16 Supp. 3d 1161, 1178 (E.D. Cal. 2020). Ashitey alleges that Jenkins had no reasonable grounds for 17 criticism because Ashitey “consistently received excellent performance evaluations from SDN 18 Pros and Arista[.]” FAC ¶ 56. Ashitey’s characterization of his performance evaluations as 19 consistently excellent lacks factual support, as Ashitey concedes that “Arista alone possesses the 20 customer evaluations and feedback forms for Plaintiff’s courses.” Id. Moreover, even if the Court 21 were to accept as true Ashitey’s allegation that he received excellent evaluations in the past, those 22 evaluations do not speak to Ashitey’s performance at the time Jenkins expressed dissatisfaction 23 and reported customer concerns. Ashitey simply has not alleged a factual basis for his conclusory 24 assertions that Jenkins lacked a reasonable basis for his criticisms or lied about receiving customer 25 complaints, as required to plead malice here. 26 Ashitey argues that malice may be inferred from Defendants’ “shifting explanations” for 27 his termination, including Jenkins’ statement that Ashitey lacked the necessary technical accuracy 1 alleged statement that Ashitey was sick; and Defendants’ alleged statement that they were 2 terminating all experienced instructors and then rehiring all except Ashitey. See Pl.’s Opp. at 8. 3 As an initial matter, the first two explanations – that Ashitey lacked the necessary technical 4 accuracy and that customers expressed concerns about Ashitey – were offered by Jenkins in a 5 single sentence at the time of Ashitey’s termination. See Compl. Ex. F (Slack Messages). 6 Specifically, Jenkins advised Ashitey, “We have received several customer concerns and this does 7 not support the level of technical accuracy or quality that we represent.” Id. Ashitey responded, 8 “Thanks for the opportunity,” to which Jenkins replied, “You’re welcome good luck in the future.” 9 Id. In context, Jenkins’ statements regarding Ashitey’s technical accuracy and customer concerns 10 cannot plausibly be construed as “shifting explanations.” 11 Defendants’ alleged statement to students that Ashitey was sick properly can be 12 characterized as a shift from the explanation offered to Ashitey himself. However, there are many 13 reasons why Arista might have offered a benign explanation for Ashitey’s removal, including 14 avoiding the risk of defamation litigation or protecting Ashitey’s reputation. Ashitey has not cited 15 a single case holding that “shifting explanations” – and in particular the substitution of a benign 16 explanation like illness for a negative performance evaluation – can give rise to a plausible 17 inference of malice. Finally, Defendants’ alleged statements regarding firing and rehiring other 18 instructors do not offer any kind of explanation for Ashitey’s termination. 19 When all is said and done, it is clear that Ashitey’s allegation of malice is supported only 20 by his own beliefs that he was a good instructor and that malice on the part of Jenkins is the only 21 explanation for his termination. Ashitey’s subjective beliefs do not give rise to a plausible 22 inference that Jenkins bore him ill will or acted in reckless disregard for his rights. Accordingly, 23 even if the Court were to conclude that Jenkins’ alleged statements satisfy the elements of libel per 24 se (and they do not), the Court would find that the statements fell within the common interest 25 privilege. 26 For the forgoing reasons, the motion to dismiss under Rule 12(b)(6) is GRANTED. The 27 Court need not and does not reach the alternative motion to strike under Rule 12(f). 1 C. Leave to Amend 2 The Court next must determine whether further leave to amend is warranted under the 3 || Foman factors: (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure 4 || deficiencies by amendment, (4) undue prejudice to the opposing party, and (5) futility of 5 amendment. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) 6 || (citing Foman vy. Davis, 371 U.S. 178, 182 (1962)). 7 The record does not suggest undue delay (first factor) or bad faith (second factor) on the 8 || part of Ashitey. However, Ashitey has failed to cure the deficiencies in his libel claim despite 9 || clear guidance from the Court in its prior dismissal order (third factor). Requiring Defendants to 10 || continue litigating a libel claim that clearly has no merit would impose undue prejudice on 11 Defendants (fourth factor). Finally, the Court is persuaded that further amendment of the libel 12 || claim would be futile (fifth factor). 13 After weighing the Foman factors, the Court finds it appropriate to grant the motion to 14 || dismiss WITHOUT LEAVE TO AMEND. 3 15 IV. ORDER a 16 (1) Defendants’ motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND; 17 (2) Defendants’ alternative motion to strike is TERMINATED AS MOOT; Zz 18 (3) The action is DISMISSED WITH PREJUDICE; and 19 (4) This order terminates ECF 33. 20 21 Dated: April 27, 2026

ETH LABSON FREEMAN 23 United States District Judge 24 25 26 27 28