Early Warning Services LLC v. Johnson

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Early Warning Services LLC, No. CV-24-01587-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 Warren Vurl Johnson, et al.,

13 Defendants. 14 15 Pending before the Court is Defendant-Counter Claimant Warren Vurl Johnson’s 16 Motion for Leave to File Second Amended Counterclaims (Doc. 77 (the Motion); Doc. 17 77-1 (Second Proposed Amended Answer and Counterclaims) (sealed).) Plaintiff-Counter 18 Defendant Early Warning Services LLC (“EWS”) filed a Response (Doc. 83), and Mr. 19 Johnson filed a Reply (Doc. 87). After reviewing the briefing and the relevant case law, 20 the Court will deny Mr. Johnson’s Motion (Doc. 77). 21 Because the Court will deny Mr. Johnson leave to amend his operative Answer and 22 Counterclaims (Doc. 57 (sealed)), the Court will consider EWS’s fully briefed Motion to 23 Dismiss, (Doc. 46 (the Motion); Doc 48 (Mr. Johnson’s Response); Doc. 49 (EWS’s 24 Reply)). The Court will grant this Motion and dismiss Mr. Johnson’s Amended Answer 25 and Counterclaims (Doc. 57). 26 /// 27 /// 28 /// 1 I. BACKGROUND 2 The Court has described the background of this case in its Order granting EWS’s 3 Motion for Preliminary Injunction. (See generally Doc. 70.) Here, the Court will provide 4 a brief procedural history, which will prove helpful for analyzing the current Motions 5 before the Court. 6 On June 28, 2024, EWS filed suit against Mr. Johnson as well as Defendants 7 Brandon O’Loughlin and P.A.Z.E., LLC (“P.A.Z.E.”), alleging that they engaged in a 8 scheme to extract money from EWS using stolen documents, domain name registrations 9 incorporating EWS’s trademarks, and a sham website maintained to disparage EWS. (See 10 Doc. 1.) EWS further alleges that Defendants set out on a “lawfare” campaign against it 11 in the Trademark Trial and Appeal Board (“TTAB”) of the United States Patent and 12 Trademark Office (“USPTO”). (See id. ¶ 11.) Specific to Mr. Johnson, EWS alleges that 13 his involvement in this scheme gave rise to its claims for misappropriation of trade secrets, 14 breach of fiduciary duty, unjust enrichment, and breach of contract. (Id. ¶¶ 88–121, 15 132–134, 156–160.) EWS also alleges that it is entitled to a declaratory judgment of 16 noninfringement under 28 U.S.C. § 2201(a), 15 U.S.C. § 1125(a), and Arizona common 17 law that requires the USPTO to invalidate P.A.Z.E.’s mark applications under 15 U.S.C. 18 § 1119. (Id. ¶¶ 135–155.) On September 19, 2024, Mr. Johnson filed an Answer asserting 19 seven counterclaims against EWS and its outside counsel. (See Doc. 36 (redacted); Doc. 20 37 (sealed).) On October 10, 2024, EWS filed a Motion to Dismiss Mr. Johnson’s Answer 21 (Doc. 44). That same day, the Court lodged Mr. Johnson’s Proposed First Amended 22 Answer and Counterclaims (Doc. 57; see also Doc. 43). 23 Mr. Johnson accuses EWS of concocting a false and illegal narrative to defame him, 24 cause him emotional harm, and to abuse judicial processes. (See Doc. 57 at 40–57 25 ¶¶ 139–236.) On October 24, 2024, EWS moved to dismiss Mr. Johnson’s First Amended 26 Counterclaims under Federal Rule of Civil Procedure 12(b)(6) (Doc. 46). EWS contends 27 that several factual and legal barriers preclude Mr. Johnson’s claims. (See id.) The parties 28 fully briefed that Motion (Doc. 48 (Mr. Johnson’s Response); Doc. 49 (EWS’s Reply).) 1 On December 14, 2024, Mr. Johnson filed the instant Motion (Doc. 77 (sealed)) and 2 attached his Proposed Second Amended Answer and Counter Claims (the “Proposed 3 Counterclaims”), asserting nine counterclaims. (See Doc. 77-1 at 35–55, ¶¶ 149–282.) 4 II. LEGAL STANDARDS 5 A. Rule 15 6 Federal Rule of Civil Procedure 15(a) requires that leave to amend be “freely give[n] 7 when justice so requires.” Leave to amend should not be denied unless “the proposed 8 amendment either lacks merit or would not serve any purpose because to grant it would be 9 futile in saving the plaintiff’s suit.” Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d 10 458, 459 (9th Cir. 1986). Therefore, “a district court should grant leave to amend even if 11 no request to amend the pleading was made, unless it determines that the pleading could 12 not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 13 1127 (9th Cir. 2000) (cleaned up). While the Court enjoys discretion, it “must be guided 14 by the underlying purpose of Rule 15—to facilitate decision on the merits rather than on 15 the pleadings or technicalities.” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) 16 (citation omitted). 17 The Court considers five factors to evaluate a motion for leave to amend: bad faith, 18 undue delay, prejudice to the opposing party, futility of the amendment, and whether the 19 plaintiff previously amended the complaint. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 20 2004) (“Futility alone can justify the denial of a motion for leave to amend.”). An 21 amendment is futile where it is “subject to dismissal.” Steckman v. Hart Brewing, Inc., 22 143 F.3d 1293, 1298 (9th Cir. 1998); see also Bonin v. Calderon, 59 F.3d 815, 845 (9th 23 Cir. 1995) (“[A] court does not abuse its discretion in denying a motion to amend where 24 the movant presents no new facts but only new theories and provides no satisfactory 25 explanation for his failure to fully develop his contentions originally.”). 26 B. Rule 12(b)(6) 27 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 28 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 1 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 2 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 3 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). This exists 4 if the pleader sets forth “factual content that allows the court to draw the reasonable 5 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 6 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported 7 by mere conclusory statements, do not suffice.” Id. 8 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 9 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 10 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 11 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 12 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 13 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal 14 “probability,” but requires “more than a sheer possibility that a defendant has acted 15 unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a 16 defendant’s liability, it ‘stops short of the line between possibility and plausibility.’” Id. 17 (quoting Twombly, 550 U.S. at 557). 18 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are 19 taken as true and construed in the light most favorable to the nonmoving party. Cousins v. 20 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 21 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 22 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 23 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 24 outside the pleadings in ruling on a Rule 12(b)(6) motion to dismiss. See United States v. 25 Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider materials— 26 documents attached to the complaint, documents incorporated by reference in the 27 complaint, or matters of judicial notice—without converting the motion to dismiss into a 28 motion for summary judgment.” Id. at 908. 1 III. DISCUSSION 2 A. Mr. Johnson’s Motion for Leave to Amend (Doc. 77) 3 Mr. Johnson proposes nine counterclaims: (1) abuse of process and fraud on the 4 Court against EWS, its general counsel, Tracy Cheney, and attorneys Erick Durlach, 5 Dennis Wilson, and George Chen, (2) defamation against EWS, Ms. Cheney, and outside 6 counsel, Sara Stadler; (3) intentional infliction of emotional distress (“IIED”) against EWS; 7 (4) negligent infliction of emotional distress (“NIED”) against EWS; (5) fraud on the Court 8 against EWS, Ms. Cheney, Mr. Durlach, Mr. Wilson, and Mr. Chen; (6) a declaration that 9 the Microsoft Teams Chat (the “Privileged Chat”) is not privileged; (7) trade secret 10 misappropriation against EWS; (8) unjust enrichment against EWS; and (9) a declaration 11 that EWS’s application to register its PAZE mark is invalid. (See Doc. 77-1 at 35– 12 55 ¶¶ 149–282.) 13 EWS asserts that each of the Proposed Counterclaims fail as a matter of law, were 14 brought in bad faith, prejudice EWS, and are merely a tactic to unduly delay the 15 proceedings in this case. (Doc. 83 at 7.) EWS therefore asks that Mr. Johnson’s Motion 16 be denied. (Id. at 8 (quoting Steckman, 143 F.3d at 1298).) In reply, Mr. Johnson argues 17 that allowing him leave to amend is necessary to address EWS’s fraud, to restore the 18 integrity of the proceedings, and to uphold public policy. (Doc. 87 at 4.) 19 “[T]he proper test to be applied when determining the legal sufficiency of a 20 proposed amendment is identical to the one used when considering the sufficiency of a 21 pleading challenged under Rule 12(b)(6).” Do v. Ariz. State Univ., No. CV-22-00190- 22 PHX-JJT, 2023 WL 8622628, at *2 (D. Ariz. Dec. 13, 2023) (quoting Nordyke v. King, 23 644 F.3d 776, 788 n.12 (9th Cir. 2011), aff’d on reh’g en banc on other grounds, 681 F.3d 24 1041 (9th Cir. 2012)). Surviving a Rule 12(b)(6) motion requires a complaint to allege 25 “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 26 570. 27 Here, whether Mr. Johnson’s Proposed Counterclaims would survive the Rule 28 12(b)(6) standard depends on three legal hurdles. First, whether the Noerr-Pennington 1 doctrine or the absolute litigation privilege bars the Proposed Counterclaims. Second, 2 whether a settlement agreement that EWS and Mr. Johnson’s executed in prior litigation 3 (the “Settlement Agreement”) prevents Mr. Johnson from asserting his claims. And third, 4 whether Mr. Johnson has established Article III standing, antitrust standing, and trademark 5 standing to bring his declaratory relief claims. The Court addresses these hurdles in turn. 6 1. Noerr-Pennington Doctrine and the Absolute Litigation Privilege 7 EWS argues that Noerr-Pennington and the absolute litigation privilege bar the first 8 through fifth Proposed Counterclaims, which are (1) abuse of process; (2) defamation; (3) 9 IIED; (4) NIED; and (5) fraud on the Court. (Doc. 83 at 10–13.) Mr. Johnson argues that 10 neither apply because EWS has engaged in “fraudulent actions intended to deceive the 11 court.” (Doc. 87 at 5.) From Mr. Johnson’s perspective, EWS is engaged in “sham” 12 litigation, thereby divesting it of any protections afforded by Noerr-Pennington or the 13 litigation privilege. (Id.) 14 The First Amendment to the Constitution guarantees the right “to petition the 15 Government for a redress of grievances.” U.S. Const. amend. I, cl. 6. “The Supreme Court 16 has long recognized that for the Petition Clause to be a meaningful protection of the 17 democratic process, citizens must be immune from some forms of liability for their efforts 18 to persuade government officials to adopt policy or perform their functions in a certain 19 way.” Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056, 1059 (9th Cir. 1998). This principle is 20 embodied in the Noerr-Pennington doctrine, which provides that “those who petition all 21 departments of the government for redress are generally immune from liability.” Empress 22 LLC v. City & County of San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005). Importantly, 23 however, Noerr-Pennington immunity does not extend to those engaged in “sham” 24 litigation. See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus. 25 (“PREI”), 508 U.S. 49, 59–61 (1993). 26 Arizona’s absolute litigation privilege is similar to the Noerr-Pennington doctrine. 27 See Green Acres Tr. v. London, 688 P.2d 617, 621 (Ariz. 1984). The privilege provides: 28 “[J]udges, parties, lawyers, witnesses and jurors” are “absolutely privileged to publish defamatory matter concerning another in communications 1 preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which” they 2 participate, if the defamatory publication “relate[s] to, bear[s] on or [is] connected with the proceeding.” “The defense is absolute in that the 3 speaker’s motive, purpose or reasonableness in uttering a false statement do not affect the defense.” 4 Goldman v. Sahl, 462 P.3d 1017, 1025 (Ariz. Ct. App. 2020) (alterations in original) 5 (internal citations omitted) (quoting Green Acres Tr., 688 P.2d at 621). The privilege is 6 not limited to “defamatory statements” in defamation cases, as it also applies to other torts 7 based on such alleged statements. Evans v. McAllister, CIV 23-132-TUC-CKJ, 2023 WL 8 3345656, at *5 (D. Ariz. May 10, 2023); cf. Prakash v. Altadis U.S.A. Inc., No. 9 5:10CV0033, 2012 WL 1109918, at *10 (N.D. Ohio Mar. 30, 2012) (“Litigation privilege, 10 and its antitrust counterpart, the Noerr-Pennington doctrine, immunize [d]efendants from 11 federal or state liability based on their trademark enforcement efforts.”). But “the litigation 12 privilege does not preclude an action for improper litigation conduct.” See Goldman, 462 13 P.3d at 1033.1 14 Mr. Johnson offers five Proposed Counterclaims that implicate the 15 Noerr-Pennington doctrine and the privilege: 16 • Abuse of Process: EWS and its counsel submitted unverified and unreliable 17 information to this Court from the website without any due 18 diligence, alleging that Mr. Johnson and Mr. O’Loughlin were high school 19 classmates involved in trade secret theft. (Doc. 77-1 at 36, 38, 44, 46 ¶¶ 152, 20 160–63, 190, 198–203, 240–243); 21 • Defamation: EWS, its counsel, Sara K. Stadler, and Ms. Cheney made false and 22 23 1 Several courts have found that the litigation privilege applies to TTAB proceedings. See 24 Scoyni v. Salvador, Nos. 20-35123, 20-35564, 2021 WL 5002213, at *1 (9th Cir. Oct. 28, 2021) (“To the extent that Defendants made any defamatory communications . . . to the 25 [TTAB], those communications were protected by the litigation privilege.”); Ball Corp. v. Xidex Corp., 967 F.2d 1440, 1445 (10th Cir. 1992) (holding “that private lawyers are 26 entitled to absolute immunity from charges of defamation based on statements in the quasi- judicial setting of PTO proceedings”); Prakash v. Altadis U.S.A. Inc., No. 5:10CV0033, 27 2012 WL 1109918, at *11 (N.D. Ohio Mar. 30, 2012) (holding that the absolute litigation privilege extends to statements made in cease-and-desist letters and during opposition 28 proceedings before the TTAB); . 1 damages statements in filings before the TTAB of the USPTO falsely alleging 2 that Mr. Johnson conspired with a former classmate to steal trade secrets and 3 extort money from EWS. (Id. at 40 ¶ 171); 4 • IIED and NIED: EWS filed the pleadings for this lawsuit and the response to 5 the TTAB. Since then, EWS and Ms. Cheney have targeted Mr. Johnson’s 6 emotional well-being, aiming to coerce and intimidate him through these 7 actions. (Id. at 42–43, 44–45 ¶¶ 181–184, 190–194); 8 • Fraud on the Court: EWS knowingly presented false evidence and fabricated 9 allegations of Mr. Johnson and Mr. O’Loughlin’s high school relationship to 10 support its Complaint and Motion for Preliminary Injunction. (Id. at 46–47 11 ¶¶ 198, 200–202.) 12 Mr. Johnson’s Proposed Counterclaims predicate each cause of action on EWS’s 13 allegedly tortious activity during its petitioning activities before the government, i.e., filing 14 suit in this Court and litigating in the TTAB. To be specific, Mr. Johnson expresses that 15 this very lawsuit is the impetus for his IIED and NIED claims. (Doc. 77-1 at 42–43, 44–45 16 ¶¶ 181–184, 190–19.) Similarly, Mr. Johnson’s abuse of process, defamation, and fraud 17 on the Court claims revolve around information EWS either submitted to this Court or to 18 the TTAB. And, as alleged, Mr. Johnson’s Proposed Counterclaims are inextricably tied 19 to EWS’s efforts to seek redress and favorable outcomes in both venues. This are the 20 precise type of petitioning activities that Noerr-Pennington protects. See PREI, 508 U.S. 21 at 59 (explaining that non-sham litigation seeking to procure favorable judicial outcome 22 enjoys Noerr-Pennington immunity); see also White v. Lee, 227 F.3d 1214, 1232 (9th Cir. 23 2000). And because Mr. Johnson’s claims all pertain to statements made in this Court and 24 in the TTAB, the absolute litigation privilege would protect EWS to the same degree. See 25 Goldman, 462 P.3d at 1025; Evans, 2023 WL 3345656, at *5. So, bar certain exceptions 26 discussed below, EWS is immune from liability for counterclaims one through five. 27 As noted, a litigant engaging in sham litigation does not enjoy Noerr-Pennington 28 immunity. PREI, 508 U.S. at 59–61. And Arizona’s absolute litigation privilege does not 1 protect “improper litigation conduct.” See Goldman, 462 P.3d at 1033. It is therefore no 2 surprise that part and parcel of Mr. Johnson’s allegations are that EWS is presently 3 engaging in both sham litigation and improper conduct in this Court and the TTAB. Now, 4 if Mr. Johnson is correct, EWS would not be immune from his first five counterclaims. See 5 PREI, 508 U.S. at 59–60; Goldman, 462 P.3d at 1033. The measure of “correctness” at 6 this stage in the litigation is whether Mr. Johnson has sufficiently alleged that EWS 7 engaged in either sham litigation or improper conduct. See EcoDisc Tech. AG v. DVD 8 Format/Logo Licensing Corp., 711 F. Supp. 2d 1074, 1083 (C.D. Cal. 2010) (“At [the 9 motion to dismiss] stage in the litigation, the Court need not conclude whether [the 10 plaintiff’s] conduct was a sham. It must decide only whether Plaintiff has properly pleaded 11 that the conduct was a sham.”). 12 In PRE, the United States Supreme Court announced a two-part definition for “sham 13 litigation” in the antitrust context. 508 U.S. at 60–61. First, the lawsuit “must be 14 objectively baseless in the sense that no reasonable litigant could realistically expect 15 success on the merits.” Id. at 60. Although, “[i]f an objective litigant could conclude that 16 the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under 17 Noerr.” Id. Second, the court must focus on whether the baseless lawsuit conceals “an 18 attempt to interfere directly with the business relationships with a competitor.” Id. 19 at 60–61. Here, the Court is only meant to reach the second part if Mr. Johnson’s 20 allegations “disprove the challenged lawsuit’s legal viability,” that is, whether the suit is 21 objectively baseless. See id. 22 As noted, Mr. Johnson’s burden at this stage is to allege, observing Rule 8’s 23 requirements, that EWS is engaging in sham litigation or improper litigation conduct. See 24 EcoDisc, 711 F. Supp. 2d at 1083. He has failed to do so. His allegations start and stop 25 with the claim that EWS “deliberately submi[tted] . . . false evidence and defamatory 26 statements” which fall “within the fraud exception to” Noerr-Pennington. (See Doc. 77-1 27 at 28 ¶ 57.) Parsing through nearby allegations suggests that Mr. Johnson intends to claim 28 that when EWS alleged that he and Mr. O’Loughlin attended high school together, it 1 “improperly influence[d] the Court’s decision,” which means the company is engaged in 2 sham litigation and improper litigation conduct. (See id. ¶¶ 55–57.) These allegations, 3 even assuming their truth, do not suffice to show that EWS is engaged in either 4 deimmunizing transgression. Indeed, Mr. Johnson must plead that EWS’s lawsuit is 5 objectively a pursuit of claims so baseless that the company could not reasonably expect 6 to secure favorable relief. See PREI, 508 U.S. at 60. Objective reasonableness “is 7 measured by ‘probable cause’ as understood in traditional common law actions.” Relevant 8 Group, LLC v. Nourmand, 116 F.4th 917, 932 (9th Cir. 2024). The probable cause 9 threshold is low, as “it requires no more than a ‘reasonable belief’ that there is ‘some 10 chance’ that a claim may be held valid upon adjudication.” Id. (citation modified). Mr. 11 Johnson’s Proposed Counterclaims fail to show that EWS’s claims are objectively baseless. 12 At best, Mr. Johnson has shown that he seriously disagrees with EWS’s contention that he 13 and Mr. O’Loughlin attended Mesa High School together.2 (See Doc. 1 at 1.) 14 Mr. Johnson’s Proposed Counterclaims continuously reference this Court’s Order 15 on the Motion for Preliminary Injunction (Doc. 70) as a basis for EWS’s improper litigation 16 conduct. (See, e.g., Doc. 77-1 at 20–21 ¶¶ 3, 8, 25–26 ¶¶ 43, 45, 28 ¶ 55.) Mr. Johnson 17 also alleges that EWS’s operative Complaint is an exercise in litigation misconduct because 18 it “falsely accuse[s]” Mr. Johnson of disclosing confidential information without providing 19 supporting evidence. (Id. at 30 ¶ 63.) Considering EWS’s briefing on its Motion for 20 Preliminary Injunction as well as its Complaint supports the exact opposite conclusion. 21 See Ritchie, 342 F.3d at 907 (explaining that a court may consider materials outside the 22 complaint “without converting the motion to dismiss into a motion for summary 23 judgment”). For example, EWS presented the Court with competent evidence to 24 corroborate the claims made in the Motion for Preliminary Injunction, which the Court 25 ultimately granted. (Doc. 16; Doc. 70.) Similarly, the claims and supporting allegations

26 2 As the Court discussed in its recent Orders denying Mr. O’Loughlin’s Motion to Dismiss and Mr. Johnson’s Motion for Judicial Recusal, the now unlikely high school relation 27 between Mr. Johnson and Mr. O’Loughlin is not the smoking gun Mr. Johnson believes it to be. Indeed, if the information is ultimately false, it was proven to be so through the 28 process of litigation, a common occurrence. Moreover, the existence or nonexistence of that fact alone was not dispositive for any decision made by this Court. 1 in EWS’s Complaint, (Doc. 1), which largely mirror those in the Motion for Preliminary 2 Injunction, show that EWS’s claims may be valid upon adjudication. Relevant Group, 116 3 F.4th at 932. Mr. Johnson, apart from directing his ire at EWS’s weak allegations about 4 his and Mr. O’Loughlin’s high school relationship, has not alleged any factual material to 5 show that this case or the TTAB proceedings amount to litigation misconduct. 6 Having failed to show that EWS is pursuing sham litigation or is engaged in 7 improper litigation conduct, both Noerr-Pennington and the absolute litigation privilege 8 immunize EWS from Mr. Johnson’s Proposed Counterclaims for abuse of process, 9 defamation, IIED, NIED, and fraud on the Court. The Court therefore denies leave to file 10 those claims. 11 2. The Underlying Settlement Agreement 12 EWS argues that the Settlement Agreement bars Proposed Counterclaims three, 13 four, seven, and eight because he released his claims against EWS as of August 24, 2023. 14 (Doc. 83 at 8.) Mr. Johnson argues that the Settlement Agreement only bars those claims 15 he was aware of at the time of execution. (Doc. 87 at 5.) He therefore believes that, 16 because he learned of the “actionable harm during the current litigation,” the Settlement 17 Agreement does not bar his Proposed Counterclaims. (Id.) 18 EWS’s Complaint alleges, and Mr. Johnson admits, that the parties agreed to settle 19 Johnson’s wrongful termination action against EWS “in a Settlement Agreement bearing 20 an effective date of August 24, 2023.” (Doc. 1 ¶ 84; Doc. 77-1 at 9 ¶ 83.) Paragraph 5 of 21 that Agreement, titled “General Release of Claims” provides, in relevant part: 22 [Mr.] Johnson . . . release[s], knowingly and willingly, [EWS], [its] owners, . . . (collectively referred to as the “Released Parties”) from any kind 23 of claim [Mr.] Johnson has against the Released Parties. This general and complete release applies to all demands, disputes, complaints, causes of 24 action, and claims, known and unknown for relief, that [Mr.] Johnson may have against the Released Parties as of the date of execution of the 25 Agreement. 26 (Doc. 17-1 at 23–24.) 27 “If a release bars claims being brought in a complaint, the Court should dismiss the 28 claims pursuant to Rule 12(b)(6).” Sutton v. Shasta Indus., No. CV-20-02320-PHX-SMB, 1 2021 WL 3709853, at *5 (D. Ariz. Aug. 20, 2021) (citing Marder v. Lopez, 450 F.3d 445, 2 453 (9th Cir. 2006) (affirming dismissal of claims barred by a release)). “When contract 3 language is unambiguous, [this Court] must interpret the language as written, without 4 reference to extrinsic evidence.” McLane & McClane v. Prudential Ins., 735 F.2d 1194, 5 1195 (9th Cir. 1984); see also Isaak v. Mass. Indem. Life. Ins., 623 P.2d 11, 14 (Ariz. 1981). 6 The general release provision could not be clearer—any claims Mr. Johnson had 7 against EWS, known and unknown, arising prior to August 24, 2023, are forfeit. See, e.g., 8 Zounds Hearing Franchising LLC v. Moser, No. CV-16-00619-PHX-DGC, 2016 WL 9 6476291, at *3 (D. Ariz. Nov. 2, 2016) (“The very broad language of the Release makes 10 clear that the parties intended to release all claims that arose before the state of signing, 11 even unknown claims.”). Mr. Johnson contends that because he was not aware of his 12 claims at the time of the execution of the Settlement Agreement, his claims were not 13 “discovered,” i.e., did not accrue, until he knew of the claims. (Doc. 87 at 4–5.) The 14 discovery rule is an equitable tolling device that may pause the statute of limitations where 15 a Plaintiff has not discovered “with reasonable diligence[,] . . . the facts underlying the 16 cause [of action].” See Doe v. Roe, 955 P.2d 951, 960 (Ariz. 1998). The issue here, 17 however, is not whether the discovery rule tolls a statute of limitations, but whether the 18 general release provision precludes his counterclaims. In this instance, the discovery rule 19 is inapposite, and thus Mr. Johnson cannot rely on the argument that he was not aware of 20 the “actionable harm” until this litigation to run end around his complete release of all 21 claims both known and unknown under the terms of the Settlement Agreement. 22 The next question before the Court is whether Mr. Johnson’s Proposed 23 Counterclaims existed at the time of, or before, the execution of the Settlement Agreement. 24 If the claim existed, it is barred. 25 a. Trade Secrets Misappropriation and Unjust Enrichment 26 Mr. Johnson is not a paragon of clarity with respect to his trade secrets 27 misappropriation and unjust enrichment claims. Seemingly related to those claims, 28 however, are allegations that the Settlement Agreement “did not address or anticipate 1 EWS’s claims of ownership over the Tools.” (Doc. 77-1 at 25 ¶ 37.) The “Tools” Mr. 2 Johnson refers to are the several Excel workbooks that EWS claims to contain the 3 proprietary information upon which it, in part, bases its trade secret misappropriation claim. 4 (See Doc. 1; Doc. 17.) In any event, Mr. Johnson’s own allegations show he would have, 5 or should have, known about the alleged claims before the execution of the Settlement 6 Agreement. (See Doc. 77-1 at 50–52 ¶¶ 254–268.) Indeed, from the time of his 7 termination from EWS’s legal team, the company would have been using Mr. Johnson’s 8 alleged trade secrets to develop products and derive profit from the information without 9 his consent. arrivia Inc. v. Rowley, No. CV-23-01039-PHX-DLR, 2023 WL 7386384, 10 at *5, *7 (D. Ariz. Nov. 8, 2023) (explaining that a trade secret misappropriation claim 11 accrues “at the time of the initial misappropriation”); Loiselle v. Cosas Mgmt. Grp., LLC, 12 228 P.3d 934, 946 (Ariz. Ct. App. 2010); (Doc. 77-1 at 51 ¶ 262 (“EWS wrongfully 13 acquired . . . [Mr. Johnson’s] Tools . . . [when it] immediately locked him out of the system 14 during the termination call, preventing him from retrieving his intellectual property.”).3 15 Therefore, the release provision in the Settlement Agreement bars Mr. Johnson’s trade 16 secrets misappropriation and unjust enrichment claims, making amendment futile. 17 b. IIED and NIED 18 Pieces of Mr. Johnson’s IIED claim are predicated on EWS’s and its attorneys’ 19 conduct during his employment at the company. For example, Mr. Johnson contends that 20 Ms. Cheney engaged in “extreme and outrageous conduct, including withholding bonuses, 21 [and] wrongful termination.” (Doc. 77-1 at 20 ¶ 6.) To the extent that the IIED claim is 22 predicated on Ms. Cheney’s conduct up until the Settlement Agreement, it is barred. See 23 Alexander v. City of Mesa, No. CV-14-00754-PHX-SPL, 2015 WL 13655673, at *10 (D. 24 Ariz. Sept. 30, 2015) (holding a claim for IIED accrues under Arizona law “when a plaintiff 25 knows or has reason to know of the injury which is the basis of his action” (citation 26 3 This allegation directly contradicts Mr. Johnson’s previous sword statement that “the 27 individual Excel spreadsheet templates . . . are not trade secrets” and that “he did not take measures to keep the indexes secret.” (Doc. 24-1 ¶¶ 4; 17 (sealed).) Thus, even if the 28 Settlement Agreement did not bar these claims, there are serious doubts about the plausibility of Mr. Johnson’s proposed allegations in light of his prior statements. 1 omitted)), aff’d, 697 F. App’x 512 (9th Cir. 2017). 2 Mr. Johnson also alleges that EWS and Ms. Cheney have “targeted [Mr. Johnson’s] 3 emotional well-being” by filing this lawsuit and the response to the TTAB, giving rise to 4 his NIED claim. (Doc. 77-1 at 42, 44 ¶¶ 181, 190–91.) These actions, while occurring 5 after the Settlement Agreement was executed, are precluded by Noerr-Pennington and the 6 absolute litigation privilege. Moreover, even if these claims are not barred, Mr. Johnson 7 alleges nothing more than bare factual assertions that EWS’s lawsuit and Ms. Cheney’s 8 vague acts caused him emotional harm. Iqbal, 556 U.S. at 678 (2009) (“Threadbare recitals 9 of the elements of a cause of action, supported by mere conclusory statements, do not 10 suffice.”). Therefore, Mr. Johnson’s Proposed Counterclaims of IIED and NIED are 11 precluded. 12 At bottom, the Settlement Agreement, at least, precludes Mr. Johnson’s claims for 13 trade secrets misappropriation, unjust enrichment, IIED, and NIED. Therefore, his Motion 14 for Leave to Amend to assert those claims is denied. 15 3. Declaratory Relief 16 EWS argues that Mr. Johnson is not entitled to declaratory relief because he lacks 17 standing (Doc. 83 at 17–19.) In turn, Mr. Johnson argues that he has standing to bring 18 these claims. (Doc. 87 at 6–7.) 19 Mr. Johnson seeks two forms of declaratory relief. First, in his sixth Proposed 20 Counterclaim, he seeks a declaration that the Privileged Chat “falls within the crime-fraud 21 exception” to the attorney-client privilege because “it involves admissions and discussions 22 regarding . . . violations of the Sherman Act.” (Doc. 77-1 at 48–49 ¶¶ 246, 251.) Second, 23 in his ninth Proposed Counterclaim, he seeks a declaration that EWS’s application to 24 register its PAZE mark is invalid. (Id. at 53–55, ¶¶ 243–45.) 25 Generally, persons asserting claims in federal court “must satisfy the threshold 26 requirement imposed by Article III of the Constitution by alleging an actual case or 27 controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). To establish Article 28 III standing, “an injury must be ‘concrete, particularized, and actual or imminent; fairly 1 traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. 2 Amnesty Int’l, USA, 568 U.S. 398, 409 (2013) (quoting Monsanto Co. v. Geerston Seed 3 Farms, 561 U.S. 139, 149 (2010)). 4 a. The Sherman Act 5 To have standing to sue under the Sherman Act, a plaintiff must satisfy the 6 requirements of Article III standing as well as the additional requirement of antitrust 7 standing. See Am. Ad Mgmt., Inc. v. Gen. Tele. Co. of Cal., 190 F.3d 1051, 1054 (9th Cir. 8 1999). “[C]ourts have constructed the concept of antitrust standing, under which they 9 evaluate the plaintiff’s harm, the alleged wrongdoing by defendants, and the relationship 10 between them, to determine whether a plaintiff is a proper party to bring an antitrust claim.” 11 Id. (internal citation omitted). The factors to consider include: (1) The nature of the 12 plaintiff’s alleged injury; that is, whether it was the type of injury the antitrust laws were 13 intended to forestall; (2) The directness of the injury, i.e., causation; (3) The speculative 14 measure of the harm; (4) The risk of duplicative recovery; and (5) The complexity in 15 apportioning damages. See Amarel v. Connell, 102 F.3d 1494, 1507 (9th Cir. 1996). 16 Although “[n]o single factor is decisive,” R.C. Dick Geothermal Corp. v. Thermogenics, 17 Inc., 890 F.2d 139, 146 (9th Cir. 1989), an injury is necessary, City of Oakland v. Oakland 18 Raiders, 20 F.4th 441, 456 (9th Cir. 2021) (“[T]he first factor—antitrust injury—is 19 mandatory.”). 20 Mr. Johnson contends that EWS’s conduct involves “admissions and discussions 21 regarding ongoing or planned illegal conduct, . . . [in] violation of the Sherman Act.” 22 (Doc. 77-1 at 48 ¶ 246.) His allegations then trail off into a discussion regarding EWS’s 23 use of the Privileged Chat in this litigation before concluding with a request for the Court 24 to find that the Chat is “not a trade secret.” (Id. at 50.) Mr. Johnson’s sixth counterclaim 25 suffers from a case of identity crisis. It is not clear exactly what law Mr. Johnson intends 26 to use as the basis for his requested relief. And though the allegations are not well pled, 27 taking them as true but for a moment suggests that he alleges violations of the Sherman 28 Act and “other anti-competitive practices.” (Id. at 48 ¶ 246.) If this is the case, he has 1 utterly failed to allege any fact that would sufficiently establish antirust injury or state a 2 claim under the Sherman Act. See ” Glen Holly Enter., Inc. v. Tektronix, Inc., 352 F.3d 3 367, 374 (9th Cir. 2003) (discussing antitrust injury); Brantley v. NBC Universal, Inc., 675 4 F.3d 1192, 1197 (9th Cir. 2012) (setting forth the elements for a Section 1 claim); Aerotec 5 Int’l, Inc v. Honeywell Int’l, Inc., 4 F. Supp. 3d 1123, 1137 (D. Ariz. 2014), aff’d, 836 F.3d 6 1171 (9th Cir. 2016) (setting forth the elements for a Section 2 claim). At any rate, Mr. 7 Johnson has failed to allege a claim under the Sherman Act, and the Court cannot discern 8 what other legal basis Mr. Johnson may have for bringing his sixth Proposed Counterclaim. 9 Leave to amend to assert it is therefore denied. 10 b. The Declaration of Invalidity 11 EWS argues that Mr. Johnson lacks standing to seek declaratory relief to render its 12 application to register its PAZE mark invalid. (Doc. 83 at 19.) Specifically, EWS contends 13 that Mr. Johnson attempts to manufacture standing by alleging he “personally filed” the 14 application, giving him “a particular interest in correcting the fraud carried out by EWS.” 15 (Doc. 83 at 20.) 16 Mr. Johnson first argues that being named in this lawsuit gives him standing to 17 challenge the application because he has suffered injuries from litigation costs, reputational 18 harm, and emotional distress. (Doc. 87 at 6 (citing MedImmune Inc. v. Genentech, Inc., 19 549 U.S. 118 (2007)).) He goes on to argue that the fraudulent trademark application bears 20 his signature, which may result “in him being subpoenaed, or even named” causing 21 reputational and person harm. (Id.) Finally, Mr. Johnson contends that by invalidating 22 EWS’s application, he “receives redressability in the form of clearing his name and 23 reputation at the USPTO and will eliminate the lawsuit claim he has been included in as a 24 defendant.” (Id.) 25 Mr. Johnson must establish injury-in-fact—he “must show that he or she suffered 26 an invasion of a legally protected interest that is concrete and particularized and actual or 27 imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 578 U.S. 330, 339–40 28 (2016) (citation modified). Mr. Johnson argues that he has suffered injuries in the form of 1 litigation costs and emotional damage. (Doc. 87 at 6.) Nowhere in his Proposed Amended 2 Counterclaims, however, does he allege an injury relevant to his request for a declaration 3 of invalidity. (See generally Doc. 77-1.) Likewise, Mr. Johnson’s proposed pleading does 4 not offer allegations on traceability or redressability. And while he may argue in his Reply 5 brief that those facts exist, (see Doc. 87 at 6), the Court looks to the allegations in the 6 proposed pleading. Ctr. for Biological Diversity v. United States Forest Serv., 746 F. Supp. 7 3d 749, 755 (D. Ariz. 2024). Mr. Johnson has failed to establish any of the required 8 elements of Article III standing for his declaratory relief claim related to EWS’s PAZE 9 application. 10 In addition to failing to establish the general Article III standing requirements, Mr. 11 Johnson makes no serious effort to address the analytical framework in Lexmark 12 International, Inc. v. Static Control Components, Inc., to establish statutory standing to 13 cancel EWS’s application. 572 U.S. 118, 129–34. Mr. Johnson must plead and prove: (1) 14 an interest falling within the zone of interests protected by the statute; and (2) proximate 15 causation. Id. Mr. Johnson does not allege any statute upon which his claim rests and 16 seemingly places himself outside of the zone of interest, claiming that he “has [no] relation 17 or interest in the P.A.Z.E. business, dealings, or outcome of the TTAB proceedings.” (Doc. 18 77-1 at 18 ¶ 186.) 19 While Mr. Johnson has not cited any proper authority upon which the Court may 20 declare EWS’s application invalid, the Court understands the request to be based on 21 Section 13 of the Lanham Act, 15 U.S.C. § 1063(a). Section 1063(a) provides: 22 Any person who believes that he would be damaged by the registration of a mark upon the principal register . . . [may] file an opposition in the Patent 23 and Trademark Office . . . within thirty days after the publication . . . of the mark sought to be registered. 24 The plain language of that statute states that the proper venue is the TTAB, not district 25 court. To cancel the application, he must have filed an opposition in the TTAB within 26 thirty (30) days of the publication of EWS’s application. Mr. Johnson’s ninth Proposed 27 Counterclaim is therefore incurably infirm. Leave to assert it is denied. 28 At bottom, all of Mr. Johnson’s Proposed Counterclaims would be subject to 1 dismissal under Rule 12(b)(6). Therefore, the Court will deny his Motion in its entirety. 2 B. EWS’s Motion to Dismiss 3 EWS moves to dismiss all claims asserted in Mr. Johnson’s First Amended Answer 4 and Counterclaims (Doc. 57; Doc. 43.) Mr. Johnson has alleged the following claims: (1) 5 abuse of process against EWS; (2) abuse of process against EWS, Ms. Cheney, Mr. 6 Durlach, Mr. Wilson, and Mr. Chen; (3) defamation against Ms. Stadler; (4) defamation 7 against Ms. Cheney; (5) IIED against EWS; and (6) NIED against EWS (collectively, the 8 “Counterclaims”). (Doc. 57 at 40–57 ¶¶ 139–236.) As is evident from the titles of Mr. 9 Johnson’s claims, they contain similar allegations he also proposed in the above discussed 10 Motion. Therefore, relevant for the Court’s discussion are Noerr-Pennington, the absolute 11 litigation privilege, and the Settlement Agreement. 12 1. Noerr-Pennington Doctrine and the Absolute Litigation Privilege 13 As discussed, Noerr-Pennington provides that “those who petition all departments 14 of the government for redress are generally immune from liability.” Empress, 419 F.3d 15 at 1056. Additionally, Arizona’s absolute litigation privilege provides that “[j]udges, 16 parties, lawyers, witnesses and jurors” are absolutely privileged to publish allegedly 17 defamatory statements “in communications preliminary to a proposed judicial proceeding, 18 or in the institution of, or during the course and as a part of, a judicial proceeding” if the 19 allegedly defamatory publication “relate[s] to, bear[s] on or [is] connected with the 20 proceeding.” Goldman, 462 P.3d at 1025 (citation modified). The Court now applies these 21 doctrines to Mr. Johnson’s operative Counterclaims. 22 a. Abuse of Process 23 Mr. Johnson’s alleges abuse of process against EWS and counsel based on several 24 actions related to petitioning activities in this Court and the TTAB. In short, Mr. Johnson 25 contends that EWS engaged in abuse of process by: (1) including him as a Defendant in 26 this lawsuit; (2) relying on the website as a “key component” of this 27 action; (3) making accusations “against PAZE that are not relevant to” Mr. Johnson; (4) 28 accusing Mr. Johnson of attempting to invalidate certain trademarks; (5) failing to properly 1 serve P.A.Z.E. before filing the Motion for Preliminary Injunction; (6) filing a bogus 2 Motion for Preliminary Injunction; (7) providing an “inaccurate accounting” of Mr. 3 Johnson’s termination from EWS; (8) accusing Mr. Johnson of using EWS’s confidential 4 information and trade secrets to start the TTAB proceedings; (9) “systematically abus[ing] 5 the document sealing process”; and (10) publishing defamatory remarks to in the TTAB 6 proceedings. (Doc. 57 at 41–49 ¶¶ 141–192.) 7 Like his proposed abuse of process claim, the common vein flowing through the 8 operative counterclaims are that EWS and counsels’ statements in the course of their 9 petitioning activities somehow harmed him. To reiterate, petitioning activities and 10 defamatory statements made therein are generally protected by Noerr-Pennington and the 11 absolute litigation privilege absent certain inapplicable exceptions. PREI, 508 U.S. 12 at 59–60; Goldman, 462 P.3d at 1025, 1033. As was the case with Mr. Johnson’s Proposed 13 Counterclaims, he does not sufficiently allege that EWS or counsel is engaging in sham 14 litigation or improper litigation conduct. The Court will therefore dismiss Mr. Johnson 15 abuse of process claims. 16 b. Defamation 17 Mr. Johnson alleges EWS defamed him by making “false and damaging statements” 18 in the TTAB, which include that Mr. Johnson conspired with Mr. O’Loughlin to steal trade 19 secrets and extort money from EWS; Mr. Johnson authored responses in the TTAB using 20 EWS’s confidential information; and that Mr. Johnson is a registered patent agent. (See 21 Doc. 57 at 50–53 ¶ 194–206.) To the extent that Mr. Johnson’s claims are based on EWS’s 22 petitioning or filing activities before the TTAB, they will be precluded by both the Noerr- 23 Pennington doctrine and the absolute litigation privilege. PRE, 508 U.S. at 59–60; 24 Goldman, 462 P.3d at 1025. 25 The allegations separate from those related to the TTAB are that, “upon information 26 and belief,” EWS and Ms. Cheney have published defamatory statements to “individuals 27 within [Mr. Johnson’s] professional circle,” which “ha[s] likely contributed to the damage 28 to [Mr. Johnson’s] reputation.” (Doc. 57 at 52–53 ¶¶ 208–214.) Mr. Johnson admits that 1 he “does not currently possess direct evidence of all defamatory statements made by Ms. 2 Cheney and EWS, [as] such evidence is expected to emerge through the discovery process” 3 and that Ms. Cheney and EWS’s “control over much the relevant information” prevents 4 him from substantiating his claim prior to discovery. (Id. at 53 ¶¶ 213–14.) These 5 allegations are legal conclusions couched as factual allegations that the Court does not 6 credit as true. See Iqbal, 556 U.S. at 678–679; see also Bullseye Glass Co. v. Brown, 366 7 F. Supp. 3d 1190, 1198 (finding allegations that the defendant “disseminated false and 8 misleading maps purporting to show results of the moss study in an effort to falsely paint 9 [the plaintiff] as the epicenter of industrial pollution in Portland” to be a legal conclusion 10 couched as a factual allegations because “[the plaintiff] offer[ed] no specific allegations of 11 fact to plausibly support” that characterization). 12 Additionally, Mr. Johnson’s allegations show that he is attempting to conduct a 13 fishing expedition in hopes of finding evidence supporting his claims. DM Rsch., Inc. v. 14 Coll. Of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999) (“Conclusory allegations in a 15 complaint, if they stand alone, are a danger sign that the plaintiff is engaged in a fishing 16 expedition.”) A complaint is not a vehicle to facilitate expeditions in hope that some fact 17 supporting an allegation will be uncovered. See Creech v. Kind Lending LLC, CV-22- 18 00871-PHX-SMB, 2024 WL 4591811, at *2–3 (D. Ariz. Oct. 28, 2024) (finding that the 19 plaintiff was attempting to conduct a fishing expedition where she alleged that, without 20 discovery, she could not “fully and accurately allege the facts of the case”).4 21 The price of entry to discovery is for Mr. Johnson to have pled enough factual 22 material such that further proceedings are warranted. He has failed to do so here, as he 23 merely alleges that discovery would help him overcover the facts necessary to substantiate 24 his claims. See Painsolvers, Inc. v. State Farm Mut. Auto. Ins., 732 F. Supp. 2d 1107, 1124 25 4 Additionally, Mr. Johnson offers no more than conclusory allegations regarding the harm 26 of the alleged defamatory remarks. (See Doc. 57 at 51 ¶ 205 (“[Mr. Johnson] suffered severe damages to his professional reputation . . . . This defamation has significantly 27 harmed [Mr. Johnson’s] career prospects.”).) Axiomatic to most claims for defamation are sufficient allegations that plaintiff’s reputation suffered harm. See Rogers v. Mroz, 502 28 P.3d 986, 990 (Ariz. 2022) (“[A] speaker may be liable for damages if a falsehood is published that injures the plaintiff’s reputation.”). 1 (D. Haw. 2010) (“Plaintiff’s opposition amounts to a claim that [the defendant] is 2 withholding documents that [the plaintiff] ‘imagines might support its defamation claim’ 3 and [is] a fishing expedition in search of additional documents.”); cf. Creech, 2024 WL 4 4591811, at *3. 5 At bottom, Mr. Johnson has failed to state a claim for defamation. 6 c. IIED and NIED 7 Mr. Johnson alleges that EWS and Ms. Cheney inflicted intentional emotional 8 distress upon him when they “[d]efam[ed] him within his professional community” and 9 “[h]arass[ed] him through baseless legal action.” (Doc. 57 at 54 ¶ 220.) Although Mr. 10 Johnson makes no specific allegations about precisely when the alleged defamatory 11 remarks were made. (See generally id.) Similarly, Mr. Johnson alleges that EWS 12 negligently caused him emotional harm when it “submit[ed] and reli[ed] upon fraudulent 13 evidence in litigation proceedings” and “initiated [this] baseless lawsuit against [him] at a 14 particularly vulnerable time.” (Id. ¶¶ 231–232.) 15 As alleged, Mr. Johnson’s claims for IIED and NIED are based on EWS’s 16 petitioning activities in this Court and before the TTAB. Like his Proposed Counterclaims, 17 his operative counterclaims are precluded because EWS enjoys Noerr-Pennington 18 immunity and protection by the absolute litigation privilege for its petitioning activities. 19 See Empress, 419 F.3d at 1056; See Goldman, 462 P.3d at 1025. 20 2. The Settlement Agreement 21 EWS argues that Mr. Johnson’s IIED and NIED claims are barred to the extent that 22 those claims arise from EWS’s allegedly tortious activity as of the date of the Settlement 23 Agreement. (Doc. 46 at 8.) Mr. Johnson responds that the Settlement Agreement only 24 effectuated the release of his wrongful termination claims. (Doc. 48 at 5.) 25 The Court has already discussed the meaning and effect of the release provision in 26 the Settlement Agreement. To reiterate, that provision “applies to all demands, disputes, 27 complaints, causes of action, and claims, known and unknown for relief, that [Mr.] Johnson 28 may have against the Released Parties as of the date of execution of the Agreement. (Doc. 1|| 17-1 at 23-24.) 2 The scope of the provision is not only limited to Mr. Johnson’s wrongful termination 3|| claim. See Moser, 2016 WL 6476291, at *3 (“The very broad language of the Release 4|| makes clear that the parties intended to release all claims that arose before the state of signing, even unknown claims.”).° Therefore, EWS is correct in that the provision bars 6|| Mr. Johnson’s ITED and NIED claims to the extent that they are based on EWS’s allegedly 7 || tortious acts occurring on the date of, or before, the execution of the Settlement Agreement. IV. CONCLUSION 9 Accordingly, 10 IT IS HEREBY ORDERED denying Mr. Johnson’s Motion for Leave to File 11 || Second Amended Counterclaims (Doc. 77). 12 IT IS FURTHER ORDERED granting EWS’s Motion to Dismiss (Doc. 46). The 13 || counterclaims asserted in Mr. Johnson’s First Amended Answer and Counterclaims (Doc. 57; Doc. 43) are dismissed with prejudice. 15 Dated this 18th day of July, 2025. 16 Se . ~P 17 SO

18 Gnted States District lodge 19 20 21 22 23 24 25 26 27 > The contractual language in the Settlement Agreement is unambiguous. Consequently, 28] the Court will not look to Mr. Johnson’s various comments on the pre-execution draft of the Agreement to discern meaning or intent. See McLane & McClane, 735 F.2d at 1195.

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