Gopinath v. Somalogic, Inc.

• Court: District Court, S.D. California
• Decided: August 21, 2023
• Docket: 3:23-cv-01164
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ASHWIN GOPINATH, Case No.: 23-cv-1164-W-WVG

14 Plaintiff, ORDER GRANTING IN PART 15 v. AND DENYING IN PART SOMALOGIC, INC.’S MOTION 16 SOMALOGIC, INC., a Delaware TO DISMISS PLAINTIFF’S corporation; and DOES 1 through 20, 17 COMPLAINT AND STRIKE inclusive, PRAYER FOR EXEMPLARY 18 AND PUNITIVE DAMAGES Defendants. 19 [DOC. 7]

20 21 Pending before the Court is Defendant SomaLogic, Inc.’s Motion To Dismiss 22 Plaintiff’s Complaint and Strike Prayer for Exemplary and Punitive Damages (the 23 “Motion”) [Doc. 7]. 24 The Court decides the matter on the papers submitted and without oral argument. 25 See Civ. R. 7.1(d)(1). For the following reasons, the Court GRANTS IN PART and 26 DENIES IN PART SomaLogic’s Motion [Doc. 7]. 27 28 1 I. FACTUAL BACKGROUND 2 Plaintiff Dr. Gopinath, cofounded Palamedrix, Inc. (“Palamedrix”) and served as 3 Chief Technology Officer for the company. (Compl. [Doc. 12] ¶¶ 17, 19.) In 2021, the 4 Defendant in this case, SomaLogic, Inc. (“SomaLogic”), approached Palamedrix to 5 discuss a potential merger. (Id. ¶¶ 18, 22.) After about one year of negotiations, 6 SomaLogic and Palamedrix entered into a merger agreement on July 25, 2022 (“Merger 7 Agreement”). (Id. ¶ 25.) 8 Under the Merger Agreement, SomaLogic agreed to pay $35 million upon closing 9 of the merger, comprising $14 million cash (“Upfront Cash Consideration”) and $21 10 million in SomaLogic common stock (“Upfront Stock Consideration”). (Id. ¶ 26.) The 11 Upfront Stock Consideration was divided between Dr. Gopinath and Palamedrix’s other 12 Founders. (Id.) SomaLogic also agreed to pay up to an additional $17.5 million in 13 “Milestone Consideration” to the Founders if SomaLogic achieved certain revenue-based 14 milestones by 2027 and 2028. (Id. ¶ 33.) Under the Merger Agreement, a Founder is not 15 eligible to receive this additional consideration unless the Founder “remains a full-time 16 employee” with SomaLogic when the milestones are achieved. (Id. ¶ 34.) 17 In connection with the Merger Agreement, SomaLogic provided Dr. Gopinath with 18 a Founder Side Letter Agreement, dated July 25, 2022 (“Founder Side Letter”). (Id. ¶ 19 27.) Under the Founder Side Letter, Dr. Gopinath’s Upfront Stock Consideration was 20 “fully vested ‘subject to the risk of forfeiture[.]’” (Id. ¶¶ 27–29.) The Founder Side 21 Letter provides that Dr. Gopinath would automatically forfeit certain percentages of the 22 Upfront Stock Consideration if he left SomaLogic before the 12- month, 24-month, or 23 36-month anniversaries of the merger’s closing. (Id. ¶ 28.) But if Dr. Gopinath resigned 24 for “Good Reason” (or was terminated without “Cause”), then his Upfront Stock 25 Consideration would “no longer be subject to forfeiture.” (Id. ¶ 29.) The Merger 26 Agreement defines “Good Reason” to include “a material, adverse change in [a] 27 Founder’s title, authority, duties or responsibilities.” (Id. ¶ 30.) 28 1 SomaLogic’s merger with Palamedrix successfully closed on August 31, 2022. 2 (Id. ¶ 25.) After the merger, Dr. Gopinath joined SomaLogic as Senior Director, Assay 3 Development and reported to Dr. Shane Bowen. (Id. ¶ 35.) As required by the parties’ 4 agreements, SomaLogic paid Dr. Gopinath his portion of the Upfront Stock 5 Consideration upon closing, comprising millions of dollars in compensation. (Id. ¶¶ 26, 6 32.) 7 Issues between Dr. Gopinath and SomaLogic quickly piled up. Dr. Gopinath 8 alleges that “SomaLogic [] prevented former Palamedrix employees from continuing 9 their research and development” and “ma[de] it unnecessarily difficult for former 10 Palamedrix employees to buy even the most basic supplies for research.” (Id. ¶ 43.) He 11 further alleges that SomaLogic’s Vice President of Technology Development, Shane 12 Bowen, “harasses, demeans, and discriminates against SomaLogic’s female employees.” 13 (Id. ¶ 45.) In an interview with SomaLogic’s Senior Vice President of People & Culture, 14 Alison Roelke, Dr. Gopinath “confirmed that Mr. Bowen engaged in inappropriate 15 behavior.” (Id. ¶ 46.) 16 According to Dr. Gopinath, “SomaLogic’s bungling of the Palamedrix acquisition, 17 its mismanagement of former Palamedrix employees, and its promotion of Mr. Bowen 18 led most of Dr. Gopinath’s team from Palamedrix to quit.” (Id. ¶ 51.) This included four 19 of Dr. Gopinath’s six reports. (Id. ¶ 6.) Dr. Gopinath alleges that the “loss of former 20 Palamedrix employees substantially impaired Dr. Gopinath’s ability to execute his duties 21 and responsibilities and achieve the Milestones.” (Id. ¶ 54.) Furthermore, “SomaLogic 22 impeded Dr. Gopinath’s attempts to replace these former Palamedrix employees” and 23 “did not provide Dr. Gopinath with the budget to hire a complete and qualified team 24 needed to achieve the Milestones.” (Id. ¶ 55–56.) 25 Less than three months after the merger closed, in November 2022, Dr. Gopinath 26 “notified SomaLogic that he had Good Reason to resign.” (Id. ¶ 58.) “In response, Dr. 27 Gopinath was banned from SomaLogic’s offices.” (Id. ¶ 59.) A few months later, Dr. 28 Gopinath emailed SomaLogic’s Board of Directors to report that he had “faced 1 problematic behavior from [his] chain of command and HR[.]” (Id. ¶ 68.) Dr. Gopinath 2 “reported Mr. Bowen’s unethical and unlawful conduct to SomaLogic’s Board of 3 Directors” and expressed his concern that “there is a systemic problem with the 4 Somalogic culture and leadership.” (Id. ¶¶ 67, 71.) According to Dr. Gopinath, when he 5 tried to address these issues with SomaLogic leadership he “was immediately asked to 6 work remotely, given vague tasks with unclear instructions, and asked to create an IP 7 paper trail that could create issues for Somalogic, for which [he] would likely be blamed 8 later.” (Id. ¶ 70.) 9 In response to Dr. SomaLogic’s email, “SomaLogic revoked Dr. Gopinath’s access 10 to SomaLogic’s systems and his SomaLogic email account.” (Id. ¶ 73.) About a month 11 later, Dr. Gopinath “resigned” from his position at SomaLogic when he emailed notice of 12 “his resignation” to several SomaLogic executives. (Id. ¶ 75.) In that email, Dr. 13 Gopinath stated that his resignation was “effective immediately.” (Id.) Later that day, 14 SomaLogic sent him a “termination letter” that “purport[ed]” to “terminate[]” his 15 employment with SomaLogic “effective immediately.” (Id. ¶ 77.) 16 17 II. PROCEDURAL HISTORY 18 SomaLogic brought this motion on June 29, 2023. SomaLogic’s first argument in 19 the Motion was that the Complaint should be dismissed under the forum non conveniens 20 doctrine based on the Forum Selection Clause in the Employment Agreement between 21 the Parties. (Mot. at 6.) On July 27, 2023, while this motion was pending, SomaLogic 22 informed Dr. Gopinath that it was “withdrawing its forum non conveniens argument.” 23 (See Decl. of R. Taylor [Doc. 13-1] at 1.) In its Reply, SomaLogic withdrew the forum 24 non conveniens argument reflected in Section III.A of the Motion. (Reply [Doc. 15] at 2, 25 n. 1.) SomaLogic’s other arguments as to its motion to dismiss and motion to strike 26 remain. 27 28 1 III. MOTION TO DISMISS 2 A. Legal Standard 3 Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to 4 dismiss for failing “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 5 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint’s sufficiency. See 6 N. Star Int’l v. Ariz. Corp. Comm’n., 720 F. 2d 578, 581 (9th Cir. 1983). A complaint 7 may be dismissed as a matter of law either for lack of a cognizable legal theory or for 8 insufficient facts under a cognizable theory. Balisteri v. Pacifica Police Dep’t., 901 F.2d 9 696, 699 (9th Cir. 1990). In ruling on the motion, a court must “accept all material 10 allegations of fact as true and construe the complaint in a light most favorable to the non- 11 moving party.” Vasquez v. L.A. Cnty., 487 F. 3d 1246, 1249 (9th Cir. 2007). 12 To survive a motion to dismiss, a complaint must contain “a short and plain 13 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 14 8(a)(2). The Supreme Court has interpreted this rule to mean that “[f]actual allegations 15 must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 16 Twombly, 550 U.S. 554, 555 (2007). The allegations in the complaint must “contain 17 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 18 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 19 Well-pled allegations in the complaint are assumed true, but a court is not required 20 to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable 21 inferences. Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State 22 Warriors, 266 F. 3d 979, 988 (9th Cir. 2001). 23 B. Analysis 24 1. Declaratory Judgement 25 Dr. Gopinath’s declaratory judgement cause of action “seeks a declaration that he 26 resigned” from SomaLogic “for ‘Good Reason,’ as defined in the Merger Agreement.” 27 (Id. ¶ 80.) Dr. Gopinath alleges that “Good Reason” existed for his purported resignation 28 1 responsibilities.” (Id. ¶ 82.) SomaLogic argues that this cause of action should be 2 dismissed for two reasons. (Mot. at 10–11.) 3 First, SomaLogic argues that “the Complaint contains no allegations showing how 4 or when any supposed changes in Plaintiffs’ [sic] title, authority, duties, or 5 responsibilities occurred.” (Mot. at 11.) The Court disagrees. The Complaint contains a 6 substantial number of allegations alleging how Dr. Gopinath’s duties and responsibilities 7 changed. Specifically, Dr. Gopinath alleges that after four of his six direct reports quit, 8 “SomaLogic impeded Dr. Gopinath’s attempts to replace these former Palamedrix 9 employees” and “did not provide Dr. Gopinath with the budget to hire a complete and 10 qualified team needed to achieve the Milestones.” (Compl. ¶ 55–56.) He alleges that the 11 “loss of former Palamedrix employees substantially impaired [his] ability to execute his 12 duties and responsibilities” and “limited” his ability to continue his “research and 13 development.” (Id. ¶ 54, 6.) Finally, he alleges that he “was banned from SomaLogic’s 14 offices” (id. ¶ 59.) and asked to work remotely, given vague tasks with unclear 15 instructions, and asked to create an IP paper trail that could create issues for Somalogic, 16 for which [he] would likely be blamed later.” (Id. ¶ 70.) Taking them together and 17 accepting them as true, these allegations plausibly allege that there were changes to Dr. 18 Gopinath’s authority, duties, or responsibilities. 19 Second, SomaLogic contends that even if there were changes, the Complaint does 20 not allege that they were “material and adverse enough to satisfy the Merger Agreement’s 21 ‘Good Reason’ standard.” (Mot. at 11.) As explained above, Dr. Gopinath makes several 22 allegations that, accepted as true, constitute an adverse change in his authority, duties, 23 and responsibilities. And Dr. Gopinath alleges that these changes were “material.” 24 (Compl. ¶ 82.) Whether any of these alleged changes were, in fact, “material” is a 25 question of fact that cannot be decided at the motion to dismiss stage. See Moore v. Mars 26 Petcare US, Inc., 966 F.3d 1007, 1021 (9th Cir. 2020); Chapman v. Skype Inc., 220 27 Cal.App.4th 217 (2013)). 28 1 For the reasons stated above, SomaLogic’s motion to dismiss Dr. Gopinath’s claim 2 for declaratory judgement is DENIED. 3 2. Wrongful Discharge 4 Wrongful termination in violation of public policy is a California common-law 5 tort. Tameny v. Atlantic Richfield Co., 610 P.2d 1330 (Cal. 1980). This tort is “limited to 6 those claims finding support in an important policy based on a statutory or constitutional 7 provision.” Green v. Ralee Eng'g Co., 960 P.2d 1046, 1054 (Cal. 1998). To prove 8 wrongful termination in violation of public policy, a plaintiff must show: “(1) the plaintiff 9 was employed by the defendant, (2) the defendant discharged the plaintiff, (3) a violation 10 of public policy was a motivating reason for the discharge, and (4) the discharge harmed 11 the plaintiff.” Ferrick v. Santa Clara Univ., 181 Cal. Rptr. 3d 68, 75–76 (Cal. Ct. App. 12 2014). 13 a) Discharge 14 SomaLogic first argues that Dr. Gopinath fails to state a claim for wrongful 15 discharge because the Complaint does not allege that Dr. Gopinath was discharged. 16 (Mot. at 12-14.) The Complaint alleges that SomaLogic sent him a “termination letter” 17 which stated that his “employment with SomaLogic has been terminated effective 18 immediately.” (Compl. ¶ 77.) Though it is true that Dr. Gopinath alleges he “resigned” 19 before he received this letter (Compl. ¶¶74–77), this allegation does not warrant dismissal 20 of the wrongful discharge cause of action at this stage. To succeed on this claim, Dr. 21 Gopinath will need to prove that he was, in fact, discharged. If Dr. Gopinath was 22 discharged, that finding would necessarily preclude a successful showing under his 23 declaratory action cause of action. And vice versa (as SomaLogic points out): Dr. 24 Gopinath’s wrongful termination cause of action will fail if he proves that he did, in fact, 25 resign. This inconsistency is permitted under the Federal Rules of Civil Procedure, 26 which allow pleading in the alternative. FED. R. CIV. P. 8(d)(2)–(3); Lacey v. Maricopa 27 Cnty., 693 F.3d 896, 918 (9th Cir. 2012). At this stage, the Court accepts as true the 28 1 allegation that SomaLogic “terminated” Dr. Gopinath; this allegation satisfies the second 2 element of California’s wrongful discharge tort. 3 b) Public Policy 4 Wrongful discharge in violation of public policy requires a plaintiff to demonstrate 5 that the defendant discharged the plaintiff contrary to public policy. See Stevenson v. 6 Superior Ct., 16 Cal. 4th 880, 890 (1997). Wrongful discharge torts typically fall into one 7 of four categories; the last of which being “the employee … (4) reported a statutory 8 violation for the public’s benefit.” Green v. Ralee Engineering Co., 19 Cal. 4th 66, 76 9 (1998). SomaLogic also argues that Dr. Gopinath’s claim for wrongful discharge in 10 violation of public policy should be dismissed because the Complaint does not identify a 11 specific public policy that was allegedly violated when Dr. Gopinath’s employment with 12 SomaLogic ended. (Mot. at 14.) 13 Here, the Complaint sufficiently alleges that Dr. Gopinath’s discharge was 14 contrary to public policy. The Complaint alleges that, on March 13, 2023, Dr. Gopinath 15 “reported Mr. Bowen’s unethical and unlawful conduct to [Defendant’s] Board of 16 Directors” and listed “key issues,” including a significant portion of former Palamedrix 17 employees quitting due to “gender-biased actions.” (Compl. ¶ 67, 70). The same day Dr. 18 Gopinath raised his concerns to the board, his access to SomaLogic’s systems and email 19 account were revoked. (Compl. ¶ 73). On April 10th, 2023, Dr. Gopinath’s employment 20 was terminated. (Compl. ¶ 77). Wrongful discharge based on reporting gender 21 discrimination clearly falls under public policy in California as there are California 22 statutes addressing the issue. California Government Code section 12920 states the 23 California public policy against gender discrimination. Cal. Gov’t Code §12920. 24 California Government Code section 12940 prohibits the discharging of an employee 25 who “opposed” an employer’s gender discrimination. Cal. Gov’t Code §12940(h). Dr. 26 Gopinath’s allegations sufficiently put the SomaLogic on notice of the public policy at 27 issue. 28 1 SomaLogic cites a California state case, Tyco Industries Inc. v. Superior Court, to 2 argue that “general ‘allegation[s] of public policy violation[s] of a statute do not suffice 3 to state a cause of action.’” (Mot. at 14 (citing 164 Cal. App. 3d 148, 159 (1985).) While 4 this may be true at the state level, the SomaLogic presents no evidence that the Federal 5 pleading standards require this level of specificity. Federal courts are governed by the 6 pleading standards of Federal Rules of Civil Procedure Rule 8, which requires “a short 7 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 8 Civ. P. 8(a)(2). “Notice pleading requires the plaintiff to set forth in his complaint claims 9 for relief, not causes of action, statutes, or legal theories.” Alvarez v. Hill, 518 F.3d 1152, 10 1157 (9th Cir. 2008) (emphasis in original). The Court is not aware of any authority that 11 requires a complaint to name a specific statute or provision that the defendant allegedly 12 violated to survive a motion to dismiss. SomaLogic is sufficiently on notice of the public 13 policy allegedly violated—the discharging of an employee due to the employee’s 14 reporting of gender discrimination. Under the federal pleading standards, Dr. Gopinath is 15 not required to state specific authority at this stage. 16 For the reasons stated above, SomaLogic’s motion to dismiss the wrongful 17 discharge in violation of public policy claim is DENIED. 18 3. The “Doe” Defendants 19 SomaLogic argues that Dr. Gopinath’s claims against the “Doe” defendants should 20 be dismissed because bringing claims against “Doe” defendants is not allowed in the 21 Ninth Circuit. (Mot. at 15.) Dr. Gopinath does not address this argument in his 22 opposition and has therefore conceded this point and abandoned the claims. See Qureshi 23 v. Countrywide Home Loans, Inc., No. 09–4198, 2010 WL 841669, at *6 n. 2 (N.D.Cal. 24 Mar. 10, 2010); In re TFT–LCD (Flat Panel) Antitrust Litig., 586 F.Supp.2d 1109, 1131 25 (N.D.Cal.2008). Dr. Gopinath’s claims against the “Doe” defendants are DISMISSED 26 WITHOUT LEAVE TO AMEND. 27 28 1 IV. MOTION TO STRIKE 2 SomaLogic moves to strike Dr. Gopinath’s prayer for exemplary and punitive 3 damages under Rule 12 of the Federal Rules of Civil Procedure. Rule 12(f) authorizes a 4 court to “strike from a pleading … any redundant, immaterial, impertinent, or scandalous 5 matter.” FED. R. CIV. P. 12(f). SomaLogic’s Motion does not identify which of these 6 categories Dr. Gopinath’s prayer falls into, but the Reply states that the prayer is 7 “immaterial” and “impertinent.” (Reply at 9.) In this Circuit, matter is “immaterial” 8 when it has “no essential or important relationship to the claim for relief or the defenses 9 being pled.” Fantasy v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other 10 grounds, 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994); see also Whittlestone, 11 Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). And matter is “impertinent” 12 when it does not “pertain [] to the issues in question.” Id. 13 Based on these definitions and the Court’s holding in Whittlestone, Dr. Gopinath’s 14 prayer for exemplary and punitive damages does not fall into either category. In 15 Whittlestone, the plaintiff’s claim for lost profits and consequential damages was not 16 “immaterial” because whether these damages were recoverable “relate[d] directly to the 17 plaintiff’s underlying claim for relief.” Whittlestone, 618 F.3d at 974. And the plaintiff’s 18 claim for damages was not “impertinent” because whether the damages were recoverable 19 “pertain[ed] directly to the harm being alleged.” Id. Here, too, Dr. Gopinath’s request 20 for exemplary and punitive damages “relates directly” to his underlying claims for relief 21 of wrongful discharge and declaratory relief based on his departure from SomaLogic. 22 And the requested damages “pertain[] directly” to the harm Dr. Gopinath alleges 23 surrounding his departure from the company. 24 SomaLogic argues that Dr. Gopinath’s prayer for punitive and exemplary damages 25 does not “directly relate” to the underlying substantive claim like Whittlestone’s claim for 26 compensatory damages did. (Reply at 7.) Though the Court agrees that the relationship 27 between the requested damages and the underlying claim/harm was stronger in 28 Whittlestone than in this case, it does not read Whittlestone as requiring that any damage 1 request less related than in Whittlestone is immaterial or impertinent. Indeed, to be 2 “immaterial” the matter must have “no [] important relationship to the claim for relief.” 3 Fogerty, 984 F.2d at 1527 (emphasis added); see Whittlestone, 618 F.3d at 974. Here, 4 there is an “important relationship” between Dr. Gopinath’s request and the claim for 5 relief: Dr. Gopinath is asking for punitive damages because of alleged conduct by 6 SomaLogic surrounding his departure from the company. Similarly, under the standard 7 applied in Whittlestone, Dr. Gopinath’s request for exemplary and punitive damages does 8 “pertain” to issues in this case, namely Somalogic’s actions prior to and leading up to Dr. 9 Gopinath’s departure. See Fogerty, 984 F.2d at 1527. 10 In short, the Court follows Whittlestone’s holding that Rule 12(f) “does not 11 authorize district courts to strike claims for damages on the ground that such claims are 12 precluded as a matter of law.” Whittlestone, 618 F.3d at 974-75. Though the precise 13 basis for preclusion in Whittlestone (barred by contract) differs from the basis here 14 (insufficient allegations), that difference does not persuade the Court to depart from 15 Whittlestone. 16 SomaLogic alternatively argues that the Court should construe SomaLogic’s 17 motion to strike as a motion to dismiss under Rule 12(b)(6) and dismiss the prayer for 18 relief for failure to state a claim. (Reply at 7, n. 9.) There is much disagreement in the 19 Ninth Circuit as to whether a motion to dismiss under Rule 12(b)(6) is a proper 20 mechanism to challenge a request for punitive damages. In Whittlestone, the Ninth 21 Circuit held that a Rule 12(f) motion to strike is not a proper procedural mechanism to 22 attack a punitive damages prayer on the grounds that it is precluded as a matter of law. 23 618 F.3d at 974–75. The Court explained that these arguments were “better suited for a 24 Rule 12(b)(6) motion or a Rule 56 motion, not a Rule 12(f) motion.” Id. at 974. 25 Since Whittlestone, conflict has been the law of the Ninth Circuit. Some district 26 courts have read Whittlestone broadly, concluding that a Rule 12(b)(6) motion to dismiss 27 is the “proper vehicle for challenging the sufficiency of a punitive damages claim.” 28 Oushana v. Lowe's Cos., Inc., No. 1:16–cv–01782–AWI–SAB, 2017 WL 5070271, at *2 1 (E.D. Cal. Nov. 3, 2017). Others, including this Court, have read Whittlestone narrowly, 2 concluding that the holding “authoriz[es] a motion to dismiss a damage prayer only 3 where [a] defendant contends the damages are precluded as a matter of law.” Sturm v. 4 Rasmussen, No.: 18-CV-01689-W-BLM, 2019 WL 626167, at *3 (S.D. Cal. Feb. 14, 5 2019) (emphasis added); see also Houston Casualty Co. v. Crum & Forster Insurance 6 Co., 2016 WL 4494444, *3–4 (E.D. Cal. Aug. 25, 2016). And still others, irrespective of 7 whether the defendant challenges punitive damages as a matter of law or sufficiency of 8 the pleadings, have rejected any challenge to punitive damages on a Rule 12(b)(6) motion 9 because it is a remedy and not a claim. See Oppenheimer v. Sw. Airlines Co., 2013 WL 10 3149483, *4 (S.D. Cal. 2013) (“Because punitive damages are but a remedy, and thus 11 neither constitutes a claim nor pertains to whether any claim has been stated, requests for 12 punitive damages provide no basis for dismissal under Fed. R. Civ. P. 12(b)(6).”); Elias 13 v. Navasartian, No. 1:15-CV-01567-LJO-GSA-PC, 2017 WL 1013122, at *4 (E.D. Cal. 14 Feb. 17, 2017); Segura v. City of La Mesa, No. 21CV565-JM-MDD, 2022 WL 17905529, 15 at *11 (S.D. Cal. Dec. 23, 2022). 16 The Court is sympathetic to the latter cases’ interpretation of Rule 12(b)(6) (which 17 by its text authorizes dismissal only for failure to state a “claim” and a request for 18 damages is not a “claim”) but is bound by Whittlestone’s holding that endorsed a Rule 19 12(b)(6) motion as an appropriate means to challenge a damages request. The damages 20 request in Whittlestone arguably pertained more to a “claim” than the prayer for relief in 21 this case—both because the request was located in the body of the complaint and because 22 it was directly tied a specific cause of action—but the reasoning of the case does not 23 suggest that difference would have changed the decision. According to the Ninth Circuit, 24 a Rule 12(b)(6) motion is the means by which a party can “dismiss some or all of a 25 pleading[].” Whittlestone, 618 F.3d at 974. A request for punitive damages, even in a 26 prayer for relief, is inarguably “some” of a pleading. Were the Court to reject this 27 interpretation of Whittlestone defendants would be left with no mechanism to challenge a 28 damage request like the one here since Whittlestone held that Rule 12(f) cannot be used 1 for this purpose. This practical consideration further supports this extension of 2 Whittlestone. Based on this reading of Whittlestone, the Court will consider 3 SomaLogic’s Rule 12(b)(6) motion to dismiss the prayer for exemplary and punitive 4 damages. 5 Under California law, punitive damages are available in connection with 6 negligence claims “where it is proven by clear and convincing evidence that the 7 defendant has been guilty of oppression, fraud, or malice.” Cal. Civ. Code. § 3294. In 8 federal court, “[m]alice, intent, knowledge, and other conditions of a person's mind may 9 be alleged generally.” FED. R. CIV. P. 9(b). Thus, even unsupported and/or conclusory 10 averments of malice or intent are sufficient to support a request for punitive damages in 11 federal court. Rees v. PNC Bank, N.A., 308 F.R.D. 266, 273 (N.D. Cal. 2015); Clark v. 12 Allstate Ins. Co., 106 F.Supp.2d 1016, 1018 (S.D. Cal. 2000). 13 Here, Dr. Gopinath’s allegations do not meet Rule 9’s low pleading threshold. Dr. 14 Gopinath does not allege or argue that SomaLogic acted with fraud (see Opp. at 10-11.), 15 leaving oppression and malice as the only bases supporting punitive damages. As to 16 malice, the Complaint contains no allegations, general or specific, that SomaLogic 17 intended to cause harm to Dr. Gopinath or willfully disregarded his rights. The 18 Complaint describes a complex workplace dispute involving numerous sensitive issues, 19 but the allegations do not plausibly allege that SomaLogic undertook any actions with 20 malicious intent. Additionally, as to oppression, the allegations do not demonstrate 21 “despicable” conduct or “conscious disregard” of Dr. Gopinath’s rights. Cal. Civ. Code § 22 3294(c)(2). 23 For the reasons stated above, the Court construes SomaLogic’s motion to strike as 24 a Rule 12(b)(6) and GRANTS the motion, WITH LEAVE TO AMEND. 25 // 26 / 27 / 28 / I CONCLUSION & ORDER 3 For the reasons stated above, the Court GRANTS IN PART and DENIES IN 4 ||PART SomaLogic’s Motion [Doc. 7]. 5 IT IS SO ORDERED. 6 7 ||Dated: August 21, 2023 \ 8 [pe Lor 9 Hn. 1 omas J. Whelan 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28