Khalid v. Microsoft Corporation

• Court: District Court, W.D. Washington
• Decided: September 4, 2019
• Docket: 2:19-cv-00130
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9

10 ATM SHAFIQUL KHALID, an individual CASE NO. C19-130-RSM 11 and on behalf of similarly situated, XENCARE SOFTWARE, INC., ORDER GRANTING 12 DEFENDANT MICROSOFT Plaintiff, CORPORATION’S MOTION TO 13 DISMISS v. 14 MICROSOFT CORP., a Washington 15 Corporation, and JOHN DOE n, 16 Defendants.

17 I. INTRODUCTION 18 This matter comes before the Court on Defendant Microsoft Corporation (“Microsoft”)’s 19 Motion to Dismiss Plaintiff ATM Shafiqul Khalid’s amended complaint for failure to state a 20 claim. Dkt. #14. Plaintiff opposes the motion in entirety. Dkt. #17. The Court finds oral 21 argument unnecessary to resolve the underlying issues. Having reviewed Defendant’s Motion, 22 Plaintiff’s Response, Defendant’s Reply, and the remainder of the record, the Court GRANTS 23 Defendant’s Motion to Dismiss with leave to amend certain claims as set forth below. 24 1 II. BACKGROUND 2 On December 16, 2011, Plaintiff received a job offer from Microsoft as a Senior Program 3 Manager in its Bing division. Dkt. #7 at ¶ 13. Upon accepting the position, Plaintiff was required 4 by Microsoft recruiter Shannon Carlsen to sign a Microsoft Employee Agreement (the “Employee 5 Agreement”) which included a provision under Section 5 regarding assignment of certain 6 intellectual property rights: 7 5. Inventions. I will promptly and fully disclose to MICROSOFT any and all 8 inventions . . . whether or not patentable (collectively “Inventions”) that I solely or jointly may conceive, develop, reduce to practice or otherwise produce during my 9 employment with MICROSOFT, including those Inventions I contend that MICROSOFT does not own. Subject to the NOTICE below, I agree to grant and I 10 hereby grant, transfer and assign to MICROSOFT or its designee all my rights, title and interest in and to such Inventions. . . . 11

NOTICE: My obligation to assign shall not apply to any Invention that I can 12 establish: a) was developed entirely on my own time without using any equipment, 13 supplies, facilities, or trade secret information owned or supplied to me by Microsoft; 14 b) does not relate (i) directly to the business of MICROSOFT or (ii) to the actual or demonstrably anticipated research or development of MICROSOFT; and 15 c) does not result, in whole or in part, from any work performed by me for MICROSOFT. 16

. . . . In addition to the rights provided to MICROSOFT under paragraph 6 below, 17 as to any Invention complying with 5(a)-(c) above that results in any product, service or development with potential commercial application, MICROSOFT shall 18 be given the right of first refusal to obtain exclusive rights to the Invention and such product, service or development . . . . 19

Dkt. #7-1 at 2-3. Section 6 of the Employee Agreement asked Plaintiff to attach a list “describing 20 all Inventions belonging to me and made by me prior to my employment with MICROSOFT that 21 I wish to have excluded from this Agreement. If no such list is attached, I represent that there are 22 no such Inventions.” Id. at 3. The Employment Agreement further noted on its first page: “If you 23 wish to attach a list of inventions, per paragraph 6, below, please contact your recruiter.” Id. at 2. 24 1 On December 19, 2011, Plaintiff accepted Microsoft’s employment offer and signed the Employment Agreement. Dkt. #7 at ¶ 16. Plaintiff claims that because there was no way to attach 2 a list of inventions to the online agreement pursuant to Section 6, he sent a separate email to Ms. 3 Carlsen attaching an invention exclusion list (the “Exclusion List”) denoting nine patentable items. 4 Id. at ¶¶ 13, 16, 18. This Exclusion List included inventions for a mini-cloud subscription service 5 (“the Mini Cloud”) and a framework to protect computer systems from viruses and spyware (“the 6 Safe and Secure”) that he had filed prior to starting work at Microsoft. Id. at ¶¶ 18-19. At his 7 Microsoft employee orientation program in January 2012, Plaintiff claims he signed a hard copy 8 of the Employee Agreement, submitted his Exclusion List for the second time and noted by hand 9 in the hard copy Employee Agreement that he submitted additional pages. Id. at ¶ 17. 10 Plaintiff worked at Microsoft from January 9, 2012 until February 2015. Id. at ¶¶ 17, 21. 11 Plaintiff claims that during his employment, the United States Patent and Trademark Office issued 12 patents for the Mini Cloud (patent number 8,782,637) and the Safe and Secure (patent number 13 8,286,219) on July 15, 2014 and October 9, 2012, respectively. Id. at ¶¶, 19, 28. Plaintiff further 14 claims that during his employment, he met with various Microsoft executives who declined 15 Plaintiff’s proposals for business models based on his invention ideas. Id. at ¶¶ 32-37. In early 16 February 2015, Microsoft terminated Plaintiff’s employment. Id. at ¶ 38. 17 On February 19, 2015, Microsoft’s in-house counsel notified Plaintiff that he had not listed 18 any inventions under Section 6 of the Employment Agreement. Id. at ¶ 40-41. For that reason, 19 in-house counsel stated, Microsoft retained an assignment right in the patents for the Mini Cloud 20 and the Safe and Secure. Plaintiff claims that Microsoft continued to deny receipt of his Exclusion 21 List, despite Plaintiff’s requests to various employees for hard copies of his signed Employee 22 Agreement. Id. at ¶¶ 42-45. On July 9, 2015, in response to Plaintiff’s correspondence regarding 23 his Mini Cloud and Safe and Secure patents, in-house counsel for Microsoft allegedly offered to 24 1 put together an agreement if Plaintiff “agreed to give Microsoft royalty free access to all present and future patents related to the Mini-cloud systems in exchange for resolving all disputes.” Id. at 2 ¶ 46. Plaintiff claims he declined this offer. 3 On May 27, 2016, Plaintiff received a letter from Microsoft’s outside counsel re-stating 4 Microsoft’s position that Plaintiff had granted Microsoft a “royalty-free license, irrevocable, 5 worldwide license” to those inventions. Id. at ¶ 49 (quoting Dkt. #7-7 at 4). Outside counsel 6 offered to transfer to Plaintiff all of Microsoft’s ownership interest in the Safe and Secure and Mini 7 Cloud patent families in exchange for his granting Microsoft a non-exclusive, royalty-free license 8 to the disputed patent families and fully releasing Microsoft from all claims and liability. Dkt. #7- 9 7 at 4. 10 On January 28, 2019, Plaintiff filed this action against Microsoft. Dkt. #1. In addition to 11 alleging fraud in his particular case, Plaintiff seeks to challenge the general legality of Microsoft’s 12 Employee Agreement on behalf of all Microsoft employees who signed similar agreements with 13 Microsoft. Under Plaintiff’s theory, Microsoft obtains an employee’s patent rights through an 14 overly-broad patent rights assignment provision under Section 5. Dkt. #7 at ¶ 65-67. When the 15 employee leaves Microsoft, Plaintiff claims that Microsoft then disregards or destroys their 16 exclusion list submitted under Section 6, thereby “contaminating” the employee’s patent and 17 requiring the employee to invest tremendous financial resources to clear their patent right through 18 court. Id. at ¶¶ 71-72. As a result, Microsoft employees—who cannot afford to litigate Microsoft, 19 nor want to abandon their patent work—hand over their patent rights from the time they sign their 20 employment agreements yet continue working to develop their patents. Id. at ¶¶ 75, 85-89. 21 Plaintiff claims that Microsoft’s scheme specifically violates laws under antitrust, forced labor, 22 racketeering, civil rights, and fraud. Id. at ¶ 64. 23

24 1 III. DISCUSSION 2 A. Relevant Legal Standards 3 1. Motion to Dismiss 4 In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as 5 true and makes all inferences in the light most favorable to the non-moving party. Baker v. 6 Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted). 7 However, the court is not required to accept as true a “legal conclusion couched as a factual 8 allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)). The complaint “must contain sufficient factual matter, accepted as true, 10 to state a claim to relief that is plausible on its face.” Id. at 678. This requirement is met when 11 the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the 12 defendant is liable for the misconduct alleged.” Id. The complaint need not include detailed 13 allegations, but it must have “more than labels and conclusions, and a formulaic recitation of the 14 elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Absent facial plausibility, 15 a plaintiff’s claims must be dismissed. Id. at 570. 16 2. Pro Se Considerations 17 The Court must also remain mindful that Plaintiff is proceeding pro se. “The Supreme 18 Court has instructed the federal courts to liberally construe the ‘inartful pleading’ of pro se 19 litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citing Boag v. MacDougall, 20 454 U.S. 364, 365 (1982)). Pro se plaintiffs are ultimately held “to less stringent standards than 21 formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, 22 “courts should not have to serve as advocates for pro se litigants.” Noll v. Carlson, 809 F.2d 23 1446, 1448 (9th Cir. 1987). Indeed, “[h]e who proceeds pro se with full knowledge and 24 1 understanding of the risks does so with no greater rights than a litigant represented by a lawyer, and the trial court is under no obligation to ... assist and guide the pro se layman[.]” Jacobsen v. 2 Filler, 790 F.2d 1362, 1365, n. 5 (9th Cir. 1986) (quoting United States v. Pinkey, 548 F.2d 305 3 (10th Cir. 1977). 4 3. Leave to Amend 5 Ordinarily, leave to amend a complaint should be freely given following an order of 6 dismissal, “unless it is absolutely clear that the deficiencies of the complaint could not be cured 7 by amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); see also DeSoto v. Yellow 8 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (“A district court does not err in denying 9 leave to amend where the amendment would be futile).” (citing Reddy v. Litton Indus., Inc., 912 10 F.2d 291, 296 (9th Cir. 1990)). Where claims are dismissed for failure to state a claim on which 11 relief can be granted, permission to file an amended complaint is typically granted. See Fed. R. 12 Civ. P. 15(a) (“[L]eave to amend shall be freely given when justice so requires”). However, 13 where amendment would be futile, a claim is properly dismissed with prejudice. Dumas v. Kipp, 14 90 F.3d 386, 393 (9th Cir. 1996). Johnson v. American Airlines, Inc., 834 F.2d 721, 724 (9th 15 Cir.1987) (“[F]utility includes the inevitability of a claim's defeat on summary judgment.”). 16 Microsoft seeks to dismiss all twelve of Plaintiff’s alleged causes of action. The Court 17 will address each claim in turn. 18 B. Certification of a Class 19 As an initial matter, Plaintiff seeks to certify as a class all Microsoft employees who signed 20 an employment contract with Microsoft similar to the Employee Agreement signed by Plaintiff. 21 Dkt. #7 at ¶¶ 134-141 (presented as “Count 7”). A pro se litigant may not serve as the 22 representative of a class in a class action lawsuit under Fed. R. Civ. P. 23. See Keyter v. Boeing 23 24 1 Co., No. C13-982-RSM, 2013 WL 4458975, at *1 (W.D. Wash. Aug. 16, 2013). Accordingly, the Court will not consider the question of class certification at this time. 2 C. Anti-Trust Claims (Counts 1-2) 3 To survive a motion to dismiss, an antitrust complaint “need only allege sufficient facts 4 from which the court can discern the elements of an injury resulting from an act forbidden by the 5 antitrust laws.” Newman v. Universal Pictures, 813 F.2d 1519, 1522 (9th Cir.1987), cert. denied, 6 486 U.S. 1059 (1988). Plaintiff claims that Microsoft’s actions violate Sections 1 and 2 of the 7 Sherman Act, 15 U.S.C. §§ 1, 2. Under Plaintiff’s theory, Microsoft’s Employee Agreement— 8 which allows patent assignment rights to an employee’s future inventions—enables Microsoft to 9 fix the price of an employee’s patent in its favor and to procure patents at a much cheaper cost 10 while reducing the supply of patents in the marketplace. Dkt. #7 at ¶¶ 93-97. In doing so, Plaintiff 11 argues, Microsoft claims employee’s patents on bad faith or fraud in restraint of trade. Id. at ¶¶ 12 98-100. 13 Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of 14 trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or 15 with foreign nations . . . .” 15 U.S.C. § 1. An antitrust claim under Section 1 requires a plaintiff 16 to plead evidentiary facts which would prove a contract or conspiracy among two or more persons 17 or entities, with the intent to harm or restrain trade, and which actually injures competition. 18 Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008). 19 Plaintiff has not alleged a contract or conspiracy among multiple entities—instead, his 20 complaint only names Microsoft and employees of Microsoft as the bad actors. See Dkt. #7 at ¶¶ 21 92-100. It is well-established that Section 1 of the Sherman Act does not reach “wholly 22 unilateral” conduct by a single entity. Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 23 768 (1984) (citing Albrecht v. Herald Co., 390 U.S. 145, 149 (1968). While Plaintiff argues that 24 1 a contract between an employer and employee of the same company may fall within the scope of Section 1, Dkt. #17 at 11-12, the case law cited does not support this proposition. On the contrary, 2 Copperweld recognized that a company cannot conspire with itself. Id. at 769; see also Freeman 3 v. San Diego Ass'n of Realtors, 322 F.3d 1133, 1147 (9th Cir. 2003) (“The single-entity rule is 4 relevant in a variety of contexts. It applies to a company and its officers, employees and wholly 5 owned subsidiaries.”). Accordingly, Plaintiff’s claim under 15 U.S.C. § 1 is properly dismissed 6 without prejudice. 7 Plaintiff has likewise failed to state a claim under 15 U.S.C. § 2. Section 2 provides that 8 “[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with 9 any other person or persons, to monopolize any part of the trade or commerce among the several 10 States, or with foreign nations . . . [commits a felony].” 15 U.S.C. § 2. To state a claim for 11 monopolization under this provision, a plaintiff must allege that the defendant (1) possessed 12 monopoly power in the relevant markets; (2) willfully acquired or maintained its monopoly power 13 through exclusionary conduct; and (3) caused antitrust injury. Am. Prof’l Testing Serv., Inc. v. 14 Harcourt Brace Jovanovich Legal & Prof’l Publications, Inc., 108 F.3d 1147, 1151 (9th Cir. 15 1997). To state a claim for attempted monopolization, a plaintiff must allege (1) specific intent 16 to control process or destroy competition; (2) predatory or anticompetitive conduct directed at 17 accomplishing that purpose; (3) a dangerous probability of achieving “monopoly power” and (4) 18 causal antitrust injury. Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1432–1433 (9th Cir. 19 1995). 20 Plaintiff alleges both monopolization and attempted monopolization by Microsoft. See 21 Dkt. #7 at ¶ 104. Under either theory, Plaintiff has failed to state a claim under Section 2. 22 Monopoly power is defined as “the power to control prices or exclude competition.” United 23 States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391 (1956). Plaintiff claims that Microsoft 24 1 maintains monopoly power in technology areas such as office productivity software, desktop operating systems, and cloud computing. Id. at ¶ 101. In particular, he states that Microsoft 2 enjoys an “88% market share” in the Desktop and Office365 cloud application market. Dkt. #17 3 at 14. However, “market share standing alone does not automatically equate to monopoly power.” 4 Cost Mgmt. Servs., Inc. v. Washington Nat. Gas Co., 99 F.3d 937, 950 (9th Cir. 1996). Dominant 5 market share alone only supports a finding of market power “if entry barriers are high and 6 competitors are unable to expand their output in response to supracompetitive pricing.” Rebel 7 Oil Co., 51 F.3d at 1438. Here, Plaintiff has provided no market analysis such as barriers to entry 8 or hyper-competitive pricing that inhibits competitors from expanding their output in the cloud 9 application market or the other identified markets. Moreover, Plaintiff has not asserted that 10 Microsoft “willfully” acquired or maintained its monopoly power as opposed to “as a 11 consequence of a superior product, business acumen or historical accident[.]” Sicor Ltd. v. Cetus 12 Corp., 51 F.3d 848, 855 (9th Cir. 1995) (internal citations omitted). Likewise, with respect to his 13 “attempted monopolization” claim, Plaintiff has not alleged that Microsoft acted with a “specific 14 intent” to destroy its competition in the cloud application market—only that Microsoft 15 intentionally sought to acquire its employees’ patents. Id. Microsoft’s alleged intent to acquire 16 employees’ patents does not automatically equate to an intent to monopolize or attempt to 17 monopolize a particular market. 18 Finally, the injuries alleged by Plaintiff are not within the scope of “antitrust injury” 19 contemplated by Section 2. Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of California, 190 F.3d 1051, 20 1055 (9th Cir. 1999) (“[T]he antitrust laws are only intended to preserve competition for the 21 benefit of consumers.”) (emphasis added). Although Plaintiff claims that Microsoft’s conduct 22 injures employees by reducing the value of their patents and preventing them from entering the 23 market, Dkt. #7 at ¶¶ 96-97, individual injury to Microsoft’s employees is not equivalent to injury 24 1 to competition in the marketplace. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977) (“The antitrust laws . . . were enacted for the protection of competition not 2 competitors.”). Plaintiff’s contention that the injury is “the value of option Microsoft didn’t pay,” 3 id. at 13, does not explain how Microsoft’s conduct specifically injured competition within the 4 identified markets nor how that injury ultimately harmed consumer welfare. 5 Plaintiff responds that he is not required to provide a market analysis or allege anti-trust 6 injury because Microsoft’s actions constitute a “per se violation.” Dkt. #17 at 12. Yet “per se” 7 Sherman Act violations only apply to those categories that are “manifestly anticompetitive” such 8 as price-fixing, market division, group boycotts, and tying arrangements. Aydin Corp. v. Loral 9 Corp., 718 F.2d 897, 900 (9th Cir. 1983). Plaintiff argues that Microsoft’s alleged scheme 10 amounts to a “tying arrangement” on the basis that Microsoft combines its illegal patent 11 assignment agreement with thousands of job offers. Dkt. #17 at 15. However, Microsoft’s 12 alleged scheme does not involve “tying”—Microsoft is not conditioning the purchase of one 13 product on the purchase of a separate “tied” product. Eastman Kodak Co. v. Image Tech. Servs., 14 Inc., 504 U.S. 451, 461(1992) (“A tying arrangement is an agreement by a party to sell one 15 product but only on the condition that the buyer also purchases a different (or tied) product, or at 16 least agrees that he will not purchase that product from any other supplier.”) (internal quotations 17 omitted). Without any basis for why Microsoft’s alleged scheme amounts to a “per se” violation 18 of antitrust laws, Plaintiff must provide the required market analysis and alleged antitrust injury 19 to state a claim under Section 2. 20 For the foregoing reasons, Plaintiff’s claims under 15 U.S.C. §§1, 2 (Counts 1 and 2) are 21 properly dismissed without prejudice. 22

24 1 D. Claims for Actual or Attempted Forced Labor (Count 4) Plaintiff also claims that Microsoft’s alleged scheme comprises actual or attempted forced 2 labor. By requiring him to sign the Employment Agreement, Plaintiff argues, Microsoft “created 3 a situation where Plaintiff will continue working on his patent family, add labor to perfect and 4 prosecute his patents, and Defendant(s) Microsoft will get free access to those patents.” Dkt. #7 5 at ¶ 119. Plaintiff argues that this arrangement constitutes exploitation of Plaintiff’s “free labor” 6 that he “would never offer to Defendant(s) Microsoft voluntarily” in violation of the Thirteenth 7 Amendment of the U.S. Constitution and the Trafficking Victims Protection Reauthorization Act 8 (“TVPRA”), 18 U.S.C. § 1589 et seq. Id. at ¶ 120. 9 The Thirteenth Amendment abolished slavery and involuntary servitude in the United 10 11 States. U.S. CONST. art. XIII. The TVPRA was passed by Congress to reach cases of modern-day human trafficking, where victims may be “held in a condition of servitude through nonviolent 12 coercion.” United States v. Dann, 652 F.3d 1160, 1169 (9th Cir. 2011) (quoting Victims of 13 Trafficking and Violence Protection Act of 2000 § 102(b)(13)) (internal quotations omitted). The 14 statute provides a cause of action for individuals who are coerced to work against their will because 15 of serious harm or threat of serious harm—even if that harm is non-physical. See 18 U.S.C. 16 1589(a)-(b). 17 Here, Plaintiff’s claims cannot conceivably amount to “forced labor.” Microsoft allegedly 18 created a “serious threat of claiming the exclusive right to Khalid’s patent” given that “no buyer 19 will buy Khalid’s patent to face litigation with Microsoft.” Dkt. #17 at 16. In doing so, Plaintiff 20 argues, Microsoft has left him three options: (1) continue working to prosecute his patent family; 21 (2) stop working on his patent and destroy his patent portfolio; or (3) wage a costly legal battle 22 against Microsoft. Id. Victims of forced labor are coerced to work against their will because of 23 serious harm or threat of serious harm. Plaintiff has not been coerced to continue working on his 24 1 patents. On the contrary, he wants to continue working on his patent family because of the time and money already invested but may voluntarily choose not to do so because of Microsoft’s alleged 2 scheme that contaminated his patents. By definition of “forced labor,” Plaintiff has not been 3 coerced into working against his will and has therefore failed to state a claim under the Thirteenth 4 Amendment and § 1589. This deficiency cannot be cured through amendment and warrants 5 dismissal of Count 4 with prejudice. 6 E. Racketeering Claims under 18 U.S.C. § 1964 (Counts 3, 5) 7 Plaintiff also brings two claims under the federal Racketeer Influenced and Corrupt 8 Organizations Act (“RICO”). Plaintiff alleges civil RICO violations through extortion and forced 9 labor. See Dkt. #7 at ¶¶ 105-115 (extortion count); ¶¶ 121-125 (forced labor count). The Court 10 has already determined that Plaintiff cannot assert a viable forced labor claim under 18 U.S.C. § 11 1589. For that reason, Plaintiff’s racketeering claim predicated on forced labor, Count 5, is 12 properly dismissed with prejudice. The Court will now address Plaintiff’s remaining RICO claim 13 predicated on extortion. 14 Plaintiff has not alleged sufficient facts to plausibly lead to his asserted RICO claim. To 15 plead a RICO claim under 18 U.S.C. § 1962, a plaintiff must allege: (1) conduct (2) of an 16 enterprise (3) through a pattern (4) of racketeering activity. Howard v. America Online, Inc., 208 17 F.3d 741 (9th Cir. 2000). A “pattern of racketeering activity” requires at least two predicate acts 18 to constitute racketeering activity. See 18 U.S.C. §1961(5). While Plaintiff makes a passing 19 reference to fraud in discussing his claim, Dkt. #7 at ¶ 108, an earlier section of his complaint 20 indicates that he claims extortion as the predicate act for his RICO claim. See id. at ¶¶ 3-4. 21 In support of its RICO claim, Plaintiff alleges two predicate acts: (1) extortion under the 22 Hobbs Act and; (2) extortion in the second degree under the Washington Racketeering Act, RCW 23 9A.56.130. Id. The Hobbs Act defines extortion as “obtaining of property from another, with his 24 1 consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b). The “obtaining” element “requires a showing that a 2 defendant received something of value from the victim of the alleged extortion and that the “thing 3 of value can be exercised, transferred, or sold.” United States v. McFall, 558 F.3d 951, 956 (9th 4 Cir. 2009). Washington law defines “extortion” as “knowingly to obtain or attempt to obtain by 5 threat [the] property or services of the owner . . . .” RCW 9A.56.110. Extortion in the second 6 degree means “extortion by means of a wrongful threat . . . .” RCW 9A.56.130. 7 Plaintiff’s complaint does not allege conduct by Microsoft that constitutes extortion under 8 the Hobbs Act or Washington state law. Plaintiff claims that Microsoft wrongfully acquired or 9 attempted to acquire his patent rights through enforcing its Employment Agreement, but nowhere 10 does he identify any wrongful “threat” or other proscribed misconduct sufficient to plead 11 extortion. On the contrary, the only alleged conduct by Microsoft—phone calls with in-house 12 counsel and a letter to Plaintiff from outside counsel summarizing the terms of the Employee 13 Agreement and describing a proposed agreement—do not amount to threats of violence, force, or 14 fear within the scope of RICO. Plaintiff’s Response only offers the conclusory statement that 15 Microsoft’s enforcement of its “illegal” contract “rose to the level of extortion[.]” See Dkt. #17 16 at 23. He has not explained how particular actions by Microsoft amounted to extortive acts as 17 defined under either the Hobbs Act or RCW 9A.56.130. The complaint therefore fails to 18 sufficiently allege a predicate act. See ICT Law PLLC v. SeaTree PLLC, No. C17-1681-TSZ, 19 2018 WL 4951942, at *3 (W.D. Wash. Oct. 12, 2018) (“Plaintiff cannot rely on mere labels and 20 conclusions to support its RICO theory”). 21 Furthermore, Plaintiff has failed to adequately allege an “enterprise” under RICO. 22 Plaintiff claims that several entities within and outside of Microsoft constitute either an enterprise 23 or an associate-in-fact enterprise under RICO: Microsoft itself, Microsoft’s offshore operations, 24 1 Microsoft’s intellectual property licensing program, associates such as Appleby law firm, and other “partners and vendors” that receive benefits through an intellectual property-sharing 2 partnership. Dkt. #7 at ¶¶ 107-111. Vague terms such as “offshore operations,” “associates” and 3 “partners and vendors,” see Dkt. #7 at ¶¶ 108-111, do not provide Microsoft or the Court with 4 sufficient notice of the individuals or entities, inside or outside of Microsoft, that form the alleged 5 “enterprise” engaged in racketeering. Plaintiff has also not articulated a common purpose of the 6 alleged “enterprises” beyond a typical business relationship. Eclectic Properties E., LLC v. 7 Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014) (“To show the existence of an 8 enterprise under the second element, plaintiffs must plead that the enterprise has (A) a common 9 purpose, (B) a structure or organization, and (C) longevity necessary to accomplish the purpose.”) 10 (citing Boyle v. United States, 556 U.S. 938, 946 (2009)). Instead, Plaintiff alleges that these 11 various entities enjoy mutual benefits through their partnerships and explains how money flows 12 between the various entities. See Dkt. #7 at ¶¶ 105-115. These allegations do not set forth a 13 viable RICO claim. 14 Accordingly, Plaintiff’s RICO claims predicated on extortion, Count 3, are dismissed 15 without prejudice for failure to state a claim. 16 F. Civil Rights Violations (Counts 6, 12) 17 Plaintiff also alleges violations of his civil rights under 42 U.S.C. § 1983 and § 1985. 18 Specifically, Plaintiff claims that Microsoft received billions of dollars from the federal 19 government in the form of tax credits for its research and development expenses that paid 20 Plaintiff’s salary. Dkt. #7 at ¶ 179. By using this federal benefit to pay his salary, Plaintiff argues, 21 Microsoft “acted under the color of state [law] while infringing on Khalid’s constitutional rights” 22 in violation of 42 U.S.C. § 1983. Plaintiff’s claim under Section 1985 follows a similar logic that 23 receipt of the federal benefit equates to acting under the color of state law. Id. at ¶ 133. The § 24 1 1985 claim also adds Plaintiff’s contention that Microsoft employed multiple employees, recruiters, and attorneys who conspired to have Plaintiff sign an overbroad employee agreement 2 through the false pretense of an “inventive disclosure,” thereby engaging in fraud and conspiracy 3 giving rise to a violation of 42 U.S.C. § 1985. Id. at ¶¶ 127-129. 4 Even if Plaintiff timely filed these claims within the three-year statute of limitations 5 period, his allegations fail to satisfy the required elements of civil rights claims under §§ 1983 6 and 1985. A claim under § 1983 requires that a person or entity be acting “under color of any 7 statute, ordinance, regulation, custom, or usage, of any State or Territory” when depriving a party 8 of his rights, privileges or immunities. 42 U.S.C. § 1983. “Only in rare circumstances” will a 9 court view a private party as a state actor for § 1983 purposes. Sutton v. Providence St. Joseph 10 Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). For private conduct to constitute governmental 11 action, there must be a “close nexus between the State and the challenged action that seemingly 12 private behavior may be treated as that of the State itself.” Brentwood Acad. v. Tenn. Secondary 13 Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (internal quotations omitted). 14 Here, Microsoft using government tax credits to pay employees’ salaries cannot 15 conceivably establish the “close nexus” necessary for Microsoft to comprise a state actor. Given 16 that the federal government provided these tax credits, see Dkt. #7 at ¶ 179, Plaintiff fails to 17 explain how the credits create any nexus between Microsoft and a state actor as required under § 18 1983. Morse v. N. Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997) (“[B]y its very 19 terms, § 1983 precludes liability in federal government actors.”). Moreover, merely receiving tax 20 credits does not intertwine Microsoft and the public sector to the point where Microsoft’s actions 21 are effectively the government’s. Even in cases where the government has heavily funded a 22 private entity, mere funding is not sufficient to create a “close nexus”—the government must 23 somehow profit from the private actor’s violations. See Rendell-Baker v. Kohn, 457 U.S. 830, 24 1 841–42 (1982) (Heavily financed and regulated school not a state actor absent a showing that government profited from school’s alleged constitutional violations). None of Plaintiff’s 2 allegations explain how Microsoft’s actions constitute “state action,” nor is there any conceivable 3 basis for why they might be attributed to a state actor. Plaintiff’s Response does not address this 4 issue. See Dkt. #17 at 17-18. The Court finds these deficiencies cannot be remedied through 5 amendment. Accordingly, Plaintiff’s § 1983 claims are properly dismissed with prejudice. 6 Plaintiff has likewise failed to state a claim under § 1985. Plaintiff alleges that personnel 7 within Microsoft conspired to acquire employees’ patents using the “false pretense” of 8 employment agreements, which would entice employees to submit an Exclusion List ultimately 9 disregarded by Microsoft. To state a cause of action under § 1985, Plaintiff must show that (1) 10 “some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind 11 the conspirators' action,” and (2) the conspiracy was “aimed at interfering with rights that are 12 protected against private, as well as official encroachment.” Bray v. Alexandria Women’s Health 13 Clinic, 506 U.S. 263, 267–68 (1993) (internal citations omitted). 14 Plaintiff’s claims provide no basis on which the Court may conclude that Microsoft’s 15 actions were motivated racial or class-based discriminatory animus. In fact, Plaintiff’s complaint 16 is devoid of any reference to racial or class-based discriminatory animus. See generally Dkt. #7. 17 Instead, Plaintiff’s allegations suggest that Microsoft’s actions harm certain “types” of 18 individuals: (i) employees engaged in creative services; (ii) employees with inventions subject to 19 disclosure under the exclusion list; and/or (iii) employees aged forty and older, since older 20 employees “likely will have more patents than the younger counterpart simply because inventions 21 takes [sic] years to build.” Dkt. #7 at ¶ 129. Plaintiff fails to explain how these groups of 22 individuals constitute a “class” protected under § 1985. Moreover, his complaint makes clear that 23 these groups of people are harmed simply because they have more patents for Microsoft to 24 1 claim—they are not targeted by Microsoft because of a specific animus against (i) creative people; (ii) people who attached inventions under the exclusion list; or (iii) employees over the age of 2 forty. 3 In his Response, Plaintiff argues that he may assert an equal protection claim against 4 Microsoft as a “class of one.” Dkt. #17 at 19 (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 5 564 (2000)). However, Olech extended the Equal Protection Clause to instances where a plaintiff 6 claims he was intentionally treated differently from others similarly situated and there was no 7 rational basis for the disparate treatment. Nothing in Plaintiff’s complaint supports a disparate 8 treatment claim—on the contrary, he seeks certification of a class on the basis that his 9 mistreatment is neither unique nor exceptional, but part of a broader patent-grabbing scheme by 10 Microsoft against all of its employees with patents. See Dkt. #7 at ¶¶ 134-141. This deficiency 11 makes amendment futile. See Cordell v. Greater Columbia Reg’l Support Network, No. CV-05- 12 5119, 2006 WL 2354342, at *4 (E.D. Wash. Aug. 15, 2006) (Dismissing § 1985 claim with 13 prejudice where Plaintiff “failed to make even the barest of allegations that the defendants’ actions 14 . . . are the offspring of a ‘class-based invidiously discriminatory animus.’”) Accordingly, 15 Plaintiff’s § 1985 claim is properly dismissed with prejudice. 16 G. Fraud (Count 8) 17 Plaintiff alleges that Microsoft either attempted or committed fraud by representing that 18 employees may provide a written exclusion list of prior inventions and later informing Plaintiff 19 that it could not find his Exclusion List. Dkt. #7 at ¶¶ 142-144. 20 Plaintiff’s fraud claim is barred by the statute of limitations. In the state of Washington, 21 an action claiming fraud must be commenced within three years upon “discovery by the aggrieved 22 party of the facts constituting the fraud;” RCW 4.16.080(4). However, where a literal application 23 of the statute of limitations “could result in grave injustice,” courts apply a discovery rule of 24 1 accrual. David v. Smith, No. C19-898 MJP, 2019 WL 3842661, at *2 (W.D. Wash. Aug. 15, 2019) (quoting 1000 Virginia Ltd. P’ship v. Vertecs Corp., 158 Wn. 2d 566, 575 (2006), as 2 corrected (Nov. 15, 2006) (internal quotations omitted). Under this discovery rule, the cause of 3 action accrues either “when the plaintiff discovers, or in the reasonable exercise of diligence 4 should discover, the elements of the cause of action.” Id. (emphasis added). 5 Even if this Court liberally applies the discovery rule, Plaintiff’s claims are untimely. 6 Plaintiff asserts that May 27, 2016 was the first time that Microsoft provided a signed letter from 7 outside counsel denying that Plaintiff had ever provided a list of inventions made by or belonging 8 to him. Dkt. #7 at ¶ 49; see also Dkt. #17 at 20. Yet Plaintiff’s complaint makes clear that by 9 July 9, 2015 at the latest, he was aware of Microsoft’s intention to deny existence of the Exclusion 10 List. Plaintiff was first provided notice of Microsoft’s alleged fraud as early as February 19, 2015 11 when Microsoft’s in-house patent attorney notified him that “no inventions were listed by you 12 [Mr. Khalid] for exclusion.” Dkt. #7 at ¶ 40 (citing Dkt. #7-6 at 2). Over the next several months, 13 Plaintiff continued to email Microsoft’s in-house counsel regarding the Employment Agreement, 14 including requests on April 14, 2015 and April 16, 2015 that Microsoft provide Plaintiff with a 15 copy of the signed Employment Agreement. Id. at ¶ 43. Three months later, on July 9, 2015, 16 Plaintiff claims that he declined an offer by Microsoft’s in-house counsel to put together an 17 agreement granting Microsoft a royalty-free license to the Mini-Cloud systems in exchange for 18 resolving all disputes. Id. at ¶ 46. By this point, at the very latest, Microsoft had clearly indicated 19 to Plaintiff its intention to deny the existence of the Exclusion List. Because Plaintiff did not file 20 this action until January 28, 2019, the three-year limitations period had already expired. 21 Although the interests of justice require the pleadings of a pro se plaintiff to be liberally 22 construed and held to less stringent standards, Eldridge, 832 F.2d at 1137, such interests also 23 require plaintiffs to demonstrate diligence in pursuing their claims. David, 2019 WL 3842661, at 24 1 *3. Here, Plaintiff was aware of the fraud nearly four years before he filed his complaint in January 2019. Moreover, Plaintiff has provided no reason for the Court to further toll his fraud 2 claim. He contends that Microsoft “put no evidence on record that by February 2015, Khalid had 3 a viable fraud claim”, Dkt. #17 at 21, but the limitations period starts to run once the plaintiff 4 “discovers the salient facts underlying the elements of the cause of action”—not when the plaintiff 5 “learns that he or she has a legal cause of action . . . .” David, 2019 WL 3842661, at *2. 6 Microsoft’s letter dated May 27, 2016 simply reiterated the company’s previously-stated position 7 that no Exclusion List existed. Dkt. #7 at ¶ 49 (citing Dkt. #7-7 at 2). The fact that this May 27, 8 2016 notice took the form of a signed letter from outside counsel—as opposed to an email from 9 in-house counsel—added no facts to Plaintiff’s fraud claim from what he already knew on 10 February 19, 2015. Because he has not demonstrated diligence in pursuing his claims, or that he 11 was not at fault for the delay, his fraud claims are time-barred and dismissed with prejudice. 12 H. Declaratory Relief (Counts 9, 10, 11) 13 Finally, Plaintiff seeks three declaratory judgments: (1) that the “right of first refusal” 14 clause in Section 5 of the Employee Agreement violates RCW 49.44.140(1); (2) that the 15 Employee Agreement violates the due process clause of the Fourteenth Amendment; and (3) that 16 Microsoft engaged in “inequitable conduct” through its ambiguous and indefinite patent 17 assignment provision. As explained above with respect to Plaintiff’s § 1983 claim, the Fourteenth 18 Amendment only guards against state action—not private action. See Jackson v. Metropolitan, 19 419 U.S. 345, 353 (1974). In his response, Plaintiff misapplies the holding in Tsao v. Desert 20 Palace, Inc. See Dkt. #17 at 22 (citing 698 F.3d 1128, 1138 (9th Cir. 2012)) (affirming private 21 entities may be sued under § 1983). Tsao in no way removed the fundamental requirement that 22 a private party’s actions somehow be attributable to the state. See id. at 1139 (“§ 1983 makes 23 liable only those who act under color of state law”) (internal quotations omitted). Because 24 1 Plaintiff’s complaint fails to allege a viable Fourteenth Amendment claim, Plaintiff’s claim for declaratory judgment under Count 10 is properly dismissed with prejudice. The Court will 2 address the remaining two claims regarding RCW 49.44.140(1) and the general inequitable 3 conduct of Microsoft. 4 The Declaratory Judgment Act (“DJA”) authorizes a district court to “declare the rights 5 and other legal relations of any interested party seeking such declaration” when there is an “actual 6 controversy.” 28 U.S.C. § 2201(a). To have subject matter jurisdiction over a claim brought 7 under the DJA, there must be an “actual controversy.” See Teva Pharms. USA, Inc. v. Novartis 8 Pharms. Corp., 482 F.3d 1330, 1338. An “actual controversy” under the DJA is the same as an 9 Article III case or controversy. See id. A party bringing a declaratory judgment claim must 10 therefore show “that under ‘all the circumstances,’ there is an actual or imminent injury that was 11 caused by the opposing party, is redressable by judicial action, and is of ‘sufficient immediacy 12 and reality to warrant the issuance of a declaratory judgment.’” Multimedia Patent Tr. v. 13 Microsoft Corp., 525 F. Supp. 2d 1200, 1218 (S.D. Cal. 2007) (internal citation omitted). Even 14 if an actual controversy exists, the Court may decline to issue a declaratory judgment. 15 Weyerhaeuser Co. v. Novae Syndicate 2007, No. C18-0585-JLR, 2019 WL 3287893, at *1 (W.D. 16 Wash. July 22, 2019) (“Even where the Article III requirement of an actual controversy is 17 satisfied, the district court’s exercise of its declaratory judgment authority is discretionary.”) 18 (Citing Gov't Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 1222-23 (9th Cir. 1998)). 19 Plaintiffs remaining claims for declaratory relief are properly dismissed without prejudice. 20 First, Plaintiff’s request for declaratory judgment that the “right of first refusal” clause in Section 21 5 violates RCW 49.44.140 is not ripe for adjudication. This clause provides as follows: 22 In addition to the rights provided to MICROSOFT under paragraph 6 below, as to 23 any Invention complying with 5(a)-(c) above that results in any product, service or development with potential commercial application, MICROSOFT shall be given 24 1 the right of first refusal to obtain exclusive rights to the Invention and such product, service or development . . . .

2 Dkt. #7-1 at 2-3. The Court agrees with Microsoft that Plaintiff has not alleged an actual case or 3 controversy arising from Microsoft attempting to enforce the “right of first refusal” clause. See 4 Dkt. #14 at 21. Instead, Plaintiff’s dispute with Microsoft appears to arise from parties’ 5 disagreement over whether he submitted an Exclusion List under Section 6 of the Employee 6 Agreement. Id. at ¶ 151; see also id. at ¶¶ 182-199 (damages sought by Plaintiff). Because 7 Plaintiff’s facial challenge to the legality of the “right of first refusal” clause under Section 5 is 8 not tied to any actual dispute between the parties and does not rest an any concrete injury that is 9 cognizable, it is not ripe for adjudication. See Lee v. Capital One Bank, No. C07-4599-MHP, 10 2008 WL 648177, at *4 (N.D. Cal. Mar. 5, 2008) (“Plaintiff's claim does not present a “Case” or 11 “Controversy” because the allegedly unconscionable provisions in the Agreement have not been 12 implicated in an actual dispute.”); see also Lee v. Am. Express Travel Related Servs., No. C 07- 13 04765-CRB, 2007 WL 4287557, at *5 (N.D. Cal. Dec. 6, 2007) (Denying standing where 14 plaintiffs claimed injury by mere existence of unconscionable terms in contract, but terms not 15 implicated in actual dispute). 16 Finally, Plaintiff’s request for declaratory judgment that Microsoft engaged in 17 “inequitable conduct” is also unripe for adjudication. The broad and vague declaratory relief 18 sought by Plaintiff does not “admit of specific relief through a decree of a conclusive character, 19 as distinguished from an opinion advising what the law would be upon a hypothetical set of facts.” 20 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–41 (1937) (internal quotations omitted). Even 21 if the Court narrows the broad language of Plaintiff’s request to apply to Microsoft’s use and 22 enforcement of its Employment Agreement, Plaintiff has failed to sufficiently allege an actual 23 dispute suitable for declaratory relief for the same reasons set forth above. On amendment, 24 1 Plaintiff’s complaint must request specific relief from the Court based on his own dispute with Microsoft—not broad relief based on hypothetical injuries to other Microsoft employees. 2 I. Leave to Amend 3 Plaintiff shall be granted leave to amend his complaint so that he may be afforded an 4 additional opportunity to plead a viable claim under the Sherman Act (Counts 1, 2), RICO (Count 5 3) and/or declaratory relief under Counts 9 and 11. The claims shall be made on his own behalf 6 and not on behalf of a putative class of plaintiffs. The amended complaint shall contain a concise 7 statement of his claims setting forth the specific facts giving rise to a plausible inference that 8 Microsoft is liable for the alleged violations. Plaintiff shall file an amended complaint within 9 thirty (30) days from the date of this Order. Failure to comply with this Order will result in 10 dismissal of the action. 11 IV. CONCLUSION 12 Having reviewed Defendant’s Motion, Plaintiff’s Response, Defendant’s Reply, and the 13 remainder of the record, it is hereby ORDERED: 14 (1) Defendant’s Motion to Dismiss, Dkt. #14, is GRANTED; 15 (2) Counts 1 and 2 (Sherman Act claims) and Count 3 (RICO claim for extortion) are 16 DISMISSED without prejudice and with leave to amend; 17 (3) Count 4 (forced labor), Count 5 (RICO claim for forced labor), Counts 6 and 12 (civil 18 rights claims), and Count 8 (fraud) are DISMISSED with prejudice; 19 (4) Plaintiff’s claim for declaratory relief on Fourteenth Amendment violation (Count 10) 20 is DISMISSED with prejudice. Plaintiff’s remaining claims for declaratory relief (Counts 9 and 21 11) are DISMISSED without prejudice and with leave to amend; 22 (5) Plaintiff is ORDERED to file a Second Amended Complaint within thirty (30) days of 23 this Order for Counts 1–3, 9 and 11. 24 1 DATED this 4 day of September, 2019. 2 3 A 4 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 5

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