The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Before the Court are Defendant's Motion to Dismiss Plaintiff's Defamation Claim (Dkt. 27), and Plaintiff's Motion for Leave to Amend the Complaint (Dkt. 40). In its reply, Defendant also included a request to strike parts of Plaintiff's opposition brief, to which Plaintiff responded. See Sybase Reply, Dkt. 43 at 10-11; Willnerd Resp. to Mot. To Strike, Dkt. 48. The Court has considered the record and pleadings of the parties. For the following reasons the Court will grant Defendant's Motion to Dismiss Plaintiff's Defamation Claim, with leave to amend, and deny Plaintiff's Motion for Leave to Amend the Complaint as to claims regarding an implied-in-fact contract.
Plaintiff Mark Willnerd was employed by Defendant Sybase until his termination on or around July 18, 2008. In his initial and first amended complaints, Willnerd asserts that he was wrongfully discharged in retaliation for his participation in the investigation of an incident involving Willnerd. In that incident, Willnerd unbuckled his belt and held out the waistband of his pants in the presence of Karen Chapin, the human resources manager for Sybase's Boise office, to show that he had lost weight. First Am. Compl., Dkt. 26, ¶ 7. Sybase initiated its investigation of the incident in May of 2008, and advised Willnerd that the incident could be perceived as sexual harassment. Id., ¶ 8. According to Willnerd, as a result of his participation in the investigation, Sybase employees subjected him to retaliation, in the form of a hostile work environment.
In his complaint, Willnerd also contends that Sybase is in breach of his education assistance agreement with Sybase. Further, Willnerd alleges that he was -- and continues to be -- subjected to actionable defamatory statements made by Sybase. Sybase here moves to dismiss Willnerd's defamation claim on ground that it fails to state a claim upon which relief can be granted under the heightened Twombly and Iqbal pleading standards.
Willnerd requested leave to file his first amended complaint, opposed by Sybase, just prior to the deadline for amending his complaint. The Court granted the motion on June 29, 2010. On August 26, 2010, Willnerd requested leave to file a second amended complaint, now before the Court, and which Sybase also opposes. According to Willnerd, this second motion to amend is based on evidence of an implied-in-fact contract, revealed through depositions of Sybase witnesses conducted at the end of June 2010. Willnerd seeks to add claims for breach of the implied-in-fact contract, and violation of the covenant of good faith and fair dealing with respect to the implied-in-fact-contract.
1. Standard Of Law For 12(b)(6) Motions
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While a claim attacked by a Rule 12(b)(6) motion to dismiss "does not need detailed factual allegations," it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. To survive a motion to dismiss, a claim must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id. at 557.
In a more recent case, the Supreme Court identified two "working principles" that underlie Twombly. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Id. "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
A dismissal without leave to amend is improper unless it is beyond doubt that the complaint "could not be saved by any amendment." Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009)(issued 2 months after Iqbal).*fn1 The Ninth Circuit has held that "in dismissals for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether plaintiff will prevail but whether he "is entitled to offer evidence to support the claims." Diaz v. Int'l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007) (citations omitted).
2. Defamation Claim In Willnerd's First Amended Complaint Fails To State A Claim On Which Relief Can Be Granted
In order to prove a defamation action, a plaintiff must establish that the defendant "(1) communicated information concerning the plaintiff to others; (2) that the information was defamatory; and (3) that the plaintiff was damaged because of the communication." Clark v. The Spokesman-Review , 163 P.3d 216, 219 (Idaho 2007). Defendant Sybase here asserts that Willnerd has not pleaded sufficient facts to support the requisite elements for a defamation claim.
In the first amended complaint, Willnerd identifies the communicator of defamatory information only as "Defendant." First Am. Compl., Dkt. 26, ¶¶ 68-75. Willnerd describes the defamatory information as "statements about Plaintiff of a defamatory nature impugning Plaintiff's ability to engage in his profession." Id., ¶ 69. Willnerd further claims that the statements were false, that Sybase knew they were false, and that Willnerd has suffered damages as a result of the statements. Id., ¶¶ 72-75. Willnerd identifies the recipients of the defamatory information as "third parties," and references -- vaguely -- harm to his reputation with former colleagues and in the "general business community." Id., ¶¶ 70-71, 74.
On their face, these allegations exemplify the labels, conclusions, and formulaic recitation of the elements of a cause of action that are expressly forbidden in Twombly and Iqbal. Willnerd's allegations fail to provide adequate and meaningful notice to Sybase of what the claims are, or the grounds on which the claims rest. They are, in short, legal conclusions. Accordingly, dismissal under Rule 12(b)(6) is appropriate. The question is whether Willnerd should be permitted leave to amend his complaint and include ...