WILLNERD v. SYBASE, INC.

Filing 71

MEMORANDUM DECISION AND ORDER granting 27 Motion to Dismiss; granting in part and denying in part 40 Motion for Leave to File; denying 43 Motion to Strike (filed wihtin last section of Reply). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

Willnerd v. Sybase, Inc.

Doc. 71

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO

M A R K WILLNERD, an individual, C a s e No. 1:09-cv-00500-BLW Plaintiff, v. S Y B A S E , INC., a Delaware corporation, Defendant. M E M O R A N D U M DECISION A N D ORDER

B e f o re the Court are Defendant's Motion to Dismiss Plaintiff's Defamation Claim (D k t. 27), and Plaintiff's Motion for Leave to Amend the Complaint (Dkt. 40). In its re p ly, Defendant also included a request to strike parts of Plaintiff's opposition brief, to w h ic h Plaintiff responded. See Sybase Reply, Dkt. 43 at 10-11; Willnerd Resp. to Mot. To S tr ik e , Dkt. 48. The Court has considered the record and pleadings of the parties. For the f o llo w in g reasons the Court will grant Defendant's Motion to Dismiss Plaintiff's D e f a m a tio n Claim, with leave to amend, and deny Plaintiff's Motion for Leave to Amend th e Complaint as to claims regarding an implied-in-fact contract. BACKGROUND P la in tif f Mark Willnerd was employed by Defendant Sybase until his termination o n or around July 18, 2008. In his initial and first amended complaints, Willnerd asserts
MEMORANDUM DECISION AND ORDER - 1

Dockets.Justia.com

that he was wrongfully discharged in retaliation for his participation in the investigation o f an incident involving Willnerd. In that incident, Willnerd unbuckled his belt and held o u t the waistband of his pants in the presence of Karen Chapin, the human resources m a n a g e r for Sybase's Boise office, to show that he had lost weight. First Am. Compl., D k t. 26, ¶ 7. Sybase initiated its investigation of the incident in May of 2008, and advised W illn e rd 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 s u b je c te d 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 a s s is ta n c e agreement with Sybase. Further, Willnerd alleges that he was ­ and continues to be ­ subjected to actionable defamatory statements made by Sybase. Sybase here m o v e s to dismiss Willnerd's defamation claim on ground that it fails to state a claim upon w h ic h relief can be granted under the heightened Twombly and Iqbal pleading standards. W illn e rd requested leave to file his first amended complaint, opposed by Sybase, ju s t prior to the deadline for amending his complaint. The Court granted the motion on J u n e 29, 2010. On August 26, 2010, Willnerd requested leave to file a second amended c o m p la in t, now before the Court, and which Sybase also opposes. According to Willnerd, th is second motion to amend is based on evidence of an implied-in-fact contract, revealed th ro u g h depositions of Sybase witnesses conducted at the end of June 2010. Willnerd s e e k s to add claims for breach of the implied-in-fact contract, and violation of the

MEMORANDUM DECISION AND ORDER - 2

covenant of good faith and fair dealing with respect to the implied-in-fact-contract. A N A L Y S IS 1. S ta n d a r d Of Law For 12(b)(6) Motions F e d e ra l Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement o f the claim showing that the pleader is entitled to relief," in order to "give the defendant f a ir notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic C o r p . v. Twombly, 550 U.S. 544, 555 (2007). While a claim attacked by a Rule 12(b)(6) m o tio n to dismiss "does not need detailed factual allegations," it must set forth "more th a n labels and conclusions, and a formulaic recitation of the elements of a cause of a c tio n will not do." Id. To survive a motion to dismiss, a claim must contain sufficient f a c tu a l matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. a t 570. A claim has facial plausibility when the plaintiff pleads factual content that a llo w s the court to draw the reasonable inference that the defendant is liable for the m isc o n d u c t alleged. Id. at 556. The plausibility standard is not akin to a "probability re q u ire m e n t," but it asks for more than a sheer possibility that a defendant has acted u n la w f u lly. Id. Where a complaint pleads facts that are "merely consistent with" a d e f e n d a n t's liability, it "stops short of the line between possibility and plausibility of `e n title m e n t to relief.' " Id. at 557. In a more recent case, the Supreme Court identified two "working principles" that u n d e rlie Twombly. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). First, the tenet

MEMORANDUM DECISION AND ORDER - 3

that a court must accept as true all of the allegations contained in a complaint is in a p p lic a b le to legal conclusions. Id. "Rule 8 marks a notable and generous departure f ro m the hyper-technical, code-pleading regime of a prior era, but it does not unlock the d o o rs 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 d is m is s . Id. "Determining whether a complaint states a plausible claim for relief will . . . b e a context-specific task that requires the reviewing court to draw on its judicial e x p e rie n c e and common sense." Id. A dismissal without leave to amend is improper unless it is beyond doubt that the c o m p la in t "could not be saved by any amendment." Harris v. Amgen, Inc., 573 F.3d 728, 7 3 7 (9th Cir. 2009)(issued 2 months after Iqbal).1 The Ninth Circuit has held that "in d is m is s a ls for failure to state a claim, a district court should grant leave to amend even if n o request to amend the pleading was made, unless it determines that the pleading could n o t possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe, Inc. v. N o r th e r n California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The is su e is not whether plaintiff will prevail but whether he "is entitled to offer evidence to s u p p o rt the claims." Diaz v. Int'l Longshore and Warehouse Union, Local 13, 474 F.3d

The Court has some concern about the continued vitality of the liberal amendment policy adopted in Harris v. Amgen, based as it is on language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), suggesting that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim. . .." Given Twombly and Iqbal's rejection of the liberal pleading standards adopted by Conley, it is uncertain whether the language in Harris v. Amgen has much of a life expectancy. MEMORANDUM DECISION AND ORDER - 4

1

1202, 1205 (9th Cir. 2007) (citations omitted). 2. D e fa m a tio n Claim In Willnerd's First Amended Complaint Fails To State A C la im 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
s u f f ic ie n t facts to support the requisite elements for a defamation claim. In the first amended complaint, Willnerd identifies the communicator of d e f a m a to ry information only as "Defendant." First Am. Compl., Dkt. 26, ¶¶ 68-75. Willnerd describes the defamatory information as "statements about Plaintiff of a d e f a m a to ry 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, a n d 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 re f e re n c e s ­ vaguely ­ harm to his reputation with former colleagues and in the "general b u s in e s s community." Id., ¶¶ 70-71, 74. O n their face, these allegations exemplify the labels, conclusions, and formulaic re c ita tio n of the elements of a cause of action that are expressly forbidden in Twombly a n d Iqbal. Willnerd's allegations fail to provide adequate and meaningful notice to
MEMORANDUM DECISION AND ORDER - 5

Sybase of what the claims are, or the grounds on which the claims rest. They are, in s h o rt, legal conclusions. Accordingly, dismissal under Rule 12(b)(6) is appropriate. The q u e s tio n is whether Willnerd should be permitted leave to amend his complaint and in c lu d e allegations needed to support his defamation claim. The Court will address this is su e in its analysis of Willnerd's motion to amend. 3. S ta n d a r d Of Law For Motion To Amend T h e Court has discretion in deciding whether to grant leave to amend, on c o n s id e ra tio n of "the presence of any of four factors: bad faith, undue delay, prejudice to th e opposing party, and/or futility." Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (c ita tio n s omitted). Generally, this determination should be made "with all inferences in f a v o r of granting the motion." William O. Gilley Enterprises, Inc. v. Atlantic Richfield C o ., 588 F.3d 659, 669 n. 8 (9th Cir. 2009) (citation omitted). However, the Ninth Circuit h a s recognized the district court's interest in the efficient management of its docket and a v o id a n c e of unwarranted delays. See World Wide Rush, LLC v. City of Los Angeles, 606 F .3 d 676, 690 (9th Cir. 2010); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9 th Cir. 1992). Where the motion is filed after the court's case management deadline to a m e n d , as in this case, the court applies Federal Rule of Civil Procedure 16(b), rather than th e less restrictive 15(a). Johnson, 975 F.2d 604. Under Rule 16(b), the plaintiff must a ls o demonstrate good cause to amend. Id. at 609 The court's inquiry into "good cause" c o n s id e rs the moving party's diligence in seeking the amendment. Id.

MEMORANDUM DECISION AND ORDER - 6

4.

L e a v e To Amend Willnerd's Defamation Claim Is Appropriate In opposing Willnerd's motion to amend, Sybase argues the presence of undue

d e la y, futility, and lack of good cause. Sybase also points to Willnerd's prior request to a m e n d . Where the plaintiff has previously amended his complaint, as here, the district c o u rt has broader discretion to deny leave. World Wide Rush, 606 F.3d at 690. The Ninth C irc u it has approved of a district court's discretion to deny leave to amend where a p la in tif f was already granted such leave several months after the deadline and over a year in to litigation, and where plaintiff was apparently aware of the possibility of the claim at is su e . Id. In comparison to the plaintiff in World Wide Rush, Willnerd has not been similarly d ila to ry here. It appears that he pursued and was granted leave to file his first amended c o m p la in t on the deadline. Also, it does not appear that Willnerd knew of the facts s u p p o rtin g his defamation claim but has simply failed to assert them. To the contrary, the re c o rd supports that Willnerd has, and continues to be, in pursuit of evidence concerning h is defamation claim through discovery. The issue is whether, if permitted to amend, W illn e rd would be able to assert allegations necessary to support his defamation claim. A. R e c e n t And Ongoing Discovery May Have Revealed Facts Necessary For D e fa m a tio n Claim

L e a v e to amend is unnecessary where amendment would be futile. Gardner, et al. v . Martino, et al., 563 F.3d 981, 990 (9th Cir. 2009). As discussed above, Willnerd's d e f a m a tio n claim requires the addition of many key allegations in order for Willnerd to
MEMORANDUM DECISION AND ORDER - 7

state a claim on which relief can be granted. In his first amended complaint, Willnerd d o e s not sufficiently identify Sybase as the publisher of the alleged defamation, nor does h e specify the substance of the defamation or the identity of the `others' receiving the d e f a m a to ry information. W illn e rd provides that, if leave to amend is granted, his second amended c o m p la in t would identify Karen Chapin, Sybase's director of human resources, among o th e rs, as a publisher of defamatory information. Willnerd Opp'n, Dkt. 37 at 5. Willnerd f u rth e r indicates his intention to allege that Stefanie Thiel ­ a Sybase human resources m a n a g e r, and Brad Schmidt ­ a Sybase project engineer, discussed the fact of Willnerd's te rm in a tio n , and thereby disclosed false information regarding Willnerd's termination to n o n -m a n a g e m e n t, non-human resources employees of Sybase. Id.2 W illn e rd states that he expects to learn additional facts for an amended defamation c la im through outstanding discovery. The Court is aware that the parties have been e n g a g e d in numerous discovery disputes that have slowed the litigation. The Court is also a w a re that many depositions have been scheduled and/or occurred as the parties have s im u lta n e o u s ly attempted to resolve discovery disputes with some assistance from the C o u rt. Based on the information in the record, and the Court's understanding of the p a rtie s ' efforts to resolve discovery disputes through the Court's prescribed process, the

Also in his response brief, Willnerd identifies a company-wide e-mail that purportedly defamed Willnerd. However, since Willnerd's response brief was filed, he has withdrawn that portion of his defamation claim. See Keller Aff., Ex. B, Dkt. 44 at 8. MEMORANDUM DECISION AND ORDER - 8

2

Court finds that the parties have proceeded diligently and will assume that they have acted in good faith. Given the circumstances, some flexibility in extending its case m a n a g e m e n t schedule ­ although in limited fashion ­ is warranted. The Court finds that a d d itio n a l allegations necessary for Willnerd's defamation claim may be learned through re c e n tly completed, or soon to be completed discovery. B. P r o p o s e d Allegations Need Not Be Authenticated

In its reply brief, Sybase moved to strike factual assertions in Willnerd's response b rie f , as not properly authenticated by affidavit. Sybase Reply, Dkt. 43 at 10. The Court n o te s that the assertions at issue are allegations, based on information discovered since th e filing of the first amended complaint, that would be included in an amended c o m p la in t if Willnerd's motion to amend is granted. The proposed allegations are not o f f e re d or considered as facts in substantive support of Willnerd's motion to amend. Instead, the Court views the allegations as necessary to permit it to determine whether f u rth e r amendment would be futile; in such analysis, the Court assumes the facts as a lle g e d to be true. C. E v id e n c e Of Malice May Defeat Common Interest Privilege

W illn e rd contends, in his first amended complaint and pleadings, that the persons to whom the alleged defamation was communicated were ­ or at least included ­ Sybase e m p lo ye e s . Sybase argues that, if the alleged receivers of information are Sybase e m p lo ye e s , then Sybase is protected from liability by a common interest privilege. In

MEMORANDUM DECISION AND ORDER - 9

Idaho, where an alleged defamatory statement is made to one sharing a common interest w ith the publisher of the statement, the publisher is protected from liability by a c o n d itio n a l privilege. Barlow v. Int'l Harvester Co., 522 P.2d 1102, 1112-13 (Idaho 1 9 7 4 ). The privilege may be lost where the defamatory material is published with express m a lic e . Id. at 1113. Express malice is the "publication of defamatory matter in bad faith, without belief in the truth of the matter published, or with reckless disregard of the truth or falsity of the m a tte r." Id. (other citations omitted). Whether a given set of facts constitutes a " p riv ile g e d occasion" ­ in other words, whether the circumstances support application of th e common interest privilege ­ is a matter of law for the court to determine. Id., citing R e sta te m e n t (First) of Torts, §§ 593 et seq. (1938) (other citations omitted). Whether the p riv ile g e is lost because the publication was rendered with express malice is a question of f a c t for a jury. Id. The sharing of a common interest can be the existence of a business relationship. Id. at 1113. If Willnerd alleges that Chapin published information to fellow Sybase e m p lo ye e s , a common interest privilege would apply by virtue of the employment re la tio n s h ip between publisher and receiver of the information. However, such privilege c o u ld be lost if Willnerd can, faithful to counsel's Rule 11 obligations, allege that Chapin p u b lish e d the information with malice ­ or in reckless disregard of the truth or falsity of th e information. Whether those accused of defamation acted with malice, so as to nullify

MEMORANDUM DECISION AND ORDER - 10

the common interest privilege would be a question for a jury to determine. Id. D. L ia b ility For Defamation May Attach For Statements Of Opinion If C o u p le d With False Implication Of Privileged Facts

In its motion to dismiss, Sybase also argues that the defamatory statements alleged b y Willnerd are not actionable because they are statements of opinion. Willnerd's first a m e n d e d complaint (Dkt. 26) is vague at best in describing the alleged defamatory s ta te m e n ts. However, in his response brief, Willnerd points to Sybase's reasons for his d is c h a rg e ­ "serious concerns about Plaintiff's `integrity' and `reliability' . . . `serious la c k of judgment' . . . [questionable] ethics and integrity." Willnerd Opp'n, Dkt. 37 at 6. According to Willnerd, the stated bases for his discharge "impugned his ability to engage in his profession." Id. A writer cannot be sued for expressing his opinion of a person, no matter how u n re a s o n a b le the opinion. Weimer v. Rankin, 790 P.2d 347, 352 (Idaho 1990), citing H o tc h n e r v. Castillo-Puche, 551 F.2d 910, 913 (2nd Cir. 1977) (other citations omitted). However, "when a negative characterization of a person is coupled with a clear but false im p lic a tio n that the author is privy to facts about the person that are unknown to the g e n e ra l reader," then liability may attach. Id. H e re , an assertion that Sybase supervisors or human resources managers believed th a t Willnerd lacked integrity or good judgment implies a basis for their belief. Arguably, th e statements imply that the author or speaker is privy to facts that are unknown to those re c e iv in g the information, depending on the circumstances of the communication.
MEMORANDUM DECISION AND ORDER - 11

Based on the foregoing analysis, the Court finds that amendment would not be f u tile . Because the record also supports findings of good cause and no undue delay, the C o u rt will grant Willnerd's motion to amend his defamation claim. 5. M o tio n to Amend Concerning An Implied-In-Fact Contract Is Unduly D e la y e d , And Amendment Would Be Prejudicial To Sybase In order to assert breach of an implied-in-fact contract, a plaintiff must d e m o n s tra te that both parties to the contract are aware of the contract's existence. Edmondson v. Shearer Lumber Products, 75 P.3d 733, 740 (Idaho 2003). According to W illn e rd , he and his supervisor, Terry Stepien, agreed to change the terms of his e m p lo ym e n t contract so that he would not be terminated unless he engaged in illegal a c tiv ity. Willnerd Dep., 31:11-34; 24, Dkt. 46-2. Willnerd testified in his deposition that th is conversation with Stepien took place sometime prior to May 15, 2007 ­ when W illn e rd signed his Education Assistance Agreement with Sybase. Id. In his motion to amend, Willnerd contends that he did not know until after the June 2 0 1 0 depositions of Chapin, Theil, and Baum, that Sybase Human Resources was aware o f Willnerd's implied-in-fact contract. Willnerd Br., Dkt. 41 at 3. Willnerd argues that " h e needed objective proof that Sybase also intended the employment relationship to be . . . modified" before he could pursue his claim for breach of the implied-in-fact contract. Id. at 10. Willnerd offers a timeline of events to show good cause for his delay in adding his im p lie d -in -f a c t contract claims. From that timeline, it appears that Willnerd was diligent
MEMORANDUM DECISION AND ORDER - 12

in efforts to schedule the depositions of Chapin, Theil, and Baum in April 2010, but was th w a rte d by discovery disputes of which the Court is aware, which caused them to be p o s tp o n e d until June 2010. The Court does not find, however, that Willnerd's diligence in scheduling these depositions adds up to an adequate justification for his delay in p u rs u in g these claims. The Court finds it as likely ­ if not more ­ that the June 2010 d e p o s itio n s , simply provided late inspiration of previously unconsidered theories of the case. If, as implied in his brief, Willnerd had intended to raise these claims from the b e g in n in g , he could have asserted in his initial complaint, that his supervisor, Terry S te p ie n , agreed in May of 2007 to terms giving rise to Willnerd's claim of an implied-inf a c t contract. However, neither the initial complaint nor the first amended complaint m a k e mention of the May 2007 discussions. By comparison, Willnerd's defamation c la im , although failing to identify critical facts such as the substance of defamatory s ta te m e n ts and to whom the statements were made, at least provided Sybase with general n o tic e of the claim. Addition of Willnerd's implied-in-fact contract would require Sybase to investigate a new theory of the case, now barely two weeks from the discovery cut-off.

Willnerd's request to amend ­ his second in this case ­ was made four months b e yo n d the agreed deadline to amend, and well into the discovery process. Also, W illn e rd did not file his motion to amend until August 26, 2010, roughly two months

MEMORANDUM DECISION AND ORDER - 13

after the June 2010 depositions at which the necessary information was supposedly re v e a le d . Willnerd fails to address this delay to the satisfaction of the Court. Given the facts in the record before it, the Court finds that Willnerd's motion to a m e n d was unduly delayed, and without good cause. The Court also finds that Sybase w o u ld be prejudiced if forced to respond to the new claims. Willnerd suggests there may b e efficiency gained by permitting a new claim that plaintiff could otherwise raise in a n e w and separate lawsuit. Willnerd Br., Dkt. 41 at 11. However, the Court finds that the e f f ic ie n c y gained by avoiding the mere possibility of a second consolidated case is o u tw e ig h e d by the certainty of prejudice to Sybase in delaying timely resolution of the c a s e now before it. 6. A m e n d m e n ts To Add Implied-In-Fact Contract Claims Would Be Futile E v e n if Willnerd's second motion to amend had been timely filed, Sybase argues th a t the undisputed facts demonstrate there is no implied-in-fact contract, thus amendment o f the complaint to add claims concerning such contract would be futile. The Court a g re e s . The Idaho Supreme Court has held that oral statements cannot transform an e m p lo ye e 's at-will status into an implied contract. Randall v. Boise Cascade, 931 P.2d 6 2 1 , 623-24 (Idaho 1996). In that case, the employer's policy explicitly provided that the o n ly person with authority to enter into any employment contract contrary to the e m p lo ye r's at-will policy was the vice president of the company. Id. at 624. Here, S yb a s e had a similar policy which provided that employees' at-will status could be

MEMORANDUM DECISION AND ORDER - 14

changed "only in a written agreement signed by an individual employee and Sybase's C h a irm a n , CEO and President." Keller Aff., Ex. C, Dkt. 46-6 at 2. In his deposition, Willnerd acknowledged signing his Education Assistance A g re e m e n t after his conversation with Stepien ­ when the implied-in-fact contract was a lle g e d ly created. See Keller Aff., Ex. D, Dkt. 46-7 at 2. That agreement, containing W illn e rd 's signature and dated May 15, 2007, includes the agreement that the signing p a rty "acknowledges that nothing in this agreement alters [the e]mployee's "at-will" e m p lo ym e n t status with Sybase." Id. Willnerd argues that he was not aware of Sybase's at-will policy until the day b e f o re his deposition in this matter. Willnerd Reply, Dkt. 56 at 4. According to Willnerd, it was Sybase's termination of employment policy, and not an at-will policy, that g o v e rn e d his employment relationship with Sybase. Id. at 4-5. However, the introductory s e c tio n of Sybase's termination of employment policy provides that it is guided in part by th e principle of "employment at will." Banducci Aff., Ex. E, Dkt. 56-2 at 52. So, although W illn e rd attests that he was unaware of Sybase's at-will policy, the record demonstrates th a t such policy was an integral part of Sybase's human resources policies and p ro c e d u re s . Id. The Court notes that the final section of Sybase's termination policy s ta te s that exceptions to the policy require approval by the Vice President of Worldwide H u m a n Resources. Id. at 54. B a se d on the evidence before it, the Court finds that the undisputed record before

MEMORANDUM DECISION AND ORDER - 15

the Court cannot support a claim that Willnerd had an implied-in-fact contract with S yb a s e . The documents which Willnerd agrees governed his employment ­ the Education A s sis ta n c e Agreement signed by Willnerd, the employment policy referenced therein, and th e human resources policies and procedures regarding termination ­ uniformly indicate th a t Willnerd's employment status at Sybase was at-will. Although exceptions and m o d if ic a tio n s to the at-will arrangement were possible under Sybase's policies and p ro c e d u re s , the requisite steps for an exception or modification did not occur. Willnerd d o e s not argue otherwise. The verbal assurance from Willnerd's supervisor that Willnerd w o u ld not be terminated unless he committed an illegal act was insufficient, under Sybase p o lic ie s and procedures, to alter his at-will employment status. Because Willnerd cannot e s ta b lis h an implied-in-fact contract, amendment to add claims concerning such contract w o u ld be futile. C O N C L U S IO N F o r the foregoing reasons, the Court finds that Willnerd's defamation claim, on its f a c e , is insufficient to state a claim on which relief can be granted. However, the Court f in d s good cause to grant Willnerd leave to amend the defamation claim, and that such a m e n d m e n t would not be futile. Accordingly, the Court will grant Sybase's motion to d is m is s the defamation claim, but will grant Willnerd leave to amend. R e g a rd in g Willnerd's motion to amend the complaint to add claims regarding an im p lie d -in -f a c t contract, the Court finds that such motion was unduly delayed. Allowing

MEMORANDUM DECISION AND ORDER - 16

Willnerd to amend at this time would be prejudicial to Sybase. Even if the motion were tim e ly, the Court finds that amendment would be futile, as the evidence cannot support th e existence of an implied-in-fact contract. Accordingly, the Court will deny Willnerd's m o tio n to amend. ORDER I T IS ORDERED THAT: 1. D e f e n d a n t's Motion to Dismiss Plaintiff's Defamation Claim (Dkt. 27) is G R A N T E D with leave to amend. 2. P la in tif f 's Motion for Leave to Amend the Complaint (Dkt. 40) is G R A N T E D as to Plaintiff's defamation claim, and DENIED as to P la in tif f 's claims regarding an implied-in-fact contract. 3. T h e Motion to Strike in Defendant's Reply Brief (Dkt. 43) is DENIED.

DATED: October 26, 2010

Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER - 17