Issaenko v. Univ. of Minn.

Citation57 F.Supp.3d 985
Decision Date30 September 2014
Docket NumberCivil No. 13–3605 JRT/SER.
PartiesOlga ISSAENKO, Plaintiff, v. UNIVERSITY OF MINNESOTA; Martina Bazzaro, in her personal, individual and official capacity as faculty of the University of Minnesota; Regents of the University of Minnesota, a constitutional corporation of the State of Minnesota ; Richard B. Beeson, Dean E. Johnson, Clyde E. Allen, Laura M. Brod, Linda A. Cohen, Thomas W. Devine, John R. Frobenius, David M. Larson, Peggy E. Lucas, David J. McMillan, Abdul M. Omari, and Patricia S. Simmons, in their official capacities as Regents; Karen Hanson, in her official capacity as Senior Vice President of Academic Affairs and Provost; Douglas Yee, in his official capacity as Director, Masonic Cancer Center; Tucker W. LeBien, in his official capacity as Associate Vice–President, Academic Health Center Office of Research; Linda Carson, in her official capacity as Professor and Head of Department of Obstetrics, Gynecology, and Women's Health; and Frances Lawrenz, in her official capacity as Associate Vice–President for Research, Office of the Vice–President for Research, Defendants.
CourtU.S. District Court — District of Minnesota

Damon L. Ward, Ward Law Group, Minneapolis, MN, for Plaintiff.

Brian J. Slovut, University of Minnesota Office of the General Counsel, Minneapolis, MN, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN R. TUNHEIM, District Judge.

This case arises out of Plaintiff Olga Issaenko's brief tenure as a research scientist in the laboratory of Defendant Dr. Martina Bazzaro at the University of Minnesota's Masonic Cancer Center. The heart of Issaenko's claims is that, without Bazzaro's knowledge or assistance, she developed written materials and figures based on experiments and research that she performed during her employment at the Masonic Cancer Center and that Bazzaro later claimed to own the copyrights in those materials. Issaenko brings eleven statutory, constitutional, and common law claims against Bazzaro in her official and individual capacities, the University of Minnesota and the Regents of the University of Minnesota (collectively, the University), as well as seventeen employees and regents of the University (“the Individual Defendants) in their official capacities.

Defendants move to dismiss the First Amended Complaint in its entirety. Issaenko later moved for leave to file a second amended complaint. Finally, Issaenko brought a motion seeking preliminary injunctive relief based on her copyright infringement claim. Because the Court concludes that it lacks subject matter jurisdiction over a number of Issaenko's claims and that, with the exception of Issaenko's claims for promissory estoppel and tortious interference, the First Amended Complaint fails to state claims upon which relief can be granted, the Court will grant Defendants' motion to dismiss, except to the extent it seeks dismissal of the promissory estoppel and tortious interference claims brought against Bazzaro in her individual capacity. The Court also concludes that amendment of the complaint would be futile with respect to all claims except the tortious interference claim to the extent it is asserted against Defendants Frances Lawrenz and Tucker LeBien in their individual capacities, and therefore will grant the motion to amend only with respect to that claim. Finally, the Court will deny Issaenko's motion for a preliminary injunction, as she has failed to demonstrate either likelihood of success on the merits or irreparable harm.

BACKGROUND
I. THE RESEARCH SCIENTIST POSITION

Issaenko holds a Ph. D. in biology and has worked in the area of academic cancer

research for a number of years. (Am. Compl. ¶ 30, Jan. 16, 2014, Docket No. 7.)1 On September 14, 2009, the University offered Issaenko a position as a scientist in Dr. Martina Bazzaro's laboratory at the University's Masonic Cancer Center. (Id., Ex. 4 at 8, Ex. 5 at 11.)2 Issaenko accepted the job on September 28, 2009. (Id. ¶ 36.) In that position, Issaenko was responsible for employing “molecular biology approaches for studying the role of protein degradation pathways in cancer setting for targeted treatment of ovarian and cervical cancer.” (Id., Ex. 5 at 11.) The position involved the following duties and responsibilities:

70%: Responsible to conduct research investigations from experimental design and reagent preparation to interpretation of experimental results. Evaluate, suggest alternate methods, modify or develop new procedures and techniques to aid in the investigation of a total research problem or program.
20%: Analyze research data. Write reports and papers on research results. Author or co-author manuscripts for publication. Make presentations at professional meetings. Discuss and plan new avenues of investigation. Assist in drafting proposals to procure research funding. Required meetings with supervisor.
10%: Laboratory management including inventory of laboratory supplies, reagents, and equipments. Train new personnel, including undergraduate and graduate students. Ensure compliance with necessary record keeping for all members of the Lab.

(Id. ¶ 37, Ex. 5 at 11.)

II. ISSAENKO'S INDEPENDENT RESEARCH

Issaenko alleges that for the first three months after beginning her job, she “managed the lab (ordering chemical supplies and equipment).” (Id. ¶ 42.) Between January and March 2010 Issaenko alleges that Bazzaro would instruct Issaenko as to what work to perform but Issaenko “expanded experiments to correct incorrect assumptions, modify the protocol deficiencies, or enhance the experiments.” (Id. ¶ 43.) Issaenko alleges that Bazzaro “provided little to no input to the development of research projects,” “refused to provide certain, necessary software and support for Plaintiff to perform ... experiments” and “was dismissive of the work/experimentation Plaintiff was conducting.” (Id. ¶ 44.)3

Between January and April 2010 Issaenko worked on two projects “under the general supervision of Defendant Bazzaro.” (Id. ¶ 47.) The first project related to the survival of ovarian and cervical cancer

cells after certain types of treatments. (Id. ¶ 48.) For this project, Issaenko obtained raw data from Dr. Polunovsky, her former supervisor in a different department at the University, and provided the data to Bazzaro. (Id. ) Issaenko then, “without Defendant Bazzaro's knowledge or input or instruction,” used this data to compile tables and graphs at home. (Id. ¶ 49.) With respect to this project, Issaenko suggested to Bazzaro in March 2010 that they perform experiments using a certain type of cell sorting, which Bazzaro declined to do after deciding that such experiments “were not needed.” (Id. ¶ 50.) Issaenko proceeded to perform these experiments and the resulting analysis with the help of Dr. Polunovsky. (Id. ¶¶ 51–55.) Issaenko alleges that she performed the analysis “at her own initiative after hours on her free and unpaid time at home, on which she used her own software [or Dr. Polunovsky's computer] to generate tables and figures.” (Id. ¶¶ 55–56.)

Issaenko shared her data and analysis resulting from these experiments with Bazzaro. (Id. ¶ 53.)

With respect to the second “independent” project discussed in the First Amended Complaint, Issaenko alleges that she “provided raw data to Defendant Bazzaro and also worked at home on compilations of tables and graphs, and draft [s] of a joint manuscript,” which Issaenko and Bazzaro planned to submit to the Journal of Medicinal Chemistry (“JMC”) in May 2010. (Id. ¶ 57.) Issaenko conducted numerous experiments related to the second project, and alleges that when she asked Bazzaro for help, Bazzaro either did not provide it or asked for more information about Issaenko's questions. (Id. ¶¶ 58, 63.) Issaenko alleges that Bazzaro was unaware of the nuances of many of these experiments and Issaenko “worked on statistical analyses for this project at her own home us[ing] her own software because none was provided [by] Defendants and that Defendants did not pay for this after hours work.” (Id. ¶ 60; see also id. ¶ ¶ 59–62.) Issaenko alleges that, also without Bazzaro's instruction, she “conceived, designed and performed additional experiments.” (Id. ¶ 62.) Issaenko alleges that based on her independent experiments she “created compilations of tables, graphs and images,” and asked Bazzaro to include them in the joint manuscript to be submitted to the JMC. (Id. ¶ 63.) Issaenko continued to conduct experiments that Bazzaro determined were unnecessary, and submitted to Bazzaro the figures she made at home as a result of these experiments. (Id. ¶¶ 64–65.) Bazzaro denied Issaenko's request to have this material included in the joint manuscript. (Id. ¶ 66.)

III. TERMINATION

In May and June 2010, Bazzaro went on vacation. (Id. ¶ 79.) During this time period, Issaenko alleges that she performed experiments that had been requested by Bazzaro and provided her with the raw data and compilations that resulted from those experiments. (Id. ¶¶ 77–79.) During Bazzaro's vacation Issaenko also “conceived ideas and designed several additional experiments” but was unable to work on them in Bazzaro's lab as she did not have the financial resources to purchase the necessary supplies and certain equipment was not functioning. (Id. ¶ 78.) Instead, Issaenko decided to conduct these experiments in Dr. Polunovsky's laboratory. (Id. ¶ 79.) Issaenko compiled the results of these experiments into tables, graphs, and images using her own software. (Id. ¶ 80.) Later in June, when Bazzaro returned from vacation, Issaenko presented Bazzaro with the independent work she had done in Dr. Polunovsky's lab. (Id. ¶¶ 82, 84.) Bazzaro requested that Issaenko provide her with copies of her work and raw data so that Bazzaro could draft a joint manuscript on which Issaenko would be listed as the first author. (Id. ¶ 87.) Issaenko provided the requested information. (Id. ¶ 88.) Issaenko alleges that afterward, when Issaenko returned to work from vacation on July...

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