Kamdem-Ouaffo v. Pepsico, Inc., Case No. 14-CV-227 (KMK)

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: KENNETH M. KARAS, District Judge
• Citation: 160 F.Supp.3d 553
• Decision Date: 26 January 2016
• Docket Number: Case No. 14-CV-227 (KMK)
• Parties: Ricky Kamdem-Ouaffo, Plaintiff, v. Pepsico, Inc. and Its Affiliates, Dr. Peter S. Given, Jr., Dr. Naijie Zhang, Scentsational Technologies LLC, Steven M. Landau, John Doe, and/or Jane Doe, Defendants.

160 F.Supp.3d 553

Ricky Kamdem-Ouaffo, Plaintiff,
v.
Pepsico, Inc. and Its Affiliates, Dr. Peter S. Given, Jr., Dr. Naijie Zhang, Scentsational Technologies LLC, Steven M. Landau, John Doe, and/or Jane Doe, Defendants.

Case No. 14-CV-227 (KMK)

United States District Court, S.D. New York.

Signed January 26, 2016

160 F.Supp.3d 556

Ricky Kamdem-Ouaffo, PhD, New Brunswick, NJ, Pro se Plaintiff.

Robert L. Maier, Esq., Jennifer C. Tempesta, Esq., Richard B. Harper, Esq., Baker Botts LLP, New York, NY, Counsel for Defendants Pepsico, Inc., Dr. Peter S. Given, Jr., and Dr. Naije Zhang.

Melvin C. Garner, Esq., Cameron S. Reuber, Esq., Lauren B. Sabol, Esq., Leason Ellis LLP, White Plains, NY, Counsel for Defendants ScentSational Technologies LLC and Steven M. Landau.

Joel B. Rothman, Esq., Seiden, Alder & Matthewman, P.A., Boca Raton, FL, Counsel for Defendant ScentSational Technologies LLC.

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Pro se Plaintiff Ricky Kamdem-Ouaffo (“Plaintiff”) bring this Second Amended Complaint (“SAC”) against Pepsico, Inc. (“PepsiCo”), Dr. Peter S. Given, Jr. (“Dr. Given”), Dr. Naijie Zhang (“Dr. Zhang”), ScentSational Technologies LLC (“ScentSational”), and Steven M. Landau (“Landau”) (collectively, “Defendants”), asserting unenforceable contract, unjust enrichment, constructive trust, correction of inventorship, and defamation. (Dkt. No. 52). Before the Court are two Motions to Dismiss Plaintiff's Second Amended Complaint (collectively, “Motions”), one on behalf of ScentSational and Landau (“ScentSational Defendants”) and one on behalf of PepsiCo, Dr. Given, and Dr. Zhang (“PepsiCo Defendants”). (Dkt. Nos. 72, 75.) For the following reasons, Defendants' Motions are granted, and Plaintiff's Second Amended Complaint is dismissed with prejudice.

I. Background

A. Factual Background

The factual allegations that follow are derived from Plaintiff's Second Amended Complaint, which the Court assumes to be true for the purpose of deciding the instant Motions.

Plaintiff, a resident of New Brunswick, New Jersey, “has many years of experience in the research and development, manufacturing, analysis[,] and application of flavors and aromas.” (Pl.'s Second Am. Compl. (“SAC”) ¶ 3 (Dkt. No. 52).) From July 14, 2008 to September 28, 2009, Plaintiff worked under contract as a “Food Scientist at ... PepsiCo's Research and Development facility in Valhalla, New York.” (Id. ¶ 22.) In that capacity, Plaintiff was tasked with “provid[ing] leadership and strategy for developing [and] evaluating commercially viable Aroma Technology Delivery System[s] applicable to PepsiCo's commercial items.” (Id. ¶ 27.)

Prior to beginning his work at PepsiCo, Plaintiff signed a “Staffing Supplier Employee Agreement Regarding Confidentiality and Intellectual Property” (“Agreement”) with PepsiCo through Subex Technologies, Inc. (“Subex”) “as the [s]taffing [a]gency.” (Id. ¶ 23 (internal quotation marks omitted).) Plaintiff signed the Agreement on July 9, 2008, at which time Subex managers explained that, pursuant to the Agreement, “Plaintiff in principle consented to assigning his future intellectual property to PepsiCo for commercial use in exchange [for] payment to be made to ... Plaintiff in the future.” (Id. ¶¶ 23–24.) Plaintiff alleges there was also “[a] common understanding” that should intellectual property created by Plaintiff during the period of his contract “be found patentable,” PepsiCo would “credit” Plaintiff as the inventor. (Id. ¶ 25.)

During the period of his employment as a “Food Scientist[,]... Plaintiff pioneered, conceptualized, designed, demonstrated, proved, executed, and implemented aroma concepts, technologies, and techniques ... that none of [PepsiCo's] employees [had]

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been able to do prior to ... Plaintiff's work.” (Id. ¶ 29.) Plaintiff received $82,142 in compensation for his work, or $56,384 in take-home pay, which amounted to only a percentage of the $133,007.50 Plaintiff alleges he is owed under an unsigned purchase order. (Id. ¶¶ 52–53, 186–87.)¹

At some point prior to or on September 16, 2009, PepsiCo Defendants, at the direction of PepsiCo senior managers, “expunged ... Plaintiff's name from” intellectual property Plaintiff created during his employment. (Id. ¶¶ 32, 34.) In subsequent patent applications, PepsiCo credited these inventions to Dr. Given and Dr. Zhang, though allegedly neither “contribute[d] to the creation and/or inventions of” that intellectual property. (Id. ¶ 32.) Specifically, Plaintiff alleges that Dr. Given provided “no intellectual input or supervision” when “Plaintiff created and conceptualized his inventions and reduced them to practice,” and “Dr. Zhang was not even an employee of PepsiCo” during that time period. (Id. ¶ 33.)

Plaintiff further alleges that the removal of his name from the intellectual property was part of a coordinated attempt by PepsiCo to distance itself from Plaintiff. On the same day that PepsiCo managers removed Plaintiff's name certain intellectual property, Dr. Given allegedly sent an email to his colleagues that said: “ ‘Another hitch—[Plaintiff's] contract is terminating Oct[ober] 5, and he'll be informed this week ... more drama! Please do not distribute this info, but [it] may impact our decision on inventorship.’ ” (Id. ¶ 8 (italics omitted).)² Dr. Zhang allegedly sent a similar email, stating that “ ‘[Plaintiff] is not [the] inventor. He is just involved in the project ....’ ” (Id. ¶ 9 (third alteration in original) (italics omitted).) Plaintiff contends that around this time an unnamed PepsiCo employee secretly entered a notation in Plaintiff's personnel file reading “Dept. not satisfied,” which erroneously suggested Plaintiff's work had been unsatisfactory. (Id. ¶ 38 (italics omitted).)

On or around September 23, 2009, five days before the expiration of Plaintiff's contract, PepsiCo Human Resources Manager Aida Costello allegedly told Plaintiff that he was “ 'culturally unfit' ” for employment, “being a black male [with] an opinion on scientific matters that was contrary to that of his peers of [another] skin color,” and that he “needed to be 'coached.' ” (Id. ¶ 64–66 (alteration omitted).) Plaintiff likewise alleges that PepsiCo's decision not to credit Plaintiff for his claimed inventions stemmed from “raw racism ... directed against people,” like Plaintiff, “who are of the genetics ... and appearance that [D]efendants don't like.” (Id. ¶ 71.)

On September 28, 2009, Plaintiff's work assignment contract expired and was not renewed. (Id. ¶¶ 35–36.)³ At that time, Plaintiff sent a letter to PepsiCo in which he made an “authorship claim on any current

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or future work resulting in ... flavor encapsulates or ... aroma delivery systems because [he] single-handedly demonstrated the need for such when no one at PepsiCo had [them] in mind ....” (Id. ¶ 62 (first and second alterations in original) (emphasis and internal quotation marks omitted).) A few months later, on December 18, 2009, PepsiCo Defendants allegedly wrote in a letter to the United States government that “Plaintiff was not able to do work, and was not creative ... by comparison to his counter parts [sic] of ... other skin color [s].” (Id. ¶ 67.) According to the SAC, PepsiCo also represented that Plaintiff went “to work at [its] facilities just for the pretense and opportunity of predatory sexual intercourse with women of ... other [races].” (Id . ¶ 253; see also id. ¶¶ 68, 274, 311.)

Thereafter, PepsiCo filed for five patents with the United States Patent and Trademark Office (“USPTO”) based on the intellectual property at issue, one of which, a patent application for “Releasable Entrapment of Aroma Using Polymeric Matrix,” was granted on July 2, 2013 (US Patent No. 8,474,637 B2 ). (See id. ¶¶ 41, 47, 60.)⁴ In connection with the patent applications, Dr. Given and Dr. Zhang allegedly each signed or cosigned “Inventor's Oath[s] or Declaration[s],” including a “Joint Inventor's Declaration,” for the granted patent. (Id. ¶¶ 44–48.) Dr. Given and Dr. Zhang also allegedly executed and filed an assignment of the relevant intellectual property to PepsiCo. (Id. ¶¶ 49–50.)

On October 11, 2012, Plaintiff submitted a request to PepsiCo, asking that it amend the relevant “patent applications and patents thereof from which [it] ... removed ... Plaintiff's name” to credit him as the inventor. (Id. ¶ 55; see also id. ¶ 56.) PepsiCo did not reply to this request, nor did it “make the amendment and correction of inventorship requested.” (Id. ¶ 59.) Nonetheless, Plaintiff alleges that he is the “true inventor” of both the patented property and the property described in the four pending patent applications. (Id. ¶ 93; see also id. ¶¶ 60, 107–08.)

B. Procedural History

Plaintiff commenced the instant Action on January 31, 2014 against PepsiCo, Dr. Given, and Dr. Zhang, alleging six causes of action arising out of his temporary work assignment for PepsiCo. (Dkt. No. 1.) On March 14, 2014, the same day that PepsiCo Defendants first requested a pre-motion conference, (Dkt. No. 8), Plaintiff filed his First Amended Complaint (“FAC”), alleging thirteen causes of action, specifically “breach of intellectual property agreement,” “wrongful appropriation of plaintiff's intellectual...