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Kamdem-Ouaffo v. Pepsico, Inc.

United States District Court, S.D. New York

March 9, 2015


Ricky Kamdem-Ouaffo New Brunswick, N.J. Pro se Plaintiff

Robert Lawrence Maier, Jennifer Cozeolino Tempesta, Richard Benjamin Harper, Baker Botts LLP, New York, NY, Counsel for Defendants.


KENNETH M. KARAS, District Judge.

Pro se Plaintiff Ricky Kamdem-Ouaffo ("Plaintiff") filed this Action in January 2013 against Defendants Pepsico, Inc. ("PepsiCo"), Dr. Peter S. Given, Jr. ("Dr. Given"), Dr. Naijie Zhang ("Dr. Zhang"), John Doe, and/or Jane Doe in January 2013. (Dkt. No. 1). Plaintiff alleges several causes of action arising out of his employment at PepsiCo, arguing principally that PepsiCo employees fraudulently commandeered his intellectual property. Before the Court is Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. For the foregoing reasons, Defendants' Motion is granted, and Plaintiff's First Amended Complaint is dismissed.


A. Factual Background[1]

Plaintiff, a resident of New Brunswick, New Jersey, has "professional experience" in the "research and development, manufacturing, analysis[, ] and application of flavors and aromas, " as well as "flavor encapsulation[] and the use applications of edible film formers." (Pl.'s Mem. of Law in Supp. of Pl.'s Countercl. and in Supp. of Denial of Defs.' Mot. To Dismiss ("Pl.'s Opp'n") Ex. 1 ("SAC") ¶¶ 1, 3-4 (Dkt. No. 43) (Plaintiff's proposed Second Amended Complaint).) From July 14, 2008 to September 28, 2009, Plaintiff worked as a "Food Scientist contractor 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 starting with PepsiCo, Plaintiff was required to sign a "Staffing Supplier Employee Agreement Regarding Confidentiality and Intellectual Property" ("Agreement") "with Pepsico through Subex Technologies, Inc." ("Subex"), the "contract [s]taffing [a]gency." ( Id. ¶ 23.) Plaintiff signed the Agreement on July 8, 2008, at which time a Subex manager "explained to... Plaintiff... that the [A]greement... meant that... Plaintiff in principle consented to assigning his future intellectual property to PepsiCo for commercial use in exchange for payment to be made to... Plaintiff during the course of the contract." ( Id. ¶¶ 23-24.) At the same time, Plaintiff alleges that there was a "common understanding" that if Plaintiff created intellectual property during the period of his contract that was patentable, "PepsiCo would... credit... Plaintiff" as the inventor. ( Id. ¶ 25.)

During the period of Plaintiff's employment, Plaintiff "pioneered, conceptualized, designed, demonstrated, proved, executed, and implemented aroma concepts, technologies, and techniques... that none of [PepsiCo's] employees [had] been able to do prior to Plaintiff's work." ( Id. ¶ 29.) Plaintiff also "filled up five to seven [l]aboratory [n]otebooks, " and created "scientific reports and... computer data" pertaining to his inventions. ( Id. ¶ 85.) 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 ("Purchase Order"). ( Id. ¶¶ 52-53, 186-87.)[2]

At some point prior to or on September 16, 2009, Defendants, at the direction of PepsiCo senior managers, "removed... Plaintiff's name from" intellectual property Plaintiff created during his period of employment at PepsiCo. ( Id. ¶¶ 32, 34.) In subsequent patent applications, PepsiCo credited the inventions to Dr. Given and Dr. Zhang, despite the fact that they allegedly did not "contribute to the creation" of that property. ( Id. ¶ 32.) Plaintiff alleges that Dr. Zhang was not an employee of PepsiCo when Plaintiff "created and conceptualized his inventions and reduced them to practice, " and that Dr. Given provided "no intellectual input or supervision" during that time. ( Id. ¶ 33.)

Plaintiff further alleges that the removal of his name from his inventions was part of a coordinated attempt by PepsiCo to distance itself from Plaintiff. On the same day that PepsiCo managers removed Plaintiff's name, Dr. Given allegedly sent an email to his colleagues which said: "Another hitch - [Plaintiff's] contract is terminating Oct. 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 (second alteration in original) (italics omitted).)[3] Dr. Zhang allegedly sent a similar email, stating that "Ricky Kamdem is not [the] inventor. He is just involved in the project....'" ( Id. ¶ 9 (second alteration in original) (italics omitted).) PepsiCo's Vice President of Research and Development, Valerie Jacklin, allegedly wrote to Dr. Given and the Director of the Ingredient Technology group, echoing Dr. Zhang's sentiment when noting that she was "[n]ot [s]ure [they] [w]ant [Plaintiff] [o]n [t]he [i]nvention [l]ist.'" ( Id. ¶ 255 (italics omitted).) An unnamed PepsiCo employee also allegedly entered a notation in Plaintiff's personnel file reading "Dept. not satisfied, " suggesting Plaintiff's work was unsatisfactory. ( Id. ¶ 38 (italics omitted).)

On or around September 23, 2009, five days before the expiration of Plaintiff's contract, Plaintiff alleges that he was told by an unnamed human resources manager that he was "culturally unfit'" for employment because he was "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.)[4] Plaintiff likewise alleges that PepsiCo's decision not to credit Plaintiff for his alleged inventions stemmed from "stereotypes and racial cliches about... Plaintiff as a person of... black skin." ( Id. ¶ 257.) A few months later, on December 18, 2009, Plaintiff alleges that Defendants wrote in a "Statement of Position" made to a United States government agency that "Plaintiff was not able to do work, and was not creative... by comparison to [his] counter parts [sic] of... other... race[s]." ( Id. ¶¶ 67, 257.) Plaintiff claims that Defendants "represent[ed] that... Plaintiff went to work only to look for opportunities for predatory sexual intercourse activity on women." ( Id. ¶ 258; see also id. ¶ 68.)

On September 28, 2009, Plaintiff's employment contract ended and was not renewed. ( Id. ¶¶ 35-36.)[5] At the expiration of his contract, Plaintiff sent a letter to PepsiCo management in which he made an "authorship claim on any current or future work resulting in... flavor encapsulates or... aroma delivery systems because [he] single-handedly demonstrated the need for [them] when no one at PepsiCo had [them] in mind...." ( Id. ¶ 62 (first and second alterations in original) (italics omitted).) 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.)[6] 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 each 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 patent applications at issue "from which [it]... expunged... Plaintiff's name" to include his name. ( Id. ¶ 55.) PepsiCo did not reply to this request, nor did it make the desired amendment. ( Id. ¶ 59.)[7] 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. ¶¶ 60, 91, 106.)

B. Procedural History

Plaintiff filed the instant Action on January 31, 2014. (Dkt. No. 1.) On March 14, 2014, the same day that Defendants first requested a pre-motion conference, (Dkt. No. 8), Plaintiff filed his First Amended Complaint, alleging thirteen causes of action, namely "breach of intellectual property agreement, " "wrongful appropriation of plaintiff's intellectual property, " "fraudulent obtaining of signature, " "correction of inventorship, " "unjust enrichment, " "the necessity of constructive trusts, " a "request for subpoenas, " three causes of action relating to alleged false statements made to the USPTO, and three causes of actions relating to other alleged criminal conduct. ( See Dkt. No. 9.) On March 26, 2014, Defendants filed two letters requesting a premotion conference. (Dkt Nos. 19, 20.) The Court granted Defendants' request, (Dkt. No. 21), and at the pre-motion conference held on May 15, 2014, the Court set a briefing schedule for Defendants' Motion to Dismiss, ( see Dkt. (minute entry for May 15, 2014)). Defendants filed their Motion To Dismiss and Memorandum of Law on June 6, 2014, (Dkt. Nos. 34, 35), and an associated Declaration on June 9, 2014, (Dkt. No. 37). On July 9, 2014, Plaintiff submitted a "Notice of Counterclaim... in Support of the Denial of the Defendants' Motion to Dismiss, " and an Affidavit and Memorandum of Law in support of that submission. (Dkt. Nos. 41, 42, 43.)[8] Plaintiff also filed a "Proposed Order [G]ranting... Plaintiff's Counterclaim" on July 10, 2014. (Dkt. No. 44.) Defendants filed their Reply on August 8, 2014. (Dkt. No. 46.)

Plaintiff has also filed a number of letters and requests, particularly during the two-month period preceding the pre-motion conference on Defendants' Motion To Dismiss. On March 18, 2014, Plaintiff filed a letter in response to Defendants' requests for a pre-motion conference, contesting Defendants' claims and requesting that the Court "allow the [j]udicial process to continue its normal course to the next step of discovery." (Dkt. No. 14 at 10). On March 21, 2014, Plaintiff filed a letter identifying alleged inaccuracies on the docket. ( See Dkt. No. 16.) On March 24, 2014, Plaintiff filed a letter requesting permission to join ScentSational Technologies LLC and Steven M. Landau as co-defendants. ( See Dkt. No. 18.) On March 27, 2014, Plaintiff filed a "Supplemental Answer" to Defendants' requests for a pre-motion conference, making similar arguments to those in his March 18 letter, ( see Dkt. No. 22), and to which Defendants replied on April 3, 2014, (Dkt. No. 25). On March 31, 2014, Plaintiff filed a letter seeking to introduce "[a]ccusatory [e]vidence" for the arrest of Defendants Dr. Given and Dr. Zhang. (Dkt. No. 24 at 1.) On April 7, 2014, Plaintiff filed a letter requesting that the Court assign a magistrate judge to adjudicate Plaintiff's criminal allegations. ( See Dkt. No. 26.) On April 14, 2014, Plaintiff filed a letter contending that Defendants could not make any res judicata arguments in connection with a related case pending in New York Supreme Court. ( See Dkt. No. 28.)[9] Plaintiff made additional arguments in support of this claim in a letter filed on April 16, 2014. ( See Dkt. No. 29.) On April 24, 2014, Plaintiff filed what he termed his "Pre-Motion Conference Concluding Remarks" three weeks before the pre-motion conference was held. (Dkt. No. 30.) Later, on August 14, 2014, after Defendants' Motion To Dismiss was fully briefed, Plaintiff filed a letter containing proposed talking points for oral argument on his Counterclaim. ( See Dkt. No. 47.) Finally, in late November 2014, Plaintiff sent a letter to the Court disclosing the name of an FBI investigator allegedly assigned to his case; the Court docketed a redacted version of this letter on December 1, 2014. ( See Dkt. No. 48.)

Together with the Memorandum of Law that Plaintiff submitted in response to Defendants' Motion To Dismiss, Plaintiff included a proposed Second Amended Complaint. ( See SAC.) While the conduct Plaintiff alleges in his Second Amended Complaint is almost entirely identical to that in Plaintiff's First Amended Complaint, a few differences are worth noting. First, Plaintiff added ScentSational Technologies LLC and Steven M. Landau as Defendants-two parties Plaintiff previously requested permission to join-and included allegations against them. ( See id. ) Second, Plaintiff withdrew his second, third, and sixth causes of action, which pertained to false statements allegedly made to the USPTO, and his fourth, fifth, and ninth causes of action, which pertained to alleged criminal conduct, instead requesting the "[i]nitiation [o]f [a] [s]eparate [c]riminal [c]omplaint [a]gainst... Defendants" PepsiCo, Dr. Zhang, and Dr. Given. ( See id. at 25-26, 28.)[10] Third, Plaintiff withdrew his thirteenth cause of action, his request for subpoenas, and instead requested joinder of ScentSational Technologies LLC and Steven M. Landau. ( See id. at 32.) Fourth, Plaintiff added fifteen new causes of action, including a number of claims based on the New York Uniform Commercial Code. ( Id. at 32-49.)

Defendants reviewed and responded to Plaintiff's proposed Second Amended Complaint in their Reply. (Defs.' Reply Mem. of Law in Further Supp. of Defs.' Mot. To Dismiss ("Defs.' Reply") 8-10 (Dkt. No. 46).) Therefore, without accepting the proposed Second Amended Complaint for filing, the Court will consider the allegations and claims contained in the ...

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