Daniel Ashitey v. Arista Networks, Inc. and Terry Jenkins

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 DANIEL ASHITEY, Case No. 25-cv-04411-BLF 7 Plaintiff, 8 v. ORDER GRANTING MOTION TO DISMISS COMPLAINT, WITH LEAVE 9 ARISTA NETWORKS, INC. and TERRY TO AMEND IN PART AND WITHOUT JENKINS, LEAVE TO AMEND IN PART 10 Defendants. [Re: ECF 16] 11 12 13 Plaintiff Daniel Ashitey (“Ashitey”) is an independent contractor who provides industry 14 training regarding cloud computing and networking. See Compl. ¶ 1, ECF 1. He and non-party 15 SDN Pros LLC (“SDN Pros”), a training services provider, entered an agreement under which 16 Ashitey would provide training to other companies as assigned by SDN Pros on an order-by-order 17 basis. See id. ¶ 1 & Ex. A (Service Agreement). Through SDN Pros, Ashitey was assigned to 18 lead cloud engineering certification courses offered by Defendant Arista Networks, Inc. (“Arista”). 19 See id. ¶¶ 1-2. Defendant Terry Jenkins, Arista’s head of training and certification, expressed 20 dissatisfaction with Ashitey’s services and replaced him with another trainer in the middle of a 21 course. See id. ¶ 20. That was the last assignment Ashitey received from SDN Pros. See id. ¶ 22. 22 Ashitey sues Arista and Jenkins (collectively, “Defendants”) for tortious interference with 23 contractual relations and libel per se, seeking more than $5,000,000 in damages. See id. ¶¶ 5, 2924 44. 25 Before the Court is a motion to dismiss the complaint brought by Defendants under 26 Federal Rule of Civil Procedure 12(b)(6). See Defs.’ Mot., ECF 16. Oral argument was heard on 27 November 17, 2025. See Minute Entry, ECF 30. The motion is GRANTED, WITH LEAVE TO 1 I. BACKGROUND1 2 Ashitey, a Canadian citizen, is a network engineer with more than twenty years of 3 experience. See Compl. ¶ 6. He began doing course development and training for non-party SDN 4 Pros in 2020. See id. ¶ 7. SDN Pros provides industry training for other companies, including 5 Arista. See id. ¶ 3. Arista is based in California but it offers cloud engineering certification 6 courses in several regions around the world. See id. ¶¶ 3-4. Jenkins is Arista’s head of training 7 and certification. See id. 8 Ashitey and SDN Pros entered into a Service Agreement dated March 15, 2022, stating 9 that Ashitey would provide training services on an order-by-order basis, for which he would be 10 compensated $1,250 per training day plus travel and living expenses. See Compl. Ex. A (Service 11 Agreement). In preparation for assignments to provide training services for Arista, Ashitey 12 expended time and money to acquire the necessary certifications. See id. ¶ 11. Ashitey received 13 positive feedback when he began teaching Arista courses. See id. ¶¶ 12-13 & Ex. B. 14 The precise relationship between SDN Pros and Arista is unclear from the complaint. 15 Ashitey refers to SDN Pros as Arista’s “partner” throughout the complaint. Compl. ¶¶ 1-3. 16 Arista’s training officer, Jenkins, allegedly “runs the affairs of SDN Pros as his personal 17 business,” and “controls, directs, and has family members as employees in SDN Pros.” Id. ¶ 8. 18 SDN Pros uses the Slack messaging platform for internal communications, and Jenkins allegedly 19 has unrestricted access to the SDN Pros Slack channels. See id. ¶¶ 8, 15. Jenkins uses an SDN 20 Pros email address, Instructor@sdn-pros.com. See id. ¶ 8. 21 On June 18, 2024, Jenkins joined a Slack conversation between Ashitey and other SDN 22 Pros personnel on a Slack channel labeled “911.” See Compl. ¶ 16 & Ex. E (Slack Messages). 23 Jenkins questioned Ashitey’s inability to resolve a technical issue and cautioned Ashitey, “Just to 24 be clear, if you are teaching for me I expect you to know the technology you are teaching beyond 25 the students.” Id. ¶ 19 & Ex. E (Slack Messages). 26 27 1 The Background section is drawn from the facts alleged in the complaint, which are accepted as 1 Later the same day on June 18, 2024, another Slack conversation occurred between 2 Jenkins, Ashitey, and two SDN Pros employees named Monica Berkley and Shawn Jones. 3 Compl. ¶ 20 & Ex. F (Slack Messages). Defendants represent that Monica Berkley is an SDN 4 Pros customer support manager, and Shawn Jones is SDN Pros’ chief operating officer. See 5 Defs.’ Mot. at 7. Jenkins advised Ashitey, “Daniel, we do not need you to finish the course this 6 week, we are putting another instructor in to finish the course.” Id. ¶ 20 & Ex. F (Slack 7 Messages). After referring to concerns expressed by customers, Jenkins stated that “this does not 8 support the level of technical accuracy or quality that we represent.” Id. ¶ 20 & Ex. F (Slack 9 Messages). Ashitey responded, “Thanks for the opportunity,” to which Jenkins replied, “You’re 10 welcome good luck in the future.” Id. ¶ 20 & Ex. F (Slack Messages). Ashitey’s access to SDN11 Pros’ worksite was terminated, and he was removed from courses he had been scheduled to teach 12 for Arista. See id. ¶ 23. SDN Pros did not give Ashitey any further training assignments after 13 that. See id. ¶ 22. 14 Ashitey filed this suit against Arista and Jenkins on May 23, 2025, asserting two California 15 state law claims: (1) tortious interference with contractual relations, and (2) libel per se. See 16 Compl. ¶¶ 29-40. Ashitey’s claims against Arista appear to be based solely on the alleged conduct 17 of Jenkins. See id. Subject matter jurisdiction is based on diversity of citizenship. See id. ¶ 5. 18 Arista and Jenkins seek dismissal of the complaint under Rule 12(b)(6) for failure to state a 19 claim upon which relief may granted. 20 II. LEGAL STANDARD 21 Dismissal of a complaint is appropriate under Federal Rule of Civil Procedure 12(b)(6) “if 22 the complaint fails to state a cognizable legal theory or fails to provide sufficient facts to support a 23 claim.” Sinclair v. City of Seattle, 61 F.4th 674, 678 (9th Cir. 2023). When considering a Rule 24 12(b)(6) motion, a court must “take all allegations of fact as true and construe them in the light 25 most favorable to the nonmoving party.” Id. While a complaint need not contain detailed factual 26 allegations, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 27 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. 1 When evaluating a Rule 12(b)(6) motion, the district court is limited to consideration of the 2 allegations of the complaint, documents incorporated into the complaint by reference, and matters 3 that are subject to judicial notice. See Louisiana Mun. Police Employees’ Ret. Sys. v. Wynn, 829 4 F.3d 1048, 1063 (9th Cir. 2016). 5 III. DISCUSSION 6 Defendants assert that both claims of the complaint – Claim 1 for tortious interference with 7 contractual relations and Claim 2 for libel per se – are subject to dismissal for failure to meet the 8 Rule 12(b)(6) pleading standard. Ashitey argues that the claims are adequately pled. The Court 9 addresses the claims in turn. 10 A. Claim 1 – Tortious Interference with Contractual Relations 11 In Claim 1, Ashitey asserts that Arista and Jenkins tortiously interfered with his contractual 12 relationship with SDN Pros. “It has long been held that a stranger to a contract may be liable in 13 tort for intentionally interfering with the performance of the contract.” Pac. Gas & Elec. Co. v. 14 Bear Stearns & Co., 50 Cal. 3d 1118, 1126 (1990). The elements of a claim for intentional 15 interference with contractual relations are: “(1) the existence of a valid contract between the 16 plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s 17 intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual 18 breach or disruption of the contractual relationship; and (5) resulting damage.” Ixchel Pharma, 19 LLC v. Biogen, Inc., 9 Cal. 5th 1130, 1141 (2020) (internal quotation marks and citation omitted). 20 “It is generally not necessary that the defendant’s conduct be wrongful apart from the interference 21 with the contract itself.” Id. That general rule is subject to certain exceptions, however. See id. 22 “[T]o state a claim for interference with an at-will contract by a third party, the plaintiff must 23 allege that the defendant engaged in an independently wrongful act.” Id. at 1148 . 24 Ashitey alleges that: there was a valid contract between himself and SDN Pros (first 25 element); Jenkins knew of the contract (second element); Jenkins intentionally interfered with the 26 contractual relationship between Ashitey and SDN Pros (third element); Jenkins’ conduct caused 27 SDN Pros to breach the contract (fourth element); and Ashitey suffered resulting damages (fifth 1 Jenkins was acting as the agent of Arista. See id. ¶¶ 4-5. 2 Defendants do not challenge the sufficiency of those allegations. However, Defendants 3 contend that the claim fails because Ashitey’s allegations establish on their face that Jenkins was 4 not a stranger to the contract, as required to impose liability for intentional interference with 5 contractual relations. Defendants also contend that the claim fails because Ashitey has not alleged 6 that Defendants engaged in an independently wrongful act, as required to impose liability for 7 interference with an at-will contract such as the contract at issue here. 8 1. Jenkins was not a Stranger to the Contract 9 Under California law, liability may be imposed against a third party who interferes with a 10 contract “because the exchange of promises resulting in such a formally cemented economic 11 relationship is deemed worthy of protection from interference by a stranger to the agreement.” 12 Ixchel, 9 Cal. 5th at 1142 (internal quotation marks and citation omitted). Unfortunately, “there is 13 no definitive answer on the issue of who constitutes a ‘stranger’ in the context of a tortious 14 interference claim under California law.” LBF Travel Mgmt. Corp. v. Derosa, No. 20-CV-240415 MMA (AGS), 2022 WL 3588926 , at *8 (S.D. Cal. Aug. 22, 2022). In 2001, the Ninth Circuit 16 offered the following statement in Marin Tug when addressing the tort of intentional interference 17 with economic advantage: “California law has long recognized that the core of intentional 18 interference business torts is interference with an economic relationship by a third-party stranger 19 to that relationship, so that an entity with a direct interest or involvement in that relationship is not 20 usually liable for harm caused by pursuit of its interests.” Marin Tug & Barge, Inc. v. Westport 21 Petroleum, Inc., 271 F.3d 825 , 832 (9th Cir. 2001). Many district courts thereafter relied on 22 Marin Tug to dismiss claims for intentional interference with contractual relations where the 23 defendant had a direct interest or involvement in the contractual relationship, reasoning that such a 24 defendant was not a stranger to the contract. See, e.g. ViChip Corp. v. Lee, 438 F.Supp.2d 1087 , 25 1097 (N.D. Cal. 2006); Nat’l Rural Telecomms. Co-op. v. DIRECTV, Inc., 319 F.Supp.2d 1059 , 26 1070-72 (C.D. Cal. 2003). 27 In later decisions, however, the Ninth Circuit recognized that “Marin Tug’s enunciation of 1 Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1127 (9th Cir. 2014); see also 2 United Nat. Maint., Inc. v. San Diego Convention Ctr., Inc., 766 F.3d 1002, 1008 (9th Cir. 2014) 3 (collecting cases). “California courts have repeatedly held that parties with an economic interest 4 in a contractual relationship may be liable for intentional interference with that contract.” United 5 Nat. Maint., 766 F.3d at 1008 . Characterizing “[t]he ‘not-a-stranger’ principle” as “an elusive 6 concept,” the Fresno Motors court suggested that the only persons clearly insulated from liability 7 for interference with contractual relations are the contracting parties themselves. Fresno Motors, 8 771 F.3d at 1126-27 . In United Nat. Maint., the Ninth Circuit clarified that neither contracting 9 parties nor their agents may be held liable for interference with contractual relations. See United 10 Nat. Maint., 766 F.3d at 1008 (citing Mintz v. Blue Cross of California, 172 Cal. App. 4th 1594 , 11 1604 n.3 (2009)). 12 Even as so limited, the not-a-stranger principle clearly applies to bar liability here. The 13 claim for intentional interference with contractual relations is based entirely on Jenkins’ conduct. 14 See Compl. ¶¶ 30-33. However, the complaint alleges that Jenkins runs SDN Pros as his personal 15 business, Jenkins controls SDN Pros, and Jenkins fired Ashitey from SDN Pros. See id. ¶ 8. 16 Taking those allegations as true, Jenkins and SDN Pros are one and the same or Jenkins was 17 acting as an agent of SDN Pros. Jenkins therefore cannot be considered a stranger to the contract 18 between SDN Pros and Ashitey. 19 2. Ashitey has not Alleged and Independently Wrongful Act 20 Under California law, “to state a claim for interference with an at-will contract by a third 21 party, the plaintiff must allege that the defendant engaged in an independently wrongful act.” 22 Ixchel, 9 Cal. 5th at 1142 . “An act is not independently wrongful merely because defendant acted 23 with an improper motive.” Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 , 1158 24 (2003). “[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some 25 constitutional, statutory, regulatory, common law, or other determinable legal standard.” Id. at 26 1159. 27 Defendants assert that the agreement between Ashitey and SDN Pros was an at-will 1 length of time, nor required SDN Pros to provide Ashitey with any minimum number of training 2 engagements. See Compl. Ex. A (Service Agreement). While Ashitey appears to dispute the at3 will nature of the agreement in his opposition, his counsel conceded at the hearing that the 4 agreement was at-will. Having reviewed the agreement, which is attached to the Complaint, the 5 Court has no difficulty determining that it was an at-will contract on its face. See id. 6 Defendants argue that the complaint does not allege that they engaged in an independently 7 wrongful act, as required to state a claim for intentional interference with an at-will contract. The 8 Court agrees that the complaint does not allege an unlawful act by Defendants in support of the 9 intentional interference claim. In his opposition, Ashitey contends that Defendants committed 10 three independently wrongful acts sufficient to support a claim for intentional interference with 11 contractual relations: “Unauthorized communications by Arista Networks personnel (Jenkins) to 12 Plaintiff’s client under NDA”; “Misuse of confidential material from Slack and email channels 13 contemporaneous with active contract performance”; and “Inducement to terminate deliverables 14 tied to Plaintiff’s consulting contract.” Pl.’s Opp. at 6, ECF 18. Those acts are not alleged in the 15 complaint. 16 Based on the foregoing, the Court concludes that Claim 1 for intentional interference with 17 contractual relations is subject to dismissal on the grounds that Jenkins was not a stranger to the 18 contract between Ashitey and SDN Pros, and Claim 1 does not allege an independently wrongful 19 act. While the latter defect might be curable by amendment, the former defect is not curable, as 20 discussed below in Section III.C, Leave to Amend. Accordingly, the motion to dismiss is 21 GRANTED WITHOUT LEAVE TO AMEND as to Claim 1. 22 B. Claim 2 – Libel Per Se 23 In Claim 2, Ashitey alleges that the messages Jenkins posted on Slack on June 18, 2024 24 constituted libel per se. Defendants argue that Jenkins’ statements on Slack were non-actionable 25 statements of opinion. Defendants also argue that even if Jenkins’ statements were actionable, 26 they would fall within the common interest privilege. 27 1. Ashitey has not Alleged Defamatory Statements 1 accused party intentionally published (2) a statement of fact that is (3) false, (4) unprivileged, and 2 (5) has a tendency to injure.” Lutfi v. Al Naimi, No.: CV 17-08208 SJO (JPRx), 2018 WL 3 6265082, at *4 (C.D. Cal. Jan. 17, 2018) (internal quotation marks and citation omitted). “A 4 defamatory statement that requires no explanation as to the defamatory or offensive nature of the 5 statement is libel per se.” Id. (internal quotation marks and citation omitted). “The elements of 6 libel per se are otherwise identical to the claim of defamation.” Id. (internal quotation marks and 7 citation omitted). 8 The complaint alleges a mishmash of statements made by Jenkins in two different 9 exchanges on two different Slack channels. See Compl. ¶¶ 35, 41 & Exs. E, F. On June 18, 2024, 10 Jenkins joined a Slack conversation between Ashitey and other SDN Pros personnel on a Slack 11 channel labeled “911.” See id. ¶ 16 & Ex. E (Slack Messages). Jenkins questioned Ashitey’s 12 inability to resolve a technical issue and cautioned Ashitey, “Just to be clear, if you are teaching 13 for me I expect you to know the technology you are teaching beyond the students.” Id. ¶ 19 & Ex. 14 E (Slack Messages). Later the same day on June 18, 2024, in another Slack conversation between 15 Jenkins, Ashitey, and two SDN Pros employees, Jenkins advised Ashitey, “Daniel, we do not need 16 you to finish the course this week, we are putting another instructor in to finish the course.” Id. ¶ 17 20 & Ex. F (Slack Messages). After referring to concerns expressed by customers, Jenkins stated 18 that “this does not support the level of technical accuracy or quality that we represent.” Id. ¶ 20 & 19 Ex. F (Slack Messages). Ashitey responded, “Thanks for the opportunity,” to which Jenkins 20 replied, “You’re welcome good luck in the future.” Id. ¶ 20 & Ex. F (Slack Messages). 21 The complaint compresses Jenkins’ statements from the two Slack channels, making it 22 appear as though they occurred in the same exchange. See Compl. ¶¶ 35, 41. Ashitey asserts that 23 Jenkins’ statements were defamatory. However, on their face the statements appear to express 24 Jenkins’ opinions regarding Ashitey’s performance. An employer’s performance evaluation 25 cannot support a claim for libel unless it “accuses an employee of criminal conduct, lack of 26 integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior[.]” 27 Gould v. Maryland Sound Indus., Inc., 31 Cal. App. 4th 1137, 1153 (1995), as modified (Feb. 9, 1 perceptions about an employee’s efforts, attitude, performance, potential or worth to the enterprise 2 are objectively wrong and cannot be supported by reference to concrete, provable facts.” Id. 3 (internal quotation marks and citation omitted). 4 Whether a statement is defamatory may be decided as a matter of law at the motion to 5 dismiss stage. See Gould v. Maryland Sound Indus., Inc., 31 Cal. App. 4th 1137, 1153 (1995), as 6 modified (Feb. 9, 1995) (“The question whether a statement is defamatory can be reached on 7 demurrer as a matter of law.”). The Court finds that, as alleged, Jenkins’ statements are non8 actionable opinion about Ashitey’s performance. 9 In his opposition, Ashitey asserts that Jenkins made defamatory statements falsely 10 claiming: “Plaintiff’s incompetence and unfit in his profession”; “Terry Jenkins, published in 11 slack statements harmful to the Plaintiff’s profession”; and “Plaintiff’s consultancy was 12 ‘terminated due to ethical concerns.’” Pl.’s Opp. at 6-7. Those allegations do not appear in the 13 complaint. Ashitey also points to allegations in the complaint regarding positive statements made 14 about him years before Jenkins’ allegedly defamatory statements. Those statements are not 15 sufficient to show that Jenkins’ statements regarding Ashitey’s performance years later were 16 objectively false. 17 2. Ashitey has not Alleged Malice to Defeat the Common Interest 18 Privilege 19 The common interest privilege is codified in California Civil Code § 47(c), which provides 20 a conditional privilege for statements made “[i]n a communication, without malice, to a person 21 interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to 22 the person interested as to afford a reasonable ground for supposing the motive for the 23 communication to be innocent, or (3) who is requested by the person interested to give the 24 information.” Cal. Civ. Code § 47 (c). “The ‘interest’ must be something other than mere general 25 or idle curiosity, such as where the parties to the communication share a contractual, business, or 26 similar relationship or the defendant is protecting his own pecuniary interest.” Bikkina v. 27 Mahadevan, 241 Cal. App. 4th 70, 90 (2015). The defendant bears the initial burden of showing 1 statement was made with malice. See id. The plaintiff must establish “actual malice” by showing 2 either “that the publication was motivated by hatred or ill will towards the plaintiff” or “that the 3 defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted 4 in reckless disregard of the plaintiff’s rights.” Id. at 91 (internal quotation marks and citation 5 omitted). 6 Here, it appears on the face of the complaint that Ashitey, Defendants, and SDN Pros were 7 in a business relationship. Ashitey was an independent contractor assigned by SDN Pros to teach 8 Arista’s courses. Jenkins, in his role as head of training for Arista, would be expected to evaluate 9 Ashitey’s performance. Accordingly, as alleged in the complaint, it appears that Jenkins’ 10 statements fall within the common interest privilege. Ashitey therefore must allege facts showing 11 malice in order to defeat the common interest privilege. See Bowles v. Constellation Brands, Inc., 12 444 F. Supp. 3d 1161 , 1178 (E.D. Cal. 2020) (“The burden in this case thus shifts to plaintiff, who 13 argues that the common-interest privilege does not apply here because ‘the defamatory statement 14 was published with malice.’”). “A general allegation of malice will not suffice; plaintiff must 15 allege detailed facts showing defendant’s ill will towards him.” Id. (internal quotation marks and 16 citation omitted). Ashitey has not alleged any facts giving rise to a plausible inference that 17 Jenkins bore him ill will or acted in reckless disregard for his rights. 18 Based on the foregoing, the Court concludes that Claim 2 for libel per se is subject to 19 dismissal on the ground that the claim is based on Jenkins’ non-actionable statements of opinion. 20 In addition, it appears on the face of the complaint that the common interest privilege applies, and 21 Ashitey has not pled facts showing that Jenkins acted with malice. Because those pleading defects 22 may be curable through amendment, the motion to dismiss is GRANTED WITH LEAVE TO 23 AMEND as to Claim 2. 24 C. Leave to Amend 25 A district court ordinarily must grant leave to amend unless one or more of the following 26 “Foman factors” is present: (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure 27 to cure deficiencies by amendment, (4) undue prejudice to the opposing party, or (5) futility of 1 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “[I]t is the consideration of prejudice to the 2 || opposing party that carries the greatest weight.” Jd. However, a strong showing with respect to 3 one of the other factors may warrant denial of leave to amend. /d. 4 The record does not suggest undue delay (first factor) or bad faith (second factor) on the 5 || part of Ashitey. There have been no repeated failures to cure deficiencies (third factor), as the 6 || present motion addresses the original complaint. It does not appear that allowing amendment 7 || would impose undue prejudice on Defendants (fourth factor). 8 Whether to allow leave to amend therefore turns on the fifth and final factor, futility. The 9 || Court finds that amendment of Claim 1 for intentional interference with contractual relations 10 || would be futile because that claim is based on Jenkins’ conduct and Ashitey could not plausibly 11 allege that Jenkins was a stranger to the contract given the allegations in paragraph 8 of the 12 || complaint. The Court has grave reservations whether Ashitey could cure the defects in Claim 2 E 13 for libel. However, because it is not clear that amendment would be futile, the Court will grant 14 || leave to amend as to Claim 2. 3 15 IV. ORDER a 16 (1) Defendants’ motion to dismiss the complaint is GRANTED as follows: 17 (a) the motion is GRANTED WITHOUT LEAVE TO AMEND as to Claim 1 18 for intentional interference with contractual relations; and 19 (b) the motion is GRANTED WITH LEAVE TO AMEND as to Claim 2 for 20 libel per se. 21 (2) Any amended pleading SHALL be filed by January 15, 2026. Leave to amend is 22 limited to Claim 2 for libel per se against Defendants Arista and Jenkins. Plaintiff 23 may not add new claims or parties without express leave of the Court. 24 (3) This order terminates ECF 16. 25 26 Dated: December 11, 2025 BETH LABSON FREEMAN 28 United States District Judge