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Khalid v. Microsoft Corp.

United States District Court, W.D. Washington, Seattle

November 21, 2019

ATM SHAFIQUL KHALID, an individual and on behalf of similarly situated, XENCARE SOFTWARE, INC., Plaintiff,
MICROSOFT CORP., a Washington Corporation, and JOHN DOE n, Defendants.




         This matter comes before the Court on pro se Plaintiff ATM Shafiqul Khalid's Motion for Reconsideration. Dkt. #27. On September 4, 2019, this Court granted Defendant Microsoft Corporation (“Microsoft”)'s Motion to Dismiss, which dismissed Plaintiff's claims with leave to file an amended complaint. Dkt. #20. On October 2, 2019, Plaintiff filed an appeal to the Ninth Circuit, which was dismissed for lack of jurisdiction on October 25, 2019. Dkt. #23. Plaintiff now moves this Court to reconsider its order and requests certification for interlocutory appeal. Dkt. #27. The Court has determined that response briefing from Microsoft is unnecessary. See Local Rules W.D. Wash. LCR 7(h)(3).


         A full background of this case is not necessary given this Court's previous order on Plaintiff's claims against Microsoft. Dkt. #20. This action arises out of Plaintiff's dispute with his former employer, Microsoft, regarding an employment agreement he signed when he accepted a position as Senior Program Manager in Microsoft's Bing division (“the Employee Agreement”). The Employee Agreement assigned certain intellectual property rights to Microsoft for inventions Plaintiff developed during his employment at Microsoft starting January 2012 until his termination in February 2015. Dkt. #7 at ¶¶ 17, 21. Plaintiff claims that he provided Microsoft with an invention exclusion list (the “Exclusion List”) denoting nine patentable items that should have been excluded from the Employee Agreement. Id. at ¶¶ 13, 16, 18.

         On January 28, 2019, Plaintiff filed this action against Microsoft alleging eleven claims. Dkt. #1. The Court dismissed six of Plaintiff's claims with prejudice, including: forced labor under the Thirteenth Amendment (Count 4), a RICO claim for forced labor (Count 5), civil rights claims under 42 U.S.C. § 1983 and § 1985 (Counts 6, 12) fraud (Count 8), and a claim for declaratory relief for a Fourteenth Amendment violation (Count 10). Dkt. #20 at 22. The Court granted Plaintiff leave to file an amended complaint for his Sherman Act claims (Counts 1 and 2), his RICO claim for extortion (Count 3), and claims for declaratory relief for violation of RCW 49.44.140 and inequitable conduct (Counts 9 and 11).

         Plaintiff filed an earlier motion for reconsideration on October 28, 2019 requesting the Court to reconsider its order dismissing his claims. Dkt. #24. The instant motion is nearly identical to Plaintiff's original motion but adds a request for certification for interlocutory appeal. See Dkt. #27 at 2. Plaintiff clarifies that the November 18, 2019 motion, Dkt. #27, “replaces the premature earlier motion” filed on October 28. Id. Because the filings are almost indistinguishable, the Court will limit its consideration to the instant motion and hereby STRIKES Plaintiff's first motion for reconsideration, Dkt. #24, as moot.


         A. Plaintiff's Leave to Amend

         As an initial matter, the Court finds it necessary to clarify for Plaintiff the scope of this Order. This Order only reconsiders the Court's previous decision to dismiss certain claims as they were presented in Plaintiff's first amended complaint, Dkt. #7, and considers his request for certification for interlocutory appeal. It does not examine new allegations presented for the first time in Plaintiff's Motion for Reconsideration, including Plaintiff's “Proposed Second Amended Complaint” filed as an exhibit. See Dkt. #27-1. The Court has already granted Plaintiff leave to amend his complaint with respect to Counts 1-3, 9 and 11. See Dkt. #20 at 22. To the extent that Plaintiff wishes to allege new facts related to those claims, he should include them in a Second Amended Complaint filed as its own docket entry.

         B. Plaintiff's Untimely Motion for Reconsideration

         Although Plaintiff styles the motion as one to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e), no judgment was entered as a result of the Court's previous order. See Dkt. #20. Accordingly, Plaintiff's Motion is properly treated as one for reconsideration pursuant to Local Rules W.D. Wash. LCR 7(h).

         Motions for reconsideration “shall be filed within fourteen days after the order to which it relates is filed.” LCR 7(h). Here, the Court issued its order granting Microsoft's motion to dismiss on September 4, 2019. Dkt. #20. The deadline to file a motion for reconsideration was therefore no later than September 18, 2019. This deadline elapsed before Plaintiff filed his appeal to the Ninth Circuit on October 2, 2019. Because Plaintiff did not file either of his motions for reconsideration until October 28, 2019 and November 18, 2019, respectively, both motions are untimely. See Dkts. #24, #27. For this reason alone, denial of Plaintiff's motion is appropriate. Even if the Court affords pro se Plaintiff “the benefit of any doubt” and considers the merits of his motion, see Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 2008), this district's local rules limit motions for reconsideration to six pages. See Local Rules W.D. Wash. LCR 7(e)(1). For this reason, the Court's review is properly limited to the first six pages of Plaintiff's Motion. See Dkt. #27 at 2-7.

         C. ...

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