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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

YONGSHENG CHEN, : Case No. 4:15-cv-01136

:

Plaintiff, :

:

v. : (Judge Brann)

:

THE PENNSYLVANIA STATE :

UNIVERSITY, :

:

Defendant. :

MEMORANDUM

December 18, 2015

Pending before this Court is a Motion to Dismiss1filed by Defendant The 

Pennsylvania State University (hereinafter “Penn State”) on October 9, 2015 and a 

Motion for Leave to File a Second Amended Complaint2filed by Plaintiff acapella 

Yongsheng Chen (hereinafter “Dr. Chen”). Dr. Chen seeks to amend his amended 

complaint,3filed on August 28, 2015 by adding three paragraphs, discussed below. 

Penn State opposes the motion for leave to amend because in its view the proposed 

amendments do not address the defects in Dr. Chen’s amended complaint in light 

of Penn State’s motion to dismiss. Both motions have been fully briefed by the 

parties and the matters are now ripe for disposition. For the following reasoning, 

 

1 ECF No. 14.

2 ECF No. 16.

3 ECF No. 10.

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Dr. Chen’s motion for leave to file a second amended complaint is granted and 

Penn State’s motion to dismiss is denied as moot as to Dr. Chen’s amended 

complaint.

I. BACKGROUND

Dr. Chen is a former employee of Penn State where he was an Assistant 

Professor in the Department of Energy and Mineral Engineering in the College of 

Earth and Mineral Sciences. Dr. Chen was denied tenure and promotion, which he 

claims was a result of discrimination based on race and national origin.

Dr. Chen initially filed his complaint, alleging several counts of 

discrimination based on race and national origin in violation of Title VII, 42 U.S.C. 

§ 2000e et seq. and the Pennsylvania Human Relations Act. Count V of Dr. Chen’s 

complaint, however, is a claim based on breach of contract.

Penn State filed a motion to dismiss Dr. Chen’s breach of contract claim. Dr. 

Chen subsequently filed an amended complaint and this Court denied Penn State’s 

motion to dismiss as moot in light of the amended complaint. Penn State then filed 

the instant motion to dismiss Count V as to the amended complaint and Dr. Chen 

filed the instant motion for leave to file second amended complaint. 

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II. LEGAL STANDARDS

Rule 15 of the Federal Rules of Civil Procedure provides that a pleading 

may be amended by leave of court and that “the court should freely give leave 

when justice so requires.”4The United States Supreme Court explained:

“[i]n the absence of any apparent or declared reason—such as undue delay, 

bad faith or dilatory motive on the part of the movant, repeated failure to 

cure deficiencies by amendments previously allowed, undue prejudice to the 

opposing party by virtue of allowance of the amendment, futility of 

amendment, etc.—the leave sought should, as the rules require, be ‘freely 

given.’”

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In the matter at hand, Penn State argues that amending the pleading would 

be futile. “‘Futility’ means that the complaint, as amended would fail to state a 

claim upon which relief could be granted . . . [as reviewed under] the same 

standard of legal sufficiency as applies under Rule 12(b)(6).”6 When considering a 

motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must 

view all allegations stated in the complaint as true and construe all inferences in 

the light most favorable to plaintiff.7In ruling on such a motion, the court primarily 

considers the allegations of the pleading, but is not required to consider legal 

 

4

Fed. R. Civ. P. 15(a)(2).

5 Foman v. Davis, 371 U.S. 178, 182 (1962).

6

In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997), citing Glassman v. 

Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996). 

7

See Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 

1993). 

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conclusions alleged in the complaint.8 “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.”9 

A complaint should only be dismissed if, accepting as true all of the 

allegations in the amended complaint, the plaintiff has not pled enough facts to 

state a claim to relief that is plausible on its face.10 “Determining whether a 

complaint states a plausible claim for relief will . . . be a context-specific task that 

requires the reviewing court to draw on its judicial experience and common 

sense.”11 

“In considering a Rule 12(b)(6) motion, we must be mindful that federal 

courts require notice pleading, as opposed to the heightened standard of fact 

pleading.”12 Federal Rule of Civil Procedure 8 "requires only a ‘short and plain 

statement of the claim showing that the pleader is entitled to relief,' in order to 

'give the defendant fair notice of what the...claim is and the grounds on which it 

rests.'"13 Even under this lower notice pleading standard, however, a plaintiff must 

do more than recite the elements of a cause of action, and then make a blanket 

assertion of an entitlement to relief.14 Instead, a plaintiff must make a factual 

showing of his entitlement to relief by alleging sufficient facts that, when taken as 

 

8 Kost, 1 F.3d at 183.

9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

10 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007). 

11 Iqbal, 556 U.S. at 663-664.

12 Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa. May 5, 2008) (Lancaster, J.).

13 Twombly, 550 U.S. at 554 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

14 See Hellmann, 2008 WL 1969311 at *3.

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true, suggest the required elements of a particular legal theory.15 “[W]here the 

well-pleaded facts do not permit the court to infer more than the mere possibility of 

misconduct, the complaint has alleged - - but it has not “shown” - - “that the 

pleader is entitled to relief.”16

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation 

by dispensing with needless discovery and factfinding.”17 A court may dismiss a 

claim under Rule 12(b)(6) where there is a “dispositive issue of law.”18 If it is 

beyond a doubt that the non-moving party can prove no set of facts in support of its 

allegations, then a claim must be dismissed “without regard to whether it is based 

on an outlandish legal theory or on a close but ultimately unavailing one.”19 

III. DISCUSSION

Penn State argues that Dr. Chen’s breach of contract claim should be 

dismissed because he fails to set forth factual allegations to establish such a claim 

and instead “relies on language that is too indefinite to be enforceable; permissive 

language that does not create specific contractual obligations; factual allegations 

that fail to plausibly or logically state breaches of any identified obligations; 

immaterial technicalities that did not plausibly result in the tenure denial decision; 

 

15 See Twombly, 550 U.S. at 561.

16 Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)).

17 Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

18 Id. at 326.

19 Id. at 327.

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or misplaced reliance on an Academic Freedom Policy when the alleged facts fail 

to suggest any infringement of that policy.”20 Dr. Chen, not unexpectedly, argues 

that he has pled sufficient facts to establish a breach of contract cause of action.

It is well-established under the law of Pennsylvania that a breach of contract 

action involves 1) the existence of a contract, 2) a breach of a duty imposed by the 

contract, and 3) damages.21 Furthermore, in cases involving university tenure 

decisions, while substantive review of a university’s tenure decision will not be 

conducted by the courts, the procedural safeguards to which an applicant was 

contractually entitled to may be reviewed.22 Dr. Chen, therefore, must plead facts 

that, at a minimum, establish that he and Penn State entered into a contract, Penn 

State breached the procedural safeguards imposed by that contract, and Dr. Chen 

was harmed as a result of the breach. This Court agrees that he has met his burden 

so as to avoid dismissal of this count under Fed. R. Civ. P. 12(b)(6).

First, Dr. Chen plead facts alleging that he and representatives of Penn State 

entered into a contract in which certain procedures would be used in determining 

his tenure eligibility.23 In his proposed second amended complaint, Dr. Chen

attached the contract, entitled “Memorandum of Personal Service,” which was 

 

20 ECF No. 20 at 4.

21 Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 716 (Pa. Super. Ct. 2005), citing J.F. Walker Co., Inc. v. 

Excalibur Oil Group, Inc., 792 A.2d 1269 (Pa. Super. Ct. 2002). 

22 Shepard v. Temple Univ., 948 A.2d 852, 857-8 (Pa. Super. Ct. 2008).

23 ECF No. 16-2 at ¶¶ 144-148 (proposed Second Amended Complaint).

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signed by the Penn State Executive Vice President and University Provost and Dr. 

Chen.24

Second, Dr. Chen pled facts alleging that Penn State breached the contract 

when it failed to follow the procedures the parties had agreed to.25 Specifically, he 

alleges that Penn State failed to devise a way to assess his research, as was 

required in the contract, as evidenced by Penn State’s statement that “it is not 

possible for the Committee to judge the true extent of Prof. Chen’s contribution, as 

most of his papers have five or more authors.”26 Dr. Chen further alleges that Penn 

State failed to provide his full dossier to the review committee, as required by the 

contract, and is specific as to which documents were not included.27 Dr. Chen also 

alleges that, in violation of the contract, Penn State failed to require a fifth-year 

annual review,

28 the College of Earth and Mineral Science failed to hold annual 

group meetings with tenure candidates to discuss the tenure and promotion process 

and expectations,29 and Penn State failed to maintain equity among departments in 

tenure decisions.30

 

24 ECF No. 16-7.

25 Id. at ¶ 149.

26 Id. at ¶ 154.

27 Id. at ¶ 156.

28 Id. at ¶ 160.

29 Id. at ¶ 165.

30 Id. at ¶ 174-178.

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Lastly, Dr. Chen alleges that he suffered damages as a result of Penn State’s 

breach of the contract. Specifically, Dr. Chen alleges that he was denied tenure and 

promotion.31

In its motion to dismiss the amended complaint, Penn State first argues that 

Dr. Chen’s allegations refer to policies that are either permissive as opposed to 

mandatory or insufficiently definite to constitute legally enforceable terms.32 In its 

reply brief to Dr. Chen’s brief in opposition to Penn State’s motion to dismiss the 

amended complaint, however, Penn State concedes that its policies are “generally 

enforceable.”33 Penn State further argues that Dr. Chen’s factual pleadings do not 

sufficiently establish a breach of contract. The allegations Penn State points to in 

support of its argument, however, are not the factual allegations in support of Dr. 

Chen’s breach of contract claim and are only used by Dr. Chen as peripheral 

statements made to strengthen his factual allegations. 

Clearly, Dr. Chen’s pleadings constitute more than “[t]hreadbare recitals of 

the elements of a cause of action, supported by mere conclusory statements . . . ”

34

 

Whether or not Penn State’s actions, as pled by Dr. Chen, constitute a breach of 

contract will be decided in the fullness of time as this litigation progresses.

 

31 Id. at ¶ 187.

32 ECF No. 15.

33 ECF No. 19.

34 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Penn State further argues that because Dr. Chen failed to include the 

Memorandum of Service in the amended complaint, granting the motion for leave 

to amend the complaint would cause “undue delay.”35 While the paragraphs and 

Memorandum of Service Dr. Chen seeks to add certainly bolster the allegations he 

made in the amended complaint, he nevertheless adequately pled facts that the 

parties agreed to follow the policies at issue and that Penn State breached its 

contract.36 Furthermore, this Court has undertaken the analysis of whether Dr. 

Chen’s breach of contract claim is adequately pled in the instant Memorandum. 

Granting the motion for leave to amend the pleadings will not cause further delay 

as the parties need not brief “the issues regarding the defects in [Dr. Chen’s] 

breach of contract claim” yet again.37

IV. CONCLUSION

In accordance with the foregoing analysis, Dr. Chen’s motion for leave to 

amend the amended complaint38 is granted and Penn State’s motion to dismiss39 is 

denied as moot, as to the amended complaint. Any future motion to dismiss Count 

V of the second amended complaint for failure to state a claim upon which relief 

may be granted will be dismissed in accordance with this Memorandum. 

 

35 ECF No. 20.

36 ECF No. 10 at ¶¶ 144-146.

37 ECF No. 20 at 6. 

38 ECF No. 16.

39 ECF No. 14.

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An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

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