NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOONHEE JANG, individually, and on 

behalf of all others similarly situated, 

Plaintiff-Appellant, 

 v. 

E. I. DU PONT DE NEMOURS & 

COMPANY, 

Defendant-Appellee.

No. 15-17431 

D.C. No. 5:15-cv-03719-NC 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Nathanael M. Cousins, Magistrate Judge, Presiding

Argued and Submitted April 21, 2017

San Francisco, California

Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and BAYLSON,**

District Judge.

Soonhee Jang (“Jang”) appeals the district court’s decision to dismiss her 

claims against E.I. du Pont de Nemours and Company’s (“Du Pont”) for breach of 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Michael M. Baylson, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation.

FILED

AUG 3 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

contract and violation of California’s Unfair Competition Law (“UCL”). We have 

jurisdiction under 28 U.S.C. § 636(c)(3). We review the district court’s determination 

de novo,

1

and we AFFIRM.2 

The pertinent Paragraph of the disputed Contract, which the parties agree is 

governed by Delaware law, states,

Termination of Employment . . . Due to Lack of Work

If you are an active employee for six months following 

the Date of Grant, the Options will be exercisable 

through the date that is one year after the date of 

your termination of employment, or, if earlier, the 

Expiration Date set forth above. After that date, any 

unexercised Options will expire. Any unvested 

Options as of the date of termination will continue to 

vest in accordance with the Vesting Schedule set forth 

above.

(emphasis added). 

Jang was terminated from DuPont in June 2014, at which point some of the 

Options she had been awarded were not scheduled to vest until a time that was more 

 

1 Dismissals for failure to state a claim under Federal Rule of Civil Procedure 

12(b)(6), In re Cutera Sec. Litig., 610 F.3d 1103, 1107 (9th Cir. 2010), and 

“determinations of whether contract language is ambiguous,” U.S. Cellular Inv. 

Co. v. GTE Mobilnet, Inc., 281 F.3d 929, 934 (9th Cir. 2002), are reviewed de 

novo. 

2 We agree with Jang, over DuPont’s objections, that she did not waive her 

argument that the employment Contract was ambiguous, since (1) she raised this 

argument as an alternative argument in her opposition to DuPont’s motion to 

dismiss, (2) she raised this argument at oral argument, and (3) the district court 

made an explicit finding that the Contract was not ambiguous. 
3 

than one year after June 2014. She claims that DuPont’s refusal to permit her to 

exercise those Options amounts to a breach of contract, for which she is entitled to 

damages and equitable relief. 

While DuPont’s Contract is certainly not a model of clarity, we hold, applying 

principles of Delaware corporate law, that the Contract is not ambiguous, and that it is 

logically capable of only DuPont’s interpretation.

Rhone-Poulenc Basic Chemicals Co. v. Am. Motorists Ins. Co., 616 A.2d 1192 

(Del. 1992) is the leading Delaware case regarding determinations of contractual 

ambiguity, and articulates the following “objective person” test:

A contract is not rendered ambiguous simply because the 

parties do not agree upon its proper construction. Rather, 

a contract is ambiguous only when the provisions in 

controversy are reasonably or fairly susceptible of 

different interpretations or may have two or more 

different meanings. Ambiguity does not exist where the 

court can determine the meaning of a contract without 

any other guide than a knowledge of the simple facts on 

which, from the nature of language in general, its 

meaning depends. Courts will not torture contractual 

terms to impart ambiguity where ordinary meaning 

leaves no room for uncertainty. The true test is not what 

the parties to the contract intended it to mean, but what a 

reasonable person in the position of the parties would 

have thought it meant.

Id. at 1196 (citations and quotation marks omitted). 

Applying the Rhone-Poulenc test, it is clear that the Contract is susceptible to 

only DuPont’s interpretation. That is, as the district court concluded, the term “any” 
4 

in “any unexercised Options will expire after [one year from the termination date]” 

refers both to “unexercised Options” that have already vested, and to “unexercised 

Options” that have not yet vested. While Jang is correct that unvested options are not 

exercisable, there is no basis under Delaware law to conclude that a contract cannot 

provide for the expiration of a stock option before it vests, for example before it is 

exercisable. 

Nor is there any legal principle prohibiting the expiration of options before their 

vesting. See, e.g., Butvin v. DoubleClick, Inc., 2001 WL 228121, at *9 (S.D.N.Y. 

Mar. 7, 2001), aff’d, 22 F. App’x 57 (2d Cir. 2001) (applying Delaware corporate law, 

and explaining that an employee “ha[s] no ownership interest in stock options before 

they vest[]” and therefore an employee with unvested stock options “cannot argue that 

he had been deprived of anything to which he was entitled”). Here, even if the phrase 

“any unexercised Options will expire” did, as Jang contends, refer only to vested 

Options, then any unvested Options that subsequently vested after one year from her 

termination—“in accordance with the Vesting Schedule”—would be meaningless, 

because they would simply become “unexercised Options” that had already expired. 

In that case, Jang could not successfully argue that she was denied the benefit of the 

unvested Options, because they were a benefit to which she had never been entitled in 

the first place. 
5 

Concluding that the Contract is susceptible only to DuPont’s interpretation does 

not, as Jang contends, render the last sentence of the Paragraph superfluous. Instead, 

the only logical function of the last sentence of the Paragraph is to explain that 

Options that had not vested by the date of Jang’s termination would continue to vest 

until one year after her termination, such that she would be entitled to exercise any 

Options that vested in that one-year window. 

Accordingly, the district court properly dismissed Jang’s breach of contract 

claim. See VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 615 (Del. 2003) 

(A trial court may dismiss a claim for failure to state a claim upon which relief can be 

granted if it “appears with reasonable certainty that the plaintiff cannot prevail on any 

set of facts which might be proven to support the allegations in the complaint.”). 

Because, as Jang concedes, her UCL claim is derivative of her breach of contract 

claim, that claim was also properly dismissed. 

AFFIRMED.