throbber
FILED
`United States Court of Appeals
`Tenth Circuit
`UNITED STATES COURT OF APPEALS
`
`
`April 30, 2021
`FOR THE TENTH CIRCUIT
`
`_______________________________________
`Christopher M. Wolpert
`Clerk of Court
`
`
`
`No. 20-4061
`(D.C. Nos. 2:12-CV-00970-RJS &
`2:14-CV-00206-RJS)
`(D. Utah)
`
`BEUS GILBERT PLLC,
`
` Plaintiff,
`
`v.
`
`DONALD L. ROBERTSON TRUST,
`
`
`
`
`v.
`
`BRIGHAM YOUNG UNIVERSITY,
`
`
`
`
`Defendant Crossclaimant -
`Appellant,
`
`Defendant Crossclaim
`Defendant - Appellee.
`________________________________________
`
`ORDER AND JUDGMENT*
`__________________________________________
`
`Before TYMKOVICH, Chief Judge, EBEL and BACHARACH, Circuit
`Judges.
`
`___________________________________________
`
`
`
`This case arises out of the discovery of the COX-2 enzyme. The
`
`discovery proved lucrative, leading three biochemists to claim partial
`
`credit. Among them was Dr. Donald L. Robertson, who allegedly helped
`
`
`*
`This order and judgment does not constitute binding precedent except
`under the doctrines of law of the case, res judicata, and collateral estoppel.
`But the order and judgment may be cited for its persuasive value if
`otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
`
`
`

`

`discover the enzyme while working as a biochemistry professor at Brigham
`
`Young University. The discovery was shared with a major pharmaceutical
`
`company, which used the information to develop a blockbuster drug called
`
`“Celebrex.” BYU sued the pharmaceutical company and settled in 2012 for
`
`$450 million.
`
`After paying attorney’s fees, BYU kept 55% for itself and agreed to
`
`distribute the other 45% to the biochemists responsible for the discovery.
`
`Dr. Robertson and the two other biochemists disagreed on the allocation,
`
`and litigation ensued.
`
`During the litigation, Dr. Robertson died. His successor in interest,
`
`the Donald L. Robertson Trust, moved for leave to file amended
`
`crossclaims against BYU for breach of contract and misappropriation of
`
`trade secrets. The district court denied the motion, and the Trust appeals.
`
`In deciding this appeal, we conclude that the Trust’s allegations
`
`
`
`
`
`state a valid claim for breach of contract and
`
`show that the limitations period had already expired for a claim
`of misappropriation of trade secrets.
`
`Given these conclusions, we partially affirm and partially reverse the
`
`denial of leave to amend.
`
`I.
`
`The Denial of Leave to Amend
`
`The Trust challenges the denial of leave to amend the crossclaims to
`
`add claims for breach of contract and misappropriation of trade secrets.
`
`
`
`2
`
`

`

`The district court denied the motion as futile, concluding that the amended
`
`claims would not survive a motion to dismiss.
`
`A.
`
`The Standard of Review for Futility
`
`When reviewing a denial of leave to amend, we ordinarily apply the
`
`abuse-of-discretion standard. Johnson v. Spencer, 950 F.3d 680, 720–21
`
`(10th Cir. 2020). But when a district court disallows amendments based on
`
`futility, we conduct de novo review. Id. Here the district court concluded
`
`that the amendments were futile because they would not survive a motion
`
`to dismiss for failure to state a valid claim. So our review is de novo.
`
`Dismissal for failure to state a claim is proper only if the allegations
`
`lack enough facts to “state a claim to relief that is plausible on its face.”
`
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
`
`Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible when
`
`the allegations give rise to a reasonable inference that the defendant is
`
`liable.” Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).
`
`In determining facial plausibility, “we will disregard conclusory
`
`statements and look only to . . . the remaining[] factual allegations . . . .”
`
`Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). But
`
`“specific facts” are unnecessary; the claimant needs only to provide “fair
`
`notice” of the claim and its grounds. Id. at 1192. We credit the “well-pled
`
`factual allegations,” viewing them “in the light most favorable” to the
`
`claimant and in “the context of the entire [crossclaim.]” Evans v. Diamond,
`3
`
`
`
`

`

`957 F.3d 1098, 1100 (10th Cir. 2020) (quoting Peterson v. Grisham, 594
`
`F.3d 723, 727 (10th Cir. 2010)); Ullery v. Bradley, 949 F.3d 1282, 1288
`
`(10th Cir. 2020).
`
`B.
`
`The Proposed Addition of a Crossclaim for Breach of
`Contract
`
`For substantive legal principles on the proposed amendment to the
`
`crossclaim for breach of contract, we apply Utah law. Corneveaux v. CUNA
`
`Mut. Ins. Grp., 76 F.3d 1498, 1506 (10th Cir. 1996). Under Utah law, a
`
`contract claim requires four elements:
`
`1.
`
`2.
`
`3.
`
`4.
`
`the existence of a contract,
`
`the performance by the party seeking recovery,
`
`a breach by the other party, and
`
`the existence of damages.
`
`Am. W. Bank Members, L.C. v. State, 342 P.3d 224, 230–31 (Utah 2014).
`
`The district court denied the adequacy of allegations on the first two
`
`elements: a contract and Dr. Robertson’s performance.1 We disagree with
`
`the district court.
`
`
`BYU does not question satisfaction of the last two elements (a
`1
`contractual breach and the existence of damages).
`
`
`
`
`4
`
`

`

`1.
`
`The Trust plausibly alleged a contract and Dr. Robertson’s
`performance.
`
`In our view, the Trust’s amended crossclaim for breach of contract
`
`
`
`satisfied the first two elements by alleging a contract and Dr. Robertson’s
`
`performance.
`
`a.
`
`The Trust plausibly alleged a contract between Dr.
`Robertson and BYU based on the IP Policies in effect from
`1989 to 1992 and adopted in 1992.
`
`For a contract claim, the Trust must allege a contract between Dr.
`
`Robertson and BYU. The district court regarded the allegations as deficient
`
`for failing to say
`
`
`
`
`
`what the material terms were or
`
`when and how a contract had been formed.
`
`
`
`We disagree because the Trust plausibly alleged that Dr. Robertson
`
`and BYU had entered into implied contracts governed by the IP Policies
`
`
`
`in effect from 1989 to 1992 and
`
`
`
`adopted in 1992.2
`
` 
`
`
`
`
`The complaint refers to “the BYU IP Policy that was in effect from
`2
`1989 through 1992 during the development of COX-2.” See, e.g.,
`Appellant’s App’x vol. 2, at 78–79, ¶¶ 27, 38. The Trust has explained in
`district court and on appeal that this reference encompasses the IP Policy
`adopted in 1992. Id. at 199, 201, 207–210, 225, 229–33; Appellant’s
`Opening Br. at 24, 34; Appellant’s Reply Br. at 2, 8.
`5
`
`
`
`

`

`i.
`
`A contract may be implied.
`
`“An implied contract may arise from . . . personnel policies . . . .”
`
`Cabaness v. Thomas, 232 P.3d 486, 502 (Utah 2010), abrogated on other
`
`grounds by Gregory & Swapp, PLLC v. Kranendonk, 424 P.3d 897 (Utah
`
`2018). Personnel policies create an implied contract if
`
`
`
`the employer communicates a “promise of employment under
`certain terms” to the employee and
`
`the employee performs under the offer.
`
`Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1001–02 (Utah 1991).
`
`
`
`ii.
`
`The alleged facts establish an implied contract under the IP
`Policy in effect between 1989 and 1992.
`
`The Trust plausibly alleged an implied contract under the IP Policy in
`
`effect from 1989 to 1992 by stating the material terms.
`
`The Trust paraphrased the terms but did not attach the IP Policy in
`
`effect before the adoption of the 1992 policy. Attaching the policy was
`
`unnecessary; the Trust needed only to plead the key promises. See T.G.
`
`Slater & Son, Inc. v. Donald P. & Patricia A. Brennan LLC, 385 F.3d 836,
`
`841–42 (4th Cir. 2004) (concluding that a plaintiff had adequately pleaded
`
`a breach of contract without attaching written documentation by pleading
`
`that a defendant had “retained” the plaintiff to work on a real estate
`
`purchase and had agreed to pay “a customary real estate commission for
`
`[the plaintiff’s] services”); Venture Assocs. Corp. v. Zenith Data Sys.
`
`Corp., 987 F.2d 429, 431 (7th Cir. 1993) (“A plaintiff is under no
`6
`
`
`
`

`

`obligation to attach to her complaint documents upon which her action is
`
`based . . . .”); see also 5A Arthur R. Miller, Mary Kay Kane & A. Benjamin
`
`Spencer, Federal Practice and Procedure § 1327 (4th ed. Oct. 2020 update)
`
`(“The provision for incorporation of exhibits in Rule 10(c) is permissive
`
`only, and there is no requirement that the pleader attach a copy of the
`
`writing on which his claim for relief or defense is based.”).
`
`The Trust satisfied this requirement by pleading the key promises of
`
`the IP Policy:
`
`10. The development of COX-2 occurred on BYU’s campus
`between 1989 and 1992.
`
`11. At all times during their employment, in particular during
`the development of COX-2, BYU’s employment agreements with
`Dr. Robertson, Dr. Simmons, and Dr. Xie included the provisions
`of BYU Intellectual Property Policy as it existed at that time.
`
` *
`
` * * *
`
`
`13. Under the IP Policy that was effective from 1989 through
`1992 during the development of COX-2, BYU claimed ownership
`of
`the COX-2
`technology
`as
`the property of BYU.
`
`14. Under the IP Policy that was effective from 1989 through
`1992 during the development of COX-2, BYU has a duty to
`distribute income to the individuals from whom BYU has
`claimed ownership of the COX-2 technology.
`
`Appellant’s App’x vol. 2, at 76.
`
`
`
`7
`
`

`

`The district court concluded that the Trust had needed to allege more
`
`specific facts. We disagree. The Trust’s factual allegations imply two key
`
`promises:
`
`1.
`
`2.
`
`Dr. Robertson promised to work at BYU (Id. ¶ 11) and to
`relinquish ownership of any discoveries like COX-2 (Id. ¶¶ 11,
`13).
`
`BYU promised to employ Dr. Robertson (Id. ¶ 11), to support
`his research (Id. ¶¶ 10–11), and to distribute income to
`employees making discoveries (like COX-2) subject to BYU’s
`ownership (Id. ¶¶ 11, 14).
`
`
`The Trust also adequately alleged the formation of an implied contract
`
`based on these terms because
`
`
`
`BYU had communicated the IP Policy to Dr. Robertson and
`
`
`
`he had accepted the offer by continuing performance.
`
`The Trust alleged communication of the IP Policy in two ways.
`
` 
`
`
`
`First, the Trust alleged that
`
`the IP Policy in existence “at the time” had been “included” in
`the “employment agreement” with BYU (Id. at 76 ¶ 12) and
`
`the IP Policy made key promises. (See p. 7, above.)
`
`
`
`
`
` 
`
`
`These allegations reasonably imply that BYU communicated the terms as a
`
`binding promise to Dr. Robertson: if Dr. Robertson didn’t know the terms
`
`of his employment agreement, how could he have been expected to
`
`comply? See Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1001 (Utah
`
`1991) (“[I]f an employee manual is to be considered part of an employment
`
`contract, the terms should be considered terms of a unilateral contract.”).
`8
`
`
`
`

`

`
`
`Second, the Trust attached correspondence from Dr. Robertson,
`
`stating his belief that “[t]he acknowledgment of the participants in this
`
`[COX-2] discovery [was] consistent with research policies which [were]
`
`firmly established at both universities and in industry for the
`
`acknowledgment of contributions to any discovery.” Appellant’s App’x,
`
`vol. 2 at 136. Dr. Robertson’s reference to the “firmly established” IP
`
`Policy suggests that BYU had communicated the IP Policy to him by 1989.
`
`The Trust also alleged that Dr. Robertson had accepted the implied
`
`contract by staying at BYU and “faithfully performing all that was required
`
`of him under his employment agreement” between 1989 and 1992. Id. at 75
`
`¶ 7, 76 ¶¶ 15, 16. So the Trust adequately alleged an implied contract
`
`governed by the IP Policy in effect between 1989 and 1992.
`
`In reaching a contrary result, the district court cited three district
`
`court opinions with more specific facts. One opinion followed a bench
`
`trial, a second opinion decided a summary-judgment motion, and a third
`
`opinion recognized only that the plaintiff had adequately alleged a valid
`
`claim. See Fenn v. Yale Univ., 283 F. Supp. 2d 615, 620 (D. Conn. 2003)
`
`(opinion after a bench trial); Univ. of W. Va. Bd. of Trs. v. VanVoorhies, 84
`
`F. Supp. 2d 759, 771 (N.D. W. Va. 2000) (opinion denying summary
`
`judgment); Charest v. President & Fellows of Harvard Coll., 2016 WL
`
`614368, at *11–12 (D. Mass. Feb. 16, 2016) (opinion denying in part a
`
`motion to dismiss). None of these opinions suggested a baseline for
`9
`
`
`
`

`

`specificity in a complaint or crossclaim. At this stage, the allegations need
`
`only to support a “reasonable inference” of a contract and its terms.
`
`Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). So the three
`
`cited opinions shed little light on the adequacy of the Trust’s allegations.
`
`iii. The alleged facts establish an implied contract under the IP
`Policy adopted in 1992.
`
`The Trust also plausibly alleged an implied contract based on the IP
`
`Policy adopted in 1992.
`
`First, the Trust alleged the terms of the 1992 IP Policy by attaching a
`
`copy. Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
`
`Second, the Trust alleged that the terms had become effective as an
`
`implied contract: BYU had communicated the terms through a binding
`
`promise to Dr. Robertson, and Dr. Robertson accepted the terms by
`
`remaining at BYU until 1995.
`
`The Trust adequately alleged communication of the terms as a
`
`binding promise because the 1992 IP Policy had expressly required faculty
`
`compliance. See p. 8, above. For example, the 1992 IP Policy stated:
`
`“Intellectual property . . . developed by University personnel within their
`
`field of expertise and/or scope of employment at the University . . . [is] the
`
`property of the University.” Appellant’s App’x vol. 2, at 86. The 1992 IP
`
`Policy also stated that it applied to all faculty, implying that
`
`
`
`10
`
`

`

`
`
`BYU was publishing the policy to all faculty (including Dr.
`Robertson),
`
`all faculty had been aware of the policy, and
`
`all faculty had regarded the policy as a binding promise.
`
`The Trust also adequately alleged that Dr. Robertson had accepted
`
`
`
`
`
`the implied contract by staying at BYU after the publication of the 1992 IP
`
`Policy. See p. 9, above. So the Trust adequately alleged an implied contract
`
`based on the IP Policy adopted in 1992.
`
`iv. The Trust did not plausibly allege Dr. Robertson’s entry into
`a contract under the 2001 IP Policy.
`
`The Trust also claimed, in the alternative, that BYU had breached a
`
`contract governed by the 2001 IP Policy.3 The district court properly
`
`rejected this claim. By the time that BYU had adopted this policy, Dr.
`
`Robertson had left; and there’s nothing in the allegations to support a
`
`contract between BYU and a former professor.
`
`The Trust makes three arguments for a contract under the 2001 IP
`
`Policy:
`
`1.
`
`
`2.
`
`BYU and two other biochemists pleaded the creation of a
`contract based on the 2001 IP Policy.
`
`BYU admitted that the 2001 IP Policy had created a contract
`when moving for a stay.
`
`
`
`The Trust also alleged a contract based on the IP Policy adopted in
`3
`2000; but on appeal, the Trust treats this policy as identical to the 2001
`policy.
`
`
`
`
`11
`
`

`

`3.
`
`The district court implicitly recognized the contractual nature
`of the 2001 IP Policy by using it to stay the litigation on other
`biochemists’ claims.
`
`These arguments are not persuasive.4
`
`
`First, the Trust argues that BYU and two other biochemists admitted
`
`the binding nature of the 2001 IP Policy. For example, BYU pleaded that
`
`the 2001 IP Policy should determine the parties’ rights. Appellant’s App’x
`
`vol. 1, at 151–54, ¶¶ 19–21, 28, 31, 35 (BYU’s crossclaim). But Dr.
`
`Robertson denied the binding nature of the 2001 IP Policy and its
`
`procedures. Appellee’s Supp’l App’x vol. 1, at 57–59 ¶¶ 19–21, 28, 31, 35
`
`(Dr. Robertson’s response to BYU’s crossclaim). So the Trust can’t rely on
`
`BYU’s invocation of the 2001 IP Policy. Nor can the Trust rely on the
`
`pleadings of other biochemists, for their relationships with BYU don’t
`
`affect the terms reached with Dr. Robertson.
`
`Second, the Trust argues that BYU admitted the binding nature of the
`
`2001 IP Policy by moving for a stay. But BYU sought a stay only in the
`
`alternative, arguing that if the district court were to allow amendment, the
`
`terms of the 2001 IP Policy would require a stay for alternative dispute
`
`resolution. By seeking a stay in the alternative, BYU did not concede a
`
`contract with Dr. Robertson.
`
`
`The Trust also briefly argues that the 2001 IP Policy applies because
`4
`it was in effect when BYU received the settlement funds. But the Trust
`does not explain the relevance of this timing or say how Dr. Robertson
`could have performed under a contract formed after he had left BYU.
`12
`
`
`
`

`

`Third, the Trust contends that the district court based a separate stay
`
`order on the 2001 IP Policy. But the stay order did not implicitly
`
`characterize the 2001 IP policy as a contract: the two other biochemists did
`
`not oppose the stay, and BYU relied in part on a desire to mediate.
`
`So the Trust did not plausibly allege a contract governed by the 2001
`
`IP Policy.
`
`* * *
`
`The Trust plausibly alleged that Dr. Robertson and BYU had entered
`
`into implied contracts governed only by the IP Policies
`
`
`
`
`
`in effect between 1989 and 1992 and
`
`adopted in 1992.
`
`The Trust plausibly alleged Dr. Robertson’s performance
`under the implied contracts.
`
`Dr. Robertson’s performance constitutes an element of the contract
`
`b.
`
`claim, so the Trust needed to plead his performance. The Trust did so in
`
`part by generally alleging that Dr. Robertson had “faithfully performed all
`
`that was required of him under his employment agreement with BYU,
`
`including the BYU IP Policy that was effective from 1989 through 1992
`
`during the development of COX-2.” Appellant’s App’x vol. 2, at 76 ¶ 15.
`
`The Trust elaborated with three specific factual allegations:
`
`1.
`
`“Dr. Robertson [had begun] teaching as a professor of
`biochemistry at BYU in 1980” and had “left BYU in 1995.” Id.
`at 75–76 ¶¶ 7, 16.
`
`
`
`13
`
`

`

`2.
`
`
`“Dr. Robertson [had] stated ‘the discovery of COX-2 was
`actually between Dr. Simmons, Dr. Xie, and myself.’” Id. at 78
`¶ 24 (quoting id. at 134).
`
`“Dr. Robertson [had] advised BYU in 2013 and 2014 that he
`was a developer of the COX-2 technology.” Id. at 78 ¶¶ 24–25.
`
`These factual allegations incorporated a letter from Dr. Robertson,
`
`3.
`
`where he explained his contributions to the discovery of COX-2 and gave
`
`details about his experiments and support for another biochemist’s work.
`
`Id. at 133–35; see also id. at 78 ¶ 24 (referring to the exhibit with this
`
`explanation). Similarly, the Trust alleged that BYU had received other
`
`correspondence showing Dr. Robertson’s contributions to the discovery of
`
`the enzyme, including his supervision of relevant research, his provision of
`
`cell lines, the use of his laboratory and equipment, and his role as a
`
`principal investigator in the research leading to discovery of COX-2. Id. at
`
`138–39; see also id. at 78 ¶ 25 (referring to the exhibit with this
`
`explanation).
`
`
`
`The district court considered the allegations inadequate for two
`
`reasons:
`
`1.
`
`2.
`
`The Trust had not alleged the terms of the agreement.
`
`The Trust had not alleged the actions taken by Dr. Robertson
`“to comport with those terms.”
`
`Id. at 273. We disagree.
`
`
`
`14
`
`

`

`First, the district court ruled that with no more factual allegations
`
`about the contractual terms, “the Trust’s conclusory allegation that
`
`Robertson [had done] ‘all he was required to do’ [fell] short of plausibly
`
`pleading contract performance.” Id. But the Trust did adequately plead the
`
`contractual terms. See Part I(B)(1)(a)(i)–(iii), above.
`
`Second, the district court concluded that the Trust had not alleged
`
`satisfaction of Dr. Robertson’s contractual obligations. In arriving at this
`
`conclusion, the district court reasoned that the Trust hadn’t framed its
`
`allegations about Dr. Robertson’s work as “conduct undertaken to fulfill
`
`his performance obligations under any contract.” Appellant’s App’x vol. 2,
`
`at 273.
`
`We disagree, for we view allegations “in the light most favorable” to
`
`the claimant and in “the context of the entire [crossclaim.]” Evans v.
`
`Diamond, 957 F.3d 1098, 1100 (10th Cir. 2020) (quoting Peterson v.
`
`Grisham, 594 F.3d 723, 727 (10th Cir. 2010)); Ullery v. Bradley, 949 F.3d
`
`1282, 1288 (10th Cir. 2020); see pp. 3–4, above. The Trust incorporated the
`
`specific allegations into the breach-of-contract claim, Appellant’s App’x
`
`vol. 2, at 78 ¶ 26, and cited these allegations on the element of
`
`performance. Appellee’s App’x vol. 1, at 235. Nothing more was necessary.
`
`
`
`15
`
`

`

`BYU defends this ruling, arguing that the Trust failed to allege Dr.
`
`Robertson’s disclosure of his contributions to BYU and entry into a
`
`distribution agreement.5 This argument fails legally and factually.
`
`The argument fails legally because a claimant need not specifically
`
`allege satisfaction of every contractual obligation. See Khalik v. United Air
`
`Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (stating that specific factual
`
`allegations are unnecessary in the complaint). The Trust generally alleged
`
`Dr. Robertson’s performance and specifically alleged how he had
`
`contributed to the discovery of the enzyme. See Part I(B)(1)(b), above.
`
`These allegations suffice.
`
`
`
`The argument also fails factually because the Trust alleged that BYU
`
`had considered and rejected Dr. Robertson’s status as a potential
`
`developer.6 BYU argues that his disclosure was too late to patent discovery
`
`of the enzyme. Appellee’s Resp. Br. at 39–40. But BYU does not
`
`
`Relying on evidence outside the pleadings, BYU also argues that Dr.
`5
`Robertson did not actually disclose his role as developer. But that’s an
`issue for summary judgment, and the district court did not convert this
`motion into one for summary judgment. See Appellant’s App’x vol. 2, at
`274 n.85 (excluding consideration of material outside the pleadings
`because no party had moved for conversion of the motion to one for
`summary judgment).
`
` 6
`
`BYU also makes two other arguments, one about the IP Policy
`
`adopted in 2001 and another about the IP Policy in effect from 1989 to
`1992.
`
`
`
`
`16
`
`

`

`
`
`
`
`
`
`
`
`support this argument with citations to the IP Policy adopted in
`1992 or
`
`suggest that it would have claimed a patent for the enzyme if
`Dr. Robertson had disclosed his role earlier.
`
`2.
`
`The Trust’s allegations go beyond those of the claimants in
`BYU’s cited authorities.
`
`Finally, BYU argues broadly that the Trust’s allegations don’t
`
`adequately state a contract claim. But BYU’s cited authorities do not apply.
`
`For example, BYU cites Cai v. Huntsman Corp., 810 F. App’x 639, 643
`
`(10th Cir. 2020) (unpublished). But in Cai, the plaintiff never claimed to
`
`be an employee. See id. Here, the Trust alleged that BYU had employed Dr.
`
`Robertson.
`
`BYU’s other cited authorities are non-binding opinions where the
`
`claimant didn’t allege the content of any contractual provisions or identify
`
`
`First, BYU argues that this duty of disclosure is imposed by the IP
`
`Policy adopted in 2001. But we have elsewhere rejected the Trust’s
`reliance on this policy. See pp. 11–13, above.
`
`Second, BYU argues that the Trust couldn’t deny an obligation for
`
`express disclosure under the IP Policy in effect from 1989 to 1992:
`“Notably, the Trust does not allege that any of the policies it argues could
`theoretically apply impose anything less than express disclosure
`obligations on a would-be developer.” Appellee’s Resp. Br. at 37–38. For
`this argument, BYU supplies no explanation or support.
`
`The Trust could allege that the IP Policy in effect from 1989 to 1992
`
`had not expressly required disclosure of inventions bearing commercial
`potential. After all, BYU has not pointed to anything in the 1989–1992 IP
`Policy requiring such a disclosure.
`
`
`
`
`17
`
`

`

`a provision that had been breached. See Estate of Bass v. Regions Bank,
`
`Inc., 947 F.3d 1352, 1358 (11th Cir. 2020) (stating that the plaintiff did not
`
`allege “any general or specific provision of any contract that [defendant]
`
`might have breached”); Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599,
`
`603–04 (7th Cir. 2009) (stating that the pleading “contain[ed] no facts
`
`concerning: (1) what, if any, promises the University made to [the
`
`plaintiff]; (2) how these promises were communicated; (3) what [the
`
`plaintiff] promised in return; or (4) how these promises created an implied
`
`contract”); Guajardo v. JP Morgan Chase Bank, N.A., 605 F. App’x 240,
`
`244 (5th Cir. 2015) (unpublished) (stating that the “[p]laintiffs failed to
`
`allege the manner in which” the defendant had breached the contract or
`
`identify a contractual provision that had been breached); Northampton
`
`Rest. Grp., Inc. v. FirstMerit Bank, N.A., 492 F. App’x 518, 522 (6th Cir.
`
`2012) (unpublished) (concluding that “without the contracts or reference to
`
`specific language, [the plaintiff] ha[d] failed to put forth a plausible claim
`
`for relief”); Cotter v. Newark Hous. Auth., 422 F. App’x 95, 99 (3d Cir.
`
`2011) (unpublished) (stating that the pleadings had alleged no offer and
`
`acceptance because “the offer [had been] rejected in favor of a counter-
`
`offer”). These opinions don’t apply because the Trust did allege how BYU
`
`had breached the contracts.
`
`
`
`18
`
`

`

`C.
`
`The Proposed Addition of a Crossclaim for
`Misappropriation of Trade Secrets
`
`The Trust also sought leave to add a crossclaim for misappropriation
`
`
`
`of trade secrets. The district court concluded that this claim had been time-
`
`barred, and we agree. The district court reasoned that the Trust had waited
`
`to assert this claim until roughly seven months after the limitations period.
`
`The Trust doesn’t question that the limitations period had ended for a new
`
`claim;7 the Trust instead argues that the proposed crossclaim would relate
`
`back to the filing date of the original crossclaims.
`
`But the Trust didn’t make this argument in district court. There
`
`counsel for the Trust said only: “So if there’s a triggering event . . . that’s
`
`well within three years from when he first brought his cross-claims in this
`
`case.” Id. at 228–29 (emphasis added). The Trust didn’t mention the term
`
`“relation back” or present a related argument. Indeed, the district court
`
`observed that it was not addressing possible “relation back” because the
`
`Trust had “not raise[d] or offer[ed] argument on the issue of whether the
`
`trade secret claim relates back to the filing of [Dr.] Robertson’s original
`
`Cross Claim under Rule 15(c).” Id. at 281 n.117.
`
`By failing to raise the issue in district court, the Trust forfeited the
`
`issue. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.
`
`
`The Trust does argue that the limitations period started in June 2012
`7
`rather than in May 2012. But this difference in timing would not affect the
`timeliness of this claim.
`
`
`
`19
`
`

`

`2011). We could ordinarily consider the issue under the plain-error
`
`standard. Id. But the Trust has not urged plain error, so we will not
`
`consider the argument. Id. at 1131. We thus affirm the denial of leave to
`
`add a crossclaim for misappropriation of trade secrets.
`
`II. The Discovery Motion
`
`The Trust also moved for discovery of two items:
`
`1.
`
`the version of the BYU Intellectual Property Policy provided to
`Dr. Robertson in 1980 with his appointment letter and
`
`the version of the BYU Intellectual Property Policy in effect
`from 1989 to 1992.
`The district court denied the motion, and BYU defends the ruling because
`
`2.
`
`the Trust had no pending claim when the court disallowed discovery.
`
`As BYU suggests, discovery would ordinarily be pointless without a
`
`pending claim.8 But as noted above, we are reversing the dismissal with
`
`instructions to grant the Trust’s motion for leave to amend to add a
`
`
`Federal litigants’ discovery is limited to “any nonprivileged matter
`8
`that is relevant to any party’s claim or defense and proportional to the
`needs of the case . . . .” Fed. R. Civ. P. 26(b)(1). A litigant has no right to
`discovery on an unpleaded claim even when discovery is needed to make
`the claim viable. See Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009) (“Because
`respondent’s complaint is deficient under Rule 8, he is not entitled to
`discovery, cabined or otherwise.”).
`
`
`For the first time in its reply brief, the Trust argues that the
`requested discovery would bear on a defense to BYU’s claim. But we do
`“not ordinarily review issues raised for the first time in a reply brief.”
`United States v. RaPower-3, LLC, 960 F.3d 1240, 1250 (10th Cir. 2020)
`(quoting Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000)).
`20
`
`
`
`

`

`crossclaim for breach of contract. Upon the filing of the amended
`
`crossclaim, the district court should reconsider the Trust’s motion for leave
`
`to conduct discovery.
`
`III. The Trust’s Motions to Seal
`
`The Trust’s opening brief, reply brief, and appendix contain
`
`information about Dr. Robertson’s 1980 appointment letter from BYU. The
`
`Trust moved to seal parts of these documents, saying that BYU had
`
`designated these parts as highly confidential. BYU supported the motions,
`
`explaining that it had designated the information as confidential because it
`
`had appeared in Dr. Robertson’s employment file. With this explanation,
`
`BYU cited an unpublished district court order, which protected the
`
`confidentiality of employment files. Hamilton v. Ogden Weber Tech. Coll.,
`
`No. 1:16-CV-00048-JNP-DBP, 2017 WL 5633106, at *5 (D. Utah Nov. 21,
`
`2017).
`
`We deny the Trust’s motions to seal. To obtain an order to seal, the
`
`Trust must “overcome[] a presumption in favor of access to judicial
`
`records by ‘articulat[ing] a real and substantial interest that justifies
`
`depriving the public of access to the records that inform our decision-
`
`making process.’” Sacchi v. IHC Health Servs., Inc., 918 F.3d 1155, 1160
`
`(10th Cir. 2019) (second alteration in original) (quoting Eugene S. v.
`
`Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135–36 (10th Cir.
`
`2011)).
`
`
`
`21
`
`

`

`The parties have not shown a “real and substantial” privacy interest
`
`in the existence or content of Dr. Robertson’s appointment letter. The cited
`
`order served to protect discovery, not seal a court’s docket, and the
`
`considerations differ. See Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir.
`
`2011) (“[T]he parties cannot overcome the presumption against sealing
`
`judicial records simply by pointing out that the records are subject to a
`
`protective order in the district court.”). So the parties have not justified
`
`sealing, and we deny the Trust’s motions.
`
`IV. Conclusion
`
`We reverse the denial of the Trust’s motion for leave to amend to add
`
`a crossclaim for breach of contract. Given the reversal, we remand for
`
`further proceedings. But we affirm the denial of the Trust’s
`
`
`
`
`
`motion for leave to add a crossclaim for misappropriating trade
`secrets and
`
`motion for leave to conduct discovery.
`
`We also deny the Trust’s motions to seal.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Entered for the Court
`
`Robert E. Bacharach
`Circuit Judge
`
`22
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

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