Yoshimura v. EOS Accountants, LLP et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MIKA YOSHIMURA,
Plaintiff,
v.
EOS ACCOUNTANTS, LLP;
MASANOBU TSUCHIYA; ALEX
KITAJIMA; AND KAREN HESS,
Defendants.
CIV. NO. 26-00072 JMS-RT
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS, ECF NO. 8
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS, ECF NO. 8
Under Federal Rule of Civil Procedure 12(b)(6), Defendants EOS
Accountants, LLP; Masanobu Tsuchiya; Alex Kitajima; and Karen Hess
(collectively, “Defendants”) move to dismiss Plaintiff Mika Yoshimura’s
(“Plaintiff” or “Yoshimura”) Complaint. ECF No. 8. Defendants’ Motion to
Dismiss relies almost entirely on incorporating by reference a November 15, 2022
offer letter (the “offer letter”) from Defendant Masanobu Tsuchiya to Plaintiff. See
ECF No. 8-1 at PageID.110 (motion); ECF No. 8-3 (offer letter). The Motion
argues that the Complaint’s breach of contract claim fails because it is inconsistent
with the offer letter, and the promissory estoppel claim is barred by the parole
evidence rule because the claim contradicts the terms of the offer letter. The
Motion then argues that all the other counts (sounding in illegal employment
discrimination and resulting emotional distress) fail because they “are all
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inextricably derived from [Plaintiff’s] breach of contract claim.” ECF No. 8-1 at
PageID.113. As explained to follow, however, the court cannot incorporate the
offer letter by reference. And without the offer letter, Defendants’ Motion
necessarily fails.
“Generally, district courts may not consider material outside the
pleadings when assessing the sufficiency of a complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d
988, 998 (9th Cir. 2018) (citation omitted). Under Rule 12(b)(6), the court accepts
as true the well-pleaded factual allegations of a complaint and construes them in
the light most favorable to the nonmovant. See, e.g., Steinle v. City & County of
San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019). Although the offer letter was
not attached to the Complaint, Defendants rely on an exception to the rule:
“incorporation-by-reference, [which] is a judicially created doctrine that treats
certain documents as though they are part of the complaint itself.” Khoja, 899 F.3d
at 1002. Defendants cite Branch v. Tunnel, 14 F.3d 449, 453–54 (9th Cir. 1994),
overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119
(9th Cir. 2002), for the proposition that a court may consider evidence at a motion
to dismiss stage “if the complaint specifically refers to the document and if its
authenticity is not questioned” and if the document is central to a plaintiff’s claim.
And the Motion to Dismiss notes that a court may treat such a document as “part of
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the complaint, and thus may assume that its contents are true for purposes of a
motion to dismiss under Rule 12(b)(6).” ECF No. 8-1 at PageID.110–111 n.1
(quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)).
“The [incorporation-by-reference] doctrine prevents plaintiffs from
selecting only portions of documents that support their claims, while omitting
portions of those very documents that weaken—or doom—their claims.” Khoja,
899 F.3d at 1002 (citation omitted). Nevertheless, “[a]lthough the doctrine is
straightforward in its purpose, it is not always easy to apply.” Id. For example, the
Ninth Circuit “has held that ‘the mere mention of the existence of a document is
insufficient to incorporate the contents of a document’ under Ritchie.” Id. (quoting
Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010)). But it can be
proper to incorporate documents if a claim “necessarily depended on them” or
“were premised” on them. Id. (citations omitted).
“However, if the document merely creates a defense to the well-pled
allegations in the complaint, then that document did not necessarily form the basis
of the complaint.” Id. “Otherwise, defendants could use the doctrine to insert their
own version of events into the complaint to defeat otherwise cognizable claims.”
Id. (citations omitted). That is, a court cannot “assume the truth of an incorporated
document if such assumptions only serve to dispute facts stated in a well-pleaded
complaint.” Id. at 1003. “[T]he doctrine is not a tool for defendants to short-
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circuit the resolution of a well-pleaded claim.” Id. And so, Khoja cautioned courts
about what inferences it may draw from incorporated documents, “consistent with
the prohibition against resolving factual disputes at the pleading stage.” Id.
(citations omitted). Similarly, “[j]ust because [a] document itself is susceptible to
judicial notice does not mean that every assertion of fact within that document is
judicially noticeable for its truth.” Id. at 999.
Applying the doctrine here, Plaintiff’s claims do not “necessarily
depend” on the offer letter. Nor are her claims “premised” on it. Although the
offer letter is mentioned a few times (see, e.g., ECF No. 1-2 at PageID.14, 20, 21),
Plaintiff’s claims are broader—they allege that Defendants made promises beyond
the written terms of the letter,1 and violated the law irrespective of the offer letter.2
Plaintiff’s claims are not premised on a breach of the terms of the offer letter.
Rather, Defendants are using the offer letter as a basis for their defense, and to
contradict the plausible allegations of a well-pled complaint—inconsistent with the
incorporation-by-reference doctrine. See Khoja, 899 F.3d at 1003 (explaining that
1 See, e.g., ECF No. 1-2 at PageID.23 (“Based on that assurance, Yoshimura reasonably
expected to be promoted to partner at the start of the next EOS fiscal year”); id. at PageID.26
(“On September 25, 2023 . . . Usui again confirmed that EOS’s promise to Yoshimura of
partnership consideration was derailed by Tsuchiya”); id. at PageID.32 (“EOS made a binding
promise to Yoshimura to hire her as a Partner, and to consider her for equity partnership within a
couple of years.”).
2 See, e.g., ECF No. 1-2 at PageID.26–27 (unlawful gender-based discrimination,
intentional infliction of emotional distress); id. at PageID.28–31 (gender discrimination,
retaliation, intentional infliction of emotional distress).
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defendants may not use an incorporated document “to insert their own version of
events into the complaint”). Defendants are attempting to use the doctrine as “a
tool . . . to short-circuit the resolution” of well pleaded claims.3 Id. Accordingly,
Defendants’ Motion to Dismiss, ECF No. 8, is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 13, 2026.
3 Indeed, Defendants’ Motion often violates the principle that, under Rule 12(b)(6), the
court accepts the well-pleaded factual allegations of a complaint and construes them in the light
most favorable to the nonmovant. See, e.g., Steinle v. City & County of San Francisco, 919 F.3d
1154, 1160 (9th Cir. 2019). Instead, Defendants construe the allegations in the light most
favorable to Defendants. For example, the Motion states that “Plaintiff’s practice undisputably
operated at a net loss and she was unable to increase her revenue.” ECF No. 8-1 at PageID.111
(citing paragraphs 67 and 94 of the Complaint). But paragraph 67 in this regard alleges “[o]n
September 25, 2023 . . . Usui also raised for the first time that Yoshimura’s gross profit was too
low as an additional reason for not considering her promotion to partner as promised. . . .” ECF
No. 1-2 at PageID.26 ¶ 67. And paragraph 94 alleges in full:
On October 31, 2024 Yoshimura received a performance review.
This was after raises and promotions had been finalized for
everyone, including Yoshimura. But the review continued to focus
on pretextual purported shortcomings.
Id. at PageID.32 ¶ 94. Elsewhere, the Motion states that “During her two years at EOS, Plaintiff
was not promoted to become an income partner, even though EOS has and continues to offer
income partnership to other qualified and eligible female employees.” ECF 8-1 at PageID.112
(citing paragraph 52 of the Complaint). But paragraph 52 alleges in full:
EOS has no female equity partners. Instead, its few female
partners are all employed, and the vast majority of its
female professionals are relegated to lesser titles of
Principal or Senior Manager.
Id. at PageID.23 ¶ 52.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
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