D. Amoco's Motion to Dismiss
1. Motion to Dismiss Federal Claims under Rule 12(b)(6)
Amoco's first basis for its motion to dismiss is that "there is no evidence or even allegation that the relationship between parent and subsidiary is a 'sham"' justifying the setting aside of corporate formalities to allow plaintiff to recover against the parent. It supports this assertion with multiple declarations stating that corporate formalities were observed. The Court declines to take notice of these declarations on a motion to dismiss. See Fed. R. Civ. P. 12(b) (court should limit itself to pleadings). The Court further notes that the complaint adequately charges AC and ATC with alter ego liability at paragraph 60. This portion of the motion to dismiss therefore must be rejected.
Amoco also moves to dismiss the patent infringement claims against them on the basis that the complaint fails to allege any acts constituting infringement on the part of these defendants. The First Amended Complaint clearly does name each of these actors as having actually, contributorily, and by inducement of others, infringed the patents in suit. See First Amended Complaint at P 58, 65 The Complaint does so, however, in a confusingly conclusory manner, accusing each of five defendants of three very different causes of action
on two different patents, all in one conclusory sentence, without adequately specifying the grounds for plaintiff's belief that any of these entities have infringed.
The Federal Rules do not require that the plaintiff plead with particularity the specific patent claims that have been infringed, but the Rules do require that the defendant be given "fair notice of  what the plaintiff's claim is and  the grounds upon which it rests." Conley, 355 U.S. at 47. The plaintiff's shotgun approach is clearly deficient to serve either of these purposes.
The complaint fails to provide fair notice of what the plaintiff's claims are. Each of the five defendants is accused of each of the three different types of infringement: What is labeled as "Count 1" of the complaint actually consists of Counts 1 through 3. It is unclear which of the five is accused of which type of infringement. Within each of the patent "counts," Paragraphs 58 and 65 accuse all defendants of all types of infringement. Paragraphs 59 and 66, after accusing all defendants of making infringing "reagents or kits," specify that certain Gene-Trak products are believed to directly infringe the patents in suit. Paragraphs 60 and 67 allege that Amoco and ATC exercised sufficient control over subsidiaries Gene-Trak and Vysis that Amoco and ATC should be liable for the infringing acts of these subsidiaries. It is unclear whether the subsequent paragraphs should be read as limiting the claims made in paragraphs 58 and 65, or whether they simply provide supporting allegations for certain of these claims without eliminating the claims not supported by those allegations.
Even were there no other deficiencies, this confusion of which claims apply to which defendants would require that the complaint be dismissed with leave to file an amended complaint. See Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal. 1988) (lumping together of multiple defendants in one broad allegation fails to satisfy notice requirement of Rule 8(a)(2)); Van Dyke Ford, Inc. v. Ford Motor Co., 399 F. Supp. 277, 284 (E.D. Wis. 1975) ("Specific identification of the parties to the activities alleged by the plaintiffs is required in this action to enable the defendant to plead intelligently.").
The complaint also fails to provide fair notice of the grounds of the various claims. Rule 8(a)(2) eliminates the needless distinctions and technicalities of code pleading, but still "envisages the statement of circumstances, occurrences, and events in support of the claim . . ." Advisory Committee's 1955 Report, reprinted in 5 Charles Alan Wright et al., Federal Practice and Procedure § 1201 at 67 n. 11 (1990). The Conley standard, that a complaint should "not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," 355 U.S. at 45-46, "has never been taken literally," Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir. 1984) (Posner, J.). A motion to dismiss under Rule 12(b)(6) requires the Court to decide whether the facts outlined or reasonably foreshadowed in the complaint could entitle the plaintiff to relief. A conclusory assertion of entitlement to relief is insufficient because it provides the Court no information with which to determine whether the plaintiff's grievance arises under a legal theory for which the law affords a remedy. Even under liberal notice pleading, the plaintiff must provide facts that "outline or adumbrate" a viable claim for relief, not mere boilerplate sketching out the elements of a cause of action. Sutliff, 727 F.2d at 654; Roth v. United States, 952 F.2d 611, 613 (1st Cir. 1991) ("In performing the requisite tamisage and assessing sufficiency, a court must accept as true the complaint's well-plead factual averments, excluding, however, bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation.") (internal citation and quotation marks omitted); 5 Charles Alan Wright et al., Federal Practice and Procedure § 1216 at 156-59 (1990) (complaint must contain "either direct allegations on every material point necessary to sustain a recovery on any legal theory . . . or allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial").
The requirements of Rule 11 further buttress this conclusion. Rule 11 requires the signatory to a complaint to certify that "the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed. R. Civ. P. 11(b)(3). This certification requirement imposes "an affirmative duty to conduct a reasonable inquiry into the facts and the law before filing. . ." Business Guides, Inc. v. Chromatic Communications Enter., 498 U.S. 533, 551, 112 L. Ed. 2d 1140, 111 S. Ct. 922 (1991) (upholding sanctions against party for filing complaint of copyright infringement later disclosed to have no factual basis). The answering defendant faces a parallel requirement to certify that "the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief." Fed. R. Civ. P. 11(b)(4). Rule 11's requirement of certification of the well-foundedness of the factual contentions of the complaint would be meaningless unless Rule 8(a)(2) required some minimum allegations of fact to support the claim. Similarly, the requirement that the defendant investigate and certify its denials of the plaintiff's factual contentions would be meaningless if the plaintiff were not required to make any factual contentions in its complaint. In short, the purpose and design of Rule 11 compel the conclusion that Rule 8(a)(2) requires more than empty boilerplate. See Zaldivar v. City of Los Angeles, 780 F.2d 823, 830 (9th Cir. 1986) (the two major problems the rule aims to resolve are "frivolous filings" and "misusing judicial procedures as a weapon for personal or economic harassment"); Advisory Committee Note to 1983 Amendment, 97 EF.R.D.F 198-99 (1983) (rule imposes duty to conduct "prefiling inquiry into both the facts and the law"; district courts encouraged to pay "greater attention . . . to pleading and motion abuses . . . to streamline the litigation process by lessening frivolous claims or defenses").
As a complaint for direct or contributory infringement, the complaint is deficient as to all but Gene-Trak: it charges Gene-Trak with production of infringing products (P 59, 66), but is devoid of any reference to infringing products (or contributorily infringing components) produced by the other defendants. AC and ATC are adequately charged with alter ego liability (P 60); ATC is adequately charged with inducement infringement.
Vysis is adequately charged with successor liability for Gene-Trak's infringement (P 6). Beyond this, the complaint fails to state a recognizable claim for relief.
If the plaintiff desires to replead some or all of its claims, the plaintiff's amended complaint should be revised as follows to conform with the requirements of notice pleading:
1. Each count of the complaint should be limited to one cause of action. Direct infringement, contributory infringement, and inducement of infringement are three different causes of action.
2. Defendants may be accused of a violation only by supporting allegations that specifically refer to that defendant. Each supporting allegation should be stated in a numbered paragraph limited to one transaction or occurrence. Fed. R. Civ. P. 10(b) ("All averments of a claim . . . shall be made in numbered paragraphs, the contents of each of which shall be limited in so far as practicable to a statement of a single set of circumstances . . .").
3. The supporting allegations must provide the basis for the claims, keeping in mind Rule 11's requirement of an inquiry reasonable under the circumstances. Filing a patent infringement action pointing vaguely to "products and/or kits" (P 58 and 65) does not provide adequate notice as required by the Rules, and does not reflect the reasonable inquiry required by the Rules.
4. Supporting allegations should be plead or incorporated by reference within each count. The present complaint first rambles through 40 allegations that it labels "common to all causes of action," and then in each enumerated count realleges every allegation without differentiation between defendants and claims. This will not be adequate in the amended complaint. Each count should distinguish and identity which allegations relate to which claims, and which defendants. See Fed. R. Civ. P. 10(b) ("Each claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count . . . whenever a separation facilitates the clear presentation of the matters set forth.").
2. State Claims
The state law claims against Amoco are for unfair competition, conspiracy to commit unfair competition, and violation of the Cartwright Act. Amoco argues that Gen-Probe's claims are barred by Noerr immunity. Having already rejected Gen-Probe's argument that Noerr does not apply to state law claims, the Court turns directly to whether they fall within the scope of that immunity.
Gen-Probe contends that Amoco engaged in a long-term plan to wrongfully obtain an interest in the '330 and '611 patents. The complaint alleges that in pursuit of this plan, Amoco executed agreements with CNS and Regents agreeing to indemnify and fund their lawsuits against Gen-Probe in exchange for licenses to any rights obtained if the lawsuits proved successful; it conspired with CNS to misrepresent facts to the NIH; it duplicitously obtained confidential information which it used to set up companies that infringe on Gen-Probe's patents; and it published to third parties that Gen-Probe does not have title to the patents, offering licenses to the technology.
The discussion of Noerr with regard to CNS indicates that the allegations as to funding litigation and contacting the NIH concern activity protected by Noerr and by Civil Code section 47(2). The allegation that Amoco published its belief that it would obtain an interest in Gen-Probe's patents and marketed an interest in this contingency is likewise precluded by PG & E's expansion of Noerr to include ancillary activity. See PG & E, 50 Cal. 3d at 1124 (defendant had "conducted a marketing campaign to solicit buyers" for the contingent interest).
The allegation that Amoco duplicitously obtained confidential information that it later refused to return and instead used to infringe Gen-Probe's patents, however, may state a viable claim for unfair competition.
However, the conspiracy claims -- conspiracy to commit unfair competition, and Cartwright Act -- are dismissed because Amoco is not alleged to have agreed with CNS or the Regents to commit any unlawful acts. See supra, section IV(C)(2)(d).
V. MOTIONS TO STAY
Courts within the Ninth Circuit have discretion to stay pending actions. This discretion should be exercised according to the following standard:
Where it is proposed that a pending proceeding be stayed, the competing interests which will be affected by the granting or refusal to grant a stay must be weighed. Among these competing interests are the possible damage which may result from the granting of a stay, the hardship of inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.
Filtrol Corp. v. Kelleher, 467 F.2d 242, 244 (9th Cir. 1972), cert. denied, 409 U.S. 1110, 34 L. Ed. 2d 691, 93 S. Ct. 914 (1973).
Amoco argues first that if either the Regents or CNS were to prevail, "the underlying basis for [the patent infringement claims] will disappear because the conduct alleged by Gen-Probe in this case to be infringing will be authorized by license from [the Regents] and/or CNS." However, the license agreements between ATC, the Regents, and CNS provide an option to license conditioned upon the success of the CNS or Regents litigation. Neither agreement would excuse any current acts of infringement.
Amoco's second argument is that if CNS were to succeed in its claims against Gen-Probe, Gen-Probe would be deprived of any ownership interest in the patents in suit, and would lack standing to complain even of Amoco's current acts of infringement.
In response, Gen-Probe argues that the CNS litigation is baseless, citing certain rulings against counterclaims asserted by CNS in a terminated federal case. The Court rejects this for two reasons. First, it would be an extreme affront to the state court for this Court to rule that the litigation is baseless. Second, Gen-Probe fails to explain why, if the litigation is so baseless, it has failed to get the action dismissed within that forum. Because of the massive costs that proceeding with this litigation would entail for the parties and the court, and because Gen-Probe fails to make any persuasive arguments as to the prejudice it might suffer from a stay, the Court grants the defendants' motion to stay this action until the conclusion of the CNS litigation.
VI. CONCLUSION AND ORDER
Gen-Probe's motion to expedite and consolidate discovery is denied. Gen-Probe can obtain whatever discovery it needs in each case within the confines of that case.
Gen-Probe's state claims against The Regents of the University of California and Eric Stanbridge are dismissed with prejudice because of Eleventh Amendment immunity. The two federal claims of inducement of patent infringement against The Regents of the University of California may be barred by Eleventh Amendment immunity, but that cannot be decided without a determination of whether the Stanbridge/Gobel patent application infringes the '330 patent. Stanbridge is dismissed with prejudice from the patent infringement counts.
Gen-Probe's claims against the Center for Neurologic Study, Richard A. Smith, and Ivor Royston are dismissed with leave to amend. Gen-Probe's federal claims fail because the allegations in the complaint do not amount to a viable claim of inducement. The state claims are barred by petitioning immunity.
Gen-Probe's federal claims against Amoco Corporation, Amoco Technology Company, Gene-Trak Systems, Inc., Gene-Trak Systems Industrial Diagnostics Corp., and Vysis, Inc., are dismissed with leave to amend, except that four claims are stated as plead in the present complaint: the claims of direct infringement against Gene-Trak Systems, Inc., the claims of alter ego liability against Amoco Corporation and Amoco Technology Corporation, the claim of inducement infringement against Amoco Technology Corporation, and the claim of successor liability against Vysis. Gen-Probe's claims of conspiracy to unfairly compete and for violation of the Cartwright Act are dismissed with prejudice. The claim of unfair competition survives.
Because Gen-Probe's claims of direct infringement against Gene-Trak, and of inducement of infringement against Amoco Technology Corporation and The Regents of the University of California, require Gen-Probe to win the CNS case, the Court stays all further proceedings in this case until the termination of the CNS case. Gen-Probe is ordered to provide the Court with a copy of the judgment of that case within five days of receipt.
Gen-Probe may, within 20 days of receipt of this Court's Order lifting the stay, file an amended complaint realleging those claims that were dismissed with leave to amend, provided that the amendment cures the defects noted in this Order.
All pending motions not specifically addressed in this section are hereby stricken from the calendar.
IT IS SO ORDERED.
DATED. April 24, 1996
NAPOLEON A. JONES, JR.
United States District Judge