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April 16, 1997


The opinion of the court was delivered by: PATEL


 Plaintiffs Karen and Hardy Jacobsen (collectively, "plaintiffs") brought this action against defendants Marin General Hospital ("Hospital"), California Transplant Donor Network, Inc. ("Network") and Marin County Coroner's Office ("Coroner") alleging various claims under California law arising from the harvesting of organs from the body of their son Martin Jacobsen ("Martin"). This case is before the court pursuant to the court's diversity jurisdiction. 28 U.S.C. § 1332. Now before the court are separate motions to dismiss submitted by all three defendants in this action.

 Having considered the parties' arguments and submissions and for the reasons stated below, the court now issues the following memorandum and order.


 Plaintiffs are citizens and residents of the Kingdom of Denmark and the parents of Martin Jacobsen, also a Danish citizen. Martin was visiting the United States as a tourist when he was found unconscious and suffering from head trauma in the early morning hours of October 4, 1995 on Northbound 101, south of the Waldo Tunnel in Sausalito, California. The parties do not know how this occurred. Martin was taken to defendant Hospital and admitted at 4:05 a.m. on October 4. At this time, Dr. Morris, the attending physician, presumed he was homeless and indicated that no identification had been made. At 8:25 a.m., defendant Network contacted defendant Coroner requesting organ donation; Coroner denied this request. At 9:00 a.m. on October 4, a search began for Martin's next of kin or other persons authorized to make an anatomical gift.

 At 9:30 a.m. on October 4, photos were taken by the Marin County Sheriff's Office ("Sheriff") and the Coroner, where a blue card stating "Jacobsen, M" and "10/4/95" was displayed with the body. *fn2" At 12:25 p.m., another request for organ donation was made, but Dr. Morris indicated that Martin was not brain dead at that time. At 2:00 p.m., Network called the Sheriff who revealed that the patient had been identified by the FBI as Martin Jacobsen from New York City.

 The following day, on October 5, 1995 at 9:00 a.m., Network spoke with the Sheriff who stated that he felt "9/10" sure that the patient was Martin Jacobsen. At 9:40 a.m., Dr. Ramirez made a clinical determination of brain death. At 3:00 p.m., another determination of brain death was made by Dr. Nisam who stated in his report that the patient was being maintained pending identification of next of kin and that an extensive forty hour search by the Sheriff, Coroner, and FBI to find any family member or identification of the patient had been unsuccessful. His report also indicated that the body was "officially released" to Network for organ donation.

 On October 6, 1995 around 9:00 a.m., the Sheriff reported to Network that they were unable to locate the identification of "this John Doe." At 10:13 a.m., Network requested authorization from Coroner to recover the organs of "John Doe." Coroner consented. Martin's kidney, liver, pancreas and heart were removed and the harvesting was completed at 2:16 a.m. on October 7, 1995.

 Neither Martin nor plaintiffs would have consented to the maintenance of Martin's body or the removal of his organs for the purposes of making an anatomical gift. Plaintiffs filed their original complaint on October 4, 1996 and an amended complaint on January 22, 1997. Defendants Hospital, Network and Coroner subsequently filed separate motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).


 A motion to dismiss for failure to state a claim will be denied unless it appears that the plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064, 93 L. Ed. 2d 998, 107 S. Ct. 949 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987), cert. denied sub. nom. Wyoming Community Dev. Auth. v. Durning, 484 U.S. 944, 98 L. Ed. 2d 358, 108 S. Ct. 330 (1987).


 Plaintiffs' various claims are rooted in the sequence of events culminating in the harvesting of Martin's organs in October 1995. They argue that defendants mutilated his body by maintaining it for harvesting, which was done without their consent. In their first amended complaint, plaintiffs bring the following six separate causes of action against all three defendants: (1) negligent search; (2) negligence in procuring injury-producing conduct of another; (3) intentional mutilation of a corpse and infliction of emotional distress; (4) negligent mutilation of a corpse and infliction of emotional distress; (5) joint enterprise liability; and (6) violation of equal protection under the fourteenth amendment.

 In response, defendants argue that they were complying with the provisions of the Uniform Anatomical Gift Act, adopted by the California legislature in 1988, when they maintained Martin's body and harvested organs from it. Accordingly, they argue that plaintiffs do not state any claims in their first amended complaint for which relief may be granted.

 I. The Uniform Anatomical Gift Act

 Although all fifty states have adopted the Uniform Anatomical Gift Act (the "Gift Act") in some form, there is very little case law interpreting its provisions. See Kelly-Nevils v. Detroit Receiving Hospital, 207 Mich. App. 410, 526 N.W.2d 15, 17 (Mich. App. 1994). The Gift Act is intended to "make uniform the law with respect to [organ donation] among states enacting it" and is codified in California in the Health and Safety Code. Cal. Health & Safety Code § 7156.5. The Gift Act provides that several classes of people may authorize an anatomical gift: the decedent's (1) attorney-in-fact with power of attorney; (2) spouse; (3) adult son/daughter; (4) either parent; (5) adult brother/sister; (6) grandparent; or (7) guardian/conservator (collectively "next of kin"). Id. § 7151(a). If the next of kin, as defined in section 7151(a), cannot be located to provide consent, the coroner or hospital, whichever entity has custody of the body at the time the consent ...

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