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 is given, may authorize the anatomical gift so long as several criteria are met, including a reasonable "search" for persons listed in section 7151(a).
Id. §§ 7151.5(a)-(b).
II. Equal Protection Claim
In their sixth claim, plaintiffs allege that while implementing the provisions of the Gift Act pertaining to the search for next of kin, defendant Coroner discriminated against plaintiffs because of their alien status. Compl. P 82. They assert that as foreign nationals, they were discriminated against because they were:
more likely to have a relative of theirs have his or her organs harvested without consent to the detriment of the relatives' right to custody and possession of a decedent. In conducting a search for next of kin, the class of aliens are thus treated differently from the class of non-aliens.
In their opposition papers, plaintiffs concede that their constitutional claim for violation of their fourteenth amendment rights implicates only defendant Coroner, not defendants Hospital and Network. In response to this claim, defendant Coroner argues that plaintiffs have not properly pleaded an equal protection claim because they do not allege any claim under 42 U.S.C. section 1983 as required in this Circuit. Coroner is correct. The Ninth Circuit has clearly stated that "a litigant complaining of a violation of a constitutional right must utilize 42 U.S.C. § 1983."
Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992), cert. denied, 506 U.S. 1081, 122 L. Ed. 2d 357, 113 S. Ct. 1049 (1993). Plaintiffs have not done this and therefore have not properly stated a claim for equal protection in their amended complaint.
Although plaintiffs could readily cure this defect if given leave to amend, the claim is so fundamentally futile that leave could not cure its substantive defects. As Coroner argues, plaintiffs lack standing to bring an equal protection claim because the clause applies only to persons within the territorial jurisdiction of the United States. In this case, plaintiffs were in Denmark when the events underlying their complaint took place.
The Fourteenth Amendment explicitly states "nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV (emphasis added). In interpreting this language, the Supreme Court has stated that the provisions of the Fourteenth Amendment "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality." Plyler v. Doe, 457 U.S. 202, 212, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982) (emphasis added). Here, it is undisputed that plaintiffs were not in United States territory when the events giving rise to their complaint occurred. Accordingly, plaintiffs have no standing to invoke the protections of the Fourteenth Amendment and their equal protection claim against defendant Coroner must be dismissed.
III. Remaining State Law Claims
Having dismissed the only federal claim in plaintiffs' complaint, the court now considers plaintiffs' remaining state law claims under the court's diversity jurisdiction.
A. Claims Against Coroner
Defendant Coroner argues that plaintiffs' failure to file a claim under the California Tort Claims Act bars all of plaintiffs' state law claims against them. Under the California Tort Claims Act, a plaintiff seeking money damages from local public entities is required to file a claim against such entities not later than six months after the accrual of the action causing personal injury. Cal. Gov't Code §§ 905, 905.2, 910, 911.2. The Ninth Circuit has found that "failure to comply with state imposed procedural conditions to sue the State bars the maintenance of a cause of action based upon these pendent State claims." Ortega v. O'Connor, 764 F.2d 703, 707 (9th Cir. 1985), rev'd in part on other grounds, 480 U.S. 709 (1987).
At oral argument, plaintiffs admitted that they had not filed a claim as required under the Tort Claims Act. Plaintiffs offer no excuse for this non-compliance. Instead, they argue that the Tort Claims Act is inapplicable to them because it only applies where a federal court maintains supplemental jurisdiction over state claims, whereas here, the court maintains original jurisdiction over plaintiffs' state law claims under its diversity jurisdiction. In support of this contention, plaintiffs apparently rely on the fact that Ortega specifically discussed the Tort Claims Act in the context of pendent state claims.
Id. at 707. If true, plaintiffs' proposition would eviscerate state law requirements whenever parties filed their claims in federal court under diversity. Certainly, plaintiffs' misperception is incorrect. Because plaintiffs failed to file a claim with the State Board of Control pursuant to the California Tort Claims Act, plaintiffs are barred from bringing any claims against Coroner in this action.
The court will now consider the substance of plaintiffs' remaining claims against all of the defendants, including Coroner, assuming arguendo that plaintiffs could bring a claim against Coroner.
B. Negligent Search Claim
Plaintiffs argue that the defendants acted negligently in searching for persons authorized to provide consent for an anatomical gift. The Gift Act authorizes a coroner, medical examiner, hospital, or local public health official to release and permit removal of a body part where that institution has custody of a body and after a "reasonable effort has been made to locate and inform" next of kin of their option to make, or object to, an anatomical gift. Cal. Health & Safety Code §§ 7151.5(a)-(c). The court must determine whether the actions taken to locate plaintiffs, as described in the complaint, were reasonable under the requirements of the Gift Act.
Neither the parties nor the court has identified California cases interpreting what constitutes a "reasonable" search for next of kin under the Gift Act. Nevertheless, the Gift Act itself provides the court with some guidance. Where a coroner has custody of a body, the Gift Act states that "a reasonable effort [to locate next of kin] shall be deemed to have been made when a search for the persons has been underway for at least 12 hours." Id. § 7151.5(a)(2) (emphasis added). Similarly, where a hospital has custody of a person who is still alive but expected to die, a reasonable search "may be initiated in anticipation of death, but . . . the determination [to release a body for an anatomical gift] may not be made until the search has been underway for at least 12 hours." Id. § 7151.5(b) (emphasis added). This search
shall include a check of local police missing persons records, examination of personal effects, and the questioning of any persons visiting the decedent before his or her death or in the hospital, accompanying the decedent's body, or reporting the death, in order to obtain information that might lead to the location of [next of kin].