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DIMMICK v. NORTHERN CALIF. INSTITUTE FOR RESEARCH AND EDUC.

September 26, 2005.

KEVIN DIMMICK, Plaintiff,
v.
NORTHERN CALIF. INSTITUTE FOR RESEARCH AND EDUCATION, et al., Defendants. KEVIN DIMMICK Plaintiff, v. UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge

ORDER

Before this court are the motion to dismiss filed by defendant Regents of the University of California ("Regents") and the motion to dismiss filed by defendant Northern California Institute for Research and Education ("NCIRE") in Dimmick v. NCIRE, C 04-4965 PJH, and the motion to dismiss and to strike filed by the United States ("U.S.") in related case Dimmick v. US, C 05-0971 PJH. Dimmick has also filed a motion for leave to file a motion for reconsideration. Having read the papers and carefully considered the relevant legal authority, the court rules as follows.*fn1 BACKGROUND

Dimmick is a disabled veteran with AIDS who sought to enroll in an investigational drug study at the VA Hospital. He claims that the VA Hospital and other organizations affiliated with the VA Hospital, including the Regents and NCIRE, conspired to deny him medical care and forced him to take medications which had previously caused negative side effects. Dimmick also claims that Dr. Lampiris of the VA Hospital failed to obtain a proper informed consent from him, and that Dr. Marmar of the VA Hospital defamed him to third parties by referring to him as mentally ill. Lampiris and Marmar are both members of NCIRE's board of directors.

  Dimmick has now sued the Regents and private companies NCIRE, Boehringer-Ingleheim ("BI"), and Abbott Laboratories ("Abbott") in the C 04-4965 PJH action, and the United States in the C 05-971 PJH action. These two cases have had a complex procedural history. Dimmick originally filed one consolidated case in San Francisco Superior Court against all these parties and various federal employees of the VA Hospital. The U.S. (On behalf of the federal employees) removed the case entitled Dimmick v. Volberding, C 04-1480 PJH, to federal court. This court then dismissed the federal defendants in case number C 04-1480 PJH, because Dimmick had not exhausted his administrative remedies against them, and remanded the remaining claims against the non-federal defendants to state court.

  Dimmick then filed a second amended complaint in state court, which did not explicitly name any federal employees but which contained claims against private parties for the actions of VA employees. The U.S. then removed the case a second time, at which point it became Dimmick v. NCIRE, C 04-4965 PJH. Dimmick moved to remand the case, but at the hearing on the motion, he withdrew his motion to remand and agreed to proceed on those claims in federal court.

  Dimmick then filed a third amended complaint ("3AC") in this case and, after exhausting administrative remedies as required by the Federal Tort Claims Act ("FTCA"), filed a third lawsuit, this time against the U.S., Dimmick v. U.S., C 05-971 PJH. The two cases have been related but not yet consolidated on this court's docket.

  All parties moved to dismiss the 3AC complaint in Dimmick v. NCIRE, C 04-4965 PJH. At the hearing on the motion to dismiss the 3AC, the court granted the motion to dismiss but also granted leave to amend one last time. Additionally, at Dimmick's request, the court granted Dimmick leave to amend the complaint in Dimmick v. US, C 05-0971 PJH. Order Dismissing TAC ("May 23 Order").

  Dimmick has now filed a fourth amended complaint ("4AC") in case number 04-4965 PJH and a first amended complaint ("1AC") in case number 05-971 PJH. The 4AC repeats the same allegations raised previously: fraud, defamation, intentional and negligent infliction of emotional distress, negligent supervision, violation of Health and Safety Code ยง 24170, negligence per se, breach of contract, declaratory judgment, unfair business practices, conspiracy, and negligence, against the same defendants, namely: NCIRE, the Regents, BI, and Abbott. After the filing of the 4AC, BI and Abbott settled their claims with Dimmick and were dropped from Dimmick v. NCIRE, C 04-4965 PJH.

  The 1AC alleges negligence against the United States only, under the FTCA and Bivens.

  The Regents and NCIRE move to dismiss the 4AC in case number C 04-4965 PJH, and the United States moves to dismiss and to strike the 1AC, or in the alternative for a more definite statement in case number C 05-0971 PJH.

  DISCUSSION

  A. Legal Standards

  1. Motion to Dismiss

  A court should dismiss a claim under Fed.R.Civ.P. 12(b)(6) for failure to state a claim only where it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. See, e.g., Broam v. Brogan, 320 F.3d 1023, 1033 (9th Cir. 2003) (citations omitted).

  In evaluating a motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See, e.g., Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000) (citations omitted). Therefore, discovery is not required in response to a motion to dismiss.

  2. Motion to Strike

  A motion to strike is brought under Fed.R.Civ.P. 12(f), and may be used to remove insufficient defenses as well as "redundant, immaterial, impertinent, or scandalous matter" that might otherwise prejudice a party. See also, e.g., Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994).

  3. Motion for More Definite Statement

  Under Fed.R.Civ.P. 12(e), a party may move for a more definite statement if the pleading to which the party must respond "is so vague or ambiguous that [the] party cannot reasonably be required to frame a responsive pleading." Motions for more definite statements are disfavored in light of the liberal pleading standards of Rule 8, and should not be granted unless the moving party "literally cannot frame a responsive pleading." Bureerong v. Uvawas, 922 F.Supp. 1450, 1461 (C.D. Cal. 1996).

  B. Dimmick v. NCIRE, C 04-4965 PJH

  1. Regents' Motion to Dismiss

  Dimmick's only claims against the Regents are for breach of contract (the seventh cause of action) and for declaratory relief (eighth cause of action). Dimmick claims that he is a third-party beneficiary of the Regents' contract with NCIRE, in which the Regents agreed to act as the Institutional Review Board for the research at the VA Hospital.

  The court previously held that in order for Dimmick to be considered a third-party beneficiary of any UC-NCIRE contract, Dimmick was required to plead facts sufficient to show that "the contract at issue not only intended to confer a benefit on him, but also that it reflects the clear intent to grant him, or a class of people into which he belongs, particular enforceable rights." May 23 Order at 2, citing Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1211 (9th Cir. 1999) ("vague, hortatory pronouncements in the Contract, by themselves, are insufficient to support the [third party ...


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