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