United States District Court, N.D. California
September 26, 2005.
KEVIN DIMMICK, Plaintiff,
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
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. 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
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.
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 water
users'] claims that [the contracting parties] intended to assume
a direct contractual obligation to every domestic, municipal, or
irrigation water user").
Dimmick is correct that the 4AC, as currently pled, alleges
that a contract between NCIRE and the Regents names him as a
creditor beneficiary. For the purposes of the motion to dismiss,
the court is required to accept Dimmick's allegations as true.
Because the contract provided by the Regents is not attached to
the complaint and because Dimmick claims that it is not the
contract to which his complaint refers, the court cannot rely on
that exhibit without converting this motion into one for summary
judgment, which the court is disinclined to do at this early
stage of the proceedings. The motion to dismiss must therefore be
DENIED; the Regents may raise this argument in their motion for
The Regents argue that Dimmick has essentially conceded that he
has no personal knowledge of any contract that specifically names
him, or a class of people to which he belongs, as a third party
creditor beneficiary and may thus be subject to Rule 11
sanctions. The court is not permitted to evaluate that issue in
the context of a motion to dismiss. If the Regents believe that
Dimmick's pleadings violate Rule 11, they may file a motion for
sanctions at the close of these proceedings.
2. NCIRE's Motion to Dismiss
NCIRE first moves to dismiss plaintiff's first cause of action
for fraud. However, Dimmick denies in his motion papers that he
states a fraud claim against NCIRE. Although the first cause of
action does not name NCIRE as a defendant in its caption, it does
state that, "In making the misrepresentations to plaintiff and in
suppressing material facts from plaintiff, defendants NCIRE, BI,
AL and Does 36-50, inclusive, committed fraud as defined in
. . ." 4AC ¶ 20. Notwithstanding this language, the court accepts
Dimmick's assertion that he does not intend to allege fraud by
NCIRE and STRIKES the language in 4AC ¶ 20 that alleges that
NCIRE committed fraud. b. Agency Theories
The second, third, and fourth causes of action allege that
NCIRE is liable for the actions of Dr. Marmar. Marmar is alleged
to have defamed Dimmick by telling third parties that Dimmick was
mentally ill. 4AC ¶¶ 22, 23. The only allegations in the 4AC
connecting Marmar and NCIRE are that Marmar was a member of
NCIRE'S board of director and that Marmar was not Dimmick's
treating physician. 4AC ¶ 7, 22. Based on Marmar's alleged
actions, Dimmick sues NCIRE for defamation (second cause of
action), intentional/negligent infliction of emotional distress
(third cause of action), and negligent supervision (fourth cause
In reviewing the 4AC, it is clear that the pleading does not
contain any factual allegations sufficient to show that Marmar
was acting on behalf of NCIRE when he allegedly defamed Dimmick.
While Dimmick alleges that Marmar was acting on behalf of NCIRE,
the court is not required to credit conclusory allegations of law
and unwarranted inferences as true for the purposes of a 12(b)(6)
motion. See, e.g., Fields v. Legacy Health Sys.,
413 F.3d 943, 950 n. 5 (9th Cir. 2005) (citations omitted). This is
particularly true when the U.S. has already certified, and the
court has already found, that Marmar and the other physicians
initially named as defendants, were not acting on behalf of
NCIRE, but were all acting solely within the course and scope of
their employment at the VA Hospital.*fn2 See Order
Dismissing TAC at 2-3.
Dimmick argues that because he has alleged that Marmar was not
his treating physician, the court must therefore assume that
Marmar was acting on behalf of NCIRE, and not on behalf of the VA
Hospital. This does not logically follow. Even if Marmar was not
Dimmick's treating physician, he could still have been acting on
behalf of the VA Hospital in an administrative capacity when he
made the alleged statements at issue. Thus, even when construing
the complaint in favor of Dimmick as required under Rule
12(b)(6), the factual allegations do not support a finding that
Marmar was acting as an agent of NCIRE.
All causes of action premised on Marmar's acting as an agent of
NCIRE (the second, third, and fourth) are thus DISMISSED.
c. Subject of Research
Dimmick alleges that NCIRE has violated the Human Subjects Act
at Cal. Health and Safety Code § 24170, which requires that NCIRE
obtain his informed consent (fifth cause of action). Dimmick
alleges that because NCIRE owed him a duty to do so, its failure
to obtain such consent constitutes negligence per se (sixth cause
of action). Dimmick also requests declaratory relief concerning
various federal regulations concerning his status as a human
research subject (eighth cause of action).
Dimmick appears to allege that he became a subject of human
research when Dr. Lampiris prescribed him the drug ritonavir.
See 4AC ¶¶ 11-13. However, Dimmick previously stated in the
Third Amended Complaint that ritonavir was a "pre-study drug."
TAC ¶¶ 13, 14; see also [original] Complaint ¶ 12 (stating that
he was required to take ritonavir in order to qualify for the
actual study.) In addition, as a matter of law, Dimmick would not
have become a subject in a human research study until he was the
recipient of the actual drug being investigated in the study.
21 C.F.R. § 312.3(b), 56.102(e). Dimmick has previously stated that
the drug being investigated in the study was not ritonavir but
rather, the drug tipronavir. See, e.g., TAC ¶ 26 (referring to
tipronavir as TPV); [original] Complaint ¶ 4B.
As the court has previously stated, the doctrine of judicial
estoppel bars Dimmick from taking contrary positions in pleadings
filed before the court, absent a plausible explanation for the
changes made. See Order Dismissing TAC at 2-3, citing Sicor
Limited v. Cetus Corporation, 51 F.3d 848, 859-60 (9th Cir.
1995). Since Dimmick has not explained why he now takes the
position that ritonavir was the drug being studied rather than
tipronavir, by definition he cannot be found to have been in a
human research study and thus, there is no basis for a claim for
violation of the Human Subjects Act or a claim for negligence per
se. Similarly, there is also no basis for a claim for declaratory
relief concerning his rights as a human research study subject,
since he never attained that status as a matter of law.
The fifth, sixth, eighth, and eleventh causes of action are
thus DISMISSED. d. Conflict of Interest
Next, Dimmick alleges in the ninth cause of action that NCIRE
has violated Cal. Bus. & Prof. Code § 17200 due to the existence
of conflicts of interest on the NCIRE board of directors. Dimmick
also alleges in the eleventh cause of action that NCIRE's failure
to prevent conflicts of interest from occurring constitute
negligence on NCIRE's part.
i. § 17200
In order to state a claim under § 17200, Dimmick must plead
facts showing that NCIRE has violated a separate law or
regulation. The predicate law at issue can be any type of law,
and need not be separately actionable. See, e.g., Gregory v.
Albertson's, Inc., 104 Cal. App. 4th 845, 850-51 (2002)
Dimmick claims that NCIRE has violated 38 U.S.C. § 7363(c) by
permitting persons "with financial interest" to sit on the board
and to approve pending projects, and also by generally "ignoring
the knowledge imputed to it by its Board members" that research
is being conducted in advance of approval. See 4AC ¶¶ 53,
Under 38 U.S.C. § 7363(c), "an individual appointed under
subsection a(2) to the board of directors . . . may not be
affiliated with, employed by, or have any other financial
relationship with any entity that is a source of funding for
research or education . . ." Dimmick argues that various members
of the VA staff served on NCIRE's board and were in financial
relationships with private drug companies such as (former)
defendants BI and Abbott Laboratories. However, the members of
the VA staff are not covered by § 7363(c). Section 7363(c)
applies only to board members appointed under
38 U.S.C. § 7363(a)(2), who are "members who are not officers or employees of
the federal government." Here, the NCIRE board members who worked
at the VA Hospital are all employees of the federal government,
and therefore are exempt from the requirements of § 7363(c). In
fact, § 7363(a) specifically states that administrative staff from the VA Hospital are to be
given seats on a non-profit research corporation's board ex
officio. Thus, because NCIRE has not violated
38 U.S.C. § 7363(c), this cannot form the predicate basis for a § 17200
Dimmick also alleges that NCIRE has attempted to ignore
knowledge imputed to it through its board members, that the VA
Hospital has been conducting research in advance of obtaining
approval and without having proper protections in place for its
human research subjects. Even assuming for the purposes of
12(b)(6) review that these allegations are true, and despite the
fact that Dimmick himself can no longer argue that he was a human
research subject, Dimmick does not indicate what law this
violates. Thus, this allegation cannot form the basis of a §
17200 claim either.
The ninth cause of action is DISMISSED.
In order to state a claim for negligence, Dimmick must allege
that NCIRE owed him a duty of care, and that defendants breached
that duty. See, e.g., 6 Witkin, Summary of California Law,
Torts § 838 (citations omitted). Dimmick alleges that the
conflicts of interest on NCIRE's board were likely to cause him
harm. However, it is not clear from the 4AC what duty was owed to
Dimmick by NCIRE. To the extent that the duty owed was based on
Dimmick's status as a human research subject, the court has
already found that based upon allegations of the 4AC and
unexplained contradictions with prior versions of the complaint,
Dimmick cannot claim that status.
Dimmick specifically alleges two duties in the 4AC, set forth
in ¶ 85: "NCIRE owed a duty to provide the protection and
monitoring due after the study is approved, because the
activities of the investigators was occurring in advance of FDA
approval and NCIRE was fully aware of that fact and fully aware
of the foreseeable harm which might occur as a result to
potential human subjects, such as plaintiff," (emphasis added),
and in ¶ 86: "NCIRE owed a duty to take such precautionary
measures and implement policies as would protect plaintiff." The
origin of this duty to protect plaintiff is not stated, and as
previously stated, to the extent that it is based on Dimmick's status as a human research subject,
it fails. While the 4AC contains the conclusory allegation that
Dimmick was a human research subject, the factual allegations do
not support this claim. Indeed, in this very cause of action
Dimmick refers to himself as a "potential" human research
subject. Dimmick does not explain in either the 4AC or his
opposition papers, what other duties were breached by any
corporate conflicts of interest.
The eleventh cause of action for negligence is thus DISMISSED.
Finally, Dimmick's tenth cause of action against NCIRE is for
conspiracy. Under California law, "[T]here is no separate tort
for civil conspiracy and there is no civil action for conspiracy
to commit a recognized tort unless the wrongful conduct itself is
committed and damages result therefrom. "LeVine v. Higashi,
131 Cal. App. 4th 566, 574 (2005) (citations omitted). Here, because
Dimmick has failed to state any tort claims against NCIRE, the
conspiracy claim fails as well.
The tenth cause of action is DISMISSED.
f. Conclusion re Dimmick v. NCIRE
NCIRE's motion to dismiss is GRANTED in its entirety.
Furthermore, as it is apparent that any further attempts to amend
by Dimmick would be futile, and because Dimmick has had multiple
opportunities to attempt to state a claim, the dismissal is with
prejudice. See, e.g., Steckman v. Hart Brewing, Inc.,
143 F.3d 1293, 1298 (9th Cir. 1998). The Regents' motion to dismiss
is DENIED. Thus, the only claims that remain in the 04-4965 PJH
action are the seventh cause of action for breach of contract and
the eighth cause of action for declaratory judgment against the
Regents. The Regents shall file an answer to the 4AC limited to
these two claims within twenty days of the date of this order.
C. Dimmick v. U.S., C 05-0971 PJH
Dimmick's complaint against the United States states only one
cause of action, for negligence. 1. Motion to Strike
a. Unopposed Requests
The U.S. argues that the VA Hospital should not be named as a
defendant and that the references to a Bivens claim, the
defamation allegations, and the request for injunctive relief
should be stricken. Dimmick does not oppose these requests, and
thus, the court GRANTS the motion to strike all references to the
VA Hospital as a defendant, the Bivens allegations, the
defamation allegations, and the request for injunctive relief.
The VA shall not appear in the caption of future filings.
b. Jury Trial
For some reason Dimmick will not concede that his right to a
jury trial against the U.S. should be stricken. However, all FTCA
claims against the U.S. are tried to the court and not to a jury.
28 U.S.C. § 2402. The motion to strike Dimmick's jury demand is
c. Attorneys' Fees
The U.S. is correct that the FTCA does not provide for
attorneys' fees and specifically limits what an attorney can
charge a client for pursuing a FTCA action in court. Attorneys'
fees under the FTCA are limited to 25% of any judgment entered or
20% of any settlement received. 28 U.S.C. § 2678. This simply
means that Dimmick's counsel may charge him a fee of no more than
25% or 20% of any recovery, either based on a lodestar
determination or on a contingency basis. It does not mean that
Dimmick can collect either 25% or 20% in addition to any recovery
in order to pay his attorneys. He must pay them out of his
recovery, if any, or from some other source. As attorneys' fees
are not provided by statute for FTCA cases, there is no claim as
such for fees and the request is properly STRICKEN from the
2. Motion to Dismiss and Motion for More Definite Statement
The U.S. moves to dismiss the 1AC, or in the alternative for a
more definite statement, on the grounds that Dimmick has not
sufficiently stated a claim for negligence under California law.
See, e.g., Molsbergen v. Untied States, 757 F.2d 1016, 1020
(9th Cir. 1985) (FTCA claim applies law of the state in which the tort claim arose). To
state a claim for negligence, Dimmick must plead facts showing
that he was owed a duty of care by the defendants while enrolled
in the study, and that defendants breached that duty. See,
e.g., 6 Witkin, Summary of California Law, Torts § 838
The 1AC is not a model of clarity and is at times internally
inconsistent. The cause of action for negligence is found at ¶ 51
(A)-(C). Dimmick alleges in section (A) that the U.S. owed no
fewer than a dozen duties to him under federal and state laws and
regulations, and under "their own standard of care documents."
However, no regulations are cited, no VA standard of care
documents are referenced, and the only law cited is California
Health & Safety Code § 24173 or 24178. It is not clear to the
court whether Dimmick is claiming that each of the listed duties
owed to him are derived from the cited provisions of California
law, or from some other unidentified source. With regard to
sections (B) and (C), no source is provided at all. The U.S. is
correct that the complaint is vague and ambiguous. Frankly, it is
impossible to determine whether Dimmick has stated a cause of
action for negligence based on the breach of a duty whose origin
has not been specified. While these three sections of ¶ 51,
clearly set forth the conduct of the U.S. at issue, it is
impossible for the defendant to frame a response to the pleading
because it does not put them or the court on notice as to why the
alleged conduct amounted to negligence.
Because the court cannot find that Dimmick has or has not
stated a claim for negligence against the U.S., the motion to
dismiss is DENIED. However, the motion for a more definite
statement is GRANTED. Because Dimmick's pleadings have been a
moving target, with the theories and wrongdoers changing in every
iteration, Dimmick shall not file a fifth amended complaint.
Rather he shall file a document entitled simply, "More Definite
Statement," in which he shall provide the origin of the duties he
alleges were owed to him by the U.S. as set forth in ¶ 51 §
(A)-(C). Dimmick may not take this opportunity to again change
or enlarge upon his allegations. The statement must simply track
and explain the allegations already set forth in the 1AC at ¶ 51.
Even though the 1AC is Dimmick's third attempt at pursuing a proper action against the U.S., he is being
afforded this opportunity because with a statement of the origin
of the duties he alleged were breached, the U.S. should be able
to frame a responsive pleading. The statement shall be filed
within fifteen days of the date of this order. The U.S. shall
thereafter answer the 1AC as amplified by the more definite
statement, within twenty days of the filing of the statement.
3. Service of Complaint
Finally, the U.S. also claims that it has not been properly
served with the amended summons and complaint in this matter. It
appears from the docket of case number C 05-0971 PJH, that
plaintiff has not yet served the U.S. with the summons and
complaint in this new matter. Because the U.S. did not move to
dismiss for insufficient service of process, and because the U.S.
clearly received notice of the 1AC, the objection is waived.
Fed.R.Civ.P. 12(h)(1). However, plaintiff is cautioned that he will
be required to properly serve any and all future filed documents.
4. Conclusion re Dimmick v. U.S.
The motion of the U.S. to strike the 1AC is GRANTED IN PART and
DENIED IN PART. The motion to dismiss the 1AC is DENIED, but the
motion for a more definite statement is GRANTED. The U.S. shall
answer the 1AC in accordance with this order as set forth above.
D. Motion for Leave to File Motion for Reconsideration
Finally, Dimmick moves for leave to file a motion for
reconsideration of the court's earlier acceptance of the
government's certification and subsequent finding that the
individual federal employees were acting within the course and
scope of their VA employment when the events complained of by
plaintiff took place. Dimmick claims that the contract submitted
by the Regents in support of their motion to dismiss demonstrates
that they have made misrepresentations concerning NCIRE's role in
the research project at issue.
Preliminarily, the court notes that this document that Dimmick
relies on here, is the very same document whose authenticity
Dimmick challenges in his opposition to the Regents' motion to
dismiss. In any event, Dimmick claims that the Regents' contract
shows that despite its statements to the contrary, NCIRE does in fact have
management control over researchers even before a research
project has begun, and therefore NCIRE had full control over the
VA employees and they were thus not working under the auspices of
the VA. Dimmick claims that this misrepresentation entitles him
to full discovery.
Even assuming Dimmick's factual allegations concerning NCIRE to
be true, Dimmick still has not made the requisite showing
necessary to plead an agency relationship. Dimmick argues that
the mere fact that NCIRE made certain payments necessarily
demonstrates that the individual doctors were acting as agents of
NCIRE. This conclusion does not follow from the facts pled,
either as a matter of logic or as a matter of law.
Dimmick's motion for leave to file a motion for reconsideration
This order fully adjudicates the matters listed at nos. 81, 90.
94, and 113 on the clerk's docket for Dimmick v. NCIRE, C
04-4965 PJH, and the matter listed at no. 11 on the clerk's
docket for Dimmick v. US, C 05-0971 PJH. A case management
conference will be held in both cases on November 17, 2005, at
2:30 pm. A joint case management statement shall be filed seven
calendar days before the conference.
IT IS SO ORDERED.
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