The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE DEFENDANT'S MOTION TO DISMISS (DOC. 8) AND PLAINTIFF'S MOTION TO REMAND (DOC. 19)
Defendant Rochester Medical Corporation ("RMC") moves to dismiss pro per Plaintiff Timothy Crayton's ("Crayton") complaint for insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(4)-(5). Doc. 8, filed Sept. 12, 2007, Def.'s Mot. Dismiss. Defendant alternatively moves to dismiss the complaint's fraudulent misrepresentation claim for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) as well as to strike punitive damages pursuant to Fed. R. Civ. P. 12(f). Id. Plaintiff opposes and moves to remand. Doc. 19, filed Jan. 9, 2009, Pl.'s Opp'n.*fn1
2. FACTUAL AND PROCEDURAL HISTORY
Plaintiff Crayton is a wheelchair-bound paralytic and inmate at Kern Valley State Prison.*fn2 Doc. 8, Def.'s Mot. Dismiss, Ex. A, Compl. On or about March 20, 2006, Plaintiff injured himself when he used Defendant RMC's condom catheter for his "medical urination disability needs." Id. ¶¶ 5-6. The complaint identifies the condom catheter as "ULTRAFLEX silicone self-adhering male external catheter, U.S. Patent No. 5,176,666 and No. 5,376,085." Id. ¶ 2.
On June 14, 2007, Plaintiff Crayton commenced this action against Defendant RMC in the California Superior Court, Kern County, alleging strict products liability and negligence, fraudulent misrepresentation, and breach of implied warranty arising from hair and skin tear suffered by plaintiff while removing a condom catheter from his penis.*fn3 Compl. ¶ 11. Plaintiff alleges the catheter is inherently dangerous and defective in design because the condom is unevenly lined with glue that is invisible, insoluble in water, excessively strong, and adheres to the full length of the penis. Id. ¶ 9-12. The condom lacks a prominent lip ridge by which a person's fingers can catch traction to safely remove it and the packaging and instructions falsely suggest the condom simply rolls off the penis. Id. ¶ 12-15. RMC, as an expert in medical devices, knew or should have known of the catheter's defective design and foreseeable risk of injury it posed, but deliberately concealed the catheter's defects, did not provide adequate warning or instructions for safe removal, and failed to incorporate safer alternative designs. Id. ¶ 23-25.
The complaint seeks $500,000 in compensatory and general damages for pain and suffering, mental anguish and distress, loss of earning capacity, erectile dysfunction, reproductive and urinary function damage, and indemnification for future medical expenses. Compl. "Prayer" ¶ 1. The complaint also seeks $1,000,000 in punitive damages because RMC's acts and omissions were allegedly cruel, egregiously malicious and fraudulent, posed a threat of foreseeable injury, and were committed in conscious disregard of plaintiff's safety. Compl. ¶ 58.
B. Defendant's Removal and Motion to Dismiss
On September 7, 2007, Defendant filed a notice of removal of the action to the district court pursuant to 28 U.S.C. § 1446(b). Plaintiff resides in California. Defendant is a corporation with its principal place of business in Minnesota. The amount in dispute is allegedly in excess of the $75,000 jurisdictional minimum. Doc. 25-2, filed Jan. 25, 2008, Decl. Stacy C. Spodick Supp. Def.'s Reply ¶ 2.
On September 9, 2007, Defendant filed a motion to dismiss for insufficient service of process. Doc. 8, Def.'s Mot. Dismiss. Alternatively, Defendant moves to dismiss the fraudulent misrepresentation (third) cause of action on the ground that the complaint (1) does not allege RMC is a fiduciary with a duty to disclose the allegedly concealed fact and (2) does not plead fraud with particularity as required by Rule 9(b) because the claim merely asserts RMC communicated "something that was false or misleading" in some unknown way. Id. at 6, 8. Defendant also moves to strike the punitive damages request for failing to plead specific facts showing RMC acted egregiously or with evil motive. Id. at 9.
Plaintiff opposes and contends (1) the action should not be dismissed because an authorized corporate agent received the complaint and summons naming RMC's President/CEO and RMC received actual notice; (2) RMC never removed the case because it did not file a notice of removal in the Kern County Superior Court*fn4 as required by 28 U.S.C. § 1446(d); (3) the fraudulent misrepresentation claim is particular and pleads the essential elements necessary to sustain a claim upon which relief can be granted; and (4) the punitive damages prayer is particular and entitled to liberal construction because plaintiff is pro se.
On January 30, 2008, Plaintiff Crayton submitted an additional exhibit in support of his argument that service by process was effectuated. Doc. 26, Pl.'s Br. Supp. Pl.'s Opp'n. On April 10, 2008, Crayton appears to have attempted to serve RMC again. Doc. 30, Pl.'s Second Service.
A complaint "should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (citations omitted); see also Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (issue is not whether plaintiff will ultimately prevail, but whether claimant is entitled to offer evidence to support the claim). In deciding a motion to dismiss, the court accepts as true all material allegations in the complaint and construes them in the light most favorable to the plaintiff. See Newman v. Sathyavaglswaran, 287 F.3d 786, 788 (9th Cir. 2002).
The court need not accept as true allegations that contradict facts that may be judicially noticed. See Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). For example, matters of public record may be considered, including pleadings, orders, and other papers filed with the court or records of administrative bodies, see Mack v. S. Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991), while conclusions of law, conclusory allegations, unreasonable inferences, or unwarranted deductions of fact need not be accepted. See W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); see also Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) ("[A] document is not 'outside' the complaint if the complaint specifically refers to the document and if its authenticity is not questioned."), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Allegations in the complaint may be disregarded if contradicted by facts established by exhibits attached to the complaint. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
A. Did Plaintiff Crayton Properly Serve Defendant Rochester Medical Corporation ...