Benton v. Boyer et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Deborah Benton,
Plaintiff,
v.
Josh Boyer, et al.,
Defendants.
No. CV-26-04051-PHX-JGZ
ORDER
Pending before the Court are Defendants Flynn Carey and Andrew Breavington’s
Renewed Motion to Dismiss (Doc. 36); the State Defendants’ Motion to Strike Plaintiff’s
Complaint (Doc. 108); Plaintiff’s Motion to Strike the State Defendants’ Motion to Strike
and for Entry of Default (Doc. 116); Plaintiff’s Renewed Motion for Default Judgment
against CVS Health Corporation (Doc. 117); Plaintiff’s Motion for Leave to File
Supplemental Pleading (Doc. 118); CVS Pharmacy, Inc.’s Motion to Set Aside Default and
Motion to Dismiss for Insufficient Service of Process (Doc. 123); Defendant Costco
Wholesale Corporation’s Motion to Dismiss (Doc. 129); Plaintiff’s Motion to Amend
Complaint (Doc. 147); and Defendant Josh Boyer’s Motion for More Definite Statement
(Doc. 150). The Court addresses each motion below.
I. Background
Plaintiff Deborah Benton initiated this action in Maricopa County Superior Court
on April 28, 2026. (Doc. 1-4 at 4.) The action was removed to this Court in June 2026.
(Doc. 1.) Plaintiff is proceeding pro se.
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Plaintiff names as Defendants DEA Agent Josh Boyer; Dr. Stephen Borowsky; the
Arizona Attorney General’s Office (“AAGO”); the Arizona Board of Nursing; Flynn
Carey; Andrew Breavington; Diane Caruso; Janet Olson; Humberto Preciado; Roberto
Pulver; Charles Hoover III; the Estate of Mark Brnovich; Walgreens; CVS; Fry’s; Costco;
and various Doe Defendants. Plaintiff’s central allegation is that Defendants participated
in a coordinated effort to retaliate against her for filing and settling a lawsuit against several
pharmacy defendants. (Doc. 1-4 at 6.) The Complaint is approximately 250 pages long and
is accompanied by more than 2,000 pages of exhibits. (Doc. 1-4 at 253–81; Docs. 1-5
through 1-11.)
Plaintiff asserts fifteen claims. She alleges civil RICO claims for monetary and
injunctive relief and RICO conspiracy (Claims 1–3); a claim under 42 U.S.C. § 1983
against the State Defendants (Claim 4); malicious prosecution (Claim 5); First Amendment
retaliation (Claim 6); violations of Article 2, Sections 4 and 6 of the Arizona Constitution
(Claim 7); legal malpractice and breach of fiduciary duty against Carey and Breavington
(Claim 9); civil conspiracy (Claim 10); spoliation of evidence (Claim 13); abuse of process
(Claim 14); and intentional infliction of emotional distress (Claim 15). Different
combinations of Defendants are named in each claim.
II. Motion to Dismiss Case (Doc. 129)
Defendant Costco Wholesale Corporation moves to dismiss the Complaint under
Federal Rules of Civil Procedure 8, 10, and 12(b)(6). (Doc. 129.) Costco argues that the
Complaint is excessively lengthy, fails to organize its allegations in numbered paragraphs,
and does not clearly identify which claims are asserted against Costco or which factual
allegations support each claim. The State Defendants and Defendant Stephen Borowsky
join Costco’s Motion. (Docs. 134, 135.) Plaintiff opposes the Motion. (Doc. 130.)
Rule 8(a)(2) requires a complaint to contain “a short and plain statement of the claim
showing that the pleader is entitled to relief,” and Rule 8(d)(1) requires each allegation to
be “simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1). Rule 10(b), in turn, requires
a party to state its claims “in numbered paragraphs, each limited as far as practicable to a
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single set of circumstances” and, when doing so would promote clarity, to state each claim
founded on a separate transaction or occurrence in a separate count. Fed. R. Civ. P. 10(b).
These requirements are not merely matters of formatting. Their purpose is to provide
each defendant fair notice of the claims asserted against it and the factual basis for those
claims, while permitting the defendant and the Court to determine which allegations
correspond to which causes of action. See McHenry v. Renne, 84 F.3d 1172, 1176–80 (9th
Cir. 1996). A complaint may therefore violate Rule 8 when its factual allegations are so
lengthy, disorganized, redundant, or intermingled that the substance of the claims cannot
reasonably be discerned. See id. at 1177–80; Cafasso v. Gen. Dynamics C4 Sys., Inc., 637
F.3d 1047, 1058–59 (9th Cir. 2011). The Ninth Circuit has likewise recognized that
“shotgun” pleadings—pleadings that obscure which factual allegations support which
claims against which defendants—undermine Rule 8’s notice function and may require
repleading. See Gibson v. City of Portland, 165 F.4th 1265, 1288–89 (9th Cir. 2026).
Plaintiff is proceeding pro se, and the Court therefore construes her pleadings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But pro se litigants remain
subject to the Federal Rules of Civil Procedure. See King v. Atiyeh, 814 F.2d 565, 567 (9th
Cir. 1987), overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th
Cir. 2012) (en banc).
Plaintiff argues that the Complaint should not be subjected to federal pleading
requirements because she originally filed it in state court, where it was accepted before
removal. (Doc. 130 at 3–4.) But the Federal Rules apply to civil actions after removal from
state court. Fed. R. Civ. P. 81(c)(1). That the Complaint was accepted for filing in state
court therefore does not relieve Plaintiff of the obligation to comply with Rules 8 and 10
in this Court.
The Complaint does not satisfy the requirements of those rules. It spans more than
200 pages and is accompanied by more than 2,000 pages of exhibits. Much of the pleading
consists of lengthy narrative allegations, legal argument, background concerning
proceedings and individuals not directly tied to a particular claim, and factual allegations
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that are not set forth in separately numbered paragraphs. Costco identifies, for example,
extended discussions of Controlled Substances Act standards, grand jury proceedings, and
patient-by-patient prescribing records, much of which is not connected to the claims against
Costco.
More importantly, the structure of the Complaint makes it difficult to determine
which factual allegations support which claims against which Defendants. Although
Plaintiff identifies specific allegations concerning Costco—including allegations that a
Costco pharmacist complained to the DEA and Arizona Board of Nursing and that Costco
refused to fill certain prescriptions—the Complaint also contains broader allegations that
Costco participated in communications, meetings, or a coordinated enterprise involving
numerous other Defendants. Those allegations are dispersed throughout the pleading rather
than organized by claim and Defendant. Plaintiff’s inclusion of a table of contents, an overt
acts chart, and defendant-specific references does not cure the broader problem that the
operative pleading requires the parties and the Court to determine for themselves which
portions of a lengthy narrative correspond to each asserted cause of action.
Plaintiff also argues that the complexity of her RICO allegations requires a lengthy
pleading and that Rule 9(b)’s particularity requirement justifies the level of detail provided.
But complexity does not eliminate Rule 8’s requirement that a complaint present the claims
in a clear, concise, and organized manner. See Gibson, 165 F.4th at 1271, 1288–89. Rule
9(b) likewise does not authorize a plaintiff to disregard Rules 8 and 10; allegations of fraud
may be pleaded with particularity while still identifying, in numbered paragraphs and
separate counts, the relevant conduct attributable to each Defendant.
The Court therefore concludes that the Complaint fails to comply with Rules 8 and
10. Because the deficiencies concern the organization and clarity of the pleading as a
whole, Plaintiff will be given an opportunity to amend.
Because the Court will require Plaintiff to replead, it declines at this stage to reach
Costco’s alternative arguments under Rule 12(b)(6). Those arguments may be renewed, as
appropriate, in response to the amended complaint.
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III. State Defendants’ Motion to Strike and Plaintiff’s Motion to Strike (Docs.
108, 116)
The State Defendants move to strike Plaintiff’s Complaint pursuant to Rule 12(f),
arguing principally that the Complaint is excessively lengthy, fails to comply with Rules 8
and 10, and improperly combines numerous claims and allegations against multiple
Defendants. (Doc. 108.) Plaintiff, in turn, moves to strike the State Defendants’ Motion
and requests entry of default, arguing that the State Defendants were required to file an
answer or Rule 12(b) motion by July 31, 2026. (Doc. 116.)
Rule 12(f) permits the Court to strike from a pleading “an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The
State Defendants do not principally contend that discrete portions of the Complaint fall
within those categories. Rather, their Motion challenges the Complaint as a whole for
failure to comply with Rules 8 and 10. The Court therefore construes the State Defendants’
Motion according to its substance as seeking relief under Rules 8 and 10.
For the reasons discussed above, the Court agrees that the Complaint does not
comply with Rules 8 and 10 and will require Plaintiff to file an amended complaint.
Because the Court is granting that relief on the same grounds raised in Costco’s Motion,
the State Defendants’ Motion to Strike (Doc. 108) will be denied as moot.
Plaintiff’s Motion to Strike (Doc. 116) will likewise be denied. Rule 12(f) authorizes
striking material from a pleading, not striking a motion. See Fed. R. Civ. P. 7(a), 12(f). In
addition, because the Court is requiring Plaintiff to replead and is resolving the State
Defendants’ challenge to the operative Complaint in this Order, Plaintiff’s request to strike
Doc. 108 and enter default does not warrant separate relief.
Accordingly, the State Defendants’ Motion to Strike (Doc. 108) is denied as moot,
and Plaintiff’s Motion to Strike State Defendants’ Motion to Strike and for Entry of Default
(Doc. 116) is denied.
//
//
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IV. Renewed Motion to Dismiss Defendants Flynn Carey and Andrew
Breavington (Doc. 36)
Defendants Flynn Carey and Andrew Breavington move to dismiss the claims
asserted against them. (Doc. 36.) Plaintiff’s claims against Carey and Breavington arise out
of their representation of her in criminal and administrative proceedings, and include
claims alleging violations of civil RICO, legal malpractice and breach of fiduciary duty,
civil conspiracy, spoliation of evidence, and intentional infliction of emotional distress. (Id.
at 2.) Defendants argue that the Complaint fails to comply with Rules 8 and 10 and,
alternatively, that Plaintiff’s state law tort claims are barred by the statute of limitations,
that Plaintiff fails to plead viable RICO claims, that Arizona does not recognize
independent claims for spoliation or civil conspiracy, and that a March 15, 2024 Settlement
Agreement and Release bars all claims arising from their representation of Plaintiff. (Id. at
7–14.) Plaintiff opposes the Motion. (Doc. 83.)
As discussed above, the Court will require Plaintiff to file an amended complaint
that complies with Rules 8 and 10. The Court therefore need not separately address Carey
and Breavington’s request for relief on that basis. The Court will, however, address their
statute of limitations defense because amendment cannot cure claims that are untimely as
a matter of law.
Arizona imposes a two-year statute of limitations on Plaintiff’s legal malpractice
claim and the other personal injury tort claims at issue here. See A.R.S. § 12-542; Amfac
Distrib. Corp. v. Miller, 138 Ariz. 152, 153 (1983). Under Arizona’s discovery rule, a claim
accrues when a plaintiff has sufficient knowledge to identify that a wrong occurred and
caused injury; a plaintiff need not know every fact underlying the claim. Walk v. Ring, 202
Ariz. 310, 316 ¶ 22 (2002). Accrual is ordinarily a factual question, but it may be resolved
as a matter of law when the complaint establishes that the plaintiff knew or reasonably
should have known the basis for the claim. Id. ¶¶ 23–24.
The Complaint establishes that Plaintiff was aware of the alleged misconduct
underlying her claims against Carey and Breavington no later than early 2024. According
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to the allegations identified in the Motion, Plaintiff had repeatedly challenged the
Attorneys’ handling of the Board proceedings, questioned their diligence and competence,
disputed their billing, identified an alleged conflict of interest, and directed her insurer not
to pay additional fees by the end of 2023. Their representation ended in January 2024. By
March 2024, Plaintiff had expressly challenged the amount of fees owed and alleged that
the Attorneys had fallen below the applicable standard of care. The parties’ March 15, 2024
Settlement Agreement and Release expressly memorializes that dispute.
Plaintiff did not commence this action until April 28, 2026, more than two years
later. Her state law tort claims are therefore untimely unless the limitations period was
tolled.
Plaintiff advances three tolling theories. First, Plaintiff invokes the discovery rule,
arguing that she did not discover the “full scope” of the alleged misconduct until she
obtained additional files in 2025 and 2026. (Doc. 83 at 2–3.) But the discovery rule does
not delay accrual until a plaintiff learns every fact or the full extent of the alleged
wrongdoing. Walk, 202 Ariz. at 316 ¶ 22. Plaintiff’s own allegations establish that she
knew of the alleged injury and its connection to Carey and Breavington more than two
years before filing suit.
Second, Plaintiff invokes a continuous representation theory, asserting that the
limitations period did not begin to run until Carey’s representation ended in January 2024.
(Doc. 83 at 3.) Even assuming that doctrine applies, Plaintiff did not file this action until
April 28, 2026, more than two years after the representation ended.
Third, Plaintiff argues that fraudulent concealment tolled the limitations period
because Carey allegedly withheld documents, maintained incomplete client files,
concealed recordings, and conditioned billing corrections on a release. (Id.) Those
allegations may concern additional evidence of the alleged misconduct, but they do not
establish that the Attorneys concealed the existence of Plaintiff’s claims or prevented her
from discovering the facts necessary to pursue them. To the contrary, Plaintiff alleges that
she had already questioned the Attorneys’ competence, challenged their billing, identified
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an alleged conflict, and retained separate counsel to assist with the fee dispute by early
2024.
Accordingly, Plaintiff’s state law tort claims against Carey and Breavington for
legal malpractice and breach of fiduciary duty (Claim 9), civil conspiracy (Claim 10), and
intentional infliction of emotional distress (Claim 15) are barred by the two-year statute of
limitations and will be dismissed with prejudice.
Plaintiff’s spoliation of evidence claim (Claim 13) independently fails as a matter
of law. Arizona does not recognize an independent tort claim for spoliation of evidence.
See Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 269 ¶ 16 (2010) (declining to
recognize a tort for third party intentional spoliation). Accordingly, Claim 13 will also be
dismissed with prejudice as to Carey and Breavington.
Because Claims 9, 10, 13, and 15 are subject to dismissal on these grounds, the
Court need not decide whether the March 2024 Release independently bars those claims or
whether Plaintiff has adequately alleged economic duress sufficient to invalidate the
Release. Nor does the Court reach, at this stage, Carey and Breavington’s remaining
arguments concerning the sufficiency of Plaintiff’s RICO allegations. Those arguments
may be renewed, as appropriate, in response to any amended complaint.
Accordingly, Carey and Breavington’s Renewed Motion to Dismiss will be granted
in part. Plaintiff’s claims for legal malpractice and breach of fiduciary duty (Claim 9), civil
conspiracy (Claim 10), spoliation of evidence (Claim 13), and intentional infliction of
emotional distress (Claim 15) will be dismissed with prejudice as to Carey and
Breavington. The remainder of the Motion will be denied without prejudice.
V. Motions Concerning Default and Service as to CVS (Docs. 117, 123)
Plaintiff filed a Renewed Motion for Default Judgment against CVS Health
Corporation. (Doc. 117.) CVS Pharmacy, Inc. (“CVS Pharmacy”) subsequently appeared
and filed an Objection, Motion to Set Aside Clerk’s Entry of Default, and Motion to
Dismiss for Insufficient Service of Process. (Docs. 121, 123.) CVS Pharmacy contends that
Plaintiff never properly served any CVS-affiliated entity and that the Clerk’s entry of
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default should therefore be set aside. Plaintiff opposes the Motion. (Doc. 125.)
A. Motion to Set Aside Entry of Default
For good cause, the Court may set aside an entry of default. Fed. R. Civ. P. 55(c).
In determining whether good cause exists, the Court considers whether the defendant
engaged in culpable conduct that led to the default, whether the defendant has a meritorious
defense, and whether setting aside the default would prejudice the plaintiff. United States
v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010).
The district court has broad discretion to set aside an entry of default before judgment, and
doubts should generally be resolved in favor of deciding the case on the merits. O’Connor
v. State of Nev., 27 F.3d 357, 364 (9th Cir. 1994), as amended (July 1 and July 12, 1994);
Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984).
Good cause exists to set aside the default because Plaintiff had not properly served
the intended CVS Defendant when default was entered.1 Plaintiff argues that CVS
intentionally failed to appear or timely respond to the Complaint. (Doc. 125 at 5.) That
argument, however, depends on her contention that service was effective on May 19. It was
not.
On May 19, Plaintiff attempted service on CVSI, Inc. through CT Corporation.
(Doc. 59 at 20–21.) Even if that service had otherwise been effective, CVSI, Inc. bears no
apparent relationship to the Defendant Plaintiff intended to serve. The record reflects that
CVSI, Inc. is an inactive corporation in the computer software and hardware business and
is unrelated to CVS Pharmacy or any other CVS-affiliated entity. (Doc. 123, Ex. A.)
Plaintiff has since acknowledged that CVS Pharmacy is the entity she intended to sue.
(Doc. 125 at 3.) Service, or attempted service, on an unrelated entity does not constitute
service on the intended Defendant. See Fed. R. Civ. P. 4(a)(1)(B) (requiring the summons
to be directed to the defendant).
1 Because the Clerk’s entry of default was based on Plaintiff’s May 19 attempted service
on CVSI, Inc., Plaintiff’s later service attempts do not affect whether the default was
properly entered. In any event, Plaintiff’s July 22 attempt to serve CVS Health Corporation
through CT Corporation was also unsuccessful because CT Corporation was not that
entity’s registered agent in Arizona.
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Nor do the remaining factors warrant leaving the default in place. CVS Pharmacy
has identified several potentially meritorious defenses, including insufficient service of
process, Plaintiff’s failure to comply with Rules 8 and 10, and substantive defenses to
Plaintiff’s claims. The burden of establishing a meritorious defense at this stage is not
heavy. See Mesle, 615 F.3d at 1094.
Plaintiff also has not shown prejudice from setting aside the default. She points to
the time and expense spent seeking default, the suspension of her nursing licenses, lost
income, and the burden of litigating against numerous defendants. But the relevant inquiry
is whether setting aside the default would hinder Plaintiff’s ability to litigate her claims.
See TCB Remarketing LLC v. Metro Auto Auction LLC, No. CV-20-01826-PHX-MTM,
2021 WL 2865095, at *3 (D. Ariz. July 8, 2021) (“being forced to litigate a case on the
merits rather than obtaining a default judgment does not constitute ‘prejudice’”). Discovery
has not begun, and Plaintiff has not identified any loss of evidence, increased difficulty of
discovery, or other impairment of her ability to proceed against CVS Pharmacy.
Accordingly, the Clerk’s entry of default against CVS will be set aside.
B. Motion to Dismiss for Insufficient Service of Process
Defendant CVS Pharmacy also moves for dismissal from this action for insufficient
service of process under Rule 12(b)(5).
As discussed above, Plaintiff did not properly serve CVS Pharmacy. And the Court
does not take lightly Plaintiff’s repeated representations that CVS Pharmacy was properly
served despite her acknowledgment that the service materials had been returned to her.
(Docs. 59 at 2–3; 89 ¶¶ 2–3; 117 at 1–2.) The record, however, does not establish that those
representations were willfully false. Therefore, dismissal is not warranted at this stage.
When service is defective, the Court has discretion either to dismiss the action or
quash service and permit another attempt. See S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d
1288, 1293 (9th Cir. 2006). Plaintiff is proceeding pro se, attempted to serve the entity she
believed to be the proper CVS Defendant, CVS Pharmacy has now appeared and has actual
notice of the action, and CVS Pharmacy was not prejudiced by the improper service. Under
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these circumstances, the Court will quash Plaintiff’s prior attempted service and permit her
additional time to effect proper service under Federal Rule 4(m). CVS Pharmacy’s request
for dismissal under Rule 12(b)(5) will be denied.
Because the Clerk’s entry of default will be set aside, Plaintiff’s Renewed Motion
for Default Judgment (Doc. 117) will be denied as moot.
VI. Motions for Leave to Supplement and Amend (Docs. 118, 147)
Plaintiff moves for leave to file a supplemental pleading under Rule 15(d) and
separately moves for leave to amend under Rule 15(a). (Docs. 118, 147.) Both motions
seek to add allegations concerning billing by Defendants Carey and Breavington. As
discussed above, the Court will require Plaintiff to file an amended complaint that complies
with Rules 8 and 10. Because the amended complaint will supersede the current Complaint,
Plaintiff’s requests to supplement or amend that pleading are moot.
Plaintiff may include any properly pleaded allegations concerning the NSO billing
in her amended complaint, subject to the Federal Rules of Civil Procedure and the
requirements set forth in this Order. The Court therefore need not reach Defendants’
remaining arguments concerning the sufficiency or futility of the proposed amendment.
Accordingly, Plaintiff’s Motions will be denied as moot.
VII. Motion for More Definite Statement (Doc. 150)
Defendant Boyer moves for a more definite statement under Federal Rule of Civil
Procedure 12(e), arguing that Plaintiff’s Complaint does not comply with Rules 8 and 10
and is too vague and ambiguous to permit a response. (Doc. 150.) Boyer specifically argues
that the Complaint does not clearly identify which claims are asserted against him, whether
those claims are brought against him in his individual or official capacity, or which factual
allegations support each claim.
As discussed above, the Court will require Plaintiff to file an amended complaint
that complies with Rules 8 and 10. Because the amended complaint will supersede the
current Complaint, Boyer’s request for a more definite statement is moot.
//
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VIII. Leave to Amend
For the foregoing reasons, the Court will dismiss Plaintiff’s Complaint for failure to
comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Within 30 days of the
date of this Order, Plaintiff may file a first amended complaint curing the deficiencies
identified above.2
Plaintiff must clearly designate on the face of the document that it is the “First
Amended Complaint”, formatted in compliance with LR Civ 7.1. The first amended
complaint must be retyped or rewritten in its entirety and may not incorporate any part of
the original Complaint by reference. Plaintiff may include only one claim per count.
An amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963
F.2d 1258, 1262 (9th Cir. 1992), as amended (May 22, 1992); Hal Roach Studios, Inc. v.
Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989). After amendment, the Court
will treat the original Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of
action that was raised in the original Complaint is waived if it is not alleged in a first
amended complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
If Plaintiff files an amended complaint, Plaintiff must write short, plain statements
telling the Court: (1) the law Plaintiff believes was violated; (2) the name of the
Defendant(s) who violated the law; (3) exactly what each Defendant did or failed to do;
(4) how the action or inaction of that Defendant is connected to the violation of the law;
and (5) what specific injury Plaintiff suffered because of that Defendant’s conduct. See
Rizzo v. Goode, 423 U.S. 362, 371–72, 377 (1976).
Plaintiff must repeat this process for each person she names as a Defendant. If
Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific
injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for
failure to state a claim. Conclusory allegations that a Defendant or group of Defendants
2 The Court suggests Plaintiff review the Court’s informational Handbook for Self-
Represented Litigants, available at https://www.azd.uscourts.gov/proceeding-without-
attorney-0, prior to submitting an amended complaint. Plaintiff is also advised that the non-
profit Step Up to Justice provides free, advice-only consultation to federal self-represented
litigants. More information is available at https://www.azd.uscourts.gov/federal-court-
advice-only-clinic-phoenix (last visited October 13, 2026).
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has violated a law or constitutional right are not acceptable and will be dismissed.
If Plaintiff does not know the names of individual Defendants, she must list the
individual unknown Defendants as Defendant John (or Jane) Doe 1, John Doe 2, and so on
in the caption of heramended complaint. In the body of the amended complaint, Plaintiff
must allege facts to support how each particular Doe Defendant violated Plaintiff’s rights.
It is insufficient to simply list a category of Defendants (such as “John Does 1–10”) and
make conclusory allegations against them as a group.
Plaintiff should further be aware that under the Eleventh Amendment to the
Constitution of the United States, a state or state agency may not be sued in federal court
without its consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984);
Raygor v. Regents of Univ. of Minnesota, 534 U.S. 533, 541 (2002) (the supplemental
jurisdiction statute does not authorize federal district courts to exercise jurisdiction over
state law claims against nonconsenting States). Furthermore, “a state is not a ‘person’ for
purposes of section 1983.” Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th
Cir. 1991) (citation omitted).
IX. Warnings
A. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule
83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other
relief with a notice of change of address. Failure to comply may result in dismissal of this
action.
B. Possible Dismissal
Plaintiff is advised that if an amended complaint fails to state a claim upon which
relief can be granted, the Court will likely dismiss this action. If Plaintiff fails to timely
comply with every provision of this Order, including these warnings, the Court may
dismiss this action without further notice. See Ferdik, 963 F.2d at 1260–61 (a district court
may dismiss an action for failure to comply with any order of the Court).
For the foregoing reasons,
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IT IS ORDERED that:
1. Defendant Costco Wholesale Corporation’s Motion to Dismiss (Doc. 129) is
granted in part. Plaintiff’s Complaint is dismissed with leave to amend. The
Court does not reach Costco’s remaining arguments under Rule 12(b)(6).
2. Plaintiff may file a First Amended Complaint within thirty (30) days of the date
of this Order. Any First Amended Complaint must comply with the requirements
set forth in Section VIII of this Order. Failure to timely file a First Amended
Complaint that complies with this Order may result in dismissal of this action
without further notice.
3. The State Defendants’ Motion to Strike (Doc. 108) is denied as moot.
4. Plaintiff’s Motion to Strike State Defendants’ Motion to Strike and for Entry of
Default (Doc. 116) is denied.
5. Defendants Flynn Carey and Andrew Breavington’s Renewed Motion to
Dismiss (Doc. 36) is granted in part. Plaintiff’s claims for legal malpractice
and breach of fiduciary duty (Claim 9), civil conspiracy (Claim 10), spoliation
of evidence (Claim 13), and intentional infliction of emotional distress (Claim
15) are dismissed with prejudice as to Carey and Breavington. The remainder
of the Motion is denied without prejudice.
6. CVS Pharmacy’s Objection, Motion to Set Aside Clerk’s Entry of Default, and
Motion to Dismiss for Insufficient Service of Process (Doc. 123) is granted in
part and denied in part. The Clerk’s entry of default against CVS is set aside.
Plaintiff’s prior attempted service on CVS Pharmacy is quashed, and CVS
Pharmacy’s request for dismissal under Rule 12(b)(5) is denied.
7. Plaintiff’s Renewed Motion for Default Judgment against CVS Health
Corporation (Doc. 117) is denied as moot.
//
//
//
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8. Plaintiff’s Motion for Leave to File Supplemental Pleading (Doc. 118) and
Motion for Leave to Amend Complaint (Doc. 147) are denied as moot.
9. Defendant Boyer’s Motion for More Definite Statement (Doc. 150) is denied as
moot.
Dated this 13th day of October, 2026.
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