Mignone v. Monsanto Company et al
Order denying 8 motion to remand. Signed by Judge Vince Chhabria on September 15, 2022. (crblc4, COURT STAFF) (Filed on 9/15/2022)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IN RE: ROUNDUP PRODUCTS
MDL No. 2741
This document relates to:
ORDER DENYING MOTION FOR
Case No. 16-md-02741-VC
Mignone v. Monsanto, Case No. 21-cv-0501
Re: Dkt. No. 8
Mignone is a California resident who filed his claims in California state court, naming
Monsanto, Wilbur-Ellis Nutrition, and Wilbur-Ellis Company as defendants. Monsanto is not a
California resident, but Wilbur-Ellis Nutrition and Wilbur-Ellis Company are California
residents. Despite the absence of complete diversity between the parties, Monsanto removed the
case to federal court, contending that diversity jurisdiction exists because Wilbur-Ellis Nutrition
and Wilbur-Ellis Company were fraudulently joined and their citizenship should not be
considered for purposes of diversity jurisdiction. Mignone has filed a motion to remand the case
to state court. The motion to remand is denied.
Amended Pretrial Order No. 244 also involved Wilbur-Ellis Nutrition and Wilbur-Ellis
Company, and it guides the analysis here. In that order, the Court held that Wilbur-Ellis
Nutrition was fraudulently joined because “it has never manufactured, distributed, or sold
Roundup.” Dkt. No. 13711. In the same order, the Court held that Wilbur-Ellis Company was
fraudulently joined because “Wilbur-Ellis Company markets and distributes Roundup in the
agricultural and professional markets only,” and Roybal (the plaintiff) alleged exposure to
Roundup only through residential use. In finding that Wilbur-Ellis Company had been
fraudulently joined, the Court rejected Roybal’s argument that Wilbur-Ellis Company was a
“massive company” that “may have distributed Roundup to an entity that then sold it to” Roybal.
The Court found that “[t]his speculation, without any evidentiary support, is insufficient to
overcome the clear and convincing evidence that Wilbur-Ellis Company did not market or
distribute” Roundup for residential use.
Here, Wilbur-Ellis Nutrition was fraudulently joined because Monsanto again provides a
sworn declaration stating that Wilbur-Ellis Nutrition has never manufactured, sold, or distributed
Roundup. Monsanto also again provides a sworn declaration that Wilbur-Ellis Company only
distributed and sold Roundup to the agricultural and professional markets. This declaration is
fatal to Mignone’s claims against Wilbur-Ellis Company. While Mignone’s complaint did not
make clear whether he was exposed to Roundup through agricultural or professional use, the fact
sheet that Mignone later served on Monsanto states that he was only exposed to Roundup in the
residential context. Like Roybal, Mignone speculates that Wilbur-Ellis Company may have
distributed Roundup to which he was exposed, but as with Roybal, this unsupported contention
does not overcome the clear and convincing evidence that Wilbur-Ellis Company did not market
or distribute Roundup for residential use. Thus, Wilbur-Ellis Company was also fraudulently
Mignone also argues that Monsanto missed the deadline for removal. Under 28 U.S.C. §
1446(b), a defendant has 30 days to file a notice of removal after receiving the initial pleading
setting forth the claims for relief. However, “if the case stated by the initial pleading is not
removable,” then a notice of removal may be filed within 30 days after the defendant receives
“an amended pleading, motion, order, or other paper from which it may first be ascertained that
the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3).
Here, Mignone filed his complaint in August 2020, alleging product liability, failure to
warn, and negligence claims against Monsanto and both Wilbur-Ellis entities. Monsanto,
however, did not file for removal until January 2021. Mignone thus argues that the 30-day clock
for removal started in August 2020 and that Monsanto missed the removal window by waiting
until January 2021 to file for removal. The argument fails because the complaint did not make
clear that Mignone was alleging claims based solely on residential use of Roundup. The
complaint lumps the Wilbur-Ellis entities together—referring to both as “Defendants”—and it
makes only vague allegations that they manufactured, distributed, and sold Roundup to which
Mignone was exposed, leaving open the possibility that Mignone was exposed in a professional
or agricultural context. See, e.g., Complaint ¶ 156 (“Plaintiff used and/or was exposed to the use
of Roundup products in their intended or reasonably foreseeable manner.”). Nowhere does the
complaint make clear that Mignone only bought and used Roundup for residential purposes.
Monsanto did not learn that Mignone was exposed only through residential use until January 7,
2021, when Mignone served his fact sheet to Monsanto, which stated that Mignone’s use of
Roundup occurred solely in the residential context. Upon receipt of the fact sheet, Monsanto
timely removed the case to federal court within 30 days under 28 U.S.C. § 1446(b)(3).
IT IS SO ORDERED.
Dated: September 15, 2022
United States District Judge
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