Kansas Wheat Alliance, Inc. et al v. Thunderbird Seed Conditioning LLC et al
Filing
32
ORDER granting 21 Defendants Thunderbird Seed Conditioning, LLC and Thunderbird Commodities LLC's Motion for Judgment on the Pleadings Under Fed. R. Civ. P. 12(c). Entry of judgment in favor of Defendant shall be stayed for a period of 10 days following this Order, in the event Plaintiffs choose to file an Amended Complaint, for which leave is granted. By Magistrate Judge Michael E. Hegarty on 2/7/2013. (mehcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01171-MEH
KANSAS WHEAT ALLIANCE, INC., and
KANSAS STATE UNIVERSITY RESEARCH FOUNDATION,
Plaintiffs,
v.
THUNDERBIRD SEED CONDITIONING, LLC,
THUNDERBIRD COMMODITIES, LLC, and
JOHN DOES 1-50,
Defendants.
ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendants Thunderbird Seed Conditioning, LLC and Thunderbird
Commodities LLC’S Motion for Judgment on the Pleadings Under Fed. R. Civ. P. 12(c) [filed
September 25, 2012; docket #21]. The Court inherited the motion upon consent of the parties
pursuant to 28 U.S.C. § 636(c). (Dockets ##24, 25.) The matter is fully briefed, and the Court
determines that oral argument would not materially assist its adjudication of the Motion. For the
reasons described below, Defendants’ Motion is granted but with leave for Plaintiffs to amend
within 10 days of the date of this Order.
BACKGROUND
I.
Factual Allegations
The following are factual allegations (as opposed to legal conclusions, bare assertions or
merely conclusory allegations) made by the Plaintiffs in their Complaint [docket #1], which are
taken as true for analysis under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
Plaintiff Kansas Wheat Alliance, Inc. (“KWA”) is a not-for-profit corporation that promotes
research and development of wheat varieties to benefit farmers and consumers. (Docket #1 at ¶ 3.)
Kansas State University Research Foundation (“KSURF”), an involuntary Plaintiff, engages in
similar work. (Id. ¶ 4.) Over time, KSURF has developed several plant varieties protected by the
Plant Variety Protection Act, 7 U.S.C. § 2121 et seq. (“PVPA”), including a variety known as Fuller
hard red winter wheat (“the Fuller variety.”) (Id. at ¶ 8.) On July 16, 2008, KSURF received a
Plant Variety Protection Certificate (“PVP Certificate”) under the seal of the Plant Variety
Protection Office (“PVPO”) for the Fuller variety. (Id.) The PVPO recorded the PVP Certificate
accordingly. (Id.) The Fuller variety PVP Certificate has a duration of twenty (20) years from the
date of issuance, meaning it will lapse on July 16, 2028. (Id.) KSURF granted KWA an exclusive
license to make, have made, use, sell, and offer for sale the Fuller variety, as well as the right to sublicense. (Id.)
Plaintiffs allege that Defendants Thunderbird Seed Conditioning LLC and Thunderbird
Commodities LLC (collectively the “Thunderbird Defendants”) conditioned one or more of KWA’s
federally protected varieties for reproductive purposes without KWA’s authorization. (Id. at ¶ ¶ 1520.) Plaintiffs only authorized sales of Fuller variety wheat seed with written notice containing
statutorily designated language signifying that (1) the seed was protected under the PVP; (2)
unauthorized propagation or multiplication of the seed was prohibited; (3) and the use of the seed
by the purchaser was authorized only for purposes of growing a commercial crop of grain. (Id. at
¶ 21.) Plaintiffs required such notice on all bags of wheat seed they sold and on notices
accompanying all bulk sales of their wheat seed. (Id.) Additionally, Plaintiffs placed PVP notices
on their marketing and promotional materials for their protected wheat varieties. (Id.)
2
According to Plaintiffs, the Thunderbird Defendants conditioned a substantial quantity of
KWA’s protected varieties for seed purposes. (Id. at ¶ 22.) Plaintiffs assert that each bushel of
conditioned seed can be planted, harvested, and replanted to produce over four million fifty-pound
bags of seed in five generations. (Id.) The Thunderbird Defendants’ conditioning of the protected
varieties lacks the rigorous production standards employed by Plaintiffs and the governmental
certification required to sell the Fuller variety. (Id. at ¶ 23.) In addition to conditioning, the
Thunderbird Defendants also dispensed KWA’s protected varieties without restriction and assisted
Doe Defendants in farmer-to-farmer transfers involving KWA’s protected varieties. (Id. at ¶ 2627.)
II.
Procedural History
Plaintiffs initiated this action on May 7, 2012, seeking damages, injunctive relief, and
attorney’s fees under the PVPA. They allege that the Thunderbird Defendants, along with fifty (50)
Doe Defendants, infringed on KWA’s federally protected wheat varieties by conditioning the
varieties for reproduction and unlawfully distributing or facilitating the distribution of the varieties
for other farmers. Among other forms of injunctive relief, Plaintiffs seek to enjoin Defendants from
further sale or conditioning of Plaintiffs’ protected varieties and ultimately achieve complete
destruction of all Fuller variety seed in Defendants’ possession or control.
The Thunderbird Defendants filed an answer on June 6, 2012, and the pending Motion on
September 25, 2012. (Dockets #8, 21.) Defendants argue that Plaintiffs’ Complaint lacks sufficient
allegations of fact to satisfy the pleading standards set forth in Fed. R. Civ. P. 8 and clarified by the
Supreme Court in Iqbal, supra. In their Response, Plaintiffs ask the Court to apply the “safe harbor”
provisions of Fed. R. Civ. P. 84, because Plaintiffs have followed the pleading requirements for
patent cases as established in Appendix Form 18. Additionally, Plaintiffs note that pleadings of the
3
same style in other PVPA cases have not been dismissed under Fed. R. Civ. P. 12(b)(6). In the event
the Court finds that the Complaint is inadequate, Plaintiffs request an opportunity to amend in order
to add additional facts that would increase the plausibility of their claims. Defendants’ Reply
contends that the “safe harbor” provisions of Fed. R. Civ. P. 84, to the extent they exist, are not
available to Plaintiffs because Appendix Form 18 applies to patent cases, which are materially
distinguishable from actions under the PVPA.
LEGAL STANDARDS
I.
Rule 12(c)
A motion for judgment on the pleadings must be evaluated by this Court using the same
standard for motions under Rule 12(b)(6), Brown v. Montoya, 662 F.3d 1152, 1160 n.4 (10th Cir.
2011), the principal difference being a 12(c) motion is typically filed after the filing of an answer
which asserts a failure to state a claim under Rule 12(b)(6).
II.
Rule 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. at 678
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of
a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong
analysis. First, a court must identify “the allegations in the complaint that are not entitled to the
assumption of truth,” that is, those allegations which are legal conclusions, bare assertions, or merely
conclusory. Id. at 678-80. Second, the Court must consider the factual allegations “to determine
if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss. Id. at 680.
4
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that
they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged
their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d
1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required to state a plausible claim will vary based on
context.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while
the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a
complaint, the elements of each alleged cause of action may help to determine whether the plaintiff
has set forth a plausible claim. Khalik, 671 F.3d at 1191.
III.
Rule 8
The adequacy of pleadings is governed by Federal Civil Procedure Rule 8(a)(2), which
requires that a complaint contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This rule “requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal
citations omitted). Determining whether the allegations in a complaint are “plausible” is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679. If the “well pleaded facts do not permit the court to infer
more than the mere possibility of misconduct,” the complaint should be dismissed for failing to
“show[ ] that the pleader is entitled to relief” as required by Rule 8(a)(2). Id.
ANALYSIS
Both parties agree that in the analysis in which I am to engage, I would draw on my judicial
experience and common sense in determining when a complaint states a plausible claim for relief.
5
Iqbal, 556 U.S. at 679. I view this as somewhat akin to a “know it when I see it” analysis. See
Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). In the current situation,
using my experience and common sense, I know it is there, but on the current Complaint I do not
see it. I believe one could take the Complaint and use it cookie-cutter style for every lawsuit the
Plaintiffs bring. If hypothetically this Complaint was a template on a word processing system with
the ability to [add field], the only allegations that might have been added are the following:
1.
Defendants are named Thunderbird Seed Conditioning LLC and Thunderbird
Commodities LLC.
2.
The two Defendants use the same mailing address in Towner, Colorado.
3.
The latter Defendant changed its name from Thunderbird Seed Conditioning LLC
#2 on April 9, 2012.
4.
The Defendants’ registered agent is Monte L. Stum at 76475 Road J, Towner, CO
81071 or 322 Hwy. 96, Sheridan Lake, CO 81071.
5.
Thunderbird (to which Plaintiffs refer the two Defendants) conditioned a “substantial
quantity” of Plaintiff’s federally protected wheat grain [Note: Even here, this fact
might appear in all of Plaintiffs’ complaints and, thus, would not be individualized
to this case].
Otherwise, I cannot find another allegation of fact particularized to this case. The other allegations
recite elements of the law, including elements that would entitle the Plaintiffs to an award of
attorney’s fees and costs under Section 2565 of the PVPA.1
1
Plaintiffs suggest their Complaint is the equivalent of Appendix Form 18 of the Federal Rules of
Civil Procedure. Form 18 is designed for patent cases. Rule 84, Fed. R. Civ. P., mandates that
the forms are sufficient for pleading. I agree. Automated Transactions, LLC v. First Niagara
Financial Group, Inc., 10–CV–00407(A)(M), 2010 WL 5819060, *4 (W.D.N.Y. Aug. 31, 2010).
However, I also observe that the Federal Rules of Civil Procedure provide a separate form (Form
19) for copyright infringement and unfair competition claims. To me, this suggests that Form 18
6
On this Complaint, I can find the possibility of misconduct. Without reference to a single
particular act that violates the PVPA, I cannot find more than the possibility of misconduct. As
Defendants imply (although argue that it is insufficient2), in the opposition brief and at the
Scheduling Conference in this matter Plaintiffs discussed information in their possession to back up
their allegations. Thus, I do not believe leave to amend would be futile. See Rosenfield v. HSBC
Bank, USA, 681 F.3d 1172, 1189 (10th Cir. 2012). Given the “discretionary policy on freely
permitting leave to amend,” id., coupled with the record as it exists here, justice requires that
Plaintiffs be given an opportunity to submit an Amended Complaint that complies with the pleading
rules.
CONCLUSION
For the reasons stated above, Defendants Thunderbird Seed Conditioning, LLC and
Thunderbird Commodities LLC’S Motion for Judgment on the Pleadings Under Fed. R. Civ. P.
12(c) [filed September 25, 2012; docket #21] is granted. Entry of judgment in favor of Defendants
shall be stayed for a period of 10 days following this Order, in the event Plaintiffs choose to file an
Amended Complaint, for which leave is hereby granted.
is not designed to cover all intellectual property claims, but is instead confined to claims for
patent infringement. In light of the plain language of Form 18 and the discussion in Automated
Transactions concerning the conflict between Iqbal/Twombly and Rule 84, I will not extend the
safe harbor of Form 18 to the PVPA.
The objections to amending the Complaint raised by Defendants at page 9 of their Reply may
indeed be dispositive of Plaintiffs’ right to recover but are appropriately raised in a motion for
summary judgment.
2
7
Dated at Denver, Colorado, this 7th day of February, 2013.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?