The Delong Co., Inc. v. Syngenta AG et al

Filing 144

MEMORANDUM AND ORDER (relates to case 2:17-cv-02614-JWL-JPO) granting (106) Defendants' Sealed Motion for Summary Judgment and defendants are awarded judgment on plaintiff's claims. Signed by District Judge John W. Lungstrum on 02/03/2021. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

IN RE: SYNGENTA AG MIR 162
CORN LITIGATION

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This Document Relates To:
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The DeLong Co., Inc. v. Syngenta AG, et al.,
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No. 17-2614-JWL
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MDL No. 2591
Case No. 14-md-2591-JWL

MEMORANDUM AND ORDER
This single case within this multi-district litigation (MDL) presently comes before
the Court on the motion by defendants (collectively “Syngenta”) for summary judgment
(Doc. # 106). For the reasons set forth below, the Court concludes that this action is barred
by the applicable statute of limitation.1 The Court therefore grants the motion, and
Syngenta is awarded judgment on plaintiff’s claims.

I.

Summary Judgment Standards

Summary judgment is appropriate if the moving party demonstrates that there is “no
genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In applying this standard, the court views the evidence and all
reasonable inferences therefrom in the light most favorable to the nonmoving party. See
Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). An issue

In light of this conclusion, the Court declines to address Syngenta’s other
arguments for summary judgment on particular claims.
1

of fact is “genuine” if “the evidence allows a reasonable jury to resolve the issue either
way.” See Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006).
A fact is “material” when “it is essential to the proper disposition of the claim.” See id.
The moving party bears the initial burden of demonstrating an absence of a genuine
issue of material fact and entitlement to judgment as a matter of law. See Thom v. BristolMyers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear
the ultimate burden of persuasion at trial need not negate the other party’s claim; rather,
the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim. See id. (citing Celotex, 477 U.S. at 325).
If the movant carries this initial burden, the nonmovant may not simply rest upon
the pleadings but must “bring forward specific facts showing a genuine issue for trial as to
those dispositive matters for which he or she carries the burden of proof.” See Garrison v.
Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). To accomplish this, sufficient evidence
pertinent to the material issue “must be identified by reference to an affidavit, a deposition
transcript, or a specific exhibit incorporated therein.” See Diaz v. Paul J. Kennedy Law
Firm, 289 F.3d 671, 675 (10th Cir. 2002).
Finally, the Court notes that summary judgment is not a “disfavored procedural
shortcut;” rather, it is an important procedure “designed to secure the just, speedy and
inexpensive determination of every action.” See Celotex, 477 U.S. at 327 (quoting Fed. R.
Civ. P. 1).
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II.

Analysis
A.

Accrual of the Cause of Action

Plaintiff The DeLong Co., Inc. (“DeLong”) is an exporter of Dried Distillers Grains
with Solubles (“DDGS”), a corn by-product. DeLong’s sole remaining claim is one of
negligence against Syngenta. Specifically, DeLong alleges that Syngenta was negligent in
its commercialization of Vitpera and Duracade, genetically-modified corn seed products,
before those products’ traits were approved for import by China. The parties agree that
DeLong’s negligence claim is governed by the substantive law of Wisconsin, where
DeLong resides. See In re Syngenta AG MIR 162 Corn Litig., 2019 WL 4013962, at *4
n.4 (D. Kan. Aug. 26, 2019) (Lungstrum, J.) (dismissing non-negligence claims in this
action); see also In re Syngenta AG MIR 162 Corn Litig., 131 F. Supp. 3d 1177, 1188 (D.
Kan. 2015) (Lungstrum, J.) (substantive law of each MDL plaintiff’s home state governs
that plaintiff’s claims).
The parties further agree that DeLong’s negligence claim is governed by
Wisconsin’s six-year statute of limitations. See Wis. Stat. § 893.52(1). The Wisconsin
Supreme Court has set forth the relevant law concerning the accrual of a tort claim as
follows:
A claim for relief accrues when there exists a claim capable of present
enforcement, a suable party against whom it may be enforced, and a party
who has a present right to enforce it. A tort claim is not capable of present
enforcement until the plaintiff has suffered actual damage. Actual damage
is harm that has already occurred or is reasonably certain to occur in the
future. Actual damage is not the mere possibility of future harm.

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See Hennekens v. Hoerl, 465 N.W.2d 812, 815-16 (Wis. 1991) (internal quotations and
citations and footnotes omitted).2
DeLong filed the instant suit against Syngenta on October 11, 2017. Thus, the issue
is whether DeLong’s negligence claim accrued before October 11, 2011. Syngenta argues
that DeLong’s claim is time-barred because before October 2011 DeLong already knew
that Syngenta had commercialized Viptera without Chinese approval and already believed
that Syngenta should be responsible for its costs incurred because of that
commercialization. In response, DeLong does not dispute that by October 2011 it already
knew of the allegedly negligent commercialization and the risk and possibility of harm
therefrom, but it argues that it had not actually suffered harm by that date (or at least that a
question of fact exists). The Court concludes that Syngenta has shown as a matter of law,
based on uncontroverted evidence, that DeLong had suffered harm by that date and that
DeLong’s claim therefore accrued more than six years before it filed this suit.
Syngenta first points to evidence that by October 2011 DeLong was already
preparing and taking steps to deal with the presence of MIR 162, the unapproved trait, in
the corn supply. Bo DeLong, a vice president who was deposed as DeLong’s corporate
representative, testified that after DeLong learned that a product containing MIR 162 was
being sold beginning in 2010 for harvest in 2011, DeLong began making preparations to

2

In addition, the Wisconsin Supreme Court has adopted the discovery rule, holding
that tort claims accrue on the date the injury is discovered or with reasonable diligence
should be discovered. See Hansen v. A.H. Robins, Inc., 335 N.W.2d 578, 583 (Wis. 1983).
DeLong has not argued, however, that it did not discover any injury at the time of its
occurrence, and thus DeLong has not argued that the discovery rule applies here.
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have corn products brought only to certain facilities. When asked whether there was a cost
to DeLong associated with those steps, Mr. DeLong testified as follows:
Well, we had to isolate it. We had to have a separate dump facility.
We didn’t know how much we were going to receive, although we thought
the amounts were going to be fairly minimal based on what Syngenta told us
or what we had been told as far as the amount that was grown initially the
first year.
And so we basically tied up, you know, a separate dump pit, leg dryer
and finished – so we had to have a dump pit, leg dryer, wet holding tank and
a finished product tank that we tied up for that corn to keep it isolated.
Mr. DeLong stated that DeLong began these preparations for isolation in August or
September 2011. In addition, in August 2011, Mr. DeLong drafted a document in which
he noted that Viptera had not been approved for import by China and listed a number of
steps that Syngenta and others in the industry should take to prevent DDGS produced from
Viptera corn from entering the export channel to China. In the final step, Mr. DeLong
stated that “[a]ll costs of all testing/diversion both on inbound corn and outbound DDGS
should be to Syngenta’s account.” In his deposition, Mr. DeLong answered in the
affirmative when asked whether that final step reflected his belief in 2011 “that Syngenta
should be responsible for reimbursing DeLong and others in the grain trade for the
additional costs that DeLong was incurring as a result of dealing with the
commercialization of MIR 162.” Thus, Syngenta has submitted evidence that DeLong was
already experiencing deleterious effects of Syngenta’s commercialization of Viptera –
thereby suffering harm – by August and September 2011.
DeLong responds by noting that Syngenta has not cited evidence that DeLong had
actually undertaken any of those listed steps, including testing, by October 2011. That may
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be so; but Mr. DeLong conceded in his deposition that when he drafted the document in
August 2011, DeLong “was incurring” costs from the allegedly negligent
commercialization. Moreover, when asked whether there were costs associated with
isolation of MIR 162 corn, Mr. DeLong indicated that there were such costs by responding
that the company had to “tie up” certain facilities.
DeLong also points to the fact that Mr. DeLong, when asked in his deposition
whether he could roughly quantify the costs associated with DeLong’s preparations for
isolating certain products, answered in the negative. Moreover, in response to the instant
motion, DeLong has submitted a declaration in which Mr. DeLong stated that his list of
steps from August 2011 was “forward-thinking and hypothetical,” that Syngenta did not
undertake any of the steps listed, and that in 2011, DeLong “incurred no quantifiable costs
associated with the diversion of inbound corn or DDGS or the testing of outbound corn or
DDGS that were attributable to Syngenta.” DeLong has not explained, however, why an
inability to quantify the costs incurred does not mean that no such costs or other types of
harm were incurred for purposes of determining when a cause of action accrued. The
Wisconsin Supreme Court has not required quantifiable financial harm, but merely that the
plaintiff suffered actual damage or harm, which may include non-monetary loss. See
Hennekens, 465 N.W.2d at 153. As noted, Mr. DeLong conceded that DeLong “was
incurring” costs at that time, and he also indicated that DeLong had incurred the cost of
having to “tie up” certain resources to isolate product, which suggests that that resources
(including manpower) were being diverted from other uses. Thus, Mr. DeLong conceded
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that DeLong had incurred costs, and the fact that he could not roughly quantify those costs
while sitting at his deposition does not controvert his testimony that costs had been
incurred. In his declaration, Mr. DeLong did not clarify or address at all his testimony that
DeLong had tied up certain facilities by August and September of 2011 and “was
incurring” costs at that time. Nor did he state that DeLong incurred no harm or damage
before October 2011.3 To the extent that such meaning was intended by his statement that
“no quantifiable costs were associated with the diversion of inbound corn,” such evidence
would be in direct conflict with his deposition testimony, and the Court would reject the
contrary declaration as a sham declaration. See Lantec, Inc. v. Novell, Inc., 306 F.3d 1003,
1016 (10th Cir. 2003) (sham affidavit in conflict with deposition testimony may be
disregarded). Thus, DeLong has not controverted Mr. DeLong’s testimony that DeLong
was already suffering harm before October 2011.
Syngenta has also submitted evidence that before October 2011 DeLong had begun
insisting in its contracts for the sale of DDGS that the buyer assume all financial risk from
any rejection of DDGS by China. This is evidence that the commercialization of Viptera
was already affecting DeLong’s business, as it would not be reasonable to believe that
DeLong was able to insist on those new risk-shifting contract terms without concessions

3

Moreover, Mr. DeLong stated in his declaration that DeLong did not incur
quantifiable costs for diversion or testing, but he did not address DeLong’s having to insist
on new contract terms or Drew McClymont’s concession, which evidence is discussed
below.
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or some other costs to DeLong. DeLong has not addressed this evidence in its response or
controverted this evidence of a cost or harm incurred by DeLong.
Finally, Drew McClymont, a DeLong employee, conceded in his deposition that by
mid-September 2011 DeLong’s business had been

impacted

by Syngenta’s

commercialization of a product containing MIR 162. DeLong argues that Mr. McClymont
stated only, as a hypothetical case, that if buyers were saying that they would not buy
because of the new contract term, then DeLong’s business would be impacted. The
testimony was not so limited, however. When first asked if DeLong’s business had been
impacted by September 2011, Mr. McClymont stated, referring to a particular
correspondence, “Well, in this case yes, if she’s saying that they’re not going to buy from
us because of this wording, that affected us.” He was then asked when DeLong was first
impacted by Syngenta’s commercialization, and whether it was in September 2011 or
before, he answered, “Yep, obviously it was affecting it on September 16 of 2011.” A little
while later in the deposition, he again confirmed that “DeLong’s business was impacted by
the commercialization of MIR 162 as of September 2011.” Thus, Mr. McClymont did not
merely testify that DeLong’s business would have been impacted if, hypothetically,
customers were refusing to buy at that time; rather, he confirmed in his testimony as a
general matter that the business had already been affected by that time.
Thus, Syngenta has presented evidence that DeLong suffered harm from the
allegedly negligent act by Syngenta prior to October 2011. DeLong has responded that it
could not quantify those costs, but it has not explained why that fact would have precluded
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it from bringing a claim against Syngenta before October 2011. DeLong has not submitted
any evidence, in the form of testimony or a declaration, that before October 2011 it did not
actually incur any costs or suffer any impact to its business from Syngenta’s
commercialization of Viptera. Accordingly, DeLong has not controverted Syngenta’s
evidence that DeLong did incur such harm. The Court therefore concludes as a matter of
law that DeLong’s claim accrued more than six years before it filed suit against Syngenta.
B.

Tolling

DeLong also argues that even if it filed suit more than six years after its claim
accrued, the statute of limitation was tolled during the period when Trans Coastal asserted
class claims in the MDL on behalf of a putative class of exporters. No such class was ever
certified, and Trans Coastal’s class claims were dropped in an amended complaint.
Syngenta notes that DeLong is essentially seeking to apply the federal American
Pipe tolling rule in a cross-jurisdictional context. In American Pipe and Construction Co.
v. Utah, 414 U.S. 538 (1974), the United States Supreme Court held that when class
certification has been denied, the filing of the class action is deemed to have tolled the
statute of limitations for those putative members of the class who then make timely motions
to intervene as named parties. See id. at 552-54. In a subsequent case, the Supreme Court
extended that tolling rule to apply to members of the putative class who wished to file
individual suits instead of intervening in a failed class action. See Crown, Cork and Seal
Co. v. Parker, 462 U.S. 345, 353-54 (1983). In this case DeLong seeks to apply such a
tolling rule based on the unsuccessful class action brought by Trans Coastal.
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The Tenth Circuit has instructed that when state law supplies the applicable statute
of limitations, the Court must look to the tolling law of the particular state to determine
whether to apply American Pipe tolling. See State Farm Mutual Auto. Ins. Co. v.
Boellstorff, 540 F.3d 1223, 1230 n.11 (10th Cir. 2008). Syngenta argues that American
Pipe tolling is not allowed under Wisconsin law.
DeLong relies on two Wisconsin tolling statutes. Wisconsin’s general tolling statute
provides that “[a] law limiting the time for commencement of an action is tolled by the
commencement of the action to enforce the cause of action to which the period of limitation
applies.” See Wis. Stat. § 893.13(2). The more specific statute that applies in this case, in
which DeLong relies on an action filed in a non-Wisconsin venue, provides that “[a]
Wisconsin law limiting the time for commencement of an action on a Wisconsin cause of
action is tolled from the period of commencement of the action in a non-Wisconsin forum
until the time of its final disposition in that forum.” See id. § 893.15(3). Thus, under either
statute, tolling would be available only if an action asserting DeLong’s present Wisconsin
cause of action was commenced in Trans Coastal’s suit in federal court.
DeLong argues that its claim was asserted in Trans Coastal’s suit because that class
action included the same negligence claim asserted under the laws of all states in which
the putative class members resided. DeLong was not a party to that suit, however – it was
not a named plaintiff, and no class was ever certified. Thus, DeLong’s particular claim, by
which it seeks redress for particular injuries to it, was not asserted in the class action, and

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an action asserting DeLong’s cause of action was not previously commenced in federal
court. Thus, on their face, the tolling statutes would not permit tolling in this case.
DeLong cites Cedillo v. TransCor America, LLC, 131 F. Supp. 3d 734 (M.D. Tenn.
2015), in which the court applied American Pipe tolling to toll a statute of limitations
provided by Wisconsin law, see id. at 744, but that case does not in fact support DeLong’s
position here. In Cedillo, Wisconsin law supplied the limitations period for one plaintiff’s
federal cause of action under 42 U.S.C. § 1983, and the court applied federal law in holding
that American Pipe tolling applies to federal Section 1983 claims. See id. Thus, the case
says nothing about whether Wisconsin tolling law includes American Pipe tolling.4
DeLong also cites an unpublished, non-precedential opinion by the Wisconsin Court
of Appeals, Sajdak v. Michaels Pipeline Construction, Inc., 1982 WL 171848 (Wis. Ct.
App. Nov. 10, 1982) (unpub. op.). DeLong notes the Sajdak court’s statement that if Wis.
Stat. § 893.13(2) applied in that case, it “would toll” the statute of limitation based on a
class action suit in which the plaintiffs were merely putative plaintiffs. See id. at *2. The
court concluded, however, that the tolling statute did not apply retroactively and thus did
not apply in that case. See id. Accordingly, the court had no occasion to address directly
whether the statute allowed for tolling based on a prior uncertified class action (like
American Pipe tolling). Moreover, in Sajdak the prior class action had been brought in a
Wisconsin state court, and therefore the case did not involve the type of cross-jurisdictional

4

The court cited Wis. Stat. § 893.13 only to support its conclusion that in Wisconsin
(and the other states at issue there) tolling as a general matter suspends a statute of
limitation instead of renewing it. See Cedillo, 131 F. Supp. 3d at 744 & n.6.
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American Pipe tolling urged here. For these reasons, the Court does not consider Sajdak,
a non-precedential case, as providing relevant authority that Wisconsin law allows for
tolling in the present case.
Thus DeLong has not shown that American Pipe tolling, based on a prior federal
class action in which the plaintiff was only a putative class member, is authorized under
Wisconsin law. As the Court has previously ruled, in the absence of authority specifically
recognizing cross-jurisdictional American Pipe tolling under a state’s law, the Court will
not import a new tolling rule into that state’s limitations law. See In re Urethane Antitrust
Litig., 663 F. Supp. 2d 1067, 1082 (D. Kan. 2009) (Lungstrum, J.) (citing cases).5
Accordingly, because no Wisconsin authority directly supports cross-jurisdictional
American Pipe tolling under that state’s limitations law, the Court will not permit such
tolling in this case.
Accordingly, the Court concludes as a matter of law that DeLong’s claim accrued
more than six years before it filed the instant action, and DeLong has not established a

5

The Court is especially disinclined to do so because cross-jurisdictional American
Pipe tolling has been recognized in such a small minority of states. See Urethane, 663 F.
Supp. 3d 1082 & n.10 (noting that only two states had recognized such tolling at that time);
see also Jones v. BMW of N. Am., LLC, 2020 WL 5752808, at *5 n.5 (M.D.N.C. Sept. 25,
2020) (noting that “few states have adopted cross-jurisdictional tolling and federal courts
have been wary to extend cross-jurisdictional tolling where states have not decided the
issue”).
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basis for tolling the applicable six-year statute of limitation. Therefore, the present action
is time-barred, and summary judgment is warranted in favor of Syngenta.6

IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ motion for
summary judgment (Doc. # 106) is hereby granted, and defendants are awarded judgment
on plaintiff’s claims.

IT IS SO ORDERED.

Dated this 3rd day of February, 2021, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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DeLong does not dispute that if it suffered harm from the commercialization of
Viptera more than six year before filing suit and no tolling applies, summary judgment is
appropriate with respect to DeLong’s entire suit. DeLong claims that Syngenta acted
negligently with respect to its commercialization of both Viptera and Duracade, but
DeLong insists in its response brief that its negligence claim may not be subdivided
between Viptera and Duracade, and that the commercialization of Duracade did not cause
it any separate harm. Thus, the Court concludes that DeLong’s entire claim accrued prior
to October 2011, by which time it had already suffered harm from the commercialization
of Viptera.
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