Superior Edge, Inc. v. Monsanto Company et al

Filing 184

MEMORANDUM OPINION AND ORDER granting in part and denying in part plaintiff's 86 Motion to Dismiss. 1. Motion is granted with respect to Monsanto's counterclaim for Professional Negligence (Count VII). That claim is dismissed with prejudice. 2. Motion is denied in all other respects.(Written Opinion). Signed by Judge John R. Tunheim on September 8, 2014. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SUPERIOR EDGE, INC.,

Civil No. 12-2672 (JRT/FLN)
Plaintiff,

v.
MONSANTO COMPANY and SITESPECIFIC TECHNOLOGY
DEVELOPMENT GROUP, INC.,

MEMORANDUM OPINION AND
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO DISMISS
COUNTERCLAIMS

Defendants.
Walter Joseph Gates, III, WALTER J. GATES, 510 Long Street, Suite
109, Mankato, MN 56001; and William G. Osborne, WILLIAM G.
OSBORNE, P.A., 1305 East Robinson Street, Orlando, FL 32801, for
plaintiff.
James F. Bennett, Jennifer S. Kingston, and Robert F. Epperson, Jr.,
DOWD BENNETT LLP, 7733 Forsyth Boulevard, Suite 1900, St. Louis,
MO 63105; and Dean B. Thomson, Lucas Clayton, and Richard G. Jensen,
FABYANSKE WESTRA HART & THOMSON, P.A., 333 South
Seventh Street, Suite 2600, Minneapolis, MN 55402, for defendants.

This case arises out of a software development and license agreement between
Plaintiff Superior Edge, Inc. (“SEI”) and Defendant Monsanto Company (“Monsanto”).
Pursuant to the agreement, SEI was to develop software for Monsanto to assist in
Monsanto’s seed sales initiatives. Monsanto brings counterclaims for breach of contract,
money had and received, fraudulent and negligent inducement, conversion, and
professional negligence, based primarily on its allegation that SEI represented that it had
the infrastructure and capacity to develop software satisfying Monsanto’s objectives but

27

failed to develop and deliver that promised software under the agreement. SEI moves to
dismiss all but the breach of contract counterclaim alleged in Count I. Because the Court
finds that Monsanto has stated plausible claims for relief with respect to its counterclaims
for breach of contract, money had and received, fraudulent and negligent inducement,
and conversion, the Court will deny SEI’s motion as to those counterclaims. The Court
will, however, grant SEI’s motion as to the claim for professional negligence, because
neither Minnesota nor Missouri courts recognize such a cause of action against computer
professionals.
BACKGROUND1
I.

THE RELATIONSHIP BETWEEN THE PARTIES
Monsanto is a global company that produces and sells commercial seeds and other

agricultural products.

(Answer to Am. Compl. & Countercls. (“Countercls.”), ¶ 1

Jan. 10, 2014, Docket No. 108.)2 SEI describes itself as a software and data company

1

The Court includes background information only to the extent necessary to rule on the
present motion, and recites the facts accepting the allegations in Monsanto’s counterclaims as
true. See Magee v. Trs. of Hamline Univ., Minn., 747 F.3d 532, 534-35 (8th Cir. 2014)
(explaining that on a motion to dismiss the court “assumes as true all factual allegations in the
pleadings, interpreting them most favorably to the nonmoving party”). A recitation of the facts
surrounding SEI’s allegations and claims can be found in the Court’s previous orders. See
Superior Edge, Inc. v. Monsanto Co., 964 F. Supp. 2d 1017 (D. Minn. 2013); see also Superior
Edge, Inc. v. Monsanto Co., Civ. No. 12-2672, 2013 WL 6405362 (D. Minn. Dec. 6, 2013).
2

Monsanto originally filed its counterclaims on September 26, 2013. (Answer to Am.
Compl. & Countercls., Sept. 26, 2013, Docket No. 75.) SEI brought the present motion to
dismiss on October 28, 2013. (Mot. to Dismiss, Oct. 28, 2013, Docket No. 86.) On
December 13, 2013, pursuant to the Court’s order dismissing without prejudice one of the claims
in SEI’s amended complaint brought against Defendant Site Specific Technology Group, Inc.,
SEI filed a second amended complaint to correct the deficiencies identified by the Court with
(Footnote continued on next page.)

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that specializes in creating customized technology-based solutions for businesses. (Id. ¶
2.) In 2008, Monsanto began a software development effort aimed at “enhanc[ing]
execution of sales by helping farmers make more educated decisions about their
purchases of seed products.” (Id. ¶ 8.) Monsanto hoped to obtain a software product that
would (1) enable its personnel and dealers in the field to generate a field guide about the
general conditions and history of a growing location and recommend a specific seed
prescription for that location; and (2) obtain, organize, and present information about the

____________________________________
(Footnote continued.)

respect to that claim. (Mem. Op. & Order at 11, Dec. 6, 2013, Docket No. 99; Second Am.
Compl., Dec. 13, 2013, Docket No. 102.) Monsanto filed an answer to the Second Amended
Complaint which included an identical version of its counterclaims that it had previously filed on
September 26, 2013. (Answer to Am. Compl. & Countercl., Jan. 10, 2014, Docket No. 108.) An
amended or later-filed pleading supersedes an original pleading, and renders the original
pleading “without legal effect.” In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000).
Therefore the counterclaims filed at Docket Number 108 superseded the originally filed
counterclaims, and are the operative counterclaims in this case. See Cent. Ill. Pub. Serv. Co. v.
Indus. Oil Tank & Line Cleaning Serv., 730 F. Supp. 1498, 1502 (W.D. Mo. 1990) (“The
amended complaint supersedes the original complaint and, thus, [the original complaint] no
longer is part of this action. Accordingly, the new answer and counterclaims supersede the
original answer and counterclaims.” (citations omitted)). Although SEI’s present motion to
dismiss was brought with respect to the original counterclaims, and SEI never formally filed a
motion to dismiss the later-filed counterclaims, the Court concludes that it is appropriate to
construe SEI’s pending motion to dismiss as relating to the operative counterclaims filed at
Docket Number 108. The two sets of counterclaims are identical and the grounds for dismissal
raised in SEI’s motion therefore apply equally to the later-filed counterclaims. Additionally,
Monsanto has made no argument to the effect that SEI’s motion is now moot. Accordingly, the
Court will consider SEI’s motion to dismiss as a motion to dismiss the counterclaims filed on
January 10, 2014, in response to the second amended complaint. See Cartier v. Wells Fargo
Bank, N.A., 547 F. App’x 800, 804 (8th Cir. 2013) (“In this case, the parties and the district court
considered the amended complaint and treated the already pending motion to dismiss as a motion
to dismiss the amended complaint. Appellants raised no objection in the district court to this
procedure . . . . Under these circumstances, we conclude the district court acted within its
discretion to treat the motion to dismiss the original complaint as a motion to dismiss the
amended complaint.”).

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unique attributes of individual farms and farmers to allow Monsanto sales representatives
to make customized recommendations for products. (Id. ¶ 9.)
In late 2008, Monsanto met the founder and chief executive officer of SEI who
represented that SEI had the engineers and infrastructure to deliver complex, innovative
technology, and had considerable experience in the agricultural industry. (Id. ¶ 13.) In a
series of meetings that took place throughout 2009, SEI represented that it had the
infrastructure and capability to develop software that would meet Monsanto’s objectives.
(Id. ¶¶ 15-18.) In particular, SEI represented that it had a software system for creating
personalized sales proposals known as SalesEdge that could be adapted to fit Monsanto’s
needs. (Id. ¶ 15.)

II.

THE AGREEMENT
On August 7, 2009, Monsanto and SEI executed a Software Development and

License Agreement (“the Agreement”) with an effective date of March 1, 2009. (Id.
¶ 19.) The Agreement required SEI to “tailor and/or customize SEI’s SalesEdge . . .
software, develop new capabilities, and provide services for the purpose of enhancing
Monsanto’s sales execution.” (Compl., Ex. B at 11, Oct. 19, 2012, Docket No. 1.)3 The

3

Page number references are to the CMECF pagination unless otherwise noted. The
Court refers here to the Agreement that was filed as an exhibit to SEI’s complaint, even though
the Agreement was not attached to Monsanto’s counterclaims. Generally a motion to dismiss
under Rule 12(b)(6) must be treated as a motion for summary judgment if “matters outside the
pleadings are presented to and not excluded by the court.” Fed. R. Civ. P. 12(d). Although
“matters outside the pleading may not be considered in deciding a Rule 12 motion to dismiss,
documents necessarily embraced by the complaint are not matters outside the pleading.”
Enervations, Inc. v. Minn. Mining & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004) (internal
(Footnote continued on next page.)

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Agreement contained a Development Plan which included “initial requirements,
specifications, features, and functionalities” of the software SEI was to develop as well as
“a general overview and timetable for development and implementation of the SEI
schedule for deliverables, test protocols and procedures, development objectives, and
assumptions regarding ongoing contributions and research activities.” (Id., Ex. B at 19.)
The Development Plan set forth in detail the deliverables – the proposed features and
functionality of the software – that SEI was responsible for developing. (Id., Ex. B at 4249.)

The Agreement provided that Monsanto would pay SEI exclusivity payments,

development fees, and user fees. (Id., Ex. B at 23-24.) The Agreement also contained
various provisions governing the intellectual property rights of the parties with respect to
the software developments. (Id., Ex. B at 11, 15, 21-22, 25.)

III.

SEI’S DEVELOPMENT ACTIVITIES
In the initial phases of the Agreement’s implementation Monsanto and SEI met

frequently to discuss the software development. (Countercls. ¶ 36.)

In early 2010

Monsanto and SEI continued to discuss ideas for the production of customized sales
proposals for customers in the field. (Id. ¶ 37.) Because SEI’s software did not yet have
____________________________________
(Footnote continued.)

quotation marks omitted). Monsanto’s counterclaims cite to the Agreement extensively and
bring claims for its breach, indicating that the document is necessarily embraced by Monsanto’s
counterclaims. Furthermore, Monsanto indicated that, but for its belief that the Agreement
contained confidential information and could not be filed in the absence of a protective order
allowing Monsanto to file the Agreement under seal, it would have attached the Agreement to its
counterclaims. (Countercls. ¶ 20 n.1.) Accordingly, the Court considers the contents of the
Agreement in ruling on the present motion to dismiss.

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this capability, SEI was manually producing the proposals. (Id. ¶ 38) Although this was
not a commercially viable approach for Monsanto long-term, it used the manually
produced proposals for a period of time during which SEI was to be developing the
software that would allow their production to be automated. (Id.) In January 2011
Monsanto informed SEI that it would require software with specific features to be
completed by May 2011 in order to ensure that automated production of the sales
proposals could be demonstrated to Monsanto personnel at its June and July 2011
national sales meetings. (Id. ¶¶ 41-42.)
During early 2011 Monsanto became increasingly concerned with SEI’s ability to
timely deliver the promised software developments. (Id. ¶ 43.) SEI would not allow
Monsanto to review its source code which “heightened” Monsanto’s concerns about the
status of the software. (Id. ¶ 45.) In light of these concerns, Monsanto implemented a
backup plan and engaged Defendant Site-Specific Technology Development Group, Inc.
(“SST”) – another software development company with whom Monsanto had previously
contracted – to also develop software with the desired functionality. (Id. ¶¶ 12, 46.) In
the spring of 2011 Monsanto “repeatedly tested SEI’s software application [and]
encountered a host of different difficulties and error messages.” (Id. ¶¶ 48-49.) In light
of these issues, Monsanto could not present the software at its national sales meetings.
(Id. ¶¶ 50-52.)

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IV.

TERMINATION OF THE AGREEMENT
On August 16, 2011 Monsanto met with SEI to discuss “its disappointment with

the numerous development and milestone failures.” (Id. ¶ 56.) At the meeting, SEI was
still unable to present or deliver the software development code it had promised under the
Agreement. (Id.) Monsanto repeated its concerns in writing on August 29, 2011. (Id.
¶ 58.) SEI responded claiming that Monsanto had breached the Agreement in various
ways. (Id. ¶ 59.) Shortly thereafter, Monsanto provided formal notice of SEI’s breach
and notice that it was terminating SEI’s development services effective 120 days from
September 26, 2011 – the date of the notice. (Id. ¶ 60.) Between August 2009 and
January 2012 Monsanto paid SEI a total of $6,716,665 “which it purportedly owed to SEI
pursuant to the terms of the Agreement.” (Id. ¶ 83.)
Based on these allegations, Monsanto brings counterclaims against SEI for breach
of the Agreement, money had and received, fraudulent and negligent inducement,
conversion, and professional negligence.

ANALYSIS
I.

STANDARD OF REVIEW
In reviewing a motion to dismiss brought under Rule 12(b)(6), the Court considers

all facts alleged in the complaint as true to determine if the complaint states “‘a claim to
relief that is plausible on its face.’” See Magee v. Trs. of Hamline Univ., Minn., 747 F.3d
532, 535 (8th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility” and
therefore must be dismissed. Id. (internal quotation marks omitted). Although the Court
accepts the complaint’s factual allegations as true, it is “‘not bound to accept as true a
legal conclusion couched as a factual allegation.’” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Therefore, to
survive a motion to dismiss, a complaint must provide more than “‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555).

II.

INCORPORATION BY REFERENCE
SEI first argues that Counts II through VII of Monsanto’s counterclaims should be

dismissed without prejudice for failure to comply with Federal Rule of Civil Procedure
10, which requires parties to state claims or defenses “in numbered paragraphs, each
limited as far as practicable to a single set of circumstances” and state “each claim
founded on a separate transaction or occurrence . . . in a separate count” where “doing so
would promote clarity.” Fed. R. Civ. P. 10. SEI argues that Monsanto has violated this
rule by unnecessarily incorporating in succeeding counts, the allegations of all prior
counts. For example, Count VI alleges a claim for conversion, but incorporates by
reference all previous paragraphs in the counterclaims – including the background facts,
two claims for breach of contract, a claim for money had and received, a claim for

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fraudulent inducement, and one for negligent inducement.

(Countercls. ¶ 153

(“Monsanto repeats, adopts and incorporates herein by reference the allegations made in
paragraphs 1 through 152 of these Counterclaims.”).) SEI contends that although “it is
possible, with sufficient effort, to sort out which is which, that burden should not be
placed on SEI.” (Pl.’s Mem. in Supp. of Mot. to Dismiss at 3, Oct. 28, 2013, Docket
No. 87.)
In resolving Monsanto’s arguments based on Rule 10(b), the Court begins with the
Federal Rules’ pleading standards, which provide that a claim for relief need include only
“a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a). The purpose of the pleading requirements is simply to “give the
[counterclaim] defendant fair notice of what the [counterclaim] plaintiff’s claim is and
the grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)
(internal quotation marks omitted). “No technical form” is required for pleadings, and
the Court construes pleadings “so as to do justice.” Fed. R. Civ. P. 8(d)(1), (e). The
Federal Rules also explicitly allow a party to incorporate earlier allegations in a pleading
by reference. See Fed. R. Civ. P. 10(c) (“A statement in a pleading may be adopted by
reference elsewhere in the same pleading or in any other pleading or motion.”). Rule
10(c) “was adopted to encourage pleadings that are short and free of unneeded
repetition,” Kramer & Frank, P.C. v. Wibbenmeyer, Civ. No. 05-2395, 2006 WL
3079097, at *2 (E.D. Mo. Oct. 27, 2006) (internal quotation marks omitted); see also
Wright & Miller, 5A Federal Practice & Procedure § 1326 (3d ed.), and courts
frequently allow parties to satisfy pleading requirements “by incorporating by reference
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other paragraphs within the same complaint or counterclaim” Empire Today, LLC v. Nat’l
Floors Direct, Inc., 788 F. Supp. 2d 7, 22 (D. Mass. 2011). The ultimate question
regarding the sufficiency of pleadings under Rules 8 and 10 is “whether the theory and
basis of the various counts are easily distinguishable.” Iowa Health Sys. v. Trinity Health
Corp., 177 F. Supp. 2d 897, 906 (N.D. Iowa 2001) (internal quotation marks omitted).
Some courts have found violations of Rule 10(b), and required repleading of
claims,4 where “[e]xcessive incorporation by reference from one count to another” exists
to such an extent that the other party “cannot reasonably be expected to respond” or
where such incorporation “lead[s] to the introduction into the pleadings of considerable
unnecessary matter.” Iowa Health Sys., 177 F. Supp. 2d at 906 (internal quotation marks
omitted) (requiring repleading where counterclaims incorporated by reference all

4

The Court notes that even where courts have concluded that excessive incorporation by
reference exists, they have not found such incorporation to be a basis for dismissal, and have
instead merely ordered that the offending party replead its claims, omitting the excessive
incorporations by reference. See, e.g., Ledford v. Peeples, 657 F.3d 1222, 1239 (11th Cir. 2011)
(noting that dismissal is not the remedy for excessive incorporation by reference, explaining
“[w]hen faced with a complaint like the one here, in which the counts incorporate by reference
all previous allegations and counts, the district court must cull through the allegations, identify
the claims, and, as to each claim identified, select the allegations that appear to be germane to the
claim. This task can be avoided if the defendant moves the court for a more definite statement or
if the court, acting on its own initiative, orders a repleader.”); Martin v. Gorajec, Civ. No. 12460, 2013 WL 319783, at *12 (S.D. Ind. Jan. 28, 2013) (“The term ‘shotgun pleading’ is used to
describe complaints that utilize excessive incorporation, thereby taking advantage of Rule 10(b).
. . . When faced with a shotgun pleading, an appropriate solution is to order a plaintiff to replead
and state his claims more clearly.”); Iowa Health Sys., 177 F. Supp. 2d at 908 (“The remedy for
excessive incorporation by reference, however . . . is not the dismissal of their Counterclaims in
their entirety. Rather, they should serve an amended reply and counterclaims separately stating
and numbering their defenses and leaving out of their individual counterclaims incorporations by
reference that are not simply incorporations by reference of factual allegations that lend further
support to the individual counterclaims at issue.” (emphasis, alterations, citation, and internal
quotation marks omitted)).

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previous paragraphs including affirmative defenses); see also Destfino v. Kennedy, Civ.
No. 08-1269, 2009 WL 63566, *4, *7 (E.D. Cal. Jan. 8, 2009) (dismissing a complaint
based on excessive incorporation by reference where the incorporation had the effect of
causing the pleadings to “not specifically identify which defendant engaged in what in
the fraudulent schemes” where the case involved “different representations . . . made by
different persons to different people at different times” and “[y]et, the fraud allegations
group all of the defendants together without specifying which defendants engaged in
which conduct”).
The remedy of repleader based on violation of Rules 8 and 10 has generally been
reserved for egregious cases where “a defendant does not know the basic facts that
constitute the claim for relief against it.” Terrell v. DIRECTV, LLC, Civ. No. 12-81244,
2013 WL 451914, at *2 (S.D. Fla. Feb. 6, 2013) (requiring amendment of a complaint
where, among other deficiencies, the paragraphs were not numbered consecutively,
several complaints had been merged into one, the complaint was repetitive and rambling,
“[s]everal counts appear[ed] to be cut-off mid-count,” and unnecessary statutes and
regulations were attached as exhibits); Allen v. Cypress Village, Ltd., Civ. No. 10-994,
2011 WL 1667055, at *2 (M.D. Ala. May 3, 2011) (finding a complaint violated
Rule 10(b) by incorporating every antecedent allegation by reference into each
subsequent claim for relief where “[t]here are no counts, only a ‘Prayer for Relief.’ In
that Prayer for Relief, Plaintiff’s claims are crammed into a 300-word single sentence,
connected by a plethora of commas. Reading between the commas, there appear to be no
less than twenty-four claims. But deciphering what all of those claims are, which facts
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are meant to support which claim, and how each Defendant is liable is an insurmountable
task . . . .”); In re Banks, Bankr. No. 04-38360, 2008 WL 3979288, at *5 (Bankr. E.D.
Va. Aug. 22, 2008) (dismissing with leave to amend for failure to comply with Rules 8(a)
and 10(b) where “[p]aragraph 88 asserts causes of action under multiple code sections
requesting judgment against ‘appropriate defendants . . . under any theory of recovery
. . . .’” because the pleading created confusion among multiple defendants by not
specifying “which defendants are to be held liable for which code sections”).
Here, the Court concludes that Monsanto’s counterclaims meet the standards of
Rules 8 and 10. The counterclaims contain 105 clearly numbered paragraphs of factual
allegations. These allegations are followed by seven separate counts that, although they
incorporate by reference the prior paragraphs in the counterclaims, explicitly state the
basis for relief under each legal theory. These allegations are more than sufficient to put
SEI on notice of the conduct for which Monsanto seeks to hold it liable, and therefore is
not the type of pleading that violates Rules 8 and 10. See Matheson Tri-Gas, Inc. v.
Sheehan, Civ. No. 11-401, 2011 WL 1832708, at *2 (M.D. Fla. May 13, 2011) (finding
that “although each count incorporates by reference each factual allegation and each
allegation of every preceding count, the complaint falls exceedingly short of a ‘shotgun’
pleading” because it “alleges discrete claims in separate counts and distinguishes among
the three defendants” (internal quotation marks omitted)); Chin v. DaimlerChrysler
Corp., Civ. No. 95-5569, 2005 WL 5121812, at *2 (D.N.J. Dec. 5, 2005) (explaining that
“broad incorporation by reference” of all prior allegations did not result in “neutralization
of a clear and specific characterization of the action” and that “[i]ncorporation by
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reference of all preceding allegations is such a common pleading technique that the Court
does not feel comfortable in affording it the substantive significance that defendants
seek”).

To require Monsanto to replead its counterclaims would elevate form over

substance in violation of Rule 8’s liberal notice pleading requirements.

That SEI

understands the legal nature of Monsanto’s individual counterclaims and the factual
allegations that support them is perhaps best illustrated by SEI’s coherent motion to
dismiss which raises specific arguments against each of Monsanto’s counterclaims.
SEI’s motion to dismiss indicates that “[t]he allegations are not so vague or ambiguous
that a responsive pleading could not possibly be framed,” Streeter v. City of Pensacola,
Civ. No. 05-286, 2007 WL 4468705, at *2 (N.D. Fla. Dec. 18, 2007), and the Court will
therefore deny SEI’s motion to dismiss to the extent it seeks dismissal on the basis of
over incorporation.

III.

MONEY HAD AND RECEIVED5
In Count III, Monsanto brings a claim for money had and received alleging that

“[t]hroughout the course of the parties’ relationship, Monsanto paid to SEI approximately
$6.7 million relating to the software development work that SEI was allegedly
performing” and that “SEI’s acceptance and retention of the $6.7 million was unjust as
5

As an initial matter, the Court notes that it previously found that SEI’s claims for breach
of the Agreement and most of the related torts it alleges are governed by Missouri law pursuant
to a choice of law clause in the Agreement. Superior Edge, Inc. v. Monsanto Co.,
964 F. Supp. 2d 1017, 1031-32 (D. Minn. 2013). With respect to the present motion, the parties
agree that Missouri law applies to most of Monsanto’s counterclaims and have relied almost
exclusively on Missouri law in their briefs. Accordingly, the Court will apply Missouri law to
evaluate the substance of Monsanto’s counterclaims unless otherwise noted.

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SEI never provided to Monsanto a fully functional and scalable software product.”
(Countercls. ¶¶ 119, 121.) SEI moves to dismiss this claim on the basis that money had
and received is an equitable quasi-contract claim and provides relief only where no
express contract governs the relationship of the parties. SEI argues that because the
“claim is based on nothing more than the existence of the written contract between the
parties, the obligation to perform under the contract, and monies paid pursuant to the
contract” it does not adequately plead alternative relief to Monsanto’s breach of contract
claims, and must therefore be dismissed. (Reply at 4, Dec. 19, 2013, Docket No. 103.)
To state a claim for money had and received, a plaintiff must allege that “(1) the
defendant received or obtained possession of the plaintiff’s money; (2) the defendant
thereby appreciated a benefit; and (3) the defendant’s acceptance and retention of the
money was unjust.” Pitman v. City of Columbia, 309 S.W.3d 395, 402 (Mo. Ct. App.
2010).

Claims for money had and received are founded upon equitable principles

whereby the law implies a contract to prevent unjust enrichment. Karpierz v. Easley, 68
S.W.3d 565, 570 (Mo. Ct. App. 2002). Under Missouri law, a party may not recover on
such an implied, or quasi-contract theory when a valid, express contract governs the
subject matter of the parties’ dispute. See Al-Khaldiya Elecs. & Elec. Equip. Co. v.
Boeing Co., 571 F.3d 754, 759 (8th Cir. 2009); Howard v. Turnbull, 316 S.W.3d 431, 436
(Mo. Ct. App. 2010).
Although Missouri law prevents simultaneous recovery under both express
contract and quasi-contract claims, it “does not preclude that plaintiff from pleading both
theories in her complaint.” Owen v. Gen. Motors Corp., Civ. No. 06-4067, 2006 WL
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2808632, at *2 (W.D. Mo. Sept. 28, 2006). Indeed, the Federal Rules of Civil Procedure
explicitly allow parties to include in their pleadings demands for alternative relief, “set
out 2 or more statements of a claim or defense alternatively or hypothetically,” and “state
as many separate claims or defenses as it has, regardless of consistency.” Fed. R. Civ. P.
8(a)(3); id. 8(d)(2), (3). In reliance upon the Rule 8, federal courts in Missouri have
consistently denied motions to dismiss quasi-contract claims even where the pleading
also alleges the existence of an express contract. See, e.g., Level 3 Comm’cns, LLC v. Ill.
Bell Tel. Co., Civ. No. 13-1080, 2014 WL 414908, at *6 (E.D. Mo. Feb. 4, 2014)
(allowing claims for unjust enrichment and breach of contract to go forward at motion to
dismiss stage); Pollard v. Remington Arms Co., Civ. No. 13-0086, 2013 WL 3039797, at
*7 (W.D. Mo. June 17, 2013) (denying defendant’s motion to dismiss an unjust
enrichment claim based on the existence of a contract “because the Federal Rules of Civil
Procedure permit pleading in the alternative”); Ozark Purchasing LLC v. Falcon Steering
Sys., Inc., Civ. No. 12-3415, 2013 WL 708950, at *5 (W.D. Mo. Feb. 26, 2013) (same);
Franke v. Greene, Civ. No. 11-1860, 2012 WL 3156577, at *5 (E.D. Mo. Aug. 2, 2012)
(same).
SEI has cited no authority to the contrary. SEI relies upon a number of cases for
the proposition that breach of contract and quasi-contract claims cannot coexist, but these
cases do not deal with alternative claims presented at the motion to dismiss stage, but
rather deal with situations where a party obtained double recovery under these alternative
theories. See A&L Underground, Inc. v. Leigh Constr., Inc., 162 S.W.3d 509, 510-11
(Mo. Ct. App. 2005) (reversing judgment on money had and received claim after a bench
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trial because the parties “had an express contract”); KC Excavating & Grading, Inc. v.
Crane Constr. Co., 141 S.W.3d 401, 408 (Mo. Ct. App. 2004) (reversing judgment on
quantum meruit claim entered after a bench trial because the trial court had also “found
for KC Excavating on its breach of contract claim”).6 Although SEI is correct that
Monsanto will be “required to plead and prove damages outside the scope of the
contract” to recover on its money had and received theory (Reply at 4), it is not required
to do so at this motion to dismiss stage. Accordingly, because Monsanto is allowed to
plead in the alternative, the Court will deny SEI’s motion to dismiss the money had and
received counterclaim.
6

SEI also argues that, although pleading in the alternative is generally allowed, where, as
here, the existence of a contract is undisputed, then quasi-contract claims may not be pled in the
alternative. Specifically, SEI argues that Monsanto’s counterclaim for money had and received
must be dismissed because “[b]oth parties agree there is a valid enforceable contract and this
Court has based its prior rulings on this point and it is appropriate to do so now.” (Reply at 4.)
But SEI’s argument misses the mark. First, the Court has not based its prior rulings on the
existence of a valid enforceable contract. With the exception of the enforceability of the choice
of law clause, the Court has made no determinations or reached any conclusions about the
existence, validity, or scope of the Agreement but rather has assumed, for purposes of the
motions to dismiss with which it has been confronted, the truth of the parties’ allegations
regarding the Agreement. Second, SEI cites no authority, and the Court has found none, for the
proposition that where the parties do not appear to dispute the existence of a valid contract, the
parties to that lawsuit lose the ability to plead in the alternative. SEI does cite National Benefit
Programs, Inc. v. Express Scripts, Inc., Civ. No. 10-907, 2011 WL 6945167 (E.D. Mo. Dec. 30,
2011), but that case was at the summary judgment stage where the court determined based on the
record evidence that an express contract was applicable to plaintiff’s claims for commissions and
plaintiff then conceded that “its claims of unjust enrichment and promissory estoppel are
precluded.” Id. at *5. Finally, SEI’s interpretation of the pleading requirements here based on
its position that the existence of the Agreement is “undisputed” would undermine the purposes of
pleading in the alternative. In particular, although Monsanto has pleaded counterclaims based on
the existence of the Agreement “the Court must also assume for the purposes of a motion to
dismiss that the allegations necessary to the [quasi-contract] count are also true, namely that
there was no valid contract. A rule allowing for alternative pleading would be meaningless if the
assumption of facts in favor of the plaintiff at the motion to dismiss stage of a lawsuit could
foreclose mutually exclusive theories.” Owen, 2006 WL 2808632 at *2.

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IV.

FRAUDULENT INDUCEMENT AND NEGLIGENT INDUCEMENT
Monsanto brings separate counterclaims for fraudulent and negligent inducement.7

The heart of both claims is Monsanto’s allegation that:
Based on its business relationship with Monsanto, SEI had a duty to convey
accurate and truthful information relating to its then-existing software
product and its software development capabilities. SEI further had a duty
to disclose to Monsanto any pertinent limitations or issues it had in this
regard. Monsanto reasonably relied on SEI to provide truthful information
relating to its existing software product and its development capabilities as
SEI had superior knowledge relating to that information and the
information could not have been discovered by Monsanto through the
exercise of ordinary diligence.
(Countercls. ¶¶ 125, 140.) For example, Monsanto alleges that prior to entering into the
Agreement SEI misrepresented that it had “ample and capable software engineers and an
infrastructure that allowed SEI to create innovative and complex solutions,”
“considerable experience in the agricultural industry,” “the capability and necessary
7

As an initial matter, the Court notes that contractual choice of law provisions like the
one at issue here, which governs “any dispute arising from the performance or breach” of the
Agreement, see Superior Edge, Inc., 964 F. Supp. 2d at 1031, do not necessarily govern
inducement claims because such claims arise before the contract is formed, see Inacom Corp. v.
Sears, Roebuck & Co., 254 F.3d 683, 687-88 (8th Cir. 2001) (concluding that a choice of law
clause providing that the “agreement shall be governed by and construed in accordance with the
law of the State of Illinois” did not govern a claim for fraudulent concealment arising “out of the
circumstances surrounding the formation of the contract”); Smith v. Genetic Depot, Inc., Civ. No.
11-273, 2013 WL 627065, at *8-9 (D. Minn. Feb. 20, 2013) (finding that a contractual choice of
law provision providing that the contract could be governed by the laws of Manitoba did not
govern claims for negligent and fraudulent misrepresentation which related not “to the
performance of the Multiplication Agreement, but the circumstances of formation of that
Agreement” and instead applying forum law to analysis of those claims). Here, however, both
parties agree that Missouri law governs Monsanto’s claims. Because both parties have
acquiesced to the application of Missouri law, the Court declines to undertake a sua sponte
choice of law analysis, and will apply Missouri law. See Superior Edge, Inc., 964 F. Supp. 2d at
1034 (noting that “[w]hen parties acquiesce to the application of a particular state’s law, courts
need not address choice of law questions” (internal quotation marks omitted)).

- 17 -

infrastructure to develop software that would allow Monsanto sales representatives to
pitch Monsanto products to farmers ‘at their kitchen tables’ through the use of electronic
devices like iPads and laptops,” “an advanced method to uniquely identify growers,” and
a software product that “used a proven configuration engine that had over 25 years of
recommending, pricing and quoting extremely complex products.” (Id. ¶¶ 126, 128-29,
141, 143-44.) With respect to its fraudulent inducement claim, Monsanto claims that SEI
“knowingly” made a variety of “misleading representations about its existing software
and its software development capabilities in order to induce Monsanto to enter into the
Agreement.” (Id. ¶ 124.) With respect to its negligent inducement claim, Monsanto
argues with respect to those same misrepresentations that “SEI failed to exercise
reasonable care or competence when it made misrepresentations about its existing
software and its software development capabilities in order to induce Monsanto to enter
into the Agreement.” (Id. ¶ 139.)

A.

Duplicative Claims

SEI first argues that Missouri law does not treat claims for fraudulent and
negligent inducement differently, and therefore Monsanto’s claims “should be merged
into one count” which “warrants dismissal” of the claims without prejudice. (Pl.’s Mem.
in Supp. of Mot. to Dismiss at 7.) Specifically, SEI argues that the claims are duplicative
because they both rely on the same universe of allegedly misrepresentative statements
and omissions. (Reply at 5-6 (comparing Countcls. ¶¶ 126-131 with ¶¶ 141-146).)

- 18 -

Inducement claims are a subset of misrepresentation claims. See Docmagic, Inc.
v. Mortg. P’ship of Am., LLC, Civ. No. 09-1779, 2010 WL 2326047, at *3 (E.D. Mo.
June 8, 2010) (citing Bracht v. Grushewsky, 448 F. Supp. 2d 1103, 1110 (E.D. Mo.
2006); Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 763 (Mo. 2007)
(en banc)). Under Missouri law
[t]he elements of fraudulent misrepresentation are: 1) a false material
representation; 2) the speaker’s knowledge of the falsity of the
misrepresentation or ignorance of the truth; 3) the speaker’s intent that the
hearer act upon the misrepresentation in a manner reasonably contemplated;
4) the hearer’s ignorance of the falsity of the misrepresentation; 5) the
hearer’s reliance on its truth; 6) the hearer’s right to rely thereon; and 7) the
hearer’s consequent and proximately caused damages.
CADCO, Inc. v. Fleetwood Enters., Inc., 220 S.W.3d 426, 436 (Mo. Ct. App. 2007). The
elements of negligent misrepresentation are:
(1) speaker supplied information in the course of his business or because of
some other pecuniary interest; (2) due to speaker’s failure to exercise
reasonable care or competence in obtaining or communicating this
information, the information was false; (3) speaker intentionally provided
the information for the guidance of a limited group of persons in a
particular business transaction; (4) listener justifiably relied on the
information; and (5) that as a result of listener’s reliance on the statement,
he/she suffered a pecuniary loss.
Harris v. Smith, 250 S.W.3d 804, 808 (Mo. Ct. App. 2008) (internal quotation marks
omitted). Although these two claims are similar, Missouri courts have noted that there
are two primary “differences between a cause of action for fraud and negligent
misrepresentation; namely fraud ‘requires that the person knowingly or recklessly supply
false information and negligent misrepresentation requires that the information be
supplied in the course of the defendant’s business.’” Leonard v. BASF Corp., Civ.

- 19 -

No. 06-33, 2006 WL 3702700, at *6 (E.D. Mo. Dec. 13, 2006) (alterations omitted)
(quoting Kesselring v. St. Louis Grp., Inc., 74 S.W.3d 809, 813 (Mo. Ct. App. 2002)).
In light of the authority from Missouri courts, it is clear that Missouri recognizes
distinct causes of action for fraudulent and negligent misrepresentations and Monsanto is
therefore permitted to allege both claims. Additionally, as explained above, the Federal
Rules allow Monsanto to plead in the alternative, and therefore dismissal is not warranted
even though Monsanto’s claims for fraudulent and negligent inducement are based on the
same universe of statements and omissions. See Williams v. Fin. Plaza, Inc., 78 S.W.3d
175, 186 (Mo. Ct. App. 2002) (noting that negligent misrepresentation can be pled as an
“alternative theory” to a fraudulent misrepresentation claim). Here, it is possible that
discovery will reveal that SEI knowingly supplied false information and Monsanto will
prevail on its fraudulent inducement theory. It is alternatively possible that discovery
will show that SEI did not knowingly supply false information, but instead supplied
information without exercising reasonable care with respect to the information’s falsity
and therefore may be liable for negligent inducement. At this motion to dismiss stage,
the Court must accept the facts in Monsanto’s alternative claims as true, and will deny
SEI’s motion to dismiss to the extent it contends that dismissal is warranted because
Monsanto’s fraudulent and negligent inducement claims must be merged.

B.

Economic Loss Rule

SEI next argues that Monsanto’s claims for fraudulent and negligent inducement
are barred by the economic loss rule because the claims are identical to Monsanto’s

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claims based on breach of the Agreement. “The economic loss doctrine prohibits a party
‘from seeking to recover in tort for economic losses that are contractual in nature.’”
Graham Constr. Servs., Inc. v. Hammer & Steel Inc., --- F.3d ---, Nos. 13-1843, 13-1906,
2014 WL 2619717, at *3 (8th Cir. June 13, 2014) (quoting Autry Morian Chevrolet
Cadillac, Inc. v. RJF Agencies, Inc., 332 S.W.3d 184, 192 (Mo. Ct. App. 2010)). The
economic loss doctrine seeks to preserve a distinction between contract law and tort law
and recognizes that contract law “is better suited for dealing with purely economic loss in
the commercial arena than tort law, because it permits the parties to specify the terms of
their bargain and to thereby protect themselves from commercial risk.” Dannix Painting,
LLC v. Sherwin-Williams Co., 732 F.3d 902, 906 (8th Cir. 2013) (internal quotation marks
omitted).
But the economic loss doctrine does not “categorically” bar fraud and
misrepresentation claims that arise in cases involving contractual relationships. AKA
Distrib. Co. v. Whirlpool Corp., 137 F.3d 1083, 1086 (8th Cir. 1998) cited with approval
in Compass Bank v. Eager Rd. Assocs., LLC, 922 F. Supp. 2d 818, 827 (E.D. Mo. 2013);
Self v. Equilon Enters., LLC, Civ. No. 00-1903, 2005 WL 3763533, at *11 (E.D. Mo.
Mar. 30, 2005). Instead, most courts have allowed tort claims to go forward where they
are “based upon a misrepresentation that was outside of or collateral to the contract, such
as many claims of fraudulent inducement.” Id.; see also Bridgestone/Firestone, Inc. v.
Recovery Credit Servs., Inc., 98 F.3d 13, 20 (2d Cir. 1996) (explaining that a plaintiff
may maintain a claim of fraud by “demonstrat[ing] a fraudulent misrepresentation
collateral or extraneous to the contract”). Although the Missouri Supreme Court has not
- 21 -

addressed the operation of the economic loss doctrine in the context of a claim for
fraudulent or negligent inducement,8 federal courts have predicted that in ascertaining
whether such claims are independent of the contract for purposes of the economic loss
doctrine, Missouri courts would be guided by “[t]wo critical factors . . . (1) whether the
subject matter of the alleged misrepresentations was incorporated into the parties’
contract” and “(2) whether the plaintiff suffered additional damages outside the contract
as a result of the alleged fraud.” Compass Bank, 922 F. Supp. 2d at 827 (citing AKA
Distrib., 137 F.3d at 1087; Bridgestone/Firestone, 98 F.3d at 20).
Relying on Compass Bank, SEI argues that because the alleged misrepresentations
that form the basis of Monsanto’s inducement claims relate to the subject matter of the
Agreement – in that they both largely pertain to the nature of software that SEI agreed to
develop for Monsanto – the inducement claims are barred by the economic loss doctrine.
But it is not enough to warrant dismissal on the basis of the economic loss doctrine for
the subject matter of the misrepresentation to merely be referenced in the parties’
contract. To the extent Compass Bank can be interpreted as holding that, it reflects an
overly narrow view of misrepresentations that are outside of or collateral to a contract.
Indeed, such an interpretation would unduly restrict the types of fraudulent inducement
8

The Court notes that Missouri law regarding the economic loss doctrine is somewhat
unclear, and courts have therefore looked broadly to other jurisdictions to anticipate the scope
and substance of Missouri’s economic loss doctrine jurisprudence. See Dannix Painting, LLC,
732 F.3d at 905-06 (anticipating “how the Missouri Supreme Court would rule” on an issue
involving the economic loss doctrine and citing Illinois, Minnesota, and North Dakota law);
Bruce Martin Constr., Inc. v. CTB, Inc., Civ. No. 10-205, 2012 WL 718624, at *3 (E.D. Mo.
Mar. 6 2012) (“State and federal case law relating to the economic loss doctrine in Missouri is
fairly complex and somewhat contradictory.”).

- 22 -

claims that could be brought, as many fraudulent inducement claims will be based upon
misrepresentations that are in some way referenced in the subject matter of the contract,
as, in order to present a fraudulent inducement claim at all, the misrepresentations must
be material to the contract. See Scott Salvage Yard, LLC v. Gifford, 382 S.W.3d 134, 138
(Mo. Ct. App. 2012) (noting that plaintiff stated a claim for fraudulent inducement to
enter a contract regarding payment for crushing of cars where he alleged that defendant
“intentionally misrepresented the number of cars he had available for crushing and that
such fact was material to the contract”); Evergreen Nat’l Corp. v. Carr, 129 S.W.3d 492,
496 (Mo. Ct. App. 2004) (noting that an essential element of fraudulent inducement is the
“materiality” of the statement, and describing a claim or fraudulent inducement where
plaintiff alleged he was induced to buy certain lots “because of fraudulent
misrepresentations regarding the lots”).
Rather than looking generally to whether the subject matter of the alleged
misrepresentations and the at-issue contract are the same, most courts have focused more
precisely on whether a contract term conflicts with or contains the alleged
misrepresentation, in which case the inducement claim is barred. Where a contract term
contains or conflicts with an alleged misrepresentation, the contract term controls, and
there is no fraudulent misrepresentation claim. See AKA Distrib. Co., 137 F.3d at 1087
(finding that a fraud claim could not be based on defendant’s representation that plaintiff
would be its distributor “for a long time” when “duration was a term of the contract”).
Similarly, courts have found that misrepresentations as to a party’s intention to perform
its obligations under a contract are not actionable under an inducement theory, as the
- 23 -

terms of a party’s performance are contained in the contract and misrepresentations about
an intent to perform that manifest in a failure to perform can be remedied through a
breach of contract action. See Bridgestone/Firestone, Inc., 98 F.3d at 19-20 (finding
representations that the party intended to remit all sums due and owing to plaintiff under
a contract “amount to little more than intentionally-false statements” by the party
“indicating his intent to perform under the contract” which were insufficient to support a
claim for fraud).
Although courts have almost uniformly found claims based on misrepresentations
about a party’s intent to perform to be barred by the economic loss doctrine, many have
carefully distinguished between those claims – which are barred – and claims that are
based upon misrepresentations of existing facts prior to contracting that induce the
opposing party to enter into the contract – which are not always barred. See Scott
Salvage Yard, LLC, 382 S.W.3d at 136, 138 (explaining that although “non-performance
of a contractual promise during the pendency of a contract does not constitute fraud”
plaintiff stated a claim for fraudulent inducement where prior to entering into a contract
regarding payment for crushed cars, the defendant misrepresented the number of cars he
had available for crushing); Quanzhou Joerga Fashion Co. v. Brooks Fitch Apparel Grp.,
LLC, Civ. No. 10-9078, 2011 WL 4063344, at *7 (S.D.N.Y. Aug. 11, 2011) (“[I]n
practice the courts have held with consistency that representations that the party will
comply with the terms of a contract are referable to the contract and hence neither
collateral nor extraneous to that contract. In contrast, if the representation concerns
present facts (that is, other than the party’s present intention to comply with the contract
- 24 -

in the future), the representation may trigger tort liability if the other criteria for such
liability are satisfied.” (citations omitted)).
With respect to the types of misrepresentations alleged here – about SEI’s
capabilities, personnel, infrastructure, and experience in the field – which go to a party’s
ability to perform the contract, some courts have allowed such claims to go forward on
the basis that they allege misrepresentations related to the inducement of the contract not
the performance of its terms. See United States v. 1,577.28 Acres of Land in Osage
Cnty., Kan., 486 F.2d 445, 448 (10th Cir. 1973) (“[W]here, as here, an unconditional
promise is made as an inducement to enter a contract, and the promisor is without
knowledge as to his ability to perform, or knows or should know of his prospective
inability to perform, such a promise constitutes an actionable misrepresentation.”); PPG
Indus., Inc. v. Generon IGS, Inc., 760 F. Supp. 2d 520, 527-28 (W.D. Pa. 2011) (denying
a motion to dismiss a counterclaim for fraudulent inducement based on allegations that
defendant “was fraudulently induced into entering the supply agreement through
Plaintiff’s misrepresentations of its own capabilities to perform under the contract”
because to the extent those allegations related to inducement rather than performance
they stated a claim).9 In MeterLogic, Inc. v. Copier Solutions, Inc., 126 F. Supp. 2d 1346

9

But see Compass Bank, 922 F. Supp. 2d at 827 (“Plaintiffs allege that Defendants made
pre-contract misrepresentations with respect to their ability to perform obligations that became
part of the parties’ contract. These asserted misrepresentations – concerning subject matter
incorporated within the four corners of the contract – are insufficient to state a claim for fraud.”);
Tier1 Innovation, LLC v. Expert Tech. Grp., LP, Civ. No. 06-4622, 2007 WL 1377664, at *4
(E.D. Pa. May 8, 2007) (dismissing claims for fraudulent and negligent misrepresentation as
“inextricably intertwined” with the party’s “alleged failure to perform under the contract, as the
(Footnote continued on next page.)

- 25 -

(S.D. Fla. 2000), for example, the court found that plaintiff had stated a claim for
fraudulent inducement independent of a contract where prior to contracting defendants
had represented that their corporate parents “were firmly behind their proposed business
arrangements, had funded the development of the technology, and owned the
technology.” Id. at 1362 (alterations and internal quotation marks omitted). The court
distinguished these allegations from the non-actionable allegations that defendants
promised “to develop, manufacture, provide, and service certain technology” because
these promises were nothing more than the performance required of defendants under the
contract. Id. The court found that the allegations regarding the involvement of the
corporate parents were the type that required an exception to the economic loss rule,
explaining:
The ability of MeterLogic to negotiate fair terms and make a truly informed
decision has been undermined by these misrepresentations. For example,
had MeterLogic known that [the corporate parents] were not really behind
the contracts, MeterLogic could have protected itself by agreeing to
different terms or refusing to enter into the agreements altogether.
Id.
With these principles in mind, the Court concludes that a Missouri court would
allow Monsanto’s fraudulent and negligent inducement claims to go forward based on at
least some of the misrepresentations alleged in Monsanto’s counterclaims, and will
therefore deny SEI’s motion to dismiss. Certainly some of the misrepresentations alleged
____________________________________
(Footnote continued.)

claims pertain to [the party]’s representations regarding its expertise and ability to perform its
duties under the agreement between the parties”).

- 26 -

by Monsanto were incorporated in the Agreement, and therefore cannot form the basis of
a fraudulent inducement claim. For example, Monsanto alleges that SEI represented that
it had a Sales Edge product which “included software, date and Intellectual Property that
was delivered over the internet.” (Countcls. ¶¶ 128, 143.) But the Agreement explicitly
incorporates this alleged misrepresentation, stating “SEI has an existing sales
enhancement product, SalesEdge Accelerator comprised of software, data and Intellectual
property which is delivered over the internet.” (Compl., Ex. B at 11.) To the extent that
SEI did not have such a product or it was not comprised of those elements, Monsanto has
a breach of contract, not a fraud claim.10 Other alleged misrepresentations about SEI’s
ability to perform, however, are not memorialized in the Agreement, and allege more
than simply a misrepresentation as to SEI’s intent to perform. For example, Monsanto
alleges that SEI represented that it “had considerable experience in the agricultural
industry,” had “an infrastructure that allowed SEI to create innovative and complex
solutions,” “could provide grower data,” “had experience using the ‘Agile Methodology’
and ‘Agile Process,’” and that SalesEdge “permitted users to create personalized sales
10

SEI also argues that Monsanto’s counterclaims for inducement are barred by the
merger clause in the Agreement which provides that “this Agreement, together with the Exhibits
and attachments hereto, constitute the entire agreement, both written or oral, with respect to the
subject matter hereof, and supersedes all prior or contemporaneous understandings or
agreements, whether written or oral, between Monsanto and SEI with respect to such subject
matter.” (Compl., Ex. B at 40.) But “the rule that all prior and contemporaneous oral
agreements and representations are merged in the written contract entered into by the parties
does not apply to fraudulent representations made for the purpose of inducing a party to enter
into such contract.” Riley v. Lucas Lofts Investors, LLC, 412 S.W.3d 285, 293 (Mo. Ct. App.
2013) (alteration and internal quotation marks omitted). Therefore, the merger clause does not
require dismissal of Monsanto’s inducement claims.

- 27 -

proposals – sometimes printed in binder or booklet form – using data from a wide range
of sources with the data being tailored to the specific industry, seller and purchaser.”
(Countercls. ¶¶ 126, 128, 131, 141, 143, 146.)11

These allegations are not simply

allegations that SEI promised it would perform its duties under the contract, and then
failed to perform. Instead, the allegations relate to misrepresentations that SEI made
about its abilities, skills, and experience prior to entering into the Agreement with
Monsanto. These misrepresentations, Monsanto alleges, induced Monsanto to enter into
the Agreement with SEI. If Monsanto had known the truth about SEI’s capabilities it
may have chosen to add, subtract, or change terms in the Agreement, or decline to enter
into the Agreement altogether. Although somewhat nuanced, the difference is significant
here. If SEI had merely promised to perform and failed to do so, remedies available
under a breach of contract theory would make Monsanto whole. Additionally, in such a
situation, Monsanto would have been able to specify the terms of the bargain and protect
itself from risk by including certain terms of performance in the contract. But if SEI
11

It is certainly possible that, depending on the context in which some of these
misrepresentations were made, that certain of them – such as claims that SEI was “on the cutting
edge of technology” and that its solution “leapfrogs current approaches” (Countercls. ¶¶ 126,
130, 141, 145) may ultimately not be actionable as “mere expressions of opinion or ‘puffing’”
such as representations “that compare the efficiency, economy or quality of one product to other
products.” Midwest Printing, Inc. v. AM Int’l Inc., 108 F.3d 168, 170-71 (8th Cir. 1997); see also
Trotter’s Corp. v. Ringleader Restaurants, Inc., 929 S.W.2d 935, 940 (Mo. Ct. App. 1996)
(“Mere statements of opinion, expectations, and predictions for the future are insufficient to
authorize a recovery for fraudulent misrepresentation.”). The Court declines to dismiss
Monsanto’s claims based on particular representations that may constitute opinions or puffing, as
SEI has not requested dismissal on this basis. Furthermore, as explained below, that certain of
Monsanto’s alleged misrepresentations may not ultimately establish an actionable fraud claim
does not warrant dismissal where, as here, many of the misrepresentations alleged do state a
claim, and whether the statements constitute actionable fraud depends on context and other facts
to be identified in discovery.

- 28 -

misrepresented its abilities, and thereby induced Monsanto to enter into the contract in
the first instance, the purposes of the economic loss rule are no longer implicated,
because in the absence of truthful information, Monsanto would not have been able to
specify certain terms in the Agreement to protect itself from commercial risk. See
MeterLogic, Inc., 126 F. Supp. 2d at 1362.

Because, accepting the facts in the

counterclaims as true and drawing all inferences in Monsanto’s favor, Monsanto has
stated a plausible claim for relief under theories of fraudulent and negligent inducement,
the Court will deny SEI’s motion to dismiss.12
12

In apparent reliance on Compass Bank, SEI argues that in addition to showing that the
misrepresentations relied upon as support for its inducement claims are independent of the
Agreement, Monsanto must also show special damages to avoid dismissal. 922 F. Supp. 2d at
827 (explaining the two critical factors examined by courts as “(1) whether the subject matter of
the alleged misrepresentations was incorporated into the parties’ contract and (2) whether the
plaintiff suffered additional damages outside the contract as a result of the alleged fraud”
(citation omitted) (emphasis added)). But Compass Bank did not hold that both elements were
required to state a claim for inducement, and instead specifically characterized the two inquiries
as “factors” to be examined by the Court. Id. Additionally, in setting out these factors Compass
Bank explicitly relied on AKA Distribution Co. and Bridgestone/Firestone, Inc., neither of which
required that the claimant demonstrate misrepresentations independent of the contract as well as
special damages in order to proceed on an inducement theory. See AKA Distrib. Co., 137 F.3d at
1087 (examining only whether the subject matter was independent of the contract in ascertaining
whether a fraud claim was barred by the economic loss doctrine); Bridgestone/Firestone, Inc., 98
F.3d at 20 (explaining that “[t]o maintain a claim of fraud in such a situation, a plaintiff must
either: (i) demonstrate a legal duty separate from the duty to perform under the contract; or
(ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or
(iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract
damages” (citations omitted) (emphasis added)). Therefore, the Court concludes that it is
sufficient at this stage that Monsanto allege a misrepresentation independent of the Agreement.
Although Monsanto will not be allowed double recovery of the same damages on two legal
theories, that is an issue for the election of remedies phase of this action, not a motion to dismiss.
Furthermore, Monsanto has alleged damages such as “investment of thousands of hours of time
and other resources in an effort to try and make the project with SEI succeed, mitigation
expenses and the resulting distractions” as well as “having to engage co-defendant SST to work
separately on a software application that would provide Monsanto with the same functionality
that SEI had committed to provide under the Agreement.” (Countercls. ¶¶ 136-37, 151-52.)
(Footnote continued on next page.)

- 29 -

As a final matter, for purposes of this motion, and in light of Monsanto’s lengthy,
detailed, and somewhat repetitive allegations, the Court notes that it need not parse each
of Monsanto’s allegations to determine precisely which alleged misrepresentations state a
claim and which do not. It is sufficient at this stage to determine, as the Court has, that
some aspects of Monsanto’s fraudulent and negligent inducement allegations state a
plausible claim for relief and therefore are sufficient to survive a motion to dismiss.
Because of the somewhat closely drawn distinctions between claims for fraud arising out
of inducement to contract versus performance of that contract, courts have been very
reluctant to dismiss when, based on the allegations, it would be possible for a claimant to
demonstrate that the misrepresentations related to the inducement. See U.S. Claims, Inc.
v. Saffren & Weinberg, LLP, Civ. No. 07-0543, 2007 WL 4225536, at *12 (E.D. Pa.
Nov. 29, 2007) (“[C]ourts have shown some reluctance to dismiss claims for fraud in the
inducement or negligent misrepresentation early in the litigation . . . . Absent further
discovery, this Court cannot accurately determine whether Plaintiff’s claims of fraudulent
inducement are collateral to or interwoven in the contract with Defendants. . . . It is
precisely that uncertainty, that makes it inappropriate to dismiss the fraud counts before
the parties have an opportunity to conduct discovery.”); Carlone v. The Lion & The Bull
Films, Inc., 861 F. Supp. 2d 312, 326 (S.D.N.Y. 2012) (finding that, even at the summary

____________________________________
(Footnote continued.)

Although these are the same damages claimed for breach of the Agreement (id. ¶¶ 104-05), to
the extent some or all of these damages are not recoverable under contract they could form the
basis for recovery under the inducement theories.

- 30 -

judgment stage, “it is not established by undisputed fact that Plaintiff’s fraudulent
inducement claim is sufficiently distinct from the breach of contract claim to warrant
separate relief”); cf. R.W. Murray Co. v. Shatterproof Glass Corp., 697 F.2d 818, 829
(8th Cir. 1983) (applying Missouri law to an inducement claim alleging that defendant
“misrepresented the quality of the glass panels it designed, manufactured and supplied for
appellants’ building,” and, although not directly addressing the economic loss doctrine,
explaining “we believe that appellants sufficiently alleged the required elements to state a
cause of action for fraud in the inducement to contract. Although we may have some
doubts that the appellants will be able to prove all of the facts necessary to establish these
elements, such doubts are not the proper basis for granting a Rule 12(b)(6) motion to
dismiss for failure to state a cause of action.”). Reducing Monsanto’s allegations to those
precise misrepresentations which are independent or collateral to the Agreement is a task
best undertaken after discovery has occurred – which may lead to the discovery of facts
that clarify, provide context for, and/or eliminate Monsanto’s claims based on particular
misrepresentations. Accordingly, the Court will allow Monsanto’s inducement claims to
proceed, but cautions that claims based on misrepresentations contained or contradicted
by the Agreement and those which merely allege misrepresentations of SEI’s intent to
perform will be subject to dismissal at a later stage.

V.

CONVERSION
Monsanto’s counterclaim for conversion arises out of its allegation that pursuant

to the Agreement “Monsanto is the owner of any Intellectual Property associated with the

- 31 -

Monsanto Premium Products that is developed under the Agreement, including but not
limited to, software source code.” (Countercls. ¶ 155.) Monsanto further alleges that
“SEI has possession of the Intellectual Property, including but not limited to, the software
source code, and has deprived Monsanto of its right to the Intellectual Property.” (Id.
¶ 156.) Finally, Monsanto alleges that it made “[a] demand for the Intellectual Property,
including but not limited to, the software source code . . . on a number of different
occasions throughout 2011, but SEI has refused to relinquish the Intellectual Property.”
(Id. ¶ 157.)
“Conversion is the unauthorized assumption of the right of ownership over the
personal property of another to the exclusion of the owner’s rights.” Emerick v. Mut.
Benefit Life Ins. Co., 756 S.W.2d 513, 523 (Mo. 1988). To state a claim for conversion, a
plaintiff must allege that “(1) plaintiff was the owner of the property or entitled to its
possession; (2) defendant took possession of the property with the intent to exercise some
control over it; and (3) defendant thereby deprived plaintiff of the right to possession.”
JEP Enters., Inc. v. Wehrenberg, Inc., 42 S.W.3d 773, 776 (Mo. Ct. App. 2001). Where
a party’s possession of property is initially lawful, wrongful refusal to return the property
to its owner can also be actionable under a theory of conversion. See Green Valley Seed,
Inc. v. Plenge, 72 S.W.3d 601, 603 (Mo. Ct. App. 2002); see also Emerick, 756 S.W.2d at
525. To succeed on a conversion claim based on wrongful refusal to return, the claimant
must allege as an element of the claim that a demand for return of the property was made.
Green Valley Seed, 72 S.W.3d at 603.

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SEI argues that Monsanto’s claim must be dismissed for two reasons. First, SEI
argues that Monsanto is not the owner of the intellectual property at issue because
“[t]here is no language within the body of the Agreement or any other agreement that
conveys such ownership,” and instead the Agreement only provides Monsanto with a
right to use and access the intellectual property. (Mem. in Supp. of Mot. to Dismiss at
10.) Second, SEI argues that Monsanto’s conversion claim fails because it fails to allege
the “loss of possession of physical, tangible property,” and instead alleges conversion of
“an idea.” (Id. at 12.)
With respect to SEI’s first argument, the Court concludes that there is sufficient
language in the Agreement to render Monsanto’s claim of ownership to the intellectual
property plausible at this motion to dismiss stage. Although SEI cites at length various
provisions of the Agreement governing licenses and user fees, the Agreement also
provides that:
Regardless of inventorship, any Intellectual Property associated with the
Monsanto Premium Products or any solution in the Monsanto Exclusive
Field that is developed under this Agreement will be assigned to Monsanto.
. . . SEI will be entitled to receive a limited, royalty-free license to use the
Intellectual Property associated with the Monsanto Premium Products
outside of the Monsanto Exclusive Field, and to grant appropriate
sublicense if required.
(Compl., Ex. B at 25.)

Disputes about the import of this provision, its potential

ambiguity, scope, and interaction with other provisions in the Agreement are not
questions to be resolved on a motion to dismiss.

Accepting Monsanto’s factual

allegations in its counterclaims as true, in conjunction with the provision of the
Agreement assigning to Monsanto ownership rights in all intellectual property developed
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under the Agreement, the Court concludes that Monsanto has adequately alleged an
ownership interest in the allegedly converted property.
SEI’s second argument also misses the mark.

SEI essentially contends that

Monsanto’s conversion claim must be dismissed because the Court previously dismissed
SEI’s conversion claim based on the theory that conversion of an idea is not actionable.
SEI brought a conversion claim against Monsanto based on, among others, the allegation
that Monsanto had unlawfully retained copies of SEI’s software. Superior Edge, Inc.,
964 F. Supp. 2d at 1038. The Court dismissed SEI’s claim to the extent it was based
upon “Monsanto’s retention of SEI’s intellectual property . . . because ‘conversion does
not lie for the appropriation of an idea.’” Id. at 1039 (quoting Schaefer v. Spence, 813
S.W.2d 92, 96 (Mo. Ct. App. 1991)).

The Court explained that “[c]onversion of

intangible property cannot occur where the plaintiff still has the information that the
defendant allegedly appropriated.” Id. (citing Monsanto Co. v. Hill, Civ. No. 03-181,
2004 WL 4996339, at *4-5 (E.D. Mo. May 21 2004)). Therefore, the Court concluded
that “[h]ere, SEI does not dispute that it retains the software it created during the course
of the Agreement. Monsanto’s retention of any intellectual property did not, therefore,
deprive SEI of possession and cannot be the basis of a conversion claim.” Id.
Monsanto’s conversion claim is essentially the opposite of SEI’s claim. Here,
unlike with SEI’s claim, Monsanto does not claim that it still has the information that SEI
allegedly appropriated. Also unlike SEI, Monsanto does not allege that it retains the
software that SEI created during the course of the Agreement. Instead, Monsanto’s claim
is based upon loss of possession of the intellectual property and source code to which the
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Agreement granted it an ownership interest; not loss of a copy or loss of exclusivity, but
loss of the actual software and source code itself. This is sufficient to state a claim for
conversion. See Mayo Clinic v. Elkin, Civ. No. 09-322, 2010 WL 760728, at *5 n.12
(D. Minn. Mar. 4, 2010) (explaining that a conversion claim survived summary judgment
based on a dispute over the ownership of software and source code); Abundance Partners
LP v. Quamtel, Inc., 840 F. Supp. 2d 758, 772 (S.D.N.Y. 2012) (denying a motion to
dismiss a conversion claim based on conversion of source code).13 Accordingly, the
Court will deny SEI’s motion to dismiss Monsanto’s counterclaim for conversion.

VI.

PROFESSIONAL NEGLIGENCE
In support of its counterclaim for professional negligence, Monsanto alleges that

“SEI is held to a standard of care as a member of a learned and skilled profession and had
a duty to exercise the ordinary and reasonable technical skill that is usually exercised by
those in the software development field.” (Countercls. ¶ 161.) Monsanto further alleges
that “[b]y failing to timely deliver a fully functional and scalable software product in a
timely manner, SEI deviated from the standard of care and that deviation was the
proximate cause of Monsanto’s damages.” (Id. ¶ 162.)

13

Relatedly, SEI argues that Monsanto “never had possession of the source code” and
therefore its conversion claim must fail. (Reply at 11.) But conversion requires only that the
plaintiff allege he was “entitled” to possession of property and that the defendant “deprived
plaintiff of the right to possession.” JEP Enters., Inc., 42 S.W.3d at 776 (emphasis added).
Therefore, SEI is not required to plead that it actually ever had possession of the intellectual
property and source code. See Emerick, 756 S.W.2d at 526 (“A plaintiff charging conversion
must show possession or the right to possession, or an ownership which carries with it the right
to immediate possession.”).

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As an initial matter, SEI argues that Minnesota rather than Missouri law should
govern the professional negligence counterclaim. Because the Court concludes that the
claim is subject to dismissal under either state’s law, it need not determine whether the
choice of law clause in the Agreement is broad enough to encompass claims for
professional negligence. “An action for professional negligence exists where, in the
context of the contractual relationship, the professional negligently discharges the duties
arising from that relationship.” Rosemann v. Sigillito, 956 F. Supp. 2d 1082, 1109 (E.D.
Mo. 2013). With respect to the duty of care in professional negligence claims “‘[o]ne
who undertakes to render professional services is under a duty . . . to exercise such care,
skill, and diligence as men in that profession ordinarily exercise under like
circumstances.’” Pond Hollow Homeowners Ass’n v. The Ryland Grp., Inc., 779 N.W.2d
920 (Minn. Ct. App. 2010) (alterations in original) (quoting City of Eveleth v. Ruble, 225
N.W.2d 521, 524 (Minn. 1974)); see also Murphy v. A.A. Mathews, a Div. of CRS Grp.
Eng’rs, Inc., 841 S.W.2d 671, 674 (Mo. 1992) (en banc).
Minnesota and Missouri courts have recognized claims for professional negligence
against professionals such as attorneys, architects, accountants, and engineers. See, e.g.,
Minn. Stat. § 544.42, subd. 1(1); Witzman v. Lehrman, Lehrman & Flom, 601 N.W.2d
179, 184 (Minn. 1999) (accountants); Pond Hollow Homeowners Ass’n, 779 N.W.2d at
923 (engineer); Children’s Wish Found. Int’l, Inc. v. Mayer Hoffman McCann, P.C., 331
S.W.3d 648, 649 (Mo. 2011) (accountants); Blackstock v. Kohn, 994 S.W.2d 947, 950
(Mo. 1999) (attorneys) Brennan v. St. Louis Zoological Park, 882 S.W.2d 271, 273 (Mo.
Ct. App. 1994) (architect).

Courts have occasionally suggested that the scope of
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professional negligence claims might include other similar professionals, such as roofing
companies, see Trident Grp., LLC v. Miss. Valley Roofing, Inc., 279 S.W.3d 192, 197
(Mo. Ct. App. 2009), or real estate appraisers, Dueker v. Gill, 175 S.W.3d 662, 669 & n.6
(Mo. Ct. App. 2005) (noting in the context of a negligent misrepresentation claim that
“there is some general authority that commercial real estate appraisers may be held liable
for negligent misrepresentation” (internal quotation marks omitted)).
Neither the Minnesota nor Missouri Supreme Court has ever recognized a cause of
action for professional negligence against providers of computer-related services or
products.

Of the courts to consider the question, the overwhelming majority have

determined that a malpractice or professional negligence claim does not lie against
computer consultants or programmers.

See Avazpour Networking Servs., Inc. v.

Falconstor Software, Inc., 937 F. Supp. 2d 355, 364 (E.D.N.Y. 2013) (“New York law is
clear in limiting imposition of a duty, the breach of which can support a claim in tort, to a
limited class of professionals and circumstances. Falconstor is a provider of computer
software, hardware and related installation services. While such goods and services
require specialized knowledge, New York state law does not recognize a cause of action
for professional malpractice by computer consultants.” (internal quotation marks
omitted)); Ferris & Salter, P.C. v. Thomson Reuters Corp., 889 F. Supp. 2d 1149, 1153
(D. Minn. 2012) (predicting that the Minnesota Supreme Court would not recognize a
cause of action for malpractice against computer consultants explaining that there is “no
indication that Minnesota has imposed upon computer consultants a heightened standard
of care” and does not require licensing or continuing education requirements for
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providers of computer-related services); Heidtman Steel Prods., Inc. v. Compuware
Corp., Civ. No. 07-7389, 2000 WL 621144, at *14 (N.D. Ohio Feb. 15, 2000)
(“Michigan courts have disallowed malpractice claims against nurses, morticians, and
newspaper publishers because these occupations, though involving great skill, are not
‘professions’ as the term is used doctrinally. . . . There is no precedent in Michigan to
recognizing computer consultants as professionals. Thus, computer consultants cannot be
held liable for malpractice.” (footnote omitted)); Rapidigm, Inc. v. ATM Mgmt. Servs.,
LLC, 63 Pa. D. & C.4th 234, 247-49 (Pa. Com. Pl. 2003); Racine Cnty. v. Oracular
Milwaukee, Inc., 767 N.W.2d 280, 286 (Wis. Ct. App. 2009).
In deciding that computer professionals are not subject to professional negligence
claims, courts to consider the question have often relied upon the reasoning of
Raymond T. Nimmer in his treatise The Law of Computer Technology, who explains:
Most practitioners in computer consulting, design, and programming do not
fit a model that creates malpractice liability. These businesses and
‘professional’ parties clearly engage in complex and technically
sophisticated activities.
Computer programmers commonly define
themselves as ‘professionals.’ Yet, despite the complexity of the work,
computer programming and consultation lack the indicia associated with
professional status for purposes of imposing higher standards of reasonable
care.
While programming requires significant skill and effective
consultation requires substantial business and technical knowledge, the
ability to practice either calling is not restricted or regulated at present by
state licensing laws. If anything, programming skills have proliferated
throughout the general public during the past decade and become less,
rather than more, the exclusive domain of a profession specially trained and
regulated to the task. Unlike traditional professions, while practitioner
associations exist, there is no substantial self-regulation or standardization
of training within the programming or consulting professions.

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Ferris & Salter, P.C., 889 F. Supp. 2d at 1152 (quoting Raymond T. Nimmer, The Law of
Computer Tech. § 9.30 (4th ed. 2012)). Additionally, courts have rejected the argument
that computer professionals should be subject to professional negligence claims on the
basis that they are not subject to licensing or regulation by states, explaining:
Professionals may be sued for malpractice because the higher standards of
care imposed on them by their profession and by state licensing
requirements engenders trust in them by clients that is not the norm of the
marketplace. When no such higher code of ethics binds a person, such trust
is unwarranted. Hence, no duties independent of those created by contract
or under ordinary tort principles are imposed on them.
Hosp. Computer Sys., Inc. v. Staten Island Hosp., 788 F. Supp. 1351, 1361 (D.N.J. 1992).
Here, Monsanto has provided no reason why the Missouri Supreme Court would
deviate from the reasoning of these cases. For example, Monsanto has not pointed to any
Missouri law which expansively defines a professional negligence action as including
any profession that involves complicated or skilled work. Additionally, Monsanto has
not identified any Missouri statute or regulation requiring computer professionals to
obtain licenses or complete continuing education, which might thereby suggest that
Missouri courts would treat computer professionals like attorneys, architects, or
accountants. Nor has Monsanto presented any argument that computer professionals are
subject to self-regulation in Missouri. Instead, Monsanto argues only that “[b]ased on the
facts presented in this case, Monsanto believes that the Missouri Supreme Court would
permit a claim for professional negligence against SEI.” (Monsanto’s Mem. in Opp’n to

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Mot. to Dismiss at 17 n.5, Nov. 25, 2013, Docket No. 96.)14 As support Monsanto cites
Diversified Graphics, Ltd. v. Groves, 868 F.2d 293 (8th Cir. 1989), but that case was a
professional negligence action against an accounting firm that acted as a consultant for
the client’s purchase and implementation of an in-house computerized data processing
system.

Id. at 296-97.

The availability of professional negligence actions against

accountants is already well-established under Missouri law, and Diversified says nothing
about whether a professional negligence action against a computer professional – not
acting in a role as an accountant – is appropriate.

Monsanto also relies on Data

Processing Services, Inc. v. L.H. Smith Oil Corp., 492 N.E.2d 314 (Ind. Ct. App. 1986),
overruled on other grounds by Insul-Mark Midwest v. Modern Materials, 612 N.E.2d 550
(Ind. 1993), which held that under the UCC a computer programmer could be held liable
for breach of an implied promise of having the reasonable skill and ability to do the job
for which it contracted. Id. at 319-20. But the Court finds that based on Missouri’s
existing law – which generally limits professional negligence actions to those fields in
which participants are regulated by state licensing requirements – the Missouri Supreme
14

Monsanto makes a bare attempt to distinguish the cases finding no professional
negligence claims against computer consultants because the work SEI was retained to perform
was “highly technical” and therefore more complex than “managing an Internet website or
providing software, hardware and related installation services.” (Monsanto’s Mem. in Opp’n to
Mot. to Dismiss at 18-19.) But the Court concludes that Missouri courts would not find this
distinction compelling because none of the courts to reject professional negligence claims in the
context of computer professionals did so on the basis that computer work was not complex or
highly technical. Instead, courts rejected the claims on the basis that computer professionals are
not subject to the same kinds of licensing requirements and regulations as other professionals.
Whether SEI’s work was more or less complex than the designing and maintaining websites or
installing new computer systems that was at issue in some of the cases rejecting professional
negligence claims is therefore irrelevant to the rationale behind those courts’ determinations that
such claims were unavailable.

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Court would follow the majority of courts that have more recently held that computer
professionals are not subject to a higher duty of care based on their profession.
Accordingly, the Court will grant SEI’s motion to dismiss Monsanto’s professional
negligence claim.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Superior Edge, Inc.’s Motion to Dismiss [Docket No. 86] is
GRANTED in part and DENIED in part as follows:
1.

The motion is GRANTED with respect to Monsanto’s counterclaim for

Professional Negligence (Count VII). That claim is DISMISSED with prejudice.
2.

The motion is DENIED in all other respects.

DATED: September 8, 2014
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

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