Bader Farms, Inc. et al v. Monsanto Company

Filing 167

MEMORANDUM AND ORDER re: 162 MOTION for Leave to File Plaintiffs' Third Amended Complaint and Integrated Memorandum in Support filed by Plaintiff Bill Bader, Plaintiff Bader Farms, Inc. motion is GRANTED. Signed by District Judge Stephen N. Limbaugh, Jr on 4/5/19. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BADER FARMS, INC. and
BILL BADER
Plaintiffs,
v.
MONSANTO CO. and
BASF CORP.,
Defendants.

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MDL No. 1:18md2820-SNLJ
Case No. 1:16cv299-SNLJ

MEMORANDUM and ORDER
Plaintiffs Bader Farms, Inc. and Bill Bader have moved for leave to file a Third
Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a) (#162). Plaintiffs seek to
(1) add allegations that their peach orchard suffered further dicamba damage in 2018, rendering
their peach operation no longer biologically or financially sustainable; (2) remove the claims for
trespass and fraudulent concealment and add claims under Missouri Crop Protection Statutes; (3)
add allegations pertaining to defendants’ joint venture and plead joint venture liability as to each
claim; (4) add allegations to clarify that plaintiffs pursue their conspiracy claims under both
Restatement (Second) of Torts § 876(a) and (b); and (5) add additional allegations to conform
with evidence obtained in the ordinary course of this litigation.
Notably, although the Bader plaintiffs are part of this Multi-District Litigation regarding
Dicamba Herbicide, this Court entered a separate Case Management Order for Bader. The Bader
plaintiffs were not parties to the Master Crop Damage Complaint (“MCDC”) filed by the other
MDL plaintiffs on August 1, 2018. On February 6, 2019, this Court granted in part and denied in
part the defendants’ motions to dismiss the MCDC, dismissing the MCDC’s trespass claims and
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noting that the conspiracy claims arising under the Restatement (Second) of Torts § 876(a) may
not require an underlying intentional tort. Accordingly, the Court invited the Bader parties to readdress whether negligence can constitute the underlying tort in a conspiracy claim.
The Bader plaintiffs explain that the parties have engaged in discovery coordinated with
the MDL, but none of defendants’ employees have been deposed (aside from corporate
representatives testifying on topics intended to identify individuals with further relevant
information). Defendants refused to produce evidence pertaining to 2018 conduct and claims, and
the Special Master determined such discovery cannot occur until plaintiffs amend their complaint
to allege 2018 damage. Such damage was not ascertainable at the time plaintiffs filed their
Second Amended Complaint in 2017.
Rule 15(a)(2) provides, under the circumstances present here, “a party may amend its
pleading only with the opposing party’s written consent or the court’s leave. The court should
freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend pleadings
should be liberally under Rule 15(a)(2). See Buder v. Merrill Lynch, Pierce, Finner & Smith,
Inc., 644 F.2d 690, 694 (8th Cir. 1981). Factors to consider in determining whether leave to
amend should be granted include (1) whether the motion was filed in bad faith or with dilatory
motive; (2) whether the motion was filed with undue delay; (3) whether leave to amend would be
unduly prejudicial to the opposing parties; and (4) whether the proposed amendment would be
futile. Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998) (citing Foman v. Davis,
371 U.S. 178, 182 (1962)). A motion to amend should be denied “only if it asserts clearly
frivolous claims or defenses.” Gamma-10 Plastics, Inc. v. Am. President Lines, Ltd., 32 F.3d
1244, 1255-56 (8th Cir. 1994) (internal quotation omitted). “Likelihood of success on the new
claims or defenses is not a consideration for denying leave to amend unless the claim is clearly

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frivolous. Whether to grant a motion for leave to amend is within the sound discretion of the
court.” Id.
Defendants object to the motion because they believe they would be unfairly prejudiced
and that continuation of the trial date will be required. They contend that plaintiffs have
unreasonably delayed asserting their claims because the bases therefor have been known and
available to plaintiffs for at least eight months.
Plaintiffs respond that their “new” counts are not actually new at all. Instead, they are
premised on the same core theory that gives rise to plaintiffs’ case: that defendants joined
together to launch “defective” products to market that thus destroyed plaintiffs’ peach crops.
Plaintiffs insist that the revised counts merely bring plaintiffs’ complaint into compliance with
the Court’s recent MDL rulings. Further, the new counts are based on virtually identical
allegations pleaded in the Second Amended Complaint. Thus, plaintiffs maintain, very little
change is required to the scope of discovery.
To the extent plaintiffs have had knowledge of the facts underlying their amendments for
eight months, plaintiff point out that they are responding to the Special Master’s February 6,
2019 discovery ruling. The ruling was that, in order to obtain 2018 discovery, plaintiffs should
amend to specifically plead 2018 damages. Plaintiffs’ Second Amended Complaint included
that, unless defendant stopped selling their dicamba products, plaintiffs expected “to lose
millions of dollars in revenue from lost production, sales, and inventory in 2017 forward” and
that they would likely be out of business by 2019. Plaintiffs are now, through their proposed
Third Amended Complaint, specifically pleading their 2018 damages in response to the Special
Master’s directive. Plaintiffs allege that not only do the peach trees continue to suffer the effects
of dicamba drift from 2016 and 2017, which seems to be covered in the Second Amended

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Complaint, but also neighboring farmers sprayed dicamba in 2018, as well, causing new damage
to the peach orchard.
In any event, plaintiffs further maintain that the permanent damage to their peach orchard
would have been apparent to defendants when their representatives inspected the orcharge on
July 23-24, 2018. Defendants then cannot claim to be surprised by plaintiffs’ amended counts.
Plaintiffs’ expert reports, served February 25, 2019, detail the plaintiffs’ damages including the
total financial loss of the peach business. Plaintiffs have already produced documents pertaining
to 2018 damages and related discovery requests.
In light of this Court’s memorandum and order on the motions to dismiss the MCDC,
plaintiffs propose withdrawing their trespass claim and adding Missouri Crop Protection Statute
claims. The additional claims involve the same core factual and legal issues at play since the
beginning. No significant expansion or alteration of the scope of discovery will be required.
Indeed, defendants have already requested and plaintiff provided discovery related to damages
and factual discovery through 2018 and to present-day 2019. Plaintiffs responded with
documents through the present in February 2019.
This is not a close question. Plaintiffs are permitted leave to file their Third Amended
Complaint.
Accordingly,
IT IS HEREBY ORDERED that the plaintiffs’ motion for leave to file third amended
complaint is GRANTED.
So ordered this 5th day of April, 2019.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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