Bader Farms, Inc. et al v. Monsanto Company
MEMORANDUM AND ORDER re: 6 MOTION to Dismiss Case filed by Defendant Monsanto Company, 51 MOTION to Amend/Correct Complaint filed by Plaintiff Bill Bader, Plaintiff Bader Farms, Inc., 52 MOTION to Vacate /Obj ection/Motion for Discovery filed by Plaintiff Bill Bader, Plaintiff Bader Farms, Inc. IT IS HEREBY ORDERED that plaintiffs' motions for leave to file an amended complaint (#51) and to vacate order treating defendant's motion to dism iss as a motion for summary judgment and motion for discovery (#52) are GRANTED. IT IS FURTHER ORDERED that defendant's converted motion for summary judgment (#6) is DENIED as moot.The Court will order a Rule 16 Conference forthwith. Signed by District Judge Stephen N. Limbaugh, Jr on 6/29/17. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
BADER FARMS, INC. and
Case No. 1:16-CV-299 SNLJ
MEMORANDUM AND ORDER
This case comes before the Court on defendant’s motion to dismiss that was
converted by this Court into defendant’s motion for summary judgment (#6, #50), and
plaintiffs’ motions for leave to file amended complaint (#51) and to vacate order treating
defendant’s motion to dismiss as a motion for summary judgment and motion for
discovery (#52). The motions are briefed and ripe for disposition. Because the Court
grants plaintiffs’ motion for leave to file an amended complaint, the plaintiffs’ motion to
vacate this Court’s previous order is necessarily granted. Defendant’s converted motion
for summary judgment is therefore denied as moot.
As more fully discussed in this Court’s previous memorandum and order (#50),
plaintiffs allege that their peach orchard was damaged when defendant commercially
released its genetically-engineered and dicamba-resistant cotton and soybean seeds
without a corresponding herbicide. Plaintiffs contend that defendant violated standard
industry practice and committed a number of tortious acts by essentially releasing only
half of the complete crop system. Because defendant only released half of the complete
crop system, plaintiffs allege, it was reasonably foreseeable that third-party farmers who
purchased defendant’s seeds would illegally spray dicamba – a generic herbicide not
developed, manufactured, distributed, or sold by the defendant – onto those seeds to
prevent weed growth. Dicamba is a highly volatile herbicide that is prone to drift, a term
used to denote the airborne movement of herbicide spray particles to non-target or
neighboring sites, sometimes miles away. Dicamba is toxic to all broadleaf plants such
as fruits, nuts, vegetables, and notably, cotton and soybeans that are not genetically
engineered to withstand it. In this case, plaintiffs allege that unidentified farmers who
purchased defendant’s seeds illegally sprayed dicamba onto their own crops and that
dicamba drifted onto plaintiffs’ crops, causing millions of dollars in damage.
On December 30, 2016, defendant moved to dismiss plaintiffs’ complaint (#6) for,
inter alia, lack of proximate causation. This Court, upon consideration of the product use
labels attached to defendant’s seed packaging, converted defendant’s motion to dismiss to
a motion for summary judgment (#50). Within the same memorandum and order, this
Court granted the parties an additional twenty-one days to present other materials and
additional briefing. In response, plaintiffs filed their motions for leave to file an amended
complaint (#51) and to vacate this Court’s order treating defendant’s motion to dismiss as
a motion for summary judgment (#52). Within their motion for leave to file an amended
complaint, plaintiffs seek leave to amend their original complaint to assert a new claim of
civil conspiracy, incorporate relevant facts and allegations previously unavailable to
plaintiffs prior to filing, and add additional allegations obtained in the ordinary course of
this litigation. One such additional allegation, the basis of plaintiffs’ proposed civil
conspiracy claim, is that defendant’s “representatives made a practice of directing
farmers who purchased the Xtend seeds to illegally spray dicamba to their Xtend crops to
protect their crops.” Pl. Am. Comp. ¶ 124.
Specifically, plaintiffs submit the testimony of one such farmer who purchased
defendant’s dicamba-resistant cotton seeds and admitted to illegally spraying dicamba
over the top of his crops. The farmer testified before the Arkansas State Plant Board on
the allegation that his illegal action of spraying dicamba on his property damaged his
neighbor’s non-dicamba-resistant crops. The farmer’s cotton farm is located in the same
county as plaintiffs’ orchards. Further, the farmer testified that a representative of
defendant instructed him that he could spray dicamba over the top of the cotton that
emerged from defendant’s dicamba-resistant cotton seeds.
Under the Federal Rules of Civil Procedure, a party may amend its pleading once
as a matter of course under specified conditions that are not applicable here. For all other
amendments, Rule 15(a)(2) provides “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.” However, parties do not have an absolute right to amend their
pleadings, even under this liberal standard. Sherman v. Winco Fireworks, Inc., 532 F.3d
709, 715 (8th Cir. 2008). Whether to grant a motion for leave to amend is within the
discretion of the court. Popoalii v. Correctional Med. Servs., 512 F.3d 488, 497 (8th Cir.
A district court appropriately denies a movant for leave to amend if there are
compelling reasons such as “undue delay, bad faith, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the nonmoving party, or futility
of the amendment.” Id. “[A] party is not entitled to amend a complaint without making a
showing that such an amendment would be able to save an otherwise meritless claim.”
Jackson v. Riebold, 815 F.3d 1114, 1122 (8th Cir. 2016) (quoting Plymouth Cnty., Iowa
v. Merscorp, Inc., 774 F.3d 1155, 1160 (8th Cir. 2014). In regards to the futility of a
proposed amendment, “[d]uplicative and frivolous claims are futile.” Reuter v. Jax Ltd.,
711 F.3d 918, 922 (8th Cir. 2013).
Plaintiffs contend that the Court should grant their motion for leave to amend
because the amendment will not cause undue delay, it is not filed in bad faith, it will not
prejudice defendant, and it is not futile. Plaintiffs assert that because no scheduling order
or trial date has been set in this action, amendment will not disturb any guidelines set by
this court. Additionally, as oftentimes occurs through the course of litigation, plaintiffs
obtained new evidence they contend support their claims and are relevant to this Court’s
proximate causation analysis. Further, plaintiffs claim that because this matter has not
reached an advanced stage of litigation, plaintiffs have not conducted meaningful
discovery, and no trial date has been set, defendant will not be prejudiced via
amendment. Finally, plaintiffs maintain that amendment will not be futile because it
complies with the requirements of Rule 12 of the Federal Rules of Civil Procedure.
Defendant, nearly exclusively, focuses on the futility of plaintiffs’ proposed
amendment, asserting that plaintiffs, even with amendment, still cannot establish
requisite elements to hold defendant liable for plaintiffs’ harm. In support, defendant
states that it cannot be held liable for the damage caused by a product it did not
manufacture, distribute, sell, or apply. Also, defendant claims that the presence of
defendant’s warnings on all seed packages sold preclude any finding that it was
foreseeable that the seed purchasers would use dicamba illegally. Finally, defendant
contends that it owed no duty to plaintiffs to prevent the harm caused by the third-party
farmers’ use of dicamba, which as noted, was not manufactured or sold by defendant.
Although the Court maintains reservation about whether defendant’s action or
inaction proximately caused plaintiffs’ injuries, the allegation that defendant’s
representatives instructed seed-purchasing farmers to illegally spray dicamba on the
defendant’s seeds, if true, would seemingly negate the effectiveness of the product use
labels attached to defendant’s seeds in addition to altering the proximate causation
analysis of this case. Rule 15(a)(2) explicitly states that a court should freely give leave
when justice so requires. Here, the Court holds that plaintiffs’ motion for leave to amend
its complaint should be granted because it was not made in bad faith or with undue delay,
amendment is not prejudicial to defendant, and the proposed amendment is not futile.
IT IS HEREBY ORDERED that plaintiffs’ motions for leave to file an amended
complaint (#51) and to vacate order treating defendant’s motion to dismiss as a motion
for summary judgment and motion for discovery (#52) are GRANTED.
IT IS FURTHER ORDERED that defendant’s converted motion for summary
judgment (#6) is DENIED as moot.
The Court will order a Rule 16 Conference forthwith.
So ordered this 29th day of June, 2017.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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