Bader Farms, Inc. et al v. Monsanto Company

Filing 76

MEMORANDUM AND ORDER re: 68 MOTION for Leave to File Second Amended Complaint and Add Party Defendant filed by Plaintiff Bill Bader, Plaintiff Bader Farms, Inc. IT IS HEREBY ORDERED that Bader's motion for leave to file an amended complaint and to add a party defendant (#68) is GRANTED. Signed by District Judge Stephen N. Limbaugh, Jr on 10/20/17. (CSG)

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

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Case No. 1:16-CV-299-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs Bader Farms, Inc. and Bill Bader’s
(collectively “Bader”) motion for leave to file a second amended complaint and to add a
party defendant (#68). The motion is briefed and ripe. For the reasons explained below,
the Court grants Bader’s motion.
I.

Factual Background
The facts are fully discussed in this Court’s previous memorandum and order

(#50). In short, Bader alleges that Monsanto violated standard industry practice and
committed a number of tortious acts by releasing dicamba-resistant seeds without a
corresponding herbicide. Dicamba herbicide is highly volatile and prone to drifting,
which means spray particles move by air to non-target or neighboring sites, sometimes
miles away. Dicamba is toxic to all broadleaf plants that are not genetically engineered
to withstand it. Here, Bader alleges that farmers who purchased Monsanto’s seeds

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illegally sprayed “old” dicamba; then, dicamba spray particles drifted onto Bader’s crops,
causing millions of dollars in damage.
II.

Procedural Background and Second Amended Complaint
Bader filed its initial petition (#4) in state court. After removal to this Court, and

while Monsanto’s motion to dismiss was pending, Bader filed a motion for leave to file
an amended complaint (#51). This Court granted the motion (#61). In its amended
complaint, Bader asserted a new claim of civil conspiracy. Specifically, Bader alleged
that Monsanto’s representatives directed farmers who purchased Monsanto’s dicambaresistant seeds to illegally spray old dicamba herbicide. The old dicamba would kill
unwanted weeds, the theory goes, and the seeds were resistant.
Bader now asks to amend its complaint a second time. It seeks leave
to (1) add a party [BASF Corp.]. . .; (2) add allegations that [it has] suffered
ongoing damage in 2017 . . . from dicamba . . .; (3) add a claim for trespass
and remove [its] claims for breach of implied warranty of merchantability
and unjust enrichment; and (4) add additional allegations obtained in the
ordinary course of this litigation.
(#68 at 1).
Bader wants to add BASF so it can amend its civil conspiracy claim. The
conspiracy is no longer between Monsanto and the farmers who bought dicamba-resistant
seeds, according to Bader—it’s much bigger. Instead, Bader claims that Monsanto and
BASF conspired to create an “ecological disaster” where farmers would be forced to buy
dicamba-based products. In 2015 and 2016, Monsanto and BASF “colluded” so that
Monsanto’s dicamba-resistant seeds would be released before either company released its
“new” dicamba-based herbicide; the new dicamba would not drift like the old dicamba.
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Then, the companies’ agents allegedly encouraged farmers to spray the old dicamba on
their dicamba-resistant seeds. Neighboring farmers would then be forced to buy
dicamba-resistant seeds so that old dicamba would not kill their non-resistant plants.
With all these farmers buying dicamba-resistant seeds, the market for both companies’
new dicamba would grow.
Bader then claims that Monsanto and BASF conspired to withhold data and
mislead federal and state regulatory agencies so their new herbicides would be approved.
The new herbicides were used in the 2017 growing season. According to Bader, the new
dicamba still caused damage, and it seeks to add this 2017 damage in its second amended
complaint. Bader also added allegations—relating to the new herbicides—to the
following counts: strict liability—design defect, strict liability—failure to warn, negligent
design and marketing, negligent failure to warn, negligent training, and fraudulent
concealment.
Monsanto challenges the request to add claims for the new conspiracy, trespass,
and additional damage in 2017.
III.

Legal Standard
Because Monsanto has filed an answer (#64), Bader “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); see also Bell v. Allstate
Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998). But 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
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within the discretion of the court. Popoalii v. Correctional Med. Servs., 512 F.3d 488,
497 (8th Cir. 2008).
A district court may deny a motion to amend if (1) it was filed with undue delay,
(2) the moving party filed the motion with bad faith or dilatory motive, (3) the opposing
party would be unfairly prejudiced by the amendment, or (4) the amendment would be
futile. Bell, 160 F.3d at 454. “In most cases, ‘[d]elay alone is insufficient justification;
prejudice to the nonmovant must also be shown.’” Moses.com Secs., Inc. v.
Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005) (alteration in
original) (quoting Bell, 160 F.3d at 454).
Parties may be added as a defendant if (1) “any right to relief is asserted against
them jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences” and (2) “any question of
law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2).
IV.

Discussion
The Court must analyze the motion under both Rule 15 and Rule 20.

Because Monsanto attacks only the new conspiracy, trespass, and ongoing 2017 crop
damage claims, the Court will discuss only those proposed claims.
A.

Rule 15 Amended Pleadings
1.

New Conspiracy

First, Monsanto suggests that Bader filed this motion in bad faith or with dilatory
motive in an effort to evade summary judgment. While Monsanto claims that it engaged
in targeted discovery to move for summary judgment on the amended complaint,
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Monsanto has not yet filed a motion for summary judgment. Here, its reliance on
authority where courts denied motions to amend after motions for summary judgment
were filed and discovery was complete is misplaced. Nothing in the record suggests that
Bader filed this motion in bad faith or with dilatory motive.
Second, Monsanto argues that a motion to amend should be denied when a
plaintiff has already been given a chance to cure defects in the complaint and failed. But
here, Bader did not amend its original petition to cure any defect; it amended to add a
civil conspiracy claim. This argument fails, too.
Third, Monsanto claims that Bader’s facts in support of the alleged conspiracy
between Monsanto and BASF were alleged in the original petition. Because Bader could
have added this claim from the outset, the claim is now unduly delayed. But typically,
delay alone is insufficient, and the non-moving party must also show prejudice.
Moses.com Secs., 406 F.3d at 1065. Monsanto does not claim it will be prejudiced if the
Court allows this amendment. It does argue that it should not have to begin the discovery
process over again, though. In its second amended complaint, Bader claims that
Monsanto and BASF conspired to encourage illegal spraying of old dicamba herbicides
(#68-1 at 110, ¶631). So Monsanto’s targeted discovery is still relevant. Moreover, the
discovery deadline is still eleven months away. Monsanto will not be unfairly prejudiced
by these amendments.
Fourth, Monsanto argues that the new conspiracy claim would be futile.
Specifically, it claims that Bader fails to allege any facts showing a meeting of the minds
to pursue an unlawful objective. But Bader alleges that Monsanto and BASF conspired
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to create this “ecological disaster.” Together, the companies pushed for the release of
Monsanto’s dicamba-resistant seeds. This allowed BASF to sell its old dicamba
herbicide to farmers who sprayed it illegally. The companies then agreed to conceal
information from regulating agencies so their new dicamba herbicides would be
approved. They even coordinated public responses to the alleged damage caused by
dicamba. On its face, this claim is not futile. Furthermore, Bader alleges more than
parallel conduct and an existing, legal business agreement between the companies, as
Monsanto argues.
2.

Trespass and Ongoing 2017 Damage

Monsanto argues that it would be unfairly prejudicial if the Court allowed the
trespass claim and the claim for ongoing damage in 2017 because Bader destroyed
evidence relevant to those claims. Monsanto points out two instances in August 2017
where Bader removed peach trees from its farm. It is not clear how this is relevant to the
trespass claim—Bader’s land that was allegedly invaded is still there.
And Monsanto does not claim that Bader destroyed all of the evidence related to the
ongoing 2017 damage. It points to two isolated instances, while Bader claims that “every
acre” of its crops suffered dicamba damage (#68-1 at 99, ¶ 545). Monsanto
also inspected Bader’s farm for two days after it knew that Bader planned to add a claim
for ongoing 2017 damage. Allowing Bader to allege these claims will not unfairly
prejudice Monsanto.
B.

Rule 20 Permissive Joinder of Parties

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Monsanto does not challenge Bader’s request to add BASF under Rule 20
standards. The requirements are easily met. Bader alleges nine claims jointly and
severally against Monsanto and BASF. The claims arise out of the same transaction,
occurrence, or series of transactions or occurrences. And there are several questions of
law and fact common to the claims against Monsanto and BASF.
Accordingly,
IT IS HEREBY ORDERED that Bader’s motion for leave to file an amended
complaint and to add a party defendant (#68) is GRANTED.
So ordered this

20th

day of October, 2017.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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