Andy Timmons, Inc. d/b/a Lost Draw Vineyards, et al v. Bayer Crop Science, LP et al

Filing 28

MEMORANDUM AND ORDER re: 2 filed by BASF Corporation, 13 MOTION to Remand Case to State Court to Jefferson County, Texas filed by Plaintiff All Plaintiffs. IT IS HEREBY ORDERED that plaintiffs' motion to remand [Doc. 13] is GRANTED. IT IS FURTHER ORDERED that defendant BASF's motion to sever [Doc. 2] is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 1/7/22. (CSG)

Case: 1:21-cv-00104-SNLJ Doc. #: 28 Filed: 01/07/22 Page: 1 of 7 PageID #: 169

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ANDY TIMMONS, INC. d/b/a LOST
DRAW VINEYARDS, et al.
Plaintiffs,
v.
MONSANTO CO., et al.,
Defendants.

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MDL No. 1:18md2820 SNLJ
Case No. 1:21cv104 SNLJ

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MEMORANDUM and ORDER

This matter involves 57 vineyard owners and four related entities that claim their
wine grape crops were damaged in the High Plains region of Texas by the dicamba-tolerant
cotton seed system sold by the defendants Bayer Crop Science LP, Monsanto Company,
and BASF Corporation. Plaintiffs filed their lawsuit in state court in Jefferson County,
Texas. Jefferson County is home to BASF’s nationwide dicamba manufacturing facility,
where it makes dicamba herbicide. Defendant BASF removed the case to federal court in
the Eastern District of Texas citing the federal court’s diversity jurisdiction. With the
agreement of the parties, the case was transferred to the Multidistrict Litigation pending
here in this Court, In re: Dicamba Herbicides Litigation. Plaintiffs have filed a motion to
remand [Doc. 13], pointing out that subject matter jurisdiction is lacking because complete
diversity does not exist. Indeed, one of the 57 High Plains Texas vineyards—Hilltop
Winery at Paka Vineyards, LLC—is a citizen of New York and New Jersey. Defendant
BASF is also a citizen of New Jersey. Defendant BASF contends this does not destroy the
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Court’s subject matter jurisdiction because plaintiff Hilltop Winery was “improperly
joined” and thus defendant has filed a Motion to Sever. [Doc. 2.]
District courts “have original jurisdiction of all civil actions when a matter in
controversy ... is between (1) citizens of different states.” 28 U.S.C. § 1332(a). The party
seeking the federal forum has both the burden of pleading diversity of citizenship of the
parties, Walker v. Norwest Corp., 108 F.3d 158, 161 (8th Cir.1997), and the burden of
establishing diversity jurisdiction by a preponderance of the evidence. Sheehan v.
Gustafson, 967 F.2d 1214, 1215 (8th Cir.1992); Yeldell v. Tutt, 913 F.2d 533, 537 (8th
Cir.1990); Russell v. New Amsterdam Cas. Co., 325 F.2d 996, 997 (8th Cir.1964). The
Court is mindful that removal statutes must be strictly construed because they impede upon
states' rights to resolve controversies in their own courts. Nichols v. Harbor Venture, Inc.,
284 F.3d 857, 861 (8th Cir. 2002). The Court must resolve “all doubts about federal
jurisdiction in favor of remand.” Transit Cas. Co v. Certain Underwriters at Lloyd's of
London, 119 F.3d 619, 625 (8th Cir.1997). Where there are multiple plaintiffs and
defendants, “a federal court does not have diversity jurisdiction unless there is diversity
between all plaintiffs and all defendants.” Iowa Pub. Serv. Co. v. Med. Bow Coal, Co., 556
F.2d 400, 403–404 (8th Cir. 1977). But “if the ‘nondiverse’ plaintiff is not a real party in
interest, and is purely a formal or nominal party, his or its presence in the case may be
ignored in determining jurisdiction.” Id.
Defendant BASF urges this Court to adopt the “fraudulent misjoinder” doctrine set
forth in Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), and to
use its authority under Federal Rule of Civil Procedure 21 to sever Hilltop Winery’s claims
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to find that this Court has jurisdiction. Fraudulent misjoinder is a concept distinct from
fraudulent joinder. Fraudulent joinder occurs where a plaintiff files a frivolous claim
against a non-diverse defendant solely to prevent removal. Filla v. Norfolk S. Ry. Co., 336
F.3d 806, 810 (8th Cir. 2003). Fraudulent misjoinder focuses on whether a plaintiff has
joined a viable—but wholly unrelated—claim to try to destroy diversity. In Tapscott, the
plaintiffs were comprised of two distinct groups with two distinct claims against unrelated
defendants—one group of plaintiffs brought claims arising from the sale of service
contracts on automobiles, and the other group brought claims arising from the sale of
service contracts on retail products. The court held there was misjoinder under Federal
Rule of Civil Procedure 20 because there was “no real connection” between the two sets of
alleged transactions. Tapscott, 77 F.3d at 1360. The Eleventh Circuit held that the
plaintiffs’ misjoinder of the claims constituted an “attempt to join these parties” that was
“so egregious as to constitute fraudulent joinder.” Id.
The Eighth Circuit has not directly addressed Tapscott’s misjoinder doctrine. Even
if Tapscott were the law in the Eighth Circuit, however, it is not applicable here. This is
not a case in which wholly unrelated claims with “no real connection” have been joined as
they were in Tapscott. Defendant BASF states that “Hilltop Winery’s claims should be
disregarded because joinder of them is improper,” [Doc. 1 at 17], because BASF says that
individual issues will predominate the plaintiffs’ claims and because non-individual issues
can be handled more efficiently through the MDL. [Id. at 16.] That hardly makes Hilltop
Winery’s joinder improper. Rule 20 permits plaintiffs to join in one action if “they assert
any right to relief…with respect to or arising out of the same transaction, occurrence, or
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series of transactions or occurrences” and “any question of law or fact common to all
plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(1)(A) and (B). BASF contends
that the plaintiffs cannot show that the same “transaction or occurrence” (i.e., the same
application of dicamba) resulted in alleged damage to vineyards. Multiple applications of
dicamba would have been involved.
However, “in construing Rule 20, the Eighth Circuit has provided a very broad
definition for the term ‘transaction.’” In re Prempro Products Liab. Litig., 591 F.3d 613,
622 (8th Cir. 2010). The Eighth Circuit noted that “‘Transaction’ is a word of flexible
meaning. It may comprehend a series of many occurrences, depending not so much upon
the immediateness of their connection as upon their logical relationship.” Id. (quoting
Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir. 1974)). Tellingly, the Eighth
Circuit declined to find misjoinder in a case in which multiple plaintiffs’ claims arose from
a series of transactions between drug manufacturers and individuals who used those
medications. Prempro, 591 F.3d at 623. The Prempro plaintiffs argued that their claims
were “logically related because they each developed breast cancer as a result of the
manufacturers’ negligence” in creating and selling the medications. Id. The Eighth Circuit
found that unlike in Tapscott where there was “no real connection” between the two sets
of plaintiffs, “here, here may be a palpable connection between the plaintiffs' claims
against the manufacturers as they all relate to similar drugs and injuries and the
manufacturers' knowledge of the risks” of those drugs. Id. The Eighth Circuit also noted
that the defendants had presented no evidence that the plaintiffs joined their claims to
avoid diversity jurisdiction. Id.
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The same is true here. Each of the plaintiffs appears to be located in the same
general region of northwest Texas, and the sole nondiverse plaintiff is squarely within that
cluster of vineyards. [See Doc. 14 at 9.] Each of the plaintiffs alleges that its vineyards
were damaged by dicamba that moved off its cotton target and onto neighboring grape
vines. Plaintiffs allege that because “regional aggregation” of the dicamba is occurring
across millions of acres of cotton, the plaintiff vineyards are suffering shared exposures
from multiple areas of dicamba application. The non-diverse plaintiff Hilltop Winery is in
the same area and alleges it suffered the same exposures and incurred the same type of
damage caused by the same product and the same negligence. This Court finds that
plaintiff Hilltop Winery’s claims clearly assert a right to relief arising out of the same
transaction, occurrence, or series of transactions or occurrences as do the other plaintiffs’
claims. Further, questions of law and fact common to all plaintiffs will arise in the action,
as the parties in the soybean-focused dicamba litigation have discovered. Although
individual questions may exist, this Court sees no basis to declare that any “egregious
misjoinder” has taken place here. This would also not be the first dicamba case to be
remanded to state court, 1 and it is this Court’s understanding that the discovery and other
efficiencies gleaned in the MDL have been applied to the extent possible to the state court
proceedings.

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See, e.g., In re Dicamba Herbicides Litig., 1:18-CV-21-SNLJ, 2018 WL 2447792 (E.D. Mo. May
31, 2018) (granting motion to remand in McIvan Jones Farm, Inc. v. Monsanto Co., 1:18-CV-21SNLJ (E.D. Mo.) and remanding to Mississippi County, Missouri); King v. Monsanto Co., 1-18MD-02820-SNLJ, 2019 WL 5213036, at *1 (E.D. Mo. Oct. 16, 2019) (remanding to Maury
County, Tennessee).

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Finally, defendant Monsanto argues that the matter should not be remanded
because some plaintiffs have entered into Technology Stewardship Agreements (the
“Agreement”) with Monsanto that contains an arbitration clause for cotton-related claims
arising from the sale or performance of cotton seed. Thus, Monsanto argues, each
individual plaintiff’s claim will have to be considered with respect to whether they must
arbitrate their claims. Even if not required to arbitrate, another provision in the
Agreement requires the Eastern District of Missouri be the sole jurisdiction and venue for
relevant claims and disputes. Ultimately, Monsanto’s arguments regarding the Agreement
do not change this Court’s analysis with respect to its diversity jurisdiction. Diversity is
simply not present here, and this Court does not have jurisdiction to decide the
applicability of the Agreement at all.
This Court declines to find that plaintiff Hilltop Winery was fraudulently joined or
misjoined, and thus this Court does not have subject matter jurisdiction over this matter.

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Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion to remand [Doc. 13] is
GRANTED.
IT IS FURTHER ORDERED that defendant BASF’s motion to sever [Doc. 2] is
DENIED.
So ordered this 7th day of January, 2022.

STEPHEN N. LIMBAUGH, JR.
SENIOR UNITED STATES DISTRICT JUDGE

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