Monsanto Company v. E.I. Dupont De Nemours and Company et al

Filing 1589

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Monsanto's Motion to Enforce the Courts Order Regarding Defendants' Third Amended Answer and Counterclaims [ECFNo. 1304 ] is GRANTED in part. IT IS FURTHER ORDERED t hat by September 21, 2012, Defendants shall file their Fourth Amended Answer and Counterclaims that comports with the instructions herein. IT IS FURTHER ORDERED that Monsanto will not be allowed to file a responsive pleading to Defendants' Fourth Amended Answer and Counterclaims. ( Response to Court due by 9/21/2012.) Signed by District Judge E. Richard Webber on 08/30/2012. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MONSANTO COMPANY and
MONSANTO TECHNOLOGY LLC,
Plaintiffs,
vs.
E.I. DUPONT DE NEMOURS AND
COMPANY and PIONEER HI-BRED
INTERNATIONAL, INC.,
Defendants.

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Case No. 4:09CV00686 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiffs Monsanto Company and Monsanto
Technology LLC’s (collectively, “Monsanto”) Motion to Enforce the Court’s Order Regarding
Defendants’ Third Amended Answer and Counterclaims [ECF No. 1304].
I.

FACTUAL AND PROCEDURAL BACKGROUND
On May 2, 2012, the Court granted Defendants E.I. Du Pont de Nemours and Company and

Pioneer Hi-Bred International, Inc. (collectively, “Defendants”) leave to amend their Second
Amended Answer and Counterclaims (“SAAC”) [ECF No. 1168]. The Court permitted Defendants
1) to add a claim of False Advertising under the Lanham Act; 2) to withdraw “the claims and
allegations regarding corn product and the ongoing DOJ antitrust investigation,”; and 3) “to amend
[ ] allegations only to reflect Defendants’ decision to terminate plans to commercialize RR/OGAT
stacked soybeans.” ECF No. 1168. All other requests for leave to amend were denied. The Court
also requested that Defendants note each claim and allegation that had been stricken by the Court
in its December 21, 2011 Order. Id.
Defendants filed their Third Amended Answer and Counterclaims (“TAAC”) on May 14,
2012 [ECF No. 1275].

II.

LEGAL STANDARD
Federal Rule of Civil Procedure 15(a)(2) states that courts should freely grant leave to amend

pleadings “when justice so requires.” “[P]arties 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) (internal citation omitted). “A district court appropriately denies the movant leave
to amend if there are compelling reasons such as undue delay, bad faith, or dilatory motive, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving
party, or futility of the amendment.” Id. at 715 (internal quotations and citation omitted). A
proposed amendment is futile where the court concludes that the newly-pled claim could not survive
a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Cornelia I. Crowell GST Trust v. Possis Med.,
Inc., 519 F.3d 778, 784 (8th Cir. 2008). That said, “the Eighth Circuit has been clear that a district
court should be reluctant to deny a motion to amend based on the merits of the asserted claim or
defense,” and that denial based on futility should therefore only occur where the amendments assert
“clearly frivolous claims or defenses.” See Monsanto Co. v. Genesis AG, Ltd., 2007 WL 45789, at
*2 (E.D. Mo. 2007) (citing Becker v. Univ. of Nebraska at Omaha, 191 F.3d 904, 908 (8th Cir.
1999); Gamma-10 Plastics, Inc. v. Am. President Lines, Ltd., 32 F.3d 1244, 1255 (8th Cir. 1994)).
Defendants requested leave to amend their SAAC after the amendment deadline imposed by
the Amended Case Management Order1 (CMO) has passed. [ECF No. 282]. Therefore, the Court
consulted and applied Rule 16(b)(4), which provides that a scheduling order may be modified only
for good cause. Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 610 (8th Cir. 2011) (“When

1

The Amended Case Management Order [ECF No. 282] is not the most recent Case
Management Order (CMO). However, the most recent CMO relating to the antitrust case, the
First Amended CMO Antitrust Counterclaims [ECF No. 934], does not address amendments to
the pleadings.
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a party moves for leave to amend outside the district court’s scheduling order, Fed. R. Civ. P. 16(b),
‘not the more liberal standard of [Fed. R. Civ. P. 15(a)],’ governs and requires the party to show
good cause to modify the schedule.”); Trim Fit, LLC v. Dickey, 607 F.3d 528, 531 (8th Cir. 2010);
Sherman, 532 F.3d at 716. “The primary measure of good cause is the movant’s diligence in
attempting to meet the [CMO]’s requirements.” Sherman, 532 F.3d at 716-17 (8th Cir. 2008)
(quoting Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)). A court may deny the motion based
on undue prejudice to the non-moving party. Trim Fit, 607 F.3d at 531. However, while prejudice
to the non-moving party is a relevant factor, it need not be considered if the movant has not
demonstrated diligence. Sherman, 532 F.3d at 717.
In addition, the Court has inherent power to enforce its orders. See Chambers v. NASCO,
501 U.S. 32, 44-45 (1991) (noting the district courts’ inherent authority to enforce their orders); see
also Thompson v. Edward D. Jones & Co., 992 F.2d 187, 189 (8th Cir. 1993) (“District courts have
an inherent authority to enforce their injunctions.”).
III.

DISCUSSION
Monsanto asserts that Defendants have not complied with the Court’s May 2, 2012 Order by

adding or amending claims that do not comport with the Court’s instructions. Specifically,
Monsanto contends that Defendants 1) added language that Monsanto is foreclosing competition
from products containing generic Roundup Ready (“RR”) as opposed to only stand-alone generic
RR; 2) added language that Monsanto is foreclosing competition by refusing access to regulatory
data required for regulatory approval; 3) added language alleging a new product that would compete
in the corn market; and 4) failed to denote all of the allegations and that had been stricken by the
December 21, 2011 Order.

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Having reviewed the TAAC, the Court finds that Defendants have added unauthorized
material. The complained-of additions are beyond the leave sought and granted by the Court. Under
Rules 15 and 16, once leave is granted to amend the pleadings, the amendments must fall within the
scope of the Court’s authorization. See Scott v. Suburban Journals, 2009 WL 2252585 *3 (E.D. Mo.
July 29, 2009). Without this implicit requirement that the amended pleadings comport with a court’s
order that allowed the amendment, Rule 15 and 16’s explicit requirement that party have court
authorization to amend pleadings is meaningless.
In this case, the Court specifically allowed for the addition of only the False Advertising
claim. ECF No. 1168 at 11. Other allowances required Defendants to withdraw claims and to
modify language to reflect Defendants’ current intent not to commercialize RR/OGAT products.
Defendants’ amendments go well beyond the Court’s Order. For example, Defendants added the
phrase “soybean products containing” to the existing language “generic Roundup Ready®” to a few
paragraphs. See TAAC ¶¶ 455, 456, 457, 459. In the SAAC, only generic RR products were
captured by the allegations. Cf. SAAC ¶¶ 473, 474, 475, 477. This additional language changes the
meaning of the allegations to encompass products beyond generic RR, including stacked soybean
products that contain generic RR and other traits. Defendants state that this language merely reflects
what is contained in other allegations. Although some of the sentiments expressed by the added
language are contained in other allegations, Defendants did not seek leave to make this amendment
and the Court did not and will not grant such leave. Therefore, language added in TAAC ¶¶ 12, 14,
20, 450, 455, 456, 457, 459, 464 will be stricken.
Regarding the added language that addresses Monsanto’s regulatory conduct, this language
is an end-run around the Court’s May 2, 2012 Order that specifically denied leave to add allegations
about denied letters of access. Therefore, TAAC ¶¶ 18, 52, 465, and 468 will be stricken.

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In addition, Defendants did not seek leave to add the allegation contained in TAAC ¶ 40.
Therefore, that paragraph will be stricken.
Finally, the Court finds that Defendants properly noted the allegations stricken by the
December 21, 2011 Order.
IV.

CONCLUSION
Defendants added allegations and language beyond the scope of the leave granted by the May

2, 2012 Order. Therefore, this Motion will granted in part. Defendants are to file a Fourth Amended
Answer and Counterclaims (“FAAC”) that comports with this order by September 21, 2012.
Because the FAAC should not add any additional claims, Monsanto will not be need to file a
responsive pleading. If Monsanto feels the FAAC does not comport with this Order, Monsanto may
file a motion to strike non-compliant portions.
Accordingly,
IT IS HEREBY ORDERED that Monsanto’s Motion to Enforce the Court’s Order
Regarding Defendants’ Third Amended Answer and Counterclaims [ECF No. 1304] is GRANTED
in part.
IT IS FURTHER ORDERED that by September 21, 2012, Defendants shall file their
Fourth Amended Answer and Counterclaims that comports with the instructions herein.
IT IS FURTHER ORDERED that Monsanto will not be allowed to file a responsive
pleading to Defendants’ Fourth Amended Answer and Counterclaims.
Dated this 30th day of August, 2012.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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