Monsanto Company et al v. Slusser

Filing 58

MEMORANDUM AND ORDER OF DEFAULT AND ORDER SETTING FURTHER PROCEEDINGS; IT IS HEREBY ORDERED that defendant Kevin Slusser is and has been in default on the complaint filed in this action, regarding plaintiffs' claims for defendant's saving a nd using plaintiffs' Roundup Ready soybean seed during the 2009 growing season in contravention of plaintiffs' patent rights and rights under their license agreement with defendant. IT IS FURTHER ORDERED that plaintiffs are granted leave to serve defendant Slusser discovery requests related to any outstanding issues in this case. Defendant Slusser shall respond to those and any outstanding discovery requests within the times set forth in the Federal Rules of Civil Procedure. Defendant Slusser shall appear in person for his deposition either as noticed by plaintiffs or as agreed upon by the parties. IT IS FURTHER ORDERED that all further discovery requests shall be submitted in hand to the opposing side not later than June 1, 2012, and shall be responded to not later than June 30, 2012. IT IS FURTHER ORDERED that, not later than July 31, 2012, plaintiffs shall file (a) a summary of the damages to which they are entitled for the 2009 growing season, and (b) a summary of their e vidence and arguments as to the issue of willfulness, if any, on the part of defendant Slusser. Defendant Slusser shall also file, not later than August 15, 2012, any written response to (a) and (b). IT IS FURTHER ORDERED that plaintiffs' reques t for a permanent injunction is sustained. Defendant Kevin Slusser is not authorized to use any of plaintiffs' patented biotechnology. Defendant Kevin Slusser is permanently enjoined from making, using, saving, cleaning, planting, selling, offer ing to sell, or otherwise transferring any seed containing plaintiffs' proprietary seed technologies, without express permission from plaintiffs. IT IS FURTHER ORDERED that an evidentiary hearing on damages and any other outstanding issues is se t for on Tuesday, September 11, 2012 at 9:30 a.m. IT IS FURTHER ORDERED that the Clerk shall mail a certified copy of this order to defendant Kevin Slusser with certification of delivery requested; (COPY BY CERTIFIED MAIL TO: Kevin Slusser, 810 Law 438, Walnut Ridge, AR 72476) . Signed by Magistrate Judge David D. Noce on 04/11/2012. (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MONSANTO COMPANY and
MONSANTO TECHNOLOGY LLC,

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Plaintiffs,
v.
KEVIN SLUSSER,
Defendant.

No. 4:10 CV 75 DDN

MEMORANDUM AND ORDER OF DEFAULT
AND ORDER SETTING FURTHER PROCEEDINGS
This action is before the court for a determination of whether a
default judgment should be entered against defendant Kevin Slusser.

The

parties have consented to the exercise of plenary authority by the
undersigned

United

States

§ 636(c).

(Doc. 17.)

Magistrate

Judge

pursuant

to

28

U.S.C.

For the reasons set forth below, the court

concludes that default judgment against defendant Slusser is appropriate.
I.

BACKGROUND

On January 14, 2010, plaintiffs Monsanto Company and Monsanto
Technology (Monsanto) filed suit against defendant Kevin Slusser, an
Arkansas farmer, alleging Slusser used Roundup Ready® seed, produced from
Roundup Ready® soybean seed planted in 2008, or earlier, which he had
saved, without authorization from Monsanto, in violation of Monsanto’s
patent rights. (Doc. 1.) Summons was served on Slusser on January 15,
2010. (Doc. 6.)
On February 5, 2010, Slusser, proceeding pro se, moved for a 40-day
extension in which to file a responsive pleading. (Docs. 6-7.) The
court sustained the motion, allowing defendant until March 17, 2010 to
file a responsive pleading. (Doc. 8.)
On February 10, 2010, the court held a status conference on
Monsanto’s motion for expedited discovery at which Slusser participated
by telephone.
The court sustained Monsanto’s motion for expedited
discovery.

(Docs. 4, 11-12.)

On February 11, 2010, the court conducted a second telephonic status
conference, at which time Slusser stated that he would respond to the
request for expedited discovery by February 17, 2010, as well as permit
inspection of his soybean fields by February 18, 2010. (Doc. 15.) On
March 2, 2010, Monsanto moved for sanctions and to compel, contending
that it had not received complete discovery responses or complete access
to Slusser’s fields.
(Doc. 21.)

Slusser filed a written opposition to the motion.

On April 7, 2010, the court conducted a telephonic hearing on the
motion to compel. (Doc. 25.) Slusser questioned Monsanto’s witness and
counsel for Monsanto. Slusser, in turn, was questioned by Monsanto’s
counsel. (Id.) At the hearing, Slusser admitted to farming three fields
with his father with his own saved Roundup Ready® soybeans, allegations
which he had previously denied in discovery responses and in
representations to the court. (Doc. 33.)
On June 17, 2010, this court sustained Monsanto’s motion, finding
that Slusser failed to provide the information requested by Monsanto in
a timely manner and that Monsanto’s efforts in investigating, filing, and
prosecuting its motion were necessary for them ultimately to acquire the
requested information. This court ordered Slusser to pay Monsanto the
sum of $1,000 as reasonable fees and expenses expended in the prosecution
of the subject motion, but stayed the obligation to pay plaintiff subject
to future order. (Id.)
At the time of the April 7 hearing, Slusser had not filed a
responsive pleading. On December 14, 2010, Monsanto moved to compel a
responsive pleading or for an order to show cause why judgment should not
be entered against him.

(Doc. 34.)

On December 15, 2010, the court sustained the motion, ordering
Slusser to file a responsive pleading to plaintiffs’ complaint no later
than December 31, 2010.

(Doc. 35.)

The court also stated that,

“[b]ecause defendant has participated in the action to the extent noted
above, the court will, upon plaintiffs’ motion, order defendant to
respond to the complaint, but will not issue an alternative show cause
order at this time.” (Id.) No responsive pleading was filed by December
31, 2010.
On January 4, 2011, the court issued a Show Cause Order, sustaining
Monsanto’s motion to compel a responsive pleading, ordering Slusser to

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provide a legally sufficient reason no later than January 18, 2011, why
default should not be entered against him, and setting a January 25, 2011
hearing on the motion for default judgment. (Doc. 37.) On January 25,
2011, Slusser submitted a note from Kelly G. Ross, O.D., an optometrist
in Walnut Ridge, Arkansas, opining that Slusser was unable to travel due
to an eye injury. (Doc. 38.)
On January 25, 2011, the court conducted a telephonic status
conference and rescheduled the hearing for February 8, 2011. (Docs. 39,
40.)
On February 8, 2011, Slusser filed a Notice of Bankruptcy, and
proceedings in this court were automatically stayed. (Doc. 41.) On
December 19, 2011, the bankruptcy court granted Monsanto’s motion to
modify the automatic stay, allowing this action to proceed.
(Doc. 53.)
On February 7, 2012, the court held a show cause hearing on
Monsanto’s request for a default judgment.
Slusser participated by
conference telephone call. The court ordered post-hearing briefing to
be submitted no later than February 14, 2012. (Doc. 55.)
On February 15, 2012, Slusser submitted a document which stated in
its entirety:
Finding liability in 2009 no one representing
Monsanto explained to me that I was not allowed to
save seed.
A signature on the document that
supposedly binds me is not my signature and is a
forgery.
Support for request for discovery. I have tried to
comply with discovery but I do not have a lot of
resources, attorneys or access to records to comply
with lots of discovery.
I have no problem in not using any Monsanto
products; I cannot get back in farming and have no
use for their products.
(Doc. 57.)
In support of its request for default judgment, Monsanto seeks a
finding that Slusser infringed United States Patent No. 5,352.605,
infringed United States Patent No. RE 39,247E, breached his contract with
Monsanto, and was unjustly enriched as a result of the aforementioned
acts during the 2009 growing season when he planted Roundup Ready®
soybeans.

Monsanto seeks leave to serve discovery related to any
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outstanding issues in this case, and for Slusser to respond to that
discovery within the times set forth in the Federal Rules of Civil
Procedure.

Monsanto

also

seeks

an

order

that

deposition when properly noticed by Monsanto.
after

it

afforded

complete

responses

to

Slusser

appear

for

Monsanto requests that

the

requested

discovery

concerning 2009 and prior years, it will provide the court with its
damages calculation for the 2009 growing season and, if necessary,
briefing on liability and damages for any prior growing seasons. At that
time, Monsanto would also submit any evidence and arguments as to the
issue of willfulness of Slusser’s infringing activities.
With respect to its complaint for a permanent injunction, Monsanto
seeks a finding that Slusser is not authorized to use any of Monsanto’s
patented biotechnology.

Monsanto seeks to permanently enjoin Slusser

from making, using, saving, cleaning, planting, selling, offering to sell
or otherwise transferring any seed containing Monsanto’s proprietary seed
technologies, without express consent from Monsanto.
II.

DISCUSSION

“The entry of a default judgment should be a ‘rare judicial act.’”
Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009 (8th Cir. 1993) (quoting
Edgar v. Slaughter, 548 F.2d 770, 773 (8th Cir. 1977)). Entry of default
judgment pursuant to Federal Rule of Civil Procedure 55 is appropriate
where “a party fails to appropriately respond in a timely manner,”
Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010), or “the party
against whom the judgment is sought has engaged in willful violations of
court rules, contumacious conduct, or intentional delays,” but not as a
“sanction for a marginal failure to comply with time requirements.”
Forsythe v. Hales, 255 F.3d 487, 490 (8th Cir. 2001).
“A default judgment entered by the court binds the party facing the
default as having admitted all of the well pleaded allegations in the
plaintiff’s complaint.”

Angelo Iafrate Constr., LLC v. Potashnick

Constr., Inc., 370 F.3d 715, 722 (8th Cir. 2004). Upon default, the
factual allegations of the complaint, except those relating to amount of
damages, are taken as true, but it remains for court to consider whether
unchallenged facts constitute a legitimate cause of action, since a party

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in default does not admit mere conclusions of law.”
F.3d 868, 871 (8th Cir. 2010).

Murray v. Lene, 595

The court finds that Slusser has not provided a legally sufficient
reason as to why he has failed to file a responsive pleading to the
complaint within the time periods provided by the rules or the order of
this court. The record is clear that Slusser was put on notice that his
failure to file a responsive pleading could result in a default judgment
against him.
The court declines to construe the February 15, 2012 document (Doc.
57) as a responsive pleading to the complaint. The court finds that this
document, filed over two years after he was served with summons (Doc. 6),
does not serve to explain his failure to properly respond to the
complaint as previously required. Therefore, this court concludes that
defendant Kevin has been in default on the complaint filed in this action
since December 15, 2010.
Because defendant

(Docs. 8, 35.)
Slusser actively

participated

in

several

proceedings in this case, but never filed an answer to the complaint
within the time limits required by law and within the time limits set by
court order, the court concludes that he is in default in this action and
that a judgment of liability must be entered against him. The court
concludes that defendant infringed United States patent No. 5,352,505,
infringed United States Patent NO. RE 39,247 E, breached his contract
with Monsanto, converted seed containing Monsanto’s patented technology,
and was unjustly enriched as a result of those acts during the 2009
growing season when he planted saved Roundup Ready® soybeans.
A default judgment cannot be entered until the amount of damages has
been ascertained. Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040,
1042 (8th Cir. 2000). When a default judgment is entered on a claim for
an indefinite or uncertain amount of damages, facts alleged in the
complaint are taken as true, except facts relating to the amount of
damages, which must be proved in a supplemental hearing or proceeding.
Everyday Learning Corp., v. Larson, 242 F.3d 815, 818-19 (8th Cir. 2001)
(even if liability for tortious interference with contract was
established, which includes an element of loss, plaintiff still had to
prove actual damages to a reasonable degree of certainty); See Am. Red
Cross v. Cmty. Ctr. of the Ozarks, 257 F.3d 859, 864 (8th Cir. 2001)
(court properly found plaintiff failed to prove its damages where its

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damages expert's testimony and valuation methods were suspect, and the
expert failed to adequately separate out alleged damages due to
legitimate competition).
A party entitled to default judgment is
required to prove the amount of damages that should be awarded. Oberstar
v. FDR, 987 F.2d 494, 505 n.9 (8th Cir. 1993).
Accordingly,
IT IS HEREBY ORDERED that defendant Kevin Slusser is and has been
in default on the complaint filed in this action, regarding plaintiffs’
claims for defendant’s saving and using plaintiffs’ Roundup Ready®
soybean seed during the 2009 growing season in contravention of
plaintiffs’ patent rights and rights under their license agreement with
defendant.
IT IS FURTHER ORDERED that plaintiffs are granted leave to serve
defendant Slusser discovery requests related to any outstanding issues
in this case.
Defendant Slusser shall respond to those and any
outstanding discovery requests within the times set forth in the Federal
Rules of Civil Procedure. Defendant Slusser shall appear in person for
his deposition either as noticed by plaintiffs or as agreed upon by the
parties.
IT IS FURTHER ORDERED that all further discovery requests shall be
submitted in hand to the opposing side not later than June 1, 2012, and
shall be responded to not later than June 30, 2012.
IT IS FURTHER ORDERED that, not later than July 31, 2012, plaintiffs
shall file (a) a summary of the damages to which they are entitled for
the 2009 growing season, and (b) a summary of their evidence and
arguments as to the issue of willfulness, if any, on the part of
defendant Slusser.

Defendant Slusser shall also file, not later than

August 15, 2012, any written response to (a) and (b).
IT IS FURTHER ORDERED that plaintiffs’ request for a permanent
injunction is sustained.

Defendant Kevin Slusser is not authorized to

use any of plaintiffs’ patented biotechnology.

Defendant Kevin Slusser

is permanently enjoined from making, using, saving, cleaning, planting,
selling, offering to sell, or otherwise transferring any seed containing
plaintiffs’ proprietary seed technologies, without express permission
from plaintiffs.

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IT IS FURTHER ORDERED that an evidentiary hearing on damages and any
other outstanding issues is set for on Tuesday, September 11, 2012 at
9:30 a.m.
IT IS FURTHER ORDERED that the Clerk shall mail a certified copy of
this order to defendant Kevin Slusser with certification of delivery
requested.

/S/
David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on April 11, 2012.

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