United States District Court, E.D. Missouri, Eastern Division
For Monsanto Company, Monsanto Technology, LLC, Plaintiffs: Daniel C. Cox, LEAD ATTORNEY, THOMPSON COBURN, LLP, St. Louis, MO.
For Omega Farm Supply, Inc., doing business as Omega Farm Supply & Gin Company, Defendant: Michael I. Krause, LEAD ATTORNEY, MERCHANT AND GOULD, PC, Atlanta, GA.
MEMORANDUM AND ORDER
JOHN A. ROSS, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on Defendant Omega Farm Supply, Inc.'s Motion to Dismiss Counts I, II and IV of Plaintiff Monsanto Company's Complaint and Motion to Transfer Remaining Counts Due to Improper Venue. (Doc. No. 9) The motion is fully briefed and ready for disposition.
Plaintiff Monsanto brings this action for breach of contract and patent infringement against Defendant Omega Farm Supply, Inc. (" Omega" ), a Georgia corporation in the business of distributing farm input supplies, including seed, and the ginning, warehousing and marketing of cotton. (Complaint (" Compl." ), Doc. No. 1 at ¶ 10) Monsanto is in the business of developing, manufacturing, licensing, and selling agricultural biotechnology, agricultural chemicals, and agricultural products. After the investment of substantial time, expense, and expertise, Monsanto developed plant biotechnology that results in tolerance to glyphosate-based herbicides (such as Roundup WeatherMAX® and Touchdown® ) as well as certain insect species that are cotton plant pests. (Id. at ¶ 2) Cotton seed containing these biotechnologies is marketed by Monsanto under multiple trade names, including Roundup Ready® and Roundup Ready® Flex cotton, Bollgard® and Bollgard II® cotton, and Roundup Ready® Flex with Bollgard II® cotton. (Id. at ¶ 3) The biotechnology is protected by multiple United States patents, including United States Patent Numbers 6,949,696 (" the '696 patent" ) issued on September 27, 2005 and 7,064,249 (" the '249 patent" ) issued on June 20, 2006. (Id. at ¶ ¶ 4, 5; Doc. Nos. 1-1, -2)
Monsanto only licenses the use of Roundup Ready® Flex, Bollgard II®, and
Roundup Ready® Flex with Bollgard II® seed technologies to farmers through authorized dealers at the retail marketing level with a limited use license commonly referred to as a " Technology Agreement." (Compl. at ¶ 17) Authorized licensees must pay a " technology fee" to Monsanto for each commercial unit of seed in addition to the price of the base germplasm. (Id. at ¶ 18) The planting and transferring of saved, second generation Roundup Ready® Flex, Bollgard II®, and Roundup Ready® Flex with Bollgard II® is prohibited under the Technology Agreement. (Id. at ¶ ¶ 21, 22)
In August 2005, Omega entered into a Monsanto Brand Seed Dealer Agreement (" MBSD," Doc. No. 1-3) with Monsanto which established Omega as a designated dealer for certain branded seed. (Id. at ¶ 19) The MBSD requires Omega to notify Monsanto of known or suspected use of pirated seed containing Monsanto technologies and cooperate in Monsanto's enforcement of its contract and patent rights. (Compl. at ¶ ¶ 41, 44; MBSD at ¶ 8) Pursuant to the MBSD, the parties consented to sole and exclusive jurisdiction and venue in this Court " for all claims and disputes arising out of or connected in any way with [the] Agreement or the seed referenced [therein]." (MBSD at ¶ 20)
Monsanto alleges that " for years," Omega breached its contract with Monsanto by failing to report the unauthorized use of Monsanto seed technologies. Monsanto further alleges that Omega breached its contract with Monsanto and committed patent infringement by soliciting and making sales of pirated seed containing patented Monsanto technologies, including sales to unlicensed farmers. (Id. at ¶ 33) According to Monsanto, Omega also encouraged and assisted in the seed saving activity. (Id. at ¶ 34)
Omega moves to dismiss Monsanto's breach of contract claim (Count I) as well as its claims for inducement to infringe (Counts II and IV). In the event the breach of contract claim is dismissed, Omega moves for transfer of the remaining counts to the Middle District of Georgia pursuant to 28 U.S.C. § 1404.
A. Motion to dismiss