United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
CRITES-LEONI, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the Motion to Dismiss, or in
the Alternative, for a More Definite Statement, filed by
Defendant Michael C. Pemberton. (Doc. 7.) Plaintiff has filed
a Response to Defendant's Motion. (Doc. 11.) For the
reasons stated below, the Court will deny Defendant's
Keller Farms is an Illinois corporation that owns and
operates farmland on Route 77 in Benton, Missouri (the
“Property”). In the Complaint, Plaintiff states
that, at the beginning of the 2015 growing season, Keller
Farms had planted 897 acres of wheat, 100 acres of sweet
corn, and 99 acres of horseradish on the Property. Keller
Farms also had a sycamore tree farm, and numerous other
additional trees and foliage for windbreak and ornamental
Dennis E. McGarity was licensed by the Missouri Department of
Agriculture (“MDOA”) as a commercial applicator,
and Defendant Michael C. Pemberton was licensed by the MDOA
as a private applicator.
alleges that, on April 23, 2015, Defendant McGarity applied
Clarifer herbicide, Afforia herbicide and Roundup Powermax II
via aerial application to 303 acres of farmland situated to
the northeast of the Property. Plaintiff claims that these
pesticide chemicals drifted with the wind and landed on the
Property. Plaintiff alleges that, on May 13, 2015, Defendant
Pemberton applied Defy Amine 4 and Warrant Herbicide to 262
acres of farmland situated to the south of the Property, and
that these chemicals drifted with the wind and landed on the
Property. Plaintiff claims that the MDOA, through the Bureau
of Pesticide Control, investigated the wind drift damage to
the Property, collected samples of damaged trees and crops
from the Property, and subsequently issued letters of warning
to Defendants dated February 3, 2016. Plaintiff claims that
it suffered the following damages: 897.22 acres of wheat were
damaged resulting in lost sales in the approximate amount of
$114, 016; 30, 000 bags of corn were unable to be sold
totaling lost damages in the approximate amount of $500, 000;
11.5 acres of the horseradish crop were damaged, causing lost
sales in the approximate amount of $19, 174; the ornamental
trees on the Property were damaged, resulting in a loss of
value of $317, 882; trees on the Property that serve a vital
windbreak function were damaged, including 319 dead sycamore
trees and 42 dead pine trees, resulting in a repair and
replacement estimate of approximately $180, 500; and lost
business relations and business reputation with one of its
major purchasers due to being unable to fill 2015 purchase
orders from pesticide damaged corn.
Count I, Plaintiff asserts a negligence per se claim against
all Defendants, claiming that Keller Farms sustained damage
to the Property as a result of Defendants' misuse of
pesticide in violation of Missouri statutes and regulations.
In Count II of the Complaint, Plaintiff alleges that
Defendants were negligent in applying the chemicals and
pesticides listed above, which resulted in damage sustained
to the Property. In Count III, Plaintiff asserts a claim for
trespass and treble damages based on Defendants'
application of pesticides and chemicals on the Property.
Motion to Dismiss
Defendant Pemberton argues that the Complaint should be
dismissed as unintelligible for the following reasons:
typographical errors are contained in paragraphs 7 and 9; the
Complaint does not state which of the seven or more chemicals
damaged which of the tree crops and sycamore trees; and the
dates Pemberton and McGarity sprayed are three weeks apart.
responds that the Complaint specifically states the date on
which Defendant Pemberton allegedly sprayed the crops, and
identifies the chemicals sprayed that allegedly drifted onto
Plaintiff's farm. Plaintiff also attached to the
Complaint copies of the letters from the State of Missouri
citing the Defendants for their improper use of herbicides.
Plaintiff states that the Complaint identifies the damages
suffered, and the Complaint alleges that both Defendants
contributed to the damage. Defendant argues that the
parties' relative responsibilities for the damages await
the discovery process and will be a jury issue.
ruling on a Rule 12(b)(6) motion to dismiss, the court must
accept as true all of the factual allegations in the
complaint, but it need not accept legal conclusions.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies
the plausibility standard “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556).
Plaintiff's allegations, taken as true, are sufficient
“to state a claim to relief that is plausible on its
face” Twombly, 550 U.S. at 570, Defendant
Pemberton's Motion to Dismiss will be denied.
Motion for More ...