United States District Court, E.D. Missouri, Southeastern Division
BADER FARMS, INC. and BILL BADER Plaintiffs,
MONSANTO CO., Defendant.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
case comes before the Court on plaintiffs' Motion to
Remand (#30). Plaintiffs argue that this Court lacks subject
matter jurisdiction because they bring only Missouri state
law claims, none of which arise under federal law, and that
their claims are not preempted by federal law. Defendant
opposes this motion, arguing that this Court has original
federal question jurisdiction under 28 U.S.C. § 1331 and
that plaintiffs' claims are completely preempted under
federal law. The issues are voluminously briefed and the case
is ripe for disposition. For the following reasons,
plaintiffs' motion is denied.
case was originally filed in the 35th Judicial
Circuit Court for Dunklin County, Missouri. Defendant removed
the case to this Court, alleging original federal question
jurisdiction under 28 U.S.C. § 1331 and that
plaintiffs' claims are completely preempted under federal
law, specifically, under the Federal Plant Protection Act
(“PPA”), 7 U.S.C. §§ 7701 et
seq and regulations promulgated pursuant to the PPA.
alleged in the petition, plaintiffs' peach orchards were
damaged by the “drift” of an herbicide, dicamba,
onto their property that was illegally applied by surrounding
farmers on their own crops to prevent weed growth. Dicamba is
a “highly volatile” herbicide that “is
prone to drift” onto surrounding properties, damaging
crops that are not genetically modified to withstand the
herbicide. Although defendant did not manufacture,
distribute, sell, or apply the dicamba sprayed by the
surrounding farmers, plaintiffs contend that defendant is
liable for the damage to plaintiffs' crops because
defendant developed and sold to those farmers genetically
engineered (“GE”) soybean and cotton seeds
without selling a corresponding less-harmful herbicide to
curb weed growth on those GE seeds. Without releasing a
corresponding herbicide, plaintiffs maintain, it was
foreseeable that the farmers who purchased the new GE seeds
would resort to using dicamba to curb the weed growth on
seeds are highly regulated via federal statutes and
regulations. The Animal and Plant Health Inspection Service
(“APHIS”) is delegated the authority to regulate
biotechnology by the U.S. Department of Agriculture. Among
other things, APHIS regulates “plant pests” under
the PPA. 7 U.S.C. § 7702(14); See also 7 C.F.R.
§ 340.1. Most GE seeds are created using
agrobacterium, and all GE seeds made using
agrobacterium are presumptively considered
“plant pests” under the regulatory scheme.
See 7 C.F.R. § 340.2. The Administrator of
APHIS may be petitioned to deregulate GE seeds, but only
after a strenuous investigation process and only based on
sound science. 7 C.F.R. §340.6. Any person may petition
the Administrator that an article should not be regulated by
APHIS. 7 C.F.R. §340.6. The regulations regarding the
petition are extensive and further define what is required to
attain nonregulated status. See Id. Importantly, a
petition to deregulate an article currently regulated under
APHIS must “include information known to the petitioner
which would be unfavorable to a petition.” 7 C.F.R.
status, or deregulated status, in effect, allows for the
commercialization and sale of that product. The two seeds at
issue in this case were formally deregulated by APHIS.
However, the seeds were released to the public before the
approval of a corresponding herbicide by the Environmental
Protection Agency (“EPA”), the regulatory body
charged with the regulation of pesticides and herbicides.
Plaintiffs state that it is customary in the industry to
release both the GE seed and a corresponding herbicide to
curb weed growth as a “complete crop system.”
Ultimately, all of plaintiffs' claims are based on the
conclusion that plaintiffs would not have been harmed if
defendant released the “complete crop system” for
these GE crops. Plaintiffs nine state-law claims are: (1)
strict liability - defective design; (2) strict liability -
failure to warn; (3) negligent design and marketing; (4)
negligent failure to warn; (5) negligent training; (6) breach
of implied warranty of merchantability; (7) fraudulent
concealment; (8) unjust enrichment; and (9) punitive damages.
Standard of Removal
statutes are strictly construed. In Re Business Men's
Assur. Co. of America, 992 F.2d 181, 183 (8th Cir.
1993). Any doubts about the propriety of removal are to be
resolved in favor of remand. Central Iowa Power Co-op. v.
Indep. Transmission Sys. Operator, Inc., 561 F.3d 904,
912 (8th Cir. 2009). The party seeking removal has the burden
to establish federal subject matter jurisdiction.
Id. A civil action brought in state court may be
removed to a proper district court if that district court has
original jurisdiction over the lawsuit. 28 U.S.C. §
1441(a). District courts have “original jurisdiction of
all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331.
determine whether a claim arises under federal law,
“[t]he general rule - known as the ‘well-pleaded
complaint rule' - is that a complaint must state on its
face a federal cause of action in order for the action to be
removable on the basis of federal-question
jurisdiction.” Griffioen v. Cedar Rapids & Iowa
City Ry. Co., 785 F.3d 1182, 1188 (8th Cir. 2015).
However, a case may arise under federal law under the
“substantial federal question” doctrine when a
“state-law claim necessarily raise[s] a stated federal
issue, actually disputed and substantial, which a federal
forum may entertain without disturbing any congressionally
approved balance of federal and state
responsibilities.” Grable & Sons Metal Prods.,
Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314
(2005). However, a defendant cannot “inject a federal
question into an otherwise state-law claim and thereby
transform the action into one arising under federal
law.” Central Iowa Power Co-op., 561 F.3d at
912 (internal citation omitted). “If even one claim in
the complaint involves a substantial federal question, the
entire matter may be removed.” Pet Quarters, Inc.
v. Depository Trust & Clearing Corp., 559 F.3d 772,
779 (8th Cir. 2009) (citing Beneficial
Nat'l Bank v. Anderson, 539 U.S. 1, 9 (2003)).
Substantial Federal Question
the parties spend much effort on whether federal preemption
may apply to all counts, the motion to remand will be denied
solely on this Court's determination that Count VII -
fraudulent concealment - presents a substantial federal
question. The fraudulent conduct alleged in the petition is
that "Monsanto knew of [APHIS's and others']
ignorance of the truth and intentionally withheld the truth
about its product and its risks, " and that
"Monsanto intended that [APHIS and others] should act in
ignorance in carrying out their . . . oversight
responsibilities . . . ." The "truth" was that
there was a likelihood that farmers would illegally use the
old dicamba herbicide with their new GE soybean and cotton
seeds instead of waiting for a new "complete crop
system" herbicide compatible with the new seeds, and
that the old dicamba would tend to drift onto and destroy the
crops of neighboring farmers - like the peach crops of
plaintiffs here. The petition then states, "As a direct
result of Defendant Monsanto's concealment of these
material facts. . . [APHIS and others] were unable to perform
their task to protect the public . . . and Plaintiffs were
directly harmed in the manner herein described."
Implicit in plaintiffs' claim is that APHIS would not
have deregulated the new seeds had they known of the true
risks involved, and that the seeds would not have been
approved for sale.
prevail on the fraudulent concealment claim, then, as
plaintiffs themselves have couched it, plaintiffs must
necessarily prove, inter alia, 1) that Monsanto had a duty to
inform APHIS regarding the potential for illegal use of
dicamba with the new seeds, 2) that the information was
material to the decision to deregulate dicamba, and 3) the
lack of this information caused APHIS to be unable to perform
its regulatory duties. But plaintiffs cannot dictate what
duty was owed to APHIS, nor what kind of information should
be material to APHIS's decisions. Nor can plaintiffs
dictate the criteria under which APHIS was purportedly unable
to perform its regulatory duties. All of these state-law
proof requirements are dependent upon APHIS's actual
practices and regulations, not what plaintiffs believe those
practices and regulations should be. In that regard, the
information Monsanto is required to disclose in support of a
petition for deregulated status for its GE seed is set out in
federal regulations - 7 C.F.R. §§
340.6(b) and (c) (2017). It is that provision, in large part,
that identifies the duty to provide information and the
materiality of that information. Further, as the Supreme
Court, itself, has explained, whether federal regulatory
bodies fulfilled their duties with respect to the entities
they regulate is "inherently federal in character."
Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S.
341, 347 (2001). Finally, Count VII is in a way a collateral
attack on the validity of APHIS's decision to deregulate
the new seeds. Despite plaintiffs' argument that they are
not challenging the agency decision itself, they can only
succeed on that count if they establish that the agency
decision was incorrect due to defendant's fraudulent
concealment. Under these circumstances, disposition of Count
VII presents a substantial federal question.
& Sons Metal Products, Inc. is especially
instructive as it demonstrates how state law claims may raise
substantial federal questions even when federal regulators
are not sued. 545 U.S. at 314-16. In that case, Grable's
property was seized by the IRS to satisfy a federal tax
delinquency and subsequently was sold to a private business.
545 U.S. at 310. Five years later, Grable brought a quiet
title action in state court, claiming that the business'
title was invalid because the IRS failed to properly notify
Grable pursuant to federal law. Id. The Supreme
Court held that Grable's action arose under federal law
because the claim of title necessarily depended on the
interpretation of the notice statute under federal tax law.