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 defendant's motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) (#6).
Plaintiffs oppose this motion on several grounds.
alleged in plaintiffs' complaint, plaintiffs are engaged
in a massive peach growing business and have a very
successful orchard in Dunklin County, Missouri. Defendant is
a global agrochemical and agricultural biotechnology
corporation, well known for its development of genetically
engineered (“GE”) seeds in addition to its
development of herbicides. At issue in this case is the
commercial release and sale of two of defendant's GE
seeds, Roundup Ready 2 Xtend soybeans (“Xtend
soybeans”) and Bollgard II XtendFlex cotton seeds
(“Xtend cotton”). The seeds were subject to
federal regulation by the Animal and Plant Health Inspection
Service (“APHIS”), and following an investigation
of their safety, they were deregulated, which allowed them to
be sold. Xtend cotton seeds were first sold in 2015, and
Xtend soybean seeds were first sold in 2016.
sales occurred, however, before the Environmental Protection
Agency approved the seeds' corresponding weed-killing
herbicide, XtendiMax, for commercial release. Plaintiffs
allege that defendant violated standard industry practice and
committed a number of tortious acts by releasing its new GE
seeds without such an existing, approved herbicide on the
market as a “complete crop system.” The
foreseeable result of this negligent act, plaintiffs contend,
was that third-party farmers were enticed to spray dicamba -
a generic herbicide - onto their new GE seed crops to curb
inevitable weed growth, ignoring product warning labels for
the GE seeds as well as prohibitions under federal and state
law. Further, because dicamba “drifts” onto
surrounding properties, the spraying and drift of dicamba
caused millions of dollars in damage to plaintiffs' peach
Xtend seeds are unusual because they are resistant to the
herbicide dicamba, so that dicamba will not harm the Xtend
seed crops. Dicamba has been manufactured and marketed since
1967 by several companies, but not Monsanto. Before 2015,
dicamba was not often used by American farmers in-crop
because it is a “highly volatile” herbicide that
“is prone to drift” onto surrounding properties.
Drift is a term used to denote the airborne movement of
herbicide spray particles to non-target or neighboring sites,
sometimes miles away. Also, dicamba is a selective herbicide,
meaning that it is used to kill broadleaf weeds, as opposed
to eradicating plants in the grass family. But dicamba is
toxic to all broadleaf plants such as fruits, nuts,
vegetables, and notably, cotton and soybeans that are not
genetically engineered to withstand it.
Court understands, dicamba historically has been used during
the “burndown” period, meaning it was applied
before the planting of seeds as a pre-season weed control
option. When applied in the burndown period, dicamba's
drift problem is not as pronounced as it is when applied
“over the top” of crops, but in general, dicamba
has not been used over the top of crops after crop emergence.
With the development of dicamba-resistant seeds to produce
crops, spraying dicamba over the top has become an option -
albeit an unlawful one - for farmers to use as a weed-killing
herbicide. Unfortunately, the volatility and drift problems
of older formulations of dicamba are no less present, as is
the case here.
defendant's new dicamba technology, XtendiMax, just
recently approved, will not share the same drift problems as
old dicamba. If applied correctly, XtendiMax will kill
broadleaf weeds on the fields of dicamba-resistant crops and
will not drift onto the property of neighboring landowners.
Plaintiffs allege that defendant invested over a billion
dollars into the development of XtendiMax because of the rise
of “super weeds” that are resistant to Roundup,
another Monsanto herbicide. Roundup, which contains
glyphosate, is a non-selective herbicide, meaning it can kill
most plants. Dicamba can be used in conjunction with Roundup,
and together, these two herbicides will kill most weeds,
increasing the yield of the farmer's crops. But
plaintiffs allege that due to old dicamba's volatility
and drifting, it can serve as a vehicle that transports
Roundup miles away, possibly causing great damage to many
types of plants.
acknowledge that at all relevant times of this lawsuit - 2015
and 2016 - it was a violation of state and federal law to use
old dicamba on the seeds. Additionally, plaintiffs
acknowledge that the use of dicamba on the seeds was
“off-label” and expressly prohibited by product
use labels on the bags containing the GE seeds. Finally,
plaintiffs concede that the defendant did not manufacture,
distribute, sell, or apply the dicamba sprayed by the
third-party farmers on their crops that drifted onto
as noted, plaintiffs claim they were harmed by
defendant's release of the Xtend seeds because it was
foreseeable that third-party farmers who purchased the seeds
would illegally spray older formulations of dicamba onto
their own crops to kill weeds, and that dicamba drifted onto
plaintiff's property, causing millions of dollars of
damages. Plaintiffs proceed with nine state-law claims,
including: (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)
purpose of a Rule 12(b)(6) motion to dismiss for failure to
state a claim is to test the sufficiency of a complaint so as
to eliminate those actions “which are fatally flawed in
their legal premises and deigned to fail, thereby sparing
litigants the burden of unnecessary pretrial and trial
activity.” Young v. City of St. Charles, 244
F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v.
Williams, 490 U.S. 319, 326-27 (1989)). “To
survive a motion to dismiss, a claim must be facially
plausible, meaning that the ‘factual content. . .
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.'”
Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861
(8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). The Court must “accept the
allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.”
Id. (quoting Coons v. Mineta, 410 F.3d
1036, 1039 (8th Cir. 2005)).
reviewing a Rule 12(b)(6) motion, if documents outside the
pleadings are presented and not excluded, the motion must be
treated as a motion for summary judgment. Fed.R.Civ.Pro.
12(d). However, “Rule 12(b)(6) motions are not
automatically converted into motions for summary judgment
simply because one party submits additional matters in
support of or [in] opposition to the motion.” Gorgo
v. Best Buy Co., Inc., 760 F.3d 787, 791 (8th Cir.2014)
(citation omitted). Documents that are necessarily embraced
by the pleadings are not matters outside the pleadings for
purposes of Rule 12(d). Id. “Documents
necessarily embraced by the pleadings include documents whose
contents are alleged in a complaint and whose authenticity no
party questions, but which are not physically attached to the
pleading” and may be considered in a motion to dismiss.
Ashanti v. City of Golden Valley, 666 F.3d 1148,
1151 (8th Cir. 2012). Further, “any error in a district
court's failure to treat a motion for judgment on the
pleadings as one for summary judgment ‘is harmless if
the nonmoving party had an adequate opportunity to respond to
the motion and material facts were neither disputed nor
missing from the record.'” Surgical Synergies,
Inc. v. Genesee Associates, Inc., 432 F.3d 870, 873 (8th
Cir.2005) quoting Kerr v. Fed. Emergency Mgmt.
Agency, 113 F.3d 884, 885 (8th Cir.1997) (internal
Proximate Causation ...