United States District Court, E.D. Missouri, Southeastern Division
STEVEN W. LANDERS,, on behalf of themselves, all other similarly situated, and the Class they seek to represent, Plaintiffs,
MONSANTO COMPANY, Defendant.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
Steven and Deloris Landers are soybean, corn, and cotton
farmers in New Madrid County, Missouri. They filed this
action on behalf of a class of plaintiffs who farm in
Alabama, Arkansas, Illinois, Kentucky, Minnesota,
Mississippi, Missouri, North Carolina, Tennessee, and Texas,
and whose crops were affected by the herbicide dicamba.
Plaintiffs filed this action against defendant Monsanto
Company, alleging that Monsanto's “Xtend seed
system” and its purchasers' inevitable use of
dicamba --- a drift-prone herbicide --- has resulted in the
loss of hundreds of thousands of acres of farmland.
Monsanto has moved to dismiss.
to the complaint, the putative class of plaintiffs grow a
variety of crops in ten states. 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”)
(together, the “GE seeds” or “Xtend
seeds”). The GE 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.
Xtend seeds are unusual because they are resistant to the
herbicide dicamba, which has been sold 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
can kill broadleaf plants such as certain fruit trees, nut
trees, vegetables, and notably, cotton and soybeans that are
not genetically engineered to withstand it.
Court understands it, 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
represents that its new dicamba technology, XtendiMax, just
recently approved, will not share the same drift problems as
old dicamba. If applied correctly, XtendiMax should 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
genetically-engineered 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 not genetically
engineered to withstand dicamba or Roundup.
defendant sold the Xtend seeds in 2015 and 2016 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 onto their new GE seed crops to curb
inevitable weed growth and that the dicamba drifted to
neighboring fields and caused millions of dollars in damage
to plaintiffs' crops.
acknowledge that at all relevant times of this lawsuit - 2015
and 2016 - it was a violation of state and federal law for
the third-party farmers to use old dicamba on the seeds.
Defendants maintain such use was also expressly prohibited by
product use labels on the bags containing the GE seeds.
Plaintiffs allege that the Xtend seed farmers used old
dicamba regardless of these prohibitions.
further allege that defendant's “representatives
made a practice of directing farmers who purchased the Xtend
seeds to illegally spray dicamba to their Xtend crops to
protect their crops.” Comp. ¶ 120. Specifically,
plaintiffs submit the testimony of one such farmer who
purchased defendant's dicamba-resistant cotton seeds and
admitted to illegally spraying dicamba over the top of his
crops. The farmer testified before the Arkansas State Plant
Board on the allegation that his illegal action of spraying
dicamba on his property damaged his neighbor's
non-dicamba-resistant crops. Further, the farmer testified
that a representative of defendant instructed him that he
could spray dicamba over the top of the cotton that emerged
from defendant's dicamba-resistant cotton seeds.
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 identify
eleven counts in their complaint, 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; (9) punitive damages;
(10) civil conspiracy; and (11) class action.
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 ...