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
matter is before the Court on plaintiffs Bader Farms, Inc.
and Bill Bader's (collectively “Bader”)
motion for leave to file a second amended complaint and to
add a party defendant (#68). The motion is briefed and ripe.
For the reasons explained below, the Court grants Bader's
facts are fully discussed in this Court's previous
memorandum and order (#50). In short, Bader alleges that
Monsanto violated standard industry practice and committed a
number of tortious acts by releasing dicamba-resistant seeds
without a corresponding herbicide. Dicamba herbicide is
highly volatile and prone to drifting, which means spray
particles move by air to non-target or neighboring sites,
sometimes miles away. Dicamba is toxic to all broadleaf
plants that are not genetically engineered to withstand it.
Here, Bader alleges that farmers who purchased Monsanto's
seeds illegally sprayed “old” dicamba; then,
dicamba spray particles drifted onto Bader's crops,
causing millions of dollars in damage.
Procedural Background and Second Amended Complaint
filed its initial petition (#4) in state court. After removal
to this Court, and while Monsanto's motion to dismiss was
pending, Bader filed a motion for leave to file an amended
complaint (#51). This Court granted the motion (#61). In its
amended complaint, Bader asserted a new claim of civil
conspiracy. Specifically, Bader alleged that Monsanto's
representatives directed farmers who purchased Monsanto's
dicamba-resistant seeds to illegally spray old dicamba
herbicide. The old dicamba would kill unwanted weeds, the
theory goes, and the seeds were resistant.
now asks to amend its complaint a second time. It seeks leave
to (1) add a party [BASF Corp.]. . .; (2) add allegations
that [it has] suffered ongoing damage in 2017 . . . from
dicamba . . .; (3) add a claim for trespass and remove [its]
claims for breach of implied warranty of merchantability and
unjust enrichment; and (4) add additional allegations
obtained in the ordinary course of this litigation.
(#68 at 1).
wants to add BASF so it can amend its civil conspiracy claim.
The conspiracy is no longer between Monsanto and the farmers
who bought dicamba-resistant seeds, according to
Bader-it's much bigger. Instead, Bader claims that
Monsanto and BASF conspired to create an “ecological
disaster” where farmers would be forced to buy
dicamba-based products. In 2015 and 2016, Monsanto and BASF
“colluded” so that Monsanto's
dicamba-resistant seeds would be released before either
company released its “new” dicamba-based
herbicide; the new dicamba would not drift like the old
dicamba. Then, the companies' agents allegedly encouraged
farmers to spray the old dicamba on their dicamba-resistant
seeds. Neighboring farmers would then be forced to buy
dicamba-resistant seeds so that old dicamba would not kill
their non-resistant plants. With all these farmers buying
dicamba-resistant seeds, the market for both companies'
new dicamba would grow.
then claims that Monsanto and BASF conspired to withhold data
and mislead federal and state regulatory agencies so their
new herbicides would be approved. The new herbicides were
used in the 2017 growing season. According to Bader, the new
dicamba still caused damage, and it seeks to add this 2017
damage in its second amended complaint. Bader also added
allegations-relating to the new herbicides-to the following
counts: strict liability-design defect, strict
liability-failure to warn, negligent design and marketing,
negligent failure to warn, negligent training, and fraudulent
challenges the request to add claims for the new conspiracy,
trespass, and additional damage in 2017.
Monsanto has filed an answer (#64), Bader “may amend
its pleading only with the opposing party's written
consent or the court's leave. The court should freely
give leave when justice so requires.” Fed.R.Civ.P.
15(a)(2); see also Bell v. Allstate Life Ins. Co.,
160 F.3d 452, 454 (8th Cir. 1998). But parties do not have an
absolute right to amend their pleadings, even under this
liberal standard. Sherman v. Winco Fireworks, Inc., 532
F.3d 709, 715 (8th Cir. 2008). Whether to grant a ...