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Bader Farms, Inc. v. Monsanto Co.

United States District Court, E.D. Missouri, Southeastern Division

October 20, 2017

MONSANTO CO., Defendant.



         This 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 motion.

         I. Factual Background

         The 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.

         II. Procedural Background and Second Amended Complaint

         Bader 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.

         Bader 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).

         Bader 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.

         Bader 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 concealment.

         Monsanto challenges the request to add claims for the new conspiracy, trespass, and additional damage in 2017.

         III. Legal Standard

         Because 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 ...

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