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In re Dicamba Herbicides Litigation

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

May 31, 2018

IN RE DICAMBA HERBICIDES LITIGATION

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on plaintiffs' motion to remand (#8) in McIvan Jones Farm, Inc. v. Monsanto Co., 1:18-CV-21-SNLJ (E.D. Mo.). The matter was briefed extensively, and the motion is now ripe. Plaintiffs' motion will be granted because plaintiffs have not alleged any state-law cause of action that depends on a substantial issue of federal law.

         I. Factual and Procedural Background

         Plaintiffs hope to represent any producer who grew soybeans that were “not resistant to and [were] damaged by dicamba herbicide.” (#2 at 29, ¶ 169). They claim Monsanto released its dicamba-tolerant seed in 2015 and 2016 with no corresponding dicamba herbicide. As a result, farmers illegally sprayed an old formulation of dicamba herbicide that was unapproved for in-crop, over-the-top, use, and was “volatile, ” or prone to drift. This damaged neighboring crops, which supposedly forced neighboring farmers to plant Monsanto's dicamba-tolerant seed defensively. In 2017, Monsanto finally released its dicamba herbicide. This new dicamba formulation was approved for in-crop use. Plaintiffs claim this new formulation is still volatile and still damaged intolerant soybeans in neighboring fields.

         Plaintiffs bring state-law counts for (1) strict liability-ultrahazardous, (2) negligence, (3) strict liability-defective design, and (4) trespass. Especially relevant here, plaintiffs allege Monsanto was negligent due to product labeling shortcomings.

         Plaintiffs filed this case in state court. Defendants removed under 28 U.S.C. § 1441(a), which allows a defendant to remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction[.]” Defendants claim this Court has original federal question jurisdiction under 28 U.S.C. § 1331, which grants federal district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” So this motion boils down to a simple question: does any one of plaintiffs' claims arise under federal law?

         II. Legal Background

         “[T]he question whether a claim ‘arises under' federal law must be determined by reference to the ‘well-pleaded complaint.'” Great Lakes Gas Transmission Ltd. P'ship v. Essar Steel Minn. LLC, 843 F.3d 325, 329 (8th Cir. 2016) (alteration in original) (quoting Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986)). “The well-pleaded complaint rule ‘provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.'” Id. (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). As such, “it is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of [ordinary] pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar Inc., 482 U.S. at 393.

         Instead, “[f]ederal question jurisdiction exists if the well-pleaded complaint establishes either [1] that federal law creates the cause of action or [2] that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Great Lakes Gas, 843 F.3d at 329 (quoting Williams v. Ragnone, 147 F.3d 700, 702 (8th Cir. 1998)). These are the two paths to federal-question jurisdiction. See Dillon v. Medtronic, Inc., 992 F.Supp.2d 751, 755 (E.D. Ky. 2014).

         The first path, in which federal law creates the cause of action, is the most common path to federal-question jurisdiction. Merrell Dow, 478 U.S. at 808. The second path, in which the well-pleaded complaint raises “significant federal issues, ” Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005), is much less common. It “applies only to a ‘special and small category' of cases that present ‘a nearly pure issue of law, one that could be settled once and for all and thereafter would govern numerous . . . cases.'” Great Lakes Gas, 843 F.3d at 331 (alteration in original) (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699-700 (2006)). “The paradigmatic example of a state claim with an embedded (though not necessarily significant) federal issue is a common-law claim for negligence per se based on the violation of a federal duty.” Dillon, 992 F.Supp.2d at 756.

         This case deals only with the second path to federal-question jurisdiction. As the removing party, the burden to show that this case belongs on the second, uncommon path is Monsanto's. In re Business Men's Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993).

         III. Discussion

         The Supreme Court recently explained the second path to federal-question jurisdiction as follows: “[F]ederal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013) (interpreting Grable). All in all, “Grable stands for the proposition that a state-law claim will present a justiciable federal question only if it satisfies both the well-pleaded complaint rule and passes the ‘implicate[s] significant federal issues' test. Cal. Shock Trauma Air Rescue v. State Comp. Ins. Fund, 636 F.3d 538, 542 (9th Cir. 2011) (alteration in original) (quoting Grable, 545 U.S. at 311); see also Dillon, 992 F.Supp.2d at 757.

         Again, under the well-pleaded complaint test, the Court looks at the complaint only to decide whether “plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Great Lakes Gas, 843 F.3d at 329 (emphasis added) (quoting Williams, 147 F.3d at 702). So, the heart of this issue is whether an element of one of plaintiffs' state-law claim turns on a substantial federal question. See Dillon, 992 F.Supp.2d at 757 (“Even if they are substantial, federal questions triggering jurisdiction must still appear amid the elements of the plaintiff's cause of action.”); 13D Charles Alan Wright et al., Federal Practice & Procedure ยง 3566 (3d ...


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