Beyond Pesticides v. Monsanto Co.
Decision Date | 30 April 2018 |
Docket Number | Civil Action No. 17–941 (TJK) |
Citation | 311 F.Supp.3d 82 |
Parties | BEYOND PESTICIDES et al., Plaintiffs, v. MONSANTO CO. et al., Defendants. |
Court | U.S. District Court — District of Columbia |
Kim E. Richman, Richman Law Group, Brooklyn, NY, for Plaintiffs.
Adam S. Nadelhaft, John Justin Rosenthal, Winston & Strawn LLP, Washington, DC, for Defendants.
On March 31, 2018, the Court issued an Order, ECF No. 12, denying Defendant Monsanto Company's Motion to Dismiss, ECF No. 9, and stating that a Memorandum Opinion would follow within thirty days. This Opinion sets forth the reasons for the Court's Order.
Defendant Monsanto Company ("Monsanto") manufactures and sells a product known as Roundup "Garden Weeds" Weed & Grass Killer ("Roundup"). ECF No. 7 ("Am. Compl.") ¶ 1. Roundup includes an active ingredient called glyphosate, which, according to Monsanto's advertising and labeling, "targets an enzyme found in plants but not in people or pets." Id. ¶ 7. Pursuant to its obligations under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq. , Monsanto submitted its Roundup labels, including the text quoted above, to the EPA for approval. ECF No. 9–1 ("Def.'s Mot.") at 4–5. In 2008, the EPA approved the labels for commercial use, concluding that they were "acceptable." See id. at 5; ECF No. 9–3 ("Ex. 2"); ECF No. 9–4 ("Ex. 3"); ECF No. 9–5 ("Ex. 4"). Since then, Monsanto has repeated this claim on its Roundup labels. Def.'s Mot. at 1; Am. Compl. ¶ 66. In 2014, the EPA reviewed these labels again and determined that the language was, again, "acceptable." ECF No. 9–6.
On April 7, 2017, Plaintiffs filed a complaint in the Superior Court of the District of Columbia against Monsanto and unnamed Doe defendants alleging violations of the District of Columbia Consumer Protection Procedures Act ("DCCPPA"), D.C. Code § 28–3901 et seq. , for unlawful trade practices. See ECF No. 1–4. After Monsanto removed the case to this Court based on diversity of citizenship, ECF No. 1, Plaintiffs filed an amended complaint, Am. Compl.
In their amended complaint, Plaintiffs allege that the claim that Roundup targets an enzyme "found in plants but not in people or pets" is false and misleading because that enzyme "is found in people and pets." Am. Compl. ¶¶ 7, 9. Specifically, they assert that glyphosate, the active ingredient in Roundup, targets an enzyme that exists in "gut bacteria" found in humans and other mammals. Id. ¶¶ 9, 47–51. Plaintiffs allege that Monsanto is aware that its labels and advertising are false, id. ¶¶ 68–72, but continues to repeat this claim because "consumers are more likely to buy—and will pay more for—weed killer formulations that do not affect people and animals," id. ¶ 55.
On July 10, 2017, Monsanto filed a Motion to Dismiss the Amended Complaint on the grounds that Plaintiffs' claims are time-barred, that Plaintiffs fail to state a claim because the statement at issue is not false or misleading, and that Plaintiffs' claims are preempted by FIFRA. Def.'s Mot.; see also ECF No. 10 () ; ECF No. 11 ("Def.'s Reply"). On March 31, 2018, the Court denied Monsanto's Motion to Dismiss and stated that a Memorandum Opinion would follow within thirty days. See ECF No. 12.
"A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff's complaint; it does not require a court to ‘assess the truth of what is asserted or determine whether a plaintiff has any evidence to back up what is in the complaint.’ " Herron v. Fannie Mae , 861 F.3d 160, 173 (D.C. Cir. 2017) (quoting Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002) ). "In evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.’ " Hettinga v. United States , 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979) ). "But the Court need not accept inferences drawn by plaintiff if those inferences are not supported by the facts set out in the complaint, nor must the court accept legal conclusions cast as factual allegations." Id. "To survive a motion to dismiss, a complaint must have ‘facial plausibility,’ meaning it must ‘plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Id. (alteration in original) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
Monsanto moves to dismiss on the grounds that Plaintiffs' claims are time-barred, fail to state a claim because the statement at issue on Roundup labels is not false or misleading, and are preempted. Def.'s Mot. The Court addresses each in turn.
The statute of limitations "may ... ‘be raised by pre-answer motion under Rule 12(b),’ but only if ‘the facts that give rise to the defense are clear from the face of the complaint.’ " Stewart v. Int'l Union, Sec., Police & Fire Prof'ls of Am. , 271 F.Supp.3d 276, 280 (D.D.C. 2017) (quoting Smith–Haynie v. District of Columbia , 155 F.3d 575, 578 (D.C. Cir. 1998) ). "Dismissal is improper, however, ‘as long as a plaintiff's potential rejoinder to the affirmative defense [is not] foreclosed by the allegations in the complaint.’ " Id. (alteration in original) (quoting de Csepel v. Republic of Hungary , 714 F.3d 591, 608 (D.C. Cir. 2013) ). "Because statute of limitations issues often depend on contested questions of fact, ... the court should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint." Adams v. District of Columbia , 740 F.Supp.2d 173, 180 (D.D.C. 2010), aff'd , 618 Fed.Appx. 1 (D.C. Cir. 2015).
"[T]he [DCCPPA] is subject to a three-year statute of limitations." Reese v. Loew's Madison Hotel Corp. , 65 F.Supp.3d 235, 248 (D.D.C. 2014) (citing D.C. Code §§ 28–3905, 12–301(8) ); see also Murray v. Wells Fargo Home Mortg. , 953 A.2d 308, 323 (D.C. 2008) (). "Under District of Columbia law, a [DCCPPA] ‘claim accrues for purposes of the statute of limitations at the time the injury actually occurs.’ " Reese , 65 F.Supp.3d at 248 (quoting Murray , 953 A.2d at 324 ). "Because [Monsanto] has raised its statute of limitations defense in a motion to dismiss, the Court must take the allegations of the complaint as true." Stewart , 271 F.Supp.3d at 281 (citing Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ).
Monsanto argues that Plaintiffs' claims are time-barred because Plaintiffs knew that glyphosate targeted an enzyme that existed in human and animal gut bacteria by 2013—if not earlier. Def.'s Mot. at 6; see also Def.'s Reply at 3–6. In response, Plaintiffs argue that (1) Monsanto continues to violate the DCCPPA by falsely marketing Roundup, so "at a minimum" it is "subject to suit for any sales of Roundup made in the last three years"; (2) Monsanto's deliberate concealment of the relevant facts regarding Roundup tolls the statute of limitations under the "discovery rule"; and (3) the continuous-conduct doctrine also tolls the statute of limitations. Pls.' Opp. at 5–8.
The Court has little trouble concluding that Plaintiffs' claims are not time-barred in their entirety. Plaintiffs' theory is that "that there have been a series of repeated violations of an identical nature." Figueroa v. D.C. Metro. Police Dep't , 633 F.3d 1129, 1135 (D.C. Cir. 2011) (internal quotation marks omitted); see also Axcan Scandipharm Inc. v. Ethex Corp. , 585 F.Supp.2d 1067, 1078 (D. Minn. 2007) . "[B]ecause each violation gives rise to a new cause of action, each [violation] begins a new statute of limitations period as to that particular event." Figueroa , 633 F.3d at 1135 (quoting Knight v. Columbus , 19 F.3d 579, 582 (11th Cir. 1994) ). As a result, "[a]s long as a defendant keeps committing wrongful acts resulting in injury, plaintiff will be able to bring some cause of action within the statutory period dating from such wrongs." Perkins v. Nash , 697 F.Supp. 527, 532 (D.D.C. 1988) ; cf. East West, LLC v. Rahman , 896 F.Supp.2d 488, 505 (E.D. Va. 2012) (); Gordon & Breach Sci. Publishers S.A. v. Am. Inst. of Physics , 859 F.Supp. 1521, 1530 n.3 (S.D.N.Y. 1994) . Thus, Plaintiffs' claims cannot be dismissed as time-barred because, at the very least, claims regarding sales of Roundup in the last three years are timely.
The cases Monsanto cites do not hold otherwise. See Def.'s Mot. at 1, 5; Def.'s Reply at 4. Some cases it cites involve claims brought under the DCCPPA. The plaintiffs in those cases were challenging allegedly fraudulent sales or misrepresentations that occurred at a specific point in time outside the statute of limitations. See Bradford v. George Wash. Univ. , 249 F.Supp.3d 325, 330, 335–36 (D.D.C. 2017) ( ); Silvious v. Snapple Beverage Corp. , 793 F.Supp.2d 414, 418 (D.D.C. 2011) ( ); Murray , 953 A.2d at 324 (...
To continue reading
Request your trial-
In re Dicamba Herbicides Litig.
...they were preempted. And, the third case, Wilgus , followed Smith without much additional analysis.See also Beyond Pesticides v. Monsanto Co. , 311 F.Supp.3d 82, 93 n.4 (D.D.C. 2018) (collecting cases).As plaintiffs point out, many cases have held failure-to-warn claims are not pre-empted b......
-
Holyfield v. Chevron U.S.A., Inc.
...F. Supp. 3d 711 (E.D. Mo. 2019) ; In re Roundup Prods. Liab. Litig. , 364 F. Supp. 3d 1085 (N.D. Cal. 2019) ; Beyond Pesticides v. Monsanto Co. , 311 F. Supp. 3d 82 (D.D.C. 2018) ; Blitz v. Monsanto Co. , 317 F. Supp. 3d 1042 (W.D. Wis. 2018) ; Rawa v. Monsanto Co. , No. 4:17-CV-01252 AGF, ......
-
Clean Label Project Found. v. Garden of Life, LLC
... ... in fact they were contaminated with toxic heavy metals, ... pesticides, and BPA. Compl. ¶¶ 123-31, ECF No. 1-1 ... (describing alleged violation of D.C. Code § ... vindicate that right.'” Beyond Pesticides v. Dr ... Pepper Snapple Grp., Inc ., 2019 WL 2744685, at *1 ... (D.D.C ... Beyond Pesticides v. Monsanto Co. , 311 F.Supp.3d 82 ... (D.D.C. 2018), but that case did not even examine injury in ... ...
-
United States v. Wesley, Criminal Action No. 01–17 (CKK)
... ... [and there is no] particular behavior that can be characterized as remarkable or going beyond expectations." Id at 3.LEGAL STANDARD Pursuant to 18 U.S.C. 3583(e), a court, after considering ... ...
-
District of Columbia
...17. Mann v. Bahi, 251 F. Supp. 3d 112, 126 (D.D.C. 2017) (internal citations omitted). 18. See Beyond Pesticides v. Monsanto Co., 311 F. Supp. 3d 82, 90 (D.D.C. 2018) (even if advertising claim that Roundup pesticide targets “an enzyme found in plants but not in people or pets” could be con......