Beyond Pesticides v. Monsanto Co., Civil Action No. 17–941 (TJK)

Citation311 F.Supp.3d 82
Decision Date30 April 2018
Docket NumberCivil Action No. 17–941 (TJK)
Parties BEYOND PESTICIDES et al., Plaintiffs, v. MONSANTO CO. et al., Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

Kim E. Richman, Richman Law Group, Brooklyn, NY, for Plaintiffs.

Adam S. Nadelhaft, John Justin Rosenthal, Winston & Strawn LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

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.

I. Background

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 ("Pls.' Opp."); 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.

II. Legal Standard

"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) ).

III. Analysis

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.

A. Statute of Limitations

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) ("No statute of limitations is specified for actions brought under the [DCCPPA], and so the residual three-year statute of limitations [ D.C. Code § 12–301(8) ] applies."). "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) ("[T]he challenged conduct was not the result of one incessant violation, but rather was a series of repeated violations of an identical nature, namely, the Defendants' repeated (false) advertising their drugs ...." (internal quotation marks omitted) ). "[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) ("When a defendant commits multiple wrongful acts, a separate statute of limitations attaches to each wrongful act."); Gordon & Breach Sci. Publishers S.A. v. Am. Inst. of Physics , 859 F.Supp. 1521, 1530 n.3 (S.D.N.Y. 1994) ("[W]e find each of defendants' alleged violations of the Lanham Act to be ... ‘a distinct harm giving rise to an independent claim for relief.’ " (quoting Stone v. Williams , 970 F.2d 1043, 1049 (2d Cir. 1992) ) ). 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) (claims regarding marketing for education program held in 20122013 held untimely); Silvious v. Snapple Beverage Corp. , 793 F.Supp.2d 414, 418 (D.D.C. 2011) (plaintiff's claim was time-barred because he filed the lawsuit "six years after his last alleged purchase"); Murray , 953 A.2d at 324 (DCCPPA...

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