Blitz v. Monsanto Co.

• Decision Date: 13 April 2018
• Docket Number: 17-cv-473-wmc
• Citation: 317 F.Supp.3d 1042
• Parties: Thomas BLITZ, Plaintiff, v. MONSANTO COMPANY, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

317 F.Supp.3d 1042

Thomas BLITZ, Plaintiff,

v.MONSANTO COMPANY, Defendant.

17-cv-473-wmc

United States District Court, W.D. Wisconsin.

Signed April 13, 2018

Aimee Wagstaff, Andrus Wagstaff, PC, Lakewood, CO, Kim Richman, Richman Law Group, Robin L. Greenwald, New York, NY, Mary Carolyn Turke, Turke & Strauss, LLP, Madison, WI, Michael L. Baum, Pedram Esfandiary, Robert Brent Wisner, Baum Hedlund Aristei Goldman, PC, Los Angeles, CA, Clark Andrew Binkley, Priscilla Denterlein, Richman Law Group, Brooklyn, NY, Michael Joseph Gabrielli, Gabrielli Levitt LLP, Bronx, NY, Michael J. Miller, Orange, VA, Robert F. Kennedy, Hurley, NY, for Plaintiff.

Thomas Patrick Heneghan, Paul D. Cranley, Husch Blackwell, LLP, Madison, WI, Adam Seth Nadelhaft, John Rosenthal, Winston & Strawn LLP, Washington, DC, George Carter Lombardi, Winston & Strawn, Chicago, IL, Jeff Scott Wilkerson, Winston & Strawn LLP, Charlotte, NC, for Defendant.

OPINION AND ORDER

WILLIAM M. CONLEY, District JudgePlaintiff Thomas Blitz filed this putative class action against Monsanto Company, alleging that the label on its product includes the following false, misleading and deceptive statement: "Glyphosate targets an enzyme found in plants but not in people or pets." (See Compl. (dkt. # 1) ¶ 34.) Presently before the court is defendant's motion to dismiss. (Dkt. # 10.) For the reasons discussed below, that motion is granted in part and denied in part.

FACTS¹

Plaintiff Thomas Blitz resides in Waunakee, Wisconsin. (Compl. (dkt. # 1) ¶ 22.) He purchased Roundup from a Home Depot store. (Id. ) Blitz alleges that the statement on the label intimating that Roundup was safe to use around people and pets induced him to purchase the product, and that he suffered pecuniary loss as a result. (Id. at ¶ 22, ¶ 75.)

Monsanto Company is a Delaware corporation headquartered in Missouri. (Id. at ¶ 18.) Monsanto manufactures Roundup®, a weed and grass-killing product.² (Compl. (dkt. # 1) ¶ 1.) The active ingredient in Roundup is glyphosate, (Id. at ¶ 2), which kills weeds and grasses by inhibiting the enzyme 5-enolpyruvylshikimate-3-phosphate

("EPSP") synthase, thus disrupting one of the steps in the so-called "shikimate pathway."³ (Id. at ¶ 29.)

Roundup's label reads: " DID YOU KNOW ? Glyphosate targets an enzyme found in plants but not in people or pets." (Id. at ¶ 35.) The Environmental Protection Agency ("EPA") has registered glyphosate as a pesticide since 1974, and it renewed that registration in 1993. (Mot. to Dismiss Br. (dkt. # 12) 12.) The EPA also approved the Roundup labels at issue as (1) EPA Reg. No. 71995-25; (2) EPA Reg. No. 71995-29; and (3) EPA Reg. No. 71995-33. (Id. ) Each label includes the same statement "Glyphosate targets an enzyme found in plants but not in people or pets." (Id. at 13.)

The parties appear to agree that EPSP is not found in human and animal cells as evidenced by the absence of the shikimate pathway. (See Br. in Opp. (dkt. # 31) 6; accord Reply (dkt. # 41) 8.) Taking plaintiff's allegations as true, however, EPSP is found in bacteria that inhabit the human and other mammalian guts. (Compl. (dkt. # 1) ¶ 30.)

OPINION

Defendant seeks dismissal of plaintiff's claims for failure to state a claim. A motion to dismiss under Rule 12(b)(6) is designed to test the complaint's legal sufficiency. See Fed. R. Civ. P. 12(b)(6). Dismissal is warranted only if no recourse could be granted under any set of facts consistent with the allegations. Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "To survive a motion to dismiss under Rule 12(b)(6)," a plaintiff must allege sufficient facts to " ‘state a claim for relief that is plausible on its face.’ " Spierer v. Rossman , 798 F.3d 502, 510 (7th Cir. 2015) (citing Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). As this court has previously emphasized, the motion to dismiss phase of the proceedings "is not an opportunity for the court to find facts or weigh evidence." My Health, Inc. v. Gen. Elec. Co. , No. 15-CV-80-JDP, 2015 WL 9474293, at *2 (W.D. Wis. Dec. 28, 2015). The court must "tak[e] all factual allegations as true and draw[ ] all reasonable inferences in favor of the plaintiffs." Pugh v. Tribune Co. , 521 F.3d 686, 692 (7th Cir. 2008).

Defendant makes four arguments in support of its motion to dismiss: (1) federal law expressly preempts plaintiff's claims; (2) the Roundup label is not false or misleading as a matter of law; (3) the breach of express warranty claim fails because plaintiff failed to give proper notice; and (4) the unjust enrichment claim fails because plaintiff did not confer a benefit on defendant. Defendant also challenges plaintiff's request for certification of a national class under Federal Rules of Civil Procedure 23(a) and (b)(3).

I. Personal Jurisdiction

Because this is a court of limited jurisdiction, the court begins there. The complaint originally alleged violations of six different states' deceptive trade practices laws on behalf of six putative class representatives, including Blitz, a Wisconsinite, and five non-resident plaintiffs. (Compl. (dkt. # 1) ¶¶ 22-27.) However, in light of the Supreme Court's decision in Bristol-Myers Squibb v. Super. Ct. of California , ––– U.S. ––––, 137 S.Ct. 1773, 1780, 198 L.Ed.2d 395 (2017), the five non-resident plaintiffs were dismissed voluntarily. (See dkt. # 43.) Having rendered moot defendant's argument that the court lacks personal jurisdiction over the claims of the five non-Wisconsin plaintiffs, two jurisdictional questions remain: (1) whether the court has personal jurisdiction over the claims asserted by Blitz; and (2) whether the court has personal jurisdiction over a nationwide class action.

As to named-plaintiff Blitz's claims, this court clearly has personal jurisdiction. Blitz is a Wisconsin resident. (Compl. (dkt. # 1) ¶ 22.) He purchased Roundup from a Home Depot store in Wisconsin. (Id. ) Because that transaction creates an "affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State," Bristol-Myers Squibb , 137 S.Ct. at 1781 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ), this court may exercise specific personal jurisdiction over Blitz's claims against Monsanto. Indeed, defendant does not contest that the court has personal jurisdiction over Blitz's claims against it. (Mot. to Dismiss Br. (dkt. # 12) 9.)

As to plaintiff's apparent desire to have certified a nationwide class of persons who purchased Roundup under Rules 23(a) and 23(b)(3) of the Federal Rules (Compl. (dkt. # 1) 31), defendant argues that this court may not exercise specific personal jurisdiction over the claims of non-resident plaintiffs under Bristol-Myers Squibb , including as members of a putative nationwide class. (Reply (dkt. # 41) 7.) However, Bristol-Myers Squibb concerned the power of a state court to exercise specific personal jurisdiction over non-resident class members, expressly leaving open the question "whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court." Bristol-Myers Squibb , 137 S.Ct. at 1784 (emphasis added). Because this question need not be decided now, and the court would no doubt benefit from greater factual and legal briefing before resolving, the court will also reserve judgment on the question of whether it can exercise personal jurisdiction over the claims of a nationwide class, at this time.⁴

II. Preemption

Defendant also argues that plaintiff's claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq. , because the EPA registered glyphosate and approved the Roundup label. (Mot. to Dismiss Br. (dkt. # 12) 27-30.) Under FIFRA, all pesticides must be registered with the EPA before sale or distribution. 7 U.S.C. § 136a(a). The EPA then registers a pesticide if its labeling complies with FIFRA's requirements, 7 U.S.C. § 136a(c)(5)(B), meaning that the EPA will not register a "misbranded" pesticide. 7 U.S.C. § 136(q)(1)(A). A pesticide is "misbranded" if "its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular." Id. Finally, registration constitutes prima facie evidence that the pesticide's labeling complies with FIFRA's requirements, but registration may not serve as a defense to any FIFRA violation. 7 U.S.C. § 136a(f)(2).

FIFRA also includes an express preemption statement, which reads:

(a) In general

A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

(b) Uniformity

Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.

7 U.S.C. § 136v(a) - (b).

The United States Supreme Court has devised a two-part test to determine whether FIFRA preempts a state rule: "First, it must be a requirement ‘for labeling or packaging’; rules governing the design of a product, for example, are not preempted. Second, it must impose a labeling or packaging requirement that is ‘in addition to or different from those required under this subchapter.’ " Bates v. Dow Agrosciences LLC , 544 U.S. 431, 444, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (emphasis in original); see also 7 U.S.C. § 136v(b). Thus, if a state-law requirement is equivalent to that under FIFRA, the state law survives preemption. Bates , 544 U.S. at 453, 125 S.Ct. 1788. Even where the state-law requirement imposes a broader obligation than a FIFRA requirement, the state law is preempted only "to the extent of that difference." Id. Moreover, the state-law...