US v. Tuente Livestock, C-3-94-336.

Decision Date19 May 1995
Docket NumberNo. C-3-94-336.,C-3-94-336.
Citation888 F. Supp. 1416
CourtU.S. District Court — Southern District of West Virginia
PartiesUNITED STATES of America, Plaintiff, v. TUENTE LIVESTOCK, et al., Defendants.

Patrick Dennis Quinn, U.S. Attorney's Office, Dayton, OH, Douglas Ross, Brian N. Eisen, Robert F. Church, Office of Consumer Litigation, U.S. Dept. of Justice, Washington, DC, Margaret Jane Porter, Food and Drug Admin., Rockville, MD, Robert D. Okun, U.S. Dept. of Justice, Office of Consumer Litigation, Washington, DC, for plaintiff.

Robert John Styduhar, Vorys Sater Seymour & Pease, Columbus, OH, Victor A. Walton, Jr., Vorys, Sater, Seymour & Pease, Cincinnati, OH, for defendants.

DECISION AND ENTRY OVERRULING DEFENDANTS' MOTION TO DISMISS (DOC. # 5); DECISION AND ENTRY DECLARING MOOT DEFENDANTS' MOTIONS TO STRIKE CERTAIN DECLARATIONS PERTAINING TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DOCS. ## 12 AND 18)

RICE, District Judge.

The Defendants in this case, Tuente Livestock, Ronald W. Tuente, and Roger B. Tuente, buy hogs from farmers (producers) and sell them to slaughterhouses, which, in turn, slaughter and process the animals for ultimate consumption. The Defendants are accused by the United States Food and Drug Administration ("FDA") of delivering to the slaughterhouses swine whose edible tissues are tainted with illegal levels of residue of a certain animal drug known as sulfamethazine. The United States sues under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301, et seq. ("the FDCA" or "the Act")), specifically invoking 21 U.S.C. §§ 332(a) and 331(a), which, taken together, permit the Government to seek to enjoin "the introduction or delivery for introduction into interstate commerce of any food ... that is adulterated." (Text is that of § 331(a)). Herein, the United States seeks an injunction to prevent these Defendants from engaging in their business, unless and until they have taken certain actions to ensure the purity of their porkers. The Defendants now seek dismissal of the suit, arguing that live swine are not "food" within the meaning of the Act, and that their business (in which they might be described as "middlemen" between the farmers and the slaughterhouses) does not consist of the "introduction or delivery for introduction into interstate commerce" of their products. Doc. # 5.

For purposes of deciding Defendants' motion to dismiss under Rule 12(b)(6), the Court accepts as true all of the factual allegations in the Plaintiff's pleadings, and determines whether "it appears beyond doubt that the Plaintiff can prove no set of facts in support of its claim which would entitle it to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Unless the Court is satisfied that the United States can prove no set of facts entitling it to relief, the motion to dismiss will be denied.

In addition, the Court will note at the outset of this opinion that, in considering the Rule 12(b)(6) motion to dismiss, the Court has not considered matters outside the pleadings. The parties will note that extensive reference to legislative history (including congressional hearing testimony) is made in this Opinion. In the opinion of the Court, such reference does not constitute consideration of materials outside the pleadings, for the following reasons. First, such materials are not the types of materials noted in Rule 56(c) (such as affidavits and deposition testimony) that may only be considered in the context of a motion for summary judgment. Second, it is in the natural course of determining whether a statutory claim for relief is competently stated to examine the statutory language, its context, and its history. To hold otherwise would be to render Rule 12(b)(6) meaningless in the multitude of cases wherein statutory language does not, on its face, provide a rule of decision without reference to its context and legislative history. Third, and, perhaps, most importantly, courts routinely consider legislative history — including congressional committee hearings and reports — in deciding motions to dismiss wherein consideration is limited to matters not outside the pleadings. See, e.g., Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536-541, 104 S.Ct. 831, 838-841, 78 L.Ed.2d 645 (1984) (legislative history of § 36(b) of the Investment Company Act of 1940 examined to determine propriety of dismissal of derivative suit, for failure to plead in accordance with "demand requirement" of Rule 23.1); National Ass'n of Pharmaceutical Manufacturers v. Food and Drug Administration, 637 F.2d 877, 882-888 (2nd Cir.1981) (Friendly, J.) (very extensive discussion of legislative history of FDCA provision (unrelated to this litigation) in affirming Rule 12(b)(6) dismissal).

The facts, taken as true as they are stated in the Complaint, are these. The Defendants purchase live hogs from producers and sell those hogs (still breathing) to slaughterhouses. When the hogs reach the slaughterhouses, they are slaughtered and their edible tissues are shipped in interstate commerce. Between July, 1992, and December, 1993, the United States Department of Agriculture (USDA) found, subsequent to slaughter, that the edible tissues of at least nine hogs supplied by the Defendants contained residues of the animal drug sulfamethazine in excess of the legal limit (0.1 ppm).

In 1987, the United States Food and Drug Administration (FDA) had notified the Defendants that swine that they had sold for slaughter had tested above the legal limit for drug residues, that the FDA considered the Defendants to have introduced adulterated food into interstate commerce, and that the Defendants should implement strategies to ensure that the hogs that they purchased from producers did not contain illegal drug residues. The FDA observed the lack of such procedures to ensure that the hogs are not tainted by above-tolerance drug residues, when inspecting the Defendants' livestock operations in September 1987. In October, 1987, Defendant Ronald Tuente provided a written response to the FDA's notice. On January 9, 1988, the FDA replied to Defendants, in writing, that their response was insufficient, and that they should obtain signed guaranties from the producers from whom they purchased, which guaranties would ensure that the swine purchased by the Defendants from said producers (for subsequent sale to slaughterhouses) would be free from above-tolerance drug residues. In subsequent inspections of the Defendants' operations (which occurred in September, 1992, September, 1993, and December, 1993), the FDA never found the Defendants to have obtained such guaranties.

After each of the above referenced inspections, the FDA also notified the Defendants that, in the opinion of the FDA, their failure to implement an adequate identification system, which would permit identification of the producers of any swine found to have above-tolerance residue, rendered them liable for the introduction of adulterated food into interstate commerce, when swine whose producer could not be identified tested above-tolerance.

Aside from the FDA notices concerning the need for guaranties and an effective system for identification of producers, the Defendants also received notification from the USDA on at least twelve occasions between November, 1988, and December, 1993, that the edible tissues of swine that they offered for slaughter were found to have above-tolerance sulfamethazine residues.

There is absolutely no allegation that the Defendants, themselves, introduce sulfamethazine into the hogs. Rather, the allegations are that the Defendants purchase swine from producers without obtaining guaranties that the producers have taken the appropriate measures to ensure that the edible tissues of the swine are not contaminated (i.e., that the swine have not been given the drug for the appropriate withdrawal period), and, additionally, that the Defendants do not appropriately mark the swine that they purchase to enable the identification of producers of hogs that are found (in testing after slaughter) to contain illegal residues.

As noted above, the Defendants make two arguments in support of their motion to dismiss: 1) live swine aren't "food," and 2) the Defendants do not engage in "the introduction or delivery for introduction into interstate commerce" of the hogs that they purchase from producers and sell to slaughterhouses. It should be noted at the outset that it is not disputed that post-slaughter pork that contains above-tolerance levels of sulfamethazine is adulterated within the meaning of § 331(a).

I. Are Live Swine "Food?"

The Act, with brazen circularity, defines "food" as:

(1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.

21 U.S.C. § 321(f). Thus, within the meaning of the Act, food is food. Food is also drink, chewing gum, and components of food, drink, and chewing gum; but, primarily, and in the portion of the definition relevant to this case, food is food. Nothing in the language of statute itself explicitly indicates that live animals raised for slaughter and consumption (such as the hogs in question in this case) either are or are not food (or "articles used for food") within the meaning of the statute.

Only one published1 case, relied upon by the Government, deals directly with the question whether live animals are food within the meaning of the Act. In United States v. Tomahara Enterprises, Ltd., Food Drug Cosm.L.Rep. (CCH) ¶ 38,217 (N.D.N.Y. March 29, 1983), the court determined that live veal calves raised for food were food within the meaning of the statute. Unfortunately, that case is utterly without persuasive value because the court simply decided to take "judicial notice" that the live animals were food within the meaning of the Act. In the opinion of this Court, judicial notice is not an appropriate method for resolution of this disputed...

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4 cases
  • U.S. v. Ballistrea, 56
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 25, 1996
    ...owner for conspiracy to distribute adulterated drugs in violation of 21 U.S.C. § 331 and 18 U.S.C. § 371); United States v. Tuente Livestock, 888 F.Supp. 1416, 1427 (S.D.Ohio 1995) ("Congress has directly indicated that a party who has purchased an adulterated article from another party and......
  • United States v. Dairy
    • United States
    • U.S. District Court — Western District of Michigan
    • September 1, 2011
    ...2. Animals intended for slaughter have been held to constitute food within the meaning of the Act. See United States v. Tuente Livestock, 888 F. Supp. 1416, 1424 (S.D. Ohio 1995) (holding that live hogs raised for food and intended to be offered for slaughter are "food" as used in § 331(a))......
  • United States v. McConnell, Case No. 2:14CR00001
    • United States
    • U.S. District Court — Western District of Virginia
    • August 3, 2015
    ...the interstate commerce transaction includes the purchase as well as the transportation." Id.; see also United States v. Tuente Livestock, 888 F. Supp. 1416, 1427 (S.D. Ohio 1995) (stating that "Congress has directly indicated that a party who has purchased an adulterated article from anoth......
  • Tremblay v. Riley
    • United States
    • U.S. District Court — Western District of New York
    • March 6, 1996
    ...1305, 1312 (4th Cir.1995), petition for cert. filed, 64 U.S.L.W. 3333 (U.S. Oct. 27, 1995) (No. 95-685); United States v. Tuente Livestock, 888 F.Supp. 1416, 1418 (S.D.Ohio 1995) (citing National Ass'n of Pharmaceutical Mfrs. v. FDA, 637 F.2d 877, 882-88 (2d ...
4 books & journal articles
  • Table of Cases
    • United States
    • ABA Antitrust Library State Action Practice Manual. Third Edition
    • December 9, 2017
    ...v. Stewart, 433 F.3d 273 (2d Cir. 2006), 200 United States v. Taylor, 18 F.3d 55 (2d Cir. 1994), 201 United States v. Tuente Livestock, 888 F. Supp. 1416 (S.D. Ohio 1995), 157 U.S. Metroline Servs. v. Sw. Bell Tel. Co., 505 U.S. 1201 (1992), 166 V VIBO Corp. v. Conway, 594 F. Supp. 2d 758 (......
  • Pleadings and Procedural Issues
    • United States
    • ABA Antitrust Library State Action Practice Manual. Third Edition
    • December 9, 2017
    ...167669, at *24-25 (S.D. Cal. 2015); Tremblay v. Riley, 917 F. Supp. 195, 199 n.2 (W.D.N.Y. 1996); United States v. Tuente Livestock, 888 F. Supp. 1416, 1418 (S.D. Ohio 1995); see also Parker v. Brown, 317 U.S. 341, 351 (1943) (examining the legislative history of the Sherman Act). 36. See, ......
  • Chapter VII. Pleadings and Procedural Issues
    • United States
    • ABA Archive Editions Library State Action Practice Manual. Second Edition
    • January 1, 2010
    ...n.2 (3d Cir. 1994)). 30. See, e.g. , Tremblay v. Riley, 917 F. Supp. 195, 199 n.2 (W.D.N.Y. 1996); United States v. Tuente Livestock, 888 F. Supp. 1416, 1418 (S.D. Ohio 1995); see also Parker v. Brown, 317 U.S. 341, 351 (1943) (examining the legislative history of the Sherman Act). 31. See,......
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    • United States
    • ABA Archive Editions Library State Action Practice Manual. Second Edition
    • January 1, 2010
    ...v. Taylor, 18 F.3d 55 (2d Cir. 1994), 172 United States v. Topco Assocs., 405 U.S. 596 (1972), 45 United States v. Tuente Livestock, 888 F. Supp. 1416 (S.D. Ohio 1995), 134 U.S. Metroline Servs. v. Sw. Bell Tel. Co., 505 U.S. 1201 (1992), 141 192 State Action Practice Manual V VIBO Corp. v.......

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