Wojtalewicz v. Pioneer Hi-Bred Int'l, Inc.
| Decision Date | 09 July 2012 |
| Docket Number | No. 8:12CV76.,8:12CV76. |
| Citation | 939 F.Supp.2d 965 |
| Parties | Todd WOJTALEWICZ, husband and wife; and Kendra Wojtalewicz, husband and wife, Plaintiffs, v. PIONEER HI–BRED INTERNATIONAL, INC., an Iowa corporation, Defendant. |
| Court | U.S. District Court — District of Nebraska |
OPINION TEXT STARTS HERE
David A. Domina, Jason B. Bottlinger, Domina Law Firm, Omaha, NE, for Plaintiffs.
Carolyn A. Gunkel, Jacob D. Bylund, Ross W. Johnson, Faegre, Baker Law Firm, Des Moines, IA, for Defendant.
The defendant has filed a Motion to Stay and Compel Arbitration, (filing no. 10), and a Motion to Stay Discovery and Scheduling Activities, (filing no. 12). The plaintiffs oppose both motions. The motions are fully briefed and submitted. As explained below, the defendants' motions will be granted in part as set forth in this memorandum and order.
Both parties have submitted evidence in support of their motions. The following evidence is uncontroverted.
Todd and Kendra Wojtalewicz, husband and wife, have filed suit on behalf of themselves and as assignees of the claims of their sons, Trey and Cole Wojtalewicz. Todd, Cole, and Trey Wojtalewicz farm in the Howard County, Nebraska area. The plaintiffs are also suing as the assignees of claims for crop-share landlords, Gerald Wojtalewicz and Quarfing Pleasant View Farm, LLC. Filing No. 1–2, at CM/ECF p. 1, ¶ 1; p. 4, ¶ 8; and pp. 7–9, footnotes 15–19; Filing No. 15–1 (Todd Wojtalewicz declaration), at CM/ECF p. 1, ¶ 2, pp. 4–5, footnotes 4–8. The plaintiffs claim that due to a defect in the seed corn purchased from Pioneer Hi–Bred International, Inc. (“Pioneer”), their 2011 corn crop, and the crop of their assignors, suffered from brittle snap which resulted in crop failure. The plaintiffs seek damages. Complaint ¶¶ 3, 23, 30, 35.
Plaintiff Todd Wojtalewicz has been a Pioneer customer for over 20 years and was a Pioneer Sales Representative from 1992 through August 31, 2011. Filing No. 10–2, Brax Affidavit, at CM/ECF pp. 2–3. In 2011, Todd Wojtalewicz sold Pioneer products to over 60 customers, including nearly 3,900 bags of Pioneer seed corn. The corn sold by Todd Wojtalewicz was delivered to him on shrink-wrapped pallets. Todd Wojtalewicz would then either deliver the seed corn to his customers, or warehouse it for them until the customer picked it up. Filing No. 10–2, Brax Affidavit, at CM/ECF p. 3, ¶¶ 12, 14; Filing No. 15–1, (Todd Wojtalewicz declaration), at CM/ECF p. 9, ¶ 24.
In addition to the corn he sold for Pioneer, for the 2011 growing season, Todd Wojtalewicz purchased for his own use, 392 bags of Pioneer seed corn and 50 units in a Pioneer PROBOX, for a total of 442 units of Pioneer seed. Filing No. 10–2, Brax Affidavit, at CM/ECF p. 3, ¶¶ 12, 14.
Prior to the planting season, Pioneer sends each of its customers a “terms and conditions sheet” which outlines the provisions applicable to the purchase of Pioneer products, including seed corn, for the upcoming growing season. Filing No. 10–2, Brax Affidavit, at CM/ECF p. 3; Filing No. 10–3. The terms and conditions sheet states that “by entering into a purchase transaction with Pioneer,” the buyer “acknowledge[s] a clear understanding and agree[s]” to the purchase terms, including his or her “obligations, restrictions and rights of use as stated fully in these terms and conditions....” Filing No. 10–3, (Terms & Conditions Sheet), at CM/ECF pp. 4–5.
The terms and conditions sheet sent to Todd Wojtalewicz prior to the 2011 growing season stated:
Under the seed laws of several states ARBITRATION, CONCILIATION or MEDIATION is required as a prerequisite to maintaining a legal action based upon the failure of seed to which this notice is attached to produce as represented. The purchaser shall file a complaint (sworn for some states: signed for some states) along with the required filing fee (where applicable) with the Commissioner/Director/Secretary of Agriculture. Seed Commissioner, or Chief Agricultural Officer within such time as to permit Inspection of the crops, plants or trees by the designated agency and the seedsmen from whom the seed was purchased. A copy of the complaint shall be sent to the seller by certified or registered mail or as otherwise provided by state statute. PLEASE CONSULT PURCHASER'S STATE DEPARTMENT OF AGRICULTURE FOR SPECIFIC REQUIREMENTS BEFORE ANY LEGAL ACTION IS INITIATED. Failure to follow this procedure could limit Purchaser's legal rights, including the remedy recoverable, depending on the law of Purchaser's state.
NOTICE OF BINDING ARBITRATION: In addition to the mandatory arbitration required by several states, Purchaser and Pioneer agree that any claim or civil action of any nature arising out of or relating to the performance or quality of this product shall be submitted to binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The place of arbitration shall be Des Moines, Iowa, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Disputes concerning or related to the use restrictions and limited licenses associated with this product, or concerning or related to intellectual property rights of Pioneer in or related to this product, or claims or causes of action brought by Pioneer against the Purchaser for failure to pay for this product, are not subject to this NOTICE OF BINDING ARBITRATION.
Filing No. 10–3, (Terms & Conditions Sheet), at CM/ECF pp. 4–5.
Since 2006, the arbitration clause above was also located on the back of all Pioneer seed corn bags under a bold-print heading:
NOTICE ARBITRATION/CONCILIATION/MEDIATION REQUIRED BY SEVERAL STATES
Filing no. 10–2, Brax Affidavit, at CM/ECF p. 4, ¶¶ 15–16; Filing No. 10–5, p. 2.
The arbitration clause recited above was present on the bags of seed corn purchased and used by Todd Wojtalewicz for the 2011 growing season. The invoice Todd, Trey, and Cole Wojtalewicz received from Pioneer for the purchase of seed corn stated:
By the purchasing of the products listed on this invoice, you hereby consent to the jurisdiction of the state or federal courts in Polk County, Iowa in the event of litigation concerning this purchase. If binding arbitration is required (see bag), the place of the arbitration will be Des Moines, Iowa.
Filing No. 10–2, Brax Affidavit, at CM/ECF p. 3, ¶¶ 11–13; Filing No. 10–4, at CM/ECF p. 3; Filing No. 19–1, at CM/ECF p. 2; Filing No. 19–2, at CM/ECF p. 2.
The plaintiffs do not deny receiving the Pioneer terms and conditions sheet prior to the 2011 planting season. They state, however, that they were not aware of any arbitration clause and did not agree, in writing or otherwise, to arbitrate any claims with Pioneer. Filing No. 15–1 (Todd Wojtalewicz declaration), at CM/ECF p. 9, ¶¶ 16, 19; Filing No. 15–2 (Kendra Wojtalewicz declaration); Filing No. 15–3 (Trey Wojtalewicz declaration); Filing No. 15–4 (Cole Wojtalewicz declaration). Todd Wojtalewicz states that despite his 20 years of selling seed corn for Pioneer, including the corn at issue in this case, he was never trained or told that claims against Pioneer were subject to arbitration, and he was never aware of the arbitration clause written on the seed corn bag. Filing No. 15–1 (Todd Wojtalewicz declaration), at CM/ECF p. 9, ¶ 21.
Todd Wojtalewicz ordered the 2011 seed corn by either telephone or written order form.1 He does not recall signing any document containing an arbitration clause. Filing No. 15–1 (Todd Wojtalewicz declaration), at CM/ECF p. 10, ¶ 23. Todd Wojtalewicz claims that even had he seen the arbitration clause on the seed corn bag, by the time the corn actually arrived at his fields in 2011, it was too late to object to the clause or replace the seed because planting was in progress and time was of the essence. Filing No. 15–1 (Todd Wojtalewicz declaration), at CM/ECF p. 9, ¶ 23; p. 11, ¶ 32. “It is not realistic to expect that any farmer can, nor is any farmer willing, to halt planting operations during the narrow period of time when planting can be accomplished—often a time period of only a few days—in order to negotiate with Pioneer about surprise terms and conditions it tries to impose by printing them on its bag.” Filing No. 15–1 (Todd Wojtalewicz declaration), at CM/ECF p. 11, ¶ 31.
Pioneer terminated Todd Wojtalewicz as one of its sales representatives at the end of 2011 without providing an explanation. Filing No. 15–1 (Todd Wojtalewicz declaration), at CM/ECF p. 9, ¶ 20. Pioneer claims that following the termination, Todd Wojtalewicz failed to return any written documents to Pioneer as required under the Pioneer Sales Representative Agreement. Filing No. 19–3 (), at CM/ECF p. 1.
Todd Wojtalewicz' affidavit states, Filing No. 15–1 (Todd Wojtalewicz declaration), at CM/ECF p. 10, ¶ 26. There is no evidence of record indicating plaintiff Kendra Wojtalewicz, or assignors Gerald Wojtalewicz and Quarfing Pleasant View Farm, LLC purchased seed corn from the defendant. Todd, Trey, and Cole Wojtalewicz each received an invoice for seed corn purchased from Pioneer, but each invoice was sent to the same address, (Filing No. 10–4, at CM/ECF p. 2; Filing No. 19–1; Filing No. 19–2), and Trey Wojtalewicz' invoice identifies the operation name as “Wojtalewicz, Todd.”
The defendant has moved to compel arbitration under the Federal Arbitration Act, (“FAA”). See 9 U.S.C. § 2. The FAA states:
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an...
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