Blitz v. Monsanto Co.
Blitz v. Monsanto Co.
Opinion of the Court
WILLIAM M. CONLEY, District Judge *1046Plaintiff 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.
FACTS
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.
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 *1047Fed. 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 ,
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. ----,
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 ,
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 *1048members, 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 ,
II. Preemption
Defendant also argues that plaintiff's claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"),
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 ,
In light of the Bates test, district courts presiding over similar cases involving Roundup have reached a consensus that FIFRA preempts any injunctive relief, which would necessarily impose a labeling requirement "in addition to or different from" that under FIFRA, but that FIFRA does not preempt claims for damages under state law. See, e.g., Carias v. Monsanto Co. , No. 15CV3677JMAGRB,
Applying the reasoning in these cases, defendant argues first that plaintiff's state-law cause of action necessarily imposes requirements "in addition to or different from" FIFRA's requirements. (Mot. to Dismiss Br. (dkt. # 12) 27-30.) Specifically, under the Wisconsin Deceptive Trade Practices Act ("WDTPA"):
No ... corporation ... with intent to sell, distribute, increase the consumption of ... any merchandise ... or with intent to induce the public in any manner to ... purchase ... merchandise ... shall make, publish, disseminate, circulate, or place before the public ... [a] label ... which is untrue, deceptive or misleading.
Defendant next insists that what plaintiff is really seeking is injunctive relief in the form of a label change. In this respect, defendant argues that Mirzaie is controlling, since the Mirzaie court dismissed the entire complaint with prejudice after concluding that the plaintiffs sought "to impose a labeling requirement different or in *1050addition to that required under FIFRA."
Defendant next argues that the distinction between injunctive and other kinds of relief is irrelevant to FIFRA preemption because "Monsanto's only options are to change its label or else continue to face legal action," if plaintiff is successful. (Reply (dkt. # 41) 12 n.4 (emphasis omitted).) As a practical matter, this argument has some force except that the Supreme Court foreclosed this line of argument in Bates :
The prohibitions in § 136v(b) apply only to "requirements." An occurrence that merely motivates an optional decision does not qualify as a requirement. The Court of Appeals was therefore quite wrong when it assumed that any event, such as a jury verdict, that might "induce" a pesticide manufacturer to change its label should be viewed as a requirement.
Finally, to the extent that defendant is arguing that the EPA's registration of glyphosate and approval of the Roundup label carry any preemptive force, defendant is simply mistaken. Again, while registration of a pesticide constitutes prima facie evidence that the pesticide's labeling complies with FIFRA, registration may not serve as a defense to a FIFRA violation. 7 U.S.C. § 136a(f)(2). Similarly, there is no "indication that the EPA's approval of Roundup's label ha[s] the force of law." Hardeman ,
III. Untrue, Deceptive or Misleading Representations
Defendant argues that plaintiff's claim that defendant violated Wisconsin's Deceptive *1051Trade Practices Act must be dismissed because the challenged statement on the label is not false or misleading as a matter of law. (Mot. to Dismiss Br. (dkt. # 12) 22-27.) First, defendant argues that plaintiff cannot plead literal falsity unless supported by unanimous expert opinion. (Id. at 24.) Second, defendant argues that plaintiff's allegation that the statement is false precludes an allegation that the statement is deceptive or misleading. (Id. at 24-27.) For the reasons below, the court rejects both arguments.
A. Literal Falsity
The Roundup label includes the following statement: "Glyphosate targets an enzyme found in plants but not in people or pets." (See Compl. (dkt. # 1) ¶ 34.) Defendant argues this statement on the Roundup label is not literally false as a matter of law. (Mot. to Dismiss Br. (dkt. # 12) 24.) For plaintiff to maintain a claim of literal falsity, defendant asserts that this claim must be supported by unanimous expert opinion, citing In re GNC Corp. ,
However, In re GNC is at least arguably distinguishable. The scientific claims at issue in that case revolved around the "clinical effectiveness" of two ingredients. By contrast, plaintiff's allegation that EPSP is found in gut bacteria present in human bodies is seemingly more of a binary proposition: either the enzyme is found in gut bacteria present in humans or it is not. Specifically, defendant emphasizes that the "currently accepted dogma is that glyphosate i[s] not harmful to humans or to any mammals because the shikimate pathway is absent in all animals." (Mot. to Dismiss Br. (dkt. # 12) 24.) However, plaintiff does not allege physical harm as a result of the alleged misrepresentation, but rather pecuniary loss. (Compl. (dkt. # 1) ¶ 75.) At this point, the GNC standard would also seem inapplicable because even defendant has not suggested that the scientific community is equivocal as to the presence of EPSP in human and other mammalian gut bacteria, which (as discussed already) is a separate inquiry from whether human and other mammalian cells contain EPSP. Regardless, for the purposes of evaluating defendant's motion to dismiss, the court must accept as true plaintiff's allegation that EPSP is present in gut bacteria found in human bodies, making the challenged statement on the Roundup label "literally false."
Defendant nevertheless insists that "it is almost universally accepted by regulators and the scientific community, both within and outside the United States, that glyphosate targets an enzyme ('EPSP synthase') not found in human or animal cells -- just as the statement on Roundup®'s labels describes." (Mot. to Dismiss Br. (dkt. # 12) 10.) Again, however, the Roundup label says nothing about cells, only that EPSP is "found in plants but not in people or pets." (Id. at 12.) Although defendant may ultimately prevail on its essential argument that the distinction is not material, on the limited record currently before the court, a *1052reasonable consumer could take this statement to mean that EPSP is not found in people, rather than to mean that EPSP is simply not found in human cells, as opposed to bacteria present in the human gut. Similarly, as defendant notes, the Roundup label says nothing about "gut bacteria." (Id. at 11.) As defendant sees it, "it is entirely unreasonable for anyone to be thinking about gut bacteria when reading" the Roundup label, but on this limited record, it is unclear why that is so. Indeed, at least on its face, many consumers might well think gut bacteria are located in people. Under that view, the Roundup label would again be literally false. Regardless, the court is not prepared to hold otherwise at the pleading stage of this lawsuit.
B. Deceptive or Misleading Representations
Defendant additionally argues that plaintiff has not sufficiently pleaded facts to support a claim that the Roundup label is deceptive or misleading under
A claim under
Notably, the statute is disjunctive, prohibiting "untrue, deceptive or misleading" representations.
Finally, "reasonable reliance is not an element of a statutory false representation claim." Novell ,
According to defendant, plaintiff must "plead facts showing that the Roundup[ ] consumer actually believes that glyphosate 'targets' an enzyme in 'gut bacteria.' " (Mot. to Dismiss Br. (dkt. # 12) 25.) This does not, however, properly set forth the appropriate pleading standard. Rather, the plaintiff must plead facts that satisfy the three elements set forth in Novell ,
The court disagrees with defendant's assertion that plaintiff can pursue only a literal falsity claim because he has not claimed the Roundup label was true but misleading (Reply (dkt. # 41) 11), because Wisconsin law does not require plaintiffs make such distinctions when alleging violations of
Finally, contrary to defendant's assertions, plaintiff need not plead reasonable reliance on the representation under the WDTPA. (See Mot. to Dismiss Br. (dkt. # 12) 25 ("Indeed, the Complaint does not plead that a reasonable consumer ... would believe [the label] is talking about 'gut bacteria.' or would have any expectations, assumptions, or misconceptions about 'gut bacteria' based on that statement.").) Instead, the factfinder may consider whether plaintiff's reliance was reasonable when making the factual determination of whether plaintiff was induced to purchase Roundup. Put another way, the court cannot determine as a matter of law that "a misrepresentation did not cause pecuniary loss" at the pleading stage. Novell ,
IV. Breach of Express Warranty
Defendant next argues that plaintiff's breach of express warranty claim must be dismissed because plaintiff failed to provide notice of breach. (Mot. to Dismiss Br. (dkt. # 12) 32-33.) Under Wisconsin's version of the Uniform Commercial Code ("UCC"), a buyer "must within a reasonable time after the buyer discovers or should have discovered any breach notify the seller of breach or be barred from any remedy."
(1) Subject to sub. (6), a person has "notice" of a fact if the person satisfies any of the following:
(a) Has actual knowledge of it.
(b) Has received a notice or notification of it.
(c) From all the facts and circumstances known to the person at the time in question, has reason to know that it exists.
Notice serves two purposes: first, notice informs the seller of a defect in the good and gives the seller an opportunity to remedy the defect. Wilson v. Tuxen ,
Finally, the notice requirement is individualized. See
Regardless, Blitz does not allege that he provided individual notice to defendant. (See Compl. (dkt. # 1) ¶ 22; id. ¶¶ 7-79.) Indeed, the complaint alleges only that a former plaintiff, Chick -- whose claims have been voluntarily dismissed -- provided individual notice to defendant. (Compl. (dkt. # 1) ¶ 97.) Moreover, rather than demonstrate how he provided actual notice under Wisconsin's UCC, plaintiff addresses the timeliness requirement. In fairness, whether the buyer provided notice "within a reasonable time" is a question of fact for a jury to decide, Tuxen ,
V. Unjust Enrichment
Finally, defendant argues that plaintiff's unjust enrichment claim fails because plaintiff purchased Roundup from a retailer and not directly from defendant. (See Compl. (dkt. # 1) ¶ 22.) Under Wisconsin law, unjust enrichment claims require proof of three elements: "(1) a benefit conferred on the defendant by the plaintiff; (2) appreciation or knowledge by the defendant of the benefit; and (3) acceptance or retention of the benefit by the defendant under circumstances making it inequitable to do so." Sands v. Menard ,
Certainly, Sands and Emirat would strongly suggest plaintiff's allegation that he purchased Roundup from Home Depot is insufficient to plead a claim of unjust enrichment against defendant, since plaintiff conferred a benefit on Home Depot, not defendant. Furthermore, plaintiff's bald assertion that "[d]efendant[ has] been unjustly enriched through sales of Roundup Products at the expense of Plaintiffs and the National Class Members" (Compl. (dkt. # 1) 31) is insufficient under Ashcroft v. Iqbal ,
ORDER
IT IS ORDERED that defendant's motion to dismiss (dkt. # 10) is GRANTED IN PART AND DENIED IN PART as set forth above.
In resolving a motion to dismiss under Rule 12(b)(6), the court takes all of the factual allegations in the complaint as true and draws all inferences in plaintiff's favor. Killingsworth v. HSBC Bank Nev. ,
Plaintiff purports in referring to "Roundup" to include any and all products sold by Monsanto under that trademark.
The shikimate pathway is a multi-step chemical pathway that creates amino acids that plants need to live. (Mot. to Dismiss Br. (dkt. # 12) 13.) By disrupting this pathway, glyphosate kills plants. (Compl. (dkt. # 1) ¶ 29.)
The court recognizes that delaying a determination of this question of personal jurisdiction may delay a determination of the amount in controversy under CAFA. See
For example, the court addresses below the obvious objection by defendant that imposition of monetary damages or sanctions for labeling could be viewed as the equivalent of a "requirement." Similarly, while under FIFRA, only the EPA may order a label change, to the extent that any of these decisions imply that other types of relief are necessarily preempted by FIFRA, the court disagrees. For example, "[p]rivate remedies that enforce federal misbranding requirements would seem to aid, rather than hinder, the functioning of FIFRA." Bates ,
The other cases defendant offers in support of this preemption argument are also inapposite. See Wilgus v. Hartz Mountain Corp. , No. 3:12-CV-86,
Because the WDTPA prohibits only affirmative assertions, representations or statements, the court does not consider any of plaintiff's references to "material omissions." (See, e.g. , Compl. (dkt. # 1) ¶¶ 45-46.)
Again, defendant cites only to In re GNC , which relied on Lanham Act precedent to construe the state laws at issue. In re GNC Corp. ,
Similarly, the argument that filing a previous proposed class action in federal court in another jurisdiction provides requisite notice is a "dubious legal theory." See Porcell v. Lincoln Wood Prod., Inc. ,
Plaintiff cites to cases from New Jersey and Illinois detailing exceptions to the notice requirement, but those exceptions are unavailable to plaintiff because they are not recognized in Wisconsin's UCC. For example, plaintiff looks to Strzakowlski v. Gen. Motors Corp. , No. CIV.A. 04-4740,
Reference
- Full Case Name
- Thomas BLITZ v. MONSANTO COMPANY
- Cited By
- 17 cases
- Status
- Published