United States District Court, District of Columbia
TIMOTHY J. KELLY United States District Judge
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.
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.
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.
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.
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.
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 (2009)).
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
Statute of Limitations
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 plaintiffs 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).
[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 ...