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Pesticides v. Monsanto Co.

United States District Court, District of Columbia

April 30, 2018

BEYOND PESTICIDES et al., Plaintiffs,
v.
MONSANTO CO. et al., Defendants.

          MEMORANDUM OPINION

          TIMOTHY J. KELLY United States District Judge

         On 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.

         I. Background

          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.

         On 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.

         In 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.

         On July 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.

         II. Legal Standard

         “A 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)).

         III. Analysis

         Monsanto 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 turn.

         A. Statute of Limitations

         The 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).

         “[T]he [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 ...


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