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`Case 3:16-md-02741-VC Document 11880 Filed 10/01/20 Page 1 of 9
`
`Karen Barth Menzies (CA SBN 180234)
`GIBBS LAW GROUP LLP
`505 14th Street, Suite 1110
`Oakland, CA 94612
`Tel: (510) 350-9700
`Fax: (510) 350-9701
`kbm@classlawgroup.com
`Fletcher V. Trammell, Esq. (pro hac vice to be submitted)
`Melissa Binstock Ephron, Esq. (pro hac vice to be submitted)
`TRAMMELL, PC
`3262 Westheimer Rd., Ste. 423
`Houston, TX 77098
`Tel: (800) 405-1740
`Fax: (800) 532-0992
`fletch@trammellpc.com
`melissa@trammellpc.com
`Alexander G. Dwyer (pro hac vice to be submitted)
`Andrew F. Kirkendall (pro hac vice to be submitted)
`Erin M. Wood (pro hac vice to be submitted)
`KIRKENDALL DWYER LLP
`4343 Sigma Rd, Suite 200
`Dallas, TX 75244
`Tel: 214-271-4027
`Fax: 214-253-0629
`ad@kirkendalldwyer.com
`ak@kirkendalldwyer.com
`ewood@kirkendalldwyer.com
`Attorneys for Plaintiff
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
` IN RE: ROUNDUP PRODUCTS
` LIABILITY LITIGATION
`
`MDL No. 2741
`
` THIS DOCUMENT RELATES TO:
` Carson v. Monsanto Co., et al.,
` Case No. 3:20-cv-06238
`
`PLAINTIFF’S NOTICE OF MOTION
`AND MOTION TO REMAND ACTION
`TO STATE COURT; MEMORANDUM
`OF POINTS AND AUTHORITIES
`
`Hon. Vince Chhabria
`Date: November 5, 2020
`Time: 10:00 a.m.
`Courtroom: 4
`
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`NOTICE OF MOTION AND MOTION TO REMAND ACTION TO STATE COURT; MEMORANDUM OF
`POINTS AND AUTHORITIES
`
`

`

`Case 3:16-md-02741-VC Document 11880 Filed 10/01/20 Page 2 of 9
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`
`
`NOTICE OF MOTION
`PLEASE TAKE NOTICE that on November 5, 2020, at 10:00 AM, or as soon thereafter as
`counsel may be heard by the above-entitled Court, located at San Francisco Courthouse,
`Courtroom 4 – 17th Floor, 450 Golden Gate Avenue, San Francisco, CA 94102, in the courtroom
`of Judge Vince Chhabria, plaintiff will and hereby does move the Court for an Order remanding
`this action to the Superior Court of the State of California, County of San Francisco.
`This motion is brought on the following grounds: (1) that Defendants cannot meet their
`burden of demonstrating that diversity of citizenship exists under 28 U.S.C. § 1332, and (2)
`Defendants Wilbur-Ellis Co., LLC and Wilbur-Ellis Nutrition, LLC (formerly Wilbur-Ellis Feed,
`LLC) were not fraudulently joined so 28 U.S.C. 1441(b) prevents removal of this case. This
`motion is based on the attached Memorandum of Points and Authorities, the papers and pleadings
`on file herein, and upon such further evidence, oral or documentary, as may be presented at the
`hearing of this motion.
`
`Dated: October 1, 2020
`
`
`
`
`
`GIBBS LAW GROUP LLP
`
`By: /s/_ Karen Barth Menzies_____
`
`Karen Barth Menzies
`GIBBS LAW GROUP LLP
`505 14th Street, Suite 1110
`Oakland, CA 94612
`Tel: (510) 350-9700
`Fax: (510) 350-9701
`kbm@classlawgroup.com
`Attorneys for Plaintiff
`
`
`
`
`
`
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`NOTICE OF MOTION AND MOTION TO REMAND ACTION TO STATE COURT; MEMORANDUM OF
`POINTS AND AUTHORITIES
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`Case 3:16-md-02741-VC Document 11880 Filed 10/01/20 Page 3 of 9
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`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`Monsanto’s notice of removal is substantively improper, and this action must be remanded
`
`to state court. The case at bar involves a suit brought in California state court against Monsanto,
`Wilbur-Ellis Company, Wilbur-Ellis Feed, and DOES defendants for injuries sustained as a result
`of Plaintiff’s use and exposure to Monsanto’s Roundup products.
`Plaintiff, Gail Carson, is and has been a California resident for all appliable times relevant
`to this action. Both Wilbur-Ellis Company and Wilbur-Ellis Feed have their principal place of
`business in California, as Monsanto admits. As such, complete diversity is lacking, and federal
`jurisdiction is lacking in this case as a result.
`
`While admitting that complete diversity does not exist, Monsanto attempts to remove this
`case on the bases of fraudulent joinder. For the reasons stated herein, this argument is untenable
`and should be rejected in favor of immediate remand.
`
`FACTUAL BACKGROUND AND PROCEDRUAL HISTORY
`
`
`Gail Carson (“Plaintiff”) was exposed to Roundup from the late 2000s until 2018 when she
`applied the product to her yard at her California residence. On or about January 23, 2017, Plaintiff
`was diagnosed with non-Hodgkin lymphoma, proximately caused by her Roundup use and
`exposure. Suit was filed on Plaintiff’s behalf on August 10, 2020. Monsanto then filed a notice of
`removal on September 3, 2020.
`
`ARGUMENT
`
`SUBSTANTIVE REQUIREMENTS FOR REMOVAL ARE NOT SATISFIED.
`I.
`Monsanto agrees that complete diversity is lacking on the face of the complaint, clearly
`lending to Plaintiff’s argument that this case should be remanded.
`A federal court can exercise removal jurisdiction over a case only if it would have had
`jurisdiction over the case as originally brought by the plaintiff. Snow v. Ford Motor Co., 561 F.2d
`787, 789 (9th Cir.1977); see also 28 U.S.C. § 1441. Removal based on diversity jurisdiction
`pursuant to 28 U.S.C. § 1332 requires complete diversity of citizenship (i.e., all plaintiffs must be
`
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`NOTICE OF MOTION AND MOTION TO REMAND ACTION TO STATE COURT; MEMORANDUM OF
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`of different citizenship than all defendants). Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067
`(9th Cir.2001); see also 28 U.S.C. § 1332. Removal is not permitted where one of the defendants
`“is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b).
`Further, the Ninth Circuit has long held that it is the burden of the party seeking removal to
`establish federal jurisdiction, Holcomb v. Bingham Toyota, 871 F.2d 109, 110 (9th Cir.1989), and
`there is a “strong presumption against removal jurisdiction.” Abrego Abrego v. Dow Chem.
`Co., 443 F.3d 676, 685 (9th Cir.2006). In fact, removal jurisdiction should be strictly construed in
`favor of remand, Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005) (citing
`Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941)), and the law is clear that there
`must be no doubt that jurisdiction exists. If doubt exists, remand is required. Gaus v. Miles, Inc.,
`980 F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction must be rejected if there is any doubt as to
`the right of removal.”) (emphasis added). “Doubts as to removability must be resolved in favor of
`remanding the case to state court.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089,
`1090 (9th Cir. 2003).
`Regarding the case at bar, Monsanto agrees that the Wilbur-Ellis entities are citizens of the
`State of California. Monsanto Company’s Notice of Removal, ¶ 16. Plaintiff, also, is and has been
`a citizen of the State of California for all times appliable to this action. As such, on the face of the
`complaint, diversity jurisdiction is lacking, and Plaintiff’s case must be remanded to state court.
`
`II.
`
`THE WILBUR-ELLIS ENTITES ARE NOT FRADULENTLY JOINED.
`
`Faced with an obvious lack of diversity in this case, Monsanto seeks to employ the doctrine of
`fraudulent joinder to remove this case to federal court. This argument must fail.
`Fraudulent joinder constitutes an exception to the requirement of complete diversity. This
`doctrine holds that, where a non-diverse defendant has been “fraudulently joined,” the court
`disregards that defendant and recognizes complete diversity. Morris v. Princess Cruises, Inc., 236
`F.3d 1061, 1067 (9th Cir. 2000). However, fraudulent joinder only exists “[i]f the plaintiff fails to
`state a cause of action against a resident defendant, and the failure is obvious according to the
`settled rules of the state.” McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).
`
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`NOTICE OF MOTION AND MOTION TO REMAND ACTION TO STATE COURT; MEMORANDUM OF
`POINTS AND AUTHORITIES
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`

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`Case 3:16-md-02741-VC Document 11880 Filed 10/01/20 Page 5 of 9
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`Further, a defendant must show that the joinder was fraudulent by “clear and convincing
`evidence,” Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). In
`determining whether a defendant was joined fraudulently, a court must resolve “all disputed
`questions of fact and all ambiguities in the controlling state law in favor of the non-removing
`party.” Plute v. Roadway Package Sys., Inc., 141 F. Supp. 2d 1005, 1008 (N.D. Cal. 2001)
`(quoting Dodson v. Spiliada, 951 F.2d 40, 42-43 (5th Cir. 1992)).
`Indeed, the district court must remand if there is a “non-fanciful possibility” that the plaintiff
`can state a claim against the non-diverse defendant. See Vu v. Ortho–McNeill Pharm., Inc., 602
`F.Supp.2d 1151, 1154 (N.D. Cal. 2009) (citation omitted). The relevant inquiry is whether the
`plaintiff could state a claim against the non-diverse defendant on any legal theory. See Grancare,
`LLC v. Thrower by and through Mills, 889 F.3d 543, 548 (9th Cir. 2018).
`When determining if a non-diverse defendant has been fraudulently joined, the court may look
`beyond the pleadings and consider summary judgment-type evidence such as deposition testimony
`and affidavits. See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 265 (5th Cir. 1995)
`(“[F]raudulent joinder claims can be resolved by ‘piercing the pleadings’ and considering
`summary judgment-type evidence such as affidavits and deposition testimony.”). Thus, the
`defendant seeking removal is free to present as many facts as he wishes in order to show
`fraudulent joinder. Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998).
`
`Regarding the case at bar, Monsanto avers that “Wilbur-Ellis Company is (and has been) in
`the business of, among other things, distributing and selling certain pesticides and herbicides,
`including certain glyphosate-based herbicide products.” Hushbeck Declaration, ¶ 6.
`However, Monsanto also alleges that Wilbur-Ellis is involved in a limited market only, not
`distributing to outlets that sell to the general public. As such, the claim is that Wilbur-Ellis was not
`involved in the distribution chain that distributed Roundup to Plaintiff or to which Plaintiff was
`exposed and cannot be liable under a product liability theory as a result. As shown below,
`Monsanto’s argument is simply untenable. Wilbur-Ellis is a massive company with a massive
`reach, constantly touting itself as a leader in distribution, marketing itself as a solution for
`everyone, and engaging in Pac-Mac like consumption of other entities to make itself grow. Given
`
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`NOTICE OF MOTION AND MOTION TO REMAND ACTION TO STATE COURT; MEMORANDUM OF
`POINTS AND AUTHORITIES
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`Case 3:16-md-02741-VC Document 11880 Filed 10/01/20 Page 6 of 9
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`
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`this, Wilbur-Ellis was quite certainly involved in the distribution of Round that Plaintiff used or
`was exposed to, and the Court should resolve this question of fact in Plaintiff’s favor.
`A. WEBSITE CONTRADICTIONS
`First, the allegation that Wilbur-Ellis only distributes to a limited market contradicts
`statements found all over Wilbur-Ellis’ website. For example, Wilbur-Ellis boasts that it is a
`“global service leader”1 in precision agriculture technology and products. Wilbur-Ellis further
`touts that its companies are “leading international marketers and distributors” 2 of agricultural
`products, animal nutrients and specialty chemicals and ingredients, with “sales now over $3
`billion.”3 Wilbur-Ellis also states that its unique expertise allows for the “tailor[ing] of solutions to
`every crop, grower and field.”4 (emphasis added). Nowhere on its website does Wilbur-Ellis claim
`it caters to a limited market only. On the contrary, Wilbur-Ellis touts itself as being the “one-stop-
`shop that has every solution you need.”5 Given the breadth and depth of Wilbur-Ellis’ reach, this
`entity was quite certainly involved in the distribution chain that distributed Roundup to Plaintiff or
`to which Plaintiff was exposed. At the very least, this contradiction does raise a genuine question
`of fact regarding who Wilbur-Ellis distributes to. Thus, with the board and unlimited audience
`Wilbur-Ellis targets on its website, and the settled law that a district court must resolve all
`disputed questions of fact in the plaintiff’s favor, the Court should grant Plaintiff’s request to
`remand this case to state court.
`B. CONFLICTING STATEMENTS OF INTEREST
`Second, Wilbur-Ellis has filed numerous Statements of Information with the Secretary of
`State that reflect no limitations on who Wilbur-Ellis distributes to. For example, in its June 23,
`2015 statement, Wilbur-Ellis describes the type of business of the corporation as “trade.” See
`Exhibit A. The statement filed on June 19, 2012 describes the type of business of the corporation
`
`1 HISTORY IN THE MAKING, WILBUR-ELLIS (last visited Sept. 14, 2020), https://www.wilburellis.com/history/.
`2 WILBUR-ELLIS ACQUIRES NACHURS ALPINE SOLUTIONS®, PIONEER IN PRECISION AGRICULTURE,
`LEADING SPECIALTY CHEMICALS MANUFACTURER, WILBUR-ELLIS (last visited Sept. 9, 2020),
`https://www.wilburellis.com/wilbur-ellis-acquires-nachurs-alpine-solutions-pioneer-in-precision-agriculture-leading-
`specialty-chemicals-manufacturer/.
`
` Id.
`4 AGRIBUSINESS, WILBUR-ELLIS (last visited Sept. 9, 2020), https://ag.wilburellis.com/.
`5 About AGRIBUSINESS, WILBUR-ELLIS (last visited Sept. 9, 2020), https://ag.wilburellis.com/about/.
`6
`NOTICE OF MOTION AND MOTION TO REMAND ACTION TO STATE COURT; MEMORANDUM OF
`POINTS AND AUTHORITIES
`
` 3
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`Case 3:16-md-02741-VC Document 11880 Filed 10/01/20 Page 7 of 9
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`as “Distr–agricultural chemicals.” See Exhibit B. Neither statement limits Wilbur-Ellis’ market in
`any capacity to certain audiences only.
`These facts are comparable to those found in Vieira v. Mentor Worldwide, LLC, No.
`218CV06502ABPLAX, 2018 WL 4275998, at *3 (C.D. Cal. Sept. 7, 2018). In this case, the
`defendant Mentor Worldwise, LLC (“Mentor”) sought to remove based on the purported
`fraudulent joinder of NuSil, who, like the plaintiff, was a California resident. Id. Mentor claimed
`that NuSil was simply a holding company, submitting an affidavit from one of NuSil’s individual
`members that NuSil had not “developed, designed, manufactured, supplied, or distributed any
`products, including the silicone or silicone gel[ ] used to manufacture breast implants.” Id.
`However, the 2013 Statement of Information filed by the entity indicated that NuSil did
`manufacture silicone products, contradicting the affidavit testimony. Id. In the context of removal,
`given that the court must resolve fact disputes in the plaintiff’s favor, the court held that NuSil was
`involved in the manufacturing process and remanded the case back to state court. Id.
`Similarly, regarding the case at bar, as discussed above, the Statements of Interest filed by
`Wilbur-Ellis in no way limits its market. On the contrary, the Statements support the contention
`that this is a massive company with a massive reach. As such, this entity was quite certainly
`involved in the distribution chain that distributed Roundup to Plaintiff or to which Plaintiff was
`exposed. At the very least, this contradiction does raise a genuine question of fact regarding who
`Wilbur-Ellis distributes to. Again, since all disputed questions of fact and all ambiguities must be
`decided in favor of the non-removing party, the Court should find in Plaintiff’s favor and remand
`this case to state court.
`C. INSUFFICIENT EVIDENCE
`Third, the two-page affidavit submitted by Monsanto is simply insufficient evidence to
`determine who Wilbur-Ellis distributes to. The affidavit merely responds in the negative,
`providing no information whatsoever regarding who this entity distributes to. This is despite the
`fact that Monsanto had the opportunity to “pierce the pleadings” and submit evidence that one
`would typically see in the context of a summary judgment motion. Wilbur-Ellis has merged at
`least 16 times with other entities according to its filings with the Secretary of State, with the most
`
`7
`NOTICE OF MOTION AND MOTION TO REMAND ACTION TO STATE COURT; MEMORANDUM OF
`POINTS AND AUTHORITIES
`
`

`

`Case 3:16-md-02741-VC Document 11880 Filed 10/01/20 Page 8 of 9
`
`
`
`recent merges occurring in 20136 and 2009.7 Clearly, with this much corporate action, untangling
`the history, players, and activity of this entity, including who this entity distributes to, raises a
`triable issue. Given Wilbur-Ellis’ Pac-Man-like nature of consuming other entities, Wilbur-Ellis
`was quite certainly involved in the distribution chain that distributed Roundup to Plaintiff or to
`which Plaintiff was exposed. At the very least, this activity does raise a genuine question of fact
`regarding who Wilbur-Ellis distributes to. Since courts must resolve disputed questions of fact in
`the plaintiff’s favor, this Court must remand the case to state court.
`****
`Because of the conflicting website assertions and Statements of Information, the dearth of
`evidence submitted by Wilbur-Ellis, and the litany of mergers Wilbur-Ellis has undergone, it is
`clear that, not only is this a massive entity with a massive reach, but that who Wilbur-Ellis
`distributes to raises a disputed question of fact. As such, the Court should resolve this issue in
`Plaintiff’s favor and should remand the case to state court.
`
`III. DOES DEFENDANTS MAY BE CALIFORNIA RESIDENTS.
`
`As seen in Plaintiff’s complaint, in addition to bringing suit against Monsanto and Wilbur-
`Ellis, Plaintiff also alleges claims against DOES defendants. Plaintiff’s Complaint, ¶ 32. What
`entities or which persons are involved in the funding, researching, studying, manufacturing,
`fabricating, designing, developing, labeling, assembling, distributing, supplying, leasing, buying,
`offering for sale, selling, inspecting, servicing, contracting others for marketing, warranting,
`rebranding, manufacturing for others, packaging, and advertising of Roundup is unknown to
`Plaintiff at this nascent stage of the litigation. Certainly, additional California entities and residents
`are likely involved. Since courts must resolve all disputed questions of fact and all ambiguities in
`favor of the non-removing party, this case should be remanded to state court.
`
`
`
`6 Certificate of Ownership, CALIFORNIA SECRETARY OF STATE (last visited Sept 9, 2020),
`https://businesssearch.sos.ca.gov/Document/RetrievePDF?Id=00104720-6351597.
`
` 7
`
` Agreement and Plan of Merger, CALIFORNIA SECRETARY OF STATE (last visited Sept 9, 2020),
`https://businesssearch.sos.ca.gov/Document/RetrievePDF?Id=00104720-16548641.
`8
`NOTICE OF MOTION AND MOTION TO REMAND ACTION TO STATE COURT; MEMORANDUM OF
`POINTS AND AUTHORITIES
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`Case 3:16-md-02741-VC Document 11880 Filed 10/01/20 Page 9 of 9
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`
`CONCLUSION
`
`For the foregoing reasons, Plaintiff respectfully requests this Court to grant Plaintiff’s
`Motion to Remand.
`
`Dated: October 1, 2020
`
`
`
`
`
`GIBBS LAW GROUP LLP
`
`
`
`By: _/s/ Karen Barth Menzies___
`
`Karen Barth Menzies
`GIBBS LAW GROUP LLP
`505 14th Street, Suite 1110
`Oakland, CA 94612
`Tel: (510) 350-9700
`Fax: (510) 350-9701
`kbm@classlawgroup.com
`Fletcher V. Trammell
`(pro hac vice to be submitted)
`Melissa Binstock Ephron
`(pro hac vice to be submitted)
`TRAMMELL, PC
`3262 Westheimer Rd., Ste. 423
`Houston, TX 77098
`Tel: (800) 405-1740
`Fax: (800) 532-0992
`fletch@trammellpc.com
`melissa@trammellpc.com
`
`
`Alexander G. Dwyer
`(pro hac vice to be submitted)
`Andrew F. Kirkendall
`(pro hac vice to be submitted)
`Erin M. Wood
`(pro hac vice to be submitted)
`KIRKENDALL DWYER LLP
`4343 Sigma Rd, Suite 200
`Dallas, TX 75244
`Tel: 214-271-4027
`Fax: 214-253-0629
`ad@kirkendalldwyer.com
`ak@kirkendalldwyer.com
`ewood@kirkendalldwyer.com
`
`Attorneys for Plaintiff
`
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