throbber
Case: 1:21-cv-00089-SNLJ Doc. #: 16 Filed: 08/25/21 Page: 1 of 28 PageID #: 27
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`SOUTHEASTERN DIVISION
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`COY’S HONEY FARM, INC.,
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`Plaintiff,
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`v.
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`BAYER CORPORATION; BAYER
`U.S., LLC; BAYER CROPSCIENCE
`Arkansas Inc.; BASF CORPORATION;
`and BASF SE
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`)
`)
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`DEFENDANTS’ MEMORANDUM IN SUPPORT OF
`THEIR MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
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`Defendants Bayer Corporation, Bayer U.S., LLC, Bayer Cropscience Arkansas Inc., and
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` MDL No.: 1:18-md-02820-SNLJ
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` Indiv. Case No. 1:21-cv-00089-SNLJ
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`Defendants.
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`BASF Corporation1 are entitled to complete dismissal of Plaintiff’s First Amended Complaint,
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`pursuant to Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6), because the allegations of
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`the First Amended Complaint fail to state a claim against Defendants upon which relief can be
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`granted. The claims alleged by Plaintiff against Defendants are hardly new; in fact, most of these
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`same claims have already been considered and dismissed by this Court.
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`Yet, as compared to the typical off-target movement lawsuit, Plaintiff’s alleged injuries
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`are even more attenuated. Plaintiff does not claim that off-target herbicide movement injured its
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`crops, plants, or other vegetation. Rather, Plaintiff, a commercial bee-keeper and honey
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`producer, claims that dicamba damaged unknown and unspecified weeds, plants, trees, and other
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`1 BASF SE is also named as a defendant in Plaintiff’s First Amended Complaint, but BASF SE
`has not been served.
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`vegetation on properties owned by others. As a result of such alleged, unspecified damage,
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`Plaintiff claims that its bees were unable to collect sufficient pollen and nectar and,
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`consequently, were unable to produce honey to be sold by Plaintiff. In short, Plaintiff’s claims
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`are multiple layers removed from the manufacture, advertising, sale, or use of XtendiMax or
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`Engenia than the typical plaintiff.
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`Moreover, Plaintiff’s other claims are substantively deficient and are subject to dismissal
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`on multiple grounds. Specifically, the following claims fail as a matter of law and should be
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`dismissed:
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`1. Plaintiff’s Lanham Act claim (Count I) fails for lack of standing because Plaintiff is not
`within the zone of interests protected by the Lanham Act and for failure to state a claim
`because Plaintiff has not alleged a loss of goodwill or any direct diversion of sales from
`itself to Defendants.
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`2. Plaintiff’s breach of implied warranty of merchantability claim (Count V) fails because
`Defendants disclaimed all implied warranties on their product labels and because Plaintiff
`failed to plead the statutorily required pre-suit notice.
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`3. Plaintiff’s nuisance claim (Count VI) fails because Plaintiff does not allege that any of
`the Defendants owned or otherwise used land in Arkansas, much less in the vicinity of
`Plaintiff’s hives—an essential element of the cause of action.
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`4. Plaintiff’s trespass claim (Count VII) fails because Plaintiff failed to plead intent, product
`manufacturers are not liable for trespass after a product leaves their control, and
`particulate matter does not constitute a physical invasion under Arkansas’s traditional
`view of trespass.
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`5. Plaintiff’s strict liability – ultrahazardous/abnormally dangerous activity claim (Count X)
`fails because ultrahazardous activity liability does not apply to mere product
`manufacturers and herbicide application, including application of dicamba-based
`herbicides, is a matter of common usage.
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`6. Plaintiff’s claim under the Arkansas Deceptive Trade Practices Act (Count XI) fails
`because the statute provides a safe harbor for regulated transactions such as the
`manufacture and sale of herbicides, and Plaintiff has failed to plead fraud with
`particularity.
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`In addition, Plaintiff’s product liability related claims (Counts II, III, IV, V, VIII, and IX)
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`are untimely. Although Plaintiff knew of its claimed injuries and alleged connection to
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`Defendants’ products back in 2017, Plaintiff delayed filing the current suit until May 2021, more
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`than a year after the applicable three-year statute of limitations had run.
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`FACTUAL BACKGROUND
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`Plaintiff Coy’s Honey Farms, Inc. is a bee-keeping and honey-producing operation that
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`was based in the Jonesboro, Arkansas area. (Dkt. 590, First Amended Complaint ¶ 19
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`[hereinafter “FAC”]). Plaintiff’s claims center on alleged off-target movement of certain
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`dicamba-based herbicide products, including those produced by Monsanto Company
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`(“Monsanto”) (XtendiMax® with VaporGrip® Technology (“XtendiMax”)) and BASF
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`Corporation (Engenia® (“Engenia”)). (FAC ¶ 15).
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`Plaintiff generically claims that off-target movement of dicamba herbicides in eastern
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`Arkansas damaged unknown and unspecified non-tolerant crops, plants, and vegetation
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`surrounding Plaintiff’s bee-keeping operations which “greatly diminished” the “pollen and nectar
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`sources for Plaintiff’s bees” (FAC ¶ 25) and resulted in reduced honey production and loss of
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`bees. (FAC ¶¶ 43-44). Notably, Plaintiff does not allege any direct injury from off-target
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`movement of XtendiMax or Engenia. Unlike the prototypical off-target movement lawsuit in
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`which the plaintiff alleges that its crops were injured by off-target movement of herbicides,
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`Plaintiff does not own any of the crops, plants, or other vegetation it alleges were damaged by
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`off-target herbicide movement; nor does it otherwise claim to have been involved in the purchase
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`or use of XtendiMax, Engenia, or any dicamba-tolerant seed. (FAC ¶¶ 21-22). Rather, Plaintiff
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`claims that (1) off-target movement of dicamba herbicides damaged unknown and unspecified
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`non-tolerant crops, trees, flowers, and other vegetation owned by third parties, which (2) reduced
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`the natural sources of pollen and nectar available to Plaintiff’s bees, which (3) negatively
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`impacted the ability of Plaintiff’s bees to produce honey, and which, finally, (4) led to losses of
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`bees and honey sales. (FAC ¶¶ 25-26, 43-44). Plaintiff lacks any knowledge as to the source or
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`location of any dicamba applications, admitting that “it is difficult or impossible to identify any
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`single application that caused or contributed to the damage to plant life” alleged by Plaintiff.
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`(FAC ¶ 46).
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`Plaintiff asserts claims for (1) violation of the Lanham Act; (2) breach of duty of
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`manufacturer; (3) breach of duty of manufacturer to warn; (4) breach of duty of manufacturer to
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`instruct; (5) breach of implied warranty of merchantability; (6) nuisance; (7) trespass; (8)
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`negligence; (9) strict liability – products liability; (10) strict liability – ultrahazardous or
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`abnormally dangerous activity; (11) violation of the Arkansas Deceptive Trade Practices Act;
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`and (12) punitive damages.
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`PROCEDURAL BACKGROUND
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`Plaintiff filed this lawsuit on May 25, 2021, in the United States District Court for the
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`Eastern District of Arkansas, Northern Division. Coy’s Honey Farm Inc. v. Bayer Corp., et.al,
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`3:21-cv-00104. This lawsuit was tagged for transfer to In re: Dicamba Herbicides Litigation
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`MDL (the “dicamba MDL”) on May 28, 2021 (MDL Dkt. 160) and the Conditional Transfer
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`Order was issued on June 10, 2021. (MDL Dkt. 587). Plaintiff filed its First Amended
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`Complaint, the operative Complaint, on July 15, 2021. (MDL Dkt. 590).
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`On or about July 16, 2021, Plaintiff filed a Notice to Conform its claims to the Master
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`Antitrust Class Action Complaint and/or Master Crop Damage Class Action Complaint (MDL
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`Dkt. 591); however, Plaintiff subsequently withdrew its Notice to Conform and reaffirmed the
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`allegations set forth in its First Amended Complaint. (MDL Dkt. 595). On August 4, 2021, the
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`Court lifted the stay with respect to this matter and set August 25, 2021, as the deadline for filing
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`responsive pleadings to the First Amended Complaint. (Dkt. 11).
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`LEGAL STANDARD
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`“‘To survive a motion to dismiss, a complaint must contain sufficient factual matter,
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`accepted as true, to state a claim to relief that is plausible on its face.’” Warmington v. Bd. Of
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`Regents of Univ. of Minn., 998 F.3d 789, 795 (8th Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S.
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`662, 678 (2009)). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the
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`elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked
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`assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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`(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Failure to plead an essential
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`element of a cause of action is a “fatal deficiency warranting dismissal.” Gatlin ex rel. Est. of
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`Gatlin v. Green, 362 F.3d 1089, 1095 (8th Cir. 2004); see also Briehl v. Gen. Motors Corp., 172
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`F.3d 623, 630 (8th Cir. 1999).
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`ARGUMENT
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`I.
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`
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`This Court Should Dismiss Plaintiff’s Lanham Act Claim.
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`A.
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`Plaintiff does not have statutory standing to sue under the Lanham Act.
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`The Court should dismiss Plaintiff’s Lanham Act claim because it lacks statutory
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`standing and fails to plead the type of injury Section 1125(a) of the Lanham Act intends to
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`redress—injury to business reputation or a diversion of sales from a plaintiff to a defendant.
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`As a threshold matter, Plaintiff must plead facts sufficient for it to demonstrate that it
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`“fall[s] within the class of plaintiffs whom Congress has authorized to sue” under the Lanham
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`Act. See Tovar v. Essentia Health, 857 F.3d 771, 774 (8th Cir. 2017) (quotation omitted). There
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`is a two-step process to determine whether a plaintiff possesses this “statutory standing”: a zone
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`of interest inquiry and a proximate cause analysis. Lexmark Int’l, Inc. v. Static Control
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`Components, Inc., 572 U.S. 118, 128 (2014). Plaintiff does not fall within the Lanham Act’s
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`zone of interests; therefore, the Court should dismiss Plaintiff’s Lanham Act claim.
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`Whether Plaintiff falls within the Lanham Act’s zone of interest is an issue of statutory
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`interpretation and is decided as a matter of law. See id. at 127; Proctor & Gamble Co. v. Haugen,
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`222 F.3d 1262, 1271 (10th Cir. 2000). The Lanham Act “protect[s] persons engaged in . . .
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`commerce [within the control of Congress] against unfair competition.” 15 U.S.C. § 1127. Thus,
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`to come within the Lanham Act’s zone of interest, a plaintiff must plead (and ultimately prove)
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`an injury to a commercial interest in business reputation or sales. Lexmark, 572 U.S. at 131–32.
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`In the context of the Lanham Act, “sales” means a “direct diversion of sales” from the plaintiff to
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`the defendant. Buetow v. A.L.S. Enters., Inc., 650 F.3d 1178, 1182 (8th Cir. 2011); John Bean
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`Techs. Corp. v. Morris & Assocs., Inc., 2018 WL 3039734, at *6 (W.D. Ark. June 19, 2018).
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`Courts reject Lanham Act claims that fail to allege lost sales in the form of diverted sales or sales
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`withheld from the plaintiff—that is, a competitive injury. For example, in Locus
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`Telecommunications, Inc. v. Talk Global, LLC, the plaintiff sued the defendant for allegedly
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`making false statements about its product, PIN numbers used to add minutes to prepaid
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`cellphones. 2014 WL 4271635, at *1 (D.N.J. Aug. 28, 2014). The plaintiff alleged that it relied
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`on defendant’s claims in purchasing the PIN numbers for resale, but the PIN numbers did not
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`work, precluding the plaintiff and its customers from being able to redeem them and causing
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`plaintiff to lose sales and goodwill. The court dismissed plaintiff’s claim because “the injury of
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`which [plaintiff] complains does not stem from conduct by [defendant] which unfairly
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`diminishes [plaintiff’s] competitive position in the marketplace.” Id. at *2. Rather, “a Lanham
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`Act claim for false advertising requires some deception by the defendant which causes
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`consumers to withhold trade from the plaintiff.” Id. (emphasis added) (citing Lexmark, 572 U.S.
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`at 133–34).
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`Plaintiff does not allege such an injury. Plaintiff asserts that it was ultimately damaged by
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`alleged off-target movement of XtendiMax and Engenia because such alleged off-target
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`movement injured the “plants from which the Plaintiff’s bees acquired their nectar and pollen . . .
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`resulting [in the] reduction in the production of honey by the bees,” which allegedly caused “loss
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`of sales and income from the sale of honey.” (FAC ¶ 26). Plaintiff does not allege: (1) that any
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`statement by any Defendant injured its business reputation; (2) that it has suffered or is likely to
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`suffer an injury from a direct diversion of its sales to any Defendant or by a loss of goodwill
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`associated with its products; or (3) that any deception caused consumers to withhold trade from
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`Plaintiff. See Infogroup, Inc. v. DatabaseLLC, 95 F. Supp. 3d 1170, 1187 (D. Neb. 2015). The
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`entire crux of the First Amended Complaint is that alleged damage to pollen-bearing vegetation
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`from the spraying of dicamba herbicides allegedly resulted in less honey for Plaintiff to sell,
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`(FAC ¶ 26), not that Plaintiff has been injured “either by direct diversion of sales from itself to
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`defendant or by a loss of goodwill associated with its products,” which is an essential
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`requirement for a Lanham Act claim under Eighth Circuit law. Buetow, 650 F.3d at 1182. Like in
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`Locus Telecommunications, Plaintiff does not allege a competitor relationship with Defendants
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`or an injury that stems from Defendants’ actions as a competitor. See 2014 WL 4271635, at *2-3.
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`Plaintiff therefore cannot make any credible claim that it falls within the Lanham Act’s zone of
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`interest, and this Court should dismiss Plaintiff’s Lanham Act claim.
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`B.
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`This Court should dismiss Plaintiff’s Lanham Act Claim because it fails to
`satisfy the pleading standard of Rule 8(a)(2).
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`Plaintiff’s failure to plead the requisite type of injury also causes the First Amended
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`Complaint to fall far short of Rule 8(a). “A pleading that states a claim for relief must contain . . .
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`a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
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`Civ. P. 8(a)(2). Failure to plead an essential element of a cause of action is a “fatal deficiency
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`warranting dismissal.” Gatlin, 362 F.3d at 1095 (8th Cir. 2004).
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`Again, to state a claim for false advertising under the Lanham Act, a plaintiff must allege
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`that he or she “has been or is likely to be injured as a result of the false statement, either by direct
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`diversion of sales from itself to defendant or by a loss of goodwill associated with its products.”
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`Buetow, 650 F.3d at 1182. As discussed above, Plaintiff has failed to allege any injury in the
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`form of a “direct diversion of sales from itself to [Defendants]” or “a loss of goodwill associated
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`with its products.” As a result, this Court should dismiss Plaintiff’s Lanham Act claim for failure
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`to plead an essential element. See Jus Punjabi, LLC v. Get Punjabi US, Inc., 640 F. App’x 56, 59
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`(2d Cir. 2016).
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`II.
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`This Court Should Dismiss Plaintiff’s Breach of Implied Warranty of
`Merchantability Claim.
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`Plaintiff next claims that Defendants breached the implied warranty of merchantability
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`because XtendiMax and Engenia “were not fit for their ordinary purposes.” (FAC ¶ 77).
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`However, Plaintiff’s breach of implied warranty of merchantability claim fails because
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`Defendants disclaimed all implied warranties, and this Court has already found those exact
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`disclaimers permissible and effective. (MDL Dkt. 302 at pp. 47-48). In addition, this Court
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`should also dismiss Plaintiff’s implied warranty claim because Plaintiff failed to plead the
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`requisite pre-suit notice of Defendants’ alleged breaches.
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`Defendants Disclaimed all implied warranties on their product labels.
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`A.
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`As a threshold matter, Plaintiff’s breach of implied warranty of merchantability claim fails
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`because Defendants disclaimed all implied warranties in the sale of their respective products.
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`Engenia’s product label states:
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`(Ex. A at 27).2 The XtendiMax label contained similar disclaimers:
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`2 Defendants’ product labels and warranties can be considered by the Court in ruling on a motion
`to dismiss because the labels are necessarily embraced by the pleadings, as the First Amended
`Complaint challenges XtendiMax’s and Engenia’s labeling, and no party contests the label’s
`authenticity. See Zean v. Fairview Health Servs., 858 F.3d 520, 526 (8th Cir. 2017); see also
`Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012) (“Though matters outside
`the pleading may not be considered in deciding a Rule 12 motion to dismiss, documents
`necessarily embraced by the complaint are not matters outside the pleading.”).
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`(Ex. B at 7).
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`Under the UCC, a seller may disclaim implied warranties if the disclaimer mentions
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`merchantability and is conspicuous and may exclude the implied warranty of fitness if the
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`exclusion is in writing and conspicuous. Ark. Code Ann. §§ 4-2-314, 4-2-316. A “conspicuous”
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`term is one “so written, displayed, or presented that a reasonable person against which it is to
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`operate ought to have noticed it.” Id. § 4-1-201(b)(10). Both the Engenia and XtendiMax
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`warranty disclaimers are conspicuous, as a matter of law, because they are in writing, contain the
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`word “merchantability,” and present the text in bold and/or capital letters. This Court has already
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`used those exact disclaimers as a basis to dismiss the implied warranty claims of the dicamba
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`MDL plaintiffs, because “giv[ing] the non-purchasing plaintiffs more rights than the purchasers
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`themselves would have an untenable result.” (MDL Dkt. 302 at pp. 47-48).
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`B.
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`Plaintiff’s breach of implied warranty claims fail as a matter of law because
`it does not plead pre-suit notice in the First Amended Complaint.
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`Plaintiff’s breach of implied warranty of merchantability claim should also be dismissed
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`because it fails to allege that Plaintiff notified Defendants of the alleged breach of warranty prior
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`to filing this lawsuit.
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`Pursuant to Article 2, Section 607 of the UCC, which has been adopted in Arkansas, a
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`buyer of goods alleging a breach of warranty “must within a reasonable time after he discovers or
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`should have discovered any breach notify the seller of breach or be barred from any remedy.” Ark.
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`Code Ann. § 4-2-607(3)(a). The notice must come from the buyer himself and “inform the seller
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`that the buyer demands damages upon an asserted claim of breach of warranty.” Cotner v. Int’l
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`Harvester Co., 545 S.W.2d 627, 630 (Ark. 1977). The mere filing of the complaint does not satisfy
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`the notice requirement. Id. Rather, a plaintiff must “provide some minimal notice before filing a
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`lawsuit.” Budach v. NIBCO, Inc., 2015 WL 6870145, at *3 (W.D. Mo. Nov. 6, 2015).
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`“[T]he giving of reasonable notice is a condition precedent to recovery,” and “the giving
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`of notice must be alleged in the complaint in order to state a cause of action.” Adams v. Wacaster
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`Oil Co., 98 S.W.3d 832, 835 (Ark. Ct. App. 2003). Failure to plead notice in support of either an
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`express or implied warranty claim dooms the cause of action. E.g., Budach, 2015 WL 6870145, at
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`*2-*5 (dismissing express and implied warranty claims for failure to plead notice); Howard v.
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`Bayer Corp., 2011 WL 13224118, at *2 (E.D. Ark. July 22, 2011) (similar for express warranty
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`claim); In re Ford Motor Co. E-350 Van Prods. Liab. Litig. (No. II), 2008 WL 4126264, at *9–10
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`(D.N.J. Sept. 2, 2008) (applying Arkansas law to dismiss implied warranty count).
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`Despite the unambiguous requirement that each buyer plead notice, Plaintiff failed to do
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`so. Instead, Plaintiff merely contends Defendants “were aware” that their respective products
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`“were not fit for use in application over the top of crops.” (FAC ¶ 78). Aside from that, the First
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`Amended Complaint says nothing about Plaintiff notifying Defendants about possible breaches of
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`warranty; nor does the First Amended Complaint say anything about when Plaintiff notified
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`Defendants that warranties had been breached. An allegation that Defendants “were aware” of a
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`particular problem does not satisfy the statutory requirement that Plaintiff plead notice: courts
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`interpreting Arkansas law have ruled that “a manufacturer’s general awareness of the alleged
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`warranty breaches” is insufficient to satisfy the pre-suit notice requirement. E.g., In re Ford Motor
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`Co. E-350 Van, 2008 WL 4126264, at *9–10 (applying Arkansas law and concluding that despite
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`defendant’s awareness of problems with the product generally, plaintiffs were required and failed
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`to plead that they personally notified defendant before filing suit).
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`Because Plaintiff has failed to plead that it notified Defendants of a possible breach of
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`warranty, this Court should dismiss its causes of action for breach of implied warranty.
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`III.
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`This Court Should Dismiss Plaintiff’s Nuisance Claim.
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`Because the First Amended Complaint fails to allege that Defendants owned land in
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`Arkansas, or that the alleged nuisance proceeded from this land ownership, Plaintiff cannot
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`plausibly state a claim for nuisance under Arkansas law. This Court has already rejected the
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`nuisance claims of the MDL plaintiffs. (MDL Dkt. 302 at pp. 23-26).3
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`In Arkansas, “[n]uisance is defined as conduct by one landowner that unreasonably
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`interferes with the use and enjoyment of the lands of another and includes conduct on property
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`that disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property.” Goforth
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`v. Smith, 991 S.W.2d 579, 587–88 (Ark. 1999) (emphasis added); see also Ga.-Pac. Corp. v.
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`Carter, 265 S.W.3d 107, 113 (Ark. 2007). In other words, the condition alleged to be a nuisance
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`must stem from defendant’s use of its land or activities conducted on defendant’s property.
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`Miller v. Jasinski, 705 S.W.2d 442, 444 (Ark. Ct. App. 1986). Plaintiff alleges that “Defendants
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`have created a nuisance to the Plaintiff by developing and selling Herbicides to farmers and other
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`applicators of Herbicides that were and are prone to drift and volatilize when sprayed over-the-
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`top of soybeans, cotton, corn and other crops . . . .” (FAC ¶ 80). However, Plaintiff does not
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`allege that Defendants own land in Arkansas, much less that the alleged conduct impacting
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`Plaintiff occurred on land owned by Defendants.4 This is fatal to Plaintiff’s nuisance claim, and
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`this Court should dismiss it. See Indep. Cnty. v. Pfizer, Inc., 534 F. Supp. 2d 882, 890 (E.D. Ark.
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`2008), aff’d sub nom. Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659 (8th Cir. 2009)
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`(“Defendants do not own the land on which the alleged nuisance occurred. Because Defendants
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`are not landowners, Plaintiffs cannot succeed on their public nuisance claim.”). To find
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`otherwise would essentially make Defendants responsible for the post-sale use of their products
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`on land they do not own or control—an idea that this Court has outright rejected, because
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`3 The dicamba MDL plaintiffs did not bring a nuisance case under Arkansas law; however, the
`rationale for rejecting the nuisance claims under the other states’ laws is equally applicable to
`nuisance claims brought under Arkansas law.
`
`4 Furthermore, Plaintiff does not (and cannot) even allege where third parties may have applied
`dicamba-based herbicides that might have impacted plants that its bees could not forage.
`13
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`US.134105267.04
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`

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`Case: 1:21-cv-00089-SNLJ Doc. #: 16 Filed: 08/25/21 Page: 14 of 28 PageID #: 40
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`
`“manufacturers have no liability for nuisance claims because they no longer have control over
`
`
`
`the product after its sale to third parties.” (MDL Dkt. 302 at pp. 23-26).
`
`IV.
`
`
`This Court Should Dismiss Plaintiff’s Trespass Claim.
`
`Plaintiff alleges that “Defendants, by manufacturing and selling the Herbicides that drift,
`
`volatilize and otherwise cause damage to non-dicamba-resistant plants have caused such
`
`Herbicides to enter upon property on which Plaintiff was legally entitled to keep and maintain
`
`its bees, on which such bees had a right to gather nectar, pollen and other plant substances.”
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`(FAC ¶ 85). These allegations fail to state a claim for trespass against Defendants because (1)
`
`Plaintiff failed to allege the requisite intent; (2) Defendants lacked post-sale control over the
`
`herbicides and did not dispossess Plaintiff; and (3) herbicide drift is a particulate matter that
`
`cannot create a trespass. This Court rejected this claim, brought on similar grounds, in this MDL
`
`proceeding. (MDL Dkt. 302 at pp. 20-23 (dismissing the dicamba MDL plaintiffs’ trespass
`
`claim because it “is essentially a combination of products liability and misrepresentation
`
`theories with a conventional trespass claim,” and “[s]urely there is no need for such a
`
`complicated hybrid cause of action when plaintiffs have standalone causes of action for products
`
`liability and misrepresentation”)).
`
`While Arkansas courts have yet to define the exact contours of a trespass to chattels
`
`claim, courts have made it clear that trespass is an intentional tort, and the intent element cannot
`
`be satisfied unless the actor intended to commit the physical act. See Cross v. W. Waste Indus.,
`
`469 S.W.3d 820, 824–25 (Ark. Ct. App. 2015) (“Arkansas's law of trespass requires a physical
`
`invasion of a plaintiff’s real property that is caused by a defendant and results in damages.”).
`
`These elements—intent and physical act—are consistent with the Restatement’s definition,
`
`which provides that a “[t]respass is intentionally (a) dispossessing another of the chattel; or (b)
`
`
`US.134105267.04
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`
`14
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`Case: 1:21-cv-00089-SNLJ Doc. #: 16 Filed: 08/25/21 Page: 15 of 28 PageID #: 41
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`
`using or intermeddling with a chattel in the possession of another.” Restatement (Second) of
`
`
`
`Torts § 217 (1965). The Restatement further defines “intermeddling” as intentionally bringing
`
`about a physical contact with the chattel. Id. § 217 cmt. e. Thus, for Plaintiff to state a claim for
`
`trespass to chattels, it must plead facts demonstrating Defendants engaged in conduct intended
`
`to interfere with Plaintiff’s property or its possessory interests. See, e.g., Biosafe-One, Inc. v.
`
`Hawks, 639 F. Supp. 2d 358, 368–69 (S.D.N.Y. 2009) (granting summary judgment on trespass
`
`to chattels claim where “there is no evidence from which a reasonable jury could conclude that
`
`defendants acted ‘with the intention of interfering’ with plaintiffs’ property”). Plaintiff’s First
`
`Amended Complaint fails to do so.
`
`Second, Plaintiff’s trespass claim is defective because product manufacturers are not
`
`liable for trespass after their products leave their possession and control. Plaintiff’s only
`
`trespass-related allegations pertain to Defendants’ manufacture and sale of their respective
`
`herbicides. (FAC ¶ 85). While Arkansas has not yet considered the issue, courts in multiple
`
`other jurisdictions have found that mere sales cannot sustain a trespass to chattels claim. See,
`
`e.g., City of Bloomington, Ind. v. Westinghouse Elec. Corp., 891 F.2d 611, 615 (7th Cir. 1989)
`
`(holding chemical manufacturer was not liable for trespass where product caused contamination
`
`after sale and delivery to buyer—“[i]n accordance with the Restatement principles, courts do not
`
`impose trespass liability on sellers for injuries caused by their product after it has left the
`
`ownership and possession of the sellers”); Jordan v. S. Wood Piedmont Co., 805 F. Supp. 1575,
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`1582 (S.D. Ga. 1992) (finding the seller of chemicals was not liable for trespass for
`
`contamination that occurred when the buyer released the chemicals); Dine v. W. Exterminating
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`Co., 1988 WL 25511, at *9 (D.D.C. Mar. 9, 1988) (seller of insecticide not liable for trespass
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`when insecticide was used by another to treat a house); City of Manchester v. Nat’l Gypsum Co.,
`
`
`US.134105267.04
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`Case: 1:21-cv-00089-SNLJ Doc. #: 16 Filed: 08/25/21 Page: 16 of 28 PageID #: 42
`
`
`637 F. Supp. 646, 656 (D.R.I 1986) (dismissing trespass claim against asbestos manufacturer
`
`
`
`“because the plaintiff was the one placing the asbestos products in the schools and other public
`
`buildings”); Town of Hooksett Sch. Dist. v. W.R. Grace & Co., 617 F. Supp. 126, 133 (D.N.H
`
`1984) (dismissing trespass claim against asbestos manufacturer because “[d]efendants[’]
`
`ownership and control of the asbestos products ceased at the time of sale” and “[p]laintiff’s
`
`claims are more adapted to contract law or strict liability”); Parks Hiway Enters., LLC v. CEM
`
`Leasing, Inc., 995 P.2d 657, 664 (Alaska 2000) (seller of fuel not liable for trespass after
`
`purchaser leaked fuel to groundwater and contaminated plaintiff’s property, rejecting argument
`
`that seller set in motion the release of the fuel). Because courts do not impose trespass liability
`
`on sellers for injuries caused by their products after they have left their ownership, possession
`
`and control, Plaintiff’s trespass claim provides no basis for recovery.
`
`
`
`Finally, Arkansas applies the traditional theory of trespass which permits actions based
`
`on physical invasion. Cross, 469 S.W.3d at 824–25. Jurisdictions adopting this approach
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`consistently find that intrusion by particulate matter, such as herbicide or pesticide spray drift,
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`does not constitute the physical invasion necessary to sustain a claim for trespass. See, e.g., Babb
`
`v. Lee Cnty. Landfill SC, LLC, 747 S.E.2d 468, 476 (S.C. 2013) (rejecting a trespass claim for
`
`odors due to the absence of “an invasion by a physical, tangible thing”); Johnson v. Paynesville
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`Farmers Union Coop. Oil Co., 817 N.W.2d 693, 705 (Minn. 2012) (holding spray drift cannot
`
`constitute a trespass as it is not a tangible object); Adams v. Cleveland-Cliffs Iron Co., 602
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`N.W.2d 215, 223 (Mich. App. Ct. 1999) (declining to recognize a trespass claim for dust, noise,
`
`and vibrations emanating from defendant’s mining operation). Consequently, Plaintiff’s factual
`
`allegations fall outside the traditional theory of trespass adopted by Arkansas and fail to state a
`
`claim.
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`
`US.134105267.04
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`
`16
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`

`

`Case: 1:21-cv-00089-SNLJ Doc. #: 16 Filed: 08/25/21 Page: 17 of 28 PageID #: 43
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`
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`Because Plaintiff does not allege that Defendants acted with the requisite intent or
`
`
`
`
`exercised control over the herbicides post-sale, and because an alleged intrusion by particulate
`
`matter does not constitute a trespass, this Court should dismiss Plaintiff’s trespass claim.
`
`V.
`
`Plaintiff Has Failed to State a Claim for Strict Liability – Ultrahazardous Activity.
`
`Plaintiff claims that “Defendants’ manufacturing, selling, or otherwise disseminating the
`
`Dicamba Herbicide products . . . constitutes an abnormally dangerous or ultrahazardous
`
`activity.” (FAC ¶ 98). This Court rejected this claim, brought on similar grounds, in the dicamba
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`MDL, stating that “this Court is disinclined to extend the ultrahazardous activity doctrine to a
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`claim that the manufacture, marketing, and sale of a product can be an ultrahazar

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