throbber
Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 1 of 18 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`BEAUMONT DIVISION
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`Civil Action No.
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`§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§
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`ANDY TIMMONS, INC. d/b/a LOST DRAW
`VINEYARDS, ALEGRIA DE LA VIDA
`VINEYARDS, LLC, ALTA LOMA VINEYARD
`PARTNERSHIP, BENJAMIN FRIESEN, BINGHAM
`FAMILY VINEYARDS, LLC, ROWDY BOLEN and
`TAMEISHA BOLEN, BUENO SUERTE
`VINEYARDS, LLC, CASTAÑO PRADO
`VINEYARD, LLC, MIKE WEST d/b/a CHALLIS
`VINEYARDS, CHASE LANE and KENDRA LANE
`d/b/a CHASE LANE VINEYARD, GARY STEVEN
`BROWN and PAMELA JOYCE BROWN d/b/a
`COOPER VINEYARD, RUSSELL SMOTHERMON
`and SHARLANN SMOTHERMON d/b/a
`CORKSCREW VINEYARD, CORNELIOUS
`CORPORATION, COX FAMILY WINEGROWERS,
`LLC d/b/a COX FAMILY VINEYARDS, LT
`INVESTMENT GROUP, LLC d/b/a CRAZY
`CLUSTER VINEYARD, MARY MCKEE d/b/a
`CURVO FILA VINEYARD, DANIELS
`FARMLAND TRUST, TY WILMETH d/b/a
`DIAMANTE DOBLE DOS VINEYARDS, JETER
`and GAY WILMETH d/b/a DIAMANTE DOBLE
`VINEYARD, LARRY SMITH and SUE SMITH d/b/a
`DOG GONE VINEYARD, DONNA BURGESS
`ENTERPRISES, LLC d/b/a MY COVENANT,
`DWAYNE CANADA, BRENDA CANADA, and
`DANIEL CANADA d/b/a CANADA FAMILY
`VINEYARD, SAWYER FARM PARTNERSHIP
`d/b/a THE FAMILY VINEYARD, LONNIE
`GRAHAM and PENNY GRAHAM d/b/a FIVE STAR
`VINEYARD, DUSTIN GILLIAM and GLENDA
`GILLIAM d/b/a GILLIAM GAP VINEYARDS,
`GILLMORE BROTHERS, LP d/b/a GILLMORE
`BROTHERS VINEYARD, ANDIS APPLEWHITE
`d/b/a HALF CIRCLE CROSS VINEYARD, LA
`PRADERA VINEYARDS, LLC, LAHEY FARMS,
`LLC, LILLI OF THE VINE VINEYARDS, INC., AA
`MARTIN PARTNERS, LTD., PEGGY SEELEY and
`GEORGE SEELEY d/b/a MOONLIGHT
`VINEYARDS, NARRA VINEYARDS, LLC,
`HILLTOP WINERY AT PAKA VINEYARDS, LLC,
`PEGGY BINGHAM d/b/a PEGGY BINGHAM
`FARMS, TONY PHILLIPS and MADONNA
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`1
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`

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`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 2 of 18 PageID #: 2
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`PHILLIPS d/b/a PHILLIPS VINEYARD, REDDY
`VINEYARDS, INC., ROWLAND TAYLOR
`VINEYARDS, LLC, CLARA ANN MCPHERSON
`d/b/a SAGMOR VINEYARDS, CHARLES and
`CHERYL SEIFERT d/b/a SEIFERT STABLES &
`VINEYARDS, SIX HARTS VINEYARD, LLC, THE
`TOM AND JANICE HENSLEE LIVING TRUST,
`DOUG THOMAS and ANISSA THOMAS d/b/a
`THOMAS ACRES, TONY and BERTHA
`HENDRICKS d/b/a HENDRICKS FAMILY
`VINEYARD, CAROLYN KEANE, ANNA
`WINNELL YOUNG and MARJORIE JONES
`PARTNERSHIP d/b/a TCUKER FARMS, TWIN-T
`VINEYARDS, INC., JOE RIDDLE d/b/a UVA
`MORADO VINEYARD, RONALD LUKER and
`MARGARET LUKER d/b/a WHITE ROCK
`VINEYARDS, WILLIAMS RANCH VINEYARD,
`LLC, LARRY YOUNG d/b/a YOUNG FAMILY
`VINEYARDS, CAPROCK DISTRIBUTORS, LLC,
`STEVE NEWSOM, CINDY NEWSOM and GABE
`HISEL, NEWSOM FAMILY FARMS, LLC, LEDLIE
`POWELL, INDIVIDUALLY AND AS TRUSTEE OF
`THE LEDLIE S. AND DANETTE POWELL
`REVOCABLE TRUST d/b/a NEWSOM POWELL
`VINEYARD, DON HILL d/b/a DON HILL FARMS,
`TEXAS CUSTOM WINE WORKS, LLC, TEXAS
`WINERY OWNERS GROUP, LLC, KIM
`MCPHERSON d/b/a MCPHERSON CELLARS,
`INC., LYNCE CHARLES CARROLL, TEXAS
`WINE COMPANY, INC., and AKG REALTY, INC.,
`Plaintiffs,
`
`v.
`BAYER CROP SCIENCE, LP, MONSANTO
`COMPANY, and BASF CORPORATION,
`Defendants.
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`
`
`NOTICE OF REMOVAL
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`PLEASE TAKE NOTICE that Defendant BASF Corporation (“BASF”), hereby removes
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`the state court action captioned Andy Timmons, Inc. d/b/a Lost Draw Vineyards, et al. v. Bayer
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`Crop Science, LP, et al., Case # B0207748, to this Court pursuant to 28 U.S.C. §§ 1332, 1441,
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`and 1446. The grounds for removal are as follows:
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`2
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`

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`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 3 of 18 PageID #: 3
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`I.
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`BACKGROUND
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`1.
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`Plaintiffs’ Original Petition inappropriately aggregates the separate and individual
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`claims of 57 vineyards that grow grapes in the High Plains and four processors that process those
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`grapes. Ex. A: Original Petition (June 4, 2021) at p. 5 (“Original Petition”). As set forth in more
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`detail below, only one of the named Plaintiffs is non-diverse. Plaintiffs’ improper joinder of one
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`diverse Plaintiff to the separate and individual claims of the other 60 named Plaintiffs does not
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`defeat federal jurisdiction for the 60 Plaintiffs that are diverse.
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`
`
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`A.
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`2.
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`Nature of the Case
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`Plaintiffs claim that Monsanto Company’s (“Monsanto”) XtendFlex® dicamba-
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`resistant cotton seed product (“Xtend seeds”) and Monsanto and Bayer Crop Science, LP’s
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`(“Bayer”) XtendiMax® with VaporGrip® Technology dicamba herbicide (“XtendiMax”), along
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`with BASF’s Engenia® dicamba herbicide (“Engenia”), form a “dicamba-based seed system.”
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`Original Petition at p. 3 (“Original Petition”). They further claim that dicamba herbicides applied
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`to dicamba-resistant cotton moved off-target and damaged their vineyards. Id. ¶¶ 135-38.
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`3.
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`Plaintiffs have asserted claims for (a) strict liability – design defect; (b) negligent
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`design; and (c) punitive damages. Id. ¶¶ 147-69.
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`
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`B.
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`4.
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`An MDL Involving the Same Products and Claims Exists
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`Federal lawsuits alleging crop loss caused by the application of Monsanto and
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`Bayer’s XtendiMax and BASF’s Engenia over the top of crops grown from Monsanto’s
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`dicamba-resistant Xtend seeds have been transferred for coordinated multidistrict litigation
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`(“MDL”) proceedings to Judge Steven Limbaugh, Jr. in the Eastern District of Missouri,
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`Southeastern Division (the “MDL Court”). See Ex. B: In re Dicamba Herbicides Litig., MDL
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`No. 2820, JPML Transfer Order (Feb. 1, 2018).
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`3
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`

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`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 4 of 18 PageID #: 4
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`5.
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`Thus, as required by JPML Rule 7.1, BASF will promptly file a Notice of
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`Potential Tag-along Action with the Clerk for the JPML, identifying this action for transfer to the
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`MDL Court.
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`C.
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`6.
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`REMOVAL
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`As set forth in more detail below, this case is properly removed to this Court
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`pursuant to 28 U.S.C. § 1441 as an action between citizens of different states in which the
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`amount in controversy exceeds $75,000, pursuant to 28 U.S.C. § 1332(a). BASF has satisfied the
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`procedural requirements for removal set forth in 28 U.S.C. § 1446.
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`II.
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`PROCEDURAL REQUIREMENTS FOR REMOVAL
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`
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`A.
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`7.
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`The Notice of Removal Is Timely Filed
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`Plaintiffs filed this action in the District Court of Jefferson County, Texas on June
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`4, 2021 (the “State Court Action”). Id. BASF was served on June 10, 2021, Monsanto was
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`served on June 16, 2021, and Bayer was served on June 16, 2021. Ex. C: Service Papers.
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`8.
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`This Notice of Removal is timely filed within 30 days of the date Plaintiffs served
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`the State Court Action on BASF.
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`B.
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`9.
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`C.
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`All Defendants Consent to Removal
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`All Defendants have consented to removal.1
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`All Other Procedural Requirements for Removal Are Satisfied
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`10.
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`In addition to the Original Petition and Service Papers, the only other papers
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`served or filed in the State Court Action are a Civil Case Information Sheet, a Request for
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`Process, and a letter to the court regarding the payment of an additional filing fee because of the
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`number of plaintiffs. Ex. D: Other State Court File Materials.
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`1 Monsanto and Bayer informed BASF in writing that they consent to this removal and that they will separately file
`a consent and joinder to this Notice of Removal in accordance with the same.
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`4
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`

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`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 5 of 18 PageID #: 5
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`11.
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`The District Court of Jefferson County, Texas is located within the Eastern
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`District of Texas, Beaumont Division, see 28 U.S.C. § 124(c)(2), and venue for this action is
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`proper in this Court under 28 U.S.C. § 1441(a) because the Eastern District of Texas, Beaumont
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`Division, is the “district and division embracing the place where such action is pending.”
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`12.
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`A copy of this Notice of Removal is being served upon counsel for Plaintiffs, and
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`a copy is being contemporaneously filed in the State Court Action.
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`III.
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`THIS COURT HAS DIVERSITY JURISDICTION
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`A.
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`13.
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`The Amount in Controversy Requirement Is Satisfied
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`Removal is proper under 28 U.S.C. § 1441, because this Court has original
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`jurisdiction of this matter pursuant to 28 U.S.C. § 1332(a).
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`14.
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`“The district courts shall have original jurisdiction of all civil actions where the
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`matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
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`between . . . citizens of different States.” 28 U.S.C. § 1332(a).
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`15.
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`The Original Petition states that “Plaintiffs will seek at least $560 million at trial”
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`and that “each Plaintiff seeks monetary relief over $250,000.” Original Petition at p. 5, ¶ 1.
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`Therefore, the amount-in-controversy requirement is satisfied. See White v. FCI USA, Inc., 319
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`F.3d 672, 674 (5th Cir. 2003) (noting that amount in controversy is generally satisfied “if the
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`plaintiff claims a sum greater than the jurisdictional requirement”).
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`B.
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`16.
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`Complete Diversity Exists Between All Properly Joined Parties
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`As explained below, this case is properly removed to this Court pursuant to 28
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`U.S.C. § 1441 as an action between citizens of different states. Section 1441 provides that
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`removal based on diversity jurisdiction is proper “if [none] of the parties in interest properly
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`joined and served as defendants is a citizen of the State in which such action is brought.” 28
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`5
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`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 6 of 18 PageID #: 6
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`U.S.C. § 1441(b) (emphasis added). The complete diversity as set forth in this Notice of
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`Removal existed both at the time of the filing of the suit in state court and at the time of removal.
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`17. Monsanto is and, at all times since the commencement of this action has been, a
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`Delaware corporation, having its principal place of business in Missouri. Thus, for jurisdictional
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`purposes, Monsanto is a citizen of Missouri and Delaware.
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`18.
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`BASF is and, at all times since the commencement of this action has been, a
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`Delaware corporation, having its principal place of business in New Jersey. Thus, for
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`jurisdictional purposes, BASF is a citizen of New Jersey and Delaware.
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`19.
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`Bayer CropScience LP is and, at all times since the commencement of this action
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`has been, a Delaware limited partnership whose general partner is Athenix Corporation, and
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`whose limited partners are Bayer CropScience Holding Inc., Monsanto Company, Bayer Seeds
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`B.V., Hornbeck Seed Company, Inc., AgraQuest Inc., and Bayer CropScience LLC. Athenix
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`Corporation is and, at all times since the commencement of action has been, a North Carolina
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`corporation with its principal place of business in North Carolina. Bayer CropScience Holding
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`Inc. is and, at all times since the commencement of action has been, a New York corporation
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`with its principal place of business in North Carolina. As stated above, Monsanto is a citizen of
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`Missouri and Delaware. Bayer Seeds, B.V. is a private company with limited liability
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`incorporated under the laws of the Netherlands.2 Hornbeck Seed Company, Inc. is an Arkansas
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`corporation with its principal place of business in North Carolina. AgraQuest Inc. is a Delaware
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`corporation with its principal place of business in North Carolina. Bayer CropScience LLC is a
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`Delaware limited liability company whose sole member is Bayer Corporation, an Indiana
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`2 A Dutch “BV” entity is treated as a corporation for the purposes of diversity. E.g., BouMatic, LLC v. Idento
`Operations, BV, 759 F.3d 790, 791 (7th Cir. 2014). Alternatively, even if Bayer Seeds, B.V. is treated as limited
`liability company for the purposes of diversity jurisdiction, Bayer Seeds, B.V.’s sole member is Bayer World
`Investments B.V., a Dutch private limited liability company, whose sole member is Bayer Pharma AG, a German
`Corporation with its principal place of business in Germany.
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`6
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`

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`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 7 of 18 PageID #: 7
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`corporation with its principal place of business in New Jersey. Therefore, for jurisdictional
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`purposes, Bayer CropScience LP is a citizen of Delaware, Indiana, North Carolina, New York,
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`New Jersey, Missouri, and the Netherlands.
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`20.
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`Plaintiff Benjamin Friesen is and, at all times since the commencement of this
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`action has been, a citizen of Texas. Original Petition ¶¶ 5. Therefore, for jurisdictional purposes,
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`Benjamin Friesen is a citizen of Texas. See Alphonse v. Arch Bay Holdings, L.L.C., 618 Fed.
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`Appx. 765, 767-68 (5th Cir. 2015) (“Citizenship is based on domicile, i.e. where an individual
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`resides and intends to remain.”).
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`21.
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`The following Plaintiffs are sole proprietors who are and, at all times since the
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`commencement of this action have been, citizens of Texas: Rowdy Bolen and Tameisha Bolen;
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`Mike West d/b/a Challis Vineyards; Chase Lane and Kendra Lane d/b/a Chase Lane Vineyard;
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`Gary Steven Brown, D.C. and Pamela Joyce Brown, Ph.D. d/b/a Cooper Vineyard; Russell and
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`Sharlann Smothermon d/b/a Corkscrew Vineyards; Mary McKee d/b/a Curvo Fila Vineyard; Ty
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`Wilmeth d/b/a Diamante Doble Dos Vineyards; Jeter and Gay Wilmeth d/b/a Diamante Doble
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`Vineyard; Larry and Sue Smith d/b/a Dog Gone Vineyard; Dwayne Canada, Brenda Canada, and
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`Daniel Canada d/b/a Canada Family Vineyard; Lonnie and Penny Graham d/b/a Five Star
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`Vineyards; Dustin Gilliam and Glenda Gilliam d/b/a Gilliam Gap Vineyards; Andis E.
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`Applewhite d/b/a Half Circle Cross Vineyard; Peggy D. Seeley and George M. Seeley d/b/a
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`Moonlight Vineyards; Peggy Bingham d/b/a Peggy Bingham Farms; Tony Phillips and Madonna
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`Phillips d/b/a Phillips Vineyard; Clara Ann McPherson d/b/a Sagmor Vineyards; Charles and
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`Cheryl Seifert d/b/a Seifert Stables & Vineyards; Doug Thomas and Anissa Thomas d/b/a
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`Thomas Acres; Tony and Bertha Hendricks d/b/a Hendricks Family Vineyard; Joe Riddle d/b/a
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`Uva Morado Vineyard; Ronald and Margaret Luker d/b/a White Rock Vineyards; Larry Young
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`7
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`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 8 of 18 PageID #: 8
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`d/b/a Young Family Vineyards; Steve Newsom, Cindy Newson, and Gabe Hisel; Don Hill d/b/a
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`Don Hill Farms; and Lynce Charles Carroll. Original Petition ¶¶ 7, 10-13, 17, 19-21, 23, 25, 26,
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`28, 33, 36, 40, 41, 45, 46, 49, 50, 52, 54, 57, 61. Therefore, for jurisdictional purposes, they are
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`citizens of Texas. See Royal Ins. Co. of Am. v. Quinn–L Cap. Corp., 3 F.3d 877, 882 (5th Cir.
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`1993) (“For purposes of ascertaining whether the federal courts have diversity jurisdiction, an
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`unincorporated association is considered to have the citizenship of its members.”); Hummel v.
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`Townsend, 883 F.2d 367, 369 (5th Cir. 1989) (noting “the equally well-settled principle that an
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`unincorporated association is deemed a citizen of every state in which its members reside”);
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`Trafigura AG v. Enter. Prod. Operating LLC, 995 F. Supp. 2d 641, 646 (S.D. Tex. 2014) (“The
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`citizenship of all unincorporated entities, including master limited partnerships, is determined by
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`the citizenship of each of its underlying members, not by its state of organization and the state in
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`which its principal place of business is located.”).
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`22.
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`The Original Petition alleges that many Plaintiffs are limited partnerships (“LPs”)
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`or limited liability corporations (“LLCs”). For many of the Plaintiffs that are LLCs and LPs,
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`Plaintiffs fail completely to allege the identity or citizenship of LLC members in a transparent
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`effort to shield their identity, hoping that will forestall a court recognizing federal jurisdiction
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`over the diverse plaintiffs.
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`23.
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`Counsel for BASF engaged in pre-litigation discussions with counsel for Plaintiffs
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`regarding Plaintiffs’ contention that there is a lack of diversity jurisdiction, and counsel for
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`Plaintiffs indicated that Plaintiff Hilltop Winery at Paka Vineyards, LLC (“Hilltop Winery”) is
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`the only Plaintiff that could destroy diversity, because it has members who can claim domicile in
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`a state where BASF has its principal place of business. Likewise, in the Original Petition, the
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`Plaintiffs
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`identify Hilltop Winery as the only Plaintiff who would
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`impact diversity
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`8
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`

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`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 9 of 18 PageID #: 9
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`jurisdiction. Original Petition ¶ 70 (alleging that “diversity jurisdiction does not exist” because
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`“Plaintiff Hilltop Winery at Paka Vineyards, LLC and Defendant BASF are both citizens of New
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`Jersey”).
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`24.
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`In addition to reviewing the allegation in the Complaint and pre-litigation
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`discussions with Plaintiffs’ counsel, BASF undertook an extensive search of publicly available
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`records and information filed with the Texas Secretary of State, the secretaries of state of several
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`other states, and other agencies.
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`25.
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`The factual allegations stated in Paragraphs 26-39 regarding Plaintiffs’ LP and
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`LLC membership, other than as cited as pled by Plaintiffs in the Original Petition, are on
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`information and belief as informed by the pre-litigation discussions with Plaintiffs’ counsel and
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`BASF’s investigation of all publicly available information.
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`26.
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`Plaintiff Gillmore Brothers, LP d/b/a Gillmore Brothers Vineyard is a Texas
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`limited partnership comprised of members all of whom are, and, at all times since the
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`commencement of this action have been, citizens of Texas. Original Petition ¶ 27. The general
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`partners of Gillmore Brothers, LP d/b/a Gillmore Brothers Vineyard are Jon Gillmore, James
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`Gillmore, and Patricia Brown, all of whom are, and, at all times since the commencement of this
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`action have been citizens of Texas. Gillmore Brothers, LP d/b/a Gillmore Brothers Vineyard
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`does not have any limited partners who are citizens of the same states as Defendants. Therefore,
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`for jurisdictional purposes, this Plaintiff is a citizen of Texas.
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`27.
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`Plaintiff AA Martin Partners, Ltd. is a Texas limited partnership comprised of
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`members who are, and, at all times since the commencement of this action have been, citizens of
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`Texas. Original Petition ¶ 32. The general partner of AA Martin Partners, Ltd. is AA Martin
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`Management, LLC. The members of AA Martin Management, LLC are Anndel Martin and
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`9
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`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 10 of 18 PageID #: 10
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`Andrew Martin, who are and, at all times since the commencement of this action have been,
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`citizens of Texas. Therefore, for jurisdictional purposes, this Plaintiff is a citizen of Texas.
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`28.
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`Plaintiff Alta Loma Vineyard Partnership is a Texas partnership consisting of
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`partners Ronnie Floyd, Bobbye Joe Floyd, Ronny Burran, and Gale Burran, all of whom are,
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`and, at all times since the commencement of this action have been, citizens of Texas. Original
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`Petition ¶ 4. Therefore, for jurisdictional purposes, this Plaintiff is a citizen of Texas.
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`29.
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`Plaintiff Sawyer Farm Partnership d/b/a The Family Vineyard is a Texas
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`partnership consisting of partners Arthur Flache, Elaine Shiver, and Scott Shiver, all of whom
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`are, and, at all times since the commencement of this action have been, citizens of Texas.
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`Original Petition ¶ 24. Therefore, for jurisdictional purposes, they are citizens of Texas.
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`30.
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`The following Plaintiffs are member-managed Texas limited liability companies
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`whose members are, and, at all times since the commencement of this action have been, residents
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`and citizens of Texas:
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`a.
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`b.
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`c.
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`d.
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`Bueno Suerte Vineyards, LLC, whose members are Bill Day and Martha Day,
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`persons who are domiciled in and citizens of Texas;
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`Cox Family Winegrowers, LLC d/b/a Cox Family Vineyards, whose members are
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`Charles R. Cox III and Jennifer H. Cox, persons who are domiciled in and citizens
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`of Texas;
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`LT Investment Group, LLC d/b/a Crazy Cluster Vineyard, whose members are
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`Daniel Leake and Taylor Tucker, persons who reside in and are citizens of Texas;
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`Donna J. Burgess Enterprises, LLC d/b/a My Covenant, whose member is Donna
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`Burgess, a person who is domiciled in and a citizen of Texas;
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`10
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`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 11 of 18 PageID #: 11
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`e.
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`f.
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`Texas Winery Owners Group, LLC, whose members are Bruce Bundrett and
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`William Blackmon, persons who are domiciled in and citizens of Texas;
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`Williams Ranch Vineyard, LLC, whose members are Shawn Williams and Kirk
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`Williams, persons who are domiciled in and citizens of Texas;
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`g.
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`Caprock Distributors, LLC, whose members are Texas citizen Gary Sowder and
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`Ponderosa Services, LLC. Ponderosa Services, LLC is a member-managed Texas
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`limited liability company consisting of members Tommy English and Darin
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`Epley, persons who are domiciled in and citizens of Texas;
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`h.
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`Newsom Family Farms, LLC, whose members are Steve Newsom, Raenee
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`Newsom, and Keegan Newsom, persons who are domiciled in and citizens of
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`Texas;
`
`i.
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`Texas Custom Wine Works, LLC, whose members are Michael Sipowicz, Dusty
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`Timmons, Jett Wilmeth, and Steve Talcott, persons who are domiciled in and
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`citizens of Texas.
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`Original Petition ¶¶ 8, 15, 16, 22, 43, 51, 53, 55, 58. Additionally, based on publicly available
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`resources and extensive discussions with Plaintiffs’ counsel, the aforementioned member-
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`managed Texas limited liability companies do not have any members who are citizens of the
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`same states as Defendants. Therefore, for jurisdictional purposes, the aforementioned Plaintiff
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`limited liability companies are citizens of Texas. Harvey v. Grey Wolf Drilling Co., 542 F.3d
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`1077, 1080 (5th Cir. 2008) (“[T]he citizenship of an LLC is determined by the citizenship of all
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`of its members.”).
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`31.
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`Based on publicly available resources and extensive discussions with Plaintiffs’
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`counsel, the following Plaintiffs are manager-managed Texas limited liability companies whose
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`11
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`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 12 of 18 PageID #: 12
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`members were at the time this action was commenced and remain residents and citizens of
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`Texas:
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`j.
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`Alegria de la Vida Vineyards, LLC, whose members are Albert M. Boring and
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`Tammy Boring, persons who are domiciled in and citizens of Texas;
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`k.
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`Bingham Family Vineyards, LLC, which is wholly owned by Texas limited
`
`liability company Bingham Family Cellars, LLC. Bingham Family Cellars, LLC
`
`consists of members Cliff Bingham and Clint Bingham, persons who are
`
`domiciled in and citizens of Texas;
`
`l.
`
`Castano Prado Vineyard, LLC, whose members are Tere Caswell and Thomas
`
`Hess, persons who are domiciled in and citizens of Texas;
`
`m.
`
`Narra Vineyards, LLC, whose members are Kokteswarama Narra and Nikhila
`
`Davis, persons who are domiciled in and citizens of Texas;
`
`Rowland Taylor Vineyards, LLC, whose member is H. Kerr Taylor, a person who
`
`is domiciled in and a citizen of Texas;
`
`Six Harts Vineyard, LLC, whose member is Kevin Hart, a person is domiciled in
`
`n.
`
`o.
`
`and a citizen of Texas.
`
`Original Petition ¶¶ 3, 6, 9, 34, 39, 42. Additionally, the aforementioned Texas limited liability
`
`companies do not have any members who are citizens of the same states as Defendants.
`
`Therefore, for jurisdictional purposes, the aforementioned Plaintiff limited liability companies
`
`are citizens of Texas.
`
`32.
`
`Plaintiff La Pradera Vineyards, LLC, is a Texas limited liability company whose
`
`members are Andy Timmons and Lauren Timmons, persons who are domiciled in and citizens of
`
`Texas, and Barbara Paddack, a person who is domiciled in and a citizen of Colorado. Original
`
`
`
`12
`
`

`

`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 13 of 18 PageID #: 13
`
`Petition ¶ 29. Therefore, for jurisdictional purposes, this Plaintiff is a citizen of both Texas and
`
`Colorado.
`
`33.
`
`Lahey Farms, LLC, is a sole proprietorship3 whose owner is Matt Adams, a
`
`person who is domiciled in and a citizen of Texas. Original Petition ¶ 30. Therefore, for
`
`jurisdictional purposes, it is a citizen of Texas.
`
`34.
`
`The following Plaintiffs are Texas corporations with principal places of business
`
`in Texas: Andy Timmons, Inc. d/b/a Lost Draw Vineyards; Cornelius Corporation; Lilli of the
`
`Vine Vineyards, Inc.; Reddy Vineyards, Inc.; Twin-T Vineyards, Inc.; Texas Wine Company,
`
`Inc.; McPherson Cellars, Inc.; and AKG Realty, Inc. Original Petition ¶¶ 2, 14, 31, 38, 48, 59,
`
`60, 62. A corporation is a citizen of the state in which it was incorporated and the state in which
`
`it has its principal place of business. 28 U.S.C. § 1332(c); see also Getty Oil Corp., a Div. of
`
`Texaco v. Ins. Co. of N. Am., 841 F.2d 1254, 1258 (5th Cir.1988). Therefore, for jurisdictional
`
`purposes, the aforementioned corporations are citizens of Texas.
`
`35.
`
`Plaintiff Carolyn Keane, Anna Winnell Young, and Marjorie Jones Partnership
`
`d/b/a Tucker Farms is a partnership whose partners are domiciled in and citizens of Texas and
`
`Florida. Original Petition ¶ 47. Therefore, for jurisdictional purposes, it is a citizen of Texas and
`
`Florida.
`
`36.
`
`The Tom and Janice Henslee Living Trust is a trust with the trustee domiciled in
`
`North Carolina. Original Petition ¶ 44. Therefore, for jurisdictional purposes, it is a citizen of
`
`North Carolina. Wardlaw Transp., LLC v. S. Tire Mart, LLC, No. 5:20-CV-1014-JKP, 2020 WL
`
`7872518, at *2 (W.D. Tex. Oct. 16, 2020) (“For purposes of diversity jurisdiction, courts
`
`
`3 Plaintiffs allege Lahey Farms, LLC is a Texas limited liability company. Original Complaint ¶ 30. However, no
`records or filings have been filed with the Texas Secretary of State for “Lahey Farms, LLC.”
`
`
`
`13
`
`

`

`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 14 of 18 PageID #: 14
`
`determine the citizenship of a trust ‘by the citizenship of its trustee.’” (quoting Wells Fargo
`
`Bank, N.A. v. Am. Gen. Life Ins. Co., 670 F. Supp. 2d 555, 561 (N.D. Tex. 2009))).
`
`37.
`
`Plaintiff Daniels Farmland Trust is a trust with its trustee domiciled in Colorado.
`
`Original Petition ¶ 18. Therefore, for jurisdictional purposes, it is a citizen of Colorado.
`
`Plaintiffs’ allegation says the trust’s “owner” is “located in Colorado.” BASF could not confirm
`
`Plaintiffs’ allegation based on publicly available information, but if Plaintiffs’ allegation is
`
`correct, Plaintiff Daniels Farmland Trust is diverse.
`
`38.
`
`Plaintiff Ledlie Powell and Danette Powell, Individually and as Trustees of the
`
`Ledlie S. and Danette Powell Revocable Trust d/b/a Newsom Powell Vineyard are domiciled in
`
`Oklahoma. Original Petition ¶ 56. Therefore, for jurisdictional purposes, they are citizens of
`
`Oklahoma.
`
`39.
`
`Plaintiff Hilltop Winery at Paka Vineyards, LLC is a member-managed Texas
`
`limited liability company comprised of the following members: Pavan Paka, Chandhana Paka,
`
`Kumar Paka, and Renuka Paka. Kumar Paka and Renuka Paka are domiciled in and citizens of
`
`New Jersey. Original Petition ¶ 35. Pavan Paka and Chandhana Paka are domiciled in and
`
`citizens of New York. Therefore, for jurisdictional purposes, Hilltop Winery is a citizen of New
`
`Jersey and New York.
`
`C.
`
`40.
`
`The Citizenship of Hilltop Winery Should Be Disregarded
`
`Because some members of Hilltop Winery are citizens of New Jersey and BASF
`
`has a principal place of business in New Jersey, Hilltop Winery is the only plaintiff that is not
`
`diverse.
`
`41.
`
`The claims of Hilltop Winery should be severed from this case, and its citizenship
`
`should be disregarded when determining this Court’s diversity jurisdiction, (a) to preserve
`
`
`
`14
`
`

`

`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 15 of 18 PageID #: 15
`
`Defendants’ right to removal of the individual and separate claims of the 60 diverse plaintiffs;
`
`and (b) so that the claims against them may be litigated in the MDL.4
`
`42.
`
`Federal courts have applied the doctrine of procedural misjoinder, as originally set
`
`forth in Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir. 1996), abrogated on other
`
`grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072-73 (11th Cir. 2000), and their
`
`inherent authority as set forth in Federal Rule of Civil Procedure 21, to sever the claims of a
`
`plaintiff when a lawsuit was brought by many plaintiffs and the citizenship of one plaintiff would
`
`destroy diversity and prevent the remaining claims from being transferred to an MDL. Bay
`
`Tobacco, LLC v. Bell Quality Tobacco Prod’s, LLC, 261 F. Supp. 2d 483, 490 (E.D. Va. 2003)
`
`(finding that diversity-defeating plaintiff was misjoined pursuant to Rules 20 and 21, severing
`
`claims of diversity-defeating plaintiff, and denying motion to remand); Accardo v. Lafayette Ins.
`
`Co., No. CIV.A. 06-8568, 2007 WL 325368, at *6 (E.D. La. Jan. 30, 2007) (finding that
`
`defendants established fraudulent misjoinder, and severing certain claims by select plaintiffs
`
`against a non-diverse defendant, because “the presence of the nondiverse defendant, Lafayette,
`
`does not serve to defeat federal jurisdiction in any of these actions in which a plaintiff has sued a
`
`diverse defendant, and the amount in controversy satisfies the $75,000 jurisdictional
`
`requirement”); In re Rezulin Prod. Liab. Litig., 168 F. Supp. 2d 136, 148 (S.D.N.Y. 2001)
`
`(finding misjoinder and severing the claims of one of many plaintiffs “for purposes of
`
`maintaining the defendants’ right to removal of the remainder of the action”); Graziose v. Am.
`
`Home Prod. Corp., 202 F.R.D. 638, 641 (D. Nev. 2001) (severing claims of six misjoined
`
`plaintiffs under Rule 21); Smith v. Rotorcraft Leasing Co., 2007 WL 1385873 (W.D. La. May 8,
`
`2007) (severing misjoined claims under Rule 21); Palermo v. Letourneau Techs., Inc., 542 F.
`
`4 Following the filing of this Notice of Removal, BASF will (1) file a motion to sever the individual and separated
`claim of Hilltop Winery; (2) tag this action with the JPML for transfer to the MDL; and (3) move this court to stay
`consideration of the matter pending a decision of the JPML whether to transfer the matter.
`
`
`
`15
`
`

`

`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 16 of 18 PageID #: 16
`
`Supp. 2d 499, 524 (S.D. Miss. 2008); Milliet v. Liberty Mut. Ins. Co., No. 07-7443, 2008 WL
`
`147821, *2 (E.D. La. Jan 11, 2008); Lyons v. Am. Tobacco Co., No. 96-0881-BH-S, 1997 U.S.
`
`Dist. LEXIS 18365, at *14-15 (S.D. Ala. Sept. 30, 1997) (severing claims of non-diverse
`
`plaintiffs in order to maintain diversity jurisdiction); Koch v. PLM Int’l, No. 97-0177-BH-C,
`
`1997 U.S. Dist. LEXIS 20111 (S.D. Ala. Sept. 24, 1997) (same). At least one federal court has
`
`recognized that “the threshold for finding that plaintiffs have been improperly misjoined should
`
`be lower than the threshold for finding that defendants have been improperly misjoined.” Tex.
`
`Instruments Inc. v. Citigroup Glob. Mkts., Inc., 266 F.R.D. 143, 150 (N.D. Tex. 2010) (citing In
`
`re Rezulin Prods. Liab. Litig., 168 F.Supp.2d at 147 (“Arguably a plaintiff’s right to choose
`
`among defendants and claims—the principal reason for imposing a strict standard of fraudulent
`
`joinder to effect removal—is not compromised where claims of co-plaintiffs are severed or
`
`dismissed.”)).
`
`43. Moreover, individual issues will predominate the Plaintiffs’ claims, such as
`
`farming practices, yield history, insurance claims, weather, and alleged sources, product
`
`identification, and application circumstances of dicamba (and other auxin herbicides) that may
`
`have moved off target. For these reasons, the claims of each one of these plaintiffs will need to
`
`be tried separately. Any non-individual issues can be handled more efficiently through the MDL,
`
`which is why courts have found that the presence of an MDL is a factor to be considered in
`
`assessing whether removal is proper in this context. Sutton v. Davol, Inc., 251 F.R.D. 500, 505
`
`(E.D. Cal. 2008; Sullivan v. Calvert Mem’l Hosp., 117 F. Supp. 3d 702, 707 (D. Md. 2015)
`
`(finding severance “particularly appropriate . . . because it would allow for the transfer of
`
`[plaintiff’s] claims against the [manufacturers] to the [MDL] . . .”) (internal quotation marks and
`
`citation omitted); Mayfield v. London Women’s Care, No. 15-19-DLB, 2015 WL 3440492, at *4
`
`
`
`16
`
`

`

`Case 1:21-cv-00338-MJT Document 1 Filed 07/02/21 Page 17 of 18 PageID #: 17
`
`(noting an “undeniable upside” if the surviving product liability claims were transferred to
`
`MDL); Joseph v. Baxter Int’l, Inc., 614 F. Supp. 2d 868, 872-73 (N.D. Ohio 2009) (finding that
`
`“plaintiffs will benefit from the MDL process” beca

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