United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
Thomas Blitz filed this putative class action against
Monsanto Company, alleging that the label on its product
includes the following false, misleading and deceptive
statement: “Glyphosate targets an enzyme found in
plants but not in people or pets.” (See Compl. (dkt.
#1) ¶ 34.) Presently before the court is defendant's
motion to dismiss. (Dkt. #10.) For the reasons discussed
below, that motion is granted in part and denied in part.
Thomas Blitz resides in Waunakee, Wisconsin. (Compl. (dkt.
#1) ¶ 22.) He purchased Roundup from a Home Depot store.
(Id.) Blitz alleges that the statement on the label
intimating that Roundup was safe to use around people and
pets induced him to purchase the product, and that he
suffered pecuniary loss as a result. (Id. at ¶
Company is a Delaware corporation headquartered in Missouri.
(Id. at ¶ 18.) Monsanto manufactures
Roundup®, a weed and grass-killing
product. (Compl. (dkt. #1) ¶ 1.) The active
ingredient in Roundup is glyphosate, (Id. at ¶
2), which kills weeds and grasses by inhibiting the enzyme
synthase, thus disrupting one of the steps in the so-called
“shikimate pathway.” (Id. at ¶ 29.)
label reads: “Did you know? Glyphosate targets an
enzyme found in plants but not in people or pets.”
(Id. at ¶ 35.) The Environmental Protection
Agency (“EPA”) has registered glyphosate as a
pesticide since 1974, and it renewed that registration in
1993. (Mot. to Dismiss Br. (dkt. #12) 12.) The EPA also
approved the Roundup labels at issue as (1) EPA Reg. No.
71995-25; (2) EPA Reg. No. 71995-29; and (3) EPA Reg. No.
71995-33. (Id.) Each label includes the same
statement “Glyphosate targets an enzyme found in plants
but not in people or pets.” (Id. at 13.)
parties appear to agree that EPSP is not found in human and
animal cells as evidenced by the absence of the shikimate
pathway. (See Br. in Opp. (dkt. #31) 6; accord Reply (dkt.
#41) 8.) Taking plaintiff's allegations as true, however,
EPSP is found in bacteria that inhabit the human and other
mammalian guts. (Compl. (dkt. #1) ¶ 30.)
seeks dismissal of plaintiff's claims for failure to
state a claim. A motion to dismiss under Rule 12(b)(6) is
designed to test the complaint's legal sufficiency. See
Fed.R.Civ.P. 12(b)(6). Dismissal is warranted only if no
recourse could be granted under any set of facts consistent
with the allegations. Ashcroft v. Iqbal, 556 U.S.
662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 563 (2007). “To survive a motion to dismiss under
Rule 12(b)(6), ” a plaintiff must allege sufficient
facts to “‘state a claim for relief that is
plausible on its face.'” Spierer v.
Rossman, 798 F.3d 502, 510 (7th Cir. 2015) (citing
Twombly, 550 U.S. at 570). As this court has previously
emphasized, the motion to dismiss phase of the proceedings
“is not an opportunity for the court to find facts or
weigh evidence.” My Health, Inc. v. Gen. Elec. Co.,
No. 15-CV-80-JDP, 2015 WL 9474293, at *2 (W.D. Wis. Dec.
28, 2015). The court must “tak[e] all factual
allegations as true and draw all reasonable inferences in
favor of the plaintiffs.” Pugh v. Tribune Co.,
521 F.3d 686, 692 (7th Cir. 2008).
makes four arguments in support of its motion to dismiss: (1)
federal law expressly preempts plaintiff's claims; (2)
the Roundup label is not false or misleading as a matter of
law; (3) the breach of express warranty claim fails because
plaintiff failed to give proper notice; and (4) the unjust
enrichment claim fails because plaintiff did not confer a
benefit on defendant. Defendant also challenges
plaintiff's request for certification of a national class
under Federal Rules of Civil Procedure 23(a) and (b)(3).
this is a court of limited jurisdiction, the court begins
there. The complaint originally alleged violations of six
different states' deceptive trade practices laws on
behalf of six putative class representatives, including
Blitz, a Wisconsinite, and five non-resident plaintiffs.
(Compl. (dkt. #1) ¶¶ 22-27.) However, in light of
the Supreme Court's decision in Bristol-Myers Squibb
v. Super. Ct. of California, 137 S.Ct. 1780 (2017), the
five non-resident plaintiffs were dismissed voluntarily. (See
dkt. #43.) Having rendered moot defendant's argument that
the court lacks personal jurisdiction over the claims of the
five non-Wisconsin plaintiffs, two jurisdictional questions
remain: (1) whether the court has personal jurisdiction over
the claims asserted by Blitz; and (2) whether the court has
personal jurisdiction over a nationwide class action.
named-plaintiff Blitz's claims, this court clearly has
personal jurisdiction. Blitz is a Wisconsin resident. (Compl.
(dkt. #1) ¶ 22.) He purchased Roundup from a Home Depot
store in Wisconsin. (Id.) Because that transaction
creates an “affiliation between the forum and the
underlying controversy, principally, [an] activity or an
occurrence that takes place in the forum State, ”
Bristol-Myers Squibb, 137 S.Ct. at 1781 (quoting Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011)), this court may exercise specific personal
jurisdiction over Blitz's claims against Monsanto.
Indeed, defendant does not contest that the court has
personal jurisdiction over Blitz's claims against it.
(Mot. to Dismiss Br. (dkt. #12) 9.)
plaintiff's apparent desire to have certified a
nationwide class of persons who purchased Roundup under Rules
23(a) and 23(b)(3) of the Federal Rules (Compl. (dkt. #1)
31), defendant argues that this court may not exercise
specific personal jurisdiction over the claims of
non-resident plaintiffs under Bristol-Myers Squibb, including
as members of a putative nationwide class. (Reply (dkt. #41)
7.) However, Bristol-Myers Squibb concerned the power of a
state court to exercise specific personal jurisdiction over
non-resident class members, expressly leaving open the
question “whether the Fifth Amendment imposes the same
restrictions on the exercise of personal jurisdiction by a
federal court.” Bristol-Myers Squibb, 137 S.Ct. at 1784
(emphasis added). Because this question need not be decided
now, and the court would no doubt benefit from greater
factual and legal briefing before resolving, the court will
also reserve judgment on the question of whether it can
exercise personal jurisdiction over the claims of a
nationwide class, at this time.
also argues that plaintiff's claims are preempted by the
Federal Insecticide, Fungicide, and Rodenticide Act
(“FIFRA”), 7 U.S.C. § 136 et seq., because
the EPA registered glyphosate and approved the Roundup label.
(Mot. to Dismiss Br. (dkt. #12) 27-30.) Under FIFRA, all
pesticides must be registered with the EPA before sale or
distribution. 7 U.S.C. § 136a(a). The EPA then registers
a pesticide if its labeling complies with FIFRA's
requirements, 7 U.S.C. § 136a(c)(5)(B), meaning that the
EPA will not register a “misbranded” pesticide. 7
U.S.C. § 136(q)(1)(A). A pesticide is
“misbranded” if “its labeling bears any
statement, design, or graphic representation relative thereto
or to its ingredients which is false or misleading in any
particular.” Id. Finally, registration
constitutes prima facie evidence that the pesticide's
labeling complies with FIFRA's requirements, but
registration may not serve as a defense to any FIFRA
violation. 7 U.S.C. § 136a(f)(2).
also includes an express preemption statement, which reads:
(a) In general
A State may regulate the sale or use of any federally
registered pesticide or device in the State, but only if and
to the extent the regulation does not permit any sale or use
prohibited by this subchapter.
Such State shall not impose or continue in effect any
requirements for labeling or packaging in addition to or
different from ...