JUDICIAL:
Rocky Mountain Farmers Union v. Corey, 913 F.3d 940 (9th Cir. 2019)
In 2013, the Ninth Circuit decided the first appeal in a long-running, complex challenge to California’s Low Carbon Fuel Standard (LCFS) under the Commerce Clause in Rocky Mountain Farmers Union v. Corey, rejecting some of Plaintiffs’ claims and remanding for further proceedings on others. Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013) reh’g en banc denied, 740 F.3d 507 (9th Cir. 2014), and cert. denied, ––– U.S. ––––, 134 S. Ct. 2875, 189 L.Ed.2d 835 (2014) (hereinafter Rocky Mountain I ). That challenge returns to Ninth Circuit today. In the intervening years, the LCFS has been repealed and replaced, and Plaintiffs’ claims have changed form, but both the regulations and the claims have the same core structure now as they did then.The Court holds that Plaintiffs’ challenges to previous versions of the LCFS have been made moot by their repeal, and we affirm the dismissal of their remaining claims against the present version of the LCFS as largely precluded by our prior decision in Rocky Mountain I. To the extent Plaintiffs raise new arguments on this appeal, the Court concluded that they are without merit.
IN RE: DICAMBA HERBICIDES LITIGATION, No. MDL 2820, 2019 WL 460500 (E.D. Mo. Feb. 6, 2019)
Plaintiffs in this Multi-district Litigation filed a 94-count Crop Damage Class Action Master Complaint against defendants Monsanto and BASF on August 1, 2018. Both defendants have moved to dismiss.
The alleged facts are taken as true for the purposes of the motions to dismiss. Plaintiffs are twenty-one soybean farmers from eight states: Arkansas, Illinois, Kansas, Mississippi, Missouri, Nebraska, South Dakota, and Tennessee. Each plaintiff alleges that its soybean crop was damaged by the herbicide dicamba when neighboring farmers planted genetically modified dicamba-resistant seeds and sprayed that crop with dicamba. Plaintiffs challenge Monsanto’s commercialization of its dicamba-resistant cotton seeds in 2015 and soybean seeds in 2016 (collectively, “Xtend seeds”). The United States Department of Agriculture (“USDA”) deregulated (or permitted for sale) the dicamba-resistant seeds in January 2015. However, plaintiffs contend that their commercialization was premature and improper because the United States Environmental Protection Agency (“EPA”) had not yet approved a dicamba herbicide for use over the top of crops grown from those seeds. Plaintiffs add that the dicamba-resistant seeds were also tolerant to application of other herbicides, like Monsanto’s glyphosate-based Roundup-branded herbicides.
Bader Farms, a peach-growing plaintiff in this MDL (which has not joined the Master Complaint), filed one of the first complaints of its kind in 2016, alleging that neighboring farms planted Xtend seeds and then sprayed dicamba over the top of that crop. Bader alleged that the dicamba then drifted to the Bader peach orchard, damaging many trees and seriously diminishing the year’s peach crop. Bader filed its lawsuit, eventually added BASF as a defendant, and this Court denied both defendants’ motion to dismiss and Monsanto’s motion for partial summary judgment. As stated, Bader grows peaches, not soybeans, and Bader is not part of the Master Complaint in this MDL.
Only one plaintiff in the Master Complaint brings claims related to 2016, the year Monsanto sold Xtend seed but did not sell the corresponding herbicide. That plaintiff, Jerry Franks of Missouri, represents himself and a class of “Missouri 2016” plaintiffs.
The other plaintiffs allege that in 2017 they grew non-dicamba-tolerant soybeans that were damaged by dicamba herbicide used on fields that were planted with dicamba-tolerant Xtend seeds. In 2017, however, the EPA approved Monsanto and BASF’s new low-volatility dicamba herbicides (respectively named XtendiMax and Engenia). Earlier versions of dicamba had been on the market since the 1960s (though none manufactured by Monsanto), but it was not approved for in-crop use due to its volatility and propensity to drift (sometimes taking other herbicides with it), meaning it could cause damage to other, off-target growing plants. XtendiMax and Engenia were developed to address original dicamba’s volatility problem so that they could be used over-the-top of crops, during the growing season, without harming nearby, non-tolerant crops.
The 2017 plaintiffs (that is, all plaintiffs other than Franks), challenge the design and sale of Monsanto and BASF’s dicamba herbicide products. Plaintiffs contend, despite defendants’ representations to the contrary, that both are unsuitable for in-crop use because they too, like the earlier versions of dicamba, are volatile and prone to move off-target and damage nearby, sensitive crops. The claim, then, is that the defendants, in their pursuit of increased profits, pushed the Xtend seeds and XtendiMax and Engenia herbicides forward and misrepresented the system as safe, knowing that non-dicamba-resistant crops and plants would be damaged. In fact, plaintiffs contend that such damage was to defendants’ benefit, as it would cause farmers to defensively purchase dicamba-resistant seed to avoid damages.
Each plaintiff, on behalf of itself and a state-wide class, brings claims under its own state’s laws, and they also seek to represent a nationwide class pursuing claims under the Lanham Act. Defendants have moved to dismiss.
The Court orders that defendant Monsanto’s motion to dismiss (#146) and defendant BASF’s motion to dismiss (#147) are GRANTED in part and DENIED in part.
Further they ordered that Count 1’s nationwide class action claims against defendant BASF are DISMISSED.
Additionally that Strict Liability – Ultrahazardous Activity Counts (Counts 2, 14, 25, 37, 50, 60, 71, and 84) are DISMISSED.
Further that plaintiffs’ Trespass Counts (Counts 12, 21, 34, 49, 57, 67, 81, 93) are DISMISSED.
Additionally, that plaintiffs’ Nuisance Counts (Counts 22, 35, 41, 68, and 82) are DISMISSED.
Further that the motion to dismiss plaintiffs’ Conspiracy Counts is DENIED in part as those Counts relate to underlying intentional torts, and this Court withholds ruling on the Conspiracy Counts based on underlying negligence claims.
Additionally, that plaintiffs’ Failure to Warn Counts regarding labeling are dismissed only to the extent they exceed the parameters of FIFRA, as explained in the Memorandum.
Further that plaintiffs’ Nebraska Consumer Protection Act claim (Count 69) is DISMISSED.
Additionally that plaintiffs’ Negligent Training claims are DISMISSED to the extent they do not relate to the training of defendants’ employees or agents.
Further that plaintiffs’ Kansas warranty-related counts (Counts 31, 32, and 33) are DISMISSED.
Additionally that plaintiffs’ Breach of Implied Warranty Counts in Arkansas, South Dakota, and Tennessee (Counts 9, 10, 78, 79, 90, and 91) are DISMISSED.
U.S. Equal Employment Opportunity Comm’n v. Glob. Horizons, Inc., No. 16-35528, 2019 WL 453482 (9th Cir. Feb. 6, 2019)
Green Acre Farms and Valley Fruit Orchards (the Growers) are fruit growers in the State of Washington. In 2003, the Growers experienced labor shortages and entered into agreements with Global Horizons, Inc., a labor contractor, to obtain temporary workers for their orchards. With the Growers’ approval, Global Horizons recruited workers from Thailand and brought them to the United States under the H-2A guest worker program, which allows agricultural employers to hire foreign workers for temporary and seasonal work.
In 2006, two of the Thai workers filed discrimination charges against the Growers and Global Horizons with the Equal Employment Opportunity Commission (EEOC). After an investigation, the EEOC brought this action under Title VII of the Civil Rights Act of 1964. The EEOC alleged, among other things, that the Growers and Global Horizons subjected the Thai workers to poor working conditions, substandard living conditions, and unsafe transportation on the basis of their race and national origin. The district court entered a default judgment against Global Horizons after it discontinued its defense in the action; Global Horizons was financially insolvent by the time the EEOC brought suit. This case thus focuses solely on the liability of the Growers.
Title VII imposes liability for discrimination on “employer[s].” 42 U.S.C. § 2000e-2(a). The threshold question raised in this appeal is whether the Growers and Global Horizons were joint employers of the Thai workers for Title VII purposes.
At the motion to dismiss stage, the district court divided the EEOC’s allegations into those involving “orchard-related matters” (referring to working conditions at the orchards) and those involving “non-orchard-related matters” (referring to housing, meals, transportation, and payment of wages). The district court then held that the EEOC had plausibly alleged the Growers were joint employers of the Thai workers as to orchard-related matters, but not as to non-orchard-related matters. The court accordingly dismissed all allegations against the Growers relating to non-orchard-related matters.
Following that decision, the district court (1) granted in part the Growers’ motions to dismiss; (2) denied in part the EEOC’s motions to compel discovery; (3) granted the Growers’ motion for summary judgment; and (4) granted the Growers’ motions for attorney’s fees on the ground that the EEOC’s claims were frivolous and without foundation from the outset. The EEOC challenges each of these orders on appeal.
The Court reverses the district court’s dismissal of the EEOC’s allegations regarding non-orchard-related matters, which in turn affects each of the other decisions under review.
The court reverse each of the orders challenged on appeal. First, we reverse the district court’s order granting in part the Growers’ motions to dismiss. The court erred by dismissing the EEOC’s disparate treatment claim (and the related pattern-or-practice claim) on the ground that the Growers were not joint employers of the Thai workers as to non-orchard-related matters. (The EEOC does not challenge the dismissal of its retaliation claim or the related pattern-or-practice claim.) On remand, the district court is instructed to grant the EEOC leave to amend its complaint with respect to Valley Fruit’s liability as to non-orchard-related matters. The court should then reconsider the disparate treatment claim (and the related pattern-or-practice claim) in light of the EEOC’s allegations regarding both orchard-related and non-orchard-related matters.
PACA Tr. Creditors of Lenny Perry’s Produce, Inc. v. Genecco Produce Inc., 913 F.3d 268 (2d Cir. 2019)
The plaintiffs and the defendants are creditors of debtor Lenny Perry’s Produce, Inc. (“LPP”). Between 2005 and 2008, defendant Genecco Produce, Inc., (“GPI”) and debtor LPP regularly sold produce to one another. Because the goods were perishable agriculturalcommodities, these transactions were governed by the federal Perishable Agricultural Commodities Act, 7 U.S.C. § 499 (“PACA”).
The Circuit Court found the district court did not err in allowing the defendants to recover a pro rata share of the PACA Trust. It is undisputed that the defendants complied with all statutory requirements to preserve their PACA claims: In each invoice that GPI sent to LPP, it provided written notice of intent to preserve its PACA rights. It is also undisputed that the defendants filed a proof of claim in bankruptcy court before the Claims Procedure Order was issued, for an offset in the amount of $263,061.92. Having filed an offset claim, the defendants reasonably thought that their debt to LPP was not a “receivable” under the Claims Procedure Order and that they were not required to submit a PACA proof of claim. The bankruptcy court and district court properly concluded that, in light of ambiguities in the Claims Procedure Order and the novelty of the legal issues presented, the defendants had a good-faith basis to pursue their claims through a bankruptcy offset in lieu of a PACA claim.
Moreover, the statute states, in relevant part, that perishable goods and any receivables from their sale are held in trust “for the benefit of all unpaid suppliers or sellers of such commodities or agents involved in the transaction, until full payment of the sums owing in connection with such transactions has been received by such unpaid suppliers, sellers, or agents.” 7 U.S.C. § 499e(c)(2) (emphasis added). The defendants are unpaid suppliers of produce. Denying them a pro rata share of the PACA Trust, even though they preserved their PACA claims and filed a proof of claim in bankruptcy court, would be, we think, inconsistent with the statutory text and the district court’s interpretation of its own Claims Procedure Order. The Court conclude that the district court did not err in permitting the defendants to recover a pro rata share of the PACA Trust.
The Court having considered the parties’ other arguments on appeal and conclude that they are without merit. The Circuit Court affirm the judgment of the district court.
KIRK RAAB, Plaintiff, v. KENNETH FRANK, Defendant & Third-Party Plaintiff-Appellant (David A. Grossen & Virginia J. Grossen, Third-Party Defendants-Appellees)., 2019 IL App (2d) 171040
The plaintiff, Kirk Raab of the Jo Daviess County Sheriff’s Department, was driving his squad car west on Stagecoach Road in Scales Mound when he collided with a cow owned by the defendant, Kenneth Frank. Raab filed an action against Frank for injuries he suffered during the collision. Frank thereafter filed a third-party complaint for contribution against his neighbors, David A. and Virginia J. Grossen, asserting that the cow had gotten out through a fence they had failed to maintain. The trial court subsequently granted the Grossens’ motion for summary judgment. Frank appeals from that order. The court affirm in part, reverse in part, and remand for additional proceedings..
The Court affirms the judgment of the circuit court of Jo Daviess County granting summary judgment to the Grossens on count II of Frank’s third-party complaint, regarding a violation of the Fence Act. We reverse the court’s judgment granting summary judgment to the Grossens on counts I and III of Frank’s third-party complaint and remand for additional proceedings on those counts.
Mittelstadt v. Perdue, 913 F.3d 626 (7th Cir. 2019)
Mark Mittelstadt owned a tract of land in Richland County, Wisconsin, that was enrolled in the Conservation Reserve Program (“CRP”), administered by the United States Department of Agriculture (“USDA”), from 1987 to 2006. Participants in the CRP agree to remove environmentally sensitive land from agricultural production in return for annual rental payments from the USDA. In 2006, the agency denied Mr. Mittelstadt’s application to reenroll his land in the CRP. After exhausting his administrative appeals, he brought this action against the Secretary of the USDA (“the Secretary”). He asserted one claim under Section 702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., challenging the Secretary’s final decision denying reenrollment, and one common law claim for breach of contract. Mr. Mittelstadt moved for summary judgment in the district court, seeking an order directing reenrollment of his land in the CRP and awarding monetary relief for the alleged breach of contract. The district court denied his motion for summary judgment, affirmed the Secretary’s rulings, and entered judgment in favor of the Secretary on Mr. Mittelstadt’s APA and breach of contract claims. Mr. Mittelstadt now appeals the district court’s decision.
circuit court affirms the judgment of the district court.
REGULATORY:
Final rule: Animal and Plant Health Inspection Service, USDA. This rule contains formatting changes to subpart references to bring the headings into conformance with the Office of Federal Register requirements. In addition, we are updating authority citations and making minor editorial changes to the regulations. Info HERE
Final rule: Food Safety and Inspection Service, USDA The Food Safety and Inspection Service (FSIS) is amending the Federal meat inspection regulations by removing the provision requiring the cleaning of hog carcasses before any incision is made preceding evisceration. Other regulations require carcass cleaning, the maintenance of sanitary conditions, and the prevention of hazards reasonably likely to occur in the slaughter process. Removal of this unnecessary provision will enable official establishments to adopt more efficient, effective procedures under other regulations to ensure that carcasses and parts are free of contamination. Info HERE
Notice of meeting: Forest Service, USDA; The Black Hills National Forest Advisory Board (Board) will meet in Rapid City, South Dakota. The Board is established consistent with the Federal Advisory Committee Act of 1972, the Forest and Rangeland Renewable Resources Planning Act of 1974, the National Forest Management Act of 1976, and the Federal Public Lands Recreation Enhancement Act. Additional information concerning the Board, including the meeting summary/minutes, can be found by visiting the Board’s website at: http://www.fs.usda.gov/main/blackhills/workingtogether/advisorycommittees. Info HERE
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