defendant monsanto companys notice of filing of notice of removal

Cal. Super. - 1st Dist.March 23, 2020

MONSANTO COMPANY’S NOTICE OF FILING OF NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Richard A. Clark (SBN 39558) Steven R. Platt (SBN 245510) PARKER, MILLIKEN, CLARK, O’HARA & SAMUELIAN, P.C. 555 S. Flower St., 30th Floor Los Angeles, CA 90071-2440 Telephone: (213) 683-6500 Facsimile: (213) 683-6669 rclark@pmcos.com splatt@pmcos.com Attorneys for Defendant MONSANTO COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO MIKE SAPINSKY, Plaintiffs, vs. MONSANTO COMPANY, et al, Defendant. Case No. CGC-19-580802 DEFENDANT MONSANTO COMPANY’S NOTICE OF FILING OF NOTICE OF REMOVAL Complaint Filed: November 5, 2019 Trial Date: None set ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 01/13/2020 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk MONSANTO COMPANY’S NOTICE OF FILING OF NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE (in accordance with 28 U.S.C. §1446(d)) that defendant Monsanto Company has removed this action to the United States District Court for the Northern District of California (“District Court”) by filing the attached Notice of Removal with the Clerk of the District Court on January 13, 2020. The Superior Court of the State of California may proceed no further unless or until this case is remanded. DATED: January 13, 2020 PARKER, MILLIKEN, CLARK, O'HARA & SAMUELIAN, a Professional Corporation /s/ Steven R. Platt Richard A. Clark (SBN 039558) Steven R. Platt (SBN 245510) Attorneys for Defendant, MONSANTO COMPANY ATTACHMENT DEFENDANT MONSANTO COMPANY’S NOTICE OF REMOVAL OF SAPINSKY LAWSUIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARNOLD & PORTER KAYE SCHOLER S. Zachary Fayne (CA Bar No. 307288) (zachary.fayne@arnoldporter.com) Three Embarcadero Center, 10th Floor San Francisco, CA 94111-4024 Tel: 415-471-3100 Fax: 415-471-3400 HOLLINGSWORTH LLP Eric G. Lasker (pro hac vice anticipated) (elasker@hollingsworthllp.com) Martin C. Calhoun (pro hac vice anticipated) (mcalhoun@hollingsworthllp.com) 1350 I St., N.W. Washington, DC 20005 Tel: 202-898-5800 Fax: 202-682-1639 Attorneys for Defendant MONSANTO COMPANY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Mike Sapinsky, Plaintiff, v. Monsanto Company; Wilbur-Ellis Company LLC; Wilbur-Ellis Nutrition, LLC (formerly Wilbur-Ellis Feed, LLC); and Does 1-100 inclusive, Defendants. Case No. 3:20-cv-00257 MONSANTO COMPANY’S NOTICE OF REMOVAL OF SAPINSKY LAWSUIT By filing this Notice of Removal and related papers, defendant Monsanto Company (“Monsanto”) hereby removes this lawsuit to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 (and any other applicable laws). INTRODUCTION 1. This lawsuit seeks damages for non-Hodgkin’s lymphoma (“NHL”) and other personal injuries allegedly caused by plaintiff Mike Sapinsky’s exposure to Monsanto’s Roundup®-branded herbicides, which have glyphosate as their active ingredient. Multidistrict Case 3:20-cv-00257 Document 1 Filed 01/13/20 Page 1 of 8 2 DEFENDANT MONSANTO COMPANY’S NOTICE OF REMOVAL OF SAPINSKY LAWSUIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 litigation proceedings involving numerous other Roundup® lawsuits are pending in this Court. In re Roundup Prods. Liab. Litig., Case No. 16-md-02741-VC. 2. Plaintiff is a California citizen and therefore of diverse citizenship from Monsanto. Plaintiff tried to avoid complete diversity and defeat Monsanto’s right to remove by asserting claims against two in-forum California companies - Wilbur-Ellis Company LLC (“Wilbur-Ellis Company”) and Wilbur-Ellis Nutrition, LLC, formerly known as Wilbur-Ellis Feed, LLC (“Wilbur-Ellis Nutrition/Feed”) - that plaintiff alleges, upon mere information and belief, distributed or sold the Roundup®-branded herbicides that caused his personal injuries. 3. However, this removal-prevention strategy fails because plaintiff has no viable claim against Wilbur-Ellis Company or Wilbur-Ellis Nutrition/Feed. Wilbur-Ellis Nutrition/Feed is fraudulently joined because it has never designed, manufactured, distributed, or sold Roundup®-branded herbicides. Wilbur-Ellis Company is fraudulently joined because plaintiff used Roundup®-branded herbicides for residential use, but Wilbur-Ellis Company has never sold Roundup®-branded herbicides created and designed for the residential-lawn-and-garden market. 4. As discussed in more detail below, this Court should hold that it has subject matter jurisdiction and that removal is proper here based on complete diversity of citizenship because plaintiff fraudulently joined Wilbur-Ellis Company and Wilbur-Ellis Nutrition/Feed, which means that the presence of those in-forum defendants must be disregarded when the Court evaluates the issue of diversity jurisdiction and the propriety of removal notwithstanding the presence of those California defendants. BACKGROUND AND PROCEDURAL HISTORY 5. In November 2019, plaintiff commenced this lawsuit by filing a Complaint in the Superior Court of the State of California for San Francisco County, captioned Sapinsky v. Monsanto Company, et al., Case No. CGC-19-580802 (the “State Court Action”). Copies of “all process, pleadings, and orders served upon [Monsanto],” 28 U.S.C. § 1446(a), in the State Court Action are attached collectively as Exhibit 1. 6. Plaintiff sued Monsanto, Wilbur-Ellis Company, and Wilbur-Ellis Nutrition/Feed. The Complaint asserts various product liability claims and seeks damages for NHL and other Case 3:20-cv-00257 Document 1 Filed 01/13/20 Page 2 of 8 3 DEFENDANT MONSANTO COMPANY’S NOTICE OF REMOVAL OF SAPINSKY LAWSUIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 injuries allegedly caused by Monsanto’s Roundup®-branded herbicides. 7. The Complaint lumps Wilbur-Ellis Company and Wilbur-Ellis Nutrition/Feed together and refers to them collectively as “Wilbur-Ellis.” Complaint ¶¶ 29-30. The Complaint alleges that “Wilbur-Ellis is a main distributor of Roundup®, and, upon information and belief, distributed Roundup® used by Plaintiff.” Id. ¶ 30 (emphasis added); see also id. ¶ 108 (“On information and belief, Wilbur-Ellis was one of the distributors providing Roundup® and other glyphosate-containing products used by the Plaintiff.” (emphasis added)). BASIS FOR REMOVAL - DIVERSITY JURISDICTION I. Substantive Requirements For Removal Are Satisfied. 8. Although complete diversity of citizenship usually is required for a federal court to have diversity jurisdiction, “one exception to the requirement of complete diversity is where a non-diverse defendant has been ‘fraudulently joined.’” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). A defendant removing a lawsuit from state court based on fraudulent joinder of a co-defendant is required to show that there is no possibility that the state court would hold the co-defendant liable. Grancare, LLC v. Thrower, 889 F.3d 543, 548 (9th Cir. 2018). When fraudulent joinder applies - i.e., when “the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state,” Morris, 236 F.3d at 1067 (quotation marks omitted) - the fraudulently joined defendant’s “presence in the lawsuit is ignored” for purposes of determining whether the court has jurisdiction based on diversity of citizenship, id. Moreover, “[f]raudulent joinder claims may be resolved by ‘piercing the pleadings’ and considering summary judgment-type evidence such as affidavits and deposition testimony.” Id. at 1068 (quoting Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995)); see McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987) (“The defendant seeking removal to the federal court is entitled to present the facts showing the joinder to be fraudulent.”). Fraudulent joinder also renders the so-called “forum defendant rule” inapplicable because that statutory provision applies only to “properly joined” defendants. 28 U.S.C. § 1441(b)(2). 9. In this case, plaintiff sued Wilbur-Ellis Company and Wilbur-Ellis Nutrition/Feed Case 3:20-cv-00257 Document 1 Filed 01/13/20 Page 3 of 8 4 DEFENDANT MONSANTO COMPANY’S NOTICE OF REMOVAL OF SAPINSKY LAWSUIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in the hope that adding claims against those California companies would prevent removal due to lack of diversity jurisdiction and/or due to the forum defendant rule. However, as discussed below, those California defendants have been fraudulently joined. 10. Plaintiff is, and was at the time the State Court Action was filed, a citizen of the State of California. Complaint ¶ 17. 11. Monsanto is, and was at the time the State Court Action was filed, a corporation organized under the laws of the State of Delaware with its principal place of business in the State of Missouri. Accordingly, Monsanto is deemed to be a citizen of Delaware and Missouri for purposes of federal diversity jurisdiction. 12. Wilbur-Ellis Company is, and was at the time the State Court Action was filed, a limited liability company whose sole member is (and was at the time this lawsuit was filed) Wilbur-Ellis Holdings II, Inc. See Declaration of Scott Hushbeck ¶ 4 (“Hushbeck Declaration”) (attached as Exhibit 2). 13. Wilbur-Ellis Nutrition/Feed is, and was at the time the State Court Action was filed, a limited liability company whose sole member is (and was at the time this lawsuit was filed) Wilbur-Ellis Holdings II, Inc. See Declaration of George Arkoosh ¶ 5 (“Arkoosh Declaration”) (attached as Exhibit 3). 14. Wilbur-Ellis Holdings II, Inc. is, and was at the time the State Court Action was filed, a corporation organized under the laws of the State of Delaware with its principal place of business in the State of California. See Arkoosh Declaration ¶ 6; Hushbeck Decl. ¶ 5. Accordingly, Wilbur-Ellis Holdings II, Inc. is deemed to be a citizen of Delaware and California for purposes of federal diversity jurisdiction. 15. Wilbur-Ellis Company and Wilbur-Ellis Nutrition/Feed both are deemed to be citizens of the same states as their member Wilbur-Ellis Holdings II, Inc. - Delaware and California - for purposes of federal diversity jurisdiction. 16. Therefore, disregarding the two California defendants - which were fraudulently joined by plaintiff - means that there is complete diversity of citizenship and that the forum defendant rule does not apply. Case 3:20-cv-00257 Document 1 Filed 01/13/20 Page 4 of 8 5 DEFENDANT MONSANTO COMPANY’S NOTICE OF REMOVAL OF SAPINSKY LAWSUIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Plaintiff fraudulently joined Wilbur-Ellis Nutrition/Feed. 17. Wilbur-Ellis Nutrition/Feed is (and has been) in the business of ensuring that animals receive customized, high-quality, dependable nutrients. Arkoosh Declaration ¶ 7. Wilbur-Ellis Nutrition/Feed has never designed, manufactured, distributed, or sold Roundup®- branded herbicides or any other herbicides. Id. Therefore, plaintiff does not have any viable claims against Wilbur-Ellis Nutrition/Feed. See, e.g., Martinez v. McKesson Corp., No. 3:15-cv- 02903-H-JLB, 2016 WL 5930271 (S.D. Cal. Apr. 7, 2016) (holding that California defendant was fraudulently joined because it did not manufacture Mirena and did not distribute plaintiff’s Mirena); Tucker v. McKesson Corp., No. C 10-2981 SBA, 2011 WL 4345166 (N.D. Cal. Sept. 14, 2011) (holding that California defendant was fraudulently joined because it did not distribute morphine tablets to pharmacy where decedent obtained morphine tablets at issue in lawsuit); Vu v. Ortho-McNeil Pharm., Inc., 602 F. Supp. 2d 1151, 1154-55 (N.D. Cal. 2009) (holding that California defendant was fraudulently joined because she did not market or distribute Children’s Tylenol Plus Multi-Symptom Cold medicine); Aronis v. Merck & Co., No. Civ. S-05-0486 WBS DAD, 2005 WL 5518485 (E.D. Cal. May 3, 2005) (holding that California defendant was fraudulently joined because plaintiff alleged merely that defendant was a major distributor of Vioxx without connecting defendant to plaintiff’s injuries). 18. For the foregoing reasons, the Court should hold that plaintiff fraudulently joined Wilbur-Ellis Nutrition/Feed and should disregard the citizenship of that defendant when assessing whether this lawsuit has been properly removed. B. Plaintiff fraudulently joined Wilbur-Ellis Company. 19. Wilbur-Ellis Company is (and has been) in the business of, among other things, distributing and selling certain pesticides and herbicides, including certain glyphosate-based herbicide products. Hushbeck Declaration ¶ 6. Glyphosate-based herbicide products (including Monsanto’s glyphosate-based herbicides) are designed for and sold to three different markets: (a) the agricultural market; (b) the residential-lawn-and-garden market; and (c) what Wilbur-Ellis Company calls the professional market, which involves herbicide products that are designed for and sold to, for example, landscaping companies, golf courses, schools, or state and local Case 3:20-cv-00257 Document 1 Filed 01/13/20 Page 5 of 8 6 DEFENDANT MONSANTO COMPANY’S NOTICE OF REMOVAL OF SAPINSKY LAWSUIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 government agencies (to maintain roads, parks, and/or rights-of-way). Id.; see Declaration of Steven Gould ¶ 5 (“Gould Declaration”) (attached as Exhibit 4). That third market is what Monsanto calls the industrial, turf, and ornamental (“IT&O”) market. Hushbeck Declaration ¶ 6; Gould Declaration ¶ 5. 20. Wilbur-Ellis Company is (and has been) in the business of distributing and selling only certain categories of Monsanto glyphosate-based herbicide products - namely, herbicides designed for the agricultural market and herbicides designed for the IT&O/professional market. Gould Declaration ¶ 6; Hushbeck Declaration ¶ 7. 21. Wilbur-Ellis Company does not sell (and has never sold) Monsanto glyphosate- containing herbicides that have been created and designed for the residential-lawn-and-garden market. Gould Declaration ¶ 6; Hushbeck Declaration ¶ 7. For example, Wilbur-Ellis Company has never played any role in the chain of distribution leading to Monsanto’s glyphosate-based, lawn-and-garden herbicides being sold at national retail stores like Home Depot, Lowe’s, Target, Walmart, Costco, or Ace Hardware. Hushbeck Declaration ¶ 7; see Gould Declaration ¶ 6. 22. Moreover, Wilbur-Ellis Company is not (and has never been) the sole or exclusive distributor of Monsanto’s glyphosate-based herbicides in the State of California. Hushbeck Declaration ¶ 8; Gould Declaration ¶ 7. There are (and have been) other distributors of Monsanto’s glyphosate-based herbicides in California. Gould Declaration ¶ 7. Wilbur-Ellis Company has never been the largest distributor of those herbicides in California. Id. ¶ 7. 23. Wilbur-Ellis Company has never designed or manufactured Monsanto’s glyphosate-based herbicides. Hushbeck Declaration ¶ 9; Gould Declaration ¶ 8. 24. Plaintiff used Roundup®-branded herbicides for residential use. Complaint ¶¶ 2, 17, 112. Thus, plaintiff does not have viable claims against Wilbur-Ellis Company. See supra Paragraph 17 (citing fraudulent joinder cases). 25. For the foregoing reasons, the Court should hold that plaintiff fraudulently joined Wilbur-Ellis Company and should disregard the citizenship of that defendant when assessing whether this lawsuit has been properly removed. * * * * Case 3:20-cv-00257 Document 1 Filed 01/13/20 Page 6 of 8 7 DEFENDANT MONSANTO COMPANY’S NOTICE OF REMOVAL OF SAPINSKY LAWSUIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26. The Complaint seeks compensatory and punitive damages based on allegations that Monsanto’s Roundup®-branded herbicides caused plaintiff to develop cancer (NHL) and other injuries. Therefore, it is plausible from the face of the Complaint that plaintiff seeks damages in excess of $75,000, exclusive of interest and costs, which satisfies the jurisdictional amount-in-controversy requirement. 28 U.S.C. § 1332(a); see Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554 (2014) (“[A] defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.”); see also Ross v. First Family Fin. Servs., Inc., No. 2:01CV218-P-B, 2002 WL 31059582, at *8 (N.D. Miss. Aug. 29, 2002) (“[U]nspecified claims for punitive damage sufficiently serve to bring the amount in controversy over the requisite jurisdictional threshold set out in 28 U.S.C. § 1332.”). In fact, other lawsuits seeking damages for NHL allegedly caused by Roundup®-branded herbicides have been filed against Monsanto in this Court and other federal courts asserting jurisdiction under Section 1332(a) and alleging damages in excess of $75,000, exclusive of interest and costs. 27. Thus, this Court has original subject matter jurisdiction over plaintiff’s claims based on Section 1332(a) because there is complete diversity of citizenship between plaintiff and Monsanto (disregarding the citizenship of the fraudulently joined California defendants) and because the amount in controversy exceeds $75,000, exclusive of interest and costs.1 II. Procedural Requirements For Removal Are Satisfied. 28. The Superior Court of the State of California for San Francisco County is located within the Northern District of California. Therefore, removal to this Court satisfies the venue requirements of 28 U.S.C. § 1446(a). 29. Monsanto received notice of process in the State Court Action on December 13, 2019. This Notice of Removal is timely because it is being filed within thirty days of that date, see, e.g., 28 U.S.C. § 1446(b)(1); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 1 The citizenship of “Doe” defendants must be disregarded when determining whether this lawsuit is removable based on § 1332(a). See 28 U.S.C. § 1441(b)(1). Case 3:20-cv-00257 Document 1 Filed 01/13/20 Page 7 of 8 8 DEFENDANT MONSANTO COMPANY’S NOTICE OF REMOVAL OF SAPINSKY LAWSUIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 344 (1999), taking into account the additional time allowed by Rule 6 of the Federal Rules of Civil Procedure when the last day is a weekend day. 30. Wilbur-Ellis Company’s and Wilbur-Ellis Nutrition/Feed’s consent to removal are not required because they have not been “properly joined,” 28 U.S.C. § 1446(b)(2)(A). 31. The written notice required by 28 U.S.C. § 1446(d) will be promptly filed in the Superior Court of the State of California for San Francisco County and will be promptly served on plaintiff. 32. Monsanto does not waive any legal defenses and expressly reserves its right to raise any and all legal defenses in subsequent proceedings. 33. If any question arises as to the propriety of this removal, Monsanto requests the opportunity to present written and oral argument in support of removal. CONCLUSION For the foregoing reasons, Monsanto removes this lawsuit to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 (and any other applicable laws). DATED: January 13, 2020 Respectfully submitted, /s/ S. Zachary Fayne__________________ S. Zachary Fayne (CA Bar No. 307288) (zachary.fayne@arnoldporter.com) ARNOLD & PORTER KAYE SCHOLER Three Embarcadero Center, 10th Floor San Francisco, CA 94111-4024 Tel: 415-471-3100 Fax: 415-471-3400 Eric G. Lasker (pro hac vice anticipated) (elasker@hollingsworthllp.com) Martin C. Calhoun (pro hac vice anticipated) (mcalhoun@hollingsworthllp.com) HOLLINGSWORTH LLP 1350 I St., N.W. Washington, DC 20005 Tel: 202-898-5800 Fax: 202-682-1639 Attorneys for Defendant MONSANTO COMPANY Case 3:20-cv-00257 Document 1 Filed 01/13/20 Page 8 of 8 MONSANTO COMPANY’S NOTICE OF FILING OF NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 555 South Flower Street, 30th Floor, Los Angeles, California 90071. On January 13, 2020, I served a true and correct copy of the document described as DEFENDANT MONSANTO COMPANY’S NOTICE OF FILING OF NOTICE OF REMOVAL on the interested parties, as follows: ☒ By submitting an electronic version of the document via FTP upload to the Court’s Electronic Filing and Service Provider, One Legal ☐ By electronic transfer to Case Anywhere via the Internet, pursuant to the Court’s Case Management Order No. 2 Authorizing Electronic Service dated March 23, 2018. ☐ By placing a true copy in envelope(s) addressed as referenced below. The envelope(s) were then sealed and deposited for collection and mailing in accordance with my employer’s normal procedures. I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service, with all postage prepaid, at Los Angeles, California, on the same day in the ordinary course of business. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this Proof of Service was executed on January 13, 2020 at Los Angeles, California. __________________ Marianne Hendrix