United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. HERNDON UNITED STATES DISTRICT JUDGE
the Court is Syngenta's motion to dismiss plaintiffs'
First Consolidated Amended Complaint [Doc. 59] for lack of
personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2), and
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6),
[Doc. 115]. Plaintiffs oppose the motion [Doc. 133]. Based on
the following, the Court GRANTS in part Syngenta's motion
to dismiss and DENIES in part Syngenta's motion to
dismiss and request for oral argument.
March 2016, Roland Poletti, et al. (“plaintiffs”)
filed their First Consolidated and Amended Complaint against
Syngenta,  under the Class Action Fairness Act
(“CAFA”), 28 U.S.C. § 1332(d). Plaintiffs
alleged that Syngenta prematurely commercialized the
genetically modified corn trait “MIR162,
” and in doing so, acted negligently,
recklessly, and deceptively, causing harm to plaintiffs
and contaminating the entire United States corn
supply. Plaintiffs further contend that - at the time of the
alleged acts - Syngenta knew of and foresaw the risk to
plaintiffs, and thereby breached the duty owed in preventing
the harm alleged [Doc. 59].
MIR162 & VIPTERA™ Controversy
note that United States exportation of corn amounts to
billions of dollars annually, and because the U.S. corn
marketing system is commodity-based,  the highest standards of
purity are required to be maintained. Id. at
Moreover, plaintiffs point to the premature release of
Agrisure VIPTERA™ as the sole cause of foreign
export-market refusal to import U.S. grown corn, and further
maintain that heavy financial losses have been incurred.
2009, Syngenta introduced and sold the genetically modified
(“GMO”) corn trait MIR162 to U.S. farmers under
the trade name Agrisure VIPTERA™; at the time, MIR162
was barred for sale in several countries, including China-
where it was not yet approved for purchase or consumption.
Id. Agrisure VIPTERA™ and its variant
products”), were licensed and marketed by Syngenta;
and, both products contained multiple genetically enhanced
modified traits and were sold for their insect-resistant
capabilities. Id. at 283. Syngenta's corn
modification process used biotechnology to insert genetic
substances into corn seeds from the bacterium Bacillus
thuringiensis (“Bt”), in order to produce
certain proteins that have insecticidal properties. One of
the produced proteins, Vip3A, binds to the pest insects'
midgut and forms pores, which kill the insects before crop
damage takes place. VIPTERA™'s bio-engineered
origin required foreign regulatory approval before it was
able to be cultivated or imported outside of the United
States. Id. at 290-91.
vie that Syngenta intentionally and recklessly released
VIPTERA™ and DURACADE™ into the U.S. corn market
before gaining MIR162 GMO approval. Id. at 283.
Allegations begin in the spring of 2010, when plaintiffs
charge that Syngenta decided to release VIPTERA™ for
the 2010-2011 corn season; all while lacking the necessary
approval for import into foreign markets, namely China-who,
in 2009-2010, imported 1, 296 thousand metric tons of U.S.
corn. Id. at 291-92. Plaintiffs claim that at the time
of VIPTERA™'s release, Syngenta assured consumers
that import approval in Japan and European Union countries
was pending-but made no mention in regard to China.
Id. Plaintiffs alleged that in 2012 Syngenta
misinformed U.S. corn farmers, grain elevators, grain
exporters, landowners, the general public, and even
Syngenta's own investors, by directing all to believe
that MIR162 GMO approval from China was forthcoming.
Id. at 284. The statements, plaintiffs' claim,
were followed by Syngenta's creation of documentation
that implicitly established the belief that MIR162 had been
accepted by Chinese importers. U.S. corn farmers immediately
began to plant corn containing MIR162; however, China did not
approve MIR162 until 2014. Id.
Corn Crop Contamination
evidence suggests that planting, harvesting, and transporting
assorted corn varieties together creates a risk of
contamination, commingling, and cross pollination from one
corn plant to another, resulting in an exchange of genetic
traits. Id. at 292-94. Plaintiffs allege that
notwithstanding this risk, Syngenta offered “a
‘side-by-side program' which encouraged farmers to
plant VIPTERA corn side-by-side with other corn seed.”
This encouragement of side-by- side planting of
VIPTERA™ and non-VIPTERA™ corn led to the
comingling of VIPTERA™GMO corn with the wide-ranging
U.S. corn supply. Id.
November 2013, the first shipments of MIR162-infused GMO corn
arriving in China were not approved for import and were
subsequently rejected. Id. at 297. Refusal continued
until December of 2014; and plaintiffs claim that
Syngenta's actions “shut down, for all intents and
purposes” the 2014 U.S. corn market to China,
“causing billions of dollars of damages to U.S.
exporters, including farmers, farm landowners, and farming
entities.” Id. at 285. In fact, plaintiffs
point to a National Grain and Feed Association
(“NGFA”) statement indicating that Syngenta's
premature release of VIPTERA™ corn cost the U.S. corn
market between $1 Billion and $3 billion dollars due to
rejection and seizures of containers and cargo ships
transporting MIR162 GMO corn to China alone. Id. at
Request to Stop DURACADE™ Release
suggest that Syngenta continued “irreparable damage to
U.S. exports of corn to China” by releasing a second
version of MIR162 GMO corn- without Chinese approval-under
the trade name DURACADE™. Id. at 286-87. In
anticipation of its release, the NGFA and North American
Export Grain Association (“NAEGA”) released a
joint statement requesting that Syngenta halt its release of
DURACADE™. Id. at 287. The statement explained
that both organizations were gravely concerned about the
serious economic harm resulting from Syngenta's current
approach to VIPTERA™ management. Id. at
287. Plaintiffs contend that regardless of NGFA and NAEGA
requests to halt production, Syngenta nevertheless released
DURACADE™, further jeopardizing the Chinese import
Claims Asserted/Causes of Action
assert claims-against Syngenta-of public nuisance, private
nuisance, negligence, products liability, tortious
interference with business actions, strict liability as to
certain classes of plaintiffs, and the violation of various
state deceptive trade practices and consumer protection acts.
Id. at 302-30. Causes of action for damages include:
the premature release of VIPTERA™ and DURACADE™
into the U.S. corn and corn seed supply; the failure to
disclose the material fact that MIR162 was not approved for
import into China; and the continuing and future MIR162
contamination of the U.S. corn and seed supply. Id.
at 288-89. Plaintiffs seek compensatory, consequential, and
punitive damages, and injunctive relief. Id. at
Personal Jurisdiction under 12(b)(2)
personal jurisdiction is challenged pursuant to Fed.R.Civ.P.
12(b)(2), plaintiffs bear the burden of establishing personal
jurisdiction over defendants. N. Grain Mktg., LLC v.
Greving, 743 F.3d 487, 491 (7th Cir. 2014) (citing
Purdue Research Found. v. Sanofi-Synthelabo, S.A.,
338 F.3d 773 (7th Cir. 2003). If the issue of personal
jurisdiction is raised by a motion to dismiss and decided on
written material rather than an evidentiary hearing, the
plaintiff need only make a prima facie showing of
jurisdictional facts. Id. The Court must take as
true all well-pleaded facts alleged and resolve any factual
disputes in favor of the plaintiff. Tamburo v.
Dworkin, 601 F.3d 693, 700 (7th Cir. 2010).
long-arm statute enables personal jurisdiction over a party
to the extent allowed under the due process provisions of the
Illinois and United States Constitutions. See 735
Ill. Comp. Stat. 5/2-209(c) (2016) (courts may exercise
jurisdiction on any other basis now or hereafter permitted by
Illinois Constitution and Constitution of United States);
see also Kipp v. Ski Enterprise Corp. of Wisc.,
Inc., 783 F.3d 695, 697 (7th Cir. 2015) (stating
governing Illinois statute permits courts to exercise
personal jurisdiction up to limits of Due Process Clause of
Fourteenth Amendment). The Illinois Constitution's due
process and equal protection guarantee-Ill. Const. art. I,
§ 2-permits the assertion of personal jurisdiction
“when it is fair, just, and reasonable to require a
nonresident defendant to defend an action in Illinois,
considering the quality and nature of the defendant's
acts which occur in Illinois or which affect interests
located in Illinois.” Rollins v. Ellwood, 141
Ill.2d 244, 275 (Ill. 1990). When interpreting these
principles, a court may look to the construction and
application of the federal due process clause. Id.
The Seventh Circuit Court of Appeals has suggested that there
is no operative difference between Illinois and federal due
process limits on the exercise of personal jurisdiction.
Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 715
(7th Cir. 2002). Therefore, if the contacts between the
defendant and Illinois are sufficient to satisfy the
requirements of federal due process, then the requirements of
both the Illinois long-arm statute and the Illinois
Constitution have also been met, and no other inquiry is
Process Clause of the Fourteenth Amendment limits when a
state may assert personal jurisdiction over nonresident
individuals and corporations. See Pennoyer v. Neff,
95 U.S. 714, 733 (1877), overruled on other grounds by
Shaffer v. Heitner, 433 U.S. 186 (1977). Under federal
due process standards, a court can have personal jurisdiction
over a defendant only if the defendant has “certain
minimum contacts with [the forum state] such that the
maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.'”
Int'l Shoe Co. v. State of Wash., 326 U.S. 310,
316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457,
463 (1940)); uBID, Inc. v. GoDaddy Group, Inc., 623
F.3d 421, 425 (7th Cir. 2010) (quoting Int'l
Shoe, 326 U.S. at 316). The defendant must have
purposefully established such minimum contacts with the forum
state such that it “should reasonably anticipate being
haled into court there, ” WorldWide Volkswagen
Corp. v. Woodson, 444 U.S 286, 297 (1980), because it
has “purposefully avail[ed] itself of the privilege of
conducting activities within the forum State, thus invoking
the benefits and protections of its laws, ” Hanson
v. Denckla, 357 U.S. 235, 253 (1958). In deciding
whether exercising jurisdiction offends traditional notions
of fair play and substantial justice, the Court may also
consider “the burden on the defendant, the interests of
the forum State, and the plaintiff's interest in
obtaining relief.” Asahi Metal Indus. Co., Ltd. V.
Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 113
personal jurisdiction means in a particular case depends on
whether the plaintiff asserts “general” or
“specific” jurisdiction. Specific jurisdiction
refers to jurisdiction over a defendant in a suit arising out
of or related to the defendant's contacts with the forum.
Hyatt, 302 F.3d at 716 (citing Helecopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414
nn. 8, 9 (1984)). General jurisdiction, on the other hand,
may exist even in suits that do not rise out of or relate to
the defendant's contacts so long as the defendant has
“continuous and systematic” contacts with the
forum state. Hyatt, 302 F.3d at 713;
Helicopteros Nacionales, 466 U.S. at 416.
Failure to State a Claim under 12(b)(6)
12(b)(6) permits a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted.
Hallinan v. Fraternal Order of Police Chi. Lodge No.
7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme Court
explained in Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007), that Rule 12(6)(b) dismissal is warranted if
the complaint fails to set forth “enough facts to state
a claim to relief that is plausible on its face.”
Notice pleading remains all that is required in a complaint,
even though federal pleading standards were overhauled by
Twombly and Ashcroft v. Iqbal, 556 U.S. 662
(2009). “A plaintiff still must provide only
‘enough detail to give the defendant fair notice of
what the claim is and the grounds upon which it rests and,
through his allegations, show that it is plausible, rather
than merely speculative, that he is entitled to relief.'
” Tamayo v. Blagojevich, 526 F.3d 1074, 1083
(7th Cir. 2008) (citation omitted).
Seventh Circuit offers further instruction on what a civil
action must allege to endure 12(b)(6) dismissal. In Pugh
v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008), the
Court reiterated the standard: “surviving a Rule
12(b)(6) motion requires more than labels and
conclusions”; the complaint's allegations must
“raise a right to relief above the speculative
level.” A plaintiff's claim “must be
plausible on its face, ” that is, “the complaint
must establish a non-negligible probability that the claim is
valid.” Smith v. Med. Benefit Adm'rs Grp.,
Inc., 639 F.3d 277, 281 (7th Cir. 2011).
Choice of Law
diversity case, the Court applies the choice of law rules of
the state in which the district court sits. Jackson v.
Payday Fin., LLC, 764 F.3d 765, 774 (7th Cir. 2014)
(citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78
(1938)). Under Illinois choice of law rules, litigants can
stipulate to which substantive law applies to their case so
long as the stipulation is reasonable. City of Clinton,
Ill. v. Moffitt, 812 F.2d 341, 342 (7th Cir. 187);
see also Rexford Rand Corp. v. Ancel, 58 F.3d 1215,
1219 n.6 (7th Cir. 1995). The parties have cited to Illinois
law, thus, Illinois law applies. To the extent that the
Illinois Supreme Court has not yet spoken to any of the
issues before the Court, the Court shall apply the law as it
would predict the Illinois Supreme Court would if deciding
the case. Taco Bell Corp. v. Cont'l Cas.
Co., 388 F.3d 1069, 1077 (7th Cir. 2004) (stating that
duty of federal court in diversity suit is to predict what
state Supreme Court would do if presented with identical
Personal Jurisdiction is Established Because All of
Plaintiffs' Claims Arise Out of and Relate to
Syngenta's Minimum Contacts with Illinois
primary argument for the dismissal of the non-Illinois
plaintiffs' claims is that-under the Due Process
Clause-the Court lacks personal jurisdiction to adjudicate,
i.e., Syngenta is not subject to general personal
jurisdiction, nor specific personal jurisdiction in Illinois
for non-Illinois claims brought by non-Illinois plaintiffs.
Regarding specific jurisdiction over the non-Illinois
plaintiffs, this Court disagrees. Plaintiffs have
sufficiently pled jurisdictional facts showing that the
Syngenta defendants purposely availed themselves of the
benefits and protections of Illinois laws. Nonresident
defendants who “purposefully direct” their
activities toward a forum create a legitimate basis to
exercise personal jurisdiction. See Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 473-74 (1985); Trade Well
Int'l v. United Cent. Bank, 825 F.3d 854, 859 (7th
Cir. 2016) (“Moreover, a district court may exercise
personal jurisdiction over any party that purposefully avails
itself of the forum.”).
stated above and briefly reiterated here, personal
jurisdiction exists only if a defendant has “certain
minimum contacts with [the forum state] such that the
maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.'”
Int'l Shoe Co., 326 U.S. at 316. The defendant
must have purposefully established such minimum contacts with
the forum state such that it “should reasonably
anticipate being haled into court there, ”
World-Wide Volkswagen Corp., 444 U.S at 297, because
it has “purposefully avail[ed] itself of the privilege
of conducting activities within the forum State, thus
invoking the benefits and protections of its laws, ”
Hanson, 357 U.S. at 253. Here, Syngenta has done
order to commercialize VIPTERA™, the Syngenta
defendants availed themselves of ...