United States District Court, S.D. Illinois
IN RE SYNGENTA MASS TORT ACTIONS This Document Relates to: Tweet et al.
MEMORANDUM AND ORDER
R. HERNDON JUDGE.
matter comes before the Court on the Motion to Dismiss
Consolidated Third Amended Complaint and Motion for Oral
Argument, [doc. 137], filed by Syngenta AG, Syngenta
Biotechnology, Inc., Syngenta Corporation, Syngenta Crop
Protection AG, Syngenta Crop Protection, LLC, and Syngenta
Seeds, Inc.Plaintiffs filed their response opposing
the motion on October 20, 2016 [doc. 172]. For the following
reasons stated below, Syngenta's motion to dismiss is
GRANTED in part and DENIED in part.
mass action arises from Syngenta's commercialization of
its genetically modified (“GMO”) corn trait
MIR162, which was sold under the trade name Agrisure
VIPTERA™. Agrisure VIPTERA™, and its
second-generation variant containing both MIR 162 and Event
5307, DURACADE™, (“genetically-modified
products”), contained multiple genetically enhanced
modified traits and were sold for their insect-resistant
capabilities. Syngenta claimed the GMO seeds would increase
yields due to the improved resistance to insects. However, at
the time of production and distribution prior to the 2011
growing season, MIR162 was barred for sale in several
countries, including China-where it was not yet approved for
purchase or consumption.
2013, shipments of MIR 162-infused corn arrived in China and
were not approved for import and were subsequently rejected.
In recent years, China has been a major export market for
American corn. Thus, when the Viptera corn was shipped to
China and rejected, it resulted in a swift decrease in the
demand for U.S. corn, and in turn, a drop in U.S. corn
prices. Plaintiffs also allege that Distiller's Dried
Grains with Solubles (DDGS) were marketed and shipped to
China alongside U.S. corn. DDGS are produced when corn is
processed into ethanol and is used in animal feed.
plaintiffs in this case are corn farmers from multiple states
who never purchased or knowingly planted VIPTERA™ or
DURACADE™ brand seeds. Plaintiffs seek to hold Syngenta
liable for their losses resulting from the reduced price for
their corn caused by Syngenta's release of the GMO
products into the marketplace. Specifically, plaintiffs
allege that Syngenta owed a tort duty - not a contract duty -
to act reasonably in the timing, manner, and scope of its
commercialization of VIPTERA™ to prevent the type of
harm that befell plaintiffs.
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)
motion to dismiss under Fed.R.Civ.P. 12(b)(6) challenges the
sufficiency of the complaint. Rule 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(b)(6)
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)
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)). Illinois follows the most significant relationship
test found in the Restatement (Second) Conflict of Laws.
Denton v. Universal Am-Can, Ltd., 26 N.E.3d 448, 451
(Ill.App.Ct. 2015). Under Illinois choice of law rules,
litigants can also 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).
a choice of law analysis is only required when a difference
in the laws of the states will affect the outcome of a case.
Denton, 26 N.E.3d at 451; see also Bridgeview
Health Care Ctr., Ltd. v. State Farm Fire & Cas.
Co., 10 N.E.3d 902, 909 (IL Sup. Ct. 2014) (“a
choice-of-law determination is required only when the moving
party has established an actual conflict between state
laws.”). The Court is cognizant that defendants state
they cite “exemplar cases for principles of law that
apply across the relevant jurisdictions” and that
Illinois' most significant relationship applies “in
the event of a conflict of laws.” Doc. 137- 1 at 36. In
reviewing the motion to dismiss, it is apparent that much of
the case law cited and prominently argued is out of Illinois
courts or discussing Illinois law. Additionally, no actual
conflicts have been highlighted by the parties between
Illinois' and another states' law. As such, the Court
presumes defendants believe, and that plaintiffs agree due to
their silence on the issue, that Illinois cases properly
serve as “exemplars” of the possible relevant
jurisdictions. Accordingly, Illinois law is applicable and
properly representative and the Court moves forward focusing
on Illinois law. As this case involves multiple plaintiffs,
to the extent a conflict does arise further on in the
litigation, Illinois' most significant relationship test
will be utilized to determine the proper states'
Personal Jurisdiction is Established Because All of
Plaintiffs' Claims Arise Out of and Relate to
Syngenta's Minimum Contacts with Illinois
do not dispute personal jurisdiction over plaintiffs besides
the non-Illinois plaintiffs' group. Syngenta's
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) and Trade
Well Int'l v. United Cent. Bank, 825 F.3d 854, 859
(7th Cir. 2016) (“a district court may exercise
personal jurisdiction over any party that purposefully avails
itself of the forum”), and plaintiffs have shown that
this litigation arises out of and is properly related to
defendants' contacts with this forum.
determining whether personal jurisdiction exists, the Seventh
Circuit uses a “quid pro quo” approach to decide
whether litigation in a particular forum is reasonably
foreseeable. See uBID, Inc. v. GoDaddy Grp., Inc.,
623 F.3d 421, 430 (7th Cir. 2010). What is important, is that
the relationship between the defendants' contacts and the
forum be “intimate enough” to keep the quid pro
quo inquiry proportional. Id. This can be shown by
demonstrating that a defendant's contacts were
“temporally and substantively related” to the
lawsuit at hand. Id. at 431. See also Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 779 (1984)
(personal jurisdiction is supported when cause of action
arises out of the very activity being conducted in the forum
state). Here, the Syngenta defendants argue that their
contacts with Illinois are not part of the causal chain
leading to the plaintiffs' alleged injuries, thus
personal jurisdiction does not stand. The Court is not
persuaded by this argument.
purposefully directed and conducted substantial business
activities in Illinois, which either were a step to, or part
of, the commercialization of its GMO products. According to
plaintiffs' Third Amended Consolidated Complaint
(“CAC”), Syngenta sells seeds in Illinois, uses
“Syngenta Seed Advisors” to promote Syngenta
products in Illinois, maintains physical facilities in
Illinois, and also field tested the genetically modified
trait, MIR 162, in Illinois. CAC ¶ 746. Taking the
allegations as true, Syngenta's contacts with Illinois
include promoting, making, and selling Viptera seeds which
led to the alleged contamination of the U.S. corn supply, and
also activities which made that commercialization possible in
the first place, i.e. field testing the genetically modified
trait. Plaintiffs' main cause of action is that Syngenta
was negligent in the way it commercialized and marketed
Viptera seeds, thus the listed contacts with Illinois are
sufficient to demonstrate that Syngenta's Illinois
contacts are directly related to plaintiffs' cause of
Court is cognizant of, and takes note of, defendants'
arguments relying upon the sister litigation taking place in
the United States District Court for the District of Kansas.
There, the Honorable Judge Lungstrum presides over the
Syngenta multi-district litigation, (“MDL”),
dubbed the In re Syngenta AG MIR 162 Corn
Litigation. In addressing defendants' personal
jurisdiction arguments, Judge Lungstrum, on a motion to
reconsider, held the court lacked personal jurisdiction over
the non-Kansas plaintiffs. In re Syngenta AG MIR 162 Corn
Litigation, 14-md-2591, Doc. 2047 at 16-18. While the
Syngenta defendants brought comparable defenses against the
non-Kansas plaintiffs, the arguments against the non-Illinois
plaintiffs are distinguishable. Here, plaintiffs have
additionally pled that Syngenta conducted numerous field
tests in Illinois, which aided in the eventual
commercialization of VIPTERA™, which is the stated
underlying basis for all plaintiffs' claims.
Defendants' assert that the field tests have nothing to
do with plaintiffs' current allegations and that the MDL
court held similarly. Doc. 182 at 4, n. 2. However, the
passage Syngenta cites to is part of the MDL court's
discussion on “Trespass to Chattels” and
intermeddling, a claim and issue that are not raised here. As
such, the Court finds that defendants' statement
overreaches and breathes new meaning into the MDL quotation.
The field testing is an important step leading to the
commercialization of Syngenta's GMO products, and that,
combined with the other Illinois contacts, is enough to
satisfy minimum contacts doctrine.
do not have to prove that Syngenta did all their business
activities regarding commercialization and marketing of
Viptera seeds in Illinois only. In M.M. ex rel. Meyers v.
GlaxoSmithKline LLC, plaintiffs sued over congenital
birth defects allegedly caused by taking the drug, Paxil. 61
N.E.3d 1026, 1041, appeal denied sub nom. M.M. v.
GlaxoSmithKline LLC, 65 N.E.3d 842 (Ill. 2016).
Specifically, plaintiffs claimed defendants failed to use
reasonable care in avoiding injuring plaintiffs. Id.
Plaintiffs were identified in mother/child pairs, and only
two of the sixteen pairs were from Illinois. Defendants moved
to dismiss the out of state plaintiffs' claims based on
lack of personal jurisdiction due to claims not arising from
Illinois contacts; the non-Illinois pairs did not receive or
ingest Paxil in Illinois, did not suffer injury there, and
did not serve as Paxil study subjects in Illinois.
Id. at 1031. Defendants also argued, much like
Syngenta's discussion regarding Illinois activities, that
plaintiffs could not be correct in establishing personal
jurisdiction because they focused only on a “tiny
sliver” of Paxil clinical trials, when such trials took
place in 44 states and abroad. Id. at 1033. The
Paxil plaintiffs countered that while they were not
domiciled, prescribed Paxil, or injured by Paxil in Illinois,
their claims still arose directly out of or related to
defendants' purposeful contacts with Illinois, despite
similar activity occurring in other jurisdictions.
Appellate court held that the defendants had failed to
overcome plaintiffs' prima facie showing that
they had minimum contacts in Illinois. In addressing
defendants' arguments that they did not have enough
contacts with Illinois to be meaningful, the court held that
plaintiff's injuries arose, in part, from acts of
omission during the clinical trials. Id. at 1041. It
did not matter that a small percentage of the clinical trial
took place in Illinois, a plaintiff only has to prove a
proper place for personal jurisdiction. Id.
at 1040. And a proper place for personal jurisdiction is when
there is a nexus between a defendant's actions and
plaintiff's cause of action that does not disrupt the
quid pro quo. The Paxil trial court properly highlighted this
concern when it asked, “[Am I] trying to figure out
where the best location for this litigation is, or whether or
not there's a significant nexus to Illinois?”
Id. In relying on the GlaxoSmithKline case,
this Court takes a different approach than the MDL court
where that court's focus is on the amount of Viptera seed
sales outside of Kansas. In re Syngenta AG MIR 162 Corn
Litigation, 14-md-2591, Doc. 2047 at 18. This Court,
instead, focuses its inquiry on whether those contacts are
meaningful. See GlaxoSmithKline LLC, 65 N.E.3d at
1041 (“[W]hether Illinois contacts are meaningful
depends entirely on their relation to the Plaintiffs'
causes of action, and not at all on a percentage-based
comparison between how much related conduct occurred outside
minimum contacts have been established, a court must consider
whether notions of fair play and substantial justice would be
interrupted by litigating in the forum state. Courts
typically consider factors like the burden on the defendant
in litigating in the chosen state, the forum state's
interest in adjudicating the dispute, and the plaintiff's
interest in obtaining relief. See e.g. Arnold v.
Miller, No. 08-234-DRH, 2009 WL 2020838, at *6 (S.D.
Ill. July 9, 2009). Here, Syngenta argues that its contacts
with Illinois does not make Illinois an all-purpose forum for
all the claims surrounding VIPTERA™.
Court does not find a substantial burden on the defendants to
litigate in Illinois. Given today's “ease of
communications and travel capabilities” it is not
outrageous to believe a large corporation like Syngenta can
accommodate defending itself in Illinois. Arnold,
2009 WL 2020838 at *6. Additionally, this case will go
forward in this Illinois forum despite defendants'
arguments regarding non-Illinois plaintiffs as jurisdiction
is not disputed as to the Illinois plaintiffs. The defendants
have not shown how “piecemeal” litigation in
different forums advances the goals of “efficient
judicial resolution of the dispute.”
GlaxoSmithKline LLC, 65 N.E.3d at 1042. Such
splintered litigation raises costs overall while also running
the risk of inconsistent verdicts. Id. The Court
does not believe additional burden will befall defendants
when they will already be litigating in this court, thus
serving judicial economy. Worth noting as well regarding the
“fair play factors, ” is that Illinois does have
an interest in resolving the litigation. This case addresses
the alleged consequences felt by contamination of the U.S.
corn supply due to Syngenta's claimed negligence in the
commercialization of Viptera brand seeds. The creation and
commercialization of Viptera seeds is the seminal event
relating to the claims of all plaintiffs, Illinois and
non-Illinois. The activities performed in Illinois were
necessary to produce and promote trait MIR 162. Accordingly,
Illinois has an interest in resolving this litigation.
contacts with Illinois gave rise to the claims of all
plaintiffs. Therefore, specific personal jurisdiction has
been established ...