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Finarelli v. Monsanto Co.

United States District Court, M.D. Pennsylvania

September 19, 2019

ALBERT S. FINARELLI, III, Co-executor of The ESTATE OF ALBERT S. FINARELLI, JR and KATHLEEN FINARELLI, Plaintiffs,
v.
MONSANTO COMPANY, OSBORN & BARR COMMUNICATIONS, INC., and OSBORN & BARR HOLDINGS, INC., Defendants.

          MEMORANDUM OPINION

          Robert D. Mariani United States District Judge.

         I. INTRODUCTION

         Here the Court considers Defendants' Osborn & Barr Communications, Inc. and Osborn & Barr Holdings, Inc.'s Motions to Dismiss Plaintiffs Petition for Lack of Personal Jurisdiction, or, in the Alternative, for Failure to State a Claim (Doc. 6). Defendant Monsanto Company ("Monsanto") removed this action from the Luzerne County Court of Common Pleas on January 31,2019, based on diversity jurisdiction. (Doc. 1.) The action arises from the death of Albert S. Finarelli, Jr., who died from pancreatic cancer on January 26,2015. (Pls.' Compl. ¶ 46, Doc. 2 at 13.) Plaintiffs' Complaint contains six counts: Count I - Wrongful Death against all Defendants; Count II - Survival Action against all Defendants; Count III - Strict Liability (Design Defect) against Defendant Monsanto; Count IV - Strict Liability (Failure to Warn) against Defendant Monsanto; Count V - Negligence against Defendant Monsanto; and Count VI - Fraud, Misrepresentation, and Suppression against Osborn & Barr. (Id. ¶¶ 49-150, Doc. 2 at 13-35.)

         With their pending motion, Defendants Osborn & Barr Communications, Inc. and Osborn & Barr Holdings, Inc. ("O&B Defendants") assert that they are not subject to the personal jurisdiction of the Court and, alternatively, the Complaint does not state a claim upon which relief may be granted. (Supp. Br., Doc. 6-1 at 3.) Plaintiffs respond that the Court has personal jurisdiction over O&B Defendants and their Complaint states a cognizable claim against O&B Defendants. (Opp. Br, Doc. 8 at 4-5.) In their reply brief, O&B Defendants aver that Plaintiffs have not remedied the deficiencies upon which O&B Defendants moved to dismiss. (Reply Br., Doc. 10 at 1.)

         After full consideration of the parties' briefs and related documents, the Court concludes that Defendants' Osborn & Barr Communications, Inc. and Osborn & Barr Holdings, Inc.'s Motions to Dismiss Plaintiffs Petition for Lack of Personal Jurisdiction, or, in the Alternative, for Failure to State a Claim (Doc. 6) are properly granted on the basis of the Court's finding that the current record does not support personal jurisdiction for either of the O&B Defendants.

         II. FACTUAL BACKGROUND

         Defendant Monsanto discovered the herbicidal properties of glyphosate and manufactured the product Roundup® which is used to kill weeds that commonly compete with the growing of crops. (Pls.' Compl. ¶¶ 6,16, Doc. 2 at 7,9.) Osborn & Barr Communications, Inc. and Osborn & Barr Holdings, Inc. were responsible for marketing Roundup® and related products until approximately 2012. (Pls.' Compl. ¶ 9, Doc. 2 at 7.) Plaintiffs' aver that "Defendants frequently advertised and sold Roundup® in Luzerne County, Pennsylvania" where the decedent, Albert S. Finarelli, Jr., purchased and used the product." (Pls.' Compl. ¶¶ 9,12-14, Doc. 2 at 7.) All of the injuries suffered by Plaintiffs occurred in Luzerne County. (Pls.' Compl. ¶ 15, Doc. 2 at 7.)

         As summarized in the brief in opposition to O&B Defendants' motion, Plaintiffs' Complaint further alleges the following:

On July 29, 2015, the International Agency for Research on Cancer ("IARC") issued the formal monograph relating to glyphosate classifying glyphosate as a Group 2A herbicide, which means that it is a probable carcinogenic to humans - a probable cause of cancer. Id, ¶¶ 19-20. Nevertheless, Monsanto, since they began selling Roundup, has represented it as a "safe" general-purpose herbicide for widespread commercial and consumer user, and create no unreasonable risks to human health or to the environment. Id, ¶ 21.
Moving Defendants marketed Roundup for two decades, representing it as safe to humans and the environment, disseminating advertising and other marketing efforts that proclaim to Roundup users, and potential Roundup users, that the products create no unreasonable risks to human health or to the environment. Id, ¶ 35. Moving Defendants' marketing efforts touted Roundup's efficacy and safety, never once disclosing the EPA classification mentioned above or the fraud involved in safety testing. Id, ¶ 36. Furthermore, Moving Defendants helped design the packaging for Roundup products, which never warned of the cancer risk, and spearheaded efforts to portray Monsanto as an anti-cancer crusader in its farmer-friendly marketing, remaining absolutely silent as to the connection between Monsanto's biggest seller and the users' increased risk of cancer. Id, ¶¶ 37-38.
Monsanto has acknowledged that Monsanto and its sales of agricultural products including Roundup "wouldn't be the same" without Moving Defendants. Id, ¶ 39. Additionally, Moving Defendants even developed and maintains [sic] a public, national marketing website to advance Monsanto's sales called "Growing Safely: Focused on Safety in Agriculture" with numerous different subsections, failing to mention to consumers and potential consumers that Roundup is closely associated with cancer, nor recommending any safety precautions for the application of Roundup. Id, ¶ 40. Monsanto has known for decades that Defendants falsely advertise the safety of Roundup, specifically Monsanto has represented that its spray-on-glyphosate-based herbicides, including Roundup, were "safer than table salt" and "practically non-toxic" to mammals, birds, and fish. Id, ¶ 41
Albert S. Finarelli, Jr., Decedent ("Decedent") purchased and used more than seventy (70) gallons of Roundup and / or other Monsanto glyphosate products per year from approximately 1994 through 2015 on his property located at 808 Hartman Road, Hunlock Creek, Luzerne County, Pennsylvania, in part, due to Plaintiffs' reliance on the national media campaign run by Moving Defendants concerning the safety of Roundup. Id, ¶¶ 43,143. Decedent used and / or sprayed Roundup and / or other Monsanto glyphosate products on an almost daily basis for more than 11 years, and on January 26,2015, Decedent died from pancreatic cancer. Id, ¶¶ 44-46.

(Doc. 8 at 2-3 (citing Pls.' Compl., Doc. 2 at 6-43).)

         Regarding jurisdiction, O&B Defendants state that Osborn & Barr Communications, Inc. and Osborn & Barr Holdings, Inc. are both Missouri corporations with principal places of business in Missouri. (Doc. 6-1 at 2 (citing Ex. 2, Aff. of Rhonda Ries at¶¶ 3-4 and 8-9, Doc. 6-3 at 2).) Neither company is registered to do business in Pennsylvania, owns property in Pennsylvania, or pays taxes in Pennsylvania. (Id. at 2-3 (citing Reis Aff. at ¶¶ 5-7,10-12, Doc. 6-3 at 3).) They further maintain that Osborn & Barr Holdings, Inc. is a holding company and has no employees. (Id. at 3 (citing Reis Aff. at¶¶ 14,15, Doc. 6-3 at 3).) Plaintiffs aver that "[a]lthough Defendant ...


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