i. Exception to Analysis under 7 U.S.C. § 136v (b)
Defendant Monsanto, in its Memorandum of Law dated March 30, 1994, relies on Worm II,7 stating that the company "cannot be penalized for the EPA approved warranties." See Monsanto's Memorandum of Law, March 30, 1994, p. 9. The defendant appears to be addressing an exception to the general analysis under § 136v(b), but his reliance on Worm II is misplaced. Although this court adopts the Worm II holding for purposes of the express warranty analysis, we find that it does not support the defendant's assertion.
The relevant portion of the Worm II opinion states in part: "because the Worms point to no statement made by American Cyanamid other than that required and approved by the EPA, their warranty claims are preempted." Worm, 5 F.3d at 749 (emphasis supplied). This court reads the operative word "and" as indicating the Fourth Circuit's intention to preempt only those express warranty claims that are EPA mandated. Consequently, this court adopts the Worm II express warranty holding for the purpose of this analysis for two reasons.
First, express warranties have a voluntary quality, which is missing if they are mandated by EPA. The rationale that warrantors should be held to contracts that they voluntarily enter into does not apply when their actions are forced. Second, express warranties are not enforceable through state contract law if Congress has expressly preempted the law or has completely occupied the law's field of operation, as is the case with EPA mandated labeling. Mortier, 111 S. Ct. at 2481-82 ; see also page 9, infra. Based on the foregoing justifications, we hold that EPA mandated warranties are preempted.
We now consider the defendants assertions. Defendant Monsanto does not argue that the warranties were EPA mandated, but that they were EPA approved. This court does not find that EPA approval necessitates preemption under FIFRA for three reasons. First, a warranty does not lose it voluntary quality through EPA approval. Second, the mere fact that Congress gives EPA the power to approve labels does not indicate that the legislative body necessarily intended that EPA control over express warranties designated on the labels. Third, the defendant's argument is inconsistent with the reasoning in Worm II, Cipollone and Mortier. Worm II, 5 F.3d at 749; Cipollone, 112 S. Ct. at 2618; Mortier, 111 S. Ct. at 2482. The latter two cases suggest that when warranties are EPA approved but not EPA mandated, Congress has not attempted to occupy an entire field and has not expressly preempted the claims. Therefore, since Plaintiff's express warranty claims are not required by EPA, they do not warrant an exception to the general preemption analysis.
This court finds that Plaintiff's express warranty claims survive preemption.
b. Plaintiff's Implied Warranty Claims
In her memorandum of law, dated April 23, 1994, Plaintiff Higgins concedes that implied warranties that relate to labeling and packaging are preempted. Plaintiff proceeds to assert that her claims survive preemption because they are not related to either factor.
Analyzing the Plaintiff's implied warranty claims under § 136v(b), we find the first prong satisfied; implied warranties are rooted in state law.
See Papas II, 985 F.2d at 519 (stating that "an implied warranty is a requirement imposed under state law"). A decision to the contrary would allow the states to levy requirements on labeling in addition to those imposed by FIFRA. See King, 983 F.2d at 1135 (concluding that if implied warranties are not preempted it would produce additional labeling requirements); Prather v. Ciba-Geigy Corp., 852 F. Supp. 530, 1994 WL 197917 *2 (W.D.La. 1994) ("FIFRA prescribes detailed labeling and packaging requirements which, if observed, preempt state law claims for failure to warn or breach of warranty that would effectively require a manufacturer to include additional or different information in a pesticide's federally approved label or promotional material" (citing Worm, 5 F.3d at 749)).
We agree that a cause of action for breach of an implied warranty stems from the sale of the goods as well as from state regulation,
but believe that Congress, by so thoroughly regulating the labeling of the products, intended to preempt implied warranty claims. To hold otherwise contravenes Congress' intent in enacting the legislation, therefore implied warranty claims that relate to labeling are preempted. In light of this, we must consider the second prong of § 136v(b): whether the implied warranty claims at issue relate to the labeling or packaging of a product. See generally Trinity Mountain Seed Co. v. MSD AGVET, 844 F. Supp. 597 (D.Idaho 1994) (holding that FIFRA preempts breach of warranty claims based on labeling).
Implied warranty claims imposed on the sale of chemicals generally fall into one of two categories. A manufacturer may be liable for breach of an implied warranty of merchantability if the chemical compound is hazardous when used in accordance with the directions on the label; or, he may be liable for breach of an implied warranty of fitness for a particular purpose if the chemical is not fit for the purpose conveyed through the label.
Since both causes of action are based on labeling, implied warranty claims related to the sale of chemicals are usually preempted.
In the case at bar, the Plaintiff has failed to articulate with sufficient detail which avenue she wishes to pursue her implied warranty claims along. However, such an oversight is irrelevant due to the fact that this court finds that both legal theories are predicated on an inadequacy in labeling. Accordingly, the Plaintiff's claims based upon implied warranty are preempted by FIFRA.
B. Adequacy of Evidence Under Summary Judgment
As outlined above, the party opposing summary judgment may not rest upon the mere allegations or denials of her claim; rather, the party must present sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. See Anderson, 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202. However, this presupposes that the opposing party has developed such evidence through discovery. In the absence of adequate discovery, summary judgment may not be appropriate. Fed.R.Civ.P. 56(f). Rule 56(f) of the Federal Rules of Civil procedure specifically provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Fed. R. Civ. P. 56(f). Rule 56(f) is discretionary and provides a district court two options when a party opposing summary judgment cannot present "facts essential to justify the party's opposition": rule on the summary judgment motion or allow discovery. Habib v. Raytheon Co., 199 U.S. App. D.C. 11, 616 F.2d 1204, 1210 (D.C. Cir. 1980).
In the instant action, Plaintiff has not supplied any supporting affidavits establishing a factual dispute. In justification, Plaintiff asserts that this Court's November Order and subsequent scheduling conference required that the current summary judgment motions be limited solely to the question of preemption. Although Plaintiff's interpretation of the Court's order is incorrect, based on the Court's language
it was reasonable for Plaintiff to conclude that the scope of the motions was indeed limited to the question of preemption.
In granting Plaintiff additional time for discovery, the Court is cognizant of the fact that summary judgment is a "drastic device," which should not be granted when there are major factual contentions in dispute; particularly when, as here, one party has yet to exercise its opportunities for pretrial discovery. National Life Ins. Co. v. Solomon, 529 F.2d 59, 61 (2nd Cir. 1976) (citations omitted). The Court is not yet equipped to resolve the factual disputes raised by the pleadings. Therefore, the Court does not express any opinion as to the validity of Plaintiff's factual allegations. Our holding relative to discovery is simply procedural. Plaintiff is granted 120 days to complete discovery.
In sum, the court finds the Plaintiff's claims alleging failure to conduct adequate testing, and failure to comply with FIFRA are not preempted by FIFRA. Additionally, the court finds the claims alleging breach of express warranty and strict liability in tort are also not preempted by FIFRA. However, based on the logic articulated previously, the court finds the Plaintiff's claims based upon implied warranty are preempted by FIFRA and therefore must be dismissed. Lastly, the court will order that all discovery in this matter be complete within 120 from the date of this order.
IT IS SO ORDERED.
Dated at Binghamton, New York
September 24, 1994
Hon. Thomas J. McAvoy
Chief U.S. District Judge