The opinion of the court was delivered by: Kahn, District Judge.
MEMORANDUM — DECISION AND ORDER
Presently before the Court are defendant Monsanto Chemical
Company's ("Monsanto") motion to dismiss, defendants Chapman
Chemical Company's ("Chapman") and ISK Biosciences' ("ISK")
motion to dismiss and Plaintiffs' cross-motion to amend. For the
reasons stated herein, Defendants' motions are granted in part
and denied in part without prejudice and Plaintiff's motion is
denied without prejudice to refile.
Plaintiffs bring the present product liability action against
Defendants, alleging that they negligently designed,
manufactured, distributed, formulated, marketed, tested,
supplied, and sold the chemical Pentachlorophenol, resulting in
injury to Plaintiffs.
Plaintiffs allege that Pentachlorophenol was utilized in the
treatment of wood which was harvested and "dipped" at plaintiff
William Johnson's ("Mr.Johnson") place of employment, the Camp
Summit Shock Incarceration Facility. Plaintiffs contend that, due
to Mr. Johnson's exposure to Pentachlorophenol, he contracted
Occupational Asthma. Plaintiffs allege that this resulted in the
loss of a significant portion of Mr. Johnson's breathing capacity
and an inability to perform many tasks that he was previously
able to perform, such as walking for long distances, climbing
stairs and mowing his lawn.
Defendants argue that Plaintiffs' claims should be dismissed
because they are preempted by the Federal Insecticide, Fungicide,
and Rodenticide Act ("FIFRA") and, in the alternative, because
they fail to state a claim upon which relief may be granted.
Plaintiffs, in turn, argue that their claims are not preempted by
FIFRA. Moreover, Plaintiffs argue that their complaint does state
a claim upon which relief may be granted and, in the alternative,
seek leave of the Court to amend their complaint.
A motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) must be
denied "unless it
appears beyond doubt that the Plaintiff can prove no set of facts
in support of his claim [that] would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957). In assessing the sufficiency, "all factual allegations in
the complaint must be taken as true," LaBounty v. Adler,
933 F.2d 121, 123 (2d Cir. 1991), and all reasonable inferences must
be construed in favor of the plaintiff, see Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Bankers
Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988).
[C]onsideration is limited to the factual allegations
in [the] complaint, to documents attached to the
complaint as an exhibit or incorporated in it by
reference, to matters of which judicial notice may be
taken, or to documents either in Plaintiffs'
possession or of which Plaintiffs had knowledge and
relied on in bringing suit.
Brass v. American Film Technologies, Inc., 987 F.2d 142, 150
(2d Cir. 1993).
The Rules do not require the plaintiff to set out in detail the
facts upon which the claim is based, but only that a defendant be
given "fair notice of what the claim is and the grounds upon
which it rests." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957). Individual allegations, however, that
are so baldly conclusory that they fail to give notice of the
basic events and circumstances of which the plaintiff complains
are meaningless as a practical matter and, as a matter of law,
are insufficient to state a claim. See Barr v. Abrams,
810 F.2d 358, 363 (2d Cir. 1987).
The Supremacy Clause, U.S. Const., Art. VI, cl. 2, provides
that state laws that "interfere with, or are contrary to the laws
of congress, made in pursuance of the constitution" are invalid.
Gibbons v. Ogden, 22 U.S.(9 Wheat.) 1, 211, 6 L.Ed. 23 (1824).
Specifically, the preemption doctrine invalidates an otherwise
valid state law if (1) Congress expressly preempts the state law,
(2) Congress completely occupies the law's field of operation,
(3) compliance with both federal and state law is impossible, or
(4) the state law is an "obstacle to the accomplishment and
execution of the full purposes and objective of Congress."
Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 603-607,
111 S.Ct. 2476, 115 L.Ed.2d 532 (1991).
In this case, Congress included an express preemption provision
when it enacted FIFRA. See 7 U.S.C. § 136v. However, the
Supreme Court has made it clear that courts are not to liberally
infer preemption, particularly in areas that are traditionally
reserved to the States. See Florida Lime & Avocado Growers v.
Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963);
Rice v. Santa Fe Elevator, 331 U.S. 218, 230, 67 S.Ct. 1146, 91
L.Ed. 1447 (1947). The Court has repeatedly held that
"[c]onsideration of issues arising under the Supremacy Clause
`start[s] with the assumption that the historic police powers of
the States [are] not to be superceded by . . . Federal Act unless
that [is] the clear and manifest purpose of Congress.'"
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct.
2608, 120 L.Ed.2d 407 (1992) (quoting Rice, 331 U.S. at 230, 67
S.Ct. 1146). Moreover, the Court has held that where Congress
provides an express preemption clause, the presumption against
preemption requires courts to construe the clause narrowly. See
Cipollone, 505 U.S. at 517-18, 112 S.Ct. 2608 (courts "need only
identify the domain expressly pre-empted by [the relevant]
Initially enacted in 1947, FIFRA is a comprehensive statute
governing the regulation of the registration and use of
pesticides. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 992,
104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). FIFRA requires that all
pesticides to be sold and distributed must be registered by the
Environmental Protection Agency ("EPA"). See
7 U.S.C. § 136a(a).
Although not completely occupying the field, which would
prevent any state involvement in the regulation of pesticides,
FIFRA expressly mandates that States may not impose labeling
requirements different from those required by the EPA. See
7 U.S.C. § 136v. The statute states in pertinent part:
A state may regulate the sale or use of any federally
registered pesticide or device in the State, but only
if and to the extent the regulation foes not permit