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January 30, 2001


The opinion of the court was delivered by: Kahn, District Judge.


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.

I. Background

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.

II. Analysis

A. Standard of Review

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).

B. FIFRA Preemption

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] sections").

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) In General

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 any ...

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