Eide v. E.I. Du Pont de Nemours & Co.

Formatting Courtesy of
The State Bar of South Dakota and
South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501

OAKLEY EIDE,
Plaintiff and Appellant,
v.
E.I. DU PONT DE NEMOURS & CO.,
a Delaware Corporation,
and Dakota Pride Cooperative
f/k/a Farmers Cooperative Oil Association Of Winner
d/b/a Burke Farmers Elevator,
Defendants and Appellees.

South Dakota Supreme Court
Appeal From The Sixth Judicial Circuit, Gregory County, SD
Hon. Kathleen F. Trandahl, Judge
#19101 - Reversed

Michael L. Buffington, Samp and Merkle, Sioux Falls, SD
Attorney for plaintiff and appellant.

Jack Gunvordahl, Burke, SD
Attorney for appellee Dupont.

Lon J. Kouri, Martin Oyos
May, Johnson, Doyle & Becker, P.C., Sioux Falls, SD
Attorneys for appellee Dakota Pride Cooperative.

Submitted On Briefs Oct 19, 1995; Opinion Filed Jan 31, 1996

KONENKAMP, Justice.

[¶1] The circuit court's failure to give the parties notice of its intent to convert a motion to dismiss into a summary judgment motion was error. Accordingly, we reverse and remand.

FACTS

[¶2] Eide, a Gregory County farmer, sued Du Pont De Nemours & Co. and Dakota Pride Cooperative for damages sustained to his corn crop, allegedly caused by Du Pont's Accent herbicide. After purchasing the product from Dakota Pride in June 1991, Eide applied it to approximately 160 acres of cropland. He contends the herbicide stunted the growth of the corn, resulting in a substantially lower yield.

[¶3] Eide brought suit on four theories: (1) products liability; (2) negligence; (3) breach of express warranty; and (4) breach of implied warranty. Du Pont moved to dismiss pursuant to SDCL 15-6-12(b)(5), contending Eide's complaint failed to state a claim upon which relief could be granted and that federal law preempted Eide's claims. Dakota Pride joined Du Pont's motion. After oral argument the circuit court allowed the parties to submit briefs on the motion to dismiss and later issued a Memorandum Decision and Order granting summary judgment in favor of Du Pont and Dakota Pride on the basis of federal preemption. The court never notified the parties of its intent to convert the motion to dismiss into one for summary judgment. Eide appeals questioning whether a motion to dismiss may be converted to a motion for summary judgment without notice.

ANALYSIS

[¶4] I. Conversion of Motion to Dismiss

[¶5] If a court intends to treat a motion to [96 SDO 78] dismiss as one for summary judgment, it must advise the parties of such intent. Jensen Ranch, Inc. v. Marsden, 440 NW2d 762, 764 (SD 1989); Norwest Bank Black Hills, N.A. v. Rapid City Teachers Federal Credit Union, 433 NW2d 560, 562 (SD 1988). In Norwest Bank we stated:

Under SDCL 15-6-12(b)(5), where one moves to dismiss for failure to state a claim and "matters outside of the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in §15-6-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by §15-6-56." SDCL 15-6-12(b).

433 NW2d at 562. Notice is mandatory. Id.; Schaub By Schaub v. Moerke, 338 NW2d 109 (SD 1983). The "reasonable opportunity" language in SDCL 15-6-12(b) prevents unfair surprise. Norwest Bank, 433 NW2d at 562. Eide was not afforded an opportunity to submit affidavits or other evidence which may have controverted the court's decision that no genuine issue of material fact existed. Jensen Ranch, 440 NW2d at 764. This ruling was error and we remand. Id.; Norwest Bank, 433 NW2d at 562. Du Pont and Dakota Pride argue, alternatively, that the error was harmless. For the reasons given below, we conclude otherwise.

[¶6] II. Preemption in the Federal Insecticide Fungicide and Rodenticide Act (FIFRA).

[¶7] In its decision granting summary judgment the court's ruling swept over Eide's arguments that part of his case survived federal preemption. In fairness to the circuit court, Eide concedes his pleadings were inartfully drawn. Yet upon careful dissection we conclude a portion of Eide's claims persist apart from FIFRA. Pleadings should not be dismissed for failure to state a claim merely because a court entertains doubts on whether the pleader will prevail in the action. Janklow v. Viking Press, 378 NW2d 875, 877 (SD 1985). Moreover, "[t]he court must go beyond the allegations for relief and 'examine the complaint to determine if the allegations provide for relief on any possible theory.'" Schlosser v. Norwest Bank N.A., 506 NW2d 416, 418 (SD 1993)(quoting 5 C. Wright & A. Miller, Federal Practice and Procedure, §1357 (1971)).

[¶8] For purposes of reviewing a motion made pursuant to SDCL 15-6-12(b)(5), the complaint must be construed in a light most favorable to the pleading party and facts well pled may be accepted as true, with doubts resolved in favor of the pleader. Johnson v. Kreiser's, Inc., 433 NW2d 225, 226 (SD 1988); Janklow, 378 NW2d at 877. In determining whether to grant a motion under SDCL 15-6-12(b)(5), the court considers the complaint's allegations and any exhibits which are attached and accepts the pleader's description of what happened along with any conclusions which may be reasonably drawn therefrom. Schlosser, 506 NW2d at 418. A dismissal motion may be directed to the whole complaint or only specified counts contained in it. Id. The motion is disfavored and should be rarely granted. Id.

[¶9] FIFRA preemption has been analyzed by a number of federal courts.{1} Our review will be limited to those cases decided after the Supreme Court's decision in Cipollone v. Liggett Group, Inc., 505 US 504, 112 SCt 2608, 120 LEd2d 407 (1992), where the Court reviewed the preemptive scope of the Federal Cigarette Labeling and Advertising Act of 1965 and the Public Health Cigarette Smoking Act of 1969. Both laws interpreted labeling requirements similar to those in FIFRA. FIFRA specifically mandates, "[a] State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." [96 SDO 79] 7 USC § 136v(b) (Supp 1993).

[¶10] "The phrase no 'requirement or prohibition' sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common law rules." Cipollone, 505 US at 521, 112 SCt at 2620. Courts applying the Cipollone rationale have routinely held FIFRA preempts state common law claims on improper labeling and failure to warn. See King v. E.I. Du Pont De Nemours & Co., 996 F2d 1346 (1stCir 1993), cert dismissed, ___ U.S. ___, 114 SCt 490, 126 LEd2d 440 (1993); Worm v. American Cyanmid Co., 5 F3d 744 (4thCir 1993); MacDonald v. Monsanto Co., 27 F3d 1021 (5thCir 1994); Shaw v. Dow Brands, Inc., 994 F2d 364 (7thCir 1993); Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 981 F2d 1177 (10thCir 1993), cert denied, ___ US ___, 114 SCt 60, 126 LEd2d 30 (1993); Papas v. Upjohn Co., 985 F2d 516 (11thCir 1993), cert denied, ___ US ___, 114 SCt 300, 126 LEd2d 248 (1993).

[¶11] The Cipollone Court cautioned, however, that §5(b) will not preempt all common law claims. Cipollone, 505 US at 523, 112 SCt at 2621. The Court noted, for example, that the statute did not preempt state law obligations to avoid marketing a product with a manufacturing defect or with a design defect. Id. This rationale was applied by the Fifth Circuit in deciphering a similar FIFRA provision:

[N]ot all common law is preempted by FIFRA ­ § 136v(b) does not preempt common law that is unconcerned with herbicide labeling, nor does it preempt those state laws concerned with herbicide labeling that do not impose any requirement "in addition to or different from" the FIFRA requirements. Thus, we conclude, in accord with the clear language of the statute, that §136v(b) preempts only those state laws that impose or effect different or additional labeling requirements.

MacDonald, 27 F3d at 1024 (citations omitted)(footnote omitted). See also Worm, 5 F3d at 749 (state law claims for negligent testing, formulation and manufacture not preempted by FIFRA).

[¶12] The Eighth Circuit interpreted a comparable preemption provision in the Medical Devices Amendments Act and borrowed the FIFRA analysis applied by the Fourth Circuit:

We agree with the conclusions of the Worm and Moss courts and of the district courts cited above that when a statute only preempts state requirements that are different from or in addition to those imposed by federal law, plaintiffs may still recover under state tort law when defendants fail to comply with the federal requirements.

National Bank of Commerce v. Kimberly-Clark Corp., 38 F3d 988, 993 (8thCir 1994). See also Bice v. Leslie's Poolmart, Inc., 39 F3d 887 (8thCir 1994)(FIFRA preempts state tort law for failure to comply with federal labeling requirements but holding limited to inadequate labeling or failure to warn claims).

[¶13] Eide's claims premised upon inadequate warning or labeling are preempted by FIFRA; his allegations of defective design, manufacture and production are not preempted and should not be dismissed.{2} See Schlosser, 506 NW2d at 417-19. We reverse and remand for further proceedings consistent with this opinion.

[¶14] MILLER, Chief Justice, and SABERS, AMUNDSON and GILBERTSON, Justices, concur.

Footnotes

1. FIFRA provides a detailed scheme for regulating the content and format of labels for herbicides, and it requires all herbicides sold in the United States to be registered with the EPA. See King v. E.I. Du Pont De Nemours & Co., 996 F2d 1346 (1stCir 1993); Worm v. American Cyanamid Co., 5 F3d 744 (4thCir 1993)(discussing the details of FIFRA labeling requirements).

2. Eide's complaint states in part:

12. That said Accent [herbicide] was defective in its design for purposes of band application to corn crops, and said Accent was defective in its production at the time it left Du Pont's factory.

23. That Du Pont negligently caused said Accent to leave its factories in this defective condition.

28. That Plaintiff's damages are directly and proximately caused by Du Pont's negligence in designing said Accent.

29. That Plaintiff's damages are directly and proximately caused by Du Pont's negligence in producing and manufacturing said Accent.