United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
the court is defendant Nuseed Americas Inc.'s
(“Nuseed”) “Partial Motion to
Dismiss” (Doc. 27). This case involves several tort and
warranty claims following the alleged failure of sunflower
seeds to germinate at the expected rate. Nuseed contends
Counts I, II, III, and V of plaintiff Frontier AG, Inc.'s
(“Frontier”) Amended Complaint are precluded by
the Kansas Product Liability Act (“KPLA”) and by
Kansas's economic loss doctrine. Nuseed further contends
that the implied warranty component of Frontier's
warranty claim in Count IV is barred because there was no
privity between Frontier and Nuseed. In response, Frontier
asserts that the Federal Seed Act preempts the KPLA. And,
Frontier argues Kansas's economic loss doctrine does not
apply here because the sunflower seeds' failure to
germinate resulted in damage to the fields where farmers had
sowed the seeds. Frontier also disputes the proposition that
it must demonstrate privity with Nuseed to make an implied
warranty claim against Nuseed. The court concludes that: (1)
the Federal Seed Act does not preempt the KPLA; and (2)
Frontier, as a corporate entity who did not plant the
sunflower seeds, must allege privity with Nuseed to advance
an implied warranty claim. The court thus grants Nuseed's
Partial Motion to Dismiss (Doc. 27).
court derives the following factual allegations from
Frontier's Amended Complaint (Doc. 24).
“is in the business of global agricultural hybrid
enhanced yield rate seed manufacturing.” Doc. 24 at 1
(Am. Compl. ¶ 2). Frontier is in the “seed retail
business” and purchased “pre-packaged,
pre-labeled confection sunflower seeds manufactured by
Nuseed.” Id. at 2 (Am. Compl. ¶ 9).
Frontier purchased the sunflower seeds from a
wholesaler-Legend Seeds, Inc.-and then sold the seeds to two
farmers. Id. (Am. Compl. ¶¶ 9-10). The
packaging containing the seeds “warranted a germination
rate of 85%.” Id. at 4 (Am. Compl. ¶ 27).
farmers who bought the sunflower seeds from Frontier
complained that the seeds exhibited “erratic and poor
emergence and poor yield.” Id. at 2 (Am.
Compl. ¶ 10). Because the seeds did not germinate at the
expected rate, the farmers purchased additional fertilizer,
used additional water, could not rotate their crops as
scheduled, and “suffered and will continue to suffer
weed intrusion on their cropland.” Id. at 2-3
(Am. Compl. ¶ 10). To resolve the farmers'
complaints, Frontier paid them a sum “in excess of $75,
000.00.” Id. at 3 (Am. Compl. ¶ 11).
then commenced this action against Nuseed, filing a
five-count Amended Complaint. Count I presents a claim for
negligence based on Nuseed's breach of its duty of care
when “design[ing], manufacturing, testing, packaging,
distributing[, ] and inspecti[ng]” the sunflower seeds.
Id. at 3 (Am. Compl. ¶¶ 12-15). Count II
makes a failure to warn claim, contending Nuseed had a duty
to advise Frontier about potential defects in the sunflower
seeds. Id. at 3-4 (Am. Compl. ¶¶ 16-19).
Count III raises a claim for strict liability. Id.
at 4 (Am. Compl. ¶¶ 20-23). Count IV asserts claims
for breach of two distinct warranties-the express warranty of
an 85% germination-rate on the packaging and the implied
warranty of fitness and merchantability. Id. at 4-5
(Am. Compl. ¶¶ 24-29). Count V claims Nuseed is
liable for negligent misrepresentation, contending that,
independent from the 85% germination-rate printed on the
packaging, Nuseed represented that the sunflower seeds
“would germinate at a rate greater than the test result
of a 56% germination rate.” Id. at 5 (Am.
Compl. ¶¶ 30-34).
moves to dismiss Counts I, II, III, and V, claiming that both
the KPLA and Kansas's economic loss doctrine bar these
four claims. Doc. 27; Doc. 28 at 4-7. Nuseed also moves to
dismiss the implied warranty of fitness and merchantability
prong of Count IV's warranty claims, arguing there was no
privity of contract between Nuseed and Frontier because
Frontier bought the sunflower seeds from Legend Seeds, not
Nuseed. Doc. 28 at 7-8.
responds, arguing that the Federal Seed Act preempts the
KPLA. Doc. 30 at 3- 6. And, Frontier argues Kansas's
economic loss doctrine does not apply to any of the claims at
issue currently because the Amended Complaint seeks to
recover more than economic damages, i.e., it also
makes claims for damage to property from weed intrusion.
Id. at 6-7. On Count V, Frontier separately argues
that Kansas courts do not apply the economic loss doctrine to
claims for negligent misrepresentation. Id. at 7-8.
Finally, on the implied warranty portion of Count IV's
claim, Frontier argues that it need not establish privity
because implied warranties extend to natural persons who may
be expected to use a product-in this case, the two farmers
who planted the sunflower seeds. Id. at 9-10.
Reply, Nuseed disputes that the Federal Seed Act preempts the
KPLA. But it also argues that even if the Federal Seed Act
did preempt the KPLA, it also would preempt state common law
tort actions. Doc. 31 at 1-4. Nuseed disputes Frontier's
argument for overcoming Kansas's economic loss doctrine,
asserting that Frontier-who is suing on its own behalf and
not for the two farmers-only suffered monetary damages, not
property damage. Id. at 4-8. And finally, Nuseed
argues Frontier's implied warranty argument is misplaced
because Frontier was not an intended user of the sunflower
seeds and is not a “natural person” for purposes
of the exception to the privity requirement. Id. at
Standards of Review
Rule 12(b)(6) Standard
considering a motion to dismiss under Rule 12(b)(6), the
court must assume that the factual allegations in the
complaint are true. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). But this requirement does not extend to every
assertion made in a complaint. The court is “‘not
bound to accept as true a legal conclusion couched as a
factual allegation.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice” to state a claim for relief. Bixler v.
Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting
Iqbal, 556 U.S. at 678). Also, the complaint's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citations omitted).
survive a motion to dismiss under Rule 12(b)(6), a complaint
“must contain sufficient factual matter, accepted as
true, to ‘state a claim for relief that is plausible on
its face.'” Iqbal, 556 U.S. at 679
(quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. at 678 (citing Twombly,
550 U.S. at 556). “The plausibility standard is not
akin to a ...