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In re Syngenta AG Mir 162 Corn Litigation

United States District Court, D. Kansas

December 18, 2019

IN RE SYNGENTA AG MIR 162 CORN LITIGATION
v.
Watts Guerra, LLP, et al., No. 18-2408-JWL This Document Relates To: Kellogg, et al. MDL No. 2591

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge.

         On August 13, 2019, the Court ruled on motions to dismiss filed by most defendants. This matter now comes before the Court on the motion by those defendants for reconsideration of that order (Doc. # 229).[1] For the reasons set forth below, the motion is granted in part and denied in part. The motion is granted with respect to plaintiffs' claim for aiding and abetting a breach of fiduciary duty (Count XIII), and that claim is hereby dismissed. The motion is otherwise denied.

         In addition, plaintiffs have moved for reconsideration of that order and for other relief (Doc. # 227). That motion too is granted in part and denied in part. The motion is granted with respect to plaintiffs' request for correction concerning whether a particular defendant has been served. The motion is otherwise denied.

         I. Background

         This action has been transferred into multi-district litigation (MDL), over which this Court presides, involving claims by farmers and others in the corn industry against various related entities known collectively as Syngenta. On December 7, 2018, the Court certified a settlement class and approved a global settlement[2] of claims against Syngenta, including claims that had been pending in the MDL, in a similar consolidated proceeding in Minnesota state court, and in federal court in Illinois. See In re Syngenta AG MIR 162 Corn Litig., 357 F.Supp.3d 1094 (D. Kan. 2018), appeals filed. The Court also awarded one third of the settlement fund as attorney fees. See Id. On December 31, 2018, the Court allocated the attorney fee award among various pools of attorneys (with further allocation within the pools to be completed by the three courts). See In re Syngenta AG MIR 162 Corn Litig., 2018 WL 6839380 (D. Kan. Dec. 31, 2018), appeals filed. In so doing, the Court allocated a portion of the fee award to a pool to compensate individually-retained private attorneys (IRPAs), and it held that any attorney representing a client on a contingent fee basis relating to the settled claims could recover attorney fees only from the Court's fee award and the allocation pools. See id.

         Watts Guerra and various associated counsel filed individual lawsuits against Syngenta in Minnesota state court on behalf of a large number of clients. Those clients were generally excluded from the litigation classes certified in the MDL and in Minnesota state court. Watts Guerra agreed to the settlement, however, and its clients were included in the settlement class. Watts Guerra and associated counsel have been awarded attorney fees from the Minnesota pool allocation, see In re Syngenta AG MIR 162 Corn Litig., 2019 WL 3203356 (D. Kan. July 16, 2019), and they seek further awards of fees from the IRPA pool allocation.

         In the present suit (Kellogg), plaintiffs are six sets of corn growers who were formerly represented by Watts Guerra and associated counsel in the Syngenta litigation. Plaintiffs have asserted claims against those attorneys, including claims under the federal Racketeer Influenced and Corrupt Organizations (RICO) Act, Minnesota statutes, and Minnesota common law. Plaintiffs also seek to assert claims on behalf of a class of approximately 60, 000 farmers who signed retainer agreements with defendants relating to the Syngenta litigation. In general, plaintiffs allege that defendants engaged in a fraudulent scheme to maximize their attorney fees, in which defendants pursued individual lawsuits while misrepresenting or failing to disclose the possibility and benefits of participating in class actions.

         On March 1, 2019, the Court dismissed this action in its entirety for lack of standing. See In re Syngenta AG MIR 162 Corn Litig. (Kellogg), 2019 WL 1002352 (D. Kan. Mar. 1, 2019). On May 21, 2019, however, the Court reconsidered that decision, and it vacated the dismissal with respect to plaintiffs' state-law claims, while reaffirming its dismissal of plaintiffs' claims under federal law for lack of standing. See In re Syngenta AG MIR 162 Corn Litig. (Kellogg), 2019 WL 2184863 (D. Kan. May 21, 2019). On August 13, 2019, the Court issued a Memorandum and Order in which it addressed defendants' additional arguments for dismissal of plaintiffs' state-law claims. See In re Syngenta AG MIR 162 Corn Litig. (Kellogg), 2019 WL 3801719 (D. Kan. Aug. 13, 2019). The Court dismissed all claims except plaintiffs' claim for breach of fiduciary duty (Count VIII) and their claim for aiding and abetting such a breach (Count XIII). See Id. In that order, the Court also denied the following requests by plaintiffs: for certification of a question to the Minnesota Supreme Court; for entry of final judgment on the federal claims under Rule 54(b); for certification for interlocutory appeal from the dismissal of the federal claims; to vacate the dismissal of the federal claims; for recusal; and for suggestion of remand. See Id. Both sides have now filed motions seeking relief with respect to this latest order.

         II. Standard for Reconsideration

         The parties once again disagree about the proper bases for their motions. Plaintiffs challenge dispositive rulings (rulings dismissing claims), and D. Kan. R. 7.3(a) demands that a motion for reconsideration of such a ruling be brought under Fed.R.Civ.P. 59(e) or Fed.R.Civ.P. 60 (whether or not a judgment has been issued). The Tenth Circuit has instructed that the timing of the motion for reconsideration effectively determines the applicable rule. See Van Skiver v. United States, 952 F.2d 1241, 1244-45 (10th Cir. 1991). Plaintiffs have filed their motion in a timely fashion after the Court issued its August 13 order. Accordingly, the Court will consider plaintiffs' motion under Rule 59(e).

         Defendants cite Rule 59(e) as the basis for their motion, but they challenge non-dispositive rulings (rulings in which the Court declined to dismiss claims). Thus, the Court will consider defendants' motion pursuant to D. Kan. Rule 7.3(b).

         Regardless of the rules cited, the Court in its discretion will consider each motion on the merits, as it has done previously in this case, so that each side may have a full opportunity to argue its positions. Grounds warranting reconsideration include a change in controlling law, newly-available evidence, and the need to correct clear error or prevent manifest injustice. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (standard under Rule 59(e)); D. Kan. Rule 7.3(b). “Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law.” See Servants of Paraclete, 204 F.3d at 1012. It is generally not appropriate on a motion for reconsideration “to revisit issues already addressed or advance arguments that could have been raised in prior briefing.” See id.

         III. Plaintiffs' Motion

         A. Request for Correction

         Plaintiffs first request correction of a statement by the Court in its August 13 order. Defendants do not oppose this request, which the Court grants.

         In its March 1 order, the Court noted that defendant Cross Law Firm, LLC had not appeared and that no proof of service had been filed for that defendant. The Court repeated that note in its August 13 order. In fact, however, on March 27, 2019, plaintiffs filed an affidavit stating that service on that defendant was effected in July 2018. Thus, the Court agrees with plaintiffs, and the record reflects, that this defendant has been served.

         B. Civil Conspiracy Claim

         Plaintiffs next seek reconsideration of the Court's dismissal of the conspiracy claim (Count XIV) to the extent based on an underlying breach of fiduciary duty. In its dismissal order, the Court dismissed this claim with the fraud-based claims, on the basis that such claims failed because plaintiffs could not show a pecuniary loss as a matter of law. See Kellogg, 2019 WL 3801719, at *2-3. The Court agrees with plaintiffs, however, that the conspiracy claim was based not only on an ...


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