United States District Court, W.D. Washington, Seattle
CITY OF SEATTLE, a municipal corporation located in the County of King, State of Washington, Plaintiff,
MONSANTO COMPANY, et al., Defendant.
ORDER GRANTING DEFENDANTS' MOTION FOR LEAVE TO
AMEND ANSWER AND COUNTERCLAIMS
S. Lasnik, United States District Judge.
matter comes before the Court on Monsanto's motion for
leave to file an amended answer and counterclaims. Dkt. #76.
The City of Seattle opposes the motion based on two aspects
of Monsanto's proposed amended pleading. Dkt. # 79. For
the reasons set forth below, the Court GRANTS Monsanto leave
to file an amended answer and counterclaim.
Court has set forth this case's background with greater
detail in prior orders. See Dkt. # 60. To summarize,
however, defendants (collectively “Monsanto”) are
three successor companies that, until the late 1990s,
comprised different divisions of the food and chemical
conglomerate Monsanto. For decades, Monsanto made and sold
polychlorinated biphenyls (“PCBs”), which are
industrial compounds now regulated as toxic chemicals by
numerous state and federal laws. The City of Seattle alleges
Monsanto manufactured PCBs that now contaminate south
Seattle's East and Lower Duwamish Waterways. Seattle
seeks compensation for costly cleanup efforts the City must
undertake pursuant to several federal and state
administrative actions. Those costs include construction of a
stormwater treatment plant on the Duwamish and investigation
and remediation expenses based on the waterways'
designation as a Super fund Site under the Comprehensive
Environmental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. § 9601 et
seq. Seattle alleges Monsanto is liable for those and
other costs because Monsanto produced and sold PCB compounds
that it knew to be toxic and that now contaminate
March of this year, Monsanto filed an answer and
counterclaims that included eighty-nine affirmative defenses
and two counterclaims. Dkt. # 63. That pleading asserts
Seattle is actually at fault because the City's poorly
maintained drainage infrastructure led to the waterways'
contamination. Monsanto also alleges it incurred response
costs as part of the EPA's investigation of contamination
in the Duwamish. Its original counterclaims assert that,
under CERCLA, Seattle's fault for the contamination
entitles Monsanto to recover its response costs and to obtain
a declaratory judgment to that effect. Dkt. # 63 ¶¶
145-73. Monsanto's original answer and counterclaims also
explained it would eventually seek to amend the pleading to
assert other federal and state claims, but would wait so as
to avoid running afoul of certain notice and
claim-presentment requirements. Dkt. # 63 ¶¶ 25-28.
22, Monsanto filed this motion for leave to amend its
original pleading. Dkt. # 76. It proposes three notable
additions: more factual allegations of response costs
Monsanto incurred; the affirmative defense that the City
lacks standing; and new counterclaims based on the Clean
Water Act and state-law actions of negligence, unjust
enrichment, and contribution. Dkt. # 76-2. The City opposes
Monsanto's addition of the unjust enrichment claim and
supplementary response-cost allegations. Dkt. # 79.
“should freely give leave [to amend pleadings] when
justice so requires.” Fed.R.Civ.P. 15(a)(2). Based on
“the strong policy permitting amendment, ”
Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999),
courts deny leave to amend “only if there is strong
evidence of undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, or
futility of amendment, ” Sonoma Cty. Ass'n of
Retired Emps. v. Sonoma County, 708 F.3d 1109, 1117 (9th
Cir. 2013) (citation, internal quotation marks, and
contends Monsanto's unjust enrichment counterclaim is
“asserted for an improper purpose and is futile.”
Dkt. # 79 at 2. The City offers no legal authority why the
counterclaim is asserted for an improper purpose, and the
Court finds no indication Monsanto brings the counterclaim in
bad faith. Seattle maintains “the [counter]claim is
futile because Monsanto cannot recover on it.” Dkt. #
79 at 5. Seattle's contention closely resembles an
argument that the counterclaim fails to state a claim upon
which relief can be granted. See Fed.R.Civ.P.
12(b)(6). Indeed, there appears to be some overlap between a
failure-to-state-a-claim defense and the contention that an
amendment is futile, see Missouri ex rel. Koster v.
Harris, 847 F.3d 646, 656 (9th Cir. 2017), cert.
denied, 137 S.Ct. 2188 (2017), though denying leave to
amend requires “strong evidence” of futility,
Sonoma Cty. Ass'n of Retired Emps., 708 F.3d at
1117. The City will have ample opportunity to raise its
attack on this counterclaim in a motion to dismiss, but the
City's limited briefing at this stage does not present
“strong evidence” the claim is futile.
Court is aware of the proceedings in City of Spokane v.
Monsanto Co., Case No. 2:15-cv-201, before the Honorable
Salvador Mendoza of the United States District Court for the
Eastern District of Washington. In those proceedings, the
City of Spokane has instituted a similar PCB-related lawsuit
against the same Monsanto corporate descendants that are
defendants in this case. Judge Mendoza granted Monsanto leave
to amend its answer and counterclaims at the same procedural
stage we face on this motion. Order Grant'g Defs.'
Mot. for Leave to File First Am. Answer and Countercls.,
City of Spokane v. Monsanto Co., Case No.
2:15-cv-201, Dkt. # 150 (E.D. Wash. Apr. 25, 2017). Judge
Mendoza also recently dismissed with prejudice Monsanto's
counterclaims, including its unjust enrichment claim under
state law. Order Grant'g Pl.'s Mot. to Dismiss Am.
Countercls., City of Spokane v. Monsanto Co., Case
No. 2:15-cv-201, Dkt. # 167 (E.D. Wash. Jul. 10, 2017).
Monsanto cites the first order as persuasive authority for
granting the motion before the Court. For its part, Seattle
submits the latter order as persuasive authority that
Monsanto's unjust enrichment counterclaim is futile.
Given the strong policy in favor of allowing amendment, the
Court will not deny Monsanto leave to amend and the
opportunity to respond to the City's inevitable motion to
also objects to Monsanto supplementing its factual
allegations of response costs it incurred. Seattle argues
Monsanto should not be allowed to add these factual
allegations because they could have been included in
Monsanto's original answer. The Court finds that argument
unpersuasive given the liberal approach with which courts
treat pleading amendments, in particular a party's first
effort to amend. Seattle also argues the Court should deny
Monsanto leave to amend because Monsanto is simply adding
factual allegations to avoid an adverse ruling on
Seattle's stayed motion to dismiss. This argument is
likewise unpersuasive given that the Civil Rules contemplate
amending pleadings for that very reason. See
foregoing reasons, the Court GRANTS Monsanto's motion to
amend its answer and counterclaims. Monsanto's proposed
“First Amended Answer to Plaintiff's First Amended
Complaint and Counterclaims, ” attached as Exhibit A,