The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ROBERT S. HOGARTY,
Plaintiff,
Case No. 5:25-cv-122-KKM-PRL
ORGILL, INC. et al.,
Defendants.
ORDER
Robert Hogarty sues Orgill, Inc., Monsanto Company, Bayer
Corporation, and Bayer CropScience LP, for injuries he sustained when a
pump sprayer exploded. 3d Am. Compl. (Doc. 77). Bayer Corporation moves to
dismiss for lack of personal jurisdiction. Bayer Corp. MTD (Doc. 80). Monsanto
and Bayer CropScience jointly move to dismiss for failure to state a claim.!
Joint MTD (Doc. 84). Orgill moves to dismiss for failure to state a claim and
moves to strike Hogarty’s request for punitive damages. Orgill MTD (Doc. 82).
1 Monsanto originally moved on its own, (Doc. 81), and Bayer CropScience did not
timely move. After I entered an order noting Bayer CropScience’s failure to timely
respond, (Doc. 83), Monsanto and Bayer CropScience jointly moved to dismiss and
explained that Bayer CropScience’s failure to join the first motion was a “clerical
mistake” by counsel, who represents both defendants. See Joint MTD at 1-2 □□□□
Because Hogarty responded only to the joint motion and did not argue that he was
prejudiced by allowing Bayer CropScience’s untimely motion, see Resp. to Joint MTD
at 2-3, I accept the joint motion and deny Monsanto’s original motion as moot.
Hogarty opposes each motion. Resp. to Bayer Corp. (Doc. 88); Resp. to Joint
MTD (Doc. 92); Resp. to Orgill (Doc. 89). Bayer Corporation replies in support
of its motion. Reply (Doc. 96). For the reasons explained below, I grant Bayer
Corporation’s motion, and grant in part the joint motion and Orgill’s motion—
except insofar as it is a construed motion to strike, which I deny.
I. BACKGROUND
Orgill is a corporation that manufactures various products, including
two-gallon pump sprayers branded as a “Landscapers Select” product. 3d Am.
Compl. ¶¶ 5, 10–12. Monsanto is a corporation that is “responsible for”
developing, marketing, and selling the herbicide Roundup. See id. ¶ 6.
Monsanto is owned by Bayer AG. Id. Bayer Corporation is another subsidiary
of Bayer AG and is alleged by Hogarty to have also played a role in developing,
marketing, and selling Roundup. See id. ¶ 7. Bayer CropScience is a limited
partnership that is also “responsible for” developing, marketing, and selling
Roundup. Id. ¶ 8.
On February 7, 2023, Hogarty applied a solution of water and Roundup
Weed & Grass Killer Concentrate Plus to weeds in a flower bed at a property
in Ocala, Florida. Id. ¶¶ 1, 18. Hogarty mixed the water and Roundup in
accordance with the instructions on the package and used a two-gallon pump
sprayer manufactured by Orgill to spray the solution. Id. ¶ 18. “In the course
of applying” the solution, the pump sprayer exploded when “it was
approximately twelve inches from [Hogarty’s] face.” Id. ¶ 19. Hogarty
sustained “a concussive impact primarily to his left eye, to his face and to his
head given the force of the explosion, a physical impact to his left eye and the
area of his face around such eye from a fragment of the tank of the pump
sprayer.” Id. Hogarty also suffered a “high pressure exposure” of Roundup in
or on “his eyes, face, head, nose, mouth, arms, legs, and the front of his body.”
Id.
Since the explosion, Hogarty has dealt with concussion symptoms,
“blurred and double vision,” “ceaseless headaches,” and “other eye related
issues.” Id. ¶ 24. “The blurred/double vision, other eye issues, and headaches
continue unabated to this day despite extensive medical treatment.” Id.
Hogarty initiated this action on February 18, 2025, and, after multiple
rounds of dismissed complaints for shotgun pleading issues, filed the operative
third amended complaint on November 17, 2025.2 He asserts strict product
liability and negligence claims against all defendants and fraudulent and
negligent misrepresentation claims against Monsanto, Bayer Corporation, and
Bayer CropScience. See generally 3d Am. Compl.
2 Monsanto, Bayer CropScience, and Orgill argue that the third amended complaint
is another shotgun complaint. See Joint MTD at 16–17; Orgill MTD at 3–5. The
gravamen of a shotgun pleading is that it fails to provide the defendants “adequate
notice of the claims against them and the grounds upon which each claim rests.”
Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015).
Although not a model complaint, this iteration provides adequate notice.
II. LEGAL STANDARDS
A claim for relief must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8. This standard
“does not require ‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ ” Id. (quoting
Twombly, 550 U.S. at 555). Nor do “naked assertion[s]” devoid of “further
factual enhancement” suffice. Twombly, 550 U.S. at 557.
A. Federal Rule of Civil Procedure 12(b)(2)
A defendant may move to dismiss a claim for relief under Federal Rule
of Civil Procedure 12(b)(2) for lack of personal jurisdiction. A plaintiff
attempting to exert personal jurisdiction over a nonresident defendant “bears
the initial burden of alleging in the complaint sufficient facts to make out a
prima facie case of jurisdiction.” United Techs. Corp. v. Mazer, 556 F.3d 1260,
1274 (11th Cir. 2009). If a defendant submits an affidavit disputing the
plaintiff’s allegations, “the burden shifts back to the plaintiff to produce
evidence supporting personal jurisdiction, unless the defendant’s affidavits
contain only conclusory assertions that the defendant is not subject to
jurisdiction.” Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino,
447 F.3d 1357, 1360 (11th Cir. 2006). Where factual conflicts exist, “the district
court must construe all reasonable inferences in favor of the plaintiff.” Madara
v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).
B. Federal Rule of Civil Procedure 12(b)(6)
“To survive a motion to dismiss” for failure to state a claim, a plaintiff
must plead sufficient facts to state a claim that is “plausible on its face.” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible on its
face when a “plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. A court must accept the complaint’s factual allegations as true and construe
them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d
1282, 1284 (11th Cir. 2008). Courts should limit their “consideration to the
well-pleaded factual allegations, documents central to or referenced in the
complaint, and matters judicially noticed.” La Grasta v. First Union Sec., Inc.,
358 F.3d 840, 845 (11th Cir. 2004), abrogated on other grounds by Twombly,
550 U.S. 544.
C. Federal Rule of Civil Procedure 12(f)
Federal Rule of Civil Procedure 12(f) permits a court to “strike from a
pleading . . . any redundant, immaterial, impertinent, or scandalous matter.”
“An allegation is ‘impertinent’ or ‘immaterial’ when it is neither responsive nor
relevant to the issues involved in the action.” Matter of Olympia Dev. Grp., Inc.,
No. 9-cv-2230, 2010 WL 11629141, at *2 (M.D. Fla. Feb. 3, 2010), report and
recommendation adopted sub nom. Olympia Dev. Grp., Inc. v. Non-Filing
Claimants, No. 9-cv-2230, 2010 WL 11629137 (M.D. Fla. Feb. 22, 2010).
“The purpose of a motion to strike is to clean up the pleadings, streamline
litigation, and avoid unnecessary forays into immaterial matters.” Hutchings
v. Fed. Ins. Co., No. 8-cv-305, 2008 WL 4186994, at *2 (M.D. Fla. Sept. 8, 2008)
(citation modified). “It is not intended to procure the dismissal of all or part of
a complaint.” Id. (citation modified). Motions to strike are a “drastic remedy”
and are generally disfavored. Schmidt v. Life Ins. Co. of N. Am., 289 F.R.D.
357, 358 (M.D. Fla. 2012). Therefore, “a court will not exercise its discretion
under the rule to strike a pleading unless the matter sought to be omitted has
no possible relationship to the controversy, may confuse the issues, or
otherwise prejudice a party.” Reyher v. Trans World Airlines, Inc., 881 F. Supp.
574, 576 (M.D. Fla. 1995); see also Schmidt, 289 F.R.D. at 358.
III. ANALYSIS
A. Personal Jurisdiction
Bayer Corporation asserts that all claims against it must be dismissed
because, as a nonresident entity, Bayer Corporation is not subject to personal
jurisdiction in Florida. See Bayer Corp. MTD at 2–3; see also FED. R. CIV. P.
12(b)(2). Bayer Corporation argues that it is not subject to general jurisdiction
in Florida and that, despite Hogarty’s allegations to the contrary, Bayer
Corporation did not engage in conduct that brings it within the reach of
Florida’s long-arm statute or that would make personal jurisdiction here
comport with due process. See Bayer Corp. MTD at 7–11.
In support, Bayer Corporation relies on the declaration of Darcey
Rhoades, who is an “Assistant Secretary” of Monsanto and a “Vice President”
of Bayer Corporation. See Rhoades Decl. (Doc. 43-1) ¶ 3. Bayer Corporation is
an Indiana corporation with a principal place of business in New Jersey. Id.
¶ 7. “Since January 1, 2003, Bayer Corporation has been a non-operating
holding company and has not and does not conduct an active trade or business.”
Id. ¶ 8. “Bayer Corporation has never operated Monsanto.” Id. ¶ 10. Further,
“Bayer Corporation has never researched, designed, tested, developed,
manufactured, packaged, marketed, promoted, advertised, distributed,
labeled, sold, or provided warnings for” Roundup. Id. ¶ 11. “Bayer Corporation
has never sold” Roundup in Florida and “has never shipped or distributed”
Roundup into Florida. Id.
Although Hogarty agrees with Bayer Corporation that it is not subject to
general jurisdiction in Florida, he resists the conclusion that there is no specific
personal jurisdiction in Florida. See Resp. to Bayer Corp. at 4–7. Because
Hogarty’s accusations fail to overcome Bayer Corporation’s contrary
declaration, I dismiss the claims against Bayer Corporation for lack of personal
jurisdiction.
Federal courts use a two-step inquiry to determine whether personal
jurisdiction exists over a nonresident defendant. See Horizon Aggressive
Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir. 2005).
Looking to state law, the court must first “determine whether the exercise of
jurisdiction is appropriate under the forum state’s long-arm statute.” Mut.
Serv. Ins. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004). Second, a
court must ensure that exercising jurisdiction comports with the Due Process
Clause of the Fourteenth Amendment. See Horizon Aggressive Growth, 421
F.3d at 1166. Under the Due Process Clause, a court may exercise specific
jurisdiction over a nonresident entity based on its “commission of some single
or occasional acts” in the forum so long as the claim itself “aris[es] out of or
relate[s] to [those] contacts with the forum.” Daimler AG v. Bauman, 571 U.S.
117, 127 (2014) (quoting International Shoe Co. v. Washington, 326 U.S. 310,
317 (1945), and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414 n.8 (1984)); see also Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915, 927 (2011) (“Flow of a manufacturer’s products into the
forum . . . may bolster an affiliation germane to specific jurisdiction.”). For
specific jurisdiction to attach, a defendant must “ ‘purposefully avail[]’ itself of
the privilege of conducting activities—that is, purposefully establish[]
contacts—in the forum state and there must be a sufficient nexus between
those contacts and the litigation.” Diamond Crystal Brands, Inc. v. Food
Movers Int’l, Inc., 593 F.3d 1249, 1267 (11th Cir. 2010).
Starting with step one, “[u]nder Florida’s long-arm statute, a defendant
is subject to either specific jurisdiction, which applies if the claim arises out of
or is related to defendant’s contacts with Florida, or general jurisdiction, which
applies regardless of whether the claims involve the defendant’s activities in
Florida if the defendant engages in substantial and not isolated activity in
Florida.” Garrett-Alfred v. Facebook, Inc., 540 F. Supp. 3d 1129, 1136 (M.D.
Fla. 2021); see SkyHop Techs., Inc. v. Narra, 58 F.4th 1211, 1223 (11th Cir.
2023) (explaining that Florida’s long-arm statute reaches “anyone who
personally or through an agent engages in any of nine enumerated acts, as long
as the cause of action arises from that act.” (quoting § 48.193(1)(a), Fla. Stat.)).
Accordingly, a court may exercise jurisdiction over a nonresident defendant
that “[o]perat[es], conduct[s], engag[es] in, or carr[ies] on a business or
business venture,” or commits a tortious act in Florida, or causes injury to
persons within Florida “arising out of an act or omission by the defendant
outside” of Florida. See § 48.193(1)(a), Fla. Stat.
Here, although Hogarty’s complaint alleges sufficient facts to make a
prima facie case for specific jurisdiction, his jurisdictional evidence fails to
overcome Bayer Corporation’s declaration that it neither conducts operations
in Florida nor controls Monsanto’s activities in Florida. To start, the complaint
alleges that Bayer Corporation is “responsible for designing, developing,
formulating, manufacturing, testing, labeling, determining warnings,
packaging, advertising, promoting, marketing, distributing and/or selling
various forms of the herbicide marketed and sold principally branded as
Roundup.” 3d Am. Compl. ¶ 7; see, e.g., id. ¶¶ 87–88 (making substantially
similar allegations), 90 (alleging that Bayer Corporation placed defective
Roundup into the stream of commerce after which the Roundup “reached the
intended consumers, handlers, users and other persons coming into contact
with and exposed to this product in Florida, including Plaintiff”). The
complaint essentially repeats these conclusory allegations in the other counts
against Bayer Corporation. See, e.g., id. ¶¶ 96–98, 102–08, 114–20.
Bayer Corporation’s declaration categorically refutes these allegations
by asserting that Bayer Corporation is “a non-operating holding company”
without “an active trade or business” and “has never researched, designed,
tested, developed, manufactured, packaged, marketed, promoted, advertised,
distributed, labeled, sold, or provided warnings for” Roundup anywhere,
including in Florida. See Rhoades Decl. ¶¶ 8, 11. Absent contrary evidence, the
declaration establishes that Bayer Corporation is not “[o]perating, conducting,
engaging in, or carrying on a business or business venture in [Florida]” and did
not engage in the alleged tortious or injurious conduct either directly or
“through an agent.” See § 48.193(1)(a), Fla. Stat. The burden thus returns to
Hogarty “to produce evidence supporting personal jurisdiction.” Stubbs, 447
F.3d at 1360. Hogarty fails to carry that burden.
Hogarty responds that the declaration of Darcey Rhoades “should be
given no evidentiary value or effect.” See Resp. to Bayer Corp. at 10. Hogarty
also asserts that there is jurisdiction because Bayer Corporation “is doing
business” in Florida because it “is a corporation registered to do business in
Florida and which maintains a registered agent for service of process.” See id.
at 6–7. Hogarty appears to also contend that Bayer Corporation’s status as a
“parent . . . of the indirect subsidiary” Monsanto and consequential “right, and
the commensurate obligation, to manage Monsanto” provide a basis for specific
jurisdiction over Bayer Corporation. See id. at 17–18. I address the latter two
arguments before turning to Hogarty’s contentions regarding the declaration.
As the complaint alleges, Bayer Corporation is “a registered and active
corporation in the State of Florida” with a “registered agent for service of
process.” 3d Am. Compl. ¶ 7. This does not mean that Bayer Corporation
operates, conducts, engages in, or carries on a business or business venture in
Florida. See Killam v. Air & Liquid Sys., Inc., No. 8:16-cv-2915-T-33TBM, 2017
WL 119778, at *3 (M.D. Fla. Jan. 12, 2017) (rejecting the argument that
allegations of authorization to do business in Florida are sufficient to qualify
as operating a business in Florida under § 48.193(1)(a)(1), Florida Statutes).
Further, to accept Hogarty’s argument would be to effectively find that
registering for business in Florida subjects Bayer Corporation to general
jurisdiction here. The Eleventh Circuit has denied this argument. See Waite v.
All Acquisition Corp., 901 F.3d 1307, 1320 (11th Cir. 2018) (holding that a
foreign corporation’s registration to do business and appointment of an agent
for service of process in Florida does not amount to “consent to general
jurisdiction in the Florida courts” under Florida law). Bayer Corporation’s
registration in Florida is of no relevance to whether personal jurisdiction exists
over it.
It is difficult to pin down Hogarty’s theory for why Bayer Corporation is
subject to personal jurisdiction in Florida because of its status as a
“parent . . . of the indirect subsidiary” Monsanto. See Resp. to Bayer Corp. at
17–18. Rather than aver that Bayer Corporation directed Monsanto’s actions
in Florida, the theory appears to be that Bayer Corporation could and should
have directed Monsanto’s actions. Compare id. at 5 (disavowing that his theory
is that Monsanto was an agent for Bayer Corporation or vice versa), with id. at
17–18 (arguing that Bayer Corporation “had the right” and “obligation” to
manage Monsanto and by “fail[ing] to manage effectively” it “contributed to”
Monsanto’s wrongful actions). Thus, by its apparent failure to operate
Monsanto, Bayer Corporation is responsible for Monsanto’s actions. Even
harder to pin down are any allegations in the complaint to that end. The closest
the complaint comes is the allegation that “Bayer Corp[oration] performs all
such functions for itself and for the other Roundup Defendants and in
consultation and coordination with the other Roundup Defendants.” 3d Am.
Compl. ¶ 7. This does not subject Bayer Corporation to personal jurisdiction in
Florida even after liberally construing this allegation as supporting Hogarty’s
theory.
A foreign parent corporation is not subject to jurisdiction in Florida
merely because its subsidiary does business there. Meier ex rel. Meier v. Sun
Int’l Hotels, Ltd., 288 F.3d 1264, 1272 (11th Cir. 2002); Reynolds Am., Inc. v.
Gero, 56 So. 3d 117, 120–121 (Fla. 3d DCA 2011) (“It is, of course, well settled
that a parent corporation and its wholly-owned subsidiary are separate and
distinct legal entities.” (citation modified)). “Where the subsidiary’s presence
in the state is primarily for the purpose of carrying on its own business and the
subsidiary has preserved some semblance of independence from the parent,
jurisdiction over the parent may not be acquired on the basis of the local
activities of the subsidiary.” Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286,
1293 (11th Cir. 2000) (citation modified). In other words, a subsidiary’s
contacts only justify jurisdiction over the parent when the subsidiary is a mere
“alter ego,” see Daimler, 571 U.S. at 134–35, or when “a parent corporation
exerts such extensive operational control over a subsidiary that the subsidiary
is no more than an agent existing to serve only the parent’s needs,” Gadea v.
Star Cruises, Ltd., 949 So. 2d 1143, 1146 (Fla. 3d DCA 2007); see also Enic,
PLC v. F.F. South & Co., 870 So. 2d 888, 891 (Fla. 5th DCA 2004) (“The amount
of control exercised by the parent must be high and very significant.”).
Hogarty’s theory fails. As noted above, he admits that Monsanto and
Bayer Corporation do not have an agency relationship. See Resp. to Bayer
Corp. at 5. He similarly admits that Monsanto was not an “alter ego” of Bayer
Corporation. See id. at 4. It is irrelevant that Bayer Corporation might have
the right to control Monsanto. See, e.g., Dev. Corp. of Palm Beach v. WBC
Const., L.L.C., 925 So. 2d 1156, 1161 (Fla. 4th DCA 2006) (“The amount of
control exercised by the parent must be high and very significant.” (emphasis
added)); Abramson v. Walt Disney Co., 132 F. App’x 273, 276 (11th Cir. 2005)
(per curiam) (“Because the mere presence of a wholly owned subsidiary is
insufficient to form a basis for the assertion of personal jurisdiction, one of the
factors to be considered is the amount of control exercised by the foreign
corporation.” (citation modified)).
Hogarty puts forth roughly four arguments for discrediting Bayer
Corporation’s declaration: (1) because Rhoades’s LinkedIn indicates that
Rhoades has worked in a variety of positions throughout the broader Bayer AG
corporate umbrella, Rhoades’s declaration was not made based upon personal
knowledge; (2) it is unbelievable that there would be a corporate record that
states that Bayer Corporation was not involved in Roundup, and if there is, it
should be produced in place of the declaration; (3) Florida Secretary of State
records establish that Bayer Corporation had corporate officers related to
various “divisions” and that Bayer Corporation “acted as the managing
member” of limited liability companies after 2003; and (4) a website that
Hogarty purports is operated by Bayer Corporation hosts a link to a non-Bayer
Corporation website featuring a letter from Bayer AG promoting the safety of
Roundup, thus Bayer Corporation is, contrary to the declaration, “marketing,
promoting, or advertising Roundup.” See Resp. to Bayer Corp. at 10–17.
Rhoades’s declaration is “based on [her] personal knowledge and [her]
knowledge of company documents.” Rhoades Decl. ¶ 2. Hogarty cites no case
law for the proposition that Rhoades’s declaration cannot include personal
knowledge learned from a review of corporate documents. Nor does he cite any
case law requiring those documents be produced in place of a declaration for
purposes of a 12(b)(2) motion. Courts have allowed, at summary judgment,
declarations on behalf of a corporate defendant that were based on the
declarant’s knowledge after reviewing corporate documents. See Atl. Marine
Fla., LLC v. Evanston Ins. Co., No. 3:08-cv-538-J-20TEM, 2010 WL 1930977,
at *1–2 (M.D. Fla. May 13, 2010) (collecting cases and noting a lack of cases to
the contrary). I see no reason why the same cannot be done under these
circumstances. As to Hogarty’s second argument, the burden shifting rule does
not prescribe specific kinds of evidence that must be produced by either party.
See, e.g., Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir.
1996) (“When a defendant raises through affidavits, documents or testimony a
meritorious challenge to personal jurisdiction, the burden shifts to the plaintiff
to prove jurisdiction by affidavits, testimony or documents.” (citation omitted)).
I reject both arguments.
Hogarty’s reliance on the Florida Secretary of State’s records is
unavailing. That Bayer Corporation might have corporate officers with titles
that appeared to relate to various “operating divisions” or that it served as a
managing member of limited liability companies in 2005, 2007, and 2009 does
not disprove any of the representations in Rhoades’s declaration. See Resp. to
Bayer Corp. at 21–22. And, even if these facts did call into question any
averments, they certainly do not belie the key statements that Bayer
Corporation “has never operated Monsanto,” has had nothing to do with
Roundup, and has never sold, shipped, or distributed Roundup in Florida. See
Rhoades Decl. ¶¶ 10–11.
The fact that Bayer Corporation might own and operate a website that
includes a link that takes visitors to a separate website that is not operated by
Bayer Corporation where they can view a letter authored by Bayer AG that
promotes Roundup is also insufficient to refute Bayer Corporation’s
declaration that it has not advertised, promoted, or marketed RoundUp.
Courts decline to conclude that including in messages links to a website that
contained promotions constituted advertising. See An Phan v. Agoda Co. Pte.
Ltd., 351 F. Supp. 3d 1257, 1266 (N.D. Cal. 2018) (“To hold otherwise would
run headlong into the decisions in this Circuit and others holding that
inclusion of the link to a defendant’s website, without more, does not render a
message advertising or telemarketing.”), aff’d sub nom. Phan v. Agoda Co. Pte.
Ltd., 798 F. App’x 157 (9th Cir. 2020). This is even more so when a defendant
did not send a message with such a link and merely passively included the link
on its website. Similarly, in the securities context, the Supreme Court held that
even directly hosting on one’s website a document authored by another did not
constitute “adopt[ing] the document as [the host’s] own statement or
exercis[ing] control over its content.” Janus Cap. Grp., Inc. v. First Derivative
Traders, 564 U.S. 135, 148 n.12 (2011). Bayer Corporation’s inclusion of the
link (which makes no mention of “Roundup”) on its website, see Resp. to Bayer
Corp. at 15, does not undermine Bayer Corporation’s declaration that it has
not advertised, promoted, or marketed Roundup.
Hogarty fails to respond to Bayer Corporation’s declaration with
“evidence supporting jurisdiction.” Mazer, 556 F.3d at 1274 (quoting Meier, 288
F.3d at 1269). After accounting for the unrebutted declaration, there are no
allegations against Bayer Corporation that bring it within the reach of
Florida’s long-arm statute or that would make the exercise of jurisdiction over
it comport with the Due Process Clause of the Fourteenth Amendment. Thus,
I dismiss all counts against Bayer Corporation without prejudice for lack of
personal jurisdiction.
B. Failure to State a Claim for Relief
The remaining defendants argue that I should dismiss Hogarty’s
complaint for failing to state a claim. Monsanto and Bayer CropScience jointly
move to dismiss the strict product liability, fraudulent misrepresentation, and
negligent misrepresentation counts against them.3 Joint MTD. Because the
allegations against them do not differ in any material way, compare 3d Am.
Compl. ¶¶ 46–85, with id. ¶¶ 126–165, I analyze them together before turning
to Orgill’s contentions for dismissing the strict product liability count.
1. Hogarty’s strict product liability claims against
Monsanto and Bayer CropScience survive as to design
and manufacturing defect theories
“[T]here are three elements to a strict liability products claim under
Florida law: (1) a relationship between the defendant and the product; (2) a
3 Monsanto, Bayer CropScience, and Orgill appear not to move to dismiss the
negligence claims against them. Although Monsanto and Bayer CropScience assert
that “the third amended complaint should be dismissed,” Joint MTD at 7 (citation
modified), and Orgill states that Hogarty “fails to adequately allege . . . negligence
claims,” Orgill MTD at 5, none of them make any arguments about the negligence
claims. Beyond cursorily stating that “Plaintiff asserts both strict-liability and
negligence-based products liability claims . . . [t]he only difference is that negligence
claims require a showing of negligence,” Joint MTD at 7, Monsanto and Bayer
CropScience do not ever address the negligence claims or argue for their dismissal.
The contention that the only difference is that negligence must be shown is an
oversimplification. For its part, Orgill never mentions negligence again. To the extent
any of these defendants moved to dismiss the negligence claims, I decline to formulate
their own arguments for them and their motions are denied as to those claims.
defect which caused the product to be unreasonably dangerous; (3) causation
between the defect and the harm suffered by the user.” Bailey v. Janssen
Pharmaceutica, Inc., 288 F. App’x 597, 607 (11th Cir. 2008) (per curiam).
Within the realm of product liability, “there are three basic families of defects
that may be the subject of strict product liability: manufacturing defects,
design defects, and failures to warn.” Force v. Ford Motor Co., 879 So. 2d 103,
106 (Fla. 4th DCA 2004).
Hogarty alleges all three defect theories. See 3d Am. Compl. ¶¶ 46–48,
126–28. Monsanto and Bayer CropScience move to dismiss on the basis that
Hogarty’s complaint fails to state a claim under any of the theories.4 Joint MTD
at 8–13. Beginning with the design defect theory, they claim, oddly, that
Hogarty does not allege that the defect is the proximate cause of his injury and
that Hogarty does not allege the injuries that he sustained. Id. at 9. To be clear,
Hogarty alleges that he suffered and continues to suffer “blurred and double
vision, other eye related issues, and intractable, ceaseless headaches caused
by injury to the left supratrochlear nerve and trigeminal nerve root V1.” 3d
4 Throughout their motion, Monsanto and Bayer CropScience rely on case law
concerning the summary judgment stage. See, e.g., Joint MTD at 10. For the most
part, these are entirely inapplicable to the instant motion, and where they might have
some application, I find them unpersuasive given the low bar for pleading a strict
product liability claim under Florida law. Similarly, although they repeatedly argue
for dismissal based on allegations that Hogarty included in earlier iterations of his
complaint and that he did not include in the operative complaint, see e.g., id. at 4, 9,
15–16, Monsanto and Bayer CropScience identify no authority that would allow me
to dismiss on such grounds. I decline to do so.
Am. Compl. ¶ 24. He also alleges that the defects in Roundup caused or
substantially contributed to these eye injuries and headaches. See id. ¶¶ 23–
24, 53, 133. Monsanto and Bayer CropScience also argue that a design defect
theory fails because Hogarty “does not plausibly allege facts that support the
claim that Roundup was unreasonably dangerous.” Id. at 8–9.
Although the Florida Supreme Court has expressed a preference, in most
circumstances, for relying on the consumer expectations test to determine
whether a product is defective, Florida law also allows parties to argue based
on the risk utility test to determine when a design defect has rendered a
product unreasonably dangerous. See Aubin v. Union Carbide Corp., 177 So.
3d 489, 494–95, 511–12 (Fla. 2015) (“The parties may, in proving or defending
against such claims, present evidence that a reasonable alternative design
existed and argue whether the benefit of the product’s design outweighed any
risks of injury or death caused by the design.”). The consumer expectations test
considers whether a product “failed to perform as safely as an ordinary
consumer would expect when used as intended or in a reasonably foreseeable
manner.” Id. at 503. The risk utility test considers whether “the risk of danger
in the design outweighs the benefits.” Force, 879 So. 2d at 105 (citation
modified). Although some courts treat the risk utility test as separate from the
reasonable alternative design test, the Florida Supreme Court appears to
interpret the latter as a sub-test that can be used (or may even be necessary)
to prove the former. See Aubin, 177 So. 3d at 505 (defining the “risk utility test”
as whether “the foreseeable risks of harms posed by the product could have
been reduced or avoided by the adoption of a reasonable alternative
design . . . and the omission of the alternative design renders the product not
reasonably safe” (citation modified)), 511–12 (describing the two tests as part
of the same analysis); but see id. at 505 (describing the Third Restatement of
Torts as adding the reasonable alternative design test to the risk utility test,
suggesting they stand on their own).
As Monsanto and Bayer CropScience recognize, Hogarty alleges that
Roundup’s defect is that it is designed or manufactured such that it is too
neurotoxic to be used by the public. See Joint MTD at 9; Resp. to Joint MTD at
10. Hogarty’s complaint is not a model of clarity, but the bar is low, and he
passes it. Hogarty alleges that the Roundup “was defective in design and
formulation and dangerous and toxic to an extent beyond that which an
ordinary consumer would contemplate.” 3d Am. Compl. ¶¶ 48, 128. Glyphosate
is a toxic substance, id. ¶ 16, and the Roundup contained it and “adjuvants and
surfactants,” id. ¶ 17. Although Hogarty does not know the “specifics” of the
makeup of the Roundup because it is a trade secret, “adjuvants and surfactants
can enhance and increase the toxic effect of a toxic substance such as
glyphosate.” Id. Thus, the Roundup used was defective because the resulting
toxicity made it “unreasonably dangerous to the users,” caused it to “fail[] to
perform as safely as an ordinary consumer would expect when used as
intended,” and because “there were alternative, safer designs and formulations
that were feasible.” Id. ¶¶ 48, 128.
Hogarty is correct that at this stage he is not required to provide more
detailed allegations regarding the defect, which would be difficult considering
his lack of information regarding the complete formula for the Roundup in
question. See Resp. to Joint MTD at 12; see also Godelia v. Doe 1, 881 F.3d
1309, 1318–19 (11th Cir. 2018) (holding that it was sufficient to merely allege
that a product “was defective and nonconforming,” “that those defects caused
[the plaintiff’s] injuries,” and that “ ‘violation of federal regulations noted
above’ caused the defect” because “[c]ontrary to [the defendant’s argument],
[the plaintiff] need not state in his complaint the precise defect”); Bailey, 288
F. App’x at 607–08 (finding sufficient allegations that were “conclusory” but
also suggested “possible defects” and “identified the source of the defect”). In
support, Godelia cited Small v. Amgen, Inc., 2 F. Supp. 3d 1292, 1297 (M.D.
Fla. 2014), which rejected a similar argument that a defective design claim
should be dismissed for “fail[ing to] allege a single fact in support of the
products unreasonably dangerous condition.” Citing to Bailey, Small concluded
that an allegation that a product “contained an unreasonably dangerous defect
in design or formulation in that, when it left the hands of the Defendants, an
average consumer could not reasonably anticipate the dangerous nature of [the
product] nor fully appreciate the attendant risk of injury associated with [the
product]” was sufficient when paired with allegations of identified injury
caused by the defect. Id. At the pleading stage, plaintiffs are not required to
“set forth the precise chemical, biological, or other process by which [the
product] causes [the identified injury]” as long as they “place defendants on
notice of the type of harm allegedly caused by the design defect.” See id.
Hogarty has done as much.
Next, Monsanto and Bayer CropScience argue that dismissal is
warranted as to any manufacturing defect theory because there are no
allegations that the Roundup that Hogarty contacted did not conform to its
intended design. Joint MTD at 10. This argument is unavailing—at least until
later stages of this case. For now, in this regard, he is not required to allege
anything more than the existence of a defect that caused the product to be
unreasonably dangerous. See Bailey, 288 F. App’x at 606–07 (listing the
elements). And, even if Hogarty had pleaded the manufacturing theory merely
as an alternative to his design defect theory and without inclusion of
substantial factual allegations unique to the manufacturing theory, Florida
law appears to allow it. See id. at 605–07 (“We are not convinced that Florida
law applies a rigid distinction among the various theories of recovery available
to plaintiffs under strict products liability such that a plaintiff would be
required to expressly plead ‘design defect’ versus ‘manufacturing defect’ at the
complaint stage. . . . It is difficult for a plaintiff at this stage in the litigation to
know the source of the defect that was responsible for the harm caused:
whether there was a surprising manufacturing problem[ or] a systemic issue
with a product in its design . . . .”).
Under a failure to warn theory, the defect that causes the product to be
unreasonably dangerous is the failure to “adequately warn of a particular risk
that was known or knowable in light of the generally recognized and prevailing
best scientific and medical knowledge available at the time of manufacture and
distribution.” Griffin v. Kia Motors Corp., 843 So. 2d 336, 339 (Fla. 4th DCA
2003) (citation modified). Monsanto and Bayer CropScience aver that
Hogarty’s claim, insofar as it asserts a failure to warn theory, should be
dismissed because he fails to “allege the content of the warning label or
describe the warning’s inadequacies.” Joint MTD at 12 (quoting Flaherty v. E-
Go Bike, LLC, No. 2:21-cv-728-SPC-MRM, 2022 WL 445428, at *4 (M.D. Fla.
Feb. 14, 2022)); see also Wright v. Howmedica Osteonics Corp., 741 F. App’x
624, 626 (11th Cir. 2018) (per curiam) (noting the same requirements under
Florida law).
Hogarty claims that he asserts both “no warning,” i.e. failure to warn at
all, which does not require the plaintiff to allege the content of a warning, and
“inadequate warning” theories. See Resp. to Joint MTD at 16–17 (relying on
Conner v. Marriott Hotel Servs., Inc., 559 F. Supp. 3d 1305, 1309 (M.D. Fla.
2021) which describes the differences in pleading requirements between the
two theories). Hogarty does not identify any allegations that squarely allege
that no warning was given at all. The closest any come is the allegation that
the Roundup’s risks “could have been reduced or avoided by providing
reasonable instructions or warnings, yet no such instructions or warnings were
given.” 3d Am. Compl. ¶¶ 48, 128 (emphasis added). This is still an allegation
that the warnings were unreasonable or, in other words, inadequate.
Further, Monsanto and Bayer CropScience are correct that Hogarty also
fails to allege proximate cause in the failure to warn context. See Joint MTD
at 13. The complaint is devoid of allegations that would allow for the
reasonable inference that Hogarty would have acted differently or otherwise
avoided his injuries had Monsanto and Bayer CropScience provided adequate
warnings.
Thus, Hogarty’s strict product liability claims against Monsanto and
Bayer CropScience survive, but only as to the design defect and manufacturing
defect theories. Because this is the first dismissal to consider the sufficiency of
the complaint’s allegations, Hogarty is granted leave to amend this count to
address the deficiencies as to a failure to warn theory.
2. Hogarty’s misrepresentation claims against Monsanto
and Bayer CropScience do not survive
Hogarty’s fraudulent and negligent misrepresentation claims do not
differ in any way that requires that I analyze them separately. Indeed, as
Monsanto and Bayer CropScience contend, they share the same fatal flaw—
the claims do not meet Federal Rule of Civil Procedure 9(b)’s heightened
pleading standard. See Joint MTD at 14–16; FED. R. CIV. P. 9(b) (“In alleging
fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake.”).
Under Florida law, there are four elements of fraudulent
misrepresentation:5 “(1) a false statement concerning a material fact; (2) the
representor’s knowledge that the representation is false; (3) an intention that
the representation induce another to act on it; and (4) consequent injury by the
party acting in reliance on the representation.” Butler v. Yusem, 44 So. 3d 102,
105 (Fla. 2010); see also Arlington Pebble Creek, LLC v. Campus Edge Condo.
5 Although styled as a fraudulent misrepresentation claim, Hogarty’s theory
resembles a fraudulent inducement claim. See, e.g., 3d Am. Compl. ¶ 63 (“Monsanto
intentionally failed to disclose this information for the purpose of inducing
consumers, including Plaintiff, to purchase Monsanto’s dangerous products.”). Courts
applying Florida law disagree about whether fraudulent misrepresentation and
inducement are the same claim. See NorthStar Reg’l P.S.C. v. InSync Healthcare
Sols., LLC, No. 8:23-cv-02636-KKM-NHA, 2025 WL 1707205, at *4 n.4 (M.D. Fla.
June 18, 2025) (collecting cases). Courts viewing them as different claims have
concluded that fraudulent inducement requires a showing of justifiable reliance. Id.
(citing Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 209 (Fla. 3d
DCA 2003)). This case does not require resolving the disagreement because Hogarty’s
claim fails on an element common to both claims.
Ass’n, 232 So. 3d 502, 505 (Fla. 1st DCA 2017) (listing the same elements for
negligent misrepresentation, except “(2) that defendant should have known the
representation was false” and the plaintiff acted (4) “in justifiable reliance
upon the misrepresentation” (emphases added)). Florida fraudulent and
negligent misrepresentation claims sound in fraud and so must satisfy Rule
9(b)’s heightened pleading standard. See Wilding v. DNC Servs. Corp., 941 F.3d
1116, 1127–28 (11th Cir. 2019). Among other things, Rule 9(b) requires
Hogarty to set forth the precise content of the statements and how they were
misleading. See Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir.
2001); see In re Galectin Therapeutics, Inc. Sec. Litig., 843 F.3d 1257, 1269
(11th Cir. 2016) (“[Rule 9(b)] plainly requires a complaint to set forth: (1)
precisely what statements or omissions were made in which documents or oral
representations; (2) the time and place of each such statement and the person
responsible for making (or, in the case of omissions, not making) them; (3) the
content of such statements and the manner in which they misled the plaintiff,
and; (4) what the defendant obtained as a consequence of the fraud.”).
Despite Hogarty’s assertion to the contrary, Resp. to Joint MTD at 18–
19, his fraudulent and negligent misrepresentation claims fail the Rule 9(b)
standard. Hogarty makes only conclusory, general allegations about Monsanto
and Bayer CropScience misrepresenting Roundup as “safe.” See 3d Am. Compl.
¶¶ 61–85, 141–65; Resp. to Joint MTD at 18 (arguing that “[t]he essential lie
is that ‘Roundup is safe’ ”). Nor are there any nonconclusory allegations
regarding “where or when [Hogarty] viewed any alleged misrepresentations,”
or that would allow the reasonable inference that Hogarty relied (justifiably or
not) on any alleged misrepresentations. See Volinsky v. Lenovo (United States)
Inc., No. 8:23-cv-00250-KKM-NHA, 2024 WL 1299315, at *8 (M.D. Fla. Mar.
27, 2024); 3d Am. Compl. ¶¶ 61–85, 141–65.
Hogarty’s fraudulent and negligent misrepresentation claims against
Monsanto and Bayer CropScience are dismissed without prejudice.
3. Hogarty’s strict product liability claim against Orgill
survives
Hogarty asserts all three families of strict product liability claims
against Orgill. See 3d Am. Compl. ¶¶ 31–39. Orgill argues that Hogarty failed
to state a claim because he has not sufficiently pleaded that the pump sprayer
is defective. See Orgill MTD at 5–10. I disagree.
Orgill incorrectly perceives what Florida law demands of Hogarty at this
stage. Hogarty alleges several possible defects. These include a lack of an
“automatically actuated pressure relief valve or any other valve either active
or passive, to protect the tank from being over pressurized,” and a design that
left the tank “too weak,” with its wall “too thin,” “irregular in thickness,” and
reliant on material that is “too inflexible and brittle.” 3d Am. Compl. ¶ 13. And
these are not the only allegations of defect. See id. ¶¶ 33(o)–(v). Hogarty pairs
these with allegations that the defects rendered the pump sprayer
unreasonably dangerous under any of the tests that Florida law allows. See id.
¶ 33.
Orgill’s other arguments on this point are ineffective. First, Orgill
asserts that Hogarty must have alleged “what the pressure [inside the spray
pump] was at the time of the incident.” Orgill MTD at 5. Orgill provides no
authority in support. If such an argument is ever effective, it is not at this
stage. Orgill also misreads the complaint by contending that it alleges that
pump sprayers are widely known to be “always dangerous,” id. at 6, but the
complaint alleges that Orgill knew of the dangers but did not publicize the
risks, see 3d Am. Compl. ¶¶ 14–15, 30. Orgill contends that the complaint lacks
an “allegation as to how the sprayer here was being used in a way that caused
its failure.” Orgill MTD at 5. Again, no authority. And, regardless, the
complaint’s allegations indicate that Hogarty used the pump sprayer in a
normal, intended manner, see 3d Am. Compl. ¶¶ 1, 13–15, 18–20, creating an
inference that defects in the pump sprayer caused the failure and resulting
injuries. Hogarty has sufficiently alleged a design defect theory.
Like Monsanto and Bayer CropScience, Orgill contends that Hogarty
failed to describe the inadequate warnings.6 Orgill MTD at 7. There is a key
6 Orgill differs from Monsanto and Bayer CropScience in that it makes no argument
that Hogarty fails to sufficiently allege proximate cause in the failure to warn context.
difference—Hogarty alleges both an inadequate warning theory and a
complete failure to warn theory against Orgill. Compare 3d Am. Compl. ¶ 14
(alleging Orgill failed to provide “appropriate warnings and instructions
concerning safe operation of the pump sprayer”), with id. ¶ 15 (alleging that
Orgill made “no mention let alone warning . . . of the fact that pump sprayers
are known to burst or explode during ordinary use” and “failed to warn
users/consumers and the general public of such defects”), and id. ¶ 30
(“Plaintiff relied upon the absence of any warnings re[garding] the use of pump
sprayers . . . to believe that pump sprayers presented no threat of injury to
users.”).
Orgill is correct that, as with his Roundup claims, Hogarty failed to
include any description of the warnings that he purports to be inadequate. See
3d Am. Compl. ¶¶ 11, 13, 32–33. This is insufficient. See Wright, 741 F. App’x
at 626.
Thus, Hogarty’s failure to warn claim survives to the extent that it relies
on a “no warning” theory, and it is dismissed without prejudice to the extent
that it relies on an “inadequate warning” theory.
Lastly, Orgill claims that there are no allegations to support a
manufacturing defect theory. See Orgill MTD at 7. Not so. Hogarty makes the
See Orgill MTD at 7 (merely contending that Hogarty fails to describe the warnings
or allege that he viewed them).
same sufficient defect allegations for a manufacturing defect theory as he does
for a design defect theory. See 3d Am. Compl. ¶¶ 13, 33(o)–(v) (alleging each as
an issue of design and manufacture). Hogarty has sufficiently alleged a
manufacturing defect theory. See Bailey, 288 F. App’x at 605–07.
C. Motion to Strike
Orgill also moves to strike Hogarty’s request for punitive damages. Orgill
MTD at 8–9. Although Orgill asks that the punitive damages be “stricken,” it
purports to move under only Rule 12(b)(6) in its motion. See id. at 1. I construe
this as a motion to strike because, “[i]f a party has improperly labeled a motion
to strike as a motion to dismiss, a court may treat the improperly labeled
motion to dismiss as a motion to strike.” Hutchings, 2008 WL 4186994, at *2.
Hogarty responds that he has sufficiently pleaded allegations that support his
plea for punitive damages. Resp. to Orgill at 17. He is correct.
Orgill argues that there are no factual allegations showing “wanton,
willful, or outrageous conduct.” Orgill MTD at 8. It also claims that because
the plea for punitive damages refers to “Defendants” as each engaging in
“wrongful conduct . . . as detailed herein [that] was intentional, deliberate
and/or in reckless disregard of the rights of the general public . . . [and] the
rights of Plaintiff,” that Hogarty fails to plead “any facts connecting Orgill to
meet this [punitive damages] standard.” See id. at 8–9; 3d Am. Compl. ¶ 166.
Both contentions are incorrect. On the latter, the punitive damages plea
clearly refers to the specific pleadings throughout the complaint. Orgill cites
no authority that requires Hogarty to replead much of the complaint in the
immediate vicinity of his request for punitive damages. As for the former,
Orgill argues under the wrong standard.7 As a federal court sitting in diversity,
the state punitive damages standard governs. See Browning-Ferris Indus. of
Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278 (1989).
Under Florida law, “[a] defendant may be held liable for punitive
damages only if the trier of fact, based on clear and convincing evidence, finds
that the defendant was personally guilty of intentional misconduct or gross
negligence.” § 768.72(2), Fla. Stat. “ ‘Intentional misconduct’ means that the
defendant had actual knowledge of the wrongfulness of the conduct and the
high probability that injury or damage to the claimant would result and,
despite that knowledge, intentionally pursued that course of conduct, resulting
in injury or damage.” Id. § 768.72(2)(a). “ ‘Gross negligence’ means that the
defendant’s conduct was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of persons
exposed to such conduct.” Id. § 768.72(2)(b).
7 Even if the standard that Orgill puts forth was the correct standard, I would still
conclude that Hogarty alleges “wanton, willful, or outrageous conduct.”
Although all Hogarty’s allegations and theories of liability would not
suffice for showing intentional misconduct or gross negligence by Orgill, some
do. For example, Hogarty alleges that Orgill “intentionally conceal[ed] . . . the
results of trials, tests, and studies of failures of [the pump sprayer] and
consequently the risk of serious harm associated with human use of such
product.” 3d Am. Compl. ¶ 42(b). He also alleges that Orgill failed to “conduct
necessary tests to determine whether . . . [the] pump sprayer was safe for its
intended use.” Id. ¶ 42(c); see also id. ¶ 33(f) (“Orgill knew . . . that exposure to
[the pump sprayer] could result in severe injuries and illness” but continued to
market it); id. ¶ 42(k) (alleging Orgill concealed the dangers known to it that
are associated with or caused by using the pump).
IV. CONCLUSION
There is no personal jurisdiction over Bayer Corporation in this state and
I dismiss Bayer Corporation and Counts VII through X without prejudice.
To the extent that any of the remaining defendants sought to dismiss
them, Hogarty’s negligence claims against Monsanto (Count IV), Bayer
CropScience (Count XII), and Orgill (Count II) proceed untouched. The strict
product liability counts against Monsanto (Count III) and Bayer CropScience
(Count XI) survive insofar as they rely on design defect and manufacturing
defect theories. Hogarty may amend to address the deficiencies with the failure
to warn theory. The fraudulent and negligent misrepresentation counts
against Monsanto (Counts V and VI) and Bayer CropScience (Counts XIII and
XIV) are dismissed without prejudice for failure to adhere to Rule 9(b)’s
heightened pleading standard. Hogarty may amend to address the deficiencies
with each. The strict product liability claim against Orgill (Count I) survives
except as to any failure to warn theory premised on Orgill’s provision of
inadequate warnings. Hogarty may amend to address the deficiencies with
that theory. Lastly, Hogarty’s punitive damages plea remains.
Accordingly, the following is ORDERED:
1. Bayer Corporation’s Motion to Dismiss (Doc. 80) is GRANTED. The
Clerk is directed to TERMINATE Bayer Corporation from this case.
2. Monsanto’s Motion to Dismiss (Doc. 81) is DENIED as moot. Monsanto
and Bayer CropScience’s Joint Motion to Dismiss (Doc. 84) is
GRANTED in part.
3. Orgill’s Motion to Dismiss (Doc. 82) is GRANTED in part. Orgill’s
construed Motion to Strike (Doc. 82) is DENIED.
4. Should Hogarty wish to amend, he may do so only to address the
deficiencies with Counts I, III, V, VI, XI, XIII, and XIV. He may not add
new parties or claims. If he amends, he must do so no later than June
22, 2026. He is reminded of the earlier dismissals for shotgun pleading
and my warning that continued submissions of shotgun pleadings may
result in dismissal of this action.
5. Monsanto, Bayer CropScience, and Orgill must respond to Hogarty’s
operative complaint by the earlier of 14 days after a fourth amended
complaint is docketed or July 10, 2026.
6. No later than July 10, 2026, the parties must either file an amended
case management report or move for a case management conference if
they believe one is necessary.
ORDERED in Ocala, Florida, on June 5, 2026.
Kathryn’Kimball Mizelle
United States District Judge
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