Byone, et al v. Monsanto Company, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 01-30058
Summary Calendar
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JOHNNY BYONE,
INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED;
JOHNNY ODOM,
INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants,
VERSUS
MONSANTO COMPANY; ET AL.,
Defendants,
MONSANTO COMPANY; ASGROW SEED COMPANY; SF SERVICES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
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August 6, 2001
Before JOLLY, SMITH, and BENAVIDES,
Circuit Judges.
PER CURIAM:*
Louisiana farmers Johnny Byone and
Johnny Odom purchased and grew Roundup
Ready® brand soybeans during 1997 and
1998. Experiencing lower yields than
anticipated, they sued the developer of this
strain of soybean, Monsanto Company, and
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
*(...continued)
47.5.4.

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two seed companies, Asgrow Seed Company
and SF Services, who sold them the beans.
The district court granted summary judgment
to the defendants. Finding no error, we affirm,
essentially for the reasons given by the district
court in its comprehensive ruling entered on
December 13, 2000.
I.
Monsanto Company genetically engineered
the Roundup Ready® soybean to resist the
effects of Roundup brand herbicide so that
farmers could spray to control weeds without
harming their crop. Byone and Odom admit
that the soybeans withstood the herbicide as
expected, but they contend that despite
assurances of “maximum yield potential” and
“no reduction in yield potential,” the Roundup
Ready® plants produced fewer soybeans than
did the other brands they planted simultane-
ously. Byone and Odom claim that such ad-
vertising fraudulently misrepresented the per-
formance of these seeds. We have reviewed
the record, and we conclude that the court
correctly entered summary judgment.
II.
Byone’s and Odom’s fraud claim for the
1997 crop is time-barred. A one-year statute
of limitations applies to delictual actions such
as tortious or negligent misrepresentation. See
LA. CIV. CODE ANN. arts. 3447, 3492 (West
2001). Under Louisiana law, when a plaintiff
cannot reasonably know of the cause of action,
the doctrine of contra non valentum tolls this
period until the plaintiff has information
sufficient to prompt further inquiry. See El-
dredge v. Martin Marietta Corp., 207 F.3d
737, 742 (5th Cir. 1992). Assuming arguendo
that the doctrine applies here, the latest time at
which Byone and Odom could have had such
information was when they harvested their
1997 crop; they did not sue until July 1999.
Even if their claim were not time-barred, their
claim is without merit, as we will explain.
III.
Although Byone and Odom’s fraud claim
for the 1998 crop is timely, they cannot
prevail. First, they point us to no actual
promise or guarantee of a high yield; they
present only scientific data and farmers’
testimony suggesting that Roundup Ready®
seeds have equal yield potential to that of
other soybean varieties. Second, even
assuming that these sophisticated soybean
producers justifiably relied on some ephemeral
promise in t he advertisements, only
misstatements concerning past or present facts
are actionable as fraud under Louisiana law.
See America’s Favorite Chicken v. Cajun
Enters., Inc., 130 F.3d 180, 186 (5th Cir.
1997).1 Finally, Asgrow’s seed bags carried a
disclaimer noting that Asgrow provided no
guarantee “of crop yield or freedom from seed
borne diseases.”
AFFIRMED.
1 In America’s Favorite Chicken, an analogous
suit against a franchiser for fraudulent
misrepresentation of sales potential, we construed
this proposition broadly. The franchiser provided
projected sales figures and promised that if the pur-
chasers ran the store properly, sales definitely
would increase. We concluded that even this
promise was not actionable. America’s Favorite
Chicken, 130 F.3d at 186.

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