[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
______________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 6, 2002
No. 02-10518 THOMAS K. KAHN
______________________ CLERK
D. C. Docket No. 99-00136-CV-4-WLS-1
LOWE’S HOME CENTERS, INC.,
Plaintiff-Appellant,
versus
OLIN CORPORATION,
Defendant-Appellee.
_____________________
Appeal from the United States District Court
for the Middle District of Georgia
_____________________
(December 6, 2002)
Before HULL, WILSON and FAY, Circuit Judges.
FAY, Circuit Judge:
Lowe’s Home Centers, Inc. (“Lowe’s”) filed suit against Olin Corporation
(“Olin”) asserting three claims that, in whole or in part, center around Olin’s
alleged failure to properly warn Lowe’s of the dangers involved in the storage and
handling of a pool chlorinating product known as Pace Superchlorinator Shock
Treatment (“Pace”). The active chemical ingredient in Pace is calcium
hypochlorite (“cal-hypo”), a registered pesticide under the Federal Insecticide,
Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136, et. seq. The district
court entered summary judgment in favor of Olin based upon this court’s decision
in Papas v. Upjohn Co., 985 F.2d 516 (11th Cir.), cert. denied, 510 U.S. 913
(1993) (“Papas II”). Lowe’s appeals from the entry of summary judgment on
Olin’s behalf as well as the district court’s denial of Lowe’s’ motion for leave to
amend its first amended complaint. Because we find that Papas II is the law of this
circuit and is binding upon this court and that the district court did not abuse its
discretion in denying Lowe’s’ motion for leave to amend, we affirm.
I.
Lowe’s is a national chain of more than 500 building supply retail stores that
sells, among a number of other products, pool chlorinating products manufactured
by Olin. One such pool chlorinating product is Pace, of which the active ingredient
is cal-hypo, a highly reactive chemical designed to kill bacteria, control algae and
destroy organic contaminants in swimming pools. Pace is a strong oxidizing agent
that, when burned, results in a significantly accelerated and intense fire. Because
of its chemical makeup and resulting dangers, Pace is a registered pesticide with
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the Environmental Protection Agency (“EPA”) as required by FIFRA. In addition
to being registered, Pace packages carry EPA-approved labels warning of the
product’s dangers.
The EPA-approved label on the front of a Pace package states, in pertinent
part, “DANGER! Contamination may cause Fire!” and “See precautionary
statements on back panel.” Further, in addition to general information concerning
use of the product and storage and disposal, the back panel of each package
provides precautionary language further delineating the hazards and handling of
the Pace product. In relevant part, the EPA-approved label provides:
CHEMICAL HAZARDS: DANGER. Strong oxidizing
agent. Mix only into water. Contamination may start a
chemical reaction with generation of heat, liberation of
hazardous gases, and possible fire and explosion. Avoid
any contact with flame or burning material, such as
lighted cigarette. Do not contaminate with moisture,
garbage, dirt, chemicals including other pool chemicals,
pool chlorinating compounds, household products,
cyanuric acid pool stabilizers, soap products, paint
products, solvents, acids, vinegar, beverages, oils, pine
oil, dirty rags, or any other foreign matter.
In addition to the specific warnings contained on the Pace packages
themselves, Olin provided Lowe’s with additional warnings and information in the
form of a publication entitled “Guidelines for the Shipping, Storage and Handling
of Olin Pool and Spa Care Products (“Guidelines”).” The Guidelines are provided
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to each of Olin’s pool product retail merchandisers even though such Guidelines
are not required by FIFRA nor are approved by the EPA.
On April 16, 1996, Lowe’s employees discovered a small fire inside of
Lowe’s’ Albany, Georgia store in a pallet of Pace packages on display for sale to
its customers. The pallet of the Pace product was located in the same area in the
store as where Lowe’s stored other Olin branded cal-hypo based pool products. At
that time, Lowe’s’ Albany, Georgia store had approximately 10,000 pounds of cal-
hypo based Olin pool products on display. Although the employees attempted to
extinguish the fire upon discovering it, they were unable to do so. Therefore, the
employees and all of the store’s occupants evacuated the building and waited for
the local fire department to arrive. However, the nature and intensity of the fire
grew quickly, overwhelming the store’s automatic sprinkler system and resulting in
the destruction of the store and all of its contents prior to the timely arrival of the
fire department.
Lowe’s filed suit against Olin asserting two claims: (1) negligent design of
the Pace product and (2) failure to warn of Pace’s dangers. Thereafter, Olin
amended its complaint to add a third claim, negligent supervision and training by
Olin of Pennington Seed, Inc., Olin’s Pace distributor. Following the completion
of discovery, Olin moved for summary judgment asserting that each of Lowe’s’
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claims were preempted by FIFRA. In response, Lowe’s conceded that claims
concerning deficiencies with the EPA-approved Pace warning labels were
preempted by FIFRA but argued that its claims concerned not the Pace warning
labels, but rather Olin’s common law duty under Georgia law to disclose to its
retailers information known only to Olin concerning the propensity of cal-hypo
products to burn at such intensity as to overwhelm automatic sprinkler systems.
Based upon our decision in Papas II, the district court granted judgment in favor of
Olin finding that Lowe’s claims were preempted by FIFRA. Lowe’s asserts that
the district court erred in granting Olin summary judgment on its failure to warn
claim.1
II.
We review de novo the district court’s rulings on motions for summary
judgment. SCI Liquidating Corp. v. Hartford Fire Ins. Co., 181 F.3d 1210, 1212
(11th Cir. 1999) (citing Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir. 1999)).
We must “view all the evidence and all factual inferences reasonably drawn from
the evidence in the light most favorable to the nonmoving party.” Maniccia v.
Brown, 171 F.3d 1364, 1367 (11th Cir. 1999) (citing Stewart v. Happy Herman’s
1
The record reflects through pleadings and at oral argument that Lowe’s has voluntarily
withdrawn its negligent design and negligent supervision and training claims.
5
Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997) (citation omitted)).
Summary judgment is proper where the pleadings, depositions and affidavits
demonstrate no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Id. (citing Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)).
III.
On two separate occasions this circuit has addressed whether the preemptive
reach of FIFRA extends to common law tort claims that challenge the sufficiency
of EPA-approved warning labels. On both occasions, we reached the same
conclusion holding that FIFRA is sufficiently broad so as to preempt state common
law tort claims that question the sufficiency of EPA-approved warning labels. See
Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir. 1991) (“Papas I”), vacated, Papas
v. Zoecon Corp., 505 U.S. 1215 (1992), on remand, Papas v. Upjohn Co., 985 F.2d
516 (11th Cir. 1993), cert. denied, 510 U.S. 913 (1993) (“Papas II”). Because our
decision here today centers around our previous holdings in Papas I and Papas II,
a discussion of those cases is in order.
The factual background of the Papas decisions is set forth in Papas I. Those
facts reveal that Minas Papas, while working for a local humane society, utilized
certain pesticides regulated by the EPA pursuant to FIFRA for purposes of ridding
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dogs of fleas, ticks and other pests. Papas I, 926 F.2d at 1020. Apparently, the use
of the pesticides had a detrimental effect on Minas Papas’ health. As such, Minas
Papas and his wife Ollie filed a diversity action in federal district court against
Upjohn Company and Zoecon Corporation sounding in negligence, strict liability
and breach of implied warranty of merchantability. Id. Each of the counts,
however, in whole or in part, centered around allegations of insufficient warning
labels. Id. Accordingly, the district court granted Zoecon’s motion for partial
summary judgment concluding that FIFRA preempted the Papas’ claims of
inadequate labeling. Id. at 1021.
On interlocutory appeal, this court held that FIFRA impliedly preempted
state common law tort claims for inadequate labeling. Id. In so holding, the Papas
I court analyzed FIFRA and its statutory scheme noting that Congress specifically
delineated the extent to which states could regulate pesticides in § 136v:
§ 136v. Authority of States
(a) In General. A State may regulate the sale or use of
any federally registered pesticide or device in the State,
but only if and to the extent the regulation does not
permit any sale or use prohibited by this subchapter.
(b) Uniformity. Such State shall not impose or continue
in effect any requirements for labeling or packaging in
addition to or different from those required under this
subchapter.
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Id. (citing 7 U.S.C.A. § 136v (West 1980 & Supp. 1990) (subsection headings
added by 1988 amendment)).
Based on § 136v, the Papas I court concluded that jury awards of damages
pursuant to common law tort actions would conflict with FIFRA. Id. at 1025. The
court then stated:
For EPA-registered pesticides, the warning and use
statements present on the labels indicate that the EPA has
determined that those statements are adequate to protect
man and the environment: that the pesticide as labeled
does not pose any unreasonable risk to man or the
environment, taking into account the economic, social,
and environmental costs and benefits of the use of any
pesticide. Thus, a jury determination, via a state common
tort judgment, that a pesticide’s labeling is inadequate
results in a direct conflict with the EPA’s determination
that the labeling is adequate to protect against health
risks. Such a jury determination is also in direct conflict
with the Congressional intent that the EPA Administrator
determine the reasonableness of the risks to man and the
environment posed by pesticides, at least with respect to
the labeling of pesticides.
Id. (internal quotes and citations omitted) (emphasis in original). Furthermore, the
court noted that common law tort suits for inadequate labeling would hinder
Congress’ objectives, including uniform labeling across the nation. Id.
On appeal to the U.S. Supreme Court, the Supreme Court vacated and
remanded the case back to us to decide whether FIFRA expressly preempted the
Papas’ claims in light of the its decision in Cippollone v. Liggett Group, Inc., 505
8
U.S. 504 (1992), wherein the Court held that there is no need to rely upon the
implied preemption doctrine where Congress has enacted an express statutory
preemption provision that provides a “reliable indicium of congressional intent
with respect to state authority.” Id. at 517 (citing Malone v. White Motor Corp.,
435 U.S. 497, 505 (1978)).
On remand from the Supreme Court, the Papas II court considered whether
FIFRA expressly preempted state common law tort claims concerning the
adequacy of labeling or packaging. The court held that FIFRA did expressly
preempt state common law tort claims concerning the adequacy of labeling or
packaging. In reaching that conclusion, the court reexamined § 136v and
concluded that the term “requirements” in § 136v(b) “sweeps broadly and suggests
no distinction between positive enactments and the common law.” Papas II, 985
F.2d at 518 (citing Cipollone, 505 U.S. at 521). Accordingly, the court held that
common law damages awards were simply one form of state regulation and were
“‘requirements’ within the meaning of section 136v.” Papas II, 985 F.2d at 518.
Based on that interpretation, the court concluded that “[t]o the extent that state law
actions for damages depend upon a showing that a pesticide manufacturer’s
‘labeling or packaging’ failed to meet a standard ‘in addition to or different from’
FIFRA requirements,” FIFRA does expressly preempt such claims. Id.
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The Papases further contended that FIFRA did not preempt claims that
pertain to point-of-sale signs, consumer notices, or other information materials
unrelated to “labeling and packaging.” Id. at 519. Based on that argument, the
Papas II court also had occasion to consider the extent to which FIFRA preempts
so-called “off-label” claims. In concluding that off-label claims were also
preempted by FIFRA, the court held:
[A]ny claims that point-of-sale signs, consumer notices,
or other information materials failed adequately to warn
the plaintiff necessarily challenge the adequacy of the
warnings provided on the product’s labeling or
packaging. If a pesticide manufacturer places EPA-
approved warnings on the label and packaging of its
product, its duty to warn is satisfied, and the adequate
warning issue ends.
Id. at 519 (emphasis added).
IV.
In this case, Lowe’s contends that its failure to warn claim is not preempted
by FIFRA because its claim is completely unrelated to labeling or packaging.
Rather, Lowe’s asserts that its failure to warn claim is premised upon Olin’s
withholding of specific information known only to Olin concerning the propensity
of cal-hypo products to burn at such intensity so as to overwhelm code-compliant
and reasonably designed automatic sprinkler systems. More specifically, Lowe’s
contends that its claim is outside of the preemptive reach of FIFRA because Olin
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failed to disclose information concerning the nature and intensity of cal-hypo fires
in the Guidelines provided to Lowe’s by Olin as well as during a meeting that
occurred between Lowe’s and Olin on March 21, 1994, the subject of which was
Lowe’s’ handling and storage of the Pace product. Because we reject Lowe’s’
arguments and find that Lowe’s’ failure to warn claim is preempted by FIFRA, we
will take each of Lowe’s’ arguments in turn.
A. Guidelines
It is not in dispute that Lowe’s was provided with Guidelines concerning the
handling, storage and hazards of Olin’s pool chemical products in addition to the
EPA-approved warning labels on the Pace product prior to the April 16, 1996 fire
at Lowe’s Albany, Georgia store. Although not required by FIFRA nor approved
by the EPA, Lowe’s provides the Guidelines to its pool product retail
merchandisers. The Guidelines provide information on Olin pool products other
than Pace and chemicals other than cal-hypo, however, in all material respects, the
information provided in the Guidelines is the same as that provided in the EPA-
approved warning labels on the Pace packages. However, where differences
between the Guidelines and the EPA-approved warning labels do exist, such
differences relate to the increased amount and detail of information provided in the
Guidelines. Furthermore, the Guidelines concern additional matters primarily of
11
import to retail merchandisers such as the proper design of storage facilities for the
Pace product, transportation and shipping guidelines and the minimum
requirements for a retailer’s automatic sprinkler system. It is on this last point that
Lowe’s asserts Olin breached its common law duty of disclosure under Georgia
law.
As it turns out, as early as 1969, Olin conducted “burn” tests of the chemical
cal-hypo. Additionally, Olin completed substantially similar burn tests in 1976 and
1979. As discussed above, cal-hypo is a strong oxidizing agent which, when
burned, results in an extremely intense and hot fire. As a result of the burn tests,
Olin learned that when cal-hypo is packaged in plastic, a fire could not be
controlled even by an automatic sprinkler system that dispensed one gallon of
water per minute per square foot. On the other hand, Olin learned that cal-hypo
packaged in a fiber container could be controlled with as little as .20 gallons per
minute per square foot, the minimum recommended for any retailer per the
Guidelines Olin provided.
Lowe’s asserts that Olin never published the results of the 1969, 1976 or
1979 tests nor disclosed such results in its Guidelines. Despite warnings in the
Guidelines that contaminated cal-hypo may react violently and result in an intense
fire or explosion, that a cal-hypo fire probably would not be contained by a
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sprinkler system alone and that the fire department must be called, Lowe’s argues
that Olin breached its duty of disclosure by not disclosing the results of the burn
tests. Further, Lowe’s argues that Olin was negligent when it recommended a
minimum automatic sprinkler system of .20 gallons of water per minute per square
foot knowing that such recommendation could not contain a fire involving cal-
hypo packaged in plastic, the type of packaging sold to Lowe’s. For the following
reasons, Lowe’s’ argument fails.
The crux of this issue centers around whether the Guidelines fall within the
purview of FIFRA. If the Guidelines do fall within the purview of FIFRA, then
Lowe’s’ claim is preempted. As stated above, § 136v(b) of FIFRA states that a
State “shall not impose or continue in effect any requirements for labeling or
packaging in addition to or different from those required under this subchapter.” 7
U.S.C.A. § 136v (West Supp. 2002). Because we held in Papas II that the term
“requirements” was sufficiently broad so as to cover jury damages awards and that
challenges to warnings on materials other than the label of a product necessarily
implies that the warning itself was inadequate, the definition of “label” and
“labeling” are critical for the resolution of this issue. If the Guidelines are
encompassed within those definitions, Papas II controls and Lowe’s’ claim is
preempted.
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Label and labeling are defined by FIFRA as follows:
(p) Label and labeling.
(1) Label. The term “label” means the written, printed,
or graphic matter on, or attached to, the pesticide or
device or any of its containers or wrappers.
(2) Labeling. The term “labeling” means all labels and
all other written, printed, or graphic matter--
(A) accompanying the pesticide or device at any time; or
(B) to which reference is made on the label or in
literature accompanying the pesticide or device, except to
current official publications of the Environmental
Protection Agency, the United States Departments of
Agriculture and Interior, the Department of Health and
Human Services, State experiment stations, State
agricultural colleges, and other similar Federal or State
institutions or agencies authorized by law to conduct
research in the field of pesticides.
7. U.S.C.A. § 136(p) (West Supp. 2002) (emphasis added). Since the definition of
“labeling” seemingly includes the Guidelines as “other written, printed, or graphic
matter,” unless the Guidelines did not accompany the Pace product at any time,
Lowe’s’ claim is preempted. Accordingly, the second critical inquiry for
resolution of this issue concerns the definition of “accompanying.”
Lowe’s summarily argues that the Guidelines never accompanied the Pace
product. However, we find Lowe’s advocates an unnecessarily narrow view of the
word “accompany” and limits the ability of the EPA to effectively regulate the
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labeling and packaging of pesticides contrary to Congressional intent and the
purpose of FIFRA as discussed in Papas I and II. On this point, we substantially
agree with the Second Circuit in New York State Pesticide Coalition, Inc., v.
Jorling, 874 F.2d 115 (2d Cir. 1989) wherein that court concluded that
“‘[l]abeling’ is better understood by its relationship, rather than its proximity, to
the product.” Id. at 119. In this case, the Guidelines clearly relate to the storage,
handling and hazards of the Pace product, each of which is covered by the EPA-
approved label. Further, the Guidelines are not generally made available to the
public. Rather, the Guidelines are provided by Olin to its pool product retail
merchandisers. Therefore, the Guidelines do “accompany” the Pace product and
do constitute “labeling” under FIFRA. As such, any claims concerning the
sufficiency of the warnings in the Guidelines are preempted.
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B. Meeting of March 24, 1994.
As an alternative, Lowe’s asserts that its meeting with Olin, during which
the handling and storage of the Pace product was discussed, provides an
independent basis to support its failure to warn claim. Lowe’s argues that Olin was
negligent in not disclosing the results of the burn tests and informing Lowe’s of the
true dangers associated with cal-hypo during the meeting. Further, Lowe’s argues
that Olin made specific intentional misrepresentations concerning the manner in
which Lowe’s should handle and store the Pace product during the meeting that
were relied upon by Lowe’s to its detriment. Specifically, Lowe’s asserts that Olin
representatives told Lowe’s’ representatives that its handling and storage measures
“were good enough” and specifically discouraged Lowe’s from moving the Pace
product outdoors. While we share in Lowe’s’ concerns over the statements made
by Olin during the March 21, 1994 meeting, as more fully discussed below,
Lowe’s did not timely plead alternate theories of misrepresentation and fraud. As
for the assertion that Olin was negligent for failing to disclose additional warning
information, we reject that contention and rely on the strong language in Papas II
which admonished that:
[A]ny claims that point-of-sale signs, consumer notices,
or other information materials failed adequately to warn
the plaintiff necessarily challenge the adequacy of the
warnings provided on the product’s labeling or
16
packaging. If a pesticide manufacturer places EPA-
approved warnings on the label and packaging of its
product, its duty to warn is satisfied, and the adequate
warning issue ends.
Papas II, 985 F.2d at 519 (emphasis added).
V.
Lowe’s argues that the district court erred when it denied a motion for leave
to amend Lowe’s’ first amended complaint. Apparently, after recognizing the
likelihood of an adverse summary judgment ruling, Lowe’s attempted to amend its
complaint to remove its negligent design and negligent supervision and training
claims and to add two additional claims: (1) negligent misrepresentation and (2)
fraud. The record in this case reveals that despite numerous scheduling orders and
joint stipulations regarding deadlines, Lowe’s did not file its motion for leave to
amend its first amended complaint until well after all such deadlines had expired
and not until over two months following the filing of Olin’s motion for summary
judgment. In fact, Lowe’s did not file its motion for leave to amend until over a
month had elapsed from the filing of its response to Olin’s motion for summary
judgment.
We have held that a district court has great discretion when deciding
whether to grant a motion for leave to amend a complaint following the filing of
responsive pleadings. See Henson v. Columbus Bank & Trust Co., 770 F.2d 1566,
17
1574 (11th Cir. 1985). Further, we have held that we will reverse a district court
for exercising its discretion in this regard only if the abuse of discretion is clear.
Id. It is not an abuse of discretion for a district court to deny a motion for leave to
amend a complaint when such motion is designed to avoid an impending adverse
summary judgment. See Local 472, etc. v. Georgia Power Co., 684 F.2d 721, 724
(11th Cir. 1982). Furthermore, it is not an abuse of discretion for a district court to
deny a motion for leave to amend following the close of discovery, past the
deadline for amendments and past the deadline for filing dispositive motions. See
Hinson v. Clinch County, Georgia Bd. of Educ., 231 F.3d 821 (11th Cir. 2000).
Therefore, although a strong argument has been made for a potential claim
against Olin for misrepresentation and fraud which might fall outside of the
preemptive reach of FIFRA, we do not reach those issues. We agree with the
district court’s conclusion that, in order to ensure the orderly administration of
justice, it has the authority and responsibility to set and enforce reasonable
deadlines. Based on the timing and manner in which Lowe’s sought to amend its
complaint, we simply cannot conclude that the district court clearly abused its
discretion in denying Lowe’s’ motion. Accordingly, we affirm the district court’s
denial of Lowe’s’ motion for leave to amend its first amended complaint.
VI.
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The judgment of the district court is affirmed.
AFFIRMED.
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