Dow Agrosciences LLC v. Bates

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 11, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk

No. 02-10908
_______________________

DOW AGROSCIENCES LLC,
Plaintiff-Appellee

versus

DENNIS BATES; JIMMY BURSON;
BENNY JUDAH, doing business
as Clearwater Farms; TOMMY COLEMAN;
RICHARD COX; ET AL.,
Defendants-Appellants

Appeal from the United States District Court
For the Northern District of Texas

Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and FELDMAN,*
District Judge.

FELDMAN, District Judge:

Dow Agrosciences LLC sought a declaratory judgment against

29 Texas peanut farmers whom were threatening to sue Dow for

damages caused by a Dow-manufactured herbicide. Dow sought,

among other things, a judicial declaration that the Federal

Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §

136 (West 2002), preempts the farmers’ state law claims. The

*
District Judge of the Eastern District of Louisiana, sitting
by designation.

1
district court denied the farmers’ motion to dismiss for lack of

subject matter jurisdiction and for failure to state a claim upon

which relief can be granted, and granted Dow's motion for summary

judgment, holding that FIFRA preempts the farmers’ state law

claims. We affirm.

I.

Strongarm is a herbicide produced and marketed by Dow to

control the growth of weeds in peanuts. Strongarm is registered

with the United States Environmental Protection Agency as

required by FIFRA.

In the spring of 2000, many peanut farmers from west and

northwest Texas bought Strongarm from local retailers. Many of

these farmers contend that Strongarm stunted the growth of peanut

plants, caused yellowing, inhibited peanuts from lapping or

properly developing foliage, delayed maturity, reduced total

peanut production, and increased the expense of harvesting future

peanut crops.

The farmers sent Dow demand letters, claiming that Dow

retailers had misrepresented Strongarm.1 The letters threatened

to sue Dow for false advertising, breach of warranty, and

fraudulent trade practices under the Texas Deceptive Trade

1
The farmers contend that the retailers failed to disclose
that Strongarm damages peanut crops planted in soil with a pH level
above 7.0.

2
Practices Act (DTPA). See Tex. Bus. & Com. Code Ann. § 17.505(a)

(Vernon 2002).

Dow struck first, and sued for declaratory judgment against

29 of the farmers. Dow sought a declaration that: (1) FIFRA

preempts the farmers’ state law claims; (2) the "Limitation of

Remedies" paragraph on the Strongarm label limited the farmers’

remedies to the purchase price of the product; and (3) the

"Warranty Disclaimer" paragraph on the label barred any other

claims based on a warranty of representation. The farmers

counterclaimed against Dow for negligence, breach of implied and

express warranties, fraud, fraud in the inducement, defective

design, estoppel, and waiver.

II.

A. Subject Matter Jurisdiction

The farmers first contend that federal diversity

jurisdiction did not exist over Dow’s lawsuit because three of

the farmers’ claims failed to meet the $75,000

amount-in-controversy requirement. 28 U.S.C. § 1332(a) (West

2002). The issue of subject matter jurisdiction is subject to

plenary review by this Court. See Julian v. City of Houston, 314

F.3d 721, 725 (5th Cir. 2002). As the party invoking diversity

jurisdiction, Dow bears the burden of establishing the amount in

controversy. See Hartford Ins. Group v. Lou-Con Inc., 293 F.3d

3
908, 910 (5th Cir. 2002).

When the claim is one for declaratory relief, the amount in

controversy is determined by "the value of the right to be

protected or the extent of the injury to be prevented." St. Paul

Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1252-53 (5th

Cir. 1998). The amount claimed by the plaintiff controls “if the

claim is apparently made in good faith." Id. at 1253 (quoting

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288

(1938)).

Dow's complaint for declaratory relief states that the value

of each of the individual claims exceeds $75,000. But that bare

allegation, by itself, does not invest a federal court with

jurisdiction. See Asociacion Nacional de Pescadores v. Dow

Quimica, 988 F.2d 559, 566 (5th Cir. 1993). We must therefore

ascertain, based on "summary judgment type evidence," whether the

amount in controversy requirement has been met. St. Paul

Reinsurance, 134 F.3d at 1253.

The farmers point to the claims of Burk Denman, Richard Cox,

and Frenchie Lee Wheeler. Their demand letters claim the

following damages: Denman, $37,992.50; Cox, $33,227.50; and

Wheeler, $18,242.50. All three, moreover, sought an additional

$10,000 in attorney’s fees. See Hartford Ins., 293 F.3d at 912

(including "attorneys’ fees, penalties, statutory damages and

punitive damages" in the amount-in-controversy calculation).

The farmers' original damage requests, on their face, do not

4
satisfy the $75,000 requirement; the farmers’ actual claims,

however, are substantially greater because the DTPA permits a

plaintiff to recover the costs of litigation, pre and

post-judgment interest, and treble damages.2 See Tex. Bus. &

Com. Code Ann. § 17.50(b)(1) (Vernon 2002) (providing for an

"award not more than three times the amount of damages for mental

anguish and economic damages").

The three farmers’ original demand letters did not include

claims for punitive damages. Not only were such damages

available to them under the DTPA, but they later sought such

damages in their counterclaims. We agree with the district court

that “additional demands for attorneys’ fees and punitive damages

exalts the total amount in controversy over $75,000.”3 Thus,

federal diversity jurisdiction existed over Dow’s lawsuit.

B. Abstention

2
The DTPA, however, does not permit the value of attorneys'
fees, costs, and prejudgment interest to be included in the treble
damages calculation. See Tex. Bus. & Com. Code Ann. § 17.50(e)
(Vernon 2002).
3
The mere availability of treble damages establishes that
Denman’s and Cox's claims satisfy the $75,000 requirement. After
trebling Wheeler's request of $18,242.50, and adding his claim for
attorneys' fees, Wheeler's potential recovery is only $64,727.50.
After an independent review of the record, this panel agrees with
the district court that Wheeler's stated claim of $18,242.50 did
not include his claim for future damages. After future damages are
added to the amount of his original claim, Wheeler's total claim
meets the $75,000 requirement for federal diversity jurisdiction.

5
 Appellants next urge that the district court should have

abstained from taking jurisdiction over Dow's lawsuit. District

courts have a broad, but not unfettered, measure of discretion in

deciding whether to entertain an action for a declaratory

judgment. See Travelers Ins. v. Louisiana Farm Bureau

Federation, Inc., 996 F.2d 774, 778 (5th Cir. 1993); Torch, Inc.

v. LeBlanc, 947 F.2d 193, 194 (5th Cir. 1991). Thus, a grant of

declaratory relief is reviewed for abuse of discretion. See

Magnolia Marine Transport v. Laplace Towing Corp., 964 F.2d 1571,

1581 (5th Cir. 1992).

While acknowledging the district court's broad discretion to

exercise jurisdiction over declaratory judgment suits, this

Circuit requires courts to consider various factors, on the

record, before abstaining from a declaratory judgment action:

1) whether there is a pending state action in which all
the matters in controversy may be fully litigated, 2)
whether the plaintiff filed suit in anticipation of a
lawsuit filed by the defendant, 3) whether the
plaintiff engaged in forum shopping in bringing the
suit, 4) whether possible inequities in allowing the
declaratory plaintiff to gain precedence in time or to
change forums exist, 5) whether the federal court is a
convenient forum for the parties and witnesses, . . .
6) whether retaining the lawsuit in federal court would
serve the purposes of judicial economy, . . . [and] 7)
whether the federal court is being called on to
construe a state judicial decree involving the same
parties and entered by the court before whom parallel
state suit between the same parties is pending.

St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 590-91 (5th Cir. 1994).

The district court correctly considered the Trejo factors on

the record before opting to entertain Dow’s declaratory action.

6
Appellants, however, assert that the Trejo analysis favors

abstention because Dow's lawsuit fails to implicate the core

purposes of the Declaratory Judgment Act. They mistakenly rely

primarily on our decision in Magnolia Marine. 964 F.2d 1571.

In Magnolia Marine, which preceded Trejo, our Court reversed

the district court’s decision to accept a declaratory judgment

action. Id. at 1581. We mandated abstention because the

declaratory suit was filed immediately after the defendant

conveyed her intent to sue the plaintiffs in state court, and, we

said, the plaintiffs initiated the lawsuit "solely to obtain

their preferred forum in which to anticipate a defense that they

could adequately raise" in state court. Id. at 1581-82.

Dow’s first strike seems somewhat similar to the conduct in

Magnolia Marine. Dow, too, filed for declaratory relief in

anticipation of being sued in state court. Dow engaged in at

least some degree of forum shopping.4

Against the measure of Magnolia Marine, the first three

Trejo factors appear to favor abstention.5 We nonetheless agree

4
Although Dow chose to lay venue in Lubbock, a place
convenient for the farmers, the choice of a federal court was no
doubt a strategic one. See American Cyanamid Co. v. Geye, 79
S.W.3d 21, 23 (Tex. 2002).
5
We assume, arguendo, that the first Trejo factor supports
abstention despite the fact that the federal suit was filed first.
Pursuant to the statutory notice requirements of the DTPA, the
farmers were precluded from bringing a state court action at any
time within sixty days from the date the demand letters were
mailed, and Dow brought its declaratory judgment action after the
farmers had taken the requisite first steps toward bringing a DTPA

7
with the district court that the last three factors clearly

instruct against abstention: the resolution of this dispute in a

single federal forum furthers the interests of judicial economy;6

the federal forum does not appear to be inconvenient to the

farmers; and the federal court was not asked to construe a state

judicial decree involving the same parties as those involved in a

parallel, pending state suit.7 See Trejo, 39 F.3d at 590-91.

Thus, “[i]n light of the breadth of the district court's

discretion," Torch, 947 F.2d at 195, and because the weight of

the Trejo factors appears to be balanced and to have been

properly considered by the district court on the record, we find

that the court did not abuse its discretion by entertaining Dow's

suit for declaratory judgment.

C. FIFRA Preemption

action.
6
In Cunningham Brothers, Inc. v. Bail, 407 F.2d 1165 (7th
Cir. 1969), the Seventh Circuit disregarded the fact that federal
court abstention would force the defendant to defend lawsuits in
various jurisdictions against a variety of plaintiffs. Id. at
1168-69. The Cunningham panel, however, emphasized repeatedly that
the underlying action was one of personal injury. Because the
scope of Cunningham appears limited to personal injury actions, and
is not a ruling of this Circuit, we find it to be of little
persuasion. We find that resolving the farmers' claims in a single
federal forum clearly furthers the interests of judicial economy.

7
It is unclear from the record whether the fourth factor,
concerned with inequities gained by a plaintiff’s precedence in
time, supports abstention.

8
 Appellants also contend that the district court erred when

it decided, by way of summary judgment, that FIFRA preempted

their state law claims. Our review of a district court's grant

of summary judgment is de novo. See Young v. Equifax Credit

Information Services, Inc., 294 F.3d 631, 635 (5th Cir. 2002).

Preemption analysis proceeds from "the assumption that the

historic police powers of the States were not to be superseded by

the Federal Act unless that was the clear and manifest purpose of

Congress." Wisconsin Public Intervenor v. Mortier, 501 U.S. 597,

605 (1991). Preemption may nonetheless occur in one of three

ways: it may be expressed by the federal statute, it may be

implied from the terms or structure of a federal statute, or it

may arise in a situation where a conflict between state and

federal regulations makes compliance with both a physical

impossibility. See id. The district court found that FIFRA

expressly preempted the farmers’ state law claims. We agree.

FIFRA is a comprehensive regulatory scheme aimed at

controlling the use, sale, and labeling of pesticides. See id.

at 601. FIFRA requires, among other things, that manufacturers

submit proposed product labels for EPA approval. See 7 U.S.C. §

136a(c)(1)(C) (West 2002).

Section 136v of FIFRA announces:

(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.

9
 (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.

The Court has addressed the scope of § 136v(b) many times.

See Hart v. Bayer Corp., 199 F.3d 239 (5th Cir. 2000); Andrus v.

Agrevo USA Co., 178 F.3d 395 (5th Cir. 1999); MacDonald v.

Monsanto, 27 F.3d 1021 (5th Cir. 1994). Our decisions reveal

three clear principles. First, FIFRA does not completely preempt

all state or local regulation of pesticides. See Hart, 199 F.3d

at 244 (rejecting an attempt to premise federal question

jurisdiction on a claim of complete preemption). Second, FIFRA

does not preempt common law that is unconcerned with herbicide

labeling, nor does it preempt those state laws concerned with

herbicide labeling that do not impose any requirement in addition

to or different from the FIFRA requirements.8 See Andrus, 178

F.3d at 398; see also Hart, 199 F.3d at 245 ("FIFRA preemption

does not extend to non-labeling state common-law causes of

action."). Finally, FIFRA preempts state laws that either

directly or indirectly impose different labeling requirements.9

8
It is well-established that the term "any requirements"
encompasses both positive state enactments as well as common-law
causes of action. See Andrus v. Agrevo USA Co., 178 F.3d 395, 398
(5th Cir. 1999).
9
For example, different requirements may be imposed when a
court authorizes a damage award against a manufacturer that has the
"undeniable practical effect" of inducing a manufacturer to alter
the product or label to avoid liability. See MacDonald v.
Monsanto, 27 F.3d 1021, 1025 (5th Cir. 1994). It is this mandate

10
See MacDonald, 27 F.3d at 1025.

The district court found that each of the farmers’ state

claims were preempted under § 136v(b) because they constituted

“requirements for labeling and packaging in addition to those

required under” FIFRA.10 Appellants advance two arguments

against preemption. First, they contend that state labeling

requirements related to product effectiveness are not within the

scope of FIFRA’s express preemption clause. Second, they assert

that their claims are not sufficiently related to the content of

the Strongarm label. We reject each argument.

1) State Labeling Requirements Related to Product
Effectiveness are Within Scope of FIFRA’s Express
Preemption Clause

Appellants urge that their product effectiveness claims,

even those which impose a labeling requirement, are not within

the scope of FIFRA’s express preemption clause. Their argument

suggests that FIFRA preemption of performance-related claims

requires the existence of conflicting EPA enactments.

In Cipollone v. Liggett Group, Inc., the Supreme Court held

that is fatal to appellants’ argument.
10
Thus, we first review whether the farmers' claims are
expressly preempted by § 136v(b); if FIFRA does not expressly
preempt the farmers’ claims, it becomes necessary to analyze
whether such claims conflict with federal law.

11
that, as long as a federal statute11 contains an express

preemption clause, it is wholly unnecessary and inappropriate to

import notions of implied preemption through conflict into the

express preemption analysis.12 505 U.S. 504, 517, 531-32, 544

(1992)(plurality opinion). Nowhere in FIFRA’s text is §

136v(b)’s express preemptive command, or § 136v(a)’s savings

clause, linked to the interplay of EPA regulations. 7 U.S.C. §

136 (West 2002); see also Arkansas-Platte & Gulf Partnership v.

Van Waters & Rogers, 981 F.2d 1177 (10th Cir. 1993)(“We believe

Congress circumscribed the area of labeling and packaging and

11
Cipollone reviewed the express preemption clause in the
Public Health Cigarette Smoking Act of 1969. The Smoking Act of
1969 and FIFRA are strikingly similar. The Tenth Circuit has
written, “Although the words employed in § 136v(b) are different
from those in § 5(b) of the Cigarette Smoking Act, their effect is
the same . . . [and w]e see no difference between the operative
effect of the two acts.” Arkansas-Platte & Gulf v. Van Waters &
Rogers, 981 F.2d 1177, 1179 (10th Cir. 1993). Moreover, the
Seventh Circuit also “discern[ed] no significant distinction at
all” between the two clauses. Shaw v. Dow Brands, Inc., 994 F.2d
364, 371 (7th Cir. 1993)(“Not even the most dedicated hair splitter
could distinguish these statements.”).
12
“Where, as here, Congress has included in legislation a
specific provision addressing . . . pre-emption, the Court’s task
is one of statutory interpretation--only to identify the domain
expressly pre-empted by the provision. An interpreting court must
begin with the language employed by Congress and the assumption
that the ordinary meaning of that language accurately expresses the
legislative purpose. We resort to principles of implied
preemption–-that is, inquiring whether Congress has occupied a
particular field with the intent to supplant state law or whether
state law actually conflicts with federal law--only when Congress
has been silent with respect to pre-emption.” Cipollone v. Liggett
Group, Inc., 505 U.S. 504, 532 (Blackmun, J., concurring in part
and dissenting in part)(internal quotations omitted).

12
preserved it only for federal law . . . [w]ith the same stroke,

Congress banned any form of state regulation, and the

interdiction law is clear and irrefutable.”)(emphasis added).

Although FIFRA’s text does not define the scope of FIFRA’s

preemption clause to be a function of existing EPA regulations,

appellants nonetheless insist that an implied conflict preemption

analysis must be imported into § 136v(b). To support their

claim, they rely primarily on the Texas Supreme Court’s decision

in American Cyanamid Co. v. Geye, which held that the EPA’s

decision to not regulate product labeling “with respect to how

well a product works” meant that “state common-law claims about

target area crop damage are not preempted.” 79 S.W.3d 21, 23

(Tex. 2002). The Texas high court reasoned, “EPA regulations

define the domain expressly preempted” by FIFRA because Congress

gave the EPA the “role of evaluating and determining the content

of pesticide labels.” Id. at 24 (citing 7 U.S.C 136w(a)(1) (West

2002))(internal quotation omitted).

We find Geye unhelpful because it did not address the

principal issue: whether the scope of FIFRA’s express preemption

clause includes product effectiveness claims which relate to

product labeling. Geye holds only that the specific Texas state-

law claims for crop damage did not present a problem of conflict

preemption under the applicable EPA regulations. In other words,

Geye proceeds from the assumption that the claims at issue did

not relate to product labeling and that FIFRA’s express

13
preemption clause did not apply.13

The scope of FIFRA’s express preemption clause is defined by

the simple text of § 136v. That the EPA has not elected to

impose labeling regulations concerning product effectiveness does

not alter the plain meaning of § 136v(b) nor avoid preemption of

a claim that has the effect of imposing labeling requirements.

For a state to create a labeling requirement by authorizing a

claim linked to the specifications of a label, even where the EPA

has elected not to impose such labeling requirements, would

clearly be to impose a requirement “in addition to or different

from those” required under FIFRA. See 7 U.S.C. § 136v(b). Thus,

the farmers’ claims, including those which challenge Strongarm’s

effectiveness, are within the scope of FIFRA’s express preemption

clause if they are related to the content of the Strongarm label.

2) The Farmers’ Claims are Sufficiently Related to the
Content of Strongarm Label

13
That Geye is properly understood as an ordinary conflict-
preemption case is evident from two portions of the opinion.
First, in the opening paragraphs of its opinion, the Texas court
references only the “exception to preemption” clause of FIFRA.
American Cyanide Co. v. Geye, 79 S.w.3d 21, 22 (Tex. 2002). By the
“exception to preemption” clause, the court was clearly referring
to § 136v(a), not to the express preemption clause of § 136v(b).
Second, it is also apparent from Part V of its opinion, in which
the court appeared to conclude that the underlying claim alleged to
be preempted was not a claim “relating directly or indirectly to
labeling,” see 79 S.W.3d at 29 (distinguishing Quest Chemical
Corp. v. Elam, 898 S.W.2d 819 (Tex. 1995)), that the court’s
opinion did not purport to interpret section 136v(b).

14
 The farmers argue that their claims are not related to the

Strongarm label. This argument betrays the facts and it betrays

common sense. We have observed that FIFRA’s express preemption

clause is self-executing. Thus, the farmers’ claims are

expressly preempted under § 136v(b) if a judgment against Dow

would induce it to alter its product label. See Andrus, 178 F.3d

395, 399 (5th Cir. 1999) (finding that state law claims that

herbicide had "failed to perform as specified pursuant to the

label" were preempted by FIFRA because the plaintiff’s success on

such claims would necessarily have had the effect of "imposing

additional labeling standards").

The facts aside for one moment, a claim’s relatedness to a

product label may be determined simply by reference to the

party's pleadings. See id., at 399. Unlike Andrus, where the

plaintiff's complaint specifically referenced "specifications set

forth in the label," the farmers’ counterclaim simply asserts in

general that the label did not include a valid disclaimer or

limitation of remedies. We, therefore, look at each of the

farmers' state claims14 to determine whether a judgment against

Dow would cause it to need to alter the Strongarm label. See

MacDonald, 27 F.3d at 1024 ("[C]ourts must compare the particular

14
Although the farmers asserted breach of contract in their
counterclaim, they failed to address this issue in their brief.
Thus, any objection related to the district court’s finding of
preemption regarding breach of contract is waived. See Oden v.
Oktibbeha County, Miss., 246 F.3d 458, 470 n.12 (5th Cir. 2001).

15
language of a statute's preemption provision with each common law

claim asserted to determine whether the common law claim is in

fact preempted.").

a) Breach of Warranty, Fraud and DTPA

The farmers base their breach of warranty, fraud, and DTPA

claims on misleading comments made by Dow retailers. Claims for

breach of warranty based upon an “off label” representation are

preempted by FIFRA only if the representation deviates from the

contents of the product label. See Andrus, 178 F.3d at 399.

Success on such an “off label” claim would provide a manufacturer

with a strong incentive to alter its label to avoid future

liability. See id.

The district court found that the farmers failed to

establish a genuine issue of material fact that the Dow

retailers' comments differed or strayed in any material manner

from the contents of the Strongarm label.15 After reviewing the

record, we agree with the district court. Thus, the farmers'

warranty claims are preempted under § 136v(b). See id. at 400

(refusing to overturn a grant of summary judgment on a defense of

preemption where the plaintiffs failed to establish that the

15
The district court held that one pre-sale representation by
Dow retailers deviated from the content of the Strongarm label.
The court found that the representation, however, was controlled by
the label's "Limitation of Remedies" provision. The farmers' do
not seek appellate review of the district court's application of
the "limitation of remedies" provision.

16
representations forming the basis of the claim differed from the

contents of the FIFRA label).

The farmers' fraud claims, based upon the same “off label”

statements by Dow representatives, are subject to an identical

analysis. Because no evidence was presented demonstrating that

the retailer statements deviated from the contents of the

Strongarm label, the fraud claims are similarly preempted by §

136v(b).

The DTPA does not create a warranty; rather, it establishes

a remedy for the breach of an independent warranty. See Centex

Homes v. Buecher, 95 S.W.3d 266, 269 (Tex. 2002). Because the

only warranty at issue is based upon these "off-label" comments,

the farmers’ success on a DTPA action would also induce Dow to

alter its label. The DTPA claim is thus necessarily preempted by

FIFRA § 136v(b).

b) Defective Design

Defectively manufactured or designed products properly

labeled under FIFRA are generally subject to state regulation.

See Netland v. Hess & Clark, Inc., 284 F.3d 895, 899 (8th Cir.

2002). Dow, however, correctly contends that the farmers’

defective design claim is merely a disguised claim for failure to

warn. See Grenier v. Vermont Log Buildings, Inc., 96 F.3d 559,

564 (1st Cir. 1996) ("[M]erely to call something a design or

17
manufacturing defect claim does not automatically avoid FIFRA's

explicit preemption clause."). One cannot escape the heart of

the farmers’ grievance: Strongarm is dangerous to peanut crops in

soil with a pH level over 7.0, and that was not disclosed to

them.

In Netland, the Eighth Circuit evaluated a FIFRA preemption

defense to a strict liability claim. See Netland, 284 F.3d at

899. The Netland court found that the plaintiff’s expert

testimony was insufficient to establish a design defect, and that

the claim was obviously more directed to deficiencies in the

EPA-approved label. See id. at 900-01.

Netland is a good guide for us. The farmers' counterclaim

presents a straightforward design defect claim, that Strongarm

was unreasonably dangerous at the time it left Dow's control.

Nonetheless, the farmers did not claim that Strongarm is

unreasonably dangerous for use on all peanut crops; rather, they

asserted that Strongarm is dangerous when applied to crops in

soil with high pH levels. See Grenier, 96 F.3d at 565 (finding

plaintiff’s claim that a product was defectively designed because

it was foreseeable that it would be used in a particular way "is

effectively no more than an attack on the failure to warn against

[that] use and therefore is a preempted claim").

We find that the farmers' strict liability counterclaim is

functionally a disguised claim for failure to warn. It is

inescapable that success on this claim would again necessarily

18
induce Dow to alter the Strongarm label. The district court did

not err in ruling that FIFRA expressly preempts the farmers’

defective design claim.

c) Negligence

The farmers also maintain that Dow was negligent in the

testing, manufacture, and production of Strongarm. They overlook

that a negligent testing claim is, as a matter of Texas law, a

variation of an action for failure to warn. See American Tobacco

Co. v. Grinnell, 951 S.W.2d 420, 437 (Tex. 1997). We agree with

the district court that the farmers' negligent manufacture claim

was, again, simply a disguised claim for failure to warn and is

preempted by § 136v(b).

III.

Each of the farmers’ claims exceeded the $75,000 statutory

requirement for federal diversity jurisdiction. Moreover, the

district court conducted a proper Trejo abstention analysis.

Given that the balance of the Trejo factors does not appear to

point clearly toward abstention, we find that the district court

did not abuse its discretion by entertaining the declaratory

judgment action. We reiterate that, because FIFRA’s express

preemption clause is self-executing, FIFRA preemption of

performance-related state law claims is not dependent upon the

19
existence of conflicting EPA regulations. Moreover, the farmers'

claims for breach of warranty, fraud, DTPA, defective design and

negligence are all preempted by FIFRA’s express preemption clause

because success on such claims would necessarily induce Dow to

alter its product label. AFFIRMED.

20