### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-30058 Summary Calendar

_______________



### J OHNNY 

### B YONE



### , I NDIVIDUALLY AND ON B EHALF OF A C LASS OF A LL O THERS S IMILARLY S ITUATED ; 

### J OHNNY 

### O DOM



### , I NDIVIDUALLY AND ON B EHALF OF A C LASS OF A LL O THERS S IMILARLY S ITUATED

,



### Plaintiffs-Appellants,

VERSUS



### M ONSANTO 

### C OMPANY 

### ; ET AL



### .,

Defendants,



### M ONSANTO 

### C OMPANY 

### ; A SGROW 

### S EED 

### C OMPANY 

### ; SF S ERVICES



### ,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

_________________________ 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 soybe ans during 1997 and

199 8

. Experiencing lower yields than anticipated, they

sued the developer of this

st rain of soybean, Monsanto Company, and

* Pursuant to 5 TH C IR

. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the

limited circumstances s et forth in 5 T H C IR

. R. * (...continued)

47.5.4.2

two seed companies, Asgrow Seed Company

and SF Se rvices, 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 compr ehensive ruling entered on December 13, 2000.

I.

Monsanto Company genetically engineered

the Roundup Ready® soybean to resist the

effects of Roundup brand herbicide s o that

farmers could spray to control weeds without harming their crop. Byone and Odom admit

that the soybeans wit hstood the herbicide as expected, b ut 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 simultaneously. Byone and Odom claim that such advertising fraudulently misrepresented the performance of these seeds. We have reviewed

the record, and we conclude th a t the court correctly entered summary judgment.

II. Byo ne’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 torti ous or negligent misrepresentation. S ee L A

. C IV

. C ODE A N N

. 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 plainti ff has information

sufficient t o prompt further inquiry. S ee Eldredge v. Martin Marietta Corp., 207 F.3d 737, 742 (5th Cir. 1992)

. A ssuming arguendo

that the doctrine applies here, the latest time at
which Byone and Odom could have had such

information was when they harves ted thei r 1 997 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 t imely, the y cannot prevail. First, they

point us t o no actual promise or guarantee of a high yield; they
present only scient ific data and farm e rs’ testimony suggesting that Ro undup Ready®

seeds ha ve equal yield p otential to that of

other soybean varieties

. S e c ond, even assuming that these sophist i cated soybean producers just ifiably relied on some ephemeral promise in t he advertisements, only

misstatements concerning past or present facts

a re 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

disclai mer 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 purchasers ran the store properly, sales definitely

would increase. We concluded that even this promise was not actionable. A meric a’s Favorite Chicken, 130 F.3d at 186.