Fernandez v. Tyson Foods, Inc.

509 F.Supp.3d 1064

Oscar FERNANDEZ, Individually and as Administrator of the Estate of Isidro Fernandez, Plaintiff,

v.TYSON FOODS, INC., Tyson Fresh Meats, Inc., John H. Tyson, Noel W. White, Dean Banks, Stephen R. Stouffer, Tom Brower, Tom Hart, Cody Brustkern, Bret Tapken, and John Casey, Defendants.

No. 20-CV-2079-LRR

United States District Court, N.D. Iowa, Eastern Division.

Signed December 28, 2020

John Jay Rausch, Rausch Law Firm PLLC, Thomas P. Frerichs, Frerichs Law Office PC, Waterloo, IA, Gabriel Phillips, Pro Hac Vice, George Bryan Ulmer, III, Pro Hac Vice, Mel C. Orchard, III, Pro Hac Vice, The Spence Law Firm, LLC, Jackson, WY, for Plaintiff.

Kevin J. Driscoll, Tamara K. Hackmann, Finley Law Firm, P.C., Des Moines, IA, Christopher S. Coleman, Pro Hac Vice, Perkins Coie LLP, Phoenix, AZ, Mary Z. Gaston, Perkins Coie LLP, Seattle, WA, for Defendants Tyson Foods, Inc., Tyson Fresh Meats, Inc., John H. Tyson, Noel W. White, Dean Banks, Stephen R. Stouffer, Tom Brower.

Nicholas A. Klinefeldt, Faegre Drinker Biddle & Reath LLP, Kevin J. Driscoll, Tamara K. Hackmann, Finley Law Firm, P.C., Des Moines, IA, Christopher S. Coleman, Pro Hac Vice, Perkins Coie LLP, Phoenix, AZ, Mary Z. Gaston, Perkins Coie LLP, Seattle, WA, for Defendant Tom Hart.

Nicholas A. Klinefeldt, Faegre Drinker Biddle & Reath LLP, Kevin J. Driscoll, Finley Alt Smith Scharnberg Craig Hilmes & Gaffney, PC, Des Moines, IA, for Defendant Cody Brustkern.

Nicholas A. Klinefeldt, Faegre Drinker Biddle & Reath LLP, Kevin J. Driscoll, Finley Law Firm, P.C., Des Moines, IA, for Defendants John Casey, Bret Tapken.

ORDER

LINDA R. READE, JUDGE

TABLE OF CONTENTS

I. INTRODUCTION ...––––

II. BACKGROUND OF THE CASE ...––––

A. General Procedural History ...––––

B. Causes of Action in the Petition ...––––

C. Factual Allegations in the Petition ...––––

III. NOTICE OF REMOVAL ...––––

IV. MOTION TO REMAND ...––––

A. Parties' Arguments ...––––

B. Applicable Law ...––––

1. Federal Jurisdiction ...––––

2. Removal to Federal Court ...––––

3. Removal Based on Federal Officer Statute ...––––

C. Application ...––––

1. Federal Officer Removal ...––––

a. Acted under the direction of a federal officer ...––––

b. Causal connection ...––––

c. Colorable federal defense ...––––

d. Summary ...––––

2. Removal Based on a Federal Question ...––––

3. Attorney Fees and Costs ...––––

V. CONCLUSION ...––––

I. INTRODUCTION

The matter before the court is Plaintiff Oscar Fernandez's Motion to Remand ("Motion") (docket no. 22).

II. BACKGROUND OF THE CASE

A. General Procedural History

On August 5, 2020, Plaintiff filed a "Petition at Law and Demand for Jury Trial" ("Petition") (docket no. 2) in the Iowa District Court for Black Hawk County. On October 2, 2020, Defendants Tyson Foods, Inc. and Tyson Fresh Meats, Inc. (collectively, "Tyson") filed a Notice of Removal (docket no. 1), bringing the case before this court.¹ On November 2, 2020, Plaintiff filed the Motion. On November 10, 2020, a "Brief of Amicus Curiae Public Citizen in Support of Plaintiff's Motion to Remand" (docket no. 28) was filed. On November 16, 2020, Tyson filed a Resistance (docket no. 31).

On November 11, 2020, Plaintiff filed the First Amended Complaint (docket no. 29), which among other things, dismissed Defendants Mary A. Oleksiuk, Elizabeth Croston, Hamdija Beganovic, James Hook, Ramiz Muheljic, Missia Abad Bernal and John/Jane Does 1-10. Additionally, Defendants Cody Brustkern, John Casey and Bret Tapken were added in the First Amended Complaint.

B. Causes of Action Alleged in the Petition

Even though Plaintiff has filed a First Amended Complaint in this case, for purposes of the Motion, the court considers the complaint, or in this instance, the Petition that existed at the time that the Notice of Removal was filed. See Scarlott v. Nissan North America, Inc. , 771 F.3d 883, 888 n.2 (5th Cir. 2014) (citing Boelens v. Redman Homes, Inc. , 759 F.2d 504, 507 (5th Cir. 1985) ); see also Harper v. AutoAlliance Intern., Inc. , 392 F.3d 195, 210 (6th Cir. 2004) ("The existence of subject matter jurisdiction is determined by examining the complaint as it existed at the time of removal"); United Farm Bureau Mut. Ins. Co., Inc. v. Metropolitan Human Relations Commission , 24 F.3d 1008, 1014 (7th Cir. 1994) ("It is a fundamental principle of law that whether subject matter jurisdiction exists is a question answered by looking to the complaint as it existed at the time the petition for removal was filed") (quotation omitted); Salton v. Polyock , 764 F.Supp.2d 1033, 1035 (N.D. Iowa 2011) ("[A] fundamental principle of removal jurisdiction is that whether subject matter jurisdiction exists is a question answered by looking to the complaint as it existed at the time the petition for removal was filed"); Virginia Gay Hospital, Inc. v. Amerigroup Iowa, Inc. , No. C18-112-LTS, 2019 WL 5483827, at *2 (N.D. Iowa Feb. 15, 2019) (same).

In the first cause of action in the Petition Plaintiff alleges fraudulent misrepresentation and vicarious liability and seeks punitive damages against Tyson. See Petition ¶¶ 89-103. In the second cause of action, Plaintiff alleges gross negligence and seeks punitive damages against Defendants John H. Tyson, Noel W. White, Dean Banks, Stephen R. Stouffer and Tom Brower (collectively, "Executive Defendants"). See id. ¶¶ 104-119. In the third cause of action, Plaintiff alleges gross negligence and fraudulent misrepresentation and seeks punitive damages against Defendants Tom Hart, Bret Tapken, Cody Brustkern and John Casey (collectively, "Supervisory Defendants").² Id. ¶¶ 120-141.

Specifically, Plaintiff alleges that Tyson "made numerous false representations" to Plaintiff's decedent at the Waterloo facility and "falsely represented" that: (1) COVID-19 had not been detected at the facility; (2) COVID-19 was not spreading through the facility; (3) worker absenteeism was not related to COVID-19; (4) sick workers were not permitted to enter the facility; (5) workers from other Tyson facilities that were shut down due to COVID-19 outbreaks were not permitted to enter the Waterloo facility; (6) sick or symptomatic workers would be sent home immediately and would not be permitted to return until cleared by health officials; (7) workers would be notified if they had been in close contact with an infected co-worker; (8) the workers' health and safety was a top priority for Tyson; (9) safety measures implemented at the Waterloo facility would prevent or mitigate the spread of COVID-19 and protect workers from infection; (10) the Waterloo facility needed to stay open in order to avoid meat shortages in the United States; and (11) the Waterloo facility was a safe work environment. Id. ¶¶ 90-91(a)-(k). Plaintiff alleges that Tyson knew that such representations were false and material. Id. ¶¶ 92-93. Further, Plaintiff alleges that Tyson made the false representations to induce Plaintiff's decedent to continue working despite the uncontrolled COVID-19 outbreak in the Waterloo facility. Id. ¶ 94. Plaintiff alleges that Plaintiff's decedent "accepted and relied" on Tyson's representations and Plaintiff's decedent was induced to continue working at the Waterloo facility. Id. ¶¶ 95-96. Plaintiff also alleges that Tyson is "vicariously liable for the culpable acts and omissions committed by all of its agents acting within the course and scope of their agency," including the Executive Defendants and Supervisory Defendants. Id. ¶ 98.

Plaintiff alleges that the Executive Defendants "had a duty to exercise reasonable care to prevent injuries to [Plaintiff's decedent]" and breached their duty by the following acts and omissions: (1) failing to develop or implement worksite assessments to identify COVID-19 risks and prevention strategies for the Waterloo facility; (2) failing to develop or implement testing and workplace contact tracing of COVID-19 positive workers at the Waterloo facility; (3) failing to develop and implement a comprehensive screening and monitoring strategy aimed at preventing the introduction of COVID-19 into the worksite, including: a program to effectively screen workers before entry into the workplace; return to work criteria for workers infected with or exposed to COVID-19 and criteria for exclusion of sick or symptomatic workers; (4) allowing or encouraging sick or symptomatic workers to enter or remain in the workplace; (5) failing to promptly isolate and send sick or symptomatic workers home; (6) failing to configure communal work environments so that workers were spaced at least six feet apart; (7) failing to modify the alignment of workstations, including those along processing lines, so that workers did not face each other; (8) failing to install physical barriers to separate or shield workers from each other; (9) failing to develop, implement or enforce appropriate cleaning, sanitation and disinfection practices to reduce exposure or shield workers from COVID-19 at the Waterloo facility; (10) failing to provide workers with appropriate personal protective equipment, including face coverings; (11) failing to require employees to wear face coverings; (12) failing to provide adequate hand washing or hand sanitizing stations throughout the Waterloo facility; (13) failing to slow production in order to operate with a reduced work force; (14) failing to develop, implement or enforce engineering or administrative controls to promote social distancing; (15) failing to modify, develop, implement, promote and educate workers, including workers with limited English language abilities, regarding revised sick leave, attendance or incentive policies to ensure that sick or symptomatic workers stay home; (16) failing to ensure that workers, including workers with limited English language abilities, were aware of, or understood modified sick leave, attendance or incentive policies; (17) failing to ensure adequate ventilation in work areas to minimize workers' potential exposure to COVID-19 and failing to minimize air flow from fans blowing...