Case 1:22-cv-00903-NRN Document 1 Filed 04/14/22 USDC Colorado Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No. ________________________
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`TIMOTHY CILA,
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`Plaintiff,
`v.
`JBS USA FOOD COMPANY HOLDINGS a/k/a
`JBS USA HOLDINGS, INC. a/k/a JBS USA
`PROMONTORY HOLDINGS I LLC a/k/a JBS
`USA PROMONTORY HOLDINGS II LLC,
`Defendant.
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`NOTICE OF REMOVAL
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`Defendant JBS USA Food Company Holdings (“JBS”) files this Notice of Removal to
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`remove this action to the United States District Court for the District of Colorado pursuant to 28
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`U.S.C. §§ 1331, 1441, and 1446. Plaintiff Timothy Cila originally filed this action in the District
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`Court for Weld County, Colorado, Case No. 2022CV30189, where the action is currently pending.
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`I.
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`NATURE OF THE ACTION
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`1.
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`While presented as a personal injury case, Mr. Cila’s state court lawsuit against a
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`meat-processing facility due to his alleged exposure to COVID-19 during the global pandemic
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`implicates and necessarily raises serious and substantial federal issues involving the Federal Meat
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`Inspection Act, (“FMIA”), 21 U.S.C. §§ 601 et seq., and the operation of a facility declared critical
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`infrastructure by the United States President under the powers vested in the Executive Branch by
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`the Defense Production Act (“DPA”).
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`1:22-CV-00903
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`Case 1:22-cv-00903-NRN Document 1 Filed 04/14/22 USDC Colorado Page 2 of 11
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`2.
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`On March 27, 2020, Mr. Cila provided contract security guard services at a beef
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`harvesting facility located in Greeley, Colorado. See Complaint and Jury Demand (“Compl.”)
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`attached hereto as Exhibit (“Ex.”) A, ¶¶ 6-10. According to the Complaint, Mr. Cila was exposed
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`to COVID-19 by two unidentified female employees of the plant as they were attempting to enter
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`the facility. Id. ¶¶ 10-23.
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`3.
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`Mr. Cila alleges that the two women were attempting to meet with the human
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`resources department for purposes of “presenting letters from their doctors stating that they should
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`quarantine at home for 14 days due to COVID-19.” Id. ¶¶ 10-11.
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`4.
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`Mr. Cila also contends that neither woman was wearing a mask or gloves when he
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`“encountered” them. Id. ¶ 12.
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`5.
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`On the other hand, Mr. Cila avers that he was wearing a mask and gloves “at the
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`time of his interaction with the two JBS employees.” Id.
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`6.
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`Two to three days later, Mr. Cila alleges that he was hospitalized for 35 days as a
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`result of COVID-19. Id. ¶ 23.
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`7.
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`Among other things, Mr. Cila alleges JBS failed to exercise reasonable care in the
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`operation of its meatpacking facility by failing to follow federal regulations and guidance issued
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`by the Occupational Safety and Health Administration (“OSHA”) and the Centers for Disease
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`Control and Prevention (“CDC”). See, e.g., Compl. ¶¶ 38, 52(f), and 58(d).
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`8.
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`His Complaint also implicitly blames JBS for keeping the facility open during the
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`pandemic. See, e.g., id. ¶¶ 52(b), (d), & (h).
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`9.
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`Additionally, Mr. Cila accuses JBS of failing to “put proper safety protocols in
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`place” by not providing adequate personal protective equipment, not erecting or placing barriers
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`Case 1:22-cv-00903-NRN Document 1 Filed 04/14/22 USDC Colorado Page 3 of 11
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`of any nature between individuals working at the harvesting plant, and not requiring staggered start
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`and end of shift times for plant employees. See, e.g., id. ¶ 31.
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`10.
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`Although Mr. Cila’s alleged exposure to and sickness from the virus occurred
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`nearly two years ago, he waited until the eve of the second anniversary of the event to file a lawsuit
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`against JBS. See generally id.
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`11. Mr. Cila’s Complaint includes claims for negligence, negligence per se, premises
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`liability, and negligent training and supervision. Id. ¶¶ 28-65.
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`II.
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`REMOVAL IS TIMELY
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`12.
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`On March 23, 2022, Mr. Cila filed his Complaint and Jury Demand in the District
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`Court for Weld County, Colorado, styled Timothy Cila v. JBS USA Food Company Holdings a/k/a
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`JBS USA Holdings, Inc. a/k/a JBS USA Promontory Holdings I LLC a/k/a JBS USA Promontory
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`Holdings II LLC, Case Number 2022CV30189. See Compl.
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`13.
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`Service was made on JBS USA Food Company Holdings on March 25, 2022. See
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`Exhibit B.
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`14.
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`15.
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`No other entity has been served.
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`Pursuant to 28 U.S.C. § 1446(a), a copy of all process, pleadings, and orders served
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`upon JBS are attached as follows: The Complaint is attached as Exhibit A; the Summons is
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`attached as Exhibit C. In addition, the civil case cover sheet from the state court action is attached
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`as Exhibit D, and an Initial Case Management Order issued by the Weld County District Court is
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`attached as Exhibit E.
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`16.
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`Pursuant to 28 U.S.C. § 1446(b), this Notice is filed within thirty (30) days of the
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`date JBS was served with the Complaint.
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`17.
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`To the extent necessary, JBS USA Promontory Holdings I LLC and JBS USA
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`Promontory Holdings II LLC consent to removal. See Exhibit F.
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`18.
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`JBS USA Holdings, Inc. has not existed for nearly seven (7) years and thus its
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`consent is unnecessary.
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`III. REMOVAL IS PROPER
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`19.
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`Removal is proper pursuant to 28 U.S.C. § 1331 because this action arises under
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`the Constitution, laws, or treaties of the United States.
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`A.
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`Federal Question Jurisdiction Exists Over This Dispute.
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`20.
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`This Court has federal question jurisdiction under 28 U.S.C. § 1331 and Grable &
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`Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005). Under Grable, a state law
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`claim can give rise to federal question jurisdiction as long as it appears from the lawsuit that the
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`right to relief depends upon the construction or application of federal law.
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`21.
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`A claim purportedly arising under state law may be removed to federal court
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`pursuant to federal question jurisdiction when the federal issue is: (1) necessarily raised; (2)
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`actually disputed; (3) substantial; and (4) capable of resolution in federal court without disrupting
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`the federal-state balance approved by Congress. Gunn v. Minton, 568 U.S. 251, 258 (2013) (citing
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`Grable, 545 U.S. at 314). “Where all four of these requirements are met . . . jurisdiction is proper
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`because there is a ‘serious federal interest in claiming the advantages thought to be inherent in a
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`federal forum,’ which can be vindicated without disrupting Congress’s intended division of labor
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`between state and federal courts.” Id. (quoting Grable, 545 U.S. at 313–14).
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`22.
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`All four of those requirements for removal under federal question jurisdiction are
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`met here.
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`23. Mr. Cila’s Claims Necessarily Raise a Federal Issue. As to the first requirement,
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`Mr. Cila’s Complaint explicitly refers to federal statutes and regulations, as well as government-
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`promulgated standards, guidelines and protocols applicable to the national meat-processing
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`industry, particularly with respect to the COVID-19 pandemic that was declared a national
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`emergency by the President of the United States. Compl. ¶¶ 38, 52(f), & 58(d).
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`24.
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`Indeed, one essential question is embedded in each of Mr. Cila’s claims: In the
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`midst of a presidentially declared national emergency, how must America’s meat processing
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`facilities balance the interests of safeguarding workplace health and safety with their ongoing
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`obligation to feed the American people? Any duty ascribed to JBS unavoidably implicates the
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`President’s explicit directive regarding the safe operation of meat processing facilities during the
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`pandemic, as well as federal policies governing the nation’s food supply, national security, and
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`economy. See Exec. Order No. 13917, “Delegating Authority Under the Defense Production Act
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`With Respect to Food Supply Chain Resources During the National Emergency Caused by the
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`Outbreak of COVID-19,” 85 Fed. Reg. 26313 (Apr. 28, 2020) (“Food Supply Chain Order”)
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`(invoking authority under the Defense Production Act, 50 U.S.C. § 4501 et seq.).
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`25.
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`Besides explicitly citing to and relying on federal statutes and CDC and OSHA
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`regulations as the basis of his claims, the Food Supply Chain Order also dispels any doubt that a
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`unique federal interest is implicated here. The Greeley meatpacking plant where Mr. Cila provided
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`security guard services supplies “a scarce and critical material essential to the national defense,”
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`as defined by the Defense Production Act of 1950. See 85 Fed. Reg. 26313 (meat and poultry
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`suppliers constitute “critical infrastructure during the national [COVID-19] emergency”).
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`26.
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`Here, Mr. Cila seeks to impose liability on JBS for allegedly failing to mitigate the
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`risk of COVID-19 transmission at a meat processing plant – precisely the conduct governed by the
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`Food Supply Chain Order. Compare Compl. ¶¶ 31, 38, 52(b), (d)-(f), & (f), 38(d) with 85 Fed.
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`Reg. 26313, 26313 (ordering meat processors “continue operations consistent with the guidance
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`for operations jointly issued by the CDC and OSHA” in light of the “dramatic toll” taken by
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`“necessary mitigation measures”).
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`27.
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`And as will be discussed further below, Mr. Cila’s allegations of wrongdoing
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`necessarily implicate conduct governed by the Federal Meat Inspection Act (“FMIA”), 21 U.S.C.
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`§ 601 et seq.
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`28.
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`Also, as to the first requirement, Mr. Cila’s Complaint seeks to impose liability on
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`JBS for failing to comply with state and local Colorado Health Orders and requirements, even
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`though the Food Supply Chain Order issued under the DPA confirmed that meatpacking facilities,
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`such as the Greeley plant, were to follow CDC and OSHA standards, guidelines and protocols.
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`See Compl. ¶ 38(d).
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`29.
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`Further, Mr. Cila’s claims’ reliance on state and local regulations (Compl. ¶ 38(d))
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`necessarily clash with and are preempted by the FMIA, as well as conflict with the Foods Supply
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`Chain Order issued under the DPA, which confirmed that meatpacking facilities, such as the
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`Greeley plant, were to follow CDC and OSHA standards, guidelines, and protocols.
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`30.
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`A state court’s application of any standard of conduct on a meat processing facility
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`contrary to that imposed by the federal government may compromise a unique federal interest and
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`frustrate the government’s capacity to impose a uniform rule. Cf. Rural Cmty. Workers All. v.
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`Smithfield Foods, Inc., No. 5:20-cv-06063, 2020 WL 2145350, at *8 (W.D. Mo. May 5, 2020)
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`(recognizing that referring a plaintiff’s tort claims against a meat processing plant to OSHA is
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`necessary to “ensure uniform national enforcement of the Joint [CDC and OSHA] Guidance”).
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`31.
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`Accordingly, for all these reasons, the first element necessary for federal question
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`jurisdiction under Grable is satisfied.
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`32.
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`The Federal Issues Are Actually Disputed. The second requirement is also met
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`because JBS disputes that Mr. Cila’s claims are consistent with federal law. To the contrary, Mr.
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`Cila’s claims are inconsistent with, and preempted by, federal law including the FMIA. The
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`Department of Agriculture has promulgated hundreds of pages of federal regulations under the
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`FMIA governing operations of meat-processing facilities, including detailed requirements
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`addressing the control of infectious diseases among facility workers and required use of personal
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`protective equipment. For example, the United States Department of Agriculture’s (“USDA”)
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`Food Safety and Inspection Service (“FSIS”) has promulgated a specific “[d]isease control”
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`regulation requiring that “[a]ny person who has or appears to have an infectious disease . . . must
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`be excluded from any operations which could result in product adulteration and the creation of
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`insanitary conditions until the condition is corrected.” 9 C.F.R. § 416.5(c). FSIS regulations also
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`require facilities to “encourage early reporting of symptoms of injuries and illnesses,” id. § 381.45,
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`and also govern the personal protective equipment that facility workers must wear. Id. § 416.5(b).
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`33.
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`The FMIA also expressly preempts state-law requirements “in addition, to, or
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`different than” those imposed by the FMIA regarding the “premises, facilities, and operations” of
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`facilities that the USDA inspects under the FMIA. 28 U.S.C. § 678. For purposes of preemption,
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`the term “requirements” includes obligations claimed to be imposed by common law and by state
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`statute. See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 445-46 (2005).
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`34.
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`Existing legal authority supports JBS’s position. In Johnson v. Tyson Foods, Inc.,
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`No. 2:21-CV-156-Z-BR, 2022 WL 456897, at *3-4 (N.D. Tex. Jan. 20, 2022), the court dismissed
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`with prejudice similar claims against a meatpacker relating to employees’ alleged exposure to
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`COVID-19 on the grounds that the state law claims were preempted as a matter of law by the
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`FMIA.
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`35.
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`Accordingly, for all these reasons, the second requirement for federal question
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`jurisdiction is met.
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`36.
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`There Is a Substantial Federal Issue. The third requirement also is satisfied
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`because the issues are substantial to the federal system as a whole. Uniform application of laws
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`and regulations regarding the nation’s food supply is of monumental national concern. As noted
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`above, the DPA recognizes that meat processing plants provide a “scarce and critical material to
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`the national defense.” See 85 Fed. Reg. 26313. Application of various state laws would result in
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`inconsistencies in the operation of meat-processing facilities, as well as the delivery and quality of
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`protein sources to the public, thereby nullifying the purpose of federal controls set forth by the
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`USDA, the DPA, the CDC, and OSHA.
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`37.
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`38.
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`Accordingly, the third requirement of Grable is satisfied.
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`This Court’s Determination Will Not Disturb the Balance of State and Federal
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`Judicial Responsibilities. The fourth requirement is satisfied because exercising federal
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`jurisdiction in this case does not disturb the balance between federal and state interests. It instead
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`promotes that balance because of the strong federal interest in uniformly regulating meatpackers,
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`particularly during the global pandemic when the President declared these entities to be critical
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`infrastructure under the DPA. Accordingly, exercising jurisdiction in this case will not “materially
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`affect, or threaten to affect, the normal currents of litigation,” such that a “flood of cases” would
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`result on the federal docket. See Grable, 545 U.S. at 319.
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`39.
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`Therefore, the fourth and final requirement for federal question jurisdiction is met.
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`IV. CONCLUSION
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`40.
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`As demonstrated herein, removal of this dispute to this Court is proper because this
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`Court would have had original jurisdiction of this matter under 28 U.S.C. §§ 1331.
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`41.
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`Removal of this dispute to this Court is proper because federal question jurisdiction
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`exists based on the Complaint’s allegations and controlling law demonstrating that Mr. Cila’s
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`claims arise under the Constitution, laws, or treaties of the United States.
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`42.
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`Finally, to the extent that the above basis for federal jurisdiction does not extend to
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`one or more of Mr. Cila’s claims, this Court has supplemental jurisdiction over such claim or
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`claims pursuant to 28 U.S.C. § 1367.
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`43.
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`JBS will promptly provide written notice of this filing to all adverse parties and will
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`file a copy of this Notice of Removal with the clerk of the state court where this suit is currently
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`pending. 28 U.S.C. § 1446(d).
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`Dated: April 14, 2022.
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`Respectfully submitted,
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` /s/ Matthew Morrison_______
`Jonathan M. Watson (CO Bar No. 45203)
`Matthew M. Morrison (CO Bar No. 41323)
`Spencer Fane, LLP
`1700 Lincoln Street, Suite 2000
`Denver, CO 80203
`(303) 839-3788
`jwatson@spencerfane.com
`mmorrison@spencerfane.com
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`Attorneys for Defendant
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`Case 1:22-cv-00903-NRN Document 1 Filed 04/14/22 USDC Colorado Page 11 of 11
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`CERTIFICATE OF SERVICE
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`I hereby certify that on April 14, 2022, a true and correct copy of the foregoing NOTICE
`OF REMOVAL was filed with the Clerk of the Court using the e-filing system and was sent to
`the following:
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`Sarah A. Schreiber, Esq.
`Wilhite, Rose, McClure & Sawaya, PC
`1600 Ogden Street
`Denver, CO 80218
`Phone Number: (303) 839-1650
`E-mail: sschreiber@sawayalaw.com
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`Counsel for Plaintiff
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` /s/ Olivia Hintz_______
` Paralegal Assistant
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