IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF IOWA
`EASTERN DIVISION
`
`
`Hus Hari Buljic individually and as
`Administrator of the Estate of Sedika
`Buljic, Honario Garcia individually
`and as Administrator of the Estate of
`Reberiano Leno Garcia, and Arturo de
`Jesus Hernandez and Miguel Angel
`Hernandez as Co-Administrators of
`the Estate of Jose Luis Ayala, Jr.,
`Plaintiffs,
`
`
`
`
`Case No. 6:20-cv-02055-KEM
`
`
`
`
`vs.
`
`Tyson Foods, Inc., Tyson Fresh Meats,
`Inc., John H. Tyson, Noel W. White,
`Dean Banks, Stephen R. Stouffer, Tom
`Brower, Mary A. Oleksiuk, Elizabeth
`Croston, Tom Hart, Hamdija
`Beganovic, James Cook, Ramiz
`Muheljic, Gustavo Cabarea, Pum
`Pisng, Alex Buff, Walter Cifuentes,
`Muwi Hlawnceu, Cody Brustkern,
`Mark Smith, and John/Jane Does 1-
`10,
`
`Defendants.
`
`BRIEF IN SUPPORT OF
`TYSON FOODS, INC. and TYSON FRESH MEATS, INC.’S
`MOTION TO DISMISS
`
`(Oral Argument Requested)
`
`
`
`
`
`
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`TABLE OF CONTENTS
`
`
`Page
`
`2.
`
`II.
`
`
`MOTION ....................................................................................................................... 1
`INTRODUCTION AND STATEMENT OF ISSUES ................................................... 1
`BACKGROUND ............................................................................................................ 4
`ARGUMENT ................................................................................................................. 5
`I.
`Plaintiffs’ claims are barred in this Court under the Iowa Workers’
`Compensation Act. ............................................................................................. 5
`A.
`Plaintiffs’ attempts to avoid the IWCA are without merit. ................... 6
`1.
`Plaintiffs cannot circumvent the IWCA by recasting work-
`place injury claims as fraud. ........................................................ 7
`Plaintiffs cannot use vicarious liability to create a “wan-
`ton gross negligence” exception for employers. ........................... 8
`Plaintiffs’ claims are inadequately pleaded. ..................................................... 9
`A.
`The complaint fails to plead fraud with particularity. ........................ 10
`B.
`The complaint fails to adequately plead causation. ............................. 13
`C.
`The complaint fails to comply with the Iowa COVID-19 Re-
`sponse and Back-to-Business Act. ........................................................ 18
`III. Plaintiffs’ claims are preempted by federal law. ............................................ 19
`A.
`The complaint takes no account of the broad, express preemp-
`tion of the Federal Meat Inspection Act (FMIA). ................................. 19
`The complaint takes no account of the federal designation of Ty-
`son facilities as critical infrastructure. ................................................ 20
`CONCLUSION ............................................................................................................ 21
`
`B.
`
`
`
`
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`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`CASES
`
`Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. v.
`Lockridge,
`403 U.S. 274 (1971) ................................................................................................ 21
`Ambassador Press, Inc. v. Durst Image Tech. U.S., LLC,
`949 F.3d 417 (8th Cir. 2020) ............................................................................ 11, 19
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ......................................................................................... passim
`Bailey v. Batchelder,
`576 N.W.2d 334 (Iowa 1998) .................................................................................... 5
`Brown v. N. Cent. F.S., Inc.,
`987 F. Supp. 1150 (N.D. Iowa 1997) ...................................................................... 13
`Cary v. Hickenlooper,
`673 F. App’x 870 (10th Cir. 2016) .......................................................................... 17
`Cincinnati Ins. Cos. v. Kirk,
`801 N.W.2d 856 (Iowa Ct. App. 2011) ................................................................. 2, 7
`Crest Constr. II, Inc. v. Doe,
`660 F.3d 346 (8th Cir. 2011) ............................................................................ 12, 13
`Crosby v. Nat’l Foreign Trade Council,
`530 U.S. 363 (2000) ................................................................................................ 21
`Drobnak v. Andersen Corp.,
`561 F.3d 778 (8th Cir. 2009) .................................................................. 3, 10, 11, 12
`Eclectic Props. E., LLC v. Marcus & Millichap Co.,
`751 F.3d 990 (9th Cir. 2014) .................................................................................. 10
`Fish v. Princess Cruise Lines Ltd.,
`No. CV 20-3894 DSF (C.D. Cal. Aug. 21, 2020), ECF No. 26 ........................... 3, 14
`Ganka v. Clark,
`941 N.W.2d 356, 2019 WL 6358301 (Iowa Ct. App. 2019) ...................................... 9
`Gibson v. ITT Hartford Ins. Co.,
`621 N.W.2d 388 (Iowa 2001) .................................................................................. 12
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`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`CASES (CONT.)
`Gunderson v. ADM Inv’r Servs., Inc.,
`85 F. Supp. 2d 892 (N.D. Iowa 2000) ..................................................................... 13
`Hager v. Arkansas Dep’t of Health,
`735 F.3d 1009 (8th Cir. 2013) ................................................................................ 16
`Hardin Cty. Sav. Bank v. City of Brainerd,
`602 F. Supp. 2d 1012 (N.D. Iowa 2008) ................................................................. 14
`Harned v. Farmland Foods, Inc.,
`331 N.W.2d 98 (Iowa 1983) .............................................................................. 2, 7, 9
`In re Pre-Filled Propane Tank Antitrust Litig.,
`893 F.3d 1047 (8th Cir. 2018) .................................................................................. 9
`In re RFC & ResCap Liquidating Tr. Action,
`444 F. Supp. 3d 967 (D. Minn. 2020) ..................................................................... 15
`Jensen v. Vanderleest,
`Nos. 9-369, 98-1950, 1999 WL 975879 (Iowa Ct. App. Oct. 27, 1999) .................... 5
`Kelly v. City of Omaha, Neb.,
`813 F.3d 1070 (8th Cir. 2016) ................................................................................ 10
`Kloster v. Hormel Foods Corp.,
`612 N.W.2d 772 (Iowa 2000) .................................................................................... 6
`Mielke v. Ashland, Inc.,
`Civ. No. 4:05-CV-88, 2005 WL 8157992 (S.D. Iowa July 29, 2005) .................... 2, 8
`Missourians for Fiscal Accountability v. Klahr,
`830 F.3d 789 (8th Cir. 2016) .................................................................................. 15
`Moua v. Jani-King of Minn., Inc.,
`613 F. Supp. 2d 1103 (D. Minn. 2009) ................................................................... 11
`Nat’l Meat Ass’n v. Harris,
`565 U.S. 452 (2012) ................................................................................................ 19
`Nelson v. Winnebago Indus., Inc.,
`619 N.W.2d 385 (Iowa 2000) .................................................................................... 7
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`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`CASES (CONT.)
`Nuss v. Cent. Iowa Binding Corp.,
`284 F. Supp. 2d 1187 (S.D. Iowa 2003) .................................................................. 12
`Owner-Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp.,
`831 F.3d 961 (8th Cir. 2016) .................................................................................. 14
`Peterson v. Silverado Senior Living, Inc.,
`790 F. App’x 614 (5th Cir. 2019) ............................................................................ 17
`Phillips v. Covenant Clinic,
`625 N.W.2d 714 (Iowa 2001) .................................................................................. 14
`Rancho Viejo, LLC v. Norton,
`323 F.3d 1062 (D.C. Cir. 2003) .............................................................................. 20
`Remmes v. Int’l Flavors & Fragrances, Inc.,
`389 F. Supp. 2d 1080 (N.D. Iowa 2005) ................................................................. 10
`Rincon v. Covidien,
`No. 16-CV-10033 (JMF), 2017 WL 2242969 (S.D.N.Y. May 22, 2017) ................. 17
`Schaaf v. Residential Funding Corp.,
`517 F.3d 544 (8th Cir. 2008) ............................................................................ 13, 18
`Suckow v. NEOWA FS, Inc.,
`445 N.W.2d 776 (Iowa 1989) ................................................................................ 7, 9
`Swindol v. Aurora Flight Scis. Corp.,
`805 F.3d 516 (5th Cir. 2015) .................................................................................. 14
`Tigges v. City of Ames,
`356 N.W.2d 503 (Iowa 1984) .................................................................................... 6
`U.S. ex rel. Roop v. Hypoguard USA, Inc.,
`559 F.3d 818 (8th Cir. 2009) .................................................................................. 12
`Valentine v. Collier,
`960 F.3d 707 (5th Cir. 2020) .................................................................................. 15
`Walker v. Mlakar,
`489 N.W.2d 401 (Iowa 1992) .................................................................................... 6
`
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`TABLE OF AUTHORITIES
`(continued)
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`Page(s)
`
`CASES (CONT.)
`Weimer v. Int’l Flavors & Fragrance,
`240 F.R.D. 431 (N.D. Iowa 2007) ........................................................................... 11
`
`
`
`STATUTES
`21 U.S.C. § 678 ......................................................................................................... 4, 19
`Iowa Code § 85.3(1) ........................................................................................................ 5
`Iowa Code § 85.20 .......................................................................................................... 8
`Iowa Code § 85.20(1) ...................................................................................................... 5
`Iowa Code § 686D.4 ..................................................................................................... 18
`Iowa Code § 686D.5 ..................................................................................................... 18
`
`
`OTHER AUTHORITIES
`Fed. R. Civ. P. 9(b) ....................................................................................................... 10
`85 Fed. Reg. 26,313 (Apr. 28, 2020) ............................................................................ 20
`9 C.F.R. § 416.5(b)........................................................................................................ 20
`9 C.F.R. § 416.5(c) .................................................................................................... 4, 20
`9 Larson’s Workers’ Compensation Law § 104.05 ........................................................ 6
`
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`MOTION
`Tyson Foods, Inc. and Tyson Fresh Meats, Inc. (“Tyson”) respectfully move to
`dismiss the complaint under Rule 12(b)(6) because the claims against Tyson are
`barred by the Iowa Workers’ Compensation Act (“IWCA”).
`In addition, the complaint fails to plausibly allege that Tyson caused the al-
`leged injury, fails to satisfy the particularity requirements of Rule 9(b), and even if
`the allegations were otherwise sufficient, the alleged causes of action would be
`preempted by federal law.
`INTRODUCTION AND STATEMENT OF ISSUES
`The United States is facing a global pandemic whose impact and scope are with-
`out modern precedent. Millions have been infected with the novel coronavirus, and
`more than 200,000 Americans have died of complications related to COVID-19.
`Plaintiffs allege that their relatives, Sedika Buljic, Reberiano Leno Garcia, and
`Jose Luis Ayala, worked at a Tyson pork processing facility in Waterloo, Iowa; that
`they contracted COVID-19 at work; and that they died from the disease. That Ms.
`Buljic, Mr. Garcia, and Mr. Ayala are three of the many thousands of Americans who
`have died of complications related to COVID-19 is a tragedy.
`But this Court is the wrong forum to resolve Plaintiffs’ claims. Iowa has a strict,
`no-fault workers’ compensation system that is overseen by the
`Workers’ Compensation Commissioner. Plaintiffs’ claims against
`Tyson (and the other defendants) are barred—at least in this
`Court—under the exclusive remedy provisions of the IWCA,
`which directs that workplace injury claims must be adjudicated
`by the Iowa Division of Workers’ Compensation.
`Plaintiffs attempt to evade the IWCA by recasting the workplace injury claims
`of their relatives as ones for fraudulent misrepresentation. That has been tried before
`to avoid Iowa’s strict workers’ compensation system. Iowa courts have repeatedly held
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`that the “‘mere labeling of a claim for injuries’ as an intentional tort ‘cannot avoid the
`exclusivity of workers’ compensation if the gist of the claim is for bodily injury,’ or
`. . . occupational disease leading to death.” Mielke v. Ashland, Inc., Civ. No. 4:05-CV-
`88, 2005 WL 8157992, at *4 (S.D. Iowa July 29, 2005) (granting motion to dismiss
`mis-representation claim) (quoting Nelson v. Winnebago Indus., Inc., 619 N.W.2d 385,
`389 (Iowa 2000)). This is because “where a claim is predicated on the same facts as
`the work injury itself, simply labeling it as fraud is not sufficient to avoid the exclu-
`sivity of the Workers’ Compensation Act.” Cincinnati Ins. Cos. v. Kirk, 801 N.W.2d
`856, 863 (Iowa Ct. App. 2011).
`Plaintiffs also try to evade the IWCA’s exclusivity provision by alleging “vicar-
`ious liability” against Tyson based on the alleged “gross negligence” of Tyson employ-
`ees. But while a narrow exception exists under the IWCA for claims brought against
`coemployees for “wanton gross negligence,” there is no “wanton gross negli-
`gence” exception for employers, and Iowa courts have rejected attempts to create
`one: “The legislature is obviously aware of an employer’s blanket immunity [under
`the IWCA] and seems anxious to protect it. It could have created an exception for the
`gross negligence or intentional torts of an employer when it did so for fellow employ-
`ees but chose not to do so.” Harned v. Farmland Foods, Inc., 331 N.W.2d 98, 100 (Iowa
`1983).
`The Court need go no further. The claims against Tyson and the other defend-
`ants are barred under the IWCA, and the complaint should be dismissed on that basis
`alone.
`
`*
`*
`*
`Even if this Court had subject matter jurisdiction, however, dismissal of the
`claims against Tyson would still be appropriate for the following reasons.
`First, plausibility. Plaintiffs must allege “sufficient factual matter, accepted as
`true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
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`662, 678 (2009) (quotation omitted). Here, the complaint alleges that Tyson made
`various supposed misrepresentations regarding workplace conditions. But the reader
`is left to speculate how Tyson’s alleged statements or conduct caused Ms. Buljic, Mr.
`Garcia, and Mr. Ayala to contract COVID-19. The complaint does not allege any par-
`ticular incident of exposure. Nor does it attempt to rule out other potential causes of
`infection such as community spread. The complaint simply concludes that Ms. Buljic,
`Mr. Garcia, and Mr. Ayala became infected because they worked at Tyson.
`At least one federal district court recently dismissed a similar complaint,
`brought by COVID-infected passengers of Princess Cruise Lines, holding that while
`the passengers “allege they ‘contracted COVID-19 on Defendant’s ship,’ [the com-
`plaint] fails to contain sufficient allegations to plausibly support that conclusion.”
`Order at 8, Fish v. Princess Cruise Lines Ltd., No. CV 20-3894 DSF (JCx) (C.D. Cal.
`Aug. 21, 2020), ECF No. 26 (citing Iqbal, 556 U.S. at 678).
`The same analysis applies here. It is neither just nor plausible to assume that
`Ms. Buljic, Mr. Garcia, and Mr. Ayala must have contracted COVID-19 from work
`merely because they worked at Tyson, much less due to Tyson’s alleged actions. Fed-
`eral pleading standards require plausible allegations of causation. Those standards
`are especially important when applied to allegations of liability directed to a feder-
`ally-regulated food processing facility that has been designated as critical and essen-
`tial to the nation to continue to provide much-needed food during a national emer-
`gency.
`Second, lack of particularity. The complaint fails to properly plead a claim for
`misrepresentation. Rule 9(b) requires that “the complaint must plead the ‘who, what,
`where, when, and how’ of the alleged fraud.” Drobnak v. Andersen Corp., 561 F.3d
`778, 783 (8th Cir. 2009) (quoting U.S. ex rel. Joshi v. St. Luke’s Hosp., Inc., 441 F.3d
`552, 556 (8th Cir. 2006)). But the complaint provides no such detail, instead alleging
`merely that various statements were allegedly made by unidentified individuals, in
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`unknown ways, at unstated times and places. Indeed, the complaint itself acknowl-
`edges that gap: the key allegations that purport to identify the alleged misrepresen-
`tations are expressly qualified as “on information and belief.”
`Third, Plaintiffs’ claims are inconsistent with state and federal law. Even if
`the complaint were not barred by the IWCA and fatally lacking in specificity, it is not
`consistent with the Iowa “COVID-19 Response and Back-to-Business Limited Liabil-
`ity Act,” and fails to allege how its theory of liability could fit within the express
`preemption of the Federal Meat Inspection Act (“FMIA”), which preempts state-law
`requirements that are “in addition to” or “different than” the rigorous and extensive
`federal requirements under the FMIA. See 21 U.S.C. § 678; see also, e.g., 9 C.F.R.
`§ 416.5(c) (setting federal requirements under the FMIA regarding cleanliness, pro-
`tective attire, and “disease control”).
`Legal claims arising from the COVID-19 pandemic are not exempt from workers’
`compensation laws or well-established pleading standards. Plaintiffs’ claims should
`be brought before Iowa’s workers’ compensation commissioner, and for multiple other
`reasons, the complaint here should be dismissed.
`BACKGROUND
`Plaintiffs filed this lawsuit in the Iowa District Court for Black Hawk County in
`June 2020, naming twenty Defendants: Tyson Foods, Inc., Tyson Fresh Meats, Inc.,
`seven Tyson employees grouped together as the “Executive Defendants,” and eleven
`Tyson employees described as the “Supervisory Defendants.” [Dkt. 1-2, Ex. A] Tyson
`Foods and Tyson Fresh Meats timely removed to this Court based on federal officer
`and federal question jurisdiction. [Dkt. 1]
`The complaint alleges that Ms. Buljic, Mr. Garcia, and Mr. Ayala worked at the
`Waterloo facility; that they contracted COVID-19; and that they passed away from
`the disease. [Dkt. 1-2, Ex. A ¶¶ 2-10] The complaint alleges generally that Tyson’s
`alleged conduct “caused Plaintiffs’ injuries and were a substantial factor in causing
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`Plaintiffs’ injuries.” [Id. ¶ 107] But the complaint alleges no facts as to how, when, or
`why they contracted COVID-19, nor does the complaint include allegations that ad-
`dress or rule out contraction from other community sources of infection.
`The complaint asserts a single cause of action against Tyson (the “First Cause
`of Action”) for “Fraudulent Misrepresentation, Vicarious Liability and Punitive Dam-
`ages.” [Dkt. 1-2, Ex. A ¶¶ 99-113] The purported “misrepresentations” are alleged
`against Tyson “on information and belief.” [Id. ¶ 100 (“On information and belief,
`Defendant Tyson Foods made numerous false representations . . . .”); id. ¶ 101 (“On
`information and belief, Tyson Foods falsely represented . . . .”)]
`The complaint also alleges that Tyson is “vicariously liable” for the alleged con-
`duct of “all of its agents acting within the course and scope or their agency.” [Dkt. 1-
`2, Ex. A ¶ 108]
`
`I.
`
`ARGUMENT
`Plaintiffs’ claims are barred in this Court under the Iowa Workers’
`Compensation Act.
`The IWCA provides the exclusive remedy for workplace injury claims asserted
`against an employer. Iowa Code § 85.20(1). See also Bailey v. Batchelder, 576 N.W.2d
`334, 337-38 (Iowa 1998) (“The injured employee’s right to workers’ compensation is
`the employee’s exclusive remedy against the employer.”). “[A]n employer is always
`immune from common law tort liability pursuant to” the IWCA. Jensen v. Vander-
`leest, Nos. 9-369, 98-1950, 1999 WL 975879, *3 (Iowa Ct. App. Oct. 27, 1999).
`The IWCA applies when an employee sustains “personal injuries . . . arising
`out of and in the course of the employment.” Iowa Code § 85.3(1). Plaintiffs allege
`that Ms. Buljic, Mr. Garcia, and Mr. Ayala were “infected with COVID-19 at the Wa-
`terloo Facility” and that their deaths “arose out of and in the course of [their] employ-
`ment with Tyson.” [Dkt. 1-2, Ex. A ¶¶ 1, 4, 7, 10]
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`The IWCA therefore provides Plaintiffs’ “exclusive remedy” against an em-
`ployer for alleged workplace injuries under Iowa Code § 85.20. Walker v. Mlakar, 489
`N.W.2d 401, 403 (Iowa 1992) (IWCA “is an injured worker’s exclusive remedy against
`an employer or coemployee, thereby providing the employer and coemployee immun-
`ity from common law tort liability”).
`Under Iowa law, the proper venue for resolving Plaintiffs’ claims is the Iowa
`Division of Workers’ Compensation—not this Court. See Tigges v. City of Ames, 356
`N.W.2d 503, 509 (Iowa 1984) (affirming dismissal for lack of subject matter juris-
`diction where the IWCA’s exclusivity provision applies). This Court should dismiss
`the complaint.
`A.
`Plaintiffs’ attempts to avoid the IWCA are without merit.
`Plaintiffs try to plead around the exclusivity provisions of the IWCA by styling
`their claims against Tyson as ones for “Fraudulent Misrepresentation, Vicarious Li-
`ability and Punitive Damages.” That attempt should be rejected.
`End-runs around exclusivity are impermissible when the essence of the claim
`is injury at work. In Kloster v. Hormel Foods Corp., 612 N.W.2d 772, 774-75 (Iowa
`2000), an employee took a similarly “novel approach to bypass the provisos imposed
`by the workers’ compensation statute” by casting a workplace injury claim as one for
`tortious interference with medical care. The Supreme Court of Iowa set aside the
`plaintiffs’ attempt to reframe the claims to avoid the exclusivity provision of the
`IWCA, and instead focused on the “essence” of the allegations, holding that it was
`“readily apparent [the plaintiffs] had recourse under the [IWCA] to request [relief for
`their alleged injuries]” and that the IWCA provided their “exclusive remedy.” Id. at
`775. “If the essence of the wrong, then, is personal injury or death, and if the usual
`conditions of coverage are satisfied, the action must be barred by the exclusiveness
`clause no matter what its name or technical form may be.” See 9 Larson’s Workers’
`Compensation Law § 104.05.
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`That result follows from the fair compromise of no-fault workers’ compensation
`systems. As the Iowa Supreme Court has explained, the Iowa legislature enacted a
`robust exclusive-remedy provision for workplace injury claims as part of a workers’
`compensation system that “provide[s] an expeditious and automatic remedy to in-
`jured employees.” Suckow v. NEOWA FS, Inc., 445 N.W.2d 776, 778-79 (Iowa 1989)
`(citation omitted). That “comprehensive statutory scheme[]” reflects a carefully
`drawn compromise:
`Employees give up their common law rights of actions
`against employers. In return employers give up their com-
`mon law defenses and must pay employees for all work-re-
`lated injuries regardless of fault. . . . [W]orkers’ compensa-
`tion claimants have a way, other than through judicial pro-
`cess, to resolve their claims against employers.
`
`Id. (citation omitted). As discussed below, that balance would be upset if plaintiffs
`could avoid the IWCA through artful pleading. Harned, 331 N.W.2d 98 at 101 (dis-
`missing employees’ tort claims where they attempted to plead around the IWCA).
`
`1.
`
`Plaintiffs cannot circumvent the IWCA by recasting
`workplace injury claims as fraud.
`Iowa courts have repeatedly held that a plaintiff cannot circumvent the IWCA
`by recasting a workplace injury claim against an employer as a claim for misrepre-
`sentation or another intentional tort where—as here—the gist of the claim is for bod-
`ily injury. See, e.g., Nelson, 619 N.W.2d at 389 (affirming judgment for the employer:
`“A mere labeling of a claim for injuries [as an intentional tort] cannot avoid the ex-
`clusivity of workers’ compensation if the gist of the claim is for bodily injury.”). This
`is because “if the essence of the action is recovery for physical injury or death . . . the
`action should be barred even if it can be cast in the form of a normally non-physical
`tort.” Id. That includes fraud. “[W]here a claim is predicated on the same facts as the
`work injury itself, simply labeling it as fraud is not sufficient to avoid the exclusivity
`of the Workers’ Compensation Act.” See Cincinnati, 801 N.W.2d at 863.
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`The facts of Mielke v. Ashland are directly on point. 2005 WL 8157992, at *4.
`In Mielke, a plaintiff asserted claims against an employer for misrepresentation and
`other torts arising out of the alleged workplace death of an employee from leukemia.
`After removal to federal court, the employer moved to dismiss, arguing that the plain-
`tiffs’ sole remedy was limited to the IWCA. Id. at *1.
`The court agreed and dismissed the claim. Citing the Iowa Supreme Court’s
`decision in Nelson, the Mielke court held that where the plaintiff sued “for damages
`attributed to an occupational disease they do not dispute arose ‘out of’” her employ-
`ment, the “‘mere labeling of a claim for injuries’ as an intentional tort [i.e. misrepre-
`sentation] ‘cannot avoid the exclusivity of workers’ compensation if the gist of the
`claim is for bodily injury,’ or, in this case, occupational disease leading to death.” Id.
`at *4 (citations omitted).
`The same reasoning and result apply here. Although framed as a fraudulent
`misrepresentation claim, the “gist” of Plaintiffs’ claims are that Ms. Buljic, Mr. Gar-
`cia, and Mr. Ayala suffered a workplace injury while working at Tyson. Under the
`clear holdings of Nelson and Mielke, this Court is the wrong forum for Plaintiffs’
`fraudulent misrepresentation claim because it is foreclosed by the IWCA’s exclusivity
`provision. Iowa Code § 85.20.
`
`2.
`
`Plaintiffs cannot use vicarious liability to create a
`“wanton gross negligence” exception for employers.
`Plaintiffs also try to evade the IWCA’s exclusivity provision by alleging “vicar-
`ious liability” against Tyson based on the alleged “gross negligence” of “all of its
`agents acting within the course and scope of their agency.” [Dkt. 1-2, Ex. A ¶ 108] But
`while a narrow exception exists under the IWCA for claims brought against coemploy-
`ees for “wanton gross negligence,” there is no “wanton gross negligence” excep-
`tion for employers.
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`And Iowa courts have rejected attempts to expand the exception for coemploy-
`ees to include claims brought against an employer. “The legislature is obviously
`aware of an employer’s blanket immunity [under the IWCA] and seems anxious to
`protect it. It could have created an exception for the gross negligence or intentional
`torts of an employer when it did so for fellow employees but chose not to do so.”
`Harned, 331 N.W.2d at 100 (emphasis added); see also Suckow, 445 N.W.2d at 777-
`78 (observing that Section 85.20 “gives the employer-tortfeasor immunity from suit”
`but only “gives the co-employee tortfeasor limited immunity”); Ganka v. Clark, 941
`N.W.2d 356, 2019 WL 6358301, at *2 (Iowa Ct. App. 2019) (noting that the “narrow
`exception” in Iowa Code § 85.20 only “allows a co-employee to be sued for injuries
`‘caused by the coemployee’s gross negligence’”) (emphasis added) (alterations omit-
`ted).
`
`*
`*
`*
`The Court need go no further in its analysis. The claims against Tyson (and
`the other defendants) are barred because the IWCA requires those claims to be
`brought before the Iowa Division of Workers’ Compensation.
`II.
`Plaintiffs’ claims are inadequately pleaded.
`To avoid dismissal, a complaint must contain “sufficient factual matter, accepted
`as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
`(quotation omitted). To be plausible, “the facts alleged ‘must be enough to raise a right
`to relief above the speculative level.’” In re Pre-Filled Propane Tank Antitrust Litig.,
`893 F.3d 1047, 1056 (8th Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
`555 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content
`that allows the court to draw the reasonable inference that the defendant is liable for
`the misconduct alleged.” Iqbal, 556 U.S. at 678.
`Applying those standards is a two-step inquiry. First, the Court identifies “the
`allegations in the complaint that are not entitled to the assumption of truth.” Iqbal,
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`556 U.S. at 680. Significantly, the “assumption of truth” applicable to well-pleaded
`facts does not apply to “pleadings that . . . are no more than conclusions.” Id. at 679.
`Second, having identified the well-pleaded factual allegations, the Court consid-
`ers whether the remaining factual allegations are sufficient to “nudge” the Plaintiffs’
`claims “across the line from conceivable to plausible.” Id. at 680. This is a “context-
`specific task” and “requires the reviewing court to draw on its judicial experience and
`common sense,” id. at 679, in determining whether the court can “draw the reasona-
`ble inference that the defendant is liable for the misconduct alleged,” Kelly v. City of
`Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016) (quoting Iqbal, 556 U.S. 678).
`This standard is not met when the alleged harm could be explained by an alter-
`native theory that the complaint does not plead “sufficient factual matter” to rebut.
`Iqbal, 556 U.S. at 678; see also, e.g., Eclectic Props. E., LLC v. Marcus & Millichap
`Co., 751 F.3d 990, 998-99 (9th Cir. 2014) (dismissal required where allegations are
`“consistent with both [the Plaintiffs’] theory of liability and [an] innocent alterna-
`tive”). Simply put, more than a “sheer possibility” of liability is required to survive a
`motion to dismiss. Iqbal, 556 U.S. at 678.
`Here, Plaintiffs’ claims are not adequately pleaded because the complaint fails
`to allege fraud with particularity and fails to plausibly allege causation.
`A.
`The complaint fails to plead fraud with particularity.
`“[A] party must state with particularity the circumstances constituting fraud.”
`Fed. R. Civ. P. 9(b). “The complaint must allege ‘such matters as the time, place, and
`contents of false representations, as well as the identity of the person making the
`misrepresentation and what was obtained or given up thereby.’” Drobnak, 561 F.3d
`at 783 (citation omitted). Put otherwise, “the complaint must plead the ‘who, what,
`where, when, and how’ of the alleged fraud.” Id. (emphasis added) (quoting U.S. ex
`rel. Joshi, 441 F