throbber
IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF IOWA
`EASTERN DIVISION
`
`
`Case No. 6:20-cv-02055-KEM
`
`
`
`
`
`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,
`
`vs.
`
`Tyson Foods, Inc., Tyson Fresh Meats,
`Inc., John H. Tyson, Noel W. White,
`Dean Banks, Stephen R. Stouffer, Tom
`Brower, Tom Hart, Cody Brustkern,
`John Casey, and Bret Tapken,
`Defendants.
`
`
`
`RESPONSE TO PLAINTIFFS’ SECOND MOTION
`FOR LEAVE TO AMEND THE COMPLAINT
`
`Plaintiffs assert workplace injury claims arising from the deaths of their rela-
`tives—Sedika Buljic, Reberiano Leno Garcia, and Jose Luis Ayala—from COVID-19.
`That Ms. Buljic, Mr. Garcia, and Mr. Ayala are among the hundreds of thousands of
`Americans who have died of complications related to COVID-19 is a tragedy.
`This Court is the wrong forum to resolve Plaintiffs’ claims. The exclusive rem-
`edy provisions of the Iowa Workers’ Compensation Act (“IWCA”) direct that work-
`place injury claims must be adjudicated by the Iowa Division of Workers’ Compensa-
`tion, pursuant to the substantive and procedural rules of the Iowa workers’ compen-
`sation system.
`
`
`
`Case 6:20-cv-02055-LRR-KEM Document 43 Filed 12/08/20 Page 1 of 5
`
`

`

`Plaintiffs have repeatedly sought leave to amend their pleadings—dismissing
`existing defendants, adding new defendants, and now seeking to re-add a previously-
`dismissed defendant, along with other changes—in an apparent attempt to avoid the
`application of the IWCA to their claims. But nothing in any of the proposed amend-
`ments changes the fact that Plaintiffs’ workplace injury claims are governed by the
`workers compensation system.
`Defendants vigorously oppose the claims set forth in the Second Amended
`Complaint, just as they have vigorously opposed claims in the original Petition and
`the First Amended Complaint. Nevertheless, Defendants are mindful of the liberal
`standard for amendment of pleadings under the Federal Rules, and on that basis
`Defendants do not oppose Plaintiffs’ Second Motion to Amend.
`Defendants respectfully suggest, however, that the amendment process at
`some point must cease so that the Court can address the core question of the proper
`forum for Plaintiffs’ workplace injury claims.
`Defendants will oppose and challenge the sufficiency of the Second Amended
`Complaint under Rule 12 through a motion to dismiss. As set forth in Defendants
`Motion for Extension filed concurrently herewith, Defendants request that the dead-
`line to file their motion to dismiss be set for January 4, 2021—the same date recently
`set by the Court for Defendants to file a motion to dismiss the amended complaint in
`Fernandez v. Tyson Foods, Inc., et al. Case No. 6:20-CV-02079. [Dkt. 38]
`Procedural Background
`Plaintiffs’ original complaint was filed on June 25, 2020, against twenty sepa-
`rate individual and corporate defendants. [Dkt. 3] Defendants filed motions to dis-
`miss all claims against all defendants because Plaintiffs were asserting workplace
`injury claims that must be adjudicated by the Iowa Division of Workers’ Compensa-
`tion and also because the asserted claims were not adequately plead. [Dkt. 24, 25]
`Plaintiffs did not file a substantive response to those motions to dismiss. In-
`stead, Plaintiffs agreed that Defendants had asserted a number of “well-thought-out
`
`
`
`- 2 -
`Case 6:20-cv-02055-LRR-KEM Document 43 Filed 12/08/20 Page 2 of 5
`
`

`

`arguments,” (Dkt. 27), and on November 6, Plaintiffs sought leave to file a First
`Amended Complaint, in which Plaintiffs dismissed eleven defendants and added two
`new defendants. [Dkt. 35] On November 18, 2020, the court issued an Order granting
`the Motion for Leave to Amend the Complaint and setting a new deadline for Defend-
`ants to move to dismiss the First Amended Complaint. [Dkt. 39]
`In the meantime, the Court entered a Trial Scheduling Order on October 19,
`setting forth various discovery and other pretrial deadlines in anticipation of a Jan-
`uary 27, 2022 trial ready date. [Dkt. 30]
`Discussion
`Defendants vigorously dispute the claims set forth in the Second Amended
`Complaint. Defendants are mindful, however, of the liberal standard for granting
`leave to amend, and on that basis Defendants do not formally oppose Plaintiffs’ Sec-
`ond Motion for Leave to Amend the Complaint. See Fed. R. Civ. P. 15(2).
`Defendants advise the court that they intend to challenge the sufficiency of the
`claims and allegations of the Second Amended Complaints under Rule 12 through a
`motion to dismiss. Defendants believe the claims asserted in the Second Amended
`Complaint lack merit, that the new and unsubstantiated allegations set forth in that
`pleading do not cure the deficiencies of the original complaint or the First Amended
`Complaint, and that Plaintiffs’ workplace injury claims should be resolved by the
`workers’ compensation commission.
`
`
`
`
`
`
` /s/ Kevin J. Driscoll
`AT0002245
`Kevin J. Driscoll
`
`FINLEY LAW FIRM, P.C.
`699 Walnut Street, Suite 1700
`Des Moines, Iowa50309
`Telephone: 515-288-0145
`Facsimile: 515-288-2724
`Email: kdriscoll@finleylaw.com
`
`Christopher S. Coleman
`(Admitted pro hac vice)
`
`
`
`- 3 -
`Case 6:20-cv-02055-LRR-KEM Document 43 Filed 12/08/20 Page 3 of 5
`
`

`

`PERKINS COIE LLP
`2901 N. Central Avenue, Suite 2000
`Phoenix, Arizona 85012
`Telephone: 602.351.8000
`Facsimile: 602-648.7000
`Email: CColeman@perkinscoie.com
`
`Mary Gaston
`(Admitted pro hac vice)
`PERKINS COIE LLP
`1201 Third Avenue, Suite 4900
`Seattle, Washington 98101-3099
`Telephone: 206.359.8000
`Facsimile: 206.359.9000
`Email: MGaston@perkisncoie.com
`
`ATTORNEYS FOR DEFENDANTS
`
`
`
`
`
`
`
`- 4 -
`Case 6:20-cv-02055-LRR-KEM Document 43 Filed 12/08/20 Page 4 of 5
`
`

`

`CERTIFICATE OF SERVICE
`This is to certify that, on December 8, 2020, a true and correct copy of the fore-
`going document was served upon all counsel of record via the Court’s CM/ECF system
`as follows:
`
`Thomas P. Frerichs
`Frerichs Law Office, P.C.
`106 E. 4th Street, P. O. Box 328
`Waterloo, Iowa 50704-0328
`319.236.7204 / 319.236.7206 (fax)
`tfrerichs@frerichslaw.com
`
`John J. Rausch
`Rausch Law Firm, PLLC
`3909 University Ave., P. O. Box 905
`Waterloo, Iowa 50704-0905
`319.233.35557 / 319.233.3558 (fax)
`rauschlawfirm@dybb.com
`
`Mel C. Orchard, III
`G. Bryan Ulmer, III
`Gabriel Phillips
`The Spence Law Firm, LLC
`15 S. Jackson Street
`P. O. Box 548
`Jackson, Wyoming 83001
`307.337.1283 / 307.337.3835 (fax)
`orchard@spencelawyers.com
`ulmer@spencelawyers.com
`phillips@spencelawyers.com
`
`Attorneys for the Plaintiffs
`
`
`
`
`
`
`
` /s/ Kevin J. Driscoll
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`- 5 -
`Case 6:20-cv-02055-LRR-KEM Document 43 Filed 12/08/20 Page 5 of 5
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket