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.
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`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
`
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`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)
`
`
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`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
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`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
`
`
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