IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MISSOURI
`SOUTHWESTERN DIVISION
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`Case No. 3:21-cv-05087
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`CLIFTON REESE,
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`Plaintiff,
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`vs.
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`TYSON FOODS, INC.,
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`Defendant.
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`NOTICE OF REMOVAL
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`Pursuant to 28 U.S.C. §§ 1332, 1441, 1442, and 1446, Defendant Tyson Foods, Inc.
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`(“Tyson Foods”) hereby removes to the United States District Court for the Western District of
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`Missouri the action styled Clifton Reese v. Tyson Foods, Inc., Case No. 21BR-CC00091, currently
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`pending in the Circuit Court of Barry County, Missouri (the “Circuit Court Action”). Tyson Foods
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`removes this action based on diversity of citizenship because (1) the amount in controversy
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`exceeds $75,000, and (2) there is complete diversity of citizenship between Plaintiff and
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`Defendant. Alternatively, removal is also proper pursuant to federal officer removal under 28
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`U.S.C. § 1442(a)(1). In support of its Notice of Removal, Tyson Foods states the following:
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`I.
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`THE CIRCUIT COURT ACTION
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`1.
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`Plaintiff Clifton Reese commenced the Circuit Court Action on October 26, 2021,
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`in the Circuit Court of Barry County, Missouri, by filing his Petition for Injunctive and Declaratory
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`Relief in the case styled Clifton Reese v. Tyson Foods, Inc., Case No. 21BR-CC00091. Tyson
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`Foods was served with a copy of the Petition today, October 28, 2021.
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`2.
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`The Notice of Removal is timely filed pursuant to 28 U.S.C. § 1446(b) because it
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`is filed within thirty days of service.
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`3.
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`Pursuant to 28 U.S.C. § 1446(a), copies of all papers filed in the Circuit Court
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`Action are attached as Exhibit A, which includes any and all process, pleadings, and orders served
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`upon Tyson Foods. The Civil Cover Sheet is filed contemporaneously herewith.
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`4.
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`Plaintiff’s Petition purports to allege state law claims against Tyson Foods for
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`violation of public policy, assault, breach of contract, invasion of privacy, and religious
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`discrimination under the Missouri Human Rights Act.
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`5.
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`By removing this action, Tyson Foods does not waive any defenses or objections
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`that they may have.
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`II.
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`VENUE
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`6.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1446 as the United States
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`District Court for the Western District of Missouri geographically embraces the state court in Barry
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`County, Missouri, in which Plaintiff filed his state court action.
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`III. DIVERSITY JURISDICTION
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`7.
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`As discussed more fully below, this is a civil action over which this Court has
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`original jurisdiction because there is complete diversity between the parties, and the amount in
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`controversy exceeds $75,000.
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`A.
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`8.
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`Diversity of Citizenship Exists.
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`For diversity jurisdiction, there must be complete diversity between the parties,
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`which means no plaintiff may be a citizen of the same state as any defendant. 28 U.S.C.
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`§ 1332(a)(1). See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005); Junk v. Terminix Int’l Co.
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`628 F.3d 439, 445 (8th Cir. 2010).
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`9.
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`For diversity purposes, “the terms ‘domicile’ and ‘citizenship’ are synonymous”
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`and mean the State where an individual is physically present and intends to make his or her home
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`indefinitely. Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir. 1990). “The place where a [person] lives
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`is properly taken to be [the] domicile until facts adduced establish the contrary.” Dist. Of Columbia
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`v. Murphy, 314 U.S. 441, 455 (1941).
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`10.
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`In his Petition, Plaintiff states he is a resident of Barry County, Missouri. See
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`Petition (Exhibit A) at ¶ 7. Accordingly, Plaintiff is a Missouri citizen for purposes of diversity
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`jurisdiction.
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`11.
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`A corporation “shall be deemed to be a citizen of every State and foreign state by
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`which it has been incorporated and the state containing its principal place of business.” Brody v.
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`Ocwen Loan Servicing, LLC, No. 15-0740-CV-W-ODS, 2015 WL 9581784, at *1 (W.D. Mo. Dec.
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`30, 2015) (citing 28 U.S.C. § 1332(c)(1)).
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`12.
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`Tyson Foods is a Delaware corporation with its principal place of business in
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`Springdale, Arkansas. (Exhibit B, Declaration of Brett Worlow at ¶¶ 3–4). Thus, it is a citizen of
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`those two states, not Missouri, meaning complete diversity exists. See 28 U.S.C. § 1332(c)(1).
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`B.
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`13.
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`The Amount in Controversy Exceeds $75,000.
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`Diversity jurisdiction also requires that the amount in controversy “exceeds the sum
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`or value of $75,000.00, exclusive of interest and costs.” 28 U.S.C. § 1332(a).
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`14.
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`The standard for determining whether a plaintiff’s claim meets the amount in
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`controversy is “whether a fact finder might legally conclude” that the plaintiff’s damages are
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`greater than $75,000. Quinn v. Kimble, 228 F. Supp. 2d 1038, 1040 (E.D. Mo. 2002). Tyson Foods
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`need only establish by a preponderance of the evidence that Plaintiff could stand to recover over
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`$75,000 if he were to prevail, not that Plaintiff would definitely be awarded more than that amount.
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`See Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002); see also Schubert v. Auto Owners Ins. Co.,
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`649 F.3d 817, 822-23 (8th Cir. 2011). Once Tyson Foods has satisfied this burden, Plaintiff may
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`defeat federal jurisdiction only if it appears to “a legal certainty” that the claim is really for less
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`than the jurisdictional amount. Larkin v. Brown, 41 F.3d 387, 388 (8th Cir. 1994); Kopp, 280
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`F.3dat 885; see also Schubert, 649 F.3d at 822-23.
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`15.
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`Courts consider economic and non-economic compensatory damages, punitive
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`damages, and attorneys’ fees in determining whether the amount in controversy exceeds $75,000.
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`See Allison v. Sec. Benefit Life Ins. Co., 980 F.2d 1213, 1215 (8th Cir. 1992).
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`16.
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`Here, Plaintiff seeks “lost wages, lost bonus, loss in health coverage for himself
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`and his family, loss of benefits, and physical, emotional, and mental anguish as injuries.” See
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`Exhibit A, ¶ 149. He alleges (and swears under oath) that his current base salary is $113,907.75
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`per year, plus benefits. Id., ¶ 19. He claims he will be placed on a one-year unpaid leave of absence
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`and someone else will fill his position beginning November 1, 2021. Id., ¶¶ 3, 14, 33.
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`17.
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`Plaintiff also expressly seeks punitive damages “in the sum not less than
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`$100,000.00.” Id., ¶ 150.
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`18. With Plaintiff’s other claimed damages, specifically attorneys’ fees, the amount in
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`controversy easily exceeds $75,000. See Capitol Indem. Corp. v. Miles, 978 F.2d 437, 438 (8th
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`Cir. 1992) (considering attorneys’ fee claims in determining the amount in controversy); Pleasant
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`v. Noble Fin. Corp., 54 F. Supp. 3d 1071, 1080 (W.D. Mo. 2014) (“Defendant is correct that
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`punitive damages and statutory attorney fees may be considered in calculating the amount in
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`controversy”).
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`19.
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`In addition, Plaintiff seeks declaratory and injunctive relief. The Eighth Circuit has
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`found that the value of the declaratory or injunctive relief is based on “the value of the object of
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`the litigation.” James Neff Kramper Family Farm P'ship v. IBP, Inc., 393 F.3d 828, 831 (8th Cir.
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`2005). The value of the injunctive relief sought by Plaintiff in the Petition, if granted, would exceed
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`$75,000 because Plaintiff seeks to avoid “a forced leave of absence without pay” as well as
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`compensation and benefits for at least one year, Petition, ¶¶ 3, 33-35, when his annual salary
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`4
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`exceeds $100,000. See Burns v. Mass. Mut. Life Ins. Co., 820 F.2d 246, 248 (8th Cir. 1987) (“The
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`amount in controversy in a suit for injunctive relief is measured by the value to the plaintiff of the
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`right sought to be enforced.”).
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`20.
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`Considering the combination of Plaintiff’s own admissions and his claims for lost
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`wages, compensatory damages, punitive damages, attorneys’ fees, and declaratory/injunctive
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`relief, it is clear a fact finder might legally conclude Plaintiff’s damages exceed $75,000.
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`Accordingly, Tyson Foods has demonstrated that the amount in controversy exceeds $75,000.
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`IV.
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`FEDERAL OFFICER REMOVAL
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`21. While removal under 28 U.S.C. § 1332 is alone sufficient to remove this matter to
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`this Court, removal is also proper pursuant to federal officer removal, 28 U.S.C. § 1442(a)(1).
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`22.
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`Under 28 U.S.C. § 1442(a)(1), a civil action may be removed to federal court if the
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`action is asserted against a person acting under the direction of a federal officer:
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`A civil action . . . that is against or directed to any of the following may be removed
`. . . :
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`(1) The United States or any agency thereof or any officer (or any person acting
`under that officer) of the United States or of any agency thereof, in an official or
`individual capacity, for or relating to any act under color of such office.
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`28 U.S.C. § 1442(a)(1) (emphasis added).
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`23.
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`“Unlike the general removal statute, the federal officer removal statute is to be
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`‘broadly construed’ in favor of a federal forum.” Papp v. Fore-Kast Sales Co., 842 F.3d 805, 811
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`(3d Cir. 2016) (quoting In re Commonwealth’s Motion to Appoint Counsel. Against or Directed to
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`Def. Ass’n of Philadelphia, 790 F.3d 457, 466 (3d Cir. 2015), amended (June 16, 2015)).
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`24.
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`Federal officer removal is proper because: (1) Tyson Foods is a “person” within the
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`meaning of the statute who “acted under the direction of a federal officer”; (2) Tyson Foods’
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`actions were for or related to acts performed under color of federal office; and (3) Tyson Foods
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`5
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`raises a colorable federal defense. Jacks v. Meridian Res. Co., 701 F.3d 1224, 1230 (8th Cir. 2012).
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`25.
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`On April 28, 2020, President Donald J. Trump issued an executive order expressly
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`invoking his authority under the Defense Production Act (“DPA”), which instructed Tyson Foods
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`and other meat and poultry processing companies to stay open and continue operations, subject to
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`the supervision of the Secretary of Agriculture. Food Supply Chain Resources, 85 Fed. Reg. at
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`26,313, 2020 WL 2060381, at *1. The executive order states in relevant part:
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`It is important that processors of beef, pork, and poultry (“meat and poultry”) in the
`food supply chain continue operating and fulfilling orders to ensure a continued
`supply of protein for Americans.… [R]ecent actions in some States have led to the
`complete closure of some large processing facilities.
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`* * *
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`Such closures threaten the continued functioning of the national meat and poultry
`supply chain, undermining critical infrastructure during the national emergency.
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`* * *
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`[T]he Secretary of Agriculture shall take all appropriate action … to ensure that
`meat and poultry processors continue operations consistent with the guidance for
`their operations jointly issued by the CDC and OSHA.
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`Id. (emphasis added).
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`26.
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`On the same day, the Secretary of Agriculture declared that the CDC and OSHA
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`guidance would “help ensure employee safety to reopen plants or to continue to operate those still
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`open” and “ensure that these plants are allowed to operate to produce the meat protein that
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`Americans need.”1 The CDC and OSHA have also continually updated their guidance as new
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`information about the disease comes to light. See, e.g., CDC, Meat and Poultry Processing
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`Workers and Employers: Interim Guidance from CDC and the Occupational Safety and Health
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`Administration
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`(OSHA)
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`(updated
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`July
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`9,
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`2020),
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`available
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`at
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`1 Available at https://www.usda.gov/media/press-releases/2020/04/28/usda-implement-president-
`trumps-executive-order-meat-and-poultry (emphasis added).
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`https://stacks.cdc.gov/view/cdc/90395.2
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`27.
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`On May 18, 2020, the U.S. Food and Drug Administration (“FDA”) and the U.S.
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`Department of Agriculture (“USDA”) entered into a Memorandum of Understanding setting forth
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`the respective roles of each agency in utilizing the DPA to regulate food producers during the
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`COVID-19 pandemic, which reiterated that “actions by States or localities could lead to the closure
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`of food resource facilities”; such closures “could threaten the continued functioning of the national
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`food supply chain, undermining critical infrastructure during the national emergency”; and the
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`Department of Agriculture retained “exclusive delegated authority” under the DPA to issue orders
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`regarding domestic food producers.3
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`28.
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`Subsequently, on August 13, 2021, the Occupational Safety and Health
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`Administration (“OSHA”) has updated its Guidance on Mitigating and Preventing the Spread of
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`COVID-19 in the Workplace.4 In that guidance, OSHA stated that “vaccination is the key element
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`in a multi-layered approach to protect workers,” and that vaccines authorized by the U.S. Food
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`and Drug Administration are highly effective at protecting vaccinated people against symptomatic
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`and severe COVID-19 illness and death. According to the CDC, a growing body of evidence
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`suggests that fully vaccinated people are less likely to have symptomatic infection or transmit the
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`virus to others.” Id.
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`29.
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`In that same guidance, OSHA designated “meat, seafood, and poultry processing
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`2 The Centers for Disease Control’s (“CDC”) COVID-19 Workplace Guidance states that
`vaccination keeps the workforce healthy by preventing employees from getting COVID-19,
`reduces absences due to illness, improves productivity and improves morale. The CDC also states
`that vaccination is the best way to maximize protection from the Delta variant, illness,
`https://www.cdc.gov/coronavirus/2019-
`hospitalization,
`and
`death. Available
`at
`ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html
`3 Available at https://www.usda.gov/sites/default/files/documents/mou-between-fda-usda-
`dpa.pdf (emphasis added).
`4 Available at https://www.osha.gov/coronavirus/safework
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`settings” as “high-risk” workplaces for unvaccinated and otherwise at-risk workers, which requires
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`that extra precautions be taken to mitigate the spread of COVD-19 including spacing workers at
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`least six-feet apart (“physical distancing”) and enacting physical barriers to block any face-to-face
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`pathways in the facility. Id.
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`30.
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`Based on the foregoing, Tyson Foods is operating its facilities pursuant to the Food
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`Supply Chain Resources Executive Order relating to the DPA, as well as the Secretary of
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`Agriculture’s related orders. As such, Tyson Foods was “acting under the direction of a federal
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`officer,” 28 U.S.C. § 1442(a)(1) and “helping the Government to produce an item that it needs”
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`for the national defense under the DPA. Watson v. Philip Morris Companies, Inc., 551 U.S. 142,
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`147 (2007). Tyson Foods is also acting under the direct supervision of the Secretary of Agriculture
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`who was delegated power by the President to “take all appropriate action . . . to ensure that meat
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`and poultry processors continue operations consistent with the guidance for their operations jointly
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`issued by the CDC and OSHA.” 85 Fed. Reg. at 26,313, 2020 WL 2060381, at *1.
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`31.
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`Tyson Foods’ vaccination policy, which is consistent with CDC and OSHA
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`guidance to mitigate the spread of COVID-19 in the workplace and to prevent the slowing or
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`ceasing of operations at Tyson Foods’ facilities, was enacted under color of the President’s
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`Executive Order, the DPA, and the power delegated by the President to the Secretary of
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`Agriculture.
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`32.
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`Tyson Foods has colorable federal defenses to the claims in the complaint including
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`preemption under the DPA, the aforementioned Executive Order, and the Poultry Products
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`Inspection Act (“PPIA”), 28 U.S.C. § 467e.
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`V.
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`COMPLIANCE WITH PROCEDURAL REQUIREMENTS
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`33.
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`In accordance with 28 U.S.C. § 1446(d), Tyson Foods will promptly file a copy of
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`this Notice of Removal with the Clerk of the Circuit Court of Barry County, Missouri, and will
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`simultaneously provide written notice of the filing of this Notice of Removal to counsel for
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`Plaintiff as reflected by the Certificate of Service.
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`34.
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`Tyson Foods reserves the right to amend or supplement this Notice of Removal.
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`VI. CONCLUSION
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`WHEREFORE, having fulfilled all statutory requirements, Defendant Tyson Foods, Inc.
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`removes the above-captioned matter to this Court from the Circuit Court of Barry County,
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`Missouri, and request the Court assume full jurisdiction over the matter as provided by law and to
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`permit this action to proceed before it.
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`Respectfully submitted,
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`/s/ Curtis R. Summers
`Curtis R. Summers, Bar No. 58352
`Direct: 816.627.4427
`E-Fax: 816.817.2696
`csummers@littler.com
`Dylan M. Long, Bar No. 68217
`Direct: 816.627.4404
`E-Fax: 816.817.5316
`dlong@littler.com
`LITTLER MENDELSON P.C.
`1201 Walnut Street, Suite 1450
`Kansas City, MO 64106
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`ATTORNEYS FOR DEFENDANT
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 28, 2021, a true and correct copy of the above and
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`foregoing was filed via the Court’s CM/ECF system and by U.S. Mail, first class postage prepaid,
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`to the following:
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`John L. Young
`APPLEBY AND HEALY, P.C.
`119 North Second St.
`P.O. Box 158
`Ozark, MO 65721
`Phone: (417) 581-2411
`Fax:
`(417) 581-2447
`Email: jyoung@ApplebyHealy.com
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`ATTORNEY FOR PLAINTIFF
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`
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`/s/ Curtis R. Summers
`Attorney for Defendant
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