RURAL COMMUNITY WORKERS
`ALLIANCE and JANE DOE,1
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`Plaintiffs,
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`v.
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`IN THE UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF MISSOURI
`ST. JOSEPH DIVISION
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`ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
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`
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`No. 5:20-CV-06063-DGK
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`
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`SMITHFIELD FOODS, INC. and
`SMITHFIELD FRESH MEATS CORP.,
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`
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`Defendants.
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`
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`This lawsuit arises from Plaintiffs’ allegations that Defendant Smithfield Foods, Inc. and
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`its wholly owned subsidiary, Defendant Smithfield Fresh Meats Corporation (collectively,
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`“Smithfield”) have failed to adequately protect workers at its meat processing plant in Milan,
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`Missouri, (“the Plant” or “the Milan Plant”) from the virus that causes COVID-19. Now before
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`the Court are Plaintiffs’ Motion for a Temporary Restraining Order (“TRO”) and Preliminary
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`Injunction (Doc. 3), and Smithfield’s motion to dismiss and/or stay pursuant to the primary-
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`jurisdiction doctrine (Doc. 28).
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`After carefully reviewing the motions and the existing record, the Court holds that it
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`should decline to hear this matter pursuant to the primary-jurisdiction doctrine to allow the
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`Occupational Health and Safety Administration (“OSHA”) to consider the issues raised by this
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`case. But even if the Court did not apply the primary-jurisdiction doctrine, the Court would not
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`1 The Court notes that there is currently a motion pending to allow Jane Doe to proceed using a pseudonym (Doc.
`42). Given the Court’s dismissal of this action and the denial of injunctive relief, the Court finds that requiring
`Plaintiff to reveal her identity would serve no important purpose, especially given that another named plaintiff
`appears in this case. The issues presently before the Court are—for the most part—purely legal, and the majority of
`Plaintiff’s allegations are not individualized. Thus, the public’s interest in Plaintiff’s identity and the prejudice to
`Smithfield in allowing Plaintiff to proceed anonymously for purposes of deciding the instant motions is minimal.
`Plaintiff Doe may therefore use a pseudonym for purposes of the motions presently before this Court. This Court
`reserves judgment on her ability to do so should this case proceed to further stages of litigation.
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`issue a preliminary injunction because Plaintiffs have not met their burden of proving that the
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`extraordinary remedy of an affirmative injunction is justified. Smithfield’s motion is
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`GRANTED, and the case is DISMISSED WITHOUT PREJUDICE.
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`Background
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`The Background section of this order is arranged in chronological order. Although
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`regrettably lengthy, it details how the regulatory environment in which meat-processing plants
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`operate is constantly changing during this unique national emergency.
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`In late 2019, a new coronavirus emerged named severe acute respiratory syndrome
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`coronavirus 2 (SARS-CoV-2).2 This virus causes coronavirus disease 2019 (COVID-19), a
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`respiratory illness that can cause serious health problems, including death.3 SARS-CoV-2 is
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`highly contagious; it appears to spread from person to person through respiratory droplets
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`produced when an infectious person coughs, sneezes, or talks, and the virus can be spread by
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`presymptomatic, or even asymptomatic, individuals.4
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`A global pandemic ensued, and the virus and COVID-19 reached the United States in
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`early 2020. On March 13, 2020, the President declared a national emergency concerning
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`COVID-19. That same day, Missouri’s governor also declared a state emergency, and on April
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`3, the Missouri Department of Health and Senior Services issued a stay-at-home order that
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`mandated all individuals abide by social-distancing requirements and closed all nonessential
`
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`2 Ctrs. for Disease Control and Prev. & Occ. Safety and Health Admin., Meat and Poultry Processing Workers and
`Employers,
`https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/meat-poultry-processing-
`workers-employers.html (April 26, 2020).
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`2
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` Id.
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` Id.
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`businesses in Missouri through May 4.5 The stay-at-home order defines essential businesses in
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`accordance with guidance from the U.S. Department of Homeland Security, Cybersecurity &
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`Infrastructure Security Agency (“Homeland Security”), which identified livestock-slaughter
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`facilities, including the Plant and its operations, as “critical infrastructure.”6 On April 9, the
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`Centers for Disease Control (“CDC”) published Interim Guidance for Businesses and Employers
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`to Plan and Respond to Coronavirus Disease 2019 (COVID-19), which outlined several policies
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`and procedures employers should implement to help prevent workplace exposure and community
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`spread of the virus.
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`On April 22, OSHA sent Smithfield a “Rapid Response Investigation” requesting
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`information regarding its COVID-19 work practices and infection at the Milan Plant, giving
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`Smithfield seven days to respond. As part of its inquiry, OSHA requested information about
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`Smithfield’s COVID-19 practices including what, if any, personal protective equipment has been
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`given to its workers, what engineering controls have been implemented, what contact tracing
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`methods have been employed, and what policies have been changed or implemented in light of
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`the pandemic (Doc. 29-2). Smithfield responded on April 29 (Doc. 41).
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`The next day, on April 23, Plaintiffs Jane Doe and the Rural Community Workers
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`Alliance (“RCWA”) filed suit. They allege Smithfield is not taking adequate steps to prevent
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`transmission of the virus at its Plant, thereby endangering workers and members of the
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`surrounding community. According to her declaration, Doe is a current Smithfield employee
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`who has worked at its Milan Plant for at least five years. She claims she currently works on the
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`5 Mo. Dep’t of Health & Senior Servs., Stay at Home Order, https://governor.mo.gov/priorities/stay-home-order
`(Apr. 3, 2020).
`6 U.S. Dep’t of Homeland Sec., Cybersec. & Infrastructure Sec. Agency, Guidance on the Essential Critical
`Infrastructure
`Workforce,
`https://www.cisa.gov/sites/default/files/publications/Version_3.0_CISA_Guidance_on_Essential_Critical_Infrastruc
`ture_Workers_3.pdf (April 17, 2020).
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`3
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`“cut floor” where animals are broken down into products and packaged.
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`The RCWA is a Missouri non-profit advocacy group whose members consist exclusively
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`of workers in Northern Missouri. Several members of RCWA’s current leadership council work
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`at the Plant, and sixty to seventy workers who attend its meetings work at the Plant, including
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`Jane Doe.
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`Defendant Smithfield is one of the largest meat-processing companies in the world, with
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`meat-processing plants all over the United States, including in Milan, Missouri. Several of its
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`meat-processing plants in the United States have closed recently due to outbreaks of COVID-19
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`among its workers.
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`The Complaint (Doc. 1) alleges that several meat-processing plants in this country owned
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`and operated by Smithfield have become major COVID-19 “hot spots.” It also alleges that in
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`direct contravention of CDC guidelines, Smithfield has not implemented certain precautions to
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`keep its workers and the Milan community safe from the virus. Such measures include keeping
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`adequate distance between workers, prohibiting workers from taking a break to wash their hands
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`or face, preventing workers from covering their faces if they need to cough or sneeze,
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`implementing a sick-leave policy that penalizes workers for missing work even if they are
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`exhibiting COVID-19 symptoms, and failing to implement plans for testing and contact tracing.
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`The Complaint brings state-law claims for public nuisance and breach of duty to provide
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`a safe workplace. Plaintiffs are not seeking monetary damages, only declaratory judgments
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`stating that: (1) Smithfield’s practices at the Plant constitute a public nuisance; and (2)
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`Smithfield has breached its duty to provide a safe workplace.
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`The same day Plaintiffs filed suit, they also moved for a temporary restraining order and
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`preliminary injunction (Doc. 3), seeking to force Smithfield to: provide masks; ensure social
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`distancing; give employees an opportunity to wash their hands while on the line; provide tissues;
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`change its leave policy to discourage individuals to show up to work when they have symptoms
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`of the virus; give workers access to testing; develop a contact-tracing policy; and allow their
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`expert to tour the Plant. Attached to the motion were declarations from: (1) Jane Doe, who
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`described working conditions at the Plant and stated she was afraid for health and safety, as well
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`as the health and safety of the Milan community, because of what she considers inadequate
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`safety procedures at the Plant; (2) RCWA’s Executive Director, Alex Fuentes; (3) a senior
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`lobbyist with the non-profit organization Food & Water Watch (“FWW”), Anthony Corbo; (4) a
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`lawyer, Thomas Fritzsche, who has interviewed a number of Alabama poultry-plant workers
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`about working conditions and authored a 2013 report for the Southern Poverty Law Center about
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`modern industrial slaughterhouse workers; and (5) an occupational-medicine specialist,
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`Dr. Robert Harrison, who works as Clinical Professor of Medicine at the University of
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`California, and also serves the California Department of Public Health.
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`On April 26, the Court set a videoconference hearing on the preliminary injunction
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`motion for April 30. That same day, the CDC and OSHA issued Meat and Poultry Processing
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`Workers and Employers – Interim Guidance (“the Joint Guidance”), which provided
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`supplemental guidance to meat-processing plants concerning COVID-19.7 The Joint Guidance
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`states that to reduce the risk of transmission among employees, employers at meat-processing
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`facilities should, where “feasible,” implement engineering controls, such as staggering shifts and
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`breaks, requiring workers to stay six-feet apart, and/or erecting physical barriers; place
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`handwashing or hand-sanitizing stations in multiple locations and encourage hand hygiene; give
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`workers additional short breaks to wash hands; provide tissues; and allow workers to take breaks
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`7 Ctrs. for Disease Control and Prev. & Occ. Safety and Health Admin., Meat and Poultry Processing Workers and
`Employers,
`https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/meat-poultry-processing-
`workers-employers.html (Apr. 26, 2020).
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`in alternative areas to ensure social distancing. It also recommends employers provide personal
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`protective equipment for workers to use during their shift and increase the frequency of
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`sanitization in work and common spaces. It states employers should educate employees on
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`measures they can take to decrease the risk of spreading the virus and provides a specific list of
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`measures employers should take to promote social distancing, such as providing visual cues on
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`floors, as reminders for social distancing. It encourages employers to screen workers for
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`COVID-19 by implementing temperature checks prior to entering the workplace and sending
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`home workers who appear to have symptoms (e.g., cough, fever, or shortness of breath), and
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`monitor workers’ contacts so they can alert anyone who may have been exposed to the virus.
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`Finally, it recommends employers review leave and incentive policies so as to not penalize
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`workers for taking sick leave if they contract COVID-19.
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`On April 27, Smithfield filed a motion to dismiss this case pursuant to the
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`primary-jurisdiction doctrine, arguing this Court should defer to OSHA in this case. The next
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`day—April 28—the President signed an executive order (“the Executive Order”) under
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`§ 4511(b) of the Defense Production Act (“DPA”), 50 U.S.C. § 2061 et seq., delegating authority
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`to the Secretary of Agriculture to take all appropriate action “to ensure that meat and poultry
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`processors continue operations consistent with the guidance for their operations jointly issued
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`by” the CDC and OSHA.8
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`On April 29, Smithfield made several filings, including a supplemental brief to its motion
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`to dismiss, which alleged that pursuant to the Executive Order, the United States Department of
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`Agriculture (“USDA”) now had jurisdiction over this case. It also submitted its Suggestions in
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`8 Exec. Order on Delegating Authority Under the DPA with Respect to Food Supply Chain Resources During the
`National Emergency Caused by
`the Outbreak of COVID-19, https://www.whitehouse.gov/presidential-
`actions/executive-order-delegating-authority-dpa-respect-food-supply-chain-resources-national-emergency-caused-
`outbreak-covid-19/ (Apr. 28, 2020).
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`Opposition (Doc. 32) to the preliminary injunction motion. Attached to its brief as exhibit A
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`(Doc. 32-1) is a declaration from the Plant’s general manager, Tim Messman, along with pictures
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`of the Plant and copies of the Plant’s policies and procedures related to COVID-19. Exhibit B
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`(Doc. 32-2) is a declaration from John Henshaw, the head of OSHA from 2001 to 2003.
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`Later that same day, Plaintiffs’ filed their suggestions in opposition (Doc. 35) to
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`Smithfield’s motion to dismiss. Included in it is a declaration from Dr. Melissa Perry (Doc.
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`35-2), a professor of environmental health at George Washington University.
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`On April 30, the Court held a hearing on the motion via teleconferencing. The Court
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`offered the parties an opportunity to introduce evidence, including witness testimony, but both
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`parties elected to stand on the existing record. The parties then argued their respective positions.
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`After the hearing, the parties filed supplemental briefs. Attached to Smithfield’s brief
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`(Doc. 46) is a supplemental declaration from Smithfield’s plant manager, clarifying Smithfield’s
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`leave policy and updating the Court on additional safety changes at the Plant.
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`Plaintiffs concede that Smithfield implemented new policies and procedures after this
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`lawsuit was filed and have narrowed their requested injunctive relief to direct Smithfield to:
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`(1) make all reasonable changes to its “production practices,” including
`potentially lowering its line speeds, to place as many workers as possible at
`least six feet apart; (2) provide reasonable additional breaks to allow
`workers to care for their personal hygiene without penalty, including blowing
`their noses, using tissues, and hand washing; and (3) ensure that its policies
`do not require workers to come to the Plant to obtain COVID-19-related
`sick leave and take all reasonable steps to communicate that policy clearly
`to workers.
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`(Doc. 48 at 10). Plaintiffs characterize their requested relief as compliance with the Joint
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`Guidance.
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`Findings of Fact
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`The Court gives the various declarations submitted by the parties the following
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`evidentiary weight.9
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`The Court gives Jane Doe’s declaration limited weight. While she has personal
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`knowledge of conditions in those parts of the Plant in which she works, it is unclear exactly what
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`part of the “cutting floor” she works in, and whether she can see all that she claims to see from
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`this area. Further, it appears that some of the information in her declaration is no longer accurate
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`due to recent changes in the Plant’s policies and procedures. For example, although her
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`declaration may be correct that Smithfield initially told workers they would receive only one
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`mask per week, this policy has been superseded. As discussed below, workers are now given
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`masks every day. Finally, because her identify is unknown, there is no way to determine,
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`through the adversarial process or otherwise, whether Doe has some bias against Smithfield that
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`could lead her to misrepresent or exaggerate conditions at the Plant. The Court notes that at least
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`one of her statements—that Smithfield has increased the line speed at the Plant during the
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`pandemic—is contradicted by other, more persuasive evidence.
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`Mr. Fuentes’ declaration concerning working conditions at the Plant are even less reliable
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`than Jane Doe’s, and so the Court gives them less weight. Mr. Fuentes has no personal
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`knowledge of conditions at the Plant because he has never set foot in it. His understanding is
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`based on hearsay from unidentified employees whose statements to him, even if accurately
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`relayed by Mr. Fuentes, were not made under penalty of perjury. That said, the Court finds the
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`portions of his declaration concerning RCWA’s membership and activities are credible.
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`The Court finds the declarations of Messrs. Corbo, Fritzsche, and Harrison are based on
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`some relevant knowledge, education, and experience concerning working conditions in
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`American meat-processing plants generally, and so they possess some limited insight into what
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`9 Smithfield filed a motion to strike Plaintiffs’ five declarations attached to the motion for a temporary restraining
`order and/or preliminary injunction (Doc. 34). The Court denies the motion, since, in considering these motions, the
`issues it complains of go to the weight of the evidence rather than its admissibility.
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`steps could be taken to prevent the spread of the SARS-CoV-2 virus in a generic American
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`meat-processing facility. Because they are unfamiliar with specific working conditions at the
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`Plant, however, their declarations provide limited help in determining whether Smithfield’s
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`policies and procedure at the Plant are sufficient to stem transmission of the virus.
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`Finally, the Court turns to the declaration of Dr. Melissa J. Perry, Professor and Chair of
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`Environmental and Occupational Health at the Milken Institute School of Public Health of the
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`George Washington University. Dr. Perry credentials are excellent: She is a past President of the
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`American College of Epidemiology and a past chair of the Board of Scientific Counselors for the
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`CDC. She has also served as a member of the National Institute for Occupational Safety and
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`Health research grant-review panel. She has studied meat-processing facilities since 2004 and
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`has published six peer-reviewed-journal articles on work health and safety at meat-processing
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`facilities. As part of that work, she has visited four meat-processing plants and spoken with
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`engineers regarding the organizational structure of processing plants and how they can be
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`redesigned to further worker health and safety.
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`Dr. Perry opines that meat-processing plants can allow workers to stand six feet apart if
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`they reduce production line speed, and that, if they do not space production line workers six feet
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`apart, the plants will “inevitably” have a COVID-19 outbreak. She contends slowing the
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`production line is the only way the plant will be able to continue meat production without an
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`outbreak. She also endorses the other requests Plaintiffs make, such as for more rest breaks and
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`paid leave, as “absolutely necessary” so the Plant can continue operating.
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`This Court has respect for Dr. Perry’s opinion but finds it of limited value in this case.
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`While this Court agrees that slowing down line speed may be beneficial for workers and allow
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`more opportunities for social distancing, the Court found nothing in the Joint Guidance
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`recommending a decrease in line speed. To that point, she provides no specific opinion
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`regarding whether the Milan Plant is currently in compliance with the Joint Guidance, and there
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`is no evidence that Dr. Perry reviewed the policies and procedures at the Milan Plant in forming
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`her opinion. Accordingly, the Court gives little weight to her opinion that unless the production
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`line speed is slowed and workers spread six feet apart, spread of the virus through the Plant is
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`“inevitable” and it “will be forced to shutter.” This assertion appears to be more of a good-faith
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`speculation than an evidenced-based conclusion.
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`The Court gives more weight to the declarations provided by Smithfield. The statements
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`made by Mr. Messman, the Plant’s general plant manager, are almost all based on his personal
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`knowledge. He possesses the most recent information concerning working conditions at the
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`Plant, and he appears to be a reliable source of information about Smithfield’s policies and
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`procedures there.
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`The Court gives considerable weight to the declaration of John Henshaw, Smithfield’s
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`expert witness. After reviewing Smithfield’s written policies and procedures at the Plant, the
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`general manager’s declaration, the pictures, and the declarations in Plaintiffs’ motion,
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`Mr. Henshaw opined that Smithfield’s current policies and procedures, if followed, were
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`consistent with the Joint Guidance as of April 29, 2020. Although the Court is aware that he is a
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`retained expert witness whose assumptions and conclusions have not been tested by
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`cross-examination, his opinion is measured, qualified, and grounded in the facts at the Milan
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`Plant.
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`With the credibility determinations in mind, the Court makes the following findings of
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`fact concerning current the Plant’s working conditions and Smithfield’s COVID-19 policies and
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`procedures.
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`Before entering the Plant, Smithfield requires all employees to undergo thermal
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`screening. If employees exhibit one primary symptom or two secondary symptoms of
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`COVID-19,10 Smithfield provides them with instructions for next steps, including directions to
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`quarantine and call their physician for guidance, and sends the employee home for fourteen days
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`of paid leave or until the individual receives a negative COVID-19 test result. Employees with
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`underlying health concerns—verified by a doctor—that place them at a higher risk of COVID-19
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`are given fourteen days of paid leave and then are shifted to short-term disability leave.
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`While quarantining as a result of COVID-19 symptoms, Smithfield requires employees to
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`complete a questionnaire that in part entails naming all other employees they have closely
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`contacted within the two days before experiencing symptoms. If the employee tests positive for
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`COVID-19, Smithfield notifies and screens the close contacts. As of April 29, 2020, thirteen
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`employees had been tested for COVID-19. None were positive.
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`If employees miss work as a result of COVID-related symptoms, Smithfield does not
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`penalize them. They do not receive attendance points and remain eligible for Smithfield’s
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`Responsibility Bonus ($500), regardless of whether individuals provide a doctor’s or nurse’s
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`note. Moreover, Smithfield has expanded its employee benefits by eliminating co-pays for
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`COVID-related testing and treatment.
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`To ensure that those inside the Plant are complying with Smithfield’s COVID-19 safety
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`procedures and policies, Smithfield has assigned both a nurse and a health-and-safety clerk to
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`perform checks throughout the Plant. Smithfield has communicated these procedures and
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`policies to its employees by several different media, including on televisions and signs at the
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`Plant, through the Beekeeper communications app, and through the Textcaster mass
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`10 Primary symptoms include fever, persistent dry cough, and shortness of breath, while secondary symptoms
`include chills, repeated shaking with chills, muscle pain/extreme fatigue, headache, sore throat, and/or loss of taste
`or smell (Doc. 46-2 at 8).
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`text-messaging tool. Signs at the Plant relay the information in English, Spanish, and French,
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`while the Beekeeper and Textcaster communications are available in the employee’s language of
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`choice. Interpreters are also available at the Plant to assist with these communications.
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`The Plant provides workers with an ear-looped face mask upon entry to the Plant each
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`day, and if a mask breaks or becomes soiled, it provides a new one. Smithfield now requires all
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`workers at the Plant to wear a mask at all times other than during meals and in certain offices
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`where employees are spaced six feet apart. These masks prevent the spread of germs if an
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`employee sneezes or coughs while on the line, reducing the need for tissues to reduce the spread
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`of COVID-19. Additionally, Smithfield requires employees on the production floor to wear
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`nitrile gloves and a plastic face shield.
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`As Smithfield concedes, it does not provide tissues to employees. It cannot provide
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`tissues to individuals working on the production line because doing so would violate health
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`standards set by the USDA. Thus, one of Plaintiff’s original complaints cannot be remedied.
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`Smithfield could, however, provide tissues for employees to wipe their nose while on breaks, but
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`the record does not support that employees are banned from bringing their own tissues or other
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`hygienic wipes to use while on breaks.
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`As for Plaintiffs’ claim that Smithfield does not allow employees to wash their hands
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`without penalty, the Court finds that Smithfield policies and procedures are reasonable under the
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`circumstances. Due to the nature of the meat-processing business, employees must wear gloves
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`on the production line. When workers leave the line for a break, they remove their gloves and
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`sanitize their hands before entering common areas. They must also wash their hands and put on
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`gloves before returning to the line. Smithfield currently administers hand sanitizer to employees
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`every thirty minutes to use on their gloves and has added approximately 110 hand-sanitizing
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`stations throughout the Plant. Smithfield also expects a shipment of small hand-sanitizer bottles
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`soon, which it will make available to employees for personal use. In the meantime, the Plant has
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`invited employees to bring in personal bottles they may refill using the company supply. Thus,
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`the need for continued hand washing is unnecessary because any contamination that may occur
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`on the line is contained by the required use of gloves.
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`Moreover, Smithfield has also enhanced cleaning and disinfection of the Plant’s
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`frequently touched surfaces in common areas using cleaning solutions identified by the CDC for
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`use against the virus. These cleanings are performed as often as every two hours throughout the
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`workday. Additional deep cleanings occur over the weekends, and Smithfield is working to
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`implement use of fogging/misting disinfectants where possible.
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`Finally, the Court turns to the steps Smithfield has taken steps to facilitate social
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`distancing at the Plant. Smithfield has staggered workday start times, as well as lunch and break
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`times, to avoid large numbers of workers congregating in break rooms or around time clocks.
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`Smithfield is currently working to secure a wireless means for employees to clock in and out of
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`their shifts to minimize crowding. In the meantime, it has expanded the number of available
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`clocks for employees to use and will implement a grace period for workers to clock in and out of
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`their shifts, all increasing the ability of workers to maintain social distance.
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`Smithfield has erected two large tents and three carport structures on the Plant lawn and
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`placed tables and chairs underneath each so that workers have more space to eat while on breaks.
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`The Plant has also installed plastic barriers on eating tables that separate employees from those
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`sitting beside and across from them. Tables are sanitized after one employee leaves and before
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`another sits down.
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`Smithfield has also reduced the number of hogs harvested each day and sends some
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`employees home before lunch. This requires fewer employees to be at the Plant, helping to
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`minimize crowding in the cafeteria and other areas. However, these policies reduce the number
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`of hours worked by the affected employees, thereby decreasing their weekly pay. To ease the
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`resulting financial burden on employees, Smithfield has temporarily increased pay by $5/hour,
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`and such pay is available to any employee who takes an approved leave as a result of
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`COVID-related symptoms. Smithfield has also installed clear plastic barriers along the Plant
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`production line to separate employees working across from each other and employees working
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`side by side.
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`The primary-jurisdiction doctrine applies.11
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`Discussion
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`Before reaching the merits of Plaintiffs’ request for a preliminary injunction, the Court
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`I.
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`
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`must determine whether it should dismiss or stay this case pursuant to the primary-jurisdiction
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`doctrine. “Primary jurisdiction is a common-law doctrine that is utilized to coordinate judicial
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`and administrative decision making.” Access Telecomms. v. Sw. Bell Tel. Co., 137 F.3d 605, 608
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`(8th Cir. 1998) (citation omitted). “The doctrine allows a district court to refer a matter to the
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`appropriate administrative agency for ruling in the first instance, even when the matter is initially
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`cognizable by the district court.” Id. (citation omitted). “There exists no fixed formula for
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`determining whether to apply the doctrine of primary jurisdiction.” Id. (citing United States v.
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`W. Pac. R.R. Co., 352 U.S. 59, 64 (1956)). Instead, courts must consider in each case “whether
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`the reasons for the doctrine are present and whether applying the doctrine will aid the purposes
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`11 Although Smithfield previously argued Burford abstention also applied here, it conceded during the preliminary-
`injunction hearing that that argument no longer applies due to the President’s Executive Order. Accordingly, the
`Court does not address it. Because this Court finds the primary jurisdiction doctrine applies, it does not address
`Smithfield’s preemption arguments, which were asserted after the preliminary-injunction hearing.
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`
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`14
`Case 5:20-cv-06063-DGK Document 51 Filed 05/05/20 Page 14 of 24
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`

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`for which the doctrine was created.” Id. (citation omitted). In undertaking this analysis, a court
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`must be mindful that the primary-jurisdiction doctrine “is to be invoked sparingly, as it often
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`results in added expense and delay.” Alpharma, Inc. v. Pennfield Oil Co., 411 F.3d 934, 938 (8th
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`Cir. 2005). “Once a district court decides to refer an issue or claim to an administrative agency
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`under the doctrine of primary jurisdiction, it may either dismiss or stay the action.” Chlorine
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`Inst., Inc. v. Soo Line R.R., 792 F.3d 903, 913 (8th Cir. 2015).
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`There are two primary reasons courts apply the primary-jurisdiction doctrine. First, “to
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`obtain the benefit of an agency’s expertise and experience . . . ‘in cases raising issues of fact not
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`within the conventional experience of judges or cases requiring the exercise of administrative
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`discretion. . . .’” Access Telecomms., 137 F.3d at 608 (noting “‘agencies created by Congress for
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`regulating the subject matter should not be passed over’”) (quoting Far E. Conference v. United
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`States, 342 U.S. 570, 574 (1952)). Second, “to promote uniformity and consistency within the
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`particular field of regulation.” Id. (citation omitted). Thus, in deciding whether to apply the
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`doctrine, courts focus on two questions: (1) “whether the issues raised in the case ‘have been
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`placed within the special competence of an administrative body,’” and (2) whether the court’s
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`disposition of the case could lead to inconsistent regulation of businesses in the same industry.
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`Sprint Spectrum L.P. v. AT&T Corp., 168 F. Supp. 2d 1095, 1098 (W.D. Mo. 2001) (quoting
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`United States v. W. Pac. R.R. Co., 352 U.S. at 64). In this case, the answer to both questions is
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`yes.
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`Plaintiffs allege that because the Plant is not abiding by the Joint Guidance, it constitutes
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`a public nuisance and has created an unreasonab