4:20-cv-03141-JMG-CRZ Doc # 63 Filed: 03/01/21 Page 1 of 10 - Page ID # 1094
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEBRASKA
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`ALMA, et al.,
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`Plaintiffs,
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`vs.
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`NOAH'S ARK PROCESSORS, LLC,
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`Defendant.
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`4:20-CV-3141
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`MEMORANDUM AND ORDER
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`The defendant in this case, Noah's Ark Processors, LLC, operates a meat
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`processing facility in Hastings, Nebraska. See filing 1 at 2, 4. According to the
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`plaintiffs, Noah's Ark has not taken measures needed to protect its employees
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`from COVID-19. See filing 1. But the plaintiffs are not employees of Noah's
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`Ark—instead, they're former employees, along with a local doctor. See filing 1
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`at 3-5. While the Court does not question their sincere concern for the well-
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`being of Noah's Ark's employees, the Court finds that they lack standing to
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`assert the claims they have alleged, and will dismiss their complaint.
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`BACKGROUND
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`There are four plaintiffs in this case, and three of them are proceeding
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`under pseudonyms. See filing 20. Alma lives in Grand Island, Nebraska and
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`worked for Noah's Ark until fall 2020, "when she quit because of poor working
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`conditions." Filing 1 at 4. Isabel and Antonio also live in Grand Island and
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`worked at Noah's Ark until last year. Filing 1 at 4-5. All three former
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`employees "remain[] in close touch with workers at the plant." Filing 1 at 4-5.
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`The named plaintiff, Dr. Daniel J. Leonard, is a doctor in Hastings who
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`practices pediatrics. Filing 1 at 5. He treats the children of meat processing
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`facility workers, and people afflicted with COVID-19. Filing 1 at 5.
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`The plaintiffs sued Noah's Ark late last year—after all of the former
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`employees had left their employment with Noah's Ark—alleging that Noah's
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`Ark was not taking needed precautions to protect its workforce and the
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`community at large from COVID-19, and that Adams County and Hall County
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`had COVID-19 outbreaks more serious than neighboring counties.1 See filing
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`1. They asserted state-law claims for public nuisance and negligence and a
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`federal claim purporting to arise from the Families First Coronavirus Response
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`Act, Pub. L. No. 116-127, 134 Stat 178-220 (2020). They also sought a
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`preliminary injunction ordering Noah's Ark to take the safety measures they
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`thought necessary. See filing 17. In response, Noah's Ark moved to dismiss the
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`plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b) for, among other things,
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`lack of standing.
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`STANDARD OF REVIEW
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`A motion pursuant to Rule 12(b)(1) challenges whether the court has
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`subject matter jurisdiction. Rule 12(b)(1) motions can be decided in three ways:
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`at the pleading stage, like a Rule 12(b)(6) motion; on undisputed facts, like a
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`summary judgment motion; and on disputed facts. Jessie v. Potter, 516 F.3d
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`709, 712 (8th Cir. 2008).
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`A court deciding a motion under Rule 12(b)(1) must distinguish between
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`a "facial attack"’ and a "factual attack." Branson Label, Inc. v. City of Branson,
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`1 Hastings and Grand Island are closely neighboring cities in Central Nebraska. Grand
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`Island, where several of the plaintiffs live, is a city of just over 50,000 located in Hall County.
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`Hastings, where Dr. Leonard practices and where Noah's Ark's has its facility, is a city of
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`about 25,000 located in Adams County roughly 20 miles south of Grand Island.
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`Mo., 793 F.3d 910, 914 (8th Cir. 2015). In a facial attack, the Court merely
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`needs to look and see if the plaintiff has sufficiently alleged a basis of subject
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`matter jurisdiction. Id. Accordingly, the Court restricts itself to the face of the
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`pleadings and the non-moving party receives the same protections as it would
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`defending against a motion brought under Rule 12(b)(6)—that is, the Court
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`accepts all factual allegations in the pleadings as true and views them in the
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`light most favorable to the nonmoving party. Id.; Hastings v. Wilson, 516 F.3d
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`1055, 1058 (8th Cir. 2008).
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`Conversely, in a factual attack, the existence of subject matter
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`jurisdiction is challenged in fact, irrespective of the pleadings, and matters
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`outside the pleadings, such as testimony and affidavits, may be considered.
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`Branson Label, 793 F.3d at 914. Thus, the nonmoving party would not enjoy
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`the benefit of the allegations in its pleadings being accepted as true by the
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`reviewing court. Id. But factual challenges do not arise only when a court
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`considers matters outside the pleadings. Faibisch v. Univ. of Minnesota, 304
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`F.3d 797, 801 (8th Cir. 2002). A district court engages in a factual review when
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`it inquires into and resolves factual disputes. Id.
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`Although Noah's Ark did not present evidence in support of its motion to
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`dismiss, the plaintiffs have pointed to evidence they adduced in support of their
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`motion for preliminary injunction as also supporting their standing to sue. See
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`filing 40 at 16-20. So at least technically, this case presents a factual attack,
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`but the Court doesn't understand the facts—at least as relevant to standing—
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`to be disputed. See filing 51 at 13-18. Accordingly, the Court will resolve this
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`case on the complaint supplemented by undisputed facts evidenced in the
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`record. See Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008).2
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`2 The Court recognizes that prudential standing, discussed below, may not implicate the
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`Court's jurisdiction, see June Med. Servs. L. L. C. v. Russo, 140 S. Ct. 2103, 2117-18 (2020),
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`The jurisdiction of federal courts is limited to "cases" and "controversies,"
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`DISCUSSION
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`see U.S. Const., Art. III, § 2, and standing to sue is a doctrine rooted in the
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`traditional understanding of a case or controversy, Spokeo, Inc. v. Robins, 136
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`S. Ct. 1540, 1547 (2016). The doctrine developed to ensure that federal courts
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`do not exceed their authority, and limits the category of litigants who may
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`maintain a lawsuit in federal court to seek redress for a legal wrong. Id.
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`Plaintiffs must have "such a personal stake in the outcome of the controversy
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`as to justify the exercise of the court's remedial powers on their behalf. Town
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`of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017).
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`The "irreducible constitutional minimum" of Art. III standing consists of
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`three elements: the plaintiff must have (1) suffered an injury in fact, (2) that
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`is fairly traceable to the challenged conduct of the defendant, and (3) that is
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`likely to be redressed by a favorable judicial decision. Spokeo, 136 S. Ct. at
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`1547; Glickert v. Loop Trolley Transp. Dev. Dist., 792 F.3d 876, 881 (8th Cir.
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`2015). The plaintiff, as the party invoking federal jurisdiction, has the burden
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`to establish these elements. Spokeo, 136 S. Ct. at 1547.
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`The "first and foremost" of these three elements is the existence of an
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`"injury in fact": a plaintiff must show that he or she suffered an invasion of a
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`legally protected interest that is "concrete and particularized" and "actual or
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`imminent, not conjectural or hypothetical." Id. at 1548; see Trump v. New York,
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`141 S. Ct. 530, 535 (2020); Carney v. Adams, 141 S. Ct. 493, 498 (2020). For an
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`injury to be "particularized," it "must affect the plaintiff in a personal and
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`posing the question whether Rule 12(b)(1) (and its authority to consider evidence beyond the
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`pleadings) is the right procedural vehicle to decide the issue. But neither party has objected
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`to the Court addressing standing in this procedural posture. See filing 56 at 3 n.8.
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`individual way. Spokeo, 136 S. Ct. at 1548. And a "concrete" injury must
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`actually exist. Id.
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`In analyzing standing, the Supreme Court has repeatedly found that a
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`plaintiff lacks standing to sue when the plaintiff cannot demonstrate specific
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`injuries. Pucket v. Hot Springs Sch. Dist. No. 23-2, 526 F.3d 1151, 1160 (8th
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`Cir. 2008). In other words, for a federal court to have authority under the
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`Constitution to settle a dispute, the party before it must seek a remedy for a
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`personal and tangible harm: "the presence of a disagreement, however sharp
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`and acrimonious it may be, is insufficient by itself to meet Art. III's
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`requirements." Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013). The
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`"injury in fact" test requires more than an injury to a cognizable interest—it
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`requires that the party seeking review be himself among the injured. Lujan v.
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`Defs. of Wildlife, 112 S. Ct. 2130, 2137 (1992).
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`The plaintiffs' alleged injuries are neither concrete nor particularized:
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`the gist of their claim to standing is that there could be another COVID-19
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`outbreak at Noah's Ark, and that could cause widespread disease in the
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`community in which they live, and that could endanger them and affect the
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`community. See filing 40 at 16. But implicit in their argument is that (1) their
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`interests are the same as the rest of their community, and (2) their interests
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`are diffuse and derivative, depending on a sequence of causation that is nearly
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`impossible to predict or assess. And a plaintiff cannot establish standing by
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`asserting an abstract general interest common to all members of the public, no
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`matter how sincere or deeply committed a plaintiff is to vindicating that
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`general interest on behalf of the public. Carney, 141 S. Ct. at 499.
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`Similarly, the injuries the plaintiffs allege are neither actual nor
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`imminent. They seek no damages for past conduct, see filing 1 at 23, and their
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`predictions of what could happen in the absence of injunctive relief fall short
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`of describing an imminent injury. To be sure, a future injury may be
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`sufficiently actual or imminent "if the threatened injury is certainly
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`impending, or there is a substantial risk that the harm will occur." Dep't of
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`Commerce v. New York, 139 S. Ct. 2551, 2565 (2019); see Park v. Forest Serv.
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`of U.S., 205 F.3d 1034, 1037 (8th Cir. 2000). But a theory of standing "which
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`relies on a highly attenuated chain of possibilities" does not suffice. Clapper v.
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`Amnesty Int'l USA, 133 S. Ct. 1138, 1148 (2013); see Shain v. Veneman, 376
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`F.3d 815, 818 (8th Cir. 2004). The plaintiffs claim precisely such a chain of
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`possibilities, and "[i]f the plaintiffs [in this case] have alleged a cognizable
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`injury, then as [a] practical matter, any plaintiff who conceivably could be
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`harmed by a defendant's conduct would possess standing to sue in federal
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`court." Shain, 376 F.3d at 818.
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`In addition to lacking an injury in fact, the plaintiffs' claims fall short of
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`establishing traceability and redressability—a problem that's actually
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`exacerbated by the plaintiffs' efforts to claim an imminent injury. In
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`attempting to show that injury is imminent, the plaintiffs assert that "there
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`was already a large outbreak at Noah’s Ark and the surrounding community;
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`hundreds of meatpacking plants have had similar outbreaks, which have
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`universally led to spikes in community spread; [and] these outbreaks
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`continue. . . ." But if that's the case, how are the putative injuries the plaintiffs
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`allege—the effects of disease in the community—uniquely attributable to
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`Noah's Ark, and how would enjoining Noah's Ark mitigate those effects?
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`It would be different were the plaintiffs, say, current employees of Noah's
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`Ark. Then, their risk of COVID-19 might be fairly traceable to their workplace,
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`and injunctive relief in their favor might mediate that risk. But where the
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`alleged injury is to the community at large, the plaintiffs can only speculate as
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`to whether an outbreak of disease in the community would be attributable to
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`4:20-cv-03141-JMG-CRZ Doc # 63 Filed: 03/01/21 Page 7 of 10 - Page ID # 1100
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`Noah's Ark or some other cause. Cf. Clapper, 133 S. Ct. at 1149. And "it must
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`be more than merely speculative that the relief requested would have any
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`effect to redress the harm to the plaintiff." Hall v. Lhaco, Inc., 140 F.3d 1190,
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`1196 (8th Cir. 1998) (emphasis supplied); accord, e.g., Young Am. Corp. v.
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`Affiliated Computer Servs. (ACS), Inc., 424 F.3d 840, 845 (8th Cir. 2005).
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`The plaintiffs rely on the threat COVID-19 poses to their community . . .
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`but as we've all learned over the past year, there are lots of ways for COVID-
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`19 to spread in a community, through other meat processing facilities (as the
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`plaintiffs point out), other employers, and other gathering places. The risks
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`faced by these plaintiffs as members of the community come from an
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`incalculable number of sources, and while the plaintiffs are certainly entitled
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`to be concerned, the Court finds it difficult to see a limiting principle if the
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`Court's authority can be invoked by these plaintiffs against this defendant just
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`because some of the plaintiffs used to work there. Nor can the Court be in any
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`way assured that if it afforded the relief requested, the risk to the plaintiffs
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`would be meaningfully abated. See Warth v. Seldin, 95 S. Ct. 2197, 2208 (1975).
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`The plaintiffs specifically rely on Dr. Leonard's situation as establishing
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`Art. III standing, because they say his medical practice could suffer the
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`consequences of a COVID-19 outbreak. See filing 40 at 17. In that regard, the
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`Supreme Court's decision in Diamond v. Charles is instructive. 106 S. Ct. 1697,
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`1705 (1986). The doctor in Diamond sought to intervene in a federal lawsuit to
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`defend an Illinois abortion law, contending that because he was a pediatrician,
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`enforcement of a law that reduced abortion would mean more live births and
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`more patients. Id. at 1705. But the Supreme Court found that his asserted
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`standing rested on speculation, as opposed to the situation of physicians
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`against whom enforcement of the law was directed, or whose actual fees were
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`limited by the challenged law. Id. The Supreme Court explained that the
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`intervenor had "an interest, but no direct stake" in the process, and his
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`"abstract concern" did not suffice for purposes of Art. III. Id. at 1706.
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`The Court finds the same to be true here: Dr. Leonard's claim to standing
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`rests on the hypothetical and speculative effects on his practice of a sequence
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`of events that is itself speculative. And the Court again struggles to see a
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`limiting principle if the Court's authority can be invoked by a doctor against
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`any conduct that poses a threat to the health of his or her patients.
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`Beyond that, even if the Court could find Art. III standing, the plaintiffs'
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`claims would run squarely into the doctrine of prudential standing. It's also a
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`fundamental restriction on the Court's authority that in the ordinary course, a
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`litigant must assert his or her own legal rights and interests, and cannot rest
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`a claim to relief on the legal rights or interests of third parties. Hollingsworth
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`v. Perry, 133 S. Ct. 2652, 2663 (2013); Glickert, 792 F.3d 881; Hodak v. City of
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`St. Peters, 535 F.3d 899, 904 (8th Cir. 2008). So-called "prudential standing,"
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`which is separate from Art. III standing, embodies judicially self-imposed
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`limits on the exercise of federal jurisdiction. United States v. Windsor, 133 S.
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`Ct. 2675, 2685 (2013); Hodak, 535 F.3d 903-04; see Lucas v. Jerusalem Cafe,
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`LLC, 721 F.3d 927, 938 (8th Cir. 2013).
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`In this case, of course, the people directly put at risk by Noah's Ark's
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`alleged misconduct are the people who work there now, and the plaintiffs
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`cannot assert their claims for them. The "emotional distress and fear" the
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`plaintiffs say they would suffer if their former co-workers caught COVID-19,
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`see filing 40 at 18, won't suffice to allow them to sue in their own right.
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`The plaintiffs argue that they have third-party standing to assert claims
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`belonging to current employees of Noah's Ark, because they have close
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`relationships to people who still work there and those people, the plaintiffs say,
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`face retaliation if they sue in their own right. See filing 40 at 19. There is an
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`exception to prudential standing where the party asserting the right has a
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`close relationship with the person who possesses the right and there is a
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`hindrance to the possessor's ability to protect his own interests. Sessions v.
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`Morales-Santana, 137 S. Ct. 1678, 1689 (2017). But only in exceptional cases
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`may a party have standing to assert the rights of another. Ben Oehrleins &
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`Sons & Daughter, Inc. v. Hennepin Cty., 115 F.3d 1372, 1378-79 (8th Cir. 1997).
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`Specifically, the Supreme Court has been willing to lessen the prudential
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`limitations on standing within the context of the First Amendment. Kowalski
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`v. Tesmer, 125 S. Ct. 564, 567 (2004). And the Supreme Court has allowed
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`third-party standing when enforcement of a challenged regulation against the
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`litigant would indirectly violate the rights of third parties. Id. at 568. But
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`outside of those examples, the Supreme Court has not looked favorably upon
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`third-party standing. Id.
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`In this case, the plaintiffs offer little to explain why third-party standing
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`is appropriate when, by their own allegations, both plant employees and local,
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`state, and federal officials would be highly motivated to regulate and monitor
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`the conduct the plaintiffs allege. See Thole v. U. S. Bank N.A, 140 S. Ct. 1615,
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`1621 (2020). The former-employee plaintiffs have been proceeding in this case
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`pseudonymously because of possible retaliation, but the plaintiffs haven't
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`articulated any reason why current employees couldn't do the same.3 And of
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`course, third-party standing exists as an exception to prudential standing
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`requirements. See Kowalski, 125 S. Ct. at 567. Even in the rare instances when
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`litigants may assert the interests of others, the litigants themselves still must
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`have suffered an injury in fact, thus giving them a sufficiently concrete interest
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`3 Were the current employees' union to attempt to assert the rights of its members, that would
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`present an interesting question of associational standing. See, e.g., Higgins Elec., Inc. v.
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`O'Fallon Fire Prot. Dist., 813 F.3d 1124, 1128 (8th Cir. 2016). But the union's not here either.
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`in the outcome of the issue in dispute. Hollingworth, 133 S. Ct. at 2663. As
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`explained above, the plaintiffs in this case have not.
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`CONCLUSION
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`For the reasons explained above, the Court finds that the plaintiffs lack
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`both Art. III and prudential standing. Accordingly,
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`IT IS ORDERED:
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`1.
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`Noah's Ark's motion to dismiss (filing 50) is granted.
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`2.
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`The plaintiffs' complaint is dismissed.
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`3.
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`All other pending motions are denied as moot, and all
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`pending objections are overruled as moot.
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`4.
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`A separate judgment will be entered.
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`Dated this 1st day of March, 2021.
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`BY THE COURT:
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`John M. Gerrard
`Chief United States District Judge
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