Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`FERDINAND BENJAMIN, Individually
`and as the Personal Representative of the
`Estate of ENOCK BENJAMIN, Deceased
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`JBS S.A., et al.,
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`v.
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`Plaintiff,
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`Civil Action No. 2:20-cv-02594-JP
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`Defendants.
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`[PROPOSED] ORDER
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`AND NOW, this ________ day of ______________, 2020, upon consideration of
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`Defendant JBS S.A.’s Motion to Dismiss, and any response thereto, it is hereby ORDERED that
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`Defendant’s Motion is GRANTED, and it is further ORDERED that all of Plaintiff’s claims
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`against Defendant JBS S.A. are dismissed with prejudice.
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`BY THE COURT
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`
`John R. Padova
`United States District Judge
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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 2 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`Plaintiff,
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`v.
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`
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`Civil Action No. 2:20-cv-02594-JP
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`FERDINAND BENJAMIN, Individually
`and as the Personal Representative of the
`Estate of ENOCK BENJAMIN, Deceased
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`JBS S.A., et al.,
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`MOTION TO DISMISS OF DEFENDANT JBS S.A. PURSUANT TO
`FEDERAL RULES OF CIVIL PROCEDURE 12(b)(2) AND 12(b)(6)
`Defendant JBS S.A. moves to dismiss all causes of action against it with prejudice. In
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`
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`Defendants.
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`support of this Motion, JBS S.A. relies on the accompanying Memorandum of Law, as well as
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`Defendants JBS USA Food Company’s, JBS USA Holdings’s, JBS Souderton, Inc.’s, and
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`Pilgrim’s Pride Corporation’s Memorandum of Law in Support of Amended Motion to Dismiss
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`[ECF No. 15] and Reply Memorandum in Support of Amended Motion to Dismiss [ECF No.
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`25], which are incorporated herein by reference. JBS S.A. respectfully requests that the Court
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`hold oral argument at which its counsel may be heard on this Motion.
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`WHEREFORE, JBS S.A. respectfully requests that the Court grant this Motion and enter
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`an Order in the form accompanying this Motion.
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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 3 of 18
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`Dated: September 16, 2020
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`Respectfully submitted,
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`
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`
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`s/Molly E. Flynn
`Molly E. Flynn (Pa. ID No. 205593)
`Mark D. Taticchi (Pa. ID No. 323436)
`Rebecca L. Trela (Pa. ID No. 313555)
`FAEGRE DRINKER BIDDLE & REATH LLP
`One Logan Square, Suite 2000
`Philadelphia, PA 19103-6996
`Telephone:
`(215) 988-2700
`Facsimile:
`(215) 988-2757
`
`Attorneys for Defendant JBS S.A.
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`
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`
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`

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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 4 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`v.
`
`
`FERDINAND BENJAMIN, Individually
`and as the Personal Representative of the
`Estate of ENOCK BENJAMIN, Deceased
`
`
`
`
`
`JBS S.A., et al.,
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`
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`MEMORANDUM OF LAW IN SUPPORT OF
`MOTION TO DISMISS OF DEFENDANT JBS S.A. PURSUANT TO
`FEDERAL RULES OF CIVIL PROCEDURE 12(b)(2) AND 12(b)(6)
`
`
`
`
`
`
`Civil Action No. 2:20-cv-02594-JP
`
`
`
`s/Molly E. Flynn
`
`
`Molly E. Flynn (Pa. ID No. 205593)
`Mark D. Taticchi (Pa. ID No. 323436)
`Rebecca L. Trela (Pa. ID No. 313555)
`FAEGRE DRINKER BIDDLE & REATH LLP
`One Logan Square, Suite 2000
`Philadelphia, PA 19103-6996
`Telephone:
`(215) 988-2700
`Facsimile:
`(215) 988-2757
`
`Attorneys for Defendant JBS S.A.
`
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`Defendants.
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`Dated: September 16, 2020
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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 5 of 18
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`TABLE OF CONTENTS
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`Page
`
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`I.
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`II.
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`INTRODUCTION ............................................................................................................. 1
`
`RELEVANT FACTUAL BACKGROUND ...................................................................... 1
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`A.
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`B.
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`Plaintiff fails to allege any facts regarding JBS S.A. sufficient to support
`the exercise of jurisdiction. .................................................................................... 1
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`Procedural posture. ................................................................................................ 3
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`III.
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`ARGUMENT ..................................................................................................................... 3
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`A.
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`The Court should dismiss Plaintiff’s claims against JBS S.A. for lack of
`personal jurisdiction. .............................................................................................. 3
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`1.
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`2.
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`3.
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`Legal standard for dismissal under FRCP 12(b)(2). .................................. 3
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`The Court does not have personal jurisdiction over JBS S.A. ................... 6
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`a.
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`b.
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`The Court lacks general personal jurisdiction over JBS S.A. ........ 7
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`The Court also lacks specific personal jurisdiction over JBS
`S.A. ................................................................................................ 7
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`JBS S.A. is not an alter ego of any other entity named as a
`defendant. ................................................................................................... 8
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`B.
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`The Court should dismiss Plaintiff’s claims against JBS S.A. for failure to
`state a claim upon which relief can be granted. ................................................... 10
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`IV.
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`CONCLUSION ................................................................................................................ 10
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`
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`i
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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 6 of 18
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`TABLE OF AUTHORITIES
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`Page(s)
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`
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`
`
`CASES
`
`Abira Med. Labs., LLC v. Johns Hopkins Healthcare LLC,
`No. 2:19-cv-05090, 2020 WL 3791565 (E.D. Pa. July 7, 2020) ...............................................5
`
`Britax Child Safety, Inc. v. Nuna Int’l B.V.,
`321 F. Supp. 3d 546 (E.D. Pa. 2018) .........................................................................................6
`
`Burger King Corp. v. Rudzewicz,
`471 U.S. 462 (1985) ...................................................................................................................4
`
`Carteret Sav. Bank, FA v. Shushan,
`954 F.2d 141 (3d Cir. 1992).......................................................................................................3
`
`Daimler AG v. Bauman,
`571 U.S. 117 (2014) ...............................................................................................................4, 7
`
`Goodyear Dunlop Tires Operations, S.A. v. Brown,
`564 U.S. 915 (2011) ...............................................................................................................4, 7
`
`Helicopteros Nacionales de Colombia, S.A. v. Hall,
`466 U.S. 408 (1984) ...............................................................................................................3, 4
`
`IMO Indus., Inc. v. Kiekert AG,
`155 F.3d 254 (3d Cir. 1998).......................................................................................................5
`
`LaSala v. Marfin Popular Bank Pub. Co.,
`410 F. App’x 474 (3d Cir. 2011) ...............................................................................................4
`
`Lutz v. Rakuten, Inc.,
`376 F. Supp. 3d 455 (E.D. Pa. 2019) .....................................................................................6, 8
`
`Metcalfe v. Renaissance Marine, Inc.,
`566 F.3d 324 (3d Cir. 2009).......................................................................................................3
`
`Oeschle v. Pro-Tech Power, Inc.,
`No. 03-cv-6875, 2006 WL 680908 (E.D. Pa. Mar. 15, 2006) ...................................................6
`
`Provident Nat’l Bank v. Cal. Fed. Sav. & Loan Assoc.,
`819 F.2d 434 (3d Cir. 1987).......................................................................................................3
`
`Remick v. Manfredy,
`238 F.3d 248 (3d Cir. 2001).......................................................................................................5
`
`
`
`ii
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`

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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 7 of 18
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`
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`Renner v. Lanard Toys Ltd.,
`33 F.3d 277 (3d Cir. 1994).........................................................................................................5
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`Shaffer v. Heitner,
`433 U.S. 186 (1977) ...................................................................................................................5
`
`Shuker v. Smith & Nephew, PLC,
`885 F.3d 760 (3d Cir. 2018).......................................................................................................5
`
`Walden v. Fiore,
`571 U.S. 277 (2014) ...........................................................................................................4, 5, 8
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`STATUTES, RULES & REGULATIONS
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`42 Pa.C.S. § 5322(b) ........................................................................................................................5
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`42 Pa.C.S. § 5322(c) ........................................................................................................................5
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`Fed. R. Civ. P. 4(k)(1)(A) ................................................................................................................4
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`Fed. R. Civ. P. 9(b) ....................................................................................................................1, 10
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`Fed. R. Civ. P. 12(b)(2).......................................................................................................... passim
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`Fed. R. Civ. P. 12(b)(6)..............................................................................................................1, 10
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`
`
`iii
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`

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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 8 of 18
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`
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`I.
`Defendant JBS S.A. seeks dismissal of all claims against it in accordance with Federal
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`INTRODUCTION
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`Rules of Civil Procedure 12(b)(2), 12(b)(6), and 9(b). JBS S.A. is a publicly held Brazil-based
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`corporate parent entity of numerous protein processing companies around the world, with no
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`connection to Plaintiff or the claims at issue. Accordingly, the Court lacks personal jurisdiction
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`over this entity, and all claims against it should be dismissed under Rule 12(b)(2). Specifically,
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`general personal jurisdiction is lacking because JBS S.A. is neither incorporated nor
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`headquartered in Pennsylvania. Moreover, as the declaration submitted herewith establishes,
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`JBS S.A. has no involvement in any decisions concerning JBS Souderton’s COVID-19 planning,
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`mitigation, and response activities; nor that facility’s safety-related policies. Thus, the Court also
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`lacks specific personal jurisdiction over JBS S.A. because it did not engage in any conduct
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`related to the claims asserted in Plaintiff’s Complaint.
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`In addition, the arguments earlier raised by its co-defendants under Rules 9(b) and
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`12(b)(6) apply here with equal force. See Defs.’ Mem. of Law in Support of Am. Mot. to
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`Dismiss 14–42 [ECF No. 15] (“MTD”) and Reply Mem. in Support of Am. Mot. to Dismiss 18–
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`28 [ECF No. 25] (“MTD Reply”). To avoid unnecessary repetition, JBS S.A. joins in its co-
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`defendants’ previously filed motion to dismiss pursuant to Rules 12(b)(6) and 9(b), and
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`incorporates by reference and relies upon those arguments. Id.
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`II.
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`RELEVANT FACTUAL BACKGROUND
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`A.
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`Plaintiff fails to allege any facts regarding JBS S.A. sufficient to support the exercise
`of jurisdiction.
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`Plaintiff alleges that his now-deceased father, Enock Benjamin, contracted COVID-19
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`while employed at JBS Souderton, a beef-processing facility in Souderton, Pennsylvania. He
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`filed various common-law tort claims against the employer, JBS Souderton; defunct corporation
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`
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`1
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`

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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 9 of 18
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`JBS USA Holdings, Inc.; unrelated poultry-processing business Pilgrim’s Pride Corporation; and
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`Colorado-based JBS USA Food Company, in addition to JBS S.A.. See Compl. ¶¶ 111–146
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`[ECF No. 1-1]; and see MTD 3–7.
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`Plaintiff’s Complaint is notable for what it lacks: any allegations of conduct specific to
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`any defendant, including—most importantly for present purposes—JBS S.A. There is no
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`allegation that Enock Benjamin was employed by JBS S.A., or ever visited its offices in Brazil,
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`or had any contact with this company. See generally Compl. Instead, Plaintiff merely alleges, in
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`sweeping fashion, that “Defendants, JBS S.A., JBS USA Food Company, JBS USA Holdings,
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`Inc., JBS Souderton, Inc., and Pilgrim’s Pride Corporation, owned, operated, managed, and
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`otherwise controlled the meat packing plant at 249 Allentown Road, Souderton, PA 18964” and
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`that they “collectively and individually made decisions related to worker health, safety,
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`protection, and sanitation in light of the COVID-19 pandemic.” Compl. ¶¶ 138–139.
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`The attached declaration of Gilberto Tomazoni disproves Plaintiff’s conclusory
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`allegations about JBS S.A. and its supposed involvement in the day-to-day management of a beef
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`processing plant in Montgomery County, Pennsylvania. Ex. A, Declaration of Gilberto
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`Tomazoni (“Tomazoni Decl.”). JBS S.A. is based in São Paulo, Brazil, and is not at all involved
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`in decisions regarding, and has no responsibility for, JBS Souderton Inc.’s operational or disaster
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`planning, including but not limited to its COVID-19 preparedness or mitigation plans. Id. at
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`¶¶ 2, 9. JBS S.A. likewise has no responsibility for safety issues or plans at JBS Souderton, Inc.,
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`and it is not involved in managing its personnel. Id. at ¶ 10–11. Nor did JBS S.A. employ
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`Enock Benjamin or anyone else at JBS Souderton, Inc. Id. at ¶¶ 12–14. Simply put, Plaintiff’s
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`boilerplate assertions of collective responsibility are both implausible on their face (given the
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`scope of operations undertaken by the hundreds of entities in the JBS family of companies, see
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`2
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`

`

`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 10 of 18
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`Compl. ¶¶ 41-42, 140) and, more importantly, contradicted by the actual facts—as shown in the
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`declaration accompanying this motion.
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`B.
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`Procedural posture.
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`Plaintiff filed his Complaint on May 7, 2020, in the Court of Common Pleas of
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`Philadelphia County, and the matter was timely removed to this Court on June 2, 2020. JBS S.A.
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`was served in Sao Paolo, Brazil, on August 14, 2020.
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`Two motions are fully briefed and pending before the Court: Defendants JBS USA Food
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`Company’s, JBS USA Holdings’s, JBS Souderton, Inc., and Pilgrim’s Pride Corporation’s
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`Amended Motion to Dismiss [ECF Nos. 15, 20, 25, 31], and Plaintiff’s Motion to Remand [ECF
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`Nos. 17, 21, 29].
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`III. ARGUMENT
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`A.
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`The Court should dismiss Plaintiff’s claims against JBS S.A. for lack of personal
`jurisdiction.
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`Legal standard for dismissal under FRCP 12(b)(2).
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`1.
`When evaluating a motion to dismiss for lack of personal jurisdiction in which there are
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`contested facts, the plaintiff has the burden to “‘prov[e] by affidavits or other competent
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`evidence that jurisdiction is proper.’” Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330
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`(3d Cir. 2009) (internal citations omitted); see Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141,
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`142 n.1 (3d Cir. 1992). To meet this burden, a plaintiff must establish “with reasonable
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`particularity sufficient contacts between the defendant and the forum state.” Provident Nat’l
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`Bank v. Cal. Fed. Sav. & Loan Assoc., 819 F.2d 434, 437 (3d Cir. 1987). Further, the plaintiff
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`must establish either that the “particular cause of action sued upon arose from the defendant’s
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`activities within the forum state (‘specific jurisdiction’) or that the defendant has ‘continuous
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`and systematic’ contacts with the forum state (‘general jurisdiction’).” Id. (citing Helicopteros
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`3
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`

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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 11 of 18
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`
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`Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 416 (1984)). The plaintiff must make
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`these showings by a preponderance of the evidence. See LaSala v. Marfin Popular Bank Pub.
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`Co., 410 F. App’x 474, 476 (3d Cir. 2011).
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`General jurisdiction arises only in those states where a defendant’s contacts are so
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`“continuous and systematic” as to render it effectively “at home” in that jurisdiction. For
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`corporate entities such as JBS S.A., an entity is considered to be “at home” in its state of
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`incorporation and in the state where it has its principal place of business. Daimler AG v.
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`Bauman, 571 U.S. 117, 127 (2014). When general jurisdiction exists over a defendant, it may be
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`sued in that state, even on claims that have no connection to its contacts with the state.
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`Specific jurisdiction, by contrast, “is confined to adjudication of ‘issues deriving from, or
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`connected with, the very controversy that establishes jurisdiction.’” Goodyear Dunlop Tires
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`Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citation omitted). In addition, to support
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`jurisdiction, the relationship between the defendant, the forum state, and the cause of action
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`“must arise out of contacts that the ‘defendant himself’ creates with the forum State.” Walden v.
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`Fiore, 571 U.S. 277, 284 (2014) (emphasis in original) (quoting Burger King Corp. v.
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`Rudzewicz, 471 U.S. 462, 475 (1985)). If the plaintiff makes this showing through competent
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`evidence, the court must determine, in its discretion, that exercising jurisdiction would “comport
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`with traditional notions of fair play and substantial justice.” Burger King Corp., 417 U.S. at
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`476–77 (internal quotation marks omitted).
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`Because there is no federal statute governing personal jurisdiction in this case, this Court
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`applies the law of the state in which the district court sits. See Fed. R. Civ. P. 4(k)(1)(A); see
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`also Daimler, 571 U.S. at 125 (“Federal courts ordinarily follow state law in determining the
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`bounds of their jurisdiction over persons.”). As relevant here, Pennsylvania’s long-arm statute
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`4
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`

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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 12 of 18
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`
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`allows its courts to assert specific personal jurisdiction “to the fullest extent allowed under the
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`Constitution of the United States,” 42 Pa.C.S. § 5322(b), but limits the scope of that jurisdiction
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`to “only [those] cause[s] of action or other matter[s] arising from . . . acts forming the basis of
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`jurisdiction,” id. § 5322(c). Consequently, the “court’s inquiry is solely whether the exercise of
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`personal jurisdiction over the defendant[s] would be constitutional.” Renner v. Lanard Toys
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`Ltd., 33 F.3d 277, 279 (3d Cir. 1994).
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`The analysis of whether the Due Process Clause permits personal jurisdiction “depends
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`upon the relationship among the defendant, the forum, and the litigation.” IMO Indus., Inc. v.
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`Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998) (citing Shaffer v. Heitner, 433 U.S. 186, 204
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`(1977)) (internal quotation omitted). To meet the constitutional requirement, “the defendant’s
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`suit-related conduct must create a substantial connection with the forum State.” Abira Med.
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`Labs., LLC v. Johns Hopkins Healthcare LLC, No. 2:19-cv-05090, 2020 WL 3791565, at *3
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`(E.D. Pa. July 7, 2020) (citing Walden, 571 U.S. at 284). Moreover, the Due Process Clause
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`requires a court to assess the existence of personal jurisdiction separately for each cause of action
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`a plaintiff asserts. See Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001) (“[A] conclusion
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`that the District Court has personal jurisdiction over one of the defendants as to a particular claim
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`asserted by [the plaintiff] does not necessarily mean that it has personal jurisdiction over that
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`same defendant as to [that plaintiff’s] other claims.”).
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`In cases involving a foreign defendant who has not engaged in sufficient forum- and suit-
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`related conduct to subject itself to personal jurisdiction on its own account, jurisdiction will not
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`be found as to that foreign defendant unless the plaintiff can prove it is the “alter ego” of a
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`defendant over which the district court does have jurisdiction. See Shuker v. Smith & Nephew,
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`PLC, 885 F.3d 760, 781 (3d Cir. 2018). To make that showing, “‘a plaintiff must show that a
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`
`
`5
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`

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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 13 of 18
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`
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`parent company is operating the “day-to-day operations of the subsidiary such that the subsidiary
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`can be said to be a mere department of the parent.”’” Lutz v. Rakuten, Inc., 376 F. Supp. 3d 455,
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`471 (E.D. Pa. 2019) (quoting Britax Child Safety, Inc. v. Nuna Int’l B.V., 321 F. Supp. 3d 546,
`
`555 (E.D. Pa. 2018) (quoting, in turn, Oeschle v. Pro-Tech Power, Inc., No. 03-cv-6875, 2006
`
`WL 680908, at *5 (E.D. Pa. Mar. 15, 2006))).
`
`Courts in this district look to ten factors when making that assessment:
`
`(1) ownership of all or most of the stock of the related corporation;
`(2) common officers and directors; (3) common marketing image;
`(4) common use of a trademark or logo; (5) common use of
`employees;
`(6) integrated sales system;
`(7) interchange of
`managerial and supervisory personnel; (8) performance by the
`related corporation of business functions which the principal
`corporation would normally conduct through its own agent or
`departments; (9) acting of the related corporation as marketing arm
`of the principal corporation, or as an exclusive distributor; and
`(10) receipt by the officers of the related corporation of instruction
`from the principal corporation.
`
`Lutz, 376 F. Supp. 3d at 471. As demonstrated below, application of these principles to JBS S.A.
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`shows that it is not subject to personal jurisdiction in this Court.
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`The Court does not have personal jurisdiction over JBS S.A.
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`2.
`JBS S.A. is not headquartered in the Commonwealth of Pennsylvania, and it is not
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`incorporated in this state. It was not at all involved in or responsible for the COVID-19
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`mitigation effort at the JBS Souderton, Inc. facility, or for any of the actions (or omissions) that
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`Plaintiff claims led to Mr. Benjamin’s COVID-19 infection. Nor can it plausibly be argued that
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`JBS S.A. exercises control over or operates any other entity named in this action. Accordingly,
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`there is neither general personal jurisdiction nor specific personal jurisdiction over JBS S.A., and
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`the Court should dismiss this entity pursuant to Fed. R. Civ. P. 12(b)(2).
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`
`
`6
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`

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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 14 of 18
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`
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`The Court lacks general personal jurisdiction over JBS S.A.
`
`a.
`The Court does not have general jurisdiction over JBS S.A. because it is neither
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`incorporated nor headquartered in Pennsylvania, as Plaintiffs acknowledge, and cannot be
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`considered “at home” in the state. See Daimler, 571 U.S. at 138–39; see also Compl. ¶ 114
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`(“JBS S.A. is a corporation organized and existing under the laws of Brazil, with a principal place
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`of business [in Sao Paolo, Brazil],” as identified in the caption); Tomazoni Decl. ¶¶ 2, 4 (“JBS
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`S.A. is not incorporated or registered to do business in the state of Pennsylvania, and has not
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`appointed [an] agent for service of process in Pennsylvania.”) Accordingly, the Court does not
`
`have general personal jurisdiction over JBS S.A.
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`The Court also lacks specific personal jurisdiction over JBS S.A.
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`b.
`Because the Court cannot exercise general jurisdiction over JBS S.A., it must determine
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`whether that entity is subject to specific personal jurisdiction under the facts of this case. That,
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`too, is unavailing, because JBS S.A. did not engage in any activities or conduct related to the
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`claims at issue. See Goodyear Dunlop Tires, 564 U.S. at 919 (“Specific jurisdiction, on the other
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`hand, depends on an ‘affiliatio[n] between the forum and the underlying controversy,’
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`principally, activity or an occurrence that takes place in the forum State and is therefore subject
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`to the State’s regulation.”).
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`Plaintiff claims that Defendants failed to employ appropriate COVID-19 mitigation
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`measures at the JBS Souderton beef processing facility, which led to Mr. Benjamin’s infection.
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`He makes no attempt to distinguish among the Defendants, implausibly arguing that all five
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`defendant entities engaged in each and every act mentioned in the Complaint. See, e.g., Compl.
`
`¶ 139 (“Defendants, JBS S.A., JBS USA Food Company, JBS USA Holdings, Inc., JBS
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`Souderton, Inc., and Pilgrim’s Pride Corporation . . . collectively and individually made
`
`
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`7
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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 15 of 18
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`decisions related to worker health, safety, protection, and sanitation in light of the COVID-19
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`pandemic.”); id. ¶ 141.
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`Plaintiff’s boilerplate assertions are belied by the attached declaration, which establishes
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`that JBS S.A. did not have any responsibility for or involvement in decisions related to COVID-
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`19 preparedness or mitigation at the JBS Souderton, Inc. facility. Tomazoni Decl. ¶ 9. Indeed, it
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`has no involvement in any operational decisions at or for JBS Souderton, Inc., including those
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`specifically related to worker safety issues or plans. Id. at ¶¶ 9, 11. JBS S.A. does not employ
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`anyone working at the JBS Souderton, Inc. facility—including Mr. Benjamin—and does not
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`manage its personnel there. Id. at ¶¶ 10, 12–14. In short, there is no plausible relationship
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`between “the defendant [(JBS S.A.)], the forum [(Pennsylvania)] and the litigation [(Mr. Enock’s
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`COVID-19 infection)],” much less one that would support the exercise of specific personal
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`jurisdiction. See Walden, 571 U.S. at 284. Consequently, the Court lacks personal jurisdiction
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`over JBS S.A., and the claims against this entity should be dismissed under Rule 12(b)(2).
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`JBS S.A. is not an alter ego of any other entity named as a defendant.
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`3.
`Plaintiff also cannot establish personal jurisdiction over JBS S.A. by claiming it is the
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`alter ego of either JBS Souderton or JBS USA Food. As the declaration submitted by Mr.
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`Tomazoni shows, there is absolutely no indication that JBS S.A. is conducting the “day-to-day
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`operations of [JBS USA Food or JBS Souderton] such that [they] can be said to be a mere
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`department of [JBS S.A.].” Lutz, 376 F. Supp. 3d at 471 (internal quotation marks omitted).1 As
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`just a few illustrations, JBS S.A. does not:
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`1 The same is of course true as to JBS Holdings, Inc., which “no longer exists and has not existed
`in the United States since December 23, 2015,” Tomazoni Decl. ¶ 15, and as to Pilgrim’s Pride
`Corporation, which is a chicken-processing business wholly distinct from the beef processing
`business where Mr. Benjamin worked. See MTD at 10–12.
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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 16 of 18
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`• Possess any direct ownership stake in either JBS USA Food or JBS Souderton,
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`see id. at ¶ 5;
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`• Act as the marketing arm or exclusive distributor for JBS USA Food or JBS
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`Souderton, id. at ¶ 7;
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`• Use JBS USA Food or JBS Souderton as its own marketing arm or exclusive
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`distributor, id. at ¶ 8; or
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`• Use sales systems that are integrated with those of JBS USA Food or JBS
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`Souderton, id. at ¶ 6.
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`More pertinent to the facts of this particular case, JBS S.A. also had no involvement in the
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`development or implementation of JBS Souderton’s COVID-19 preparedness and mitigation
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`plans. Tomazoni Decl. ¶ 9. Nor was it “involved in JBS Souderton Inc.’s operational or disaster
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`response decisions at or for the Souderton facility.” Id. JBS S.A. likewise “does not employ
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`anyone working at the Souderton Facility,” id. ¶ 12 (emphasis added)—including, in particular,
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`Enock Benjamin, id. at ¶ 14.
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`The short of the matter is this: JBS S.A. does not operate JBS USA Food or JBS
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`Souderton as mere departments. They therefore are not its alter egos, and Plaintiff’s assertion of
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`personal jurisdiction over it cannot be supported on that ground. Because JBS S.A. does not
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`control or operate any other entity named in this action, it cannot be the alter ego of any of those
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`businesses. Thus, the Court does not have personal jurisdiction over JBS S.A. Accordingly, this
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`Motion should be granted, and all claims against JBS S.A. should be dismissed under Rule
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`12(b)(2).
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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 17 of 18
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`B.
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`The Court should dismiss Plaintiff’s claims against JBS S.A. for failure to state a
`claim upon which relief can be granted.
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`Any remaining claims should be dismissed for failure to state a claim under Rule 12(b)(6)
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`and failure to plead fraud and intentional misrepresentation claims with particularity under Rule
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`9(b). JBS S.A. joins in its co-defendants’ previously-filed motion to dismiss on these points, and
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`incorporates by reference and relies upon those arguments here. See Defs.’ Mem. of Law in
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`Support of Am. Mot. to Dismiss 14–42 [ECF No. 15] at 14–42, and Reply Mem. in Support of
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`Am. Mot. to Dismiss at 18–28 [ECF No. 25].
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`IV. CONCLUSION
`For all the reasons set forth above, as well as in Defendants’ Memorandum of Law in
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`Support of Amended Motion to Dismiss [ECF No. 15] and Reply Memorandum in Support of
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`Amended Motion to Dismiss [ECF No. 25], all of Plaintiff’s claims against JBS S.A. should be
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`dismissed with prejudice. Defendant also requests all other and further relief to which it is
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`entitled at law or in equity.
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`Dated: September 16, 2020
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`Respectfully submitted,
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`s/Molly E. Flynn
`Molly E. Flynn (Pa. ID No. 205593)
`Mark D. Taticchi (Pa. ID No. 323436)
`Rebecca L. Trela (Pa. ID No. 313555)
`FAEGRE DRINKER BIDDLE & REATH LLP
`One Logan Square, Suite 2000
`Philadelphia, PA 19103-6996
`Telephone:
`(215) 988-2700
`Facsimile:
`(215) 988-2757
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`Attorneys for Defendant JBS S.A.
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`Case 2:20-cv-02594-JP Document 36 Filed 09/16/20 Page 18 of 18
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`CERTIFICATE OF SERVICE
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`I, Molly E. Flynn, hereby certify that on September 16, 2020, I electronically filed the
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`foregoing Motion to Dismiss and Memorandum of Law in Support of Motion to Dismiss of
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`Defendant JBS S.A. Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) with the
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`Clerk of the Court using the CM/ECF system, which will send notification of such filing to
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`counsel or parties of record electronically by CM/ECF.
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`s/Molly E. Flynn
`Molly E. Flynn
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`Attorney for Defendant JBS S.A.
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