Case 9:20-cv-00147 Document 1 Filed 07/02/20 Page 1 of 11 PageID #: 1
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
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`JOSE MANUEL REQUENA and
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`OSCAR REQUENA, Individually and
`On Behalf of the Estate of Maria Hernandez, )
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`Plaintiffs,
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`vs.
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`PILGRIM’S PRIDE CORPORATION,
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`Defendant
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`DEFENDANT PILGRIM’S PRIDE CORPORATION’S
`NOTICE OF REMOVAL
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`Defendant Pilgrim’s Pride Corporation (“Pilgrim’s”) files its Notice of Removal to remove
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`this action to the United States District Court for the Eastern District of Texas, Lufkin Division,
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`pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446. Plaintiffs Jose Manuel Requena and Oscar
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`Requena, individually and on behalf of the Estate of Maria Hernandez (collectively, “Plaintiffs”),
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`originally filed this action in the 217th Judicial District Court of Angelina County, Texas, where
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`the action is currently pending.
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`I.
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`NATURE OF THE ACTION
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`1.
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`This is a wrongful death and survival action filed by the sons of a deceased
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`employee of Pilgrim’s Lufkin, Texas poultry processing plant who allegedly contracted COVID-
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`19. (See generally Plaintiff’s Original Petition (“Pet.”) attached hereto as Exhibit (“Ex.”) A.)
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`2.
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`The sons, Plaintiffs Jose Manuel Requena and Oscar Requena, claim their mother,
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`Maria Hernandez, was “instructed to report to work in the Shipping and Labeling department” of
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`Pilgrim’s meat processing facility “to fill in for Pilgrim’s workers who were absent due to a
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`COVID-19 outbreak.” (Id. ¶¶ 5, 18.)
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`3.
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`Ms. Hernandez’s sons allege Pilgrim’s committed negligence by sending Ms.
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`Hernandez to work in a section of the meat processing facility without allegedly providing her
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`with adequate warnings, personal protection equipment, and without taking reasonable steps to
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`render the area safe. (Id. ¶¶ 24-32.)
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`4.
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`Ms. Hernandez’s sons also blame Pilgrim’s for not shutting down the Lufkin meat
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`processing facility like “other employers.” (Id. ¶ 8.)
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`5.
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`Although Ms. Hernandez’s last day at the Pilgrim’s Lufkin meat processing plant
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`was Monday, May 4, 2020 (id. ¶ 19), Plaintiffs do not allege Ms. Hernandez tested positive for
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`COVID-19 on or before that date. (See generally Pet.; see also id. ¶ 21.)
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`6.
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`The lawsuit also does not allege Ms. Hernandez worked alongside any Pilgrim’s
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`employee infected with COVID-19 or any employee that Pilgrim’s knew was infected with
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`COVID-19. (See generally id.)
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`7.
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`On May 8, 2020, Ms. Hernandez passed-away allegedly “of complications related
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`to COVID-19 . . . .” (Id. ¶ 22.)
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`8.
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`Approximately one month after Ms. Hernandez died, Plaintiffs filed this lawsuit
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`against Pilgrim’s in an Angelina County, Texas state court seeking “over $1,000,000” in damages
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`for Ms. Hernandez’s death. (Id. ¶ 32.)
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`9.
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`Plaintiffs allege negligence and gross negligence causes of action against Pilgrim’s.
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`(Id. ¶¶ 24-32, 34-36.)
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`II.
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`REMOVAL IS TIMELY
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`10.
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`On June 9, 2020, Plaintiffs filed their Original Petition (“Petition”) in the 217th
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`Judicial District Court of Angelina County, Texas, styled Jose Manuel Requena and Oscar
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`Requena, individually and on behalf of the Estate of Maria Hernandez v. Pilgrim’s Pride
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`Corporation, Cause No. CV-00296-20-06. (See Pet.)
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`11.
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`12.
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`Service was made on Pilgrim’s on June 11, 2020. (See Ex. A.)
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`Pursuant to 28 U.S.C. § 1446(a), a copy of the Petition and all process and pleadings
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`served upon Pilgrim’s are attached to this notice as Exhibit “A.”
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`13.
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`Pursuant to 28 U.S.C. § 1446(b), this Notice is filed within thirty (30) days of the
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`date Pilgrim’s was served with the Petition.
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`III. REMOVAL IS PROPER
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`14.
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`Removal is proper pursuant to 28 U.S.C. § 1332 because complete diversity exists
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`between Plaintiffs and Defendant Pilgrim’s, and the amount-in-controversy exceeds $75,000.00.
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`15.
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`Additionally, removal is proper under 28 U.S.C. § 1331 because this action arises
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`under the Constitution, laws, or treaties of the United States.
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`16.
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`Each basis for jurisdiction will be addressed in turn.
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`A.
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`Complete Diversity Exists and the Amount-in-Controversy Exceeds $75,000.00.
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`17.
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`18.
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`19.
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`Plaintiff Jose Manuel Requena is alleged to be a resident of Texas. (Pet. ¶ 1.)
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`Plaintiff Oscar Requena is alleged to be a resident of Texas. (Pet. ¶ 2.)
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`The deceased, Ms. Hernandez, is alleged to have been a resident of Texas. (Pet. ¶
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`16, 19; see also id. ¶¶ 1-2.)
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`20.
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`Defendant Pilgrim’s is a Delaware corporation with its principal place of business
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`in Colorado. (Id. ¶ 3.)
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`21.
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`If liability is imposed and damages are awarded in this case (which is contested),
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`Plaintiffs allege “they are seeking monetary relief over $1,000,000.” (Id. ¶ 32.)
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`22.
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`Based on the foregoing, the Petition demonstrates that the amount-in-controversy
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`exceeds the sum or value of $75,000.00 and is between the citizens of different states as required
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`under 28 U.S.C. § 1332.
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`B.
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`Federal Question Jurisdiction Exists Over This Dispute.
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`23.
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`This Court also has federal question jurisdiction under 28 U.S.C. § 1331 and Grable
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`& Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005). Plaintiffs’ state-law
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`claims “necessarily raise a stated federal issue, actually disputed and substantial, which a federal
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`forum may entertain without disturbing any congressionally approved balance of federal and state
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`judicial responsibilities.” Gunn v. Minton, 568 U.S. 251, 258 (2013) (citing Grable, 545 U.S. at
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`314). “Where all four of these requirements are met . . . jurisdiction is proper because there is a
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`‘serious federal interest in claiming the advantages thought to be inherent in a federal forum.’”
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`Gunn, 568 U.S. at 258 (quoting Grable, 545 U.S. at 313–14).
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`24.
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`One essential question is embedded in each of Plaintiffs’ claims: In the midst of a
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`presidentially declared national emergency, how must America’s meat processing facilities
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`balance the interests of safeguarding workplace health and safety with their ongoing obligation to
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`feed the American people? Any duty ascribed to Pilgrim’s unavoidably implicates President
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`Trump’s explicit directive regarding the safe operation of meat processing facilities during the
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`pandemic, as well as federal policies governing the nation’s food supply, national security, and
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`economy. See Exec. Order No. 13917, “Delegating Authority Under the Defense Production Act
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`With Respect to Food Supply Chain Resources During the National Emergency Caused by the
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`Outbreak of COVID-19,” 85 Fed. Reg. 26313 (Apr. 28, 2020) (“Food Supply Chain Order”)
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`(invoking authority under the Defense Production Act, 50 U.S.C. § 4501 et seq.). All four of the
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`Grable factors are satisfied here because the remedy Plaintiffs seek threatens to interfere with
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`federal policies over matters of uniquely national importance.
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`i.
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`Plaintiffs’ Claims Necessarily Raise A Federal Issue.
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`25.
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`The Supreme Court has “recognized for [more than] 100 years that in certain cases
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`federal question jurisdiction will lie over state-law claims that implicate significant federal issues.”
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`Grable, 545 U.S. at 312. Federal question jurisdiction may arise from an issue “embedded” in
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`state-law claims, and does not require an asserted statutory violation. See id. at 316–19.
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`26.
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`The exercise of jurisdiction is warranted in a variety of contexts where the
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`application of state law may interfere with a federal interest in “getting the Government’s work
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`done.” See Boyle v. United Techs. Corp., 487 U.S. 500, 505, 509 (1988). In keeping with this
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`principle, courts have recognized such supervening federal interests in an array of cases, including
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`those that concern the design and procurement of military equipment,1 responding to national
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`emergencies,2 and ensuring the integrity of interstate waterways.3
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`27.
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`The Food Supply Chain Order dispels any doubt that a unique federal interest is
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`implicated here. Pilgrim’s supplies “a scarce and critical material essential to the national
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`defense,” as defined by the Defense Production Act of 1950. See 85 Fed. Reg. 26313, 26313 (meat
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`and poultry suppliers constitute “critical infrastructure during the national [COVID-19]
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`emergency”). Indeed, Plaintiffs concede that Pilgrim’s “distributes chicken and chicken products
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`under various brands.” (Pet. ¶ 9.)
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`See Boyle, 487 U.S. at 505, 509 (finding a “uniquely federal interest” in contracts for military helicopters);
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`see also Scrogin v. Rolls-Royce Corp., No. 3:10-CV-442, 2010 WL 3547706, at *3 (D. Conn. Aug. 16, 2010) (denying
`motion to remand under Grable where military helicopters contract implicated a “uniquely federal interest”);
`McMahon v. Pres. Airways, Inc., 410 F. Supp. 2d 1189 (M.D. Fla 2006).
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`See In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 197 (2d Cir. 2008) (extending Boyle’s rationale
`“to the disaster relief context due to the unique federal interest in coordinating federal disaster assistance and
`streamlining the management of large-scale disaster recovery projects”).
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`Illinois v. City of Milwaukee, 406 U.S. 91, 105 (1972) (pollution in interstate streams).
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`28.
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`Plaintiffs seeks to impose liability based on Pilgrim’s alleged failure to mitigate the
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`risk of COVID-19 transmission at a meat processing plant—precisely the conduct governed by the
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`Food Supply Chain Order. (Compare id. ¶ 30 (‘Pilgrim’s breached its duties to Maria Hernandez
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`by sending her to work in a known ‘hot spot’ for COVID-19 without warning or adequate
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`protection and without taking reasonable steps to render the area safe”), with 85 Fed. Reg. 26313,
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`26313 (ordering meat processors “continue operations consistent with the guidance for operations
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`jointly issued by the CDC and OSHA” in light of the “dramatic toll” taken by “necessary mitigation
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`measures”).)
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`29.
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`Thus, a state court’s application of any standard of conduct on a meat processing
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`facility contrary to that imposed by the federal government may compromise a unique federal
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`interest and frustrate the government’s capacity to impose a uniform rule. Cf. Rural Cmty. Workers
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`All. v. Smithfield Foods, Inc., No. 5:20-cv-06063, 2020 WL 2145350, at *8 (W.D. Mo. May 5,
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`2020) (recognizing that referring a plaintiff’s tort claims against a meat processing plant to OSHA
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`is necessary to “ensure uniform national enforcement of the Joint [CDC and OSHA] Guidance”).
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`ii. The Federal Issues Are Actually Disputed.
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`30.
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`In addition to identifying the “presence of a federal issue,” the proponent of federal
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`jurisdiction must also demonstrate “an actual disagreement about an interpretation of federal law
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`that is material to the claims at issue.” See Merrell Dow Pharm. v. Thompson, 478 U.S. 804, 813
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`(1986) (emphasis added). Plaintiffs’ claims include allegations that contradict federal policy or
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`regulations. Accordingly, they necessarily raise a disputed federal issue which warrants the
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`exercise of federal question jurisdiction. See McKay v. City & Cty. of San Francisco, No. 16-CV-
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`03561, 2016 WL 7425927, at *4 (N.D. Cal. Dec. 23, 2016); Bader Farms, Inc. v. Monsanto Co.,
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`2017 WL 633815, at *3 (E.D. Mo. Feb. 16, 2017).
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`31.
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`Plaintiffs’ claims are directly opposed to the federal government’s actions and
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`directives. For example, Plaintiffs allege Pilgrim’s was negligent for failing to close the Pilgrim’s
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`plant, even temporarily. (Pet. ¶ 8 (“While other employers shut down facilities experiencing
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`outbreaks – even if only temporarily to allow deep cleaning – as of the time of Ms. Hernandez’s
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`death Pilgrim’s had refused to shut down even 48 hours for additional cleaning.”); see also ¶¶ 24-
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`30.) In contrast, the Food Supply Chain Order enjoins meat processing facilities to remain open.
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`85 Fed. Reg. 26313, 26313 (“It is important that processors of beef, pork, and poultry … in the
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`food supply chain continue operating and fulfilling orders to ensure a supply of protein for
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`Americans.”); id. (ordering the Secretary of Agriculture to “take all appropriate actions … to
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`ensure that meat and poultry processors continue operations”).
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`iii. There Is a Substantial Federal Issue.
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`32.
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`A federal issue is “substantial” if it “indicat[es] a serious federal interest in claiming
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`the advantages thought to be inherent in a federal forum.” Grable, 545 U.S. at 313. The Court
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`must assess whether the federal government has a “strong interest” in the federal issue at stake,
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`and whether allowing state courts to resolve the issue will “undermine ‘the development of a
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`uniform body of [federal] law.’” Grable, 569 U.S. at 260–61 (citation omitted).
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`33.
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`The Food Supply Chain Order explicitly confirms a substantial federal interest in
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`creating a uniform standard of conduct for the meat processing industry during the national
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`emergency, in light of an emerging patchwork of contradictory state rules. See 85 Fed. Reg. 26313
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`(federal authority invoked because reductions in processing capacity and/or state actions that have
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`led to the closure of some facilities “may differ from or be inconsistent with interim guidance
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`recently issued”); see also Bd. of Comm’rs of Se. La. Flood Prot. Auth.-E. v. Tenn. Gas Pipeline
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`Co., 850 F.3d 714, 724 (5th Cir. 2017) (“the case affects ‘an entire industry’ rather than a few
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`parties”).
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`iv. This Court’s Determination Will Not Disturb the Balance of State and Federal
`Judicial Responsibilities.
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`Finally, courts must consider whether the exercise of federal question jurisdiction
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`34.
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`under Grable would “materially affect, or threaten to affect, the normal currents of litigation,”
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`such that a “flood of cases” would result on the federal docket. See Grable, 545 U.S. at 319;
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`Clauer v. Heritage Lake Homeowners Ass’n, Inc., No. 4:09-cv-560, 2010 WL 446545 at *4 (E.D.
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`Tex. Feb. 3, 2010). The narrowly rendered directive in the Food Supply Chain Order, limited to
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`just meat and poultry business practices during the COVID-19 pandemic, allays concern about a
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`“flood of cases” and weighs in favor of jurisdiction. Accordingly, this Court’s determination of
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`the substantial and disputed federal issues at the heart of this case would not “disturb[] any
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`congressionally approved balance of federal and state judicial responsibilities.” Grable at 314.
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`C.
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`Additional Information Required by Local Rule CV-81
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`35.
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`The information required by L.R. CV-81(c)(1):
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`Plaintiffs: Jose Manuel Requena and Oscar Requena, individually and on
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`behalf of the Estate of Maria Hernandez
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`Defendant: Pilgrim’s Pride Corporation
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`Status of the removed case: Pending
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`36.
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`The information required by L.R. CV-81(c)(2)
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`See Exhibit A accompanying this filing.
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`37.
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`The information required by L.R. CV-81(c)(3):
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`Plaintiffs’ Counsel:
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`Jim Hart, Esq.
`Texas State Bar No. 09147400
`William Langley, Esq.
`Texas State Bar No. 24102061
`WILLIAMS HART BOUNDAS EASTERBY, LLP
`8441 Gulf Freeway, Suite 600
`Houston, Texas 77017-5001
`Tel: (713) 230-2326
`Fax: (713) 643-6226
`Email: PIDept@whlaw.com
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`George Chandler, Esq.
`Texas State Bar No. 04094000
`P.O. Box 340
`Lufkin, Texas 75902-0340
`Tel: (936) 632-7778
`Fax: (936) 632-1304
`Email: gchandler@cmzlaw.net
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`Defendant’s Counsel:
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`Clayton E. Bailey, Esq.
`Texas State Bar No. 00796151
`Benjamin L. Stewart, Esq.
`Texas State Bar No. 24046917
`BAILEY BRAUER PLLC
`Campbell Centre I
`8350 N. Central Expressway, Suite 650
`Dallas, Texas 75206
`(214) 360-7433
`(214) 360-7435 (fax)
`cbailey@baileybrauer.com
`bstewart@baileybrauer.com
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`The information requested by LR CV-81(c)(4):
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`Plaintiffs requested a jury trial in the state court.
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`38.
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`39.
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`The information requested by LR CV-81(c)(5):
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`217th Judicial District Court
`Angelina County Courthouse
`215 East Lufkin Avenue
`Lufkin, Texas 75902
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`Mailing address:
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`P.O. Box 908
`Lufkin, Texas 75902
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`IV. CONCLUSION
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`40.
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`As demonstrated herein, removal of this dispute to this Court is proper because this
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`Court would have had original jurisdiction of this matter under 28 U.S.C. §§ 1331 and/or 1332.
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`Diversity jurisdiction exists because there is complete diversity of citizenship between Plaintiffs
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`and Pilgrim’s and the amount-in-controversy exceeds the sum or value of $75,000.00, exclusive
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`of interest and costs.
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`41.
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`Additionally, federal question jurisdiction exists because the Petition’s allegations
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`and controlling law demonstrate that Plaintiffs’ claims arise under the Constitution, laws, or
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`treaties of the United States.
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`42.
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`Finally, to the extent that the above bases for federal jurisdiction do not extend to
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`one or more of Plaintiffs’ claims, this Court has supplemental jurisdiction over such claim or
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`claims pursuant to 28 U.S.C. § 1367.
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`Case 9:20-cv-00147 Document 1 Filed 07/02/20 Page 11 of 11 PageID #: 11
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`Dated: July 2, 2020.
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`Respectfully submitted,
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`/s/ Clayton E. Bailey
`Clayton E. Bailey, Lead Attorney
`Texas State Bar No. 00796151
`Benjamin L. Stewart
`Texas State Bar No. 24046917
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`BAILEY BRAUER PLLC
`Campbell Centre I
`8350 N. Central Expressway, Suite 650
`Dallas, Texas 75206
`(214) 360-7433
`(214) 360-7435 (fax)
`cbailey@baileybrauer.com
`bstewart@baileybrauer.com
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`ATTORNEYS FOR DEFENDANT
`PILGRIM’S PRIDE CORPORATION
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically on July 2,
`2020. As such, this document was served on all counsel of record who are deemed to have
`consented to electronic service. Additionally, a copy of this document was served by email and
`U.S. First Class Mail to Plaintiffs’ counsel, as reflected below:
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`/s/ Clayton E. Bailey
`Counsel for Pilgrim’s Pride Corporation
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`Jim Hart, Esq.
`William Langley, Esq.
`Williams Hart Boundas Easterby, LLP
`8441 Gulf Freeway, Suite 600
`Houston, Texas 77017-5001
`Email: PIDept@whlaw.com
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`George Chandler, Esq.
`P.O. Box 340
`Lufkin, Texas 75902-0340
`Email: gchandler@cmzlaw.net
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