Case 9:20-cv-00184-RC-ZJH Document 1 Filed 08/28/20 Page 1 of 19 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
`
`
`
`§
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`Rolandette Glenn; Idell Bell;
`§
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`Kerry Cartwright; Tammy
`§
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`Fletcher; Laveka Jenkins;
`Kiesha Johnson; Ronald Johnson; §
`Daisy Williams; Danica Wilson;
`§
`John Wyatt; Crystal Wyatt; and
`§
`Clifford Bell, Individually and
`§
`as Personal Representative of the
`§
`Estate of Beverly Whitsey,
`§
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`CIVIL ACTION NO.
`9:20-cv-00184
`
`
`
`
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`
`
`
`
`
`
`Plaintiffs,
`
`
`v.
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`Tyson Foods, Inc.; Jason Orsak;
`Erica Anthony; and Maria Cruz,
`
`
`Defendants.
`
`DEFENDANT TYSON FOODS INC.’S NOTICE OF REMOVAL
`Defendant Tyson Foods, Inc. (“Tyson”) removes the civil action styled “Rolan-
`
`dette Glenn, et al., v. Tyson Foods, Inc., et al.,” Case No. 20CV35275, from the 273rd
`Judicial District Court of Shelby County, Texas, to this Court under 28 U.S.C.
`§§ 1331, 1441, 1442, and 1446. This Court has subject matter jurisdiction, and the
`case is removable because:
`(1)
`Plaintiffs’ First Amended Petition (“Petition”) challenges actions taken
`by Tyson at the direction of a federal officer, for which Tyson will have
`a colorable federal defense (28 U.S.C. § 1442(a)(1)); and
`(2) The Petition raises substantial and disputed issues of federal law under
`the Defense Production Act that must be decided by a federal forum (28
`U.S.C. § 1331(a)(1)).
`
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`

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`Removal is timely. Tyson was added as a party to this case for the first time
`with the filing of the First Amended Petition that was served on Tyson on August 6,
`2020. This Notice is being filed within 30 days of service. See 28 U.S.C. § 1446(b)(1);
`Bd. of Regents of Univ. of Tex. Sys. v. Nippon Tel. & Tel. Corp., 478 F.3d 274, 278 (5th
`Cir. 2007).
`Tyson provides the following short and plain statement of the grounds for re-
`moval:
`
`BACKGROUND
`The United States continues to struggle with a global pandemic whose size and
`scope are without modern precedent. Millions have been infected with the novel coro-
`navirus, and more than 180,000 Americans have died of COVID-19. The economic
`fallout and human suffering resulting from the pandemic have been severe. This case
`is brought by a group of past and present Tyson employees who allege that they
`worked at a Tyson poultry-processing facility; that they contracted COVID-19 at
`work; and that they were harmed by the disease. In addition, a family member of one
`of those employees—Beverly Whitsey—alleges that she contracted the disease at
`work and later died of the disease. That death, and the harm caused to the thousands
`of individuals who have contracted COVID-19, is tragic.
`But Plaintiffs’ allegations—including allegations of willful misconduct directed
`not only against Tyson, but also against three Tyson employees—are inaccurate and
`incorrect. Tyson has worked hard from the earliest days of the pandemic to follow
`federal workplace guidelines and has invested millions of dollars to provide employ-
`ees with safety and risk-mitigation equipment. Tyson’s efforts to protect its workers
`while continuing to supply Americans with food in the face of the pandemic continue
`to this day.
`Removal is proper because federal court is the correct forum for resolving
`Plaintiffs’ claims. Plaintiffs allege that Tyson failed to safely operate its facility in
`
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`Center, Texas during the COVID-19 pandemic. But that facility was operating pur-
`suant to the President of the United States’ authority to order continued food produc-
`tion and under the direct supervision of the U.S. Secretary of Agriculture. As the
`President emphasized, “[i]t is important that processors of beef, pork, and poultry . .
`. in the food supply chain continue operating and fulfilling orders to ensure a contin-
`ued supply of protein for Americans,” and any “closures [of such facilities] threaten
`the continued functioning of the national meat and poultry supply chain” and “under-
`min[e] critical infrastructure during the national emergency.” Executive Order on
`Delegating Authority Under the DPA with Respect to Food Supply Chain Resources
`during the National Emergency Caused by the Outbreak of COVID-19 (“Food Supply
`Chain Resources”), 85 Fed. Reg. 26,313, 26,313, 2020 WL 2060381, at *1 (Apr. 28,
`2020).1 The President and the U.S. Secretary of Agriculture provided detailed instruc-
`tion for poultry-processing facilities to continue operating, incorporating industry-
`specific guidance from the Centers for Disease Control and Prevention (“CDC”) and
`the Occupational Safety and Health Administration (“OSHA”).
`Because Tyson was under a Presidential order to continue operations pursuant
`to the supervision of the federal government and pursuant to federal guidelines and
`directives, including directives from the Secretary of Agriculture and guidance from
`the CDC and OSHA, federal court is the proper forum for resolving this case.
`ARGUMENT
`Federal officer removal is proper under 28 U.S.C. § 1442(a)(1).
`I.
`Under 28 U.S.C. § 1442(a)(1), a civil action may be removed to federal court if
`
`the action is asserted against a person acting under the direction of a federal officer:
`
`
`1 https://www.whitehouse.gov/presidential-actions/executive-order-delegating-au-
`thority-dpa-respect-food-supply-chain-resources-national-emergency-caused-out-
`break-covid-19/.
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`3
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`A civil action . . . that is against or directed to any of the following
`may be removed . . . :
`(1) The United States or any agency thereof or any officer (or any
`person acting under that officer) of the United States or of any
`agency thereof, in an official or individual capacity, for or relating
`to any act under color of such office . . . .
`28 U.S.C. § 1442(a)(1) (emphasis added).
`Here, federal officer removal is proper because (1) Tyson “is a ‘person’ within
`the meaning of the statute,” (2) Tyson “has acted pursuant to a federal officer’s direc-
`tions,” (3) “the charged conduct is connected or associated with an act pursuant to a
`federal officer’s directions[,]” and (4) Tyson “has asserted a colorable federal de-
`fense[.]” Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020) (en
`banc).2
`Tyson is a “person.” Tyson is a “person” under 28 U.S.C. § 1442 because the
`term includes both “private persons and corporate entities.” Savoie v. Huntington
`Ingalls, Inc., 817 F.3d 457, 461 (5th Cir. 2016), overruled on other grounds by, La-
`tiolais, 951 F.3d 286 (citations omitted).
`
`Federal Direction. On March 13, 2020, the President declared “a National
`Emergency in response to the COVID-19 outbreak.” Exec. Office of Pres., Declaring a
`National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Out-
`break, 85 Fed. Reg. 15,337, 15,337, 2020 WL 1227639 (Mar. 13, 2020). Soon after, on
`March 16, the President issued “Coronavirus Guidelines” emphasizing that employ-
`ees in “critical infrastructure industr[ies]”—including companies like Tyson that are
`
`
`2 Because Tyson is entitled to remove this case under 28 U.S.C. § 1442(a)(1), “the
`entire case [is] deemed removable, such that [Plaintiffs’] claims against all other de-
`fendants . . . will be heard in federal court as well.” Morgan v. Huntington Ingalls,
`Inc., 879 F.3d 602, 606 (5th Cir. 2018); see also Wright & Miller, 14C Fed. Prac. &
`Proc. § 3726 (Rev. 4th ed.) (“Because Section 1442(a)(1) authorizes removal of the
`entire action even if only one of the controversies it raises involves a federal officer or
`agency, the section creates a species of statutorily-mandated supplemental subject-
`matter jurisdiction.”).
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`essential to maintaining food-supply chains and ensuring the continued health and
`safety of all Americans—have a “special responsibility to maintain [their] normal
`work schedule.” Exec. Office of Pres., The President’s Coronavirus Guidelines for
`America at 2 (Mar. 16, 2020).3 On March 25, President Trump approved a major dis-
`aster declaration for the State of Texas in response to the COVID-19 outbreak. Exec.
`Office of Pres., President Donald J. Trump Approves Texas Disaster Declaration
`(Mar. 25, 2020).4
`On April 28, consistent with the directions in March and because of attempts
`by localities to countermand federal directions, President Trump issued an executive
`order. This time expressly invoking his authority under the Defense Production Act
`(“DPA”), 50 U.S.C. §§ 4501 et seq,, the President again instructed Tyson and other
`meat and poultry processing companies to stay open and continue operations, subject
`to the supervision of the Secretary of Agriculture. See Food Supply Chain Resources,
`85 Fed. Reg. at 26,313, 2020 WL 2060381, at *1. The executive order states in rele-
`vant part:
`
`It is important that processors of beef, pork, and poultry (“meat
`and poultry”) in the food supply chain continue operating and
`fulfilling orders to ensure a continued supply of protein for
`Americans. [R]ecent actions in some States have led to the com-
`plete closure of some large processing facilities.
`*
`*
`*
`Such closures threaten the continued functioning of the na-
`tional meat and poultry supply chain, undermining critical infra-
`structure during the national emergency.
`
`
`3 https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-
`guidance_8.5x11_315PM.pdf.
` 4 https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-ap-
`proves-texas-disaster-declaration-6/#:~:text=Today%2C%20President%20Don-
`ald%20J.,20%2C%202020%2C%20and%20continuing.
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`*
`*
`*
`[T]he Secretary of Agriculture shall take all appropriate action
`. . . to ensure that meat and poultry processors continue
`operations consistent with the guidance for their operations
`jointly issued by the CDC and OSHA.
`Id. (emphases added).
`
`Consistent with the Food Supply Chain Resources executive order, the U.S.
`Secretary of Agriculture Sonny Perdue then promptly issued two letters: one to meat
`and poultry processors directing them how to proceed, and one to state and local offi-
`cials across the nation informing them of the Secretary’s actions and their obligation
`to work with the Secretary to ensure meat processing companies’ compliance with the
`Secretary’s directives. See U.S. Dep’t of Agriculture, Press Release No. 0243.20 (May
`6, 2020) (announcing that the Secretary had issued a “Letter to Governors” and “Let-
`ter to Stakeholders”). Secretary Perdue’s Letter to Stakeholders emphasized that the
`“Nation’s meat and poultry processing facilities and workers play an integral role in
`the continuity of our food supply chain.” U.S. Dep’t of Agriculture, Letter to Stake-
`holders (May 5, 2020).5 And, relevant here, Secretary Perdue’s Letter to Governors
`states:
`
`Effective immediately, I have directed meat and poultry
`processors to utilize the guidance issued on Sunday, April
`26, 2020, by CDC and OSHA specific to the meat and poultry
`processing industry to implement practices and protocols for
`staying operational or resuming operations while safeguarding
`the health of the workers and the community.
`*
`*
`*
`The U.S. Department of Agriculture (USDA) has also directed
`meat and poultry processing plants currently closed and
`without a clear timetable for near-term reopening to submit to
`USDA written documentation of their protocol, developed based
`on the CDC/OSHA guidance, and resume operations as soon
`
`
`5 https://www.usda.gov/sites/default/files/documents/stakeholder-letters-covid.pdf.
`
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`as they are able after implementing the CDC/OSHA guidance
`for the protection of workers.
`U.S. Dep’t of Agriculture, Letter to Governors (May 5, 2020) (emphases added)6; see
`also U.S. Dep’t of Agriculture, Letter to Stakeholders (May 5, 2020).
`
`The U.S. Department of Agriculture also entered into a Memorandum of Un-
`derstanding with the U.S. Food and Drug Administration (“FDA”) setting forth the
`respective roles of each agency in utilizing the DPA to regulate food producers during
`the COVID-19 outbreak. See Memorandum of Understanding Between FDA and
`USDA Regarding the Potential Use of the Defense Production Act with Regard to FDA-
`Regulated Food During the COVID-19 Pandemic (May 18, 2020).7 Notably, the agree-
`ment reiterated that “actions by States or localities could lead to the closure of food
`resource facilities”; such closures “could threaten the continued functioning of the
`national food supply chain, undermining critical infrastructure during the national
`emergency”; and the Department of Agriculture retained “exclusive delegated author-
`ity” under the DPA to issue orders regarding domestic food producers. Id. at 1–2, 4
`(emphasis added).
`Accordingly, Tyson’s facilities—including the Center facility—were operating
`as critical infrastructure of the United States that had been instructed by the Presi-
`dent to continue operations both before and after the Food Supply Chain Resources
`executive order and the Secretary of Agriculture’s related orders. As such, Tyson was
`“acting under the direction of a federal officer,” 28 U.S.C. § 1442(a)(1), and “helping
`the Government to produce an item that it needs” for the national defense under the
`DPA, Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 153 (2007); see also
`Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482, 486-87 (1st Cir.
`1989) (holding that “the reach of section 1442(a)(1) extends to private persons . . . who
`
`
`6 https://www.usda.gov/sites/default/files/documents/governor-letters-covid.pdf.
`7 https://www.usda.gov/sites/default/files/documents/mou-between-fda-usda-dpa.pdf.
`
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`7
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`act under the direction of federal officers,” including companies ordered to “facilitate”
`or “offe[r] technical assistance” to federal agents exercising statutory authority).
`Consistent with the finding of federal officer removal in Winters v. Diamond
`Shamrock Chemical Co., 149 F.3d 387 (5th Cir. 1998), the federal government here
`(1) provided “detailed specifications” governing Tyson’s ongoing operations—through
`the President’s direction that the CDC and OSHA guidelines would govern those op-
`erations, and promulgation of exceedingly detailed guidelines specific to meat and
`poultry processors by the CDC and OSHA—and (2) exercised “ongoing supervision”
`of those operations through the Secretary of Agriculture, who was delegated power
`by the President to “take all appropriate action . . . to ensure that meat and poultry
`processors continue operations consistent with the guidance for their operations
`jointly issued by the CDC and OSHA.” 85 Fed. Reg. at 26,313, 2020 WL 2060381, at
`*1.
`The Petition challenges Tyson’s decision to continue allowing employees to
`
`work at the Center facility and the various measures that were taken at the facility.
`(See, e.g., Petition ¶¶ 24 (“Despite [Texas’s] stay-at-home order, Plaintiffs were re-
`quired to continue working at the Tyson meatpacking plant in Center, Texas[.]”), 31
`(alleging that Tyson “[f]ailed to provide adequate PPE,” “implement adequate pre-
`cautions,” and “follow guidelines set forth by the WHO and CDC”)) But those alleged
`actions were taken pursuant to the authority, orders, detailed regulation, and super-
`vision of the President and Secretary of Agriculture under the DPA. Tyson was there-
`fore “acting under” federal officers, and is therefore entitled to have this case heard
`in federal court. 28 U.S.C. § 1442(a)(1).
`Connection or Association. There is a direct connection between the Petition’s
`allegations and the actions Tyson took at the direction of the President and Secretary
`of Agriculture. As noted above, the Petition alleges that Tyson is liable in tort for
`adopting or allegedly failing to adopt specific measures in response to the
`
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`coronavirus. (See, e.g., Petition ¶¶ 25, 31(a)–(i)) But the measures that Tyson took
`were implemented at the express direction of federal officers. And any dispute about
`the scope of Tyson’s authority to implement those measures under the federal direc-
`tives “is one for the federal—not state—courts to answer.” Isaacson v. Dow Chem.
`Co., 517 F.3d 129, 138 (2d Cir. 2008) (federal courts must resolve “whether the chal-
`lenged act was outside the scope of Defendants’ official duties, or whether it was spe-
`cifically directed by the federal Government”) (citing Willingham v. Morgan, 395 U.S.
`402, 409 (1969)). Likewise, the Petition implicitly challenges Tyson’s decision to con-
`tinue operating the Center facility at all, (¶¶ 24–25, 31(b)), even though federal offic-
`ers directed Tyson to continue operations and emphasized that meat-processing “fa-
`cilities and workers play an integral role in the continuity of our food supply chain.”
`U.S. Dep’t of Agriculture, Letter to Stakeholders (May 5, 2020). Thus, the Petition’s
`allegations are “connected or associated with” Tyson’s actions taken “pursuant to a
`federal officer’s directions.” Latiolais, 951 F.3d at 296.
`Colorable Federal Defenses. Tyson has at least the following federal defenses
`
`to the claims in the Petition.
`• Express preemption under the Poultry Products Inspection Act of 1957
`(“PPIA”). The PPIA’s express preemption clause preempts state-law require-
`ments that are “in addition to” or “different from” the rigorous and extensive fed-
`eral requirements under the PPIA. See 21 U.S.C. § 467e; see also 9 C.F.R. § 416.5(c)
`(setting federal requirements under the PPIA regarding cleanliness, protective at-
`tire, and “disease control”). This provision is “substantially identical” to the
`preemption provision in the Federal Meat Inspection Act, Grocery Mfrs. Ass’n of
`Am. v. Gerace, 755 F.2d 993, 997 (2d Cir. 1985) (citing 21 U.S.C. § 678), which the
`Supreme Court has noted “sweeps widely” and “prevents a State from imposing
`any additional or different—even if non-conflicting—requirements that fall within
`the scope of the Act and concern a slaughterhouse’s facilities or operations.” Nat’l
`
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`Meat Ass’n v. Harris, 565 U.S. 452, 459-60 (2012). Plaintiffs here would use state
`tort law to impose additional and different requirements.
`• Preemption under the DPA and the Executive Order. Plaintiffs’ claims are
`also preempted by the DPA and the President’s Food Supply Chain Resources ex-
`ecutive order and related federal directions. Congress enacted the DPA to preserve
`“the security of the United States” by ensuring “the ability of the domestic indus-
`trial base to supply materials and services for the national defense and to prepare
`for and respond to . . . natural or man-caused disasters.” 50 U.S.C. § 4502(a)(1). The
`DPA grants the President wide latitude to “take appropriate steps” to maintain
`and enhance the “domestic critical infrastructure” threatened by “emergency con-
`ditions.” Id. §§ 4502(a)(2)(C), (4). This broad grant of authority preempts any at-
`tempt by a state to impose its own regulations on “domestic critical infrastructure”
`industries when the President has done so under the DPA, 50 U.S.C.
`§ 4502(a)(2)(C); see also Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 376
`(2000), and provides defenses against suits like this for actions taken in compliance
`with orders issued under the DPA. The Petition here seeks to impose state regula-
`tion that conflicts with the President’s express directives under the DPA requiring
`Tyson to assist the nation during a national disaster by (1) continuing to operate
`(2) pursuant to federal operational requirements.
`The Court also has federal question jurisdiction.
`II.
`This case is properly removed under 28 U.S.C. § 1331 because it “aris[es] un-
`
`der” federal law. See Bd. of Comm’rs of Se. La. Flood Prot. Auth.-E. v. Tennessee Gas
`Pipeline Co., L.L.C., 850 F.3d 714, 721 (5th Cir. 2017). Although Plaintiffs’ causes of
`action are styled as state-law claims, this Court has federal question jurisdiction be-
`cause the claims (1) “necessarily” raise an issue of federal law that is (2) “actually
`disputed” and (3) “substantial,” (4) “which a federal forum may entertain without dis-
`turbing any congressionally approved balance of federal and state judicial
`
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`responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S.
`308, 314 (2005); see also Wullschleger v. Royal Canin U.S.A., Inc., 953 F.3d 519, 521
`(8th Cir. 2020) (removal proper where claims pleaded under state law “implicat[es] a
`disputed and substantial federal issue”).
`
`Federal issues are necessarily raised. The Petition necessarily raises multi-
`ple, substantial federal issues. The entire thrust of the Petition is that Tyson should
`not have complied with express federal directives related to the national defense—
`i.e., should have stopped employees from continuing to work at the facility (see Peti-
`tion ¶¶ 24, 31(b)); should have taken more or different measures than were mandated
`by the federal directives (e.g., id. ¶¶ 25, 31(c)–(d), (f)–(i)); or failed to comply with
`federal law by allegedly failing to take certain precautions (e.g., id. ¶ 31(e)). None of
`these claims can “be resolved without a determination” and “construction of [the] fed-
`eral law[s]” under which Tyson was operating. Bd. of Comm’rs of Se. La. Flood Prot.
`Auth.-E., 850 F.3d at 723. To the contrary, these federal issues are plainly and nec-
`essarily raised by the Petition (e.g., ¶ 31(e) (alleging Tyson “[f]ailed to follow guide-
`lines set forth by the . . . CDC”)), and they permeate every aspect of Plaintiffs’
`claims—from the equipment Tyson allegedly provided (e.g., id. ¶¶ 31(c)–(e) (challeng-
`ing Tyson’s provision of PPE, implementation of social distancing, and failure to fol-
`low CDC guidelines)), to Tyson’s continued operation despite local authorities impos-
`ing a stay-at-home order (e.g., id. ¶¶ 24 (challenging Tyson’s alleged requirement that
`Plaintiffs “continue working” “[d]espite the [Texas] stay-at-home order”), 31(b) (alleg-
`ing that “it was no longer safe” to work at the facility)).
`It “would be impossible to determine whether [Tyson] breached” a duty to
`Plaintiffs “without deciding whether [Tyson’s] actions were governed by a valid” di-
`rective from the federal government. Hughes v. Chevron Phillips Chem. Co. LP, 478
`F. App’x 167, 170 (5th Cir. 2012). Having elected to employ federal law “as the basis
`
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`for [state] tort liability[,]” Plaintiffs cannot avoid this Court’s jurisdiction. Bd. of
`Comm’rs of Se. La. Flood Prot. Auth.-E., 850 F.3d at 723.
`Although Plaintiffs have “tried to frame [their] claims as sounding only in state
`law,” (e.g., Petition ¶ 5 (asserting that “this case is not removable because Plaintiffs
`have not made any federal claims”)), Plaintiffs “may not defeat removal by omitting
`to plead necessary federal questions in the complaint.” Hughes, 478 F. App’x at 171
`(quoting Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S.
`California, 463 U.S. 1, 22 (1983)). Plaintiffs’ studious avoidance of explicit reference
`to federal law is irrelevant because “any judicial consideration of [Plaintiffs’] claims
`necessarily implicates substantial questions of federal law.” Id.
`The federal issues are “substantial.” The Petition implicates federal impera-
`tives of the highest and broadest importance: coordination of national disaster relief
`and the maintenance of infrastructure “essential to the national defense.” 50 U.S.C.
`§ 4511(b); see also Scrogin v. Rolls-Royce Corp., No. 3:10cv442 (WWE), 2010 WL
`3547706, at *3 (D. Conn. Aug. 16, 2010) (“[P]laintiffs’ state tort claims give rise to
`serious federal interests in the government procurement contract and military oper-
`ations.”); McMahon v. Presidential Airways, Inc., 410 F. Supp. 2d 1189, 1201–02
`(M.D. Fla. 2006) (holding that “the federal issues [were] quite substantial” where na-
`tional defense and procurement were implicated).
`
`Moreover, “the validity of [Plaintiffs’] claims would require that conduct sub-
`ject to an extensive federal . . . scheme is in fact subject to implicit restraints that are
`created by state law.” Bd. of Comm’rs of Se. La. Flood Prot. Auth.-E., 850 F.3d at 724.
`The “implications for the federal regulatory scheme” of such liability—particularly
`where the federal scheme relates to critical infrastructure during a national emer-
`gency—“would be significant[.]” See id.; Xitronix Corp. v. KLA-Tencor Corp., 916 F.3d
`429, 441 (5th Cir.), cert. denied, 140 S. Ct. 110, 205 L. Ed. 2d 25 (2019) (noting that
`the substantiality requirement is satisfied where a case “put[s] the legality of a
`
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`federal action in question, in a manner that would have broader ramifications for the
`legal system”). Thus, there is a “serious federal interest in claiming the advantages
`thought to be inherent in a federal forum” for these claims. Grable, 545 U.S. at 313;
`see also Rose v. SLM Fin. Corp., Civil Action No. 3:05CV445, 2007 WL 674319, at *4
`(W.D.N.C. Feb. 28, 2007) (“Where a federal regulatory scheme requires private par-
`ties to undertake certain actions in order to comply with the law, the federal courts
`necessarily have a serious interest in examining the scope of liability that might arise
`as a result.”).
`
`Actual dispute. The federal interests are also actually disputed. See Bd. of
`Comm’rs of Se. La. Flood Prot. Auth.-E., 850 F.3d at 723 (finding federal issues actu-
`ally in dispute where the parties disagreed as to whether the defendants complied
`with federal law). The Petition seeks to impose state-law liability on Tyson for actions
`taken pursuant to federal statutes and orders, and the Petition’s overarching theory
`is that Tyson allegedly failed to comply with federal guidance in some respects and
`should have exceeded (or otherwise deviated from) federal guidance in other respects.
`These issues—what was required under the federal orders and whether states can
`override the federal orders—constitute the central dispute in this case.
`
`Balance of responsibilities. Finally, exercising jurisdiction over this case
`will not disturb—and, in fact, will preserve—the congressionally approved balance of
`federal and state judicial responsibilities. As explained above, through the DPA, Con-
`gress delegated to the President “an array of authorities” to “take appropriate steps
`to maintain” critical infrastructure—because the “national defense” and “security of
`the United States” depend upon it. 50 U.S.C. §§ 4502(a)(1), (4). Accordingly, there is
`a “clear interest” in “the availability of a federal forum” for this case, which directly
`challenges the President’s orders under the DPA. Grable, 545 U.S. at 319; see also
`Bd. of Comm’rs of Se. La. Flood Prot. Auth.-E., 850 F.3d at 725 (holding that jurisdic-
`tion was appropriate because “the scope and limitations” of a federal framework were
`
`
`
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`Case 9:20-cv-00184-RC-ZJH Document 1 Filed 08/28/20 Page 14 of 19 PageID #: 14
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`at stake, and deciding “whether that framework may give rise to state law claims as
`an initial matter will ultimately have implications for the federal docket one way or
`the other”). And exercising jurisdiction over Plaintiffs’ claims “would not materially
`affect, or threaten to affect, the normal currents of litigation,” Grable, 545 U.S. at
`319, given the “rare” circumstances here: the federal government directing a select
`group of critical companies’ operations to maintain the nation’s food supply during a
`global pandemic unprecedented for perhaps over a century.
`III. Tyson has satisfied the procedural requirements for removal.
`Venue is proper in this district under 28 U.S.C. §§ 124(c) and 1441(a) because
`the United States District Court for the Eastern District of Texas, Lufkin Division,
`embraces the county in which the state court action is now pending.
`A list of all parties in the case, their party type, and the current status of the
`removed case, per Local Rule CV-81(c)(1), follows:
`Rolandette Glenn is a Plaintiff; her case is pending.
`a)
`b)
`Idell Bell is a Plaintiff; her case is pending.
`c)
`Kerry Cartwright is a Plaintiff; her case is pending.
`d)
`Tammy Fletcher is a Plaintiff; her case is pending.
`e)
`Laveka Jenkins is a Plaintiff; her case is pending.
`f)
`Kiesha Johnson is a Plaintiff; her case is pending.
`g)
`Ronald Johnson is a Plaintiff; his case is pending.
`h)
`Daisy Williams is a Plaintiff; her case is pending.
`i)
`Danica Wilson is a Plaintiff; her case is pending.
`j)
`John Wyatt is a Plaintiff; his case is pending.
`k)
`Crystal Wyatt is a Plaintiff; her case is pending.
`l)
`Clifford Bell, Individually and as Personal Representative of the
`Estate of Beverly Whitsey, is a Plaintiff; his case is pending.
`Tyson Foods, Inc. is a Defendant; the case against it is pending.
`
`m)
`
`
`
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`Case 9:20-cv-00184-RC-ZJH Document 1 Filed 08/28/20 Page 15 of 19 PageID #: 15
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`
`
`
`
`
`
`(b)
`
`Jason Orsak is a Defendant; the case against him is pending.
`n)
`Erica Anthony is a Defendant; the case against her is pending.
`o)
`p) Maria Cruz is a Defendant; the case against her is pending.
`A complete list of attorneys involved in the action being removed, including
`
`each attorney’s bar number, address, telephone number, and party or parties repre-
`sented by that attorney, Local Rule, CV-81(c)(3), follows:
`a)
`Kurt Arnold (Texas Bar No. 24036150)
`Caj Boatright (Texas Bar No. 24036237)
`Roland Christensen (Texas Bar No. 24101222)
`Joseph McGowin (Texas Bar No. 24117268)
`Clair Traver (Texas Bar No. 24115871)
`ARNOLD & ITKIN LLP
`6009 Memorial Drive
`Houston, Texas 77007
`Telephone: 713.222.3800
`
`Counsel for Plaintiffs, Rolandette Glenn; Idell Bell; Kerry Cart-
`wright; Tammy Fletcher; Laveka Jenkins; Kiesha Johnson;
`Ronald Johnson; Daisy Williams; Danica Wilson; John Wyatt;
`Crystal Wyatt; and Clifford Bell, Individually and as Personal
`Representative of the Estate of Beverly Whitsey
`
`Christopher Hughes (Texas Bar No. 24074452)
`Don Wheeler (Texas Bar No. 21256200)
`WHEELER & HUGHES
`101 Tenaha Street
`P. O. Box 1687
`Center, Texas 75935
`Telephone: 936.598.2925
`
`Counsel for Plaintiffs, Rolandette Glenn; Idell Bell; Kerry Cart-
`wright; Tammy Fletcher; Laveka Jenkins; Kiesha Johnson;
`Ronald Johnson; Daisy Williams; Danica Wilson; John Wyatt;
`Crystal Wyatt; and Clifford Bell, Individually and as Personal
`Representative of the Estate of Beverly Whitsey
`
`Zachary T. Mayer (Texas Bar No. 24013118)
`J. Edward Johnson (Texas Bar No. 24070001)
`MAYER LLP
`750 N. St. Paul Street, Suite 700
`
`(c)
`
`
`
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`Case 9:20-cv-00184-RC-ZJH Document 1 Filed 08/28/20 Page 16 of 19 PageID #: 16
`
`Dallas, Texas 75201
`Telephone: 214.379.6900
`
`Counsel for Defendants Tyson Foods, Inc., Jason Orsak, Erica An-
`thony, and Maria Cruz
`Christopher S. Coleman (pro hac vice forthcoming)
`Perkins Coie LLP
`2901 N. Central Avenue, Suite 2000
`Phoenix, Arizona 85012
`Telephone: 602.351.8000
`
`(d)
`
`
`
`Mary Gaston (pro hac vice forthcoming)
`Perkins Coie LLP
`1201 Third Avenue, Suite 4900
`Seattle, Washington 98101-3099
`Telephone: 206.359.8000
`
`Counsel for Defendants Tyson Foods, Inc., Jason Orsak, Erica An-
`thony, and Maria Cruz
`The name and address of the court from which this case was removed follows:
`
`District Court of Shelby County, Texas, 273rd Judicial District, Shelby County Court-
`house, 200 Augustine St., Center, Texas 75935. Local Rule CV-