Case 9:20-cv-00184-RC-ZJH Document 6 Filed 09/04/20 Page 1 of 9 PageID #: 144
`
`CIVIL ACTION NO.
`9:20-cv-00184-RC-ZJH
`
`
`ROLANDETTE GLENN; IDELL
`BELL; KERRY CARTWRIGHT;
`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,
`
`Plaintiffs,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
`
`
`§
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`§
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`§
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`§
`
`v.
`
`TYSON FOODS, INC.; JASON
`ORSAK; ERICA ANTHONY; AND
`MARIA CRUZ,
`
`Defendants.
`
`
`
`DEFENDANTS JASON ORSAK, ERICA ANTHONY, AND MARIA
`CRUZ’S MOTION TO DISMISS AND/OR
`FOR JUDGMENT ON THE PLEADINGS
`
`Oral Argument Requested
`
`
`
`
`
`
`
`
`CIVIL ACTION NO.
`9:20-cv-00184-RC-ZJH
`
`
`ROLANDETTE GLENN; IDELL
`BELL; KERRY CARTWRIGHT;
`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,
`
`Plaintiffs,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`v.
`
`TYSON FOODS, INC.; JASON
`ORSAK; ERICA ANTHONY; AND
`MARIA CRUZ,
`
`Defendants.
`
`
`
`DEFENDANTS JASON ORSAK, ERICA ANTHONY, AND MARIA
`CRUZ’S MOTION TO DISMISS AND/OR
`FOR JUDGMENT ON THE PLEADINGS
`
`Oral Argument Requested
`
`
`
`
`
`
`
`
`Case 9:20-cv-00184-RC-ZJH Document 6 Filed 09/04/20 Page 2 of 9 PageID #: 145
`
`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`
`
`CASES
`Allen v. Walmart Stores, L.L.C.,
`907 F.3d 170 (5th Cir. 2018) .................................................................................... 5
`Carter v. H2R Rest. Holdings, LLC,
`No. 3:16-cv-1554-N-BN, 2017 WL 1653622 (N.D. Tex. Apr. 3, 2017) ..................... 5
`Ching Enters., Inc. v. Barahona,
`No. 01-07-00454-CV, 2008 WL 4006758 (Tex. Ct. App. Aug. 28, 2008) ................. 4
`Gen. Elec. Co. v. Moritz,
`257 S.W.3d 211 (Tex. 2008) ...................................................................................... 3
`In re Butt,
`495 S.W.3d 455 (Tex. Ct. App. 2016) ................................................................... 3, 5
`Leitch v. Hornsby,
`935 S.W.2d 114 (Tex. 1996) .......................................................................... 1, 2, 3, 4
`Torres v. Trans Health Mgmt., Inc.,
`509 F. Supp. 2d 628 (W.D. Tex. 2006) ..................................................................... 4
`
`
`
`
`
`Case 9:20-cv-00184-RC-ZJH Document 6 Filed 09/04/20 Page 3 of 9 PageID #: 146
`
`
`MOTION
`Defendants Jason Orsak, Erica Anthony, and Maria Cruz (collectively the
`“Employee Defendants”) join Tyson Foods, Inc.’s Motion to Dismiss, and respectfully
`request dismissal of the claims asserted against them on the grounds set forth in that
`motion.
`In addition, the Employee Defendants move for dismissal with prejudice under
`Rule 12(b)(6) and/or for judgment on the pleadings under Rule 12(c) on the additional
`ground that Texas law permits workplace safety claims to be asserted only against
`an employer, not against co-employees.
`
`INTRODUCTION AND STATEMENT OF ISSUES
`Plaintiffs allege that Tyson Foods, Inc. (“Tyson”) failed to provide a safe work
`environment at Tyson’s Center, Texas poultry processing facility. Under Texas law,
`that claim can only be alleged against Tyson itself—not against individual Tyson
`employees. See, e.g., Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996) (“When the
`employer is a corporation, the law charges the corporation itself, not the individual
`corporate officer, with the duty to provide the employee a safe workplace.”).
`Despite this clear rule, in a transparent attempt to defeat diversity jurisdiction,
`Plaintiffs have also asserted claims against three Tyson employees—Jason Orsak,
`Erica Anthony, and Maria Cruz. Those claims are improper under Texas law, and
`should be dismissed.
`
`BACKGROUND
`Plaintiffs filed this lawsuit in the District Court of Shelby County, Texas in June
`2020, originally naming only the Employee Defendants and alleging claims for
`negligence and gross negligence. [Dkt. 1-1] Plaintiffs later filed a First Amended
`Complaint and added Tyson as a defendant. [Dkt. 1-1] All Defendants then timely
`
`
`
`
`1
`
`
`
`Case 9:20-cv-00184-RC-ZJH Document 6 Filed 09/04/20 Page 4 of 9 PageID #: 147
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`
`removed to federal court based on federal officer and federal question jurisdiction.
`[Dkt. 1]
`The First Amended Complaint makes substantially identical allegations against
`Tyson and the Employee Defendants:
`
`Upon information and belief, Defendants Tyson, Inc.;
`Jason Orsak; Erica Anthony; and Maria Cruz failed to
`fulfill their
`job duties to provide a safe working
`environment to Plaintiffs. Defendants Orsak, and Anthony
`failed to issue masks to employees, institute six feet
`barriers between employees,
`limit contact between
`employees, and create rideshare alternatives to the Plant’s
`bus system. As a direct result of the negligence and gross
`negligence of Defendants, Plaintiffs contracted COVID-19
`at the Center, Texas meatpacking plant and has [sic]
`experienced significant injuries as a result.
`
`[Dkt 1-1 ¶ 26; see also id. ¶ 31 (alleging that “Defendants are negligent and grossly
`negligent for the following reasons”).] The First Amended Complaint likewise alleges
`that the alleged conduct at issue was “effectuated through both Tyson Foods and the
`named Defendants.” [Id. ¶ 29]
`Aside from allegations that identify names and job titles, the First Amended
`Complaint fails to assert any substantive allegations against the Employee
`Defendants that are not also asserted in identical terms against Tyson.
`
`ARGUMENT
`This case is not about any particular action taken by Jason Orsak, Erica
`Anthony, or Maria Cruz. Instead, Plaintiffs have asserted claims related to workplace
`safety and the duty to “provide a safe working environment.”
`Under Texas law, those claims cannot be asserted against the Employee
`Defendants. Instead, because workplace duties are “nondelegable” and belong “solely”
`to the employer, such claims can only be brought against Tyson. See, e.g., Leitch, 935
`
`
`
`
`2
`
`
`
`Case 9:20-cv-00184-RC-ZJH Document 6 Filed 09/04/20 Page 5 of 9 PageID #: 148
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`
`S.W.2d at 117 (“When the employer is a corporation, the law charges the corporation
`itself, not the individual corporate officer, with the duty to provide the employee a
`safe workplace.”); see also In re Butt, 495 S.W.3d 455, 467 (Tex. Ct. App. 2016)
`(holding that liability “cannot be imposed on employees where the employer and the
`employees committed the identical negligent acts or omissions”).
`The reason for this rule is simple: Texas law places responsibility for workplace
`safety on the company—but not on co-employees—to “ensure[] that the party with
`the duty is the one with the ability to carry it out.” Gen. Elec. Co. v. Moritz, 257 S.W.3d
`211, 216 (Tex. 2008).
`Applying these principles, Texas courts (and federal courts applying Texas law)
`routinely hold—on facts similar to this case—that individual co-employees cannot be
`liable where the duty alleged to have been breached is the duty to keep the workplace
`safe. See, e.g.:
` Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996).
`• In Leitch, the plaintiff sued his employer and two corporate officers,
`alleging that he was injured at work because “all three defendants did
`not provide a safe work place and equipment, did not provide proper
`equipment, did not provide a protective lift belt, and did not give safety
`instructions and training.” Id. at 116.
`• The Texas Supreme Court, reversing the lower court, held that the
`corporate employees “had no individual duty as corporate officers to
`provide [the plaintiff] with a safe workplace,” and therefore could not be
`liable as a matter of law. Id. at 118.
`• Instead, the Supreme Court clarified that the “duty to provide a safe
`workplace was a nondelegable duty imposed on, and belonging solely to”
`the plaintiff’s employer. Id.
`
`
`
`
`3
`
`
`
`Case 9:20-cv-00184-RC-ZJH Document 6 Filed 09/04/20 Page 6 of 9 PageID #: 149
`
`
` Torres v. Trans Health Mgmt., Inc., 509 F. Supp. 2d 628 (W.D. Tex.
`2006).
`• In Torres, an employee alleged “identical negligent acts and omissions”
`by his supervisor and his employer, including “failing to provide Plaintiff
`with a safe working environment”; “failing to implement and/or enforce
`safe practices in the work environment”; “failing to provide Plaintiff
`with proper safety equipment”; and similar alleged conduct. Id. at 632
`& n.6.
`• The court held: “Texas law precludes a finding of individual liability
`against [the supervisor]” because each of these allegedly negligent acts
`or omissions “related to safety in the workplace.” Id. at 632.
`• The court held that the supervisor had been fraudulently joined to defeat
`diversity, because no liability could be asserted against the supervisor
`as a matter of law.
`See also Ching Enters., Inc. v. Barahona, No. 01-07-00454-CV, 2008 WL 4006758, at
`*10 (Tex. Ct. App. Aug. 28, 2008) (holding that a corporate officer was not individually
`liable because the officer and the corporation “committed the identical negligent acts
`and omissions, all of which related to their failures to provide [the plaintiff] with a
`safe workplace”); In re Butt, 495 S.W.3d at 465-67 (ordering trial court to dismiss
`plaintiffs’ “baseless” claims against individual corporate employees where “the
`plaintiffs consistently referred to the corporation and president collectively when
`presenting reasons that they allegedly owed a duty,” and the allegations against them
`were “identical”).
`Plaintiffs’ claims against the Employee Defendants fail as a matter of law under
`the clear rule established by Leitch, Torres, and the other cases cited above. As in
`those cases, Plaintiffs allege that all of the Defendants—including Tyson and the
`Employee Defendants—“owed Plaintiffs a legal duty” to “provide a safe work
`4
`
`
`
`
`
`
`Case 9:20-cv-00184-RC-ZJH Document 6 Filed 09/04/20 Page 7 of 9 PageID #: 150
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`
`environment,” and that all of the Defendants “breached these duties” through the
`exact same list of alleged acts and omissions. [See Dkt. 1-1 ¶¶ 31a, 32, 33, 34]
`Because the claims against the Employee Defendants relate to workplace safety
`and are based on the same allegations asserted against Tyson, Plaintiffs’ claims
`against the Employee Defendants should be dismissed. See In re Butt, 495 S.W.3d at
`467 (dismissing corporate officers in slip and fall case because “liability cannot be
`imposed on employees where the employer and the employees committed the
`identical negligent acts or omissions”).
`Moreover, because Plaintiffs’ claims against the Employee Defendants are
`precluded as a matter of Texas law, those claims should be dismissed with prejudice.
`See Carter v. H2R Rest. Holdings, LLC, No. 3:16-cv-1554-N-BN, 2017 WL 1653622,
`at *5 (N.D. Tex. Apr. 3, 2017) (denying request to amend claim that fails as a matter
`of law); see also Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 182, 186 (5th Cir. 2018)
`(affirming denial of leave to amend where the plaintiff “would still fail to state a
`plausible claim against any Wal-Mart employee” even if the plaintiff amended to
`name the employees personally involved in allegedly negligently acts, because the
`employees owed no “independent duty apart from any duty that Wal-Mart owed”).
`
`CONCLUSION
`Defendants Jason Orsak, Erica Anthony, and Maria Cruz respectfully request
`that the Court dismiss with prejudice and/or enter judgment on the pleadings on the
`claims asserted against them based on: (1) all of the reasons stated in Defendant
`Tyson Foods, Inc.’s Motion to Dismiss filed concurrently with this motion, and (2) the
`additional reasons stated in this motion.
`
`
`
`
`5
`
`
`
`Case 9:20-cv-00184-RC-ZJH Document 6 Filed 09/04/20 Page 8 of 9 PageID #: 151
`
`
`Dated: September 4, 2020
`
`
`
`
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`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Zachary T. Mayer
`Zachary T. Mayer
`Texas Bar No. 24013118
`J. Edward Johnson
`Texas Bar No. 24070001
`MAYER LLP
`750 N. St. Paul Street, Suite 700
`Dallas, Texas 75201
`
`Christopher S. Coleman
`Pro Hac Vice forthcoming
`PERKINS COIE LLP
`2901 North Central Avenue, Suite 2000
`Phoenix, Arizona 85012
`Mary Z. Gaston
`Pro Hac Vice forthcoming
`PERKINS COIE LLP
`1201 Third Avenue, Suite 4900
`Seattle, Washington 98101
`
`ATTORNEYS FOR DEFENDANTS
`
`
`
`
`6
`
`
`
`Case 9:20-cv-00184-RC-ZJH Document 6 Filed 09/04/20 Page 9 of 9 PageID #: 152
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`
`CERTIFICATE OF SERVICE
`
`This is to certify that, on September 4, 2020, a true and correct copy of the
`foregoing document was served upon all counsel of record via the Court’s CM/ECF
`system as follows:
`
`Kurt Arnold
`Caj Boatright
`Roland Christensen
`Joseph McGowin
`Clair Traver
`ARNOLD & ITKIN LLP
`6009 Memorial Drive
`Houston, Texas 77007
`
`Christopher Hughes
`Don Wheeler
`WHEELER & HUGHES
`101 Tenaha Street
`P. O. Box 1687
`Center, Texas 75935
`
`ATTORNEY FOR PLAINTIFFS
`
`/s/ Zachary T. Mayer
`Zachary T. Mayer
`
`
`
`
`
`
`7
`
`
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