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`Case 2:20-cv-00203-Z Document 5 Filed 09/04/20 Page 1 of 9 PageID 99Case 2:20-cv-00203-Z Document 5 Filed 09/04/20 Page 1 of 9 PageID 99
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`AMARILLO DIVISION
`
`NO. 2:20-cv-00203-Z
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`JAMIE WAZELLE; TAY AUNG;
`ELIZABETH CASEL; MANIVANH
`CHANTHANAKHONE; MANUEL
`CONTRERAS; REBECA CORRAL;
`PATRICIA COSSEY; JOZETTE
`ESCOTO; CRUZ GARCIA, SR.;
`SHERYL GARDNER; DENETRIA
`GONZALEZ; RENE GUTIERREZ;
`BRIAN HALL; BRANDON IVORY;
`NINI AYE KAYAHPHU; KO LATT;
`ARMANDO LIRA; DERESTIA LIRA;
`MYA LIRA; VALARIE LIRA; AUNG
`MOE; BIAK MORRIS; MALEAK
`RECTOR; MARICELA RIOS;
`NATASHA RIOS; GUADALUPE
`RONDAN; MIGUEL RONDAN;
`JAVIER RUBIO; IGNACIO RUIZ;
`SYLVIA RUIZ; MITCHELL
`SANCHEZ; BILLY SHAW; KYAW
`SOE; NYEIN SOE; THIDA SOE;
`BREANA SOLIS; LADONNA TRULL;
`AND TIN SOE, INDIVIDUALLY AND
`AS PERSONAL REPRESENTATIVE
`OF THE ESTATE OF MAUNG
`MAUNG TAR,
`
`Plaintiffs,
`
`vs.
`
`TYSON FOODS, INC.; ERNESTO
`SANCHEZ; KEVIN KINIKIN; and
`FARREN FERNANDEZ,
`
`Defendants.
`
`DEFENDANTS ERNESTO SANCHEZ, KEVIN KINIKIN
`AND FARREN FERNANDEZ’S MOTION TO DISMISS
`
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`Case 2:20-cv-00203-Z Document 5 Filed 09/04/20 Page 2 of 9 PageID 100Case 2:20-cv-00203-Z Document 5 Filed 09/04/20 Page 2 of 9 PageID 100
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`TABLE OF AUTHORITIES
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`Page(s)
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`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. App.—Houston [1st
`Dist.] Aug. 28, 2008, no pet.) .................................................................................... 4
`Gen. Elec. Co. v. Moritz,
`257 S.W.3d 211 (Tex. 2008) ...................................................................................... 3
`In re Butt,
`495 S.W.3d 455 (Tex. App.—Corpus Christi 2016, no pet.) ............................ 3, 4, 5
`Leitch v. Hornsby,
`935 S.W.2d 114 (Tex. 1996) .............................................................................. 1, 2, 3
`Torres v. Trans Health Mgmt., Inc.,
`509 F. Supp. 2d 628 (W.D. Tex. 2006) ..................................................................... 4
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`Case 2:20-cv-00203-Z Document 5 Filed 09/04/20 Page 3 of 9 PageID 101Case 2:20-cv-00203-Z Document 5 Filed 09/04/20 Page 3 of 9 PageID 101
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`MOTION
`Defendants Ernesto Sanchez, Kevin Kinikin, and Farren Fernandez (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) on the additional ground that Texas law permits workplace safety
`claims to be asserted only against an employer, not against co-employees.
`
`INTRODUCTION
`Plaintiffs allege that Tyson Foods, Inc. (“Tyson”) failed to provide a safe work
`environment at Tyson’s Amarillo meat 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—Ernesto
`Sanchez, Kevin Kinikin, and Farren Fernandez. Those claims are improper under
`Texas law, and should be dismissed.
`
`BACKGROUND
`Plaintiffs filed this lawsuit in the District Court of Potter County, Texas in July
`2020, originally naming only the Employee Defendants and alleging claims for
`negligence and gross negligence. [Dkt. 1-3] Plaintiffs later filed a First Amended
`Petition and added Tyson as a defendant. [Dkt. 1-14] All Defendants then timely
`removed to federal court based on federal officer and federal question jurisdiction.
`[Dkt. 1]
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`
`The First Amended Complaint makes substantially identical allegations against
`Tyson and the Employee Defendants:
`
`Upon information and belief, Defendants Tyson, Inc.;
`Ernesto Sanchez; Kevin Kinikin; and Farren Fernandez
`failed to fulfill their job duties to provide a safe working
`environment to Plaintiffs. Defendants 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
`Amarillo, Texas meatpacking plant and have experienced
`significant injuries as a result.
`
`[Dkt 1-14 ¶ 55; see also id. ¶ 60 (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. ¶ 58]
`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 Ernesto Sanchez, Kevin
`Kinikin, or Farren Fernandez. 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
`S.W.2d at 117 (“When the employer is a corporation, the law charges the corporation
`
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`-2-
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`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. App.—Corpus Christi
`2016, no pet.) (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.
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` 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. App.—Houston [1st Dist.] Aug. 28, 2008, no pet.) (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
`
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`-4-
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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. 1-14 ¶¶ 60a, 61, 62]
`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 Ernesto Sanchez, Kevin Kinikin, and Farren Fernandez respectfully
`request that the Court dismiss the claims against them with prejudice 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.
`
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`-5-
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`Case 2:20-cv-00203-Z Document 5 Filed 09/04/20 Page 8 of 9 PageID 106Case 2:20-cv-00203-Z Document 5 Filed 09/04/20 Page 8 of 9 PageID 106
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`Dated: September 4, 2020
`
`Respectfully submitted,
`
`
`
`
`
`
`/s/ Kelly Utsinger
`UNDERWOOD LAW FIRM, P.C.
`Kelly Utsinger
`Kelly.Utsinger@uwlaw.com
`Texas Bar No. 20416500
`C. Jason Fenton
`Texas Bar No. 24087505
`Jason.Fenton@uwlaw.com
`Titiana D. Frausto
`Texas Bar No. 24071614
`Titiana.Frausto@uwlaw.com
`500 S. Taylor, Suite 1200
`Amarillo, Texas 79101
`Telephone: 806.376.5613
`Facsimile: 806.379.0316
`
`Christopher S. Coleman
`PERKINS COIE LLP
`Pro Hac Vice Application Forthcoming
`2901 North Central Avenue
`Suite 2000
`Phoenix, Arizona 85012-2788
`Telephone: 602.351.8000
`Facsimile: 602.648.700
`CColeman@perkinscoie.com
`
`Mary Z. Gaston
`PERKINS COIE LLP
`Pro Hac Vice Application Forthcoming
`1201 Third Avenue. Suite 4900
`Seattle, Washington 98101
`Telephone: 206.359.8000
`Facsimile: 206.359.9000
`MGaston@perkinscoie.com
`
`ATTORNEYS FOR DEFENDANTS
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`-6-
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`Case 2:20-cv-00203-Z Document 5 Filed 09/04/20 Page 9 of 9 PageID 107Case 2:20-cv-00203-Z Document 5 Filed 09/04/20 Page 9 of 9 PageID 107
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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:
`
`Tim Newsom
`YOUNG & NEWSOM, PC
`1001 S. Harrison
`Suite 200
`Amarillo, Texas 79101
`tim@youngfirm.com
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`Kurt Arnold
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`Caj Boatright
`Roland Christensen
`Joseph McGowin
`
`Claire Traver
`
`6009 Memorial Drive
`Houston, Texas 77007
`karnold@arnolditkin.com
`cboatright@arnolditkin.com
`rchristensen@arnolditkin.com
`jmcgowin@arnolditkin.com
`ctraver@arnolditkin.com
`kbateam@arnolditin.com
`e-service@arnolditkin.com
`ATTORNEYS FOR PLAINTIFFS
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`/s/ Kelly Utsinger
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`-7-
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