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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 ES-
`COTO; 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; NATA-
`SHA RIOS; GUADALUPE RONDAN;
`MIGUEL RONDAN; JAVIER RUBIO;
`IGNACIO RUIZ; SYLVIA RUIZ;
`MITCHELL SANCHEZ; BILLY
`SHAW; KYAW SOE; NYEIN SOE;
`THIDA SOE; BREANA SOLIS; LA-
`DONNA TRULL; AND TIN SOE, IN-
`DIVIDUALLY AND AS PERSONAL
`REPRESENTATIVE OF THE ES-
`TATE OF MAUNG MAUNG TAR,
`
`Plaintiffs,
`
`vs.
`
`TYSON FOODS, INC.; ERNESTO
`SANCHEZ; KEVIN KINIKIN; and
`FARREN FERNANDEZ,
`
`Defendants.
`
`DEFENDANT TYSON FOODS, INC.’S MOTION TO DISMISS
`
`ORAL ARGUMENT REQUESTED
`
`

`

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`TABLE OF CONTENTS
`
`
`Page
`
`
`INTRODUCTION AND STATEMENT OF ISSUES ................................................... 1
`BACKGROUND ............................................................................................................ 4
`A.
`The Complaint ......................................................................................... 4
`B.
`Federal regulation of meat and poultry facilities .................................. 5
`C.
`Designation of critical infrastructure ..................................................... 6
`ARGUMENT ............................................................................................................... 10
`I.
`The complaint’s allegations of causation are far too conclusory
`and speculative under Iqbal and Twombly. ......................................... 10
`The complaint takes no account of the broad, express preemp-
`tion of the Federal Meat Inspection Act. .............................................. 17
`A.
`The FMIA expressly preempts state-law requirements
`that differ from or add to the FMIA regulations. ...................... 17
`The FMIA regulates the control of “infectious disease” at
`meat-processing facilities. .......................................................... 18
`Plaintiffs cannot impose state-law “requirements” that
`differ from or add to the FMIA’s regulations. ........................... 19
`III. The complaint takes no account of the federal designation of Ty-
`son facilities as critical infrastructure. ................................................ 21
`CONCLUSION ............................................................................................................ 25
`
`II.
`
`B.
`
`C.
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`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`
`CASES
`
`Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. v.
`Lockridge,
`403 U.S. 274 (1971) .......................................................................................... 17, 23
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ......................................................................................... passim
`Bass v. Stryker Corp.,
`669 F.3d 501 (5th Cir. 2012) .................................................................................... 3
`Bates v. Dow Agrosciences LLC,
`544 U.S. 431 (2005) ................................................................................................ 20
`Cary v. Hickenlooper,
`673 F. App’x 870 (10th Cir. 2016) .......................................................................... 15
`Crosby v. Nat’l Foreign Trade Council,
`530 U.S. 363 (2000) .......................................................................................... 22, 23
`Dakota Cent. Tel. Co. v. State of S. Dakota ex rel. Payne,
`250 U.S. 163 (1919) ................................................................................................ 23
`Dames & Moore v. Regan,
`453 U.S. 654 (1981) ................................................................................................ 23
`Delaney v. Stryker Orthopaedics,
`Civ. A. No. 08-03210 (DMC), 2009 WL 564243 (D.N.J. Mar. 5, 2009) ................. 21
`Doe v. Boys Clubs of Greater Dallas, Inc.,
`907 S.W.2d 472 (Tex. 1995) .................................................................................... 12
`E. Air Lines, Inc. v. McDonnell Douglas Corp.,
`532 F.2d 957 (5th Cir. 1976) .................................................................................. 22
`Eclectic Props. E., LLC v. Marcus & Millichap Co.,
`751 F.3d 990 (9th Cir. 2014) .................................................................................. 11
`Geier v. Am. Honda Motor Co.,
`529 U.S. 861 (2000) .......................................................................................... 21, 24
`Guidry v. Bank of LaPlace,
`954 F.2d 278 (5th Cir. 1992) .................................................................................. 15
`
`
`
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`TABLE OF AUTHORITIES
`(continued)
`
`Page
`
`
`Hernandez v. Casey,
`Civ. A. No. 3:16-CV-452-M-BH, 2017 WL 685679 (N.D. Tex. Jan. 12,
`2017), report and recommendation adopted by Civ. A. No. 3:16-CV-
`452-M, 2017 WL 680309 (N.D. Tex. Feb. 21, 2017) .............................................. 12
`Hillman v. Maretta,
`569 U.S. 483 (2013) ................................................................................................ 22
`Hines v. Davidowitz,
`312 U.S. 52 (1941) .................................................................................................. 24
`Horowitz v. Stryker Corp.,
`613 F. Supp. 2d 271 (E.D.N.Y. 2009) ................................................................. 3, 21
`In re Abbott,
`954 F.3d 772 (5th Cir. 2020) .................................................................................. 14
`In re Great Lakes Dredge & Dock Co.,
`624 F.3d 201 (5th Cir. 2010) .................................................................................. 10
`N. Pac. Ry. Co. v. State of N. Dakota ex rel. Langer,
`250 U.S. 135 (1919) ................................................................................................ 23
`Nat’l Meat Ass’n v. Harris,
`565 U.S. 452 (2012) .......................................................................................... 18, 21
`Osburn v. Anchor Labs., Inc.,
`825 F.2d 908 (5th Cir. 1987) .................................................................................. 21
`Peterson v. Silverado Senior Living, Inc.,
`790 F. App’x 614 (5th Cir. 2019) ............................................................................ 15
`Rancho Viejo, LLC v. Norton,
`323 F.3d 1062 (D.C. Cir. 2003) .............................................................................. 23
`Riegel v. Medtronic, Inc.,
`552 U.S. 312 (2008) ................................................................................................ 20
`Rincon v. Covidien,
`No. 16-CV-10033 (JMF), 2017 WL 2242969 (S.D.N.Y. May 22, 2017) ................. 15
`
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`TABLE OF AUTHORITIES
`(continued)
`
`
`Rubins v. Tisdale,
`Civ. A. No. 2:12-CV-118-J, 2012 WL 4932159 (N.D. Tex. Oct. 17,
`2012) ........................................................................................................................ 10
`
`Page
`
`San Diego Bldg. Trades Council, Millmen’s Union, Local 2020 v.
`Garmon,
`359 U.S. 236 (1959) ................................................................................................ 24
`Swindol v. Aurora Flight Scis. Corp.,
`805 F.3d 516 (5th Cir. 2015) .................................................................................... 5
`Terrebonne v. Blackburn,
`646 F.2d 997 (5th Cir. 1981) .................................................................................. 14
`Trout Point Lodge, Ltd. v. Handshoe,
`729 F.3d 481 (5th Cir. 2013) .................................................................................... 5
`United States v. Garcia,
`855 F.3d 615 (4th Cir. 2017) .................................................................................... 5
`Valentine v. Collier,
`960 F.3d 707 (5th Cir. 2020) .................................................................................. 14
`Waller v. Hanlon,
`922 F.3d 590 (5th Cir. 2019) ............................................................................ 10, 11
`Winn v. Medtronic, Inc.
`Civ. A. No. 3:16-CV-452-M, 2017 WL 680309 (N.D. Tex. Feb. 21,
`2017) ............................................................................................................ 19, 20, 21
`
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`TABLE OF AUTHORITIES
`(continued)
`
`Page
`
`
`STATUTES
`21 U.S.C. § 608 ............................................................................................................... 5
`21 U.S.C. § 678 ................................................................................................... 6, 18, 19
`50 U.S.C. § 4511(a) ................................................................................................ 22, 23
`Texas Wrongful Death Act, Tex. Civ. Prac. & Rem. Code § 71.002(b)
`(1985) ...................................................................................................................... 11
`OTHER AUTHORITIES
`9 C.F.R. §§ 300 et seq. .................................................................................................. 20
`9 C.F.R. §§ 300.1 et seq. ................................................................................................. 5
`9 C.F.R. §§ 300.2(a), (b)(1) ............................................................................................. 5
`9 C.F.R. § 416.5 ............................................................................................................ 18
`9 C.F.R. § 416.5(c) ........................................................................................................ 18
`85 Fed. Reg. 15,337 (Mar. 18, 2020) .............................................................................. 6
`85 Fed. Reg. 26,313 (Apr. 28, 2020) ........................................................................ 7, 22
`
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`MOTION
`
`Defendant Tyson Foods, Inc. (“Tyson”) respectfully moves under Rule 12(b)(6) to
`dismiss the complaint. The complaint fails to plausibly allege that Tyson caused the
`alleged injuries, and even if the allegations were otherwise sufficient, the alleged
`causes of action would be preempted by federal law.
`
`INTRODUCTION AND STATEMENT OF ISSUES
`The United States is facing a global pandemic whose impact and scope are with-
`out modern precedent. Millions have been infected with the novel coronavirus, and
`more than 180,000 Americans have died of complications related to COVID-19.
`This case was filed by forty-one Plaintiffs. Forty of the Plaintiffs are current and
`former Tyson employees who allege that they contracted COVID-19 and became ill
`while at work at a Tyson meat-processing facility in Amarillo, Texas. In addition, a
`personal representative of another Tyson employee, Maung Maung Tar, alleges that
`he passed away from the disease.
`That these individuals are among the many thousands of Americans who have
`died or suffered illness during the COVID-19 pandemic is a tragedy. But the com-
`plaint brought by Plaintiffs fails to adequately plead a plausible claim against Tyson.
`The complaint pleads no theory of liability or causation other than conclusory allega-
`tions that Tyson was negligent for allegedly failing to shut down or provide sufficient
`protective measures, and the reader is left to speculate that the absence of those
`measures caused Plaintiffs to contract COVID-19. The complaint does not allege any
`particular incident of exposure occasioned by alleged negligence, nor does it attempt
`to rule out other potential causes of infection, such as community spread. The com-
`plaint simply concludes that Plaintiffs became infected because they worked at Ty-
`son. This case must be dismissed.
`
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`Tyson has proactively and aggressively responded to the pandemic, working from
`the very beginning of COVID-19’s appearance in the United States to meet or exceed
`federal workplace guidelines, and investing millions for protective measures for its
`team members. Tyson’s efforts to protect its workers while continuing to supply
`Americans with food in the face of the pandemic continue to this day.
`It is neither just nor plausible to simply assume that Plaintiffs must have con-
`tracted COVID-19 from work merely because they worked at Tyson, much less due to
`Tyson’s alleged actions. If the sparse, conclusory allegations here were sufficient, vir-
`tually any employer, retail business, restaurant, school, or host could be sued for fail-
`ing to take sufficient measures to protect anyone who worked on or visited its prem-
`ises from infection. The number of lawsuits in Texas alone would be staggering:
`
`Federal pleading standards require plausible allegations of causation, and atten-
`tion to plausibility is crucial here or the scope of litigation could become its own epi-
`demic if wholly speculative and conclusory claims can proceed. Those standards are
`especially important when applied to allegations of liability directed to a federally-
`regulated food processing facility that has been designated as critical and essential
`to the nation in order to continue to provide much-needed food during this national
`emergency. The complaint should be dismissed for the following reasons.
`First, plausibility. Plaintiffs must allege “sufficient factual matter, accepted as
`true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
`
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`662, 678 (2009) (quotation omitted). It is not sufficient to allege simply that Plaintiffs
`became infected because they worked at Tyson. To satisfy Iqbal and Twombly, Plain-
`tiffs must allege “sufficient factual matter” to “plausibly” conclude that (1) Plaintiffs
`were infected at Tyson; and (2) the infections resulted from Tyson’s negligence rather
`than from some other cause. The complaint here falls short on both counts: Plaintiffs
`have not offered any factual allegations on causation—plausible or otherwise—that
`Plaintiffs were infected at Tyson, much less due to Tyson’s negligence. To hold other-
`wise would disregard the well-established standards of Iqbal and Twombly and open
`the floodgates to potentially thousands of speculative claims.
`Second, express federal preemption. Even if it could be plausibly alleged that
`Plaintiffs were infected while at work because of Tyson’s negligence, the complaint
`must also allege how its theory of liability could fit within the express preemption of
`the Federal Meat Inspection Act (“FMIA”). The FMIA authorizes the U.S. Depart-
`ment of Agriculture to regulate infectious diseases at meat-processing facilities, and
`it has done so through a comprehensive regulatory regime that expressly prohibits
`states from adopting different or additional requirements. Yet the complaint makes
`no attempt to explain how Plaintiffs’ proposed state-law standards are consistent
`with the FMIA. A sufficient complaint must do so. See, e.g., Horowitz v. Stryker Corp.,
`613 F. Supp. 2d 271, 280 (E.D.N.Y. 2009) (dismissing complaint for failure to plead
`allegations sufficient to avoid preemption under FDA regulations), cited with ap-
`proval in Bass v. Stryker Corp., 669 F.3d 501, 509 (5th Cir. 2012).
`Finally, the federal designations and Presidential orders. The complaint also
`takes no account of the national emergency declared by the President, the designation
`of Tyson as critical infrastructure, and the subsequent reinforcing directives by the
`President. Any claim that could survive a motion to dismiss must take account of
`these federal actions in the midst of a national emergency.
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`Maung Maung Tar’s death is a tragedy, and the illness experienced by the other
`Plaintiffs is unfortunate. But legal claims arising from the COVID-19 pandemic must
`satisfy well-established pleading standards. The complaint does not satisfy those
`standards, nor does it allege how Plaintiffs’ claims are not preempted by federal law.
`For those reasons, the complaint should be dismissed.
`
`BACKGROUND
`
`A.
`
`The Complaint
`Plaintiffs filed this lawsuit in the 251st District Court of Potter County, Texas in
`July 2020, naming Tyson employees Ernesto Sanchez, Kevin Kinikin, and Farren
`Fernandez as defendants. [Dkt. 1-3] Soon after, Plaintiffs filed a First Amended Pe-
`tition and added Tyson as a defendant. [Dkt. 1-14] All Defendants then timely re-
`moved on the basis of federal officer removal and federal question jurisdiction. [Dkt.
`1] Rather than plead individualized facts, the First Amended Complaint merely al-
`leges that each Plaintiff “worked at Tyson’s Amarillo Texas Facility and contracted
`COVID-19 because of the unsafe working conditions at the Amarillo Texas Facility.”
`[Dkt. 1-14 ¶¶ 7-47, 55] But Plaintiffs allege no facts as to how, when, or why they
`contracted COVID-19, or ruling out contraction from another community source.
`With respect to Maung Maung Tar, the First Amended Complaint contains no
`allegation that he contracted COVID-19 or that he died from the disease, alleging
`only that the defendants’ alleged conduct caused his death. [Dkt. 1-14 ¶¶ 73-74]
`Plaintiffs also vaguely assert that Tyson “failed to take adequate precautions to
`protect the workers at its meatpacking facilities, including the Amarillo, Texas meat-
`packing facility,” and allege in particular that Tyson failed in the following respects:
`a. Requiring Plaintiffs to “continue working” at the facility;
`b. Failing to provide adequate personal protective equipment;
`c. Failing to implement social distancing;
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`d. Failing to follow guidelines set forth by the World Health Organi-
`zation (“WHO”) and Centers for Disease Control and Prevention
`(“CDC”);
`e. Failing to warn of dangerous conditions regarding COVID-19;
`f. Failing to provide “adequate medical treatment”; and
`g. Allowing individuals infected with COVID-19 to continue working.
`[Dkt. 1-14 ¶¶ 54, 60] Again, Plaintiffs do not allege any incident or mechanism tied
`to Tyson’s alleged negligence that led to Plaintiffs’ illness, nor do they account for or
`attempt to rule out other sources of infection.
`B.
`Federal regulation of meat and poultry facilities
`Tyson is the largest food company in the U.S., providing more than 20% of the
`nation’s supply of meat and poultry—enough to feed 60 million Americans every day.
`Tyson employs more than 120,000 workers at processing facilities. Plaintiffs worked
`at a meat-processing facility in Amarillo, Texas. [Dkt. 1-14 ¶ 52]
`Tyson’s Amarillo facility is subject to federal regulation under the Federal Meat
`Inspection Act, 21 U.S.C. §§ 601 et seq.; see also FSIS Meat, Poultry and Egg Product
`Inspection Directory at 536 (Aug. 8, 2020) (identifying the Amarillo facility as estab-
`lishment number M245E).1 The FMIA requires that all meat-processing facilities sat-
`isfy “rules and regulations of sanitation” that are “prescribe[d]” by the U.S. Secretary
`of Agriculture. 21 U.S.C. § 608. The Department’s Food Safety and Inspection Service
`(“FSIS”) promulgates the relevant regulations. See 9 C.F.R. §§ 300.2(a), (b)(1). That
`
`1 https://www.fsis.usda.gov/wps/wcm/connect/bf8d9766-9767-4e0c-a9f1-efea0b2a42
`bc/MPI_Directory_Establishment_Name.pdf?MOD=AJPERES. This Court may
`properly take judicial notice of information contained on a governmental agency’s
`webpage. See Swindol v. Aurora Flight Scis. Corp., 805 F.3d 516, 518-19 (5th Cir.
`2015); see also Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 490 n.12 (5th
`Cir. 2013) (same); United States v. Garcia, 855 F.3d 615, 621 (4th Cir. 2017) (“This
`court and numerous others routinely take judicial notice of information contained
`on state and federal government websites.”).
`
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`rulemaking authority expressly preempts any attempt by the states to impose “addi-
`tional” or “different” requirements. See 21 U.S.C. § 678.
`FSIS has issued rigorous, detailed regulations to govern meat processors’ opera-
`tions. See 9 C.F.R. §§ 300.1 et seq. The Amarillo facility is subject to hundreds of FSIS
`regulations—enough to fill hundreds of pages of the Code of Federal Regulations—
`that address meat-processing facilities and operations in minute detail, from the
`physical structure of the facility, to the details of the processing operation, to the
`many inspection requirements such facilities must satisfy, among many other sub-
`jects. And, as discussed in more detail in Section II below, those regulations also ad-
`dress the use of personal protective equipment and the control of infectious disease.
`C.
`Designation of critical infrastructure
`The federal government has designated food producers as part of the country’s
`critical infrastructure, underscoring the essential nature of such producers by order-
`ing those facilities to operate pursuant to federal CDC guidelines.
`Declarations of national emergency. On March 13, 2020, the President declared
`that “the COVID-19 outbreak in the United States constitutes a national emergency,
`beginning March 1, 2020.” Exec. Office of Pres., Declaring a National Emergency Con-
`cerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 Fed. Reg. 15,337,
`15,337 (Mar. 18, 2020). Similar emergency declarations were issued for Texas and
`Potter County. U.S. Dep’t of Homeland Sec., Texas; Major Disaster and Related De-
`terminations, 85 Fed. Reg. 20,699, 20,699-700 (Apr. 14, 2020); State of Tex., Governor
`Abbott Declares State of Disaster in Texas Due to COVID-19, Mar. 13, 2020;2 Nancy
`Tanner, Cty. Judge, Cty. of Potter, Texas, Second Amended Order Under Declaration
`of Disaster for Potter County, Mar. 30, 2020.3
`
`2 https://gov.texas.gov/news/post/governor-abbott-declares-state-of-disaster-in-texas-
`due-to-covid-19.
`3 https://www.co.potter.tx.us/upload/page/7380/docs/COVID%203.30.20.pdf.
`
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`Critical infrastructure industries should follow CDC guidelines. Soon after, on
`March 16, the President issued Coronavirus Guidelines for America, which empha-
`sized that, unlike workers in some industries, employees in “critical infrastructure
`industr[ies],” including “food supply,” have a “special responsibility” and should “fol-
`low CDC guidance.” Exec. Office of Pres., The President’s Coronavirus Guidelines for
`America (“Coronavirus Guidelines for America”), Mar. 16, 2020, at 2.4
`Texas issued a similar order on March 31 recognizing food-processing facilities
`within the state as essential infrastructure. See State of Tex., Governor Abbott Issues
`Executive Order Implementing Essential Services and Activities Protocols, Mar. 31,
`2020, at 3 (adopting CISA definition and declaring that “all critical infrastructure
`should be allowed to remain operational”).5
`Those directives were further embodied in an April 28, 2020 executive order is-
`sued by the President under the Defense Production Act of 1950 (“DPA”), 50 U.S.C.
`§§ 4501 et seq. See Exec. Office of Pres., 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 (Apr. 28, 2020). In that order, the President directed the Secretary of Agricul-
`ture “to ensure that meat and poultry processors continue operations consistent with
`the guidance for their operations jointly issued by the CDC and OSHA.” Id. The Pres-
`ident specifically underscored that “[i]t is important that processors of beef, pork, and
`poultry . . . in the food supply chain continue operating and fulfilling orders to ensure
`a continued supply of protein for Americans.” Id.
`
`
`4 https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-
`guidance_8.5x11_315PM.pdf.
`5 https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-implement-
`ing-essential-services-and-activities-protocols.
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`The same day, the Secretary of Agriculture announced that his Department
`would “work with meat processing to affirm they will operate in accordance with the
`CDC and OSHA guidance” and “ensure that facilities implementing this guidance to
`keep employees safe can continue operating.” U.S. Dep’t of Agric., USDA to Imple-
`ment President Trump’s Executive Order on Meat and Poultry Processors, Apr. 28,
`2020.6 Reiterating that “[o]ur nation’s meat and poultry processing facilities play an
`integral role in the continuity of our food supply chain,” the Secretary explained that
`the CDC and OSHA guidance would “help ensure employee safety to reopen plants
`or to continue to operate those still open” and “ensure that these plants are allowed
`to operate to produce the meat protein that Americans need.” Id.
`The Department of Agriculture has continued to emphasize that “critical infra-
`structure meatpacking facilities across the United States” must continue operating
`and that the federal guidance for such facilities from the CDC and OSHA would “en-
`sure a safe and stable supply of protein is available for American consumers all while
`keeping employees safe.” U.S. Dep’t of Agric., America’s Meatpacking Facilities Prac-
`ticing Safe Reopening to Ensure a Stable Food Supply, May 8, 2020, at 1;7 see also,
`e.g., U.S. Dep’t of Agric., USDA, FDA Strengthen U.S. Food Supply Chain Protections
`During COVID-19 Pandemic (“Food Supply Chain Protections”), May 19, 2020, at 2
`(“All of the food and agriculture sector . . . are considered critical infrastructure, and
`it is vital for the public health that they continue to operate in accordance with guide-
`lines from the CDC and OSHA regarding worker health and safety.”).8
`
`
`6 https://www.usda.gov/media/press-releases/2020/04/28/usda-implement-president-
`trumps-executive-order-meat-and-poultry.
`7 https://www.usda.gov/media/press-releases/2020/05/08/americas-meatpacking-fa-
`cilities-practicing-safe-reopening-ensure.
`8 https://www.usda.gov/media/press-releases/2020/05/19/usda-fda-strengthen-us-
`food-supply-chain-protections-during-covid.
`
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`-8-
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`

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`Continued operations are governed by federal standards. Following the Presi-
`dent’s direction, the Secretary of Agriculture ordered “meat and poultry processing
`plants” to apply the CDC and OSHA guidance “specific to the meat and poultry pro-
`cessing industry to implement practices and protocols for safeguarding the health of
`the workers and the community while staying operational or resuming operations.”
`Letter from Sonny Perdue, Sec’y of Agric., to Stakeholders (“Stakeholders Letter”)
`(May 5, 2020);9 see also Letter from Sonny Perdue, Sec’y of Agric., to Governors at 1
`(May 5, 2020) (“Governors Letter”) (same);10 U.S. Dep’t of Agric., Secretary Perdue
`Issues Letters on Meat Packing Expectations, May 6, 2020 (same).11
`With the ever-changing understanding of COVID-19, the CDC and OSHA have
`continually updated their guidance as new information about the disease comes to
`light. See Meat and Poultry Processing Workers and Employers Meat & Poultry Pro-
`cessors: Interim Guidance from CDC and the Occupational Safety and Health Admin-
`istration (OSHA) (updated July 9, 2020).12 But the message from the President and
`the Department of Agriculture has remained clear and unchanged from the begin-
`ning: Meat and poultry processors should continue to operate subject to applicable
`federal guidance from the CDC and OSHA.
`
`
`9 https://www.usda.gov/sites/default/files/documents/stakeholder-letters-covid.pdf.
`10 https://www.usda.gov/sites/default/files/documents/governor-letters-covid.pdf.
`11 https://www.usda.gov/media/press-releases/2020/05/06/secretary-perdue-issues-
`letters-meat-packing-expectations.
`12 https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/meat-poul-
`try-processing-workers-employers.html.
`
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`I.
`
`ARGUMENT
`The complaint’s allegations of causation are far too conclusory and
`speculative under Iqbal and Twombly.
`Complaints must contain “sufficient factual matter, accepted as true, to ‘state a
`claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
`(quotation omitted). “To be plausible, the complaint’s ‘[f]actual allegations must be
`enough to raise a right to relief above the speculative level.’” In re Great Lakes Dredge
`& Dock Co., 624 F.3d 201, 210 (5th Cir. 2010) (quotation omitted). “A claim has facial
`plausibility when the plaintiff pleads factual content that allows the court to draw
`the reasonable inference that the defendant is liable . . . .” Iqbal, 556 U.S. at 678.
`Applying those standards is “a two-step inquiry.” Waller v. Hanlon, 922 F.3d 590,
`599 (5th Cir. 2019). First, the Court must “identify the complaint’s well-pleaded fac-
`tual content.” Id. Significantly, the “assumption of truth” applicable to well-pleaded
`facts does not apply to “pleadings that . . . are no more than conclusions.” Iqbal, 556
`U.S. at 679. The Amarillo Division has previously noted:
`
`[T]he court does not accept as true “conclusory allegations, unwar-
`ranted factual inferences, or legal conclusions.” Ferrer v. Chevron
`Corp., 484 F.3d 776, 780 (5th Cir.2007) (quoting Plotkin v. IP Axess
`Inc., 407 F.3d 690, 696 (5th Cir.2005)); see also Iqbal, 129 S.Ct. at
`1940 (“While legal conclusions can provide the complaint’s frame-
`work, they must be supported by factual allegations.”). Accord In re
`Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir.2010)
`(Rule 12(b)(6) dismissal standards).
`
`Rubins v. Tisdale, Civ. A. No. 2:12-CV-118-J, 2012 WL 4932159, at *1 (N.D. Tex. Oct.
`17, 2012) (Robinson, J.).
`Second, having identified the “well-pleaded factual allegations,” Iqbal, 556 U.S.
`at 679, the Court “ask[s] whether th[ose] remaining allegations ‘are sufficient to
`nudge the [plaintiff’s] claim across the “plausibility” threshold,’” Waller, 922 F.3d at
`599 (quoting Doe v. Rober