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Moller v. Tyson Foods, Inc.

United States District Court, N.D. Iowa, Western Division

September 9, 2014

JAMES MOLLER, Plaintiff,
v.
TYSON FOODS, INC., a foreign corporation doing business in Iowa as TYSON DELI, INC., and TYSON DELI, INC., Defendants. CAROL LORENZ, Plaintiff,
v.
TYSON FOODS, INC., a foreign corporation doing business in Iowa as TYSON DELI, INC., and TYSON DELI, INC., Defendants. WILLIAM RAVELING, Plaintiff,
v.
TYSON FOODS, INC., a foreign corporation doing business in Iowa as TYSON DELI, INC., and TYSON DELI, INC., Defendants. ROBERT SOLKO, Plaintiff,
v.
TYSON FOODS, INC., a foreign corporation doing business in Iowa as TYSON DELI, INC., and TYSON DELI, INC., Defendants.

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF'S MOTION TO REMAND AND DEFENDANTS' MOTION TO DISMISS

MARK W. BENNETT, District Judge.

These separate cases, which I will call, collectively, "The Tyson Age Discrimination Cases, " were filed by the same counsel on June 3, 2014, in the Iowa District Court in and for Cherokee County, as an action against Tyson Foods, Inc., alleging age discrimination, in violation of the federal Age Discrimination In Employment Act (ADEA), 29 U.S.C. § 623(a)(1), and the Iowa Civil Rights Act (ICRA), IOWA CODE § 216.6(1)(a). In each case, the plaintiff filed an Amended Complaint on June 19, 2014, adding an allegation that Tyson Foods, Inc., was "doing business as" Tyson Deli, Inc., and also adding Tyson Deli, Inc., as a second defendant, but not amending the allegations of age discrimination in violation of federal and state laws.

On July 10, 2014, Tyson Foods, Inc., and Tyson Deli, Inc., collectively "Tyson, " removed each of these actions to this federal court on two grounds: (1) federal question jurisdiction, pursuant to 28 U.S.C. § 1331, over the ADEA claims; and (2) diversity jurisdiction and sufficient amount in controversy, pursuant to 28 U.S.C. § 1332. On July 17, 2014, Tyson filed a Motion To Dismiss in each case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. None of the plaintiffs filed a timely response to Tyson's Motion To Dismiss in his or her case. Instead, on July 30, 2014, each plaintiff filed a "Resistance To Defendants [sic] Notice Of Removal, " which I construed as a "Motion To Remand To State Court." On August 11, 2014, Tyson filed in each case a Resistance To Plaintiff's Motion To Remand. These motions are now ripe for disposition.

I will consider the plaintiffs' Motions To Remand To State Court, first, because, if this court does not have subject matter jurisdiction on removal, I should not rule on Tyson's Motions To Dismiss pursuant to Rule 12(b)(6). The sum and substance of each plaintiff's Motion To Remand To State Court is the following: "The Plaintiff states that his provable damages are less than $75, 000.00." This assertion simply does not challenge removal based on "federal question" jurisdiction-one of the two bases on which Tyson removed these cases-because "federal question" jurisdiction has no "amount in controversy" requirement. See 28 U.S.C. § 1331. Each plaintiff's ADEA claim provides a proper basis for "federal question" jurisdiction. It also provides a proper basis for removal of that plaintiff's entire action to this federal court, pursuant to 28 U.S.C. § 1441(c), because each plaintiff's ICRA claim is within this court's supplemental jurisdiction, pursuant to 28 U.S.C. § 1367. See, e.g., Arnold Crossroads, L.L.C. v. Gander Mountain Co. , 751 F.3d 935, 939-40 (explaining that § 1441(c) allows removal of "the entire action"); see also Roberts v. USCC Payroll Corp. , No. C07-3071-MWB, 2009 WL 88563, *7 (N.D. Iowa Jan. 13, 2009) (holding that a federal court has supplemental jurisdiction pursuant to § 1367 over age discrimination claims under the ICRA that are based on the same allegations as the plaintiff's ADEA claims, because those claims all arise from a common nucleus of operative fact).

Indeed, even if the sole basis for federal subject matter jurisdiction on removal in these cases was "diversity, " which does depend, in part, on the "amount in controversy, " see 28 U.S.C. § 1332, the plaintiffs' Motions To Remand To State Court would also fail. In Salton v. Polycock , 764 F.Supp.2d 1033 (N.D. Iowa 2011), I reiterated the principles applicable to a motion to remand an action removed on the basis of "diversity" jurisdiction, where, as here, the amount in controversy cannot be pleaded pursuant to state court rules. 764 F.Supp.2d at 1035-36 (citing, inter alia, McCorkindale v. American Home Assur. Co./A.I.C. , 909 F.Supp. 646, 650-53 (N.D. Iowa 1995)). In Salton , I explained, inter alia , that, "where a plaintiff's state court complaint does not specify a specific amount of damages, post removal stipulations indicating that the value of the claim at the time of removal did not exceed the jurisdictional minimum [a]re permissible." Id . at 1036 (citing Halsne v. Liberty Mut. Group , 40 F.Supp.2d 1087, 1092 (N.D. Iowa 1999)). The Eighth Circuit Court of Appeals has since recognized that a stipulation as to the amount in controversy is binding, on the ground of judicial estoppel, and warrants remand to state court. See Rolwing v. Nestle Holdings, Inc ., 666 F.3d 1069, 1071-73 (8th Cir. 2012). Here, however, the plaintiffs' bald "statements" that their provable damages do not exceed the jurisdictional amount are not "stipulations, " nor do they address the value of the claim at the time of removal. Salton , 764 F.Supp.2d at 1036.

Each plaintiff's Motion To Remand To State Court is denied.

The denial of each plaintiff's Motion To Remand To State Court clears the way for me to consider Tyson's Motion To Dismiss each Amended Complaint for failure to state a claim upon which relief can be granted. In paragraphs 3 and 4 of each plaintiff's complaint, each plaintiff alleges the following: (1) that he or she was subjected to some adverse circumstance or employment action-a "hostile work environment, " "wrongful discipline and termination, " "termination for not working up to standard, '" or being "told to resign or be terminated for an incident that took place during his shift, " respectively; (2) that the reason for the adverse action was to bring about the employee's termination (Moller) or was "pretextual" (all other plaintiffs); and (3) that the plaintiff's age was a contributing factor and/or the factor in Tyson's conduct.[1] Tyson argues, in essence, that such conclusory allegations, essentially devoid of any supporting factual allegations, fall well short of pleading claims for relief that are plausible on their face. As noted, above, the plaintiffs have not responded at all to Tyson's arguments for dismissal of their claims.

Because the plaintiffs have failed to respond to Tyson's Motions To Dismiss within the time provided by applicable local rules, "the motion[s] may be granted without notice." See N.D. IA. L.R. 7(f). Indeed, such failure to prosecute these actions, where more than 30 days have elapsed since each plaintiff's response to Tyson's Motion To Dismiss was due in each case and where no extension of time to respond has been requested, would warrant involuntary dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and N.D. IA. L.R. 41(b)(4). I am reluctant to grant Tyson's Motion To Dismiss without leave to amend based upon each plaintiff's first failure to respond to a motion within the time provided by the local rules, however. Rather, I find it appropriate to consider whether each plaintiff's claims would also be subject to dismissal on the Rule 12(b)(6) grounds asserted by Tyson as part of my calculus of whether any plaintiff's Amended Complaint should be dismissed with or without leave to amend.

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a pre-answer motion to dismiss for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). As the Eighth Circuit Court of Appeals has explained,

We review de novo the district court's grant of a motion to dismiss, accepting as true all factual allegations in the complaint and drawing all reasonable inferences in favor of the nonmoving party. See Palmer v. Ill. Farmers Ins. Co., 666 F.3d 1081, 1083 (8th Cir. 2012); see also Fed.R.Civ.P. 12(b)(6). "To survive a motion to dismiss, a complaint 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal 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 for the misconduct alleged." Id .

Richter v. Advance Auto Parts, Inc. , 686 F.3d 847, 850 (8th Cir. 2012); accord Freitas v. Wells Fargo Home Mortg., Inc. , 703 F.3d 436, 438 (8th Cir. 2013) (quoting Richter , 686 F.3d at 850); Whitney v. Guys, Inc ., 700 F.3d 1118, 1128 (8th Cir. 2012) (stating the same standards).

Courts consider "plausibility" under this Twom-bal standard[2] by "draw[ing] on [their own] judicial experience and common sense.'" Whitney , 700 F.3d at 1128 (quoting Iqbal , 556 U.S. at 679). Also, courts must "review the plausibility of the plaintiff's claim as a whole, not the plausibility of each individual allegation.'" Id . (quoting Zoltek Corp. v. Structural Polymer Grp ., 592 F.3d 893, 896 n.4 (8th Cir. 2010)). The Eighth Circuit Court of Appeals has refused, at the pleading stage, "to incorporate some general and formal level of evidentiary proof into the plausibility' requirement of Iqbal and Twombly." Id . Nevertheless, the question "is not whether [the pleader] might at some later stage be able to prove [facts alleged]; the question is whether [it] has adequately asserted facts (as contrasted with naked legal conclusions) to support [its] claims." Id . at 1129. Thus,

[w]hile this court must "accept as true all facts pleaded by the non-moving party and grant all reasonable inferences from the pleadings in favor of the non-moving party, " United States v. Any & All Radio Station Transmission Equip ., 207 F.3d 458, 462 (8th Cir. 2000), "[a] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting [ Bell Atl. Corp. v.] Twombly , 550 U.S. [544, ] 555, 127 S.Ct. 1955 [(2007)]).

Gallagher v. City of Clayton , 699 F.3d 1013, 1016 (8th Cir. 2012); Whitney , 700 F.3d at 1128 ...


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