Moller v. Tyson Foods, Inc.

Filing 8

ORDER denying (5 in 5:14-cv-04056-MWB) (5 in 5:14-cv-04057-MWB) (5 in 5:14-cv-04058-MWB) (5 in 5:14-cv-04059-MWB) MOTION to Remand to State Court, granting (4 in 5:14-cv-04056-MWB) (4 in 5:14-cv-04057-MWB) (4 in 5:14-cv-04058-MWB) (4 in 5:14-c v-04059-MWB) MOTION to Dismiss for Failure to State a Claim (See Order Text), but each plaintiff shall have to 10/9/2014 to file another Amended Complaint attempting to plead adequately his or her federal and state age discrimination claims. Signed by Judge Mark W Bennett on 9/9/2014. Associated Cases: 5:14-cv-04056-MWB, 5:14-cv-04057-MWB, 5:14-cv-04058-MWB, 5:14-cv-04059-MWB (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JAMES MOLLER,
No. C 14-4056-MWB
Plaintiff,
vs.
TYSON FOODS, INC., a foreign
corporation doing business in Iowa as
TYSON DELI, INC., and TYSON
DELI, INC.,

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

Defendants.
CAROL LORENZ,
No. C 14-4057-MWB
Plaintiff,
vs.
TYSON FOODS, INC., a foreign
corporation doing business in Iowa as
TYSON DELI, INC., and TYSON
DELI, INC.,

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

Defendants.
WILLIAM RAVELING,
No. C 14-4058-MWB
Plaintiff,
vs.
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

ROBERT SOLKO,
No. C 14-4059-MWB
Plaintiff,
vs.
MEMORANDUM OPINION AND
ORDER REGARDING PLAINTIFF’S
MOTION TO REMAND AND
DEFENDANTS’ MOTION TO
DISMISS

TYSON FOODS, INC., a foreign
corporation doing business in Iowa as
TYSON DELI, INC., and TYSON
DELI, INC.,
Defendants.

___________________________
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
2

“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”
3

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

4

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

1

More specifically, plaintiff Moller alleges the following:
3. . . . Preceding May 5, 2013, the Defendant
maintained a “hostile work environment”.
That said
environment had a detrimental effect on [Moller] both
physically and mentally to the extent that [Moller] had no
choice but to separate from his employment on May 5, 2013.
4.
That Defendant’s reason for maintaining a
“hostile work environment” was to bring about [Moller’s]
separation from employment because of [Moller’s] age. That
[Moller’s] age was a contributing factor and/or the factor in
causing the Defendant to maintain the “hostile work
environment”. . . .

Plaintiff Lorenz alleges the following:
3.
. . . During her employment [Lorenz] was the
subject of adverse employment actions involving wrongful
disciplines and termination (this took place on or about
December 6, 2012).
4.
The reason for [Lorenz’s] termination was
“pretextual.” [Lorenz’s] age was a contributing factor and/or
the factor resulting in [her] termination. . . .
Plaintiff Raveling alleges the following:
3.
. . . On or about February 19, 2013, [Raveling]
was terminated for “not working up to standard”.
4.
The reason for [Raveling’s] termination was
“pretextual”. [Raveling’s] age was a contributing factor
and/or the factor resulting in [Raveling’s] termination. . . .
Plaintiff Solko alleges the following:

5

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,

3.
. . . On or about November 23, 2012, [Solko]
was told to resign or be terminated for an incident that took
place during his shift. That as a result of Defendant’s
ultimatum [Solko] resigned.
4.
The reason for [Solko’s] forced separation from
employment was “pretextual”.
[Solko’s] age was a
contributing factor and/or the factor in [sic] resulting in
[Solko’s] separation from the company. . . .
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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 standard2 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

2

The “Twom-bal” standard is my nickname for the “plausibility” pleading
standard established in the United States Supreme Court’s twin decisions on pleading
requirements, and standards for dismissal for failure to state a claim upon which relief
can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for
claims in federal court. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009).
7

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 (stating the same standards).3
Various federal Circuit Courts of Appeals have expressly recognized that, in
addition to dismissal for factual implausibility, the Twom-bal standard still permits
3

In assessing “plausibility,” as required under the Twom-bal standard, the Eighth
Circuit Court of Appeals has explained that courts “consider[ ] only the materials that are
‘necessarily embraced by the pleadings and exhibits attached to the complaint,’” Whitney,
700 F.3d at 1128 (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir.
2003)), and “‘materials that are part of the public record or do not contradict the
complaint.’” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir.
2012) (quoting Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999),
and citing Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011)). A more complete
list of the matters outside of the pleadings that the court may consider, without converting
a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment, pursuant
to Rule 12(d), includes “‘matters incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint whose authenticity is unquestioned.’”
Miller, 688 F.3d at 931 n.3 (quoting 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2004)). Neither Tyson nor the
various plaintiffs submitted any materials outside of the pleadings here, however.
8

dismissal pursuant to Rule 12(b)(6) of a claim that lacks a cognizable legal theory. See,
e.g., Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013); Ball v. Famiglio, 726
F.3d 448, 469 (3d Cir. 2013) (a claim may be dismissed if it is based on an “indisputably
meritless legal theory”); Commonwealth Property Advocates, L.L.C. v. Mortgage
Electronic Registration Sys., Inc., 680 F.3d 1194, 1202 (10th Cir. 2011) (“Dismissal is
appropriate if the law simply affords no relief.”); see also Philadelphia Indem. Ins. Co.
v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013) (recognizing that a claim must
plead sufficient facts under a “viable legal theory”). The Eighth Circuit Court of Appeals
has suggested the same. See Brown v. Mortgage Electronic Registration Sys., Inc., 738
F.3d 926, 933 n.7, 934 (8th Cir. 2013) (noting the appellate court’s agreement “with the
district court’s sound reasoning that the facts pled do not state a cognizable claim under
Arkansas law” and holding that dismissal pursuant to Rule 12(b)(6) was appropriate,
because Arkansas law did not impose the purported duty on which an unjust enrichment
claim and a state statutory claim were based).
I will apply these standards in deciding whether to grant Tyson’s Motions To
Dismiss on the merits, as well as for failure of the plaintiffs to respond.
Here, both the ADEA and the ICRA provide a sound legal basis for the plaintiffs’
age discrimination claims, assuming that they are otherwise adequately pleaded, so that
they are not subject to dismissal for lack of a cognizable legal theory. See Brown, 738
F.3d at 933 n.7; Somers, 729 F.3d at 959; Ball, 726 F.3d at 469, Commonwealth
Property Advocates, 680 F.3d at 1202. What is woefully inadequate here is the pleading
of any adequate factual basis that makes the plaintiffs’ age discrimination claims
plausible, as required to survive dismissal under the Twom-bal standard. See Freitas,
703 F.3d at 438; Whitney, 700 F.3d at 1128; Richter, 686 F.3d at 850. One specific
failure is the lack of any pleadings of facts that would plausibly suggest adverse actions

9

or circumstances were because of each plaintiff’s age,4 even if some plaintiffs may have
adequately pleaded facts suggesting adverse actions or circumstances. See, e.g., Holmes
v. Trinity Health, 729 F.3d 817, 822 (8th Cir. 2013) (“To establish a prima facie case
[of age discrimination under the ADEA], [a plaintiff] [i]s required to show she: ‘(1) was
at least forty years old, (2) suffered an adverse employment action, (3) was meeting [her]
employer’s legitimate expectations at the time of the adverse employment action, and
(4) was replaced by someone substantially younger.’” (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 856 (8th Cir.), cert. denied, ––– U.S. ––––, 133 S.Ct. 313 (2012),
with internal quotations omitted)). Plaintiff Moller has pleaded no facts from which one
could plausibly conclude that the working environment to which he was subjected was
“hostile,” let alone that such “hostility” was because of his age; plaintiff Lorenz has
pleaded no facts from which one could plausibly conclude that the disciplinary action
against her was “wrongful” or was a “pretext” for age discrimination; plaintiff Raveling
has pleaded no facts from which one could plausibly conclude that a charge of “not
working up to standard” was a “pretext” for age discrimination; and plaintiff Solko has
4

As the Eighth Circuit Court of Appeals recently explained,
[T]he 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) . . . provide a right of action for an
employee who is terminated “because of” his age. 29 U.S.C.
§ 623(a)(1); Iowa Code § 216.6(1)(a). The statutes require
slightly different showings of causation, compare Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 178, 129 S.Ct. 2343,
174 L.Ed.2d 119 (2009) (ADEA plaintiff must show that age
discrimination was a “but[ ] for” cause of his termination)
with DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 13 (Iowa
2009) (ICRA plaintiff need only show that age discrimination
was a “motivating factor”).

Ridout v. JBS USA, L.L.C., 716 F.3d 1079, 1083 (8th Cir. 2013).
10

pleaded no facts from which one could plausibly conclude that a demand that he “resign
or be terminated for an incident that took place during his shift” was a “pretext” for age
discrimination. Instead, each plaintiff has pleaded no more than conclusions and labels,
which is not sufficient to survive a Rule 12(b)(6) motion under the Twom-bal. Whitney,
700 F.3d at 1128; Gallagher, 699 F.3d at 1016. Tyson’s Motion To Dismiss each
plaintiff’s Amended Complaint will be granted.
The remaining question is whether I should grant each plaintiff the opportunity to
file another amended complaint attempting to plead adequately his or her age
discrimination claim. The time to amend “as a matter of course” in the face of Tyson’s
Motions To Dismiss, which identified numerous inadequacies in each plaintiff’s
pleadings, has now passed. See FED. R. CIV. P. 15(a)(1) (as amended in 2009). Thus,
any request to amend now would stand on the footing of a “post-dismissal” request to
amend, which is subject to more stringent standards than the “freely given” standard
stated in Rule 15(a). That more stringent standard involves “[c]onsiderations [that]
include whether the pleader chose to stand on its original pleadings in the face of a motion
to dismiss that identified the very deficiency upon which the court dismissed the
complaint; reluctance to allow a pleader to change legal theories after a prior dismissal;
whether the post-dismissal amendment suffers from the same legal or other deficiencies
as the dismissed pleading; and whether the post-dismissal amendment is otherwise futile.”
Meighan v. TransGuard Ins. Co. of Am., Inc., 978 F. Supp. 2d 974, 982 (N.D. Iowa
2013). The decision to stand on the pleadings here, despite Tyson’s challenges, see id.—
like the failure to seek remand on grounds that would defeat all of the bases for removal—
is more likely a failure of judgment by counsel than a failure of judgment by the individual
plaintiffs. There is also no reason to believe that the plaintiffs cannot adequately plead,
as opposed to have not adequately pleaded, a factual basis for their age discrimination
claims. Thus, attempts to amend their pleadings are not necessarily futile nor would any
11

amendment necessarily have to rely on a change of legal theories. Id. Under these
circumstances, I conclude that, while dismissal of the plaintiff’s present pleadings is
appropriate, dismissal without leave to amend would not be appropriate.
THEREFORE,
1.

Each plaintiff’s July 30, 2014, “Resistance To Defendants [sic] Notice Of

Removal,” which I construed as a “Motion To Remand To State Court,”5 is denied;
2.

Tyson’s July 17, 2014, Motion To Dismiss pursuant to Rule 12(b)(6) in

each case6 is granted; but
3.

Each plaintiff shall have to and including October 9, 2014, to file another

Amended Complaint attempting to plead adequately his or her federal and state age
discrimination claims.
IT IS SO ORDERED.
DATED this 9th day of September, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

5

The Motion To Remand To State Court is docket no. 5 in each case.

6

Tyson’s Motion To Dismiss is docket no. 4 in each case.
12