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United States District Court for the Eastern District Of Case 2:20-cv-02594-JP Document 1 Filed 06/02/20 Page 1 of 20 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ______________________________________ : FERDINAND BENJAMIN, Individually : and as the Personal Representative of the : Estate of ENOCK BENJAMIN, Deceased : 957 Anchor Street : Philadelphia, PA 19124 : : Plaintiff : : vs. : CIVIL ACTION NO. _________________ : JBS S.A. : Avenida Brig Faria Lima 2.391 2 : Andar Jd Paulistano : Sao Paulo, SP 01452-000 Brazil : : JBS USA FOOD COMPANY : 1770 Promontory Circle : Greeley, CO 80634 : : JBS USA HOLDINGS, INC. : 1770 Promontory Circle : Greeley, CO 80634 : : JBS SOUDERTON, INC. : c/o Corporation Service Company : 2595 Interstate Drive, Suite 103 : Harrisburg, PA 17110 : : and : : PILGRIM’S PRIDE CORPORATION : c/o Corporation Service Company : 2595 Interstate Drive, Suite 103 : Harrisburg, PA 17110 : : Defendants : _____________________________________ Case 2:20-cv-02594-JP Document 1 Filed 06/02/20 Page 2 of 20 NOTICE OF REMOVAL Defendant JBS USA Food Company files its Notice of Removal to remove this action to the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446, and the doctrine of fraudulent joinder. Plaintiff Ferdinand Benjamin, individually and as the personal representative of the Estate of Enock Benjamin, deceased (“Plaintiff”) originally filed this action in the Philadelphia County Court of Common Pleas, May Term, 2020, Case No. 370, where the action is currently pending. I. NATURE OF THE ACTION 1. This is a wrongful death and survival action filed by the son of a deceased employee of JBS Souderton, Inc., which is a workers’ compensation subscriber. (See generally Complaint – Civil Action (“Compl.”) attached hereto as Exhibit (“Ex.”) A; see also Declaration of Amanda Keller (“Keller Dec.”) ¶¶ 6, 12 attached as Ex. B; Declaration of Stephany Rockwell (“Rockwell Dec.”) ¶¶ 3-4 attached as Ex. C and Attachment 1 thereto.) 2. The son, Plaintiff Ferdinand Benjamin, claims his father, Enock Benjamin, was allegedly exposed to COVID-19 in March 2020—the period in which Enock Benjamin “was a union steward” employed with JBS Souderton, Inc., which is a “meat processing plant” located in Souderton, Pennsylvania. (Compl. ¶¶ 3, 58-68.) 3. Plaintiff alleges JBS Souderton, Inc. “ignored worker safety” by failing to follow “federal guidance”—that is, guidelines issued by the Occupational Safety and Health Administration (“OSHA”) and the Centers for Disease Control and Prevention (“CDC”)—during the early days of the COVID-19 pandemic in the United States. (Id. ¶¶ 6-7, 20-23.) 2 Case 2:20-cv-02594-JP Document 1 Filed 06/02/20 Page 3 of 20 4. Plaintiff also claims that “[b]y keeping the Souderton plant open without providing the proper and recommended safety precautions, JBS intentionally misrepresented the safety of the facility.” (Id. ¶ 11.) 5. Although Enock Benjamin’s last day at the JBS Souderton, Inc. plant was March 27, 2020 (id. ¶ 93), Plaintiff does not allege Mr. Benjamin tested positive for COVID-19 on or before that date. (See generally Compl.) 6. The lawsuit also does not allege that anyone, let alone JBS Souderton, Inc., knew that Enock Benjamin was ill, let alone ever infected with COVID-19. (Id.) 7. On April 3, 2020, Enock Benjamin passed-away allegedly “from respiratory complications related to COVID-19.” (Id. ¶¶ 95-96.) 8. Plaintiff fails to allege when, where, or how Enock Benjamin allegedly became infected with COVID-19 and does not state whether Enock Benjamin was diagnosed with COVID- 19 before he died. (See generally Compl.) 9. There is no indication he sought any medical treatment or received a positive diagnosis of COVID-19 prior to his death. (Id.) 10. Approximately one month after Enock Benjamin died, Plaintiff filed this wrongful death and survival action in Philadelphia County, Pennsylvania seeking damages for Enock Benjamin’s alleged work-related injuries. (See id.) 11. Plaintiff alleges negligence, fraudulent misrepresentation, and intentional misrepresentations claims against five defendants. (Id. ¶¶ 147-195.) 3 Case 2:20-cv-02594-JP Document 1 Filed 06/02/20 Page 4 of 20 12. Besides suing Enock Benjamin’s employer JBS Souderton, Inc., Plaintiff names the following companies as co-defendants: (a) JBS S.A.; (2) JBS USA Food Company; (3) JBS USA Holdings, Inc.1; and (4) Pilgrim’s Pride Corporation. (Id. ¶¶ 114-125, 130-133.) 13. Plaintiff does not allege that Enock Benjamin was employed by any of JBS Souderton, Inc.’s co-defendants or ever visited their offices. (See generally Compl.) 14. The absence of such allegations is not surprising because JBS S.A. is based in Brazil and the other companies, to the extent they existed, are incorporated in Delaware with their principal places of business located in Colorado. (Id. ¶¶ 114, 118, 122, 130.) II. REMOVAL IS TIMELY 15. On May 7, 2020, Plaintiff filed a Complaint – Civil Action (“Complaint”) in the Philadelphia County Court of Common Pleas, styled Ferdinand Benjamin, Individually and as the Personal Representative of the Estate of Enock Benjamin, Deceased v. JBS S.A., JBS USA Food Company, JBS USA Holdings, Inc., JBS Souderton, Inc., and Pilgrim’s Pride Corporation, May Term 2020, Case Number 370. (See Ex. A, Compl.) 16. Service was made on JBS USA Food Company on May 14, 2020. (Id.) 17. Plaintiff also claims to have served JBS USA Holdings, Inc. on May 14, 2020 (id.), but that entity’s existence ended approximately five (5) years before the events giving rise to Plaintiffs’ claims in the Complaint. 18. To date, there is no information demonstrating Plaintiff has served Defendants JBS S.A., JBS Souderton, Inc., or Pilgrim’s Pride Corporation. (Id.) 1 JBS USA Holdings, Inc.’s corporate existence ended in 2015. (See Clayton E. Bailey letter dated May 29, 2020, attached as Ex. D.) 4 Case 2:20-cv-02594-JP Document 1 Filed 06/02/20 Page 5 of 20 19. Pursuant to 28 U.S.C. § 1446(a), a copy of the Complaint and all process and pleadings served upon JBS USA Food Company and other alleged defendants are attached to this notice as Exhibit “A.” 20. Pursuant to 28 U.S.C. § 1446(b), this Notice is filed within thirty (30) days of the date JBS USA Food Company was served with the Complaint. 21. Defendants JBS S.A. and Pilgrim’s Pride Corporation consent to removal. (See Ex. D.) 22. Defendant JBS USA Holdings, Inc. has not existed for five years and thus its consent is unnecessary. (See id. and attachments thereto.) 23. Defendant JBS Souderton, Inc.’s consent is immaterial because Plaintiff fraudulently joined JBS Souderton, Inc., see Balazik v. Cty. of Dauphin, 44 F.3d 209, 213 n.4 (3d Cir. 1995), but JBS Souderton, Inc. consents to removal. See id. III. REMOVAL IS PROPER 24. Removal is proper pursuant to 28 U.S.C. § 1332 because complete diversity exists between Plaintiff and Defendants JBS S.A., JBS USA Food Company, JBS USA Holdings, Inc. (which has not been in existence since 2015), and Pilgrim’s Pride Corporation, the amount-in- controversy exceeds $75,000.00, and because Plaintiff fraudulently joined JBS Souderton, Inc., as a defendant. 25. Additionally, removal is proper under 28 U.S.C. § 1331 because this action arises under the Constitution, laws, or treaties of the United States. 26. Each basis for jurisdiction will be addressed in turn. 5 Case 2:20-cv-02594-JP Document 1 Filed 06/02/20 Page 6 of 20 A. Complete Diversity Exists and the Amount-in-Controversy Exceeds $75,000.00. 27. Plaintiff Ferdinand Benjamin is alleged to be a citizen of Pennsylvania. (Compl. ¶ 111.) 28. The deceased, Enock Benjamin, is also alleged to have been a citizen of Pennsylvania. (Id. ¶ 113.) 29. Defendant JBS USA Food Company is a Delaware corporation with its principal place of business in Colorado. (Id. ¶ 118.) 30. Defendant JBS USA Holdings, Inc., which ceased to exist in 2015, was once a Delaware corporation with its principal place of business in Colorado. (Id. ¶ 122.) 31. Defendant JBS S.A. is a corporation organized and existing under the laws of Brazil with its principal place of business located in Brazil. (Id. ¶ 116.) 32. Defendant Pilgrim’s Pride Corporation is a Delaware corporation with its principal place of business in Colorado. (Id. ¶ 130.) 33. Defendant JBS Souderton, Inc. is a Pennsylvania corporation with its principal place of business in Pennsylvania (id. ¶ 126), but the Court should disregard JBS Souderton, Inc.’s citizenship for jurisdictional purposes because Plaintiff fraudulently joined JBS Souderton, Inc. See Section III.B, infra. 34. If liability is imposed and damages are awarded in this case (which is contested), Plaintiff will seek damages exceeding $75,000.00. 35. Plaintiff has filed a wrongful death and survival action under 42 Pa.C.S. §§ 8301 and 8302. The purpose of the Wrongful Death Act is to compensate the spouse, children, or parents of a decedent for the loss of earnings of the deceased occasioned by the negligence of a defendant(s). The Survival Act allows a personal injury action brought by the decedent’s personal 6 Case 2:20-cv-02594-JP Document 1 Filed 06/02/20 Page 7 of 20 representative. Both are derivative actions, in that each is based on the existence of an underlying negligence action. 36. Although liability is disputed, the Complaint alleges “Enock Benjamin’s wrongful death beneficiaries incurred or have been caused to incur and pay large and various expenses for medical treatment, hospital care and medicine rendered to decedent until the time of his death and to incur various funeral, burial, and estate and administration expenses for which Plaintiff is entitled to compensation.” (Compl. ¶ 190 (emphasis added).) 37.
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