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United States District Court for the Northern District of Texas, Amarillo Division
December 17, 2021, Decided; December 17, 2021, Filed
Before the Court is the Defendant's Reply in Support of Motion to Dismiss Second Amended Complaint (ECF No. 54). For the reasons stated below, the Motion to Dismiss Second Amended Complaint ("Motion") (ECF No. 51) is GRANTED.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 12(b)(6) and Texas Civil Practice and Remedies Code § 148.003, the Court grants the Motion because Plaintiff has failed to plead "enough facts to state a claim that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The Court must "accept as true all allegations contained in a complaint," however, that principle is "inapplicable to legal conclusions."
On August 20, 2021, the Court allowed Plaintiffs to amend their First Amended Petition to be in compliance with Texas's new PLPA requirements that went into effect June 14, [*2] 2021. (ECF No. 48). The Court explained that Plaintiffs' First Amended Complaint was insufficient to meet the new standards — noting specifically the Complaint's failure to allege "reasonable scientific evidence" that Swift's actions caused the Plaintiffs to contract Covid-19. (ECF No. 48, at 2). The Court also explained that the dates the Plaintiffs contracted COVID-19 must be alleged; otherwise, "it is impossible for the Court to determine if Defendants had a 'reasonable opportunity' to implement government-promulgated standards or warn the Plaintiffs of dangerous infectious conditions." (ECF No. 48, at 3).
Plaintiffs timely submitted their Second Amended Complaint; however, the Complaint was virtually unchanged from the original and still deficient under Texas law. (ECF No. 49). The Complaint fails to include any specific facts that would connect Defendant to each individual Plaintiffs' diagnosis. (ECF No. 49). The language of the Complaint is still silent to "reliable scientific evidence" requirement under PLPA. (ECF No. 49). Further, the Complaint still does not include the alleged dates for when the Plaintiffs contracted COVID-19, making it impossible for Plaintiffs to satisfy [*3] the "failure-to-warn" or "failure-to-implement" prongs.
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2021 U.S. Dist. LEXIS 241825 *; 2021 WL 5997185
SIMON GARCIA, et al., Plaintiffs, v. SWIFT BEEF CO., et al., Defendants.
Prior History: Garcia v. Swift Beef Co., 2021 U.S. Dist. LEXIS 126462, 2021 WL 2826791 (N.D. Tex., July 7, 2021)
amended complaint, cure, leave to amend, scientific evidence, contracted, amend