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Law360 (March 2, 2021, 11:00 PM EST ) A Nebraska federal judge has dismissed a suit lodged by ACLU-backed meatpacking workers who claimed the plant where they formerly worked didn't take proper safety precautions to stop the spread of the coronavirus, finding they lack standing because they no longer work at the plant.
U.S. District Judge John M. Gerrard said Monday that the three ex-workers, who are represented by the American Civil Liberties Union, can't show injuries because they no longer work at Noah's Ark Processors LLC in Hastings, Nebraska, and so they no longer face a threat any greater than a member of the public.
"The people directly put at risk by Noah's Ark's alleged misconduct are the people who work there now, and the plaintiffs cannot assert their claims for them," the judge said. "The 'emotional distress and fear' the plaintiffs say they would suffer if their former co-workers caught COVID-19 won't suffice to allow them to sue in their own right."
The three former workers, who go by pseudonyms in the complaint, and a local doctor sued Noah's Ark seeking an injunction in November. They claim that the company failed to create distance between the workers, who stand shoulder to shoulder, and that they never provide new masks, even as the old ones are soiled with blood, fat and sweat. They also claim that the company failed to provide adequate sick leave. The trio quit because of the poor working conditions, the suit alleges.
The judge noted Monday that because they are no longer employees, they are simply members of the local community, and it would be speculative to assign their possible risk for contracting COVID-19 to the plant alone.
"The plaintiffs rely on the threat COVID-19 poses to their community ... but as we've all learned over the past year, there are lots of ways for COVID-19 to spread in a community, through other meat processing facilities (as the plaintiffs point out), other employers, and other gathering places," he said.
Judge Gerrard also declined to allow the workers to sue on behalf of their former co-workers, finding that they failed to show why third-party standing is necessary.
"The former-employee plaintiffs have been proceeding in this case pseudonymously because of possible retaliation, but the plaintiffs haven't articulated any reason why current employees couldn't do the same," he said. "Even in the rare instances when litigants may assert the interests of others, the litigants themselves still must have suffered an injury in fact, thus giving them a sufficiently concrete interest in the outcome of the issue in dispute."
The former workers are represented by Adam Sipple and Rose Godinez of ACLU Foundation of Nebraska Inc., Spencer Amdur, Julie Verof, Lee Gelernt, and Noor Zafar of the ACLU Foundation, and Julie Veroff of Cooley LLP.
Noah's Ark is represented by W. Patrick Betterman of Betterman Law Firm.
The case is Alma et al. v. Noah's Ark Processors LLC, case number 4:20-cv-03141, in the U.S. District Court for the District of Nebraska.
--Editing by Breda Lund.
For a reprint of this article, please contact reprints@law360.com.
