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James v. Sapa Extrusions North America

United States District Court, D. Oregon

June 23, 2017


          JOHN FREDERICK JAMES Plaintiff, Pro Se.

          FRANCIS T. BARNWELL MEGAN J. CROWHURST, Attorneys for Defendant.


          ANNA J. BROWN United States District Judge.

         This matter comes before the Court on Plaintiff's Motion (#9) to Remand and Defendant's Rule of Civil Procedure 12(b)(1) and 12(b)(6)Motion (#16) to Dismiss. For the reasons that follow, the Court DENIES Plaintiff's Motion to Remand, GRANTS Defendant's Motion to Dismiss, and GRANTS Plaintiff leave to file a Fourth Amended Complaint as set out in this Opinion and Order.


         On May 4, 2015, Defendant Sapa Profiles, Inc., [1] hired Plaintiff John Frederick James as a general laborer in the coatings department of its Portland facility.

         In his Third Amended Complaint Plaintiff alleges the following facts:

(1) In July 2015 he reported to his manager and a co-worker that “the sweeper” batteries had not been changed even though the “green card sheet” stated they had been changed on June 18, 2015.
(2) In August 2015 Plaintiff provided plans to co-workers to fix the spray booth that was over-spraying, and his coworkers “wadded [them] up and [threw] them away.”
(3) On October 10, 2015, a coworker told Plaintiff not to come to work the following day. When Plaintiff stated he planned to come to work the next day, his coworker responded: “Boy, you are just looking to get hurt aren't you?”
(4) On October 10, 2015, Plaintiff telephoned the warehouse manager, Sam Gress, about his coworker's comment but Gress did not meet with Plaintiff or return any more telephone calls from Plaintiff.
(5) On October 11, 2015, when Plaintiff arrived at work, three coworkers met him in the parking lot and told him: “I told you not to show up.”, “What's it take a bad accident for you to get hurt or something before you realize no one wants you here?”, and “Don't come back.”
(6) At some point Plaintiff contacted his union representative about the October 11, 2015, incident, and his representative suggested Plaintiff apply for unemployment compensation.
(7) On October 23, 2015, Plaintiff received a letter from Defendant stating Plaintiff was “a voluntary quit” because he had missed three or more unreported days of work.

         On July 18, 2016, Plaintiff filed a complaint with the Oregon Bureau of Labor and Industries (BOLI) alleging he was terminated for whistle blowing activities in violation of Oregon Revised Statutes § 659A.199 and he was also subjected to a hostile work environment. Specifically, Plaintiff alleged he reported to his manager and a lift driver in July 2015 that (1) the batteries on “the sweeper” were in dangerous condition and could explode at any time; (2) the maintenance log falsely reflected the batteries for the sweeper had been replaced on July 18, 2015; and (3) “the green card sheet” falsely reflected maintenance had replaced “the blower motor.” Plaintiff also alleged he was told by his work partner on October 10, 2015, that Defendant would not need Plaintiff to report to work the following day, and when Plaintiff stated he was going to come to work anyway, his work partner responded: “Man! You must want to get hurt.” Plaintiff arrived for his shift on October 11, 2015, and was threatened by three of Defendant's employees “in retaliation for [his] earlier reports.” Defendant, however, alleges Plaintiff was sent home because he was not scheduled to work. In mid-October 2015 Plaintiff met with his union representative regarding his allegedly hostile work environment and asked when he could return to work. On October 23, 2015, Plaintiff received a letter from Defendant in which Defendant stated Plaintiff had voluntarily resigned because he had not been to work since October 11, 2015. Plaintiff did not file a complaint with the Equal Employment Opportunity Commission (EEOC) nor did BOLI cross-file Plaintiff's complaint with the EEOC.

         On November 2, 2016, BOLI issued to Plaintiff a right-to-sue letter in which it advised Plaintiff that he had “the right to file a suit in state circuit court . . . within 90 days from the date of this letter. After 90 days, this right will be lost.” Def.'s Mot. to Dismiss, Ex. B at 1.

         On January 27, 2017, Plaintiff filed a pro se complaint against Defendant in Multnomah County Circuit Court alleging claims for employment discrimination in violation of Title VII, 42 U.S.C. § 2000e-(a); the NLRA, 29 U.S.C. § 157; Oregon Revised Statutes §§ 243.672(1), 659A.030(1)(f), 659A.199, and 659A.200-659A.236; and the Revised Code of Washington (RCW) §§ 49.60.210 and 41.56.140. Plaintiff served Defendant with the complaint on January 30, 2017.[2]

         On February 3, 2017, Plaintiff filed an amended complaint in state court against Defendant to add facts to support his claims. Plaintiff served his amended complaint on Defendants on February 6, 2017.

         On February 28, 2017, Defendant removed the matter to this Court on the grounds of both federal-question and diversity jurisdiction. Defendant served Plaintiff with its Notice of Removal on February 28, 2017.

         On March 1, 2017, Plaintiff filed a motion for default in state court.

         On March 3, 2017, Plaintiff filed a third amended complaint in state court. Plaintiff did not serve the third amended complaint on Defendant. Nevertheless, Defendant attaches the third amended complaint to its Notice of Removal and notes it relies on the third amended complaint as the operative complaint in the matter before this Court. The Court, therefore, also construes Plaintiff's third amended complaint as the operative Complaint in this Court.

         On March 17, 2017, Plaintiff filed in this Court a Motion to Remand to State Court.

         On April 4, 2017, Defendant filed a Motion to Dismiss. The Court took both Motions under advisement on May 2, 2017.


         In his Motion to Remand Plaintiff seeks an order remanding this matter to state court. Plaintiff concedes in his Motion that this Court “would normally have had original jurisdiction pursuant to 28 USC 1332(a), ” but “the ‘right to file suit' letter that Plaintiff received from [BOLI] specifically stated that plaintiff has the right to file in the State Circuit Court.” Pl.'s Mot. at 2. Plaintiff also asserts Defendant removed the action “past the original 21 day statute for answer . . . [and] plaintiff never received an answer or notice of any type” that constituted a response to his state-court complaint. Plaintiff, therefore, asserts Defendant removed the matter “in an attempt to avoid Plaintiff filing for Default.” Id.

         I. Standards

         28 U.S.C. § 1446(a) provides in pertinent part: “A defendant or defendants desiring to remove any civil action . . . from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal." A motion to remand is the proper procedure for challenging removal. Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9thCir. 2007). ‚ÄúRemoval and subject matter jurisdiction statutes are strictly construed, and a defendant seeking removal has the burden to establish that removal is proper and ...

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