United States District Court, D. Oregon
FREDERICK JAMES Plaintiff, Pro Se.
FRANCIS T. BARNWELL MEGAN J. CROWHURST, Attorneys for
OPINION AND ORDER
J. BROWN United States District Judge.
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.
4, 2015, Defendant Sapa Profiles, Inc.,  hired Plaintiff
John Frederick James as a general laborer in the coatings
department of its Portland facility.
Third Amended Complaint Plaintiff alleges the following
(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
(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
(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.
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.
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.
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.
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.
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.
March 1, 2017, Plaintiff filed a motion for default in state
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.
March 17, 2017, Plaintiff filed in this Court a Motion to
Remand to State Court.
April 4, 2017, Defendant filed a Motion to Dismiss. The Court
took both Motions under advisement on May 2, 2017.
MOTION (#9) TO REMAND TO STATE COURT
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.
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). “Removal and subject matter
jurisdiction statutes are strictly construed, and a defendant
seeking removal has the burden to establish that removal is
proper and ...