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Spice v. General Motors Fort Wayne Assembly

United States District Court, N.D. Indiana, Fort Wayne Division

July 3, 2019

JAMES L. SPICE, Plaintiff,


          William C. Lee, Judge.

         This matter is before the Court on two motions filed by Plaintiff James Spice. The first is a pleading Spice titled “Objection to Removal of Cause Number: 02D03-1812-CT-000704 to Federal Jurisdiction Under 28 [U.S.C.] 1331, 1441, 1446” that he filed on January 14, 2019 (ECF 10) and which this Court construes as a motion to remand. Defendant General Motors filed a response in opposition on January 25, 2019 (ECF 19) but Spice did not file a reply. The second pending motion is Spice's Motion to Amend Complaint, which he filed on June 18, 2019 (ECF 63) and to which General Motors filed a response on July 2, 2019 (ECF 66). As of the date of this Opinion and Order the time for filing a reply has not expired, but the Court concludes that both motions can be resolved absent any reply brief from Plaintiff. For the reasons explained below, both motions are DENIED.


         1. Objection to Removal (Motion to Remand).

         James Spice, proceeding pro se, filed this suit against General Motors and Continental Structural Plastics in state court on December 10, 2018, alleging that the Defendants, his former employers, are liable to him under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et seq. (“USERRA”). Original Complaint (ECF 6), pp. 1-2.[1] He also alleged several state law tort claims. Id., p, 2. Defendant General Motors removed the case to this Court on January 9, 2019, on the basis of federal question jurisdiction since Spice had asserted a USERRA claim. Notice of Removal (ECF 1). It appears that Spice has abandoned his objection to removal and no longer seeks remand, but his motion remains pending nonetheless and so the Court will rule on it. That ruling is that General Motors exercised its statutory right to remove this case to federal court on the basis of federal question jurisdiction and Spice's disappointment over removal does not constitute grounds for a remand.

         Spice objected to removal primarily because he felt General Motors was removing the case to federal court merely to be oppressive. He states in his motion to remand that his “[o]bjection to transfer Jurisdiction from State Court to Federal Court is due primarily due [sic] to Professional and Official Misconduct, Bias, and Prejudicial treatment towards the Plaintiff by several federal jurisdictions in investigating this matter.” Motion to Remand, p. 2. He further contends that “[m]oving this case to Federal court for issues the lower courts have jurisdiction in is not right. As it would allow the other claims/allegations-the defendants would be allowed to stand mute, and not be held accountable.” Id. (verbatim). But again, it is Spice who is alleging a violation of a federal law-the USERRA-and that means jurisdiction is proper in federal court.

         As this Court explained in another case:

USERRA was enacted in part “to prohibit discrimination against persons because of their service in the uniformed services.” 38 U.S.C. § 4301(a)(3). Specifically,

         USERRA grants the following protections:

(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.
(b) An employer may not discriminate in employment against or take any adverse employment action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter [38 USCS §§ 4301 et seq.], (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter [38 USCS §§ 4301 et seq.], or (4) has exercised a right provided for in this chapter [38 USCS §§ 4301 et seq.]. The prohibition in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services.

Wolfgram v. G4S Secure Sols. (USA), Inc., 2018 WL 5016337, at *2-3 (N.D. Ind. Oct. 15, 2018) (quoting 38 U.S.C. § 4311). Spice's claim under USERRA arises from an incident that occurred on April 7, 2017, during which a coworker accused Spice of lying about his military service and allegedly physically threatened Spice. Spice recounts the incident as follows:

On, or about 4/7/2017 . . . Plaintiff was aggrievedly engaged in hostile conduct by an employee of GM Fort Wayne . . . in reference to past military service in Iraq. The abusive conduct included profanities by the [coworker], and a hostile/combative body posture that made plaintiff feel intimidated, hostile, and abused. [The coworker] is a black, African race, foreign national at the time of this incident, or claimed to be from North Central Africa, and spoke with a very strong accent.

         Amended Complaint (ECF 18), p. 6. Spice elaborated a bit about this confrontation in one of the exhibits he attached to his Amended Complaint. In an email to the Department of Labor, the subject line of which stated “Whistleblower ...

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