The opinion of the court was delivered by: WILLIAM H. ORRICK
Plaintiff, Richard Lyster, moves to remand this case to the Superior Court for the State of California in and for the County of San Francisco. Defendants First Nationwide Bank, First Nationwide Financial Corporation, Ford Motor Company ("Ford"), and Lucile Reid (collectively "defendants") move to dismiss several causes of action in the complaint they removed to this Court. For the reasons stated herein, the Court finds that it is without jurisdiction over plaintiff's complaint and grants his motion to remand. Accordingly, defendants' motion to dismiss is denied as moot.
As is always the case on a motion to dismiss, the Court accepts as true the allegations contained in the complaint. Arcade Water Dist. v. United States, 940 F.2d 1265, 1267 (9th Cir. 1991). The operative "complaint" for purposes of these motions is the one plaintiff filed January 28, 1993, in the California Superior Court; this is also the complaint removed to this Court on February 25, 1993. Plaintiff filed a first amended complaint on March 15, 1993. He did so without leave of this Court or his opposing parties' consent. Although plaintiff may have thought his amendment proper under Rule 15(a) of the Federal Rules of Civil Procedure (party may amend his "pleading once as a matter of course at any time before a responsive pleading is served"), the first amended complaint may not be used to defeat the removal of plaintiff's case to federal court. 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure: Civil § 1477, at 562 (2d ed. 1990) ("[A] party may not employ Rule 15(a) to interpose an amendment that would deprive the district court of jurisdiction over a removed action.").
Plaintiff worked for First Nationwide from July 13, 1987, until he was terminated on February 14, 1992. First Nationwide, a federal savings bank, is owned by Ford. Ford also owns The Associates, a savings and loan institution. During the course of his employment at First Nationwide, plaintiff administered the Ford Employee Banking Program.
On February 8, 1991, plaintiff was assigned to work with The Associates and to assist with Ford's APEX program; the APEX program "booked" loans in First Nationwide's name. Prior to February 8, 1991, the Office of Thrift Supervision ("OTS") and the Federal Deposit Insurance Corporation had found the APEX program in a state of noncompliance with federal banking regulations dealing with affiliate transactions.
On October 4, 1991, plaintiff complained to senior management at First Nationwide that the APEX program continued to operate in violation of federal and state laws; plaintiff specifically cited 12 U.S.C. § 371c, which places restrictions on transactions with affiliates. On January 2, 1992, plaintiff advised First Nationwide of his intention to give additional information of the allegedly illegal activities to the OTS. Plaintiff did write to the OTS on February 14, 1992, concerning his knowledge of the affiliate transaction violations. Later that same day, plaintiff was summarily discharged. Between the time plaintiff notified senior management of the continuing violations and the date of his termination, plaintiff was placed on performance improvement, his responsibilities were limited, and he started reporting to an individual who had less seniority than did plaintiff's previous supervisor.
Plaintiff had experienced other problems at First Nationwide prior to his termination. Beginning in April 1990, plaintiff reported to Reid. Reid allegedly made unwelcome and unsolicited verbal remarks of a sexual nature that created an offensive and hostile work environment for plaintiff. On December 3, 1991, plaintiff gave notice to First Nationwide that he was the victim of sex discrimination and sexual harassment. On December 12, 1991, Reid placed plaintiff in the performance improvement program.
On January 29, 1992, plaintiff filed a charge with the California Department of Fair Employment and Housing ("DFEH"), alleging sex discrimination and sexual harassment by Reid. On February 13, 1992, one day before his termination, plaintiff's supervisors received notice that plaintiff had filed a charge with the DFEH and that he had contacted the OTS.
Plaintiff filed his complaint in the California Superior Court on January 28, 1993. Plaintiff stated six causes of action: (1) wrongful termination, (2) sexual harassment, (3) sex discrimination, (4) age discrimination, (5) retaliation, and (6) tortious interference with contractual relationship. Defendants removed plaintiff's complaint to this Court on February 25, 1993.
The federal question removal statute provides in pertinent part: "Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." 28 U.S.C. § 1441(b). "The party invoking the removal statute has the burden of establishing federal jurisdiction." Holcomb v. Bingham Toyota, 871 F.2d 109, 110 (9th Cir.), cert. denied, 493 U.S. 846, 107 L. Ed. 2d 100, 110 S. Ct. 141 (1989).
To determine whether plaintiff's suit arises under federal law, the Court must apply the "well ...