The opinion of the court was delivered by: D. LOWELL JENSEN
On April 26, 1995, the Court heard arguments on plaintiff's motion for remand. Having considered the arguments of counsel, the applicable law, and the papers submitted, the Court hereby GRANTS plaintiff's motion.
Plaintiff Joe Le's Second Amended Complaint was filed on January 24, 1995. Defendants timely answered the complaint in San Mateo County Superior Court on February 24, 1995. Also on February 24, 1995, defendants removed the action to this Court, contending that the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et seq. preempted plaintiff's fourth cause of action.
After approximately seven years of employment with defendant Applied Biosystems, plaintiff's Joe Le's employment was terminated. Plaintiff says that defendants, including plaintiff's supervisor, defendant Bruce Alleman, claimed that plaintiff had played a computer game during work hours, in contravention of purported company policy. Despite plaintiff's denial of this allegation, he was fired. He was terminated just two days after he informed his employer that his daughter required a liver transplant operation and that, if no donor were found, plaintiff would be the donor. Plaintiff added that the procedure was an expensive one, and that, if he were the donor, he would require a two or three month leave of absence.
28 U.S.C. § 1447(c) requires the remand of a case if subject matter jurisdiction is lacking.
Defendants assert that plaintiff's fourth cause of action for disability discrimination is, in reality, a claim arising under ERISA. ERISA prohibits discharge of employees to avoid payment of medical benefits. As part of his fourth cause of action, plaintiff claims that he was discharged so that his employer would not have to pay for his daughter's liver transplant. As such, defendant argues that ERISA preempts the fourth cause of action, and removal was proper.
Plaintiff concedes that, if no exception to preemption exists, his fourth cause of action would be preempted by ERISA. He argues, however, that the claim falls within a narrow exception to ERISA preemption. In Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 77 L. Ed. 2d 490, 103 S. Ct. 2890 (1983), the Supreme Court held that a state anti-discrimination law is not preempted by ERISA where the state law prohibits practices which are also unlawful under federal law. Plaintiff claims that the conduct alleged as part of his fourth cause of action--that he was terminated because defendants wished to avoid paying medical benefits to him, an individual perceived to have a disability, or to his ...