Jerry Trahan v. U.s. Bank National Association

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY TRAHAN,
Plaintiff - Appellee,
v.
U.S. BANK NATIONAL
ASSOCIATION,
Defendant - Appellant.
No. 10-15665
D.C. No. 3:09-cv-03111-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted May 10, 2010
San Francisco, California
Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.
Defendant-Appellant U.S. Bank National Association (U.S. Bank) appeals
the district court’s order remanding this case to state court. As the facts and
procedural history are familiar to the parties, we recite them here only as necessary
to explain our decision.
FILED
MAY 18 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We granted U.S. Bank permission to appeal on March 29, 2010.1
2
U.S. Bank removed this case to federal court on the basis of diversity under
28 U.S.C. § 1332(a) and § 1332(d) (the Class Action Fairness Act, or CAFA).
Plaintiff-Appellee Jerry Trahan (Trahan) subsequently moved to remand. The
burden of establishing removal jurisdiction, even in CAFA cases, lies with the
defendant seeking removal. Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 686
(9th Cir. 2006) (per curiam). The district court granted Trahan’s motion, and U.S.
Bank appealed pursuant to 28 U.S.C. § 1453(c). We affirm.1
There is no dispute that the parties are diverse; the only question before us is
the amount in controversy. U.S. Bank argued in connection with its opposition to
Trahan’s motion to remand that the class’s claims are worth $6,491,652.38, of
which $2,412,331.35 are alleged punitive damages. Similarly, U.S. Bank argued
that Trahan’s individual claims are worth $76,691.48, of which $23,174.49 are
alleged punitive damages. Simple subtraction reveals that the amount in
controversy requirement is not satisfied under either § 1332(a) or § 1332(d)
without sufficient punitive damages.
A district court need not consider punitive damages in determining the
amount in controversy when such damages are unavailable as a matter of state law.
Davenport v. Mut. Benefit Health & Accident Ass’n, 325 F.2d 785, 787 (9th Cir.

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3
1963). Here, Trahan’s wage and hour claims are inherently tied to employment
contracts Trahan and the class had with U.S. Bank. Such claims cannot support
punitive damages under California law. Brewer v. Premier Golf Props., 86 Cal.
Rptr. 3d 225, 235 (Ct. App. 2008), review denied Mar. 18, 2009; Cal. Civ. Code §
3294(a). Trahan stipulated at oral argument that in light of these authorities,
despite what is currently alleged in his complaint, he cannot, and will not attempt
to, collect punitive damages or pursue a conversion claim in this case. Once the
claim for punitive damages and conversion were withdrawn by Trahan, for himself
and the class, U.S. Bank conceded its inability to show that the jurisdictional
threshold is satisfied. The district court’s order remanding this case to Alameda
County Superior Court is AFFIRMED.

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