Patrick Pierce v. Wells Fargo Bank, N.a.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK PIERCE,
Plaintiff - Appellant,
v.
WELLS FARGO BANK, N.A.,
Defendant - Appellee.
No. 09-16037
D.C. No. 5:08-cv-01554-JF
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted May 10, 2010
San Francisco, California
Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.
Patrick Pierce filed suit in the Superior Court of California, County of Santa
Clara, asserting state common law claims against Wells Fargo Bank for its failure
to pay him severance benefits in violation of its alleged oral promises to him
during its acquisition of Pierce’s former employer, Greater Bay Bancorp. Wells
FILED
MAY 26 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Fargo removed the action to district court. The district court denied Pierce’s
motion to remand and granted Wells Fargo’s motion to dismiss. We vacate and
remand to the district court with instructions to remand to state court.
Removal from state to federal court was proper only if there is federal
subject matter jurisdiction based on complete preemption of Pierce’s claims under
ERISA. See Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941,
944 (9th Cir. 2009). We review questions of subject matter jurisdiction de novo,
and the burden of establishing federal subject matter jurisdiction falls on the party
invoking removal. Id.
The law in this circuit has been clarified since the district court’s order
denying remand. Under Marin General, to determine if there is federal removal
jurisdiction we apply the two-prong test for complete preemption from Aetna
Health Inc. v. Davila, 542 U.S. 200 (2004). Pierce’s original complaint fails the
second prong of the Davila test, and therefore is not completely preempted,
because it alleges an “‘independent legal duty that is implicated by the defendant’s
actions.’” Marin Gen., 581 F.3d at 949 (quoting Davila, 542 U.S. at 210).
Pierce’s original complaint can reasonably be read to allege that Wells Fargo
formed a contract with Pierce under which it agreed to pay Pierce a specified
amount if Pierce continued to work through completion of the acquisition. Even if

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the words of the oral contract specified the amount owed as “benefits under the
CIC Plan,” a reasonable interpretation of those words is that the contract meant
“benefits equivalent to those under the CIC Plan.” If that is the contract’s
meaning, it imposes an independent obligation that is “in no way based on an
obligation under an ERISA plan.” Marin Gen., 581 F.3d at 950. Indeed, like the
hospital in Marin General, 581 F.3d at 947, “[Pierce] is claiming this amount
precisely because it is not owed under [his] plan.”
Because Pierce’s original complaint can reasonably be read to allege that
Wells Fargo violated an independent legal obligation, which references the Plan
only to define the amount owed, there is no complete preemption under ERISA.
Removal was therefore improper. See id.
VACATED AND REMANDED.

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