                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           MAR 03 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

SHEIK ZAHID ALI; SAFIYA ZAYNA                    No. 09-15401
ALI,
                                                 D.C. No. 3:07-cv-04263-JSW
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

TRIMAC TRANSPORTATION
SERVICES (WESTERN), INC.; ROHM
& HAAS COMPANY,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                     Argued and Submitted February 15, 2011
                            San Francisco, California

Before: SCHROEDER and THOMAS, Circuit Judges, and BENNETT, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Mark W. Bennett, District Judge for the United States
District Court for the Northern District of Iowa, sitting by designation.
      The plaintiffs, Sheik Zahid Ali and Safiya Zayna Ali, appeal the district

court’s dismissal of their claim against defendant, Trimac Transportation Services,

Inc. The court dismissed for lack of subject matter jurisdiction under Federal Rule

of Civil Procedures 12(b)(1).

      The district court had subject matter jurisdiction, however, because the claim

falls within the district court’s diversity jurisdiction. 28 U.S.C. § 1332(a)(1); see

also Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1315–16 (9th Cir. 1982).

      Under California’s workers’ compensation law, an injured employee can

pursue a claim in state court if the employer has not secured adequate workers’

compensation insurance. Cal. Lab. Code § 3706; see also Le Parc Cmty. Ass’n v.

Workers’ Comp. Appeals Bd., 110 Cal. App. 4th 1161, 1172 (2003). The district

court found that the employer had provided the requisite workers’ compensation

insurance, relying principally upon the pleadings and the declarations attached to

the motion to dismiss. The parties on appeal dispute the nature of the defendant’s

insurance coverage and also dispute the employment status of Ali. There has been

no discovery and no opportunity to develop adequately the record in support of a

summary judgment motion. On the basis of the sparse record before this court, we

are not in a position to resolve those issues.




                                            2
     We therefore VACATE the district court’s judgment of dismissal and

REMAND for further proceedings.




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