                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 26 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PATRICK PIERCE,                                  No. 09-16037

              Plaintiff - Appellant,             D.C. No. 5:08-cv-01554-JF

  v.
                                                 MEMORANDUM *
WELLS FARGO BANK, N.A.,

              Defendant - Appellee.



                    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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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


                                           2
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.




                                          3
