                                                                             FILED
                            NOT FOR PUBLICATION                                DEC 29 2014

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ADAM JONES, individually as an                    No. 14-56778
aggrieved employee and on behalf of other
aggrieved employees,                              D.C. No. 2:13-cv-05206-FMO-
                                                  AJW
              Plaintiff - Appellee,

  v.                                              MEMORANDUM*

BATH & BODY WORKS, LLC,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                   Fernando M. Olguin, District Judge, Presiding

                      Argued and Submitted December 8, 2014*
                               Pasadena, California

Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.

       This is an appeal, filed pursuant to 28 U.S.C. § 1453(c), of the district

court’s order remanding the underlying putative class action to state court.

Reviewing the district court’s remand order de novo, Abrego Abrego v. Dow Chem.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Co., 443 F.3d 676, 679 (9th Cir. 2006) (per curiam), we reverse the district court’s

remand order and conclude that the district court has jurisdiction pursuant to the

Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d).

      The sole dispute on appeal was whether defendant has met its burden of

proof under CAFA to establish that the amount in controversy exceeds $5 million,

but this dispute no longer existed when we heard oral arguments of the parties. At

oral argument, plaintiff conceded that the evidence submitted by defendant, if

credited, is sufficient to show by a preponderance of the evidence that the amount

in controversy exceeds $5 million. Plaintiff also conceded in its answering brief

that “the district court may not have fully considered the sample data submitted by

[defendant]. If the estimated amounts from the sample data were extrapolated to

cover all eligible putative class members, then the figures provided for the waiting

time penalties alone would likely eclipse the $5 million threshold.”

      Parties cannot consent to subject matter jurisdiction, and a lack of subject

matter jurisdiction is a non-consentable defect. See Owen Equip. & Erection Co. v.

Kroger, 437 U.S. 365, 377 n.21 (1978). Here, however, we agree with the parties

that defendant has submitted sufficient evidence to show by a preponderance of the

evidence that the amount in controversy exceeds $5 million. We conclude that the

district court has jurisdiction over the underlying putative class action under


                                           2
CAFA.

    REVERSED and REMANDED.




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