                                                                            FILED
                              NOT FOR PUBLICATION                            MAY 18 2010

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




                              FOR THE NINTH CIRCUIT



JERRY TRAHAN,                                     No. 10-15665

              Plaintiff - Appellee,               D.C. No. 3:09-cv-03111-JSW

  v.
                                                  MEMORANDUM *
U.S. BANK NATIONAL
ASSOCIATION,

              Defendant - Appellant.



                    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.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      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).1 We affirm.

      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.


      1
          We granted U.S. Bank permission to appeal on March 29, 2010.

                                          2
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.




                                          3
