Summary
allowing defendant to file third-party affidavit stating that the cost of complying with the requested order for injunctive relief would exceed $75,000
Summary of this case from Stone v. Travelers Prop. Cas. Ins. Co.Opinion
No. 09-16017.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed May 18, 2010.
David G. Bray, Esquire, Andrew Lawrence Pringle, Mariscal Weeks McIntyre Friedlander. PA, Phoenix, AZ, for Plaintiff-Appellant.
Joseph G. Adams, Martha E. Gibbs, Sid Leach, Snell Wilmer L.L.P., Jennifer A. Baker, Esquire, Jones Skelton Hochuli, PLC, Phoenix, AZ, for Defendant-Appellee.
Appeal from the United States District Court for the District of Arizona, Mary H. Murguia, District Judge, Presiding. D.C. No. 2:07-cv-01727-MHM.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
General Dentistry for Kids, LLC ("General Dentistry") sued Kool Smiles, P.C. ("Kool Smiles") for state law trademark infringement and unfair competition in Arizona superior court. Kool Smiles removed to federal court based on diversity of citizenship. The district court denied General Dentistry's motion to remand, and eventually granted Kool Smiles' motion for summary judgment.
General Dentistry appeals the denial of the motion to remand, claiming the district court lacked jurisdiction because the notice of removal failed to establish the jurisdictional amount requirement. The notice of removal summarily stated without support that the amount in controversy exceeded $75,000 at trial. In opposition to General Dentistry's motion for remand, Kool Smiles later provided a third-party affidavit stating that the cost of complying with General Dentistry's requested injunctive relief would exceed $135,000. The district court denied the motion to remand, holding that the affidavit amended the notice of removal and was sufficient to set forth the amount in controversy in excess of the $75,000 statutory limit.
General Dentistry contends the district court erred in denying the motion to remand and relies on Gaus v. Miles, 980 F.2d 564 (9th Cir. 1992). In Gaus, the defendant provided no evidence that the amount in controversy exceeded the jurisdictional amount. Id. at 567. There, we stated that a defendant must set forth "in the removal petition itself, underlying facts supporting its assertion that the amount in controversy exceeds" the jurisdictional amount. Id. at 566. Gaus has been distinguished by our subsequent precedent, which holds that a district court may consider later-provided evidence as amending a defendant's notice of removal. Cohn v. Petsmart, Inc., 281 F.3d 837, 839-40 n. 1 (9th Cir. 2002); Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997). The district court followed Cohn and Singer, which are consistent with the governing statute, 28 U.S.C. § 1653, and Supreme Court precedent. Willingham v. Morgan, 395 U.S. 402, 407, n. 3, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969).