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NOT FOR PUBLICATION MAY 18 2010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
GENERAL DENTISTRY FOR KIDS, No. 09-16017
LLC, an Arizona limited liability
company, D.C. No. 2:07-cv-01727-MHM
Plaintiff - Appellant,
MEMORANDUM *
v.
KOOL SMILES, P.C.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted May 14, 2010 **
San Francisco, California
Before: HUG and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
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
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“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 (1969).
AFFIRMED.
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