FILED
NOT FOR PUBLICATION JUL 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
REBECCA HOUPT, on behalf of herself No. 11-55869
and all others similarly situated,
D.C. No. 2:10-cv-07726-R-JEM
Plaintiff - Appellee,
v. MEMORANDUM *
VICTORIA FIRE & CASUALTY
COMPANY, an Ohio corporation;
NATIONWIDE MUTUAL LIFE
INSURANCE COMPANY, an Ohio
corporation; TITAN AUTO INSURANCE
OF NEW MEXICO, INC., a New Mexico
corporation,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted July 14, 2011
Pasadena, California
Before: RYMER, TALLMAN, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Because Houpt’s parenthetical request for relief above CAFA’s $5 million
jurisdictional limit rendered her complaint ambiguous as to the total recovery
sought, the district court erred in concluding that the defendant insurers needed to
prove the amount in controversy to a legal certainty rather than by a preponderance
of the evidence. See Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th
Cir. 2007). Here the insurers have satisfied CAFA’s jurisdictional requirements:
because Houpt alleged that the insurers improperly reduced the plaintiffs’ sales
commissions, the full amount of those commissions, $12,375,968, rather than the
sum of all “improper” deductions, is properly included in the amount in
controversy. See 28 U.S.C. § 1332(d)(2); Lewis v. Verizon Commc’ns, Inc., 627
F.3d 395, 397–98 (9th Cir. 2010).
Finally, by alleging only that the plaintiffs are “California-based” sales
agents, rather than California citizens, Houpt failed to plead or prove a necessary
element of both the discretionary abstention and local controversy exceptions to
CAFA jurisdiction. See 28 U.S.C. § 1332(d)(3), (4)(A)(i)(I); Snell v. Cleveland,
Inc., 316 F.3d 822, 824 (9th Cir. 2002) (per curiam). We therefore decline to
affirm the decision of the district court on these alternative grounds.
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The district court’s order remanding this action to the state court is
REVERSED, and the case is REMANDED to the district court for further
proceedings consistent with this disposition.
REVERSED and REMANDED.
3