FILED
NOT FOR PUBLICATION MAY 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERICK LINA, individually, and on behalf No. 12-55598
of other members of the general public
similarly situated, D.C. No. 2:11-cv-07206-GHK-
CW
Plaintiff - Appellee,
v. MEMORANDUM*
BARNES AND NOBLE INC., a Delaware
corporation and BARNES AND NOBLE
BOOKSELLERS INC., a Delaware
corporation,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted May 10, 2012
Pasadena, California
Before: D.W. NELSON, FISHER, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Barnes & Noble, Inc. (“B&N”) appeals the district court’s order granting
Erick Lina’s motion to remand his class action to state court. We have jurisdiction
pursuant to 28 U.S.C. § 1453(c)(1), and we affirm.
The district court did not abuse its discretion in concluding that the
Declaration of Marvin Adams lacked foundation. See Fed. R. Civ. P. 56(c)(4).
The record is unclear whether Adams supervised all B&N stores in California as
opposed to merely a subset, and what responsibilities his position entailed. Absent
this information, the district court was justified in refusing to infer that Adams
knew the circumstances of all the Store Managers across California.
Even assuming Adams supervised all California stores, his Declaration does
not explain how he learned the details concerning the Store Managers’ average
annual salaries, typical schedules, and break periods. It was not unreasonable for
the district court to expect that Adams took steps to ascertain these facts, and thus,
to require Adams to lay that foundation.
Further, the district court’s refusal to give B&N an opportunity to cure these
defects was not an abuse of discretion. See Abrego Abrego v. Dow Chem. Co., 443
F.3d 676, 691 (9th Cir. 2006) (per curiam); 28 U.S.C. § 1446(b)(3).
For these reasons, the district court’s order is
1 AFFIRMED.
2