                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 31 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GEORGE MUTASCU,                                 No. 16-56603

                Plaintiff-Appellant,            D.C. No. 2:15-cv-07066-DDP-
                                                AFM
 v.

EMIL BOTEZATU,                                  MEMORANDUM*

                Defendant-Appellee,

and

DOES, 1-10,

                Defendant.

                   Appeal from the United States District Court
                      for the Central District of California
                   Dean D. Pregerson, District Judge, Presiding

                           Submitted October 23, 2017**

Before:      McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges

      George Mutascu appeals pro se from the district court’s judgment dismissing



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for lack of subject matter jurisdiction his diversity action seeking damages for

destruction of his property and intentional infliction of emotional distress. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Naffe v. Frey, 789

F.3d 1030, 1035 (9th Cir. 2015). We reverse and remand.

      The district court concluded that Mutascu “failed to submit any evidence to

satisfy his burden of showing that a punitive damages award could adequately

increase the amount in controversy to meet the jurisdictional minimum.”

However, the district court applied an incorrect standard to evaluate the amount in

controversy. See 28 U.S.C. § 1332(a); Naffe, 789 F.3d at 1039-40 (setting forth

elements of diversity jurisdiction and explaining that the “legal certainty” test

requires a “district court [to] accept the amount in controversy claimed by the

plaintiff unless it can declare to a legal certainty that the case is worth less”); see

also Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d

1102, 1106 (9th Cir. 2010) (under the legal certainty test, “a federal court has

subject matter jurisdiction unless upon the face of the complaint, it is obvious that

the suit cannot involve the necessary amount” (citation and internal quotation

marks omitted)). Because on the face of Mutascu’s complaint, it cannot be

determined to a legal certainty that the amount in controversy is $75,000 or less,

we reverse the judgment and remand for further proceedings.

      We do not consider matters not properly raised before the district court. See


                                            2                                     16-56603
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      We deny Botezatu’s requests for sanctions, a permanent restraining order,

and for punitive damages, as set forth in his answering brief.

      The parties shall bear their own costs on appeal.

      REVERSED and REMANDED.




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