                                                                              FILED
                           NOT FOR PUBLICATION                                APR 20 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WILLIAM J. MYERS, JR., aka William J.            No. 13-17410
Myers,
                                                 D.C. No. 2:13-cv-01907-NVW
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

FREESCALE SEMICONDUCTOR
INCORPORATED, a Delaware
corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                     Neil V. Wake, District Judge, Presiding

                            Submitted March 23, 2015**

Before: LEAVY, GRABER, and OWENS, Circuit Judges.

       William Myers appeals the district court’s judgment following the dismissal

on res judicata grounds of his action seeking unpaid wages from Freescale


        *
             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).
Semiconductor, Inc. We review de novo a district court’s dismissal based on res

judicata. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Myers’s first contention is that this case was improperly removed to federal

court. Because he did not object to removal, the only issue on appeal is “whether

diversity jurisdiction would have existed if the case had been filed in the posture it

had at the time” the motion to dismiss was granted. Dep’t of Fair Emp’t & Hous.

v. Lucent Techs., Inc., 642 F.3d 728, 736 (9th Cir. 2011). Myers’s own admissions

establish that the amount in controversy was more than $75,000 at the time the

motion to dismiss was granted, see Singer v. State Farm Mut. Auto. Ins. Co., 116

F.3d 373, 377 (9th Cir. 1997) (“In the absence of any conflicting evidence, the

plaintiff’s admission establishe[s] . . . the amount in controversy . . . .”), and there

is no dispute that the parties in this case are diverse. Accordingly, the district court

had diversity jurisdiction under 28 U.S.C. § 1332, and removal was proper.

      Myers’s next contention is that the district court improperly dismissed his

complaint on res judicata grounds. “Three elements constitute a successful res

judicata defense. Res judicata is applicable whenever there is (1) an identity of

claims, (2) a final judgment on the merits, and (3) privity between parties.” United

States v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1150 (9th Cir.


                                            2
2011) (internal quotation marks omitted). Myers appears to concede that the

second and third elements are satisfied, but contends that there is not an identity of

claims between this case and his previous action against Freescale. We have held

that “[i]dentity of claims exists when two suits arise from ‘the same transactional

nucleus of facts.’ Newly articulated claims based on the same nucleus of facts may

still be subject to a res judicata finding if the claims could have been brought in the

earlier action.” Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 322

F.3d 1064, 1078 (9th Cir. 2003) (citation omitted) (some internal quotation marks

omitted). This case and Myers’s previous lawsuit both arise from “the same

transactional nucleus of facts,” specifically, Myers’s termination. See Mpoyo v.

Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005) (holding that two

suits “relate[d] to the same set of facts” because they both concerned “the events

leading to [the plaintiff’s] termination”). Myers also could have brought the

current claims in his previous action against Freescale. As a result, there is an

identity of claims, and the district court did not err in dismissing Myers’s

complaint on res judicata grounds.

      Myers’s final contention is that he did not receive proper notice of

Freescale’s motion to dismiss or the district court’s orders following the removal

of this case to federal court. Nevertheless, Myers offers no evidence demonstrating


                                           3
that the motion to dismiss was not properly served, Moody v. Bucknum (In re

Bucknum), 951 F.2d 204, 207 (9th Cir. 1991) (per curiam) (“A certificate of

mailing . . . create[s] a presumption of receipt of notice . . . .”), or that any of the

district court’s orders were not validly filed on CM/ECF. This argument thus fails.

       AFFIRMED.1




       1
           Myers’s “Motion for Summary Judgment” is denied.

                                             4
