                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 17 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ROBERTO MARTINEZ,                                No. 09-56573

             Plaintiff - Appellee,               D.C. No. 2:09-cv-02084-SVW-
                                                 JWJ
  v.

CRAB ADDISON, INC., Erroneously                  MEMORANDUM *
Sued As Joe’s Crab Shack, Inc.,

             Defendant - Appellant,

 and

DOES 1 THROUGH 50, INCLUSIVE,

             Defendant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                     Argued and Submitted November 4, 2009
                              Pasadena, California

Before: SCHROEDER, BERZON and IKUTA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court’s determination that Crab Addison failed to establish by a

preponderance of the evidence that “the matter in controversy exceeds the sum or

value of $5,000,000, exclusive of interest and costs,” 28 U.S.C. § 1332(d)(2), was

not clearly erroneous. See Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 683

(9th Cir. 2006). Specifically, the district court did not clearly err in determining

that the declaration of Kevin Cottingim failed to disclose critical information and

assumptions, including the number of weeks or pay-periods that were used in its

calculations, and that this failure made the declaration insufficient to establish that

the amount in controversy exceeds the jurisdictional minimum. The district court

also violated no constitutional rights in considering Martinez’s notice of

supplemental authority; courts have long recognized the propriety of considering

such notices of relevant case law. See, e.g., Fed. R. App. P. 28(j).

      AFFIRMED.
