                                                                              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                           NOT FOR PUBLICATION                                MAY 18 2012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.


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