                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 12 2014

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



                            FOR THE NINTH CIRCUIT


GEORGE A. AVILA, on behalf of himself            No. 12-55997
and all others similarly situated,
                                                 D.C. No. 8:11-cv-01949-CJC-
              Plaintiff - Appellee,              RNB

  v.
                                                 MEMORANDUM*
CON-WAY FREIGHT INC., a Delaware
Corporation,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                          Submitted November 17, 2014**
                              Pasadena, California

Before: W. FLETCHER and BYBEE, Circuit Judges, and SINGLETON, Senior
District Judge.***



        *
             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).
        ***
             The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
      The facts and procedural posture of this case are known to the parties, and

we do not repeat them here. Appellant Con-way Freight Inc. poses only one

question to us: whether the district court had the authority to remand the case to

state court. We hold that once the district court concluded that it lacked subject

matter jurisdiction, it had clear authority to remand this case.

      We have jurisdiction to determine whether the district court acted within its

authority. N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69

F.3d 1034, 1037–38 (9th Cir. 1995) (“Although [28 U.S.C.] § 1447(d) on its face

appears to withdraw all appellate jurisdiction to review remand orders . . . . we

have jurisdiction to decide whether a district court has the power to do what it did

[in issuing a remand order].” (second alteration in original) (citation and internal

quotation marks omitted)).

      Con-way Freight argues that the district court did not have authority to

remand the case because Appellee George A. Avila’s motion to remand was

untimely under 28 U.S.C. § 1447(c), which states that a “motion to remand the

case on the basis of any defect other than lack of subject matter jurisdiction must

be made within 30 days after the filing of the notice of removal.” Avila’s motion

to remand, made more than thirty days after the filing of the notice of removal,

contended that the $5 million amount in controversy necessary for jurisdiction


                                           2
under the Class Action Fairness Act, 28 U.S.C. §1332(d)(2) had not been met.

Con-way Freight argues that the motion was therefore untimely under § 1447(c),

because “a dispute regarding whether the $5 million amount in controversy has

been met is not an issue of subject matter jurisdiction.” We disagree. A dispute

regarding the amount in controversy is inherently an issue of subject matter

jurisdiction. A federal court cannot assert subject matter jurisdiction in a diversity

case unless that case presents the requisite amount in controversy. See Matheson v.

Progressive Specialty Ins. Co., 319 F.3d 1089, 1090–91 (9th Cir. 2003) (per

curiam).

      Con-way Freight does not dispute that the district court lacked subject matter

jurisdiction. The judgment is AFFIRMED.




                                           3
