                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 15 2015

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

MICHAEL NATHAN, individually and on              No. 13-55920
behalf of all others similarly situated,
                                                 D.C. No. 2:12-cv-08677-PSG-
              Plaintiff - Appellant,             GW-RZ

 v.
                                                 MEMORANDUM*
FRY’S ELECTRONICS INC.; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                   Philip S. Gutierrez, District Judge, Presiding

                             Submitted June 2, 2015**
                               Pasadena, California

Before: FERNANDEZ, FISHER, and BEA, Circuit Judges.

      Michael Nathan appeals the district court’s dismissal of his complaint for

failure to state a claim upon which relief can be granted, pursuant to a motion to

        *
             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).

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dismiss on those grounds filed by defendants Fry’s Electronics, Inc., Vladimir

Pleskov, Syed Fahad, and Nuance Communications, Inc (collectively, “Nuance”).1

We affirm.

      The district court correctly determined that it had jurisdiction over this

putative class action pursuant to the Class Action Fairness Act (“CAFA”). The

parties agree that minimal diversity exists, as Nathan is a California citizen and

Nuance Communications is a Delaware corporation whose principal place of

business is Massachusetts. Nathan contests, however, whether the amount in

controversy exceeds $5 million. Nathan’s state court complaint included claims on

behalf of a putative “Plaintiff Class” of all persons who purchased Nuance

Communications’s Dragon speech recognition software in California since August

1, 2008. When Nuance Communications filed its notice of removal pursuant to

CAFA, it attached an affidavit from a Senior Vice President which stated that

Nuance Communications’s sales in California during the relevant time period

exceeded $5 million. No contrary evidence was proffered. Thus, Nuance

established by a preponderance of the evidence that the total amount in controversy




      1
         Nathan presents no legal argument contesting the entry of judgment
against him on his claims against Judge Gutierrez and the United States District
Court for the Central District of California. That issue is thereby waived.

                                          2
exceeds the jurisdictional minimum, and federal jurisdiction exists. Guglielmino v.

McKee Foods Corp., 506 F.3d 696, 701 (9th Cir. 2007).

      We turn to Nathan’s appeal of the district court’s denial of Nathan’s motion

for entry of default. Nuance argues that this court lacks jurisdiction to review the

district court’s ruling because that ruling was not a final order. Nuance is wrong.

The denial of Nathan’s motion for default constitutes an interlocutory order. Upon

entry of final judgment, “the interlocutory order merges in the final judgment and

may be challenged in an appeal from that judgment.” United States v. Real

Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1141 (9th

Cir. 2008) (quoting Baldwin v. Redwood City, 540 F.2d 1360, 1364 (9th Cir.

1976)).

      On the merits, the district court did not abuse its discretion when it denied

Nathan’s motion for default. The district court docket confirms that the clerk did

not act on the request for entry of default until after Nuance’s motion to dismiss

Nathan’s complaint had been filed. Nuance’s motion to dismiss Nathan’s

complaint meant the defendants had not failed to file and serve a responsive

pleading before the request for default was acted upon. Thus, the district court did

not abuse its discretion by denying Nathan’s motion for entry of default.




                                          3
      Nathan did not challenge before the district court, nor does he challenge

here, the substance of the district court’s ruling granting Nuance’s motion to

dismiss his complaint,. Accordingly, we affirm the district court’s dismissal of

Nathan’s complaint. See G-K Properties v. Redevelopment Agency of City of San

Jose, 577 F.2d 645, 648–49 (9th Cir. 1978). The district court’s entry of judgment

for the defendants is

      AFFIRMED.




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