                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 26 2013

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



                            FOR THE NINTH CIRCUIT


TUONG HOANG and ALEXANDER                        No. 13-56183
NGUYEN, individually and on behalf of
those similary situated,                         D.C. No. 2:12-cv-10946-DSF-JEM

              Plaintiffs - Appellees,
                                                 MEMORANDUM*
  v.

SUPERVALU INC; et al.,

              Defendants - Appellants.


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

                       Argued and Submitted August 13, 2013
                             San Francisco, California

Before: GRABER, BEA, and HURWITZ, Circuit Judges.

       Plaintiffs, who are hourly supermarket pharmacists, filed this putative class

action against their former employers in California state court, alleging various

violations of California wage and hour law. Defendants removed the case to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
federal court pursuant to the Class Action Fairness Act (“CAFA”) 28 U.S.C. §

1332(d)(2). The district court sua sponte remanded the case to state court on the

ground that Defendants had failed to show “to a legal certainty” that this case

meets the $5,000,000 minimum amount in controversy required for federal

jurisdiction under CAFA. Defendants appeal the remand order. We have

jurisdiction under 28 U.S.C. § 1453(c), and we reverse and remand.

      When it is “unclear or ambiguous from the face of a state-court complaint

whether the requisite amount in controversy is pled[,] . . . we apply a

preponderance of the evidence standard” to determine whether the removing party

has met the amount in controversy requirement. Guglielmino v. McKee Foods

Corp., 506 F.3d 696, 699 (9th Cir. 2007). However, when a state-court complaint

clearly and unambiguously alleges that the amount in controversy is less than the

jurisdictional threshold, the “party seeking removal must prove with legal certainty

that CAFA’s jurisdictional amount is met.” Lowdermilk v. U.S. Bank Nat’l Ass’n,

479 F.3d 994, 1000 (9th Cir. 2007).

      The jurisdiction section of the complaint in this case states that the “total

amount recoverable for the entire case does not exceed $5,000,000.00.” However,

the prayer for relief does not repeat this limitation, and instead states that Plaintiffs

seek various forms of relief, including declaratory judgments, damages for unpaid


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overtime compensation and penalties “subject to proof,” damages for business

expenses that were not reimbursed, penalty wages, attorneys’ fees and costs,

injunctive relief, disgorgement of funds by the Defendants, liquidated damages,

and interest on their damages. The complaint’s limitation of the total amount

“recoverable” to $5,000,000 cannot reasonably be interpreted to encompass the

total value of all forms of relief requested in the complaint. For example, among

various other remedies, the complaint asks for injunctive relief pursuant to

California Business and Professions Code section 17203. The value of the

requested injunction against Defendants would not be “recovered” by Plaintiffs yet

the value of such an injunction is part of the amount that has been put in

controversy by Plaintiffs’ complaint. See Hunt v. Wash. State Apple Adver.

Comm’n, 432 U.S. 333, 347 (1977) (“In actions seeking declaratory or injunctive

relief, it is well established that the amount in controversy is measured by the value

of the object of the litigation.”). The complaint is therefore ambiguous on its face

as to whether the total amount in controversy is less than $5,000,000, so the district

court erred in applying Lowdermilk’s legal certainty test.1 We reverse and remand




      1
        We need not and do not decide whether Lowdermilk survives Standard
Fire Insurance Co. v. Knowles, 133 S. Ct. 1345 (2013), because Lowdermilk does
not apply here.

                                          3
for the district court to determine whether Defendants have met the preponderance

of the evidence standard for removal.

      REVERSED and REMANDED.




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