                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 18 2010

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




                            FOR THE NINTH CIRCUIT



GENERAL DENTISTRY FOR KIDS,                      No. 09-16017
LLC, an Arizona limited liability
company,                                         D.C. No. 2:07-cv-01727-MHM

              Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

KOOL SMILES, P.C.,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Mary H. Murguia, District Judge, Presiding

                             Submitted May 14, 2010 **
                              San Francisco, California

Before: HUG and McKEOWN, Circuit Judges, and FAWSETT, 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 Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
       General Dentistry for Kids, LLC (“General Dentistry”) sued Kool Smiles,

P.C. (“Kool Smiles”) for state law trademark infringement and unfair competition

in Arizona superior court. Kool Smiles removed to federal court based on

diversity of citizenship. The district court denied General Dentistry’s motion to

remand, and eventually granted Kool Smiles’ motion for summary judgment.

       General Dentistry appeals the denial of the motion to remand, claiming the

district court lacked jurisdiction because the notice of removal failed to establish

the jurisdictional amount requirement. The notice of removal summarily stated

without support that the amount in controversy exceeded $75,000 at trial. In

opposition to General Dentistry’s motion for remand, Kool Smiles later provided a

third-party affidavit stating that the cost of complying with General Dentistry’s

requested injunctive relief would exceed $135,000. The district court denied the

motion to remand, holding that the affidavit amended the notice of removal and

was sufficient to set forth the amount in controversy in excess of the $75,000

statutory limit.

       General Dentistry contends the district court erred in denying the motion to

remand and relies on Gaus v. Miles, 980 F.2d 564 (9th Cir. 1992). In Gaus, the

defendant provided no evidence that the amount in controversy exceeded the

jurisdictional amount. Id. at 567. There, we stated that a defendant must set forth


                                           2
“in the removal petition itself, underlying facts supporting its assertion that the

amount in controversy exceeds” the jurisdictional amount. Id. at 566. Gaus has

been distinguished by our subsequent precedent, which holds that a district court

may consider later-provided evidence as amending a defendant’s notice of

removal. Cohn v. Petsmart, Inc., 281 F.3d 837, 839-40 & n.1 (9th Cir. 2002);

Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997). The

district court followed Cohn and Singer, which are consistent with the governing

statute, 28 U.S.C. § 1653, and Supreme Court precedent. Willingham v. Morgan,

395 U.S. 402, 407, n.3 (1969).

AFFIRMED.




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