                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-2018


STEPHEN MISEL; TIFFANY MISEL,

                Plaintiffs - Appellants,

          v.

MAZDA   MOTOR   OF   AMERICA,    INCORPORATED,   a    California
corporation,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cv-00457-F)


Submitted:   February 18, 2011             Decided:   March 28, 2011


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christopher W. Livingston, White Oak, North Carolina, for
Appellants. H. Toby Schisler, Amy L. Keegan, DINSMORE & SHOHL,
LLP, Cincinnati, Ohio, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Stephen and Tiffany Misel appeal the district court’s

order   and    judgment      granting        Mazda     Motor    of   America,   Inc.’s

(“Mazda”)      Federal    Rule       of   Civil        Procedure     12(b)(1)   (“Rule

12(b)(1)”)      motion    to     dismiss         for     lack   of   subject    matter

jurisdiction.      Finding no reversible error, we affirm.

              The Misels filed suit against Mazda, alleging that it

violated the North Carolina New Motor Vehicles Warranties Act,

N.C. Gen. Stat. § 20-15A (2010), and the Magnuson-Moss Warranty

Act, 15 U.S.C. §§ 2301-2312 (2006) (“MMWA”), when it failed to

repair or replace the new car that the Misels purchased.                           The

Misels sought to recover the purchase price of the car less an

amount for reasonable use before the first attempted repair,

tripled pursuant to N.C. Gen. Stat. §§ 20-351.2, 20-351.3, for a

total   of     $66,405.15.           Mazda       moved    to    dismiss   the   Misels

complaint for lack of jurisdiction.                    The district court granted

Mazda’s motion, holding that the Misels failed to satisfy the

MMWA’s $50,0000 amount in controversy requirement because the

aggregate of their MMWA claims was less than $50,000.

              We review de novo a district court’s decision granting

a   motion    to   dismiss     for   lack     of     subject    matter    jurisdiction

under Rule 12(b)(1).           See Etape v. Chertoff, 497 F.3d 379, 382

(4th Cir. 2007).         The district court should grant such a motion

“only if the material jurisdictional facts are not in dispute

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and the moving party is entitled to prevail as a matter of law.”

Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999)

(internal quotation marks and citation omitted).                          The burden of

proving    subject      matter    jurisdiction          in    response       to   a    Rule

12(b)(1)   motion       to    dismiss      is   on    the    plaintiff,       the     party

asserting jurisdiction.          Williams v. United States, 50 F.3d 299,

304 (4th Cir. 1995).

            A    plaintiff      may    file     a    MMWA    suit   for    damages      for

certain    breach      of    warranty      obligations        in    either     state     or

federal court.          15 U.S.C. § 2310(d)(1) (2006).                    Such a suit,

however,    is    not       appropriately       brought      in     a   United      States

district court

     (A)    if the amount in controversy of any individual
            claim is less than the sum or value of $25;

     (B)    if the amount in controversy is less than the sum
            or value of $50,000 (exclusive of interests and
            costs) computed on the basis of all claims to be
            determined in this suit; or

     (C)    if the action is brought as a class action, and
            the number of named plaintiffs is less than one
            hundred.

15 U.S.C. § 2310(d)(3).

            The Misels concede that their claims do not meet the

$50,000 requirement unless they receive treble damages pursuant

to North Carolina law.                The aggregate amount in controversy,

however,   is    not    computed      on   the      basis    of    pendent    state     law

claims.    See, e.g., Ansari v. Bella Auto. Group, Inc., 145 F.3d


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1270, 1272 (11th Cir. 1998);          Boelens v. Redman Homes, Inc., 748

F.2d     1058,      1071       (5th        Cir.   1984);       Collins       v.

Computertraining.com, Inc., 376 F. Supp. 2d 599, 602 (E.D. Va.

2005); Barnes v. West, Inc., 249 F. Supp. 2d 737, 739 n.4 (E.D.

Va. 2003); Critney v. Nat’l City Ford, Inc., 255 F. Supp. 2d

1146, 1147-49 (S.D. Cal. 2003); Rose v. A & L Motor Sales, 699

F. Supp. 75, 77 (W.D. Pa. 1988).             Therefore, the Misels do not

meet the MMWA’s aggregate amount in controversy requirement and

the district court could not exercise jurisdiction over their

suit.

           Accordingly, we affirm the district court’s judgment.

We   dispense    with   oral   argument     because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                     AFFIRMED




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