                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 18 2011

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




                            FOR THE NINTH CIRCUIT



REBECCA HOUPT, on behalf of herself              No. 11-55869
and all others similarly situated,
                                                 D.C. No. 2:10-cv-07726-R-JEM
              Plaintiff - Appellee,

  v.                                             MEMORANDUM *

VICTORIA FIRE & CASUALTY
COMPANY, an Ohio corporation;
NATIONWIDE MUTUAL LIFE
INSURANCE COMPANY, an Ohio
corporation; TITAN AUTO INSURANCE
OF NEW MEXICO, INC., a New Mexico
corporation,

              Defendants - Appellants.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                        Argued and Submitted July 14, 2011
                               Pasadena, California

Before: RYMER, TALLMAN, and IKUTA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Because Houpt’s parenthetical request for relief above CAFA’s $5 million

jurisdictional limit rendered her complaint ambiguous as to the total recovery

sought, the district court erred in concluding that the defendant insurers needed to

prove the amount in controversy to a legal certainty rather than by a preponderance

of the evidence. See Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th

Cir. 2007). Here the insurers have satisfied CAFA’s jurisdictional requirements:

because Houpt alleged that the insurers improperly reduced the plaintiffs’ sales

commissions, the full amount of those commissions, $12,375,968, rather than the

sum of all “improper” deductions, is properly included in the amount in

controversy. See 28 U.S.C. § 1332(d)(2); Lewis v. Verizon Commc’ns, Inc., 627

F.3d 395, 397–98 (9th Cir. 2010).

      Finally, by alleging only that the plaintiffs are “California-based” sales

agents, rather than California citizens, Houpt failed to plead or prove a necessary

element of both the discretionary abstention and local controversy exceptions to

CAFA jurisdiction. See 28 U.S.C. § 1332(d)(3), (4)(A)(i)(I); Snell v. Cleveland,

Inc., 316 F.3d 822, 824 (9th Cir. 2002) (per curiam). We therefore decline to

affirm the decision of the district court on these alternative grounds.




                                           2
      The district court’s order remanding this action to the state court is

REVERSED, and the case is REMANDED to the district court for further

proceedings consistent with this disposition.

      REVERSED and REMANDED.




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