George Mutascu v. Emil Botezatu

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE MUTASCU,
Plaintiff-Appellant,
v.
EMIL BOTEZATU,
Defendant-Appellee,
and
DOES, 1-10,
Defendant.
No. 16-56603
D.C. No. 2:15-cv-07066-DDP-
AFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges
George Mutascu appeals pro se from the district court’s judgment dismissing
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
OCT 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for lack of subject matter jurisdiction his diversity action seeking damages for
destruction of his property and intentional infliction of emotional distress. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Naffe v. Frey, 789
F.3d 1030, 1035 (9th Cir. 2015). We reverse and remand.
The district court concluded that Mutascu “failed to submit any evidence to
satisfy his burden of showing that a punitive damages award could adequately
increase the amount in controversy to meet the jurisdictional minimum.”
However, the district court applied an incorrect standard to evaluate the amount in
controversy. See 28 U.S.C. § 1332(a); Naffe, 789 F.3d at 1039-40 (setting forth
elements of diversity jurisdiction and explaining that the “legal certainty” test
requires a “district court [to] accept the amount in controversy claimed by the
plaintiff unless it can declare to a legal certainty that the case is worth less”); see
also Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d
1102, 1106 (9th Cir. 2010) (under the legal certainty test, “a federal court has
subject matter jurisdiction unless upon the face of the complaint, it is obvious that
the suit cannot involve the necessary amount” (citation and internal quotation
marks omitted)). Because on the face of Mutascu’s complaint, it cannot be
determined to a legal certainty that the amount in controversy is $75,000 or less,
we reverse the judgment and remand for further proceedings.
We do not consider matters not properly raised before the district court. See

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Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
We deny Botezatu’s requests for sanctions, a permanent restraining order,
and for punitive damages, as set forth in his answering brief.
The parties shall bear their own costs on appeal.
REVERSED and REMANDED.

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