F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

N A D I A N A F F E , an individual,

Plaintiff-Appellant
,

v

.

J O H N P A T R I C K F R E Y , an individual; C O U N T Y O F L O S A

N G E L E S , a municipal entity
,

Defendants-Appellees

. N o. 13-55666

D.C. No. 2:12-cv-08443- GW -MRW

OPI NI ON

A ppeal from the United States District Court for the Central District of California Georg e H. W u, District J u d g e, Presiding

Arg ued and Submitted May 6, 2015—Pasadena, California

F iled J une 15, 2015

B e fore: A. W allace Tashima, Richard C. Tallman, and J acqueline H. Ng

uy en, Circuit J u d g es.

Opinion by

J u dg e TallmanN A F F E V

. F R E Y 2

SUMMARY *

Civil Rights

The panel affirmed in part and reversed in part the district court’s dismissal of an a ct i on broug ht by conservative political a ctivist Nadia N affe ag a i n s t L os Ang eles County Deputy Distr ict A ttorney Patrick F rey , who published derog atory and intimidating statements about Naffe on his personal I nternet blog and on Twitter.

Affirming the dismissal of Naffe’s claims broug ht under 42 U.S.C. § 1983
, t he panel held that Naffe’s f actual alleg ations di d not sufficiently support her claim that F rey acted u nder color of state law. The panel determined that: (1) the alleg ations did not g ive rise to a reasonable inference that F rey harmed N affe while on d uty ; (2) F rey ’s comments about Naffe were not sufficiently related to his work a s a county prosecutor; a

nd ( 3) the facts d id not support N a f f e ’ s claim that F rey “purported or pretended to act under color of [ state] law” when he blog g e d about her. F inally , the mere fact that Naffe knew F rey was a prosecutor did n ot mean he abused his
g overnment position to violate her rig hts.

Reversing the district c ourt’s dismissal of Naffe’s state law claims, the panel held that the district court erred when it required Naffe to establish by a pre p onderance of the evidence the amo u n t in controversy for showing federal diversity jurisdiction. The panel held that it could not say to

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.N A F F E V

. F R E Y 3

a leg al certainty that Naffe’s claims were worth less than $75,000.01.

COUNSEL

Eug ene G. I redale (arg

ued) a nd Grace J un, I redale and Yoo, APC, San Dieg o, California, for Plaintiff-Appellant.

Ron a l d D. Coleman (arg ued), Archer & Greiner PC, H a c kensack, New J ersey ; Kenneth P. W hite, B rown, Whi t e & Newhouse L L P, L os Ang eles, California, for D efendantAppellee J ohn Patrick F rey

.

Paul B

. B each (arg

ued) a nd J ohn W

. Nam, L awrence B e ach Allen & Choi, PC, Glendale, Calif o r n ia, for D efendantAppellee County

of L os Ang eles.

Eug e n e V o lokh, UCL A School of L aw, L os Ang eles, California, for Amicus Curiae Dig ital Media L aw Project.

OP INION

TAL L MAN, Circuit J u dg e:

Plaintiff Nadia Naffe appeals the d istrict court’s d ismissal of her 42 U .S.C. § 1983 claim and six related state law causes of action. Her appeal requires us to r esolve two issues. F irst,

we must d ecide whether the factual alleg ations in N affe’s

co m plaint are sufficient to support her claim that Defendant J ohn Patrick F rey

—a L os Ang eles County Deputy District Attorney —acted under color of state law for the purposes o f § 1983 when he published derog a tory statements about NaffeN A F F E V

. F R E Y 4

on his personal I nte r net blog and o n Twitter. Second, we must determine if the district cou r t e r re d when it r equired Naffe to establish b y a p reponderance of the evidence the
amount in controversy for showin g federal diversity jurisdiction.

F irst, we hold that Naffe has n ot supported adequately her claim that F rey acted under color of state law for the purposes of § 1 9 8 3

. Rather, the factual alleg ations—taken a s true—compel the conclusion that F rey did not act under color of state law w hen h e blog g e d and T w eeted about Naffe because he did so for purely personal reasons, and t he

c o mmunications were unrelated to his work as a c ounty prosecutor. Second, w e c o n clude that the district court applied a n incorrect s t a

ndard to evaluate the amount in controversy and, a s a r esult, improperly d i s missed N affe’s
state law claims. W e therefore a ffirm in part, reverse in part, and remand.

I

“B ecause this is an appeal from the dismissal of an action pursuant to F ederal Rule of Civil Procedure 12(b)(6 )
, we accept as true the facts alleg ed in the c omplaint.” Lee v. City of Los Angeles
, 250 F

. 3d 668, 677 (9th Cir. 2001) (citation omitted) (internal quotation marks and bracke t s omitted). Naffe alleg es the following facts.

Naffe and F re y are conservative p olitical activists. B y day
, F rey is a c ri m inal p rosecutor in L os Ang eles County assig ned to the g ang unit. By nig ht, he maintains a blog
, Patterico’s Pontifications (patterico.com), and a T w i tter handle, @ P a tterico. On both, h e writes a nd c omments about—a m o ng o ther thing s—conservative politics, liberalN A F F E V

. F R E Y 5

m e d i a bias, and criminal law. Althoug h he frequent l y references h i s p o s i tion as a Deputy District Attorney in his posts and Tweets, his b log c ontains the following messa ge : “The statements made on this web site reflect the pers o nal opinions of the author. They are not made in any official capacity
, and do not r ep r esent the o pinions of the author’s employ e r.” F rey ’s Twitter pag e display s a similar disclaimer.

L ike F r e y , Naffe is a well-k n o w n p olitical a ctivist. She is also a former friend and c o l l e a g ue of J ames O’Keefe, a conservativ e p o l i t i c o w h o c laims to “specializ [ e] in producing underco v er videos that sty le themselves as ‘ex posés’ o f liberal p o liti cal misdeeds.” Naffe admits to assisting O’Keefe

w i th at least one of his “sting o perations,” a 2010 plot t o wiretap Representat i v e Max ine W aters’s cong ressional district office, which is located in L os Ang e les. Around that time, O’Keefe checked his email on Naffe’s smart p hone. He did not log out of the email application, and as a r esult, Naffe

m a intained access to O’Keefe’s account and the e mails therein. Naffe and O’Keefe h ad a f alli n g out in mid-2011 when Naffe accused O’Keefe o f sex uall y a s saulting her in a New J ersey

barn.

Thereafter, F rey (who was also a frie n d of O’Keefe)
wrote eig ht unfavorable articles about Naffe that he p osted to his b l o g. He also Tweeted several doz en threatening a nd harassing statements about Naff e. I n these blog posts a

nd Tweets, F rey ac c u s e d Naffe of ly ing about the barn incident and filing f

rivolous lawsuits ag ainst O’Keefe. He also called Naffe a liar, il l iterate, callous, self-absorbed, despicable, a

smear artist, dishonest, and a bsurd. F inally
, in one Tweet he insinuated t h a t N a ffe broke the law when she accessed O’Keefe’s emails: “@NadiaNaffe My F irst task is learning what crimi n a l statutes, if any , y ou have admitted violating

. ”N A F F E V

. F R E Y 6

F rey also posted t o h i s blog o ver 200 pag es o f a deposition transcript from an unrelated lawsuit bet w e e n Naffe and her former employ er. The transcript contained substantial private information, including Naffe’s social security number and her mother’s maiden name. After F rey posted t h i s information, Naffe received emails from Ex perian—a credit reporting ag ency —notify ing her that unauthoriz ed individuals made chang es to her credi t report and were fraudulently

using her social security

number.

I n l a t e 2012, Naffe filed this a ction ag ainst F rey , the County o f L os Ang e l e s , and several others (collectively
, “defendants”) in federal district court. She invoked both the district court’s federal question and diversity jurisdiction. Naffe’s f irst amended complaint states seven total claims for relief—one federal claim a n d s ix state law claims. The federal claim arises under 42 U.S.C. § 19 8 3

. According to Naffe, “[ i] n a

busing his position a s a D e p uty District Attorney

. . . , F REY acted under color of s t a te law in his continuous harassment of PL AI NTI F F v ia his website, blog and Twitter account. F REY’S harassment of PL AI NTI F F violated her F irst Amendment constitutional rig ht to petition the g o v ernment f

or redress o f g rievances.” Naffe also raises the following Californ i a state law claims: public disclosure in v a s ion o f privacy
, f alse lig ht invasion of privacy
, defamation, intentional infliction of emotion a l distress,
neg lig ence, and neg lig ent supervision (ag ainst the County o f L os Ang eles).

Naffe alleg es that she suffered more than $75,000 w orth of damag e s as a result of F rey ’s conduct. Spec i f ically
, she suffered g eneral and s p e c ial d amag es including
, “harm to P L A I NTI F F ’ S reputation, emotional distress, e x pense r e lated to medical treatment concerning health issues, including butN A F F E V

. F R E Y 7

not limited to bleeding ulcers suffered as a result of the stress and trauma caused by defendants, ex pense incurred in defense and r epair of her credit rating
, lost earning s, and other pecuniary loss, all of which are in ex cess of $75,000.”

I n early 2013, defendants filed several motions to dismiss Naffe’s state a

nd federal claims. 1 After a hearing
, the district
court g ranted defendants’ dispositive motions, eff e ctively terminating Naffe ’ s c a s e in federal court. The court determined that F rey did n ot a ct “under color of state law” when he blog g ed a n d T w e e ted about Naffe, and so it dismissed without leave to amend Naffe’s 42 U .S.C. § 1983 claim

. Naffe v. Frey
, Case 2:12-cv-08443-GW -MRW
, slip
op. at 2 (C.D. Cal. Apr. 19, 2013) (order confirming tentative ruling ).

The district court dismissed Naffe’s s i x state law c laims for lack of subject ma tter jurisdiction. Id. ; see also F ed. R. Civ. P. 1 2(b)(1). I n a preliminary ru l i n g on defendants’ motions to dismiss, the district court ex p r e s s e d doubt as to whether Naffe had sufficiently established th e a m ount in controversy required for federal d i v ersity jurisdiction. See Naffe v. Frey
, Case 2:12-cv-08443-GW

- M RW
, slip op. at 5–10 (C.D. Cal. Apr. 18, 2013) (tentative ruling ). I n response to these doubts, Naffe elaborated on her alleg ed injuries in a

sworn declaration. See Plaintiff Nadia Naffe’s Declaration in Support of H er Opposition to Defendant J ohn Patrick F r ey ’s Motion to D i s miss Pursuant to Rule 12(b)(1), Case

1 In h e r o p p o s i t i o n to Frey ’ s Ru le 1 2 (b )(6 ) m o tio n , Naf f e m o v ed to

v o lu n t arily

d ism iss h er § 1 9 8 3 claim ag ain st th e Co u n ty

o f L o s A n g eles. B ecau se t h e Co u n ty can n o t b e v i cario u sly liab le f o r Frey ’ s actio n s u n der § 1 9 8 3
, see Mo n el l v

. D e p ’ t of So c. Servs. o

f N.Y.C.
, 4 36 U.S. 65 8
, 6 9 1 (1 9 7 8), Naf

f e’ s § 1 9 8 3 claim

is ag ain st Frey

alo n e.N A F F E V

. F R E Y 8

2:12-cv-08443-GW -MRW ( C

. D. Cal. F eb. 2 1, 2013) (Dkt. # 56-2) (hereinafter “Naffe Decl.”). Notwithstanding th is additional offer of proof, the district cour t found Naffe did

n o t sufficiently support her alleg ation that the amoun t i n controversy ex c e eds $ 75,000. Naffe v. Frey
, Case 2:12-cv-08443-GW -MRW
, slip op. a t 2 (C.D. Cal. A pr. 19, 2013) (order confirming tentative ruling ). As a result, the
court determined it did not have jurisdiction over N affe’s
state law claims under 28 U.S.C. § 1332(a)(1), and it declined
to ex ercise supplemental jurisdiction over those claims under 28 U.S.C. § 1367(c)(3).

P l a i ntiff filed a timely n otice of appeal. W e h a v e jurisdiction under 28 U.S.C. § 1291.

II

W e review de novo a district court’s dismissal f or lack o f subject matter jurisdiction, F ed. R. Civ. P. 12 ( b ) (1), a nd a district c o u r t ’ s dismissal for failure to state a claim, F ed. R. Civ. P. 12(b)(6). See N. Cnty. Cmty. Alliance, Inc. v. Salazar
, 573 F .3d 738, 741 (9th Cir. 2009)

. “ To survive a motion to dismiss, a complaint must c o n tain sufficient factual matter, accepted a s true, to state a claim to relief that is plausible on its face.” Ashcr o

f t v

. Iqbal
, 556 U.S. 662, 678 (2009) (citation omitted) (internal quotation marks omitted).

III

Naffe f irst a r gues the district court erred when it concluded that F rey did not act under color of state law for
purposes of § 1983 liability

. According to Naffe, F rey threatened to p rosecute h e r for accessing O ’Keefe’s e mails and for her role in the plot to wiretap Representative W aters’sN A F F E V

. F R E Y 9

L os Ang eles office. H is g oal was to inti m i d a t e her into keeping silent about O’Keefe’s illeg al activities, i n c l u d i ng the barn incident and his various “sting operations.” I n this way , arg ues Naffe, F rey

used his state authority to violate Naffe’s constitutional rig hts to speak and petition the g overnment for

a redress of g rievances. See U. S

. C o n st. amend. I

. W e disag ree. F or the following r easons, we hold that N a f f e ’s alleg ati o n s do not “allow [ u s] to draw the reasonable inference” th at Frey acted under color o f state law when he

a l l e g edly denig rated Naffe on the I nternet. S ee Iqb a l
, 556 U.S. at 678. W e therefore a ffirm the distr ict court’s dismissal of Naffe’s § 1983 claim.

A

Section 1983 is a “vehicle by w h i c h plaintiffs can bring federal constitutional and statutory challeng es to actions b y state and local officials.” Anderson v

. W arner , 451 F .3d 1063, 1067 (9th Cir. 2006). I t provides that:

[ e] very person who, u n d e r color of any statute, o rdinance, reg u la t ion, custom, o r usag e , of any State o r Territory or the District of Columbia, subject s , or causes to be

s ubjected, any citiz en of the United States o r other person within the jurisdiction thereof to the deprivation o f any rig hts, privileg e s, o r im munities secured by the Constitution a nd laws, shall be liable to the party injured in an action at law, suit in equity
, o r other proper proceeding

for redress.

42 U.S.C. § 1983. “To state a c laim under § 1983, a p laintiff [ 1] mus t a lleg e the violation of a rig ht secured by theN A F F E V

. F R E Y 10

Constitution and laws of the United States, and [ 2] must show that the alleg ed deprivation was committed by a person acting under color of state law.” W es t v

. A tkins
, 487 U.S. 42, 48 (1988). Dismissal o f a § 1 9 83 claim following a Rule 12(b)(6) motion is proper if the complaint is devoid of f actual alleg ations that g ive r i s e t o a plausible inference of either element. See, e.g. , DeGrassi v

. City of Glendora
, 2 07 F .3d 636, 647 (9th Cir. 2000); Price v. Hawaii
, 9 39 F .2d 702, 707–09 (9th Cir. 1991); see also Iqbal
, 556 U.S. at 678. W e focus our analy sis on the state action requirement.

An individual acts under color of state law when h e or she

ex e r cises power “possessed by virtue of state l a w a nd made possible only because the wrong doer is clothed w ith the authori t y o f state law.” United States v. Classic
, 313 U.S. 299, 326 ( 1941); see also D ang V a n g v

. Vang X

iong X. Toyed
, 944 F .2d 476, 479 ( 9th Cir. 1991) (“ ‘ [ I ] t is f irmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the
state

. ’” (quoting W

est , 487 U.S. at 49

– 5 0 ) )

. This test is
g enerally satisfied when a state employ ee, like a deputy district attorney , w rong s someone “while acting in h is official capacity or while ex e rcisi ng h is responsibilities pursuant to

s t a t e law.” W

est , 487 U.S. at 5 0. B u t § “1983 does n o t federaliz e a ll torts or other d e p rivations of rig h ts committed by a person w h o is a law e n f orcement officer or other
g overnment ag ent.” M

yers v. Bowman
, 713 F .3d 1319, 1329 (11th Cir. 2013) (citation omitted) (internal quotation marks omitted); see also Van Ort v

. E s t a te of Stanewich
, 9 2 F .3d 831, 838 (9th Ci r. 1 9 96). Particularly when the state employ e e is off duty
, whether he or she “is acting under color of state law turns on the nature and circumstances o f t he [ employ ee’s]

. . . conduct and the relationship of that conduct
to the performance of his o fficial d uties.” An d

e rson ,N A F F E V

. F R E Y 11

451 F .3d at 1068 (citation omitted) (internal quotation marks omitted).

Althoug h w e h a v e never decided if and when a state

e m ploy ee who moonlig hts as a blog g er acts under color o f
state law, we have considered more g enerall y when the actions of off-duty state employ ees g ive rise to § 1983 liability

. I n Stanewich
, f

or ex a mple, we held that defendant Stanewich—a San Dieg o sheriff’s deputy —did not act under color o f state law when he attempted to r ob plaintiffs, the Van Orts. S ee 92 F .3d at 838. Althoug h h e orig inall y identified his victims during a police search of thei r h ome, at the time of th e attempted robbery “Stanewich was attired not in uniform but in blue jeans and wor e a m a sk, sung lasses a nd
cap in a n a t t e m p t to conceal his identity

. . . . H e did not display a badg e to plaintif f s a n d denied being a police officer.” I d. at 833–34, 838 ( citation omitted). W e concluded that Stanewich did not act u nder color of state law during the attempted robbery because “[ a] t no point did Stanewich purport to be acting a s a policeman,” and even if the victims
recog niz ed him as an officer, that recog nition “ does not alone transform private acts into a c ts under color of state law.” Id. at 839.

W e came to the opposite conclusion in McDade v. W est , 223 F. 3 d 1135 (9th Cir. 2000), and Anderson
, 451 F .3d at 1065, based on disting u ishing f ac ts. I n McDade
, defendant “W est, as an employ ee of the [ Ventura County ] District Attorney ’s office, illeg ally used i t s Medical Elig ibility Data computer sy stem”—to which she h ad access only b e cause o f her official position—to find her husband’s ex -wife, who was living in a battered women’s shelter. 223 F .3d at 1137. W e held that W est acted under color of state law becaus e she “abused her responsibilities and purported or p r etended to beN A F F E V

. F R E Y 12

a s t a t e officer during the hours in which she a ccessed th e computer.” Id. at 1141. I n Anderson
, Defendant W arner—a jail commander in Mendocino County —assaulted Anderson after Anderson rear-end e d h i m

. 451 F .3d at 1065. W arner

w a s off duty
, driving in his car with his wife a nd a frie n d

. Nevertheless, W arner prevented b y standers from intervening in his attack by claiming that he w as “a cop,” a claim that his
passeng ers echoed. See id. at 1065–66. We held that W arner acted under color of state law b e c au s e he invoked (and therefore abused) his law enforcement status while assaulting Anderson, a

nd there w as a close nex us b etween his work at th e jail and his claim that the a ssault was “police business.” Id. at 1066.

Stanewich
, McDade
, a nd Anderson e stab lish our framework for d e termining wh ether Naffe pleaded facts sufficient to support her alleg ation that F r ey acted under color of state law. Under those c ases, a state employ ee w h o i s on duty
, o r otherwise ex e r cises his official r esponsibilities in an off-duty encounter, ty

p ically a cts under c o l o r of state law. See W est , 487 U.S. at 49–50; McDade
, 2 23 F .3d at 1139–41. That is true even if the employ e e ’s o f fe nsive actions were illeg al or unauthoriz ed. S ee M o n r oe v

. Pape
, 365 U.S. 167, 172 (1961), overruled o n other grounds by Monell v. Dep’t of Soc. S ervs. o f N.Y .C.
, 436 U .S. 658 (1978). A state employ ee who is off duty nevertheless acts under color of state law when (1) the employ ee “purport[ s] to or p r eten d [ s ] to act under c olor of law,” Stanewich
, 9 2 F.3d at 8 38; McDade
, 223 F .3d at 1141, ( 2 ) h i s “pretense of a cting in the performance of his d

u ties

. . . had the purpose and effect o f influencing the behavior of o t h ers,” Anderson
, 451 F .3d at 1069, a nd (3) the harm inflicted on plaintiff “‘related in some meaning ful way either to the officer’s g overnmental status o r to the performance of his d uties
, ’ ” i d. (quoting Martinez v

.N A F F E V

. F R E Y 13

Colon
, 5 4 F .3d 980, 987 (1st Cir. 1995)). On the other h and,

a g overnment employ ee does n ot a ct under color of state law when he pursues private g oals via private actions. See id. ; see also Townsend v

. Moya
, 291 F .3d 8 59, 861–62 (5th Cir. 2002).

B

N affe’s § 1983 claim fails under this framewor k f o r several reasons. F irst, Naffe’s factual alleg ations do not g ive rise to the reasonable inference that F rey harmed Naffe while

on duty or w hen “ex erc i s ing his responsibilities pursuant to state law.” W

est , 487 U.S. at 50. F rey is a county p rosecutor whose official re s ponsibilities do not include publicly commenting about conservative politics and current events. Cf. McDade
, 2 23 F

. 3d at 114 0 ( finding state action when “W e st was authoriz ed by the County
, and ex pected as part o f her official duties, to a ccess the MEDS d atabase”). W hile county prosecutors are sometimes authoriz e d to speak on behalf of their employ ers, Naffe pleads no facts to support her alleg ation that the County authoriz ed o r encourag ed F r ey ’s social and political c o mmentary

. I n deed, F rey d i s cussed Naffe n o t o n the L os Ang eles County District Attorney ’s verified 2 Twitter pag e, see LA District Attorney
, Twitter.com, https://twitter.com/L ADAOffice ( last visited May 26, 2015), but rather on his personal Twitter pag e a nd blog
, which contain disclaimers that “[ a ] ll statements are made in [ F rey ’s]

2 T w itter “ v erif

ies” certai n a c co u n ts to “ estab lish au t h en ticity of id en tities of k ey in d iv i d u als an d b ran d s o n T w itter.” FAQs a b o u t verified

a cco u n ts , T w itter.co m , h ttp s://su p p o rt.tw itter.co m

/articles/1 1 9 1 3 5

- f

aq s

ab o u t- v erif

ied

- acco u n ts (last v i sit e d M a y 2 6
, 2 0 1 5 ). In o th er w o rd s,

v erif icatio n is T w itter’ s m eth o d o f

en s u rin g at least so m e of its u sers are

w h o th ey s ay th ey are. T w itter id en tif ies v erif ied u sers b y d isp lay in g a b lu e ch eck

sy m b o l n ex t to th e u s er’ s T w itter h an d le.N A F F E V

. F R E Y 14

private capacity and not on b e h a l f of [ his] employ er.” F inally
, each Tweet or post cited by Naffe in her complaint is time-stamped very late at nig ht or early in the morning
, a fact which undermines her claim that F rey blog g ed and Tweeted during normal business h o u rs using County resources. Cf. McDade
, 223 F .3d at 1140 (finding p e r suasive the fac t t h at W e st “accessed the database during n ormal working hours”).

Second, F rey ’s comments about Naffe are not sufficiently related to h is work a s a county prosecutor to constitute state action. Naffe alleg es F rey threatened to prosecute her as a way of c o e r cing h e r to delete O’Keefe’s emails from her
smart phone and remain quiet about O’Keefe’s plan t o

w iretap Representative W a ters’s d istrict office. B ut Naf f e does no t s t ate any facts to support the alleg ation that F rey investig ated her (or even could have investig ated her). Iqbal
, 556 U.S. a t 678. She does not, for ex ample, alleg e F rey used his authority to contact law enforce m e nt, open an investig ation file, or interview witnes s e s about N affe’s i n v o l vement with O’Keefe. A nd a sing le T w eet in which F rey rhetorically asked “what criminal statut es, if any , [ Naffe] admitted violating ,” d oes not create a nex us b etween F rey ’s private harang

ues and his jo b

. See Brentwood Acad.

v. Tenn. Secondary S

ch. Athletic Ass’n
, 531 U

. S

. 2 8 8, 295 (2001) (“[ S] tate action may be found if, thoug h only if, there is such a close nex us between th e S t a te and the challeng ed action that seeming ly private behavior may be treated as that of the State itself.” (citation omitted) (internal quotation marks omitted)).

Third, the facts Naffe pleads do not support her claim that F rey “purported or pretend e d to act under color o f [ state] law” when he blog g ed about her. See Stanewich , 92 F .3d at 838. To the contrary , F rey f requently reminded his read ersN A F F E V

. F R E Y 15

and followers that, althoug h h e worked f or L os Ang eles County
, he blog g ed and Tweeted o nly in his personal capacity

. B y contrast , i n A nderson
, where we found state

ac t i o n, defendant W arner specifically associated his actions with his law enforcement position, claiming to by standers he

was “a cop,” a

nd the assault was “police business.” 451 F .3d
at 1066–67. Here, unlike in Anderson
, F rey did not claim to act in his official capacity

. F or this re a s o n, F rey did not abuse the power g iven to him b y t he state to influence o r harm Naffe.

And althoug h F rey drew on his e x periences as a Deputy D i s trict Attorney to inform h is blog posts and Tweets, that alone does not transform his private speech into public action. See Stanewich
, 92 F .3d at 833–34, 839–40 (declining to find
state action even thoug h St a n ew i ch drew on knowledg e he
g ained a s a p olice officer to identify his victim s ). I ndeed, if

we were to consider every comment b y a state e mploy e e to be
state action, the constitutional rig hts of public offi c ers to speak their minds as private citiz ens would be substantially chilled to the detriment of the “mark et p lace of ideas.” See City o f San Diego, Cal. v. Roe
, 5 4 3 U.S. 77, 82 (2004) (per curiam) (“[ P] ublic employ ees are often the m e m b ers of the community w ho are likely to h ave informed opinions as to the operations of their public employ ers, operations which are o f substantial concern to the p u blic. W e r e they not able to speak

on these matters, the community would be depriv ed o f informed opinions on important public issues.”); cf. Garcetti

v. Ceballos
, 547 U.S. 410, 421 (2006) ( “ [ W ] hen public employ e es [ including deputy district attorney s] make
statements p ursuant to their official d uties
, the employ ees a

re not speaking as citiz ens f o r F irst Amendment purposes, a nd the Constitution does not insulate their communications from employ e r discipline.” (emphasis added)).N A F F E V

. F R E Y 16

F inally
, the mere fact that Naffe knew F r ey was a prosecutor d oes n ot mean he abused his g overnment position
to violate her rig hts. See Stanewich
, 92 F .3d at 839 (“Merely because Donald recog ni z e d Stanewich, however, would not

m ake the attack under color of law.”). I ndeed, the focus o f the inquiry is not on w h at Naffe k n ew about F rey b ut rather

on how F rey used h is posit i o n a s a state employ ee to harm Naffe, and Naffe has pleaded insufficient facts to support her

numerous alleg ations that F rey used his p osition as a Deputy District Attorney to harm her. See Iqbal
, 556 U

. S

. a t 678 (requiring a co m plaint to contain alleg ed factual matter sufficient to support a plausible claim to relief).

I n sum, Naff

e seeks to support her alleg ation of state action by claiming rep e a t edly that F rey acted “[ i] n his capacity as a Deputy District Attorney ” wh e n he criticiz ed h e r online. B ut she does not alleg e facts that support t h i s claim. And, as the district court correctly held, a bare claim of state action does n ot withstand a Ru le 12(b)(6) motion. See id. at 678; Price
, 939 F .2d at 708 ( “ [ A ] d e f endant is entitled to more than the bald leg al conclusion that there was action under color of state law.”). 3

IV

Naffe nex t arg ues the d istrict court erred w h e n it d i s m i s s ed her six state law claims for lack of subject matt e r jurisdicti o n

. Even absent a § 1983 claim, Naffe asserts federal courts have jurisdiction over her state law c laims pursuant to 28 U.S.C. § 1332 ( a)(1) because the p arties a re

3 B ecau se w e af

f irm on th e “ state actio n ” p ro n g , w e do n o t c o n s i d e r

w h eth er Naf

f e su f f icien tly alleg ed “ th e v io latio n o f a rig h t secu red b y th e Co n stitu tio n an d law s o f

th e Un ited States.” W

est , 4 8 7 U.S. at 4 8

.N A F F E V

. F R E Y 17

from different states and the amount i n c ontroversy ex ceeds $ 7 5,000. A fter briefing and a hearing
, the district cou r t concluded that Naffe did not establish by a preponderance o f the evidence that she satisfied § 1332’s amount in

c o n t r o v e r s y r e q u i r e m e n t

. N a f f e v

. F r e y , C a s e 2:12-cv-08443-GW -MRW
, slip op. a t 2 (C.D. Cal. A pr. 19, 2013) (order confirming tentative ruling ). As a result, the
court dismissed her case f or lack o f s u bject matter ju r i s d i c tion. W e conclude that the district court applied an in c o rrect leg a l standard to evaluate the amount in controversy , and so we reverse and remand.

A

To establish federal jurisdiction u n d er § 1332(a)(1), the proponent must a lleg e (1) the parties are completely diverse, and ( 2) the amount in controversy ex ceeds $ 7 5
, 0 0 0. See 28 U.S.C. § 1332(a)(1); McNutt v. Gen. Motors Ac c e ptance Corp. o f Ind.
, 298 U.S. 178, 189 (1936 )

. Only the second requirement is at issue here. 4

W h en a plaintiff files suit in federal court, w e u se the “leg al certainty” test to determine whethe r t h e complaint
meets § 1332(a)’s amount in controversy req u i r ement. See Pachinger v. M

GM Grand Hotel-Las Vegas, Inc.
, 802 F .2d 362, 363–64 (9th Cir. 1 9 8 6 ) (adopting the “leg al certainty ” test); 14AA The L ate Charles Alan Wrig ht, et a l

. , Federal

4 I t i s u n co n tested th at Naf f e is do m iciled in Massach u setts, F rey i s d o m iciled i n Calif

o rn ia, an d th e Co u n ty o f L o s A n g eles is a citizen of Calif o rn ia f o r p u rp o ses o f d iv ersity j ur i sd i ctio n , see Mo o r v. Ala med a Cn ty. , 4 1 1 U .S. 6 9 3
, 7 1 7

– 1 8, 7 21

– 22 (1 9 7 3 ). T h e p arties are th u s

“ co m p letely d iv erse.” S e e S tra w b rid ge v. Cu rtiss
, 7 U.S. 2 6 7
, 2 6 7

– 6 8 (1 8 0 6).N A F F E V

. F R E Y 18

Practice & Procedure, J urisdiction § 3 702 ( 4 t h ed. 2 015) (noting that t h is test “has become the universal test in the

c o ntex t of a ctions that orig inate in the federal courts ” ). Under this t e s t , “ t h e sum claimed by the plaintiff controls if the claim is apparently made in g ood faith. I t must appear to

a leg al certainty that the claim is r eally for less t h a n t h e jurisdictional amount to justify dismissal.” St. Paul Mercury Indem. Co. v. Red Cab Co.
, 303 U.S. 283, 288–89 (1938); see also Geographic Expeditions, Inc. v. Estate of Lhotka e x rel. Lhotka
, 599 F. 3d 1102, 1106 (9th Cir. 2010). As w e have
recog niz ed:

the l e g a l certainty test makes it very difficult
t o secure a dismissal of a case on the g ro u n d that it does not appear to satisfy the jurisdictional amount r e q

u i r e ment. Only three sit u ations clearly meet the leg al c ertainty standard: 1) when the terms of a contract limit the plaintiff’s p ossible r ecovery ; 2) when a specif i c rule of law or measure of damag e s limi ts the amount of d amag es recoverable; and 3) when indepen d ent facts show that the
amount of d amag es was claimed merely to obtain federal court jurisdiction. Pachinger
, 802 F .2d at 364 ( quoting 14A W r ig ht, Miller, & Cooper, Federal Practice & Procedure, Jurisdiction § 3702, at 48–50 (2d ed. 1985)).

Citing McNutt
, 298 U.S. at 1 89, the district court r equired Naffe to establish the amount in controversy b y a preponderance of th e evidence, a nd it dismissed her case when she failed to meet this b urden. Naffe v. Frey
, C a se 2:12-cv-08443-GW -MRW
, slip op. at 6 & n.11 ( C.D. Cal. Apr. 18, 2013). That was error. I t is true that some casesN A F F E V

. F R E Y 19

warrant a more thoroug h inquiry into the facts underpinning jurisdiction than the leg al certainty test permits. F or ex ample,

w h e r e a party seeks to remove a case from state to fede ra l
court u nder 28 U.S.C. § 1441, the proponent of removal bears the burden of establishing federal jurisdiction by a preponderance of the evidence. G e o graphic Expeditions
, 599 F. 3 d a t 1106–07; Gaus v. Miles
, 980 F .2d 564, 566–67 (9th C i r

. 1992) (apply ing McNutt ’s preponderance test to evaluate the jurisdictional amount in a removal c a s e ); c f. Harris v. Rand
, 682 F .3d 846, 851 (9th Cir. 2012) (noting that

a district court may r equire a party to establish c ertain ju r i s d i ctional facts, like the location o f a business’s “nerve center,” b y a preponderance of the evidence); Meridian Sec. Ins. v. Sado w s k i
, 441 F .3d 536, 540–41 (7th Cir. 2 006) (apply ing the leg al certainty test to answer the ultimate leg al question whether the amount in c ont r o v e r sy requirement is satisfied, but asking the proponent of jurisdiction to establish by a preponderance of the evidence certain fa cts underly ing the claimed amount). B ut that more sea r ching inquiry is inapplicab l e where, as here, the plaintiff files suit orig inally i n f ederal court, the case raises traditional state tort clai m s , and the c omplaint affirmatively alle ges that the amount in controversy ex ceeds the jur i s d i ctional threshold. I n such a case, the leg al ce r t a i nty test applies, and the district court must a ccept the amount in controversy claimed by the plaintiff unless it can declare to a leg al certainty that the case is worth less. See St. Paul Mercury , 303 U.S. at 288–89.

B

Here, it d oes not appear to a leg al certainty that N affe’s claim is r eally for less than the jurisdictional amount. Naffe alleg es she incurred more than $75,000 in damag es as a result of F rey ’s conduct. That sum i n cludes the money NaffeN A F F E V

. F R E Y 20

alleg edly spent repairing her credit h i story after F rey p osted her social security number and other private information online. I t also includes damag es resulting from the medical problems, em o tional distress, lost job opportunities, and harm
to her reputation she allegedly suffered b ecause o f the disparag ing comments F r e y published about her. Naffe reaffirmed these alleg ations in a sworn declaration. I f Naffe
proves these f

acts at trial, a jury could reasonably award her damag es ex ceeding $75,000. S e e , e

. g. , Hope v. Cal. Y

outh Auth.
, 134 C a l

. A p p

. 4th 577, 5 95 (2005) (affirming a $1 million verdict for e motional d istr e s s damag es). See
gene r a l ly 6A Robert F

. Koets, et a l., Cal. Jurisprudence 3d Assault & Other W

illful Torts § 1 4 4 (2015) (d i s c u s s i ng the availability of damag es for privacy torts). I n other words, no “rule of law o r limitation of damag es would make it v irtually impossible for [ Naffe]

. . . to meet the amount-in-controversy requirement.” Pachinger
, 802 F .2d at 364. And the record is devoid of “independent facts [ to] sho w t h a t the amount o f damag es was claimed merely to obtain federal court jurisdiction.” See id. Thus, Naffe’s sta t e law tort c laims satisfy the amount in c o n troversy requirement, and the district
court erred when it d ismissed the c a s e for lack of subject matter jurisdiction.

V

The district court properly dismissed Naffe’s § 1 9 8 3 cl a i m b ecause her unsupported leg al conclusions do not “allow [ us] to draw the reasonable inference” that F rey acted under color of state law when h e blog g ed and Tweeted about Naffe. See Iqbal
, 556 U.S. at 678. B ut the district court erred when it dismissed Naffe’s state law claims for lack of subject
matter jurisdiction because we cannot say to a leg al c ertaintyN A F F E V

. F R E Y 21

that Naffe’s claims are worth less than $ 7 5
, 0 0 0 .01. The district court’s judg ment is therefore

AFFI RMED in part, REVERSED in part, a nd REMANDED.

Each party

shall bear its own costs.