FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NADIA NAFFE, an individual,

Plaintiff-Appellant,

v.

JOHN PATRICK FREY, an individual;

COUNTY OF LOS ANGELES, a

municipal entity,

Defendants-Appellees.

No. 13-55666

D.C. No.

2:12-cv-08443-

GW-MRW

OPINION

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted

May 6, 2015—Pasadena, California

Filed June 15, 2015

Before: A. Wallace Tashima, Richard C. Tallman,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Tallman
2 NAFFE V. FREY

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district

court’s dismissal of an action brought by conservative

political activist Nadia Naffe against Los Angeles County

Deputy District Attorney Patrick Frey, who published

derogatory and intimidating statements about Naffe on his

personal Internet blog and on Twitter.

Affirming the dismissal of Naffe’s claims brought under

42 U.S.C. § 1983, the panel held that Naffe’s factual

allegations did not sufficiently support her claim that Frey

acted under color of state law. The panel determined that: (1)

the allegations did not give rise to a reasonable inference that

Frey harmed Naffe while on duty; (2) Frey’s comments about

Naffe were not sufficiently related to his work as a county

prosecutor; and (3) the facts did not support Naffe’s claim

that Frey “purported or pretended to act under color of [state]

law” when he blogged about her. Finally, the mere fact that

Naffe knew Freywas a prosecutor did not mean he abused his

government position to violate her rights.

Reversing the district court’s dismissal of Naffe’s state

law claims, the panel held that the district court erred when it

required Naffe to establish by a preponderance of the

evidence the amount in controversy for showing federal

diversity jurisdiction. The panel held that it could not say to

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
NAFFE V. FREY 3

a legal certainty that Naffe’s claims were worth less than

$75,000.01.

COUNSEL

Eugene G. Iredale (argued) and Grace Jun, Iredale and Yoo,

APC, San Diego, California, for Plaintiff-Appellant.

Ronald D. Coleman (argued), Archer & Greiner PC,

Hackensack, New Jersey; Kenneth P. White, Brown, White

& Newhouse LLP, Los Angeles, California, for DefendantAppellee John Patrick Frey.

Paul B. Beach (argued) and John W. Nam, Lawrence Beach

Allen & Choi, PC, Glendale, California, for DefendantAppellee County of Los Angeles.

Eugene Volokh, UCLA School of Law, Los Angeles,

California, for Amicus Curiae Digital Media Law Project.

OPINION

TALLMAN, Circuit Judge:

Plaintiff Nadia Naffe appeals the district court’s dismissal

of her 42 U.S.C. § 1983 claim and six related state law causes

of action. Her appeal requires us to resolve two issues. First,

we must decide whether the factual allegations in Naffe’s

complaint are sufficient to support her claim that Defendant

John Patrick Frey—a Los Angeles County Deputy District

Attorney—acted under color of state law for the purposes of

§ 1983 when he published derogatory statements about Naffe
4 NAFFE V. FREY

on his personal Internet blog and on Twitter. Second, we

must determine if the district court erred when it required

Naffe to establish by a preponderance of the evidence the

amount in controversy for showing federal diversity

jurisdiction.

First, we hold that Naffe has not supported adequately her

claim that Frey acted under color of state law for the purposes

of § 1983. Rather, the factual allegations—taken as

true—compel the conclusion that Frey did not act under color

of state law when he blogged and Tweeted about Naffe

because he did so for purely personal reasons, and the

communications were unrelated to his work as a county

prosecutor. Second, we conclude that the district court

applied an incorrect standard to evaluate the amount in

controversy and, as a result, improperly dismissed Naffe’s

state law claims. We therefore affirm in part, reverse in part,

and remand.

I

“Because this is an appeal from the dismissal of an action

pursuant to Federal Rule of Civil Procedure 12(b)(6), we

accept as true the facts alleged in the complaint.” Lee v. City

of Los Angeles, 250 F.3d 668, 677 (9th Cir. 2001) (citation

omitted) (internal quotation marks and brackets omitted). 

Naffe alleges the following facts.

Naffe and Frey are conservative political activists. By

day, Frey is a criminal prosecutor in Los Angeles County

assigned to the gang unit. By night, he maintains a blog,

Patterico’s Pontifications (patterico.com), and a Twitter

handle, @Patterico. On both, he writes and comments

about—among other things—conservative politics, liberal
NAFFE V. FREY 5

media bias, and criminal law. Although he frequently

references his position as a Deputy District Attorney in his

posts and Tweets, his blog contains the following message: 

“The statements made on this web site reflect the personal

opinions of the author. They are not made in any official

capacity, and do not represent the opinions of the author’s

employer.” Frey’s Twitter page displays a similar disclaimer.

Like Frey, Naffe is a well-known political activist. She

is also a former friend and colleague of James O’Keefe, a

conservative politicowho claims to “specializ[e]in producing

undercover videos that style themselves as ‘exposés’ of

liberal political misdeeds.” Naffe admits to assisting O’Keefe

with at least one of his “sting operations,” a 2010 plot to

wiretap Representative Maxine Waters’s congressional

district office, which is located in Los Angeles. Around that

time, O’Keefe checked his email on Naffe’s smart phone. He

did not log out of the email application, and as a result, Naffe

maintained access to O’Keefe’s account and the emails

therein. Naffe and O’Keefe had a falling out in mid-2011

when Naffe accused O’Keefe of sexually assaulting her in a

New Jersey barn.

Thereafter, Frey (who was also a friend of O’Keefe)

wrote eight unfavorable articles about Naffe that he posted to

his blog. He also Tweeted several dozen threatening and

harassing statements about Naffe. In these blog posts and

Tweets, Frey accused Naffe of lying about the barn incident

and filing frivolous lawsuits against O’Keefe. He also called

Naffe a liar, illiterate, callous, self-absorbed, despicable, a

smear artist, dishonest, and absurd. Finally, in one Tweet he

insinuated that Naffe broke the law when she accessed

O’Keefe’s emails: “@NadiaNaffe My First task is learning

what criminal statutes, if any, you have admitted violating.”
6 NAFFE V. FREY

Frey also posted to his blog over 200 pages of a

deposition transcript from an unrelated lawsuit betweenNaffe

and her former employer. The transcript contained

substantial private information, including Naffe’s social

security number and her mother’s maiden name. After Frey

posted this information, Naffe received emails from

Experian—a credit reporting agency—notifying her that

unauthorized individuals made changes to her credit report

and were fraudulently using her social security number.

In late 2012, Naffe filed this action against Frey, the

County of Los Angeles, and several others (collectively,

“defendants”) in federal district court. She invoked both the

district court’s federal question and diversity jurisdiction. 

Naffe’s first amended complaint states seven total claims for

relief—one federal claim and six state law claims. The

federal claim arises under 42 U.S.C. § 1983. According to

Naffe, “[i]n abusing his position as a Deputy District

Attorney . . . , FREY acted under color of state law in his

continuous harassment of PLAINTIFF via his website, blog

and Twitter account. FREY’S harassment of PLAINTIFF

violated her First Amendment constitutional right to petition

the government for redress of grievances.” Naffe also raises

the following California state law claims: public disclosure

invasion of privacy, false light invasion of privacy,

defamation, intentional infliction of emotional distress,

negligence, and negligent supervision (against the County of

Los Angeles).

Naffe alleges that she suffered more than $75,000 worth

of damages as a result of Frey’s conduct. Specifically, she

suffered general and special damages including, “harm to

PLAINTIFF’S reputation, emotional distress, expense related

to medical treatment concerning health issues, including but
NAFFE V. FREY 7

not limited to bleeding ulcers suffered as a result of the stress

and trauma caused by defendants, expense incurred in

defense and repair of her credit rating, lost earnings, and other

pecuniary loss, all of which are in excess of $75,000.”

In early 2013, defendants filed several motions to dismiss

Naffe’s state and federal claims.1 After a hearing, the district

court granted defendants’ dispositive motions, effectively

terminating Naffe’s case in federal court. The court

determined that Frey did not act “under color of state law”

when he blogged and Tweeted 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 six state law claims

for lack of subject matter jurisdiction. Id.; see also Fed. R.

Civ. P. 12(b)(1). In a preliminary ruling on defendants’

motions to dismiss, the district court expressed doubt as to

whether Naffe had sufficiently established the amount in

controversy required for federal diversity jurisdiction. See

Naffe v. Frey, Case 2:12-cv-08443-GW-MRW, slip op. at

5–10 (C.D. Cal. Apr. 18, 2013) (tentative ruling). In response

to these doubts, Naffe elaborated on her alleged injuries in a

sworn declaration. See Plaintiff Nadia Naffe’s Declaration in

Support of Her Opposition to Defendant John Patrick Frey’s

Motion to Dismiss Pursuant to Rule 12(b)(1), Case

1

In her opposition to Frey’s Rule 12(b)(6) motion, Naffe moved to

voluntarily dismiss her § 1983 claim against the County of Los Angeles. 

Because the County cannot be vicariously liable for Frey’s actions under

§ 1983, see Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 691

(1978), Naffe’s § 1983 claim is against Frey alone.
8 NAFFE V. FREY

2:12-cv-08443-GW-MRW (C.D. Cal. Feb. 21, 2013) (Dkt.

# 56-2) (hereinafter “Naffe Decl.”). Notwithstanding this

additional offer of proof, the district court found Naffe did

not sufficiently support her allegation that the amount in

controversy exceeds $75,000. Naffe v. Frey, Case

2:12-cv-08443-GW-MRW, slip op. at 2 (C.D. Cal. Apr. 19,

2013) (order confirming tentative ruling). As a result, the

court determined it did not have jurisdiction over Naffe’s

state law claims under 28 U.S.C. § 1332(a)(1), and it declined

to exercise supplemental jurisdiction over those claims under

28 U.S.C. § 1367(c)(3).

Plaintiff filed a timely notice of appeal. We have

jurisdiction under 28 U.S.C. § 1291.

II

We review de novo a district court’s dismissal for lack of

subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and a

district court’s dismissal for failure to state a claim, Fed. 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 contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citation omitted) (internal quotation marks omitted).

III

Naffe first argues the district court erred when it

concluded that Frey did not act under color of state law for

purposes of § 1983 liability. According to Naffe, Frey

threatened to prosecute her for accessing O’Keefe’s emails

and for her role in the plot to wiretap Representative Waters’s
NAFFE V. FREY 9

Los Angeles office. His goal was to intimidate her into

keeping silent about O’Keefe’s illegal activities, including the

barn incident and his various “sting operations.” In this way,

argues Naffe, Frey used his state authority to violate Naffe’s

constitutional rights to speak and petition the government for

a redress of grievances. See U.S. Const. amend. I. We

disagree. For the following reasons, we hold that Naffe’s

allegations do not “allow [us] to draw the reasonable

inference” that Frey acted under color of state law when he

allegedly denigrated Naffe on the Internet. See Iqbal,

556 U.S. at 678. We therefore affirm the district court’s

dismissal of Naffe’s § 1983 claim.

A

Section 1983 is a “vehicle by which plaintiffs can bring

federal constitutional and statutory challenges to actions by

state and local officials.” Anderson v. Warner, 451 F.3d

1063, 1067 (9th Cir. 2006). It provides that:

[e]very person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District

of Columbia, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff

[1] must allege the violation of a right secured by the
10 NAFFE V. FREY

Constitution and laws of the United States, and [2] must show

that the alleged deprivation was committed by a person acting

under color of state law.” West v. Atkins, 487 U.S. 42, 48

(1988). Dismissal of a § 1983 claim following a Rule

12(b)(6) motion is proper if the complaint is devoid of factual

allegations that give rise to a plausible inference of either

element. See, e.g., DeGrassi v. City of Glendora, 207 F.3d

636, 647 (9th Cir. 2000); Price v. Hawaii, 939 F.2d 702,

707–09 (9th Cir. 1991); see also Iqbal, 556 U.S. at 678. We

focus our analysis on the state action requirement.

An individual acts under color of state law when he or she

exercises power “possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the

authority of state law.” United States v. Classic, 313 U.S.

299, 326 (1941); see also Dang Vang v. Vang Xiong X.

Toyed, 944 F.2d 476, 479 (9th Cir. 1991) (“‘[I]t is firmly

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 West, 487 U.S. at 49–50)). This test is

generally satisfied when a state employee, like a deputy

district attorney, wrongs someone “while acting in his official

capacity or while exercising his responsibilities pursuant to

state law.” West, 487 U.S. at 50. But § “1983 does not

federalize all torts or other deprivations of rights committed

by a person who is a law enforcement officer or other

government agent.” Myers v. Bowman, 713 F.3d 1319, 1329

(11th Cir. 2013) (citation omitted) (internal quotation marks

omitted); see also Van Ort v. Estate of Stanewich, 92 F.3d

831, 838 (9th Cir. 1996). Particularly when the state

employee is off duty, whether he or she “is acting under color

of state law turns on the nature and circumstances of the

[employee’s] . . . conduct and the relationship of that conduct

to the performance of his official duties.” Anderson,
NAFFE V. FREY 11

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

omitted).

Although we have never decided if and when a state

employee who moonlights as a blogger acts under color of

state law, we have considered more generally when the

actions of off-duty state employees give rise to § 1983

liability. In Stanewich, for example, we held that defendant

Stanewich—a San Diego sheriff’s deputy—did not act under

color of state law when he attempted to rob plaintiffs, the Van

Orts. See 92 F.3d at 838. Although he originally identified

his victims during a police search of their home, at the time

of the attempted robbery “Stanewich was attired not in

uniform but in blue jeans and wore a mask, sunglasses and

cap in an attempt to conceal his identity. . . . He did not

display a badge to plaintiffs and denied being a police

officer.” Id. at 833–34, 838 (citation omitted). We concluded

that Stanewich did not act under color of state law during the

attempted robbery because “[a]t no point did Stanewich

purport to be acting as a policeman,” and even if the victims

recognized him as an officer, that recognition “does not alone

transform private acts into acts under color of state law.” Id.

at 839.

We came to the opposite conclusion in McDade v. West,

223 F.3d 1135 (9th Cir. 2000), and Anderson, 451 F.3d at

1065, based on distinguishing facts. In McDade, defendant

“West, as an employee of the [Ventura County] District

Attorney’s office, illegally used its Medical Eligibility Data

computer system”—to which she had access only because of

her official position—to find her husband’s ex-wife, who was

living in a battered women’s shelter. 223 F.3d at 1137. We

held that West acted under color of state law because she

“abused her responsibilities and purported or pretended to be
12 NAFFE V. FREY

a state officer during the hours in which she accessed the

computer.” Id. at 1141. In Anderson, Defendant Warner—a

jail commander in Mendocino County—assaulted Anderson

after Anderson rear-ended him. 451 F.3d at 1065. Warner

was off duty, driving in his car with his wife and a friend. 

Nevertheless, Warner prevented bystanders from intervening

in his attack by claiming that he was “a cop,” a claim that his

passengers echoed. See id. at 1065–66. We held that Warner

acted under color of state law because he invoked (and

therefore abused) his law enforcement status while assaulting

Anderson, and there was a close nexus between his work at

the jail and his claim that the assault was “police business.” 

Id. at 1066.

Stanewich, McDade, and Anderson establish our

framework for determining whether Naffe pleaded facts

sufficient to support her allegation that Frey acted under color

of state law. Under those cases, a state employee who is on

duty, or otherwise exercises his official responsibilities in an

off-duty encounter, typically acts under color of state law. 

See West, 487 U.S. at 49–50; McDade, 223 F.3d at 1139–41. 

That is true even if the employee’s offensive actions were

illegal or unauthorized. See Monroe v. Pape, 365 U.S. 167,

172 (1961), overruled on other grounds by Monell v. Dep’t of

Soc. Servs. of N.Y.C., 436 U.S. 658 (1978). A state employee

who is off duty nevertheless acts under color of state law

when (1) the employee “purport[s] to or pretend[s] to act

under color of law,” Stanewich, 92 F.3d at 838; McDade,

223 F.3d at 1141, (2) his “pretense of acting in the

performance of his duties . . . had the purpose and effect of

influencing the behavior of others,” Anderson, 451 F.3d at

1069, and (3) the harm inflicted on plaintiff “‘related in some

meaningful way either to the officer’s governmental status or

to the performance of his duties,’” id. (quoting Martinez v.
NAFFE V. FREY 13

Colon, 54 F.3d 980, 987 (1st Cir. 1995)). On the other hand,

a government employee does not act under color of state law

when he pursues private goals via private actions. See id.; see

also Townsend v. Moya, 291 F.3d 859, 861–62 (5th Cir.

2002).

B

Naffe’s § 1983 claim fails under this framework for

several reasons. First, Naffe’s factual allegations do not give

rise to the reasonable inference that Frey harmed Naffe while

on duty or when “exercising his responsibilities pursuant to

state law.” West, 487 U.S. at 50. Frey is a county prosecutor

whose official responsibilities do not include publicly

commenting about conservative politics and current events. 

Cf. McDade, 223 F.3d at 1140 (finding state action when

“West was authorized by the County, and expected as part of

her official duties, to access the MEDS database”). While

county prosecutors are sometimes authorized to speak on

behalf of their employers, Naffe pleads no facts to support her

allegation that the County authorized or encouraged Frey’s

social and political commentary. Indeed, Frey discussed

Naffe not on the Los Angeles County District Attorney’s

verified2 Twitter page, see LA District Attorney, Twitter.com,

https://twitter.com/LADAOffice (last visited May 26, 2015),

but rather on his personal Twitter page and blog, which

contain disclaimers that “[a]ll statements are made in [Frey’s]

2 Twitter “verifies” certain accounts to “establish authenticity of

identities of key individuals and brands on Twitter.” FAQs about verified

accounts, Twitter.com, https://support.twitter.com/articles/119135-faqsabout-verified-accounts (last visited May 26, 2015). In other words,

verification is Twitter’s method of ensuring at least some of its users are

who they say they are. Twitter identifies verified users by displaying a

blue check symbol next to the user’s Twitter handle.
14 NAFFE V. FREY

private capacity and not on behalf of [his] employer.” 

Finally, each Tweet or post cited by Naffe in her complaint is

time-stamped very late at night or early in the morning, a fact

which undermines her claim that Frey blogged and Tweeted

during normal business hours using County resources. Cf.

McDade, 223 F.3d at 1140 (finding persuasive the fact that

West “accessed the database during normal working hours”).

Second, Frey’s comments about Naffe are not sufficiently

related to his work as a county prosecutor to constitute state

action. Naffe alleges Frey threatened to prosecute her as a

way of coercing her to delete O’Keefe’s emails from her

smart phone and remain quiet about O’Keefe’s plan to

wiretap Representative Waters’s district office. But Naffe

does not state any facts to support the allegation that Frey

investigated her (or even could have investigated her). Iqbal,

556 U.S. at 678. She does not, for example, allege Frey used

his authority to contact law enforcement, open an

investigation file, or interview witnesses about Naffe’s

involvement with O’Keefe. And a single Tweet in which

Frey rhetorically asked “what criminal statutes, if any,

[Naffe] admitted violating,” does not create a nexus between

Frey’s private harangues and his job. See Brentwood Acad.

v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295

(2001) (“[S]tate action may be found if, though only if, there

is such a close nexus between the State and the challenged

action that seemingly 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

Frey “purported or pretended to act under color of [state]

law” when he blogged about her. See Stanewich, 92 F.3d at

838. To the contrary, Frey frequently reminded his readers
NAFFE V. FREY 15

and followers that, although he worked for Los Angeles

County, he blogged and Tweeted only in his personal

capacity. By contrast, in Anderson, where we found state

action, defendant Warner specifically associated his actions

with his law enforcement position, claiming to bystanders he

was “a cop,” and the assault was “police business.” 451 F.3d

at 1066–67. Here, unlike in Anderson, Frey did not claim to

act in his official capacity. For this reason, Frey did not

abuse the power given to him by the state to influence or

harm Naffe.

And although Frey drew on his experiences as a Deputy

District Attorney to inform his 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 though Stanewich drew on knowledge he

gained as a police officer to identify his victims). Indeed, if

we were to consider every comment by a state employee to be

state action, the constitutional rights of public officers to

speak their minds as private citizens would be substantially

chilled to the detriment of the “marketplace of ideas.” See

City of San Diego, Cal. v. Roe, 543 U.S. 77, 82 (2004) (per

curiam) (“[P]ublic employees are often the members of the

communitywho are likely to have informed opinions as to the

operations of their public employers, operations which are of

substantial concern to the public. Were they not able to speak

on these matters, the community would be deprived of

informed opinions on important public issues.”); cf. Garcetti

v. Ceballos, 547 U.S. 410, 421 (2006) (“[W]hen public

employees [including deputy district attorneys] make

statements pursuant to their official duties, the employees are

not speaking as citizens for First Amendment purposes, and

the Constitution does not insulate their communications from

employer discipline.” (emphasis added)).
16 NAFFE V. FREY

Finally, the mere fact that Naffe knew Frey was a

prosecutor does not mean he abused his government position

to violate her rights. See Stanewich, 92 F.3d at 839 (“Merely

because Donald recognized Stanewich, however, would not

make the attack under color of law.”). Indeed, the focus of

the inquiry is not on what Naffe knew about Frey but rather

on how Frey used his position as a state employee to harm

Naffe, and Naffe has pleaded insufficient facts to support her

numerous allegations that Frey used his position as a Deputy

District Attorney to harm her. See Iqbal, 556 U.S. at 678

(requiring a complaint to contain alleged factual matter

sufficient to support a plausible claim to relief).

In sum, Naffe seeks to support her allegation of state

action by claiming repeatedly that Frey acted “[i]n his

capacity as a Deputy District Attorney” when he criticized

her online. But she does not allege facts that support this

claim. And, as the district court correctly held, a bare claim

of state action does not withstand a Rule 12(b)(6) motion. 

See id. at 678; Price, 939 F.2d at 708 (“[A] defendant is

entitled to more than the bald legal conclusion that there was

action under color of state law.”).3

IV

Naffe next argues the district court erred when it

dismissed her six state law claims for lack of subject matter

jurisdiction. Even absent a § 1983 claim, Naffe asserts

federal courts have jurisdiction over her state law claims

pursuant to 28 U.S.C. § 1332(a)(1) because the parties are

3 Because we affirm on the “state action” prong, we do not consider

whether Naffe sufficiently alleged “the violation of a right secured by the

Constitution and laws of the United States.” West, 487 U.S. at 48.
NAFFE V. FREY 17

from different states and the amount in controversy exceeds

$75,000. After briefing and a hearing, the district court

concluded that Naffe did not establish by a preponderance of

the evidence that she satisfied § 1332’s amount in

controversy requirement. Naffe v. Frey, Case

2:12-cv-08443-GW-MRW, slip op. at 2 (C.D. Cal. Apr. 19,

2013) (order confirming tentative ruling). As a result, the

court dismissed her case for lack of subject matter

jurisdiction. We conclude that the district court applied an

incorrect legal standard to evaluate the amount in

controversy, and so we reverse and remand.

A

To establish federal jurisdiction under § 1332(a)(1), the

proponent must allege (1) the parties are completely diverse,

and (2) the amount in controversy exceeds $75,000. See 28

U.S.C. § 1332(a)(1); McNutt v. Gen. Motors Acceptance

Corp. of Ind., 298 U.S. 178, 189 (1936). Only the second

requirement is at issue here.4

When a plaintiff files suit in federal court, we use the

“legal certainty” test to determine whether the complaint

meets § 1332(a)’s amount in controversy requirement. See

Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d

362, 363–64 (9th Cir. 1986) (adopting the “legal certainty”

test); 14AA The Late Charles Alan Wright, et al., Federal

4

It is uncontested that Naffe is domiciled in Massachusetts, Frey is

domiciled in California, and the County of Los Angeles is a citizen of

California for purposes of diversity jurisdiction, see Moor v. Alameda

Cnty., 411 U.S. 693, 717–18, 721–22 (1973). The parties are thus

“completely diverse.” See Strawbridge v. Curtiss, 7 U.S. 267, 267–68

(1806).
18 NAFFE V. FREY

Practice & Procedure, Jurisdiction § 3702 (4th ed. 2015)

(noting that this test “has become the universal test in the

context of actions that originate in the federal courts”). 

Under this test, “the sum claimed by the plaintiff controls if

the claim is apparently made in good faith. It must appear to

a legal certainty that the claim is really for less than the

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 ex rel.

Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010). As we have

recognized:

the legal certainty test makes it very difficult

to secure a dismissal of a case on the ground

that it does not appear to satisfy the

jurisdictional amount requirement. Onlythree

situations clearly meet the legal certainty

standard: 1) when the terms of a contract limit

the plaintiff’s possible recovery; 2) when a

specific rule of law or measure of damages

limits the amount of damages recoverable;

and 3) when independent facts show that the

amount of damages was claimed merely to

obtain federal court jurisdiction.Pachinger,

802 F.2d at 364 (quoting 14A Wright, Miller,

& Cooper, Federal Practice & Procedure,

Jurisdiction § 3702, at 48–50 (2d ed. 1985)).

Citing McNutt, 298 U.S. at 189, the district court required

Naffe to establish the amount in controversy by a

preponderance of the evidence, and it dismissed her case

when she failed to meet this burden. Naffe v. Frey, Case

2:12-cv-08443-GW-MRW, slip op. at 6 & n.11 (C.D. Cal.

Apr. 18, 2013). That was error. It is true that some cases
NAFFE V. FREY 19

warrant a more thorough inquiry into the facts underpinning

jurisdiction than the legal certaintytest permits. For example,

where a party seeks to remove a case from state to federal

court under 28 U.S.C. § 1441, the proponent of removal bears

the burden of establishing federal jurisdiction by a

preponderance of the evidence. Geographic Expeditions,

599 F.3d at 1106–07; Gaus v. Miles, 980 F.2d 564, 566–67

(9th Cir. 1992) (applying McNutt’s preponderance test to

evaluate the jurisdictional amount in a removal case); cf.

Harris v. Rand, 682 F.3d 846, 851 (9th Cir. 2012) (noting that

a district court may require a party to establish certain

jurisdictional facts, like the location of a business’s “nerve

center,” by a preponderance of the evidence); Meridian Sec.

Ins. v. Sadowski, 441 F.3d 536, 540–41 (7th Cir. 2006)

(applying the legal certainty test to answer the ultimate legal

question whether the amount in controversy requirement is

satisfied, but asking the proponent of jurisdiction to establish

by a preponderance of the evidence certain facts underlying

the claimed amount). But that more searching inquiry is

inapplicable where, as here, the plaintiff files suit originally

in federal court, the case raises traditional state tort claims,

and the complaint affirmatively alleges that the amount in

controversy exceeds the jurisdictional threshold. In such a

case, the legal certainty test applies, and the district court

must accept the amount in controversy claimed by the

plaintiff unless it can declare to a legal certainty that the case

is worth less. See St. Paul Mercury, 303 U.S. at 288–89.

B

Here, it does not appear to a legal certainty that Naffe’s

claim is really for less than the jurisdictional amount. Naffe

alleges she incurred more than $75,000 in damages as a result

of Frey’s conduct. That sum includes the money Naffe
20 NAFFE V. FREY

allegedly spent repairing her credit history after Frey posted

her social security number and other private information

online. It also includes damages resulting from the medical

problems, emotional distress, lost job opportunities, and harm

to her reputation she allegedly suffered because of the

disparaging comments Frey published about her. Naffe

reaffirmed these allegations in a sworn declaration. If Naffe

proves these facts at trial, a jury could reasonably award her

damages exceeding $75,000. See, e.g., Hope v. Cal. Youth

Auth., 134 Cal. App. 4th 577, 595 (2005) (affirming a $1

million verdict for emotional distress damages). See

generally 6A Robert F. Koets, et al., Cal. Jurisprudence 3d

Assault & Other Willful Torts § 144 (2015) (discussing the

availability of damages for privacy torts). In other words, no

“rule of law or limitation of damages would make it virtually

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] show that the amount of

damages was claimed merely to obtain federal court

jurisdiction.” See id. Thus, Naffe’s state law tort claims

satisfythe amount in controversyrequirement, and the district

court erred when it dismissed the case for lack of subject

matter jurisdiction.

V

The district court properly dismissed Naffe’s § 1983

claim because her unsupported legal conclusions do not

“allow [us] to draw the reasonable inference” that Frey acted

under color of state law when he blogged and Tweeted about

Naffe. See Iqbal, 556 U.S. at 678. But the district court erred

when it dismissed Naffe’s state law claims for lack of subject

matter jurisdiction because we cannot say to a legal certainty
NAFFE V. FREY 21

that Naffe’s claims are worth less than $75,000.01. The

district court’s judgment is therefore

AFFIRMED in part, REVERSED in part, and

REMANDED.

Each party shall bear its own costs.