FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DELORES LEWIS, individually and 

on behalf of a class of similarly No. 10-56512 situated individuals,

Plaintiff-Appellee, D.C. No.  2:10-cv-02337-PSGv. MAN

VERIZON COMMUNICATIONS, INC., a OPINION Delaware corporation,

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted

November 3, 2010—Pasadena, California

Filed November 18, 2010

Before: Mary M. Schroeder, Richard C. Tallman and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Schroeder

18841
COUNSEL

Michael J. McMorrow, Chicago, Illinois, for plaintiff-appellee

Delores Lewis, et al.

Paul J. Watford, Los Angeles, California, for defendantappellant Verizon Communications, Inc.

OPINION

SCHROEDER,Circuit Judge:

This is an appeal under the Class Action Fairness Act

(“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified in

scattered sections of 28 U.S.C.). The Act authorizes the

removal of class action lawsuits from state to federal court

where the amount in controversy exceeds $5 million, exclusive of interest and costs. 28 U.S.C. § 1332(d)(2). The issue

before us is whether the district court properly remanded the

case to state court on the ground that this requirement was not

satisfied. 

CAFA mandates a prompt disposition of controversies that

arise over issues relating to jurisdiction under the Act. All of

the deadlines have been satisfied by the parties, thus an appeal

must be decided within 60 days after it is filed. 28 U.S.C.

§ 1453(c)(2). Hence, we are required to decide this appeal no

later than November 22, 2010, 60 days after the petition for

appeal was granted. See Amalgamated Transit Union v.

Laidlaw Transit Services, Inc., 435 F.3d 1140, 1144 (9th Cir.

2006) (“[T]here is no appeal until the petition for permission

is granted, and the entry of the order granting permission

serves as the notice of appeal for all timing issues.”).

In this circuit, when the complaint does not contain any

specific amount of damages sought, the party seeking removal

18844 LEWIS v. VERIZON COMMUNICATIONS
under diversity bears the burden of showing, by a preponderance of the evidence, that the amount in controversy exceeds

the statutory amount. Guglielmino v. McKee Foods Corp.,

506 F.3d 696, 699 (9th Cir. 2007); see also Lowdermilk v.

U.S. Bank Nat’l Ass’n., 479 F.3d 994 (9th Cir. 2007) (removing defendant has the burden to show amount in controversy

“to a legal certainty” when complaint pleads damages less

than CAFA’s jurisdictional amount). To satisfy its burden in

this case, the removing defendant, Verizon Communications,

Inc. (“Verizon”), supplied an affidavit to show that the potential damages could exceed the jurisdictional amount. We conclude that this showing satisfies Verizon’s burden. We

therefore vacate the district court’s order remanding the case

to state court, and remand to the district court for further proceedings. In doing so, we reach a conclusion similar to that

reached by the Seventh Circuit in Spivey v. Vertrue, Inc., 528

F.3d 982 (7th Cir. 2008). That case, like this one, involved

claims for unauthorized billings, and the defendant in that

case, like Verizon, submitted an affidavit showing its total billings exceeded the jurisdictional amount. Id. at 985.

BACKGROUND

The named plaintiff, Delores Lewis, filed this case in California state court on December 9, 2009. The complaint concerns charges billed by the defendant, Verizon, on behalf of

Enhanced Services Billing, Inc. (“ESBI”), a billing processor,

or “aggregator,” for third-party vendors who offer telephonerelated services. This includes weather and traffic reports,

sports scores, stock tips, and jokes—all of which are known

as “premium content.” ESBI bills customers for this premium

content through local landline telephone providers, like Verizon, which places a charge on a subscriber’s bill.

Lewis claims Verizon billed her for services that she never

ordered. Describing these charges as “unauthorized,” she

seeks to represent a class of landline Verizon customers in

California who have been billed for such services that they

LEWIS v. VERIZON COMMUNICATIONS 18845
never expressly agreed to or requested. The operative complaint states no fixed amount for damages sought. 

On March 30, 2010, Verizon filed a notice of removal in

the District Court for the Central District of California alleging that the case satisfied the $5 million amount in controversy requirement under CAFA, 28 U.S.C. § 1332(d). That

section provides in relevant part “[t]he district courts shall

have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000,

exclusive of interest and cost . . . .” Id. at § 1332(d)(2). 

In support of their notice of removal, Verizon submitted a

declaration of Paul E. Glover, Verizon’s Senior Consultant for

Product Management and Development, to establish that

members of the class were billed more than $5 million during

the relevant period:

I have reviewed Verizon’s records for charges billed

by Verizon on behalf of ESBI to landline telephone

subscribers in California from March 1, 2006 to the

present. The records show that these subscribers

were billed more than $5 million, exclusive of fees

and interest, from March 1, 2006 until the present for

ESBI charges . . . .

On April 29, 2010, Plaintiff filed a motion to remand the

action to state court on the ground that Verizon failed to carry

its burden of demonstrating that the case satisfies CAFA’s

amount in controversy requirement. Plaintiff’s motion to

remand proffered no evidence or new allegation that the

amount the class might be entitled to receive was less than

Verizon’s total ESBI billings. Nor did Plaintiff concede that

the class sought a recovery of less than $5 million. Instead,

Plaintiff contended that, because the complaint challenged

only “unauthorized” charges, there was a distinction between

“unauthorized” and “authorized” charges for the purposes of

determining the amount in controversy. Relying on such a dis18846 LEWIS v. VERIZON COMMUNICATIONS
tinction, Plaintiff attacked the Glover Declaration as “incompetent,” since it only spoke to the amount of Verizon’s gross

billings to consumers for ESBI content. On June 30, 2010, the

district court granted Plaintiff’s motion to remand, and on

September 24, 2010, we granted Verizon’s petition for permission to appeal the remand pursuant to 28 U.S.C. § 1453(c),

authorizing interlocutory review of a CAFA removal order. 

In ordering the matter remanded to the state court, the district court adopted Plaintiff’s distinction between “authorized”

and “unauthorized” charges to hold that the complaint placed

only the unauthorized charges into controversy. Lewis v. Verizon Commc’ns, Inc., 2010 WL 2650363, at *3 (C.D. Cal. June

30, 2010). Thus, according to the district court, the Glover

Declaration did not satisfy the Defendant’s burden to demonstrate the requisite amount in controversy, since it describes

the total sum of all ESBI charges billed by Verizon, not just

the “unauthorized” ones. Id. at *3. There was, however, no

evidence to support the premise that some portion of the

charges alleged in the complaint were “authorized.” Nor did

any pleading suggest the class recovery would be less than $5

million. 

Verizon contends on appeal that, given the Plaintiff’s

refusal to limit the damages sought and Verizon’s showing

that the total billings exceed $5 million, the total billings constitute the “amount in controversy.” We agree.

DISCUSSION

Prior to CAFA, a class action could be heard in federal

court under diversity jurisdiction only if there was complete

diversity, i.e., all class representatives were diverse from all

defendants, and if at least one named plaintiff satisfied the

amount in controversy requirement of more than $75,000.

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546

(2005). Viewing these two limitations as “defects in diversity

jurisdiction,” Congress, in 2005, passed CAFA, which signifiLEWIS v. VERIZON COMMUNICATIONS 18847
cantly expanded federal jurisdiction in diversity class actions.

See David Marcus, Erie, the Class Action Fairness Act, and

Some Federalism Implications of Diversity Jurisdiction, 48

WM. & MARY L. REV. 1247, 1289-90 (2007). 

CAFA, however, aimed to limit federal jurisdiction to

larger class actions. CAFA originally included a $2 million

amount in controversy requirement, but it was increased to $5

million after the Congressional Budget Office reported that

“the bill would impose additional costs on the Federal district

court system” since most class-action lawsuits would likely

satisfy the $2 million requirement. See Letter from Dan L.

Crippen, Dir., Cong. Budget Office, to F. James Sensenbrenner, Jr., Chairman, Comm. on the Judiciary, U.S. House of

Representatives (Mar. 11, 2002), in H.R. Rep. No. 107-370,

at 27.

CAFA was also designed to settle jurisdictional issues

early. Thus, appeals must be filed “not more than 10 days”

after a remand order. 28 U.S.C. § 1453(c)(1). If the court of

appeals accepts the appeal, the court must issue a final judgment not more than 60 days later. Id. at § 1453(c)(2). And if

the court of appeals does not issue judgment within the time

allowed, “the appeal shall be denied.” Id. at § 1453(c)(4).

Although CAFA is relatively new, the concept of an

“amount in controversy” has a long history. Congress originally created a jurisdictional amount for diversity jurisdiction

in the Judiciary Act of 1789. That statute established a $500

jurisdictional amount, intended as a floor for the size of cases

that could reach the federal courts. “Congress has used the

requirement of an amount in controversy to limit the original

and derivative access to the lower federal courts.” Thomas E.

Baker, The History and Tradition of the Amount in Controversy Requirement: A Proposal to “Up the Ante” in Diversity

Jurisdiction, 102 F.R.D. 299, 302-03 (1984). Over the years,

Congress has seen fit to increase the amount, but its purpose

has remained the same — “to ensure that a dispute is suffi18848 LEWIS v. VERIZON COMMUNICATIONS
ciently important to warrant federal-court attention.” Exxon

Mobil Corp., 545 U.S. at 548. The law with respect to establishing an “amount in controversy” has thus developed in the

context of diversity jurisdiction. 

[1] In determining the amount, we first look to the complaint. Generally, “the sum claimed by the plaintiff controls

if the claim is apparently made in good faith.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).

The complaint, however, does not always state a specific sum,

and in such cases, this court has recognized different burdens

of proof depending on the specific circumstances. Guglielmino, 506 F.3d at 699. The fundamental principle laid down

in diversity cases, nevertheless, remains under CAFA: the

party asserting federal jurisdiction has the burden of showing

the case meets the statutory requirements for the exercise of

federal jurisdiction and therefore belongs in federal court.

This traditional rule of burden allocation to determine

removal jurisdiction comports with the Supreme Court’s view

that “[t]he dominant note in the successive enactments of

Congress relating to diversity jurisdiction is one of jealous

restriction, of avoiding offense to state sensitiveness, and of

relieving the federal courts of the overwhelming burden of

‘business that intrinsically belongs to the state courts’ in order

to keep them free for their distinctive federal business.” Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 76, 62 S.Ct. 15, 86

L.Ed. 47 (1941) (citing Henry J. Friendly, The Historic Basis

of Diversity Jurisdiction, 41 HARV.L.REV. 483, 510 (1928)).

[2] Thus we expressly recognized in Abrego Abrego v.

Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006), that

under CAFA the burden of establishing removal jurisdiction

is, as it was before CAFA, on the party wishing to see the

case in federal court. While CAFA relaxed the federal

removal requirements in some respects, it did not alter the traditional rule which places the burden of establishing removal

jurisdiction “on the proponent of federal jurisdiction.” Id. This

means that jurisdictional issues may be disputed, and, when

LEWIS v. VERIZON COMMUNICATIONS 18849
they are, the burden is on the party removing the case from

state court to show the exercise of federal jurisdiction is

appropriate.

[3] In this case the Plaintiff alleges that she and the other

putative class members are being billed by Verizon for premium services they never ordered. In the complaint the

charges at issue are termed “unauthorized” charges. To support removal, Verizon submitted an affidavit that its total billings for all ESBI services in California exceeded $5 million.

There was no contrary evidence, no showing that some substantial part of the total billings was “authorized,” and no allegation that Plaintiff sought less than $5 million.

In what may well be at root a semantic misunderstanding,

the district court refused to accept the total billings as representing the amount in controversy. Instead, looking to the

allegations of the complaint, it held that the total billings

could not represent the amount in controversy because the

complaint was claiming liability only for charges that were

“unauthorized.” Lewis, 2010 WL 2650363 at *2. The district

court thus assumed total billings would include both authorized and unauthorized charges and held that the Defendant

had failed to meet its burden under our case law to show the

amount in controversy, i.e., unauthorized charges, exceeded

the jurisdictional amount. Id. at *4.

[4] There is no evidence or allegation to support this

assumption, however. The Plaintiff has alleged that the putative class has been billed for unauthorized charges; the Defendant has put in evidence of the total billings and the Plaintiff

has not attempted to demonstrate, or even argue, that the

claimed damages are less than the total billed. Indeed, even

though it was not apparent in the district court, before us the

Defendant has conceded that where proposed class members

have been billed for services they did not order, they are entitled to a refund. Hence, on this record, the entire amount of

the billings is “in controversy.” The amount in controversy is

18850 LEWIS v. VERIZON COMMUNICATIONS
simply an estimate of the total amount in dispute, not a prospective assessment of defendant’s liability. See McPhail v.

Deere & Co., 529 F.3d 947, 956 (10th Cir. 2008) (“The

amount in controversy is not proof of the amount the plaintiff

will recover. Rather, it is an estimate of the amount that will

be put at issue in the course of the litigation.”). To establish

the jurisdictional amount, Verizon need not concede liability

for the entire amount, which is what the district court was in

essence demanding by effectively asking Verizon to admit

that at least $5 million of the billings were “unauthorized”

within the meaning of the complaint. 

[5] The district court rejected the reasoning of the two circuits that have, in circumstances similar to this, held a showing on the part of the defendant of the total amounts billed for

services challenged by the complaint is sufficient to establish

the jurisdictional amount. Spivey, 528 F.3d at 985-986; Stawn

v. AT&T Mobility LLC, 530 F.3d 293, 295 (4th Cir. 2008).

The district court followed other district courts in this circuit

that incorrectly read the other circuits’ decisions as resting on

pleadings rather than on an evidentiary showing. See, e.g.,

Amezcua v. Cellco P’ship, 2009 WL 1190553 (N.D. Cal. May

4, 2009).

[6] The law in our circuit is articulated a little differently

from that of others, in that we expressly contemplate the district court’s consideration of some evidentiary record. See

generally Diane B. Bratvold & Daniel J. Supalla, Standard of

Proof to Establish Amount in Controversy When Defending

Removal Under the Class Action Fairness Act, 36 WM.

MITCHELL L. REV. 1397 (2010). We employ a preponderance

of the evidence standard when the complaint does not allege

a specific amount in controversy. Guglielmino, 506 F.3d at

699. The Seventh Circuit, along with the First and Second

Circuits, apply what may be a lower standard of proof: a “reasonable probability” standard. See, e.g., Brill v. Countrywide

Home Loans, Inc., 427 F.3d 446, 449 (7th Cir. 2005) (when

the complaint is “silent or ambiguous on one or more of the

LEWIS v. VERIZON COMMUNICATIONS 18851
ingredients needed to calculate the amount in controversy . . .

the removing litigant must show a reasonable probability that

the stakes exceed the minimum.”); see also Amoche v. Guarantee Trust Life Ins. Co., 556 F.3d 41, 48 (1st Cir. 2009);

DiTolla v. Doral Dental IPA of New York, 469 F.3d 271, 277

(2nd Cir. 2006). The Fourth Circuit has not adopted a specific

standard of proof, although “several district courts within the

Fourth Circuit have concluded that the appropriate standard of

proof is preponderance of the evidence.” Laws v. Priority

Trustee Services of N.C., L.L.C., 2008 WL 3539512 at * 2

(W.D.N.C. Aug. 11, 2008). Both the Seventh Circuit in Spivey

and the Fourth Circuit in Strawn have looked to evidence outside the complaint when the complaint is silent as to the

amount. Regardless of the label applied to the standard of

proof, the result in this case should be the same as that in the

Seventh and Fourth Circuits’ decisions in Spivey and Strawn.

Spivey is the closest to our case. In Spivey, the plaintiff

filed suit in state court seeking to represent a class of customers allegedly billed by a marketing company for unauthorized

charges. 528 F.3d at 983. The complaint alleged that imposing

unauthorized charges on customers was a standard practice of

the defendant. Id. at 985-86. As in this case, the defendant

removed the action to federal court under CAFA, and also

supplied an affidavit to show that its total charges exceeded

$5 million, but the district court found the evidentiary showing insufficient, remanding the case to state court. Id. The

Seventh Circuit reversed, holding that the defendant had satisfied its burden. It concluded that if the defendant routinely

imposed such charges without authorization, all such charges

are in play. “Once the proponent of federal jurisdiction has

explained plausibly how the stakes exceed $5 million, . . .

then the case belongs in federal court unless it is legally

impossible for the plaintiff to recover that much.” Id. at 986.

The Fourth Circuit decision is similar. In Strawn, the plaintiff filed suit in state court seeking to represent a class of customers who were automatically enrolled in a “Roadside

18852 LEWIS v. VERIZON COMMUNICATIONS
Assistance” program when signing up for cellular phone service. 530 F.3d at 294. The district court limited the class to

customers who paid the fee “unwillingly.” Id. The Fourth Circuit vacated the remand order because the complaint did not

distinguish between “willing” and “unwilling” customers, and

thus included any phone customer who was charged the fee

after being automatically enrolled in the program. Id. at 299.

It relied on AT&T’s affidavit stating the approximate number

of customers in West Virginia enrolled in the program, coupled with the existence of minimum statutory damages, to

hold that AT&T satisfied the jurisdictional burden. Id. at

298-299 (“[T]he minimum amount of class damages, if the

plaintiffs were to succeed on the merits, would be

$11,760,000 (the minimum statutory damages of $200 per

customer x 58,800 customers)”).

[7] Here, as in Spivey and Strawn, the stakes exceed $5

million. The Plaintiff is seeking recovery from a pot that

Defendant has shown could exceed $5 million and the Plaintiff has neither acknowledged nor sought to establish that the

class recovery is potentially any less. The amount in controversy on this record therefore comprises the total billings and

the jurisdictional amount is satisfied. Verizon has acknowledged at oral argument that Plaintiff is due refunds of billings

for services never requested. The district court, on the basis

of a record that lacked the clarity provided by the arguments

on appeal, erred in assuming, without pleading or proof, that

some significant portion of the total billings were “authorized” and separate from the damages the Plaintiff seeks.

Verizon has borne its burden to show the amount in controversy exceeds $5 million.

The remand order is VACATED and the case is

REMANDED for further proceedings in district court.

LEWIS v. VERIZON COMMUNICATIONS 18853