Michael Nathan, individually and on behalf of all others similarly situated v. Fry’s Electronics Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL NATHAN, individually and on
behalf of all others similarly situated,
Plaintiff - Appellant,
v.
FRY’S ELECTRONICS INC.; et al.,
Defendants - Appellees.
No. 13-55920
D.C. No. 2:12-cv-08677-PSG-
GW-RZ
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted June 2, 2015 **
Pasadena, California
Before: FERNANDEZ, FISHER, and BEA, Circuit Judges.
Michael Nathan appeals the district court’s dismissal of his complaint for
failure to state a claim upon which relief can be granted, pursuant to a motion to
FILED
JUN 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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dismiss on those grounds filed by defendants Fry’s Electronics, Inc., Vladimir
Pleskov, Syed Fahad, and Nuance Communications, Inc (collectively, “Nuance”). 1
We affirm.
The district court correctly determined that it had jurisdiction over this
putative class action pursuant to the Class Action Fairness Act (“CAFA”). The
parties agree that minimal diversity exists, as Nathan is a California citizen and
Nuance Communications is a Delaware corporation whose principal place of
business is Massachusetts. Nathan contests, however, whether the amount in
controversy exceeds $5 million. Nathan’s state court complaint included claims on
behalf of a putative “Plaintiff Class” of all persons who purchased Nuance
Communications’s Dragon speech recognition software in California since August
1, 2008. When Nuance Communications filed its notice of removal pursuant to
CAFA, it attached an affidavit from a Senior Vice President which stated that
Nuance Communications’s sales in California during the relevant time period
exceeded $5 million. No contrary evidence was proffered. Thus, Nuance
established by a preponderance of the evidence that the total amount in controversy
1 Nathan presents no legal argument contesting the entry of judgment
against him on his claims against Judge Gutierrez and the United States District
Court for the Central District of California. That issue is thereby waived.
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exceeds the jurisdictional minimum, and federal jurisdiction exists. Guglielmino v.
McKee Foods Corp., 506 F.3d 696, 701 (9th Cir. 2007).
We turn to Nathan’s appeal of the district court’s denial of Nathan’s motion
for entry of default. Nuance argues that this court lacks jurisdiction to review the
district court’s ruling because that ruling was not a final order. Nuance is wrong.
The denial of Nathan’s motion for default constitutes an interlocutory order. Upon
entry of final judgment, “the interlocutory order merges in the final judgment and
may be challenged in an appeal from that judgment.” United States v. Real
Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1141 (9th
Cir. 2008) (quoting Baldwin v. Redwood City, 540 F.2d 1360, 1364 (9th Cir.
1976)).
On the merits, the district court did not abuse its discretion when it denied
Nathan’s motion for default. The district court docket confirms that the clerk did
not act on the request for entry of default until after Nuance’s motion to dismiss
Nathan’s complaint had been filed. Nuance’s motion to dismiss Nathan’s
complaint meant the defendants had not failed to file and serve a responsive
pleading before the request for default was acted upon. Thus, the district court did
not abuse its discretion by denying Nathan’s motion for entry of default.
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Nathan did not challenge before the district court, nor does he challenge
here, the substance of the district court’s ruling granting Nuance’s motion to
dismiss his complaint,. Accordingly, we affirm the district court’s dismissal of
Nathan’s complaint. See G-K Properties v. Redevelopment Agency of City of San
Jose, 577 F.2d 645, 648–49 (9th Cir. 1978). The district court’s entry of judgment
for the defendants is
AFFIRMED.
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