Nadia Naffe, an individual v. John Patrick Frey, an individual; COUNTY OF LOS ANGELES, a municipal entity

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

-- 1 of 21 --

NAFFE V. FREY 2
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 Frey was 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.

-- 2 of 21 --

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 Defendant-
Appellee John Patrick Frey.
Paul B. Beach (argued) and John W. Nam, Lawrence Beach
Allen & Choi, PC, Glendale, California, for Defendant-
Appellee 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

-- 3 of 21 --

NAFFE V. FREY 4
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

-- 4 of 21 --

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 politico who 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.”

-- 5 of 21 --

NAFFE V. FREY 6
Frey also posted to his blog over 200 pages of a
deposition transcript from an unrelated lawsuit between Naffe
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

-- 6 of 21 --

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.

-- 7 of 21 --

NAFFE V. FREY 8
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

-- 8 of 21 --

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

-- 9 of 21 --

NAFFE V. FREY 10
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,

-- 10 of 21 --

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

-- 11 of 21 --

NAFFE V. FREY 12
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.

-- 12 of 21 --

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-faqs-
about-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.

-- 13 of 21 --

NAFFE V. FREY 14
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

-- 14 of 21 --

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
community who 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)).

-- 15 of 21 --

NAFFE V. FREY 16
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.

-- 16 of 21 --

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).

-- 17 of 21 --

NAFFE V. FREY 18
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. Only three
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

-- 18 of 21 --

NAFFE V. FREY 19
warrant a more thorough inquiry into the facts underpinning
jurisdiction than the legal certainty test 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

-- 19 of 21 --

NAFFE V. FREY 20
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
satisfy the amount in controversy requirement, 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

-- 20 of 21 --

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.

-- 21 of 21 --