NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL TERRY MAXWELL, No. 19-16258

Plaintiff-Appellant, D.C. No. 5:18-cv-06121-NC

v.

MEMORANDUM*

ROY KAYLOR,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Nathanael M. Cousins, Magistrate Judge, Presiding**

Submitted June 21, 2021***

Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.

Michael Terry Maxwell appeals pro se from the district court’s judgment

dismissing for lack of subject matter jurisdiction his action alleging state law

claims arising out of a dispute regarding an interest in real property in California.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Naffe v. Frey,

789 F.3d 1030, 1035 (9th Cir. 2015). We reverse and remand.

The district court dismissed Maxwell’s action because it determined that

Maxwell failed to establish the amount in controversy required for diversity

jurisdiction. However, the district court applied an incorrect standard to evaluate

the amount in controversy. See 28 U.S.C. § 1332(a); Naffe, 789 F.3d at 1039-40

(setting forth elements of diversity jurisdiction and explaining that the “legal

certainty” test requires a “district court [to] accept the amount in controversy

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

worth less”); Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599

F.3d 1102, 1106 (9th Cir. 2010) (under the legal certainty test, “a federal court has

subject matter jurisdiction unless upon the face of the complaint, it is obvious that

the suit cannot involve the necessary amount” (citation and internal quotation

marks omitted)). We reverse the judgment, and remand for the district court to

reevaluate the amount in controversy under the correct legal standard.

After this appeal was filed, the parties entered into a release agreement in a

separate state court case between the parties relating to the subject real property.

See Docket Entry No. 53. Kaylor argues that this release agreement has settled all

claims in this action. The district court did not have the benefit of this release

agreement when dismissing the case. On remand, the district court should consider

2 19-16258 in the first instance the effect of the release agreement on Maxwell’s claims in this

action.

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Kaylor’s motion to take judicial notice (Docket Entry No. 53) is granted.

All other pending motions are denied as unnecessary.

REVERSED and REMANDED.

3 19-16258