ON REHEARING

                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-2296


SABRINA D. DAVIS,

                Plaintiff - Appellant,

          v.

KIA MOTORS AMERICA, INCORPORATED,

                Defendant – Appellee,

          and

KIA MOTORS OF AMERICA,

                Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.      R. Bryan Harwell, District
Judge. (6:08-cv-01937-RBH)


Submitted:   January 12, 2011               Decided:   January 21, 2011


Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sabrina D. Davis, Appellant Pro Se. David Christopher Marshall,
Curtis L. Ott, TURNER, PADGET, GRAHAM & LANEY, PA, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Sabrina D. Davis appeals a decision of the district

court dismissing her action against Kia Motors America, Inc.

(“KMA”) for lack of jurisdiction.           We affirm. *

              Davis’s action proceeded under diversity jurisdiction,

28 U.S.C. § 1332 (2006).            The district court dismissed Davis’s

action for lack of jurisdiction, concluding that, “to a legal

certainty,” Davis could not recover damages in excess of the

$75,000      jurisdictional    amount    applicable    in    diversity      cases

under 28 U.S.C. § 1332(a).

              We review de novo an order dismissing a complaint for

lack of subject matter jurisdiction.             JTH Tax, Inc. v. Frashier,

, 637 (4th Cir. 2010).              “In most [diversity] cases,

the   ‘sum    claimed   by    the   plaintiff    controls’        the   amount   in

controversy      determination.”        

   Paul    Mercury

Indem. Co. v. Red Cab Co., 

, 288 (1938)).                     However,


      *
       In a prior opinion we dismissed Davis’s appeal for lack of
jurisdiction on the ground that her notice of appeal was
untimely.   Davis v. Kia Motors America, Inc., 370 F. App’x 408
(4th Cir.) (No. 09-2296), cert. denied, 

(2010).
However, because no separate entry of judgment was filed in the
district court, judgment was not entered until January 15, 2010,
and Davis’s notice of appeal was timely.        Fed. R. App. P.
4(a)(2), (7).   Under these extraordinary circumstances, we have
exercised our inherent authority to sua sponte grant rehearing
and recall the mandate in this appeal.           See Calderon v.
Thompson, 

, 549-50 (1998).     We vacate our original
opinion, and replace it with this opinion.



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even if the plaintiff seeks damages sufficient to satisfy the

statutory amount, a court can dismiss the action when, “from the

proofs, the court is satisfied to a [legal] certainty that the

plaintiff never was entitled to recover that amount.”            St. Paul

.

           Here, the district court concluded that, “to a legal

certainty,” Davis could not recover the jurisdictional amount,

based on the warranty under which Davis sought relief.           We agree

with the district court’s conclusion.           Accordingly, we affirm

the   decision   of   the   district   court.   We   dispense   with   oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                 AFFIRMED




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