David Scott v. MacY's , 693 F. App'x 592 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID I. SCOTT, No. 15-35226
Plaintiff-Appellant, D.C. No. 1:14-cv-03141-TOR
v.
MEMORANDUM*
MACY’S, AKA DSNB Macy’s Inc.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
David I. Scott appeals pro se from the district court’s judgment dismissing
his diversity action alleging claims related to his credit card account. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
F.3d 338, 341 (9th Cir. 2010). We affirm in part, vacate in part, and remand.
The district court properly dismissed Scott’s claims under the Fair Credit
Reporting Act (“FCRA”) because Scott cannot bring a private action under 15
U.S.C. § 1681s-2(a) and Scott failed to allege facts sufficient to show that he
notified a consumer reporting agency about the dispute under § 1681s-2(b). See
Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir. 2009) (under
the FCRA, 15 U.S.C. § 1681s-2(a) does not create a private right of action and the
duties under § 1681s-2(b) arise only after the furnisher of financial information
receives notice of the consumer’s dispute from a credit reporting agency).
The district court properly dismissed Scott’s negligent infliction of
emotional distress claim because Scott failed to allege facts sufficient to state a
plausible claim. See Haubry v. Snow, 31 P.3d 1186, 1193 (Wash. 2001) (setting
forth elements of claim for negligent infliction of emotional distress under
Washington law).
The district court did not abuse its discretion by denying leave to amend as
to Scott’s FCRA and negligent infliction of emotional distress claims, or denying
Scott’s requests for leave to file his proposed amended complaints because
amendment would have been futile. See Gardner v. Martino, 563 F.3d 981, 990,
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992 (9th Cir. 2009) (denial of leave to amend is appropriate where amendment
would be futile); see also Far W. Fed. Bank, S.B. v. Office of Thrift Supervision-
Dir., 119 F.3d 1358, 1364 (9th Cir. 1997) (frustration of purpose is an excuse for
non-performance, not a cause of action for breach of contract).
The district court dismissed without leave to amend Scott’s Fair Credit
Billing Act claim under 15 U.S.C. § 1666(a). However, dismissal without leave to
amend was premature because it is not absolutely clear that the deficiencies could
not be cured by amendment. See Am. Exp. Co. v. Koerner, 452 U.S. 233, 237
(1981) (under § 1666(a) once a creditor receives a notice of billing error, it must
investigate the matter within 90 days or two complete billing cycles, whichever is
shorter); see also Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995)
(“Unless it is absolutely clear that no amendment can cure the defect, . . . a pro se
litigant is entitled to notice of the complaint’s deficiencies and an opportunity to
amend prior to dismissal of the action.”); Lopez v. Smith, 203 F.3d 1122, 1130 (9th
Cir. 2000) (en banc) (setting forth standard of review). Specifically, Scott raised
details about his billing cycles in his motion for reconsideration. Although Scott
did not allege the billing cycle information in his proposed amended complaint
filed with his motion for reconsideration, he should be given an opportunity to
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amend prior to dismissal of this claim. We vacate the judgment in part and remand
to allow Scott an opportunity to file an amended complaint as to his 15 U.S.C. §
1666(a) claim only.
We do not consider issues not specifically and distinctly raised and argued in
the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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