Kamlesh Banga v. Experian Information Solutions

FILED
NOT FOR PUBLICATION MAY 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KAMLESH BANGA, No. 10-15913
Plaintiff - Appellant, D.C. No. 4:08-cv-04147-SBA
v.
MEMORANDUM *
EXPERIAN INFORMATION
SOLUTIONS, INC.; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Kamlesh Banga appeals pro se from the district court’s summary judgment
and award of costs in her action alleging that defendants Experian Information
*
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). Accordingly, Experian
Information Solutions, Inc.’s request for oral argument is denied.
Solutions, Inc. (“Experian”) and Kohl’s Department Stores, Inc. (“Kohl’s”)
violated the Fair Credit Reporting Act (the “Act”). We have jurisdiction under 28
U.S.C. § 1291. We review de novo the grant of summary judgment, Rene v. MGM
Grand Hotel, Inc., 305 F.3d 1061, 1064 (9th Cir. 2002) (en banc), and for an abuse
of discretion an award of costs to the prevailing party, Dawson v. City of Seattle,
435 F.3d 1054, 1070 (9th Cir. 2006). We affirm.
The district court properly granted summary judgment on Banga’s claims for
willful violations under § 1681n of the Act because, as she conceded to the district
court, defendants were not objectively unreasonable in accessing Banga’s credit
report for account review purposes while she closed her Kohl’s account. See
Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 69-70 & n. 20 (2007) (no willful
violation if defendant’s interpretation of “less-than-pellucid” statutory text is “not
objectively unreasonable” and there is no guidance from courts or relevant
agencies); see also Reynoso v. Giurbino, 462 F.3d 1099, 1110 (9th Cir. 2006)
(party is bound by concession to the district court notwithstanding contrary
position on appeal).
The district court properly granted summary judgment on Banga’s claims for
negligent violations under § 1681o of the Act because she failed to raise a triable
dispute as to whether defendants’ conduct resulted in actual damages. See 15
2 10-15913
U.S.C. § 1681o(a); cf. also Weinberg v. Whatcom Cnty., 241 F.3d 746, 751-52 (9th
Cir. 2001) (affirming summary judgment where plaintiff “failed to offer competent
evidence of damages” for a claim in which plaintiff “bore the burden of
establishing the amount of actual harm”).
The district court properly granted summary judgment on issue preclusion
grounds as to Banga’s claim that defendant Experian violated § 1681r of the Act
because she unsuccessfully litigated this issue in a prior lawsuit. See San Remo
Hotel, L.P. v. San Francisco City and Cnty., 364 F.3d 1088, 1094 (9th Cir. 2004)
(party cannot relitigate issues actually and necessarily decided in earlier litigation).
The district court did not abuse its discretion by awarding defendants their
costs in connection with Banga’s deposition. See Cherry v. Champion Int’l Corp.,
186 F.3d 442, 448-49 (9th Cir. 1999) (costs of transcribing and videotaping
deposition are recoverable if they are necessarily obtained for use in the case).
Banga’s remaining contentions are unpersuasive.
Banga’s motion for appointment of counsel for purposes of oral argument on
appeal is denied as moot.
AFFIRMED.
3 10-15913