David Scott v. MacY's
693 F. App'x 592
9th Cir.2017Background
- David I. Scott, proceeding pro se, appealed dismissal of a diversity suit concerning disputes over his credit card account and related claims.
- The district court dismissed Scott’s claims under the Fair Credit Reporting Act (FCRA), the Fair Credit Billing Act (FCBA) § 1666(a), and negligent infliction of emotional distress, and denied leave to amend.
- The Ninth Circuit reviewed the 12(b)(6) dismissal de novo and considered whether amendment would be futile.
- The panel affirmed dismissal of the FCRA claims and the negligent infliction claim, and upheld denial of leave to amend those causes of action as futile.
- The panel vacated the dismissal without leave to amend as to Scott’s FCBA § 1666(a) claim and remanded so Scott may be given an opportunity to amend regarding billing-cycle allegations.
- The Ninth Circuit did not consider issues not raised in the opening brief and ordered the parties to bear their own costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Scott may bring a private claim under 15 U.S.C. § 1681s-2(a) or under duties in § 1681s-2(b) | Scott alleged furnisher violated FCRA duties and sought relief | Defendant argued § 1681s-2(a) creates no private right; § 1681s-2(b) duties arise only after CRA notice, which Scott did not allege | Dismissed: no private right under § 1681s-2(a); Scott failed to allege CRA notice required for § 1681s-2(b) relief |
| Negligent infliction of emotional distress under Washington law | Scott claimed emotional distress from defendant’s conduct related to account | Defendant argued Scott failed to plead required elements under Washington law | Dismissed: allegations insufficient to state a plausible negligent-infliction claim |
| Denial of leave to amend FCRA and negligent infliction claims | Scott sought to amend; argued defects could be cured | Defendant argued amendment would be futile | Affirmed: district court did not abuse discretion; amendment would have been futile |
| Dismissal without leave to amend FCBA claim (15 U.S.C. § 1666(a)) | Scott alleged billing-cycle details (argued in reconsideration) that could support a § 1666(a) notice-of-billing-error claim | Defendant maintained claim was deficient and dismissal proper | Vacated and remanded: dismissal without leave was premature; Scott given opportunity to amend on § 1666(a) only |
Key Cases Cited
- Hebbe v. Pliler, 627 F.3d 338 (9th Cir.) (standard for de novo review of 12(b)(6) dismissal)
- Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147 (9th Cir.) (§ 1681s-2(a) creates no private right; § 1681s-2(b) duties require CRA notice)
- Haubry v. Snow, 31 P.3d 1186 (Wash. 2001) (elements for negligent infliction of emotional distress under Washington law)
- Gardner v. Martino, 563 F.3d 981 (9th Cir.) (denial of leave to amend appropriate when amendment would be futile)
- Far W. Fed. Bank v. Office of Thrift Supervision-Dir., 119 F.3d 1358 (9th Cir.) (frustration of purpose is an excuse for non-performance, not a breach cause of action)
- Am. Exp. Co. v. Koerner, 452 U.S. 233 (U.S.) (creditor must investigate billing-error notice within statutory timeframe under § 1666(a))
- Lucas v. Dep’t of Corr., 66 F.3d 245 (9th Cir.) (pro se litigant entitled to notice and opportunity to amend unless amendment cannot cure defects)
- Lopez v. Smith, 203 F.3d 1122 (9th Cir. en banc) (standard for liberally construing pro se pleadings and leave to amend)
- Padgett v. Wright, 587 F.3d 983 (9th Cir.) (issues not raised in opening brief generally not considered on appeal)