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


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  •                            NOT FOR PUBLICATION                           FILED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,
    2                                    15-35226
    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
    3                                    15-35226
    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.
    4                                   15-35226