Sheryl Johnson v. Cardtronics USA, Inc.

FILED
NOT FOR PUBLICATION MAR 03 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: CARDTRONICS ATM FEE No. 12-56066
NOTICE LITIGATION,
D.C. No. 3:11-md-02245-BEN-
BLM
SHERYL JOHNSON,

Plaintiff - Appellant, MEMORANDUM*

v.

CARDTRONICS USA, INC.; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding

Submitted February 10, 2014**
Pasadena, California

Before: D.W. NELSON, PAEZ, and NGUYEN, Circuit Judges.

*
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).
 Plaintiff Sheryl Johnson appeals the district court order granting Defendants’

motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. §

1291. “We review orders granting summary judgment de novo.” Clevo Co. v.

Hecny Transp., Inc., 715 F.3d 1189, 1193 (9th Cir. 2013) (citation omitted). We

affirm.

1. With respect to the Germantown ATM, the bona fide error defense

applies. Defendants have demonstrated that the “violation was not intentional” and

instead “resulted from a bona fide error notwithstanding the maintenance of

procedures reasonably adapted to avoid any such error.” See 15 U.S.C. §

1693m(c). The undisputed record evidence shows that Defendants have

implemented a multi-layered, redundant process to affix a Network Decal – using a

strong epoxy – to each ATM that Defendants install. Likewise, the undisputed

record evidence demonstrates that Defendants had a protocol in place to affix a

Decal to ATMs acquired after installation, such as the Germantown ATM. Indeed,

a 2012 audit revealed that over 99% of Defendants’ ATMs had Decals.

Defendants also have adduced unrebutted record evidence that they have a

business incentive to affix the Decals, and that the missing Decal therefore was

inadvertent.

2. With respect to the Memphis and Olive Branch ATMs, the safe harbor

defense applies. The undisputed facts show that Defendants affixed a Network
Decal to both the Memphis and Olive Branch ATMs using a strong epoxy, such

that the Decal would not become detached from either ATM without human

intervention. Defendants have no record of removing (or instructing a vendor to

remove) the Decal from the Memphis ATM or the Olive Branch ATM. These

undisputed facts are sufficient to show that a third party “subsequently removed”

the Decal such that the safe harbor defense applies. See 15 U.S.C. § 1693h(d).

AFFIRMED.