FILED
NOT FOR PUBLICATION JUL 3 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICK MAKREAS, No. 12-16233
Plaintiff - Appellant, D.C. No. 3:11-cv-02406-MMC
v.
MEMORANDUM*
THE MOORE LAW GROUP, A.P.C., a
California corporation; CITIBANK
(SOUTH DATOKA), N.A., a business
entity, form unknown,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
Nick Makreas appeals pro se from the district court’s judgment dismissing
his action alleging, among other things, violations of the Fair Credit Reporting Act
*
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).
(“FCRA”) and California state law. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029 (9th
Cir. 2009). We may affirm on any basis supported by the record, Corrie v.
Caterpillar, Inc., 503 F.3d 974, 979 (9th Cir. 2007), and we affirm.
The district court properly dismissed Makreas’s FCRA claim because
Makreas failed to allege facts sufficient to show that defendants accessed his credit
report without a permissible purpose, or that there was a bona fide dispute
regarding the debt. See Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 674-76 (9th
Cir. 2010) (discussing the two requirements for establishing permissible purpose
under 15 U.S.C. § 1681b(a)(3)(A)); Gorman v. Wolpoff & Abramson, LLP, 584
F.3d 1147, 1163 (9th Cir. 2009) (under 15 U.S.C. § 1681s-2(b), a furnisher can
only be liable by failing to report a bona fide dispute – that is, “a dispute that could
materially alter how the reported debt is understood”). Moreover, to the extent that
the claim is based on violation of 15 U.S.C. § 1681s-2(a), there is no private right
of action. See Gorman, 584 F.3d at 1154, 1162.
The district court properly dismissed Makreas’s claim under California’s
Rosenthal Fair Debt Collection Practices Act against defendant Citibank because
Makreas failed to alleged facts sufficient to show that Citibank itself engaged in
debt collection activities, or that the Moore Law Group acted as Citibank’s agent
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when it engaged in debt collection activities, thereby making Citibank vicariously
liable for its acts. See Cal. Civ. Code §§ 1788.1(b), 1788.2(c) (explaining that
purpose of Act is “to prohibit debt collectors from engaging in unfair or deceptive
acts or practices in the collection of consumer debts” and defining “debt
collector”); Fenton v. Freedman, 748 F.2d 1358, 1361-62 (9th Cir. 1984) (listing
requirements for establishing agency under California law); see also Clark v.
Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1173 (9th Cir. 2006)
(addressing vicarious liability under federal Fair Debt Collection Practices Act).
The district court properly dismissed Makreas’s unfair competition claim
because Makreas failed to allege facts sufficient to show that he sought injunctive
relief, or that defendants obtained money or property from him as a result of their
alleged misconduct, warranting restitution. See Korea Supply Co. v. Lockhead
Martin Corp., 63 P.3d 937, 943-45 (Cal. 2003) (explaining that under California’s
Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, relief is generally
limited to injunctive relief and restitution, and defining restitution); see also Los
Angeles v. Lyons, 461 U.S. 95, 111 (1983) (injunctive relief is “unavailable absent
a showing of irreparable injury, a requirement that cannot be met where there is no
showing of any real or immediate threat that the plaintiff will be wronged again”).
The district court did not abuse its discretion by denying leave to amend.
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See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir.
2011) (setting forth standard of review and explaining that leave to amend may be
denied if amendment would be futile); Chodos v. W. Publ’g Co., 292 F.3d 992,
1003 (9th Cir. 2002) (setting forth the standard of review and requirements for
leave to amend, and noting that a district court’s discretion is particularly broad
where it has already granted leave to amend).
The district court did not abuse its discretion by declining to enter default
judgment against the Moore Law Group. See Direct Mail Specialists, Inc. v. Eclat
Computerized Techs., Inc., 840 F.2d 685, 689 (9th Cir. 1988) (Fed. R. Civ. P.
55(b)(1) applies only to parties who have never appeared in the action); Eitel v.
McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (setting forth the standard of review
and discussing the process for obtaining default judgment).
We reject Makreas’s contentions that the district court erred by allegedly
disregarding defendants’ “continued willful and negligent violations of the
FCRA,” and that the district court should have permitted discovery.
We do not consider issues not specifically and distinctly raised in the
opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per
curiam).
AFFIRMED.
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