FILED
NOT FOR PUBLICATION
MAY 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA B. SHAPIRO, No. 13-35965
Plaintiff - Appellant, D.C. No. 3:12-cv-05237-RBL
v.
MEMORANDUM*
AMERICA’S CREDIT UNION, a Federal
Credit Union (JBLM), and REBECCA
CADDIGAN,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted May 4, 2016**
Seattle, Washington
Before: GRABER and MURGUIA, Circuit Judges, and BURY,*** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable David C. Bury, Senior United States District Judge for
the District of Arizona, sitting by designation.
Plaintiff Joshua Shapiro timely appeals the judgment in favor of Defendants
America’s Credit Union ("ACU") and Rebecca Caddigan. Reviewing for abuse of
discretion the decision to convert a motion to dismiss to a motion for summary
judgment, Hamilton Materials Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th
Cir. 2007), and de novo the summary judgment, Johnson v. Poway Unified Sch.
Dist., 658 F.3d 954, 960 (9th Cir. 2011), we affirm.
1. Under Rule 12(d), "[i]f, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ.
P. 12(d). The parties "must be given a reasonable opportunity to present all the
material that is pertinent to the motion." Id. Here, the court relied on the
Membership and Account Agreement, declarations of ACU employees, a letter that
Shapiro sent, and Shapiro’s own declaration. Shapiro had ample opportunity to
present material relevant to the motion. The motion was filed a year and half after
the commencement of the action. Shapiro submitted four separate declarations and
his own motion for summary judgment. Accordingly, the district court did not
2
abuse its discretion when it considered ACU’s motion as a motion for summary
judgment.1
2. Shapiro has alleged several violations of the Electronic Fund Transfer
Act ("EFTA"). The EFTA requires that financial institutions provide their
customers an error resolution notice at least once year or within each periodic
statement. 15 U.S.C. § 1693f; 12 C.F.R. § 205.8(b). Here, ACU provided this
notice in its Membership and Account Agreement and in each account statement
sent to Shapiro. The EFTA requires that ACU disclose its "funds available" policy.
12 C.F.R. § 229.15. The Membership and Account Agreement expressly describes
this policy. Shapiro agreed to the terms of the Membership Agreement by signing
a card and by electronically agreeing to the terms. The EFTA requires that, when a
consumer communicates to a financial institution "reasons for the consumer’s
belief" that an error has occurred and the amount of the error, the financial
institution must correct the identified error or explain why an error did not occur.
15 U.S.C. § 1693f. But, here, Shapiro never communicated to ACU the amount of
the alleged error in his account or any reasons why he believed there was an error.
1
By contrast, in resolving Defendant Caddigan’s motion to dismiss, the
district court did not rely on any matter outside the pleading. Dismissal under Rule
12(b)(6) was proper.
3
Accordingly, the district court correctly entered judgment for ACU on the EFTA
claims.
3. The Federal Credit Union Act permits expulsion of credit union members
in either of two ways: (1) by two-thirds vote of credit union members, after an
opportunity to be heard; or (2) by a vote of the credit union’s board of directors.
12 U.S.C. § 1764. Shapiro claims that ACU failed to follow these requirements.
But there is no evidence that ACU terminated Shapiro’s credit union membership
even though it closed his account. Therefore, as a matter of law, Shapiro cannot
make a claim under the Federal Credit Union Act.
4. Shapiro has alleged fraud, negligent misrepresentation, negligence,
breach of contract, conversion, and unjust enrichment. But he has not pleaded any
facts to support these allegations. Accordingly, we affirm the judgment for ACU
on the common law claims.
AFFIRMED.
4