NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN SCOTT BJORNSON, No. 20-36130
Plaintiff-Appellant, D.C. No. 3:20-cv-05449-RJB
v.
MEMORANDUM*
USAA CREDIT CARD,
Defendant-Appellee,
and
EQUIFAX INC.; et al.,
Defendants.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Kevin Scott Bjornson appeals pro se from the district court’s judgment
*
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).
dismissing his action alleging claims under 15 U.S.C. § 1681s-2(b) of the Fair
Credit Reporting Act (“FCRA”) and other federal statutes. We have jurisdiction
under 28 U.S.C. § 1291. We review for abuse of discretion the denial of leave to
amend and de novo the question of futility of amendment. Albino v. Baca, 747
F.3d 1162, 1168 (9th Cir. 2014). We affirm in part, reverse in part, and remand.
In his opening brief, Bjornson fails to address the grounds for dismissal of
his claims aside from his FCRA claim and has therefore waived his challenge to
the district court’s judgment with respect to those claims. See Indep. Towers of
Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider
any claims that were not actually argued in appellant’s opening brief.”); Acosta
Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not supported by
argument on a pro se appellant’s opening brief are waived).
The district court denied Bjornson leave to amend. However, with respect to
Bjornson’s FCRA claim, Bjornson appears to have cured the defects the district
court found in his previous complaint and stated the elements of a FCRA claim.
See 15 U.S.C. § 1681s-2(b)(1) (stating entities that furnish “information to
consumer reporting agencies” have an obligation to investigate when informed by
a consumer reporting agency of credit disputes); Akhtar v. Mesa, 698 F.3d 1202,
1212 (9th Cir. 2012) (“[W]e have an obligation where the petitioner is pro se,
particularly in civil rights cases, to construe the pleadings liberally and to afford
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the petitioner the benefit of any doubt.”). Moreover, the district court did not
examine whether the proposed amendment implicated an undue delay, bad faith on
Bjornson’s part, or prejudice to defendants. See Leadsinger, Inc. v. BMG Music
Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (establishing factors to consider in
denial of leave to amend). We reverse the district court’s denial of Bjornson’s
motion to amend his complaint with respect to his FCRA claim. On remand, the
district court will file Bjornson’s proposed amended complaint and proceed on the
FCRA claim only.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
The parties will bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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