                           NOT FOR PUBLICATION                           FILED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.




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