                                                                           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                           NOT FOR PUBLICATION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.




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