United States v. 2020-03-09 | 19-35372 | OLEG BORISOV V. ALAMO RENT ACAR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OLEG ANATOLYEVICH BORISOV,

Plaintiff-Appellant,

v.

ALAMO RENT A CAR; et al.,

Defendants-Appellees.

No. 19-35372

D.C. No. 3:18-cv-05847-BHS

MEMORANDUM
*

Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding

Submitted March 3, 2020
**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Oleg Anatolyevich Borisov appeals pro se from the district court’s judgment
dismissing his action alleging claims under the Fair Credit Billing Act (“FCBA”),
15 U.S.C. §§ 1666-1666j, and state law arising out of a dispute over rental car fee
charges to his credit card. We have jurisdiction under 28 U.S.C. § 1291. We

*
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).
FILED

MAR 9 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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review de novo a district court’s dismissal under Federal Rule of Civil Procedure
12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th
Cir. 2011). We affirm.
The district court properly dismissed Borisov’s FCBA claim against the
Chase defendants because Borisov failed to allege facts sufficient to demonstrate
that the Chase defendants did not comply with the FCBA’s procedural
requirements. See Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 880 (9th Cir.
2011) (explaining that if a credit card holder timely disputes a charge in writing,
the FCBA “requires a credit-card issuer to acknowledge the dispute within thirty
days, investigate the matter, and provide a written explanation of its decision
within ninety days.” (citing 15 U.S.C. § 1666(a))); see also 15 U.S.C.
§ 1666(a)(3)(B)(ii) (under the FCBA, a credit-card issuer must send “a written
explanation or clarification” to the credit card holder “setting forth to the extent
applicable the reasons why [it] believes the account of the [holder] was correctly
shown in the statement”).
The district court properly dismissed Borisov’s claim against the Chase
defendants under Washington’s Consumer Protection Act (“CPA”) because
Borisov failed to allege facts sufficient to demonstrate that the Chase defendants
engaged in an “unfair or deceptive act.” Hangman Ridge Training Stables, Inc. v.
Safeco Title Ins. Co., 105 Wash. 2d 778, 784 (1986) (en banc) (setting forth the

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elements of a CPA claim); see also Panag v. Farmers Ins. Co. of Wash., 166
Wash. 2d 27, 47 (2009) (en banc) (explaining that an act is unfair or deceptive
under the CPA if it “had the capacity to deceive a substantial portion of the
public”).
The district court properly concluded that it had removal jurisdiction over
Borisov’s action because the Chase defendants’ “receipt” of the second
amendment complaint was sufficient to trigger removal under 28 U.S.C.
§ 1446(b)(1). 28 U.S.C. § 1446(b)(1) (“The notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading . . . .” (emphasis added));
Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 (9th Cir. 1988) (standard of
review).
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).
Borisov’s request for sanctions is denied.
AFFIRMED.