NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JEANNIE PALMER, No. 23-15226
Plaintiff-Appellant, D.C. No. 3:22-cv-02178-VC
and MEMORANDUM* LAWRENCE PALMER,
Plaintiff,
v.
HSBC BANK, USA, NA,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding
Submitted May 10, 2024** Pasadena, California
Before: WARDLAW, CHRISTEN, and BENNETT, Circuit Judges.
Jeannie Palmer (“Mrs. Palmer”) appeals the district court’s grant of
* 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). summary judgment in favor of HSBC Bank, USA, NA (“HSBC”) on Mrs.
Palmer’s claim against HSBC for violation of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681b. Mrs. Palmer also appeals the district court’s order
denying in part her motion to substitute as the plaintiff for her late husband
Lawrence Palmer’s (“Mr. Palmer”) class action and state law claims. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court correctly determined that Mrs. Palmer has standing to
assert the FCRA claim under 15 U.S.C. § 1681b(f)(1). To determine whether a
harm caused by a statutory violation is sufficiently concrete for Article III standing
purposes, “courts should assess whether the alleged injury to the plaintiff has a
‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a
lawsuit in American courts.” TransUnion LLC v. Ramirez, 594 U.S. 413, 424
(2021) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)). There is no
dispute that Equifax, a credit reporting agency, sent Mr. Palmer’s credit
information to HSBC at HSBC’s request. Mrs. Palmer alleges that HSBC accessed
Mr. Palmer’s information for purposes of credit profiling, data modeling,
advertising, and data sharing in violation of FCRA § 1681b(f)(1). Thus, Mrs.
Palmer sufficiently alleged a concrete injury because the acquisition of a credit
report for a purpose not authorized by the FCRA “is closely related to—if not the
same as—a harm that has traditionally been regarded as providing a basis for a
2 lawsuit: intrusion upon seclusion (one form of the tort of the invasion of privacy).”
Nayab v. Capital One Bank (USA), N.A., 942 F.3d 480, 491 (9th Cir. 2019).
2. The district court did not abuse its discretion by denying Mrs. Palmer’s
Federal Rule of Civil Procedure 56(d) request for further discovery. A party
seeking additional discovery under Rule 56(d) must show that “(1) it has set forth
in affidavit form the specific facts it hopes to elicit from further discovery; (2) the
facts sought exist; and (3) the sought after facts are essential to oppose summary
judgment.” Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (citation
omitted). Mrs. Palmer failed to meet this burden because she merely speculated
that the sought-after testimony and documents might contradict the evidence
already before the district court. See id. (“[F]or purposes of a Rule 56(d) request,
the evidence sought must be more than ‘the object of pure speculation.’”) (quoting
California v. Campbell, 138 F.3d 772, 779–80 (9th Cir. 1998)).
3. The district court properly granted summary judgment to HSBC because
the undisputed evidence established that HSBC lawfully accessed Mr. Palmer’s
information solely in order to make a firm offer of credit. See Nayab, 942 F.3d at
488 (The FCRA “allows a third-party to obtain a consumer’s credit report . . . ‘if
the transaction consists of a firm offer of credit’”) (quoting 15 U.S.C.
§ 1681b(a)(3)(A)). Here, HSBC mailed Mr. Palmer a “‘prescreened’ offer of
credit” to apply for HSBC’s Gold Mastercard. HSBC informed Mr. Palmer that
3 the offer was “based on information in your credit report indicating that you meet
certain criteria. This offer is not guaranteed if you do not meet our criteria.” Brian
Ahearn, HSBC’s corporate witness, testified that HSBC approved credit to 59
percent of applicants who responded to its offer, and would have approved credit
to Mr. Palmer as well, provided that he continued to meet the credit-related criteria
by which his information was first obtained. The FCRA explicitly allows HSBC to
condition “firm offer[s] of credit” upon “verification” that the customer “continues
to meet the specific criteria used to select the consumer for the offer.” See 15
U.S.C. § 1681a(l)(2). Thus, HSBC did not violate the FCRA by approving only 59
percent of those who responded to its offer because only 59 percent of those who
responded continued to meet the criteria used to select that potential customer for
the offer. Nor is there any evidence that HSBC accessed Mr. Palmer’s data for any
unlawful purpose.1 To the contrary, Ahearn testified that HSBC acquired Mr.
Palmer’s information for “the sole use” of offering him credit.
4. The district court did not abuse its discretion by determining that Mrs.
1 Mrs. Palmer contends that HSBC’s duplicity is evidenced by the facts that (1) HSBC accessed Mr. Palmer’s name, address, credit score, email address, phone number, and social security number; (2) HSBC stored Mr. Palmer’s information in a “data warehouse;” and (3) HSBC sent out different offers to consumers. However, Mrs. Palmer provides no evidence or authority to show that HSBC accessed any more information than necessary to determine continued eligibility for credit, that warehousing Mr. Palmer’s data violated the FCRA, or that making different offers of credit to consumers violates the FCRA. See Nelson v. Prima Cmty. College, 83 F.3d 1075, 1081–82 (9th Cir. 1996).
4 Palmer was an inadequate class representative and striking the class allegations.
The district court properly determined that Mr. Palmer’s claim for punitive
damages abated upon his death. Castillo v. Bank of America, NA, 980 F.3d 723,
729 (9th Cir. 2020) (A class representative’s claims must be “reasonably co-
extensive with those of absent class members”). Moreover, factual questions
unique to Mrs. Palmer’s case, such as whether HSBC made Mr. Palmer a firm
offer of credit, created significant obstacles to her adequacy as class representative.
See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (A
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JEANNIE PALMER, No. 23-15226
Plaintiff-Appellant, D.C. No. 3:22-cv-02178-VC
and MEMORANDUM* LAWRENCE PALMER,
Plaintiff,
v.
HSBC BANK, USA, NA,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding
Submitted May 10, 2024** Pasadena, California
Before: WARDLAW, CHRISTEN, and BENNETT, Circuit Judges.
Jeannie Palmer (“Mrs. Palmer”) appeals the district court’s grant of
* 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). summary judgment in favor of HSBC Bank, USA, NA (“HSBC”) on Mrs.
Palmer’s claim against HSBC for violation of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681b. Mrs. Palmer also appeals the district court’s order
denying in part her motion to substitute as the plaintiff for her late husband
Lawrence Palmer’s (“Mr. Palmer”) class action and state law claims. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court correctly determined that Mrs. Palmer has standing to
assert the FCRA claim under 15 U.S.C. § 1681b(f)(1). To determine whether a
harm caused by a statutory violation is sufficiently concrete for Article III standing
purposes, “courts should assess whether the alleged injury to the plaintiff has a
‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a
lawsuit in American courts.” TransUnion LLC v. Ramirez, 594 U.S. 413, 424
(2021) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)). There is no
dispute that Equifax, a credit reporting agency, sent Mr. Palmer’s credit
information to HSBC at HSBC’s request. Mrs. Palmer alleges that HSBC accessed
Mr. Palmer’s information for purposes of credit profiling, data modeling,
advertising, and data sharing in violation of FCRA § 1681b(f)(1). Thus, Mrs.
Palmer sufficiently alleged a concrete injury because the acquisition of a credit
report for a purpose not authorized by the FCRA “is closely related to—if not the
same as—a harm that has traditionally been regarded as providing a basis for a
2 lawsuit: intrusion upon seclusion (one form of the tort of the invasion of privacy).”
Nayab v. Capital One Bank (USA), N.A., 942 F.3d 480, 491 (9th Cir. 2019).
2. The district court did not abuse its discretion by denying Mrs. Palmer’s
Federal Rule of Civil Procedure 56(d) request for further discovery. A party
seeking additional discovery under Rule 56(d) must show that “(1) it has set forth
in affidavit form the specific facts it hopes to elicit from further discovery; (2) the
facts sought exist; and (3) the sought after facts are essential to oppose summary
judgment.” Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (citation
omitted). Mrs. Palmer failed to meet this burden because she merely speculated
that the sought-after testimony and documents might contradict the evidence
already before the district court. See id. (“[F]or purposes of a Rule 56(d) request,
the evidence sought must be more than ‘the object of pure speculation.’”) (quoting
California v. Campbell, 138 F.3d 772, 779–80 (9th Cir. 1998)).
3. The district court properly granted summary judgment to HSBC because
the undisputed evidence established that HSBC lawfully accessed Mr. Palmer’s
information solely in order to make a firm offer of credit. See Nayab, 942 F.3d at
488 (The FCRA “allows a third-party to obtain a consumer’s credit report . . . ‘if
the transaction consists of a firm offer of credit’”) (quoting 15 U.S.C.
§ 1681b(a)(3)(A)). Here, HSBC mailed Mr. Palmer a “‘prescreened’ offer of
credit” to apply for HSBC’s Gold Mastercard. HSBC informed Mr. Palmer that
3 the offer was “based on information in your credit report indicating that you meet
certain criteria. This offer is not guaranteed if you do not meet our criteria.” Brian
Ahearn, HSBC’s corporate witness, testified that HSBC approved credit to 59
percent of applicants who responded to its offer, and would have approved credit
to Mr. Palmer as well, provided that he continued to meet the credit-related criteria
by which his information was first obtained. The FCRA explicitly allows HSBC to
condition “firm offer[s] of credit” upon “verification” that the customer “continues
to meet the specific criteria used to select the consumer for the offer.” See 15
U.S.C. § 1681a(l)(2). Thus, HSBC did not violate the FCRA by approving only 59
percent of those who responded to its offer because only 59 percent of those who
responded continued to meet the criteria used to select that potential customer for
the offer. Nor is there any evidence that HSBC accessed Mr. Palmer’s data for any
unlawful purpose.1 To the contrary, Ahearn testified that HSBC acquired Mr.
Palmer’s information for “the sole use” of offering him credit.
4. The district court did not abuse its discretion by determining that Mrs.
1 Mrs. Palmer contends that HSBC’s duplicity is evidenced by the facts that (1) HSBC accessed Mr. Palmer’s name, address, credit score, email address, phone number, and social security number; (2) HSBC stored Mr. Palmer’s information in a “data warehouse;” and (3) HSBC sent out different offers to consumers. However, Mrs. Palmer provides no evidence or authority to show that HSBC accessed any more information than necessary to determine continued eligibility for credit, that warehousing Mr. Palmer’s data violated the FCRA, or that making different offers of credit to consumers violates the FCRA. See Nelson v. Prima Cmty. College, 83 F.3d 1075, 1081–82 (9th Cir. 1996).
4 Palmer was an inadequate class representative and striking the class allegations.
The district court properly determined that Mr. Palmer’s claim for punitive
damages abated upon his death. Castillo v. Bank of America, NA, 980 F.3d 723,
729 (9th Cir. 2020) (A class representative’s claims must be “reasonably co-
extensive with those of absent class members”). Moreover, factual questions
unique to Mrs. Palmer’s case, such as whether HSBC made Mr. Palmer a firm
offer of credit, created significant obstacles to her adequacy as class representative.
See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (A
representative’s claims are not typical of the class “if there is a danger that absent
class members will suffer if their representative is preoccupied with defenses
unique to it”) (citation and internal quotation marks omitted).
The district court’s order was not premature. The district court was not
required to wait for a motion for class certification or for additional discovery
before addressing Mrs. Palmer’s class allegations. See Vinole v. Countrywide
Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (“District courts have broad
discretion to control the class certification process, and ‘[w]hether or not discovery
will be permitted . . . lies within the sound discretion of the trial court.’”)
(alteration and omission in original) (quoting Kamm v. Cal. City Dev. Co., 509
F.2d 205, 209 (9th Cir. 1975)). Mrs. Palmer did not attempt to add a new
representative despite being advised of the court’s concerns. And because Mr.
5 Palmer had already received leave to amend his complaint on two prior occasions,
the district court was not required to permit Mrs. Palmer any additional time to add
class representatives. See Griggs v. Pace American Group, Inc., 170 F.3d 877, 879
(9th Cir. 1999).
5. Nor did the district court abuse its discretion by denying Mrs. Palmer’s
motion to substitute as to Mr. Palmer’s state law claims. Mrs. Palmer failed to
comply with California’s requirements for substitution. See Cal. Civ. Proc. Code
§§ 377.30; 377.32. Although the district court repeatedly identified the
deficiencies in her motion, Mrs. Palmer made no effort to remedy the problems.
Thus, the district court properly dismissed Mr. Palmer’s state law claims. See
Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 1093 n.2 (9th Cir. 2006)
(“[T]he decedent’s ‘successor in interest’ may prosecute the survival action if the
person purporting to act as successor in interest satisfies the requirements of
California law.”) (citing Cal. Civ. Proc. Code §§ 377.30, 377.32).
AFFIRMED.