Peggy Pruchnicki v. Envision Healthcare Corp.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 2021
• Docket: 20-15460
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 21 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEGGY PRUCHNICKI, No. 20-15460

Plaintiff-Appellant, D.C. No. 2:19-cv-01193-JCM-BNW v.

ENVISION HEALTHCARE MEMORANDUM* CORPORATION, DBA Envision Healthcare; EMCARE, INC.; SHERIDAN HEALTHCORP, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted April 14, 2021** San Francisco, California

Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.

* 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). Appellant Peggy Pruchnicki (Pruchnicki) appeals the district court’s

dismissal of her claims against Appellees Envision Healthcare Corporation,

Emcare, Inc., and Sheridan Healthcorp, Inc. (collectively, Envision). Specifically,

she challenges the district court’s determination that she failed to adequately allege

damages stemming from a data breach of Envision by third parties. Pruchnicki

also contends that the district court should have granted leave to amend her

complaint.

Pruchnicki alleged four categories of injury as a result of the breach: (1) lost

time spent reviewing consumer credit reports, obtaining new credit cards, checking

financial accounts, and answering an increased number of “spam” calls; (2)

emotional distress, including “stress, nuisance, and annoyance” from dealing with

the effects of the breach, “worry, anxiety, and hesitation” when applying for new

credit cards, and concern that “damage to her creditworthiness could impact her

ability to obtain credit for her business”; (3) “imminent and certainly impending

injury flowing from potential fraud and identity theft”; and (4) “diminution in

value of [her] personal and financial information.”

Pruchnicki’s second amended complaint asserted claims for negligence,

breach of implied contract, negligent misrepresentation, and violation of Nevada

Revised Statutes § 41.600 (deceptive practices). The district court dismissed all

2 claims with prejudice. The district court found that although Pruchnicki

sufficiently alleged injury for standing purposes, her asserted injuries did not state

a claim for compensable damages. The district court did not address Pruchnicki’s

request for leave to amend.

1. Reviewing de novo, we affirm the dismissal. See Sonner v. Premier

Nutrition Corp., 971 F.3d 834, 839 (9th Cir. 2020) (reviewing dismissal order de

novo). Although Pruchnicki alleged sufficient injury-in-fact to support standing,

whether the allegations adequately alleged compensable damages is a different

question. See Doe v. Chao, 540 U.S. 614, 624–25 (2004). Pruchnicki cites no

authority recognizing lost time as a cognizable injury for the purpose of

establishing compensable damages. And several district courts in this Circuit have

declined to recognize such damages unless accompanied by out-of-pocket

expenses. See, e.g., Huynh v. Quora, Inc., No. 5:18-cv-07597-BLF, 2020 WL

7495097, at *10 (N.D. Cal. Dec. 21, 2020) (collecting cases).

Pruchnicki’s asserted emotional distress also failed to establish compensable

damages because, under Nevada law, “in the absence of physical impact, proof of

‘serious emotional distress’ causing physical injury or illness must be presented.”

Olivero v. Lowe, 995 P.2d 1023, 1026 (Nev. 2000) (citation omitted). Pruchnicki

did not assert the existence of any physical injury or illness.

3 Pruchnicki submits that she adequately alleged diminution of the value of

her personal information. We disagree. Although the studies cited by Pruchnicki

establish that personal information may have value in general, Pruchnicki failed to

adequately allege that her personal information actually lost value. Several courts

in this Circuit have found, and we agree, that the “mere misappropriation of

personal information” does not establish compensable damages. See, e.g., In re

Google, Inc. Privacy Pol’y Litig., No. 5:12-cv-001382-PSG, 2015 WL 4317479, at

*5 n.63 (N.D. Cal. July 15, 2015). Pruchnicki did not assert a claim under Nevada

Revised Statutes §§ 597.770 and 597.790, so any statutory damages available

under those provisions do not affect our analysis. Importantly, Nevada law does

not permit recovery of speculative damages. Clark Cnty. Sch. Dist. v. Richardson

Constr., Inc., 168 P.3d 87, 97 (Nev. 2007).

2. The district court acted within its discretion in declining to consider

further amendment because further amendment would have been futile. See

Wochos v. Tesla, Inc., 985 F.3d 1180, 1197 (9th Cir. 2021) (applying abuse of

discretion standard to denial of leave to amend and de novo standard to futility

argument). Pruchnicki twice amended her complaint without strengthening her

damages allegations. Envision moved to dismiss twice based on Pruchnicki’s

deficient damages allegations. And both before the district court and this Court,

4 Pruchnicki failed to convincingly articulate what information she would add to

cure her deficient damages allegations.

AFFIRMED.