Opinion
No. 12-56066 D.C. No. 3:11-md-02245-BEN-BLM
03-03-2014
In re: CARDTRONICS ATM FEE NOTICE LITIGATION, SHERYL JOHNSON, Plaintiff - Appellant, v. CARDTRONICS USA, INC.; et al., Defendants - Appellees.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted February 10, 2014
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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Pasadena, California
Before: D.W. NELSON, PAEZ, and NGUYEN, Circuit Judges.
Plaintiff Sheryl Johnson appeals the district court order granting Defendants' motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291. "We review orders granting summary judgment de novo." Clevo Co. v. Hecny Transp., Inc., 715 F.3d 1189, 1193 (9th Cir. 2013) (citation omitted). We affirm.
1. With respect to the Germantown ATM, the bona fide error defense applies. Defendants have demonstrated that the "violation was not intentional" and instead "resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." See 15 U.S.C. § 1693m(c). The undisputed record evidence shows that Defendants have implemented a multi-layered, redundant process to affix a Network Decal - using a strong epoxy - to each ATM that Defendants install. Likewise, the undisputed record evidence demonstrates that Defendants had a protocol in place to affix a Decal to ATMs acquired after installation, such as the Germantown ATM. Indeed, a 2012 audit revealed that over 99% of Defendants' ATMs had Decals. Defendants also have adduced unrebutted record evidence that they have a business incentive to affix the Decals, and that the missing Decal therefore was inadvertent.
2. With respect to the Memphis and Olive Branch ATMs, the safe harbor defense applies. The undisputed facts show that Defendants affixed a Network Decal to both the Memphis and Olive Branch ATMs using a strong epoxy, such that the Decal would not become detached from either ATM without human intervention. Defendants have no record of removing (or instructing a vendor to remove) the Decal from the Memphis ATM or the Olive Branch ATM. These undisputed facts are sufficient to show that a third party "subsequently removed" the Decal such that the safe harbor defense applies. See 15 U.S.C. § 1693h(d).
AFFIRMED.