Shuthima Pongsai v. American Express Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHUTHIMA PONGSAI,
Plaintiff-Appellant,
v.
AMERICAN EXPRESS COMPANY,
Defendant-Appellee,
and
EQUIFAX INFORMATION SERVICES
LLC; EXPERIAN INFORMATION
SOLUTIONS, INC.; TRANS UNION LLC,
Defendants.
No. 21-55652
D.C. No.
8:19-cv-01628-DOC-JDE
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted June 8, 2022
Pasadena, California
Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.
Following a jury verdict for Defendants, Plaintiff Shuthima Pongsai timely
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUN 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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appeals. She requests a new trial, challenging several evidentiary rulings,
including a ruling related to the district court’s final pretrial order. We review the
district court’s evidentiary rulings for an abuse of discretion. Wagner v. County of
Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2013). We consider whether the court’s
rulings, including any ruling related to the final pretrial order, prejudiced Pongsai.1
Id. (discussing evidentiary rulings); see also United States v. First Nat’l Bank of
Circle, 652 F.2d 882, 887 (9th Cir. 1981) (discussing modification of a pretrial
order). We affirm because Pongsai has failed to establish prejudice.
Pongsai claims that the final pretrial order indicated that certain exhibits
would be admitted at trial. She argues that she was prejudiced by the district
court’s rulings related to the pretrial order and excluding those exhibits because
she was unprepared to offer other evidence in support of the verification element of
her Fair Credit Reporting Act claim. See Gorman v. Wolpoff & Abramson, LLP,
584 F.3d 1147, 1153–55 (9th Cir. 2009) (discussing the duties the Fair Credit
Reporting Act imposes on sources that provide credit information).
Even if the district court’s challenged rulings were an abuse of discretion,
which we do not decide, any potential error did not prejudice Pongsai to the degree
necessary to warrant reversal. See United States v. 4.85 Acres of Land, 546 F.3d
1 Consequently, we need not address American Express’s argument that
Pongsai waived her arguments by raising them for the first time on appeal. See
Jovanovich v. United States, 813 F.2d 1035, 1037 (9th Cir. 1987).

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613, 617 (9th Cir. 2008) (“To reverse a jury verdict for evidentiary error, we must
find that the trial court abused its discretion in a manner that prejudiced the
appealing party.”); cf. First Nat’l Bank of Circle, 652 F.2d at 887 (stating that
when the district court “departs substantially from the order to the prejudice of a
party without exercise of its discretion informed by consideration of the relevant
factors, the judgment must be reversed”).
Pongsai asserts that the jury’s inquiry about the relevant exhibits shows that
the district court’s rulings were prejudicial. We are not persuaded by this
argument because the substance of these exhibits was before the jury pursuant to
the parties’ stipulation. Additionally, in response to the jury’s question, the district
court reminded the jury that, while the exhibits at issue were not in evidence, one
of Pongsai’s witnesses had testified “about these documents based on her
impressions of these documents.” Moreover, in the final pretrial order, Pongsai did
not specifically identify the exhibits at issue as support for the verification element.
Further, the record reflects that, in addition to the stipulation regarding the
challenged exhibits, Pongsai presented other evidence to support the verification
element of her claim.
Pongsai further argues that the district court’s rulings were prejudicial
because the Fair Credit Reporting Act’s “verification element was not identified as
an issue for the jury to decide in the Parties’ Amended [Final Pretrial Order].” The

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record, however, indicates that Pongsai was aware that American Express’s
investigation of her claim was at issue, and Pongsai’s briefing on the
reasonableness of the investigation focuses on American Express’s verification of
the fraudulent debt. In short, the district court’s rulings did not prejudice Pongsai.
AFFIRMED.

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