Dimitriy Simonoff v. Expedia Inc.

Filing

FILED OPINION (M. MARGARET MCKEOWN, RAYMOND C. FISHER and RONALD M. GOULD) AFFIRMED. Judge: MMM Authoring,. FILED AND ENTERED JUDGMENT. [7762159]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIMITRIY SIMONOFF,
Plaintiff-Appellant,
v.
EXPEDIA, INC.,
Defendant-Appellee.



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No. 10-35595
D.C. No.
2:09-cv-01517-RSL
OPINION

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
March 8, 2011—Seattle, Washington
Filed May 24, 2011
Before: M. Margaret McKeown, Raymond C. Fisher, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge McKeown

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COUNSEL
David Oppenheim (argued), Rolling Meadows, IL; David S.
Breskin, Breskin Johnson & Townsend PLLC, Seattle, Washington, for the plaintiff-appellant.
Britton F. Davis, Wilson Sonsini Goodrich & Rosati, Seattle,
Washington; Rodney G. Strickland, Jr. (argued) and Laura
Grant, Wilson Sonsini Goodrich & Rosati, Palo Alto, California, for the defendant-appellee.

OPINION
McKEOWN, Circuit Judge:
In 2003, Congress passed the Fair and Accurate Credit
Transactions Act (“FACTA”), Pub. L. No. 108-159, 117 Stat.
1952, an amendment to the Fair Credit Reporting Act, 15
U.S.C. § 1681 et seq., in part to combat identity theft. FACTA
provides that
no person that accepts credit cards or debit cards for
the transaction of business shall print more than the
last 5 digits of the card number or the expiration date
upon any receipt provided to the cardholder at the
point of the sale or transaction.
15 U.S.C. § 1681c(g)(1). This restriction covers only “receipts
that are electronically printed, and [does] not apply to transactions in which the sole means of recording a credit card or
debit card account number is by handwriting or by an imprint
or copy of the card.” Id. § 1681c(g)(2).
Expedia, Inc. runs a website that allows users to make
travel arrangements online. Like other merchants “that
accept[ ] credit cards or debit cards,” see id. § 1681c(g)(1),

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Expedia must comply with FACTA. Dimitriy Simonoff purchased travel arrangements through Expedia’s website.
Expedia then emailed him a receipt, which included the expiration date of Simonoff’s credit card. He claims that this
email receipt violates FACTA.
The question we consider under FACTA is the meaning of
the words “print” and “electronically printed” in connection
with an emailed receipt. “Print” refers to many different
technologies—from Mesopotamian cuneiform writing on clay
cylinders to the Gutenberg press in the fifteenth century,
Xerography in the early twentieth century, and modern digital
printing—but all of those technologies involve the making of
a tangible impression on paper or other tangible medium. See
generally S.H. Steinberg, Five Hundred Years of Printing
(new ed. 1996). Although computer technology has significantly advanced in recent years, we commonly still speak of
printing to paper and not to, say, iPad screens. Nobody says,
“Turn on your Droid (or iPhone or iPad or Blackberry) and
print a map of downtown San Francisco on your screen.” We
conclude that under FACTA, a receipt that is transmitted to
the consumer via email and then digitally displayed on the
consumer’s screen is not an “electronically printed” receipt.
We affirm the district court’s dismissal of Simonoff’s claims
under Rule 12(b)(6).
ANALYSIS
I.

FORUM SELECTION CLAUSE

We first address a procedural aspect of the case—a forum
selection clause. Simonoff initially filed an action in Illinois
state court. Expedia removed the case to federal court and
then moved to dismiss the action on the basis of the forum
selection clause in Expedia’s user agreement. Simonoff voluntarily dismissed the action and re-filed his suit in state court
in King County, Washington. Expedia again removed the case

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to federal court, and the district court denied Simonoff’s
motion to remand.
Before a user can complete a transaction through Expedia’s
website, the user must consent to a user agreement that outlines the terms and conditions of the website’s use. The agreement contains a forum selection clause that provides: “You
hereby consent to the exclusive jurisdiction and venue of
courts in King County, Washington . . . in all disputes arising
out of or relating to the use of this Website.” The thrust of
Simonoff’s argument is that “exclusive jurisdiction and venue
. . . in King County” limits jurisdiction to the state courts.
We apply federal law in interpreting the forum selection
clause in Expedia’s agreement. Doe 1 v. AOL LLC, 552 F.3d
1077, 1081 (9th Cir. 2009) (per curiam). The “ ‘plain language of the contract should be considered first,’ ” id. (quoting Klamath Water Users Protective Ass’n v. Patterson, 204
F.3d 1206, 1210 (9th Cir. 1999)), with the understanding that
the “ ‘common or normal meaning of language will be given
to the words of a contract unless circumstances show that in
a particular case a special meaning should be attached to it,’ ”
id. (quoting Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817
F.2d 75, 77 (9th Cir. 1987)).
Our recent decision in Doe 1 is central to our analysis.
There we considered a forum selection clause in AOL’s website user agreement that provided for “exclusive jurisdiction
for any claim or dispute . . . in the courts of Virginia.” Id. at
1080. We concluded that the choice of the preposition “of” in
the phrase “the courts of Virginia” was determinative—“of”
is a term “ ‘denoting that from which anything proceeds; indicating origin, source, descent, and the like.’ ” Id. at 1082
(quoting Black’s Law Dictionary 1080 (6th ed. 1990)). Thus,
the phrase “the courts of” a state refers to courts that derive
their power from the state—i.e., only state courts—and the
forum selection clause, which vested exclusive jurisdiction in

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the courts “of” Virginia, limited jurisdiction to the Virginia
state courts. Id. at 1081-82.
[1] By way of contrast, however, we observed in Doe 1
that a forum selection clause referring to “courts in” a state
imposes a geographic limitation, not one of sovereignty. Id.
at 1082 & n.8. The word “in” means to “ ‘express[ ] relation
of presence, existence, situation, inclusion . . . ; inclosed or
surround by limits, as in a room.’ ” Id. at 1082 n.8 (quoting
Black’s Law Dictionary 758 (6th ed. 1990)). Hence the phrase
“courts in” a state includes any court within the physical
boundaries of the state, even if the court does not derive its
power and authority from the sovereignty of the state. See id.
at 1082 & n.8. In short, the rule we adopted in Doe 1 is that
a forum selection clause that specifies “courts of” a state limits jurisdiction to state courts, but specification of “courts in”
a state includes both state and federal courts.1
[2] The forum selection clause in the Expedia contract
vests “exclusive jurisdiction and venue . . . [in] the courts in
King County” (emphasis added). Because the clause uses the
preposition “in,” the contract contemplates federal as well as
state courts as proper courts for adjudication. As other circuits
have recognized, when a federal court sits in a particular
county, the district court is undoubtedly “in” that county. See
Alliance Health, 553 F.3d at 399-400; Global Satellite
Commc’n, 378 F.3d at 1272.2
1
Our approach is in accord with other circuits that have addressed similar language in forum selection clauses. See FindWhere Holdings, Inc. v.
Sys. Env’t Optimization, LLC, 626 F.3d 752, 755 (4th Cir. 2010); Alliance
Health Grp., LLC v. Bridging Health Options, LLC, 553 F.3d 397, 399400 (5th Cir. 2008); Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc.,
428 F.3d 921, 926 (10th Cir. 2005); Global Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1271-72 (11th Cir. 2004); Dixon v. TSE
Int’l Inc., 330 F.3d 396, 397-98 (5th Cir. 2003) (per curiam); Basicomputer Corp. v. Scott, 973 F.2d 507, 510 (6th Cir. 1992); LFC Lessors, Inc.
v. Pac. Sewer Maint. Corp., 739 F.2d 4, 6-7 (1st Cir. 1984).
2
Simonoff claims that the Western District of Washington is not truly
“in” King County because it encompasses and has physical locations in

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Simonoff’s reliance on the Tenth Circuit’s decision in
Excell, Inc. v. Sterling Boiler & Mechanical, Inc., 106 F.3d
318 (10th Cir. 1997), is at odds with our precedent. The forum
selection clause in Excell provided that “[j]urisdiction shall be
in the State of Colorado, and venue shall lie in the County of
El Paso, Colorado.” Id. at 320. The Tenth Circuit held that,
under this clause, venue was proper only in state court. Id. at
321. In doing so, the court relied on the notion that “[f]or federal court purposes, venue is not stated in terms of ‘counties.’
Rather, it is stated in terms of ‘judicial districts.’ ” Id. (citation
omitted). But, as the Fifth Circuit noted in Alliance Health,
the reasoning in Excell “would be more persuasive were the
federal courts organized in total disregard of state counties; if,
for instance, federal judicial districts were defined by metes
and bounds.” Alliance Health, 553 F.3d at 400-01. Because
judicial districts are in fact defined by counties, nothing in
Excell undermines our reasoning in Doe 1; nor may we sidestep our own precedent.3
[3] Consistent with Doe 1 and the decisions of our sister
circuits, we hold that a forum selection clause that vests “exclusive jurisdiction and venue” in the courts “in” a county
provides venue in the state and federal courts located in that
several counties. However, the present action was removed to the Seattle
Division of the Western District of Washington, which has its only courthouse in King County. This case unquestionably was removed to a court
“in” King County, Washington.
3
We reject Simonoff’s argument that the phrase “courts in” is not dispositive because the forum selection clause in Expedia’s contract refers
jointly to “jurisdiction and venue.” See, e.g., FindWhere, 626 F.3d at 754
(making no distinction in interpretation where the forum clause addressed
both jurisdiction and venue). Simonoff also relies on the word “exclusive,”
arguing that because “exclusive” implies “one,” this case could only be
brought in state court. But in this case, “exclusive” means to the exclusion
of courts not located in King County, Washington; it does not denote a
“singular” court. See Alliance Health, 553 F.3d at 400 (upholding venue
in federal court based on a clause providing “exclusive venue . . . in” a
county).

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county. The district court did not err in declining to remand
the case to state court.
II.

FACTA DOES NOT COVER EMAILED RECEIPTS

[4] We next consider Simonoff’s claim that Expedia violated FACTA by including the expiration date of the card in
an emailed receipt. The crux of this dispute is whether an
“electronically printed” receipt includes an email receipt displayed on a computer screen. As with all matters of statutory
interpretation, “[w]e begin with the text of the statute.” Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct.
1325, 1331 (2011). The relevant portion of FACTA provides:
(1) In general
[N]o person that accepts credit cards or debit cards
for the transaction of business shall print more than
the last 5 digits of the card number or the expiration
date upon any receipt provided to the cardholder at
the point of the sale or transaction.
(2) Limitation
This subsection shall apply only to receipts that are
electronically printed, and shall not apply to transactions in which the sole means of recording a credit
card or debit card account number is by handwriting
or by an imprint or copy of the card.
(3) Effective date
This subsection shall become effective—
(A) 3 years after December 4, 2003, with respect to
any cash register or other machine or device that
electronically prints receipts for credit card or debit

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card transactions that is in use before January 1,
2005; and
(B) 1 year after December 4, 2003, with respect to
any cash register or other machine or device that
electronically prints receipts for credit card or debit
card transactions that is first put into use on or after
January 1, 2005.
15 U.S.C. § 1681c(g). FACTA, then, prohibits merchants
from printing credit card expiration dates and non-truncated
credit card numbers on “electronically printed” receipts. Resolution of Simonoff’s appeal turns on the meaning of “print”
and “electronically printed.”
Although an issue of first impression for us, we are not the
first circuit to analyze this issue. In a detailed and thoughtful
opinion, the Seventh Circuit concluded that “Congress was
regulating only those receipts physically printed by the vendor
at the point of sale or transaction; to apply the statute to
receipts that are emailed to the consumer would broaden the
statute’s reach beyond the words that Congress actually
used.” Shlahtichman v. 1-800 Contacts, Inc., 615 F.3d 794,
802 (7th Cir. 2010), cert. denied, 131 S. Ct. 1007 (2011). We
adopt the same interpretation in light of the plain meaning of
“print” and “electronically printed” and their context in the
statute.
Because the term “electronically printed” is not defined in
the statute, we must determine its ordinary meaning. See, e.g.,
Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., 555
U.S. 271, 129 S. Ct. 846, 851 (2009) (noting that undefined
words in statutes carry their ordinary meaning). We begin
with the meaning of the word “print,” turning, as do the parties, to dictionary definitions for guidance. See id. (relying on
dictionary definitions to ascertain the ordinary meaning of
words undefined by statute).

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[5] The ordinary meaning of “print” is clear: printing
involves a physical imprint onto paper or another tangible
medium. See, e.g., Webster’s Third New International Dictionary 1803 (2002) (“[T]o make an impression in or upon: mark
with a print.”); American Heritage Dictionary of the English
Language 1441 (3d ed. 1996) (“To make an impression on or
in (a surface) with a device such as a stamp, seal, or die.”);
Oxford English Dictionary Online, available at:
http://www.oed.com (last visited May 9, 2011) (“To make or
produce (text, a book, a picture, etc.) by a mechanical process
involving the transfer of characters or designs on to paper,
vellum, etc., esp. from inked blocks, types, or plates.”). In
short, “ ‘print’ in its transitive verb form ordinarily connotes
the transfer of words or images to a tangible medium—often
paper.” Shlahtichman, 615 F.3d at 799. A printed receipt is
thus a receipt that exists in physical form, not one electronically displayed on a screen.4
The main dictionary definitions of “print” are supported by
standard modern usage of that term. As the Seventh Circuit
observed:
To “print” a receipt . . . ordinarily connotes recording it on paper. That is why [the plaintiff] had to
print a copy of his receipt to get it off of his computer; it is why the machine used to transfer text
from a computer to paper is called a printer; and it
is why a judge who asks a law clerk to print a case
does not intend for the clerk to merely display the
case on his computer screen.
Shlahtichman, 615 F.3d at 799 (alteration in original) (internal
quotation marks and citation omitted).
4
Simonoff cites two definitions in support of the contrary view. One of
those definitions, however, lists Simonoff’s preferred meaning as the definition not of “print” but of “print out”—a term that does not appear in
FACTA and is listed separately from “print” in the dictionary. Simonoff’s
alternate definition does little to aid in the interpretation of “print.”

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[6] That FACTA uses the phrase “electronically printed”
as opposed to simply “print” does not change our analysis. By
its terms, FACTA “appl[ies] only to receipts that are electronically printed, and [does] not apply to transactions in which
the sole means of recording a credit card or debit card account
number is by handwriting or by an imprint or copy of the
card.” 15 U.S.C. § 1681c(g)(2). FACTA, in other words, uses
“electronically printed” as one half of the dichotomy between
electronic and manual means of printing, and specifies that it
applies only to the former, not the latter. See id. As a result,
in the context of FACTA, “electronically” is an adverb modifying “printed.” Put another way, “electronically” functions to
clarify the manner of printing by differentiating receipts
printed with electronic devices from receipts printed by hand
or by manual imprint; it does not change the definition of
“print.” These contrasting options reinforce the notion that
“print” connotes the making of an impression on “a tangible
medium.” Shlahtichman, 615 F.3d at 799. Although “electronically printed,” when “considered in isolation, may [thus]
be open to competing interpretations[,] . . . considering the
provision in conjunction with the purpose and context” of the
statutory text leads us to conclude that “only one interpretation is permissible.” See Kasten, 131 S. Ct. at 1331.
[7] In enacting FACTA, Congress did not use language
that would have clearly extended FACTA’s protection to electronically mailed receipts. For example, Congress could have
applied FACTA to “electronically printed or transmitted”
receipts, to “electronically printable” receipts, or to “electronically displayed” receipts. See Simonoff v. Kaplan, Inc., No.
10 Civ. 2923, 2010 WL 4823597, at *7 (S.D.N.Y. Nov. 29.
2010). Congress, however, chose not to do so, even though it
has referred to digital methods of communication and commerce in numerous other statutes. See Shlahtichman, 615 F.3d
at 801-02 (canvassing various other federal statutes that use
terms such as “Internet,” “Internet websites,” “electronic
mail,” and “online service,” among others). We can’t fill in
the blanks with words that Congress didn’t supply.

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We may, of course, look to the structure of FACTA and its
other provisions for further guidance on the meaning of
“print.” See Kasten, 131 S. Ct. at 1331-33 (examining other
uses of a phrase within a statute, in other statutes, in agency
regulations, and in common judicial usage of a term). The
statutory context confirms that the word “print” limits
FACTA’s scope to receipts printed on paper or another tangible medium.
FACTA contains a staggered implementation provision that
requires “any cash register or other machine or device that
electronically prints receipts for credit card or debit card
transactions” to comply with the statutory requirements by
one of two dates, depending on when the device entered into
use. 15 U.S.C. § 1681c(g)(3). This provision is significant for
two reasons. First, the implementation provision applies only
to machines that generate physical receipts. Cash registers
unquestionably do so. The phrase extending coverage to any
“other machine or device” “may be given more precise content by the neighboring words with which it is associated.”
United States v. Stevens, 130 S. Ct. 1577, 1588 (2010) (internal quotation and citation omitted). Thus, “other machine or
device” should be read in light of “cash register.”5 So read,
“cash register or other machine or device” excludes machines
that do no more than electronically display information. Like
a cash register, the device must print the receipt.
FACTA’s implementation schedule is also noteworthy
because it differs depending on when a particular device was
put into use; the statute necessarily contemplates that the
“person that accepts credit cards or debit cards for the transac5

“Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in
nature to those objects enumerated by the preceding specific words.” In re
Estate of Covington, 450 F.3d 917, 922 (9th Cir. 2006) (alteration omitted)
(internal quotation marks and citation omitted). Because “other machine”
and “device” are broad terms, they should be read as embracing the same
subject matter as the more specific term “cash register.”

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tion of business” has control over the “cash register or other
machine or device that electronically prints” a receipt. See 15
U.S.C. § 1681c(g)(1) & (3). This provision is aimed at the
vendor, not the consumer. Devices that print paper receipts at
the store satisfy the condition, because merchants have direct
control over those devices. By contrast, consumers’ computer
screens do not fit into this regime. If computer screens were
deemed to “print” receipts within the meaning of the statute,
merchants’ liability would hinge on the date the customer purchased and began using a computer screen—an unintended,
nonsensical, and unpredictable result.6
FACTA also applies only to those devices that generate
receipts “at the point of the sale or transaction.” 15 U.S.C.
§ 1681c(g)(1). “Point of sale” is a term of art that applies to
“face-to-face transactions that take place in a ‘bricks-andmortar’ store or some comparable physical location at which
the consumer is handed a receipt.” Shlahtichman, 615 F.3d at
800. FACTA’s use of this phrase, along with the other phrases
already referenced, furnishes additional evidence that a “printed” receipt is one given to the customer in a tangible form.
[8] Given the plain meaning of “print,” the fact that the
term “electronically” modifies the method of printing and
does not alter the definition of “print,” the staggered implementation schedule that applies to physical devices that print
paper receipts, and the limitation of the statute to receipts produced at the point of the sale or transaction, we hold that
FACTA is unambiguous in its scope. The text of FACTA
simply leaves no room to doubt that “electronically printed”
receipts include only receipts impressed onto a tangible
medium by electronic devices at the point of the sale or transaction, not receipts that are electronically transmitted to an
email account or displayed on a computer screen.
6

Today, some retailers use devices that generate either a paper receipt
in the store or an email receipt, at the customer’s option. In any case, merchants like Expedia who make sales over the Internet have no control over
whether, or how, their customers print receipts.

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Our obligation to construe FACTA broadly does not
change the result here. FACTA, “as a remedial statute, should
be construed liberally, and its exceptions should be read narrowly.” See Whisnant v. United States, 400 F.3d 1177, 1184
(9th Cir. 2005) (quoting O’Toole v. United States, 295 F.3d
1029, 1037 (9th Cir. 2002)). Nevertheless, “[i]t is our function
to give the statute the effect its language suggests, however
modest that may be[,] not to extend it to admirable purposes
it might be used to achieve.” Morrison v. Nat’l Austl. Bank
Ltd., 130 S. Ct. 2869, 2886 (2010).
[9] We join the Seventh Circuit, as well as the solid majority of district courts that have addressed FACTA’s scope, in
holding that FACTA does not apply to receipts sent to a customer’s email account and then displayed on a screen. See
Shlahtichman, 615 F.3d at 798 (collecting cases). Accordingly, we affirm the judgment dismissing Simonoff’s suit.
AFFIRMED.