JH KELLY LLC v. TIANWEI NEW ENERGY HOLDINGS CO LTD (2017)

MEMORANDUM*

JH Kelly, LLC appeals the dismissal of its first amended complaint with prejudice. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

Even absent an express request for leave to amend, JH Kelly's fraud-based claims should not have been dismissed with prejudice.¹ See Henry A. v. Willden, 678 F.3d 991, 1005 (9th Cir. 2012) (citing Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)). The first amended complaint provided the defendants with ample notice of the “misconduct which is alleged to constitute the fraud charged” and comes very close to stating a plausible claim of fraud with the requisite particularity. See United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1180 (9th Cir. 2016).

There was no finding that the pleading deficiencies could not be cured by alleging additional facts consistent with the first amended complaint. See Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). And, at oral argument in this appeal, JH Kelly confirmed that it could allege additional facts to cure the deficiencies identified in the district court's order, given the opportunity to do so. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998) (dismissal without leave to amend improper “ ‘unless it is clear, upon de novo review, that the complaint could not be saved by any amendment’ ” (quoting Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996)).

VACATED AND REMANDED.

Each party shall bear their own costs.

FOOTNOTES

1.   JH Kelly does not challenge the dismissal of its negligence claim with prejudice.