Ping Shun Corporation v. Imperial Pacific International ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PING SHUN CORPORATION, No. 21-15836
Plaintiff-Appellee, D.C. No. 1:20-cv-00012
v.
MEMORANDUM*
IMPERIAL PACIFIC INTERNATIONAL
(CNMI), LLC,
Defendant-Appellant.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, Chief District Judge, Presiding
Argued and Submitted July 6, 2022
Honolulu, Hawaii
Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.
Imperial Pacific International (CNMI), LLC (“IPI”) appeals the district
court’s summary judgment in favor of Ping Shun Corporation (“Ping Shun”) on an
account stated claim for $443,900.50 arising out of a food services contract. While
this appeal was pending, IPI filed a motion for indicative relief under Federal Rule
of Civil Procedure (“Rule”) 62.1 on a motion for relief from judgment under Rule
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
60(b) based on newly discovered evidence of fraud. We have jurisdiction over the
district court’s summary judgment order under 28 U.S.C. § 1291, and we vacate
and remand.
1. To obtain relief from judgment under Rule 60(b)(2), the moving party
must show (1) evidence that is “newly discovered,” (2) the moving party
“exercised ‘due diligence’ to discover this evidence,” and (3) “the newly
discovered evidence must be of such magnitude that the production of it earlier
would have been likely to change the disposition of the case.” Coastal Transfer
Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987); see also Fed.
R. Civ. P. 60(b)(2). The district court found that IPI’s evidence was “newly
discovered” and could not “have been discovered with reasonable diligence.” See
Coastal Transfer Co., 833 F.2d at 212. But the district court denied IPI’s motion
because it concluded that IPI failed to meet the third factor—that the new evidence
would likely change the summary judgment ruling. We conclude that the district
court erred in its analysis of the third factor.
An account stated claim requires a statement of an account and an express or
implied manifestation of assent. Restatement (Second) of Contracts § 282 (1981);
see also 7 N. Mar. I. Code § 3401. IPI’s newly discovered evidence, assuming it is
admissible, suggesting that Ping Shun fraudulently inflated the number of meals it
provided may raise a dispute of fact as to the validity of the account stated and
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IPI’s manifestation of assent, which would preclude summary judgment in Ping
Shun’s favor. See Assoc. Petroleum Prods., Inc. v. Nw. Cascade, Inc., 203 P.3d
1077, 1081-82 (Wash. Ct. App. 2009). We therefore vacate summary judgment for
the district court to determine whether triable issues of fact exist in light of the new
evidence.
2. We note that the district court failed to rule on IPI’s evidentiary
objections to the declaration of Shun Lin Zeng proffered by Ping Shun in
opposition to IPI’s Rule 60(b) motion but appeared to consider this conflicting
evidence. A trial court can only consider evidence “that would be admissible” at
trial in ruling on a motion for summary judgment. Fed. R. Civ. P. 56(c)(2); cf.
Sandoval v. Cnty. of San Diego, 985 F.3d 657, 666 (9th Cir. 2021) (“If the contents
of a document can be presented in a form that would be admissible at trial—for
example, through live testimony by the author of the document—the mere fact that
the document itself might be excludable hearsay provides no basis for refusing to
consider it on summary judgment.”) (citation omitted). We do not determine
whether Ping Shun’s evidence is admissible. The district court should rule on IPI’s
evidentiary objections in the first instance.
VACATED AND REMANDED.
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