NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 6 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE ESTATE OF WUXI CHENHWAT No. 23-55272 ALMATECH CO., a Chinese entity, D.C. No. Plaintiff-Appellant, 5:21-cv-00906-JGB-SP

v.

MEMORANDUM*

PRESTIGE AUTOTECH CORPORATION,

a Nevada corporation,

Defendant-Appellee,

and

DJOKO SUTRISNO, AKA Jiandong Wu, an individual; et al.,

Defendants.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Submitted September 6, 2024**

Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The Estate of Wuxi Chenhwat Almatech Co. (Wuxi) appeals from the

district court’s order denying its motion for default judgment and dismissing its

complaint with prejudice as barred by the applicable statute of limitations. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. See Lukovsky v.

City & Cnty. of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). We reverse

and remand for further proceedings.

Ordinarily, a district court should not dismiss a complaint with prejudice

unless it appears “beyond doubt” that a party can prove no set of facts that would

establish timeliness of a claim. Von Saher v. Norton Simon Museum of Art at

Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (remanding with instructions to allow

amendment where the face of complaint did not have facts to establish timeliness),

(quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1207 (9th Cir. 1995)). In

this case, Wuxi alleges that its claims are timely because they are compulsory

counterclaims which were tolled during the pendency of state court proceedings

initiated by appellee Prestige Autotech Corporation.

We accordingly reverse and remand to the district court for further

proceedings, including allowing Wuxi “the opportunity to present argument on the

state of limitations question before the district court.” See Levald, Inc. v. City of

Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993) (explaining that district court may

sua sponte dismiss a claim as time-barred where a defendant has not waived the

2 defense and also holding that plaintiff “had the opportunity to present argument on

the statute of limitations question before the district court and on appeal”). We

express no opinion about whether Wuxi’s claims are, in fact, time-barred.

REVERSED and REMANDED.

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