NOT FOR PUBLICATION FILED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

2 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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