                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 15 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JH KELLY, LLC, a Washington limited             No.    14-36040
liability company,
                                                D.C. No. 4:13-cv-00368-BLW
                Plaintiff-Appellant,

 v.                                             MEMORANDUM *

TIANWEI NEW ENERGY HOLDINGS
CO., LTD., a People's Republic of China
company; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                             for the District of Idaho
                    B. Lynn Winmill, Chief Judge, Presiding

                     Argued and Submitted December 4, 2017
                              Seattle, Washington

Before: HAWKINS and CHRISTEN, Circuit Judges, and KOBAYASHI,**
District Judge.

      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.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
      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.

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

                                         2                                   14-36040
