Fareportal, Inc. v. Kumar

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 29, 2026
• Docket: 24-4523
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 29 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FAREPORTAL, INC., No. 24-4523 D.C. No. Plaintiff - Appellant, 4:21-cv-02841-YGR v. MEMORANDUM* NISHITH KUMAR, AKA Nishith Varma,

Defendant - Appellee,

and

HNA GROUP (INTERNATIONAL) CO., LTD., HNA CAPITAL, LTD., JASON CHEN, LEI SHI,

Defendants.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted April 20, 2026** San Francisco, California

Before: S.R. THOMAS, CHRISTEN, and FORREST, 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). After filing other related complaints, Plaintiff-Appellant Fareportal, Inc.

brought six claims against its former employee pro se Defendant-Appellee Nishith

Kumar, alleging that it received new evidence of Kumar’s wrongdoing. The district

court granted judgment on the pleadings for Kumar on five of the six claims,

reasoning that those claims were untimely—mostly because Fareportal already knew

of Kumar’s asserted misdeeds.1 The district court also denied Fareportal leave to

amend. We have jurisdiction under 28 U.S.C. § 1291 and affirm in part, reverse in

part, and remand for further proceedings.

1. Judgment on the Pleadings. We review the grant of judgment on the

pleadings under Federal Rule of Civil Procedure 12(c) de novo. Webb v. Trader

Joe’s Co., 999 F.3d 1196, 1201 (9th Cir. 2021). “A judgment on the pleadings is

properly granted when, taking all the allegations in the pleadings as true, a party is

entitled to judgment as a matter of law.” Lyon v. Chase Bank USA, N.A., 656 F.3d

877, 883 (9th Cir. 2011) (citation omitted). The complaint must contain “sufficient

factual matter, accepted as true, to state a claim of relief that is plausible on its face.”

Harris v. County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012) (quoting Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009)). We need not “accept as true a legal conclusion

couched as a factual allegation.” Id. (quoting Iqbal, 556 U.S. at 678).

1 The sixth claim, for violation of the New Jersey Computer Related Offenses Act, was found timely and severed. The district court has since transferred that claim to the District of New Jersey.

2 24-4523 The district court correctly granted judgment on the pleadings to Kumar on

Fareportal’s Civil RICO, Defend Trade Secrets Act (DTSA), and California trade-

secret claims. These claims were not timely as filed. Fareportal’s RICO claim began

to run in 2016, when its previous complaint demonstrated that Fareportal knew of

the injury that forms the basis of its RICO claim. Similarly, Fareportal has not

adequately alleged new facts supporting either its DTSA or California trade-secrets

claim since 2016.

Additionally, neither the discovery rule nor equitable tolling applies to save

these claims. As to the RICO claim, the discovery rule does not apply because

Fareportal knew about its trade-secrets injury in 2016. See Pincay v. Andrews, 238

F.3d 1106, 1109 (9th Cir. 2001). And while Fareportal’s allegations demonstrate

diligence in pursuing the Travana Assets, Fareportal failed to include any specific

allegations of what it learned from the Assets that would trigger tolling under the

discovery rule for its DTSA claim. See 18 U.S.C. § 1836(d). Fareportal also failed

to allege specific facts concealed by Kumar and his co-conspirators, “waiv[ing] this

tolling defense” for the RICO and DTSA claims. Grimmett v. Brown, 75 F.3d 506,

514 (9th Cir. 1996). As to the California trade-secrets claim, Fareportal’s allegations

do not show that it “actually learned something [it] did not know before,” E-Fab,

Inc. v. Accts., Inc. Servs., 64 Cal. Rptr. 3d 9, 21 (Ct. App. 2007) (citation omitted),

and they are the type of conclusory allegations of delayed discovery that warrant

3 24-4523 dismissal, Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 921 (Cal. 2005). The

district court also correctly concluded that Fareportal failed to allege that Kumar

engaged in fraudulent conduct, making equitable tolling inapplicable to that claim.

Bernson v. Browning-Ferris Indus., 873 P.2d 613, 615–16 (Cal. 1994).

That said, the district court did err in granting judgment on the pleadings to

Kumar on Fareportal’s Unfair Competition Law (UCL) and civil-conspiracy claims.

To start, Fareportal’s civil-conspiracy claim was timely as filed. Fareportal alleges

that as late as November 8, 2017, one of Kumar’s co-conspirators lied in a

deposition, an act in furtherance of the conspiracy to violate the UCL. See Livett v.

F.C. Fin. Assocs., 177 Cal. Rptr. 411, 415 (Ct. App. 1981) (remanding on a theory

that attempts to conceal conspiracy were overt acts for statute-of-limitations

purposes). That date brings the alleged civil conspiracy within the four-year statute

of limitations. Cf. Filmservice Lab’ys, Inc. v. Harvey Bernhard Enters., Inc., 256

Cal. Rptr. 735, 742 (Ct. App. 1989) (explaining that the statute of limitations for

civil conspiracy claim is determined by the underlying action); Cal. Bus. & Prof.

Code § 17208 (providing that UCL claims have a four-year statute of limitations).

Though the UCL claim was untimely as filed, it was tolled under California’s

discovery rule. Under California law a plaintiff must “specifically plead facts to

show (1) the time and manner of discovery and (2) the inability to have made earlier

discovery despite reasonable diligence” to invoke the discovery rule. Fox, 110 P.3d

4 24-4523 at 920–21 (citation omitted). Fareportal alleged that it discovered new emails in

February 2021 and that those emails disclosed the scheme that forms the basis of its

UCL claim. And Fareportal further alleged that it was diligent in pursuing those

documents. Those allegations satisfy California’s discovery rule. See id.

2. Leave to Amend. Fareportal also challenges the denial of its request for

leave to amend. We review the denial only with respect to the Civil RICO, DTSA,

and California trade-secret claims because we affirm the grant of summary judgment

on the pleadings.

We review the denial of leave to amend for abuse of discretion and the futility

of amendment de novo. Cohen v. ConAgra Brands, Inc., 16 F.4th 1283, 1287 (9th

Cir. 2021). The district court abused its discretion in denying leave to amend the two

trade-secrets claims. Because the dismissal was premised on a statute-of-limitations

defense, the allegations in the complaint must foreclose the possibility of

amendment. See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d

954, 969 (9th Cir. 2010). “Because it is not clear that [Fareportal’s] complaint could

not be amended to show a lack of reasonable notice [or facts demonstrating

reasonable diligence as it relates to the DTSA and California trade-secrets claims],

dismissal without leave to amend was not appropriate.” Id. This is especially true

because Fareportal had not previously sought leave to amend. Cf. Schwartz v. Miller,

153 F.4th 918, 932 (9th Cir. 2025).

5 24-4523 Nevertheless, the district court’s denial of leave to amend was proper as to the

RICO claim. Fareportal’s previous filings demonstrate that it had knowledge of its

injury, which forecloses the possibility that its complaint could be amended to revive

the claim. See Von Saher, 592 F.3d at 969.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

6 24-4523