Fed. R. App. P. 43 Places Duty on Appellant to Identify Party to Substitute for Deceased Appellee, Holds Third Circuit

In Aldossari v. Ripp, No. 21-2080 (3d Cir. Sept. 13, 2022), the Third Circuit – addressing a split in the circuits – holds that it must dismiss an appeal brought against a deceased appellee under Fed. R. App. P. 43 where the appellant has failed to identify a substitute party.

The case concerned a failed deal to build an oil refinery in St. Lucia in the Caribbean. Plaintiff Aldossari’s father entered into an agreement with three companies. “The project went forward, but, it is alleged, the owners of the three contract counterparties – one of whom later became the Crown Prince of Saudi Arabia – conspired to cut Aldossari’s father out of the deal by refusing to pay Trans Gulf its promised share of the proceeds . . . . Aldossari later assigned to his minor son, a U.S. citizen, whatever rights he had to whatever his father was owed. Then, acting on behalf of his son, Aldossari brought suit in the District Court, asserting various tort and contract claims.”

The district court dismissed the case on standing grounds plus, as a separate basis, “that each defendant other than Ripp was immune from suit. It determined that the Foreign Sovereign Immunities Act of 1976 (the ‘FSIA’), 15 U.S.C. § 1602 et seq., did not allow for jurisdiction over the claims against Saudi Arabia and Saudi Aramco. No jurisdiction existed over the claims against the current Crown Prince, meanwhile, because the common law of conduct-based immunity for officials of a foreign government entitled him to dismissal. And although the former Crown Prince had not yet moved to dismiss, the Court sua sponte concluded that he, too, was immune from suit on common-law conduct-based immunity grounds.”

The panel affirms the dismissal below (although it vacates the judgment and remands for entry of dismissal without prejudice). One of the issues the panel addresses is the disposition of co-defendant Ripp, who died three months after the filing of the notice of appeal. While doubting that the court has subject-matter jurisdiction – the plaintiff failed to allege any separate grounds over Ripp – “we would still dismiss the appeal against him on another threshold basis: Ripp has not been replaced in this appeal by any person or entity that can represent his interests.”

Fed. R. App. P. 43(a)(1) provides that if “a party dies after a notice of appeal has been filed or while a proceeding is pending in the court of appeals, the decedent’s personal representative may be substituted as a party on motion filed with the circuit clerk by the representative or by any party. A party’s motion must be served on the representative in accordance with Rule 25. If the decedent has no representative, any party may suggest the death on the record, and the court of appeals may then direct appropriate proceedings.”

The panel notes that Rule 43 “offers no guidance on what those ‘appropriate proceedings’ may be, in contrast to the analogous civil rule for district-court proceedings, which provides that ‘the action by or against the decedent must be dismissed’ if no one moves to substitute a party within ninety days of the death being stated on the record. Fed. R. Civ. P. 25(a)(1).”

The panel observes that the circuits are split on “appropriate proceedings” means. “[S]everal of our fellow circuits have interpreted Appellate Rule 43 to permit dismissing the claims involving the decedent when no representative has been substituted within a reasonable time period.” Meanwhile, other circuits “have taken a different approach in applying Appellate Rule 43, going ahead and ruling on the issues presented in the appeal as if no death had occurred.” But in those latter cases “the decedent was the plaintiff-appellant, and the defendant-appellee had no incentive to proactively go out and find a representative to take over the task of advancing a case against itself.”

“The calculus looks different when it is a plaintiff-appellant who wishes to proceed with an appeal upon the death of a defendant-appellee. After all, it is the plaintiff who bears the burden of diligently prosecuting his case . . . . It is appropriate, then, to place the onus on the plaintiff-appellant to timely identify a person (such as a legal representative or the trustee, administrator, or executor of the decedent’s estate) or an entity (such as an estate or a trust) that can be substituted for the decedent and that can defend the decedent’s interests. Without someone or something on the other side of the ‘v.’ in the caption, the plaintiff’s claims are pointless and dismissal of the appeal is warranted.”

“That is the situation here. Aldossari’s counsel asserted at argument that no estate had been opened for Ripp, and he was unable to say that one would ever be opened. The mere possibility that there may someday be a substitute party that Aldossari can bring to court is not enough to justify expending judicial resources on entertaining a one-sided cause of action.”

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