LN MANAGEMENT, LLC SERIES 5664 V. JPMORGAN CHASE BANK, 18-15402 (9th Cir. Apr. 24, 2020) (2024)

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`2
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`
`LN MGMT. V. JPMORGAN CHASE BANK
`
`Appeal from the United States District Court
`for the District of Nevada
`Robert Clive Jones, District Judge, Presiding
`
`Submitted February 7, 2020*
`Pasadena, California
`
`Filed April 24, 2020
`
`Before: Danny J. Boggs,** Sandra S. Ikuta,
`and Kenneth K. Lee, Circuit Judges.
`
`Opinion by Judge Boggs
`
`
`SUMMARY***
`
`Joinder / Diversity Jurisdiction
`
`
`
`
`The panel vacated the district court’s judgment in a case
`
`raising claims after a Nevada homeowners’ association
`(“HOA”) commenced foreclosure proceedings; held that
`diversity jurisdiction existed and the Federal Foreclosure
`Bar applied; and remanded for further proceedings.
`
`
`
`* The panel unanimously concludes this case is suitable for decision
`without oral argument. See Fed. R. App. P. 34(a)(2).
`
`** The Honorable Danny J. Boggs, United States Circuit Judge for
`the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
`
`*** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

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`3
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`LN MGMT. V. JPMORGAN CHASE BANK
`
`
`
`In March 2003, Kit Dansker obtained a home loan to
`
`purchase real property in Las Vegas, Nevada. On October
`3, 2009, Dansker died. In 2011, the neighborhood HOA
`began foreclosure proceedings, and sold the property to LN
`Management, LLC. The priority lienholder was Fannie
`Mae, and the Federal Housing Finance Agency (FHFA).
`The district court held that LN Management had not
`identified any legal representative of Dansker’s estate, and
`since no such person was identified and joined, complete
`diversity existed. The district court then turned to the merits,
`and granted Fannie Mae’s loan servicer, JPMorgan Chase
`Bank, N.A.’s motion to dismiss on the grounds of then-
`prevailing precedent, Bourne Valley Court Tr. V. Wells
`Fargo Bank, N.A., 832 F.3d 1154 (9th Cir. 2016). The
`Nevada Supreme Court subsequently declined to endorse the
`holding in Bourne Valley.
`
`The panel held as an issue of first impression in this court
`
`that Dansker, as a dead person, was not a proper person to
`be sued. The panel held that the dead lack the capacities that
`litigants must have to allow for a true Article III case or
`controversy. The panel further held that when a dead person
`is named as a party, the dead person’s prior citizenship is
`irrelevant for diversity citizenship purposes when a
`controversy is between citizens of different states.
`
`The panel held that diversity did in fact exist at the time
`
`of removal where the lawsuit was against JPMorgan Chase
`and Kit Dansker, and Dansker, being dead, had no legal
`existence, and, therefore, was not a citizen of any state. The
`panel further held that the district court did not abuse its
`discretion by denying LN Management’s motion
`to
`substitute, for Dansker, the “Estate of Kit Dansker” where
`there was no indication in the record that probate
`proceedings were ever initiated by the Nevada courts in
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`LN MGMT. V. JPMORGAN CHASE BANK
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`4
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`Dansker’s regard, nor who the correct legal representative of
`Dansker’s estate was or is. The panel concluded that
`diversity jurisdiction continued to exist.
`
` Because the theory on which the district court found in
`favor of JPMorgan and FHFA and Fannie Mae on summary
`judgment was flawed, the panel vacated the district court’s
`decision, and remanded.
`
`
`
`COUNSEL
`
`
`Kerry P. Faughnan, North Las Vegas, Nevada, for Plaintiff-
`Appellant/Cross-Appellee.
`
`Howard N. Cayne, Asim Varma, Michael A.F. Johnson,
`Dirk C. Phillips, Lindsey D. Carson, and Omomah I. Abebe,
`Arnold & Porter Kaye Scholer LLP, Washington, D.C.;
`Abran Vigil, Bllard Spahr LLP, Las Vegas, Nevada; Leslie
`Bryan Hart and John Tennert, Fennemore Craig P.C., Reno,
`Nevada; for Defendants-Appellees/Cross-Appellants.
`
`
`
`OPINION
`
`BOGGS, Circuit Judge:
`
`There are a number of ways to accomplish litigation
`regarding interests once held by a dead person. One can
`institute or join probate proceedings, for instance, or sue the
`executor of an estate in courts of general jurisdiction, or in
`some circ*mstances proceed directly against the successors
`of the deceased. Rarely do we see efforts to actually engage
`the dead in litigation. This case turns on such a question,
`
`

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`LN MGMT. V. JPMORGAN CHASE BANK
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`
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`which is of first impression in this circuit: can you sue a dead
`person?1
`
`5
`
`The answer may seem obvious. Yet strangely, in the 129-
`year history of this court, we have never been called upon to
`rule on this issue. We do so today, and we resolve the
`question in the negative.
`
`I. Facts
`
`This case is an appeal from yet another Homeowner’s
`Association (HOA) foreclosure in Nevada that is being
`challenged by the mortgagor, the Federal Housing Finance
`Agency (FHFA), and Fannie Mae. Nevada law allows a
`homeowners’ association to foreclose on a property that is
`more than a certain number of months
`in arrears,
`notwithstanding the interest of the holder of any lien that
`might otherwise have priority, such as a mortgage. See Nev.
`Rev. Stat. § 116.3116(2); Berezovsky v. Moniz, 869 F.3d
`923, 925 (9th Cir. 2017). Unsurprisingly, such procedures
`
`
`1 There is ample extrajudicial literature bearing on this question.
`Dead men, we know from multiple authorities, would not make good
`litigants. They “tell no tales,” so they would be bad witnesses and
`deponents. See PIRATES OF THE CARIBBEAN: DEAD MEN TELL NO TALES
`(Walt Disney Pictures 2017). Since “you can’t take it with you,” they are
`judgment-proof defendants. See GEORGE S. KAUFMAN & MOSS HART,
`YOU CAN’T TAKE IT WITH YOU 75 (Dramatists Play Svc., Inc. 1937).
`And there is persuasive authority that, in whichever of the two traditional
`locations the deceased is now to be found, obtaining personal jurisdiction
`and serving of process would be difficult. See U. S. ex rel. Mayo v. Satan
`& his Staff, 54 F.R.D. 282, 283 (W.D. Pa. 1971) (finding no personal
`jurisdiction over defendant notwithstanding the “unofficial account” of
`The Devil and Daniel Webster); State Senator Ernie Chambers v. God,
`No. 1075-462, (Neb. Douglas Cty. Dist. Ct. Oct. 8, 2008) (dismissing
`case due to impossibility of service on Defendant), appeal dismissed;
`order vacated (Neb. Ct. App., No. 08-1180, Feb. 25, 2009).
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`LN MGMT. V. JPMORGAN CHASE BANK
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`6
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`have led to much litigation, particularly when the priority
`lienholder is Fannie Mae or the FHFA, which currently holds
`Fannie Mae in conservatorship. In such cases, the Housing
`and Economic Recovery Act (HERA) imposes a bar (the
`Federal Foreclosure Bar) to a foreclosure that would
`extinguish the interest of Fannie Mae or the FHFA without
`the FHFA’s consent. See 12 U.S.C. § 4617(j)(3); Fed. Home
`Loan Mortg. Corp. v. SFR Invs. Pool 1, LLC, 893 F.3d 1136,
`1140–41 (9th Cir. 2018); Berezovsky, 869 F.3d at 926–27.
`
`The case before us had its origins in March 2003, when
`Kit Dansker obtained an $83,000 home
`loan from
`Washington Mutual Bank, F.A. to purchase a home at
`5664 Divot Place in Las Vegas, Nevada. In April of that
`year, Fannie Mae purchased the loan and took ownership of
`the note and Deed of Trust. Five years later, in July 2008, in
`response to the global financial crisis, Congress passed the
`Housing and Economic Recovery Act of 2008 (HERA),
`establishing the Federal Housing Finance Agency (FHFA).
`HERA contains a provision, the Federal Foreclosure bar,
`which mandates that “[n]o property of the agency shall be
`subject to . . . foreclosure . . . without the consent of the
`Agency.” 12 U.S.C. § 4617(j)(3). As authorized by HERA,
`the FHFA took Fannie Mae into conservatorship that
`September, where it remains to this day.
`
`Meanwhile, on October 3, 2009, Dansker died. In 2011,
`the neighborhood HOA began foreclosure proceedings
`against 5664 Divot Place, and in March 2013 it sold the
`property at foreclosure sale to LN Management for $8,030.
`Neither the FHFA nor Fannie Mae ever consented to this
`HOA sale extinguishing the federal financial bodies’ interest
`in the property.
`
`In May 2013, LN Management filed a quiet-title action
`in Nevada state court against Kit Dansker and JPMorgan
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`7
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`LN MGMT. V. JPMORGAN CHASE BANK
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`
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`Chase Bank, N.A., which in May 2013 had become the
`record beneficiary of the deed of trust as Fannie Mae’s loan
`servicer. Because of the sheer number of Nevada HOA
`foreclosure cases over the past decade, as well as the
`interplay between state and federal courts, the law in this
`area has evolved repeatedly and rapidly. As a result, this
`case, like many others, had a convoluted path through the
`courts. First, JP Morgan Chase removed the case to federal
`court on the basis of diversity, arguing that Dansker was
`fraudulently
`joined. On September 5, 2013, LN
`Management made a formal Suggestion of Death, through
`which it entered Dansker’s death certificate into the record,
`evidencing her death four years earlier. On October 30, LN
`Management moved to substitute “the Estate of Kit
`Dansker” as a defendant instead of Kit Dansker. LN
`Management stated that it “has also discovered that no one
`has effectuated any probate action, therefore this action
`should continue, but with the estate of Kit Dansker named as
`the property real party in interest.” As the close-eyed reader
`can see, the very fact that no probate action had been
`initiated (through the correct state procedures) created an
`anomaly when it came to the proposed joinder of the estate:
`how was it to be joined? Through whom? The motion did
`not say, exactly. The attached memorandum of law stated
`that, “Plaintiff has not found … [a probate] proceeding, but
`has located at least one person, a Lori Weber, who claims to
`be the daughter of the decedent, which [sic] would be a
`proper person to serve on behalf of the estate of Kit Dansker,
`if the estate is substituted in as the real party in interest in
`place of Kit Dansker. FRCP 17(a)(1).”
`
`In November, the United States District Court for the
`District of Nevada ruled that Dansker was fraudulently
`joined, denied LN Management’s motion to remand, and
`granted JPMorgan Chase’s motion to dismiss. The court,
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`LN MGMT. V. JPMORGAN CHASE BANK
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`8
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`while noting Dansker’s death, did not base its fraudulent-
`joinder ruling on these grounds; rather, it held that the
`joinder was fraudulent because
`the foreclosure had
`extinguished any possible right Dansker might have to the
`property. In a one-line comment, it also denied a motion to
`substitute the Estate of Kit Dansker, for the same reason. The
`district court then dismissed the action for failure to state a
`claim, holding under a then-current district court precedent
`that an HOA foreclosure under Nevada’s law did not
`extinguish the rights of the holder of a first mortgage. See
`Bayview Loan Servicing, LLC v. Alessi & Koenig, LLC,
`962 F. Supp. 2d 1222 (D. Nev. 2013). LN Management
`appealed.
`
`While that appeal was pending, the Nevada Supreme
`Court ruled in SFR Investments Pool 1, LLC v. U.S. Bank,
`334 P.3d 408 (Nev. 2014), that a HOA foreclosure did
`indeed extinguish the rights of the holder of a preexisting
`mortgage. Id. at 419. LN Management and JPMorgan Chase
`therefore jointly requested that the appeal be dismissed,
`following which the district court, at the agreement of both
`parties, vacated the dismissal that it had been previously
`entered. Now the case was back before the district court. At
`this point, Fannie Mae and the FHFA moved successfully to
`intervene. The federal parties then moved for summary
`judgment on the basis of the Federal Foreclosure Bar. The
`district court denied this motion in September 2015, ruling
`that the fact that Fannie Mae did not appear as the record
`beneficiary of the deed of trust “create[d] a genuine issue of
`material fact as to whether the FHFA or Fannie Mae owned
`the note and deed of trust at the time of [the HOA] sale.”2
`
`
`2 This common situation, in which a bank rather than Fannie Mae
`appeared as the record beneficiary on the original mortgage, created two
`
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`LN MGMT. V. JPMORGAN CHASE BANK
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`9
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`In April 2017, the district court granted “several months”
`for jurisdictional discovery because, as it later noted,
`“diversity depended on the citizenships of any successor(s)-
`in-interest of the deceased homeowner (Kit Dansker) . . . .”
`Then, on December 7, 2017, LN Management renewed its
`motion to substitute the estate of Kit Dansker as the real
`party in interest in place of Kit Dansker. Despite the
`jurisdictional discovery period, the renewed motion was not
`materially different than the previous one, because it still did
`not identify a representative of the estate. It stated (in slightly
`more definitive language than the first time around) that
`“Plaintiff had located a daughter of the decedent, who lives
`in Nevada, which [sic] would be a proper person to serve on
`behalf of the estate of Kit Dansker, if the estate is substituted
`in . . . .” LN Management further requested time to “serve
`Lori Weber, a beneficiary of the estate of the deceased, Kit
`Dansker.”
`
`
`distinct questions for courts in the Nevada HOA cases. The first was
`whether Fannie Mae and the FHFA retained a property right in the
`mortgages, so as to invoke the Federal Foreclosure Bar. Cf. Berezovsky,
`869 F.3d at 932. The second was whether the type of evidence typically
`presented—the records of the federal financial bodies and the
`declarations of their representatives—was admissible and sufficient to
`support summary judgment. Cf. id. at 932–33 & n.8.
`
`At the time the district court in this case ruled, it relied on a 2012
`Nevada Supreme Court case, Edelstein v. Bank of N.Y. Mellon, 286 P.3d
`249, 254 (Nev. 2012), to hold that there was a triable issue of fact on the
`first inquiry and doubts as to the sufficiency of the evidence on the
`second. As will be seen, we have since clarified that the controlling
`Nevada precedent is In re Montierth, 354 P.3d 648, 650–51 (Nev. 2015),
`and that under it, the property right that Fannie Mae and the FHFA had
`in the mortgage here was sufficient to invoke the Federal Foreclosure
`Bar and the type of evidence involved was admissible and sufficient. See
`Berezovsky, 869 F.3d at 932–33 & n.8.
`
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`10
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`LN MGMT. V. JPMORGAN CHASE BANK
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`In 2018, the district court entered a second summary-
`judgment ruling, which is the one that is on appeal today.
`First, the court noted that, notwithstanding the jurisdictional-
`discovery process, “the parties had not identified any [of
`Dansker’s] successors.” “The dispositive fact was therefore
`that no non-diverse party had been joined.” In the absence of
`identifiable successors, the court noted, “LN now argues that
`the Court should consider Dansker’s estate to be a defendant
`(and to substitute the estate for Dansker, if necessary), and
`that under § 1332 the citizenship of the estate is the same as
`Dansker’s citizenship at the time of her death, i.e., Nevada,
`which would destroy diversity.” But LN had “neither
`identified any legal representative of Dansker’s estate nor, to
`the Court’s knowledge, made any effort to have one
`appointed” under state law in the five years (at the least)
`since learning of Dansker’s death. And “Dansker’s estate,
`like Dansker’s memory, is an abstract concept that cannot be
`sued except through a legal representative who can appear to
`defend the interests of the heirs (whether yet determined or
`not) in any remaining estate property.” Since such a person
`had not been identified and joined, the court found, complete
`diversity existed. Moreover, the court also ruled that:
`
`The Court denies the separate motion to
`substitute “the Estate of Kit Dansker” for Kit
`Dansker. First, Kit Dansker is not even a
`proper party who can be substituted for. She
`died before the action was filed, and no legal
`representative has ever appeared. Second, her
`estate is not a juridical entity that can sue or
`be sued except through a representative, and
`LN identifies none.
`
`Having so ruled, and having found that there was complete
`diversity, the district court then turned to the merits. It
`
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`11
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`LN MGMT. V. JPMORGAN CHASE BANK
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`
`
`granted JPMorgan Chase’s motion to dismiss on the grounds
`of our then-prevailing precedent, Bourne Valley Court Tr. v.
`Wells Fargo Bank, N.A., 832 F.3d 1154 (9th Cir. 2016),
`which held that Nevada’s HOA foreclosure statute was
`unconstitutional for lack of due process. Id. at 1160. This
`appeal followed.
`
`The FHFA and Fannie Mae, meanwhile, cross-appealed
`the district court’s denial of their motion for summary
`judgment on the basis of the Federal Foreclosure Bar and its
`denial as moot of their quiet-title and declaratory-judgment
`counterclaims. The cross-appeal is also before us in this
`case.
`
`II. Standards of Review
`
`We review a district court’s grant or denial of summary
`judgment de novo. Oswalt v. Resolute Indus., Inc., 642 F.3d
`856, 859 (9th Cir. 2011); Aceves v. Allstate Ins. Co., 68 F.3d
`1160, 1163 (9th Cir. 1995).
`
`“Removal presents a question of subject matter
`jurisdiction, which is reviewed de novo.” Schnabel v. Lui,
`302 F.3d 1023, 1029 (9th Cir. 2002). We review the decision
`to allow substitution under Fed. R. Civ. P. 25 for an abuse of
`discretion. See In re Bernal, 207 F.3d 595, 598 (9th Cir.
`2000); Charles v. Burton, 169 F.3d 1322, 1327 n.6 (11th Cir.
`1999). Similarly, we review the denial of a Fed. R. Civ. P.
`15 motion to amend for abuse of discretion. Allen v. City of
`Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).
`
`III. Legal Analysis
`
`Since the filing of this appeal, changes in or clarifications
`of the law have caused each party to abandon positions taken
`at the district court. The Nevada Supreme Court, in response
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`LN MGMT. V. JPMORGAN CHASE BANK
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`12
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`to a certified question from the federal District Court for the
`District of Nevada, clarified in 2018 that the HOA statute
`was subject to certain procedural protections of Nevada law
`(which the Bourne Valley court had held did not apply in
`such cases) and thus complied with constitutional due-
`process requirements. SFR Invs. Pool 1, LLC v. Bank of New
`York Mellon, 422 P.3d 1248, 1251–53 (Nev. 2018); see
`Bourne Valley, 832 F.3d at 1159. Therefore, the Nevada
`Supreme Court declined to endorse the holding of Bourne
`Valley. SFR Invs., 422 P.3d at 1253. JPMorgan and the
`federal financial bodies concede, for the purposes of this
`case only, that the theory on which the district court found
`in their favor at summary judgment was flawed. For that
`reason, though the defendants below ultimately do prevail
`today, we must vacate the decision below.
`
`On appeal, the federal financial bodies and JPMorgan
`Chase rely, however, on another theory. They argue that the
`Federal Foreclosure Bar should apply to this case and that
`the district court erred in not granting summary judgment on
`this point. Here it is LN Management that gives way. Since
`the district court issued its 2015 ruling denying the federal
`defendants’ motion for summary judgment on the grounds
`of the Federal Foreclosure Bar, we have clarified that the
`Federal Foreclosure Bar does indeed apply in situations,
`such as the one in this case, where the federal entity is not
`the record beneficiary on the deed of trust but can prove its
`property
`interest
`through admissible evidence. See
`Berezovsky, 869 F.3d at 932; Fed. Home Loan Mortg. Corp.
`v. SFR, 893 F.3d at 1149–50.3 In its Third Brief on Cross-
`Appeal, LN Management concedes that the FHFA’s
`“arguments [regarding the applicability of the] Federal
`Foreclosure Bar “are persuasive.” Failure to respond
`
`
`3 See also supra note 2.
`
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`13
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`LN MGMT. V. JPMORGAN CHASE BANK
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`
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`meaningfully in an answering brief to an appellee’s
`argument waives any point to the contrary. See Clem v.
`Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009). We are,
`moreover, satisfied that, as we have ruled over and over
`again recently, the Federal Foreclosure Bar does indeed
`apply to such situations.4
`
`Such a conclusion (or admission) is fatal to LN’s case on
`the merits. That would be that, therefore, except that LN
`Management raises two separate arguments as to why we
`lack subject-matter jurisdiction and thus that this case must
`be remanded to state court. First, LN Management argues
`that “original diversity jurisdiction never existed in the
`case,” because LN Management had originally tried to join
`Ms. Dansker (the deceased former resident of the foreclosed
`house) and the district court’s 2013 order finding this to be
`fraudulent joinder rested on an erroneous, since-discarded
`precedent. Secondly, LN Management points out that it had
`sought in 2013 and 2017 to have Ms. Dansker’s estate
`joined, which the district court denied each time. It now
`argues that these denials were error.
`
`As to the first argument, we held in another HOA-
`foreclosure case that attempts to join the former homeowner
`do not constitute fraudulent joinder. See Weeping Hollow
`Ave. Tr. v. Spencer, 831 F.3d 1110, 1113–14 (9th Cir. 2016).
`But Weeping Hollow concerned the joinder of a living
`owner. Dansker was dead at the time the joinder was
`
`4 In addition to Berezovsky and Federal Home Loan Mortgage Corp.
`v. SFR, see, e.g., Williston Inv. Grp., LLC v. JPMorgan Chase Bank, NA,
`736 F. App’x 168, 169 (9th Cir. 2018); JP Morgan Chase Bank v. Las
`Vegas Dev. Grp., LLC, 740 F. App’x 153, 154 (9th Cir. 2018); Elmer v.
`JPMorgan Chase & Co., 707 F. App’x 426, 427–28 (9th Cir. 2017);
`Saticoy Bay, LLC, Series 2714 Snapdragon v. Flagstar Bank, FSB,
`699 F. App’x 658, 659 (9th Cir. 2017).
`
`

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`LN MGMT. V. JPMORGAN CHASE BANK
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`14
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`attempted. Thus, we turn squarely to the question: can you
`sue a dead person?
`
`A. Can “I Sue Dead People?”
`
`Dansker, as a dead person, was not a proper person to be
`joined, regardless of Weeping Hollow. As it turns out, we
`have never had to explicitly rule before that a dead person,
`qua a dead person (as opposed to the dead person’s estate, of
`which, more later) cannot sue, be sued, or be joined to a
`lawsuit. We surmise that that is because such a rule is (and
`has been) self-evident. Nevertheless, it turns out at least
`three of our sister circuits and several district courts, in this
`circuit and elsewhere, have had to address this issue. Since a
`litigant’s citizenship for diversity purposes is a question of
`federal common law, rather than state law, see Kantor v.
`Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir.
`1983), we look now to those cases to inform our judgment.
`These cases have tended to arise out of a few common
`factual scenarios: an attorney simply does not know an
`opposing party is dead when he files a lawsuit; or the
`attorney (racing against a deadline) makes a mistake when
`filing a claim on behalf of a recently-deceased client; or, in
`the mass-harm-litigation context, there are simply too many
`parties to have ascertained whether a particular one of them
`is living or dead. In all events, the consensus of our sister
`courts is unanimous: you cannot sue a dead person. Indeed,
`most of these cases take that point nearly for granted,
`focusing instead on the issue of whether and under what
`circ*mstances substitution ought to be allowed.
`
`In 1969, the Fifth Circuit confronted a lawsuit filed by
`the Mizukamis, who were citizens of Japan, against Peter
`Buras, a Texan, who had hit and killed their relative Shasaku
`Mizukami with his pickup truck, and against Connecticut
`Fire Insurance Company, Buras’s insurer. Mizukami v.
`
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`15
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`LN MGMT. V. JPMORGAN CHASE BANK
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`
`
`Buras, 419 F.2d 1319, 1320 (5th Cir. 1969). Buras, however,
`had died between the time when he hit Shasaku and when
`the Mizukamis filed suit. Ibid. When the Mizukamis
`discovered this, they moved to substitute Buras’s heirs under
`Federal Rule of Civil Procedure 25(a)(1). In a short per
`curiam opinion, the Fifth Circuit concluded that “the rule
`contemplates substitution for someone who had been made
`a party before his death. It is not available to the appellants
`in the present case since Buras predeceased the filing of the
`action.” Ibid. The Fifth Circuit did not provide its reasons
`explicitly as to why the action could not be sustained as
`against Buras, but provided a citation to a district court
`decision, Chorney v. Callahan, 135 F. Supp. 35 (D. Mass.
`1955), that made it plain enough. See Mizukami, 419 F.2d
`at 1320. Chorney was another lawsuit arising out of a car
`crash in which the driver-defendant turned out to have died
`before suit was filed. 135 F. Supp. at 36. As in Mizukami,
`the plaintiff attempted to substitute the administrator of the
`decedent’s estate. Ibid. A suit against someone who is
`“already dead[,]” the Chorney court held, is “a nullity[.]”
`Ibid. Therefore, no substitution was available because
`“[t]here was no action really existent in which he could be
`substituted.” Ibid. In any event, it was “obvious[]” that a
`“dead man . . . cannot be named party defendant in an
`action.” Ibid.5
`
`
`5 We took note of Mizukami in Gilmore v. Lockard, 936 F.3d 857,
`864 n.4 (9th Cir. 2019). That case involved a § 1983 suit brought by
`Gilmore against several prison guards, one of whom died after being
`sued but before service of process. Id. at 859, 862–63. In overturning the
`denial of Gilmore’s motion to substitute the prison guard’s “successor or
`representative,” Fed. R. Civ. P. 25(a), we noted in passing that Mizukami
`was “inapposite since that suit was filed after the defendant’s death, and
`Rule 25(a) presupposes that the deceased was already a party in the
`action prior to death.” Id at 864 n.4.
`
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`16
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`LN MGMT. V. JPMORGAN CHASE BANK
`
`In 2004 the Tenth Circuit confronted the question of the
`substitution of a dead plaintiff, rather than a dead defendant.
`Esposito v. United States, 368 F.3d 1271 (10th Cir. 2004),
`concerned a Federal Tort Claims Act lawsuit filed on behalf
`of a prisoner, alleging that his death had been “the result of
`a negligent failure to provide him with adequate medical
`attention” while incarcerated. Id. at 1272. His attorney filed
`suit the day before a deadline, and, whether from the rush or
`due to admitted inexperience, named Esposito, rather than
`his surviving spouse, as the plaintiff. Id. at 1272–73. The
`district court held, and the government argued on appeal,
`that substitution could not be allowed because the action
`was, ab initio, a nullity and therefore the district court lacked
`subject-matter jurisdiction. Id. at 1272. The circuit court
`considered explicitly “whether substitution is in fact
`necessary or whether the action can be pursued in the name
`of Mr. Esposito[.]” Id. at 1273. It had no trouble deciding
`that Esposito could not pursue the action, because (in
`relevant part) as a dead person, he both lacked the capacity
`to sue and was no longer the real party in interest. Id. at
`1273–74. As with Mizukami, the crux of the action was on
`whether substitution could be allowed.6
`
`
`6 The Fifth Circuit decision in Mizukami was at base an
`interpretation of Rule 25(a), which, as that court saw it, “contemplates
`substitution for someone who had been made a party before his death”
`and therefore “is not available” to substitute someone who died before
`they ever became a party. Mizukami, 419 F.2d at 1320; cf. Fed. R. Civ.
`P. 25(a) (referring to the death of “a party” whose “claim is not
`extinguished”). The Tenth Circuit in Esposito, on the other hand, was
`interpreting Fed. R. Civ. P. 17, which addresses the substitution for the
`previous (incorrect) plaintiff one who is the real party in interest. This
`rule contains affirmative language enjoining courts “not [to] dismiss an
`action for failure to prosecute in the name of the real party in interest
`until . . . a reasonable time has been allowed for the real party in interest
`to . . . be substituted into the action. After . . . substitution, the action
`
`
`

`

`
`
`
`LN MGMT. V. JPMORGAN CHASE BANK
`
`17
`
`The most recent circuit decision to address the question
`of whether the dead can sue or be sued is House v. Mitra
`QSR KNE LLC, 796 F. App’x 783 (4th Cir. 2019). This
`unpublished but thorough Fourth Circuit opinion gives a
`persuasive overview of the law in this area. House was the
`manager of a restaurant who suffered from alcoholism.
`When his employer terminated him while House was in a
`treatment program, House filed a discrimination charge with
`the EEOC under the ADA. House unfortunately died, but his
`counsel, who faced a filing deadline on the same day that he
`was informed of his client’s passing, commenced the suit in
`House’s name. He then moved to substitute. The Fourth
`Circuit saw the core difficulty in trying to address a suit filed
`on behalf of a dead plaintiff as one of Article III standing:
`
`Absent a plaintiff with legal existence, there
`can be no Article III case or controversy.
`“The most elemental
`requirement of
`adversary litigation is that there be two or
`more parties. There must be a real plaintiff at
`the inception of the suit. . . .” Wright &
`
`
`proceeds as if it had been originally commenced by the real party in
`interest.” Fed. R. Civ. P. 17(a)(3). The Tenth Circuit saw this distinction
`as rendering Mizukami “not on point.” 368 F.3d at 1277. Instead, it held
`that “Rule 17(a) is designed to prevent forfeitures, and as such must be
`given broad application.” Id. at 1278. Observing that “nothing in Rule
`17(a) requires that the original plaintiff have capacity to sue[,]” it ruled
`that substitution should be allowed and “shall have the same effect as if
`the action had been commenced in the name of the real party in interest.”
`Id. at 1277–78 (quoting Fed. R. Civ. P. 17(a) (emphasis added)). In a
`separate section, relying on the commentary to the Rule, the court
`stipulated that the original mistake also had to be “honest.” Id. at 1276–
`77. While the Tenth and the Fifth Circuits are therefore not technically
`in a circuit split, the Tenth Circuit’s ruling is incompatible with the
`constitutional rule embraced by the Fourth Circuit in the next case we
`examine. That case, however, is unpublished.
`
`

`

`18
`
`
`LN MGMT. V. JPMORGAN CHASE BANK
`
`Miller, § 3530. Only an actual and live
`plaintiff
`can
`“assure
`that
`concrete
`adverseness which sharpens the presentation
`of issues upon which the court so largely
`depends for illumination of difficult . . .
`questions[.]” Baker v. Carr, 369 U.S. 186,
`204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); see
`also Ellis v. Dyson, 421 U.S. 426, 434, 95
`S.Ct. 1691, 44 L.Ed.2d 274
`(1975)
`(expressing “grave reservations about the
`existence of an actual case or controversy” in
`challenge to loitering ordinance because
`putative plaintiffs had not been heard from in
`a year). By the same token, a plaintiff without
`legal existence is a poor fit for the Article III
`standing trifecta of injury, causation, and
`redressability; it is not clear, for example,
`how a favorable court ruling could offer
`redress to a deceased person, or a party
`otherwise
`lacking
`legal existence. See
`ChinaCast Educ. Corp. v. Chen Zhou Guo,
`No. CV 15-05475-AB, 2016 WL 10653269,
`at *2 (C.D. Cal. Jan. 8, 2016) (considering
`“the
`fundamental standing question of
`whether” alleged injuries can be redressed “if
`Plaintiff no longer legally exists”). But
`however we frame the jurisdictional defect
`here, the outcome is the same: “There is no
`plaintiff with standing if there is no plaintiff.”
`In re: 2016 Primary Election, 836 F.3d 584,
`587–88 (6th Cir. 2016).
`
`* * *
`
`

`

`
`
`
`LN MGMT. V. JPMORGAN CHASE BANK
`
`19
`
`Absent legal existence at the outset of this
`litigation, House could not have “a personal
`stake in the outcome of the controversy”
`sufficient “to warrant his invocation of
`federal-court jurisdiction.” Warth v. Seldin,
`422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d
`343 (1975). Because House personally stands
`to gain or lose nothing from the suit,