Ln Management, LLC Series 5664 v. Jpmorgan Chase Bank

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LN MANAGEMENT, LLC SERIES 5664 No. 18-15402
DIVOT,
Plaintiff-Appellant, D.C. No.
2:13-cv-01420-
v. RCJ-GWF

JPMORGAN CHASE BANK, N.A.,
Defendant-Appellee,

FEDERAL NATIONAL MORTGAGE
ASSOCIATION; FEDERAL HOUSING
FINANCE AGENCY,
Counter-Claimants-Appellees.

LN MANAGEMENT, LLC SERIES 5664 No. 18-15510
DIVOT,
Plaintiff-Appellee, D.C. No.
2:13-cv-01420-
v. RCJ-GWF

FEDERAL NATIONAL MORTGAGE
ASSOCIATION; FEDERAL HOUSING OPINION
FINANCE AGENCY,
Counter-Claimants-Appellants.
2 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.
 LN MGMT. V. JPMORGAN CHASE BANK 3

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
4 LN MGMT. V. JPMORGAN CHASE BANK

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 circumstances 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,
 LN MGMT. V. JPMORGAN CHASE BANK 5

which is of first impression in this circuit: can you sue a dead
person? 1

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).
6 LN MGMT. V. JPMORGAN CHASE BANK

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
 LN MGMT. V. JPMORGAN CHASE BANK 7

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,
8 LN MGMT. V. JPMORGAN CHASE BANK

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
 LN MGMT. V. JPMORGAN CHASE BANK 9

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.
10 LN MGMT. V. JPMORGAN CHASE BANK

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
 LN MGMT. V. JPMORGAN CHASE BANK 11

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
12 LN MGMT. V. JPMORGAN CHASE BANK

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.
 LN MGMT. V. JPMORGAN CHASE BANK 13

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).
14 LN MGMT. V. JPMORGAN CHASE BANK

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
circumstances 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.
 LN MGMT. V. JPMORGAN CHASE BANK 15

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.
16 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, no
matter how it is resolved, he cannot avail
himself of the jurisdiction of the federal
courts.

Id. at 787–88. In short, “a deceased plaintiff lacks Article III
standing.” Id. at 784. 7 We find the Fourth Circuit’s
observations persuasive. Plaintiffs, to be sure, have to
undergo a standing analysis—injury, causation, and
redressability—to which defendants are not subject. But we
do not see that as the heart of the Fourth Circuit’s reasoning
here, but rather as an illustration of it. The core observation
is that the dead lack the capacities that litigants must have to
allow for a true Article III case or controversy. We find this
obvious, but sometimes stating the obvious is necessary.

7
Because it grounded its decision in constitutional standing, the
House court distinguished Esposito, writing:

[T]he [Esposito] court failed to address the
jurisdictional implications of a deceased plaintiff,
holding only ‘that [the plaintiff’s] lack of capacity at
the time the suit was filed d[id] not prevent the
substitution from relating back to the date the suit was
filed under Rule 17(a).’ [Esposito, 368 F.3d]. at 1278.

House, 796 F. App’x at 789.
20 LN MGMT. V. JPMORGAN CHASE BANK

There is a further difference between House and our
case. In House, because the sole plaintiff was dead, once he
lacked standing, then, unless substitution was allowed, the
entire case became a nullity. In our case, if LN Management
could not proceed against Dansker, they nevertheless still
had a live case or controversy against Fannie Mae, the
FHFA, and JPMorgan Chase, which they could continue to
pursue in federal court. Indeed, this is the core of the
diversity question. Substitution then becomes a separate
question, which is examined in section III.B below.
Meanwhile, we continue our assessment of federal common
law by turning to cases from the nation’s district courts.

The federal defendants in our case cite two district court
cases from outside our circuit. One of those cases, Fulford v.
Mkt. St. Mortg. Corp., No. 05-cv-336, 2005 WL 3263884
(M.D. Ala. Dec. 1, 2005), is remarkably on point. As in the
case before us, the plaintiffs sued both an out-of-state
corporation and an in-state person, who turned out to have
died before the lawsuit was instituted. Id. at *1. The result:
complete diversity. “If a plaintiff joins with a nonresident
defendant a dead man, who was a resident of the same state
with the plaintiff in his lifetime, there is still complete
diversity of citizenship, no matter how sincerely the plaintiff
believed that the dead man was a living man.” Id. at *3
(quoting State of Missouri v. A.B. Collins & Co., 34 F. Supp.
550 (W.D. Mo. 1940)). The second case cited by the federal
defendants is In re Engle Cases, No. 3:09-cv-10000-J-32,
2013 WL 8115442 (M.D. Fla. Jan. 22, 2013), in which a
district court was confronted with thousands of individual
cases filed against a cigarette company by smokers. 521 of
these would-be plaintiffs turned out to have been dead by the
time the action was filed. Id. at *1. The court held that “a
lawsuit filed in the name of a deceased individual is a nullity
over which this Court has no jurisdiction” because “a
 LN MGMT. V. JPMORGAN CHASE BANK 21

deceased individual cannot be a party to a lawsuit.” Id. at *2.
The issue on which the parties truly jousted was, yet again,
substitution. 8

Several of our district courts have followed Mizukami or
similar cases in holding that Rule 25 substitutions are
unavailable when the defendant for whom substitution is
sought was dead before the commencement of the action,
which was therefore a nullity. See Gabor v. Deshler, No. 17-
CV-01524-LHK, 2017 WL 4151042, at *12 (N.D. Cal. Sept.
19, 2017); Lacy v. Tyson, No. 1:07-cv-00381, 2012 WL
4343837, at *2 (E.D. Cal. Sept. 20, 2012); Rhodes v.
Gordon, No. CV 12-2863-JGB (DTB), 2013 WL 3780378,
at *18 & n.14 (C.D. Cal. July 16, 2013), report and
recommendation adopted, No. CV 12-2863-JGB (DTB),
2013 WL 12072123, at *1 (C.D. Cal. Sept. 26, 2013). For a
case in which the decedent was the plaintiff, and therefore
the applicable Rule was Fed. R. Civ. P. 17(a), see Cacossa
v. Amylin Pharm., Inc., No. 3:12-cv-03020-AJB (MDD),
2014 WL 2090552, at *3 (S.D. Cal. May 16, 2014). The
significant point for our purposes today is that none of these
courts considered an answer to the dilemma of substitution
to be allowing the case to proceed against (or on behalf of)
the dead person. Looking outside our circuit, moreover, a
significant number of other district courts have ruled that the

8
On appeal, the issue of whether the lawsuits could have been
maintained in the name of the dead was uncontested. In re Engle Cases,
767 F.3d 1082, 1108 (11th Cir. 2014) (“It is uncontested that the personal
injury cases were properly dismissed—whether nullities ab initio or
not—if the complaints cannot now be amended to substitute in the
personal representatives of the decedents' estates and allege wrongful
death claims or survival claims on their behalf.” Nevertheless, the
Eleventh Circuit felt comfortable proclaiming that, “As any lawyer
worth his salt knows, a dead person cannot maintain a personal injury
claim[.]” Id. at 1086–87.
22 LN MGMT. V. JPMORGAN CHASE BANK

dead cannot sue or be sued. See House, 796 F. App’x at 788
(collecting cases); Lacy, 2012 WL 4343837, at *2 (collecting
cases in the Rule 25 context).

In addition, there are sound logical reasons not to allow
suits against the dead. Our concern is not, primarily, injustice
to the deceased. 9 Rather, if lawsuits against the dead were

9
There are historical examples where this was the concern—and
which, if we take a very broad view of the term, may even constitute
precedent (albeit from foreign jurisdictions) contrary to the decision we
reach today. In January 897, Pope Stephen VII exhumed his predecessor
and rival, Pope Formosus, and put Formosus on trial in the so-called
“Cadaver Synod,” named for the physical presence of the deceased in the
courtroom. See Donald E. Wilkes, Jr., The Cadaver Synod: Strangest
Trial in History, POPULAR MEDIA Paper No. 42 (2001), available at
https://digitalcommons.law.uga.edu/fac_pm/42. See also Robert
Browning, The Ring and the Book, Bk. X ln. 30–31, reprinted in 4 THE
COMPLETE WORKS OF ROBERT BROWNING 463–68 (New Century
Library 1899) (“Read,—how there was a ghastly Trial once/Of a dead
man by a live man, and both, Popes”); id. at 1–161. We note however
that this court may have jurisdiction that exceeds our own. See Matthew
16:18–19.

Meanwhile, in the Netherlands in the 17th century, after Maurits,
Prince of Orange, deposed the Oldenbarnevelt regime in a coup,
Oldenbarnevelt’s secretary, Gilles van Ledenberg, committed suicide in
prison in an attempt to save his estate from forfeiture. He was,
notwithstanding, tried and found guilty (and “hanged” in his coffin). See
2 JOHN LOTHROP MOTLEY, THE LIFE AND DEATH OF JOHN OF
BARNEVELD 394 (Harper & Bros. 1879), available at
https://tinyurl.com/u7wcxol. This may remind readers of the more
familiar—to the English-speaking world—posthumous execution of
Oliver Cromwell. Cromwell, however, was not tried, but rather
posthumously attainted. See ANTONIA FRASER, CROMWELL 691–92
(Knopf 1973).

While such cases are fascinating historical oddities, they provide an
extreme example of the obvious injustice—and grotesqueries—that
 LN MGMT. V. JPMORGAN CHASE BANK 23

allowed, injustice to the living would result. In this case, if
Dansker’s heirs did have a viable claim to the property
(something very much in doubt), then a suit against the dead
Dansker would allow the plaintiff to create the appearance
of a true quiet-title action while in fact avoiding notifying
those who could actually defend their rights, i.e. the
representative of the estate. As a formal matter, we
acknowledge the force of the Fourth Circuit’s analysis that
the dead do not provide the requisite adversarialness to make
them parties to an Article III case or controversy. More
generally, we are confident that allowing proceedings
against the dead would, in this case and many others, deprive
the living of due process. We therefore join our sister circuits
in holding that a party cannot maintain a suit on behalf of, or
against, or join, a dead person, or in any other way make a
dead person (in that person’s own right, and not through a
properly-represented estate or successor) party to a federal
lawsuit. And by extension, when a dead person is named as
a party, the dead person’s prior citizenship is irrelevant when
determining whether the controversy “is between . . .
citizens of different States.” 28 U.S.C. § 1332(a).

We note, however, that we do not today rule on the tricky
substitution questions that divided the Fifth Circuit in
Mizukami and the Fourth in House, on the one hand, from
the Tenth in Esposito, on the other. Because one cannot
maintain a suit against a dead person, it follows that LN
Management’s argument that “when the matter was
removed, there was no diversity of the parties and therefore
no subject matter jurisdiction of the district court” is simply
wrong. There was diversity when the case was originally
removed, because the lawsuit—as LN Management

would result from bringing the dead into court in their own capacity. (If
capacity is even a word that can be used in such circumstances.)
24 LN MGMT. V. JPMORGAN CHASE BANK

acknowledges—was against JPMorgan Chase and Kit
Dansker, the latter of whom, being dead, had no legal
existence and therefore was not a “citizen[]” of any state.
28 U.S.C. § 1332(a). Whether or not substitution ought to be
allowed, notwithstanding that the party had been dead ab
initio, is—as we have seen—a trickier question. Luckily, it
is not one we have to resolve today, nor do we. As we discuss
in the next section, the denial of the motion to substitute is
evaluated under an abuse-of-discretion standard that LN
Management cannot, in our case, overcome. In any event,
diversity jurisdiction did in fact exist at the time of removal.

B.

Thus, LN Management turns to its second argument: 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 noted, we review the decision to allow substitution
under Rule 25 for an abuse of discretion. See In re Bernal,
207 F.3d at 598; see also Charles, 169 F.3d at 1327 n.6.
Similarly, we review the grant or denial of motions to amend
under Fed. R. Civ. P. 15 for abuse of discretion. Allen,
911 F.2d at 373. LN Management made its motion “upon . . .
FRCP 17(a)[,]” but as defendants rightly observe, Fed. R.
Civ. P. 17(a) addresses the proper party to prosecute an
action, not to defend it. The district court did not address this
discrepancy when it ruled on the substitution motions. We
could construe the request to replace Dansker with “the
Estate of Kit Dansker” as a motion to substitute under Rule
25(a) or, as LN Management now requests, as a request to
amend the pleadings under Rule 15. Either way, the standard
would remain the same (abuse of discretion)—as it would
even if Rule 17(a) were the correct vehicle. See Jones v. Las
 LN MGMT. V. JPMORGAN CHASE BANK 25

Vegas Metro. Police Dep’t, 873 F.3d 1123, 1128 (9th Cir.
2017).

It is for this exact reason that we do not have to decide
today whether to adopt the Mizukami rule (disallowing
substitution for a dead person no matter how good the cause,
because Rule 25 speaks only of substituting for claims that
had previously existed and thus does not apply), or a more
lenient and flexible rule based on something like the Tenth
Circuit’s logic in Esposito. We leave that for a later court.
Even if a district court could order substitution for a party
dead ab initio, under Rule 25(a), LN Management cannot
show that this district court abused its discretion in declining
to do so.

LN Management requested the substitution, for Dansker,
of “the Estate of Kit Dansker.” But “[a]n estate is not a
person or a legal entity and cannot sue or be sued; an estate
can only act by and through a personal representative and
therefore any action must be brought by or against the
executor or representative of the estate.” 34 C.J.S. Executors
and Administrators § 847; see also Nev. Rev. Stat. § 143.060
(“Actions for the recovery of any property . . . or to quiet title
thereto, or to determine any adverse claim thereon . . . may
be maintained by and against a personal representative in all
cases in which the actions might have been maintained by or
against the decedent.”); Jones, 873 F.3d at 1128 (“[N]o
proper plaintiff had been named” under Nevada law where
the complaint “nam[ed] Jones’s estate and father as plaintiffs
(rather than naming the father as administrator of Jones’s
estate).”). Therefore, the judge below was correct to refuse
to allow the “estate,” as a mere concept, to be joined as a
party. Indeed, because an estate is not a legal entity, the
“Estate of Kit Dansker” only has meaning in Nevada insofar
as certain machinery of the state courts is set in motion—a
26 LN MGMT. V. JPMORGAN CHASE BANK

will is probated, Letters Testamentary or of Administration
are issued, an administrator is appointed, or the like. Cf., e.g.,
Nev. Rev. Stat. § 132.120 (“Estate” defined); §§ 136.070,
139.120. As Judge Jones explained below, in order to open
an estate, someone would have “to petition a Nevada probate
court to appoint a personal representative under [Nev. Rev.
Stat.] Chapter 138 (if there be a will), or an administrator or
special administrator under Chapters 139 or 140 (if Dansker
died intestate).” LN Management knew as early as 2013 that
this had not been done, arguing in its filing that it “ha[d] also
discovered that no one has effectuated any probate action
. . . .” There is no indication in this record that probate
proceedings were ever initiated by the Nevada courts in
Dansker’s regard, nor (which would also matter) if they were
ever closed. Nor who the correct legal representative of
Dansker’s estate was or is. Therefore, the request to add an
unknown, and perhaps nonexistent, executor (if the motion
were to be so construed) is clearly improper.

On appeal, LN Management leans most heavily on the
fact that in both 2013 and 2017 it identified one Lori Weber,
“who claims to be the daughter of the decedent,” whom it
wished to have served and who, it argues, would have been
a proper person to serve so as to bring in the estate. LN
Management now argues that in light of this, its motions
should have been granted and thus that diversity jurisdiction
should have been destroyed.

It is, remarkably, still unclear whether Dansker’s
daughter is a proper representative of the estate for legal
purposes—or even exists. Plaintiff proposed to join her “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.”
(Emphasis added.) This seems to duck, rather than solve, the
essential problem that one must sue the correct legal
 LN MGMT. V. JPMORGAN CHASE BANK 27

representative of the estate, not the estate as a concept. Put
simply, there still is no evidence in the record that Weber
was the correct legal representative of Dansker’s estate, nor
that LN Management had sought to sue her in her personal
capacity as a potential heir to the property. The district court
was correct to note that:

LN has neither identified any legal
representative of Dansker’s estate nor, to the
Court’s knowledge, made any effort to have
one appointed. LN has had several years
since learning (no later than 2013) of
Dansker’s death (in 2009) to petition a
Nevada probate court to appoint a personal
representative under Chapter 138 (if there be
a will), or an administrator or special
administrator under Chapters 139 or 140 (if
Dansker died intestate). Absent a successor
with his or her own interest in the property—
none has been identified—only a legal
representative of Dansker’s estate may sue or
be sued. . . . And although the Court has
jurisdiction to enter judgment on a civil
common law claim against such a
representative, the Court has no jurisdiction
to appoint a representative in the first
instance, which would be an act of
administration of the estate. See Marshall v.
Marshall, 547 U.S. 293, 311 (2006).

Moreover, LN Management’s sloppiness in making its
renewed motion before the district court, despite having
been granted several months for jurisdictional discovery in
2017, raises the inference that it was not sufficiently diligent
or serious about joining the estate to the quiet title action.
28 LN MGMT. V. JPMORGAN CHASE BANK

This suspicion persists on appeal, due to LN Management’s
continued conflation of the concepts of the estate versus its
representative versus descendants of the decedent, and due
to LN Management’s generally cavalier language. (E.g.,
“The district court should have allowed substitution of the
Estate, (or an individual representing the Estate if it or Chase
was so concerned)[.]” (Emphasis added.)) In sum, we
certainly cannot say that the trial judge abused his discretion
by denying a motion to substitute, made in this form and with
such deficiencies after so much litigation. Thus, diversity
jurisdiction continues to exist.

IV. Conclusion

For the foregoing reasons, the judgment of the district
court is VACATED and, holding that jurisdiction exists and
the Federal Foreclosure Bar applies, we REMAND the case
for proceedings in conformity with this opinion. 10

10
Costs on appeal shall be taxed against LN Management.