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Date: 10-20-2017

Case Style:

Johnathan Jones v. Law Vegas Metropolitan Police Department

Ninth Circuit Court of Appeals Courthouse - San Francisco, California

Case Number: 14-17288

Judge: Alex Kozinski

Court: United States Court of Appeals for the Ninth Circuit on appeal from the District of Nevada (Clark County)

Plaintiff's Attorney: Dale Galipo (argued) and Eric Valenzuela, Law Offices of
Dale K. Galipo, Woodland Hills, California, for Plaintiffs-

Defendant's Attorney: Craig R. Anderson (argued) and Micah S. Echols, Marquis
Aurbach Coffing, Las Vegas, Nevada, for Defendants-

Description: We consider whether police officers are entitled to
qualified immunity when they’re alleged to have caused the
death of a suspect by using tasers repeatedly and
simultaneously for an extended period.
In the early morning of December 11, 2010, Officer Mark
Hatten of the Las Vegas Metropolitan Police Department
pulled over Anthony Jones for a routine traffic stop. Hatten
ordered Jones out of the car so he could pat him down for
weapons. Jones obeyed at first but then started to turn toward
Hatten. Scared of the much larger Jones, Hatten drew his
firearm, pointed it at Jones and ordered him to turn back
around. Instead, Jones sprinted away.
Hatten called for backup and pursued Jones. Hatten
didn’t believe deadly force was necessary because Jones
hadn’t threatened him and didn’t appear to have a weapon.
1 At summary judgment, we “view the evidence in the light most
favorable” to the nonmoving party and draw all reasonable inferences in
that party’s favor. Newmaker v. City of Fortuna, 842 F.3d 1108, 1111
(9th Cir. 2016). “[Excessive] force cases pose a particularly difficult
problem” under this standard when the defendant officers are the only
surviving witnesses. Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994).
To ensure that the officers don’t “tak[e] advantage of the fact that the
witness most likely to contradict [their] story . . . is unable to testify,” we
“may not simply accept what may be a self-serving account by the police
officer;” we must verify that account with circumstantial and objective
evidence in the record. Id.
As he waited for other officers to arrive, Hatten used his taser
to subdue Jones. Hatten fired his taser twice, causing Jones’s
body to “lock up” and fall to the ground face down with his
hands underneath him. Hatten proceeded to kneel on Jones’s
back in an attempt to handcuff Jones, keeping his taser
pressed to Jones’s thigh and repeatedly pulling the trigger.
Hatten continued to tase Jones even after backup arrived.
Backup consisted of four officers: Richard Fonbuena on
Hatten’s right side, who helped handcuff Jones; Steven
Skenandore, who controlled Jones’s legs and feet; Timothy
English at Jones’s head, who applied a taser to Jones’s upper
back; and Michael Johnson, who arrived last and ordered the
tasing to stop. Johnson wanted his officers to “back off on
the tasers so that [Jones’s] muscles would relax.” According
to Johnson, Jones “didn’t look like he was physically
resisting” and there were “enough officers” to take Jones into
custody. In all, Jones was subjected to taser shocks for over
ninety seconds: Hatten tased Jones essentially nonstop that
whole time—with some applications lasting as long as
nineteen seconds—and, for ten of those seconds, English
simultaneously applied his taser.
Once the officers stopped tasing Jones, his body went
limp. They sat him up but Jones was nonresponsive and
twitching; his eyes were glazed over and rolled back into his
head. The officers tried and failed to resuscitate him. Jones
was pronounced dead shortly thereafter. The coroner’s report
concluded that “police restraining procedures”—including the
tasings—contributed to Jones’s death.
Jones’s parents sued the Las Vegas Metropolitan Police
Department and all of the officers involved in restraining
Jones. They alleged Fourth and Fourteenth Amendment
violations as well as various state law torts. The district court
granted summary judgment for the defendants on all claims.
Because plaintiffs make no arguments regarding the district
court’s dismissal of the Monell claim against the police
department, we deem that claim waived. See Hayes v. Idaho
Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017). Plaintiffs
also voluntarily dismissed their claims against Officers
Fonbuena and Skenandore, so we consider only the claims
against Officers Hatten and English.
A. Rule 17 Relief
Fourth Amendment claims are “personal” and may not be
“vicariously asserted.”
Moreland v. Las Vegas Metro. Police
Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). Section 1983
actions, however, may be brought by “the survivors of an
individual killed as a result of an officer’s excessive use of
force,” provided state law authorizes a survival action. Id.
(citing 42 U.S.C. § 1988(a)). Nevada authorizes survival
actions by the “executor or administrator” of a decedent’s
estate. Nev. Rev. Stat. § 41.100(3) (1997); see also
Moreland, 159 F.3d at 369–70. Plaintiffs didn’t assert their
Fourth Amendment claims as executor or administrator of
Jones’s estate and thus didn’t have standing to bring these
claims. The district court denied relief under Rule 17 by
refusing to provide plaintiffs an opportunity to substitute the
proper party. We review Rule 17 determinations for abuse of
discretion. Esposito v. United States, 368 F.3d 1271, 1273
(10th Cir. 2004).
Courts “may not dismiss an action for failure to prosecute
in the name of the real party in interest until, after an
objection, a reasonable time has been allowed for the real
party in interest to ratify, join, or be substituted into the
action.” Fed. R. Civ. P. 17(a)(3). The purpose of the rule is
“to prevent forfeiture of a claim when an honest mistake was
made.” Goodman v. United States, 298 F.3d 1048, 1054 (9th
Cir. 2002); see also 6A Charles Alan Wright et al., Federal
Practice and Procedure § 1555 (3d ed. 2017) (noting the
“judicial tendency to be lenient when an honest mistake has
been made in selecting the proper plaintiff”). This is
consistent with our longstanding policy in favor of deciding
cases on the merits. See, e.g., Dahl v. City of Huntington
Beach, 84 F.3d 363, 366 (9th Cir. 1996); Russell v.
Cunningham, 279 F.2d 797, 804 (9th Cir. 1960).

Defendants argued in their summary judgment motion
that neither Jones’s father nor the estate had standing to bring
Fourth Amendment claims. Plaintiffs responded that the
complaint did name parties with standing—the father and the
estate, because the father was the administrator of the estate.
This was wrong under Nevada law, which called for naming
the father as administrator. Plaintiffs thus named the right
person but in the wrong capacity. The district court correctly
determined that no proper plaintiff had been named for the
Fourth Amendment claims.
We have held that Rule 17 relief is available where
counsel makes an “understandable” error in naming the real
party in interest. Goodman, 298 F.3d at 1053–54. Plaintiffs
claim they made an “honest and understandable mistake” by
naming Jones’s estate and father as plaintiffs (rather than
naming the father as administrator of Jones’s estate) because
the district court had approved a stipulation amending their
complaint to name Jones’s estate as a plaintiff.2 While this is
hardly the best excuse, it was not unreasonable for plaintiffs
to have construed the district court’s approval of the
stipulation as a determination that they had named the proper
party. The district court’s summary judgment ruling
disabused plaintiffs of this notion. Once this occurred, Rule
17 required the district court to give plaintiffs a reasonable
opportunity to cure their error: A court “may not dismiss an
action for failure to prosecute in the name of the real party in
interest until, after an objection, a reasonable time has been
allowed.” Fed. R. Civ. P. 17(a)(3) (emphasis added). Rather
than enter judgment immediately after noting the deficiency,
the district court should have given plaintiffs a reasonable
opportunity to substitute the right party. See, e.g., Esposito,
368 F.3d at 1272 (reversing district court’s dismissal because
plaintiff’s mistake was honest, even if not understandable, so
court was required to give plaintiff an opportunity to
substitute); Jaramillo v. Burkhart, 999 F.2d 1241, 1246 (8th
Cir. 1993) (reversing district court’s dismissal because
plaintiff wasn’t given a reasonable opportunity to substitute);
Kilbourn v. West. Sur. Co., 187 F.2d 567, 571–72 (10th Cir.
1951) (reversing summary judgment so that real party in
interest could be substituted); cf. Kuelbs v. Hill, 615 F.3d
1037, 1042–43 (8th Cir. 2010) (holding that district court
gave plaintiffs reasonable time to substitute party when it
2 Plaintiffs filed an amended complaint representing that Jones’s
father had “filed the necessary documents . . . to be appointed as the
special administrator” of the estate. Although the petition and order
appointing Jones’s father as special administrator appears to have been
signed and dated at that time, the document is stamped with a filing date
a few months later. Nevertheless, Jones’s father was the administrator by
the time the district court entered judgment against plaintiffs. The
problem is that he wasn’t named as such in the complaint.

ordered them to address the issue and waited six months
before dismissing).3
The district court noted a “disconnect” between the date
plaintiffs claimed their probate order appointing Jones’s
father as administrator was filed and the actual filing date of
that order. See supra note 2. But this “disconnect” had little
to do with plaintiffs’ honest mistake—naming the estate, not
the administrator of the estate, as a plaintiff—for which our
case law requires relief under Rule 17. See, e.g., Goodman,
298 F.3d at 1053–54. Plaintiffs explained that they thought
they had named the proper plaintiffs, and they did have the
probate order signed—though not filed—at the time of the
first amended complaint. They were entitled to a reasonable
amount of time to correct their error.
Within five days of the district court’s ruling, plaintiffs
filed a motion seeking leave to do so. They represented that
they had the proper party ready to substitute in the action
because Jones’s father was the administrator of the estate.
Although they relied on Rule 15, the motion was one they
were permitted to file under Rule 60(b)(1) and sought relief
to which they were entitled under Rule 17. Defendants
haven’t argued that the citation to the wrong rule prejudiced
them in any way. The district court didn’t rule on this motion
3 Defendants argue that plaintiffs received the necessary notice
earlier when defendants pointed out the deficiency in their motion for
summary judgment. But plaintiffs disputed defendants’ interpretation of
the proper party, and plaintiffs’ interpretation, though ultimately wrong,
wasn’t frivolous. Plaintiffs were entitled to await the district court’s ruling
before being deemed to have received notice for purposes of Rule 17.
Holding otherwise would pressure plaintiffs to adopt their opponents’
interpretation even if they’re convinced that they did everything right.
until months after plaintiffs had filed their timely notice of
appeal, which deprived the district court of jurisdiction.
Consistent with the text of Rule 17 and our case law
interpreting it, we conclude that the district court abused its
discretion by failing to give plaintiffs a reasonable
opportunity to substitute the proper party and thus cure the
defective complaint.
B. Qualified Immunity
Defendants argue that we should nonetheless affirm the
district court’s judgment on qualified immunity grounds.
Although the district court didn’t reach the issue on the
relevant Fourth Amendment claims, both parties briefed it
below, so the issue is ripe for our consideration. Because the
issue will no doubt arise on remand, we exercise our
discretion to review it.
“The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(citation omitted). To overcome a claim of immunity,
plaintiffs must plead “facts showing (1) that the official
violated a statutory or constitutional right, and (2) that the
right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “A
Government official’s conduct violates clearly established
law when, at the time of the challenged conduct, ‘[t]he
contours of [a] right [are] sufficiently clear’ that every
‘reasonable official would have understood that what he is
doing violates that right.’” Id., at 741 (alteration in original)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The Supreme Court doesn’t “require a case directly on point,
but existing precedent must have placed the statutory or
constitutional question beyond debate.” Id.
1. Reasonable Conduct
In evaluating Fourth Amendment claims, we ask whether
the officers’ conduct was reasonable under the circumstances.
See Scott v. Harris, 550 U.S. 372, 383 (2007). Viewing the
facts in the light most favorable to plaintiffs, see Saucier v.
Katz, 533 U.S. 194, 201–02 (2001), we must determine
whether the officers’ conduct was reasonable using the
Supreme Court’s Graham v. Connor factors: “the severity of
the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight.” 490 U.S. 386, 396 (1989). The most important factor
is whether the suspect posed an immediate threat. Mattos v.
Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc)
[hereinafter Mattos II]. In examining the threat, “a simple
statement by an officer that he fears for his safety or the
safety of others is not enough; there must be objective factors
to justify such a concern.” Deorle v. Rutherford, 272 F.3d
1272, 1281 (9th Cir. 2001). “A desire to resolve quickly a
potentially dangerous situation is not the type of
governmental interest that, standing alone, justifies the use of
force that may cause serious injury.” Id.
Here the officers’ use of force began appropriately
enough: Despite Jones’s large size and the fact that he had
run away from a traffic stop, he had neither threatened Hatten
nor committed a serious offense, and he didn’t appear to have
a weapon. Based on these facts, Hatten believed that
something less than deadly force was justified, so he used his
taser to subdue Jones. This decision was consistent with our
case law, as we’ve held that use of tasers can be intermediate
force. See Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir.
2010). Using a taser to stop Jones and place him under arrest
was reasonable under the circumstances.
As the situation evolved, however, the justification for the
use of force waned. The four other officers at the scene gave
somewhat inconsistent accounts about their continued use of
force. What is clear is that Hatten continued to apply his
taser to Jones and English also applied his taser twice, even
as Jones was being handcuffed. By the time Jones was prone
and surrounded by multiple officers, there would have been
no continuing justification for using intermediate force:
Jones was on the ground after his body “locked up” as a result
of repeated taser shocks; he had no weapon and was making
no threatening sounds or gestures. There is a triable issue of
fact as to whether the officers were reasonable in the degree
of force they deployed at that point.
Evidence presented at summary judgment would support
a jury finding that the officers’ repeated and simultaneous use
of tasers for over ninety seconds was unreasonable. Taser
International provided users with product warnings that the
risk of “serious injury or death” from tasers increases with
multiple and simultaneous applications. Hatten testified that
such use was discouraged, though not forbidden, by the Las
Vegas Metropolitan Police Department. Consistent with
Taser’s product warnings, the officers were instructed that
repeated taser applications could contribute to serious injury
or death, particularly when the target is subject to certain risk
factors, like struggling, being overweight or using drugs or
alcohol. The officers knew that Jones was subject to two of
these risk factors: He was overweight and struggled.
Plaintiffs also presented a declaration from a police
practices expert who opined that reasonably trained officers
would have known that repeated and simultaneous taser use
poses a risk of serious injury or death. The expert further
explained that “[t]he normal cycle for the X-26 taser is five
(5) seconds” but that the taser will continue to discharge
electricity “as long as the operator holds the trigger down.”
Hatten’s X-26 taser frequently went past the five-second
application cycle—with some shocks lasting eleven seconds,
thirteen seconds (twice) and nineteen seconds. This left burn
marks on Jones’s thigh, forearm and hand.
Based on this evidence, a jury could reasonably conclude
that the officers knew or should have known that their use of
tasers created a substantial risk of serious injury or death.
Thus, there are triable issues of fact as to whether the
officers’ continuous and simultaneous tasing was reasonable
under the circumstances, and whether the officers were on
notice that the force they used could cause serious injury or
4 We’ve held that a single taser shot can “intrude[] upon the victim’s
physiological functions and physical integrity in a way that other nonlethal
uses of force do not.” Bryan, 630 F.3d at 825–26. In light of this,
“we agree[d] with the Fourth and Eighth Circuit’s characterization of a
taser shot [and] . . . therefore conclude[d] that tasers like the X[-]26
constitute an ‘intermediate . . . quantum of force.’” Id. (citations omitted).
Here, Officers Hatten and English went far beyond a single shot: They
discharged their tasers multiple times and simultaneously. This may raise
the “quantum of force.”
2. Clearly Established Law
Because defendants may have committed constitutional
violations, we turn to the second element of qualified
immunity: whether there was clearly established law.
Defendants rely on Brooks v. City of Seattle, 599 F.3d 1018
(9th Cir. 2010), vacated on reh’g en banc sub nom., Mattos
II, 661 F.3d 433, as clearly established law on tasers at the
time of Jones’s death. In that case, we held that it wasn’t
excessive to use three five-second shocks on a pregnant
woman who was resisting arrest after a traffic stop. Id. at
1030–31. We explained that taser use in that case was “less
than . . . intermediate” force because it was “more on par with
pain compliance techniques.”5 Id. at 1027–28. But, as we
explain above, continuous, repeated and simultaneous tasings
are different from isolated shocks.6 Any reasonable officer
would have known that such use can only be justified by an
5 Brooks was overturned when it was taken en banc in 2011. We
held that a reasonable fact finder could conclude that the use of force was
excessive. Mattos II, 661 F.3d at 446. We noted the “overwhelmingly
salient factor” was that Brooks was tased three times in less than one
minute. Id. at 445. “Three tasings in such rapid succession provided no
time for Brooks to recover from the extreme pain she experienced, gather
herself, and reconsider her refusal to comply.” Id. Three tasings in less
than one minute allow for over twenty seconds between shocks. That’s
materially different from continuous use for ninety seconds.
6 Defendants also rely on Marquez v. City of Phx., 693 F.3d 1167
(9th Cir. 2012), a post-Mattos II case involving the repeated use of a
single taser. Their reliance is misplaced. There we found that the officers
were justified in tasing the decedent with nine five-second applications
because the decedent was resisting violently and posed a serious threat to
the officers and others. Id. at 1174–76. Jones, by contrast, offered no
resistance and was lying face down on the ground. Marquez also didn’t
involve simultaneous and prolonged taser applications, as occurred here.
immediate or significant risk of serious injury or death to
officers or the public. See, e.g., Scott, 39 F.3d at 914 (“An
officer’s use of deadly force is reasonable only if the officer
has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the
officer or others.”) (internal quotation marks and citation
omitted). Such force generally can’t be used on a prone
suspect who exhibits no resistance, carries no weapon, is
surrounded by sufficient officers to restrain him and is not
suspected of a violent crime.
Given that there was clearly established Fourth
Amendment law and a jury could reasonably conclude that
the officers used excessive force, the question of qualified
immunity must proceed to trial.7
7 Plaintiffs raise a separate Fourth Amendment claim: Hatten lacked
reasonable suspicion to stop Jones’s vehicle in the first place. Officers are
required to have at least reasonable suspicion to stop a vehicle for
investigatory purposes. Delaware v. Prouse, 440 U.S. 648, 663 (1979);
United States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2000). Hatten
claimed that he pulled Jones over for driving without his headlights on and
failing to stop at a red light. But Hatten’s account of the stop changed
between his initial “use of force” interview with the police department and
his deposition. At first, Hatten justified the stop based only on Jones’s
headlights and said that Jones had stopped at the light. Surveillance video
of the traffic stop, however, showed that Jones’s headlights were on when
Hatten stopped him. In his deposition, Hatten then claimed that Jones
turned his lights on once Hatten started following him, and that he pulled
Jones over after he observed Jones perform what he called “a California
rolling stop” at a red light before making a right turn. These changes in
Hatten’s account undermine his credibility and preclude us from accepting
his testimony at face value. See supra note 1. There’s thus a triable issue
of fact as to whether the stop was supported by reasonable suspicion.
Fourth Amendment jurisprudence on traffic stops is well-established, so
C. Fourteenth Amendment Claim
The district court granted summary judgment on
plaintiffs’ Fourteenth Amendment claim both on the merits
and because it found that parents of an adult child lack a
cognizable constitutional claim as to police mistreatment of
that child. But our case law does recognize such a
constitutional claim. See, e.g., Johnson v. Bay Area Rapid
Transit Dist., 724 F.3d 1159, 1169 (9th Cir. 2013) (“[W]e
have recognized a parent’s right to a child’s companionship
without regard to the child’s age.”) (collecting cases).
Because parents have a constitutionally protected interest
in the companionship of their children, id. at 1168–69,
“[o]fficial conduct that ‘shocks the conscience’ in depriving
parents of that interest is cognizable as a violation of due
process.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir.
2010) (citation omitted). In cases like this, where officers
must react quickly to a rapidly changing situation, the test is
whether the officers acted with a purpose of causing harm
unconnected to any legitimate law enforcement objective.
See Porter v. Osborn, 546 F.3d 1131, 1137, 1140 (9th Cir.
Even assuming all the facts plaintiffs allege, there’s no
evidence that the officers acted with a purpose of harming
Jones that was unconnected to a legitimate law enforcement
objective. Therefore, we affirm the district court’s dismissal
of the Fourteenth Amendment claim.
Hatten isn’t entitled to qualified immunity on that claim. We make no
judgment as to whether plaintiffs are entitled to assert this claim through
their survivorship action, or if there are any damages available.
D. State Law Claims
Plaintiffs also present state law claims for false
arrest/imprisonment, battery and negligence. The district
court held that Nevada’s discretionary immunity statute
shielded the officers from liability. The statute precludes
claims against state officers based on acts or omissions
relating to a “discretionary function,” even if that discretion
is abused. Nev. Rev. Stat. § 41.032(2) (1987). But decisions
made in bad faith, such as “abusive” conduct resulting from
“hostility” or “willful or deliberate disregard” for a citizen’s
rights, aren’t protected under the immunity statute even if
they arise out of a discretionary function. Davis v. City of
Las Vegas, 478 F.3d 1048, 1060 (9th Cir. 2007).
Because clearly established law isn’t an element in the
state immunity analysis, we look only to whether a reasonable
jury could find that the officers’ use of force indicated
hostility or willful disregard of Jones’s rights. Considering
all of the facts alleged in the light most favorable to plaintiffs,
we find that there’s a triable issue of fact with regards to the
battery and negligence claims. See Mattos II, 661 F.3d at 448
n.8 (denying state immunity for assault and battery claims
because a jury could find that the use of force was excessive
and violated state law, even though the federal claims were
barred by qualified immunity). While there’s no evidence
that any of the officers acted out of hostility or improper
motive, there’s a factual dispute as to whether the repeated
and simultaneous tasings were so excessive under the
circumstances that they amounted to willful or deliberate
disregard of Jones’s rights. We therefore remand plaintiffs’
battery and negligence claims.
The false arrest/imprisonment claim, however, fails, even
viewing the facts in the light most favorable to plaintiffs. In
Nevada, false arrest/imprisonment requires the arrestor to
restrain another’s “liberty under the probable imminence of
force without any legal cause or justification.” Hernandez v.
City of Reno, 634 P.2d 668, 671 (Nev. 1981) (citation and
quotation marks omitted). Officer Hatten restrained Jones
with sufficient legal justification: Jones fled from Hatten
during a routine traffic stop. There’s no evidence that
Hatten’s subsequent decision to arrest Jones lacked
justification—let alone that it was made in bad faith. We
affirm the dismissal of the false arrest/imprisonment claim.
N.R. SMITH, Circuit Judge, concurring in part and dissenting
in part:
I cannot conclude, as the majority does, that the district
court abused its discretion in dismissing Plaintiffs’ Fourth
Amendment claims because the Plaintiffs failed to name the
proper party in interest.1 “A district court abuses its
discretion when it makes an error of law, when it rests its
decision on clearly erroneous findings of fact, or when we are
left with a definite and firm conviction that the district court
committed a clear error of judgment.” United States v. 4.85
Acres of Land, More or Less, Situated in Lincoln Cty., Mont.,
546 F.3d 613, 617 (9th Cir. 2008) (internal quotation marks
1 I concur with all aspects of the majority opinion except for the Rule
17 analysis.
and citation omitted). None of these errors occurred in the
district court’s Rule 17 analysis. Further, we cannot reverse
the district court under the abuse of discretion standard unless
“the district court reache[d] a result that is illogical,
implausible, or without support in the inference that may be
drawn from the record.” Kode v. Carlson, 596 F.3d 608, 612
(9th Cir. 2010).
The district court dismissed the first and second claims
for relief (the Fourth Amendment claims) for lack of standing
based on Federal Rule of Civil Procedure 17. Rule 17(a)(1)
provides that an action cannot be prosecuted unless it is
asserted by the real party in interest. Thus, under Rule 17, a
claim must be dismissed if it is not brought by the real party
in interest. See Advanced Magnetics, Inc. v. Bayfront
Partners, Inc., 106 F.3d 11, 20 (2d Cir. 1997). The parties
agree that the named Plaintiffs (Johnathan Jones, Rosie Lee
Mathews, and the Estate of Anthony Jones) are not the proper
parties to assert the Fourth Amendment claims. Thus, we
start with the assumption that these claims must be dismissed.
The named parties do not have standing to bring them.
Rule 17(a)(3) does provide a limited exception to this
general rule. Rule 17(a)(3) provides that, (1) “when
determination of the right party to sue is difficult,” or
(2) when an understandable mistake [in naming the real party
in interest] has been made,” see U.S. for Use & Benefit of
Wulff v. CMA, Inc., 890 F.2d 1070, 1074 (9th Cir. 1989)
(citing Note of Advisory Committee on 1966 Amendment to
Fed. R. Civ. P. 17), courts “may not dismiss an action for
failure to prosecute in the name of the real party in interest
until, after an objection, a reasonable time has been allowed
for the real party in interest to ratify, join, or be substituted
into the action,” Fed. R. Civ. P. 17(a)(3).
Because the district court did not commit legal error or
reach an illogical or implausible decision in determining that
the Rule 17(a)(3) exception does not apply in this case, we
must affirm the district court (given our standard of review).
Further, even assuming the Rule 17(a)(3) exception does
apply, we must still affirm, because the district court satisfied
the requirements of Rule 17(a)(3) before dismissing the
Fourth Amendment claims. Finally, the Plaintiffs have never
made the argument that the majority now articulates for them.
The district court did not abuse its discretion in
determining that the Rule 17(a)(3) exception does not apply
to this case. The majority does not contend that
“determination of the right party to sue” was difficult; indeed,
that contention would have been difficult (if not impossible)
to make. Nevada law plainly states who can bring a survival
action. See Nev. Rev. Stat. § 41.100(3). The majority instead
concludes that the district court abused its discretion in
concluding that Plaintiffs’ mistake was not “understandable.”2
According to the majority, it was understandable that
Plaintiffs believed that they had named the proper party (in
the proper capacity), because the district court had approved
a stipulation that would amend their complaint to name
Decedent’s estate as a plaintiff. The district court did not
refuse this reasoning illogically, implausibly, or without
support for several reasons.
2 Although not explicitly stated, the majority also appears to expand
Rule 17’s application to every “honest mistake,” even if that mistake was
the product of willful blindness to the law’s requirements or lack of due
diligence. Such an expansion is improper, because it is unsupported by
our case law.
First, the district court correctly reasoned that the law was
so clear that the mistake was not understandable. The
Nevada law does not allow an estate to bring a survival
action. Yet Plaintiffs insisted in their briefs to the district
court—without ever citing any legal authority—that “the
Estate of Anthony Jones is a party that can assert its own
claims for relief.” This insistence, without support, that no
defect existed, was plainly wrong. Even the majority agrees.
Second, although the district court approved a stipulation
allowing Plaintiffs to amend the complaint to add the Estate
of Anthony Jones as a plaintiff, the district court never stated
or determined that the Estate of Anthony Jones was the
proper party to bring the Fourth Amendment claims. In fact,
the stipulation did not mention the Fourth Amendment claims
and, when the stipulation was proposed and signed, any
issues over the proper party in interest had never been raised.
Thus, it was not reasonable for Plaintiffs to interpret the
approved stipulation as an endorsement of the propriety of
their Amended Complaint.
Third, the district court found the reasons given for
Plaintiffs’ mistake to be disingenuous. Plaintiffs asserted in
their original and Amended Complaint that Johnathan Jones
had “filed the necessary documents with the Clark County
Probate Court to be appointed as the special administrator of
THE ESTATE OF ANTHONY JONES.” However, after the
motion for summary judgment was filed, it was clear that
Johnathan Jones had not in fact filed the necessary documents
to complete this process. Nevertheless, in Plaintiffs briefs to
the district court, they continually insisted that their original
assertion was accurate. Also important, Plaintiffs never
explained to the district court why they had to add the Estate
of Anthony Jones as a plaintiff if Johnathan Jones had filed
all the necessary documents to have legal standing to bring
the Fourth Amendment claims.
In sum, it was not an abuse of discretion for the district
court to conclude that Plaintiffs’ mistake was not
understandable when it was based on an unfounded
interpretation of the law and an inaccurate account of the
Even assuming that Plaintiffs had made an
“understandable mistake,” the district court did not abuse its
discretion in dismissing the Fourth Amendment claims. The
district court gave Plaintiffs ample time to substitute the real
party in interest, as Rule 17(a)(3) requires. Rule 17 requires
district courts to give plaintiffs “a reasonable time” to
substitute the real party “after an objection” has been made.
Defendants first objected that the real party in interest had not
been named in their motion for summary judgment, filed on
November 8, 2013. And yet, Plaintiffs did not seek to amend
their complaint to name Johnathan Jones in his capacity as
special administrator of Decedent’s estate until November 11,
2014—after the district court granted Defendants’ motion for
summary judgment on November 6, 2014. Thus, Plaintiffs
had a year to substitute the real party in interest after an
objection was made. The plain language of Rule 17 does not
require district courts to give plaintiffs “a reasonable time” to
substitute the real party in interest after the court has notified
them that the real party in interest has not been named (as the
majority suggests). Thus, the district court did not commit
legal error (and did not abuse its discretion) in dismissing the
Fourth Amendment claims after giving Plaintiffs a year after
the objection was made to substitute the real party in interest.
Moreover, Plaintiffs’ actions show they were on notice
that they had not named the proper party. Just ten days after
Defendants objected (on November 18, 2013), Plaintiffs filed
(in Nevada state court) the ex parte order naming Johnathan
Jones as special administrator of decedent’s estate, which had
been signed (but not filed) seven months earlier—on April 9,
2013. This filing finally gave legal effect to the order. See
Rust v. Clark Cty. Sch. Dist., 747 P.2d 1380, 1382 (Nev.
1987). Thus, on November 18, 2013, Johnathan Jones gained
the proper legal status to bring the Fourth Amendment claims.
However, Plaintiffs never sought to amend the complaint to
name the real party in interest until November 11, 2014, even
though (1) Johnathan Jones gained the proper legal status a
year earlier, and (2) Plaintiffs had previously acknowledged
in their brief to the district court that Nevada Revised Statute
section 41.100(3) extends the right to bring a survival action
to the official representatives of an individual’s estate. Thus,
Plaintiffs were given more than a reasonable amount of time
to substitute the real party in interest after they became aware
that Johnathan Jones did not have the proper status to assert
the Fourth Amendment claims. Accordingly, the district
court did not commit an error of law (and did not otherwise
abuse its discretion) in concluding that Rule 17(a)(3) did not
prevent the district court from dismissing the Fourth
Amendment claims.
Finally, the district court cannot have abused its discretion
in failing to grant relief that was never requested. Plaintiffs
have never argued to the district court that Rule 17(a)(3)
required the district court to allow them to name Johnathan
Jones, as administrator of Anthony Jones’s estate, as a party.
Even after the district court granted Defendants’ motion for
summary judgment, Plaintiffs still did not ever assert a Rule
17 defense; instead, they filed a Rule 15 motion and asserted
that “justice requires leave to amend.” Thus, Plaintiffs have
never even attempted to articulate to the district court why
their mistake in not naming the proper party in interest was
I agree that it is best to decide cases on the merits and I
agree that, absent this unreasonable mistake in failing to
name the proper party, this case should proceed to trial.
However, the majority here ignores the standard of review in
reversing the district court’s Rule 17 decision. Instead, it
reverses the district court on an argument never made by
anyone but it.
For all of these reasons, I would affirm the district court’s
decision to dismiss the Fourth Amendment claims pursuant
to Rule 17.


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