the plaintive can of how house had passed away that's under spewed to the unfortunate situation of fortune unfortunate facts surrounding his passing his wife mrs house was not notified that he had passed until the actual day when the complaint was followed was the final day of the statute of limitations to follow a lawsuit and by the time that she contacted counsel to notify hansell that he had passed  away there was only a few hours left to actually follow the lawsuit so it was a very unfortunate situation the other undisputed point is that under maryland law for the discrimination claim that mr house was pursuing to survive his death the claim would have to be brought in the name of the personal representative of mr house a state that is also undisputed and it was not brought my name of the personal representative of mr houses the question is whether the trial court abused its discretion by dismissing the case rather than allowing for the substitution of the estate of canada house as the or the personal representative of the estate of can house as the estate can receive the redress on his behalf that's the real parting interest under maryland law once he passes away his a state is allowed to assume that claim that maryland's survival statute provides that certain claims  substitution relates back to the date of the filing so the district court decided the complaint was annoying because it was followed in the name of a dead person but rule seventy three gets around that by saying no some reason that plaintive doesn't have capacity to suit orders otherwise the improper party and so then you substitute you know you having real life plaintiffs and a real live case and then you make a substitution but it seems that seems very different from when there is in fact no existing plaintiff at the time the suit is filed and well it doesn't seem to be most courts at least have held that that is not what rule seventeen contemplate well i don't think there's anything in rule seventeen a three at all nothing in the plain language that would suggest that that is correct there's nothing in the plain language that says that the care that's up to she is not allowed the plaintiffs who originally falls is deceased but it i  think the argument at least is that while it's sort of implied because there is no actual action into which it could make a substitution there's nothing to substitute there's no lawsuit because the plaintiff doesn't exists i know it seems semantic but single circuit court decision or supreme court decision or at all that suggested that this was the case and those decisions i think we're distinguishable and i can get to that but virtually all of those for the relation back to the moment when the complaint is filed the rule provides a way to get around that issue and when you look at the history the rule that makes sense because the history of the rule talks about it's the purpose of the rule vast majority of cases are cases where it was a living person but just the wrong living person is is there any instance in your view in which it would not relate that to the file that the language doesn't specifically have any exclusion but i think if you look at the the purpose and attention of the rule and some of the cases that were decided including a couple of cases that judge relied upon there discussion about the issue of whether a claim would be forfeited or not and at least i believe three of the five cases that judge russell or relied upon his decision were cases where yes the court said the original complaint was a no let's see we're not going to allow seven hundred and eighty three it would not relate back in cases where it doesn't matter that's another way of saying what you just said i think i'm not saying it wouldn't but i'm saying that would be a situation where i could see perhaps a court drawing a guideline and saying well if it doesn't matter then let him do whatever right because the law specifically in the in the in the visor e committee notes talks about the issue of forfeiture of a claim is one of the purposes of the rule so if there is no forfeiture of the claim then i think a judge would have discretion as lay the better route is to have what about what other possible other than it doesn't matter what other principle would limit relation back in you in your view on understanding of taking your your views are given what there are any other limitations that would i think i think there are two that i can think of and i'm not saying again that i would say that these automatically apply but i think in looking at an abuse of discretion for a trial judge  where the rule specifically says the trial judge may not dismiss without allowing for the substitution i think two additional situations that would come up would be number one where the original claim by the deceased plaintiff was the wrong claim so in three of the cases the judge russell relied on that was another fact that was important and the esposito case in the th circuit made a point of that in distinguishing a couple of the cases th judge russell a lot upon and said in those cases not only was the name department deceased but the claims that were brought up were the wrong claims that could not be revived so in some states you know let's say and it was in maryland you would be able to revive that claim so if you had brought a defamation claim and you said well we'd like to substitute in the personal representative a court would be perfectly within its rights to say no to because so one is it doesn't matter to you if you've got other problems was not be valid reason for the mistake if it was not an honest mistake or a reasonable mistake in the esposito case and i believe also committee knows it specifically talks about how this should these this rule should apply in situations where it's difficult to determine who the proper plaintiff should be were an honest mistake or a reasonable mistake i think the words understandable mistake is made that's exactly what happened here there was no estate created there was no personal representative that had been appointed we had no idea who the personal representative was unfortunately mr house passed away in california had him at a treatment center is why he wasn't notified until two days later we haven't even found his will this is a perfect situation and frankly when i read judge russell's decision i was concerned because what he seemed to be saying was well if you would file this in the name of a live person then we'd be fine so was i supposed to just poor person a bad name is wife  or child that what maryland law says you're supposed to do try to find someone who might plausibly be a personal representative of the state and go ahead and in good faith name that person i don't believe it says that at all ok i read that the statute the trust in the states provision that was cited in the palin's and i don't read it to say that at all but that seems like it would have been a logical thing to do so let me well and we we could have done that i mean right you know we credit the rules argument terms kind of these and things like that but is is another way of looking at that that the rules that we're supposed to operate on their dulled profile for the relief you're se consider how rare this situation is out of the hundreds of thousands or possibly millions of lawsuits that involved literally i was able to find three cases that allowed the substitution  and counsel and judge russell totals cited i think five or six cases all of which were district court cases it's an extreme and i've run out of time kind of answer the question here and here it's an extremely rare situation i think on that they said the rule applies the rule relates back and that gets rid of the whole no one t r counsel can i ask you one last question before it before we lose you yes i do want you to address the jurisdiction question that judge problem started with i don't want you to sit down without talking about that because i have to confess it's not obvious to me why and to cease person would have article three standing why the case wouldn't be right why there's not a lack of redress ability and because we know the jurisdiction is measured at the time the suit is filed there's no kind of relating back to fix a jurisdictional problem so can you just explain to me in sort of common sense terms how it to cease person has a concrete stake in the in the outcome and why the deceased persons injury can be remedied i mean i would rely on exactly the reasoning of the six circuit is that the statute specifically said you know when the substitution takes doesn't it if we have a jurisdictional problem like that the rules can fix that right if they can fix that because if you relate back to the moment when the complaint was filed but then there is no jurisdiction to tell them anymore ok so you're sure the jurisdictional problem that's what the six circuit said in that case was that there is no durst actual problem because the relation back takes you back to the moment that the lawsuit was filed so what we had to do was look see what their jurisdiction over the personal representative the personal representatives have a legal interest in pursuing hayes because at the moment it was filed its fall and that party's name not mr house's name that's that's i think that's the purpose of the statute is to for these types of situations i don't think it's any different than a situation where cases fall in the name of a corporation rappahannock which the company inc and it turns out that the actual proper name is robert hahn it was your company l l c and there is  representative and those continue from the moment of that and i don't see any reason why they can't relate back once the personal representative is then put into the case as the  two separate issues the real party and interest under rule seventeen which is a rule civil procedure not a stature and article three standing in fact this court just a couple months ago addressed that issue on the exact same context as this case but address that precise issue and explain our district court it erred in finding that a putative plaintiff did not have article three standing when really what it meant was that that party which was a debtor who had gone through bankruptcy that she wasn't the real party in substitution an amendment under rule seventy in this case and i mean no disrespect when i when i say these things that that's what this case is about a dead person filed a lawsuit a dead person does not have an injury in fact that can be redressed through the lawsuit so help me understand i'm glad you brought up martin i had to ask you about how do i distinguish tell me understand how i distinguish between the problem being the real party  distinguish between it being a redress ability problem write an article three problem which you acknowledge here are described here and a real party in interest problem that we saw and the debtor contacts right in in both scenarios they look somewhat similar i agree they are distinguished would help me understand how do you distinguish those two ideas what's the difference between a plaintiff who lacks article three standing and a plaintiff who's the wrong real party in interest i think here there's a couple things that distinguish you know march and that answer your honor's question the personal representative the estate of mr house has may have an interest in his claim they don't have an interest in this punitive action because it was a novelty from the start there was no jurisdiction in federal court from day one as and understand that moment that's the conclusion but why meaning you couldn't in since you might describe the debtor the same way right the debtor had no ability to bring that claim in federal court well just like a dead man as this court actually pointed out in explaining the district court's error the debtor who was the underlying injured party and was trying to assert essentially a tort claim that in the end the district court's view belonged to the estate of the trustee and not to the debtor the debtor had been injured and could receive compensation in could be in that injury could be redressed it may turn out that that so him are now so based on that distinction if mark now was the opposite so instead of the debtor bringing the suit and the real party in interest at inception being the trustee if you flip that around would you have the opposite problems or other words if the trustee brought a claim that under bankruptcy rules was not properly assigned to the trustee but remained with the debtor would that be a real progress real person an interest group part interest problem or would that be in article three probably i think it was sort of where i'm trying it i don't mean to pump but i think it depends on the facts i think if the facts show that the trustee you know on the on the face of the complaint can allege an injury to the or presumably the estate not the trustee personally to the estate that would be redress of or through a law suit even if it turns out that for example as in march no this court concluded that no the claim always really was the debtors claim because the trustee i think you'd given it up at the end of the claimants under bankruptcy law belong to the debtor even if that turns out to be the case well that's a real party in interest issue in the debtor should be substituted for the trustee in that case but the trustee has standing and to state the obvious the trustee in that hypo exists is a is a living entity is a pointed by that you know  where within the article three bucket do you place this as a problem and so you can think about a couple possibilities right one being redress ability that's what a judge called a mom talked about is the need for adversarial parties might be another place within the article three bucket that you might place it we could talk about some others but i'll leave you to answer the question of where when you claim this the article three problem  dead man filing a suit i think redress ability is probably the number one i think case or controversy i mean there's no controversy and again i don't mean to sound flip in any way or disrespect me but there's no case or controversy between my client mitra and the dead person i mean they're just there isn't i mean there's nothing they could do they can't live again against the person they can't pretty if they lose the case the can't you know pay compensation and that's why in modern law under modern law in maryland and where this case went away that's changed under modern jer's practice but the reason there's a whole system for dealing with that is because of the obvious fact that a dead person is not a legal entity that can bring a lawsuit and i think it's true whether we're talking state or federal court i think it is much more force in a case like this in federal court where we have article three i mean some states as as we know ever more liberal rules for standing allow for advisory opinions and so forth one federal court so what i think it's even more true in federal court that a party that does not exist in right this substitute will work for mr ass and he did that just to have the name of a hearse would we have a standing problem here i think you yes i think you would i think that so your argument would problem i think that there's still a standing issue if he files if you just picks a name if you know his paralegal a lawyer you know has to put a name in there he puts it in there is a placeholder in files that lawsuit i think the answer is no i think we're in maryland law i think provides as as chairs asked counsel but i think maryland law provides a mechanism so that a claim like this not just one i can get into others but a mechanism where with the article three standing in the complaint that the problem i fairly well because the paralegal hasn't been really everywhere they're not injured because the legal age and they were are well if it if the allegations are the same as in this case of the paralegal you know joan smith you know by paralegal then there's no question that that's who that is and then the allegations in the complaint are that kenneth howe's worked at this fast food place and that he was discriminated against on the basis of a disability and he is alleging you know he filed with the e that those folks just like the actual personal representative when they hear shoes are venturing appointment as standing and so that that would have been the solution or when a personal representative was appointed he certainly could have filed a lawsuit at that point  made an argument for equitable tolling if that was necessary not conceding that it would have been valid because there are steps that could have been taken that would not have been as i think he claims in the brief would have been fraud on the court your hypothetical if you tried that and hid the fact that this was same issue i think you know maybe you would call this one more excusable it certainly it wasn't a mistake i mean just to be clear i don't think you need to get there because that's really when you get into a role seventeen analysis but you know mitt i think is a matter of legal matter for our well for article three standing i think that that there is a real difference i think a mistake because he believes that he can file a lawsuit in the name of a dead person and then change it later i don't think solves the standing absolutely i think if the court decides that a dead person can file a lawsuit in federal court and you move on to the rule seventeen issue i think at that point i think you can you have to parse what kind of mistake was there was taken here i don't think it would be the kind of mistake that rule seventeen applies to but i guess i don't think you need to get there it again because it wasn't an honest or understandable mistake he knew he was filing this something some of your best way but again i think the straightforward way to address this case is that somebody who has passed away unfortunately cannot file a lawsuit in federal court can ask a question about appellate standing sure i mean it would follow if you're right about that seaton would not have standing to file this notice of appeal but no formal motion to intervene to substitute was ever filed by these somebody representing the state and the district court they did not participate the only thing that ever happened now i filed a motion to substitute i don't understand no the only thing that i got that i believe that the district court record reflects is that in response seven a big party seven months after the lawsuit was filed in seven months after counsel was aware that mr house passed away before the lawsuit was filed in response to our motion for somebody else representing the state never dissipated in any way that the court didn't try to intervene so and the fact is that this idea you know we have these this line of cases that you discussed this nonparty standing correct and your they had moved to intervene and had to give in status as an intervenor that would be different if they had not been granted almost by definition then i mean the nonparty standing almost by definition is applying to folks who did not intervene because they intervened there now pardi you know there are parties to appeal right so it seems like an odd line to say well if they didn't intervene and it seems like at least some of our cases it suggested where individuals or participated to an extent so that they're essentially i think that the terms of privy to the parties privy to the case in the end affected by the judgment so that it's a classic use would be somebody who objects it to a class action settlement or some settlement because they have an interest in the case but don't formally intervene aren't a named party courts of tradition that i don't know whether this court has a space on that but i know there are circuit court cases saying in that case that a judge an army obviously has participated they want  is overruled they want to take that up in the court of appeals they have sufficient standing to raise that issue and there may be other circumstances where such a not only who doesn't formally intervene sufficiently participants in the district court didn't hew to the nothing but legal argument when it comes to to anybody besides mr house in your view sort of order of decision sort of analysis we've got to address the article three question before we address the appellate jurisdiction argument is your colleague on the final two i do understand that it was either you state or the personal representative on the notice of appeal but i don't actually see a grief from them are they here on appeal as you understand it you start by just clarifying that for me whether you state here on appeal are not well i believe the state is here on appeal through the personal representative and we follow the notice of appeal of appeal we follow it on behalf of mr house and the personal representative for the state they were named in the notice of appeal and we listened in the papers that we submitted to the court we didn't put them in the caption because they had never been in a caption previously so i didn't think it was proper to do that i didn't make any sense since they were not a particle o they were not allowed to become a party but they have participated below in that we requested that the trial court allow pursuant to rule seven hundred and eighty three dollars the substitution of the personal representative and that was are in the in the meetings seventeen a does more than merely provide relation back it provides that substitution quote shall have the same effect as the action had been commenced in the name of the real party in interest so in some ways if you agree that article three standing is distinct from capacities to and real party in interest there are different ideas right yes yes so that case is dealing with like martinez is dealing with a real party in standing while i think it's the same exact issue of applied in six circuit case it would have been any different and i think that because it has the same effect as if the personal recess the the board i don't know how you go and you follow the case and you go through discovery and go through ok's and then come back later and say oh well the case never existed from the beginning even though there is a rule that specifically says we go