FILED

United States Court of Appeals

Tenth Circuit

June 14, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MISTY RALEY, individually and as

parent and next friend of C.G., W.G.,

and C.A.G., minor children,

Plaintiff-Appellant,

v.

HYUNDAI MOTOR COMPANY,

LTD., a Korean corporation; and

HYUNDAI MOTOR AMERICA, a

California corporation,

Defendants-Appellees.

No. 10-6080

Appeal from the United States District Court

for the Western District of Oklahoma

(D.C. No. 08-CV-00376-HE)

John M. Merritt, Merritt & Associates, P.C., Oklahoma City, Oklahoma, for

Plaintiff-Appellant.

Gene C. Schaerr, Winston & Strawn LLP, Washington, D.C. (Jacob R. Loshin,

Winston & Strawn LLP, Washington, D.C.; James A. Jennings, Linda Kaufmann

and Derrick Teague, Jennings, Cook & Teague, Oklahoma City, Oklahoma; and

Thomas N. Vanderford, Jr., Hyundai Motor America, Fountain Valley, California,

with him on the brief) for Defendants-Appellees.

Before LUCERO, McKAY, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.
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Can you appeal a final judgment rendered against someone else? 

Especially when you aren’t a named party to the lawsuit and voluntarily left the

case long ago? At least generally, and specifically in this case, the answer is no. 

Misty Raley brought this lawsuit against Hyundai alleging that a car it

manufactured was defectively designed and responsible for injuries she suffered

in an accident. But before trial began, Ms. Raley filed a motion pursuant to Fed.

R. Civ. P. 25(c) asking the district court to substitute BancFirst in her place as

“the real party in interest” and sole plaintiff in the case. Aplt. App. Vol. 5 at

1513. Ms. Raley explained that a state probate court had appointed BancFirst to

serve as guardian for her and her minor children. In light of this development,

she represented, all “interest” in the lawsuit had been “transferred” to the bank, to

the exclusion of herself and her children. Aplt. App. Vol. 5 at 1514. 

Hyundai disputed this. The company argued that substitution under Rule

25(c) would be improper because Ms. Raley, not the bank, remained the real party

in interest in the lawsuit. The company argued, as well, that any substitution

should take place only pursuant to Rule 25(b), not Rule 25(c) — though, the

company stressed, Ms. Raley hadn’t sought relief under Rule 25(b) or

demonstrated the sort of incompetency necessary to invoke it. In the end, the

district court overruled Hyundai’s objections, granted Ms. Raley’s motion, and
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substituted BancFirst as the party-plaintiff in place of Ms. Raley, both in her

individual capacity and as the representative of her children.

After a lengthy jury trial, Hyundai prevailed. But when entering judgment

on Hyundai’s behalf, the district court mistakenly identified Misty Raley, not

BancFirst, as the losing party-plaintiff. Adding to the confusion, Ms. Raley then

proceeded to file a notice of appeal, listing herself — but not BancFirst — as the

plaintiff-appellant seeking to undo the judgment. For its part, BancFirst did not

file a notice of appeal. 

Not long after the appeal was docketed, the district court noticed its clerical

error. After obtaining leave pursuant to Fed. R. Civ. P. 60(a) & 62.1, the district

court issued an amended judgment identifying BancFirst, not Ms. Raley, as the

only party-plaintiff to its judgment. In response, Ms. Raley filed another notice

of appeal, this time seeking to contest the district court’s Rule 60(a) ruling and

the amended judgment. Again, she listed herself, not BancFirst, as the only

plaintiff-appellant in the case. Again, BancFirst filed nothing.

It is this that poses a problem. Generally speaking, only named parties to a

lawsuit in the district court may appeal an adverse final judgment. See United

States ex. rel. Eisenstein v. City of New York, 129 S. Ct. 2230, 2234-35 (2009);

Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam); Karcher v. May, 484

U.S. 72, 77 (1987); United States ex rel. Louisiana v. Boarman, 244 U.S. 397,

402 (1917); S. Utah Wilderness Alliance v. Kempthorne, 525 F.3d 966, 968 (10th
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Cir. 2008). After all, it is usually only parties who are sufficiently aggrieved by a

district court’s decision that they possess Article III and prudential standing to be

able to pursue an appeal of it. See West v. Radio-Keith-Orpheum Corp., 70 F.2d

621, 624 (2d Cir. 1934) (Learned Hand, J.) (“[I]f not a party, the putative

appellant is not concluded by the decree, and is not therefore aggrieved by it.”);

Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1159 (10th Cir. 2011) (“[T]o have

standing on appeal, one must be aggrieved by the order from which appeal is

taken.” (internal alterations and quotation omitted)).

Problem is, we have no appeal from a named party in this case. The only

named party-plaintiff in the lawsuit after the district court granted Ms. Raley’s

substitution motion was and is BancFirst. Yet, the bank has not filed a notice of

appeal. And this presents a particular difficulty because of Rules 3(c) and 4 of

the Federal Rules of Appellate Procedure. Rule 3(c) says that a notice of appeal

“must . . . specify the party or parties taking the appeal.” Fed. R. App. P.

3(c)(1)(A). And Rule 4 states that a complaint notice “must be filed” in most

civil cases like this one within 30 days after judgment. Fed. R. App. P.

4(a)(1)(A). Both of these rules are “mandatory” in nature and, taken together,

form a “single jurisdictional threshold” to appellate review. Torres v. Oakland

Scavenger Co., 487 U.S. 314, 315 (1988); see also Becker v. Montgomery, 532

U.S. 757, 765 (2001); Edelman v. Lynchburg Coll., 535 U.S. 106, 116 (2002). 

And the threshold, simply put, is this: the “[f]ailure to name the proper party
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taking the appeal,” within the time allotted by Rule 4, can and “will result in the

dismissal of an appeal for lack of appellate jurisdiction.” Riggs v. Scrivner, Inc.,

927 F.2d 1146, 1149 (10th Cir. 1991).

Of course, the rules of contemporary civil litigation are replete with

exceptions, perhaps too many exceptions — and this rule itself is no exception. 

Those who are the subject of civil contempt orders, sanctioned attorneys, class

members who object to a judgment settling their rights — among others — may

sometimes be parties to an appeal even though they were not named parties in the

district court litigation. See, e.g., Devlin v. Scardelleti, 536 U.S. 1, 14 (2002);

U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76

(1988); Hinckley v. Gilman, Clinton & Springfield R.R., 94 U.S. 467, 469 (1876);

Blossom v. the Milwaukee &c., R.R., 68 U.S. (1 Wall.) 655, 656 (1863); In re

Woosley, 855 F.2d 687, 688 (10th Cir. 1988); Dietrich Corp. v. King Res. Co.,

596 F.2d 422, 424 (10th Cir. 1979); Plain v. Murphy Family Farms, 296 F.3d

975, 979-81 (10th Cir. 2002). Like named parties, these individuals possess

Article III standing in the sense that they have been injured by a district court

ruling and a favorable decision on appeal would ameliorate that injury. They also

possess prudential standing; they do because they don’t seek to pursue another

person’s legal rights, litigate a mere generalized grievance, or raise a challenge

falling outside the zone of interests protected by the law involved. Devlin, 536

U.S. at 7. And of particular note, the individuals in each of these situations (1)
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personally appeared in district court; (2) suffered a real and concrete injury as a

result of a district court ruling that is entitled to preclusive effect; and (3) possess

interests that would not, on appeal, be adequately represented by the named

parties to the district court lawsuit. See, e.g., Devlin, 536 U.S. at 7-9; Bode v.

Clark Equip. Co., 807 F.2d 879, 880-81 (10th Cir. 1986) (per curiam); Dietrich,

596 F.2d at 424; West, 70 F.2d at 624; see also Joan Steinman, Irregulars: The

Appellate Rights of Persons Who Are Not Full-Fledged Parties, 39 Ga. L. Rev.

411 (2005).

In light of this, the question naturally arises whether Ms. Raley might be

allowed to proceed as a party to this appeal even though she was, by the time the

district court rendered its rulings, no longer a named party to the district court

proceedings. But while the question naturally arises, it isn’t one Ms. Raley has

sought to answer. She makes no mention of this possibility in her opening or

reply brief. Curious still about the question, we drew the parties’ attention to it at

oral argument. In response, Hyundai filed a Rule 28(j) letter attempting to

address our inquiry. But Ms. Raley had nothing to say on the subject at oral

argument or later.

Where an appellant fails to lead, we have no duty to follow. It is the

appellant’s burden, not ours, to conjure up possible theories to invoke our legal

authority to hear her appeal. Neither are we comfortable guessing for ourselves,

without her help, what the answer might be to the complex question whether and
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when a substituted and now former party to the district court proceedings is

eligible to appear as a party to an appeal. Accordingly, we leave all that for

another case another day. See United States v. Ceballos-Martinez, 387 F.3d 1140,

1143 (10th Cir. 2004) (“[T]he party claiming appellate jurisdiction bears the

burden of establishing our subject-matter jurisdiction.”); see also United States ex

rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1518 n.2 (10th Cir. 

1996) (stating that arguments in support of jurisdiction may be waived like any

other contention). 

In this case, we will focus on, and limit our attention to, the three

arguments that Ms. Raley has chosen to pursue in an effort to sustain her appeal.

First and primarily, she tries a factual angle. She urges us to read the

district court’s Rule 25(c) substitution order as permitting her to remain a named

party to the district court lawsuit along with BancFirst. But this we cannot do. 

Back when she filed her motion, Ms. Raley didn’t seek to add BancFirst as a

plaintiff. Instead, she claimed that she had transferred all interest in the lawsuit

to the bank, she represented that the bank had become the sole “real party in

interest,” and she asked the court to recognize the bank as the only plaintiff “in

the place and stead of” herself. Aplt. App. Vol. 5 at 1513, 1517. The district

court granted the relief she requested, ruling that the bank was “SUBSTITUTED

as the plaintiffs in this case.” Aplt. App. Vol. 6 at 2270. Before this court, Ms.

Raley makes much of the fact that the district court proceeded in its substitution
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order to prohibit the parties from making any reference to the substitution order at

trial. But in doing so the district court was clearly and simply seeking to prevent

either side from making tactical use of the substitution order before the jury. And

this does not alter the fact that Ms. Raley received exactly the relief she requested

— substitution of BancFirst for herself as the sole party-plaintiff.

Our holding shouldn’t be mistaken for more than it is. We are not

suggesting that Ms. Raley’s Rule 25(c) motion was necessarily a proper one. It

may well be, as Hyundai once argued, that a Rule 25(c) substitution wasn’t

appropriate in this case because Ms. Raley hadn’t actually transferred her interest

in the litigation to the bank; the bank was merely acting as her guardian. Our

holding in this case is merely one of fact and peculiar to this case. We reject

only, but dispositively, Ms. Raley’s post-hoc reading of the district court’s order. 

For better (as she thought then) or worse (as she thinks now) the district court

granted her motion for substitution. And no litigant can count on winning an

appeal by complaining about a possible legal error she invited in the district

court. See United States v. Shaffer, 472 F.3d 1219, 1227 (10th Cir. 2007). 

Second, even if she did win her motion for substitution, Ms. Raley says we

can undo it. She has filed a motion in this court asking us to substitute BancFirst

in her stead as the sole party-appellant before us — effectively asking us to undo

the very substitution order she sought and won in the district court. This sort of

“un-substitution,” she says, can and will repair any damage she may have done.
1

 Neither does a motion for substitution “relate back” to Ms. Raley’s

timely but defective notices of appeal. In Becker v. Montgomery, 532 U.S. 757

(2001), the Court held that an appellant’s failure to sign a notice of appeal could

be cured after the deadline to file the notice. But in explaining this holding, the

Court took care to note that, while the timing and content requirements for the

notice of appeal were “jurisdictional in nature,” the signature requirement was

not. Id. at 765-66; Edelman, 535 U.S. at 116. This is so, of course, because that

signature requirement is not among those listed in Rule 3(c)(1). Instead, Federal

Rule of Civil Procedure 11 “alone calls for and controls that requirement,” and

Rule 11 is not jurisdictional like Rules 3 and 4. Becker, 532 U.S. at 765-66. 

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But it will not. To entertain a motion to substitute the appellant we must

first have an appeal. And here we don’t. Without a timely notice of appeal from

someone we can be confident is a party to the appeal, we have no authority to

hear a challenge to the district court’s judgment, let alone grant a motion in such

a (non-existent) appeal. No court of appeals can reach the merits of a

motion in an appeal it is without jurisdiction to hear. And no more persuasive

application of this rule could be found than in this case, where the relief sought is

essentially to permit a district court party (BancFirst) to file a conforming notice

of appeal out of time, a result that would (quite improperly) “vitiate” the

mandatory and jurisdictional deadline set forth by Rules 3 and 4. See Torres, 487

U.S. at 315; see also Kowaleski v. Dir., Ofc. of Workers’ Comp., U.S. Dep’t of

Labor, 879 F.2d 1173, 1177 (3d Cir. 1989).1

Third and in a very different direction, Ms. Raley asks us to infer

BancFirst’s intent to appeal from the record of this case outside the notices of

appeal. She points out that BancFirst is represented by the same counsel as she. 
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And she stresses that the bank has joined her motion in this court seeking leave to

substitute it as the appellant. From these facts, she says, we should surmise that

BancFirst intended all along to participate in this appeal. 

This, too, we cannot do. The test for determining whether a particular party

has appealed is whether a timely notice of appeal, filed within the period specified

by Rule 4, makes it “objectively clear that [the] party [in question] intended to

appeal,” either by naming the specific party or by using a term (whether “et al.” or

“all plaintiffs” or “the defendants”) that encompasses that party. Fed. R. App. P. 3

advisory committee note (1993 amendment). And the notices of appeal in this

case plainly fail this test. They don’t name BancFirst. They don’t use terms that

objectively and clearly encompass the bank. Instead, both notices mention only

Ms. Raley. Neither may we look beyond the notice of appeal and scour the record

to figure out who does and doesn’t wish to appeal. Rule 3(c) expressly requires

that a party’s intent to participate in the appeal be objectively clear “from the

notice” itself. Fed. R. App. P. 3(c)(4) (emphasis added); see also Billino v.

Citibank, 123 F.3d 723, 726-27 (2d Cir. 1997); Magicsilk Corp. of N.J. v. Vinson,

924 F.2d 123, 125 (7th Cir. 1991); Becker, 532 U.S. at 765-66. 

If anything, our current test for determining a party’s intent to appeal is

more forgiving than it used to be. In Torres, the notice of appeal omitted the name

of one of sixteen plaintiffs, but appeared to encompass even the unnamed plaintiff

through use of the term “et al.” (literally, “and others.”). 487 U.S. at 317-18. The
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Supreme Court, however, held this general term was “utterly” insufficient to

afford it jurisdiction to hear an appeal from the unnamed plaintiff. Id. at 318. The

Court’s holding led to a rash of “satellite litigation” over whether and when a

notice of appeal that contains “some indication of the appellants’ identities but

does not name the appellants” might be sufficient. Fed. R. App. P. 3 advisory

committee note (1993 amendment). In response, the rulemakers went to work and,

at their recommendation, Congress in 1993 adopted an amendment liberalizing

Rule 3(c), permitting appellants to use “such terms as ‘all plaintiffs’ [or] ‘the

defendants’” to identify the appealing parties. Fed. R. App. P. 3(c)(1)(A). This

language was expressly designed to “prevent the loss of a right to appeal through

the inadvertent omission of a party’s name or continued use of such terms as ‘et

al.,’ which are sufficient in all district court filings after the complaint.” Fed. R.

App. P. 3 advisory committee note (1993 amendment). But even as amended, the

Rule still unambiguously limits the scope of inquiry to the notice of appeal itself

— it does not allow us to forage through the record for indicia of a putative

appellant’s intent. 

To be sure, just as we now construe more liberally what is in the notice of

appeal, we also liberally construe what is a notice of appeal, treating timely filings

that otherwise comply with Rule 3(c) as the “functional equivalent” of a notice of

appeal even when they are not formally denominated as such. See Smith v. Barry,

502 U.S. 244, 247-48 (1992); B. Willis, C.P.A. Inc. v. B.N.S.F. Ry., 531 F.3d 1282,
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1296 (10th Cir. 2008); see also Grimsley v. MacKay, 93 F.3d 676, 678 (10th Cir.

1996). But none of this means we may look beyond what is labeled as or

functionally equivalent to a notice of appeal to figure out who is and is not seeking

to appeal.

It may seem “harsh” to insist that a party manifest an objectively clear

intent to appeal in the notice of appeal itself. But, as Justice Marshall emphasized

in Torres, the results flowing from the application of Rule 3(c) are results

“imposed by the legislature” and the rulemaking process, results courts are not

free to rewrite according to their policy preferences. 487 U.S. at 318 (internal

quotation omitted). Neither, as it happens, are Rule 3(c)’s requirements just empty

procedures without purpose. By requiring an objectively verifiable indication of

who is appealing in the notice of appeal itself, the Rule “serves both the interests

of finality, in that courts of appeal may not exercise jurisdiction over unnamed

parties . . . and of fairness [by] . . . provid[ing] notice both to the opposition and to

the court of the identity of the appellant or appellants.” DeLuca v. Long Island

Lighting Co., 862 F.2d 427, 429 (2d Cir. 1988) (internal quotation omitted). And

both considerations are surely at work here. Throughout most of the briefing of

this appeal it was unclear whether BancFirst wanted to pursue an appeal, and we

are loath simply to guess whether someone wishes to invoke and become subject to

our jurisdiction. Likewise, it is manifestly unfair to any responding appellee to

have to write its briefs and prepare its arguments without any way of being sure
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who is, and who is not, seeking to undo its district court victory. Who is appealing

should be something everyone can easily and readily know, not a guessing game.

Truth is, the problems with this appeal were likely avoidable. A timely

notice of appeal by BancFirst, assuming it had really wished to appeal as Ms.

Raley represents, would have done the trick. Alternatively, Ms. Raley might have

sought some form of relief from the district court other than total substitution. Or

she might have sought to argue that she can challenge the judgment because of

precedent permitting some individuals who are not parties to the district court

litigation to appear as parties to an appeal. But we rule on the cases as they come

to us. And this one comes to us in a posture where none of these options was

pursued and so where we have little left we can do. As it stands, this appeal, like

a nearly identical appeal the Third Circuit faced in Kowaleksi, “strikingly

illustrates the necessity for lawyers to be familiar with applicable legal procedural

rules and to comply with them.” 879 F.2d at 1174. Many procedural missteps we

can forgive or overlook, others we can correct. But Rules 3(c) and 4 are

jurisdictional rules. And jurisdictional rules are just that. The failure to abide

them can, and in this case does, mean that we cannot reach the merits, however

unfortunate that may be.

This appeal is dismissed for lack of jurisdiction. The motions for

substitution and remand are dismissed as moot.