## United States Court of Appeals **For the Eighth Circuit**

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No. 19

- 2871

___________________________ Paul Gillpatrick; Niccole A. Wetherell

Plaintiffs - Appellees

v.
Scott Frakes, Director, in their official capacities

Defendant - Appellant

Denise Davidson, Warden, in their official capacities; Robert Madsen, Warden, in their official capacities

Defendant s
Michele Capps, in her official capacity as Warden of the Nebraska State Penitentiary; Angela Folts

- Oberle, in her official capacity

Defendants - Appellants

____________ Appeal from United States District Court for the District of Nebraska - Lincoln

____________
Submitted: Novemb er 18, 2020 Filed: May 19, 2021

____________ Before BENTON, ERICKSON, and GRASZ, Circuit Judges.

____________-2- BENTON, Circuit Judge.

Paul M. Gillpatrick filed a suggestion of death for his co

- plaintiff, Niccole A.
Wetherell. See Fed. R. App. P. 43 . Because they can no longer marry, th e appeal of the merits judgment is moot. See Gillpatrick v. Frakes , 2019 WL 7037367, at *8 (D. Neb. June 7, 2019)

. T he “happenstance” of Wetherell’s death moots th e appeal of the merits judgment

, so vacatur of it is appropriate. See U .S. Bancorp Mortg. Co. v. Bonner Mall P’ship , 513 U.S. 18, 23 (1994)

. See generally Arizonans for Official English v. Arizona , 520 U.S. 43, 71 (1997) (“Vacatur is in order when mootness occurs through happenstance

— circumstances not attributable to the parties

. . . .”) ; Robinson v. Pfizer, Inc. , 855 F.3d 893, 898 (8th Cir. 2017) ( “Once a case pending appeal becomes moot, federal appellate courts may dispose of the case as justice may require.” ) ; 28 U.S. C. § 2106

. In their initial brief, the appellants did not make any “meaningful argument” against the separate attorney’s fees judgment. See Chay

- Velasquez v. Ashcroft , 367 F.3d 751, 756 (8th Cir. 2004) (“Since there was no meaningful argument on this claim in his opening brief, it is waived.”)

. See also Cox v. Mortg. Elec. Reg istration Sys., Inc. , 685 F.3d 663, 674 (8th Cir. 2012) (stating that appellants “waived [an] issue by failing to provide a meaningful explanation of the argument and citation to relevant authority in their opening brief”)

. Normally , this failure waives any attack on that judgment. See Sipe v. Workhouse Custom Chassis, LLC , 572 F.3d 525, 528 n.2 (8th Cir. 2009) ( appellant waived argument by failing to include it in his appellate brief even though he listed it in his notice of appeal), citing Jenkins v.
Winter , 540 F.3d 742, 751 (8th Cir. 2008)

. After the case was submitted for decision, this court requested briefing on “ the effect of the suggestion of death.” In their responding briefs, the parties dispute whether the merits judgment’s mootness affect s the district court’s attorney’s fees judgment. See Gillpatrick v. Frakes , 2019 WL 3944059, at * 5 (D. Neb. Aug. 21, 2019). In the absence of appropriate findings of fact

— including prevailing party status, any acts by the parties between the entry of the merits judgment and its stay-3- order, and the amount of attorney’s fees that should be awarded

— this court will not addr ess the attorney’s fees judgment at this time.

* * * * * * *

The district court’s merits judgment is vacated

, and the case remanded for further proceedings consistent with this opinion

.

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