                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 22 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MMADI MLATAMOU HASSANATI, as                     No. 14-55348
the personal representative for
MOHAMED ABDOU SAID, deceased; et                 D.C. No. 2:11-cv-02251-MMM-
al.,                                             MA

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
 v.

INTERNATIONAL LEASE FINANCE
CORPORATION,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                       Argued and Submitted March 10, 2016
                               Pasadena, California

Before: REINHARDT, MURGUIA, and OWENS, Circuit Judges.

      Plaintiff Mmadi Mlatamou Hassanati, and others, appeal from the district

court’s order (1) denying their motion for appointment as personal representatives



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and, in the alternative, their request for additional time to seek appointment from a

California state court; and (2) granting summary judgment in favor of Defendant

International Lease Finance Corporation (ILFC). As the parties are familiar with

the facts, we do not recount them here. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.1

      1.     The district court did not err in denying Plaintiffs’ motion for

appointment as decedents’ personal representatives. Under the probate exception,

federal courts lack jurisdiction over probate matters. See Marshall v. Marshall,

547 U.S. 293, 311-12 (2006). The district court correctly determined that

appointment of a personal representative falls within the probate exception because

it, essentially, seeks that a court issue letters of administration. See In re Marshall,

392 F.3d 1118, 1132-33 (9th Cir. 2004), rev’d on other grounds, 547 U.S. 293

(2006).

      Furthermore, under Federal Rule of Civil Procedure 17(b), one’s capacity to

sue is determined “by the law of the state where the court is located,” and under

California law, a foreign individual seeking appointment as a personal



      1
        We grant the Plaintiffs’ requests for judicial notice “to the extent [that they
are] compatible with Fed. R. Evid. 201 and ‘do[] not require the acceptance of
facts subject to reasonable dispute.’” Associated Gen. Contractors of Am. v. Cal.
Dep’t of Transp., 713 F.3d 1187, 1190 n.1 (9th Cir. 2013) (citation omitted).

                                            2
representative must open probate proceedings. See Smith v. Cimmet, 132 Cal.

Rptr. 3d 276, 282-83 (Ct. App. 2011). Therefore, even if the district court had the

authority to appoint Plaintiffs, it correctly denied Plaintiffs’ motion as Plaintiffs

did not comply with the requirements for such appointments under California

probate law. For example, Plaintiffs’ motion did not contain a copy of the

decedents’ wills, the name, age, address, and relation to the decedent of each heir

and devisee, or the decedents’ addresses at the time of death, see Cal. Prob. Code

§ 8002, or an affidavit showing that notice of the potential appointments had been

given to interested parties, see id. § 8124.

      2.     The district court did not abuse its discretion in denying Plaintiffs’

request for additional time to seek appointments as personal representatives in

California state court as moot because it concluded that it would not allow

Plaintiffs to relate back amendments reflecting such appointments. Under Federal

Rule of Civil Procedure 15(c), the district court has discretion to relate back an

amendment to a complaint to the filing of the original pleading when, among other

things, “the amendment asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out–or attempted to be set out–in the original

pleading.” Additionally, under Federal Rule of Civil Procedure 17(a)(3), a court

“may not dismiss an action for failure to prosecute in the name of the real party in


                                            3
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.” In making this

determination courts look at, among other things, whether an “understandable

mistake” was made in naming the appropriate party or whether the defendant

would be prejudiced by the substitution and amendment. See United States for Use

& Benefit of Wulff v. CMA, Inc., 890 F.2d 1070, 1073-75 (9th Cir. 1989).

      In light of the procedural history in this case, we conclude that Plaintiffs’

close to two-year delay in seeking appointment was unreasonable and not an

understandable mistake. In its September 2011 order, the district court made it

clear that a court appointment was necessary to bring this action. Despite this clear

instruction, counsel for Plaintiffs did not seek appointment until July 2013, after

the statute of limitations had expired. Plaintiffs failed, in their briefing and at oral

argument, to provide an acceptable explanation for this delay. Counsel for

Plaintiffs admitted that a declaration that he signed explaining the delay was “not

the basis of the delay” and “not a complete basis or explanation.” Furthermore,

giving Plaintiffs additional time would further delay this action, thereby

prejudicing Defendant, which has already expended significant resources

defending this lawsuit. Moreover, nothing in Rule 15 or 17 permits counsel to so

blatantly ignore the district court’s schedule and the need for complete candor.


                                            4
Accordingly, we affirm the district court’s decision to deny Plaintiffs’ request for

additional time.

      3.     The district court did not err in granting summary judgment in favor

of Defendant. A Death on the High Seas Act (DOHSA) action can only be brought

by the personal representative of a decedent. See 46 U.S.C. § 30302. Here, there

is no genuine issue of material fact that Plaintiffs have not been appointed as

personal representatives by a court and, therefore, did not have the capacity to

bring the action.

      AFFIRMED.




                                          5
                                                                               FILED
Hassanati v. International Lease Finance Corp. 14-55348
                                                                               MAR 22 2016
Reinhardt, Circuit Judge, dissenting:                                      MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


      Plaintiffs allege that more than forty people died as a result of Defendant’s

negligence and seek damages for the eligible relatives of the victims. The district

court found that these claims¯meritorious or not¯were forfeited because their

attorneys waited too long to fulfill a complex technical requirement: having

California appoint personal representatives, who are all French or Comorian

citizens, for the victims’ estates. The district court did not consider whether this

delay prejudiced Defendant in its analysis of whether Plaintiffs future appointment

as personal representatives could relate back to their initial complaint under Rules

15(c) and 17(a). This was a legal error and thus an abuse of discretion. I therefore

dissent from the majority’s contrary finding.

      In applying Rule 15 we have held that the district court commits reversible

error if it fails to “provide a contemporaneous specific finding of prejudice to the

opposing party” in denying the amendment of a party as untimely. Bowles v.

Reade, 198 F.3d 752, 758 (9th Cir. 1999). Likewise, in applying Rule 17(a) we

have held in a well-reasoned, albeit unpublished, disposition that “[t]he advisory

notes to Rule 17(a) make clear that equitable principles should apply to a district

court's decision . . . . The District Court erred in failing to consider the prejudice to

                                            1
the parties or the court's interest in litigating suits on their merits.” Cont'l Ins. Co.

v. N.A.D., Inc., 16 F. App'x 659, 661 (9th Cir. 2001). This comports with the law

of the other circuits. See, e.g, Esposito v. United States, 368 F.3d 1271, 1276 (10th

Cir. 2004) (Rule 17(a) cases focus “primarily on whether the plaintiff engaged in

deliberate tactical maneuvering (i.e. whether his mistake was “honest”), and on

whether the defendant was prejudiced thereby.”); Sun Ref. & Mktg. Co. v.

Goldstein Oil Co., 801 F.2d 343, 345 (8th Cir. 1986) (looking to prejudice under

17(a)); Suda v. Weiler Corp., 250 F.R.D. 437, 440 (D.N.D. 2008) (“District courts

should consider certain factors . . . [including] whether the defendant would be

prejudiced by a substitution.”).

       Had the district court looked, it would have found that there was little or no

prejudice. Substituting the Plaintiffs as personal representatives would not change

anything about the case. It would not affect the persons who would recover, or the

negligence claims themselves. “Rule 17(a) substitution of plaintiffs should be

liberally allowed when the change is merely formal and in no way alters the

original complaint's factual allegations as to the events or the participants.”

Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir.

1997). Defendant contends that Plaintiffs’ delay could have forced them to defend

against other suits by relatives of the same victims. It did not, however. Defendant

                                             2
also does not contest Plaintiffs’ claim that the litigation proceeded forward at a

normal pace during 2011 to 2013, aside from the personal representative question.

Although allowing Plaintiffs a couple of months to go to the state probate court

might have delayed the proceedings, this is a minor inconvenience that hardly

compares with the loss of claimants’ ability to obtain redress for Defendant’s

alleged negligence which killed a “spouse, parent, child,” or relative on whom they

depended for financial support. 46 U.S.C. § 30302; see also Bowles, 198 F.3d at

758 (“Undue delay by itself, however, is insufficient to justify denying a motion to

amend.”).

      There is no doubt that Plaintiffs’ counsel should have acted far more

quickly. The district court found that although Plaintiffs had not engaged in any

tactical maneuvering or other dishonest conduct, the delay was unreasonable.

Without considering prejudice, however, the district court could not properly

decide whether this delay warranted the considerable penalty the court imposed.

Indeed, courts have permitted delays of the same length at issue here if there is no

prejudice to defendants. In Brohan v. Volkswagen for example, the court permitted

the appointment of plaintiff as personal representative to relate back to a previously

filed complaint nearly two years after defendants had first contended the suit could

not continue because the plaintiff was not the personal representative. See 97

                                           3
F.R.D. 46, 49 (E.D.N.Y. 1983). The court found:

       No one has been misled in the slightest degree as to the nature of the
       claim or the issues at stake . . . . Rule 1 requires the court to construe
       the "reasonable time" allowed by Rule 17(a) in such a way as to
       secure the "just" as well as the speedy and inexpensive determination
       of the action. It would hardly be "just" to hold that plaintiff was too
       late to correct the situation where no prejudice to the defendants has
       occurred and there is no evidence that the delay was a tactic
       undertaken in bad faith.
Id. at 50.

       The same is true here. Accordingly I would, at a minimum, vacate and

remand the district court’s decision.




                                            4
