Nader Aldossari v. Joseph Ripp ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2080
_____________
NADER TURKI ALDOSSARI,
on behalf of as parent and natural guardian of
Rakan Nader Aldossari,
Appellant
v.
JOSEPH C. RIPP; MOHAMMED BIN NAYEF AL SAUD,
former Crown Prince of Saudi Arabia; THE KINGDOM OF
SAUDI ARABIA; SAUDI EST. FOR DEVELOPMENT OF
RIYADH; SAUDI ARAMCO; EXPORT REFINERY
WESTERN HEMISPHERE, LTD; TRANSCONTINENTAL
OIL AND FINANCIAL GROUP OF AMERICA, INC.;
MOHAMMED BIN SALMAN BIN ABDULAZIZ AL
SAUD, Crown Prince of Saudi Arabia
__________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 2-20-cv-03187)
District Judge: Honorable Gene E.K. Pratter
_______________
Argued
April 13, 2022
Before: AMBRO, JORDAN, and SCIRICA, Circuit Judges
(Filed: September 13, 2022)
_______________
James T. Tallman [ARGUED]
Elliott & Davis
6425 Living Place – Suite 200
Pittsburgh, PA 15206
Counsel for Appellant
Katherine C. Cooper
Michael K. Kellogg
Gregory G. Rapawy
Andrew C. Shen [ARGUED]
Kellogg Hansen Todd Figel & Frederick
1615 M Street, N.W. – Suite 400
Washington, DC 20036
Counsel for Kingdom of Saudi Arabia and
Mohammed Bin Salman Bin Abdulaziz Al Saud
Lawrence F. Stengel
Saxton & Strump
280 Granite Run Drive – Suite 300
Lancaster, PA 17601
Counsel for Mohammed Bin Nayef Al Saud
2
Nicolle Kownacki
Carolyn B. Lamm [ARGUED]
Claire Marsden
Hansel T. Pham
White & Case
701 13th Street, N.W.
Washington, DC 20005
Counsel for Saudi Aramco
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Federal courts are courts of limited jurisdiction.
Constitutional, prudential, and statutory constraints on our
authority prevent us from hearing some cases that are brought
to us. For example, disputes under state law between citizens
of the same state are typically beyond our adjudicatory power.
28 U.S.C. § 1332. So, too, are actions, like this one, brought
against foreign defendants over a transaction executed and
performed overseas. Those suits can only proceed in federal
court if a sufficient connection – some jurisdictional “hook” –
exists between the parties and their dispute on one hand and
the United States on the other. This case has no hook.
Nader Turki Aldossari brought suit to recover a debt
allegedly owed to his father. In the 1990s, his father’s
company, Trans Gulf, entered into an agreement in Saudi
Arabia with three other businesses. The companies agreed to
set up and operate an oil refinery in Saint Lucia, an island
nation in the Caribbean. Crude oil for the refinery was to be
3
sourced from the Saudi government or its national oil
company, the Saudi Arabian Oil Company (known
colloquially as “Saudi Aramco”). The project went forward,
but, it is alleged, the owners of the three contract
counterparties – one of whom later became the Crown Prince
of Saudi Arabia – conspired to cut Aldossari’s father out of the
deal by refusing to pay Trans Gulf its promised share of the
proceeds. Two decades later, when Aldossari sought
recompense for his father’s work on the project, the soon-to-be
Crown Prince promised to pay but never did. That failure is
allegedly a consequence of the Crown Prince only having two
years in office before being ousted by his cousin, the current
Crown Prince. Aldossari later assigned to his minor son, a U.S.
citizen, whatever rights he had to whatever his father was
owed. Then, acting on behalf of his son, Aldossari brought suit
in the District Court, asserting various tort and contract claims.
The defendants filed motions to dismiss, which the
District Court granted with prejudice, holding that Aldossari
and his son lacked standing to sue and that most of the
defendants – Saudi Arabia, Saudi Aramco, and the current and
former Crown Princes – were immune from suit. After
Aldossari appealed, the only other defendant who appeared in
the case died, and no representative or estate has been
substituted.
We hold that dismissal of the claims against that
deceased defendant was proper because Aldossari failed to
allege any basis for exercising subject-matter jurisdiction over
those claims. As for the claims against the surviving
defendants, the lack of any meaningful ties between those
defendants and the United States in Aldossari’s claims defeats
his effort to sue them in the United States. This case concerns
4
a decades-old contract among mostly non-U.S. parties, entered
into in Saudi Arabia and performed there and in Saint Lucia.
There is no meaningful U.S. connection, so, pursuant to the
Foreign Sovereign Immunities Act, we lack subject-matter
jurisdiction over the claims against Saudi Arabia and Saudi
Aramco. And, for similar reasons, we do not have personal
jurisdiction over the two Crown Prince defendants. Because
the District Court dismissed with prejudice, however, we must
vacate its order and remand with directions to dismiss without
prejudice, since none of the dispositive rulings reach the
merits.
I. BACKGROUND
A. Factual Background 1
In December 1994, four companies aiming to establish
an oil refinery in Saint Lucia executed an Ownership
Agreement in Riyadh, Saudi Arabia. 2 Those parties were
Trans Gulf, a Saudi-based company; Saudi Est. for
1
“Because this case comes to us on … motion[s] to
dismiss the complaint, we assume that we have truthful factual
allegations before us, though many of those allegations are
subject to dispute[.]” Saudi Arabia v. Nelson, 507 U.S. 349,
351 (1993) (citation omitted).
2
Aldossari attached a copy of the Ownership
Agreement to his complaint, so we can rightly consider it in
resolving the motions to dismiss. See Beverly Enters., Inc. v.
Trump, 182 F.3d 183, 190 n.3 (3d Cir. 1999) (courts may
consider the complaint along with “exhibits attached thereto”).
5
Development of Riyadh (“Saudi Est.”), another Saudi-based
company; Export Refinery Western Hemisphere, Ltd.
(“Export”), a British Virgin Islands corporation; and
Transcontinental Oil and Financial Group of America, Inc.
(“Transcontinental”), a Delaware corporation. 3 Representing
Trans Gulf, and signing on its behalf, was Turki bin Faraj bin
Nader (“bin Nader”), the father of plaintiff Nader Turki
Aldossari. 4 Signing for both Export and Transcontinental was
Joseph Ripp, a Pennsylvania citizen who allegedly
“controlled” both companies. (J.A. at 83-85, 105.) As for
Saudi Est., Aldossari alleges that, at all relevant times, Prince
Mohammed bin Nayef bin Abdulaziz Al Saud of Saudi Arabia
– who went on to become Crown Prince from 2015 to 2017 –
was its owner and acted as its agent.
The parties to the Ownership Agreement agreed to split
ownership of the refinery on a roughly equal basis: 25% for
Saudi Est., 24% for “Trans Gulf (and his partners as they
agree[d] between them),” 5 25.5% for Export, and 25.5% for
3
The particular business structures of Trans Gulf and
Saudi Est. are not alleged, but Aldossari does assert that both
entities are based in Saudi Arabia.
4
Aldossari does not allege, and the Ownership
Agreement does not state, the nature of the relationship
between his father and Trans Gulf. Aldossari merely describes
it as “his [i.e., bin Nader’s] company[.]” (J.A. at 85.)
5
In keeping with the phrase “Trans Gulf and his
partners,” Aldossari, throughout his pleading and briefing,
treats Trans Gulf as his father’s alter ego, as if there were no
6
Transcontinental. 6 (J.A. at 85-86, 97-107.) In exchange, each
party took on certain responsibilities. Saudi Est. promised to
obtain, within a year, “a contract for the supply of crude oil
from the Government of the Kingdom of Saudi Arabia,
and[/]or Saudi Aramco” for the refinery at below-market prices
for at least twenty years. (J.A. at 100, 102.) Saudi Est. also
agreed to send letters to the prime minister of Saint Lucia and
to Saudi Aramco “authorizing [bin Nader] … to work with
Aramco on behalf of the venture.” (J.A. at 102.) The “Owner
of Saudi Est.” – who, again, Aldossari alleges was Prince
Mohammed bin Nayef – would sit on the refinery’s board of
directors. (J.A. at 85, 102.) Export, meanwhile, provided an
exclusive license it had previously secured from the
government of Saint Lucia to “build, own and operate a state
of the art Export Petroleum Refinery[.]” (J.A. at 98.) Export
was tasked with completing “the actual development,
financing and construction of the Refinery” in three years;
“maintain[ing] good relations with the Government of St.
Lucia”; and running the refinery once it was built. (J.A. at
100.) Transcontinental was authorized by Export to act on its
behalf. Trans Gulf’s role was stated in a memorandum of
understanding entered into in September 1994 and
corporate veil between the two. No acknowledgement is made
of any “partners” his father may have had.
6
Two months before the execution of the Ownership
Agreement, bin Nader entered into a side arrangement with
Ripp in which Ripp promised that “[Transcontinental,] from its
interest in [the refinery,] will give to [bin Nader] an additional
10% for [his] company.” (J.A. at 108.) It is not made clear
what, if anything, bin Nader or Trans Gulf agreed to give Ripp
in exchange for that 10% of Ripp’s share.
7
incorporated by reference but not attached to the Ownership
Agreement. The memorandum allegedly said that Trans Gulf
and bin Nader “were designated to be the local Manager in
Saudi Arabia and the Middle East” by Transcontinental and
Export. (J.A. at 99.)
Aldossari provides scant detail of the parties’
performance under the Ownership Agreement. He does claim,
however, that his father, bin Nader, traveled to Saint Lucia in
1995 “on behalf of the former Crown Prince[7] and [the] Saudi
Arabian government” to meet with government officials. (J.A.
at 86.) According to Aldossari, “as a result of the efforts of
[his father,] the parties entered into deals for the supply of oil
from Aramco.” (J.A. at 86.) He also says that Export secured
an agreement with the Saudi government “and/or” Saudi
Aramco for the supply of crude oil, but he does not include a
copy of that agreement or explain why it was Export that
obtained that contract and not Saudi Est., as the Ownership
Agreement provided. (J.A. at 85.)
At some point, things took a turn for the worse, at least
for Aldossari’s father. Aldossari claims that “Ripp and the
former Crown Prince acted in concert to breach … the
7
The District Court thought the identity of “the former
Crown Prince” was unclear, as neither of the Crown Princes
named as defendants in this suit held that title at the time of
these events. It seems a reasonable inference, however, that
the term refers to Prince Mohammed bin Nayef, based on the
fact that Aldossari elsewhere refers to him as the “former
Crown Prince of [the] Kingdom of Saudi Arabia[.]” (J.A. at
85.)
8
agreement and cut [bin Nader] out of the deal.” (J.A. at 86.)
In April 1995, Prince Mohammed bin Nayef “wrote to [bin
Nader] stating: ‘[i]f we make another deal in St. Lucia with the
same people or different people, you will get your 24%’” – in
other words, bin Nader was being denied his share on the
original deal. (J.A. at 86.) According to Aldossari, even
though “future agreements and deals resulting in substantial
profits transpired,” “[n]either [bin Nader] nor Trans Gulf
received any payment of profits” under the original deal or any
subsequent ones. (J.A. at 87.) Bin Nader died in 1999, leaving
behind as heirs his three wives, twelve sons (including
Aldossari), and seven daughters.
To all appearances, that was the end of the matter for
the next fifteen years. Although the Ownership Agreement
provided that “[a]ny dispute between the parties shall be
arbitrated in accordance with the rules and regulations then
pertaining by the International Chamber of Commerce in
Switzerland” (J.A. at 104), there is no indication that Aldossari
or his father, or anyone else, ever availed themselves of that
dispute-resolution mechanism.
In 2014, however, Aldossari met with Prince
Mohammed bin Nayef in London. At that time, says Aldossari,
the Prince “acknowledged the agreement” and bin Nader’s
“right to receive payment” under it. (J.A. at 87.) In Aldossari’s
telling, the Prince promised that he “had [Aldossari’s] father’s
share” and that he would “arrange for payment … in the
coming weeks[.]” (J.A. at 87.) That never occurred. The
following year, Prince Mohammed bin Nayef became the
Crown Prince of Saudi Arabia, a role he held until 2017, when
Prince Mohammed bin Salman bin Abdulaziz Al Saud became
the reigning Crown Prince. Aldossari claims that Crown
9
Prince Mohammed bin Salman placed his predecessor “under
house arrest, seized his assets and … prevented [Prince
Mohammed bin Nayef] from performing under the
Agreement.” (J.A. at 87.) Aldossari’s pursuit of Trans Gulf’s
long-delayed rewards had, it seems, run out of luck.
But Aldossari had not run out of determination. In
February 2020, he brought his son Rakan Nader Aldossari – a
minor and a citizen of Pennsylvania – into the picture. 8
Aldossari executed an “Assignment of Claim” that transferred
to Rakan the right to recover on any claims Aldossari had
“arising out of the St. Lucia Refinery Ownership
Agreement[.]” (J.A. at 83, 96.) In exchange, Rakan would
give Aldossari five percent of any amount he recovered. With
that new arrangement in place, this litigation began.
B. Procedural Background
Aldossari filed suit on Rakan’s behalf in June 2020
against Trans Gulf’s counterparties to the Ownership
Agreement – Export, 9 Transcontinental, and Saudi Est. – along
with Ripp, the Kingdom of Saudi Arabia, Saudi Aramco,
Crown Prince Mohammed bin Salman, and former Crown
Prince Mohammed bin Nayef. 10 In his amended complaint,
8
We use “Aldossari” in this opinion to refer to Nader
Turki Aldossari and “Rakan” to refer to his son.
9
Export was named as a defendant but was not listed as
a defendant in any of the specific counts in the complaint.
10
Where practical, we follow the District Court’s lead
and refer to the two Crown Princes as the “current Crown
Prince” and the “former Crown Prince.” The current Crown
10
Aldossari claims that all of the defendants save the current
Crown Prince are in breach of contract by failing to pay bin
Nader for Trans Gulf’s promised share of the profits from the
Saint Lucia refinery deal. 11 He also alleges that the former
Crown Prince, Saudi Arabia, Saudi Aramco, Saudi Est., and
Ripp are liable in quantum meruit for the services that bin
Nader provided them in his role as the “local manager in Saudi
Arabia and the [M]iddle [E]ast” for Transcontinental and
Export and through meeting with Saint Lucia government
officials to move the deal along. (J.A. at 89-90.) And he
further asserts that Ripp intentionally interfered with bin
Nader’s contractual relationships by working to prevent bin
Nader, his estate, and Trans Gulf from receiving their share of
the profits. Finally, Aldossari alleges that the current Crown
Prince intentionally interfered with contractual relations by
“act[ing] to undermine the efforts” of the former Crown Prince,
Saudi Arabia, Saudi Aramco, and Saudi Est. to “fulfill their
obligations” to bin Nader and his descendants, including by
Prince was not named as a defendant in the original complaint
but was added upon amendment.
11
Specifically, Aldossari asserts one claim against the
former Crown Prince, Saudi Arabia, Saudi Aramco, and Saudi
Est. for breaching the Ownership Agreement by failing to pay
“bin Nader and his company” 24% of the profits from the Saint
Lucia deal. (J.A. at 87-88.) He also brings a separate claim
against Ripp and Transcontinental for their nonpayment of
both Trans Gulf’s cut under the Ownership Agreement and the
10% of Ripp’s cut bin Nader and Trans Gulf were promised in
the side deal.
11
placing the former Crown Prince “under house arrest” and
seizing his assets. 12 (J.A. at 91-92.)
Export, Transcontinental, and Saudi Est. did not enter
appearances in the District Court – in fact, Aldossari did not
even attempt to serve them. 13 Ripp, Saudi Aramco, Saudi
Arabia, and the current Crown Prince were served (or waived
service), 14 entered appearances, and moved to dismiss on a
number of grounds including the statute of limitations, lack of
subject-matter and personal jurisdiction, improper venue, and
failure to state a claim. A little more than a week before the
District Court ruled on the motions, the former Crown Prince
entered an appearance, but he did not file a responsive pleading
prior to the Court’s decision.
The District Court held that it lacked subject-matter
jurisdiction over Aldossari’s claims and dismissed the entire
case. It first concluded that Aldossari lacked standing to
12
Aldossari does not identify the source of law for his
claims, but to the extent the claims are meant to invoke
common-law rights, as appears to be the intent, they are not
rooted in federal law. See Cassirer v. Thyssen-Bornemisza
Collection Found., 142 S. Ct. 1502, 1507 (2022) (describing
“non-federal claims” in a suit against a foreign sovereign as
those “relating to property, torts, contracts, and so forth”).
13
Aldossari does not list those entities as parties to this
appeal.
14
Saudi Aramco argued in its motion to dismiss that
Aldossari’s efforts to serve it were deficient, although it does
not reassert that argument before us.
12
pursue any of the claims against any of the defendants. Neither
he nor even bin Nader was a party to or a beneficiary of the
Ownership Agreement, the Court observed. And even if bin
Nader had suffered a cognizable injury, Aldossari and Rakan –
who were not proceeding on behalf of bin Nader’s estate –
suffered no injury by virtue of the defendants’ nonpayment.
As a separate basis for dismissal, the Court also held
that each defendant other than Ripp was immune from suit. It
determined that the Foreign Sovereign Immunities Act of 1976
(the “FSIA”), 15 U.S.C. § 1602 et seq., did not allow for
jurisdiction over the claims against Saudi Arabia and Saudi
Aramco. No jurisdiction existed over the claims against the
current Crown Prince, meanwhile, because the common law of
conduct-based immunity for officials of a foreign government
entitled him to dismissal. And although the former Crown
Prince had not yet moved to dismiss, the Court sua sponte
concluded that he, too, was immune from suit on common-law
conduct-based immunity grounds.
The Court ordered dismissal without prejudice, but
when Aldossari elected to stand on his complaint, it converted
its order to a dismissal with prejudice. Aldossari then timely
appealed. Three months later, Aldossari’s counsel informed us
that Ripp had died.
13
II. DISCUSSION 15
A. Sequence of Decision
The District Court dismissed the case because it
concluded that Aldossari lacked standing to pursue any of his
claims and therefore the Court had no subject-matter
jurisdiction over the case. We agree that the claims were
properly dismissed, but we take a different route to arrive at
that conclusion.
The standing analysis here would necessitate reaching
complex, fact-bound determinations. Those issues include
whether bin Nader suffered a cognizable injury-in-fact from
the breach of a contract to which he was not formally a party,
although the company he allegedly owned was a party and he
personally was named in the contract as a participant in the
transaction. They also include whether Aldossari can rely on
his status as an heir to his father (and on an alleged promise of
payment from the former Crown Prince) to seek recovery of
funds supposedly owed to bin Nader. Moreover, while the
parties agree that Pennsylvania’s choice-of-law rules apply,
see Cassirer v. Thyssen-Bornemisza Collection Found., 142 S.
Ct. 1502, 1506-08 (2022) (in a lawsuit asserting non-federal
claims against a foreign sovereign, courts must apply “the
forum State’s choice-of-law rule”), they dispute whether,
15
Aldossari invoked the FSIA as a basis for the District
Court’s subject-matter jurisdiction. 28 U.S.C. §§ 1330 and
1604. As discussed, infra, in Section II.B, however, the FSIA
does not provide subject-matter jurisdiction in this case. We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
14
under those rules, we should apply the substantive law of Saudi
Arabia or Pennsylvania. They also disagree on the contents of
those two bodies of law. For example, Aldossari and Saudi
Arabia submitted dueling affidavits regarding the rights of
heirs to bring suit under Saudi law.
It is questionable whether the standing questions in this
case even implicate the constitutional limits of Article III at all.
Instead, those issues may turn on non-jurisdictional doctrines
like prudential limits on shareholder and contractual standing
and the “real party in interest” requirement embodied in
Federal Rule of Civil Procedure 17. See, e.g., Potter v. Cozen
& O’Connor, No. 21-2258, --- F.4th ----, 2022 WL 3642107,
at *3, *6 (3d Cir. Aug. 24, 2022) (“the shareholder standing
rule,” which generally prohibits shareholders from suing based
on an “indirect injury” suffered because of harm to the
corporation, is “a prudential rule, not a constitutional or
jurisdictional one”); Maxim Crane Works, L.P. v. Zurich Am.
Ins. Co., 11 F.4th 345, 350 (5th Cir. 2021) (arguments that a
plaintiff lacks “contractual standing” – meaning that he “does
not have a contractual right to bring [a] suit” – “do not go to
the court’s subject matter jurisdiction, but are instead part of
the inquiry into the merits of a particular claim”); Martineau v.
Wier, 934 F.3d 385, 391 (4th Cir. 2019) (question of whether
plaintiff “was legally entitled to pursue … claims on her own
behalf, or whether the claims belonged solely to [a third party]”
“implicates not Article III standing doctrine, but rather the
‘real-party-in-interest’ requirement”).
On this record, however, we need not delve into those
questions, because we can dispose of the claims against each
defendant on other, more straightforward threshold grounds.
As to Saudi Arabia and Saudi Aramco, we agree with the
15
District Court that statutory subject-matter jurisdiction
pursuant to the FSIA is lacking over the claims against them.
The dismissal of both Crown Princes was appropriate given
that there is no personal jurisdiction over either of them.
Finally, the claims against Ripp were correctly dismissed
because of the absence of any alleged basis for exercising
subject-matter jurisdiction over them. And even if there were
a jurisdictional foundation for suing Ripp, we would dismiss
the appeal against him, given our authority under Federal Rule
of Appellate Procedure 43 to “direct appropriate proceedings”
if a party dies during the pendency of an appeal. Aldossari’s
inability to overcome each of those hurdles – all of which are
threshold issues and are discussed in greater detail below – is
more apparent to us than is a resolution of the standing issues. 16
16
Ordinarily, upholding a district court’s order of
dismissal on alternate grounds supported by the record is well
within our discretion. Watters v. Bd. of Sch. Dirs., 975 F.3d
406, 412-13 (3d Cir. 2020). Yet the general “requirement that
[subject-matter] jurisdiction be established as a threshold
matter” would seem to mandate that we begin our analysis by
addressing the standing questions raised by the parties. Steel
Co. v. Citizens for Better Env’t, 523 U.S. 83, 94 (1998). That
rule does not present a problem here, however, because it “does
not dictate a sequencing of jurisdictional issues[,]” Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999), and
“federal courts have flexibility to choose among alternate
‘grounds for denying audience to a case on the merits[,]’”
Reading Health Sys. v. Bear Stearns & Co., 900 F.3d 87, 95
(3d Cir. 2018) (quoting Sinochem Int’l Co. v. Malay. Int’l
Shipping Corp., 549 U.S. 422, 431 (2007)). As discussed
further herein, each of the issues on which we resolve this
appeal – Civil Rule 8(a)(1), Appellate Rule 43, the FSIA, and
16
If we felt free to do so, we might well address the
glaring statute-of-limitations defect in Aldossari’s complaint,
which was brought decades after the main events in this case. 17
personal jurisdiction – leads to a “[d]ismissal short of reaching
the merits[.]” Sinochem, 549 U.S. at 431. Since that means
that we “will not ‘proceed at all’ to an adjudication of the
cause[,]” those issues “may be resolved before addressing
jurisdiction.” Id. Our decisional path therefore does no
disservice to the limits on our authority as a federal court.
17
Pennsylvania’s choice-of-law rules, which everyone
agrees we should apply, include a “borrowing statute”
providing that the statute of limitations for a claim “accruing
outside this Commonwealth” is the one “provided or
prescribed [either] by the law of the place where the claim
accrued or by the law of this Commonwealth, whichever first
bars the claim.” 42 Pa. Cons. Stat. § 5521(b). Although the
relevant limitations period under Saudi law is in dispute,
Pennsylvania law requires that both breach-of-contract and
quantum meruit claims be brought within four years of the date
of accrual. 42 Pa. Cons. Stat. § 5525(a)(4), (8). The clock
started running on the breach-of-contract claims on the date
when payment under the Ownership Agreement was due,
Raucci v. Candy & Toy Factory, 145 F. Supp. 3d 440, 449
(E.D. Pa. 2015), and on the quantum meruit claim on “the date
on which the relationship between the parties [was]
terminated[,]” Cole v. Lawrence, 701 A.2d 987, 989 (Pa.
Super. Ct. 1997). Any improper nonpayment to bin Nader, and
the end of his relationship with the defendants, took place, at
the latest, upon his death in 1999. So, under the borrowing
statute, it would seem that Aldossari had at most four years
17
It is not immediately obvious, however, that the statute of
limitations counts as a threshold non-merits issue. Compare
Elkadrawy v. Vanguard Grp., 584 F.3d 169, 173 (3d Cir. 2009)
(holding that “a dismissal on statute-of-limitations grounds [is]
a judgment on the merits” for res judicata purposes (quoting
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995)),
with United States v. Doe, 810 F.3d 132, 150 (3d Cir. 2015)
(bypassing jurisdictional inquiry to resolve claim on statute-of-
limitations ground under the Antiterrorism and Effective Death
Penalty Act), and In re Briscoe, 448 F.3d 201, 220 (3d Cir.
2006) (“[T]he statute of limitations is a defense … that does
not truly go to the merits of the plaintiff’s claim in any sense.”).
Fortunately, this is another line of inquiry we can bypass, since
we can more readily resolve the appeal on other bases.
B. Saudi Aramco and Saudi Arabia: Foreign
Sovereign Immunities Act 18
The District Court held that it lacked subject-matter
jurisdiction over the claims against Saudi Arabia and Saudi
from then to file suit, putting him more than fifteen years out
of time on his main claims. The only defendants against whom
there is possibly an allegation of an act that doesn’t reach back
decades are the Crown Princes, neither of whom asserted a
statute-of-limitations defense.
18
“A determination [regarding] the existence of subject
matter jurisdiction under the FSIA is a legal question subject
to plenary review[,]” Fed. Ins. Co. v. Richard I. Rubin & Co.,
12 F.3d 1270, 1282 (3d Cir. 1993), and Aldossari, as plaintiff,
bears the burden of establishing jurisdiction, Lincoln Ben. Life
Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). Saudi
18
Aramco under the FSIA, which provides “the sole basis for
obtaining jurisdiction over a foreign state in [the federal]
courts.” Argentine Republic v. Amerada Hess Shipping, 488
U.S. 428, 434 (1989). “[A] statutory standing question can be
given priority over an Article III question” like standing, so we
are free to resolve the claims against Saudi Arabia and Saudi
Aramco on FSIA grounds. Steel Co. v. Citizens for Better
Env’t, 523 U.S. 83, 97 n.2 (1998); see also Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 493-94 (1983) (directing
district courts to ensure that the FSIA has been satisfied “[a]t
the threshold of every action … against a foreign state”
(emphasis added)).
A district court has jurisdiction over a civil action
against a “foreign state” if the state is not entitled to immunity,
which is the case only if “one of the specified exceptions to
foreign sovereign immunity” in the FSIA applies. 19 Verlinden
Arabia and Saudi Aramco have asserted facial challenges to
subject-matter jurisdiction, meaning that they have argued that
Aldossari has not adequately alleged the existence of
jurisdiction. Id. at 105-06. In response, Aldossari cites both to
the complaint and to facts outside it. Evidence “beyond the
pleadings[,]” however, is more appropriately presented in
defending against a factual attack, which “is an argument that
there is no subject matter jurisdiction because the facts of the
case … do not support the asserted jurisdiction.” Const. Party
of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014).
Regardless, on this complaint and record, there is no basis for
jurisdiction under either standard.
Those exceptions “include cases involving the waiver
19
of immunity, [28 U.S.C.] § 1605(a)(1), commercial activities
19
B.V., 461 U.S. at 489, 493 (citing 28 U.S.C. §§ 1330(a), 1604).
Although the FSIA speaks of foreign “states,” its reach extends
to any “agency or instrumentality of a foreign state[.]” 28
U.S.C. § 1603(a). An entity falls within that category if it “is
a separate legal person, corporate or otherwise”; is an “organ”
of, or has a majority of its shares owned by, a foreign state or
a political subdivision of a state; and is not a citizen of a U.S.
state or “created under the laws of any third country.” Id.§ 1603(b).
It is undisputed that Saudi Arabia is a foreign state and
that Saudi Aramco, the Kingdom’s state-owned oil company,
is an agency or instrumentality of the Saudi government. So,
under the FSIA, they are both presumptively immune – and
there is no jurisdiction over the claims against them – unless
Aldossari can show that an exception to immunity applies. 28
U.S.C. §§ 1330(a), 1604; Fed. Ins. Co. v. Richard I. Rubin &
Co., 12 F.3d 1270, 1285 (3d Cir. 1993) (holding that once a
defendant makes a prima facie showing that it is a foreign state,
“the burden then shift[s] to the plaintiff[] to establish that one
of the exceptions to immunity applie[s],” although the
occurring in the United States or causing a direct effect in this
country, § 1605(a)(2), property expropriated in violation of
international law, § 1605(a)(3), inherited, gift, or immovable
property located in the United States, § 1605(a)(4), non-
commercial torts occurring in the United States, § 1605(a)(5),
and maritime liens, § 1605(b).” Argentine Republic, 488 U.S.
at 439. Also excepted are cases involving arbitration
agreements or arbitral awards, § 1605(a)(6), preferred
mortgages, § 1605(d), terrorism, §§ 1605A–1605B, and
counterclaims to actions brought by foreign states, § 1607.
20
defendant still bears “the ultimate burden of proving immunity
from suit”); Blue Ridge Invs., L.L.C. v. Republic of Argentina,
735 F.3d 72, 83 (2d Cir. 2013) (same).
Aldossari invokes two of those exceptions: waiver and
commercial activity. 20 The District Court held that neither was
satisfied, and we agree.
1. Waiver
A foreign state is not immune if it has “waived its
immunity either explicitly or by implication[.]” 28 U.S.C.
§ 1605(a)(1). The text of the FSIA does not specify the
standard for identifying a waiver, but we join “the virtually
unanimous precedent” from our sister circuits that construes
the waiver exception strictly and requires “strong evidence” –
in the form of “clear and unambiguous” language or conduct –
that the foreign state intended to waive its sovereign immunity.
Khochinsky v. Republic of Poland, 1 F.4th 1, 8 (D.C. Cir. 2021)
(quoting Creighton Ltd. v. Government of Qatar, 181 F.3d 118,
122 (D.C. Cir. 1999)); Architectural Ingenieria Siglo XXI, LLC
v. Dominican Republic, 788 F.3d 1329, 1338 (11th Cir. 2015);
20
Aldossari did not affirmatively rely on those
exceptions in his complaint, but Saudi Arabia and Saudi
Aramco preemptively addressed the commercial-activity
exception in their motions to dismiss. Aldossari’s waiver
argument, meanwhile, was first raised in his surreply to Saudi
Aramco’s motion. Even though the District Court thought that
use of the surreply was improper, it resolved the waiver-
exception issue on the merits, since Saudi Arabia had
anticipated it when moving to dismiss. We, too, will rule on
that issue, as the parties have briefed it before us.
21
see also Smith v. Socialist People’s Libyan Arab Jamahiriya,
101 F.3d 239, 243 (2d Cir. 1996) (collecting cases reading
§ 1605(a)(1) narrowly). That approach accords with how we
analyze claims that Congress has waived the United States’
sovereign immunity. In such cases, we require that a waiver
be “unequivocally expressed,” United States v. Craig, 694 F.3d
509, 511 (3d Cir. 2012), and read any such waiver “narrowly,
in favor of the government[,]” Doe v. United States, 37 F.4th
84, 86 (3d Cir. 2022). We will do the same in evaluating
potential waivers by foreign sovereigns.
Aldossari argues that the King of Saudi Arabia waived
sovereign immunity in a speech in June 2015, when the King
said (according to Aldossari) that “here, any citizen can file
lawsuits against the King, Crown Prince or other members of
the Royal Family.” 21 (J.A. at 187.) According to a report
prepared by an expert on Saudi law and submitted by
Aldossari, the King also said in his speech that “no one is above
the law and that any citizen has the right to file any kind of
lawsuit against the King, the Crown Prince or any private or
governmental entity.” (J.A. at 184.) Aldossari concedes that
the King’s statement did not “speak directly to suits outside
Saudi Arabia” and “permitted … suits [by Saudi citizens] in
Saudi Arabia[,]” but he nonetheless asks us to construe the
statement’s effect as extending beyond that nation’s borders.
(Opening Br. at 13 (emphasis added).)
21
The speech was made in Arabic; the above translation
comes from the caption of a YouTube video of the King’s
speech, a screenshot of which Aldossari entered into the
record. For the sake of argument only, we accept the accuracy
of the translation.
22
We decline to adopt such a broad reading of the King’s
remarks. Even ignoring the word “here,” which obviously
means “here in Saudi Arabia” and thus signals the geographical
limits the King intended to convey, nothing in his statement, as
it has been translated and summarized to us, addressed suits
brought in courts outside of Saudi Arabia. 22 Nor does
Aldossari offer any basis for inferring that the King meant to
waive his government’s sovereign immunity in every tribunal
in every country in the world, which would be the necessary
consequence of agreeing with Aldossari’s view. Instead,
Aldossari insists that failing to recognize a waiver of immunity
in U.S. courts would give Saudi Arabia and Saudi Aramco
“more protection [here] than … in their own courts.” (Opening
Br. at 13.)
That may be the case, but it is no reason to reach the
conclusion Aldossari wants. Courts have “uniformly
concluded” that “a waiver of sovereign immunity in domestic
courts does not by itself evidence an intent on the part of the
sovereign entity to waive immunity from suit in the United
States.” Corzo v. Banco Central de Reserva del Peru, 243 F.3d
519, 523 (9th Cir. 2001) (collecting cases). Indeed, one of the
fundamental “privilege[s] of sovereignty” is the ability to
22
The parties dispute whether the speech had binding
legal effect. Aldossari claims that the speech was a “Royal
Decree” and therefore became part of Saudi law, but Saudi
Arabia rejects that characterization. We do not wade into that
disagreement, as the statement is not enough to establish a clear
and unambiguous waiver of Saudi Arabia’s immunity in U.S.
courts, even if it carried the force of law in the Kingdom.
23
“consent to certain classes of suits while maintaining …
immunity from others[.]” Alden v. Maine, 527 U.S. 706, 758
(1999).
And there is good reason to conclude that Saudi Arabia
has exercised that privilege. Customary international law, like
the FSIA, operates under a presumption that a state is immune
from suit in foreign courts, subject only to a handful of
exceptions. See David P. Stewart, The UN Convention on
Jurisdictional Immunities of States and Their Property, 99 Am.
J. Int’l L. 194, 195 (2005) (noting the historical “virtual
unanimity in international law and practice that sovereigns …
were absolutely immune from the jurisdiction of foreign
courts[,]” which eventually softened to permit suits “when
claims ar[o]se from [states’] commercial transactions or
‘private law’ activities”). To that end, the United Nations
Convention on Jurisdictional Immunities of States and Their
Property, to which Saudi Arabia is a party, recognizes that “[a]
State enjoys immunity … from the jurisdiction of the courts of
another State[,]” subject to a handful of specified limitations
not at issue here. U.N. Convention on Jurisdictional
Immunities of States and Their Property, art. 5, opened for
signature Jan. 17, 2005,
https://treaties.un.org/doc/Treaties/2004/12/20041202
%2003-50%20PM/CH_III_13p.pdf; see also id. arts. 10-17
(enumerating exceptions to immunity). The treaty has not yet
gone into effect, but Saudi Arabia’s accession to it is
nevertheless evidence that the Kingdom intends to avail itself
of its immunity in U.S. courts whenever it may lawfully do so.
In light of those background principles, and construing the
King’s statement narrowly, we detect on this record no
24
indication that waiving immunity worldwide is “what [Saudi
Arabia] intended[.]” 23 Khochinsky, 1 F.4th at 8.
2. Commercial Activity
A foreign state is also not immune from any action
“based upon” (1) “a commercial activity carried on in the
United States by the foreign state[,]” (2) “an act performed in
the United States in connection with a commercial activity of
the foreign state elsewhere[,]” or (3) “an act outside … the
United States in connection with a commercial activity of the
foreign state elsewhere” that “causes a direct effect in the
United States[.]” 28 U.S.C. § 1605(a)(2). “Commercial
activity” can be either “a regular course of commercial
conduct” or “a particular commercial transaction or act.” Id.§ 1603(d). And commercial activity is “carried on in the
23
Aldossari’s waiver argument appears to invoke
express, rather than implied, waiver. To the extent he also
asserts an implied waiver, courts have typically found such
waivers only in three scenarios: when the foreign state has
entered into a contract with a choice-of-law clause mandating
the use of U.S. law, when it has responded to a complaint
without asserting immunity, or when it has agreed to arbitrate
disputes in the United States. Ivanenko v. Yanukovich, 995
F.3d 232, 239 (D.C. Cir. 2021); accord In re Tamimi, 176 F.3d
274, 278 (4th Cir. 1999) (citing H.R. Rep. 94-1487, at 18
(1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6617)
(sourcing those scenarios from the FSIA’s legislative history).
None of those things is said to have happened in this case. But,
because Aldossari has not squarely presented the issue, we
need not consider whether to join our sister circuits’ approach
to implied waiver.
25
United States[,]” for purposes for the first clause of
§ 1605(a)(2), if it has “substantial contact” with this country.
Id. § 1603(e).
We have laid out a two-step framework for analyzing a
claimed exception to immunity based on commercial activity.
First, we ask whether there is a “sufficient jurisdictional
connection or nexus between the commercial activity and the
United States” – in other words, whether the foreign state has
engaged in conduct that satisfies one of the three clauses of
§ 1605(a)(2). Fed. Ins. Co., 12 F.3d at 1286. Second, we look
to see if there is a “substantive connection or nexus” between
the relevant commercial activity or act and “the subject matter
of the cause of action[,]” id. – that is, whether the cause of
action is “based upon” the relevant commercial activity or “act
… in connection with a commercial activity[,]” 28 U.S.C.
§ 1605(a)(2).
Aldossari argues that three facts show he has satisfied
the exception. They are that Saudi Arabia, through Saudi
Aramco, “has engaged in routine, regular, and substantial
commercial activities in the United States concerning the oil
market for decades” (Opening Br. at 18); that those two
defendants entered into business with Ripp, a U.S.-based
individual; and that Aldossari’s son Rakan is a Pennsylvania
resident. None of those things, however, can bear the weight
Aldossari puts on them.
The first assertion – that Saudi Aramco engages in
regular oil-related business in and affecting the United States–
may be enough to establish a “commercial activity carried on
in the United States” under the first clause of § 1605(a)(2), at
26
least as to Saudi Aramco. 24 But Aldossari’s argument
nonetheless fails because he has not shown any “substantive
connection or nexus between th[at] commercial activity and
the subject matter of [his] cause of action.” Fed. Ins. Co., 12
F.3d at 1286.
To establish such a nexus, Aldossari must show that his
suit against the sovereign defendants is “based upon” a relevant
commercial activity or act. 28 U.S.C. § 1605(a)(2). “[A]n
action is ‘based upon’ the ‘particular conduct’ that constitutes
the ‘gravamen’ of the suit[,]” so we must “zero[] in on the core
of [Aldossari’s] suit” – the allegations of “sovereign acts that
actually injured [him].” OBB Personenverkehr AG v. Sachs,
577 U.S. 27, 35 (2015) (quoting Saudi Arabia v. Nelson, 507
U.S. 349, 356-57 (1993)).
24
We assume this point without deciding it. Aldossari
claims that Saudi Aramco’s commercial activity is also
attributable to the Saudi government. Given the “strong
presumption” that government instrumentalities are distinct
from their sovereign, however, we could only make that leap if
Aldossari were to demonstrate that Saudi Arabia has
“extensive control” over Saudi Aramco. Crystallex Int’l Corp.
v. Bolivarian Republic of Venezuela, 932 F.3d 126, 140-41 (3d
Cir. 2019), cert. denied, 140 S. Ct. 2762 (2020). That calls for
showing, among other things, “the level of economic control”
by the government and “the degree to which government
officials manage the entity or otherwise have a hand in its daily
affairs[.]” Id. Aldossari’s say-so is not enough to meet that
burden. And even if the record supported such a conclusion,
we would still lack subject matter jurisdiction over the claims
against Saudi Arabia, as further discussed herein.
27
The gravamen of Aldossari’s suit has nothing to do with
Saudi Aramco’s broader oil operations in the United States.
Rather, his complaint focuses very specifically on the money
he says his father was owed – but wrongfully denied – on the
Saint Lucia refinery deal. It is not clear what legal theory
Aldossari is relying on to hold Saudi Arabia and Saudi Aramco
responsible for that alleged loss. They were not parties to the
Ownership Agreement and are alleged to have been involved
only in a separate “contract for the supply of crude oil from …
the Kingdom of Saudi Arabia and/or Saudi Aramco.” (J.A. at
85-86.) But even if they could somehow be liable for a breach
of the Ownership Agreement, that agreement was executed in
Saudi Arabia, involved performance there and in Saint Lucia,
and set Switzerland as the locale for the resolution of disputes.
The corollary agreement for the supply of crude oil involved
only Saudi Arabia and Saint Lucia. Any harm suffered by
Aldossari’s father (and so by Aldossari, if we accept his
asserted right to claim what his father was owed) came from
being denied a share of the profits of the refinery project and
so involved only Saudi Arabia or Saint Lucia, with Switzerland
in the background. His alleged injury has nothing to do with
Saudi Aramco’s worldwide or U.S.-based oil operations. As a
result, there is no “substantive nexus” between the supposed
injury and the claimed commercial activities, Fed. Ins. Co., 12
F.3d at 1286, and so those activities fail to establish
jurisdiction.
Next, Aldossari tries to fit his second and third
jurisdictional “facts” – the U.S. citizenship and domicile of
Ripp, and Rakan’s U.S. citizenship – into § 1605(a)(2)’s third
clause, by arguing that the acts and commercial activities at the
heart of this lawsuit had a “direct effect” in the United States.
28
In Republic of Argentina v. Weltover, Inc., the Supreme Court
clarified that “an effect is ‘direct’ if it follows ‘as an immediate
consequence of the defendant’s … activity[,]’” even if it is not
“substantial[]” or “foreseeab[le.]” 504 U.S. 607, 618 (1992).
In that case, for instance, Argentina unilaterally rescheduled
the maturity date on some of its bonds for which New York
was the designated place of payment. Id. at 618-19. “Because
New York was thus the place of performance for Argentina’s
ultimate contractual obligations,” said the Court, “the
rescheduling of those obligations necessarily had a ‘direct
effect’ in the United States: Money that was supposed to have
been delivered to a New York bank for deposit was not
forthcoming.” Id. at 619. Courts applying Weltover in breach-
of-contract disputes like this one have held that “breaching a
contract that establishes or necessarily contemplates the United
States as a place of performance causes a direct effect in the
United States, while breaching a contract that does not
establish or necessarily contemplate the United States as a
place of performance does not cause a direct effect in the
United States.” Odhiambo v. Republic of Kenya, 764 F.3d 31,
40 (D.C. Cir. 2014) (Kavanaugh, J.), abrogated on other
grounds by Sachs, 577 U.S. 27. 25
25
Accord, e.g., Rogers v. Petroleo Brasileiro, S.A., 673
F.3d 131, 139-40 (2d Cir. 2012) (no direct effect in the United
States when “there was no requirement that payment be made
in the United States nor any provision permitting the [party
entitled to payment] to designate a place of performance” and
“nothing in the language of the [contract] … suggest[ed] a
reasonable understanding that the United States could be a
possible place of performance”); Samco Glob. Arms, Inc. v.
Arita, 395 F.3d 1212, 1217 (11th Cir. 2005) (no direct effect
because “no monies or goods were due in the United States”);
29
While we do not undertake an exhaustive canvass of the
circumstances in which an effect in the United States may be
sufficiently “direct,” it is plain that Aldossari has not pleaded
facts presenting such an effect here. 26 The “place of
performance for [the parties’] ultimate contractual obligations”
under the Ownership Agreement, Weltover, 504 U.S. at 619,
was in Saudi Arabia, where the crude oil for the refinery was
sourced and where bin Nader was to serve as the “local
Manager[,]” and in Saint Lucia, where the refinery was to be
built and operated. (J.A. at 99-100.) There is no suggestion
that any party to the main deal or to the corollary transactions
was required or expected to perform any obligation in the
United States.
Importantly, the particular contractual duty that
Aldossari claims went unfulfilled – payment to Trans Gulf and
United World Trade, Inc. v. Mangyshlakneft Oil Prod. Ass’n,
33 F.3d 1232, 1237 (10th Cir. 1994) (no direct effect when “no
part of the contract in this case was to be performed in the
United States” and “the defendants’ performance of their
contractual obligations had no connection at all with the United
States”).
26
For instance, we can resolve this case without wading
into the circuit split about whether a direct effect must involve
“legally significant acts” in the United States. See Am.
Telecom Co. v. Republic of Lebanon, 501 F.3d 534, 540 (6th
Cir. 2007) (noting that some circuits require such an act, some
consider it without mandating that one be demonstrated, and
others disclaim any reliance on the legally-significant-act
standard).
30
bin Nader – would have been expected in Saudi Arabia, where
bin Nader and Trans Gulf were located. 27 Aldossari does not
allege that any of the “arrangement[s] [between the parties]
called for [the] use of [a U.S.] bank account or invited [a party]
to demand payment within the United States[.]” Valambhia v.
United Republic of Tanzania, 964 F.3d 1135, 1142 (D.C. Cir.
2020), cert. denied, 141 S. Ct. 2512 (2021). He points us to
letters that Ripp sent from his offices in the United States to
bin Nader concerning the deal and their side arrangement, but
neither those letters nor the terms of any of the relevant
agreements (at least as revealed to us) evince an obligation by
any of the parties to send money into or out of U.S.-based
financial accounts. 28 Any effects felt in the United States from
27
There is one potential direct effect in the United States
that Aldossari does not mention. Transcontinental’s receipt of
payment for its share of the proceeds of the refinery project
may have taken place in accounts located in the United States,
though that is a matter of speculation. Even if that qualified as
a direct effect, however, this case is “based upon” the
nonpayment to bin Nader, not Transcontinental’s collection of
its cut of the profits, and so the flow of money to
Transcontinental does not bring this case within the
commercial-activity exception.
28
It is also doubtful that, even if Ripp had expressly
promised to send money from an account based in the United
States, that would have sufficed on its own to satisfy
§ 1605(a)(2)’s third clause. Cf. Valambhia v. United Republic
of Tanzania, 964 F.3d 1135, 1142 (D.C. Cir. 2020) (suggesting
that a “foreign sovereign’s unilateral choice to make payments
from a U.S. account” is insufficient absent “multiple
31
the commercial activities at the heart of this case were therefore
indirect.
The U.S. domicile of one of the defendants – Ripp –
does not change the analysis. 29 The mere presence in a lawsuit
of a U.S. defendant cannot justify hailing into court foreign
sovereign parties that have engaged in a purely overseas
business relationship with the plaintiff. See Maizus v. Weldor
Tr. Reg., 820 F. Supp. 101, 104 (S.D.N.Y. 1993) (“[T]his Court
is aware of no case in which” “the fact that one of the …
defendants … is an American corporation[,]” without more,
“has been found to be a sufficient basis for jurisdiction under
the FSIA.”). From all appearances, Ripp was domiciled in the
United States whether or not the oil refinery deal took place;
there is no coherent argument for saying that their domiciles in
this country were somehow an “effect” of the events
underlying this case. See Effect, Black’s Law Dictionary (6th
ed. 1990) (“result; outcome; consequence”); Effect, Webster’s
Third New International Dictionary (1971) (“something that is
produced by an agent or cause [or] something that follows
immediately from an antecedent”). Unless a defendant’s
location in the United States somehow stemmed from the
events underlying the lawsuit, it cannot be said that the
defendant’s domicile is an “effect,” much less a direct effect,
[additional] indicia of direct effect in the United States”), cert.
denied, 141 S. Ct. 2512 (2021).
29
Aldossari also tries to leverage the U.S. domicile of
Transcontinental, but he did not even serve that corporation,
nor did it enter an appearance, so it is not truly a defendant in
this case. Even if it were, our discussion of the effect of Ripp’s
U.S. citizenship and domicile applies with equal force to it.
32
of any acts upon which the suit is based. See Weltover, 504
U.S. at 618 (requiring that a direct effect be “an immediate
consequence” of the foreign state defendant’s actions).
And the same holds true if, as here, a plaintiff is based
in the United States. Absent an indication that the plaintiff’s
U.S. residence or citizenship came about as a result of the
subject matter of the litigation, his location is not an “effect”
of any pertinent act. See Odhiambo, 764 F.3d at 40 (a
plaintiff’s “U.S. presence or U.S. citizenship alone
[cannot] … suffice[] to create a direct effect in the United
States”); Adler v. Federal Republic of Nigeria, 107 F.3d 720,
726-27 (9th Cir. 1997) (“[M]ere financial loss by a person …
in the U.S. is not, in itself, sufficient to constitute a ‘direct
effect.’”). The plaintiff’s location or citizenship tells us
nothing of any effects caused by the defendants’ acts. A
contrary rule would permit jurisdiction in practically every
case in which a U.S. domiciliary claimed harm from the acts of
a foreign sovereign, an outcome that would undermine the
FSIA’s background presumption of affording immunity to
foreign states. 30 See Westfield v. Fed. Republic of Germany,
633 F.3d 409, 414 (6th Cir. 2011) (“[W]e are … wary of
30
Aldossari’s attempt to rely on Rakan’s citizenship to
establish a direct effect in the United States is particularly
strained, given that Rakan played no part in (and was not even
alive during) the commercial transactions at issue here. Any
effect on Rakan is too “remote and attenuated[,]” since it was
caused by the “intervening act” of Aldossari assigning his
claims to Rakan. Terenkian v. Republic of Iraq, 694 F.3d 1122,
1133-34 (9th Cir. 2012) (quoting Republic of Argentina v.
Weltover, Inc., 504 U.S. 607, 618 (1992)).
33
applying [the ‘direct effect’] requirement too loosely such that
our courts become a haven for airing the world’s disputes.”).
In sum, the very few and thin strands of this case that
pass through the United States are insufficient to justify
exercising jurisdiction under the FSIA over the claims against
Saudi Arabia and Saudi Aramco. The District Court’s
dismissal of those claims for lack of subject-matter jurisdiction
was thus fully justified.
C. The Crown Princes: Personal Jurisdiction 31
The District Court held that both the current and the
former Crown Prince were entitled to dismissal under the
common law of immunity for officials of foreign governments.
See Samantar v. Yousuf, 560 U.S. 305, 319, 325 (2010)
(holding that the common law, rather than the FSIA, governs
the immunity of foreign officials). We need not decide
whether that analysis was correct, because we can instead hold
that their dismissal from the suit was proper because the
District Court lacked personal jurisdiction over either of them.
31
Considering in the first instance the Crown Princes’
arguments for dismissal on personal-jurisdiction grounds, we
“must accept all of [Aldossari’s] allegations as true and
construe disputed facts in [his] favor[,]” just as we would in
reviewing a district court’s ruling on a Rule 12(b)(2) motion to
dismiss for lack of personal jurisdiction. Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002) (citations
omitted). Aldossari nonetheless bears the ultimate burden of
“demonstrating the facts that establish personal jurisdiction[.]”
Id.34
Although we typically begin our analysis in each case
by ensuring that we have subject-matter jurisdiction over the
claims, we have discretion to instead start with personal
jurisdiction when we are presented with “a straightforward
personal jurisdiction issue presenting no complex question of
state law” and when resolving the subject-matter jurisdiction
issue would implicate “difficult and novel question[s.]”
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578, 588
(1999). That is the case here. Both Crown Princes’ claims of
immunity as officials of a foreign state raise interesting
questions concerning the appropriate test to apply in analyzing
such claims, questions that courts have yet to definitively
resolve. 32 See Lewis v. Mutond, 918 F.3d 142, 146 (D.C. Cir.
32
For example, we have yet to decide whether we
should adhere to the U.S. Department of State’s policy of
granting immunity to foreign officials for any actions taken in
their official capacity, or whether we should follow the more
restrictive test set forth in the Restatement (Second) of The
Foreign Relations Law of the United States § 66(f), which
favors immunity for any acts a “public minister, official, or
agent” of a foreign state “performed in his official capacity” if
“the effect of exercising jurisdiction would be to enforce a rule
of law against the state.” Broidy Cap. Mgmt. LLC v. Muzin,
No. 19-CV-0150 (DLF), 2020 WL 1536350, at *5-6 (D.D.C.
Mar. 31, 2020), aff’d, 12 F.4th 789 (D.C. Cir. 2021). Given
the important role the executive branch plays in the realm of
foreign affairs, Verlinden B.V. v. Cent. Bank of Nigeria, 461
U.S. 480, 486 (1983), we are inclined to think that the
executive’s view of immunity is due more deference than the
35
2019) (applying a legal framework for immunity agreed on by
the parties “without deciding the issue” of what standard
should govern). The lack of personal jurisdiction over the
Crown Princes, meanwhile, is clear under established law, so
dismissing the claims against them was appropriate. 33
A court may exercise personal jurisdiction over a
defendant in a civil case only if it has the authority to do so
from a source of positive law (such as a statute or a rule of civil
procedure) and if exercising jurisdiction would not violate “the
outer limits” set by the Due Process Clauses of the Fifth and
Fourteenth Amendments. Fischer v. Fed. Express Corp., 42
F.4th 366, 380-83 (3d Cir. 2022). Federal Rule of Civil
Procedure 4(k)(1)(A) authorizes the exercise of personal
jurisdiction over a defendant who has been served with process
Second Restatement’s, but we do not need to decide that
question now.
33
Both Crown Princes have preserved the issue. The
current Crown Prince raised it in the District Court, although
the Court did not rule on it. The former Crown Prince did not
make the argument there, but he did not have the opportunity
to file a responsive pleading or do anything other than enter a
notice of appearance of counsel in the short time between when
he appeared and when the District Court dismissed the claims
against him. His assertion of a lack of personal jurisdiction for
the first time before us is timely. See Blessing v.
Chandrasekhar, 988 F.3d 889, 899 (6th Cir. 2021) (holding
that filing a notice of appearance “does not on its own
constitute waiver” of a personal-jurisdiction defense and that a
defendant does not lose the argument unless he fails to assert it
in his first responsive pleading).
36
if the defendant “is subject to the jurisdiction of a court of
general jurisdiction in the state where the district court is
located[.]” Federal courts thus “ordinarily follow state law in
determining the bounds of their jurisdiction over persons.”
Daimler AG v. Bauman, 571 U.S. 117, 125 (2014). Aldossari
brought suit in the U.S. District Court for the Eastern District
of Pennsylvania, so we look to Pennsylvania’s long-arm
statute, which permits the exercise of jurisdiction “to the fullest
extent allowed under the Constitution of the United States and
may be based on the most minimum contact with this
Commonwealth allowed under the Constitution of the United
States.” 42 Pa. Cons. Stat. § 5322(b). The statutory inquiry in
this case thus merges with the constitutional one.
A defendant may be subject to suit consistent with the
constitutional guarantee of due process only if he has “certain
minimum contacts with the State such that the maintenance of
the suit does not offend traditional notions of fair play and
substantial justice.” Goodyear Dunlop Tires Operations, S.A.
v. Brown, 564 U.S. 915, 923 (2011) (cleaned up) (quoting Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Personal
jurisdiction can either be general or specific, O’Connor v.
Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007), but
Aldossari fails to establish that the exercise of either type of
jurisdiction is appropriate here.
General (or “all-purpose”) jurisdiction permits a court
to hear any and all claims against a defendant brought within a
certain forum, even if those claims have nothing to do with any
actions the defendant took in the forum. Goodyear, 564 U.S.
at 919. The paradigmatic forum for the exercise of general
jurisdiction “is the individual’s domicile[,]” id. at 924, which,
for both Crown Princes, is Saudi Arabia.
37
Aldossari nonetheless asserts that the current Crown
Prince is subject to general jurisdiction due to his “extensive
contacts with the United States[,]” both in his capacity as
Crown Prince and on behalf of Saudi Aramco. 34 (Reply Br. at
12-13.) It appears that Aldossari is invoking the standard for
permitting general jurisdiction over corporations, which is
appropriate in a forum with which the defendant has such
“continuous and systematic” contacts “as to render [the
defendant] essentially at home in the forum State.” Goodyear,
564 U.S. at 919. He cites no authority for the assertion that a
natural person who is a citizen of a foreign nation and residing
there can be subject to general jurisdiction in the United States
under Goodyear. 35 Taking that framework as applicable,
however, the current Crown Prince’s contacts with the United
States – which, on this record, comprise vague allegations from
Aldossari and the Crown Prince’s admission that he has
sometimes engaged in diplomacy with U.S. government
officials – still fall well short of the necessary showing.
General jurisdiction requires demonstrably more in the way of
continuous and systematic contacts. Cf. BNSF Ry. Co. v.
34
Aldossari does not invoke general jurisdiction as to
the former Crown Prince.
35
He might have pointed us to Waldman v. Palestine
Liberation Org., in which the court noted that the “at home”
standard for general jurisdiction over corporations “was based
on an analogy to general jurisdiction over individuals” and
remarked that “there is no reason to invent a different test for
general personal jurisdiction depending on whether the
defendant is an individual, a corporation, or another entity.”
835 F.3d 317, 332 (2d Cir. 2016).
38
Tyrrell, 137 S. Ct. 1549, 1554, 1559 (2017) (general
jurisdiction inappropriate over out-of-state corporation, even
though it had “over 2,000 miles of railroad track[,]” a facility,
and more than 2,000 employees in the forum state).
Nor do Aldossari’s specific jurisdiction arguments avail
him. That form of personal jurisdiction is “case-specific[,]”
Goodyear, 564 U.S. at 927, and may be exercised if a
plaintiff’s claims “arise out of or relate to the defendant’s
contacts with the forum[,]” Fischer, 42 F.4th at 372 (quoting
Bristol-Myers Squibb Co. v. Superior Ct., 137 S. Ct. 1773,
1780 (2017)). Put otherwise, “the defendant’s suit-related
conduct must create a substantial connection with the forum
State[,]” giving rise to a “relationship among the defendant, the
forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 283-
84 (2014).
No such relationship connects the Crown Princes or
their alleged conduct underlying this case to Pennsylvania.
The complaint accuses the current Crown Prince of only a few
acts: ordering the arrest of the former Crown Prince and the
seizure of his assets and preventing him from performing under
the Ownership Agreement. That conduct, if it took place,
occurred in Saudi Arabia and bore no connection to
Pennsylvania. Nothing in the record reveals any “contacts with
the forum” by the current Crown Prince, much less any
contacts related to the allegations in this case. 36 Bristol-Myers
In his briefing, Aldossari attempts to impute Saudi
36
Aramco’s worldwide oil operations, including those in the
United States, to the current Crown Prince, who he says is
Supreme Chairman of the company. As discussed previously,
however, none of those commercial activities bears any
39
Squibb, 137 S. Ct. at 1780. The complaint is plainly inadequate
to permit the exercise of personal jurisdiction over the current
Crown Prince.
And as for the former Crown Prince, all of the conduct
in which he was allegedly involved – the execution and
performance of the Ownership Agreement, and the much later
meeting with Aldossari – took place in Saudi Arabia, Saint
Lucia, or London. Even if we were to assume, as Aldossari
claims, that the former Crown Prince was personally a party to
the oil refinery deal, 37 the contract was signed in Saudi Arabia
relationship to the transactions at the core of this case, see
supra Section II.B.2, and so they cannot serve as grounds for
specific jurisdiction. And Saudi Aramco’s business dealings
in the United States, at least as conclusorily alleged here, are
not sufficient to make it so “essentially at home” here as to
justify the exercise of general jurisdiction. Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). So
even if the company’s contacts could be attributed to the
Crown Prince – which we doubt – they would not suffice to
establish jurisdiction over him.
37
That assumption appears dubious. Although we take
Aldossari’s allegations as true, they must give way to contrary
evidence in the Ownership Agreement attached to the
complaint. See Vorchheimer v. Philadelphian Owners Ass’n,
903 F.3d 100, 112 (3d Cir. 2018) (when a plaintiff’s “own
exhibits contradict [his] allegations in the complaint, the
exhibits control”). That contract’s lists of parties and
ownership percentages and discussion of responsibilities all
mention Saudi Est., but not the former Crown Prince. By
contrast, “[t]he Owner of Saudi Est.” (J.A. at 102) – who
40
and concerned the use of Saudi oil in a refinery in Saint Lucia.
It is not alleged that any aspect of the project was connected to
the forum state of Pennsylvania.
Aldossari argues that the former Crown Prince can still
be subject to personal jurisdiction in Pennsylvania because the
Ownership Agreement had as counterparties Ripp, a
Pennsylvania citizen, and Transcontinental, a Delaware
corporation. That position, however, is squarely foreclosed by
precedent. Merely entering into a contract with a resident of a
state, absent any indication that the contract was executed or
performed there, is insufficient to justify the exercise of
personal jurisdiction in that state. See Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 478 (1985) (“If the question is
whether an individual’s contract with an out-of-state party
alone can automatically establish sufficient minimum contacts
in the other party’s home forum, we believe the answer clearly
is that it cannot.”); United States v. Swiss Am. Bank, Ltd., 274
F.3d 610, 621-22 (1st Cir. 2001) (no personal jurisdiction when
“the business relationship between” foreign defendant and
domestic counterparty “involve[d] no in-forum activities[,]”
since defendant’s “business relationship and/or contract with
[domestic counterparty] … is not itself a contact with the
United States as a forum”). Because none of the former Crown
Prince’s conduct related to this litigation had a “substantial
connection with the forum State[,]” Walden, 571 U.S. at 284,
the District Court lacked personal jurisdiction over him.
Aldossari claims was the former Crown Prince – is only
mentioned in passing as entitled to a seat on the refinery’s
board.
41
As a last resort, Aldossari tries to salvage his claims
against the Crown Princes by arguing, as he did in the District
Court, that he should be afforded jurisdictional discovery
before his claims are dismissed. To be sure, “[a] plaintiff faced
with a motion to dismiss for lack of personal jurisdiction is
entitled to reasonable discovery[.]” Second Amend. Found. v.
U.S. Conf. of Mayors, 274 F.3d 521, 525 (D.C. Cir. 2001)
(alterations in original). But that right is not unconditional. A
plaintiff cannot show up in court with “bare allegations” and
force defendants to start handing over evidence. Eurofins
Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147,
157 (3d Cir. 2010). Rather, jurisdictional discovery is
appropriate when “the plaintiff presents factual allegations that
suggest ‘with reasonable particularity’ the possible existence
of the requisite ‘contacts between [the party] and the forum
state[.]’” Id. (citation omitted) (first alteration in original).
Here, Aldossari’s bare allegations do not give us any
reason to think that, with more evidence, he could identify
some conduct by the Crown Princes that connects them to
Pennsylvania, much less link that conduct to the allegations
that underlie his claims. Moreover, Aldossari has not pointed
to any specific facts he might be able to discover that would
support the exercise of personal jurisdiction. That being so,
letting him take discovery would be the launch of a “fishing
expedition[,]” which we decline to facilitate. Id. Because no
personal jurisdiction exists over the current and former Crown
Princes, the District Court’s dismissal of the claims against
them was warranted.
42
D. Ripp: Subject-Matter Jurisdiction and
Appellate Rule 43
Ripp participated pro se in the District Court
proceedings and moved to dismiss on standing, venue, and
merits grounds, prevailing on the first of those bases. Three
months after Aldossari filed his notice of appeal, however,
Ripp died. Aldossari’s briefing did not specifically address the
District Court’s dismissal of his claims against Ripp or take a
clear position on whether he intended to continue pursuing
those claims. That alone could be a forfeiture. At argument,
however, his counsel took the position that Aldossari still
wishes to pursue those claims. Counsel also asserted that no
estate has been opened for Ripp.
Even if there were an estate, though, Aldossari’s effort
to pursue a claim would run into an early roadblock: the
absence of legal authority to exercise subject-matter
jurisdiction over his claims against Ripp. This is an issue we
have “an independent obligation” to consider of our own
accord. Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006).
The sole basis for jurisdiction identified in the complaint is the
FSIA, which – in addition to failing to permit the exercise of
jurisdiction over the claims against any of the other defendants
in this case, see supra Section II.B – is obviously inapplicable
to the claims against Ripp, who was a natural person domiciled
in the United States. See 28 U.S.C. § 1330(a) (granting district
courts with jurisdiction over claims against “foreign state[s]”).
But Aldossari, as the party asserting the existence of federal
jurisdiction, had the burden of alleging a legal basis for
exercising such jurisdiction. Lincoln Ben. Life Co. v. AEI Life,
LLC, 800 F.3d 99, 105-06 (3d Cir. 2015); see also Fed. R. Civ.
P. 8(a)(1) (requiring a plaintiff to set out “a short and plain
43
statement of the grounds for the court’s jurisdiction”). He has
not done so for his claims against Ripp, nor is a basis for
jurisdiction evident on this record. Dismissal of those claims
was therefore appropriate. See Williams v. Marinelli, 987 F.3d
188, 196 (2d Cir. 2021) (noting the “inflexible” rule that a court
must, “of its own motion,” order dismissal “in all cases where
… jurisdiction does not affirmatively appear on the record”
(quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379,
382 (1884)); cf. United States v. Yeager, 303 F.3d 661, 666 (6th
Cir. 2002) (dismissing appeal because appellant “fail[ed] to
identify a viable statutory basis for this Court's appellate
jurisdiction”).
Assuming we had subject-matter jurisdiction over the
claims against Ripp, however, we would still dismiss the
appeal against him on another threshold basis: Ripp has not
been replaced in this appeal by any person or entity that can
represent his interests. When a party dies during the pendency
of an appeal, “the decedent’s personal representative may be
substituted as a party on motion filed with the circuit clerk by
the representative or by any party.” Fed. R. App. P. 43(a)(1).
If there is no representative, we may “direct appropriate
proceedings” once a party has “suggest[ed] the death on the
record[.]” Id.Appellate Rule 43 offers no guidance on what those
“appropriate proceedings” may be, in contrast to the analogous
civil rule for district-court proceedings, which provides that
“the action by or against the decedent must be dismissed” if no
one moves to substitute a party within ninety days of the death
being stated on the record. Fed. R. Civ. P. 25(a)(1). Even so,
several of our fellow circuits have interpreted Appellate Rule
43 to permit dismissing the claims involving the decedent
44
when no representative has been substituted within a
reasonable time period. See Gamble v. Thomas, 655 F.2d 568,
569 (5th Cir. Unit A 1981) (“deem[ing] that Rule 43(a) implies
the power” to dismiss an appeal “if no motion for substitution
is made within a reasonable period” because it is “derived from
[Civil Rule] 25(a)”); Johnson v. Morgenthau, 160 F.3d 897,
898-99 (2d Cir. 1998) (holding that “best course” was to
dismiss appeal when no representative had come forward); cf.
Deibel v. Hoeg, 998 F.3d 768, 768 n.* (7th Cir. 2021)
(admonishing parties that a deceased defendant-appellee
would be “dismiss[ed] … as a party” “[u]nless within ten days
[appellant] files an appropriate motion for substitution”). That
conclusion is consistent with the advisory committee’s note to
Rule 43(a), which characterizes the Rule as laying out “a
procedure similar to the rule on substitution in civil actions in
the district court.”
Several of our fellow courts have taken a different
approach in applying Appellate Rule 43, going ahead and
ruling on the issues presented in the appeal as if no death had
occurred. See, e.g., Ciccone v. Sec’y of Dep’t of Health &
Hum. Servs., 861 F.2d 14, 15 n.1 (2d Cir. 1988) (“[A]lthough
no motion for substitution has been filed in this Court, we may
proceed to decide [decedent]’s appeal.” (citation omitted));
Hardie v. Cotter & Co., 849 F.2d 1097, 1098 n.2 (8th Cir.
1988) (“While a personal representative has yet to be
substituted as a party in this action, we find it appropriate to
dispose of [decedent]’s claims in this opinion.”); Wright v.
Com. Union Ins. Co., 818 F.2d 832, 834 n.1 (11th Cir. 1987)
(same). But in all those cases the decedent was the plaintiff-
appellant, and the defendant-appellee had no incentive to
proactively go out and find a representative to take over the
task of advancing a case against itself. Nor was it under any
45
obligation to do so, as defendants generally have no duty to
take affirmative measures to move a case forward when the
plaintiff has failed to pursue it in a timely manner. See Dodson
v. Runyon, 86 F.3d 37, 41 (2d Cir. 1996) (noting that
defendants are not “under any duty to take any steps to bring
[a] case to trial”). In such circumstances, the best use of
judicial resources may be to decide the merits of the appeal and
grant the defendant-appellees a resolution of the case.
The calculus looks different when it is a plaintiff-
appellant who wishes to proceed with an appeal upon the death
of a defendant-appellee. After all, it is the plaintiff who bears
the burden of diligently prosecuting his case. Cf. Fed. R. Civ.
P. 41(b) (permitting dismissal of an action when a plaintiff
“fails to prosecute”). And that responsibility follows him if he
takes an appeal of a case-dispositive order. United States v.
Turner, 438 F.3d 67, 71 (1st Cir. 2006) (“[A]s the appellant, he
bore the burden to utilize all reasonable measures to prosecute
his appeal.”). It is appropriate, then, to place the onus on the
plaintiff-appellant to timely identify a person (such as a legal
representative or the trustee, administrator, or executor of the
decedent’s estate) or an entity (such as an estate or a trust) that
can be substituted for the decedent and that can defend the
decedent’s interests. Without someone or something on the
other side of the “v.” in the caption, the plaintiff’s claims are
pointless and dismissal of the appeal is warranted.
That is the situation here. Aldossari’s counsel asserted
at argument that no estate had been opened for Ripp, and he
was unable to say that one would ever be opened. The mere
possibility that there may someday be a substitute party that
46
Aldossari can bring to court is not enough to justify expending
judicial resources on entertaining a one-sided cause of action. 38
E. Disposition
As we have explained, we agree with the District Court
that dismissal of all of Aldossari’s claims was warranted. We
are unable to affirm its order of dismissal, however, because
the Court erred in dismissing the complaint with prejudice. “A
dismissal with prejudice ‘operates as an adjudication on the
merits’” and typically prevents the plaintiff from subsequently
litigating his claims in either the original court or any other
forum. Papera v. Pa. Quarried Bluestone Co., 948 F.3d 607,
610-11 (3d Cir. 2020). “Dismissal for lack of standing[,]” by
contrast, “reflects a lack of jurisdiction” rather than a view on
the merits, “so dismissal of [Aldossari’s] complaint should
have been without prejudice.” Thorne v. Pep Boys Manny Moe
& Jack Inc., 980 F.3d 879, 896 (3d Cir. 2020). Similarly, the
grounds for our holding that the complaint was correctly
dismissed are all “threshold, nonmerits issue[s]” that do not
require us to “assum[e] … substantive ‘law-declaring power.’”
Sinochem Int’l Co., 549 U.S. at 433. Neither our opinion nor
38
We have previously indicated in dicta that,
“[r]egardless of whether [a party] has failed to comply with
Rule 43(a), we think it is quite clear that, at some point, the
failure to substitute a proper party for a deceased appellant
moots the case” and deprives us of jurisdiction. Ortiz v. Dodge,
126 F.3d 545, 550-51 (3d Cir. 1997). Because we resolve the
appeal against Ripp on subject-matter jurisdiction and Rule 43
grounds, we need not consider whether the claims against Ripp
have become moot in the constitutional sense.
47
the District Court’s reflects a view on the merits that would
have claim-preclusive effects, so the dismissal must be without
prejudice. Papera, 948 F.3d at 611.
It appears that the District Court’s intent was to make
its order final and therefore appealable, once Aldossari had
elected to stand on his complaint rather than seek to amend it.
See Weber v. McGrogan, 939 F.3d 232, 238 (3d Cir. 2019)
(“[W]hen a plaintiff prefers not to amend, he ‘may file an
appropriate notice with the district court asserting his intent to
stand on the complaint,’” at which point the court can issue an
order making its dismissal final and allow the plaintiff to take
an appeal.). But making an order dismissing a case final –
ending the litigation in the district court and enabling the
plaintiff to trigger our appellate jurisdiction, 28 U.S.C. § 1291– is not the same as making the dismissal with prejudice, which
ends the district-court litigation and amounts to a rejection of
the plaintiff’s claims on the merits that has preclusive effect on
future suits. Consistent with that distinction, it is necessary
here to vacate and remand for the limited purpose of allowing
the District Court to modify its dismissal order to be without
prejudice.
III. CONCLUSION
For the foregoing reasons, we will vacate the District
Court’s dismissal with prejudice and remand with directions to
dismiss the complaint without prejudice.
48