Nader Aldossari v. Joseph Ripp

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