Tag Archives: 10-7007

Failed Motion for Summary Judgment Preserves Purely Legal Issue for Appeal

To preserve a purely legal question for appeal, a party need not move for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure, if she has already moved for and lost summary judgment on the issue.   Continue reading

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Crocodile Tears Thwart Elephant Plaintiffs

If your constitutional standing depends on a paid plaintiff’s allegation of emotional and aesthetic injury suffered as a result of mistreatment of the elephants he once worked with, make sure he knows their names.

On Friday, the D.C. Circuit affirmed the district court’s judgment in favor of the owner of the Ringling Brothers and Barnum & Bailey Circus on claims brought under the citizen-suit provision of the Endangered Species Act. Because the plaintiffs lacked standing, neither court reached the merits of their claim that the Circus’s use of bullhooks and chains on its elephants constitutes an unlawful “take” under the Endangered Species Act.

The mercenary individual plaintiff, a former Circus employee who “received at least $190,000 from the organizational plaintiffs,” failed to prove his alleged injury as a matter of fact. He was unable to identify on video the individual elephants he had worked with for two and a half years, he passed up opportunities to visit them, and he struggled to recall their names.

The Animal Protection Institute failed to establish informational standing because it had no legal right to information on unlawful “takes.” And its diversion-of-resources theory of standing failed because the API did not establish a causal link between the Circus’s use of bullhooks and chains and the public impression that such implements do not harm elephants—an impression the organization sought to reverse through advocacy. Though ruling for the Circus, the Court declined its invitation to announce a bright-line rule denying diversion-of-resources standing to parties whose only injury is to their advocacy efforts. The Court noted that the API did not assert organizational standing on behalf of its members.

The Court did not say whether it took judicial notice of the Circus’s elephant parade that marched up 3rd Street, past the E. Barrett Prettyman United States Courthouse, on March 22, 2011—the very day the Circus filed its opening brief in the D.C. Circuit.

Photo by Elvert Barnes

From the Opinion:

[T]he district court’s conclusion that Rider failed to credibly prove an emotional attachment to any particular elephant rested on extensive factual findings, including Rider’s difficulty recalling the elephants’ names, his use of the bullhook in Europe, his lack of forthrightness about payments he received from the organizational plaintiffs, and various inconsistencies in his testimony.

Having gone to trial, API bore the burden of proving causation, not through logic, but through “specific facts” supported adequately by testimony or other evidence.

American Society for the Prevention of Cruelty to Animals v. Feld Entertainment, No. 10-7007 (Oct. 28, 2011) (Tatel, J., joined by Garland, J., & Brown, J.).