Animal Welfare Inst. v. Feld Entm't, Inc.

• Decision Date: 29 March 2013
• Docket Number: Case No. 03–2006 (EGS/JMF).
• Citation: 944 F.Supp.2d 1
• Parties: ANIMAL WELFARE INSTITUTE, et al., Plaintiffs, v. FELD ENTERTAINMENT, INC., Defendant.
• Court: U.S. District Court — District of Columbia

944 F.Supp.2d 1

ANIMAL WELFARE INSTITUTE, et al.,¹ Plaintiffs,

v.FELD ENTERTAINMENT, INC., Defendant.

Case No. 03–2006 (EGS/JMF).

United States District Court, District of Columbia.

March 29, 2013.

Bernard J. Dimuro, Hillary J. Collyer, Stephen Lybrook Neal, Jr., DiMuroGinsberg, PC, Alexandria, VA, for Plaintiffs.

John M. Simpson, Joseph T. Small, Jr., Michelle C. Pardo, Kara L. Petteway, Lance L. Shea, Rebecca E. Bazan, Fulbright & Jaworski, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

On December 30, 2009, following a six week non-jury trial, this Court granted judgment in favor of Feld Entertainment Inc., (“FEI”) in this Endangered Species Act litigation commenced by one individual, Tom Rider (“Rider”), and several non-profit organizations advocating for animal rights. ASPCA v. Feld Entm't Inc., 677 F.Supp.2d 55 (D.D.C.2009) (hereinafter “ASPCA II ” or “2009 Opinion”). Familiarity with the 2009 Opinion is assumed. Pursuant to Local Rule 54.2, the attorneys' fees issues were held in abeyance until the appellate process had concluded. On October 28, 2011, the Court of Appeals affirmed judgment for FEI and against both the individual plaintiff, Rider, and the sole organizational plaintiff still asserting claims in the case, Animal Protection Institute (“API”). ASPCA v. FEI, 659 F.3d 13 (D.C.Cir.2011) (hereinafter “ASPCA III ”). On January 11, 2012, the Court of Appeals denied the plaintiffs' petition for rehearing.

FEI now moves for an award of attorneys' fees against the plaintiffs and their counsel, jointly and severally, under (1) the fee shifting provision of the Endangered Species Act (“ESA”), 16 U.S.C. § 1540(g)(4); (2) the court's inherent authority; and (3) 28 U.S.C. § 1927. FEI also seeks fees against a non-party, the Humane Society of the United States (“HSUS”). The parties agreed to bifurcate the fee litigation to determine first, whether FEI is entitled to fees, and if so, second, the appropriate amount. The first phase is before the Court.

This is the next chapter in this extraordinary litigation, which commenced over a decade ago.² After eleven years, including two appeals, protracted, contentious, and expensive discovery, and a six week trial, the plaintiffs were unable to produce any credible evidence that any of them had standing to pursue their claims. To the contrary, it was conclusively determined that Rider was a paid plaintiff, hired by the other plaintiffs and their counsel, who had a “motive to falsify” his testimony so that he would continue to be paid. ASPCA II, 677 F.Supp.2d at 89. Things went just as badly for the organizational plaintiffs, most of whom dropped out of the case during the trial, after forcing FEI to prepare a defense against each of them. The standing arguments of API, the sole remaining plaintiff, were found devoid of merit as a matter of fact and of law by this Court and the Court of Appeals. Id. at 94–100;ASPCA III, 659 F.3d at 22–28. It is against this extraordinary backdrop that this Court concludes this case was groundless and unreasonable from its inception, and, therefore, that FEI should recover the attorneys' fees it incurred when it was forced to defend itself in this litigation.

Pending before the Court is Defendant FEI's Motion for Entitlement to Attorneys' Fees and Non–Party HSUS's Motion to Strike HSUS from FEI's Motion for Entitlement to Attorneys' Fees. Upon consideration of the motions, the oppositions, and replies thereto, the entire record, and for the reasons explained below, the Court concludes that attorneys' fees are warranted, jointly and severally against all plaintiffs, under the fee shifting provision of the ESA, 16 U.S.C. § 1540(g)(4). The Court further concludes that pursuant to 28 U.S.C. § 1927, plaintiffs' counsel Katherine Meyer and her law firm, Meyer, Glitzenstein & Crystal (“MGC”) are jointly and severally liable for FEI's attorneys' fees incurred in litigating the portion of its Motion to Compel which sought information about Tom Rider's financial relationship with animal rights advocates. See FEI's Mot. to Compel Testimony of Plaintiff Thomas Eugene Rider, ECF No. 101; see also Order of August 23, 2007, 244 F.R.D. 49 (D.D.C.2007), Granting in Part FEI's Motion to Compel, ECF No. 178. In light of these determinations, the Court does not reach the question whether an award of attorneys' fees could also be awarded pursuant to the Court's inherent authority.

FEI's request that the Court award attorneys' fees against plaintiffs' counsel, other than as set forth above, is not justified by the record in this case. Accordingly, these individuals are not liable for fees. Finally, FEI's request that the Court award attorneys' fees against non-party HSUS is not justified by FEI's Motion, and accordingly, the Court does not hold HSUS liable for fees at this time.

I. BACKGROUND

Plaintiffs originally commenced this lawsuit against FEI in July 2000, alleging that its use of bullhooks and chains in connection with the Asian elephants in its Ringling Brothers circus violates the Endangered Species Act. Specifically, plaintiffs alleged that defendant's use of these instruments constitutes a “take” of the elephants in violation of the ESA by “harming,” “harassing,” or “wounding” the elephants. ASPCA II, 677 F.Supp.2d at 58–59.

It is well settled that standing is the threshold question in every civil case in federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “To satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent ... (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 560–61, 112 S.Ct. 2130. Rider, as an individual, and the remaining plaintiffs, as organizations, asserted standing under different legal theories and alleged different facts in support of their standing claims. This Court dismissed the case for lack of standing in 2001. See Mem. Op & Order, Civ. No. 00–1641 (June 29, 2001). Plaintiffs appealed, and the Circuit reversed the judgment and remanded the case in 2003. ASPCA v. Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334 (D.C.Cir.2003) ( “ASPCA I ”). Six years later, following bitter and protracted discovery battles and extensive motions practice, the case was tried before the Court without a jury.

The 2009 Opinion, based on the evidence presented during the trial, contains over one hundred Findings of Fact and thirty two Conclusions of Law. The Court carefully considered the testimony of approximately thirty witnesses and hundreds of exhibits in an effort to find any evidence that any of the plaintiffs had standing to pursue their claims. There was none. The voluminous decision will not be repeated here, but a summary recitation of some of the findings of fact and conclusions of law will demonstrate the groundless nature of the claims. Unless otherwise noted, the information below is from the 2009 Opinion.³

A. Tom Rider

Rider, the only individual plaintiff in the case, had worked for FEI as a “barn man,” feeding, cleaning up after, and watching over some of Ringling Brothers' traveling elephants from 1997–1999. ASPCA II, 677 F.Supp.2d at 58. He claimed that (1) he had developed a strong personal and emotional attachment to these elephants, who he referred to as his “girls;” (2) he left his job at Ringling Bros. because of the mistreatment of the elephants; (3) he would like to work with the elephants again and would attempt to do so if the elephants were relocated; and (4) he would like to visit the elephants again, but cannot do so without being injured from seeing the animals and detecting their mistreatment, which he can discern without actually observing the mistreatment. Id. at 67. In the original Complaint, filed in July 2000, as well as the First Amended Complaint filed in 2001, the plaintiffs represented that Rider would like to visit or observe his “girls,” but could not do so without injury, because he could detect the effects of their mistreatment just by looking at them. Id. Later, in another iteration of the complaint filed in 2003, this allegation changed to provide that he “continued to visit” the elephants he knows, even though “each time he does so, he suffers more aesthetic injury.” Complaint, ECF No. 1 at ¶ 23.

These allegations formed the core of Rider's argument as to the injury element of standing. As for the third element, redressability, Rider sought (i) an injunction halting Ringling Bros.' mistreatment of the elephants, and (ii) an order directing FEI to forfeit possession of the elephants.⁴ASPCA II, 677 F.Supp.2d at 65–66. If this relief were granted, plaintiffs alleged, the elephants would no longer exhibit the physical effects of mistreatment and thus Rider would be able to attend the circus and see the elephants without injury. Id. at 67.

Unfortunately, none of these allegations was supported by competent evidence. Id. Rider was “pulverized” on the witness stand, and failed to show he had any attachment to the elephants or suffered any injury by FEI's use of the bullhooks and chains. FOF 1 What the evidence did demonstrate was that Tom Rider was a paid plaintiff with a “motive to falsify” his alleged attachment to the elephants: he was supplied with his only source of income—nearly $200,000 between 2000 and 2008—by the plaintiff organizations, funneled to him through plaintiffs' counsel Katherine Meyer and Eric Glitzenstein. Rider, the organizational plaintiffs, and plaintiffs' counsel sought to conceal the nature, extent and purpose of the payments from FEI during the litigation, including through an affirmatively false interrogatory response signed by Rider and prepared by Ms. Meyer, the same attorney who was paying him....