Feld Entm't, Inc. v. Am. Soc. for the Prevention of Cruelty to Animals

Decision Date09 July 2012
Docket NumberCiv. Action No. 07–1532 (EGS).
Citation873 F.Supp.2d 288
PartiesFELD ENTERTAINMENT, INC., Plaintiff, v. AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, et al., Defendants.
CourtU.S. District Court — District of Columbia

OPINION TEXT STARTS HERE

Michelle C. Pardo, John M. Simpson, Joseph T. Small, Jr., Kara L. Petteway, Stephen M. McNabb, Fulbright & Jaworski, LLP, Washington, DC, for Plaintiff.

Daniel Seth Ruzumna, Harry S. Clarke, III, Peter W. Tomlinson, Patterson Belknap Webb & Tyler, LLP, New York, NY, Stephen L. Braga, Ropes Gray LLP, Laura Nachowitz Steel, Kathleen Hall Warin, Wilson Elser Moskowitz Edelman & Dicker, LLP, Logan Daniel Smith, Roger E. Zuckerman, Zuckerman Spaeder, LLP, David H. Dickieson, Schertler & Onorato LLP, Stephen L. Braga, Ropes Gray LLP, Barbara Ann Van Gelder, Dickstein Shapiro LLP, William B. Nes, Morgan, Lewis & Bockus LLP, Andrew B. Weissman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, Bernard J. DiMuro, Stephen Lybrook Neal, Jr., DiMuroGinsberg, PC, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

This case arises out of a prior, long running litigation in this Court over whether Feld Entertainment Inc. (FEI) violated the Endangered Species Act by its use of Asian elephants in FEI's Ringling Brothers and Barnum & Bailey Circus (“Circus”). That litigation (hereinafter the “ESA Action”) was brought by several non-profit organizations and one individual plaintiff, Thomas Rider (“Rider”), who had worked with several of FEI's elephants in the Circus. After nine years of litigation and a six week non-jury trial, the Court concluded that Rider failed to prove that he had Article III standing. ASPCA v. Feld Entm't, Inc., 677 F.Supp.2d 55 (D.D.C.2009). The Court found that Rider was “not credible” with respect to his asserted emotional and aesthetic injuries that formed the basis for his claim to standing. Id. at 83. The Court further found that Rider was “essentially a paid plaintiff and fact witness” whose sole source of income throughout the litigation was provided by the animal advocacy organizations which had been his co-plaintiffs in the ESA Action. Id. at 67, 72.1

FEI has now sued the plaintiffs in the ESA Action as well as their counsel of record, arguing that the ESA plaintiffs' payments to Rider during that litigation violated the Racketeer Influence and Corrupt Organizations Act (RICO) and the Virginia Conspiracy Act. FEI has also asserted claims of common law abuse of process, malicious prosecution, maintenance, and champerty. Defendants move to dismiss FEI's Amended Complaint in its entirety. Upon consideration of the motions to dismiss, the oppositions and replies thereto, the arguments of counsel during the hearing held on June 23, 2011, the supplemental submissions of the parties, the applicable law and the record as a whole, the motions to dismiss are hereby GRANTED IN PART AND DENIED IN PART.

I. FACTUAL AND PROCEDURAL BACKGROUNDA. The ESA Case and the Alleged Racketeering Activity2

The original complaint in the ESA Action was filed in July, 2000 on behalf of, among others, the American Society for the Prevention of Cruelty to Animals (ASPCA), Animal Welfare Institute (“AWI”), Fund For Animals (“FFA”), and Rider. ASPCA et al. v. Ringling Bros., et al., Case No. 00–1641. That complaint, and the others that were filed in the original case as well as its successor case, ASPCA et al. v. Feld Entertainment Inc., Case No. 03–2006, alleged that Asian elephants are an endangered species and that the circus mistreats its elephants in violation of the ESA, 16 U.S.C. § 1531, et seq. The cases were filed under the citizen-suit provision of the ESA, which permits private individuals or organizations to sue to enjoin violations of the statute.

Tom Rider was a former elephant “barn helper” and “barn man” for FEI from June 1997 until November 1999. First Amended Complaint (“FAC”) ¶¶ 4, 37. He alleged that he had suffered aesthetic and emotional injury based on his exposure to mistreated elephants while working for FEI. Specifically, Rider alleged that he “has a personal and emotional attachment to these elephants,” Complaint, ASPCA v. Feld Entm't, Case 03–2006, ECF No. 1 at ¶ 20, that he “stopped working in the circus community because he could no longer tolerate the way the elephants were treated by defendants,” id. ¶ 21, and that he “continues to visit” the elephants he knows, even though “each time he does so, he suffers more aesthetic injury,” id. ¶ 23.

This Court dismissed the original case on the ground that Rider as well as the organizational plaintiffs lacked standing to sue. ASPCA v. Ringling Bros. & Barnum & Bailey Circus, No. 00–1641, 2001 U.S. Dist. Lexis 12203 (D.D.C. June 29, 2001). In February 2003, the D.C. Circuit reversed, ruling that, assuming the truth of the allegations in the complaint, Rider had standing. ASPCA v. Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334 (D.C.Cir.2003).3 The ESA Action continued for another six years, culminating in a six week bench trial in February and March 2009. Following the trial, on December 30, 2009, this Court dismissed the case on the grounds that neither Rider nor the other then-remaining plaintiff in the case, the non-profit organization Animal Protection Institute (“API”), satisfied the constitutional standing requirements.

The bulk of the Court's December 2009 decision is devoted to Rider. The Court found that Rider “failed to prove either a strong and personal attachment to the seven elephants at issue or that FEI's treatment of those elephants caused and continues to cause [him] to suffer aesthetic or emotional injury.” ASPCA v. Feld Entm't, 677 F.Supp.2d at 67. The Court further found Rider was “essentially a paid plaintiff and fact witness who is not credible, and therefore affords no weight to his testimony regarding the matters discussed herein, i.e., the allegations related to his standing to sue.” Id.

The Court found serious problems with the substance of Rider's allegations. It noted that Rider had never complained to management, veterinarian, or government officials about the treatment of the elephants during the two and a half years he worked at Ringling Brothers Id. at 68. The Court also found incredible Rider's claim that he left Ringling Brothers because he could not bear to witness further mistreatment of the elephants, noting that after he left FEI's employment he went to work for another circus which allegedly mistreated its elephants in the same way. Id. at 70. The Court also found that since his employment with FEI ceased, Rider continued to see the elephants who were allegedly still suffering mistreatment, thus undermining his claim that he would like to again visit or observe” these elephants but “was refraining from doing so in order to avoid subjecting himself to further aesthetic injury.” Id. at 83. At the same time, Rider made little to no effort to see the elephants who were no longer performing in the circus and therefore no longer allegedly mistreated, thus undermining his claim that he “had formed a personal attachment” to the elephants and, if they were no longer allegedly mistreated, he would visit these animals as often as possible and would seek a position to work with them again.” Id. Indeed, the Court found that when presented with videotapes of the elephants practicing for the circus, Rider could not identify the elephants to whom he was allegedly personally and emotionally attached. Id. at 84.

As to the payments themselves, the Court found that Rider had received at least $190,000 from the ESA plaintiffs since the lawsuit began. Id. at 78. The Court further found that the ESA plaintiffs had been “less than forthcoming about the extent of the payments to Mr. Rider.” Id. at 82. Finally, the Court found that the primary purpose of the payments to Rider was to keep him involved in the litigation, and not, as the ESA plaintiffs asserted, to support his “media and educational outreach program about the treatment of FEI's elephants.” Id. at 79. The Court found that Rider did engage in such activity, and the plaintiff organizations “willingly supported those efforts.” Id. The Court concluded, however, that “while the organizational plaintiffs may see Mr. Rider's media and outreach activities as a benefit, this is not the primary purpose for the payments to Mr. Rider.” Id. Rather, the Court found that:

[T]he primary purpose of the funding provided by the organizational plaintiffs ... was to secure Mr. Rider's initial and continuing participation as a plaintiff in this litigation. This is not a case in which the financial support began years—or even months—after Mr. Rider's advocacy efforts, which might suggest that the organizations were simply providing financial support so that Mr. Rider could continue advocating for an issue or cause to which he had long since demonstrated a commitment. To the contrary, the financial support in this case began before the advocacy efforts and suggests that absent the financial incentive, Mr. Rider may not have begun or continued his advocacy efforts or his participation as a plaintiff in this case. In May 2001, at the time that the organizational plaintiffs commenced providing financial support to Mr. Rider ... Mr. Rider was the only plaintiff in the case alleging that he had a personal and emotional attachment to FEI's elephants and the only plaintiff alleging that FEI's treatment of its elephants caused him aesthetic and emotional injury.... [I]t was ... crucial to the organizational plaintiffs that Mr. Rider remain a plaintiff. The Court finds that ensuring Mr. Rider's continued participation as a plaintiff was a motivating factor behind the payments to him, and that these payments were a motivating factor for his continued involvement in the case.

Id. at 81.

B. This Action.

FEI's Amended Complaint here is based on the initiation and prosecution of the ESA Action. FEI alleges that...

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