By John Tyrrell and Kimberly Collins, of Ricci Tyrrell Johnson & Grey
For centuries, the strategic offensive principle of “the best defense is a good offense” has guided tactical decision-making in competitions. Whether the battle is on the field, the ice, or the courtroom, the familiar adage reminds adversaries that a proactive strike may be the surest path to victory. Fundamental to formulating a successful defensive or offensive strategy is knowing the rules of the game. This is particularly true in defense litigation, where lodging objections to a lawsuit at the outset, can successfully end the litigation in a defendant’s favor at the earliest stage. The recent decision in Inko-Tariah v. Capital One Arena, No. 22-cv-02802 (APM), 2023 U.S. Dist. LEXIS 81439 (D.C. May 10, 2023) illustrates how challenging the very ability of the party to bring the lawsuit can lead to an early dismissal of the action entirely.
The plaintiff in Inko-Tariah, attended a hockey game at Capital One Arena and later filed a lawsuit against the arena, Washington Capitals Hockey Club, and Monumental Sports and Entertainment (collectively, “Hockey Defendants”). Plaintiff represented himself and alleged unlawful discrimination under Section 504 of the Rehabilitation Act and Section III of the Americans Disabilities Act (“ADA”). The factual basis involved the length of time Hockey Defendants took to add closed captioning to the “Jumbotron TV” to accommodate Plaintiff’s vision impairment. In addition to monetary damages, Plaintiff requested an injunction nationwide requiring certain training and technology be implemented moving forward in stadiums and other venues.
Standing: The Oldest Play in the Defense Book
Hockey Defendants challenged Plaintiff’s standing to bring suit. The United States Constitution limits the jurisdiction of federal courts to actual “cases and controversies.” See Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 415 (3d. Cir. 2013). One aspect of the case or controversy requirement is that a party bringing suit must have standing, without which the court does not have subject matter jurisdiction. See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). Standing contains three elements: 1) the plaintiff has suffered an actual, concrete, injury in fact or one is imminent; 2) the injury is caused or fairly traceable to the defendants’ conduct; and 3) a decision by the court will likely provide redress. See id. When a plaintiff seeks to regulate future conduct, by seeking injunctive or declaratory relief, an injury in the past is not sufficient to satisfy the first element; there must be “a real or immediate threat” that plaintiff will suffer future harm. Jefferson v. Stinson Morrison Heckler, LLP, 249 F. Supp. 3d 76, 81 (D.D.C. 2017). As the Supreme Court put it: “No concrete harm, no standing.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2021).
Therefore, when a defendant challenges standing, it is a separate and distinct argument and analysis from the merits of the lawsuit. Salas v. Acuity-CH, LLC, 2023 U.S. Dist. LEXIS 54285, No. 22-317-RGA (D. Del. Mar. 30, 2023). The questions then are not, would this person “win the game” on the strength of the claims, but whether or not he is eligible to play and whether or not he is in the right league. The Inko-Tariah Defendants argued that Plaintiff lacked standing to seek injunctive relief because he expressed no future plans to return to Capital One Arena, which Plaintiff did not dispute. The District Court agreed with Hockey Defendants noting that a mere hypothetical or conjectural threat of a future harm is insufficient to establish such threat is real and immediate. See Inko-Tariah, U.S. Dist. LEXIS 81439, *4. As such, Plaintiff failed to establish an essential element of standing and could not pursue his claim for injunctive relief.
Hockey Defendants separately challenged the legal sufficiency of Plaintiff’s claims under the ADA and Section 504, on the theory monetary damages were not recoverable in such actions by a private plaintiff. The Court agreed and dismissed the case in its entirety.
In the words of Wayne Gretzky: “I skate to where the puck is going, not where it has been.” In this case, the Hockey Defendants were able to successfully establish that Plaintiff’s focus on “where the puck” has been when he suffered the alleged harm, did not create a basis for relief against hypothetical, non-concrete harm in the future. The result in this case was achieved by careful analysis of the claims, facts, and law, and proves, at least in this scenario, the best defense was to affirmatively go on the offense.
