Below is an excerpt of a brief I filed in the Sixth Circuit in 2015 explaining the relationship between Article III Standing and the defense under Civil Rule 17 that a party is not the real party in interest. In particular, it deals with the allegation that the injured plaintiff had sold its right to sue. For further information, you can access the reply brief and supplemental brief I filed in this case, and the audio of my oral argument.

Our client (a paving company) received a $15.6 million jury verdict in its favor, but the trial judge concluded that our client lacked Article III Standing, which eliminated the verdict entirely. In a unanimous opinion, the Sixth Circuit reversed, reinstating the verdict and awarding interest. The case ultimately settled for $24 million. The excerpts regarding the interplay of Article III Standing and Rule 17 are below. The case is Cranpark, Inc. v. Rogers Group, Inc., Nos. 14-3753/14-3832. Trial counsel who obtained the $15.6 million verdict were Michael Pasternak and Jonathan Yarger.

I. Cranpark Has Standing.

A. Cranpark easily established Article III standing as the injured party.

This is a straightforward case in which a plaintiff suffered a redressable injury at the hands of the defendant—Article III standing is effectively a non-issue here. RGI has created a massive sideshow. This Court assesses Article III standing de novo. Amburgey v. United States, 733 F.3d 633, 636 (6th Cir. 2013).

1. As Lujan explains, Article III standing is easy to establish where the plaintiff is the object of the defendant’s actions.

Article III of the Constitution limits the authority of the federal courts: they decide “Cases” and “Controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). For a dispute to be within the power (the subject-matter jurisdiction) of a federal court, the plaintiff must have standing—that is, the plaintiff must have alleged a sufficient interest in the dispute. This “irreducible constitutional minimum” of standing has three elements: (1) the plaintiff has suffered a concrete injury; (2) that injury is fairly traceable to actions of the defendant; and (3) it must be likely—not merely speculative—that the injury will be redressed by a favorable decision. Id. at 560–61.

The plaintiff bears the burden to establish standing with the appropriate degree of evidence at each successive stage of litigation. Id. at 561. At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice. Id. If the matter reaches the summary-judgment stage, the plaintiff cannot rest on mere allegations but must set forth specific facts (assumed to be true at that stage) establishing injury. Id. And, finally, those facts of injury—if they are controverted—must be supported adequately by evidence adduced at trial. Id.

In the typical case (such as this one), where the plaintiff was the object of the defendant’s alleged actionable conduct, standing is easy to establish—it is essentially a non-issue. In a diversity case, for example, a plaintiff might bring a standard common-law claim alleging that the defendant committed a tort directly against the plaintiff or breached a contract entered into with the plaintiff. And in a federal-question case, a plaintiff might allege that a defendant’s action directly harmed the plaintiff in violation of a federal right. In these straightforward contexts, there is no question that the plaintiff has alleged a concrete injury at the hands of the defendant, so there is no question that the plaintiff has standing (and that the court has the power to hear the matter). See Lujan, 504 U.S. at 561–62 (noting that if the “plaintiff is himself an object of the action (or forgone action) at issue” then “there is ordinarily little question that the action or inaction has caused him injury . . . .”).

When standing is legitimately disputed, that dispute arises when it is not clear whether the plaintiff has ever personally suffered concrete injury from the defendant’s actions. This occurs when a plaintiff alleges that the defendant’s actions toward someone else have caused the plaintiff injury. This makes the plaintiff’s injury more speculative, and the courts have to decide whether that indirect injury rises to the level such that the plaintiff has standing. Id. at 562 (explaining that when a plaintiff’s asserted injury arises from the defendant’s allegedly unlawful action toward “someone else, much more is needed”) (emphasis in Lujan). Naturally, cases discussing standing at length—including those RGI relies upon—involve these scenarios where the plaintiff is not the object of the defendant’s misconduct. See, e.g., id. at 563 (plaintiff environmental organizations lacked standing to challenge interpretation of Endangered Species Act because they failed to show that their members would be directly affected by increased risk to endangered animals); United States v. Hays, 515 U.S. 737, 745 (1995) (plaintiffs voters lacked standing because they did not live in the district at issue—they “have pointed to no evidence tending to show that they have suffered that injury, and our review of the record has revealed none”).

This is why it is so easy for Cranpark to establish Article III standing here—there has never been a dispute that Cranpark has simply brought a typical lawsuit against RGI raising regular, common-law claims (contract and promissory estoppel) for RGI’s actions toward Cranpark. Indeed, RGI has never argued otherwise (nor could it). Instead, RGI has created the false notion that Article III standing—even if indisputably established, as here—can be “taken away” or “lost” through a transfer of the right to bring the lawsuit. Next, we show that is simply wrong.

2. Article III standing is not lost by the transfer of the right to bring the lawsuit.

Article III standing is the absolute minimum showing the plaintiff must make to invoke the authority of the federal courts—such a showing does not mean that a plaintiff will prevail on the merits, and it does not even mean that the plaintiff (though injured by the defendant) is entitled to have the merits of the case resolved. Various defenses can serve to bar the plaintiff’s claim, including the defense that—despite having suffered constitutional injury—the plaintiff is not the appropriate party to bring the lawsuit. That does not mean Article III standing is “lost”—it simply means the plaintiff may be barred from proceeding with the suit under the courts’ claim-processing rules.

Though a plaintiff might satisfy the constitutional floor of Article III injury at the hands of the defendant, the plaintiff might not satisfy these additional claim-processing rules—including the restriction of Federal Rule 17(a), which states that “[a]n action must be prosecuted in the name of the real party in interest.” Fed. R. Civ. P. 17(a)(1). For example, a minor child might suffer constitutional injury and have Article III standing, but that child’s guardian or representative possesses the substantive legal right to proceed with a suit seeking to remedy that injury. The Rule provides other examples of types of parties who may sue in their own names on behalf of others, such as executors, trustees, and parties authorized by statute. Fed. R. Civ. P. 17(a)(1).

And, as the Advisory Committee Notes explain, the Rule “was designed to allow an assignee to sue in his own name.” Id. Adv. Comm. Note on 1966 Am. (emphasis added). In other words, where an injured party who has Article III standing assigns the substantive legal right to recover, the assignee can bring the suit. “Under Rule 17(a) if a chose in action is assignable under the governing substantive law, then the assignee of that chose in action is a real party in interest and may sue for relief in the federal courts.” Int’l Rediscount Corp. v. Hartford Acc. & Indem. Co., 425 F. Supp. 669, 675 (D. Del. 1977) (citing Moore’s Federal Practice); Pay Tel Sys. v. Seiscor Techs., Inc., 850 F. Supp. 276, 278 (S.D.N.Y. 1994) (when a complete assignment occurs, assignee is real party in interest). Such an assignee will also have Article III standing. See Sprint Commc’n Co. v. APCC Servs., 554 U.S. 269, 285 (2008).

The purpose of the “real party in interest” provision is to protect defendants from a subsequent suit by a party that actually possesses the substantive right to recover. White v. JPMorgan Chase Bank, NA, 521 F. App’x 425, 428 (6th Cir. 2013); 4-17 Moore’s Federal Practice § 17.10 & n.16 (2014) (citing cases). A defendant can insist that the “real party in interest” be joined or substituted in as a plaintiff. A defendant will typically raise this defense early in the litigation. Gogolin & Stelter v. Karn’s Auto Imports, Inc., 886 F.2d 100, 102 (5th Cir. 1989) (real party disputes should be resolved quickly and early). If the defendant waits until the litigation has proceeded (especially all the way until trial), it will have waived any such defense that it is being sued by the wrong party. Zurich Ins. Co. v. Logitrans, Inc., 297 F.3d 528, 531 (6th Cir. 2002).

Thus, a plaintiff’s Article III standing exists once it is shown that the plaintiff suffered a sufficient, redressable injury at the hands of the defendant; any question of who owns the claim is simply a question about who is the real party in interest. This is effectively a two-step process: First, the court must assess whether the plaintiff shows a redressable Article III injury at the hands of the defendant. If not, the plaintiff lacks standing. If so, the court proceeds to the second step, assessing whether the plaintiff is entitled to bring the claim (e.g., whether the plaintiff still owns the claim, has transferred it, etc.). See Allstate Ins. Co. v. Global Med. Billing, Inc., 520 F. App’x 409, 412 n.2 (6th Cir. 2013) (“[A]n analysis under Rule 17 can only be conducted after a party has established its standing to sue.”); see also Lincoln Prop. Co. v. Roche, 546 U.S. 81, 90 (2005) (stating that Rule 17(a) does not address subject-matter jurisdiction and that the federal rules do not extend or limit jurisdiction). Two cases from this Court addressing the interplay of Article III and Rule 17 show how this process works.

First, Zurich Insurance illustrates that where a plaintiff was never the entity with a claim to an injury, it lacks constitutional standing. 297 F.3d 528. There, an insurance company with no connection to the underlying damage mistakenly brought a lawsuit seeking to recover. (This mistake occurred because the company had a common owner with the proper insurance company). This Court held that the minimum showing of Article III standing was lacking because the plaintiff was never injured. Id. at 531. Thus, the district court lacked Article III jurisdiction and there was no authority to reach the second step and consider whether the real party in interest should be substituted under Rule 17.

By contrast, in White v. JPMorgan Chase, the plaintiff did assert a sufficient injury to establish Article III jurisdiction, but was barred from proceeding with the suit because the plaintiff had transferred ownership of the right to recover. 521 F. App’x 425. There, the plaintiff was listed as a payee on a check, but he later transferred ownership of the check to his corporation. There was a stop-payment order on the check, and the plaintiff filed suit against the bank to issue payment to him personally. Relying on Zurich Insurance, this Court held that the plaintiff indeed did have Article III injury and standing (because he was originally listed as payee and was not paid), but he was no longer the real party in interest under Rule 17 because he had transferred possession of the check, and the right to recover, to the corporation. Id. at 531–32. Thus, though Article III jurisdiction existed, the plaintiff was barred from pursuing the suit, entitling the bank to summary judgment.

Note that when a plaintiff has Article III standing and simply transfers the right to recover (such as in White and in all of the Rule 17 cases where an injured plaintiff assigns the right to sue), all three elements of Article III standing—concrete injury, causation, and redressability—are satisfied.

One might ask in particular how the third element—redressability—remains intact in such cases of assignment and transfer, but this is easily explained. Redressability is simply a question of whether a favorable court decision is likely to redress or compensate for the injury—regardless of who owns the right to recover. If so, the injury is redressable. By contrast, redressability is lacking (and thus, Article III standing is lacking) when a court’s remedy—no matter who owns the right to receive it—is too speculative and depends upon further actions of third parties not before the court. See 15-101 Moore’s Federal Practice § 101.41[b] (2014) (listing 16 examples of cases where redressability was not established, all of which sought relief that would have only a speculative effect on the injury alleged). Indeed, if redressability disappeared every time an injured plaintiff merely transferred or assigned the right to recover, then all of the cases uniformly explaining that such transfers and assignments do not implicate Article III standing—including this Court’s decision inWhite—would be wrong. See White, 521 F. App’x at 428 (no redressability concern even though plaintiff’s right to recover was transferred from injured plaintiff).[1]

There is potential for confusion because courts and litigants sometimes refer to a party’s “standing” to sue when they really just mean the party’s ability to proceed with the claim or status as the real party—not Article III power of the court. See Hoskinson v. High Gear Repair, Inc., No. 11-1190, 2013 U.S. Dist. LEXIS 110852, at *14–15 (D. Kan. Aug. 7, 2013) (noting that the practice of using the term “standing” loosely to describe the right to bring a particular cause of action “leads to much confusion when it is necessary to distinguish between ‘standing’ in its most technical sense and the concept of real party in interest under Fed. R. Civ. P. 17(a)”); Ensley v. Cody Res., Inc., 171 F.3d 315, 320 (5th Cir. 1999) (defendant’s “standing” argument was really real-party defense that defendant waived by failing to raise until late stages); Whelan v. Abell, 953 F.2d 663, 671–72 (D.C. Cir. 1992) (same); see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1337, 1386, 1388 n.4 (2014) (explaining that “prudential standing” and “statutory standing” are labels that are “misleading” because they do not affect Article III standing).

[1] See also Jones v. Bank of Am. Corp., No. 08-152, 2013 U.S. Dist. LEXIS 168410 (M.D. Ga. Nov. 27, 2013) (when a harmed plaintiff transfers title to property, the plaintiff is no longer real party in interest but does not lose Article III standing) (citing Clark v. Deutsche Bank Nat’l Trust Co., No. 12-231, 2013 U.S. Dist. LEXIS 102759 (S.D. Miss. July 23, 2013) and Kinman v. Wells Fargo Bank, N.A., No. 12-2853, 2013 U.S. Dist. LEXIS 18220 (E.D. Cal. Feb. 11, 2013)); Campus Sweater & Sportswear v. M.B. Kahn Constr. Co., 515 F. Supp. 64, 82 (D.S.C. 1979), aff’d 644 F.2d 877 (4th Cir. 1981) (assignment of rights shifted real party status from previous owner of building to purchaser); Rawoof v. Texor Petrol. Co., 521 F.3d 750, 756 (7th Cir. 2008) (“Rule 17(a) is a procedural rule requiring that the complaint be brought in the name of the party to whom that claim ‘belongs’ or the party who, according to the governing substantive law, is entitled to enforce the right.”); Quad/Graphics, Inc. v. One2One Commc’ns, LLC, 529 F. App’x 784, 788 (7th Cir. 2013) (defendant’s argument that plaintiff needed to prove at trial it had a valid assignment to bring the suit did not implicate Article III standing and was waived by earlier admissions to the assignment).

I. Cranpark Has Article III Standing.

RGI knew and knows that this lawsuit was never sold. Cranpark’s 2001 asset sale to McCourt was completely captured and reduced to a written asset-purchase agreement, the APA. (See Cranpark’s First Br. at 9–10.) The terms of the contract were never in doubt or ambiguous. The parties to the APA never litigated or disputed any aspect of that transaction. RGI asked Sabatine questions about this 2001 transaction and the APA at his 2007 deposition. RGI’s counsel even marked the APA as an exhibit and attached it to that deposition. (Id. at 12.) That same deposition and APA were attached to RGI’s 2010 motion for summary judgment. The 2001 APA has zero relevance to Cranpark’s substantive claims here, their procedural viability, and this Court’s Article III jurisdiction. This lawsuit was not sold. This reality is why RGI never raised any real-party-in-interest or Article III concerns related to the 2001 APA in RGI’s motion to dismiss, motion for summary judgment, earlier appeal in this Court, pretrial statement, or during trial.

And this is why RGI now twists the legal landscape to attempt to place the burden on Cranpark to affirmatively negate the fabricated sale of this lawsuit at trial. RGI’s scheme is to claim that this is an issue of Article III standing. The reality is that the falsehood that Cranpark sold the right to sue, if true, would be nothing more than a Rule 17 defense, and it would be RGI’s burden to prove. Of course, RGI knows Cranpark never sold this right and that it therefore cannot even attempt such a defense.

A. Article III standing cannot be lost by a transfer of the right to sue, but RGI misrepresents the case law.

1. RGI affirmatively misrepresents cases as involving the loss of Article III standing when they really implicate a real-party defense.

Recall that RGI relied on four cases to attempt to convince the magistrate judge that an injured plaintiff could indeed lose Article III standing by transferring the right to sue, and that the issue is not a Rule 17 defense. (Cranpark First Br. at 30.) As we showed in the First Brief, three of those four cases simply do not stand for that proposition. (Id. at 30–31.) Indeed, one of them—the Third Circuit’s decision in Sanford Investment—actually says the opposite, explaining that such an assignment means that the plaintiff “does not have standing as the real party in interest under Fed. R. Civ. P. 17.” 198 F.3d 415, 425 (3d Cir. 1999). And two of the cases were state court decisions that similarly did not involve Article III. The fourth case was AtlantiGas.

So what is RGI’s approach to this Court, now that its tactics have been exposed? Understandably, RGI still leads with AtlantiGas, which exemplifies the incorrect approach. And RGI has abandoned altogether the two state-court decisions it relied on. What is troubling, however, is that RGI takes the same misleading approach with Sanford Investment, relying on it again as support for the idea that“[f]ederal courts consistently recognize that the ownership (or lack thereof) of a claim implicates Article III standing.” (RGI Br. at 22, 24.) That is simply false. Sanford Investment directly supports Cranpark: The assignment of a claim by an injured party involves nothing more than prudential questions of “standing” as the real party in interest. See generally, Lexmark Int’l v. Static Control Components, Inc., 134 S. Ct. 1377, 1386–1388 (2014) (explaining that prudential standing is “not derived from Article III” and includes restrictions on raising rights possessed by another person); see also JGR Assocs., LLC v. Brown, 442 B.R. 585, 598 (E.D. Mich. 2011) (explaining in detail, under Sixth Circuit and Supreme Court cases, that Rule 17 real-party objections are objections to prudential standing, they are waived if not timely raised by the defendant, and they do not implicate Article III standing).

It turns out that RGI was just warming up with this misleading (yet transparent) tactic. Over more than two pages of its brief to this Court (pp. 23–25), RGI states that it has found at least six more cases involving the loss of “Article III standing,” but, like Sanford Investment, those cases never even involved Article III. See Two Pepper Music v. Rhino Records, Inc., 173 F.3d 846 (2d Cir. 1999) (no mention of Article III—copyright owner who assigned the right to sue lacked “standing” to bring a claim); Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, Nat’l Ass’n, 731 F.2d 112, 125 (2d Cir. 1984) (no mention of Article III—assignment leaves plaintiff without “standing” to sue under state law); Bauer v. Sweeny, 964 F.2d 305, 306–08 (4th Cir. 1992) (no mention of Article III—shareholders of former corporate owners lack “standing” to pursue claim); Pringle v. Atlas Van Lines, 14 F. Supp. 3d 796, 800 (N.D. Tex. 2014) (no reliance on Article III—relying on state law of assignments to conclude that plaintiff lacks prudential standing, which exists in addition to Article III requirements); Hansen v. Wheaton Van Lines, Inc., 486 F. Supp. 2d 1339, 1346 (S.D. Fla. 2006) (no mention of Article III—plaintiff who assigned away the claim had “no standing to pursue the instant action” under state law); Miller v. Rite Aid Corp., 334 F.3d 335, 343 (3d Cir. 2003) (“At oral argument, the parties conceded that this case presents no issue of traditional Article III standing . . . .”).

In addition to these decisions that RGI affirmatively misrepresents, the remaining decisions RGI relies on simply reflect the confusion regarding Article III standing and real-party prudential “standing.” These are classic “drive-by” jurisdictional rulings where the plaintiff indeed cannot proceed with the claim, but not because there is a true lack of Article III jurisdiction. See C&A Constr. Co. v. DHC Dev., 501 F. App’x 763, 775 (10th Cir. 2012) (referring to Article III but relying on principles of “prudential standing in bankruptcy proceedings” and “detect[ing] similar concerns regarding [plaintiff’s] Article III standing” to conclude that plaintiff lacks standing after assigning claims) (emphasis added); Schreiber Foods, Inc. v. Beatrice Cheese, Inc., 402 F.3d 1198 (Fed. Cir. 2005) (describing patent owner’s transfer and regaining of rights as losing and regaining “standing” and “jurisdiction,” but relying on cases not involving Article III standing—Judge Posner later describes Schreiber as stating “just a rule of prudential standing . . . .” Depuy, Inc. v. Zimmer Holdings, Inc., 384 F. Supp. 2d 1237, 1240 (N.D. Ill. 2005) (emphasis added)); Bob McLemore & Co. v. Maco Homes, Inc. (In re Maco Homes, Inc.), 180 F.3d 163, 166 (4th Cir. 1999) (explicitly conducting a Rule 17 real-party analysis and not mentioning Article III, but then stating that the action should be dismissed for “lack of jurisdiction”); Amusement Indus., Inc. v. Stern, No. 07-11586, 2001 U.S. Dist. LEXIS 150050, at *18 (S.D.N.Y. Dec. 28, 2011 (discussing Article III standards and concluding that a plaintiff who assigned away rights does not have “standing” to bring the claim, but relying on cases not involving Article III); see also Clarex Ltd. v. Natixis Secs. Am. LLC, No. 12-0722, 2012 U.S. Dist. LEXIS 147485, at *15–16 (S.D.N.Y. Oct. 12, 2012) (relying on Amusement Industries, Two Pepper, and Aaron Ferer (all discussed above) to conclude that assignment removes Article III standing).

RGI also mistakenly claims that we have said that an assignee of the claim lacks Article III standing. (RGI Second Br. at 27.) Not so. The assignee who owns the legal right to bring such the claim of an injured plaintiff also has Article III standing. (Cranpark First Br. at 25 (citing Sprint Commc’n Co. v. APCC Services, Inc., 554 U.S 269, 285 (2008).) RGI’s mistake is its purported belief that the original injured entity somehow “loses” Article III standing in this process. That is not true—that injured person is simply vulnerable to the defense that it is not entitled to bring the claim.

Finally, RGI says that the Supreme Court’s decision in Karcher v. May, 484 U.S. 72 (1987), refutes the basic idea that an injured plaintiff cannot “lose” its Article III standing. But that decision merely involves statutory standing of defendants, and that decision also supports Cranpark. There, a state legislature was the interested party when a state statute was challenged. Two state legislators intervened in their official capacities on behalf of the legislature to defend the statute. When they lost their positions as legislators, they no longer had a statutory right to be in the suit because the legislature was the interested entity. The Court described the issue as an assessment of “the real party in interest.” Id. at 78.

2. RGI concedes that White and other assignment cases like this one do not involve the loss of Article III standing—they involve only the real-party defense.

Two cases are particularly helpful here. First, White shows that this Court follows the correct principles. There, this Court explained that when an injured person transfers ownership of the right to sue, that person is subject to the defense that it is no longer the real party in interest and therefore cannot proceed with the claim—but that person is not necessarily lacking Article III standing. White v. JPMorgan Chase Bank, NA, 521 F. App’x 425, 428, 531 (6th Cir. 2013). Second, U.S. Neurosurgical Inc. v. City of Chicago illustrates how these principles apply where the defendant attempts the same sort of arguments about an asset-purchase agreement as RGI attempts here. No. 02-4894, 2006 U.S. Dist. LEXIS 97659, at *22 (N.D. Ill. Mar. 21, 2006), aff’d 572 F.3d 325 (7th Cir. 2009). In U.S. Neurosurgical, the defendant claimed that the asset-purchase agreement transferred the very assets that the injured plaintiff brought suit upon, and the court explained that the defendant wrongfully “attempt[ed] to shift the burden” to the plaintiff on this Rule 17 affirmative defense, and the defendant failed to demonstrate that what was transferred was “included among the assets assigned.” Id.

Cranpark cited a number of cases showing that the only question in this assignment context is whether the defendant has met its burden to show that the plaintiff is not the real party in interest. (See Cranpark’s First Br. at 27–29, 38 (citing White, 521 F. App’x 425; Jones v. Bank of Am. Corp., No. 08-152, 2013 U.S. Dist. LEXIS 168410 (M.D. Ga. Nov. 27, 2013); Clark v. Deutsche Bank Nat’l Trust Co., No. 12-231, 2013 U.S. Dist. LEXIS 102759 (S.D. Miss. July 23, 2013); Kinman v. Wells Fargo Bank, N.A., No. 12-2853, 2013 U.S. Dist. LEXIS 18220 (E.D. Cal. Feb. 11, 2013); Campus Sweater & Sportswear v. M.B. Kahn Constr. Co., 515 F. Supp. 64, 82 (D.S.C. 1979), aff’d 644 F.2d 877 (4th Cir. 1981); U.S. Neurological, 2006 U.S. Dist. LEXIS 97659, at *22).) Naturally, if an injured plaintiff actually lost Article III standing in such cases, these courts would have simply concluded that they lacked Article III jurisdiction.

So what is RGI’s response to all of Cranpark’s cases? RGI says these cases are not relevant here precisely because they do not implicate Article III standing and involve only prudential real-party questions. In other words, RGI’s argument is as follows: This appeal is about Article III, but those assignment cases are not about Article III, so you can ignore them. Of course, the whole point of Cranpark’s appeal is that Cranpark’s Article III standing is not implicated by any purported assignment or transfer. These decisions prove Cranpark’s point, and we wholeheartedly agree with RGI’s view that these decisions show that such a transfer can affect real party in interest only (not Article III). (See RGI Second Br. at 31 (quoting White to emphasize that the question of plaintiff’s transfer of right to recover is “not one of Article III standing”); id. at 29 (Jones relied on cases that “say nothing about Article III standing”); id. at 29–30 (Clark discusses “real party in interest and prudential standing”); id. at 30 (Kinman discusses “real party in interest only”); id. at 31 (Campus Sweater discusses “real party in interest only”); id. at 43 (U.S. Neurological involves “a Rule 17 affirmative defense”).) [1]

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[1] Cranpark agrees that Schwindt v. Hologic, Inc. is largely irrelevant here because the defendants there had assigned claims and then argued that the plaintiff lacked standing. No. 11-00110, 2011 U.S. Dist. LEXIS 96981 (S.D. Ind. Aug. 26, 2011).

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3. All of RGI’s cases showing that courts look at trial evidence to assess Article III standing show that the inquiry is only whether the plaintiff has a sufficient Article III injury—not whether plaintiff has also assigned the claim.

Under the proper understanding of Article III and Rule 17, it is also easy to see why courts conclude that the plaintiff must establish Article III standing at trial, and why courts may limit their inquiry solely to the trial evidence. This is because the plaintiff’s burden is simply to show injury at the hands of the defendant—and the best evidence of that injury will be the trial evidence. Indeed, that evidence is typically just part of the plaintiff’s prima facie case. But the plaintiff has no additional burden to affirmatively negate any purported “loss” of that Article III standing. Thus, in every case RGI relies on to show that a plaintiff failed to establish standing at trial, that plaintiff was the classic Lujan-type plaintiff who failed to establish any requisite injury in the first place. See ASPCA v. Feld Entm’t, Inc., 659 F.3d 13 (D.C. Cir. 2011) (concluding that an animal-rights group and a barn worker who developed a “personal attachment” to particular elephants did not show requisite Article III injury to sue the owner for treatment of elephants under the Endangered Species Act); Loving v. Boren, 133 F.3d 771, 772–73 (10th Cir. 1998) (concluding that university professor did not “adduce evidence that he suffered any injury in fact” in suit against university president for restricting the reach of university’s news server); Kirola v. City & County of San Francisco, No. 07-3685, 2014 U.S. Dist. LEXIS 165841, at *109 (N.D. Cal. Nov. 26, 2014) (concluding that disabled person did not show requisite injury to herself in suit against city regarding access barriers to public areas); Friends of Coral Bay v. Reliance Hous. Found. Inc., No. 2007-20, 2008 U.S. Dist. LEXIS 8182, at *6–7 (D.V.I. Feb. 1, 2008) (concluding that individuals who “enjoy” a bay “visually or for recreational matters” did not show requisite injury to sue over home construction near the bay). As noted above, such a showing of injury in fact is a necessary part of any plaintiff’s case in chief to be shown at trial.

[...cont'd: see full brief]