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DISTRICT OF COLUMBIA COURT OF APPEALS
No s
. 1 6

- C V

- 45 8 , 16

- CV

- 459, & 16

- CV

- 500
R

UBY N ICDAO , L ARRY C IRIGNANO , AND J ONATHAN D ARNEL , A PPELLANT S ,
V
. T WO R IVERS P UBLIC C HARTER S CHOOL , I NC ., A PPELLEE
. Appeal s from the Superior Court of the District of Colum bia (C AB

- 9512

- 1 5 ) (Hon. Jeanette J

. Clark , Trial Judge) (Argued March 1 1 , 20 20 Decided June 9, 2022) Stephen M. Crampton , of the bar of the States of Mississippi, Tennessee, New Mexico, and Texas, pro hac vice , by special leave of court , with whom Patrick G. Senftle was on the brief, for appellant Ruby Nicdao

. Mathew D. Stave r , with whom Horatio G. Mihet , of the bar of the States of Florida and Ohio, pro hac vice , by special leave of court and Roger K. Gannam , of the bar o f the State of Florida, pro hac vice , by special leave of court , were on the brief, for appellant Larry Cirignano. John R. Garza for appellant Jonathan Darnel. Michael L. Murphy , with whom Cary Joshi was on the brief , for appellee. Before G LICKMAN , As sociate Judge , and W ASHINGTON and F ISHER , * Senior Judge s .

* Judge Fisher was an Associate Judge at the time of oral argument. His status changed to Senior Judge on August 23, 2020.2

W ASHINGTON , Senior Judge : Appellant s Ruby Nicdao , Larry Cirignano, and
Jon a than Darnel appeal a judgment denying their special motions to dismiss under the D istrict of C olumbia Anti

- Strategic Laws uits Against Public Participation (“ Anti

- SLAPP ”) Act

. For the reasons that follow, we reverse because appellee Two Rivers Public Charter School lacked third

- party standing to assert a claim for intentional infliction of emotional distress (“IIED”), and it s other claims cannot succeed on their own.

I. Facts and Proceedings

On August 27, 2015, three individuals arrived and occupied the sidewalk in front of Two Rivers Public Charter School (“Two Rivers”). The individuals were protesting the Planned Parenth ood facility being built next to the school and each held graphic signs of aborted fetuses and shouted at students and parents entering the school. On November 1, 2015, Appellant Jonathan Darnel sent an email to several school administrators in which he a sked them what they would do to prevent the Planned Parenthood facility from opening and impl ied that the school would face more protests if it did not act. On the morning of November 16, 2015 , four individuals, including appellant Darnel, protested on th e sidewalk in front of3

the school, where they held graphic signs. The individuals allegedly followed students onto school property to hand them brochures that said things like “[t]ell your parents they’re going to kill kids next door!” and “[t]he school w ill have a lot of problems if you ignore the problem!” According to Two Rivers, “[m]any parents and students felt they were being chased and threate ne d by [appellant] Darnel . . . .” On November 23, 2015 , more protesters returned to the school with graphi c signs and shouted at students and parents; the group included appellants Darnel, Ruby Nicdao, and Larry Cirignano. Two Rivers claimed that as school officials redirected students to a side entrance of the school, appellant Nicdao “followed the students into the alley and continued shouting at them, making parents and students feel threatened and unsafe.” Finally, appellant Darnel and other individuals returned to the school on December 7, 2015, and handed out leaflets to students and parents protesting the Planned Parenthood facility being built; appellant Darnel apparently followed one parent and student towards the metro saying the parent was “in denial” and also jogged after a group of students who had ignored him and forced the leaflets into their ha nds. In addition to the ways appellants’ conduct allegedly impacted the students and their families, Two Rivers claimed that the protests prevented administrators and teachers from being able to plan for the school day, forced them to make “extraordinary efforts” to protect students,4

inhibited the “core educational goals of the school,” and threatened the charter school’s funding, which depends on enrollment.

Two Rivers filed its complaint on December 9, 2015, asserting claims for IIED, private nui sance, and conspiracy to create a private nuisance

. Appellants filed motions to dismiss under Super. Ct. Civ. R. 1 2(b)(1) , lack of subject

- matter jurisdiction, and 12(b) (6) , failure to state a claim

. A ppellants also filed a special motion to dismiss unde r the D.C. Anti

- SLAPP Act , D.C. Code § 16

- 5501 et seq

. ( 2021 Supp. ) . The trial court held a hearing on the motions on April 29, 2016 . A t the hearing, the trial court held that Two Rivers had standing to bring its claims 1 and denied appellants’ 12(b) moti ons to dismiss. Regarding the special motion to dismiss under the Anti

- SLAPP Act, the trial court found that while appellants made a prima facie showing that Two Rivers’ claims stemmed from their protests on a n issue of public interest , abortion, Two Rive rs was likely to succeed on the merits of its claims. Thus, it denied appellants’ special motions to dismiss under the Anti

SLAPP Act. Appellants timely appealed. Only the trial court’s ruling on the Anti

SLAPP special motions to dismiss is properly bef ore us on this appeal.

1 The trial court stated, however, that the Tru stees of Two Rivers did not have standing and dismissed them from the case. That decision was not appealed.5

I I . Third
- Party Standing to Bring IIED Claim

Appellants argue that the trial court erred in granting Two Rivers standing to proceed in the case . In its ruling from the bench on the IIED claim , the trial court held that Two Rive rs was bringing the claim on behalf of its students and parents, and that the school had third

- party standing because they “could not financially afford to litigate the case” and because “they were fearful

. ” 2 We review the trial
court’s standing decision de novo

. UMC Dev. , LLC v. District of Columbia , 120 A.3d 37 , 42 (D.C. 201 5 )

. “ Although Congress did not establish this court under Article III of the Constitution, we generally adhere to the case and controversy requirement of Article III as well as prud ential principles of standing.” Riverside Hosp. v. District of Columbia Dep’t of Health , 944 A.2d 1098 , 1103

- 04 (D.C.
200 8 ) . Standing requires “an actual or imminently threatened injury that is attributable to the defendant and capable of redress by the court.” Friends of Tilden Park , Inc. v. District of Columbia , 806 A.2d 1201, 1206

- 07 (D.C. 2002)

. “ Standing is a threshold jurisdictional question which must be addressed prior to and

2 Though the trial court did not specify exactly what the parents were fearful of in making its ruling , counsel for Two Rivers argued at the hea ring on the motion to dismiss that the parents were afraid to bring a lawsuit on behalf of their children due to concerns about personal privacy.6

independent of the merits of a party ’ s claims.” Grayson v. AT&T Corp. , 1 5 A.3d
21 9, 229 (D.C. 2011 ) (en banc) (internal quotation marks omitted). 3

In addition to constitutional standing requirements, “courts have developed ‘prudential principles’ that function as self

- imposed restrictions on jurisdiction.” Riverside Hos p. , 944 A.2d at 1104. Third

- party standing is one such prudential principle and an “ alternative threshold question” we must also address. Kowalski v.
Tesmer , 543 U.S. 125, 129 (2004). “ A s a prudential matter, the Supreme Court generally has required a l itigant to ‘assert his own legal rights and interests; he cannot rest his claim to relief on the legal rights or interests of third parties.’” Riverside Hosp. , 944 A.2d at 1104 ( quoting Warth v. Seldin , 422 U.S. 490, 499 (1975)). “ Enforcement of the proh ibition [ against third

- party standing ] reduces the likelihood that courts will ‘adjudicate [a third party’s] rights unnecessarily, [when] it may be that in fact the holders of those rights either do not wish to assert them, or will be able to enjoy them re gardless of whether the in

- court litigant is successful or
not.’” Id. at 1105 (alterations in original) ( quoting Singleton v. Wulff , 428 U.S. 106,

3 Two Rivers’ suggestion that we merely affirm the lower court’s standing decision and “hue to the issues r aised in [appellants’] Special Motions” is therefore unavailing, since “ the basic function of the standing inquiry is to serve as a threshold a plaintiff must surmount before a court will decide the merits question about the existence of a claimed legal ri ght. ” Grayson , 15 A.3d at 229 (emphasis in original)

.7

113

- 14 (1976)). To be successful, a claim brought on behalf of a third party requires (1) an injury in fact to the litigant bringing the claim , (2) a close relationship between the litigant and the third party, and (3) some hindrance to the third party ’ s ability to protect his or her own interests. See id. ; Powers v. Ohio , 499 U.S. 400, 410

- 11 (1991). “The pl aintiff bears the burden to establish standing.”
UMC Dev. , 120 A.3d at 43.

After considering these principles, we hold that the trial court erred in ruling that Two Rivers had standing to proceed with the IIED claim

. We assume, without deciding, that Two Rivers has met the Article III standing requirements, 4 as well as step (1) of third

- party standing, which is an injury in fact to the litigant

. Schools suffer injury from “ arbitrary, unreasonable, and unlawful interference with their patrons. ” Pierc e v. Soc iety of Sisters , 268 U.S. 510, 536 (1925)

. 5 Under this broad

4 See Kowalski , 543 U.S. at 129 (“ [W] e do not focus on the constituti onal minimum of standing . . . [i]nstead, we shall assume the [ r espondents] have satisfied Article III and address the alternative threshold question whether they have standing to raise the rights of others

. ”).

5 To the extent that Two Rivers is arguing that it meets the standards for third

- party standing based on Pierce , that case was decided before the modern third

party standing doctrine was developed; thus , while it does not directly address the three criteria litigants must satisfy to establish third

- party standing , see, e.g. , Powers , 499 U.S. at 410

- 11, we do not understand Pierce to confer standing to schools assert ing claims on behalf of their students and families without regard to (continued...)8

standard, Two Rivers can plausibly claim it is inju red by potentially unlawful interference with their students ’ right not to be harassed by abortion protesters

. A s a school, Two Rivers also has a close relationship with its students and their parents, and thus meets the second requirement for third

- party standing. See District of Columbia v. Doe , 524 A.2d 30, 32 (D.C. 1987) (discussing a school’s

“ obligation to exercise reasonable and ordinary care for the protection of pupils to whom it provides an education ”)

.

Two Rivers ’ challenge falters, however, because it has not “demonstrate[d] ‘some hindrance to the third party ’ s ability to protect his or her own interests.’” Riverside Hosp. , 944 A.2d at 1105 ( quoting Powers , 499 U.S. at 411). Two Rivers claims, and the trial court held, that the students and parents face a financial hindrance to bringing suit themselves. Arguments focused on financial limitations (...continued) the distinct third

- party standing requirements that the Sup reme Court has since articulated , and we must apply these requirements to the facts of this case. Two Rivers seems to recognize this addi tional burden , as it cites the same three criteria and discusses Pierce and its progeny within this framework. Moreover , Pierce is not directly on point here because Two Rivers is not asserting the “constitutional right of parents to direct their children ’s education” that the C ourt recognized in Pierce

. Ohio Ass’n of Indep. Sch. v. Goff , 92 F.3d 419 , 422 (6th Cir. 1996) (citing Runyon v. McCrary , 427 U.S. 160, 175 n. 13 (1976) and Pierce , 268 U.S. at 535

- 36) ; see also Warth , 422 U.S. at 500 (noting that s tanding “often turns on the nature and source of the claim asserted,” particularly in regards to prudential rules of standing)

.9

as the primary hindrance fo r third

- party standing face a high bar at the Supreme Court, where the Court has rejected criminal defense lawyers’ third

- party suits on behalf of indigent defendants because “ the lack of an attorney here is [not] the type of hindrance necessary to allow a nother to assert the indigent defendants ’ rights. ” Kowalski , 543 U.S. at 132. On this record, we do not see any reason financial considerations are a sufficient hindrance for Two Rivers to assert third

- party standing. We also do not see any privacy conc erns proving enough of a hindrance to warrant third

- party standing. While parents of the students may have been “fearful” about the publicity associated with their children suing appellants, minors’ names are automatically redacted at the trial court. Se e Sup er . Ct. Civ. R . 5 .2(a)

. T he students may have a valid IIED claim a gainst the abortion protesters. But on this record, they should be the ones to bring the case, not Two Rivers. Thus, we hold that the trial court erred in holding that Two Rivers had third

- party standing to bring a claim for IIED on behalf of its students and their parents

.

III. Private Nuisance and Conspiracy Claim s

In contrast to the IIED claim, Two Rivers asserted its own rights in bringing claims of private nuisance and conspir acy to create a private nuisance , contending appellants’ actions interfered with its use and enjoyment of the school buildings ,10

and the trial court recognized its “business and property” interests that were threatened by appellants’ alleged conduct

. A fter the trial court ruled that appellants made a prima facie showing that Two Rivers ’ claims arise from appellants’ protected activity under the Anti

- SLAPP Act, 6 the burden shifted to Two Rivers to “demonstrate[] that the claim is likely to succeed on the mer its” in order to defeat the special motion to dismiss. D.C. Code § 16

- 5502(b). To evaluate the likely success of Two Rivers’ claims, we consider whether a factfinder, under the “applicable legal and constitutional standards [,] could reasonably find that the claim is supported in light of the evidence that has been produced or proffered in connection with the motion.” Competitive Enter. Inst. v. Mann , 150 A.3d 1213,
1232 (D.C. 2016) , as amended (Dec. 13, 2018). We review this determination de

novo. Id. at 1240.

Because the IIED claim must fail for lack of third

- party standing, Two Rivers cannot show that its other two claims are likely to succeed. “As an independent tort, claims of nuisance have

. . . not been viewed favorably by this court” and we have often said that “nuisance is a type of damage and not a theory of recovery in and of itself

. . . . ” District of Columbia v. Beretta, U.S.A., Corp. , 872 A.2d 633,

6 Two Rivers does not challenge this ruling.11

646 (D.C. 2005) (en banc) (quoting Jonathan Woodner Co. v. Breeden , 665 A.2d 929, 934 (D.C. 1995)). Therefore, “with very rare exceptions, there is no liability [for nuisance] unless the case can be fitted into one of the[] familiar categories ” of tort liability, including an “ intentional invasion of the plaintiff’s interests” that is othe rwise tortious, such as IIED. Ortberg v. Goldman Sachs Grp. , 64 A.3d 158, 167 (D.C. 2013) (internal quotations, brackets , and emphasis omitted). 7 Two Rivers acknowledges this and only meaningfully argues the private nuisance claim based on alleged liabil ity for IIED

.

Even assuming that private nuisance can stand on its own without a separate
tort

– as the trial court did

– on the occasions when we have recognized private nuisance as actionable, we have required “ ‘ some degree of permanence ’ such that th e ‘ continuousness or recurrence of the things, facts, or acts which constitute the nuisance,’ give rise to an ‘unreasonable use.’” Wood v. Neuman , 979 A.2d 64 , 78 (D.C. 2009) (quoting Reese v. Wells , 73 A.2d 899, 902 (D.C. 1950) ) (collecting

7 Our most recent cases have noted an inconsistency in our case law about whet her private nuisance can be a n independent tort. See Ortberg , 64 A .3d at 169 n.5 (noting that “ the issue [of] whether private nuisance is recognized as an independent tort in the District of Columbia[] must be resolved by the en banc court ” ); see also Wan g v. 1624 U St., Inc. , 252 A.3d 891, 897 n.6 (D.C. 2021) (comparing majority opinion and opinion concurring in part and dissenting in part in Ortberg )

.12

cases). Such permanence amounting to an unreasonable use is not present here, where Two Rivers has alleged appellants were present outside the school on three occasions, and appellants Cirignano and Nicdao are only named in one of the incidents

. See Ortberg , 64 A.3d at 163, 168

- 69 (holding that even if private nuisance is cognizable as an independent tort, eight demonstrations outside company’s office building and five demonstrations at managing director’s home over the course of several weeks, involving “chanting slo gans and some vague threats ” and one “tense encounter” with a neighbor, did not result in “substantial injury or continuous or constantly recurring acts that constituted an unreasonable interference with [plaintiffs’] use of their property ” (internal quota tion marks omitted)).

Because the private nuisance claim is legally insufficient, it is necessarily not “likely to succeed on the merits.” See Am erican Stud. Ass’n v. Bronner , 259 A.3d 728, 741 (D.C. 2021). Finally, because we hold the private nuisance claim cannot stand, Two Rivers cannot demonstrate a likelihood of success on civil conspiracy to create a private nuisance , which requires an underlying tort. Ortberg , 64 A.3d at13

162 n.2. 8 We therefore hold that the trial court erred in holding that Two Rivers had demonstrated it was likely to succeed on the merits of its private nuisance and conspiracy to create a private nuisance claims in order to overcome the Anti

SLAPP special motion to dismiss.

*****

For the foregoing reasons, the trial court’s decision is reversed, and we remand so that it may dismiss the case

.

So ordered.

8 Two Rivers also argues we should remand for additional discovery , which the trial court, having dis cretion to order limited discovery relating to the Anti

SLAPP motion, D.C. Code §16

- 5502(c)(2) , denied as moot when it denied the special motion to dismiss. However, Two Rivers has not identified any needs for targeted discovery that would address the leg al deficiencies noted above ; rather, it focuses on evidence of coordination between appellants, appellants’ activities that have occurred after the ruling on the special motion to dismiss, and general developments in the NoMa area. Similarly, we decline t o consider evidence submitted to the trial court after its ruling on the special motion to dismiss.