# Opposition — First National Bank v. Marquette National Bank > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1344%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 1042 ## Text No. 80-1391 MAR 18 1981 ALEXAA Jew i. STEVAS, Clek Semke v. Enid Automobile Dealers Assoc.., 456 F. 2d 1361, 1366-67 (10th Cir. 1972) (“fraud, cor- ruption or misuse of the state processes”); Metro Cable Co. v. CATV of Rockford, Inc., 516 F. 2d 220, 232 (7th Cir. 1975) (“conduct that was not genuinely aimed at securing favorable governmental action but at dis- couraging competitors from seeking governmental ac- tion”); Franchise Realty v. S.F. Loc. Joint Exec. Bd., 542 F. 2d 1076, 1084 (9th Cir. 1976), cert. denied, 430 U.S. 940 (1977) (“used the threat of litigation as a blud- geon in its attempts to retain its monopoly”); Feminist Women’s Health Center v. Mohammad, 586 F. 2d 530, 543, fn. 6 (Sth Cir. 1978), cert. denied, 444 U.S. 924 (1978) (“the petitioning was not a genuine effort to in- fluence public officials to take governmental action”); Hahn v. Codding, 615 F. 2d 830, 840 (9th Cir. 1980) ‘The issue of whether a single, abusive lawsuit, as opposed to a “pat- tern of baseless, repetitive claims.” is sufficient to come within the “sham exception’’ was addressed but left undecided in Vendo. This, however, does not provide a basis for review in the present case since the District Court held that, even assuming the pursuit of a single, abusive lawsuit could subject ore to civil liability. there was no abuse of process in Marquette’s pursuit of the Injunction Suit (App. pp. 21- 24). 482 F. Supp. at 520-21. 11 (“overlapping, repetitive, and baseless lawsuits”). See al- so, Wilmonite, Inc. v. Eagan Real Estate, Inc., 454 F. Supp. 1124, 1131 (N.D. N.Y. 1977), aff'd, 578 F.2d 1372 (2d Cir. 1978), cert. denied, 439 U.S. 983 (1978) (“the corruption of the administrative or judicial proc- ess”). In applying WNoerr-Pennington principles to Peti- tioners’ alleged claims for violation of the Civil Rights Act and for tortious interference with business, the Dis- trict Court did so on the basis that the First Amendment right of petition affords protection against such claims (when they are based upon lobbying and litigation activi- ties) in the same manner as protection is afforded against antitrust claims (App. pp. 25-26 and p. 28). 482 F. Supp. at 521-22 and 524-25. The Court of Appeals af- firmed (App. p. 3 and pp. 7-8, fn. 4). 636 F. 2d at 197 and 199, fn. 4. While it is true that this Court has not rendered an opin- ion regarding the application of Noerr-Pennington prin- ciples to claims for violation of the Civil Rights Act or for tortious interference with business, the District Court’s decision in this regard is supported by all of the lower courts which have faced the issue, including two cases in which this Court has denied review. See, Stern v. United States Gypsum, Inc., 547 F. 2d 1329, 1344 (7th Cir. 1977), cert. denied, 434 U.S. 975 (1977) (civil rights claim brought under 42 U.S.C §1985); State of Missouri v. National Organization for Women, Inc., 620 F. 2d 1301, 1316-19 (8th Cir. 1980), cert. denied, — U.S. —, 101 S. Ct. 122 (1980) (tortious interference with business claim); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 614-15 (8th Cir. 1980) (civil rights claim brought under 42 U.S.C. §1983); Sierra Club v. Butz, 349 F. Supp. 12 934, 938 (N.D. Calif. 1972) (tortious interference with business claim); Weiss v. Willow Tree Civic Ass’n, 467 F. Supp. 803, 816-818 (S.D. N.Y. 1979) (civil rights claim brought under 42 U.S.C. $1983); Pennwalt Corp. v. Zenith Laboratories, Inc., 472 F. Supp. 413, 424 (E.D. Mich. 1979), appeal dismissed, 615 F. 2d 1362 (6th Cir. 1980) (tortious interference with business claim). The Circuit Court’s Decision Regarding §1983 is Not in Conflict with Maine v. Thiboutot The District Court’s summary judgment and dismissal of Petitioners’ Civil Rights Act claim was based on three alternative grounds: (1) “that the Noerr-Pennington im- munity . . . should also be applied to a claim based upon $1983” (App. p. 25); (2) “that $85 of the National Bank Act [does not] secure ‘a right, privilege and im- munity’ within the meaning of the Civil Rights Act” (App. p. 27); and (3) “that $1983 privides a cause of action only for deprivations of federal statutory rights which provide for ‘equal rights’ or ‘the protection of civil rights’ ” (App. p. 27). 482 F. Su pp. at 521-22. In connection with the last of the above alternative grounds, the District Court did not have the benefit of this Court’s decision in Maine v. Thiboutot, — U.S. —. 100 S. Ct. 2502 (1980), wherein it was held that the reach of §1983 is not limited to the deprivation of civil rights or equal protection laws. 100 S. Ct. at 2504-06. Cognizant of this clarification of the scope of $1983, the Court of Appeals cited the other two alternative grounds relied upon by the District Court in granting summary 13 judgment on the Civil Rights Act claim (App. pp. 5-7). 636 F. 2d at 198-99. In their Petition for Certiorari herein, Petitioners con- tend that the Court of Appeals’ decision is in conflict with Maine v. Thiboutot. Certainly this would be true if the Court of Appeals had affirmed the dismissal of the Civil Rights Act claim on the ground that causes of action under $1983 are limited to deprivation of civil rights or equal protection laws. However, as noted above, this ground was not the basis for the Court of Appeals’ de- cision. The Court of Appeals recognized that federal laws which grant “rights, privileges or immunities” to the citi- zenry are within the scope of $1983; however, it also held that the authority given national banks to charge a cer- tain rate of interest under 12 U.S.C. §85°, is not “a right, privilege or immunity secured by federal law within the meaning of 42 U.S.C. §1983” (App. p. 5). 636 F. 2d at 198. This ruling is not in conflict with Thiboutot. The Court of Appeals also noted that Petitioners’ Civil Rights Act claim could also be denied on Noerr-Penning- ton principles: “The interests in protecting citizens’ right of peti- tion and free speech that were found to outweigh the statutory restrictions in [antitrust] cases seem equally as strong here and could provide an alterna- tive ground for immunizing Marquette from penalty under Section 1983.” (App. p. 8, fn. 4). 636 F. 2d at 199, fn. 4. As discussed earlier herein, other lower courts have sim- ilarly applied Noerr-Pennington to §1983 claims. By ap- ®See, The Marquette National Bank of Minneapolis v. First of Omaha Service Corporation, 439 U.S. 299, 301 (1978). 14 plying Noerr-Pennington to the Civil Rights Act claim, any issue as to whether §85 of the National Bank Act confers a statutory “right, privilege or immunity” within the meaning of $1983 is rendered moot. CONCLUSION Based on the foregoing, it is respectfully submitted that the petition for a writ of certiorari be. in all things, denied. Respectfully submitted. J. Patrick McDavitt LEVITT, PALMER, BOWEN, ROTMAN & SHARE 500 Roanoke Building Minneapolis, Minnesota 55402 Telephone: (612) 339-0661 Attorneys for Respondent The Marquette National Bank of Minneapolis --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1344%3A2. Public record. Not legal advice.