Appendix — Bayou Fleet, Inc. v. Home Place Batture Leasing, Inc.

Supreme Court,

FILED

No. 00 1 06 8 DEC 2 4 2m

In the" Ur THE CLteNK

Supreme Court of the Anited States

BAYOU FLEET, INC.

Petitioner

VERSUS

HOME PLACE BATTURE LEASING, INC., NEAL

CLULEE, MARY CLULEE and N/C MATERIALS, INC.

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX

JULIAN R. MURRAY, JR. (7526)

CHEHARDY, SHERMAN, ELLIS,

BRESLIN & MURRAY

One Galleria Boulevard, Suite 1100

Metairie, Louisiana 70001

Telephone: (504) 833-5600

Co-Counsel for Petitioner,

Bayou Fleet, Inc.

Riverside Printing, L.L.C., 4939 Tchoupitoulas, N. O., LA 70115, (504) 897-5000

INDEX TO APPENDIX

Appendix Page

Appendix A Opinion of the United States

Court of Appeals for the Fifth

RG aiid soci eileen clin aksectcdscccasis A-1

Appendix B_ District Court’s Order and Reasons

on Merits of Permanent Injunction

and Declaratory Judgment Trial............ A-24

Appendix C District Court’s Memorandum

Opinion on Trial on the Merits............... A-45

A-l

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

FILED

NOV 2 8 2000

No. 99-31172

BAYOU FLEET, INC.,

Plaintiff-Appellant,

VERSUS

ELLIS A. ALEXANDER, ET AL,

Defendants

HOME PLACE BATTURE LEASING, INC.:

NEAL CLULEE; MARY CLULEE;

N/C MATERIALS, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before KING, Chief Judge, PARKER, Circuit Judge, and

FURGESON, District Judge.

ROBERT M. PARKER, Circuit Judge:

*District Judge of the Western District of Texas sitting by

designation.

Appellant Bayou Fleet, Inc. appeals from the district

court's order granting Mary and Neal Clulee's motion to

amend the partial final consent judgment and the district

court's final judgment dismissing Bayou Fleet's claims with

prejudice. Bayou Fleet filed this action against Ellis

Alexander; St. Charles Parish; the Parish's insurer, Coregis

Insurance Company; Neal Clulee and his wife Mary Clulee

("the Clulees"); and the Clulees’ two companies, Home

Place Batture Leasing, Inc. ("Home Place") and NIC

Materials, Inc. Bayou Fleet alleged that the defendants con-

spired to eliminate it from the sand pit business through chal-

lenges to its zoning status and through attempts to persuade

authorities against issuing permits. Specifically, Bayou Fleet

alleged that the defendants abused its constitutional rights

through aé_ civil conspiracy under 42 U.S.C.

§ 1983 and violated the Sherman Act, 15 U.S.C. §§ 1 and 2,

and the Louisiana Unfair Trade Practices Act, LA. REV.

STAT. ANN. § 51:1401, et seq., through their efforts to put

its sand pit operation out of business.

Before trial, Bayou Fleet settled with Alexander, St.

Charles Parish, and Coregis Insurance Company. In lieu of

the settlement, the court entered a consent judgment, but

later amended portions of the judgment that pertained to

Bayou Fleet's zoning status. At the close of a non-jury trial,

the district judge denied Bayou Fleet relief against the

Clulees, holding that the Clulees were immune from liabili-

ty under the Noerr-Pennington doctrine. See Bayou Fleet,

Inc. v. Alexander, 68 F. Supp. 2d. 734, 744 (E.D. La. 1999) .

Bayou Fleet argues on appeal that the trial court effectively

denied its First Amendment right of access to the courts,

abused its discretion by amending the consent judgment, and

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erred in its dismissal of the case under the Noerr-Pennington

doctrine.

Ri.

This case involves one of several disputes in a long f

eud between the Durant family and the Clulee family in

Hahnville, Louisiana.! Both families own businesses along-

side the Mississippi River in St. Charles Parish. The conflict

in this case concerns the Clulees’ attempts to curtail the

~Durants' sand pit operations. The Durants own plaintiff-

appellant Bayou Fleet, and the Clulees own defendants-

appellees Home Place and NIC Materials. Bayou Fleet and

Home Place maintained the only active sand pits in

Hahnville.?

In 1997, Ronald Adams Contractors, Inc. ("Adams")

needed sand from the Mississippi River to construct roads in

a nearby parish. Adams required a permit from the U.S.

Army Corps of Engineers to dredge sand from the

Mississippi and a permit from the LaFourche Basin Levee

District Board of Commissioners ("the Levee Board") to

operate a sand pit, in which the sand would be stored until

trucks hauled it to the construction sites. After receiving bids

from local sand pit operators, Adams chose Bayov Fleet.

| For a history of the controversy between the parties in this case, see -

Bayou Fleet, 68 F. Supp. 2d. at 736-743.

2A third sand pit, owned by the Giambelluca family, went out of busi-

ness after a dispute between the Giambellucas and the Clulees. See

Giambelluca v. Parish, 687 So.2d 424 (La. Ct. App. Sth Cir. 1996).

A-4

Adams filed for the necessary permits in March of

1997. Shortly thereafter, the Corps of Engineers received a

number of complaints from residents near Bayou Fleet's

property who opposed the operation of sand pits in the area.

The neighbors complained that sand pit operations create

health risks from air pollution, safety problems around the

pits, and general nuisances from trucks traveling to and from

the pits.

Robin Durant and a representative from Adams met

with Ellis Alexander, a Parish Councilmember renowned for

his oppositions to sand pits. Durant and Adams assured

Alexander that all precautions would be taken to reduce the

hazards caused by the sand pit operations. Alexander did not

openly oppose Bayou Fleet's operations at their meeting.

In order to solicit business for his own sand pit, Neal

Clulee set up a meeting with Adams to discuss the sale of

sand from Homplace. At the meeting, Clulee informed

Adams that he opposed the Bayou Fleet operation and that,

unlike Bayou Fleet, “he could keep the local authorities sat-

isfied." Bayou Fleet, 68 F. Supp. 2d at 738. Adams declined

Mr. Clulee's offer.

Bayou Fleet claims that the alleged conspiracy

between Alexander and the Clulees began on April 28, 1997.

On this date, telephone records show that Neal Clulee made

several attempts to contact Alexander. Shortly after the calls,

Alexander informed Earl Matherne, Director of the

- Department of Planning and Zoning for St. Charles Parish,

that Alexander’s constituents were objecting to Bayou Fleet's

A-5

sand pit operations under the Parish's zoning ordinance.3

Matherne submitted the zoning issue to the Parish Attorney,

who, after reviewing Bayou Fleet's business records, con-

cluded that Bayou Fleet had not lost its non-conforming use

status.

Bayou Fleet claims that the conspiracy continued

from May through December of 1997, in which time

Alexander argued before the Parish Council, the St. Charles

Parish Coastal Zone Advisory Committee ("the Zoning

Committee"), and the Levee Board against Bayou Fleet's

sand pit operations. Neal Clulee made over forty phone calls

to Alexander's home during this time. The telephone compa-

ny's records show that many of these calls corresponded to

Alexander's protests before local authorities.4

On May 29, 1997, at a regular Zoning Committee

meeting, Alexander and the Clulee's lawyer, Joel T. Chaison,

urged the committee to recommend that the Parish Council

submit a letter of objection to the Corps of Engineers

3 The zoning ordinance restricted the operation of sand pits, but allowed

preexisting sand pits to continue in use as long as operations did not

cease for six months. Therefore, Bayou Fleet could continue its non-con-

forming use so long as it had not let its sand pit business cease operations

for six months.

4 The Clulees also attempted to sway public officials without Alexander's

help. On May 30, 1997 and July 3, 1997, Mary Clulee wrote to the Corps

of Engineers protesting Adams’ proposed dredging permit. Mrs. Clulee

claimed that Adams intended to dredge sand from a section of the river

located immediately in front of the Clulees' property. Despite Adams’

assurance in June of 1997 that it would not dredge in front of the Clulee

property, the Clulees maintained their opposition to the project.

A-6

concerning Adams' permit. Seven members of the public also

spoke in opposition to Adams' project at the meeting. That

same day, Clulee placed two telephone calls to the Alexander

residence. Despite Alexander's protests, the Zoning

Committee issued a recommendation to the Parish Council

that supported Adams’ project.

On June 2, 1997, at a regularly scheduled meeting of

the Parish Council, Alexander proposed a resolution to issue

a letter of objection to the Corps of Engineers urging the

denial of Adams’ permit application. Alexander suggested

that, in the alternative, Adams should be required to take

extra precautions to eliminate safety and health hazards by

using Home Place’s access ramp instead of Bayou Fleet's

ramp, because the latter was located too close to residential

neighborhoods. Because there was no road to the Clulees,

ramp from Bayou Fleet's property behind the levee, the alter-

native proposal had the same effect as the letter of objection.

Nonetheless, the Parish Council adopted Alexander's resolu-

tion. Prior to the Levee Board meeting, Neal Clulee made

four calls to Alexander's home.

Alexander forwarded the Parish Council's objection

to the Levee Board, which, in turn, denied Adams’ permit.

Without the Levee Board's permission to stockpile and move

the sand over the levee, the Corps of Engineers could not

issue a permit to dredge the sand out of the river. However,

Adams was able to postpone a final decision from the Corps

of Engineers until a second meeting of the Levee Board.

On July 1, 1997, the Levee Board reconsidered its

previous decision and granted Adams’ operation permit.

A-7

Alexander, Adams, and Durant attended the meeting.

Although the Clulees were not present, Neal Clulee placed

two calls to Alexander's residence before the meeting.

At the following Parish Council session, Alexander

proposed a resolution to audit Bayou Fleet's sales tax returns.

Although the Parish Council denied Alexander's proposition,

Alexander was able to convince the St. Charles Parish Tax

Collection Department to conduct a sales tax audit of Bayou

Fleet, which resulted in no tax violations. During this period,

the Clulees placed two more telephone calls to Alexander.

On July 14, 1997, Bayou Fleet filed the present law-

suit against Alexander, the Parish, the Clulees and the

Clulees’ companies, Home Place and NIC Materials.

Despite the fervent opposition by Alexander to

Adams' operation, the Corps of Engineers issued Adams a

permit to dredge on July 21, 1997.

Nonetheless, Alexander continued his assault against

Bayou Fleet's sand pit operation. At the Parish Council meet-

ing on September 8, 1997, he proposed a new Levee Law

ordinance and a Special Legal Counsel resolution The

Council adopted the proposals over the veto of the Parish

President. The Levee Law required the permission of the

Parish Council before anyone was allowed to cross over the

levee. Violation of the ordinance was a criminal offense. The

Special Legal Counsel resolution mandated the appointment

of legal counsel to conduct an investigation into Bayou

Fleet's zoning status. Alexander requested that Joel T.

A-8

Chaisson, the Clulees' attorney, be appointed to the the posi-

tion.

Bayou Fleet filed for an injunction and for declarato-

ry relief in federal district court. The district court held that

the Levee Law and the Special Legal Counsel resolution was

submitted in retaliation to Bayou Fleet's law suit and "with a

bad faith intent to injure Bayou Fleet." Bayou Fleet Inc: v.

Alexander, 1997 WL 625492, *8 (E.D. La. Oct. 7, 1997).

The court concluded that the ordinance and resolution vio-

lated the equal protection clause of the Fourteenth

Amendment.

On March 12, 1998, Alexander filed a motion for

summary judgment. The district court granted the motion

and dismissed Bayou Fleet's claims against Alexander in his

individual capacity under the Noerr-Pennington doctrine.

The court held that Alexander was personally immune from

liability for his appearances before the Zoning Committee

and the Levee Board. See Bayou Fleet, Inc. v. Alexander, 26

F. Supp. 2d 894, 897 (E.D. La. 1998).

The district court's ruling on the Parish Council ordi-

nances and the court's dismissal of the suit against Alexander

prompted settlement negotiations between the remaining

parties. The defendants, with the exception of the Clulees,

reached a settlement on December 9, 1998. The settlement

required the Parish Council to recognize Bayou Fleet's non-

conforming use status. The district judge signed the consent

judgment on January 21, 1999.

Before the parties reached their settlement agree-

A-9

ment, the Clulees filed a mandamus action in state court to

challenge Bayou Fleet's operations under the zoning restric-

tions. In response to the federal court's consent judgment, the

Clulees filed a motion to amend or alter the judgment, claim-

ing that the federal judge's consent decree affected their

rights in state court. The district judge granted the Clulees'

motion. Bayou Fleet argues on appeal that the court abused

its discretion by amending the consent judgment.

On February 12, 1999, ten days before trial, the dis-

trict judge ordered Bayou Fleet and the Clulees to submit

briefs on whether the Clulees were entitled to Noerr-

Pennington immunity. Bayou Fleet argued that because the

Clulees did not timely raise Noerr-Pennington as an affirma-

tive defense, the issue was waived. The Clulees moved for

summary judgment, but the court declined to rule on the

motion until the conclusion of trial. Bayou Fleet and the

Clulees proceeded to trial before the district judge on

February 22, 1999. The trial court entered its judgment dis-

missing Bayou Fleet's case for reasons of Noerr-Pennington

immunity on September 29, 1999.

II.

ray Right of Access to Courts

In its first point of error, Bayou Fleet claims that it

was denied its First Amendment right of access to the courts

because of a law clerk's improper participation in the non-

jury trial. Bayou Fleet claims that the law clerk directed the

district judge during the course of proceedings to the extent

that the law clerk effectively presided over the trial. It argues

A-10

that the law clerk's participation denied it meaningful access

to the courts.5

Bayou Fleet points to several instances in the trial

record that it claims are representative of the law clerk's lead-

ing role in the proceedings. First, the law clerk interrupted

the judge regarding the time when the judge could rule on a

motion. After the judge answered an attorney's question

regarding the time when he would rule on a motion, the law

clerk interjected stating, "Judge, there is no way we can rule

on it by 1:30 today because I am sitting in the courtroom

right now." To which the judge replied to counsel, "It will

have to be later."

Second, Bayou Fleet complains that the law clerk

questioned witnesses and corrected the judge's ruling on the

defendants’ motion for summary judgment. The judge stated

that the motion for summary judgment was denied, and the

law clerk interrupted stating, "Judge, it's not the merits that

5 Bayou Fleet cites several cases from this Court where either counsel or

the judge should have been disqualified because of a law clerk's special

knowledge of a case. See Hall v. Small Business Administration, 695 F.

2d 175 (Sth Cir. 1983) (holding that a law clerk's continuing participation

with a judge in a case in which her future employer was counsel gave rise

to an appearance of impartiality) ; Fredonia Broadcasting Corp. v. RCA

Cor., 569 F.2d 251 (Sth Cir. 1978) (concluding that counsel had an

unfair advantage because he worked as the — s nw clerk in an earli-

er trial of the case) ; Kennedy eat Atlantic & Ps

$51 F.2d 593 (Sth Cir. 1977) (holding that a iiie clerk oer en not gain spe-

cial knowledge of a case through his own investigation of the facts). The

law clerk in this case did not have special knowledge of the facts that

would raise an appearance of impartiality. These cases do not address the

issue of whether a law clerk's participation at trial precludes a litigant's

right of access to the courts.

A-11

are denied, it's denied because they set it af ter trial. The mer-

its of the motion will be addressed in the opinion." Bayou

Fleet argues that this exchange clearly indicates that the law

clerk was ruling on the motion instead of the judge.

Finally, Bayou Fleet points out that the judge inter-

rupted court for two days so the law clerk could travel out of

town to visit her mother. Bayou Fleet alleges that the court's

decision to postpone the trial suggests that the judge was

incapable of presiding over the trial without the law clerk

present.

The Clulees insist that Bayou Fleet has taken the law

clerk's behavior out of context. The Clulees assert that the

judge intervened and ruled on objections throughout the trial

without the clerk's assistance. They claim that, in any event,

after two years of pretrial proceedings that culminated in

several published and unpublished opinions, Bayou Fleet

cannot convincingly argue that it was denied access to the

courts.

Access to the courts is a constitutionally protected

fundamental right and one of the privileges and immunities

awarded citizens under Article IV and the Fourteenth

Amendment. See Chambers v. Baltimore & Ohio Railroad,

207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143 (1907). The First

Amendment right to petition the government has as one

aspect the right of access to the courts. See California Motor

Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct.

609, 30 L.Ed.2d 642 (1972) ; Wilson v. Thompson, 593 F.2d

1375 (5th Cir. 1979) ; NAACP. v. Button, 371 U.S. 415, 83

S.Ct. 328, 336, 9 L.Ed.2d 405 (1963); Coastal States

A-12

Marketing, Inc. v Hunt, 694 F.2d 1358, 1363 (Sth Cir. 1983)

Judge Thornberry's writing in Ryland v. Shapiro, 708 F.2d

967 (1983), serves to guide our analysis today. Relying on

Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72

(1977) and Rudolph v. Locke, 594 F.2d 1076, 1078 (Sth Cir.

1979), we learn in Ryland that

A mere formal right of access to the courts does not

pass constitutional muster. Courts have required that

the access be "adequate, effective, and meaningful.”

We therefore have reviewed this record to determine

whether the unusual and troubling participation in this non-

jury trial by the judge's law clerk served to deny Bayou Fleet

meaningful access to the courts. Our review is further guid-

ed by the recognition that Article III of the constitution vest-

ing power in the Federal Courts can only be read to vest the

power of the court in its officeholder - the judge. Indeed the

judge is the only person involved in the trial of cases in

Federal Court who has taken an oath pursuant to Article III.

It follows that the constitution requires those functions tradi-

tionally comprising the act of judging be performed by the

judge.

Our review of the record persuades us that Bayou

Fleet was not denied meaningful access to the courts. The

judge was engaged in the pretrial stage and the trial itself. He

questioned both witnesses and lawyers during the trial, ruled

on the evidence and made those decision that were necessary

for a traditional trial. We therefore, can not say that in this

case that staff usurped the judge's role in the decision-mak-

ing process of the trial. The involvement of the

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judge's law clerk in the trial was unfortunate and the judge

should take whatever action is necessary to make sure that it

does not recur.

B. The Consent Judgment

Before Bayou Fleet, the Parish, Alexander and

Coregis Insurance Company reached their settlement agree-

ment, the Clulees filed suit in state court to determine

whether Bayou Fleet properly retained its zoning status.

After the district judge signed the consent judgment, Bayou

Fleet introduced the judgment in state court claiming that the

proceeding was barred by the doctrine of res judicata. The

Clulees filed a motion in federal district court to amend or

alter the consent judgment. The district court granted the

Clulees' motion. Bayou Fleet alleges that the court abused its

discretion by amending the judgment.

A consent judgment, also known as a consent decree,

is freely negotiated by the parties and has the full effect of

res judicata. See United States v. City of Miami, 664 F.2d

435, 439 (Sth Cir. 1981) (en banc) (Rubin, J.) . Because a

consent judgment has a continuing affect on the rights of lit-

igants, courts are required to ascertain whether the parties

agreement "represents a reasonable factual and legal deter-

mination based on the facts of the record .. .. ” Jd. at 441. "A

consent decree must arise from the pleaded case and further

the objectives of the law upon which the complaint is based."

League of United Latin Amer. Citizens v. Clements, 999 F.2d

831, 846 (Sth Cir. 1993) (citing Local No. 93, Intfl Ass'n of

Firefighter v. City of Cleveland, 478 U.S. 501, 525 (1986)) .

When litigants reach a settlement that also affects

A-14

third parties, "the court must be satisfied that the affect on

them is neither unreasonable nor proscribed." City of Miami,

664 F.2d at 441. We review the approval. or denial of a con-

sent judgment for abuse of discretion. See Williams v. City of

New Orleans, 729 F.2d 1554, 1558 (Sth Cir. 1984).

Bayou Fleet argues that the zoning issue was

resolved in the court's October 1997 order, in which the

judge held that the Parish Council's Levee Law and Special

Legal Counsel resolution was unconstitutional. Bayou Fleet

also claims that the Clulees should not be able to attack the

consent judgment simply because they refused to approve

the final settlement.

A consent judgment must be founded on the legal and

factual issues raised in the pleadings. League of United Latin

Amer. Citizens, 999 F.2d at 846. Bayou Fleet petitioned the

district court for relief under section 1983 and antitrust laws

and for an injunction and declaratory relief regarding the

- Parish Council ordinances. The parties did not ask the court

to resolve the zoning issue in their pleadings, and the court's

October 1997 order did not determine whether Bayou Fleet

retained its zoning status.®

Courts must also examine the effect of a consent

judgment on third parties. See Local No. 93, Intfl Assfn of

6 The district court's order states, "The evidence supports the Parish

Council's conclusion that Bayou Fleet did not lose its non-conforming

status.” See Bayou Fleet v. Alexander, 1997 WL 625492, *8 (E.D. La.

1997) . Put into context, the court's assertion indicates that the defendants

did not provide adequate reasons why special legal counsel should be

appointed since the Parish Council had previously investigated Bayou

Fleet's zoning status. See id. The court did not reach a legal conclusion

concerning the zoning ordinances applicability to Bayou Fleet.

A-15

Firefighter, 478 U.S. at 529. Louisiana law allows any per-

son to file a civil action to enforce compliance with zoning

restrictions. See LA. REV. STAT. ANN. § 9:5625 (1997) .

Even though the Clulees participated in the negotiation

process, they did not agree to the settlement terms. Instead,

they filed suit in state court to determine the zoning dispute.

Just because the Clulees participated in settlement negotia-

tions and refused to acquiesce to the settlement terms does

not alleviate the district court's duty to assess the judgment's

affect on their rights. By signing the consent judgment, the

district judge frustrated the Clulees' right to file an action in

State court to enforce the zoning restrictions. Because the

consent judgment adversely affected the rights of

non-settling third parties, the district court did not abuse its

discretion by amending the consent judgment.

C. Noerr-Pennington Immunity

The Noerr -Pennington doctrine confers immunity to

private individuals seeking anticompetitive action from the

government. See Eastern R.R. Presidents Conference v.

Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United

Mine Workers v. Pennington, 381 U.S. 657 (1965) . See also

California Motor Transport Co. v. Trucking Unlimited, 404

U.S. 508, 510-11 (1972) (extending Noerr-Pennington pro-

tection to petitioning activities aimed at state and federal

agencies and courts) ; City of Columbia v. Omni Outdoor

Advertising, Inc., 499 U.S. 365 (1991) (granting Noerr-

Pennington immunity for efforts to influence local govern-

ments) . Noerr-Pennington immunity applies to any concert-

ed effort to sway public officials regardless of the private cit-

izen's intent. See Pennington, 381 U.S. at 670. Although

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the Supreme Court has limited its discussion of Noerr-

Pennington immunity to cases involving antitrust litigation,

this Court has extended the Noerr-Pennington doctrine to

include claims under section 1983. See Video Int'l Prod., Inc.

v. Warner-Amex Cable Communications, Inc., 858 F.2d

1075, 1084 (Sth Cir. 1988), cert. denied, 491 U.S. 906 (1989)

7

The district court held that the Noerr-Pennington

doctrine was not an affirmative defense and that the issue of

immunity could be raised at any time. The court further con-

cluded that the Cluelees were immune under Noerr-

Pennington for contacting Alexander concerning Alexander's

attempts to thwart Bayou Fleet's sand pit operations. The dis-

trict court therefore dismissed Bayou Fleet's

7 Noerr -Pennington immunity does not stem solely from the First

’ Amendment; rather, it is inextricably associated with interpretations of -

the Sherman Act. See Coastal States Marketing, Inc. v. Hunt, 694 F.2d

1358 (Sth Cir. 1983) . The Tenth Circuit has pointed out that the Noerr-

Pennington doctrine should not describe immunity that arises only from

the First Amendment right to petition. See Cardtoons, L.C. v. Major

League Baseball Players Assfn, 208 F.3d 885, 888-91 (10th Cir. 2000)

(“While we do not question the application of the right to petition outside

of antitrust, it is a bit of a misnomer to refer to it as the

NoerrPenningtondoctrine . .. . ”) . However, where an individual's con-

duct raises Noerr-Pennington immunity under antitrust law, the same

conduct “is also out of the scope of section 1983 liability.” Video Int-11

Prod.., Xnc., 858 F.2d at 1084. The Clulees may be entitled to immunity

both under the Noerr-Pennington doctrine for purposes of antitrust lia-

bility and the First Amendment for purposes of Bayou Fleet's section

1983 claim. Because the same facts and legal analysis apply to both the-

ories of immunity, we will not make a distinction between the two.

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section 1983, Sherman Act, and Louisiana Unfair Trade

Practices Act claims. See Bayou Fleet v. Alexander, vegies F,

Supp. 2d 734 (E.D. La. 1999).

Bayou Fleet argues on appeal that Noerr -Pennington

immunity is an affirmative defense, which was waived

because the Cluelees failed to timely assert it under Rule 8

(c) of the Federal Rules of Civil Procedure. Bayou Fleet also

contends that, in the alternative, the Noerr-Pennington doc-

trine does not apply to the behavior exhibited by the Clulees.

1. Waiver of the Noerr-Pennington Affirmative

Defense

As we recently held in Acoustic Systems, Inc. vy.

Wenger Corp., 207 F.3d 287 (5th Cir. 2000), the Noerr-

Pennington doctrine should be raised as an affirmative

defense.® Generally, a party's failure to raise an affirmative

defense in its first responsive pleading results in waiver.

Lucas v. United States, 807 F.2d 414, 417 (Sth Cir. 1986).

"However, where ‘the matter is raised by the trial court [or

the litigants] that does not result in unfair surprise, technical

failure to comply precisely with Rule 8(c) is not fatal,’ and in

such a situation a court may hold that the defense is not

waived.” McConathy v. Dr. PepperlSeven Up Corp., 131 F.

3d 558, 562 (1998) (quoting Lucas, 807 F. 2d at 417) . An

8 In Acoustic Systems, we stated that the Noerr-Pennington doctrine does

not provide persons complete immunity from suit; rather, the “doctrine

provides only an affirmative defense....” Acoustic Systems, Inc., 207 F.3d

at 296. The trial court erred in holding that Noerr-Pennington immunity

should not be raised as an affirmative defenses.

A-18

affirmative defense is not waived if it is raised at a "prag-

matically sufficient time, and the plaintiff was not prejudiced

in its ability to respond.” Chambers v. Johnson, 197 F.3d

732, 735 (Sth Cir. 1999) (quoting Lucas, 807 F.2d at 418) We

therefore look to the record to ascertain whether the trial

court raised Noerr-Pennington at a pragmatically sufficient

time and whether Bayou Fleet was prejudiced by the delay in

raising the defense. See id.

Noerr-Pennington was first raised by Ellis Alexander

in his motion for summary judgment filed on January 2,

1998. Alexander claimed that he was entitled to immunity

for his personal efforts to persuade the Levee Board, the

Zoning Committee, the Army Corps of Engineers and the

Parish Council to curtail Bayou Fleet's sand pit operations.

Bayou Fleet submitted a memorandum on the Noerr-

Pennington issue in response to Alexander's motion. The dis-

trict court dismissed Bayou Fleet's suit against Alexander in

_ its September 1998 order. See Bayou Fleet v. Alexander, 26

F. Supp. 2d 894 (E.D. La. 1998) . Hence, Bayou Fleet was

aware that Noerr-Pennington was an issue in the case at least

by January 2, 1998.

After its order dismissing Alexander in his personal

capacity, the Clulees raised the issue for the second time in

the Pre-Trial Order dated February 4, 1999, approximately

eighteen days before trial. Although Bayou Fleet objected to

immunity as a contested issue of law, it does not appear that

the court ever ruled on the objection. On February 11, 1999,

the district judge requested each party to submit a brief on

the applicability of Noerr-Pennington. The Clulees then filed

a motion for summary judgment on the basis of Noerr-

A-19

Pennington immunity. Bayou Fleet also submitted its mem-

orandum claiming either that Noerr-Pennington had been

waived or that it did not apply.

The non-jury trial began on February 22 and contin-

ued through March 1. During trial, the Clulees sought to

amend their original answer to include the Noerr-Pennington

issue, but the trial court denied their motion. The court

specifically stated that its ruling was not a finding that the

issue had been waived.

Bayou Fleet relies on Haskell v. Washington

Township, 864 F.2d 1266, 1273 (6th Cir. 1988), in which the

Sixth Circuit found that the trial court could not raise sua

sponte a statute of limitations defense after three years of lit-

igation. Unlike the litigant in Haskell, Bayou Fleet knew that

Noerr-Pennington was an issue in the case when Alexander

filed his motion for summary judgment almost one year

before trial. Bayou Fleet's argument that it was unfairly sur-

prised by the Clulees' attempts to raise immunity in the

Pretrial Order is untenable.

Bayou Fleet argues that its inability to conduct dis-

covery concerning the "sham" exception to the Noerr-

Pennington doctrine resulted in prejudice. At no time after

the issue was raised in the Pretrial Order did Bayou Fleet

move for a continuance to conduct discovery concerning the

"sham" exception. Instead, Bayou Fleet argued in its pretrial

memorandum that it was prejudiced by the timing of the

immunity issue, but it did not state how. On appeal, Bayou

Fleet claims for the first time that they were not given the

opportunity to conduct adequate discovery. Given the fact

A-20

that Bayou Fleet knew Noerr-Pennington was a potential

issue throughout most of the discovery process, we find no

evidence that Bayou Fleet was prejudiced. Thus, the trial

court did not err by addressing the Noerr-Pennington issue.

2. Applicability of the Noerr-Pennington

Doctrine to the Cluelees

Bayou Fleet argues, in the alternative, that the Noerr-

Pennington doctrine does not apply to the Clulees' lobbying

efforts. Bayou Fleet points to the courts October 1997 order

in which the district court concluded that Alexander's pro-

posals were proffered in retaliation to Bayou Fleet's law suit.

Bayou Fleet contends that Noerr-Pennington does not apply

to retaliatory behavior or conduct in furtherance of a con-

spiracy. Specifically, Bayou Fleet claims that the Noerr-

Pennington doctrine should not protect defendants who

retaliate against plaintiffs for exercising their First

Amendment right to petition the courts.

The Supreme Court has clearly stated that efforts to

influence public officials will not subject individuals to lia-

bility, even when the sole purpose of the activity is to drive

competitors out of business. See Pennington, 381 U.S. at

670. The Court has allowed only one exception to the Noerr-

Pennington doctrine--the "sham" exception. See Omni

Outdoor Advertising, Inc., 499 U.S. at 380.9

9 Bayou Fleet urges this Court to ignore the Noerr-Pennington doctrine

because the defendants were allegedly involved in a civil rights conspir-

acy. A conspiracy exception to Noerr-Pennington immunity has been

explicitly rejected by the Supreme Court unless the conspiracy “reaches

beyond mere anticompetitive motivation.” Omni Outdoor Advertising,

Inc., 499 U.S. at 383. Bayou Fleet did not allege that the Clulees motives

included anything other than their desire to put its sand pit out of busi-

ness.

A-21

The "sham" exception involves attempts to influence

public officials for the sole purpose of expense or delay. See

Omni Outdoor Advertising, Inc., 499 U.S. at 380. The excep-

tion applies to defendants who use the process as an anti-

competitive weapon, rather than those who genuinely seek to

achieve an intended result. See id. at 381. The evidence must

show that a defendant's lobbying activities were "objectively

baseless" for the "sham" exception to apply. Professional

Real Estate Investors v. Columbia Pictures Indus., Inc., 508

U.S. 49, 60 (1993) ; Brown & Root, Inc. v. Louisiana State

AFL-CIO, 10 F.3d 316, 324 (Sth Cir. 1994). Lobbying activ-

ity is objectively baseless if a reasonable private citizen

could not expect to secure favorable government action. See

Professional Real Estate Investors, 508 U.S. at 60 ("[T]he

lawsuit must be objectively baseless in the sense that no rea-

sonable litigant could realistically expect success on the mer-

its").

Bayou Fleet argues that the Clulees lobbied local

officials in retaliation to Adams' contract with Bayou Fleet

and, later, Bayou Fleet's lawsuit. Bayou Fleet does not assert

that the Clulees’ endeavors were objectively unreasonable.

To the contrary, the evidence shows that a reasonable private

citizen could expect to secure favorable government action.

See id. The Clulees contacted a Parish Council-member and

wrote letters to the Army Corps of Engineers in hope to deny

Adams permits and revoke Bayou Fleet's non-conforming

zoning status. Their efforts resulted in the Parish Council's

adoption of a letter of objection to Adams’ dredging permit,

a review of Bayou Fleet's zoning status, and the approval of

the Levee Law and Special Legal Counsel resolution.

Because the Clulees achieved favorable results, their

A-22

endeavors were, by definition, reasonable. See id. at 61 n.5.

The "sham" exception therefore does not exclude the Clulees

from Noerr-Pennington protection.

Bayou Fleet asks this Court to create a new exception

to the Noerr-Pennington doctrine based on a defendant's

retaliatory conduct. Bayou Fleet claims that the Clulees'

should not be protected under Noerr-Pennington because

their lobbying activities affected its First Amendment right to

petition the courts for relief. Bayou Fleet claims that Noerr-

Pennington cannot be used to illegally abridge the rights of

other citizens. The Supreme Court has not established a sep-

arate exception to the Noerr-Pennington doctrine for retalia-

tory intent, and we decline to create a new exception here.

In California Motor Transport, the Supreme Court

held that First Amendment rights may not be used to deter

competitors "from having ‘free and unlimited access’ to the

agencies and courts." 404 U.S. at 515. The Court concluded

that attempts to deter competitors from petitioning the courts

and government agencies were not protected under Noerr-

Pennington. See id. However, the Court's holding in

California Motor Transport is limited to the confines of the

"sham" exception. See Omni Outdoor Advertising, Inc., 499

U.S. at 1355. As a result, Noerr-Pennington applies to all

genuine lobbying efforts, despite subjective intent and the

net effects on a competitor's First Amendment rights. See

Professional Real Estate Investors, 508 U.S. at 57. Thus,

retaliatory lobbying efforts are not per se excluded from

Noerr-Pennington protection unless the "sham" exception

applies.

A-23

Bayou Fleet does not argue and the record does not

show that the Clulees lobbying efforts were objectively

unreasonable. We therefore conclude that the district court's

dismissal of Bayou Fleet's section 1983, Sherman Act, and

Louisiana Unfair Trade Practices Act claims was not error.

See Omni Outdoor Advertising, Inc., 499 U.S. at 384 (apply-

ing Noerr-Pennington to dismiss an antitrust claim under

state law) ; Video Int'l Prod., Inc., 858 F. 2d at 1084 (apply-

ing Noerr-Pennington to shelter individuals from liability

under section 1983).

Tea

In sum, we conclude that the law clerk's role in the

non-jury trial did not affect Bayou Fleet's right of meaning-

ful access to the courts. We also affirm the district court's

order granting the amendments to the consent judgment and

the court's dismissal of Bayou Fleet's case against Mary and

Neal Clulee pursuant to the Noerr-Pennington doctrine.

AFFIRM

A-24

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Filed Oct 7, 1997

BAYOU FLEET, INC. CIVIL ACTION

VERSUS NO. 97-2205

ELLIS ALEXANDER, INDIVIDUALLY SECTION "1" (3)

AND IN HIS OFFICIAL CAPACITY AS

A COUNCIL MEMBER OF THE ST.

CHARLES PARISH COUNCIL, ET AL.

ORDER AND REASONS

Bayou Fleet, Inc. filed this action on July 14, 1997,

asserting claims under 42 U.S.C. § 1983 against Ellis

‘Alexander, individually and as a member of the St. Charles

Parish Council ("Council"), Neal Clulee, Mary Clulee, and

the Clulee’s company Home Place Batture Leasing, Inc.

("Home Place"). Bayou Fleet alleges in its complaint that

Alexander engaged in arbitrary and capricious actions which

he took under color of state law in furtherance of a conspir-

acy among himself, the Clulees, and Home Place. The

alleged object of the conspiracy was to obtain through

a series of zoning challenges, the elimination of Bayou Fleet

as a business competitor of the Clulees, and their company.

DATE OF ENTRY OCT 7 1997

A-25

On September 8, 1997, subsequent to the filing of

this lawsuit, Alexander proposed an ordinance and resolution

which the St. Charles Parish Council adopted on September

22, 1997 by overriding the Parish President's vetoes. The

next day, Bayou Fleet filed an amended complaint seeking

an injunction against the enforcement of these acts, and a

declaratory judgment that they are violative of the United

States Constitution. Bayou Fleet named the St. Charles

Parish Council and the Parish insurer as additional defen-

dants.

Bayou Fleet alleges that Alexander proposed the

ordinance and resolution as part of the conspiracy to destroy

its business. Bayou Fleet alleges that the procedures used to

pass the ordinance and resolution, as well as the substance of

the measures are violative of its rights under the First, Fifth,

and Fourteenth Amendments to the United States

Constitution. Specifically, Bayou Fleet alleges that the ordi-

nance is unconstitutionally vague, and that both measures

violate procedural and substantive due process, the equal

protection clause, and the First Amendment right of access to

the courts.

Both measures were published on October 1, 1997

and were scheduled to become effective on October 8, 1997,

in accordance with the St. Charles Parish Home Rule

Charter, Article IV, Section B(3)(f). On October 2, 1997,

Alexander introduced Emergency Ordinance No. 97-10-2 to

suspend the effect of the ordinance in order to "address the

! St. Charles Parish Ordinance No. 97-9-6 (“the ordinance") and St.

Charles Parish Resolution No. 4416 (“the résolution”).

A-26

concerns expressed by several corporate citizens regarding

the enactment of Ordinance 97-9-6." The council adopted

this Emergency Ordinance on October 6, 1997, to be effec-

tive immediately. Because the ordinance at issue is merely

suspended and not revoked, the court finds that Bayou Fleet's

challenge to the ordinance is not moot. Likewise, the

Emergency ordinance has no bearing on the resolution chal-

lenged herein, which remains scheduled to become effective

October 8, 1997.

The court addresses here only ‘the request for a

declaratory judgment and injunctive relief against the ordi-

nance and resolution. At a hearing held on September 30,

1997, this court consolidated the hearing on the request for a

preliminary injunction with the merits of the request for a

permanent injunction and declaratory relief. The court heard

testimony from three witnesses offered by Bayou Fleet:

Jerome Benoit, Project Manager for Ronald Adams; Chris

Tregre, Parish President; and Robin Durant, an owner of

‘Bayou Fleet. The defendants did not offer any witnesses or

documentary evidence.

Federal subject matterjurisdiction exists under 28

U.S.C. § 1331 and 1343(a)(3) as this action arises under 42

U.S.C. § 1983.

I. Facts

Bayou Fleet engages in barge and vessel repair, as

well as the ownership and operation of sand pits located

along the right descending bank of the Mississippi River in

Hahnville, Louisiana located in St. Charles Parish. Bayou

Fleet has been in operation for about 50 years. Bayou Fleet

A-27

accesses its property by crossitig the Mississippi River levee.

The present controversy began in 1997 when Ronald

Adams Contractors, Inc. ("Ronald Adams") received a con-

tract on a federally-funded road construction project. Ronald

Adams contacted Bayou Fleet to negotiate an agreement to

lease its sand pits and fill them with approximately

750,000.00 cubic yards of sand to be used in connection with

the road construction project. Neal Clulee approached

Ronald Adams and attempted to persuade it to let Home

Place be the supplier of the sand. Ronald Adams' business

records reflect that Clulee told the Ronald Adams Operations

Manager that "if [Ronald Adams] used his sand, he could

keep authorities ‘satisfied’ (Sheriffs Dept., Weight Units,

etc.). He left the ‘rest’ unsaid (if we don' t use him) Ronald

Adams chose to do business with Bayou Fleet.

Thereafter, Ronald Adams sought and obtained a per-

mit to improve the levee crossing at Bayou Fleet's property.

It then applied for a permit to cross the levee. At that point,

Alexander challenged Bayou Fleet's non-conforming status

on the ground that it had lost that status by non-use. In this

context, "non-conforming status" refers to when a business is

exempted from compliance with a zoning regulation based

on its continuous use (meaning without a break in use greater

than six months) of the property after the zoning

regulation is enacted, even though its use would be in viola-

tion of the new regulation. If Bayou Fleet were determined

to have lost its non-conforming status, Bayou Fleet, as well

as its customers like Ronald Adams, would not be able to use

its sand pits. Home Place would then be the only sand pit in

town.

A-28

The St. Charles Parish Attorney reviewed affidavits

from truck drivers who hauled sand out of Bayou Fleet's

sand pits, records of sale, and photos. He issued an opinion

letter dated May 21, 1997 to the Coastal Zone Management

Authority that there has been continuous use of Bayou

Fleet's sand pits and that Bayou Fleet has not lost its non-

conforming status.

Next, Bayou Fleet received in the mail a "Public

Notice” for a meeting to be held on May 29, 1997 before the

Coastal Zone Advisory Committee concerning "Bayou Fleet

sand pits" "to consider an application by Ronald Adams

Contractor to reopen and operate the existing sandpits in

_ Hahnville." Notices for Coastal Advisory Committee meet-

ings are normally issued by the Council Secretary on official

Council stationary; this notice was not. The notice was

signed by Alexander and included his home and business

phone numbers, as well a personal comment from him

encouraging people to attend or discuss the matter with him.

At the Coastal Zone Advisory Committee meeting,

Alexander introduced a resolution which was adopted by the

Council to offer a letter of objection to the United States

Army Corps of Engineers protesting Ronald Adams’ appli-

cation for a permit to dredge and fill Bayou Fleet's sand pits.

The Corps of Engineers issued‘the permit notwithstanding

the Council's objection.

On July 1, 1997, Alexander appeared at a meeting of

the Lafourche Basin Levee District Board ("Levee Board")

and asked them to deny a permit for Ronald Adams to cross

the Mississippi River levee and to stockpile sand in Bayou

A-29

Fleet's pits. Alexander threatened the Levee Board that if

they did not vote his way, he would recommend to the

Council that $1.5 million be withdrawn from their funding.

Nevertheless, the Levee Board voted in favor of issuing the

permit. After the meeting, when Bayou Fleet's owner Robin

Durant told Alexander that he did not enjoy immunity for his

actions at a Levee Board meeting, Alexander said, "I'm going

to get you.”

A week later on July 7, 1997, at a meeting of the

Council, Alexander asked the Council to deviate from its

published agenda to include a resolution for the St. Charles

Parish Tax Collection Department to conduct a sales tax

audit of Bayou Fleet's sand pit operations and to hold in

abeyance the issuance of any sand-pit permits to Bayou Fleet

until completion of the audit. Alexander's proposal to deviate

from the agenda did not pass, and consequently, his resolu-

tion was not considered. Nevertheless, on July 30, 1997,

Bayou Fleet received a notice of a sales tax audit, which was

subsequently performed for the tax years 1994 through 1996

on all of Bayou Fleet's operations. All sales and sales taxes

were found to be proper except for a minimum amount of

sales taxes found to be owed where some out-of-state com-

panies had failed to charge Bayou Fleet sales tax on cata-

logue purchases it had made.

Bayou Fleet filed this lawsuit on July 14, 1997.

At the next Council meeting on September 8, 1997,

Alexander proposed the ordinance and resolution at issue

here. The official agenda for the September 8 Council meet-

ing lists a resolution described simply as "Special Legal

A-30

Counsel (Councilman Alexander." The ordinance made it a

criminal act punishable by a fine not exceeding $500.00

and/or imprisonment not to exceed six months for

any person, firm or corporation to operate any busi-

ness, or perform any work on or across or use any

portion of the Mississippi River levee in the course

of the performance of its work without the express

written approval of the St. Charles Parish Council.

The resolution called for the appointment of a

"Special Legal Counsel” to determine whether Bayou Fleet

had lost the non-conforming status of its property. The reso-

lution acknowledged the opinion of the Parish Attorney that

Bayou Fleet has maintained its non-conforming status, yet

concluded without reaon that it is "in the best interest of the

Parish Council and residents of St. Charles Parish to employ

Special Legal Counsel to conduct a thorough investigation of

“whether or not Bayou Fleet has had a sand pit operation

' continuously for the past twelve months on property located

on the Mississippi River batture in Hahnville” in the course

of which investigation the Special Legal Counsel may "sub-

poena the business records of Bayou Fleet."

At the hearing on the resolution, Alexander made a

specific request to appoint Joel Chaisson as the Special Legal

Counsel to investigate Bayou Fleet. Chaisson had attended

the earlier Coastal Zone Advisory Committee meeting as the

legal representative of Home Place. In addition, Chaisson

has acted in a role adversarial to Bayou Fleet in prior litiga-

tion. As of the date of this court's hearing, no one had been

named as Special Legal Counsel.

A-31

The Council voted to adopt both the ordinance and

resolution, Bayou Fleet did not receive adequate notice of

the proposed resolution and did not attend the September 8,

1997 hearing.

The Parish President Chris Tregre vetoed both meas-

ures on September 11, 1997. He provided the Council with

detailed legal grounds for the vetoes which include some of

the same constitutional problems asserted in this lawsuit by

Bayou Fleet. He also provided an opinion letter from the

_ Parish Attorney explaining that the resolution exceeds the

police power granted to the Parish Council because it is an

attempt to override the authority of the State and its Levee

Board.

On September 22, 1997, the Council voted to over-

ride the vetoes.

On September 27, 1997, Bayou Fleet telefaxed a

request to the Council that it be permitted to cross over the

levee to attend to business. As of September 30, 1997; when

this court held its hearing, Bayou Fleet had received no

response from the Council.

II. Analysis

A. Section 1983

42 U.S.C. § 1983 provides remedies for deprivations

of constitutionally protected interests. See Baker _v.

McCollam, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3,

61 L.Ed.2d 433 (1979). Local governing bodies and local

officials in their official capacities can be sued under Section

A-32

1983 when a party can establish that he or she has suffered a

constitutional deprivation as a result of either "a policy state-

ment, ordinance, regulation, or decision officially adopted

and promulgated by that body's officers.” Monell v. Dept. of

Social Services, 436 U.S. 658, 690, 91, 98 S.Ct. 2018, 2036,

56 L.Ed.2d 611 (1978).

As there is no dispute that Alexander and the St.

Charles Parish Council acted under color of state law, the

remaining issue is whether the conduct complained of

deprived Bayou Fleet of its federal constitutional rights.

B. The Ordinance

/ 1. Police Power

It is not disputed that St. Charles Parish has the

authority to enact legislative measures in the exercise of its

lawful police powers .2

2 The Parish of St. Charles is a post-1974 home rule charter government

that adopted its charter pursuant to the terms of the 1974 Louisiana

Constitution, art. VI, § 5. Under the Louisiana Constitution, a local gov-

ernmental subdivision may adopt regulations for land use for public pur-

poses subject to uniform procedures established by law. La. Const. art. 6,

§ 17(D)(1). However, the Louisiana Constitution also recognizes that the

exercise of local police power may not abridge the police power of the

State, La. Const. art. 6, § 9, it must be exercised reasonably, and just

compensation must be provided for the taking of private property for

public purposes. La. Const. art. 1, § 4.

Louisiana statutory law expounds on the exercise of police

power:

For the purpose of promoting health, safety, morals, or the gen-

eral welfare of the community, the governing authority of all

A-33

2. Vagueness

Bayou Fleet contends that the ordinance is unconsti-

tutionally vague in violation of the procedural due process

guaranty of the Fourteenth Amendment to the United States

Constitution.

“(T]he void-for vagueness doctrine requires that a

penal statute define the criminal offense with sufficient defi-

niteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary

and discriminatory enforcement." Kolender v. Lawson, 461

U.S. 356, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).

It is a basic principle of due process that:

[A} zoning ordinance which contains no standard for

the uniform exercise of the power to grant or deny

applications for permits is unconstitutional. To be

constitutional, a zoning ordinance must be suffi-

ciently definite to notify citizens of their rights pur-

suant to the ordinance and must establish adequate

standards to govern officials with respect to the uni-

form treatment of applications for permits under the

ordinance.

Footnote 2 continued

re may regulate and restrict the ... use of ... land for

.. industry ... or other purposes; provided that zoning ordi-

nances enacted by the governing authority of municipalities ...

shall be subject to judicial review on the grounds of abuse of

discretion, unreasonable exercise of the police powers, an

excessive use of the power herein granted, or the denial of the

right of due process, provided, further, that the right of judicial

review of a zoning ordinance shall not be limited by the fore-

going.

A-34

See Morton v. Jefferson Parish Council, 419 So.2d 431, 434

(La. 1982)(citations omitted).

In this case, the ordinance provides for criminal

penalties. Where a penal enactment fails to provide minimal

guidelines for its application, the law may permit authorities

to use the statute to "pursue their personal predilections." See

Kolende, 103 S.Ct. at 1858.

The ordinance does not specify any procedure for

obtaining permission from the Council to work on, Cross, or

use the levy. No objective standards exist for obtaining per-

mission of the Council. An applicant has no way of knowing

what he must do in order to obtain the Council's permission.

In the absence of any criteria for a business to be approved

for a permit, granting or denying a permit is left solely to the

subjective opinions and unbridled discretion of the Council

members. Decisions may be made on whim or caprice or

other inappropriate basis. Both property and liberty interests

’ are at stake in this zoning ordinance. The court finds that the

ordinance is unconstitutionally vague.

Having found that the ordinance is void for vague-

ness, it is not necessary to address the other alleged constitu-

tional violations presented by this ordinance.

La. Rev. Stat. ann. § 33:4721. The St. Charles Parish Home Rule Charter

echoes these principles. See Article I; and Article III, Section A (7) (b)

A35_

C. Resolution

1. Force of Law

The Parish Charter provides that " [a] n act of the

Parish Council which is to have the force of law shall only

be enacted by ordinance." (Emphasis added) Charter, Article

IV, Section A. It also provides that "[a]n act of the Parish

Council which is not to have the force of law may be enact-

ed by resolution." (Emphasis added) Charter, Article IV,

Section H. It further provides that " [t]he Council shall cause

each ordinance and resolution having the force and effect of

law and each amendment to this Charter to be printed or oth-

erwise reproduced." Charter, Article IV, Section F(2).

The resolution was published in the Official Parish

Journal on October 1, 1997 as an official proceeding of the

St. Charles Parish Council. The resolution was re-printed and

at the bottom the following notice appears: “Resolution

approved and shall become law irrespective of the veto of the

Parish President."

Considering these facts, the court finds that "resolu-

tions" of the Council are not invariably without the force and

effect of law. Regardless of whether an act is called an "ordi-

nance" or a “resolution,” and notwithstanding the Charter

provision that an act which has the force of law shall only be

enacted by ordinance, the court finds that a resolution such

as the one in this case has the force of law if it is accorded

the same formalities as an ordinance and is published in the

official journal as “law.” See Little v. City of North Miami,

805 F.2d 962, 966-67 (11th Cir. 1986).

A-36

2. Equal Protection

Bayou Fleet contends that the resolution violates the

equal protection clause of the Fourteenth Amendment to the

United States Constitution because it singles out Bayou Fleet

for unique treatment from others in a similar position.

The equal protection clause requires that a state and

its subdivisions apply legislation and actions evenhandedly

to all persons similarly situated in a designated class.

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,

96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) . A violation of equal

protection does not require proof of a deprivation of life, lib-

erty, or property, and does not necessarily require that Bayou

Fleet belong to a particular group of individuals. Esmail v.

Macrane, 53 F.3d 176, 180 (7th Cir. 1995).

A violation of equal protection may be shown where

a person who is not a member of a particular group of indi-

‘viduals, is deliberately singled out for disparate treatment

from others similarly situated based on impermissible con-

siderations such as to punish the exercise of constitutional

rights or malicious or bad faith intent to injure. Esmail, 53

F.3d at 180; Rubinovitz v. Rogato, 60 F.3d 906, 909-10 (ist

Cir. 1995); LeClair v. Saunders, 627 F.2d 606, (2nd Cir.

1980). Such situations can create an illegitimate "class of

one." Esmail, 53 F.3d at 180 ("A class of one is likely to be

the most vulnerable of all").

The level of scrutiny to which the court subjects the

resolution depends on whether the resolution affects either a

suspect class or a fundamental right. If the challenged action

A-37

does not involve either of the two, it will be subject to the tra-

ditional standard of review which requires only that the

action bear some rational relationship to a legitimate pur-

pose. San Antonio Independent School Dist. v. Rodriguez,

411 U.S. 1, 40, 93 S.Ct. 1278, 1300, 36 L.Ed.2d 16 (1973) .

Where the differing treatment impinges upon a fundamental

right or disadvantages a suspect class, the governmental con-

duct is subject to a heightened level of scrutiny and will be

sustained only if "suitably tailored to serve a compelling

state interest." City of Cleburne, Texas v. Cleburne Living

Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d

313 (1985).

Bayou Fleet contends that the resolution treats it dif-

ferently from Home Place, which is a similarly situated busi-

ness, and is without a rational relationship to a legitimate

governmental purpose. Bayou Fleet contends that it is being

singled out for disparate treatment based on the filing of this

suit in violation of its First Amendment right to bring this

lawsuit, and for the malicious and arbitrary purpose of elim-

inating Bayou Fleet as a competitor of Home Place.

The evidence shows that Bayou Fleet and Home

Place are in the same business of leasing sand pits located on

batture property between the Mississippi River and its levee

in Hahnville, Louisiana. Indeed, their businesses are located

next to each other along the batture.

During the 1980’s, after a five-year period of inactiv-

_ ity at Home Place's sandpit (5-year old willow trees were

growing in the pit), Home Place's non-conforming status was

challenged by.a Council member, now Parish President.

A-38

The challenge failed, and Home Place was permitted to

resume operations. At no time was a resolution passed to

-- investigate Home Place's non-conforming status or subpoe-

na its business records. The Parish President testified that the

Council's resolution to investigate and subpoena Bayou

Fleet's business records is an unprecedented action which the

Council is not empowered to take.

/

The court finds that Bayou Fleet has shown that it has

been singled out for disparate treatment from others similar-

ly situated.

The resolution implicates both a fundamental right

and a nonsuspect class.

In filing this lawsuit, Bayou Fleet engaged in a "form

of political expression" entitled to First and Fourteenth

Amendment protection. In re Primus, 436 U.S. 412, 428, 98

. §.Ct. 1893, 1902, 56 L.Ed.2d 417 (1978). This protection

forbids the imposition of retaliatory sanctions designed to

punish the legitimate exercise of First Amendment rights.

Perry _v, Sindermanfi, 408 U.S. 593, 598, 92 S.Ct. 2694,

2698, 33 L.Ed.2d 570 (1972); Hall v. Sutton, 755 F.2d 786,

787 (llth Cir. 1985); Muir _v. Alabama Educational

Television Comm., 688 F.2d 1033, 1037 (Sth Cir. 1982), cert.

denied, 460 U.S. 1023, 103 S.Ct. 1274, 75 L.Ed.2d 495

(1983). A municipality, like any state governmental entity,

may not retaliate against an individual because of that per-

son's legitimate use of the courts. See Hall, 755 F.2d at 787.

The evidence shows that Bayou Fleet's sand pit has

A-39

been in continuous operation for many years, The evidence

further shows that since Home Place lost the Ronald Adams’

contract to Bayou Fleet, Council member Alexander has

relentlessly attempted to prevent Bayou Fleet from operating

its sand pit by challenging its non-conforming status, by

opposing issuance of a permit from the Army Corps of

Engineers, and by opposing issuance of a permit from the

Levee District. He threatened the Levee District with with-

drawal of $1.5 million in funding if they did not vote his

way. After that, Alexander threatened Bayou Fleet's owner

that he would "get him." He then attempted, unsuccessfully,

to have the Council amend it agenda to address a proposed

sales tax audit of Bayou Fleet and to stay any sand-pit per-

mits. Bayou Fleet had no notice of this proposal. Bayou Fleet

filed this lawsuit one week later. Two ) weeks after filing suit,

Bayou Fleet received a tax audit notice, notwithstanding the

Council's refusal to take up the issue at its July 7 meeting. At

the next Council meeting, Alexander proposed the resolution

at issue here. He also proposed that Home Place's attorney

Joel Chaisson be appointed to investigate Bayou Flet. At no

time did Alexander or the Council provide adequate notice to

Bayou Fleet of the proposed resolution.

Of course, an official's dogged opposition to a partic-

ular company's operations does not in itself establish that the

official's proposed enactments are based on federally imper-

missible considerations. In this case however, the record

does not establish any legitimate basis for Alexander's

actions.

There is no evidence before the court that Bayou

Fleet's operations have caused any problems in the commu-

A-40

nity. Robin Durant's uncontradicted testimony establishes

that the resolution was part of the scheme to eliminate Bayou

Fleet's business so that Home Place would be the only sand

pit in town. The court can discern no legitimate reason for

this treatment. There is no evidence before the court that

Bayou Fleet's operations have caused any problems in the

community.

The resolution itself provides no compelling or

rational basis for its enactment. The resolution acknowledges

that the Parish Attorney rendered a legal opinion that Bayou

Fleet has maintained its property's non-conforming status,

yet concludes without explanation that a Special Legal

Counsel should be hired and bestowed with subpoena power

to conduct an investigation of Bayou Fleet's non-conforming

status.

The evidence shows that the Parish Counsel conduct-

ed a thorough investigation of Bayou Fleet's property use,

including examination of three years of documentation. The

evidence supports the Parish Counsel's conclusion that

Bayou Fleet did not lose its non-conforming status. The

defendants offered no evidence or argument to show why

another investigation through a specially appointed legal

counsel is warranted.

The court finds based on the events leading up to the

proposal of this resolution, that Bayou Fleet has been target-

ed for disparate treatment maliciously and arbitraily

designed to put Bayou Fleet out of business. The uncontest-

ed evidence of repeated failure to provide Bayou Fleet ade-

quate notice of proceedings, Alexander's verbal threat to

A-41

the Levee District, his unsuccessful proposal for a sales tax

audit immediately followed by a sales tax audit, and his pro-

posal that Home Place's attorney be appointed as the Special

Legal Counsel to investigate Bayou Fleet, support finding

that the resolution was proposed in retaliation for the filing

of this suit, and with a bad faith intent to injure Bayou Fleet.

Equal protection does not require government to treat

all identically situated individuals identically, but prohibits

unequal treatment which is solely the result of vindictive-

ness. Esmail, 53 F.3d at 179. “[T]he rational relation test will

not sustain conduct by state officials that is malicious, irra-

tional, or plainly arbitrary." Lockary v. Kayfetz, 917 F.2d

1156, 1155 (Sth Cir. 1990). Accordingly, the court finds nei-

ther a compelling nor a rational basis for the resolution. As a

result, the court finds the resolution violates the equal pro-

tection clause of the Fourteenth Amendment to the United

States Constitution. Accordingly, it is not necessary to

address Bayou Fleet's other constitutional challenges.

3. Ultra Vires

The provisions of the Home Rule Charter do not per-

mit the action taken by the Council to subpoena and investi-

gate a business.

Article III, Section A (7)(c)(iv) provides that:

Without limitation of the foregoing authority or other

powers given to it by the Charter, the Council may:

iv. Make investigation of Parish affairs and make

A-42

inquiries into the conduct of any department, office,

agency or special district of the Parish, including the

investigation of the accounts, records and transac-

tions of the department, office, agency or special dis-

trict; and for the purpose of investigation, subpoena

witnesses, administer oaths, take testimony and

require the production of books, papers and other

evidence; and any person who fails or refuses to

obey any lawful order of the Council shall, upon

conviction, be punished in such manner as the °

Council shall fix by ordinance.

Thus, the Council's authority to conduct investigations is

limited to governmental matters, and does not include the

power to investigate private individuals. Likewise, the acts

authorized for enactment by resolution do not include the

power to conduct investigations.

Article IV, Section H provides:

An act of the Parish Council which is not to have the

force of law may be enacted by resolution. Acts

which may be adopted by resolution shall include but

shall not be limited to one which:

1. Establishes a commemorative day, week,

month or year;

2. Authorizes a person to sign or execute on behalf

of the Parish Council a contract which has been pre-

viously approved;

3. Authorizes a person to execute, sign or counter-

sign a check or draft on an account of the Parish

Council;

A-43

4. Declares a statement of public policy of

the Parish Council.

The appointment of a Special Counsel to conduct an investi-

gation and subpoena Bayou Fleet's records is an act well-

beyond the administrative and ministerial nature of the acts

authorized to be enacted by resolution.

ates III. Conclusion

The court finds and declares that the ordinance is

void for vagueness, and that the resolution violates the equal

protection clause of the Fourteenth Amendment to the

United States and was enacted without authority.

A declaratory judgment may give rise to injunctive

relief in order to effectuate the remedy. 28 U.S.C. § 2202.

Although this court may issue an injunction against the

defendants and all officials who seek to enforce the uncon-

stitutional provisions, the court will not entertain such a rem-

edy at this time. Declaratory relief is a responsible alterna-

tive to the strong remedy of an injunction. The court antici-

pates that it will be respected. See Poe v. Gerstein , 417 U.S.

281, 94 S.Ct. 2247, 41 L.Ed.2d 70 (1974).

Accordingly,

IT IS ORDERED that the court hereby declares St.

Charles Parish Ordinance No. 97-9-6 and St. Charles Parish

Ordinance No. 4416 unconstitutional for the reasons set forth

herein.

A-44

The plaintiffs’ request for injunctive relief is hereby

denied without prejudice.

New Orleans, Louisiana this 7th day of October,

1997.

/s/ Henry A. Meniz

UNITED STATES DISTRICT JUDGE

A-45

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Filed SEP 29, 1999

(

BAYOU FLEET, INC. CIVIL ACTION

VERSUS NO. 97-2205

ELLIS A. ALEXANDER, SECTION "1" (1)

INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS A MEMBER OF THE

ST. CHARLES PARISH

COUNCIL, ET AL.

MEMORANDUM OPINION

Plaintiff Bayou Fleet, Inc. filed this action for mone-

tary, injunctive, and declaratory relief alleging civil rights

violations under 42 U.S.C. § 1983, antitrust violations under

the Sherman Act, 15 U.S.C. §§ 1 and 2, and state law viola-

tions of the Louisiana Unfair Trade Practices Act, La. Rev.

Stat. ann. § 15:1401, et seq. Bayou Fleet named as defen-

dants, Ellis Alexander, individually and as a member of the

St. Charles Parish Council, St. Charles Parish, Coregis

Insurance Company, Neal Clulee ("Clulee") and his wife

Mary Clulee (referred to herein jointly as "the Clulees"), and

two companies owned by the Clulees, Homeplace Batture

DATE OF ENTRY SEP 3 0 1999

A-46

Leasing, Inc. ("Homeplace") and NIC Materials, Inc.!

Bayou Fleet claims that Alexander and the Clulee

defendants acted jointly and in conspiracy to put Bayou Fleet

out of business through a series of arbitrary and capricious

zoning challenges, permit challenges, and a sales tax audit

which render them liable under section 1983 for violation of

its rights to due process and equal protection of the law under

the Fourteenth Amendment, and under the Sherman Act for

conspiring and attempting to restrain trade and monopolize

the river sand business. Bayou also claims that after it filed

the present lawsuit, Alexander and the Clulee defendants

continued to act jointly and in conspiracy to put Bayou Fleet

out of business by adopting a criminal ordinance referred to

herein as the "Levee Law," and the adoption of a resolution

to appoint a "Special Legal Counsel" to determine whether

Bayou Fleet had lost the non-conforming status of its prop-

erty in violation of the same constitutional and statutgry pro-

visions above, as well as its First Amendment right of access

to the courts. Bayou Fleet claims damages for loss of income

due to delays in the permitting process allegedly caused by

the conspirators, treble damages, attorney fees, and punitive

damages.

After a trial on the merits of Bayou Fleet's request for

a preliminary and permanent_injunction, this court declared

the Levee Law ordinance and the resolution to appoint

Special Legal Counsel unconstitutional. See Bayou Fleet,

Inc. v. Alexander, 1997 WL 625492 (E.D. La. Oct. 7, 1997).

| Neal Clulee, Mary Clulee, Homeplace Batture Leasing, Inc. and N/C

Materials, Inc. are referred to herein, in globo, as the "Clulee

dants.” '

A-47

The Parish Council subsequently voted to rescind the ordi-

nance and resolution. Shortly before trial of the defendants’

liability, Bayou Fleet settled its dispute with Alexander, St.

Charles Parish, and Coregis Insurance Company. The

remaining issues before the court are the liability of the

Clulee defendants for the alleged violations of antitrust, civil

rights, and state unfair trade practice laws and damages, if

any.

FACTS

Plaintiff Bayou Fleet owns and operates sand pits

located on the batture along the right descending bank of the

Mississippi River in Hahnville, Louisiana, in St. Charles

Parish. Bayou Fleet is a family-owned company represented

at trial by one of the family members, Robin Durant.

Defendants Homeplace and NIC Materials are also

family-owned companies in the sand pit business. Neal and

Mary Clulee are the owners of Homeplace and NIC

Materials. Homeplace owns a sand pit on the batture just

down river from Bayou Fleet. Homeplace leases in part to

NIC Materials, which handles the sales and trucking of the

sand.

In 1981, Bayou Fleet's sand pit and the sand pit now

owned by Homeplace were zoned B-1, which did not permit

the operation of sand pits. Because both sand pits were in

operation prior to the creation of that zoning classification,

the sand pits were grandfathered to allow continued opera-

tions as a non-conforming use, provided that the sand pit

activities were not suspended for a period of six months.

A-48

Bayou Fleet and the Clulee defendants are competi-

tors in the sand business. They are the only active sand pit

businesses in the greater Hahnville area. In between Bayou

Fleet's and Homeplace's sand pits is a non-operating sand pit

owned by the Giambelluca family. The sand pits are adjacent

to residential areas of Hahnville. Two other sand pit busi-

nesses operate in the same market, but in the nearby town of

Waggaman, Louisiana.

The Durants and the Clulees have a history of litiga-

tion over the years, as described below. The present contro-

versy began in 1997 when Ronald Adams Contractors, Inc.

("RAC") obtained a Louisiana road construction contract

which required a source of approximately 750,000 cubic

yards of river sand for the job. The following is a chronolo-

gy of the facts of what occurred when RAC undertook to

acquire the sand.

RAC wanted to source its own sand by dredging the

Mississippi River and stockpiling it in a sand pit. RAC

sought quotes from Clulee and Durant to use their sand pits

to stockpile the sand and haul out as needed for the project.

RAC ultimately decided to use the Durant/Bayou Fleet sand

pits.

In order to dredge sand from the Mississippi River,

___RAC had to obtain a permit from the U. S. Army Department

Corps of Engineers. A permit is also needed from the

Lafourche Basin Levee District Board of Commissioners

(hereinafter "Levee Board") to operate a

A-49

sand pit, meaning pumping, stockpiling, and hauling sand

across the levee. A permit to operate Bayou Fleet's sand pit

was held by a company called Vulcan, which offered to name

RAC as licensee. RAC declined because it wanted all per-

mits in its own name. If the Levee Board denies a permit to

~ operate, the Corps of Engineers is required by regulation to

deny a permit to dredge.

RAC started the permitting process in March, 1997.

By resolution adopted April 3, 1997, the Levee Board issued

a permit to RAC to make improvements to the levee cross-

ing to Bayou Fleet's sand pits. On April 4, 1997, RAC sub-

mitted an application to the Corps of Engineers for a permit

to dredge the Mississippi River. About this same time, it

became apparent that there were neighborhood concerns

about the project. The Corps of Engineers’ file shows a flur-

ry of complaints during this period from residents opposing

the RAC permit. The evidence established that sand pit oper-

ations in general can cause public health problems from air

pollution and safety risks, as well as nuisances to neighbors.

Andrew Courreges, RAC's operations manager, and

Durant met with Alexander at Durant's office to assure him

that they would make a good effort to abate potential prob-

lems for the community. Durant told Alexander that his pit

was in operation and permitted. Alexander indicated that he

would support the project.

Telephone records show a one-minute phone call

A-50

from Clulee's home to Alexander's home on April 28, 1997.2

Clulee recalls speaking with Alexander during this period

about the status of Bayou Fleet's non-conforming use and the

RAC permits. On approximately the same date, Alexander

telephoned the Director of the Department of Planning &

Zoning (“P & Z”’), Earl Matherne, to advise him of his con-

stituents’ objection to the operation of Bayou Fleet's sand

pits. He also advised Matherne that the residents were will-

ing to testify that Bayou Fleet's sand pits had lost their non-

conforming use because they had been shut-down for more |

than six months.

In response, Matherne advised RAC that it might

have zoning problems with using Bayou Fleet's sand pits. On

May 5, 1997, Matherne requested a legal opinion from

Randy Lewis, Parish Attorney, regarding whether Bayou

Fleet had lost it's nonconforming use by abandonment.

Lewis investigated the issue, including reviewing documents

voluntarily produced by Bayou Fleet, such as sales records

and affidavits from truck haulers.

If Bayou Fleet had lost its non-conforming use, RAC

would either have to use a different sand pit, or Bayou Fleet

would have to try to get Bayou Fleet's property re-zoned.

On May 17, 1997, Courreges set up a meeting

between himself, another RAC employee, and Clulee, to dis-

cuss purchasing sand from Homeplace's pit. They discussed

2 The court finds that none of the one-minute phone calls in this case

involved any conversation, but show only that a call was made where an

answering machine picked up.

A-51

the particulars of Clulee's bid. Courreges mentioned that he

had received a letter in which Clulee questioned the project.

Clulee explained that his only problem with the project was —

RAC's proposed dredging in front of his property. Courreges

felt that Clulee seemed to have a lot of knowledge about the

progress of RAC's permit applications. Clulee told

Courreges that if RAC used his sand "he could keep local

authorities ‘satisfied’ (sheriff's dept., weigh units, etc.) and

"left the ‘rest’ unsaid if [RAC did] not use him."3

RAC decided to stick with Bayou Fleet.

On May 21, 1997, the Parish Attornev issued his

opinion letter that Bayou Fleet had not lost its non-conform-

ing use. Alexander disagreed with that opinion.

The St. Charles Parish Coastal Zone Advisory

Committee (hereinafter nCZACII), an eight-member com-

mittee that makes recommendations to the Parish Council.

on wetlands and environmentally- related permit applica-

tions within the Parish, had on its May 29, 1997 agenda, inter

alia, the RAC permit application before the Corps of

Engineers. The CZAC was to decide whether to recommend

to the Parish Council that it submit a letter of objection or no

objection to the Corps. Alexander prepared and mailed to

everyone in the immediate area of the Bayou Fleet sand pits

a notice of that meeting. The CZAC published an official

notice as well.

3 The quoted language is from a sununary of the conversation made by

Courreges on an RAC “Standard Conversation Form.”

Bayou Fleet received a copy of Alexander's notice.

Durant was surprised by it because his prior meeting with

Alexander led him to believe that Alexander would support

the RAC project.

Alexander asked Clulee to attend the CZAC hearing,

but he could not attend, so Clulee had his attorney Joel T.

Chaisson (a retired state district court judge), attend on

behalf of Homeplace. Alexander, Chaisson, and seven mem-

bers of the public spoke in opposition to the project, their

main concerns being dust, noise, increased industrial traffic

on a substandard roadway, and the sand pits, alleged loss of

its non-conforming use. The citizens also presented a peti-

tion with forty signatures against "the reopening of sand pits

in Hahnville.” There is nothing unusual about members of

the public or Parish Council members presenting their views

at a CZAC meeting. CZAC meetings are televised. Durant

did not attend the hearing.

Phone records establish that on the day of the CZAC

hearing, there were two phone calls from Clulee's home to

Alexander's home -- one for eight minutes and another for 12

minutes. ~

On May 30, 1997, the CZAC issued a recommenda-

tion to the Parish Council that a letter of no objection be

issued to all concerned agtncies.

On the same date, Mary Clulee wrote a letter on

behalf of Homeplace to the Corps of Engineers objecting to

RAC's permit application "on the basis that their proposed

A-53

dredging area extended the entire length of our property.”

She further stated: "I feel that there is enough dredging area

in the immediate area frontage fill of their site."

At the regularly scheduled June 2, 1997 meeting of the

Parish Council, Alexander introduced a resolution calling for

the Parish to issue a letter of objection to the Corps of

Engineers based on concerns of air pollution and its effects

on persons with medical problems such as asthma and

emphysema, industrial congestion, noise, and dangers to

children playing in the unfenced sand pits. Alternatively, the

resolution requested the Corps. to stipulate conditions for

issuance of the permit that would ease neighborhood con-

cerns.5 One of the alternative conditions was for the trucks

to drive behind the levee and exit at Homeplace's ramp to

avoid driving along the river road near the residential areas.

Because no such road existed, Durant believed that this con-

dition was a subterfuge to block the deal with RAC. This

resolution in effect would reject the recommendation of the

CZAC that the Parish issue a letter of no objection. The

Parish Council voted with one dissent to adopt

4 A child had been killed at Bayou Fleet's property while tunneling into

sand piles.

5 Such as: limiting operations to daylight hours, requiring level truck

loads and covered truck beds, limiting the height of the stockpiles to the

height of the levee, wetting ramps three times a day, fencing the stock-

pile, installing asphalt ramps over the levee, lowering the speed limit to

25 mph, installation of truck crossing signs, requiring sand hauling trucks

to access the pits by traveling behind the levee.

A-54

Alexander's resolution of objection. Durant attended this

meeting; the Clulees did not.

After the May 29 CZAC meeting and prior to the

June 2 Parish Council meeting, there were four phone calls

from the Clulee's home to Alexander's home -- two for one

minute each, one for nine minutes, and one for seven minutes

-- for a total talk time of 16 minutes.

By letters dated June 4, 1997, Alexander forwarded

the Parish Council's objection to Senators Mary Landrieu

and John Breaux asking for their support of the citizens’

opposition to the RAC permit application before the Corps

of Engineers. Both Senators responded by asking the Corps

of Engineers to provide them with information about the

project.

By letters dated June 5 and 6, 1997, Alexander

requested P & Z and Chris Tregre, the Parish President, to

advise him of the status of Bayou Fleet's non-conforming

use.

By letters dated June 5 and 6, 1997, Alexander

informed the Levee Board of the Parish Council's resolution

to object. Alexander requested the Levee Board to rescind its

prior permit for RAC to make improvements to Bayou

Fleet's levee crossing and to deny RAC's pending operations

permit application based on the harmful impact of the pro-

posed operations on the residential community.

After considering the opposition Alexander present-

ed, the Levee Board voted on June 5, 1997, to deny RAC an

A-55

operations permit -- (a permit to pump, stockpile, load, and

haul sand over the levee). Alexander promptly informed the

Corps of Engineers of the Levee Board's decision. Because

the Levee Board's denial meant automatic denial of a dredg-

ing permit from the Corps of Engineers, RAC requested the

Corps to postpone decision on his application until he had a

chance to defend his permit application before the Levee

Board.

In the meantime, Durant had a friend, who was a fra-

ternity brother of U.S. Congressman Robert Livingston,

write to the Congressman to help expedite the Corps of

Engineers’ permit process. Livingston did write a letter to the

Corps on June 24, 1997, but later in September, 1997 (after

the Corps had granted the permit) withdrew his letter as he

realized that the matter was not within his district, but the

district of Congressman William J. Tauzin.

RAC wrote to Homeplace/Mary Clulee on June 27,

1997, assuring her that it did not intend to dredge in front of

Homeplace's property.

On July 1, 1997, RAC and Durant attended a second

meeting of the Levee Board and obtained a reversal of its

decision to deny the operation permit. Alexander was also

present. After the meeting, Alexander and Durant had a heat-

ed exchange. Durant informed Alexander that he did not

have any immunity for his actions before the Levee Board;

Alexander replied: “I’m going to get you. The Clulees did

not attend this meeting.

6 This operations permit was the same kind held by Vulcan which RAC

chose not to operate under.

A-56

After the June 2, 1997 meeting of the Parish Council

and prior to the July 1, 1997 meeting of the Levee Board,

there were two phone calls from the Clulee's home to

Alexander's home -- one for one minute and one for six min-

utes -- for a total talk time of six minutes.

On July 3, 1997, Mary Clulee wrote a second letter

on behalf of Homeplace to the Corps of Engineers asking

that RAC amend the drawings of its proposed dredging area

in accordance with its letter to her that it would not dredge

the area next to her property.

At the July 7, 1997 meeting of the Parish Council,

Alexander proposed a resolution to have a sales tax audit

performed on Bayou Fleet. The resolution was rejected.

Two days before that Parish Council meeting there

was a Six minute phone call from the Clulee's home to

Alexander's home.

Bayou Fleet filed the present lawsuit on July 14,

1997.

Despite the Parish Council's rejection of Alexander's

proposed sales tax audit resolution, Alexander spoke to the

head of St. Charles Parish Tax Collection Department, R.J.

Lorio, about Bayou Fleet's payment of sales taxes. On July

30, 1997, Lorio issued notice of a sales and use tax audit to

Bayou Fleet. Bayou Fleet cooperated with the audit, which

did not result in any citations for failure to pay taxes.

After the July 7, 1997 meeting of the Parish Council

\ A-57

and before the July 30, 1997 tax audit notice, there were two

one-minute phone calls from the Clulee's home to

Alexander's home.

The Corps of Engineers issued a dredging permit to

RAC on July 21, 1997, under four months from the date of

application. This would have been the last permit RAC need-

ed to begin operations at Bayou Fleet, but P & Z in discus-

sions with the Parish President, who was historically

opposed to sand pit operations, raised questions about and

ultimately determined that RAC would have to apply for a

"Change of Occupancy” permit for the Bayou Fleet site. No

one challenged this permit, which was issued on September

22, 1997. No more permits were required in order for RAC

to begin operations.

There is no evidence that the Clulee defendants or

Alexander played any role in P & Z's decision to require this

permit or in the length of time it took to obtain the permit.

The evidence that on August 15, 1997, an unsigned, form

affidavit was telefaxed between the Chaisson and Chaisson

law firm and Alexander's home does not show that the Clulee

defendants or Alexander were involved in the Change of

Occupancy permit. The affidavit related to the issue of

Bayou Fleet's non-conforming use and was to be used by res-

idents in the immediate area of the sand pits who believed

that Bayou Fleet's sand pits had ceased operations for a peri-

od of time. No one ever signed the affidavit, nor is there any

evidence that Alexander or the Clulee defendants

A-58

ever attempted to have any on sign the affidavit.”

Alexander introduced the Levee Law ordinance and

the Special Legal Counsel resolution at the September 8,

1997 meeting of the Parish Council. The Levee Law would

have made it a criminal offense for any person to cross over

the levee without written permission of the Parish Council.

The resolution acknowledged the opinion of the Parish

Attorney that Bayou Fleet had maintained its non-conform-

ing use, yet concluded without explanation that “it is in the

best interest of the Parish Council and residents of St.

Charles Parish to employ Special Legal Counsel to conduct

a thorough investigation” of "whether or not Bayou Fleet has

had a sand pit operation continuously for the past twelve

months on property located on the Mississippi batture in

Hahnville.” The resolution empowered the Special Legal

Counsel to “subpoena the business records of Bayou Fleet."

Alexander requested that Joel Chaisson, counsel for

Homeplace, be selected to serve as Special Legal Counsel.

Notice of these proposed acts was published in the

local newspaper. The notice of the Special Legal Counsel

resolution did not mention that it was directed at Bayou

Fleet. Bayou Fleet did not have adequate notice of the pro-

posed resolution. Neither Bayou Fleet, nor the Clulee defen-

dants attended the September 8, 1997 Parish Council meet-

ing.

The Parish Council voted to adopt both the ordinance

and the resolution, but the decision as to whom to

7 The affidavit was the second page of the fax transmission. Alexander

was not able to produce the first page of the fax in discovery, Typically,

the first page of a telefax is a cover sheet with only the name of the

sender, the sender's fax number, and the number of pages telefaxed. For

this reason and because the affidavit was never used, the court rejects

A-59

appoint as Special Legal Counsel was deferred Pending

receipt of a contract.

Parish President Chris Tregre vetoed both measures

on September 11, 1997 because he believed the Parish

Council had acted beyond its authority. On September 27,

1997, the Parish Council voted to override the vetoes, how-

ever, the acts never became law. After this court declared the

acts unconstitutional, the Parish Council voted to rescind

them.

After the July 30 tax audit letter and prior to the

September 8, 1997 meeting of the Parish Council, there were

5 phone calls from the Clulees’ home to Alexander's home -

- 4 one-minute calls and one 18 minute cali -- for a total talk

time of 18 minutes. Between September 8, 1997 and the

September 22, 1997 override vote, there were three phone

calls from the Clulees’' home to Alexander's home -- each for

one minute.

RAC wanted to place a small 6 by 6 foot guard house

on the property, which required a permit. The pendency of

this permit application did not prevent RAC from dredging

and stockpiling sand. There is no evidence that anyone chal-

lenged the issuance of this permit; however, P & Z did

request an opinion from the Parish Attorney as to whether the

shack would present an expansion of the non-conforming

use. There is no evidence that the Clulee defendants or

Alexander played any role in this permit process. Once the

Parish Attorney issued his opinion that it would have no

effect on their non-conforming use, and the Fire Marshall

approved the structure, P & Z issued RAC a permit on

October 16, 1997 to install the guard shack.

(foomote 7 continued) Bayou Fleet's argument that the absence of the first

page should create an adverse inference against the Clulee defendants.

A-60

RAC competed its project on time. The evidence

establishes that it took RAC approximately 110 days to

obtain the Corps of Engineers’ permit, and approximately six

months to obtain all permits necessary to commence opera-

tions. In comparison, when Homeplace applied for the same

kind of dredging permit from the Corps of Engineers in

January, 1998, it took over ten months to obtain the permit,

notwithstanding that the Parish Council unanimously adopt-

ed a resolution to issue a letter of no objection. Even con-

sidering the evidence that for two to three months the Clulees

delayed the process by failing to take any action on their per-

mit application, RAC's dredging permit application was

approved in far less time.

Neal Clulee made a total of 46 telephone calls from

his home to Alexander's home in 1997. The 1997 phone calls

commenced on April 28, 1997, admittedly because of RAC's

permit applications before the Corps of Engineers and the

Levee Board, and continued until December 30, 1997.

Twenty-eight of the 46 calls were one minute calls with no

conversation. Prior to this lawsuit being filed, the records

show seven phone conversations totaling 58 minutes

between Clulee and Alexander.

Clulee did not recall specific phone conversations.

He admitted discussing the RAC permits and his belief that

Bayou Fleet had lost its non-conforming use. He explained

that several calls were unrelated to Bayou Fleet and involved

matters such as resident complaints about his business oper-

ations, a diversion project in St. Charles Parish, and the

asphalt ramp the Parish required him to install. Clulee

8 Alexander abstained from voting.

A-61

recalled speaking with Alexander on other occasions about

the sand pit business in general. Alexander was trying to

educate himself about the operations and the permitting

process. Clulee thinks most of the phone calls were made as

a result of the lawsuit being filed against him and Alexander.

Indeed, there were only 15 phone calls totaling 58 minutes

prior to the lawsuit being filed; whereas there were 31 phone

calls totaling three hours and five minutes after the lawsuit

was filed. Some of the calls Clulee made were to return calls

initiated by Alexander to Clulee's beeper.

In addition to these permit and legislative processes,

the court considers the parties’ following history of litigation

as relevant to the claims herein.

In the 1984, one of the Durant family companies sued

Clulee personally to collect a debt and obtained a judgment

in excess of $100,000. Durant's company filed a lien on

Clulee's property and the sheriff foreclosed on Clulee's

home. Durant’s company purchased Clulee’s home at the

sale.

Also, in 1984, a dispute arose regarding the non-con-

forming use of the Clulees’ sand pit. Both Chris Tregre, a

Parish Council member at the time and now Parish President,

and the Durant family, tried to stop the pit operations on the

ground that the nonconforming use had been abandoned for

five years. Tregre was acting pursuant to his constituents’

opposition. Tregre attended hearings to voice his opposition

and spoke to the parish president about it. No legislative acts

such as the resolutions and ordinance at issue here were pro-

posed.

Another sand pit feud began in 1989 between the

Clulees and the Giambellucas, who owned the pit in

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between Bayou Fleet and Homeplace. The court takes judi-

cial notice of the facts of that dispute as set forth in

Giambelluca v. Parish of St. Charles, 687 So.2d 423 (La.

App. 5th Cir. 1996). Briefly, the dispute centered around the

use of a levee ramp that was the only access to the

Giambelluca property. After two lawsuits, one of which was

presided over by Joel Chaisson (now Homeplace’s attorney),

who ruled in favor of the Clulees, a Parish ordinance spon-

sored at the request of Clulee by Alexander, and destruction

of the ramp by Clulee, the Giambelluca property was left

without road access and was forced out of business. The

Giambelluca sand pit has been out of business ever since

Clulee had the ramp torn up, leaving Homeplace and Bayou

Fleet as the only sand pits operating in Hahnville.

Another sand pit lawsuit was brought by one of the

Durant family companies, LA Materials, to have the Clulee

sand pit closed based on loss of non-conforming use. LA

Materials withdrew the suit when the operating company,

Westside Sand, claimed that LA Materials was trying to

monopolize the sand business.

Bayou Fleet urges the court to impose an adverse

inference against the defendants because Mary Clulee, a will

call witness for the defense, did not testify. The Fifth Circuit

has described the adverse witness rule as an "archaism” for

which there is no longer any justification, particularly where

the witness could have been called by either party, as in the

present case. See Herbert v. Wal-Mart Stores, Inc., 911 F.2d

1044, 1048-49 (Sth Cir. 1990). In any event, the adverse wit-

ness rule is discretionary. See Evangeline Refining Co. v.

Charles N. Wooten, Lid., 890 F.2d 1312, 1320 (Sth Cir.

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1989). The court finds that Mary Clulee's testimony would

have offered no information that the court did not already

have before it. Her testimony likely would have been cumu-

lative to her husband's testimony. Moreover, the evidence

from all the witnesses failed to show that she was personal-

ly involved in any of the alleged violations. See id. (quoting

II J. Chadbourne, Wigmore on Evidence § 287) Mary Clulee

was present during the entire trial, and Bayou Fleet could

have called her as a witness. Finally, the court notes that

Bayou Fleet did not raise this issue at trial. Under the cir-

cumstances of this case, the court declines to invoke the

adverse witness rule.

ANALYSIS

A. Noerr-Pennington Doctrine

The Clulee defendants contend that they are immune

from liability pursuant to the Noerr-Pennington doctrine.?

See Eastern R.R. Presidents Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L.Ed.2d 464

(1961): United Mine Workers of America v. Pennington, 381

U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965). The doc-

trine, which was developed by the Supreme Court in the

9 The court may consider the Noerr-Pennington doctrine with respect to

the liability of the Clulee defendants even though they did not assert the

doctrine in their answer. The court raised the issue sua sponte a few

weeks prior to trial and ordered the parties to brief the issue. The Clulee

defendants then included the issue in the pre-trial order, over Bayou

Fleet's objection. It has been held that the Noerr-Pennington doctrine is

not an affirmative defense in the sense that it is the plaintiff's burden to

prove the substantive violation claimed, which cannot be done where the

defendant’s allegedly wrongful conduct consists of petitioning the

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context of antitrust law, has its underpinnings in First

Amendment principles that the right to petition the govern-

ment legislatively, judicially, or administratively is constitu-

tionally protected speech regardless of its motivation. Noerr,

365 U.S. at 138, 81 S. Ct. at 530; Pennington, 381 U.S. at

669-70, 85 St. Ct. at 1593. “The essence of the doctrine is

that parties who petition the government for government

action favorable to them cannot be prosecuted under the

antitrust laws even — their petitions are motivated by

anticompetitive intent.” Video Int’l Production v. Warner-

Amex Cable Communications, Inc., 858 F.2d 1075, 1082

(Sth Cir. 1988), cert. denied, 491 U.S. 906, 109 S.Ct. 3189,

105 L.Ed.2d 697 (1989).

Although the Noerr-Pennington doctrine was origi-

nally applied in the antitrust context, it has been applied to

protect First Amendment petitioning of the government from

claims brought under federal and state laws, including sec-

tion 1983. Id. at 1084. See e.g., Gorman Towers, Inc. V.

Bocloslavsky, 626 F.2d 607, 615 (8th Cir. 1980) (section

1983) (landowners, secret meetings with city officials and

Footnote 9 cont. ..government. See PrimeTime 24 Joint Venture v.

National Broadcasting Co., Inc., 2! F. Supp. 2d 350, 355 (S.D.NLY.

1998)(citing 1 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law §

207c (rev. ed. 1997)); See also McGuire Oil Co. v. Mapco, Inc., 958

F.2d.1552, 1558 n. 9 (11th Cir. 1992) (Citing Areeda and H.

Hovenkamp). Certainly, there would be no justification for the court to

reject application of the doctrine on a procedural error, where to do so

would abridge the defendant’s First Amendment rights. Here, where

Bayou Fleet was given adequate advance notice of the court’s intent to

consider the issue, and where the doctrine was asserted in the pre-trial

order, it is appropriate to consider the Noerr-Pennington doctrine as it

may apply in this case.

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petitioning for enactment of city ordinance to rezone plain-

tiffs property) (citing Sawmill Products, Inc. v. Town of

Cicero, 477 F.Supp. 636, 642 (N.D.IIl. 1979) (section 1983)

(protesting presence of plaintiff’s sawmill which was then

shut down by town ordinance) ; Weiss v. Willow Tree Civic

Ass'n, 467 F.Supp. 803, 816-18 (S.D.N.Y. 1979) (section

1983) (lobbying town officials and filing groundless judicial

and administrative complaints to oppose zoning permit);

Aknin v. Phillips, 404 F.Supp. 1150, 1153 (S.D.N.Y. 1975),

aff'd, 538 F.2d 307 (2d Cir. 1976) (section 1983) (urging

officials to enforce unconstitutionally vague noise ordinance

against plaintiffs discotheque); Sierra Club v. Butz, 349

F.Supp. 934, 938-39 (N.D.Cal. 1972) (contractual interfer-

ence) (filing lawsuit and administrative appeals to halt plain-

tiff’s logging operation; filings constitutionally privileged

even if motivated by malice)). Bayou Fleet's claims under

section 1983 and the LUTPA are all based on the same events

as the antitrust claims.

Bayou Fleet has accused the Clulee defendants of

lobbying and influencing state and federal officials in private

meetings, telephone calls, letters, and public hearings to

deny permits, revoke Bayou Fleet's non-conforming use, and

enact ordinances and resolutions, all designed to put Bayou

Fleet out of business. Pursuit of that goal using the adminis-

trative and legislative channels and procedures that the

Clulee defendants did was within their First Amendment

rights. Their actions are nothing more than protected First

Amendment activity to procure favorable government

actions. They have the right to advance their opinions to gov-

ernment officials about Bayou Fleet's or RAC's business,

whatever the underlying motive. Indeed, Bayou Fleet and

other Durant family companies have pursued similar actions

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against the Clulees such as filing objections to permits and a

lawsuit to declare a loss of non-conforming use. Bayou Fleet

made lobbying efforts of its own. Bayou Fleet had private

meetings with Alexander to get his support for the project; it

garnered support from a United States Congressman. This 1s

traditional political activity. The First Amendment protects

"attempts to influence the passage or enforcement of laws,”

no matter how harmful their incidental impact may be.

Noerr, 365 U.S. at 135, 81 S.Ct. at 528.

The sham exception to the Noerr-Pennington doc-

trine does not apply in this case. That exception applies when

a defendant uses "the governmental process -- as opposed to

the outcome of that process -- as an anticompetitive

weapon.” City of Columbia v. Omni Outdoor Advertising,

499 U.S. 365, 380, 111 S.Ct. 1344, 1354, 113 L.Ed.2d 382

(1991). Here, the Clulee defendants genuinely sought to

achieve the governmental measures for which they lobbied.

The sham exception does not apply to them because their

actions were designed to achieve the outcome of the

processes they used." Therefore, the petitioning of

10 Bayou Fleet alleged but did not prove that the Clulee defendants

abused the legislative process by bribing Alexander. There was some tes-

timony that council members heard rumors that Clulee had bribed

Alexander, but none of the witnesses were able to recall any specific

details such as from whom they had heard the rumor. Because of the

unreliability and prejudicial nature of this hearsay evidence, the court

denied Bayou Fleet's motion to introduce this evidence under Federal

Rule of Evidence 807. The court did allow the evidence as a proffer.

Even if the court were to have admitted the evidence, the court finds that

it would not carry any probative value because of its vagueness and unre-

liability. Furthermore, to the extent that Bayou Fleet contends that a cor-

rupt or illegal conspiracy existed, the Noerr- Pennington doctrine does not

recognize a conspiracy exception.

Outdoor Advertising, Inc., 499 U.S. at 382-83, 111 S.Ct. at 1355-56.

A-67

Alexander, the Parish Council, the CZAC, and the Corps of

Engineers was not a sham. See Allied Tube & Conduit Corp)

y. Indian Head, Inc., 486 U.S. 492, 500 n.4, 108 S.Ct. 1931,

1937 n. 4, 100 L. Ed. 2d 497 (1988) . Accordingly, the court

finds that the Clu!ee defendants have no liability under the

antitrust laws, section 1983, or the LUTPA because they are

protected by the Noerr-Pennington doctrine.

As alternative reasons for absolving the Clulee

defendants of any liability in this case, the court finds that

the evidence fails to establish essential elements of the sec-

tion 1983 and antitrust claims.

B. Section 1983

In a section 1983 action the plaintiff must establish

two essential elements: (1) that the conduct in question

deprived a person of rights, privileges, or immunities

secured by the Constitution or laws of the United States; and

(2) that the conduct complained of was committed by a per-

son acting under color of state law. See 42 U.S.C. § 1983;

Gomez vy. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64

L.Ed.2d 572 (1980).

The Clulee defendants are private persons who do

not occupy positions that can be considered actors "under

color of state law." A private person may be considered a

state actor under color of state law if the individual is

engaged in a conspiracy or willfully engages in joint activi-

ty with one or more parties acting under color of state law,

even if the state agent is immune to liability. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 1065, 26 L.Ed. 2d

142 (1970); Cinel_v. Connick, 15 F. 3d 1338, 1343 (Sth

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Cir. 1994), cert. denied , 513 U.S. 868, 115 S.Ct. 189, 130

L.Ed.2d 422 (1994). In this case, the state official whose

actions are implicated is Alexander. The parties stipulated

that all of Alexander's actions were under color of state law.

A civil conspiracy under section 1983 is an agree-

ment between private and public actors to violate the plain-

tiffs constitutional rights. Cinel, 15 F.3d at 1343. A conspir-

acy may be proven by circumstantial evidence, Mack v.

Newton, 737 F.2d 1343 (Sth Cir. 1984) ; however, the acts of

the alleged conspirators must show a “unity of purpose, com-

mon design, and understanding, or meeting of the minds in

an unlawful arrangement." Hale v. Townley, 19 F.3d 1068,

1075 (Sth Cir. 1994)(citing American Tobacco Co. v. U.S.,

328 U.S. 781, 66 S.Ct. 1125 (1946)).

"The joint action inquiry focuses on whether the state

has 'so far insinuated itself into a position of interdependence

with [the private entity] that it must be renege as a joint

participant in the challenged activity ... ” Gorenc v. Salt

River Project Agric, Improvement and Power Dist. , 869 F.2d

503, 507 (9th Cir. 1989) (quoting Burton v. Wilmington

Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L. Ed.

2d 45 (1961) ) . "A private party does not act under color of

state law when [he] merely elicits but does not join in an

exercise of official authority." Auster Oil & Gas, Inc. v.

Stream, 764 F.2d 381, 388 (Sth Cir. 1985) , cert. denied, 486

U.S. 848, 109 S.Ct. 129, 102 L.Ed.2d 102 (1988). “It is not

sufficient to allege that the [private and state] defendants

merely acted in concert or with a common goal. There must

be allegations that the defendants had directed themselves

towards an unconstitutional action by virtue of a mutual

understanding. Even were such allegations

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to be made, they must further be supported by some factual

allegations suggesting such a 'meeting of the minds’.” See

Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204,

1206 (7th Cir. 1980).

Initially, it must be noted that there is scant evidence

of personal involvement on the part of Mary Clulee,

Homeplace, and N/C Materials. Under section 1983 there

can be no liability, much less a conspiracy between individ-

uals that had no personal involvement in the allegedly

wrongful conduct. See Murphy v. Kellar, 950 F.2d 290, 292

(Sth Cir. 1992); Jacques v. Procunier, 801 F.2d 789, 793 (Sth

Cir. 1986). Individual liability under section 1983 must rest

on facts reflecting the defendant's personal participation or

involvement in the alleged wrong. The only evidence regard-

ing Mary Clulee is two letters she wrote on behalf of

Homeplace to the Corps of Engineers objecting to the permit

because of proposed dredging in front of her property. Her

letters show that she was not trying to prevent issuance of a

permit insofar as dredging in front of Bayou Fleet's proper-

ty, but only dredging that might occur in front of her proper-

ty. This evidence does not come close to establishing a con-

spiracy or joint action between her and Alexander. The only

other evidence specifically regarding Homeplace is its

appearance at the CZAC meeting through an attorney to

voice its objection to RAC's Corps of Engineers’ permit. As

for N/C Materials, the only evidence of action taken directly

by it is the quote for sand it gave to RAC. This evidence is

simply insufficient to establish a conspiracy between

Homeplace and/or N/C Materials and Alexander. See also

Scutieri v, Estate of Revitz, 683 F.Supp. 795, 800-01 (S.D.

Fla. 1988) (a private corporation is not vicariously liable

under § 1983 unless a policy-making individual takes action

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constituting "official policy” of the corporation).

Both Alexander and Clulee specifically denied the

existence of a conspiracy. Alexander indicated repeatedly at

hearings and in his letters that his motives were to represent

his constituents who had health and safety concerns about

the sand pit operations. The evidence established that there

are legitimate community concerns about sand pit opera-

tions.'' Based on those concerns, the council members are

historically opposed to sand pit operations. Clulee admitted

that he was motivated by a belief that Bayou Fleet had lost

its non-conforming use and by concern that there might be

dredging in front of his property, both obviously matters of

self-interest rather than community concerns. The fact that

Alexander and Clulee wanted the same objective, that is, to

prevent sand pit operatians at Bayou Fleet, does not establish

an agreement or joint action to put Bayou Fleet out of busi-

ness by unconstitutional means.

Bayou Fleet places great emphasis on the telephone

communications between Clulee and Alexander. As dis-

cussed above, private communications between a political

representative and his constituent are legitimate. The First

Amendment envisions interactions between political repre-

sentatives and their constituents. There are no limits on how

many times one can telephone a public official. Even so, in

il In the prior opinion rendered by this court, the court noted that there

was no evidence presented at the hearing on the permanent injunction

that Bayou Fleet's or any other sand pit's operations caused problems in

the community. See Bayou Fleet, 1997 WL 625492 * 8. Such evidence

was presented at the trial on the merits of plaintiff's claims.

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the court's opinion, the evidence does not show an unusual

number or length of telephone conversations, considering

that Alexander and Clulee were in legitimate cooperation

with each other regarding RAC's permit applications, that

Clulee had information about the technical permit process

that would be helpful to Alexander, and that they had other

legitimate matters to discuss, such as this lawsuit.

The evidence fails to establish that the Clulee defen-

dants had any involvement in the Parish Attorney's investi-

gation of the status of Bayou Fleet's non-conforming use, in

the letter writing campaign that Alexander undertook to var-

ious political representatives and agencies, in the sales tax

audit, the Levee Law ordinance, the Special Legal Counsel

resolution, the requirement of a Change of Occupancy per-

mit, the requirement of a permit to install the guard shack, or

any delays associated with those two permits.

Having found insufficient evidence of a conspiracy

or joint action to equate the Clulee defendants’ conduct with

state action, any conduct of Alexander that violated Bayou

Fleet's constitutional rights is not actionable under § 1983 as

to the Clulee defendants.” See Scott v. Greenville County,

716 F.2d 1409, 1424 (4th Cir.1983) (recognizing that

12 In the prior opinion rendered by this court, it was stated: "Robin

Durant’s uncontradicted testimony establishes that the resolution was

part of a scheme to eliminate Bayou Fleet's business so that Home Place

would be the only sand pit in town.” See id Neither the Clulees nor

Alexander testified at that prior hearing. Furthermore, the court's conclu-

sion herein, that there is no evidence of a conspiracy or joint action

between the Clulee defendants and Alexander to put Bayou Fleet out of

business by a unconstitutional means is not inconsistent with the court’s

prior statement.

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“even overtly biased citizens who write letters, speak up at

public meetings, or even express their prejudices in private

meetings with public officials without formulating a joint

plan of action are not ‘conspiring’ with those officials in a

way that subjects them to § 1983 liability").

C. Sherman Act, Sections | and 2

Bayou Fleet's antitrust claims are based on sections |

and 2 of the Sherman Act, 15 U.S.C.§§ 1 and 2. In order to

state a claim for violation of § 1 of the Sherman Act, a plain-

tiff must allege (1) concerted action by two or more persons,

(2) that unreasonably restrains interstate or foreign trade or

commerce.

The evidence failed to show an unreasonable

restraint of interstate trade. The permits RAC needed to

begin its pit operations were issued without any delays

beyond those normally encountered in the process. Even

assuming that there were delays, there is no evidence that the

delay impacted interstate trade.

A violation of section 2 of the Sherman Act is estab-

lished when the plaintiff shows that the asserted violator: (1)

has antitrust standing; (2) possesses or intends to possess

monopoly power in the relevant market and (3) acquired or _

maintained that power or intends to do the same in a wilful

manner. Aspen Skiing Co. v. Aspen Highlands, 472 U.S.

585, 105 S.Ct. 2847, 2859, 86 L. Ed. 2d 467 (1985) ; United

States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16

L.Ed.2d 778 (1966).

A-73

The evidence failed to show that Bayou Fleet suf-

fered an antitrust injury, which is a component of antitrust

standing. See Bell v. Dow Chemical Co., 847 F. 2d 1179,

1182 (5th Cir. 1988). Bayou Fleet did not prove that the con-

duct of the Clulee defendants had any anticompetitive effect.

RAC obtained all of the permits it sought. The evidence

showed that the alleged delay in the permit process was not

any longer than with other applications. And, even if there

had been an unreasonable delay, there is no evidence that the

delay had an anticompetitive effect. Even assuming that the

Clulee defendants played a wrongful role in passage of the

Levee Law ordinance and the Special Legal Counsel resolu-

tion, (a fact which the evidence failed to prove), those acts

were declared unconstitutional and rescinded before they

took effect.

Accordingly,

IT IS ORDERED that judgment be entered in favor

of defendants Neal Clulee, Mary Clulee, Homeplace Batture

Leasing, Inc., and N/C Materials, Inc. and against plaintiff

Bayou Fleet, Inc., dismissing plaintiff's claims with preju-

dice, plaintiff to bear costs.

New Orleans, Louisiana this 29th day of September,

1999.

HARRY A. MENTZ, JR.

UNITED STATES DISTRICT JUDGE