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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 905

## Text

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

A-3

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

A-13

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

A-16

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.

A-17

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.

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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

A-64

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

A-68

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

A-69

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

A-70
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.

A-71

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.

A-72

“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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1591%3A2. Public record. Not legal advice.