Davric Maine Corp. v. Rancourt

United States Court of Appeals
For the First Circuit

No. 99-2172

DAVRIC MAINE CORPORATION,

Plaintiff, Appellant,

v.

CRAIG J. RANCOURT; IVAL R. CIANCHETTE; JOSEPH M. MOLNAR,
WILLIAM FAUCHER; KEN RONCO; AND EDWARD S. MACCOLL,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Circuit Judge,
Cyr, Senior Circuit Judge,
and Stahl, Circuit Judge.

John S. Campbell, with whom Campbell & McArdle, P.A., was
on brief for appellant.
Peter W. Culley, with whom Catherine R. Connors, Christopher
T. Roach, and Pierce Atwood, were on brief for appellee
Cianchette.
Julian L. Sweet, with whom Berman & Simmons, P.A., was on
brief for appellee Faucher.
Randall B. Weill, with whom Preti, Flaherty, Beliveau,
Pachios & Haley, LLC, were on brief for appellee Rancourt.
 June 23, 2000

STAHL, Circuit Judge. Plaintiff-appellant Davric Maine

Corporation (“Davric”) seeks to overturn a grant of summary

judgment in favor of defendants-appellees Craig Rancourt, Ival

R. Cianchette, and William Faucher (the "defendants").1 Davric

contends that a fact-finder reasonably could conclude that the

defendants violated federal and state antitrust laws and

tortiously interfered with its contractual relations. We

affirm.

Background

Joseph J. Ricci owns a holding company which owns

Davric. Davric, in turn, owns and operates Scarborough Downs

("Scarborough"), a harness racetrack in Scarborough, Maine.

Scarborough hosts races, which attract horses and gamblers from

Maine and other states, and also simulcasts other tracks' races.

The facility is subject to regulation by Maine's Harness Racing

Commission (the “Commission”).

Davric alleges that in 1994, several individuals,

including defendants Cianchette, Faucher, and Rancourt,

1Two other individuals were named as defendants and granted
summary judgment, but Davric's appeal as to these defendants has
been dismissed with prejudice.

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conspired to destroy Scarborough's business in order to

establish a new dominant track or to facilitate a takeover of

Scarborough. Cianchette owned a stake in the only other

racetrack in Maine, Faucher was Director of Operations for

Foxboro Park in Massachusetts, and Rancourt was an attorney who

represented the Maine Harness Horsemen's Association (“MHHA”) in

dealings with Scarborough. The MHHA, as well as the New England

Harness Horsemen's Association (“NEHHA”), supplied the horses

that raced at Scarborough.

Though we believe that summary judgment in the

defendants' favor was fully warranted, we review Davric's record

evidence, as we must, in the light most favorable to it. The

following inferences are supportable: In 1994, the defendants

agreed that they would act in concert to undermine Scarborough's

business and to wrest control of harness racing in southern

Maine from Davric. In early 1994, defendant Faucher spoke of

these efforts with Lou Giuliano, the president of the NEHHA, and

solicited Giuliano's help.2 Faucher informed Giuliano that he

2The lower court excluded from its consideration much of the
evidence regarding Faucher's statements to Giuliano, on the
ground that this evidence, which was presented via Giuliano's
affidavit and deposition testimony, constituted hearsay. We
think it is clear that a defendant's own alleged statements to
Giuliano were admissible against that defendant; if made, they
were classic admissions and are excepted from the hearsay rule.
To simplify this appeal, we will assume arguendo that each
defendant's statements were admissible against all of the

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and several partners intended to bring about the foreclosure of

a mortgage Ricci had taken on Scarborough. Some time later,

Faucher told Giuliano that this plan had failed,3 and that the

anti-Davric group now planned either (1) to persuade the

Commission to deny race dates to Scarborough or (2) to "bury

[Ricci] in the [Maine] legislature." According to Giuliano,

after this conversation, he also "understood" that Faucher

intended the MHHA to be able to prevent its members from

supplying horses to Scarborough without other organizations,

such as the NEHHA, filling the resulting void.4

Giuliano opted not to participate in the defendants'

plans. Representing the MHHA at a public hearing in late 1994,

Rancourt urged that Scarborough be denied racing dates for 1995.

The NEHHA did not follow the MHHA's lead, and Giuliano in fact

testified in favor of race dates for Scarborough. Rancourt,

Cianchette and Faucher all attended this hearing. Immediately

following the hearing, Rancourt and Giuliano became involved in

defendants, though this is a much more debatable question.
3 As discussed below, there is no evidence that any party
ever attempted to implement a plan to secure foreclosure of
Scarborough's mortgage.
4Giuliano's affidavit does not state that Faucher told him
that his confederates actually intended to employ such a
stranglehold. Rather, the affidavit attests only to the
inference Giuliano drew from the conversation.

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a verbal altercation concerning Giuliano's testimony favorable

to Davric.5

In June or July of 1996, approximately two years after

the conversations between Faucher and Giuliano, MHHA leaders

apparently tried to force member horsemen to boycott

Scarborough.6 As a result, for several days, Davric ran fewer

races than it ordinarily would have run.

In March 1997, the MHHA's Executive Secretary, Ken

Ronco, was served with notice to vacate the association's

offices at Scarborough, despite a 1996 contract requiring Davric

to provide the MHHA with office space there. Rancourt

subsequently filed suit against Davric on behalf of the MHHA,

alleging wrongful eviction, conversion of MHHA property, and

assault against Ronco. The wrongful eviction and conversion

claims were submitted to arbitration pursuant to the 1996

contract, and the arbitrator found in favor of the MHHA. The

evidence suggests that the assault claim remains pending.

Davric's summary judgment evidence further suggests

that the defendants have continued to pursue business interests

5
Davric was granted racing dates, but as a condition, the
Commission imposed restrictions on Ricci's involvement with
Scarborough's management.
6
No evidence presented, however, links this "boycott" to any
Scarborough competitor.

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adverse to Davric's in furtherance of the purported conspiracy.

For instance during 1994, Cianchette apparently negotiated with

third parties to establish a new racing location in Southern

Maine. In 1997, Rancourt urged horsemen to frequent racetracks

other than Scarborough. That year, with Rancourt's help, the

MHHA formed a “Steering Committee” to investigate opportunities

for establishing a competitor track. Faucher was named to the

committee, as was Cianchette's son. Rancourt then proposed to

the Maine legislature measures designed to facilitate the

formation of the new track. Later in 1997, these efforts

resulted in the enactment of such legislation.

On June 24, 1998, based on the foregoing claims, Davric

filed suit in federal district court against Rancourt,

Cianchette, Faucher, Joseph M. Molnar, and Ken Ronco. Davric

charged that the defendants had violated federal and state

antitrust laws and tortiously interfered with Davric's

contractual relations. The defendants moved for summary

judgment on all counts. A magistrate judge recommended that

summary judgment be granted, and the district court concurred.

Davric appeals.

Discussion

We review the grant of summary judgment de novo,

construing the record in the light most favorable to Davric and

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resolving all reasonable inferences in its favor. See Houlton

Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st

Cir. 1999). Summary judgment is appropriate if Davric's

evidence is "merely colorable, or is not significantly

probative" to conjure a genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)

(citations omitted). We will not “accept [Davric's] subjective

characterizations of events, unless the underlying events

themselves are revealed.” Simas v. First Citizens' Fed. Credit

Union, 170 F.3d 37, 50 (1st Cir. 1999); see also Liberty Lobby,

477 U.S. at 256; Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 6

(1st Cir. 1998).

I. Federal Antitrust Claims

Davric alleges, first, that the defendants' actions

violated section one of the Sherman Antitrust Act, 15 U.S.C.

§ 1. In support of this claim, Davric targets three classes of

behavior, which we address in turn.

A. The Scarborough "Boycott"

The heart of Davric's claim is its contention that

Rancourt, Faucher, and Cianchette organized a boycott against

Scarborough. The parties dispute whether such a boycott would

be per se invalid or subject to rule of reason review, see

Northwest Wholesale Stationers v. Pacific Stationery & Printing

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Co., 472 U.S. 284, 298 (1985); Klor's Inc. v. Broadway-Hale

Stores, 359 U.S. 207, 212 (1959), but we need not address this

issue of antitrust law. Whichever standard obtains, Davric has

failed to submit adequate evidence to establish a genuine issue

of material fact.

The evidence regarding the MHHA boycott is presented

almost entirely via the affidavits submitted by Giuliano and

several MHHA horsemen. Giuliano testified as follows: In early

1994, Faucher approached him and described various means whereby

Faucher, Cianchette, and several partners planned to wrest

control of Scarborough from Ricci. Faucher later informed

Giuliano that Cianchette had connections with the MHHA. After

what appears to have been a third conversation, during the

summer of 1994, Giuliano "understood that [Faucher] wanted the

MHHA to be able to cut off its members from supplying horses [to

Scarborough] without the risk that the lack of horses could be

made up through other horses which could have been brought . .

. by the [NEHHA]" (emphasis added).

The remaining evidence is derived from the horsemen's

affidavits: In late June or early July, 1996 -- some two years

after the conversations just described -- several MHHA members

noticed activity which suggested to them that certain MHHA

leaders were trying to implement a boycott of Scarborough.

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Stanley Whittemore and Gary Mosher, two trainers with the MHHA,

apparently asked various MHHA members to keep their horses out

of Scarborough races. But the horsemen's testimony regarding

the boycott does not in any way suggest that anyone other than

horsemen members of the MHHA was involved.

In light of the record evidence, there is no genuine

issue of fact regarding a conspiracy among Davric's competitors

to withhold horses from Scarborough. Davric can show only that

Giuliano thought that Faucher would have liked to engineer a

boycott in 1994 and that the MHHA tried to impose one on its own

in 1996. Davric thus has provided insufficient evidence of a

link between the defendants and the MHHA's actions in 1996.

"The mere existence of a scintilla of evidence in support of the

plaintiff's position will be insufficient; there must be

evidence on which the jury could reasonably find for the

plaintiff." Liberty Lobby, 477 U.S. at 252 (citations omitted).

Here, there is no such evidence, and summary judgment was

proper.

B. Defendants' Activities Before the Commission,
the Legislature, and the Courts

Davric also alleges that the defendants' efforts before

the Commission, the Maine Legislature, and the courts are

actionable under federal and state antitrust law. These

endeavors, however, are protected by the Noerr-Pennington

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antitrust immunity doctrine. That doctrine, which derives from

the First Amendment's guarantee of "the right . . . to petition

the government for redress of grievances," U.S. Const. amend. I,

shields from antitrust liability entities who join together to

influence government action -- even if they seek to restrain

competition or to damage competitors. See, e.g., United Mine

Workers v. Pennington, 381 U.S. 657, 670 (1965); Eastern R.R.

Conference v. Noerr Motor Freight, 365 U.S. 127, 135-38 (1961);

Sandy River Nursing Care v. Aetna Cas., 985 F.2d 1138, 1141 (1st

Cir. 1993). The doctrine applies to "petitions" before

legislatures, administrative agencies, and courts. See, e.g.,

Otter Tail Power Co. v. United States, 410 U.S. 366, 379-80

(1973); California Transp. Co. v. Trucking Unlimited, 404 U.S.

508, 510 (1972). Even false statements presented to support

such petitions are protected. See, e.g., Pennington, 381 U.S.

at 670.

Davric seeks refuge in the Noerr-Pennington doctrine's

“sham” exception, which exempts a party's resort to governmental

process from antitrust immunity when such resort is objectively

baseless and intended only to burden a rival with the

governmental decision-making process itself. See, e.g., City of

Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380 (1991).

But this exception is unavailable here, because it only

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“encompasses situations in which persons use the governmental

process -- as opposed to the outcome of that process -- as an

anticompetitive weapon.” Id.; see also Professional Real Estate

Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49,

60-61 (1993). Moreover, "a successful 'effort to influence

governmental action . . . certainly cannot be characterized as

a sham.'" Id. at 58 (quoting Allied Tube & Conduit Corp. v.

Indian Head, Inc., 486 U.S. 492, 502 (1988)) (alteration in

original).

In this case, it is apparent that the defendants sought

to benefit from the outcomes of the processes at issue and that,

in any case, they cannot be considered "objectively baseless."

First, the defendants' efforts to lobby the Commission and the

legislature were, in part, successful. They therefore cannot be

considered shams, and are immune from federal or state antitrust

scrutiny.7 The litigation arising out of Davric's expulsion of

7Courts have differed as to whether the Noerr-Pennington
doctrine is a creature of the First Amendment, in which case it
would apply of its own force to state antitrust claims, or
whether it instead constitutes a mere interpretation of the
Sherman Act, in which case it would not necessarily apply to
state antitrust statutes that failed to mirror their federal
counterparts. Compare Cheminor Drugs, Ltd. v. Ethyl Corp., 168
F.3d 119 (3d Cir. 1999) (firmly establishing Noerr-Pennington as
an outgrowth of the First Amendment), and Kottle v. Northwest
Kidney Ctrs., 146 F.3d 1056, 1059 (9th Cir. 1998) (same), with
Cardtoons, L.C. v. Major League Baseball Players Assoc., 208
F.3d 885, 890 (10th Cir. 2000) ("Antitrust cases that grant
Noerr-Pennington immunity do so based upon both the Sherman Act

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the MHHA from Scarborough also satisfies the requirements for

Noerr-Pennington immunity. "The existence of probable cause to

institute legal proceedings precludes a finding that an

antitrust defendant has engaged in sham litigation," and such

probable cause "requires no more than a reasonable belief that

there is a chance that a claim may be held valid upon

adjudication." Professional Real Estate Investors, 508 U.S. at

62-63. Davric cannot prove that the MHHA or Ronco lacked such

a reasonable belief. As noted above, an arbitrator who heard

all but one of the claims against Davric found Davric liable on

each of the claims it adjudicated, demonstrating that they were

hardly baseless. The remaining charge -- alleging assault

against Ronco -- is apparently still pending, but in light of

the evidence presented regarding the details of Ronco's

expulsion from Scarborough, we believe that Ronco, the MHHA, and

Rancourt certainly could have harbored a reasonable expectation

and the right to petition."), and Coastal States Marketing, Inc.
v. Hunt, 694 F.2d 1358, 1364-65 (5th Cir. 1983) ("Noerr was
based on a construction of the Sherman Act. It was not a first
amendment decision."). We need not address this controversy
because "Maine antitrust statutes parallel the Sherman Act" and
are analyzed pursuant to federal antitrust doctrine. Tri-State
Rubbish, Inc. v. Waste Management, Inc., 998 F.2d 1073, 1081
(1st Cir. 1993). Thus, regardless of whether the Noerr-
Pennington protections are constitutional or statutory in
nature, they will apply with equal force to Davric's claims
under state and federal antitrust law.

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of success on the merits of that charge. The MHHA litigation,

therefore, also is immune from antitrust scrutiny.8

C. Defendants' Attempts To Secure Foreclosure on
Ricci's Mortgage

Davric also argues that the defendants' attempt to take

advantage of contacts with Ricci's banker to effect a

foreclosure on the Scarborough mortgage constituted an

actionable violation of antitrust law. Like the district court,

we see inadequate evidence to support this contention.

To prevail with respect to this claim, Davric would

have to demonstrate that it suffered antitrust injury as a

result of the defendants' attempt to have the mortgage

foreclosed. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429

U.S. 477, 484-89 (1977); Caribe BMW, Inc. v. Bayerische Motoren

Werke Aktiengesellschaft, 19 F.3d 745, 752 (1st Cir. 1994); CVD,

8 Davric's papers also allude to a separate suit in which
Rancourt represented a creditor of Giuliano's. It is unclear
how litigation against Giuliano, who is not a party to this
case, could ground an antitrust claim set forth by Davric alone,
but even if it could, this litigation is also protected by
Noerr-Pennington. As Giuliano concedes, that suit resulted in
a judgment against him. It thus does not matter whether, as
Davric suggests, Rancourt pursued the matter more vigorously
than he otherwise might have due to animosity toward Giuliano.
Cf. City of Columbia, 499 U.S. at 380 (labeling a party's
motives in pursuing petition "irrelevant"). The successful
litigation did not lack an objective basis, and therefore was
not a sham under Noerr-Pennington. See, e.g., Professional Real
Estate Investors, 508 U.S. at 60 ("Only if a challenged
litigation is objectively meritless may a court examine the
litigant's subjective motivation.").

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Inc. v. Raytheon Co., 769 F.2d 842, 857-58 (1st Cir. 1985). But

Davric appears unable to demonstrate any injury at all.

According to Davric's own evidence -- presented in Giuliano's

affidavit -- Faucher told Giuliano that the planned attempt to

force a foreclosure had failed. Davric submitted no evidence of

any actual foreclosure. Indeed, Ricci admitted at his

deposition that he had not even approached Key Bank to determine

whether any attempt ever actually was made to effect a

foreclosure. Further, at his deposition, Cianchette denied ever

discussing Ricci or Scarborough with Key Bank personnel. In the

absence of any antitrust injury stemming from the defendants'

purported attempt to have the Key Bank foreclose on the track's

mortgage, summary judgment on this claim was appropriate.

II. Maine Antitrust Claims

Davric also claims that the defendants violated Maine's

antitrust laws. See Me. Rev. Stat. Ann. tit. 10, § 1101 et seq.

The Maine statute prohibits "[e]very contract, combination

. . ., or conspiracy, in restraint of trade or commerce," id.

§ 1101, and provides that "[w]hoever shall monopolize or attempt

to monopolize or combine or conspire with any other person or

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persons to monopolize any part of the trade or commerce of this

State shall be guilty of a Class C crime," id. § 1102.9

As described at length above, Davric cannot prevail on

its conspiracy-based claims. Davric's flawed arguments

concerning the alleged boycott, the defendants' attempts to

interfere with Scarborough's mortgage, and their efforts before

the Commission, the Maine legislature, and the courts similarly

doom any recovery under Me. Rev. Stat. Ann. tit. 10, § 1101.

Moreover, Davric concedes that the defendants have not actually

monopolized its market pursuant to § 1102. In fact, Davric's

brief strongly suggests that it remains the dominant player in

the appropriate market:

Of the $18 million wagered on live racing in
Maine in 1993, $10.8 million was wagered at
Scarborough Downs. No other facilities
offer the racing opportunities and purses
available at Scarborough Downs. For
decades, Scarborough Downs had been the
principal extended racing meet in the State
of Maine and since the late 1980s it had
been the only such facility in Central or
Southern Maine.

Further, as Davric notes, "a new track would first have to

operate for two consecutive years in order to qualify for a

share of the off-track betting . . . revenue."

9
Despite the use of the word "crime," the Maine statute
explicitly permits "any person" to seek redress for a violation.
See Me. Rev. Stat. Ann. tit. 10, § 1104.

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 The only remaining question, then, is whether Davric

can demonstrate that the defendants attempted to monopolize any

particular market. We have noted that the "Maine antitrust

statutes parallel the Sherman Act," and thus have analyzed

claims thereunder according to the doctrines developed in

relation to federal law. Tri-State Rubbish, Inc. v. Waste

Management, Inc., 998 F.2d 1073, 1081 (1st Cir. 1993). Those

doctrines justify summary judgment in this case. "[A] plaintiff

charging attempted monopolization must prove a dangerous

probability of actual monopolization, which has generally

required a definition of the relevant market and examination of

market power." Spectrum Sports, Inc. v. McQuillan, 506 U.S.

447, 455 (1993) (emphasis added); see also Springfield Terminal

Ry. Co. v. Canadian Pac. Ltd., 133 F.3d 103, 107-08 (1st Cir.

1997) (recognizing requirement that plaintiff who alleges

attempted monopolization must demonstrate defendant's market

power and "dangerous probability of success"); George R.

Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 508 F.2d 547,

550 (1st Cir. 1974) ("[W]e . . . think that [an attempted

monopolization] case, like a monopolization case, requires a

definition of the relevant market."). Davric, however, has

failed to set forth any evidence establishing power in any

particular geographic or product-based market, and certainly has

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not produced evidence suggesting a "dangerous probability" of

monopolization. On the contrary, the most Davric can show is

that for a period of several days, it was forced to run fewer

races than it otherwise would have. Because Davric has provided

not even "a scintilla of evidence in support of [its] position,"

Liberty Lobby, 477 U.S. at 252, summary judgment on its

attempted monopolization claim was proper.

III. Tortious Interference Claims

Finally, Davric contends that a jury might have found

that the defendants tortiously interfered with relations both

between Davric and the horsemen and between Davric and

administrative authorities. In Maine, "[i]nterference with an

advantageous relationship requires the existence of a valid

contract or prospective economic advantage, interference with

that contract or advantage through fraud or intimidation, and

damages proximately caused by the interference." Barnes v.

Zappia, 658 A.2d 1086, 1090 (Me. 1995); see also DiPietro v.

Casco N. Bank, 490 A.2d 215, 219 (Me. 1985); MacKerron v.

Madura, 445 A.2d 680, 683 (Me. 1982); Harmon v. Harmon, 404 A.2d

1020, 1025 (Me. 1979).

Davric's assertion of tortious interference cannot

survive summary judgment. Although Davric declares conclusorily

that the defendants impeded its relationship with "horsemen and

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horsemen groups" and with the Commission, it nowhere explains

specifically how the defendants' conduct affected those

relationships. It has produced no evidence of fraud or

intimidation directed at either the MHHA or the Commission, and

while it claims that the defendants attempted to intimidate

NEHHA president Giuliano, it concedes that Giuliano refused to

alter that organization's relationship with Scarborough. This

concession precludes the requisite showing of damages. All

Davric has provided us with, then, is innuendo and conjecture.

As noted above, we will not “accept the nonmovant's subjective

characterizations of events, unless the underlying events

themselves are revealed.” Simas, 170 F.3d at 50. Summary

judgment therefore was appropriate with regard to Davric's

tortious interference claims.

Conclusion

For the foregoing reasons, we AFFIRM.

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