Bayou Fleet, Inc. v. Alexander

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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

November 28, 2000
Before KING, Chief Judge, PARKER, Circuit Judge, and FURGESON,*
District Judge.

ROBERT M. PARKER, Circuit Judge:

Appellant Bayou Fleet, Inc. appeals from the district court’s

order granting Mary and Neal Clulee’s motion to amend the partial

*
District Judge of the Western District of Texas sitting by
designation.

1
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 N/C Materials,

Inc. Bayou Fleet alleged that the defendants conspired to

eliminate it from the sand pit business through challenges 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 a 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 liability 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

2
denied its First Amendment right of access to the courts, abused

its discretion by amending the consent judgment, and erred in its

dismissal of the case under the Noerr-Pennington doctrine.

I.

This case involves one of several disputes in a long feud

between the Durant family and the Clulee family in Hahnville,

Louisiana.1 Both families own businesses alongside 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 N/C Materials. Bayou Fleet

and Home Place maintained the only active sand pits in Hahnville.2

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 Bayou Fleet.

1
For a history of the controversy between the parties in this
case, see Bayou Fleet, 68 F. Supp. 2d. at 736-743.
2
A third sand pit, owned by the Giambelluca family, went out of
business after a dispute between the Giambellucas and the Clulees.
See Giambelluca v. Parish, 687 So.2d 424 (La. Ct. App. 5th Cir.
1996).

3
 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 satisfied.” 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

4
for St. Charles Parish, that Alexander’s constituents were

objecting to Bayou Fleet’s 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, concluded 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

company’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

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-conforming 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.

5
objection to the Corps of Engineers 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

alternative proposal had the same effect as the letter of

objection. Nonetheless, the Parish Council adopted Alexander’s

resolution. 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

6
of the Levee Board.

On July 1, 1997, the Levee Board reconsidered its previous

decision and granted Adams’ operation permit. 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 lawsuit

against Alexander, the Parish, the Clulees and the Clulees’

companies, Home Place and N/C 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 meeting 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

7
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.

Chaisson, the Clulees’ attorney, be appointed to the the position.

Bayou Fleet filed for an injunction and for declaratory 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 violated 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 ordinances

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

8
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 agreement, the

Clulees filed a mandamus action in state court to challenge Bayou

Fleet’s operations under the zoning restrictions. In response to

the federal court’s consent judgment, the Clulees filed a motion to

amend or alter the judgment, claiming 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 district

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 affirmative 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 dismissing

Bayou Fleet’s case for reasons of Noerr-Pennington immunity on

September 29, 1999.

II.

9
 A. 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 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 leading 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

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 (5th 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 Corp., 569
F.2d 251 (5th Cir. 1978) (concluding that counsel had an unfair
advantage because he worked as the judge’s law clerk in an earlier
trial of the case); Kennedy v. Great Atlantic & Pacific Tea Co.,
Inc., 551 F.2d 593 (5th Cir. 1977) (holding that a law clerk could
not gain special 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.

10
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 are denied, it’s denied because

they set it after trial. The merits 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 interrupted

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

11
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 Marketing, Inc. v Hunt,

694 F.2d 1358, 1363 (5th 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 (5th 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 guided by the recognition

that Article III of the constitution vesting 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

12
oath pursuant to Article III. It follows that the constitution

requires those functions traditionally 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-making process of the trial. The

involvement of the 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 agreement, 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.

13
 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 (5th Cir.

1981) (en banc)(Rubin, J.). Because a consent judgment has a

continuing affect on the rights of litigants, courts are required

to ascertain whether the parties agreement “represents a reasonable

factual and legal determination based on the facts of the record .

. ..” Id. 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 (5th Cir. 1993) (citing Local No. 93, Int’l Ass’n of

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

litigants reach a settlement that also affects 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 consent judgment for abuse of

discretion. See Williams v. City of New Orleans, 729 F.2d 1554,

1558 (5th 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.

14
 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.6

Courts must also examine the effect of a consent judgment on

third parties. See Local No. 93, Int’l Ass’n of Firefighter, 478

U.S. at 529. Louisiana law allows any person 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 negotiations 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

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
ordinance’s applicability to Bayou Fleet.

15
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 protection 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 governments). Noerr-

Pennington immunity applies to any concerted effort to sway public

officials regardless of the private citizen’s intent. See

Pennington, 381 U.S. at 670. Although 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 (5th Cir. 1988), cert. denied, 491 U.S. 906

16
(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 concluded that the Cluelees

were immune under Noerr-Pennington for contacting Alexander

concerning Alexander’s attempts to thwart Bayou Fleet’s sand pit

operations. The district court therefore dismissed Bayou Fleet’s

section 1983, Sherman Act, and Louisiana Unfair Trade Practices Act

claims. See Bayou Fleet v. Alexander, 68 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

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 (5th 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
Ass’n, 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 Noerr-
Pennington doctrine . . ..”). However, where an individual’s
conduct raises Noerr-Pennington immunity under antitrust law, the
same conduct “is also out of the scope of section 1983 liability.”
Video Int’l Prod., Inc., 858 F.2d at 1084. The Clulees may be
entitled to immunity both under the Noerr-Pennington doctrine for
purposes of antitrust liability and the First Amendment for
purposes of Bayou Fleet’s section 1983 claim. Because the same
facts and legal analysis apply to both theories of immunity, we
will not make a distinction between the two.

17
Civil Procedure. Bayou Fleet also contends that, in the

alternative, the Noerr-Pennington doctrine 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. v. Wenger

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

should be raised as an affirmative defense.8 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 (5th 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. Pepper/Seven Up Corp.,

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

affirmative defense is not waived if it is raised at a

“pragmatically sufficient time, and the plaintiff was not

prejudiced in its ability to respond.” Chambers v. Johnson, 197

F.3d 732, 735 (5th Cir. 1999) (quoting Lucas, 807 F.2d at 418). We

therefore look to the record to ascertain whether the trial court

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.

18
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 district

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-Pennington immunity. Bayou Fleet also submitted its

memorandum claiming either that Noerr-Pennington had been waived or

19
that it did not apply.

The non-jury trial began on February 22 and continued 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 litigation. 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

surprised by the Clulees’ attempts to raise immunity in the

Pretrial Order is untenable.

Bayou Fleet argues that its inability to conduct discovery

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

20
fact 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 proposals 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 conspiracy. 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 liability, 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

21
380.9

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 exception applies

to defendants who use the process as an anticompetitive 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 (5th Cir. 1994).

Lobbying activity 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

reasonable litigant could realistically expect success on the

merits”).

Bayou Fleet argues that the Clulees lobbied local officials in

retaliation to Adams’ contract with Bayou Fleet and, later, Bayou

9
Bayou Fleet urges this Court to ignore the Noerr-Pennington
doctrine because the defendants were allegedly involved in a civil
rights conspiracy. 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 business.

22
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 Councilmember 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 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 separate exception to the Noerr-Pennington

doctrine for retaliatory intent, and we decline to create a new

exception here.

23
 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.

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 (applying Noerr-Pennington to dismiss an

antitrust claim under state law); Video Int’l Prod., Inc., 858 F.2d

at 1084 (applying Noerr-Pennington to shelter individuals from

liability under section 1983).

24
 III.

In sum, we conclude that the law clerk’s role in the non-jury

trial did not affect Bayou Fleet’s right of meaningful 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

25