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