Bayou Fleet Inc v. Alexander

• Decision Date: 28 November 2000
• Docket Number: No. 99-31172,99-31172
• Citation: 234 F.3d 852
• Parties: (5th Cir. 2000) BAYOU FLEET, INC., Plaintiff-Appellant, v. ELLIS A. ALEXANDER, ET AL, Defendants HOME PLACE BATTURE LEASING, INC.; NEAL CLULEE; MARY CLULEE; N/C MATERIALS, INC., Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 852

234 F.3d 852 (5th Cir. 2000)

BAYOU FLEET, INC., Plaintiff-Appellant, v. ELLIS A. ALEXANDER, ET AL, Defendants

HOME PLACE BATTURE LEASING, INC.; NEAL CLULEE; MARY CLULEE; N/C MATERIALS, INC., Defendants-Appellees.

No. 99-31172

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

November 28, 2000

Appeal from the United States District Court for the Eastern District of Louisiana

Before KING, Chief Judge, PARKER, Circuit Judge, and FURGESON,^* District Judge.

ROBERT M. PARKER, Circuit Judge:

Appellant Bayou Fleet, Inc. appeals from the district court's order granting Mary and Neal Clulee's motion to amend the partial final consent judgment and the district court's final judgment dismissing Bayou Fleet's claims with prejudice. Bayou Fleet filed this action against Ellis Alexander; St. Charles Parish; the Parish's insurer, Coregis Insurance Company; Neal Clulee and his wife Mary Clulee ("the Clulees"); and the Clulees' two companies, Home Place Batture Leasing, Inc. ("Home Place") and 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 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.

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 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 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 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 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 ...