Bryant v. Mississippi Military Dept., Civil Action No. 3:05CV179TSL-JCS.

• Decision Date: 17 June 2008
• Docket Number: Civil Action No. 3:05CV179TSL-JCS.
• Parties: Joe H. BRYANT, Plaintiff v. MISSISSIPPI MILITARY DEPARTMENT, et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

569 F.Supp.2d 680

Joe H. BRYANT, Plaintiff v. MISSISSIPPI MILITARY DEPARTMENT, et al., Defendants.

Civil Action No. 3:05CV179TSL-JCS.

United States District Court, S.D. Mississippi, Jackson Division.

June 17, 2008.

Paul A. Koerber, Sessums, Dallas & Morrison, PLLC, Ridgeland, MS, Wayne E. Ferrell, Jr., Wayne E. Ferrell, Jr., Attorney, Jackson, MS, for Plaintiff.

Emerson Barney Robinson, III, Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Michael Farrell, Youngwilliams P.A., Jackson, MS, for Defendants.

F. Gregory Malta, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, TX, pro se.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

With leave of court, defendants have filed and there is now pending before the court for consideration a second motion for summary judgment filed by defendants Franklin E. Chalk, Frederick D. Feinstein, Roy A. Graham, Billy Joe Gressett, Donald E. Jones, Langford L. Knight, William F. Parten, Robert E. Pierce, Roger E. Shirley, Charles F. Steed, Aaron K. Wilson and Thomas Temple. Plaintiff Joe H. Bryant has responded to the motion and the court, having considered the memoranda of authorities submitted by the parties, along with other pertinent authorities, concludes that the motion should be granted.

Plaintiff filed this action alleging claims under federal and state law based on allegations that defendants engaged in conduct amounting to threats, intimidation and violence against him in retaliation for his having made allegations of misconduct by members (including defendants) of the 186th Refueling Wing of the Mississippi Air National Guard.¹ Previously in this cause, all defendants (other than Greg Malta) moved collectively for summary judgment on all plaintiffs claims, including his claim or claims based on allegations that defendants retaliated against him for his whistleblowing activities by, among other things, initiating frivolous litigation against him. At the time of that motion, defendants were under the impression that this claim related solely to a June 3, 2003 slander suit they had filed against Bryant in state court based on comments he had made during a radio talk show.² They argued that under the reasoning of Bill Johnson's Restaurants v. NLRB, 461 U.S. 731, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983), a case decided in the context of what they contended was "the analogous situation under the National Labor Relations Act, 29 U.S.C. § 141, et seq., which has a retaliation provision," they could not be held liable for retaliation if they had a reasonable factual basis for the suit. Citing Bill Johnson's Restaurants, defendants claimed they were entitled to summary judgment because, even assuming they had a retaliatory motive for filing that slander lawsuit(s) against Bryant, "the filing of a meritorious suit is not an actionable act of retaliation."³ They maintained that since they had "a reasonable basis (in fact and in law) to file the (slander) suit," they could not be held liable for retaliation. This court denied defendants' motion for summary judgment, explaining it could not simply assume that defendants had a reasonable basis for bringing the action. See Bryant v. Miss. Military Dept., Civil Action No. 3:05CV179TSL-JCS, at 20, 2008 WL 2477474 (S.D.Miss. July 17, 2007).⁴

Defendants have now filed a second motion for summary judgment, arguing that the applicable analysis is not that which is set forth in Bill Johnson's Restaurants v. NLRB, which would require defendants to show that their lawsuits were meritorious, but rather, that enunciated in BE & K Construction Co. v. NLRB, 536 U.S. 516, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002), under which the plaintiff, to succeed on his claim, would have to show that defendants' lawsuits against him were not "objectively baseless." Having further considered the issue, the court is of the opinion that the "objectively baseless" standard is applicable; the court is further of the opinion that plaintiff has not shown (nor for that matter undertaken to show) that defendants' lawsuits were objectively baseless. Therefore, the court will vacate its earlier opinion on the issue and enter summary judgment for defendants.

Plaintiff has claimed in this action that defendants' slander lawsuit, and a number of other lawsuits filed against him by individual defendants,⁵ were filed in retaliation for his whistleblowing activities. Defendants' motion is grounded on the principle that the First Amendment protects an individual's right of access to the courts. The right to petition the government contained in the First Amendment protects the right of plaintiffs to file certain suits. See BE & K Constr. Co. v. NLRB, 536 U.S. 516, 525, 122 S.Ct. 2390, 2396, 153 L.Ed.2d 499 (2002); Cal. Motor Trans. Co. v. Trucking Unlimited, 404 U.S. 508, 510-11, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). Defendants recognize that this right is not absolute, and that the Supreme Court has held in labor and antitrust contexts that "sham" suits can lead to civil liability if those suits "were both objectively baseless and subjectively motivated by an unlawful purpose." BE & K Constr. Co., 536 U.S. at 531, 122 S.Ct. at 2399 (citing Bill Johnson's Rests., Inc., v. NLRB, 461 U.S. 731, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983), and Profl Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993)). See also Dixon v. International Broth. of Police Officers, 504 F.3d 73, 86 (1st Cir. 2007). Defendants argue, correctly in the court's view, that there is no reason these same principles would not also apply in the present context, where plaintiff seeks to hold defendants liable for exercising their First Amendment right to initiate litigation. See Sosa v. DIRECTV, Inc., 437 F.3d 923, 931 (9th Cir.2006) ("[W]e conclude that the Noerr-Pennington doctrine⁶ stands for a generic rule of statutory construction, applicable to any statutory interpretation that could implicate the rights protected by the Petition Clause.") (citing White v. Lee, 227 F.3d 1214, 1231 (9th Cir.2000) (holding, before BE & K, that because it "is based on and implements the First Amendment right to petition," the Noerr-Pennington doctrine is not limited to the antitrust context, but "applies equally in all contexts")); Zemenco, Inc. v. Developers Diversified Realty Corp., No. Civ. A. 03-175, 2005 WL 2545303, at *9 (W.D.Pa. Oct. 7, 2005) (noting that prior Third Circuit precedent gave no indication that "this principle of First Amendment immunity was not meant to have general applicability ....") (citing Barnes Foundation v. Township of Lower Merion, 242 F.3d 151, 160 (3d Cir.2001)). Defendants further submit that since plaintiff has not and cannot show that defendants' slander lawsuit, or any of the other cases brought by one or more of them, was "objectively baseless," then plaintiff cannot prevail on his claim against them.

To lose the protection afforded by the First Amendment, "the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits." Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 59, 113 S.Ct. 1920, 1928, 123 L.Ed.2d 611 (1993). "If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome," the suit is immunized and plaintiffs retaliation claim cannot succeed. See id. See also A Fisherman's Best, Inc. v. Recreational Fishing Alliance, 310 F.3d 183, 191 (4th Cir.2002) ("The existence of probable cause to institute legal or administrative action precludes a finding that an antitrust defendant has engaged in sham litigation. The necessary probable cause requires no more than a reasonable belief that there is a chance that a claim may be held valid upon adjudication.") (citing Prof'l Real Estate Investors).

In short, defendants had a right to file their lawsuits, (even if their motive was retaliatory) and their suits are protected by the First Amendment, regardless of whether they were successful on the merits, unless plaintiff shows that their lawsuits were objectively baseless. And here, plaintiff has not shown that any litigation brought against him by defendants was "objectively baseless." In his memoranda, plaintiff does refer generally to "frivolous litigation" by defendants, and identifies the slander suit in particular as "frivolous" and "meritless." Yet the principal focus of his argument and proof has been on defendants' subjective intent in bringing the lawsuits, not on whether they had a basis for bringing them. In fact, so far as the court can determine, plaintiff's only substantive argument, as contrasted with conclusory characterizations, relates to the slander suit, as to which he argues only that "[d]espite their purportedly being `upset,' none of the Defendants were named on the subject radio program and none of them stated that they had experienced any damages proximately caused by the radio program." However, that lawsuit cannot fairly be said to have been "objectively baseless" solely because plaintiff did not identify any of the defendants by name in the radio talk show. Defendants could reasonably have taken the position that listeners would have known plaintiffs comments were directed against them notwithstanding that he did not use their names. Moreover, there is obviously no merit to plaintiffs suggestion that defendants' suit was "objectively baseless" because defendants did not allege they had experienced any damages as a proximate result of plaintiffs comments. Plaintiff does not deny that his statements in the talk show were disparaging of the "leadership" at the 186th, and he does not dispute defendants' assertion that they considered that his statements slandered them. In short, plaintiff has not shown that defendants' slander suit against him was "objectively baseless."

Plaintiff has made no effort to show that any other allegedly "frivolous...