Hufsmith v. Weaver, s. 86-1960
| Decision Date | 29 April 1987 |
| Docket Number | Nos. 86-1960,86-1978,s. 86-1960 |
| Citation | 817 F.2d 455 |
| Parties | , 1987-1 Trade Cases 67,544, RICO Bus.Disp.Guide 6612 George HUFSMITH, Razorback Ready Mix Concrete Co., Inc., Appellant, v. Charles T. WEAVER, Individually and in his capacity as President of L & S Concrete Co.; Webco, Inc.; Julian Gilliam, Individually and in his capacity as President of Gilliam Brothers, Inc.; Gilliam Brothers, Inc.; Ellen Case, Individually and in her capacity as President of Case Concrete Co.; Case Concrete Company; Larry Rogers, Individually and as a member of the Pulaski Co. Quorum Court; W.W. Whipple, Individually and in his capacity as a member of the Pulaski Co. Quorum Court; Willandre Dean, Individually and as a member of the Pulaski Co. Quorum Court, Appellees. George HUFSMITH, Razorback Ready Mix Concrete Co., Inc., Appellee, v. Charles T. WEAVER, Individually and in his capacity as President of L & S Concrete Co.; Webco, Inc.; Julian Gilliam, Individually and in his capacity as President of Gilliam Brothers, Inc.; Gilliam Brothers, Inc., Appellants. Ellen Case, Individually and in her capacity as President of Case Concrete Co.; Case Concrete Company; Larry Rogers, Individually and in his capacity as a member of the Pulaski Co. Quorum Court; Willandre Dean, Individually and as a member of the Pulaski Co. Quorum Court. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Samuel A. Perroni, Little Rock, Ark., for appellant.
Steven Napper, Little Rock, Ark., for appellee.
Before ROSS, BOWMAN, and MAGILL, Circuit Judges.
This is the second trip that Razorback Ready Mix Concrete Company, Inc. ("Razorback") and defendants-appellees, competitors of Razorback, have made to this court. In Razorback Ready Mix Concrete Co. v. Weaver, 761 F.2d 484 (8th Cir.1985) ("Razorback I "), we held as a matter of law, as to Razorback's Sherman Act claim, that the "sham exception" to the Noerr-Pennington doctrine was inapplicable to the defendants' lawsuits opposing the issuance of certain tax-exempt industrial revenue bonds which would have benefited Razorback. Id. at 487. 1 This court thus vacated the district court order denying defendants' motions for summary judgment and dismissal, and directed the district court to grant the motions with respect to the Sherman Act claim. Id. at 488-89. As a result of these rulings, we noted that diversity of citizenship among the parties did not exist, and thus observed that the district court would have to exercise its discretion in determining whether or not to retain jurisdiction of Razorback's pendent tortious interference with contract claim, which was not before us. Id. at 489 n. 1 (citations omitted).
After Razorback I was decided, Razorback filed with the district court a motion for leave to amend its complaint to include a RICO action under 18 U.S.C. Sec. 1962 and an abuse of process claim, and a motion to retain jurisdiction of the tortious interference claim. The defendants responded by agreeing with Razorback that the district court should retain jurisdiction, but only for the purpose of granting their motions for summary judgment on Razorback's tort claim. The defendants first argued that dismissal was appropriate because in Razorback I, we ruled that their actions were immune from antitrust liability under the Noerr-Pennington doctrine, and because cases from this circuit, such as First National Bank of Omaha v. Marquette National Bank of Minneapolis, 482 F.Supp. 514 (D.Minn.1979), aff'd per curiam, 636 F.2d 195 (8th Cir.1980), cert. denied, 450 U.S. 1042, 101 S.Ct. 1761, 68 L.Ed.2d 240 (1981), have held that the doctrine is applicable to tort claims. Alternatively, the defendants argued that the claim could be dismissed on res judicata grounds, because in an earlier Arkansas state court case involving the same tortious interference claim, the Pulaski County Circuit Court held that the defendants' actions were protected by the Noerr-Pennington doctrine. 2 The defendants further argued that res judicata barred Razorback's proposed RICO and abuse of process claims because they arose out of the same operative facts as the Sherman Act and tortious interference claims. Additionally, the Gilliam defendants moved for attorney's fees under Fed.R.Civ.P. 11, asserting that existing law was clear in this area at the time Razorback filed its aforementioned motions, and that the motions were filed merely for purposes of harassment.
The district court 3 granted Razorback's motion to retain jurisdiction, but relying on Razorback I and In re IBP Confidential Business Documents Litigation, 755 F.2d 1300 (8th Cir.1985), held as a matter of law that the doctrine of res judicata barred further litigation of the pending tortious interference claim, and of the proposed RICO and abuse of process claims. 4 Accordingly, the court granted the defendants' motions with respect to Razorback's Sherman Act claim as mandated by Razorback I, granted their motions for summary judgment on the tortious interference claim, and denied Razorback's motion to amend its complaint to assert RICO and abuse of process claims. The court also denied the Gilliam defendants' motion for attorney's fees on the basis that the IBP opinion, which the court felt "clarified the scope of the Noerr-Pennington doctrine," was not filed until after Razorback moved to amend its complaint and to ask the court to retain jurisdiction.
Razorback appeals on the sole ground that the district court erred in granting the defendants' motions for summary judgment on the tortious interference claim. 5 The Gilliam defendants cross-appeal, renewing their claim for attorney's fees.
Razorback does not claim that the Noerr-Pennington doctrine is inapplicable to its tortious interference with contract claim. Rather, Razorback asserts that the district court should not have extended the doctrine as a matter of law to the claim because Razorback has never had an opportunity to present the facts of its claim to a jury.
In IBP, this court carefully examined the history and import of the Noerr-Pennington doctrine, see IBP, 755 F.2d at 1311-13, which emanated from the Supreme Court's decision in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), a case involving antitrust claims, which the Supreme Court later explained as based on the first amendment's guarantee of the right to petition the government. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); IBP, 755 F.2d at 1311.
Although the Supreme Court has never decided whether the Noerr-Pennington doctrine is applicable outside the antitrust area, Central Telecommunications, Inc. v. TCI Cablevision, Inc., 800 F.2d 711, 717-18 n. 7 (8th Cir.1986), this court has long indicated that the doctrine may be so extended. See First National Bank of Omaha, 482 F.Supp. at 521, 524-25 (), aff'd per curiam, 636 F.2d 195 (8th Cir.1980), cert. denied, 450 U.S. 1042, 101 S.Ct. 1761, 68 L.Ed.2d 240 (1981); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 614-15 (8th Cir.1980) (); Missouri v. National Organization for Women, Inc., 620 F.2d 1301, 1318-19 (8th Cir.) (Noerr-Pennington doctrine held applicable to plaintiff's tortious infliction of economic harm claim), cert. denied, 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 49 (1980).
In IBP, however, this court clarified the scope of the doctrine's application to non-antitrust claims. We explicitly recognized that it may be extended to a defendant's actions to influence the government which have given rise to claims of tortious interference with business, and to alleged conspiracies under 42 U.S.C. Sec. 1983. IBP, 755 F.2d at 1312-13 (citations omitted). Our most recent decision involving this specific issue approved IBP's scope analysis, at least with respect to the tortious interference with business expectancy claim involved in that case. Central Telecommunications, 800 F.2d at 717-18 n. 7. Accordingly, Razorback concedes, as it must, that the Noerr-Pennington doctrine may be applied to its tortious interference with contract claim.
Razorback argues, however, that many of the above-cited cases are distinguishable from the present case because they were decided only after the district court or this court fully reviewed the facts. Razorback notes it has never been given this opportunity since its claims have always been decided by way of summary judgment. Additionally, although recognizing Razorback I held that the defendants' actions did not fall within the "sham" exception to the Noerr-Pennington doctrine, Razorback claims that their actions may fall within the "other" exception to the doctrine outlined in IBP, i.e., activities "which do not qualify for protection even if undertaken in a genuine attempt to influence governmental policy." IBP, 755 F.2d at 1313. Razorback thus argues that there are general issues of material fact which should have precluded the district court from granting defendants' motions for summary judgment on the tortious interference claim. We disagree.
In the Sherman Act count of its amended complaint, Razorback alleged, among other things, that the defendants filed a "false and fraudulent" lawsuit and appeal to prevent issuance of the revenue bonds. In Razorback I, however, this court held:
Our review of the cases convinces us that the key to the "sham exception" is an improper interference with governmental processes. We think it is clear that the institution of a single lawsuit and a related appeal, which is the conduct that defendants herein are charged with, does not give rise to a cause of action under the antitrust laws absent...
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