Manego v. Orleans Bd. of Trade, s. 85-1032

• Decision Date: 03 September 1985
• Docket Number: Nos. 85-1032,85-1033,s. 85-1032
• Citation: 773 F.2d 1
• Parties: , 1985-2 Trade Cases 66,758 Isaac MANEGO, Plaintiff, Appellant, v. The ORLEANS BOARD OF TRADE, et al., Defendants, Appellees. Isaac MANEGO, Plaintiff, Appellee, v. The ORLEANS BOARD OF TRADE, et al., Defendants, Appellees. Cape Cod Five Cents Savings Bank and David B. Willard, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1

773 F.2d 1

82 A.L.R.Fed. 815, 1985-2 Trade Cases 66,758

Isaac MANEGO, Plaintiff, Appellant, v. The ORLEANS BOARD OF TRADE, et al., Defendants, Appellees.

Isaac MANEGO, Plaintiff, Appellee, v. The ORLEANS BOARD OF TRADE, et al., Defendants, Appellees.

Cape Cod Five Cents Savings Bank and David B. Willard,

Defendants, Appellants.

Nos. 85-1032, 85-1033.

United States Court of Appeals, First Circuit.

Argued June 5, 1985.

Decided Sept. 3, 1985.

Charles Ray Weidman, Chatham, Mass., for Isaac Manego.

Laura L. Carroll, Boston, Mass., with whom Kenneth A. Cohen, Edward J. DeAngelo and Goodwin, Procter & Hoar, Boston, Mass., were on brief for Cape Code Five Cents Savings Bank and David B. Willard.

Albert P. Zabin, Boston, Mass., with whom Schneider, Reilly, Zabin, Connolly & Costello, P.C., Boston, Mass., was on brief for The Orleans Bd. of Trade.

Before COFFIN, RUBIN ^* and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

In this, the third lawsuit arising out of the refusal of the Orleans Board of Selectmen to issue entertainment and liquor licenses for the operation of a disco, plaintiff Isaac Manego appeals the district court's grant of summary judgment for the defendants, 598 F.Supp. 231 (D.C.Mass.1984). This complaint alleges an illegal conspiracy to restrain trade under the Sherman Antitrust Act, 15 U.S.C. Sec. 1 et seq. (1982). Summary judgment for defendants David B. Willard and the Cape Cod Five Cents Savings Bank was granted under the doctrine of res judicata. Summary judgment for defendant Orleans Board of Trade and its members was granted on the ground that there was "no genuine issue of fact which, if proven by the plaintiff, would constitute an exception to the Noerr-Pennington Doctrine." We affirm.

In late 1978 and early 1979, Manego applied to the Orleans Board of Selectmen for entertainment and liquor licenses for a disco which he wanted to build on a vacant lot. The lot was located in a commercial district a few hundred feet from an ice skating rink. The rink at that time was primarily used by children for hockey and figure skating. During the winter there was also a "Disco on Ice" program for children under sixteen. As a result of a mortgage foreclosure, the Cape Cod Five Cents Savings Bank owned the rink from 1978 until July 1979. The vice-president of the bank, David Willard, served as general manager of the rink during this period. As owner of the rink, the bank was concerned about the close proximity of an establishment serving liquor to a recreational facility primarily patronized by children and the increased likelihood of automobile accidents involving inebriated drivers and children walking to and from the rink. The bank also had more general concerns about the presence of a disco in the area.

In January of 1979, there was a meeting of the Orleans Board of Trade, a private organization which functions as the chamber of commerce for the town. At that time, Willard was also the president of the Board of Trade. Membership in this organization is open to anyone who pays the $15.00 membership fee. Willard raised the issue of the proposed disco at the meeting and after some discussion the membership voted to oppose the disco.

On January 11, 1979, a public hearing on Manego's liquor license application was held by the Orleans Board of Selectmen. Two of the selectmen, Gaston Norgeot and Thomas Nickerson, were also members of the Board of Trade. Over 100 people attended the meeting and expressed concern over the increased traffic and noise which would result from the disco as well as the effect of an establishment serving liquor in close proximity to the skating rink and the general effect of a disco on the atmosphere of the Town of Orleans. The Board of Selectmen received a petition containing 369 signatures opposing the disco and eleven letters, only two of which favored Manego's proposal. At the hearing, Willard announced that the Board of Trade had voted to oppose granting a license for the disco.

On February 8, 1979, the Selectmen denied Manego's application for a liquor license and Manego appealed this decision to the Board of Appeals, which met on February 8 and 14. Willard wrote a letter to the Board of Appeals setting forth the bank's opposition to the disco and its concern for the safety of the youngsters using the skating rink. Local counsel for the bank attended the Board of Appeals hearings. In late February, the Board of Appeals denied Manego's appeal.

On February 13, 1979, the Orleans Board of Trade held its monthly meeting and, according to the minutes, mention was made of a hearing scheduled for the next day on Manego's amusement license application and of Manego's appeal of the denial of the liquor license application by the Selectmen. At the February 14 amusement license hearing, the Selectmen requested that the Town Traffic Safety Committee study the effects of the proposed disco. On February 22, 1979, the Selectmen turned down Manego's application for an amusement license.

In spite of these license denials, the Orleans Board of Appeals granted Manego a building permit in May of 1979. The bank then filed suit in Barnstable Superior Court challenging the issuance of this permit. In July of 1979, the bank sold the rink to Paul Thibert and sometime in August withdrew its superior court suit.

In March of 1979, the entertainment license of the rink expired; no renewal was sought until July of 1979, after Thibert purchased the rink. Because the license had lapsed, the application was treated as a new application and not a renewal and a public hearing was held. During that summer, a concrete floor had been poured at the rink to allow roller skating so the new application added roller skating to the proposed activities of the facility. In addition, the rink planned to offer a ballroom dancing program for adults featuring live music from the 1940's and refreshments in the nature of soft drinks. This, too, was an addition to the rink's activities. The rink's application was granted by the Selectmen. Among the reasons cited by the Selectmen for their approval were its unique status as the only skating facility on the Lower Cape, its use by young people as safe and "noncorrupting" entertainment and the lack of noise or traffic problems created by the facility.

In his first lawsuit arising out of these events, Manego sought a writ of mandamus in superior court to compel the Board of Selectmen to issue him liquor and amusement licenses, claiming that the denial was arbitrary and capricious (Manego I ). His affidavit stated that the real reason for the denial of the license was based upon his race (Manego is black) and that this was demonstrated by the fact that six months later a license to operate a similar business was granted to a white person. This suit was dismissed upon the motion of the Selectmen.

Manego brought a second lawsuit in federal district court (Manego II ), naming the Board of Selectmen, the Cape Cod Five Cents Savings Bank and Willard as defendants and claiming that they had conspired to deny him the licenses because of his race in violation of 42 U.S.C. Secs. 1981, 1983, 1985, 1986, 1988, 2000e et seq., Sec. 3605 of the Fair Housing Act, and Mass.Gen.Laws Ann. ch. 151B, Sec. 4(3B). The claims under 42 U.S.C. Secs. 2000e et seq., the Fair Housing Act, and the state law claims were all dismissed by the district court for failure to state a cause of action. As to the other claims, the Board of Selectmen moved for summary judgment on the grounds that these claims were barred by the doctrines of res judicata and collateral estoppel. The district court rejected this argument because "claims made here were neither fully argued or adjudicated in the state proceeding." As part of our appellate review of the district court's opinion in Manego II, we noted in passing that the "proper test for the applicability of res judicata is not whether the plaintiff in fact argued his constitutional claims in the state proceedings, but whether he could have." Manego v. Cape Cod Five Cents Savings Bank, 692 F.2d 174, 175 (1st Cir.1982). We did not decide this issue, however, because we based our affirmation of the district court's grant of summary judgment upon the district court's determination that Manego had not provided even a "promise of evidence" that defendants were involved in a conspiracy to deny him the licenses because of his race.

The district court in Manego II found that despite being given an extra ninety days to produce some concrete, factual basis for his allegation of conspiracy, which defendants had affirmatively denied in their affidavits, Manego produced only the following: two personal affidavits explaining his theory and suggesting that direct evidence of the conspiracy would emerge under cross-examination and a third affidavit of a local building contractor employed by Manego reporting that he had heard that a lumber company had been told by the Bank not to supply Manego with materials and vaguely suggesting that his own relationship with the bank had been adversely affected by his association with Manego. The district court found that since Manego had not taken advantage of an "ample opportunity" to take depositions or conduct any other form of discovery, his promise of evidence arising out of cross-examination was pure speculation, and that, furthermore, the affidavit of the building contractor could not be given any weight because it consisted primarily of hearsay.

In our opinion affirming the district court's grant of summary judgment on this ground, we said:

In this case, plaintiff sought to infer the existence of an illegal conspiracy from the fact that the Selectmen granted a license to someone who was white but not to plaintiff, who was black. His inference is supported only by affidavit evidence of a general racial animus in the community. The fact that a group of private citizens, organized as the Orleans Board of Trade, voted...