920 F2d 936 Holley III v. Sea Farms of Norway Inc

920 F.2d 936

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Lee A. HOLLEY, III, Plaintiff-Appellant,
v.
SEA FARMS OF NORWAY, INC., Cypress Salmon Inc., Olympic Sea
Farm Inc., Domsea Farms Inc., Global Aqua-USA Inc., American
Aqua Foods Inc., Tailfin Inc., Scott McKay, a single man,
William Webb, husband and the marital community composed
thereof, John Pitts, an individual; et al. Defendants-Appellees.

No. 89-35781.

United States Court of Appeals, Ninth Circuit.

Submitted on Briefs Nov. 5, 1990.*
Decided Dec. 7, 1990.

Before SCHROEDER, FLETCHER and FARRIS, Circuit Judges.


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1

MEMORANDUM**

2

Appellant Lee A. Holley, III alleges that appellees drove him out of the fish farming industry as part of a conspiracy to control the market. Holley contends that appellees conspired to extend a moratorium on the development of fish farming projects in order to eliminate competition, raise prices artificially, and create a shortage of products. He asserts that these actions violate federal antitrust and civil rights statutes, and Washington consumer protection laws.

3

The thrust of Holley's federal claims, other than his civil rights claims, is that the San Juan County, Washington moratorium and the appellees' activities in support of it, constitute violations of the antitrust laws. Regardless of the anticompetitive effects of the moratorium, the appellees' efforts to obtain it are absolutely exempt from federal antitrust liability under the Noerr-Pennington doctrine. The Supreme Court has stated that individuals may lobby or make other focused efforts to obtain administrative results as an exercise of their first amendment rights. Allied Tube & Conduit Corp. v. Indian Head Inc., 486 U.S. 492, 499 (1988). Such attempts to lobby or petition a government body are absolutely immune from antitrust liability, even where directly aimed at eliminating competition. United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136 (1961). Holley's only concrete allegations relate to the appellees' efforts to lobby San Juan County officials to continue the fish farming moratorium. This is the kind of lobbying activity that falls squarely within the Noerr-Pennington doctrine.

4

Holley's allegation that appellees' lobbying efforts were "sham" is insufficient to invoke the "sham exception" to the Noerr-Pennington doctrine. See California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972). Where a party attempts to secure some governmental action and then succeeds in securing it, "there is no conceivable basis for arguing that [this] conduct was a sham rather than a genuine effort to influence legislative action." Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d 220, 232 (7th Cir.1975). Holley has not demonstrated any reason why the Noerr-Pennington doctrine should not apply, and his action was properly dismissed. Boone v. Redevelopment Agency, 841 F.2d 886, 894 (9th Cir.), cert. denied, 488 U.S. 965 (1988).

5

Holley's complaint also includes claims under section 3 of the Clayton Act, alleging exclusive supply arrangements among the appellees. The district court properly dismissed this claim. Despite being given the opportunity to amend, Holley failed to allege sufficient information, such as the types of goods involved, the relevant market, or Holley's standing, to make out a section 3 claim. Similarly, Holley's Robinson-Patman Act claims are insufficient to state a cause of action, neglecting to state which products are involved, who favored and disfavored purchasers are, and what methods of discrimination were used; therefore, these claims were properly dismissed.

6

Holley's complaint also alleges violations of sections 1983, 1985 and 1986 of the Civil Rights Act. Section 1983 requires the existence of state action. 42 U.S.C. Sec. 1983. Here, the vast majority of the appellees are private parties, and Holley fails to describe how they acted under color of law. Only two appellees, Pitts and Pettibone, are employees of Washington State and demonstrate the requisite state action. However, Holley fails to show how Pitts or Pettibone deprived him of any cognizable statutory or constitutional right. For example, Holley alleges that his civil rights were violated by their refusal to answer Holley's phone calls, by their "frequently being out of the office," and in their expression of unspecified "opinions." The magistrate's report properly characterized these allegations as "wholly inadequate" to state a claim for violation of federal rights.

7

Section 1985 prohibits two or more persons from engaging in a conspiracy to interfere with an individual's civil rights. Specifically, subsection 1 prohibits an individual from conspiring with a federal officer to prevent that officer from performing her duties; subsection 2 prohibits a conspiracy to obstruct justice by intimidating a party or witness to a judicial proceeding; and subsection 3 prohibits discrimination on the basis of race or class. 42 U.S.C. Sec. 1985. While Holley alleges many conspiracies in his complaint, he does not allege any facts that would violate section 1985. No federal officer is named; the only proceedings involved are administrative in nature; and Holley has not defined an appropriate class. Bretz v. Kelman, 773 F.2d 1026, 1027-28 (9th Cir.1985). In addition, Holley's complaint is deficient because it contains no more than conclusory allegations of a conspiracy, without any specific factual assertions. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.1982). Thus Holley's section 1985 claim was properly dismissed.


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8

Finally, Holley alleges violations of section 1986, which applies only when a cause of action exists under section 1985 to redress a conspiracy to violate civil rights. Because Holley has failed to state a section 1985 claim, he cannot recover under section 1986. Williams v. St. Joseph Hosp., 629 F.2d 448, 452 (7th Cir.1980).

9

Holley alleges violations of the Washington State Consumer Protection Act, Wash.Rev.Code Secs. 19.86.010-050, and other unspecified state statutes. Since Holley has failed to state any federal claim for relief, we affirm the district court's dismissal of his state law claims for lack of jurisdiction. Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir.1985).

10

The appellees' request for sanctions is denied.

11

AFFIRMED.

*

The panel finds this case appropriate for submission without argument pursuant to Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3