## F I L E D United States Court of Appeals Tenth Circuit 

### APR 19 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GF GAMING CORPORATION, doing business as Famous Bonanza and as Easy Street Casino, a Colorado corporation; BLUE SPRUCE INVESTMENT CORPORATION, a Colorado corporation; GRIMES GAMING CORPORATION, a Colorado corporation; ANNIE OAKLEY’S EMPORIUM, INC., a Colorado corporation; EUREKA CREEK DEVELOPMENT, INC., a Colorado corporation; BABY DOE DEVELOPMENT, INC., a Colorado corporation; PROLAND MANAGEMENT, LLC, a Colorado corporation; SHEFTEL CHARITABLE REMAINDER UNITRUST, an entity domiciled in Colorado; WILHELM LORENZ, individually, Plaintiffs, and No. 04-1177-2-

GALACTIC GAMING, INC., a Nevada corporation, Plaintiff-Appellant,

v. CITY OF BLACK HAWK, COLORADO, a home rule city and municipal corporation of Colorado; BLACK HAWK CASINO OWNERS ASSOCIATION, a Colorado political committee; HORSESHOE CASINO, LLC, doing business as Canyon Casino, a Colorado limited liability company; BLACK HAWK BREWERY AND CASINO, LLC, doing business as Mardi Gras Casino, a Colorado limited liability company; BLACK HAWK GAMING AND DEVELOPMENT CO., INC., a Colorado corporation; BLACK HAWK DEVELOPMENT NORTH, LLC, a Colorado limited liability company; BH GATEWAY, LLC, doing business as Jackpot Springs, a Colorado limited liability company; PROSPECTOR 141, LLC, a Colorado limited liability company; WOODMONT DEVELOPMENT COMPANY, INC., a Texas corporation; KATHRYN ECCKER, individually and in her official capacity as Mayor of the City of Black Hawk; JAMES S. MALONEY, individually and in his official capacity as City Attorney for the City of Black Hawk; LYNNETTE-3-

HAILEY, individually and in her official capacity as City Manager for the City of Black Hawk; SUSAN BARNES, an individual domiciled in Colorado, MEDILL BARNES, an individual domiciled in Colorado; LARY P. BROWN, an individual domiciled in Colorado; PHYLLIS BROWN, an individual domiciled in Colorado; HERBERT W. BOWLES, an individual domiciled in Colorado, Defendants-Appellees.

GF GAMING CORPORATION, doing business as Famous Bonanza and as Easy Street Casino, a Colorado corporation; BLUE SPRUCE INVESTMENT CORPORATION, a Colorado corporation; GRIMES GAMING CORPORATION, a Colorado corporation; ANNIE OAKLEY’S EMPORIUM, INC., a Colorado corporation; EUREKA CREEK DEVELOPMENT, INC., a Colorado corporation; BABY DOE DEVELOPMENT, INC., a Colorado corporation; PROLAND MANAGEMENT, LLC, a Colorado corporation; SHEFTEL CHARITABLE REMAINDER UNITRUST, an entity domiciled in Colorado; WILHELM LORENZ, individually, Plaintiffs-Appellants, No. 04-1178-4-

and GALACTIC GAMING, INC., a Nevada corporation, Plaintiff,

v. CITY OF BLACK HAWK, COLORADO, a home rule city and municipal corporation of Colorado; BLACK HAWK CASINO OWNERS ASSOCIATION, a Colorado political committee; HORSESHOE CASINO, LLC, doing business as Canyon Casino, a Colorado limited liability company; BLACK HAWK BREWERY AND CASINO, LLC, doing business as Mardi Gras Casino, a Colorado limited liability company; BLACK HAWK GAMING AND DEVELOPMENT CO., INC., a Colorado corporation; BLACK HAWK DEVELOPMENT NORTH, LLC, a Colorado limited liability company; BH GATEWAY, LLC, doing business as Jackpot Springs, a Colorado limited liability company; PROSPECTOR 141, LLC, a Colorado limited liability company; WOODMONT DEVELOPMENT COMPANY, INC., A Texas corporation; KATHRYN ECCKER, individually and in her official capacity as Mayor of the City of Black Hawk; JAMES S. MALONEY,-5-

individually and in his official capacity as City Attorney for the City of Black Hawk; LYNNETTE HAILEY, individually and in her official capacity as City Manager for the City of Black Hawk; SUSAN G. BARNES, an individual domiciled in Colorado; MEDILL BARNES, an individual domiciled in Colorado; LARY P. BROWN, an individual domiciled in Colorado; PHYLLIS BROWN, an individual domiciled in Colorado; HERBERT W. BOWLES, an individual domiciled in Colorado, Defendants-Appellees.

Appeal from the United States District Court

for the District of Colorado (D.C. No. 01-D-964 (MJW))

Diane Vaksdal Smith, Burg, Simpson, Eldredge, Hersh & Jardi ne, P.C., Englewood, Colorado (David P. Hersh, Burg, Simpson, Eldredge, Hersh & Jardine, P.C., Englewood, Colorado, John F. Reha, A rckey & Reha, LLC, Littleton, Colorado, with her on the briefs), for P laintiffs-Appellants. Robert F. Hill, Hill & Robbins, P.C., Denver, Color ado (Jennifer H. Hunt, Hill & Robbins, P.C., Denver, Colorado, with him on the br ief), for DefendantsAppellees

. Scott D. Albertson and Eric E. Torgersen, Holley, A lbertson & Polk, P.C., filed a brief for Defendant-Appellee Woodmont Devel opment Company.1 Limited gaming is defined as “the use of slot machi nes and the card games

of blackjack and poker, each game having a maximum single bet of five dollars.” Colo. Const. art. XVIII, § 9(4)(b).
-6- Before LUCERO , McKAY , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.

I. INTRODUCTION Plaintiffs-appellants, consisting mainly of busines ses and property owners in and around the Colorado city of Central City, su ed the neighboring city of Black Hawk; Black Hawk’s mayor, city attorney, and city manager; and several casinos, associations, and individuals primarily inand around Black Hawk. Plaintiffs allege that defendants engaged in a cons piracy to restrain and monopolize trade in the limited gaming industry 1 in Gilpin County, Colorado, in violation of federal and state antitrust laws. The United States District Court for the District of Colorado granted defendants’ motionto dismiss pursuant to Fed. R. Civ. P. 12(b)(6). This court has jurisdiction unde r 28 U.S.C. § 1291. Because plaintiffs’ claims for injunctive and declaratory r elief became moot after the district court entered judgment in this case and de fendants are immune from the remaining claims for damages, this court concludes that the complaint fails to state a claim on which relief can be granted. The decision of the district court is2 Plaintiffs’ claims were dismissed by the district c ourt pursuant to Fed. R.

Civ. P. 12(b)(6), and this court therefore “must take as true all well-pleaded allegations in the plaintiff’s complaint.” Curtis Ambulance of Fla., Inc. v. Bd. of County Comm’rs , 811 F.2d 1371, 1374 (10th Cir. 1987). Accordingl y, the factual background in this case will be drawn from plaintif fs’ second revised third amended complaint, which is the operative pleading here.
-7- vacated as to the claims for injunctive and declaratory re lief and affirmed as to the claims for damages. The district court’s decis ion to dismiss certain state-law claims with prejudice is also affirmed

. II. BACKGROUND 2 Pursuant to the Colorado constitution, limited gami ng is permitted in the state of Colorado only in the cities of Central City, Black Hawk, and Cripple Creek. Colo. Const. art. XVIII, § 9(1). Central C ity and Black Hawk are neighboring towns located approximately twenty-five miles west of Denver. At the time the complaint was filed, visitors could re ach Central City only by taking Highways 119 and 279 through Black Hawk. Plaintiff s allege that casino customers passing through Black Hawk on their way t o Central City often faced highway construction and detours engineered by Blac k Hawk in an attempt to divert passengers away from Central City and into i ts own casinos. To avoid the continuing loss of business to Black H awk, Central City began planning a new highway known as the “southern acces s road” that would bypass Black Hawk and provide direct access to Central City from Interstate 70. A3 The Colorado constitution provides:

No unincorporated area may be annexed to a municipa lity unless one of the following conditions first has been met: (a) The question of annexation has been submitted t o the vote of the landowners and the registered electors in the area proposed to be annexed, and the majority of such persons voting onthe question have voted for the annexation; or (b) The annexing municipality has received a petiti on for the annexation of such area signed by persons comprisin g more than fifty percent of the landowners in the area and owning mo re than fifty percent of the area, excluding public streets, and alleys and any land owned by the annexing municipality; or (c) The area is entirely surrounded by or is solelyowned by the annexing municipality. Colo. Const. art. II, § 30(1).

-8- substantial portion of the area necessary for construction of the road was owned by Proland Management, LLC (“Proland”), which desir ed to annex its property to Central City in order to obtain municipal services. Central City began negotiating an agreement with Proland under which the property would be annexed and Proland would in turn pay for construction of the p ortion of the road crossing its property. Under the Colorado constitution, municipalities maynot annex land without the agreement of more than fifty percent of the lan downers in the area to be annexed. Colo. Const. art. II, § 30(1)(b). 3 Proland acquired sufficient signatures-9-

to satisfy the requirements of the constitution andsubmitted its annexation petition to Central City. In an attempt to block P roland’s petition, Black Hawk allegedly conspired with the other defendants to pu rchase with public funds four mining claims located within the area of the propos ed annexation. Shortly before Central City’s scheduled hearing on the petition, B lack Hawk then sold undivided one-percent interests in the mining claims to fourt een individuals and business entities for $500 each. These conveyances were sty led as “open space preservation agreements,” but plaintiffs allege that their actual purpose was to create enough landowners in the area of the propose d annexation to cause the percentage of landowners approving of the annexatio n to drop below fifty percent. The petition was thereby defeated, and Black Hawk i nstructed the holders of the mining claims to reconvey their interests back to t he city. The complaint further alleges that Black Hawk press ured landowner H. Thomas Winn to drop his petition to include a porti on of his property in the annexation by threatening not to issue a certificat e of occupancy for a casino Winn was planning to open in Black Hawk. When Winnwithdrew his petition, the contiguity necessary for annexation was destroy ed. Winn’s withdrawal, combined with the defeat of Proland’s annexation pr oposal, led Proland to abandon its annexation efforts and its offer to fun d construction of the road.-10-

Plaintiffs contend that once the road had been bloc ked, Black Hawk grew to dominate the limited gaming market in Gilpin Cou nty while casinos and related business in Central City fell into serious decline. A grand jury investigating the conveyances of the undivided interest in the mining claims concluded that Black Hawk’s actions violated the spirit of the Colorado constitution and election laws. The grand jury’s report also concluded that the act ions of Black Hawk city officials constituted “misfeasance or malfeasance” and “misuse or misapplication of public funds.” Because the practices were not s pecifically prohibited by state law, however, the grand jury did not return an indi ctment. Plaintiffs filed suit in the District of Colorado, raising a variety of claims under the Sherman Act, 15 U.S.C. §§ 1, 2; the Color ado Antitrust Act, Colo. Rev. Stat. §§ 6-4-104, 6-4-105; the Racketeer Influencedand Corrupt Organizations Act, 18 U.S.C. § 1962; the Colorado Organized Crime Control Act, Colo. Rev. Stat. § 18-17-104; and Colorado contract and tort l aw. Plaintiffs requested declaratory and injunctive relief, compensatory dam ages, treble damages, punitive damages, costs, and attorneys’ fees. Through a ser ies of procedural rulings by the district court and voluntary withdrawal of some of the claims by plaintiffs, the district court dismissed all of plaintiffs’ claims except those based on federal and state antitrust law. The court then held a hearing on the remaining issues and granted defendants’ motion to dismiss the Sherman A ct claims pursuant to Rule4 Plaintiffs also argue the district court erred in d eclining to dismiss certain

state-law tort claims without prejudice. See infraSection IV.E.
-11- 12(b)(6). The court elected not to exercise supple mental jurisdiction over the Colorado Antitrust Act claims and dismissed these c laims without prejudice. On appeal, plaintiffs challenge only the dismissal of their Sherman Act and Colorado Antitrust Act claims. 4
III. STANDARD OF REVIEW This court reviews de novo the dismissal of a complaint under Rule 12(b)(6). S. Disposal, Inc. v. Texas Waste Mgmt. , 161 F.3d 1259, 1261-62 (10th Cir. 1998). In doing so, all facts alleged in the complaint are taken as true and all reasonable inferences are indulged in favor of the plaintiffs. Curtis Ambulance of Fla., Inc. v. Bd. of County Comm’rs , 811 F.2d 1371, 1374-75 (10th Cir. 1987).
IV. DISCUSSION Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in r estraint of trade or commerce among the several States.” 15 U.S.C. § 1. Section 2 of the Sherman Act prohibits “monopoliz[ing], or attempt[ing] to monopolize, or combin[ing] or conspir[ing] with any other person or persons, to monopolize anypart of the trade or commerce among the several States.” 15 U.S.C. § 2. Plaintiffs’ second revised third amended complaint alleges that defendants vio lated both of these statutory5 The complaint also contains allegations that Black Hawk’s Las Vegas-style

casinos violate a provision of the Colorado constitution requiring limited gaming to be conducted in structures conforming to the arc hitectural styles of the state’s historic gambling towns. Colo. Const. art. XVIII, § 9(3)(b). Plaintiffs, however, explicitly disavowed reliance on these allegations in the district court. Plaintiffs similarly disavowed reliance on allegations that Bl ack Hawk frequently engaged in road construction and detours in an effort to de ter prospective Central City customers. Although they attempt to revive these a llegations on appeal, this court will not consider arguments waived or abandoned in the district court. O’Connor v. City & County of Denver , 894 F.2d 1210, 1214 (10th Cir. 1990). Furthermore, plaintiffs did not argue before the di strict court and do not argue on appeal that their antitrust claims are sup ported by allegations in the complaint that defendants threatened other unnamed property owners with “adverse consequences” if they did not assist the e ffort to defeat the annexation, interfered with city council elections, threatened Central City with protracted litigation if the annexation was completed, present ed “sham” objections in opposition to the proposed annexation, and interfer ed with the sale of municipal bonds. Accordingly, this court will not consider these allegations in deciding whether the complaint can survive a motion to dismi ss under Rule 12(b)(6).

6 Plaintiffs argue the district court erred in failin g to consider the contents of the grand jury report attached to the complaint in deciding whether the complaint stated an antitrust claim. Written docum ents attached to a complaint are properly treated as part of the pleadings for p urposes of ruling on a motion to dismiss. Hall v. Bellmon , 935 F.2d 1106, 1112 (10th Cir. 1991). The distri ct court, however, specifically stated at the hearing on the Rule 12(b)(6) motion that it had referred to the report when considering the sufficiency of plaintiffs’ claims. In any event, this court has consulted the report a nd concludes that the grand jury’s findings are merely redundant to the allegat ions in the complaint. See Issa (continued...)
-12- provisions by (1) purchasing and subdividing the mi ning claims in order to block Proland’s annexation petition, and (2) pressuring W inn to pull out of the proposed annexation. 5 In dismissing plaintiffs’ Sherman Act claims, the district court concluded the complaint did not state sufficiently specific allegations of antitrust injury to confer standing on the plaintiffs. 6 The court also concluded that some of6 (...continued)

v. Comp USA , 354 F.3d 1174, 1178 (10th Cir. 2003) (“[B]ecause the legal sufficiency of a complaint is a question of law, we may affirm the district court’s dismissal order if we independently determine that plaintiff failed to state a claim.” (quotation, citation, and alteration omitte d)).
-13- the defendants were immune from antitrust liabilityunder the Noerr-Pennington doctrine. This court can affirm the district court’s dismissa l on any ground sufficiently supported by the record. Issa v. Comp USA , 354 F.3d 1174, 1178 (10th Cir. 2003). For somewhat different reasons than those relied on by the district court, this court also concludes that the complaint fails to state a claim on which relief can be granted. A. Injunctive and Declaratory Relief This court need not reach the merits of plaintiffs’ claims for injunctive and declaratory relief because those claims became mootafter the district court entered judgment in this case. Plaintiffs acknowle dged at oral argument that Central City completed building the southern access road after the district court dismissed the case, and that their claims for injun ctive relief have therefore become moot. In addition, the claims for declarato ry relief have also become moot because a declaratory judgment would no longerhave any effect on defendants’ behavior. See Utah Animal Rights Coalition v. Salt Lake City Corp. , 371 F.3d 1248, 1256-57 (10th Cir. 2004) (holding th at an action for declaratory7 The non-governmental defendants are the Black Hawk Casino Owners

Association; Horseshoe Casino, LLC d/b/a Canyon Cas ino; Black Hawk Brewery and Casino, LLC d/b/a Mardi Gras Casino; Black HawkGaming and Development Co., Inc.; Black Hawk Development North, LLC; BH Gateway, LLC d/b/a Jackpot Springs; Prospector 141, LLC; Woodmont Development Co., Inc.; Susan Barnes; Medill Barnes; Lary Brown; Phyllis Brown; and Herbe rt Bowles.
-14- relief was moot when the requested declaration invo lved past conduct not likely to recur). Without expressing any opinion on the m erits, this court therefore dismisses plaintiffs’ claims for injunctive and dec laratory relief and vacates the judgment of the district court as to these claims.
B. Noerr-Pennington Immunity In addition to their claims for injunctive and decl aratory relief, plaintiffs also request monetary relief including compensatorydamages, treble damages, punitive damages, costs, and attorneys’ fees. To t he extent these claims are based on allegations that the non-governmental defendants 7conspired with Black Hawk officials to block the proposed annexation, the cla ims are barred by the NoerrPennington doctrine. The Noerr-Pennington doctrine was established by the Supreme Court in a line of cases beginning withE. R.R. Presidents Conference v. Noerr Motor Freight, Inc . 365 U.S. 127 (1961). The Court in these cases h as held that “[t]he federal antitrust laws [] do not regulate the condu ct of private individuals in seeking anticompetitive action from the government. ” City of Columbia v. Omni8 These claims are discussed in Section IV.C.b, infra

. -15- Outdoor Adver., Inc. , 499 U.S. 365, 379-80 (1991). The doctrine arises from the Court’s conclusion that the Sherman Act was not int ended to derogate the First Amendment right of citizens to petition the governm ent for a redress of grievances. Noerr , 365 U.S. at 136-39. Aside from the allegations that certain defendants purchased interests in mining claims from the city, 8 there are no allegations in the complaint that non

governmental defendants engaged in any anticompetit ive act other than the act of conspiring with Black Hawk officials. The complaint alleges that it was the city of Black Hawk, not the private defendants, that acq uired the mining claims, divided them, and sold them with the purpose of blo cking the proposed annexation. In addition, the complaint alleges that the decision whether to issue a certificate of occupancy to Winn “rested exclusivel y with Defendant Black Hawk” and that it was “Black Hawk, through its elected an d/or appointed officials” that pressured Winn to pull out of the proposed annexati on. Standing alone, plaintiffs’ allegations that the no n-governmental defendants conspired with Black Hawk officials to block the so uthern access road is essentially an allegation that defendants met with city officials and urged them to take anticompetitive action. For purposes of Noerr-Pennington , there is no distinction between petitioning government official s and conspiring with them.-16-

City of Columbia , 499 U.S. at 375, 383 (“It would be unlikely that any effort to influence legislative action could succeed unless o ne or more members of the legislative body became . . . co-conspirators in some sense with the private party urging such action.” (quotations omitted)); Boone v. Redevelopment Agency , 841 F.2d 886, 894 (9th Cir. 1988) (“[C]ultivating close ties with government officials is the essence of lobbying.”). The defendants’ all eged conspiracy with Black Hawk therefore amounts to nothing more than lobbyin g of government officials, which is immune from Sherman Act liability under th e Noerr-Pennington doctrine. Plaintiffs’ argument that defendants’ alleged consp iracy was undertaken solely for the purpose of restraining trade is irre levant, because “Noerr shields from the Sherman Act a concerted effort to influenc e public officials regardless of intent or purpose.” United Mine Workers v. Pennington , 381 U.S. 657, 670 (1965); see also City of Columbia , 499 U.S. at 380 (“That a private party’s political motives are selfish is irrelevant . . . . ”). Even if defendants’ sole motive for petitioning the Black Hawk officials was to inj ure competition, the conduct would still be protected by the Noerr-Pennington doctrine. See Noerr , 365 U.S. at 138-40. Nor does Noerr ’s “sham” exception apply to this case. The sham exception is applicable when “persons use the governmental process– as opposed to the outcome of that process–as an anticompetitive weapon.” City of Columbia ,9 Plaintiffs’ citation to FTC v. Superior Court Trial Lawyers Ass’n is

inapposite. 493 U.S. 411 (1990). In that case, pl aintiffs alleged that courtappointed defense attorneys had engaged in an antic ompetitive boycott in order to force the District of Columbia government to increa se their compensation. Id. at 414. Unlike Superior Court Trial Lawyers Ass’n , the alleged restraint of trade in this case was not the “ means by which [defendants] sought to obtain favorable legislation,” but rather the “intended consequence of public action.” Id. at 425- 26. -17- 499 U.S. at 380. The exception thus “involves a de fendant whose activities are not genuinely aimed at procuring favorable governme nt action at all,” such as a defendant who files “frivolous objections to the li cense application of a competitor, with no expectation of achieving denial of the license but simply in order to impose expense and delay.” Id. (quotation omitted). In this case, however, it was the outcome of defendants’ lobbying (i.e., Black Hawk’s decision to block the annexation petition) rather than the p rocess of that lobbying that gives rise to the alleged antitrust injuries. The sham exception is therefore inapplicable here, and the non-governmental defenda nts are immune from liability under Noerr-Pennington for their petitioning of the Black Hawk officials. 9
C. Local Government Antitrust Act a. The Black Hawk Officials Although the Noerr-Pennington doctrine establishes that the nongovernmental defendants are not liable for requesti ng that Black Hawk engage in anticompetitive activities, it does not resolve the question whether city officials10 In addition to Eccker, Hailey, and Maloney, the city of Black Hawk was

also named as a defendant in the initial complaint but was later dismissed as a party on plaintiffs’ initiative. The trial court a lso dismissed claims against Aldermen David Spellman, Haller Midcap, and Tom Kerr, who were identified in the original complaint as agents of defendant BlackHawk Development North, LLC. Without supporting argument, plaintiffs ask t his court to reinstate the claims asserted against these three defendants as a gents of Black Hawk. This court declines the invitation to reinstate these de fendants in light of its conclusion that Black Hawk officials are in any event immune f rom liability under the Local Government Antitrust Act of 1984.
-18- Kathryn Eccker, Lynnette Hailey, and James Maloney are liable for acceding to these requests. 10 Defendants’ claims for monetary relief against Bl ack Hawk officials, however, are nevertheless barred by the Local Government Antitrust Act of 1984. 15 U.S.C. §§ 34-36 (“LGAA”). Congress passed the LGAA in response to “an increas ing number of antitrust suits, and threatened suits, that could u ndermine a local government’s ability to govern in the public interest.” See Tarabishi v. McAlester Reg’l Hosp. , 951 F.2d 1558, 1564 (10th Cir. 1991) (quotation omi tted). The act provides that “[n]o damages, interest on damages, costs, or attorney’s fees may be recovered under section 4, 4A, or 4C of the Clayton Act (15 U .S.C. 15, 15a, or 15c) from any local government, or official or employee there of acting in an official capacity.” 15 U.S.C. § 35(a). The provisions of t he Clayton Act cited by the LGAA provide the private damages remedy for violati on of the Sherman Act. Crosby v. Hosp. Auth. , 93 F.3d 1515, 1536 (11th Cir. 1996). According t o the-19-

complaint, Eccker, Hailey, and Maloney were at “all times relevant” the mayor, city attorney, and city manager of Black Hawk. The se defendants are therefore “official[s] or employee[s]” of local government an d are immune from damages for violations of the Sherman Act. Plaintiffs nevertheless argue the city officials we re not “acting in an official capacity” within the meaning of the LGAA b ecause they acted beyond the scope of their authority and pursuant to their pers onal interests when they entered into a conspiracy to block the southern access road . The legislative history of the LGAA, however, demonstrates that Congress intended the phrase “acting in an official capacity” to be given broad meaning encomp assing all “lawful actions, undertaken in the course of a defendant’s performan ce of his duties, that reasonably can be construed to be within the scope of his duties and consistent with the general responsibilities and objectives of his position.” Sandcrest Outpatient Svcs., P.A. v. Cumberland County Hosp. S ys., Inc. , 853 F.2d 1139, 1145 (4th Cir. 1988). In this case, plaintiffs do not allege that the city officials lacked the authority to cause the city of Black Haw k to sell the undivided interests in the mining claims or to withhold Winn’ s certificate of occupancy. Their only contention is that in exercising these l egitimate powers the city officials acted pursuant to an illegitimate motive. The LGAA, however, “makes no provision for consideration of a defendant’s mot ives.” Id. at 1146 (rejecting11 The complaint alleges that the following defendants purchased undivided

one-percent interests in the mining claims in excha nge for payments of $500: Susan Barnes, Medill Barnes; Lary Brown; Phyllis Br own; Herbert Bowles; Geraldine Bowles; Eagle Gaming, LLC; Black Hawk Bre wery, LLC; 101 Main Street, LLC; Black Hawk Gaming and Development Co., Inc.; Black Hawk Development North, LLC; BH Gateway, LLC; Woodmont D evelopment Co., Inc.; and Prospector 141, LLC.
-20- the “argument that allegations of a conspiracy conv ert otherwise authorized conduct into unauthorized conduct”); see also Cohn v. Bond, 953 F.2d 154, 159 (4th Cir. 1991) (“An allegation of conspiracy is ak in to an allegation that [defendants’ conduct] was done in bad faith or withmalice,” which is “clearly irrelevant in determining the application of the im munity.” (quotation omitted)); Thatcher Enters. v. Cache County Corp. , 902 F.2d 1472, 1477 (10th Cir. 1990). For these reasons, this court concludes that the Bl ack Hawk officials are immune from monetary liability for Sherman Act viol ations.

b. The Private Defendants Although the Noerr-Pennington doctrine establishes that the nongovernmental defendants are not liable for their lo bbying of Black Hawk, it does not establish whether these defendants are also imm une to claims for monetary relief based on allegations that they purchased the undivided interests in mining claims for the purpose of blocking the proposed ann exation. 11 The purchase of these mining claims was allegedly an act independen t of the petitioning of Black Hawk officials and was not part of an attempt to in fluence government action.-21-

Because holding defendants’ liable for their purcha se of the mining interests would not implicate their First Amendment right to petition government, this activity is not subject to protection under the Noerr-Pennington doctrine. Like the Black Hawk officials, however, these defendants are nevertheless immune from monetary liability under the LGAA. The LGAA precludes monetary damages “in any claim a gainst a person based on any official action directed by a local go vernment.” 15 U.S.C. § 36(a). In determining whether the action of a private indi vidual constitutes “official action directed by a local government” for purposes of the LGAA, other circuits have applied by analogy the Supreme Court’s precede nts on the question whether a private individual’s action is entitled to state- action immunity under Parker v.
Brown , 317 U.S. 341 (1943). See Crosby , 93 F.3d at 1536; Cohn , 953 F.2d at 157; Sandcrest , 853 F.2d at 1143. In Parker , the Supreme Court held that the Sherman Act was not “intended to restrain state act ion or official action directed by a state.” Parker , 317 U.S. at 351. The Court subsequently extendedthe holding in Parker to private individuals acting at the direction of t he state, setting forth a two-part test for determining whether such an individual should not be subjected to liability. California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc. , 445 U.S. 97, 105 (1980). First, “the challenged restraint must be one clearly articulated and affirmatively expressed as state policy.” Id. (quotation-22-

omitted). Second, “the policy must be actively sup ervised by the State itself.” Id. (quotation omitted). The Conference Report to the LGAA, explicitly agree d to by both houses of Congress, explains that the phrase “official action directed by” found in Parker and subsequent cases interpreting it “shall apply b y analogy to the conduct of a local government in directing the actions of non-go vernmental parties, as if the local government were a state.” H.R. Conf. Rep. No . 98-1158, reprinted in 1984 U.S.C.C.A.N. 4602, 4627; see also Sandcrest , 853 F.2d at 1143. Applying the two-part test by analogy to the private defendants here, the relevant questions therefore become: (1) whether the challenged restra int was the clearly articulated and affirmatively expressed policy of Black Hawk, a nd (2) whether the policy was actively supervised by Black Hawk. See Crosby , 93 F.3d at 1536 (“[W]e apply by analogy the Parkerdoctrine to the relationship between the [local go vernment entity] (i.e., the entity under the LGAA which is a nalogous to the State in the state action immunity context) and the individual [ defendants] (i.e., the entities under the LGAA which are analogous to private parti es in the state action immunity context).”). The “clear articulation” requirement of Midcal ’s first prong is satisfied if the provisions in question “plainly show that the l egislature contemplated the kind of action complained of.” Town of Hallie v. City of Eau Claire , 471 U.S. 34, 44-23-

(1985) (quotations omitted). This requirement is m et by analogy in this case, when plaintiffs allege not only that Black Hawk con templated the anticompetitive effects of selling the mining interests, but that t he city affirmatively participated in the conspiracy to block construction of the road . The “active supervision” test of the second Midcalprong “requires that state officials have and exer cise power to review particular anticompetitive acts of privat e parties and disapprove those that fail to accord with state policy.” Patrick v. Burget , 486 U.S. 94, 101 (1988). The purpose of this test is “to determine whether t he State has exercised sufficient independent judgment and control so that the detail s of the [state action] have been established as a product of deliberate state i ntervention, not simply by agreement among private parties.” FTC v. Ticor Title Ins. Co. , 504 U.S. 621, 634-35 (1992). Here, because Black Hawk was the ow ner of the mining claims, it necessarily had the power to review and disapprove of the sale of the claims to the private defendants. The act of purchasing the undivided interests in the mining claims therefore constitutes “official actio n directed by a local government” for purposes of the LGAA. As with the city officials, plaintiffs’ allegations that the private defendants were engaged in a conspiracy to further private int erests is irrelevant to the question whether they are entitled to immunity unde r the LGAA. See City of Columbia , 499 U.S. at 374; Allright Colorado, Inc. v. City & County of Denver ,-24-

937 F.2d 1502, 1511 (10th Cir. 1991) (“The availabi lity of Parkerimmunity . . . does not depend on the subjective motivation of the individual actors.” (quotation omitted)). Regardless of their intent, the private defendants are therefore immune from liability under the LGAA for their purchase of the mining interests.
D. Colorado Antitrust Act Because the district court properly dismissed all o f plaintiffs’ federal claims, it was within its discretion in declining t o exercise supplemental jurisdiction over plaintiffs’ state-law claims unde r the Colorado Antitrust Act.
See 28 U.S.C. § 1367(c)(3); Exum v. United States Olympic Committee , 389 F.3d 1130, 1138-39 (10th Cir. 2004). The court therefor e did not err in dismissing the state antitrust claims without prejudice.
E. State-Law Tort Claims As a final matter, plaintiffs argue the district co urt erred in dismissing with prejudice its state-law claims for intentional inte rference with prospective business advantage, civil conspiracy, and intention al interference with contractual relations. Plaintiffs explicitly withdrew these cl aims with prejudice as to defendants David Spellman, Haller Midcap, Tom Kerr, Kathryn Eccker, James Maloney, and Lynnette Hailey. As to the remaining defendants, plaintiffs withdrew the claims without stating whether the withdrawal was to be with or without prejudice. The district court ordered the claims dismissed with prejudice.-25-

Plaintiffs then filed a motion for “clarification” of the district court’s order. The district court denied the motion and reasserted that the dismissal was with prejudice. Plaintiffs argue that voluntary dismissal of a clai m by a plaintiff is without prejudice “[u]nless otherwise stated in the notice of dismissal.” Fed. R. Civ. P. 41(a)(1). As defendants correctly point out, howev er, Rule 41(a)(1) applies only to a voluntary dismissal by a plaintiff that was fi led “at any time before service by the adverse party of an answer or of a motion for s ummary judgment,” or that is “signed by all parties who have appeared in the act ion.” Id. Otherwise, “an action shall not be dismissed at the plaintiff’s in stance save upon order of the court and upon such terms and conditions as the cou rt deems proper.” Fed. R. Civ. P. 41(a)(2). Because defendants filed answers prior to plaintiffs’ voluntary dismissal of their tort claims, plaintiffs conceded in the district court that a court order was necessary for the voluntary dismissal to be effective. For claims that must be dismissed pursuant to court order, Rule 41( a)(2) provides that the dismissal is to be without prejudice “[u]nless othe rwise specified in the order.” Id. In this case, the court’s order dismissing the to rt claims specified that dismissal was with prejudice as to all defendants. When a party seeking to voluntarily dismiss a claimpursuant to Rule 41(a)(2) is silent as to whether the dismissal shou ld be with or without prejudice,-26-

the district judge is required to interpret the mot ion one way or the other. United States ex rel Stone v. Rockwell Int’l Corp. , 282 F.3d 787, 810-11 (10th Cir. 2002). This court reviews the district court’s interpretat ion for abuse of discretion. Id. The district court in interpreting plaintiffs’ volu ntary dismissal here relied on the procedural history of the case, including plaintiff s’ apparent concession that the dismissal was with prejudice and failure to presentany arguments to the contrary. Plaintiffs present no explanation on appeal as to h ow the court abused its discretion in making this determination. This court therefore declines to reverse the district court on this ground.
V. CONCLUSION Because plaintiffs’ claims for injunctive and decla ratory relief became moot after the district court entered judgment in t his case, this court DISMISSES those claims for lack of jurisdiction and VACATES the judgment of the district
court as to those claims. This court AFFIRMS the judgment of the district court as to the claims for monetary relief and the dismis sal with prejudice of plaintiffs’ claims for intentional interference with prospectiv e business advantage, civil conspiracy, and intentional interference with contr actual relations.