FILED 

United States Court of Appeals 

Tenth Circuit 

PUBLISH APR 19 2005 

UNITED STATES COURT OF APPEALS PATRICK FISHER 

Clerk 

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 

Appellate Case: 04-1178 Document: 010110562700 Date Filed: 04/19/2005 Page: 1
GALACTIC GAMING, INC., a 

Nevada corporation, 

Plaintiff-Appellant, 

V. 

CITY OF BLACK HA WK, 

COLORADO, a home rule city 

and municipal corporation of 

Colorado; BLACK HA WK CASINO 

OWNERS ASSOCIATION, a 

Colorado political committee; 

HORSESHOE CASINO, LLC, doing 

business as Canyon Casino, a 

Colorado limited liability company; 

BLACK HA WK BREWERY AND 

CASINO, LLC, doing business as 

Mardi Gras Casino, a Colorado limited 

liability company; BLACK HA WK 

GAMING AND DEVELOPMENT 

CO., INC., a Colorado corporation; 

BLACK HA WK 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 

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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 

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and 

GALACTIC GAMING, INC., a 

Nevada corporation, 

Plaintiff, 

V. 

CITY OF BLACK HA WK, 

COLORADO, a home rule city 

and municipal corporation of 

Colorado; BLACK HA WK CASINO 

OWNERS ASSOCIATION, a 

Colorado political committee; 

HORSESHOE CASINO, LLC, doing 

business as Canyon Casino, a 

Colorado limited liability company; 

BLACK HA WK BREWERY AND 

CASINO, LLC, doing business as 

Mardi Gras Casino, a Colorado limited 

liability company; BLACK HA WK 

GAMING AND DEVELOPMENT 

CO., INC., a Colorado corporation; 

BLACK HA WK 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, 

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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 & Jardine, P.C., 

Englewood, Colorado (David P. Hersh, Burg, Simpson, Eldredge, Hersh & 

Jardine, P.C., Englewood, Colorado, John F. Reha, Arckey & Reha, LLC, 

Littleton, Colorado, with her on the briefs), for Plaintiffs-Appellants. 

Robert F. Hill, Hill & Robbins, P.C., Denver, Colorado (Jennifer H. Hunt, Hill & 

Robbins, P .C., Denver, Colorado, with him on the brief), for DefendantsAppellees. 

Scott D. Albertson and Eric E. Torgersen, Holley, Albertson & Polk, P.C., 

filed a brief for Defendant-Appellee Woodmont Development Company. 

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Before LUCERO, McKAY, and MURPHY, Circuit Judges. 

MURPHY, Circuit Judge. 

I. INTRODUCTION 

Plaintiffs-appellants, consisting mainly of businesses and property owners 

in and around the Colorado city of Central City, sued the neighboring city of 

Black Hawk; Black Hawk's mayor, city attorney, and city manager; and several 

casinos, associations, and individuals primarily in and around Black Hawk. 

Plaintiffs allege that defendants engaged in a conspiracy 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' motion to dismiss pursuant to Fed. R. 

Civ. P. 12(b)(6). This court has jurisdiction under 28 U.S.C. § 1291. Because 

plaintiffs' claims for injunctive and declaratory relief became moot after the 

district court entered judgment in this case and defendants 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 is 

1 Limited gaming is defined as "the use of slot machines 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 ). 

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vacated as to the claims for injunctive and declaratory relief and affirmed as to 

the claims for damages. The district court's decision to dismiss certain state-law 

claims with prejudice is also affirmed. 

II. BACKGROUND2 

Pursuant to the Colorado constitution, limited gaming 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 City and Black Hawk are 

neighboring towns located approximately twenty-five miles west of Denver. At 

the time the complaint was filed, visitors could reach Central City only by taking 

Highways 119 and 279 through Black Hawk. Plaintiffs allege that casino 

customers passing through Black Hawk on their way to Central City often faced 

highway construction and detours engineered by Black Hawk in an attempt to 

divert passengers away from Central City and into its own casinos. 

To avoid the continuing loss of business to Black Hawk, Central City began 

planning a new highway known as the "southern access road" that would bypass 

Black Hawk and provide direct access to Central City from Interstate 70. A 

2

Pl~intiffs' claims were dismissed by the district court 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). Accordingly, the factual 

background in this case will be drawn from plaintiffs' second revised third 

amended complaint, which is the operative pleading here. 

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substantial portion of the area necessary for construction of the road was owned 

by Proland Management, LLC ("Proland"), which desired 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 portion of the road crossing its 

property. 

Under the Colorado constitution, municipalities may not annex land without 

the agreement of more than fifty percent of the landowners in the area to be 

annexed. Colo. Const. art. II,§ 30(1)(b). 3 Proland acquired sufficient signatures 

3

The Colorado constitution provides: 

No unincorporated area may be annexed to a municipality unless one 

of the following conditions first has been met: 

(a) The question of annexation has been submitted to the vote of the 

landowners and the registered electors in the area proposed to be 

annexed, and the majority of such persons voting on the question 

have voted for the annexation; or 

(b) The annexing municipality has received a petition for the 

annexation of such area signed by persons comprising more than fifty 

percent of the landowners in the area and owning more 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 solely owned by the 

annexing municipality. 

Colo. Const. art. II, § 30(1). 

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to satisfy the requirements of the constitution and submitted its annexation 

petition to Central City. In an attempt to block Proland's petition, Black Hawk 

allegedly conspired with the other defendants to purchase with public funds four 

mining claims located within the area of the proposed annexation. Shortly before 

Central City's scheduled hearing on the petition, Black Hawk then sold undivided 

one-percent interests in the mining claims to fourteen individuals and business 

entities for $500 each. These conveyances were styled as "open space 

preservation agreements," but plaintiffs allege that their actual purpose was to 

create enough landowners in the area of the proposed annexation to cause the 

percentage of landowners approving of the annexation to drop below fifty percent. 

The petition was thereby defeated, and Black Hawk instructed the holders of the 

mining claims to reconvey their interests back to the city. 

The complaint further alleges that Black Hawk pressured landowner H. 

Thomas Winn to drop his petition to include a portion of his property in the 

annexation by threatening not to issue a certificate of occupancy for a casino 

Winn was planning to open in Black Hawk. When Winn withdrew his petition, 

the contiguity necessary for annexation was destroyed. Winn's withdrawal, 

combined with the defeat of Proland's annexation proposal, led Proland to 

abandon its annexation efforts and its offer to fund construction of the road. 

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Plaintiffs contend that once the road had been blocked, Black Hawk grew 

to dominate the limited gaming market in Gilpin County 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 actions of Black Hawk city 

officials constituted "misfeasance or malfeasance" and "misuse or misapplication 

of public funds." Because the practices were not specifically prohibited by state 

law, however, the grand jury did not return an indictment. 

Plaintiffs filed suit in the District of Colorado, raising a variety of claims 

under the Sherman Act, 15 U.S.C. §§ 1, 2; the Colorado Antitrust Act, Colo. Rev. 

Stat. § § 6-4-104, 6-4-105; the Racketeer Influenced and 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 law. Plaintiffs requested 

declaratory and injunctive relief, compensatory damages, treble damages, punitive 

damages, costs, and attorneys' fees. Through a series 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 Act claims pursuant to Rule 

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12(b)(6). The court elected not to exercise supplemental jurisdiction over the 

Colorado Antitrust Act claims and dismissed these claims without prejudice. On 

appeal, plaintiffs challenge only the dismissal of their Sherman Act and Colorado 

Antitrust Act claims. 4 

III. ST AND ARD OF REVIEW 

This court reviews de nova 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 I of the Sherman Act prohibits "[ e ]very contract, combination in 

the form of trust or otherwise, or conspiracy, in restraint 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 any part of the trade or 

commerce among the several States." 15 U.S.C. § 2. Plaintiffs' second revised 

third amended complaint alleges that defendants violated both of these statutory 

4

Plaintiffs also argue the district court erred in declining to dismiss certain 

state-law tort claims without prejudice. See infra Section IV .E. 

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provisions by (1) purchasing and subdividing the mining claims in order to block 

Proland's annexation petition, and (2) pressuring Winn 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 of 

5

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 architectural 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 Black Hawk frequently engaged 

in road construction and detours in an effort to deter prospective Central City 

customers. Although they attempt to revive these allegations on appeal, this court 

will not consider arguments waived or abandoned in the district court. 0 'Connor 

v. City & County of Denver, 894 F.2d 1210, 1214 (10th Cir. 1990). 

Furthermore, plaintiffs did not argue before the district court and do not 

argue on appeal that their antitrust claims are supported by allegations in the 

complaint that defendants threatened other unnamed property owners with 

"adverse consequences" if they did not assist the effort to defeat the annexation, 

interfered with city council elections, threatened Central City with protracted 

litigation if the annexation was completed, presented "sham" objections in 

opposition to the proposed annexation, and interfered with the sale of municipal 

bonds. Accordingly, this court will not consider these allegations in deciding 

whether the complaint can survive a motion to dismiss under Rule 12(b)(6). 

6

Plaintiffs argue the district court erred in failing to consider the contents 

of the grand jury report attached to the complaint in deciding whether the 

complaint stated an antitrust claim. Written documents attached to a complaint 

arc properly treated as part of the pleadings for purposes of ruling on a motion to 

dismiss. Hall v. Bellman, 935 F.2d 1106, 1112 (10th Cir. 1991). The district 

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 and concludes that the grand 

jury's findings are merely redundant to the allegations in the complaint. See Issa 

( continued ... ) 

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the defendants were immune from antitrust liability under the Noerr-Pennington 

doctrine. 

This court can affirm the district court's dismissal 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 moot after the district court 

entered judgment in this case. Plaintiffs acknowledged at oral argument that 

Central City completed building the southern access road after the district court 

dismissed the case, and that their claims for injunctive relief have therefore 

become moot. In addition, the claims for declaratory relief have also become 

moot because a declaratory judgment would no longer have 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 that an action for declaratory 

6( ... 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 omitted)). 

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relief was moot when the requested declaration involved past conduct not likely 

to recur). Without expressing any opinion on the merits, this court therefore 

dismisses plaintiffs' claims for injunctive and declaratory 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 declaratory relief, plaintiffs 

also request monetary relief including compensatory damages, treble damages, 

punitive damages, costs, and attorneys' fees. To the extent these claims are based 

on allegations that the non-governmental defendants 7 conspired with Black Hawk 

officials to block the proposed annexation, the claims are barred by the NoerrPennington doctrine. 

The Noerr-Pennington doctrine was established by the Supreme Court in a 

line of cases beginning with E. R.R. Presidents Conference v. Noerr Motor 

Freight, Inc. 365 U.S. 127 (1961). The Court in these cases has held that "[t]he 

federal antitrust laws [] do not regulate the conduct of private individuals in 

seeking anticompetitive action from the government." City of Columbia v. Omni 

7

The non-governmental defendants are the Black Hawk Casino Owners 

Association; Horseshoe Casino, LLC d/b/a Canyon Casino; Black Hawk Brewery 

and Casino, LLC d/b/a Mardi Gras Casino; Black Hawk Gaming 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 Herbert Bowles. 

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Outdoor Adver., Inc., 499 U.S. 365, 379-80 (1991). The doctrine arises from the 

Court's conclusion that the Sherman Act was not intended to derogate the First 

Amendment right of citizens to petition the government 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 nongovernmental defendants engaged in any anticompetitive 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 acquired the mining claims, 

divided them, and sold them with the purpose of blocking the proposed 

annexation. In addition, the complaint alleges that the decision whether to issue a 

certificate of occupancy to Winn "rested exclusively with Defendant Black Hawk" 

and that it was "Black Hawk, through its elected and/or appointed officials" that 

pressured Winn to pull out of the proposed annexation. 

Standing alone, plaintiffs' allegations that the non-governmental defendants 

conspired with Black Hawk officials to block the southern 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 officials and conspiring with them. 

8

These claims are discussed in Section IV.C.b, infra. 

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City of Columbia, 499 U.S. at 375, 383 ("It would be unlikely that any effort to 

influence legislative action could succeed unless one 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' alleged conspiracy with Black 

Hawk therefore amounts to nothing more than lobbying of government officials, 

which is immune from Sherman Act liability under the Noerr-Pennington 

doctrine. 

Plaintiffs' argument that defendants' alleged conspiracy was undertaken 

solely for the purpose of restraining trade is irrelevant, because "Noerr shields 

from the Sherman Act a concerted effort to influence public officials regardless 

of intent or purpose." United Aline 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 injure 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, 

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499 U.S. at 380. The exception thus "involves a defendant whose activities are 

not genuinely aimed at procuring favorable government action at all," such as a 

defendant who files "frivolous objections to the license 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 process of that lobbying that 

gives rise to the alleged antitrust injuries. The sham exception is therefore 

inapplicable here, and the non-governmental defendants 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 requesting that Black Hawk engage in 

anticompetitive activities, it does not resolve the question whether city officials 

9

Plaintiffs' citation to FTC v. Superior Court Trial Lawyers Ass 'n is 

inapposite. 493 U.S. 411 (1990). In that case, plaintiffs alleged that courtappointed defense attorneys had engaged in an anticompetitive boycott in order to 

force the District of Columbia government to increase 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. 

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Kathryn Eccker, Lynnette Hailey, and James Maloney are liable for acceding to 

these requests. 10 Defendants' claims for monetary relief against Black 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 increasing number of 

antitrust suits, and threatened suits, that could undermine a local government's 

ability to govern in the public interest." See Tarabishi v. McAlester Reg'! Hosp., 

951 F.2d 1558, 1564 (10th Cir. 1991) (quotation omitted). 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 thereof acting in an official 

capacity." 15 U.S.C. § 35(a). The provisions of the Clayton Act cited by the 

LGAA provide the private damages remedy for violation of the Sherman Act. 

Crosby v. Hosp. Auth., 93 F.3d 1515, 1536 (1 Ith Cir. 1996). According to the 

10In 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 also dismissed claims against 

Aldermen David Spellman, Haller Midcap, and Tom Kerr, who were identified in 

the original complaint as agents of defendant Black Hawk Development North, 

LLC. Without supporting argument, plaintiffs ask this court to reinstate the 

claims asserted against these three defendants as agents of Black Hawk. This 

court declines the invitation to reinstate these defendants in light of its conclusion 

that Black Hawk officials are in any event immune from liability under the Local 

Government Antitrust Act of 1984. 

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complaint, Eccker, Hailey, and Maloney were at "all times relevant" the mayor, 

city attorney, and city manager of Black Hawk. These defendants are therefore 

"official[s] or employee[s]" of local government and are immune from damages 

for violations of the Sherman Act. 

Plaintiffs nevertheless argue the city officials were not "acting in an 

official capacity" within the meaning of the LGAA because they acted beyond the 

scope of their authority and pursuant to their personal 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 encompassing all "lawful actions, 

undertaken in the course of a defendant's performance 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. Sys., 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 Hawk 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 legitimate powers the city 

officials acted pursuant to an illegitimate motive. The LGAA, however, "makes 

no provision for consideration of a defendant's motives." Id. at 1146 (rejecting 

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the "argument that allegations of a conspiracy convert otherwise authorized 

conduct into unauthorized conduct"); see also Cohn v. Bond, 953 F .2d 154, 159 

( 4th Cir. 1991) ("An allegation of conspiracy is akin to an allegation that 

[defendants' conduct] was done in bad faith or with malice," which is "clearly 

irrelevant in determining the application of the immunity." ( quotation omitted)); 

Thatcher Enters. v. Cache County Corp., 902 F.2d 1472, 1477 (10th Cir. 1990). 

For these reasons, this court concludes that the Black Hawk officials are 

immune from monetary liability for Sherman Act violations. 

b. The Private Defendants 

Although the Noerr-Pennington doctrine establishes that the nongovernmental defendants are not liable for their lobbying of Black Hawk, it does 

not establish whether these defendants are also immune to claims for monetary 

relief based on allegations that they purchased the undivided interests in mining 

claims for the purpose of blocking the proposed annexation. 11 The purchase of 

these mining claims was allegedly an act independent of the petitioning of Black 

Hawk officials and was not part of an attempt to influence government action. 

11The complaint alleges that the following defendants purchased undivided 

one-percent interests in the mining claims in exchange for payments of $500: 

Susan Barnes, Medill Barnes; Lary Brown; Phyllis Brown; Herbert Bowles; 

Geraldine Bowles; Eagle Gaming, LLC; Black Hawk Brewery, LLC; 101 Main 

Street, LLC; Black Hawk Gaming and Development Co., Inc.; Black Hawk 

Development North, LLC; BH Gateway, LLC; Woodmont Development Co., Inc.; 

and Prospector 141, LLC. 

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Because holding defendants' liable for their purchase 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 against a person 

based on any official action directed by a local government." 15 U.S.C. § 36(a). 

In determining whether the action of a private individual constitutes "official 

action directed by a local government" for purposes of the LGAA, other circuits 

have applied by analogy the Supreme Court's precedents 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 action or official action directed 

by a state." Parker, 317 U.S. at 351. The Court subsequently extended the 

holding in Parker to private individuals acting at the direction of the 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 

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omitted). Second, "the policy must be actively supervised by the State itself." Id. 

( quotation omitted). 

The Conference Report to the LGAA, explicitly agreed to by both houses of 

Congress, explains that the phrase "official action directed by" found in Parker 

and subsequent cases interpreting it "shall apply by analogy to the conduct of a 

local government in directing the actions of non-governmental 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 restraint was the clearly articulated 

and affirmatively expressed policy of Black Hawk, and (2) whether the policy was 

actively supervised by Black Hawk. See Crosby, 93 F.3d at 1536 ("[W]e apply by 

analogy the Parker doctrine to the relationship between the [local government 

entity] (i.e., the entity under the LGAA which is analogous 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 parties in the state action 

immunity context)."). 

The "clear articulation" requirement of Mi deal' s first prong is satisfied if 

the provisions in question "plainly show that the legislature contemplated the kind 

of action complained of." Town of Hallie v. City of Eau Claire, 471 U.S. 34, 44 

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(1985) ( quotations omitted). This requirement is met by analogy in this case, 

when plaintiffs allege not only that Black Hawk contemplated the anticompetitive 

effects of selling the mining interests, but that the city affirmatively participated 

in the conspiracy to block construction of the road. The "active supervision" test 

of the second Mid cal prong "requires that state officials have and exercise power 

to review particular anticompetitive acts of private 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 the State has exercised sufficient 

independent judgment and control so that the details of the [state action] have 

been established as a product of deliberate state intervention, 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 owner 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 action 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 interests is irrelevant to the 

question whether they are entitled to immunity under the LGAA. See City of 

Columbia, 499 U.S. at 374; Al/right Colorado, Inc. v. City & County of Denver, 

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937 F.2d 1502, 1511 (10th Cir. 1991) ("The availability of Parker immunity ... 

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 of plaintiffs' federal 

claims, it was within its discretion in declining to exercise supplemental 

jurisdiction over plaintiffs' state-law claims under the Colorado Antitrust Act. 

See 28 U.S.C. § 1367(c)(3); Exum v. United States Olympic Committee, 389 F.3d 

1130, I 138-39 (10th Cir. 2004). The court therefore did not err in dismissing the 

state antitrust claims without prejudice. 

E. State-Law Tort Claims 

As a final matter, plaintiffs argue the district court erred in dismissing with 

prejudice its state-law claims for intentional interference with prospective 

business advantage, civil conspiracy, and intentional interference with contractual 

relations. Plaintiffs explicitly withdrew these claims 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. 

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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 claim by a plaintiff is without 

prejudice "[u]nless otherwise stated in the notice of dismissal." Fed. R. Civ. P. 

41(a)(l). As defendants correctly point out, however, Rule 41(a)(l) applies only 

to a voluntary dismissal by a plaintiff that was filed "at any time before service by 

the adverse party of an answer or of a motion for summary judgment," or that is 

"signed by all parties who have appeared in the action." Id. Otherwise, "an 

action shall not be dismissed at the plaintiff's instance save upon order of the 

court and upon such terms and conditions as the court 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 otherwise specified in the order." 

Id. In this case, the court's order dismissing the tort claims specified that 

dismissal was with prejudice as to all defendants. 

When a party seeking to voluntarily dismiss a claim pursuant to Rule 

41 (a)(2) is silent as to whether the dismissal should be with or without prejudice, 

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the district judge is required to interpret the motion one way or the other. United 

States ex rel Stone v. Rockwell Int'! Corp., 282 F.3d 787, 810-11 (10th Cir. 2002). 

This court reviews the district court's interpretation for abuse of discretion. Id. 

The district court in interpreting plaintiffs' voluntary dismissal here relied on the 

procedural history of the case, including plaintiffs' apparent concession that the 

dismissal was with prejudice and failure to present any arguments to the contrary. 

Plaintiffs present no explanation on appeal as to how 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 declaratory relief became 

moot after the district court entered judgment in this case, this court DISMISSES 

those claims for lack of jurisdiction and VA CATES 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 dismissal with prejudice of plaintiffs' 

claims for intentional interference with prospective business advantage, civil 

conspiracy, and intentional interference with contractual relations. 

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