New Orleans Ass'n of Cemetery Tour Guides & Cos. v. New Orleans Archdiocesan Cemeteries

56 F.4th 1026

NEW ORLEANS ASSOCIATION OF CEMETERY TOUR GUIDES AND COMPANIES, Plaintiff—Appellant,

v.NEW ORLEANS ARCHDIOCESAN CEMETERIES, doing business as New Orleans Catholic Cemeteries; Cemetery Tours NOLA, L.L.C., Defendants—Appellees.

No. 22-30091 CONSOLIDATED WITH No. 22-30559

United States Court of Appeals, Fifth Circuit.

FILED January 6, 2023

David William Nance, David W. Nance Law Firm, L.L.C., New Orleans, LA, for Plaintiff—Appellant.

Brian Joseph Capitelli, Capitelli & Wicker, New Orleans, LA, Tyffani Amber Lauve, Adams Hoefer Holwadel, L.L.C., New Orleans, LA, for Defendant—Appellee New Orleans Archdiocesan Cemeteries.

Diana Cole Surprenant, Erica Sensenbrenner, Adams & Reese, L.L.P., New Orleans, LA, James A. Cobb, Jr., Esq., Counsel, Ajubita, Leftwich & Salzer, L.L.C., New Orleans, LA, for Defendant—Appellee Cemetery Tours NOLA, L.L.C.

Before King, Stewart, and Haynes, Circuit Judges.

King, Circuit Judge:

Plaintiff-Appellant ACTGC brought federal antitrust and various state law claims in a suit concerning tours of two New Orleans cemeteries. ACTGC also requested injunctive relief, which the district court denied and ACTGC first appealed. The district court then dismissed ACTGC's federal antitrust and state law claims, which ACTGC also appealed. Defendant-Appellee NOAC then moved to dismiss the first appeal as moot. We GRANT NOAC's motion, DISMISS the first appeal, and AFFIRM the judgment of the district court on all issues in the second appeal.

I.

A. Factual Background

The St. Louis No. 1 and No. 2 ("No. 1" and "No. 2," respectively) cemeteries near New Orleans's French Quarter attract numerous visitors and guided cemetery tours. Plaintiff-Appellant Association of Cemetery Tour Guides and Companies L3C d.b.a. New Orleans Association of Cemetery Tour Guides and Companies ("ACTGC") is a low-profit limited liability company comprised of tour companies and guides offering cemetery tours in the New Orleans area.¹ Defendant-Appellee New Orleans Archdiocesan Cemeteries d.b.a. New Orleans Catholic Cemeteries ("NOAC") is a cemetery authority that operates New Orleans-area cemeteries, including Nos. 1 and 2. Defendant-Appellee Cemetery Tours NOLA LLC ("CTN") is a tour company.²

The operative complaint³ alleges the following facts. In 2015, NOAC closed No. 1 to all visitors except family members of the interred and visitors willing to pay a fee. Companies wishing to conduct tours also had to make payments to NOAC. In 2020, with the onset of the COVID-19 pandemic, NOAC closed Nos. 1 and 2 to everyone except the immediate family of the interred. As of November 2021, the cemeteries remained closed, but ACTGC represented that No. 1 was subsequently opened for tours. At some point, NOAC awarded a contract to CTN to manage tours in No. 1 under terms dictated by NOAC. Although it is unclear whether CTN is currently conducting these tours, these terms state that:

(1) all tour narratives and routes must be approved by NOAC; (2) only tour guides from CTN are allowed to conduct tours; (3) local company tour guides may escort tour groups, but may not offer commentary; and (4) prices will be fixed at $25.00 for adults and $18.00 for tour wholesalers.

B. Procedural Background

The underlying dispute in this case generated two separate appeals. The first appeal was calendared in this court as No. 22-30091 (the "First Appeal") and the second as No. 22-30559 (the "Second Appeal"). These appeals were later consolidated. This section proceeds in four stages summarizing events in (1) the district court before the First Appeal; (2) the First Appeal; (3) the district court after the First Appeal; and (4) the Second Appeal.

1. The Underlying District Court Case (Before the First Appeal)

On November 5, 2021, Witches Brew Tours LLC ("Witches Brew") filed a complaint against NOAC and CTN seeking, inter alia , a temporary restraining order and a preliminary injunction. This complaint asserted five theories of liability under federal antitrust acts, Louisiana competition law, and Louisiana property law; these counts generally alleged that the NOAC-CTN business plan violates antitrust law and impermissibly excludes ACTGC's members from visiting or providing their tour services at Nos. 1 and 2.⁴ On November 8, 2021, the district court denied the temporary restraining order on the grounds that Witches Brew had not sufficiently established irreparable harm.

Plaintiff-Appellant ACTGC—having replaced Witches Brew as the plaintiff—then filed its first amended complaint containing primarily the same theories of liability as the original complaint. ACTGC also filed an amended motion for a preliminary injunction. In its first amended memorandum in support of a preliminary injunction, ACTGC requested injunctive relief because Defendants were "violating the public's right to free and reasonable access to public cemeteries" and because ACTGC's members would risk losing large portions of their business income during the closure of No. 1.

NOAC responded with two motions. First, NOAC filed a motion to dismiss under Rule 12(b)(1), arguing that the district court lacked subject matter jurisdiction because ACTGC lacked standing and because the Sherman and Clayton Acts were inapplicable for lack of the required nexus to interstate commerce. Second, NOAC filed a brief in opposition to ACTGC's motion for a preliminary injunction. In this brief, NOAC principally argued that ACTGC could not show a likelihood of success on the merits because, as relevant here, ACTGC mischaracterized the test for adjudicating the Sherman and Clayton Act claims.

On January 27, 2022, the district court issued a ruling on ACTGC's motion for a preliminary injunction and NOAC's motion to dismiss. The district court denied the preliminary injunction because ACTGC failed to show any evidence of irreparable harm and granted NOAC's motion to dismiss because ACTGC had not shown the requisite nexus to interstate commerce required to successfully allege a claim under the Sherman Act. The district court then granted ACTGC leave to file another amended complaint to cure its pleading deficiencies. ACTGC did so and filed the operative second amended complaint on February 11, 2022. ACTGC then moved to appeal the denial of the preliminary injunction. This created the First Appeal. During the pendency of the First Appeal, the district court proceedings continued in parallel.

2. The First Appeal

The First Appeal is an interlocutory appeal of the district court's denial of a preliminary injunction. Both issues on appeal concern whether the district court properly denied ACTGC injunctive relief; namely, whether the district court (1) abused its discretion in holding that ACTGC failed to establish irreparable harm and (2) otherwise erred in denying ACTGC injunctive relief.

3. The Underlying District Court Case (After the First Appeal)

In district court, the parties continued to litigate the claims in the second amended complaint.⁵ In March, NOAC and CTN filed substantively-identical Rule 12(b)(6) motions to dismiss. In support, NOAC argued that ACTGC had not stated a claim under the federal antitrust laws because it had failed to define the "relevant market" as required to state a claim under the Sherman and Clayton Acts.⁶ NOAC argued that ACTGC had too narrowly defined both components of the relevant market, i.e. , the product market and the geographic market. Assuming arguendo that ACTGC had properly characterized the relevant market, NOAC argued in the alternative that the NOAC-CTN agreement was not an unreasonable restraint on trade.⁷ In response, ACTGC argued it had appropriately defined the relevant market and adequately pleaded an unreasonable restraint on trade.

In May, some six months after Witches Brew filed the initial complaint, ACTGC moved to amend the second amended complaint to add six affidavits from the interim manager of ACTGC and five tour guides. These affidavits primarily discuss the economic and emotional consequences faced by these tour guides. NOAC opposed this motion, arguing that adding the affidavits would be futile as related to the Sherman Act claims and that the affidavits failed to establish non-monetary harm.

In June, a magistrate judge denied ACTGC's motion to amend its complaint to add these affidavits. ACTGC moved for review of this order by the district court. In August, the district court denied ACTGC's motion and affirmed the magistrate judge's decision. The district court found that ACTGC acted with "undue delay in seeking to attach this evidence [i.e. , the affidavits] to the active complaint" by attempting to amend six months after the initial complaint. It also noted that ACTGC had failed to show irreparable harm at the preliminary injunction evidentiary hearing and that "manifest prejudice would result to Defendants if the proposed ‘amendment’ were allowed." Finally, the district court held that allowing the proposed amendment would be futile, as nothing in the affidavits cured the lack of irreparable harm or supported ACTGC's antitrust and possessory claims.

In August, the district court granted NOAC's and CTN's 12(b)(6) motions to dismiss because ACTGC's "failure to plead a legally sufficient definition of either the product market or the geographic market warrants dismissal of its antitrust claims."⁸

ACTGC appealed, creating the Second Appeal.

4. The Second Appeal

ACTGC raises two issues in the Second Appeal. First, it argues that the district court abused its discretion in denying ACTGC's motion for review of the magistrate judge's order denying ACTGC's motion to add six affidavits to its complaint. Second, it argues that ACTGC's second amended complaint stated a claim for relief from a monopolistic price-fixing scheme.

After the Second Appeal was calendared, NOAC filed a motion to dismiss the First Appeal. In this motion, NOAC argues that this panel should dismiss the entirety of the First Appeal for lack of jurisdiction. Specifically, NOAC asserts that the First Appeal is...