NEW ORLEANS (Legal Newsline) – Tourism companies that say they have been shut out of showing off New Orleans’ famous cemeteries are appealing a federal judge’s order that dismissed their lawsuit.
The New Orleans Association of Cemetery Tour Guides and Companies on Feb. 22 filed their appeal to the U.S. Court of Appeals for the Fifth Circuit after being told its complaint lacked specific allegations.
On Jan. 27, Judge Barry Ashe granted a motion to dismiss by the owner of those lands that stopped allowing companies to offer tours during the COVID-19 pandemic. The cemeteries at issue are St. Louis Cemetery Nos. 1 and 2, and Ashe wrote in his opinion that No. 1 is now open for tours.
Witches Brew Tours first filed the lawsuit but has since been terminated as plaintiff, with ACGTC taking over. It alleges tourism at those two generates millions of dollars each year because of their long histories, proximity to the French Quarter, and the many famous people interred there. ACTGC alleges the conduct of owner New Orleans Archdiocesan Cemeteries is anticompetitive.
ACTGC asked for an injunction, which Ashe rejected. Instead, Ashe granted NOAC’s motion to dismiss but allowed time for the plaintiffs to amend their complaint.
The plaintiff chose to appeal rather than do that.
They needed to prove the court has subject-matter jurisdiction over their antitrust claims by showing an effect on interstate commerce.
They already tried by arguing the New Orleans cemetery tour industry generates millions of dollars each year directly from out-of-state tourists.
“While these allegations, if proven, may establish that tourists from around the globe visit No. 1, they do not tie Defendants’ conduct to interstate commerce,” Judge Ashe wrote.
“Instead, ACGTC’s complaint, even when read as a whole, falls prey to the deficiency (another court in a similar case) identified in pleading at too general a level the interstate commerce nexus and, then, failing to link it to Defendants’ allegedly injurious conduct.”
NOAC closed No. 1 to all but “owning” families and visitors willing to pay a $20 fee in 2015 but allowed tour companies to operate – if they paid either $4,500 per year - or charged $40 per tour and gave $1 to NOAC.
NOAC since has hired a company called CTN to manage tours in an arrangement that shut others out, it is alleged CTN has final approval on all tour narratives and routes and only its guides can conduct tours.
Other companies could conduct tours but not offer commentary while prices are fixed at $25 for adults. ACTGC said its 67 member companies “stand to be excluded from visiting and providing their services” as a result of CTN’s presence.
Ashe said there is an “absence of evidence” to show irreparable harm to ACTGC, so he denied the motion for injunction.
“It is true that ACGTC professes in its complaint that it is not seeking monetary damages, but it is ACGTC’s burden in seeking injunctive relief to come forward with evidence that monetary damages cannot remedy the harm suffered,” he wrote.