Petition for Writ of Certiorari — Norfolk Monument Co. v. Woodlawn Memorial Gardens, Inc.

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‘SUPREME COURT. U. B

FILED

| FEB 13 1969

OWN

IN THE. WN F. DAVIS, eLBRK

_ Supreme Court of The United States _

OCTOBER TERM, 1968.

No. 1 040.

NORFOLK MONUMENT COMPANY, INC,

Petitioner,

‘ vs.

WOODLAWN MEMORIAL GARDENS,

INCORPORATED, -

ROSEWOOD MEMORIAL PARK,

INCORPORATED, | ;

-GREENLAWN CEMETERY PARK:

CORPORATION, |

———ROOSEVELT- MEMORIAL- PARK AND ————_

CEMETERY CORPORATION, ates

PRINCESS ANNE MEMORIAL PARK,

INCORPORATED,

aay -. JAS. H. MATTHEWS & CO. OF VIRGINIA,

eS and JAS. H. MATTHEWS & Co.,

| 3 ‘ Respondents :

——

POLES ALE OLE INE ITN De A EP RETESET I RHI a OR EYRE OY Lo FORO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

_FOR THE FOURTH CIRCUIT |

hag baw aye egers eroyreyt

HOWARD I. LEGUM and LOUIS B. FINE

FINE, FINE, LEGUM & FINE

720 Law Building

Norfolk, Virginia 23510 ©

Attorneys for Petitioner

PRINTED BY TEAGLE @ LITTLE, INC., NORFOLK, VA.

PEEL I OPAL FELD DORE AS REFINE ALE MAGI 0 NE

INDEX

ore. .Page

- OPINIONS BELOW... SORE tees Elie eS OO iabisiaibansliegaaaa a

I ic te ae

QUESTIONS PRESENTED FOR REVIEW........... wos

I: Whether and when agreement can be found in

consciously parallel decisions by competitors to

_ adopt substantially identical exclusionary re-

. _ Strictions with respect to installation and sale

-”° of grave markers; contrary to the Sherman

Anti-Trust Act, 15 U.S.C.A. Sections 1 & 2....... .2

II. Do the answers to interrogatories, discovery

exhibits and affidavits, together with the plead-

ings, presert an issue of fact for jury trial as to

the existence of a tacit agreement to limit. and

destroy the trading -onportunities of ‘the -peti-

tioner retail monument dealer?....-_.-.-..... 2

III. Did the record show beyond doubt that the peti-

tioner can prove no set of facts in support of its

claim, which would entitle it to relief under the

IV. Did dfamissal of the Sherman Act claim on the -

- motion for summary judgment violate the ad-

monition from the record of this .case that dis-

missal should be sparingly practiced ?...........°....- - 3

STATUTES INVOLVED ROSSI FR en ae eth OL .*

15 U.S.€.A., IE Bi ovvvecscacaeccacs SOvURE REICH oni eer cn aoe TeOe 3

15 U.S.C. A., Section Janna nanan nnn sadennninennnnnnnt neh Cee ;

Federal Civil Procedure RD eli ecieiannincnemianiantnnn 3

Federal Civil Procedure Rule 56(e).- oa ae hee NG 4

‘SPATEMENT OF THE CASE.) ccececcicecececneneee B

ARGUMENT AMPLIFYING THE REASONS RELIED

UPON FOR THE ALLOWANCE OF THE WRIT.. 9°

“CONCLUSION (cece LM eat env Feta oe a 16

ME Soc Cech intireiee la

_— rm ~~ abs Per ty. ub tie Reece ork,

| ,

Z TABLE OF CITATIONS

4 ‘Gases 7

7 : Page

; ' Devex re v. Houdaille Industries, Inc., 382 F.2d a eh

I an oe ,

Eastern State Retail: Lumber Dealérs’ Ass’n. V. U. S., .

284 U.S. 600, 612, 34 S.Ct. 951,58 L:Ed. ~

; 1490 » (1914)... Es ERE Re 9 9,10

_ ‘Interstate Circuit v. United. States. B06 U.S. 208, 227,-

59 S.Ct. 467, 83. L.Ed, 610, 620: TIE cnanadcansnanncenes 9,13 .

Kiefer-Stewart Co. v.J oapbh E. Seagram & Sons, 340 . ,

‘ US. 211, 71 S.Ct. 95 L.Ed. 219 (1951). Sr clicescoiel 9,10.

i “Liberty Leasing Co., Inc.-v. Hillsun Sales Corp., |

380 F.2d 1018, 1014 (5th Cir. 1967) -........222. 14.

Milgram v. Loew’ s,Anc., 192 F. 2d 579, 583 v.

' . (3rd: Cir. 1951)» ‘Gi oT SAE a a a eR “14. -

Poller v. Columpbia BisSichsting System, Inc., 368 U.S. ;

. - 464, 82-SCt. 486, 7 L.Ed.2d 458 (1962) rine 9,12,14°

‘» Robin Construction Vv. United States; 345 F. 2d 619,

aint 14

Six ae Productions, Inc. v. Rollins Telecasting, ”

_. _ Ine; 365 F.2d 478, 485 (5th Cie, Bee) ...n...........<4 15

Standard’ Oil Co. of New Jersey v. United: States,

SU SE Wii i naissnitinashndapiinansbswanacnnecd * aieaeeae 15.

ater Enterprises v. Paramount Distrib: Corp.,

346 U.S. 537, 542 (1954)... id oc

United States v. Container Corpora tion of ‘America,

_4¢ . 87 L.W. 4077 (decided January 14, 1969) ...... aed 15

éj ? Wurzberg Bros., Inc. v. Head Ski Co., 276 F. Supp.

re 142 (D.NJ. ed SU Tae 15

INDEX TO APPEN DIX

Appendix A :

Opinion of the United States Court of Appeals

for the -Fourth Circuit. sci Wit RSL aR Ae IPE poe ree la

Appendix B .

Order of the United States Court of Appeals . an

for the Fourth Circuit. staying the mandate........... 27a

Appendix C >

‘Order of the United States District Court for the -

Eastern District of Virginia, Norfolk Division :

“pa granting sugamary judgment luAdaedtistach pieasseiceaeonies ee

Se Appendix D

. Memorandum of the Honorable John A. MacKenzie, .

a Judge of the United States District Court or the

fe Eastern District of Virginia, Norfolk Divisf®n.--...... 30a

a ee ce! een :

s . . bd or =H

~ ser onenes:

1 ope mere ag ye

-IN THE

a Supreme Court of The United. States 3

-OCTOBER TERM, 1968. .

No. |

“NORFOLK MONUMENT COMPANY, INC,

_ Petitioner,

. VS.

WOODLAWN MEMORIAL GARDENS, »

INCORPORATED,

ROSEWOOD MEMORIAL PARK,

~~ INCORPORATED, |

GREENLAWN CEMETERY. PARK

CORPORATION, :

ROOSEVELT MEMORIAL PARK AND

CEMETERY CORPORATION,

PRINCESS ANNE MEMORIAL PARK,

~ INCORPORATED, 3

JAS. H. MATTHEWS &(CO. OF VIRGINIA,

and JAS. H. MATTHEWS & CO,

PETITION FOR WRIT OF CERTIORARI -

TO. THE UNITED STATES COURT OF APPEALS

BOR THE FOURTH CIRCUIT

Petitioner, Norfolk: Monument’ Company, -Inc.,

‘prays.that a writ of certiorari issue to review the judg- °

ment of the United States Court ba Appeals for the

Fourth Circuit. : «

OPINIONS BELOW

‘The opinion of the U nited States Court of Appeals

for - Fourth Circuit, decided November 14, 1968

(Appendix A) is not officially reported. ‘he memo-

randum of: the United States District Court for the

Eastern District of Virginia; Norfolk Division, filed |

October 3, 1967, sustaining the motions ‘of the respon-

-dents to dismiss the Complaint, is not officially re-

ported ia a oaetes D). i.

, al

JURISDICTION |

The jurisdiction.of the Court, is on under

28 U.S.C. 1257(3). The date of the judgment sought

“to be reviewed was entered November 14, 1968. There

has been no order respecting a rehearing. and there

has been no order: granting an extension of time in

which to petition. for:a writ of ‘certiorari.

- QUESTIONS PRESENTED FOR REVIEW

|. . Whether and when agreement can be found in.

consciously parallel decisions by competitors to adopt

substantially, identical exclusionary restrictions with re-

spect to installation and sale of grave markers, contrary

— to the Sherman Anti- Trust Act, 15 U.S.C.A. Sections - |

and 2. 3 |

. Do the answers to interrogatories, ' discovery

exhibits and affidavits, together. with the pleadings, pre-

sent an issue of fact for jury trial as to the existence of a

tacit agreement to limit and destroy the trading oppor-

tunities of the petitioner retail monument dealer? —

. Uh Did the recotd show beyond doubt that the

petitioner can prove no set of facts in support of its

claim, which would entitle it 'to_ relief under the Sherman -.

Act? — < ? tk qo ae ey

; a | | e | "3

IV. Did dismissal of the Sherman Act claim on she

‘motion for. summary judgment violate the. admonition

from the record of this case that dismissal should be

; sparingly eer. |

’ "STATUTES INVOLVED

_ The statutes involved. are 15 U.S. C.A., Sections 1 .

and 2, and Rule. bar fe): Federal Rules of Civil

Procedure, as amended.

15 U.S.C:A. Section 1, states:

* “Every contract, combination in the form .

of trust or otherwise, or conspiracy, in restraint

of tradé or commerce among the severel States,

or with foreign. nations is declared to be illegal. sf ae

1S U.S.C.A. Section 2, states; | :

“Every person’ who shall monopolize, or

* attempt to monopolize, or combine or conspire’

- with other person or persons, to monopolizé any .

part of the trade or commerce among the sev-

~ eral States, or within foreign nations, shall be

deemed guilty of: a misdemeanor.” ,

| | Rule 56(c) states:

| “The motion shall be served at least ten

days-before the time fixed for the hearing. The

adverse party prior to the day of hearing may

“a =

a |

serve opposing affidavits.. The judgment sought

shall be rendered. forthwith if the pleadings,

depositions, answers to interrogatories, and ad-

_missions on file, together with the affidavitss

if any, show that there is rio genuine issue as to

any material fact and that the moving party is

entitled to a judgment ds a matter of law.” A

_ summary judgment, interlocutory in character,

may be rendered on the issue of liability alone

although there is a genuine issue as to the.

amount of damages.”

Rule 56(e) sates: ‘

“Supporting and opposing affidavits shall

be made on personal knowledge, shall set forth

such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is

competent to testify to the matters stated therein.

Sworn or certified copies of all ‘papers or: parts

_ thereof referred -to in an affidavit shall be at-

tached thereto or served therewith. The court

. may permit affidavits to be supplemented or

opposed by depositions, answers to interroga-

‘tories, or further affidavits. When a motion for

summary judgment is made.and supported as

provided. in this rule, an adverse party may fot

rest upon the mere allegations or denials of his

pleading, -but his response, by affidavits or as

otherwise provided in this rule, must set forth. |

specific facts showing that there is a genuine

issue for trial. -If he does not so respond, sum-

mary jeegmen, if appropriate, —_ - anor

against him.”

s°

/ "STATEMENT OF THE CASE.

The. District Court grarited summary judgment —

-on the sole ground that petitioner failed to present

evidence of a conspiracy among the respondents. .The

Court of Appeals for the Fourth Circuit affirmed in a

two-to-one decision, with Judge Craven filing an

exhaustive, forceful, persuasive dissent, which dissent

_ petitioner asks this Court to adopt.

The basis for jurisdiction in the District Court

was the Sherman Anti-Trust Act, 15 U.S.C.A., Sec-

tions | and. 2. | es ‘

- From, the Complaint, discovery depositions of

Charlie C. Gregory, President of petitioner, and affi-

davits opposing summary judgment, appear the, fol-

lowing facts.material to the consideration of the

questions presented. The record is full of examples of

, insufficiently explained parallel behavior on which a

jury could reasonably find an agreement to violate the

Sherman Act. Respondents adopt a remarkably. uni-

form practice of charging prohibitive installation fees

to permit the use of an outsider’s grave marker, and

other similar exclusionary rules and regulations, re-

sulting in a concerted action to eliminate or exclude

-petitioner’s trading: opportunities. Despite the un-

skilled nature of the work, all of the memorial parks

refuse to permit petitioner to install markers sold by

it. All insist the work be done by the-cemeteries them-.

selves. None oc‘ the memorial -parks charges lot own-

ers a separate installation fee in the case of markers

purchased from the cemeteries. All of the memorial

parks require the payment of an installation fee by

petitioner for installing markers purchased from the

NEA SPAS BRIE ORES LEE ETD RIS ag)

NR ET

- ce HON

ERC IPEF

~ a a)

petitioner.. Although the actual cost of installation

amounts to about Three Dollars ($3.00), yet the me-

morial parks charge petitioner enormous installation

fees and the amounts charged are. remarkably similar.

The fees charged by Rosewood Memorial Park, Incor-.

porated and Princess Anne Memorial Park, Incorpo-

rated for installing single and double bronze markers

are identical, and fall within a range of Three Dollars

($3.00) for a single.size marker of Greenlawn Ceme-_

tery Park Corporation. The installation fees charged

for a double bronze marker by Rosewood, Woodlawn,

Greenlawn and Princess Anne fall within a range of

Twenty-One Dollars ($21.00). All ‘of the memorial .

parks require a specific alloy content in the bronze

markers installed, and reserve the right to reject non-

_ conforming markers. ‘The alloy content requirement

is the same as markers-manufactured by Jas. H. Mat-—

thews & Co.,-and the same as is suggested implicitly in a

pamphlet called “Modern Cemeteries,” distributed by —

Matthews to its customers, All of the memorial parks,

except Roosevelt, are customers of Matthews. There

have been numerous incidents and attempts by Green-

‘lawn, Woodlawn and Princess Anne: to dissuade lot

owners from purchasing markers from penoner.

Matthews, in its pamphlet, “Modern Cemeteries,” sug-

gests a number of practices, which in effect erect com-

petitive barriers to retailers other than the cemeteries

themselves. Most of these practices have been adopted

‘by the memorial park respondents as evidenced by affi-

davits in. the record. and by the rule books of Rose-

wood, Princess Anne and Greenlawn. There is evi-

dence of numerous visits to and conferences with the

memorial parks by sales representatives of Matthews.

This is at least the fourth time Matthews has been

named. co- -defendant with emnorial parks in anti-trust

actions attacking the same practices. Each of the pre-

vious actions, Booth v. Jas, H. Matthews & Co., No.

60-418-Civ. (W.D. Pa. 1963); Kaeppler v. Matthews,

No. 25618- Civ. (E.D. Pa. 1963); and United States v.

Jas. H. Matthews & Co., No. 16818-Civ. (W.D.

1958), was settled by a consent decree enjoining the

_ specific practices complained of in this case. Such

litigation would tend to educate the respondents as to

common. methods of doing business. The Matthews

pamphlet, ‘““Modern Cemeteries,” refers expressly to

the anti-trust troubles of the memorial park industry. |

Respondent Woodlawn sells its double bronze

_ marker at a two. hundred percent (200%) mark-up

over cost. Petitioner’s supplier, Mier, Johan-Weng-

ler, Inc., charges Seventy-six Dollars ($76.00) for a

single marker and One Hundred Seventy-two Dollars

($172. 00) for a double market, thus making petition-

er’s wholesale cost greater than that of Woodlawn.

_ The record contains eyidence of petitioner’s retail

. purchases from 1963. ties 1966, that petitioner has

chargea an average price of One Hundred Seventy-

five Dollars ($175.00) for single markers and Three

Hundred Thirty-eight Dollars ($338.00) for double

_markérs. Petitioner absorbs the installation . fees

charged by the memorial parks and does not pass same

on to the customer. Petitioner is placed at an impos-

sible competitive disadvantage by the enormous instal-

lation fees. In order to meet Woodlawn’s price, peti-

tioner must suffer a loss for each sale of a single marker »

to a Woodlawn lot owner of Sixty-one Dollars ($61.00),

to-wit: The cost to petitioner is Seventy-six Dollars

($76. 00), which added to the installation fee. of One

Ra Se ay, aah

phere

TREE RN TIT YER UNTER AAL rtTE OAM TG

i alee) ada iia add

Perry

ea \

Hundred Seventy-five Dollars ($175.00), totals Two

Hundred Fifty-one Dollars ($251.00), whereas the.

retail sales price is One Hundréd Ninety Dollars

($190.00). Petitioner can only make a gross profit of

Twenty-eight -Dollars ($28.00) on a double marker,

to-wit: The marker cost to petitioner is One Hundred

* Seventy-two Dollars ($172.00), which added to the

installation fee of One Hundred Seventy-five Dollars -

($175.00), amounts to Three Hundred Forty-seven.

Dollars ($347.00), whereas the .retdil sales price is

Three Hundred Seventy-five: Dollars ($375.00).

Woodlawn, however, has a gross profit of slightly less

- than Two Hundred Fifty Dollars ($250.00) ‘per

marker, although its marker is one inch smaller than

that offered by petitioner. Thus, a jury could find that

the installation-fee practice, together with the other

_practices.of-the- memorial-parks, is calculated to ex-

clude petitioner from the market, resulting in exten-

sive loss of marker sales by petitioner.

A jury could find that the installation fees charged

_by the memorial parks are not justified by the expense

_ of perpetual care and maintenance. ‘A maintenance

_ form. published by Matthews states that ‘water is the

“best cleansing agent” for the marker, which will not.

deteriorate, will not rust, and does not require per-

petual care. Amplé funds, from-the sale of cemetery

lots, exist under Virginia law under “endowment trust

funds” to maintain the marker. 3

The record shows evidence that a jury could find |

the existence of a tacit agreement among the respon-

dents to limit and destroy petitioner’s trading oppor-

tunities. In addition to parallel behavior on the part

of the memorial park respondents, the record shows a

jury could find that the ‘respondents were mutually

- aware of the others’ restrictive practices. There is

direct evidence of frequent conferences between the

memorial parks and‘ representatives of respondent

Matthews. Matthews- has had at least four cases of

anti-trust actions for identical practices, . Matthews’

pamphlet, “Modern Cemeteries,” refers to the anti-

trust problems and contains suggestions to circumvent

legal entanglement-and could be ‘considered by a jury |

as joint invitation to participate in a tacit agreement

to exclude petitioner from competing with their own

retail sales of markers. The owners.of Princess Anne |

and’ Rosewood Stet Parks are identical.

“ARGUMENT AMPEIFYING THE E REASONS

RELIED UPON FOR THE ALLOWANCE OF -

THE WRIT

I. ‘The split decision of the Court of Appeals

conflicts with the decisions af this Court in the fol-

lowing cases: Poller v. Columbia Broadcasting System,

Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) ;

leteritiite Circuit v. United States, 306 U.S. 208, 227, |

59 S.Ct. 467, 83 L.Ed. 610, 620 (1939) ; Kiefer-Stewart

Co. v, Joseph E. Seagram & Sons, 340_U.S. 211, 71

S.Ct. 259, 95 L.Ed. 219 (1951); Eastern States Retail

~ Lumber. Dealers’ Ass'n. v. U.S., 234 U.S. 600, 612, 3

— 951, 58 L.Ed. 1490 (1914).

“In Poller v. Columbie Broadcasting System, Inc.,

368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), the ”

Court held that “summary procedures should ‘be used

‘sparingly in complex anti-trust litigation where-motive

and intent play leading roles, the proof-is largely in

9 is ae

ee irae ae

Rc COV OAT WOO LE AN PVG IO LENT

_ the hands of the alleged conspirators, and hostile wit-

nesses thicken the plot.” :

In Iutevetate Circuit v. United States, 306 U.S.

208, 227, 59 S.Ct. 467, 83 L.Ed. 610, 620 (1939), the -

Court affirmed that in order to-make-out a case for

the jury, it is not essential that the plaintiff establish _

a prior agreement. “Acceptance by competitors, with-

out previous agreement, of an invitation to participate. ——

-in a.plan, the, necessary consequence of which, if car-

ried out, ig restraint of interstate commerce, is’ suffi-

cient to blish an unlawful conspiracy under the ©

Sherman Act (where each competitor knew: that coop-

eration was essential: to successfal operation of the

pian). ee:

in Hicker Stomert Co. -v: oe E. Seagram &

Sons, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951),

-the Court held that evidence that manufacturers have

a unity of purpose or a common design and under-

standing in fixing wholesalers maximum resale prices

justifies the finding of -a conspiracy of the manufac-

’ turers to violate the Sherman Act. .

In Eastern States Retail. Lumber Dealers’ Ass'n.

v..U.S., 234 U.S: 700, 612, 34S.Ct. 951, 58 L.Ed. 1490

(1914), the Court ruled that i in order to show a com-

bination or conspiracy .with the-Sherman Act, no

agreement need be shown under which the concerted -

action is taken, since it is elementary that conspiracies

are seldom capable of proof by direct testimony and

may be inferred from the things actually done.

Petitioner urges the Court to adopt the analytical

dissent of Judge Craven, who wrote: “As T read’ the

record, it is simply full of examples of insufficiently

Par explained parallel behavior from which a jury could:

- reasonably find an ‘agreement’ to violate the, Sherman

Act. Moreover, the remarkable parallelism of conduct

might reasonably be traced to sophisticated and subtle

invitations extended by manufacturer Matthews to

the trade. In evaluating ‘motive ‘and intent’ I do not

think it entirely without significance that manufac-

turer Matthews is not inexperienced in questions of

anti-trust, about which I will have more to say later.

‘Tatesien have .urged upon us aes the remark:

ably uniform practice of charging virtually prohibi-

tive installation fees to permit the-use of an outsider’s

grave marker and the other similar exclusionary rules

and regulations are prompted and justified by legiti- —

mate business and economic reasons. -I shall attempt

to demonstrate that a jury might reasonably conclude

to the contrary, but before doing so, I should note that

if the evidence supports a finding of concerted action

to limit or exclude plaintiff's trading opportunities,

‘such group action is a per se violation of the Sherman

Act and hence is not subject to the test of reasonable-

ness. a

. Thus, a jury could. find chat the installation-

fee practice, together with other practices of the me-.

-morial parks, is calculated virtually to exclude plain-

tiff from the market. |

“The sniaeesiiins parks contend that the sable

tion fees charged are justified by the expenses of per-

petual care and maintenance. Unquestionably, I think,

a jury could find otherwise. . . .”

mcauoneene hore erg

siete ah ola i aa 5

ed tate A ES wate

tices resulted from individual or Géoncerted action.

= '

“Hence I see-no reason, Why a jury “could. not

reasonably reject defendant's story and: find, on the

contrary, that the defendant memoria! parks insist upon

an exorbitant instaliation fee in order to exclude plain-—

tiff from competing with their own retail sales of

markers. Such an inference seems to me strongly sup-

ported by evidence that. (a) actual installation costs $3

plus unskilled labor of two men for perhaps an. hour,

(b) the best cleaning agent is plain water and (c) ade-

‘quate-funds for perpetual care are required by law to.

be derived from lot sale revenues and income from the

$25,000 minimum care fund. To insist in the face

of such a record that charging plaintiff an installation

fee of as much as $175 per marker is so clearly related

to expense incurred that no other inferénce may be

drawn seems to me patently absurd. At the very:

least ere i is S presented. a material issue of fact.

: “Thus, there is at best only questionable business:

justification for those parallel practices which tend .

to the virtual exclusion. of plaintiff from the market.

Further, I think the record presents an issue of fact for

trial over whether the formation of those parallel prac-

“Viewing the - evidence’ most Soadenke to the »

plaintiff's case, Poller v. Columbia Broadcasting Sys-

tems, Inc., 368 U.S. 464, 473 (1962), I think the an-

swers to interrogatories, discovery exhibits: and affi-

. davits, together with the pleadings, present an issue of

_ fact for j jury trial as to the existence of a tacit agree-—

ment to ‘Jimit and destroy the plaintiff's trading oppor-

y p g opp

‘tunities.

‘12

“The evidence. recited, supra, shows’ parallel be-

havior on the part of the memorial park. defendants.

That alone is not enough. Turner, The Definition of

Agreement Under the Sherm@gn Act,;. Conscious Paral-

lelism and Refusals to- Deal, supra, at 658. However,

I think the record justifies. the ygference, and a jury

could so find, that the defendants were mutually aware

of the others’ restrictive practices. Against the back--

ground of anti-trust litigation over identical practices

(involving the défendant Matthews s) such an inference .

seems clearly permissible. ‘The Matthews pamphlet, |

‘Modern Cemeteries,’ containing, supra, references to

anti-trust problems and suggestions to circumvent legal

cntangiemment, could, [ think, fairly be characterized as

- a ‘joint an to participate in the tacit. agreement

here alleged. Interstate Circuit v. United States; supra.

Moreover, as:previously-noted, the record does contain

direct evidence of frequent conferences between the

memorial parks and representatives of defendant Mat-

thews, the alleged hub of the. conspiracy.

“On facts closely. analogous to ‘those presented

here, the Third Circuit has said, |

‘Gur carci: point in analyzing the evi-.

dence is the complete unanimity with which all

the distributors refused to license features on.

first run to plaintiff and the substantial. unani-

mity with which they gave the Boulevard

(plaintiff's drive-in theater) a 28 day (delayed

showing) status. . .: This uniformity in policy

. forms the basis of an inference of joint action.’

Milgram v. Loew’s, Inc., 192 F:2d 579, 583.

(3rd Cir. 1951) (emphasis added).

13 a

_ “Thus, in Milgram, evidence of conspiracy was

found in participation in, or in mere acquiescence in,

parallel. business practices, even without a showing of

‘invitation and acceptance such as was present in Jnter-

state Circuit, id. at 583-84.

“Tn this case, the defendants’ entitkement to sum-

mary judgment is rested on testimonial denials of the:

existence of an agreement, coupled with plaintiff's

failure to come forward with direct evidence. ‘But

in this modern era of increasing subtleties, it is rare -

indeed for a conspiracy to be proved by. direct evi-

‘dence. ‘Fhere is no dispute over the proposition that

circumstantial evidence will sustain a finding of con-.

spiracy.’ Milgram v. Loew's, Inc., 192 F.2d 579, 583.

summary ‘judgment cannbdt rest on conclugory allega-

tions, Robin Construction v. United States\345 F.2d

610, 614 (3rd Cir. 1965),:the burden is. upon the

movant to establish that no issue of fact rémains for

(3rd Cir. 1951): While a party opposing ‘yal for

trial. Liberty Leasing Co., Inc. v. Hillsun Sales Corp.,

380 F.2d 1013, 1014 (Sth Cir. 1967). The defendants

have, in my opinion, faved to come forward with an

explanation’ for. their parallel behavior which a rea-

sonable juror could not disregard.

“Where the plaintiff's case necessarily turns on -

inference, and where it is not ‘quite clear what the

truth is, Poller v. Columbia Broadcasting Systems,

Inc., 368 U.S. at 467, I would, .in-a conspiracy case, be

disinclined to cut off the right to have, a jury draw

the proper inferences, Poller v. Columbia Broad-

casting Systems, Inc., supra; Devex Corp: v.

- Houdaille Industries, Inc., 382 F.2d 17 (7th: Cir.

aor #

1967) : Six Piscine Nine Produciisas, i v. Rollins

Telecasting, Inc., 365 F.2d 478, 485 (Sth Cir. 1966) ;

Wurzberg Bros., Inc. v. Head ‘Ski Co., 276 F. upp.

142 (D.N-J:.1967). Evidence of: conscious parallglism |

raises fact issues requiring the trial judge to,submit the

issue of conspiracy to the jury.. Theater Enterprises v.

| Peremeunt Distrib. Corp., 346 U.S. $37, 5#2 (1954).

“Finally, I think we should not apo ar the fact

that one of the major evils against which the antitrust -

acts were designed to guard is the exercise of ‘the

' power arbitrarily to enhance prices. : . ... Standard

Oil Co. of New Jersey v. United States, 221 US. 1,

52 (1910). “It is Sartially through the ‘private prose-

‘ cutign’ of these: anti-trust suits that the congressional

.policy of protection of the public is implemented. I _

am not so naive as to suppose that miere admission of

‘Norfolk Monument to competition will. bring the .

high prices of grave markers tumbling: down. But

evera little competition may help—and a-[ittle com-

; petition can invite more.” | ae

In United’ States v. Container Corporation of

America, 37 L.W. 4077 (decided January 14, 1969),

in reversing the dismissal of* the complaint charging

a price- -fixing agreement in violation of Section 1. of

* _ the Sherman Act, the Court said: ““Inferences are

irresistible that the exchange of price information has"

had ‘an anticompetitive effect in the industry, chilling

the vigor of price competition . . price is too critical,

too "sensitive of control to allow it to be used even in an’

informal manner to restrain competition.”

be tice

_ CONCLUSION

~ Every person will sooner or later die.. The memo-

rial park is becoming more ‘and more popular. Each

_ person desires some form of ‘remembrance, as having

‘lived on this earth by way of a marker, or monument.

The public is entitled to be protected by competitive

prices on markers. The record shows that a jury could

find that exorbitant installation fees, together with

othef practices,-has deprived petitioner retail dealer’ .

in/markers and. monuments from competing with the

-memorial parks, who have acted in’ concert with the

manufacturer Matthews.

It is respectfully submitted that the petition for

‘ writ of certiorari should: be granted upon the cogent

reasons set forth in the’ dissent of Judge Craven and

that the decision of the Court of Appeals for the Fourth

Circuit should be reversed with the direction to the

District Court to try the case on its merits.

Respectfully submitted,

Howarb I. LEGUM and Louis B. FINE

Counsel for Norfolk Monument

Company, Inc.

FINE, FINE, LEGUM & FINE

720 Law Building. ©

Norfolk, Virginia 23510

Attorneys for Petitioner

Bev Beas Mew

Pig

Matis.

Aah tia te AM Wc detail Aka ek done S

APPENDIX

APPENDIX. A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT :

-No. 12,230

Norfolk Monument Company, Inc.,

Appellant, .

- versus

Woodlawn Memorial Gardens, ; eo

Incorporated, et al.,

Appellees.

No. 12,231

-. Norfolk Monument Company; Inc. .

Appellee, .

versus

Woodlawn Memorial Gardens, Inc., _ 7

Appellant . | | ;

No. 12,232

Norfolk Monument Company, Inc., — ,

Appellee, mM

versus 7 a

Princess Anne Memorial Park, |

;

Incorporated, and Rosewood

_ Memorial Park, Incorporated

Appellants.

Appeal from the United States District Court for the

, Eastern District of Virginia, at Norfolk.

John A. MacKenzie, District Judge.

(Argued June 19. 1968 Decided November 14, 1968).

Before BRYAN, “. {NTER and.CRAVEN, Circuit Judges.

Howard I. Legum (fine, Fine, Legum & Fine on brief) for

Appellants, and Michael E. Bowerman, Bernard Glasser and

Robert H. Patterson, Jr., (McGuire, Woods & Battle; Clyde

-W. Cooper, Jefferson B. Brown and Wm. C. Worthington on

brief) for Appellees. |

—_ .

ALBERT V. BRYAN, Circuit Judge: ”

An antitrust combination and conspiracy, 15 USC 1, ©

2, 15.and 26, are charged by Norfolk Monument Company,

Inc. to certain incorporated cemeteries .in the Norfolk,

Virginia area and also against the two defendants Jas. H. .

Matthews & Co., Pennsylvania and Virginia corporations,

respectively parent and subsidiary. The Matthews manufac- ©

ture and sell: bronze grave markers throughout the United |

States. Complainant i isa retailer i in- Norfolk of burial stones

and ia

woes ott: Lal SERRE

The accusation is that for “many years” prior to the

commencement of.this suit, December 16, 1965, the defendants

by agreement and concerted action have restrained the produc-

tion, sale and distribution of such items, and have monopolized

and attempted to monopolize interstate trade. and commerce

therciin. Upon respondents’ motion the suit was dismissed.in

summary judgment. We affirm.

; The inimical conduct ascribed to 0 the defendants in the

‘complaint i is this:

an a

oS Defendants Matthews, Penunyteanis and

Matthews, Virginia havé prepared, and the co-conspirators

Woodlawn, Rosewood, Greenlawn, Roosevelt and Princess

Anne have ‘adopted, various restrictive devices to prevent,

restrict and discourage sales of markers by plaintiff for

installation in the cemeteries operated by the co-conspirators

. Woodlawn, Rosewood, Greenlawn, Roosevelt and Princess ~

Anne. These restrictions include, but are not limited to,

the following:

Tr eee ee ee

> °

“(a) A‘requirement that all markers installed. in the

cemeteries operated by the co-conspirators Woodlawn,

~- Rosewood, Greenlawn, Roosevelt and Princess Anne .-

conform to a. specific minimum bronze alloy formula,

. said formula being the identical minimum formula used

by defendant Matthews, Pennsylvania in its manufacture

of markers;

“(b) A requirement that each marker not purchased

from the cemeteries Woodlawn, Rosewood, Greenlawn,

Roosevelt and Princess Anne, where the marker is ‘to be a

installed, be accompanied, at a substantial cost, by a

certificate of analysis, prepared by an independent labora-

' tory, attesting to the bronze alloy content of said marker;

and ,

& ““(c). The a assesment of an excessive and

“unreasonable instaflation, foundation and an

alleged care charge, for all markers not sold by

the cemetery where the marker is to be installed, -

said fee to include amounts substantially in

excess of the actual cost of installation.

*<4) By the enactment and keeping in effect

by Woodlawn, Rosewood, Greenlawn, Roosevelt

and Princess Anne, unreasonable and.illegal rules

and regulations, which. make it virtually impossible

for a lot owner to purchase a bronze grave marker

from dealers, such as plaintiff; ,

‘“(e) By refusing to permit the plaintiff, or any

other retail’monument dealer, to install grave markers

and the foundation therefor in said cemeteries ;

“(f) That the excessive and unreasonable charges

made by Woodlawn, Rosewood, Greenlawn, Roose-

velt and Princess Anne for installation, foundation

and alleged care, out of which it exacts an enormous

profit, make it virtually impossible for plaintiff to

compete in the sale of said markers with said Wood-

lawn, Rosewood, Greenlawn, Roosevelt and Princess

Anne, because panes cannot and does not exact :

‘any such charges.” |

Winnowing the defendants’ uncontroverted assertions

and plaintiff’s concessa from the supporting and counter

affidavits, interrogatories and depositions submitted with

__ the motion, the trial judge found that the plaintiff failed

to establish the combination or conspiracy, or the effec- _

tual or attempted monopolization, it laid to the defendants.

His opinion threshes the record very thoroughly and

demonstrates that the evidence does not disclose the -

AeA RA hot ae

presence of these indispensable elements even to the point of

tendering a genuine issue thereon. Norfolk Monument Company,

Inc. v. Woodlawn Memorial Gardens, Incorporated, et al.,

FSupp. __ (E.D.Va. October 3, spins We accept this refine-

ment of the proof. .

There was simply no direct evidence proffered by the .

plaintiff of a concert of action amoung the defendants. The.

only things the cemetery defendants had in common was that

‘they engaged in the operation of cemeteries; each sold burial

lots and maintained them; and each sold grave markers or plaques

and installed them. No joint activity is disclosed — not’even —

conferences or meetings. The closest evidence to this point was

that defendant Matthews’ sales representatives frequently visited

the cemeteries on business calls. This poverty of proof scarcely

made an issue of any kind — certainly none for a jury.

Moreover, the complaint’s.allegations of conduct and

. Circumstances suggesting a combination and monopoly failed ~

for want of any tender of proof of them. The District Judge

found the accusations wholly without foundation. On these

points he said in his opinion:

“Plaintiff’s allegations that Matthews would sell only

to cemeteries is negated by its own admission that it

purchased from Matthews as late as 1965 and terminated ©

such purchases only because it did not like the Matthews

product and because Matthews was then a defendant

in this suit.

“Plaintiff’s allegation that the defendant conioteries

bought only from Matthews was founded apparently on

an inspection by the-plaintiff’s President of these cemeteries

which indicated the installation of many of Matthews

markers. .He admitted, however, that he ‘saw others and had

had his company’s markers installed therein on occasion. It

was further shown that one defendant cemetery had no

eee mee

ote

, Fe th ae Baa ot

Da eNO IS OS.

Dec NB EAD Ss eS Blige bE Tab meds Be oe ew Ae on

Matthews markers at all, that some had as many as

fifty percent (50%) of a different brand; and that

a composite reading of all of the installations in all

of the cemeteries showed at least-thirty percent (30%)

.of a different manufacturer.”

Our-canvass of the record verifies the dearth of proof

in the particulars the District Judge just noted. A principal

factor in the plaintiff ’s contention of his exclusion from. .

competition with the defendants is the cemeteries’ regula-

tion prohibiting outsiders from installing markers. The

reasonableness of this rule was not weakened by the plain-

tiff’s evidence and is on its face apparent, as the opinion’

manifests:

“Plaintiff ’s allegation that itgs n not allowed to

install markers in the defendant cemeteries is admitted

by the defendants. Eact reserves to itself the right to

install all markers, regardless of from whom purchased.

In view of the continuing obligation of perpetual care

ff imposed upon the cemeteries, in its contracts with lot

owners, in the light of the duty to preserve the cemetery

property, ‘all as provided in the cemetery sales agreements

made plain to purchasers, such rules and regulations

cannot be termed unreasonable. This applies as well to

rules setting up specific alloy content as to bronze.

markers offered for installation one certification

_ : thereof.” s

The chief feature urged as s sevealing conscious parallels

of behavior by the defendant. cemeteries — and thus evincing

, joint and concerted action — is the fee demanded for install-

ing the markers. Of this item the trial court said:

‘The allegation that there is a conspiracy to be

uncovered in the fact that the charges are made by the

cemeteries for installation of markers, whether such

charges be conscionable or unconscionable is not only |

_-borne out but is denied in the plaintiff’s own proffered

exhibits of the different cemetery price scales.’ These

show on their face a wide divergence of prices which

‘would completely negative any systematic scheming or

* conscious parallelism. Plaintiff agreed that Matthews

did not pres¢tribe any charges.”

Moreover, the record points out that defendants’

installation fees, in addition to being divergent, were arrived

- at by totally different pricing policies. One chargéd:a flat fee

regardless of marker size; while the others charged a fee com-

puted on the square inches of marker surface area; and these

fees differed significantly.

The. exaction of the fee is accounted for by the memorial

parks as.embracing not alone the putting of the marker in ~

place and keeping it clean, but also such items as the requisite

constant watch over the condition of. the’markers, the repo-

sitioning of them when needed, and replacing them as necessary.

The argument that the installation payment was designed solely

to discourage plaintiff’s sales by increasing the cost of its

markers vanishes on consideration. ‘Without it the cemeteries

would be required to accept the plaintiff’s markers without

prospect of financial assistance in the attention to them in the

- future. No effort was made to show that the contributions

to the Virginia statutory trust fund would suffice to provide

* the moneys necessary for this continued care. At all events,

the standard of care may vary in different parks, and the

requisite reserve is a matter of good business seneaae —

_ Surely not a jury issue.

. The District Judge, too, “altogether justified the utili,

- zation of summary judgment for decision although, granted,

it should be ew practiced”, Poller v. Columbia

sal

Se ~: .

a an AAA a Ss Bi CAA as Nena AACR AOA ee eens dine vi OS Qe

- Broadcasting System, Inc. 368 US 464, 473 (1962):.

er ne in Soret t de ae a alt is naw Seen St on peda

ad é . .

cf. First National Bank of Arizona v. Cities Service © = 3 *

©o., US 36 L.W. 4394 (1968). No

prejudice is shown by the plaintiff and a fair dispatch

of the case was cere

‘Affirmed.

-_*

. . Professor Turner to his authontative article: Turner

CRAVEN, Circuit Judge, dissenting:

_ Before it can be concluded that there has been a’ “‘contract,

comibinatiog conspiracy” sufficient to invoke Section | of the

: ~~ ,

Sherman Antitrust Act, it must be found that there wasan

“agreement” (implied or express) between two or more persons

or corporations. The issue presented by this appeal, “only

glancingly dealt with by courts,” is “whether and when agree-

ment can be found in ‘consciously parallel’ decisions by competi-

tors” to adopt substantially identical exclusionary restrictions -

with respect to the sale and installation of grave markers. !

In Interstate Circuit, Inc. v. United States, 306 U.S. 208

(1939), the Supreme Court affirmed that in order to make out

a case for the jury it is not essential that the plaintiff establish\

a prior agreement. “Acceptance by competitors, without P

previous agreement, of-an invitation to participdte in a plan, @ j =

‘ the necessary consequence of which, if carried out, 1s restraint

of interstate commerce, is sufficient to establish an unlawful

conspiracy under the Sherman Act [where each competitor | x

knew that cooperation was essential to successful operation

of the plan].” Jd. at 227. ‘

Even so, the. court affirms the granting of summary

. judgment despite the warning in Poller v. Columbia Broad-

casting System, 368 U.S. 464, 473 (1962), that “summary

procedures should be used sparingly in complex antitrust

litigation where motive and intent play leading roles, the — A . &|

proof is largely in the hands of the alleged conspirators, and .

hostile witnesses thicken the plot.” As I read the record, it -.

is simply full of examples of insufficiently explained parallel

behavior from which a jury could reasonably find an “‘agree-

ment” to violate the Sherman Act. Moreover, the remarkable

ENON Cees 2 yen emote

allt

1. The fi ing i hrased’ lication to this case of the introduction by :

on Tennat to Wh eathocitatine 2 The Definition of A cement

. Under the Sherman Act: Canscigus Parallelism and Refusals to Deal, 75 Rarv.. 7

Rev. 655 (1962). aa -* 2

parallelism of conduct might reasonably be traced to

sophisticated and subtle invitations extended by manufac-

. turer Matthews to the trade. In evaluating ‘“‘motive and

intent” Ido not think it entirely without sig&ificance that

manufacturer Matthews is.not inexperienced in questions

of amMitrust,? about which I will have more to say later.

Defendants have urged upon us that the remarkably

uniform practice of charging virtually prohibitive installa-

tion fees to permit the use of an outsider’s grave marker

and the other’similar exclusionary rules and regulations

are prompted and justified by-legitimate business and _

economic reasons. I shall attempt to demonstrate that .

a jury might reasonably conclude to the contrary, but

before doing so, I should note that if the evidence supports

-a finding‘of concerted action to limit or- exclude plaintiff's

trading opportunities, such group action is a per se violation

of the Sherman Ast and hence is not. subject to the test of

reasonableness. “Radiant Burners v People Gas Co., 364

U.S. 656 (1961); Fashion Originator’s Guild v. Federal

Trade Commission, 312 U.S. 457 (1941). °

“hs

2 “*(P] ast proclivity _. to unlawful conduct may’ be of some significance

where the [alleged conspiracy fs identical in scope and nature to a previous

one] a Milgram v. Loew's, Inc,, 192 F.2d 579, 584 (31d Cir. 1951).

3. “[T] here are certain agreements or practices which because of their

pernicious effect on competition and lack of any redeeming virtue are

conclusively presumed to be unreasonable and therefore illegal without *

elaborate mquiry as to the precise harm they have-caused or the business

excuse for their use.”” Northern Pacific Ry. v. United States, 356 U.S. 1,

5 (1958). The stock ‘exchange, tobacco warehouses and trade association

cases are rightly ¢d not as an exception to the rule but as distinguish-

. able because the p¥€sumed purpose of group action (generally with some

degree of state control) is not to eliminate or exclude competition but,

instead, to improve public service. Silver v. New York Stock Exchange,

373-U.S. 341 (1962); Board of Trade of ow, v. United States, 246

_ U.S. 213 (1918); Asheville Tobacco Board of Trade v. Federal Trade .

* Commission, 263 F.2d $02 (1959). See Oppenheim, Federal Anti-Trust

Laws 661 (2d ed. 1959). 4th Cir. es

Since the question is whether or not the case should be

submitted to a jury, it can only be answered by a somewhat"

detailed analysis of what the evidence might be but for the

granting of motion for summary judgment. There follows

such an appraisal:

o on

THE EXTENT OF PARALLELISM

The record discloses: .

_ (1) Despite the unskilled nature of the work,’ all

of the memorial parks refuse to permit the plaintiff to

install markers sold by it; all of them insist that the work

-be done by the cemeteries. themselves. |

(2) None of the memoiial parks charges lot owners a

separate installation fee in the case of markers purchased

from the cemeteries.‘ .

(3) All of the memorial parks require the payment of

an installation fee by the plaintiff for installing markers

purchased from the plaintiff. ‘The plaintiff plausibly

maintains that the actual cost of installation comes to

about $3. Yet, enormous installation fees are charged

plaintiff, and there is remarkable similarity in the

amounts charged:

_ 4, It is said by one of the defendants that installation consists of pouring concrete

in a prefabricated form, placing the marker in the wet concrete, removing the form

after concrete hardens, digging a hole ‘of proper’ size at the grave site to a depth of

five or six inches and laying the marker and foundation in the excayation. Green-

ori » Pp. 130, 131. The cost of the mortar is

. Gregory, Vol. 1, pp. 264-266.

5. Plaintiff's interrogatory #7 states: “[S]tate-the amount of installation charge by

each of the defendarit cemeteries paid by lot owners who purchased the markers

directly from the. cemetenes of both single and double markers for the years 1960

through 1965.” In respomse to this question, Roosevelt, Woodlawn, Rosewood and

Princess Anne stated simply that the installation fee (charged to lot owners who

purchase from the cemeteries) was incladed in the puschege Price, without indicating

the amount. Greenlawn made the conclusory statement that the fees were the same

- as charged to the plaintiff. ,

Sad SRPMS RMN TN TR

’

ee ee

™

AE POP RK EE AMINE ET ESET OPTS TE MF LOT PYRE EM.

. Fees Charged Plaintiff for Installing

44x14 Double Bronze Memorial Plaques

Rosewood ; $154.00 ©

Princess Anne $154.00

Woodlawn $175.00 °

Greenlawn ; $160.16 -«*.

+ Roosevelt $123.20.

- Fees Charged Plaintiff for Installing

24 x 14 Single Bronze Memorial Plaques

"Rosewood $ 84.00

Princess Anne _$ 84.00

Woodlawn. “$175.00

Greenlawn | $ 87.00

Roosevelt ~ $ 67.00

‘Roosevelt caters to a lower-income clientele. In the

case of the other four memorial parks, the installation

, fees charged for 44 x 14 plaques fall within.a range of

$21. Woodlawn inexplicably charges the same fee for

. the installation of both sizes of markers. The fees

charged by Rosewood, Princess Anne and Greenlawn

for'24 x 14 markers fall within a range of $3. There is

No evidence in the record explicative of such parallel

behavior. »’ : . :

‘ (4) All of the memorial parks require a specific

alloy content in the bronze markers installed, and

reserve.the right to reject non-conforming markers. The ~

alloy content requirement happens to be the same as

manufacturer Matthews’ markers and the same as is

‘128 |

distributed by Matthews to its customers.® All of the

implicitly suggested in a pamphlet (“Modern Cemeteries”)

meémiorial parks except Roosevelt are customers of Matthews.

. (5) There is evidence that Greenlawn,’ Woodlawn® and

Princess Anne? have attempted to. dissuade lot owners from

purchasing markers from the plaintiff. The affidavit of

plaintiff’s president states that numerous other incidents of.

this nature have occurred.! 0 e ae

(6) Defendant Matthews, in its pamphlet “Modern

Cemeteries,” suggests a number of practices which in effect

erect competitive barriers to retailers other than the ceme-

teries themselves.! !

- . (7) Many-of these practices have been adopted by the

memorial park defendants, as-evidenced by affidavits in the

record,!2 arid by the “rule hooks” of Rosewood, Princess

é n

Anne and Greenlawn.! 3

—_

6. Matthews is under an injunction prohibiting it from making any suggestions to

memorial parks as to the quality of markers installed in the parks. See note 19.

However, on page 7 of “Modern Cemeteries,” undér the heading ‘MEMORIALS,”

Matthews states this fact and then immediately below recites the atloy content

of its markers. See “Modern Cemeteries” at 7. . ;

7. Affidavit of Mrs.R. W. Garrett, Vol. 1, p. 287. .

8. Affidavit of James A. Beasley, Vol. 1, p. 288.

9. ‘Affidavit of Mr. and Mrs. G. C. Brehm, Vol. 1, p. 290.

10. Affidavit of Charlie C. Gregory, Vol. 1, pp. 264, 267-270. |

11. “Our attorneys have indicated that any Cemetery would be well advised to -

notify all lot owners of the conditions in the Rules and Regulations relating to

‘MEMORIALS’ and the-charges for installation and maintenance so that there

cannot be allegations by lot owners, that they were not so notified.”” “Modern

‘Cemetenies,”’ p. 11. ——

“MEMORIAL RULES AND REGULATIONS”

1. “Oweing to changes made from time to time in the type of memorials

permitted in various sections, it is suggested that Owners consult the Cemetery

before orders are placed with memorial dealers, in order to comply with rules

governing the type permitted in certain sections. Rules governing the erection of

memorials are strictly adhered to.” é

2. “All mausoleums,- monuments, memorials, headstones or structures of

any kind must be built according to the rules and regulations of the Cemetery.’

** *£ *& & & *

‘ . ‘ (Cont. page 14)

l3a :

OPENACS) GM. EEDEETMR HERI MS he SO

MR er pe no ele ten Bent Oo

(8) There is evidence of numerous Visits to and

conferences with the memorial parks by sales: repre-

sentatives of Matthews. !4

I notice, also that this is at least the fourth time:

Matthews has been named co-defend: t with memorial:

parks in antitrust actions attacking the same practices

here under scrutiny. Each-of the previous actions,

Booth v. Jas. H. Matthews & Co., No. 60-418-Civ.

_(W.D.Pa. 1963), Kaeppler v. Matthews, No. 25618-

Civ. (E.D:Pa. 1963), and United States v. Jas. H.

Matthews & Co., No. 16818-Civ. (W.D.Pa. 1958),

was settled by a consent decree enjoining the specific -

_ practices here under attack.!5 While no issue of fact

(Footnote 11 cont. from page 13)

. 8. “Plans or sketches, with measurements, descriptions and- specifications

of all stonework or bronze to be placed in the Cemetery, must be submitted to

the Management for examination and written approval before a foundation order

for the work will be accepted; and in the case of monuments, memorials and

mausoleums, detailed specificutions must accompany the plans.”

* * . *

11. “The’Management reserves the exclusive right to reject all work which, .

on account of design, workmanship, material or faults of any kind, is in its

Opinion unsatisfactory.”

12 “All foundations of any kind shall be installed by the ee the

charges for which shall be reasonable and payable in advance.”

* * *~ *

25. *All.monuments, markers and memorials which do not conform

' to the rules and regulations in sections'in which they we placed will be removed.”

. . * * lt ae a . ° °

29. “Cleaning of memorials by outside firms is not permitted.”

‘Modern Cemeteries,” pp. 18C, 18D.

- (12. See,e.g., affidavit of Charlie C. Gregory, Vol. 1, pp. 264- 273.

13. Vol. 1, pp. 319, 332, 354.

14. See answers to plaintiff's interrogatories #8 and #9. :

15. The decree in Booth v. Jas. H. Matthews & Co., No. 60-418-Civ. (W.D. Pa.

1963), provided in its material respects:

* * * *

——

_ “(A) Each of the cemetery defendants is enjoined and restrained —

from:

-- : (cont. page 15)

I 2 |

was litigated or admitted in these cases, it is not-unreason-

able to suppose that such litigation is of interest to the

trade, and if reported to the trade, would tend to “educate”

defendants as to common methods of doing business.

pie e

(Footnote 15 cont. from page 14). ,

(1) Requiring any person owning a lot or lots in any cemetery

owned or controlled by it'to purchase any marker from it.

*(2) Refusing to install a marker that complies with the conditions

described in this Final Judgment in any section of its cemetery

wherein markers are permitted, and refusing to permit the installation

of such markers where the cemetery defendant itself declines to make

the installation.

(3) Discriminating between lotowners purchasing markers from it

and lotowners purchasing markers from other persons ii any or all the

following respects:

“(a) the amount of charges for installation or maintenance of a

_ marker; : j

“(b). the Services included in the charges for installation and

maintenance of a marker; .

“(c) the period of time following delivery of the marker to the

cemetery within.which 11 shali be installed.

“(4) Informing its lotowners that markers cannot be purchased for 3

instaliation in its cemetery. from any person other than it.”

. Named as.co-defendants with Matthews in this action were 19 Pennsylvania '

memorial parks: Forest Lawn Gardens, Inc., Sunset View Memorial Park, Penn- 3

Lincoln Memorial Park, Inc., Rose Lawn Memorial Gardens, Inc., Sunset Hill

Memorial Park, William Penn Memonal Park, Restland Memorial Park, Monon- we

— Valley Memonial Park, Sylvannia Hills Memorial Park, Inc , Allegheny

ounty Memorial Park, Greene County Memorial Cemetery CoMpany, - : fi

Lafayette Memorial Park Cemetery, Greenwood Memorial Park, Inc., Westmore- :

tand County Memorial Park, Inc , Somerset County Memorial Park, Lakewood ;

Memorial Ga:dens, Inc., Hollywood Memorial Park, Inc., McKean Memorial Park. P

An identical decree was entered against 15 He ere memorial parks (#n both . 4

actions Matthews was dismissed as a party-defendant) in “Kacppler v. Matthews,

. No. 25618-Civ. (E.D.Pa. 1963). Enjoined from*the practices recited above 4

were the following: George Washington Memorial Park, Inc., Edgewood ae

Memorial Park Company, Glenwogd Memorial Gardens, Inc., Philadelphia = :

Memorial Park, Inc., Rolling Green Memorial Park, Inc., Sunset Memorial ew

Park Company, Valley Forge Gardens, Inc., Westminister Gardens Cemetery ;

Company, White Chapel Gardens, Inc., Whitemarsh Memorial Park Cemeteries

Company, Inc., Northhampton Memorial Shrine, Inc., Ceder Hill Memorial j

Park, Inc., Arlington Memorial Park, Forest Hills Memorial Park, Inc., ;

Schuylkill Memorial Park, Inc., Sky-View Memorial Park, Inc.

‘In United States v. Jas. H. Matthews & Co., No. 16818-Civ. (W.D.Pa. 1958), * .

Matthews was enjoined from the following practices: =

* * . * . .

sah ated

(Cont. page 16)

See Milgram v. Loew’s, Inc., 192 F.2d 579, 584 (3rd Cir.

1951). The Matthews’ pamphlet, ‘Modern Cemeteries,”

makes express reference to the antitrust troubles of the

‘memorial park industry.! 6

(Footnote 15 cont. from page 15)

“(D) Making any suggestion or recommendation for any cemetery

the purpose or effect of which is, or may be to eliminate or restrict sales, .

by any person, of bronze ‘markers for installation in such cemetery. .

“2 * * #* ®&

“VI

“(A) The defendant is enjoined and restrained from, directly or

indirectly, selling markers to any cemetery with knowledge that such

cemetery:

- “(1) reserves to itself the enitheaive right to sell markers for

installation withjn its confines; or

“(2) refuses to install bronze markers reasonably appropriate for

— in said cemetery, which are sold by other retail marker

rs: ;

“(3) has any rule, regulation, or follows any larly estab-

lished course of conduct which makes it saneaneal ly difficult

or more costly to have installed within its confines bronze markets

sold by — other than such cemetery. — .

o * * * %

“VII

- The defendant 1s ordered and directed not later than ten (10) a after

_ the effective date of this Final Judgment:

“(A) To mail a copy of this Final Judgment to each person

; engaged’ in selling markers or monuments at retail, who, since January 1,

1954 has purchased, or who, to the knowledge of the defendant, has

sought to purchase, markers from the defendant ......” .

The record does not indicate whether the defendants in this action -

received copies of the above-quoted consent decree.

16. See “Modern Cemeteries,” PP- 1, 17.

. -

I FFECT OF PARALLELISM

The only record evidence of profit margin enjoyed by the

_ memorial park defendants in marker sales appears in the answer

to interrogatories of Woodlawn Memorial Gardens, Inc. The

record shows the retail prices charged by all of the memorial

parks, but wholesale cost is reflected only as to Woodlawn.

. Woodlawn’s cost and sale price of 44 x 13 double bronze

memorial plaques is as follows: _ |

YEAR COST ' SALE PRICE

1960 $100.00. ‘$300.00

- 1963 ‘$117.00 $350.00

1966 $125.00 $375.00

Woodlawn’s cost and sale price of 24 x 14 single bronze memorial

plaques is as follows:

YEAR - [ne SALE PRICE —

1960 $ 56.00 — $168.00;

1963 $ 59.00 $175.00 :

1966 $ 63.50 $190.00 |

Woodlawn’s answer to interrogatories indicates that the

. above-quoted.fees include “all perpetual care, de and

attendant service, together with guaranteed replacement, if

necessary.” If it can reasonably be inferred, as, infra, I think it

can, that these expenses are negligible and/or are funded by an

independent source, it would appear that defendant Woodlawn

markets it goods at a 200 percent markup over Cost.

A discovery exhibit indicates that the plaintiff’s supplier,

Meierjohan-Wengler, Inc:, charges $76 for a 24 x -14 marker and

$1 72 for a 44 x 14 marker, thus making plaintiff's. wholesale

costs greater than. Woodlawn’s. The record contains direct

. evidence of plaintiff’s retail prices: a random sample of (record)

invoicesdated1963 through 1966 discloses that plaintiff has

| charged an average price of $175 for 24x 14 single marktrs,

and an average price of $338 for 44 x 14 double markers.

The installation. fee charged by the memorial parks is absorbed

by the plaintiff and not passed:on to the customer (except as

contained in the price charged the customer for the marker).

_ Inferring, as, infra, I think a jury reasonably could, that

Woodlawn’s overall costs (including perpetual care for the

markers) are approximately the same as, or less than, plain-

_tiff ’s, plaintiff is placed at an impossible competitive

disadvantage by the enormous installation fee: in order to

meet Woodlawn’s price, plaintiff must suffer a loss on each

sale of a 24x14 marker to a Woodlawn lot owner, eg;

Retail sale price: - rs $190. 00

Marker cost to Plaintiff _ $ 76.00 |

Installation fe ee a $175.00

$251.00 ‘s

LOSS : _ $61.00

Moreover, it would appear that plaintiff can. make only =

gross profit of $38 ona sale of a44x 14 marker,eg, , .

Retail sale price: $375.00

Marker cost to Plaintiff. $172.00 ~

Installation fee $175.00

ae &347.00

. | _PROFIT *. * $ 28.00 .

This i is to be contrasted with Woodlawn’s apparent gross

profit of slightly less than $250 per marker for 1966, and |

the marker i is one inch smaller than that offered by plain-

= #

Veet presents the most extreme case, among. -the

memorial park defendants, of the impact of the installation- -

fee practice on plaintiff’s trading opportunities. But on ‘the

18a

Same hypothesis the plaintiff's costs in ‘sale of nttion to.be

installed at all the defendant cemeteries is increased. by the

amount of the installation fee, from.a high of $175 (Woodlawn)

to a low of $67 (Roosevelt for 24 x 14 markers). Thus 2 jury

could find that the installation-fee practice, together with |

other practices of the m orial parks; is-calculated virtually

to exclude plaintiff from the market. 17

DEFENDANT S BUSINESS JUSTIFICA TION

The memorial parks contend that the installation fees

charged are justified by the expenses of perpetual care and.

maintenance. Unquestionably, I think, a jury could find

otherwise. Of the answers to interrogatories, only Green-

lawn’s indicates the actual maintenance involved in caring.

for the markers.!8 Of the answers to interrogatories, only

Roosevelt’s! 9 discloses the portion of the installation fee

(paid by plaintiff) allocated to perpetual care of the markers,

which it claims is $10. There is no record’ evidence of actual

outlays for marker maintenance. On the other hand, a main-

tenance form published by Matthews2° states that “water”

17. Plaintiff” s quemdent testitied that Norfolk Monument has suffered extensive

loss of. marker sales. because of the exclusionary practices here under attack.

See discovery deposition of Charlie C. Gregory, Vol. Ill, pp. 59, 77-80.

18. See Vol. 1, pp. 130, 131. Greenlawn indicates that perpen care for the

markers involves only the following: ' 6

“1. Cleaning memonial periodically, usually every two to three weeks

“a on around memorial by hand during the growing season

variety (Bermuda or Wild grass) specifically of which would i .

completely across a marker in this period of time.” Jd. at 1

19. Vol. 1. pp. 124, 125.

20. See Vol. 1,\pp. 278, 279.

Qa *S |

(rainwater?) is the best cleansing agent for the plaques. The

discovery deposition of plaintiff's president, Charlie al Gregory,

contains the following testimony:

(Mr. Gregory) “‘As far as perpetual care, if the

cemetery‘deliberately goes out there and ruins the marker,

then I would not be willing to replace it. But as far as

lasting forever, it is of enduring metal. It will not deterio-

rate. It will not rust. What is perpetual care? No one

gives.a plaque perpetual care.

“Q Are they polished?

‘““A No, they are not polished.

ic “Q. Are they grass trimmed?

\ “A That is maintenance of the cemetery. That is not for:

the plaque. That is your grass maintenance. ‘The customer pays

\~ for that when he buys the lot. .

\ | Q° In.other words, your testimony would be that there

* 4s no such thing as perpetual care of a ‘bronze marker? .

“A That is correct, yes, sir. All of the attention it ever

needs is a little rain now and then to wash it off, or either:

"a little-water to wash it off. ) '

“Q So according to your testimony there would not ’

be any reason for making any provision for. perpetual

care? ;

“A That-is correct, yes.”

: If in fact substantial outlays are required for marker main- aa

tenance (it seems doubtful on this record), itis clear that apart“

_ from installation-fee: revenue, ample funds exist to provide’ for

mair tenance of the plaques. Each of the memorial parks is

required by Virginia-statu“e to maintain an ‘endowment trust

fund,” for perpetual care purposes, of at least $25,000, 8:

Code of Virginia § 57-35.2 (1968 Cum. Supp.),?! and to

attribute ten percent of the purchase price ofeach lotto.

the trust, 8.Code of Virginia § 57-35.3 (1968 Cum. Supp.).??

The income fromthe trust can be devoted only to perpetual |

care purposes. 8 Code of Virginia § 57-35.8 (1968 Cum.

Supp.).23 ae

‘21. “After June twenty-sixth, nineteen hundred and sixty-four, it shall

’ be unlawful for any person, firm, association o1 corporation, hereinafter

referred to as ‘persqn,’ owning, operating or developing any cemetery to

sell or offer for sale in this State, either as principal o1 otherwise, any

lot, parcel of land, bunal or entombment nght in such cemetery, and in

connection therewith to represent to the public in any mannet, express

or implied, that the entire cemetery, a single lot therein, or burial or

entombmentanght therein will be perpetually cared for, unless adequate

: —— has been made for the endowment care of the cemetery and all

ots, burial or entombment nghts therein as to which such representation

has been made. Each person who shall undertake to develop any such

cemetery after June twenty-sixth, nineteen hundred and sixty-four, shall

deposit in a bank in this State in an urevocable endowment trust fund a

minimum of twenty-five thousand dollars before the first lot, parcel of

land, burial or entombment right has been sold.”

22. “Each person owning, operating or developing any such cemetery

before or after June twérity-sixth, nineteen hundred and sixty-four shall

hereafter deposit in a bank in this State, or in another state, if such __

person has, priorto June twenty-sixth, nineteen hundred and sixty-four,

entered into a trust agreement by which he is required to make at least

the minimum deposit required hereunder, a minimum of ten per centum

of the selling price of each lot, interment right, and above ground crypts

and niches, excluding below ground burial vaults, sold, which amount

shall be paid in cash and deposited with the trustee of the care fund :

not later than thirty days after-the close of the month in which payments

on the sale are completed.” e \

23. “The income from the endowment care fund shall be used solely

and exclusively for the general care, maintenance, administration and

embellishment of the cemetery and shall be applied in such manner as the

person- owning, operating or developing such cemetery may from time

to-time determine to be for the best interest thereof.”

: a J

| at

, \:

‘Hence I see no reason why a jury could not reasonably ,

‘reject deféndant’s story and find, on the contrary, that the ~

| deféndant memorial parks insist upon af exorbitant instal-

“fation fee i in order to ‘exclude plaintiff from competing with

'. their own retail sales of markers. Such as inference seerfis

to me strongly supported by evidence that (a) actual instal- _

ation costs $3 plus unskilled labor of two men for perhaps

~ an hour, (b) the best cleaning agent is plain water and (c)

adequate funds for perpetual care are required by law to be

- derived from lot sale revenues and income from the $25,000

minimum care fund,. To ‘insist in the face/of- such a record

that charging. plaintif f an installation fee of as much as $175

"per marker is so clearly, related to expense incurred that no

other. inference maybe drawn seems to me patently absurd.

At the very least. there is presented a material issue of fact.

. Thus, there is at best only questionable business justi

fication for those parallel practices which tend to the virtual’

- exclusion of plaintiff from the market’ Further, I think’

the record presents an issue of fact for trial over whether the

formation of those parallel practices resulted from individual’

‘or concerted action. /

, PROOF OF THE CONSPIRACY.

Viewing the evidence most favorably to the plaintiff’s

case, Poller v. Columbia Broadcasting Systems, Inc., 368 .

U.S: 464, 473 (1962), I think the answers to interrogatories,

discovery exhibits and affidavits, together with the pleadings,

present an issue of fact for j jury trial as to the existence of a

tacit agreement to limit and destroy the plaintiff ’s trading »

. een eae | :

- The evidence’ recited, supra, shows parallel behavior on

the part of, the memorial park defendants. That along.js not |

22:

enough. Turner, The Definition of Agreement Under the .

Sherman Act; ConsciousParallelism as] Refusals to Deal, °

supra, at 658. However, I think the record justifies the

inference, and a jury could so find. that the defendants

were mutually aware of the others’ restrictive practices

Against the background, of antitrust litigation over identical °

practices?4 (involving the defendant Matthews) such an

inferencé, seems Clearly permissible. Tine Matthews pamphlet,

“Modern C emeteries,” containing, supra, references to

antitrust problems and suggestions to circumvent Jegal

entanglement, could, I think, fairly be characterized as

a “joint invitation” to participate in the tacit agreement

here alleged. Interstate Circuit v. United States, supra. .

Moreover, as previously noted, the record does contain

_ direct evidence of frequent conferences between the -

memorial parks and representatives of defendant Matthews, M

_ the alleged hub of the conspiracy.25

. On facts closely analogous to tose »resen es here,

the Tiird Circuit has said, | _ .

“Our starting point in analyzing the evidence is.

the complete unanimity with which all the distributors

refused to license features on first run to plaintiff and.

the substantial unanimity with which they gave the .

Boulevard [plaintiff's drive-in theater] a 28 day [delayed

showing] status . . ... This uniformity in polices ‘orms

the basis of an biderenoe of joint action.” Milgra:.: +.

Loew’s, Inc., 192 F.2d 579, acted Cir. 1951) (emphasis

added).

_ 24. See note 15. ’

25. See note 14 and accompanying text.

23a

ADENINE me we . Lavstes

Thus, in Milgram, evidence of conspiracy wasfeundin

_ participation in, or in mere acquiescence in, parallel busi-

_ness practices, even without'a showing of invitation and

acceptance such as was present in Interstate Circuit. Id:

at 583-84. —

In this case, the defendants’ entitlement to summary

judgment is rested on testimonial denials of the existence

of an agreement, coupled with plaintiff’s failure to come

forward with direct evidence. “But in this modern era of

increasing subtleties, it is rare indeed for a conspiracy to

be proved by direct evidence. ‘There is no dispute over.

the proposition that circumstantial evidence will sustain

‘a finding of conspiracy.” Milgram v. Loew’s, Inc , 192 F

2d 579, 583 (3rd Cir 1951). While a party opposing a

motion for summary judgment cannot rest on conclusory

allegations, Robin Construction v United States, 345

F.2d 610, 614 (3rd Cir. 1965), the burden is upon the.

-- movant to establish that no issue of fact remains for

\tnal. Liberty Leasing Co , Inc v Hillsun Sales Corp,

380 F.2d 1013, 1014 (Sth Cir. 1967) The defendants

have, in my opinion, failed to come forward with an

explanation for their parallel behavior which a reason-

able juror could not disregard.

Where the plaintiff’s case necessarily turns on

inference, and where it is not “quite clear what the ,

truth is,” Poller v. Columbia Broadcasting Systems,

Inc , 368 U.S. at 467, I would, in a conspiracy case, be

disinclined to cut off the right to have a jury draw the —

proper inferences. Poller v. Columbia Broadcasting |

Systems, Inc., supra; Devex Corp. v. Houdaille Indus-

tries, Inc., 382 F.2d 17 (7th Cir. 1967); Six Twenty-.

_ Nine Productions, Inc. v. Rollins Telecasting, Inc.,

365 F.2d 478, 485 (Sth Cir. 1966); Wurzberg Bros.,

_- Inc. v. Head Ski Co., 276 F. Supp.-142 (D.N.J. 1967).

24a

Evidence of conscious parallelism raises fact issues requiring

the trial judge to submit thé issue of conspiracy to the jury.

Theater Enterprises v Paramount Distrib Corp , 346 U.S.

$37, 542 (1954).

Finally, I think we should not overlook the fact that

one of the major evils against which the antitrust acts were

designed to guard is the exercise of “the power arbitrarily.

to enhance prices . : . .” Standard Oil Co. of New Jersey

_v. United States, 221 U.S. 1, 52 (1910). It is partially -

_through’the “private prosecution” of these antitrust suits

that the congressional policy of protection of the public

is implemented: I.am not so naive as to suppose that mere

admission of Norfolk Monument to competition will bring

the high prices of grave markers tumbling down. But even

a little competition may help —.and a little competition

can invite more. .

I would affirm the district court-as to defendant

. | Jas. H. Matthews & Co. of Virginia, which appears to be

- in the case by error. As to the parent Matthews company

and the other defendants, I would reverse and remand for

a. by j jury.

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_APPEN DIX B

United States Court of poner ve

FOR THE FOURTH CIRCUIT.

No. 12, 230

Norfolk Monument Company, Inc.,

Appellant,

VS.

Woodlawn Memorial Gardens, Incorporated; |

Rosewood Memorial — Incorporated;

et als.,

Appellees.

No. 12,231

ne Norfolk Monument Company, Inc.,

; 7 Appellee,

vs. |

Woodlawn Memorial Gardens, Inc., _ ae

; | Appellant.

No. 12,232

Norfolk Monument Company, Inc.,

7 | Pak | Appellee,

vs.

Princess Anne Nemorisi Park, Incorporated,

_and, Rosewood Memorial Park, Ineorporated,

; . :

Appeals from the United States District tuk for the

Eastern District of Virginia, at Norfolk.

Upon the motion of the Norfolk Monument

Company, Inc., by its: counsel, and for cause shown,

27a

BS AIS EMP EL te A OO St OG IN Ne Tak oa

It is ordered that the mandates in the above-

entitled cases be, and they are hereby, stayed pending

application, of the Norfolk Mon&iment Company, Inc.,

in the Supreme Court of the United States for a writ

of certiorari to this Court, provided the application is

filed in the said Supreme Court within the time pre-

_ scribed by law. ~~ bea: Ee

/s/ALBERT 'V. BRYAN.

United States Circuit Judge

. FILED NOV. 22, 1968 z

* SAMUEL. W. PHILLIPS, Clerk.

A True Copy, Teste:

Samuel W. Phillips, Clerk

“By Jo Ann C, Kirkpatrick/s/ ”

Deputy Clerk

28a

| eabbeieeee C

“CIVIL ACT ION NO. 5331

NORFOLK MONUMENT ea alae INC.,

L Plaintiff,

/ WOODLAWN MEMORIAL GARDENS,

INCORPORATED, et al,

| Defendants. -

ORDER |

This action came on the 27th day of: September, 1967, to

be heard on the Motions for Summary Judgment. hereto-

fore filed by the defendant Jas. H. Matthews & Co., Jas. H.

Matthews & Co. of Virginia, Greenlawn Cemetery Park

Corporation, Princess Anne Memorial Park, Incorporated,

Rosewood Memorial Park, Incorporated, and Woodlawn

Memorial Gardens, Incorporated’ upon the Motions to Dis-

‘miss the Plaintiff’s action, filed by Greenlawn Cemetery

Park Corporation, Princess Anne Memorial Park, Incor-

porated, ‘Rosewood Memorial Park, Incorporated and

- Woodlawn Memorial Gardens, Incorporated; and upon the

Motion of Woodlawn Memorial Gardens, Incorporated -to

strike the affidavits filed by the plaintiff in response to the

Motions for Summary Judgment.

It is ORDERED that the motions of ‘the several defend-

ants to dismiss the plaintiff’s action and the motion of the

defendant, Woodlawn Memorial Gardens, Incorporated, to

strike the affidavits filed by the plaintiff to be held in

abeyance, decisions on said motions being rendered unne-

cessary by the judgment of the Court on the Motions for

29a

he oe es aia ete ned a ee

Summary Judgment, to which action of the ‘Court each of

the moyants object.

The Court having considered the pleadings filed herein,

the depositions of the officers of the plaintiff, the interroga-

tories propounded by the plaintiff and answered by the de-

fendants, the documents produced by: the parties pursuant

to appropriate motions and orders, the affidav its and briefs

submitted i in support of and in opposition. to, the motions,’

* and having considered the argument of counsel, the Court ~

finds, in accordance with its memorandum filed herein on

the 3rd day of October, 1967, that no conspiracy or agree-

ment existed between the defendants, or any of them,

and that there is no genuine issue as to any material fact

and that the defendants are entitled to judgments as a

matter of law. .

WHEREUPON, it is ORDERED that the defendants’

Motions for Summary Judgments are granted and that this

cause is dismissed at plaintiff’s cost, with prejudice, to

which action the plaintiff objects.

Joun A. MAcKENZIE

United States District Judge

Norfolk, Virginia, stoniaiiea 14, 1967.

APPENDIX D

| NORFOLK DIVISION |

~ CIVIL ACTION NO. 5331

NORFOLK MONUMENT COMPANY, INC.,

Plaintiff,

Vv.

WOODLAWN MEMORIAL GARDENS,

INCORPORATED, et al,

A cememenan

30a

MEMORANDUM

The plaintiff, Norfolk icnnnbent Compz2ny, is a local

retail dealer in cemetery monuments and offers as part of

its liné, bronze cemetery markers W hich it sells and also

installs.

' The defendants are. Jas, H. "Matthews & Co., a ceme-

tery marker manufacturer and wholesaler, Jas. H. Mat-

thews- & Co. of Virginia, a printing material distributor,

_ and four memorial park type- cemeteries in the Norfolk,

‘Virginia area, namely, Woodlawn Memorial Gardens, In-

corporatéd, Princess Anne Memorial: Park, Incorporated,

Rosewood Memorial ,Park, Incotporated, and | Greenlawn

Cemetery Park Corporation,

This suit was*instituted on December 16, 1965, seeking

treble damages and injunctive relief under the Sherman

Anti-Trust Act, 15 U. S. C. A., §1 and 2, et seq., and

charges that the “. . . said defendants have combined and.

conspired with the co-conspirators to— monopolize, have

attempted to monopolize, and have monopolized in afore-

said interstate trade and commerce in the manufacture, sale

and distribution of the in in violation of Section 2

of the Sherman Act. .

Specifically, the complaint says that the conspiracy is

(a) aimed at preventing and restricting the sale of bronze

markers in the defendants’ cemeteries; (b) that defendants’

cemeteries buy all their requirements from Matthews; (c)

that markers, to be acceptable ; for installation in deféndants’

_ cemeteries, must be of a specific alloy content; (d) the alloy -

content of markers must be certificated; (e) defendants’ ’

cemeteries have unreasonable and illegal regulations mili”

3la

pee xe

tating against the sale of-plaintiff’s markers; (f) each of

the defendant cemeteries refuses to:allow anyone to install

markers in its cemetery except itself; and (g) that the

char@}s of each of the defendants for installation make it

impossible for the plaintiffto compete with the saie of

markers owned by the defendants’ cemeteries, themeely es.

~ Also, the plaintiff charge>

have participated in conspiracy reetings with the defend-

ant cemeteries; that the defendants, Matthews, have pro- -

vided assistance to the conspiracy practices of the

cemeteries; that the defendants, Matthews, have prepared

and distributed a copy‘of rules and regulations containing

restrictive material concerning sale of markers, and that,

there are*no grave markers installed in any of the defend-

ants’ cemeteries, other than those’ of Matthews.

_ To: the complaint .alt of the defendants have filed

‘ (1) Motions to Dismiss for lack of jurisdiction’ in that

there is no substantial impairment of Interstate Commerce

and in the alternative, (2) Motions for Summary Judg-

‘ment based upon exhaustive discovery production of docu-

ments, afidavits and interrogatories. ~ |

. In this case the “flow” or “current” of the markers in in-

terstate commerce to the point of installation at the grave

. site is much more discernible than the vaults-in Lawson v.

Woodmere, etc., 4th Cir. 217 F (2d) 148 (1954). There

the vaults’ were purchased and stored. on the cemetery .

' property and resold from stock on hand to a local pur- .

chaser for local use. Judge Dobie was inclined, in Lawson,

‘to believe that the “flow” of interstate commerce had

ceased. Here, however, the bronze markers must be

32a

at the etiitenin. Sessions. .

bend

sale as the proper inscriptions of name, daté of death,

etc., aré added to each tablet. Under some arrangements,

the Matthews Company agreés.to a continuing obligation

to accept the bronze markers back. at a later date to fill -

in the information as. to date of death of a surviving,

spouse; or, in the case’of a “pre- need” sale, to accept the.

‘ tablets back for proper inscription when bought a the

deceased before his death.

The chain of events from the sale of a tablet manufac- °

tured in Pennsylvania, to a local cemetery, and’ resold by

the cemetery to a‘ local user, but which resale requires

assistance of the Pennsylvania manufacturer ,in each indi-

vidual sale as to applicable lette‘ing, and with obligations

-on the out of state manufacturer to receive the tablet back

later from the ‘buyer; through the cemetery, for further |

inscription and handling , is much more perceptibly in an

interstate stream than the vaults in Lawson: While the

‘ views expressed are unnecessary in light of the ruling here-

, inafter-made on defendants” motions for, summary judg-

ment, if cAMMed upori to do so, the Court would overrule the

Motions to Dismiss for lack of jurisdiction.

But the Motions for Summary Judgment present a

different matter entirely. Conceding the necessary inter-

‘state commerce involvement to warrant jurisdiction it

does not appear that a trial could avail the . plaintiff.

a |

The’ plaintiff corporation‘s principal officer, Mr. C. C.

‘ Gregory, has testified exhaustively under appropriate depo-

sitions and has been ordered to produce all other evidence

tending to-prove’ conspiracy. In answer to specific ques-

tions he has admitted that he has no letters, agreements,

: 33a

SS e——————EEEe

correspondence, or any other testimonials to a conspiracy.

among the several defendants that he has not produced.

The ev canal he has. offered, does not show conspiracy.

Plaintiff's allegations that Matthews would sell only to

calamities is hegated by its own admission that’ it pur-

chased from Matthews as late as 1965 and terminated such

- purchases only.because it did not like the Matthews product

and because Matthews was aie a defendant in this suit.

Plaintiff’ Ss’ “allegation that the “ defendant cemeteries

bought only from Matthews was founded apparently on

, an inspection by the plaintiff's President of these cemeteries

which indicated the installation’ of ‘many of Matthews -

markers. He admitted, however, that he saw others and

thad had his company’s markers installed therein on occa-"" :

sion. Its:was further shown that one defendant . cemetery

had no Matthews markers at.all, that some had as many .

as fifty percent (50%) of a different brand; and that a

composite reading of all of the installations in all. of, the

‘cemeteries showed at least thirty percent Soil ae of a

different manufacturer.

Plaintiff's allegaton that it. is not allowed to install

markers in the defendant cemeteries is admitted by the de- _

' fendants. Each reserves to itself the right to install all

markers, regardless of from whom purchased. In view of:

the continuing obligation of perpetual care imposed upon

the cemeteries, in its contracts with lot owners, in the light

of the duty to preserve the cemetery property, all as pro-

vided in the cemetery sales agreements made plain to pur-

chasers, such rules and regulations cannot be°termed -un-

reasonable, This applies as well to rules setting up specific

alloy content as to bronze markers offered for installation

and certification thereof.

34a,

The allegation that there is . cons piracy te be uncov wered

in.the fact that. the charges are made by the cemetcries

for installation of markers, whether such charges be ¢on-'

scionable. for unconscionable i is not only not borne out but is

_ deniédsin'the plaintiff’s own proffered exhibits of the dif-

_ fetent cemetery gwrice scales. These show on,their face a

wide divergence of prices which would completely negative -

any, systematic. scheming or conscious parallelism. Plaintiff

agreed that Matthews did-not prescribe any charges. —

The plaintiff knows of no meetings between the parties ;

the plaintiff argues that the book “Modern Cemeteries,—

Recommendations for their Attorneys” prepared and, dis-

. tributed by Jas. H. Matthews ‘& Co, of Pennsylvania in -

the interest of management and executives of the Modern —

Cemetery Industry, admittedly containing many sugges-

tions picked up and inculcated into some of.the defendant

_so—the booklet itself, an Exhibit, could only be described as °

a form book. It specifically points out on page 5, that it.

contains suggested standards of fair and reasonable regu-_

lations which the cemetery would be advised to adopt but °

says that “. . . Jas. H. ‘Matthews & Co. is not permitted

to make recommendations and suggests that the reader

- consult his own attorney.”

The plaintiff has been sini under proper appropri-

ate motions, to produce his case. Hé has said in depositions

that he has no evidence other than that proffered. Clearly,

the evidence fails to state a case under the Sherman Act.

To put these parties to-trial runs full’ face into the

intent and purpose of Rule 56 of the Federal Rules of

Civil Procedure. There not only is no genuine issue of

wie

CORNEA POT Fi .

Le ee ee

material tank of conspiracy, there simply i is no evidence of

_ ‘conspiracy at all and the: plaintiff has said he could pro-

duce nothing more. |. , - bs ~\,

Under the circumstances, the Motion for Summary

~ Judgment filed by each of ‘the defendants will be stistained

- and will be entered upon receipt of a proper Order prepared

_ by attorneys for the defendants and endorsed by all counsel.

; JouHN A. MacKENnzIE

each. : ae | a United States District Judge

Norfolk, Virginia ack ae ae ae

October 3, 1967 ale |

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36a

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