Petition — Save Our Cemeteries, Inc. v. Archdiocese of New Orleans, Inc.

Supreme Court brief1978

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

871835

SAVE OUR CEMETERIES, INC.,

PETITIONERS

VERSUS

THE ARCHDIOCESE OF NEW ORLEANS,

RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

e*eeae

LAW OFFICES OF LOUIS R. KOERNER, JR.

A Professional Law Corporation

Louis R. Koerner, Jr.

730 Camp Street

New Orleans, La. 70130

(504) 581-9569

TABLE OF CONTENTS

TABLE OF CONTENTS i

TABLE OF AUTHORITIES iv

PETITION FOR WRIT OF CERTIORARI 1

j OPINION BELOW 3

JURISDICTION 3

QUESTION PRESENTED 4

STATUTORY PROVISIONS INVOLVED 4

STATEMENT OF THE CASE 9

REASONS FOR GRANTING THE WRIT 18

I. A conflict exists between the

United States Courts of Appeal

for the District of Columbia,

Second, Third and Ninth Circuit

and the Fifth Circu as to

whether, in complex antitrust

cases, full discovery shall be

allowed prior to a considera-

tion of a Motion for Summary

Judgment. 18

II. A conflict exists between the

United States Supreme “Court and

the United States Court of Ap-

peals for the Fifth Circuit as

to whether dismissals should be

granted in complex antitrust

cases prior to giving plaintiff

full opportunity for discovery -

III.A conflict exists between the

United States Courts of 4ppeal

-j-

for the Second, Seventh, and

Tenth Circuits and the Fifth

Circuit as to the requisite

discovery to which plaintiffs

in a Civil Rights case are en-

titled before summary judgment

may be granted.

Iv. A conflict exists between the

United States Supreme Court and

the United States Court of Ap-

peals for the Fifth Circuit as

to the burden of proof which

mist be met by the party moving

for summary judgment before

such motion is granted in Civil

Rights Cases and other types of

cases.

A conflict exists between the

United States Courts of Appeal

for the Sixth and Eighth Cir-

cuits and Fifth Circuit as to

whether amendment of the com

plaint shall be allowed before

summary judgment is granted.

VI. A conflict exists between the

United States Supreme Court and

the United States Court of Ap-

peals for the Fifth Circuit as

to whether amendments of the

complaint should be allowed

before a summary judgment is

granted.

VII.The decision of the Court below

is contrary to the long-estab-

lished policy and jwrisprudence

that dismissal and summary

judgment cannot be justified by

a mere six week delay.

af be

CONCLUSION 45

CERTIFICATE OF SERVICE 46

AP PENDIX 47

(Judgment and Qpinion of the Fifth

Circuit Court of Appeals)

-iii-

TABLE OF AUTHORITIES

Adickes v. S. H. Kress & Co.

" " . . 1598

(1970) 30, 33

Anderson v. American Automobile Association

454 F.2d 1240 (9th Cir. 197 2) 22

Baldwin v. Morgan

251 F.2d 70 (Sth Cir. 1958) 32

Beeck v. Aquas lide N° Dive Corp.

562 F.2d 537 (8th Cir. 197 39

Bendix Aviation Corp. v. Glass

176 F. Supp. 374 (E. D. Pa. 1959) 43

Bogosian v. Gulf Oil Corp.

561 F.2d 434 (34 Cir. 1978) 20

Bresler & Reiner, Inc. v. Holiday Inns, Inc.

73 F.R.D. 684 (E.D. Pa. 1977) 21

Cameron v. Brooks

473 F.2d 608 (6th Cir. 1973) 36

Canadian American Oil Company v. Union Oil

Corp. of California

1978-1 Trade Cases 61,910,

F.2d (9th Cir. 1978) 22

Costlow v. United States

° r r. 1977) 21

Durham v. Flordia East Coast Railway Co.

. t ir. ) 43

otherm Corp. v. Turbo Machine Co.

392 F.2d bie (3rd. cir. 1968) 42

Egelston v. State University College at

Geneseo

-iv-

if ee ee ee

535 F.2d 752 (2d Cir. 1976) 30

Foman v. Davis

371 U.S. 178, 83 S. Ct. 227,

9 L.Ed 2d 222 (1962) 40

Frey Ready-Mixed Concrete, Inc v.

Pine Hill Concrete Mix Corp.

554 F.20 551 (20 Cir. 1977) 19

Gayda v. New Amsterdam Casualty Co.

415 F.2a 304 (3rd Cir. 136) 43

Gill v. Stowlow

240 F.2d 609 (2d Cir. 1957) 43

— Gray v. Greyhound Lines, East

545 oa 169 (D.C. Cir. 1976) 22

Griffin v. Breckenridge

~ 403 U.S. 88, 91 S. Ct. 1790,

29 L.Ed. 2d 338 (1971) 35, 36

Heart of Atlanta Motel, Inc. v. United States

379 U.S. 241, 85 S. Ct. 248,

13 L.Ed. 2d 258 (1968) 23

Hickman v. Taylor

329 U.S. i355, 67 S. Ct. 395

(1974) 27

Honesee v. Grier

- Supp. 1358 (M. D. Pa. 1974) 33

Hospital Building Co. v. Trustees

of Rex Hospital

425 U.S. 738 (1976) 25

Illinois State Employees Union v. Lewis

473 F.2d 561 (7th Cir. 1972) 29

Investment Properties International, Ltd. v.

IOS LTD

459 F.2d 705 (2d Cir. 1972)

Jones v. Alfred H. Meyer Co.

392 U.S. 409, 88 S. Ct. 2186 (1968) 37

Lavin v. Illinois High School Association

527 F.2d 58 (7th Cir. 1975)

Lima y. Bank of America National Trust &

Savings Ass'n.

545 F.2d 597 (9th Cir. 1977)

Lynch v. Household Finance Corporation

405 U.S. 538, 92S. Ct. 1113,

31 L.Ed. 2d 424 (1972) 33

Mazaleski v. Treusdell

. eC. Cir. 1977) 22

McDowall v. Orr Felt & Blanket Co.

1460 F. t. 38

McIndoo v. Burnett

494 F.2d 1311 (8th Cir. 1974) 39

Moore v. Jas. H. Matthews & Co.

. t r. ) 22

National Hockey League v. Metropolitan

Hockey Club

__ U.S. _, 96 S. Ct. 2778 (1976) 44

Norfolk Monument Co., Inc. v. Woodlawn

Memorial Gardens, Inc.

394 U.S. 700 (1969) 26, 26

Oil, Chemical and Atomic Workers Union v.

Delta Refining Co.

277 F.2d F54 (6th Cir. 1960)

Phillips v. Trello

505 F.2d 1000 (3rd Cir. 1974)

~vi-

_ Pond v. Braniff Alrwayee Inc.

453 F. (5th Cir. 1972) 43

Rich v. Martin Marietta Corp.

522 F.20 333 (10th Cir. 1975) 29

Richman v. General Motors Corp.

437 F.2d 196 (ist Cir. 1971) 43

Schlangenhauf v. Holder

379 U.S. 104, 85 S. Ct. 234 (1964) 27

Societe International Pour Participation

Industrielles, et. Commercials v. Rogers

357 U.S. 197, 785. Ct. 1087,

2 L.Ed. 2d 1955 (1958) 44

Tankersley v. Albright

514 F.2d 905 (/th Cir. 1972) 29

Umdenstock v. American Mortgage and

Investment Co. of Oklahoma City

495 F.2d 589 (10th Cir. 1974) 28

United States v. Inter-American Shipping Corp.

455 F. 2d 938 (5th Cir. 1972) 42

Village Harbor, Inc. v. United States

559 F.2d 247 (5th Cir. 1977) 41, 42

Ward v. United States

471 F.20 607 (3rd Cir. 1973) 21

Weisman v. LeLandais

532 F.2d 308 (2d Cir. 1976) 29

Willburn v. Pepsi Cola Bottling Co.

492 F.2d 1288 (8th Cir. 1974) 39

STATUTES

15 U.S.C. Sec. 1 19

~ii-

;

15 U.S.C. Sec. 15 4,9

15 U.S.C. Sec. 26 5, 9

16 U.S.C. Sec. 461 5

28 U.S.C. Sec. 1254(1) 4

28 U.S.C. Sec. 1331 9

28 U.S.C. Sec. 1337 9

28 U.S.C. Sec. 1343 9

28 U.S.C. Sec. 2101 4

28 U.S.C. Rule 1 3

28 U.S.C. Rule 12 41, 43, 44

28 U.S.C. Rule 15(a) 40

28 U.S.C. Rule 37 41, 44

28 U.S.C. Rule 41 41, 42, 44

28 U.S.C. Rule 56(f) 20

42 U.S.C. Sec. 1981 6, 37

42 U.S.C. Sec. 1982 6, 36, 37

42 U.S.C. Sec. 1983 36, 31, 33, 34

42 U.S.C. Sec. 1985(3) 7, 34, 35, 36, 37

42 U.S.C. Sec. 1988 9

42 U.S.C. Sec. 4331(b) 8

Chapter 13, Ordinances of the City of

New Orleans, Art. 1, Section 13-10 10

~iii-

a ee

OTHER AUTHORITIES

3 Moore's Federal Practice (1974)

15.08[2] 38

4 Moore's Federal Practice

Sec. 26.25[6] (1974) 18

6 Moore's Federal Practice Part 1 (1974)

Sections 56.11[3] & 56.11[4] 45

6 Moore's Federal Practice Part 2 (1974)

Sections 56.15[3] & 56.15[4] 45

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

<a ela ee Rae

"They bury their dead in vaults,

above the ground. These vaults have

a resemblance to houses - sometimes

to temples; are built of marble, gen-

erally; are architecturally graceful

and shapely; they face the walks and

driveways of the cemetary; and when

one moves through the midst of a

thousand or so of them, and sees

their white roofs and gables stretch-

ing into the distance on every hand,

the phrase ‘city of the dead' has all

at once a meaning to him."

Mark Twain, Life on the Mississippi

“After 200 years of building a

city and a country, empty words rise

as homage to history's statesmen,

scholars and martyrs, while their

bones lay uncovered by vandals, and

mixed with debris in slums.”

(Excerpt from Exhibit R-2; newspaper

article by Mrs. Joyce Davis Robinson,

reporter for the New Orleans Times

Picayune, November 1, 1975, Section

1, p. 10)

The wall burial vaults of St. Louis Ne. 2

Cemetery were constructed in 1824 to serve as

inexpensive burial places for the poorer black

and white population of New Orleans. Through

about 1935, the vaults were sold for $50.00

each. Owership of the vaults has been handed

down through families, so that today residents

of many states own the sites and have the

ajeq

Bo) neal hp reins

right to use these vaults.

However, the future of this unique and ir-

replacable historic landmark is threatened.

Should Your Honors deny this petition, the

vaults may well be destroyed.

The controversy presented here involves

the owers of the wall vaults and the Arch-

diocese of New Orleans. The owners assert

their right, as the true owers of the vault

space, to have the vaults repaired. Indeed,

money is being raised for that purpose. How-

ever, the Archdiocese of New Orleans and Acme

Marble and Granite Company see great potential

profit in tearing dow the vaults, forcing the

owmers to rebury their ancestors elsewhere,

and constructing a new mausoleum on the site.

The details of this arrangement are outlined

belo.

The Archdiocese ows all of the Catholic

cemeteries in New Orleans. The right of bur-

ial in the vault space, a property and/or con-

tractual right, is vested in the vault owers.

The Archdiocese has consistently refused ei-

ther to repair the vaults or to permit others

to do so. In addition, the Archdiocese has

taken certain steps, detailed below, which re-

sulted in first a closure order and then in a

demolition order being issued by the City of

New Orleans.

This case focuses upon the commitment of

' the federal courts to preserve historic sites,

according to a policy twice declared by Con-

gress, and to afford due process of law to all

races and classes. ‘This application seeks to

prevent destruction of a landmark unique to

New Orleans and unique in America. ‘This ap-

plication seeks an opportunity for Petitioners

to be heard and to apply Rule 1 of the Federal

Rules of Civil Procedure which declares the

principle: "They shall be construed to secure

the just, speedy, and inexpensive determina-

tion of every action.”

Petitioners Gilbert L. Maury and Save our

Cemeteries, Inc., respectfully pray that a

writ of certiorari issue to review the United

States Court of Appeals for the Fifth Cirqit

entered in this proceeding on February 28,

1978, and that the decision below be reversed.

Opinion Below

The judgment of the Court of Appeals was

rendered with a written opinion on February

28, 1978. Rehearing and Rehearing En Banc

were denied on April 17, 1978. The written

opinion of the Court of Appeals for the Fifth

Circuit is attached in the appendix hereto.

Jurisdiction

The judgment of the Court of Appeals for

the Fifth Circuit was entered on February 28,

1978. A timely petition for rehearing and

| rehearing en banc was denied on April 17,

1978. This Court's jurisdiction is invoked

under 28 U.S.C. Section 1254 (1) and 28 U.S.C.

Section 2101.

Questions Presented

1. Whether the District Court erred in fail-

ing to allow time for discovery before summar-

ily dismissing plaintiff's claim.

2. Whether the District Court erred in fail-

ing to grant leave to amend before summarily

disnissing plaintiff's claim.

3. Whether the District Court erred in fail-

ing to recognize jurisdiction predicated upon

the Sherman Act.

4. Whether the District Court erred in fail-

ing to recognize jurisdiction predicated upon

the Civil Rights Act.

Regulations and Statutory Provisions Involved

15 U.S.C., Sec. 15. Suits by persons injured;

amount of recovery

Any person who shall be injured in

his business or property by reason of anything

forbidden in the antitrust laws may sue there-

for in any district court of the United States

in the district in which the defendant resides

or is found or has an agent, without respect

to the amount in controversy, and shall recov-

er threefold the damages by him sustained, and

the cost of suit, including a reasonable

attorney's fee.

15 U.S.C., Sec. 26 Injunctive relief for pri-

vate parties; exception

Any person, firm, corporation, or

association shall be entitled to sue for and

have injunctive relief, in any court of the

United States having jurisdiction over the

parties, against threatened loss or damage by

a violation of the antitrust laws, including

sections 13, 14, 18, and 19 of this title,

when and under the same conditions and princi-

ples as injunctive relief against threatened

conduct that will cause loss or damage is

granted by courts of equity, under the rules

governing such proceedings, and upon the exe-

cution of proper bond against damages for an

injunction improvidently granted and a showing

that the danger of irreparable loss or damage

is immediate, a preliminary injunction may

issue. .. .-

16 U.S.C. Sec. 461 Declaration of national

policy

It is declared that it is a national

policy to preserve for public use historic

sites, buildings, and objects of national

significance for the inspiration and benefit

= =

of the people of the United States.

Aug. 21, 1935, c. 593, Sec. 1, 49 Stat.

666.

42 U.S.C. Sec. 1981 Equal rights under the

law

All persons within the jurisdiction

of the United States shall have the same right

in every State and Territory to make and en-

force contracts, to sue, be parties, give

evidence, and to the full and equal benefit of

all laws and proceedings for the security of

persons and property as is enjoyed by white

citizens, and shall be subject to like punish-

ment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

42 U.S.C. Sec. 1982 Property Rights of citi-

zens

All citizens of the United States

shall have the same right, in every State and

Territory, as is enjoyed by white citizens

thereof to inherit, purchase, lease, sell,

hold, and convey real and personal property.

42 U.S.C. Sec. 1983 Civil action for depriva-

tion of rights

Every person who, under color of any

statute, ordinance, regulation, custom, or

iii,

_ usage, of any State or Territory, subjects, or

causes to be subjected, any citizen of the

United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immmities secured by

the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for re-

dress.

42 U.S.C. Sec. 1985(3) Depriving persons of

rights or privileges

(3) If two or more persons in any

State or Territory conspire or go in disguise

on the highway or on the premises of another,

for the purpose of depriving, either directly

or indirectly, any person or class of persons

of the equal protection of the laws, or of

equal privileges and immunities under the

laws; or for the purpose of preventing or hin-

dering the constituted authorities of any

State or Territory from giving or securing to

all persons within such State or Territory

from giving or securing to all persons within

such State or Territory the equal protection

of the laws; or if two or more persons con-

spire to prevent by force, intimidation, or

threat, any citizen who is lawfully entitled

to vote, from giving his support or advocacy

aFa

in a legal manner, toward or in favor of the

' election of any lawfully qualified person as

an elector for President or Vice President, or

as a Member of Congress of the United States;

or to injure any citizen in person or property

on account of such support or advocacy; in any

case of conspiracy set forth in this section,

if one or more persons engaged therein do, or

cause to be done, any act in furtherance of

the object of such conspiracy, whereby another

is injured in his person or property, or de-

prived of having and exercising any right or

privilege of a citizen of the thited States,

the party so injured or deprived may have an

action for the recovery of damages, occasioned

by such injury or deprivation, against any one

Or more of the conspirators.

42 U.S.C. Sec. 4331 Congressional declaration

of national environmental policy

(b) In order to carry out the policy set

forth in this chapter, it is the continuing

responsibility of the Federai Government to

use all practicable means, consistent with

other essential considerations of national

policy, to improve and coordinate Federal

plans, functions, programs, and resources to

the end that the Nation may--

(1) fulfill the responsibilities of

each generation as trustee of the environment

for succeeding generations;

(2) assure for all Americans safe,

healthful, productive, and esthetically and

culturally pleasing surroundings;

(4) preserve important historic, cul-

tural, and natural aspects of our national

heritage, and maintain, wherever possible, an

environment which supports diversity and

variety of individual choice;

Statement of the Case

Petitioners are Mr. Gilbert L. Maury,

individually and on behalf of all others

similarly situated, to wit: owners of the

wall vaults of St. Louis Cemetery No. 2, and

Save Our Cemeteries, Inc., a non-profit organ-

ization formed for the purpose of preserving

for future generations the 155-year old ceme-

tery, now recognized on the National Register

of Historic Sites, as well as other of the

historic cemeteries of New Orleans. Petition-

ers brought the action under the provisions of

28 U.S.C. Secs. 1331, 1337, and 1343, 15

U.S.C. Secs. 15 and 26, as well as 42 U.S.C.

Sec. 1988.

Over the course of several years, Respon-

dent, Archdiocesan Cemeteries of New Orleans,

has followed a consistent scheme aimed at the

—o

destruction of the wall vaults of St. Louis

Cemetery No. 2. This is because under Chapter

13, Ordinances of the City of New Orleans,

Art. 1, Sec. 13-10, the duty to maintain this

cemetery rests on the Archdiocese. However,

since at least March of 1974, the respondent

and Acme Marble and Granite Co., Inc., have

been conspiring to demolish the wall vaults

(Exhibits Rome A and Wegmann H), and sell the

owners new burial property. Pursuant to this

plan, the owers were mailed a form letter ad-

vising them that 1) if they purchased a new

burial site in an Archdiocesan cemetery,

reburial would be free, or 2) they could

transfer their ancestor's remains to another

cemetery at an undisclosed fee, or 3) have the

remains reintered in a common grave without

individual monuments (Exhibit M-6 and P-3).

Also, representatives from Respondent and/or

Acme tried pressuring owners into buying new

tombs. Monies collected in this fashion went

to Acme (Exhibit R-1). No compensation was

offered for the taking of the wall vault

property.

Other steps taken included refusing to

repair (statement of Mr. Frank Rome in Dec.4,

1974 newspaper article, Exhibits P-3 and

Wegmann M & N.) and preventing others from

repairing the vaults (Exhibits C-2, TRO Hear-

xy=

ing pp 30 and 68-71), obtaining an order in

late 1974 from the City of New Orleans pre-

venting future burials (Exhibit R-1), removing

guards at the cemetery so that the area is

unsafe for visitation by owers, mourners, and

tourists, and so that the vaults are subject

to vandalism (see Exhibit R-2).

At the same time, the respondents were

misleading the owers, and the general public,

into thinking that it planned a restoration

program and that no demolition was planned

(Exhibits P-1, Wegmann I, J, K, and L).

The Archdiocese has contracted with Acme

Marble and Granite Co., Inc., as their exclu-

sive agent for sale of Catholic burial prop-

erty in the greater New Orleans area. As men-

tioned above, Acme representatives contacted

yault owners in connection with buying new

tombs and accepted all monies paid for new

tombs. The prices charged for such services

by Acme are higher than prices charged in

other cemeteries. Similarly, the price

charged by the Archdiocese for repairs for

tombs (as opposed to wall vaults) in St. Louis

No. 2 was two to three times higher than that

charged by private contractors.

In addition, Your Honors should note that

no marble is quarried in Louisiana. Apparent-

ly Acme's quarries are in Mississippi and

ah ie

elsewhere. ‘Thus, interstate commerce is nec-

' essarily involved in the transport of marble.

These facts bear most heavily against dis-

missal and/or summary judgment of petitioners’

antitrust claims and denial of petitioners’

leave to amend in the courts below, and estab-

lish jurisdiction over petitioners' civil

rights claims.

In the late summer of 1976, the Archdio-

cese took the especially serious step of is-

suing a complaint, through its attorneys, to

the New Orleans Department of Safety and Per-

mits (Exhibit Robin l). This department,

relying on Respondents' representations that

the wall vaults were in imminent danger of

collapsing, issued an order to repair or

demolish the walls by September 3, 1976 (Exhi-

bit RPobin 3). To prevent the destruction of

the wall vaults, Petitioners filed suit as a

class action on August 30, 1976.

Experts who testified in behalf of Peti-

tioners at the TRO Hearing on September 2,

1976 disputed the finding that the walls were

in danger of collapse, as well as Respondents’

representations to vault owners that the walls

and vaults could not be repaired. Dean Will-

iam Turner of the Tulane School of Architec-

ture testified as to the inherent strength of

the massive walls and that they could be sta-

120

Cin tena oat

bilized and repaired (TRO Hearing pp 19-20).

Mr. E. Sorrell Lanier, a civil structural

engineer, testified that based on his inspec-

tions of the wall vaults, he had concluded

that "the structures are sound" and that "with

maintenance and a little bit of work" all the

vaults could be renovated and brought back in-

to use (TRO Hearing pp 25, 28, 29-31).

Although the case was assigned to the Hon.

Judge Fred J. Cassibry, the Temporary Re-

straining Order Hearing was held before the

Hon. Judge R. Blake West on September 2, 1976.

At that hearing, significant evidence, de-

scribed above, outlining Respondent's conduct

directed to destruction of vaults without com-

pensating the owers, and the connection with

Acme was presented to the court.

In addition, it was discovered that the

City of New Orleans had issued its demolition

or repair order based on the representations

of the Archdiocese and had not carried out a

detailed inspection, as Mr. Lanier had, in

order to determine whether the structure was

sound. Mr. Frank Robin, Chief Inspector of

the City of New Orleans Department of Safety

and Permits testified as to the procedures

followed in reference to Fespondents' com-

plaint. His testimony shows that the depart-

ment followed standard procedures. Based on

afte

this evidence, Petitioners voluntarily dis-

missed the City of New Orleans as a defendant

without prejudice.

The manipulation of the situation by Re-

spondents, outlined above, and the statement

by Mr. William Barlow, Chief of Institutional

and Premises Sanitation Division of the Louis-

iana Department of Health to the Times-

Picayune that at the request of the Archdio-

cese, the Health Department had not inspected

St. Louis Cemeteries Nos. 1 and 3 further sug-

gests calculated use and control of state

agencies to deprive Petitioner's class of

their property and/or contractual rights.

While such evidence may or may not be suf-

ficient to prove Petitioners’ allegations at

trial, such evidence is sufficient to have

granted Petitioners' Motion for Leave to Amend

and to deny or at least postpone summary judg-

ment on Petitioners' civil rights and other

claims. It is no argument that Petitioner had

not yet begun discovery at the time of the

hearing before Judge Cassibry six weeks later

when, as here, copies of significant testimony

and exhibits had been requested but were still

unavailable from the Court, despite the dili-

gent efforts of Petitioners to obtain the same

and despite Petitioners' Motions to Defer or

Postpone until said transcript of testimony

-14-

v df emtae vig

24 mite BG @ PCE ec et

and exhibits were available.

| The Court below would have had Petitioners

blindly swear to affidavits to contradict

those of Respondents, blindly amend their

pleadings, and propound interrogatories in a

broadside fashion regardless of the facts in

the then unavailable record. The fact that

this pertinent evidence was unavailable to the

parties and the Court at the October 20, 1976

hearing and the fact that Judge West and not

Judge Cassibry presided at the TRO Hearing

should not be held against Petitioners.

Respondents have within their control and

knowledge the method by which they did or

would have utilized, to their benefit, the in-

formation gained under color of law. Peti-

tioners alleged that they have such informa-

tion, and that such information was utilized

to further the conspiracy.

The information and details of the inter-

state activities coming within the requisites

of the Sherman Act and the efforts used to

obtain closure and demolition of wall vaults

were exclusively within the control and pos-

session of the defendants. The facts and

existence of the "in commerce” or "affecting

commerce" activities of Respondents with

regard to interstate sales and as to conver-

sations and contracts by Respondents and their

= {=

ne oh ANON Saat Qh

counsel with the City of New Orleans make the

requested information inaccessible except

through the discovery devices provided by the

Federal Rules. Prudent attorneys and good

faith litigants do not ab initio allege overt

facts concerning effectuation of conspiracies

when there was no way in which such informa-

tion could be garnered except from the co-

conspirators themselves and any evidence in

the record is unavailable for use.

The wall vault owed by petitioner, Mr.

Gilbert L. Maury, is in sound condition and is

capable of safe and lawful use for burial. Mr.

Maury has requested that he himself should be

permitted to utilize his wall vault upon his

demise, but has been told by the representa-

tives of the Archdiocesan PRespondents that

this is impossible under any circumstance

because the governmental authorities have

closed the vault to burials. In truth and in

fact, governmental authorities having super-

vision of St. Louis Cemetery No. 2 will permit

burials in the wall vaults.

Upon information and belief, including

newspaper articles and the activities of the

Respondents with regard to the foreclosure of

burials and the documents obtained from the

files of the Archdiocese at the Temporary Re-

straining Order Hearing, Petitioners alleged

-16-

that the Respondents were attempting to de-

prive the owners of their property and to dis-

criminate against such owers in favor of own-

ers of burial property in other Catholic

cemeteries, which, though in part in a similar

condition to St. Louis No. 2 has not been

threatened with foreclosure to future burials

or with actual demolition. Plaintiffs believe

that once proper discovery is allowed, the

necessary discriminatory animus of Respondents

will be revealed.

Petitioners' offer in oral argument in the

district court to amend were turned down.

Petitioners have in their possession addition-

al facts and can, by discovery, uncover addi-

tional facts which will demonstrate the de-

tails of the conspiracy and the method by

which the fruits thereof were utilized to

deprive wall vault owers of their property

rights and other civil rights.

The Archdiocese will realize substantial

economic benefit from the resale of the space

on which the old vaults rested, avoid the ex-

pense of repair and maintenance, and of course

Acme will be able to sell new tombs. ‘The ones

who will lose, if the demolition order is al-

lowed, are the vault owers who stand to be

deprived of their property without compensa-

tion and without due process of law, and the

a) Fo

« sy

public who will lose a unique historic land-

' mark should this writ be denied. For many

wall vault owers demolition and non-use means

burial in “Potter's Field."

Reasons For Granting The Writ

I. A conflict exists between the United

States Court of Appeals for the

District of Columbia, Second, Third

and Ninth Circuit and the Fifth Cir-

cuit as to whether, in complex anti-

trust cases, full discovery shall be

allowed prior to a consideration of

a Motion for Summary Judgement in

complex antitrust cases.

The Fifth Circuit affirmed the dismissal

of Petitioners' complaint prior to even cur-

sory discovery and after the denial of oppor-

tunity to amend to allege further facts under

circumstances in which the well pleaded-facts

were conceded by the Fifth Circuit to demon-

Strate causes of action under the federal

statutes upon which federal jurisdiction was

asserted. The discovery inquiries made at the

TRO hearing were directed to and sought mater-

ial and information that was either directly

related to the question raised by the pending

Motion for Summary Judgment or could easily

elicit or lead to admissible evidence on the

issues raised by the motion. (4 Moore's Fed-

eral Practice, Sec. 26.25[6] (1974) at p.

26-118-26-119). The Federal Rules and

=);

applicable case law dictate that such motions

should not even be considered until discovery

had been completed in its entirety.

In the instant case, the District Court

granted the motion to dismiss when the tran-

script of the TRO Hearing and the exhibits

filed with the Court were unavailable to that

Court to aid in its decision. The material

which had been discovered could not even be

utilized.

The Courts of Appeals have been uniform in

permitting full discovery with regard to such

crucial matters as the interstate nature of

the trade and commerce prior to a considera-

tion of a motion for summary judgment.

In Frey Ready-Mixed Concrete, Inc. Vv. Pine

Hill Concrete Mix Corp., 554 F.2d 551 (2d Cir.

1977). Suit was brought under the Sherman and

Clayton Antitrust Acts, 15 U.S.C. Sec. 1 et.

seq. and 12 et. seq. The Court stated that

appellants had filed their request for docu-

ments followed by objections to such requests

by the appellees, and before the Court could

act on the objections appellees moved for

dismissal and summary judgment. Appellants

moved that any judgment on appellee's motion

to dismiss be delayed until after discovery

was completed. The Court denied appellants’

motion and dismissed the action or granted

-19—

”

“

‘

summary judgment.

The court then discussed the allegations

of the complaint and the requisites for con-

sideration of a motion for summary judgment

and concluded

". . .that a motion for summary judgment

should not be entertained before discov-

ery has been completed in antitrust cases

in which the relevant facts are disputed

and intent to injure is a issue. See

Hospital Building Co. v. Trustees of Rex

Hospital [1976-1 Trade Cases 60,885], 425

U.S. 738,746 (1976) (‘in antitrust cases .

. dismissals prior to giving the plain-

tiff ample opportunity for discovery

should be granted very sparingly");

Broadcast Music, Inc. v. Columbia Broad-

casting System, Inc. 55 F.R.D. 292,

296-97 (S.D.N.Y. 1972);cf. AI, Inc. v.

United Airlines, Inc. 55 F.R.D., 292,

296-97 (S.D. N.Y. 1972); cf AIW, Inc. v.

United Airlines, Inc. 510 F. 2d 52, 55

(9th Cir. 1975).

In Bogosian v. Gulf Oil Corp., 561 F.2d

434 (3d Cir. 1978) plaintiffs moved for a

denial of the motions to dismiss under Rule

56(f), saying that they were unable properly

to respond to the motion without an oppor-

tunity to conduct discovery concerning the

"conspiracy" claim. The District Court

granted summary judgment for failure to state

a cause of action under Sherman Act 1. The

Third Circuit emphasized that the Rule 56(f)

motion indicated that the evidence which would

support plaintiff's theory of a combination or

-20-

conspiracy was, as it usually is, in the hands

of defendants. The Court held that summary

judgment should not be granted without afford-

ing plaintiffs an opportunity for discovery,

and that where facts are in possession of the

moving party, a continuance of a motion for

summary judgment for purposes of discovery

should be granted as a matter of course, cit-

ing Costlow v. United States, 552 F.2d 560 (3d

Cir. 1977).

In Costlow v. United States, 552 F. 2d

560 at 563-564 (3d Cir. 1977), citing Ward v.

United States, 471 F. 2d 667, 670-71 (3d Cir.

1973), the Third Circuit reversed the granting

of a motion for summary judgment by the dis-

trict court in language applicable to the

present case:

"But by acting on the motion for

summary judgment without argument, and

without reference to what might be devel-

oped in discovery, which was being dili-

gently pursued, the court erred.”

"([We] have said that where the facts

are in possession of the moving party a

continuance of a motion for summary judg-

ment for purposes of discovery should be

granted almost as a matter of course."

See also Bresler & Reiner, Inc. v. Holiday

Inns, Inc. 73 F.R.D. 684 (E.D. Pa. 1977)

{trial by affidavit is no substitute to trial

by jury in an antitrust action].

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In Moore v. Jas. H. Matthews & Co., 473 F.

94 328, (9th Cir. 1973), the Ninth Circuit

held that the plaintiff's assertion in an

antitrust action that the defendant, a private

cemetary, serviced severty-two percent of the

burials in the county and that the defendant

bronze monument makers produced sixty-five

percent of the markers made in the Un ited

States were adequate to raise a genuine issue

of fact and preclude the granting of summary

judgment.

See also Anderson v. American Automobile

Association 454 F.2d 1240 (9th Cir. 1972);

Lima v. Bank of America National Trust & Sav-

ings Ass'n., 549 F.2d 597 (9th Cir. 1977);

Canadian American Oil Company v. Union Cil

Corp. of California, 1978-1 Trade Cases 61,-

910, _F.2d ss (9th «Cir. 1978); Gray v-

Greyhound Lines, East 545 F.2d 169 (D.C. Cir.

1976) and Mazaleski v. Treusdell 562 F.2d 701

(D.C. Cir. 1977) as to inappropriateness prior

to discovery and on issues on intent.

The evidence in the present case consists

of the fact that Acme Marble and Granite is

the sole supplier of services for the catholic

cemeteries in this area and the exclusive

sales agent for the Archdiocese in its plan to

sell other catholic cemetary plots to the

owers of the St. Louis No. 2 wall vaults.

=23-

‘

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Accordingly, any of the owners, (including

’ non-residents of Louisiana), who do not al-

ready own other burial space and who want to

avoid having the remains their loved ones

dumped into a common grave, must arrange the

purchase of a new plot through Acme Marble and

Granite. This, in turn, leads to the neces-

sity for new markers or tombs to be purchased

from Acme. The above considerations along

with the fact that Louisiana imports all

marble is prima facie evidence of an effect on

interstate commerce. These facts should not

be disregarded, as they were by the court

below, simply because petitioners’ motion for

leave to amend was denied.

Should the Court allow these wall vaults

to be destroyed the Archdiocese will be con-

doned in using tactics, as it is attempting

here, to destroy other historic sites which it

owns, i.e., other catholic cemeteries in this

city. Such action will have the overall ef-

fect of discouraging tourist trade, thereby

discouraging and affecting interstate com-

merce. Heart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d

258 (1968).

Tourists are not the only people who come

into this state to visit these cemeteries,

there are vault owners who live outside of

Louisiana who come to visit and maintain the

graves of their loved ones. Forcing these

owmers to relocate will no doubt result in

their relocating in their own state.

To affirm the decision of the Court below

will be to endorse abuse of the discovery

process. The decision below creates a trap.

Although relevant evidence is discovered at a

hearing, the decision below dictates that a

party initiate a blunderbust approach to dis-

covery. To wait until that evidence is avail-

able for analysis to aid in directing discov-

ery toward pertinent issues is grounds for

Gisnissal or summary judgment.

Petitioners have been exceedingly diligent

in initiation of the litigation and in seeking

a prompt hearing date for the Temporary Re-

straining Order.

In that six weeks period, Petitioners took

reasonable action. They voluntarily dismissed

the City of New Orleans, as the TRO hearing

showed, that party gullible but not culpable.

They asked for a continuance until the tran-

script and exhibits were available. And they

tried, in vain, to obtain a copy of the tran-

script and exhibits.

Please see Investment Properties Inter-

national, LTD. v. IOS LTD, 459 F.2d 705 (2rd

Cir. 1972). [Vacating order limiting discovery

=240

ny 7

a ~ r, ’

Ss ete

on ‘jrisdictional issues where the jurisdic-

tional facts were still unknow].

II. A conflict exists between the United

States Supreme Court and the United

States Court of Appeals for the

Fifth Circuit as to whether dis-

missals shall be granted in complex

antitrust suits prior to giving

plaintiff full opportunity for

discovery.

This Court has several times made clear

that a rigorous standard is to be applied in

deciding to dismiss a suit before ample oppor-

tunity for discovery is afforded to plaintiff,

this is especially true when the case involves

complex antitrust matters.

In the recent case of Hospital Building

Co. v. Trustees of Rex Hospital, 425 U.S. 738,

746-747, (1976), the District Court dismissed

the plaintiff's amended complaint on the

pleadings, finding that the plaintiff had not

alleged a sufficient nexus between the alleged

violations of the Sherman Act and interstate

commerce.

In reversing, this Court stated:

"We have held that a complaint

should not be dismissed for failure to

State a claim unless it appears beyond

doubt that the plaintiff can prove no set

of facts in support of his claim which

would entitle him to relief. Conley v.

Gibson, 355 U.S. 41, 45-46 (1957) (foot-

note omitted). And in antitrust cases,

where the proof is largely in the hands

of the alleged conspirators, Poller v.

=26,<

a ca (ah Obst, NEBR patie cube lide

Columbia Broadcasting System Inc., 368

U.S. 464, 473 (1962), dismissals prior to

giving the plaintiff ample opportunity

for discovery should be granted very

sparingly. Applying this concededly

rigorous standard, we conclude that the

instant case is not one in which dis-

missal should have been granted."

In Norfolk Monument Co., Inc. v. Woodlawn

Memorial Gardens, Inc., 394 U.S. 700 (1969),

the Supreme Court, in a per curiam opinion,

reversed a lower court's summary judgment on

an antitrustt case. There, contrary to the

present case, extensive pretrial discovery had

been allowed, showing that the plaintiff had

not been allowed to install his bronze grave

markers in the cemeteries. A separate instal-

lation fee was charged for the installation of

the plaintiff's markers. As here, fees were

exorbitant when compared to the actual cost of

installation. A specific alloy content for

the bronze markers was demanded by the ceme-

tery, which was coincidentally the same as

that contained in the markers made by the

defendant. There were even attempts to dis-

suade low income owers from purchasing mark-

ers from the plaintiff.

Your Honors stated that no written evi-

dence of a conspiracy was necessary, and that

business behavior is admissable evidence from

which the fact finder could infer agreement.

-26-

While this Court expressed no opinion on the

! strength or weakness of petitioner's case, it

was held that the alleged conspiracy had not

been conclusively disproved and that material

issues of fact remained which could only be

resolved by a jury.

"As we have cautioned before ‘sum-

mary procedures should be used sparingly

in complex antitrust litigation where

motive and intent play leading roles, the

proof is largely in the hands of the

alleged conspirators, and hostile witnes-

ses thicken the plot' Poller v. Columbia

Broadcasting System, 368 U.S. 464, 473."

Sek. ne Peed SP etn tie

In Hickman v. Taylor, 329 U.S. 495, 507,

67 S.Ct. 395 (1947), the Supreme Court said

that the deposition discovery rules are to be

accorded broad and liberal treatment and that

mutual knowledge of all the relevant facts

gathered by both parties is essential to

proper litigation.

"The deposition discovery procedure

simply advances the stages at which the

disclosure can be compelled from the time

of trial to the period preceding it, thus

reducing the possibility of surprise."

As Your Honors stated in Schlangenhauf v.

Holder, 379 U.S. 104 at 114, 85 S. Ct. 234 (1964):

3 "We enter upon determination of this

2 construction with the basic premises

i ‘that the deposition-discovery rules are

: to be accorded a broad and liberal

4 treatment, ‘Hickman v. Taylor, supra, at

507 to effectuate their purpose that

‘civil trials in the federal courts no

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longer need be carried on the dark." Id.,

at 501

There was ample authority to have justified

the granting of the Motion to Continue made at the

hearing and the deferral of consideration of the

Motion for Summary Judgment until plaintiffs had

obtained discovery which applied directly on the

issue raised by the motion, so the District Court

and this Court could have ascertained what the

real facts are. Cf. Umdenstock v. American

Mortgage and Investment Co. of Oklahoma City, 495

F.2d 589 (10th Cir. 1974).

In fact situations such as the present involv-

ing antitrust issues the Court has consistently

stressed the need for discovery before summary

judgment is considered. Under the "conclusively

disproved" test of Norfolk Monument, supra, this

decision should be reversed. There was no evi-

dence before the Court to prove or disprove the

jurisdictional or conspiracy issues. In relying

on the affidavit of Monsignor Wigmann the Court

erred as there was evidence found at the TRO

Hearing which contradicted his statements and

thereby impugned his credibility. However, such

evidence as was in the record was unavailable to

the Dictrict Court at the time of its decision.

III. A conflict exists between the United

States Courts of Appeals of the

Tenth, Seventh and Second Circuits

and the Fifth Circuit as to the

=26~

= Nee tach: Dulhan a alias Be ible aa

requisite discovery to which plain-

tiffs in a Civil Rights case are

entitled before summary judgment may

be granted.

In Rich v. Martin Marietta Corporation, 522

F.2d 333 (10th Cir. 1975), the Court in reversing,

stated that the Trial Court should have allowed

full discovery of the facts as there was no other

means of ascertaining the merit in plaintiff's

It stated that: "To frustrate the

allegation.

search is a most unsatisfactory result in that it

fosters suspicion.” Id. at 343.

In Lavin v. Illinois High School Associa-

tion, 527 F.2d 58 (7th Cir. 1975), the Court

stated at page 61 that summary judgment should

be used cautiously and all procedural require-

ments [fair opportunity to conduct discovery]

a be given strict adherence when mot iva-

shoul

tion of the defendant is in issue. See also

Illinois State Employees Union v. Lewis, 473

F.2d 561, 565-66 (7th Cir. 1972) and Tankers-

ley v. Albright, 514 F.2d 965, 953 n- 8 (7th

Cir. 1972).

A complaint that the defendants had con-

spired with the New York police to arrest and

detain plaintiff in violation of plaintiff's

civil rights was dismissed on a Rule 12(b) (6)

motion. The Second Circuit Court of Apoeal,

in a per curiam opinion in Weisman Vv. LeLan-

dais, 532 F.2d 308 (2d Cir. 1976), reversed:

-29-

‘

;

“affording the complaints the

favorable conspectus to which they

are entitled, our review persuades

us that the District Court acted

prematurely in dismissing these ac-

tions and thus denying both plain-

tiffs the opportunity to establish

their claims under the Civil Rights

Act and the court's diversity juris-

diction."