Monument Builders v. American Cemetery Ass'n

• Decision Date: 26 February 1986
• Docket Number: Civ. A. No. 84-2469-S.
• Citation: 629 F. Supp. 1002
• Parties: MONUMENT BUILDERS OF GREATER KANSAS CITY, INC., Plaintiff, v. AMERICAN CEMETERY ASSOCIATION, et al., Defendants.
• Court: U.S. District Court — District of Kansas

629 F. Supp. 1002

MONUMENT BUILDERS OF GREATER KANSAS CITY, INC., Plaintiff, v. AMERICAN CEMETERY ASSOCIATION, et al., Defendants.

Civ. A. No. 84-2469-S.

United States District Court, D. Kansas.

February 26, 1986.

Ray Fechtel, Eugene, Or., Edward A. McConwell, Law Offices of Edward A. McConwell, Overland Park, Kan., for plaintiff.

Louis H. Plummer, Kansas City, Kan., for Lincoln Cemetery, Inc.

Michael D. Dick, McDonald, Dykes, Christlieb & Shields, Overland Park, Kan., for Shawnee Mission Memory Gardens.

Edward J. Chapman, Jr., Douglas Chapman & Waters, G. Waters, Leavenworth, Kan., Marvin G. Stottlemire, Chapman & Waters, Lansing, Kan., for Mount Muncie Cemetery.

Jeffrey S. Nelson, Shook, Hardy & Bacon, Overland Park, Kan., John C. Monica, Shook, Hardy & Bacon, Kansas City, Mo., Howard T. Brinton, John E. Frey, Robert L. Shuftan, Wildman, Harrold, Allen & Dixon, Chicago, Ill., David H. Marion, Wayne M. Thomas, Kohn, Savett, Marion & Graf, P.C., Philadelphia, Pa., for American Cemetery Ass'n; Robert M. Fells, American Cemetery Ass'n, Falls Church, Va., of counsel.

Marilyn G. Miller, Kansas City, Mo., Conrad Miller, Sr., Kansas City, Kan., for Maple Hill Cemetery Co. and Chapel Hill Memorial Gardens, Inc.

William E. Carr, Brown, Koralchick & Fingersh, Overland Park, Kan., for Temple B'Nai Jehudah.

Karen E. MacDonald, Thomas H. Bennett, Independence, Mo., Gerald L. Rushfelt, Rushfelt, Mueller, Druten & Moran, Overland Park, Kan., for Reorganized Church of Jesus Christ of Later Day Saints.

John C. Russell, Raytown, Mo., Ruben Jorge Krisztal, Krisztal & Bellen, Kansas City, Kan., for Blue Ridge Lawn Cemetery, Inc. and Highland Sales & Inv. Co., Inc.

Charles D. Kugler, Vasos, Kugler & Dickerson, Kansas City, Kan., Michael J. Gallagher, Rebecca S. Cort, Wassberg, Gallagher & Jones, Kansas City, Mo., for Memorial Heritage, Inc. and D.W. Newcomer's Sons.

Allen R. Slater, Dietrich, Davis, Dicus, Schmitt, Rowlands & Gorman, Olathe, Kan., Edward M. Dolson, Dietrich, Davis, Dicus, Schmitt, Rowlands & Gorman, Kansas City, Mo., George Long, Asst. Mun. Counselor, City of Olathe, Olathe, Kan., for City of Olathe, Kan.

Bernard J. Rhodes, Gage & Tucker, Kansas City, Mo., Stephen A. Murphy, Gage & Tucker, Overland Park, Kan., for Mount Washington Cemetery and Brooking Cemetery Assn.

R. James Stilley, Jr., Stilley & Fowler, Raytown, Mo., for Brooking Cemetery Assn.

John L. Vratil, Lathrop, Koontz, Righter, Clagett & Norquist, Overland Park, Kan., Edward W. Madeira, Jr., M. Duncan Grant, Carolyn L. Davis, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for Jas. H. Matthews & Co.

David L. Skidgel, John J. Jurcyk, Jr., Robert B. Van Cleave, McAnany, Van Cleave & Phillips, Kansas City, Kan., for Pleasant View Cemetery, Mount Calvary Cemetery and Catholic Cemeteries, Archdiocese of Kansas City, Kan.

Richard A. Erickson, Kansas City, Mo., for Memorial Park Cemetery and Sunset Memorial Gardens.

Robert M. Beachy, Van Osdol, Magruder, Erickson & Redmond, Kansas City, Mo., Jeffrey O. Ellis, Fallon, Holbrook & Ellis, Kansas City, Kan., for Sunset Memorial Gardens and Troost Ave. Cemetery Co.

William J. Mullins, Jr., Wagner, Leek & Mullins, Shawnee Mission, Kan., Julia F. Blakeslee, Rich, Granoff, Levy & Gee, Kansas City, Mo., for Temple B'Nai Jehudah, Memorial Park Cemetery Ass'n of Missouri and Memorial Park Cemetery.

David E. Everson, Jr., Matthew J. Verschelden, Stinson, Mag & Fizzell, Kansas City, Mo., Roger D. Stanton, Stinson, Mag & Fizzell, Overland Park, Kan., for Mount Moriah Cemetery, Inc.

Gloria M. Gusich, Felix G. Kancel, Kansas City, Kan., Thomas Sullivan, Edward L. Fitzgerald, Downey, Sullivan & Fitzgerald, Kansas City, Mo., for Catholic Cemeteries Ass'n of Kansas City-St. Joseph, Inc.

George R. Docking, Kansas City, Kan., for Highland Park Cemetery and Chapel Mausoleum, Inc. Norman E. Beal, Hillix, Brewer, Hoffhaus & Whittaker, Kansas City, Mo., for Chapel Hill Memorial Gardens, Inc.

Mark R. Singer, Romain, Burger & Singer, Overland Park, Kan., William G. Levi, Smith, Gill, Fisher & Butts, Kansas City, Mo., for Elmwood Cemetery.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on various defendants' motions to dismiss plaintiff's amended complaint for failure to state a claim upon which relief may be granted. Several defendants have also filed motions to dismiss for improper venue, lack of personal jurisdiction, and insufficiency of service of process. Additionally, motions have been filed by various defendants for sanctions against plaintiff pursuant to Rule 11, Federal Rules of Civil Procedure.

As stated in the court's memorandum and order dated June 28, 1985, plaintiff is a trade association of monument builders who filed a complaint alleging that defendants violated the antitrust laws by establishing a tying arrangement between the sale of cemetery lots and the sale and installation of graveside markers, by conspiring among themselves to tie these products, and by attempting to monopolize the sale of bronze and granite memorials. In its order of June 28, 1985, the court dismissed plaintiff's complaint for failure to state a claim upon which relief could be granted, but granted plaintiff leave to amend its complaint. Plaintiff did amend its complaint, and defendants now seek to dismiss plaintiff's amended complaint upon the same grounds.

The court has determined that oral argument would not be of material assistance in the determination of this matter. Rule 15(d), Rules of Practice of the United States District Court for the District of Kansas.

In considering a motion to dismiss, the factual allegations of the complaint must be taken as true and all reasonable inferences must be indulged in favor of the plaintiff. Mitchell v. King, 537 F.2d 385 (10th Cir.1976); Dewell v. Lawson, 489 F.2d 877 (10th Cir.1974). A complaint should not be dismissed unless it appears beyond a 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, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The question is not whether a plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

A. Defendants' Motions To Dismiss For Improper Venue, Lack of Personal Jurisdiction, and Insufficiency Of Service Of Process

Twelve defendants have filed motions to dismiss for improper venue, lack of in personam jurisdiction, and insufficiency of service of process. In disposing of such motions, the court will first address the issue of venue and in doing so will treat similarly situated defendants as a class.

Defendants Temple B'Nai Jehudah, doing business as Rosehill Cemetery, and the Brooking Cemetery Association request that plaintiff's claims be dismissed with prejudice due to improper venue. Defendants contend that § 4 of the Clayton Act (15 U.S.C. § 15) provides that "(b) any person who shall be injured in whose business or property by reason of anything forbidden in the antitrust laws may sue therefore in any district court of the United States in the district in which the defendant resides or is found to have an agent ...."

Both defendants contend and plaintiff concedes that Temple B' Nai Jehudah and Brooking Cemetery Association do not "reside" in Kansas. Therefore, the ultimate test is whether these defendants are engaged in the "practical, everyday business or commercial concept of doing or carrying on business `of any substantial character'" within the district. United States v. Scophony Corp., 333 U.S. 795, 807, 68 S.Ct. 855, 862, 92 L.Ed. 1091 (1948). Each of these two defendants contend, and support with affidavits, that they do not maintain offices or agents in the state, nor do they advertise or actively solicit business in Kansas. Defendants proffer conclusive evidence that they are not "transacting business" in the state of Kansas, and therefore Kansas is not the proper judicial district for plaintiff's action against them.

The court notes that the plaintiff does not even attempt to controvert defendants' affidavits or the facts stated therein. Rather, plaintiff suggests that venue should be based on plaintiff's allegation that all defendants, located both in Missouri and Kansas, have conspired together to violate antitrust laws. The court must disagree. It is clear that venue may not be founded solely on allegations that a defendant was a member of a conspiracy and that a portion of the conspiracy took place in the forum district. See Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148-49, 98 L.Ed. 106 (1953); Williams v. Canon, Inc., 432 F.Supp. 376, 382 (C.D.Cal.1977).

Plaintiff also proposes that § 4 of the Clayton Act supplements the provisions of 28 U.S.C. § 1391. Section 1391 provides that venue is properly brought in the judicial district where all defendants reside or where the claim arose. This argument does little to convince the court that venue is proper against these defendants. The court finds that plaintiff has not sufficiently alleged or proven facts which even infer that the violation of the antitrust laws by these two defendants occurred in Kansas. The court therefore finds that all causes of action against defendants Temple B'Nai Jehudah and the Brooking Cemetery Association should be dismissed with prejudice.

Defendants D.W. Newcomer's Sons; Catholic Cemeteries Association of Kansas City-St. Joseph, Inc.; Memorial Heritage, Inc.; Mount Washington Cemetery; Troost Avenue Corp.; Reorganized Church of Jesus Christ of Latter Day Saints; Elmwood Cemetery; Blue Ridge Lawn Cemetery, Inc.; Highland Sales and Inventory Co., Inc.; and Memorial Park Cemetery Association of Missouri, are all Missouri corporations who have filed similar motions to dismiss for improper venue. These defendants have all filed affidavits which conclusively...