Clark Memorials of Ala. Inc. v. Sci Ala. Funeral Servs. LLC, 2:13–cv–01356–LSC.

• Decision Date: 14 January 2014
• Docket Number: No. 2:13–cv–01356–LSC.,2:13–cv–01356–LSC.
• Citation: 991 F.Supp.2d 1151
• Parties: CLARK MEMORIALS OF ALABAMA INC., Plaintiff; v. SCI ALABAMA FUNERAL SERVICES LLC d/b/a Elmwood Cemetery and Mausoleum, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

991 F.Supp.2d 1151

CLARK MEMORIALS OF ALABAMA INC., Plaintiff;
v.
SCI ALABAMA FUNERAL SERVICES LLC d/b/a Elmwood Cemetery and Mausoleum, et al., Defendants.

No. 2:13–cv–01356–LSC.

United States District Court,
N.D. Alabama,
Southern Division.

Jan. 14, 2014.

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Leah O. Taylor, Rhonda Pitts Chambers, Taylor & Taylor, Birmingham, AL, for Plaintiff.

John M. Johnson, Jonathan R. Little, Lightfoot Franklin & White LLC, Birmingham, AL, for Defendants.

MEMORANDUM OF OPINION
L. SCOTT COOGLER, District Judge.

Plaintiff Clark Memorials of Alabama, Inc., brought this action, alleging violations of the federal and state antitrust laws along with various Alabama state law torts. Before the Court is Defendants' motion to dismiss Plaintiff's complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 7.) The parties have fully briefed the motion, and the issues are ripe for decision. For the reasons stated below, the motion is due to be granted.

I. Background¹

Plaintiff Clark Memorials of Alabama, Inc. (“Clark”) is a Birmingham, Alabama-based retailer of displays known as memorials that are placed at grave sites in cemeteries. Clark sells two types of memorials—“monuments” and “markers.” Monuments are usually upright structures consisting of granite or marble. Markers are generally flat structures made from stone or bronze. Clark is an independent dealer, meaning that consumers can design and purchase a memorial from Clark but must purchase a burial lot from another

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entity. After a consumer purchases a memorial, Clark orders material from a quarry to produce the memorial. Traditionally, Clark has also offered customers the option of having Clark employees install the memorial at the cemetery. In order to install a memorial, a Clark employee prepares a foundation. This process involves three steps—the employee digs a hole where the memorial rests, fills the hole with a concrete mixture, and then places the memorial upon the foundation. Clark has both sold and installed memorials at Elmwood Cemetery (“Elmwood”).

Elmwood is a cemetery located in Birmingham, Alabama. It was established in 1900, comprises roughly 500 acres, and provides a resting place for over 200,000 persons. Elmwood was ranked the 12th largest cemetery in the United States in 2002. Defendant Service Corporation International (“SCI”), a company that owns and operates cemeteries throughout North America, acquired Elmwood in 1987.² SCI sells interment rights at Elmwood. SCI also sells cemetery-related merchandise and services, including various types of memorials.

SCI owns nine cemeteries in Alabama through a wholly-owned subsidiary, Defendant SCI Alabama Funeral Services, LLC (“SCI Alabama,” collectively the “SCI Defendants”). Four of these are located in the Birmingham metropolitan area. Managers at individual cemetery locations are supervised by divisional management, which receives direction, support, and resources from SCI.

Clark has traditionally been charged a fee by Elmwood so that an Elmwood employee could flag the location of the monument or marker before it is installed. Clark pays the fee and bills it to its customer. This practice predated Elmwood's acquisition by SCI. The SCI Defendants charged a $195 fee to flag each location of a monument or marker in 2013.

At some point prior to June 2013, the SCI Defendants began informing consumers that they would be charged installation fees if they purchased a monument or market from an independent dealer. On June 20, 2013, Defendant Timothy W. Rogers (“Rogers”), SCI's market director for Central Alabama, allegedly informed Clark that it was banned from Elmwood. Rogers instructed Clark to leave its memorials outside the cemetery, and SCI employees would install them. In June, SCI charged $300 in installation fees for a marker and $500 for a monument. On July 2, 2013, the Defendants changed the installation fees to $0.65 per square inch.³ Clark contends that these decisions were part of a plan to develop an exclusive installation policy at Elmwood that would take business away from independent memorial dealers.

On July 22, 2013, Clark filed its complaint, contending that these practices are either monopolization or attempted monopolization, violating Section Two of

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the Sherman Act, 15 U.S.C. § 2 (“§ 2”). Clark also alleged that these policies violate the Alabama Antitrust Act and constitute interference with a contractual relationship, interference with business relationships, and interference with prospective economic advantage under Alabama law. The Defendants have moved to dismiss this action.

II. Standard of Review

Rule 8(a) of the Federal Rules of Civil Procedure requires a pleading to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678–679, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). Instead, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Id. at 678, 129 S.Ct. at 1949 (internal quotations omitted). Iqbal establishes a two-step process for evaluating a complaint. First, the Court must “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. at 1950. Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. Factual allegations in a complaint need not be detailed, but they “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–1965, 167 L.Ed.2d 929 (2007).

Antitrust claims are subject to the general standards of Rule 8 pleading. See id. at 554–555, 127 S.Ct. at 1964. Unlike factual allegations, the Court need not assume that a plaintiff's legal conclusions are true. Chandler v. Secretary of Florida Dept. of Transp., 695 F.3d 1194, 1199 (11th Cir.2012). The Court must construe pleadings broadly and resolve inferences in the plaintiff's favor. Levine v. World Fin. Network Nat'l Bank, 437 F.3d 1118, 1120 (11th Cir.2006). Even though the Court must construe inferences in the plaintiff's favor it need not accept inferences that are unsupported by the facts in the complaint. Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir.2006). Ultimately, the Court must be able to draw a reasonable inference from the facts that the defendant is liable. Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1215 (11th Cir.2012). In reviewing the plaintiff's complaint, the Court must “draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950. To survive a 12(b)(6) motion, “[a]n antitrust complaint must comprehend a so-called prima facie case, and enough data must be pleaded so that each element of the alleged antitrust violation can be properly identified.” Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 995 (11th Cir.1983) (internal citations and quotation marks removed). As with other types of pleadings, “[c]onclusory allegations that defendant violated the antitrust laws and plaintiff was injured thereby will not survive a motion to dismiss if not supported by facts constituting a legitimate claim for relief.” Id.

III. DiscussionA. Antitrust Claims

Section 2 of the Sherman Act provides:

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Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

15 U.S.C. § 2. The Sherman Act distinguishes between concerted conduct, which is covered by both sections 1 and 2, and independent actions covered only by § 2. Am. Needle, Inc. v. Nat'l Football League, 560 U.S. 183, 190, 130 S.Ct. 2201, 2208, 176 L.Ed.2d 947 (2010). Thus, the antitrust laws treat “concerted behavior more strictly than unilateral behavior.” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984). This distinction “avoids judicial scrutiny of routine, internal business decisions.” Am. Needle, Inc., 560 U.S. at 190, 130 S.Ct. at 2209.

The prima facie elements of a monopolization claim require the plaintiff to plead sufficient facts to infer both “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” U.S. v. Grinnell Corp., 384 U.S. 563, 570–571, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966). “Monopoly power” means “the power to control prices in or to exclude competition from the relevant market.” Morris Commc'ns Corp. v. PGA Tour, Inc., 364 F.3d 1288, 1294 (11th Cir.2004) (citing U.S. v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956)). To prove the second element, the plaintiff must show “predatory or exclusionary acts or practices that have the effect of preventing or excluding competition within the relevant market.” Id.

To state an attempted monopolization claim the plaintiff must plead facts to suggest: “(1) that the...