Norfolk Monument Co. v. Woodlawn Memorial Gardens, Inc.

• Citation: 404 F.2d 1008
• Decision Date: 14 November 1968
• Docket Number: No. 12230-12232.,12230-12232.
• Parties: NORFOLK MONUMENT COMPANY, Inc., Appellant, v. WOODLAWN MEMORIAL GARDENS, INCORPORATED, et al., Appellees. NORFOLK MONUMENT COMPANY, INC., Appellee, v. WOODLAWN MEMORIAL GARDENS, INC., Appellant. NORFOLK MONUMENT COMPANY, Inc., Appellee, v. PRINCESS ANNE MEMORIAL PARK, INCORPORATED, and Rosewood Memorial Park, Incorporated, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

404 F.2d 1008 (1968)

NORFOLK MONUMENT COMPANY, Inc., Appellant, v. WOODLAWN MEMORIAL GARDENS, INCORPORATED, et al., Appellees.

NORFOLK MONUMENT COMPANY, INC., Appellee, v. WOODLAWN MEMORIAL GARDENS, INC., Appellant.

NORFOLK MONUMENT COMPANY, Inc., Appellee, v. PRINCESS ANNE MEMORIAL PARK, INCORPORATED, and Rosewood Memorial Park, Incorporated, Appellants.

Nos. 12230-12232.

United States Court of Appeals Fourth Circuit.

Argued June 19, 1968.

Decided November 14, 1968.

Howard I. Legum, Norfolk, Va. (Fine, Fine, Legum & Fine, Norfolk, Va., on brief), for appellants.

Michael E. Bowerman, Bernard Glasser, Norfolk, Va., and Robert H. Patterson, Jr., Richmond, Va. (McGuire, Woods & Battle, Richmond, Va., Clyde W. Cooper, Jefferson B. Brown, Portsmouth, Va., and Wm. C. Worthington, Norfolk, Va., on brief), for appellees.

Before BRYAN, WINTER and CRAVEN, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge:

An antitrust combination and conspiracy, 15 U.S.C. 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., Pennsylvana and Virginia corporations, respectively parent and subsidiary. The Matthews manufacture and sell bronze grave markers throughout the United States. Complainant is a retailer in Norfolk of burial stones and plaques.

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 production, sale and distribution of such items, and have monopolized and attempted to monopolize interstate trade and commerce therein. Upon respondents' motion the suit was dismissed in summary judgment. We affirm.

The inimical conduct ascribed to the defendants in the complaint is this:

"15. Defendants Matthews, Pennsylvania and Matthews, Virginia have 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:

"(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 installed, be accompanied, at a substantial cost, by a certificate of analysis, prepared by an independent laboratory, attesting to the bronze alloy content of said marker; and

"(c) The assessment of an excessive and unreasonable installation, 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.

"(d) 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, Roosevelt 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 Woodlawn, Rosewood, Greenlawn, Roosevelt and Princess Anne, because plaintiff 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 effectual or attempted monopolization, it laid to the defendants. His opinion threshes the record very thoroughly and demonstrates that the evidence does not disclose the 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., 290 F.Supp. 1 (E.D. Va. October 3, 1967). We accept this refinement of the proof.

There was simply no direct evidence proffered by the plaintiff of concert of action among the defendants. The only things the cemetery defendants had in common were 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 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 had had his company\'s markers installed therein on occasion. It 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 (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' regulation prohibiting outsiders from installing markers. The reasonableness of this rule was not weakened by the plaintiff's evidence and is on its face apparent, as the opinion manifests:

"Plaintiff\'s allegation that it is not allowed to install markers in the defendant cemeteries is admitted by the defendants. 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 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 and certification thereof."

The chief feature urged as revealing conscious parallels of behavior by the defendant cemeteries — and thus evincing joint and concerted action — is the fee demanded for installing the makers. 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 prescribe 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 charged a flat fee regardless of marker size; while the others charged a fee computed 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 repositioning 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 judgment — surely not a jury issue.

The District Judge, too, altogether justified the utilization of summary judgment for decision although, granted, it should be "sparingly practiced". Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); cf. First National Bank of Arizona v. Cities Service...