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

• Decision Date: 03 October 1967
• Docket Number: Civ. A. No. 5331.
• Citation: 290 F. Supp. 1
• Parties: NORFOLK MONUMENT COMPANY, Inc., Plaintiff, v. WOODLAWN MEMORIAL GARDENS, INCORPORATED et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

290 F. Supp. 1

NORFOLK MONUMENT COMPANY, Inc., Plaintiff, v. WOODLAWN MEMORIAL GARDENS, INCORPORATED et al., Defendants.

Civ. A. No. 5331.

United States District Court E. D. Virginia, Norfolk Division.

October 3, 1967.

Howard I. Legum, Fine, Fine, Legum & Fine, Norfolk, Va., for plaintiff.

Edwin C. Kellam, Michael E. Bowerman, Kellam & Kellam, Norfolk, Va., for Woodlawn Memorial Gardens, Inc.

William C. Worthington, Ransom W. Etheridge, Worthington, White & Harper, Norfolk, Va., for Rosewood Memorial Park, Inc., and Princess Anne Memorial Park, Inc.

Clyde W. Cooper, Cooper, Spong & Davis, Portsmouth, Va., for Greenlawn Cemetery Park Corp.

Bernard Glasser, Norfolk, Va., for Roosevelt Memorial Park and Cemetery Corp.

Robert H. Patterson, Jr., McGuire, Woods & Battle, Richmond, Va., for Jas. H. Matthews & Co. of Va. and Jas. H. Matthews & Co. of Pa.

MEMORANDUM

MacKENZIE, District Judge.

The plaintiff, Norfolk Monument Company, is a local retail dealer in cemetery monuments and offers as part of its line, bronze cemetery markers which it sells and also installs.

The defendants are Jas. H. Matthews & Co., a cemetery marker manufacturer and wholesaler, Jas. H. Matthews & Co. of Virginia, a printing material distributor, and four memorial park type cemeteries in the Norfolk, Virginia area, namely, Woodlawn Memorial Gardens, Incorporated, Princess Anne Memorial Park, Incorporated, Rosewood Memorial Park, Incorporated, 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 aforesaid interstate trade and commerce in the manufacture, sale and distribution of the markers, 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 defendants' 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 militating 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 charges of each of the defendants for installation make it impossible for the plaintiff to compete with the sale of markers owned by the defendants' cemeteries, themselves.

Also, the plaintiff charges that the defendants, Matthews, have participated in conspiracy meetings with the defendant cemeteries; that the defendants, Matthews, have provided 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 defendants' cemeteries, other than those of Matthews.

To the complaint all 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 Judgment based upon exhaustive discovery, production of documents, affidavits and interrogatories.

In this case the "flow" or "current" of the makers in interstate 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 purchaser 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 handled by the out of state manufacturer in each individual sale as the proper inscriptions of name, date of death, etc., are added to each tablet. Under some arrangements, the Matthews Company agrees 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 by the deceased before his death.

The chain of events...