Arie Mack Moore v. Jas. H. Matthews & Co.
473 F.2d 328
9th Cir.
1973
Check Treatment

*2 CHOY, Before HUFSTEDLER and Judges, SCHNACKE,* Circuit and Dis Judge. trict Judge. HUFSTEDLER, Circuit Appellants (“Moore”), who tery Eugene, monument dealers in Ore- brought gon, seeking an antitrust action injunction damages against eight and Oregon (“Cemeteries”) and (“Matthews”), Jas. Matthews & H. Co. grave a manufacturer bronze mark- alleged conspiracy among ers. Moore Cemeteries and Matthews to restrain trade, monopolization, attempts grave monopolize the business Eugene Area, illegal tying ar- rangements grave marketing violation of sections 1 (15 1, 2).1 of the Sherman Act U.S.C. §§ After Moore’s completed before his first witness had appellees, his over and after fragment presented protest, case, appellees the court invited for directed verdicts and move judgment. granted court the mo- tions, appeals from the re- Roger Tilbury (argued), Henry Kane, sulting judgment. Tilbury Kane, Portland, Or., & Ed- Ray Fechtel, Although variously Husband, ward Johnson the district Frye, Eugene, Or., verdicts,2 appellants. & for referred to directed dismissal * Sehnacke, observed, Honorable Eobert H. “it United As Professor Moore Judge extraordinary States District the Northern will be an case” where a California, sitting by designa- properly District can be after an verdict opening directed tion. statement and before the close of against party whom (5A Clay Moore, 1. Moore has not relied on motion is made. Federal 3 of .T. § (15 14). (2d Practice) 1971) 50.02, ton Act' § ¶ U.S.C. ed. not such case. summary judg on violations of the Sher- 41(b),3 relief based under Rule (15 Act, U.S.C. disposition sections 1 and §§ man

ment, foundation conclusion was the court’s 2). of fact and no issue triable action involves Concerted allegations pleadings, the evidence parties, but the between promises court, of ev before the ex as can be tacit as well *3 opening appellants’ idence recited press. (Theatre Enterprises v. Para matter as a insufficient statement were (1954) Distributing Corp. Film mount relief. law warrant 537, 257, 98 L.Ed. 74 S.Ct. 346 U.S. 273.) parallelism fraterniza Mere judgment Summary is available an establish tion does not only re no material issue fact where (Cement Protective Manufacturers jury mov for and where the mains the (1925) 268 U.S. Ass’n v. United States judgment ing party is entitled 1104), 588, 586, but an L.Ed. 45 69 S.Ct. Building Ma of law. Industrial matter implied from con be (9th terials, Corp. Inc. Interehemical contemplated pattern of formity to a (See 1970) Cir. 437 F.2d 1336. (United Mo v. General conduct. States 50.) Supreme The Court Fed.R.Civ.P. (1966) 127, Corp. 86 384 S.Ct. tors U.S. specifically repeat cautioned 415; 1321, Interstate Cir L.Ed.2d 16 against pro edly use of the (1939) cuit, 306 v. United States Inc. litigation. Nor cedures in antitrust 610; 467, 208, see L.Ed. 59 83 U.S. S.Ct. Co., folk Monument Inc. v. Woodlawn Centu v. Twentieth also United States Gardens, (1969) Memorial Inc. 394 U.S. (S.D.Cal.1956) ry-Fox Corp. 137 Film 700, 658; 1391, Poll 89 22 L.Ed.2d S.Ct. Circuit, F.Supp. the In Interstate Broadcasting System er v. Columbia “ by cceptance com held that Court [a] 464, 486, 7 L. 368 U.S. 82 S.Ct. agreement, of petitors, previous closely Poller, Ed.2d In 458. the Court plan, participate in a invitation to granting considered the standard for which, necessary consequence if car summary judgment cases antitrust out, interstate com is restraint of ried procedures “summary said merce, un is establish sufficient sparingly complex should an be used conspiracy under the Sherman lawful litigation titrust and in where motive 59 S.Ct. at Act.” 306 U.S. leading roles, play tent largely alleged first witness testified con Moore's hands credited, support spirators, which, if would and hostile witnesses thicken facts finding by plot. that Cemeteries It when the witnesses subject requisite compet present upon visited cross-exami injury.4 credibility itive nation that weight their given to be can Moore said In his appraised.” 368 U.S. at prove he that Matthews dis- would at 491. (“Modern tributed its Ceme- handbook teries”) promising, complaint allegations ef- The Cemeteries contained fect, eliminate were that Cemeteries could sufficient to state claims pattern ing place 41(b) in those cemeteries mention of took court's Rule expression joined in the instant case: context of an of dissatis- by the faction court with the failure No. of markers appellants’ satisfy counsel by sold Moore Interments specific directive that he “be about Year Cemeteries to Cemeteries conspiracy.” of a The record would 833 202 1965 supported have an order for sanctions. 869 209 1966 242 1967 861 4. Moore testified while his sales 166 1968 892 stayed nondefendant about 995 70 1969 10 950 same between follow- discovery pretrial thereby gain monopolis- competition indicates adopted following suggestions by profits that certain of the tic Cemeteries practice exclusion “Modern rule absolute contained the booklet.5 exhibit, (others Cemeteries,” outside markers written admitted as an Require suggestions markers) approval for ex- of outside and that numerous contains subject clusionary to ex- rules some of the Cemeteries have established rules and specific clusionary application.6 alloy rules for markers He said content that, grounds in re- set on their that are identical the evidence would show very sponse of “Modern similar to Matthews’ formula as circulation specified Cemeteries,” every one of the Cemeter- “Modern Cemeteries.” developed practices ies enacted rules and prove Moore stated that he would designed He said he to exclude Moore. adopted pric- some of the Cemeteries prove would introduce evidence to ing formula recommended Matthews’ *4 supports object and Matthews this that promised prove salesmen.9 He to that meetings and consultations with various prohibit all Cemeteries installation place representatives took of Matthews by except personnel, markers their own though conspiracy.7 routine, in furtherance of the even unskilled it is a monopolize monuments, 5. can all of the sales of All “You “25. markers your and monuments memorials do markers which not conform to the tery. get regulations No one else can sale.” rules in sections they placed which are will be removed.” states, part: 6. “Modern Cemeteries” P. 18D. organization person or a “No outside the Cleaning by “29. of memorials out- any right question lot owner establishes to permitted.” side firms is not P. 18D. Regulation any which reasonable Rule or they through mail, can be 7. He has been established. Nor referred to contact the competitor questioned by any supplier telephone calls, and visits of Matthews Cemetery Industry.” representatives. P. 6. field re- Several exhibits person sulting pretrial discovery proper No other than the from do indicate “26. Cemetery employees be shall al- communication between some Cemeteries perform any problem.” within the lowed to work on the “Mack Moore affi- One Cemetery permit attorney a written from davit that asserts for three of stated, tighten up the authorized Officers of Ceme- Cemeteries your can “You tery.” regulations P. 15. rules and so that Mack never have a of a Moore will sale sketches, “8. measure- Plans with go cemetery.” your or monument to specifications ments, descriptions and placed be all stonework or bronze to precision matching prescribed 8. The Cemetery, must be submitted to may permit an formulas inference of tacit Management for examination and writ- agreement. speci- “Modern Cemeteries” approval ten before a order foundation Alloy fies that “the Bronze used creat- accepted; be for the work will ing the memorial shall consist of: monuments, the case of memorials and Copper than Not less ......... 87% specifications mausoleums, detailed Not less than ......... Tin 5% plans.” accompany P. 18C. must Not more than....... Lead 2%% Management “11. Not than The reserves more ......... Zinc 5% right reject which, to other elements in total exclusive all work All ” design, workmanship, on account of ma- exceed ........ to 1% any kind, or faults of is in its terials Moore’s first witness testified opinion unsatisfactory. certain cases Moore’s deliveries of non- Matthews bronze markers were any “12. All foundations kind rejected as substandard. by Cemetery, shall be installed charges for which shall be reasonable they cemeteries admit this “[Two have payable in advance.” P. 18C. deny rule or formula and three more they going prove is the of stone “16. Granite kind had But we’re it.] permitted you they it, going for markers or monuments. had and we’re except prove you they use of The other material it with approved permitted.” not be bronze shall their own documents and with their own writing P. admissions.” 18C. own conspiracy section tion for first testified witness task. support under section particu- a claim specific when occasions several accept Moore’s refused to lar Although under a submitted directly sold were where to a sec- is also relevant section 1 claim lot owners. important claim, distinc- tion 2 them. tions between prove that he could He said for the individual the motivation joint First, 2 is not to con- section limited monopol Cemeteries actions therefore, activity. jury, A could certed of Moore and elimination ization individual undertaken find that actions proof of such competitor. Direct by byor of the Cemeteries one or more rarely possible. subjective intent monopolization or Matthews constituted largely Findings on infer based must violating attempted monopolization sec- may appropriately ences if it found no concerted ac- tion even direct from the evidence. draw tivity. discovery, facts disclosed Second, prove one Moore must partial first wit- of Moore’s appellees possessed the more of the nec- proof promised ness, essary power produce market the un- though fragmentary statement, assertions, if result. Moore’s lawful enough prevent be, eight pri- true, that Cemeteries are the *5 judgment. Eugene mary area together per- they account for 72 course, must fulfill his Of Moore County cent burials Lane promises prevail. to If of he is if largest is that Matthews manufac- adduced, jury could in is thus cemetery turer of bronze prices appellees conspired fix to fer that per- States, producing 65 to 70 United group boycott, subject a to Moore to adequate markers, of are to cent such per of of are se violations both which genuine raise a issue of fact about mar- (United v. Act. States So Sherman power appellees. ket of these (1940) cony-Vacuum 310 U.S. Oil Co. 1129; 150, 811, 60 84 L.Ed. Fash S.Ct. Finally, ruled this court has Originators’ America, of Inc. ion Guild attempt monopolize section 2 under to (1941) v. Federal Commission 312 Trade pow proof monopoly require not' of does 457, 703, 949.) 85 L.Ed. 61 S.Ct. U.S. “dangerous er. there is a Proof that conspiracy might jury find a tacit certainly probability of success” is response or to “invitation” Matthews’ enough. Lessig v. Tidewater Oil Co. case, conspiracy. no an overt In either (9th 1964) 327 F.2d 459. Evidence Cir. necessary and the formal power relevant, not in of market but may jury from infer business dispensable Lessig to a claim. (See Monument, su behavior. pra, Norfolk 1391, 704, 22 Moore also claimed defend at 89 S.Ct. 394 U.S. therein.) illegal engaged poli 658, tying and cases cited ants have L.Ed.2d arrangements, Tying whereby a cies. alleged monopoli Moore product agrees of his seller sale monopolize. attempts zation pur buyer on condition that Monopolization, proscribed by 2 section (or service) product a second chases Act, occurs an in when Sherman illegal seller, section from are under group power or market dividual uses International 1 Act. of the Sherman prices or to exclude control or control (1947) 332 U. Salt States Co. v. United 12, 20, appeal competitors. 392, E. L.Ed. United I. S. 68 92 States S.Ct. 26, dismissed, 747, 68 S.Ct. 92 DuPont De & Co. 351 U.S. Nemours 332 true, 994, Moore’s fac 100 L.Ed. L.Ed. 335. Taken as U.S. showings supporting numerous inci- The conduct a establish cause ac- tual Judge SCHNACKE, (concur- arrangements. District tying Where dents ring specially): practices or similar or uniform such response “invita- to an established I concur the conclusion sum- strong conspire,” constitute tion mary judgment inappropriate conspiracy of a combination evidence situation as it stood when the court be- Act of trade Sherman restraint low ruled. Circuit, (See Inc. v. Interstate 1.§ States, supra, at 306 U.S. United Provisions of the Federal Rules could 1 also L.Ed. Section stages S.Ct. have been at invoked earlier prohibits restrain proceedings. “contracts” Counsel for Moore had arrangements tying trade; supply specifics forbidden pri- failed to trial, section although repeatedly are contracts that violate or to the ad- joint no action. if there is other even monished to do so. Yet no sanctions sought such failure were and none was from which There was some imposed. The court itself contented or all could have found that some a warnings and threats that were never policies of Cemeteries have established carried out. Thus the trial commenced cemetery tying practices the sale pretrial presentation of the facts tying purchase of a marker lot to the belatedly issues cast the sale of a lot installation appropriate about for some form of met- of section 1. violation ing confusing out sanctions—hence the ceme- asserts an affidavit that one just remarks about doing. what the court was changed peri- tery’s practice twice in the rulings proper None of the pleadings od covered —first stage fit the situation. It too policy prohibiting outside installation early grant a directed verdict under policy requiring markers, then to a 50(a). 41(b) dismissal, Rule or a Rule purchased from the all markers be plaintiffs completed since had not case, response tery. In another Summary judgment case. was out of *6 interrogatory includes an attached time, being the it clear intendment demanding cemetery letter from one prior Rule 56 that it be invoked to the not “our families” that Moore stating solicit commencement of a trial —in fact it is a policy for the cus- form of substitute for a trial. sign purchase agreement to tomer cemetery. all monuments from the Sim- unnecessary I think it decide wheth- respect presented ilar evidence is with er plain- has been indication of practices of other Cemeteries. ability tiffs’ to adduce sufficient adequate to foreclose sum- evidence was go to the trier fact. judgment tying theory. mary on the All I would hold Here, Poller, supra: “It as justifiable pretrial vexation with the upon of the evidence a all conduct of Moore’s counsel respondents. But would be with we failing bring to define or forth say ‘it is cannot on this record ” might of their contentions have been (368 quite clear the truth is.’ what dealt sanctions under Rule U.S. at 82 S.Ct. at See Kennedy having proceed trial, Mason 334 U.S. but v. Silas let the case 249, 257, 92 L.Ed. the court could make the disposition attempted

Reversed and remanded. here.