Clark Memorials of Alabama Inc v. SCI Alabama Funeral Services LLC et al
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 1/14/2014. (MSN)
2014 Jan-14 PM 02:35
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CLARK MEMORIALS OF
SCI ALABAMA FUNERAL
SERVICES LLC d/b/a
ELMWOOD CEMETERY AND
MAUSOLEUM, et al.,
MEMORANDUM OF OPINION
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.
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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 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 is a cemetery located in Birmingham, Alabama. It was established in
In a 12(b)(6) motion, the Court accepts the Plaintiff’s allegations in the complaint as true
and construes those allegations in favor of the Plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir.
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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
Clark pleaded that SCI has a particular acquisition strategy focused on purchasing “heritage
properties, [or] businesses known most commonly by the names of founding families. Part of its
business strategy is to continue to operate the businesses under the former heritage names. In 1987,
SCI acquired Elmwood Cemetery.” (Doc. 1 at 5 ¶ 11.) Although this may be an attempt to suggest
that Elmwood is a “heritage property,” Clark never pleaded that Elmwood actually is a “heritage
property” or that it continues to operate under a “heritage name.”
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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 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
The Court reads this as an attempt to allege a price increase. Clark pleaded that a typical
four-foot monument with a five-foot base would cost $780 to install, and a monument with a ten-foot
base would cost $1,560. (Doc. 1 at 8 ¶ 28.)
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advantage under Alabama law. The Defendants have moved to dismiss this action.
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 (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 (2007).
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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
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plaintiff was injured thereby will not survive a motion to dismiss if not supported by
facts constituting a legitimate claim for relief.” Id.
Section 2 of the Sherman Act provides:
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 (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 (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
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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 (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 (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 defendant has engaged in predatory or anticompetitive conduct
with (2) a specific intent to monopolize and (3) a dangerous probability of achieving
monopoly power.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S. Ct.
884, 890-891 (1993). The intent and dangerous probability elements are related, as a
plaintiff must show intent to monopolize to establish that there is a dangerous
likelihood of monopolization. Swift & Co. v. U.S., 196 U.S. 375, 396, 25 S. Ct. 276, 279
(1905). Clark contends that it has made out either a monopolization or attempted
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monopolization claim. However, Clark has not alleged sufficient facts to state a
plausible antitrust claim.
The starting point for both monopolization and attempted monopolization
claims is analysis of monopoly power. To sustain a § 2 monopolization claim, the
plaintiff must allege facts demonstrating that the defendant actually holds monopoly
power. See Grinnell Corp., 384 U.S. at 570-571, 86 S. Ct. at 1704. The plaintiff must
similarly allege for an attempted monopolization claim that “the defendant comes
close to achieving monopoly power in the relevant market.” Gulf States Reorganization
Group, Inc. v. Nucor Corp., 721 F.3d 1281, 1285 (11th Cir. 2013). The Court’s analysis
of monopoly power involves two steps.
First, the Court must define the relevant market. This is a basic element of most
antitrust claims because such claims center around an entity’s economic power in a
particular market. U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 994 (11th Cir.
1993) (“Defining the market is a necessary step in any analysis of market power and
thus an indispensable element in the consideration of any monopolization or attempt
case arising under section 2.”). A well-pleaded market allows the Court to determine
that it is plausible “a monopolist, cartel, or oligopoly in that market would be able to
reduce marketwide output simply by cutting its own output, and thereby raise
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marketwide prices above competitive levels.” Id. at 995-996.
The relevant market is “a distinct market, with a specific set of geographical
boundaries and a narrow delineation of the products at issue.” Spanish Broad. Sys. of
Fla., Inc. v. Clear Channel Commc’ns., Inc., 376 F.3d 1065, 1074 (11th Cir. 2004). The
geographic boundary, called the geographic market, “is the area in which the product
or its reasonably interchangeable substitutes are traded.” T. Harris Young & Assoc.,
Inc. v. Marquette Elecs., Inc., 931 F.2d 816, 823 (11th Cir. 1991). The Court must
consider “[p]rice data and such corroborative factors as transportation costs, delivery
limitations, customer convenience and preference, and the location and facilities of
other producers and distributors.” Id. The product dimension, or product market, “is
defined in part by whether a group of manufacturers, because of the similarity of their
products, have the ability—actual or potential—to take significant amounts of
business away from each other.” Gulf States Reorganization Group, Inc., 721 F.3d at
1286 (internal quotation marks removed). “The reasonable interchangeability of use
or the cross-elasticity of demand between a product and its substitutes constitutes the
outer boundaries of a product market for antitrust purposes.” U.S. Anchor Mfg., Inc.,
7 F.3d at 995 (citing Brown Shoe Co. v. U.S., 370 U.S. 294, 325, 82 S. Ct. 1502, 1523
(1962)) (footnote omitted).
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Second, once the relevant market has been defined, “[t]he prinicpal measure
of actual monopoly power is market share, and the primary measure of the probability
of acquiring monopoly power is the defendant’s proximity to acquiring a monopoly
share of the market.” Id. at 999. Indeed, a low market share generally precludes a
monopolization claim as a matter of law. See Yoder Bros., Inc. v. Cal.-Fla. Plant Corp.,
537 F.2d 1347, 1368-1369 (5th Cir. 1976) (finding that 20% market share in defined
ornamental plant market was insufficient to establish a monopolization claim as a
matter of law and was relevant to attempted monopolization claim), and Sulmeyer v.
Coca Cola Company, 515 F.2d 835, 850 (5th Cir. 1975) (noting 22% of relevant market
was insufficient to establish monopolization).4 Measuring monopoly power is more
speculative when evaluating an attempted monopolization claim, but the Court must
still analyze concentration of power within a relevant market. See U.S. Anchor Mfg.,
Inc., 7 F.3d at 994.
Predatory or anticompetitive conduct is also an essential element of both
monopolization and attempted monopolization claims. See Spectrum Sports, Inc., 506
U.S. at 456, 113 S. Ct. at 890-891 (attempted monopolization), and Morris Commc’ns.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) , the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
close of business on September 30, 1981.
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Corp., 364 F.3d at 1294 (monopolization). Clark’s facts regarding monopoly power are
intertwined with the types of anticompetitive conduct it alleges—tying and unilateral
refusal to deal. The Court examines each in turn.
A tying arrangement is “an agreement by a party to sell one product but only
on the condition that the buyer also purchases a different (or tied) product, or at least
agrees that he will not purchase that product from any other supplier.” N. Pac. Ry. Co.
v. U.S., 356 U.S. 1, 5-6, 78 S. Ct. 514, 518 (1958). These agreements are prohibited
because “[t]hey deny competitors free access to the market for the tied product, not
because the party imposing the tying requirements has a better product or a lower
price but because of his power or leverage in another market.” Id. at 6, 78 S. Ct. at 518.
However, not every refusal to sell products separately is an illegal tying arrangement.
Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 11, 104 S. Ct. 1551, 1558
(1984). “[T]he essential characteristic of an invalid tying arrangement lies in the
seller’s exploitation of its control over the tying product to force the buyer into the
purchase of a tied product that the buyer either did not want at all, or might have
preferred to purchase elsewhere on different terms.” Id. at 12, 104 S. Ct. at 1558.
Tying arrangements have been prohibited by multiple statutory provisions.
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Illinois Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 34, 126 S. Ct. 1281, 1286 (2006).
“They have been condemned as improper extensions of the patent monopoly under
the patent misuse doctrine, as unfair methods of competition under § 5 of the Federal
Trade Commission Act, 15 U.S.C. § 45, as contracts tending to create a monopoly
under § 3 of the Clayton Act, 15 U.S.C. § 14, and as contracts in restraints of trade
under § 1 of the Sherman Act.” Id. Clark has brought its antitrust claim solely as a §
2 claim, and Defendants contend that tying arrangements are not punishable under §
In some cases, the underlying facts that support a § 1 claim may support a § 2
monopolization claim. See Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S.
451, 482-483, 112 S. Ct. 2072, 2090-2091 (1992). Here, the Court need not determine
whether the tying claim should properly be brought as a § 2 claim or a § 1 claim
because Clark has not alleged sufficient facts to show a § 1 tying arrangement. See id.
at 481, 112 S. Ct. at 2090 (noting that a § 2 monopolization claim requires a greater
showing of economic power than a § 1 claim).
The Court reads Clark’s complaint to allege two separate tying arrangements.
First, Clark alleges that the SCI Defendants “are exploiting their control over the
tying product (the burial lot) to force the buyer into the purchase of a tied service (the
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installation of memorials).” (Doc. 1 at 14 ¶ 53.) Elsewhere, Clark pleaded that the
Defendants seek to “exploit their dominant position in the installation of memorials
market in order to then monopolize the sale of memorials market.” (Doc. 1 at 12 ¶
44(d).) Thus, for this claim the installation of memorials market is the tying product,
and the sale of memorials market is the tied product.
Before actually pleading that there is an illegal tying arrangement that is
anticompetitive, Clark must plead sufficient facts to plausibly suggest that a tie exists.
See T. Harris Young & Associates, Inc. v. Marquette Elecs., Inc., 931 F.2d 816, 822 (11th
Cir. 1991) (“Only after the existence of a tie is shown is it necessary to determine
whether an illegal tying arrangement exists.”). Regarding the tie of installation services
to burial lots, Clark pleaded that “[u]nder the Defendants’ exclusive installation
policies, independent memorial dealers, including the Plaintiff, can no longer prepare
foundations for monuments and markers which these independent dealers sell to their
customers.” (Doc. 1 at 13 ¶ 49.) While the SCI Defendants contend that other
installers can install memorials at Elmwood and only Clark has been excluded, the
allegations in the complaint suggest that all independent memorial dealers have been
prohibited from installing memorials at Elmwood. At this stage of the litigation, Clark
has plausibly alleged that the purchaser of a burial lot at Elmwood must also buy
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installation services from the SCI Defendants.
Similarly, Clark has arguably alleged that memorials and installation are tied.
Clark pleaded that the imposed installation charges “prevent families from
memorializing the last resting place of their loved ones at a cost within their economic
means.” (Doc. 1 at 11 ¶ 44(a).) Generally, for a tie to exist, “a seller must withhold
product A unless the buyer also selects product B.” T. Harris Young & Assoc., Inc., 931
F.2d at 822 (11th Cir. 1991). Clark has not alleged that the SCI Defendants are actually
withholding installation services, the tying product, unless a customer also purchases
a memorial from the SCI Defendants.5 However, it may be possible that Clark can
allege that the installation charges are such that a consumer essentially has no choice
but to choose an SCI memorial. See Florida Monument Builders v. All Faiths Memorial
Gardens, 605 F. Supp. 1320, 1322 (S.D. Fla. 1984) (suggesting that use of rules and
regulations that “either mandate the combined sale or impose severe burdens on those
who would choose not to make the combined purchase” may constitute a tie even
though it was ultimately not an illegal tie based on the market analysis).
However, the existence of a tie is the beginning, and not the end, of the inquiry.
Clark pleaded that it has 28 contracts with customers who have ordered memorials not yet
installed and that six of these have been delivered to Clark and are available for immediate
installation. However, Clark has not pleaded facts as to suggest that SCI refuses to install memorials
even after Clark has paid the installation fees.
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See T. Harris Young & Assoc., Inc., 931 F.2d at 822. The test for an anticompetitive,
illegal tying arrangement has been defined in various ways, but the standard elements
include the following: “(1) two separate products (the tying and the tied product; (2)
sufficient economic power in the tying market to coerce purchase of the tied product;
(3) involvement of a not insubstantial amount of interstate commerce in the tied
market; and (4) anticompetitive effects in the tied market.” Sulmeyer, 515 F.2d at 844.
“The key to such an arrangement’s anticompetitiveness (and thus its illegality) is the
seller’s ability to force buyers to purchase one product in the package, the tied product,
by virtue of the seller’s control or dominance over the other product in the package,
the tying product.” Tic-X-Press, Inc. v. Omni Promotions Co. of Ga., 815 F.2d 1407,
1414 (11th Cir. 1987). The ability to coerce consumers is premised on the “seller
ha[ving] appreciable economic power in the tying product market.” Eastman Kodak
Co., 504 U.S. at 462, 112 S. Ct. at 2079 (internal quotation marks omitted).
Tying Installation Services to Burial Lots
Clark’s first tying claim is premised on the SCI Defendants’ alleged dominance
in the burial lot market. As with monopolization and attempted monopolization
claims generally, the Court’s analysis must begin with whether Clark properly pleaded
the relevant product and geographic markets. See Thompson v. Metropolitan Multi-List,
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Inc., 934 F.2d 1566, 1572 (11th Cir. 1991) (determining whether a relevant market was
properly defined before evaluating whether there was a tying arrangement). The
complaint alleges that “burial lots” are a tying product market for antitrust purposes.6
Clark pleaded generally that “[t]he relevant geographic market is the metropolitan
Birmingham area.” (Doc. 1 at 10 ¶ 40.) Although that portion of the complaint
appeared to define the geographic market for installation services, the Court reads this
as an attempt to define the geographic market for burial lots as well.7 A cemetery does
The Court questions whether Clark has sufficiently defined the tying product market. See
Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1503 (11th Cir. 1985) (defining the prima facie
elements of a tying claim to require a showing of market power within the “tying product market”).
Cremations, for example, are functionally interchangeable products with burials in that both are
accepted ways to handle a body after a person has died. See U.S. Anchor Mfg., 7 F.3d at 995-996
(evaluating functional interchangeability of anchors but noting that facts ultimately showed that
consumer demand was separate). A well-pleaded product market is typically defined based on
consumer behavior. See Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1337 (11th Cir. 2010). Clark
has not pleaded any facts to suggest that consumers view burial lots as a product market separate and
distinct from other competing product. Without additional facts to suggest why Clark has defined
the product market this way, the Court cannot determine that the product market it has pleaded is
in fact plausible. See id. at 1336 (stating that to survive a motion to dismiss antitrust plaintiffs must
plausibly define the contours of the product market).
The portion of Clark’s complaint dedicated to defining the “Relevant Market and Product
Service” appears to only attempt to define a market for “memorial installation services.” (Doc. 1
at 10.) However, Clark also directs the Court to various “cemetery cases” that it claims support its
antitrust theories in this case. These cases tend to define the geographic market in multiple areas as
either a metropolitan area or a county. See Monument Builders of Greater Kansas City, Inc. v. Am.
Cemetery Ass’n. of Kansas, 891 F.2d 1473, 1476 (10th Cir. 1989) (emphasizing that complaint alleged
tying in “the Kansas City area”), Rosebrough Monument Co. v. Mem’l Park Cemetery Assoc., 666 F.2d
1130, 1143 (8th Cir. 1981) (noting that “the exclusive foundation preparation policy, upon which [the
plaintiff ] bases its claim, is uniformly followed by nearly all of the cemeteries in St. Louis”), and
Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1211 (9th Cir. 1977) (describing cemetery and
memorial markets in Lane County, Oregon).
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not generally constitute its own geographic market. Mich. Div.-Monument Builders of
North America v. Mich. Cemetery Assoc., 524 F.3d 726, 735 (6th Cir. 2008) (affirming
dismissal under Rule 12(b)(6) of an antitrust claim where the pleaded geographic
market was each individual cemetery in a state). Although a cemetery may have
control within its borders, “each individual cemetery has nothing close to exclusive
control over burial lots outside of the four corners of its own land.” Id. at 734.
However, Clark has not pleaded sufficient facts to suggest that the geographic market
in burial lots is limited to the Birmingham metropolitan area.
In order to survive a 12(b)(6) motion to dismiss, “antitrust plaintiffs . . . must
present enough information in their complaint to plausibly suggest the contours of the
relevant geographic and product markets.” Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d
1327, 1337 (11th Cir. 2010). Here, cemetery owners in the Birmingham area may
compete in a broader geographic area. For example, a consumer living outside
Birmingham who was born in Birmingham may choose to be buried in Birmingham.
Similarly, a consumer currently living in Birmingham may choose among cemeteries
located in Birmingham and cemeteries in other cities where he or she has lived. If
Clark pleaded facts about consumer demand in burial lots, the Court would have to
treat those facts as true. See Twombly, 550 U.S. at 556, 127 S. Ct. at 1965. However, the
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Court cannot infer that Clark has pleaded a plausible geographic market without some
facts regarding consumer behavior. See Jacobs, 626 F.3d at 1338 (noting that basic
questions about consumer behavior are “crucial to understanding whether a separate
market exists” in the product context).
Moreover, even if the Court accepts that Clark has plausibly defined the
relevant product market as burial lot sales in the Birmingham metropolitan area, Clark
has not pleaded any facts to show that the SCI Defendants hold market power in the
burial lots market. As with monopolization claims, market power in a tying claim
frequently requires an analysis of market share. See, e.g., Jefferson Parish Hospital
District No. 2, 466 U.S. at 26-27, 104 S. Ct. at 1565-1566 (noting that a hospital lacked
“dominance” in a geographic area when 70% of a parish’s residents chose other
hospitals). Clark has not alleged an actual percentage or relative percentage of this
market that the SCI Defendants hold. See Monument Builders of Greater Kansas City,
Inc. v. Am. Cemetery Ass’n of Kansas, 891 F.2d 1473, 1476 (10th Cir. 1989) (noting that
the complaint alleged that group of 30 cemetery owners possessed 70-75% of the burial
Moreover, Clark has not pleaded any facts from which the Court could infer
market power. Clark pleaded that SCI owns 1,437 funeral service locations, 374
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cemeteries in North America, and nine cemeteries in Alabama. Each of these facts is
irrelevant to the Birmingham geographic market. Clark pleaded that the SCI
Defendants own four cemeteries in the Birmingham metropolitan area. Clark did not
provide any facts regarding the total number of cemeteries in the Birmingham area.
Moreover, even if Clark had done so, this is irrelevant to the specific product market
that it has defined—burial lots. Clark could own a large number of cemeteries with a
small number of available burial lots, and another cemetery owner with one large,
empty cemetery would actually possess the dominant position in the burial lots
In some cases, land has been considered so unique that it can serve as evidence
of market power even if the landholder lacks a dominant market share. See N. Pac. Ry.
Co. v. U.S., 356 U.S. 1, 7, 78 S. Ct. 514, 519 (1958) (noting in a tying case that the tying
market “land was strategically located in checkerboard fashion amid private holdings
and within economic distance of transportation facilities”). However, in order for a
product to be so unique that it conveys market power, the seller must have “some
advantage not shared by his competitors in the market for the tying product.” U.S.
Steel Corp. v. Fortner Enterprises, Inc., 429 U.S. 610, 620, 97 S. Ct. 867-868 (1977).
Clark has not alleged sufficient facts to suggest that Elmwood is so unique as to
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convey market power. Clark has alleged the following regarding Elmwood and SCI’s
business in Birmingham:
Established in 1900, Elmwood Cemetery is one of
four cemeteries now owned by SCI Alabama in the
Birmingham metropolitan area. The cemetery
comprises roughly 500 acres, provides the final
resting place for over 200,000 persons and as of
2002 was ranked as the 12th largest cemetery in the
(Doc. 1 at 5 ¶ 12.) Clark also suggested that SCI’s general policy is to acquire
“heritage properties.” None of these facts suggest that Elmwood offers the SCI
Defendants a unique advantage not shared by other competitors in the burial lots
market. Regarding Elmwood’s age, Clark has not pleaded that Elmwood is either one
of the only cemeteries of that age with available burial lots or that burial lots in an older
cemetery are preferred by consumers to a burial lot in a newer cemetery. Cf. Tic-XPress, Inc. v. Omni Promotions Co. of Ga., 815 F.2d 1407, 1420 (11th Cir. 1987) (noting
that an arena was a unique facility for musical concerts because it was the only
enclosed facility capable of exceeding 4,000 people). Similarly, Clark did not actually
plead that Elmwood is a “heritage property.” Even if Clark had done so, it has not
pleaded that Elmwood is the only “heritage property” in Birmingham or that
“heritage properties” are more desirable to consumers than other cemeteries. See
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Breau Bros. Farms, Inc. v. Teche Sugar Co., 21 F.3d 83, 87-88 (5th Cir. 1994)
(evaluating market power of sugar cane land in a Louisiana parish and rejecting a
theory that every owner of sugar cane land in the parish possessed market power).
From these facts, the only unique feature the Court could possibly infer about
Elmwood is its size. However, Clark has not pleaded any facts to suggest that
consumers prefer being buried in a large cemetery as opposed to a smaller one. It is
unreasonable to expect, without supporting facts, that consumers would simply
choose an unattractive package from Elmwood instead of simply choosing another
cemetery. See Baxley-DeLamar Monuments, Inc. v. American Cemetery Assoc., 938 F.2d
846, 851 (8th Cir. 1991) (“Cemetery lots are of course unique, as all land is unique, but
the mere fact that the tying product is real estate does not convey market power.”)
Thus, without market power in the tying product market, there is no
anticompetitive conduct because the tying arrangement is not illegal. See Jefferson
Parish Hosp. District No. 2, 466 U.S. at 25, 104 S. Ct. at 1565 (noting that “there is
nothing inherently anticompetitive about packaged sales”). In Jefferson Parish, the
Court determined that although a hospital required all patients at that hospital to use
specified anesthesiological services, “[i]f no forcing is present, patients are free to
enter a competing hospital and to use another anesthesiologist.” Id. Here, a consumer
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who does not want to use the SCI Defendants’ installation services is free to select a
cemetery other than Elmwood. See N. Pac. Ry. Co., 356 U.S. at 6-7, 78 S. Ct. at 519
(“As a simple example, if one of a dozen food stores in a community were to refuse
to sell flour unless the buyer also took sugar it would hardly tend to restrain
competition in sugar if its competitors were ready and able to sell flour by itself.”)
There is no illegal tying arrangement. Insofar as Clark’s antitrust claim is premised on
a tie between burial lots and installation services, the claim is due to be dismissed.
Tying Sale of Memorials to Installation Services
Clark’s second tying claim is premised on its allegation that the SCI Defendants
have exercised power in installation services to force consumers to purchase an SCI
memorial. As Clark has pleaded this claim, it fails for the same reasons as the first
tying arrangement. Clark, when pleading the market for memorial installation services
alleged that “[t]he relevant geographic market is the metropolitan Birmingham area.”
(Doc. 1 at 10 ¶ 40.)
Assuming that Clark properly defined the relevant market, Clark has not
pleaded any facts to show that the SCI Defendants possess market power in the
installation market for greater Birmingham. In order to show market power, Clark
would need to plead facts suggesting that the SCI Defendants either have market
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power in the broader market outside Elmwood or that so many installations are
performed at Elmwood that the exclusive installer at Elmwood would have market
power in the broader Birmingham market. See Jefferson Parish Hospital District No. 2,
466 U.S. at 18, 104 S. Ct. at 1561 (“[A]ny inquiry into the validity of a tying
arrangement must focus on the market or markets in which the two products are sold,
for that is where the anticompetitive forcing has its impact.”) Although Clark pleaded
that it sold roughly 122 monuments to be used at Elmwood in 2012, it did not plead
how many installations it performed or any facts to suggest that installations at
Elmwood are a major part of the installations in Birmingham generally.8 The
complaint also provided no indication as to how many installations the SCI
Defendants performed, both at Elmwood and across Birmingham generally. Finally,
Clark did not plead that the SCI Defendants’ installation services provide them a
unique advantage that might convey market power—in fact they pleaded that the SCI
Defendants’ installation services are inferior to Clark’s. Thus, Clark has not alleged
a plausible tying claim on this basis.
However, in deference to Clark on a 12(b)(6) motion, the Court reads the
complaint as an attempt to allege a “lock-in” claim similar to that of Eastman Kodak.
Clark pleaded it averaged selling a memorial for Elmwood every three days in 2012, which
means that it sold roughly 122 memorials.
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In Eastman Kodak, a manufacturer of copying machines, Kodak, provided replacement
parts for those machines along with servicing of the machine. 504 U.S. at 455, 112 S.
Ct. at 2076. A group of independent servicers known as ISOs competed with Kodak
in providing service. Id.9 Kodak restricted access to its parts, forcing many ISOs out
of business. Id. at 458, 112 S. Ct. at 2078. The ISOs sued Kodak, contending that
Kodak tied its service to the sale of its parts. Id. at 459, 112 S. Ct. at 2078. The Court
rejected Kodak’s contention that competition in the copier market precluded any
finding of monopoly power in the aftermarkets. Id. at 466-467, 112 S. Ct. at 2082.
When there are “significant information and switching costs” associated with the
aftermarkets, competition in the initial market may not be enough to avoid antitrust
liability. Id. at 473, 112 S. Ct. at 2085.
The complaint contains an allegation that “[t]he SCI Defendants have the
power to exclude competition in the installation of memorials market at Elmwood
Cemetery.” (Doc. 1 at 13 ¶ 48.) This could be read as a contention that Elmwood is
the initial market, and the installations and sales of memorials are actually two
aftermarkets. However, an essential element of a lock-in claim is a change in policy in
The ISOs had different arrangements with customers. Some customers purchased their
parts from Kodak and hired the ISOs purely for service. Others purchased both service and parts
from the ISOs. 504 U.S. at 458, 112 S. Ct. at 2077.
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the after-markets after a consumer has made a purchase in the initial market. Michigan
Division-Monument Buidlers of North America, 524 F.3d at 737 (stating that “a lock-in
claim requires specific factual allegations in the complaint that the defendant either
changed its rules after the initial sale was made or concealed its rules from its
customers”); PSI Repair Services, Inc. v. Honeywell, Inc., 104 F.3d 811, 820 (6th Cir.
1997) (noting that “the change in policy in Kodak was the crucial factor in the Court’s
decision”); Lee v. Life Ins. Co. of North America, 23 F.3d 14, 20 (1st Cir. 1994). Clark’s
complaint alleged that the SCI Defendants began charging installation costs in June
2013 and changed the installation costs in July 2013. However, Clark’s complaint also
alleges that “[b]eginning at some time prior to June 2013, Defendants began informing
consumers that if they choose to purchase a monument or memorial from an
independent memorial dealer, they will be charged installation fees.” (Doc. 1 at 11 ¶
43 (emphasis added).) Thus, Clark’s facts actually foreclose a true “lock-in.” While
the change in policy may have surprised Clark, the facts indicate that potential
consumers were told in advance of the changes. See Eastman Kodak, 504 U.S. at 473478, 112 S. Ct. at 2085-2088 (focusing on the impact of a change in policy on
Although Clark alleges that it has existing contracts for memorials that have not
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yet been installed at Elmwood, it does not plead specific reasons why the memorials
are yet to be installed. It has not alleged that these consumers entered into contracts
unaware that their decision to purchase a memorial from an independent dealer would
subject them to installation fees that are possibly greater than they would be charged
if they purchased an SCI memorial. Thus, Clark has not alleged any facts to suggest
expensive switching costs for consumers. See Maris Distributing Co. v. Anheuser-Busch,
Inc., 302 F.3d 1207, 1223 (11th Cir. 2002).
Moreover, Clark has failed to plead any facts that suggest information costs
similar to those in Eastman Kodak. Clark pleaded that “[b]ecause Defendant SCI
Alabama does not publicize its installation charges, a consumer is less informed to
insure that competitive prices are charged for installation of memorials.” (Doc. 1 at
9 ¶ 33.) However, Eastman Kodak involved “[l]ifecycle pricing of complex, durable
equipment.” 504 U.S. at 473, 112 S. Ct. at 2085. In the service and parts aftermarkets,
a consumer of copiers would have to price its need for these two items throughout the
life of the machine. Furthermore, “lifecycle costs will vary from customer to customer
with the type of equipment, degrees of equipment use, and costs of down-time.” Id.
at 474, 112 S. Ct. at 2086. Here, the only variable in the SCI Defendants’ pricing is
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either the type or size of the memorial.10 Although it might be easier for consumers if
SCI Alabama published installation cost information, Clark has not alleged that
installation pricing information is either difficult or impossible to acquire like the
pricing information in Eastman Kodak. 504 U.S. at 473, 112 S. Ct. at 2086.
Thus, Clark has not pleaded anticompetitive conduct that would sustain a
monopolization or attempted monopolization claim in either memorial installations
or memorial sales. The Court also notes that insofar as the complaint attempts to state
a monopolization or attempted monopolization of the sale of memorials market, such
a claim would also fail because Clark has not defined a relevant geographic market in
the sale of memorials market.
The Court reads Clark’s complaint to again allege that the Birmingham
metropolitan area is the relevant geographic market. However, Clark provides no
factual support for this assertion, and thus the Court cannot determine whether these
are the plausible contours of a geographic market. See Jacobs, 626 F.3d at 1336. There
is no indication that consumers in Birmingham would only purchase a memorial from
a brick-and-mortar dealer in Birmingham. Clark alleges that memorial materials are
In previous pricing regimes, the SCI Defendants allegedly charged costs based on whether
the item installed was a monument or memorial. However as of July 2, 2013, they allegedly charged
$0.65 per square inch.
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regularly shipped to Alabama from other states. It is equally reasonable that a
consumer would purchase a memorial online from another city or state and then have
that finished memorial shipped to Birmingham.
Clark has not pleaded any facts related to market share in the memorial sales
market. It only pleaded generally that the SCI Defendants “sell cemetery-related
merchandise and services, including stone monuments and markers, bronze
memorials, merchandise installations, and burial openings and closings.” (Doc. 1 at
5 ¶ 13.) In its brief, Clark actually states that it, not SCI, is “the largest monument
dealer in the City of Birmingham.” (Doc. 13 at 8.) This fact, if anything, suggests that
Clark, and not SCI, may hold substantial economic power in the sale of memorials
Both monopolization and attempted monopolization claims require substantial
market share. See McGahee v. N. Propane Gas Co., 858 F.2d 1487, 1506 (11th Cir. 1988)
(noting that hold of 60-65% of market share created a dispute of fact as to whether an
entity had a dangerous probability of achieving monopoly power for an attempted
monopolization claim). Although Clark contends that various “cemetery cases”
support its position, these cases also involved substantial market share. See Monument
Builders of Greater Kansas City, Inc., 891 F.2d at 1482 (examining complaint on a
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12(b)(6) motion and noting that it alleged that the thirty cemeteries at issue had a 7075% market share), Rosebrough Monument Company v. Memorial Park Cemetery
Association, 666 F.2d 1130, 1136 (8th Cir. 1981) (noting that virtually all of the fifty
cemeteries in the St. Louis metropolitan area had an exclusive foundation policy), and
Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1211 (9th Cir. 1977) (observing that
eight cemeteries in a county performed 78% of interments there over a nine-year
period). Thus, Clark’s tying claims are due to be dismissed, and the Court need not
consider whether they should have been brought under § 1 or § 2 of the Sherman Act.
Refusal to Deal
Clark also contends that it has pleaded sufficient facts on a refusal to deal claim
in order to survive a motion to dismiss. Specifically, Clark claims that it has pleaded
that Elmwood is an “essential facility,” such that the Defendants must allow Clark
access to Elmwood to install its memorials.
“In the absence of any purpose to create or maintain a monopoly, the [Sherman
Act] does not restrict the long recognized right of trader or manufacturer engaged in
an entirely private business, freely to exercise his own independent discretion as to
parties with whom he will deal.” U.S. v. Colgate & Co., 250 U.S. 300, 307, 39 S. Ct.
465, 468 (1919). Although the antitrust laws recognize a broad right of freedom in
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dealing, the right is not unqualified. Lorain Journal Co. v. U.S., 342 U.S. 143, 155, 72
S. Ct. 181, 187 (1951). In Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S.
585, 105 S. Ct. 2847 (1985), the Supreme Court affirmed a jury verdict that the owner
and operator of three of four mountains in Aspen had monopolized the skiing market
by refusing to continue dealing with the fourth mountain so that skiers could purchase
a single skiing ticket package providing access to all four mountains.
However, “Aspen Skiing is at or near the outer boundary of § 2 liability.”
Verizon Commc’ns., Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 409, 124
S. Ct. 872, 879 (2004) (“Trinko”). Indeed, the Eleventh Circuit has recognized that
“[t]wo theories exist upon which to predicate a unilateral refusal to deal claim: (1) the
intent test and (2) the essential facility test.” Morris Commc’ns. Corp. v. PGA Tour,
Inc., 364 F.3d 1288, 1294 (11th Cir. 2004) (citing Mid-Texas Commc’ns. Sys., Inc. v.
AT&T, 615 F.2d 1372, 1387 n. 12 (5th Cir. 1980)).11 The essential facility test has been
In its brief, Clark contends only that Elmwood is an essential facility. Thus, the Court need
not consider the “intent test.” See Coal. for the Abolition of Marijuna Prohibition v. City of Atlanta,
219 F.3d 1301, 1326 (11th Cir. 2000) (“[F]ailure to brief and argue [an] issue during the proceedings
before the district court is grounds for finding that the issue has been abandoned.”) Under this test,
a monopolist may be liable for refusing to deal if it cannot present valid justifications for its actions.
Mid-Texas Communications Systems, Inc. v. Am. Tel. & Tel. Co., 615 F.2d 1372, 1388 (5th Cir. 1980).
However, as the Court noted extensively in its discussion of monopoly power and the tying claim
above, Clark has failed to allege sufficient facts to suggest that the Defendants even possess market
power in a relevant tying market. Thus, they are not a “monopolist,” either. See Eastman Kodak, 504
U.S. at 481, 112 S. Ct. at 2090 (stating that monopoly power requires something greater than market
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recognized in various circuit courts, but it has not been recognized in the Supreme
Court. Trinko, 540 U.S. at 410-411, 124 S. Ct. at 880-881.
The Eleventh Circuit has recognized a limited version of the essential facilities
doctrine where “a company that has exclusive control over a facility essential to
effective competition may not deny potential competitors access to that facility on
reasonable terms and conditions if to do so would create or maintain monopoly power
in the relevant market.” Morris Communications Corp., 364 F.3d at 1294.12 At a
minimum, there must be both an “essential facility” and a denial of access to that
facility. See Trinko, 540 U.S. at 411, 124 S. Ct. at 881 (noting that if such a doctrine
exists, there must be a denial of access to an essential facility).
Clark has pleaded that Elmwood is a large cemetery located in Birmingham, but
it has not pleaded facts to suggest that it is actually essential to competing in the
installation or sale of memorials markets in the Birmingham area. In order for a facility
In its brief, Clark’s counsel directs the Court to a four-part “essential facilities” test, citing
Consol. Gas Co. v. City Gas Co., 665 F. Supp. 1493, 1533 (S.D. Fla. 1987). (Doc. 13 at 16.) They
further indicate that this decision was affirmed, citing Consol. Gas Co. of Fla., Inc. v. City Gas Co. of
Fla., 912 F.2d 1262 (1990). (Id.) However, Plaintiff’s counsel neglected to inform the Court that the
Eleventh Circuit opinion was subsequently vacated by the Supreme Court, and the District Court
opinion counsel cites was then vacated by the Eleventh Circuit. See City Gas. Co. of Fla. v. Consol.
Gas Co. Of Fla., Inc., 499 U.S. 915 (1991) (stating that “[t]he judgment is vacated and the case is
remanded to the United States Court of Appeals for the Eleventh Circuit with directions to
dismiss”), and Consol. Gas Co. of Fla., Inc. v. City Gas Co. of Fla., 931 F.2d 710 (11th Cir. 1991)
(ordering that “the Findings of Fact and Conclusions of Law entered on July 24, 1987, are vacated
and the cause is remanded with instructions to enter an order dismissing the case with prejudice”).
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to actually be “essential,” there must not be available alternatives. See U.S. v.
Terminal R.R. Assoc. of St. Louis, 224 U.S. 383, 397, 32 S. Ct. 507, 510-511 (1912) (“[I]t
is, as a practical matter, impossible for any railroad company to pass through, or even
enter St. Louis, so as to be within reach of its industries or commerce, without using
the facilities entirely controlled by the terminal company.”) Based on these facts,
Clark can continue to compete with the Defendants by offering to make and install its
memorials at other cemeteries in the Birmingham area. The complaint itself
establishes that SCI owns four cemeteries in Birmingham, and Clark has not alleged
that it was excluded from serving these cemeteries in either the design or installation
of memorials. Moreover, Clark has not pleaded that it is precluded from arranging to
manufacture and install memorials at other cemeteries in Birmingham owned by
entities other than SCI.
Thus, Clark’s unilateral refusal to deal claim also fails to establish the type of
anticompetitive conduct required to state a claim of either monopolization or
attempted monopolization. Since neither of Clark’s theories states a claim on which
relief can be granted, the antitrust claims are due to be dismissed.
State Law Claims
In addition to the federal antitrust claims, Clark also alleged violations of the
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Alabama Antitrust Act and several state law torts. The Defendants urge the Court to
dismiss these claims as well under Rule 12(b)(6). However, the Court must first
consider whether to exercise supplemental jurisdiction over these claims. See
Ardestani v. U.S. Dep’t of Justice, Immigration & Naturalization Serv., 904 F.2d 1505,
1515 (11th Cir. 1990) (noting that district courts must dismiss claims when it lacks
subject matter jurisdiction). This case implicates the Court’s supplemental
jurisdiction, codified at 28 U.S.C. § 1367 (“§ 1367”). “The statute reflects a
dichotomy between a district court’s power to exercise supplemental jurisdiction, §
1367(a), and its discretion not to exercise such jurisdiction, § 1367(c).” Parker v. Scrap
Metal Processors, Inc., 468 F.3d 733, 742 (11th Cir. 2006).
Section 1367(a) authorizes supplemental jurisdiction when claims “form part
of the same case or controversy under Article III of the United States Constitution.”
28 U.S.C. § 1367(a). Claims are part of the same case or controversy if they “‘derive
from a common nucleus of operative fact.’” Upper Chattahoochee Riverkeeper Fund,
Inc. v. City of Atlanta, 701 F.3d 669, 679 (11th Cir. 2012) (quoting United Mine Workers
of Am. v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138 (1966)). The Court must “take
the nucleus of facts on which the federal question claims are based and compare it to
the nucleus of facts on which the state law claims are based.” Id. The claims here are
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generally part of the same case or controversy. The state and federal antitrust inquiries
are essentially identical. See Vandenberg v. Aramark Educ. Servs., Inc., 81 So. 3d 326,
333 (Ala. 2011) (noting that federal law on monopolization governs antitrust actions
under state law). Clark has used identical facts to attempt to state claims under both
state and federal antitrust laws. Moreover, the state law tort claims are also based on
the same common nucleus of facts—Clark has been prohibited from installing
memorials at Elmwood, and that has harmed its business.
However, this is the beginning, and not the end, of the inquiry. See Parker, 468
F.3d at 743. Under § 1367(c), the district courts may decline to exercise supplemental
jurisdiction over a state law claim if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original
(3) the district court has dismissed all claims over which it
has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). Any one of these grounds is reason to decline jurisdiction. Parker,
468 F.3d at 743. Here, the Court should dismiss all state claims for lack of
supplemental jurisdiction because it has dismissed all pending federal claims. Raney
v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004) (“We have encouraged
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district courts to dismiss any remaining state claims when, as here, the federal claims
have been dismissed prior to trial.”). The Court has the discretion to dismiss the
remaining state law claims when it has properly granted a Rule 12(b)(6) motion to
dismiss. Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1305 n. 2 (11th
Cir. 2009). Thus, the remaining state law claims are due to be dismissed as outside the
Court’s supplemental jurisdiction.
For the reasons discussed above, the Defendants’ motion to dismiss (Doc. 7)
is due to be granted, and all pending claims are due to be dismissed. The federal
antitrust claims are due to be dismissed for failure to state a plausible claim for relief
under Rule 12(b)(6), and the Court will decline to exercise supplemental jurisdiction
over the pending state law claims.
A separate order will be entered.
Done this 14th day of January 2014.
L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
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