The opinion of the court was delivered by: BOLDT
In this action plaintiff Kalin seeks recovery from defendants Fultz, Mills and Selene and Eros (S & E) for treble damages per Section 7 of the Clayton Act for alleged violation of Section 1 of the Sherman Act. Plaintiff alleges defendants have conspired among themselves and with others to monopolize mortuary business, i.e., preparation of the bodies of deceased persons for the purposes of funeral, burial or cremation, within Thurston County in the State of Washington. Plaintiff also alleges defendants have conspired to boycott plaintiff from participation in a rotation system whereby Fultz, Thurston County Coroner, in lieu of a County Morgue, rotates dead bodies that come within his jurisdiction between Mills and S & E for retention until mortician services are provided by the next of kin, or, in default thereof, pursuant to state statute.
Defendants deny jurisdiction in this court to hear and determine plaintiff's claims under the Sherman Act and on that ground have filed motions for summary judgment of dismissal.
Summary judgment may not be granted when any party either has not had a full and fair opportunity for complete discovery or where any genuine issue of a material fact is presented. Therefore, all parties, and particularly plaintiff, have been given every opportunity over a period of many months for discovery and presentation of written and oral argument on the defendants' motions. A final pretrial order has been entered as to jurisdiction and liability issues. Also, counsel have certified that discovery as to facts pertaining to jurisdiction has been fully completed and exhausted by all parties.
The court has fully examined and considered defendants' motions, all contentions of plaintiff and defendants pertaining thereto and all depositions, affidavits, memoranda and authorities cited therein.
Plaintiff's allegations of fact, which it contends support federal jurisdiction or, at a minimum, raise issues of fact for determination by jury, are stated under "Plaintiff's Contentions on Disputed Facts," beginning on page 13, of the Pre Trial Order. The allegations are summarized as follows: that plaintiff and defendants perform mortician services upon dead bodies that have come from outside the state or are shipped outside the state after such services are performed; that plaintiff and defendants regularly purchase mortuary supplies, including caskets, embalming fluid, equipment and other items from sources outside the state; that materials used in making caskets in this state come from outside the state; and that morticians in this state regularly and frequently conduct business correspondence by letter, telephone and telegram with persons outside the state.
Defendants contend the alleged activities complained of are wholly intrastate and local in nature and have no direct and substantial effect upon interstate commerce so as to bring them within the purview of the Sherman Act.
In considering all of the principal authorities (citations in footnote 1), two decisions of the Eighth Circuit Court of Appeals are most comparable in facts to the present case: Elizabeth Hospital v. Richardson, supra, and Riggall v. Washington County Medical Society, 249 F.2d 266 (1957), cert. den. 355 U.S. 954, 78 S. Ct. 540, 2 L. Ed. 2d 530 (1958), cited in Elizabeth. Plaintiff contends Washington State Bowling v. Pacific Lanes impairs the holding of Elizabeth, although Shepard's discloses no decision to that effect. Analysis of the opinion in that case shows it does not directly or indirectly hold the principles of Elizabeth inapplicable to the particular facts and circumstances of the present case. Elizabeth is not referred to in the Bowling opinion.
In Elizabeth the Eighth Circuit said:
"We think that the plaintiff's operation of a hospital, to include rendition of hospital services to some persons who came from outside the state, is no more engaging in interstate commerce than was Dr. Riggall in rendering medical services to persons who likewise came from other states. The fact that some of the plaintiff's patients might travel in interstate commerce does not alter the local character of plaintiff's hospital. If the converse were true, every country store that obtains its goods from or serves customers residing outside the state would be selling in interstate commerce. Uniformly, the Courts have held to the contrary." (At page 170)
In Riggall the Court stated:
"As has been observed, plaintiff's complaint in substance is that the practice of his profession would have been more profitable to him had the defendants not deprived him of membership in the Washington County Medical Society. Plaintiff was not prevented from practicing his profession and the complaint, we think, is wholly lacking in ...