442 F2d 1342 John Kalin Funeral Home Inc v. Fultz

442 F.2d 1342

JOHN KALIN FUNERAL HOME, INC., d/b/a Lacey Funeral Home, a corporation, Appellant,
Hollis FULTZ et al., Appellees.

No. 26343.

United States Court of Appeals, Ninth Circuit.

May 28, 1971.

Appeal from the United States District Court, Western District of Washington; George H. Boldt, Judge.

George K. Faler (argued), Seattle, Wash., Maxwell Keith, San Francisco, Cal., for appellant.

Vincent Gadbow (argued), Erick R. Alden, of Davies, Pearson, Anderson & Gadbow, Tacoma, Wash., Ralph G. Swanson, Gerry Alexander, William L. Parr, Ralph R. Gilby, Olympia, Wash., for appellees.

Before JERTBERG, ELY and KILKENNY, Circuit Judges.


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Appellant's action for treble damages under the Sherman Anti-trust Act, 15 U.S.C. §§ 1 and 2, was dismissed by the trial court on a motion for summary judgment. 313 F.Supp. 435. It appeals. We affirm.


A careful examination of the record convinces us that the fundamental issue in this case cannot be distinguished from the one before the court in Sun Valley Disposal Co. v. Silver State Disposal Co., 420 F.2d 341, 343 (9th Cir. 1969) where, on facts highly similar to those in the instant case, the question was resolved against the appellant. We hold that Sun Valley is here controlling on this issue.


Cathay Mortuary Wah Sang v. Funeral Directors of San Francisco, Inc., 1965 Trade Cases, Para. 71,505 (N.D.Cal. 1965), a district court decision relied on by appellant, is entitled to consideration, but is distinguishable in at least two important respects. There, plaintiff alleged that: (1) defendants deprived plaintiff of membership in a national association of funeral directors, thereby depriving it of the opportunity to make purchases of caskets and other funeral merchandise at national conventions at substantially lower prices; and (2) loss of membership in the national association divested plaintiff of the right to be listed in the national directory used to make contracts with out-of-state funeral directors for the interstate removal and shipment of bodies. Neither of these charges is made against appellees in the case before us.