there is no evidence that these incidents were part of an underlying conspiracy rather than independent action. Evidence that three of the Funeral Directors made these comments to two of the Park's employees does not support the plaintiffs' section 1 claim.
The plaintiffs have offered no evidence to support their claims that the defendants attempted to interfere with the Park's customers. The Court's independent review of the deposition testimony on record revealed only allegations by the Waychoffs that on several occasions customers that had intended to purchase casket or vaults from the park changed their minds after speaking with the Funeral Directors. J. Waychoff Deposition at 145-51, 206; C. Waychoff Deposition at 274-75, 334. Again, this evidence is insufficient to establish a violation of section 1 of the Act because the plaintiffs have presented no evidence that these actions were part of a coordinated effort on the part of all the defendants to drive the Park out of business, or that they produced anti-competitive effects in the relevant market. Interference with contractual relations is a state law cause of action, not the basis for an antitrust claim.
The Greenlees' statement that the funeral directors were going to "do something" about the plaintiffs' caskets sales also fails to save the plaintiffs' section 1 claims from summary judgment. This alleged statement is a vague threat, but there is no evidence that the defendants acted on this threat in a concerted manner which unreasonably restrained trade.
In summary, the plaintiffs have failed to come forward with sufficient evidence in support of their claims that the defendants engaged in concerted, anti-competitive activity within the meaning of section 1 of the Sherman Antitrust Act. They seem to presume that because the defendants are members of a trade organization, and because some of them expressed their displeasure with plaintiffs' attempts to compete with them in casket sales, they have violated the Sherman Antitrust Act. All of the evidence the plaintiffs offer in support of their claims, however, does not constitute sufficient evidence of a section 1 violation to save the plaintiffs' claims from summary judgment.
C. Plaintiffs' State Law Claims
Because we are dismissing the plaintiffs' federal claims, the Court will dismiss the plaintiffs' remaining state claims for lack of jurisdiction.
V. PEGGY BEHM'S SUMMARY JUDGMENT MOTION
In her separate motion for summary judgment, defendant Peggy Behm argues that the plaintiffs have no evidence that she participated in any of the illegal acts alleged in the complaint. Ms. Behm testified at her deposition that she works at the Behm Funeral Home but takes no part in the operation of the business. In addition, she contends she is not a licensed funeral director, and has never attended any meetings of the various funeral director associations of which her husband is a member.
Plaintiffs' original response to Ms. Behm's motion consisted of one footnote in their response to the defendants' motion for summary judgment. In this footnote, the plaintiffs state that Peggy Behm "attended at least one meeting where the Park was discussed with third persons." And that she is "in partnership with Frank Behm as to rentals of funeral equipment to Behm Funeral Home, Behm Leasing & Rental Company, and to that extent she is liable for his actions." Plaintiff's Memorandum in Opposition to Defendants' Motions for Summary Judgment at 1 n.2. The plaintiffs also allege in this footnote that Peggy Behm is a partner in Greene County Burial Vault Co. and therefore has personally gained from the "unlawful conspiracy at issue." Id.
Perplexed that plaintiffs felt that a footnote was a sufficient response to Peggy Behm's separate summary judgment motion, we ordered them to file a separate response addressing the points raised by Ms. Behm. The plaintiffs filed their response but failed to explain with any greater degree of clarity why Peggy Behm should be liable for any of the acts alleged in the complaint. The plaintiffs simply stated that Peggy Behm's partnership and shareholder interests in the Behm entities create a "presumption of involvement in the conspiracies of her husband and Behm Funeral Home, Inc." Id. at 5. The plaintiffs have provided no support for their contention that Peggy Behm attended "at least one meeting where the Park was discussed with third persons."
Since neither Behm Leasing & Rental Co., nor Greene County Burial Vault Co. are defendants in this action, and since the plaintiffs have failed to explain why Peggy Behm should be liable for the actions of defendant Behm Funeral Home, Inc. simply because she holds stock in that corporation, we will grant Peggy Behm's summary judgment motion.
All outstanding motions not addressed by this opinion are moot. An appropriate Order will be issued.
Maurice B. Cohill, Jr.
AND NOW, to-wit, this 7th day of July, 1992, it is ORDERED, ADJUDGED and DECREED that the plaintiffs' Motion for partial Summary Judgment is DENIED and the defendants' Motion for Summary Judgment is hereby GRANTED. It is further ORDERED that defendant Peggy Behm's Motion for Summary Judgment is hereby GRANTED. All other outstanding motions not addressed by this Order are moot.
Maurice B. Cohill, Jr.
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