Full opinion text
MEMORANDUM OPINION DAVIDSON, District Judge. James William Pope, Sr. and Mary Ann Pope (“Popes", “plaintiffs” or “non-movants”) have brought this action against both private and government defendants claiming violations of both federal and state law. The plaintiffs’ claims against the private defendants include federal antitrust violations and the following state law claims: state antitrust violations; interference with economic relations, business relations, and business contacts in violation of state laws; and libel, slander, and defamation. Plaintiffs’ claims against the government defendants include federal antitrust claims and violations of the First Amendment, due process clause, and equal protection clause, as well as state law claims which include state antitrust violations; interference with economic relations, business relations, and business contacts violations; libel, slander and defamation; violation of the public record statute; and violation of separation of powers requirement of the Mississippi Constitution. The government and private defendants have separately moved for summary judgment. The government and private defendants have shown the absence of material issues of fact and argue that they are entitled to judgment as a matter of law. The plaintiffs responded by amending their complaint and providing a brief, an affidavit, and several depositions in opposition to both motions for summary judgment. The court has reviewed the extensive evidentiary record, the plaintiffs’ pleadings and brief, the defendants’ pleadings and numerous briefs in support of their motions for summary judgment, and has carefully considered the record as a whole. The court has gone to great lengths to consider each claim of the plaintiffs and the evidence presented by the plaintiffs in support of their claims. The court is now convinced that the record in the case sub judice justifies the granting of the motions for summary judgment, even though the court recognizes that a full blown trial will often serve a useful purpose in such a complex action. The plaintiffs fail to set forth sufficient evidence to establish a genuine issue of material fact and the court accordingly finds that the defendants are entitled to judgment as a matter of law. Factual Background A. Plaintiffs’ Allegations The Popes are engaged in the real estate business in Amory, Mississippi which is located in Monroe County. The plaintiffs allege that they began work in the real estate business in 1978 after they obtained broker’s licenses from the Mississippi, Real Estate Commission (“MREC”). The plaintiffs maintain that they have set their own sales commission rates and have refused to abide by price fixing and other anti-competitive practices which have been utilized by the defendants. To be more specific, plaintiffs allege that certain of the local private defendants have denied the plaintiffs access to the multiple listing service which lists property available for sale in Monroe County, Mississippi. Plaintiffs also allege that the other private defendants are jointly liable for these alleged antitrust violations because they encouraged, enticed, and joined in this activity through their constitutions and by-laws. The plaintiffs allege that the local private defendants who are realtors have engaged in a group boycott of the plaintiffs by collectively refusing to permit the plaintiffs to show property listed by the defendants, or by placing unfair restrictions on such showing. The plaintiffs further allege that this activity impacts interstate commerce and has an anti-competitive effect on the business of buying and selling real estate in Monroe County. Plaintiffs allege that government and private defendants have utilized the complaint procedures of the MREC to punish the plaintiffs for competitively engaging in the real estate business. The plaintiffs allege that the defendants have unreasonably restrained trade by placing arbitrary limitations on the use of the term “realtor”. Plaintiffs allege that unnamed defendants have prohibited plaintiffs from discussing employment of salesmen employed by other agencies and prohibited plaintiffs from bringing real estate courses to the Amory area. Plaintiffs allege that Jack Francis and Phil Roberts have sold insurance and listed property by unlawful “tying arrangements.” In Count II, the plaintiffs allege that the government defendants have violated the plaintiffs’ First Amendment rights as follows: the defendants have purported to punish the plaintiffs for engaging in business advertising; the defendants have purported to punish the plaintiffs for advertising real estate schools and encouraging persons to attend; the defendants have punished the plaintiffs for advertising the giving of vacuum cleaners to past customers; the defendants have punished the plaintiffs for giving away tee shirts and the defendants have prohibited the plaintiffs from using the term “realtor”. In Count III, the plaintiffs allege that the government defendants have violated the due process clause as follows: defendants failed to provide plaintiffs with notice of charges and a fair and impartial hearing on charges brought before that governing body; defendant MREC is both prosecutor and judge and had ex parte communications concerning the hearing; defendants have found the plaintiffs guilty of ethical violations without a hearing; and the defendants allegedly communicated the resulting decision to the public in violation of the plaintiffs’ “liberty interest”. In Count IV, the plaintiffs allege that the government defendants violated the equal protection clause by arbitrarily enforcing certain ethical regulations. In Count V, plaintiffs allege that all of the defendants have violated state law by interfering with the plaintiffs’ rights to engage in business. In Count VI, the plaintiffs allege that private defendants Hardwick and Murphy libeled, defamed, and slandered the plaintiffs causing untrue articles to be placed in the Aberdeen Examiner. Similar claims were made against government defendant Vann. In Count VII, the plaintiffs allege that the government defendants have refused to disclose various information as required by Mississippi law. In Count VIII, the plaintiffs allege that the government defendants are in violation of the Mississippi Constitution because they combined the functions of judicial, legislative, and executive branches in one entity- In Count IX, the plaintiffs allege that the government defendants have retaliated against the plaintiffs in violation of the First Amendment because of an earlier antitrust case brought by Century 21. B. Defendants’ Summary Judgment Motions The private defendants moved for summary judgment on all claims brought against the private defendants. The private defendants supported their motion with a 76 page memorandum brief, a 31 page reply brief, an 11 page supplemental memorandum, attached authorities, exhibits, depositions, and affidavits. These documents attack the plaintiffs’ complaint count by count in an attempt to show the court the absence of a genuine issue of material fact that would preclude a grant of summary judgment. At this point, the court will simply outline the points raised by the private defendants. In response to Count I, the defendants concede that they have denied plaintiffs participation in the multiple listing service (“MLS”) but they state that this is only because the plaintiffs have voluntarily withdrawn from participation in the Monroe County Board of Realtors (“MCBR”). The private defendants maintain that it is appropriate and legal to limit services to members of a private organization as long as there is no arbitrary or discriminatory exelusion from membership in that organization. Defendants further assert that the plaintiffs have no standing to bring this action because they voluntarily withdrew from the board. As to the complaints filed with the MREC and the response of the MREC, the private defendants maintain that the Noerr — Pennington doctrine exempts their activities from the antitrust laws. The private defendants also assert that the plaintiffs have shown no evidence of a conspiracy to boycott the plaintiffs’ business. The private defendants did not challenge the First Amendment, (Count II), due process (Count III), equal protection (Count IV), public record statute (Count VII), separation of powers (Count VIII), or the unlawful retaliation (Count IX) claims. The private defendants did challenge the claims which were directed at them. As to the pendent state claims which relate to the non-government defendants, they have attempted to show that there is no factual basis for Counts V or VI which involve interference with business relations, libel, defamation, and other such claims. The government defendants have challenged all claims brought against them. The government defendants supported their motion for summary judgment with a 39 page brief, an 11 page reply brief, exhibits, depositions, affidavits, and James Pope’s official file, and a transcript of a hearing at issue. The court will outline the points raised by the government defendants. As to Count I, the government defendants point out that the plaintiffs lack standing for a claim against the MREC because of the state action exemption to the Sherman Act. Government defendants also assert that the plaintiffs have failed to demonstrate that the alleged antitrust activity related to any inter-state commerce. Government defendants claim that the plaintiffs have not shown that the government defendants acted outside their official capacities or acted contrary to their legislatively mandated responsibilities, and that the plaintiffs have not established the existence of any trusts, combinations, contracts, or agreements with other persons in violation of the antitrust laws. The government defendants claim that the due process, equal protection and First Amendment claims brought against the government defendants, apparently brought pursuant to 42 U.S.C. § 1983, may not be brought against the MREC itself because of Eleventh Amendment immunity and that the other government defendants have qualified immunity or a good faith immunity defense to each of these claims. As to the substance of the due process claim, the government defendants maintain that the official procedures and the procedures actually implemented assured the plaintiffs of their due process rights. As to the substance of the equal protection claims, the government defendants claim that the plaintiffs have not shown arbitrary enforcement of regulations or any intentional or purposeful discrimination in its investigation of complaints. As to the substance of the First Amendment claims, the government defendants maintain that they were preventing misrepresentations in advertising and avoided taking actions that inhibited true freedom of speech. As to the plaintiffs’ First Amendment and retaliation claim of Count IX, the government defendants assert that there was no factual showing that there was any connection between the unrelated case and the alleged actions of the MREC. The government defendants’ response to the pendent state law claims is to suggest that the court should simply dismiss these claims from federal court. The government defendants then set out sovereign immunity and public official immunity defenses. As to the libel, slander, and defamation claim, the government defendants point out that privileged communications may not establish the plaintiffs’ claims. The government defendants apparently concede the dual investigative and judicial roles of the commission, but dispute the legal argument that this is a violation of Mississippi’s constitutional separate of powers requirement. As to the denial of public access to records claim, the government defendants maintain that these investigative materials were exempt, but that the defendants subsequently turned these records over to the plaintiffs, thereby eliminating this minor claim. C.Plaintiffs’ Argumentative and Evidentiary Responses The plaintiffs’ response to the summary judgment motions was minimal at best. Plaintiffs presented one brief in opposition, along with an affidavit from James Pope and part of the depositions of Kenneth Ammons, Phillip Hardwick, Jack Francis, Mary Lib Francis, Joyce B. Murphy, and Phillip E. Roberts. The 20 page brief submitted by the plaintiffs was very general and failed to address most of the issues raised by the government and private defendants in their motions for summary judgment. The only antitrust claims adequately addressed by the plaintiffs were the denial of access to the multiple listing service and price fixing by the private defendants. Plaintiffs claim a factual issue exists concerning some aspect of the group boycott claim. Plaintiffs boldly assert that the government defendants are not entitled to summary judgment. Plaintiffs claim that there is a factual issue as to the denial of liberty without due process of law and conclude that the government defendants are not entitled to summary judgment on either the First Amendment or due process issues. Plaintiffs also maintain that there are factual issues concerning the alleged violations of First Amendment rights. Plaintiffs failed to point out the pertinent parts of exhibits, depositions and affidavits which created these genuine issues of material fact claimed to exist. The court nonetheless closely reviewed the affidavit and depositions relied on by the plaintiffs, as well as the remaining court record. D. Defendants Reply The government and private defendants responded to the plaintiffs’ brief in a detailed manner. The private defendants claimed that the plaintiffs do not have standing to sue for price fixing and they have not shown sufficient evidence to support this claim. The private defendants also maintain that there are no material factual issues concerning the plaintiffs’ non-participation in the MLS. The government defendants assume that the plaintiffs have abandoned the many claims on which they failed to respond. The government defendants responded point by point to the due process, First Amendment, and separation of powers claims asserted by the plaintiffs in their brief. The private defendants presented a supplemental memorandum which again addressed the standing issue and the basis upon which associations may charge membership fees. E. Uncontested Facts The parties have set out 47 facts in the pretrial order that were established by the pleadings, stipulations, or admissions. The court will bring attention to the more pertinent facts contained in the pretrial order. The established facts that affect the antitrust claim include A-R, FF-W. Particularly important are the following: the MCBR membership requirements (F, GG, II); requirements for MLS participation (D, E, JJ); absence of evidence of price fixing (PP, UU); evidence refuting boycott claim and market effect (L, M, N, O, LL, W); and the use of term “Realtor” (II, QQ, RR). The established facts that affect the First Amendment claims include possible retaliation (K, U, X, Y), non-enforcement of the Code of Ethics (EE), and the existence of a federally registered trademark (RR). The established facts that affect the due process claims (P-DD) indicate the following: the MREC acted within the scope of its official duties (P, Q, R); the MREC acted pursuant to complaints (S,Y); the MREC gave notice (T,X); the MREC held hearings (Y, AA, DD); plaintiffs failed to appeal (W, BB); and the MREC did not publish the information which allegedly defamed the plaintiffs (CC). Conclusions of Law The plaintiffs have set forth a multitude of issues against both the government and private defendants based upon the factual situation outlined above. Both the government and private defendants have moved for summary judgment in this action. In this opinion, the court will address the standard to be applied to claims presented in a summary judgment posture and then will apply this standard to each of the claims brought against the defendants. I. Summary Judgment Standard Summary judgment re-enforces the purpose of the rules to achieve a “just, speedy, and inexpensive determination” of actions. Fed.R.Civ.P. 1. Summary judgment is no longer considered a “ ‘peculiar procedural short cut,’ but an integral part of the ‘framework’ of the Rules, closely related to other provisions which are similarly intended to permit the early elimination of claims and defenses that the proponents cannot support.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1197 (5th Cir.1986). Summary judgment has filled in the gaps left by the abandonment of other procedural devices and is the most efficient means of testing the sufficiency of factual allegations. Fontenot, 780 F.2d at 1196. “The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine heed for trial.” Fed.R.Civ.P. 56, advisory committee note on the 1963 amendments to rule 56(e) (quoted in Fontenot, 780 F.2d at 1196). A trial serves no useful purpose “[wjhen everything that can be adduced at trial is before the judge on motion and the parties, while urging conflicting ultimate facts and conclusions, have no evidentiary disputes.” The proper use of Rule 56 “affords a merciful end to litigation that would otherwise be lengthy and expensive. Fontenot, 780 F.2d at 1197. However, the court must be cautious and properly balance the need for expediency with the demands of justice. The court will not casually deny a party the protections inherent in a full blown trial. Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims or defenses have no factual basis. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265, 276 (1986). A. Movant’s Initial Responsibility The moving party must make a minimal showing of an absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. [A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. In Celotex, the Supreme Court distinguished the earlier decision of Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), and held that the moving party had only the burden “to show initially the absence of a genuine issue concerning any material fact.” The Supreme Court held that the Adickes language should not be construed to mean that the moving party has the burden to produce evidence that establishes the absence of a genuine issue of material fact. Instead, the Supreme Court held that the “burden on a moving party may be discharged by ‘showing’— that is pointing out to the district court— that there is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. at 2554, 91 L.Ed.2d at 275. The Supreme Court clearly held in Celotex that even where the movant’s showing was meager and failed to fully negate the opponent’s claims, summary judgment should still be granted where the evidence produced by the nonmovant was insufficient as to a necessary element of the claim on which the non-movant bore the burden of proof. B. Non-Movant’s Evidentiary Burden [2] Once the moving party has met its initial responsibility, the non-moving party must shoulder a heavy burden in order to survive summary judgment and bring its case to trial. The summary judgment scheme provides for a shifting burden between the movant and non-movant as to the existence of genuine issues of material fact. The movant must initially “show” the absence of material issues of fact and then the non-movant has the burden to “go forward” with sufficient evidence to establish the existence of material issues of fact. Aladdin Oil Co. v. Texaco, Inc., 603 F.2d 1107, 1112 (5th Cir.1979). Rule 56(e) provides in pertinent part that: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. (emphasis added). The Supreme Court has stated that the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986). The Supreme Court followed this statement with the observation that Rule 56(d) requires “specific facts” from the non-movant and then stated that if the non-movant’s claim appeared implausible the nonmovant must come forward with even more persuasive evidence to support the claim than would otherwise be necessary. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356, 89 L.Ed. at 552. Celotex also held that Rule 56 requires the opposing party to go beyond the pleadings to make a sufficient showing on the essential elements of its case. Celotex, 477 U.S. at 321, 106 S.Ct. at 2553, 91 L.Ed.2d at 273. The party with the burden of proof must respond to motions for summary judgment with sufficient evidence to support its prima facie case. “The party opposing a motion supported by affidavits cannot discharge his burden by alleging legal conclusions. There is no sound reason why conclusory allegations should suffice to require a trial when there is no evidence to support them even if the movant lacks contrary evidence.” Fontenot, 780 F.2d at 1195-1196. Although the court does not assess the probative value of the material presented, evidence in opposition to the motion that clearly is without any probative force is insufficient to raise a genuine issue. First National Bank of Arizona v. Cities Services Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569, 593 (1968). Denials or allegations by the non-moving party in the form of legal conclusions, which are unsupported by specific facts have no probative value and are thus insufficient to create genuine issues of material fact that would preclude summary judgment. Broadway v. City of Montgomery, Alabama, 530 F.2d 657, 660 (5th Cir.1976); see also Benton-Volvo-Metairie, Inc. v. Volvo Southwest, Inc., 479 F.2d 135, 139 (5th Cir.1973). “Allegations that one ‘might could’ show certain facts at trial are simply insufficient under Rule 56(e).” Pelotto v. L & N Towing Co., 604 F.2d 396, 403 (5th Cir.1979). The non-moving party cannot successfully defeat a summary judgment motion by unsworn statements or the suggestion that proof might be forthcoming at trial. See Oglesby v. Terminal Transport Co., Inc., 543 F.2d 1111, 1112 (5th Cir.1976). C. The Court’s Duty and the Summary Judgment Standard Rule 56 expressly provides that the court should grant summary judgment if (1) there is no genuine issue as to any material fact and (2) the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must first examine the evidentiary record to determine if a genuine issue of material fact exists. “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202, 213 (1986). The court is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” The Supreme Court has repeatedly indicated that “there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249, 106 S.Ct. at 2511, 91 L.Ed.2d at 212. Summary judgment should be granted if the evidence is “merely colorable or is not significantly probative.” Anderson, 477 U.S. at 249, 106 S.Ct. at 2510, 91 L.Ed. 2d at 212. The Supreme Court has repeatedly emphasized that the availability of summary judgment turns in part on whether a proper jury question is presented. The non-moving party need not conclusively establish its factual allegations, but it is required to provide sufficient evidence on the claimed factual dispute to require a jury or judge to resolve the party’s differing versions of the truth at trial. Anderson, at 249, 106 S.Ct. at 2510, 91 L.Ed.2d at 212. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356, 89 L.Ed.2d at 552. [I]f there is ‘a complete absence of probative facts’ to support a particular inference, or, if ‘the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at [but one] verdict,’ ‘the court may bypass the jury.’ Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir.1978) (citations omitted). The court must also determine if the factual issues in dispute are material. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, 91 L.Ed.2d at 211; Celotex, 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed. 2d at 273. After determining that there are no genuine issues of material fact, the court must determine whether the moving party is entitled to judgment as a matter of law. The standard to be applied in granting summary judgment is the same standard applied in granting directed verdicts under Fed.R. Civ.P. 50(a). The court “must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250, 106 S.Ct. at 2511, 91 L.Ed.2d at 213. Summary judgment motions should be granted “so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c) is satisfied.” Celotex, 477 U.S. at 321, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of the element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to judgment as a matter of law’ because the non-moving party has failed to make a sufficient showing on an essentia] element of her case with respect to which she has the burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553, 91 L.Ed.2d at 273. The non-movant is not entitled to a full dress trial notwithstanding the absence of any significant probative evidence tending to support the allegations in their complaint. “To permit the pleadings themselves to carry a case to trial when they rest only on the invention of counsel would permit ultimate circumvention of [the Federal Rules of Civil Procedure].” Fontenot, 780 F.2d at 1196. D. Summary Judgment Applied to AntiTrust Litigation The Supreme Court has recently considered the standard which district courts should apply when deciding whether to grant summary judgment in antitrust cases. These decisions have signaled a marked change from the court's prior reluctance to grant summary judgment, as established in Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). The Supreme Court has held that the requirements of Rule 56 are not to be read out of antitrust cases and has refused to hold that “anyone who files an antitrust complaint setting forth a valid cause of action [is thereby automatically] entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint.” Cities Services, 391 U.S. at 290, 88 S.Ct. at 1593, 20 L.Ed.2d at 593. Subsequent Supreme Court cases, as well as Fifth Circuit decisions, have followed the admonishment of Cities Services and have granted summary judgment motions in cases where the plaintiffs have utterly failed to adduce any evidence of conspiratorial conduct. The Supreme Court has, in a summary judgment context, addressed the issue of the conspiracy elements in antitrust litigation on two recent occasions. Conduct which is as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1470, 79 L.Ed.2d 775, 785-786 (1984). The Supreme Court stated that a plaintiff seeking damages for antitrust violations must present evidence “that tends to exclude the possibility” that the alleged conspirators acted independently. Monsanto, 465 U.S. at 764, 104 S.Ct. at 1471, 79 L.Ed.2d at 785. “Respondents in this case, in other words, must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action that could not have harmed respondents.” Matsushita, 475 U.S. at 588, 106 S.Ct. at 1357, 89 L.Ed.2d at 553. The Fifth Circuit has clearly held that summary judgment may be appropriate in antitrust cases. Although summary judgment procedures ‘should be used sparingly in complex antitrust litigation where motive and intent play leading rolls,’ summary judment may be granted where plaintiff can aver no significant probative facts in support of its conclusory allegations of conspiracy against defendants’ specific averments to the contrary. Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d 1017, 1027 (5th Cir.1983). (citations omitted) The court is most persuaded by the reasoning of Apex Oil Co. v. DiMauro, 641 F.Supp. 1246 (S.D.N.Y.1986). The Apex court granted summary judgment against the antitrust plaintiff who claimed that he was the victim of a conspiracy among his competitors. The court recognized that Matsushita, Monsanto, and Cities Service made summary judgment available in the context of large complex antitrust conspiracy cases. “In fact, the authorities indicate that the nature of such a case demands that the district court, in considering summary judgment, give searching scrutiny to the inferences available from the typically ambiguous mass of evidence.” Apex, at 1255. The Apex court reasoned as follows: In Matsushita, the Supreme Court made it clear that in an antitrust conspiracy case ambiguous evidence is to be treated skeptically on a motion for summary judgment, since an inference of unlawful conduct which arises only from ambiguous evidence will be of no use to the plaintiff at trial. In Monsanto, the court warned that a standard which permitted trial on the basis of such inferences presented a “considerable danger” that pro-competitive conduct would be discouraged. The test enunciated in Matsushita also dictates that ambiguous evidence, because it is by definition incapable of a dominant inference, will not alone defeat a motion for summary judgment. In this case, defendant’s sworn denials are more than sufficient to shift the burden to plaintiff under Fed.R.Civ.P. 56(e). Thus, to survive defendants’ motion for summary judgment, [the plaintiff] must establish that there is a genuine issue of material fact as to whether defendants entered into a conspiracy. To make such a showing, [the plaintiff] must offer significant probative evidence which tends to exclude the possibility that the alleged conspirators acted independently. Apex, at 1257 (citations omitted). The Apex court recognized that “[t]he sheer volume and desultory organization of the facts presented makes dissection of [the plaintiffs] evidence an unenviable task, but it is an effort mandated by Matsushita” It must be remembered throughout this exercise that an assumption of conspiracy is not the starting point after which each event must be explained away by the defendants. Rather, it is [the plaintiffs], now faced with unequivocable sworn denials, that must demonstrate that the evidence, construed in its favor, supplies an inference of conspiracy that is reasonable in light of any competing inference of independent conduct proffered by the defendants. Apex, at 1259. The record in the case sub judice is also large and difficult, but the court must perform its duty under the applicable law. II. Substantive Antitrust Claims Against Defendants The court will address each of the plaintiffs’ claims against the defendants. The court will address these claims in the order that they appear in the plaintiffs’ amended complaint. Count I of the plaintiffs’ amended complaint alleges antitrust violations against both the government and non-government defendants. The court will first look at the nature of the legal claim, then detail the defendants’ summary judgment challenges to this claim, and then finally analyze the plaintiffs’ response of either making a legal argument or establishing specific evidence sufficient to create a genuine issue of material fact. After these steps are complete, the court will determine whether summary judgment is appropriate on that claim for the defendants or whether the plaintiffs have made a sufficient showing to preclude summary judgment. A. Denial of Access Claim The first claim under Count I is that the private defendants have denied the plaintiffs access to the multiple listing service in violation of antitrust laws. The plaintiffs allege that the National Association of Realtors, Inc. (“NAR”) and the Mississippi Association of Realtors, Inc. (“MAR”) should be held jointly liable for this antitrust violation because they have encouraged and enticed this behavior through their constitutions and by-laws. 1. No Denial of Board Membership The private defendants responded to this claim by showing the court that the plaintiffs were not denied membership in the Monroe County Board of Realtors (“MCBR” or “Board of Realtors”), that the Popes voluntarily withdrew and are free to rejoin the Board of Realtors, and that membership in the Board of Realtors is nondiscriminatory. The private defendants argue that the MCBR may condition participation in the MLS upon membership in the MCBR without violating the federal antitrust laws. The private defendants assert that the plaintiffs voluntarily withdrew from the Monroe County Board of Realtors and would again qualify for membership if they paid the required membership fees. The private defendants point out that Pope admitted in his deposition that he has no reason to believe that he fails to satisfy membership criteria. The Popes unilaterally decided to leave the Monroe County Board of Realtors in 1981 over a dispute regarding dues assessments and their failure to be appointed to leadership positions within the Board of Realtors. The parties have stipulated that the MCBR policy is that only members of the Monroe County Board of Realtors may participate in the multiple listing service. The plaintiffs have not created an issue of material fact as to the availability of membership on the Board of Realtors for the Popes. Based upon the record before the court and the complete failure of the plaintiffs to provide sufficient evidence to support their position, the court finds that a genuine issue of material fact is absent concerning the Popes access to the Monroe County Board of Realtors. 2. Membership Requirements Satisfy Rule of Reason The Fifth Circuit has held that a concerted denial of access to a multiple listing service, when board members have agreed to pool and share their listings, amounts to a group boycott of the non-member. Realty Multi-List, 629 F.2d at 1361. However, in the case sub judice, the plaintiffs have failed to establish sufficient evidence that they were in fact denied participation in the multiple listing service. The plaintiffs are not in a good position to argue that the membership requirements of the MCBR are unreasonable or discriminatory. The plaintiffs have failed to establish that they would be excluded from board membership or denied participation in the multiple listing service if they were willing to pay membership dues assessments. The court’s inquiry is whether membership on the Board of Realtors is available to the Popes on a non-discriminatory basis. The defendants argue that the plaintiffs have in essence conceded this issue by voluntarily withdrawing from the board and that the membership criteria are entirely fair and reasonable, including the pro rata dues formula. In response, the plaintiffs claim that they were “forced out” of membership and did not voluntarily withdraw. Pope concluded that the pro-rata membership dues were intended to exclude him from membership and were discriminatory. Conclusory statements, even those in the form of an affidavit, do not satisfy rule 56’s requirement of specific facts. The plaintiffs have not shown that they were “forced out” in a discriminatory manner or that the dues formula is discriminatory. The court should apply the “rule of reason” in determining whether an antitrust violation occurred by virtue of MCBR requirements. “Per se” treatment is not proper in such a situation. See Realty Multi-List, 629 F.2d at 1362. Price fixing and other antitrust violations are treated as per se illegal, but non-price restrictions are judged under the “rule of reason”. The “rule of reason” analysis requires a “weighing of the relevant circumstances of a case to decide whether a restrictive practice constitutes an unreasonable restraint on competition.” Monsanto, 465 U.S. at 761, 104 S.Ct. at 1469, 79 L.Ed.2d at 784. In Realty Multi-List, the Fifth Circuit found that the challenged membership criteria of a favorable credit report and a favorable business reputation were antitrust violations under the rule of reason. See Realty Multi-List, 629 F.2d at 1376-1381. Realty Multi-List also held that a stock purchase requirement and sizeable membership fee were financial barriers that had such anti-competitive potential that they should be held unreasonable. Realty Multi-List, 629 F.2d at 1386. However, membership criteria which are reasonably necessary and narrowly tailored toward a valid interest may be justified in competitive terms and satisfy the rule of reason. “[T]he fact finder weighs all of the circumstances of a case in determining whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.” Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568, 580 (1977). The Supreme Court noted a popular statement of the rule of reason using the words of Justice Brandéis as follows: The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition, or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its conditions before and after the restraint was imposed; the nature of the restraint, and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation, or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences. Chicago Bd. of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 243, 62 L.Ed. 683, 687 (1918). Realty Multi-List recognized that “brokers may require some insurance that they will not be endangered legally or ethically by brokers with whom they enter a listing —sharing agreement____ Membership criteria reasonably necessary to insure this protection, and narrowly tailored to this end, may thus be justified in competitive terms and able to survive at least facial review.” Realty Multi-List, 629 F.2d at 1377. Pope admits that he has no reason to believe that he would be denied membership, thus, any claim of denial on a discriminatory basis is severely diminished. This indicates to the court that the plaintiffs do not have a sufficient evidentiary basis under Rule 56 for their claim of discriminatory exclusion from membership. It is undisputed that the Popes would be allowed board membership and that they meet all membership requirements. The plaintiffs claim that, even though they could become members of the MCBR, they are still discriminated against because of the dues formula used by the board. The plaintiffs’ basic claim is that because of the large size of their realty organization, they bear a heavy burden under the dues formula. The Board of Realtors decided to charge a certain fee for each realtor member and also for each realtor associate member and sales person instead of charging one set fee for each realty organization. Pope claimed that this was an attempt to discriminate against him and that “the economic burden was being shifted to my shoulders alone” and was being done to exclude him from membership. Pope’s conclusory opinion is insufficient to satisfy Rule 56’s requirements of specific facts and sufficient evidence. Realty Multi-List addressed the issue of whether membership fees could be considered a barrier to membership in a private realty organization. Noting that RML has established no objective criteria for determining a reasonable purchase price [for the stock required to be a RML member], the Government argues that this rule is invalid on the theory that, in cases such as this one, the unrestricted power to set an entrance fee which is unrelated to either the cost of the service provided or the cost of maintaining the service as a going concern is the power to exclude, and hence to destroy competition. We agree. Doubtlessly, RML must be allowed to establish fee schedules which allow it to recoup its costs of operation and to maintain its viability as a going concern. Among these costs which it must be allowed to recover are the start-up costs involved in serving a new member. In addition, it is reasonable to assess a new member a pro-rata contribution toward the maintenance and the development of RML, including the accumulation of reasonable reserves. To require more than this, however, is to create problems. A sizeable membership fee which bears no relation to the cost factors outlined above may not only create a significant barrier to new entry into the association, but may create “a strong inference that the amount has been set up as a barrier against” new applications. Realty Multi-List, 629 F.2d at 1385-1386. Private organizations often charge membership fees on a pro-rata basis. This practice distributes the organizations’ expenses among all persons who receive either direct or indirect benefits of the organization. Both NAR and MAR assess dues to benefits of the organization. Both NAR and MAR assess dues to member boards of realtors, such as the MCBR, based upon the number of persons who benefit from the national and state associations. Each realtor, realtor associate who belongs to the local board, and salesperson licensee affiliated with the realtor’s firm, who is not even a member of the board of realtors, increases the liability of the member boards. The dues formula chosen by the local board of realtors is reasonable given their own dues requirements from the state and national organization and the nature of their local expenses. The plaintiffs have failed to produce probative evidence sufficient to establish that the dues formula was unreasonable or discriminatory. The plaintiffs have asserted that the local dues formula did change during this period, but this fails to establish evidence that the dues were unreasonable and it is uncontested that both the NAR and MAR dues formulae were adopted in their current form in 1972. The MCBR’s membership dues formula charged real estate firms an amount based upon their actual size as measured by the number of realtors and sales people with a realtor’s firm. The plaintiffs have not established sufficient evidence to create an issue of fact concerning exclusion from MCBR or the reasonableness of membership fees. The plaintiffs have not shown the court that the membership dues schedule was anti-competitive by being discriminatory or unreasonable. Realty MultiList expressly allowed for a “pro-rata contribution toward the cost of the maintainence and the development of [the private realty organization], including the accumulation of reasonable reserves.” Realty Multi-List, 629 F.2d at 1386. In a similar antitrust case, a court stated that the “[plaintiff’s claim is thus not that it was excluded from membership in [the private organization] completely, but that it was excluded at anything but the [desired] price.” Ralph C. Wilson Indus., Inc. v. American Broadcasting Companies, Inc., 598 F.Supp. 694, 709 (N.D.Cal.1984); aff'd 794 F.2d 1359 (1986). The evidentiary record in this case does not establish a conspiracy to exclude the Popes or any discrimination in the membership fee schedule or other requirements for membership of the MCBR. The court finds that the plaintiffs have not produced sufficient evidence to establish a genuine issue of material fact concerning whether they were discriminated against or denied membership in the case sub judice. 3. MLS is Exclusive Service of MCBR The court’s next inquiry is whether board membership may be required for participation in the MLS under the antitrust laws. There is no material issue of fact on this requirement because the defendants admit that only board members may participate in the multiple listing service. The plaintiffs claim that limiting the service to board members violates the antitrust laws. A multiple listing service is only a vehicle through which real estate brokers invoke cooperation in the sale of real estate by extending offers of sub-agency to one another. More fundamentally, the sharing of listings is the essence of the multiple listing concept. The listing broker retains the primary fiduciary responsibility, with its legal and ethical ramifications, to the property owner. (citations omitted) Without some insurance that the brokers who act as sub-agents to the listing broker through the listing service are responsible and competent, it is possible that neither brokers nor the public will utilize the service, thus forfeiting the benefits it may yield to all. Realty Multi-List, 629 F.2d at 1369. The undisputed facts are established. The critical legal question is whether requiring board membership to participate in MLS satisfied the “rule of reason” standard or is a violation of the antitrust laws. May the MCBR provide the MLS as an exclusive service for members and deny MLS participation to non-members? A private organization may limit its services to its members as long as there is no arbitrary exclusion from membership, even where the services are economically necessary. Associated Press v. United States, 326 U.S. 1, 21-23, 65 S.Ct. 1416, 1425-26, 89 L.Ed. 2013, 2031 (1944); aff'g, United States v. Associated Press, 52 F.Supp. 362 (S.D.N.Y.1943). A number of sister courts have addressed this issue. “The defendant realtors are all members of a voluntary trade association and as such may properly exclude any non-member from participation in its activities. Such exclusion does not constitute a violation of the antitrust laws.” Martin Trígona v. National Association of Realtors, 1978-1 Trade Cases (CCH) ¶ 61,915 (E.D.Ill.1978) [available on WEST-LAW, 1978 WL 1310]. See also Brown v. Indianapolis Board of Realtors, 1977-1 Trade Cases (CCH) ¶ 61,435 (S.D.Ind.1977) [available on WESTLAW, 1977 WL 1405] Murphy v. Alpha Realty, Inc., 1978-2 Trade Cases (CCH) 1162,388 (N.D.Ill.1978) [available on WESTLAW, 1978 WL 1451]. The reasoning of these district court cases is derived in part from Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013. Associated Press concluded, in a summary judgment posture, that the arbitrary exclusion from membership in an association providing services and facilities essential to effective competition is unlawful, but that an association may lawfully limit its services and facilities to its members where there are no restrictive membership arguments. Associated Press, 326 U.S. at 8-12, 21-23, 65 S.Ct. at 1418-21, 1425-26, 89 L.Ed. at 2023-2026, 2031-2032. Associated Press temporarily enjoined the observance of the agreement restricting services to members until the private organization complied with the court decree requiring non-restrictive membership requirements. Associated Press, 326 U.S. at 22, 65 S.Ct. at 1425, 89 L.Ed. at 2031. In the underlying district court decision, Judge Learned Hand reasoned that “taken by themselves, and apart from restrictions upon membership, both agreements [limiting services to members] would be valid; it is essential to the protection of the main purpose that the members who [participate in this service] shall not destroy the value of [the service by making it available to non-members].” Associated Press, 52 F.Supp. at 374. The Supreme Court upheld the district court, indicating that an organization may lawfully limit its services and facilities to its members. Associated Press, 326 U.S. at 21-23, 65 S.Ct. at 1425-26, 89 L.Ed. at 2031-2032. The Supreme Court did not allow competing non-members to by-pass membership but required the private organization to open up membership to these non-members. Many state courts which have addressed this issue have held that a board of realtors may limit participation in its MLS to its members so long as membership on the board is open to all persons licensed as brokers on reasonable and non-diseriminatory terms. The court finds one such case very persuasive. State ex rel Miller v. Cedar Rapids Board of Realtors, 300 N.W.2d 127 (Iowa 1981). In the Cedar Rapids case, the state attorney general sued a realtor organization alleging that the board’s requirement that MLS participants must be members of the local Board of Realtors violated the state antitrust laws, which were patterned after the federal antitrust laws. The attorney general took the position that the board’s membership requirements were illegal, even if board membership was freely available to any real estate broker willing to join the board and pay membership dues. The Iowa Supreme Court applied the “rule of reason” of antitrust case law and held that the realty organization was not required by the antitrust laws to provide services to non-members. The court’s reasoning is very persuasive: The alleged evil the State identifies is that a few [local] brokers — two were produced at trial — want access to the MLS without the “unnecessary barrier” of Board membership. The remedy sought is removal of “the price of admission to a non-related activity,” i.e., Board membership and fees, because one broker testified MLS access is an “economic necessity.” ... The State’s proposed solution would give a few competitors a monetary advantage over the MLS brokers whose organizing ability, money, and volunteer time has made the service a viable tool for effective selling. Judge Learned Hand’s admonition is relevant: “The successful competitor, having been urged to compete must not be turned upon when he wins.” United States v. Aluminum Co. of America, 148 F.2d 416, 430 (2nd Cir.1945). A different case would be presented if brokers were unreasonably denied membership in the board and, consequently, access to the MLS. But here, unlike the government in United States v. Realty Multi-List, Inc., 629 F.2d 1351, 1358 (5th Cir.1980), the State conceded the membership requirements of the board were reasonable. So long as board membership is available to all on a non-discriminatory basis as this record indicates, we will not compel this private trade association to share one of its membership benefits with brokers who, for whatever personal or business reasons, declined to join. Cedar Rapids, 300 N.W. 2d at 129-130, 131. In opposing summary judgment on this issue, the plaintiffs rely heavily on Realty Multi-List. The court finds this case very instructive but cannot agree that it precludes summary judgment in the case sub judice. Realty Multi-List held that “[a] concerted denial of access to RML’s listing service, when RML members have agreed to pool and share their listings, amounts to a group boycott of the non-member.” Realty Multi-List, 629 F.2d at 1361. However, the real issue presented in the case sub judice is not whether the membership requirements are discriminatory against the Popes or exclude the Popes, but whether simply requiring membership to participate in the MLS violates the “rule of reason.” Realty Multi-List did rely on a Supreme Court decision which allowed non-members to use the facilities of a private organization on just and reasonable terms, but failed to indicate that this separation of membership from services might be required in the context of a multiple listing service. Instead, the Fifth Circuit emphasized that the private organization must permit applicants to become members. Moreover, RML must be allowed to recover the actual cost of its continuing services to members, just as it does now. RML’s present stock purchase rule, however, is without justification in its competitive needs, and the district court erred in approving it. (emphasis added) Realty Multi-List, 629 F.2d at 1387. The Court was mandating open membership and requiring that the membership fees not be a barrier to participation in the multiple listing service. Realty Multi-List, 629 F.2d at 1387. The Fifth Circuit has not indicated that the requirement of membership should be thrown out entirely but instead held that membership requirements must be reasonable. Other courts have applied Realty Multi-List in a limited way or have recognized that Realty Multi-List does not control when the reasonableness of membership criteria is not at issue. Cedar Rapids, 300 N.W.2d at 130; see also Pomanowski v. Monmouth County Board of Realtors, 89 N.J. 306, 446 A.2d 83, 91 (N.J.); cert. denied 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170 (1982); Phil Tolkan Datsun, Inc. v. Greater Milwaukee Datsun Dealer’s Advertising Ass’n., Inc., 672 F.2d 1280, 1286-1287 (7th Cir.1982). The plaintiffs have attempted to rely upon California state cases which hold that where MLS access has been shown to be a practical economic necessity for survival in a real estate brokerage market, the MLS must automatically be made available without the requirement of board membership. Marin County Board of Realtors v. Palsson, 16 Cal.3d 920, 130 Cal.Rptr. 1, 549 P.2d 833 (1976). Even if the Fifth Circuit adopted the California reasoning that board membership should not be required where MLS participation is a practical economic necessity, the plaintiffs have failed to show that participation in the MLS is a practical economic necessity for the survival of their business. In fact, the plaintiffs have failed to produce evidence of any meaningful impact upon their ability to do business in the case sub judice. Associated Press, Realty Multi-List and other decisions guiding this court do not indicate that MCBR membership and participation in the MLS should be separated from each other. The court recognizes that the MLS is a service provided by MCBR. Considering the entire evidentiary record, the court finds that the plaintiffs have failed to produce sufficient evidence to establish a genuine issue of material fact to preclude summary judgment. The court therefore finds that the requirement of membership to participate in the MLS is not a violation of the antitrust laws in the case sub judice. 4. No Showing of Market Power Under the rule of reason, the court must not only consider the validity of the competitive justification given for the restraint imposed, but it also must determine the market power of the combination. Therefore, the court has the power to void “any significantly restrictive rule of a combination or trade association with significant market power, which lacks competitive justification or whose reach clearly exceeds the combination’s legitimate needs.” Realty Multi-List, 629 F.2d at 1370 (emphasis supplied). The plaintiffs have not established that the MLS has significant market power in the case sub judice. The plaintiffs have conceded that they sell 70% to 80% of their own listings “in house” because it is more profitable to sell their own listings. These “in house” sales have no connection to either the MLS or the private defendants. The plaintiffs have also conceded that they have access to the listings of Murphy and Roberts completely apart from any participation in the MLS. The parties have stipulated that Pope’s Realty-Century 21 has provided monthly financial information to a regional Century 21 office. Based upon this information, Raymond Micsan, director of the Century 21 regional office, stated that the plaintiffs enjoy a “normal” ratio of “in house” to cooperative sales for similarly situated Century 21 francises, despite their non-participation in the board’s MLS. The plaintiffs have not come forward with specific evidence to demonstrate that their non-participation in the MLS has had any appreciable effect on their ability to engage in cooperative sales or to remain generally competitive in the Monroe County real estate market. The Supreme Court has emphasized that the legality of arguable anti-competitive conduct should be judged primarily by its “market impact.” Monsanto, 465 U.S. at 762, 104 S.Ct. at 1470, 79 L.Ed.2d at 784; see also Realty Multi-List, 629 F.2d at 1370. The plaintiffs have failed to show any market effect from these allegedly anti-competitive restraints. The court also recognizes that participation in the MLS does not insure cooperation with each participant of the MLS. Even if participation in the MLS was open to the plaintiffs without the standard fee or membership in MCBR, the individual participants could still decline to cooperate with the plaintiffs or to cease their MLS participation altogether. This possibility would clearly have an anti-competitive impact on the real estate market. Under the rule of reason, a showing of anti-competitive market effect is an essential predicate for antitrust liability. Monsanto, 465 U.S. at 762, 104 S.Ct. at 1470, 79 L.Ed.2d at 784; Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683, 687 (1918). The Seventh Circuit has stated the rule as follows: It is by now well established