814 F.Supp. 1254 (1992)
Ralph J. MILLER, Plaintiff,
v.
INDIANA HOSPITAL, et al., Defendants.
Civ. A. No. 81-1091.
United States District Court, W.D. Pennsylvania.
March 9, 1992.
*1255 *1256 J. Bradley Kearns, Pittsburgh, PA, for plaintiff.
Larry A. Silverman, Pittsburgh, PA, David Serene, Indiana, PA, for defendants.

MEMORANDUM OPINION
BLOCH, District Judge.
Before this Court is defendants' motion for summary judgment. For the reasons stated herein, the Court finds that the record, taken as a whole, demonstrates that a rational trier of fact would not find for plaintiff, Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and, therefore, there is no genuine issue for trial. Defendants' motion will be granted.

I. Facts
This suit arises out of the revocation of plaintiff's medical staff privileges by defendant Indiana Hospital (Hospital) in 1977, and out of the Hospital's refusal to accept and process plaintiff's post-termination applications for reinstatement. The undisputed facts of this case are as follows. Plaintiff is a licensed physician specializing in urology, and obtained staff privileges at the Hospital in 1958. Indiana Hospital is the only general hospital in Indiana County, a county encompassing an area of approximately 825 square miles, and is centrally located within the county.
In the early 1960's, plaintiff purchased a tract of land in the vicinity of the Hospital. In 1964, he built a professional office building with a 5-physician capacity on the tract, and his own practice was moved into this facility. Also in the 1960's, plaintiff began plans for a new concept in Indiana County involving delivery of health services. The concept involved a group physician practice that would attract families by providing pediatric services as well as the services of general practitioners and medical and surgical specialists. This concept materialized as the Indiana Medical Center (IMC), for which plaintiff had a building erected in 1975. Prior to the building completion, plaintiff began recruiting physicians to staff the center, and employed two pediatricians at IMC as well as three consulting internists who practiced in Pittsburgh and made regular visits to IMC.
On February 16, 1977, Joseph P. White, a patient who had been under the care of plaintiff, died at the Hospital. The following day, defendant Dr. Melvin Williams, a member of the Medical Staff's Executive Committee, sent a report to defendant Dr. Richard Freda, the President of the Medical Staff, stating that the quality of care which plaintiff had rendered to White was below that which should be acceptable in any hospital. On February 22, 1977, Dr. Freda sent a letter to plaintiff inviting him to attend a meeting of the Executive Committee pursuant to the Hospital Staff Bylaws regarding the charges which had been made against him. On February 24, 1977, Dr. Williams sent another letter to the Executive Committee formally requesting that action be taken to suspend plaintiff's staff privileges. This letter cited additional instances of inadequate care provided by plaintiff. On February 26, 1977, the Executive Committee held an informal meeting which plaintiff attended. Plaintiff refused to discuss the charges against him and left the meeting abruptly.
On March 18, 1977, the Executive Committee sent written notice to plaintiff of its determination to recommend to the Board of Directors of the Hospital that his active staff privileges be revoked. Plaintiff demanded a hearing and indicated his intention to exercise his rights to defend himself in accordance with the Bylaws. Consequently, the Committee informed plaintiff of the hearing date and provided him with a list of charges against him and a list of proposed witnesses. The list of charges went beyond those included in the original complaint letter and request for revocation. In the interim, plaintiff requested that the Executive Committee appoint an impartial ad hoc committee to conduct the hearing because he viewed the Executive Committee as hostile and biased against him. The Committee denied the request and held a hearing beginning on June 15, 1977, and continuing for several days thereafter.
The hearing committee consisted of three members of the Medical Staff and one member *1257 of the Dental Staff. Both parties were represented by counsel. The hearing officer presiding over the proceedings was counsel to the Hospital. The hearing committee recommended the revocation of plaintiff's staff privileges finding that plaintiff had engaged in disruptive, insulting, disparaging, disrespectful, abusive and other improper behavior towards physicians, nurses and administrative personnel and delineated numerous examples of such behavior. The Committee also found that plaintiff acted improperly in failing to request a medical consultation concerning White "under circumstances which should have clearly indicated to Dr. Miller the need for such consultation." (Hearing Committee Finding No. 2).
The committee also found that plaintiff had "failed to order, or to timely order, various standard, routine and necessary examinations, testings and laboratory work incidental and necessary for proper medical management of patient Joseph P. White's respiratory condition." (Hearing Committee Finding No. 3). In addition, the committee found that plaintiff had failed to comply with an order of the Bureau of Medical Assistance, barring him from further participation of writing of prescriptions under the Commonwealth Medical Assistance Program and that at various times plaintiff had violate Medical Assistance Rules and Regulations and Pennsylvania law by privately billing Medical Assistance patients, referred to him on a rotation basis by the Hospital. (Hearing Committee Finding Nos. 4, 11). The plaintiff was also found to have "made an improper and unprofessional comment and publication, by conducting a discussion with a layman, at which time Dr. Miller revealed confidential medical information about a certain patient's pap smear." (Hearing Committee Finding No. 6). Finally, plaintiff was found to have exhibited a lack of diligence in his duties as Chairman of the Infection Control Committee in 1976; a failure to cooperate with the Executive Committee of the Medical Staff concerning its Preceptorship Program in the year 1971; a failure to cooperate with the Executive Committee by refusing to serve on a Library Committee for the year 1975; and a failure to cooperate with the Hospital's administration by not preparing and submitting complete and adequate patient care records. (Hearing Committee Finding Nos. 710).
On August 10, 1977, the Executive Committee adopted the recommendation by the hearing committee that all Hospital staff privileges and the staff membership of plaintiff be revoked. Plaintiff appealed to the Hospital Board of Directors. After an adversary hearing, a committee of four directors affirmed the determination of the Executive Committee and the full Board adopted their recommendation.
On October 14, 1977, plaintiff obtained a preliminary injunction ex parte from the Court of Common Pleas of Indiana County preventing revocation of his staff privileges. The Court dissolved the preliminary injunction on February 9, 1978, and denied a permanent injunction on June 29, 1978. The Court reviewed each of plaintiff's allegations and concluded that (1) the Hospital's revocation decision was in compliance with the Bylaws of the Hospital and the medical staff; (2) the Hospital's conduct was not arbitrary, capricious or contrary to law; and (3) the Hospital's decision was based on proper cause. Miller v. Indiana Hospital, No. 35EQ1977.
Plaintiff appealed the decision of the Court of Common Pleas to the Superior Court of Pennsylvania. On April 3, 1980, the Superior Court affirmed the lower court's finding that: (1) the charges against plaintiff were supported by sufficient evidence; (2) the Hospital adequately investigated the charges; and (3) the Hospital afforded plaintiff comprehensive procedural safeguards, including an appeal of right to the Board of Directors. Miller v. Indiana Hospital, 277 Pa.Super. 370, 419 A.2d 1191 (1980).
During the pendency of the termination proceedings in 1977 and for several years following his termination, plaintiff applied for and was denied reinstatement of his staff privileges. Based on the 1977 revocation, the Hospital refused to consider his application and, in later years, refused to supply him with an application.
In 1980, plaintiff filed a petition with the Commonwealth of Pennsylvania Department *1258 of Health (DOH) contending that the Hospital's refusal to furnish him with an application for staff privileges and to process his application violated state and federal regulations and Hospital Bylaws. DOH treated the petition as a formal complaint under 1 Pa. Code § 35.9 and instructed the Hospital to file a response. Thereafter, DOH advised plaintiff that "neither the Pennsylvania Department of Health regulations nor the bylaws of Indiana Hospital require that Indiana Hospital provide you with an application for medical staff privileges." After additional correspondence from plaintiff, DOH reaffirmed its decision and no further appeals were taken by plaintiff. Miller v. Indiana Hospital, 930 F.2d 334, 336 (3d Cir.1991).
Plaintiff then filed a complaint in federal court on July 2, 1981, against the Hospital and certain administrators and physicians, raising federal civil rights, antitrust and pendent state claims. His civil rights and the pendent state claims were dismissed in Miller v. Indiana Hospital, 562 F.Supp. 1259 (W.D.Pa.1983) (Mansmann, J.).[1] Only plaintiff's antitrust claims remain.
According to plaintiff, defendants effectively destroyed the IMC, eliminated his patient referrals and revoked his staff privileges, amounting to a willful abuse of monopolistic power to hamper competition. Plaintiff alleges that the revocation proceedings against him constituted unequal treatment by defendants as compared to the treatment of other staff physicians and that the disparity of treatment was motivated by the defendants' concerns that plaintiff's conduct and plans in the health care market posed an economic threat to the Hospital and individual physicians.
Defendants have moved for summary judgment in this case, stating that the pleadings, admissions of Dr. Miller, other evidence of record, and the affidavit of defendants' market expert establish the absence of a genuine issue of material fact on a number of the basic elements of Miller's claims under Sections 1 and 2 of the Sherman Act.

II. Summary judgment standard
Under recent United States Supreme Court decisions, "a motion for summary judgment must be granted unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In the Third Circuit, the standard has been articulated as follows:
While the moving party has the burden initially of identifying that evidence that demonstrates the absence of a genuine issue of material fact, the non-moving party must make a sufficient showing to establish the existence of every element necessary to its case and on which it bears the burden of proof.
Miller v. Indiana Hospital, 843 F.2d 139, 143 (3d Cir.), cert. denied, 488 U.S. 870, 109 S.Ct. 178, 102 L.Ed.2d 147 (1988).
The courts have made it clear that the moving party does not need to put on evidence to negate his opponent's claim. Rather, he may simply point "out those lacunae in the nonmovant's evidence which the movant claims would prevent a jury from finding in the nonmovant's favor at trial." J.E. Mamiye & Sons, 813 F.2d at 618 (citing Celotex, 477 U.S. at 323, 106 S.Ct. at 2552). The purpose of Rule 56 of the Federal Rules of Civil Procedure is to allow the trial court to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Hence, if the record taken as a whole "renders [plaintiff's] claim implausible," the plaintiff "must come forward with *1259 more persuasive evidence to support [his] claim than would otherwise be necessary." Id.
Although there have been presented issues of material fact as to defendants' intent in terminating plaintiff's staff privileges, see Miller v. Indiana Hospital, 843 F.2d 139 (3d Cir.), cert. denied, 488 U.S. 870, 109 S.Ct. 178, 102 L.Ed.2d 147 (1988), in order to survive a motion for summary judgment, plaintiff must first satisfy certain legal prerequisites with respect to the relevant market and the effects of defendants' actions on competition.[2]
According to defendants, the basic flaw in plaintiff's Section 1 antitrust claim is the absence of proof of an antitrust injury; that is, proof that his termination from staff privileges actually harmed the public by reducing competition in any properly defined relevant market. As to the Section 2 claim, defendants argue that plaintiff has failed to establish monopoly power in the relevant geographic market.

III. Section 1 claim
Section 1 of the Sherman Act provides in part:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is declared to be illegal.
15 U.S.C. § 1 (1982). Under settled law, in order for a plaintiff to prevail on a Section 1 claim, four elements must be proven: "(1) that the defendants contracted, combined or conspired among each other; (2) that the combination or conspiracy produced adverse, anti-competitive effects within the relevant product and geographic markets; (3) that the objects and the conduct pursuant to that contract or conspiracy were illegal; and (4) that the [plaintiff was] injured as a proximate result of that conspiracy." Tunis Bros. Co., Inc. v. Ford Motor Co., 763 F.2d 1482, 1489 (3d Cir.1985) (Tunis I). See also Nanavati v. Burdette Tomlin Memorial Hospital, 857 F.2d 96, 117 (3d Cir.1988); Weiss v. York Hospital, 745 F.2d 786, 812 (3d Cir.1984). Although many actions restrain trade to one degree or another, whether an action violates Section 1 of the Sherman Act depends on whether the restraint is unreasonable. Board of Trade of City of Chicago v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918); Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164, 166 (3d Cir. 1979).

A. The rule of reason and market power
In evaluating defendants' actions in the context of termination of hospital staff privileges, the "rule of reason" applies.[3]Weiss, 745 F.2d at 820; Brown v. Our Lady of Lourdes Medical Center, 767 F.Supp. 618, 628 (D.N.J.1991). According to the rule of reason, plaintiff bears the burden of proving that any concerted action taking place caused *1260 an anti-trust injury by imposing an unreasonable restraint on trade; the defendants are not required to prove that the practices are reasonable. Oksanen v. Page Memorial Hospital, 945 F.2d 696, 709 (4th Cir.1991); Brown, 767 F.Supp. at 629; Doctors Steuer & Latham, P.A. v. Nat. Med. Enterprises, Inc., 672 F.Supp. 1489, 1503 (D.S.C.1987), aff'd, 846 F.2d 70 (4th Cir.1988); ABA Antitrust Section, Antitrust Law Developments 15 (2d ed. 1984). Under the rule of reason:
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 condition 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 factors.
Weiss, 745 F.2d at 817, n. 52 (quoting Board of Trade, 246 U.S. at 238, 38 S.Ct. at 244).
In order for plaintiff to meet his burden, he must prove what market he contends was restrained and that the defendants played enough of a significant role in the relevant market to impair competition significantly. Oksanen, 945 F.2d at 709; see Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 29, 104 S.Ct. 1551, 1567, 80 L.Ed.2d 2 (1984). "Market power means the ability to injure consumers by curtailing output and raising price." Steuer & Latham, 672 F.Supp. at 1504 (quoting Fishman v. Estate of Wirtz, 807 F.2d 520, 568 (7th Cir.1986) (Easterbrook, J., dissenting in part)). Without such market power, any restraint on trade created by the defendants' actions is unlikely to implicate Section 1. Oksanen, 945 F.2d at 709.

B. Defining the market
Market definition requires both a geographic and a product dimension. It is a "fundamental tenet of antitrust law that the relevant market definition must encompass the realities of competition." Oksanen, 945 F.2d at 709 (citing United States v. Grinnell Corp., 384 U.S. 563, 572-73, 86 S.Ct. 1698, 1704-05, 16 L.Ed.2d 778 (1966)). Proper market definition "must include examination of both the alternatives available to consumers of hospital services in [Indiana] County and the alternatives available to [doctors practicing in the relevant product market] seeking job opportunities at [Indiana Hospital]." Steuer & Latham, 672 F.Supp. at 1504.

1. The relevant product market
The relevant product market consists of those:
commodities reasonably interchangeable by consumers for the same purposes. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395 [76 S.Ct. 994, 1007, 100 L.Ed. 1264] (1956); SmithKline Corp. v. Eli Lilly & Co., 575 F.2d 1056, 1062-63 (3d Cir.), cert. denied, 439 U.S. 838 [99 S.Ct. 123, 58 L.Ed.2d 134] (1978). Factors to be considered include price, use and qualities. du Pont de Nemours, 351 U.S. at 404 [76 S.Ct. at 1012]. Accordingly, the products in a relevant product market would be characterized by a cross-elasticity of demand, in other words, the rise in the price of a good within a relevant product market would tend to create a greater demand for the other like goods in that market. Id. at 380, 400 [76 S.Ct. at 998, 1010].
Tunis Bros. Co., Inc. v. Ford Motor Co., 952 F.2d 715, 722 (3d Cir.1991) (Tunis II).
Defendants accept plaintiff's product market definition"physician services involving the use of hospital facilities and hospital services." (See answers to interrogatories (Set II) at ¶ 1 and Miller depo. (Exhibit 15)). Plaintiff, however, also points out that within the primary product market, well-defined submarkets may exist, whose boundaries are determined by practical factors such as the product's particular characteristics and uses, unique production facilities and distinct customers and prices. Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1524, 8 L.Ed.2d 510 (1962); Eastern Dental Corp. v. Isaac Masel Co., Inc., 502 F.Supp. 1354, 1360 (E.D.Pa.1980). Relying on this *1261 precedent, plaintiff states that a method of product or service distribution such as the provision of medical services in a small ambulatory care clinic like IMC also can be considered a relevant product market or submarket for antitrust purposes. Plaintiff submits that there is a well-defined market or submarket for the services offered by IMC which were reasonably interchangeable with and in obvious competition with certain of the Hospital's services, particularly laboratory, radiology and minor surgery.
Defendants argue that plaintiff's attempt to interject a submarket theory should be rejected for a number of reasons. First, until the instant motion, plaintiff has never asserted a submarket theory and should be precluded from doing so at this late date, 11 years after the filing of the complaint. Second, plaintiff has provided no evidence that would allow the Court to recognize such a submarket. Third, plaintiff has failed to present any evidence that any of the defendants had "market power" in this submarket, contending that most doctors' offices provide laboratory, radiology and minor surgery services.
Plaintiff has the burden of proving that laboratory, radiology and minor surgery services constitute the entire relevant market and that other services were not "reasonably interchangeable." Tunis II, 952 F.2d at 724. Putting aside the fact that plaintiff has asserted this theory at such a late date in the litigation of this case, the Court finds that plaintiff failed to produce sufficient evidence that the relevant submarket is laboratory, radiology and minor surgery services. Steuer & Latham, 672 F.Supp. at 1512, n. 25 (citing Military Services Realty, Inc. v. Realty Consultants of Virginia, 823 F.2d 829 (4th Cir.1987) (stating requirement for expert testimony on such issues)).[4] Further, assuming that plaintiff submitted evidence that laboratory, radiology and minor surgery services is a relevant submarket, plaintiff has presented no evidence tending to show that defendants possessed market power within that submarket. Therefore, the Court finds that the relevant product market is physician services involving the use of hospital facilities and hospital services.

2. Relevant geographic market
According to plaintiff, the relevant geographic market is Indiana County or the central portion thereof which the Hospital refers to as its primary service area. Defendants do not accept plaintiff's definition of the relevant geographic market. According to defendants, the relevant geographic market, at a minimum, includes five counties, encompassing nine hospitals within 35 miles of Indiana Hospital. (Ellis affidavit at 4).
As with the relevant product market, the plaintiff bears the burden of proving the relevant geographic market. Tunis II, 952 F.2d at 726 (citing Pennsylvania Dental Ass'n. v. Medical Service Ass'n. of Pa., 745 F.2d 248, 260 (3d Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2021, 85 L.Ed.2d 303 (1985)). The relevant geographic market has been defined as "that geographic area in which there is effective competition in the sale and distribution of particular products or services [in this case, physician services involving the use of hospital facilities and hospital services], and in which persons or entities actually do, or potentially may, compete in the conduct of their business operations." Steuer & Latham, 672 F.Supp. at 1510. The relevant geographic market in antitrust analysis is that section of the country where a firm can increase its price without attracting new sellers or without losing many customers to alternative suppliers outside that area. See Landis & Posner, Market Power in Antitrust Cases, 94 Harv.L.Rev. 937 (1981).
"The definition of a relevant geographic market varies from case to case depending on the type of product and the geographic characteristics of an area, but the relevant geographic market must identify the area of effective competition that the defendant encounters when it offers its product or services for sale." Collins [v. Associated *1262 Pathologists, Ltd. [676 F.Supp. 1388], 1987-1 Trade Cas. (CCH) ¶ 67,603,] 60,620 [C.D.Ill. Feb. 11, 1987), citing Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320 [81 S.Ct. 623, 5 L.Ed.2d 580] (1961).
Steuer & Latham, 672 F.Supp. at 1510. It is the geographic area in which a purchaser can practically turn to other sellers for products or services, in the event that the defendant seeks to raise its prices or restrict output. Brown, 767 F.Supp. at 630 (quoting W. Holmes, Antitrust Law Handbook (1991 ed.) at 295, citing United States v. Philadelphia Nat'l. Bank, 374 U.S. 321, 359, 83 S.Ct. 1715, 1739, 10 L.Ed.2d 915 (1963)). "Consequently, the relevant geographic market is not comprised of the region in which the seller attempts to sell its product, but rather it is comprised of the area where [its] customers would look to buy such a product." Tunis II, 952 F.2d at 726. The relevant geographic market must encompass those hospitals which are perceived as attractive alternatives to Indiana Hospital by physicians, third-party payors and "above all by patients, who `vote with their feet' by leaving the county in large numbers when they require hospitalization." Steuer & Latham, 672 F.Supp. at 1514. The relevant geographic market does not include solely the plaintiff's preference for performing his services at the only hospital in the county.
Plaintiff himself testified in his deposition that he was aware of situations where physicians in Indiana, including himself, referred urological patients outside the County "with some frequency." (Miller depo. at 434-35). In addition, the plaintiff testified that the pediatricians on staff at IMC, who came to Indiana County from their practices in Pittsburgh, would typically admit a patient either to Childrens Hospital in Pittsburgh or to Indiana Hospital, depending on "whether the pediatricians felt that the facilities of Indiana Hospital or their talents were not satisfactory to care for a particular patient." Id. at 446-47. Plaintiff also testified that women would chose to leave Indiana County to have babies and people would undergo elective surgery outside Indiana County due to quality of care concerns, even though those services were also provided by Indiana Hospital. Id. at 466.
In addition, Melba Galonis, plaintiff's partner at IMC, testified that Indiana residents use Indiana Hospital in addition to hospitals in Armstrong County, Johnstown, Latrobe, Greensburg, and Pittsburgh based on "their preference." (Galonis depo. at 68-69). This testimony indicates to the Court that physicians and patients can, and do, choose from a variety of hospitals for procedures and are not limited to Indiana Hospital.
As stated by the Federal Trade Commission, the boundaries of a relevant geographic market in the context of a hospital industry depends on barriers to entry and the ability of consumers to switch to other hospitals:
Because we are concerned only with an area in which competition could be harmed, the relevant geographic market must be broad enough that buyers would be unable to switch to alternative sellers in sufficient numbers to defeat an exercise of market power by firms in the area.... If an exercise of market power could be defeated by the entry of products produced in another area, both areas should be considered part of the same geographic market, since competition could not be harmed in the smaller area.... Looking at a "static" snapshot of a market is thus insufficient in itself.... Rather, evidence of current market behavior must be viewed in a "dynamic" framework that considers the possible competitive responses of firms outside the current market area to anti-competitive behavior of firms within.
In the Matter of Hospital Corporation of America, 106 FTC 361, 466 (1985), aff'd., Hospital Corporation of America v. FTC, 807 F.2d 1381 (7th Cir.1986), cert. denied, 481 U.S. 1038, 107 S.Ct. 1975, 95 L.Ed.2d 815 (1987). As held in Steuer & Latham, "the dynamic analysis described by the Commission is at the heart of antitrust analysis; it is central to the concept of market definition. The dynamic analysis hinges on the adducing of evidence of elasticity of demand and barriers to entry. In the absence of such evidence, it is simply not possible to infer whether a service area constitutes a geographic *1263 market for antitrust purposes." Steuer & Latham, 672 F.Supp. at 1511.
Plaintiff's assertion that the relevant geographic market is Indiana County, or the central portion thereof, is based on the following data supplied by the Indiana Hospital PA Certificate of Need Application Proposal for Computerized Tomographic Whole Body Scanner (December, 1982):
Based upon admission data, Indiana Hospital's primary service area consists of 54,551 residents or 59% of Indiana County's population. The communities ... provided 75.3% of Indiana Hospital's discharges.... [Outlying portions] of Indiana County accounts for 14.6% of Indiana Hospital's discharges. Other Pennsylvania counties and Out-of-State admissions account for the remaining 10.1%.
* * * * * *
Indiana Hospital's Primary Service Area consists of ten (10) townships and/or boroughs within a five (5) mile radius to the West to a fifteen (15) mile radius on the Northeast from Indiana Borough....
The Relevance Index and Relative Market Share Index are indices which may be used to evaluate Indiana Hospital's strategic position within the health care market.
Relevance Index:
Persons in Primary Service Area discharged from Indiana Hospital
Total Indiana County Discharges
The Relevance Index assesses the relationship between Indiana Hospital's discharges within Indiana Hospital's Primary Service Area and all Indiana County discharges from all other hospitals. Indiana Hospital's Relevance Index is 55.2%.
Relative market share:
Number of patients in the Primary Service Area discharged from Indiana Hospital
Number of patients in the Primary Service Area discharged from all Hospitals
Indiana Hospital's relative market share for its primary service area is 82.8%. 1,501 patients residing within Indiana Hospital's Primary Service Area sought care from hospitals other than Indiana Hospital. Indiana Hospital's Relative Market Share for its Primary and Secondary service area is 66%. 4,441 Indiana County residents who sought acute care, sought services from hospitals other than Indiana County. Outmigration for Indiana County, as a whole, is 34%. Outmigration for Indiana Hospital's primary service area is 17.2%.
(Certificate of Need, at 7-10). The data contained in the Certificate of Need and plaintiff's definition of relevant geographic market refers solely to the Hospital's service area. In Steuer & Latham, the Court found that a county is not the relevant geographic market in a single hospital county merely based on the hospital's service area. "In order to convert a `service area' into a geographic market, it is necessary to offer evidence regarding elasticity of demand and barriers to entry. Absent such evidence, which plaintiffs have the burden of introducing, there is no basis for inferring that a service area constitutes a geographic market, or that the patient origin data pertinent to that service area constitute `market share' information." Steuer & Latham, 672 F.Supp. at 1511. In order to allow a jury to make a finding as to the Hospital's percentage of market share, plaintiff must first provide the Court with expert testimony that the service area does, in fact, constitute an antitrust market. Id. at 1511-12, n. 25. Plaintiff has not presented the Court with any evidence which could lead a jury to determine whether the above-cited statistics constitute a market share.
Although plaintiff has presented no expert testimony to support his version of the relevant geographic market,[5] defendants have *1264 submitted the expert report of Edwin F. Ellis, Jr., CPA, who states that the relevant geographic market is five counties encompassing nine hospitals and that defendants' market share in this relevant market ranged from 10.6 percent to 11.3 percent. According to a 1977 feasibility study for Indiana Hospital (Ellis affidavit, Exhibit F), and a patient destination report of Indiana County residents for calendar year 1984 (Ellis affidavit, Exhibit G), 40 percent of the residents of Indiana County who were hospitalized during the time periods covered by these reports utilized hospitals other than Indiana Hospital, i.e., hospitals outside Indiana County. Ellis concludes that the Hospital's primary service area is not a relevant geographic market for antitrust purposes because "residents of Indiana County can and do readily obtain hospital services at hospitals other than Indiana Hospital (i.e., hospitals outside Indiana County)." (Ellis affidavit at 6). In addition, according to a report prepared by Hamilton Associates (Ellis affidavit, Exhibit E), there are seven hospitals within 25 to 30 miles of Indiana Hospital, and one hospital within 35 miles of Indiana Hospital. This evidence of market share is far from sufficient to establish the market power necessary to significantly restrain trade. Oksanen, 945 F.2d at 709. See Robinson v. Magovern, 521 F.Supp. 842, 887 (W.D.Pa.1981), aff'd, 688 F.2d 824 (3d Cir.), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982); United States v. Aluminum Company of America, 148 F.2d 416 (2d Cir.1945).
Plaintiff asserts that the Certificate of Need itself is sufficient evidence of the relevant geographic market. The Certificate states that "[i]t should be noted that geographic accessibility to these other facilities is less than desirable, particularly during inclement weather, due to the mountainous terrain and poor road conditions." (Certificate of Need at 5). In addition, in a 1976 Program for Development, the Hospital made the following statement:
Indiana Hospital is the only hospital in Indiana County. It has virtually no competition from other hospitals in the area. Therefore, it must be responsive to the health care needs of (1) the county, and (2) the specialized needs of people living particularly in contiguous counties to the north and east. The hospital must be prepared to function as a coordinator for providing new and expanded health services for its Service Area. It must be prepared to provide either directly or indirectly: emergency care, general acute care, long term care, home care and ambulatory care.
(Program for Development at 3). Plaintiff attempts to utilize these statements as evidence that Indiana County is the relevant geographic market. Plaintiff's contention ignores the fact that (1) statements regarding geographic accessibility to other facilities is merely one factor in determining the relevant geographic market, but that more extensive testimony, i.e. expert testimony, is needed to tie geographic accessibility to other factors, Steuer & Latham, 672 F.Supp. at 1512 n. 25 (citing Military Services Realty, 823 F.2d at 829; Forro Precision, Inc. v. IBM, 673 F.2d 1045, 1058-59 (9th Cir.1982)); (2) what the Hospital itself perceives to be its competition is irrelevant to the question of whether in fact there existed competition, which requires expert testimony, id.; and (3) taken in context, it is clear that this statement relates to the Primary Service Area, an area that has been held to be insufficient in itself to establish a relevant market. Steuer & Latham, 672 F.Supp. at 1511.

C. The need to show significant injury to competition
The focus of antitrust law is on promoting competition, not on protecting competitors. Brunswick Corp. v. Pueblo-Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977); National Collegiate Athletic Association v. Board of Regents, 468 U.S. 85, 103, 104 S.Ct. 2948, 2961, 82 L.Ed.2d 70 (1984). As stated in Oksanen:

*1265 As a result, a plaintiff cannot demonstrate the unreasonableness of a restraint merely by showing that it caused him an economic injury. For example, the fact that a hospital's decision caused a disappointed physician to practice medicine elsewhere does not of itself constitute an antitrust injury. [Hyde, 466 U.S. at 31, 104 S.Ct. at 1568.] If the law were otherwise, many a physician's workplace grievance with a hospital would be elevated to the status of an antitrust action. To keep the antitrust laws from becoming so trivialized, the reasonableness of a restraint is evaluated based on its impact on competition as a whole within the relevant market. See Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328 [110 S.Ct. 1884, 109 L.Ed.2d 333] (1990).
Oksanen, 945 F.2d at 708. See Nanavati, 857 F.2d at 121, n. 24.
Even if plaintiff did submit evidence of a restraint on competition in a relevant market, he must go on to prove that the restraint is "substantially adverse." United States v. Arnold, Schwinn & Co., 388 U.S. 365, 375, 87 S.Ct. 1856, 1863, 18 L.Ed.2d 1249 (1967). "Practices that produce only an `insignificant,' `de minimis,' `trivial,' or `insubstantial' restriction of competition are not unlawful." Steuer & Latham, 672 F.Supp. at 1504. See United States v. Topco Associates, Inc., 405 U.S. 596, 606, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972). As discussed in Tunis II, "[t]he Sherman Act was designed to prohibit significant restraint of trade rather than to `proscribe all unseemly business practices;' [Sitkin Smelting and Ref. Co. v. FMC Corp., 575 F.2d 440, 448 (3d Cir.), cert. denied, 439 U.S. 866, 99 S.Ct. 191, 58 L.Ed.2d 176 (1978)]; see Apex Hosiery Co. v. Leader, 310 U.S. 469, 493 n. 15, 60 S.Ct. 982, 992 n. 15, 84 L.Ed. 1311 (1940); and the plaintiff[] must have demonstrated some harm to the competitive landscape" as a result of Indiana Hospital's termination of plaintiff's staff privileges. Tunis II, 952 F.2d at 728.
The analysis of whether there was a substantial effect on competition requires that the plaintiff put forth at least some evidence of the impact of the exclusion on the market so that a jury would not be forced to speculate as to what the injury might have been. In this case, plaintiff did not present any evidence of adverse effects, apart from the adverse affects to his own practice. In order to show a substantial effect on competition, it is necessary to show that there was either (1) a rise in the price of medical services above a competitive level, (2) a decrease in the supply of doctors in the relevant market, or (3) a decrease in the quality of medical services provided. Id. at 29. See also Nanavati, 857 F.2d at 121 n. 24. Plaintiff's "anecdotal information" that there has been some increase in price charged for the relevant services as a result of termination of his staff privileges (Miller depo. at 477-78, 480) is far from sufficient to aid a jury in determining the extent of any adverse affects on competition. As to the requirement of showing a decrease in the supply of doctors in the relevant market, plaintiff has presented no evidence tending to show that physicians in the relevant product and geographic market have decreased as a result of defendants' actions.[6] Further, this is not a case where a representative of a class of competitors is being excluded from the market. Cf. Weiss (attempt to exclude osteopaths); Oltz v. St. Peter's Community Hosp., 861 F.2d 1440 (9th Cir.1988) (attempt to exclude nurse anesthetists); Cooper v. Forsyth County Hosp. Auth., 789 F.2d 278 (4th Cir.1986) (attempt to exclude podiatrists). Lastly, there has been no evidence submitted that there has been a decrease in the quality of medical services provided as a result of the termination of plaintiff's staff privileges. Absent such a showing of a rise in price, a decrease in the supply of doctors in the relevant market, or a decrease in the quality of care in the relevant market, there can be no significant effect on competition.
*1266 The Court agrees with the Oksanen Court, which followed Third Circuit reasoning on this issue as follows:
The peer review process, by policing the competence and conduct of doctors, can enhance competition. "By restricting staff privileges to doctors who have achieved a predetermined level of medical competence, a hospital will enhance its reputation and the quality of care that it delivers." Weiss, 745 F.2d at 821 n. 60. Similarly, the friction created between a hospital and a doctor with a legacy of trouble in interpersonal relationships can decrease efficiency, discourage other qualified doctors from joining the staff, and detract from a hospital's ability to provide quality patient service.
In sum, the anti-competitive effects are by no means so clear and one-sided as Oksanen would have them, and the revocation of Oksanen's staff privileges, while undoubtedly impacting adversely on his practice, has not been shown to have had any adverse impact on competition in the relevant market.
Oksanen, 945 F.2d at 709.
Accordingly, since plaintiff has not introduced evidence of market power and has not shown a substantial harm to competition, the Court will grant defendants' motion for summary judgment with respect to plaintiff's Section 1 claim.

IV. Section 2
Section 2 reads in pertinent part:
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 misdemeanor....
15 U.S.C. § 2 (1982). The test for determining whether a defendant has monopolized in violation of Section 2 has been articulated by the Supreme Court as: "(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." Weiss, 745 F.2d at 825 (quoting Grinnell, 384 U.S. at 570-71, 86 S.Ct. at 1703-04). "A defendant possesses monopoly power if it has the ability to change the competitive variables of a product to the disadvantage of consumers without causing effective competitors to enter the relevant market." Magovern, 521 F.Supp. at 886. In the absence of evidence demonstrating the relevant geographic market or facts demonstrating defendants' ability to exert market dominance in that market, it would be impossible for plaintiff to establish that defendants formed a monopoly to prevent him from operating his trade. Brown, 767 F.Supp. at 631-32. Accordingly, defendants' motion for summary judgment as to plaintiff's claim pursuant to Section 2 shall be granted.
An appropriate Order will be issued.

JUDGMENT ORDER
AND NOW, this 9th day of March, 1992, upon consideration of Defendants' Motion for Summary Judgment filed in the above captioned matter on December 11, 1991, and for the reasons set forth in this Court's Memorandum Opinion filed herewith,
IT IS HEREBY ORDERED that said Motion is GRANTED. IT IS FURTHER ORDERED that judgment be, and hereby is, entered in favor of defendants and against plaintiff.
NOTES
[1]  Procedural history since the 1983 decision includes a district court ruling granting summary judgment on the antitrust claims based on Hospital motives, Miller v. Indiana Hospital, 660 F.Supp. 250 (W.D.Pa.1987) (Simmons, J.), and subsequent reversal, Miller v. Indiana Hospital, 843 F.2d 139 (3d Cir.), cert. denied, 488 U.S. 870, 109 S.Ct. 178, 102 L.Ed.2d 147 (1988); and this Court's grant of summary judgment on immunity grounds, which was subsequently reversed. Miller v. Indiana Hospital, 930 F.2d 334 (3d Cir. 1991).
[2]  Defendants have alleged that plaintiff has no standing to enforce the antitrust laws, since IMC was the only entity against whom the illegal restraint was allegedly directed. This Court disagrees. Plaintiff has made it clear that he alleges that the illegal restraint was directed to himself as a result of setting up IMC. Because plaintiff has alleged a direct economic injury traceable to defendants' actions that allegedly violated the antitrust laws, plaintiff has standing. Out Front Productions, Inc. v. Magid, 748 F.2d 166, 168 (3d Cir.1984) (citing Association of Data Processing Service Organization v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970)).
[3]  The rationale for use of the rule of reason under such circumstances has been aptly explained in Brown v. Our Lady of Lourdes Medical Center, 767 F.Supp. 618 (D.N.J.1991), as follows:

"[T]he use of a hospital's internal review procedures does not imply [an] anti-competitive state of mind. Review procedures are necessary to insure that hospital staff members are competent medical practitioners." Goss v. Memorial Hosp. System, 789 F.2d 353, 355 (5th Cir.1986). A medical staff is permitted to exclude an individual doctor based on that doctor's lack of professional competence or unprofessional conduct. When such a reason is offered for the exclusionary conduct, the court must apply the "rule of reason" to evaluate plaintiff's antitrust claim. Weiss, 745 F.2d at 820. The court must utilize the rule of reason when considering conduct otherwise subject to per se condemnation under § 1 of the Sherman Act due to the public service aspect of the medical profession. Weiss, 745 F.2d at 820-21 and cases cited therein.
Brown, 767 F.Supp. at 628. Plaintiff indicates that, for purposes of this motion, he assumes that the rule of reason applies.
[4]  Plaintiff has submitted a statement by a Dr. Gots to the effect that laboratory, radiology and minor surgery services offered by IMC were competitors to those services offered by the Hospital. However, as noted infra, n. 5, Dr. Gots would not be qualified to so testify since this is not an area of expertise of Dr. Gots. Id.
[5]  Plaintiff did submit a report by Dr. Ronald E. Gots, M.D., Ph.D., which plaintiff asserts was intended to give expert testimony on the relevant geographic market. In his report, Dr. Gots states that he had been specifically asked to determine in his best judgment whether plaintiff's loss of Hospital privileges was based upon criteria generally required and customarily utilized in revoking physician privileges, and to determine whether the documents provided and available suggest non-medical, economic motivations for the Hospital's adverse action taken against plaintiff. He does not comment on the relevant geographic market, nor would he be so qualified. Thus, this report does not raise a genuine issue of material fact. Although plaintiff attempted to introduce the expert report of Dr. Klepper on the relevant geographic market, this Court, per Order dated February 19, 1992, ruled that such evidence would not be accepted.
[6]  Although plaintiff points out that there was a decrease in supply of urologists for a short period of time following termination of his staff privileges, in fact, consumers' choice of urologists increased after 1979. (See defendants' answers to interrogatories, Dec. 4, 1991). Furthermore, plaintiff has at no time alleged that the relevant product market is urological services.


                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                                  No. 98-31002
                                Summary Calendar

COASTAL TOWING, INC.,
                                                                  Plaintiff-Appellee,
                                       versus
ERNEST L. MARTIN,
                                                              Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                (97-CV-2703-L)

                                   June 30, 1999
Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*
      Ernest L. Martin appeals the district court’s denial of his motion to dismiss
the declaratory judgment action brought by his former employer, Coastal Towing,

Inc. Martin also appeals the district court’s ruling, after a bench trial, that Martin
is not entitled to maintenance and cure for his maritime injury.

      The trial court rejected Martin’s contention that this declaratory judgment

action should be dismissed because Martin filed a Jones Act claim and a

  *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set
forth in 5TH CIR. R. 47.5.4.
maintenance and cure claim in Louisiana state court. The district court also found
that Martin concealed a prior injury from Coastal when he was hired, and that this

injury would have been material to Coastal’s decision to hire him.                This

concealment deprives Martin of maintenance and cure benefits.
       We review the district court’s refusal to dismiss a declaratory judgment

action because of parallel state proceedings for an abuse of discretion1 and review

its findings of fact for clear error.2 Having reviewed the record and briefs and on

the basis of the district court’s oral findings of fact and conclusions of law dictated
into the record on August 24, 1998, and filed therein on January 11, 1999, the
judgment appealed is AFFIRMED.

   1
     Wilton v. Seven Falls Co., 515 U.S. 277 (1995); Rowan Companies, Inc. v.
Griffin, 876 F.2d 26 (5th Cir. 1989).
   2
     Fed. R. Civ. P. 52(a); Astraea Aviation Servs., Inc. v. Nations Air Inc., 172
F.3d 390 (5th Cir. 1999).
                                          2


277 So.2d 289 (1973)
RADIO COMMUNICATIONS CORPORATION, a Florida Corporation; Thomas J. Brennan, D/B/a Radio Communications Corporation and Thomas J. Brennan, Jointly and Individually As Guarantor, Appellants,
v.
OKI ELECTRONICS OF AMERICA, INC., a Florida Corporation, Appellee.
No. 71-537.
District Court of Appeal of Florida, Fourth District.
May 10, 1973.
Ralph P. Ezzo and Thomas J. Brennan, Miami, for appellants.
No appearance for appellee.
REED, Chief Judge.
This is an appeal from an order by the trial court which was entered on 14 June 1971 striking the defendants' answer and counterclaim because of the failure on the part of defendants' attorneys to appear for a pre-trial conference on 25 May 1971.
The action was commenced by the filing of a complaint in the Circuit Court for Broward County, Florida. The complaint sought to recover for goods sold by the plaintiff to the defendants. The defendants' answer set up various defenses and a counterclaim for damages for breach of warranty. After a mass of pleadings and one interlocutory appeal, the trial court entered an order setting the cause for a pre-trial conference on 13 May 1971. The record before us indicates that no further orders were entered rescheduling the pre-trial *290 conference, but plaintiff filed a motion to strike defendants' pleadings on the ground that defendants failed to appear at a pre-trial conference on 25 May 1971 at 10:30 a.m. The trial court found that the pre-trial conference was rescheduled for the date mentioned in the motion at the request of and to accommodate the defendants, whose attorneys failed to appear. As a result, the trial court granted the motion and struck the answer and counterclaim. This order is the subject of the present appeal.
From a procedural standpoint, it appears to us that the order striking defendants' pleadings is not a final judgment which will support a full appeal nor is it an order in a cause formerly cognizable in equity so as to support an interlocutory appeal. We may, however, within our statutory discretion (§ 59.45, F.S. 1971, F.S.A.), treat the notice of appeal as a petition for a writ of certiorari and review the order on that basis.
The appellants do not contest the authority of the trial court to strike pleadings for failure of a party to appear at a pre-trial conference. The appellants' position is that the trial court abused its discretion because no order was entered rescheduling the pre-trial conference from 13 May to 25 May. Appellants claim they were not otherwise advised of the date for the second pre-trial conference. We have no way of knowing whether this assertion by the appellants is true or false. We do note, however, that the record before us contains no order rescheduling the pre-trial conference. In view of this and in view of the affidavit submitted by the appellants' counsel in opposition to the motion to strike the pleadings in which the appellants' counsel swore that he never received notification of the date or time for the second pre-trial conference, we hold that the trial court abused its discretion in striking the defensive pleadings and the counterclaim.
Accordingly certiorari is granted, the order under review is vacated, and the cause remanded for further proceedings.
CROSS, J., and WHITE, JOSEPH S., Associate Judge, concur.


659 F.2d 1077
*Cooperv.Cooper
81-7147
UNITED STATES COURT OF APPEALS Fifth Circuit
9/22/81

1
S.D.Ga.

AFFIRMED

2
---------------

* Fed.R.App. P. 34(a); 5th Cir. R. 18.


                                  United States Court of Appeals,

                                           Fifth Circuit.

                                           No. 92-8068

                                       (Summary Calendar).

                        UNITED STATES of America, Plaintiff-Appellee,

                                                 v.

    1988 OLDSMOBILE CUTLASS SUPREME 2 DOOR, VIN # 1G3WR14W5JD323281,
Defendant,

                            Aracely A. Gabaldon, Claimant-Appellant.

                        UNITED STATES of America, Plaintiff-Appellee,

                                                 v.

         ONE 1990 SUZUKI SIDEKICK, JX, VIN # JS4TA01C1L4131791, Defendant,

                 Alfredo Gabaldon and Justina Gabaldon, Claimants-Appellants.

                        UNITED STATES of America, Plaintiff-Appellant,

                                                 v.

     ONE 1990 GMC 1500 SIERRA PICKUP, VIN # 2GTEC19KXL1563881, Defendant,

                              Herminia Carbajal, Claimant-Appellant.

                        UNITED STATES of America, Plaintiff-Appellee,

                                                 v.

        ONE 1990 GMC 1500 SUBURBAN, VIN # 1GKEV16K3LF511309, Defendant,

                            Aracely A. Gabaldon, Claimant-Appellant.

                                           Feb. 19, 1993.

Appeal from the United States District Court for the Western District of Texas.

Before KING, DAVIS, and WIENER, Circuit Judges.

       WIENER, Circuit Judge.

       In these co nsolidated civil forfeiture proceedings, which arose from an Internal Revenue

Service criminal investigation, the Claimants-Appellants Aracely Gabaldon, Alfredo Gabal don, Justina

Gabaldon, and Herminia Carbajal appeal the district court's grant of summary judgment in favor of
the government. This appeal affords one of our first opportunities to apply the recent holding of the

Supreme Court implicating continuing jurisdiction despite intervening dispositions of forfeited articles

and the proceeds of such dispositions. In that context we find that we have jurisdiction; we also find

no reversible error in the ruling of the district court, and t herefore affirm its grant of summary

judgment.

                                                   I

                                   FACTS AND PROCEEDINGS

        The IRS investigated six individuals—Rene Gabaldon, Alfredo Gabaldon, Aracely Gabaldon,

Justina Gabaldon, Pablo Carbajal, and Herminia Carbajal—in connection with structuring currency

transactions to evade reporting requirements in violation of 31 U.S.C. § 5324(1) and (3). Three of

the six—Rene, Alfredo, and Pablo Carbajal were eventually convicted of the charges. Aracely

Gabaldon and Herminia Carbajal were found not guilty by the jury; and Justina Gabaldon was never

indicted. The government filed verified complaints for forfeiture against four motor vehicles allegedly

involved in the crimes: (1) a 1988 Oldsmo bile Cutlass Supreme; (2) a 1990 Suzuki Sidekick JX;

(3) a 1990 GMC Sierra Pickup; and (4) a 1990 GMC 1500 Suburban. In response, Aracely

Gabaldon submitted a claim for the Cutlass and the Suburban; Alfredo and Justina Gabaldon

submitted a claim for the Suzuki Sidekick; and Herminia Carbajal submitted a claim for the Sierra

Pickup. The Cutlass, the Suzuki, and the Sierra were transferred from the custody of the United

States Marshal to other government agencies in March and April 1992, almost a year after submission

of the claims. The Suburban, however, apparently remains in the custody of the Marshal Service.

1. 1988 Oldsmobile Cutlass

        The evidence submitted by the Government showed that on February 1990, Rene Gabaldon

negotiated the purchase of a 1988 Oldsmobile Cutlass for a total of $10,300. Records obtained from

the dealer reflect that claimant Aracely Gabaldon paid $5,300 of that amount in cash and Rene

Gabaldon paid the remaining $5,000 in cash on the same day. The cutlass was registered in the name

of claimant Aracely Gabaldon.

        Records obtained from another car dealership show that Rene Gabaldon had purchased a car
in 1988 for $13,006 in cash. An IRS Form 8300, Report of Cash Payments Over $10,000 Received

in a Trade or Business, was completed for this purchase and signed by Rene Gabaldon. Thus, the

government demonstrated that Rene had knowledge of the requirement for a currency transaction

report when a trade or business receives cash amount greater than $10,000.

2. 1990 Suzuki Sidekick

       On July 20, 1990, Alfredo Gabaldon purchased a 1990 Suzuki Sidekick JX for approximately

$16,000. He paid $9,000 of this amount in cash and the remaining $7,000 by cashier's check obtained

that same day. Records submitted by the government showed that Alfredo Gabaldon had purchased

a vehicle in July 1989 for $17,060.02 cash and that he had signed an IRS Form 8300, thereby

demonstrating that he too knew of the requirement for a currency transaction report when a trade or

business receives a cash amount greater than $10,000.

3. 1990 Sierra Pickup and 1990 GMC Suburban

       On February 17, 1990, Rene Gabaldon and Pablo Carbajal negotiated for the purchase of a

1990 Sierra Pickup and a 1990 GMC Suburban and produced a plastic grocery sack containing

$50,000 in cash. Rene informed the salesman that he did not want a currency report completed in

connection with the purchase, but the salesman advised that the form was necessary if the transaction

involved in excess of $10,000 cash. Rene, Carbajal, and the salesman proceeded to a bank where

each purchased a cashier's check in the amount of $9,500. All three cashier's checks were payable

to the car dealership. The men then went to another bank where Gabaldon gave the salesman the

cash to purchase a cashier's check in the amount of $5,000, also payable to the car dealership.

       After obtaining the various cashier's checks in this manner, the three men returned to the

dealership where they completed the purchase transactions for the two vehicles using a combination

of the checks and some of the remaining cash from the grocery bag. On the following Monday, the

title to the Suburban was registered in the name of Rene's eighteen year old sister, Aracely Gabaldon.

On the same day, Carbajal and his wife, Herminia, went to the dealership and had title to the Sierra

Pickup registered to Herminia.

       The government filed a motion for summary judgment in each of the cases, seeking forfeiture
of the vehicles. The district court granted the motion, finding that the government had shown that

the vehicles seized were involved in transactions or attempted transactions involving violations of 31

U.S.C. § 5324(3) and that the claimants had failed to show that such facts did not actually exist.

                                                     II

                                      STANDARD OF REVIEW

          "This court reviews the grant of summary judgment motions de novo, using the same criteria

used by the district court in the first instance."1 Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law."2 "When a proper motion for summary judgment is made, a nonmoving

party who wishes to avoid judgment by establishing a factual dispute must set forth specific facts

showing that there is a genuine issue for trial."3

          In a civil forfeiture case, the government has the initial burden of showing probable cause for

its belief that there exists a substantial connection between the property forfeited and the crime.4

Once the government has made a proper motion for summary judgment, alleging, inter alia, the

existence of probable cause, the grant of such a motion is proper if the claimant fails to show that the

facts constituting probable cause do not actually exist.5 Although we review the district court's

finding of facts for clear error, the question of whether the facts are sufficient to constitute probable

cause is a question of law, which we review de novo.6

                                                     III

                                              ANALYSIS

   1
       Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992).
   2
       FED.R.CIV.P. 56(c).
   3
       Hanks, 953 F.2d at 997.
   4
       United States v. One 1987 Mercedes 560 SEL, 919 F.2d 327, 331 (5th Cir.1990).
   5
       United States v. LITTLE AL, 712 F.2d 133, 137 (5th Cir.1983).
   6
       One 1987 Mercedes SEL, 919 F.2d at 330.
A. Statutory Background

          In these consolidated actions, the government seeks the forfeiture of the four named vehicles

under 18 U.S.C. § 981(a)(1)(A), which provides for the forfeiture of "any property, real or personal,

involved in a transaction or attempted transaction in violation of Section 5313(a) or 5324 of Title 31,

or of Section 1956 or 1957 of [Title 18] or any property traceable to such property."7 We have held

that § 5313(a) requires that a business enterprise file a currency transaction report (CTR) for every

deposit of cash or currency which exceeds $10,000.8 Section 5324(3) prohibits the attempted or

actual structuring of a transaction, and assisting in such an actual or attempted structuring, in

avoidance of the § 5313(a) reporting requirements.

           The government's initial burden in a civil forfeiture case is to demonstrate that probable cause

exists for the belief that a substantial connection exists between the property sought to be forfeited

and the illegal activity.9 In a forfeiture proceeding based on violations of 31 U.S.C. § 5324(3), the

government must show probable cause that the property is tainted, i.e., involved in a transaction in

violation of § 5324(3).10 The proof of probable cause is satisfied when there is "a reasonable ground

for belief ... supported by less than prima facie proof but more than mere suspicion."11 Once the

government makes this showing, the burden shifts to the claimant to demonstrate by a preponderance

of the evidence that factual predicates for forfeiture have not been met12 or that a defense to the

forfeiture applies.13

B. Jurisdiction

   7
       18 U.S.C. § 981(a)(1)(A).
   8
       United States v. Herron, 825 F.2d 50, 52 n. 1 (5th Cir.1987).
   9
       One 1987 Mercedes 560 SEL, 919 F.2d at 331.
   10
        United States v. 316 Units of Mun. Sec., 725 F.Supp. 172, 177 (S.D.N.Y.1989).
   11
    United States v. One 1986 Nissan Maxima GL, 895 F.2d 1063, 1064 (5th Cir.1990) (quoting
United States v. One 1978 Chevrolet Impala, Etc., 614 F.2d 983, 984 (5th Cir.1980)).
   12
        United States v. $364,960.00 in United States Currency, 661 F.2d 319, 325 (5th Cir.1981).
   13
        LITTLE AL, 712 F.2d at 136.
           We first must dispose of the government's argument that this court lacks jurisdiction over the

three vehicles that are no longer in the custody of the United States Marshal Service. After the filing

of this appeal, the Supreme Court addressed this issue directly in Republic National Bank v. United

States,14 The Court's disposition of that case dispels any lingering doubt that this court retains

jurisdiction over the three vehicles.

          In National Bank, the government argued that the court lacked jurisdiction because the

forfeited property had been sold and the proceeds deposited in the Treasury. Thus, the government

argued, the venerable admiralty rule that jurisdiction over an in rem forfeiture proceeding depends

upon continued control of the res deprived the court of jurisdiction. The Supreme Court held to the

contrary, ruling that no such rule exists. Instead, the Court relied on its early case law to reach the

opposite conclusion—that continued possession "was not necessary to maintain jurisdiction over an

in rem forfeiture action."15 According to the Court, the well-settled rule is " "that jurisdiction, once

vested, is not divested, although a state of things should arrive in which the original jurisdiction could

not be exercised.' "16

          The Supreme Court did note, however, that there were exceptions to this rule, such as when

a judgment would be useless because of the loss of control over the res, or when the plaintiff

abandons a seizure.17 But in considering these exceptions, the Court noted that "[t]he fictions of in

rem forfeiture were developed primarily to expand the reach of the courts and to furnish remedies for

the aggrieved parties, ... not to provide a prevailing party with a means of defeating its adversary's

claim for redress."18 Thus, the exception that exists must relate to the two traditional concerns of

   14
        --- U.S. ----, 113 S.Ct. 554, --- L.Ed.2d ---- (1992).
   15
        Id. at ----, 113 S.Ct. at 558.
   16
    Id. at ---- - ----, 113 S.Ct. at 558. (quoting United States v. The Little Charles, 26 F.Cas.
979 (CC Va.1818)).
   17
        Id. at ----, 113 S.Ct. at 558.
   18
        Id. (emphasis added) (citations omitted).
jurisdiction: enforceability of judgment s and fairness of notice to the parties.19 Neither of these

concerns is implicated here, so neither we nor the district court before us was divested of jurisdiction

by the subsequent dispositions of the vehicles or of the proceeds of such dispositions.

C. Summary Judgment

              Having established that we continue to have jurisdiction over all four forfeited vehicles, we

now consider de novo whether the grant of summary judgment was proper. In its decision, the

district court set forth in detail the evidence presented by the government to show that it had probable

cause to institute a forfeiture action as to each of the four vehicles. The government's summary

judgment evidence, consisting of bank records, documentation obtained from the various car

dealerships, and evidence of the criminal convictions for violation of 31 U.S.C. § 5324(3), leaves no

doubt that the government had probable cause to believe that the vehicles were purchased in violation

of 31 U.S.C. § 5324 and thus were subject to forfeiture under 18 U.S.C. § 981(a)(1)(A).

              Once the government had introduced summary judgment evidence of that quality, the

claimants of the property, as non-movants, could not merely "rest upon the mere allegations or

denials of this adverse party's pleadings, but ... must set forth specific facts showing that there is a

genuine issue for trial."20 In fact, "[i]f unrebutted, a showing of probable cause alone will support a

forfeiture."21 Nevertheless, in their opposition to the summary judgment motion, the claimants failed

to follow the requirements of Rule 56(e), instead stating only: "Neither the pleadings, depositions

(none), answers to interrogatories (none), and admissions on file, together with the affidavits, show

that there is no genuine issue as to any material fact and that the Petitioner is entitled to judgment as

a matter of law. Claimants join issue with the Petitioner's allegations that the subject vehicles are

subject to seizure and forfeiture."

              Claimants insist, both in their brief and in their opposition to the summary judgment motion,

   19
        Id.
   20
        FED.R.CIV.P. 56(e).
   21
     LITTLE AL, 712 F.2d at 136; see One 1987 Mercedes 560 SEL, 919 F.2d at 331 (holding
that failure to refute the government's showing of probable cause results in forfeiture).
that genuine issues of material fact exist because Aracely Gabaldon and Herminia Carbajal were

acquitted of all the criminal charges filed against them and because Rene, Alfredo, and Carbajal have

appealed their convictions. As neither of these allegations rebut the government's evidence of

probable cause, much less show by a preponderance of the evidence that such evidence of probable

cause does not exist, we construe them as proffered affirmative defenses to forfeiture. Even when

we do that, however, we see that they are wholly without merit.

              As we have explained previously in civil forfeiture cases involving property purchased with

drug profits, "the burden of proof in a criminal trial differs from that involved in a forfeiture action.

The government need not prove beyond a reasonable doubt that a substantial connection exists

between the forfeited property and the illegal activity;" rather, probable cause is sufficient.22 Thus,

the subsequent acquittal of the claimant on the underlying criminal charges does not mean that the

government failed, ipso facto, to meet the more lenient probable cause requirement.23 Given both the

quantity and quality of the evidence produced by the government in the form of bank and car

dealership records, the subsequent acquittals of Aracely and Herminia do not undermine the finding

of probable cause. Similarly, given the weight of the other evidence, the mere pendency of the

appeals of the three convicted men are insufficient to cast doubt on the existence of probable cause.

D. Summary Judgment Evidence

              Redundantly, claimants also object to the use of the government's affidavits of the convictions

of Rene Gabaldon, Alfredo Gabaldon, and Pablo Carbajal as summary judgment evidence because

these convictions were being appealed. We need not address this issue though, as there is sufficient

evidence in the form of bank and car dealership records to support a finding of probable cause even

absent admissible evidence of those convictions. Moreover, a review of the district court's opinion

convinces us that the court assigned little probative value to the evidence of the convictions; thus,

any error would be harmless.

              For the foregoing reasons, the district court's grant of summary judgment is

   22
        One 1987 Mercedes 560 SEL, 919 F.2d at 331.
   23
        Id.
AFFIRMED.


                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             MAR 31 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                Clerk

 FIRST MARINE INSURANCE COMPANY,

          Plaintiff-Appellee,

 v.                                                           No. 98-6117
                                                              (W.D. Okla.)
 CHARLOTTE ANN GIBBS,                                  (D.Ct. No. CIV-96-1868-T)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *

Before ANDERSON, BRORBY, and MURPHY, Circuit Judges.

      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.

      Appellant Charlotte Ann Gibbs brings this appeal challenging the district

      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
court’s entry of summary judgment in favor of Appellee First Marine Insurance

Company (First Marine). Ms. Gibbs contends the district court erred in finding

she resided in the household of Mr. James Bibbs, the insured, and therefore is

subject to exclusion from coverage under Mr. Bibbs’ policy with First Marine.

We exercise jurisdiction under 18 U.S.C. § 1291 and affirm.

BACKGROUND

      Ms. Gibbs was injured in an accident on April 17, 1996, while riding as a

passenger in a boat owned and operated by Mr. Bibbs. Mr. Bibbs maintained an

insurance policy for the boat with First Marine, and the policy was in effect at the

time of the accident. After the accident Ms. Gibbs made a claim against First

Marine for bodily injuries she suffered. However, First Marine refused to pay

her claim and instead sued for a declaratory judgment in federal court arguing

Mr. Bibbs’ policy did not cover Ms. Gibbs because she resided in his household.

First Marine cited a specific clause in the policy expressly excluding coverage for

bodily injury to “any other regular resident of the insured’s household.”

      Meanwhile, collateral to the federal court proceedings, Ms. Gibbs sued Mr.

Bibbs personally for negligence in the District Court of Cleveland County,

Oklahoma. First Marine agreed to defend Mr. Bibbs in the state court lawsuit,

                                         -2-
promising to indemnify him under the terms and conditions of the policy but

noting also that a question remained concerning coverage under the policy for

Ms. Gibbs’ injuries. Before reaching the merits of the state case, the parties

decided to settle. They mutually agreed to dismiss Ms. Gibbs’ suit on the

condition that if First Marine did not prevail in its declaratory judgment action

against her in federal court, it would pay as if the state court had entered

judgment in Ms. Gibbs’ favor.

      Following resolution of the state court suit, the declaratory judgment

action in federal court continued with the parties filing cross-motions for

summary judgment. The district court granted First Marine’s motion determining

Ms. Gibbs and Mr. Bibbs resided in the same household and, therefore, the policy

excluded Ms. Gibbs from coverage. The district court based its decision on the

fact that although not romantically involved, Ms. Gibbs and Mr. Bibbs had lived

together and slept in the same house in Oklahoma City for approximately five

years before the accident occurred. Mr. Bibbs claimed his formal address was at

a separate house he owned in Midwest City, Oklahoma, where he continued to

receive mail and maintain electrical and telephone service. Nevertheless, because

Mr. Bibbs never inhabited the house and described it in his own words as

“unlivable,” the court found that Mr. Bibbs and Ms. Gibbs resided together as

                                          -3-
members of the same household in Oklahoma City at the time the accident

occurred.

       Ms. Gibbs now appeals claiming the district court erred in holding: (1)

First Marine is not estopped from denying coverage for her injuries because it

defended Mr. Bibbs in the state action without reservation of its rights; and (2)

Ms. Gibbs is excluded from coverage because she and Mr. Bibbs, the insured,

resided at the same household. In addition, Ms. Gibbs argues the evidence

regarding the question of whether she and Mr. Bibbs qualified as residents of the

same household at the time of the accident is conflicting and creates a question of

fact inappropriate for resolution through summary judgment.

DISCUSSION

       We review the district court’s entry of summary judgment         de novo

employing the same legal principles as the district court and construing the

factual record and the reasonable inferences therefrom in the light most favorable

to the party opposing summary judgment.        See Byers v. City of Albuquerque   , 150

F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is appropriate if the

record shows “no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);     Anderson v.

                                            -4-
Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). An issue of material fact is

genuine only if the nonmovant presents facts sufficient to show a reasonable jury

could find in favor of the nonmovant.       Liberty Lobby, 477 U.S. at 248. If our

inquiry reveals no genuine issue of material fact in dispute, then we review the

case to determine if the district court correctly applied the substantive law.   Kaul

v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). In this diversity action, we

apply the law of Oklahoma.       See Braun v. Annesley , 936 F.2d 1105 (10th Cir.

1991).

       As an initial matter, we must respond to Ms. Gibbs’ argument that First

Marine is estopped to deny coverage because it informed Mr. Bibbs it planned to

defend and indemnify him in the state action. As a general rule, only the insured

possesses standing to argue estoppel, and third parties may not raise the issue

unless they stand in the same position of potential prejudice as the insured.     See

Transamerica Ins. Co. v. International Broad. Corp.        , 94 F.3d 1204, 1208 (8th

Cir. 1996). However, it is unnecessary for us to address the issue of Ms. Gibbs’

standing to raise an estoppel claim because the argument fails whether asserted

by the insured or Ms. Gibbs as a third party. An insurer is not estopped from

denying coverage when it defends an insured if it also notifies him it is reserving

its right to later contest coverage.   Cf. Braun , 936 F.2d at 1110-11. The record

                                             -5-
clearly shows First Marine gave adequate notice to Mr. Bibbs of its dispute

regarding coverage in its letter to him dated August 6, 1996. In the letter, First

Marine informed Mr. Bibbs it had filed the declaratory judgment action

challenging its obligation to pay the claim for bodily injury made by Ms. Gibbs,

and described in some detail the legal process it was pursuing against her. First

Marine also expressly stated it felt “there is a question as to whether or not there

is liability coverage under the policy for damages sustained by Ms. Gibbs while a

passenger in [Mr. Bibbs’] boat.” In addition to the letter, Mr. Bibbs’ own

deposition testimony reflects the fact that he knew as a result of his dealings and

correspondence with First Marine that it questioned whether coverage extended

to Ms. Gibbs. Upon these facts, we agree with the district court that the

statements in the letter, combined with Mr. Bibbs own testimony showing his

actual knowledge of First Marine’s coverage dispute, sufficiently articulated a

reservation of rights and preserved First Marine’s right to deny coverage.

      We must now address the substance of this appeal and determine whether

the district court appropriately found Ms. Gibbs qualified as a “regular resident

of [Mr. Bibbs’] household” at the time of the accident and therefore properly

excluded from coverage under his policy with First Marine. The scope and

meaning of “household” and other terms within the context of the insurance

                                         -6-
policy, ordinarily depend on the precise language of the policy and the particular

circumstances present.   See Okla. Stat. tit. 36, § 3621 (“Every insurance contract

shall be construed according to the entirety of its terms”). However, in this case

the policy itself does not define “household” or give any guidance for

interpreting what persons fall within the scope of the term. Consequently, we

turn our attention to general definitions from accepted authorities to determine

the plain, ordinary meaning of the word “household.”

      Under Oklahoma law, the precise meaning of “household” is difficult to

ascertain. In Indemnity Ins. Co. of North America v. Sanders   , 36 P.2d 271 (Okla.

1934) the Oklahoma Supreme Court cited several definitions of “household,”

including one from Arthur v. Morgan , 112 U.S. 495, 499 (1884), where the

Supreme Court stated that “[p]ersons who dwell together as a family constitute a

‘household,’” and a definition from Webster’s New International Dictionary

stating a household consists of “[t]hose who dwell under the same roof and

compose a family.”   Sanders , 36 P.2d at 273.   See also Henderson v. Eaves , 516

P.2d 270, 274 (Okla. 1973). Building on this foundation, in    Hardesty v. State

Farm Mut. Auto. Ins. Co. , 361 F.2d 176, 177 (10th Cir. 1966), we validated as a

proper definition of a household under Oklahoma law, a jury instruction stating

that “for a place to be the household of one there must be therein a dwelling

                                          -7-
together as a family and said household must be supported by and under a single

head or management. In other words, persons who dwell together as a family

constitute a household.” All these traditional definitions of a household

consistently accentuate familial relationships as the common thread. However, it

is evident from more recent Oklahoma case law that a familial relationship may

no longer be required. In   Flitton v. Equity Fire & Cas. Co.   , 824 P.2d 1132, 1134

(Okla. 1992), the Oklahoma Supreme Court specifically states the

“[c]lassification of those individuals coming within the definition of a ‘family’ or

‘household’ is not necessarily dependent upon the presence of a connection by

affinity or consanguinity.” We believe    Flitton reflects the Oklahoma’s attempt to

broaden the traditional scope of what constitutes a “household” in order to adjust

to modern social trends and encompass other types of domestic relationships like

cohabiting unmarried couples who, while probably comprising a “household,”

might otherwise escape inclusion under the conventional definition of the term

and undermine the exclusion’s purpose to avoid the potential for unfair collusion

between the insured and the injured “household” member. With these principles

in mind, we distill the general definition of “household” under current Oklahoma

law for the purposes of the insurance policy at issue to constitute a home or

residential establishment consisting of people dwelling together under the same

roof, regardless of kinship by blood or marriage.

                                           -8-
      Applying this definition to our   de novo review of the facts presented, we

find Ms. Gibbs qualifies as a “regular resident” of Mr. Bibbs’ “household.” Ms.

Gibbs argues the exclusion clause in the insurance policy by its own terms cannot

apply to her because she is the head of her own household in a home she leases.

On this basis, Ms. Gibbs contends she is not and cannot be a “regular resident of

[Mr. Bibbs’] household.” However, the basic flaw in Ms. Gibbs’ reasoning is

that it equates “the insured’s household” with ownership of a place or location

rather than as a term connoting a domestic status or relationship of persons. In

other words, “household” is not synonymous with “house.” Simply because Ms.

Gibbs leases the house where she and Mr. Bibbs reside does not mean she cannot

be a member or resident of Mr. Bibbs’ household if they reside together under the

type of living arrangement or status enumerated in Oklahoma’s definition of

“household.” The fact that she owns or leases the premises in her name alone is

immaterial. As the record indicates, they had lived together and slept in the same

house for several years; Mr. Bibbs carried on his business from the house he

shared with Ms. Gibbs; and even though Mr. Bibbs owned another house, he

never actually resided there. Regardless of whether they were unrelated by blood

or marriage or that their relationship was not romantic, the fact remains they were

very good friends who enjoyed a close, personal relationship. Moreover, all

these facts strongly indicate the potential for collusion between Ms. Gibbs and

                                          -9-
Mr. Bibbs, which is precisely the type of unfair conduct the exclusion clause of

the policy is intended to alleviate. Mr. Bibbs testified in his deposition that he

willingly and freely gave Ms. Gibbs and her attorney the letter addressed directly

to him from First Marine dated August 6, 1996 that discussed the status and

certain strategic details of First Marine’s actions with regard to Mr. Bibbs’

policy. Sharing of this potentially confidential information hardly supports Ms.

Gibbs’ claim of an independent, detached living arrangement between them.

Accordingly, we find these facts sufficient to bring Ms. Gibbs and Mr. Bibbs

within Oklahoma’s definition of a “household” and support the district court’s

ruling in this matter.

      Finally, we are unpersuaded by Ms. Gibbs’ argument that the district court

must leave this question for a jury to decide. The facts relevant to the court’s

decision are undisputed and not susceptible to competing interpretations or

inferences. The district court appropriately found from the evidence presented

that Ms. Gibbs and Mr. Bibbs lived together for a substantial amount of time

under the same roof and shared, at a minimum, some sort of personal, informal

relationship. An examination of the record before us reveals no other evidence

sufficient to disturb this conclusion and create a genuine issue of material fact

with regard to whether Ms. Gibbs and Mr. Bibbs qualified as residents of the

                                         -10-
same household.

CONCLUSION

      Based on the facts in the record before us on appeal, we find Ms. Gibbs

was a regular resident of Mr. Bibbs’ household at the time of the accident.

Accordingly, we affirm the decision of the district court.

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge

                                        -11-


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                            U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                No. 05-15363
                                                                   May 5, 2006
                            Non-Argument Calendar              THOMAS K. KAHN
                          ________________________                 CLERK

                    D. C. Docket No. 05-00207-CR-T-26-MAP

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ALVERO BENITO CAICEDO KASQUETE,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                  (May 5, 2006)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

      Appellant Alvero Benito Caicedo Kasquete (“Kasquete”) appeals his 108-

month concurrent sentences imposed after pleading guilty to: (1) conspiracy to
possess with intent to distribute five kilograms or more of cocaine while on board

a vessel, in violation of 46 App. U.S.C. § 1903(a), (g), & (j) and 21 U.S.C.

§ 960(b)(1)(B)(ii) (Count 1); and (2) possession with intent to distribute five

kilograms or more of cocaine, in violation of 46 App. U.S.C. § 1903(a) & (g), 21

U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C. § 2.

      In May 2005, the United States Navy ship Rentz (“the Rentz”) was

patrolling in the Eastern Pacific Ocean. A helicopter dispatched from the Rentz

spotted a vessel and determined that it was the Colombian fishing vessel OFY

(“the OFY”). Naval officials tracked the OFY and observed it moving erratically

and changing its course multiple times. By the time the Rentz closed in on the

OFY, the OFY was engulfed in smoke and flames, and its eight crew members,

including Kasquete, boarded a smaller vessel. Law enforcement officials

extinguished the fire on the OFY and found 4,300 kilograms of cocaine concealed

in a hidden compartment. The officers then boarded the smaller vessel and

arrested the OFY’s crew members, including Kasquete. Ruceo Portocarrero

identified himself as the master of the OFY.

      On appeal, Kasquete argues that the district court erred in not granting him a

mitigating role reduction. He claims that he was just a crew member and did not

have any special skills. Kasquete dropped out of school when he was in second

                                          2
grade because he was very poor. Shortly after his arrest, he cooperated with the

government. He claims that his role in the conspiracy was less significant than that

of the major drug traffickers and owners of the drugs, and he had limited

knowledge of the scope of the conspiracy. Kasquete concludes that he was just a

“nautical mule,” and not the owner of the drugs or the organizer of the conspiracy.

       We have “long and repeatedly held that a district court’s determination of a

defendant’s role in the offense is a finding of fact to be reviewed only for clear

error.”1 United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).

Section 3B1.2 of the Sentencing Guidelines provides for a four-level decrease to a

defendant’s offense level if the defendant was a minimal participant in any

criminal activity and a two-level decrease if the defendant was a minor participant

in any criminal activity. U.S.S.G. § 3B1.2.

       A defendant who is a minimal participant is one who is plainly among the

least culpable of those involved in the conduct of a group. U.S.S.G. § 3B1.2,

comment. (n.4). A defendant is a minor participant if he is less culpable than most

other participants, but whose role can not be described as minimal. U.S.S.G.

       1
          In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court excised 18 U.S.C.
§ 3742(e), which established standards of review on appeal. However, this Court has held that
pre-Booker standards for reviewing application of the Sentencing Guidelines (i.e., findings of fact
for clear error, and questions of law de novo) still apply post-Booker. United States v. Crawford,
407 F.3d 1174, 1177-78 (11th Cir. 2005).

                                                3
§3B1.2, comment. (n. 5). In determining a defendant’s mitigating role in the

offense, the district court “must measure the defendant’s role against the relevant

conduct for which [he] was held accountable at sentencing . . . [and] may also

measure the defendant’s role against the other participants, to the extent they are

discernable, in that relevant conduct.” De Varon, 175 F.3d at 945. “The defendant

bears the burden of proving his minor role by a preponderance of the evidence.”

United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002). Where a drug

courier’s relevant conduct is limited to his own criminal act, a district court may

legitimately conclude that the courier played an important and essential role in that

crime. See DeVaron, 175 F.3d at 942-43. Furthermore, “the amount of drugs

imported is a material consideration in assessing a defendant’s role in [his] relevant

conduct.” See id. at 943. “[W]here the relevant conduct attributed to a defendant

is identical to [his] actual conduct, [he] cannot prove that [he] is entitled to a

[mitigating-role] adjustment simply by pointing to some broader criminal scheme

in which [he] was a minor participant but for which [he] was not held

accountable.” Id. at 941.

      Here, the record supports the district court’s finding that Kasquete’s role in

the relevant conduct was not minor or minimal. With respect to the first prong of

the DeVaron analysis, at sentencing, Kasquete was held accountable only for the

                                            4
4,300 kilograms of cocaine, a very large amount, which was the amount that the

OFY was transporting. Thus, Kasquete’s actual and relevant conduct were the

same, and, as such, the district court’s ruling was not clearly erroneous.

       With respect to the second prong of the DeVaron analysis, there is

insufficient evidence to show that Kasquete was a minor or minimal participant in

comparison to others. Here, the only persons identifiable from the evidence are

Kasquete and the seven other crew members of the OFY, one of whom was the

captain of the vessel.2 Kasquete offers no evidence in support of his claim that his

role was less significant than that of the major drug traffickers and owner of the

drugs. Additionally, Kasquete has provided no evidence that he was less culpable

than the other crew members of the OFY. Kasquete claims that he was no more

than a crew member and had no special skills, however, he has provided no

evidence showing that his responsibilities aboard the OFY were less vital to the

enterprise than those of any of the other crew members. To conclude, Kasquete

had the burden to prove he played a mitigating role, and the district court did not

clearly err in finding that he did not meet his burden. Therefore, we affirm his

sentence.

       AFFIRMED.

       2
        The captain of the OFY, Portocarrero, received a two-level enhancement pursuant to
U.S.S.G. § 2D1.1(b)(2)(B) because he was the captain. (See United States v. Portocarrero, Case
No. 05-15448-CC) (a related case).

                                              5