Poquez v. Suncor Holdings - COPII LLC et al

Filing 22

ORDER GRANTING PLAINTIFF LEAVE TO FILE A SURREPLY RE: 8 MOTION to Dismiss for Lack of Jurisdiction filed by GSM Partners LLC, Suncor Holdings - COPII LLC (sclc1, COURT STAFF) (Filed on 5/26/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EVELYN POQUEZ,

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) Case No. 11-328 SC
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) ORDER RE: DEFENDANTS'
) MOTION TO DISMISS
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Plaintiff,
v.

For the Northern District of California

United States District Court

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SUNCOR HOLDINGS - COPII, LLC; GSM
PARTNERS, LLC; and TOWER ENERGY
GROUP,
Defendants.

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Plaintiff Evelyn Poquez ("Plaintiff") commenced this action

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against Defendants Suncor Holdings - COPII, LLC ("Suncor"), GSM

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Partners, LLC ("GSM"), and Tower Energy Group ("Tower") bringing a

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claim of violation of the Petroleum Marketing Practices Act, 15

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U.S.C. §§ 2801-06 ("PMPA"), as well as state law claims for

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specific performance and declaratory relief.

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Now Suncor and GSM (collectively, "Defendants") have filed a motion

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to dismiss Plaintiff's action for failure to state a claim upon

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which relief can be granted and for lack of subject matter

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jurisdiction.

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ECF Nos. 16 ("Opp'n"), 17 ("Reply").

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the Court DEFERS ruling on Defendants' Motion and gives Plaintiff

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leave to file a surreply.

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ECF No. 8 ("Mot.").

ECF No. 1 ("Compl.").

This Motion is fully briefed.
For the following reasons,

Plaintiff alleges the following facts in her Complaint.

Since

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1985, she has owned and operated a Union 76-branded motor fuel

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service station in San Francisco.

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the real property on which Plaintiff's station stands.

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GSM is Suncor's parent entity.

Compl. ¶¶ 1, 13.

Suncor owns
Id. ¶ 2.

Id. ¶ 3.

Until 2005, Plaintiff operated this service station under a

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franchise agreement with Plaintiff's former franchisor,

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ConocoPhillips.

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Plaintiff's service station to GSM, Suncor, and Tower, a fuel

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supplier or "jobber," as part of a bulk sale transaction.

Id. ¶ 14.

Around this time, ConocoPhillips sold

Id. ¶¶

United States District Court

For the Northern District of California

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4-5.

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into a written agreement with GSM, which gave Plaintiff the

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exclusive option to purchase the service station's premises.

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15.

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Plaintiff alleges that around June 2005, Plaintiff entered

Id. ¶

Plaintiff alleges that around November 24, 2010, Defendants

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sent Plaintiff a Notice of Nonrenewal of Plaintiff's franchise

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agreement.

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Nonrenewal violates the PMPA because Plaintiff never received

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written notice of the duration of the underlying lease before the

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beginning of the term of her franchise agreement.

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Id. ¶ 17.

Plaintiff alleges that this Notice of

Id. ¶¶ 17-18.

The PMPA prohibits gasoline refiners and distributors from

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terminating a franchise -- or failing to renew a franchise --

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unless certain conditions are satisfied and at least one of several

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enumerated grounds for termination and/or nonrenewal exists.

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U.S.C. § 2802.

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"defendants attempted to illegally terminate her lease in violation

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of the PMPA, but quickly rescinded the notice after the filing of

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this Complaint, realizing the termination was in violation of the

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PMPA."

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In her Opposition, Plaintiff claims that

Opp'n at 6.

Plaintiff states that Defendants renewed

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Plaintiff's lease for three years in response to this action.

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at 7.

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Id.

The crux of Defendants' Motion is that no franchise

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relationship exists between Plaintiff and Defendants, and thus the

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PMPA is inapplicable.

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parties cite to out-of-circuit case law, as there is no in-circuit

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precedent on this issue.

See Mot.

Plaintiff argues otherwise.

Both

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Defendants also argue -- for the first time in their Reply --

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that Plaintiff's concession that she entered into a new three-year

United States District Court

For the Northern District of California

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franchisor/franchisee agreement moots this action.

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Defendants cite a recent U.S. Supreme court case, Mac's Shell

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Service, Inc. v. Shell Oil Products, Co. LLC, 130 S. Ct. 1251, 1263

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(2010), for the proposition that "a franchisee who is offered and

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signs a renewed franchise agreement cannot maintain a claim for

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unlawful nonrenewal under the PMPA."

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Reply at 5.

Reply at 5.

The Court finds merit in Defendants' argument.

However,

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because it was raised for the first time in Defendants' Reply, the

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Court grants Plaintiff leave to file a surreply in response.

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Should she choose to file a surreply, it must be filed within seven

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days of the date of this Order, be no longer than ten pages in

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length, and otherwise comport with this district's Civil Local

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Rules.

Accordingly, the Court DEFERS ruling on this Motion.

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IT IS SO ORDERED.

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Dated: May 26, 2011
UNITED STATES DISTRICT JUDGE

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