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Evelyn Poquez v. Suncor Holdings - Copii

September 15, 2011




Plaintiff Evelyn Poquez ("Plaintiff") has filed a Second Amended Complaint against defendants Suncor Holdings - COPII, LLC ("Suncor"), GSM Partners, LLC ("GSM"), Tower Energy Group ("Tower"), and Does 1 through 20, bringing a claim for violation of 20 the Petroleum Marketing Practices Act, 15 U.S.C. § 2801, et seq. ("PMPA"), as well as state and common law claims for specific 22 performance and declaratory relief. ECF No. 26 ("SAC"). Suncor, GSM, and Tower (collectively, "Defendants") filed a Motion to Dismiss for failure to state a claim and lack of subject matter 25 jurisdiction, which is fully briefed. ECF Nos. 29 ("Mot."), 30 ("Opp'n"), 32 ("Reply"). For the reasons stated below, the Court GRANTS Defendants' Motion and dismisses this action WITH PREJUDICE.

motion, the Court assumes the truth of the well-pleaded facts in Plaintiff's SAC. Plaintiff alleges that she operates a Union 76 5 branded motor fuel station in San Francisco, California. SAC ¶ 1.


As it must on a Federal Rule of Civil Procedure 12(b)(6)

Defendants became the leasor and franchisor of the fuel station 7 through a 2005 bulk sale. Id. ¶¶ 1, 5, 14. The bulk sale 8 agreement provides for PMPA compliance and also states that the 9 lease dealer has a right of first refusal to purchase the property.

agreement with defendant GSM, the "Assignment of First Refusal," 12 giving Plaintiff the exclusive option to purchase the premises at 13 the appraised value. Id. ¶ 16. The agreement was allegedly 14 reaffirmed in a May 2006 agreement among the parties. Id. ¶ 17.

Notice of Non-renewal of Plaintiff's dealership franchise agreement.

7, 2011 and the parties entered into a new three-year franchise 19 agreement that commenced March 2011 and expires February 2014. SAC 20

¶ 23. Plaintiff alleges this agreement was a "sham" since the 21 underlying lease expires in February 2012, two years prior to the 22 expiration of the renewed franchise agreement. Id. Defendant Tower had notified Plaintiff about the expiration of the underlying 24 lease before the parties renewed the franchise agreement. See SAC

On February 9, 2011, Defendants informed Plaintiff that she had four days to match a third party offer from "Strada" to 28 purchase the property for $3.2 million. Id. ¶ 24. Two days later, Id. ¶ 14. On or around June 30, 2005, Plaintiff entered into an

On or around November 24, 2010, Defendants sent Plaintiff a Id. ¶ 21. Defendants withdrew the Notice of Non-renewal on February

Ex. 13 at 1.

Plaintiff requested an appraisal of the property, but Defendants 2 allegedly refused to respond. Id. ¶ 26. The Strada deal 3 apparently fell through and, in April 2011, Forest City West, LLC 4

("Forest City"), a national real estate developer, acquired the 5 property from defendant Suncor. Id. ¶ 27. Plaintiff alleges that 6 she was never given the opportunity to purchase the property on the 7 same terms and conditions as Forest City. Id. She also contends 8 that Forest City intends to develop the subject property and will 9 terminate the franchise and evict her when the underlying lease 10 expires in February 2012. Id.

On January 21, 2011, Plaintiff commenced this action,

12 contending Defendants' November 2010 Notice of Non-renewal violated 13 the PMPA because Plaintiff never received written notice of the 14 duration of the underlying lease before beginning the term of her 15 franchise agreement. ECF No. 1 ("Compl.") ¶¶ 17-18. The Court 16 dismissed Plaintiff's Complaint without prejudice, finding that 17

Defendants' withdrawal of the Notice of Non-renewal and subsequent 18 assent to a new three-year franchise agreement mooted Plaintiff's 19 claims. 20

21 by (1) failing to provide Plaintiff with forty-five days to 22 exercise her right of first refusal to purchase the property; (2) 23 denying Plaintiff's alleged right of first refusal to purchase the 24 property and selling it to Forest City; (3) issuing Plaintiff a 25 sham three-year lease; and (4) selling the property to Forest City, 26 allegedly knowing that the developer will terminate the underlying 27 lease and evict the Plaintiff. SAC ¶ 30. Plaintiff also asserts 28 state law claims for specific performance and declaratory relief.

In the SAC, Plaintiff claims that Defendants violated the PMPA Id. ¶¶ 40-48. 2

Plaintiff seeks an injunction enjoining Defendants from selling the subject property or terminating and/or non-renewing Plaintiff's franchise; an order compelling Defendants to provide an 5 appraisal of the property; compensatory damages under the PMPA; 6 exemplary damages to deter future violations; restitution and 7 disgorgement of illegally gained profits; a declaration regarding 8 the parties' rights and obligations under the PMPA and various 9 factual and legal allegations in the SAC; and attorneys' fees and 10 costs. Id. at 15-18.

Defendants contend that Plaintiff cannot state a claim for 12 violation of the PMPA because her franchise agreement has not been 13 terminated or not renewed. Mot. at 2. Defendants also argue that 14 the Court lacks subject matter jurisdiction because Plaintiff's 15 claims for violations of the PMPA fail as a matter of law. Id. 16

With respect to Plaintiff's state law claims, Defendants contend 17 that Plaintiff has failed to plead facts sufficient to state a 18 claim for specific performance and that Plaintiff's claim for 19 declaratory relief is superfluous. Id. Additionally, Defendants 20 contend that, because the court lacks jurisdiction over Plaintiff's 21 claim for violation of the PMPA, ...

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