Marathon has met its burden and Duff has failed to raise a genuine issue of material fact.
II. Failure to Maintain and Improve the Station
Finally, Duff alleges that as part of its scheme to terminate his franchise Marathon refused to make necessary repairs and improvements to his station. Duff alleges that Marathon provided maintenance, repair and modernization to other dealers in Illinois but refused to do the same for him. He contends that his station was unappealing to customers because it was not adequately maintained or modernized and as a result he sold less gas and related products and services, thereby driving up the cost of his rent.
Duff appears to be alleging that Marathon refused to improve and repair his station in an attempt to constructively terminate his franchise. While the PMPA does not explicitly recognize that conduct short of an actual termination or nonrenewal will subject a franchisor to PMPA scrutiny, this type of claim has been recognized by the courts. See DuFresne's Auto Serv., Inc. v. Shell Oil Co., 992 F.2d 920, 927 (9th Cir. 1993). Franchisees who allege constructive termination must comply with the PMPA's one-year limitations period. Id. Thus, for Marathon's conduct to be actionable under the PMPA, Duff was obligated to bring suit within one year after the later of (1) the date of termination or nonrenewal, or (2) the date the franchisor fails to comply with the requirements of §§ 2802 or 2803 of the Act. 15 U.S.C. § 2805(a). Because Duff did not file this claim until December 1991, his claims for failure to repair or improve from 1985 to December 1990 are barred by the PMPA's limitations period. Accordingly, Duff can only challenge Marathon's conduct from January to December 1991.
Marathon cannot be held liable if the alleged failure to repair and modernize was due to determinations made in good faith and in the ordinary course of business. See 15 U.S.C. § 2802(b)(3)(A). Marathon has submitted documents which show that it spent $ 7,749.22 for maintenance, repair and improvements to Duff's station in 1991. It is true that greater sums of money were spent on some of the other stations. However, more money was spent on Duff's station than on 15 of the 47 other Illinois district stations. Moreover, several stations received nothing by the way of repairs or improvements in 1991. Even more telling is a look at 1990, where Marathon spent $ 37,344.21 on Duff's station. This was more than was spent on 38 of the 47 other Illinois district stations. This does not mean that Marathon made all the improvements or performed all the repairs that Duff felt were necessary. However, under the PMPA, Marathon need not demonstrate that it complied with all of Duff's requests, it need only show that it treated Duff in the same manner as its other dealers. This Marathon has done.
Duff alleges that Marathon modernized several stations located near him (we are not told when) but refused to modernize his station. However, there is no evidence that suggests that Duff's station was the only one Marathon failed to modernize. On the contrary, the evidence shows that Duff fared better than many other dealers in terms of repairs and improvements. In the absence of any evidence that Duff was singled out for the improper denial of repairs and improvements, this court cannot find that a genuine issue of material fact exists.
Marathon's motion for summary judgment is granted.
JAMES B. MORAN,
Chief Judge, U.S. District Court
April 7, 1994.