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CHOWDHURY v. MARATHON OIL CO.

January 16, 1997

ABU CHOWDHURY, Plaintiff,
v.
MARATHON OIL COMPANY, Defendant.



The opinion of the court was delivered by: DENLOW

 Plaintiff, Abu Chowdhury (hereinafter "Chowdhury") brings a third amended complaint in two counts against defendant Marathon Oil Company (hereinafter "Marathon"). On January 11, 1996 this Court granted Marathon's motion to dismiss the antitrust claim in the second amended complaint. See Chowdhury v. Marathon Oil Company, 1996 U.S. Dist. LEXIS 387, 1996 WL 19584 (N.D. Ill. 1996). Plaintiff has now dropped his antitrust claims. Count I alleges that Marathon's decision denying Chowdhury a franchise was based on his race, religion, and national origin in violation of 42 U.S.C. § 1981 and 1982. Count II is a state law claim alleging that Marathon tortiously interfered with Chowdhury's prospective economic advantage. For the reasons set forth below the Court grants Marathon's motion for summary judgment as to both counts.

 I. BACKGROUND FACTS

 Marathon markets branded gasoline to the public through (1) lessee-dealers (Marathon owns or leases the real estate, and leases the property to independent dealers), (2) sellers (who own the real estate), (3) and jobbers (who typically own or lease numerous retail locations). (Defendant's Rule 12 M Statement of Material Facts ("12 M") PP 5 and 6).

 In 1994, Charles Stronach ("Stronach") was operating a car wash, gas station and food mart at 701 N. Independence, Romeoville, Illinois ("Romeoville Station") as a lessee-dealer of Marathon. The land at the Romeoville Station was owned by Marathon and was leased to Stronach by Marathon. The Service Station Lease ("Lease") between Stronach and Marathon, dated December 10, 1992, was for a three-year term from April 1, 1993 to March 31, 1996. The Lease contained the following provision:

 
[P 13] B. Assignment. Lessee agrees not to assign, mortgage, pledge or otherwise transfer, voluntarily or by operation of law, this Lease or sublet the Premises or any part thereof, without the prior written consent of Marathon.

 Stronach was authorized by Marathon to operate the business as a Marathon branded unit. (12M PP 7-11).

 On or about May 4, 1994, Chowdhury entered into a written Agreement for Transfer of Assets ("Agreement") with Stronach to purchase the Romeoville station. The agreement between Chowdhury and Stronach provided for the payment of $ 5,000 down, $ 35,000 at closing and an additional $ 50,000 payable over five years. The Agreement between Chowdhury and Stronach included the following conditions:

 
16. Conditions of Agreement. The parties agree that this Agreement is expressly contingent upon the occurrence of the following:
 
f. Purchaser obtaining, by the date of closing, a lease for the Business premises from Marathon Petroleum on terms and conditions acceptable to Purchaser. If Purchaser does not obtain said lease by that date, this Agreement is voidable by Purchaser or seller, upon written notice to the other, and all money paid by Purchaser shall be returned.
 
g. Purchaser obtaining, by the date of closing approval as a franchisee from Marathon Petroleum on terms and conditions acceptable to Purchaser. If Purchaser does not obtain said approval by that date, this Agreement is voidable by Purchaser or Seller, upon written notice to the other, and all money paid by Purchaser shall be returned.

 However, Chowdhury was not granted the Romeoville Marathon station and his Agreement with Stronach was voided. Instead, Stronach sold his business assets and the balance of his lease to Marathon in exchange for an initial payment of $ 81,000 and an additional $ 9,000 one year later. (12M PP 12-20). Marathon purchased the station in order to continue the business as a Marathon owned and controlled operation.

 Emro, a wholly owned subsidiary of Marathon Oil Company, looks out for and acquires real estate suitable for the operation of Speedway Stations. In that regard, it looks for properties capable of generating a high volume of gasoline and convenience store sales and profits for Emro. One of the potential sources of such real estate suitable for the operation of Speedway Stations is real estate owned by Marathon Oil Company, the parent company of Emro Marketing Company. If a lessee-dealer of Marathon decides voluntarily to give up the station property, Marathon will then bring ...


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