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Rawoof v. Texor Petroleum Co.

February 8, 2006


The opinion of the court was delivered by: Judge George M. Marovich


Plaintiff Mohammed Rawoof ("Rawoof") filed a two-count complaint against defendant Texor Petroleum Company ("Texor"). Rawoof claimed that Texor violated the Petroleum Marketing Practices Act ("PMPA"), 15 U.S.C. § 2801, et seq. Nearly two years after filing the suit and on the last day of discovery, Rawoof moved for an order allowing him to substitute SHL, Inc., a corporation which Rawoof described as the real party in interest. The Court denied the motion for substitution on the grounds that it would be unduly prejudicial to defendant. Defendant has now moved for summary judgment (1) with respect to plaintiff's claims on the grounds that plaintiff lacks standing and (2) with respect to attorneys' fees. For the reasons set forth below, the Court grants in part and denies in part defendant's motion for summary judgment.

I. Background

A. The Petroleum Marketing Practices Act

"Congress enacted the PMPA to address the disparity in bargaining power then existing between franchisors (typically major oil companies) and franchisees in the petroleum industry[.]" Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 855 (7th Cir. 2002). A franchisee is a "retailer or distributor (as the case may be) who is authorized or permitted, under a franchise, to use a trademark in connection with the sale, consignment, or distribution of motor fuel." See 15 U.S.C. § 2801(4). The PMPA prohibits franchisors from terminating a franchise unless the franchisor both (a) terminates the franchise for one of the reasons allowable under the statute and (b) complies with the statute's notice requirements. See 15 U.S.C. §§ 2802(b), 2804. The PMPA provides a private right of action to the franchisee when a franchisor violates § 2802. See 15 U.S.C. § 2805. Rawoof alleged in his complaint that Texor terminated his franchise without just cause and without proper notice.

B. Procedural Background

Two years after filing the case and on the day that discovery was scheduled to close, Rawoof filed a motion to substitute SHL, Inc. for himself as plaintiff. Rawoof argued that SHL, Inc. was the real party in interest and should be substituted. The Court, for two main reasons, ruled that it was too late to substitute a new plaintiff. In its opinion (the "Rule 17 opinion"), the Court first noted that all of the information necessary to ascertain the real party in interest was in the plaintiff's hands before he filed suit. Second, the Court concluded that defendant would be prejudiced by the substitution given that (a) discovery was set to close and (b) Rawoof (who was said to be the sole shareholder and officer) had passed away, thereby eliminating defendant's chance to take his Rule 30(b)(6) deposition.

To be clear, in its Rule 17 opinion, the Court did not rule on whether Rawoof (or SHL, Inc., for the matter) had standing to pursue the PMPA claims. Despite defendant's attempt to paint the Rule 17 opinion as a decision on the standing issue, plaintiff is correct that the Court has yet to make a determination on that issue. The Court determined only that it was too late for plaintiff to avail himself of the benefits of Rule 17 of the Federal Rules of Civil Procedure.

C. Summary Judgment Evidentiary Issues

Before the Court discusses the disputed and undisputed facts, it reiterates the importance of complying with Local Rule 56.1. Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. As the Court notes on its website (and has mentioned in multiple opinions), the Court enforces Local Rule 56.1 strictly. See Thomas v. CitiMortgage, Inc., Case No. 03 C 6177, 2005 WL 1712266 at *1 n. 1 (N.D. Ill. Jul. 20, 2005); Perez v. City of Batavia, Case No. 98 C 8226, 2004 WL 2967153 at *10 (N.D. Ill. Nov. 23, 2004); see also Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). Facts that are argued but do not conform with the rule are not considered by the Court.

Defendant complains that plaintiff has denied many of defendant's facts without putting forth admissible evidence and, thus, that many of defendant's facts should be deemed admitted. Defendant is correct that where one party supports a fact with admissible evidence and the other party denies the fact without citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). This, however, does not absolve defendant of its initial burden of putting forth admissible evidence to support its facts. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court. Among the types of evidence admissible for summary judgment purposes are admissions a party makes in a brief or motion to a court. See Fed. R. Civ. P. 56(c) ("The judgment sought shall be rendered forthwith 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 a judgment as a matter of law.") (emphasis added); Woods v. City of Chi., 234 F.3d 979, 989 (7th Cir. 2000) ("An 'admission' includes 'anything which is in practical effect an admission' including statements made in a brief presented to the district court[.]") (internal citations omitted).

Two facts are undisputed. SHL, Inc. is the real party in interest. Any injury suffered by Rawoof at the hands of Texor was indirect (by virtue of his status as a shareholder of SHL, Inc.).*fn1

Two facts are disputed. First, according to plaintiff, on February 15, 2005, SHL, Inc. issued a resolution ratifying Rawoof's filing of this suit. Second, according to plaintiff, SHL, Inc. has agreed to be bound by any determination made in this case. The defendant disputes these facts with an admission by plaintiff that Rawoof was the sole shareholder and officer of SHL, Inc. That evidence contradicts plaintiff's facts because, for reasons that are irrelevant here, the truth of ...

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