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Dixie Gas & Food, Inc. v. Shell Oil Co.

March 3, 2008

DIXIE GAS & FOOD, INC. AND BW SERVICES, INC. D/B/A HICKORY HILLS SHELL, PLAINTIFFS,
v.
SHELL OIL COMPANY, EQUILON ENTERPRISES, LLC D/B/A SHELL OIL PRODUCTS US, AND EQUIVA SERVICES, LLC, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Defendants Shell Oil Company ("Shell"), Equilon Enterprises, LLC d/b/a Shell Oil Products US ("Equilon"), and Equiva Services, LLC ("Equiva") (collectively "Shell Defendants") have filed a motion for summary judgment. For the reasons stated below, the motion is granted.

I. BACKGROUND

A group of eight gas station operators filed suit against Shell Defendants on November 17, 2003. The plaintiffs alleged that they were Shell franchisees and that Shell Defendants engaged in various practices in an attempt to force the franchisees to convert to company-operated stations. The practices included allegedly charging franchisees higher rent and gas prices than were charged to operators of company-owned stations. After the court dismissed some counts on Shell Defendants' motion, the plaintiffs filed a five-count amended complaint on July 27, 2005, alleging violations of federal antitrust and various Illinois state laws.

During the last four-plus years of litigation, six of the eight plaintiffs have been dismissed, by stipulation or for failure to prosecute.*fn1 Since January 2007, the two remaining plaintiffs, Dixie Gas & Food, Inc. ("Dixie") and BW Services, Inc. d/b/a Hickory Hills Shell ("BW") (collectively "Plaintiffs"), have continued to prosecute the case. Discovery proceeded, with some difficulties,*fn2 and closed on February 28, 2006. Of the remaining four counts,*fn3 Dixie and BW have elected not to pursue the First Claim (Robinson-Patman Act) and Second Claim (common law fraud). Pls.' Resp. to Mot. for Summ. J. at 1 n.1. Thus, two counts remain: the Third Claim for violation of the Illinois Franchise Disclosure Act, 815 Ill. Comp. Stat. 705/1-44 ("IFDA"), and the Fifth Claim for violation of the Illinois Uniform Commercial Code, 810 Ill. Comp. Stat. 5/2-305 ("Illinois UCC").*fn4

II. ANALYSIS

A. Legal Standard

Summary judgment is appropriate when the record reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). It is not appropriate if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In seeking a grant of summary judgment the moving party must identify "those portions of 'the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325.

In response, the non-moving party cannot rest on the pleadings, but must designate specific material facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. When considering a motion for summary judgment, the court must view the record and any inferences to be drawn from it in the light most favorable to the opposing party. See Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991). However, a court is "not required to scour the record in search of evidence to defeat the motion; the nonmoving party must identify with reasonable particularity the evidence upon which the party relies." Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007) (citing Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir. 2003)).

B. Arguments

Shell Defendants have moved for summary judgment on the remaining two claims of Plaintiffs' complaint. With respect to the Third Claim, violation of the IFDA, Shell Defendants argue that Plaintiffs: (1) cannot prove standing because they cannot prove they paid a franchise fee, a threshold issue to IFDA applicability; and (2) cannot prove damages beyond a speculative level. For the Fifth Claim, violation of the Illinois UCC, Shell Defendants claim that Plaintiffs:

(1) have no evidence of discriminatory pricing; (2) cannot prove they provided notice of non-conformity of goods to Shell Defendants; and (3) cannot avoid the contract price for accepted goods. Shell Defendants also ask the court to disregard an affidavit Plaintiffs filed with their response to the motion for summary judgment.

1. Plaintiffs' Affidavit

With their response to Shell Defendants' motion for summary judgment, Dixie and BW filed a sixteen-paragraph affidavit with five exhibits (the "Affidavit"). The affiant is Abdul Basit ("Basit"), who is the Vice President of Dixie and the President of BW. See Pls.' Statement of Facts, Basit Aff. ΒΆ 1. Because the Plaintiffs rely heavily on the affidavit and its ...


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