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Al's Service Center, Inc. v. BP Products North America

June 1, 2009

AL'S SERVICE CENTER, INC., AND KEVIN FINNEGAN, PLAINTIFFS,
v.
BP PRODUCTS NORTH AMERICA, DEFENDANT.



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

Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiffs Al's Service Center, Inc. ("Al's") and Kevin Finnegan ("Finnegan") filed a one-count fifth-amended complaint against defendant BP Products North America ("BP"). Plaintiffs allege that defendant violated the Petroleum Marketing Practices Act ("PMPA"), 15 U.S.C. § 2801-2806. The Court previously granted plaintiffs a temporary restraining order and preliminary injunction. Before the Court are the parties' cross motions for summary judgment and plaintiffs' motions to strike. For the reasons set forth below, the Court denies plaintiffs' motions to strike. The Court denies plaintiffs' motion for summary judgment and grants defendant's motion for summary judgment.

I. Background

a. Motion to Strike and Evidentiary Objections

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. Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party's brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed. Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with 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). It is not enough at the summary judgment stage for either party to say a fact is disputed. The Court considers a fact disputed only if both parties put forth admissible evidence of his or its version of the fact. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court. The Court enforces Local Rule 56.1 with respect to both parties regardless of whether either party moves to strike non-complying portions, because the purpose of the rule is to make the Court's job manageable, not to give litigants additional ammunition to use against one another.

Plaintiffs filed two motions to strike. Plaintiffs want to strike the declarations of Lisa Freeman ("Freeman") and various exhibits. This the Court will not do. The Court need not take the time to strike that which it can simply ignore. Plaintiffs' motions to strike are denied. The Court will, however, rule on the evidentiary objections contained within the motions to strike.

First, plaintiffs object to portions of Freeman's declarations on the grounds that they lack foundation. The Federal Rules of Evidence require foundation for testimony. Rule 602 of the Federal Rules of Evidence provides that a "witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." See Fed. R. Evid.602. Thus, in an affidavit, a statement that a witness knows something, without statements about how the witness knows that something, is not admissible. See Ward v. First Federal Savings Bank, 173 F.3d 611, 618 (7th Cir. 1999); Drake v. 3M, 134 F.3d 878, 887 (7th Cir. 1998). For example, in Freeman's declaration, she states that "[t]hroughout the summer of 2005, Mr. Finnegan continued to operate his station." Nowhere in the declaration does Freeman state how she knows this. The Court has ignored this and all other statements that lack foundation.

Next, plaintiffs object to the admissibility of a number of defendant's exhibits. Specifically, plaintiffs objects that C, D and J are inadmissible hearsay. Defendant failed to include an affidavit authenticating the documents and establishing how they come within an exception (such as the business record exception) to the hearsay rule. Accordingly, the Court sustains plaintiffs' objections as to the admissibility of those exhibits. See Woods v. City of Chi, 234 F.3d 979, 988 (7th Cir. 2001) ("Normally, . . . at the summary judgment stage, a party seeking to offer the business record must attach an affidavit sworn to by a person who would be qualified to introduce the record as evidence at trial.").

B. Facts Relevant to the Motion

The following facts are undisputed unless otherwise noted.

Plaintiff Kevin Finnegan ("Finnegan") once operated plaintiff Al's Service Center, Inc. ("Al's"), a gas and service station on Butterfield Road in Oak Brook Terrace, Illinois. Finnegan operated Al's for more than thirty years until May 1, 2008.

For most of those thirty years, plaintiffs leased the station and the land upon which the station is located from Amoco, which owned the land and the station. The lease agreements also allowed plaintiffs to sell gas under the Amoco name. By 1998, Amoco had merged with BP. The Dealer Lease and Supply Agreement plaintiffs signed on or about October 24, 2002 was with BP.

During the thirty or so years that plaintiffs were in business, Finnegan developed Al's into a full-service station. He added an automatic car wash, repaired vehicles, offered 24-hour towing and operated a retail convenience store.

In early 2001, BP considered buying Al's from Finnegan. By late February 2001, BP had developed a site plan that included a proposed new structure and parking lot. Plaintiffs say, and defendant disputes, that in the spring of 2002, BP offered to pay Finnegan $500,000 to buy out the lease on Al's, an offer which plaintiffs rejected. On October 24, 2002, the parties signed a new lease that was set to expire July 31, 2005.

On or about October 15, 2002, the Illinois Department of Transportation ("IDOT") sent a letter to BP. The letter advised BP that IDOT was planning to widen and resurface Illinois Highway 56 and that the project would require IDOT to acquire by eminent domain a portion of the property BP leased to plaintiffs. The letter said that if BP did not ...


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