United States District Court, D. Massachusetts
NEIL E. TIERNEY, Plaintiff,
JOHN GAUDRAULT, MICHAEL R. SOBON, O'CONNELL OIL ASSOCIATES, INC, GLOBAL MONTELLO GROUP CORP, and LPJ DONUTS, INC., Defendants.
REPORT AND RECOMMENDATION REGARDING MOTION OF
DEFENDANTS, JOHN GAUDRAULT, MICHAEL R. SOBON, O'CONNELL
OIL ASSOCIATES, INC., AND GLOBAL MONTELLO GROUP CORP. TO
DISMISS AND PLAINTIFF'S MOTIONS FOR
JUDGMENT ON THE PLEADINGS AND FOR INJUNCTIVE RELIEF
(DKT. NOS. 15, 21, 26)
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE
Neil Tierney (“Plaintiff”), appearing pro se,
filed suit against John Gaudrault (Gaudrault), Michael R.
Sobon (Sobon), O'Connell Oil Associates, Inc., and Global
Montello Group Corp. (collectively,
“Defendants”), as well as against LPJ Donuts,
Inc., alleging jurisdiction under the Petroleum Marketing
Practices Act (PMPA), 15 U.S.C. §§ 2801-2805.
Plaintiff operated a convenience store and gas station at
premises owned by some or all of the defendants. The
four-paragraph complaint alleges claims related to
Plaintiff's loss of his franchise and a related loss of
income from a Dunkin Donuts that operated in the convenience
store. On January 26, 2018, Defendants filed a motion seeking
dismissal of Plaintiff's case based, in part, on the
statute of limitations (Dkt. No. 15). On February 23, 2018,
Plaintiff filed a motion for judgment on the pleadings (Dkt.
No. 21), and on July 25, 2018, he filed a motion for
injunctive relief (Dkt. No. 26).
August 1, 2018, Defendants' and Plaintiff's motions
were referred to the undersigned for report and
recommendation (Dkt. No. 27). See 28 U.S.C. §
636(b)(1). The court heard argument on the motions on
September 13, 2018, and took the matter under advisement
(Dkt. No. 30). For the reasons set forth below, the
undersigned recommends that Defendants' motion to dismiss
be allowed in part and that the remaining claims in the case
be dismissed without prejudice. If the recommendation with
respect to dismissal of Plaintiff's remaining claims is
not adopted, the undersigned recommends that Plaintiff's
motions be denied.
case is the second filed in this court between Plaintiff and
Defendants (excluding LPJ Donuts). The earlier suit has some
relevance to Defendants' arguments in support of
dismissing the current one, so the court will review events
in the first case as background.
The 2016 Lawsuit
26, 2016, O'Connell Oil Associates filed suit against
Plaintiff and his company, Whiting Farms Convenience Stores,
Inc. (WFCS), alleging breach of contract and seeking
declaratory, preliminary, and permanent injunctive relief
arising from the parties' franchise relationship.
O'Connell Oil Assocs., Inc. v. Whiting Farm
Convenience Stores, Inc., No. 3:16-cv-30083 (D. Mass.
filed May 26, 2016). The action, which O'Connell Oil
Associates dubbed the “Termination Action, ”
alleged that WFCS and Plaintiff owed over $1.6 million in
overdue payments, rent, and loan payments arising from the
Motor Fuel Station Lease and Dealer Agreement between the two
parties. O'Connell Oil Associates issued a Notice of
Franchise Termination to WFCS and Plaintiff. Plaintiff
refused to vacate the premises.
parties reached a partial settlement agreement, which was
acknowledged by Plaintiff in court on July 12, 2016, in a
colloquy before presiding District Judge Mark G. Mastroianni.
The settlement agreement only resolved the issue of
possession of the premises. The parties reserved their rights
on all other claims and defenses. By the terms of the partial
settlement, parts of which the parties put on the record at
the hearing before Judge Mastroianni, WFCS and Plaintiff were
to relinquish possession of the disputed property to
O'Connell Oil Associates by August 15, 2016 (Dkt. No.
16-1 at 5-7). So far as appears from the record, Plaintiff
and WFCS complied with this aspect of the settlement
26, 2017, O'Connell Oil Associates moved to dismiss the
first matter without prejudice (Dkt. No. 69). The court
granted the motion (Dkt. No. 75), and the Termination Action
was closed on June 16, 2017.
The Current Action
filed this complaint on September 15, 2017 (Dkt. No. 1). He
alleged federal question jurisdiction pursuant to the PMPA.
His statement of claims comprises four paragraphs. Plaintiff
alleges that he entered into a franchise agreement with
O'Connell Oil Associates at some unspecified date prior
to 2007 (Compl. ¶¶ 1, 2). In 2011, after several
years of planning and investment in renovations to the
location, a Dunkin Donuts with a drive through window opened
on the premises (Compl. ¶ 2). In 2012, Plaintiff entered
into an agreement with Gaudrault that he would receive income
related to the Dunkin Donuts project for a period of thirty
years (id.). Plaintiff received income from this
business and paid electric bills and other expenses related
to the Dunkin Donuts business (id.).
January 2, 2016, O'Connell Oil Associates entered into an
agreement with Global Montello Group Corp. by which
O'Connell Oil Associates sold Plaintiff's franchise
to Global Montello Group as part of a twenty-seven station
deal (Compl. ¶ 1). On January 20, 2016, Gaudrault
notified Plaintiff of the sale of the franchise
(id.). Plaintiff alleges that Gaudrault made
Plaintiff promises and “offers of settlement”
about possible lease extensions or employment opportunities
with Global Montello Group (Compl. ¶ 3). Gaudrault
purportedly scheduled a meeting with Plaintiff and Global
Montello Group for March 9, 2016 (id.). However, a
few hours before the meeting was to begin, it was cancelled
and never rescheduled (id.). Later, Plaintiff
learned that no such meeting had ever been scheduled
(id.). That same month, Plaintiff's monthly
income from Dunkin Donuts stopped without notice (Compl.
¶ 2). Plaintiff alleges that he learned in August 2016
that “LPJ Donuts was also paying Michael Sobon for the
entire renovation of the store and their portion of the
electric bill and other expenditures” (id.).
to Plaintiff, his franchise generated over $10 million in net
income to O'Connell Oil Associates. He had planned to
sell his franchise to fund his retirement. He asserts that
his franchise was ended without notice and that none of the
acceptable reasons for franchise termination set forth in the
PMPA applied (Compl. ¶ 1). He further alleges that
Defendants used “excessive predatory ...