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Tierney v. Gaudrault

United States District Court, D. Massachusetts

January 25, 2019

NEIL E. TIERNEY, Plaintiff,
v.
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

         I. Introduction

         Plaintiff 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).

         On 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.

         II. Background

         This 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.

         A. The 2016 Lawsuit

         On May 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.

         The 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 agreement.

         On May 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.

         B. The Current Action

         Plaintiff 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.).

         On 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.).

         According 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 ...


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