United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
DISMISS AND MOTION TO STRIKE
Dennis Saylor IV United States District Judge.
an action for declaratory relief arising out of a contract
dispute. Plaintiff Abe & Nahed, Inc.
(“Sudbury”) operates a gas station in Sudbury,
Massachusetts. It has leased the property from defendants
Global Companies LLC and Global Montello Group Corp.
(collectively, “Global”) for the last eight
years. In October 2018, Global notified Sudbury that it
planned to sell its interest in the property to a third-party
buyer. Pursuant to Sudbury's franchise agreement, Sudbury
had a right of first refusal to purchase the interest.
Although Sudbury exercised that right, it also filed suit,
alleging that two sections of the sale contract violate the
Petroleum Marketing Practices Act (“PMPA”), 15
U.S.C. § 2801 et seq.
has moved to dismiss the complaint for mootness, lack of
standing, and failure to state a claim. It has also moved to
strike an affidavit plaintiff attached to its opposition
memorandum. For the following reasons, the motion to strike
will be granted, and the motion to dismiss will be denied.
facts are set forth as described in the complaint and
has leased a gas station at 432 Boston Post Road in Sudbury,
Massachusetts (the “Property”) for approximately
30 years. (Compl. ¶ 1). For the first 22 years, Sudbury
leased the Property from ExxonMobil Oil Corporation.
(Id. ¶ 5). In 2010, ExxonMobil transferred the
Property to Global. (Id. ¶¶ 5-6, 9). After
the transfer, Sudbury entered into a franchise agreement
under the PMPA with Global. (Id. ¶ 10). The
current agreement will expire on July 31, 2019. (Id.
October 2, 2018, Global delivered a Notice of Nonrenewal to
Sudbury stating that it had entered into a Purchase and Sale
Agreement to sell the Property to a third party.
(Id. ¶ 13). The notice further stated that
under the PMPA, Sudbury had 45 days (that is, until November
21, 2018), to exercise its right of first refusal to purchase
the Property on the same terms and conditions as detailed in
the Purchase and Sale Agreement. (Compl. Ex. 1 at 1-2).
18 of the Purchase and Sale Agreement provides the buyer a
90-day period to conduct due diligence. (Compl. ¶ 15).
It further provides the buyer up to three additional 30-day
extensions of the due diligence period. (Id.).
However, to exercise each 30-day extension, the buyer must
make a non-refundable $5, 000 deposit with a title insurance
company. (Id. ¶ 16).
18 also states the following:
In the event that Buyer is not in any respect satisfied with
the results of its due diligence for any reason, then, in
Buyer's sole and absolute discretion, at any time during
the Due Diligence Period, Buyer may, at Buyer's option,
on or before expiration of the Due Diligence Period withdraw
from this transaction . . . and the Deposit shall be refunded
to the Buyer forthwith.
(Compl. Ex. 1 at 13).
20 of the Purchase and Sale Agreement addresses environmental
considerations. (Compl. ¶ 20). Subsection (b) concerns
Underground Storage Tanks (“USTs”) and specifies
that within 120 days of closing, Global shall, at its sole
cost and expense, remove all USTs located on the Property.
(Compl. Ex. 1 at 17). It further states:
Should the Buyer determine that the UST Removal Activities
should not be completed by Seller or if the Premises, or any
portion thereof, is used for the storage, sale, transfer
and/or distribution of petroleum products within fifty (50)
years of the Closing, Buyer agrees that the petroleum
products sold from the Premises shall be supplied by Seller .
. . pursuant to Seller's standard form Fuel Supply