Clinkscales v. Chevron U.S.A., Inc.
| Decision Date | 13 November 1987 |
| Docket Number | No. 86-8753,86-8753 |
| Citation | 831 F.2d 1565 |
| Parties | Maylon B. CLINKSCALES t/a Clinkscales Oil Company, Plaintiff-Appellant, v. CHEVRON U.S.A., INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
William L. Taylor, Southmayd Powell & Taylor, Washington, D.C., for plaintiff-appellant.
R. Matthew Martin, Hansell & Post, Atlanta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before HILL and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.
The Petroleum Marketing Practices Act (PMPA), 15 U.S.C. Secs. 2801-41, was enacted by Congress in 1978 to establish "minimum Federal standards governing the termination and nonrenewal of franchise relationships for the sale of motor fuel by the franchiser or supplier of such fuel." S.Rep. No. 95-731, 95th Cong., 2d Sess. 1, reprinted in 1978 U.S.Code Cong. & Admin.News 873. The district court concluded that appellee Chevron U.S.A., Inc.'s (Chevron) termination of its franchise relationship with appellant Maylon B. Clinkscales (Clinkscales), trading as Clinkscales Oil Company, complied with the requirements of the PMPA. The court therefore granted summary judgment for Chevron. We affirm.
Clinkscales was engaged in the business of wholesale and retail sales 1 of petroleum products in the Athens, Georgia area. From 1946 to 1984, Clinkscales purchased and accepted on consignment various Chevron petroleum products and entered into supply and consignment agreements with Chevron. The most recent agreement between the parties was a January 1984 "Branded Jobber Petroleum Products Agreement" (Jobber Agreement) which gave Clinkscales exclusive distributorship rights for approximately thirty-five "branded" Chevron dealers in the Athens area.
On June 27, 1984, Chevron notified Clinkscales that the Jobber Agreement would terminate in ninety days. The notice stated five grounds 2 for the termination: (1) delivery of non-Chevron gasoline for resale under Chevron's trademark at branded Chevron service stations; (2) unauthorized use of Chevron's trademarks and insignia by placing Chevron's insignia on gasoline pumps at an unauthorized dealership and encouraging this dealership to accept Chevron credit cards without Chevron's approval; (3) sale of Chevron gasoline to Chevron direct-supply contract dealers; 3 (4) failure to cure monetary defaults in the form of three returned checks in the aggregate amount of $83,595.60; and (5) failure to exert good faith efforts to carry out the Jobber Agreement.
In response to the notice of termination, Clinkscales brought this action for damages and injunctive relief. The complaint alleged that Chevron's termination of the Jobber Agreement violated the PMPA, and that Chevron's actions constituted an unlawful horizontal restraint of trade in violation of the Sherman Act, 15 U.S.C. Secs. 1-7. Chevron answered and counterclaimed for damages and permanent injunctive relief against further trademark violations.
The parties agreed to a temporary restraining order enjoining Chevron from preventing Clinkscales from using Chevron trademarks or hindering Clinkscales's ability to purchase Chevron products. After evidentiary hearings, 4 the court denied appellant's motion for a preliminary injunction, ruling that Clinkscales's failure to cure the more than $50,000 in returned checks constituted cause for termination under the PMPA.
Following a discovery conference, Clinkscales filed a stipulation of facts, a motion for summary judgment, and a memorandum of points and authorities in support of his motion for summary judgment. Clinkscales contended that he complied with all of Chevron's demands with regards to curing the monetary default and that Chevron agents had granted Clinkscales a temporary credit extension at the time Clinkscales received the notice of termination. Moreover, Clinkscales contended that terminating his franchise on the basis of the alleged violations was not "reasonable," and therefore not permissible under the PMPA, because of Chevron's course of dealings with him.
Chevron also moved for summary judgment and filed a brief in support of its motion and in response to appellant's motion for summary judgment. Clinkscales moved for judgment by default, alleging that Chevron's response to Clinkscales's motion for summary judgment was untimely under the local rules. Appellant filed a brief "in reply to defendant's response to plaintiff's motion for summary judgment and in response to defendant's brief in support of motion for summary judgment." Chevron responded to the motion for default judgment and filed a reply to appellant's response to Chevron's motion for summary judgment including a supplemental affidavit in support of Chevron's motion for summary judgment.
Approximately six months after Chevron's reply to appellant's response to Chevron's motion for summary judgment was filed, Clinkscales moved for leave to file a surrebuttal brief. Clinkscales alleged that "inadvertence by plaintiff's counsel" had caused a delay in filing but that good cause existed for acceptance of the surrebuttal brief and accompanying affidavit because Chevron's reply brief and supplemental affidavit raised "a number of unfounded factual assertions and/or legal contentions" to which Clinkscales had not had an opportunity to respond.
The district court entered orders: denying appellant's motion for default judgment; denying appellant's motion for leave to file a surrebuttal brief; denying appellant's motion for summary judgment; and granting appellee's motion for summary judgment on both counts of appellant's complaint. Appellant noticed this appeal challenging only the district court's grant of summary judgment for appellee on the PMPA claims 5 and the court's denial of appellant's motion for leave to file a surrebuttal brief.
Rule 3(b) of the local rules for the United States District Court for the Middle District of Georgia grants ten days after receipt of an adverse motion for summary judgment for the party to file a response, brief, or affidavits. At least where the adverse party is not a pro se litigant, 6 requiring conformity with this local rule is consistent with the requirements of Fed.R.Civ.P. 56(c). See Howell v. Tanner, 650 F.2d 610, 614 (5th Cir. Unit B July 1981), cert. denied, 456 U.S. 918, 102 S.Ct. 1775, 72 L.Ed.2d 178 (1982); 7 Kibort v. Hampton, 538 F.2d 90, 91 & n. 1 (5th Cir.1976) (per curiam).
Appellant contends, however, that Chevron raised new legal arguments and new evidence in its reply brief and supplemental affidavit. He claims, therefore, that he could not have responded to these new matters within the ten day response period dictated by the local rules. We need not decide whether new evidence appended to a movant's reply brief 8 might necessitate granting the nonmovant leave to file a surrebuttal brief or supplemental affidavits because, even if appellee's reply brief and affidavit did present new evidence, 9 Clinkscales has failed to demonstrate any adequate excuse for delaying six months after Chevron's reply brief was filed to seek leave to file the surrebuttal brief and the supplemental affidavit.
Absent an affirmative showing by the non-moving party of excusable neglect according to Fed.R.Civ.P. 6(b), 10 a court does not abuse its discretion in refusing to accept out-of-time affidavits. Farina v. Mission Inv. Trust, 615 F.2d 1068, 1076 (5th Cir.1980); Beaufort Concrete Co. v. Atlantic States Constr. Co., 352 F.2d 460 (5th Cir.1965), cert. denied, 384 U.S. 1004, 86 S.Ct. 1908, 16 L.Ed.2d 1018 (1966). Where, as here, the local rules do not provide for surrebuttal briefs, we conclude that the requirements of Fed.R.Civ.P. 6(b) also apply to the court's decision as to whether to grant a non-movant leave to file a surrebuttal brief. As such, the district court may in its discretion allow a surrebuttal brief where the non-movant's failure to fully respond to the motion in its original response was due to excusable neglect.
The district court's denial of leave to file a surrebuttal brief and supplemental affidavit was not an abuse of discretion under the Rule 6(b) standards. Appellant's only excuse for the six-month delay after Chevron filed its reply brief in support of its motion for summary judgment was "inadvertence by plaintiff's counsel who was involved in other proceedings." It is well established, however, that "[t]he fact that counsel has a busy practice does not establish 'excusable neglect' under Rule 6(b)(2)." McLaughlin v. City of LaGrange, 662 F.2d 1385, 1387 (11th Cir.1981), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982). In light of local rules requiring the movant's reply brief and affidavits to be filed within five days after service of the nonmovant's response, appellant should have known that, even if a surrebuttal brief and additional affidavits were allowed, a delay of six months before seeking leave to file these documents was unreasonable. The district court was therefore well within its discretion in denying appellant leave to file the surrebuttal brief and the appended supplemental affidavit.
In denying appellant's motion for summary judgment and granting summary judgment for Chevron on the PMPA claim, the district court ruled as a matter of law: In a footnote to this conclusion, the court, citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), explained...
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