Sunoco, Inc. (R & M) v. Mx Wholesale Fuel Corp., Civil Action No. 06-3933 (NLH).

• Decision Date: 17 June 2008
• Docket Number: Civil Action No. 06-3933 (NLH).
• Citation: 565 F.Supp.2d 572
• Parties: SUNOCO, INC. (R & M), Plaintiff, v. MX WHOLESALE FUEL CORPORATION, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

565 F.Supp.2d 572

SUNOCO, INC. (R & M), Plaintiff, v. MX WHOLESALE FUEL CORPORATION, et al., Defendants.

Civil Action No. 06-3933 (NLH).

United States District Court, D. New Jersey.

June 17, 2008.

COPYRIGHT MATERIAL OMITTED

Jeffrey A. Carr, Pepper Hamilton LLP, Princeton, NJ, for Plaintiff.

Charles M. Moriarty, Charles Moriarty, LLC, Red Bank, NJ, for Defendant MX Wholesale Fuel Corporation.

W. Peter Ragan, Sr., Wall, NJ, for Defendant Monmouth Petroleum, Inc.

OPINION

HILLMAN, District Judge.

Before the Court is plaintiff Sunoco Inc.'s ("Sunoco") motion for partial summary judgment and defendant Monmouth Petroleum, Inc.'s ("Monmouth") cross-motion for summary judgment. Also before the Court is Sunoco's motion to strike the Certification of Charles Moriarty. For reasons explained below, Sunoco's motion for partial summary judgment is granted, and its motion to strike the certification is granted. Monmouth's cross-motion for summary judgment is denied.

I. JURISDICTION

This Court exercises jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) over plaintiff's claims under the Petroleum Marketing Practices Act ("PMPA"), 15 U.S.C. §§ 2801 et seq., and pursuant to 28 U.S.C. § 1332 (diversity) because there is complete diversity between plaintiff, a citizen of Pennsylvania and defendants, citizens of New Jersey.

II. BACKGROUND

On July 29, 1996, Coastal Refining & Marketing, Inc. ("Coastal") and Monmouth entered into a series of franchise agreements. On February 5, 2001, Coastal and Sunoco entered into an assignment in which Coastal assigned to Sunoco all of Coastal's rights, title and interest in certain franchise agreements (the "first Sunoco Assignment"). On June 15, 2001, Monmouth and MX Wholesale Fuel Corporation ("MX") entered into an assignment agreement (the "MX Assignment") in which Monmouth assigned to MX all of Monmouth's rights, title and interest in the franchise agreements it had with Coastal. The MX Assignment was signed by Monmouth, MX and Coastal. On August 15, 2002, an assignment agreement was entered into between El Paso Merchant Energy—Petroleum Company formerly known as Coastal Refining & Marketing, Inc. and Sunoco (the "second Sunoco Assignment") in which El Paso/Coastal assigned its rights and interests to Sunoco for certain franchises pursuant to an asset purchase agreement.¹

From approximately July 2002 until August 2006, MX purchased motor fuel from Sunoco. In 2004, certain electronic bank drafts for motor fuel purchased on credit from Sunoco were returned due to insufficient funds in MX's bank account. The payment terms were then revised so that MX paid Sunoco in advance of picking up the motor fuel, although Sunoco continued to demand payment for the overdue amount. On July 31, 2006, Sunoco advised MX that its account balance was overdue in the amount of $1,533,162.00 and that it was suspending all motor fuel deliveries to MX. On August 14, 2006, Sunoco terminated the franchise agreement with MX, claiming that MX's total outstanding balance was $1,533,894.00.

Sunoco filed a motion for partial summary judgment against MX on the ground that MX admitted that it owed $1,533,894.00 to Sunoco. In addition, Sunoco argues that Monmouth is also liable for MX's debt pursuant to the MX Assignment. Monmouth filed a cross motion arguing that it is not liable to Sunoco.

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed. R.Civ.P. 56(c).

An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.2004)(quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001). If review of cross-motions for summary judgment reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts. See Iberia Foods Corp. v. Romeo Jr., 150 F.3d 298, 302 (3d Cir.1998) (citation omitted).

B. Admissions by MX

Sunoco argues that MX admitted it owed Sunoco money. In its answer, MX admitted that it owed Sunoco "certain money," but denied the amount that it owed. During discovery, Sunoco propounded interrogatories regarding the amount owed, but did not receive a substantive response. On June 26, 2007, Sunoco served requests for admissions on MX, including a request that MX admit that it owed Sunoco $1,533,894.00, exclusive of interest and costs. MX failed to respond to the requests for admissions within 30 days of being served. MX finally served responses to the admissions over one month beyond the deadline denying that it owed $1,533,894.00.²

Requests for admissions are governed by Federal Civil Procedure Rule 36 which permits any party to serve on any other party written requests to admit the truth of facts, the application of law to fact, opinion as to either, or, the genuineness of any described document. See Fed. R.Civ.P. 36(a)(1). Unless the party who was served with the requests responds within 30 days of being served, the matters are deemed admitted. See Fed.R.Civ.P. 36(a)(3). A matter admitted under Rule 36 is "conclusively established unless the court, on motion, permits the admission to be withdrawn or amended." See Fed. R.Civ.P. 36(b).

Sunoco argues that it is entitled to judgment in the amount of $1,533,894.00 because MX stated in its answer that it owed Sunoco a certain some of money and because Sunoco's request that MX admit it owed Sunoco $1,533,894.00 was deemed admitted due to MX's failure to reply in a timely manner. In response, MX filed an attorney certification and attached various documents that it states it produced in mediation. The attorney certification does not address any of the arguments raised by Sunoco in its motion. Although paragraph six of the certification states that "[t]here is a factual dispute as to the amount Plaintiff claims is owed by the Defendant," the certification does not state what facts are in dispute and does not "set out specific facts showing a genuine issue for trial." See Fed.R.Civ.P. 56(e)(2). MX also did not file a brief in opposition as required by Local Rule 7.1(d)(2) (requiring a brief, specifying motion date on cover page, and proof of service to be filed with the Clerk 14 days before the motion date), and did not file a counter-statement of facts as required by Local Rule 56.1 (requiring each side to furnish a statement of material facts for motions for summary judgment).

In their reply, Sunoco argues that the attorney certification filed as opposition to their motion should be stricken since it fails to set forth any legal or factual argument. Sunoco also argues that the certification does not meet the requirements of an affidavit under Local Rule 7.2(a) since the statements made were not within the personal knowledge of MX's attorney and because an affidavit cannot contain legal arguments. See Local Rule 7.2 (stating that "[l]egal arguments and summations in affidavits will be disregarded by the Court and may subject the affiant to appropriate censure, sanctions or both.").

Without requesting the Court's permission, MX then filed a sur-reply. See Local Rule 7.1(d)(6) (stating that no sur-replies are permitted without permission of the Judge). The sur-reply consisted of a cover letter from MX's attorney and a certification by Ronald Brousell, President of MX ("Brousell certification"). MX's attorney's letter states that he agrees that he does not have personal knowledge of the relationship between Sunoco and MX and that the purpose of his certification was to show that MX supplied Sunoco with all the documents MX intends to rely on including its expert's report. In his certification, Mr. Brousell states that he hired an accountant to review MX's records in order to determine the amount, if any, owed to Sunoco. He further states that he supplied Sunoco with the report of his expert, Jack W. Kinas, CPA, who opined that although fuel was delivered to MX by Sunoco, it is Sunoco that owes money to MX due to various breaches of the agreement by Sunoco.

The Court finds that the attorney certification filed by MX in opposition to Sunoco's motion for partial summary judgment is deficient and does not properly follow Federal Civil Rule 56(e), Local Rules 7.1(d)(2), 7.2, or 56.1. It does not...