W. Convenience Stores, Inc. v. Suncor Energy (U.S.A.) Inc.

• Decision Date: 05 September 2013
• Docket Number: Civil Action No. 11–cv–01611–MSK–CBS.
• Citation: 970 F.Supp.2d 1162
• Parties: WESTERN CONVENIENCE STORES, INC., and Western Truck One, LLC, Plaintiffs/Counterclaim Defendants, v. SUNCOR ENERGY (U.S.A.) INC., Defendant/Counterclaim Plaintiff, and Suncor Energy (U.S.A.) Inc., Third-party Plaintiff, v. Hossein Taraghi, and Debra Lynn Taraghi, Third–Party Defendants.
• Court: U.S. District Court — District of Colorado

970 F.Supp.2d 1162

WESTERN CONVENIENCE STORES, INC., and Western Truck One, LLC, Plaintiffs/Counterclaim Defendants,
v.
SUNCOR ENERGY (U.S.A.) INC., Defendant/Counterclaim Plaintiff,
and
Suncor Energy (U.S.A.) Inc., Third-party Plaintiff,
v.
Hossein Taraghi, and Debra Lynn Taraghi, Third–Party Defendants.

Civil Action No. 11–cv–01611–MSK–CBS.

United States District Court,
D. Colorado.

Sept. 5, 2013.

[970 F.Supp.2d 1167]

Joseph T. Vanlandingham, Philip Wayne Bledsoe, Polsinelli PC, Denver, CO, for Plaintiff.

Kathleen E. Craigmile, Kenneth Ronald Bennington, Bennington, Johnson, Biermann & Craigmile, LLC, Denver, CO, for Plaintiff.

Anthony J. Shaheen, Holland & Hart, LLP, Denver, CO, for Plaintiff.

John Robert Robertson, Hogan Lovells U.S. LLP, Washington, DC, for Plaintiff.

Michael Edward Korenblat, Suncor Energy Services, Inc. Denver, CO, for Plaintiff.

William Leitzsey Monts III, Hogan Lovells U.S. LLP, Washington, DC, for Plaintiff.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT
MARCIA S. KRIEGER, Chief Judge.

THIS MATTER comes before the Court pursuant to Defendant Suncor Energy (U.S.A.), Inc.'s (“Suncor”) Motions for Summary Judgment (# 181, 185) on all claims for relief by the Plaintiffs, the Plaintiffs' responses (# 198, 200), and Suncor's replies (# 217, 219); Suncor's Motion

[970 F.Supp.2d 1168]

for Summary Judgment (# 182) on certain of its counterclaims, the Plaintiffs' response (# 201), and Suncor's reply (# 216); and several motions (# 188, 194, 209–211, 218, 232, 249) by various parties to restrict access to certain filings. Also pending are Objections (# 107) by Interested Party The Dillon Companies, Inc. (“Dillon”) to an August 17, 2012 Minute Order (# 95) by the Magistrate Judge, the Plaintiffs' response (# 123), and Dillon's reply (# 127); and Dillon's Objections (# 187) to a January 28, 2013 Minute Order (# 179) by the Magistrate Judge, the Plaintiffs' response (# 192), and Dillon's reply (# 195).

FACTS

The Court provides a brief sketch of the pertinent facts here, elaborating as necessary in its analysis. Plaintiff Western Convenience Stores, Inc. (“WCS”) supplies gasoline and diesel fuel to various retailers in Colorado and Nebraska. It purchases the fuel from various suppliers, including Suncor. WCS' business with Suncor was conducted pursuant to both written and oral contracts.

In April and May 2011, Suncor began refusing to supply fuel to WCS, ostensibly due to issues regarding WCS' promptness of payment. (As noted below, WCS disputes certain aspects of this assertion.) On May 20, 2011, Suncor informed WCS that it was now requiring prepayment for shipments of fuel. WCS, contending that this was a violation of the parties' agreements, instructed its bank not to honor draw requests made by Suncor on a WCS account. In response, Suncor suspended all subsequent fuel sales to WCS. At some point in time, WCS also concluded that Suncor had been offering the same gasoline products to Dillon, WCS' competitor, at more favorable prices than Suncor was offering to WCS.

During the same time period, Suncor operated a terminal through which it distributed its both its own fuel products and fuel products delivered by other suppliers. Pursuant to what the Amended Complaint describes as a “verbal and implied promise, confirmed by the parties' custom and practice,” Plaintiff Western Truck One, LLC (“WTO”), an affiliate of WCS, sometimes received delivery of fuel purchased from third-party sellers via Suncor's terminal. Shortly after Suncor suspended its own fuel shipments to WCS in May 2011, it advised WTO that WTO's access to Suncor's terminal to receive fuel purchased from third-party suppliers was revoked.

The Plaintiffs commenced this instant action against Suncor. The Amended Complaint (# 43) contains six claims: (i) violation of the Robinson–Patman Act, 15 U.S.C. § 13, in that Suncor engaged in price discrimination by selling its fuel on more favorable terms to “favored retailers” (such as Dillon) than it did to WCS; (ii) common-law breach of contract, under Colorado law, in that Suncor breached the “Master Agreement” between itself and WCS by, among other things, suspending WCS' purchasing ability without cause, engaging in price discrimination, and withdrawing credit terms to WCS without cause; (iii) common-law breach of contract, in that Suncor breached the “Access Agreement” between itself and WTO by revoking WTO's ability to receive fuel from third-party sellers through Suncor's terminal; (iv) common-law tortious interference with contract, in that Suncor's revocation of terminal access to WTO improperly interfered with the Plaintiffs' “performance of their agreements and relationships with middlemen”; (v) common-law tortious interference with contract, in that Suncor's revocation of terminal access to WTO interfered with a contract between WTO and WCS; and (vi) violation

[970 F.Supp.2d 1169]

of C.R.S. § 6–2–108, in that Suncor engaged in an unlawful restraint of trade by offering secret rebates or refunds to favored purchasers but not offering those same terms to the Plaintiffs.

Suncor answered (# 31) and asserted a counterclaim ¹ against WCS for common-law breach of contract, alleging that WCS has failed to pay invoices for fuel Suncor delivered to it. It also filed a Third–Party Complaint (# 37) against Hossein Taraghi and Debra Lynn Taraghi, alleging a claim for breach of contract in that the Taraghis failed to honor a personal guaranty they had given of WCS' payment of its contractual obligations to Suncor.

Suncor has filed two motions for summary judgment directed at the Plaintiffs' claims: one (# 185) is directed that the statutory (Robinson–Patman and Colorado restraint of trade) claims (and is subject to motions seeking to restrict public access to the motion papers and accompanying exhibits, as discussed below), and the other (# 181) is directed at the Plaintiffs' common-law claims. Suncor has also moved for summary judgment in its favor on its own counterclaim and third-party claim (# 182). Rather than summarize here the arguments made in those motions, the Court will simply address them as part of its analysis. Separately, Dillon has filed Objections (# 107, 187) to certain rulings by the Magistrate Judge regarding a discovery subpoena served on Dillon.

A. Suncor's Motions1. Standard of review

Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Kaiser–Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett–Packard Co., 305 F.3d 1210, 1213 (10th Cir.2002).

If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. SeeFed.R.Civ.P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991);

[970 F.Supp.2d 1170]

Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

2. Motion directed at Plaintiffs' statutory claims

Because the resolution of the Plaintiffs' statutory claims could bear on the remaining common-law claims, the Court turns to Suncor's motion directed at the statutory claims first.

A. Robinson–Patman Act claim

The Robinson–Patman Act, 15 U.S.C. § 13(a), makes it unlawful “to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in [interstate] commerce, ... where the effect of such discrimination may be substantially to lessen competition ... or prevent competition with any person who grants or knowingly receives the benefit of such discrimination.”

To establish a Robinson–Patman Act claim, WCS must first make a prima facie showing that: (i) two or more contemporaneous sales by the same seller to different buyers at different prices; (ii) of commodities of like grade and quality; (iii) at least one of the sales was made in interstate...