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OPARAOCHA v. SUN CO.

March 16, 1998

TITUS E. OPARAOCHA, Plaintiff
v.
SUN COMPANY, INC., Defendant.



The opinion of the court was delivered by: GREEN

MEMORANDUM

 Before the Court are two separate matters: Plaintiff's Motion for Exemplary Damages and Plaintiff's Motion for Attorney's Fees, Expert Witness Fees and Non-Taxable Costs. For the reasons that follow, the Court grants each of Plaintiff's motions.

 BACKGROUND

 Plaintiff, a gasoline station and convenience store franchisee, brought this action to recover damages from the Defendant, the franchisor, for violations of the Petroleum Marketing Practices Act ("the PMPA"), the District of Columbia Retail Service Station Act ("the RSSA") and the common law. The common law claims included fraud and breach of contract. Trial in this case concluded on November 7, 1997, with a jury verdict in favor of the Plaintiff on all of his claims. The jury awarded Plaintiff $ 155,000. Thereafter, the Defendant filed a motion for a new trial while the Plaintiff filed the instant motions. The Defendant's motion for a new trial was denied on February 26, 1998.

 DISCUSSION

 Motion for Exemplary Damages

 Plaintiff seeks exemplary or punitive damages for Defendant's violation of the PMPA. The PMPA allows for the award of exemplary damages in cases where the conduct of the franchisor "was in willful disregard" of the statute or the "rights of the franchisee thereunder. . . ." See 15 U.S.C. §§ 2802, 2803, and 2805(d)(1)(B). To define "willful disregard" in this context, Plaintiff cites Eden v. Amoco Oil Co., 741 F. Supp. 1192, 1194 (D.Md. 1990), which states: "[A] franchisor will be found to have acted with willful 'disregard' of the statutory requirements or with regard to the rights of a franchisee if the franchisor either knew its conduct was prohibited by the PMPA or if the franchisor acted with plain indifference to its prohibitions." The definition Defendant cites for willful disregard is not inconsistent: an act "that is not merely negligent but . . . [which has] been taken with deliberate or intentional disregard to the requirements of the statute." Hoai v. Sun Refining & Marketing Co., 1991 U.S. Dist. LEXIS 15408, 1991 WL 242116,*2 (D.D.C. 1991), order aff'd, 305 U.S. App. D.C. 193, 18 F.3d 953 (D.C. Cir. 1994).

 As the basis for his exemplary damages request, Plaintiff states that the jury, by finding for him, necessarily accepted his evidence of disparate treatment in violation of the PMPA's purpose of preventing arbitrary and discriminatory conduct. The Plaintiff also argues that it was the Defendant's wrongful conduct that caused the termination of Plaintiff's franchise.

 In the Court's view, these two arguments standing alone do not make out a sufficient showing of "willful disregard." The Court cannot assume that the jury verdict alone showed a considered disregard for the PMPA. Moreover, Defendant offered evidence at trial that it considered and followed the PMPA in its decisions leading up to the franchise termination. Test. of J.Conklin at 47-48. On such a record, without more, the Plaintiff cannot show by the requisite "clear and affirmative" standard that Plaintiff willfully disregarded the PMPA. Hoai at 2.

 That, however, is not the end of the analysis. Plaintiff's last basis for exemplary damages, that the franchise termination was pretextual, is also his most convincing. Plaintiff's argument is that Defendant used an improper basis to avoid the 90-day notice provision prior to termination as required under the PMPA. See 15 U.S.C. 2804. That basis is alleged to be Defendant's wish to avoid the bankruptcy process when it appeared the Plaintiff might attempt to avail himself of protection under the bankruptcy laws.

 A valid termination under the PMPA requires 90 days advance notice except where it would be unreasonable to do so. 15 U.S.C. 2804(b)(1). Even then, however, notice must be given on the "earliest date" that is "reasonably practicable." 15 U.S.C. 2804(b)(1)(A). The 90-day notice requirement is an important provision of the PMPA and should not be lightly excused. See Wisser Company Inc. v. Mobil Oil Corp., 730 F.2d 54 (2d Cir. 1984). In the present case, there is no dispute that less than 90 days was given for termination of the franchise. The point of contention at trial was whether the shorter period was justified. The jury found no such justification when it returned a verdict that Defendant violated the PMPA by terminating Plaintiff's franchise in March of 1996. Verdict Sheet, Questions 1 and 2. In other words, while it is settled that the franchise termination was wrongful, whether it was also in "willful disregard" of the PMPA is the question that concerns the Court.

 To prove "willful disregard," Plaintiff provides a copy of an electronic mail message ("e-mail"). Mtn. for Exemplary Damages, Exhibit 1. *fn1" The e-mail was sent from Judith A. Luff to Charles J. Bullard and states in relevant part:

 
I spoke with Mike Day today and he indicated that Mr. Oparaocha was still out of gas and that he was in danger of filing for bankruptcy. I would recommend termination prior to his filing -- once he files we need to go to the bankruptcy court and file a petition to Lift a Stay." [Sic] Mike also told me that Mr. Oparaocha might have a buyer.

 Id. Attached to the e-mail was a proposed termination letter for Titus Oparaocha. The e-mail response to this message was: "Judy, we are sending out the ...


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