SOUTHERN DISTRICT OF FLORIDA Case No. 20-22984-CV-O .

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 8 of 51Schubert Depo. at 23.7-Eleven did not immediately respond to the 8 million offer. Schubert Depo. at18. On March 26, 2020, Matt Sanders, 7-Eleven’s Senior Director of Acquisitions, sentan email to Mr. Schubert acknowledging receipt of the September 2019 proposal topurchase the Property and asking “to restart discussions and try to move this forward.”See Email dated March 26, 2020 (DE# 90-3 at 1, 6/14/21). In March or April of 2020, 7Eleven made a counteroffer for 8.3 million. Schubert Depo. at 22. At some point, thepurchase price was reduced back to 8 million.There was no “signed purchase and sale agreement between 7-Eleven andKendall as of May 15, 2020.” Mendez Fuel’s SOF at ¶ 34; SEIF Defendants’ RSOF at¶ 34. On May 17, 2020, SEIF sent an initial draft of the purchase and sale agreement.Id. at ¶ 35. “On June 9, 2020, HCA’s counsel sent to [Mr.] Sanders a clean and redlinecopy of the purchase and sale agreement for the SEIF Defendants’ review.” Id. at ¶ 36.“As of June 10, 2020, there were still seven (7) pending items that were beingdiscussed and negotiated between the parties.” Mendez Fuel’s SOF at ¶ 42.On June 16, 2020, Mr. Sanders asked Mr. Schubert to place an abbreviatedLetter of Intent (“LOI”) on HCR’s letterhead with the understanding it would not“constitut[e] a deal until a purchase agreement [was] signed . . . .” June 16, 2020 Email(DE# 90-9, 6/14/21). Mr. Sanders stated that:this [would] both facilitate communication with the dealer about the [rightof first refusal] and also show us operating in good faith and beingtransparent with the dealer, who needs to work on his own plans for thefuture based on the best available information, and whose generalcooperation [would] benefit both of us.Id. Mr. Schubert agreed to the request. Schubert Depo. at 46.8

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 9 of 51As of July 9, 2020, SEIF and Kendall were still negotiating the terms for apotential acquisition of the Property by Kendall. Mendez Fuel’s SOF at ¶ 56; SEIFDefendants’ RSOF at ¶ 56. “[O]n February 2, 2021, 7-Eleven’s counsel advisedKendall’s counsel that 7-Eleven’s resources were maxed out as they were in the middleof an acquisition for the Speedway gas station system and that they would get back toKendall in a few months.” Id. at ¶ 65.At the time of his deposition, March 30, 2021, Mr. Schubert believed that “[t]heterms of the transaction were . . . largely agreed to” and remained “hopeful ofproceeding and acquiring the [P]roperty.” Schubert Depo at 53, 68. 7B.March 10, 2020 Letter: Non-Renewal of the Franchise Relationship Basedon the Prospective Sale of the PropertyOn March 10, 2020, SEIF sent a letter 8 to Mendez Fuel providing “formal writtennotice pursuant to the Petroleum Marketing Practices Act (“PMPA”), 15 U.S.C. § 2801et seq., that SEIF [would] not renew the franchise with [Mendez Fuel 3] effective closeof business on Friday, June 12, 2020 (‘Effective Date’).” March 10, 2020 Letter (DE# 744 at 2, 2/19/21).7Kendall and 7-Eleven signed a contract for the sale of the Property on May 26, 2021(“May 26, 2021 Contract”). See SEIF Defendants’ Response at 2 n. 1. Mendez Fueldoes not dispute the existence of this contract. Instead, Mendez Fuel argues that “theSEIF Defendants should be precluded from introducing any evidence of a sales contractwith Kendall . . . since such a document was not produced in discovery until after thefact discovery deadline.” Mendez Fuel’s Reply at 5-6. Leaving aside the propriety ofraising what is tantamount to a motion in limine in a reply brief (with no memorandum oflaw supporting the relief requested), the Court finds that it does not need to consider theMay 26, 2021 Contract in ruling on the instant cross-motions for summary judgment.8There were numerous letters and emails exchanged between the parties. Thecommunications summarized herein are only those communications which are relevantto the parties’ cross motions for summary judgment.9

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 10 of 51The March 10, 2020 Letter explained that “[p]ursuant to 15 U.S.C. §2802(b)(3)(D)(III), SEIF [was] electing to non-renew the Supply Agreement because 7Eleven, the parent company of SEIF, ha[d] decided in good faith and in the normalcourse of business to sell the [Property] to a bona fide third party.” March 10, 2020Letter at 2-3. The letter stated that once the sales contract was signed, a copy of thesales contract would be provided to Mendez Fuel 3 and that Mendez Fuel 3 would havea right of first refusal:As soon as the sales contract is signed, a representative at 7-Eleven willforward to [Mendez Fuel 3] the sales contract along with a 45-day right offirst refusal option in accordance with the Petroleum Marketing PracticesAct. Upon receipt of the sales contract, [Mendez Fuel 3] will have the rightto determine, within forty-five (45) days, if it chooses to purchase theproperty upon the same terms and conditions as the third party.Id. at 3. The letter further stated that Mendez Fuel 3 should construe the letter as a“notice that pursuant to Section 29 of the Lease [Agreement], 9 [Mendez Fuel 3’s] rightto occupy the [Property would] . . . terminate on June 12, 2020 and [Mendez Fuel 3would have to] vacate the [Property] not later than that date.” Id. at 3.On March 16, 2020, counsel for Mendez Fuel 3 responded to the March 10, 2020Letter. See March 16, 2020 Letter (DE# 74-5, 2/19/21). The March 16, 2020 Letterasserted that the March 10, 2020 Letter “[was] defective and noncompliant with thePMPA.” Id. at 2. The March 16, 2020 Letter referred to communications between theparties beginning in approximately September, 2019 “relating to renewing” the LeaseAgreement and Supply Agreement. Id. The letter stated that “[a]t no point was Mendez9Section 29 of the Lease Agreement governs notices. It states that notices must be inwriting and sets forth the manner in which notices are to be delivered. See LeaseAgreement at ¶ 29.10

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 11 of 51Fuel advised that these agreements would not be renewed” and that “[t]o the contrary,the information supplied to Mendez Fuel by SEIF was that these agreements, consistentwith the parties' course of conduct and course of dealing, would be renewed.” Id. Theletter also referenced Mendez Fuel 3’s intent to sell the “facility” at the beginning of2020 and Mendez Fuel 3’s submission on February 18, 2020 of a written proposal toSEIF. Id. at 3. The letter concluded by stating that:Mendez Fuel ha[d] repeatedly requested that SEIF approve the proposedtransaction. Those efforts, however, have been unavailing as SEIF hasbecome non-responsive. Now, just a few weeks before the SupplyAgreement and the Lease [Agreement] state that those agreements areset to expire, SEIF has advised that it intends to sell the Facility to anunnamed party upon terms that are not even disclosed to MendezFuel given that the purported purchase and sale agreement betweenSEIF and this third party has not been executed. These facts do notsupport a finding that SEIF is selling the Facility “in good faith and inthe normal course of business.” Rather, it is evident that SEIF issimply seeking to avoid granting approval of the purchase and saletransaction proposed by Mendez Fuel. Such conduct would clearlyconstitute tortious interference by SEIF.SEIF’s conduct in this regard is not compliant with the terms and thespirit of the PMPA and is actionable. Notwithstanding, we are hopefulthat SEIF will properly consider and address the Mendez Fuel transactionso that the parties may amicably proceed with the sale of the Facility byMendez Fuel to its proposed purchaser.Id. at 3 (emphasis added).On March 26, 2020, the SEIF Defendants responded to the March 16, 2020Letter. See March 26, 2020 Letter (DE# 74-6, 2/19/21). The March 26, 2020 Letterdenied any representations made by a SEIF representative to Mendez Fuel 3 andfurther noted that “pursuant to Section 18 of the Supply Agreement,” oralrepresentations could not modify the agreements between the parties. Id. at 2-3. TheMarch 26, 2020 Letter further stated that “[c]ontrary to [Mendez Fuel 3’s] assertions, 7Eleven’s decision to sell was made in the ordinary course of business” and that “the11

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 12 of 51sales price [was] fair market value.” Id. at 3. The March 26, 2020 Letter reiterated that“once a contract of sale [was] finalized with the third-party buyer, 7-Eleven [would]provide Dealer the opportunity to review the offer and purchase the property on thesame terms and conditions as set forth therein.” Id. at 4.C.June 11, 2020 Letter: Offer to Sell the Property to Mendez Fuel 3On June 11, 2020, SEIF sent a letter to Mendez Fuel offering to sell the Propertyfor 8 million. See June 11, 2020 Letter (DE# 74-9 at 2, 2/19/21) (stating that “as asales contract has not been signed and negotiations have stalled [with the third party]due to the pandemic, 7-Eleven makes the offer to sale [sic] the property to [MendezFuel 3] for the purchase price of 8,000,000.00, which is the same price for which 7Eleven is offering the property to sale [sic] for the other third party.”). “This offer for thesale of the property [was] valid for thirty days or until July 13, 2020.” Id. at 3. The June11, 2020 Letter, “extend[ed Mendez Fuel 3’s] right to occupy the [Property] through July13, 2020” and further stated that “[i]f [Mendez Fuel 3 did] not exercise this option topurchase the property in writing on or before July 13, 2020, then the Supply Agreementand Lease [Agreement would] also terminate on July 13, 2020 and [Mendez Fuel 3 hadto] vacate the [Property] not later than that date.” Id. at 3.On June 15, 2020, Mendez Fuel 3 sent a letter to SEIF’s counsel. See June 15,2020 Letter (DE# 74-10, 2/19/21). The letter referred to the 8 million purchase price as“simply an aspirational asking price; and . . . not a bona fide offer, much less an offerthat any third party has accepted or considered” and further stated that:Putting aside the fact that the alleged sale price is grossly in excess of thevalue of the property, there is no evidence that an offer anywhere near 8,000,000 has been made to SEIF and, thus, the purported offerbeing made by SEIF to Mendez Fuel simply highlights that SEIF’sconduct continues to not be in good faith and in the ordinary course12

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 13 of 51of business as SEIF is obligated to do under the PMPA.Id. at 2-3 (emphasis added).The following day, SEIF responded to the June 15, 2020 letter. See June 16,2020 Letter (DE# 74-11, 2/19/21). The June 16, 2020 Letter stated that the delay wasattributable to the pandemic. Id. at 2 (stating that “[w]hile SEIF recognizes that thesenegotiations are taking longer than usual due to the unprecedented Covid-19 crisis,these delays are unavoidable”). The June 16, 2020 Letter further stated that 7-Elevenwould provide Mendez Fuel 3 with “a copy of the fully executed letter of intentdemonstrating a third party’s interest in purchasing the property for 8,000,000”provided that Mendez Fuel 3 sign “a Confidentiality and Non-Disclosure Agreement with7-Eleven and SEIF.” Id. A copy of the Confidentiality and Non-Disclosure Agreementwas enclosed. SEIF also took the position that the PMPA did not require SEIF toprovide a copy of the sales contract:your assertion that SEIF is required to provide your client “a contract toexamine and determine whether to exercise its right of first refusal” isincorrect. Rather, SEIF may either: (1) make a bona fide offer to yourclient; or (2) offer to your client an offer made by another.Accordingly, since SEIF has made a bona fide offer to sell theproperty to your client within ninety days after its § 2804 notificationto your client was given, SEIF has complied with 15 U.S.C. §2802(b)(3)(D)(III).Id. at 3 (emphasis added).D.Expiration of the Lease Agreement and Cessation of Fuel Deliveries“On July 14, 2020, 7-Eleven, through counsel, advised [Mendez Fuel 3] that itsLease Agreement expired as of July 13, 2020 and that it was now a hold-over tenant.”Mendez Fuel’s SOF at ¶ 57; SEIF Defendants’ RSOF at ¶ 57.13

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 14 of 51“SEIF ceased the delivery of fuel as of July 14, 2020” and “[o]n or about July 17,2020, MFH3 ran out of fuel.” Mendez Fuel’s SOF at ¶ 58; SEIF Defendants’ RSOF at ¶58. Robert Dowd, the Wholesale Fuels Market Manager for SEIF, “was aware that adecision had [been] made by SEIF to stop all fuel deliveries to [Mendez Fuel 3]” but“stated that he could not [say who made the decision] without divulging attorney-clientprivileged communications.” Id. at ¶¶ 61-62.E.August 11, 2020 Letter: Termination of Franchise Relationship for Failure toPay RentOn August 11, 2020, counsel for 7-Eleven sent a letter to Mendez Fuel 3 statingthat, consistent with prior correspondence, 7-Elevent considered Mendez Fuel 3 “aholdover tenant in accordance with paragraph 27 of the Lease [Agreement] and statelaw.” August 11, 2020 Letter (DE# 74-12 at 2, 2/19/21). The August 11, 2020 Letterfurther stated that Mendez Fuel 3 owed “an outstanding balance [of] 26,680.81 for thepast due April and May rent abatement repayments, and 16,008.49 in July Base Rent(collectively, “Past Due Rent”) . . . .” Id.According to the August 11, 2020 Letter, this:failure to pay Past Due Rent [was] a separate ground for termination of theLease [Agreement] in that: (1) [Mendez Fuel 3] failed to comply withfranchise provisions which [were] reasonable and material, 15 U.S.C.§ 2802(b)(2)(A); (b) [Mendez Fuel 3] failed to exert good faith efforts tocarry out the provisions of the franchise, § 2802(b)(2)(B); and (c) suchfailure [was] an occurrence of an enumerated event relevant to thefranchise relationship, § 2802(b)(2)(C) and § 2802(c)(8).Id. at 2-3. The August 11, 2020 Letter required that Mendez Fuel 3 “surrender theProperty and surrender all of 7-Eleven’s personal property in accordance with thePMPA Franchise Agreement provisions and pursuant to the PMPA onSeptember 11, 2020.” Id. at 3 (emphasis omitted).14

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 15 of 51On August 12, 2020, Kenia Del Risco, a Dealer Business Consultant forSEIF, “personally served” on Mendez Fuel 3 a copy of the August 11, 2020Letter. See Del Risco Decl. at ¶¶ 1, 13; Exhibit 1 (DE# 73, 2/19/21) (photographof August 11, 2020 Letter).Mendez Fuel 3 states that it “was unable to pay rent as a result of the SEIFDefendants’ decision to stop all fuel deliveries to [Mendez Fuel 3].” Mendez Fuel’sRSOF at ¶ 23. Additionally, Mendez Fuel 3 does not dispute that it “has failed to pay forpetroleum products delivered to the Property in the amount of 7,754.12.” SEIFDefendants’ SOF at ¶ 29; Mendez Fuel’s RSOF at ¶ 29.STANDARD OF REVIEWThe Court, in reviewing a motion for summary judgment, is guided by thestandard set forth in Federal Rule of Civil Procedure 56(a). Rule 56(a) states, in part, asfollows:A party may move for summary judgment, identifying each claim ordefense--or the part of each claim or defense--on which summaryjudgment is sought. The court shall grant summary judgment if the movantshows that there is no genuine dispute as to any material fact and themovant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a).The moving party bears the burden of meeting this exacting standard. CelotexCorp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party “has the initial burdenof informing the district court of the basis for its motion and identifying the portions of therecord that it believes demonstrate the absence of a genuine issue of material fact.”15

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 16 of 51Guidry v. Comey, 692 F. App’x 975, 977 (11th Cir. 2017). The burden then shifts to thenon-movant “to present specific facts showing that there remains a genuine issue fortrial.” Id.The Court is required to view the evidence and all factual inferences arisingtherefrom in the light most favorable to the non-moving party. Batey v. Stone, 24 F.3d1330, 1333 (11th Cir. 1994). “When evaluating cross-motions for summary judgment,the Court analyzes each individual motion on its own merits and thus views the facts oneach motion in the light most favorable to the respective nonmovant.” Adega v. StateFarm Fire & Cas. Ins. Co., No 07-20696, 2009 WL 3387689, at *3 (S.D. Fla. Oct. 16,2009). Summary judgment is appropriate when there is no dispute as to any materialfact and only questions of law remain. Id. If the record presents factual issues, the Courtmust deny the motion and proceed to trial. Adickes v. S.H. Kress & Co., 398 U.S. 144,157 (1970).Despite these presumptions in favor of the non-moving party, the Court must bemindful of the purpose of Rule 56 which is to eliminate the needless delay and expenseto the parties and to the Court occasioned by an unnecessary trial. Celotex, 477 U.S. at322-23. Consequently, the non-moving party cannot merely rest upon his bareassertions, conclusory allegations, surmises or conjectures. Id. As the Supreme Courtnoted in Celotex:[T]he plain language of Rule 56(c) mandates the entry of summaryjudgment . . . against the party who fails to make a showing sufficient toestablish the existence of an element essential to the party’s case, and onwhich the party will bear the burden of proof at trial. In such a situation,there can be “no genuine issue as to any material fact,” since a completefailure of proof concerning an essential element of the non-moving party’scase necessarily renders all other facts immaterial.16

Case 1:20-cv-22984-JJO Document 108 Entered on FLSD Docket 09/09/2021 Page 17 of 51Id. at 322-323. Thus, the mere existence of a scintilla of evidence in support of the nonmoving party’s position is insufficient. There must be evidence on which the jury couldreasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251(1986).OVERVIEW OF THE PMPAIn the instant case, the parties agree that their Franchise Relationship isgoverned by the PMPA. See SEIF Defendants’ SOF at ¶ 5; Mendez Fuel’s RSOF at ¶ 5.“Congress enacted the PMPA in 1978 to protect motor fuel franchisees fromarbit

“Supply Agreement”) wherein Mendez Fuel 3 would purchase Mobil branded gasoline and diesel fuels from SEIF. The Lease Agreement together with the Supply Agreement formed the “Franchise Relationship” between the parties. Both the Lease Agreement and the Supply Agreement were for a ter