Duncan Services, Inc. [II] v. ExxonMobil Oil Corp., 2010 U.S. Dist. LEXIS 69372 (D. Md. 7-12-10)

Exxon's motion to dismiss dealer plaintiffs' claims that Exxon violated the PMPA by assigning their franchises to a distributor, which then sold the real estate involved to Getty, was granted because the assignment cannot constitute either a termination or non-renewal of the franchises under the PMPA. The court found that a change in the risks associated with doing business, asserted violations of the franchise agreements or a change in the dealers' status from lessees to sublessees that may have resulted from the assignment did not amount to a violation of any statutory element of a franchise, which is a required element of a PMPA claim. Plaintiffs did not dispute that they continued to use Exxon's trademark, to use Exxon's fuel, and to lease the same retail stations. Barnes v. Gulf Oil Corp., 795 F.2d 358, 360 (4th Cir. 1986), relied upon by Plaintiffs, was found to be inconsistent with the Supreme Court's recent decision in Mac's Shell, 130 S. Ct. 1251, 176 L. Ed. 2d 36 (2010), to the extent that Barnes indicated that the invalidity of such an assignment may give rise to a possibility of constructive termination. The court also found that, even if it invalidated the Franchise Agreement's free assignment provision on the ground that it violated the PMPA's anti-waiver provision (15 U.S.C. § 2805(f)(1)), the assignment would still not cause a violation of a statutory element of a franchise under the PMPA, and, thus, would not justify a finding that a constructive termination had occurred.