Opinion
No. 99-CV-4217-JPG
May 18, 2001
MEMORANDUM OPINION AND ORDER
Before this Court is Plaintiff Dersch Energies, Inc.'s ("Dersch") Rule 59(e) motion for reconsideration (Doc. 63). Defendants Shell Oil Company and Equilon Enterprise have responded (Doc. 66), and Dersch has replied (Doc. 67). For the following reasons, the motion is denied.
I. BACKGROUND
Dersch filed a one-count complaint for declaratory judgment against the defendants pursuant to the Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq. ("PMPA") and 28 U.S.C. § 2201. On March 8, 2001, this Court denied Dersh's summary judgment motion and granted summary judgment in favor of the defendants. Because Dersh failed to show how certain provisions in the New Contract effected a substantive change in the relations between the parties, this Court concluded that there had been no nonrenewal or constructive nonrenewal in contravention of the PMPA. This Court also relied on "saving" language that the defendants included in the New Contract that had the effect of permitting changes only to the extent that they were in conformity with other laws including § 2805(f) (e.g., Article 19). Unhappy with the outcome, Dersch filed a motion for reconsideration requesting this Court amend its judgment and award Dersch the declaratory relief it originally sought.
II. STANDARD
The Federal Rules do not expressly recognize motions for "reconsideration." Instead, "reconsideration" motions are normally treated as either motions for relief from orders/judgments under Rule 60(b) or motions to alter or amend judgment under Rule 59(e). Because the motion was filed as a Rule 59(e) motion and because it was filed within the 10-day post-judgment period, it was properly filed as a Rule 59(e) motion to alter or amend judgment.
There are essentially three grounds that might justify the grant of a Rule 59(e) motion to alter or amend judgment: (1) to incorporate an intervening change in controlling law, (2) to reflect newly discovered evidence not available at the time of trial, (3) to correct a manifest error of law or fact. See Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000); Divane v. Krull Elec. Co., Inc., 194 F.3d 845, 850 (7th Cir. 1999); Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998); Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995). "Reconsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion." Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). See Rothwell Cotton Co. v. Rosenthal Co., 827 F.2d 246, 251-52 (7th Cir. 1987).
III. DISCUSSION
The only argument Dersch makes in support of its Rule 59(e) motion is that this Court made a manifest error of law in the way it interpreted § 2805(f)(1) of the PMPA.
Dersch fails to base his motion on an intervening change in controlling law, newly discovered evidence, or a man ifest error of fact.
Dersch first rehashes an "assertion" that § 2805(f)(1) creates an independent jurisdictional basis for a cause of action under the PMPA. Dersch never developed any substantial argument with respect to this theory, waiting instead until it lost to unleash its first developed argument on the matter complete with new John Dingell and Bob Krueger quotes.
Contrary to Dersch's assertions, the "Krueger" referred to in Dersch's quote was Bob Krueger, a former Senator from Texas, not a member of the House of Representatives.
A quick procedural summary is necessary to appreciate the inappropriateness of Dersch's current request. Originally, Dersch filed its complaint citing § 2805(a)'s venue requirements (Doc. 1, at ¶ 3), a citation that was somewhat strange if Dersch was attempting to maintain an implied cause of action that was completely separate and distinct from § 2805(a). Dersh also argued that it was governed by § 2805(a)'s statute of limitations (Doc. 22, at p. 5), relying on Simmons v. Mobil Oil Corp., 29 F.3d 505 (9th Cir. 1994), a case in which a franchisee argued that his franchise was terminated but lost because, under § 2805(a), he did not comply with § 2805(a)'s one-year limitation for filing such an action. Dersh also cited Riverdale Enterprises, Inc. v. Shell Oil Co., 41 F. Supp.2d 56 (D.Mass. 1999) (Neiman, Magistrate Judge), but this Court questioned Magistrate Neiman's analysis to the extent he might have been reading an implied cause of action into § 2805(f)(1) (Doc. 33, at p. 16). This Court noted that § 2805(f)(1) provided no explicit basis for relief and questioned whether Congress intended to create some new implied cause of action when it enacted § 2805(f)(1) (Doc. 33, at p. 11 n. 6).
Dersch then filed an amended complaint, relying again on § 2805(a) for the venue requirements (Doc. 34, at ¶ 3), and alleging a constructive nonrenewal theory (Doc. 35, at ¶¶ 7, 32), a theory that could comfortably fit within Congress's existing PMPA enforcement structure as Dersch itself believed (Doc. 35, at ¶ 35, alleging that the defendants violated § 2802 by allegedly conditioning the renewal on Dersch's wavier of rights; Doc. 35, Prayer For Relief, at ¶ B; Doc. 42, at ¶ 4; Doc. 43, at ¶¶ 3, 4, 6; Doc. 43, Prayer for Relief, at ¶¶ A, B; Doc. 46, at ¶¶ 2, 5). About as far as Dersch came to arguing that Congress intended to create a new implied § 2805(f)(1) cause of action was an empty assertion that, if it ended up losing on the constructive nonrenewal issue, it would have argued that the defendants' "violation of 15 U.S.C. § 2805(f) provides an independent ground for relief" (Doc. 43, at p. 3 n. 3).
It was only after this Court granted summary judgment in favor of the defendants that Dersch sought to develop its previously-undeveloped assertion that Congress intended to create a new implied cause of action when it enacted § 2805(f)(1), a subsection that Dersch has previously noted only "clarifie[d]" the then-existing state of the law (Doc. 22, at p. 4). An unhappy Dersch is now attempting to present a souped-up implied cause of action assertion/argument. But a Rule 59(e) motion has never been the appropriate forum for a party to make his first substantial attempt to present a developed argument, see Caisse Nationale, 90 F.3d at 1270, especially where that party withheld any developed legal argument until after it lost. This Court rejects this basis of Dersch's Rule 59(e) motion on the ground that Dersch failed to previously advance any developed argument on this issue, an issue on which Dersch bore the burden of establishing. See Suter, 503 U.S. at 363; Alexander, 121 S.Ct. 1511, 2001 WL 408983, *20 n. 26 (Stevens, J., dissenting).
Dersch's "assertion" of its position that 2805(f)(1) creates an implied cause of action is insufficient to preserve such an argument. Dersh simply asserts that it would have alternatively argued that § 2805(f)(1) provides an independent ground for relief (Doc. 43, at p. 3 n. 3). This assertion does not preserve its claim. Despite this Court's dicta in which it intimated that an implied cause of action probably did not exist under § 2805(f)(1) (Doc. 33, at p. 11 n. 6), if Dersch wanted to preserve this argument, it should have done so by presenting some developed argument on that theory before judgment. It was Dersch's burden to show that Congress intended to create an implied cause of action when it enacted § 2805(f)(1). See Suter v. Artist M., 503 U.S. 347, 363 (1992). If Dersch disagreed with this Court's intimation and wanted to develop some argument to meet its burden on this issue, Dersch should have done so prior to judgment — not now. Preserving an undeveloped "assertion" preserves nothing at all. See United States v. Dunkel, 927 F.2d 95 5, 956 (7th Cir. 199 1); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (making clear that "perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived"); John v. Barton, 897 F.2d 13 87, 1393 (7th Cir. 1990) (noting that briefs "plainly require more than a one page argument unsupported by any authority"); United States v. Mason, 974 F.2d 897, 901 (7th Cir. 1992) (failure to cite case law or identify facts from the record in support of argument waives an argum ent on appeal); United States v. Fazio, 914 F.2d 950, 959 n. 15 (7th Cir. 1990); United States v. Amerson, 185 F.3d 676, 689 (7th Cir.), cert. denied, 120 S.Ct. 549 (1999) ("Given our adversarial system of litigation, it is not the role of this court to research and construct the legal arguments open to parties, especially when they are represented by counsel.") (internal citations and quotations omitted).
This Court would be remiss, however, if it did not say a word or two about Dersch's presentation of its previously undeveloped implied § 2805(f)(1) cause of action argument. This Court first notes the recent case of Alexander v. Sandoval, 121 S.Ct. 1511, 2001 WL 408983 (U.S. April 24, 2001), in which the U.S. Supreme Court reversed the Eleventh Circuit and found that there was no private right of action to enforce the disparate-impact regulations promulgated under Title VI of Civil Rights Act of 1964. In Alexander, the Supreme Court observed:
Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.
Id. at *7 (citations, quotation marks omitted, and emphasis added).
Alexander reemphasizes the "strong presumption" against the creation of an implied cause of action, even where, as a policy matter, such an implied cause of action would be desirable and where it would arguably be compatible with the statute. See West Allis Mem'l Hosp., Inc. v. Bowen, 852 F.2d 251, 254 (7th Cir. 1988) ("A strong presumption exists against the creation of an implied private right of action."); Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d 1245, 1248-51 (7th Cir. 1997). See also Thompson v. Thompson, 484 U.S. 174, 190 (1988) (Scalia, J., concurring) (noting that "this Court has long since abandoned its hospitable attitude towards implied rights of action"). And, as Alexander indicates, overcoming this "strong presumption" against the creation of an implied causes of action is possible only if statutory intent to create a cause of action "can be inferred from the language of the statute, the statutory structure, or some other source"; otherwise, "the essential predicate for implication of a private remedy simply does not exist." Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 94 (1981). See Alexander, 121 S.Ct. 1511, 2001 WL 408983, *10; Endsley v. City of Chicago, 230 F.3d 276, 280 (7th Cir. 2000) (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16 (1979)).
The Court's use of the term "statutory intent" as opposed to "congressional intent" is presumably an effort to have parties focus on the language and structure of the particular statute as opposed to rummaging through old volumes of the Congressional Record.
The Supreme Court has consistently given statutory/congressional intent determinative weight. See generally Clemons v. Quest Diagnostics, Inc., 2001 WL 58953, at *1 (N.D.Ill. Jan. 18, 2001); Kramer v. Secretary of Defense, 39 F. Supp.2d 54, 57-58 (D. D.C. 1999). Indeed, the Court's most recent word on the subject is that "[s]tatutory intent . . . is determinative." Alexander, 121 S.Ct. 1511, 2001 WL 408983, at *7 (noting that "[w]ithout it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute"). See Mallett, 130 F.3d at 1249. "Having sworn off the habit of venturing beyond Congress's intent," said the Court, "we will not accept [the] invitation to have one last drink." Alexander, 121 S.Ct. 1511, 2001 WL 408983, at *7.
Dersh has also tried to use the Mallett and Transamerica decisions offensively in his reply brief, despite any mention of them prior to judgment. First, this Court is at a loss as to why, in its reply brief, Dersch has resorted to relying on the Mallett's delineation of the proper circumstances as to when a federal right would be enforceable under 42 U.S.C. § 1983. See 130 F.3d at 1251. Second, while the language of § 2805(f)(2) resembles language that the Transamerica court found created an implied cause of action (Compare 15 U.S.C. § 2805(f)(2), "No provision of any franchise shall be valid or enforceable if . . ." with Transamerica's § 215 or 15 U.S.C. § 80b-15, providing that contract whose formation or performance would violate the Act "shall be void . . . as regards the rights of" the violator and knowing successors in interest), the language of § 2805(f)(1) resembles language that the Transamerica court found did not create an implied cause of action (Compare 15 U.S.C. § 2805(f)(1), "No franchisor shall require . . ." with Transamerica's § 206 or 15 U.S.C. § 80b-6," It shall be unlawful for any investment adviser. . .").
In this case, while § 2805(f)(1) displays an intent to prohibit certain conduct, it displays no intent to create an distinct and independent remedy. Nothing in the express language of § 2805(f)(1) or its related sections suggests that § 2805(f)(1) creates an implied cause of action. Nowhere in § 2805(f)(1) does Congress mention a distinct cause of action. This structural observation is critically important because another subsection in the same statute, 15 U.S.C. § 2805 (a), expressly allows a cause of action. Section 2805(a) is entitled "Maintenance of civil action by franchisee against franchisor; jurisdiction and venue; time for commencement of action," and it provides for all the necessary details related to maintaining a cause of action (e.g., jurisdiction, venue, amount in controversy, and a detailed statute of limitation). The existence of this explicit cause of action in this subsection suggests that it is highly improbable that Congress absentmindedly forgot to mention an intended implied cause of action in 2805(f)(1), and forgot to provide any of the same details related to jurisdiction, venue, amount in controversy, and statute of limitation that it did when it enacted § 2805(a). Cf. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 20 (1979); Meghrig v. KFC Western, Inc., 516 U.S. 479, 488 (1996) ("[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it."). This interpretation is especially reasonable where this § 2805(f)(1) prohibition could comfortably be interpreted as being enforceable under § 2805(a), see Carter v. Exxon Co. USA, a Div. of Exxon Corp., 177 F.3d 197, 202 (3d Cir. 1999); Simmons, 29 F.3d at 507 n. 1, as Dersch itself has argued, see supra at p. 4.
If Dersch had its way, there would presumably be no statute of limitation on a § 2805(f)(1) implied cause of action inasmuch as the only statute of limitation would be found in § 2805(a).
As this Court has already noted, when Congress wanted to bestow jurisdiction, it explicitly did so in another subsection of the same statute, 15 U.S.C. § 2805(a). Congress expressly limited that jurisdiction to cases where there was a termination or nonrenewal in violation of §§ 2802-03. Though § 2805(f)(1) was enacted later, in 1994, the congressional intent evidences that § 2805(f)(1) merely "clarifies" that a franchisor cannot demand that a franchisee waive any of its rights under federal or state law; it does not suggest that any new implied cause of action under the PMPA was created. See Petroleum Marketing Practices Act Amendments of 1994, Pub.L. 103-371, 1994 U.S.C.C.A.N. 2779. In short, while § 2805(f)(1) displays an intent to prohibit certain conduct, it displays no intent to create a distinct remedy as Congress explicitly did in another subsection of the same statute.
The burden to show that Congress intended to create an implied cause of action in enacting § 2805(f)(1) was on Dersch. See Suter, 503 U.S. at 363; Alexander, 121 S.Ct. 1511, 2001 WL 408983, *20 n. 26 (Stevens, J., dissenting). While Dersch reserved the right to make the argument if it lost on the constructive nonrenewal issue, Dersch actually never advanced any developed pre-judgment argument, and its attempts to now are inappropriate on a Rule 59(e) motion. Dersch's "better late than never" style of argument cannot rescue it from the fact that its post-judgment motion is the first time this Court has heard any somewhat developed argument on the matter. Because Dersch has not shown that this Court committed a manifest error of law in granting summary judgment in favor of the defendants after Dersch failed to develop an argument as to an alternative basis for jurisdiction, this Court rejects Dersch's contention that this argument forms the proper basis for a Rule 59(e) motion.
Dersch's remaining scattering of arguments is unimpressive. First, Dersch lodges generalized complaints with this Court's analysis, believing that it will render § 2805(f)(1) devoid of any meaning whatsoever. Dersch's blanket assertion is, however, incorrect. Nowhere did this Court state that § 2805(f)(1) can never be applied to a new contract. In this case, because there was no nonrenewal in contravention of the PMPA, this Court's ruling in the defendants' favor was entirely correct. See Beachler v. Amoco Oil Co., 112 F.3d 902 (7th Cir. 1997). This Court notes that Dersch voluntarily agreed to many of these terms in the Old Contract (or at least it never argued its previous acceptance of these terms was involuntary) and fails to argue that the defendants somehow altered those previously agreed upon franchise rights and obligations (at least with respect to the already agreed upon terms).
Second, despite Dersch's assertion to the contrary, this Court is well aware that Beachler did not specifically interpret § 2805(f)(1). But because Dersch did not show that there is some implied cause of action hidden within § 2805(f)(1), the only basis for a cause of action is § 2805(a), and Beachler did speak to that section through § 2805(c).
Actually, no authoritative court has meaningfully interpreted § 2805(f)(1).
Dersch's third argument is rather strange: franchisors cannot "condition" the renewal of the parties' voluntarily agreed-upon rights and obligations (which is what constitutes a "franchise relationship" under § 2801(2)) on the renewal of the parties' voluntarily agreed-upon rights and obligations. Cf. Simmons, 29 F.3d at 507 n. 1. This makes no sense, and statutes have to be interpreted to make sense. Equally strange is Dersch's repeated assumption that all of the disputed provisions violate § 2805(f)(1). Dersch has however failed to show that these provisions caused it to forfeit any non-enigmatic "right" it has under state law. Finally, despite Dersch's protestations to the contrary, the Declaratory Judgment Act, 28 U.S.C. § 2201, does not constitute an independent grant of jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 672 (1950).
Because Dersch has failed to persuade this Court that it committed a manifest error of law, this Court denies Dersch's Rule 59(e) motion. This Court remains strongly convinced that judgment in favor of the defendants in this case is entirely appropriate.
IV. CONCLUSION
For these reasons, this Court DENIES Dersch's Rule 59(e) reconsideration motion (Doc. 63).
IT IS SO ORDERED.