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Sunoco, Inc. v. MX Wholesale Fuel Corp.

September 4, 2008

SUNOCO, INC. (R&M), PLAINTIFF,
v.
MX WHOLESALE FUEL CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

Before the Court is plaintiff Sunoco Inc. (R&M)'s ("Sunoco") unopposed motion for judgment for voluntary dismissal of Counts I, II, III, IV and V of its complaint, an award of counsel fees, cost and prejudgment interest, and for the entry of final judgment on Count VI of its complaint. For reasons explained below, Sunoco's motion is granted.

I. JURISDICTION

This Court exercises jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) over plaintiff's claims under the Petroleum Marketing Practices Act ("PMPA"), 15 U.S.C. §§ 2801 et seq., and pursuant to 28 U.S.C. § 1332 (diversity) because there is complete diversity between plaintiff, a citizen of Pennsylvania and defendants, citizens of New Jersey.

II. BACKGROUND

The underlying facts concerning this matter were set forth in this Court's Opinion entered on June 17, 2008, and will not be repeated here.

III. DISCUSSION

A. Voluntary Dismissal of Counts I-V

Sunoco has requested that Counts I-V of its complaint be voluntarily dismissed. Defendants have filed no opposition. Therefore, Counts I, II, III, IV and V are dismissed.

B. Counsel Fees and Costs

Sunoco requests that it be awarded its attorneys' fees and costs associated with the prosecution of this litigation. Although New Jersey law has a strong policy disfavoring the shifting of attorneys' fees, courts will enforce contractual fee-shifting provisions. See Metex Mfg. Corp. v. Manson, No. 05-2948 (HAA), 2008 WL 877870, at *9 (D.N.J. Mar. 28, 2008)(stating that attorneys' fees "are not recoverable absent express authorization by ... contract.")(quoting State, Dept. of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 505 (1983)); Titan Stone, Tile & Masonry, Inc. v. Hunt Const., No. 05-3362 (GEB), 2008 WL 687263, at *4 (D.N.J. Mar. 10, 2008)(same).

Here, paragraph 34 of the franchise agreement entered into between the parties states:

ATTORNEYS FEES: If Buyer fails to pay any amount due under this Agreement or takes any action not requested in writing by Seller for which Buyer's customers bring a claim or lawsuit against Seller, Buyer agrees to pay Seller's reasonable costs and attorney's fees thereby expended in Seller's pursuit or defense of such matters.

Sunoco states that it filed its complaint against defendants MX Wholesale Fuel Corporation ("MX") and Monmouth Petroleum, Inc. ("Monmouth") Monmouth because defendants failed to pay sums for motor fuel due under the franchise agreement. This Court ruled in favor of Sunoco on summary judgment finding that MX owes it ...


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