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Route 27, LLC, et al v. Getty Petroleum Marketing

March 29, 2011

ROUTE 27, LLC, ET AL., PLAINTIFF,
v.
GETTY PETROLEUM MARKETING, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Wolfson, United States District Judge:

**NOT FOR PUBLICATION**

OPINION

This matter arises out of a complaint initially brought in the Superior Court of New Jersey, Law Division, Middlesex County, by 31 gas service station dealers in New Jersey and Pennsylvania (collectively, "Plaintiffs") against Defendants Getty Petroleum Marketing, Inc. ("Getty"), Lukoil North America, LLC ("Lukoil"), Semyon Logovinsky, and Louis Maschi (collectively, "Defendants"). Presently before the Court are several motions by the parties: a motion to remand by Plaintiffs, a motion to amend by Plaintiffs, and a motion to dismiss by Defendants. For the reasons that follow, the Court grants Plaintiffs' motion to amend and Plaintiffs' motion to remand for lack of subject matter jurisdiction. In light of these rulings, Defendants' motion to dismiss is denied as moot.

I. BACKGROUND

Plaintiffs filed this action on May 17, 2010, in the Law Division of the Superior Court of New Jersey, Middlesex County. Before serving the complaint on the Defendants, Plaintiffs filed an Amended Complaint on May 24, 2010, to correct the residence of one of the Plaintiffs, William Rossnagle. The original complaint stated that he was a New Jersey resident. His residence was corrected, in the Amended Complaint, to reflect that he is a Pennsylvania resident. Both the original complaint and the Amended Complaint state that several of the plaintiffs are Pennsylvania residents and that Defendant Semyon Logivinsky is also a resident of Pennsylvania. The remaining defendants are residents of New Jersey, Maryland, New York, and Delaware.

Substantively, the Amended Complaint asserts claims related to Defendant Getty's acquisition of 308 Mobil-branded service stations from ConocoPhillips Company ("Conoco"). Am. Compl., ¶ 38. Per that agreement, the Amended Complaint asserts, Conoco assigned its franchise agreements with Plaintiffs to Getty, and Getty became a franchisor to Plaintiffs. Id. at ¶ 39. Once Getty became Plaintiffs' franchisor, Getty allegedly rebranded the service stations from the "well-known, established Mobil brand" to the "relatively unknown LUKOIL brand." Id. at 40. In 2009, the Amended Complaint further alleges, Getty completed additional sales and assignments of Plaintiffs' interests in their service stations "without providing Plaintiffs a bona fide offer or right of first refusal" as required by the New Jersey Franchise Practices Act, N.J.S.A. 56:10-1, et seq. ("NJFPA"), in order to satisfy Getty's short-term debt obligations. Id. at ¶¶ 41-43.

Based on these allegations, the Amended Complaint brings the following claims: Count 1- an NJFPA claim against Defendants Getty and Lukoil; Count 2 -- a conspiracy claim against all Defendants; Count 3 - a tortious interference with contractual rights claim against all Defendants; Count 4 -- a tortious interference with prospective economic advantage claim against all Defendants; and Count 5 -- a constructive trust claim against Getty and Lukoil. As to Defendant Logovinsky in particular, the Amended Complaint alleges that Logovinsky was Getty's Vice President of Wholesale and Business Development, Am. Compl., ¶ 35, and that Getty and Lukoil acted through him and other officers and directors in committing the conspiracy and tortious interference claims. The Amended Complaint, further, alleges that Defendant Maschi "is [sic] Real Estate Manager at LUKOIL." Id. at ¶ 36. In essence, the Amended Complaint sought to impose individual liability against Logovinsky and Maschi for Lukoil's alleged acts related to those claims.

Defendants removed the suit to this Court on June 11, 2010 based on diversity jurisdiction under 28 U.S.C. § 1332. In their removal petition, Defendants contend that "[t]here are no averments in the Complaint directed specifically to Logovinsky [or Maschi] setting forth the basis for any claims against [them], and [their] joinder . . . is fraudulent and intended solely to defeat jurisdiction in the federal courts." Def. Notice of Removal, ¶¶ 10-11. Defendants, primarily, challenge Logovinsky's joinder because he is a Pennsylvania resident and it is his presence that, along with two of the plaintiffs that also reside in Pennsylvania, destroys diversity here.

After the suit was removed, Defendants filed a motion to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), asserting various grounds, including, inter alia, federal preemption of the NJFPA. Shortly thereafter, Plaintiff filed a motion for leave to file a Second Amended Complaint. The Second Amended Complaint includes the same parties named in the original and Amended Complaint, but seeks to add further, detailed allegations against Logovinsky and Maschi. Importantly, the Second Amended Complaint also adds Logovinsky to the NJFPA count.

Specifically, the Second Amended Complaint alleges that Logovinsky was Getty's Vice President of Wholesale and Business Development, id. at ¶ 35, and that, as a director and officer, he "actively participated in the management of Getty and had power and influence over its policy making ...." Id. at ¶ 48. Further, the Second Amended Complaint asserts that Logovinsky "exercised direct authority over all aspects of Getty's marketing and property acquisition and sale activities and, upon information and belief, directly participated in the violation of the [NJFPA] alleged herein." Id. at ¶ 37. According to the Second Amended Complaint, [n]o important decisions were made by Getty, or subsequently by LUKOIL, without Defendant Logovinsky's agreement, and Defendant Logivinsky [sic] was at all relevant times the key individual within Getty, and subsequently within LUKOIL, who reported directly to the managers of LUKOIL's parent OAO LUKOIL.

Id. Finally, the Second Amended Complaint asserts, Logovinsky had or has interests in Arfa Enterprises, Inc. and Arfa Real Estate Holding, LLC, "one or both of which have been involved in the acquisition of service station properties from Getty and the subsequent operation of those service station properties." Id.

With respect to Defendant Maschi, the Second Amended Complaint alleges that Maschi served, initially, as a Real Estate Manager for Getty and, subsequently, for Lukoil. Id. at ¶ 36. The Second Amended Complaint, further, alleges that he "exercised direct authority over Getty's property acquisition and sales activities and, upon information and belief, directly participated in the violation of the [NJ]FPA alleged herein." Id. Maschi, unlike Logovinsky, is not added to the NJFPA count.

Following its motion to amend, Plaintiffs then filed a motion to remand for lack of diversity jurisdiction. The Court now rules upon the parties' sundry motions, turning first to the motion to amend.

II. MOTION TO AMEND

While, typically, the Court would consider a pending motion to remand for lack of subject matter jurisdiction before reaching a pending motion to amend, the Court addresses the latter first in light of the parties' dispute over which ...


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