‒Unreported Opinion‒
17
Judge McCally specifically determined that the PMPA claim had to have been
filed by April 15, 2015, within a year after the alleged violation of the statute. The claim
alleging the PMPA violation was not asserted until January 15, 2016 when the First
Amended Complaint was filed and did not relate back to the original complaint filed on
April 3, 2015, because it was a new cause of action:
I’m going to start with Count 5. Count 5 is a completely new allegation,
and do -- can I see the file? The, do we have the first -- this original bill of
complaint was filed April 3, 2015, and at no time was Count 5 that is before me
today in the amended, in the new complaint, amended complaint filed by counsel,
new counsel on behalf of, Ms. Crawford, on behalf of Mr. Klassou, and the date
that is set forth in the complaint filed, this amended complaint, that plaintiff relies
on in his allegation that says the complaint, the relationship ended on April 16,
2014, I’m paraphrasing that first part, when the plaintiff reluctantly accepted that
he would continue to operate service bays at the station but that the gasoline sale
portion was concluded. That, that’s the date he set forth. Those are the kind of
facts that, specific, that any party being sued has a right to know in detail what are
the facts the plaintiff is relying on to set forth the elements of each claim that
they’re making.
In this instance, we do have a date certain. April 16, 2014. Mr. Schwager
has given me the statute for this area of law, 2805, which specifically prescribes a
one year statute of limitations for a suit to be brought under this theory, and that
date would be April 16, 2015. It was not set forth in the original complaint. Had it
been set forth on April 3, 2015, I would agree with you, Ms. Crawford, that you
would be able to amend that count, depending on whatever the Court had ruled at
the last motion to dismiss hearing. But a motion to dismiss and leave to refile is
not an invitation to start bringing up other causes of actions, especially where there
is a prescribed statute of limitations that shortens the time from the general statute
of limitations of three years to put a party opponent on notice of what they’re
being sued for.
So, this is a brand new cause of action. It was not raised. There’s no way
that I know of to go back and piggyback that in because we could have filed it but
we didn’t. That’s the whole point of a statute of limitations. And so, the statute
makes it clear what the law is in this area.
He, your client acknowledges notice as of that date that he would no longer
be selling gas reluctantly, and as I understand, the eviction took place after the
service, I’m sorry. It was not at the same time as the issue with the pumps. So, I
am going to grant with prejudice the motion to dismiss as to Count 5.
We agree with Judge McCally.