Farhad Fazli v. Conocophillips Company , 369 F. App'x 814 ( 2010 )

FILED
NOT FOR PUBLICATION
MAR 04 2010
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FARHAD FAZLI, etc.,
No. 08-56789
Plaintiff-Appellant,
D.C. No. CV 03-04938 FMC
and
MEMORANDUM *
MEHRAN HARIRI, etc.,
Plaintiff,
v.
CONOCOPHILLIPS COMPANY, a
Texas Corporation,
Defendant-Counter-claimant-
Appellee,
JALIL MAJDI,
Counter-defendant.
Appeal from the United States District Court
for the Central District of California
Florence Marie Cooper, District Judge, Presiding
Argued and Submitted February 9, 2010
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL, District
Judge**
Farhad Fazli appeals the district court’s order granting summary judgment in
favor of ConocoPhillips Company with respect to Fazli’s claims under the
Petroleum Marketing Practices Act (“PMPA”) and under state law. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The “law of the case” doctrine did not preclude the district court from
entertaining ConocoPhillips’ motion for summary judgment following remand of
the action, because our disposition of the prior appeal did not address whether
ConocoPhillips had made a bona fide offer to Fazli.1 See United States ex rel.
Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1186 (9th Cir. 2001) (“[t]he doctrine
does not apply to issues not addressed by the appellate court”). With respect to the
district court’s prior order, when the issue is one that previously was decided by
the district court itself, application of the doctrine is discretionary. United States v.
Smith, 389 F.3d 944, 949 (9th Cir. 2004). “‘All rulings of a trial court are subject
**
The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
1
Under applicable provisions of the PMPA, a franchisor seeking to sell a
service station leased and operated by a franchisee must, within ninety days after
issuing the notice of nonrenewal of franchise, make a bona fide offer to sell the
station to the franchisee or give the franchisee an opportunity to buy the station on
the same terms as a third party offer. 15 U.S.C. § 2802(b)(3)(D)(iii).
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to revision at any time before the entry of judgment.’” Id. (quoting United States
v. Houser, 804 F.2d 565, 567 (9th Cir. 1986)).
Fazli did not object to admission of the Glenwood offer in the district court
proceedings and thus he has waived the objection. See United Bhd. of Carpenters
and Joiners of Am., Lathers Local 42-L v. United Bhd. of Carpenters and Joiners
of Am., 73 F.3d 958, 962 n.1 (9th Cir.1996). Moreover, the probative value of the
Glenwood offer is not affected by ConocoPhillips’ failure to inform Fazli of the
offer at an earlier point in time. See Rhodes v. Amoco Oil Co., 143 F.3d 1369,
1374 n.6 (10th Cir. 1998) (“As we have noted, the proper test is an objective
analysis whether the final offer of Amoco was bona fide. In this analysis, whether
the plaintiff’s evidence was communicated to Amoco before commencement of the
lawsuit could have no bearing.”) (emphasis in original). Finally, Fazli is mistaken
in asserting that courts may not consider evidence of offers and appraisals that
post-date a purported bona fide offer. See Slatky v. Amoco Oil Co., 830 F.2d 476,
485-86 (3d Cir. 1987) (holding that district court should have considered evidence
in the record, which included pre- and post-offer appraisals, in determining
whether the franchisor’s sale offer was bona fide); Anand v. BP West Coast
Products LLC, 484 F. Supp. 2d 1086, 1097-98 (C.D. Cal. 2007) (considering both
pre- and post-offer appraisals); Harara v. ConocoPhillips, 377 F. Supp. 2d 779,
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788 (N.D. Cal. 2005) (considering pre-offer appraisals, a post-offer bid by a third
party, and the post-offer sale of the property to a third party).
The district court did not err in granting summary judgment with respect to
Fazli’s PMPA claim. Viewing the evidence in the light most favorable to Fazli, no
reasonable trier of fact could conclude that ConocoPhillips failed to make a bona
fide offer to Fazli prior to selling the station to a third party. The totality of the
evidence established that ConocoPhillips’ sale offer of $980,000 approached fair
market value. See Ellis v. Mobil Oil, 969 F.2d 784, 787 (9th Cir. 1992) (an offer to
sell is bona fide under the PMPA if it approaches fair market value). The
differences between the competing valuations were not substantial enough to create
a triable issue as to this material fact. See Rhodes, 143 F.3d at 1372 (“We wish to
emphasize, however, that we do not hold that summary judgment for the franchisor
can never be proper, and that jury trial must always be had, whenever the parties
each produce an appraisal and the appraisals do not arrive at identical conclusions
on value.”) (emphasis in original); Sandlin v. Texaco Refining and Marketing, Inc.,
900 F.2d 1479, 1482-83 (1990) (holding as a matter of law that the offer price was
“objectively reasonable as a reflection of fair market value” where there was only
an insubstantial difference between the competing appraisals and the offer price
fell between them).
4
Nor did the district court err in granting summary judgment with respect to
Fazli’s state law claims, which are derivative of or preempted by the PMPA.
AFFIRMED.
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