[00:00:01] Speaker 04:
May it please the court.

[00:00:03] Speaker 04:
I'm Michael J. Lockerbie.

[00:00:04] Speaker 04:
I'm representing the appellant, Can-Am Fuel Distribution, along with my colleague, Daniel J. Oates.

[00:00:11] Speaker 04:
The president of the courtroom this morning are the members of the McCallum family, the owners and operators of the service station across the river in Vancouver that until recently was known as Dynamarta Fisher's Landing.

[00:00:26] Speaker 04:
And I'd like to, with the court's permission, reserve five minutes for rebuttal.

[00:00:32] Speaker 04:
Thank you.

[00:00:36] Speaker 04:
The panel members see, of course, many more briefs than I do in my practice.

[00:00:42] Speaker 04:
Most of the ones I see, you get to the conclusion, and the brief kind of peters out.

[00:00:48] Speaker 04:
It says, for the reasons stated herein, appellant or appellee respectfully requests XYZ.

[00:00:57] Speaker 04:
In this case, Ken Am, of course, had the last word.

[00:01:00] Speaker 04:
as the appellant, in its reply brief, actually ended with three sentences in the conclusion that state what this case is all about.

[00:01:11] Speaker 04:
And those three sentences are as follows.

[00:01:13] Speaker 04:
The fact that Sinclair now has its own refinery in the area is not a proper basis for termination or nonrenewal of the sublicense under the PNPA.

[00:01:27] Speaker 04:
Although Sinclair disputes

[00:01:29] Speaker 04:
that it is Can-Am's franchisor.

[00:01:32] Speaker 04:
It has never contended that the sublicense is not subject to the PNPA.

[00:01:38] Speaker 04:
Finding no PNPA franchise in a license to use a refiners trademark granted to a motor fuel distributor and retailer, and of course, in this case, Can-Am was both, is unprecedented.

[00:01:53] Speaker 04:
Then Can-Am's conclusion ends with the boilerplate

[00:01:58] Speaker 04:
respectfully requesting that the preliminary injunction order be reversed.

[00:02:03] Speaker 03:
Let me see if I want to set up where we are.

[00:02:07] Speaker 03:
Yes, your honor.

[00:02:08] Speaker 03:
In this case, because it leads into my question.

[00:02:11] Speaker 03:
The district court granted a motion to dismiss by both Glovis and Sinclair of the PMPA claims, correct?

[00:02:17] Speaker 04:
It did.

[00:02:18] Speaker 03:
OK.

[00:02:19] Speaker 03:
And I want to get back to that in a second.

[00:02:21] Speaker 03:
And then there was a later application for preliminary injunction.

[00:02:25] Speaker 03:
Actually, your honor.

[00:02:26] Speaker 03:
Whether it was an application.

[00:02:27] Speaker 04:
Well, the motion for preliminary injunction was actually filed before the... That's why I changed my mind.

[00:02:35] Speaker 03:
There was a motion for preliminary injunction.

[00:02:37] Speaker 03:
And when the judge got to ruling on that motion, he said, I'm not going to deal with the PMPA claims because I've already dismissed them.

[00:02:46] Speaker 03:
And then I'll deal with the other claims and I'll deny the injunction.

[00:02:49] Speaker 03:
Correct?

[00:02:50] Speaker 04:
That's that's what he said your honor and when he granted good.

[00:02:54] Speaker 03:
You don't have to tell me why you said it Oh, no, but I don't want this question to take longer than it is just widening up.

[00:02:59] Speaker 03:
Just hold on.

[00:02:59] Speaker 03:
It's okay.

[00:03:00] Speaker 03:
So here's my question If we if we are to review the denial of the preliminary injunction Aren't we don't we necessarily have to go back and look at and figure out whether the judge correctly dismissed the PMPA claims?

[00:03:16] Speaker 04:
It's actually possible to review and reverse the preliminary injunction order without doing that.

[00:03:24] Speaker 04:
And the reason it's possible to do it that way is... You really want to argue that?

[00:03:29] Speaker 04:
Don't you need us to go... Well, we would like you to do that, Your Honor, and we believe that's the cleanest... A different standard would apply.

[00:03:37] Speaker 04:
Pardon me?

[00:03:37] Speaker 05:
Because then a different standard would apply.

[00:03:39] Speaker 04:
A different standard would apply.

[00:03:41] Speaker 04:
Right.

[00:03:42] Speaker 04:
We believe that even under winter, as interpreted by Hernandez, that we'd be entitled to preliminary judgment.

[00:03:48] Speaker 03:
Let's assume that we don't agree.

[00:03:50] Speaker 03:
I mean, don't we have to go back and address the dismissal?

[00:03:54] Speaker 04:
We're respectfully requesting that the court do so.

[00:03:58] Speaker 04:
But I would be remiss not to point out, as we did in our briefs, that the district court also held that the license location fee agreement, which is a 10-year term, was an integral part

[00:04:11] Speaker 04:
of the contract between Sinclair and Can-Am, even though Sinclair did not sign the sublicense between Clovis and Can-Am.

[00:04:25] Speaker 04:
And that contract has a 10-year term.

[00:04:27] Speaker 04:
It doesn't expire until December 2029.

[00:04:30] Speaker 04:
And neither one of the defendants sent notice of termination of that, at least not to Can-Am, until after

[00:04:40] Speaker 04:
the termination has supposedly occurred.

[00:04:44] Speaker 04:
The first notice to Can-Am was December 20th.

[00:04:46] Speaker 02:
Can I cut to the chase?

[00:04:50] Speaker 02:
What we've got here is an appeal from a denial of preliminary injunction.

[00:04:56] Speaker 02:
And the denial of preliminary injunction issue, the only issue addressed by the court, was the

[00:05:03] Speaker 02:
preliminary injunction request under the state law CPA slash FIPA.

[00:05:08] Speaker 02:
That is to say, the court was not directly addressing anything having to do with the PMPA.

[00:05:13] Speaker 02:
How do I get to any question dealing with the PMPA, which is what I want to get to because I think the district court made a mistake in interpreting the PMPA.

[00:05:23] Speaker 04:
Well, Your Honor, we respectfully contend that the court has pendant jurisdiction to review the Rule 12b6 order.

[00:05:33] Speaker 04:
not in its entirety, but simply its conclusion that the PNPA doesn't apply.

[00:05:39] Speaker 04:
And the standard, of course, is set forth not only in the Supreme Court's decision in SWINT, but also this Court's decision in ARC of California.

[00:05:51] Speaker 04:
And the issue is whether the

[00:05:55] Speaker 04:
The independent claim, the Rule 12b6 claim, is inextricably intertwined with the preliminary injunction order.

[00:06:05] Speaker 05:
So that's the part we know.

[00:06:06] Speaker 05:
So could you apply that rule for us, please?

[00:06:08] Speaker 04:
I can.

[00:06:09] Speaker 04:
And they are inextricably intertwined here for a number of reasons.

[00:06:15] Speaker 04:
Yes, of course, the standard for a preliminary injunction is different than the standard for a Rule 12b6 motion.

[00:06:24] Speaker 04:
The rationale of both decisions is, to use the court's words in Arc of California, self-same reason.

[00:06:35] Speaker 04:
But for the court's finding that the PNPA did not apply, there would have been no basis for granting a preliminary injunction in favor of Sinclair and no basis for denying.

[00:06:48] Speaker 03:
But we're only at the motion to dismiss stage here.

[00:06:51] Speaker 03:
We have no idea what the evidence would be at a preliminary injunction hearing.

[00:06:56] Speaker 03:
So I'm not sure that we need to get to who should win at a preliminary injunction hearing stage.

[00:07:02] Speaker 03:
The issue for me is the judge in part denied the preliminary injunction because he didn't think you had it.

[00:07:09] Speaker 03:
You had stated a claim under the PMPA.

[00:07:12] Speaker 03:
If you have, we ought to go back to the judge and say, OK, that's not a reasonable basis for denying.

[00:07:20] Speaker 03:
Go conduct whatever proceedings you need to conduct with respect to the PNPA claims.

[00:07:25] Speaker 03:
I'm not sure we can conclude at this point that you should win under those claims or that there's no basis for not granting Sinclair's motion.

[00:07:33] Speaker 03:
All we know is that the judge refused to address those claims at the preliminary injunction stage, right?

[00:07:38] Speaker 04:
And the court doesn't need to decide that.

[00:07:41] Speaker 03:
So let me ask to those claims.

[00:07:44] Speaker 03:
Judge Fletcher is trying to cut to the chase, so I'm going to try to cut to the chase too.

[00:07:48] Speaker 03:
Let me give you a thesis.

[00:07:50] Speaker 03:
And with respect to Glovis, as I read the statute,

[00:07:56] Speaker 03:
It requires that Glovis obtain gasoline from the refiner, which is to say Sinclair.

[00:08:05] Speaker 03:
And everybody agrees that's not the case here.

[00:08:08] Speaker 03:
So why wasn't the judge correct in dismissing your claims against Glovis?

[00:08:13] Speaker 02:
The PNPA claims.

[00:08:15] Speaker 04:
The PNPA claims.

[00:08:16] Speaker 04:
Well, there's no dispute that Glovis was Can-Am's distributor.

[00:08:21] Speaker 04:
regardless of where... Oh, great.

[00:08:23] Speaker 03:
Wait, they're a distributor, and as I read this statute, which is not the easiest statute in the world to read, but that's what we get paid for, I think the statute says it... I think the statute is fairly read to say, with respect to a distributor, he's not such a refiner who signed a contract, but a distributor, he has to obtain

[00:08:45] Speaker 03:
is gasoline from the refiner in order for the statutory definition to apply.

[00:08:52] Speaker 03:
And they don't in this case.

[00:08:54] Speaker 03:
So focus only on Clovis, not on Sinclair.

[00:08:57] Speaker 03:
Why wasn't the district court right?

[00:08:58] Speaker 04:
Well, the statute doesn't say that, with all due respect, Your Honor.

[00:09:01] Speaker 04:
And it has not been interpreted that way.

[00:09:03] Speaker 04:
And in fact, if you were to fill up your car

[00:09:08] Speaker 04:
with Sinclair Gas in California is refined by Union 76.

[00:09:13] Speaker 04:
You know, oil companies authorized one and... What difference does that make?

[00:09:17] Speaker 03:
I don't care what gas goes in my car when I fill it up.

[00:09:20] Speaker 03:
I'm asking you what the statute says.

[00:09:23] Speaker 03:
And the statute... The last clause of the statute seems to squarely apply to your situation, to this situation, which is to say the distributor is the person you're suing and the distributor

[00:09:37] Speaker 03:
doesn't get motor fuel from the refiner.

[00:09:41] Speaker 04:
The distributor has to be licensed to use the refiner's trademark.

[00:09:46] Speaker 03:
Of course.

[00:09:47] Speaker 03:
That's a requirement.

[00:09:48] Speaker 03:
But doesn't say something more, it says, or by a refiner which supplies motor fuel to the distributor.

[00:09:55] Speaker 03:
The licensing part by the refiner we understand.

[00:09:58] Speaker 03:
But doesn't the refiner also have to supply motor fuel to the distributor?

[00:10:04] Speaker 04:
Well, in this case, of course, we haven't asked

[00:10:08] Speaker 04:
the district court.

[00:10:09] Speaker 04:
or this court to decide who the franchisor was under the PMPA.

[00:10:14] Speaker 04:
It could have been Sinclair.

[00:10:17] Speaker 03:
We're not dealing with Sinclair.

[00:10:19] Speaker 03:
You may have a great argument about Sinclair.

[00:10:21] Speaker 03:
I'm asking about Glovis.

[00:10:23] Speaker 03:
And the district court, this is what the district court ruled.

[00:10:26] Speaker 03:
The district court said, I read this statute as required.

[00:10:29] Speaker 03:
Now, you may have misread it with respect to Sinclair.

[00:10:32] Speaker 03:
But I read this statute as requiring that the distributor obtain his gas from the refiner.

[00:10:38] Speaker 03:
And tell me why he misread the statute.

[00:10:43] Speaker 04:
The statute requires simply that the contract be for the supply of motor fuel.

[00:10:51] Speaker 04:
It clearly was.

[00:10:53] Speaker 04:
And the distributor in this case, Glovis was identified in all of the contracts as the distributor.

[00:11:02] Speaker 04:
And Glovis recognized that it was subject to the PNPA.

[00:11:05] Speaker 04:
In fact, the notices that it sent

[00:11:08] Speaker 04:
to Can-Am included the notice required by the PNPA.

[00:11:14] Speaker 03:
But doesn't your interpretation simply read the final clause, which begins or by a refiner, out of the statute?

[00:11:22] Speaker 04:
No, Your Honor, because the statute applies regardless of who actually supplies the motor fuel and what every decision applying the PNPA until now, until this one.

[00:11:37] Speaker 04:
has said is that it is the license to use a refiners trademark that determines the existence of a PNPA.

[00:11:46] Speaker 03:
So your answer to my question is yes.

[00:11:47] Speaker 03:
Your interpretation does read the final clause of the statute.

[00:11:50] Speaker 04:
Well, Noah, the way the statute has been interpreted by every other court that we're aware of.

[00:11:58] Speaker 03:
OK, and they may all be right and I may be wrong, but I'm asking a very specific question.

[00:12:02] Speaker 03:
What purpose is the final clause in the statute under your interpretation of it?

[00:12:09] Speaker 03:
The final clause being or by refiner which with supplies motor fuel to the distributor which authorizes or permits such use The statute and the contracts between the parties Allow them to use agents Absolutely, we all agree about it and that's what they do and so we just I'm just trying to figure out whether they meet the definition of franchise under the statute

[00:12:39] Speaker 03:
And the statute has a provision defining what a franchise is.

[00:12:43] Speaker 03:
And the last clause, if it doesn't apply to Glovis, would never apply to anybody, would it?

[00:12:49] Speaker 04:
Would it apply to anybody?

[00:12:50] Speaker 04:
Yeah.

[00:12:51] Speaker 04:
I mean, it would be completely unnecessary.

[00:12:53] Speaker 04:
No, it wouldn't apply to anybody.

[00:12:55] Speaker 04:
It applies only to a distributor like this one that had a license from a refiner, in this case Sinclair,

[00:13:04] Speaker 04:
to sell motor fuel.

[00:13:05] Speaker 03:
But the last clause also requires that the refiner supply motor fuel to the distributor.

[00:13:11] Speaker 03:
And so I'm trying to figure out, under your reading of the statute, do those words have any meaning?

[00:13:17] Speaker 04:
The refiner can allow a third party to supply.

[00:13:21] Speaker 04:
Of course he can.

[00:13:21] Speaker 03:
That's not the question.

[00:13:22] Speaker 03:
The question is whether or not that meets the definition of a franchise under this statute.

[00:13:29] Speaker 03:
They're allowed to set up their arrangements however they want.

[00:13:32] Speaker 03:
I'm just trying, I'm not sure you're helping me get past my concern that I think Glovis is in a different situation than Sinclair.

[00:13:40] Speaker 04:
Well, in this case Sinclair controlled the license, controlled the trademark and rather than supply the motor fuel itself, allowed Glovis to buy the fuel from a third party because

[00:13:56] Speaker 04:
Sinclair at the time did not have refining capacity in the PNW.

[00:14:01] Speaker 02:
Just as a factual matter, Globus is always delivering fuel that is not Sinclair fuel.

[00:14:07] Speaker 04:
Well, the fuel was never refined by Sinclair, but the fuel also was never actually delivered by Globus either.

[00:14:18] Speaker 04:
And when the parties signed the contract, they agreed that a third party distributor,

[00:14:26] Speaker 04:
here in the Pacific Northwest could deliver the fuel.

[00:14:29] Speaker 04:
Glovis collected millions of dollars for it, but it never actually delivered the fuel.

[00:14:34] Speaker 04:
And the contract also said, and this is unusual, but it says this, it says that the sublicense will remain, or the sublicense obligates Can-Am to buy motor fuel from Glovis only while Glovis is actively involved with the arrangement.

[00:14:53] Speaker 04:
So if Glovis were no longer actively involved, Can-Am could still purchase from the same local distributor and the contract would remain in place.

[00:15:04] Speaker 04:
And that's exactly what happened here after Glovis breached and stopped performing in July of 2023.

[00:15:10] Speaker 05:
Did you want to save any time because you're out of time?

[00:15:13] Speaker 04:
I saved reserve time for rebuttal.

[00:15:16] Speaker 05:
But you didn't.

[00:15:16] Speaker 05:
You just went through it.

[00:15:17] Speaker 05:
So I'm going to ask you to stop there.

[00:15:20] Speaker 05:
I see.

[00:15:20] Speaker 05:
I'll ask you to stop there, and we'll put two minutes on the clock when you come back.

[00:15:25] Speaker 04:
All right.

[00:15:25] Speaker 04:
Wonderful.

[00:15:25] Speaker 04:
Thank you, Your Honor.

[00:15:35] Speaker 00:
May it please the court?

[00:15:38] Speaker 00:
I'm Abby Reisner.

[00:15:39] Speaker 00:
I will be using 10 minutes of our time, and Glovis's counsel will use the remaining five minutes of time.

[00:15:46] Speaker 00:
The district court correctly entered a preliminary injunction here, and I hear a lot of interest about the PMPA.

[00:15:51] Speaker 00:
But before we get into that interesting topic, and I understand I'm a PMPA lawyer, it's interesting, I want to address why the appellant is trying to shoehorn in an earlier order that is not properly on appeal at this time.

[00:16:08] Speaker 00:
They belatedly addressed it in their reply motion, but did not even initially acknowledge the issue of pendant jurisdiction.

[00:16:15] Speaker 00:
And before we get there, we know that's happening because Can-Am has already complied fully with the injunction.

[00:16:26] Speaker 05:
Can am removed have to that makes it tough to sort of wind the high rewind the hands of time but but we are where we are and if we think there was a real mistake made in the motion to dismiss what do we do

[00:16:39] Speaker 00:
Well, let me get to that because the issue is this court can only exercise pendant jurisdiction and you have discretion to do so or not do so if it falls within SWIN's inextricably intertwined standards.

[00:16:55] Speaker 03:
Let me pose the same issue I did to your friend.

[00:17:00] Speaker 03:
The district judge says

[00:17:02] Speaker 03:
I'm at the preliminary injunction stage now.

[00:17:04] Speaker 03:
The judge says, forget about the PMBA claims.

[00:17:07] Speaker 03:
I've already dismissed them.

[00:17:08] Speaker 03:
So I'm not worried about them.

[00:17:10] Speaker 03:
And now I'm only going to worry about these other claims.

[00:17:12] Speaker 03:
Let's assume that the judge was wrong.

[00:17:15] Speaker 03:
We all want to get to that issue in dismissing the PMBA claims.

[00:17:20] Speaker 03:
Isn't

[00:17:20] Speaker 03:
It's not.

[00:17:21] Speaker 03:
And here's why.

[00:17:29] Speaker 00:
First, if you set aside their characterization of the preliminary injunction order and actually look at it, it's what you're saying, Your Honor.

[00:17:38] Speaker 00:
The judge district court simply recognizes that the PMP a claim has already been dismissed.

[00:17:44] Speaker 00:
He adds a footnote noting that no one submitted supplemental briefing following that dismissal that occurred months earlier before this preliminary injunction order.

[00:17:53] Speaker 00:
They are not an extricably intertwined under the long line of cases.

[00:17:57] Speaker 00:
where this court has exercised pendant jurisdiction because there are different legal standards.

[00:18:03] Speaker 00:
And your law says that if different legal standards have to be applied, it's not inextricably intertwined.

[00:18:10] Speaker 00:
So let's talk about what that different legal standard is.

[00:18:12] Speaker 00:
First, under the preliminary injunction, he was applying a Rule 65 winter test.

[00:18:19] Speaker 00:
That's the legal standard.

[00:18:21] Speaker 00:
At the MTD stage, at the Rule 12b6 stage, it was a plausibility, Twombly, ICBAL standard.

[00:18:28] Speaker 00:
Completely different standard.

[00:18:30] Speaker 00:
If you add in an additional layer of the PMPA, that again adds an entirely separate legal standard that would have to be analyzed.

[00:18:38] Speaker 05:
Isn't the problem that if the claim had not been dismissed at the motion to dismiss stage, then when he went to the preliminary injunction stage, he wouldn't have been applying the winter standard?

[00:18:48] Speaker 00:
If the PMPA issue claim had still been live at the preliminary injunction stage, he potentially would have been applying a different standard, but it wasn't.

[00:18:57] Speaker 05:
But isn't that why they're intertwined?

[00:19:00] Speaker 05:
Isn't that the problem?

[00:19:01] Speaker 05:
At the top of the decision tree when we get to the preliminary injunction stage, if we think that the claim shouldn't have been dismissed at the 12b6 stage, it seems to me there's a problem.

[00:19:11] Speaker 05:
And we don't know what the judge would have done had the other standard been applied.

[00:19:14] Speaker 00:
But that essentially is saying that any time a court subsequently in a case reaches a summary judgment point, a Daubert point, a Motion and Lemonade point, that they have to pause and reconsider the legal framework for issues that have previously been dismissed.

[00:19:28] Speaker 00:
And that simply isn't what inextricably intertwined means.

[00:19:31] Speaker 00:
These cases from the court, Hilton and Armstrong, have said that if the court can consider and make clear that the properly appealable order can be resolved, that's the preliminary injunction order here, without resolving the pendant order, they are not inextricably intertwined.

[00:19:50] Speaker 03:
That's my problem.

[00:19:52] Speaker 03:
It can't be resolved if in fact... So let's assume that the judge did exactly what he was supposed to do with respect to

[00:20:01] Speaker 03:
the non-PMPA issues and therefore issued a preliminary injunction.

[00:20:06] Speaker 03:
But if in fact that preliminary injunction should not have been issued if the PMPA applied, then aren't they inextricably intertwined?

[00:20:15] Speaker 00:
They're not, again, because they would be requiring application of different standards.

[00:20:20] Speaker 00:
That's right.

[00:20:20] Speaker 03:
That's the point.

[00:20:21] Speaker 00:
Your questions earlier highlighted this when you were talking to him about the PMPA claim was at the motion to dismiss phase.

[00:20:28] Speaker 00:
Again, that's a plausibility standard.

[00:20:30] Speaker 00:
He wasn't finding anything.

[00:20:31] Speaker 00:
No, I understand.

[00:20:32] Speaker 00:
He was interpreting a statute, counsel.

[00:20:33] Speaker 00:
He was interpreting a statute.

[00:20:35] Speaker 00:
He was interpreting the statute.

[00:20:36] Speaker 03:
That's right.

[00:20:36] Speaker 05:
And we do that de novo.

[00:20:38] Speaker 03:
Maybe it would be helpful because you're reusable.

[00:20:41] Speaker 03:
You used a lot of your time on a pending jurisdiction, and I appreciate the arguments.

[00:20:45] Speaker 03:
But let's assume we get to the merits of the claim against Sinclair.

[00:20:51] Speaker 03:
The judge said the claim against Sinclair fails because Sinclair didn't supply motor fuel to the plaintiff.

[00:21:04] Speaker 03:
It seems to me that when we deal with Sinclair, who would be such refiner under the definition, the last clause, which is the only clause that talks about supplying motor fuel, doesn't apply.

[00:21:17] Speaker 03:
Could you address that?

[00:21:20] Speaker 00:
Are you referring to the questions that you were asking appellate people?

[00:21:22] Speaker 03:
Well, no, I was asking him a different.

[00:21:24] Speaker 03:
I was asking him with respect to Glovis.

[00:21:27] Speaker 03:
Now, I'm asking a question with respect to Sinclair, which is the refiner.

[00:21:31] Speaker 03:
And as I read the statute, because the last words before the phrase that begins or by a refiner talk about such refiner, that's a refiner with a contract.

[00:21:45] Speaker 03:
And the district court found there was a contract between Sinclair.

[00:21:49] Speaker 03:
and the plaintiff.

[00:21:51] Speaker 03:
And so it was a contract under which they could use your trademark.

[00:21:55] Speaker 03:
And so it seems to me that the statute therefore applies without any requirement that you also supply them with fuel.

[00:22:03] Speaker 03:
Tell me why I'm wrong.

[00:22:05] Speaker 00:
You're wrong because, one, we have to keep in mind that when you say he found there was a contract, what he found, if you look at the language in the Rule 12b6 order, was that if the allegations are proven to be true, it's a plausibility.

[00:22:17] Speaker 00:
You're right.

[00:22:17] Speaker 00:
I'm sorry.

[00:22:18] Speaker 03:
I'm sorry.

[00:22:18] Speaker 03:
Plausibly flat a contract.

[00:22:19] Speaker 00:
You're right.

[00:22:20] Speaker 00:
And so that assumes a lot of facts.

[00:22:21] Speaker 00:
And again, this really emphasizes why.

[00:22:23] Speaker 00:
Why are we taking up this issue now?

[00:22:25] Speaker 00:
We're not saying that they can't appeal the PMPA order.

[00:22:28] Speaker 03:
I asked you to forget about pending jurisdiction.

[00:22:32] Speaker 00:
No, not.

[00:22:32] Speaker 03:
The district court found there plausibly was they plausibly pleaded a contract.

[00:22:37] Speaker 03:
And I'm asking you why that contract to use the trademark.

[00:22:41] Speaker 03:
I'm asking you why under the definition in the statute, that's not enough to make a plausible allegation that Sinclair is a franchiser.

[00:22:50] Speaker 00:
Because the PMPA does not establish a relationship between the refiner and the third party three-tier relationship.

[00:22:58] Speaker 03:
Yeah, but you're arguing that there's not a contract.

[00:23:00] Speaker 03:
See, the district court said they've plausibly pled that you entered into a contract with them through this various web of things.

[00:23:08] Speaker 03:
He may have been wrong on that, but we can't review it.

[00:23:11] Speaker 03:
I mean, we have to review it if we take this issue up.

[00:23:13] Speaker 03:
And so if he was right about that,

[00:23:16] Speaker 03:
Isn't it clear that there's not an additional requirement under the statute that you supply fuel to them, which was the basis for his ruling?

[00:23:27] Speaker 00:
Under 2801, if there is a contract and the refiner is permitting or authorizing the use of the trademark in the connection with the sale or distribution of motor fuel, which the district court concluded we were not.

[00:23:41] Speaker 03:
So that's what I'm getting.

[00:23:42] Speaker 03:
The district court concluded that the sale or distribution

[00:23:45] Speaker 03:
The in connection with language implied that it had to be your gasoline.

[00:23:52] Speaker 00:
Correct.

[00:23:53] Speaker 03:
So now let's take the last clause.

[00:23:54] Speaker 03:
The last clause actually talks about supplying from the refiner to the distributor.

[00:24:02] Speaker 03:
And so I don't understand how we can read the former clause as also importing that requirement.

[00:24:08] Speaker 00:
Well, it's the language that the district court highlighted about in connection with the sale, consignment, or distribution of motor fuel.

[00:24:14] Speaker 00:
You know, there's a number of cases that talk about the essence of a franchise relationship, a PMPA franchise relationship, is a contract for the sale or distribution of motor fuel.

[00:24:24] Speaker 00:
That's Kermani.

[00:24:25] Speaker 00:
The Burke Oil case, I believe district court also cited, talks about a contract for the distribution of motor fuel.

[00:24:31] Speaker 03:
28 0 1 1 B talks about a contract pertaining to supply of fuel and so that's further down those were the facts in those cases but or but is there is there any case that says That it's not a franchise if the contract allows somebody else to bring the fuel to you But you allow them to use your trademark

[00:24:54] Speaker 00:
Well, the Burke oil talks about that it requires the distribution of motor fuel.

[00:25:00] Speaker 03:
But there is a distribution of motor fuel.

[00:25:01] Speaker 03:
That's not the issue.

[00:25:02] Speaker 03:
The question is, is there any case that supports your position that this doesn't mean there's not a franchise if, although you give them permission to use your trademark,

[00:25:15] Speaker 03:
your contractual relations with them provide that the fuel is going to be supplied by somebody else.

[00:25:22] Speaker 00:
This is an unusual situation in the PMPA context, so I will acknowledge that there are not a lot of cases in this context.

[00:25:28] Speaker 00:
The Lascaux case, actually cited by the appellant, however, notes that under a literal reading of the statute, the PMPA,

[00:25:35] Speaker 00:
A franchise could be said to exist between a retailer and a distributor, only if an oil refiner whose trademark is being authorized for use actually supplies motor fuel.

[00:25:46] Speaker 00:
I like to consider that we take literal readings of statutes, right?

[00:25:50] Speaker 00:
That's our job.

[00:25:52] Speaker 00:
And so that is how the Lasco Corps interpreted the provision you're talking about.

[00:25:56] Speaker 05:
Council, you're out of time.

[00:25:57] Speaker 00:
Thank you.

[00:25:58] Speaker 05:
Thank you.

[00:25:59] Speaker 00:
We appreciate your help.

[00:26:08] Speaker 01:
Good morning.

[00:26:09] Speaker 01:
May it please the court, Ryan Vollins for Glovis America, Inc.

[00:26:15] Speaker 01:
So starting with the pendant jurisdiction, the threshold issue raised on appeal here is, did the district court commit error in ruling on the injunctive orders?

[00:26:31] Speaker 01:
And here, that question can only be determined.

[00:26:35] Speaker 01:
It did not.

[00:26:37] Speaker 01:
Appellant's proposition is, was it air for the district court to not apply a PMPA standard for injunctive relief when there were no PMPA claims alive in the case?

[00:26:51] Speaker 01:
That is not, that there's no air there.

[00:26:54] Speaker 01:
There cannot be, based on the posture of the case and the claims that existed.

[00:26:58] Speaker 01:
That makes clear the only basis, the real motivation for this appeal

[00:27:05] Speaker 01:
is to pursue the interlocutory ruling on the 12b6 orders.

[00:27:10] Speaker 01:
And SWINT v. Chambers explicitly discourages the use of this practice to exercise pendant jurisdiction.

[00:27:18] Speaker 01:
So the policy reasons alone dictate that it would be inappropriate to exercise pendant jurisdiction.

[00:27:23] Speaker 03:
What's the status of the litigation in the district court?

[00:27:26] Speaker 03:
How far away are we from final judgment?

[00:27:28] Speaker 01:
Discover a discovery closed yesterday, so I think the next deadlines coming up or dispositive motions a trial date set Trial is off the top of my head.

[00:27:38] Speaker 01:
I don't know the date March.

[00:27:40] Speaker 01:
Yes, March of next year.

[00:27:42] Speaker 01:
Yes, okay Sorry your honor So understanding that the policy would not dictate taking up the interlocutory ruling at this juncture

[00:27:54] Speaker 01:
Even turning to the scenarios under the Armstrong matter that dictate when the exercise of pendant jurisdiction would be appropriate, they're still not satisfied here.

[00:28:05] Speaker 01:
The first scenario in which the two issues are, I always stumble on this word, inextricably intertwined.

[00:28:14] Speaker 01:
They're simply not, because we're kind of confusing what that means.

[00:28:18] Speaker 01:
So injunctive orders.

[00:28:21] Speaker 01:
Did the court commit error by not applying

[00:28:24] Speaker 01:
PMPA standard when there are no PMPA claims.

[00:28:28] Speaker 01:
That's a simple issue that can be resolved in about four seconds.

[00:28:31] Speaker 01:
That's clearly not error.

[00:28:34] Speaker 03:
Well maybe, clearly not error is not, it's not a hill you need to climb because I'm not sure you're right.

[00:28:44] Speaker 01:
All right, your honor.

[00:28:45] Speaker 01:
The second issue, the interlocutory 12b6 orders, as counsel noted, that is an ickball and twombly determination

[00:28:55] Speaker 01:
in the pleading requirements for a colorable PMPA claim.

[00:28:59] Speaker 01:
The analysis and issues are entirely different, and the appellant wants us to operate under the assumption that inexplicably intertwined means that an earlier ruling has an impact on a subsequent ruling.

[00:29:11] Speaker 01:
And that is not how inexplicably intertwined

[00:29:15] Speaker 01:
is determined or interpreted and applied.

[00:29:18] Speaker 01:
I'm sorry, Your Honor, you have a question.

[00:29:19] Speaker 01:
Oh, and applied.

[00:29:22] Speaker 01:
If that were so, there would be countless initial interlocutory rulings that folks could just bring up through raising appeals on collateral orders to challenge them.

[00:29:35] Speaker 01:
Just saying, ruling one in a case and interlocutory ruling subsequently impacted the course of litigation downstream.

[00:29:43] Speaker 03:
That's not how it's interpreted.

[00:29:45] Speaker 03:
So your argument is that even if the judge erred in dismissing the PMBA claims, that doesn't necessarily mean he was wrong in his preliminary injunction hearing.

[00:29:58] Speaker 03:
Because we don't know that even if they stated a claim, whether they would have been sufficient to alter the preliminary injunction ruling.

[00:30:06] Speaker 01:
Yes, Your Honor, you're right.

[00:30:07] Speaker 01:
And that relates to the second scenario under Armstrong, which is,

[00:30:12] Speaker 01:
would revisiting the 12b6 order necessarily resolve the issue raised on appeal on the injunctive order?

[00:30:20] Speaker 01:
And the answer to that question's already been answered, essentially alluded to by the court.

[00:30:25] Speaker 01:
It would not, because we don't know.

[00:30:26] Speaker 01:
We could not know.

[00:30:28] Speaker 01:
And that's why we typically don't bring up these interlocutor.

[00:30:31] Speaker 02:
You could not know what?

[00:30:33] Speaker 01:
How that issue could play out if a different standard were applied.

[00:30:38] Speaker 01:
And that makes all the more

[00:30:40] Speaker 02:
Inappropriate putting to one side standard in terms of what level of proof or you need to do whether it's a an ordinary standard or whether it's a PMPA standard and for granting the relief Would it make a difference or could it make a difference to the judges analysis and the injunction that's in front of us it?

[00:31:01] Speaker 02:
a different understanding of the PMPA?

[00:31:04] Speaker 02:
Because my view, I'll just say it frankly, is I think the judge missed the PMPA.

[00:31:09] Speaker 02:
I think he misinterpreted it.

[00:31:11] Speaker 02:
If he interpreted it properly, would that affect the outcome of the question in front of us?

[00:31:16] Speaker 01:
I think it's a fair point, Your Honor, and I certainly think it could open the possibility.

[00:31:21] Speaker 01:
But under the district court's order on the preliminary injunctions,

[00:31:26] Speaker 01:
It certainly would indicate that it would not under the circumstances and facts of the case at that posture in which it was before the court.

[00:31:34] Speaker 01:
The station, you know, had operated for X amount of time without the branding.

[00:31:40] Speaker 01:
Well, and at this juncture, it has de-branded.

[00:31:42] Speaker 01:
It continues to facilitate getting its own fuel through space age.

[00:31:46] Speaker 03:
But the standard under the PNPA is quite different.

[00:31:49] Speaker 03:
The standard says

[00:31:51] Speaker 03:
The question is the hardships imposed on your side as opposed to the hardships imposed on his side.

[00:31:56] Speaker 03:
And that's a really different analysis than the Wonders analysis, isn't it?

[00:32:01] Speaker 01:
Yes, Your Honor.

[00:32:02] Speaker 01:
I think we could all agree it is a different analysis.

[00:32:05] Speaker 01:
And frankly, it's a lower burden under the PNPA.

[00:32:09] Speaker 01:
That's the problem.

[00:32:10] Speaker 01:
But the court's analysis in its injunctive order makes clear it doesn't just rest on

[00:32:17] Speaker 01:
Can am did not sustain will not sustain irreparable harm So I'm denying its motion.

[00:32:23] Speaker 01:
It says because of all of these factors Balancing the harms it still would not support granting the injunctive relief that can am sought at that juncture Thank you counsel.

[00:32:35] Speaker 05:
You're well over your time, so I'm going to ask you to stop there We'll just hear two more minutes rebuttal, please Thank you your honor the preliminary injunction order itself

[00:32:44] Speaker 04:
said that the status quo that Can-Am sought to preserve, the status quo as of July 10, 2023, would have been, as stated by Can-Am, but for an intervening event.

[00:32:57] Speaker 04:
That intervening event was the notice of non-renewal.

[00:33:01] Speaker 02:
Here's a question for you that may seem like it's out of left field.

[00:33:05] Speaker 02:
Instead of taking this appeal, why didn't you ask for an order from the district court under

[00:33:13] Speaker 02:
Section 1292 be just appealing the issue with respect to the PMP a Because you could have done that immediately you could have done it cleanly instead of trying to shoehorn it into this form of pendant jurisdiction Well your honor I suppose we could have done that we were trying to do we pardon me.

[00:33:34] Speaker 04:
Can you do it now?

[00:33:36] Speaker 04:
That's that's

[00:33:37] Speaker 04:
I don't know the answer to that.

[00:33:38] Speaker 04:
That's a good question, perhaps we can.

[00:33:39] Speaker 02:
Maybe you could do it if we told the district judge to allow him to do it.

[00:33:46] Speaker 02:
Immediately denied our motion to stay pending appeal that took a day or two and so here we are But what I'm trying to do is figure out how we get a decision with respect to the PMP a from this court early enough that they'll do some good to the parties because I have a feeling that we as a panel might disagree with the district judge's conclusion as to the PMP a well

[00:34:10] Speaker 04:
All we're trying to do, of course, is preserve the status quo.

[00:34:14] Speaker 05:
But the status quo, that kind of ship has sailed.

[00:34:16] Speaker 05:
That's the other part of the problem at this point.

[00:34:18] Speaker 04:
It is, but the PNPA jurisprudence, including this court's... You're trying to restore the status quo, Ante, not preserve the status quo.

[00:34:28] Speaker 04:
Preserve the status quo when the case was filed.

[00:34:31] Speaker 05:
So what would happen right now if we took up your suggestion?

[00:34:35] Speaker 05:
and we agreed that there's penitent jurisdiction and we agreed that the wrong standard was applied and we remanded.

[00:34:42] Speaker 05:
What would we be handing back to the district court?

[00:34:47] Speaker 04:
This court's president, Hilo,

[00:34:49] Speaker 04:
says that the issue of market withdrawal cannot be resolved on preliminary injunction.

[00:34:53] Speaker 04:
It's an ultimate issue for trial.

[00:34:55] Speaker 03:
And that's the issue that the judge actually ruled on.

[00:34:59] Speaker 03:
So we have no doubt that's in front of us.

[00:35:02] Speaker 03:
But that's not the question.

[00:35:05] Speaker 03:
We're asking you, how is it that we can rule on the PMPA issues?

[00:35:11] Speaker 04:
They're inextricably intertwined.

[00:35:13] Speaker 04:
I stumble on that phrase, too.

[00:35:15] Speaker 04:
I'm going to say joined at the hip.

[00:35:18] Speaker 04:
And they're joined at the hip.

[00:35:19] Speaker 04:
There were seven briefs filed before the preliminary injunction order was issued.

[00:35:26] Speaker 04:
Six of them addressed the PNPA.

[00:35:29] Speaker 04:
Can-Am's opening brief addressed the PNPA.

[00:35:33] Speaker 04:
Sinclair's brief in support of this motion for preliminary injunction addressed the PNPA.

[00:35:41] Speaker 04:
Sinclair's opposition to Can-Am's motion addressed the PNPA, Glovis's opposition to Can-Am's motion addressed the PNPA, Can-Am's opposition to Sinclair's motion for preliminary injunction addressed the PNPA, and Can-Am's reply brief addressed the PNPA.

[00:36:04] Speaker 04:
The only brief that didn't address the PNPA was Sinclair's reply brief because

[00:36:09] Speaker 04:
the district court's rule 12b6 order came out just before Sinclair's reply brief was due.

[00:36:17] Speaker 04:
So these are clearly inextricably intertwined, and the record shows that, no matter how much counsel may argue to the contrary.

[00:36:26] Speaker 05:
You're over your time.

[00:36:27] Speaker 05:
I want to thank you all for your advocacy.

[00:36:28] Speaker 05:
We appreciate it very much.

[00:36:30] Speaker 05:
We're going to take this matter under advisement and stand in recess for the day, actually for the week.

[00:36:39] Speaker 02:
All rise.

[00:36:39] Speaker 01:
The court stands adjourned for the week.

[00:36:49] Speaker 01:
Thank you.