NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 06a0303n.06

Filed: May 2, 2006

No. 05-1563

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOY & MIDDLEBELT SUNOCO, INC;

MAROUN FAWAZ,

Plaintiffs-Appellees,

v.

FUSION OIL, INC.,

Defendant-Appellant,

SUNOCO, INC.,,

Defendant

 /

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF MICHIGAN

BEFORE: MOORE, COLE, and CLAY, Circuit Judges.

CLAY, Circuit Judge. Defendant, Fusion Oil, appeals a March 17, 2005 order of the

United States District Court for the Eastern District of Michigan, holding Defendant in contempt of

a preliminary injunction, imposing coercive sanctions, and awarding Plaintiffs, Joy & Middlebelt

Sunoco, Inc. and Maroun Fawaz, compensatory damages. For the reasons set forth below, we

DISMISS the appeal for lack of subject-matter jurisdiction.
No. 05-1563

2

I.

Plaintiffs, Joy & Middlebelt Sunoco, Inc. and owner Maroun Fawaz, operated a gas station

in Westland Michigan through a franchise agreement with Defendant Sunoco, Inc. On December

14, 2004, Plaintiffs filed a complaint in the United States District Court for the Eastern District of

Michigan against Defendants Sunoco, Inc. and Fusion Oil, Inc. The complaint alleged that

Defendant Sunoco violated the Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801-06, by

assigning its franchise agreement with Plaintiff Joy & Middlebelt to Defendant Fusion Oil. The

complaint further alleged that Defendant Fusion Oil violated the Petroleum Marketing Practices Act

by failing to negotiate and renew the franchise agreement in good faith and by unilaterally raising

rent. 

On January 4, 2005, the district court entered a preliminary injunction in the instant action,

requiring Defendant Fusion Oil to continue daily fuel deliveries to Plaintiffs. The preliminary

injunction set the price of fuel at 3 cents above the rack price. Despite the preliminary injunction,

between January 21, 2005 and January 28, 2005, Defendant Fusion Oil refused to deliver fuel to

Plaintiffs. Plaintiffs moved for sanctions. On March 17, 2005, the district court issued an order

holding Defendant Fusion Oil in contempt of the preliminary injunction. The court ordered

Defendant Fusion Oil to pay Plaintiffs $7,000 in compensatory damages for the period between

January 21 and 28, 2005, as well as $1,000 per day until arrangements were made for fuel delivery.

Additionally, the order reaffirmed the fuel price set forth in the January 4, 2005 preliminary

injunction.
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On March 30, 2005, however, the parties agreed to dissolve the January 4, 2005 preliminary

injunction. As a condition of the agreement, Plaintiffs agreed to return possession of the Westland

gas station to Defendant Fusion Oil. The district court officially dissolved the preliminary

injunction on April 7, 2005, thereby relieving Defendant Fusion Oil of the duty to deliver fuel to

Plaintiffs at 3 cents above the rack price and correspondingly the obligation to pay $1,000 per day

until reaching compliance. Additionally, the district court ordered Plaintiffs to return possession of

the Westland station to Defendant Fusion Oil immediately. Plaintiffs’ claims under the Petroleum

Marketing Act, as well as Defendant Fusion Oil’s counter-claims, are now pending with in the

district court. Nonetheless, on April 13, 2005, Defendant Fusion Oil appealed the March 17, 2005

contempt order. 

II.

In its brief on appeal, Defendant Fusion Oil asserted jurisdiction under 28 U.S.C. §§ 1291

and 1292(a). Plaintiffs challenged Defendant’s conclusory jurisdictional assertions in its response

briefs, yet Defendant failed to file a reply brief explaining the basis for this Court’s jurisdiction.

Therefore, Defendant failed to meet its burden of establishing this Court’s jurisdiction; therefore we

hereby dismiss this suit. See United States v. Layne, 192 F.3d 556, 566 (1999) (holding that issues

which are not “fully developed and argued” on appeal or are addressed in a “perfunctory manner”

are waived for appellate review). 

Although Defendant’s failure to argue subject-matter jurisdiction alone is sufficient grounds

for dismissal, we note that neither 28 U.S.C. § 1291 nor § 1292 provide this Court with subjectmatter jurisdiction over the instant appeal. Section 1291 grants this Court jurisdiction to hear
No. 05-1563

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appeals from “final orders” of the district courts, whereas § 1292 grants this Court jurisdiction to

hear appeals from orders “granting, continuing, modifying, refusing or dissolving injunctions, or

refusing to dissolve or modify injunctions issuing preliminary injunctions.” 28 U.S.C. §§ 1291,1292

(2006). Inasmuch as the March 17, 2005 order is not a “final order” within the meaning of § 1291,

and is moot as to the extent that it granted injunctive relief, the order is not currently appealable.

First, the March 17, 2005 order is not a final order within the meaning of § 1291. The order

is a civil contempt order, which is not considered a final order in this Circuit. See Peabody Coal Co.

v. Local Union Nos. 1734, 1508, & 1548, United Mine Workers of Am., 484 F.2d 78, 82-83(6th Cir.

1973); see also Coca-Cola Co. v. Purdy, 382 F.3d 774, 792 (8th Cir. 2004); McAlpin v. Lexington

76 Auto Truck Stop, Inc., 229 F.3d 491, 500 (6th Cir. 2000) (“[A] judgment of civil contempt is not

itself a final decree, and therefore is not [itself] appealable in the absence of a final judgment.”)

(internal citations omitted); Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice & Procedure § 3917 (2d ed. 1991) (restating the general rule that civil contempt orders in

pending cases are not appealable as final orders). Civil contempt is distinguished from criminal

contempt in that civil contempt orders impose remedial damages and sanctions intended to coerce

compliance with court orders, whereas criminal contempt orders punish a party for past behavior.

Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829 (1994) (“[A] contempt fine

accordingly is considered civil and remedial if it . . . compensate[s] the complainant for losses

sustained.”) Inasmuch as the March 17, 2005 order granted Plaintiffs compensatory damages and

imposed future payments on Defendant commensurate with estimated future damage to Plaintiffs,

it is a civil contempt order. As such, it is only appealable where some other basis for jurisdiction
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exists, such as a final judgment or an appealable interlocutory order, Baylock v. Checker Oil Co.,

547 F.2d 962, 965 (6th Cir. 1976), or where the appealing party is not a party to the underlying

lawsuit, see Alexander v. United States, 201 U.S. 117 (1906); see also United States ex rel Pogue

v. Diabetes Treatment Ctrs. of Am., Inc., – F.3d – , 2006 WL 908768 (6th Cir. April 11, 1006)

(discussing Alexander).

Section 1292(a) does not provide an alternative basis for subject-matter jurisdiction. The

March 17, 2005 order is moot to the extent it granted injunctive relief appealable under § 1292(a).

The district court’s April 7, 2005 order dissolving the preliminary injunction relieved Defendant of

the obligation to deliver fuel to Plaintiffs. Because Defendant no longer has any obligation to

deliver fuel to Plaintiffs, Defendant has no obligation to pay Plaintiffs $1,000 per day until such

deliveries occur or to sell fuel to Plaintiffs at the price set forth in the March 17, 2005 order.

Accordingly, there is no order granting, denying, or modifying injunctive relief from which

Defendant seeks relief, and we cannot review Defendant’s claims under § 1292(a).

III.

For the foregoing reasons, we DISMISS the instant appeal for lack of subject-matter

jurisdiction.