In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1202

EMMANUEL JOSEPH,

Plaintiff-Appellant,

v.

SASAFRASNET, LLC,

Defendant-Appellee.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 11 C 402 — Harry D. Leinenweber, Judge.

ARGUED OCTOBER 1, 2013 — DECIDED NOVEMBER 4, 2013

Before CUDAHY, RIPPLE, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Plaintiff Emmanuel Joseph

appeals from the district court’s denial of his motion for a

preliminary injunction under the Petroleum Marketing

Practices Act (“PMPA”), 15 U.S.C. § 2801 et seq. Joseph operates

a British Petroleum service station franchise in Chicago,

Illinois. Defendant Sasafrasnet, LLC is an authorized distributor of BP products and is Joseph’s franchisor.
2 No. 13-1202

In November 2010, Sasafrasnet provided Joseph with notice

of its intent to terminate his franchise based on three occasions

in July 2010 when Sasafrasnet attempted to debit Joseph’s bank

account to pay for fuel deliveries but payment was denied for

insufficient funds (“NSF”). Joseph sought a preliminary

injunction to enjoin Sasafrasnet’s termination. In May 2011, the

district court denied an injunction, finding that Joseph failed to

meet his burden for a preliminary injunction under 15 U.S.C.

§2805(b)(2)(A)(ii) to show that “there exist sufficiently serious

questions going to the merits to make such questions a fair

ground for litigation.”

Joseph appealed that denial, and we remanded to the

district court for additional findings and conclusions on very

specific questions regarding whether Joseph’s NSFs in July

2010 amounted to “failures” under the PMPA. Joseph v.

Sasafrasnet, LLC, 689 F.3d 683 (7th Cir. 2012). A brief explanation of the statute is necessary to understand our remand.

Section 2802(b)(2)(C) authorizes a franchisor to terminate a

franchise if an event occurs that is relevant to the franchise

relationship. 15 U.S.C. §2802(b)(2)(C). Section 2802(c) lists

twelve types of events that constitute such a relevant event

“and as a result of which termination of the franchise ... is

reasonable,” but the list is not exhaustive of the category of

relevant events. One such type of event is a “failure by the

franchisee to pay the franchisor in a timely manner when due

all sums to which the franchisor is legally entitled.” 15 U.S.C.

§2802(c)(8). But such an event does not count as a “failure”

under the PMPA if it was “only technical or unimportant to the

franchise relationship,” 15 U.S.C. §2801(13)(A), or if the event
No. 13-1202 3

was “for a cause beyond the reasonable control of the franchisee.” 15 U.S.C. §2801(13)(B).

There is no dispute about whether Joseph failed to make

timely payments in July 2010, but the statutory exceptions for

“technical or unimportant” events or events beyond the

reasonable control of the franchisee might have protected

Joseph from termination. In its first denial of Joseph’s motion

for preliminary injunction, the district court did not address

whether Joseph’s NSFs might not have been “failures,” either

because they were technical or unimportant to the parties’

franchise relationship or because they were beyond Joseph’s

reasonable control. On remand, the district court considered

those questions and found that two of Joseph’s NSFs in July

2010 should count as “failures” under the PMPA justifying

termination, at least to the extent that he did not show he was

entitled to preliminary injunctive relief. Joseph v. Sasafrasnet,

LLC, 2012 WL 6727263 (N.D. Ill. Dec. 28, 2012). Joseph has

appealed again. This time we find no error and affirm.

As we said in our earlier opinion, our review of the district

court’s decision to deny Joseph preliminary relief under the

PMPA is “narrow.” Joseph, 689 F.3d at 689, quoting Moody v.

Amoco Oil Co., 734 F.2d 1200, 1217 (7th Cir. 1984). We “will not

reverse a district court’s grant or denial of a preliminary

injunction absent a clear abuse of discretion by the district

court.” Moody, 734 F.2d at 1217. We review questions of law de

novo and questions of fact for clear error. Burlington N. & Santa

Fe Ry. Co. v. Bhd. of Locomotive Eng'rs, 367 F.3d 675, 678 (7th Cir.

2004).
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Joseph argues that the district court erred in assigning the

burden of proof, putting the burden on Joseph. But as the party

seeking a preliminary injunction, Joseph had the burden of

proof. To merit a preliminary injunction, 15 U.S.C.

§2805(b)(2)(A)(ii) required Joseph to show that “there exist

sufficiently serious questions going to the merits to make such

questions a fair ground for litigation.” The district court

properly applied this standard. 

On remand, the district court found that the second July

2010 NSF was beyond Joseph’s control but the first and the

third were within his control. Joseph, 2012 WL 6727263, at *5–6.

Joseph’s bank account was not adequately funded for

Sasafrasnet’s debit of the account on those occasions because

Joseph had decided to change banks. The first NSF occurred

because he had failed to give Sasafrasnet adequate notice of the

change. The third NSF occurred because Joseph had failed to

ensure a smooth transition between his two open

accounts—the old and the new. The district court found that

these circumstances were entirely within Joseph’s control, and

we find no clear error in those findings.

The district court then went on to consider whether the

NSFs were only “technical” or “unimportant” to the parties’

franchise relationship. Joseph, 2012 WL 6727263, at*7–8.Itfound

that Joseph had a history of making late payments in substantial amounts because of insufficient funds—the invoice amount

for each of the three July 2010 NSFs was over $22,000—and

that Joseph’s delinquent payments were not “technical” or

“unimportant.” Joseph attempts to reargue the facts on appeal,

contending that his late payments were isolated incidents, that

Sasafrasnet’s deadlines were arbitrary, and that his payments
No. 13-1202 5

were late by only a few days, sometimes a few hours. But our

role on appeal is not to reweigh the evidence, but to review

only for clear error. Finding none, we affirm.

AFFIRMED.