IN THE CIRCUIT COURT FOR KNOX COUNTY. TENNESSEE. FILED E5113 ii 35 F. QUIST ATLANTIC COAST CARRIERS, INC., GOLDEN CARRIERS, LLC, BLACHOWSICE TRUCK LINE, INC., And GLAZIER TRUCKING, IN C., Individually and on behalf of others Similarly situated Plaintiffs V. No. 2490-13 PILOT CORPORATION AND PILOT TRAVEL CENTERS LLC d/b/a PILOT Defendants MOTION TO DISMISS AND ANSWER OF DEFENDANTS, PILOT CORPORATION ANDPILOT TRAVEL CENTERS LLC. TO FIRST AMENDED AND RECAST CLASS ACTION COMPLAINT MOTION TO DISMISS Come the Defendants, Pilot Corporation and Pilot Travel Centers LLC, by and through counsel, and herewith moves to dismiss the i<<4222e;2der2' mm' Rizczm.' C/cm/1cz'z'o7z ("Complaint") and in support thereof says as follows: 1. Defendants move to dismiss the Complaint in that the Plaintiffs have failed, pursuant to Rule 8.05 to state those facts necessary to constitute a breach of the statutes so referred. 2. Defendants move to dismiss the Complaint in that the Piaintiffs do not have the requisite standing and/ or are not owed money under the discount or rebate program. 3. The Defendants move to dismiss the Complaint pursuant to Rule 12 in that Plaintiffs have failed to state a claim upon which relief can be granted and have failed to specify or state the damages claimed or sought. 4. Defendants move to dismiss the Complaint in that, as to the counts of breach of contract, the 'Plaintiffs have failed to attach a copy of any such contract or instruments pursuant to Rule 10.03. 5. Pursuant to Rule 12 and Rule 9 of the Tennessee Rules of Civil Procedure, Defendants move to dismiss the Plaintiffs' claims in that they are barred,i1;i xvholirt-got in part by i" Eli-3 . . 1" Plaintiffs' failure to plead with particularity and the claims as to these 4 "ii 217? ea vague and ambiguous. C3 -i I ff:J ANSVVER -- CD Now having moved to dismiss the Complaint, the Defendants, by and O2) in response to the Complaint say as follows: 1. The Defendants deny the Plaintiffs are entitled to bring this cause of action as a class action against the Defendants as set forth in paragraph 1 of the Complaint. 2. The allegations contained in paragraph 2 of the Complaint do not require a response from these Defendants, but to the extent such is response is required, the same are denied. 3. It' is denied that Defendants adopted, promulgated, represented and benefitted from inaccurate rebate procedures and pricing structures for certain customers, including Plaintiffs as alleged in paragraph 3 of the Complaint. 4. The allegations contained in paragraph 4 of the Complaint are denied. 5. The allegations contained in paragraph 5 of the Complaint are denied. 6. The allegations contained in paragraph 6 of the Complaint are denied. 7. It is admitted that Defendants would provide fuel at certain prices, including rebates urchased at their truck sto facilities and travel centers eratin throu hout the counti 1 8 8 7 to many of its customers. It is denied that Defendants provided this to all Plaintiffs. 8. It is admitted that payments for the rebate came in checks. The remaining allegations contained in paragraph 8 of the Complaint are denied. 9. These Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 9 of the Complaint and, thus, must _deny the same. i0. These Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 10 of the Complaint and, dins, inust deny the same. 11. These Defendants are without knowledge or infonnation sufficient to form a belief as to the truth of the allegations contained in paragraph 'll of the Complaint and, thus, must deny the same. '12. It is admitted that on April 18, 2013 an affidavit of FBI Special Agent Robert Root was unsealed by the United States District Court for the Eastern District of Tennessee. 13. These Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 13 of the Complaint and, thus, must deny the same. 14. These Defendants are without knowledge or inforination sufficient to form a . belief as to the truth of the allegations contained in paragraph 14 of the Complaint and, thus, must deny the same. 15. The allegations contained in paragraph 15 of the Complaint are denied. 16. The allegations contained in paragraph 16 of the Complaint are denied. "l7. The allegations contained in paragraph 17 of the Complaint are denied. 18. These Defendants are without knowledge or infonnation sufficient to fonn a belief as to the truth of the allegations contained in paragraph 18 of the Complaint and, thus, must deny the same. 19. The allegations contained in paragraph 19 of the Complaint are denied. 20. It is admitted that Plaintiff Atlantic Coast Carriers, Inc. is a Georgia corporation with its piincipal place of business located at 243 Alma Highway, Hazelhurst, Georgia 31539. 21. It is admitted that Plaintiff Blachowske Truck Line, Inc. is a South Dakota corporation principally located in Brandon, South Dakota with a location in Bainbiidge, Georgia. 22. It is admitted that Plaintiff Golden Carriers, LLC is an Alabama company principally located in Troy, Alabama. 23. it is admitted that Plaintiff Glazier Trucking, Inc. is an -Oklahoma corporation piincipally located in Keifer, Oklahoma. 24. It is admitted that Defendant Pilot Corporation is a Tennessee corporation with its principal place of business located at 5508 Lonas Drive, Knoxville, Tennessee. 25. It is admitted that Defendant Pilot Travel Centers LLC is a Delaware corporation with its principal place of business located at 5508 Lonas Drive, Knoxville, Tennessee. 26. The allegations contained in paragraph 26 of the Complaint are denied. 27. it is admitted that Venue is proper in this Court as Defendants' principal offices lie within Knox County, Tennessee. 28. The allegations contained in paragraph 28 of the Complaint are denied._ 29. The allegations contained in paragraph 29 of the Complaint are denied. 30. The allegations contained in paragraph 30 of the Complaint are denied. 31. The allegations contained in paragraph 31 of the Complaint are denied. 32. 33. 34. 35. 36. 37. 38. .The allegaiions contained in paragraph 32 of the Complaint are denied. The allegations contained in paragraph 33 of the Complaint are denied. The allegations contained in paragraph 34 of die Complaint are denied. The allegations contained in paragraph 35 of the Complaint are denied. The allegations contained in paragraph 36 of the Complaint are denied. The allegations contained in paragraph 77 of the Complaint are denied. It is denied that Plaintiffs are entitled to seek certification of a class pursuant to Rule 23 of the Tennessee Rules of Civil Procedure. 39. . 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. The allegations contained in paragraph 39 of the Complaint are denied. The allegations contained in paragraph 40 of the Complaint are denied. The allegations contained in paragraph 41 of the Complaint are denied. COUNT I Conversion The allegations contained in paragraph 42 of the Complaint are denied. The allegations contained in paragraph 43 of the Complaint are denied. It is denied that these Plaintiffs are entitled to any discount or rebate funds. It is denied that these Plaintiffs are entitled to any discount or rebate funds. COUNT II Violation of Racketeer Influenced and Corrupt Organizations Act. 18 U.S.C. 1962(c) The allegations contained in paragraph 4-6 of the Complaint are denied. The allegations contained in paragraph 47 of the Complaint are denied. The allegations contained in paragraph 48 of the Complaint are denied. The allegations contained in paragraph 49 of the Complaint are denied. The allegations contained in paragraph 50 of the Complaint are denied. The allegations contained in paragraph 51 of the Complaint are denied. 5 52. 53 54. 55. 56. 57. 58. 59. The allegations contained in paragraph 52 of the Complaint are denied. The allegations contained in paragraph 53 of the Complaint are denied. The allegations contained in paragraph 54 of the Complaint are denied. The allegations contained in paragraph 55 of the Complaint are denied. The allegations contained in paragraph 56 of the Complaint are denied. The allegations contained in paragraph 57 of the Complaint are denied. COUNT Breach of Contract The allegations contained in paragraph 58 of the Complaint are denied. The Plaintiffs have not attached any contract or agreement they contend constitutes Valid and legally binding contracts supported by adequate consideration and, therefore, the allegations contained in paragraph 59 of the Complaint same must be denied. 60. 61. 62. 63. 64-. 65. 66. denied. 67. The allegations contained in paragraph 60 of the Complaint are denied. The allegations contained in paragraph 61 of the Complaint are denied. The allegations contained in paragraph 62 of the Complaint are denied. COUNT IV Punitive Damages The allegations contained in paragraph 63 of the Complaint are denied. The allegations contained in paragraph 64 of the Complaint are denied. The allegations contained in paragraph 65 of the Complaint are denied. All other allegations of the Complaint not heretofore denied are hereby The Complaint fails to state a cause of action for punitive or exemplary damages upon which relief can be granted as to Defendants. The imposition of punitive or exemplary damages against the Defendants, under the circumstances given rise to the present action, 6 would violate the Constitution of the state of Tennessee and the Constitution of the United States of America. Claims of the Plaintiffs for punitive or exemplary damages are in contradiction of the iights of the Defendants based upon the following Constitutional provisions: Lack of sufficient standards governing Whether to award punitive or exemplary damages and the amount of such punitive or exemplary damages in Tennessee is violaiive of the due process clause of the Fourteenth Amendment of the Constitution of the United States and Article 1, Section 8 of the Constitution of Tennessee of 1870. Alternatively, the amount of any award of potential damages is linrited by the due process clause of the Fourteenth Arnendrnent of the Constitution of the United States. b. An award of punitive or exemplary damages violates the Defendants' fights under the contract clause of Article 1, Section 10 of the Constitution of the United States. c. The supremacy clause of Article VI of the United States Constitution. d. The due process clause of the and XIV Ainendtnents of the United States Constitution. e. The Amendment of the United States Constitution. f. The excess fines clause of the Amendment of the United States Constitution. g. The equal protection clause of the Ainendment of the United States Constitution. h. The Constitution of the state of Tennessee. Because of the lack of clear standards, the imposition of or exemplary damages against these Defendants would be unconstitutionally vague and/or broad. No actions or omissions on behalf of the Defendants against these Plaintiffs were intentional, fraudulent, malicious or reckless. Such conduct must be shown by clear and convincing evidence and further, proof beyond a reasonable doubt burden of proof standard should be applied. Defendants hereby demand a bifurcated tnal as to the issue of punitive or exemphiry damages as alleged against them under the authonty ofH0dges S. C. Toof?r 833 896 (Term. 1992). 68. All other allegations of the complaint not heretofore denied are hereby denied. - AFFIRMATIVE DEFENSES 69. For affinnatiye and other defense, the Defendants herewith state as follows: a. Defendants plead that Plaintiffs' claims against Defendants are batted, in whole or in part, by the docttines of waiver, estoppel and laches. b. Defendants plead that Plaintiffs' claims against Defendants are barred, in whole or in part, by the statute of limitations. c. Plaintiffs' claims against Defendants are bailed, in whole or in part, by the lack of adequate consideration. d. Defendants plead that Plaintiffs' claims against Defendants are barred, in whole or in part, by Plaintiffs' failure to mitigate its damages. e. Defendants plead that Plaintiffs' claims against Defendants are batted, in whole or in part, by Plaintiffs' own acts, omissions or negligence. f. Defendants plead that any conduct of Defendants' employees descnbed in the Complaint was not within the course and scope of the employment with Defendants. e. Defendants plead that Plaintiffs' claims are baned, in whole or in part, by the Statute of Frauds. f. Defendants plead that Plaintiffs' claims are barred, in whole or in part, by the affirmative defense of payment. g. Defendants plead that Plaintiffs' claims are barred in whole or in part, by the affirmative defense of consent and/ or ratification. h. Defendants. plead, in the alternative, that Plaintiffs' claims are barred, in whole or in part, by the affirmative defense of accord and satisfaction. i. Defendants plead, in the alternative, that Plaintiffs' claims are barred, in whole or in part, the affirmative defense of novation. 70. Defendants reserve the right to withdraw any of the foregoing and/ or raise additional\ defenses as may be required and may become know duiing the discovery and/ or investigation of this action. 71. Defendants deny that the Plaintiffs are proper class representatives in that Plaintiffs are not owed sums of money in either rebate and/ or discounts. Plaintiffs have suffered no compensable damage or injury. Specifically, as to each entity: - a. Atlantic was never, during the time periods alleged in the Complaint, a participant in the rebate, discount or credit agreements with Pilot (the "Rebate Program") and, thus, no moneys were due to Atlantic under any Rebate Program. b. Glazier was a customer of Pilot and a participant in the rebate, discount or credit agreements with Pilot (the "Rebate Program"), but as of April 2013, Glazier was not owed any moneys under any Rebate Program. Specifically, as of April '15, 2013, Glazier owes to Pilot $64.19 for over payment under the Rebate Program. c. Golden was a customer of Pilot and a participant in the Rebate Program, but Pilot does not oxve to Golden any rebate funds under the Rebate Program. In fact, Pilot overpaid Golden in the amount of $1,465.97 in rebate funds. This amount has not been refunded by Golden to Pilot. d. Blachowske was a customer of Pilot and a participant in the Rebate Program, but as of April 15, 2013, Pilot does not owe Blachowske any money under any Rebate Program. 72. Defendants deny that this matter should be certified as a class action in that there is a class action settlement currently pending, which Will, if given final approval, moot all or some of the issues concerning the proposed class treatment of the claims asserted in this matter.' WHEREFORE, having fully answered, Defendants, Pilot Corporation and Pilot Travel Centers, LLC, pray that the Complaint against it be dismissed with the costs taxed to the Plaintiffs'. Respectfully submitted, Hodges, Doughty 8: Carson, PLLC Albert Attorney for Defendant 617 W7. Main Street Knoxville, Tennessee 37902 (865) 292-2307 10 CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of the foregoing has been served upon the following: Drew McE1roy, Esq. The Law Office of Drew McE1toy 1348 Dowefl Spijngs Boulevard Knoxville, Tennessee 37909 Mark A. Tate, Esq. Tate Law Group, LLC 2 East Bryan Street, Suite 600 Savannah, Georgia 31401 Robert Bartley Turner, Esq. Savage, Turner, Pinclmey 8.: Madison 304 East Bay Street Savannah, Georgia 31412 by hand delivery or by placing a copy in the United States mail, addressed to counsel, with sufficient postage thereon to carry the same to its destination. This the 30"' day of August 2013. Hodges, ghty Carson, PLLC By: Harb 11