
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1573                        ZENAPHON R. DEMERIS d/b/a AKI'S GULF,                                Plaintiff - Appellee,                                          v.                               CUMBERLAND FARMS, INC.,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Boudin, Circuit Judge,                                        _____________                              and Lisi,* District Judge.                                         ______________                                _____________________               Paul D.  Sanson, with  whom Glenn  M. Cunningham,  Shipman &               _______________             ____________________   _________          Goodwin and Mark G. Howard were on brief for appellant.          _______     ______________               Steven E. Kramer, with whom Stanley A. Brooks  and Wellesley               ________________            _________________      _________          Law Associates were on brief for appellee.          ______________                                 ____________________                                   October 10, 1996                                 ____________________                                        ____________________          *  Of the District of Rhode Island, sitting by designation.                    Per  Curiam.   This is an  appeal by  Cumberland Farms,                    Per  Curiam                    ___________          Inc.  ("Cumberland") from  a  preliminary  injunction granted  to          Zenaphon R. Demeris, d/b/a Aki's Gulf ("Demeris") pursuant to the          Petroleum Marketing  Practices Act,  15 U.S.C.     2801, et  seq.                                                                   ________          (the "Act").                    Demeris was  a  franchisee  of  Cumberland  motor  fuel          products  and rented  one of  its gasoline  stations.   A dispute          arose regarding  the respective rights of  Demeris and Cumberland          when the  latter attempted to terminate  the franchise agreement.          Demeris  sought  and  was  granted a  preliminary  injunction  to          prevent Cumberland from effectuating the termination.  By its own          terms, the preliminary injunction dissolved as of August 1, 1996,          a  date  which coincided  with  the  termination  period  of  the          franchise agreement.                    Cumberland's  main claim  is  that  the District  Court          abused its discretion and committed errors of law when it granted          the preliminary injunction to  Demeris, due to Cumberland's clear          legal right  to terminate Demeris's  franchise under 15  U.S.C.            2802.  However, after  reviewing the briefs filed by  the parties          after oral arguments,  which indicated the present  status of the          franchise  agreement  and  briefed  the  issue  of  mootness,  we          conclude that Comberland's claim is moot.                    It is undisputed that as of August 1, 1996, Demeris had          vacated the  premises in question.   Furthermore, it  is Demeris'          stated position that "the franchise ceased operations on August 1          [consistent with] the  terms of the injunction and  [pursuant to]                                         -2-          the parties' April 4  [settlement/franchise] agreement."  It also          appears that  Demeris has  "decided not to  contest [Cumberland's          rejection of  the franchise  assignment proposed by  Demeris] and          has so informed [Cumberland]."                    It is well settled that a case is moot "when the issues          presented  are no longer 'live'."  United States Parole Comm'n v.                                             ___________________________          Geraghty,  445 U.S.  388, 395  (1980).   The requirement  that an          ________          actual case and  controversy exist  at the time  a federal  court          renders its decision  is a jurisdictional mandate  of Article III          of the Constitution, one that precludes the issuance of  advisory          or academic  opinions.  U.S. Const.  art. III,   2  et seq.; U.S.                                                              _______  ____          National Bank  of Oregon v.  Independent Ins. Agents  of America,          ________________________     ____________________________________          Inc., 508 U.S. 439, 446 (1993).  Although some limited exceptions          ____          exist to a literal enforcement of this rule, see, e.g., Newspaper                                                       ___  ____  _________          Guild  of Salem, Local 105  v. Ottaway Newspapers,  Inc., 79 F.3d          __________________________     _________________________          1273, 1277 (1st  Cir. 1996) (quoting  Weinstein v. Bradford,  423                                       _______  _________    ________          U.S. 147,  149 (1975)) the instant  case does not fit  any of the          narrow  confines of these  exceptions, Cumberland's  arguments to          the  contrary notwithstanding.    The preliminary  injunction has          expired, and  Demeris has accepted Cumberland's  rejection of his          proposed assignee:  simply put, the  issues raised  before us  no          longer exist.  See generally Wright, Miller & Cooper, 13A Federal                         _____________                              _______          Practice & Procedure   3533.2, at 231 (2d ed. 1984 & Supp. 1996).          ____________________          If there are other  issues pending between the parties,  they are          not properly before us on this appeal.                    In conclusion, because the preliminary injunction is no                                         -3-          longer in effect and the assignment of rights under the franchise          agreement  has been specifically waived by the only party who can          claim them, we  conclude that  the issues raised  by this  appeal          have  been  mooted.     Dismissal  of  the  appeal  is  therefore          warranted.                    So ordered.  No costs.                    __________   ________                                         -4-
