Beasley et al v. AZZ incorporated

Filing 38

OPINION AND ORDER by Judge Terence Kern - Judgment is granted in favor of Defendant as to any claims asserted by C&D ; granting 19 Motion for Summary Judgment (vah, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
SCOTT BEASLEY, et al.,
Plaintiffs,
v.
AZZ, Inc. d/b/a AZZ Galvanizing,
Defendant.

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Case No. 15-CV-250-TCK-FHM

OPINION AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment on Plaintiff C&D
Investment Properties, LLC’s Claims Based on Lack of Capacity to Sue (Doc. 19). Plaintiff has
failed to respond, and the motion is therefore unopposed.
Even when a dispositive motion is unopposed, the Court remains obligated to determine if
the summary judgment motion is properly “supported” pursuant to Federal Rule of Civil Procedure
56(c). Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002). Summary judgment is appropriate
only if the moving party demonstrates that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56. “By failing to file a response
within the time specified by the local rule, the nonmoving party waives the right to respond or to
controvert the facts asserted in the summary judgment motion.” Reed, 213 F.3d at 1195. “The court
should accept as true all material facts asserted and properly supported in the summary judgment
motion.” Id. However, summary judgment should only be granted if those facts entitle the moving
party to judgment as a matter of law. Id.
Based on undisputed evidence, Defendant has shown that Plaintiff C&D Investment
Properties, LLC (“C&D”) failed to file an annual certificate with the State of Oklahoma, failed to
pay the annual certificate fee, and is no longer an active Oklahoma limited liability company. See

Okla. Stat. tit. 18, § 2055.2(D) (failing to file certificate and pay fee results in LLC ceasing to be
in good standing). As an LLC that has ceased to be in good standing, C&D lacks capacity to sue
under Oklahoma law. See Okla. Stat. tit. 18, § 2055.2(F). C&D therefore lacks capacity to sue
under Federal Rule of Civil Procedure 17(b)(3) (capacity to sue limited liability companies governed
by state law).
Defendant’s Motion for Summary Judgment on Plaintiff C&D Investment Properties, LLC’s
Claims Based on Lack of Capacity to Sue (Doc. 19) is GRANTED. Judgment is granted in favor
of Defendant as to any claims asserted by C&D.
IT IS SO ORDERED this 6th day of October, 2015.

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