Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Diane Mann, as Trustee for the Estate of LeapSource, Inc., et al., Plaintiffs, Vs. GTCR Golder Rauner, L.L.C., a Delaware limited liability company, et al., Defendants.

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No. CIV 02-2099-PHX RCB O R D E R

On February 22, 2006, Defendant Michael Makings ("Makings") moved for summary judgment on the joint venture-related claims in this matter, specifically Counts 12 and 14. Mot. (doc. 323).

Additionally, within that same motion, Makings joined in GTCR's and Kirkland & Ellis' motions on the same joint venture-related claims. Id. Thereafter, on March 28, 2006, the Court issued an order granting GTCR's motion for summary judgment on the joint venture related claims, including Counts 12 and 14. Order (doc. 356). In

Case 2:02-cv-02099-RCB

Document 386

Filed 05/09/2006

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its order, the Court concluded that no joint venture existed between the Individual Plaintiffs and GTCR. Id. at 31. Thus, in

their response to Makings' motion for summary judgment on the same issues, Plaintiffs assert that, in light of the Court's prior ruling, the Makings' motion is now moot. Resp. (doc. 364) at 2.

Plaintiffs offer no argument or evidence in opposition to Makings' motion for summary judgment. Id. On April 27, 2006, Makings filed

a reply in opposition to Plaintiffs' determination regarding his motion. Reply (doc. 376).

Under Rule 56(e) of the Federal Rules of Civil Procedure, a non-moving party must respond to a properly supported motion for summary judgment by setting forth "specific facts showing that there is a genuine issue for trial." "If the adverse party does

not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Id. Furthermore, Local Rule 7.2(i)

provides that, "if the opposing party does not serve and file the required answering memoranda . . . such non-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily." The Ninth Circuit See Henry v.

requires that such motions be facially meritorious. Gill Indus., 983 F.2d 943, 950 (9th Cir. 1993).

On March 28, 2006, the Court granted GTCR's motion for summary judgment, which both Kirkland & Ellis ("K&E") and Makings joined. Joinder (doc. 242); Mot. (doc. 323). In its order, the Court found

that no joint venture existed between the Individual Plaintiffs and GTCR. Order (doc. 356) at 31. Makings may rely on this

determination.

Thus, Makings shall receive the same treatment as

GTCR and K&E, making inappropriate a denial of his motion as moot. -2Document 386 Filed 05/09/2006

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Therefore, IT IS ORDERED that Defendant Makings' Motion for Summary Judgment on the Joint Venture Related Claims (doc. 323) is GRANTED. DATED this 9th day of May, 2006.

Copies to counsel of record.

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-3Document 386 Filed 05/09/2006

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