Industrial Supplies, LLC v. United States ( 2019 )

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itOb 5t,12ガ Court of∫ 2b2T,I CIュ im/
No.19-625C
(Filed:August 28,2019)
INDUSTRIAL SUPPLIES,LLC, *
*
Plainti■i *
* Pro Sc Plaintitt MOtiOn to Dismiss;RCFC
v. * 41(b);RCFC 83.1;Standing;Limitcd
* Liability Company;Tax Election
THE UNITED STATES, *
*
Dcfcndant, *
*************************************
Shirlev Brewer,Ostervillc,NIIA,pro sc.
Marttarct E.Shccr,United States Depa■ ment ofJustice,Washington,DC,for dcfendant.
OPIN10N AND ORDER
SWEENEY,Chicf Judge
This case ariscs out ofpro sc plaintiff lndustrial Supplics,LLC's(``Industrial'')cOmplaint
conccrning a govcrllmcnt grant, Rcpresentcd by its llllanaging FnembCr,Shirley Brcwcr,
Industrial allcgcs that thc govcrlllncnt impropcrly failed to award thc company a grant undcr
section 1603 ofthe American Rccovcry and Rcinvcstment Act(``ARRA''),Pub.L.No.Hl-5,
d市 .B.,123 Stat.H5,364(2009)(``Section 1603'').Defendant moves to dismiss the complaint
with praudice bccausc lndustriaHacks standing,docs not statc a claim on which rclicf may bc
grantcd,and fails to comply with thc Rulcs ofthc Unitcd Statcs Court ofFcdcral Clailns
(``RCFC'').As explained below,thc court grants in part and denics in part defendant's motion.
Spcciflcally,thc court dismisses the complaint without praudicc bccausc lndustrial has not
complicd with the court rulc that a limitcd liあ ility company(``LLC'')muSt be reprcscntcd by an
attorncy for proceedings in this coult.
I.BACKGROUND
Industrial was a Delaware LLC and was also registcrcd as a食 )rcign LLC in
Ⅳlassachusctts.l Thc company had one rnembcr,Ⅳ Is.Brewer. Industrial ccascd opcrations in
l The court dcrivcs thc facts in this scction from the complaint,thc parties'subrnissions
(inCluding attached cxhibits),and applicablc stttutes and regulations.陸 Rockv Mountain
Hclium、 LLC v.United Stttes,841F,3d1320,1325… 26(Fcd.Cir.2016).
2018. On April 79,2019, after the company allegedly ceased to exist, Industrial filed its
complaint in this court. In that complaint, Industrial is identified in the caption and cover sheet
as the plaintiff. Ms. Brewer, however, signed the complaint and represented that she was
proceeding pro se on behalf of the company. The gravamen of the complaint is that Industrial
did not receive a Section 1603 grant to which it was entitled after submitting an application to
the Secretary of the Treasury.2 Specifically, Industrial (l) alleges that it was a vendor to Ocean
Wave Energy ("OWE") for the Barge Windspire Project and (2) suggests that it submitted a
Section 1603 application for that project.3 The govemment never awarded Industrial a grant, and
Industrial asserts the government's failure to do so constitutes a breach of contract and a
violation of the Fifth Amendment to the United States Constitution.
On July 72,2019, defendant moved to dismiss Industrial's complaint pursuant to RCFC
12(bX1), RCFC 12(bX6), and RCFC 41(b). The motion is now fully briefed, and the court
deems oral argument unnecessary. Thus, defendant's motion is ripe for adjudication.
II. STANDARD OF REVIEW
In ruling on a motion to dismiss, the court "generally must accept as true all undisputed
facts asserted in the plaintiffls complaint and draw all reasonable inferences in favor of the
plaintiff." Trusted Inteeration. Inc. v. United States, 659 F.3d I 159, I 163 (Fed. Cir.2011). A
pro se plaintiff s complaint, "'however inartfully pleaded,' must be held to 'less stringent
standards than formal pleadings drafted by lawyers' . . . ." Hughes v. Rowe, 449 U.S. 5, 10 n.7
(1980) (quoting Haines v. Kerner, 404 U.S, 519,520-21 (1972)). However, "[t]he fact that [a
plaintiffl acted pro se in the drafting of his complaint may explain its ambiguities, but it does not
excuse its failures, if such there be." Henke v. United States, 60 F.3d 795,797 (Fed. Cir, 1995).
III. ANALYSIS
The threshold issue is the parties' dispute over Industrial's compliance with the court's
rules. Defendant argues that Industrial is violating RCFC 83.1(a)(3) because artificial entities
cannot maintain lawsuits in this court unless represented by an attorney, and Ms. Brewer-who
is representing Industrial-is not an attorney. Industrial counters that Ms. Brewer can represent
Industrial because the company is a sole proprietorship, which can proceed in this court without
an attorney. Relying on Treasury Regulation $ 30i .770I-3,Industrial also contends that it is not
2 The ARRA requires the Secretary of the Treasury to award a grant (i.e., cash payment)
in lieu of tax credits to clean-energy investors who satisfy certain conditions. See 123 Stat. at
364. Specifically, investors receive a grant after submitting to the Secretary of the Treasury an
application reflecting an investment in a qualifying energy property. Id.
3 Industrial alleges that it "submitted applications to Treasury" and'owas entitled to
receive a grant in the amount of thirty percent of its basis in the Barge Windspire Project."
Compl. fl1T36-37. But Industrial otherwise focuses on OWE's application. E.9., id. '1J5 (noting
that it attached OWE's application as an exhibit).
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a separate entity from Ms. Brewer because she is the sole owner of the company. Additionally,
Industrial asserts that Ms. Brewer is a plaintiff in this case.4
The court may, pursuant to RCFC 41(b), dismiss a complaint if the plaintiff fails to
comply with the applicable court rules. Of particular import in this case is RCFC 83.1, which
includes limitations on the practice of pro se litigants: "An individual who is not an attorney . . .
may not represent a corporation, entity, or any other person in proceedings before this court."
RCFC 83.1(aX3); accord Talasila, Inc. v. United States,240F.3d1064,1066 (Fed. Cir.2001)
("[A corporation] must be represented by counsel in order to pursue its claims against the United
States in the fUnited States] Court of Federal Claims."). Industrial runs afoul of that rule
because it is an entity (specifically, an LLC) that is represented in this matter by Ms. Brewer,
who is not an attorney. Industrial's protestations that the representation passes muster under
RCFC 83.1(aX3) are not persuasive. First, Industrial is not a sole proprietorship because, as
noted in the complaint, it is registered as a Delaware LLC. See Harner v. Westfield Ins. Co., No.
CV Nl8C-05-015 JRJ, 2018 WL 6721765, at *3 (Del. Super. Ct. Dec. 12,2018) ("[U]nder
Delaware law, an LLC is not a sole proprietorship."); see also Lattanzio v. COMTA,481 F.3d
137 , 140 (2d Cir, 2007) ("Unlike a sole proprietorship, a sole member limited liability company
is a distinct legal entity that is separate from its owner."). Second, Industrial's reliance on
Treasury Regulation $ 301.7701-3 is misplaced because it only concerns how single-member
LLCs may be taxed, which has no bearing on the limitations set forth in RCFC 83.1(a)(3). See
Balbach v. United States, 1 19 Fed. Cl. 681, 682-83 (201 5) (prohibiting the owner of an LLC
from representing the company); see also Lattanzio,481 F.3d at 140 (explaining that a LLC with
one member "may appear in federal court only through a licensed attorney"). In short, Industrial
has not complied with RCFC 83.1(a)(3) because it is not represented by an attorney.
Even if Industrial was in compliance with RCFC 83.1(a)(3), there is the issue of whether
Industrial and Ms. Brewer (assuming, without deciding, that she is a plaintiff) have standing to
pursue their claims, A plaintiff has standing if it demonstrates that it "has personally suffered
some actual or threatened injury as a result of the putative illegal conduct of the defendant."
Vallev Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.5. 464,
475-76 (1982); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (explaining that
"the plaintiff bears the burden" of establishing standing). For a claim based on the nonpayment
of a Section 1 603 grant, a plaintiff must (at the very least) establish that it submitted an
application for the grant. Vaeth v. United States, 110 Fed. CL.425,431 (2013). Here, defendant
argues that Industrial and Ms. Brewer never submitted a Section 1603 application, and that
contention is not challenged in Industrial's response brief nor contradicted by any record
evidence.s Simply stated, Industrial and Ms. Brewer fail to establish that they have standing
a "shirley Brewer, Industrial Supplies LLC" is listed as the plaintiff in the caption of
Industrial's response briei while the complaint caption only identifies "Industrial Supplies,
LLC" as the plaintiff.
s Indeed, Ms. Brewer submitted an exhibit that suggests that she is not an applicant. See
Pl.'s Resp. Ex. I ("Ms. Brewer has refused to provide detailed invoices to support the claimed
cost basis according to the applicant.").
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because they have not offered argument or evidence reflecting that they submitted the Section
1603 application that underlies their claims.6
In sum, Industrial has not complied with the court's rule regarding attorney
representation, and the company and Ms. Brewer have not established that they have standing to
Dursue their claims.
IV. CONCLUSION
For the reasons stated above, the court GRANTS IN PART and DENIES IN PART
defendant's motion to dismiss. Defendant requests that the court dismiss the complaint with
prejudice, but the court finds such drastic action is premature. Instead, the court DISMISSES
Industrial's complaint without prejudice pursuant to RCFC 41(b). No costs. The clerk is
directed to enter iudgment accordingly.
ITIS S0 0RDEⅢ ]D。
MARG
ChicfJ
6 Contrary to Industrial's contention, the third-party-beneficiary principle is not
applicable in the context of a claim based on a Section 1603 grant. A plaintiff has standing to
litigate a claim as a third-party beneficiary to a contract when there is a contract that reflects the
contracting parties' intention to directly benefit the plaintiff. Glass v. United States, 258 F.3d
1349,1354 (Fed. Cir. 2001). Industrial, however, has failed to allege the existence of a contract.
Section 1603 applications, which are the only purported contracts Industrial references, are
neither express nor implied contracts because the text and legislative history of Section 1603 do
not reflect that "that the government intended to enter into contracts with all persons and entities
that filed applications for reimbursement grants." ARRA Enerey Co. I v. United States, 97 Fed.
Cl.12,28 (2011); see also Nat'l R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry. Co.,
470 U.S. 451,465-66 (1985) (noting that statutes do not create contractual rights absent a clear
indication of intent). Even if there was such a contract, Industrial fails to explain why it or Ms.
Brewer are intended beneficiaries.
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