Seipel

MEMORANDUM *

Appellant Olympic Coast Investment, Inc. (OCI) appeals the district court’s grant of summary judgment to Appellee Joseph Seipel (Seipel). The district court held that under Federal Rule of Civil Procedure 17(b), OCI lacks capacity to maintain a lawsuit as a trustee of an express business trust. The district court granted summary judgment without considering whether OCI has capacity to sue as a corporation or as assignee of its investors’ claims.

We review de novo the district court’s grant of summary judgment for lack of capacity under Rule 17(b). See Hillis Motors, Inc. v. Hawaii Auto. Dealers Ass’n, 997 F.2d 581, 584 (9th Cir.1993). Although we affirm the district court’s judgment that OCI lacks capacity to sue as a trustee of an express business trust, we remand to the district court to determine whether OCI may maintain a suit in its capacity either as a corporation or as an assignee of its investors’ claims, if at all.

I.

We affirm the district court’s conclusion that OCI lacks capacity under Rule 17(b) to sue as a trustee of an express business trust. It is fundamental that a suit brought in the name of that which is not a legal entity is a mere nullity.…