Einstein Cosmetics, Llc v. Cvs Caremark Corp.

MEMORANDUM

Einstein Cosmetics, LLC (“Einstein”) appeals the district court’s grant of summary judgment and terminating sanctions in favor of CVS Pharmacy, Inc. and CVS Caremark Corp. (collectively “CVS”). We affirm.

(1) Einstein first asserts that the district court erred when it determined that Einstein’s complaint must be dismissed because the person who purported to file and pursue the action had no authority to do so on Einstein’s behalf. We disagree. The evidence before the court made it plain that Einstein was an LLC so structured that sole “management [was] vested in only one manager,” a requirement that could not be changed absent an amendment to the articles of organization. The evidence showed that Shalant was not that manager, and had no authority to bring an action on behalf of Einstein. In short, he was not an agent of Einstein for that purpose. See S. Sacramento Drayage Co. v. Campbell Soup Co., 220 Cal.App.2d 851, 856 , 34 Cal.Rptr. 137, 139-40 (1963). On appeal it is suggested that this was a stockholder’s derivative action on behalf of Einstein. However, that issue was not raised before the district court and is waived. See Crawford v. Lungren, 96 F.3d 380 , 389…