UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

COBALT HOLDINGS, LLC, 

Plaintiff, 

 v. 

BREAK RUBBER TECHNOLOGIES, 

LLC, 

Defendant. 

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Case No. 3:13-CV-921 JD 

OPINION AND ORDER 

Plaintiff Cobalt Holdings, LLC (“Cobalt”), has brought suit against defendant Break 

Rubber Technologies, LLC (“Break Rubber”), alleging that Break Rubber failed to refund down 

payments paid by Cobalt on a contract that was later mutually cancelled. The Court has subject 

matter jurisdiction under 28 U.S.C. § 1332. Now before the Court is Cobalt’s Motion for 

Summary Judgment. [DE 13.] Break Rubber has not responded to the motion and the time to do 

so has passed; Cobalt represents that Break Rubber “has indicated that it cannot stipulate to the 

entry of a Judgment but would not oppose a Motion for Summary Judgment.” [DE 13 at 2.] For 

the reasons stated below, Cobalt’s Motion for Summary Judgment is GRANTED. [DE 13.] 

I. Factual Background 

The facts in this case are almost entirely admitted by Break Rubber in its answer to 

Cobalt’s complaint.1

 In November 2009, Break Rubber contracted to manufacture and sell a mill 

to Cobalt for $287,000. Cobalt made two down payments for the mill, totaling $258,300. The 

 

1

 Break Rubber does deny in its answer that “Break Rubber and/or its principal owner, David Futa, utilized the 

balance of the deposited funds for other business or personal purposes.” [DE 6 at 3.] However, that issue is not a 

material fact in resolving this motion for summary judgment. 
2 

contract was mutually cancelled and Break Rubber agreed to refund to Cobalt the down 

payments that Cobalt had already paid. 

Break Rubber provided a refund of $100,000, and $26,650 of later work performed by 

Break Rubber for Cobalt was credited against the amount owed. The parties agree that Break 

Rubber continues to owe Cobalt $131,650. In its answer, Break Rubber states that it has not 

made the payment “because it has dissolved and [is] in a state of insolvency.” [DE 6 at 4.] 

II. Discussion 

On summary judgment, the burden is on the moving party to demonstrate that there “is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). That means that the Court must construe all facts in the light most 

favorable to the nonmoving party, making every legitimate inference and resolving every doubt 

in its favor. Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 503–04 (7th Cir. 2014). A “genuine 

issue” exists with respect to any such material fact, and summary judgment is therefore 

inappropriate, when “the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.” Id. On the other hand, where a factual record taken as a whole could not 

lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of 

Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). 

Here, Cobalt alleges that Break Rubber owes it $131,650 based on an agreement between 

the parties to refund down payments on a contract that was later mutually cancelled. Break 

Rubber agrees that it owes that amount of money. Thus, there is no genuine dispute as to any 

material fact and Cobalt is entitled to summary judgment if the facts establish that it is entitled to 

judgment as a matter of law. 
3 

 Break Rubber’s only alleged defense is that it has been dissolved and is insolvent. 

However, Indiana law allows for claims to be enforced against dissolved limited liability 

companies. Ind. Code. § 23-18-9-8. Accordingly, the Court cannot locate any legal basis for 

Break Rubber to avoid its admitted liability to Cobalt. 

IV. Conclusion 

For the reasons stated above, Cobalt’s Motion for Summary Judgment is GRANTED. 

[DE 13.] The Clerk is DIRECTED to enter judgment in favor of Cobalt Holdings, LLC, in the 

amount of $131,650.00. 

 SO ORDERED. 

 ENTERED: October 8, 2014 

 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court