The opinion of the court was delivered by: Stanton, District Judge.
National Union Fire Insurance Company of Pittsburgh, Pa.
("National Union"), an issuer of financial guarantee bonds,
sues to enforce indemnity agreements between itself and limited
partners in a tax shelter limited partnership, and to enforce
its rights as subrogee on the limited partners' promissory
notes which it honored on their behalf.
National Union had issued a bond which guaranteed, to the
limited partnership and to the bank which financed the limited
partnership, that the limited partners would make all of their
capital contributions represented by the promissory notes. When
the limited partners stopped making their required
contributions, National Union made them on their behalf. Now it
seeks reimbursement, under the indemnity agreements defendants
gave it at the time it guaranteed their payments, and as
subrogee on the notes on which they defaulted.
The defendant limited partners, Mario, Chris, and Stephen
Turtur move to transfer these actions to the United States
District Court for the Southern District of Texas under
28 U.S.C. § 1404(a). National Union moves to compel discovery.
The motion to transfer is granted. The motion to compel
discovery is denied without prejudice.
National Union, a Pennsylvania corporation, has its principal
place of business in New York City and does business in many
states, including Texas. The Turturs are residents of Texas.
In December 1982 the Turturs purchased limited partnership
interests in American National Associates 367 ("ANA"), a New
York limited partnership. ANA was one of several computer
equipment leasing limited partnerships organized by one Barry
Trupin. Rothschild Registry International Inc. ("Rothschild"),
an entity Trupin controlled, was ANA's general partner. The
purchase price for Mario Turtur's interest consisted of an
initial cash payment of $28,000 and promissory notes ("notes")
for $429,000. The purchase price for Chris and Stephen Turtur's
interest consisted of an initial cash payment of $9,600 and
notes for $143,000.
The notes were assigned to La Salle National Bank (the "Bank")
in return for loans of working capital which the Bank made to
ANA. To induce the Bank to make the loans and accept assignment
of the notes, the Turturs obtained National Union's guarantee
of payment of their notes.
In return, the Turturs executed indemnity agreements in which
they agreed to reimburse National Union for any payments it
made on their behalf. The indemnity agreements contain
permissive forum selection clauses:
The Turturs made the first two payments on their notes, but
failed to make the third payments which were due on March 15,
1985. National Union made those payments to the Bank on the
Turtur's behalf. In October 1985 National Union commenced
actions against Mario Turtur, No. 85 Civ. 8024, and Chris and
Stephen Turtur, No. 85 Civ. 8025 (the "'85 actions"), to
recover those amounts.
The Turturs did not make the fourth and fifth payments on their
notes, which were due on March 15, 1986 and 1987. National
Union again paid the Bank on their behalf. In May 1989 National
Union commenced actions against Mario Turtur, No. 89 Civ. 3427,
and Chris and Stephen Turtur, No. 89 Civ. 3428 (the "'89
actions"), to recover the amount it paid the Bank.
Both the '85 and '89 actions (collectively referred to as the
"New York actions") seek reimbursement under the terms of the
indemnity agreements, and by subrogation to ...