in the Guaranties themselves -- only in the Notes, the Security Agreements, and the Subscription Agreements.
On a motion to dismiss, the factual allegations of the complaint must be accepted as true, Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir. 1985), and the allegations in the complaint must be considered in the light most favorable to the moving party. Assuming, then, that as the moving defendants claim they have no contacts with New York sufficient to give New York courts jurisdiction over the Guaranties signed by them elsewhere, the sole question becomes whether the forum selection language in the Subscription Documents should be read into the Guaranties.
The Terms of the Guaranties Subject the Moving Defendants to the Jurisdiction of New York
The Guaranties state that the guarantor unconditionally guarantees "the full payment, performance and observation . . . of all agreements . . . of the Trust" executed in connection with the Notes, the Security Agreement, and the Subscription agreement. Since one of the investors' obligations under these agreement was their consent to New York jurisdiction, any Guarantor's unlimited assumption of any Investor's obligations assumes this consent as well.
Should the language of the Guaranty not explicitly bind the Guarantor to the Investor's promise to submit to New York jurisdiction, however, principles of contract interpretation apply. For each defendant, New York law states since the documents were executed together, they should be interpreted the same way. The forum-selection clause and the choice-of-law clause in the Notes apply New York contract law to the agreements, and, under the law of New York, "where two or more written instruments between the same parties concerning the same subject matter are contemporaneously executed, they will be read and interpreted together." Liamuiga Tours, Ltd. v. Travel Impressions, Ltd., 617 F. Supp. 920, 927 (E.D.N.Y. 1985). This is especially true when the guaranty refers to the contract whose performance is guaranteed. 63 N.Y. Jur. 2d, Guaranty and Suretyship, § 95 at 141-42 (1987).
The fact that the forum-selection clause is not present in the Guaranty does not mean that the Guaranty contradicts the other documents and does not raise a triable issue. Each of these Guaranties is a form document, whereas the Notes were specifically prepared for the partnership transaction in question. Under these circumstances, the specific terms supplied by the Notes control and clarify the more general provisions of the Guaranties. Teal v. Place, 85 A.D.2d 788, 445 N.Y.S. 2d 309, 311 (3d Dept. 1981).
Even if New York law does not control the Guaranty, this general rule, not surprisingly, is that guaranties and their underlying contracts must be read together in the states (Hawaii, California, and North Carolina) where, according to the moving defendants, all the documents were signed. See, e.g., U.S. Leasing Corp. v. Du Pont, 69 Cal. 2d 275, 444 P.2d 65, 70 Cal. Rptr. 393 (1968); Niederer v. Ferreira, 189 Cal. App. 3d 1485; 234 Cal. Rptr. 779 (2d Dist. 1987); State Sav. and Loan Assn. v. Corey, 53 Haw. 132, 488 P.2d 703 (1971), cert. denied, 406 U.S. 920, 32 L. Ed. 2d 119, 92 S. Ct. 1774 (1972); Craftique, Inc. v. Stevens & Co., 321 N.C. 564, 364 S.E.2d 129 (1988). Moreover, if the moving defendants filed their cases in federal court, these cases would only be transferred here pursuant to the multidistrict litigation statute, 28 U.S.C. § 1407 (1988).
Finally, the moving defendants argue that enforcing New York as the forum selected is not consistent with due process "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice" because he has minimal contact with the state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945) (citations omitted); Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 108, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987). Due process, however, turns on the foreseeability that "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1979). The forum-selection clauses combined with the notice that the place of payment of the Notes was New York city gave each moving defendant ample notice that his Guaranty of the Investor's partnership interest would subject him to litigation in New York.
By the terms of the agreement itself and by principles of contract interpretation common to both New York and the relevant state, the moving defendants must submit to the jurisdiction of the federal courts in the state of New York. "There can be nothing 'unreasonable and unjust' in enforcing such an agreement; what would be unreasonable and unjust would be to allow one . . . to disregard it." AVC Nederland B.V. v. Atrium Inv. Partnership, 740 F.2d 148, 156 (2d Cir. 1984) (H. Friendly, J.).
It is so ordered.
New York, N. Y.
December 2, 1992
ROBERT W. SWEET
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