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GREENE'S READY MIXED CONCRETE CO. v. FILLMORE PAC.

December 2, 1992

GREENE'S READY MIXED CONCRETE CO.; MILILANI GROUP, INC., SOTO PROVISION; WARREN D. GOLDMAN; THOMAS D. WITTKOPF; JAMES B. DLUGOS; MICHAEL & PAULA SOLTERO; PAUL V. BRADEN; H & H FARMS, INC.; WILLIAM H. THEM; PATRICIA W. VILES; BENJAMIN REALTY CO.; MUSIC CITY MARKETING, INC.; MICHAEL M. DEW; L.F. JENNINGS; L.F. JENNINGS, INC.; SCHMIDT'S WHOLESALE, INC.; HARSEY & ASSOCIATES, INC.; J & W SWINE CO., INC.; ROBERT G. OLANDER; TUF LABS, INC.; C.T. FOWLER, INC.; BAR-TAK IMPORTERS, INC.; SNOWHILL INVESTMENTS; DUARD I. & MARLENE MORRIS; McNAMARA PONTIAC, INC.; GARY J. & CAROLYN K. BREAM; THOMAS LIVING TRUST; and DURANE GAS COMPANY Plaintiffs,
v.
FILLMORE PACIFIC ASSOCIATES LIMITED PARTNERSHIP; IR GOLDEN GATE, INC.; KES NARBUTAS; ALAN H. WIENER; RICHARD H. ADER; IR PACIFIC RESIDENTIAL; INTEGRATED RESOURCES EQUITY CORPORATION; RESOURCES FUNDING CORPORATION; FILLMORE CENTER ASSOCIATES; DONALD H. TISHMAN; HOUSING ASSOCIATES, INCORPORATE; FILLMORE CENTER DEVELOPERS; HAI MANAGEMENT, INC.; AMERITRUST COMPANY NATIONAL ASSOCIATION; FIRST INTERSTATE BANK OF CALIFORNIA; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; SECURITY PACIFIC NATIONAL BANK and SIGNET BANK/VIRGINIA, Defendants. AMERITRUST COMPANY NATIONAL ASSOCIATION; FIRST INTERSTATE BANK OF CALIFORNIA; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; BANK OF AMERICA N.T. & S.A., as successor to SECURITY PACIFIC NATIONAL BANK; and SIGNET BANK/VIRGINIA, Third-Party Plaintiffs, v. REX S. KUWASAKI; JOHN RENNA; GARY C. SCHMIDT; EDWARD M. THOMAS; and EDWARD R. McHENRY, JR., Third-Party Defendants.


SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D. J.

Third-party defendants Rex S. Kuwasaki ("Kuwasaki"), John Renna ("Renna"), Edward M. Thomas ("Thomas") and Edward R. McHenry, Jr. ("McHenry"), (collectively, "moving defendants"), have moved to dismiss to dismiss the third-party complaints filed against them by certain named defendants in the underlying action pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. The named defendants in the underlying action (In re Integrated Resources, MDL No. 897) are Ameritrust Company National Association, First Interstate Bank of California, Morgan Guaranty Trust Company of New York, Security Pacific National Bank, and Signet Bank/Virginia (the "Banks"). For the reasons given below, the motion is denied

 The Facts

 The facts are assumed as set forth in the pleadings and complaint. The moving defendants have been named in the third-party complaint brought by the Banks against investors who purchased partnership interests in limited partnerships offered by Integrated Resources and others. These interests were offered upon payment of a cash deposit and by delivery of a promissory note payable to the Partnership. As part of a restructuring of the limited partnerships originally offered by Integrated, these promissory notes were assigned to Integrated's creditors, the third-party plaintiffs in this case.

 Each of the moving defendants, all of whom are noncitisens and nonresidents of New York, was solicited in 1987 or 1988 to invest in a Connecticut limited partnership, the Fillmore Pacific Associates Limited Partnership (the "Partnership"). After deciding to invest assets of either trusts or companies that they controlled, each of the moving defendants as trustee or president executed certain subscription documents, including investor notes (the "Notes") and Security Agreements. Each personally executed a guaranty (the "Guaranties") in his own name, assuring the payments due from the Trust under the terms of the Notes.

 Each Note bears a forum selection clause which designates New York as the forum state:

 Maker hereby agrees that any suit, action, or proceeding with respect to this Note, any amendments or replacements hereof, and any transactions relating hereto or thereto shall be brought only in the state courts of, or the federal courts in, the State of New York, and Maker hereby irrevocably consents and submits to the jurisdiction of such courts for the purpose of any such suit, action or proceeding.

 Maker hereby agrees that no other state or federal court may entertain any such suit, action or proceeding, and that the state courts of, and the federal courts in, the State of New York shall have exclusive jurisdiction. . .

 This Note . . . shall be governed by . . . the internal laws of the State of New York.

 Two other documents -- a Security Agreement (the "Security Agreements") and a subscription agreement (the "Subscription Agreements") contained similar clauses designating New York as the forum state. All the investment documents are governed by New York law, and the money to be paid under the Notes was due at a New York address specified in the Notes.

 The Guaranties themselves do not have a forum selection clause, but all read:

 The undersigned (the "Guarantor") hereby unconditionally guarantees the full payment, performance and observance of all obligations, agreements, representations, and warranties of the , (the "Investor"), under the Investor's Note, Security Agreement, Subscription Agreement and all other documents and agreement executed by the Investor in connection with its investment . . .

 This Guaranty is made as an inducement (i) to the Partnership to accept the Investor's Note, (ii) to Lender to accept the collateral represented by the Investor's note and . . . (iii) to the General Partner of the Partnership to accept the Investor as an investor in the Partnership. . . .

 Each guaranty has a separate Investor written in by hand, except for the guaranty signed by Thomas, which simply substitutes the word "Trust" for "Investor." The line for the name of the "Investor" was filled in with the names of the entities owned and run by the moving defendants (the "Investors"). Each defendant signed his Guaranty in his own name, and signed all the other documents save the Guaranty in his capacity as trustee or President: Kuwasaki signed, as President, for the investor Mililani Memorial Park & Mortuary, Inc. (now the Mililani Group, Inc.); Renna signed, as President, for the investor Soto Provisions, Inc.; McHenry signed, as President, for the ...


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