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LONE STAR INDUS. v. NELSTAD MATERIAL CORP.

January 25, 1993

LONE STAR INDUSTRIES, INC., Plaintiff,
v.
NELSTAD MATERIAL CORP. and JAMES CAPOSSELA, Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Lone Star Industries, Inc. ("Lone Star"), a supplier of stone to, and now a creditor of, Nelstad Material Corp. ("Nelstad") which is now in bankruptcy, seeks through this suit to enforce a personal guarantee of Nelstad's indebtedness to Lone Star, bearing the name of defendant James Capossela ("Capossela"), a principal of Nelstad. For the reasons which follow, I grant Lone Star's motion for summary judgment for the amount of Nelstad's debt of $ 580,111.40 together with prejudgment interest based on the rate provided for by contract.

 It is undisputed that Nelstad incurred the indebtedness involved, that Nelstad has not paid the debt, that Capossela was a principal of Nelstad who dealt with Lone Star in connection with Lone Star's extensions of credit to Nelstad, and that the guarantee attached to Lone Star's moving papers bears a signature which Capossela recognizes as resembling his signature. Capossela cannot recall, but does not deny, signing the guarantee.

 In opposition to Lone Star's motion, Capossela makes several arguments, none of which I find convincing.

 II

 Capossela points out that the guarantee was not attached to the complaint, but concedes that it is attached to the papers in support of Lone Star's motion for summary judgment and was shown to Capossela at his deposition. Capossela did not move to dismiss the complaint for insufficiency; moreover, notice pleading under the Fed.R.Civ.P. 8 permits allegations concerning governing documents even if not attached to the complaint. This is illustrated by Fed.R.Civ.P. Form 3, which sets forth an approved form of complaint on a promissory note that offers options of (a) attachment of the note, (b) quotation of it verbatim, or (c) an adequate description of the relevant portions of its contents.

 The approach taken by the Federal Rules in this respect is the only pragmatic one, since some contract and other commercial cases (although not the present one) concern extremely lengthy documents which if attached in full would make pleadings unwieldy in the extreme. Even if absence of the guarantee as an exhibit to the complaint were a deficiency, the pleadings can be conformed to the proof under Fed.R.Civ.P. 15(b) where, as here, there is no prejudice to the opposing party.

 III

 Capossela argues that his failure to recall signing the note creates an issue of fact barring summary judgment to Lone Star, which bears the burden of proof on this element of its claim. I find no genuine issue of material fact, since Capossela, who does not claim inability to recognize his own handwriting, concedes that the signature on the guarantee resembles his signature and does not deny having signed the document. The surrounding facts corroborate the reasonableness of the conclusion that the signature resembling Capossela's on the guarantee is in fact that of Capossela.

 It is undisputed that the document was found in the files of Lone Star, which had in fact been extending credit to Nelstad, of which Capossela was a principal and the representative in dealing with Lone Star. Under these circumstances it makes sense that Lone Star would have requested and Capossela granted a personal guarantee to protect Nelstad's supplier from the precise risk which became a reality here - the insolvency of Nelstad. In effect, the guarantee constitutes a waiver of the corporate veil - a demand often made by suppliers of closely held corporations and frequently agreed to by the principals of such corporations.

 Capossela's contention that the signature on the guarantee may not be his lacks substance and is incredible in light of conceded or undisputed facts and his own testimony. Summary judgment under Fed.R.Civ.P. 56 was intended to deal with precisely this kind of situation. See Citibank, NA v. Nyland, Ltd., 878 F.2d 620 (2d ...


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