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ORIX CREDIT ALLIANCE v. MID-SOUTH MATERIALS CORP.

March 19, 1993

ORIX CREDIT ALLIANCE, INC., Plaintiff,
v.
MID-SOUTH MATERIALS CORPORATION, PAVEMENT PLANING, LTD., C&F CONTRACTING CO. INC., JOHN B. PITTMAN and MERRILL E. JOHNSTON, Defendants.



The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Defendants John B. Pittman ("Pittman") and Merril E. Johnston ("Johnston") have moved to dismiss the complaint of Orix Credit Alliance, Inc. ("Orix") *fn1" for lack of subject matter jurisdiction pursuant to Rule 12(b)(2), F.R. Civ. P., or in the alternative, to transfer this action from the Southern District of New York to the Northern District of Mississippi pursuant to 28 U.S.C. § 1404(a). For the reasons given below, this motion is hereby denied.

 Prior Proceedings

 In 1981 in the state of Mississippi, Pittman and Johnston became incorporators and minority stock holders of C & F Contracting Co., Inc. (C&F) together with W. G. Cook, Jr. ("Cook"), majority stock holder and President of C&F. In 1983, Cook formed another Mississippi construction company, Pavement Planing Ltd. ("PPL"), again enlisting Pittman and Johnston as minority interest holders. In 1984, Cook expanded into the business of running both a gravel pit in northern Mississippi and a washing plant for it, and created Mid-South Materials Corporation (Mid-South), currently a defendant in this action. As with C&F, Cook was President of Mid-South and majority shareholder, and Pittman and Johnston were minority stockholders.

 Mid-South was incorporated on July 16, 1984, by Cook, Pittman and Johnston. Part of the financing for Mid-South was secured through four separate notes executed in favor of Orix, which has previously extended credit to C&F. Orix secured its loan with security agreements and personal guaranties, and on September 26, 1984, Pittman and Johnston signed the originals of the Guaranty Agreements (the "Guaranties") at issue in this case. These identical guaranties provide that Pittman and Johnston are personally liable for "the payment of any and all debts of [Mid-South] of whatever nature . . . whether now or hereinafter existing or arising . . . ." (emphasis added). According to the Guaranties, each guarantor would appoint an agent for service of process in New York and would agree to the exercise of jurisdiction of New York courts under a forum-selection clause which states that "the undersigned does hereby agree to the venue and jurisdiction of any court in the State and County of New York regarding any matter arising hereunder." The agreement also states that "this instrument cannot be changed orally, shall be interpreted according to the laws of the State of New York, and shall" survive the death of the Guarantor.

 Cook received more credit from Orix for equipment for Mid-South in August, 1987, in exchange for a promissory note of $ 1.6 million. Orix took a security interest, labeled a mortgage by the parties, in the equipment. The company Mid-South itself executed a Guaranty (the "Cook Guaranty") of all the obligations then existing or thereafter personally incurred by its president, Cook. Cook executed two more Promissory Notes for Mid-South for equipment added to Orix's security agreement: the first for $ 248,760 (August 29, 1988), and the second for $ 400,054.78 (April 27, 1989). Cook also guaranteed all of the obligations of PPL to Orix on June 12, 1989, a guaranty which Orix now could enforce directly against Mid-South as a result of the Cook Guaranty. Despite the additional financing, however, business did not go well: Mid-South and PPL filed for protection under Chapter 11 of the United States Bankruptcy Code on November 3, 1989, and subsequently were liquidated under Chapter 7.

 Orix repossessed Mid-South's and PPL's equipment and sold all at a public auction on April 26, 1990. After the sale of Mid-South's equipment, Orix sued that company for a deficiency of $ 1,181.16, plus interest. After the sale of PPL's equipment, however, Orix brought suit in diversity in the Southern District of New York for a deficiency of $ 255,513.70 plus interest -- a sum guarantied by Cook, whose debts were guarantied by Mid-South, whose debts in turn were guarantied by Pittman and Johnston.

 As defenses in the underlying action, Pittman and Johnston allege that they were released from their guaranties and that the auction sale price of PPL's equipment was commercially unreasonable. They have moved for dismissal due to lack of subject-matter jurisdiction, or at least a transfer of this action to Mississippi under 28 U.S.C. § 1404(a).

 Discussion

 The contacts of Orix with this jurisdiction, the choice by the parties of New York law to govern the transaction, and the permissive forum-selection clauses unquestionably give this court both subject-matter jurisdiction and venue. The defendants' motion to transfer for "lack of venue" is really closer to an argument of "forum non conveniens": they essentially allege that the court should transfer this action because Mississippi would be a better forum for a variety of reasons than New York.

 Orix responds with two arguments: first, that the forum selection clause is binding; second, that even if it is not, the equally balanced convenience of the parties, the presumption in favor of the forum chosen by the plaintiff, and the public policy of New York all tilt in favor of ...


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