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GE Capital Franchise Finance Corp. v. Cosentino

June 22, 2009

GE CAPITAL FRANCHISE FINANCE CORP., PLAINTIFF,
v.
JAMES A. COSENTINO, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiff GE Capital Franchise Finance Corporation commenced this action by filing a Complaint in this Court against Defendant James A. Cosentino, seeking to collect outstanding payments allegedly owed on a series of loan agreements. Presently before this Court is Defendant's Motion to Dismiss, or alternatively, to Transfer to the United States District Court for the Southern District of Florida, and Plaintiff's Cross-Motion for an Order of Attachment. For the reasons discussed below, Defendant's Motion is granted to the extent it seeks transfer and is denied as moot to the extent it seeks dismissal. Plaintiff's cross-motion is denied as moot.

II. BACKGROUND

A. Facts

Defendant James A. Cosentino is the majority or soleowner of numerous entities that include in their names the terms, "CCI" or "Dynamic Pizza" (hereinafter "Cosentino Entities" or "Entities"). (Docket No. 1, Compl., ¶ 5.) Beginning on or about June 30, 1998, seven Cosentino Entities obtained a series of loans from Plaintiff, its predecessors-in- interest, and affiliates (hereinafter "Plaintiff"). (Compl., ¶¶ 6, 9, 13, 17, 21, 27.*fn1 ) The seven Entities that obtained the loans include: (1) CCI of Boca Raton, Inc.; (2) CCI of Melbourne, Inc.; (3) CCI of Jensen Beach, Inc.; (4) Dynamic Pizza, Inc.; (5) Dynamic Pizza of Albany, Inc.; (6) Dynamic Pizza of Albany II, Inc.; and (7) Dynamic Pizza of Binghamton, Inc. (Compl., ¶¶ 9-21.*fn2

Cosentino executed six promissory notes on behalf of the seven Entities in connection with the loans, which, inter alia, set forth the specific terms of re-payment. (Docket No. 23, Exs. 3-8.) A New York-licensed notary public notarized each promissory note. (Id.) Three of the promissory notes, which together involved loans to the Dynamic Pizza Entities, were executed in Buffalo, New York. (Docket No. 23, Horn Aff., ¶¶ 13-15; Docket No. 23, Exs. 6-8.) Cosentino personally guaranteed all seven Entities' financial obligations under the promissory notes. (Compl., ¶ 7; Docket No. 1, Exs. A-F.) In each Guaranty, Cosentino lists his address as 4225 Genesee Street, Buffalo, New York, 14225 (Docket No. 1, Exs. A-F), and three Guaranties were executed in Buffalo, New York. (Id., Exs. D-F.)

Each Guaranty contains the same forum-selection clause, which states: Governing Law. This Guaranty and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of the State of Florida. Guarantor and Lender agree that any dispute arising out of this Guaranty shall be subject to the jurisdiction of both the state and federal courts in Florida. For that purpose, Guarantor hereby submits to the jurisdiction of the state and federal courts of Florida. Guarantor further agrees to accept service of process out of any of the aforesaid courts in any such dispute by registered or certified mail addressed to Guarantor. Nothing herein contained, however, shall prevent Lender from bringing any action or exercising any rights against (i) Borrower, (ii) any security, (iii) Guarantor personally, or (iv) the assets of Guarantor, within any other state or jurisdiction. (Docket No. 1, Ex. A, ¶ 14(d); Ex. B, ¶ 14(d); Ex. C, ¶ 15(d); Ex. D, ¶ 15(iv); Ex. E, ¶ 15(iv); Ex. F, ¶ 15(iv)).

After the promissory notes and personal guaranties were executed, nineteen entities controlled by Defendant filed for chapter 11 bankruptcy relief in the United States Bankruptcy Court for the Southern District of Florida, West Palm Beach Division. (Docket No. 14, Ex. B.) Three are connected to this suit: (1) CCI of Boca Raton, Inc.; (2) CCI of Melbourne, Inc.; and (3) CCI of Jensen Beach, Inc. (Id.) On December 18, 2007, Plaintiff filed proofs of claim in the bankruptcy proceedings for the amounts at issue here. (Docket No. 14, Ex. B, pts 1-4.)

The four New York based Dynamic Pizza Entities are not parties to the Florida bankruptcy proceedings, and Plaintiff filed a separate Complaint in this Court, against these Entities. See GE Capital Franchise Finance Corp. v. Dynamic Pizza, Inc. et al., 1:08-CV-200. Defendants did not answer or otherwise respond to that Complaint, and on August 22, 2008, this Court granted Default Judgment in favor of Plaintiff, and closed the case. See GE Capital, 1:08-CV-200, Docket No. 16.

Presently, Defendant is at least 68 years old. (Docket No. 13, Cosentino Aff., ¶13.*fn3

He lives in Delray Beach, Florida, and has lived there full-time since October 2006. (Id. at ¶ 5.) On his 2006 federal income tax return, Defendant listed his Florida residence, and has stated an intent to list the same address on his 2007 tax return. (Id. at ¶ 9.) Defendant's personal physician is located in Florida, Defendant is registered to vote in Palm Beach County, Florida, he holds a Florida driver's license, his automobile is registered in Florida, and, according to Defendant, his cardiologist recommends that he limit his travel outside Florida because of a heart condition. (Id. at ¶¶ 7, 10-13.) Defendant stated that he devotes 60 to 70 percent of his time to the Florida bankruptcy proceedings. (Id. at ¶ 17.)

B. The Parties' Motions

Defendant moves to dismiss Plaintiff's Complaint on the grounds that: (1) this Court lacks personal jurisdiction over Defendant; (2) Plaintiff insufficiently served process*fn4 ; and/or (3) venue is improper. (Docket No. 12.) Alternatively, Defendant seeks an order transferring this case to the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). (Id.) Plaintiff cross-moves for an order of attachment on Defendant's property located at 190 Deer Run, Williamsville, New York, but only if this Court first decides that Defendant is not a domiciliary of New York State. (Docket No. 22.*fn5 ) This Court first addresses Defendant's Motion to Transfer.

III. DISCUSSION

A. Defendant's Motion to ...


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