AXA Investment Managers UK Ltd. v. Endeavor Capital Management LLC

890 F. Supp. 2d 373, 2012 WL 3765052, 2012 U.S. Dist. LEXIS 124459
CourtDistrict Court, S.D. New York
DecidedAugust 24, 2012
DocketNo. 11 Civ. 3221(PGG)(MHD)
StatusPublished
Cited by14 cases

This text of 890 F. Supp. 2d 373 (AXA Investment Managers UK Ltd. v. Endeavor Capital Management LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AXA Investment Managers UK Ltd. v. Endeavor Capital Management LLC, 890 F. Supp. 2d 373, 2012 WL 3765052, 2012 U.S. Dist. LEXIS 124459 (S.D.N.Y. 2012).

Opinion

MEMORANDUM & ORDER

MICHAEL H. DOLINGER, United States Magistrate Judge.

Plaintiff AXA Investment Managers UK Ltd. (“AXA”) has moved for summary judgment against defendants Endeavor Capital Management LLC (“Endeavor”) and Anthony F. Buffa (“Buffa”), the managing general partner of Endeavor, on a breach-of-contract claim. While Endeavor concedes that it breached the put-option agreements1 into which it had entered with plaintiff, defendant Buffa asserts that his personal guaranty of these agreements is void for want of consideration. In addition, both defendants argue that the twenty-five-percent interest rate imposed by the liquidated-damages provisions in these agreements is an unenforceable penalty. We find neither of defendants’ arguments persuasive and therefore grant summary judgment in favor of plaintiff.2

BACKGROUND

On May 12, 2009, plaintiff and defendants entered into two put-option agreements 3 in which two “AXA-related companies” acquired from Endeavor shares of stock in Clean Air Power, Ltd. (“CAP”), on the condition that Endeavor agree to repurchase the shares should AXA elect to exercise its option. (See Decl. of Ronald B. Weisenberg in Opp’n to Mot. for Summ. J. or in the Alternative, Mot. for Default (“Weisenberg Decl.”) Exs. A & B (“May 2009 Agreements”) at 14). In these agree[377]*377ments, a clause entitled “Miscellaneous” states in part that “Anthony F. Buffa in addition to being a party to this agreement, is also personally guaranteeing that Endeavor will honor and perform in the full payment of the Put if exercised by the Optionee, and will honor all rights of the Optionee under this agreement.” (May 2009 Agreements ¶ 5). On July 29, 2010, plaintiff formally notified defendants of its intention to exercise its options under these agreements. (Weisenberg Decl. Ex. C). Defendants concede that they did not purchase the stock and that “Endeavor was unable to satisfy its obligations under the May 2009 Agreements.” (Weisenberg Decl. ¶ 4; see also Defs.’ Stmt, of Undisputed Material Facts (“Defs.’ R. 56.1 Stmt.”) ¶ 15).5

After lengthy negotiations (see Compl. ¶ 12), plaintiff and defendants entered into a second set of agreements on December 21, 2010. (Weisenberg Decl. Exs. D & E (“Dec. 2010 Agreements”) at 1). Both of the 2010 agreements are entitled: “Amended and Restated Put Option Agreement and Personal Guaranty.” (Id.). As presaged by the title, these second agreements each contain a provision designated as the “Personal Guaranty by Buffa” (id. ¶ 3), and independent signature lines marked: “On the Personal Guaranty,” signed “Anthony F. Buffa.” (Id. at 5). These agreements set January 31, 2011, as the deadline for plaintiff to exercise its option. (Id. ¶ 1).

On February 9, 2011, the parties extended their agreements and set a new exercise-by date for the put of July 31, 2011. (Tubbs Decl. Exs. A & B (“Feb. 2011 Agreements”) at 1). These agreements again included a discrete provision labeled “Personal Guaranty by Buffa.” (Id. ¶ 4). They also incorporated a damages provision according to which, upon default by defendants, a twenty-five percent rate of interest would be imposed upon the option price of any stock that AXA did not sell prior to exercising the option. (Id. ¶ 10(b)). This interest rate would super-cede the ten percent rate imposed from August 1, 2010, as a consequence of defendants’ prior default, and would run from the point of the default under the February 2011 Agreements until defendants paid the full amount that they owed plaintiff. (Id. ¶¶ 1,10).

In two missives dated February 25, 2011, AXA provided defendants notice that it had elected to exercise the options. (Weisenberg Decl. Ex. H, at 1, 3; see also Tubbs Decl. ¶ 14). Endeavor was to pay by March 7, 2011, but the parties agreed to extend that deadline to March 14, 2011. (See Tubbs Decl. ¶ 14). By defendants’ own admission, “Endeavor was unable to purchase the CAP stock at the agreed upon price.” (Defs.’ R. 56.1. Stmt. ¶20; Opp’n Mem. at 3). Defendants admit that Endeavor defaulted under the February 2011 Agreements and that they have, to date, made no payments to AXA, but they deny that Buffa has any personal contractual obligation to plaintiff. (Defs.’ R. 56.1 Stmt. ¶¶ 7-8, 12). By letters dated March 30, 2011, AXA gave Endeavor and Buffa timely written notice of their defaults. (Id. ¶ 10). Plaintiff commenced the present action in response to these defaults, filing a complaint on May 12, 2011.

Subsequent to filing, plaintiff and defendants entered into a period of informal discovery. (Pl.’s Mem. of Law in Supp. of Mot. for Summ. J. and/or Default J. (“Pl.’s [378]*378Mem.”) at 4; Opp’n Mem. at 3). When this process proved fruitless for contested reasons (see Pl.’s Mem. at 4; Opp’n Mem. at 3), plaintiff sent defendants a letter dated November 2, 2011, requesting formal discovery under Rule 26 of the Federal Rules of Civil Procedure. (Decl. of Donald F. Luke in Support of PL’s Mot. for Summ. and/or Default J. (“Luke Decl.”) Ex. J). The parties agree that formal discovery was not completed, but defendants assert that plaintiff was not prejudiced because it had “the relevant information and documents”. (Opp’n Mem. at 8).

Plaintiff filed a motion for summary judgment on April 5, 2012. In the alternative, it seeks a default judgment for discovery derelictions.

In support of its Rule 56 motion, plaintiff notes that the damages sought have been reduced “through its sale, in March 2012, of the CAP stock that Endeavor was required to purchase.” (PL’s Mem. at 31). Having thus mitigated its damages, plaintiff seeks to collect both the difference in price between what it ultimately received for the shares and what defendants had contracted to pay for them and the default interest due under the damages provisions in the Agreements. (Tubbs Decl. ¶ 9). Defendants agree that plaintiff is entitled to the difference between the contracted-for price and the price actually received for the shares. (Opp’n Mem. at 5, 7). They contend, however, that a judgment to that effect would be enforceable only with respect to Endeavor because the alleged guaranty is not binding upon Buffa and that that judgment should not include the twenty-five percent default interest, which they argue constitutes a penalty. (Id. at 5-7).

JURISDICTION, VENUE AND CONSENT TO APPEAR

“Diversity jurisdiction exists over ‘civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States.’ ” Hallingby v. Hallingby, 574 F.3d 51, 56 (2d Cir.2009) (quoting 28 U.S.C. § 1332(a)(1)). To satisfy the “citizens of different States” requirement, each plaintiffs citizenship must be different from each defendant’s citizenship, resulting in complete diversity. Id.

Here, plaintiff is “a corporation organized and existing under the laws of the United Kingdom, having its principal place of business in London, England” (Compl.

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890 F. Supp. 2d 373, 2012 WL 3765052, 2012 U.S. Dist. LEXIS 124459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/axa-investment-managers-uk-ltd-v-endeavor-capital-management-llc-nysd-2012.