MEMORANDUM AND ORDER

WESLEY E. BROWN, Senior District Judge

This lawsuit concerns a Beechcraft Starship Model 2000A aircraft, serial number NC-35, that was purchased by defendant MI-KA Aviation, Inc., in October of 1998. Plaintiff Raytheon Aircraft Credit Corporation ("RACC") financed the purchase. MI-KA Aviation, acting through its then-president defendant Michael Eberle, executed a promissory note and security agreement in favor of RACC as part of the transaction. Eberle also signed a provision individually guaranteeing MI-KA's obligations under the note and security agreement. RACC's amended complaint alleges that MI-KA Aviation is in default on the note and that both of the aforementioned defendants are liable for the amount due under the note. The court previously granted RACC's motion for default judgment against defendant MI-KA Aviation. The matter now comes before the court on RACC's motion for summary judgment against defendant Michael Eberle, in which RACC argues that Eberle is liable for the debt by virtue of his personal guaranty. The court also has before it a motion to stay filed by defendant XL Specialty Insurance Company. The court orally ruled on the aforementioned motions after hearing arguments from the parties on May 5, 2003. This written memorandum will supplement the oral ruling of the court at the May 5th hearing.

I. Facts.

For purposes of RACC's Motion for Summary Judgment, the court finds the following facts are uncontroverted. Raytheon Aircraft Credit Corporation ("RACC") is a Kansas corporation with its principal place of business in Wichita, Kansas. It is a financing company primarily engaged in financing the acquisition of Raytheon-manufactured airplanes.

MI-KA Aviation, Inc., was a corporation owned by Michael Eberle and his wife, Kay Eberle. The initials MI-KA came from the use of the first names of Mr. and Mrs. Eberle. In 1998, MI-KA Aviation, Inc. purchased a Beechcraft Starship airplane, serial number NC-35. In connection with the purchase, a Promissory Note and Security Agreement were executed by Michael Eberle as president of MI-KA Aviation, Inc., to finance the purchase. The Promissory Note and Security Agreement are dated October 23, 1998.

As part of the transaction, Mr. Eberle signed a personal unconditional guaranty of the Promissory Note. The guaranty provides:

FOR VALUE RECEIVED, the undersigned, whether one or more, as primary obligor, hereby unconditionally guarantees prompt payment and performance of all obligations of Debtor under the terms of this Promissory Note and the Security Agreement and hereby waives diligence, presentment, demand, protest, notice of acceptance, or notice of any kind whatsoever, as well as impairment of collateral and any requirement that RACC or any assignee exercise or exhaust any right to take any action against Debtor or any other person or any collateral hereunder and hereby consents to any extension of time, renewal or any other modification thereof. The undersigned confirms and acknowledges to RACC that this guaranty is given as an inducement to the extension of credit by RACC to Debtor and that the undersigned will derive benefit from such extension of credit. The undersigned further confirms and acknowledges reading and fully understanding all of the terms and conditions of this Promissory Note and the Security Agreement.

At some point after the Promissory Note and Security Agreement were executed, Mr. Eberle and his wife sold their shares of stock in MI-KA Aviation, Inc. to Christian Esquino and Aircraft R Us.

Paragraph 5 of the Security Agreement executed by Mr. Eberle obligated the Debtor to keep the airplane insured at all times and to furnish proof to RACC that it had complied with the provisions of that paragraph.

The monthly payments on the Promissory Note became sporadic in 2000 and then stopped in 2001. The Promissory Note required monthly payments of $20,000 per month for the first 60 monthly payments. MI-KA Aviation, Inc. did not make each of the monthly payments of $20,000 and the Promissory Note is in default.

RACC filed this lawsuit on October 9, 2001. At the time, RACC understood that the person in possession of NC-35 might fly the airplane to a facility in San Antonio, Texas, owned by Raytheon Aircraft Services, Inc. ("RAS"). RAS operates an aircraft maintenance facility at that location. RACC instructed RAS to take possession of NC-35 if the airplane arrived for maintenance. RACC also obtained a Temporary Restraining Order from this Court to take possession of the airplane if it arrived at RAS. The airplane did not arrive at RAS' facility.

RACC then attempted to determine the location of NC-35. Correspondence was sent to MI-KA-KA Aviation, Inc. but was not answered. RACC authorized the hiring of a private investigator to determine NC-35's location. Eventually, RACC learned that NC-35 was in Mexico. The airplane had been seized by the Mexican customs authorities for alleged violations of Mexican customs law or regulations. RACC has not been able to recover the airplane from the Mexican government.

As of December 12, 2002, the total principal and interest due on the Promissory Note is $2,413,692.34. Interest continues to accrue at $397.13 per diem. Although Mr. Eberle attempts to controvert this figure by asserting that no accounting of the payments under the promissory note has been provided, he cites no evidence that he has requested such an accounting, nor has he cited any evidence to contradict RACC's affidavit of the amount due under the note. Accordingly, the court finds that the amount due is uncontroverted.

Defendant Michael Eberle was located and served with process. He filed his Answer and Counterclaim on June 14, 2002.

Mr. Eberle has not attempted to recover NC-35 from Mexico. He does not recall any conversations with representatives of RACC.

The Promissory Note and Security Agreement each had a Kansas choice-of-law provision.

Raytheon joined XL Specialty Insurance in this lawsuit because that company had issued an insurance policy relating to NC-35.

Mr. Eberle alleges several facts in opposition to RACC's motion. Some of these facts are supported by the record as required by Rule 56(e), and some are not. For example, Mr. Eberle asserts that RACC "sold the aircraft [NC-35] on September 3, 2000 without notice to Eberle" and "[i]t is believed that this sale was to the same person or persons who ultimately took the aircraft to Mexico on September 10, 2001." The affidavit and materials cited by defendant do not support these allegations.

Mr. Eberle also complains that he was not given notice of any deficiency until August 31, 2001, and that he was informed at a meeting with RACC in July of 2002 that RACC had located a flight log for NC-35's flight into Mexico. Mr. Eberle claims that he learned at this meeting that RACC had "attempted to negotiate a fire sale of the aircraft with the thief and impose the deficiency on Eberle until Eberle raised the issue of fiduciary breach and demanded that the aircraft be reported as stolen."

II. Summary Judgment Standards.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Thus, Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, because a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 322-23 (1986).

Under Rule 56, the moving party initially bears the burden of making a prima facie showing of the absence of a genuine issue of material fact and an entitlement to judgment as a matter of law. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). This burden may be satisfied by pointing to an absence of evidence on an essential element of the non-movant's claim. Id. at 671 ( citing Celotex, 477 U.S. at 325). Once the moving party carries this burden, the opposing party cannot simply rest upon the pleadings; it must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III. Summary of Arguments.

RACC asserts that when Mr. Eberle signed the guaranty, he waived any requirement of notice of default from RACC and any defense of impairment of collateral. It further argues that he waived any requirement that RACC proceed against the collateral before enforcing the guaranty. As for Eberle's claim that RACC breached a fiduciary duty, RACC contends there is no evidence that a fiduciary relationship existed between the parties. It contends that the relation was simply one of contract. In sum, RACC contends Mr. Eberle is liable by virtue of his guaranty for the debt owed on the promissory note.

Mr. Eberle argues that a question of fact exists as to whether RACC breached a fiduciary duty arising from RACC's superior knowledge concerning payments and insurance on the aircraft. He also claims (in an unexplained assertion) that he is not liable on the guaranty because of RACC's "acceptance of the change of ownership of the aircraft." Finally, Mr. Eberle asserts that a question of fact exists as to whether RACC sold the aircraft on September 3, 2000, without providing notice to him, and thus relieved him of liability on the guaranty.

IV. Discussion.

Pursuant to the plain and unambiguous terms of the guaranty contract, Mr. Eberle unconditionally guaranteed payment of MI-KA Aviation's obligations on the promissory note and the security agreement executed in connection with the purchase of NC-35. See Iola State Bank v. Biggs, 233 Kan. 450, 456, 662 P.2d 553 (1983) ("A contract of guaranty is to be construed, as other contracts, according to the intention of the parties as determined by reasonable interpretation of the language used, in light of the attendant circumstances."). In doing so, Eberle waived any requirement that RACC provide notice of a default or that it exhaust its rights against MI-KA or the collateral before enforcing the guaranty. See Kansas State Bank Trust Co. v. DeLorean, 7 Kan. App. 2d 246, 640 P.2d 343 (1982) (under unconditional guaranty, creditor is not required to first proceed against the principal obligor). See also K.S.A. § 84-9-601 (Supp. 2002) (remedies after default are cumulative; secured party may reduce claim to judgment and/or foreclose on the security interest). Accordingly, insofar as Mr. Eberle complains about RACC's failure to take the foregoing steps prior to bringing this action, such contentions do not affect Eberle's liability under the guaranty.

The court must also reject Mr. Eberle's contention that RACC breached a fiduciary duty. "The term `fiduciary relationship' refers to any relationship of blood, business, friendship, or association in which one of the parties places special trust and confidence in the other. It exists in cases where there has been a special confidence placed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one placing the confidence. A fiduciary has the duty to act in good faith and with due regard to the interests of the party placing confidence in the fiduciary." Hawkinson v. Bennett, 265 Kan. 564, Syl. ¶ 4, 962 P.2d 445 (1998). Absent special circumstances creating a relationship of trust and reliance, a creditor does not occupy a fiduciary position with respect to the guarantor of a loan and is not bound to act in the guarantor's best interests. Cf. Denison State Bank v. Madeira, 230 Kan. 684, 695 640 P.2d 1235 (1982) (relationship between a bank and its customer is ordinarily that of creditor-debtor and not that of a fiduciary). The duties imposed on RACC in this instance are governed by the law of contracts and commercial transactions. Mr. Eberle has cited no evidence of a special relationship that would have imposed a fiduciary duty on the plaintiff to act for his benefit. He claims that RACC had superior knowledge of the situation, including knowledge of the debtor's payment history and of the presence of insurance covering the aircraft, but the court sees no authority for declaring a fiduciary relationship from such matters. There is no evidence the parties agreed that Eberle would rely upon RACC to convey such information, that Eberle was unable to obtain such information on his own, or that RAAC exercised control of Eberle's financial affairs such that it was equitably obligated to protect his interests. See First Bank of Wakeeney v. Moden, 235 Kan. 260, 681 P.2d 11 (1984) ("There is no evidence which would suggest anything other than the ordinary debtor/creditor relationship between the plaintiff Bank and these defendants"). In sum, Mr. Eberle's claim that RACC breached a fiduciary duty is unavailing.

Mr. Eberle's allegation that RACC sold NC-35 at a "fire sale" price without notifying him, if substantiated, would likely affect Eberle's liability. Assuming the foreclosure provisions of Article 9 would apply if RACC sold the collateral, a sale by RACC without notice or in a commercially unreasonable manner could affect Mr. Eberle's liability notwithstanding the waiver provisions in his guaranty. See e.g., K.S.A. § 84-9-610 (Supp. 2002) (every aspect of a disposition of collateral must be commercially unreasonable) and K.S.A. § 84-9-602 (Supp. 2002) (obligor may not waive right to commercially reasonable disposition). Under the record now before the court, however, there is no evidence to substantiate defendant's claim that RACC sold the aircraft. Nor has Mr. Eberle cited any evidence to establish a breach of duty by RACC under the Kansas Commercial Code or under the parties' contract. Nor has he shown any circumstances that would operate to discharge his obligation under the guaranty. In sum, the court finds no grounds in the record upon which Mr. Eberle might be excused from liability under his guaranty.

V. XL's Motion to Stay.

RACC's amended complaint asserts a claim against defendant XL Specialty Insurance Company, alleging that this defendant is liable to plaintiff under an policy issued by XL insuring against the loss of the aircraft. XL Insurance has filed a motion to stay this claim pending the resolution of a declaratory judgment action raising the same issues filed by XL in California state court. XL argues that the state court action should be allowed to proceed because it was filed first and because personal jurisdiction and venue problems prevent this court from resolving the entire controversy. RACC opposes the motion to stay, arguing that the California action was filed first only because XL Insurance "raced to the courthouse" after it was informed that RACC intended to add the insurance claim to this federal action. RACC states that it would not be subject to personal jurisdiction in California, and it contends that this court has jurisdiction over all the necessary parties. On March 21, 2003, the court received a letter from Raytheon stating that the California court had granted Raytheon's motion to stay the state court action.

As the court noted in Heatron, Inc. v. Shackleford, 898 F. Supp. 1491 (D.Kan. 1995), in determining which of two simultaneously pending cases should proceed, courts generally follow the "first-to-file" rule, except when special circumstances exist. One such exception may arise where the first action was filed in apparent anticipation of a coercive suit for damages.

Based on the materials submitted, it appears to the court that the California action was filed by XL Insurance in anticipation of being added as defendant by RACC in this case. The court further concludes that it appears that this court likely has jurisdiction over the necessary parties, and that considerations of judicial economy and efficiency weigh in favor of proceeding in the instant action. Under the circumstances, the court concludes that the motion to stay this action should be denied and that the action should proceed. VI. Conclusion.

Plaintiff Raytheon Aircraft Credit Corporation's Motion for Summary Judgment (Doc. 44) against defendant Michael L. Eberle is GRANTED. It is Ordered and Adjudged that the plaintiff Raytheon Aircraft Credit Corporation shall recover of the defendant Michael L. Eberle the sum of $2,413,692.34, together with interest thereon at a rate of $397.13 per day from the date of December 12, 2002.

Defendant XL Specialty Insurance Company's Motion to Stay the case pending the outcome of the California action (Doc. 38) is DENIED.

IT IS SO ORDERED