Wilmington Tr. v. Wilson's Elec.

Full title: WILMINGTON TRUST COMPANY, a banking corporation organized and existing…

Court: Superior Court of Delaware, New Castle County

Date published: Dec 28, 1999

CA. No. 99C-01-266-CHT (Del. Super. Ct. Dec. 28, 1999)

Opinion

CA. No. 99C-01-266-CHT.

December 28, 1999.

ARBITRATION CASE

ORDER

This the 28^th Day of December, 1999 upon consideration of Defendants' motion seeking to dismiss the Plaintiff's complaint pursuant to Superior Court Civil Rule 12(b)(2) and the record in this case, it appears that:

1. On November 20, 1995, the Defendants, Wilson's Electronics, Inc. and the Pijuans, executed and delivered to Plaintiff the Wilmington Trust Co. a note and commercial guaranty in the principal amount of $42,000.00. On January 28, 1999, the Plaintiff filed an action alleging that the Defendants were in default for failing to pay the money advanced to them under the terms of the note and guaranty.

2. On August 23, 1999 and in response to the complaint, Defendants Rachel and Joaquin Pijuan filed the instant motion. They argue that the Plaintiff lacks personal jurisdiction over them due to the fact that they are not residents of the State of Delaware, and did not transact business and/or enter into contracts in the State of Delaware. They do not address the terms and conditions of the loan that is at the heart of this litigation.

3. Specifically, the Guaranty contains a clause which states:

Applicable Law — This Guaranty has been delivered to Lender and accepted by Lender in the State of Delaware. If there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the Courts of New Castle County, State of Delaware. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counter-claim brought by either Lender or Guarantor against the other. This Guaranty shall be governed by and construed in accordance with the laws of the State of Delaware.

4. The jurisdictional clause clearly indicates that the moving Defendants have submitted to jurisdiction of the courts of this state over their persons relative to any lawsuit concerning the underlying loan. This agreement would only be unenforceable if shown to be unreasonable under the circumstances. Simm Assoc., Inc. v. PNC National Bank, Del. Super. C.A. No. 98C-02-219 (Quillen, J, Oct. 8, 1998). The Defendants do not assert that the agreement or above clause was unreasonable, therefore as stated in Simm Assoc., "the provision should be respected as the expressed intent of the parties." Id. at *4 (citing Pelleport Investors. Inc. v. Budco Quality Theaters. Inc., 9^th Cir., 741 F.2d 273, 280 (1984)).

5. The Defendants have failed to establish that they are not subject to jurisdiction in the State of Delaware in light of the language of the jurisdictional clause and lack of challenge thereto. Accordingly, the Defendants motion to dismiss for lack of personal jurisdiction cannot be granted and the action can go forward.

For the reasons set out above, the Defendants Motion to dismiss is hereby denied.

IT IS SO ORDERED.

TOLIVER, Judge.