The opinion of the court was delivered by: SHADUR
MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE
FIMSA, Inc. ("FIMSA") has sued Unicorp Financial Corporation ("Unicorp") and Marvin Rosenblum ("Rosenblum") to recover on guaranties executed by both defendants. On June 5, 1990 this Court issued the "Opinion" denying FIMSA's first motion for summary judgment on the grounds that defendants had amended their answer to add two affirmative defenses: tortious interference and mutual mistake.
At page 5 of its findings of fact ("Findings") and conclusions of law ("Conclusions") in the Opinion, entered pursuant to Fed. R. Civ. P. ("Rule") 56(d) on denial of FIMSA's motion, this Court concluded (footnote omitted):
Absent a determination by this Court (a) that the new defense asserted in the Amended Answer filed by Unicorp and Rosenblum is meritorious or (b) that Unicorp and Rosenblum have established that a mutual mistake caused the omission from their respective guaranties of a provision [granting each of them an 18-month grace period], Unicorp and Rosenblum are jointly and severally liable to FIMSA in the sum of $ 2.5 million plus interest, costs, expenses and reasonable attorneys' fees paid or incurred by FIMSA in attempting to collect and enforce any indebtedness covered by or related to the Unicorp Guaranty or the Rosenblum Guaranty, respectively.
Since the Opinion was issued, defendants have moved under Rule 15(a) for leave to amend their answer to assert the following additional defenses (each of the following quotations is from defendants' response to Count II in their Second Amended Answer):
1. that on account of FIMSA's lack of a certificate to do business in Illinois, "Plaintiff is barred from bringing suit in the courts of Illinois until it obtains a certificate of authority" (Third Affirmative Defense);
2. that "Plaintiff's public auction sale of Norcross' collateral was commercially unreasonable within the ambit of UCC § 9-504" (Fourth Affirmative Defense); and
3. that the "guarantees are void based on Plaintiff's misrepresentation" (Fifth Affirmative Defense) -- a contention based on a purported failure of consideration.
FIMSA has now again moved under Rule 56 for summary judgment. For the reasons stated in this memorandum opinion and order, its motion is granted.
FIMSA is a Colorado corporation having its principal place of business in Colorado. Unicorp is a New Jersey corporation having its principal place of business in New Jersey, and Rosenblum too is a citizen of New Jersey. That complete diversity of citizenship, of course, establishes the requisite federal jurisdiction (far more than $ 50,000 is in controversy here).
On January 13, 1989 FIMSA (by the "Sale") sold to Norcross, Inc. ("Norcross") its interest along with the rights of Crystal Greetings, Inc. ("Crystal") in property owned by Crystal. In part the Norcross purchase price was represented by a $ 2.5 million secured installment note dated December 31, 1988 (the "Note"). Under the Note's terms quarterly interest payments of $ 50,000 each were due and payable on March 31, 1989 and June 29, 1989. Norcross failed to make both those interest payments. Thus it owes FIMSA under the Note the principal sum of $ 2.5 million plus interest, costs and attorneys' fees, all of which continue to accrue.
As an affirmative defense, defendants assert that FIMSA interfered with an oral settlement between Norcross and Fulfillment Center of America ("FCA"). FIMSA has responded (P. 12(m) para. 9) and has offered proof (P. Ex. J para. 11-12) that no such agreement existed during the time (September-October 1989).
But even if such an agreement had existed (something defendants have not shown ...