United States District Court, N.D. Oklahoma
CAPITAL DEVELOPMENT AFFILIATES LLC, Plaintiff and Counterclaim Defendant,
ZELAND BENJAMIN THIGPEN, III, Defendant and Counterclaim Plaintiff, and ZELAND BENJAMIN THIGPEN, III, Third Party Plaintiff,
ICD METALS, LLC, Third Party Defendant.
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
an action to enforce a guaranty. Before the Court are
plaintiff Capital Development Affiliates, LLC's, motions
to dismiss defendant Zeland Benjamin Thigpen III's
counterclaims (Dkt. # 11) and to strike his third party
complaint (Dkt. # 12), and defendant's motion to defer
defendant's response to plaintiff's motion for
summary judgment (Dkt. # 22).
is a limited liability company organized and existing under
the laws of the State of New York and maintains its principal
place of business at 150 East 52nd Street, New York, New
York. Defendant is a resident of the State of Oklahoma and
resides at 8211 South Delaware Place, Tulsa, Oklahoma. Dkt. #
1, at 2. Defendant and his wife, Cheryl Thigpen, were the
sole members of Julimar Trading, LLC (Julimar), a now defunct
company that conducted business “in the international
purchase and sale of industrial metallic alloys.”
Id.; Dkt. # 7, at 4.
26, 2015, Julimar executed a security agreement wherein it
granted a third party, ICD Metals, LLC (Metals LLC), a
security interest in Julimar's right, title, and interest
to certain collateral. Dkt. # 1-1.
September 30, 2015, Julimar executed a demand note (the note)
wherein it agreed to pay Metals LLC, on demand, a principal
sum of $2, 933, 356. Dkt. # 1-2, at 1. Additionally, pursuant
to the note, Julimar agreed to (1) pay interest on the
outstanding principal balance at a rate of 12% per annum,
calculated on the basis of a 360 day year and twelve months
of 30 days; (2) make payments on the first day of each month
commencing October 1, 2015 and pay a late payment charge of
5% of any interest or required principal payment made more
than ten days after the due date thereof; (3) upon the stated
or accelerated maturity of the note, pay interest at a per
annum rate of 5% in excess of the normal interest rate; and
(4) should the indebtedness be collected at law, pay all
costs of collection, including reasonable attorney fees.
September 30, 2015, as additional security for Julimar's
obligations under the note, defendant executed a guaranty,
wherein he guaranteed the punctual and full payment of all
present and future indebtedness of Julimar to Metals LLC.
Dkt. # 1-3. The guaranty contained the following provision,
Nature of Guaranty. This Guaranty is an
absolute, unconditional, continuing, direct and immediate
guaranty of payment and not just of collection and is no way
conditioned upon or limited by or in any other way affected
by . . . any defense asserted or claimed by Borrower with
respect to Borrower's Obligation . . . . The obligations
of Guarantor under this Guaranty shall not be subject to any
counterclaim . . . setoff . . . or defense based upon any
claim that Guarantor may have against Borrower or Lender . .
Id. at 3. In addition, the guaranty stated that it,
“shall be governed by, construed and interpreted in
accordance with the laws of the State of New York.”
Id. at 11. On February 12, 2016, defendant and
Cheryl Thigpen executed an amended guaranty; it contained the
same provisions as the original but added Cheryl Thigpen as a
guarantor. Dkt. # 29-5.
April 1, 2016, Metals LLC assigned the note, security
agreement, and amended guaranty to plaintiff. Dkt. # 1-4. In
a May 3, 2016 letter to Julimar, plaintiff declared the
unpaid principal, interest, default interest, late charges,
and other amounts specified in the documents to be
immediately due and payable. Dkt. # 1-5. Plaintiff demanded
payment no later than May 13, 2016. Id. On May 20,
2016, plaintiff sent a second letter to Julimar, advising
Julimar that it failed to make payment of the required
amounts by May 13, 2016 and that plaintiff reserved all
rights arising from Julimar's default. Id. As a
consequence of Julimar's default, according to plaintiff,
there is now due and owing to plaintiff $2, 933, 356,
together with interest at the rate of 12% per annum from the
1st day of September 2016, and additional sums for late
payment charges, attorney fees, costs, and expenses. Dkt. #
1, at 5.
November 18, 2016, Julimar, defendant, and Cheryl Thigpen
filed Chapter 7 Bankruptcies in the United States Bankruptcy
Court for the Northern District of Oklahoma. Dkt. # 16-4, at
5. Defendant's bankruptcy discharge, however, was waived
pursuant to an order entered on May 11, 2017. Dkt. # 16-6.
20, 2017, plaintiff filed this action, alleging that, because
the note remains in default, defendant has breached the
amended guaranty. Dkt. # 1, at 6. Plaintiff seeks a judgment
in its favor in the principal amount of $2, 933, 356,
together with interest at the rate of 12% per annum from the
1st day of September, 2016, along with additional sums for
late payment charges, attorney fees, costs, and expenses.
Id. at 6-7.
response to plaintiff's complaint, defendant filed an
answer (Dkt. # 7), a counterclaim (Dkt. # 8), and a third
party complaint (Dkt. # 9) against Metals LLC. In
defendant's counterclaim, he states, “Defendant and
Metals LLC entered into a joint venture . . . to conduct
business in the international purchase and sale of industrial
metallic alloys . . . . ” Dkt. # 8, at 4. Defendant
does not, however, submit documentation supporting this
statement, and the joint venture agreement that plaintiff
submits states that the joint venture was between Julimar
(i.e. not defendant) and Metals LLC. Dkt. #11-7. In
addition, in his counterclaim defendant alleges the
In December 2014, Metals LLC entered into several
transactions . . . that were [not] approved by Defendant.
Metals LLC incurred substantial losses as a result of the
Unapproved Transactions of more than $2, 000, 000.
Metals LLC then allocated losses from the Unapproved
Transactions to the Joint Venture, and claimed all of
Defendant's share of profits gained from Approved
Transactions as an offset.
When Defendant objected, Metals LLC replied that unless
Defendant acceded to the allocation of the losses from the
Unapproved Transactions, it would deny Defendant any access
to capital needed to finance further transactions, but if
Defendant agreed to the reallocation of losses, financing
Defendant signed the promissory note and guaranty in reliance
on promises by Metals LLC that it would provide financing for
further transactions by the Joint Venture.
However . . . within 90 days after Defendant executed the
promissory note, Metals LLC ceased providing any ...