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Inmexti, S. De R.L. De C.V., A Limited Liability Company of Baja California, Republic of Mexico v. Tacna Services

September 6, 2012

INMEXTI, S. DE R.L. DE C.V., A LIMITED LIABILITY COMPANY OF BAJA CALIFORNIA, REPUBLIC OF MEXICO,
PLAINTIFF,
v.
TACNA SERVICES, INC., A CALIFORNIA CORPORATION; AND DOES 1 TO 30, DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER DENYING MOTION TO DISMISS

Defendant TACNA Services, Inc., ("TACNA" or "Defendant") has filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1), 12(b)(6), and 12(b)(7). For the reasons discussed below, Defendant's motion is DENIED.

I. BACKGROUND

This action arises out of a sublease of commercial property (the "Property") in Tijuana, Baja California, Mexico. The Property is held in a real-estate trust ("fideicomiso"), and there are two beneficiaries of the fideicomiso - Fibercon de Mexico, S.A. de C.V. ("Fibercon") (a Mexican stock company) and CJS Company, LLC ("CJS"). (Compl. ¶15.)

Plaintiff Inmexti, S. de R.L. de C.V. ("Inmexti") leases the Property from Fibercon. (Compl. ¶ 16.) In December 2010, Ross K. Baldwin, sole shareholder of TACNA and owner of about half of the stock of Mam De La Frontera, S.A. de C.V. ("Mam"), met with representatives of Inmexti to negotiate a sublease of the Property for use by a client of TACNA and/or Mam, Lawrence Avila dba Avila Garden Art ("Avila"). (Compl. ¶ 17-19.) Oswaldo Diaz also participated in the negotiations on behalf of Mam and/or TACNA. (Comp. ¶ 19.) The representatives of Inmexti disclosed to Baldwin and Diaz that Inmexti was leasing the Property from only one of the two beneficiaries of the fideicomiso and that there were legal actions between the beneficiaries with respect to the Property. (Compl. ¶¶ 20-21.)

Baldwin and Diaz insisted on a "escape clause," which would allow for early termination of the sublease upon 90-days notice. (Compl. ¶ 22.) Inmexti agreed to an escape clause on the condition that in the event that the escape clause was invoked, Mam would pay liquidated damages in the amount of five-months rent. (Compl. ¶ 23.) Inmexti also insisted that the Property would not be subleased to Mam unless TACNA signed a guaranty with certain terms and conditions. (Compl. ¶ 24.)

On or about December 21, 2012, the following documents were signed contemporaneously: (1) an acknowledgement, signed by Baldwin and Diaz, that Inmexti had disclosed the existence of the fideicomiso legal actions (Compl. Ex. 1); (2) a sublease titled Contrato de Arrendamiento de Naturaleza Mercantil ("Sublease") between Inmexti as sublessor and Mam as sublessee (Def. Ex. A.); and (3) a Guaranty of Lease ("Guaranty") executed by TACNA, as guarantor, in favor of Inmexti. (Compl. Ex. 3.)

The sublease provides that the term of the contract is 18 months, beginning February 1, 2011, with an option to renew the lease for another 18 months. (Sublease, Art. 3.1.) The rent was set at $8,047.00 per month plus VAT. (Sublease, Art. 4.1.) The VAT in Tijuana at that time was 11%, making the amount of VAT due under the Sublease $885.17 per month. (Compl. ¶ 34.) As negotiated, the sublease contains an "escape clause," which allows for early termination upon 90-days notice but obligates Mam to pay a termination fee in the amount of five months of rent. (Sublease, Art. 19.1.) The sublease also provides that in addition to the early termination fee, Mam is obligated to pay Inmexti a fee in the amount of 99% of the monthly rent payment for every month in which Mam does not deliver to Inmexti the possession of the Property at the end of the sublease. (Sublease, Art. 19.2.)

In the Guaranty, TACNA unconditionally guarantees the full, timely, and complete payment and performance of Mam's promises and obligations set forth in the Sublease. (Guaranty ¶ 2.1.) The Guaranty provides that the obligations of the Guarantor are "independent of the obligations of Sub-Lessee" and that the Guaranty shall not be affected if recovery against the Sub-Lessee based upon the Guaranteed Obligations becomes unenforceable for any reason. (Guaranty ¶ 2.2.) Under the Guaranty, the Guarantor waives all defenses and right which Guarantor might otherwise have to exoneration under the Guaranty. (Guaranty, ¶ 5.3.)

On or about August 9, 2011, Mam notified Inmexti that it was exercising the 90-day escape clause in the Sublease. (Compl. ¶ 62.) On or about November 17, 2011, Inmexti received a letter from Mam in which Mam explained that a company identified as "Avilas Garden Art S.A. de C.V." had taken possession of the Property on the alleged ground that Inmexti did not have possession of the Property. (Compl. ¶ 63.) The last month of rent paid by Mam was October 2011. (Compl. ¶ 68.) Mam has not delivered possession of the Property to Inmexti. (Compl. ¶ 69.) Inmexti has sent demand letters TACNA, but TACNA has refused to pay any part of the guaranteed obligations. (Compl. ¶¶ 65-67.)

On June 7, 2012, Inmexti commenced this suit. In its Complaint, Inmexti asserts a claim for breach of the Guaranty against TACNA.

II. DISCUSSION

TACNA moves to dismiss the Complaint on the grounds that (1) Inmexti has failed to establish that diversity jurisdiction exists; (2) the Complaint fails to state a claim upon which relief may be granted: and (3) CJS, a necessary party to this litigation, has not been ...


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