ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
THIS CAUSE came before the Court on Defendants Accurate Machine & Tool, LLC (“Accurate”) and Sunbelt Diversified Enterprises, LLC’s (“Sunbelt”, together with Accurate, the “Moving Defendants”) Motion to Dismiss Plaintiffs Sean Raimbeault and Lori-Ann Raimbeault’s (“Plaintiffs”) First Amended Complaint, ECF No. [45], for failure to join an indispensable party (the “Motion”, ECF No. [52]). The Court has reviewed the Motion, all supporting and opposing filings, considered the oral arguments at the September 29, 2014 hearing, the record in this case, and is otherwise fully advised in the premises. For the reasons set forth below, the Court denies the Motion.
I. PROCEDURAL BACKGROUND
Plaintiffs filed their original complaint on April 24, 2013 in the Circuit Court of Dor-chester County, South Carolina, captioned Raimbeault v. Accurate Machine & Tool, LLC, et al, Case No.2013-CP-18-76, asserting claims based on fraud, constructive fraud, unjust enrichment, violation of the South Carolina Unfair Trade Practices Act, S.C.Code § 39-5-10 et seq., and breach of contract. See ECF No. [1]. On June 21, 2013, Defendants Accurate and Sunbelt removed the action to the District Court for the District of South Carolina. Id. Accurate and Sunbelt then filed a motion to transfer venue to the Southern District of Florida on the basis of a choice of law and forum selection clause in an Asset Purchase Agreement (the “APA”) dated as of September 15, 2012, entered into between Plaintiffs and Accurate and subject of several of the claims asserted by Plaintiffs. See ECF No. [6]. After staying that motion pending resolution by the Supreme Court of Atlantic Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Tex., — U.S. -,
Plaintiffs assert the following claims in the First Amended Complaint: (i) civil conspiracy to commit fraud, against Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, DaGrosa, Neithardt and Sicilian; (ii) damages based on non-payment owed under a note, against Accurate; (iii) damages based on non-payment owed under a guarantee, against Sunbelt; (iv) alter ego, against 1848 Capital; (v) fraud, against Accurate, Sunbelt, 1848 Capital, Tol-zien, Wilder, DaGrosa, Neithardt and Sicilian; (vi) constructive fraud, against Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, DaG-rosa, Neithardt and Sicilian; (vii) unjust enrichment, against Accurate, Sunbelt and 1848 Capital; (viii) violation of the Florida Unfair and Deceptive Trade Practice Act, Fla. Stat. § 501.201 et seq. (“FUDTPA”), by Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, DaGrosa, Neithardt and Sicilian; and (ix) breach of contract as to a consulting agreement, against Accurate. See ECF No. [45].
Defendants filed the instant Motion to dismiss the First Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(7), for failure to join an indispensable party as required by Fed. R.Civ.P. 19, or in the alternative, to join that party to this action. Plaintiffs timely responded, ECF No. [58] (the “Response”), and the Moving Defendants timely replied, ECF No. [64] (the “Reply”). In addition, the parties appeared before the Court for oral arguments on September 29, 2014. ECF No. [84],
II. RELEVANT FACTS AS ALLEGED
This suit arises from a transaction in September 2012 through which Plaintiffs sold business assets to Accurate. Plaintiffs allege that the Defendants together conspired to defraud Plaintiffs and obtain possession of those business assets. See Am. Compl. ¶ 18.
A. The Laurentec Transaction
WDCI, LLC f/k/a Laurentec, LLC (“Lau-rentec”) is a limited liability company organized and existing under the laws of the State of South Carolina. Id. ¶ 19. Plaintiffs, both citizens and residents of South Carolina, were the sole shareholders of Laurentec. Id. ¶ 20. Laurentec was engaged in the production, fabrication, machining, subcontracting and sale of industrial and military defense parts on a contract basis. Id. ¶ 21.
Accurate and Sunbelt are both Florida LLCs, with Accurate’s principal place of business in Raleigh, North Carolina, and Sunbelt’s in Miami, Florida. Id. ¶¶ 2-3. 1848 Capital, a Delaware LLC with its principal place of business in Miami, Florida, is an equity owner of, partner in, and creditor of Sunbelt and Accurate. Id. ¶¶ 5-6. The remaining Defendants are principals and/or officers of the corporate Defendants. Id. ¶¶ 10-15.
In July 2012, Sunbelt approached Plaintiffs regarding acquiring Laurentec on behalf of 1848 Capital. Id. ¶ 22. Sunbelt and Plaintiffs ultimately executed a Letter of Intent, ECF No. [45-1] (“Letter of Intent”), in August 2012 providing for the acquisition of Laurentec’s assets by Sunbelt for a purchase price of $2.1 million. Am. Compl. ¶ 27, 30; Ltr. of Intent at 2. That total consideration was to include a $700,000 cash component, a three-year $650,000 promissory note issued by Sunbelt (and containing specific payment provisions), and a commission arrangement giving Plaintiffs 5% of sales made to certain existing customers up to $750,000. Ltr. of Intent at 2. As inducement for Plaintiffs to accept deferred consideration, Plaintiffs would be provided a security interest in the purchased equipment expiring upon Plaintiffs’ collection of $1 million in total consideration. Id.
In September 2012, Sunbelt informed Plaintiffs that the proposed transaction would require the approval of Chatham Capital Management III, LLC (“Chatham”), whom Sunbelt described as Sunbelt and Accurate’s unrelated third-party senior lender. Am. Compl. ¶ 36. Sunbelt represented that Chatham and/or 1848 Capital refused to allow Plaintiff to retain a security interest in
The Letter of Intent expired by its own terms on September 15, 2012. Am Comp. ¶ 40. To prove their good faith intent to move forward with the transaction, Accurate wired Plaintiffs $35,000 as a “no strings attached deposit” later in September 2012. Id. ¶¶ 40-41. On or about November 20, 2012, Accurate as buyer, Laurentee as seller and Plaintiffs as Laurentec’s shareholders executed the APA, pursuant to which significantly all of Laurentec’s assets were sold to Accurate. Id. ¶ 49; APA, ECF No. [45-2] at 1. Accurate paid $700,000 of the $2.1 million purchase price at closing, with the remaining portion of the purchase price financed by a promissory note in the principal amount of $650,000 issued by Accurate to Plaintiffs (the “Accurate Note”, ECF No. [45-3]). Am. Compl. ¶ 52; APA Art. II. As additional consideration, Accurate provided Plaintiff Sean Raimbeault with a consulting and commission agreement providing for total payments up to $750,000 (the “Consulting Agreement”, ECF No. [45-6]). Id. Concurrent with the APA, Sunbelt executed a guarantee in favor of Plaintiffs for $300,000 in principal payments under the Accurate Note (the “Sunbelt Guarantee”, ECF No. [45-4]). Am. Compl. ¶ 53. Also in connection with the APA, Plaintiffs, Accurate and Chatham entered into a subordination and intercreditor agreement (the “Intercreditor Agreement”, ECF No. [45-5]). Id. ¶ 55.
B. Chatham’s Role in the Corporate Defendants and the Transaction
According to the First Amended Complaint, 1848 Capital, Sunbelt and their owned or controlled companies, including Accurate, are all borrowers, debtors, guarantors or credit parties under various agreements with Chatham. Id. ¶ 34. Chatham is a lender to the corporate Defendants under the terms of a senior credit agreement, dated July 15, 2008 (the “Senior Credit Agreement”), pursuant to which it made loans or other financial accommodations to Accurate and its related entities. Id. ¶ 35; see ECF No. [45-5] at 1. Rather than an unrelated or third-party lender, Plaintiffs characterize Chatham as having a financial interest in Accurate and Sunbelt, based on, e.g., warrants to purchase stock and/or membership interests in those entities. Am. Compl. ¶¶ 58-59.
The corporate Defendants defaulted on certain obligations owed to Chatham on July 31, 2008, had been in continuous default on their senior credit facility with Chatham for the four years previous to the Laurentee transaction, and were generally unable to perform under their credit or debt obligations. Id. ¶¶42, 68. Despite this, Plaintiffs allege that Defendants represented to them that 1848 Capital, Sunbelt and Accurate were in good standing and performing on their obligations to Chatham and had sufficient capital to undertake the Laurentee transaction. Id. ¶¶ 46, 60. Rather, Plaintiffs allege that both Chatham and 1848 Capital provided Accurate with funding for the APA transaction, and that Defendants were in negotiations with Chatham to modify their debt obligations and cure their defaults while negotiating the Laurentee transaction. Id. ¶¶ 51, 44. In fact, Plaintiffs allege that on the same day the APA was signed, Chatham, Sunbelt and Accurate purportedly entered into a loan modification agreement curing the Defendants’ default, for the sole purpose of closing the Laurentee transaction. Id. ¶¶ 63-64. Defendants never informed Plaintiffs of their ongoing and developing defaults during negotiations towards and the closing of the Laurentee transaction. Id. ¶ 43.
C. Defendants’ Default and Non-Payment
On December 3, 2012, eleven days after closing the Laurentee transaction, Sunbelt, Accurate and a set of related borrowers “synchronously” defaulted on their obligations under the Senior Credit Agreement by, among other defaults, failing to make a collective payment of roughly $73,000 to
At the time of the corporate Defendants’ default on the Chatham facility, Plaintiffs remained in physical possession of the equipment sold under the APA Id. ¶ 72. Defendants did not inform Plaintiffs of that default. Id. ¶ 73. Despite being prohibited from doing so under the Intercreditor Agreement due to its default on its senior debt with Chatham, Accurate tendered its first payment due under the Accurate Note on January 1, 2013. Id. ¶74. Between that first payment and the due date of the second payment, Accurate obtained physical possession of the purchase equipment. Id. ¶ 75. Accurate refused to make any further payments under the Accurate Note. Id. ¶ 76. Sunbelt has refused to perform under the Sunbelt Guarantee and pay the amounts due and owing under the Accurate Note. Id. ¶ 107. Plaintiffs also allege that despite services provided by them to Accurate to assist in its business development, Defendants have failed to honor the Consulting Agreement by failing to pay commissions and failing to respond to customer proposals. Id. ¶¶ 156, 162.
D. Plaintiffs’ General Allegations
Plaintiffs allege that Defendants conspired to structure the Laurentec transaction as a sale to Accurate, rather than to Sunbelt, knowing Accurate had been in default with Chatham for years, and to have Plaintiffs accept a worthless guarantee from Sunbelt, instead of a security deposit in the purchase assets, all in order to defraud Plaintiffs. Id. ¶¶ 45-46. As part of that scheme to defraud Plaintiffs, Defendants persuaded Plaintiffs to execute the Intercreditor Agreement and hid Accurate and Sunbelt’s continuing and developing defaults and inability to perform under their senior obligations to Chatham. Id. ¶¶ 46, 56, 68, 70. “Plaintiffs would not have agreed to finance the purchase of Lauren-tee’s assets had they known that they would have no effective ability to enforce the agreements” due to Accurate and Sunbelt default and operation of the Intercreditor Agreement. Id. ¶¶ 46, 70. Plaintiffs further contend that Defendants conspired to intentionally default on their credit facility to avoid paying Plaintiffs. Id. ¶ 67. Finally, they allege that Defendants had Accurate make the first and only payment to Plaintiffs under the Accurate Note, with the intention to refuse to make any future payments under the Note, in order to secure Plaintiffs’ physical release of the purchase assets. Id. ¶¶ 76-78.
E. The Intercreditor Agreement
The Intercreditor Agreement is, by its own terms, an inducement and condition precedent to Chatham’s consummation of the transactions contemplated by the Senior Credit Agreement. It was required of Plaintiffs by Chatham in order to set forth the relative rights of Chatham and Plaintiffs with respect to the Senior Credit Agreement, the Accurate Note and certain related relationships. Interereditor Agreement at 1. The Intercreditor Agreement contains several provisions and definitions pertinent to this determination, including:
“Permitted Subordinated Debt Payments” shall mean payments of regularly scheduled payments of interest on and principal of the Subordinated Debt due and payable on a non-accelerated basis in accordance with the terms of the Subordinated Debt Documents as in effect on the date hereof or as modified in accordance with the terms of this Agreement.
“Subordinated Debt” shall mean all of the obligations of the Company to Subordinated Creditor evidenced by or incurred pursuant to the Subordinated Debt Documents.
“Subordinated Debt Documents” shall mean the Subordinated Note, any guaranty with respect to the Subordinated Debt and all other documents, agreements and*681 instruments now existing or hereinafter entered into evidencing or pertaining to all or any portion of the Subordinated Debt.
Pursuant to an Asset Purchase Agreement ... Subordinated Creditor is extending credit to the Company as evidenced by a Subordinated, Unsecured Promissory Note (as the same may be replaced, amended, restated, supplemented or otherwise modified from time to time; and together with any other promissory notes issued by the Company to Subordinated Creditor, the “Subordinated Note”).
Section 2.1 Subordination of Subordinated Debt to Senior Debt. The Company covenants and agrees, and Subordinated Creditor by its acceptance of the Subordinated Debt Documents (whether upon original issue or upon transfer or assignment) likewise covenants and agrees, notwithstanding anything to the contrary contained in any of the Subordinated Debt Documents, that the payment of any and all of the Subordinated Debt shall be subordinate and subject in right and time of payment, to the extent and in the manner hereinafter set forth, to the prior indefeasible payment in full in cash of all Senior Debt.
Section 2.3(a) Subordinated Debt Payment Restrictions. Notwithstanding the terms of the Subordinated Debt Documents, the Company hereby agrees that it may not make, and Subordinated Creditor hereby agrees that it will not accept, any Distribution with respect to the Subordinated Debt until Discharge of Senior Debt shall have occurred; provided, however, that the Company may make and Subordinated Creditor may accept Permitted Subordinated Debt Payments so long as, at the time of each payment, (i) no Senior Default exists which has not been cured or waived and (ii) after giving effect to such payment, the Company and its subsidiaries shall be in full compliance on a pro forma basis with each of the financial covenants set forth in Section 4 of the Senior Credit Agreement which relates exclusively to the Company and/or its subsidiaries as of the most recently reported fiscal period (as though such payment was made on the first day of such relevant fiscal period) (the conditions set forth in (i) and (ii) above, the “Permitted Pavement Conditions”).
Section 2.4 Subordinated Debt Standstill Provisions. Until Discharge of Senior Debt shall have occurred, Subordinated Creditor shall not, without the prior written consent of Agent, take any Enforcement Action with respect to the Subordinated Debt____Any Distributions or other proceeds of any Enforcement Action obtained by Subordinated Creditor in violation of the foregoing prohibition shall in any event be held in trust by it for the benefit of Agent and Senior Lenders and promptly paid or delivered to Agent for the benefit of Senior Lenders in the form received until Discharge of Senior Debt shall have occurred.
Section 18. CONSENT TO JURISDICTION. EACH OF SUBORDINATED CREDITOR AND THE COMPANY HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF FULTON, STATE OF GEORGIA AND IRREVOCABLY AGREES THAT, SUBJECT TO AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS.
ECF No. [45-5]. The Interereditor Agreement further defines Chatham as the “Agent”, Plaintiffs as the “Subordinated Creditors”, and Accurate as the “Company”. Id. Plaintiff has stated that “[i]f enforceable, the Standstill Provision operates to preclude the Plaintiffs from enforcing the Subordinated Debt ... in the event that Accurate defaulted under its loan with Chatham” and that “the Interereditor Agreement [] purportedly precludes the enforcement of the Accurate Note and the Sunbelt Agreement under the Standstill Provision in the event that Accurate was in default on its loan with Chatham.” Am. Compl. ¶¶ 57, 71.
Defendants Accurate and Sunbelt argue that Chatham is both a necessary and indispensable party to this action, primarily because the relief sought by Plaintiffs — payment under the Accurate Note and Sunbelt Guarantee — would abrogate the Intercreditor Agreement to which Chatham is a party and whose rights, as senior lender to Accurate and Sunbelt, the agreement was designed to protect. The Moving Defendants further characterize Plaintiffs as challenging the validity or enforceability of the Inter-creditor Agreement itself. Finally, the Moving Defendants contend that “Plaintiffs have made allegations of wrongdoing (and fraud) not only against the current Defendants, but against Chatham.” Mtn. at 4. Plaintiffs counter that complete relief can be afforded to all current parties to this action without joining Chatham because they are suing for a monetary judgment under only the Accurate Note, the Sunbelt Guarantee, the Consulting Agreement and the Defendants’ tortious activity. Plaintiffs maintain that they do not challenge the Intercreditor Agreement in this action. For the same reasons, Plaintiffs argue that Chatham has no interest relating to this litigation, either at risk of impairment due to Chatham’s absence, or such that the current parties would be subject to inconsistent obligations when the Court disposes of this action. The parties further disagree as to whether, even if Chatham’s joinder is required if feasible, Chatham should be considered indispensable to this action — an argument which centers on the forum selection clause in the Intercreditor Agreement ostensibly requiring litigation in Georgia, not before this Court.
A. Standard for Dismissal for Failure to Join
Dismissal of an action pursuant to Fed. R.Civ.P. 12(b)(7), for failure to join a party under Fed.R.Civ.P. 19, is a “two-step inquiry.” See Focus on the Family v. Pinellas Suncoast Transit Authority,
“First, a court must decide whether an absent party is required in the ease under Rule 19(a).” Int’l Importers, Inc. v. Int’l Spirits & Wines, LLC,
Rule 19(b) enumerates a list of the most significant factors considered in determining whether joinder of an absent party is indispensable, which includes “whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder” of the absentee. Fed.R.Civ.P. 19(b). Those factors “must be reviewed in light of pragmatic concerns, especially the effect on the parties and the litigation.” Sierra Club v. Leathers,
B. Whether Chatham is a Required Party under Rule 19(a)(1)
Whether Chatham is a required party in this litigation under Rule 19 turns on a consideration of Plaintiffs’ several claims and their relationship with both the current parties and with Chatham.
Alter Ego Claim. Plaintiffs’ alter ego claim is a means of implicating all of the corporate Defendants — 1848 Capital along with Accurate and Sunbelt — in Plaintiffs’ other causes of action. Even acknowledging Plaintiffs’ allegation of Chatham’s financial and potentially equity interest in the corporate Defendants, the alter ego claim cannot be fairly read to assert that any of the named Defendants are the alter ego of Chatham. Therefore, the alter ego claim has no bearing on the issue of Chatham’s required joinder to this action.
Tort Claims. Plaintiffs’ claims sounding in tort and for violation of FUDTPA do not implicate required joinder. “It is a basic rule of the law of joinder that ‘it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.’ ” United States v. Janke,
Contract-Based, Claims. In cases challenging the enforceability or validity of a contract, joinder of all parties to that contract will typically be required. See Dawavendewa v. Salt River Project Agr. Imp. and Power Dist.,
However, when the subject litigation involves a contract under which an absent party has no rights or obligations, even though the absent party may be impacted by the pending action due to a separate contract to which it is a party but that is not at issue, joinder of that absent party will not be required to determine obligations under the disputed contract. See MasterCard Int’l Inc. v. Visa Int’l Serv. Ass’n, Inc.,
This reasoning — requiring joinder of parties to a challenged contract but not non-parties to the contract at issue who are otherwise impacted by the court’s adjudication of that contract — is reinforced by the distinction drawn between “inconsistent obligations” as articulated in Rule 19 and inconsistent adjudications or results. “Inconsistent obligations occur when a party is unable to comply with one court’s order without breaching another court’s order concerning the same incident. Inconsistent adjudications or results, by contrast, occur when a defendant successfully defends a claim in one forum, yet loses on another claim arising from the same incident in another forum.” Delgado v. Plaza Las Americas, Inc.,
As an initial matter, the Court notes that Plaintiffs and Chatham are not “joint obligees” as that term is used to require joinder under Rule 19. Joint obligees are typically considered necessary and indispensable parties, see Brackin Tie, Lumber & Chip Co. v. McLarty Farms, Inc.,
The only contract to which Chatham is a party under consideration here is the Inter-creditor Agreement. While there is language in both the Accurate Note and the Sunbelt Guarantee that contemplates the In-tercreditor Agreement or otherwise enforces its subordination and standstill provisions,
Furthermore, the protections afforded Chatham under the Interereditor Agreement do not, by their own terms, extend to the Sunbelt Guarantee. The subordination, subordinated debt payment restriction, and standstill provisions of the Interereditor Agreement all apply to “Subordinated Debt”, which is defined as “obligations of the Company to Subordinated Creditor evidenced by or incurred pursuant to the Subordinated Debt Documents.” See Interereditor Agreement at 4 and §§ 2.1, 2.3(a), 2.4 (emphasis added). “The Company” refers only to Accurate. Id. at 1. Therefore, while referencing the Sunbelt Guarantee,
In the final analysis, disposition of the Motion tarns on whether Plaintiffs seek to challenge the validity or enforceability of the Interereditor Agreement, to which Chatham is a party, through this action. The Moving Defendants correctly point to several instances in the First Amended Complaint where Plaintiffs appear to undermine the Intercreditor Agreement. For example, Plaintiffs represent that “[ijf enforceable ... the Inter-creditor Agreement [ ] purportedly precludes the enforcement of the Accurate Note and the Sunbelt Agreement.” Am. Compl. ¶¶ 57, 71 (emphasis added). However, in their Response, Plaintiffs state outright that “[t]he validity and enforceability of the Intercreditor Agreement, whether in whole or in part, is not a part of this litigation.” Response at 5. When prompted by the Court at the September 29 hearing on the Motion, counsel for Plaintiffs repeatedly stated that Plaintiffs are not challenging the Interereditor Agreement “in these proceedings.” The Court will hold them to it. To that end, Plaintiffs are reminded what effect judicial estoppel would have on their claims. See, e.g., Allapattah Servs., Inc. v. Exxon Corp.,
The Court wonders how Plaintiffs will ultimately benefit from the relief they seek in this action with respect to the Accurate Note given their own obligations under the Inter-creditor Agreement not to accept payment in abrogation of Chatham’s senior creditor status and not to take any enforcement action under the Note until the discharge of Chat-ham’s senior debt. See Interereditor Agreement §§ 2.3(a), 2.4. At the September 29 hearing, Plaintiffs admitted that the Inter-creditor Agreement precludes acceptance by Plaintiffs of any distribution under the Accurate Note. They further admitted that they would likely need to initiate suit against Chatham should they ultimately succeed in this action with respect to the Note. Plaintiffs’ admitted violation of the Interereditor Agreement’s Standstill Provision may also preclude equitable relief on their unjust enrichment claim. Nevertheless, Chatham’s interests under the Interereditor Agreement are simply not at issue here. As such, it is
C. Whether Chatham Would Be an Indispensable Party Under Rule 19(b)
Because the Court concludes. that joinder of Chatham to this action is not required under Rule 19(a)(1), the Moving Defendants’ Rule 12(b)(7) motion fails regardless of the Rule 19(b) analysis. Had Chatham’s joinder been required, however, dismissal would still have been inappropriate.
The Moving Defendants posit that the forum selection clause in the Intercreditor Agreement, designating state and federal courts in Fulton County, Georgia, and not courts in this District as the proper forum, renders venue improper and requires dismissal upon Chatham’s joinder to this action. However, the forum selection clause only requires a Georgia forum upon Chatham’s election — the clause is not automatic, and Chatham could, in an action relating to the Intercreditor Agreement, forgo that election. See Intercreditor Agreement § 18. Even if Chatham were joined, and elected to enforce the forum selection clause in the Interereditor Agreement, it is uncertain whether the forum selection clause in that agreement, or the Florida forum selection clauses in the APA (section 10.11), the Accurate Note (section 11.4) and the Sunbelt Guarantee (section 8) — contracts certainly central to this action — would govern. See, e.g., Fred Lurie Assoc., Inc. v. Global Alliance Logistics, Inc.,
IV. CONCLUSION
For the aforementioned reasons, Chatham is not a required party under Rule 19. Therefore, Chatham need not be joined to this action, and dismissal pursuant to Rule 12(b)(7) is inappropriate. The Moving Defendants’ Motion must therefore be denied.
Accordingly, it is hereby ORDERED AND ADJUDGED that
1. Defendants Accurate Machine & Tool, LLC and Sunbelt Diversified Enterprises, LLC’s Motion to Dismiss For Failure to Join an Indispensable Party, ECF No. [52], is DENIED.
2. Defendants Accurate Machine & Tool, LLC and Sunbelt Diversified Enterprises, LLC’s request to join Chatham Capital Management III, LLC, is DENIED.
Notes
. Plaintiffs allege that Chatham has taken no action against either Accurate or Sunbelt to enforce its rights upon these defaults, and continues to "transact business” with the corporate Defendants. Id. ¶¶ 79-80.
. The Court notes that, at the September 29 hearing, Plaintiffs stressed that they have not sued Chatham, and stated that they do not have any reason to believe Chatham was involved in the alleged fraud or conspiracy.
. Section 6 of the Accurate Note provides,
Holder by its acceptance of this Note, agrees that all amounts (including all Principal, Interest, fees, expenses, indemnities and other payments) payable by the Borrower hereunder shall be deemed to be "Subordinated Debt” and shall be subordinated to the Chatham debt under the terms of that certain Subordination and Intercreditor Agreement, dated as of the date hereof, by and among Borrower, Holder and Chatham.
ECF No. [45-3]. Section 3 of the Sunbelt Guarantee provides, in relevant part,
Notwithstanding anything to the contrary set forth herein, the Shareholders acknowledge and agree that to the extent that any subordination documents or agreements (collectively the "Senior Documents”) executed by the Shareholders and delivered to a Senior Creditor, as that term is defined in the Purchase Agreement, provide for a deferral or delay in the payment of the Obligations, and Buyer subsequently defers or delays the payment of the Obligation due in reliance of any terms of the Senior Documents, Guarantor shall be entitled to the same deferral or delay in the performance of its obligations hereunder, subject to a maximum delay or deferral in payment of sixty (60) days.
ECF No. [45-4].
. The same is true with regards to Plaintiffs’ claim for breach of the Service Contract.
. "Subordinated Debt Documents” is defined to include the Accurate Note, "any guaranty with respect to the Subordinated Debt and all other documents, agreement and instruments ... evidencing or pertaining to the Subordinated Debt.” Id. at 5.
. Of course, the determination that Chatham is not a required party under Rule 19 does not speak to whether Chatham may intervene in this action under Fed.R.Civ.P. 24, or whether any of the Defendants may join Chatham to the action through, e.g., an interpleader action seeking declaratory relief under Fed.R.Civ.P. 22(a)(2).
. Further, since Chatham’s joinder is not required, the Court need not consider whether dismissal could be warranted if Chatham's join-der was required but not feasible given the implication that dismissal for nonjoinder due to competing venue issues would strip Plaintiffs of any adequate remedy. See Fed.R.Civ.P. 19(b)(4).