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Wisehart v. Wisehart

United States District Court, D. New Jersey

May 24, 2017




         This matter comes before the Court on the motion of Defendants challenging venue pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. §§ 1404(a) and 1406. D.E. 45. Defendants argue that the Court should either dismiss the matter under Rule 12(b)(3) or transfer it to the United States District Court for the District of Colorado. Plaintiff pro se Arthur McKee Wisehart opposes the motion. D.E. 46. Pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1, the Court decided this motion without oral argument. For the reasons set forth below, the Court will grant Defendants' motion in part, and transfer this matter to the District of Colorado.

         I. BACKGROUND

         a. Facts

         Plaintiff pro se, Arthur McKee Wisehart, alleges a variety of claims against his two adult sons, Arthur D. Wisehart (ADW) and Charles Winston Wisehart (CWW), and the Wisehart Springs Inn, a Colorado bed and breakfast (collectively “Defendants”). Plaintiff resides in New Jersey. Am. Compl. ¶35. Defendants ADW is a resident of Colorado, and the Wisehart Springs Inn is located in Colorado.[1] Defendant CWW is a resident of New York. Id. ¶¶45, 87, 90.

         Invoking the Racketeering and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et. seq., and the New Jersey Racketeer Influenced and Corrupt Organizations Act (NJ RICO), N.J.S.A. 2C:41-1 et seq., Plaintiff alleges that Defendants “engag[ed] in a systematic and persistent pattern and practice of racketeering activities and civil conspiracy in order to steal, misappropriate entitlements, personal property, involving chattels, and assets and properties and stock certificates, water rights, and other properties belonging to the plaintiff.” Am. Compl. ¶44, D.E. 43. Although Plaintiff purports to bring this action under federal and state racketeering laws, and refers to RICO quite often, the Amended Complaint does not explicitly present a RICO claim. Instead, the Amended Complaint specifically delineates the following three counts: (1) fraudulent concealment, (2) fraud and deceit and (3) unjust enrichment. Id. ¶¶111-82.

         The factual allegations in the Amended Complaint are sprawling. But they appear to arise primarily from a dispute over land in Colorado once owned by the Dorothy R. Wisehart Trust (“the DRW Trust”), for which Plaintiff was once the sole trustee.[2] Plaintiff alleges that in November 2009, ADW and CWW and other family members fraudulently induced him to sign a document appointing ADW as Plaintiff's co-trustee of the DRW Trust. ¶126; Exh. 21 to Am. Compl. Despite the pleading requirements of Federal Rule of Civil Procedure 9(b), the Amended Complaint fails to allege how the family members succeeded in fraudulently inducing him to sign the document. The Amended Complaint also fails to allege where this fraudulent inducement took place. Because of the fraudulent inducement, Plaintiff maintains that the document appointing ADW as co-trustee of the DRW Trust is “invalid, null and void.” Id. ¶¶127-29. Plaintiff claims to have unilaterally terminated the DRW Trust in writing on May 12, 2015. Id. ¶13.

         The DRW Trust owned land at 39540 and 39508 Pitkin Road in Paonia, Colorado. (“the Colorado property”). Am. Compl. ¶12. Plaintiff does not explain how long the DRW Trust owned this property, or how the property was used when the DRW Trust was the sole owner of the land. Plaintiff alleges that the DRW Trust was dissolved in May 2015, and that he then acquired ownership of the Colorado property. Plaintiff further alleges that he later transferred the property to his wife, Joan Lipin, via “four lawfully recorded Quit Claim Deeds” on January 2, 2016. Id. Plaintiff states that Lipin is the “recorded legal owner in fee simple absolute of the aforesaid real properties, and the structures and residential dwelling thereupon, and also the water and mineral rights.” Id.

         Much of Plaintiff's Amended Complaint concerns Defendants ADW and CWW's unlawful conduct in regards to this Colorado property where the Wisehart Springs Inn, also a defendant, now stands. For example, Plaintiff claims that Defendants are illegal and continuing trespassers on the Colorado property, and that the Wisehart Springs Inn “has engaged and continues to engage, in the solicitation of illegal and prohibited business activities.” Am. Compl. ¶¶10-14, 59. Plaintiff claims that through this trespass, Defendants have violated his water rights on the Colorado property, and have collected unlawful proceeds from crops planted on the open fields on the land, thus unjustly enriching Defendants. Am. Compl. ¶¶56, 170. He further alleges that Defendants have been using a Facebook page and a company website to “promote, advertise and solicit its illegal and unlawful business activities.” Id. ¶¶11, 52. Plaintiff asserts that Defendants, in so operating and advertising the Inn on the Colorado property, “have acted falsely and fraudulently by soliciting business on the Internet and by engaging in mail and wire fraud in violation of RICO…and also by engaging in false and deceptive unlawful business practices, as a result of their continuing unlawful acts.” Id. ¶15. According to Plaintiff, these “false and deceptive business practices in the name of Wisehart Spring Inn, ” which have resulted in profits from the operation of the inn itself and the profits gained from use of the water and agriculture rights, have unjustly enriched Defendants.

         The question of ownership of this Colorado property is currently being litigated in two other courts - the United States District Court for the District of Colorado in a matter initiated by Plaintiff's wife, Joan Lipin, and in a Colorado state court matter initiated by Defendants. Id. ¶¶14, 72, 122. In fact, Plaintiff accuses Defendants of engaging in civil conspiracy with their attorneys by initiating frivolous lawsuits related to property disputes in the state courts of Colorado (Delta County District Court) and Ohio (Preble County Court of Common Pleas).[3] Id. ¶¶17-18, 63-74. He accuses Defendants and their attorneys of filing unsworn complaints in the state court actions and of the spoliation and alteration of “materially relevant original documents” in the state court actions in Colorado and Ohio and in the federal court action currently pending in the District of Colorado. Id.

         In addition to the allegations set forth above, Plaintiff makes other, varied accusations against Defendants. However, it is difficult to understand the relevance of those allegations to the Plaintiff's legal claims against the Defendants.[4]

         b. Procedural History

         Plaintiff initiated this action on April 20, 2015. Compl., D.E. 1. On May 29, 2015, Defendants moved to dismiss Plaintiff's Complaint for improper venue, or alternatively, to transfer the matter to the District of Colorado. See Defs.' Mot. to Dismiss, D.E. 8. On December 29, 2015, Judge Salas granted Defendants' motion to dismiss without prejudice to Plaintiff's right to amend his Complaint. Opin., D.E. 26. Judge Salas concluded that there were no “substantial” allegations in Plaintiff's Complaint which related to New Jersey, and therefore, venue was improper in this District. Opin. at 7-11. Plaintiff filed his Amended Complaint on November 28, 2016, and Defendants again moved to dismiss for improper venue, or alternatively to transfer the case to the District of Colorado. Mot. to Dismiss, D.E. 45. The present motion was referred by Judge Salas to the Undersigned on December 13, 2016.

         II. ...

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