United States District Court, D. New Jersey
MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE
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.
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. Defendant CWW is a resident of New York.
Id. ¶¶45, 87, 90.
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.
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. 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.
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.
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
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). 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.
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
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.