WISEHART v. WISEHART et al

Filing 52

OPINION. Signed by Magistrate Judge Michael A. Hammer on 5/24/17. (cm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
ARTHUR MCKEE WISEHART,
:
:
Plaintiff,
:
:
vs.
:
:
ARTHUR DODSON WISEHART,
:
WISEHART SPRINGS INN, AND
:
CHARLES WINSTON WISEHART,
:
:
Defendants.
:
____________________________________:

Civ. No. 15-2768 (ES)

OPINION

HAMMER, United States Magistrate Judge

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.

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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

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Plaintiff states that Defendant ADW could also be a resident of Illinois. Am. Compl. ¶45.

According to the Amended Complaint, Plaintiff’s mother created he DRW Trust in 1987. In
1992, Plaintiff was appointed as a trustee. Am. Compl. ¶¶42-43. The Trust was executed in
Indiana “in accordance with the laws of the State of Indiana.” Id. ¶114; Exh. 17 to Am. Compl.
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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

In 1993, upon the death of his mother, Plaintiff became the sole trustee of the DRW Trust. Id. ¶41.
Plaintiff claims that the document appointing him as trustee states: “During his lifetime Arthur M.
Wisehart shall have a general power of appointment as to both income and principal of this Trust.
He may appoint both income and principal to anyone including himself to the exhaustion thereof.”
Id. ¶116.
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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.

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It appears from the Amended Complaint that the Colorado state action concerns a similar dispute
over the same piece of land where Colorado Springs Inn stands. Am. Compl. ¶¶72, 122. The Ohio
state court action appears to stem from a dispute regarding another piece of land that is located in
Ohio and that is owned by either the DRW Trust, the Arthur McKee Wisehart Trust (“AMW
Trust”), or by Plaintiff himself. Id. ¶¶17-19, 23-26. The AMW Trust was created in 1994 and was
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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

notarized in Broome County, New York. Id. at 23; Exh. 32 to Am. Compl. Plaintiff and ADW
were named as co-trustees. Exh. 32 to Am. Compl. Plaintiff claims that ADW and CWW, through
the Ohio state court litigation, stole “very valuable farmland” in Ohio, which belonged to the trusts
or to Plaintiff directly, and that Defendants then “tortiously interfered with [Plaintiff’s] business
interests to sell [the Ohio] property at an Auction on July 9, 2015.” Id. ¶¶17-18, 157-59.
For example, Plaintiff also accuses his son CWW of “scatter[ing] rat poison all over the kitchen
floors and counters” at another one of Plaintiff’s properties located in New York. Id. ¶103.
Plaintiff also states that ADW and CWW “have conspired to commit, and have committed elder
abuse, intentionally, in the State of New Jersey against Plaintiff and his wife, in order to inflict
suffering mental pain and anguish, and emotional distress, and economic injuries upon [Plaintiff]
and Joan Carol Lipin, and such acts have resulted in serious, and emergency, dental or oral surgery
issues.” Id. ¶16.
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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.

DISCUSSION
Defendants argue that pursuant to 28 U.S.C. §1391(b), venue is improper in New Jersey

and the case should therefore be dismissed under Fed. R. Civ. P. 12(b)(3), or alternatively
transferred to an appropriate venue under 28 U.S.C. §1406(a). Defs.’ Br. in Supp. of Mot. at 4-5,
D.E. 45-1.
In all civil cases, 28 U.S.C. §1391 determines proper venue. Under §1391(b), a civil action
may be brought in:
(1) a judicial district where any defendant resides, if all defendants reside in
the same State,
(2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated, or
(3) a judicial district in which any defendant is subject to personal
jurisdiction at the time the action is commenced, if there is no district in
which the action may otherwise be brought.
Venue is clearly improper in New Jersey under §1391(b)(1) because none of the Defendants reside
in New Jersey. As noted previously, ADW is a resident of either Colorado or Illinois, CWW is a
resident of New York, and the Wisehart Springs Inn is a resident of Colorado. Am. Compl. ¶¶45,
87, 90.
Venue is also improper under §1391(b)(2) because a “substantial part of the events or
omissions giving rise" to Plaintiff's claims did not occur in New Jersey. The Third Circuit has
emphasized, and this District has repeatedly confirmed, that the events or omissions giving rise to
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a claim must be “substantial” and events and omissions which only bear “some tangential
connection with the dispute in litigation are not enough.” Cottman Transmission Sys., Inc. v.
Martino, 36 F.3d 291, 294 (3d Cir. 1994). The requirement of “substantiality is intended to
preserve the element of fairness so that a defendant is not haled into a remote district having no
real relationship to the dispute.” Id. The Third Circuit in Cottman explained that:
The test for determining venue is not the defendant's “contacts” with
a particular district, but rather the location of those "events or
omissions giving rise to the claim," theoretically a more easily
demonstrable circumstance than where a "claim arose." Although
the statute no longer requires a court to select the "best" forum, the
weighing of "substantial" may at times seem to take on that flavor.
Id. (internal citation omitted). The Third Circuit has also advised that "[i]n assessing whether
events or omissions giving rise to the claims are substantial, it is necessary to look at the nature of
the dispute." Id.
A review of Plaintiff’s Amended Complaint indicates that Plaintiff has made only a few
passing and unspecific allegations related to New Jersey, and that those allegations do not rise to
the level of “substantial” required under § 1391(b)(2).

For example, Plaintiff alleges that

“Defendants 1-3 have transacted affairs, in the State of New Jersey that are violative of [RICO],”
that ADW is the “mastermind of…other torts committed in the State of New Jersey.” Am. Compl.
¶¶31, 51. Plaintiff also states that Defendants “committed elder abuse, intentionally, in the State
of New Jersey against Plaintiff and his wife.” Id. ¶16. Plaintiff also alleges that Defendants
“committed acts in the State of New Jersey with intent to cause, and that have caused, irreparable
injury to plaintiff, and to Joan Carol Lipin, his wife, and to their business interests, and properties.”
Id. ¶66. Besides these aforementioned references to New Jersey, there is little other mention of
New Jersey in the Amended Complaint. A few passing references to New Jersey embedded in
Plaintiff’s Amended Complaint, which are extremely vague and appear plainly insignificant to this
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action, are not enough to establish venue in this District.

See Eviner v. Eng, 2013 U.S. Dist.

LEXIS 177125, *12 (D.N.J. 2013) (finding that “vague and unspecified communications”
occurring in New Jersey were insufficient to confer venue when all of the substantial events giving
rise to Plaintiff’s case occurred in New York). Similarly, the fact that Plaintiff and his wife have
suffered some alleged economic injury in New Jersey cannot justify keeping the case in this
District. Loeb v. Bank of Am., 254 F. Supp. 2d 581, 587 (E.D. Pa. 2003) (finding that the “impact
of the economic harm” felt by a plaintiff in his preferred District was “woefully insufficient” to
confer venue).
On the other hand, Defendants argue, and the Court agrees, that venue would be proper in
the District of Colorado pursuant to § 1391(b)(2), and based on 28 U.S.C. § 1406 (a), 5 the case
could be appropriately transferred there. Defs.’ Br. in Supp. of Mot. at 10, D.E. 45-1. Plaintiff’s
claims of common law trespass, unjust enrichment, violation of water and mineral rights, false
advertising, and deceptive unlawful business practices, all stem from Defendants’ alleged illegal
use and occupation of the Colorado property, and Defendants’ operation of the Wisehart Springs
Inn upon it. See generally Am. Compl. The Colorado property is at the heart of Plaintiff’s case.
Furthermore, Plaintiff’s claims regarding the filing of unsworn complaints in “vexatious” litigation
allegedly occurred in state court actions currently pending in Colorado and Ohio, not in New
Jersey. Plaintiff’s claims of fraudulent concealment and spoliation of evidence also occurred in
connection with both the state court actions in Colorado and Ohio and in the federal court action
pending in the District of Colorado. Id. ¶¶17-18, 63-74. Because a “substantial part of the events
or omissions giving rise” to the Plaintiff’s claims occurred in Colorado and because a substantial

28 U.S.C. §1406(a) states: “The district court of a district in which is filed a case laying venue in
the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case
to any district or division in which it could have been brought.”

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part of property that is the subject of the action is situated in Colorado, the Court concludes that
the District of Colorado is a proper venue for this action. See 28 U.S.C. §1391(b)(2). As such,
the Court will transfer the case to the District of Colorado pursuant to 28 U.S.C. §1406(a).

III.

CONCLUSION
For the reasons set forth above, this Court will GRANT Defendants’ motion [D.E. 45] and

transfer this matter to United States District Court for the Colorado pursuant to 28 U.S.C. §
1406(a).

The Court will deny as moot Defendants’ motion to dismiss for improper venue.

s/Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE

Dated: May 24, 2017

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