O'Neal et al v. Wisen et al
Filing
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MEMORANDUM OPINION AND ORDER: After thorough review and careful consideration, the Court ORDERS that the 11 and 13 Memorandum in Support of Motion to Dismiss under FRCP 12(b) by Defendant, Richard Wisen be DENIED. Signed by Judge Irene C. Berger on 2/28/2017. (cc: attys; any unrepresented party) (msa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
JEFFREY O’NEAL and
SHERRIE O’NEAL,
Plaintiffs,
v.
CIVIL ACTION NO. 5:16-cv-08597
RICHARD WISEN and
G. RUSSELL ROLLYSON, JR.,
Defendants.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Memorandum in Support of Motion to Dismiss under FRCP
12(b) by Defendant, Richard Wisen (Documents 11 & 13)1 and the Plaintiffs’ Memorandum in
Opposition to Defendant Richard Wisen’s Motion to Dismiss for Lack of Jurisdiction (Document
14), as well as the Plaintiffs’ Complaint (Document 1). For the reasons stated herein, the Court
finds that the motion should be denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Plaintiffs, Jeffrey O’Neal and Sherrie O’Neal, initiated this action by filing their
complaint on September 6, 2016. They named as Defendants Richard Wisen, and G. Russell
Rollyson, Jr., individually and in his official capacity as the Deputy Commissioner of Delinquent
and Nonentered Lands of Raleigh County, West Virginia. The Plaintiffs assert that they owned a
1 The same one-page document was filed twice; no document labeled as a motion to dismiss appears on the docket.
home at 107 Jones Alley, Skelton, Raleigh County, West Virginia (Skelton property). In late
2015, Mr. Wisen and Mr. Rollyson worked together to deprive them of their home. The Plaintiffs
assert that Mr. Wisen, on several occasions, has obtained tax deeds from Mr. Rollyson at low
prices, and then attempted to re-sell the property to the prior owner for close to the fair market
value.
The O’Neals’ adult daughter, Jennifer Reynolds, and her children, lived in the Skelton
property. Ms. Reynolds made the mortgage payments, and the O’Neals agreed that the home
would be given to her if she successfully paid off the mortgage. Ms. Reynolds failed to pay the
property taxes between 2012 and 2015, for a total amount due of approximately $1,320. Mr.
Rollyson, in his capacity as Deputy Commissioner, sold the property to Mr. Wisen for $400 on
August 10, 2015. Mr. Wisen applied for a tax deed to the Skelton property two months later. On
October 8, 2015, Mr. Rollyson certified a redemption notice form that Mr. Wisen had altered,
which did not comply with statutory requirements. That form stated that the O’Neals “had to pay
the sheriff of Raleigh County ‘$1,353.65’ before November 12, 2015 to redeem the home and
avoid issuance of a tax deed to defendant Wisen.” (Compl. at ¶ 16.) Mr. Wisen sent the form by
certified and regular mail to Mr. and Ms. O’Neal, separately, at a Post Office box address, from
which it was returned, marked “Return to Sender Unclaimed Unable to Forward” or “Return to
Sender Not Deliverable as Addressed Unable to Forward.” (Id. at ¶¶ 19-20.) Mr. Wisen made
no additional attempts to contact the O’Neals, who assert that they would have paid the lawful
redemption amount immediately.
Sometime after November 12, 2015, Mr. Wisen presented Mr. Rollyson with the mail
marked undeliverable. On December 8, 2015, Mr. Rollyson, acting with his authority as Deputy
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Commissioner, issued a tax deed to Mr. Wisen. The Raleigh County Clerk recorded the deed on
December 23, 2015. The O’Neals learned of the tax issue and Mr. Wisen’s claimed ownership
when he caused a hand-written “eviction notice” to be placed on the front door of the Skelton home
in March 2016. Mr. O’Neal spoke with Mr. Wisen to learn what had happened and attempt to
regain ownership of the property. On May 17, 2016, Mr. Wisen filed a complaint in Raleigh
County Magistrate Court seeking possession of the Skelton property, wherein he claimed the
occupants were unknown. The Magistrate Court permitted service by publication. Counsel for
the Plaintiffs wrote Mr. Wisen, arguing that the tax deed was legally void and offering to repay
Mr. Wisen for the property taxes and fees in exchange for a quitclaim of the property back to the
Plaintiffs. Mr. Wisen refused, and has continued to seek possession of the property through the
Magistrate Court proceedings without serving the O’Neals.
The Plaintiffs seek relief for deprivation of their property under color of state law without
due process, in violation of 42 U.S.C. § 1983. In addition, they allege violations of W.Va. Code
§11A-3-54 and § 11A-3-55. They seek declaratory and injunctive relief, voiding the tax deed of
December 8, 2015, as well as actual damages, costs, attorney fees, and punitive damages from the
Defendants in their individual capacities, for the violations. In addition, they assert that they are
“entitled to an order setting aside the December 8, 2015 tax deed issued by defendant Rollyson to
defendant Wisen, pursuant to West Virginia Code §11A-4-4(a)” because the Defendants did not
comply with statutory and constitutional procedure for obtaining the tax deed. (Id. at ¶ 52.)
Mr. Wisen filed his motion to dismiss on November 3, 2016, and the Plaintiffs responded
on November 17, 2016. Mr. Wisen did not file a reply.
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STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(1) raises the fundamental question of whether
a court is competent to hear and adjudicate the claims brought before it. “In contrast to its
treatment of disputed issues of fact when considering a Rule 12(b)(6) motion, a court asked to
dismiss for lack of jurisdiction may resolve factual disputes to determine the proper disposition of
the motion.” Thigpen v. United States, 800 F.2d 393, 396 (4th Cir. 1986) rejected on other
grounds, Sheridan v. United States, 487 U.S. 392 (1988) (but explaining that a court should accept
the allegations in the complaint as true when presented with a facial attack that argues insufficiency
of the allegations in the complaint). Reasonable discovery may be necessary to permit the
plaintiff to produce the facts and evidence necessary to support jurisdictional allegations. Id.
The plaintiff has the burden of proving that subject matter jurisdiction exists. See Richmond,
Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991). The Fourth
Circuit has summarized the appropriate standard of review as follows:
[W]hen a defendant asserts that the complaint fails to allege
sufficient facts to support subject matter jurisdiction, the trial court
must apply a standard patterned on Rule 12(b)(6) and assume the
truthfulness of the facts alleged. On the other hand, when the
defendant challenges the veracity of the facts underpinning subject
matter jurisdiction, the trial court may go beyond the complaint,
conduct evidentiary proceedings, and resolve the disputed
jurisdictional facts. And when the jurisdictional facts are
inextricably intertwined with those central to the merits, the court
should resolve the relevant factual disputes only after appropriate
discovery, unless the jurisdictional allegations are clearly
immaterial or wholly unsubstantial and frivolous.
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Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009) (finding the jurisdictional question
intertwined with the substantive merits in an FTCA case, where United States argued that the
employee was acting outside the scope of employment.)
DISCUSSION
Defendant Richard Wisen moves to dismiss for lack of jurisdiction. He points out that
there is no diversity of citizenship and that the amount in controversy does not exceed $75,000.
He further argues that the Court lacks subject matter jurisdiction because “[t]his is a claim to
recover real property situate[d] in the Town District of Raleigh County, West Virginia.” He
asserts that the state statutes and precedent involving land title require that cases be brought in the
circuit court of the county where the land is located.
In response, the Plaintiffs argue that their claims pursuant to 42 U.S.C. § 1983 establish
federal question jurisdiction under 28 U.S.C. § 1331.
The Plaintiffs emphasize that their
allegation that the Defendants acted in concert, under color of state law, to deprive them of their
property without due process, states a § 1983 claim. They assert that the Court has supplemental
jurisdiction to consider their remaining state law claims pursuant to 28 U.S.C. § 1367.
This Court has original jurisdiction over “all civil actions arising under the Constitution,
laws or treaties of the United States.” 28 U.S.C. § 1331. “It is long settled law that a cause of
action arises under federal law only when the plaintiff’s well-pleaded complaint raises issues of
federal law.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). Mr. Wisen does not put
forth any argument regarding the substantive merits of the Plaintiffs’ § 1983 claim or the
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availability of a remedy under § 1983 for the claims asserted.2 As the Plaintiffs’ complaint clearly
asserts a federal claim, in addition to state claims, the Court finds that it enjoys jurisdiction
pursuant to 28 U.S.C. § 1331.
CONCLUSION
WHEREFORE, after thorough review and careful consideration, the Court ORDERS that
the Memorandum in Support of Motion to Dismiss under FRCP 12(b) by Defendant, Richard
Wisen (Documents 11 & 13) be DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:
February 28, 2017
2 The Court does not address the viability of the §1983 claim, as it has not been challenged, but treats it as well
pleaded. Numerous cases recognize that due process concerns attend tax sales of property. Mennonite Bd. of
Missions v. Adams, 462 U.S. 791, 800 (1983); Button v. Chumney, No. 1:13CV232, 2014 WL 2931901, at *6 (N.D.W.
Va. June 27, 2014), aff'd in part, appeal dismissed in part, 619 F. App'x 239 (4th Cir. 2015).
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