United States District Court, D. Colorado
December 2016, the Undersigned referred Defendants'
motion to dismiss or, in the alternative, to transfer venue
(D.E. No. 45), to the Hon. Michael A. Hammer, U.S.M.J.
Thereafter, Magistrate Judge Hammer entered an Opinion and
Order granting in part Defendants' motion and
transferring this matter to the United States District Court
for the District of Colorado. (D.E. Nos. 52 (the
“Opinion”) & 53 (the “Order”)).
Nineteen days later, pro se Plaintiff Arthur McKee
Wisehart moved (i) to set aside certain portions of the
Opinion; (ii) to vacate the Order; and (iii) to transfer this
action to the Northern District of New York. (D.E. No. 56
(“Pl. Mov. Br.”)). Defendants opposed
Plaintiff's motion (D.E. No. 57), and Plaintiff filed a
reply (D.E. No. 58).
Although styled as a motion, Plaintiff's submission
appears to be an appeal of Magistrate Judge Hammer's
non-dispositive order. See L. Civ. R. 72.1(c)(1);
see Siemens Fin. Servs., Inc. v. Open Advantage M.R.I. II
L.P., No. 07-1229, 2008 WL 564707, at *2 (D.N.J. Feb.
29, 2008) (“A motion to transfer a case to another
district is considered a non-dispositive motion.”).
Indeed, Plaintiff states in his reply brief that he
“respectfully appeals to the District Court Judge, the
Hon. Esther Salas, U.S.D.J., from the Opinion, and Order,
that were issued by Magistrate Judge Michael A. Hammer . . .
.” (D.E. No. 58 at 19).
Under Local Civil Rule 72.1(c)(1)(A), “[a]ny party may
appeal from a Magistrate Judge's determination of a
non-dispositive matter within 14 days after the party has
been served with a copy of the Magistrate Judge's order .
. . .” Although Defendants challenge Plaintiff's
submission as untimely (see D.E. No. 57 at 4), the
Court will decide this appeal on the merits in accordance
with its discretion and in view of Third Circuit law. See
Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984)
(“[W]e have repeatedly stated our preference that cases
be disposed on the merits whenever practicable.”);
see also Higgs v. Att'y Gen. of the U.S., 655
F.3d 333, 339 (3d Cir. 2011) (“Our policy of liberally
construing pro se submissions is driven by the
understanding that implicit in the right of
self-representation is an obligation on the part of the court
to make reasonable allowances to protect pro se
litigants from inadvertent forfeiture of important rights
because of their lack of legal training.”).
reviewing an appeal of a non-dispositive order, a district
court “must review the magistrate judge's findings
to determine if any portion of the order is ‘found to
be clearly erroneous or contrary to law.'”
Siemens Fin. Servs., Inc., 2008 WL 564707, at *2
(quoting L. Civ. R. 72.1(c)(1)(A)); see also 28
U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). “A
finding is clearly erroneous when “‘although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.'” Doe v.
Hartford Life and Acc. Ins. Co., 237 F.R.D. 545, 547
(D.N.J. 2006) (quoting Anderson v. Bessemer City,
470 U.S. 564, 573 (1985)). The district court will not
reverse the magistrate judge's decision “even in
circumstances where the court might have decided the matter
differently.” Id. at 547-48. That said,
“a magistrate judge's legal conclusions on a
non-dispositive motion will be reviewed de
novo.” Id. at 548 (citing Haines v.
Liggett Grp., Inc., 975 F.2d 81, 91 (3d Cir. 1992)).
Magistrate Judge Hammer correctly recognized, 28 U.S.C.
§ 1391 determines proper venue in all civil cases.
(Opinion at 6). 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.”
Magistrate Judge Hammer concluded-and this Court agrees-that
venue “is clearly improper in New Jersey under §
1391(b)(1) because none of the Defendants reside in New
Jersey.” (Opinion at 6). As Magistrate Judge Hammer
correctly noted, Defendant Arthur Dodson Wisehart is a
resident of either Colorado or Illinois, Defendant Charles
Winston Wisehart is a resident of New York, and Defendant
Wisehart Springs Inn is a resident of Colorado.
Magistrate Judge Hammer also concluded-and this Court
agrees-that venue is “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.” (Id.) (quoting §
1391(b)(2)). Magistrate Judge Hammer correctly characterized
Plaintiff's Amended Complaint as containing “only a
few passing and unspecific allegations related to New
Jersey” and properly determined that these allegations
“are not enough to establish venue in this
District.” (Id. at 7-8) (citing Eviner v.
Eng, No. 12-2245, 2013 WL 6450284, at *3 (D.N.J. Dec. 6,
2013)). Plaintiff's appeal offers nothing to alter these
conclusions. (See generally Pl. Mov. Br.).
Finally, 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), this action could be
appropriately transferred there.” (Opinion at 8)
(footnote omitted). At its core, this case is about property
in Colorado. As Magistrate Judge Hammer found,
“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.” (Id.)
(citing generally D.E. No. 43 (“Am.
Compl.”)). In addition, Plaintiff is asserting claims
(such as fraudulent concealment, spoliation of evidence, and
the filing of unsworn complaints) stemming from various
litigations in Colorado and Ohio, including a pending
litigation in the District of Colorado. (Id.)
(citing Am. Compl. ¶¶ 17-18, 63-74). Thus, a
“substantial part of the events or omissions giving
rise” to this action occurred in Colorado.
the foregoing reasons, the Court agrees with Magistrate Judge
Hammer that this action should be transferred to the United
States District Court for the District of Colorado under 28
U.S.C. § 1406(a). (See Id. at 9).
Plaintiff's request to transfer this action to the
Northern District ...