United States District Court, D. Colorado
OPINION AND ORDER ON MOTION FOR SUMMARY
S. Krieger, United States District Judge.
MATTER comes before the Court on the Plaintiff's
Motion for Summary Judgment (# 127), the
Defendants' Response (# 173), and the
Plaintiff's Reply (# 175). For the
following reasons, the Motion is denied.
Court has jurisdiction under 28 U.S.C. § 1331 and §
summary of certain facts is relevant for resolution of the
pending motion. Plaintiff Arthur McKee Wisehart is the father of
both Defendants Arthur Dodson Wisehart and Charles Winston
Wisehart. Because all these parties share the same surname,
they will be identified by their roles in this lawsuit - the
Plaintiff and the Defendants.
dispute arises from issues of ownership of certain real
property in Paonia, Colorado on which the Wisehart Springs
Inn sits. The Complaint alleges that contrary to the
Plaintiff's ownership interest in the property, the
Defendants are operating and advertising the Wisehart Springs
Inn as a family owned Bed and Breakfast.
Complaint asserts three claims: two under various provisions
of the Racketeer Influence and Corrupt Organizations Act
(RICO), 18 U.S.C. § 1962, based on the predicate
offenses of “fraudulent concealment” and
“fraud and deceit” (# 43 at 34,
45), and a third cause of action for unjust
Plaintiff moves for summary judgment on all claims (#
127). The Defendants moved to strike the Motion as
violative of the Court's rules (# 147).
The Court denied the motion to strike (#
177). The Defendants' Response (#
173) mirrors the motion to strike and does not
substantively respond to the arguments raised by the
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if adjudication is authorized when there
is no genuine dispute as to any material fact and a party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
Substantive law governs what facts are material and what
issues must be determined. It also specifies the elements
that must be proved for a given claim or defense, sets the
standard of proof, and identifies the party with the burden
of proof. See Anderson v. Liberty Lobby Inc., 477
U.S. 242, 248 (1986); Kaiser-Francis
OilCo.v.Producer=sGasCo., 870 F.2d 563, 565 (10th
Cir. 1989). A factual dispute is “genuine” and
summary judgment is precluded if the evidence presented in
support of and opposition to the motion is so contradictory
that, if presented at trial, a judgment could enter for
either party. See Anderson, 477 U.S. at 248. When
considering a summary judgment motion, a court views all
evidence in the light most favorable to the non-moving party,
thereby favoring the right to a trial. See Garrett v.
Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir.
movant has the burden of proof on a claim or defense, the
movant must establish every element of its claim or defense
by sufficient, competent evidence. See Fed. R. Civ.
P. 56(c)(1)(A). Once the moving party has met its burden, to
avoid summary judgment the responding party must present
sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus. Inc. v. Arvin
Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.
1999). If there is a genuine dispute as to a material fact, a
trial is required. If there is no genuine dispute as to any
material fact, no trial is required. A court then applies the
law to the undisputed facts and enters judgment.
noted, the Amended Complaint contains three claims for relief
- two claims brought pursuant to RICO and an unjust
enrichment claim. The Plaintiff seeks summary judgment on all
claims, but the Motion is devoid of any mention or support
for the claim based on unjust enrichment. ...