Opinion
Civil Action No. 98-4982(JWB)
January 27, 1999
MARGARET Z. and S. MICHAEL DADIC, pro se, Wellington, Florida.
DONALD J. VESTAL, ESQUIRE, Hollywood, Florida, (Attorney for Defendants), CYNTHIA Z. and RICHARD WUEST, Parkland, Florida.
OPINION
This matter comes before the Court on its own Order to Show Cause why Count I of the plaintiffs' Complaint should not be dismissed for failure to state a claim upon which relief can be granted, and then why Counts II and III, asserting state law claims, should not be dismissed for lack of subject matter jurisdiction, or why this entire action should not be transferred to the United States District Court for the Southern District of Florida.
Plaintiffs pro se Margaret Z. Dadic and S. Michael Dadic ("the Dadics") filed the Complaint in this action on November 2, 1998. It asserts claims against defendants Cynthia Zmetronak Wuest and Richard Wuest ("the Wuests") for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. (Count I); interference with prospective advantage (Count II), and civil theft (Count III). The Complaint asserts that the Court has jurisdiction over this action pursuant to 18 U.S.C. § 1964 and 28 U.S.C. § 1331 and 1367.
BACKGROUND
The Court issued its Order to Show Cause on November 20, 1998. The Court noted that its jurisdiction over this action depended on the sufficiency of the RICO claim asserted in Count I of plaintiffs' Complaint, since all of the parties are citizens of Florida and the claims in Counts II and III arise under state law. In addition, the Court expressed doubt that Count I asserted a cognizable claim under 28 U.S.C. § 1962, and it added that it would decline to exercise supplemental jurisdiction over Counts II and III if Count I were dismissed for failure to state a claim upon which relief can be granted. In addition, the Court noted that, although certain property at issue in this litigation is located in New Jersey, all parties to this action are residents of the Southern District of Florida. It expressed doubt as to whether venue in the District of New Jersey was proper and advised that, under the circumstances, it was inclined, in any event, to transfer this action to the Southern District of Florida pursuant to 28 U.S.C. § 1404.
The parties submitted simultaneous responses to the Order to Show Cause. Plaintiffs' response included a motion for leave to file an amended complaint. Their proposed Amended Complaint asserts a claim for civil rights violations under 42 U.S.C. § 1983 (Count I); reasserts the civil RICO claim, but with more specificity (Count II); and asserts a claim for interference with prospective advantage (Count III). (The claim for civil theft asserted in the original Complaint is omitted in the proposed Amended Complaint.) Defendants' response to the Order to Show Cause attacks the sufficiency of the RICO allegations in the original Complaint and the plaintiffs' choice of venue, provides details of extensive related litigation that plaintiffs have commenced in Florida, and also includes an application to have defendants' counsel Donald J. Vestal, Esquire, admitted pro hac vice. Despite plaintiffs' opposition, the latter application is granted, nunc pro tunc.
ANALYSIS
A. The Amended Complaint
As an initial matter, the Court must address plaintiffs' motion for permission to file their Amended Complaint. Under Fed.R.Civ.P. 15(a), they may amend their Complaint "as a matter of course," since no "responsive pleading" has yet been served in this matter. (Id.) Accordingly, without further discussion, the Court will direct that the Amended Complaint be filed.
Plaintiffs' Amended Complaint asserts a new federal claim pursuant to 42 U.S.C. § 1983 and adds further specificity to plaintiffs' RICO claim. It thereby renders largely moot the analysis underlying the Court's Order to Show Cause, as well as defendants' arguments in response to that order. The Amended Complaint removes certain facial deficiencies in the RICO claim that were apparent in the original Complaint. In addition, it adds a whole new federal claim that may form a basis for the Court's jurisdiction. Without making any final determination as to whether the RICO and § 1983 counts asserted in the Amended Complaint state claims upon which relief can be granted, the Court determines that it will not dismiss this action for lack of subject matter jurisdiction.
B. Venue and Transfer
The Court concludes, however, that this action should be transferred to the Southern District of Florida. Although venue is proper here, the convenience of the parties and witnesses and the interests of justice require that this action be transferred pursuant to 28 U.S.C. § 1404(a).
1. Facts
All parties to this action reside in the Southern District of Florida. The Dadics reside in Wellington, Florida, although they allege, without detail, that they were residents of Hudson County, New Jersey, at earlier times "relative to portions of this case." (First Am. Compl., ¶. 1). The Wuests are residents of Broward County, Florida. (Id., ¶ 2). The Amended Complaint asserts that Ms. Wuest owns West Wind Pottery "an entity that has done business in the State of New Jersey," (id.), although it later indicates that the business travels, affecting commerce in Florida, Michigan, Pennsylvania, Virginia, New York, New Jersey and other states. (Id., ¶ 22).
In Count II, plaintiffs assert that defendants violated RICO, in part, by having certain real property removed from a trust of which Ms. Dadic was a beneficiary. (See id. at Count II). In Count III, they charge that defendants interfered with their prospective economic advantage by denying them the benefits of that trust. (See id. at Count III). The real property at issue in whole or in part in those claims is allegedly located in Bergen County, New Jersey. (Id., ¶ 6). Plaintiffs assert that venue is proper in this Court and the case should not be transferred because the real property in question is recorded here. Specifically, they argue that under New Jersey law, N.J.S.A. 2A:15-6, they may only obtain a Notice of Lis Pendens to protect innocent parties who may purchase the property if the property is the subject of an action pending in a New Jersey state or federal court. This is an accurate statement of New Jersey law. See N.J.S.A. 2A:15-6.
The Court notes, however, that other predicate acts underlying plaintiffs' RICO claim in Count II evidently occurred in Florida. These include: "extortion of real property in Florida" from the same two elderly relatives of plaintiffs and defendants from whom the New Jersey property was allegedly extorted, (Am. Compl., ¶ 21(c)-(d)), embezzlement of a Social Security pension fund belonging to Veronica Szalay, a resident of a nursing home in Lake Worth, Florida (id., ¶ 21(e)) (who is later described in plaintiffs' Amended Complaint as "of New Jersey," (id., ¶ 21(i)); and fraud and related activities in connection with identification documents of Ms. Szalay and others, effected by presenting forged documents to banks and state agencies in Florida (id., ¶ 21(f)). The other predicate acts alleged are mail fraud and Medicare fraud, carried out at unstated geographic locations. (Id., ¶ 21(g)-(h)). The Amended Complaint names a number of other members of the RICO enterprise, generally without stating their residency. (Id., ¶ 21(i)). However, two are identified as employees of the State of Florida's Department of Children and Family Services in Lake Worth, Florida. (Id., ¶¶ 4-5). Another is defendants' Florida attorney. (Id., ¶ 21(i)).
In addition, plaintiffs' § 1983 claim in Count I of their Amended Complaint arises out of actions taken by the Wuests and Florida Department of Children and Family Services employees in connection with incapacity and guardianship proceedings in Florida courts, allegedly under color of Florida law. (See id. at Count I). Count I alleges that plaintiffs were denied due process at those Florida proceedings by virtue of defendants' efforts to deny the members of the court access to medical records in violation of Florida law. (Id., ¶ 44).
In support of their § 1983 claim or other claims, the Amended Complaint alleges additional facts related to the state employees' handling of plaintiffs' complaint to the Senior Abuse Hotline in Tallahassee, Florida regarding defendants' treatment of their relatives. (Id., ¶ 24). These complaints were allegedly made in accordance with Florida law. (Id.) The Amended Complaint asserts that the Florida state employees failed to investigate the complaints as required under Florida law and instead threatened Ms. Dadic. (Id., ¶ 26). It also contains allegations related to those Florida state employees' scheduling of an interview with Ms. Dadic at her Florida home on Monday, December 1, 1998.
2. Application
The Court determines that while venue is proper here, this case should be transferred under 28 U.S.C. § 1404(a). Title 28 U.S.C. § 1391(b)(2) provides that a civil action not founded solely on diversity of citizenship may be brought in a "judicial district in which . . . a substantial part of the property that is the subject of the action is situated." (Id.) That provision applies here because some of the real property at issue in this case is located in this district.
Nonetheless, the case should be transferred to the Southern District of Florida. Title 28 U.S.C. § 1404(a) establishes:
For the convenience of the parties and witnesses in the interest of justice a district court may transfer any civil action to any other district or division where it might have been brought.28 U.S.C. § 1404(a). This action could have been brought in the Southern District of Florida pursuant to 28 U.S.C. § 1391(b)(1), which allows actions not founded solely on diversity to be brought in a judicial district where the defendants reside.
Courts weigh a variety of private and public interest factors in determining whether a case should be transferred to another district where the action could have been brought. See Gulf Oil v. Gilbert, 330 U.S. 501, 508-509 (1956). The private interests include:
plaintiff's forum preference as manifested in the original choice . . .; the defendant's preference . . .; whether the claim arose elsewhere . . .; the convenience of the parties as indicated by their relative physical and financial condition . . .; the convenience of the witnesses — but only to the extent that the witnesses may actually be unavailable for trial in one of the fora . . .; and the location of books and records (similarly limited to the extent that files could not be procured in the alternative forum). . . .Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) (citations omitted). The public interests include:
the enforceability of the judgment . . .; practical considerations that could make the trial easy, expeditious, or inexpensive . . .; the relative administrative difficulty in the two fora resulting from court congestion . . .; the local interest in deciding local controversies at home . . .; and the familiarity of the trial judge with the applicable state law in diversity cases.
(Id. at 879-80). Whether to transfer based on convenience rests within the sound discretion of the district court. See Lony v. E.I. DuPont de Nemours Co., 886 F.2d 628, 631 (3d Cir. 1989).
The Court is mindful that plaintiffs chose this forum to pursue their claims. "[C]ourts of this circuit have noted `unless the balance of convenience of the parties is strongly in favor of defendant, the plaintiff's choice of forum prevails.'" Telebrands Direct Response Corp. v. Ovation Communications, Inc., 802 F. Supp. 1169, 1175 (D.N.J. 1992) (citing Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970), cert. denied, 401 U.S. 910 (1971)). However, the plaintiff's choice is afforded less deference when the operative facts of a lawsuit occurred outside the forum state. See ATT Co. v. MCI Communications Corp., 736 F. Supp. 1294, 1306 (D.N.J. 1990). In addition, a plaintiff's choice of forum is considered less significant when the plaintiff chooses a forum that is not its own. See Richo Co. v. Honeywell, Inc., 817 F. Supp. 473, 480 (D.N.J. 1993) (citations omitted). Here, plaintiffs have not chosen their own forum, and all of the operative facts occurred outside of this forum, so their choice of forum is entitled to relatively little weight.
At the same time, all of the relevant witnesses, including the parties, and all of the relevant documents in this matter would appear to be located in the Southern District of Florida. Significantly, it appears that none are to be found in New Jersey. Defendants, understandably, prefer for this case to be litigated, if at all, in Florida. The local interest in adjudicating local disputes also favors transferring this action to Florida, as this case relates to the Florida residents' actions with respect to one another and the behavior of Florida state actors, matters of local concern. For the same reason, the burden of jury duty in this action is most appropriately imposed in Florida, rather than New Jersey, which has only a remote connection to this lawsuit. Finally, to the extent that the Amended Complaint alleges numerous violations of Florida law, those are best addressed by the United States District Court for the Southern District of Florida, rather than this Court, which is less qualified to interpret matters of that State's law.
Balanced against all of these factors is plaintiffs' argument that, under New Jersey law, they can only obtain a Notice of Lis Pendens on the real property that is partially the subject of this action, and thereby protect potential innocent purchasers, if that property is the subject of litigation pending in a New Jersey state or federal court. See N.J.S.A. 2A:15-6. The Court appreciates plaintiffs' concern. It notes, however, that even if this case were transferred, nothing would prevent plaintiffs from seeking an injunction against alienation of the property that would substantially accomplish the same ends as obtaining a Notice of Lis Pendens here. Weighing all of the relevant factors, the Court determines that the convenience of parties and witnesses and the interests of justice mandate that this action be transferred to the Southern District of Florida.
CONCLUSION
For the foregoing reasons, plaintiffs' motion for leave to file an Amended Complaint is granted, the Court directs that the Amended Complaint be filed, and this action is transferred to the United States District Court for the Southern District of Florida.
ORDER
For the reasons set forth in the Court's Opinion filed herewith.
It is on this day of January, 1999, ORDERED that:
1. The Court's Order to Show Cause dated November 20, 1998 be, and it hereby is, discharged;
2. Plaintiffs' are hereby permitted to file an Amended Complaint herein; and
3. This matter is hereby transferred to the United States District Court for the Southern District of Florida.