Perlmutter v. Varone, Civil Action No. 13–1872 ABJ

• Decision Date: 22 July 2014
• Docket Number: Civil Action No. 13–1872 ABJ
• Citation: 59 F.Supp.3d 107
• Parties: Dawn Perlmutter, et al., Plaintiffs, v. Trina and Jeffrey Varone, et al., Defendants.
• Court: U.S. District Court — District of Columbia

59 F.Supp.3d 107

Dawn Perlmutter, et al., Plaintiffs

v.Trina and Jeffrey Varone, et al., Defendants.

Civil Action No. 13–1872 ABJ

United States District Court, District of Columbia.

Signed July 22, 2014

Dawn Perlmutter, Yardley, PA, pro se.

Thomas M. Bolick, Richboro, PA, pro se.

James Stephen McAuliffe, III, Rachel T. McGuckian, Miles & Stockbridge P.C., Anthony Stephen Conte, Law Offices of A. Stephen Conte, Paul F. Leonard, Jr., Silvia Carolina Kinch, Rockville, MD, Matthew William Lee, Wilson Elser Moskowitz Edelman & Dicker, LLP, McLean, VA, Andrew Tak Nichols, Rollins, Smalkin, Richards & Mackie L.L.C., Michele J. McDonald, Office of the Attorney General, Baltimore, MD, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiffs Dawn Perlmutter and Thomas M. Bolick bring this pro se action against defendants Trina and Jeffrey Varone, Gary Altman, Altman & Associates, Rabbi Shalom Raichik, Mark S. Roseman, John and Jane Does 1–10, Scott Perlmutter, Montgomery County, Maryland, and Maryland Circuit Court Judges Steven G. Salant and Terrence J. McGann. Compl. at 7–9¹ [Dkt. # 1]. The complaint also names Hope Village, a “community-based Residential Reentry Center” located in the District of Columbia, as a defendant in rem .² Id. at 8. All of the claims in plaintiffs' eighty-two page complaint appear to arise from the death in Maryland of plaintiff Perlmutter's mother, Joan Sutton, the probate of Ms. Sutton's estate in Maryland, and the prior litigation in Maryland relating to the estate.

Every named defendant has moved to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a) (2012).³ See Defs. Varone & Raichik's Mot. to Dismiss for Improper Venue & Mem. in Supp. [Dkt. # 2]; Def. Hope Village, Inc.'s Mot. to Dismiss for Improper Venue & Mem. in Supp. [Dkt. # 4]; Defs. Gary Altman, Esq. & Altman & Associates' Mot. to Dismiss for Improper Venue & Mem. in Supp. [Dkt. # 6]; Def. Mark S. Roseman's Mot. to Dismiss Compl. [Dkt. # 10]; Def. Scott Perlmutter's Mot. to Dismiss Compl. [Dkt. # 16]; Def. Montgomery County, Maryland's Mot. to Dismiss Compl. [Dkt. # 22]; Defs. Judges Salant & McGann's Mot. to Dismiss, or in the Alternative, for Summ. J. [Dkt. # 26].

Because all of the key events and injuries detailed in the complaint occurred in Maryland, venue is not proper in the District of Columbia. Therefore, the Court will dismiss the complaint.

BACKGROUND

Plaintiffs assert thirteen counts against the defendants, most of whom are not state officials: Counts I–IV and VIII allege that defendants contravened 42 U.S.C. § 1983 (2012) by violating plaintiffs' civil rights and procedural and substantive due process rights, as well as the Commerce Clause of the United States Constitution; Count V states that defendants retaliated against plaintiffs for their exercise of their First Amendment rights; Count VI alleges the existence of a conspiracy among defendants to violate plaintiffs' civil rights; Count VII contends that defendants committed “Fraud, Deceit, and Common Law Fraud” against plaintiffs; Count IX alleges that defendants committed conversion and violated the Racketeer Influenced and Corrupt Organizations Act (RICO); Count X states that defendants “never accounted for or paid the value of” the property allegedly taken from plaintiffs; Count XI contends that defendants have been unjustly enriched; and Count XII charges defendants with negligence.⁴ Compl. at 61–78. The final count, Count XIII, seeks a remedy for the allegedly fraudulent transfer of Hope Village. Id. at 78–80.

The event that underlies all thirteen counts of the complaint is the probate of plaintiff Perlmutter's mother's will in Montgomery County, Maryland. See id. at 4–6, 11–13, 18–19, 50, 57–59, 61. After probate closed, plaintiffs filed three separate complaints in Maryland state courts alleging fraud and that the will was forged, and objecting to the Sutton estate's final accounting. See id. at 18, 31, 35, 49, 50. All three complaints were dismissed, and those dismissals were affirmed by the Maryland Court of Special Appeals. See id. at 18, 19, 22, 24; see also Defs. Varone & Raichik's Reply to Opp. to Mot. to Dismiss at 2 [Dkt. # 9]. According to the complaint, defendant Judge McGann issued sanctions against plaintiffs in connection with one of these proceedings. Compl. at 16, 21, 31, 43–44.

In this case, plaintiffs allege the existence of a large-scale conspiracy organized by defendant Trina Varone—who is plaintiff Perlmutter's sister—and the “Varone Family” to deprive Perlmutter of her rightful inheritance. Id. at 3–4; see also Pls.' Combined Resp. in Opp. of Defs. Perlmutter & Roseman's Mot. to Dismiss at 8 [Dkt. # 29] (“The core of the Complaint is that all Defendants ‘committed fraud in a conspiratorial scheme.’ ”). Plaintiff Bolick claims an interest in this case because plaintiff Perlmutter previously assigned him a portion of her anticipated inheritance. Compl. at 4. Plaintiffs contend that the Varones either conspired with or indirectly influenced all of the other defendants, including the two state judge defendants, as well as Montgomery County, Maryland. See id. at 15, 28, 30, 46, 47, 52, 57, 60, 69, 72. Plaintiffs claim that to advance the scheme, the Varones either manipulated Perlmutter's mother into signing a new will that disinherited Perlmutter, or forged a new will entirely. See id. at 11, 22, 33, 37, 48, 43, 51–52, 54. Plaintiffs further claim that the Varones influenced the judges who presided over the proceedings related to the probate and led them to issue wrongful rulings against them.See id. at 5–6. And, according to plaintiffs, the Hope Village halfway house, located in the District of Columbia, is the headquarters of the “Varone crime family” and the base for all of their nefarious operations. Pls.' Resp. and Mem. in Opp. of Defs. Jeffrey & Trina Varone & Raichick's Mot. to Dismiss at 2 [Dkt. # 8] (“Pls.' Resp.”).

Plaintiffs seek a declaration that their rights were violated; money damages of at least $90,000,000; an order creating a “constructive trust” for plaintiff Perlmutter; an order disgorging the “monies, profits, and/or benefits” that have flowed from defendants' alleged conduct; fees; exemplary damages; compensatory damages; consequential damages; special damages; and punitive damages. Compl. at 80–82.

STANDARD OF REVIEW

“ ‘In considering a Rule 12(b)(3) motion, the court accepts the plaintiff's well-pled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff's favor, and resolves any factual conflicts in the plaintiff's favor.’ ” Pendleton v. Mukasey, 552 F.Supp.2d 14, 17 (D.D.C.2008), quoting Darby v. U.S. Dep't of Energy, 231 F.Supp.2d 274, 276–77 (D.D.C.2002). The Court may consider material outside of the pleadings. Artis v. Greenspan, 223 F.Supp.2d 149, 152 (D.D.C.2002). “Because it is the plaintiff's obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper.” Freeman v. Fallin, 254 F.Supp.2d 52, 56 (D.D.C.2003). “Unless there are pertinent factual disputes to resolve, a challenge to venue presents a pure question of law.” Williams v. GEICO Corp., 792 F.Supp.2d 58, 62 (D.D.C.2011).

ANALYSIS

The Court will dismiss the complaint because venue is not proper in the District of Columbia. By statute, civil actions may be brought in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located;

(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) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b)(1)–(3) (2012). Subsections (b)(1) and (b)(3) do not provide a basis for venue in the District of Columbia because nearly all of the defendants are residents of Maryland,⁵ see Compl. at 7–13, and because Maryland—the location of most of the events and injuries alleged in the complaint—is a “district in which [this] action may otherwise be brought.” See 28 U.S.C. § 1391(b)(1), (3).

Plaintiffs appear to argue that venue is proper under subsection (b)(2) because “a substantial part of the acts and omissions relevant to the claim occurred in the District of Columbia.” See Pls.' Resp. at 18. The “substantial part” requirement does not mean that plaintiffs may only bring suit in a district where every event that supports their claims occurred, but plaintiffs must show that a considerable portion of the events took place in their chosen forum. SeeModaressi v. Vedadi, 441 F.Supp.2d 51, 57 (D.D.C.2006) (“Nothing in section 1391(b)(2) mandates that a plaintiff bring suit in the district where the most substantial portion of the relevant events occurred....”). In determining whether the “substantial part” requirement is met, courts should undertake a “commonsense appraisal” of the “events having operative significance in the case.” Lamont v. Haig, 590 F.2d 1124, 1134 & n. 62 (D.C.Cir.1978) (noting that in certain situations, “the forum court should not oppose the plaintiff's choice of venue if the activities that transpired in the forum district were not insubstantial in relation to the totality of events giving rise to the plaintiff's grievance”).

In this case, plaintiffs devote the vast majority of their eighty-two page complaint to voicing their grievances surrounding the probate of the Sutton estate and the related judicial proceedings in Maryland. First, plaintiffs claim that defendant Trina Varone wrongfully “took complete control of” Joan Sutton and the Sutton estate and created a fraudulent will. See, e.g., Compl. at 4 (...