Poling v. K. Hovnanian Enterprises
| Decision Date | 24 May 2000 |
| Docket Number | Civil No. 99-431. |
| Citation | 99 F.Supp.2d 502 |
| Parties | J. Clark POLING, et al., Plaintiffs, v. K. HOVNANIAN ENTERPRISES, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
J. Clark Poling, Fellsmere, FL, pro se.
John C. Poling, Boca Raton, FL, pro se.
Albert C. Barclay, Jr., Kingston, NJ, for Florence Winston and pro se.
Albert Barclay, III, N.E. Atlanta, GA, pro se.
Robert A. Berns, Patrick J. Galligan, Wilson, Elser, Mskowitz, Edelman & Dicker, LLP, Newark, NJ, Mary Fran Farley, Harris Beach & Wilcox, Hackensack, NJ, for Convery & Convery.
Edward F. Borden, Jr., Westmont, NJ, for William D. Barclay I, David Barclay, Ellen B. Deblois.
Thomas F. Carroll, Hill Wallack, Princton, NJ, for K. Hovnanian Enterprises, Ara Hovnanian.
Kevin J. Curnin, New York City, for Travelers Indemnity Co.
Matthew V. Delduca, David A. Kotler, Dechert Price & Rhoads, Princeton, NJ, for Mellon Bank, N.A., Dechert Price & Rhoads.
Harry R. Hill, Jr., Trenton, NJ, Craig S. Hilard, Stark & Stark, PC, Princeton, NJ, for Toll Brothers, Inc.
Richard James Kravitz, Fox, Rothschild, O'Brien & Frankel, LLP, Lawrenceville, NJ, for Summit Bancorp.
Elizabeth B. Livingston, Bozeman, MO, pro se.
Daren S. McNally, Connell, Foley & Geiser, Roseland, NJ, for Travelers Indemnity Co.
Jonathan Matthew Preziosi, Jamieson, Moore, Peskin & Spicer, Princeton, NJ, for Thomas C. Jamieson.
Lee B. Reimann, East Lansing, MI, pro se.
Stuart P Schlem, Manalapan, NJ, for Leonard Cohen.
Gregg S. Sodini, Buchanan Ingersoll, P.C., Princeton, NJ, for PNC Bank Corp.
Susan B. Walcott, Princeton, NJ, pro se.
Charles Winston, Atlanta, GA, pro se.
Marion Winston, Raleigh, NC, pro se.
Robert Winston, Raleigh, NC, pro se.
This matter comes before the Court upon motions by defendants Summit Bancorp., PNC Bank Corp., K. Hovnanian Enterprises, Mellon Bank, N.A., Toll Brothers, Inc., Dechert, Price & Rhoads and individual defendants Harry Hill, Esq., Leonard Cohen, Thomas Jamieson, Albert C. Barclay., Jr., Florence Winston, William Barclay, Elizabeth Barclay, Ellen DeBlois, and I. David Barclay to dismiss plaintiffs' complaint in its entirety for failure to plead fraud with particularity, lack of jurisdiction, failure state a claim upon which relief can be granted, failure to join indispensable parties and failure to provide defendants with a short plain statement of the claim showing that the pleader is entitled to relief. See Fed.R.Civ.P. 9(b), 12(b)(1), 12(b)(6), 19(a), 8(a), (e). Also before the Court are plaintiffs' (i) cross-motion for partial summary judgment, (ii) motion to strike the reply brief of Mellon Bank and (iii) motion to strike defendant William S. Barclay's motion to dismiss defendant K. Hovnanian Enterprises' motion for sanctions. This Court has reviewed the extensive submissions of the parties, without oral argument pursuant to Fed. R.Civ.P. 78, and for the reasons stated below, the defendants' motions to dismiss will be granted.1
Plaintiffs, brothers J. Clark Poling and John C. Poling, are grandsons of Isaiah and Gladys Barclay. The gravamen of plaintiffs' Second Amended Complaint is that the 36 defendants named therein have fraudulently and criminally deprived plaintiffs of assets rightfully owed them under the wills of Isaiah and Gladys Barclay. This Court takes judicial notice of the January 13, 1999 Opinion of Hon. Wilkie D. Ferguson, Jr., transferring this case from the United States District Court for the Southern District of Florida to this Court, which sets forth the facts of this case as follows:
On December 13, 1995, an action captioned Barclay v. Albert C. Barclay, Jr., Trustee was filed in the Chancery Division of the Superior Court of New Jersey. The state court action was brought against, inter alia, J. Clark and John Poling, the same plaintiffs as in the instant federal case, seeking partition and sale of the Chamberlain Farm in East Windsor, New Jersey. On November 13, 1996, K. Hovnanian Companies of Central New Jersey, Inc. was joined as a defendant in the New Jersey state court partition action. On February 24, 1997, the partition action was consolidated with an action brought by K. Hovnanian Companies of Central New Jersey, Inc. seeking specific performance of the contract for purchase of the Chamberlain Farm. On September 24, 1998 the New Jersey Superior Court appointed a partition commissioner for the Chamberlain Farm. The commissioner was given plenary authority to manage the property and effect its sale. The court also empowered the commissioner to negotiate a settlement or other resolution to the litigation between the parties.
On September 23, 1998, one day before the state court appointed a partition commissioner, the instant action was filed in the United States District Court for the Southern District of Florida by pro se plaintiffs J. Clark Poling and John Poling. Plaintiffs claim that they are victims of a 30 year embezzlement scheme to deprive them of a larger inheritance under their grandparents' wills, which allegedly began in 1965 by the alleged wrongful termination of a 1946 stock redemption agreement. Additionally, the plaintiffs claim dissatisfaction with the entire probate proceeding, related distribution of property, and the management and sale of assets (principally New Jersey real estate) under the terms of their grandparents' wills and related trusts.2 The real property at issue in this action is the Chamberlain Farm, which is the subject of state court proceedings, and the sole thrust of plaintiffs' complaint, dissatisfaction with their inheritance, is the same as in the state court action.
By Order of January 13, 1999, the instant action was transferred from the United States District Court for the Southern District of Florida to this Court. Plaintiffs filed a Second Amended Complaint on May 3, 1999 (hereinafter the "Complaint"). The seventeen-count Complaint alleges the following federal causes of action: (1) violation of the Racketeer Influenced and Corrupt Organizations Act § 1962(c) and (d) ("RICO") (Count I); (2) civil rights violations under 42 U.S.C. § 1983 (Count III); (3) conspiracy to defraud the United States (Count XIV); (4) violation of the Sherman Anti-trust Act (Count XV); (5) violation of the Securities Exchange Act § 10(b) and Rule 10b-5 (Count XVI); and (6) violation of the Securities Exchange Act 20(a) (Count XVII). Plaintiffs also ask this Court to compel arbitration pursuant to 9 U.S.C. § 4 (Count II). The remaining twelve causes of action are founded upon state law and include, inter alia, causes of action alleging fraud, malpractice, civil conspiracy, defamation, negligent and intentional infliction of emotional distress and tortious interference with prospective economic advantage.
The thirty-six defendants in this action include, inter alia: fellow beneficiaries under the wills of Isaiah and Gladys Barclay; several, but not all, of the trustees and executors (and their successors) under the wills of Isaiah and Gladys Barclay; several, but not all, of plaintiffs' fellow Barclays Brothers and Barclays Farm partners, including various Barclay family estates; K. Hovnanian Enterprises, Inc., the purported purchaser of the Chamberlin Farm, which is allegedly owned by the plaintiffs and several of the defendants as tenants-in-common; Leonard Cohen, plaintiffs' real estate broker in connection with the sale of the Chamberlin Farm; Thomas C. Jamison, the court-appointed partition commissioner in the New Jersey state court proceedings; Toll Brothers, Inc., a company which was engaged in construction and granted an easement in 1984 with respect to the Chamberlin Farm; several attorneys and law firms that allegedly represented either the plaintiffs or various defendants over the course of the last thirty years; two insurance companies; the New Jersey Department of Transportation and the East Windsor Township.
Several of the defendants have moved to dismiss plaintiffs' complaint pursuant to Fed.R.Civ.P. 9(b) for failure to plead fraud with particularity, Fed. R.Civ.P. 12(b)(1) for lack of jurisdiction, Fed.R.Civ.P. 12(b)(6) for failure to state a cause of action upon which relief can be granted, Fed.R.Civ.P. 19(a) for failure to join necessary parties to this action and Fed.R.Civ.P. 8(a) and (e) for failure to provide defendants with a short plain statement of the claim showing that the pleader is entitled to relief. Given the plaintiffs' pro se status, and affording every possible consideration to their 436 paragraph, 111 page complaint, this Court painstakingly reviewed the extensive submissions of the parties to discern whether plaintiffs made out even a single cognizable federal claim against a single defendant.3 They have not. This Court having concluded that plaintiffs have failed to plead fraud with the requisite particularity, have failed to state a federal claim upon which relief can be granted, and it appearing that no diversity jurisdiction exists here as to those claims premised upon state law, plaintiffs' complaint is dismissed in its entirety. The viable aspects of this dispute, if any, are already where they belong: in the New Jersey Superior Court. That is where plaintiffs can obtain and are being given a full and fair airing of all their grievances.
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if the plaintiff's claims are based upon those documents. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993), cert. denied, 510 U.S. 1042, 114 S.Ct. 687, ...
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