Perlmutter v. Varone , 59 F. Supp. 3d 107 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DAWN PERLMUTTER, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 13-1872 (ABJ)
)
TRINA AND JEFFREY VARONE, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
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 7–9 1 [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
1 For the sake of consistency, the Court will cite to page numbers in the complaint, as
paragraph numbers are not always available.
2 Defendants object that “Hope Village” is not a proper party, and that “Hope Village,
Inc.,” the entity that would be proper, is not named in the complaint. Defs. Varone & Raichik’s
Mot. to Dismiss for Improper Venue & Mem. in Supp. at 2 [Dkt. # 2]. But because plaintiffs
proceed pro se, the Court will “take particular care to construe the plaintiff[s’] filings liberally,”
and will hold the complaint “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Cheeks v. Fort Myer Constr. Co., 722 F. Supp. 2d 93, 107 (D.D.C. 2010), quoting
Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam).
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
3 Several defendants also assert additional grounds for dismissal, but the Court need not
reach those arguments as it finds that venue is not proper in the District of Columbia.
2
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
4 The Court also notes that two of the defendants, Judge McGann and Judge Salant, are
judges and therefore absolutely immune from civil liability for judicial acts taken in an official
capacity. See Mireles v. Waco, 502 U.S. 9, 11–12 (1991) (per curiam); Sindram v. Suda, 986
F.2d 1459, 1460 (D.C. Cir. 1993) (per curiam).
3
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
4
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
5 According to the complaint, the only defendants who do not reside in Maryland are Mark
S. Roseman, who lives in Pennsylvania, and defendant in rem Hope Village, which is located in
the District of Columbia. Compl. at 2, 7–8.
5
forum. See Modaressi 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 (alleging that defendant Trina Varone – plaintiff Perlmutter’s sister – embezzled
money from Sutton “for many years” before she “took complete control of her mother by
conspiring with other defendants to change by forgery all of Joan’s legal documents including
the medical power of attorney; last will testament; business trust and inter alia real estate and
bank accounts”); id. at 43 (“The evidence will overwhelmingly demonstrate that Varone . . .
arranged for the will in secret and then instructed her lawyers subordinates to act as bogus
‘witnesses’ to the alleged signature.”); id. at 48 (alleging that “Trina [Varone] covet[ed] not only
all of the money but to assume the role of her mother and project to the world that she was the
successful child schemed with others to defraud” Joan Sutton and plaintiff Perlmutter); id. at 49
(alleging that Trina Varone “unlawfully intimidated, threatened, coerced and retaliated against
[Joan Sutton] by denying her medical care and forcing her to live in constant fear,” and “took
6
control of Joan and all the companies . . . [and] cut [plaintiff Perlmutter] off from all income and
schemed to put her in a financial bind”); id. at 54 (“Trina Varone caused the murder of her
Mother Joan D. Sutton as part of her scheme to defraud Dawn Perlmutter.”).
Plaintiffs further allege that the Maryland courts, and defendants Judge Salant and Judge
McGann in particular, denied them fair proceedings related to the probate of Sutton’s estate.
See, e.g., id. at 4 (challenging jurisdiction of Maryland Orphans’ Court); id. at 5 (stating the
defendant judges acted outside of their authority “by issuing orders that simply defy reality”); id.
at 13–15 (alleging that defendant Judge Salant deprived plaintiffs of fair proceedings and due
process and “invented” rules “to favor the Varone Family”); id. at 17–21 (describing allegedly
unfair judicial proceedings); id. at 22–28 (describing the allegedly unfair treatment of plaintiffs’
claims on appeal and stating that the claims were dismissed as part of a “purposeful effort to
distort and deceive”); id. at 43 (alleging defendant Judge McGann used “‘procedures’ that were
not fair, general, or reasonable, and were thus substantively arbitrary”); id. at 44–47 (alleging
“bias and prejudice” on the part of another appellate panel); id. at 58 (stating that “[d]uring the
course of the litigation in Montgomery County . . . [d]efendant Judge Salant adopted the
proposed order prepared by [d]efendant Varone that order the [p]laintiffs[’] rights be violated”);
id. at 59 (alleging that “[t]he conduct and procedures used by the [Maryland] Court of Special
Appeals in dealing with this case and arriving at an opinion are ‘shocking’ and egregious”). In
making these claims, plaintiffs repeat significant portions of what appear to be the pleadings they
filed in Maryland courts in the text of the complaint. See id. at 18–20, 31–42.
In addition, plaintiffs contend that defendants Jeffrey and Trina Varone induced the
defendant Maryland state judges into depriving them of their rightful share of Sutton’s estate
through fraud. See, e.g., id. at 5; id. at 11 (“Defendant Trina Varone initiated a scheme to . . .
7
perpetrate a fraud by invoking the jurisdiction of the [Maryland] orphans court for a court order
to grant her control over real property and personal property that did not belong to her.”); id. at
12 (“Defendants sought to have [d]efendant Salant to serve as Judge for the orphans court of
Montgomery County, Maryland knowing that Varone had donated significant sums of money
through religious associations with direct ties to Rabbe Raichik with direct ties to [d]efendant
Judge Salant); id. at 50 (“Defendant, Trina Varone caused a fraudulent Will . . . and other
documents . . . to be admitted to probate by the Court . . . .”); id. at 54 (same); id. at 59 (alleging
that “[d]efendants’ attorney has judges influencing legal actions” in Montgomery County
courts); id. at 60 (“The Varone Family have abused the court system to obtain orders affecting
[p]laintiffs’ substantial rights all based on technicalities.”).
And plaintiffs claim that all of the defendants conspired together to obstruct plaintiffs’
access to justice in Maryland and to “deny [p]laintiffs[’] important rights including the right to
contract and access to the court.” Id. at 11; see also id. at 5–6 (alleging that defendants “worked
to keep Perlmutter and Bolick from access to the court and from an impartial and disinterested
tribunal”); id. at 11 (alleging all defendants conspired to deprive plaintiffs of their share of the
Sutton estate); id. at 12 (“Defendants’ scheme perpetrated a Fraud upon the [p]laintiffs and the
courts that means extrinsic fraud, that is, fraud that actually prevents an adversarial trial.”); id. at
16 (alleging that, after plaintiffs secured the recusal of defendant Judge Salant, the Varone-led
conspiracy caused defendant Judge McGann to be appointed presiding judge); id. at 28–31
(restating allegation of conspiracy); id. at 46–47 (same); id. at 56 (“Defendants have induced
severe financial hardship upon, and injured, oppressed, threatened, instructed, obstructed, and/or
8
intimidated [p]laintiffs.”); id. at 57 (“On numerous occasions, the Varone family confederates
have stalked and harassed petitioners.”). 6
Only a few pages of the complaint even touch upon events alleged to have occurred in the
District of Columbia, and these allegations do not constitute the “substantial part” of plaintiffs’
claims needed to establish venue under 28 U.S.C. § 1391(b)(2). For instance, plaintiffs make the
broad assertion that “[d]efendants have a principal place of business; function as entities within;
and . . . [that] significant events giving rise to the complaint occurred within the District of
Columbia.” Compl. at 7. But at the same time, the complaint also expressly specifies that
almost all of the defendants reside and do business in Maryland or Pennsylvania. See id. at 7–9.
As to the other defendants, plaintiffs claim that Trina and Jeffrey Varone have carried on
illegal activity at their purported “headquarters” in the District of Columbia, including:
“‘dummy’ type corporations, illegal cooks, housekeepers, and labor used for the private interests
of the Varone family and paid for on the books of the legitimate Hope Village.” Id. at 50. But
these conclusory allegations, even if taken as true, do not concern events having any “operative
significance” to the harms alleged in the complaint. See Lamont, 590 F.2d at 1134. And
plaintiffs’ statement in a pleading that the Varones directed communication to them from the
District of Columbia, see Pls.’ Resp. at 4, is too “insubstantial” to create venue under subsection
(b)(2). See Lamont, 590 F.2d at 1134 n.62.
In addition, although defendant in rem Hope Village is located in the District of
Columbia, it is not “a substantial part of the property that is the subject of the action” for
purposes of establishing venue in this district. See 28 U.S.C. § 1391(b)(2). The property at the
center of this case is the estate of plaintiff Perlmutter’s mother, which by all indications was
6 The role of defendants John and Jane Does 1–10 in the conspiracy is not clear from the
complaint.
9
located in Montgomery County, Maryland. Given that most of plaintiffs’ allegations relate to the
alleged conspiracy and defendants’ conduct in Maryland court and probate proceedings, and
given that plaintiffs also seek “assets from bank accounts, jewelry, real estate, etc.” from the
estate of Ms. Sutton, see Compl. at 73, the Court cannot conclude that the single property of
Hope Village constitutes “the subject of the action” for purposes of subsection (b)(2).
Thus, none of the requirements of section 1391(b) is met in this case, and so the Court
will dismiss the complaint. See 28 U.S.C. § 1406(a) (“The district court of a district in which is
filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest
of justice, transfer such case to any district or division in which it could have been brought.”).
While “[t]he court must afford some deference to the plaintiff’s choice of forum . . . this
deference is mitigated where the plaintiff’s choice of forum has ‘no meaningful ties to the
controversy and no particular interest in the parties or subject matter.’” Trout Unlimited v. U.S.
Dep’t of Agric., 944 F. Supp. 13, 17 (D.D.C. 1996) (internal citation omitted), quoting Chung v.
Chrysler Corp., 903 F. Supp. 160, 165 (D.D.C. 1995). Moreover, “[t]he decision whether a
transfer or a dismissal is in the interest of justice . . . rests within the sound discretion of the
district court.” Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983).
Here, the District of Columbia has only a minimal interest in these claims, as they arise
from the probate of an estate in Maryland and related judicial proceedings in Maryland state
court. The fact that the decedent owned some property in the District of Columbia is not enough
to establish venue here under these circumstances. Therefore, the Court will grant defendants’
motions and dismiss the case.
10