United States District Court, D. Nebraska
BRYAN WHEATLEY, and JANA WHEATLEY, d/b/a TEAM GREEN, Plaintiffs,
VICTOR KIRKLAND, RICHARD BERKSHIRE, FREE POWER COMPANY, INC., and SOLAR PRODUCT SOLUTIONS, LLC, Defendants.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion to Dismiss for
Improper Venue, or in the Alternative, Motion to Transfer
Action (Filing No. 14) submitted by Defendant Victor Kirkland
(“Kirkland”). No party has opposed the Motion,
although Defendant Richard Berkshire
(“Berkshire”), asked the Court first to rule on
his Motion to Dismiss (Filing No. 5) and Motion for
Fed.R.Civ.P. 11 Sanctions (Filing No. 16). (See
Berkshire’s Response to Kirkland’s Motion, Filing
No. 20.) The Court dismissed with prejudice Plaintiffs’
claim against Berkshire based on alleged violations of the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§ 1961, et seq. (“RICO”); dismissed
without prejudice Plaintiffs’ claim against Berkshire
based on alleged fraudulent misrepresentation; and allowed
Plaintiffs to file an amended complaint to reassert their
fraudulent misrepresentation claim with requisite
particularity. (See Memorandum and Order at Filing
filed a First Amended Complaint (Filing No. 23), asserting
five causes of action. The first three causes of action are
against Defendants Kirkland, Free Power Company, Inc.
(“Free Power”), and Solar Product Solutions, LLC
(“SPS”). Those causes of action allege RICO
violations, breach of contract, and fraudulent
misrepresentation, in connection with the performance of a
Construction Services Agreement (the “Agreement,
” Filing No. 23-1) entered into between Plaintiffs and
SPS in March 2012, for the installation of solar power energy
systems in Columbia, Missouri. The fourth and fifth causes of
action allege fraudulent misrepresentation as to Berkshire,
who allegedly acted as Plaintiffs’ attorney from 2013
to 2016, without disclosing conflicts of interest, and led
Plaintiffs to believe the other Defendants would make certain
payments to the Plaintiffs.
Plaintiffs’ claims against Berkshire are not so related
to the claims against other Defendants that they may be said
to “form part of the same case or controversy, ”
permitting the Court to exercise supplemental jurisdiction
under 28 U.S.C. § 1367(a). In other words, the
Plaintiffs’ claims against Berkshire and the claims
against other Defendants do not “arise from a common
nucleus of operative fact.” Myers v. Richland
County, 429 F.3d 740, 746 (8th Cir. 2005) (quoting
United Mine Workers v. Gibbs, 383 U.S. 715, 725
(1966). Nor are they claims one would expect to try in a
single judicial proceeding. OnePoint Solutions, LLC v.
Borchert, 486 F.3d 342, 350 (8th Cir. 2007).
Accordingly, the claims against Berkshire will be dismissed,
without prejudice. The remaining claims against Kirkland,
Free Power, and SPS, will be transferred to the U.S. District
Court for the Western District of Missouri, pursuant to the
Agreement’s choice-of-law provision. (Filing No. 23-1
at 9, ¶ 15.) Because Plaintiffs filed their case
laying venue in the wrong district, and because transfer to
the U.S. District Court for the Western District of Missouri
is in the interest of justice, the action will be transferred
pursuant to 28 U.S.C. § 1406(a).
Court has reviewed Berkshire’s Motion for Fed.R.Civ.P.
11 Sanctions (Filing No. 16), as well as the related briefs
and indexes of evidence (Filing Nos. 17, 18, 24, 25), and
declines to exercise its discretion to impose sanctions
pursuant to Fed.R.Civ.P. 11 (c). Berkshire’s Motion to
Dismiss First Amended Complaint (Filing No. 29) will be
denied as moot.
IT IS ORDERED:
Fourth and Fifth Causes of Action in the Plaintiffs’
First Amended Complaint (Filing No. 23) are dismissed,
Defendant Richard Berkshire’s Motion for Fed.R.Civ.P.
11 Sanctions (Filing No. 16) is denied;
Clerk will remove the name of Defendant Richard Berkshire
from the case caption;
Motion to Dismiss for Improper Venue, or in the Alternative,
Motion to Transfer Action (Filing No. 14) submitted by
Defendant Victor Kirkland is granted;
action is transferred to the U.S. District Court for the
Western District of Missouri, pursuant to 28 U.S.C. §
Defendant Richard Berkshire’s Motion to Dismiss First
Amended Complaint (Filing No. 29) is denied as moot.