United States District Court, D. New Jersey
JOHN W. FINK,, Plaintiff,
UNITED STATES OF AMERICA, J. PHILIP KIRCHNER and FLASTER/GREENBERG P.C., Defendants.
MCNULTY, UNITED STATES DISTRICT JUDGE
clerk referred this case to me for review pursuant to D.N.J.
Loc. Civ. R. 41(g). That Local Rule essentially requires that,
where a sitting judge has been sued, a second judge in a
separate vicinage shall review the allegations. If judicial
immunity is a complete defense or the allegations are found
to be patently frivolous, then the action shall be dismissed
against the original judge. In such a case, there is no need
for recusal or for referral of the case to a separate
plaintiff, John W. Fink, pro se, filed a legal
malpractice case against his prior attorneys, defendants J.
Philip Kirchner and Flaster/Greenberg P.C. That case was
heard by the Hon. Noel L. Hillman, a district judge of this
court. Fink v. Kirchner, Civ. No. 12-4125-NLH-KMW
(the "Malpractice Action"). Judge Hillman granted
summary judgment for the defendants. (12cv4125 DE). Mr. Fink
appealed; the U.S. Court of Appeals for the Third Circuit
affirmed, see 731 Fed.Appx. 157 (3d Cir. 2018); and
the U.S. Supreme Court denied certiorari.
Fink has now filed the above-captioned action. The caption of
the Complaint names as defendants J. Philip Kirchner and
Flaster/Greenberg P.C, who are also named as the defendants
in the initial paragraph of the Complaint. Those defendants
have filed a motion to dismiss. (DE 3)
body of the Complaint, however, appears to be directed at
Judge Hillman, as well as the three judges of the United
States Court of Appeals for the Third Circuit who were
assigned to Mr. Fink's unsuccessful appeal.
(a) Count I, entitled "Judge Hillman committed a fraud
upon the Court," alleges that Judge Hillman committed
fraud when he rendered various judicial decisions unfavorable
to plaintiff in the Malpractice Action.
(b) Count II, entitled "CA Judges committed a fraud upon
the Court," alleges that three Judges of the U.S. Court
of Appeals for the Third Circuit, Hon. Patty Shwartz, Hon.
Cheryl Ann Krause, and Hon. D. Michael Fisher, committed
fraud when they affirmed Judge Hillman's grant of summary
judgment for defendants.
Complaint demands the following relief:
a) Reversal of the summary judgment decisions granted to the
b) Remand of the [the Malpractice Action] to the District
Court for trial;
c) Grant Fink permission to use the entire investigator's
report, but if not that, then at least the Kirchner May
20th Letter; and
d) Any other relief this court deems equitable and just under
Clerk considered this pleading, although confusing, to be
tantamount to an action against District Judge Hillman, and
therefore randomly referred it to me pursuant to Loc. Civ. R.
41(g). I remained unclear as to what was intended, however.
April 26, 2019, I therefore filed an Order (DE 6) that by May
15, 2019, the plaintiff, John W. Fink, shall "SHOW CAUSE
1. Stating and clarifying whom he intends to name as
defendants in the complaint;
2. Stating why this action should not be dismissed by filing
a brief in opposition to the motion to dismiss filed by
defendants Kirchner and Flaster/Greenberg P.C.;
3. Stating why the claims against Judge Hillman and the Third
Circuit judges (assuming that is what is intended) are not
barred by judicial or sovereign immunity, or otherwise
dismissable for failure to state a claim that is not patently
frivolous. See D.N.J. Loc, Civ. R. 41(g)."
Fink responded by filing an "Amended Complaint."
("AC", DE 7) As regards the four judicial officers,
it is similar to the original complaint, except that it adds
the United States of America as a defendant. By way of
explanation, the introduction to die Amended Complaint states
that "[t]his is an action filed against the United
States for the judicial fraud on the court committed by its
employees [listing Judges Hillman, Shwartz, Krause, and
Smith]." (AC ¶ 1) In the two substantive counts,
the initial reference to each of the judges is now followed
by "an employee of the United States" or
"employees of the United States." (See AC Count I
¶ 2, Count II ¶ 16.)
Amended Complaint adds claims for compensatory and punitive
damages. The demands for reversal of summary judgment,
admission of certain exhibits, and trial of the matter are
now phrased solely as alternative relief in ...