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Fink v. Kirchner

United States District Court, D. New Jersey

January 8, 2020

JOHN W. FINK, Plaintiff,
v.
J. PHILIP KIRCHNER and FLASTER GREENBERG, P.C., Defendants.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE

         Pending before the court is the motion to dismiss the complaint filed by defendants J. Philip Kirchner and Flaster Greenberg, P.C., pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 18). Defendants assert that this litigation was already resolved by a final judgment on the merits and is therefore barred under res judicata and the entire controversy doctrine. Defendants also assert that the amended complaint fails to allege fraud. Finally, defendants move for an order barring plaintiff from filing any further complaints against them absent a court order.

         The pro se plaintiff, John Fink, opposes that motion (DE 23) and alternatively cross-moves to reopen two orders from a prior litigation; (DE 25). He also cross-moves for a stay of the resolution of defendants' motion to dismiss so that this Court can first decide his motion to reopen the prior litigation. (Id.).

         For the reasons outlined below, defendants' motion to dismiss (DE 18) is granted with prejudice. Defendants' motion to bar plaintiff from filing any additional complaints absent court approval is denied. Plaintiffs cross-motions (DE 25) are denied.

         I. Background [1]

         The issues presented by Mr. Fink have been pending in a series of related actions since 2012. Therefore, a brief summary of the relevant procedural history is necessary.

         a. Factual Background

         The facts of this case are well documented by Judge Hillman and the Third Circuit and have been the subject of several lawsuits. Because I write for the parties, I will summarize the pertinent facts only briefly.

         In 2001, Mr. Fink provided a loan of approximately $835, 000 to a company called Advanced Logic Systems, Inc. ("ALSP). (AC ¶¶ 14-15). Mr. Fink contends that ALSI then breached the terms of that loan, forcing him to initiate litigation to recover damages. (Id. ¶¶ 20-21). Defendants here, Kirchner and his firm, Flaster Greenberg, P.C., are the attorneys who were hired by Mr. Fink to settle that litigation. (Id. ¶ 23). When ALSI breached the settlement agreement, defendants represented Mr. Fink in the ensuing litigation, (Id. ¶ 27-37).[2]

         Mr. Fink asserts that the defendants, his attorneys, sabotaged that litigation by providing faulty advice, fabricating a document, and mishandling an arbitration. (AC p. 7-14). Mr. Fink also alleges that defendants attempted to extort money from him for outstanding legal bills. (AC p. 15-16). All of this alleged behavior was the basis for Mr. Fink's filing a federal court action against these defendants in 2012.

         b. The Malpractice Action

         On July 6, 2012, Mr. Fink, pro se, filed a legal malpractice action against his former attorneys, 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").

         On April 5, 2016, Judge Hillman issued an opinion and order granting in part and denying in part defendants' motion for summary judgment. (Malpractice Action DE 216). In that opinion and order, Judge Hillman granted summary judgment dismissing plaintiffs legal malpractice claims, but denied summary judgment as to the remaining breach of fiduciary duty and fraud claims. (Id.) Because discovery was ongoing, Judge Hillman denied summary judgment with respect to the fiduciary and fraud claims without prejudice, so that they could later be considered in the context of a full factual record. (Id.).

         At the close of discovery, defendants refiled their motion for summary judgment to dismiss the remaining claims pending against them. (Id. DE 223). While this summary judgment motion was pending, on June 6, 2016, Mr. Fink was granted leave to file an amended complaint. (Id. DE 249). On June 20, 2016, Mr. Fink filed his second amended complaint, which added spoliation-related claims. (Id. DE 261).

         On July 15, 2016, defendants then moved to dismiss plaintiffs new claims and simultaneously moved for summary judgment on other outstanding fraud claims. (Id. DE 270).

         On December 20, 2016, Judge Hillman issued another opinion that resolved several pending motions, including (1) Mr. Fink's motion for reconsideration (DE 225); (2) defendants' second summary judgment motion (DE 223); and (3) defendants' July motion to dismiss and motion for summary judgment (DE 270). (Malpractice Action at ¶ 301). Judge Hillman reconsidered his dismissal of Mr. Fink's legal malpractice claim, but affirmed his prior dismissal of the claim. (Id.). Judge Hillman also dismissed Mr. Fink's remaining claims as to the fraud, breach of fiduciary duty, and spoliation claims for failure to prove causation. (Id.).

         On January 19, 2017, Mr. Fink appealed Judge Hillman's December 20, 2016 opinion and order to the U.S. Court of Appeals for the Third Circuit. (Id. at DE 311) .

         Six days later he also filed a motion for reconsideration of that order and opinion in district court. (Id. at DE 316). On February 3, 2017, the Third Circuit stayed Mr. Fink's notice of appeal pending Judge Hillman's resolution of the motion for reconsideration. (Id. at DE 319). On July 25, 2016, Judge Hillman denied Mr. Fink's motion for reconsideration. (Id. at DE 326).

         On May 1, 2018, the U.S. Court of Appeals for the Third Circuit affirmed Judge Hillman's final decision. Mr. Fink, the Court of Appeals held, "failed to put forth sufficient evidence to allow a jury to reasonably find the requisite causal link between Defendants' alleged conduct and his alleged harm, [and therefore] the District Court did not err in granting summary judgment against him." 731 Fed.Appx. 157 (3d Cir. 2018). On June 13, 2018, Mr. Fink filed a petition for rehearing, which was denied on June 25, 2018. On September 20, 2019, Mr, Fink filed a petition for writ of certiorari with the U.S. Supreme Court. That petition was denied on December 2, 2018, and a subsequent petition for rehearing was denied on February 19, 2019.

         As the above sampling of proceedings in the Malpractice Action makes clear, over the course of six years Mr. Fink's case against defendants was exhaustively litigated, going through three levels of review: (1) a New Jersey district court; (2) the Third Circuit; and (3) the U.S. Supreme Court. Nevertheless, that is not the end of the story.

         c. This Action

         On April 3, 2019, Mr. Fink filed this action. (DE 1). The caption of this Complaint, like the Malpractice Action complaint, named as defendants J. Philip Kirchner and Piaster Greenberg, P.C. The initial paragraph of the Complaint, however, also named as defendants Judge Noel Hillman and the three judges of the United States Court of Appeals for the Third Circuit who decided Mr. Fink's unsuccessful appeal: Judge Patty Shwartz, Judge Cheryl Ann Krause, and Judge Michael Fisher. The body of the Complaint also appeared to be directed at these four judges:

(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 [Court of Appeals] Judges committed a fraud upon the Court," alleges that the three Judges of the U.S. Court of Appeals for the Third Circuit committed fraud when they affirmed Judge Hillman's grant of summary judgment for defendants.

See (DE 1). On April 17, 2019, defendants moved to dismiss this Complaint. (DE 3).

         The clerk referred this case to me for review pursuant to D.N.J. Loc. Civ. R. 41(g).[3] 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. The 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.

         On April 26, 2019, I therefore filed an Order (DE 6) that by May 15, 2019, the plaintiff, John W. Fink, shall "SHOW CAUSE IN WRITING

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 dismissible for failure to state a claim that is not patently frivolous. See D.N.J. Loc. Civ. R. 41(g)."

         Mr. Fink responded by filing an Amended Complaint (AC, DE 7). As regards the four judicial officers, it was similar to the original complaint, except that it added the United States of America as a defendant. By way of explanation, the introduction to the 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 was amended to add that each is "an employee of the United States" or that they collectively are "employees of the United States." (See AC Count I ...


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