United States District Court, D. New Jersey
JOHN W. FINK, Plaintiff,
J. PHILIP KIRCHNER and FLASTER GREENBERG, P.C., Defendants.
MCNULTY UNITED STATES DISTRICT JUDGE
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.
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
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
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.
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.
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.
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.
The Malpractice Action
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
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.).
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).
15, 2016, defendants then moved to dismiss plaintiffs new
claims and simultaneously moved for summary judgment on other
outstanding fraud claims. (Id. DE 270).
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.).
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) .
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
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.
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.
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).
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. 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.
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
dismissible 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 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 ...