FINK v. KIRCHNER et al

Filing 301

OPINION FILED. Signed by Judge Noel L. Hillman on 12/20/16. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOHN W. FINK,

Civil Action No. 12-4125
(NLH)(KMW)
Plaintiff,
OPINION

v.
J. PHILIP KIRCHNER, and
FLASTER/GREENBERG P.C.,
Defendants.

APPEARANCES:
JOHN W. FINK
6812 YELLOWSTONE BLVD.
APT. 2V
FOREST HILLS, NY 11375
Appearing pro se
ADAM JEFFREY ADRIGNOLO
ANTHONY LONGO
CHRISTOPHER J. CAREY
WILLIAM DOBBINS TULLY, JR.
GRAHAM CURTIN, PA
4 HEADQUARTERS PLAZA
PO BOX 1991
MORRISTOWN, NJ 07962
On behalf of defendants
HILLMAN, District Judge
This case is related to three other actions filed by
plaintiff, John Fink, all of which concern Fink’s loan to
Advanced Logic Systems, Inc. (“ALSI”) in 2001.

Those other

cases were resolved in the defendants’ favor, and the decisions

were affirmed on appeal. 1

The current matter concerns Fink’s

claims against his lawyer, defendant J. Philip Kirchner, and
Kirchner’s law firm, Flaster/Greenberg P.C., arising out of
Kirchner’s representation of Fink in 2006-08 on Fink’s claims
against ALSI that it breached its settlement agreement with
Fink.
Fink claims that Kirchner lied to Fink that the judge
presiding over Fink’s state court suit to enforce the settlement
agreement with ALSI told the parties to go to arbitration
instead of litigating in court.

Fink also claims that Kirchner

altered an email submitted to the arbitrator presiding over an
arbitration between Fink and ALSI, and that the arbitrator’s
decision was unfavorable to Fink as a result.

The altered email

incident also led to a New Jersey Disciplinary Review Board
ethics complaint against Kirchner, in which Fink participated.
Fink also claims that the arbitrator’s decision revealed to
him that defendants were not working in Fink’s best interests,
but instead defendants were acting in the interests of the firm
to maximize billing.

Relatedly, Fink claims that in defendants’

attempts to collect payment for their legal fees - totaling over

1

Fink v. EdgeLink, Civ. A. No. 09-5078 (D.N.J.); In re Advanced
Logic Systems, Inc., Civ. A. No. 12-4479 (D.N.J.); Fink v.
Bishop, Civ. A. No. 13-3370 (D.N.J.).
2

$650,000 - Kirchner tried to extort money from him.

Fink claims

that when Kirchner was subpoenaed to testify in a case where
Fink was suing another law firm over its bills, Kirchner stated
that he would only testify on Fink’s behalf if Fink paid his
outstanding bill to Flaster/Greenberg.

Based on these

allegations, Fink claims in his original complaint that
defendants have committed legal malpractice and fraud, and
breached their fiduciary duty to him.
In April 2016, this Court resolved defendants’ first motion
for summary judgment, which Fink opposed because discovery had
not yet been completed.

The Court granted summary judgment in

defendants’ favor on Fink’s legal malpractice claims, finding
that no amount of discovery would provide facts to dispute the
arbitrator’s own words that the altered email had no impact on
his decision.

The Court also found that ALSI’s bankruptcy, as

well as Fink’s three failed lawsuits to recoup money from ALSI
or its purported successors and related parties, all demonstrate
that even if Fink received the arbitration decision he desired,
he would not have been able to collect on that arbitration
award.
The Court denied without prejudice defendants’ motion for
summary judgment as to Fink’s fraud and breach of fiduciary duty
claims, and permitted defendants to refile their motion after
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the close of discovery, which was only a few weeks away.

After

discovery was completed, Fink was granted leave to file a second
amended complaint, which added claims for concealment of
evidence and tampering of evidence relating to the altered
email.
Several motions are currently pending before the Court,
including Fink’s motion for reconsideration of the Court’s
decision on his legal malpractice claim [225], and defendants’
motions for summary judgment as to the other claims in Fink’s
complaint [223, 270]. 2

For the reasons expressed below, the

2

Prior to Fink filing a second amended complaint, defendants had
re-filed their motion for summary judgment that had been denied
without prejudice pending completion of discovery. Fink then
filed his second amended complaint to add spoliation-type
claims, after which defendants moved to dismiss, or obtain
summary judgment, on those claims as well. In response, Fink
filed a motion [266] asking the Court to direct defendants to
answer his second amended complaint, and stay decision on
defendants’ second motion until all briefing was completed on
defendants’ third motion. Fink has voluntarily withdrawn this
motion, ostensibly because it became moot.
Also pending is Fink’s motion [278] seeking permission to use
Kirchner's May 20, 2011 letter to the New Jersey District IV
Ethics Committee investigator, as well as the entire
investigator's report which contains the Kirchner letter, in his
oppositions to defendants’ motions. Defendants have opposed
this motion on the basis of privilege and relevancy. The Court
will grant Fink’s motion nunc pro tunc as to his reference to
the existence of these documents, but deny his motion as to
their substance, primarily because the Court finds them
irrelevant to resolution of Fink’s claims based on his failure
to establish the causation element for each of his claims.
4

Court will grant Fink’s motion to reconsider its decision to
grant summary judgment in favor of defendants on his legal
malpractice claim, but after reconsideration, the decision will
stand.

The Court will also grant defendants’ motions for

summary judgment in their favor on all other claims in Fink’s
complaint.
DISCUSSION
A.

Jurisdiction

This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1332 because there is complete diversity of citizenship
between the parties and the amount in controversy exceeds
$75,000.
B.

Standard for Summary Judgment

Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.

Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
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party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp.

Once the moving party has

met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a
genuine issue for trial.

Id.

Thus, to withstand a properly

supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence that contradict
those offered by the moving party.
57.

Anderson, 477 U.S. at 256-

A party opposing summary judgment must do more than just

rest upon mere allegations, general denials, or vague
statements.

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

2001).
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C.

Analysis

The Court has noted in its Opinions in Fink’s other cases
that have arisen out of his relationship with ALSI that it is
evident Fink feels he has been continuously victimized by the
players involved with the ALSI deal and his attorneys who have
represented him.

The Court does not doubt Fink’s emphatic

belief of the wrongs he has suffered, and the Court recognizes
his avid advocacy on his behalf.

The pervasive problem with

Fink’s allegations in all of his cases, however, is that they
have been entirely speculative.

Similarly, in this case, even

if the Court were to accept all of Fink’s propositions as true,
gaping holes exist as to causation for his alleged damages.
Fink’s claims against Kirchner center on three events:

(1)

Kirchner’s alleged lie to Fink that the judge presiding over
Fink’s state court suit to enforce the settlement agreement with
ALSI told the parties to go to arbitration instead of litigating
in court; (2) Kirchner’s alleged alteration to an email
presented to the arbitrator and his alleged lies about his
involvement; and (3) these two lies caused Fink to lose his
claims against ALSI, thwart another settlement with ALSI, and
were intended to milk Fink for unnecessary and exorbitant
attorney’s fees.

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An essential element of Fink’s legal malpractice 3, breach of
fiduciary duty 4, fraud 5, and fraudulent concealment and
spoliation 6 claims is causation – that the alleged harms caused
Fink his damages.

Fink has not demonstrated that he can meet

this essential element for any of his claims.
According to Fink, he chose to discontinue his state court
suit to enforce the settlement with ALSI in favor of binding

3

Only where the attorney breaches his duty is he answerable in
damages for losses which are proximately caused by his
negligence. Lamb v. Barbour, 455 A.2d 1122, 1125 (N.J. Super.
Ct. App. Div. 1982), cert. denied, 93 N.J. 297 (1983) (citations
omitted).
4

A fiduciary is liable for harm resulting from a breach of the
duties imposed by the existence of such a relationship.
McKelvey v. Pierce, 800 A.2d 840, 859 (N.J. 2002) (citations
omitted).
5

The five elements of common law fraud are: (1) a material
misrepresentation of a presently existing or past fact; (2)
knowledge or belief by the defendant of its falsity; (3) an
intention that the other person rely on it; (4) reasonable
reliance thereon by the other person; and (5) resulting damages.
Gennari v. Weichert Co. Realtors, 691 A.2d 350, 367 (N.J. 1997).
6

The tort of fraudulent concealment may be invoked as a remedy
for spoliation where the following elements exist: (1) That the
defendant in the fraudulent concealment action had a legal
obligation to disclose evidence in connection with an existing
or pending litigation; (2) That the evidence was material to the
litigation; (3) That plaintiff could not reasonably have
obtained access to the evidence from another source; (4) That
defendant intentionally withheld, altered or destroyed the
evidence with purpose to disrupt the litigation; and (5) That
plaintiff was damaged in the underlying action by having to rely
on an evidential record that did not contain the evidence
defendant concealed. Rosenblit v. Zimmerman, 766 A.2d 749, 758
(N.J. 2001).
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arbitration because Kirchner told him that the state court judge
presiding over his state court action strongly suggested that
the matter should be resolved in mediation or arbitration.

Fink

contends that the state court judge never suggested that Fink
should consider an alternative dispute resolution, and that
Kirchner lied that it was the state court judge’s direction,
because Kirchner knew that Fink would not agree to arbitration
otherwise.

Fink claims that this lie cost him hundreds of

thousands more in attorney’s fees due to the redundancy of what
had already been accomplished in the state court action.
Fink also claims that concurrent with this state court
suit, he was engaging in settlement negotiations with ALSI,
which had not yet filed for bankruptcy and was worth $58 million
dollars.

When Kirchner submitted the altered email to the

arbitrator, Fink claims that ALSI was still solvent.

But, when

the arbitrator noted the altered email during the arbitration
proceedings, Fink claims that he lost credibility with the
arbitrator, and it also destroyed his settlement talks with ALSI
because ALSI saw this development as a benefit to its opposition
to Fink’s claims.

Soon thereafter ALSI filed for bankruptcy,

causing Fink to lose any hope of obtaining any additional
settlement money from ALSI.
Fink further contends that Kirchner’s lie about the state
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court judge’s suggestion that Fink’s case should be arbitrated
is proved by billing records that do not corroborate Kirchner’s
statements that the judge spoke with the parties’ attorneys in
her robing room during Fink’s two days of testimony.

Fink also

contends that secretly tape-recorded conversations between Fink
and Kirchner proves that Kirchner intentionally altered the
email, rather than it simply being a clerical error as Kirchner
claimed to the arbitrator.
Fink claims that Kirchner’s first lie is legal malpractice
that set off a series of events that damaged him, including
unnecessary attorney’s fees and the loss of a settlement with
ALSI.

Fink further claims that Kirchner’s second lie destroyed

his credibility in the arbitration, resulting in the loss of
another settlement attempt with ALSI, as well as an unfavorable
decision by the arbitrator.
Even if the Court accepts as true that Kirchner lied about
the impetus for arbitration and altered an email submitted to
arbitration, Fink’s claimed damages as a result of Kirchner’s
actions are too attenuated to be directly linked.
Fink states that he accepted Kirchner’s advice to proceed
with arbitration because he did not want to inflame the judge,
and because Kirchner represented that arbitration would be less
costly.

Even if the judge had not suggested arbitration, there
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is no evidence that Kirchner purposely advised that Fink go to
arbitration so that he could generate excessive attorney’s fees.
It is unknown how costly Fink’s state court proceeding could
have become had he declined Kirchner’s advice, and there are no
guarantees about how less costly an arbitration may be.
At the same time, there are numerous unknown variables as
to why Fink’s settlement talks with ALSI stalled.

Simply

because ALSI may have had a valuation of $58 million does not
ensure that whichever path Fink ultimately chose – state court,
arbitration, or settlement – it would have resulted in a check
in Fink’s hand.

Indeed, Fink had instituted the state court

action because ALSI had allegedly breached a prior settlement
with Fink and failed to pay him all of the agreed-upon
settlement amount.
With regard to the arbitration, even accepting as true that
Kirchner intentionally altered the email, as the Court found in
its prior Opinion, that fact did not affect the arbitrator’s
decision – as confirmed by the arbitrator himself.

To the

extent that Fink claims that the altered email also blew up any
settlement with ALSI while it still remained solvent, that
premise fails for the same reason as the settlement talks during
the state court proceedings.
In short, even if Kirchner lied about the judge’s
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suggestion that Fink should arbitrate his claims, 7 and even if
Kirchner submitted an altered document to the arbitrator, 8 Fink
has not shown how those actions caused him to pay more legal
fees than he otherwise would have incurred, or caused his

7

Fink’s proofs in this regard are threadbare. The two attorneys
involved in the state court action to enforce Fink’s purported
settlement agreement with ALSI – Kirchner and ALSI’s counsel –
both testified that the state court judge recommended
arbitration instead of continuing the state court action. That
Kircher’s billing records do not specifically identify that
conversation, or that Kirchner cannot now recall the exact time
that conversation took place in May 2007, does not prove Fink’s
belief that Kirchner lied about the judge’s recommendation.
Fink takes issue with the fact that the transcripts of the court
hearings do not include the judge’s request to meet with counsel
in her robing room, and that 25 minutes is insufficient to
support Kirchner’s billing records that provide for “rest of the
day” settlement talks and a conference with the judge. These
contentions are unpersuasive. Transcripts often do not record
off-the-record comments by a judge or the parties, including the
judge’s request to hold an off-the-record meeting with the
lawyers in her chambers. Fink’s premise – shown through his E-Z
Pass record - that the 25 minutes between the end of court and
his departure from the courthouse was not enough time for the
lawyers to meet with the judge, or constitute the “rest of the
day” for billing purposes, is Fink’s own unsupported perception.
8

As for the secret recordings, the excerpts from Fink’s
recordings of several of his conversations with Kirchner are
somewhat ambiguous. While it appears from the recordings that
Kirchner admitted to editing a document for strategic reasons,
what the document was and why the alteration helped is unclear.
Defendants argue the reference could be any number of documents
created as part of the litigation and, perhaps tellingly, Fink
has provided only a few small pieces of his and Kirchner’s
conversations that occurred on October 6, 13, and 29, 2008,
without the benefit of a broader context for each excerpt. The
pieces of their conversations Fink does provide do not
specifically and directly show Fink asked Kirchner about the
altered email.
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settlement with ALSI to fall through. 9

These failures are fatal

to Fink’s claims.
Fink has the burden of proving his fraud, breach of
fiduciary duty, and spoliation claims, in addition to the
previously dismissed, but currently reconsidered, malpractice
claims.

Each of these claims requires sufficient evidence to

demonstrate that Fink was harmed by those alleged events.

The

Court does not discount the serious accusation that a lawyer
lied to his client and intentionally submitted an altered
document to a tribunal, but the record contains only suspicion,
innuendo, hypothesis, and unsupported suppositions rather than
any material issues of disputed fact.
CONCLUSION
The Court has reconsidered Fink’s legal malpractice claim
now that discovery is complete, as requested by Fink, but the
Court finds its decision to grant summary judgment in

9

In his briefing, Fink takes issue with several iterations of
the same email produced in discovery, including the presence or
absence of his email address “banner,” and different handwriting
on an exhibit tab when the change in handwriting in a series of
exhibits does not make sense. He also explains how easy it is
to alter such an email. These differences, and the ease in
which they can be done, Fink argues, shows that Kirchner changed
the email and has manufactured the same document as a cover-up
for his lies. Again, even if we assume, as we do, the
submission of an altered email, Fink fails to present a triable
issue of causation.
13

defendants’ favor on that claim remains unchanged.

The Court

also finds that defendants are entitled to summary judgment on
the remaining claims in Fink’s complaint for fraud, breach of
fiduciary duty, concealment of evidence and tampering with
evidence.

Other than presenting his own beliefs, Fink has not

demonstrated through competent evidence that Kirchner’s alleged
deceit was motivated by his desire to charge Fink with
unnecessary and excessive fees, and caused Fink to lose his
claims against ALSI or a settlement with ALSI.

Absent an

ability to prove this essential element of each of his claims,
Defendants are entitled to summary judgment.
An appropriate Order will be entered.

Date: December 20, 2016
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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