FINK v. BISHOP et al

Filing 53

MEMORANDUM OPINION & ORDER denying Plaintiff's 16 Cross Motion to Amend. ORDERED that Plaintiff's complaint is DISMISSED WITH PREJUDICE, and the Clerk shall mark this matter as CLOSED. Signed by Judge Noel L. Hillman on 6/16/2015. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN W. FINK,
Plaintiff,
v.
JONATHAN L. BISHOP, KAYDON A.
STANZIONE, JOSEPH M. TROUPE,
GE BETZ, INC., STEVEN W.
DAVIS, PRAXIS TECHNOLOGIES
CORPORATION, PRAXIS
TECHNOLOGIES, INC., ADT
SECURITY SERVICES, INC.,
Defendants.

Civil No. 13-3370 (NLH)(KMW)
MEMORANDUM
OPINION & ORDER

HILLMAN, District Judge
WHEREAS, this Court having issued an Order to Show Cause
[Doc. No. 48] as to why the instant matter should be permitted
to proceed; and
The Court having noted that:
(1)

After undertaking a paragraph by paragraph review of

the proposed second amended complaint and the original complaint
[Doc. No. 1] and the first amended complaint [Doc. No. 4],
paragraphs 1 through 112 of the proposed second amended
complaint are virtually identical to paragraphs 1 through 104 of
the original complaint; and
(2)

All of the claims set forth in the proposed second

amended complaint stem from Plaintiff’s assertion that
Defendants participated in the “conversion of assets from” non-

party Advanced Logic Systems, Inc. (“ALSI”), 1 in which Plaintiff
maintains a security interest, subsequently concealed this
conversion of assets, defrauded Plaintiff of his rights to these
assets, and caused Plaintiff to suffer in excess of $75 million
in damages, (see Proposed Second Amended Compl. [Doc. No. 16-1]
¶ 1); and
(3) Plaintiff is a familiar litigant to this Court having
filed multiple suits in addition to the present action including
1:09-cv-05078-NLH-KMW, Fink v. Edgelink, Inc., et al.; 1:12-cv04125-NLH-KMW, Fink v. Kirchner, et al.; and 1:12-cv-04479, In
Re Advanced Logic Systems, Inc., a bankruptcy appeal; and
(4) In both the Edgelink matter and the ALSI bankruptcy
appeal, Fink’s primary contention was that valuable technology
and assets of ALSI were fraudulently transferred out of that
company and converted to the detriment of Plaintiff’s security
interest in those assets; and
(5) The Court already determined in both the Edgelink
matter and the ALSI bankruptcy appeal that Fink provided no
evidence that these ALSI assets he maintained a security
interest in were fraudulently transferred or converted, and the
Court of Appeals for the Third Circuit affirmed this Court’s

1

Advanced Logic Systems, Inc. is now a defunct corporation.
2

rulings in both the Edgelink matter and the ALSI bankruptcy
appeal by Opinion dated January 21, 2014; and
(6)

In light of Plaintiff’s representation that the claims

in the present matter primarily arise out of his continuing
belief that ALSI assets were fraudulently transferred and
converted by various individuals and business entities – a
belief which this Court has repeatedly found lacks sufficient
evidence, it is necessary to conduct a show cause hearing in
this matter requiring Plaintiff to demonstrate how the claims
asserted in any iteration of the complaint in this action: (1)
are not otherwise barred by issue preclusion, claim preclusion,
or New Jersey’s entire controversy doctrine; and (2) are not in
violation of Federal Rule of Civil Procedure 11(b)(1) and
11(b)(3); and
The Court having held a hearing, at which time Plaintiff
argued his position that his fraudulent concealment and other
related claims should be permitted to proceed because his
current case is based on new evidence discovered after the
conclusion of the prior matters; and
Plaintiff arguing to the Court that because in 2007 ALSI
did not record in its ledger a purchase order check for
$1050.00, there must be a hidden back account, which would
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demonstrate the fraudulent actions perpetrated by ALSI and the
defendants in this case; and
The Court having permitted Plaintiff to file a supplemental
brief to further articulate his position, and Plaintiff having
done so; but
The Court finding, as the Court similarly stated on the
record at the hearing, that Plaintiff’s self-described “crumb”
that may lead to unravel the conspiracy that defrauded him out
of $58 million is insufficient to meet the heightened pleading
standard of Rule 9(b), or the Twombly/Iqbal pleading standard,
which requires more than speculation that discovery will lead to
evidence to support a claim, see Fed. R. Civ. P. 9(b) (mandating
that “a party must state with particularity the circumstances
constituting fraud or mistake”); Lum v. Bank of Am., 361 F.3d
217, 224 (3d Cir. 2004) (explaining that the circumstances of
the fraud must be stated with sufficient particularity to put a
defendant on notice of the “precise misconduct with which [it
is] charged”); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234
(3d Cir. 2008) (stating that the “Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.
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This

‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element”); and
Moreover, the Court further finding that this “new”
evidence is not qualitatively different or significant enough to
permit the re-litigation of Plaintiff’s claims and issues that
have been extensively litigated in prior actions, see, e.g.,
Anspach v. City of Philadelphia, 380 F. App’x 180, 185 (3d Cir.
2010) (explaining that in the prior action, the plaintiffs
failed to demonstrate a due process violation because “the
conduct complained of was devoid of any form of constraint or
compulsion,” and finding that in the current action, the
plaintiffs did not show how a newly discovered false statement
by a nurse significantly changed the controlling facts, or
otherwise established constraint or compulsion by the State
sufficient to bar the application of collateral estoppel);
Haefner v. North Cornwall Twp., 40 F. App’x 656, 658 (3d Cir.
2002) (explaining that claim preclusion applies even where new
claims are based on newly discovered evidence, unless the
evidence was either fraudulently concealed or it could not have
been discovered with due diligence, but finding that the
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plaintiff’s bald and unsupported allegations of fraudulent
concealment to avail himself of the application of the exception
to the claim preclusion doctrine were not persuasive); see also
Burlington Northern R. Co. v. Hyundai Merchant Marine Co., Ltd.,
63 F.3d 1227, 1231-32 (3d Cir. 1995) (“The prerequisites for the
application of issue preclusion are satisfied when: “(1) the
issue sought to be precluded [is] the same as that involved in
the prior action; (2) that issue [was] actually litigated; (3)
it [was] determined by a final and valid judgment; and (4) the
determination [was] essential to the prior judgment.” (citation
omitted)); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064,
1070 (3d Cir. 1990) (claim preclusion, otherwise known as res
judicata, prohibits reexamination not only of matters actually
decided in prior case, but also those that parties might have,
but did not, assert in that action), cited in Haefner, 40 F.
App’x at 658 (stating that new legal theories do not make a
second case different for purposes of claim preclusion); and
The Court therefore finding that Plaintiff’s current
complaint and proposed second amended complaint are not
maintainable, see Jablonski v. Pan American World Airways, Inc.,
863 F.2d 289, 292 (3d Cir. 1988) (holding that amendment of the
complaint is futile if the amendment will not cure the
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deficiency in the original complaint or if the amended complaint
cannot withstand a renewed motion to dismiss);
Accordingly, for the reasons expressed on the record and
herein,
IT IS on this

16th

day of

June

, 2015

ORDERED that Plaintiff’s cross motion to amend [Doc. No.
16] shall be, and hereby is, DENIED; and it is further
ORDERED that Plaintiff’s complaint shall be, and hereby is,
DISMISSED WITH PREJUDICE; and it is further
ORDERED that the Clerk of the Court shall mark this matter
as CLOSED.

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

At Camden, New Jersey

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