Ehrlich v. Mcinerney et al

REPLY BRIEF to Opposition to Motion

D.N.J.June 12, 2017

LEGAL/110968272.v1 03127-01347-JLS MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: John L. Slimm, Esquire -- NJ Attorney ID: 263721970 (JLSlimm@mdwcg.com) 15000 Midlantic Drive, Suite 200 P.O. Box 5429 Mount Laurel, NJ 08054 856-414-6000 Attorneys for Defendant, Dennis P. McInerney, Esq. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE JONATHAN EHRLICH Plaintiff, vs. DENNIS P. MCINERNEY, ESQ.; RE/MAX WORLD CLASS REALTY; THOMAS W. SASAKI; O'HARA APPRAISALS; and MARTIN T. O'HARA Defendants. CIVIL ACTION NO: 1:17-cv-00879-NLH-KMW REPLY BRIEF IN FURTHER SUPPORT OF MOTION TO DISMISS OF DEFENDANT DENNIS P. MCINERNEY, ESQ. Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 1 of 16 PageID: 678 i LEGAL/110968272.v1 TABLE OF CONTENTS Page PRELIMINARY STATEMENT .................................................................................................... 1 SUPPLEMENTAL PROCEDURAL HISTORY AND FACTUAL STATEMENT...................... 1 ARGUMENT.................................................................................................................................. 3 I. THE PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED SINCE IT IS BARRED UNDER THE ROOKER-FELDMAN DOCTRINE AND THE DOCTRINE OF RES JUDICATA .......................................................................................................................... 3 CONCLUSION............................................................................................................................. 13 Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 2 of 16 PageID: 679 ii LEGAL/110968272.v1 TABLE OF AUTHORITIES CASES Barsotti v. Merced, 346 N.J. Super. 504 (App. Div. 2002) ............................................................ 9 Baxt v. Liloia, 155 N.J. 190, 202 (1998) ........................................................................................ 9 Brookshire Equities v. Montaquiza, 346 N.J. Super. 310 (App. Div. 2002), certif. denied, 172 N.J. 179 (2002) ........................................................................................................................... 5 Camden Iron & Metal, Inc. v. Klehr, Harrison, Harvey, Branzberg & Ellers, LLPC, 384 N.J. Super. 172, 178 (App. Div. 2006), certif. denied, 187 N.J. 83 (2006) ....................................... 9 Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F. 3d 411, 421 (3d Cir. 2003) .............................. 9 Edwin R. Jonas, III; Blacktail Mountain Ranch Co., LLC v. Nancy D. Gold, Esq., et al., No. 14-4255 (September 23, 2015)............................................................................................. 8 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).................................. 8 In Re: Estate of Gabrellian, 372 N.J. Super. 432, 441 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005)................................................................................................................................... 5 In Re: Knapper, 407 F. 3d 573, 581 (3d Cir. 2005)........................................................................ 8 ITT Corp. v. Intelnet Intern. Corp., 366 F. 3d 205, 211 (3d Cir. 2004).......................................... 9 Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84 (App. Div. 2001) ................. 9 STATUTES N.J.S.A. 3B:17-8......................................................................................................................... 7, 8 N.J.S.A. 3B:7-8..................................................................................................................... 4, 5, 12 RULES Fed. R. Civ. P. 12(b)(1) and 12(b)(6) ............................................................................................. 1 R. 4:87-2 ......................................................................................................................................... 3 R. 4:87-3(a) ..................................................................................................................................... 7 R. 4:87-8 ..................................................................................................................................... 3, 6 Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 3 of 16 PageID: 680 1 LEGAL/110968272.v1 PRELIMINARY STATEMENT This matter is before the Court in connection with defendant Dennis P. McInerney, Esq.'s Motion to Dismiss plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Defendant's Motion was filed on May 1, 2017. On June 5, 2017, plaintiff filed their Brief and Certification in opposition to the Motion. This Reply Brief is submitted in further support of the Motion to Dismiss the Complaint. SUPPLEMENTAL PROCEDURAL HISTORY AND FACTUAL STATEMENT The plaintiff argues in his Brief at Point I that this action is not barred under the Rooker- Feldman Doctrine. Plaintiff argues that Mr. McInerney was not sued for legal malpractice in the probate case, and that because the issue of legal malpractice was not decided in the probate case, it is appropriate for plaintiff to file this action in the District Court for legal malpractice arising out of Mr. McInerney's handling of the probate litigation in Superior Court. However, a review of plaintiff's Brief and the Certification of plaintiff demonstrates, quite clearly, that this action is barred under the Rooker-Feldman Doctrine. More specifically, in his Brief, Ehrlich argues that the exact issue of legal malpractice was not litigated in the probate action, and so this action in District Court can proceed. Plaintiff argues in his Brief that the Probate Court did not hold that Mr. McInerney destroyed documents. Plaintiff also argues that the Probate Court did not adjudicate the issue of the listing of the Ehrlich law office. Also, plaintiff argues that the probate Court did not adjudicate Mr. McInerney's obligation to locate an asset in the Bahamas. In addition, it is argued that the Probate Court never decided that Mr. McInerney breached his duty to marshal assets, and to investigate the Will and assets. Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 4 of 16 PageID: 681 2 LEGAL/110968272.v1 Plaintiff also argues that the Probate Court did not decide whether Mr. McInerney complied with the Rules of Professional Conduct. In addition, plaintiff argues that the probate Judge did not decide whether Mr. McInerney fulfilled his duty to maintain and preserve papers and property of the Estate. Plaintiff also argues that the Probate Court never decided whether Mr. McInerney destroyed any documents from the decedent's law office. Also, plaintiff argues that the Complaint is not barred under the Doctrines of Res Judicata and Collateral Estoppel because the Probate Court was not the forum for the claims presently being asserted. Also, plaintiff argues that in the probate case he was denied access to records and documents, and had no opportunity to investigate the matter. Plaintiff argues that this case is not barred under the Doctrine of Res Judicata because the causes of action are not identical. Plaintiff argues that he has causes of action in the present action which accrued in 2015 and, therefore, could not be argued in the probate case. Plaintiff admits that he did file Motions in the probate case, but the probate Judgment is on appeal. However, plaintiff filed this action knowing that there was an appeal, and was perfectly content when he filed the action to have this Court hear and decide the case. Plaintiff argues that the Doctrine of Collateral Estoppel does not bar the present action because the precise issues in this case were not decided in the probate case. Next, plaintiff argues that the Entire Controversy Doctrine would not bar the present action because many of his claims had not accrued at the time of the Final Judgment in the probate action in Mercer County. Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 5 of 16 PageID: 682 3 LEGAL/110968272.v1 ARGUMENT I. THE PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED SINCE IT IS BARRED UNDER THE ROOKER-FELDMAN DOCTRINE AND THE DOCTRINE OF RES JUDICATA Of course, legal malpractice actions are derivative. As noted in defendant McInerney's opening Brief, on October 1, 2013, Mr. McInerney filed a Complaint for approval of a final formal accounting of the Estate with an Order to Show Cause issued on October 23, 2013, setting deadlines for the filing of exceptions, replies, and the scheduling of all pending Motions for argument. (See Verified Complaint of October 1, 2013, Exhibit "18", and Order to Show Cause of October 23, 2013, Exhibit "19" to defendant's opening Brief). Judge Jacobson heard argument on the Order to Show Cause and the exceptions on December 13, 2013. (See transcript, Exhibit "20" to defendant's opening Brief). Eventually, the Court entered its ruling on all pending Motions. (See Opinion of July 25, 2014, Exhibit "21" to defendant's opening Brief). Judge Jacobson entered Judgment on July 25, 2014 approving the final accounting of the Temporary Administrator, and awarding fees. (See Judgment of July 25, 2014, Exhibit "22" to defendant's opening Brief). That decision decided all remaining issues as to all parties. It is to be noted that Judge Jacobson denied Ehrlich's exceptions to the accounting. (See Opinion of July 25, 2014 at p. 6, Exhibit "21" to defendant's opening Brief). The Court found that Ehrlich failed to comply with R. 4:87-8 for insufficiency of law. (See Opinion of July 25, 2014 at p. 6, Exhibit "21" to defendant's opening Brief). The Court found that Ehrlich's First Count was insufficient under R. 4:87-8, and unsupportable under R. 4:87-2. (See Opinion of July 25, 2014 at p. 6, Exhibit "21" to defendant's opening Brief). The Court also found that the Second Count of Ehrlich's exception was insufficient under R. 4:87-8. (See Opinion of July 25, 2014 at p. 7, Exhibit "21" to defendant's opening Brief). Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 6 of 16 PageID: 683 4 LEGAL/110968272.v1 Judge Jacobson determined that "even an indulgent reading of the Certification reveals no viable exception to the account." (See Opinion of July 25, 2014 at p. 7, Exhibit "21" to defendant's opening Brief). Then, Judge Jacobson commented that Ehrlich did not show how the acts or omissions on the part of the Temporary Administrator had caused any loss to the Estate. (See Opinion of July 25, 2014 at p. 7, Exhibit "21" to defendant's opening Brief). So, that Order and Judgment of Judge Jacobson in the probate case is not only the beginning of the analysis, it is the end. Accordingly, this present action in the District Court is barred. Judge Jacobson went further in her Order and Judgment, and noted that with respect to the UGI stock, the fact that it was not included in the initial accounting did not cause any loss to the Estate. The sale of the UGI stock was listed as a corpus receipt on Schedule A of the account presently pending before Judge Jacobson. The Court found that any past omissions were cured prior to the filing of the formal accounting. (See Opinion of July 25, 2014 at p. 7, Exhibit "21" to defendant's opening Brief). Judge Jacobson took pains to respond to 32 paragraphs of exceptions. (See Opinion of July 25, 2014 at p. 8, Exhibit "21" to defendant's opening Brief). Judge Jacobson pointed out that Ehrlich failed to object to the first accounting and, therefore, the Order approving the first accounting was res judicata. (See Opinion of July 25, 2014 at p. 8, Exhibit "21" to defendant's opening Brief). Accordingly, this action is barred under the Doctrine. Also, Judge Jacobson noted that plaintiff moved to vacate the Order approving the Temporary Administrator's first accounting, and that Motion was denied. The plaintiff appealed, and Judge Jacobson noted that the Appellate Division affirmed the Trial Court's Order denying the Motion to Vacate. (See Opinion of July 25, 2014 at p. 9, Exhibit "21" to defendant's opening Brief). In fact Judge Jacobson found that under N.J.S.A. 3B:7-8, a Judgment allowing an Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 7 of 16 PageID: 684 5 LEGAL/110968272.v1 account is res judicata as to all parties who receive notice, and as to all exceptions which could or might have been taken to the account. (See Opinion of July 25, 2014 at p. 9, Exhibit "21" to defendant's opening Brief). The Judgment "shall constitute an approval of the correctness and propriety of the account … and the legality and propriety of other matters and shall also exonerate and discharge the fiduciary from all claim of interest parties and of those in privity with or represented by interested parties…" (See Opinion of July 25, 2014 at p. 9, Exhibit "21" to defendant's opening Brief). Judge Jacobson properly rejected Ehrlich's attempt to re-litigate those issues, and found that the decisions of the prior Courts were all res judicata as to the Temporary Administrator's handling of the decedent's tangible personal property, as well as all other matters that could have been accepted in the first account, but were not. Citing, In Re: Estate of Gabrellian, 372 N.J. Super. 432, 441 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005); Brookshire Equities v. Montaquiza, 346 N.J. Super. 310 (App. Div. 2002), certif. denied, 172 N.J. 179 (2002). Therefore, this present action against Mr. McInerney is clearly barred under Judge Jacobson's Order and Judgment, and under N.J.S.A. 3B:7-8. Also, with respect to plaintiff's complaints about the listing and sale of property, Judge Jacobson previously found that when a fiduciary applies to the Probate Court for advice and direction on a transaction, and acts in accordance with the Court's instructions, it is inequitable to allow an exceptant who had an opportunity to be heard at the time of the application to the Court for instructions, to later pursue that same objection through an exception to the final accounting. (See Opinion of July 25, 2014 at p. 10, Exhibit "21" to defendant's opening Brief). As previously argued, by that time Mr. McInerney's actions as Temporary Administrator had been sanctioned by the Court and, therefore, would get res judicata effect. So, how many times does Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 8 of 16 PageID: 685 6 LEGAL/110968272.v1 a Court need to give that res judicata effect to the actions of Mr. McInerney? Certainly, it is not the role of the District Court in this case to affirm the decisions of Judge Jacobson in the probate case. As argued in defendant's opening Brief, plaintiff Ehrlich seeks to create havoc in the administration of this Estate. If this Court permits the present action to proceed, no one would ever be willing to serve as the fiduciary. Judge Jacobson already found that Mr. McInerney proceeded to sell the property only after Court approval, and an opportunity for Ehrlich to be heard. (See Opinion of July 25, 2014 at p. 10, Exhibit "21" to defendant's opening Brief). Ehrlich's purported exception to the sale of the property was, therefore, denied. (See Opinion of July 25, 2014 at p. 12, Exhibit "21" to defendant's opening Brief). In her Judgment and Order, Judge Jacobson found that plaintiff did not set forth any facts that would show the Estate suffered any loss due to the actions or inactions of Mr. McInerney. (See Opinion of July 25, 2014 at p. 13, Exhibit "21" to defendant's opening Brief). Judge Jacobson specifically found that Ehrlich's allegations of duplicitous conduct on the part of Mr. McInerney was not supported by any facts. (See Opinion of July 25, 2014 at p. 13, Exhibit "21" to defendant's opening Brief). Judge Jacobson specifically found that the claims of Ehrlich were unsubstantiated accusations which were factually unsupportable in the record. (See Opinion of July 25, 2014 at p. 13, Exhibit "21" to defendant's opening Brief). The Court found that Mr. McInerney acted appropriately in bring issues to the attention of the Court for direction. He presented his accountings to the Court for approval. The Court found that none of the claims of Ehrlich constituted legitimate exceptions to the accounting. Therefore, Judge Jacobson dismissed the same under R. 4:87-8 as insufficient in law. (See Opinion of July 25, 2014 at p. 13, Exhibit "21" to defendant's opening Brief). Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 9 of 16 PageID: 686 7 LEGAL/110968272.v1 Judge Jacobson found that Mr. McInerney's accounting met the requirements of R. 4:87- 3(a). Plaintiff now claims that there was not an audit. Judge Jacobson found that the Surrogate did audit, without exception, and referred it to the Court for approval. The Court then allowed the account of Mr. McInerney as filed in all respects. (See Opinion of July 25, 2014 at p. 17, Exhibit "21" to defendant's opening Brief). So, it is clear that plaintiff, in this case, simply is not pleased with the decision of Judge Jacobson, and wants this Court to reverse the Order and Opinion of the Probate Court. Also, Judge Jacobson issued an Order of January 20, 2015 denying Ehrlich's application for reconsideration of the July 25, 2014 Judgment. (See Exhibit "29" to defendant's opening Brief). So, at this point, the present action in District Court is nothing more than another bite at the apple on behalf of Ehrlich. In opposition to the present Motion, plaintiff argues that the Probate Court never entered an adjudication as to locating the asset in the Bahamas. However, Ehlrich made an objection in the Probate Court, and complained that Mr. McInerney had not included a "Bahamas property" in the accountings. Judge Jacobson reviewed the evidence, and determined, "Mr. Ehrlich was aware of the claim that the decedent owned the condominium in the Bahamas prior to the first and second accounting and failed to file an exception in this regard to either accounting." (See transcript of October 30, 2015 at p. 34, lines 18-21, Exhibit "34" to defendant's opening Brief). Judge Jacobson found, "The Judgments approving both accountings constitute res judicata and eliminate any liability on the part of Mr. McInerney with regard to the Bahamas property." (See transcript of October 30, 2015 at p. 34, lines 22-25, Exhibit "34" to defendant's opening Brief). Also, Judge Jacobson noted that under N.J.S.A. 3B:17-8, there was a complete release to the Executor for all issues that could have been raised in the accountings. (See transcript of Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 10 of 16 PageID: 687 8 LEGAL/110968272.v1 October 30, 2015 at p. 34, Exhibit "34" to defendant's opening Brief). The Court found that a Release was not necessary on that issue because it was unnecessary since the "Judgment allowing the account operates as a release of the fiduciary under N.J.S.A. 3B:17-8." (See transcript of October 30, 2015 at p. 39, lines 12-13, Exhibit "34" to defendant's opening Brief). Accordingly, this Bahamas property issue is not properly before this Court. Attention is called to the Third Circuit's Opinion in Edwin R. Jonas, III; Blacktail Mountain Ranch Co., LLC v. Nancy D. Gold, Esq., et al., No. 14-4255 (September 23, 2015) (affirming the Order of the Honorable Joseph H. Rodriguez, U.S.D.J.), in which the Third Circuit held that the Rooker- Feldman Doctrine divests Federal District Courts of jurisdiction over "cases brought by state- court losers complaining of injuries caused by state-court judgments rendered before the District Court proceedings commenced and inviting District Court review and rejection of those judgments." (See Jonas, p. 5, citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). (See Exhibit "40" attached to this Reply Brief). In Jonas, the Court noted that Rooker-Feldman precludes District Court's from hearing cases "if the federal claim was actually litigated in state-court prior to the filing of the federal action or … if the federal claim is inextricably intertwined with the state adjudication, meaning that federal relief can only be predicated upon a conviction that the state-court was wrong." In Re: Knapper, 407 F. 3d 573, 581 (3d Cir. 2005). Therefore, under Jonas and Knapper, the Doctrine applies if the Federal claim is inextricably intertwined with the State Court adjudication. That is this case, and plaintiff has no basis upon which to challenge the Rooker- Feldman Doctrine in this case since the present action and the claims in it are clearly inextricably intertwined with the probate decisions and Orders. Of course, this Court cannot hear this case because in order for plaintiff to succeed, he would have to have this Court enter an Order Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 11 of 16 PageID: 688 9 LEGAL/110968272.v1 rendering the Probate Court's Judgment and Orders ineffectual. See, ITT Corp. v. Intelnet Intern. Corp., 366 F. 3d 205, 211 (3d Cir. 2004) (quoting, Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F. 3d 411, 421 (3d Cir. 2003)). Plaintiff's final argument in opposition to defendant McInerney's Motion is that the Probate Court did not adjudicate Mr. McInerney's duties under the RPCs. However, the Disciplinary Codes are not designed to establish standard for civil liability, but rather to provide standards of professional conduct by which lawyers may be disciplined. See, Baxt v. Liloia, 155 N.J. 190, 202 (1998). In New Jersey, the Rules of Professional Conduct do not provide an independent basis for a cause of action. Camden Iron & Metal, Inc. v. Klehr, Harrison, Harvey, Branzberg & Ellers, LLPC, 384 N.J. Super. 172, 178 (App. Div. 2006), certif. denied, 187 N.J. 83 (2006). In fact, the RPCs in and of themselves to not even create a duty. A violation of the RPCs, standing alone, cannot form the basis for a cause of action. Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84 (App. Div. 2001). See also, Barsotti v. Merced, 346 N.J. Super. 504 (App. Div. 2002). Therefore, the RPCs do not create a cause of action and, based upon the Orders and Opinions of the probate Judges, there is no basis for a claim against Mr. McInerney in any event. Also, plaintiff argues that because he lost in the Superior Court, he now can proceed in the District Court to take depositions. This is a meritless argument. In making this argument, it is easy to see that plaintiff Ehrlich seeks to have this Court grant him relief on claims which are inextricably intertwined with the underlying actions in the Probate Court. Plaintiff's argument that res judicata and collateral estoppel do not apply, and should be rejected by this Court since Judge Suter has previously ruled, on January 18, 2013, and approved the settlement between the Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 12 of 16 PageID: 689 10 LEGAL/110968272.v1 Ehrlich Estate, Utica, and the Farias Estate. (See Opinion of January 18, 2013, Exhibit "12" to defendant's opening Brief). In addition, Judge Suter approved the arguments of Mr. McInerney that the settlement was in the best interest of the Estate, and limited the liability of the Ehrlich Estate, which otherwise would be facing both a probate trial and a legal malpractice trial. (See Opinion of January 18, 2013, Exhibit "12" to defendant's opening Brief). Judge Suter found that the settlement avoided substantial risk to the Estate, which had exposure. (See Opinion of January 18, 2013, Exhibit "12" to defendant's opening Brief). Then, on January 30, 2013, a Settlement Agreement and Release was entered into by and among Vincent R. Farias and Gail J. Anderson as co-Executors and co-Trustees of the Estate of Mario Farias, deceased, and the Estate of Richard D. Ehrlich, Esq., deceased, Dennis McInerney, Esq., Temporary Administrator, CTA, and Utica Mutual Insurance Co. (See Settlement Agreement and Release, Exhibit "13" to defendant's opening Brief). That Settlement Agreement referred to underlying actions under Docket No: 1994-2145, in which the parties sought to recover assets allegedly misappropriated and/or wasted, and to surcharge the prior Executors, Trustees, and counsel. The Settlement Agreement also referred to the action under BUR-L-0745-11. (See Settlement Agreement and Release, Exhibit "13" to defendant's opening Brief). Under that settlement, which was approved by Judge Suter, the Ehrlich Estate paid to the Farias Estate $75,000.00, Utica paid to the Farias Estate $50,000.00, and the Ehrlich Estate paid to Utica the sum of $35,000.00. (See Settlement Agreement and Release, Exhibit "13" to defendant's opening Brief). Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 13 of 16 PageID: 690 11 LEGAL/110968272.v1 Also, Ehlrich complains in his opposition that there was an issue regarding whether Mr. McInerney breached a duty by settling the Farias lawsuit. However, there was a Settlement Agreement and Release of January 30, 2013 (Exhibit "13" to defendant's opening Brief), and an Order and Opinion of Judge Suter of January 18, 2013 (Exhibit "12" to defendant's opening Brief) approving the settlement reached between the Ehrlich Estate, Utica, and the Farias Estate. So, plaintiff has no room to argue a breach of duty in connection with the settlement. This decision has preclusive effect, and bars that claim Ehrlich's claim. Attention is also called to the Consent Order of April 23, 2013 in The Matter of the Estate of Richard D. Ehrlich, under Docket No: 20009-2542. (See Exhibit "14" to defendant's opening Brief). That Consent Order was signed by all counsel, including Ehrlich's attorney, Mr. Colicchio. (See Exhibit "14" to defendant's opening Brief). Under the Consent Order, Mr. McInerney was directed to make certain payments from the Estate in connection with the dismissal of the appeal. Those payment included a payment to John Ehrlich of $300,000.00 as partial distribution from the Estate as a result of the settlement of the appeal. (See Consent Order of April 23, 2013, Exhibit "14" to defendant's opening Brief). Judge Suter signed the Consent Order, and it was entered on the docket on April 23, 2013. (See Exhibit "14" to defendant's opening Brief). Also, the appeal to the New Jersey Supreme Court was dismissed with prejudice. (See Order of Supreme Court under A-43, September Term 2012, 071437, filed April 6, 2013, Exhibit "15" to defendant's opening Brief). Plaintiff is also unhappy with the fact that Judge Suter denied his attorney's Motion to vacate the first accounting. He is also unhappy that his attorney unsuccessfully argued an appeal of Judge Suter's denial of the Motion to vacate the first accounting. (See Appellate Division Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 14 of 16 PageID: 691 12 LEGAL/110968272.v1 Opinion of June 11, 2013, Exhibit "16" to defendant's opening Brief). However, those issues were all before the Trial Court and the Appellate Division, and were heard and decided. The plaintiff cannot use the District Court to appeal those decisions. Accordingly, the Complaint is barred under the Rooker-Feldman Doctrine, and also under the Doctrines of Res Judicata and Collateral Estoppel. The Court should reject plaintiff's arguments to the contrary. Judge Jacobson has already ruled on the accountings in her Opinion and Order of July 25, 2014. (See Exhibit "21" to defendant's opening Brief). Judge Jacobson has already ruled that the Order approving the first accounting was res judicata. (See Opinion of July 25, 2014 at p. 8, Exhibit "21" to defendant's opening Brief). Judge Jacobson noted in her Opinion of July 25, 2014 that under N.J.S.A. 3B:7-8, a Judgment allowing an account is "res judicata" as to all parties who receive notice, and as to all exceptions which could or might have been taken to the account. It constitutes an approval of the correctness and propriety of the account, and the legality and propriety of other matters. It also exonerate and discharges the fiduciary from all claims. (See Opinion of July 25, 2014 at p. 9, Exhibit "21" to defendant's opening Brief). So, plaintiff's claims of breach of fiduciary duty must be rejected by this Court since they are clearly barred under the Rooker-Feldman Doctrine, and under the Doctrine of Res Judicata. Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 15 of 16 PageID: 692 13 LEGAL/110968272.v1 CONCLUSION For the reasons expressed above, and for the reasons set forth in defendant's opening Brief, an Order should be entered dismissing plaintiff's Complaint with prejudice. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Attorneys for Defendant, Dennis P. McInerney, Esq. /s/ John L. Slimm BY:_______________________________ JOHN L. SLIMM Dated: June 12, 2017 Case 1:17-cv-00879-NLH-KMW Document 24 Filed 06/12/17 Page 16 of 16 PageID: 693 EXHIBIT vv40vv Case 1:17-cv-00879-NLH-KMW Document 24-1 Filed 06/12/17 Page 1 of 11 PageID: 694 Document: 003112083585 1 Date Filed: (D9/86/2015 /> Case: 14-4255 Page : s NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 14-4255 EDWIN R. JONAS III; BLACKTAIL MOUNTAIN RANCH co., LLC, a Nevada Limited Liability Company Appellants NANCY D. GOLD, ESQ., LINDA B JONAS; CHARNEY, CHARNEY & KARAPOUSIS, P.A.; ADLER, SACHAROW, GOLD, TAYLOR, KEYSER & HAGNER, A Professional Corporation On Appeal from the United States District Court for the District of New Jersey (No. 1- 13-cv-02949) District Judge: Hon. Joseph H. Rodriguez Submitted Pursuant to Third Circuit LAR 34. 1(a) September 16, 2015 Before: FISHER, CHAGARES, and JORDAN, Cirggit Judges. (Filed: September 23, 2015) OPINION* CHAGARES, Circuit Judge. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. I v. 1 Case 1:17-cv-00879-NLH-KMW Document 24-1 Filed 06/12/17 Page 2 of 11 PageID: 695 Case: 14-4255 Document: 003112083585 Page:2 Date Filed: CD9/88/2015 r : This appeal is Edwin Jonas III's la test a ttempt .- - in a series of cases spanning twenty-five years and invoking the jurisdiction of severa l s ta te and federa l courts - to avoid paying a limony and child support. Before the United Sta tes Dis trict Court for the Dis trict of New Jersey, Edwin brought common-law fraud and § 1983 cla ims aga ins t his ex-wife , Linda Jonas , and her divorce lawyer, Nancy Gold. Edwin a lso brought lega l malpractice and convers ion cla ims against Gold and the law firms of Charny, Charny, & Karapousis , P.A. ("Charny") and Adler, Sacharow, Gold, Taylor, Keyser, and Hanger, P.C. ("Adle1° "). In an order dated September 30, 2014, the District Court dismissed a ll cla ims against Linda and Gold and granted summary judgment in favor of Chamy and Ad1e r.' For the following rea sons , we will a ffirm. I. Because we write sole ly for the benefit of the parties , we will only brie fly summarize the facts re levant to our decis ion. Edwin and Linda Jonas divorced in 1990. Edwin repeatedly failed to meet his support obligations, and a New Jersey Superior Cour'£ imposed a constructive trus t with Linda as trus tee and Gold as custodian. In 2002, Edwin moved in Florida s ta te court to se t as ide a judgrnent for unpaid a limony on grounds of negligence and conversion, a lleging that Linda and Gold had misappropria ted trust assets. See Appendix ("App.") 93. Tha t case was dismissed for lack of subject matte r jurisdiction. (Ex. to Decl. of Edwin R. Jonas III Opp. Motions on the Pleadings & Summaly Judgment, Docke t No. 48 ("Ionas DecL"), a t 64-65). 1 The Dis trict Court a lso denied Edwin's cross-motions for summary judgment and Linda Jonas 's motion for Edwin to be declared a vexatious Iitigant. 2 Case 1:17-cv-00879-NLH-KMW Document 24-1 Filed 06/12/17 Page 3 of 11 PageID: 696 Case: 14-4255 Document: 003112083585 Page:3 Date Fi!ed: me/Q812015 i E In May 2006, the New Jersey Superior Court Chancery Divis ion entered a judgment aga ins t Edwin for unpa id child support, a limony, and other obliga tions . In a separa te judgment, it applied the fugitive disentitiement doctrine and dismissed Edwin's cross-motions for re lief, based on a lleged misappropria tions of trust funds, until such time as Edwin posted a bond to cover outstanding judgments and appeared personally in New Je rsey court. The Appe lla te Divis ion a ffirmed the judgments . Jon_as v. Jq1igs, No. FM-04-259-89, 2008 WL 239069, a t *2 (NJ . Super. Ct. App. Div. Dec. 29, 2008). Linda domestica ted, or obta ined recognition of, the May 2006 judgment for unpaid a limony and child support in Florida and Montana . Edwin opposed her a ttempts to enforce the judgment in those jurisdictions , a lleging that the judgment was obta ined by fraud in that Linda and Gold denied having misappropria ted trust funds. Following the unfavorable te rmina tion of severa l of his suits , Edwin brought this puta tive fraud, malpractice , and civil rights action. The Dis trict Court dismissed a ll cla ims for fa ilure to comply with the s ta tute of limita tions and for lack ofjurisdiction It 2 In a footnote , the Dis trict Court found the domestic re la tions exception to divers ity jurisdiction a lso barred Edwin's suit. "The modem rule , as expressed in Ankenbrandt, provides 'that the domestic re la tions exception encompasses only cases involving the issuance of a divorce , a limony, or child custody decree ."' Matusow v. Trans-County Title Age ncy, LLC, 545 F.3d241, 245 (3d Cir. 2008) (quoting Ankenbrandt y_. Richards, 504 U.S. 689, 704 (l992)); see_also Marshall _Marshall, 547 U.S. 293, 308 (2006) ("[O]nly 'divorce , a limony, and child cus tody decrees ' remain outs ide federa l jurisdictiona l bounds .") (quoting Ankenlgandt, 504 U.S. a t 704). While Edwin's suit affects rights heid under child support and a limony orders , it does not explicitly seek modifica tion of those orders . Severa l of Edwin's cla ims a re aga ins t individua ls and firms that were not parties to the domestic relations decrees. See. Matusow, 545 F.3d at 247 ("The domestic re la tions exception genera lly does not apply to third parties ."). We need not decide the issue, however, because the District Court's order can be affirmed on other grounds. 3 Case 1:17-cv-00879-NLH-KMW Document 24-1 Filed 06/12/17 Page 4 of 11 PageID: 697 Case: 14-4255 Document: 003112083585 Page:4 Date Filed: G)9/9B/2015 L 1 found tha t Edwin's cla ims were e ffective ly an appea l from the May 2006 judgments an appeal which, under the RQQker-Feldman doctrine, the federal courts had no power to hear. Jon_as v. Ggld, No. 13-cv-2949, 2014 WL 4854484, a t *7-12 (D.N.J . Sept. 30, 2014). The Dis trict Court dismissed the malpractice cla ims for the additional reasons tha t Edwin fa iled to a llege circumstances tha t would a llow him to bring a malpractice cla im against lawyers who did not represent him, a t *9, and fa iled to submit an a ffidavit of merit as required by New Jersey s ta tute , NJ. Sta t. Ann. § 2A:53A~26-29.ld . It dismissed the § 1983 claims on the ground that none of the defendants were state actors. Id . a t * l1- 12. Edwin timely appea led. 11.3 The Roqker-Fe ldman doctrine dives ts federa l dis trict courts ofjurisdiction over "cases brought by state-court losers complaining of injuries caused by state~cour'r judgments rendered before the dis trict court proceedings commenced and inviting dis trict 3 The District Court had subject-matter jurisdiction under 28 U.S,C. § 1331 and 28 U.S.C. § 1332(a). This Court has jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the Dis trict Court's grant of a motion to dismiss . 13owle__rv. URMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). In so doing, "[w]e take as true a ll the factual a llegations of the [complaint] and the reasonable inferences that can be drawn from them, ... but we disregard legal conclusions and recita ls of the e lements of a cause of action, supported by mere conclusory s ta tements ." _ F.3d 121, 128 (3d Cir. 2010) (quota tion marks omitted). "[W]hen the pla intiffpleads factual content that a llows the court to draw the reasonable inference that the defendant is liable for the misconduct a lleged," the cla im has "facia l plaus ibility" and the compla int will survive the defendant's motion to dismiss . Ashcroft v. Iqba l, 556 U.S. 662, 677 (2009). We review grants of summary judgment de novo, Montone v. City of Je rsey City, 709 F.3d 181, 189 (3d Cir. 2013), viewing the facts in the light most favorable to the non-moving party and affirming only where the moving party has es tablished there is no genuine dispute as to any materia l fact. Bugon v. Te le fle x, Inc., 707 F.3d 417, 425 (3d Cir. 2013). S aggtiago v. War1;1ins te r_ Twp., 6 2 9 4 Case 1:17-cv-00879-NLH-KMW Document 24-1 Filed 06/12/17 Page 5 of 11 PageID: 698 Case: 14-4255 Document: 003112083585 Page: 5 Date Filed: (DQ/88/2015 I. court review and rejection of those judgments." Exxonmobil Qgrp. v. S_audi Ba§i.0 Indug, Corp., 544 U.S. 280, 284 (2005). The doctrine "arises from 28 U.S.C. § 1257 which s ta tes in re levant part that '[f]inal judgments or decrees rendered by the highest court of a s ta te in which a decision could be had, may be reviewed by the Supreme Court."' In re Knappeg ,̀ 407 F.3d 573, 580 (3d Cir. 2005) (quoting 28 U.S.C. § 1257). "Since Congress has never conferred a s imilar power of review of the United States District Courts , the Supreme Court has inferred that Congress did not intend to empower Dis trict Courts to re vie w s ta te court de cis ions ...." Id. The _Booker-Feldmgq doctrine thus precludes federa l dis trict courts from hearing cases "if the federa l cla im was actually litiga ted in s ta te -court prior to the filing of the fede ra l action or ... if the fede ra l cla im is inextricably inte rtwined with the s ta te adjudica tion, meaning tha t federa l re lie f can only be predicated upon a conviction that the sta te-cou1t was wrong." Id . a t 581. "Sta te and federa l cla ims a re inextricably inte rtwined '(l) when in orde r to grant the fede ra l pla intiff the re lief sought, the federal court must determine that the s ta te court judgment was erroneously entered [or] (2) when the federa l court must ... take action tha t would render [the s ta te court's ] judgment ine ffectua l." ITT Qorp. v. _IntelneQntem.__Co1~p.., 366 F.3d 205, 211 (3d Cir. 2004) (quoting Desi's Pizga, Inc. v. City_of Willges-Ba1;18-;, 321 F.3d 41 1, 421 (3d Cir. 2003) (quota tion marks omitted)). A. Edwin's primary argument on appeal is tha t the monetary judgment entered in May 2006 was not fina l because it was a default judgment entered without pre j udice . He relies on the Superior Cour1's instruction, echoed by other New Jersey courts , that his 1 5 Case 1:17-cv-00879-NLH-KMW Document 24-1 Filed 06/12/17 Page 6 of 11 PageID: 699 Case: 14-4255 Document: 003112083585 Page:6 Date Filed: [B9/Q8/2015 I motions could be heard if he posted a sufficient bond and appeared personally in New Jersey. See Jonas v. Jonas, 2008 WL 239069, a t *2 (NJ . Sup. Ct. App. Div. Jan. 30, 2008). Edwin previously litiga ted this precise issue before the United Sta tes Dis trict Court for the Dis trict of Montana . Tha t Dis trict Court found tha t the New Je rsey judgments were fina l. Jonas v._Jonas, No. 13-cv-90, 2014 WL 978099, a t *5 (D. Mont. Mar. 12, 2014). Perhaps rea lizing tha t colla te ra l es toppel could preclude this Court from revis iting the Montana Dis trict Court's finding on the issue , Edwin argues tha t a federa l dis trict court s itting in Montana is not entitled to deference on the subject of the fina lity of New Jersey judgments .4 This argument reflects a misunderstanding of the doctrine of colla te ra l es toppel. But even if we were to review the Enality of the 2006 judgments de 4 Edwin a lso cla ims tha t the Dis trict Court e rred in taking judicia l notice of severa l prior opinions in this inte rminable saga , including the Montana Dis trict Court decis ion, because those opinions conta ined, in his view, various errors of law and fact. He further cla ims tha t the Dis trict Court viola ted his due process rights by fa iling to give him a hearing on his objection to the defendants ' request for judicia l notice . Both of these contentions a re meritless . The Dis trict Court was entitled to take judicia l notice of prior opinions to establish the procedural history of the case, see Southqn Cross Overseas. grgencies, Inc. v. _Kwong Shipping Grp. Ltd., 181 F.3d410, 426 (3d Cir. 1999) (holding tha t courts "may take judicia l notice of [othe r courts '] opinion[s ]-not for the truth of the facts recited there in, but for the exis tence of the opinion, which is not subject to reasonable dispute over its authenticity"), which revealed, among other things, that the fina lity issue was a lready litiga ted. The Dis trict Court added tha t were it to consider the issue de novo, it would agree with the prior analysis anyway. See Jonas v. Qold, 2014 WL 4854844, a t *2 n.6 (D.N.J . Sept. 30, 2014). As to Edwin's due process a rgument, Federal Rule of Evidence 201(e) does not require a formal hearing but an opportunity to be heard. See Llnited States v._l\/Iitchqll., 365 F.3d 215, 251 n.28 (3d Cir. 2004) (finding Rule 201(e) was sa tisfied when Defendant was heard as to proprie ty of taking judicia l notice in the course of a Daubert hearing). Edwin rece ived such an opportunity a t a hearing on July 29, 2014. (See Tr. ofHr'g da ted July 29, 2014 a t 35 (lis ting Jonas 's demand for hearing under 201(e) among the topics of the hearing)). The District Court committed no e rrors in connection with its use ofjudicia l notice . 6 Case 1:17-cv-00879-NLH-KMW Document 24-1 Filed 06/12/17 Page 7 of 11 PageID: 700 Case: 14-4255 Document: 003112083585 Page: 7 Date Fiied: m9aa8/2015 novo, we would agree with United Sta tes Dis trict Court for the Dis trict of Montana . Inviting Edward to renew his challenge under specified conditions did not render the 2006 judgment non-fina l. Othe rwise , Linda 's ability to enforce he r judgment would depend on Edwin making an unlike ly appearance in New Jersey Superior Court. Edwin in fact appealed the 2006 judgments , and the Appella te Divis ion affirmed. Jon_:gs v. Jonas, 2008 WL 239069, a t *2 (NJ . Sup. Ct. App. Div. Dec. 29, 2008). Moreover, a fte r the Appella te Divis ion ruled aga ins t him, Edwin liled motions to vaca te severa l orders , including the 2006 judgment. The Superior Court denied these motions , the Appella te Divis ion affirmed, and the New Jersey Supreme Court denied certifica tion. See Jonas v. Jonas, 210 N.J . 109 (2012). Edwin subsequently conceded in a Montana Bankruptcy action that "[a]ll appellate avenues in New Jersey have been exhausted and no further appeals are possible." 446 Jonas, 2012 WL 2921016, a t *l (Bankr. D. Mont. July 17, 2012). We agree tha t "[f]or a ll intents and purposes , [the 2006 judgments] a re fina l judgme nts ." Jonas v. Jonas, 2014 WL 978099, a t *5 (D. Mont. Mar. 12, 2014). B. Edwin's secondary argument against the applica tion ofR o o ke re ld ma n is tha t his current suit is not inextricably inte rtwined with the 2006 judgment. In pa rticula r, he insists that this suit does not concern state-court judgments but rather independent frauds committed to obta in them. But even without identifying the s ta te -court judgment as his inj ury, the fact remains tha t Edwin's cla ims of misappropria tion of trus t funds are the same ones he brought before the New Jersey Superior Court, and hearing those claims would require us to nullify the Superior Court's applica tion of the fugitive disentitlement 7 Case 1:17-cv-00879-NLH-KMW Document 24-1 Filed 06/12/17 Page 8 of 11 PageID: 701 Case: 14-4255 Document: 003112083585 Page: 8 Date Filed: (D9/Q8/2015 \ doctrine . Because Edwin's requested re lie f would "render [the s ta te cou1t's judgment] ine ffe ctua l," Desi's Piz_a, 321 F.3d a t 421 (quota tion omitted) (a lte ra tion in origina l), the cla ims a re inextricably inte rtwined, and we a re dives ted ofjurisdiction. 111. Edwin argues tha t the District Cou1't's applica tion of the s ta tute of limita tions was in error because he did not have actual knowledge of the defendants ' fraud until 2008 and the s ta tute of limita tions should have been equitably tolled under the doctrine of fraudulent concealment. Under New Jersey law, the s ta tute of limita tions for persona l injury tort cla ims is two yea rs . NJ . S ta t. Ann. § ZA: 14-2.5 The s ta tute of limita tions for tortious injury to rea l or persona l property is s ix years . N.J . Sta t. Aml. § ZA: 14-1. The injuries a lleged in Edwin's Compla int a rose , a t the la tes t, from the judgment in May 2006. This suit was filed in May 2013. Therefore , unless some bas is for tolling applies , Edwin's cla ims a re untime ly. The discovery rule postpones the accrual date of a cause of action "until the injured party discovers , or by an exercise of reasonable diligence and inte lligence should have discovered that he may have a basis for an actionable claim." Lopez v. Svvyer, 300 A.2d 563, 565 (NJ. 1973). Here , Edwin has been a lleging fraud and misappropria tion of trust funds against Linda and her attorneys since at least 2002. (See Jonas Decl., a t 41-44 5 This sta tute applies to § 1983 claims as well.Cito v. Bridgewate r Twp. Police Dept., 892 F.2d 23, 25 (3d Cir. 1989) ("The s ta tute of limita tions for any Section 1983 cla im is the s ta te s ta tute which limits actions for personal injuries . In New Jersey tha t s ta tute is NJ . S ta t. Ann. § 2A:l4-2...." (inte rna l quota tion ma rks a nd cita tions omitte d)). 8 Case 1:17-cv-00879-NLH-KMW Document 24-1 Filed 06/12/17 Page 9 of 11 PageID: 702 Case: 14-4255 Document: 003112083585 Page: 9 Date Filed: G19/Q8/2015 F I (alleging that Linda misappropriated and squandered trust assets and that Gold breached her fiducia ry duty by disburs ing funds to Linda without authoriza tion)), see a1s_QApp. 94 (describing the suit above). He made similar accusations in his cross~motions during the New Jersey enforcement action in 2006. Even if, as the Compla int a lleges , Gold only confirmed the fraud in 2008, App, 53, Edwin was aware of the bas is for his cla im long before tha t. The cause of action was not newly discovered. For the same reason, Edwin cannot make out a case for equitable tolling. "Unlike the discovery rule which suspends the limita tion period because the pla intiff is unaware of [his cause of action], equitable tolling of a s ta tute of limita tions occurs ... 'where the complainant has been induced or tricked by his adversary's misconduct into a llowing the filing deadline to pass ."' Villa lobos v. Fava, 775 A.2d 700, 707 (N.J . Super. Ct. App. Div. 2001) (quoting Dunn v. Borough of Mgynta ins ide, 693 A.2d 1248, 1258 (NJ . Super. Ct. App. Div. 1997)). Edwin's extens ive litiga tion his tory demonstra tes tha t, for better or worse, he has never been induced to believe he lacked a cause of action. Cf. For_bes v. Eaglesolg, 228 F.3d 471, 487 (3d Cir. 2000) (the doctrine of fi° audulent concea lment require s a pla intiff to "show tha t he actua lly was 'mis [led] ... into thinking tha t he d[id] not have a cause of action." (quoting Davis v. Grusemeygj, 996 F.2d617, 624 (3d Cir.1993))). Edwin's cla ims are a ll time-ban.ed.6 6 Because we conclude that Edwin's cla ims are barred by Rooke;-Feldman. and the sta tute of limita tions, we need not reach the appellees ' a rgument that Edwin's malpractice cla ims fa il for lack of a ce rtifica te of merit. Nor do we need to reach the substance of Edwin's § 1983 cla ims. We note , however, tha t Edwin cites no authority for the proposition that the court-appointed trustee of a private trust is , ipso facto, a s ta te actor. 9 Case 1:17-cv-00879-NLH-KMW Document 24-1 Filed 06/12/17 Page 10 of 11 PageID: 703 Case: 14-4255 Document: 003112083585 Page : 10 Date Filed: (DQ/Q8/2015 IV. For the foregoing reasons , we will a ffirm the order of the Dis trict Court. 1 0 Case 1:17-cv-00879-NLH-KMW Document 24-1 Filed 06/12/17 Page 11 of 11 PageID: 704