JONAS et al v. GOLD et al, No. 1:2013cv02949 - Document 95 (D.N.J. 2014)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 9/30/2014. (TH, )
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JONAS et al v. GOLD et al Doc. 95 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY EDWIN R. J ONAS, III and : BLACKTAIL MOUNTAIN RANCH CO., L.L.C., Plaintiffs, v. : Hon. J oseph H. Rodriguez Civil Action No. 13-2949 : NANCY D. GOLD, ESQ., LINDA B. J ONAS, : CHARNEY, CHARNEY & KARAPOUSIS, P.A., ADLER, SACHAROW, GOLD, TAYLOR, KEYSER AND HANGER, : Defendants. OPINION : In 1990 , Plaintiff Edwin R. J onas, III ( J onas ) and pro se Defendant Linda B. J onas ( Linda ) divorced. Sin ce that tim e, there has been a significant am ount of litigation in m ultiple state and federal courts all over the United States. Here, Plaintiffs, J onas and Blacktail Mountain Ranch, of which J onas is a m anaging m em ber, allege that Defendants Linda J onas, Lin da s New J ersey counsel Nancy D. Gold, Esquire, ( Gold ), and the law firm s of Charny, Charny, & Karapousis, P.A. ( Charny ) and Adler, Sacharow, Gold, Taylor, Keyser and Hanger, a Professional Corporation ( Adler ) 1 violated New J ersey Com m on Law and Plaintiffs civil rights under 42 U.S.C. § 1983 when Defendants fraudulently obtained a judgm ent in the J onases divorce proceedings. Presently before the Court are several dispositive m otions filed separately by the parties in this action seeking sum m ary judgm ent and dism issal of the Am ended 1 There is no proof that service was made as to Defendant Adler. In Defendant Gold s Answer, she denies that the Adler firm continues to exist. See, Answer, [Dkt. No. 20], ¶5. Given that service was not made in the requisite time, Defendant Adler is dismissed from the action, without prejudice. Fed. R. Civ. P. 4(j). 1 Dockets.Justia.com Com plaint. Defendant Linda J onas m oves for dism issal 2 of the Am en ded Com plaint, although she does not identify the Rule under which she m oves, and for Edwin J onas and Blacktail Mountain Ranch to be declared vexatious litigants. 3 See Dkt. No. 10 . Defendant Nancy Gold m oves for dism issal pursuant to Fed. R. Civ. P. 12(b)(1) & (6). See Dkt. No. 33. Defendant Charny m oves for sum m ary judgm ent pursuant to Fed. R. Civ. P. 56. See Dkt. No. 34. Plaintiffs m ove to Strike Declarations of J ohn Slim m , Esq. and Frank Orbach, Esq. and dem an d a hearing under Fed. R. Evid. 20 1(e). See Dkt. No. 38 . Plaintiffs also m ove for sum m ary judgm ent and filed a Cross Motion for Sum m ary J udgm ent against Defendants on Liability. See Dkt. No. 42. The Court has considered the extensive briefing, a m ultitude of supplem ental letters, and the argum ents advanced at the hearing in this m atter on J uly 29, 20 14. For the reasons that follow, Defendants Gold s, Linda s, and Charny s m otions are granted and Plaintiffs m otions are denied. I. Backgro u n d The history of this case spans over twenty five years and includes litigation in the Superior Court of New J ersey Chancery Division and Appellate Division, the Suprem e Court of New J ersey, the Florida trial and appellate courts, the Montana trial and 2 Because Linda is a pro se party, the Court must construe her submissions broadly. See Haines v. Kerner, 404 U.S. 519, 520 21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Given that she did not identify the standard under which she moves for dismissal, the Court will construe her motion under Federal Rules of Civil Procedure 12 (b)(1) and (6). 3 Reference to Blacktail Mountain Ranch is implicit in the Court s references and rulings as to Jonas, as the Plaintiffs are in privity. The Amended Complaint identifies Jonas as the managing member of Blacktail Mountain Ranch. As a result, the Court finds that Jonas and Blacktail Mountain Ranch are in privity for purposes of collateral estoppel and res judicata. Specifically, Plaintiffs satisfy the second, third, and fifth categories for privity identified by the Supreme Court in Taylor v. Sturgell, 553 U.S. 880, 895-96, 128 S.Ct. 299, 2173-74 (2009). 2 appellate courts, the Suprem e Court of Montana, the United States District Court for the District of Montana, the United States Court of Appeals for the Ninth Circuit, the United States Bankruptcy Court for the District of Montana, the United States Suprem e Court and the United States Tax Court. At the heart of these m atters is Edwin J onas continuous challenges to and collateral attacks of several post-judgm ent orders issued by the Fam ily Part of Superior Court of New J ersey regarding his divorce from Linda. The exhausting history of the dissolution of the J onases m arriage is littered with a series of child custody and alim ony battles. At the end of the day, Linda J onas was awarded custody an d Edwin J onas was ordered to pay alim ony and child support. 4 Because J onas repeatedly failed to com ply with court-ordered obligations, several m easures were im posed by Superior Court J udge Robert Page, including the establishm ent of a constructive trust. Linda J onas was a trustee of the trust and the trust account was held by the Adler firm and Nancy Gold. Gold represented Lin da during the divorce proceedings in the Superior Court of New J ersey, Chancery Division, Fam ily Part, Cam den County Vicinage, Cause No. FM-0 4- 4 In 20 0 6, J udge Page addressed a m otion filed by Lin da to enforce J onas obligations to pay alim ony and m edical expen ses for their children . Specifically, Linda J onas m oved for paym ent of alim ony, entry of judgm ent against J onas for alim ony arrears, entry of judgm ent against defendant for un paid m edical insurance costs an d his share of unreim bursed m edical and dental care for the children, and for counsel fees. J onas filed opposition and cross m otions to term inate his alim ony obligation , com pel an accounting of all m on ies paid to plaintiff from a constructive trust im posed by the court on J anuary 12, 1996, and to appoint a receiver. J onas asked that Linda s m otions also be den ied based on unclean hands. J udge Page granted relief in favor of Linda and dism issed J onas cross m otion pursuant to the fugitive disentitlem ent doctrine. J onas had failed to appear or otherwise com ply with J udge Page s previous orders. As a result, the court dism issed J onas m otion s until he posted a sufficient security bond to cover outstanding judgm ents and his com m itm ent to person ally appear in New J ersey before this court at the court s earliest conven ience. J onas v. J onas, FM-0 4-259-89, May 4, 20 0 6. In addition, the court ordered the issuance of a warrant for J onas arrest for his non-appearance in court. Id. The Appellate Division affirm ed, notin g that J onas defiance is especially egregious in light of the fact that he was an attorney-atlaw of this State and was suspended in this State and others for his willful evasion of court orders. J onas v. J onas, 20 0 8 WL 2390 69, *2 (N.J . Sup. Ct. App. Div. Dec. 29, 20 0 8) ( We affirm J udge Page's reasoned and tem pered application of the doctrine, and we also apply it to defendant's appeal. ). 3 259-8 9. In May 20 0 6, the New J ersey Superior Court entered a judgm ent against J onas for unpaid child support, alim ony, attorney s fees and other obligations. Since that tim e, Linda has m oved to dom esticate the New J ersey Order in Florida and Montana. At every step of the way, Linda s attem pts to enforce the New J ersey order have been m et with virulent resistance from J onas, who not only continues to sue Linda, but also sued the attorneys who have represented her in the various litigations, his own counsel, and the Montana state court judge who presided over the civil dom estication action brought by Linda in that state. 5 See J onas v. Waterm an, 13-CV-16, 20 13 WL 2962766 (D. Mont. J une 12, 20 13). And J onas has earned a reputation for filing frivolous com plaints. Recently, the District of Montana im posed sanctions upon and adm onished J onas for his repeated abuse of the court. See, J onas v. J onas, 13-CV-90 , 20 14 WL 389138, *3 (D. Mont. Aug. 7, 20 14) (Ordering the clerk to distribute the court s order to the disciplin ary boards of the bar exam iners of the states of Maine, New J ersey, and Pen nsylvania.) Several courts have refused to give J onas claim s any consideration, having addressed J onas claim s in sum m ary fashion. See, id., citing (J onas v. Gold, 58 So.3d 396 (Fla. 4th Dist. App. 20 11); J onas v. Fid. Nat. Title Ins. Co. of Pennsylvania, 44 So.3d 596 (Fla. 4th Dist. App. 20 10 ); J onas v. J onas, 773 So.2d 1163 (Fla. 4th Dist. App. 20 0 0 ); J onas v. J onas, 40 A.3d 733 (N.J . 20 12); J onas v. J onas, 950 A.2d 90 5 (N.J . 20 0 8); J onas v. J onas, 758 A.2d 649 (N.J . 200 0 ); see also J onas v. J onas, 20 11 WL 68 20 244 at *2 (N.J . Super. App. Div. 20 11) ( Given the posture of the case, defendant's 5 In February, 2010, the Montana Supreme Court affirmed a judgment that issued a writ of execution against Jonas in the amount of $1,091,391.21. The Court also affirmed the issuance of a charging order and an order for the appointment of a receiver, foreclosure of the lien, and for the dissolution of the Blacktail Mountain Ranch. The proceeds generated by dissolving the Ranch were ordered to be applied as satisfaction against the New Jersey judgment. See, Jonas v. Jonas, 359 Mont. 443, 249 P.3d 80 (Mont. 2010). 4 claim s of error lack sufficient m erit to warrant discussion in a written opinion. ); J onas v. J onas, 20 0 8 WL 2390 69, *2 (N.J . Sup. Ct. App. Div. Dec. 29, 20 0 8 ) ( This is the fifth tim e this case has com e before us sin ce the parties' 1998 divorce. )). For these reasons, the Court will not recount the protracted history of this case in great detail. Plaintiff s argum ents here are frivolous and warrant little, if any, discussion in light of the argum ents that support dism issal of the Am ended Com plaint. In short, Plaintiffs continue to claim that several New J ersey judgm ents culm inating in the May 4, 20 0 6 judgm ent were fraudulently obtained and that the validity of the Montana judgm ent [ordering dissolution of Blacktail Mountain Ranch] is based on the assum ption that certain judgm ents used in reaching that judgm ent were final judgm ents when in fact they were not final judgm ent[s] under New J ersey law. See Plaintiff s Brief in Support, 4. Plaintiffs allege that the finality of the New J ersey J udgm ent is an issue in the present case. Id. The Court disagrees. 6 There are seven counts in the Am ended Com plaint. Count I is entitled Legal Malpractice v. Nancy D. Gold and alleges claim s of legal m alpractice, fraud and negligence. Counts II and III separately allege a breach of fiduciary duty against Linda 6 The issue of the finality of the 2006 New Jersey order has been decided by the Montana District Court in its opinion adopting the Findings and Recommendations of the Magistrate Judge Jeremiah C. Lynch. Jonas v. Jonas, 13-CV-90, 2014 WL 978099 (D. Mont. March 12, 2014). It is arguable that this Court is collaterally estopped from revisiting that ruling. Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir. 1995). Collateral estoppel applies where: (1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous determination was necessary to the decision; and (4) the party being precluded from re-litigating the issue was fully represented in the prior action. Id. (citing United Indus. Workers v. Gov't of the Virgin Islands, 987 F.2d 162, 169 (3d Cir. 1993)). In addition, the New Jersey Appellate Court affirmed Judge Page s Order and the decision is final. Jonas v. Jonas, 2008 WL 239069, *2 (N.J. Sup. Ct. App. Div. Dec. 29, 2008). This Court has no reason to revisit this issue. The Doctrine of collateral estoppel precludes this court from considering this issue de novo. Even if this Court were to consider the merits of Jonas argument, this Court agrees with the well-reasoned opinion of the District Court of Montana regarding the finality of the order. See Jonas v. Jonas, 13-CV-90, 2014 WL 978099 (D. Mont. March 12, 2014). 5 and Gold, respectively. Count IV alleges fraud and conspiracy to com m it fraud against both Linda and Gold. Count V alleges conversion, m isappropriation, and em bezzlem ent against all Defendants. Count VI is a claim of Legal Malpractice against Charny and Adler. Finally, Count VII, alleges a violation of 42 U.S.C. §1983 against Linda and Gold. II. Ap p licable Stan d ard s There are three standards of review at play in the present m atter. Federal Rule of Civil Procedure 12 governs a court =s decision to dism iss a claim based on the pleadings. See Fed. R. Civ. P. 12. More specifically, Federal Rule of Civil Procedure 12(b)(1) governs a court =s decision to dism iss a claim for Alack of subject m atter jurisdiction @ and Federal Rule of Civil Procedure 12(b)(6) governs a court =s decision to dism iss a claim for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 56 governs the court s consideration of whether sum m ary judgm ent is warranted. See Fed. R. Civ. P. 56. A. Fe d e ral Ru le o f Civil Pro ce d u re 12 ( b) ( 1) Federal Rule of Civil Procedure 12(b)(1) perm its a court to dism iss a case for lack of subject m atter jurisdiction. A defendant m ay contest subject m atter jurisdiction by attacking the face of the com plaint (i.e., a facial attack) or by attacking Athe existen ce of subject m atter jurisdiction in fact, quite apart from any pleadings@ (i.e., a factual attack). Mortensen v. First Fed. Sav. & Loan Ass=n, 549 F.2d 8 84, 8 91 (3d Cir. 1977); Schwartz v. Medicare, 8 32 F. Supp. 782, 787 (D.N.J . 1993); Donio v. United States, 746 F. Supp. 50 0 , 50 4 (D.N.J . 1990). A facial attack Acontest[s] the sufficiency of the pleadings.@ Com m on Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 20 0 9) (citation om itted). On a facial attack, the court m ust read the com plaint in the light m ost 6 favorable to the plaintiff and consider the allegations of the com plaint as true. Mortensen, 549 F.2d at 8 91. Under a factual attack, a court is not confined to the pleadings but m ay weigh and consider evidence outside the pleadings, in cluding affidavits, depositions, and exhibits to satisfy itself that it has jurisdiction. Id.; Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 20 0 0 ); Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997) (stating that court can consider affidavits, depositions, and testim ony to resolve factual issues bearing on jurisdiction). This is because on a factual m otion to dism iss for lack of subject m atter jurisdiction, the court=s very power to hear the case is at issue. Mortensen, 549 F.2d at 8 91; Gotha, 115 F.3d at 179. Moreover, on a factual attack, no presum ptive truthfulness attaches to a plaintiff=s allegations, and the existen ce of disputed m aterial facts will not preclude the trial court from evaluating for itself the m erits of the jurisdictional claim . Mortensen, 549 F.2d at 8 91. Regardless of which approach is used, a plaintiff has the burden of proving that jurisdiction exists. Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 20 0 9) (citing Carpet Grp. Int=l v. Oriental Rug Im porters Ass=n, 227 F.3d 62, 69 (3d Cir. 20 0 0 )); Mortensen, 549 F.2d at 8 91. AThe court m ay dism iss the com plaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject m atter jurisdiction.@ Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 438 (D.N.J . 1999) (citations om itted). If the court finds that it lacks subject m atter jurisdiction, it m ust dism iss the action under Rule 12(h)(3). See Fed. R. Civ. P. 12(h)(3) (AIf the court determ in es at an y tim e that it lacks subject-m atter jurisdiction, the court m ust dism iss the action.@). 7 B. Fe d e ral Ru le o f Civil Pro ce d u re 12 ( b) ( 6 ) Federal Rule of Civil Procedure 12(b)(6) allows a defendant to m ove for dism issal of a com plaint based on Afailure to state a claim upon which relief can be granted.@ Fed. R. Civ. P. 12(b)(6). A com plaint should be dism issed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim . Fed. R. Civ. P. 12(b)(6). When deciding a m otion to dism iss pursuant to Rule 12(b)(6), ordinarily only the allegations in the com plaint, m atters of public record, orders, and exhibits attached to the com plaint, are taken into consideration. 7 See Chester County Interm ediate Unit v. Pa. Blue Shield, 8 96 F.2d 8 0 8, 8 12 (3d Cir. 1990 ). It is not necessary for the plaintiff to plead eviden ce. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultim ately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (20 0 7). Instead, the Court sim ply asks whether the plaintiff has articulated Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7). AA claim has facial plausibility8 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.@ Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (20 0 9) AAlthough a district court m ay not consider m atters extraneous to the pleadings, a docum ent integral to or explicitly relied upon in the com plaint m ay be considered without converting the m otion to dism iss into one for summ ary judgm ent.@ U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 20 0 2) (internal quotation m arks and citations om itted) (em phasis deleted). 7 8 This plausibility standard requires more than a m ere possibility that unlawful conduct has occurred. AWhen a com plaint pleads facts that are >m erely consistent with= a defendant=s liability, it >stops short of the line between possibility and plausibility of >entitlem ent to relief.==@ Id. 8 (citing Twom bly, 550 U.S. at 556). AWhere there are well-pleaded factual allegations, a court should assum e their veracity and then determ ine whether they plausibly give rise to an entitlem ent to relief.@ Iqbal, 129 S. Ct. at 1950 . The Court need not accept A>unsupported conclusions and unwarranted inferences,=@ Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 20 0 7) (citation om itted), however, and A[l]egal conclusions m ade in the guise of factual allegations . . . are given no presum ption of truthfulness.@ Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 60 7, 60 9 (D.N.J . 20 0 6) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170 , 177 (3d Cir. 20 0 7) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 20 0 5) (A[A] court need not credit either >bald assertions= or >legal conclusions= in a com plaint when deciding a m otion to dism iss.@)). Accord Iqbal, 129 S. Ct. at 1950 (finding that pleadings that are no m ore than conclusions are not entitled to the assum ption of truth). Although Adetailed factual allegations@ are not necessary, Aa plaintiff=s obligation to provide the >grounds= of his >entitlem ent to relief= requires m ore than labels and conclusions, an d a form ulaic recitation of a cause of action=s elem en ts will not do.@ Twom bly, 550 U.S. at 555 (internal citations om itted). See also Iqbal, 129 S. Ct. at 1949 (AThreadbare recitals of the elem ents of a cause of action, supported by m ere conclusory statem ents, do not suffice.@). Thus, a m otion to dism iss should be granted unless the plaintiff=s factual allegations are Aenough to raise a right to relief above the speculative level on the assum ption that all of the com plaint=s allegations are true (even if doubtful in fact).@ Twom bly, 550 U.S. at 556 (internal citations om itted). A[W]here the well-pleaded facts 9 do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged-but it has not >shown=->that the pleader is entitled to relief.=@ Iqbal, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8 (a)(2)). C. Su m m ary Ju d gm e n t Pu rs u a n t to Fe d e ral Ru le o f Civil Pro ce d u re 56 . A court will grant a m otion for sum m ary judgm ent if there is no gen uine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 10 6 S. Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent only when the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law. Fed. R. Civ. P. 56 (c). An issue is genuine if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 10 6 S. Ct. 250 5, 91 L.Ed.2d 20 2 (1986). A fact is m aterial if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuin e issue of m aterial fact exists, the court m ust view the facts and all reasonable inferen ces drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 10 6 S. Ct. 1348, 8 9 L.Ed.2d 538 (1986). 10 Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 10 6 S. Ct. 2548 , 91 L.Ed.2d 265 (1986). Once the m oving party has m et this burden, the nonm oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally s Park Place, Inc., 8 70 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts and affirm ative eviden ce that contradict those offered by the m oving party. Andersen, 477 U.S. at 25657. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery an d upon m otion, against a party who fails to m ake a showing sufficient to establish the existen ce of an elem ent essential to that party s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In deciding the m erits of a party s m otion for sum m ary judgm ent, the court s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a gen uine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). D . Ju d icial N o tice Under any of these standards of review, a court m ay take judicial notice of a fact that is not subject to reasonable dispute because it ... can be accurately and readily determ ined from sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 20 1(b). Rules 12(b)(1) and 56 perm it eviden ce outside of the Com plaint. Even under a Rule 12(b)(6) posture, where the Court is lim ited to the allegations plead on the face of 11 the com plaint, a court m ay consider judicially noticeable facts without converting a m otion to dism iss into a m otion for sum m ary judgm ent. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 30 8, 323, 127 S.Ct. 2499, 168 L.Ed.2d 179 (20 0 7) (noting courts ordinarily exam ine ... m atters of which [they] m ay take judicial notice when ruling on Rule 12(b)(6) m otions to dism iss); Beverly Enters., Inc. v. Trum p, 182 F.3d 18 3, 190 n. 3 (3d Cir. 1999) (holding that a court m ay consider m atters of public record on a m otion to dism iss without converting the m otion to one for sum m ary judgm ent). It follows that a court m ay take judicial notice of the existence of another court's opinion. See Southern Cross Overseas Agencies, Inc. v. Kwong Shipping Group Ltd., 18 1 F.3d 410 , 426 (3d Cir. 1999) (A court m ay take judicial notice of another court s opinions not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity. ) (citations om itted). Likewise, a court m ay take judicial notice of the record from a previous court proceeding between the parties. See Oneida Motor Freight, Inc. v. United J ersey Bank, 8 48 F.2d 414, 416 n. 3 (3d Cir. 1988). Consideration of m atters of public record and docum ents incorporated into the com plaint by reference are m atters of which a court m ay take judicial notice. Tellabs, Inc., 551 U.S. at 322, 127 S.Ct. 2499. Here, J onas specifically m entions the orders of the New J ersey Superior Court related to his divorce from Linda and the related dom estication litigation before the courts in Florida, Montana, and New J ersey. See, Am . Com pl. ¶¶36-39, 42. He also specifically m entions the United States Bankruptcy Court and the United States Tax Court proceedings. See id. at ¶¶ 22, 32, 36, 12 48 . As a result, the Court takes judicial notice of J onas pleadings in those actions, as well as the opinions and orders of the courts. Tellabs, Inc., 551 U.S. at 322, 127 S.Ct. 2499. Moreover, given that the com plaints filed by J onas in the various state court actions are averm ents that he him self prepared and subm its to a court, these pleadings can be accurately and readily determ ined from sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 20 1(b). 9 III. D is cu s s io n For the reasons that follow, Defendants m otions are granted. The Court does not have jurisdiction over Plaintiffs claim s pursuant to the Rooker-Feldm an doctrine. In addition, the state law claim s and constitutional claim s are tim e-barred. Even if the claim s were subject to review by this Court, they fail to state a claim upon which relief can be granted. As a result, sum m ary judgm ent is granted as to Defendant Charny an d the Am ended Com plaint is dism issed as to Defendants Linda an d Gold. 10 Plaintiffs m otion for sum m ary judgm ent is dism issed as m oot. 9 The Court rejects Jonas claim that a hearing under Federal Rule of Evidence 201(e) requires a formal hearing before a court can take judicial notice in all circumstances. As the District of Montana held, [t]he Sixth and the Tenth Circuit, however, have held the opposite: Federal Rule of Evidence 201(e) does not require under all circumstances, a formal hearing. Amadasu v. The Christ Hosp., 514 F.3d 504, 507 08 (6th Cir. 2008) (quoting Am. Stores Co. v. Commr. of Internal Revenue, 170 F.3d 1267, 1271 (10th Cir. 1999)). Additionally, Jonas had the opportunity to be heard at the hearing before this Court on July 29, 2014. Plaintiffs First Motion to Strike Declarations of John Slimm, Esq. and Frank Orbach, Esq. Demand for Hearing under Fed. R. Evid. 201(e) and Memo of Law in Support Thereof [38] is denied. 10 The Court also finds that the Amended Complaint is barred by the Domestic Relations Exception to Federal Jurisdiction. See Ankenbrandt v. Richards, 504 U.S. 689, 704, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) (holding domestic relations exception precludes subject matter jurisdiction over diversity cases involving the issuance of divorce, alimony, or child custody decrees); Matusow v. Trans-County Title Agency, LLC, 545 F.3d 241, 245 (3d Cir. 2008) (Holding that jurisdictional bar does not extend to tort matters that arise out of and are outside the divorce proceeding.). Here, Plaintiffs argue that the claims in the Amended Complaint are not a challenge to the divorce decree; they are separate tort claims. The Court disagrees. While Plaintiffs plead claims that sound in tort, at the heart of Plaintiffs Amended Complaint is Jonas attempt to be relieved from the New Jersey Superior Court s order compelling him to pay child support and alimony, which are barred from review by this Court. See, 13 The Court will address the various m otions of the Defendants as to each count in the Am ended Com plaint. A. Co u n ts I an d VI Defendant Gold s m otion to dism iss pursuant to Fed. R. Civ. P. 12(b)(1) and(6) is granted as to Count I of the Am ended Com plaint. For the sam e reasons, Charny s m otion for sum m ary judgm ent as to Count VI is granted. Count I, entitled Legal Malpractice v. Nancy D. Gold, alleges claim s of legal m alpractice, fraud, an d negligen ce and is dism issed. For the sam e reasons, sum m ary judgm ent is granted in favor of Charny as to Count VI, entitled Legal Malpractice v. Charny. First, the claim is barred by the Rooker-Feldm an doctrin e because it is essentially an appeal from New J ersey Superior Court J udge Page s 20 0 6 Order. J onas claim s here are on their face an appeal from the Superior Court of New J ersey s decision. Under the Rooker Feldm an doctrine, a district court is precluded from entertaining an action, that is, the federal court lacks subject m atter jurisdiction, if the relief requested effectively would reverse a state court decision or void its ruling. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 192 (3d Cir. 20 0 6) (citations om itted). There are four requirem ents that m ust be m et for the Rooker Feldm an doctrine to apply: (1) the federal plaintiff lost in state court; (2) the plaintiff com plain[s] of injuries caused by [the] state-court judgm ents; (3) those judgm ents were ren dered before the federal suit e.g., Zirkind v. State of New York, 07-CV-5602, 2007 WL 4300258, *2 n.3 (D.N.J. Dec. 5, 2007) (citing Galtieri v. Kane, No. 03-2994, slip op. at 3 (3d Cir. March 4, 2004) (stating that a federal court has no jurisdiction over a domestic relations matter even when the complaint is drafted to sound in tort ... or contract ... or even under the federal constitution. ) (citations omitted)). 14 was filed; and (4) the plaintiff is inviting the district court to review and reject the state judgm ents. B.S. v. Som erset Cnty., 70 4 F.3d 250 , 259 60 (3d Cir. 20 13) (quoting Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 20 10 )). As such, application of the Rooker Feldm an doctrine is necessarily lim ited to cases brought by state-court losers com plaining of injuries caused by state-court judgm ents rendered before the district court proceedings com m enced and inviting district court review and rejection of those judgm ents. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 , 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (20 0 5). The Third Circuit explains the Rooker Feldm an doctrine as barring federal district courts from hearing cases under two circum stances: first, if the federal claim was actually litigated in state-court prior to the filing of the federal action or, second, if the federal claim is inextricably intertwined with the state adjudication, m eaning that federal relief can only be predicated upon a conviction that the state-court was wrong. In re Kn apper, 40 7 F.3d at 580 (em phasis added) (quoting Walker v. Horn, 385 F.3d 321, 329 (3d Cir.20 0 4); Parkview Assoc. P'ship v. City of Lebanon, 225 F.3d 321, 325 (3d Cir. 20 0 0 ). [A] federal action is in extricably intertwined with a state adjudication, and thus barred in federal court under Feldm an, [w]here federal relief can only be predicated upon a conviction that the state court was wrong. Id. (quoting Centifanti v. Nix, 865 F.2d 1422, 1430 (3d Cir. 1989) (quoting Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 25, 10 7 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J ., concurring)). See also Exxon Mobil, 544 U.S. at 293, 125 S.Ct. 1517 ( In parallel litigation, a federal court m ay be bound to recognize the claim - and issue-preclusive effects of a state-court judgm ent, but the 15 federal court is divested of jurisdiction under Rooker Feldm an only where it is asked to redress injuries caused by an unfavorable state-court judgm ent.). Im portantly, if a plaintiff's claim in federal court is inextricably intertwined with a previous state court adjudication, the district court lacks jurisdiction over the claim even if it was not raised in the state court. Id. at 327, 125 S.Ct. 1517. Here, the district court is invited to review and reject J udge Page s dism issal of J onas claim s of m isappropriation of the constructive trust under the fugitive disentitlem ent doctrine. Regardless of whether Plaintiff's allegations were actually litigated and in this case the claim s were not litigated because of J onas failure to appear before the court and failure to com ply with J udge Page s previous orders. J onas v. J onas, 20 0 8 WL 2390 69, *2 (N.J . Sup. Ct. App. Div. Dec. 29, 20 0 8). The Court finds that J onas is a state-court loser, com plaining of an injury caused by J udge Page s dism issal of his claim s under the fugitive disentitlem ent act. The claim s dism issed by the Superior Court include his allegation that the constructive trust was m ishandled and seek an accounting of the activity of the trust. All of Plaintiffs claim s in the Am ended Com plaint center on the constructive trust account handled by Gold and Linda. Plaintiffs, therefore, ask this Court to review and reject the state court judgm ents. In particular, the Court finds that the ultim ate relief sought by Plaintiff in this m atter is the sam e relief he sought and lost in the Superior Court of New J ersey. At a m inim um , it is inextricably intertwined. In this regard, the Court rejects Plaintiffs attem pt to characterize his claim s as sounding in tort. J onas invites this Court to take an action that would negate the New 16 J ersey Superior Court s adm onition of his conduct and perm it J onas proceed with his attack against the m anagem ent of the constructive trust without subjecting him self to the jurisdiction of the New J ersey Superior Court. Such a review is proscribed by Rooker-Feldm an. 11 Walker, 385 F.3d at 330 . The Court finds that the present Am ended Com plaint is in extricably intertwined with issues resolved by the New J ersey Superior Court and this Court is without jurisdiction to resolve J onas claim s under the Rooker Feldm an doctrine. As a result, pursuant to the Rooker Feldm an abstention doctrine, this Court lacks subject m atter jurisdiction over the Plaintiff's claim s and dism isses them as to Defendant Gold pursuant to Fed. R. Civ. P. 12(b)(1) and grants sum m ary judgm ent pursuant to Fed. R. Civ. P. 56 in favor of Defendant Charny. In addition, Counts I and VI of the Am ended Com plaint also fail to state a claim upon which relief can be granted because Gold and Charny did not represent Edwin J onas and because J onas fails to allege facts that would trigger the extraordinary circum stance of perm itting a non-client to sue an adversary s attorney. The necessary elem ents of a claim for legal m alpractice are: (1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of such duty; and 11 Jonas absconded and failed to appear before Judge Page or otherwise demonstrate any intent to comply with the Orders of that court. As a result, Judge Page applied the fugitive disentitlement doctrine, pursuant to Matsumoto v. Matsumoto, 171 N.J. 110 (2002), which bars a fugitive, such as Jonas, from seeking relief in the very court whose jurisdiction he evades. The upshot was that Jonas cross motion to terminate his alimony obligation, to compel an accounting of all monies paid to Linda from the constructive trust, and to appoint a receiver was dismissed without prejudice. Judge Page s Order was affirmed by the New Jersey Appellate Division on January 30, 2008. Jonas v. Jonas, 2008 WL 239069 (N.J. Super. App. Div. Jan. 30, 2008). Jonas remains free to revisit the Superior Court s order and have his motions heard upon satisfaction of the conditions precedent in Judge Page s order. 17 (3) proxim ate causation. Albright v. Burns, 20 6 N.J . Super. 625, 632, 50 3 A.2d 386 (N.J . Super. App. Div. 1986). Here, Plaintiffs attem pt to sue Linda s attorneys. The determ in ation of whether Gold and her firm s owed J onas a duty is a question of law. Petrillo v. Bachenberg, 139 N.J . 472, 479, 655 A.2d 1354 (1995); Wang v. Allstate Ins. Co., 125 N.J . 2, 15, 592 A.2d 527 (1991) ( The question of whether a duty exists is a m atter of law properly decided by the court, not the jury, and is largely a m atter of fairness or policy. ). See also Taylor v. Cutler, 157 N.J . 525, 724 A.2d 793 (1999). Only in lim ited circum stances will a lawyer owe a non-client a duty of care; none of those circum stances are present here. See Barsotti v. Merced, 346 N.J . Super. 50 4 (N.J . App. Div. 20 0 2). Moreover, New J ersey courts are reluctant to perm it a non-client to sue his adversary s attorney. LoBiondo v. Schwartz, 199 N.J . 62, 10 0 (20 0 9) ( Our reluctance to perm it nonclients to institute litigation against attorneys who are perform ing their duties is grounded on our concern that such a cause of action will not serve its legitim ate purpose of creating a rem edy for a nonclient who has been wrongfully pursued, but instead will becom e a weapon used to chill the entirely appropriate zealous advocacy on which our system of justice depen ds. ). In addition, Plaintiffs fail to supply the Court with the requisite affidavit of m erit in support of their claim s for legal m alpractice, negligence, and fraud against attorney Gold or Charny. In Nuveen Municipal Trust v. Withum sm ith Brown P.C., the Third Circuit held that claim s against a professional asserting fraud and aiding an d abetting fraud required proof of a deviation from the professional standards of care under New J ersey law. Nuveen Municipal Trust v. Withum sm ith Brown P.C., 752 F.3d 60 0 (3d Cir. 18 20 14). Specifically, the Court found that New J ersey s Affidavit of Merit Statute, N.J . Stat. Ann. § 2A:53A-26-29, required an affidavit of m erit from an indepen dent professional attesting to claim s seeking m on ey dam ages for fraud, negligent m isrepresentation, and m alpractice, allegedly com m itted by two professional [law] firm s. Id. at 60 1. Here, J onas alleges claim s sim ilar to those considered in Nuveen. Under New J ersey law, the lack of an affidavit of m erit is fatal to these claim s. Id. Sum m ary judgm ent is granted in favor of Defendant Charny and the claim is dism issed as to Defendant Gold pursuant to Fed. R. 12(b)(6). Plaintiffs claim s of fraud and conspiracy to com m it fraud against Gold and Charny are also dism issed as tim e-barred. The New J ersey judgm en ts were entered against J onas in May 20 0 6. The statute of lim itations has passed for Plaintiffs state law claim s and 42 U.S.C. § 1983 claim . See City v. Bridgewater Twp. Police Dep t, 8 92 F.2d 23, 25 (3d Cir. 1989) (in New J ersey statute of lim itations is two years for tort); N.J .S.A. 2A: 14-2 (two years for tort); see also N.J .S.A. 2A: 14 1 ( [e]very action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2A:14 2 and 2A:14 3 of this Title, or for recovery upon a contractual claim or liability, express or im plied, not under seal, or upon an account other than one which concerns the trade or m erchandise between m erchant an d m erchant, their factors, agents an d servants, shall be com m enced within 6 years next after the cause of any such action shall have accrued. ). J onas filed the instant Com plaint on May 10 , 20 13. 19 Plaintiffs argue that the Doctrine of Fraudulent Concealm ent tolls the lim itations period in this case because the fraud was concealed until April 23, 20 0 8, when Plaintiffs claim Gold divulged the fraud during a proceeding on the record before the United States Tax Court. See, Plaintiffs Letter brief, August 14, 20 14 [Dkt. 89]. The Court rejects this argum ent. As noted by Defendant Charney in their supplem ental subm ission of August 19, 20 14, Edwin filed an action in the Circuit Court for the 15 th J udicial Circuit in an d for Palm Beach County, Florida under Case No. CA0 20 0 5780 8AH in the m atter of Edwin R. J onas, III v. Linda B. J onas, individually and as trustee of constructive trust; Nancy D. Gold, individually; an d Adler, Sacharow, Gold, Taylor, Keyser & Hagner, P.C.. See, Def. Charny Letter Brief, August 19, 20 14, Ex. A [Dkt. No. 91]. The Palm Beach County action was served on Decem ber 8 , 20 0 4. Id. The Secon d Am ended Com plaint (Revised) of Edwin J onas in Palm Beach County, Florida alleges that J onas learned of the extrinsic fraud of Gold in connection with the trust assets recently and after the judgm ents were dom esticated in Florida. See id., Ex. A., Palm Beach County Second Am ended Com plaint, ¶7. The allegations m ade in the Florida action dem onstrate knowledge by Plaintiffs as early as Decem ber 8 , 20 0 4. 12 As here, the Palm Beach County Com plaint alleges breach of fiduciary duty and negligence related to the constructive trust, and the adm inistration of the constructive trust against Gold and Linda. The Court finds that J onas had, at the very least, the requisite awareness of the alleged fraud by Defendants Gold and Charny well before 12 The Court takes judicial notice of the Palm Beach County complaint. Jonas specifically mentions, in Paragraphs 36-39 of the Amended Complaint, Linda s attempts at domestication of the New Jersey Order in Florida. Thus, Jonas litigation in Florida is relied upon on the face of the Amended Complaint. In addition, Jonas Palm Beach County complaint is attached as an exhibit in support of summary judgment on the August 19, 2014 letter brief of Defendant Charny. See, Ex. A, [Dkt. No. 91]. 20 20 0 8 . See, Lapka v. Porter Hayden Co., 162 N.J . 545 (20 0 0 ). J onas alleged sim ilar claim s in his cross m otion before the New J ersey Superior Court and the Palm Beach County Court. As a result, Plaintiffs argum ents that they were precluded from filing sooner because the fraud was concealed are unavailing; J onas New J ersey cross m otion and the Palm Beach County Com plaint both dem onstrate sufficient awareness of the alleged m ishandling of the constructive trust. 13 Plaintiffs claim s in this regard are tim e barred. B. Co u n ts II an d III Plaintiffs claim s of breach of fiduciary duty against Lin da (Count II) and Gold (Count III) are dism issed as tim e-barred and for the sam e reasons set forth as to Counts I and II under Rooker-Feldm an. A claim for breach of fiduciary duty, which has a six year statute of lim itations, com m ences to run at the point the plaintiff has actual or constructive knowledge of the 13 The Court rejects Plaintiffs argument that the statute of limitations should be equitably tolled under the doctrine of fraudulent concealment. Equitable tolling is an extraordinary remedy that is applied when a plaintiff has been prevented from filing in a timely manner due to sufficiently inequitable circumstances. Santos v. United States, 559 F.3d 189, 197 (3d Cir. 2009) (quoting Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999)). The remedy applies: (1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum. Id. (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994)). Plaintiffs are not entitled to application of the doctrine under the circumstances of this case because they cannot show that the defendants' conduct prevented him from recognizing the validity of [her] claim within the limitations period. Kliesh v. Select Portfolio Servicing, Inc., 419 Fed. App'x 268, 271 (3d Cir. 2011) (quoting Mathews v. Kidder, Peabody & Co., 260 F.3d 239, 256 (3d Cir. 2001)) (alteration in original). To the contrary, Plaintiffs vast litigation history in courts of multiple states and various jurisdictions demonstrates that they have taken every opportunity to seek relief from the New Jersey Superior Court orders under every possible theory. Plaintiffs averments in the New Jersey Superior Court and in the Florida and Montana courts, and in the United States Tax Court and Bankruptcy courts leaves little doubt that Plaintiffs chief complaint from the time that the New Jersey Superior Court ordered that Jonas place security into a constructive trust has been fraud, misappropriation, and negligence on behalf of Linda and her attorneys. Such notice does not warrant the limited application of equitable tolling. 21 breach. Flem ing Cos. v. Thriftway Medford Lakes, 913 F.Supp. 8 37 (D.N.J . 1995) (citing Zola v. Gordon, 685 F.Supp. 354, 374 (S.D.N.Y. 1988)). A plaintiff has actual or constructive knowledge of a cause of action for breach of fiduciary duty when the plaintiff learns, or reasonably should learn, of the existence of the state of facts which m ay equate in law with the cause of action. Id. (citing Burd v. New J ersey Tel. Co., 76 N.J . 284, 386 A.2d 1310 , 1314 (1978)). Plaintiffs claim of fiduciary duty is tim e-barred for the sam e reasons set forth infra. with respect to Counts I and II. Plaintiffs claim is barred under Rooker-Feldm an because it is inextricably intertwined with the divorce proceeding. Attorney Gold s actions in the divorce proceedings, with respect to the constructive trust created by the New J ersey Superior Court, are related to the state action. Likewise, Lin da s usage of the funds from the constructive trust are inextricably intertwined with the Superior Court action. In addition, for the reasons expressed herein, Plaintiffs claim s are barred by the Dom estic Relations Exception to federal subject m atter jurisdiction. See, infra., p.13, n.10 . Plaintiffs also fail to state a claim upon which relief can be granted. As a result, Gold s and Linda s m otions to dism iss are granted. C. Co u n ts IV & V Plaintiffs claim s in Count IV alleges fraud and conspiracy to com m it fraud against Linda an d Gold. Count V alleges conversion, m isappropriation, and em bezzlem ent against all Defendants. These claim s are dism issed as tim e-barred and pursuant to the Rooker-Feldm an doctrine for the sam e reasons set forth herein as to Counts I and II. In addition, Plaintiffs claim s are barred by the Dom estic Relations Exception to federal subject m atter jurisdiction. 22 D . Co u n t VII Plaintiffs claim s in Count VII allege a violation of 42 U.S.C. §1983 by Defendants Gold, Adler, and Charny. Plaintiffs claim s against Gold and Chary under 42 U.S.C. §198 3 are dism issed because neither Gold nor Chasrny are state actors under §1983 and because, as previously discussed infra., the claim s are tim e barred. To state a cognizable claim under Section 1983, Plaintiffs m ust allege a deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law. Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 20 0 8) (citing Kneipp v. Tedder, 95 F.3d 1199, 120 4 (3d Cir. 1996)). Here, Plaintiffs m ust dem onstrate two essential elem ents under Section 1983: (1) that the Plaintiffs were deprived of a right or privilege secured by the Constitution or laws of the United States and (2) that Plaintiffs were deprived of their rights by a person acting under the color of state law. William s v. Borough of West Chester, Pa, 891 F.2d 458, 464 (3d Cir. 1989). Even if Plaintiffs could satisfy the first elem ent, Plaintiffs cannot dem onstrate that they were deprived of their rights by a person acting under the color of state law. The m anagem ent of a trust account does not necessarily turn a private attorney into a State actor. See Greening v. Moran, 739 F. Supp. 1244 (D. Ariz. 1990 ) (citing National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 10 9 S.Ct. 454, 10 2 L.Ed.2d 469 (1988 ). Although som e courts have found that public defender attorneys are state actors when handling adm in istrative functions such as hiring and firing, the reach of §198 3 does not extend to acts m ade as attorneys on behalf of a defendant. Polk County 23 v. Dodson, 454 U.S. 312, 325 (1981). As a result, Gold and Charny are not a state actors under 42 U.S.C. §1983. See Tarkanian, 488 U.S. 179, 10 9 S.Ct. 454. In addition, the statute of lim itations has passed for J onas constitutional claim s against Gold and Charny pursuant to 42 U.S.C. §1983. See Wallace v. Kato, 549 U.S. 38 4, 38 7 (20 0 7) (explaining that in a §1983 claim , the Statute of Lim itations is that for personal-in jury torts); Cito v. Bridgewater Twp. Police Dept., 8 92 F. 2d 23, 25 (3d Cir. 198 9) (in New J ersey, the Statute of Lim itations is two years for a tort); N.J .S.A. 2A:14-2 (two years for tort). The Superior Court Orders of which Plaintiffs com plain were entered, according to Plaintiffs' Am ended Com plaint, on J anuary 12, 1996. See Am . Com pl., Count III. Sim ilar claim s were m ade by J onas in connection with the divorce on August 29, 1996, March 19, 1999, and May, 20 0 6; nam ely, that Ms. Gold acted in conspiracy with Linda, and m ade false representations to J udge Page. See id., at Count IV. Under any of these tim e-lines, J on as claim s under 42 U.S.C. §1983 are tim e-barred and this claim is dism issed pursuant to Fed. R. Civ. 12(b)(1) and (6) and sum m ary judgm ent is granted in favor of Charny. E. Lin d a s Cro s s Mo tio n fo r Plain tiffs Ed w in R. Jo n as an d Bla cktail Mo u n tain Ran ch to be d e cla re d ve xatio u s litigan ts . Linda seeks to have J onas declared a vexatious litigant and asks that J onas be enjoined from filing future litigation in this Court. The Third Circuit cautions that an injunction against a vexatious litigant should not be im posed by a court without prior notice an d som e occasion to respond. Gagliardi v. McWilliam s, 8 34 F.2d 8 1, 8 3 (3d Cir. 198 7). Generally, courts are reluctant to curtail a litigant s right to pursue future litigation. However, when a litigant abuses the courts, especially for the purpose of 24 harassing a party, the Court m ay im pose an injunction. Such an injunction m ay be im posed pursuant to the All Writs Act, 28 U.S.C. § 1651 (1982), or pursuant to Federal Rule 11 under the clause for sanctions perm itting other appropriate relief which the court deem s just an d proper. Gagliardi, 834 F.2d at 83. J onas has already been declared vexatious in other jurisdictions and ordered to pay Linda s costs and attorneys fees. See J onas v. J onas, 13-CV-90 , 20 14 WL 3891328 (D. Mont. Aug. 7, 20 14); J onas v. J onas, 371 Mont. 113, 120 , 30 8 P.3d 33 (Mont. 20 13) ( We accordingly con clude that Edwin's appeal is vexatious and was filed for the purposes of delay [ ¦] we conclude that the costs and fees assessed should be solely levied against Edwin [and] rem and for a determ ination an d assessm ent of costs and attorney fees reasonably incurred on appeal. ) J onas history of abusive litigation is not only well docum ented, but also troubling. [A] continuous pattern of groundless an d vexatious litigation can, at som e point, support an order against further filings of com plaints without the perm ission of the court. In Re Oliver, 682 F.2d 443, 446 (3d Cir. 1982). However, such an [injunctive] order is an extrem e rem edy and should be used only in exigent circum stances[.] Id. at 445. Given that J onas was not perm itted an opportunity to fully oppose the m otion at the hearing, at this tim e, the m otion is denied without prejudice. IV. Co n clu s io n For the reasons stated herein, and those set forth on the record during the hearing in this m atter on J uly 29, 20 14, Defendant Lin da J onas m otion to dism iss is granted, Defendant Gold s m otion to dism iss is granted, and Defen dant Charny s m otion 25 for sum m ary judgm ent is granted. Plaintiffs m otions to strike and for sum m ary judgm ent are denied. An appropriate Order shall issue. Dated: Septem ber 30 , 20 14 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 26
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