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March 5, 2003


The opinion of the court was delivered by: Robert W. Sweet, District Judge


Defendant Hoffman & Pollok, now known as Hoffman Pollok & Pickholz LLP ("HPP") has moved pursuant to Rule 12(b)6 to dismiss the complaint of pro se plaintiff Steven Jude Hoffenberg ("Hoffenberg") alleging fraud and malpractice against HPP, his former law firm. For the reasons set forth below, the motion is granted.

Prior Proceedings

Hoffenberg filed his complaint on April 25, 2000, alleging diversity jurisdiction arising out of his incarceration in the Federal Correctional Institute in Bradford, Pennsylvania.

Giving the complaint a fair reading, it appears that it alleges first that HPP issued fraudulent billing to him for services that were never provided (Compl. at ¶¶ 16, 43-49); second that HPP fraudulently induced Hoffenberg to "write a letter about the over one million dollars advanced to HP by Pro Se," which appears to refer to a letter dated May 29, 1996 in which Hoffenberg released all claims he had against HPP. Id. at ¶ 18; third, that HPP committed malpractice and breached their fiduciary duty not only throughout the course of HPP's representation of Hoffenberg, Id. at ¶ 41, but also in connection with the monies set aside for legal services by a consent judgment entered against Hoffenberg. The complaint alleges that HPP took a $450,000 set aside from a third party and colluded with a third party, forcing Hoffenberg to enter into an adverse agreement for HPP's benefit. Id. at ¶¶ 1942.

On September 9, 2001, Hoffenberg was granted an additional forty-five days to serve HPP. A letter from HPP of June 13, 2000 acknowledging receipt of a complaint from Hoffenberg was addressed to the judge to whom the action had previously been assigned. An affidavit of service dated in June 2000, was received on October 3, 2001. On November 14, 2001, the action was dismissed in error as a result of overlooking the recently received June 2000 affidavit. On May 14, 2002, the Second Circuit vacated the dismissal and remanded the case to consider whether service was proper. Hoffenberg v. Hoffman Pollok & Pickholz. LLP, No. 01-9427 (2d Cir. 2002). HPP in its instant motion acknowledges the efficacy of service. On May 20, 2002, Hoffenberg filed a motion to recuse this Court which was denied on October 30, 2002.

Hoffenberg has been a party to actions in this district since February 1993 when the Securities and Exchange Commission ("SEC") commenced a civil action against him and others. SEC v. Towers Fin. Corp., No. 93 CIV. 0744 (WK) (AJP), 1996 WL 406685, at *1 (S.D.N.Y. Mar. 26, 1996). Hoffenberg was formerly Chief Executive Officer ("CEO") and Chairman of the Board of Towers Financial Corporation ("Towers"). Towers filed for bankruptcy in March 1993. In October 1994, the Bankruptcy Trustee for Towers obtained a civil judgment against Hoffenberg and other officers of Towers on consent in the amount of $400,000,000, plus a separate judgment in the amount of $8,050,000.

On February 17, 1993, Hoffenberg and others agreed to a preliminary injunction in the SEC action that enjoined him from dissipating assets, exempting Hoffenberg's living expenses and reasonable attorney's fees. In October 1994, the SEC obtained a final judgment against Hoffenberg incorporating the terms of the 1993 asset freeze.

A criminal action was commenced against Hoffenberg and others for conspiracy during 1991 and 1992 to obstruct the SEC's investigation, United States v. Hoffenberg, Nos. 94 Cr. 213 (RWS), 95 Cr. 321 (RWS), 1997 WL 96563, at *6 (S.D.N.Y. Mar. 5, 1997). Hoffenberg pled guilty on April 20, 1995 to five criminal counts: (1) conspiracy to violate the securities laws by fraudulently selling securities; (2) mail fraud; (3) conspiracy to obstruct justice; (4) tax evasion; and (5) mail and wire fraud. His motion to withdraw this plea was subsequently denied. United States v. Hoffenberg, 169 F.R.D. 267, 268 (S.D.N.Y. 1996). He received a sentence of 240 months in prison and was required to make restitution of $475,157,340, a judgment which was affirmed. United States v. Hoffenberg, 164 F.3d 620 (2d Cir. 1998)

In December 1999, Hoffenberg, having sought a review of his conviction under 28 U.S.C. § 2255, filed a motion to recuse this Court on the basis of a conflict of interest, which was denied as was the petition for review. Hoffenberg v. United States, 2000 WL 1523142, at *1 (S.D.N.Y. Oct. 13, 2000). The Honorable Thomas P. Griesa, in reviewing Hoffenberg's § 2255 motion, held that the "motion raised no constitutional grounds for attacking Hoffenberg's criminal convictions that could properly be construed as a § 2255 motion." Id. (citing Hoffenberg v. United States, No. 00 Civ. 1686 (TPG) (S.D.N.Y. March 6, 2000)). On August 8, 2000, Hoffenberg filed another recusal motion in connection with his effort to review his convictions under 28 U.S.C. § 144, 455, which was denied on October 13, 2000. The court directed that "any appeal from this order, or from my order of January 28, 2000 denying his prior recusal motion, would not be taken in good faith." Hoffenberg, 2000 WL 1523142, at *3.

In December 2000, Hoffenberg filed a legal malpractice action against Daniel Meyers, a court-appointed attorney who represented Hoffenberg from April 1996 to March 1997, following HPP's withdrawal. The action alleged that Meyers had failed to achieve a withdrawal of Hoffenberg's guilty plea and to challenge the prior $450,000 set aside in favor of HPP which was contained in the consent judgment. Hoffenberg v. Meyers, No. 99 CIV. 4674 RWS, 2002 WL 57252, at *1. Meyers' motion for summary judgment dismissing Hoffenberg's amended complaint was granted on January 16, 2002.


The following recital of background facts are gleaned from the court proceedings and the submissions of HPP and do not constitute findings of fact relied upon in the substantive discussion which follows this section.

On April 19, 1993, Hoffenberg executed a formal retainer agreement with HPP, for the purposes of his representation in both pending and future civil and criminal matters against him. Since Hoffenberg's assets had been frozen by the SEC, the funding ...

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