The Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. § 201(0), permits States and their political subdivisions to compensate their employees for overtime work by granting them compensatory time in lieu of cash payment. If the employees do not use their accumulated compensatory time, the employer must pay cash compensation under certain circumstances. §§207(0)(3)-(4). Fearing the consequences of having to pay for accrued compensatory time, Harris County adopted a policy requiring its employees to schedule time off in order to reduce the amount of accrued time. Petitioners, county deputy sheriffs, sued, claiming that the FLSA does not permit an employer to compel an employee to use compensatory time in the absence of an agreement permitting the employer to do so. The District Court granted petitioners summary judgment and entered a declaratory judgment that the policy violated the FLSA. The Fifth Circuit reversed, holding that the FLSA did not speak to the issue and thus did not prohibit the county from implementing its policy.
has violated § 207. Two other features of the FLSA support this interpretation: Employers are permitted to decrease the number of hours that employees work, and employers also may cash out accumulated compensatory time by paying the employee his regular hourly wage for each hour accrued. The county's policy merely involves doing both of these steps at once. A Department of Labor opinion letter taking the position that an employer may compel the use of compensatory time only if the employee has agreed in advance to such a practice is not entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837. Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference. They are "entitled to respect," but only to the extent that they are persuasive, Skidmore v. Swift & Co., 323 U. S. 134, 140, which is not the case here. Chevron deference does apply to an agency interpretation contained in a regulation, but nothing in the Department of Labor's regulation even arguably requires that an employer's compelled use policy must be included in an agreement. And deference to an agency's interpretation of its regulation is warranted under Auer v. Robbins, 519 U. S. 452, 461, only when the regulation's language is ambiguous, which is not the case here. Pp. 582-588.
THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and SOUTER, JJ., joined, and in which SCALIA, J., joined except as to Part III. SOUTER, J., filed a concurring opinion, post, p. 589. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 589. STEVENS, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 592. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined, post, p. 596.
Matthew D. Roberts argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Waxman, Deputy Solicitor General Kneedler, Jonathan E. Nuechterlein, Allen H. Feldman, and Edward D. Sieger.
Michael P. Fleming argued the cause for respondents.
JUSTICE THOMAS delivered the opinion of the Court. Under the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. § 201 et seq. (1994 ed. and Supp. III), States and their political subdivisions may compensate their employees for overtime by granting them compensatory time or "comp time," which entitles them to take time off work with full pay. § 207(0). If the employees do not use their accumulated compensatory time, the employer is obligated to pay cash compensation under certain circumstances. §§ 207(0)(3)-(4). Fearing the fiscal consequences of having to pay for accrued compensatory time, Harris County adopted a policy requiring its employees to schedule time off in order to reduce the amount of accrued compensatory time. Employees of the Harris County Sheriff's Department sued, claiming that the FLSA prohibits such a policy. The Court of Appeals rejected their claim. Finding that nothing in the FLSA or its implementing regulations prohibits an employer from compelling the use of compensatory time, we affirm.
*Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, Deborah Greenfield, James B. Coppess, and Laurence Gold; for the International Association of Fire Fighters by Thomas A. Woodley; and for the National Association of Police Organizations by Stephen R. McSpadden.
Jeffrey A. Hollingsworth filed a brief for Spokane Valley Fire Protection District No.1 as amicus curiae urging affirmance.
for the excess hours at a rate not less than 1lf2 times their regular hourly wage. § 207(a)(1). Although this requirement did not initially apply to public-sector employers, Congress amended the FLSA to subject States and their political subdivisions to its constraints, at first on a limited basis, see Fair Labor Standards Amendments of 1966, Pub. L. 89-601, § 102(b), 80 Stat. 831 (extending the FLSA to certain categories of state and local employees), and then more broadly, see Fair Labor Standards Amendments of 1974, Pub. L. 93-259, §§ 6(a)(1)-(2), 88 Stat. 58-59 (extending the FLSA to all state and local employees, save elected officials and their staffs). States and their political subdivisions, however, did not feel the full force of this latter extension until our decision in Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985), which overruled our holding in National League of Cities v. Usery, 426 U. S. 833 (1976), that the FLSA could not constitutionally restrain traditional governmental functions.
In the months following Garcia, Congress acted to mitigate the effects of applying the FLSA to States and their political subdivisions, passing the Fair Labor Standards Amendments of 1985, Pub. L. 99-150, 99 Stat. 787. See generally Moreau v. Klevenhagen, 508 U. S. 22, 26 (1993). Those amendments permit States and their political subdivisions to compensate employees for overtime by granting them compensatory time at a rate of 1lf2 hours for every hour worked. See 29 U. S. C. § 207(0)(1). To provide this form of compensation, the employer must arrive at an agreement or understanding with employees that compensatory time will be granted instead of cash compensation.1 §207(0)(2); 29 CFR § 553.23 (1999).
1 Such an agreement or understanding need not be formally reached and memorialized in writing, but instead can be arrived at informally, such as when an employee works overtime knowing that the employer rewards overtime with compensatory time. See 29 CFR § 553.23(c)(1) (1999).
The FLSA expressly regulates some aspects of accrual and preservation of compensatory time. For example, the FLSA provides that an employer must honor an employee's request to use compensatory time within a "reasonable period" of time following the request, so long as the use of the compensatory time would not "unduly disrupt" the employer's operations. § 207(0)(5); 29 CFR § 553.25 (1999). The FLSA also caps the number of compensatory time hours that an employee may accrue. After an employee reaches that maximum, the employer must pay cash compensation for additional overtime hours worked. §207(0)(3)(A). In addition, the FLSA permits the employer at any time to cancel or "cash out" accrued compensatory time hours by paying the employee cash compensation for unused compensatory time. § 207(0)(3)(B); 29 CFR § 553.26(a) (1999). And the FLSA entitles the employee to cash payment for any accrued compensatory time remaining upon the termination of employment. § 207(0)(4).
Petitioners are 127 deputy sheriffs employed by respondents Harris County, Texas, and its sheriff, Tommy B. Thomas (collectively, Harris County). It is undisputed that each of the petitioners individually agreed to accept compensatory time, in lieu of cash, as compensation for overtime.
"Absent such an agreement, it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time." Opinion Letter from Dept. of Labor, Wage and Hour Div. (Sept. 14, 1992), 1992 WL 845100 (Opinion Letter).
After receiving the letter, Harris County implemented a policy under which the employees' supervisor sets a maximum number of compensatory hours that may be accumulated. When an employee's stock of hours approaches that maximum, the employee is advised of the maximum and is asked to take steps to reduce accumulated compensatory time. If the employee does not do so voluntarily, a supervisor may order the employee to use his compensatory time at specified times.
at 247-251. We granted certiorari because the Courts of Appeals are divided on the issue.2 528 U. S. 926 (1999).
"shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency."
2 Compare, e. g., Collins v. Lobdell, 188 F.3d 1124, 1129-1130 (CA9 1999) (upholding employer's policy compelling compensatory time use), with Heaton v. Moore, 43 F.3d 1176, 1180-1181 (CA8 1994) (striking down policy compelling compensatory time use), cert. denied sub nom. Schriro v. Heaton, 515 U. S. 1104 (1995).
3 We granted certiorari on the question" '[w]hether a public agency governed by the compensatory time provisions of the Fair Labor Standards Act of 1938, 29 U. S. C. §207(o), may, absent a preexisting agreement, require its employees to use accrued compensatory time?'" 528 U. S. 926, 927 (1999). As such, we decide this case on the assumption that no agreement or understanding exists between the employer and employees on the issue of compelled use of compensatory time.
We find this reading unpersuasive. We accept the proposition that "[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode." Raleigh & Gaston R. Co. v. Reid, 13 Wall. 269, 270 (1872). But that canon does not resolve this case in petitioners' favor. The "thing to be done" as defined by § 207(0)(5) is not the expenditure of compensatory time, as petitioners would have it. Instead, § 207(0)(5) is more properly read as a minimal guarantee that an employee will be able to make some use of compensatory time when he requests to use it. As such, the proper expressio unius inference is that an employer may not, at least in the absence of an agreement, deny an employee's request to use compensatory time for a reason other than that provided in § 207(0)(5). The canon's application simply does not prohibit an employer from telling an employee to take the benefits of compensatory time by scheduling time off work with full pay.
4JUSTICE STEVENS asserts that the parties never make this argument.
See post, at 593, n. 1 (dissenting opinion). Although the United States and petitioners fail to make their arguments in Latin, we believe a fair reading of the briefs reveals reliance upon the expressio unius canon. See Brief for United States as Amicus Curiae 16 ("Congress ... identified only one circumstance in which an employer may exercise some measure of control: when an employee requests the use of compensatory time, the employer must allow such use within a reasonable period of time except where the use would 'unduly disrupt' the employer's operations. 29 U. S. C. 207(0)(5). If Congress had intended for employers to exercise unilateral control over the use of compensatory time in other respects as well, it presumably would have so provided"); Reply Brief for Petitioners 4-6 (contending that the FLSA explicitly provides methods for reducing compensatory time and thus other means may not be used).
"Compensatory time cannot be used as a means to avoid statutory overtime compensation. An employee has the right to use compensatory time earned and must not be coerced to accept more compensatory time than an employer can realistically and in good faith expect to be able to grant within a reasonable period of his or her making a request for use of such time." 29 CFR § 553.25(b) (1999).
tory time exception enacted by Congress in the wake of Garcia would become a nullity when employees who refuse to use compensatory time reach the statutory maximums on accrual. Petitioners' position would convert § 207(0)(3)(A)'s shield into a sword, forcing employers to pay cash compensation instead of providing compensatory time to employees who work overtime.
At bottom, we think the better reading of § 207(0)(5) is that it imposes a restriction upon an employer's efforts to prohibit the use of compensatory time when employees request to do so; that provision says nothing about restricting an employer's efforts to require employees to use compensatory time. Because the statute is silent on this issue and because Harris County's policy is entirely compatible with § 207(0)(5), petitioners cannot, as they are required to do by 29 U. S. C. § 216(b), prove that Harris County has violated §207.
5 JUSTICE STEVENS does not dispute this argument. In fact, he expressly endorses half of it. See post, at 594, 595 (employer free to cash out compensatory time). Instead, JUSTICE STEVENS claims that we "stumbl[e]" by failing to identify "the relevant general rule" that employees have "a statutory right to compensation for overtime work payable in cash." Post, at 592. We fail to do so only because the general rule is not relevant to this case. Both parties to this case agreed that compensatory time would be provided in lieu of cash and thus § 207(a)'s general requirement of cash compensation is supplanted. Petitioners and the United States do assert that the requirement of cash compensation is relevant by analogy. They claim that an employer cannot compel compensatory time use because compensatory time should be treated like employee cash in the bank-that is, under the exclusive control of the employee. But this analogy is wholly inapt under the very terms of the FLSA. The FLSA grants significant control to the employer over accrued compensatory time. For example, the employer is free to buyout compensatory time at any time by providing cash compensation. §207(0)(3)(B); 29 CFR § 553.27(a) (1999). Additionally, an employer is free to deny any request to use compensatory time when such use would unduly disrupt the employer's operations. § 207(0 )(5)(B); 29 CFR § 553.25(d) (1999). The cash analogy is therefore directly undermined by unambiguous provisions of the statute.
effect to an agency's regulation containing a reasonable interpretation of an ambiguous statute. Id., at 842-844.
Here, however, we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of lawdo not warrant Chevron-style deference. See, e. g., Reno v. Koray, 515 U. S. 50, 61 (1995) (internal agency guideline, which is not "subject to the rigors of the Administrative Procedur[e] Act, including public notice and comment," entitled only to "some deference" (internal quotation marks omitted)); EEOC v. Arabian American Oil Co., 499 U. S. 244, 256-258 (1991) (interpretative guidelines do not receive Chevron deference); Martin v. Occupational Safety and Health Review Comm'n, 499 U. S. 144, 157 (1991) (interpretative rules and enforcement guidelines are "not entitled to the same deference as norms that derive from the exercise of the Secretary's delegated lawmaking powers"). See generally 1 K. Davis & R. Pierce, Administrative Law Treatise § 3.5 (3d ed. 1994). Instead, interpretations contained in formats such as opinion letters are "entitled to respect" under our decision in Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), but only to the extent that those interpretations have the "power to persuade," ibid. See Arabian American Oil Co., supra, at 256-258. As explained above, we find unpersuasive the agency's interpretation of the statute at issue in this case.
out of compensatory time so long as these provisions are consistent with [§ 207(0)]." 29 CFR § 553.23(a)(2) (1999) (emphasis added). Nothing in the regulation even arguably requires that an employer's compelled use policy must be included in an agreement. The text of the regulation itself indicates that its command is permissive, not mandatory.
Seeking to overcome the regulation's obvious meaning, the United States asserts that the agency's opinion letter interpreting the regulation should be given deference under our decision in Auer v. Robbins, 519 U. S. 452 (1997). In Auer, we held that an agency's interpretation of its own regulation is entitled to deference. Id., at 461. See also Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945). But Auer deference is warranted only when the language of the regulation is ambiguous. The regulation in this case, however, is not ambiguous-it is plainly permissive. To defer to the agency's position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation. Because the regulation is not ambiguous on the issue of compelled compensatory time, Auer deference is unwarranted.
As we have noted, no relevant statutory prOVISIOn expressly or implicitly prohibits Harris County from pursuing its policy of forcing employees to utilize their compensatory time. In its opinion letter siding with the petitioners, the Department of Labor opined that "it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time." Opinion Letter (emphasis added). But this view is exactly backwards. Unless the FLSA prohibits respondents from adopting its policy, petitioners cannot show that Harris County has violated the FLSA. And the FLSA contains no such prohibition. The judgment of the Court of Appeals is affirmed.
I join the opinion of the Court on the assumption that it does not foreclose a reading of the Fair Labor Standards Act of 1938 that allows the Secretary of Labor to issue regulations limiting forced use.
I join the judgment of the Court and all of its opinion except Part III, which declines to give effect to the position of the Department of Labor in this case because its opinion letter is entitled only to so-called "Skidmore deference," see Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). Skidmore deference to authoritative agency views is an anachronism, dating from an era in which we declined to give agency interpretations (including interpretive regulations, as opposed to "legislative rules") authoritative effect. See EEOC v. Arabian American Oil Co., 499 U. S. 244, 259 (1991) (SCALIA, J., concurring in part and concurring in judgment). This former judicial attitude accounts for that provision of the 1946 Administrative Procedure Act which exempted "interpretative rules" (since they would not be authoritative) from the notice-and-comment requirements applicable to rulemaking, see 5 U. S. C. § 553(b)(A).
type deference can be inapplicable for only three reasons: (1) the statute is unambiguous, so there is no room for administrative interpretation; (2) no interpretation has been made by personnel of the agency responsible for administering the statute; or (3) the interpretation made by such personnel was not authoritative, in the sense that it does not represent the official position of the expert agency. All of these reasons preclude Skidmore deference as well. The specific example of the inapplicability of Chevron that JUSTICE BREYER posits, viz., "where one has doubt that Congress actually intended to delegate interpretive authority to the agency," post, at 597, appears to assume that, after finding a statute to be ambiguous, we must ask in addition, before we can invoke Chevron deference, whether Congress intended the ambiguity to be resolved by the administering agency. That is not so. Chevron establishes a presumption that ambiguities are to be resolved (within the bounds of reasonable interpretation) by the administering agency. The implausibility of Congress's leaving a highly significant issue unaddressed (and thus "delegating" its resolution to the administering agency) is assuredly one of the factors to be considered in determining whether there is ambiguity, see MC! Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994), but once ambiguity is established the consequences of Chevron attach.
Drug Administration's "longstanding interpretation of the statute," reflected in no-action notice published in the Federal Register).
"Petitioners complain that the Secretary's interpretation comes to us in the form of a legal brief; but that does not, in the circumstances of this case, make it unworthy of deference. The Secretary's position is in no sense a 'post hoc rationalizatio[n]' advanced by an agency seeking to defend past agency action against attack, Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212 (1988). There is simply no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question." Auer v. Robbins, 519 U. S. 452, 462 (1997).
I nonetheless join the judgment of the Court because, for the reasons set forth in Part II of its opinion, the Secretary's position does not seem to me a reasonable interpretation of the statute.
Because the disagreement between the parties concerns the scope of an exception to a general rule, it is appropriate to begin with a correct identification of the relevant general rule. That rule gives all employees protected by the Fair Labor Standards Act of 1938 a statutory right to compensation for overtime work payable in cash, whether they work in the private sector of the economy or the public sector. 29 U. S. C. §§ 206, 207 (1994 ed. and Supp. III). In 1985, Congress enacted an exception to that general rule that permits States and their political subdivisions to use compensatory time instead of cash as compensation for overtime. The exception, however, is not applicable unless the public employer first arrives at an agreement with its employees to substitute that type of compensation for cash. § 207(0); 29 CFR § 553.23 (1999). As I read the statute, the employer has no right to impose compensatory overtime payment upon its employees except in accordance with the terms of the agreement authorizing its use.
The Court stumbles because it treats § 207's limited and conditional exception as though it were the relevant general rule. The Court begins its opinion by correctly asserting that public employers may "compensate their employees for overtime by granting them compensatory time or 'comp time,' which entitles them to take time off work with full pay." Ante, at 578. It is not until it reaches the bottom of the second page, however, that the Court acknowledges that what appeared to be the relevant general rule is really an exception from the employees' basic right to be paid in cash. Ante, at 579.
of noncash compensation may be imposed on those employees without their consent. Because their consent is a condition without which the employer cannot qualify for the exception from the general rule, it seems clear to me that their agreement must encompass the way in which the compensatory time may be used.
In an effort to avoid addressing this basic point, the Court mistakenly characterizes petitioners' central argument as turning upon the canon expressio unius est exclusio alterius.1 According to the Court, petitioners and the United States as amicus curiae contend that because employees are granted the power under the Act to use their compensatory time subject solely to the employers' ability to make employees wait a "reasonable time" before using it, "all other methods of spending compensatory time are precluded." Ante, at 583. The Court concludes that expressio unius does not help petitioners because the "thing to be done" as prescribed by the statute (and because of which all other "things" are excluded) is simply a guarantee that employees will be allowed to make some use of compensatory time upon request, rather than an open-ended promise that employees will be able to choose (subject only to the "reasonable time" limitation) how to spend it. Ibid.
1 It must be noted that neither petitioners' brief nor the brief for the United States as amicus curiae actually relies upon this canon. Indeed, the sole mention of it in either brief is in petitioners' statement of the case, in which petitioners refer in a single sentence to an argument made by the Court of Appeals for the Eighth Circuit in Heaton v. Moore, 43 F. 3d 1176 (1994) (rejecting compelled-use policy absent agreement to that effect), cert. denied sub nom. Schriro v. Heaton, 515 U. S. 1104 (1995).
ability and the use of comp time must be contained within an agreement. The "thing to be done" under the Act is for the parties to come to terms. It is because they have not done so with respect to the use of comp time here that the county may not unilaterally force its expenditure.
The Court is thus likewise mistaken in its insistence that under petitioners' reading, the comp time exception "would become a nullity" because employees could "forc[e] employers to pay cash compensation instead of providing compensatory time" for overtime work. Ante, at 585. Quite the contrary, employers can only be "forced" either to abide by the arrangements to which they have agreed, or to comply with the basic statutory requirement that overtime compensation is payable in cash.
Moreover, as the Court points out, ante, at 580, 584, even absent an agreement on the way in which comp time may be used, employers may at any time require employees to "cash out" of accumulated comp time, thereby readily avoiding any forced payment of comp time employees may accrue. § 207(o)(3)(B); 29 CFR § 553.26(a) (1999). Neither can it be said that Congress somehow assumed that the right to force employees to use accumulated comp time was to be an implied term in all comp time agreements. Congress specifically contemplated that employees might well reach the statutory maximum of accrued comp time, by requiring, in § 207(o)(3)(A), that once the statutory maximum is reached, employers must compensate employees in the preferred form-cash-for every hour over the limit.
"Absent such an agreement, it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time." Opinion Letter from Dept. of Labor, Wage and Hour Div. (Sept. 14, 1992), 1992 WL 845100.
2 I should add that I fully agree with JUSTICE BREYER'S comments on Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). See post, at 596-597 (dissenting opinion).
achieve precisely the outcome the county has all along claimed it wants.
JUSTICE SCALIA may well be right that the position of the Department of Labor, set forth in both brief and letter, is an "authoritative" agency view that warrants deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Ante, at 590 (opinion concurring in part and concurring in judgment). But I do not object to the majority's citing Skidmore v. Swift & Co., 323 U. S. 134 (1944), instead. And I do disagree with JUSTICE SCALIA'S statement that what he calls "Skidmore deference" is "an anachronism." Ante, at 589.
Skidmore made clear that courts may pay particular attention to the views of an expert agency where they represent "specialized experience," 323 U. S., at 139, even if they do not constitute an exercise of delegated lawmaking authority. The Court held that the "rulings, interpretations and opinions of" an agency, "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Id., at 140; see also Martin v. Occupational Safety and Health Review Comm'n, 499 U. S. 144, 157 (1991). As Justice Jackson wrote for the Court, those views may possess the "power to persuade," even where they lack the "power to control." Skidmore, supra, at 140.
deference is inapplicable-e. g., where one has doubt that Congress actually intended to delegate interpretive authority to the agency (an "ambiguity" that Chevron does not presumptively leave to agency resolution)-I believe that Skidmore nonetheless retains legal vitality. If statutes are to serve the human purposes that called them into being, courts will have to continue to pay particular attention in appropriate cases to the experience-based views of expert agencies.
I agree with JUSTICE STEVENS that, when "thoroughly considered and consistently observed," an agency's views, particularly in a rather technical case such as this one, "meri[t] our respect." Ante, at 595 (dissenting opinion). And, of course, I also agree with JUSTICE STEVENS that, for the reasons he sets forth, ante, at 592-594, the Labor Department's position in this matter is eminently reasonable, hence persuasive, whether one views that decision through Chevron's lens, through Skidmore's, or through both.


While a broker who carries stocks for a customer on margin may not be strictly a pledgee at common law, he is essentially a pledgee and not the owner of the stock. Markham v. Jaudon, 41 N.Y. 235, approved. Neither the right of the broker to repledge stock carried on margin for a customer nor his right to sell such stock for his protection when the margin is exhausted alters the relation of the parties, is inconsistent with the customer's ownership, or converts the broker into the owner of the stock.
A certificate of stock is not the property itself, but the evidence of the property in the shares, and, as one share of stock is not different in kind or quality from every other share of the same issue and company, the return of a different certificate, or the right to substitute one certificate for another of the same number of shares, is not a material change in the property right held by the broker for his customer.
A broker who turns over to a customer, upon demand and payment of advances, stock which he is carrying on margin for that customer, or certificates for an equal number of shares, does not make the customer a preferred creditor within the meaning of § 60a of the Bankrupt Law; in the absence of fraud or preferential transfer the broker has the right to continue to use his estate for the redemption of pledged stocks in order to comply with the valid demand of a customer for stocks carried for him on margin.
A payment by the broker to a customer on account of excess margins to which the customer is entitled and which is taken into consideration when the account is finally closed held, under the circumstances of this case, not to be a preferential payment within the meaning of 60a of the Bankrupt Law.
This case comes here upon a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit. The petitioner, Richardson, brought suit in the District Court of the United States for the Southern District of New York as trustee in bankruptcy of J. Francis Brown, against John M. Shaw and Alexander Davidson, respondents, to recover certain alleged preferences.
Brown, the bankrupt, was a stockbroker transacting business in Boston. The respondents, John M. Shaw and Alexander Davidson, were partners and stockbrokers, transacting business in New York as John M. Shaw & Company, and, as customers of Brown, they transacted business with him on speculative account for the purchase and sale of stocks on margin. The account was carried on in Brown's books in the name of "Royal B. Young, Attorney," as agent of Shaw & Company.
The transactions between Brown and Shaw & Company were carried on for several months, from February to June, 1903. A debit and credit account was opened February 10, when Shaw & Company deposited with Brown $500 as margin, which was credited to them on the account, and Brown purchased for them certain securities at a cost of $3,987.50, which was charged to them on the account.
"It is understood and agreed that all securities carried in this account or deposited to secure the same may be carried in our general loans and may be sold or bought at public or private sale, without notice, when such sale or purchase is deemed necessary by us for our protection. "
According to the agreement, the securities carried in this account or deposited to secure the same might be carried in Brown's general loans, and such securities were so pledged by him, and Young, as agent of Shaw & Company, was informed of the fact. The stocks were figured at the market price every day and statements rendered to Young.
The bankrupt, Brown, transacted much of his general business with Brown, Riley & Company, of Boston. He pledged his general securities with that company.
On June 24, 1903, Young, the agent of Shaw & Company, as above stated, learned of Brown's precarious financial condition, and demanded payment of $5,000 cash from Brown's agent, Fletcher. At that time the margins already paid by Shaw & Company exceeded the agreed ten percent, and Fletcher returned to them $5,000 of such margin.
to Shaw & Company, and a check was given by them, through the Beacon Trust Company, to the order of Brown, Riley & Company, for $34,919.62, and the securities to the value of $45,583.75 were turned over to them. None of the certificates of stock which Brown delivered to Shaw & Company were the identical certificates which they had delivered to Brown as margin. Two certain bonds, known as the "Shannon bonds," had been deposited with Brown.
Among the creditors (customers) of Brown on the final day of settlement there were a number of general customers upon transactions in purchase and sale of stocks by Brown as broker, similar to the transactions in the purchase and sale of stocks by Brown as broker for Shaw & Company.
On July 27, 1903, Brown made an assignment, and was adjudicated a bankrupt within four months, and petitioner in this case, Henry Arnold Richardson, was elected trustee.
It was conceded by plaintiff's counsel that it was the custom of the market to deliver shares from broker to customer of the same amount without regard to whether they were the identical shares received.
This suit was brought to recover the $5,000 paid to Shaw & Company June 24, 1903, which sum, it is alleged, was paid to them as excessive margins, and, it is alleged, enabled them to obtain a preference as one of the creditors of Brown. The second cause of action in the suit states that Shaw & Company are indebted to Brown's estate in the sum of $10,664.13, being the amount he transferred for their benefit, as above set forth.
At the close of the plaintiff's case, he requested to go to the jury upon the issue of defendants' knowledge of Brown's insolvency. The court held that no preference was shown, and directed a verdict for defendants. The judgment was affirmed. 147 F. 659, 665.
with Shaw & Company, being insolvent and dealing with several customers, as to each of whom he had pledged the stocks carried for them, and, under the understanding of the parties, being under obligation to each of them to redeem the stocks from the loan for which they were pledged, this obligation created a right of demanding the pledged stocks and securities on the part of each of the customers, which put the broker in the debtor class and the customers into the creditor class, so that, if the broker used his assets to carry out such obligation to a particular customer, whereby the latter was able to redeem his stock from such pledge upon payment only of the amount of his indebtedness to the broker, with the result that the broker could not carry out similar obligations to other customers in like situation, a preference is created under § 60 of the Bankrupt Act, and this, says the learned counsel in his brief, under any theory concerning the relation of broker and customer, is "the main proposition upon which we hang our appeal."
"The broker undertakes and agrees:"
"1. At once to buy for the customer the stocks indicated."
"2. To advance all the money required for the purchase beyond the ten percent furnished by the customer."
until notice is given by either party that the transaction must be closed. An appreciation in the value of the stocks is the gain of the customer, and not of the broker."
"4. At all times to have, in his name and under his control, ready for delivery, the shares purchased, or an equal amount of other shares of the same stock."
"5. To deliver such shares to the customer when required by him, upon the receipt of the advances and commissions accruing to the broker; or,"
"6. To sell such shares, upon the order of the customer, upon payment of the like sums to him, and account to the customer for the proceeds of such sale."
"Under this contract the customer undertakes--"
"1. To pay a margin of ten percent on the current market value of the shares."
"2. To keep good such margin according to the fluctuations of the market."
"3. To take the shares so purchased on his order whenever required by the broker, and to pay the difference between the percentage advanced by him and the amount paid therefor by the broker."
was, in spirit and in effect, if not technically and in form, a contract of pledge."
The case had been approved in other cases in New York, some of which are: Stewart v. Drake, 16 N.Y. 449; Stenton v. Jerome, 54 N.Y. 480; Baker v. Drake, 66 N.Y. 518; Gruman v. Smith, 81 N.Y. 25; Gillett v. Whiting, 120 N.Y. 402; Content v. Banner, 184 N.Y. 121; Douglas v. Carpenter, 17 App.Div. 329. And approved in other states: Cashman v. Root, 89 Cal. 373; Brewster v. Van Liew, 119 Ill. 554; Gilpin v. Howell, 5 Pa. 41; Wynkoop v. Seal, 64 Pa. 361; Esser v. Linderman, 71 Pa. 76.
The subject was fully considered in a case which leaves nothing to be added to the discussion, Skiff v. Stoddard, 63 Conn.198, in which the conclusions in Markham v. Jaudon were adopted and approved. These views have been very generally accepted as settled law by the text writers on the subject. 1 Dos Passos on Stockbrokers (2d ed.) 179-200; Jones, Pledges, § 496; Mechem, Agency, § 936.
"The broker acts in a threefold relation: first, in purchasing the stock, he is an agent; then, in advancing money for the purchase, he becomes a creditor, and finally, in holding the stock to secure the advances made, he becomes a pledgee of it. It does not matter that the actual possession of the stock was never in the customer. The form of a delivery of the stock to the customer, and a redelivery by him to the broker, would have constituted a strict, formal pledge. But this delivery and redelivery would leave the parties in precisely the same situation they are in when, waiving this formality, the broker retains the certificates as security for the advances."
money embraced in the speculation, if he acts honestly, faithfully, and prudently, the entire risk is upon the client. . . . To introduce a different rule would give opportunities for sharp practices and frauds, which the law should not invite."
The rule thus established by the courts of the state where such transactions are the most numerous, and which has long been adopted and generally followed as a settled rule of law, should not be lightly disturbed, and an examination of the cases and the principles upon which they rest leads us to the conclusion that in no just sense can the broker be held to be the owner of the shares of stock which he purchases and carries for his customer. While we recognize that the courts of Massachusetts have reached a different conclusion, and hold that the broker is the owner, carrying the shares upon a conditional contract of sale, and, while entertaining the greatest respect for the Supreme Judicial Court of that state, we cannot accept its conclusion as to the relation of broker and customer under the circumstances developed in this case. We say this, recognizing the difficulties which can be pointed out in the application of either rule.
At the inception of the contract, it is the customer who wishes to purchase stocks, and he procures the broker to buy on his account. As was said by Mr. Justice Bradley, speaking for the Court in Galigher v. Jones, 129 U. S. 193, 129 U. S. 198, a broker is but an agent and is bound to follow the directions of his principal, or give notice that he declines the agency.
manner he secured the privilege of selling when necessary for his protection.
The risk of the venture is entirely upon the customer. He profits if it succeeds; he loses if it fails. The broker gets out of the transaction, when closed in accordance with the understanding of the parties, his commission and interest upon the advances, and nothing else. That such was the arrangement between the parties is shown in the testimony of the broker's agent, who testified: "If these stocks carried for J.M. Shaw & Company made a profit, that profit belongs to Shaw & Company over and above what he owed us."
When Young, the agent of Shaw & Company, demanded the stocks, their right of ownership in them was recognized, and, while pledged, they were under the control of the broker, were promptly redeemed, and turned over to the customer. Consistently with the terms of the contract, as understood by both parties, the broker could not have declined to thus redeem and turn over the stock, and, when adjudicated a bankrupt, his trustee had no better rights, in the absence of fraud or preferential transfer, than the bankrupt himself. Security Warehousing Co. v. Hand, 206 U. S. 415, 206 U. S. 423; Thompson v. Fairbanks, 196 U. S. 516, 196 U. S. 526; Humphrey v. Tatman, 198 U. S. 91; York Mfg. Co. v. Cassell, 201 U. S. 344, 201 U. S. 352.
It is objected to this view of the relation of customer and broker that the broker was not obliged to return the very stocks pledged, but might substitute other certificates for those received by him, and that this is inconsistent with ownership on the part of the customer, and shows a proprietary interest of the broker in the shares; but this contention loses sight of the fact that the certificate of shares of stock is not the property itself, it is but the evidence of property in the shares. The certificate, as the term implies, but certifies the ownership of the property and rights in the corporation represented by the number of shares named.
"one share of stock is not different in kind or value from every other share of the same issue and company. They are unlike distinct articles of personal property which differ in kind and value, such as a horse, wagon, or harness. The stock has no earmark which distinguishes one share from another, so as to give it any additional value or importance; like grain of a uniform quality, one bushel is of the same kind and value as another."
Nor is the right to repledge inconsistent with ownership of the stock in the customer. Skiff v. Stoddard, 63 Conn. 216, 219; Ogden v. Lathrop, 65 N.Y. 158. It was obtained in the present case by a contract specifically made, and did not affect the right of the customer, upon settlement of the accounts, to require of the broker the redemption of the shares and their return in kind.
It is true that the right to sell for the broker's protection, which was not exercised in this case, presents more difficulty, and is one of the incongruities in the recognition of ownership in the customer; nevertheless it does not change the essential relations of the parties, and certainly does not convert the broker into what he never intended to be and for which he assumes no risk, and takes no responsibility in the purchase and carrying of shares of stock.
interpretation of the contract preserves as its distinctive feature the principal proposition that the customer purchases merely the right to have delivery to him in the future at his option, of stocks or securities at the price of the day of the agreement, and its corollary that the customer derives no right, title, or interest in the stocks or securities until final performance, the difficulties in the way of harmonizing the situation are bound to exist. The fundamental difficulty grows out of the necessary attempt in some way to transform the customer, who enjoys all the incidents and assumes all the risks of ownership, into a person who in fact has no right, title, or interest, and to create out of the broker, who enjoys none of the incidents of ownership, and assumes not a particle of its responsibility, a person clothed with a full title and an absolute ownership."
We reach the conclusion, therefore, that, although the broker may not be strictly a pledgee, as understood at common law, he is essentially a pledgee, and not the owner, of the stock, and turning it over upon demand to the customer does not create the relation of a preferred creditor within the meaning of the Bankrupt Law.
We cannot consent to the contention of the learned counsel for the petitioner that the insolvency of the broker at once converts every customer having the right to demand pledged stocks into a creditor who becomes a preferred creditor when the contract with him is kept and the stocks are redeemed and turned over to him.
to defraud or delay his creditors or give preference to anyone, and does not impair the value of his estate. An insolvent is not bound, in the misfortune of his insolvency, to abandon all dealing with his property; his creditors can only complain if he waste his estate or give preference in its disposition to one over another. His dealing will stand if it leave his estate in as good plight and condition as previously."
"A person shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition, or after the filing of the petition and before the adjudication, procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class."
A creditor is defined to include anyone who owns a demand or claim provable in bankruptcy. Sec. 1, sub. 9, Bankruptcy Act 1898, 3 U.S.Comp.St. 3419. It is essential, therefore, in order to set aside the alleged preference, that Shaw & Company, at the time of the transfer, should have stood in the relation of creditor to the bankrupt. Of course, if the New York rule based upon Markham v. Jaudon is correct, and the broker was the pledgee of the customer's stock, there can be no question that, in redeeming these stocks for the purpose of satisfying the pledge, no preferential transfer under the Bankruptcy Act resulted.
In our view, we think no different result is reached, so far as a preference in bankruptcy is concerned, if the Massachusetts cases could be taken to lay down the correct rule of the relations between broker and customer.
to deliver them to the customer upon the payment of so much money, and, until the money was paid, the right to have performance did not accrue.
In Covell v. Lound, 135 Mass. 41, the right of the broker was considered after the customer had refused to pay the necessary margin, and after the customer had requested the broker to do the best he could for him and to sell the stock at the broker's board without notice, and it was held that, under such circumstances the broker was not liable for conversion.
In Weston v. Jordan, 168 Mass. 401, the question was as to the relation between customer and broker after the broker had parted with the shares after repeated demands by the customer and refusal by the broker to deliver the shares, and it was held that a valid cause of action arose in favor of the customer, whether for breach of contract or for conversion it matters not.
"No doubt, whichever view be taken, there will be anomalies, and no doubt it is possible to read into either a sufficient number of implied understandings to make it consistent with itself. Purchases on margin certainly retain some of the characteristics of ordinary single purchases by an gent, out of which they grew. The broker buys and is expected to buy stock from third persons to the amount of the order. Rothschild v. Brookman, 5 Bligh (N.R.) 165; Taussig v. Hart, 58 N.Y. 425. He charges his customer a commission. He credits him with dividends and charges him with assessments on stock. However the transaction is closed, the profit or loss is the customer's. But none of these features is decisive."
there is nothing in the case decisive of the question now before us.
"The defendant seeks to have these decisions reconsidered; but the facts of the present case do not call for such reconsideration of the general doctrine. Even if, at the outset, Jordan were to be deemed a pledgor and Wheatland a pledgee of the shares, that relation was changed by what happened afterwards. . . . After Wheatland had parted with the control of the shares, and after repeated demands for them by Jordan and refusals by Wheatland to deliver them, Jordan had a valid ground of action against Wheatland, either for breach of contract or for a conversion, it matters not which."
The facts in the present case are entirely different from those disclosed in the case just cited. In the present case, there was no demand for the return of the stocks which was refused by the broker; but, recognizing the obligation of the contract, when the stocks were demanded the broker proceeded to redeem them from the pledge which he had made of them under the right given by the contract between the parties, and turned them over to the customer. In such case, the relation of debtor and creditor did not arise as it might upon the refusal, as in Weston v. Jordan, to turn over the stocks upon demand.
After an examination of the Massachusetts cases, Judge Lowell held in In re Swift, 105 F. 493, while following the Massachusetts rule as between broker and customer, that no cause of action arose until after demand by the customer. And the same view was taken in the same case upon review in the Court of Appeals for the First Circuit in an opinion by Judge Putnam, 112 F. 315. While both courts held that, under the law as defined in the Massachusetts cases, bankruptcy excused demand, they held that the customer did not become a creditor upon insolvency, but only after demand and refusal or its equivalent.
How then stood the parties at the time of the demand for the return of these shares of stock? They were held upon a contract which required the broker, upon demand, to turn over the shares purchased, or similar shares, to the customer upon payment of advancements, interest, and commissions. These stocks were redeemed and turned over to him; as a consequence, the relation of debtor and creditor as between the broker and customer did not arise.
Upon the principles heretofore discussed, we think the payment of the $5,000 on June 24 was not a preferential payment to a creditor. The customer had demanded settlement, the broker had paid the $5,000, and on the following day this sum was taken into account in settling the account before turning over to the customer the stock belonging to him, according to the understanding of the parties.
I am wrong. I suppose that it is possible to say that, after a purchase of stock is announced to a customer, he becomes an equitable tenant in common of all the stock of that kind in the broker's hands; that the broker's powers of disposition, extensive as they are, are subject to the duty to keep stock enough on hand to satisfy his customers' claims, and that the nature of the stock identifies the fund as fully as a grain elevator identifies the grain for which receipts are out. It would seem to follow that the customer would have a right to demand his stock of the trustee himself, as well as to receive it from the bankrupt, on paying whatever remained to be paid. A just deference to the views of my brethren prevents my dissenting from the conclusion reached, although I cannot but feel a lingering doubt.


No. 00 Civ. 3151 (RWS).
*528 *529 Steven Jude Hoffenberg, Federal Medical Center Devens, Ayer, MA, pro se.
Hoffman Pollok & Pickholz, New York City, By: John L. Pollok, of counsel, for Defendant.
Defendant Hoffman & Pollok, now known as Hoffman Pollok & Pickholz LLP *530 ("HPP") has moved pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure to dismiss the complaint of pro se plaintiff Steven Jude Hoffenberg ("Hoffenberg") and permanently enjoining Hoffenberg from filing any further frivolous lawsuits pursuant to 28 U.S.C. § 1651. For the reasons set forth below, the motion is converted into a motion for summary judgment and as such it is granted.
Hoffenberg has cross-moved under Rule 60(a) and (b) seeking recusal. This motion is denied as explained below.
Hoffenberg filed the complaint in this action (the "Complaint") on April 25, 2000, alleging diversity jurisdiction. Hoffenberg first alleges that HPP issued fraudulent billing to him for services that were never provided (Complaint at ¶¶ 16, 43-49). Second, he alleges that HPP fraudulently induced Hoffenberg to "write a letter about the over one million dollars advanced to HP by Pro Se"an apparent reference to a letter dated May 29, 1996 in which Hoffenberg released all claims he had against HPP. Third, Hoffenberg alleges 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 the consent judgment (id. at ¶¶ 19-42) by taking a $450,000 set aside from a third party. They thus acted adversely to Hoffenberg, colluding with a third party and forcing Hoffenberg to enter into an adverse agreement for HPP's benefit. (Id.).
On September 9, 2001, an order was entered granting Hoffenberg an additional 45 days to serve HPP because Hoffenberg, based on a review of the court files, had failed to serve HPP within 120 days of the filing of the Complaint. On November 14, 2001, this Court dismissed the action because of Hoffenberg's failure to serve HPP during the additional 45-day period granted in the September 9, 2001 order. Hoffenberg appealed this dismissal and on May 14, 2002, the Second Circuit vacated the dismissal and remanded the case to consider whether service was proper, having before it evidence of service. Hoffenberg v. Hoffman Pollok & Pickholz, LLP, 34 Fed.Appx. 18 (2d Cir. 2002).
On May 20, 2002, Hoffenberg filed a motion to recuse this Court, which was denied on October 30, 2002. HPP with-drew its efficacy of service claim and moved to dismiss. On July 16, 2003, the motion was marked fully submitted.
In early February 1993, the Securities and Exchange Commission ("SEC") commenced a civil action in the United States District Court for the Southern District of New York against Hoffenberg and others. SEC v. Towers Fin. Corp., No. 03 civ. 0744, 1996 WL 406685, at *1 (S.D.N.Y. Mar.26, 1996). Simultaneously with the action brought by the SEC, a criminal investigation commenced against Hoffenberg and others for conspiracy to obstruct the SEC's investigation during 1991 and 1992 and for a multitude of other criminal violations involving the securities laws. United States v. Hoffenberg, Nos. 94 Cr. 213, 95 Cr. 321, 1997 WL 96563, at *6 (S.D.N.Y. Mar.5, 1997). On February 17, 1993, Hoffenberg, and others, agreed to a preliminary injunction that enjoined him from dissipating assets which was entered as an order in September 1993. Hoffenberg's living expenses and reasonable attorney's fees were exempted. 93 Civ. 0744(WK) ("Expenses Consent Order").
On October 25, 1994, Hoffenberg consented to entry of a final judgment against him and various entities he controlled with the Towers Trustee (the "Consent Judgment"). *531 The Consent Judgment was a product of negotiations between Hoffenberg and his counsel, HPP, the Trustee, counsel for the Trustee, and the SEC. Hoffenberg signed the Consent Judgment, which was "So Ordered" by the Honorable Prudence Abrams who was overseeing the Towers bankruptcy. The Consent Judgment provided that the defendants named, including Hoffenberg and Towers, agreed to pay $400,000,000 to the creditors of Towers, which represented the losses resulting from Hoffenberg's fraud, ultimately found to be $475,157,340. It further provided that prejudgment interest of $108,000,000, which constituted a portion of the funds restrained by the SEC, be transferred to the Trustee in partial satisfaction of the $400,000,000 judgment. The transfer of these funds to the Trustee was subject to approval by the SEC.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Trustee shall transfer $450,000 to two interest-bearing Accounts at Republic National Bank with the law firm of Hoffman & Pollok, as signatories, $200,000 to one account ("Account A") and $250,000 to the other account ("Account B"). Both Accounts A and B shall be used solely for providing legal services to Hoffenberg by Hoffman & Pollok, and any amounts not spent on fees for legal services actually rendered shall be remitted to the Trustee. Funds in Account A may be used for legal representation (including attorneys' fees and expenses) of Hoffenberg in any criminal actions now pending against him. Hoffman & Pollok shall remit to the Trustee any unspent funds in Account B, plus related interest, within thirty (30) business days after the completion of all legal representation now pending against him in the Southern District of New York and the Northern District of Illinois. Hoffman & Pollok shall remit to the Trustee any unspent funds from account A within ten days after the termination of all civil litigation or twenty-four (24) months from the execution of this agreement whichever is earlier.
Hoffman & Pollok shall provide the Trustee with monthly statements from the Accounts, along with Hoffman & Pollok's monthly invoices for legal services rendered to Hoffenberg. If the necessity arises, funds may be transferred from Account A to Account B and/or Account B to Account A.
The Trustee shall review for reasonableness the monthly invoices within five (5) business days of receipt from Hoffman & Pollok and approve the invoices, in writing, in whole or in part.
Hoffman & Pollok shall withdraw funds from the account and/or transfer funds between accounts only upon written authorization of the Trustee, but the Trustee shall not unreasonably withhold his authorization. Any and all disputes as to the reasonableness of any invoices shall be adjudicated by the United States Bankruptcy Court for the Southern District of New York.
Hoffenberg waived any right to appeal the Consent Judgment and attested that he entered into the Consent Judgment voluntarily, acknowledging that "no tender offer, promise or threat of any kind has been made by Trustee or any of their officers, agents, or representatives, in consideration of this Consent." (Consent Judgment at ¶ 4). He also attested that the consent embodied the entire understanding of all parties thereto. The Consent Judgment *532 was entered by the Honorable Whitman Knapp on November 2, 1994.
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. United States v. Hoffenberg, 1997 WL 96563, at *1. Hoffenberg's motion to withdraw this plea was subsequently denied. United States v. Hoffenberg, 169 F.R.D. 267, 268 (S.D.N.Y.1996) and Hoffenberg was sentenced to 240 months in prison and required to make restitution of $475,157,340, representing the losses resulting from Hoffenberg's fraud at Towers as determined by the Bankruptcy Court. The Second Circuit affirmed this judgment on September 22, 1998. United States v. Hoffenberg, 164 F.3d 620 (2d Cir.1998). Hoffenberg is currently serving this sentence.
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. (Complaint at ¶ 13). The initial retainer provided that HPP would receive one million dollars for its services. Id. This agreement was amended on May 25, 1993. Since Hoffenberg's assets had been frozen by the SEC two months earlier, the funding of the retainer was subject to SEC approval, which was granted.
During the first quarter of 1994, the initial retainer had been exhausted. Pursuant to the freeze order obtained by the SEC, the firm made an application to the SEC for the payment of additional funds. Each of the invoices sent to the SEC for approval contained a detailed breakdown of legal services, supported by HPP's worksheets and each attorney's handwritten time slips. From April until June 1994 these invoices were sent to the SEC, and payment was approved. Between July and August 1994, the attorneys for the Trustee in Bankruptcy for Towers, with the approval of the SEC, oversaw and approved the invoices as submitted.
HPP's invoices continued to be approved by a replacement trustee and his counsel. HPP's submitted invoices for February, March, and June 1996, totaling $51,341.96, were declined approval. However, this dispute was settled with approval from the Bankruptcy Court, and HPP returned $96,890.96 on December 20, 1996 to the Trustee. This represented the unused criminal portion of the $450,000 Set Aside allocated to them by the Consent Judgment.
I accept the legal work provided by Hoffman & Pollock [sic]. I have no dispute with the work and money paid to Hoffman & Pollok. All work provided to me has been billed and paid for to date. Any and all claims made by me have been withdrawn. I am requesting everybody involved in our cases to understand that the dispute over money between Hoffman & Pollock [sic] and I have [sic] been settled.
This letter is referenced in the Complaint at ¶ 18 and is quoted and/or referenced by Magistrate Judge Peck and Judge Knapp in their decisions granting HPP's withdrawal. SEC, 1996 WL 288176, at *1.
On May 31, 1996, Magistrate Peck recommended the granting of HPP's withdrawal based on HPP's assertion that although "none of these allegations contained in these letters are even remotely true, they have created a gulf between Hoffenberg as client and Hoffman & Pollok as attorneys which cannot be bridged." SEC, 1996 WL 288176, at *2. In reviewing Magistrate Judge Peck's recommendation, Judge Knapp acknowledged that the Court had received letters both accusing HPP of ineffective assistance of counsel and insisting that all conflicts between the parties had been resolved before Magistrate Peck had recommended withdrawal. SEC v. Towers Fin. Corp., Nos. 93 Civ. 0744, 93 Civ. 0810, 1996 WL 383238, at *1 (S.D.N.Y. July 8, 1996). In addition, after Magistrate Peck's recommendation, Judge Knapp received another letter from Hoffenberg "directly insisting that he [Hoffenberg] has no quarrel with Hoffman & Pollok, and that he wants them to continue to represent him in the civil cases." Id. Judge Knapp adopted Magistrate Judge Peck's recommendation in its entirety on July 8, 1996, thereby relieving HPP from representation. Id.
On November 8, 1996, Hoffenberg filed a complaint against HPP with the Departmental Disciplinary Committee of the Appellate Division, First Department, alleging that he was forced to sign the Consent Judgment when there was no proof he owed any money to creditors. In addition, Hoffenberg claimed he was not provided with legal bills representing $1,225,000 in retainer fees, and that he had no quarrel with HPP's services as late as May 1996. He demanded an accounting. On April 17, 1998, HPP was informed that the Disciplinary Committee closed the file on the matter and would not take any further action.
In December 1999, Hoffenberg filed a motion to recuse this Court on the basis of a conflict of interest he feared would influence this Court's review of his 28 U.S.C. § 2255 attack on his two affirmed convictions. Hoffenberg v. United States, No. 00 Civ. 1686, 2000 WL 1523142, at *1 (S.D.N.Y. Oct. 13, 2000). This Court denied that motion twice, and the Second Circuit also dismissed Hoffenberg's appeal of these orders. In addition, 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. at *1 (citing Hoffenberg v. United States, No. 00 Civ. 1686 (S.D.N.Y. Mar. 6, 2000)). On August 8, 2000, Hoffenberg filed another recusal motion. This Court also held that Hoffenberg failed to raise an attack on his convictions that could be considered a proceeding under 28 U.S.C. § 455(d) (1) and acknowledged that "any appeal from this order, or from my order of January 28, *534 2000 denying his prior recusal motion, would not be taken in good faith."
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. This Court granted Meyer's motion for summary judgment and dismissed Hoffenberg's amended complaint, holding that because the claim arose out of a criminal proceeding and Hoffenberg's conviction and sentence remained undisturbed, he could not assert his innocence and was not entitled to commence a malpractice action against his attorney. Hoffenberg v. Meyers, No. 99 Civ. 4674, 2002 WL 57252, at *1 (S.D.N.Y. Jan.16, 2002). The Court further noted that in this action, "Hoffenberg has simply repackaged prior unsuccessful arguments in an effort to avoid the consequences of his plea." Id. at *4.
The essential inquiry is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.... A party cannot complain of lack of a reasonable opportunity to present all material relevant to a motion for summary judgment when both parties have filed exhibits, affidavits, counter-affidavits, depositions, etc. in support of and in opposition to a motion to dismiss.
In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir.1985). See also Cook v. Hirschberg, 258 F.2d 56, 57-58 (2d Cir. 1958); Condon v. Local 2944, United Steelworkers of America, 683 F.2d 590, 593-94 (1st Cir.1982); Nat'l Family Ins. Co. v. Exch. Nat'l Bank of Chicago, 474 F.2d 237 (7th Cir.1973).
In deciding a 12(b) (6) motion to dismiss for failure to state a claim, the court's "consideration is limited to the factual allegations [of the complaint,] to documents attached to the complaint as exhibits or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Cahill v. O'Donnell, 7 F. Supp. 2d 341, 344 (S.D.N.Y.1998) (quoting Brass v. American Film Tech. Inc., 987 F.2d 142, 150 (2d Cir.1993)). Although the Court may consider those documents attached to the complaint as exhibits, the papers submitted also refer to certain additional facts as set forth above.
When a motion is made under Fed. R. 12(b) (6), and "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56," giving all parties reasonable opportunity to present pertinent material. see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991), cert. denied, 503 U.S. 960, 112 S. Ct. 1561, 118 L. Ed. 2d 208 (1992); Kramer v. Time Warner, 937 F.2d 767, 773 (2d Cir.1991).
Under these circumstances, Hoffenberg will be given thirty (30) days, or more with good cause shown, to submit any additional facts which might cause a reconsideration of this decision.
Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see generally 6 James Wm. Moore, et al., Moore's Federal Practice ¶ 56.15 (2d ed.1983). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
The moving party has the burden of showing that there are no material facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. Bickhardt v. Ratner, 871 F. Supp. 613 (S.D.N.Y.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Thus, "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. 2505; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997).
Although Hoffenberg's complaint is to be read liberally, this does not prevent dismissal where the issue presented is one of law. See 100,000 Victim Families Note Holders Owners of Sec. in Towers Fin. Corp. v. Schulte Roth & Zable, 210 F. Supp. 2d 286, 286-87 (S.D.N.Y.2001) (dismissing Hoffenberg's complaint for failing to establish standing or state a claim upon which relief could be granted after having been given an opportunity to cure his complaint); Levin v. Chase Manhattan Bank Corp., No. 98 Civ. 7998, 1999 WL 669261, at *1 (E.D.N.Y. Aug.24, 1999) (dismissing pro se's complaint on basis of res judicata and failure to state a claim); Brown v. Croce, 967 F. Supp. 101 (S.D.N.Y.1997) (granting summary judgment where, although Court construed pro se's claim generously, pro se did not establish claim).
The determination of which state's laws apply in this action is governed by the Erie doctrine and choice of law principles. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). Since HPP, with its principle place of business in New York, is the partnership in this diversity action and all relevant actions took place in New York, New York's substantive law governs this action.
Under N.Y.C.P.L.R. § 213(8) and N.Y.C.P.L.R. § 203(g) (West 2002), the statute of limitations for a claim of fraud is six years from the commission of the fraud or two years from the time of discovery, whichever is later. Phillips v. Levie, 593 F.2d 459, 462 n. 12 (2d Cir.1979) ("§ 213(8) is not the sole statute involved in determining the New York limitation period for fraud actions." N.Y.C.P.L.R. § 203(f)*536 must also be consulted ... [w]hen 213(8) and 203(f) are read together, they have been construed to mean that in fraud actions suit must be commenced within six years after the commission of the fraud or within two years of the date the fraud was or should have been discovered, whichever is longer); Hoff Research & Dev. Labs., Inc. v. Philippine Natl. Bank, 426 F.2d 1023, 1025 n. 1 (2d Cir.1970) ("[T]hese sections together have been held to yield ... the six years from accrual or two years from discovery rule for actual fraud actions"); Bader v. Fleschner, 463 F. Supp. 976, 981 (S.D.N.Y.1978) (citing both § 213(8) and § 203(g)'s predecessor).
Hoffenberg has asserted that HPP issued fraudulent legal bills on June 26, 1996, (Complaint at ¶¶ 16-17, 43-44, 47, 49). He alleges that on that day he received a bill which included an entry for August 31, 1993 in the amount of $150,000 for which, he claims, legal services were never provided. (Id. at ¶¶ 54-48). This is the sole time entry which is asserted as a claim in the Complaint. Additionally, Hoffenberg alleges that all billing provided on June 26, 1996 was inflated. (Id. ¶¶ 43-49).
Reading the Complaint as liberally as possible, the claim of fraud accrued on August 31, 1993, the date of the commission of the wrongdoing, and expired on August 21, 1999, six years later. (Id. at ¶¶ 45-48); see also Ackerman v. Nat'l Property Analysts, Inc., 887 F. Supp. 494, 504 (S.D.N.Y.1992) (time barring under the six-year statute of limitations fraud claims of all plaintiffs who invested in limited partnerships prior to December 19, 1985 where complaint was filed on December 19, 1991). Alternatively, the claim accrued upon Hoffenberg's discovery of the inflated legal bills on June 26, 1996. (Complaint at ¶¶ 16-18, 43-44, 47 and 49). Therefore under the discovery method of CPLR § 203(g), the statute of limitations accrued on June 26, 1996 and expired on June 26, 1998, two years later. Stull v. Bayard, 561 F.2d 429, 431 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S. Ct. 769, 54 L. Ed. 2d 783 (1978) (time barring claim under discovery method). Hoffenberg's claim of fraudulent billing is thus time-barred under N.Y. CPLR §§ 218(8) and 203(g).
Under N.Y. CPLR § 214(6), the statute of limitations for a claim of legal malpractice is three years. De Carlo v. Ratner, 204 F. Supp. 2d 630, 634 (S.D.N.Y. 2002); Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 726 N.Y.S.2d 365, 366, 750 N.E.2d 67 (N.Y.Ct.App.2001). Claims of breach of fiduciary duty are also governed by a three-year statute of limitations. Nobile v. Schwartz, No. 99 Civ. 2375, 2000 WL 1753036, at *6 (S.D.N.Y. Nov.29, 2000); see also Cooper v. Parsky, 140 F.3d 433, 441 (2d Cir.1998) (stating claim for breach of fiduciary duty would be governed by a three year limitations period). The cause of action accrues and the limitations period starts running from the time the malpractice is committed, not when the client discovers it. De Carlo, 204 F. Supp. 2d at 635; Shumsky, 96 N.Y.2d at 166, 726 N.Y.S.2d at 367, 750 N.E.2d 67.
Hoffenberg alleges that HPP committed malpractice and breach of fiduciary duty in connection with the Consent Judgment (Complaint at ¶¶ 20-21, 23-40), and throughout the course of their representation of Hoffenberg. (Id. at ¶ 41). The *537 statute of limitations for malpractice and breach of fiduciary duty in connection with the Consent Judgment accrued from October 25, 1994, the date the judgment was entered and the time at which HPP committed the actions, and expired on October 25, 1997, at the termination of the three-year time limit. See De Carlo, 204 F. Supp. 2d at 635 (time barring malpractice claim where alleged injury took place on November 10, 1998 but action was not filed until November 14, 2001); Nobile, 2000 WL 1753036, at *8 (time barring plaintiff's legal malpractice claim where alleged injury took place on March 7, 1995 and action was not commenced until August 16, 2000). Hoffenberg's legal malpractice claim and claim for breach of fiduciary duty are therefore time-barred.
Even if the statute of limitations is deemed not to run until July 31, 1996, when HPP was discharged, the three-year limitation period expired on July 31, 1999. Thus, under any circumstances, Hoffenberg's claim is time-barred under 214(6) and, therefore, is dismissed.
Alternatively, Hoffenberg's claims of fraud and malpractice in connection with the Consent Judgment are barred by the doctrine of res judicata. See Amalgamated Sugar Co. v. NL Indus., Inc., 825 F.2d 634 (2d Cir.1987), cert. denied, 484 U.S. 992, 108 S. Ct. 511, 98 L. Ed. 2d 511 (1987); see also Clark & Co., Inc. v. Acheson Indus., Inc., 532 F.2d 846 (2d Cir.1976), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976). Under the doctrine of res judicata a final judgment on the merits of an action rendered by a court of competent jurisdiction "precludes the parties ... from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed. 2d 308 (1980); Amalgamated, 825 F.2d at 639.
Consent judgments are accorded res judicata effect, as they are exercises of judicial power. Amalgamated, 825 F.2d at 639 ("The general rule is that a final consent decree is entitled to res judicata effect. This is so because the entry of a consent judgment is an exercise of judicial power, that is entitled to appropriate respect and because of the policy favoring finality of judgments.") (internal citations omitted); Wallace, 532 F.2d at 848. Thus, the Consent Judgment is entitled to res judicata preclusive effect, as it has been held to be a final judgment and was rendered by a court of competent jurisdiction.
Res judicata bars "all other claims arising out of the same transaction or series of transactions ... even if based upon different theories or if seeking a different remedy." Seavey v. Chrysler Corp., 930 F. Supp. 103, 106 (S.D.N.Y.1996) (quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 688, 429 N.E.2d 1158 (1981)); cf. Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir.1997) (barring not only "every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose") (quoting SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1463 (2d Cir.1996)). A first judgment "will generally have preclusive effect only when the transaction or connected series of transactions at issue in both suits is the same, that is where the *538 same evidence is needed to support both claims, and where the facts essential to the second were present in the first." Interoceanica, 107 F.3d at 91.
Under the terms of the Consent Judgment, HPP received $450,000 to be held in escrow for legal services to be rendered and subsequently provided (Consent Judgment No. 94-8055A at ¶ V). This fee was a result of negotiations between Hoffenberg and his counsel, the Trustee in Bankruptcy for Towers, counsel for Towers and the SEC. This payment was placed in trust, subject to the Trustee's monthly review of HPP's billing invoices to determine their reasonableness, capped at $450,000 and subject to remittance for unused funds. Hoffenberg consented to this $450,000 Set Aside as he consented to the enforcement and implementation of the terms and conditions of the judgment.
In In re Teltronics Servs., Inc., the court held that because the events constituting the asserted injury were identical to those asserted in the first action, the second suit was barred by res judicata. 762 F.2d 185, 193 (2d Cir.1985). Here, Hoffenberg asserts that HPP colluded with the Trustee to secure the $450,000 payment (Complaint at ¶¶ 36, 37), induced Hoffenberg to sign the Consent Judgment to secure its retainer (Complaint at ¶¶ 22, 23, 25), and thus acted in its own self-interest (Complaint at ¶¶ 11, 33, 42). However, it is these injuries that produced not only the disputed payment, but also led to his Complaint. Since the events are the same, "[n]ew legal theories do not amount to a new cause of action so as to defeat the application of the principle of res judicata." Teltronics, 762 F.2d at 193.
In addition, the validity of this payment had already been negotiated in the previous action, a final determination made, and Hoffenberg consented voluntarily to its enactment, under which a portion of this capped payment was remitted to the Trustee, and Hoffenberg subsequently abided by the terms of the judgment. 100,000 Victim, 210 F. Supp. 2d at 286-87 (Hoffenberg alleges that the law firm violated 1994 Consent Judgment, thus giving rise to his complaint); see also Amalgamated, 825 F.2d at 638 (Holding consent judgment had preclusive effect where the judgment was entered into in order to avert dilution of voting power, costly litigation, and impediments to business affairs, the terms of which parties abided by). In addition, Hoffenberg asserted a claim against Schulte Roth & Zabel for violations of the same judgment, thereby evidencing Hoffenberg's reliance upon its validity. 100,000 Victim, 210 F. Supp. 2d at 286-87.
Hoffenberg participated in the fee negotiations, consented to the judgment as part of his cooperation with the Trustee in Bankruptcy and used the judgment affirmatively. May v. Parker-Abbott Transfer & Storage, Inc., 899 F.2d 1007, 1010 (10th Cir.1990) ("To allow the second suit to proceed as framed would allow precisely the sort of piecemeal litigation, unnecessary expense, and waste of judicial resources that the doctrine of res judicata is designed to prevent."); Amalgamated, 825 F.2d at 638 (holding final consent judgment entitled to res judicata effect where parties to agreement would have been seriously impeded in the conduct of their business affairs had the purchase plan validity remained a litigable issue); see also Wallace, 532 F.2d at 849. The Consent Judgment has res judicata effect and precludes relitigation of Hoffenberg's claim.
Res judicata is also a bar to claims that could have been raised in the prior action. Allen, 449 U.S. at 94, 101 S. Ct. at 414. In executing the Consent Judgment, Hoffenberg waived any right to appeal it, consented to the enforcement and implementation of the terms and conditions of the *539 judgment, and claimed his entry was voluntary. In his Complaint, Hoffenberg asserts that "HPP acted with fraud" in connection with their award of any additional monies for legal services to their collusion with the Trustee in Bankruptcy. Notwithstanding the fact that Hoffenberg asserted he entered into the Consent Judgment voluntarily, he also waived any right to appeal the judgment. Therefore, he could have challenged the judgment under grounds of fraud, but waived his right to do so. Accordingly, he is barred from raising that claim now. See Amalgamated, 825 F.2d at 642 (holding where a party chooses not to litigate when presented with the opportunity, he loses his right to bring another suit).
In addition, Hoffenberg has asserted he was fraudulently induced into entering into the Consent Judgment by HPP so it could receive the retainer. (Complaint at ¶ 22). In Teltronics, the court, in dismissing an action on the basis of res judicata, held that petitioner could not assert a new legal theory in order to defeat application of res judicata to his previous action. 762 F.2d at 193 (dismissing plaintiff's appeal of summary judgment where plaintiff had reasserted previous claims as well as ongoing interference with business affairs). Although Hoffenberg has alleged fraud and malpractice on the part of HPP, it is the specific provisions of the judgment to which Hoffenberg waived his right to appeal. He will not be permitted to relitigate those claims under the guise of fraud and malpractice. Thus, Hoffenberg's Complaint is precluded not only by res judicata but also because he waived his right to appeal the Consent Judgment.
Not only does the doctrine of res judicata grow out of policies favoring prevention of repetitious litigation and conservation of judicial resources, but also avoidance of vexation for parties and the judiciary. See May, 899 F.2d at 1009; see also Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir.1993), cert. denied, 510 U.S. 902, 114 S. Ct. 278, 126 L. Ed. 2d 229 (1993). In Levin v. Chase Manhattan Bank Corp., the court dismissed pro se's complaint of fraudulent tax levies placed on plaintiff's account because the party proceeding pro se had filed a different, previously dismissed action against the same defendants. 1999 WL 669261, at *1. There, the court held that, as "[the] action is a transparent attempt by [pro se] to camouflage failed claims previously filed and dismissed," the claims were barred by res judicata. Id.
Courts have recognized the need to impose severe limitations on the opportunity of litigious individuals to pursue their vexatious and frivolous claims. In re Anthony Martin-Trigona, 9 F.3d 226, 227 (2d Cir.1993); Pentagen Techs. Int'l Ltd. v. United States, 172 F. Supp. 2d 464, 468 (S.D.N.Y.2001) (enjoining plaintiff from filing any further litigations where plaintiff had filed eight previous claims); Malley v. New York City Board of Educ., 112 F.3d 69 (2d Cir.1997); Sassower v. Sansverie, 885 F.2d 9 (2d Cir.1989). The court's power to enjoin such individuals is used to protect judicial resources, the finality of judgment and the integrity of the courts from those plaintiffs who abuse the court system and harass their opponents. Villar v. Crowley Maritime Corp., 990 F.2d 1489, 1499 (5th Cir.1993), cert. denied, 510 U.S. 1044, 114 S. Ct. 690, 126 L. Ed. 2d 658 (1994) (enjoining plaintiffs from bringing any further litigation based on the underlying facts in case, including future litigation in state courts). Enjoining a plaintiff from filing further lawsuits *540 is proper and necessary where plaintiff has been warned by the court before, threatened with sanctions if additional lawsuits are filed, does not abide by such warnings and the court finds that such behavior "demonstrate[s] that neither the lack of success of his actions nor the warnings of the district court will cause him to cease his abuse of the judicial process." Malley, 112 F.3d at 69 (affirming injunction where plaintiff exhibited such behavior); see also Pentagen, 172 F. Supp. 2d at 474; In re Martin-Trigona, 795 F.2d 9, 12 (2d Cir. 1986).
In Pentagen, the district court enjoined plaintiff from filing any further litigation without permission of the court where plaintiff had filed nine previous claims and ignored court warnings. 172 F. Supp. 2d at 474. Similarly, in Malley, the court affirmed an injunction where plaintiff continued to file claims that were barred on res judicata and statute of limitations grounds. 112 F.3d at 69. There the court found no "barrier to a broader injunction in light of the warnings previously issued to Malley and of his persistence in pursuing the same meritless claims wherever his papers are accepted by a clerk of court." Id. Hoffenberg will be enjoined from filing any further litigation based on the underlying facts of this Complaint without prior approval by the Court.
No grounds cognizable under Rule 60(a) or (b) have been set forth by Hoffenberg.
In his reply filed on July 3, 2003, he alleges grounds for recusal based upon an interest of a member of my wife's family in The New York Post which Hoffenberg sought to acquire after that interest had been terminated. There is no relationship to that interest in the proceedings described above, chronologically or in any other fashion.
Rule 60 relief is not warranted.
For the reasons set forth above, summary judgment may be entered on notice dismissing the Complaint and barring Hoffenberg from further litigation arising out of these matters without Court permission. Leave is granted to Hoffenberg to submit any additional facts within thirty (30) days *541 and HPP is granted ten (10) days to reply to any such submissions.
 N.Y.C.P.L.R. § 203(f) is N.Y.C.P.L.R. § 203(g)'s predecessor.
 Although Hoffenberg alleges ineffective assistance of counsel in connection with his execution of the Consent Judgment, the allegations are in the nature of malpractice. To the extent that these allegations are read as alleging ineffective assistance of counsel, this Court has already held that Hoffenberg's § 2255 motion, based on the same grievances alleged herein, did not make a substantial showing of the denial of any constitutional rights, was time-barred, and did not warrant a certificate of appealability. Hoffenberg, 2000 WL 1523142, at *3. Therefore, on this basis, Hoffenberg's claim of ineffective assistance of counsel is barred by res judicata.


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New Genera of African Poeciliid Fishes.
Type-species: by monotypy as Haplochilus pumilus Boulenger, 1906.
Type locality: Kituta, lake Tanganyika, Zambia.
Type locality: Deutsche Ost-Afrika, i.e.Tanzania (Busisi, southern banks of lake Victoria, Tanzania, subseq.).
The fishes of the Lake Rukwa drainage. Annales, Musée Royal de l'Afrique Centrale, Tervuren, Série in 8o, Sciences Zoologiques v. 278: 1-407.
Type locality: Wogo river, Rungwa drainage, 26 km southwest of Inyonga on track to lake Rukwa, Tabora region, western Tanzania.
Neue Afrikanische Zahnkarpfen aus dem Zoologischen Museum Berlin. Zool. Anz., 61 (3-4): 137.
Type locality: Bukoba, northwestern Tanzania.
Mission scientifique de l'Omo. Pisces. Mission Scientifique de l'Omo. Pisces v. 2 (Zool. fasc. 7): 131-139.
Type locality: delta of the Omo river (lake Rudolph, today Turkana), Ethiopia.
Distribution: Eastern Africa: Lake Turkana basin.
Neue afrikanische Zahnkarpfen aus dem Zoologischen Museum Berlin.
Zoologischer Anzeiger v. 61(nos 5/6): 135-145.
Type locality: Kassenji (today Kasenye), Lake Albert (Albert Nyanza), Zaïre.
Distribution: Eastern Africa: Lake Albert Nyanza.
(Description d'un Poisson nouveau du Genre Haplochilus provenant du Katanga.
Type locality: Lubumbashi river, near Elisabethville (today Lubumbashi), Katanga (today Shaba province), Zaïre.
Lacustricola katangae "Divundu NA K 2011"
V. Revue de Zoologie Africaine v. 98 (no. 1): 74-96.
Type locality: Maka, Sangwa lake (also Kikondja, Lovoi river), (Shaba province) southeastern Zaïre.
Poissons du Katanga (bassin du Congo) récoltés par le professeur Paul Brien. Revue de Zoologie et de Botanique Africaines v. 30 (no. 4): 389-423.
Type locality: Marimba, lake Sarmento (near mouth of Cuanza river, subseq.), (northwestern) Angola.
Distribution: Africa: Angola and Namibia.
Barbus schneemanni und Aplocheilichthys maculatus, zwei neue Fische aus Ost-Afrika (Pisces, Cyprinidae und Cyprinodontidae.). Senckenbergiana Biologica v. 38 (nos 5/6): 279-282.
Type locality: Soga, near Dar es Salaam, Tanzania.
The Fishes of the Lake Rukwa Drainage. Annales Sciences Biologiques, M.R.A.C., 278: 267, figs. 200, 205-206.
Type locality: Kamuzwadsi river near Sunzu, reaches of the Saisi river, Mbala-Tunduma road, lake Rukwa drainage, northern Zambia.
Contribution à la faune ichthyologique de l'Angola. Publicações Culturais, Companhia de Diamantes de Angola (DIAMANG), Lisboa No. 75: 1-381, Pls. 1-20.
Mission Stappers au Tanganyika-Moero. Diagnoses de poissons nouveaux. I. Acanthoptérygiens, Opisthomes, Cyprinodontes. Revue de Zoologie Africaine v. 3 (pt 3): 442-447.
Type locality: western shore of lake Moero (today lake Mweru) (at Kilwa, subseq.), Shaba province, Zaïre.
On a collection of fresh-water fishes, batrachians and reptiles from Natal and Zululand, with descriptions of new species. Annals of the Natal Government Museum v. 1 (pt 3): 219-235, Pls. 35-36.
Type locality: Myaposa (today Mposa) river, Zululand (today eastern Natal, subseq.), South Africa.
Type locality: 100 km southwest Iringa, along the way from Mbeya to Iringa, west Sao Hills, Tanzania.
Fourth contribution to the ichthyology of Lake Tanganyika.--Report on the collection of fishes made by Dr. W. A. Cunnington during the Third Tanganyika Expedition, 1904-1905. Transactions of the Zoological Society of London v. 17 (pt 6, no. 1): 537-601, Pls. 30-41.
Beschreibung von zwei neuen Leuchtaugenfischen aus Tansania (Cyprinodontidae. Procatopodinae. Aplocheilichthys). Aquarienfreund v. 6 (no. 6): 103-116.
Type locality: near Ilongo, ca. 45 km east of Mbeya, along the Mbeya-Iringa main way, Tanzania.
Neue Afrikanische Zahnkarpfen aus dem Zoologischen Museum Berlin. Zool. Anz., 61 (3-4): 136.
Type locality: Vitschumba (today Vitshumbi, lake Edouard), northeastern Zaïre.
Distribution: Democratic Republic of Congo.
Notes on the classification and names of cyprinodont fishes. Tropical Fish. Magazine. Mar. 1955: 7.
Un Oryziiné (Pisces, Cyprinodontidae) nouveau de l'est de Madagascar. Bulletin du Muséum National d'Histoire Naturelle (Série 2) v. 35 (no. 3): 235-237.
The Osteology and Classification of the Teleostean Fishes of the Order Microcyprini.
Ann. & Mag. Nat. Hist., 8 (7): 325.
Type-species: by monotypy as Haplochilus tanganicanus Boulenger, 1898.
Type locality: Mbity rocks, (southern side of) lake Tanganyika.
Report on the Fishes obtained by Mr. J.E.S. Moore in Lake Tanganyika. Proc. Zool. Soc. London, (part 3): 497.
Contribution à l'Etude de la Faune ichthyologique du Lac Tanganyika. Rev. Zool. Bot. Afr., 28: 153.
Type locality: Nyanza, Rumonge, (north side of) lake Tanganyika.

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