                                                           NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                  No. 16-4145



                         FREDERICK M. WEINBERG,
                                        Appellant

                                       v.

                           SCOTT E. KAPLAN, LLC


                 On Appeal from the United States District Court
                           for the District of New Jersey
                       (District Court No.: 3-16-cv-04913)
                  District Judge: Honorable Anne E. Thompson


                             Argued on July 12, 2017


      Before: GREENAWAY, JR., SHWARTZ and RENDELL, Circuit Judges.


                        (Opinion filed: August 21, 2017)


Peter A. Ouda, Esq. ARGUED
19 North Bridge Street
Somerville, NJ 08876

                       Counsel for Appellant

William G. Wright, Esq. ARGUED
Capehart Scatchard
Suite 300 S
8000 Midlantic Drive
Laurel Corporate Center, Suite 300S
P.O. Box 5016
Mount Laurel, NJ 08054

                            Counsel for Appellee



                                       O P I N I O N*


RENDELL, Circuit Judge:

       In this appeal, Dr. Frederick M. Weinberg and his wife Janice T. Nini (the

“Plaintiffs”) challenge the District Court’s dismissal of their malpractice lawsuit against

their former chapter 11 bankruptcy attorney, Scott E. Kaplan (the “Defendant”). The

District Court ruled that the Plaintiffs’ lawsuit was barred by previous litigation before

the Bankruptcy Court under the doctrine of res judicata. Because we agree that the

Plaintiffs should have litigated their malpractice claim before the Bankruptcy Court, we

will affirm.

                                             I.1

       The Plaintiffs hired the Defendant in November 2012 and shortly thereafter filed a

voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. In the

instant complaint (the “Complaint”), they allege two incidents of malpractice arising

from this engagement.

       *
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       1
         We accept as true the factual allegations in the Complaint. We also take notice of
the Bankruptcy Court’s docket, which we use to provide temporal context to the various
allegations of malpractice. See S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping
Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999).
                                              2
       The first such incident stems from an allegedly deficient response to a creditor’s

motion for relief from the automatic stay. In January 2013, the Plaintiffs’ largest creditor

moved for relief to continue pursuing pre-petition state court foreclosure remedies against

the Plaintiffs (the “January 2013 Relief from Stay Motion”). The Bankruptcy Court

granted the motion as to the Plaintiffs’ residential property. The Complaint alleges the

Defendant “confused” the court by his arguments in his opposition. A20, ¶11. After the

order issued, they contend that the Defendant ignored their pleas to file for

reconsideration, even though they brought to his attention “errors made by the court on

certain keys [sic] factual issues” (the Complaint does not specify which facts). A18, ¶4.

The Defendant did eventually move for reconsideration. The Bankruptcy Court

acknowledged it had “made a clear error of fact when it granted stay relief as to the

incorrect property” and granted the motion for reconsideration. A19, ¶8.

       In June 2013, a month after the District Court wrongly granted stay relief, the

Defendant applied to the Bankruptcy Court for compensation (the “June 2013 Fee

Application”) in the amount of $32,047.16—his only such application in the case. The

June 2013 Fee Application specifically requested fees for the work performed opposing

the January 2013 Relief from Stay Motion. The Plaintiffs did not contest or otherwise

appear at the hearing on this application. Still, the Bankruptcy Court, in allowing the

Defendant’s fees and expenses, sua sponte reduced the award to $27,099.66 (the “July

2013 Fee Order”).

       The second incident of alleged malpractice arises from a series of purported

omissions that began in June 2013. The Complaint alleges that the Defendant was

                                             3
responsible for, but failed to file, Chapter 11 monthly operating reports. These omissions

culminated in the conversion of the case to a Chapter 7 liquidation upon a motion by the

U.S. Trustee. The Defendant also allegedly failed to oppose this motion. The Plaintiffs

then fired the Defendant and hired another attorney, Richard Kwasny, who moved for

reconsideration, which was granted. Both alleged incidents, according to the Complaint,

required the Plaintiffs to “expend[] great sums of money” on additional legal fees and

expenses. A21, ¶13.

       The case continued for approximately two more years after the Defendant’s exit.

Relevant to this appeal, in March 2014, the Plaintiffs fired Kwasny and hired the Trenk,

Dipasquale firm, who then negotiated and filed a proposed plan of reorganization (the

“Plan”). That Plan specifically listed the Defendant’s allowed administrative claim for

fees (arising from the June 2013 Fee Application) and granted the Defendant a right to

payment on the effective date of the plan. In March 2015, the District Court confirmed

the Plan without objection.

       Before the Plan was confirmed, the Defendant sought to collect his fees by filing a

motion to compel payment pursuant to the July 2013 Fee Order. The Plaintiffs were

successful in securing adjournments of the hearing on that motion until after their Plan

was confirmed. Thereafter, the Plaintiffs objected to payment indicating that they were

prepared to file a malpractice action. The Defendant withdrew that motion to compel

payment and filed another motion to compel payment in September 2015. Ultimately, the

Bankruptcy Court granted the Defendant’s motion noting that it “was surprised that [the

Plaintiffs] didn’t file an objection [to the June 2013 Fee Application] because [it]

                                             4
gathered that the [the Plaintiffs] were unhappy with [the Defendant’s] services.” A115.2

Nevertheless, because there was a “duly filed and awarded administrative claim that

should have been paid pursuant to the terms of the plan on the effective date,” and

“because his fees were not objected to and the fee Order was not appealed,” he was

“entitled to the relief he requests.” A115.

       In June 2016, the Plaintiffs filed this malpractice Complaint in the Superior Court

of New Jersey, Law Division, and the Defendant promptly removed to District Court.

The Defendant moved to dismiss the Complaint on the ground that the claim was barred

under the doctrine of res judicata. The District Court agreed, reasoning that the Plaintiffs’

Complaint was barred by res judicata because the “Plaintiffs’ claims . . . are precisely the

same claims that it could have, but did not, raise prior to the Bankruptcy Court’s

confirmation of the Plan.” A11. Weinberg now timely appeals this ruling and asks us to

reverse the District Court’s judgment. We decline to do so.




       2
         The Bankruptcy Court granted this motion “without prejudice” to the Plaintiffs’
threatened malpractice claim. A116. This ruling has no bearing on our analysis, however,
because the preclusive effect of the Bankruptcy Court’s earlier order was not at issue in
that proceeding.
                                              5
                                             II.3

       Generally speaking, a suit is barred where there is (1) a final judgment on the

merits in a prior action involving (2) the same parties (or their privies) and (3) the same

cause of action. See Bd. of Trs. of Trucking Emps. of N. Jersey Welfare Fund, Inc. v.

Centra, 983 F.2d 495, 504 (3d Cir. 1992). “If these three factors are present, a claim that

was or could have been raised previously must be dismissed as precluded.” CoreStates

Bank, N.A. v. Huls Am., Inc., 176 F.3d 187, 194 (3d Cir. 1999). The parties agree that the

first two elements of this test are satisfied in this case, but they dispute the third prong—

whether the “same cause of action” underlying the Complaint was presented to the

Bankruptcy Court.

       Typically, under this third prong, we ask whether there is an “essential similarity

of the underlying events giving rise to the various legal claims.” Sheridan v. NGK Metals

Corp., 609 F.3d 239, 261 (3d Cir. 2010) (quoting United States v. Athlone Indus., Inc.,

746 F.2d 977, 984 (3d Cir. 1984)). But where the prior litigation arises during a

bankruptcy case, we have cautioned that the claim preclusion analysis is more

       3
         Because the Plaintiffs’ claim stems from the Defendant’s representation during
their Chapter 11 case, their claim “aris[es] in” or is “related to” the Chapter 11 case under
28 U.S.C. § 1334(b). See Billing v. Ravin, Greenberg & Zackin, P.A., 22 F.3d 1242, 1244
(3d Cir. 1994) (finding “arising in” jurisdiction over separately-filed malpractice action
because of the “[legal malpractice] claims’ connection with the debtors’ bankruptcy
petitions”). Consequently, the District Court had jurisdiction. We have appellate
jurisdiction under 28 U.S.C. § 1291.
       We exercise plenary review over an order dismissing a complaint under Rule
12(b)(6). With respect to affirmative defenses, such as res judicata, dismissal is proper if
application of the defense is apparent on the face of the complaint; we may also look
beyond the complaint to public records, including judicial proceedings. See Rycoline
Prod., Inc. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997); S. Cross Overseas
Agencies, Inc., 181 F.3d at 426.
                                              6
“complicated.” E. Minerals & Chems. Co. v. Mahan, 225 F.3d 330, 337 (3d Cir. 2000).

Unlike conventional civil litigation, a bankruptcy case is “not a discrete lawsuit” that

arises from a discrete event; rather it is a “forum in which any number of adversary

proceedings, contested matters, and claims will be litigated.” Id. As such, an order

confirming a plan of reorganization does not bar “every conceivable claim that could

have been brought in the context of a bankruptcy case over which the court would have

had jurisdiction.” Id. Instead, we must look to the individual proceedings within the

bankruptcy and ask whether the “the factual underpinnings, theory of the case, and relief

sought against the parties to the proceeding are so close to a claim actually litigated in the

bankruptcy that it would be unreasonable not to have brought them both at the same time

in the bankruptcy forum.” Id. at 337–38. This articulation of the “same cause of action”

test is nothing more than the essential similarity test applied to the unique circumstances

of the bankruptcy context. See id. at 338 n.14.

       Here, we agree that the Complaint is barred under this standard, although in so

finding we parse the proceedings before the Bankruptcy Court to a finer degree than did

the District Court.4 We focus on two such proceedings that give rise to claim preclusion

in this case: (1) the June 2013 Fee Application proceeding and (2) the 2015 Plan

confirmation proceeding and related motions to compel payment.

       To begin, the June 2013 Fee Application proceeding squarely presented the issue

of the Defendant’s provision of legal services up to that point in time because it sought

       4
         “An appellate court may affirm a result reached by the district court on different
reasons, as long as the record supports the judgment.” Guthrie v. Lady Jane Collieries,
Inc., 722 F.2d 1141, 1145 n.1 (3d Cir. 1983).
                                              7
compensation for opposing the January 2013 Relief from Stay Motion, which the

Complaint now alleges was deficient. Further, the application triggered a contested

matter under 11 U.S.C. § 330, see Fed. R. Bankr. P. 2016, and resulted in an order

awarding the Defendant fees for that work. Section 330 of the Code specifically obligated

the Bankruptcy Court to inquire into the nature and quality of these services, including

whether “[the Defendant] . . . demonstrated skill and experience in the bankruptcy field.”

11 U.S.C. § 330(a)(3)(E). The instant malpractice claim similarly turns on whether the

Defendant breached the duty of care he owed to his client in that situation, see McGrogan

v. Till, 771 A.2d 1187, 1193 (N.J. 2001) (citing Conklin v. Hannoch Weisman, 678 A.2d

1060, 1070 (N.J. 1996)), and requires consideration of “evidence demonstrating that [the

defendant’s] conduct failed to meet the appropriate standard of care,” Gans v. Mundy,

762 F.2d 338, 343 (3d Cir. 1985). Thus, these proceedings involved the same issue, and

by allowing compensation under § 330, the Bankruptcy Court impliedly found that the

Defendant’s services in responding to the January 2013 Relief from Stay Motion were at

least acceptable.

       In light of this, we conclude it was “unreasonable” for the Plaintiffs not to have

raised their claim then, especially given their knowledge of the claim and the ample

procedural mechanisms for them to do so. See Fed. R. Bankr. P. 7001(1) (permitting the

filing of adversary complaints “to recover money”); Fed. R. Bankr. P. 3007(b) (noting

that a party “may include [an] objection [to a contested matter] in an adversary

proceeding”); id. advisory committee’s note to 2007 amendments (“If a claim objection is

filed separately from a related adversary proceeding, the court may consolidate the

                                             8
objection with the adversary proceeding under Rule 7042.”); see also Capitol Hill Grp. v.

Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 490–93 (D.C. Cir. 2009);

Grausz v. Englander, 321 F.3d 467, 475 (4th Cir. 2003); In re Iannochino, 242 F.3d 36,

47 (1st Cir. 2001); In re Intelogic Trace, Inc., 200 F.3d 382, 388–89 (5th Cir. 2000).5 The

Plaintiffs counter that they did not know the extent of their damages at that time. But this

is no excuse for failing to oppose the application or apprise the Bankruptcy Court of the

claim. Had the Plaintiffs done so, the court could have stayed the contested fee

application or permitted discovery on the matter. See Fed. R. Bank. P. 9014.

       Similarly, the plan confirmation litigation and intertwined motions to compel

payment provided the Plaintiffs additional opportunities to either challenge the earlier

July 2013 Fee Order or raise the Defendant’s alleged failure to file monthly operating

reports. The Plaintiffs proposed a Plan that listed the Defendant’s allowed claim for fees

and provided for a right to payment. Yet they did not object to confirmation of that Plan,

disclose to creditors their intent to file a malpractice action in the Plan itself or in the

required disclosure under 11 U.S.C. § 1125, amend their asset schedules under 11 U.S.C.

§ 521 to reflect their contingent claim against the Defendant, or otherwise make their

discontent known to the Bankruptcy Court. Further, although they had the opportunity to

do so, the Plaintiffs did not object to the Defendant’s motion to compel payment of his

fees until the day after their plan was confirmed. Both of these proceedings touched again

on the propriety of the Defendant’s services to the Plaintiffs.


       5
       We cited In re Intelogic Trace, Inc. approvingly in Eastern Minerals. See E.
Minerals, 225 F.3d at 339 n.16.
                                                9
       This curious sequence of events, in our view, tends to show that the Plaintiffs

sought to avoid litigating their malpractice claim until after the conclusion of the

bankruptcy case. Such tactics are, in a word, concerning. For one, the Plaintiffs’

malpractice claim, which accrued as late as December 2013, was property of the

bankruptcy estate. See 11 U.S.C. § 1115(a) (“In a case in which the debtor is an

individual, property of the estate includes . . . all property . . . that the debtor acquires

after the commencement of the case but before the case is . . . converted.” (emphasis

added)); In re Cantu, 784 F.3d 253, 257–58 (5th Cir. 2015). The estate—and not the

Plaintiffs individually—suffered the harm of the Defendant’s malpractice. As a result, the

Plaintiffs’ failure to raise the claim during the course of the bankruptcy deprived the

estate of potential assets that could have been used to satisfy other claims. It also would

seem to have deprived creditors of the opportunity to negotiate over the disposition of

those funds when considering the Plaintiffs’ proposed plan. When pressed at oral

argument, Plaintiffs’ counsel could not persuasively explain why the Plaintiffs, in their

individual capacities, should now be entitled to these damages.

       Moreover, the efficient use of judicial resources favors litigating claims of

malpractice against estate professionals during the bankruptcy. The Bankruptcy Court

was in the unique position to judge the Defendant’s alleged malpractice, having been

intimately familiar with the parties and the filings throughout the case. See Davis v. Wells

Fargo, 824 F.3d 333, 341 (3d Cir. 2016) (noting goal of claim preclusion is to “avoid

piecemeal litigation and conserve judicial resources” (quoting Blunt v. Lower Merion

Sch. Dist., 767 F.3d 247, 277 (3d Cir. 2014)). Also, the Bankruptcy Judge approved the

                                               10
retention of the Defendant and had an interest in the way in which he represented the

debtors.

       To be clear, we do not say that in all instances a debtor who fails to disclose the

existence of a cause of action against his estate professional will be barred from pursuing

it in a post-bankruptcy action.6 The above observations merely bolster our conclusion

that, on the facts of this case, the June 2013 Fee Application, the Plan (which listed the

Defendant’s claim), and the Defendant’s motions to compel payment of his fees operate

to bar the Plaintiffs’ claim at this late juncture. These various proceedings put the issue of

the Defendant’s malpractice before the Bankruptcy Court to such a degree that it was

“unreasonable not to have brought [this malpractice claim] at the same time in the

bankruptcy forum.” Eastern Minerals, 225 F.3d at 338. Accordingly, we will affirm the

judgment of the District Court.




       6
          For example, a plaintiff may not be aware that she has been harmed until after
the bankruptcy concludes or there may have never been a fee application that raised the
issue. Suffice it to say that this is not the case here. Moreover, we note that other
doctrines, such as judicial estoppel, might or might not separately bar such claims. See
Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419–20 (3d Cir. 1988).
We do not reach the Defendant’s alternative argument to this effect because he failed to
raise it before the District Court.
                                             11
