NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff Dr. Gary Krugman ("Krugman") appeals from an order entered by the Law Division on November 8, 2013, dismissing his complaint against defendants Mazie Slater Katz and Freeman, L.L.C. ("Mazie Slater") and Eric D. Katz ("Katz") with prejudice. Krugman also appeals from an order entered by the court on January 31, 2014, denying his motion for reconsideration of the November 8, 2013 order. We affirm.

I.

This appeal arises from the following facts. In November 2006, Michael H. Kirsch, D.D.S. ("Kirsch") filed a complaint against Delta Dental of New Jersey ("DDNJ") in the Law Division individually and on behalf of all similarly situated dental providers. Kirsch asserted various claims against DDNJ with regard to its processing and payment of claims for dental benefits. The complaint sought $5 million in damages and injunctive relief.

In January 2007, the lawsuit was removed to the United States District Court for the District of New Jersey.

On November 25, 2011, the Federal District Court entered an order conditionally designating Jungels as representative of the settlement class ("SC"). The order stated that the SC consisted of all dental providers and practices who were billing dentists on claims submitted to DDNJ and/or received claim payments from DDNJ from November 17, 2000 to August 31, 2011 for services provided to persons insured by DDNJ or entitled to benefits under a plan for which DDNJ processed claims. The order preliminarily approved Mazie Slater and Katz as class counsel.

The Federal District Court's order scheduled a hearing on the proposed settlement, so that the court could determine, among other things, whether: the lawsuit should be finally certified as a class action for settlement purposes; the settlement of the class action should be approved as fair, reasonable and adequate; the SC members should be bound by the agreement; and the application for attorneys' fees should be approved. The order stated that any SC member "who does not enter an appearance will be represented by [c]lass [c]ounsel."

On February 7, 2012, Marc C. Pakrul ("Pakrul"), an attorney with Tomkins, McGuire, Wachenfeld & Barry, filed a letter with the Federal District Court stating that the firm was "substituted counsel" for Krugman. Pakrul objected to the application for attorneys' fees. He asserted that the lodestar calculation and the "marginal settlement" should result in an award of counsel fees that would be "far less than the $575,000 sought by class counsel." Pakrul stated that the work performed by counsel did not result in the recovery of any monies or any "substantial benefit to the class[.]" He said most of the time devoted to the case related to claims which had been abandoned. Krugman was the only SC member to object to the negotiated fees.

The Federal District Court approved the settlement and the request for $575,000 in attorneys' fees. Krugman appealed the order approving the fee request to the Court of Appeals for the Third Circuit. DDNJ apparently refused to pay the fee award until the appeal was resolved. Mazie Slater then filed an action in the Law Division against Krugman, alleging that the appeal constituted tortious interference with the firm's prospective economic advantage in receiving the fee award.

The Law Division dismissed the complaint "without prejudice pending the outcome of the pending [federal] appeal." Mazie Slater Katz & Freeman, L.L.C. v. Krugman, No. A-0718-12 (App. Div. May 6, 2013) (slip op. at 2-3) (internal quotation marks omitted). Krugman appealed, arguing that the trial court should have dismissed the complaint with prejudice because class counsel could not sue a class member who exercised his right to object to the settlement negotiated on behalf of the class. Krugman also argued that the trial court should have granted his motion for counsel fees and sanctions pursuant to Rule 1:4-8.

We affirmed the Law Division's order dismissing Mazie Slater's complaint against Krugman without prejudice. Mazie Slater, supra, No. A-0718-12 (slip op. at 6). We also held that the Law Division could have properly refused to entertain the application for fees and sanctions based on the papers filed in the trial court, and stated that the application could be renewed "following disposition of the federal appeal." Id. at 5-6. Krugman sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied the petition. Mazie Slater Katz & Freeman, L.L.C. v. Krugman, 216 N.J. 5 (2013).

In July 2013, Krugman filed his complaint in this action against Mazie Slater and Katz individually. In the complaint, Krugman asserted that Mazie Slater had been class counsel in the Kirsch litigation, and that it had negotiated a settlement in which the class members received no monetary relief but the firm received $575,000. Krugman said that all class members had the right to object to the settlement, and that he exercised that right. He claimed defendant filed an action against him for tortious interference with their right to receive legal fees and that the action had been dismissed. He claimed defendants "had previously used this same tactic" in another case, where the class members "received no monetary compensation" and the firm received "a substantial legal fee."

Krugman asserted that defendants' "acts of . . . suing their own client in order to force the withdrawal of the objection constitutes a malicious abuse of process." He claimed that defendants' "wrongful acts . . . constitute the tort of outrage." In addition, he claimed that, as class counsel, defendants breached their professional duties and committed legal malpractice by bringing a lawsuit against "their own client for exercising the right to object" to the settlement, as specifically permitted by the "settlement agreement which defendants negotiated." Krugman sought, among other relief, compensatory and punitive damages.

In July 2013, the Third Circuit filed an unpublished opinion affirming the Federal District Court's award of $575,000 in attorneys' fees to Mazie Slater, finding that the court did not abuse its discretion in granting the fee application. Kirsch v. Delta Dental of New Jersey, No. 12-1684 (3d Cir. July 31, 2013). Krugman filed a petition with the Court of Appeals for rehearing en banc. On August 26, 2013, the court denied the petition.

In September 2013, defendants filed a motion in the trial court to dismiss Krugman's complaint pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief may be granted. They argued that Krugman had not stated a cognizable claim for malicious abuse of process; outrage, which is the intentional infliction of emotional distress; or legal malpractice. Defendants also filed a motion to disqualify Bruce Nagel ("Nagel") and Nagel Rice, L.L.P. from representing Krugman in the lawsuit. Defendants argued that Nagel is a fact witness and that his firm should be disqualified from representing Krugman.

In support of their motion, defendants submitted various documents to the court. These documents included an article about this case and the Kirsch litigation in an on-line report by the New Jersey Law Journal; a copy of an opinion of the Federal District Court in another class action in which Mazie Slater represented the plaintiffs and Nagel filed a certification in support of a person who objected to the settlement agreement's fee award; our opinion in Krugman's appeal challenging the dismissal without prejudice of Mazie Slater's action alleging tortious interference; the Federal District Court's order and Third Circuit's opinion in the Kirsch matter; and various other unpublished court opinions.

Krugman opposed the motions. He argued that on a Rule 4:6-2(e) motion, the court was limited to reviewing the claims as asserted in the complaint. He argued that if the court considered the other documents presented by defendants, it was required to treat the motion as one for summary judgment and that the complaint should not be dismissed because there had not been any discovery in the matter. Defendants responded by arguing that the court could consider the documentary exhibits because they were public records.

The motion judge placed his decision on the record. The judge initially determined that he could consider the documents submitted by defendants because they were public records. The judge then concluded that there was no legal basis for Krugman's claims of malicious use of process, intentional infliction of emotional distress, or legal malpractice. The judge also determined that, in view of his decision, there was no need to address the punitive damages claim or Krugman's motion to disqualify Nagel and his law firm. The judge memorialized his decision in an order filed on November 8, 2013.

Krugman then filed a motion for reconsideration, which defendants opposed. After hearing oral argument from counsel, the judge placed his decision on the record, reaffirming his earlier decision to dismiss the complaint. The judge determined that Krugman had not established a basis for reconsideration of his earlier decision. The judge stated that he had properly considered the documents related to the litigation, which were public records. The judge also stated that dismissal of the complaint with prejudice was proper, because the claims as alleged were without any legal basis. The judge entered an order dated January 31, 2014, denying Krugman's motion for reconsideration.

Krugman appeals and argues that the motion judge erred by:

II.

We reject Krugman's argument that the court erred by considering documents outside the pleading without converting the motion into one for summary judgment. Rule 4:6-2 provides in pertinent part that if on a motion under subsection (e) of the rule "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 by [Rule] 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion."

We note, however, that our Supreme Court has stated that, in ruling on a Rule 4:6-2(e) motion to dismiss, the court may consider "`allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir.), cert. denied, 543 U.S. 918, 125 S.Ct. 271, 160 L. Ed. 2d 203 (2004)).

Here, Krugman's complaint referenced the settlement in the Kirsch litigation and his objection to Mazie Slater's fee request. Krugman's complaint also referenced Mazie Slater's prior lawsuit against him. The motion judge properly considered documents related to those court proceedings because they formed the basis for Krugman's claim. Furthermore, N.J.R.E. 201(b) expressly permits a court to take judicial notice of "records of the court in which the action is pending and of any other court of this state or federal court sitting for this state."

The motion judge did not, as Krugman claims, rely upon any statement in the judicial records for the truth of the facts set forth therein. Rather, the judge relied upon the records solely for the purpose of establishing the issues raised and the courts' resolution of those issues, as they related to the claims asserted in this case. Cf. State v. Silva, 394 N.J.Super. 270, 277-78 (App. Div. 2007) (noting the distinction between a court taking judicial notice that a case had been decided in a particular way and a court taking judicial notice of another court's findings of fact).

Thus, the judge's consideration of the records from the prior judicial proceedings was in all respects proper, and the judge was not required to convert defendants' motion to dismiss into a summary judgment motion. We are therefore convinced that the judge did not err by treating the motion as one seeking dismissal under Rule 4:6-2(e) for failure to state a claim upon which relief may be granted.

III.

Krugman argues that the motion judge erred by finding that his claims failed as a matter of law. We cannot agree.

Where, as in this case, a defendant moves pursuant to Rule 4:6-2(e) to dismiss the complaint for failure to state a claim upon which relief can be granted, the court must determine "whether a cause of action is `suggested' by the facts" alleged. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). In making this determination, the court must examine "the legal sufficiency of the facts alleged on the face of the complaint." Ibid.

The court must "`search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim,'" ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J.Super. 244, 252 (App. Div. 1957)), recognizing that, when appropriate, the plaintiff may be afforded the opportunity to amend the complaint, if necessary. Ibid.

A. Legal Malpractice.

In his complaint, Krugman alleged that defendants committed legal malpractice by filing a lawsuit against him alleging that he had tortiously interfered with their right to receive legal fees as class counsel in the Kirsch litigation. Krugman alleged that, by bringing that action, defendants breached a duty owed to him as a client, since he was a member of the class that defendants were representing in Kirsch.

"[A] legal malpractice action has three essential elements: `(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff.'" Jerista v. Murray, 185 N.J. 175, 190-91 (2005) (quoting McGrogan v. Till, 167 N.J. 414, 425 (2001)). Here, the motion judge correctly found that Krugman failed to plead facts sufficient to state a cause of action for legal malpractice because of the absence of an attorney-client relationship between the parties when defendants filed their lawsuit against plaintiff.

As noted, in the Kirsch matter, Krugman was a member of the putative class of persons on whose behalf the complaint was filed in the Federal District Court. Kirsch and then Jungels were conditionally designated as representatives of the SC, and Mazie Slater was counsel for the SC. When the matter was settled, the Federal District Court issued an order allowing members of the SC to withdraw from the class, or remain as SC members and file objections to the settlement.

The record of the proceedings in the Federal District Court shows that Krugman objected to the settlement. Krugman retained an attorney, who entered an appearance as substitute counsel, and objected to Mazie Slater's fee application. At that point, Krugman's interests diverged from those of the other class members, and class counsel owed a duty to the class as a whole, and owed no duty to Krugman as an objector.

This conclusion is supported by Lazy Oil Co. v. Witco Corp., 166 F.3d 581 (3d Cir.), cert. denied, 528 U.S. 874, 120 S.Ct. 178, 145 L. Ed. 2d 150 (1999). There, certain parties objected to a class action settlement and sought the disqualification of class counsel. Id. at 583-84. The objectors argued that counsel had an impermissible conflict of interest because, in light of the objections, counsel was only representing the parties seeking approval of the settlement, who had become adverse to the objectors whom counsel had previously represented. Id. at 588.

The court recognized that once parties object to a class action settlement, class counsel is no longer acting as their attorney, and concluded that

In his brief, Krugman concedes that "[t]he attorney-client relationship between [class] counsel and an absent class member is destroyed when an objector objects to the class settlement, and his interests become adverse to those of the class[.]" Indeed, as noted by the Third Circuit in Lazy Oil Co., once a class member objects to the settlement negotiated on his or her behalf, class counsel becomes that party's "former counsel." Lazy Oil Co., supra, 166 F.3d at 590. Simply put, the attorney-client relationship no longer exists.

Krugman argues, however, that the attorney-client relationship is not severed when the class member's objection is only to class counsel's fees. We are not persuaded by this contention because DDNJ's agreement to pay Mazie Slater's fees was a part of the settlement that had been negotiated on behalf of the putative class members. In essence, Krugman's objection to the fee request was an objection to the settlement.

We conclude that because Krugman objected to the settlement and retained his own attorney to present his objection to the Federal District Court, the attorney-client relationship between Krugman as a putative class member and Mazie Slater as class counsel was severed. At that point, Mazie Slater's duty was to the class as a whole, and the firm no longer had an attorney-client relationship with Krugman.

The legal malpractice claim that Krugman asserted in this action arises from the lawsuit that Mazie Slater filed when the firm did not have an attorney-client relationship with him. Thus, as the motion judge correctly determined, in the absence of such a relationship, Krugman's legal malpractice claim failed as a matter of law.

B. Malicious Use of Process.

Krugman claimed that defendants filed the prior Law Division action to intimidate him into withdrawing his objection to the fees awarded to the firm in the Kirsch matter. Krugman argues that he pled sufficient facts to support a claim against defendants for malicious use of process. We do not agree.

To prevail on such a claim, a plaintiff must establish that (1) the suit was brought without probable cause, (2) "it was actuated by malice," (3) it has been terminated favorably to plaintiff, and (4) plaintiff suffered a special grievance. Mayflower Indus. v. Thor Corp., 15 N.J.Super. 139, 152 (Ch. Div. 1951), aff'd, 9 N.J. 605 (1952). Here, the motion judge correctly determined that Krugman failed to allege sufficient facts to support this claim.

The record shows that Mazie Slater's prior Law Division action was not terminated favorably to Krugman. As we have explained, the Law Division dismissed the complaint without prejudice pending the outcome of Krugman's appeal to the Third Circuit from the Federal District Court's order approving Mazie Slater's fee application in the Kirsch case.

We affirmed the Law Division's dismissal order and rejected Krugman's contention that the court should have dismissed the complaint with prejudice. Mazie Slater, supra, No. A-0718-12 (slip op. at 6). We also refused to consider Krugman's claim that the trial court erred by failing to award him counsel fees and sanctions pursuant to Rule 1:4-8. Id. at 5-6. It is undisputed that the claim was not reinstated.

Thus, in the prior lawsuit, the Law Division never addressed the merits of Mazie Slater's claim against Krugman. The court merely delayed consideration of the matter, and specifically ruled that Mazie Slater could reinstate the complaint following Krugman's federal appeal.

Delayed consideration of a claim, as occurred here, is not a favorable disposition for purposes of establishing a claim of malicious abuse of process. Accordingly, the motion judge correctly determined that Krugman's claim of malicious use of process failed as a matter of law.

C. Intentional Infliction of Emotional Distress.

Krugman also alleged that defendants' filing of the prior Law Division action constituted the tort of outrage, which is analogous to the tort of intentional infliction of emotional distress. On appeal, Krugman argues that he pled sufficient facts to support this claim. Again, we disagree.

Krugman argues that defendants acted outrageously by filing a complaint against him "despite their attorney-client relationship." He also argues that the lawsuit was filed for no other reason than to intimidate him so that he would withdraw his objection to the fees awarded in the Kirsch case.

To establish a cause of action for outrage, or the intentional infliction of emotional distress, "[a] plaintiff must establish [1] intentional and [2] outrageous conduct by the defendant, [3] proximate cause, and [4] distress that is severe." Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988).

The intent requirement may be satisfied where the defendant intends "both to do the act and to produce emotional distress." Ibid. It may also be satisfied "when the defendant acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow." Ibid.

The second requirement may only be satisfied by conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Ibid. (internal quotation marks and citation omitted).

In addition, the third element is satisfied where the defendant's actions are "the proximate cause of the plaintiff's emotional distress." Ibid. The fourth element is established where the distress is "so severe that no reasonable man could be expected to endure it." Id. at 366-67 (internal quotation marks and citation omitted).

We are convinced that Krugman's complaint failed to set forth sufficient facts suggesting a cause of action under these standards. As we noted previously, Mazie Slater filed the prior Law Division action at a point when it no longer had an attorney-client relationship with Krugman.

Furthermore, the filing of that complaint under the circumstances we have described does not constitute the sort of outrageous, extreme, atrocious or intolerable action required for a claim of intentional infliction of emotional distress. Moreover, the complaint lacks any factual allegation that the filing of the complaint caused Krugman to sustain any particular emotional distress, let alone distress of the severity essential to support the claim.

We have considered the other arguments advanced by Krugman on appeal, including his contention that the complaint should not have been dismissed with prejudice. We conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.