12-3624-cv
Paladini v. Capossela, Cohen, LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of March, two thousand thirteen.
5
6 PRESENT: JOHN M. WALKER, JR.,
7 RICHARD C. WESLEY,
8 CHRISTOPHER F. DRONEY,
9
10 Circuit Judges.
11
12
13
14 MARCELO PALADINI,
15
16 Plaintiff-Appellant,
17
18 -v.- 12-3624-cv
19
20 CAPOSSELA, COHEN, LLC,
21
22 Defendant-Appellee.
23
24
25 FOR APPELLANT: Douglas E. Spelfogel, Foley & Lardner
26 LLP, New York, NY (Stephen A. Aschettino,
27 Naomi D. Johnson, Aschettino Struhs LLP,
28 New York, NY, on the brief).
29
30 FOR APPELLEE: Sophia Ree (Jennifer Wu, on the brief),
31 Landman Corsi Ballaine & Ford P.C., New
32 York, NY.
33
1 Appeal from the United States District Court for the
2 Southern District of New York (Preska, C.J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7 Plaintiff-Appellant Marcelo Paladini (“Paladini”)
8 appeals the August 15, 2012 judgment of the United States
9 District Court for the Southern District of New York
10 (Preska, C.J.) dismissing his claims pursuant to Federal
11 Rule of Civil Procedure 12(b)(6).
12 Paladini argues that Defendant-Appellant Capossela,
13 Cohen, LLC (“Capossela”) completed faulty corporate audits
14 and made negligent representations that caused an
15 overvaluation of his companies’ worth. Paladini claims the
16 overvaluation led him to take out two loans on behalf of his
17 companies, which he personally guaranteed, to facilitate a
18 buyout of the companies’ then co-owner. He contends that
19 inflated distributions were made to purchase the co-owner’s
20 overvalued shares, and that the companies then defaulted on
21 their loans and filed for bankruptcy. We assume the
22 parties’ familiarity with the underlying facts, the
23 procedural history, and the issues presented for review.
24
2
1 Paladini sued Capossela for auditor malpractice,
2 general malpractice, negligence, negligent
3 misrepresentation, indemnification, and breach of fiduciary
4 duty. The district court dismissed the auditor malpractice
5 claim because Paladini failed to plausibly plead that
6 Capossela’s alleged wrongful acts proximately caused any
7 harm. The district court then dismissed the remaining
8 claims as duplicative of the auditor malpractice claim and,
9 in the alternative, for failure to plausibly plead proximate
10 cause.
11 We affirm the dismissal of the auditor malpractice
12 claim for substantially the same reasons as the district
13 court. The wrongful acts that Paladini pleads with
14 requisite specificity occurred after his companies undertook
15 the loans and made the distributions. Those acts could not
16 have proximately caused Paladini’s harms. Contrary to
17 Paladini’s assertion, a district court can dismiss an action
18 based on proximate cause at the pleading stage. See, e.g.,
19 Lattanzio v. Deloitte & Touche LLP, 476 F.3d 147, 157 (2d
20 Cir. 2007). Paladini’s opening brief waives the district
21 court’s dismissal of the remaining claims as duplicative.
22 See Tolbert v. Queens College, 242 F.3d 58, 75 (2d Cir.
23 2001).
3
1 Paladini also claims that the district court erred by
2 considering documents neither attached to the complaint nor
3 incorporated by reference into that pleading. Those
4 documents, however, were integral to the complaint and the
5 district court was free to consider them. See Int’l
6 Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69,
7 72 (2d Cir. 1995).
8 We have considered all of Paladini’s arguments on
9 appeal and find them to be without merit. For the foregoing
10 reasons, the judgment of the district court is hereby
11 AFFIRMED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
4