12-3624-cv Paladini v. Capossela, Cohen, LLC
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 
**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A**  **PPENDIX 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**  **.** At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Thurgood Marshall United 2 States Courthouse, 40 Foley Square, in the City of New York, 3 on the 25 thday of March, two thousand thirteen. 4 5 PRESENT: J OHN M. W ALKER , J R ., 6 R ICHARD C. W ESLEY , 7 C HRISTOPHER F. D RONEY , 8 9 Circuit Judges

. 10 11 12 13 MARCELO PALADINI, 14 15 Plaintiff-Appellant , 16 17 -v.- 12-3624-cv 18 19 CAPOSSELA, COHEN, LLC, 20 21 Defendant-Appellee. 22 23 24 FOR APPELLANT: Douglas E. Spelfogel, Foley & Lardner 25 LLP, New York, NY (Stephen A. Aschettino, 26 Naomi D. Johnson, Aschettino Struhs LLP, 27 New York, NY, on the brief ). 28 29 FOR APPELLEE: Sophia Ree (Jennifer Wu, on the brief ), 30 Landman Corsi Ballaine & Ford P.C., New 31 York, NY. 32 33Appeal from the United States District Court for the 1 Southern District of New York (Preska, C.J .). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4
**AND DECREED**that the judgment of the district court be 5

**AFFIRMED**
. 6 Plaintiff-Appellant Marcelo Paladini (“Paladini”) 7 appeals the August 15, 2012 judgment of the United States 8 District Court for the Southern District of New York 9 (Preska, C.J. ) dismissing his claims pursuant to Federal 10 Rule of Civil Procedure 12(b)(6). 11 Paladini argues that Defendant-Appellant Capossela, 12 Cohen, LLC (“Capossela”) completed faulty corporate audits 13 and made negligent representations that caused an 14 overvaluation of his companies’ worth. Paladini claims the 15 overvaluation led him to take out two loans on behalf of his 16 companies, which he personally guaranteed, to facilitate a 17 buyout of the companies’ then co-owner. He contends that 18 inflated distributions were made to purchase the co-owner’s 19 overvalued shares, and that the companies then defaulted on 20 their loans and filed for bankruptcy. We assume the 21 parties’ familiarity with the underlying facts, the 22 procedural history, and the issues presented for review. 23
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2Paladini sued Capossela for auditor malpractice, 1 general malpractice, negligence, negligent 2 misrepresentation, indemnification, and breach of fiduciary 3 duty. The district court dismissed the auditor malpractice 4 claim because Paladini failed to plausibly plead that 5 Capossela’s alleged wrongful acts proximately caused any 6 harm. The district court then dismissed the remaining 7 claims as duplicative of the auditor malpractice claim and, 8 in the alternative, for failure to plausibly plead proximate 9

cause. 10 We affirm the dismissal of the auditor malpractice 11 claim for substantially the same reasons as the district 12 court. The wrongful acts that Paladini pleads with 13 requisite specificity occurred after his companies undertook 14 the loans and made the distributions. Those acts could not 15 have proximately caused Paladini’s harms. Contrary to 16 Paladini’s assertion, a district court can dismiss an action 17 based on proximate cause at the pleading stage. See, e.g. , 18 Lattanzio v. Deloitte & Touche LLP , 476 F.3d 147, 157 (2d 19 Cir. 2007). Paladini’s opening brief waives the district 20 court’s dismissal of the remaining claims as duplicative. 21 See Tolbert v. Queens College , 242 F.3d 58, 75 (2d Cir. 22 2001). 23

3Paladini also claims that the district court erred by 1 considering documents neither attached to the complaint nor 2 incorporated by reference into that pleading. Those 3 documents, however, were integral to the complaint and the 4 district court was free to consider them. See Int’l 5 Audiotext Network, Inc. v. Am. Tel. & Tel. Co. , 62 F.3d 69, 6 72 (2d Cir. 1995). 7 We have considered all of Paladini’s arguments on 8 appeal and find them to be without merit. For the foregoing 9 reasons, the judgment of the district court is hereby 10
**AFFIRMED**
. 11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13 14 15

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