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,

on the 25th 4 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