Castiglione v. Papa

423 F. App'x 10

2d Cir.

2011

Check Treatment

Docket

Elaine CASTIGLIONE, Plaintiff-Appellant, v. Mario J. PAPA, Esq., Individually and as Agent for or Employee of Hodgson Russ LLP, et al., Defendants-Appellees.

No. 10-2491-cv

United States Court of Appeals, Second Circuit.

May 23, 2011.

Credit for Acceptance of Responsibility

Finally, Costa argues that, in light of his plea agreement, the District Court erred in declining to apply a two-point sentencing reduction under U.S.S.G. § 3E1.1(a) for demonstrating acceptance of responsibility for his offense. It is well settled that the assessment of a defendant‘s contrition, credibility, and candor is a matter for the sentencing judge, see, e.g., United States v. Rivera, 96 F.3d 41, 43 (2d Cir.1996), and that a judge‘s unique position entitles his determination to “great deference on review,” Guidelines § 3E1.1 Application Note 5. As a result, the sentencing judge‘s finding as to whether the defendant has adequately demonstrated an acceptance of responsibility will not be disturbed unless it is “without foundation.” United States v. Fernandez, 127 F.3d 277, 285 (2d Cir.1997). Indeed, it is clearly established that a district court decision is not “without foundation” when it concludes that criminal conduct following the entry of a plea of guilty and making false statements to the U.S. Probation Office are inconsistent with acceptance of responsibility. Id.; see also United States v. Karro, 257 F.3d 112, 116-17 (2d Cir.2001) (affirming district court‘s decision not to credit defendant with acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 where defendant made false statements to the U.S. Probation Office). We therefore hold that the District Court did not err in declining to credit Costa for acceptance of responsibility following the revelation of the pawnshop fraud and the fact that he made false statements to the U.S. Probation Office.

CONCLUSION

We have considered all of Costa‘s arguments on appeal and find them to be without merit. For the reasons stated above, the order of the District Court is AFFIRMED.

Elaine Castiglione, pro se, Monmouth Beach, NJ, for Plaintiff-Appellant.

Kevin Kearney and Benjamin Ahlstrom, of counsel, Hodgson Russ LLP, Buffalo, NY, for defendants-appellees Mario J. Papa, Hodgson Russ LLP, Louis J. Castiglione, Jr., Barbara K. Castiglione, Christine A. Chaite, and Gem Jewelers Inc.

Andrew P. Karamouzis, Moran Karamouzis LLP, Rockville Centre, NY, for defendants-appellees KeyBank, National Association, KeyCorp, and Mark Lasch.

Present: JOSE A. CABRANES, DENNY CHIN, Circuit Judges, JANE A. RESTANI, Judge.^*

SUMMARY ORDER

Appellant Elaine Castiglione (“Castiglione“), proceeding pro se, appeals the District Court‘s judgment denying her motion for entry of default judgment against defendant Carl Kempf and granting defendants’ motions to dismiss her amended complaint. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

I. Motion for Entry of Defendant Kempf‘s Default

A plaintiff must “serve[] on every party a pleading filed after the original complaint.” Fed.R.Civ.P. 5(a)(1)(B). Service is proper if it complies with the methods outlined under Federal Rule of Civil Procedure 4(e)(2) or under the law of the state where the district court is located or where service is made. See Fed.R.Civ.P. 4(e). Generally, a defendant must serve a responsive pleading within 21 days after being served with the summons and complaint. See Fed.R.Civ.P. 12(a)(1)(A)(i). “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party‘s default.” Fed.R.Civ.P. 55(a). Afterwards, “a default judgment ordinarily must be entered by the district judge” under Rule 55(b)(2). See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011). We review for abuse of discretion a district court‘s ruling on a motion for entry of a party‘s default or for entry of default judgment, see Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 171 (2d Cir. 2001), bearing in mind that we have expressed a “strong preference” for resolving disputes on the merits, and that a default judgment is “the most severe sanction which the court may apply,” see New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005).

Here, the District Court did not abuse its discretion in denying Castiglione‘s motion for entry of Kempf‘s default, which the Court construed as a motion for default judgment, because Kempf never defaulted. Although the record demonstrates that Kempf was properly served with the summons and original complaint on December 16, 2009, Castiglione filed her amended complaint less than 21 days later, on December 23, 2009, see ROA doc. 15, thus eliminating Kempf‘s obligation to respond to the original complaint and averting his default, see Fed. R.Civ.P. 15(a)(1)(B). Although the parties dispute whether service of the amended complaint by mail on Kempf was proper, the District Court did not abuse its discretion based upon the record before us. Even assuming service was proper, we affirm the denial of the default on alternative grounds. As there was no prejudice to plaintiff in denying entry of the default, Kempf had meritorious defenses to the claims against him, and there is a strong preference in this Circuit in favor of resolving disputes on the merits, entry of a default was properly denied.

II. Motions to Dismiss

In reviewing the dismissal of a complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), we review a district court‘s factual findings for clear error and its legal conclusions de novo, construing the complaint liberally, accepting all factual allegations therein as true, and drawing all reasonable inferences in plaintiff‘s favor. See Morrison v. Nat‘l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (involving Rule 12(b)(1) motion); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (involving Rule 12(b)(6) motion). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although factual allegations in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A claim will have “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Having conducted an independent review of the record in light of these principles, we affirm the judgment on appeal for substantially the same reasons stated by the District Court in its thorough and well-reasoned decision. See Castiglione v. Papa, et al., No. 1:09-CV-0967 (LEK/DRH), 2010 WL 2044688 (N.D.N.Y. May 24, 2010). Although Castiglione asserts that the District Court improperly applied the Rooker-Feldman doctrine because she was attempting to raise an independent constitutional claim, this assertion is belied by her amended complaint. The majority of Castiglione‘s factual allegations related to defendants’ alleged efforts fraudulently to probate the will and codicil of Louis Castiglione, Sr., which were at issue in the state court surrogate proceedings, including her allegations relating to the bribery of a state court judge. Similarly, the majority of the legal claims articulated in the amended complaint were state law claims related to the fraud that allegedly occurred in connection with the probate of the will. Under these circumstances, the District Court properly applied the criteria we articulated in Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85-86 (2d Cir.2005) in concluding that Castiglione‘s complaint was barred by the Rooker-Feldman doctrine. As noted by the District Court, Castiglione cannot avoid application of the Rooker-Feldman doctrine simply by “presenting in federal court a legal theory not raised in state court,” for example, by framing her claims under §§ 1983 or 1985. See Hoblock, 422 F.3d at 86. To the extent that Castiglione attempted to assert claims against defendants that were not named in the underlying state court case, the District Court correctly dismissed her claims against those defendants for failure to state a cause of action.

In any event, the District Court properly concluded that Castiglione‘s § 1983 claim—which depended entirely on her allegations of judicial bribery—was not sufficiently plausible to survive defendants’ motions to dismiss, and correctly dismissed Castiglione‘s § 1985 claim, which Castiglione does not challenge on appeal. Having dismissed Castiglione‘s only federal law claims, the District Court should have declined to exercise supplemental jurisdiction over her remaining state law claims. See 28 U.S.C. § 1367; United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (“Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.“); Powell v. Gardner, 891 F.2d 1039, 1047 (2d Cir.1989) (“[I]n light of the proper dismissal of the § 1983 claim against [the defendants], the district court should have declined to exercise pendent jurisdiction over [the plaintiff‘s] state-law claims....“). We may affirm the District Court‘s judgment on this additional basis. See Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir.2010) (“We may affirm the district court‘s decision on any ground appearing in the record.“).

CONCLUSION

We have considered Castiglione‘s other arguments on appeal and have found them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.

Notes

The Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation.

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