10-2491-cv
Castiglione v. Papa, et al.

                                       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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 23rd day of May, two thousand eleven.

PRESENT:

           JOSÉ A. CABRANES,
           DENNY CHIN,
                         Circuit Judges,
           JANE A. RESTANI,
                         Judge.*

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ELAINE CASTIGLIONE,

                                 Plaintiff-Appellant,

           v.                                                                              No. 10-2491-cv

MARIO J. PAPA, ESQ., INDIVIDUALLY AND AS AGENT FOR
OR EMPLOYEE OF HODGSON RUSS LLP, ET AL.,

                                 Defendants-Appellees.

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FOR PLAINTIFF-APPELLANT:                                          Elaine Castiglione, pro se, Monmouth Beach, NJ.



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

by designation.

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FOR DEFENDANTS-APPELLEES:                          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.

       Appeal from a judgment of the United States District Court for the Northern District of New York
(Lawrence E. Kahn, Judge).

    UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is AFFIRMED.

       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, 08-4804-cv, 09-1345-cv, 

, *10 (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., 

, 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, 

, 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


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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., 

, 170 (2d Cir. 2008) (involving Rule
12(b)(1) motion); Chambers v. Time Warner, Inc., 

, 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, 

, 570 (2007). Although factual allegations in the complaint are assumed
to be true, this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 

, 1949 (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.” 

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., 1:09-CV-0967 (LEK/DRH), 

(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 in concluding that Castiglione’s complaint was barred by the Rooker-Feldman doctrine. See 

, 85-86 (2d Cir. 2005). 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 

. 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.



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        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, 

, 726 (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, 

, 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, 

, 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.



                                          FOR THE COURT,
                                          Catherine O’Hagan Wolfe, Clerk of Court




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