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Castiglione v. Papa

May 24, 2010



On August 26, 2009, Plaintiff Elaine Castiglione ("Plaintiff"), acting pro se, filed her Complaint against Defendants Louis J. Castiglione, Jr.; Barbara K. Castiglione; Christine A. Chaite; Gem Jewelers, Inc. ("Gem Jewelers");*fn1 Mario Papa; Hodgson Russ LLP;*fn2 Carl J. Kempf; Mark P. Lasch; Key Private Bank; KeyBank, N.A.; KeyCorp;*fn3 Judge Polly A. Hoye; and Judge Karen K. Peters*fn4 (collectively, "Defendants"). Dkt. No. 1. On December 23, 2009, Plaintiff amended her Complaint, deleting Key Private Bank as a Defendant, and, pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 28 U.S.C. § 1367, alleging constitutional and state law violations by the remaining Defendants. Am. Compl. (Dkt. No. 15). Presently before the Court are Motions to dismiss filed separately by the Castiglione and Hodgson Russ Defendants (Dkt. No. 23); the Judicial Defendants (Dkt. No. 24); and the KeyBank Defendants (Dkt. No. 26); as well as Plaintiff's Cross-Motion seeking a stay, sanctions, and other forms of relief (Dkt. No. 34); Plaintiff's request for entry of default judgment as to Defendant Carl J. Kempf (Dkt. No 37); Defendant Kempf's Cross-Motion in opposition to default judgment and request to join the Hodgson Russ Defendants' Motion to dismiss (Dkt. No. 40); and Plaintiff's Motion for service costs and other relief (Dkt. No. 38).


Plaintiff, a pro se litigant, asserts that each of the named Defendants played a role in an alleged conspiracy ultimately meant to deprive her of her rightful inheritance under her father's will and accomplished through constitutional and state law violations. The precise facts and legal claims asserted by Plaintiff are difficult to discern, though her broad allegations are apparent.

Louis J. Castiglione, Plaintiff's father died on November 12, 2004, leaving his wife, Elaine Castigilione, and two children, Defendant Louis Castiglione, Jr. ("Junior") and Plaintiff Elaine Castiglione, as well as Plaintiff's daughter, Defendant Christine Chaite ("Chaite"). Plaintiff's mother sought probate of an unsigned copy of Plaintiff's father's will ("the will") and codicil ("the codicil") in the New York State Surrogate Court. Plaintiff challenged the aforementioned will and codicil on various grounds relating to their authenticity and whether they accurately reflect her father's testamentary intent. Defendant Judge Polly A. Hoye ("Hoye"), a Fulton County Surrogate Court Judge, heard the challenges, "found them to be frivolous," and, on January 11, 2006, allowed probate of the will. See Dkt. No. 23 Ex. A ("Hoye Order") at 8. Plaintiff appealed this decision, and on March 29, 2007, Defendant Karen K. Peters ("Peters"), a New York Supreme Court Justice serving on the Appellate Division, New York Supreme Court, Third Judicial Department, affirmed the Hoye Order, with Judges Spain, Mugglin, Rose, and Lahtinen (all non-parties in this action) concurring. See Dkt. No. 23 Ex. B ("Peters Order").

The instant action stems from events leading up to and occurring during the probate process. Plaintiff claims not to be appealing the state court rulings regarding the actual probate of her father's will, insisting instead that she is alleging constitutional and state violations committed by various actors participating in the probate process.

Plaintiff's Amended Complaint begins with allegations seeking to document the "ruthless and unlawful measures that Junior was willing to take in order to ensure his inheritance would . . . jump for 50% to 100% . . . . [by] depriving his ill sister of any financial benefit [under the will] . . . [and] to also commit 'the perfect murder' of his only remaining sibling." Am. Compl. ¶ 2. Primarily, Plaintiff alleges that Junior, in a display of "sociopathic vindictiveness" toward her, forged their father's signature on the codicil, fraudulently created an unsigned version of the will for use in the Surrogate Court hearing Plaintiff's probate challenge to the will, fraudulently concealed parental assets, unduly influenced Plaintiff's father and mother, and, in conspiracy with Defendant Mario Papa ("Papa"), an attorney and relative, sought to bribe judicial figures, namely Defendants Hoye and Peters, to induce a fraud upon the court and achieve a predetermined outcome to Plaintiff's probate challenge. Id. ¶¶ 3-4, 8, 12.

Plaintiff claims that Papa, acting individually and as an agent of his law firm, Defendant Hodgson Russ, LLP, played an instrumental role in the alleged conspiracy, which she claims "divest[ed] Plaintiff [of her] due process rights in the Probate matter." Id. Plaintiff alleges that Papa taught Junior how to conceal unnamed assets, and then, in breach of fiduciary duties and in furtherance of a fraud upon the court, advised Junior to create a codicil naming the latter as executor of the trust and last will and endowing him with authority to remove all trust funds. This latter power, it is alleged, was designed to ensure, and did ensure, the cooperation of Defendants Mark P. Lasch ("Lasch"), the trustee of a trust created by the will, and KeyBank, N.A. and KeyCorp, the institutions in which the funds were held. Id. ¶6. Lasch, Plaintiff alleges, acting individually and as an agent of the KeyBank Defendants, breached his fiduciary obligations as trustee,*fn5 was unjustly enriched, and knowingly participated in the conspiracy to conceal assets and defraud the court and Plaintiff, by going along with the scheme orchestrated by Junior and Papa.*fn6 Id.

Plaintiff alleges that Junior, Papa, and Lasch's alleged scheme to defraud was further secured when Papa "enlisted the help the help of [Defendant Carl] Kempf to create fraudulent documents and to fraudulently misrepresent facts at oral argument at Appeal."*fn7 Id. Junior's wife, Defendant Barbara Castiglione and niece (Plaintiff's daughter) Defendant Christine Chaite "were also given supportive roles to play in the fraud." Id. Plaintiff does not allege any further facts about what those supportive role included. Plaintiff sues Gem Jewelers, of which Barbara Keller Castiglione is allegedly the agent, owner, principle, stockholder, or employee. Am. Compl. at 10.

Plaintiff apparently seeks to hold Gem Jewelers liable for the role played by Barbara Keller Castiglione, or derivatively, for the acts of Barbara Keller Castiglione's husband, Papa. Id.

Finally, Plaintiff alleges that Junior, Papa, and the other Defendants secured their unlawful goals through providing bribes to the Judicial Defendants in exchange for "a predetermined case outcome" in which the Judicial Defendants would accept the fraudulent codicil and a testator witness' affidavit as accurate and reliable. Id. 6-12. Plaintiff alleges that neither Judge Hoye nor Peters truly believed these documents to be authentic, but rather participated in the fraud for their personal gain. Id. Plaintiff does not assert the form or value of the bribes; in fact, her Amended Complaint asks the Judicial Defendants very directly "what was the price of your integrity?". Dkt. No. 15 ¶¶ 9, 12. She alleges, however, that certain occurrences attest to the fact that bribes were made. As to Judge Hoye, these include four "secret ex parte meetings" between Hoye and Papa prior to Hoye's Order and an "invitation" by Hoye for Plaintiff to appeal her decision. Id. ¶ 8-9.

Plaintiff became aware of the ex parte meetings after discovering court documents, which mention them and allegedly read as "a veritable contractus criminis for predetermined case outcome." She does not attach or otherwise describe these documents other than to state that they evince those "terms and conditions [that] were precisely stated by Papa and precisely fulfilled by Hoye." Id. ¶ 11.

As to Judge Peters, Plaintiff alleges she also partook in ex parte contacts, admitted hearsay evidence, and eventually issued an opinion "affirming Hoye's Opinion in the face of all of Papa's fraud upon a court and bogus documents." Id. ¶ 12. The Peters Order allegedly "bear[s] no relationship to either the facts of the case or controlling law and, remarkably, directly affirms that it is OK to divest a party of their Federal rights to due process [in a manner] . . . this very Appellate tribunal is well on record" as holding is a basis for reversal. Id. From this, Plaintiff concludes that Peters delivered her opinion in exchange for a bribe.

Plaintiff admits that the facts in her Amended Complaint are not fully developed. Am. Compl.; see also Dkt. No. 34 at 56. Plaintiff contends that the "full facts and causes of action against each defendant" will be included in a forthcoming second amended complaint. Am. Compl. at 1, see also Dkt. No. 34 at 56. Plaintiff has been unable to provide these facts and causes of action as a result of medical issues, which, because she is acting pro se, have prevented her from being able to craft a detailed complaint. See Dkt. No. 34 at 56. Defendants, meanwhile, have filed three separate Motions to dismiss (Dkt. Nos. 23, 24, 26). Defendant Kempf was not party to any of these Motions and filed no response to Plaintiff's Amended Complaint, claiming not to be properly served until May 5, 2010 at the earliest, see Dkt. No. 40-2, the same date Plaintiff filed a Request for default judgment as to Kempf, (Dkt. No. 37) and a separate Motion seeking service costs and other relief (Dkt. No. 38). On May 10, 2010, Kempf filed a Cross-Motion to vacate Plaintiff's request for entry of default against him and for leave to join in the Hodgson Russ Defendants' Motion to dismiss. Dkt. No. 40.


Before reviewing the merit of Defendants' Motions to dismiss, the Court will first address the issues surrounding Defendant Kempf. Specifically, the Court will address whether default judgment should lie against Kempf for his failure to respond to Plaintiff's Complaint and Amended Complaint, or whether the Court should grant leave for Kempf to join the Hodgson Russ Defendants' Motion to dismiss.

A. Default Judgment and Proper Service

Federal Rule of Civil Procedure 55(a) provides, "[w]hen 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). The Court may "set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b)." FED. R. CIV. P. 55(c). Plaintiff, pursuant to Rule 55, seeks default judgment against Defendant Kempf as a result of his failure to timely respond to her pleadings.

Generally, defendants must serve a responsive pleading "within 21 days after being served with the summons and complaint." FED. R. CIV. P. 12(a)(1)(A)(i). Unless otherwise ordered by a court, plaintiff must "serve[] on every party . . . a pleading filed after the original complaint." FED. R. CIV. P. 5(1)(B). However, "[n]o service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4." FED. R. CIV. P. 5(2).

Federal Rule of Civil Procedure 4 requires that a plaintiff serve a summons and copy of the complaint, generally within 120 days of filing that complaint. FED. R. CIV. P. 4(a), (c), (m).

Generally, for plaintiffs located within a judicial district of the United States, service is proper if it: "follow[s] state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." FED. R. CIV. P. 4(e)(1). New York law allows for personal service; delivery of the summons and complaint to a person of suitable age and discretion at the defendant's "actual place of business," and then mailing copies to the defendant at his last known residence or at his actual place of business; or service upon an authorized agent. N.Y. C.P.L.R. § 308.*fn8 Alternatively, under the Federal Rules, proper service may be accomplished by:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

FED. R. CIV. P. 4(e)(2)

In the instant action, Plaintiff filed her initial Complaint (Dkt. No. 1), naming Kempf as a Defendant, on August 26, 2009 and allegedly personally delivered him a copy on December 16, 2009. See Dkt. No. 37 ¶ 6. Plaintiff served Kempf with a copy of her Amended Complaint via First Class mail to his home address on December 24, 2009. Id. ¶ 10. Kempf filed no response until May 5, 2010, when he moved (Dkt. No. 40) to vacate Plaintiff's request for default judgment against him (Dkt. No. 37). For the purpose of his opposition to Plaintiff's request for default judgment, Kempf does not deny receiving service of the original Complaint. Mem. in Opp'n to Default Judgment (Dkt. No. 40-2) at 3. Kempf claims however, that such service "was without legal significance, because the complaint did not contain any cognizable claim against him . . . . [Furthermore, h]ad Kempf had any obligation to respond . . . it was eliminated by the filing of an Amended Complaint which contains certain claims against him." Id.

Kempf's latter argument is correct; Plaintiff's Complaint alleges only that Kempf was involved in a "criminal nexus" with state officials through which she was divested of her Sixth Amendment right to representation in the ...

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