    14-2207
    Corsini v. Condé Nast


                                  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 ASUMMARY ORDER@). A PARTY CITING TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square,
    in the City of New York, on the 12th day of May, two thousand fifteen.

    PRESENT:
                            PIERRE N. LEVAL,
                            GERARD E. LYNCH,
                            RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.

    _____________________________________

    Gerard Corsini,

                                 Plaintiff-Counter-Defendant - Appellant,
                            v.                                                14-2207

    Condé Nast, et al.,

                                 Defendants-Appellees,

    Belkin Burden Wenig & Goldman, LLP, Aaron Shmulewitz,

                                 Defendants-Counter-Claimants -
                                 Cross-Claimants - Appellees,

    Michael R. Bloomberg, et al.,

                                 Defendants - Cross-Defendants - Appellees,
John Does 1-20, et al.,

                 Defendants.
_____________________________________

FOR PLAINTIFF-APPELLANT:                  GERARD A. CORSINI, New York, NY.

FOR DEFENDANTS-APPELLEES:                 David R. Brand, Belkin Burden Wenig &
                                          Goldman, LLP, New York, NY, for Condé
                                          Nast, Anna Wintour, Belking Burden Wenig &
                                          Goldman, LLP, and Aaron Shmulewitz; Tahirih
                                          Mehrie Sadrieh, Assistant Corporation Counsel,
                                          for Zachary W. Carter, Corporation Counsel of
                                          the City of New York, New York, NY, for
                                          municipal defendants; Christina Frances Ante,
                                          Esq., Assistant District Attorney, for Cyrus R.
                                          Vance, Jr., District Attorney, New York
                                          County, New York, NY; Eric M. Arnone,
                                          Galluzzo & Johnson, LLP, New York, NY, for
                                          Elizabeth Morgan, Jonathan Cary, and Daniel
                                          J. McKay.
       Appeal from a judgment of the United States District Court for the Southern
District of New York (Laura Taylor Swain, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED in part and the
appeal is DISMISSED in part.
       Plaintiff-appellant Gerard Corsini, an attorney proceeding pro se, appeals the
district court’s judgment dismissing his complaint pursuant to 42 U.S.C. §§ 1983 and
1985. We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal.
       We review de novo a district court’s decision to dismiss a complaint pursuant to
Rule 12(b)(6), see Patane v. Clark, 508 F.3d 106, 111 (2d Cir. 2007), or grant judgment
on the pleadings pursuant to Rule 12(c), see Kirkendall v. Halliburton, Inc., 707 F.3d 173,

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178 (2d Cir. 2013). In both cases, we accept the factual allegations in the complaint as
true and draw all reasonable inferences in the plaintiff’s favor. See Kirkendall, 707 F.3d
at 178; Patane, 508 F.3d at 111. To survive either motion, the 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 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Kirkendall, 707 F.3d at 178-79. 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.” Iqbal, 556 U.S. at 678. Although all
allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to
legal conclusions.” Id. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice,” and pleadings that “are no
more than conclusions . . . are not entitled to the assumption of truth.” Id. at 678-79.
       Upon review, we conclude that the district court correctly dismissed Corsini’s
claims that he was falsely arrested and maliciously prosecuted, and that his prosecution
violated the First Amendment. Except as noted below, we affirm for substantially the
reasons stated by the district court in its thorough May 15, 2014 decision.
I.     Waiver
       As an initial matter, we find that Corsini has waived his claims of unconstitutional
search and seizure and deliberate denial of medical treatment while he was detained
because his appellate brief contains no “effort at developed argumentation” with respect
to those claims. Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001) (noting settled
appellate rule that issues addressed only in a perfunctory manner are waived). Corsini
has also waived his claim of excessive force during handcuffing because he does not set
forth any argument with respect to that claim until his reply brief. See United States v.
Yousef, 327 F.3d 56, 115 (2d Cir. 2003) (“We will not consider an argument raised for the
first time in a reply brief.”). We decline the invitation, advanced by some defendants, to

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disregard Corsini’s brief for failure to comply with Federal Rule of Appellate Procedure
28 and Local Rule 28.1. But we will note that passing mentions of issues in a rambling,
stream-of-consciousness jurisdictional statement and statement of the case is no substitute
for “stat[ing] reasoned arguments based on cited authority setting out grounds for
reversal.” Ernst Haas Stuido, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999).
II.    Conspiracy Claims
       The district court’s dismissal of the conspiracy claims was appropriate.
“‘[C]omplaints containing only conclusory, vague, or general allegations that the
defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional
rights are properly dismissed; diffuse and expansive allegations are insufficient, unless
amplified by specific instances of misconduct.’” Ciambriello v. County of Nassau, 292
F.3d 307, 325 (2d Cir. 2002), quoting Dwares v. City of New York, 985 F.2d 94, 100 (2d
Cir. 1993). Apart from reciting conclusorily that the defendants conspired against him,
Corsini did not provide any details from which it could be rationally inferred that any
conspiracy existed. Accordingly, the district court properly dismissed his conclusory
claims of conspiracy. See Ciambriello, 292 F.3d at 325.
III.   Res Judicata
       The district court was correct that Corsini’s claims against defendants Morgan,
Cary, McKay, and the law firm of Belkin Burden Wenig & Goldman, LLP, are barred by
the doctrine of res judicata, because they are materially identical to the claims he alleged
against those defendants in a state court proceeding. Corsini’s argument that the adverse
state court decision does not preclude his federal claims because an appeal was pending
misapprehends the application of res judicata under New York law. “The rule in New
York, unlike that in other jurisdictions, is that the mere pendency of an appeal does not
prevent the use of the challenged judgment as the basis of collaterally estopping a party to
that judgment in a second proceeding.” In the Matter of Amica Mut. Ins. Co., 445

                                              4
N.Y.S.2d 820, 822 (2d Dep’t 1981); accord, Depasquale v. Allstate Ins. Co., 50 F. App’x
475, 475-76 (2d Cir. 2002) (unpublished). In any event, the New York Appellate
Division has now affirmed the dismissal of his state case. Corsini v. Morgan, 999
N.Y.S.2d 380 (1st Dep’t 2014). Accordingly, Corsini’s attempt to relitigate these claims
in federal court is barred.
IV.    Rule 11 Sanctions
       Corsini argues that the district court abused its discretion in granting the Belkin
defendants’ motion for Rule 11 sanctions, because that motion was filed with the court
before the expiration of the “safe harbor” period of Rule 11(c)(2). But because the
district court did not fix the amount of sanctions in its order granting the motion (and
apparently has never done so), that order is not final as to the sanctions within the
meaning of 28 U.S.C. § 1291. See Pannonia Farms, Inc. v. USA Cable, 426 F.3d 650,
652-53 (2d Cir. 2005). We therefore dismiss the portion of Corsini’s appeal related to
Rule 11 sanctions for lack of appellate jurisdiction.
V.     Leave to Amend
       Finally, Corsini asserts that he should have been granted leave to amend his
complaint, arguing that the district court ordinarily grants plaintiffs permission to file an
amended complaint, and that it is “rare that such leave should be denied . . . especially
when there has been no prior amendment.” Appellant’s Br. 54. But the district court did
allow Corsini to amend his complaint; he filed a first amended complaint and never
formally moved to amend that complaint. Instead, he merely raised the prospect of a
second amendment in his opposition to the motion to dismiss. The district court did not
abuse its discretion by not addressing this vague allusion to a possible second
amendment. “It is within the court’s discretion to deny leave to amend implicitly by not
addressing the request when leave is requested informally in a brief filed in opposition to
a motion to dismiss.” In re Tamoxifen Citrate Antitrust Litig, 466 F.3d 187, 220 (2d Cir.

                                              5
2006), abrogated on other grounds by FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013); see
also McLaughlin v. Anderson, 962 F.2d 187, 195 (2d Cir. 1992).
       We have considered all of Corsini’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court granting the
defendants’ motions to dismiss, and DISMISS that portion of the appeal challenging the
sanctions order for want of jurisdiction.

                                            FOR THE COURT:
                                            Catherine O=Hagan Wolfe, Clerk




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