Saladino, MD v. Frank Tufano

Background

Paul Saladino sued Frank Tufano and Frankie’s Free-Range Meat, LLC, asserting claims under federal trademark and cybersquatting law, New York General Business Law, and defamation. The amended complaint alleged that the defendants published videos and other online material containing false statements about Saladino and his business, and that they registered the domain name PaulSaladino.com and directed it to material involving Saladino.

The defendants were served with the amended complaint, but they did not answer by the deadline. The clerk entered certificates of default against both defendants. No default judgment had been entered. The defendants later moved under Rule 55(c) of the Federal Rules of Civil Procedure to vacate, or cancel, the entries of default.

Legal standard

The court applied Rule 55(c), which allows an entry of default to be set aside for “good cause.” The court considered whether the default was willful, whether the defendants had presented a meritorious defense, and whether vacating the default would prejudice Saladino. Because no default judgment had been entered, the court applied the less demanding standard for setting aside an entry of default rather than a default judgment.

Court’s analysis

The court found that Tufano was properly served through his attorney. Under the electronic filing rules, service was complete when the court’s electronic filing notice was sent to Tufano’s attorney, Jeffrey Davis. The court noted that Davis remained Tufano’s attorney when the amended complaint was filed, even though Davis had filed a motion to withdraw that was not granted until later.

The court separately found that Frankie’s was properly served through the New York Secretary of State. It therefore rejected the defendants’ argument that they had not been properly served. Because both defendants were properly served and failed to respond without a satisfactory explanation, the court found that their defaults were willful.

The court also found that the defendants had not shown a meritorious defense. The defendants asserted that Tufano’s statements were true or were genuinely held opinions, but they supplied no underlying facts or evidence supporting those assertions. The court also noted that the amended complaint alleged statements and online material beyond plagiarism accusations, including descriptions of Saladino as dishonest, a thief, a drug user, and unqualified, as well as sexually graphic and homophobic images. The defendants did not provide defenses to Saladino’s other claims under federal and New York law.

Because the court found both a willful default and no meritorious defense, it did not need to decide whether Saladino would be prejudiced by vacating the defaults.

Disposition

The court held that the defendants failed to show good cause under Rule 55(c) to vacate the entries of default. The court denied the defendants’ motion to vacate the entry of default. It directed Saladino to file a non-emergent proposed order to show cause and directed the clerk to terminate the motion.