7:20-cv-09346
S.D.N.Y.Jul 12, 2022Background
- Plaintiff Dr. Paul Saladino alleges Defendants Frank Tufano and Frankie’s Free‑Range Meat, LLC published multiple defamatory videos, created the domain PaulSaladino.com redirecting to graphic content, and committed unfair competition under federal and New York law.
- Complaint filed Nov. 7, 2020; First Amended Complaint (FAC) filed Feb. 16, 2021 adding Frankie’s; affidavits of service show both defendants served March 9, 2021 with answers due March 30, 2021.
- Defendants did not answer the FAC; the Clerk entered certificates of default on April 1 and April 7, 2021.
- Defendants moved to vacate the entries of default (Feb. 10, 2022), arguing improper service and asserting truth/opinion defenses to defamation claims.
- The Court applied the Rule 55(c) standard (less rigorous than Rule 60(b)) evaluating willfulness, prejudice, and meritorious defenses, while acknowledging the strong policy favoring resolution on the merits.
- The Court held service on Tufano was proper via counsel through ECF and service on Frankie’s was proper via the New York Secretary of State; it found the defaults willful and no meritorious defenses shown, and denied the motion to vacate.
Issues
| Issue | Saladino's Argument | Tufano/Frankie’s Argument | Held |
|---|---|---|---|
| Proper service on Tufano | FAC served on Tufano’s counsel via ECF (and nail‑and‑mail served) | Nail‑and‑mail at parents’ house ineffective; Tufano lacked actual notice | Service via counsel by ECF was proper; counsel received NEF so Tufano was properly served |
| Proper service on Frankie’s | Summons and FAC were delivered to NY Secretary of State per CPLR/Rule 4 | Contended managing member didn’t receive actual notice via Dept. of State | Service on Secretary of State was proper and complete under NY law |
| Whether defaults were willful and should be vacated | Defaults were willful and defendants have no meritorious defenses; entry should stand | Defaults not willful; defendants assert truth/opinion defenses to defamation and lack of service | Defaults were willful; defendants offered only conclusory defenses and failed to show a meritorious defense; motion denied |
| Prejudice from vacating default | Plaintiff would be prejudiced by delay and loss of evidence | Defendants argued vacatur appropriate despite delay | Court did not decide prejudice because willfulness and lack of meritorious defense were dispositive |
Key Cases Cited
- Meehan v. Snow, 652 F.2d 274 (2d Cir. 1981) (establishes the three‑factor test for vacating an entry of default).
- Enron Oil Corp. v. Diakuhara, 10 F.3d 90 (2d Cir. 1993) (defaults disfavored; meritorious defense requires more than conclusory denials).
- Bricklayers & Allied Craftworkers Local 2 v. Moulton Masonry & Const., LLC, 779 F.3d 182 (2d Cir. 2015) (willfulness requires more than negligence; deliberate default suffices).
- Traguth v. Zuck, 710 F.2d 90 (2d Cir. 1983) (courts should favor resolving disputes on the merits).
- Davis v. Musler, 713 F.2d 907 (2d Cir. 1983) (prejudice analysis focuses on loss of evidence, discovery difficulties, and opportunities for fraud).
- Masterson v. NY Fusion Merch., LLC, 300 F.R.D. 201 (S.D.N.Y. 2014) (in ECF cases, transmission of the NEF to counsel constitutes service of an amended complaint).