MORENO et al v. TRINGALI

Filing 26

OPINION. Signed by Chief Judge Jerome B. Simandle on 6/30/2015. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MICHAEL MORENO and MEDPRO, INC.

HONORABLE JEROME B. SIMANDLE

Plaintiffs,
Civil No. 14-4002 (JBS/KMW)

v.
RORY E. TRINGALI,
Defendant.

OPINION

APPEARANCES:
Warren S. Wolf, Esq.
GOLDBERG & WOLF, LLC
1949 Berlin Road, Ste 201
Cherry Hill, NJ 08003
Attorney for Plaintiffs
Robert A. Vort, Esq.
Suite 101
2 University Plaza
Hackensack, NJ 07601
Attorney for Defendant
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This is an action by Plaintiffs Michael Moreno and Medpro

Inc. against a business competitor, Defendant Rory Tringali, for
violating a non-disparagement and non-defamation provision of a
settlement agreement arising out of prior litigation between the
parties, and otherwise defaming, disparaging, and harassing
Plaintiffs. The case was removed to this Court by Defendant in
June 2014, and, after Defendant Tringali failed to answer or

otherwise present a defense, the Clerk entered default.
Plaintiffs filed a motion for an Order to Show Cause why a
preliminary injunction should not issue, and the Court granted
Plaintiffs’ motion and issued a preliminary injunction on July
24, 2014. Among other things, the Court ordered Defendant to
cease and desist from disparaging and defaming Plaintiffs on an
internet website, consistent with the “Non Disparagement and
Defamation” provision of the parties’ settlement agreement from
2012.
Defendant has now moved to vacate default and to file an
Answer and Counterclaim adding additional parties to the action.
[Docket Item 12.] He also moves for an Order to Show Cause why a
preliminary injunction should not issue against Plaintiffs,
alleging that Plaintiffs violated the same non-disparagement and
non-defamation provision by directing a former business partner
to make two negative web postings about Defendant online.
[Docket Item 21]. For the reasons below, the Court will deny
Defendant’s motion to set aside default and dismiss Defendant’s
motion for a preliminary injunction as moot.
II.

BACKGROUND

A. Procedural History
The facts of this case have been set forth in an earlier
Opinion by this Court and need not be repeated at length here.
2

(July 24, 2014 Findings of Fact and Conclusions of Law [Docket
Item 9].)
Plaintiffs Michael Moreno and Medpro Inc. (“Medpro”) buy
and sell pre-owned cosmetic lasers. They filed a complaint
against Defendant Rory E. Tringali, a business competitor,
alleging, among other things, that Defendant was disparaging,
defaming, and harassing Plaintiffs, and had breached the “Non
Disparagement and Defamation” provision of an existing
settlement agreement between them, which the parties entered
into on September 20, 2012 after litigation. (Ex. A to Compl.
[Docket Item 1-1] at 7-8.) Specifically, Plaintiffs alleged that
Defendant Tringali put up a website (Ex. C to Compl. [Docket
Item 1-1]) “for the sole purpose of harassing, intimidating and
destroying the professional reputations of the Plaintiffs.”
(Compl. [Docket Item 1] ¶¶ 49.) The website allegedly falsely
implies that Plaintiffs are partners with, or involved in frauds
and scams with, Moreno’s former business partner, Justin
Williams. Plaintiffs also alleged that Tringali contacted at
least four of Plaintiffs’ customers to try to dissuade them from
doing business with Plaintiffs. Finally, Plaintiffs complained
that Tringali continued to harass Moreno via emails and texts.
(Compl. ¶¶ 55-59; 62-64.)1

1

In addition to a breach of contract claim, the Complaint
3

Defendant Tringali, through his attorney Lawrence A. Leven,
removed the action to this Court on June 17, 2014. Shortly
thereafter, on June 25th, Plaintiffs filed a motion for an Order
to Show Cause why a preliminary injunction should not issue. The
Court entered an Order to Show Cause on June 26, 2014, which was
duly served on Mr. Leven as Defendant’s counsel of record
[Docket Item 5], and Defendant’s response was due July 11, 2014,
for a hearing on July 23, 2014. Defendant filed no opposition.
Defendant also did not respond to the Complaint, and on July 21,
2014, the Clerk entered default against Defendant for failure to
answer or otherwise respond.
Defendant Tringali and his attorney, Mr. Leven, did not
appear at the July 23rd hearing, at which the Court received
testimony from Plaintiff Moreno that the disparaging comments
and statements about him on Defendant’s website and in email
correspondence were false. On July 24, 2014, the Court granted
Plaintiffs’ motion for a preliminary injunction. [Docket Items 9
& 10.] Among other things, the Court ordered Defendant Tringali
to (1) remove all references to Plaintiffs on Defendant’s

contains the following causes of action: (1) defamation; (2)
defamation per se; (3); tortious interference with prospective
business relations; (4) intentional infliction of emotional
distress; (5) civil assault; (6) intrusion of privacy/seclusion;
(7) intrusion of privacy/false light; (8) common law unfair
competition; and (9) injunctive relief.
4

website and any other website under his control; (2) delete any
posts he created about Plaintiffs on any websites, blogs, chat
rooms, and reviews which cast Plaintiffs in a negative light;
(3) cease and desist from disparaging and/or defaming Plaintiffs
and/or casting them in a negative light. (Preliminary Injunction
Order [Docket Item 10].)2
B. Defendant’s Motion to Vacate Default
After the Court’s preliminary injunction findings and order
were entered and electronically served upon attorney Leven, 73
days elapsed with no response from Leven or Defendant Tringali.
Finally, on October 6, 2014, Tringali, represented by a new
attorney, Robert A. Vort, Esq., moved to vacate the default and
for leave to file an answer and counterclaim.3 [Docket Item 12.]

2

Additionally, the Court ordered Defendant to (1) cease and
desist from contacting any of Plaintiffs’ customers; (2) cease
and desist from contacting Plaintiffs other than through
counsel; (3) stay outside a 500-yard radius of Plaintiff’s home
in New Jersey; (4) refrain from defaming or disparaging
Plaintiffs within the business community; (5) refrain from
trying to obtain, distribute or publicize any private and
personal information about Plaintiff Moreno or Moreno’s family.
[Docket Item 10.]
3 Although Tringali’s certification attached to his motion to
vacate default is styled as a “Certification of Defendant in
Support of Motion to Vacate Preliminary Injunction and for Leave
to File Answer,” Defendant’s Proposed Order seeks only to vacate
the default and permit the filing of an answer and counterclaim.
Defendant’s brief is only in support of a motion to vacate
default, and the Tringali Certification makes clear that he is
not asking the Court to modify or vacate the preliminary
injunction. (Rory Tringali Cert. in Support of Mot. to Vacate
Prelim. Inj. and for Leave to File Answer (“Tringali Cert.”)
5

In support of his motion, Defendant attaches a certification by
Lawrence A. Leven, Defendant’s previous attorney. Leven states
that when he took on Defendant’s case, he “agreed to represent
Mr. Tringali in this action only until he obtained substitute
counsel whose office was closer to Camden,” and that he did not
know until July 21, 2014, the date that default was entered,
that Tringali had not found new counsel. (Lawrence A. Leven
Cert. in Support of Mot. to Vacate Default (“Leven Cert.”)
[Docket Item 12-2] ¶ 3.) Thus, two days before the July 23rd
preliminary injunction hearing, Leven knew that default had been
entered and that his client’s case was in trouble, but he did
nothing. Leven asserts that at the time, he was “distracted” by
a trial in Essex County and by the funeral of a friend and was
“in no position to respond” to the request to enter default.
(Id.) He also asserts that the failure to respond to Plaintiffs’
motion for an order to show cause and to appear at the show
cause hearing was “entirely my fault because of my equivocal
conduct in not being more emphatic with Mr. Tringali.” (Id. ¶
6.) He asserts that he has referred the case to Robert A. Vort,
“who will be filing a substitution of counsel simultaneously

[Docket Item 12-1] ¶ 3 (“I am not asking the Court now to modify
vacate[sic] the injunction it previously issued, either in whole
or in part. I ask only for the opportunity to defend this case
on the merits and to file claims against the plaintiffs and
others with whom they transact business.”))
6

with a motion to modify the default.” (Id.) Leven’s
certification is dated September 17, 2014. Neither Leven nor
Vort explains why Leven did not apprise the Court in July or
August that he was not acting as Tringali’s attorney any more,
such as by seeking leave to withdraw. Moreover, there is no
indication that either Leven or Vort extended the courtesy
toward Plaintiff and Plaintiff’s counsel that professionalism
demands of a lawyer.
Defendant Tringali also filed a certification. Defendant
asserts that he knew of Plaintiffs’ application for a
preliminary injunction and believed that Leven was preparing an
opposition to it. He asserts, “Until today [September , 2014,
but day is blank] when I read his certification, I did not
understand that he was expecting me to retain new counsel for
this action.” (Tringali Cert. in Supp. of Mot. to Vacate [Docket
Item 12-1] ¶ 3.)
Defendant argues that Leven’s “failure to do anything in
defense of the application for preliminary injunction” or to
answer the Complaint demonstrates excusable neglect, because
Tringali was entitled to rely on his attorney to abide by the
Court’s deadlines. (Mot. to Vacate [Docket Item 12-4], at 2-3.)
Since Tringali says he was aware of the preliminary injunction
motion and the entry of the preliminary injunction order against
7

him, he must also have been aware that his attorney had prepared
no opposition and that the July 23rd hearing had gone forward
without any defense presence, despite Leven’s removal of the
case to this federal court. Thus, Tringali’s statement that he
didn’t realize that Leven was not defending him in the matter
until September 17th cannot be true.
Plaintiffs filed a timely opposition to Defendant’s motion,
arguing that Defendant’s conduct in state court prior to removal
demonstrates that the failure to answer in this Court was
willful. [Docket Item 15.]4 In a certification by Plaintiffs’
attorney, Warren S. Wolf, Wolf asserts that shortly after the
Complaint and motion for preliminary injunction was initially
filed in state court, Plaintiffs attempted to serve the
Complaint upon Mr. Leven, who had represented Defendant in
previous disputes involving the same parties. (Cert. of Warren
S. Wolf in Opp. to Mot. to Vacate (“Wolf Cert.”) [Docket Item
15-3] ¶ 6.) Mr. Leven then wrote a letter to the court stating
that he was Defendant’s former attorney and did not represent
Defendant in the current matter. (See Wolf Cert. ¶ 7; Leven
Letter, Ex. B to Wolf Cert. [Docket Item 15-3].) Mr. Wolf
asserts that this was untrue, as the Appellate Division had

4

Along with the opposition, Plaintiffs filed a cross motion,
which they later withdrew, to hold Tringali in contempt for
violating the preliminary injunction. [Docket Items 16, 20.]
8

informed him that Mr. Leven was Defendant’s current counsel on
the appeal of a criminal case. (Wolf Cert. ¶ 8.)
The Superior Court then ordered Plaintiffs to re-serve the
complaint on Defendant Tringali, which Plaintiffs did by
personal service on May 27, 2014. (Id. ¶ 10; Aff. of Service,
Ex. D to Wolf Cert. [Docket Item 15-3].) Wolf states that as a
result of Defendant’s mischaracterization, the state court
rescheduled the hearing on Plaintiffs’ preliminary injunction
from May 23, 2014 to June 20, 2014. Three days before the
hearing, on June 17th, Defendant, acting through Mr. Leven,
removed the case to this Court. (Wolf Cert. ¶ 11.) This
demonstrates that Leven indeed represented Tringali; no one now
suggests that he didn’t.5 Leven’s statement to the Superior
Court, that he did not represent Tringali, upon which the
Superior Court relied in adjourning the first preliminary
injunction hearing for a month, was not true.
Plaintiffs argue that Defendant’s failure to respond in
this case, when viewed in light of Defendant’s actions in state
court, showed a “strategic attempt to delay the entry of the

5

It is not surprising that Leven represented Tringali in this
case and filed the removal petition on his behalf, since Leven
also represents Tringali in connection with defending his
related criminal charges in State v. Tringali, Ind. No. 08-030037-S (Crim. Div., Burlington County, N.J.), which was recently
dismissed for lack of territorial jurisdiction on April 22,
2015, as discussed below. See Part III.A, infra.
9

preliminary injunction.” (Opp. to Mot. to Vacate [Docket Item
15-2], at 2.) They also argue that default should not be set
aside because Defendant has no meritorious defense to the action
since he admitted to most of the conduct alleged by Plaintiffs.
(Id. at 6-8.) They finally argue that they were prejudiced by
Defendant’s delay tactics because the show cause hearing in
state court scheduled for May 23rd had to be rescheduled for
June 20th, and Defendant was allowed to keep his website active
for an additional 28 days. (Id. at 10.)
C. Defendant’s Motion for a Preliminary Injunction
Before the Court could rule on Defendant’s motion to
vacate, Tringali moved for a preliminary injunction [Docket Item
21], claiming that Plaintiffs violated the “Non Disparagement
and Defamation” provision by making two disparaging web postings
about him on the website www.complaintsboard.com.
For the sake of completeness, and to assess the strength of
Defendant’s alleged defense, which is a factor in determining
Defendant’s motion to set aside the default, the Court will
examine the factual allegations in Defendant’s proposed motion
for a preliminary injunction. The first posting is signed by
Justin Williams, whom Plaintiffs allege is a former business
partner, and is titled “Rory Tringali Fabricated Slander.” (Ex.
A to Mot. for Prelim. Inj. [Docket Item 21-1].) The post
10

purports to describe Williams’ past business relationship with
Defendant Tringali and lists a number of alleged wrongs that
Tringali committed against Williams when they were business
partners. For example, according to Tringali, the posting
alleges that Tringali “owned 1/3 of a company with me & took
nearly $400,000 the first 6 mos. while I received less than
$15,000.” (Id.) Williams also complains that Tringali “used the
[business] account with reckless disregard,” and that he “is
just irresponsible & abused me to get what he wanted as my life
had no meaning to him other than the money I could provide.”
(Id.) Alluding to when Tringali allegedly hacked Medpro’s
website, the Williams posting also allegedly notes that Tringali
“launched a massive SPAM attack on a competitors website,” and
that “[e]ach time the competitor re built their sites [Tringali]
launched another SPAM attack, causing hundreds of thousands of
innocent people problems & the competitor hundreds of thousands
in damages.” Finally, Tringali asserts that Williams claims that
Tringali ‘created dozens of alias’ to fabricate slander” about
Williams on the internet, stalked Williams for over a year, and
caused him to lose the lease on his home. (Id.) The post
concludes,
I challenge Rory to an accounting & to take
accountability for the fabricated slander. I am even
willing to forgive him & resolve our differences but I
will not take the illegal attacks any longer. . . . My
11

goal was to end the chaos, bring order to the business,
& show Rory how reckless he was living, in hopes he would
start working with me, rather than against me. It was
essentially an intervention of sorts & Rory decided to
go on the attack vs. listening to what his partners had
to say. It is time for it to end.
(Id.) There is no specific mention of Moreno or Medpro in the
posting.
The second post, entitled, “Rory Tringali Cyber Stalking &
Fabricated Slander,” also purports to be written by Justin
Williams and describes Defendant’s conduct towards Williams and
Medpro. The author describes Tringali’s role in orchestrating “a
series of cyber attacks against Medpro websites,” and describes
how Medpro was damaged by Tringali’s actions. He states:
. . . Rory posts fabricated complaints, using alias’, to
cause competitors harm. Rory has done this for years,
causing untold damage. . . . Rory stalks Michael Moreno,
Justin Williams, & families, doling out intimidation,
threats, & fabricating slander. . . . Rory Tringali owns,
cosmeticlaserfraud.com, a website used as a collection
point, for the complaints he fabricates. Posing as an
“Industry Activist”, Rory is nothing more than a Cyber
Bully using the internet to terrorize his victims.
(Ex. B to Mot. for Prelim. Inj. [Docket Item 21-1].) The author
then states, “My name is Justin Williams, & I have been
terrorized by Rory [Tringali] for years.” He goes on to describe
Tringali’s actions against him, noting, among other things, that
Trinagli “was a 1/3 partner and spent $400,000 refusing to
account for his spending,” that Tringali “obsessively stalks
me,” and that Tringali “took customers money & fabricated
12

complaints instigating them to come after me, posting as a
victim himself.” The post concludes with two newspaper articles
from the Burlington County Times and InformationWeek, which
reported on Tringali’s indictment in New Jersey state court in
2008 for disrupting the website of Medpro. (Id.)
Defendant seeks a preliminary injunction directing
Plaintiffs to remove all references to Tringali on websites and
other online forums, and to cease and desist making disparaging
or defamatory comments about Tringali or casting Tringali in a
negative light, “both directly or indirectly through their agent
or co-conspirator, Justin Mackintosh Williams.” (Id. ¶ 7.) In
two certifications before the Court, Tringali states that he
“believe[s] that Michael Moreno is conspiring with Williams to
post these comments about me,” and that the person who posted
the web coments was “acting at the request or direction of
Michael Moreno.” (Cert. of Rory Tringali, Mot. for Prelim. Inj.
(“Tringali Cert. 1”) [Docket Item 21-1] ¶ 4; Cert. of Rory
Tringali, Reply in Support of Mot. for Prelim. Inj. (“Tringali
Cert. 2”) [Docket Item 23-1] ¶ 2.) Defendant asserts that
because Moreno is the “sole owner of MedPro” and the posting
“refers to attacks on MedPro,” “Moreno is the only person with
motive sufficient to attack me; The hand may be the hand of
Williams but the voice is that of Moreno.” (Tringali Cert. 1.)
13

According to a printout which Defendant attaches as an exhibit,
both postings were made by a user from Austin, Texas writing
under the username “Everitas,” (Posting Summary, Ex. C to Mot.
for Prelim. Inj. [Docket Item 21-1]), which Defendant asserts is
the location of Williams’ home.
Defendant notes that Williams and Moreno have a history of
working together. For support, they attach several exhibits
purporting to show that the two sold laser equipment to at least
one customer in 2012. (Exs. F, G, H, I to Mot. for Prelim. Inj.)
Defendant also attaches emails between Plaintiffs’ attorney,
Warren Wolf, and Moreno and Williams from 2008 and 2010
suggesting that Williams and Moreno were partners. (Tringali
Cert. 2; Ex. J to Mot. for Prelim. Inj.)
Plaintiffs deny that they had anything to do with the
postings and oppose the preliminary injunction. (Opp. to Mot.
for Prelim. Inj. [Docket Item 22], at 3.) Moreno asserts that he
did not write or post the articles, nor did he direct anyone to
write the articles. (Michael Moreno Cert. in Opp. to Def. Mot.
for Prelim. Inj. (“Moreno Cert.”) [Docket Item 22-1] ¶¶ 4-5.) He
states that Justin Williams is not an employee or agent of
Medpro and that neither he nor anyone else at Medpro has any
authority or control over Williams. (Id. ¶¶ 7-8.) He asserts
that he did not see the postings until after his attorney
14

forwarded them to him. (Id. ¶ 6.)
Plaintiffs argue that Williams may have had motive to
attack Tringali because Williams and Tringali were former
business partners and have been entangled in ongoing business
disputes for the past ten years. (Opp. to Mot. for Prelim. Inj.,
at 4.) Plaintiffs note that Tringali and Williams had previously
litigated a business dispute in the Southern District of
Florida. (See Complaint, Ex. A to Wolf Certification [Docket
Item 22-2].) They assert that Williams had previously sued
Tringali for unfair competition in the District of New Jersey in
a case filed in 2008. Finally, they note that Tringali’s
Proposed Counterclaim includes allegations that Williams had
created laser sale websites that mimicked the content of
Tringali’s websites and diverted customers to Williams’s site.
(Opp. to Mot. for Prelim. Inj., at 4; Proposed Counterclaim.)
Plaintiffs request sanctions against Tringali for “his
intentionally false statements and for attempting to tarnish
Plaintiffs’ credibility with false statements.” (Id. 4-5.)
III. DISCUSSION
A. The Court will deny Defendant’s motion to aside default.
Fed. R. Civ. P. 55(c) provides that “[t]he court may set
aside an entry of default for good cause, and it may set aside a
default judgment under Rule 60(b).” The Third Circuit leaves the
15

decision to vacate the entry of default or a default judgment to
the “sound discretion of the [trial] court.” Tozer v. Charles A.
Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951). However,
“[the Third Circuit] has adopted a policy disfavoring default
judgments and encouraging decisions on the merits.” Harad v.
Aetna Cas. & Sur. Co., 839 F.2d 979, 982 (3d Cir. 1988).
In exercising its discretion to vacate entry of a default
or a default judgment, the Court must consider (1) whether
prejudice would accrue to the plaintiff if the motion were
granted; (2) whether the defendant has presented a meritorious
defense; and (3) whether the default was the result of the
defendant's culpable conduct. United States v. $ 55,518.05 in
U.S. Currency, 728 F.2d 192, 194–195 (3d Cir. 1984); Medunic v.
Lederer, 533 F.2d 891, 893 (3d Cir. 1976). Any doubt “should be
resolved in favor of the petition to set aside the judgment so
that cases may be decided on their merits.” Tozer, 189 F.2d at
245-46. Moreover, because the standard for setting aside default
under Rule 55(c) is more lenient than the standard for opening a
judgment under Rule 60(b), “(a)ny of the reasons sufficient to
justify the vacation of a default judgment under Rule 60(b)
normally will justify relief from a default entry and in various
situations a default entry may be set aside for reasons that
would not be enough to open a default judgment.” 10 C. Wright &
16

A. Miller, Federal Practice and Procedures 2696 at 334 (1973);
see also Feliciano v. Reliant Tooling Co., 691 F.2d 653, 656 (3d
Cir. 1982) (“Less substantial grounds may be adequate for
setting aside a default than would be required for opening a
judgment.”).
In this case, the balance of factors does not weigh in
favor of setting aside default. First, the Court finds that
Defendant’s conduct rises to the level of inexcusable neglect.
The standard for culpable conduct is the ‘willfulness’ or ‘bad
faith’ of a non-responding defendant, and “requires that as a
threshold matter more than mere negligence be demonstrated.”
Hritz v. Woma Corp., 732 F.2d 1178, 1182-83 (3d Cir. 1984); see also
Gross v. Stereo Component Syst., Inc., 700 F.2d 120, 124 (3d
Cir. 1983) (noting that in the context of opening default
judgment, “culpable conduct means actions taken willfully or in
bad faith.”); Feliciano v. Reliant Tooling Co., 691 F.2d 653,
657 (3d Cir. 1982) (stating same).
There is no question that Mr. Leven’s failure to defend
this case was more than merely negligent. Despite taking the
affirmative step to seek a resolution in this forum, Mr. Leven
failed to file an answer or otherwise respond to the Complaint
other than removing it to this Court, and ignored the
preliminary injunction Plaintiffs sought to be entered.
17

Defendant filed no opposition to Plaintiffs’ motion for an order
to show cause, and did not appear at the show cause hearing on
July 23, 2014. The Court entered a preliminary injunction on
July 24th and default was entered around the same time on July
21st, but Defendant did not act to vacate the default until
October 6th, two and a half months later. In short, Defendant
ignored his responsibilities in this case for nearly four
months.
Mr. Leven provides no adequate justification for his
tardiness. He admits that he saw the request to enter default
and his only explanation for failing to act was that he was
“distracted” by other matters and believed that Defendant had
obtained substitute counsel in the case. (Leven Cert. ¶ 3-5.)
That Mr. Leven was busy with other matters at the time is no
excuse. He could easily have sought an extension of time to
respond, which this Court could have addressed, but he did not
do so even once. In any event, Mr. Leven’s excuse of distraction
rings hollow, for surely he was still functioning as an attorney
throughout the entire four month period in which he was counsel
of record in this case. Nor is the Court inclined to believe Mr.
Leven’s bare assertion that he thought Defendant had found other
counsel to litigate the matter, when Mr. Leven provides no basis
for making this assumption. Nothing in Mr. Leven’s certification
18

suggests that he had arranged for substitution of new counsel in
June or July, or that Defendant had told him that he was
retaining a new attorney. On the contrary, Tringali asserts in
his affidavit that he believed all along that Mr. Leven would be
filing a response on his behalf, and that he “did not understand
that [Mr. Leven] was expecting me to retain new counsel for this
action.” (Tringali Cert. 1, ¶ 2.) Despite his assertion that he
believed new counsel had been obtained, Mr. Leven also admits
that he “knew that [he] was counsel of record” at the time his
response was due. (Leven Cert. ¶ 4.) He was therefore fully
aware of his obligations to the Court at the time default was
entered.
Mr. Leven’s certification also fails to explain why he
waited another two and a half months before seeking substitution
of new counsel or vacating default. There is no indication that
Defendant had trouble obtaining new counsel, nor does Mr. Leven
attempt to provide an explanation for why nothing was filed
before October 6, 2014. In fact, in his certification dated
September 17, 2014, Mr. Leven states that Defendant’s case had
already been referred to Robert A. Vort. Defendant then waited
another three weeks before filing the instant motion to vacate
the default and a notice of substitution of counsel, with no

19

explanation for the further delay.6
In light of Mr. Leven’s knowing and willful failure to
defend this action in a timely manner, and his failure to
provide any adequate explanation for failure to act, the Court
finds that Defendant’s actions rose to the level of “culpable
conduct.” See, e.g., In re Pandolfelli, No. 09-2068, 2012 WL
503668, at *5 (D.N.J. Feb. 15, 2012) (affirming bankruptcy
court’s finding that defendant’s failure to timely answer
constituted “culpable conduct” because defendant was properly
served with complaint and was fully apprised of his obligation
to answer and failure to do so was an “intentional decision not
to respond to a complaint” rather than “delay caused by
inadvertence”); Local Union No. 98 Intern. Bhd. of Elec. Workers
v. E. Elec. Corp. of N.J., 2009 WL 3075358, at *3 (D.N.J. Sept.
25, 2009) (finding that defendants’ failure to respond to a
complaint for one year constituted “blatant, or at a minimum,
reckless disregard of the rules” and amounted to “culpable
conduct”).

6

Mr. Leven’s culpable conduct extend beyond this forum; his
actions in state court prior to removal lends further support to
the conclusion that he acted willfully and in bad faith. He
initially refused to accept service of process of the complaint
in state court, falsely claiming that he did not represent
Defendant when in fact he was representing Defendant in a
pending criminal trial. That misrepresentation can only be seen
as an attempt to avoid court process and delay litigation.
20

The Court further finds that Defendant Tringali was aware
of, and ratified, his counsel’s default on his behalf. When Mr.
Leven did not oppose or attend the preliminary injunction
hearing, the Court required Plaintiffs’ counsel, Mr. Wolf, to
serve a copy of the preliminary injunction opinion and order
directly upon Defendant Tringali. See Preliminary Injunction
Order (filed July 24, 2014) at p. 2. The Court’s Findings of
Fact and Conclusions of Law spelled out, at length, the fact
that Leven had not opposed and that Defendant was in default,
see Findings (filed July 24, 2014) at 1 (indicating Leven “did
not attend”); at 9 (Defendant “did not file opposition and did
not appear at the hearing”); at 9 n.5 (“Defendant seems to have
ignored his responsibilities in this case. After removing the
case, Defendant has never filed an answer nor has defense
counsel sought leave to withdraw”); and finally at 10 n.6
(explaining why the Court was directing service of the
Preliminary Injunction by mail directly on Defendant Tringali,
recognizing that usually “service upon counsel of record
suffices” but requiring service as direct notice to Tringali “in
an abundance of caution” and “[d]ue to the seeming inaction of
Mr. Leven.”) Whatever Tringali says he knew or didn’t know from
Mr. Leven, it is clear that Tringali was informed, by the Court
through Mr. Wolf’s mailing on July 24, 2015, (See Wolf Cert. ¶
21

15), of the failure to defend. Tringali’s professed ignorance of
Leven’s non-feasance until September, 2014, when Tringali’s
certification states he became aware “that [Leven] was expecting
me to retain new counsel,” rings entirely false. Tringali well
knew he was defaulted for several months before seeking relief
in the present motion, and he is also responsible for the
default and for entry of the preliminary injunction. Tringali’s
acquiescence in not defending this suit was also culpable
conduct.
The Court notes that the second factor also weighs against
setting aside default, because Defendant appears to have no
meritorious defense to Plaintiffs’ claims. “The showing of a
meritorious defense is accomplished when ‘allegations of
defendant’s answer, if established on trial, would constitute a
complete defense to the action.’” United States v. $55,518.05 in
U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984) (citing Tozer v.
Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir.
1951)). Defendant admits to the majority of allegations in
Plaintiffs’ complaint that form the basis for Plaintiffs’
claims. (Proposed Answer and Counterclaim [Docket Item 12-3].)
He admits, for example, that he put up a website that attempts
to portray Plaintiffs as being involved with Williams in alleged
frauds and scams; communicated with Plaintiffs’ customers to try
22

to dissuade them from doing business with Plaintiffs and sent
one customer a link to where Plaintiff Moreno lives; disparaged
Plaintiffs to business associates and contacts in the industry;
and emailed Plaintiffs copies of Plaintiffs’ tax returns, which
Plaintiffs allege was harassment. (Id. ¶¶ 25-27, 29, 32, 34,
37.) These admissions would likely be sufficient to establish
claims for breach of contract, intrusion of privacy, and
harassment.
Defendant makes no argument in his brief for the existence
of a meritorious defense. However, Defendant claims in his
Proposed Answer that the action is “barred by the release given
by plaintiffs to Tringali.” (Proposed Answer and Counterclaim at
10, ¶ 70.) Defendant is presumably referring to the Settlement
Agreement the parties executed in 2012. Paragraph 6 of the
Settlement Agreement is the Mutual Release provision, which
releases each party from any past and present claims they may
have against the other, “whether arising out of contract, tort,
or otherwise, in law or equity.” (Settlement Agreement, Ex. A to
Complaint [Docket Item 1-1] ¶ 6.) Plaintiffs’ claims, however,
arise out of Defendant’s conduct after the execution of the
Settlement Agreement, conduct which is not covered by the Mutual
Release provision. The Mutual Release provision therefore would
provide no defense to Plaintiff’s suit.
23

Defendant also asserts that the action is barred by the
doctrine of unclean hands. (Proposed Answer and Counterclaim, at
10, ¶ 70.) “In simple parlance, [the doctrine of unclean hands]
merely gives expression to the equitable principle that a court
should not grant relief to one who is a wrongdoer with respect
to the subject matter in suit.” Borough of Princeton v. Bd. of
Chosen Freeholders of Mercer Cnty., 777 A.2d 19, 32 (N.J. 2001)
(citation omitted); see also Paramount Aviation Corp. v. Agusta,
178 F.3d 132, 147 n.12 (3d Cir. 1999) (doctrine of unclean hands
will deny equitable relief “when the party seeking relief is
guilty of fraud, unconscionable conduct, or bad faith directly
related to the matter at issue that injures the other party and
affects the balance of equities.”). Defendant provides no
explanation for the basis of this defense, but in the proposed
Counterclaim he asserts that Plaintiffs have themselves engaged
in fraud by making statements to customers and business
associates that Defendant was going to jail. (Proposed Answer
and Counterclaim, at 17.) Defendant was under indictment at the
time these statements were allegedly made. The indictment,
returned in 2008, charged Tringali with conspiracy to commit
computer related theft, N.J.S.A. 2C:20-25(b) & N.J.S.A. 2C:2-6,
and impersonation, N.J.S.A. 2C:21-17a(1) & N.J.S.A. 2C:2-6, in
connection with a spamming incident against MedPro, Inc. The
24

alleged co-conspirator, Matthew Wilner, entered a plea of guilty
in 2010. See State v. Rory Tringali, Ind. No. 08-03-0037-S
(Crim. Div., Burlington County, N.J.), opinion filed April 22,
2015, at pp. 1-2. The underlying criminal conduct was allegedly
directed against Moreno and MedPro in four spam attacks in 20062007. Id. at pp. 4-5. The Superior Court only recently granted
Tringali’s motion to dismiss the indictment, finding the Court
lacked territorial jurisdiction over Tringali’s misconduct,
which occurred in Florida. (Id. at 12-17, and Order filed April
22, 2015.) The Superior Court made no findings about the merits
of the indictment. If one assumes that Moreno made statements
that Tringali would be going to jail, that is not necessarily
far-fetched prediction for one who is under indictment and whose
alleged co-conspirator has entered a guilty plea. It is unlikely
that such statements at that time about Tringali’s business
practices would give rise to any claim for fraud or
disparagement, as they were based upon the evidence of the
victims, Moreno and MedPro, as found by the grand jury and
ratified in the co-defendant’s 2010 guilty plea. Accordingly,
this Court does not find it likely that the “unclean hands”
doctrine would apply to bar this suit. The strength of such a
defense is not sufficient to require relief from Defendant’s

25

default.7

7

In evaluating the unclean hands defense, the Court additionally
notes that Defendant is unlikely to succeed in his preliminary
injunction motion. Defendant asks this Court to order Moreno and
Medpro to take down two web postings written by an individual
with the online username “Everitas,” but the record indicates
that “Everitas” is not Moreno, but Justin Williams, who is not a
party to this action. Moreover, an examination of the content of
the web postings suggests that they were written by Williams,
not Moreno.
Nor is the Court persuaded by Defendant’s allegation that
Williams acted at Moreno’s direction. (See Tringali Cert. 2 ¶
2.) Plaintiffs assert that the relationship they have with
Williams is in the past. (See Complaint [Docket Item 1-1] ¶ 7)
(stating that the “Plaintiffs and Williams, either individually
or through one of Williams’ companies, previously worked
together on many laser sale transactions . . . .”) They also
note that “[a]lthough the Plaintiffs and Williams had sold many
lasers together prior to 2009, most of the Plaintiffs’ sales
after 2009 did not involve Williams or any of his companies.”
(Id. ¶ 8.) Additionally, Moreno asserts that he did not ask or
direct anyone to write the web postings, that he has no
“authority or control over Justin Williams,” and that Williams
“is not an employee or agent of Medpro.” (Moreno Cert. [Docket
Item 22-1] ¶¶ 5, 7, 8.) He further asserts that he did not know
about the web postings by Williams until he was alerted to them
by his attorney. (Id. ¶ 6.)
Tringali points to nothing in the record that would suggest
that Williams and Moreno have a current relationship, or that
Williams would take orders from Moreno. Tringali claims that
Williams and Moreno were involved in a single business
transaction together as late as 2012, but that hardly suggests
that the two individuals conspired together to create web
postings in 2014 disparaging Tringali. Similarly, the emails
Tringali attaches from 2008 and 2010 indicating that the two had
some sort of business relationship at the time is insufficient
for an inference that Moreno and Williams planned the incident
in question, four years later. In short, Tringali has not
provided a single shred evidence in support of his bald
assertion that “Medpro and Williams are one and the same,” nor
can the Court find anything in the record to show that Williams
and Moreno have a current business relationship.
In the absence of any evidence that Plaintiffs played a part
in putting up the two allegedly disparaging web posts, Defendant
26

Having found that Defendant has willfully defaulted and as
not proffered a likely meritorious defense, the Court turns
briefly to the question of prejudice. Plaintiffs argue that they
were prejudiced when the state court adjourned the preliminary
injunction hearing for 20 days when Mr. Leven refused to accept
service of process on the false assertion that he did not
represent Defendant in the case. Mr. Leven’s assertion was
false, as indeed he represented Tringali and acted as his
attorney to remove the case to federal court. Plaintiffs
suffered the prejudice of unwarranted delay caused by Leven’s
dilatory behavior and later by his failure to answer after the
case was removed to federal court. In this Court, Plaintiffs
moved for an order to show cause promptly after removal, and a
preliminary injunction was entered one month later, or a total
of two months after the initial preliminary injunction hearing
was scheduled in state court on May 23, 2014, all due to
Defendant’s tactics in refusing service and then, when reserved, removing the case to federal court.
The Third Circuit has stated that as a general matter, the
court “does not favor defaults” and “in a close case doubts
should be resolved in favor of setting aside the default and

cannot show that an injunction directed at Moreno and MedPro to
take down Williams’ web postings would likely succeed.
27

reaching a decision on the merits.” Farnese v. Bagnasco, 687
F.2d 761, 764 (3d Cir. 1982). This is not a close case. Because
Defendant’s conduct (both attorney and client) in failing to
timely answer was willful, because Defendant has not raised a
meritorious defense to the Plaintiffs’ claims, and because
prejudice accrued to Plaintiff, the Court will deny Defendant’s
motion for relief from default.
Defendant’s request for a preliminary injunction will
therefore be dismissed as moot without prejudice to Defendant’s
right to file a separate action in a court of competent
jurisdiction.8 An accompanying Order will be entered.
***
The Court will deny Plaintiffs’ request for sanctions under
Rule 11, Fed. R. Civ. P., against Defendant for making false
statements about Plaintiffs in his motion for a preliminary
injunction.9 (See Opp. to Mot. for Prelim. Inj. at 4.) The Court

8

As Defendant’s motion for a preliminary injunction is moot, the
Court need not address Plaintiff’s request for sanctions against
Defendant for making false statements in its preliminary
injunction motion. (See Opp. to Mot. for Prelim. Inj. at 4.)
9
In determining whether to impose sanctions under Federal Rule
of Civil Procedure 11, courts must apply an objective good faith
standard by testing the knowledge of a signing attorney against
a testing the knowledge of a signing attorney against a
“reasonable” standard. Napier v. Thirty or More Unidentified
Agents, 855 F.2d 1080, 1090–91 (3rd Cir. 1988); Lieb v. Topstone
Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986). The critical
element of the objective good faith standard is the reasonable
inquiry requirement. Consequently, sanctions shall only be
28

was unimpressed with Defendant’s proposed motion, as discussed
above, but has dismissed it as moot. The proposed motion, in the
end, counted against Defendant in his Rule 55(c) motion. The
Court is unwilling to open this case for a mini-trial on the
truth or falsity of Defendant’s proposed allegations in the
context of a Rule 11 hearing, when the Court has already
determined that these allegations are a nullity due to
Defendant’s default.
IV. CONCLUSION
For the foregoing reasons, the Court will deny Defendant’s
motion to vacate default and dismiss Defendant’s motion for a
preliminary injunction as moot. The accompanying Order will be
entered.

June 30, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

imposed when it appears that a pleading has been interposed for
any improper purpose or where, after reasonable inquiry, a
competent attorney could not form a reasonable belief that the
pleading is well grounded in fact and is warranted by existing
law. Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir.
1988). Here, Defendant’s proposed pleading has not been
permitted to be filed, and unless it is filed, the requirement
for Rule 11 sanctions is not satisfied.
29