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Moreno v. Tringali

United States District Court, D. New Jersey

June 27, 2017

MICHAEL MORENO and MEDPRO, INC. Plaintiffs,
v.
RORY E. TRINGALI, Defendant.

          Warren S. Wolf, Esq. GOLDBERG & WOLF, LLC Attorney for Plaintiffs

          Robert A. Vort, Esq. Attorney for Defendant

          OPINION

          HONORABLE JEROME B. SIMANDLE DISTRICT 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. A default [Docket Item 7] and a preliminary injunction [Docket Items 9 & 10] were previously entered in favor of Plaintiffs; the Court subsequently declined to set aside that default judgment. [Docket Items 26 & 27.]

         Pending before the Court is Plaintiffs' Motion for Partial Summary Judgment. [Docket Item 49.] For the reasons set forth below, the Court will grant Plaintiffs' Motion for Partial Summary Judgment on Plaintiffs' breach of contract claim and for a permanent injunction.

         II. BACKGROUND

         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 (“Agreement” or “Settlement Agreement”). (Ex. A to Compl. [Docket Item 1-1] at 7-8; Docket Item 54-7 at ¶ 8.) In addition to a breach of contract claim, the Complaint 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. [Docket Item 1-1.] Plaintiff moves for partial summary judgment only on the breach of contract claim (Count VI of the Complaint) and for a permanent injunction (Count X). [Docket Item 49-3 at 6.]

         The Settlement Agreement executed by Plaintiffs and Defendant in 2012 states at paragraph thirteen:

13. Non Disparagement and Defamation
Plaintiffs, Tringali and Syneron agree not to make any disparaging remarks about any Party to the civil litigation or cast any such Party in a negative light, except to the Prosecutor or Judge in the pending criminal litigation. The parties agree that each violation will result in the greater of $5000 damages per se or any actual damages a party can prove. This amount is not intended as a penalty, but is agreed upon in the event actual damages are too difficult to prove.
Plaintiffs and Defendants agree not to make any defamatory remarks about any Party to the civil litigation. The parties agree that each violation of this section will result in the greater of $5000 damages per se or any actual damages a party can prove. This amount is not intended as a penalty, but is agreed upon in the event actual damages are too difficult to prove.

[Docket Item 49-2 at 2.] The Agreement also provides that

. . . if any party is found to be in breach of this Agreement, it shall pay the reasonable legal fees and costs incurred by the non-breaching party to enforce its rights in this Agreement.

[Id. at 3.] Defendant admits that both of these provisions were in the Agreement he signed. [Docket Item 54-7 at ¶¶ 10, 11.]

         On April 4, 2014, Defendant emailed Plaintiffs and Justin Williams (a person also in the cosmetic laser business) with the subject line “Gloves are off, ” saying “I had ENOUGH with you, this is just the BEGINNING!” [Docket Item 50 at 41.] This email also included a link to a website apparently titled “JUSTIN-WILLIAMS-BROOKE-HORAN-WILLIAMS-LASER-FRAUD-CROOKS.COM.” [Id.] When a user clicked the link Defendant sent, the user would be connected to a website that included, inter alia, the following allegations, statements, documents, and images:

. “Mike Moreno Medpro Lasers, New Jersey Business Partner Justin Williams” [Docket Item 50 at 44];
. an email purportedly from Moreno saying that he would pay for “half of what JW [presumably Justin Williams] stole here, ” apparently in response to an email sent to “Mike Moreno” with the subject line “I HAVE BEEN SCAMMED!!!” and stating, “Mike/John [here, presumably again Justin Williams], you are quite a team!!” [id. at 45];
. another email to Mike Moreno from an apparently dissatisfied customer stating, “Jon/Mike, as per my last email, I would like to terminate my contract with Med Pro” and directing “Jon/Mike” to communicate with her lawyer “start[ing] legal proceedings” [id. at 46];
. emails from Justin Williams which purport to connect Mike Moreno to Justin Williams and Brooke Horan [id. at 46-47];
. more emails from apparently dissatisfied customers sent to Mike Moreno [id. at 48-49]; and
. several pictures of cars, passports, houses, and Justin Williams wearing only a towel [id. at 50-75].

         The website also contained graphics stating: “MORE PICTURES AND DOCUMENTS COMING SOON! STAY TUNED!” [Id. at 79-80.]

         Plaintiffs contend that the statements on the website were false “to the extent [the website] states and implies that Mike Moreno and/or Medpro are partners and/or involved with Justin Williams on the frauds and scams alleged on the Defendant's website.” [Docket Item 49 at ¶ 14.] Defendant contests this, stating that the statements were true. [Docket Item 54-7 at ¶ 14.]

         Plaintiffs also allege that “[t]he website casts the Plaintiffs in a negative light as it attempts to portray them as being involved in the alleged fraud and scams which are alleged on the website.” [Docket Item 49 at ¶ 15.] Defendant likewise contests this allegation: “The statements were true, and any bad light in which plaintiffs were framed was caused by their own conduct[.]” [Docket Item 54-7 at ¶ 15.]

         Defendant admits that the link to the website was mailed to Brooke Horan and Justin Williams as well as to Plaintiffs. [Id. at ¶ 16.] The website was created on March 28, 2014. [Id. at ¶ 32.] Defendant states that he removed some items from the website in April of 2014 and took down the website on June 13, 2014 [Docket Item 54-7 at ¶ 37]; however, Plaintiffs state that Defendant did not “remove any of the disparaging content against the Plaintiffs until on or after June 28, 2014.” [Docket Item 49 at ¶ 37.]

         In addition to the website, Plaintiff alleges that Defendant “has contacted” at least four of Plaintiffs' customers, allegedly “to dissuade [them] from doing business with the Plaintiffs by claiming the Plaintiffs rip off their customers, commit frauds, [and] that there are many other victims of the Plaintiffs' alleged frauds out there.” [Docket Item 49 at ¶¶ 17-24.] Defendant admits that he has been in contact with the four named parties (Leanne Velona, Jen Chura, Pamela Bellow-Olatunji, and Chafic Medawar) but denies that he did so for the purpose alleged by Plaintiffs; rather, “those people reached out to Tringali for help dealing with plaintiffs[.]” [Docket Item 54-7 at ¶ 17.]

         In late 2013 to early 2014, Defendant corresponded with Velona and admits to stating that “Plaintiffs were ripping people off, and . . . included several Internet links called Ripoffreport.com, Complaintsboard.com, and Scamclub.com”; however, he states, “the statements were true.” [Id. at ¶ 20.] On March 25, 2014, Defendant emailed Velona regarding “other ‘victims' of Plaintiffs and a potential way to ‘recover'[, ]” which Defendant states was “in response to Velona's request to Tringali for help dealing with plaintiffs.” [Docket Item 49 at ¶ 21; Docket Item 54-7 at ¶ 21.] On April 5, 2014, Defendant emailed Velona again, wherein he stated that he had already helped two of Plaintiffs' “victims.” [Docket Item 54-7 at ¶ 22.] Finally, on April 9, Defendant sent Velona “a parcel report of the assessed value of Plaintiff's home.” [Id. at ¶ 23.] Plaintiff alleges that this was “an attempt to communicate that Plaintiffs were becoming rich from the alleged scams” [Docket Item 49 at ¶ 24]; Defendant denies this, stating that he “sent the emails to Velona to help a victim of plaintiffs' scams, ” but does not explain how sending Velona a parcel report of the value of Plaintiff's home would do so. [Docket Item 54-7 at ¶ 24.]

         On March 6, 2014, Defendant admits, he sent an email with “Medpro” in the subject line, wherein he described himself as a victim of fraud. [Docket Item 54-7 at ¶¶ 25-27.] Plaintiffs allege that Defendant sent this email to twelve customers and/or industry professionals, including Chura, Medawar, Bellow-Olatunji, and Mike Goodrich. [Docket Item 49 at ¶ 25.] Defendant admits to sending the email to Chura, Medawar, and Bellow- Olatunji, but denies that the Complaint refers to Mike Goodrich. [Docket Item 54-7 at ¶ 25.] However, a review of the Amended Complaint shows that Plaintiffs did allege that Defendant disparaged Plaintiffs to Mike Goodrich. [Docket Item 1-1 at ¶ 61.]

         Finally, Plaintiff alleges that “Defendant further disparaged Plaintiffs in communications with at least five (5) industry professionals: Tony Kokjohn, Jean Marc Porier, Mike Goodrich, Doug Grief, and Rebecca Bell.” [Docket Item 49 at ¶ 28.] Defendant denies this allegation, stating: “Any and all statements by defendant about plaintiffs were true.”[1] [Docket Item 54-7 at ¶ 28.]

         The Court previously entered a preliminary injunction in this matter. [Docket Items 9 & 10.] Among other things, the Court ordered Defendant Tringali to (1) remove all references to Plaintiffs on Defendant's 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 ...


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