2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-23-2012

Baldinger v. Ferri

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2701

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Recommended Citation

"Baldinger v. Ferri" (2012). 2012 Decisions. Paper 955.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-2701

____________ 

 

BRUCE E. BALDINGER, Appellant

v.

ANTONIO FERRI; MATTEO PATISSO; 

NATIONAL FRAUD CONSTABLE, 

agent of THE NATIONAL FRAUD CONSTABLE

___________ 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3-10-cv-03122)

District Judge: Peter G. Sheridan

___________ 

Submitted Under Third Circuit LAR 34.1

April 20, 2012

Before: VANASKIE, BARRY, and CUDAHY,

* Circuit Judges

(Filed: May 23, 2012)

___________ 

OPINION OF THE COURT 

___________

VANASKIE, Circuit Judge.

 * Honorable Richard D. Cudahy, United States Court of Appeals for the Seventh 

Circuit, sitting by designation.
2

Bruce Baldinger appeals the District Court’s order dissolving a preliminary 

injunction that it previously entered against Mateo Patisso, contending that the District 

Court failed to make adequate findings of fact and conclusions of law in support of its 

order and that the District Court abused its discretion in dissolving the preliminary 

injunction sua sponte. We agree that the District Court made inadequate findings of fact 

and conclusions of law. Accordingly, we will vacate the District Court’s order dissolving 

the preliminary injunction and remand this matter for further proceedings.

I.

As we write primarily for the parties, who are familiar with the facts and 

procedural history of this case, we set forth only those facts necessary to our analysis. On 

June 18, 2010, Bruce Baldinger, an attorney, sued Antonio Ferri, Mateo Patisso, and 

various other defendants for defamation per se, invasion of privacy, injurious falsehood, 

defamation, trade libel, tortious interference with business and economic advantage, and 

intentional and negligent infliction of emotional distress. The complaint alleges that Ferri 

filed a suit in the Eastern District of New York, and that Baldinger entered an appearance 

on behalf of the defendants in that suit. Ferri and his agent, Patisso, allegedly responded 

to Baldinger’s representation of the defendants by publicly disseminating false and 

private information about Baldinger. The alleged false statements included 

representations that Baldinger committed various unethical and criminal activity, and that 

he was “likely to be disbarred.” (A. 17.)

On September 9, 2010, the District Court entered a default judgment against 

Patisso, which, in relevant part, “permanently enjoined [him] from writing, printing,
3

sending, publishing, e-mailing, posting, corresponding, or otherwise disseminating any 

derogatory information regarding [Baldinger] or [Baldinger’s] law firm regarding any of 

their personal or business finances, or alleged unethical or criminal activity.” (A. 76-77.) 

The order also required Patisso “to remove any writing, printing, e-mail, posting, 

correspondence, or any other derogatory information regarding [Baldinger] or 

[Baldinger’s] law firm regarding any of their personal or business finances, or alleged 

unethical or criminal activity.” (A. 77.)

On February 8, 2011, Patisso moved to vacate the default judgment, which the 

District Court granted on February 28, 2011.1

 In vacating the default judgment, however, 

the District Court entered a preliminary injunction against Patisso identical in content to

the prior permanent injunction.2

On April 12, 2011, Baldinger moved for the District Court to hold Patisso in 

contempt for sending an allegedly derogatory e-mail to Baldinger’s office and to an outof-state attorney. The District Court held a hearing, in part, on Baldinger’s contempt 

motion on April 28, 2011, in which it indicated that it regarded Baldinger’s action 

primarily as a defamation suit, and expressed concern that entering a preliminary 

injunction against Patisso was inappropriate in such an action. The District Court did not, 

 1 Before Patisso sought to vacate the default judgment, Baldinger moved on 

September 23, 2010 and on January 11, 2011 for the District Court to hold Patisso in 

contempt for allegedly violating the permanent injunction. The District Court declined to 

grant either of these motions.

2 The only substantive difference between the permanent injunction and the 

preliminary injunction was that the permanent injunction also applied to an entity known 

as the “National Fraud Constable.” (A. 76.) The preliminary injunction applied only to 

Patisso.
4

however, dissolve the injunction at that time, instead stating that it would reconsider the 

preliminary injunction upon request and that it would conduct a hearing on the injunction 

before reaching a decision. On April 29, 2011, the District Court denied Baldinger’s 

April 12, 2011 motion to hold Patisso in contempt.

On May 26, 2011, Baldinger filed an application for the entry of an order to show 

cause for criminal contempt against Patisso, asserting that Patisso violated the 

preliminary injunction by allegedly sending a derogatory document to one of his clients. 

On June 6, 2011, the District Court responded to Baldinger’s application by dissolving 

the preliminary injunction sua sponte. 

The June 6, 2011 order provides that “since [the time the District Court issued the 

preliminary injunction] . . . new facts and circumstances have arisen and reconsideration 

of the prior decision is appropriate.” (A. 3.) The order further explains that “since entry 

of the February Order, the Court has held multiple hearings and conferences with the 

parties and has been apprised of many underlying issues and facts in the case; and the 

Court finds [Baldinger] can no longer meet the rigorous standard to obtain . . . injunctive 

relief.” (A. 4.) Baldinger appealed, requesting that we vacate the District Court’s June 6, 

2011 order dissolving the preliminary injunction.

II.

The District Court had jurisdiction under 28 U.S.C. § 1332, and we have 

jurisdiction under 28 U.S.C. § 1292(a)(1).

3

 3 Patisso argues that we lack jurisdiction under 28 U.S.C. § 1291 because the 

District Court’s order is not final. Baldinger asserts jurisdiction, however, under 28

 We review a district court’s decision of 
5

whether to dissolve an injunction for abuse-of-discretion. See Secs. & Exch. Comm’n v. 

Warren, 583 F.2d 115, 121 (3d Cir. 1978). We examine the district court’s factual 

findings for clear error and review its legal conclusions de novo. See Brown v. City of 

Pittsburgh, 586 F.3d 263, 268 (3d Cir. 2009). 

Baldinger contends primarily that the District Court erred in dissolving the 

preliminary injunction because the District Court failed to state its factual findings and 

legal conclusions pursuant to Fed. R. Civ. P. 52(a)(2). Alternatively, Baldinger argues 

that the District Court abused its discretion in dissolving the injunction sua sponte, 

without affording him the opportunity to object. Patisso responds that Baldinger waived 

his argument that the District Court violated Rule 52(a)(2) by failing to raise this issue in 

the District Court. He also asserts that the District Court did not abuse its discretion in 

dissolving the injunction.4

A.

Rule 52(a)(1) provides that “[i]n an action tried on the facts without a jury or with 

an advisory jury, the court must find the facts specially and state its conclusions of law 

separately.” Rule 52(a)(2) essentially incorporates Rule 52(a)(1) by providing that “[i]n 

granting or refusing an interlocutory injunction, the court must similarly state the findings 

 

U.S.C. § 1292(a)(1), which permits interlocutory review of orders “granting, continuing, 

modifying, refusing or dissolving injunctions, or refusing to dissolve or modify 

injunctions.” Because the District Court’s order dissolved an injunction, we have 

jurisdiction.

4 Patisso does not, however, provide any facts or analysis in support of this 

argument. His argument thus does not help us to understand the basis for the District 

Court’s decision, as will be discussed further in Section II(B) infra. 
6

and conclusions that support its action.”5

We have held, however, that Rule 52(a)(2)’s requirements “do[] not differ from 

any of the other trial court errors[,] which are waived when no objection is raised in the 

district court.” Danny Kresky Enters. Corp. v. Magid, 716 F.2d 206, 215 (3d Cir. 1983); 

see also Educ. Testing Servs. v. Katzman, 793 F.2d 533, 537 (3d Cir. 1986) (“This court 

has held that there are situations in which a party’s failure to object in the district court to 

the court’s failure to meet Rule 52(a)’s requirement of specific findings of fact and 

conclusions of law will have waived that party’s objection.”) (citations omitted). 

Baldinger does not contest that he never raised the District Court’s failure to make 

sufficient findings under Rule 52(a)(2) before the District Court. Given our discussion in 

Section II(B), infra, however, we need not decide whether, as Patisso argues, Baldinger 

has waived his Rule 52(a)(2) argument on appeal.

Findings are inadequate if they “are not 

sufficient for a clear understanding of the basis of the decision.” H. Prang Trucking Co. 

v. Local Union No. 469, 613 F.2d 1235, 1238 (3d Cir. 1980) (quoting 9 Charles Alan 

Wright & Arthur R. Miller, Federal Practice and Procedure § 2577 (1st ed. 1971)). In 

this case, the District Court did not articulate any specific findings of fact or legal 

conclusions.

B.

 5 Although not raised by the parties, we recognize that Rule 52(a)(2) does not 

expressly apply to orders dissolving an existing injunction. We agree with the First 

Circuit, however, that dissolving an injunction “is the effective equivalent of a denial of a 

preliminary injunction, an event that unquestionably triggers Rule 52(a)’s requirement of 

findings.” Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1228 (1st Cir. 

1994) (emphasis omitted).
7

We find that the District Court’s explanation for its order is inadequate for us to 

engage in any meaningful review, and therefore will vacate the District Court’s order and 

remand. Even if a party waives the district court’s compliance with Rule 52(a)(2), “we 

nonetheless must examine the findings to ascertain if they are adequate to explain 

sufficiently the basis for the injunction so that we can perform our review function.” 

Educ. Testing Servs., 793 F.2d at 537 (citing Prof’l Plan Exam’rs, Inc. v. Lefante, 750 

F.2d 282, 289 (3d Cir. 1984)). If we determine that the findings are insufficient for us to 

review the district court’s order, “we may vacate . . . and remand notwithstanding a 

party’s waiver of its objection.” Id.

In this instance, the District Court’s order dissolving the injunction provides too 

little information for us to determine whether the District Court committed any legal error

or abused its discretion. The District Court justifies dissolving the injunction primarily 

on the grounds that “new facts and circumstances have arisen and reconsideration of the 

prior decision is appropriate.” (A. 3.) The District Court does not explain, however, 

what these new facts and circumstances are, or why they necessitate dissolving the 

injunction. 

Although the transcript of the April 28, 2011 hearing suggests that the District 

Court was concerned that the preliminary injunction was improper because, in its view, 

Baldinger raised primarily a defamation claim, the District Court’s statements from the

April 28, 2011 hearing are vague and hypothetical. Moreover, the District Court did not 

dissolve the injunction at the April 28, 2011 hearing, instead stating that it would review 

the injunction upon request and that it would hold a hearing before reaching a decision. 
8

We therefore believe that relying on the April 28, 2011 statements as explaining the June 

6, 2011 decision would be overly speculative. Accordingly, because we cannot 

determine whether the District Court erred or abused its discretion on the record that we 

have before us, we will vacate the District Court’s order and remand for further findings.

6

III.

For the foregoing reasons, we will vacate the District Court’s order and remand.

 6 Because the District Court’s factual findings and legal conclusions are 

inadequate for us to assess whether the District Court erred or abused its discretion, we 

do not reach Baldinger’s argument that the District Court abused its discretion in 

dissolving the injunction sua sponte.