Bernath v. Seavey

Filing 163

ORDER denying as moot 117 Plaintiff's Motion to Dismiss Defendant Seavey and Legion Answer to Complaint. Plaintiff's Motion for Judgment on the Pleadings 118 is DENIED. Defendant Seavey's Motion to Strike Plaintiff's Moti on for Summary Judgment on Copy Right Infringement, only 124 is GRANTED. The Clerk is directed to STRIKE Plaintiff's Motion for Summary Judgment Copyright Infringement Cause of Action 121 . Defendant Seavey's Motion to Strike Plaintiff& #039;s Motion for Summary Judgment on Seavey's Counterclaims 125 is GRANTED. The Clerk is directed to STRIKE Plaintiff's Motion for Summary Judgment against Cross-complaint of Mark Seavey 122 . Plaintiff's Motion for Summary Judgme nt Copyright Infringement Cause of Action 127 is DENIED as duplicative. The Clerk of Court is directed to STRIKE Plaintiff's Motion for Summary Judgment Copyright Infringement Cause of Action 127 . Plaintiff's Notice of Motion and Moti on to Exceed Page Limit for Summary Judgment Motion 133 is DENIED. Defendants' Joint Motion for Summary Judgment on Plaintiff's Copyright Infringement Claims and American Legion's Motion for Summary Judgment for Declaratory Judgment on Copyright Infringement 136 is DENIED without prejudice. Defendants' Joint Motion for Summary Judgment on Plaintiff's Intentional Infliction of Emotional Distress Claim and American Legion's Motion for Summary Judgment for Declara tory Judgment on Plaintiff's Claim of Intentional Infliction of Emotional Distress 137 is DENIED without prejudice. Defendant American Legion's Motion for Summary Judgment for Copyright Infringement, Cybersquatting, and Violation of Feder al Statues Regarding Emblem and Name of American Legion 138 is DENIED without prejudice. Defendants' Joint Verified Motion for Summary Judgment for Libel and Defamation per se 139 is DENIED without prejudice. The parties may file amended mot ions for summary judgment that comply with this Order, the Federal Rules of Civil Procedure, and Middle District of Florida Local Rules on or before March 9, 2017. Responses to any dispositive motions are due on or before March 23, 2017. Signed by Judge Sheri Polster Chappell on 2/23/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL A. BERNATH,
Plaintiff,
v.

Case No: 2:15-cv-358-FtM-99CM

MARK CAMERON SEAVEY,
Defendant.
/
OPINION AND ORDER1
Before the Court are the following motions filed by Plaintiff Daniel A. Bernath,
Defendant Mark Cameron Seavey, and Intervenor Defendant American Legion:




Plaintiff’s Motion for Judgment on the Pleadings (Doc. 118);



Plaintiff’s Motion for Summary Judgment Copyright Infringement Cause of
Action (Doc. 121);



Plaintiff’s Motion for Summary Judgment against Cross-complaint of Mark
Seavey (Doc. 122);



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Plaintiff’s Motion to Dismiss Defendant Seavey and Legion Answer to
Complaint, Motion to Dismiss Cross-Defendant Legion and Seavey Cross
Complaint for Disobedience of Court Order and Intentionally Refusing to
Submit to Mediation, and Alternatively Motion to Compel Mediation (Doc. 117);

Defendant Seavey’s Motion to Strike Plaintiff’s Motion for Summary Judgment
on Copyright Infringement (Doc. 124);

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The Court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the Court.



Defendant Seavey’s Motion to Strike Plaintiff’s Motion for Summary Judgment
on Seavey’s Counterclaims (Doc. 125);



Plaintiff’s Motion for Summary Judgment Copyright Infringement Cause of
Action (Doc. 127);



Plaintiff’s Notice of Motion and Motion to Exceed Page Limit for Summary
Judgment Motion (Doc. 133);



Defendants’ Joint Motion for Summary Judgment on Plaintiff’s Copyright
Infringement Claims and American Legion’s Motion for Summary Judgment for
Declaratory Judgment on Copyright Infringement (Doc. 136);



Defendants’ Joint Motion for Summary Judgment on Plaintiff’s Intentional
Infliction of Emotional Distress Claim and American Legion’s Motion for
Summary Judgment for Declaratory Judgment on Plaintiff’s Claim of Intentional
Infliction of Emotional Distress (Doc. 137);



Defendant American Legion’s Motion for Summary Judgment for Copyright
Infringement, Cybersquatting, and Violation of Federal Statues Regarding
Emblem and Name of American Legion (Doc. 138);



Defendants’ Joint Motion for Summary Judgment for Libel and Defamation per
se (Doc. 139); and



Defendants’ Motion for Brief Extension of Deadline for Dispositive Motions
(Doc. 140).

Before addressing the above motions, the Court reiterates that the Federal Rules
of Civil Procedure and Middle District of Florida Local Rules are not mere suggestions
that can be ignored. The Court has warned that it will not tolerate continued noncompliance with the procedural rules. This case has been pending nearly twenty months,
and the repeated failure to comply with the rules has thwarted the just, speedy, and
inexpensive determination of this case. That stops here.
Against this backdrop, the Court will address the above-referenced motions.

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A. Plaintiff’s motion to dismiss (Doc. 117)
Despite the title of Plaintiff’s motion, he moves to compel mediation. (Doc. 117).
Last week, however, the Court ordered the parties to complete mediation and extended
the mediation deadline. Since then, the parties have scheduled mediation for February
24, 2017. (Doc. 142). Accordingly, Plaintiff’s motion (Doc. 117) is DENIED as moot.
B. Plaintiff’s motions for judgment on the pleadings (Doc. 118)
Next, Plaintiff moves to dismiss Defendant Mark Seavey’s Answer and Cross
Compliant under Federal Rule of Civil Procedure 12(c) because he fails to state a cause
of action and defense. (Doc. 118). The Court has addressed the same issues raised in
Plaintiff’s motion twice before (Doc. 40; Doc. 49), and thus it sees no reason to do so for
a third time. The Court also declines to construe Plaintiff’s motion as one for summary
judgment, as that would be duplicative of his three pending motions for summary
judgment (Doc. 121; Doc. 122; Doc. 127). Accordingly, Plaintiff’s Motion for Judgment
on the Pleadings (Doc. 118) is DENIED.
C. Defendant Seavey’s Motions to Strike Plaintiff’s Motions for Summary
Judgment (Doc. 124; Doc. 125).
Defendant Seavey moves to strike (Doc. 124; Doc. 125) Plaintiff’s two motions for
summary judgment (Doc. 121; Doc. 122) for failure to comply with the Middle District of
Florida Local Rules. Neither of Plaintiff’s motions comply with the Local Rule’s twentyfive (25) page limit. (Doc. 121; Doc. 122). See M.D. Fla. R. 3.01(a). His motions are
forty-eight (48) and sixty-nine (69) pages of exhibits, disjointed narrative, and conclusory

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statements.2 In what appears to be an effort to cure his motions’ verbosity, Plaintiff moves
to exceed the page limit (Doc. 133). Because that motion is untimely, it is denied.
Accordingly, the Court grants Defendant Seavey’s motions to strike Plaintiff’s
motions for summary judgment (Doc. 124; Doc. 125).3 This decision should not surprise
Plaintiff, as the Court has warned him that his failure to comply with the Local Rules would
result in non-compliant filings being “stricken without further warning.” (Doc. 84 at 2; see
also Doc. 19; Doc. 33; Doc. 40; Doc. 58; Doc. 101; Doc. 102; Doc. 142).
D. Defendants’ Motions for Summary Judgment
Finally, Defendants have filed four motions for summary judgment. (Doc. 136;
Doc. 137; Doc. 138; Doc. 139). Specifically, they have filed a combination of individual
and joint motions separating each by the counts in the First Amended Complaint (Doc.
20) and their own counterclaims (Doc. 31; Doc. 69). The Court takes issue with this
strategy because they did not seek the Court’s leave prior to filing. In addition, each
Defendant is permitted one summary judgment motion, absent leave of Court. See Fed.
R. Civ. P. 56(a); M.D. Fla. R. 3.01(a)

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To the extent that Plaintiff recognizes that he is unable to prosecute this case and
comply with procedural rules due to his mental and physical disabilities, he should
continue to seek legal counsel. (See e.g., Doc. 131 at ¶ 58 (admitting, “[t]wo law firms in
Fort Myers have expressed an interest in conducting [Plainitff’s] trial”). That said, the
Court reminds Plaintiff that his pro se status does not insulate him from complying with
the Federal Rules of Civil Procedure and Local Rules. See Beckwith v. Bellsouth
Telecomms., Inc., 146 F. App'x 368, 371 (11th Cir. 2005); Grew v. Hopper, No. 2:07-cv550, 2008 WL 114915, at *2 (M.D. Fla. Jan. 9, 2008).
Because Plaintiff’s has filed two identical motions for summary judgment on his copyright
infringement claim (compare Doc. 121 with Doc. 127), the Court also strikes the
subsequent motion for failure to comply with the Local Rules.
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The Court, therefore, denies without prejudice Defendants’ motions for summary
judgment (Doc. 136; Doc. 137; Doc. 138; Doc. 139). Each Defendant may refile an
amended motion that does not exceed twenty-five (25) pages in length. Alternatively,
they may file a joint amended motion for summary judgment that does not exceed thirtyfive (35) pages in length.
Accordingly, it is now
ORDERED:
1.

Plaintiff’s Motion to Dismiss Defendant Seavey and Legion Answer to

Complaint (Doc. 117) is DENIED as moot.
2.

Plaintiff’s Motion for Judgment on the Pleadings (Doc. 118) is DENIED.

3.

Defendant Seavey’s Motion to Strike Plaintiff’s Motion for Summary

Judgment on Copy Right Infringement, only (Doc. 124) is GRANTED. The Clerk is
directed to STRIKE Plaintiff’s Motion for Summary Judgment Copyright Infringement
Cause of Action (Doc. 121).
4.

Defendant Seavey’s Motion to Strike Plaintiff’s Motion for Summary

Judgment on Seavey’s Counterclaims (Doc. 125) is GRANTED. The Clerk is directed to
STRIKE Plaintiff’s Motion for Summary Judgment against Cross-complaint of Mark
Seavey (Doc. 122).
5.

Plaintiff’s Motion for Summary Judgment Copyright Infringement Cause of

Action (Doc. 127) is DENIED as duplicative. The Clerk of Court is directed to STRIKE
Plaintiff’s Motion for Summary Judgment Copyright Infringement Cause of Action (Doc.
127).

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6.

Plaintiff’s Notice of Motion and Motion to Exceed Page Limit for Summary

Judgment Motion (Doc. 133) is DENIED.
7.

Defendants’ Joint Motion for Summary Judgment on Plaintiff’s Copyright

Infringement Claims and American Legion’s Motion for Summary Judgment for
Declaratory Judgment on Copyright Infringement (Doc. 136) is DENIED without
prejudice.
8.

Defendants’ Joint Motion for Summary Judgment on Plaintiff’s Intentional

Infliction of Emotional Distress Claim and American Legion’s Motion for Summary
Judgment for Declaratory Judgment on Plaintiff’s Claim of Intentional Infliction of
Emotional Distress (Doc. 137) is DENIED without prejudice.
9.

Defendant American Legion’s Motion for Summary Judgment for Copyright

Infringement, Cybersquatting, and Violation of Federal Statues Regarding Emblem and
Name of American Legion (Doc. 138) is DENIED without prejudice.
10.

Defendants’ Joint Verified Motion for Summary Judgment for Libel and

Defamation per se (Doc. 139) is DENIED without prejudice.
11.

The parties may file amended motions for summary judgment that comply

with this Order, the Federal Rules of Civil Procedure, and Middle District of Florida Local
Rules on or before March 9, 2017. Responses to any dispositive motions are due on or
before March 23, 2017.
DONE and ORDERED in Fort Myers, Florida this 23rd day of February 2017.

Copies: All Parties of Record

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