Bernath v. Seavey

Filing 88

ORDER granting Defendant-Intervenor The American Legion's Motion to Dismiss Plaintiff's Cross-Complaint or, Alternatively, Motion to Strike (Doc. #77). Signed by Judge Sheri Polster Chappell on 9/30/2016. (CMC)

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.
/
ORDER1
This matter comes before the Court on Defendant-Intervenor’s Motion to Dismiss
Plaintiff's Cross-Complaint or, Alternatively, Motion to Strike (Doc. #77) filed on July 6,
2016. Plaintiff Daniel A. Bernath filed an untimely Response in Opposition (Doc. #80) on
August 16, 2016. This Motion is now ripe for the Court’s review.
BACKGROUND
In July 2015, Plaintiff Daniel A. Bernath, appearing pro se, brought this action
against Defendant Mark Cameron Seavey (“Seavey”) alleging, amongst other things,
copyright infringement and intentional infliction of emotional distress. (Doc. #20). Four
months later, Defendant-Intervenor The American Legion (“The American Legion”) joined
the action. (Doc. #71). The American Legion is a non-profit organization devoted to
veteran and military issues. (Doc. #77 at 2). Seavey is an employee of The American

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Legion. (Doc. #77 at 2). The root of the parties’ dispute stems from a photograph of
Plaintiff that he claims to have copyright protection over. (Doc. #20 at 2-3). Plaintiff claims
his likeness enjoys copyright protection and has been violated by both Seavey and The
American Legion’s reproduction of said photograph. (Doc. #20 at 2-3; Doc. #71 at 13).
In May 2016, Plaintiff initiated a Cross-Complaint against The American Legion,
asserting the following causes of action: “assault”; “intentional infliction of emotional
distress”; “property damage”; “civil remedy for criminal misconduct of defendant the
American Legion”; “intimidation of person over 65, disabled 100% US Navy service
connected veteran”; “intentional criminal acts by the American Legion with civil remedy”;
and “invasion of privacy.”2 (Doc. #71 at 40-41). Besides the stated causes of action,
Plaintiff further makes mention of copyright infringement and defamation throughout the
Cross-Complaint. (Doc. #71 at 13; 19-20; 29-30). The American Legion now moves to
dismiss or, alternatively, strike portions of the claims, arguing that Plaintiff’s CrossComplaint fails to state a claim. (Doc. #77 at 2). Plaintiff avers that his statements made
in the Cross-Complaint are true and further contends The American Legion instead filed
a Motion for Summary Judgment masquerading as a Motion to Dismiss. (Doc. #80 at 1).
In response, The American Legion renews its request for dismissal and insists
upon Plaintiff’s adherence to the applicable rules when stating claims. (Doc. #86 at 1).

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As stated, Plaintiff filed a Cross-Complaint (Doc. #71) against The American Legion. But the CrossComplaint is, in actuality, a counter-complaint. Nonetheless, the Court will abide by Plaintiff’s title of “CrossComplaint” to avoid confusion. See Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990) (stating that
because plaintiffs are proceeding pro se, the Court construes the Complaint more liberally than had it been
drafted by an attorney).

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LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), "a [c]omplaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Id. at 678. The issue in resolving such a motion is not whether
the non-movant will ultimately prevail, but whether the non-movant is entitled to offer
evidence to support his claims. See id. at 678-79.
"Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Id. at 679 (citations omitted). Although legal conclusions can
provide the framework for a complaint, factual allegations must support all claims. See
id. Based on these allegations, the court will determine whether the plaintiff's pleadings
plausibly give rise to an entitlement to relief. See id. at 678-79. Legal conclusions
couched as factual allegations are not sufficient, nor are unwarranted inferences,
unreasonable conclusions, or arguments. See Twombly, 550 U.S. at 555.
Rule 8 of the Federal Rules of Civil Procedure provides parallel pleading
requirements that also must be satisfied. Under this rule, "a pleading must contain a short
and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.
Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, the-defendant-unlawfullyharmed-me-accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

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Labels, conclusions, and formulaic recitations of the elements of a cause of action are not
sufficient. See id. at 678-79. Mere naked assertions are also inadequate. See id.
DISCUSSION
In its Motion to Dismiss, The American Legion argues that Plaintiff’s CrossComplaint not only fails to state a claim, but further contains claims that are immaterial,
redundant, impertinent, and scandalous material. (Doc. #77 at 1). Plaintiff responds that
(i) the facts he has stated are true; (ii) The American Legion’s Motion to Dismiss is actually
operating as a motion for summary judgment; and (iii) The American Legion and Seavey
have allegedly made additional threats against him. See (Doc. #80).
In the Cross-Complaint, Plaintiff strings together multiple facts addressing various
topics. (Doc. #71). At the very end, Plaintiff states several causes of action, in bold, with
no underlying facts to support the causes of action. (Doc. #71 at 40-41). Plaintiff does not
even state a recital of the elements for a majority of the causes of action he asserts.
Rather, he just lists several causes of action without any sort of separation or underlying
facts, violating Rule 10(b). See Fed. R. Civ. P. 10(b) ( requiring that “each claim founded
on a separate transaction or occurrence-and each defense other than a denial- must be
stated in a separate count or defense”). As best the Court can discern, Plaintiff attempts
to allege elements for copyright infringement, defamation, and intentional infliction of
emotional distress, but without supporting facts, these causes of action still fail pleading
requirements. (Doc. #71 at 13; 19-20; 29-30). Although this Court is lenient towards
plaintiffs proceeding pro se, Plaintiff must, at the bare minimum, allege facts sufficient to
meet the standards outlined in Rules 8 and 10 of the Federal Rules of Civil Procedure.
See Twombly, 550 U.S. at 555 (citation omitted) (Pleading “requires more than labels and

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conclusions, and a formulaic recitation of the elements will not do.”). For this reason, the
Court finds the Cross-Complaint insufficient and consequently, dismisses the CrossComplaint.3
As an addendum, the Court will shed light on Plaintiff’s concern over The American
Legion’s Motion to Dismiss operating as a motion for summary judgment. A court issues
summary judgment when it is satisfied that “there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A “genuine” issue exists if sufficient evidence can convince a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A “material” fact is present should it affect the outcome of the suit under governing law.
Id. Here, no such Motion for Summary Judgment exists. The American Legion clearly
moves to dismiss with the ultimate goal of eliciting from Plaintiff detailed elements for the
causes of action alleged. (Doc. #77 at 8). Consequently, the Court finds no merit in
Plaintiff’s argument and appropriately addresses the instant Motion under the Rule
12(b)(6) standard. See Fed. R. Civ. P. 12(b)(6).
Accordingly, it is now ORDERED:
Defendant-Intervenor The American Legion’s Motion to Dismiss Plaintiff's CrossComplaint or, Alternatively, Motion to Strike (Doc. #77) is GRANTED.
DONE and ORDERED in Fort Myers, Florida this 30th day of September, 2016.

Copies: All Parties of Record

At this time, the Court need not address The American Legion’s Motion to Strike as the Motion to Dismiss
has been granted.
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