Bernath v. Youtube LLC et al
Filing
59
OPINION AND ORDER granting 54 motion to dismiss and the First Amended Complaint is dismissed without prejudice as to the First, Fifth, Sixth, and Seventh Causes of Action, and otherwise with prejudice. Plaintiff may file a Third and last Amende d Complaint as to those viable claims dismissed without prejudice within 14 days of this Opinion and Order. See Opinion and Order for details. The Clerk shall terminate YouTube, LLC as a defendant. Signed by Judge John E. Steele on 3/20/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL A. BERNATH,
Plaintiff,
v.
Case No: 2:16-cv-40-FtM-29CM
YOUTUBE LLC, DON SHIPLEY,
and
CAROL
DIANE
BLAZER
SHIPLEY,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss (Doc. #54) filed on December 29, 2016. Plaintiff
filed an Opposition (Doc. #56) on January 4, 2017.
I.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
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).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted).
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
“A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Ray v. Spirit Airlines, Inc.,
836 F.3d 1340, 1348 (11th Cir. 2016) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
II.
As a preliminary matter, plaintiff asserts subject-matter
jurisdiction based on the presence of complete diversity among the
parties, as well as based on the presence of claims asserted
pursuant
to
federal
statutes.
(Doc.
#53,
¶
40.)
Before
considering whether plaintiff has sufficiently stated his claims,
the
Court
must
jurisdiction.
consider
whether
it
Fed. R. Civ. P. 12(h)(3).
lacks
subject-matter
Defendants also raised
the issue of this Court’s subject-matter jurisdiction, but argue
that the undersigned should follow the “first-filed rule” and
dismiss this case based on the decision by the Honorable Sheri
Polster Chappell dismissing a related case without prejudice on
November 18, 2016. 1
(Doc. #54, pp. 7-10.)
1
See Bernath v. The American Legion, 2:16-cv-596-FTM-38MRM,
Doc. #86, wherein the case was dismissed without prejudice for
lack of subject-matter jurisdiction.
2
A. Diversity of the Parties
Diversity
jurisdiction
requires
complete
diversity
of
citizenship, and that the matter in controversy exceed the sum or
value of $75,000, exclusive of interest and costs.
28 U.S.C.
§ 1332(a); Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261
(11th Cir. 2000).
Plaintiff is alleged to be domiciled in the State of Florida.
(Doc. #53, ¶ 42.)
Extreme Seal Experience LLC is not a named party
in the caption but is listed as a defendant and is purported to be
a limited liability company registered in the State of Virginia
with a principal place of business listed in Maryland with the
only “owner” being Don Shipley. 2
(Id. ¶¶ 81-82.)
YouTube, LLC
was dropped as a party although still listed as a named defendant,
and therefore will be ignored for review purposes.
Defendants
Don
Shipley
domiciled in Maryland.
and
Diane
Shipley
(Id. ¶¶ 42-43.)
are
both
(Id. ¶ 5.)
listed
as
The amount in controversy
could be met based on the alleged profits gained by defendants,
and the threefold damages recoverable under RICO.
If the Shipleys
are the only intended defendants, plaintiff will be able to allege
2
Plaintiff does not clearly allege whether Don Shipley is
the only member of the limited liability company, and it is the
citizenship of the members that determine the citizenship of
Extreme Seal Experience LLC.
See Rolling Greens MHP, L.P. v.
Comcast SCH Holdings L.L.C., 374 F.3d 1020 (11th Cir. 2004).
3
diversity jurisdiction under Section 1332(a).
Otherwise, the
allegations as to Extreme Seal Experience LLC are inadequate and
the Court cannot determine if a diversity of citizenship exists.
B. Federal Question
The First Cause of Action alleges a violation of plaintiff’s
copyright ownership in a registered photograph by defendants who
published copies of the registered photograph, and profited from
the infringement.
Plaintiff alleges that he owns or has the
exclusive right to the photograph identified as 2A, which is
registered with the United States Copyright Office.
4, 6, 69.)
(Doc. #53, ¶¶
Plaintiff alleges that his intellectual property was
stolen and published on YouTube, LLC to garner viewers and pay per
view monthly subscriptions.
Plaintiff seeks to disgorge the
profits from the use of his photograph.
(Id. ¶¶ 69, 109-111.)
District Courts have original jurisdiction over civil actions
arising
under
trademarks.
federal
statutes
28 U.S.C. § 1338(a).
regulating
copyrights
and
As previously stated, plaintiff
must show that he owns a copyrighted work, and that defendants
copied protected elements of the copyrighted work.
pp. 4-5.)
See Doc. #52,
Plaintiff has adequately pled a claim for copyright
4
infringement 3, although he has done so in a shotgun manner by
incorporating superfluous allegations irrelevant to the claim as
further discussed below.
22, 23-37.)
(See, e.g., Doc. #53, ¶¶ 11, 12, 19, 20,
The Court finds that plaintiff has alleged a federal
question establishing this Court’s subject-matter jurisdiction.
III.
Defendants argue that the First Amended Complaint fails to
comport with Federal Rules of Civil Procedure 8 and 10, but
defendants decline to present arguments as to Counts II through
VII arguing that Judge Chappell has already determined that these
counts fail to state a claim. 4
Although many of the factual
allegations are identical, this case does not name the additional
defendants
named
in
that
case,
and
the
jurisdiction is not binding on this case.
dismissal
based
on
The Court will consider
defendants’ argument as a general averment that plaintiff has
failed to state a claim on those counts as well.
The remaining
3
To the extent plaintiff is attempting to also incorporate a
trademark claim within the same count, such claim is unsupported
and dismissed.
4
Judge Chappell did not address the state claims because she
found no subject-matter jurisdiction existed over the federal
claims, and because no diversity of citizenship had been alleged.
5
arguments for transfer and to defer ruling pending a final decision
are otherwise moot, and were denied by separate Order (Doc. #57).
A. Shotgun Pleading
The Court has a sua sponte obligation to identify and dismiss
a shotgun pleading.
Wagner v. First Horizon Pharm. Corp., 464
F.3d 1273, 1280 (11th Cir. 2006).
See also Davis v. Coca-Cola
Bottling Co. Consol., 516 F.3d 955, 979 n.54 (11th Cir. 2008)
(collecting cases); Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th
Cir. 2001). Plaintiff’s First Amended Complaint is “a paradigmatic
shotgun pleading” with “claims interwoven in a haphazard fashion.”
T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543 n.14 (11th
Cir. 1985) (Tjoflat, J., dissenting).
The Eleventh Circuit has
identified several types of shotgun pleadings, and plaintiff has
filed a pleading with “multiple counts where each count adopts the
allegations of all preceding counts, causing each successive count
to carry all that came before and the last count to be a combination
of the entire complaint.”
Weiland v. Palm Beach Cty. Sheriff's
Office, 792 F.3d 1313, 1321 (11th Cir. 2015).
Plaintiff also
refers to defendants collectively, as responsible for each factual
allegation, without a clear demarcation of each party’s role.
Id.
at 1323.
The Second Cause of Action alleges a violation of 18 U.S.C.
§ 2333; the Third Cause of Action alleges a civil RICO violation;
6
the Fourth Cause of Action alleges negligence per se; the Fifth
Cause
of
Action
alleges
intentional
infliction
of
emotional
distress; and the Sixth and Seventh Causes of Action allege assault
and battery, respectively.
Each of these counts incorporates
paragraphs 1 through 107 in their entirety rendering the factual
basis meaningless, and failing to give defendants adequate notice
of the claims against them.
208, 213.)
(Doc. #53, ¶¶ 113, 150, 167, 173.
Plaintiff also alleges facts in various and lengthy
footnotes that will not be considered as they are not properly
stated in the numbered paragraphs pursuant to Fed. R. Civ. P.
10(b).
Therefore, the First Amended Complaint is due to be
dismissed without prejudice as a shotgun pleading.
B. Count Two
The Second Cause of Action generally alleges that defendants
have funded, planned, and carried out terrorist attacks against
military civilians by driving them to suicide or actually harming
them because of an opposition to United States v. Alvarez, 567
U.S. 709 (2012), and with the specific intent of committing acts
of
international
terrorism.
As
to
plaintiff
specifically,
plaintiff alleges that defendants terrorized him at his home, and
both individual defendants left numerous messages for plaintiff
inside of Florida.
(Doc. #53, ¶¶ 47-49.)
Plaintiff alleges that
Don Shipley attacked foreign nationals in their foreign country.
7
(Id. at ¶¶ 53, 97.)
Plaintiff alleges that defendants and another
individual contacted his children and ex-wife, and Scotland Yard,
in the United Kingdom, for the purpose of causing an investigation
to defame and cause stress to plaintiff as part of some elaborate
political agenda.
(Id., ¶¶ 99, 100-101.)
Defendants delivered
explosive or lethal devices to places of public access with the
intent to cause death or serious bodily injury, or to cause
destruction of property.
(Id. at ¶¶ 114-118.)
Plaintiff also
alleges investigations and torment of others who are not parties
to this case.
(Id. at ¶¶ 56-57.)
It is alleged that defendants targeted an aircraft owned by
plaintiff and others through a trust located at Page Field airport.
It is further alleged that defendants trespassed gates, locks, and
surveillance cameras to introduce a liquid into the fuel system
and interior of the aircraft to cause it to crash, and/or by
cutting the fuel line.
(Id. at ¶¶ 119, 121-123, 134.)
Plaintiff
alleges incidents of sabotage dating back to 2014, and through
2016.
(Id. at ¶¶ 124-131.)
airport,
plaintiff
also
Unrelated to the incidents at the
alleges
that
defendants
assaulting him at his home on October 31, 2015.
admit
to
(Id. at ¶ 142.)
Plaintiff alleges that defendants have a policy of using
terror attacks to intimidate civilian populations, and to change
the laws of the United States, United Kingdom, Canada and France,
8
but plaintiff’s damages stem from the sabotaging of his aircraft.
(Id. at ¶¶ 144, 148.)
abetted
acts
terrorism.
of
Plaintiff alleges that defendants aided and
terrorism
and
conspired
to
commit
acts
of
Plaintiff alleges, in a conclusory fashion, that these
acts are acts of international terrorism under 18 U.S.C. § 2331.
(Id. at ¶ 147.)
Under Title 18, United States Code, Section 2333(a), known as
the Anti-Terrorism Act (ATA),
[a]ny national of the United States injured in
his or her person, property, or business by
reason of an act of international terrorism,
or his or her estate, survivors, or heirs, may
sue therefor in any appropriate district court
of the United States and shall recover
threefold the damages he or she sustains and
the cost of the suit, including attorney's
fees.
18 U.S.C. § 2333(a) (emphasis added). 5
The term “international
terrorism” is defined as:
(1). . . activities that (A) involve violent acts or acts dangerous to
human life that are a violation of the
criminal laws of the United States or of any
State, or that would be a criminal violation
if committed within the jurisdiction of the
United States or of any State;
(B) appear to be intended--
5
The term “domestic terrorism” is also defined in the ATA,
18 U.S.C. § 2331(5), but is not referenced in Section 2333
governing civil remedies.
9
(i) to intimidate or coerce a civilian
population;
(ii) to influence the policy of a
government by intimidation or coercion;
or
(iii) to affect the conduct of a
government
by
mass
destruction,
assassination, or kidnapping; and
(C) occur primarily outside the territorial
jurisdiction
of
the
United
States,
or
transcend national boundaries in terms of the
means by which they are accomplished, the
persons they appear intended to intimidate or
coerce,
or
the
locale
in
which
their
perpetrators operate or seek asylum.
18 U.S.C. § 2331(1).
None of the alleged acts against plaintiff
or his aircraft transcended national boundaries, and are not
international acts of terrorism as defined by the ATA. The actions
pertaining
to
plaintiff’s
family
and
the
Scotland
Yard
investigations do not amount to coercion of a civilian population,
nor did they serve to influence the policy of a government.
Having
been previously dismissed without prejudice for failure to state
a claim, see 2:16-cv-596-FTM-38MRM, Doc. #86, this cause of action
will be dismissed with prejudice.
C. Count Three
The Third Cause of Action alleges a violation of 18 U.S.C. §
1962(a), otherwise known as the Racketeer Influenced and Corrupt
Organizations
Act
(RICO).
Plaintiff
alleges
that
defendants
acting as an enterprise committed two or more predicate acts, as
10
listed
in
18
U.S.C.
§
1961(1),
that
make
racketeering effecting interstate commerce.
up
a
pattern
of
Plaintiff includes a
myriad of racketeering activity including threats of murder and
arson,
extortion,
identification,
mail,
wire,
and
financial
institution fraud, obstruction of justice, criminal infringement
of copyrighted material, and even the use of chemical weapons.
(Doc. #53, ¶¶ 152-153.) Plaintiff alleges that defendants profited
from the enterprise by gaining membership, and that his injuries
flow from the use or investment of that income. 6
162.)
(Id. at ¶¶ 159,
However, plaintiff does not allege a factual basis to
support how the alleged crimes by defendants were the proximate
cause of plaintiff’s economic injuries.
Under RICO, it is unlawful for a person “who has received any
income
derived,
directly
or
indirectly,
from
a
pattern
of
racketeering activity or through collection of an unlawful debt”
to use or invest any part of the income acquired to establish or
operate an enterprise engaged in activities affecting interstate
or foreign commerce.
18 U.S.C. § 1962(a).
A person may institute
a civil action if “injured in his business or property” to recover
threefold damages, costs, and reasonable attorney’s fees.
6
18
Plaintiff also alleges a “property right” in his First
Amendment rights to display or wear what he wishes. (Doc. #53, ¶
157.)
11
U.S.C. § 1964(c).
Injuries must be for economic losses that flow
from the commission of the predicate acts, Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 497 (1985), and plaintiff cannot recover
“for those pecuniary losses that are most properly understood as
part of a personal injury claim,” Grogan v. Platt, 835 F.2d 844,
848 (11th Cir. 1988).
“Civil RICO plaintiffs must sufficiently
plead both racketeering activity and that the activity caused them
some injury.”
Ray v. Spirit Airlines, Inc., 836 F.3d at 1351.
Although defendants are alleged to have profited greatly from
their enterprise, plaintiff has not alleged that the realized
profits caused an economic injury to him flowing from the specified
predicate
acts.
Plaintiff
pled
a
non-pecuniary
reputational
injury and a dilution of the value of his copyright, Doc. #53, ¶
13, but did not allege that they were the direct result of
defendants’ racketeering activities.
The only viable economic
loss pled is as a result of sabotaging of the aircraft, Doc. #53,
¶ 148, but the aircraft is not owned by plaintiff and the predicate
act that led to the sabotage is unclear.
The Court finds that
plaintiff has failed to state a claim under RICO.
Having
been
previously
dismissed
without
prejudice
for
failure to state a claim, see 2:16-cv-596-FTM-38MRM, Doc. #86, and
finding an amendment would be futile, this cause of action will
also be dismissed with prejudice.
12
D. Count Four
In the Fourth Cause of Action, plaintiff alleges negligence
per
se
under
Florida
state
law
investigations without a license.
for
engaging
in
private
(Doc. #53, ¶¶ 162-171.)
The
failure to obtain a license pursuant to Fla. Stat. § 493.6201 to
operate a private investigation agency is not a violation of a
strict
liability
statute
or
a
violation
of
a
statute
that
establishes a duty to take precautions to protect a particular
class of persons or type of injury.
deJesus v. Seaboard C.L.R.
Co., 281 So. 2d 198, 201 (Fla. 1973).
The Court finds that
plaintiff cannot state a claim for negligence per se, and that any
amendment would be futile.
The claim will be dismissed with
prejudice. 7
E. Count Five
In the Fifth Cause of Action, plaintiff alleges intentional
infliction of emotional distress.
In support, plaintiff alleges
emotional distress based the property damage done to the aircraft
that could have resulted in his death, defamation, an accusation
by defendants of him of being a stalker causing his arrest and
incarceration, identity theft, surveillance of his home, invasion
7
The Court takes no position on whether plaintiff could state
a claim for mere negligence, which is not asserted.
13
of privacy and invasion of his trash, threatening to kill and
tormenting plaintiff to commit suicide, harassing plaintiff with
calls
at
all
hours,
and
publication
of
his
medical
records.
Plaintiff alleges that he has and continues to undergo treatment
for his emotional distress and the physical symptoms, he was on
suicide watch because defendants broadcast that plaintiff beat his
wife, molested children, and stole from the government, and that
the
average
outrageous.
member
of
the
community
would
find
the
behavior
(Doc. #53, ¶¶ 178-181, 183-185, 187, 189, 193, 196-
200, 203, 207.)
To state a claim for intentional infliction of emotional
distress,
plaintiff
must
show:
“(1)
deliberate
or
reckless
infliction of mental suffering; (2) outrageous conduct; (3) the
conduct caused the emotional distress; and (4) the distress was
severe.”
Liberty Mut. Ins. Co. v. Steadman, 968 So. 2d 592, 594
(Fla. 2d DCA 2007).
The claim requires that the conduct be “so
outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.”
Metropolitan
Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-79 (Fla. 1985);
Patterson v. Downtown Med. & Diagnostic Ctr., Inc., 866 F. Supp.
1379, 1383 (M.D. Fla. 1994).
The subjective response to the
conduct does not control, and the conduct must be evaluated on an
14
objective basis.
McCarson, 467 So. 2d at 278-79.
required behavior is a question of law.
The level of
Liberty Mut. Ins. Co. v.
Steadman, 968 So. 2d at 595.
Generally, threats, insults, or indignities are insufficient
to state a claim, unless for example plaintiff is threatened with
murder and rape of his family.
T-24MAP,
2008
WL
4194824,
(collecting cases).
Saadi v. Maroun, No. 8:07-CV-1976-
at
*4
(M.D.
Fla.
Sept.
9,
2008)
Even if defendants knew that plaintiff was
particularly susceptible to emotional distress, see doc. #53, ¶
176, this may only amount to heartless and flagrant behavior unless
the facts support “major outrage”.
(quoting Restatement
(Second)
of
Steadman, 968 So. 2d at 595
Torts
§
46
cmt.
f
(1965)).
Construed liberally, the Court finds that plaintiff may be able to
state a claim if provided an opportunity to amend and eliminate
the many irrelevant allegations.
The allegations of sabotage to
cause injury to plaintiff, threats intended to incite murder by
others of plaintiff, and taunting plaintiff to cause him to kill
himself would cause a member of a civilized community to exclaim
‘Outrageous!’
This claim will be dismissed without prejudice.
F. Counts Six and Seven
In the last two Causes of Action, plaintiff claims assault
and
battery
by
defendants
without
indicating
which
acted, or how each committed an assault and/or battery.
15
defendant
Setting
aside this problem, plaintiff alleges as to the Sixth Cause of
Action (assault) that defendants ambushed and barricaded plaintiff
inside his home and assaulted him “by placing him in fear of
battery.”
Plaintiff alleges that he was in fear that violence was
imminent, and defendants had the apparent ability to carry out the
threat.
Action
(Doc. #53, ¶¶ 209-210, 212.)
(battery),
plaintiff
alleges
As to the Seventh Cause of
that
he
was
piloting
an
aircraft and was about to take off but defendants had introduced
clogging materials into the fuel system and severed a control cable
causing him to decelerate and use emergency maneuvers.
Plaintiff
alleges that defendants created the dangerous conditions causing
injury to his wrist.
(Id., ¶¶ 214-219.)
An assault is an intentional and affirmative act to threaten
use of force, or to exert actual force, toward another “to create
a reasonable fear of imminent peril.”
Sullivan v. Atl. Fed. Sav.
& Loan Ass'n., 454 So. 2d 52, 54 (Fla. 4th DCA 1984) (citation
omitted).
A battery is the “intentional infliction of a harmful
or offensive contact upon the person of another.”
omitted).
Id. (citation
The victim’s state of mind is irrelevant.
Geovera
Specialty Ins. Co. v. Hutchins, 831 F. Supp. 2d 1306, 1313 (M.D.
Fla. 2011), aff'd, 504 F. App'x 851 (11th Cir. 2013).
Proof of
intent to commit a battery may be established by the “surrounding
16
circumstances.”
Paul v. Holbrook, 696 So. 2d 1311, 1312 (Fla. 5th
DCA 1997).
At this stage of the proceedings, the Court cannot find that
plaintiff could not state a claim based on the relevant factual
allegations peppered throughout the First Amended Complaint.
As
a result, the Court will dismiss these claims without prejudice to
allow plaintiff to amend.
defendant
that
In doing so, plaintiff must specify the
committed
the
acts,
and
incorporate
only
the
relevant facts to the claim.
Accordingly, it is now
ORDERED:
1. Defendant’s Motion to Dismiss (Doc. #54) is GRANTED and
the First Amended Complaint is dismissed without prejudice
as to the First, Fifth, Sixth, and Seventh Causes of
Action, and otherwise with prejudice.
Plaintiff may file
a Third and last Amended Complaint as to those viable
claims dismissed without prejudice within FOURTEEN (14)
DAYS of this Opinion and Order 8.
No further amendments
will be permitted.
8
The factual allegations should be tailored and streamlined
to avoid filing another shotgun pleading.
17
2. The Clerk shall terminate YouTube, LLC as a named defendant
in this case based on plaintiff’s statement that it is not
an intended defendant.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2017.
Copies:
Plaintiff
Counsel of record
18
20th
day of
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