Bernath v. Youtube LLC et al

Filing 77

OPINION AND ORDER denying 66 motion to dismiss the Second Amended Complaint however paragraph 63 (punitive damages) is stricken. Defendants shall file an answer within 14 days of this Opinion and Order. Signed by Judge John E. Steele on 9/15/2017. (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

DON SHIPLEY, CAROL DIANE
BLAZER SHIPLEY, and EXTREME
SEAL EXPERIENCE, LLC,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss the Second Amended Complaint (Doc. #66) filed on
July 10, 2017.

No timely response was filed, and the Court entered

an Order providing plaintiff an opportunity to respond.
#70.)

(Doc.

On August 25, 2017, plaintiff filed an “Opposition to

unserved Motion to Dismiss” (Doc. #73) (emphasis in original)
asserting

that

he

had

been

unaware

of

the

motion,

and

that

defendants were avoiding service of process for a state case.
Although entirely unresponsive to the motion to dismiss, the Court
will accept the opposition as plaintiff’s response.
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.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

accusation.”

an

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted).

Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether

2

they plausibly give rise to an entitlement to relief.”

Iqbal, 556

U.S. at 679.
II.
On March 20, 2017, the Court issued an Opinion and Order (Doc.
#59) granting defendant’s Motion to Dismiss and dismissing the
First Amended Complaint without prejudice as to the First, Fifth,
Sixth, and Seventh Causes of Action, and with prejudice as to the
Second, Third, and Fourth Causes of Action.
The Court specifically found that the First Amended Complaint
was a shotgun pleading as each of the counts was incorporated into
the first count.

The Court found that plaintiff could allege a

claim for copyright infringement and intentional infliction of
emotional distress, however both were peppered with irrelevant
allegations that should be eliminated. Plaintiff was granted leave
to file a second amended complaint, but the Court indicated that
no further amendments thereafter would be permitted.
Initially, finding no amended pleading, the Court directed
the entry of judgment in favor of defendants and the closure of
the case.

(Doc. #60.)

On June 15, 2017, the Court reopened the

case on plaintiff’s motion to set aside the judgment, vacated the
judgment, and allowed the case to proceed if plaintiff filed a
timely Second Amended Complaint.

(Doc. #64.)

On June 28, 2017,

plaintiff filed his Second Amended Complaint (Doc. #65).

3

III.
Although many of the allegations are convoluted, fanciful,
and may be exaggerated or untrue, when presented by a motion under
Rule 12(b), the Court takes the factual allegations as true to
examine

whether

a

plausible

claim

for

relief

is

stated.

Additionally, said allegations are construed liberally in light of
plaintiff’s pro se status.1

Plaintiff alleges a theft for profit

by defendants of a copyrighted image that is registered with the
United States Copyright Office, and intentional infliction of
emotional distress though defendants’ terrorizing of him, and his
property.
Plaintiff also refers to the tortious acts of Extreme Seal
Experience LLC, however the entity is not named as a defendant in
this

case,

and

those

allegations

will

not

be

considered.2

Plaintiff generally accuses defendants of committing journalism
and “illegal private investigation” within the State of Florida
seemingly

unrelated

to

either

claim

in

the

Second

Amended

Complaint.

The Court recognizes that plaintiff was a practicing
attorney at one time, but is not currently admitted to practice in
any State in the United States of America.
1

Defendants’ argument that Extreme Seal Experience, LLC is
an indispensable party is discussed below.
2

4

Plaintiff
published

to

also
their

generally
104,284

alleges

followers

that
that

defendants

they

had

each

murdered

plaintiff, and had tied him up as bait to lure and kill his friend,
a wounded and disabled Florida veteran so they could kill him too.
Defendants further published to over 200,000 followers the address
and telephone number of plaintiff causing hundreds of phone calls
and visits.

Defendant did the same to other individuals who are

not parties in this suit.

Plaintiff alleges that defendants are

co-conspirators in the wrongful acts, and aided and abetted their
followers to sabotage his aircraft and call him 24 hours a day.
As to Count One, plaintiff alleges that he holds a valid
copyright

to

a

photograph

published

on

January

1,

of

himself,

2004,

and

which

was

registered

with

originally
the

U.S.

Copyright Office on June 7, 2014. Plaintiff alleges that the theft
of his work occurred prior to registration but is continuing
through

republication,

and

parties

were

on

notice

when

the

copyright was noted on plaintiff’s website as of the June 7, 2014
date.

Plaintiff states that he used his own camera and film, and

did not give up ownership.

Plaintiff alleges that each defendant

has admitted they infringed plaintiff’s work and placed the work
onto merchandise in the form of t-shirts for monetary gain.
Plaintiff alleges that defendants continue to display the work
while charging and receiving payment by subscribers, and increase
the income to Extreme Seal Experience LLC, Don Shipley and Carol

5

Diane

Blazer

Shipley.

None

of

the

general

allegations

are

incorporated into Count One.
In Count Two, plaintiff incorporates all the previous general
allegations in paragraphs 1 through 443, to state that defendants
knew that plaintiff was and is peculiarly susceptible to emotional
distress, and that defendants’ conduct was outrageous.

Plaintiff

alleges that defendants personally and through others sabotaged
his aircraft causing property damage and a resulting risk of
physical harm or death.

Plaintiff alleges that defendants also

defamed him by contacting his neighborhoods to say they were coming
for plaintiff; by posting wanted posters in the neighborhood; by
contacting bar associations, and his former law school urging them
revoke his law degree; and by contacting local veterans urging
that he be expelled from the Legion and Veterans of Foreign War
Posts by making false but unidentified comments to them. Plaintiff
alleges that defendants also defamed him by stating to third
parties

that

plaintiff

was

having

sex

with

another

in

the

courthouse men’s room, that he is mentally ill, that plaintiff

The Second Amended Complaint is numbered paragraphs 1
through 44, but the First Count restarts at numbered paragraph 31
through paragraph 59 without incorporating the first 44
paragraphs.
The Second Count incorporates 1 through 44, and
continues with paragraph 60 and runs through paragraph 93. The
Wherefore clause is numbered 60 through 63.
3

6

beat his wife, that plaintiff is a child molester, and that
plaintiff stole money from the federal government.
Plaintiff alleges that defendants repeated statements to law
enforcement

that

plaintiff

was

stalking

them

resulting

in

a

restraining order, and his arrest for violation of the restraining
order.

Plaintiff also alleges that defendants contacted the

Scotland Yard and caused an investigation that resulted in the
questioning of plaintiff’s ex-wife who lives in the United Kingdom.
Plaintiff alleges that defendants invaded his privacy by
going through his trash and posting to their subscribers on when
and where to collect his trash.

Plaintiff alleges that defendants

have stated that they will kill plaintiff or torment him to
suicide.

Plaintiff goes on to allege that defendants “personally

and by and through agents” entered onto his curtilage to: bang on
the door at 4:00 a.m., disburse screws and nails on his driveway
and patio, glue plaintiff’s locks on his hanger, and set fire to
his mailbox.

Plaintiff alleges that defendants stated to him that

they performed sexual acts with a photograph of his minor daughter.
Plaintiff further alleges that defendants created a false image of
plaintiff’s face onto a depiction of an individual torturing a
child, and then defendants distributed the image.
Plaintiff alleges physical and emotional distress, and that
the fear of what defendants may do has led plaintiff to employ a
private investigator to guard his home.

7

IV.
Defendants generally seek dismissal for failure to state a
claim under Fed. R. Civ. P. 8 and 10 because the Second Amended
Complaint continues to contain irrelevant allegations throughout,
fails to identify which defendant committed what specific act,
remains a shotgun pleading, and includes a request of relief that
asserts that punitive damages are not sought, but will be sought
by seeking to amend.

Defendants also seek dismissal under Rule 19

arguing that the Second Amended Complaint references Extreme Seal
Experience, LLC without naming the entity as a party or executing
service

on

same,

and

for

failure

to

joining

Extreme

Seal

Experience, LLC as an indispensable party in this case.
As a preliminary matter, the argument that Extreme Seal
Experience, LLC would suffer prejudice is rejected.

The argument

is dependent on the Court finding that a claim has been presented
against Extreme Seal Experience, LLC for millions in damages even
though the entity is not named and was not served in this case.
The Court finds insufficient allegations by plaintiff to support
a claim for relief against Extreme Seal Experience, LLC4, and
therefore no risk of adjudication as to Extreme Seal Experience,

Plaintiff identifies Extreme Seal Experience, and adds a
few facts of Extreme Seal Experience LLC sending plaintiff messages
but through its owners, the Shipleys. (Doc. #65, ¶¶ 3, 13-14, 21,
27, 29-31.) These allegations are insufficient to allege a claim
against the entity itself.
4

8

LLC’s liability.

The motion will be denied.

To the extent that

plaintiff believes that Extreme Seal Experience, LLC is a party to
this case, the motion is alternatively granted and Extreme Seal
Experience, LLC is dismissed with prejudice as to any applicable
allegations in the Second Amended Complaint.
Despite irrelevant tangents about non-parties, references to
a conspiracy or the aiding and abetting of a conspiracy, and a
discussion of a Peace Order issued out of Maryland, plaintiff did
comply with the core instructions of the Court’s Opinion and Order
by eliminating factual allegations imbedded in footnotes, and
correcting the incorporation of all paragraphs into each count for
relief.

Further, although plaintiff refers to both defendants

collectively as having committed all acts, sufficient notice of
the claims against the husband and wife exists at this stage of
the proceedings.

The motion will be denied under Rules 8 and 10.

Paragraph 63 will be stricken in its entirety.

Plaintiff

states that he “does not plead for punitive damages but shall make
a motion to amend the complaint. . . .”
no

further

amendments

would

be

The Court was clear that

entertained,

and

therefore

plaintiff is foreclosed from seeking punitive damages to the extent
he would be entitled.
V.
Specific to Count One, defendants argue that summary judgment
was granted against plaintiff in another case as to the same

9

photograph because plaintiff admitted that he was not the author
of the photograph, and therefore plaintiff fails to state a claim.
Further,

defendants

argue

both

collateral

estoppel

and

res

judicata. Defendants argue that the Court should otherwise decline
to exercise supplemental jurisdiction over the state claim of
intentional infliction of emotional distress.
Defendants rely on the ruling in Bernath v. Seavey, 2:15-cv358-FTM-38CM, which noted that certain requests for admissions
were deemed admitted due to plaintiff’s failure “to timely and
sufficiently

serve

objections

or

responses”,

including

an

admission that established that plaintiff is not the author of the
photograph as claimed.

(2:15-cv-358-FTM-38CM, Doc. #227, p. 7.)

Plaintiff also failed to provide a copyright registration number
or any evidence of a valid copyright.

(Id.)

Unfortunately, the

decision is outside of the four corners of the Second Amended
Complaint

and

therefore

cannot

be

considered

at

this

time.

However, upon motion for summary judgment, defendants may raise
the ruling and if plaintiff cannot in fact establish a valid
copyright or his claim is frivolous, he may be subject to dismissal
and possibly sanctions at that time.
denied.
Accordingly, it is now
ORDERED:

10

The motion to dismiss is

Defendants’ Motion to Dismiss the Second Amended Complaint
(Doc. #66) is DENIED however paragraph 63 regarding punitive
damages is stricken.

Defendants shall file an answer within

FOURTEEN (14) DAYS of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
September, 2017.

Copies:
Plaintiff
Counsel of record

11

15th

day of