Bernath v. The American Legion et al
Filing
76
ORDER. Plaintiff's Complaint 1 is dismissed without prejudice. Accordingly, Doc. #24, Doc. #42, Doc. #67 are denied as moot. Plaintiff's Motion to Conduct Jurisdictional Discovery 73 is denied. Plaintiff shall have up to and including November 4, 2016 to file an amended complaint in accordance with this Order. Failure to timely file an amended complaint will result in this matter being closed. Signed by Judge Sheri Polster Chappell on 10/24/2016. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL A. BERNATH,
Plaintiff,
v.
Case No: 2:16-cv-596-FtM-99MRM
THE AMERICAN LEGION, DON
SHIPLEY, DIANE SHIPLEY,
EXTREME SEAL EXPERIENCE
LLC, MARK CAMERON SEAVEY,
TERRENCE B. HOEY, SCOTT
HUGHES, JONN LILYEA and
SPARKS,
Defendants.
/
ORDER1
This matter comes before the Court on review of the Complaint of Plaintiff pro se
Daniel A. Bernath (Bernath) (Doc. #1) filed on August 1, 2016. Plaintiff Bernath initiated
this action against Defendants based on diversity jurisdiction and filed a 90-page, fifteencount Complaint (Doc. #1), purporting to allege causes of action for:
Count I – Intentional Infliction of Emotional Distress against all Defendants
Count II – Civil Assault/Attempted Murder by Seavey and his gang members
against all Defendants
Count III – Identify theft, intentional criminal acts by Mark Seavey with civil remedy
against all Defendants
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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.
Count IV – Invasion of Privacy against all Defendants
Count V – Assault against all Defendants
Count VI – Using Plaintiff’s image and voice, etc without payment, Invasion of
Privacy misappropriation Fla. Stat. §§ 934.03, 934.10, 540.08 against all
Defendants
Count VII – Invasion of Privacy, intrusion against all Defendants
Count VIII – Invasion of Privacy, publication of private facts against all Defendants
Count IX – Sexual cyber harassment, Fla. Stat. § 784.049 against all Defendants
Count X – Defamation against all Defendants
Count XI – Negligence per se against all Defendants
Count XII – Property damage against all Defendants
Count XIII – Illegal recording of telephone communication of Plaintiff against all
Defendants, Fla. Stat. §§ 934.03, 934.10
Count XIV – Trespass to Real Property against all Defendants
Count XV – Hate Crime with civil remedy against disabled and advanced
aged/over 65 year old combat zone veteran, mental disabled, physical disabled,
Fla. Stat. § 775.0863(2)
And although not numbered counts, Plaintiff also alleges burglary and sabotage against
Defendants, as well as negligence by the Lee County Port Authority and the Port Authority
Police. Furthermore, the Complaint seeks forfeiture of property in Indiana, New York,
Virginia, and West Virginia (Doc. #1 at pp.1-2), and the caption states that it contains
causes of action for Domestic Terror.
Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction and are obligated to inquire about
jurisdiction sua sponte whenever it may be lacking. See Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,
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410 (11th Cir. 1999) (citations omitted). Claims properly brought in federal court pursuant
to diversity jurisdiction contain matters where the parties are completely diverse with
regard to citizenship and where the amount in controversy exceeds 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). In an action filed directly in federal court,
plaintiff bears the burden of adequately pleading, and ultimately proving, jurisdiction. King
v. Cessna Aircraft Co., 505 F.3d 1160, 1171 (11th Cir. 2007).
Here, Bernath failed to properly indicate Defendant’s Extreme Seal Experience
LLC’s citizenship. Instead, Plaintiff merely states it “is a Virginia Corporation.” (Doc. #1,
at ¶15). A limited liability company is a citizen of every state in which one of its members
is located. Moreno v. Breitburn Florida, LLC, No. 2:09-cv-566-FtM-29DNF, 2011 WL
2293124, at *1 (M.D. Fla. June 9, 2011) (citing Rolling Greens MHP, L.P. v. Comcast
SCH Holdings, LLC, 374 F.3d 1020 (11th Cir. 2004)).
Plaintiff fails to allege the
citizenship of each of Extreme Seal Experience’s members. Thus, the Court is not
satisfied that it has federal jurisdiction to facilitate this case. The Complaint (Doc. #1) will
be dismissed without prejudice and the Court will allow Plaintiff a period of time to
establish the Court’s jurisdiction. Failure to do so will result in dismissal of this action.2
2
The Court finds no plausible basis upon which Plaintiff asserts federal question jurisdiction.
3
Failure to State a Claim
The Court also takes the opportunity to inform Plaintiff that even if he properly
alleges diversity jurisdiction, continuing to plead an amendment in the same manner as
the Complaint is will result in dismissal for failure to state a claim.3 To survive dismissal
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.
3
The Complaint in this lawsuit largely duplicates, in part, causes of action and factual allegations in a June
16, 2015 First Amended Complaint against Defendant Seavey filed by Bernath in an earlier-filed case in
this Court, Case No. 2:15-cv-00358-FtM-99CM.
4
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).
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. The
pleadings of a pro se litigant are to be held to less stringent standards than those drafted
by an attorney. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
However, the pro se litigant must still meet minimal pleading standards.
In Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524
(11th Cir. 1983), the court held that sua sponte dismissals are prohibited where: (1) the
defendant has not filed an answer and, thus, the plaintiff still has a right under Rule 15(a)
to amend his or her complaint; (2) the plaintiff's claim is brought in good faith and is not
vexatious or patently frivolous; and (3) the district court has yet to provide plaintiff with
notice of its intent to dismiss the complaint and an opportunity to respond. 695 F.2d at
527; cf. Neitzke v. Williams, 490 U.S. 319, 330 n. 8, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989) (declining to decide whether a district court has inherent authority to sua sponte
dismiss a complaint under Rule 12(b)(6)). The Court in Wometco distinguished the
complaint in that case from those that “are so patently lacking in merit as to be frivolous.”
Id. at 526 n.3. The Court suggested in dicta that district courts have the inherent power
to sua sponte dismiss such frivolous suits without giving notice to the parties. Id.; see
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also Davis v. Kvalheim, 261 Fed. App’x 231, 234 (11th Cir. 2008) (affirming district courts’
inherent authority to dismiss frivolous claims sua sponte). Other courts have also taken
the position that frivolous claims may be dismissed prior to the filing of an answer and
without notice to the parties. See, e.g., Tyler v. Carter, 151 F.R.D. 537, 540 (S.D.N.Y.
1993), affirmed 41 F.3d 1500 (2nd Cir. 1994) (“A plaintiff asserting fantastic or delusional
claims should not, by payment of a filing fee, obtain a license to consume limited judicial
resources and put defendants to effort and expense.”); Slangal v. Getzin, 148 F.R.D. 691,
695 (D. Neb. 1993). See also Jackson v. Farmers Ins. Grp./Fire Ins. Exch., 391 Fed.
App'x 854, 856 (11th Cir. 2010) (per curiam) (defining a frivolous case as one containing
“clearly baseless” factual allegations or one based on an “indisputably meritless” legal
theory (citation omitted)).
Construing the Complaint liberally in light of Bernath’s pro se status, the Court has
examined the plausibility of the claims asserted by Plaintiff. Plaintiff's Complaint in this
instance is a rambling, disjointed pleading with regard to his claims against Defendants.
Plaintiff strings together multiple facts addressing various topics that are impertinent,
scandalous, and immaterial to the causes of action Plaintiff is attempting to allege. (Doc.
#1). At the beginning, Plaintiff states causes of action, in bold, with no underlying facts
to support the causes of action. (Doc. #1 at 1-2). 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 decipher, Plaintiff attempts to allege
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elements for numerous common law causes of action, but without supporting facts, these
causes of action still fail pleading requirements. Beneath each heading are various
conclusory allegations regarding certain elements of the purported claims, but in every
instance Bernath fails to set forth allegations which comprise an entire, viable cause of
action. Despite the length of the Complaint, the allegations made by Bernath are neither
legally adequate nor specific enough to survive dismissal.
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 conclusions, and a formulaic recitation
of the elements will not do.”); McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980,
124 L.Ed.2d 21 (1993) (“[W]e have never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by those who proceed without
counsel.”); Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (per curiam) (“And
although we are to give liberal construction to the pleadings of pro se litigants, we
nevertheless have required them to conform to procedural rules.” (citation and internal
quotation marks omitted)).
Jurisdictional Discovery
The Court notes that Plaintiff has filed a Motion to Conduct Jurisdictional Discovery
and continue the Court’s decision on whether it will maintain jurisdiction until after the
discovery has taken place. (Doc. #73). The Eleventh Circuit recognizes a qualified right
to conduct jurisdictional discovery. Eaton v. Dorchester Development, Inc., 692 F.2d 727,
729 (11th Cir. 1982) (“jurisdictional discovery is not entirely discretionary . . . a court does
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not have discretion to grant or deny a request for jurisdictional discovery [when
jurisdictional facts are in dispute]). Rather, it is appropriate to speak in terms of a qualified
‘right’ to jurisdictional discovery when a court’s jurisdiction is genuinely in dispute.” See
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978). Specifically, “[i]f the
jurisdictional question is genuinely in dispute and the court cannot resolve the issue in the
early stages of the litigation . . . , then discovery will certainly be useful and may be
essential to the revelation of facts necessary to decide the issue.” Eaton, 692 F.2d at 730
n.7; see also Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997).
As the above precedent reflects, jurisdictional discovery is favored where there is a
genuine dispute concerning jurisdictional facts; it is not an unconditional right that permits
a plaintiff to seek facts that would ultimately not support a showing of personal jurisdiction.
Because the Court finds that there are no relevant jurisdictional facts in dispute the
request for discovery is denied.
Conclusion
The Court is allowing Plaintiff an opportunity to amend his complaint to overcome
any deficiencies. Upon filing the Amended Complaint, the Court will sua sponte review it
to determine whether it complies with Federal Rule of Civil Procedure 12(b)(6), which it
has the inherent authority to do. The Court informs Plaintiff that the inflammatory nature
of his filings (in spite of the fact that he was once a licensed attorney) have little relevance
to the causes of action he is attempting to allege.4 The Court will not provide Plaintiff
further opportunities to engage in such tactics. Plaintiff is informed that failure to
4
For example, Plaintiff states in his Complaint (Doc. #1) that Defendants have tormented six veterans to
self-murder (p. 29), that Seavey had sexually threatened a congressional employee (p. 65), and that Seavey
is party of a gang of trained government operatives that engage in domestic terrorism (p. 72).
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comply with the above will result in dismissal of this case with prejudice and the
case being closed.
Accordingly, it is now
ORDERED:
(1) Plaintiff’s Complaint (Doc. #1) is dismissed without prejudice.
(2) Accordingly, Doc. #24, Doc. #42, Doc. #67 are denied as moot.
(3) Plaintif’s Motion to Conduct Jurisdictional Discovery (Doc. #73) is denied.
(4) Plaintiff shall have up to and including November 4, 2016 to file an amended
complaint in accordance with this Order. Failure to timely file an amended
complaint will result in this matter being closed.
DONE and ORDERED in Fort Myers, Florida this 23rd day of October, 2016.
Copies: All Parties of Record
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