United States District Court, M.D. Florida, Fort Myers Division
DANIEL A. BERNATH, Plaintiff,
MARK CAMERON SEAVEY, Defendant.
MIRANDO United States Magistrate Judge.
matter comes before the Court upon review of the following:
Mark Cameron Seavey's Second Motion to Compel Responses
to Discovery and Incorporated Memorandum of Law
(“Seavey's Second Motion to Compel, ” Doc.
114) filed on January 16, 2017, and Plaintiff's Response
Plaintiff's Response of Plaintiff's to Order to Show
Cause (Doc. 156) filed on February 17, 2017;
Plaintiff's Motion to be Relieved of Admissions because
there is good-cause Because of mental deficit of Plaintiff
and as there is no prejudice to Defendants (“Motion to
Withdraw Admissions, ” Doc. 154) filed on February 17,
2017, and Defendants' response (Doc. 174);
Plaintiff's Motion to Exceed Page Limit to show Plaintiff
has provided 400 pages of evidence days before deposition of
Plaintiff (“Motion to Exceed Page Limit, ” Doc.
168) filed on February 28, 2017.
Plaintiff's Motion to File Reply Brief to Set Aside
DEEMED ADMITTED As pro hac vice attorney John D. Mason
personally attack me and Continues to make new false
statements to this Court In their Opposition (“Motion
to File Reply Brief, ” Doc. 192) filed on March 17,
Se Plaintiff Daniel A. Bernath (“Plaintiff”
or “Bernath”) initiated this action by filing a
complaint alleging copyright infringement against Defendant
Mark Cameron Seavey (“Seavey”) on June 16, 2015,
to which Seavey responded on July 8, 2015 with an answer,
affirmative defenses, and counterclaims. Docs. 1; 10.
Plaintiff subsequently amended his complaint to add a claim
of intentional infliction of emotional distress, to which
Seavey responded on July 24, 2015 with an answer, affirmative
defenses, and first amended counterclaims of
libel/defamation, and defamation per se. Docs. 20;
31. With the Court's permission, The American Legion
(“The Legion”) intervened on May 2, 2016, and
filed its answer and counterclaims against Plaintiff on May
11, 2016. Docs. 66; 69. On May 11, 2016, Plaintiff filed his
“cross-complaint” against The Legion, which he
amended on October 11, 2016 after the Court dismissed his
initial cross-complaint for failure to comply with Rules 8
and 10 of the Federal Rules of Civil Procedure. Docs. 71; 88;
93. On October 31, 2016, The Legion filed its answer and
affirmative defenses to Plaintiff's amended
cross-complaint. Doc. 97.
factual allegations leading to Plaintiff's complaint stem
from a blog maintained by Seavey,
(http://thisainthell.us/), in which, Plaintiff
alleges, Seavey published one of Plaintiff's copyrighted
photographs without Plaintiff's consent. Docs. 20 at 2-3
¶¶ 9-12; 31 at 3 ¶ 11. Plaintiff also alleges
that “Seavey's publication hosts child pornography
and advocates child pornography; torments veterans of the
United States military . . . [, and that] Seavey has been
found guilty of sexual harassment” by using
Seavey's blog. Doc. 20 ¶ 13. Plaintiff alleges
Seavey has a “terrorist group, ” is “the
leader of a terrorist gang, ” has an intent “to
destroy [P]laintiff, ” has engaged in a two-year
campaign to cause Plaintiff to “self-murder, ”
and so forth. See, e.g., Doc. 20 at 3-4 ¶¶
14-16. Plaintiff further alleges Seavey threatened to murder
Plaintiff, and that Seavey, or someone under Seavey's
command and control, has visited Plaintiff's residence.
Id. at 8 ¶ 23.
answer and counterclaims, Seavey asserts that he is an
employee of the national headquarters of The Legion, a
federally chartered corporation. Doc. 31 at 14 ¶ 1.
Seavey claims he writes articles of journalism, such as
“articles about examples of Stolen Valor” for the
website http:thisainthell.us. Id. ¶ 7. Seavey
admits that an article was published about Plaintiff alleging
that Plaintiff had committed “Stolen Valor.” Doc.
31 at 5 ¶ 20. Seavey asserts that “Bernath was
upset about that article . . . and followup articles about
him, and began a one and a half year campaign of threats and
litigation and other actions” directed at Seavey and
The Legion, among others. Id. at 15 ¶ 9.
Seavey's counterclaims against Plaintiff alleging
libel/defamation and defamation per se rest in part
upon the factual allegations raised in Plaintiff's
amended complaint, such as those relating to child
pornography and sexual harassment. Doc. 31 at 23 ¶ 23.
Legion echoes many of the factual allegations of Seavey.
See Docs. 31; 69. The Legion has filed counterclaims
against Bernath for declaratory judgment on the copyright
infringement and intentional infliction of emotional distress
claims at issue in this case, for libel/defamation,
defamation per se, copyright infringement over The
Legion's emblem, and for cyber-squatting. Doc. 69 at
20-29. The cybersquatting count is based on alleged
registrations by Plaintiff of the domain names
www.americanlegion.exposed without The Legion's
consent. Id. at 26 ¶ 61.
Court issued its first Case Management and Scheduling Order
on December 7, 2015. Doc. 62. The Court set a deadline of
December 20, 2015 for the parties to provide each other the
mandatory initial disclosures as required by Rule 26(a)(1) of
the Federal Rules of Civil Procedure. Id. at 1. On
August 8, 2016, Seavey filed a Motion to Compel Initial
Disclosures and Responses to Discovery. Doc. 78. Similarly,
on November 15, 2016, The Legion filed a Motion to Compel
Responses to Discovery. Doc. 98. On December 1, 2016, after
considering Defendants' motions to compel,
Plaintiff's responses thereto, and Defendants'
replies, the Court issued an order (the “Discovery
Order”). Doc. 101. The Court found that Plaintiff
failed to provide the mandatory initial disclosures in
compliance with Rules 26(a)(1) and 26(g)(1), and,
consequently, with the Court's scheduling order. Doc. 101
other discovery requests, on April 26, 2016, Seavey served
Plaintiff a set of combined discovery requests, containing
ten interrogatories, ten requests for production of
documents, and ten requests for admission (collectively
“Seavey's discovery requests”). Doc. 78-3. In
the Discovery Order, the Court found that Plaintiff failed to
properly serve discovery responses to Seavey's discovery
requests, and ordered that any possible objections to
Seavey's discovery requests, except the requests for
admission, are deemed waived. Doc. 101 at 12-13. Regarding
Seavey's requests for admission, the Court found
technical defects in the responses but did not deem them
admitted. Id. The Court noted that Plaintiff had
denied nine of the ten requests, electronically signed the
document denying those requests, and e-mailed the document to
opposing counsel within thirty days of service of the
requests. Id. The Court found that although
Plaintiff had failed to properly serve his responses to the
requests for admission in accordance with Rule 5(b), the best
and most fair course of action was to provide Plaintiff an
opportunity to serve the responses in accordance with Rule
5(b) so as to avoid unfair surprise. Id. at 13
(citing Woods v. Stewart, 171 F.2d 544 (5th Cir.
1948)) (where failure by a party to respond properly to
request for admissions is not deliberate, and defects in the
responses are merely technical, the party should be given a
reasonable time to file an amended response).
the Court ordered the following:
By December 12, 2016, Plaintiff shall serve, in the manner
provided by Federal Rule of Civil Procedure 5(b), responses
to Mark Seavey's ten Interrogatories and ten Requests for
Production (Doc. 78-3) in compliance with Rules 33 and 34 of
the Federal Rules of Civil Procedure. Because the Court
orders that Plaintiff has waived all objections, his
responses must not include any objections.
Plaintiff shall have up to and including December 12, 2016 to
serve his responses to Seavey's Requests for Admission
(Doc. 78-3) to all ...