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Bernath v. Seavey

United States District Court, M.D. Florida, Fort Myers Division

May 8, 2017



          CAROL MIRANDO United States Magistrate Judge.

         This matter comes before the Court upon review of the following:

         (1) 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 (Doc. 123);

         (2) Plaintiff's Response of Plaintiff's to Order to Show Cause (Doc. 156) filed on February 17, 2017;

         (3) 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);

         (4) 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.

         (5) 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, 2017.

         I. Background

         Pro 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.

         The factual allegations leading to Plaintiff's complaint stem from a blog maintained by Seavey, (, 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.

         In his 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 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.

         The 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 and without The Legion's consent. Id. at 26 ¶ 61.

         The 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 at 5-6.

         As for 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).

         Thus, 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 ...

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