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Bernath v. Shipley

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

September 15, 2017




         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. (Doc. #70.) 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.


         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). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 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. “Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” 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 they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.


         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).


         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.

         Plaintiff also generally alleges that defendants each published to their 104, 284 followers that they had 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 of himself, which was originally published on January 1, 2004, and registered with 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 ...

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