United States District Court, M.D. Florida, Fort Myers Division
DANIEL A. BERNATH, Plaintiff,
DON SHIPLEY, CAROL DIANE BLAZER SHIPLEY, and EXTREME SEAL EXPERIENCE, LLC, Defendants.
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.
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.
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,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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.
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
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.
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.
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. 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.
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.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.
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.
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