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 American
Legion's (“The Legion”) Memorandum on
Requested Relief (Doc. 232); Mark Cameron
Seavey's Memorandum on Damages (Doc. 233); and
Plaintiff Daniel A. Bernath's Motion to File Complaint in
Volusia County Court, Florida, for Defendants' New
Attempt to Murder Plaintiff through Direct Violence and
through Inciting their Cult Member/Followers by Use of Hate
Speech of July/Aug 2017 (Doc. 260). Bernath has not
responded to The Legion's and Seavey's memoranda on
damages, creating an assumption their requested relief is not
opposed. Great Am. Assur. Co. v. Sanchuk, LLC, No.
8:10-cv-2568-T-33AEP, 2012 WL 195526, at *3 (M.D. Fla. Jan.
23, 2012). The Legion and Seavey responded in opposition to
Plaintiff's motion to file a new complaint. Doc.
16, 2015, Bernath initiated this action by filing a complaint
against Seavey. Doc. 1. On May 2, 2016, with leave
of Court, The Legion joined this action and filed its answer
and counterclaims against Bernath. Doc. 67. After
their lengthy disputes with Bernath in this and other courts,
Seavey and The Legion filed a motion to declare Bernath a
vexatious litigant on December 29, 2016. Doc. 109.
Based upon Bernath's history of vexatious litigation and
improper filings, the undersigned issued a Report and
Recommendation recommending Bernath be declared a vexatious
litigant. Doc. 255 at 15. The undersigned also
recommended imposing a pre-filing injunction. Id. On
September 5, 2017, United States District Judge Sheri Polster
Chappell entered an Opinion and Order (“Pre-Filing
Injunction Order”), accepting and adopting the Report
and Recommendation, declaring Bernath a vexatious litigant
and imposing “a pre-filing injunction requiring Bernath
to (a) obtain leave of court before filing any new actions in
this Court or any court in Florida; and (b) attach to future
complaints a list of all cases previously filed involving the
same, similar, or related cause of action.” Doc.
to filing the motion to declare Bernath a vexatious litigant,
The Legion and Seavey moved for summary judgment in March
2017. Docs. 188, 195. On May 18, 2017, Judge Chappell issued
an Opinion and Order (“Summary Judgment Order”)
granting The Legion's and Seavey's motions for
summary judgment on all claims in their entirety. Doc.
227. In their motions for summary judgment, The Legion
and Seavey requested awards of various damages,
attorney's fees and costs, permanent injunctions and
sanctions against Bernath. Docs. 188 at 30, 195 at 33. Judge
Chappell directed The Legion and Seavey to provide additional
briefing on the appropriate type and amount of damages sought
and allowed Bernath an opportunity to respond to their
briefs. Doc. 227 at 17, 28. Judge Chappell withheld
an entry of final judgment pending a determination of
damages. Doc. 227 at 28-29. On May 25, 2017, The
Legion and Seavey filed memoranda on damages. Docs. 232, 233.
The undersigned will address the damages and injunctions
sought by Seavy and The Legion individually.
The Legion's and Seavey's Memoranda on Damages (Docs.
initial matter, Seavey and The Legion request to enjoin
Bernath from filing any action against Seavey, The Legion or
its affiliates absent leave of Court. Docs. 232 at 1-4, 233
at 2-3. This request is moot in light of the Pre-Filing
Injunction Order. Doc. 259 at 3. The undersigned
will proceed to address other requested damages and
injunctions. Docs. 232, 233.
The Legion's request for permanent injunction and its
costs and fees and Seavey's request for his
attorney's costs and fees associated with the
parties' copyright infringement claims
Chappell granted summary judgment in favor of The Legion on
Bernath's copyright infringement claim against The Legion
and The Legion's counterclaim for declaratory judgment.
Doc. 227 at 17-20. Judge Chappell held Bernath is
not a valid owner of the copyright at issue. Doc. 227 at
19-20. The Legion also asserted a copyright infringement
counterclaim, alleging Bernath infringed on its valid
copyright of The Legion's emblem. Doc. 227 at
26-28. Judge Chappell granted summary judgment in favor
of The Legion on this count, holding Bernath infringed upon
The Legion's copyright. Doc. 227 at 28. The
Legion seeks a permanent injunction prohibiting Bernath from
using, displaying or publishing its emblem in any form or
medium and an award of attorney's fees and costs incurred
in defending against Bernath's copyright infringement
claim and prosecuting its own claim. Doc. 232 at
remedies of copyright infringement, a federal court may
“grant temporary and final injunctions on such terms as
it may deem reasonable to prevent or restrain infringement of
a copyright.” 17 U.S.C. § 502(a). Although
“a permanent injunction does not automatically issue
upon a finding of copyright infringement, ” it is
within the court's discretion to issue a permanent
injunction. Peter Letterese & Assocs., Inc.
v. World Inst. of Scientology Enters., 533 F.3d 1287,
1323 (11th Cir. 2008). To merit a permanent injunction, a
party seeking a permanent injunction must demonstrate four
(1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that
the public interest would not be disserved by a permanent
eBay Inc. v. MercExchange, L.L.C., 547 U.S.
388, 391 (2006).
the undersigned recommends The Legion has satisfied all four
factors. Doc. 232 at 5; see Id. The Legion
has suffered irreparable harm from Bernath's misuse of
The Legion's emblem through his websites and social media
because Bernath's improper use affected the integrity of
the emblem and the organization. Doc. 232 at 5. The
Court's finding that Bernath continued to use the emblem
without authorization, even after receiving the notice of his
improper use, shows the inadequacy of legal remedies and,
considering the balance of hardships between The Legion and
Bernath, the necessity of a remedy in equity. Docs. 227 at
27, 232 at 5. Protecting The Legions' copyright would not
disserve the public interest by preserving The Legions'
legal interests and preventing public confusion about The
Legion's emblem and identity. Doc. 232 at 5.
Accordingly, the undersigned recommends issuing a permanent
injunction prohibiting Bernath from using, displaying or
publishing its emblem in any form or medium. See17
U.S.C. § 502(a); Peter Letterese, 533 F.3d at
Legion further seeks an award of attorney's fees and
costs in the amount of $337, 870.00. Doc. 232 at 6. The
Legion has attached an itemization of time confirming 401.80
hours of attorney work expended at an hourly rate of $450.00;
173.60 hours of attorney work at an hourly rate of $250.00;
284.10 hours of attorney work expended at an hourly rate of
$350.00; and 91.5 hours of paralegal work expended at a rate
of $150.00. Docs. 232-7 at 4-25, 32-35; 232-8 at 5-41, 50-54.
another remedy for copyright infringement, a federal court
“in its discretion may allow the recovery of full costs
by or against any party other than the United States or an
officer thereof. Except as otherwise provided by this title,
the court may also award a reasonable attorney's fee to
the prevailing party as part of the costs.” 17 U.S.C.
§ 505. To grant or deny fees under the statute, the
court must weigh relevant factors and exercise its
discretion. MiTek Holdings, Inc. v. Arce Eng'g Co.,
Inc., 198 F.3d 840, 842 (11th Cir. 1999). If the court
has weighed the relevant factors, “[the appellate
court] will not question the [trial court']s decision to
grant or deny fees absent an abuse of that discretion.”
Id. (internal quotation marks omitted). The relevant
factors include “frivolousness, motivation, objective
unreasonableness (both in the factual and in the legal
components of the case) and the need in particular
circumstances to advance considerations of compensation and
deterrence.” Id. (internal quotation marks and
Judge Chappell held Bernath failed “to produce evidence
to support his claim or defenses” and also to
“establish any genuine issues of material fact.”
Doc. 227 at 28. Judge Chappell further declared
Bernath a vexatious litigant, finding he “has a history
of vexatious and duplicative litigation within this lawsuit,
” and has forced this Court and Defendants to expend
considerable time and resources in addressing his numerous
frivolous pro se filings. Docs. 255 at 9, 13; 259 at
2-3. Accordingly, the relevant factors weigh in favor of
granting The Legion's request for attorney's fees.
See MiTek Holdings, 198 F.3d at 842. Thus,
the undersigned recommends granting The Legion's request
for an award of attorney's fees and costs. See17
U.S.C. § 505; MiTek Holdings, 198 F.3d at 842.
in assessing the reasonableness of a fee, the court examines:
1) the time and labor required; 2) the novelty and difficulty
of the questions; 3) the skill requisite to perform the legal
service properly; 4) the preclusion of other employment by
the attorney due to the acceptance of the case; 5) the
customary fee; 6) whether the fee is fixed or contingent; 7)
time limitations imposed by the client or the circumstances;
8) the amount involved and the results obtained; 9) the
experience, reputation and ability of the attorneys; 10) the
“undesireability” of the case; 11) the nature and
length of the professional relationship with the client; and
12) awards in similar cases.
Pronman v. Styles, 676 F. App'x 846, 849 (11th
Cir. 2017) (citing Cable/Home Commc'n Corp.
v. Network Prods. Inc., 902 F.2d 829, 853 n.37 (11th
Cir. 1990)). Given the length of time this case has been
pending, Bernath's numerous filings and the frivolity of
his claims leading to the declaration of him as a vexatious
litigant, the undersigned recommends the requested fees and
costs are reasonable. Doc. 232 at 6;
see id. Accordingly, the undersigned
recommends granting The Legion's request for an award of
attorney's fees and costs in the amount of $337, 870.00.
Judge Chappell granted summary judgment in favor of Seavey on
Bernath's copyright claim, finding Bernath's First
Amended Complaint and response to Seavey's motion for
summary judgment were “a combination of disjointed
narrative and conclusory statements with a lack of
evidentiary support.” Doc. 227 at 8, 17.
Seavey seeks an award of attorney's fees and costs in the
amount of $124, 652.50 associated with defending against
Bernath's copyright infringement claim. Doc. 233
at 3. For the same reasons supporting The
Legion's award of attorney's fees and costs, the
undersigned recommends awarding attorney's fees and costs
of $124, 652.50 in favor of Seavey. Docs. 233 at 3, 233-2 at
5-14, 233-3 at 4-23.
The Legion's request for an injunction, an order of
transfer and its costs and fees on its cybersquatting
Chappell held Bernath registered in bad faith the domain
names, www.americanlegion.co, and www.americanlegion.exposed,
in violation of The Legion's trademarks, and granted
summary judgment in favor of The Legion on its cybersquatting
counterclaim against Bernath. Doc. 227 at 22-26. The
Legion seeks a permanent injunction enjoining Bernath from
registering or maintaining any domain name bearing
“americanlegion, ” or the names of The
Legion's employees or affiliates. D ...