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Bernath v. Seavey

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

November 1, 2017

DANIEL A. BERNATH, Plaintiff,
v.
MARK CAMERON SEAVEY, Defendant.

          REPORT AND RECOMMENDATION [1]

          CAROL MIRANDO UNITED STATES MAGISTRATE JUDGE

         This 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).[2] 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. 261.

         I. Background

         On June 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. 259.

         Subsequent 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.

         II. The Legion's and Seavey's Memoranda on Damages (Docs. 232, 233)

         As an 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.

         a. 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

         Judge 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 5-6.

         As 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 factors:

(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 injunction.

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

         Here, 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 1323.

         The Legion further seeks an award of attorney's fees and costs in the amount of $337, 870.00.[3] 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.

         As 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 citation omitted).

         Here, 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.

         Next, 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.

         Similarly, 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[4] 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.

         b. The Legion's request for an injunction, an order of transfer and its costs and fees on its cybersquatting claims

         Judge 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 ...


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