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Bernath v. Seavey

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

December 11, 2017

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

          PRE-SUIT INJUNCTION ORDER [1]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on review of the file. The Court has declared Bernath to be a vexatious litigant because of his excessive filing and repeated failures to comply with the Federal Rules of Civil Procedure, the Middle District of Florida Local Rules, and the Court's orders. (Doc. 259; Doc. 255). It also has granted (and modified) a pre-suit injunction against Bernath for filing any new suits in the United States District Court for the Middle District of Florida. (Doc. 259; Doc. 295). For clarity's sake, this Pre-Suit Injunction Order reiterates the procedures for Bernath, the Clerk's Office, and the Court to follow if Bernath seeks to file a new complaint and other initiating document in this Court.[2]

         Accordingly, it is ORDERED:

         (1) The Clerk of Court shall open a miscellaneous case titled, “In re: Daniel A. Bernath” that contains this Order as the first docket entry.

         (2) Bernath may not file, as a pro se litigant, [3] any new lawsuit, action, proceeding, writ, or other matter against Mark Seavey and The American Legion in the United States District Court for the Middle District of Florida without first obtaining leave of court. In moving for leave, Bernath must adhere to these procedures:

a. file a motion titled, “Motion Seeking Leave to File a Complaint”;
b. attach as “Exhibit 1” to the motion the proposed new complaint;
c. attach as “Exhibit 2” a copy of this Order; and
d. attach as “Exhibit 3” a sworn affidavit from Bernath certifying that (1) the complaint raises a new issue that has never been previously raised by him in this or any other court; (2) the claim or issue is not frivolous, vexatious, or harassing; and (3) the document is not filed in bad faith.

         (3) If Bernath does not follow the above procedures, the Clerk is DIRECTED to reject any new complaint and make an entry on the docket in the miscellaneous case file to reflect that a new complaint was rejected and returned for failure to comply with the pre-filing screening procedures.

         (4) If Bernath meets the pre-filing procedures, the Clerk is DIRECTED to forward his motion and exhibits to the senior Magistrate Judge in the applicable division for review. The Magistrate Judge must decide whether the complaint has arguable merit; that is, a material basis in law and fact. No abusive, frivolous, scandalous, or otherwise impertinent complaint will be permitted.

a. If the action is arguably meritorious, the Magistrate Judge shall issue an order so stating and directing the Clerk to file the complaint for random assignment. The Magistrate Judge's order shall be docketed with the complaint in the new civil case.
b. If, however, the Magistrate Judge's preliminary review determines that the complaint has no arguable merit, the Magistrate Judge shall enter an order denying the motion, in which event the complaint will not be filed with the Court. Instead, the Clerk shall return the motion and exhibits to Bernath, after making a copy for the Court. The Magistrate Judge's order and the copy of the motion and exhibits must be filed in the miscellaneous case.

         (5) Bernath's failure to comply with the terms of this Order will be sufficient grounds to deny any motion for leave to file, and may be considered an act of ...


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