Case 2:15-cv-00358-SPC-CM Document 303 Filed 12/27/17 Page 1 of 10 PageID 9942
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`FORT MYERS DIVISION
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`DANIEL A. BERNATH,
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`v.
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`MARK CAMERON SEAVEY,
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`Plaintiff,
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`Defendant.
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`Case No: 2:15-cv-358-FtM-38CM
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`/
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`AMENDED1 OPINION AND ORDER2
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`This matter comes before the Court on United States Magistrate Judge Carol
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`Mirando’s Report and Recommendation, which addresses Defendant American Legion’s
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`Memorandum on Requested Relief (Doc. 232); Defendant Mark Seavey’s Memorandum
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`on Damages (Doc. 233); and pro se Plaintiff Daniel Bernath’s Motion to File Complaint in
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`state court (Doc. 260).3 (Doc. 270). Judge Mirando’s recommendations are twofold: (1)
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`award Defendants injunctive and monetary damages because of Bernath’s copyright
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`1 The Court amends its Opinion and Order (Doc. 296) only to correct two typographical
`errors to the domain name “americanlegion” on the third and seventh pages. With the
`exception of those corrections, the Opinion and Order remains unchanged.
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` 2
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` Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or
`websites. These hyperlinks are provided only for users’ convenience. Users are
`cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By
`allowing hyperlinks to other websites, this Court does not endorse, recommend, approve,
`or guarantee any third parties or the services or products they provide on their websites.
`Likewise, the Court has no agreements with any of these third parties or their websites.
`The Court accepts no responsibility for the availability or functionality of any hyperlink.
`Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
`not affect the opinion of the Court.
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` 3
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` Although Bernath is currently incarcerated at Hampton Road Regional Jail in Virginia
`(Doc. 283), he has made several objections to the Report and Recommendation.
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`Case 2:15-cv-00358-SPC-CM Document 303 Filed 12/27/17 Page 2 of 10 PageID 9943
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`infringement, defamatory statements, and other actions; and (2) deny Bernath’s motion
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`to file new complaints against Defendants. (Doc. 270 at 19-21). Bernath has submitted
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`over a dozen filings that the Court construes as objections to the Report and
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`Recommendation.4 (Doc. 273; Doc. 275; Doc. 277; Doc. 278; Doc. 280; Doc. 281; Doc.
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`282; Doc. 285; Doc. 287; Doc. 288; Doc. 289; Doc. 290; Doc. 291; Doc. 292; Doc. 293;
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`Doc. 294). Defendants object only to Judge Mirando’s recommendation to deny as moot
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`their request for a nationwide pre-suit injunction against Bernath.5 (Doc. 284). The
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`Report and Recommendation is ripe for review.
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`BACKGROUND
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`The full factual background is set forth in the Report and Recommendation (Doc.
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`260) and the Order granting summary judgment for Defendants (Doc. 227). Briefly, this
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`matter involves claims and counterclaims for copyright infringement, intentional infliction
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`of emotional distress, cybersquatting, and defamation. The Court granted Legion’s and
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`Seavey’s motions for summary judgment on all claims and counterclaims and directed
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`the parties to provide supplemental briefing on their requested damages. (Doc. 227).
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`Independent of summary judgment, the Court granted Defendants’ motion to
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`declare Bernath a vexatious litigant because of his excessive filings and repeated failures
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`to comply with this Court’s orders and procedural rules. (Doc. 259). In that vein, it
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`4 The Court need not restate the titles of Bernath’s filings because the titles do not
`necessarily align with the relief sought.
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` Defendants’ objection is alternative relief to Judge Mirando reconsidering her
`recommendation on a nationwide pre-suit injunction. (Doc. 284). To secure a swift
`decision and to conserve judicial resources, the Court will handle the alternative relief and
`address the matter as an objection to the Report and Recommendation.
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`2
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`Case 2:15-cv-00358-SPC-CM Document 303 Filed 12/27/17 Page 3 of 10 PageID 9944
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`imposed “a pre-filing injunction requiring Bernath to (a) obtain leave of court before filing
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`any new actions in this Court or any court in Florida; and (b) attach to future complaints
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`a list of all cases previously filed involving the same, similar, or related cause of action.”
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`(Doc. 259). Since then, Bernath has requested to file new complaints against Legion and
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`others in state court. (Doc. 260).
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`The Report and Recommendation addresses both Bernath’s motion to file new
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`complaints and Defendants’ supplemental briefing on damages.6 It specifically
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`recommends:
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`•
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`•
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`issue a permanent injunction prohibiting Bernath from using, displaying, or
`publishing Legion’s emblem in any form or medium;
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`issue a permanent injunction enjoining Bernath from registering or maintaining
`any domain name bearing “americanlegion” or the names of Legion’s
`employees or affiliates;
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`• order Bernath to transfer all of his domain names bearing Legion or affiliated
`names to Legion;
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`issue a permanent injunction prohibiting Bernath from writing, publishing, or
`disseminating any defamatory material or defamatory information about Legion
`or any of its employees or affiliates in any medium;
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`• award Legion general damages of $100,000.00, special damages of
`$80,000.00, and punitive damages of $100,000.00;
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`• award Legion attorneys’ fees and costs for $384,820.00;
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`• award Seavey general damages of $500,000.00 and special damages of
`$135,000.00;
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`• award Seavey attorneys’ fees and costs for $195,620.00;
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`6 The Report and Recommendation states, “Bernath has not responded to The Legion’s
`and Seavey’s memoranda on damages, creating an assumption their requested relief is
`not opposed.” (Doc. 270 at 1-2). Although Bernath filed a document titled, “Opposition
`to Summary Judgment Motion for damages by Mark Seavey Addition to Pin-Point rebuttal
`to Seavey affidavit,” (Doc. 245), a de novo review of that filing shows that it was non-
`responsive to the damages issue.
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`•
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`3
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`•
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`issue a permanent injunction prohibiting Bernath from writing, publishing,
`displaying, or disseminating any material, writing or other information about
`Seavey in any medium;
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`• deny Bernath’s Motion to File Complaint (Doc. 260); and
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`issue an order to show cause why Bernath should not be held in civil contempt
`for violating the Court’s pre-filing injunction order (Doc. 259).
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`STANDARD OF REVIEW
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`•
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`A district judge “may accept, reject, or modify in whole or in part, the findings or
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`recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district
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`judge “shall make a de novo determination of those portions of the report or specified
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`proposed findings or recommendations to which objection is made.” Id. And “[t]he judge
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`may also receive further evidence or recommit the matter to the magistrate judge with
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`instructions.” Id.
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`DISCUSSION
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`The Report and Recommendation addresses Defendants’ supplemental briefing
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`on damages and Bernath’s motion to file new complaints. The Court will address each in
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`turn.
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`A. Damages: Permanent injunctions, attorneys’ fees, costs, and other monetary
`awards
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`Because of Bernath’s pro se status, the Court has liberally considered all of his
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`post-Report and Recommendation filings. This was no small feat because Bernath’s
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`disjointed filings offer little information about the damages recommended. For instance,
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`Bernath continues to deny committing copyright infringement and making defamatory
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`statements about Defendants. He also claims to be an investigative journalist and
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`somehow immune from his actions. Bernath reiterates that Defendants are trying to
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`Case 2:15-cv-00358-SPC-CM Document 303 Filed 12/27/17 Page 5 of 10 PageID 9946
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`murder him, tormenting his family, and invading his home. And he accuses the
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`undersigned and Judge Mirando of bias and seeks recusal. Even the most favorable
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`reading of his filings does not make them valid objections. With one exception, the Court
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`adopts the Report and Recommendation on the permanent injunctions, attorneys’ fees
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`and costs awards, and monetary damages.
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`Judge Mirando recommends denying as moot Defendants’ request for a
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`nationwide pre-suit injunction against Bernath because the Court already granted such
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`relief for cases in this Court and other Florida courts. Defendants object to this
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`recommendation because it did not directly address their request for the all-forma,
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`nationwide injunction. (Doc. 284 at 3-4). Although the Court understands Defendants’
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`frustration with Bernath’s vexatious filings, it will not exercise its discretion to extend the
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`current pre-suit injunction nationwide. See Martin-Trigona v. Shaw, 986 F.2d 1384, 1387
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`(11th Cir. 1993) (stating courts have considerable discretion in fashioning such a pre-suit
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`injunction). This Court faces heavy dockets and scarce resources.7 It cannot divert
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`attention away from delivering justice to litigants in other pending cases to police
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`Bernath’s access to courts across the country. However, Bernath remains a vexatious
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`litigant and the Court stands by its decision to declare him as such.
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`In short, the Court adopts the Report and Recommendation on the permanent
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`injunctions, attorneys’ fees and costs awards, and monetary damages, but it denies
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`Defendants’ request for nationwide pre-suit injunctive relief against Bernath.
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`7 The undersigned has been the only active district court judge in the Fort Myers division
`since June 2015 and will likely to be so for the near future. This means the undersigned’s
`demanding trial calendar is rivaled only by its motions and case management obligations.
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`Case 2:15-cv-00358-SPC-CM Document 303 Filed 12/27/17 Page 6 of 10 PageID 9947
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`C. Bernath’s Motion to File Complaints in State Court
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`Next, Bernath moves the Court for leave to file new complaints against Legion and
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`others in Florida state courts. (Doc. 260; Doc. 260-1). He has filed the motion in this
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`case likely because of the Court’s pre-suit injunction Order. (Doc. 259). Defendants
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`oppose Bernath’s motion because he has not complied with the pre-suit injunction Order
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`for either complaint. (Doc. 261). The Report and Recommendation agrees with
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`Defendants and recommends that Bernath show cause why he should not be held in civil
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`contempt for his non-compliance. (Doc. 270).
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`After examining the file carefully and independently, the Court will not order
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`Bernath to show cause. It will also deny without prejudice his motion because it is not
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`applicable to this suit. In an abundance of caution, Bernath’s misfiling may not be his
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`fault, as the Court did not provide him (and the Clerk’s Office) guidance on how to proceed
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`with new complaints. For this reason, the Court will deny his request and modify its pre-
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`suit injunction Order (Doc. 259). Also, the Court has reconsidered its pre-suit injunction
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`Order and, for the same reasons that it will not extend the Order nationwide, the Court
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`will limit the pre-suit injunction to the Middle District of Florida only. If the modified pre-
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`suit injunction fails in curbing Bernanth’s abusive behavior, then the Court may consider
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`further remedial measures.
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`Accordingly, it is now
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`ORDERED:
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`(1) The Report and Recommendation (Doc. 270) is ACCEPTED and ADOPTED
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`in part.
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`6
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`Case 2:15-cv-00358-SPC-CM Document 303 Filed 12/27/17 Page 7 of 10 PageID 9948
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`a. Defendant American Legion’s Memorandum on Requested Relief (Doc.
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`232) and Defendant Mark Seavey’s Memorandum on Damages (Doc.
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`233) are GRANTED in part and DENIED in part. The Court thus
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`i. issues a permanent injunction prohibiting Plaintiff Daniel Bernath
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`from using, displaying, or publishing Legion’s emblem in any form
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`or medium;
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`ii. issues a permanent injunction enjoining Bernath from registering
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`or maintaining any domain name bearing “americanlegion” or the
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`names of Legion’s employees or affiliates;
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`iii. orders Bernath to transfer all of his domain names bearing Legion
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`or affiliated names to Legion;
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`iv. issues a permanent injunction prohibiting Bernath from writing,
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`publishing, or disseminating any defamatory material or
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`defamatory information about Legion or any of its employees or
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`affiliates in any medium;
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`v. issues a permanent injunction prohibiting Bernath from writing,
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`publishing, displaying, or disseminating any defamatory material,
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`writing or other information about Seavey in any medium;
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`vi. awards Legion general damages of $100,000.00, special
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`damages of $80,000.00, and punitive damages of $100,000.00;
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`vii. awards Legion attorneys’ fees and costs for $384,820.00;
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`viii. awards Seavey general damages of $500,000.00 and special
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`damages of $135,000.00; and
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`Case 2:15-cv-00358-SPC-CM Document 303 Filed 12/27/17 Page 8 of 10 PageID 9949
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`ix. awards Seavey attorneys’ fees and costs for $195,620.00.
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`b. Bernath’s Motion to File Complaint (Doc. 260) is DENIED without
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`prejudice.
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`(2) Paragraph three in the order clause of the pre-suit injunction Order (Doc. 259)
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`is MODIFIED and the following subsections REPLACE that paragraph:
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`a. The Clerk of Court shall open a miscellaneous case titled, “In re: Daniel
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`A. Bernath.
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`b. Bernath may not file, as a pro se litigant,8 any new lawsuit, action,
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`proceeding, writ, or other matter against Mark Seavey and The
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`American Legion in the United States District Court for the Middle District
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`of Florida without first obtaining leave of court. In moving for leave,
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`Bernath must adhere to these procedures:
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`i. file a motion titled, “Motion Seeking Leave to File a Complaint”;
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`ii. attach as “Exhibit 1” to the motion the proposed new complaint;
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`iii. attach as “Exhibit 2” a copy of the Court’s Pre-Suit Injunction
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`Order; and
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`iv. attach as “Exhibit 3” a sworn affidavit from Bernath certifying that
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`(1) the complaint raises a new issue that has never been
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`previously raised by him in this or any other court; (2) the claim
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`or issue is not frivolous, vexatious, or harassing; and (3) the
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`document is not filed in bad faith.
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`8 The pre-filing screening procedure will not apply if an attorney who is a member of good
`standing in the Middle District of Florida files a new complaint on Bernath’s behalf.
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`c. If Bernath does not follow the above procedures, the Clerk is DIRECTED
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`to reject any new complaint and make an entry on the docket in the
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`miscellaneous case file to reflect that a new complaint was rejected and
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`returned for failure to comply with the pre-filing screening procedures.
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`d. If Bernath meets the pre-filing procedures, the Clerk is DIRECTED to
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`forward his motion and attached exhibits to the senior Magistrate Judge
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`in the applicable division for review. The Magistrate Judge must decide
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`whether the complaint has arguable merit; that is, a material basis in law
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`and fact. No abusive, frivolous, scandalous, or otherwise impertinent
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`complaint will be permitted.
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`i. If the action is arguably meritorious, the Magistrate Judge shall
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`issue an order so stating and directing the Clerk to file the
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`complaint for random assignment. The Magistrate Judge’s order
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`shall be docketed with the complaint in the new civil case.
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`ii. If, however,
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`the Magistrate Judge’s preliminary
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`review
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`determines that the complaint has no arguable merit, the
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`Magistrate Judge shall enter an order denying the motion, in
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`which event the complaint will not be filed with the Court. Instead,
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`the Clerk shall return the motion and exhibits to Bernath, after
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`making a copy for the Court. The Magistrate Judge’s order and
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`the copy of the motion and exhibits must be filed in the
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`miscellaneous case.
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`Case 2:15-cv-00358-SPC-CM Document 303 Filed 12/27/17 Page 10 of 10 PageID 9951
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`e. Bernath’s failure to comply with the terms of this Order shall be sufficient
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`grounds to deny any motion for leave to file, and may be considered an
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`act of contempt for which Bernath may be sanctioned accordingly.
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`(3) The remedial measures imposed by this Order do not restrict, in any way, the
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`other judges’ authority to impose sanctions, if appropriate, in the cases Bernath
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`has already filed in this Court.
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`(4) Defendants’ Limited Request for Reconsideration on the Issue of Pre-Suit
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`Injunctive Relief; or, alternatively, Limited Objection to November 1, 2017
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`Report and Recommendation (Doc. 284) is DENIED.
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`(5) The Court OVERRULES and DENIES Bernath’s construed objections to the
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`Report and Recommendation. (Doc. 273; Doc. 275; Doc. 277; Doc. 278; Doc.
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`280; Doc. 281; Doc. 282; Doc. 285; Doc. 287; Doc. 288; Doc. 289; Doc. 290;
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`Doc. 291; Doc. 292; Doc. 293; Doc. 294).
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`(6) The Clerk is DIRECTED to mail a copy of this Order to Bernath.
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`(7) The Clerk is DIRECTED to enter judgment accordingly, terminate all pending
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`motions and deadlines, and close the file.
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`DONE and ORDERED in Fort Myers, Florida this 27th day of December 2017.
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`Copies: All Parties of Record
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