Bernath v. Youtube LLC
| Decision Date | 20 March 2017 |
| Docket Number | Case No: 2:16-cv-40-FtM-29CM |
| Parties | DANIEL A. BERNATH, Plaintiff, v. YOUTUBE LLC, DON SHIPLEY, and CAROL DIANE BLAZER SHIPLEY, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on review of defendant's Motion to Dismiss (Doc. #54) filed on December 29, 2016. Plaintiff filed an Opposition (Doc. #56) on January 4, 2017.
Under 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. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1348 (11th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
As a preliminary matter, plaintiff asserts subject-matter jurisdiction based on the presence of complete diversity among the parties, as well as based on the presence of claims asserted pursuant to federal statutes. (Doc. #53, ¶ 40.) Before considering whether plaintiff has sufficiently stated his claims, the Court must consider whether it lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(h)(3). Defendants also raised the issue of this Court's subject-matter jurisdiction, but argue that the undersigned should follow the "first-filed rule" and dismiss this case based on the decision by the Honorable Sheri Polster Chappell dismissing a related case without prejudice on November 18, 2016.1 (Doc. #54, pp. 7-10.)
Diversity jurisdiction requires complete diversity of citizenship, and that the matter in controversy exceed the sum or value of $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a); Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000).
Plaintiff is alleged to be domiciled in the State of Florida. (Doc. #53, ¶ 42.) Extreme Seal Experience LLC is not a named party in the caption but is listed as a defendant and is purported to be a limited liability company registered in the State of Virginia with a principal place of business listed in Maryland with the only "owner" being Don Shipley.2 (Id. ¶¶ 81-82.) YouTube, LLC was dropped as a party although still listed as a named defendant, and therefore will be ignored for review purposes. (Id. ¶ 5.) Defendants Don Shipley and Diane Shipley are both listed as domiciled in Maryland. (Id. ¶¶ 42-43.) The amount in controversy could be met based on the alleged profits gained by defendants, and the threefold damages recoverable under RICO. If the Shipleys are the only intended defendants, plaintiff will be able to allegediversity jurisdiction under Section 1332(a). Otherwise, the allegations as to Extreme Seal Experience LLC are inadequate and the Court cannot determine if a diversity of citizenship exists.
The First Cause of Action alleges a violation of plaintiff's copyright ownership in a registered photograph by defendants who published copies of the registered photograph, and profited from the infringement. Plaintiff alleges that he owns or has the exclusive right to the photograph identified as 2A, which is registered with the United States Copyright Office. (Doc. #53, ¶¶ 4, 6, 69.) Plaintiff alleges that his intellectual property was stolen and published on YouTube, LLC to garner viewers and pay per view monthly subscriptions. Plaintiff seeks to disgorge the profits from the use of his photograph. (Id. ¶¶ 69, 109-111.)
District Courts have original jurisdiction over civil actions arising under federal statutes regulating copyrights and trademarks. 28 U.S.C. § 1338(a). As previously stated, plaintiff must show that he owns a copyrighted work, and that defendants copied protected elements of the copyrighted work. See Doc. #52, pp. 4-5.) Plaintiff has adequately pled a claim for copyrightinfringement3, although he has done so in a shotgun manner by incorporating superfluous allegations irrelevant to the claim as further discussed below. (See, e.g., Doc. #53, ¶¶ 11, 12, 19, 20, 22, 23-37.) The Court finds that plaintiff has alleged a federal question establishing this Court's subject-matter jurisdiction.
Defendants argue that the First Amended Complaint fails to comport with Federal Rules of Civil Procedure 8 and 10, but defendants decline to present arguments as to Counts II through VII arguing that Judge Chappell has already determined that these counts fail to state a claim.4 Although many of the factual allegations are identical, this case does not name the additional defendants named in that case, and the dismissal based on jurisdiction is not binding on this case. The Court will consider defendants' argument as a general averment that plaintiff has failed to state a claim on those counts as well. The remainingarguments for transfer and to defer ruling pending a final decision are otherwise moot, and were denied by separate Order (Doc. #57).
The Court has a sua sponte obligation to identify and dismiss a shotgun pleading. Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1280 (11th Cir. 2006). See also Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 n.54 (11th Cir. 2008) (collecting cases); Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001). Plaintiff's First Amended Complaint is "a paradigmatic shotgun pleading" with "claims interwoven in a haphazard fashion." T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543 n.14 (11th Cir. 1985) (Tjoflat, J., dissenting). The Eleventh Circuit has identified several types of shotgun pleadings, and plaintiff has filed a pleading with "multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint." Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1321 (11th Cir. 2015). Plaintiff also refers to defendants collectively, as responsible for each factual allegation, without a clear demarcation of each party's role. Id. at 1323.
The Second Cause of Action alleges a violation of 18 U.S.C. § 2333; the Third Cause of Action alleges a civil RICO violation;the Fourth Cause of Action alleges negligence per se; the Fifth Cause of Action alleges intentional infliction of emotional distress; and the Sixth and Seventh Causes of Action allege assault and battery, respectively. Each of these counts incorporates paragraphs 1 through 107 in their entirety rendering the factual basis meaningless, and failing to give defendants adequate notice of the claims against them. (Doc. #53, ¶¶ 113, 150, 167, 173. 208, 213.) Plaintiff also alleges facts in various and lengthy footnotes that will not be considered as they are not properly stated in the numbered paragraphs pursuant to Fed. R. Civ. P. 10(b). Therefore, the First Amended Complaint is due to be dismissed without prejudice as a shotgun pleading.
The Second Cause of Action generally alleges that defendants have funded, planned, and carried out terrorist attacks against military civilians by driving them to suicide or actually harming them because of an opposition to United States v. Alvarez, 567 U.S. 709 (2012), and with the specific intent of committing acts of international terrorism. As to plaintiff specifically, plaintiff alleges that defendants terrorized him at his home, and both individual defendants left numerous messages for plaintiff inside of Florida. (Doc. #53, ¶¶ 47-49.) Plaintiff alleges that Don Shipley attacked foreign nationals in their foreign country.(Id. at ¶¶ 53, 97.) Plaintiff alleges that defendants and another individual contacted his children and ex-wife, and Scotland Yard, in the United Kingdom, for the purpose of causing an investigation to defame and cause stress to plaintiff as part of some elaborate political agenda. (Id., ¶¶ 99, 100-101.) Defendants delivered explosive or lethal devices to places of public access with the intent to cause death or serious bodily injury, or to cause destruction of property. (Id. at ¶¶ 114-118.) Plaintiff also alleges investigations and torment of others who are not parties to this case. (Id. at ¶¶ 56-57.)
It is alleged that defendants targeted an aircraft owned by plaintiff and others through a trust located at Page Field airport. It is further alleged that defendants trespassed gates, locks, and surveillance cameras to introduce a liquid into the fuel system and interior of the aircraft to cause it to crash, and/or by cutting the fuel line. (Id. at ¶¶ 119, 121-123, 134.) Plaintiff alleges incidents of sabotage dating back to 2014, and through 2016. (Id. at ¶¶ 124-131.) Unrelated to the incidents at the airport, plaintiff also alleges that defendants admit to assaulting him at his home on October 31, 2015. (Id. at ¶ 142.)
Plaintiff alleges that defendants have a policy of using terror attacks to intimidate civilian populations, and to change the laws of the United States, United Kingdom, Canada and France,but plaintiff's damages stem from the sabotaging of his aircraft. (Id. at ¶¶ 144, 148.) Plaintiff alleges that defendants aided and abetted acts of terrorism and conspired to commit acts of terrorism. Plaintiff alleges, in a conclusory fashion, that these acts are acts of international terrorism under 18 U.S.C. § 2331. (Id. at ¶ 147.)
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