Case 1:09-cv-00386-SEB-JMS Document 32 Filed 04/10/09 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DR. BARRY EPPLEY, MD, DMD, )
v. ) Cause No. 1:09-cv-386-SEB-JMS
LUCILLE IACOVELLI, )
SUPPLEMENT TO PENDING MOTION FOR SHOW CAUSE
HEARING ON WHY DEFENDANT AND HER AGENTS
SHOULD NOT RECEIVE CONTEMPT SANCTIONS
Plaintiff, Dr. Barry Eppley, MD, DMD, by counsel, submits this Supplement to address
ongoing violations of this Court’s April 8, 2009 Order, bearing on the pending show cause
motion seeking contempt sanctions, as filed on April 6th. The defendant and her associates are
now defaming the presiding Judge and mocking the authority of the Court, in an effort to create a
sensation on the internet and stir up public attention. At the scheduled hearing on April 17th or
at such earlier time as the Court deems appropriate, they should be ordered to show cause why
they should not be held in contempt. Dr. Eppley states:
1. Dr. Eppley filed his Verified Complaint in this matter on March 30, 2009, and the
Court granted a Temporary Restraining Order (the “TRO”) the same day. With substantiating
exhibits, the Verified Complaint explained defendant’s recent suicide threats and Dr. Eppley’s
reasonable efforts to alert mental health authorities and seek relief in this Court to address the
anticipated publicity. See Verified Complaint Exs. 19-27. Those communications include not
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only one or two e-mails that Ms. Iacovelli has suggested Dr. Eppley may not be able to prove
were hers, but also contemporaneous website postings saying should would be taking her life
around mid-April. Id. Exs. 24 (“I will end my own life”), 26 (will wear each of 26 garments “at
least once before leaving this life”), 27 (“This is not a suicide message. It is a statement of my
decision to stop fighting for every breath.”). Ms. Iacovelli also threatened repeatedly on the
internet that she would try to publicize her suicide. Id. Exs. 1 (“a video camera will capture the
gruesome event”), 23 (“I will not be silenced during my life time, and certainly not after my
death.”), 25 (Mr. Bergeron will “set the record straight” after her story reaches an unhappy
2. Defendant and two media associates were duly given actual notice and served (see
April 3, 2009 Affidavit of Counsel), and both Ms. Iacovelli and Mr. Bergeron were aware of and
attended the April 7th hearing scheduled in the TRO by telephone, at their request and without
objection. The day before that hearing, Dr. Eppley filed the show cause motion, based on an
undisputed record of clear violations of the TRO by both Ms. Iacovelli and Mr. Bergeron. See
April 6, 2009 Motion to Show Cause, Second Affidavit of Counsel. That motion was thus before
the Court at the April 7th hearing.
3. On April 8th, the Court entered the Order extending the TRO. The Court
expressly admonished both Ms. Iacovelli and Mr. Bergeron that immediate compliance with the
TRO was mandatory and “any further non-compliance” could result in sanctions. Id. ¶¶2-3. The
Court further emphasized that the defendant cannot do indirectly through others what the TRO
prohibits her from doing, and the Court’s authority extended to the website created by Mr.
Bergeron, www.eppleyplasticsurgerysucks.com. Id. The Court further admonished Mr.
Bergeron that the website “must immediately and without further delay, in accordance with the
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terms of the temporary restraining order, be removed from the public realm.” Id. ¶3 (emphasis
added). The Court took the contempt motion under advisement. Id. ¶4.
4. The defendant and her associates, in short, were given a last chance to withdraw
the internet publications they made in violation of the TRO, and were expressly warned that
further violations could be expected to result in contempt sanctions. Mr. Bergeron reacted by:
(1) challenging the presiding Judge’s impartiality, (2) threatening to sue Dr. Eppley and his
attorneys in Massachusetts, (3) promising to “[m]aintain” the website that the Court ordered
removed, (4) endeavoring “to attract major news media interest in this lawsuit,” and (5) claiming
to be the victim of an “old-boy Indiana network” and “rubber stamp” justice. See Third
Affidavit of Counsel Ex. B. Given the express terms of both the TRO and the Order extending
it, and the unequivocal admonishment provided by the Court at the April 7th hearing, that
conduct can only be described as willful and calculated contempt of the Court’s authority.
5. As the TRO stated unambiguously, and as Mr. Bergeron was specifically
informed by both counsel for Dr. Eppley and the Court, an injunction issued by the Court is
binding not only on the actual party but also on all those “in active concert and participation.”
See Securities and Exchange Commission v. Homa, 514 F.3d 661, 673-75 (7th Cir. 2008) (“if
courts did not have the power to punish those who cooperate with those named in an injunction,
the named parties could easily thwart the injunction by operating through others”); Lindland v.
United States Wrestling Association, Inc., 227 F.3d 1000, 1006 (7th Cir. 2000) (“The ‘active
concert or participation’ clause is designed to prevent what may well have happened here: the
addressee of an injunction, eager to avoid its obligations, persuades a friendly third party to take
steps that frustrate the injunction’s effectiveness.”). Even though he is not a party, Mr. Bergeron
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is subject to the Court’s orders and is answerable for contempt by his willful and defiant
6. The Court can and should find both the defendant and Mr. Bergeron responsible,
furthermore, for the outrageous violations carried out through “Frank de Groot.” The messages
from Norway have clearly been coordinated with the events in the litigation: the Sunday morning
“Weapon of Mass Destruction” messages to Dr. Eppley and his attorneys (see Second Affidavit
Exs. E-G) followed on the heels of Mr. Bergeron’s promises to generate “more and more”
adverse publicity on the internet, to “exponentially” greater effect, by turning on the “full force”
of his publicity system with “global reach” (id. Ex. A, Affidavit of Counsel Ex. H). The April
7th de Groot message stating the presiding Judge should be “disbarred” due to “financially-
motivated corruption” (Docket No. 21), moreover, was sent about an hour and a half after the
Court finished orally admonishing Ms. Iacovelli and Mr. Bergeron by telephone that compliance
with the TRO was mandatory. Following the same pattern, the web page devoted to accusing the
presiding Judge of being “corrupt,” a “criminal” and a “thug” (Third Affidavit Ex. E), appeared
the day after Mr. Bergeron announced his defiance of the Court’s orders and promised to
continue his efforts to generate publicity (id. Ex. B). In addition, the messages from Mr. de
Groot display a familiarity with the Court strongly indicative of direct communications with Ms.
Iacovelli and/or Mr. Bergeron, such as knowing the name and e-mail address of the courtroom
deputy (Docket No. 21) and stating twice on the “Corrupt Judge” web page that the Court
threatened to confiscate Ms. Iacovelli’s computer (Third Affidavit Ex. E), referring to something
the Court said orally at a hearing Mr. de Groot did not attend.
7. The messages from Norway, furthermore, have been directed to achieving
litigation concessions for the benefit of the defendant: calling on Dr. Eppley, for example, to
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contact Mr. de Groot within twelve hours to avoid the internet barrage (Second Affidavit Ex. E),
and threatening to ruin the reputations of the law firm and its individual partners if they
“continue” to represent Dr. Eppley (id. Exs. F, G). Revealingly, the de Groot message directed
to the Court stated “[w]e” will seek to have the presiding Judge “disbarred” for alleged
corruption (Docket No. 21), while Mr. Bergeron almost simultaneously threatened a recusal
motion on the same frivolous grounds (Third Affidavit Ex. B). Mr. de Groot, if not an alter ego
of Mr. Bergeron, is at very least his agent in carrying out the announced plan to make the lawsuit
go away by pressuring Dr. Eppley with an increasing volume of adverse internet publicity. See
Affidavit of Counsel Ex. H, Second Affidavit Ex. A, Third Affidavit Ex. B. Mr. Bergeron,
furthermore, while denying he recruited de Groot, states he “imagine[s]” de Groot will dismantle
his website just as Mr. Bergeron will his own, “if the suit is withdrawn.” Third Affidavit Ex. B.
Ms. Iacovelli, the actual party to the litigation and the beneficiary of the efforts by Mr. Bergeron
and his world-wide network, has done nothing to stop their aid to her cause and nothing to
disclaim the benefits they seek to achieve for her. They are jointly responsible for the ongoing
violations of the TRO.
8. Mr. Bergeron, moreover, has demonstrated contempt for the Court’s clear
determination that, as a non-lawyer, he is not authorized to engage in the practice of law in this
proceeding. Despite the Court’s repeated warnings in the April 6th Order (Docket No. 19), at the
April 7th hearing and in the April 8th Order (Docket No. 22), Mr. Bergeron has persisted in
trying to engage Dr. Eppley in settlement negotiations,1 threatening counterclaims, delay and
Mr. Bergeron’s suggestion that his message is “inadmissible” as a settlement
communication (Third Aff. Ex. G) illustrates his misunderstanding of the law. Under Fed. R.
Evid. 408, an offer of compromise is not admissible when offered to prove liability, invalidity of
a claim or the amount of a claim, or for impeachment purposes, but such communications are
admissible for other purposes. See Rule 408(b). Here, Mr. Bergeron’s communication is being
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increased legal expense, and describing himself as a “well-rounded pro-se attorney” out to prove
“that you CAN be your own lawyer.” See Third Affidavit Ex. G (also threatening to sue the
Judge, Clarian Health Partners, Lewis & Kappes and others; “I know all the basics of the law. I
know all the basics and some of the complicated aspects of the procedure, and what I don’t know
about the law and the procedure I can figure out.”). Again, Mr. Bergeron is flouting the
authority of the Court and doing exactly what he was admonished he is not authorized to do.
9. The suggestion that compliance with the Court’s Orders is somehow excused
because of an asserted First Amendment right is unsupportable. “Even if the order were
improperly issued, it must be modified or overturned and not deliberately violated when in
force.” In re Zyprexa Injunction, 474 F.Supp.2d 385, 419 (E.D.N.Y. 2007). See also Walker v.
City of Birmingham, 388 U.S. 307, 321 (1967) (“One may sympathize with the petitioners’
impatient commitment to their cause. But respect for judicial process is a small price to pay for
the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”);
United States v. United Mine Workers, 330 U.S. 258, 303 (1947) (“The interests of orderly
government demand that respect and compliance be given to orders issued by courts possessed of
jurisdiction of persons and subject matter.”). Mr. Bergeron is not at liberty to defy the Court’s
Orders based on his subjective interpretation of First Amendment law, as though the Court’s
authority were contingent on his own independent legal assessments.
10. Notwithstanding Mr. Bergeron’s theory that his acts of contempt constitute
protected speech, the Court’s authority to provide injunctive relief in these circumstances is
supported on several grounds. The TRO is in the nature of a “gag” order, by which the Court has
properly restrained extra-judicial publicity efforts by the defendant and her associates in order to
offered to show contempt of court, insofar as he has persisted in trying to act as though he is Ms.
Iacovelli’s attorney despite this Court’s repeated admonitions that he cannot assume that role.
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assure a fair trial. See United States v. Brown, 218 F.3d 415, 425 (5th Cir. 2000) (“The Supreme
Court and other Courts of Appeals have recognized a ‘distinction between participants in the
litigation and strangers to it,’ pursuant to which gag orders on trial participants are evaluated
under a less stringent standard than gag orders on the press.”). Injunctive relief, furthermore, is
within the Court’s power to grant in cases involving trademark violations (see, e.g., Bosley v.
Wildwett.com, 310 F.Supp.2d 914, 930 (N.D. Ohio 2004) (“it is well-settled law that the prior
restraint doctrine is inapplicable in cases where one’s proprietary interests are at stake, such as
infringements of copyright or trademark”)),2 as well as in cases involving attempted “smear
campaigns” through defamatory internet publications (see International Profit Associates, Inc. v.
Paisola, 461 F.Supp.2d 672, 679-80 (N.D. Ill. 2006); Tory v. Cochran, 544 U.S. 734, 735-38
(2005); Barlow v. Sipes, 744 N.E.2d 1, 10 (Ind. App.), transfer denied, 753 N.E.2d 16 (Ind.
2001)). The defendant and her associates have threatened to use pressure from internet and
media publicity to coerce a settlement (see Affidavit of Counsel Ex. H, Second Affidavit Ex. A,
Third Affidavit Exs. B, G), and are following through on that threat with overt acts in willful
violation of the TRO. The TRO is a lawful exercise of this Court’s authority, and defendant and
her associates have demonstrated contempt for that authority.
11. The Court enjoys broad discretion in addressing contempt. See Connolly v. J.T.
Ventures, 851 F.2d 930, 933 (7th Cir. 1988) (“A court has broad discretion to fashion a remedy
based on the nature of the harm and the probable effect of alternative sanctions.”). The insulting
nature of the TRO violations directed against the presiding Judge as well as Dr. Eppley and his
The contention that, despite Dr. Eppley’s registration of his name, trademark law is not
implicated here on the theory that defendant and her associates are not engaged in a commercial
enterprise is belied by their pattern of conduct. They clearly are seeking to become internet
celebrities, in order to promote the market for Mr. Bergeron’s book and otherwise reap the
financial benefits of celebrity status.
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counsel suggests that the defendant and her associates, especially Mr. Bergeron, are attempting
to goad the Court into punishing them in order to add drama to the story and increase the
publicity. Given the direct attacks on the Court itself, Dr. Eppley trusts to the sound discretion of
the Court in determining an appropriate remedy.
WHEREFORE, Dr. Eppley supplements the pending motion for order to show cause why
defendant and her associates should not be held in contempt, requests that the Court order the
defendant and Mr. Bergeron to show cause at the April 17, 2009 hearing or at such earlier time
as the Court deems appropriate, and that the Court enter such sanctions for the willful contempt
evident here as the Court may find appropriate.
By his attorneys,
LEWIS & KAPPES
By:/s/ Todd A. Richardson
Todd A. Richardson (16620-49)
One American Square, Suite 2500
Indianapolis, Indiana 46282
Counsel for Plaintiff, Dr. Barry Eppley
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CERTIFICATE OF SERVICE
I hereby certify that on April 10, 2009, that the foregoing was filed electronically. Notice
and service was sent to the following party via email and United States Postal Service Mail, this
10rd day of April, 2009:
Lucille M. Iacovelli
3 Deer Hollow Road
Forestdale, MA 02644-1714
I further certify that notice of the filing of the foregoing pleading was given to the
following by sending a copy of the filing to the following individual via email and United States
Mail, this 10th day of April, 2009:
147 Old County Road
East Sandwich, MA 02537
141 Green Street
Abington, MA 02351
s/Todd A. Richardson
Todd. A. Richardson
LEWIS & KAPPES, P.C.
One American Square, Suite 2500
Indianapolis, Indiana 46282
(317) 639-1210 (tel), (317) 639-4882 (fax)