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					    Case 1:09-cv-00386-SEB-JMS Document 115               Filed 12/02/09 Page 1 of 10



                           UNITED STATES DISTRICT COURT
                           SOUTHERN DISTRICT OF INDIANA




DR. BARRY EPPLEY, MD, DMD,                         )
                                                   )
                             Plaintiff,            )
       vs.                                         )      No. 1:09-cv-386-SEB-JMS
                                                   )
LUCILLE IACOVELLI,                                 )
                                                   )
                             Defendant.            )




                       Entry Finding Defendant and Others
               in Contempt, Directing the Imposition of Sanctions,
     Granting Motion to Compel, and Denying Motion for Discovery Sanctions

       For the reasons explained in this Entry, the plaintiff’s motion for order to show cause
(dkt 18) and the supplement thereto (dkt 51), and the plaintiff’s motion to compel (dkt 96)
are each granted. The plaintiff’s motion for discovery sanctions (dkt 81) is denied.

                                          I. Background

        Dr. Barry Eppley is a medical doctor specializing in plastic and reconstructive facial
surgery. His principal place of business is located in Carmel, Indiana. Lucille Iacovelli is a
former patient of Dr. Eppley and a citizen of the Commonwealth of Massachusetts. Invoking
both the court’s diversity and federal question jurisdiction, Dr. Eppley sued Iacovelli on
March 30, 2009, for defamation, trade disparagement, harassment, false-light publicity, and
for violation of § 43 of the Lanham Act, 15 U.S.C. § 1125, through her false designation and
description of fact. Dr. Eppley seeks both injunctive relief and damages.

       A preliminary injunction issued on April 17, 2009, directing defendant Lucille Iacovelli
and those in active concert and participation with her to remove websites and internet
postings related to Eppley, his attorneys, or this lawsuit and prohibiting Iacovelli and those
acting in concert with her from establishing new websites or postings on these subjects.
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The preliminary injunction was issued following the issuance of a temporary restraining
order, and, as used in this Entry, the term “preliminary injunction” includes the terms of that
temporary restraining order. Iacovelli’s appeal of the issuance of the preliminary injunction
was dismissed by the Court of Appeals on June 25, 2009, based on Iacovelli’s failure to pay
the required appellate fees. Eppley v. Iacovelli, No. 09-2239 (7th Cir. June 25, 2009).

       Eppley seeks a finding of civil contempt against defendant Iacovelli and those acting
in concert with her based on their violation of the preliminary injunction and also seeks an
order compelling discovery and the imposition of discovery and other sanctions against
Iacovelli. A hearing was conducted on these requests on July 1, 2009, at which time
evidence was submitted by Eppley. Neither Iacovelli nor those acting in concert with her
appeared at the hearing, but Iacovelli filed a written opposition to Eppley’s requests on
August 10, 2009, and that filing has been considered. The Court refrained from ruling on
the pending matters while Iacovelli’s mandamus action was pending before the Court of
Appeals. Now that that matter has been resolved by a denial of her writ, In re Lucille
Iacovelli, 09-2642 (7th Cir. August 14, 2009), this Court must rule on the pending matters.

       Having considered the filings and evidence, and being duly advised, the Court finds
that Iacovelli and those acting in concert with her have violated the preliminary injunction
and that sanctions for their acts of contempt must issue. The Court also concludes that
Eppley’s motion to compel must be granted, but his motion for sanctions shall be denied.

                                       II. Discussion

              A. Motion for Order to Show Cause

        Eppley’s motion seeking a rule to show cause as well as his supplemental motion
are both governed by 18 U.S.C. § 401, which confers the power of civil contempt on courts
of the United States. Under this statute, “the court is empowered to enforce compliance
with its orders through civil contempt.” Indep. Living Aids, Inc. v. Maxi-Aids, Inc., 349 F.
Supp. 2d 509, 515 (E.D.N.Y. 2004). Acts of contempt may be punished by fine or
imprisonment, based on “[d]isobedience or resistance to its lawful writ, process, order, rule,
decree, or command.” 18 U.S.C. § 401(3).

      To establish civil contempt, each of the following elements must be shown by clear
and convincing evidence:

       (1) the existence of a valid decree of which the alleged contemnor had actual
       or constructive knowledge; (2) . . . that the decree was in the movant's
       “favor”; (3) . . . that the alleged contemnor by its conduct violated the terms
       of the decree, and had knowledge (at least constructive knowledge) of such
       violations; and (4) . . . that [the] movant suffered harm as a result.

Manez v. Bridgestone Firestone North American Tire, LLC, 533 F.3d 578 (7th Cir. 2008)
(quoting Ashcraft v. Conoco, Inc., 218 F.3d 288, 301 (4th Cir. 2000) (alterations in

                                              2
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original).1 In other words, to hold a person in civil contempt, the district court “must be able
to point to a decree from the court which sets forth in specific detail an unequivocal
command which the party in contempt violated.” Grove Fresh Distribs., Inc. v. John Labatt,
Ltd., 299 F.3d 635, 642 (7th Cir. 2002) (quoting Jones v. Lincoln Elec. Co., 188 F.3d 709,
738 (7th Cir. 1999)).

      In this case, as to Eppley’s motion and supplemental motion for order to show
cause, each element of civil contempt has been shown by clear and convincing evidence,
as specifically detailed below:

       !       The first two elements of contempt are shown by the fact of this Court’s
       preliminary injunction issued on April 17, 2009, directing Iacovelli and those acting
       in concert with her to remove certain internet postings and cease making internet
       postings regarding Dr. Eppley, his attorneys, or this lawsuit. The preliminary
       injunction is a decree which sets forth in detail an unequivocal command to Iacovelli
       and those acting in concert with her to take the specified action relative to their
       internet postings and to refrain from additional postings of that character pending a
       final ruling on the merits of this litigation.

       !      The third element of contempt has also been clearly established. The
       evidence submitted on July 1, 2009, and thereafter shows, indeed, Iacovelli and
       those acting in concert with her have admitted, that they have failed and refused to
       abide by the Court’s orders. In addition, the evidence presented by Eppley
       establishes that their defiance of these orders continues. A list of websites, identified
       through the evidence, that Iacovelli and those acting in concert with her have
       created and/or maintained in violation of the Court’s orders is attached as Appendix
       A to this Entry.

       !       Finally, the fourth element of contempt is also plainly established. Eppley has
       suffered, and continues to suffer, harm as a result of the refusal of Iacovelli and
       those acting in concert with her to abide by the Court’s orders. At the hearing on his
       motion for contempt, Eppley described the efforts he has taken and funds he has
       been required to expend to counteract the negative and harmful effects of
       Defendant’s (and those acting in concert with her) postings on the Internet and their
       joint and several refusals to remove previously posted information in violation of the
       Court’s orders. Eppley estimates that he spends $2,000 to $3,000 per month on
       these efforts to countermand the effects of the wrongful postings.



       1
       The Court notes that a party may be held in civil contempt “if he has not been
reasonably diligent and energetic in attempting to accomplish what was ordered.” Am. Fletcher
Mortgage Co. v. Bass, 688 F.2d 513, 517 (7th Cir. 1982) (“The district court may find a
defendant in civil contempt.”(citation and quotation marks omitted)).


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Based on the foregoing, the Court rules that Iacovelli and those acting in concert
with her are in indirect contempt of this Court’s orders through their violation(s) of
the preliminary injunction.

       Having found Iacovelli and those acting in concert with her in indirect contempt, the
Court shall next address the issue of appropriate sanctions.2

       !        Both coercive and compensatory sanctions are warranted in this case. As to
       the former, Iacovelli and her associate, Rich Bergeron, are hereby ordered to
       immediately remove and cause to be removed from the Internet any website or
       posting on a website they have created related to Dr. Eppley, his attorneys, or this
       litigation–including, but not limited to, those websites and postings identified in
       Appendix A. The steps required of Iacovelli and Bergeron include contacting the
       operators of interactive computer services that operate, host, or otherwise control
       these websites, informing them of this order, and directing them to forthwith remove
       the websites, postings, or links.

       !      Further, Iacovelli shall immediately direct any and all persons acting on her
       behalf or in concert with her to assist in the removal of these sites and to refrain
       from creating new ones.

       !       Iacovelli shall file with this Court an affidavit or declaration detailing the steps
       she has taken to comply with these requirements within 20 days from the issuance
       of this Order.

       !      As to the compensatory sanctions, based on the ongoing monthly expenses
       Eppley has incurred and continues to incur to counteract the effects of the postings
       on the Internet by Iacovelli and her associates and their joint and several refusals
       to remove previously posted information in violation of the Court’s orders, Iacovelli
       is hereby ordered to partially compensate Eppley for the costs he has incurred as
       a result of her contempt. This partial compensation shall be payment to Eppley at


       2
        Contempt sanctions are characterized by the court's need to compel obedience of its
orders and/or to “compensate the contemnor's adversary for the injuries which result from the
noncompliance.” Manez, 533 F.3d at 590 (quoting Falstaff Brewing Corp. v. Miller Brewing Co.,
702 F.2d 770, 778 (9th Cir. 1983)). Additionally, contempt sanctions can coerce a contemnor’s
compliance with a court order. “A coercive sanction must afford the contemnor the opportunity
to ‘purge,’ meaning the contemnor can avoid punishment by complying with the court order.”
Federal Trade Comm’n v. Turdeau, 579 F.3d 754, 769 (7th Cir. 2009) (citation omitted). A court
passing on a civil contempt petition may impose sanctions to redress harm that has been
caused or to secure compliance with its orders, but may not exact punitive damages. E.g. South
Suburban Housing Center v. Barry, 186 F.3d 851, 854 (7th Cir. 1999); In the matter of Maurice,
73 F.3d 124, 127-28 (7th Cir. 1995); Connolly v. J.T. Ventures, 851 F.2d 930, 933 (7th Cir.
1988).


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       the rate of $50 per calendar day, beginning on July 1, 2009. As of the date of this
       Order, meaning through December 2, 2009, the amount due is $7,750. The
       obligation to make these payments shall continue until such time as the Court finds
       that Iacovelli has purged herself of her contempt. Payment shall be made by a
       certified check made payable to "Dr. Barry Eppley, M.D., DMD" and mailed to him
       in care of his attorneys at the law firm of Lewis & Kappes in Indianapolis.

If Iacovelli fails to report within 20 days from the issuance of this order that she has fully
purged herself of her contempt as directed above, a further order will issue, based on the
Court’s authority under the All Writs Act, 28 U.S.C. § 1651, authorizing Eppley and his
attorneys to secure compliance with the Court’s directions by contacting non-party internet
operators and others directly.

       The Court shall sua sponte, consider the need for additional sanctions and for other
appropriate remedial Orders thirty (30) days after the date of this order, based on Iacovelli’s
compliance and that of persons acting in concert with her to violate the Court’s orders, and
shall enter such additional sanctions and orders as are necessary and appropriate.

              B. Motion to Compel

      Eppley’s motion to compel discovery is governed by Rule 37(a)(3)(B) of the Federal
Rules of Civil Procedure, which permits a party to move for an order compelling discovery
when the party from whom discovery is sought has provided no response to properly
served discovery requests.

       Eppley served discovery requests on Iacovelli by mail on April 21, 2009. Iacovelli
provided no response to the requests, either by providing the requested documents and
things or by asserting objections to the requests. Instead, Iacovelli has admitted to this
Court that she refuses to participate in discovery as required by the Federal Rules of Civil
Procedure. In her response to Eppley’s motion for order to show cause, she stated: “[W]ith
respect to discovery requests Iacovelli refuses to participate in such a process if she is
barred from participating in every other fashion in this case.” This statement is contained
in Iacovelli’s filing of August 10, 2009.

      Because Iacovelli has refused and continues to refuse to respond to Eppley’s
discovery requests, Eppley’s motion to compel is granted. Iacovelli shall have twenty (20)
calendar days from the date of this Entry to provide the requested documents and things.

        Under Rule 37(a)(5)(A), if a motion to compel is granted, the court shall, after
affording an opportunity to be heard, require the party whose conduct necessitated the
motion to pay to the moving party the reasonable expenses incurred in making the motion,
unless the court finds that the motion was filed without the movant first making a good faith
effort to obtain the discovery without court action, the party's nondisclosure, response or
objection was substantially justified, or that other circumstances make an award of
expenses unjust. Accordingly, Eppley shall have ten calendar days from the date of this
Order in which to file a request for fees. Iacovelli shall have ten calendar days to respond.


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               C. Motion for Discovery Sanctions

        Rule 37 provides: “If a party . . . fails to obey an order to provide or permit discovery,
including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may
issue further just orders.” Fed.R.Civ.P. 37(b)(2)(A). Permissible remedial measures include
“treating as contempt of court the failure to obey any order except an order to submit to a
physical or mental examination.” Fed.R.Civ.P. 37(b)(2)(A)(vii).

       As its plain language provides, Rule 37(b) requires the moving party to establish
“two things as conditions precedent to engaging the gears of the rule's sanction machinery:
a court order must be in effect, and then must be violated.” Ortiz-Lopez v. Socieded
Espanola de Auxilio Mutuo & Benefiencia de P.R., 248 F.3d 29, 33 (1st Cir. 2001) (quoting
R.W. Int'l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15 (1st Cir. 1991)).

       Sanctions authorized by Rule 37(b)(2)(A)(i)-(vi) are not applicable here because they
require a party's “[failure] to obey an order to provide or permit discovery, including an order
under Rule 26(f), 35 or 37(a).” Fed.R.Civ.P. 37(b)(2)(A). The sanctionable conduct at issue
here involves Iacovelli’s failure to respond to written discovery served on her. That conduct
does not, at present, involve any specific order of the Court. Accordingly, the motion for the
imposition of discovery sanctions is premature and must be denied at this time. Oklahoma
v. Tyson Foods, Inc., 2009 WL 3682757 (N.D.Okla. 2009).

                                        III. Conclusion

         Iacovelli’s prolonged, documented, and chronic failure to participate responsibly in
this litigation and obey the Court’s orders implicates significant consequences. Continued
recalcitrance will not be countenanced. The rulings made in this Entry permit her to purge
herself of her contempt and to participate in this case as the Federal Rules of Civil
Procedure require. The court stresses, however, that more serious consequences will
follow if she fails to do so. She is well advised to conform her conduct in this case
accordingly.

        IT IS SO ORDERED.




          12/02/2009                                _______________________________
Date:
                                                     SARAH EVANS BARKER, JUDGE
                                                     United States District Court
                                                     Southern District of Indiana
    Case 1:09-cv-00386-SEB-JMS Document 115             Filed 12/02/09 Page 7 of 10



                                       Appendix A

      The following is a non-exhaustive list of those websites and postings that have been
created and/or maintained in violation of this Court’s orders.

      a.     losingface.net - any postings containing references to Dr. Eppley, his
             attorneys, or this litigation or links to sites containing these references;

      b.     www.youtube.com/user/luciacovelli              –   content located at
             www.youtube.com/profile?user=Luciacovelli&view=videos and
             www.youtube.com/user/Dreppleysvictims; and the posting by
             “fightnewsunlimited” at www.youtube.com/watch?v=V0bsv5RXZDU titled
             “Justice For Lucille Iacovelli: Dr. Barry Eppley Sucks.”

      c.     luciliacovelli.wordpress.com – any postings containing references to Dr.
             Eppley, his attorneys, or this litigation or links to sites containing these
             references;

      d.     www.cosmeticsurgeryuglyside.blogspot.com – any postings containing
             references to Dr. Eppley, his attorneys, or this litigation or links to sites
             containing these references;

      e.     lucilleiacovelli.blogspot.com – any postings containing references to Dr.
             Eppley, his attorneys, or this litigation or links to sites containing these
             references;

      f.     eppleylawsuit.blogspot.com – any postings containing references to Dr.
             Eppley, his attorneys, or this litigation or links to sites containing these
             references;

      g.     lucilleiacovellieye.blogspot.com – any postings containing references to Dr.
             Eppley, his attorneys, or this litigation or links to sites containing these
             references;

      h.     awfulplasticsurgery.com – any postings containing references to Dr. Eppley,
             his attorneys, or this litigation or links to sites containing these references;

      i.     luciacovelli.livejournal.com – any postings containing references to Dr.
             Eppley, his attorneys, or this litigation or links to sites containing these
             references;

      j.     picasweb.google.com – the following items from the page described as
             “Lucille’s Public Gallery” at “picasweb.google.com/luciacovelli” containing the
             following items: “The ‘examination’ they refuse to perform”; “After Dr.
             Eppley’s Diasterous [sic] Revision”; and “Dr. Barry Eppley – Photos After
             Revision Surgery – 2001 - 2008"; the following other galleries:
             picasweb.google.com/luciacovelli/DrBarryEppleyPhotosAfterRevisionSurg
             ery; and
Case 1:09-cv-00386-SEB-JMS Document 115           Filed 12/02/09 Page 8 of 10



       picasweb.google.com/luciacovelli/WhatIWasForcedToDoToSurvive200720
       08;

 k.    the following posts from complaintsboard.com: “Dr. Barry Eppley Complaints
       – Do not risk your precious health by undergoing cosmetic surgery!” and the
       comment by “Boxer_47" containing a link to the website
       eppleyplasticsurgerysucks.com;

 l.    the post from the website consumers2consumers.com “Dr. Barry Eppley –
       Worse than Negligent”;

 m.    the posts on myspace.com at myspace.com/luciacovelli “Lucille Iacoveli –
       Cape Cod: Yesterday’s plans and expectations = Today’s failure” and “The
       compassion of strangers”; “Losing face has a new home”; “Inadequate
       Physical Exam”; and “Dr. Barry Eppley Facelift Diary” and the site
       blogs.myspace.com/index.cfm?fuseaction=blog.ListAll&friendsId=352450308;

 n.    plasticdisaster.wordpress.com – any postings containing references to Dr.
       Eppley, his attorneys, or this litigation or links to sites containing these
       references;

 o.    helium.com – page at helium.com/users/331304 identified as “About me”
       containing links to cosmeticsurgeryuglyside.blogspot.com; losingface.net;
       and lucilleiacovelli.blogspot.com;

 p.    zimbio.com      –
       zimbio.com/Plastic+Surgery+Discussion/articles/96/What+keeps+me+going
       including the videos: “Dr. Barry Eppley Omitted Essential Part of My
       Operation-Video” and “Inadequate Physical Examination-Video”;

 q.    thesqueakywheel.com          -   postings     at   thesqueakywheel.
       com/complaints/2009/JANcomplaint429418.cfm and the
       squeakywheel.com/complaints/2007FEB/complaint11629.cfm consisting of
       posts “Dr. Barry Eppley & Andrea Bradley-Stutz Cannot Silence Truth” and
       “Barry Eppley: Cosmetic Surgery’s Unscrupulous Smooth Operator”;

 r.    unlimitedfightnews.com - posting titled “Rabble Rousin’ Rich Bergeron’s
       Latest Legal Fight”

 s.    Photobucket.com – all images that depict Iacovelli                  on   page
       s303.photobucket.com/albums/nn137/luciacovelli/?start=all

 t.    www.funny.godiggs.com/Dr-Barry-Eppley-Before-the-Facelift-Journal-from-
       health-to-hell.

 u.    video.aol.com/video-detail/dr-barry-eppley-facelift-journey-from-health-to-hell

 v.    www.eppleyplasticsurgerysucks.com
Case 1:09-cv-00386-SEB-JMS Document 115          Filed 12/02/09 Page 9 of 10




 w.    www.lewis-kappessucks.com

 x.    www.judgegod.com

 y.    www.barryeppleyplasticsurgeon.com

 z.    www.losingface.org

 aa.   luciacovelli.multiply.com

 bb.   losingface.multiply.com

 cc.   suckssite.ning.com/profile/LucilleIacovelli

 dd.   www.veoh.com/group/luciacovelli

 ee.   www.vimeo.com/luciacovelli
    Case 1:09-cv-00386-SEB-JMS Document 115   Filed 12/02/09 Page 10 of 10



Distribution:

Gary P. Price
LEWIS & KAPPES
gprice@lewis-kappes.com

Todd Arthur Richardson
LEWIS & KAPPES
trichardson@lewis-kappes.com

Joseph Peter Rompala
LEWIS & KAPPES
jrompala@lewis-kappes.com

Lucille Iacovelli
3 Deer Hollow Road
Forestdale, MA 02644

				
DOCUMENT INFO
Description: Judge Sarah Evans Barker, Dr. Barry Eppley, and Attorney Todd Richardson, of Lewis & Kappes are perpetuating an ongoing injustice in the Indiana federal courts designed to punish a disabled victim of poor plastic surgery for speaking the truth. These are the documents that outline this deceptive and malicious campaign to silence one of Dr. Eppley's most outspoken critics. Please go to www.suckssite.com to learn more.