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.
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. Case 1:09-cv-00386-SEB-JMS Document 115 Filed 12/02/09 Page 2 of 10 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 Case 1:09-cv-00386-SEB-JMS Document 115 Filed 12/02/09 Page 3 of 10 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)). 3 Case 1:09-cv-00386-SEB-JMS Document 115 Filed 12/02/09 Page 4 of 10 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). 4 Case 1:09-cv-00386-SEB-JMS Document 115 Filed 12/02/09 Page 5 of 10 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. 5 Case 1:09-cv-00386-SEB-JMS Document 115 Filed 12/02/09 Page 6 of 10 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 email@example.com Todd Arthur Richardson LEWIS & KAPPES firstname.lastname@example.org Joseph Peter Rompala LEWIS & KAPPES email@example.com Lucille Iacovelli 3 Deer Hollow Road Forestdale, MA 02644
Pages to are hidden for
"115"Please download to view full document