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Post Dated Bogus Judge Barker Injunction _Prior Restraint on Free Speech_

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					Case 1:09-cv-00386-SEB-JMS

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IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION __________________________________________ ) ) ) Plaintiff, ) ) v. ) ) LUCILLE IACOVELLI, ) ) Defendant. ) __________________________________________) DR. BARRY EPPLEY, MD, DMD,

Cause No. 1:09-cv-386-SEB-JMS

This cause comes before the Court for hearing on the Plaintiff’s Motion for Preliminary Injunction on April 17, 2009, and evidence was then heard. Having heard the evidence, reviewed the filings by Plaintiff’s counsel and the Defendant, and heard argument, the Court now makes to following Findings of Fact and Conclusions of Law. Findings of Fact 1. On March 30, 2009 Dr. Eppley filed with this Court his “Verified Complaint for

Temporary Restraining Order, Injunctive Relief and Damages” (“Verified Complaint”) (Docket No. 1), together with a motion and brief in support of the issuance of a Temporary Restraining Order. (Docket Nos. 9, 10). 2. Dr. Eppley, in his Verified Complaint, set forth evidence that his business and

reputation have been damaged by the false and defamatory statements made by the Defendant, Lucille Iacovelli (“Ms. Iacovelli”), that he had been the subject of ongoing harassment by her, that his name is awaiting issuance of a certificate of registration (which was subsequently

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issued), and that Ms. Iacovelli had infringed his protected interests in his mark. See generally Verified Complaint (Docket No. 1 at ¶¶ 8, 12-18 and at Exhibits 1-18). 3. Dr. Eppley also indicated that on March 18, 2009 he received a message on his

website from Ms. Iacovelli expressing her intention to commit suicide on April 18, 2009, and to use her death to “destroy” Dr. Eppley. That message was followed by additional messages counting down the days from March 18, 2009 until April 18, 2009. See Verified Complaint (Docket No. 1 at ¶20 and at Exhibits 19-22). 4. In addition, various web postings made by Ms. Iacovelli confirmed an intention to

commit suicide on April 18, 2009, and to use depictions of her death in an effort to further damage Dr. Eppley’s business and reputation. See Verified Complaint (Docket No. 1 at ¶¶ 21, 22 and Exhibits 1, 19-27). 5. On March 30, 2009, this Court entered its “Order Granting Plaintiffs’ Motion for

Temporary Restraining Order” (“TRO”), without notice, pursuant to Fed. R. Civ. P. 65(b), restraining Ms. Iacovelli and those in active concert and participation with her from publishing or posting further defamatory and disparaging statements or depictions on the internet, or elsewhere, concerning her intention to end her life, Dr. Eppley’s efforts to forestall that act, his prior treatment of her, his conduct in alerting mental health authorities to the suicide threat, and his efforts to obtain the TRO in an effort to forestall the publication of images and descriptions of her intended suicide. (Docket No. 11.) 6. This Court found, in issuing the TRO, that significant and irreversible damage

would be done to Dr. Eppley’s reputation and business interests, should such statements be made by Ms. Iacovelli or her associates, and also that restraint of such publications may remove an incentive to carry out the self-destructive act. (Id.)

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7.

Pursuant to Fed. R. Civ. P. 65, a hearing was set for April 7, 2009 at 2:30 PM, as

to why a preliminary injunction should not issue. (Id.) 8. Dr. Eppley secured service on Ms. Iacovelli on April 3, 2009, and provided actual

notice of the TRO to individuals in active concert and participation with her, specifically Mr. Richard Bergeron, a writer, and Ms. Erika Hahn, a videographer. See Affidavit of Counsel Regarding Service and Notice, submitted to the Court on April 3, 2009 (Docket No. 14 at ¶¶ 6-9 and Exhibits C-K). 9. The preliminary injunction hearing was held, as ordered. Dr. Eppley appeared in

person and by counsel. Ms. Iacovelli appeared pro se telephonically. Also before the Court telephonically was Mr. Bergeron, as a potential witness. April 13, 2009 Amended Order (Docket No. 33). 10. During that hearing, the Court made substantial effort to impress upon both Ms.

Iacovelli and Mr. Bergeron that, whatever their beliefs regarding the propriety of the March 30, 2009 TRO, that order of the Court was enforceable and required their compliance, and also that non-compliance could result in the imposition of sanctions. (Docket No. 33 at ¶¶ 2-3). 11. Following the Court’s questioning and repeated instruction, Ms. Iacovelli

indicated she understood that the TRO applied to her and her websites, that she was required to comply with the terms of the TRO, and that she would comply. (Docket No. 33 at ¶ 2; Hearing of April 7, 2009) 12. Mr. Bergeron, after being admonished that he was not a party entitled to appear

pro se and as a non-attorney could not “represent” Ms. Iacovelli, was admonished by the Court in a similar manner. Despite such admonishment, Mr. Bergeron indicated subsequent to the hearing an intention to continue publishing material in violation of the terms of the TRO.

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(Docket No. 33 at ¶ 3; Hearing of April 7, 2009; See also April 10, 2009 Third Affidavit of Counsel (Docket. No. 31 at Exhibit B; Docket Nos. 28, 29). 13. Because the Defendant expressed confusion with regards to the nature of the April

3, 2009 hearing, and failed to present admissible evidence as to why a preliminary injunction should not issue, the Court, pursuant to Fed. R. Civ. P. 65(b)(2), extended the TRO up to and including April 17, 2009, and re-set the hearing on Plaintiff’s Motion for Preliminary Injunction for 2:00 P.M. on that day. (Docket No. 33 at ¶ 6; Hearing of April 7, 2009). 14. Between April 3, 2009 and April 17, 2009, Dr. Eppley, his counsel, and the Court

received emails from Mr. Bergeron indicating an intention to continue posting material in violation of the TRO. See April 10, 2009 Third Affidavit of Counsel (Docket. No. 31 at Exhibit B; Docket Nos. 28, 29). 15. Mr. Bergeron did, in fact, continue making such postings as detailed by the

Second and Third Affidavits submitted to this Court by counsel for Dr. Eppley. See April 6, 2009 Second Affidavit of Counsel (Docket No. 16 at ¶ 5, Exhibit C) and April 10, 2009 Third Affidavit of Counsel (Docket No. 31 at ¶5, Exhibit C). 16. Further, the Court, Dr. Eppley, and his counsel, received emails from an

individual identified as “Frank de Groot” indicating an intention to make similar postings, and outlining a plan to use the internet as a “Weapon of Mass Destruction” to destroy the reputations of Dr. Eppley, his counsel, his counsel’s law firm, and the Court. See April 6, 2009 Second Affidavit of Counsel (Docket No. 16 at ¶¶ 7-9, Exhibits E-G); April 10 2009 Third Affidavit of Counsel (Docket No. 31 at ¶¶ 6, 8, Exhibits D, F see also Id. at ¶ 7 Exhibit E); Entries and Submissions of April 8, 2009 and April 9, 2009 (Docket Nos. 20-21; 28, 30).

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17.

Despite assertions by Ms. Iacovelli and Mr. Bergeron that Mr. de Groot is acting

independently, his messages indicate a close familiarity with the proceedings before this Court, a pattern of coordination with the publicity efforts of Ms. Iacovelli and Mr. Bergeron, and a line of communication between himself and Ms. Iacovelli and/or Mr. Bergeron. Compare Docket No. 31 at Exhibit G (Email from Richard Bergeron stating that “I know that if you keep pestering Lucille, Frank De Groot may take things to another psychotic level. . . .”) with Docket No. 31 at Exhibit B (Email from Richard Bergeron to counsel stating “ From all the evidence I’ve seen, [Frank De Groot] simply took up the reins on this all by himself. However, I imagine if he knows the lawsuit is over, he will likely take down his Web-site, as I will dismantle [mine] if the suit is withdrawn”) and Docket No. 16 at Exhibit E (from Frank De Groot “Since April 4, 2009 I am handling some Internet PR affairs of Mrs. Iacovelli. . . .) and Docket No. 29 (April 8, 2009 Email forwarded to Court from Richard Bergeron stating he has “been made aware” of Judge Barker’s alleged bias based on connection to Clarian Health Partners) and Docket No. 21 (April 7, 2009 Email from Frank De Groot to Court noting Judge Barker’s connection to Clarian Health Partners). 18. was held. 19. In his Verified Complaint and during examination at the hearing, Dr. Eppley set On April 17, 2009, the hearing on Plaintiff’s Motion for a Preliminary Injunction

out the history of his dealings with Ms. Iacovelli. 20. In 2001, Dr. Eppley performed a surgical facelift procedure on Ms. Iacovelli in

Indianapolis, Indiana. Verified Complaint (Docket No. 1 at ¶9)

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21.

Subsequent to that procedure, Ms. Iacovelli began expressing dissatisfaction with

the results of the surgery, and complained of pain, difficulty breathing, ringing in her ears, and a decreased ability to extend her neck, lift her head or close her mouth. (Id. at ¶12). 22. Dr. Eppley attempted to address her concerns for nearly a year, but Ms. Iacovelli

nevertheless began sending hostile and threatening letters and e-mails to Dr. Eppley and his staff. (See Id. at ¶¶ 12, 17). 23. Ms. Iacovelli also began to publish webpages and videos on the internet,

describing what she contends are life-threatening medical problems allegedly caused by the surgery performed by Dr. Eppley. (See Id. at ¶¶ 12, 14, 15, 16). 24. Ms. Iacovelli runs, operates, maintains, or has maintained for her, a number of

websites containing numerous statements alleging negligence, malpractice and other misconduct by Dr. Eppley. Id. See also Defendant’s Answer to Plaintiff’s Verified Complaint (“Answer”) (Docket No. 24 (accepted for filing by April 13, 2009 Entry on Selected Matters (Docket No. 34))) at ¶ 9). 25. Through these websites and many other internet postings, Ms. Iacovelli has

gained a degree of fame and notoriety, and in 2006 she was featured in an HBO documentary “Plastic Disaster” concerning the potential downside of plastic surgery. Verified Complaint (Docket No. 1 at ¶19). See also Answer (Docket No 24 at ¶12 “Defendant . . . concur with first two sentences of Paragraph 19 [of the Verified Complaint] . . . .” The First sentence of Paragraph 19 of the Verified Complaint states “Ms. Iacovelli has gained a degree of fame and notoriety associated with her unfounded complaints against Dr. Eppley.” (emphasis added)). 26. Ms. Iacovelli and Mr. Bergeron have also indicated a plan for Mr. Bergeron to

write a book detailing her experience with plastic surgery. Verified Complaint (Docket No. 1 at

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¶19). See also Answer (Docket No. 24 at ¶12 Ms. Iacovelli “concurs” with the “final two sentences” in Paragraph 19 of the Verified Complaint which state, in part, that Ms. Iacovelli and Mr. Bergeron are working together and that he is writing a book). 27. Ms. Iacovelli’s websites, videos and internet postings contain numerous

statements accusing Dr. Eppley in outraged terms of medical malpractice, fraud, negligence, brutality, and “butchery,” and otherwise attribute her alleged health problems to the surgery by Dr. Eppley. Verified Complaint (Docket No. 1 at ¶ 16). 28. Ms. Iacovelli’s websites and internet postings also contain statements admitting

that other doctors have examined her and have not found her to have any physical abnormality or other medical condition related to the 2001 surgery. Ms. Iacovelli has suggested that there is a conspiracy in the medical community to protect Dr. Eppley. (Id. at ¶ 13). 29. During the hearing, Ms. Iacovelli produced no evidence linking her alleged

medical condition with the surgery performed in 2001 by Dr. Eppley, nor any evidence indicating that he had committed any malpractice in performing that surgery. 30. Ms. Iacovelli, in her “Answer” (which this Court permitted to be filed on April 9,

2009), indicates that she runs the websites as a “sole proprietor” and “operator”, apparently as her primary occupation, and purportedly as a service to the public for the purpose of warning others of the dangers of plastic surgery, and, particularly, surgery performed by Dr. Eppley, in the hope of dissuading them from undergoing such surgery. See Docket No. 24 at “Counterclaims” at ¶ 1 but see April 13, 2009 Entry on Selected Matters (Docket 34) holding Docket No. 24 “not effective as a purported counterclaim”)

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31.

Dr. Eppley testified that in the cosmetic surgery business, reputation is a

significant factor in potential consumers’ selection of a surgeon. Verified Complaint (Docket No. 1 at ¶ 18) 32. Dr. Eppley testified that his professional credentials are extensive and that his

reputation has been damaged extensively by the acts of Ms. Iacovelli. (Id. at ¶¶ 6, 8, 18). 33. Dr. Eppley testified that he has lost a substantial volume of business as a direct

result of Ms. Iacovelli’s postings. (Id.at ¶ 18). 34. Ms. Iacovelli has sent communications to Dr. Eppley and his associates indicating

that it is her intention to use her postings, which feature his name, to divert those searching for his name and businesses through the internet from websites run and authorized by Dr. Eppley, to her own websites. (Id. at ¶18). 35. Ms. Iacovelli has also sent communications to Dr. Eppley and his associates

which make threats and attempt to coerce Dr. Eppley to perform additional surgery on her, provide additional information and otherwise satisfy her demands, in exchange for her undertaking to remove her internet postings and cease making additional postings. Verified Complaint (Docket No. 1 at ¶ 17, Exhibits 13-18). 36. Mr. Bergeron and Mr. de Groot have sent threatening communications to Dr.

Eppley and his counsel, which attempt to coerce dismissal or settlement of this action and withdrawal by counsel, and which threaten deliberate protraction of the proceedings, infliction of undue legal expense and use of adverse internet publicity in an effort to apply increasing pressure on Dr. Eppley and his counsel. See, e.g., April 6. 2009 Second Affidavit of Counsel (Docket No. 16 at Exhibits B, E, F); April 10, 2009 Third Affidavit of Counsel (Docket No. 31 at Exhibits B, D, F & G).

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37.

Against the entire background of the Defendant’s actions, and those in active

concert and participation with her, Dr. Eppley’s remedies at law are inadequate to protect his reputation in the face of the announced plan of mounting internet publicity targeting Dr. Eppley. 38. Ms. Iacovelli has not produced admissible evidence that substantiates any claim

that the issuance of an injunction will harm her legitimate interests. 39. Dr. Eppley’s Verified Complaint, exhibits and substantiating testimony indicate

that the ongoing internet campaign by Ms. Iacovelli and her associates has caused, and will continue to cause, substantial and ongoing injury to his reputation and business. 40. Ms. Iacovelli has not produced admissible evidence or compelling argument that a

restriction on false, defamatory, harassing, extortive, and otherwise unprotected speech is against the public interest. 41. Ms. Iacovelli has not produced admissible evidence or compelling argument that

restriction on their use of Dr. Eppley’s trademark is against the public interest. Conclusions of Law 1. Any finding of fact that contains a conclusion of law shall to that extent be

deemed a conclusion of law, and any conclusion of law that contains a finding of fact shall to that extent be deemed a finding of fact. 2. This Court has subject matter jurisdiction over this cause pursuant to 28 U.S.C.

§§1331, 1332 and 1338, by virtue of claims raising federal questions, diversity of citizenship and claims arising under the federal trademark laws. 3. This Court has personal jurisdiction over Ms. Iacovelli because the surgery

performed by Dr. Eppley that is the subject of her internet postings and videos occurred in Indiana, her internet publications have targeted Dr. Eppley’s business in Indiana, the intended

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audience for her internet publications has consisted, in large part, of individuals in Indiana who are considering Dr. Eppley’s services, the harassing communications by Ms. Iacovelli and her associates have been directed to Indiana recipients, and the defamatory publications and violation of trademark rights raised by Dr. Eppley have been directed against an Indiana physician and his Indiana-based business. See Ind. Trial Rule 4.4(A)(1), (4), (8); Calder v. Jones, 465 U.S. 783, 788-90 (1984); Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club L.P., 34 F.3d 410, 411-12 (7th Cir. 1994); JPMorgan Chase Bank, N.A. v. Desert Palace, Inc., 882 N.E.2d 743, 750 (Ind. App.), transfer denied, 898 N.E.2d 1217 (Ind. 2008). 4. Venue is proper in this Court pursuant to 28 U.S.C. §1391 insofar as a substantial

portion of the events at issue occurred in and have been directed at this judicial district. 5. Ms. Iacovelli was duly served with the Verified Complaint, Summons, the TRO

and other litigation papers by personal delivery on April 3, 2009. Her answer to the Verified Complaint was submitted informally to the Court on April 7, 2009, and was accepted for filing on April 9, 2009. See April 9, 2009 Order (Docket No. 23). 6. The Court issued the TRO pursuant to Fed. R. Civ. P. 65(b) on March 30, 2009,

and, following notice to Ms. Iacovelli and a hearing in which she participated telephonically, extended the TRO through and including April 17, 2009, in accordance with Rule 65(b)(2). See April 13, 2009 Amended Order (Docket No. 33). 7. Dr. Eppley has moved for a preliminary injunction pursuant to Fed. R. Civ. P.

65(a) (see Docket No. 12), and Ms. Iacovelli received due notice of the hearing on that motion. The Court held an evidentiary hearing on the preliminary injunction motion on April 17, 2009. 8. A preliminary injunction may be issued where the movant shows: (1) some

likelihood of success on the merits; (2) irreparable harm and no adequate remedy at law; (3) a

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balance of harms favoring the movant; and (4) conformance to the public interest. See Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). The greater the likelihood of success, the less the balance of irreparable harms needs to favor the movant. Id. at 895-96. 9. Dr. Eppley has established a strong likelihood of success on the merits of his

claims. The evidence of record shows that the facelift surgery he performed on Ms. Iacovelli in 2001 was a procedure he had performed successfully many times in the past, that he did not encounter any complications in performing that surgery, and that he did not commit any kind of malpractice or make any errors in that surgery. The evidence further shows that the symptoms and conditions about which Ms. Iacovelli complains were not caused by the surgery performed by Dr. Eppley, that her assertions to the contrary are not medically feasible, and that she has no reasonable basis on which to attribute her reported symptoms and conditions to any kind of malpractice or negligence on the part of Dr. Eppley. She has admitted to her publication on the internet of numerous websites, postings and videos containing statements accusing Dr. Eppley of malpractice, negligence and other misconduct. There is a substantial likelihood, accordingly, that Dr. Eppley will prevail on the merits of his claims for defamation, trade disparagement and false light publicity. Felsher v. University of Evansville, 755 N.E.2d 589 (Ind. 2001) (holding former professor’s internet disparagement of university supported relief under a variety of tort theories); Newman v. Jewish Community Center Association, 875 N.E.2d 729, 734-35 (Ind. App. 2007), transfer denied, 891 N.E.2d 42 (Ind. 2008) (reciting elements of defamation); Lovings v. Thomas, 805 N.E.2d 442, 445-46 (Ind. App. 2004) (reciting elements of false light publicity); Barlow v. Sipes, 744 N.E.2d 1, 5-10 (Ind. App.), transfer denied, 753 N.E.2d 16 (Ind. 2001) (affirming grant of preliminary injunction in defamation and tortious interference case).

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10.

There is a substantial likelihood, furthermore, that Dr. Eppley will prevail in

establishing that Ms. Iacovelli has engaged in unlawful harassment and extortion. See Verified Complaint Ex. 14 (admitting to use of accusations as “a bargaining chip”); id. Ex. 16 (“I will remove my material from the Internet if you answer my questions”). Her barrage of direct communications to Dr. Eppley and his business, her offers to cease making disparaging internet postings if specified demands are met, and the post-litigation threats by Ms. Iacovelli’s associates to attempt to ruin the reputations of Dr. Eppley, his business, his counsel, his counsel’s firm and the Court unless litigation concessions are made, provide substantial support for Dr. Eppley’s allegations that Ms. Iacovelli and her associates have violated 18 U.S.C. §875(d), 47 U.S.C. §223(a)(1)(E), Ind. Code §35-45-2-2(a) and Ind. Code §35-45-10-1 et seq. 11. Ms. Iacovelli has not provided evidentiary support for her contention that she did

not communicate an intent to commit suicide on April 18, 2009, the eighth anniversary of the surgery in Indianapolis, and did not send the messages attached as Exhibits 19-22 of the Verified Complaint. The messages utilized her e-mail addresses, were written in her distinctive style, and corresponded to contemporaneous internet postings that she admits to making. The confirming internet postings include a February 2, 2009 statement that “I will end my own life while I am still able” (Verified Complaint Ex. 24), a March 21, 2009 statement that she will wear each of 26 garments “at least once before leaving this life,” thereby indicating an intent to die in mid-April (Ex. 26), and a March 22, 2009 statement that “It is time to cut my losses” and “This is not a suicide message. It is a statement of my decision to stop fighting for every breath.” (Ex. 27). She also published a poem on March 7, 2009 entitled “The Final Time,” describing the “final time” she will have certain experiences and ending with, “The final time I draw a breath” (Ex. 27). Ms. Iacovelli’s suggestion that her corresponding messages to Dr. Eppley were fabricated is

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not supported by the record and is implausible. The record supports Dr. Eppley’s allegation that Ms. Iacovelli threatened to commit suicide on April 18, 2009. 12. The record further supports Dr. Eppley’s allegation that Ms. Iacovelli threatened

to publicize her suicide in an effort to inflict greater damage to Dr. Eppley’s reputation and business. In addition to the messages stating her death will “destroy” Dr. Eppley (Verified Complaint Ex. 19) and asserting that “[s]ilence will not follow my death” (Ex. 22), she made repeated statements on her websites and in her internet postings corroborating that plan. In one posting, she describes a “morbid” suicide scenario and states, “Should I resort to the above action, a video camera will capture the gruesome event.” Ex. 1. In other postings, she states that “I have made the most detailed arrangements for my own autopsy” (Ex. 14), that “I will not be silenced during my life time, and certainly not after my death” (Ex. 23), and that Mr. Bergeron will “set the record straight” after her story reaches an unhappy conclusion (Ex. 25). In conjunction with her internet postings and messages threatening to commit suicide on April 18, 2009, the record supports the conclusion that Ms. Iacovelli intended to publicize her planned suicide in an effort to damage Dr. Eppley and his business. 13. The record also supports Dr. Eppley’s claims under the Lanham Act, for

violations of his trademark rights. His name, “Dr. Barry Eppley,” has been registered as a trademark pursuant to federal law. The record shows that Ms. Iacovelli has utilized his name in tabs, links, websites and throughout her campaign of internet disparagement, with the conscious design of driving internet traffic away from Dr. Eppley’s authorized websites and toward her own. See Verified Complaint Ex. 17 (“You would be surprised at the number of hits my website and blog receive from people searching your name”); Ex. 18 (“my website went from less than 100 hits per day to over 1,000 every day since a certain popular website posted my photo and

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link”; also describing referring links to website and Google searches using Dr. Eppley’s name). In addition, Ms. Iacovelli’s associates, acting on her behalf and in coordination with her, have created websites with domain names that include Dr. Eppley’s name, with the conscious design of driving internet traffic away from Dr. Eppley’s authorized websites and toward their own and Ms. Iacovelli’s. See Affidavit of Counsel Ex. H (promising to use “full force” of website publicity with “global reach”); Second Affidavit Ex. A (“more and more each day, exponentially increasing the instances of people searching for Dr. Barry Eppley and finding adverse information”); id. Ex. C (www.eppleyplasticsurgerysucks.com as of April 6, 2009); id. Ex. D (link on Ms. Iacovelli’s website to www.eppleyplasticsurgerysucks.com); id. Ex. E (promising internet equivalent of “Weapon of Mass Destruction” through search engine optimization of www.barryeppleyplasticsurgeon.com); Third Affidavit Ex. B (promising to continue maintaining www.eppleyplasticsurgerysucks.com); id. Ex. C (www.eppleyplasticsurgery.com as of April 9, 2009); id. Ex. E (page from www.barryeppleyplasticsurgeon.com); id. Ex. F (promising to create new “Eppley sites” every twelve hours). As substantiated by Dr. Eppley’s testimony, there have also been several instances in which Ms. Iacovelli or her agents have made internet publications that use his name and appear to have originated with him, with the effect of driving internet traffic away from his authorized sites and toward their sites containing false and misleading statements about him. The record supports the conclusion that Ms. Iacovelli has violated the protected interests of Dr. Eppley in his trademarked name. See Lanham Act §32, 15 U.S.C. §1114; Lanham Act §43(a), (d), 15 U.S.C. §1125(a), (d). 14. Notwithstanding Ms. Iacovelli’s contention with respect to the trademark claim

that her internet publications have been conducted on a non-profit basis, Dr. Eppley has demonstrated a likelihood of success in showing Ms. Iacovelli and her associates have acted, at

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least in part, with a commercial purpose. The record indicates an effort to elevate Ms. Iacovelli to celebrity status by publicizing her as the “star” of an HBO documentary (see Second Affidavit Ex. C) and to promote the market for the book about her that Mr. Bergeron is writing (see Verified Complaint Ex. 25; Third Affidavit Ex. G (“now you have created a new chapter I could never have even dreamed of”)). Ms. Iacovelli’s submissions indicate that her internet publications are regarded by her as her primary occupation, and that she operates them on a “sole-proprietor” basis. See Answer at p.15 ¶1 (an admission by her though not effective in pleading a counterclaim). The record therefore supports an inference that the use of Dr. Eppley’s trademarked name was made in support of an existing non-profit enterprise and in anticipation of future commercial gain. See United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86, 89-92 (2d Cir. 1997), cert. denied, 523 U.S. 1076 (1998) (holding Lanham Act applicable to non-profit organization; “The Lanham Act has thus been applied to defendants furnishing a wide variety of non-commercial public and civic benefits.”); Gideons International, Inc. v. Gideon 300 Ministries, Inc., 94 F.Supp.2d 566, 577 (E.D. Pa. 1999) (“The non-profit or non-business character of the parties does not affect the proper trademark analysis.”). 15. In all respects, the Court concludes that Dr. Eppley has demonstrated a strong

likelihood of success on the merits of his claims. 16. The Court further concludes that Dr. Eppley has demonstrated irreparable harm

with no adequate remedy at law. As Mr. Bergeron stated in an April 11, 2009 e-mail, “The hardest thing in the world to regain after its been lost is your reputation.” The persistent internet defamation by Ms. Iacovelli, the express threats to utilize adverse internet publicity to cause mounting pressure on Dr. Eppley to drop or settle the litigation, and the overt threats that the

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reputations Dr. Eppley, his business, his counsel, his counsel’s law firm and the Court will be ruined, taken together, establish the presence of extraordinary circumstances justifying injunctive relief. See Barlow, 744 N.E.2d at 6-9 (affirming preliminary injunction in defamation and tortious interference case where economic injury could not be calculated with certainty and harm to reputation was irreparable). Violations of trademark rights, furthermore, are presumed to inflict irreparable harm warranting the issuance of a preliminary injunction. See Ty, 237 F.3d at 902-03 (affirming grant of preliminary injunction in trademark case; “These type of injuries are presumed to be irreparable”). 17. The balance of harms in this case favors Dr. Eppley, whose reputation has been

threatened with ruinous publicity based on false and defamatory accusations, as opposed to Ms. Iacovelli, who is merely being prevented during the pendency of this action from publicizing false and reckless accusations, from misusing suicide threats to generate publicity against Dr. Eppley, and from attempting to leverage litigation concessions and undermine Dr. Eppley’s right to a fair disposition of his claims through extra-judicial publicity. In these circumstances, her invocation of the First Amendment as a justification for her conduct is insufficient to support a denial of preliminary injunctive relief. See 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”); Aberdeen Apartments v. Cary Campbell Realty Alliance, Inc., 820 N.E.2d 158, 168-70 (Ind. App.), transfer denied, 841 N.E.2d 178 (Ind. 2005) (rejecting argument that preliminary injunction against unlawful trespass would be an improper prior restraint); Barlow, 744 N.E.2d at 9-10 (rejecting argument that preliminary injunction in defamation case was inconsistent with the First Amendment); United States v. Brown, 218 F.3d 415, 423-29 (5th Cir. 2000), cert. denied,

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531 U.S. 1111 (2001) (affirming “gag order” on attorneys, parties and witnesses in case; noting restrictions on extra-judicial publicity by trial participants is subject to less stringent standard than restrictions on the media, and gag order on trial participants was appropriate where “extrajudicial statements by the parties would materially prejudice the court’s ability to conduct a fair trial”). 18. The public interest is consistent with the issuance of a preliminary injunction in

these circumstances, and would not be served by further proliferation of defamatory statements on the internet and by attempts to extort litigation concessions through threats to reputation during the pendency of this action. 19. A security bond is not required in this case, in light of Ms. Iacovelli’s assertions

that she has been conducting her website operations on a non-profit basis and in the absence of any evidence that she would suffer any economic injury as a result of the injunctive relief sought by Dr. Eppley.

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IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court, pursuant to Fed. R. Civ. P. 65(a): That Defendant, Lucille Iacovelli, those in active concert and participation with her, and her agents, pending final judgment in this cause and until such time as this action is fully and finally adjudicated, or until otherwise ordered by the Court, shall take no action whatsoever to make, authorize or issue public statements, oral or written, on the internet or otherwise, that either: (a) describe, depict or concern any suicide plans by Defendant to the extent such statements are tied, directly or indirectly, to Plaintiff, Dr. Barry Eppley; or (b) constitute or include disparaging oral or written statements or related publicity concerning the prior treatment of Defendant by Plaintiff, including the aftermath of such treatment and any steps Plaintiff may have taken to prevent Defendant from carrying out her suicide plans by alerting mental health authorities and to forestall publication and dissemination of such plans by seeking relief from this Court.

Date: April 17, 2009

______________________________ Sarah Evans Barker, Judge United States District Court Southern District of Indiana

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DOCUMENT INFO
Description: EPPLEY, MD, DMD v. IACOVELLI, Judge Sarah Evans Barker, corruption, judicial review, Indiana Kangaroo Court, Judge Recusal, Lanham Act Fraud: www.eppleyplasticsurgerysucks.com, www.lewis-kappessucks.com