Obeidallah v. Anglin et al
Filing
39
ORDER granting 31 Motion Discovery in Aid of Default Judgment against Defendant Moonbase Holdings, LLC. Plaintiff is ORDERED to file a written status report by 10/1/2018, unless he has filed a motion for default judgment against Defendant Moonbase Holdings, LLC prior to that date. Signed by Magistrate Judge Elizabeth Preston Deavers on August 20, 2018. (jlk)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEAN OBEIDALLAH,
Plaintiff,
Case No. 2:17-cv-720
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers
v.
ANDREW B. ANGLIN, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff’s Motion for Limited
Discovery in Aid of Default Judgment against Defendant Moonbase Holdings, LLC. (ECF
No. 31.) For the reasons that follow, Plaintiff’s Motion is GRANTED.
I.
Plaintiff, an American Muslim, is a comedian and commentator who hosts a national
daily radio show and resides in New York. (Complaint ¶ 11, ECF No. 1 (“Compl.”).) Defendant
Andrew B. Anglin is the founder and publisher of a website named the Daily Stormer, which is a
popular white nationalist website. (Id. at ¶¶ 12, 21.) Defendant Moonbase Holdings, LLC
(“Defendant Moonbase”) is an Ohio, for-profit, limited liability corporation registered by
Defendant Anglin that assists in the operation of the Daily Stormer. (Id. at ¶ 13.) Plaintiff
alleges that on June 1, 2017, the Daily Stormer published an article authored by Defendant
Anglin entitled, “Dean Obeidallah, Mastermind Behind Manchester Bombing, Calls on Trump to
Declare Whites the Real Terrorists” (“the Article”). (Id. at ¶¶ 21–22.) Defendants also
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republished the Article on Twitter. (Id. at ¶ 21.) The Article referred to Plaintiff as an “ISIS
terrorist” and “the mastermind” behind the terrorist attack in Manchester, England. (Id. at ¶ 23.)
The Article asserted that Plaintiff is “a confessed terrorist wanted by Europol, MI-5, Interpol and
a litany of other international authorities.” (Id.) Defendants also fabricated Twitter messages
and included these messages in the Article to convince the Article’s readers that Plaintiff had
admitted a role in the Manchester bombing. (Id. at ¶¶ 27–45.) Plaintiff, however, is not
affiliated with ISIS, is not a terrorist, is not wanted by any law enforcement authorities, and had
no role in the Manchester bombing. (Id. at ¶¶ 23, 34.) In response to the Article, several
commentators, believing the statements and messages within the Article, threatened Plaintiff
with violence and/or death. (Id. at ¶¶ 46–58.)
On August 16, 2017, Plaintiff filed this action, asserting claims for libel, false light
invasion of privacy, intentional infliction of emotional distress, negligent infliction of emotional
distress, common-law misappropriation of name and likeness, and civil conspiracy. (See
generally Compl.) After Plaintiff effected service of process as to Defendant Moonbase and it
failed to enter an appearance, file a responsive pleading, or seek an extension of time to answer
or move in response to the Complaint, Plaintiff applied for entry of default. (ECF No. 25.) On
January 29, 2018, the Clerk entered default against Defendant Moonbase. (ECF No. 26.)1
Thereafter, Plaintiff filed his Motion for Limited Discovery in Aid of Default Judgment against
Defendant Moonbase Holdings, LLC. (ECF No. 31.)
Although not the subject of Plaintiff’s present Motion, the Court notes that the Clerk
entered default against Defendant Anglin on July 3, 2018. (ECF No. 38.)
1
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II.
Plaintiff, invoking Federal Rule of Civil Procedure 26, seeks expedited discovery to assist
in his ability to file a forthcoming motion for default judgment against Defendant Moonbase.
(ECF No. 31.) Rule 26 prohibits discovery before the Rule 26(f) conference except under certain
circumstances, including when a court orders such discovery. Fed. R. Civ. P. 26(d)(1). Thus,
Rule 26(d) vests the district court with discretion to order expedited discovery. See Lemkin v.
Bell’s Precision Grinding, No. 2:08-CV-789, 2009 WL 1542731, at *1 (S.D. Ohio June 2, 2009)
(citing Qwest Communs. Int’l, Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo.
2003)). Courts considering a motion for expedited discovery typically apply a good cause
standard. Lemkin, 2009 WL 1542731, at *2; see also 8A Fed. Prac. & Proc. Civ. § 2046.1 (3d
ed.) (“Although the rule [26] does not say so, it is implicit that some showing of good cause
should be made to justify such an order, and courts presented with requests for immediate
discovery have frequently treated the question whether to authorize early discovery as governed
by a good cause standard.”). The burden of demonstrating good cause rests with the party
seeking the expedited discovery. Lemkin, 2009 WL 1542731, at *2 (citations omitted).
Another court in this District previously discussed the following considerations when
determining whether good cause exists:
“Good cause may be found where the need for expedited discovery, in
consideration of the administration of justice, outweighs the prejudice to the
responding party.” Arista Records, LLC v. Does 1–15, 2:07–cv–450, 2007 WL
5254326, at *2 (S.D. Ohio May 17, 2007). Good cause is often found in cases
alleging infringement, unfair competition, or where evidence may be lost or
destroyed with time. Caston v. Hoaglin, No. 2:08–cv–200, 2009 WL 1687927, at
*2 (S.D. Ohio June 12, 2009). The scope of the requested discovery is also relevant
to a good cause determination. Russell v. Lumpkin, No. 2:10–cv–314, 2010 WL
1882139, at *2 (S.D. Ohio May 11, 2010). Ultimately, the Court retains broad
discretion in establishing the timing and scope of discovery [(citing Lemkin, 2009
WL 1542731, at *2)].
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Luxottica Retail N. Am., Inc. v. Vision Serv. Plan, No. 1:14–cv–581, 2014 WL 4626015, at *3
(S.D. Ohio Sept. 12, 2014) (acknowledging further that “there is little binding authority on the
issue of expedited discovery in the Sixth Circuit, and district courts are split on the appropriate
standard”); see also N. Atl. Operating Co., Inc. v. JingJing Huang, 194 F. Supp. 3d 634, 637
(E.D. Mich. 2016) (“Within this Circuit, district courts have found good cause for granting
expedited discovery when the true identities of the defendants are unknown, when the moving
party alleges infringement, when the scope of the discovery sought is narrow, and when
expedited discovery would substantially contribute to moving the case forward.”); Barrette
Outdoor Living, Inc v. Does, No. 1:16 CV 914, 2016 WL 1588672, at *2 (N.D. Ohio Apr. 20,
2016) (“Courts consider several factors in determining if good causes exists, including: (1) the
danger that the information sought will be lost or destroyed, (2) whether the discovery would
substantially contribute to moving the case forward, and (3) the scope of the information
sought.”); Malibu Media, LLC v. Doe, No. 2:15-cv-488, 2015 WL 12732852, at *1 (S.D. Ohio
Feb. 4, 2015) (finding good cause in the context of a copyright infringement case where the
plaintiff showed that it could not meet its service obligation under Rule 4(m) without the
requested discovery from a non-party internet service provider to discover a Doe defendant’s
identity).
Outside of this circuit, courts have found good cause where a defendant defaulted and
“absent limited discovery to obtain information relevant to the issues of class certification and
damages, [the plaintiff] cannot pursue his claims in this action. Since [the defendant] has not
appeared in this action and is in default, [the plaintiff] is effectively precluded from engaging in
a Rule 26(f) conference.” Sheridan v. Oak Street Mortg., LLC, 244 F.R.D. 520, 522 (E.D. Wis.
2007) (authorizing the plaintiff to seek limited discovery from defaulting defendant); see also
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Twitch Interactive, Inc. v. Johnston, No. 16-cv-03404, 2017 WL 1133520, at *2 (N.D. Cal. Mar.
27, 2017) (“Good cause may also exist in cases where a defendant has failed to appear, resulting
in the entry of default against the defendant, and the plaintiff is in need of evidence to establish
damages.”). Another court has concluded that good cause existed to permit limited discovery of
a non-party in order to obtain information relating to the plaintiff’s damages. See Antoine v.
Boutte, No. 15-561, 2016 WL 6138252, at *3–4 (M.D. La. Oct. 20, 2016) (“Under the good
cause analysis, ‘some courts have allowed limited, expedited discovery when failing to do so
would have substantially impacted the case from progressing on the court’s docket.’” (citations
omitted) (collecting cases)).
In addition, although not specifically considering the good cause standard, other courts
have authorized limited expedited discovery in connection with the filing of a motion for default
judgment. See, e.g., Alstom Power, Inc. v. Graham, No. 3:15-cv-174, 2016 WL 354754, at *3
(E.D. Va. Jan. 27, 2016) (recognizing that courts have “broad discretion” to supervise discovery,
including that Rule 26(d) authorizes discovery in the absence of a Rule 26(f) conference, and
permitting discovery before the filing of a motion for default judgment because doing so “best
serves judicial economy” where the plaintiff “will have to make the appropriate showing of
damages in its eventual motion for default judgment”); see also Nutrition Distrib. LLC v. Ironx
LLC, No.: 17-CV-839, 2017 WL 4391709, at *2 (S.D. Cal. Oct. 3, 2017) (granting the plaintiff
leave to conduct “discovery to ascertain the existence and amount of damages” after the entry of
default and in connection with the plaintiff’s forthcoming motion for default judgment).
Similarly, some courts in this circuit, invoking Federal Rule of Civil Procedure 55(b), have
authorized discovery as to damages in connection with a motion for default judgment. See, e.g.,
Provectus Biopharm., Inc. v. Dees, No. 3:16-cv-222, 2016 WL 8738436, at *3 (E.D. Tenn. Aug.
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29, 2016) (“Because the extent of Provectus’s damages is not fully known at this juncture, the
Court will GRANT Provectus’s motion for leave to conduct discovery (Doc. 22), and will
RESERVE RULING on Provectus’s motion for default judgment (Doc. 21) pending an
evidentiary hearing on the amount of damages.”) (emphasis in the original); Allied Enter., Inc. v.
Brillcast, Inc., No. 1:15–cv–749, 2015 WL 13122945, at *3 (W.D. Mich. Nov. 17, 2015)
(granting motion for default judgment in part for certain period of time and ordering that the
plaintiff “shall conduct discovery in accordance with the rules governing non-party witnesses to
determine the amount of unpaid commissions due for the [particular] period”); Tr. of Ohio
Bricklayers Health & Welfare Fund v. Workman Masonry, LLC, No. 1:09cv482, 2010 WL
170422, at *1 (S.D. Ohio Jan. 15, 2010) (adopting recommendation that an unopposed motion
for default judgment be granted in part and ordering the defaulting defendant to “cooperate with
Plaintiffs in regards to whatever other discovery deemed necessary in this case to calculate any
and all damages due and owing Plaintiffs”); DIRECTV, Inc. v. Guzzi, 308 F. Supp. 2d 788,790–
91 (E.D. Mich. 2004) (granting default judgment as to liability only and, after noting that the
court “is unable to make a meaningful individualized assessment of damages[,]” authorizing
limited discovery “for the purpose of developing the factual circumstances necessary to allow the
court to properly exercise its discretion in assessing a final damage award”).
III.
The Court has previously detailed the diligent efforts undertaken by Plaintiff over several
months to locate and serve Defendants with process in this case. (ECF Nos. 19, 34.) As set forth
above, Plaintiff ultimately effected service on both Defendants. When neither Defendant
responded to the Complaint, Plaintiff applied for, and the Clerk entered, default against both
Defendants. (ECF Nos. 26, 38.) In his present Motion, Plaintiff details his extensive efforts to
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locate publicly available facts that reveal Defendant Moonbase’s involvement with / connection
to the publication and re-publication of the Article as well as how it assisted in the Daily
Stormer’s financing and operations. (ECF No. 31 at PAGEID ## 414–21 (citing multiple
exhibits, including declarations, attached thereto).) Plaintiff contends that good cause exists to
permit limited discovery from two third parties, Greg Anglin (an Ohio resident and Defendant
Anglin’s father) and Zappitelli CPAs Inc. (“Zappitelli CPAs”) (a certified public accounting
business), to assist him in a forthcoming motion for default judgment against Defendant
Moonbase. (Id. at 413, 422–29) Plaintiff explains that he seeks this discovery to enable him to
make showings regarding the following: “(1) the need for immediate entry of default judgment
against Defendant Moonbase; (2) how liability should be apportioned among Defendant
Moonbase and the other defendants; and (3) the extent of Mr. Obeidallah’s damages attributable
to Defendant Moonbase.” (Id. at PAGEID # 413.)
The Court agrees that good cause exists for the discovery Plaintiff seeks. As set forth
above, both Defendants are in default. (ECF Nos. 26 and 38.) In light of this posture, and
particularly considering that Plaintiff was unable to identify an address for Defendant Anglin
who was served by publication (ECF Nos. 34 and 36), it is unlikely that Defendants would
respond to discovery requests. Moreover, as to the first showing, Plaintiff notes that the
exigency of a defaulting defendant’s insolvency, or impending insolvency, warrants the
immediate entry of default judgment. (Id. at PAGEID # 423 (citing, inter alia, Lucas v. Jolin,
No. 1:15-cv-108, 2015 WL 7292836 (S.D. Ohio Oct. 29, 2015), adopted by 2015 WL 7276808
(S.D. Ohio Nov. 18, 2015); Lucas v. Telemarketer Calling from (407) 476-5680, No. 1:12-cv00630-TSB-SKB, 2014 WL 5308573, at *2 (S.D. Ohio Oct. 16, 2014)).) Plaintiff has some
evidence that Defendant Moonbase is “on the cusp of insolvency,” but needs additional
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information to establish such insolvency. (Id. at PAGEID ## 422–25 (citing sources of
information shedding light on Defendant Moonbase’s financial position).) Plaintiff contends that
he is unable to obtain the necessary information from Defendants given the difficulties in
effecting service of process on them and that Defendant Moonbase is in default. (Id. at PAGEID
# 426.) According to Plaintiff, Greg Anglin is likely to have relevant information as to
Defendant Moonbase’s solvency because Greg Anglin is a legally-authorized representative of
Defendant Moonbase who is familiar with its operations, including its finances; his office was
originally listed as the address at which all service of process for Defendant Moonbase should be
directed and the Daily Stormer’s readership was likewise directed to send cash, checks, and
money orders to Greg Anglin’s office; evidence suggests Greg Anglin regularly retrieved mail
from that office, possibly donations on Defendant Moonbase’s behalf; Greg Anglin signed the
trade name registration for “Andrew Anglin” as Defendant Anglin’s “authorized representative”;
and Defendant Anglin has directed the Daily Stormer’s readership to send donation to PO Box
208 which Greg Anglin, as the only person authorized to retrieve mail from that post office box,
apparently received on behalf of Defendant Moonbase. (Id. at PAGEID ## 426–27; see also id.
at PAGEID ## 414–21.)
Plaintiff further persuades this Court that Zappitelli CPAs likely has information related
to Defendant Moonbase’s insolvency because Zappitelli CPAs is a legally a legally-authorized
representative of Defendant Moonbase. (Id. at PAGEID # 427.) Zappitelli CPAs appears to
have been Defendant Moonbase’s longtime certified public accountant, and, in light of that
position and that its advertised services including cashflow analysis, forecasts/projects, business
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appraisals and valuations, bookkeeping services, and preparation of federal, state, and city tax
returns, it likely possesses information regarding Defendant Moonbase’s finances. (Id.)2
Plaintiff has also persuaded the Court that good cause exists as to the second and third
showings regarding how liability and damages should be apportioned between Defendant
Moonbase and Defendant Anglin, particularly considering the extent that Defendant Moonbase
published and republished the Article. (Id. at PAGEID ## 427–29.) As Plaintiff points out, the
Court will have to determine what portion of liability should be apportioned among the
Defendants in a forthcoming motion for default judgment. (Id. (citing, inter alia, Munhwa
Broad. Corp. v. Create New Tech. Co., No. 2:14-cv-04213, 2015 WL 12749448, at *5 (C.D. Cal.
Sept. 2, 2015) (granting default judgment against one of several defendants where the defendant
was jointly and severally liable and calculating the defendant’s share of the damages by
referencing plaintiff’s expert testimony)).) Plaintiff persuades this Court that Greg Anglin, who
executed numerous documents on behalf of Defendant Moonbase and may have received mail
directed to it, is likely knowledgeable about Defendant Moonbase’s role in the publication and
republication of the Article. (Id. at PAGEID ## 414–21, 428 (citing various attached exhibits).)
In short, the Court finds good cause to permit Plaintiff to issue document subpoenas
and/or deposition subpoenas to Greg Anglin and Zappitelli CPAs / Jon J. Zappitelli CPA, Inc.
regarding the following topics: (1) the need for immediate entry of default judgment against
Defendant Moonbase; (2) how liability should be apportioned among the Defendants; and (3) the
extent of Plaintiff’s damages attributable to Defendant Moonbase. See Lemkin, 2009 WL
Plaintiff further represents that Zappitelli CPAs is a fictious name under which the
registrant, Jon J. Zappitelli, CPA, Inc. (“Jon J. Zappitelli CPA”), conducts business. (Id. at
PAGEID # 427 n.9; ECF No. 31-1 at PAGEID # 435 n.1.) Plaintiff therefore explains that he
would direct the limited discovery requested to Jon J. Zappitelli CPA. (Id.)
2
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1542731, at *2; Luxottica Retail N. Am., Inc., 2014 WL 4626015, at *3; Sheridan, 244 F.R.D. at
522; Twitch Interactive, Inc., 2017 WL 1133520, at *2; Antoine, 2016 WL 6138252, at *3–4; cf.
Alstom Power, Inc., 2016 WL 354754, at *3; Nutrition Distrib. LLC, 2017 WL 4391709, at *2;
Provectus Biopharm., Inc., 2016 WL 8738436, at *3.
In reaching this conclusion, the Court has considered Plaintiff’s proposed document
requests and deposition topics directed to Greg Anglin and Zappitelli CPAs / Jon J. Zappitelli
CPA, Inc. (ECF No. 31-1.) As the Court has previously advised Plaintiff, see Opinion and
Order, ECF No. 34, Plaintiff is CAUTIONED to carefully articulate requests to avoid objections
based on scope and relevance.
IV.
In sum, Plaintiff’s Motion for Limited Discovery in Aid of Default Judgment against
Defendant Moonbase Holdings, LLC (ECF No. 31) is GRANTED consistent with the foregoing.
Plaintiff is ORDERED to file a written status report by OCTOBER 1, 2018, unless he
has filed a motion for default judgment against Defendant Moonbase Holdings, LLC prior to that
date.
IT IS SO ORDERED.
Date: August 20, 2018
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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