Obeidallah v. Anglin et al

Filing 47

ORDER AND OPINION: Plaintiffs Motion for Additional Discovery in Aid of Default Judgment 46 is GRANTED IN PART and DENIED IN PART. Plaintiff is DIRECTED to file with the Court, ex parte and under seal, the complete subpoena with the full name of t he financial institution to which it will be issued within FOURTEEN (14) DAYS of the date of this Order. The Court will then determine whether to keep the document under seal. Signed by Magistrate Judge Elizabeth Preston Deavers on December 21, 2018. (jlk)

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 Additional
Discovery in Aid of Default Judgment. (ECF No. 46.) For the reasons that follow, Plaintiff’s
Motion is GRANTED IN PART and DENIED IN PART.
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.)
Thereafter, Plaintiff filed his Motion for Limited Discovery in Aid of Default Judgment against
Defendant Moonbase Holdings, LLC. (ECF No. 31.) The Court granted that Motion on August
20, 2018. (ECF No. 39.) In the interim, Plaintiff effectuated service of process by publication
on Defendant Anglin. (ECF No. 36.) When Defendant Anglin failed to respond, Plaintiff
applied for and the Clerk entered default against him. (ECF Nos. 37 & 38.)

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In its Order granting Plaintiff’s Motion for Limited Discovery in Aid of Default
Judgment, the Court acknowledged Plaintiff’s good cause for limited third-party discovery in
order to determine “(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.” (Order, ECF No. 39, at p. 9.) As a
result of that previously-authorized discovery, Plaintiff represents that he has now identified
certain financial institutions and accounts used by Defendants Anglin and Moonbase to funnel
contributions from the Daily Stormer’s readership and pay for the Daily Stormer’s operations.
Plaintiff posits that the financial details of these accounts are relevant to the second and third
points for which the Court authorized discovery and to the calculation of appropriate
compensatory and punitive damages for Defendants’ alleged wrongful actions. Plaintiff,
therefore, seeks leave to take additional, limited, third-party discovery from these financial
institutions in aid of establishing a sum-certain of default judgment damages.
II.
Plaintiff, invoking Federal Rule of Civil Procedure 26, seeks expedited discovery to assist
in his ability to support his contemporaneously-filed Motion for Default Judgment against
Defendants Anglin and Moonbase. (ECF No. 46.) 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;

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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).
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
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

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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.
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.”); 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 and
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

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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.
Plaintiff took the deposition of Greg Anglin, who is Defendant Andrew Anglin’s father,
on October 31, 2018. Greg Anglin is Defendant Andrew Anglin’s father. As relevant here with
respect to Plaintiff’s request to issue subpoenas to three financial institutions, during that
deposition, Greg Anglin described how readers of the Daily Stormer have directed hundreds of
thousands of dollars in financial contributions to Defendants Andrew Anglin and Moonbase.
(ECF No. 46-5, G. Anglin Tr. 26:10-22 (estimating average monthly contributions of $1,500
until 2017, “and then there as a spike in the deposits”), 27:14-28:4 (estimating total contributions
from Daily Stormer readership of $100,000 to $125,000). The funds were initially directed to
Greg Anglin’s office suite at 6827 N. High Street, Suite 121, Worthington, Ohio 43085 (“Suite
121”). In 2017, Greg Anglin established Post Office Box 208, Worthington, Ohio 43085 (“PO
Box 208”) on Moonbase’s behalf, to which the Daily Stormer redirected its readers’
contributions. (Id. at 107:14-108:7; 116:3-13.)
From 2013 to December 2017, Greg Anglin collected contributions that readers of Daily
Stormer directed to “Andrew Anglin” at Suite 121 and PO Box 208. (Id. at 26:2-9.) Greg Anglin
most often deposited the funds, approximately once a month, into an account at a bank (“Bank

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1“)1 in the name of “Andrew Anglin.” (Id. at 24:16-25:2; 25:8-11.) If the contributions were
foreign currency, Greg Anglin would deposit that currency into his personal account at another
bank (“Bank 2”), and then write a check to Defendant Anglin, which he then deposited at Bank
1. (Id. at 31:2-14.) Beginning in 2017, Greg Anglin deposited contributions from the Daily
Stormer’s readers in United States currency into his personal account at Bank 2, and then wrote
checks to the account of “Andrew Anglin” at Bank 1. (Id. at 31:15-32:13. Greg Anglin would
also use the contributions directed to “Andrew Anglin” as “reimbursement” for services that he
would perform on behalf of the Defendants, including those relating to the Daily Stormer. (Id. at
49:7-51:25 (Greg Anglin “reimbursed” for paying a fee to register Moonbase with Ohio
Secretary of State by keeping cash from Daily Stormer contributions), 54:11-55:3 (Greg Anglin
“reimbursed” for paying a fee to register “Andrew Anglin” as trade name for Moonbase). Greg
Anglin would pay fees associated with those services from his personal bank account at Bank 2
or his personal credit card before seeking such “reimbursement.” (Id. at 52:12-52:25 (check
from Bank 2 to pay fee associated with filing Moonbase’s Articles of Organization), 53:23-55:6
(potential check from Bank 2 to pay for Moonbase’s registration of trade name “Andrew
Anglin”), 80:20-81:22 (Greg Anglin’s personal credit card to register domain
www.dailystormer.com).
Greg Anglin “borrowed” $60,038 from Defendant Anglin for a “real estate rehab.” He
testified that he paid it back by writing a check from his personal account at another bank (“Bank
3”) and depositing it into the account for “Andrew Anglin” at Bank 1. (Id. at 120:8-121:6 (Greg
Anglin “borrowed” $60,038), 123:4-23 (check from Bank 3 to Bank 1).

Plaintiff indicates that he has not named the financial institutions that have likely
received donations from Defendants Anglin and Moonbase due to the controversial nature of the
Daily Stormer.
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Based on these facts, Plaintiff seeks the following discovery:
I.

BANK 1

A.

Documents to Be Produced
1.

Documents sufficient to show the transactional information
during the Relevant Period,2 including dollar value, date,
deposit slips, and images, of any checks deposited into or
withdrawn from any account associated with: (a) Andrew B.
Anglin; or (b) Moonbase Holdings, LLC.

2.

Documents sufficient to show the transactional information
during the Relevant Period, including dollar value, date, and
deposit slips, of any cash deposited into or withdrawn from
any account associated with: (a) Andrew B. Anglin; or (b)
Moonbase Holdings, LLC.

3.

Documents sufficient to show the history of account
balances and transactions during the Relevant Period,
including amounts that have been deposited or withdrawn,
and merchant names and transaction descriptions, for any
account associated with: (a) Andrew B. Anglin; or (b)
Moonbase Holdings, LLC.

II.

BANK 2

A.

Documents to Be Produced
1.

Documents sufficient to show the transactional information
during the Relevant Period, including dollar value, date,
recipient, and images, of any checks withdrawn from or
deposited into any account associated with Gregory Mark
Anglin where the transaction involved one or more of the
following parties: (a) Andrew B. Anglin; (b) Moonbase
Holdings, LLC; (c) the Daily Stormer; (d) GoDaddy; (e)
Zappitelli CPA Inc.; (f) the U.S. Postal Service; or (g) the
Ohio Secretary of State.

2.

Documents sufficient to show the transactional information
during the Relevant Period, including dollar value, date, and
any associated deposit slips or receipts, of any cash

Plaintiff proposes defining “Relevant Period,” as used in each request, as March 1, 2013
to the present.
2

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withdrawn from or deposited into any account associated
with Gregory Mark Anglin.
3.

Documents sufficient to show the transactional information
during the Relevant Period, including dollar value, date,
merchant name, and description, of any credit or debit
account associated with Gregory Mark Anglin where the
transaction involved one or more of the following parties: (a)
Andrew B. Anglin; (b) Moonbase Holdings, LLC; (c) the
Daily Stormer; (d) GoDaddy; (e) Zappitelli CPA Inc.; (f) the
U.S. Postal Service; or (g) the Ohio Secretary of State.

III.

BANK 3

A.

Documents to Be Produced
1. Documents sufficient to show the transactional information
during the Relevant Period, including dollar value, date,
recipient, and images, of any checks withdrawn from or
deposited into any account associated with Gregory Mark
Anglin where the transaction involved one or more of the
following parties: (a) Andrew B. Anglin; (b) Moonbase
Holdings, LLC; (c) the Daily Stormer; (d) GoDaddy; (e)
Zappitelli CPA Inc.; (f) the U.S. Postal Service; or (g) the Ohio
Secretary of State.
2. Documents sufficient to show the transactional information
during the Relevant Period, including dollar value, date, and any
associated deposit slips or receipts, of any cash withdrawn from
or deposited into any account associated with Gregory Mark
Anglin.

3. Documents sufficient to show the transactional information
during the Relevant Period, including dollar value, date,
merchant name, and description, of any credit or debit account
associated with Gregory Mark Anglin where the transaction
involved one or more of the following parties: (a) Andrew B.
Anglin; (b) Moonbase Holdings, LLC; (c) the Daily Stormer; (d)
GoDaddy; (e) Zappitelli CPA Inc.; (f) the U.S. Postal Service;
or (g) the Ohio Secretary of State.
(Motion, Exhibit 2 (ECF No. 46-3).) Plaintiff provides the proposed requests for information,
but “[f]or the sake of brevity,” he did not provide “definitions, instructions, and other portions of
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the proposed subpoenas which are ancillary to assessing whether the requests are narrowly
tailored and minimize burden.” (Id. at PAGEID # 851.) Plaintiff offers to provide “fuller
versions of the subpoenas” upon request.
Plaintiff has demonstrated good cause for the discovery he seeks as to Bank 1, but not for
the personal accounts of Greg Anglin at Bank 2 and Bank 3. As set forth above, Greg Anglin
testified that he would deposit any contributions directed to Andrew Anglin and the Daily
Stormer into Andrew Anglin’s account at Bank 1. If Greg Anglin received currency, he would
put it into his personal accounts but then write a check for the amounts into Andrew Anglin’s
account at Bank 1. When he “borrowed” a large sum of money, he paid it back by depositing a
check into Andrew Anglin’s account at Bank 1. Put another way, the vast majority of the
transactions Plaintiff seeks to track would have been recorded by Bank 1. Plaintiff has not
justified the need to audit the personal banking accounts of a non-party to this lawsuit.
As to Bank 1, Plaintiff has demonstrated good cause to take limited discovery in aid of
establishing a sum-certain of default-judgment damages. Plaintiff has established the need for
the discovery he seeks in order to quantify the amount of compensatory and punitive damages
attributable to and apportionable between Defendants Anglin and Moonbase. Plaintiff seeks
punitive damages for the false and defamatory actions and statements made by Defendants
Anglin and Moonbase. As Plaintiff points out, the Supreme Court of Ohio has noted that the
purposes of punitive damages are “(1) to punish the wrongdoer, and (2) to deter others from
similar conduct.” Wagner v. McDaniels, 459 N.E.2d 561, 564 (Ohio 1984). Whether a damages
award succeeds in punishing a wrongdoer or deterring others depends on the scale of the
damages award relative to the net worth of the defendant, and in particular, to the amount of
profit that that wrongful action generated for the wrongdoer. See id. (holding that “evidence of a

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defendant’s net worth may be considered by the fact-finder in determining appropriate punitive
damages”). In this case, Defendants Anglin and Moonbase likely received over a hundred
thousand dollars in contributions from readers of the Daily Stormer. (G. Anglin Tr. at 27:2228:4.) Defendant Anglin has used his wrongful actions against Plaintiff as the basis to request
additional contributions from the Daily Stormer readers.3 The requested discovery from Bank 1
regarding the amount of money received by Defendants Anglin and Moonbase and the timing of
those payments are relevant to Plaintiff’s ability to craft a reasonable and appropriate damages
request in this case.
In addition to punitive damages, information about the Defendants’ financial conditions
is relevant to the preliminary calculation of damages for Plaintiff’s claims. For instance, as to his
claim for common-law misappropriation of name and likeness, courts have specifically noted
that “the monetary benefit that [defendant] received as a result of a wrongful use of [plaintiff]’s
name is an appropriate (although not exclusive) measure of damages.” James v. Bob Ross Buick,
Inc., 167 Ohio App. 3d 338, 345855 N.E.2d 119, 124 (Ohio Ct. App. 2006).
In short, the Court finds good cause to permit Plaintiff to issue a subpoena to Bank 1
regarding the following topics: (1) the need for the entry of default judgment against Defendants
Anglin and Moonbase; (2) how liability should be apportioned among the Defendants; and (3)
the extent of Plaintiff’s compensatory and punitive damages attributable to Defendants Anglin
and Moonbase. See Lemkin, 2009 WL 1542731, at *2; Sheridan, 244 F.R.D. at 522; Twitch
Interactive, Inc., 2017 WL 1133520, at *2; Antoine, 2016 WL 6138252, at *3–4; cf. Alstom

Defendant Anglin posted on the Daily Stormer “Presumably, even if Dean [Obeidallah]
disappears, the Association of Moslems will still sue me. So send me some money, lmao.” Daily
Stormer, Steven Crowder Allegedly Hunting Manchester Bombing Mastermind Dean Obeidallah
in Isis-Occupied Syria (Aug. 29, 2017)
3

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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 as topics directed to Bank 1. (ECF No. 46-3.) As Plaintiff was previously advised, see
Opinion and Order, ECF No. 34, Plaintiff is CAUTIONED to carefully articulate requests to
avoid objections based on scope and relevance. Moreover, Plaintiff is DIRECTED to file with
the Court, ex parte and under seal, the complete subpoena with the full name of the financial
institution to which it will be issued within FOURTEEN (14) DAYS of the date of this Order.
The Court will then determine whether to keep the document under seal.
IV.
Plaintiff’s Motion for Additional Discovery in Aid of Default Judgment (ECF No. 46) is
GRANTED IN PART and DENIED IN PART consistent with the foregoing.
IT IS SO ORDERED.

Date: December 21, 2018

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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