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IN the UNITED STATES DISTRICT COURT for the WESTERN DISTRICT of VIRGINIA Charlottesville Division

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IN the UNITED STATES DISTRICT COURT for the WESTERN DISTRICT of VIRGINIA Charlottesville Division IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA Charlottesville Division ELIZABETH SINES et al., ) Civil Action No. 3:17-cv-00072 Plaintiffs, ) ) v. ) REPORT & RECOMMENDATION ) JASON KESSLER et al., ) Defendants. ) By: Joel C. Hoppe ) United States Magistrate Judge This matter is before the Court on Plaintiffs’ Unopposed Motion for Entry of Default Against Defendant Nationalist Front (“NF”) Pursuant to Rules 37 and 55 of the Federal Rules of Civil Procedure. ECF No. 918 (“Pls.’ Mot.”); see Order of Jan. 15, 2021 (citing 28 U.S.C. § 636(b)(1)(B)), ECF No. 922. I respectfully recommend that the presiding District Judge grant Plaintiffs’ motion and enter Defendant Nationalist Front’s default under Rule 55(a) because it has abandoned this lawsuit. See Fed. R. Civ. P. 55(a). Plaintiffs’ alternative request that the Court render default judgment against NF is an appropriate discovery sanction under Rule 37(d) because NF twice failed, after being served with proper notice of a Rule 30(b)(6) deposition, to designate a person to appear and answer questions on the association’s behalf. See Fed. R. Civ. P. 37(d)(1)–(3). I. Background Plaintiffs filed this lawsuit on October 11, 2017. Compl., ECF No. 1. Their original complaint named as Defendants numerous individuals and artificial entities, see generally id. ¶¶ 21–45, including Jeff Schoep, a resident of Michigan and leader of Defendant National Socialist Movement (“NSM”), allegedly “the largest neo-Nazi coalition in the United States,” id. ¶ 38, and NF, an unincorporated association allegedly “led by Defendants Schoep, [Matthew] Heimbach, . and [Michael] Hill,” id. ¶ 40. Later that month, Schoep personally accepted service of process 1 on behalf of himself, ECF No. 109, and “Nationalist Front . c/o Jeff Schoep” as a person “authorized to accept,” ECF No. 60. Schoep and NF were among several Defendants who retained James Kolenich, Esq., and Elmer Woodard, Esq., to represent them in this matter beginning in December 2017. ECF No. 131. Plaintiffs amended their complaint in January 2018, again naming Schoep and NF as Defendants to the action. Am. Compl. ¶¶ 37, 39, ECF No. 175. Schoep, NF, and several other Defendants filed a joint Rule 12(b)(6) motion to dismiss the amended complaint. ECF No. 207. NF also filed its own motion to dismiss, see ECF Nos. 105, 205, and an affidavit from Schoep asserting that NF is “not an entity that can be sued” because it “is merely a website that advertises the existence of certain ‘Alt-Right’ groups” and lists goals or “aspirations for interested groups” to follow, ECF No. 105, at 1. See Fed. R. Civ. P. 17(b). The Honorable Norman K. Moon, presiding District Judge, denied the joint Rule 12(b)(6) motion on the merits, Sines v. Kessler, 324 F. Supp. 3d 765, 793–94 (W.D. Va. 2018) (“Sines I”), ECF No. 335, and denied NF’s separate motion as premature because it relied on an affidavit “not properly before the Court” at the pleading stage, id. at 806–07 & n.8.1 See Order of July 9, 2018, ECF No. 336. Messrs. Kolenich and Woodard represented NF in the litigation through early 2019. See, e.g., ECF Nos. 343, 356, 359, 383. That February, Schoep moved to represent himself, ECF No. 418, and the attorneys moved to withdraw as counsel for Schoep, NSM, and NF after the clients terminated their services, ECF No. 420. See Tr. of Mar. 1, 2019 Mot. Hr’g 5, ECF No. 441. On March 4, I granted the motions and directed NSM and NF each to retain a licensed attorney and 1 Judge Moon also explained that “the Court will eventually need to consider the [legal capacity] question in order to determine what alleged actions and statements of individuals are attributable to the purported unincorporated associations,” id. at 806, and noted that the “parties may seek leave to brief this issue on an expedited basis,” id. n.8. See id. at 806–07. No party sought leave to brief that issue, see Mem. Op. & Order of May 28, 2020, at 2 n.3, ECF No. 742, and NF did not file a motion for summary judgment. 2 “have that attorney enter his or her appearance on the Defendant entity’s behalf in this matter” within two weeks. Order of Mar. 4, 2019, at 2, ECF No. 440. Mr. ReBrook timely noted his appearance on behalf of Schoep, NSM, and NF.2 ReBrook Notice of Att’y Appearance (Mar. 19, 2019), ECF No. 451; see also Tr. of Mar. 18, 2019 Status Conf. Call 4, 6, ECF No. 455; Order of Apr. 4, 2019, at 1–2, ECF No. 461. On March 28, 2020, Mr. ReBrook moved to withdraw as counsel for NSM and NF, which he referred to as “NSM/NF,” while continuing to represent Schoep in this matter. See generally Mem. Op. & Order of May 27, 2020, at 3–10 & n.8. Mr. ReBrook argued that “the interests of [his] clients” were “clearly and directly adverse” because “NSM/NF espouses antisemitism and racial separation” and Schoep “has been speaking out against antisemitism, racism[,] and violence[, t]hus creating a conflict of interest.” ReBrook Mot. to Withdraw 2–3; see also ReBrook Reply in Supp. of Mot. to Withdraw 2, 4, 6 (citing purported deposition testimony by NSM Rule 30(b)(6) designee Burt Colucci that NSM “considers [Schoep] to be a traitor,” and asserting that both “NSM and NF view[] Mr. Schoep as a traitor”). He also asserted that it was in Schoep’s “best interests . to cooperate with discovery and the court, whereas NSM/NF consider Schoep a traitor and have no interest in cooperating with counsel or this Court.” ReBrook Reply in Supp. of Mot. to Withdraw 4. I rejected Mr. ReBrook’s arguments and denied his motion to withdraw in May 2020. See generally Mem. Op. & Order of May 27, 2020, 2 Nonetheless, Mr. ReBrook “consistently described Schoep as his only ‘real’ or ‘human’ client and, for reasons that still are not clear, construed the scope of his attorney-client relationship with NSM and NF to be limited by Schoep’s personal involvement with or control over those two distinct entities.” Mem. Op. & Order of May 28, 2020, at 4–5 (footnote omitted); see generally Va. R. Prof’l Conduct 1.13(a)–(e) (“Organization as Client”); Selee Corp. v. McDanel Advanced Ceramic Techs., LLC, No. 1:15cv129, 2016 WL 4546446, at *3 (W.D.N.C. Aug. 31, 2016) (“The Federal Rules of Civil Procedure impose a duty upon companies responding to discovery to conduct a reasonable investigation, make reasonable inquiries of its [agents], and fully respond to interrogatories and document requests.” (quotation marks omitted)); Tr. of Oct. 18, 2019 Status Conf. 12, 15, 17–19, ECF No. 581. 3 at 12–17 & n.11. On June 25, Plaintiffs noticed NF’s deposition, pursuant to Rule 30(b)(6), to be held on July 24, 2020. See Pls.’ Mot. Ex. 7, ECF No. 918-7. The Notice, which was properly served on Mr. ReBrook, directed NF to “designate one or more officers, directors, or managing agents, or other persons to testify on its behalf with respect to” twenty enumerated topics. Id.; see Fed. R. Civ. P. 30(b)(6). Those topics included NF’s litigation conduct and responses to Plaintiffs’ written discovery requests; the association’s organizational, governance, and membership structures; its use of social media generally during the relevant time; and the association’s and its members’ preparation for, participation in, and communications about the Unite the Right rallies. See Pls.’ Mot. Ex. 7. During Schoep’s individual deposition on July 23, 2020, Mr. ReBrook told Plaintiffs’ counsel, “I don’t know who we’re supposed to get” to appear for NF’s Rule 30(b)(6) deposition because Schoep did not speak for the association anymore and, “I can’t just create a person out of thin air.” Pls.’ Mot. Ex. 9, Tr. of J. Schoep Dep. 271–72, ECF No. 918-9. He pressed them to give him “an actual name” of a person they wanted to depose. Id. at 272. Plaintiffs’ counsel said it was NF and defense “counsel’s responsibility to designate a representative to be deposed” under Rule 30(b)(6) and suggested that Mr. ReBrook should “send some sort of objection . if you’re not going to have someone appear.” Id. Mr. ReBrook responded, “Yeah, I get that. That’s helpful.” Id. “How about this,” he continued. Id. “You get someone to appear for United Telephone & Telegraph Company tomorrow. Can you do that for me? You can’t, right, because it’s not a functioning organization.” Id. (Mr. Isaacson: “I don’t think this is productive right no[w].” Mr. ReBrook: “Maybe not, but you’re being unreasonable if you don’t hear how reasonable I’m being.”). That evening, Mr. ReBrook emailed Plaintiffs’ counsel to explain his 4 position that NF was “a temporary alliance that is no longer in existence” and that he could not “generate a human witness for a defunct, temporary alliance for organizations that have no ongoing relationship.” Pls.’ Mot. Ex. 10, Email from E. ReBrook to Y. Barkai (July 21, 2020 6:04 PM) (“If this were anything more than a paper entity, it would have a board of directors, or a CEO, or some sort of registration and contact information.”), ECF No. 918-10. Plaintiffs canceled NF’s deposition scheduled for the following morning. Pls.’ Mot. 10. On October 16, Plaintiffs sent NF a second notice for a Rule 30(b)(6) deposition to be held on November 2, 2020.
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