LaNasa v. Tenkar – Dismissed with Prejudice

Throughout out the TSR Saga, there have been many reporting on it – doing varying avenues and degree of investigating. One of those was the proprietor of the Tenkar’s Tavern web presence… who we’ll refer to as Tenkar (who is an old D&D character of his, of course).

Background

Tenkar is a long time player of D&D who has a general interest in role-playing games, which he primarily expresses through his website, Tenkar’s Tavern and the connected YouTube Channel. He is also a former Internal Affairs officer with the New York Police Department and a big advocate for OSR. He also (like everyone) injects his politics and his personal opinions in there, but for the most part here’s what you need to know:

Tenkar did a lot of videos covering the various mistruths and questionable claims of the nuTSR crowd, sometimes with accompanying blog posts writing things up and linking to relevant information.
Tenkar has a lot of opinions on old school games styles, often making videos to discuss the idea of playing now vs then, talking about the principles of OSRIC, etc.
Tenkar also made a consistent effort over the years to expose people trying to grift or otherwise exploit the nostalgia for old school gaming. Ken Whitman, for example, has featured frequently and generally in an unflattering manner since at least as far back as October 2014.¹
Tenkar is wary of the pitfalls of commentary, and takes steps to prepare his receipts and evidence in advance – and to always show the material he’s using to substantiate his opinions.
Tenkar’s long involvement with the hobby, conventions and the history of the hobby have made him quite well networked within the niche hobby.

Naturally this did not bode well for Justin LaNasa, the Dungeon Hobby Shop Museum or the nuTSR crowd in general.

The Build Up

Tenkar’s engagement was primarily through YouTube, at the time of writing he has 58 videos in the video he has assigned to it. Of course there was additional commentary in his Facebook Group, comments, etc. There’s a lot there.

But people who had negative opinions on nuTSR are a dime a dozen, particularly after the June 2021 meltdown brought them into the public eye and the ensuing drama started making others distance themselves. Of course, the whole leak of Nazi content in Star Frontiers: New Genesis (Unreleased) made everything intensify.

So what did Tenkar do that got particularly under Justin LaNasa’s skin?

He provided the breakdowns of what was going down in the most digestible format – reasonable length YouTube videos²
He interviewed affected parties like Scott Griffin (Part 1³ | Part 2⁴)
He signal boosted other critics, but remained critical of their claims/promises
Reached out to and talked to former TSR people like Don Semora⁵ and Michael K Hovermale⁶
He continued to have fun, going to conventions, playing his own games, trying new products, etc
He did not flinch in the face of harassment

Because, yeah, as a result of this Tenkar had to deal with:

People rushing into his Facebook group for the purposes of doxxing him
Justin LaNasa paying to mail him (hopefully fake) poop,⁷ after nuTSR ongoing support Vincent “TheEvilDM” Florio gave Justin his address⁸ (this isn’t speculation, both parties had confessed to this)
A regular barrage of harassment via anonymous emails
Ongoing harassment by mysteriously “anonymous” social media accounts tending towards names like “Mario Real”
Ongoing harassment of his wife Rachel⁹
nuTSR proudly creating a Tenkarian Gibberer card in Dungeon Crawl¹⁰
nuTSR’s beta of Star Frontiers (Unreleased) including a Tencarp monster¹¹

So, naturally Justin LaNasa decided he was the victim in this – and filed a lawsuit against Tenkar on behalf of himself, and two of his companies.

The Lawsuit

As has been a trend with nuTSR litigation, the lawsuit was a shitshow from start to finish. It began with a claim that was too vague to go into the details of beyond:¹²

Tenkar made a bunch of YouTube videos that Justin says are mean and hopes the judge will watch them and agree
Tenkar said that Justin’s criminal history was a matter of public record
Tenkar said Justin mailed (hopefully fake) poop to him
Tenkar read out loud things that other people said about him, while making it blatantly obvious they were other people’s opinions
Tenkar once included a photo of Justin’s daughter in one video (for context… this is because Justin’s wife appeared in the chat of a livestream and said daughter happens to be in her YouTube avatar)
Justin is scared of Tenkar to the extent he is traumatized that if he ever shows up to Tenkar’s house with hostile intentions Tenkar might shoot him. (Why he would do that is not explained…)
They felt it was self evident that Tenkar’s blog and YouTube channel, which had existed for years before the event… must exist only to harass Justin

Oh and it just assumed there was at least $75,000 because reasons.

Tenkar employed suitable counsel and disputed… pretty much everything. The judge, being studied in The Law tended to agree and demanded a refiling.

In the refiling… Justin’s lawyers made some changes:¹³

The damages were now at least $1 million (though were not clarified as per the judge’s request)
Tenkar’s mother, Lois, who had never appeared in a video and they had put “aka” Rachel

Eventually after a year of preparation for trial, and a lot of whining by Justin’s lawyer about how it was fair Tenkar had two lawyers (who were both more competent).¹⁴ Some concessions were forced from Justin and his counsel:

Justin did in fact, have a criminal history – both charges that were dropped when Justin was in Basic Training because “Victim in Army” and a conviction that Justin had claimed was “a different Justin LaNasa”¹⁵
Justin had in fact sent fake poop to Tenkar’s house¹⁶
Justin and his lawyer had in fact, falsely served Tenkar’s mother who was no part to the proceeding¹⁷
Justin’s discovery questions all hinged on some whacky conspiracy theory that Wizards of the Coast, Luke Gygax and Charlie Hall of Polygon all conspiring together…¹⁸
…both Justin and his lawyer somehow believed this entitled them to documentation regarding the unrelated TSR LLC v. Wizards of the Coast (Washington) case.¹⁹
The total amount of “damages” before the lawsuit began was closer to $25,000²⁰
They assumed since they’d already done everything leading up to trial, it was fine for them to just add Rachel to the docket in place of Tenkar’s mother… just because.²¹

The Law

So… you may be wondering, how well did Justin and seemingly the only lawyer in New York desperate enough to take his case do? Well, the answer is not very good.

(Disclaimer: I am not a lawyer, I am certainly not a lawyer in the United States of America, most certainly not barred in New York and most importantly of all – I am not your lawyer and nothing here could be considered personal legal advice. Don’t take legal advice off a stranger’s blog.)

There are three pages of cases cited as authorities, so I won’t dig into them all but suffice to say a lot of them seem to have previous little to do with the facts at hand, and seem to be the desperately grabbed and included without care for context. There are also mistakes in the ordering of them… so it looks very much like the sort of thing a slacker student would toss together the night before.

Damages, Anti-SLAPP & Diversity

Justin initially claimed “at least $75,000” in damages on the suit and that looks like it was for… tactical reasons that are not precisely legal.

Under US Law, ordinarily this defamation suit – having all defendants residing in the same state – would take place in New York state level court under New York state laws. New York had just implemented an Anti-SLAPP law that would mean the case could potentially be roundly dismissed with costs to Tenkar early in the process.

However, the courts have agreed that the Anti-SLAPP law does not apply in Federal cases, and is only available under specific circumstances at a state level. In order for a case like this to be Federal, it must meet a “diversity” requirement… one of which can be “over $75,000 in damages”)²²

So while it was kind of baffling that it jumped up to $1 million about the same time Justin wanted to add Tenkar’s mother to the docket, its’ pretty disastrous that the final figures come to:

Roughly $25,000 in mixed “damages”
Roughly $160,000 in legal fees (which cannot be claimed as damages, only awarded if the court see fits and is able to under law)

So… on this count, that sure looks like a good cause for dismissal and potentially sanctions… to the extent that Justin’s lawyer started citing Carrol v. Trump (No. 2) as evidence that punitive damages could be surprisingly high.

He also tries to cite Adams v. NETFLIX, Inc to support his case… which is weird because it is very specifically not precedential, was dismissed on this basis, citing Connecticut law, all the way up at the Court of Appeal level²³ (the Supreme Court, unsurprisingly, declined to hear Adams).

Given that Adams was trying to spin the loss of $20.16 into a $75,000 case so it could go to the federal level… I’m not sure Justin would want to direct a judge to be aware of it while considering his own sham lawsuit.

But hey, we’re here, let’s look at the case itself and the odds it could have manifest all those juicy, juicy punitive damages that’d be required for it to be valid. Keeping in mind that to get punitive damages under New York rules, he needs to show the plaintiff was not just in the wrong – but knowingly or recklessly in the wrong… they very specifically cannot be used to compensate a plaintiff.²⁴

Defamation

Contrary to what you may have heard from Tiktok accounts talking about Amber Heard, defamation is a very specific thing in law and there specific requirements – it is not just mean things or trespass to feelings.

In the US, fundamental building blocks are:

Something bad must be said or written about the plaintiff, by the defendant, to at least one other person
That something bad must:
- Be factually untrue; or
- Be presented in a way that misleads the person hearing it to believe something untrue (eg referring to something someone did as a child, or in a video game, in a way that leads people to believe they did it in real life)
And by bad, it must:
- Cause plaintiff to suffer in business (if they are a company this is the only option); and/or
- Lower the plaintiff in the eyes of right-minded members of society to a measurable degree; and/or
- Be something that the law considers inherently harmful (Nick Rekieta, who facilitated the crowd funding for Vic Mignola’s doomed defamation suit, is currently being sued because in his state it’s defamation per se to call someone a pedo. You’d think a lawyer would have known that going in… but oh well)

There are also a number of defences that can be raised, and should be considered before a defamation claim is made – the most important ones for purposes being:

Truth (outside of very, very specific cases) clearly expressed factual truth is always a perfect defence; and
Honest opinion (that’s where you give an opinion with the information it’s based on – your opinion doesn’t have to be good, or even make sense – it just needs to be an opinion and you need to show your working)

This was quite a problem for Justin since pretty much everything he said was defamation was either truth:

He did have a criminal history
The words Tenkar was reading were something a third party said, and Tenkar was reporting on that
He did send (hopefully fake) poop to Tenkar

Or easily fed into substantiated opinion:

Tenkar showed why he believed harassment, etc was linked to Justin
Tenkar explained why he thought TSR LLC and Dungeon Hobby Shop Museum were grifts
Tenkar is absolutely allowed to not like Justin and to say so

So… the defamation action… didn’t seem to have a lot of steam. I should note here, that defamation is usually considered a “plaintiff’s tort” – its easy to get started and the burden of proof generally falls upon the defendant. Hence why we’ve been getting anti-SLAPP laws around the world.

But for Justin, there was an extra hurdle.

Actual Malice

Despite the name, “actual malice” has nothing to do with malice or intention – it’s actually just a standard of particular negligence that must be applied by the defendant in the US whenever the plaintiff is a “public figure”.

Now first, the important thing to understand with a public figure its that its not quantified – there’s not a requirement for Instagram followers, etc. It’s all about did the party willingly seek out the attention, did they put themselves out in the public for scrutiny (and hence should expect feedback).

If they did, then they must show that the defendant made the statements either knowing they were false, or with reckless disregard for the truth. The standard exists to protect criticism and free speech.

So, you’ll naturally be amused to find Justin’s lawyer claims that Justin LaNasa, the failed political candidate who has multiple YouTube channels for himself as the owner of Hardwire Tattoo, who featured in announcement videos for TSR LLC, and in the videos on Dungeon Hobby Shop Museum, who posts selfies of himself on Dungeon Hobby Shop Museum’s Facebook… was absolutely not a public figure.

And he kind of needed that to be true, because of the last part.

Prima facie tort

Justin’s lawyer was arguing that this was a “prima facie tort” – which in New York means that the behaviour was all of the kind which was – ordinarily lawful, but in this case there was a special reason it was so harmful it had to be an exception. It’s a stopgap for when people are clearly trying to abuse the system.

Prima facie torts are not universal in Common Law, and in areas where they are available they are rarely raised by respectable lawyers because the circumstances are so rare, and the courts do not look kindly on the accusation being thrown around lightly. They are generally reserved for cases where people are clearly trying to game the system to do deliberate, specific harm of an extreme nature.

And Justin’s lawyer needed that to be the case… because otherwise there was just no other way to get a defamation case to stick to someone who is doing their due diligence, telling the truth, giving their honest opinions… and still being mean.

Intentional Infliction of Emotional Distress (IIED)

On top of claiming that Tenkar was mean about him… Justin also claimed he’d deliberately caused him extreme emotional distress through a couple of incidents.

Now, IIED is complicated but the main factors we need to understand here is that the plaintiff must be traumatized, by something outrageous that the defendant did – deliberately and knowing it was outrageous.

You can’t claim IIED for someone in a bar challenging you to step into the parking lot for a fight, but you can (probably) claim IIED if they announce they know where you live and they’re going to go burn your house down with your family inside.

For this reason, it’d be very hard to get through IIED, even if New York state wasn’t a proud support of a kind of terrible type of self-defence law.

Castle Doctrine

Cards on the table, I think Castle Doctrine – the legal principle that you have no obligation to retreat or otherwise try to prevent the use lethal force in the defence of your own home – is batshit. I don’t support it. But I do recognize that it is part of New York law.

Hence why I find it deeply confusing why Justin’s New York lawyer, who has experience in criminal law, wanted to claim that Tenkar stating ““I hope they like lead because I have plenty to offer” is somehow IIED in reference to showing up to his house in a threatening manner.

I mean… he’s allowed to say it, and do it! It’s right there in the law books!²⁵ If Justin thinks this is shocking… he should write to New York legislators about it… you’d think he know this given his forays into politics.

Also this seemed conditional on unlikely events that would lead to the belief in “heightened circumstances” anyway. Justin… if you’re afraid of Tenkar shooting you for going into his house.. don’t go into his house… you know where it is! You sent poop to it!

Deep-fakery

Perhaps the most bizarre and hinged angle here is the strange claim, that by showing a photo of Justin’s wife Erika – which happens to include his daughter… Tenkar had created a scenario where Justin should fear that people would use it to create deep fake child abuse imagery.

I looked in Google Scholar, Court Listener, etc and I couldn’t find any case vaguely supporting this – and given that Justin’s lawyer relied upon cases where people had posted actual revenge porn – I’m guessing he couldn’t either. To make his case that it was definitely harmful he… cited a copyright dispute case that ended in settlement.²⁶ He also refers the court to a law article… entirely about what to do from a legal perspective when the deep-fakes are created and distributed²⁷ – NOT on how to punish people when a lawyer makes a fan-fic.

Now… this is already an absurd argument because not only has what he’s ranting about happened, there’s… simply no reason that can be assembled in the consensual reality to believe this is likely… let alone the inferred intent of Tenkar, but because one of Justin’s favourite hobbies is posting pictures of his daughter on the Internet.

They’re on his personal site, on his personal Facebook profile, and even have been posted on the Dungeon Hobby Shop Museum’s Facebook page during the period of the alleged harassment. So if sharing a photo of Justin’s daughter to people who don’t like him is the outrageous action, the prime offender is one Justin LaNasa.

This is entirely a claim for IIED based on the imagination.

Service and jurisdiction

According to all known Common Law doctrines, and the US Rules of Federal Procedure, in order for the civil court to have jurisdiction over an individual or other entity (for example: a company) they must first be served within the rules of the specific court.

Service can be accepted on their behalf by their lawyer, or a member of their household, etc – but it must name the specific party and the specific jurisdiction being applied to them. If you want to sue multiple parties, each must be served individually so each can make a decision on retaining counsel and how to respond.

Parties can be served after proceedings have begun, but they must be served correctly, and immediately once it known they are to be party to the suit. If they are served incorrectly, or not at all – that must be corrected before you proceed further.

There are even rules to allow for serving someone when you don’t know their legal identity.

You know what there isn’t any rule or authority to do? Serve the wrong person, then a year later – after the vast majority of pretrial work has been done – casually mention you served the wrong person but decide it was other people’s job to know that you didn’t bother to learn the difference between his wife and his mother… and that by putting “aka” in you obviously meant an entirely different person.

What makes this even stupider is that nothing in the amended complaint that is attributed to Rachel even vaguely makes sense as defamation or IIED.

The Verdict

On 17 April 2024, Judge Kiyo A Matsumoto issued a thoroughly researched and cited, 31 page, memorandum explaining that the court’s finding was that Justin had provided no evidence of any substantial wrong doing by Tenkar, that his lawyer was mistaken in his belief he could just serve Rachel so long after the complaint and that the court would not be entertaining any more amendments to the complaint since three for three had been unhelpful. The complaint against Tenkar is dismissed with prejudice (meaning the matter is considered resolved, so can only be disputed by appeal) and the complaint against Rachel without prejudice (because she was never served).

Memorandum of Instructions in LaNasa v. Tenkar (no redactions)Download

She did not make any ruling on sanctions, or costs, but did comment that it has generally been considered appropriate to sanction lawyers who disregard the rules of service, and that Justin’s lawyer – being licensed and having taken the case – was assumed to have known what the necessary criteria for action are. So, it seems he may have some issues awaiting him in the future.

Unfortunately part of the reason she did not make a ruling as to costs is that while New York has a robust anti-SLAPP law in place – it can only be invoked at a state level due to conflict with Federal Rules of Procedure. Tenkar’s lawyers argued that this should not apply, since the case should not have been at Federal court due to failure to meet the minimum $75,000 in damages (particularly after LaNasa showed most of his damages were alleged legal expenses – which do not qualify).

Notably though, she did not agree with the nonsense put forward by Justin’s counsel that the Carrol v. Trump case or any other case raised by meant you could just make up any number you liked and call it legitimate. Rather she cited the more logical explanation that harm done to a business early on, which denies it opportunities, can be difficult to calculate as a long term harm. She did not specify that she believed this was the case, merely that there was a theoretical basis for it.

However, the judge cited that at the dismissal point, there is no requirement for the plaintiff to show itemized damages at this point, and the court is obligated to take the proposal at good faith as there are important situations where the quantification can be difficult (harm extended over multiple years etc). Hence the consideration of the theoretical harm.

My feeling is, however, that the judge was very conflicted on this point as prior to issuing the decision she required the parties to confirm where they were domiciled – a point which could have allowed her to rule diversity had not been met.

This is understandable as it is certainly unfortunate for a party to incur extensive legal costs because a) someone was upset and cried defamation where it didn’t apply and b) he happened to find a lawyer who agreed to use his licensed attorney status to file it. There is also the obvious concern that the kind of person who would do that, is also the kind of person likely to appeal and so the judge is wise to make sure every i is dotted, every t crossed.

Conclusion

While the resolution of dismissal with prejudice was the correct outcome, the fact that costs were not awarded to Tenkar highlights multiple flaws in the US civil litigation system.

Firstly, if the requirement to establish diversity is a dollar amount – then there should either be an expectation for the plaintiff to show a substantial explanation for how they cross that amount at a point where their right to be in federal court is met.

Secondly, if the only barrier to an anti-SLAPP action is that it’s a higher court, then this greatly undermines the supposed autonomy of states to make their own legislation and the need for the federal code to be updated – otherwise it creates an obvious incentive for people to try to escalate their cases unnecessarily.

Thankfully, in this case it was not enough of an issue to rain on Tenkar’s parade.

That feeling when the lawsuit gets thrown out with prejudice.

1
Tenkar A WTF are They Thinking!?! Kickstarter – Castles & Crusades: Blacktooth Ridge (T.V. Pilot) (3 October 2014) <www.tenkarstavern.com>
2
Tenkar’s Tavern TSR/DHSM Playlist (YouTube) <www.youtube.com>
3
Tenkar’s Tavern Ernie Gygax Call with Scott Griffin re: Dungeon Hobby Shop Museum 6/21 – Sorry I Gygaxed You! Part 1 (YouTube, 22 June 2022) <www.youtube.com>
4
Tenkar’s Tavern Ernie Gygax Phone Call with Scott Griffin re: DHSM – Part 2 – Justin is “Abrasive” & “A Bully” (YouTube, 29 June) <www.youtube.com>
5
Tenkar’s Tavern An Email Interview with Don Semora – Dungeon Crawl Board Game – Wizard Tower Press (YouTube, 24 January 2022) <www.youtube.com>
6
Tenkar’s Tavern Gamer’s Health Livestream with Special Guest Michael Hovermale Tonight @ 8 PM Eastern (YouTube, 2 October 2022) <www.youtube.com>
7
Tenkar’s Tavern Hey, Look What Justin LaNasa Sent Me Months Before My Lawyer ! (31 August 2022, YouTube) <www.youtube.com>
8
Tenkar’s Tavern Vince Florio, The Truly Evil DM – The Betrayal, In His Own Words (Screenshots from the TSR Discord) (11 July 2022, YouTube) <www.youtube.com>
9
Tenkar’s Tavern Justin Is Trying To dox My Wife Rachel – Go F’ Yourself LaNasa! (18 March 2022, YouTube) <www.youtube.com>
10
Tenkar’s Tavern The Tenkarian Gibberer presented in Pure Low LaNasian (Dungeon Crawl Boardgame) (25 January 2022, YouTube) <www.youtube.com>
11
Tenkar’s Tavern WotC Applies for some TSR Trademarks, New Star Frontiers Group appears on FB, and here’s Tencarp! (25 February 2022, YouTube) <www.youtube.com>
12
Lanasa v. Stiene, 1:22-cv-05686, (E.D.N.Y), doc 1 (23 September 2022)
13
LaNasa v Stiene, above n 12, doc 20 (23 January 2023)
14
LaNasa v Stiene, above n 12, doc 61 (24 December 2023)
15
LaNasa v Steine, above n 12, doc 47 (20 October 2023)
16
LaNasa v Steine, above n 12, doc 60 (23 December 2023)
17
LaNasa v Steine, above n 12, doc 60 (23 December 2023)
18
LaNasa v Steine, above n 12, doc 50, attachment 1 (31 October 2023)
19
LaNasa v Steine, above n 12, doc 50, attachment 1 (31 October 2023)
20
LaNasa v Steine, above n 12, doc 65, (6 February 2024)
21
LaNasa v Steine, above n 12, doc 65, (6 February 2024)
22
28 U.S. Code § 1332 (b)
23
Adams v NETFLIX, Inc., 17-3270-cv (2d Cir. 2018)
24
Manual of Model Civil Jury Instructions (9th Circuit, United States Courts) <uscourts.gov>
25
Consolidated Laws of New York, Chapter 40 Penal, s 35.20
26
Iantosca v. Elie Tahari, Ltd., 1:19-cv-04527, (S.D.N.Y.)
27
Moncarol Y. Wang Don’t Believe Your Eyes: Fighting Deepfaked Nonconsensual Pornography with Tort Law (The Legal Forum, University of Chicago, ) <legal-forum.uchicago.edu>

LaNasa v. Tenkar – Dismissed with Prejudice

Background

The Build Up

The Lawsuit

The Law

Damages, Anti-SLAPP & Diversity

Defamation

Actual Malice

Prima facie tort

Intentional Infliction of Emotional Distress (IIED)

Castle Doctrine

Deep-fakery

Service and jurisdiction

The Verdict

Conclusion

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Background

The Build Up

The Lawsuit

The Law

Damages, Anti-SLAPP & Diversity

Defamation

Actual Malice

Prima facie tort

Intentional Infliction of Emotional Distress (IIED)

Castle Doctrine

Deep-fakery

Service and jurisdiction

The Verdict

Conclusion

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