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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA
Charlottesville Division

BRENNAN M. GILMORE,

Plaintiff,

v.

ALEXANDER (“ALEX”) E. JONES; No. 3:18-cv-00017-NKM-JCH
INFOWARS, LLC, a Texas Limited Liability
Company; FREE SPEECH SYSTEMS, LLC, a
Texas Limited Liability Company; LEE
STRANAHAN; LEE ANN MCADOO A/K/A
LEE ANN FLEISSNER; SCOTT CREIGHTON;
JAMES (“JIM”) HOFT; ALLEN B. WEST;
DERRICK WILBURN; MICHELE HICKFORD;
and WORDS-N-IDEAS, LLC,

Defendants.

PLAINTIFF’S OPPOSITION TO DEFENDANTS HOFT, STRANAHAN, CREIGHTON,
WILBURN, HICKFORD, AND WORDS-N-IDEAS, LLC’S MOTION FOR SANCTIONS

Elizabeth B. Wydra, admitted pro hac vice Andrew Mendrala, Virginia Bar No. 82424
Brianne J. Gorod, admitted pro hac vice Aderson Francois, admitted pro hac vice
CONSTITUTIONAL ACCOUNTABILITY CIVIL RIGHTS CLINIC
CENTER GEORGETOWN UNIVERSITY LAW CENTER
1200 18th Street, N.W., Suite 501 600 New Jersey Avenue, N.W.
Washington, D.C. 20036 Washington, D.C. 20001
(202) 296-6889 (202) 662-9065
elizabeth@theusconstitution.org andrew.mendrala@georgetown.edu
brianne@theusconstitution.org aderson.francois@georgetown.edu

Counsel for Plaintiff Brennan Gilmore

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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES .................................................................................................. ii

INTRODUCTION .................................................................................................................. 1

LEGAL STANDARD ............................................................................................................. 4

ARGUMENT .......................................................................................................................... 6

I. MR. GILMORE’S AMENDED COMPLAINT ALLEGES NON-FRIVOLOUS
CLAIMS SUPPORTED BY BOTH THE FACTS AND THE LAW.... .................... 6
A. Defendants Have Failed To Show that Mr. Gilmore’s Argument Regarding
Subject-Matter Jurisdiction Is Frivolous. ............................................................. 7

B. Defendants Have Failed To Show that Mr. Gilmore’s Argument Regarding
Personal Jurisdiction Is Frivolous. ....................................................................... 10

C. Defendants Have Failed To Show that Mr. Gilmore’s Argument that He Has
Stated Claims for Defamation and Intentional Infliction of Emotional Distress
Is Frivolous. ......................................................................................................... 11

II. DEFENDANTS HAVE CITED NO EVIDENCE OF BAD FAITH OR AN
INTENT TO HARASS. .............................................................................................. 16

CONCLUSION ....................................................................................................................... 18

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TABLE OF AUTHORITIES

Page(s)
Cases

Adams v. Bain,
697 F.2d 1213 (4th Cir. 1982) ..................................................................................... 8
Biospherics, Inc. v. Forbes,
151 F.3d 180 (4th Cir. 1998) ....................................................................................... 12

Brandenburg v. Ohio,
395 U.S. 444 (1969) .................................................................................................... 15

Brubaker v. City of Richmond,
943 F.2d 1363 (4th Cir. 1991) ..................................................................................... 1, 4, 5
Calder v. Jones,
465 U.S. 783 (1984) .................................................................................................... 2, 10

Carwile v. Richmond Newspapers,
196 Va. 1 (1954) .......................................................................................................... 11

Cleveland Demolition Co. v. Azcon Scrap Corp.,
827 F.2d 984 (4th Cir. 1987) ....................................................................................... 4
Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384 (1990) .................................................................................................... 5

Davis v. Carl,
906 F.2d 533 (11th Cir. 1990) ..................................................................................... 5

Dee-K Enters., Inc. v. Heveafil Sdn. Bhd.,
177 F.R.D. 351 (E.D. Va. 1998).................................................................................. 6
Fitzgerald v. Penthouse Int’l, Ltd.,
691 F.2d 666 (4th Cir. 1982) ....................................................................................... 14

Goldwater v. Ginzburg,
414 F.2d 324 (2d Cir. 1969) ........................................................................................ 13

Hunter v. Earthgrains Co. Bakery,
281 F.3d 144 (4th Cir. 2002) ....................................................................................... 1, 4, 6, 15
In re Johnson,
186 Fed. App’x 390 (4th Cir. 2006) ............................................................................ 6

In re Kunstler,
914 F.2d 505 (4th Cir. 1990) ....................................................................................... 3, 5, 16

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TABLE OF AUTHORITIES – cont’d

Page(s)
In re Sargent,
136 F.3d 349 (4th Cir. 1998) ....................................................................................... 1, 4, 15
Kerns v. United States,
585 F.3d 187 (4th Cir. 2009) ....................................................................................... 8

Lawrence v. Dunbar,
919 F.2d 1525 (11th Cir. 1990) ................................................................................... 8

McDonald v. Patton,
240 F.2d 424 (4th Cir. 1957) ....................................................................................... 9
Milkovich v. Lorain Journal Co.,
497 U.S. 1 (1990) ........................................................................................................ 12, 13

Mortensen v. First Fed. Sav. & Loan Ass’n,
549 F.2d 884 (3d Cir. 1977) ........................................................................................ 7

Murray v. Amalgamated Transit Union,
206 F. Supp. 3d 202 (D.D.C. 2016) ............................................................................ 7
Mwani v. bin Laden,
417 F.3d 1 (D.C. Cir. 2005) ........................................................................................ 7

Perez v. BAT Masonry Co., Inc.,
No. 15-28, 2016 WL 7496146 (W.D. Va. Dec. 30, 2016) .......................................... 5, 8, 11

Stamathis v. Flying J, Inc.,
389 F.3d 429 (4th Cir. 2004) ....................................................................................... 9
St. Amant v. Thompson,
390 U.S. 727, 732 (1968) ............................................................................................ 14

St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283 (1938) .................................................................................................... 2

Tronfeld v. Nationwide Mut. Ins. Co.,
272 Va. 709 (2006) ...................................................................................................... 9, 11
United States v. Williams,
No. 90-5731, 1991 WL 199870 (4th Cir. Oct. 8, 1991) .............................................. 8

iii

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TABLE OF AUTHORITIES – cont’d
Page(s)

Statutes and Rules

Fed. R. Civ. P. 11(b)(1).................................................................................................... 5, 16

Fed. R. Civ. P. 11(b)(2).................................................................................................... 4

Fed. R. Civ. P. 11(b)(3).................................................................................................... 4, 5

Fed. R. Civ. P. 11, Advisory Committee Notes (1993 Amendment) .............................. 1, 5, 11

Fed. R. Evid. 902 ............................................................................................................. 8

Fed. R. Evid. 902(1) ......................................................................................................... 8

Books, Articles, and Other Authorities

Gary Baum, L.A. Alt-Media Agitator (Not Breitbart) Clashes With Google, Snopes,
The Hollywood Reporter (Sept. 21, 2017, 6:15 AM PDT), https://www.hollywood
reporter.com/features/hollywoods-hidden-alt-media-firebrands-1041157 ...................... 13

Alex Kaplan, Fake News Site YourNewsWire Puts Qanon Pedophile Conspiracy
Theories onto Facebook, Media Matters for America (July 30, 2018, 8:21 PM EDT),
https://www.mediamatters.org/blog/2018/07/30/fake-news-site-yournewswire-puts-
qanon-pedophile-conspiracy-theories-facebook/220846 ................................................. 13

5A Charles Alan Wright et al., Federal Practice and Procedure § 1336 (3d ed.) .......... 5

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INTRODUCTION

On March 13, 2018, Plaintiff Brennan Gilmore sued Defendants Hoft, Stranahan,

Creighton, Wilburn, Hickford, and Words-N-Ideas, LLC—among others—for defaming him and

intentionally inflicting emotional distress in violation of Virginia law. As Mr. Gilmore alleged in

his Complaint, Defendants authored and published articles claiming that Mr. Gilmore participated

in a conspiracy to orchestrate the events that took place in Charlottesville in August 2017,

including the tragic death of thirty-two-year-old Heather Heyer. In response, Defendants filed a

joint motion to dismiss and a motion for attorney fees and costs, Dkt. No. 46, and they filed a total

of 139 pages of briefing in support of those motions, Dkt. Nos. 47, 86, 91, 92. Apparently not

content with the arguments they had thus far made, Defendants—with oral argument on those

motions just weeks away—filed a Motion for Sanctions under Federal Rule of Civil Procedure 11,

which does nothing more than rehash the same arguments previously made in support of their

Motion to Dismiss. Those arguments have no more merit now than they did when they were made

the first time, and they certainly are not adequate to support a finding that undersigned counsel

have violated Rule 11. The motion should be denied.

A Rule 11 motion “should not be employed . . . to test the legal sufficiency or efficacy of

allegations in the pleadings; other motions are available for those purposes.” Fed. R. Civ. P. 11,

Advisory Committee Notes (1993 Amendment). Instead, Rule 11 may be invoked only in the rare

instance where a complaint has no factual basis and makes truly frivolous legal arguments. See

Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 153 (4th Cir. 2002) (to violate Rule 11, a “legal

argument must have ‘absolutely no chance of success under existing precedent’” (emphasis added)

(quoting In re Sargent, 136 F.3d 349, 352 (4th Cir. 1998))); Brubaker v. City of Richmond, 943

F.2d 1363, 1373 (4th Cir. 1991) (factual allegations violate Rule 11 only when they are

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“unsupported by any information obtained prior to filing”). Defendants have not come close to

meeting that standard here.

Defendants argue that this Court lacks subject-matter jurisdiction because Mr. Stranahan

resides in Virginia, but the pertinent question for determining diversity is not where Mr. Stranahan

resides, but where he is domiciled. Defendants barely acknowledge—and certainly do not

address—the substantial evidence Mr. Gilmore has put forward, all of which supports the

conclusion that Mr. Stranahan is domiciled in Texas. Defendants also argue that Mr. Gilmore has

failed to allege damages that meet the amount-in-controversy requirement, but the long-standing

rule is that “the sum claimed by the plaintiff controls if the claim is apparently made in good faith,”

and “[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional

amount to justify dismissal.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90

(1938). Defendants do not even begin to explain how they could show to a “legal certainty that

the claim is really for less than the jurisdictional amount,” and even such a showing would only

warrant dismissal—not sanctions.

Next, Defendants argue that this Court lacks personal jurisdiction over them. But, again,

they fail to meaningfully engage with the arguments, grounded in both Supreme Court and Fourth

Circuit case law, that Mr. Gilmore has made. As Mr. Gilmore explained at length in his Opposition

to the Motions to Dismiss filed in this case, this Court can exercise specific personal jurisdiction

over all Defendants because Virginia was “the focal point both of the story and of the harm

suffered,” Calder v. Jones, 465 U.S. 783, 789 (1984). Defendants’ articles and videos concerned

the activities of a Virginia resident at a Charlottesville event concerning a Virginia controversy,

and they unquestionably caused harm to Mr. Gilmore in Virginia.

After that, Defendants take aim at Mr. Gilmore’s claims for defamation and intentional

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infliction of emotional distress, but again they do not meaningfully engage with the arguments Mr.

Gilmore made in his Opposition. As Mr. Gilmore explained there, he has plausibly alleged that

each Defendant made false and defamatory claims about Mr. Gilmore’s participation in a

conspiracy to stage the events in Charlottesville, and that they did so with the requisite intent.

Even if this Court ultimately agrees with Defendants that it lacks jurisdiction or that Mr. Gilmore

failed to state a claim for defamation or intentional infliction of emotional distress, Mr. Gilmore’s

arguments are hardly frivolous within the meaning of Rule 11.

Finally, Defendants fail to demonstrate that Mr. Gilmore filed this suit in bad faith. Bad

faith means that the Plaintiff filed suit with “some purpose other than to vindicate rights through

the judicial process.” In re Kunstler, 914 F.2d 505, 519 (4th Cir. 1990). But, as the Amended

Complaint and Opposition to the Motions to Dismiss make clear, Mr. Gilmore filed this suit

precisely to “vindicate [his] rights through the judicial process” after he was defamed by

Defendants. As a result of that defamation, Mr. Gilmore’s ability to continue in his chosen line of

work (that is, diplomatic work in the foreign service) has been compromised, and he and his family

have faced months of online smears and harassment. Defendants do not even purport to have

evidence to the contrary. Instead, they simply disagree with Mr. Gilmore’s legal arguments, see,

e.g., Dkt. No. 102, at 9 (noting the “legal shortcomings in the [Amended Complaint]”); id. at 14

(the Amended Complaint “fails to name a single statement of fact made by the Undersigned

Defendants that was false and defamatory”); id. at 15 (Mr. Gilmore’s allegation that “the

Defendants have violated journalistic practices” is “unfounded.”); id. at 16 (“[T]he [Amended

Complaint] never properly alleges any false statements of fact by the Undersigned Defendants.”),

and believe that undersigned counsel should have known better than to file a suit premised on—in

their view—such weak arguments, see id. at 1 (“It is not plausible that experienced attorneys would

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file such a frivolous complaint out of ignorance.”); id. at 9 (“this Plaintiff is represented by four

attorneys, all with long resumes, and thus, ignorance is unlikely to be a valid excuse”). Mere

disagreement with colorable legal arguments is not enough to show bad faith, and certainly not

grounds for sanctions. In short, Defendants have shown no basis to impose sanctions under Rule

11, and their motion should be denied.

LEGAL STANDARD

Under Rule 11, an attorney may file a pleading so long as “the claims, defenses, and other

legal contentions are warranted by existing law or by a nonfrivolous argument for extending,

modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2). An

attorney violates this provision in only truly egregious circumstances. As the Fourth Circuit has

explained, “maintaining a legal position to a court is only sanctionable when, in ‘applying a

standard of objective reasonableness, it can be said that a reasonable attorney in like circumstances

could not have believed his actions to be legally justified.’” Hunter, 281 F.3d at 153 (quoting

Sargent, 136 F.3d at 352). “[T]he legal argument must have ‘absolutely no chance of success

under existing precedent’” to violate the rule. Id. (quoting Sargent, 136 F.3d at 352) (emphasis

added).

Similarly, when a lawyer files a pleading, the lawyer certifies that the allegations and other

factual contentions have evidentiary support. Fed. R. Civ. P. 11(b)(3). For purposes of Rule 11,

factual allegations lack evidentiary support when they are “unsupported by any information

obtained prior to filing.” Brubaker, 943 F.2d at 1373. In other words, “the Rule does not . . .

require that a claim be proven before a complaint can be filed.” Hunter, 281 F.3d at 153 (quoting

Cleveland Demolition Co. v. Azcon Scrap Corp., 827 F.2d 984, 988 (4th Cir. 1987)). It requires

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only that a factual contention “will likely have evidentiary support after a reasonable opportunity

for further investigation or discovery.” Fed. R. Civ. P. 11(b)(3).

Finally, a pleading may not be presented “for any improper purpose, such as to harass,

cause unnecessary delay, or needlessly increase the cost of litigation.” Fed. R. Civ. P. 11(b)(1).

A complaint violates Rule 11(b)(1) only if it was willfully filed with “some purpose other than to

vindicate rights through the judicial process.” Kunstler, 914 F.2d at 519. “[C]reative claims,

coupled even with ambiguous or inconsequential facts, may merit dismissal, but not punishment”

under Rule 11. Brubaker, 943 F.2d at 1373 (quoting Davis v. Carl, 906 F.2d 533, 536 (11th Cir.

1990)).

Importantly, a Rule 11 motion “should not be employed . . . to test the legal sufficiency or

efficacy of allegations in the pleadings; other motions are available for those purposes. Nor should

Rule 11 motions be prepared to emphasize the merits of a party’s position, . . . [or] to intimidate

an adversary into withdrawing contentions that are fairly debatable . . . .” Fed. R. Civ. P. 11,

Advisory Committee Notes (1993 Amendment); see Cooter & Gell v. Hartmarx Corp., 496 U.S.

384, 396 (1990) (“[T]he imposition of a Rule 11 sanction is not a judgment on the merits of an

action. Rather, it requires the determination of a collateral issue: whether the attorney has abused

the judicial process, and, if so, what sanction would be appropriate.”); Perez v. BAT Masonry Co.,

Inc., No. 15-28, 2016 WL 7496146, at *4 (W.D. Va. Dec. 30, 2016) (denying a Rule 11 motion

for sanctions and noting that a Rule 11 motion “should be made only as a response to severely

deficient pleadings, not serve as a stage to advance a party’s defenses”); 5A Charles Alan Wright

et al., Federal Practice and Procedure § 1336 (3d ed.) (“Rule 11 should not be used to raise issues

as to the legal sufficiency of a claim or defense that more appropriately can be disposed of by a

motion to dismiss . . . .”). “At bottom, a court considering Rule 11 sanctions must differentiate

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between a losing argument or position, which is not sanctionable, and a frivolous one, which is.”

In re Johnson, 186 Fed. App’x 390, 394 (4th Cir. 2006); see Hunter, 281 F.3d at 153 (“Although

a legal claim may be so inartfully pled that it cannot survive a motion to dismiss, such a flaw will

not in itself support Rule 11 sanctions—only the lack of any legal or factual basis is

sanctionable.”); Dee-K Enters., Inc. v. Heveafil Sdn. Bhd., 177 F.R.D. 351, 354 (E.D. Va. 1998)

(Were a dismissed claim always subject to Rule 11 sanctions, “Rule 11 would essentially collapse

into Rule 12(b)(6), for every time a plaintiff failed to state a claim upon which relief could be

granted, it would also be liable for fees or other sanction under Rule 11. Such a result is plainly

contrary to the language and intent of the Rules.”).

ARGUMENT

I. MR. GILMORE’S AMENDED COMPLAINT ALLEGES NON-FRIVOLOUS
CLAIMS SUPPORTED BY BOTH THE FACTS AND THE LAW.

Defendants argue that Mr. Gilmore violated Rule 11 by advancing claims that this Court

has subject-matter jurisdiction over the case, that this Court can assert personal jurisdiction over

each of the Defendants, and that Mr. Gilmore has stated a claim against each Defendant for

defamation and intentional infliction of emotional distress. Dkt. No. 102, at 2-9. Defendants fail

to meet the high burden imposed by Rule 11. Tellingly, Defendants do not cite any Rule 11 case

law to support their Motion for Sanctions, and instead simply rehash the same arguments made in

support of their Motion to Dismiss. Compare Dkt. No. 47, with Dkt. No. 102. Their arguments

have no more merit now than when they were initially made in the Motion to Dismiss, and they

certainly do not support sanctions. Indeed, as discussed at length in Mr. Gilmore’s Opposition to

the Motions to Dismiss (Dkt. No. 70), this Court plainly has jurisdiction to hear this case, and Mr.

Gilmore has stated claims for both defamation and intentional infliction of emotional distress under

Virginia law.

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A. Defendants Have Failed To Show that Mr. Gilmore’s Argument Regarding
Subject-Matter Jurisdiction Is Frivolous.

Defendants first argue that sanctions are appropriate because the allegation that Mr.

Stranahan was domiciled in Texas “has no evidentiary support.” Dkt. No. 102, at 2. However,

Defendants get things exactly backwards: all of the evidence presented to the Court at the motion-

to-dismiss stage supports Mr. Gilmore’s allegation that Mr. Stranahan is domiciled in Texas. Mr.

Gilmore has presented credible evidence that (1) Mr. Stranahan is registered to vote in Texas, and

in fact renewed his Texas voter registration in late 2017—nine months after he claims he moved

to Virginia—suggesting that Mr. Stranahan receives mail in Texas; (2) a “skip tracing” report

completed prior to the commencement of this action indicated that Mr. Stranahan has a Texas-

issued driver’s license, and there is no evidence that he has any Virginia state identification

document; (3) Mr. Stranahan’s Facebook account—which he updates regularly—states that he

lives in “Dallas, Texas”; (4) a Lexis public records search for Mr. Stranahan’s wife revealed that

she is actively registered to vote in Dallas, Texas, and voted there in 2016; (5) the address at which

Mr. Stranahan claims he resides in Virginia is a WeLive/WeWork temporary housing complex;

and (6) Mr. Stranahan provided multiple conflicting statements about facts regarding his domicile

in correspondence with Mr. Gilmore’s counsel. Dkt. No. 70, at 7-11. 1

1
Defendants apparently decide they can ignore all of this evidence because, in their view,
it is not “admissible.” Dkt. 102, at 2. But Defendants cite no case law for the proposition that this
Court must strictly abide by the Federal Rules of Evidence that would govern at trial when
considering a Rule 12(b)(1) motion to dismiss. Undersigned counsel is aware of no binding
authority that applies this standard, and some courts have expressly held that in the context of Rule
12(b)(1), “[p]laintiffs are not limited to evidence that meets the standards of admissibility required
by the district court. Rather, they may rest their argument on their pleadings, bolstered by such
affidavits and other written materials as they can otherwise obtain.” Murray v. Amalgamated
Transit Union, 206 F. Supp. 3d 202, 207 (D.D.C. 2016) (quoting Mwani v. bin Laden, 417 F.3d 1,
7 (D.C. Cir. 2005)); cf. Lawrence v. Dunbar, 919 F.2d 1525, 1530 (11th Cir. 1990) (Vacating
dismissal for lack of subject-matter jurisdiction and concluding that “it is incumbent upon the trial
judge to demand less in the way of jurisdictional proof than would be appropriate at a trial stage.”)
(quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 892 (3d Cir. 1977)). In any

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The only “evidence” on the other side is Mr. Stranahan’s own declaration, see Webb v.

Nolan, 361 F. Supp. 418, 421 (M.D.N.C. 1972), aff’d, 484 F.2d 1049 (4th Cir. 1973) (a party’s

own statements regarding his intended domicile are “not conclusive” and are “entitled to little

weight when in conflict with the facts”), and the only fact in that declaration is that he currently

resides in Virginia. But, critically, “state citizenship for purposes of diversity jurisdiction depends

not on residence, but on national citizenship and domicile.” Axel Johnson, Inc. v. Carroll Carolina

Oil Co., 145 F.3d 660, 663 (4th Cir. 1998). Defendants offer no evidence that Mr. Stranahan is

actually domiciled in Virginia, as opposed to simply a resident of the state. In any event, to the

extent there is some factual dispute about Mr. Stranahan’s domicile, that would hardly merit

dismissing the Amended Complaint at the motion-to-dismiss stage, let alone imposing sanctions.

See Perez, 2016 WL 7496146, at *4 (denying Rule 11 motion because, “[a]t most, [the defendant]

has shown that he has a different interpretation of the facts and evidence than the [plaintiff]”).

Defendants also argue that sanctions are warranted because Mr. Gilmore has alleged an

amount-in-controversy based on damages they believe were caused only by third persons not

named as defendants. But as already described in Mr. Gilmore’s Opposition, “where the plaintiff

makes his claim in obvious good faith, it is sufficient for jurisdictional purposes; and this is so

event, at least some of the documents that Mr. Gilmore attaches to his Opposition are obviously
admissible. For example, Mr. Stranahan’s Texas voter registration document bears the Texas state
seal as well as the signature of the Director of Elections, and is therefore a self-authenticating
document that requires “no extrinsic evidence of authenticity in order to be admitted.” Fed. R.
Evid. 902 & 902(1); United States v. Williams, No. 90-5731, 1991 WL 199870, at *10 (4th Cir.
Oct. 8, 1991). To the extent the Court disagrees, the proper course would be to hold an evidentiary
hearing to determine admissibility, not to dismiss the case, and certainly not to impose sanctions.
See Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (“If the defendant challenges the
factual predicate of subject matter jurisdiction, ‘[a] trial court may then go beyond the allegations
of the complaint and in an evidentiary hearing determine if there are facts to support the
jurisdictional allegations.’” (emphasis omitted) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982))).

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even where it is apparent on the face of the claim that the defendant has a valid defense.”

McDonald v. Patton, 240 F.2d 424, 425 (4th Cir. 1957). Neither Defendants’ Motion to Dismiss

nor their Motion for Sanctions provides any argument at all that Mr. Gilmore’s allegation of

damages was made in bad faith. To the extent Defendants believe they have a valid defense to

Mr. Gilmore’s claims, that defense should be raised in a motion to dismiss or when calculating

damages, not in a motion for sanctions.

Defendants ignore all of the foregoing, and instead offer what they see as a defense to Mr.

Gilmore’s claims: that his injury arises solely out of the independent acts of third parties. Again,

even if true, that is irrelevant to the Court’s assessment of whether Mr. Gilmore has alleged the

amount-in-controversy in good faith. And in any event, their argument is wrong. For one thing,

Mr. Gilmore specifically argues that “[e]ach Defendant made statements that are defamatory per

se,” Dkt. No. 70, at 36, and under Virginia law, a person defamed per se “is presumed to have

suffered general damages,” Stamathis v. Flying J, Inc., 389 F.3d 429, 440 (4th Cir. 2004); Tronfeld

v. Nationwide Mut. Ins. Co., 272 Va. 709, 713-14 (2006) (“A person maligned by defamation per

se may recover compensatory damages for injury to reputation, humiliation, and embarrassment

without demonstrating any financial loss.”). Thus, Mr. Gilmore would not need to prove that any

harm was caused by Defendants as opposed to third parties if their statements are per se

defamatory. On top of that, Mr. Gilmore has alleged damages caused purely by Defendants’

statements, not the actions of third parties. Specifically, he alleges that as a Foreign Service

Officer, “it will be exceedingly difficult for him to serve as a diplomat to another nation, as foreign

officials will certainly research his background and find the shocking and threatening information

published by Defendants, including allegations that he is not actually a diplomat but a covert CIA

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agent.” Dkt. No. 29, at 75 (Am. Compl. ¶ 188). This allegation is plausible and is certainly not

so frivolous as to merit sanctions.

B. Defendants Have Failed To Show that Mr. Gilmore’s Argument Regarding
Personal Jurisdiction Is Frivolous.

Next, Defendants argue that sanctions are appropriate because they dispute Mr. Gilmore’s

argument that the Court may exercise personal jurisdiction over all Defendants. However, as Mr.

Gilmore discussed at length in his Opposition, Dkt. No. 70, at 12-20, this Court has specific

personal jurisdiction over all Defendants because, although the defamatory articles in this case

were published nationwide, “the focal point both of the story and of the harm suffered” was in

Virginia, Calder, 465 U.S. at 789. Just like their Motion to Dismiss, Defendants’ Motion for

Sanctions fails to even mention Calder v. Jones—the most applicable Supreme Court precedent.

And it is obvious why: the facts in Calder are almost identical to the facts here, and that case is

therefore fatal to Defendants’ argument. As in Calder, the Defendants’ stories “concerned the

[Virginia] activities of a [Virginia] resident,” they were “drawn from [Virginia] sources” (namely,

Mr. Gilmore’s video of the attack in Charlottesville), and the “brunt of the harm, in terms both of

[Mr. Gilmore’s] emotional distress and the injury to h[is] professional reputation, was suffered in

[Virginia].” Id. at 788-90; see Dkt. No. 72-1, at 1 (brief of personal jurisdiction scholars as amici

curie) (“A straightforward application of settled Supreme Court doctrine confirms that [this case’s]

facts suffice for establishing personal, specific jurisdiction over Defendants in this case.”). Even

if the Court ultimately finds those arguments unavailing, Mr. Gilmore’s arguments are at least

colorable and do not merit sanctions.2

2
Defendants also contest the allegation in the Amended Complaint that “all Defendants
regularly do and/or solicit significant business in Virginia, engage in other persistent courses of
conduct, or derive substantial revenue from goods sold to, goods used or consumed, or services
rendered in Virginia, such that they have made minimum contacts with the state and have
purposefully availed themselves of its laws,” Dkt. No. 29, at 5 (Am. Compl. ¶ 7), arguing that

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C. Defendants Have Failed To Show that Mr. Gilmore’s Argument that He Has
Stated Claims for Defamation and Intentional Infliction of Emotional Distress
Is Frivolous.

Lastly, Defendants argue that sanctions are appropriate because Mr. Gilmore has “fail[ed]

. . . to state a claim upon which relief can be granted.” Dkt. No. 102, at 5. But as already explained

above, a Rule 11 motion “should not be employed . . . to test the legal sufficiency or efficacy of

allegations in the pleadings; other motions are available for those purposes.” Fed. R. Civ. P. 11,

Advisory Committee Notes (1993 Amendment); see Perez, 2016 WL 7496146, at *4 (A Rule 11

motion “should be made only as a response to severely deficient pleadings, not serve as a stage to

advance a party’s defenses.”).

In any event, as discussed extensively in his Opposition, Mr. Gilmore has stated a claim

that Defendants have defamed him in violation of Virginia law. Each of these Defendants’ articles

and videos falsely stated, either explicitly or by insinuation and inuendo, that Mr. Gilmore was

part of an elaborate plot to stage the white supremacist rally that took place last summer in

Charlottesville—a plot that resulted in the death of an innocent protester named Heather Heyer.

See Carwile v. Richmond Newspapers, 196 Va. 1, 7 (1954) (“a defamatory charge may be made

by inference, implication or insinuation”).

Defendants argue in their Motion for Sanctions—as they did in their Motion to Dismiss—

that their defamatory statements are simply opinions and are therefore shielded from the reach of

Virginia defamation law. Dkt. No. 102, at 6-7. But as explained in greater detail in Mr. Gilmore’s

“Plaintiff presented absolutely no evidence that any of these Defendants did engage in such
conduct,” Dkt. No. 102, at 5. As an initial matter, Mr. Gilmore does not assert general personal
jurisdiction over these Defendants and thus does not rely on this language at all. In any event, a
plaintiff is not required to prove his allegations at the motion-to-dismiss stage. And to the extent
that these allegations are contradicted by Defendants’ declarations, as Defendants argue (id.), such
a factual dispute regarding jurisdiction would not provide grounds for dismissal at this early stage
of the proceedings, and it certainly would provide no basis for sanctions.

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Opposition, there is no “wholesale defamation exemption for anything that might be labeled

‘opinion.’” Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990). Rather, if a statement

“impl[ies] a false assertion of fact,” it is defamation, and “[s]imply couching [the] statement[] in

terms of opinion does not” change that. Id. at 19; see Biospherics, Inc. v. Forbes, Inc., 151 F.3d

180, 183 (4th Cir. 1998) (“[a]n unsupported opinion that implies defamatory facts . . . ‘can cause

as much damage to reputation’ and may be just as actionable” as a false statement of fact (quoting

Milkovich, 497 U.S. at 19)). As detailed in Mr. Gilmore’s Opposition, every Defendant made

statements that, even if couched in terms of opinion, imply provably false facts about Mr.

Gilmore’s supposed participation in a conspiracy to stage the Charlottesville events, and these

statements are therefore actionable.

Related, Defendants argue that their statements are not provably false because they are

simply “conclusion[s] [Defendants] dr[ew] from . . . facts.” Dkt. No. 102, at 6. This, too, is wrong.

As an initial matter, the sole citation Defendants provide for their argument about “protected

opinion drawn from disclosed facts” is the Supreme Court’s opinion in Milkovich, but their citation

comes from the dissenting opinion, not the Court’s majority opinion. Dkt. No. 102, at 6 (citing

Milkovich, 497 U.S. at 27 n.3 (Brennan, J., dissenting)). In any event, even that footnote does not

support their position because it discusses a hypothetical in which a conclusion is based on a “clear

disclosure of a comment’s [true] factual predicate,” Milkovich, 497 U.S. at 27 n.3 (Brennan, J.,

dissenting). Here, by contrast, Defendants’ factual predicates were themselves false (namely, that

Mr. Gilmore had connections to the CIA, special operations, and the like 3), and Defendants implied

3 See, e.g., Dkt. No. 29, at 20 (Am. Compl. ¶ 46) (Mr. Creighton falsely stating that Mr.
Gilmore has “ties to special operations, special forces, CIA”); id. at 25 (Am. Compl. ¶ 61) (Mr.
Hoft falsely stating that Mr. Gilmore has “links to George Soros,” that “[he] was involved in the
Kony 2012 operation,” and that the “Deep State . . . [is] trying to erase [Mr. Gilmore] from their
records”).

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that there were other factual predicates that were not disclosed (Mr. Creighton, for example,

repeatedly suggested that he knew facts that gave him insight into Mr. Gilmore’s subjective state

of mind and motivations4). As Justices Brennan and Marshall explained in their dissent in

Milkovich, “[t]he operative question remains whether reasonable readers would have actually

interpreted the statement as implying defamatory facts.” Id. Here, the answer to that question is

plainly yes. Defendants thus cannot excuse their false and defamatory smears of Mr. Gilmore

simply by labeling them “conclusions.” Indeed, allowing them to do so would create a huge

loophole in the law of defamation, undermining the important goals served by the doctrine. And

even if this Court were to ultimately disagree with this analysis, Mr. Gilmore’s arguments are

hardly frivolous within the meaning of Rule 11. 5

4
See, e.g., Dkt. No. 29, at 20 (Am. Compl. ¶ 46) (falsely stating that Mr. Gilmore has a
“fucking ax to grind” (emphasis omitted)).
5
Defendants also argue that Mr. Wilburn “clearly stated that he was drawing a conclusion
based on hypothetical facts,” Dkt. No. 102 at 6, but this grossly mischaracterizes the nature of that
article. First, the article’s title is “BOMBSHELL: New Evidence Suggests Charlottesville Was a
Complete SET-UP,” Dkt. No. 70, at 34, and the use of the terms “bombshell” and “evidence”
would suggest to a reasonable reader that the content of the article is not merely the author’s
“opinion,” but rather is based on true facts and real reporting. Moreover, it is well established that
“[r]epetition of another’s words does not release one of responsibility if the repeater knows that
the words are false or inherently improbable, or there are obvious reasons to doubt the veracity of
the person quoted or the accuracy of his reports.” Goldwater v. Ginzburg, 414 F.2d 324, 337 (2d
Cir. 1969). Mr. Wilburn quoted a portion of an article on Your News Wire, a website known to
publish conspiracy theories, see, e.g., Gary Baum, L.A. Alt-Media Agitator (Not Breitbart) Clashes
With Google, Snopes, The Hollywood Reporter (Sept. 21, 2017, 6:15 AM PDT),
https://www.hollywoodreporter.com/features/hollywoods-hidden-alt-media-firebrands-1041157;
Alex Kaplan, Fake News Site YourNewsWire Puts Qanon Pedophile Conspiracy Theories onto
Facebook, Media Matters for America (July 30, 2018, 8:21 PM EDT),
https://www.mediamatters.org/blog/2018/07/30/fake-news-site-yournewswire-puts-qanon-
pedophile-conspiracy-theories-facebook/220846 (“YourNewsWire is one of the most heavily
trafficked fake news sites, creating some of the most viral fake stories of the past few years, and
its posts have been debunked by Facebook’s third-party fact-checkers more than 80 times.”), and
Mr. Wilburn quoted this article without making any attempt to “verify[] that [it was] true prior to
publication,” Dkt. No. 29, at 50 (Am. Compl. ¶ 128).

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Furthermore, all of Defendants’ statements were defamatory, as they all charged Mr.

Gilmore with being a part of a criminal conspiracy that resulted in the death of Ms. Heyer. See

Tronfeld, 272 Va. at 713 (Defamatory statements are actionable per se if they “impute to a person

the commission of some criminal offense involving moral turpitude, for which the party, if the

charge is true, may be indicted and punished.”). Mr. Gilmore also plausibly alleges that the articles

damaged his career as a Foreign Service Officer because “foreign officials will certainly research

his background and find the shocking and threatening information published by Defendants,

including allegations that he is not actually a diplomat but a covert CIA agent.” Dkt. No. 29, at 75

(Am. Compl. ¶ 188). These allegations must be accepted as true at the motion-to-dismiss stage.

Finally, Mr. Gilmore has plausibly alleged that Defendants made these statements with the

requisite intent. As Mr. Gilmore explained at length in his Opposition, he is a private figure, and

thus the relevant standard of intent is negligence; but even if he were a public figure and thus

required to show actual malice, he alleged facts sufficient to state a claim for actual malice at this

stage of the proceedings. See Dkt. No. 70, at 42-44 (describing allegations that Defendants did

not abide by journalistic standards and instead created a narrative out of whole cloth and attempted

to fit Mr. Gilmore into that narrative); see also Fitzgerald v. Penthouse Int’l, Ltd., 691 F.2d 666,

671 (4th Cir. 1982) (denying a motion for summary judgment where “[i]t [wa]s possible . . . that

the plaintiff c[ould] meet his burden of proving the defendants had actual doubts about the

accuracy of the information they published and that their failure to make an adequate investigation

will reveal a reckless disregard for the truth”); see generally St. Amant v. Thompson, 390 U.S. 727,

732 (1968) (actual malice “when the publisher’s allegations are so inherently improbable that only

a reckless man would have put them in circulation”). 6

6
Defendants claim that “Plaintiff repeatedly pretended to know facts that he could not
possibly know,” arguing, for example, that Plaintiff cannot know “who the Undersigned

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Mr. Gilmore also plausibly stated a claim for intentional infliction of emotional distress.

He alleged that Defendants’ statements were made recklessly; that Defendants’ statements were

extreme and outrageous; and that Mr. Gilmore suffered severe emotional distress. See Dkt. No.

70, at 46-48. Defendants’ only response is that Mr. Gilmore has failed to meet the standard for

incitement set out in Brandenburg v. Ohio, 395 U.S. 444 (1969), see Dkt. No. 102, at 8, but they

fail to point to any case law suggesting that the incitement standard is a required element of

intentional infliction of emotional distress in Virginia, and they also fail to even acknowledge that

Mr. Gilmore has alleged that his emotional distress is in part based on harms that do not stem from

the conduct of third parties, see Dkt. No. 29, at 96 (Am. Compl. ¶ 289) (Defendants’ publications

“caused irreparable damage to [Mr. Gilmore’s] professional reputation as a diplomat in the State

Department and his ability to conduct business in his current employment.”).

The overarching point here is that although Defendants may disagree with the legal

arguments made in Mr. Gilmore’s Opposition to their Motion to Dismiss, that hardly means those

arguments have “absolutely no chance of success,” Hunter, 281 F.3d at 153 (quoting Sargent, 136

F.3d at 352). Defendants may also claim that the factual assertions in the Amended Complaint are

not “true,” Dkt. No. 102, at 7, but again, a factual dispute is a reason to deny the motion to dismiss,

Defendants spoke to with respect to their articles . . . and whether the Undersigned Defendants had
their claims independently checked,” Dkt. No. 102, at 7. But Mr. Gilmore knows that they did not
speak to him or reach out to him for comment, as any journalist following normal journalistic
standards would have done before publishing stories like these. And Mr. Gilmore knows that
Defendants’ articles were replete with false statements of basic facts (for example, the assertions
that he has CIA ties and is on George Soros’s personal payroll), suggesting that Defendants’
statements were not “independently checked.” Mr. Gilmore’s allegations thus meet the Rule
12(b)(6) standard, and certainly satisfy Rule 11’s requirements. If Defendants can ultimately prove
those allegations are not true, that might support a ruling in their favor at some later stage of the
case, but these arguments are not grounds for dismissal, let alone sanctions.

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not to grant a motion for sanctions. In short, Defendants have provided no support for their

argument that Mr. Gilmore’s pleading is so frivolous as to merit Rule 11 sanctions.

II. DEFENDANTS HAVE CITED NO EVIDENCE OF BAD FAITH OR AN INTENT
TO HARASS.

Defendants couple their rehashed arguments for dismissal with the suggestion that

statements made by Mr. Gilmore and his attorneys to the press are evidence of bad faith and an

attempt to harass them by filing this suit. To be sure, a pleading violates Rule 11 if presented “for

any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost

of litigation.” Fed. R. Civ. P. 11(b)(1). But Mr. Gilmore did not file this suit for “any improper

purpose.” Rather, he filed it because he faced a “barrage of harassing and threatening messages”

in the months since Defendants published their defamatory statements, including the public sharing

of his address, attempts to log into his online accounts, and multiple implied death threats against

him and his family. Dkt. No. 29, at 57-64 (Am. Compl. ¶¶ 150-63). In response to these harms

caused by Defendants’ actions, Mr. Gilmore simply seeks to “vindicate [his] rights through the

judicial process,” Kunstler, 914 F.2d at 519.

Defendants offer no evidence to the contrary. Instead, they first argue that “the [Amended

Complaint] is, on its face, so completely frivolous that it invites the intuition that it was filed in

bad faith.” Dkt. No. 102, at 9; see id. (“this Plaintiff is represented by four attorneys, all with long

resumes, and thus, ignorance [of the complaint’s shortcomings] is unlikely to be a valid excuse”).

As discussed above, this is plainly wrong. See supra at 7-16.

Second, Defendants argue that their “suspicion” that this case was filed to “[h]arass the

Defendants” is “bolstered by various statements by the Plaintiff and his attorneys outside of court.”

Dkt. No. 102, at 13. But the press statements Defendants cite are hardly evidence of this type of

improper behavior. Instead, they simply reiterate that Mr. Gilmore seeks to hold Defendants

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accountable for their actions in defaming him and to prevent similar lies from being directed at

him or someone like him in the future. See, e.g., id. at 15 (Mr. Gilmore “said he hopes the lawsuit

helps ‘blunt the ability’ of fringe websites and individuals to spread baseless conspiracy

theories.”). Nothing in these press statements even implies that Mr. Gilmore filed this suit in bad

faith or that Mr. Gilmore lacked a legal and factual basis for pursuing claims of defamation and

intentional infliction of emotional distress against Defendants.

Finally, throughout their discussion of Mr. Gilmore’s purported bad faith, Defendants

continue to make legal arguments as to why Mr. Gilmore should lose his defamation case on the

merits. See, e.g., Dkt. No. 102, at 9 (noting the “legal shortcomings in the [Amended Complaint]”);

id. at 14 (“this sounds high-minded until one realizes that the [Amended Complaint] fails to name

a single statement of fact made by the Undersigned Defendants that was false and defamatory”);

id. (“[T]he [Amended Complaint] attempts to declare conclusions to be actionable if the Plaintiff

disagrees with them.”); id. at 15 (Mr. Gilmore’s allegation that “the Defendants have violated

journalistic practices” is “unfounded.”); id. at 16 (“[T]he [Amended Complaint] never properly

alleges any false statements of fact by the Undersigned Defendants.”). But to reiterate, a motion

for sanctions is not an appropriate forum to litigate the merits of a dispute. Mr. Gilmore has made

colorable arguments that this Court has jurisdiction over this case and that he has stated claims for

defamation and intentional infliction of emotional distress. Regardless of whether the Court in the

end agrees with those arguments, they were made in good faith and are hardly frivolous. Sanctions

are therefore not appropriate.

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CONCLUSION

For the foregoing reasons, Defendants’ Motion for Sanctions (Dkt. No. 101) should be

denied.

Respectfully submitted,
Dated November 5, 2018 /s/ Andrew Mendrala

Elizabeth B. Wydra, admitted pro hac vice Andrew Mendrala, Virginia Bar No. 82424
Brianne J. Gorod, admitted pro hac vice Aderson Francois, admitted pro hac vice
CONSTITUTIONAL ACCOUNTABILITY CIVIL RIGHTS CLINIC
CENTER GEORGETOWN UNIVERSITY LAW CENTER
1200 18th Street, N.W., Suite 501 600 New Jersey Avenue, N.W.
Washington, D.C. 20036 Washington, D.C. 20001
(202) 296-6889 (202) 662-9065
elizabeth@theusconstitution.org andrew.mendrala@georgetown.edu
brianne@theusconstitution.org aderson.francois@georgetown.edu

Counsel for Plaintiff Brennan Gilmore

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CERTIFICATE OF SERVICE

I hereby certify that on November 5, 2018, the foregoing document was filed with the Clerk

of the Court, using the CM/ECF system, causing it to be served on all counsel of record.

Dated: November 5, 2018
/s/ Andrew Mendrala
Andrew Mendrala

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