United States District Court, W.D. Virginia, Charlottesville Division
Brennan M. Gilmore, Plaintiff
Alexander (“Alex”) Jones, ET AL., Defendants.
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
Brennan Gilmore was among hundreds of individuals who
gathered in Charlottesville, Virginia on August 12, 2017 to
protest various white supremacist and neo-Nazi groups
participating in the “Unite the Right” rally. As
Gilmore recorded footage of protestors that afternoon, he
captured James Alex Fields, Jr. driving into a crowd, killing
Heather Heyer and injuring approximately thirty-six others.
Gilmore posted this footage on Twitter, and the video quickly
went viral. Gilmore alleges that, in the days after August
12, Defendants published articles and videos falsely
portraying him as a “deep state” operative who
conspired to orchestrate violence in Charlottesville for
political purposes. Gilmore brought suit in this Court
against Defendants for defamation and intentional infliction
of emotional distress (IIED).
move to dismiss on multiple grounds. Various defendants move
to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), arguing that
the Court lacks subject matter jurisdiction. All defendants
move to dismiss under Fed.R.Civ.P. 12(b)(2), asserting that
this Court cannot exercise personal jurisdiction over any
defendant. All defendants contend under Fed.R.Civ.P. 12(b)(6)
that Gilmore fails to state claims against them for either
defamation or IIED.
Court holds that it can exercise diversity jurisdiction over
this action pursuant to 28 U.S.C. § 1332, and that it
can exercise specific personal jurisdiction over all
defendants except Defendant Allen B. West, who will be
dismissed. The Court further holds that Gilmore has
adequately pled defamation against Defendants but has not
adequately pled IIED. Thus, Gilmore's defamation claims
will survive, but his IIED claims will be dismissed.
brings claims for defamation and IIED against eleven
defendants. The parties' alleged identities and roles are
Plaintiff Brennan Gilmore (“Gilmore”)
is domiciled in Albemarle County, Virginia. (Am.
Comp. ¶ 13). In 2017, Gilmore took leave
from the U.S. State Department, where he is employed as a
Foreign Service Officer. (Id.). Gilmore served as
chief of staff for Tom Perriello during Perriello's 2017
Virginia gubernatorial campaign. (Id.). He now
serves as a business consultant for an information technology
Defendant Scott Creighton (“Creighton”)
is domiciled in Tampa, Florida, and is the owner and author
of the website American Everyman. (Am. Comp. ¶
19; dkt. 47-2 at 2). On August 13, 2017, Creighton wrote and
published an article entitled “Charlottesville
Attack, Brennan Gilmore and . . . the STOP KONY 2012 Pysop?
What?”. (Id.). Creighton also allegedly
published a video entitled “Charlottesville Attack:
Brennan Gilmore - Witness or Accessory?” on the
same day on the since-suspended American Everyman
YouTube channel. (Am. Comp. ¶ 19).
Defendant James Hoft (“Hoft”)
in St. Louis, Missouri, Hoft is the owner and author of the
website Gateway Pundit. (Am. Comp. ¶
20; dkt. 47-3 at 2). On August 14, 2017, Hoft wrote and
published an article entitled “Random Man at
Protests Interviewed by MSNBC, NY Times Is Deep State Shill
Linked to George Soros” on the Gateway
Pundit website. (Id.).
Defendant Lee Stranahan (“Stranahan”)
August 15, 2017, Stranahan appeared alongside Defendant Lee
Ann McAdoo in a video posted on InfoWars.com
entitled “Bombshell Connection Between
Charlottesville, Soros, CIA.” (Am. Comp.
¶ 17; dkt. 29-6). A former employee of
Breitbart News, Stranahan currently operates The
Populist, a “political journalism” website.
(Am. Comp. ¶ 17). Stranahan is also allegedly
an employee of RT, a Russian television network that
recently registered with the Department of Justice as a
foreign agent. (Id.). Gilmore alleges that Stranahan
is domiciled in Dallas, Texas but temporarily lives and works
in the Washington, D.C. metropolitan area, “conducting]
business” from a “shared workspace in Arlington,
Virginia.” (Id.). Stranahan is the only
defendant who disputes that he is domiciled outside of
Virginia. (Dkt. 47 at 8-9).
Defendant Lee Ann Fleissner, a.k.a. Lee Ann McAdoo
is domiciled in Sarasota, Florida, and works as an
independent contractor and reporter for Free Speech Systems,
LLC, in which capacity she “produce[s] content for
Infowars.” (Am. Comp. ¶ 18; dkt. 57-3 at
1). On August 15, 2017, McAdoo authored an article posted on
the InfoWars website entitled “Bombshell
Connection Between Charlottesville, Soros, CIA.”
(Am. Comp. ¶ 18; dkt. 29-6). The article
included a video “produced” by McAdoo of the same
title, featuring McAdoo interviewing Stranahan. (Am. Comp.
¶ 18; dkt. 57-3 at 1).
Defendants Alex Jones (“Jones”), InfoWars, LLC
(“InfoWars”), and Free Speech Systems, LLC
(“Free Speech Systems”)
in Austin, Texas, Jones is the owner and publisher of the
InfoWars website, as well as the host of associated
radio and web-based shows. (Am. Comp. ¶ 14;
dkt. 57-1 at 1). InfoWars is a Texas limited liability
company (LLC) operating as the website InfoWars.com. (Am.
Comp. ¶ 15). InfoWars “presents itself as
a news media outlet” and “funds its work by the
sale of various dietary supplements on its online
store.” (Id. ¶¶ 123-24). Free Speech
Systems is a related Texas LLC that operates InfoWars.com and
The Alex Jones Channel on YouTube.(Id.
¶ 16; dkt. 57-2 at 1). Jones allegedly owns Free Speech
Systems. (Am. Comp. ¶ 16). Infowars.com is labeled a
“Free Speech Systems, LLC website, ” and
purchases of InfoWars dietary supplements “may result
in a billing entry on the purchaser's credit card as Free
Speech Systems, LLC or Magnolia Management.”
alleges that these defendants published defamatory statements
about him in the August 15, 2017 article authored by McAdoo
and the accompanying video featuring McAdoo and Stranahan.
(Id. ¶¶ 16, 83). Jones allegedly posted
the article text and video on his YouTube channel and Twitter
account. (Id. ¶¶ 87-88). Gilmore asserts
that these defendants also published defamatory statements in
a video Jones produced entitled “Breaking: State
Department / CIA Orchestrated Charlottesville
Tragedy.” (Id. ¶ 102; dkt. 57-1).
This video was posted on InfoWars.com and The Alex Jones
Channel on YouTube. (Am. Comp. ¶ 102).
Defendants Allen B. West (“West”), Derrick
Wilburn (“Wilburn”), Michele Hickford
(“Hickford”), and Words-N-Ideas, LLC
former congressman and regular contributor to Fox News, is
domiciled in Dallas, Texas. (Am. Comp. ¶ 21; dkt. 59-1
at 1). Gilmore alleges that West owns the Allen B.
West website,  which published an allegedly defamatory
article entitled “BOMBSHELL: New evidence suggests
Charlottesville was a complete SET-UP.” (Am. Comp.
¶ 21). Wilburn, domiciled in Colorado Springs, Colorado,
authored that article. (Id. ¶ 22; dkt. 47-5).
Words-N-Ideas, an allegedly inactive Florida LLC, is
identified by Gilmore as the “purported owner” of
the Allen B. West website. (Am. Comp. ¶ 24).
Hickford, also domiciled in Florida, is the managing member,
registered agent, and self-described “President”
of Words-N-Ideas, (id. ¶ 23; dkt. 47-4 at 2),
as well as the alleged “editor-in-chief” of the
Allen B. West website. (Am. Comp. ¶ 23). West
contends that Hickford and Words-N-Ideas owned and operated
the Allen B. West website when Wilburn's article
was published, and that he had “no involvement with
operating the website” or publishing the article. (Dkt.
59-1 at 1-2).
in “his personal capacity, ” was among the many
“peaceful counter-protestors” who gathered in
Charlottesville, Virginia on August 12, 2017 “in
opposition” to the Unite the Right rally. (Am. Comp.
¶ 27). The rally was organized by various white
supremacist and neo-Nazi groups as a response to the
Charlottesville City Council's decision to remove a
statue of Confederate General Robert E. Lee from a city park
and change that park's name from “Lee Park”
to “Emancipation Park.” (Id.
¶¶ 25-26). Gilmore captured footage of James Alex
Fields, Jr. driving into a crowd of protestors, and shared
this video on Twitter to show that the attack was
“deliberate” and “to help convince the
public to stay off the streets.” (Id.
after sharing this footage, Gilmore received interview
requests from local, national, and international media
outlets. (Id. ¶ 33). Between August 12 and 13,
2017, Gilmore spoke with multiple outlets “to provide
an eyewitness account.” (Id. ¶ 34).
Gilmore did not solicit these interview requests “or
ask media outlets to share his video.” (Id.
¶ 35). Defendants published articles and videos
containing statements about Gilmore between August 13, 2017
(the publication date of Creighton's article and video)
and August 21, 2017 (the publication date of Jones's
video). (Id. ¶¶ 37-144). Gilmore alleges
that these publications falsely portray him as “a
‘Deep State operative' who helped orchestrate the
violence in Charlottesville.” (Id. ¶
Defendants' publications appeared online, Gilmore
allegedly “became the subject of a barrage of harassing
and threatening messages that made him fear for his personal
safety as well as the safety of his family members.”
(Id.). Gilmore describes disturbances such as
attempted hacks into his online accounts, the posting of his
parents' address online, a confrontation with a
disgruntled stranger on the street, and the mailing of an
unknown chemical substance to his parents' home.
(Id. ¶¶ 154, 157-63). As a result of
stress related to these disturbances, Gilmore has been
diagnosed with a medical condition causing a loss of vision
in his right eye, and has experienced
“exacerbated” symptoms of depression.
(Id. ¶¶ 181-83).
publications have also allegedly harmed Gilmore
professionally. Gilmore claims that his company has lost
potential clients and partners, and that he “may need
to remove himself altogether from the company's
client-facing work” to prevent harm to the business.
(Id. ¶ 187). Gilmore asserts that it will be
“difficult” for him to serve as a diplomat if he
returns to the State Department due to the reputational harm
inflicted by Defendants' publications, and claims that
“government officials who have endorsed Defendants'
lies” would “likely” seek to “oust
him from government service entirely.” (Id.
move to dismiss on three grounds. First, some defendants move
to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), arguing this
Court cannot exercise diversity jurisdiction under 28 U.S.C.
§ 1332. (Dkts. 46; 58). Second, all defendants move to
dismiss pursuant to Fed.R.Civ.P. 12(b)(2), arguing that the
Court cannot exercise personal jurisdiction over any
defendant. (Dkts. 46; 56; 58). Third, all defendants move to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing that
Gilmore fails to state claims for either defamation or IIED.
(Id.). The Court addresses each argument in turn.
Rule 12(b)(1) - The Court's Subject Matter
invokes this Court's diversity jurisdiction pursuant to
28 U.S.C. § 1332(a), which requires complete diversity
between the parties and an amount in controversy exceeding
$75, 000. Defendants Creighton, Hoft, Stranahan, Wilburn,
Hickford, and Words-N-Ideas move to dismiss pursuant to Rule
12(b)(1), arguing that (1) the parties are not completely
diverse because Stranahan, like Gilmore, is a citizen of
Virginia; and (2) Gilmore fails to adequately allege that the
amount in controversy exceeds $75, 000. (Dkt. 47 at
motion to dismiss pursuant to Rule 12(b)(1) tests a district
court's subject matter jurisdiction. Typically, the Court
must accept as true all material factual allegations in the
complaint and construe the complaint in the plaintiff's
favor. See Warth v. Seldin, 422 U.S. 490, 501
(1975). But where a defendant challenges the factual basis
for subject matter jurisdiction, “the plaintiff bears
the burden of proving the truth of such facts by a
preponderance of the evidence.” U.S. ex rel.
Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009).
“Unless the jurisdictional facts are intertwined with
the facts central to the merits of the dispute, ” the
district court may “go beyond the allegations of the
complaint and resolve the jurisdictional facts in dispute by
considering evidence outside the pleadings.”
Id. at 348. “The moving party should prevail
only if the material jurisdictional facts are not in dispute
and the moving party is entitled to prevail as a matter of
law.” Richmond, Fredericksburg & Potomac R.R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
first contend that the parties are not completely diverse
because Stranahan, like Gilmore, is a citizen of Virginia,
rather than of Texas as Gilmore asserts. (Dkts. 47; 59). To
satisfy § 1332(a)'s complete diversity requirement,
“the citizenship of every plaintiff must be different
from the citizenship of every defendant.” Cent.
W.Va. Energy Co., Inc. v. Mountain State Carbon, LLC,
636 F.3d 101, 103 (4th Cir. 2011). “[R]esidency is not
sufficient to establish citizenship.” Johnson v.
Advance Am., 549 F.3d 932, 937 n.2 (4th Cir. 2008).
“To be a citizen of a State, a person must be both a
citizen of the United States and a domiciliary of that
State.” Id. “Domicile requires physical
presence, coupled with an intent to make the State a
home.” Id. In evaluating complete diversity,
the relevant unit of analysis is the party's domicile
“at the time the complaint is filed.”
Martinez v. Duke Energy Corp., 130 Fed.Appx. 629,
634 (4th Cir. 2005) (citing Grupo Dataflux v. Atlas Glob.
Grp. L.P., 541 U.S. 567, 571 (2004)).
party's citizenship “is questioned, a court must
make an individualized inquiry relying on certain factors
such as voter registration; current residence; the location
of real and personal property; location of bank and brokerage
accounts; membership in clubs, churches, or other
associations; place of employment or business; driver's
license and automobile registration; and the state to which a
person pays taxes.” Scott v. Cricket Commc'ns,
LLC, 865 F.3d 189, 195 (4th Cir. 2017). “No single
factor is dispositive.” Id.
support of their position that Stranahan was domiciled in
Virginia at the time this action was filed, Defendants
present declarations by Stranahan stating that, although he
previously resided in Texas, he has rented an apartment in
Virginia since March 2017, had no home or property in Texas
in 2017, has had no family living in Texas since November
2016, has no Texas driver's license, has not voted in
Texas since 2012, and intends to live in Virginia “for
the foreseeable future.” (Dkts. 47-1; 91-1). Stranahan
also presents W-2 forms indicating his employer withheld
Virginia income taxes in 2017. (Dkt. 91-2).
counters with evidence that Stranahan is actively registered
to vote in Texas, (dkts. 70-1; 70-7); a “skip
tracing” report indicating that Stranahan at one point
resided at a Texas address and had a Texas driver's
license,  (dkt. 70-2); a screenshot of
Stranahan's Facebook page stating that he lives in
Dallas, Texas, (dkt. 70-3); records indicating that
Stranahan's wife is registered to vote in Texas, (dkt.
70-4); and an assertion that Stranahan solicited payments and
donations “via a Pay-Pal account belonging to Stranahan
Strategies, ” (dkt. 70 at 9), which Texas Comptroller
records indicate is an inactive Texas LLC. (Dkt. 70-5).
Court finds that Gilmore has established by a preponderance
of the evidence that Stranahan was domiciled in Texas at the
time this action was filed. Although Stranahan currently
rents an apartment in Virginia, (dkt. 47-1), “residency
is not sufficient to establish citizenship.”
Johnson, 145 F.3d at 937, n.2. Similarly, although
Stranahan's declaration states that he “intend[s]
to live in Virginia for the foreseeable future, ” (dkt.
47-1), such self-serving statements are entitled to
“little weight” to the extent that they
“conflict with the facts.” Peterson for
Peterson v. Paddy, No. 3:16-cv-00026, 2017 WL 2655854,
at *3 (W.D. Va. June 19, 2017). See also Manning v.
Alamance Cty., N. Car., No. 1:15-cv-290, 2016 WL 843309,
at *3 (M.D. N.C. Mar. 1, 2016) (noting that “a
party's own statements of his intended domicile are not
conclusive” and should be “accepted with
most compelling evidence of Stranahan's domicile is his
place of voter registration. Records from the Secretary of
State of Texas show that, at the time this action was filed,
Stranahan was actively registered to vote in
Texas. (Dkt. 70-1). Indeed, Stranahan concedes
this point, stating only that it “never occurred”
to him to remove himself from Texas's voter rolls because
he has “not been an active voter” since 2012.
(Dkt. 47-1 at 3). In assessing a party's domicile, voter
registration is of “great importance, ” as voting
practices “raise a presumption that the voter is a
citizen in the state in which he votes.” Am.
Heartland Port, Inc. v. Am. Port Holdings, Inc., No.
5:11-cv-50, 2014 WL 1123384, at *5 (N.D. W.Va. Mar. 21,
2014). This presumption “must be rebutted
by evidence showing a clear intention” that the
party's “citizenship is otherwise.”
evidence of Stranahan's active voter registration in
Texas is particularly weighty because to remain active on
Texas's voter rolls, Texas law requires that voters be
capable of receiving a non-forwardable renewal certificate
mailed by the registrar to the Texas address listed on the
voter's last registration application. See
Tex. Elec. Code Ann. §§ 14.001(a), 14.002(a)-(b).
If the renewal form is returned as undeliverable to the
registrar, the voter is placed on the “suspense
list.” Id. § 14.021. Stranahan's
voter registration records indicate that he remained actively
registered in Texas following a “change / audit
date” of December 5, 2017. (Dkt. 70-1 at 2). Under
Texas law, Stranahan was almost certainly capable of
receiving mail at a Texas address in December 2017.
Otherwise, the renewal certificate mailed to the address he
previously listed on his voter registration application would
have been returned to the registrar as undeliverable, and the
registrar would have placed Stranahan on the suspense list.
The evidence Stranahan offers of Virginia domicile-including
statements that he intends to reside in Virginia for the
“foreseeable future, ” (dkt. 47-1 at 1), and a
W-2 form indicating that his employer withheld Virginia
income taxes in 2017, (dkt. 91-2)-is insufficient to rebut
the presumption of Texas domicile created by his active voter
registration in Texas.
additional factors weigh in favor of finding that Stranahan
was domiciled in Texas at the time Gilmore filed this action.
First, although Stranahan presents W-2 forms indicating his
employer withheld Virginia income taxes in 2017, (dkt. 91-2),
his statement that he had not actually “filed a
Virginia Income Tax Return” but rather “filed for
an extension” diminishes the significance of this
evidence. (Dkt. 47-1 at 1). Second, Stranahan does not
dispute Gilmore's allegation that he solicited payments
“via a Pay-Pal account belonging to Stranahan
Strategies, ” which Texas Comptroller records indicate
is an inactive Texas LLC. (Dkts. 70 at 20; 70-5).
Stranahan currently rents an apartment in a “We Live/We
Work complex” in Arlington, Virginia. Gilmore
alleges that this complex is a “temporary shared
housing community where patrons are able to utilize living
and office space without a long-term commitment.” (Dkt.
70 at 20-21). Although Stranahan's residence in such a
housing complex does not necessarily preclude him from
establishing domicile in Virginia, it suggests he has not
made a permanent home in Virginia. Fourth, Stranahan has been
evasive about where his family, specifically his wife,
resided at the time this action was filed. Gilmore alleges
that Stranahan's wife is actively registered to vote in
Texas and that she voted there as recently as 2016.
(Id. at 20). Although Stranahan avers in his
declarations that he had “no immediate family” in
Texas in 2017, (dkt. 47-1), and that “to the best of
[his] knowledge, no one related to [him] by blood or marriage
has lived in Texas since November 2016, ” (dkt. 91-1),
Stranahan does not assert that his wife or any other family
member lived in Virginia when this action was
filed. Indeed, Stranahan has never revealed
where his wife resided when this action was filed, and his
counsel could not answer questions on this subject at oral
the Court finds that Gilmore has established by a
preponderance of the evidence that Stranahan was domiciled in
Texas at the time this action was filed. Thus, §
1332(a)'s requirement of complete diversity is satisfied.
Amount in Controversy
Creighton, Hoft, Stranahan, Wilburn, Hickford, and
Words-N-Ideas argue that Gilmore fails to allege an amount in
controversy in excess of $75, 000. (Dkt. 46).
a plaintiff invokes federal-court jurisdiction, the
plaintiff's amount-in-controversy allegation is accepted
if made in good faith.” Dart Cherokee Basin
Operating Co., LLC v. Owens, 135 S.Ct. 547, 553 (2014).
“If the plaintiff claims a sum sufficient to satisfy
the statutory requirement, a federal court may dismiss only
if it is apparent, to a legal certainty, that the plaintiff
cannot recover the amount claimed.” JTH Tax, Inc.
v. Frashier, 624 F.3d 635, 638 (4th Cir. 2010). Parties
seeking dismissal for an insufficient amount in controversy
“shoulder a heavy burden” of demonstrating that
the “legal impossibility” of the claimed recovery
is “so certain as virtually to negative the
plaintiff's good faith in asserting the claim.”
Gilmore alleges defamation per se against
Defendants, and seeks “an amount greater than $75,
000” from each defendant for “presumed damages,
as well as actual, reputational, emotional, and professional
injuries” suffered as a “direct and
proximate” result of Defendants' publications.
(See, e.g., Am. Comp. ¶¶ 214-15, 232).
Gilmore also seeks damages “in an amount greater than
$75, 000” from each defendant for his IIED claims, for
the “severe emotional distress, ” physical
ailments, and “irreparable damage to his professional
reputation” he has experienced as a “result of
Defendants' actions.” (Id. ¶¶
respect to Gilmore's defamation claims, Defendants assert
that Gilmore impermissibly “includes harms caused by
the wrongful conduct of third parties” (i.e.,
individuals not named as defendants who allegedly harassed
Gilmore because of Defendants' publications) in his
calculation of damages. (Dkt. 47 at 23, 25). Defendants argue
that Virginia law does not permit “the wrongful actions
of third parties to be included in the calculation of damages
at all.” (Id. at 23). With respect to
Gilmore's IIED claims, Defendants contend that the
essence of the harm Gilmore alleges is the
“distress” caused by “third parties who are
not named as defendants, ” but that Gilmore fails to
allege Defendants “incited” these third parties
to harm him under Brandenburg v. Ohio, 395 U.S. 444
fail to shoulder their “heavy burden” of
establishing the “legal impossibility” of
Gilmore's claimed recovery. JTH Tax, 624 F.3d at
638. Defendants do not adequately support either of their
arguments with binding precedent. Moreover, Defendants'
arguments are substantively without merit. With respect to
Gilmore's defamation claims, Defendants mischaracterize
Gilmore's damages calculation as “always”
including the “wrongful conduct of third parties,
” (dkt. 47 at 25), as the complaint plainly alleges
that Defendants' publications themselves were the cause
of Gilmore's alleged injuries. (Am. Comp. ¶ 215).
With respect to Gilmore's IIED claims, consideration of
any First Amendment defense is inappropriate at this stage.
See Zulveta v. State Auto. Mut. Ins. Co., No.
6:15-2880, 2015 WL 9286698, at *4 (D. S.C. Nov. 30, 2015)
(“[W]here the plaintiff makes his claim in obvious good
faith, it is sufficient for jurisdictional purposes”
even where the defendant may have “a valid
defense.” (quoting McDonald v. Patton, 240
F.2d 424, 425 (4th Cir. 1957))). Moreover, to the extent that
Defendants' argument concerning third parties is
essentially a claim that Gilmore fails to adequately plead
the causation element of IIED, such arguments are cognizable
under Rule 12(b)(6), not Rule 12(b)(1).
the Court finds that it can exercise diversity jurisdiction
over this action. Defendants' motions to dismiss pursuant
to Rule 12(b)(1), (dkts. 46; 58), will be denied.
Rule 12(b)(2) - Personal Jurisdiction over
Defendants except Stranahan move to dismiss pursuant to
Rule 12(b)(2), arguing that this Court cannot exercise
personal jurisdiction over them. (Dkts. 46; 56; 58).
standard of review for personal jurisdiction issues
“varies according to the posture of the case and the
evidence that has been presented to the court.”
Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir.
2016). Where, as here, a district court “considers a
question of personal jurisdiction based on the contents of a
complaint and supporting affidavits, the plaintiff has the
burden of making a prima facie showing in support of
its assertion of jurisdiction.” Universal Leather,
LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014).
In conducting its analysis, the court “must construe
all relevant pleading allegations in the light most favorable
to the plaintiff, assume credibility, and draw the most
favorable inferences for the existence of
court to “assert personal jurisdiction over a
nonresident defendant, two conditions must be satisfied: (1)
the exercise of jurisdiction must be authorized under the
state's long-arm statute; and (2) the exercise of
jurisdiction must comport with the due process requirements
of the Fourteenth Amendment.” Carefirst of Md.,
Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390,
396 (4th Cir. 2003). “Because Virginia's long-arm
statute extends personal jurisdiction to the outer bounds of
due process, the two-prong test collapses into a single
inquiry when Virginia is the forum state.” Tire
Eng'g & Distrib., LLC v. Shandong Linglong Rubber
Co., Ltd., 682 F.3d 292, 301 (4th Cir. 2012). “A
Virginia court thus has jurisdiction over a nonresident
defendant if the exercise of such jurisdiction is consonant
with the strictures of due process.” Id.
court's exercise of jurisdiction over a nonresident
defendant comports with due process if the defendant has
‘minimum contacts' with the forum, such that to
require the defendant to defend its interests in the state
‘does not offend the traditional notions of fair play
and substantial justice.'” Carefirst, 334
F.3d at 397 (quoting Int'l Shoe Co. v. Wash.,
326 U.S. 310, 316 (1945)). The standard for determining
whether personal jurisdiction over a nonresident defendant
exists varies “depending on whether the defendant's
contacts with the forum state also provide the basis for the
suit.” Id. If a defendant's contacts form
the basis for the suit, those contacts may establish
“specific jurisdiction.” Id. “If,
however, the defendant's contacts with the state are not
also the basis for the suit, then jurisdiction over the
defendant must arise from the defendant's general, more
persistent but unrelated contacts with the state.”
General Personal Jurisdiction
establish general jurisdiction, the defendant's
activities in the state must have been ‘continuous and
systematic.'” Carefirst, 334 F.3d at 397.
Gilmore presents no argument that the Court can exercise
general personal jurisdiction over Creighton, Hoft, McAdoo,
Stranahan, Wilburn, Hickford, Words-N-Ideas, or West, and the
Court sees no indicia that these defendants have
“general, “persistent, ”
“continuous[, ] and systematic” contacts with
Virginia. Id.Gilmore presents two
arguments why the Court can exercise general personal
jurisdiction over Jones, InfoWars, and Free Speech Systems.
Both fail. First, Gilmore contends that these defendants have
“sold and delivered [InfoWars-branded] dietary
supplements to persons residing in Virginia” through
their online stores, and “a substantial portion of this
revenue is the result of transactions with individuals in
Virginia.” (Am. Comp. ¶ 10; dkt. 70 at 25-26). But
“mere purchases, even if occurring at regular intervals
. . . are not enough to warrant a [s]tate's assertion of
in personam jurisdiction over a nonresident
corporation in a cause of action not related to those
purchase transactions.” Daimler AG v. Bauman,
571 U.S. 117, 131 (2014).
Gilmore contends that these defendants “engage in
significant reporting activities in Virginia, ” citing
coverage of a book banning in a Virginia school, events in
Chantilly, Virginia, and the Unite the Right rally. (Am.
Comp. ¶ 11; dkt. 70 at 25-26). But such “single or
isolated items of activities in a state” are not
sufficient to subject a defendant to the state's general
jurisdiction. Pharmabiodevice Consulting, LLC v.
Evans, No. GJH-14-00732, 2014 WL 3741692, at *7 (D. Md.
July 28, 2014) (quoting Int'l Shoe Co., 326 U.S.
at 317). See also Daimler AG, 571 U.S. at 133, n.11
(“[G]eneral jurisdiction requires affiliations so
continuous and systematic as to render the foreign
corporation essentially at home in the forum State.”).
Thus, the Court cannot exercise general personal jurisdiction
over any defendant.
Specific Personal Jurisdiction
personal jurisdiction is “confined to adjudication of
issues deriving from, or connected with, the very controversy
that establishes jurisdiction.” Goodyear Dunlop
Tire Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011). To warrant the exercise of specific personal
jurisdiction, a “defendant must have purposefully
established minimum contacts in the forum State such that
[it] should reasonably anticipate being haled into court
there.” Perdue Foods LLC v. BRF S.A., 814 F.3d
185, 189 (4th Cir. 2016). The Fourth Circuit employs “a
three-part test to determine whether the exercise of specific
personal jurisdiction over a nonresident defendant”
comports with due process, examining “(1) the extent to
which the defendant purposefully availed itself of the
privilege of conducting activities in the forum state; (2)
whether the plaintiff's claims [arose] out of those
activities; and (3) whether the exercise of personal
jurisdiction is constitutionally reasonable.”
Universal Leather, 773 F.3d at 559. In deciding
whether it can exercise specific personal jurisdiction over a
defendant, “a court must weigh the totality of the
facts before it.” Perdue Foods, 814 F.3d at
189. The court “should not merely . . . count [a
defendant's] contacts [with the forum state] and
quantitatively compare this case to other preceding
cases.” Carefirst, 334 F.3d at 397.
“Even a single contact may be sufficient to create
jurisdiction when the cause of action arises out of that
single contact, provided that the principle of fair play and
substantial justice is not thereby offended.”
assessing whether Defendants' contacts with Virginia
support specific personal jurisdiction, three decisions are
particularly salient. In Calder v. Jones, 465 U.S.
783, 788-89 (1984), the Supreme Court held that a California
court could exercise personal jurisdiction over two Florida
newspapermen in a libel action arising out of a National
Enquirer article written in Florida but
“concern[ing] the California activities” of
Shirley Jones, a Hollywood actress and California resident.
The Court noted that the “article was drawn from
California sources, and the brunt of the harm, in terms both
of [Jones's] emotional distress and the injury to her
professional reputation, was suffered in California.”
Id. Because “California [was] the focal point
both of the story and of the harm suffered, ”
jurisdiction was “proper in California based on the
‘effects' of [defendants'] Florida conduct in
California.” Id. at 789.
Fourth Circuit has adapted the Calder
“effects” test for cases involving online
activity in two important decisions. In ALS Scan, Inc. v.
Dig. Serv. Consultants, Inc., 293 F.3d 707, 714 (4th
Cir. 2002), the Fourth Circuit held that “a State may,
consistent with due process, exercise judicial power over a
person outside of the State when that person (1) directs
electronic activity into the State, (2) with the manifested
intent of engaging in business or other interactions within
the State, and (3) that activity creates, in a person within
the State, a potential cause of action cognizable in the
State's courts.” Applying this standard, the Fourth
Circuit found that a Maryland court could not exercise
specific personal jurisdiction over a Georgia-based Internet
service provider (ISP) whose only role in the alleged
trademark infringement was “provid[ing]
bandwidth” that allowed another company “to
create a website and send information over the
Internet.” Id. at 714-15 (noting that the
ISP-defendant “did not select or knowingly transmit
infringing photographs” or “direct its electronic
activity specifically at any target in Maryland”).
Young v. New Haven Advocate, 315 F.3d 256, 263 (4th
Cir. 2002), the Fourth Circuit refined the ALS Scan
test for cases where “the Internet activity” at
issue involves “the posting of news articles on a
website.” In such cases, the test “works more
smoothly when parts one and two” are “considered
together, ” such that courts ask “whether the
[defendants] manifested an intent to direct their website
content . . . to a Virginia audience.” Id. The
fact that a defendant's website can “be accessed
anywhere, including Virginia, does not by itself demonstrate
that the [defendant was] intentionally directing their
website content to a Virginia audience.” Id.
“Something more than posting and accessibility is
needed”-the “general thrust and content” of
the online publications must “manifest an intent to
target and focus on Virginia readers.” Id.
this standard in Young, the Fourth Circuit
determined that a Virginia court could not exercise specific
personal jurisdiction over Connecticut newspapers that
published online articles commenting on conditions at a
Virginia prison and allegedly defaming Young, a warden at the
prison, in the midst of reporting on the “Connecticut
prison transfer policy.” Id. at 263-64. The
Fourth Circuit reasoned that (1) the “content of the
websites [was] decidedly local, and neither newspaper's
website contain[ed] advertisements aimed at a Virginia
audience, ” and (2) “Connecticut, not
Virginia, was the focal point of the articles.”
deciding whether to exercise specific personal jurisdiction
over Defendants, the Court must ask whether (1) each
defendant “manifested an intent to direct their website
content” to a “Virginia audience, ”
Young, 315 F.3d at 263, such that the defendant
“should reasonably anticipate being haled into
court” in Virginia, Perdue Foods, 814 F.3d at
189; and (2) whether each defendant's activity
“creates, in a person within the State, a potential
cause of action” under Virginia law. ALS Scan,
293 F.3d at 714. Below, the Court undertakes this inquiry for
each of the eleven defendants by examining each of the
allegedly tortious publications at issue.
Creighton's American Everyman Article &
August 13, 2017, Creighton published an article on the
American Everyman website entitled
“Charlottesville Attack, Brennan Gilmore and . . .
the STOP KONY 2012 Pysop? What.” (Dkt.
29-1). In the article, Creighton asked readers
to “look at the video Brennan Gilmore posted of the
Charlottesville attack” to see “[s]omething very
odd and OBVIOUS.” (Id. at 2 (emphasis in
original)). Noting Gilmore's “rather
suspicious positioning, ” Creighton wrote that Gilmore
“filmed Fields's car “heading all the way
down the street into the crowd of protestors . . . almost as
if he knew it would run into them rather than simply brake
and sit and wait like the cars in front of it.”
(Id. at 4-5). Creighton wrote that Gilmore is a
“former State Department employee” and “was
also part of” Tom Perriello's 2017 Virginia
gubernatorial campaign, describing Perriello's record and
ideological views at length. (Id. at 6-8). Creighton
questioned whether it is “possible” that Gilmore,
a “convenient witness” with “links to
Special Ops and CIA and various other black ops kinds of
actors[, ] just HAPPENED to be there” at the
“particular moment” of Fields's attack.
(Id. at 9). Stating that he is “not
into” such “coincidence theories, ”
Creighton wrote that “Gilmore, like Tom [Perriello],
seem[s] particularly invested in undermining the
‘alt-right' in the lead-up to the next round of
alleges that Creighton posted a video entitled
“Charlottesville Attack - Brennan Gilmore: Witness
or Accessory” to his YouTube channel on August 13,
2017. (Am. Comp. ¶¶ 46-50). In the video, Creighton
allegedly stated: “This guy happens to be on that
fucking corner with his camera rolling, watching that car
drive by for five seconds, and he's former State
Department, and close to Tom Perriello, who is also former
State Department obviously, he's got a fucking ax to
grind, that's one hell of a goddamn coincidence, and you
got to be a special kind of stupid to buy that.”
(Id. ¶ 14). Creighton also allegedly stated
that he was “suggesting” that “someone had
foreknowledge that this event [i.e., Fields's
attack] was going to happen.” (Id.).
the “general thrust” of Creighton's article
and video, Young, 315 F.3d at 263, the Court
concludes that both were sufficiently targeted at a Virginia
audience such that Creighton should have “anticipate[d]
being haled into court in” Virginia to defend his
statements. Perdue Foods, 814 F.3d at 189. Although
neither the American Everyman website nor YouTube
channel has a Virginia-specific focus,  the exclusive
focus of Creighton's publications was a Virginia event
and a Virginia citizen. Indeed, the title of both the article
and video references the “Charlottesville Attack”
and “Brennan Gilmore.” (Dkt. 29-1). These
publications' Virginia-specific focus is further
reinforced by Creighton's discussion in both of
Perriello, a Virginia gubernatorial candidate. Thus, unlike
in Young, 315 F.3d at 263, the “focal
point” of Creighton's publications was a Virginia
event and citizen, making his publications of particular
interest to a Virginia audience. Additionally, Gilmore
alleges that the harm he suffered as a result of
Creighton's online postings occurred in Virginia, where
he lives and works. (Am. Comp. ¶¶ 179-88).
Accordingly, as in Calder, 465 U.S. at 789, personal
jurisdiction is warranted in Virginia because Virginia is
“the focal point both of [Creighton's publications]
and of the harm suffered.” Moreover, unlike the
“passive” ISP-defendant in ALS Scan, 293
F.3d at 714, Creighton wrote the article, spoke in the video,
and published both on platforms he owns and operates. (Dkt.
47-2). Lastly, Gilmore's claims against Creighton arise
directly from Creighton's publications. See ALS
Scan, 293 F.3d at 714.
since Creighton “manifested an intent to direct his
website content” at a Virginia audience, 
Young, 315 F.3d at 263, the Court finds that it can
exercise specific personal jurisdiction over him.
Hoft's Gateway Pundit Article
August 14, 2017, Hoft published an article on The Gateway
Pundit website entitled “Random Man at
Protests Interviewed by MSNBC, NY Times Is Deep State Shill
Linked to George Soros.” (Am. Comp. ¶ 62,
dkt. 29-5). Hoft wrote that the “random Charlottesville
observer” (i.e., Gilmore) is a “deep
state shill with links to George Soros, ” and that
“[i]t looks like the State Department was involved in
Charlottesville rioting and is trying to cover it up.”
(Dkt. 29-5 at 2, 4). After noting that Gilmore was
“Chief of Staff for liberal Rep. Tom Perriel[l]o,
” Hoft embedded screenshots of articles about Gilmore
and Perriello from Augusta Free Press, a news-site
covering Waynesboro, Staunton, and Augusta County, Virginia,
and the Richmond Times Dispatch. (Id. at
then quoted the following statement, among others, from a
Reddit thread: “So the former Chief of Staff for Tom
Perriel[l]o who ran in the Virginia gubernatorial election
and whose campaign received a ridiculous amount of
‘dark money', including $380k from George Soros . .
. also happened to go viral and was interviewed because he
just happened to be close to the Charlottesville
event.” (Id. at 8). Hoft concluded by writing
in his own words: “This weekend Brennan Gilmore
happened to be in Charlottesville with the rioters. The media
knows exactly who he is yet played it off like a casual
observer. This is how the Deep State is working with the
liberal media to shape [the] narrative and fool the American
Court finds that the “general thrust and content”
of Hoft's article was sufficiently targeted at a Virginia
audience to warrant the exercise of specific personal
jurisdiction over Hoft. Young, 315 F.3d at 263.
Although The Gateway Pundit does not have a
Virginia-specific focus, Hoft's article was exclusively
about a particular Virginia citizen's participation in a
Virginia event. Indeed, the title makes clear that the
article's focus is a “Random Man”
(i.e., Gilmore) “at Protests.” (Dkt.
29-5 at 1). The Virginia-specific focus of the article is
further emphasized by Hoft's discussion of Perriello, a
Virginia political figure, and by Hoft's use of articles
by local Virginia newspapers as sources for his assertions.
See Calder, 465 U.S. at 788 (noting that the article
at issue, although written in Florida, “was drawn from
California sources”). Unlike in Young, the
exclusive focus of Hoft's article is a Virginia event and
citizen, and, unlike the ISP-defendant in ALS Scan,
Hoft's involvement with this allegedly tortious article
was not merely passive. Rather, Hoft authored and published
the article. (Dkt. 47-3 at 2). As with Creighton's
publications, Virginia was “the focal point both
of” Hoft's ...