United States District Court, W.D. Virginia, Charlottesville Division
Brennan M. Gilmore, Plaintiff,
Alexander “Alex” E. Jones, et al., Defendants.
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
Norman K. Moon This matter is before the Court upon
Defendants Alex Jones, Lee Ann McAdoo, InfoWars, LLC, and
Free Speech Systems, LLC's (“FSS Defendants”)
Motion to Reconsider or Certify for Interlocutory Appeal
(Dkt. 133) and Defendants Derrick Wilburn, Michele Hickford,
James Hoft, R. Scott Creighton, and Words-N-Ideas, LLC's
(“WNI Defendants”) Joint Motion to Reconsider or
Certify for Interlocutory Appeal (Dkt. 137). For the reasons
stated herein, FSS Defendants' Motion to Certify for
Interlocutory Appeal will be GRANTED. WNI
Defendants' Motion to Reconsider or Certify on Other
Grounds will be DENIED. The Court will
certify the following question for interlocutory appeal:
Where an online journalist or publisher with a national
audience purposefully and primarily focuses their coverage
underlying the suit-related conduct on forum-state events and
persons, is such conduct sufficient for a forum court to
assert specific personal jurisdiction over that journalist or
Brennan M. Gilmore brought this diversity action against
several “alt-right” journalists and online
publishers, seeking to recover on defamation and intentional
infliction of emotional distress (“IIED”) claims
arising out of Defendants' coverage of the August 12,
2017 “Unite the Right” (“UTR”) rally
in Charlottesville, Virginia, as it pertained to Plaintiff.
(Dkt. 48). Defendants moved to dismiss Plaintiff's
complaint based on Plaintiff's failure to state a claim
upon which relief can be granted under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, lack of subject matter
jurisdiction under Rule 12(b)(1), and lack of personal
jurisdiction under Rule 12(b)(2). (Dkt. 56, 58). On March 29,
2019, the Court granted Defendants' motion to dismiss
Plaintiff's IIED claim against them under 12(b)(6), but
it maintained Plaintiff's defamation action. To this end,
the Court concluded that it had both subject-matter and
personal jurisdiction to hear these claims against the
remaining Defendants and that Plaintiff's allegations
sufficed to survive a 12(b)(6) motion. (Dkt. 123, 124).
Defendants now move this Court to reconsider its personal
jurisdiction ruling pursuant to Fed.R.Civ.P. 54(b). (Dkt.
133). In the alternative, they ask the Court to certify the
issue for interlocutory appeal under 28 U.S.C. §
1292(b). Id. WNI Defendants join FSS Defendants'
motion, while also seeking reconsideration or certification
of the Court's interpretation of Virginia's long-arm
statute. (Dkt. 137).
court's refusal to dismiss a claim under Fed.R.Civ.P. 12
“may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties'
rights and liabilities.” Fed.R.Civ.P. 54(b). Even so,
the Court only departs from a prior decision if that decision
“was clearly erroneous and would work manifest
injustice.” Am. Canoe Ass'n v. Murphy Farms,
Inc., 326 F.3d 505, 515 (4th Cir. 2003) (internal
citations omitted). Motions for reconsideration are granted
only “sparingly” because “reconsideration
is not meant to re-litigate issues already decided, provide a
party the chance to craft new or improved legal positions,
highlight previously-available facts, or otherwise award a
proverbial ‘second bite at the apple' to a
dissatisfied litigant.” Wootten v. Virginia,
168 F.Supp.3d 890, 893 (W.D. Va. 2016). Rather,
reconsideration is appropriate in very narrow circumstances:
(1) an intervening change in the law, (2) new evidence that
was not previously available, or (3) correction of a clear
error of law or to prevent manifest injustice. LaFleur v.
Dollar Tree Stores, Inc., 2014 WL 2121563, at *1 (E.D.
Va. May 20, 2014).
their briefing, FSS Defendants go to great lengths to argue
why and how this Court's personal jurisdiction ruling was
incorrect, but they make almost no attempt to argue why
reconsideration is warranted-or even permissible-in this
context under Rule 54(b). FSS Defendants cite no case law holding
that reconsideration is proper under these facts; for the
most part, they merely rehash arguments this Court has
already considered and rejected. Regardless, reconsideration
is not an occasion “to present a better and more
compelling argument that the party could have presented in
the original briefs, ” Madison River v. Business
Management Software Corp., 402 F.Supp.2d 617, 619 (M.D.
N.C. 2005), or to “introduce evidence that could have
been addressed or presented previously, ” Regan v.
City of Charleston, S.C., 40 F.Supp.3d 698, 702 (D.S.C.
2014). In sum, “a party who fails to present his
strongest case in the first instance generally has no right
to raise new theories or arguments in a motion to
reconsider.” United States v. Duke Energy
Corp., 218 F.R.D. 468, 473 (M.D. N.C. 2003). FSS
Defendants do not allege that there has been any new
intervening law, that there is new evidence not previously
available, and, FSS Defendants have failed to demonstrate
that the Court's decision constituted a “clear
error” of law.
Defendants make even less of a showing than the FSS
Defendants in establishing proper grounds for reconsideration
under Fed.R.Civ.P. 54(b). Although WNI Defendants cite a
recent case from the Supreme Court of Virginia, Mercer v.
MacKinnon, 823 S.E.2d 252 (Va. 2019), through which WNI
Defendants could perhaps have argued constituted new or
intervening law, this ruling does not help their present
case. As Plaintiff correctly argues in his brief, (Dkt. 145
at 8), the Supreme Court of Virginia's review was very
limited in its scope because of the posture of the appeal.
See Mercer, 823 S.E.2d at 254 (“[A]lthough
Mercer raised alternative grounds for the exercise of
personal jurisdiction over MacKinnon in the circuit court
proceedings on the plea in bar and motion to dismiss, we
confine our review on appeal to whether the circuit court
could exercise jurisdiction over MacKinnon under the
‘persistent course of conduct' provision of the
long arm statute.” (quoting Va. Code §
8.01-328.1(A)(4) (2019))). Nowhere did the Mercer
court hold that the Virginia long-arm statute was no longer
coextensive with the limits of the Due Process Clause. Such a
ruling would indeed sharply contrast with Virginia federal
courts' consistent interpretation of the long-arm
statute. E.g., Edwards v. Schwartz, 378
F.Supp.3d 468, 488 (W.D. Va. 2019) (quoting Young v. New
Haven Advocate, 315 F.3d 256, 261 (4th Cir. 2002))
(“Virginia's long-arm statute extends personal
jurisdiction to the extent permitted by due process, and
therefore “the statutory inquiry necessarily merges
with the constitutional inquiry, and the two inquiries
essentially become one.”); see also Mondul v.
Biomet, Inc., 2019 WL 2619541, at *1 (W.D. Va.
26, 2019); Gratz v. Gratz, 2019 WL 1646541, at *2
(E.D. Va. Apr. 16, 2019); JUUL Labs, Inc. v.
Unincorporated Ass'n Indentified in Schedule A, 2019
WL 1511883, at *1 (E.D. Va. Mar. 20, 2019).
Mercer's analysis of a specific and limited
portion of Virginia's long-arm statute is not
representative of how Virginia courts approach personal
jurisdiction questions as a matter of course. Therefore, WNI
Defendants' motion to reconsider also fails.