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Gilmore v. Jones

United States District Court, W.D. Virginia, Charlottesville Division

September 16, 2019

Brennan M. Gilmore, Plaintiff,
v.
Alexander “Alex” E. Jones, et al., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

         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[1] 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 publisher?[2]

         Introduction

         Plaintiff 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).

         FSS 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).

         Reconsideration

          A 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).

         i. FSS Defendants

         In 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).[3] 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.

         ii. WNI Defendants

         WNI 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.

         June 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.

         Certification for ...


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