Ecf 84

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA

CHARLOTTESVILLE DIVISION
BRENNAN M. GILMORE,
Plaintiff,
v. Case No. 3:18- cv-00017 (GEC)
ALEXANDER E. JONES, et al.,
Defendants.
OPPOSITION TO MOTION TO FILE AMICUS BRIEF

Defendants Alex Jones, Lee Ann McAdoo, Infowars, LLC, and Free Speech Systems,
LLC (collectively, the “Free Speech Defendants”), oppose the motion of non-party litigants
Leonard Pozner, Veronique de la Rosa, and Neil Heslin to file an amicus brief in this case and
respectfully urge the Court to deny it.
There is no right to participate as an amicus before the Court. In re Halo Wireless, Inc.,
684 F.3d 581, 596 (5th Cir. 2012); Nat’l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 616
(7th Cir. 2000). Instead, “[t]he privilege of being heard amicus rests in the discretion of the court
which may grant or refuse leave according as it deems the proffered information timely, useful,
or otherwise.” Leigh v. Engle, 535 F. Supp. 418, 420 (N.D. Ill. 1982). “[A]cceptance of an
intervenor as amicus curiae should be allowed only sparingly.” Donovan v. Gillmor, 535 F. Supp.
154, 159 (N.D. Ohio 1982). The Court should exercise its discretion to deny the motion for three
reasons.
First, the motion is untimely and burdensome. Pursuant to the Court’s scheduling order,
the Plaintiff filed his response to the Defendants’ motions to dismiss on June 20, 2018. ECF No.
52 at 2. Defendants have until July 10, approximately two and a half weeks, to respond to what is
now already over 135 pages of material. Id. Adding additional pages at this late stage prejudices
the Defendants, particularly in light of the past case delays due to the Plaintiff’s amendments to
his complaint and the complicated scheduling caused by the case’s many participants. Additional
participants will only encumber the briefing and scheduling processes further. Moreover, it is
Case 3:18-cv-00017-NKM-JCH Document 84 Filed 06/26/18 Page 1 of 5 Pageid#: 1386

plain from correspondence with counsel to the amici that the amici were well aware of the
briefing schedule at least as of the time the Plaintiff’s brief was due, see Attachments 1, 2, but
nonetheless delayed until now to file the brief. They further delayed in informing the parties
about the length of the brief, issues to be addressed, interest of the amici, or even when they
intended to file the brief until a week after the Plaintiff and his other amici filed their briefs. See
Attachments 3, 4. And, although they informed Defendants’ counsel that their proposed brief is
“only five pages in length,” Motion ¶ 4, it includes over 40 pages of attachments, see ECF No.
83-1.
Second, the proposed amicus brief consists almost entirely of extra-record materials
irrelevant to the legal issues presented by the Defendants’ motions to dismiss. Information that is
not relevant is, by definition, not “useful” to the Court. Leigh, 535 F. Supp. at 420. Moreover, the
proposed amici are not law professors, government agents, or trade groups with unique
knowledge that may “provide helpful analysis of the law.” Bryant v. Better Bus. Bureau of
Greater Maryland, Inc., 923 F. Supp. 720, 728 (D. Md. 1996). They are litigants in a separate
case who apparently have an axe to grind with these Defendants. But amicus participation is not
appropriate to “present a partisan view of the facts,” Tiara Corp. v. Ullenberg Corp., 1987 WL
16612, at *2 (N.D. Ill. Sept. 1, 1987)—especially when the facts known to the proposed amici
are from a separate and unrelated case and are doubly irrelevant to motions under Rule 12, where
only the pleadings count.
Third, the proposed amici do not have an “interest” that might be affected “by operation
of stare decisis or res judicata.” Laborers Local 236, AFL-CIO v. Walker, 2013 WL 4875995, at
*3 (W.D. Wis. Sept. 11, 2013). The claim the proposed amici have brought in Connecticut has
nothing to do with the Charlottesville incident that was the subject of the statements the Plaintiff
here claims are defamatory. And, because federal courts are not forums in which to try persons’
character, see Fed. R. Evid. 404, neither claim, even if proven, would be relevant to liability in
the other case. The proposed amici have no legitimate interest in meddling in this case to allege a
supposed “reckless pattern of defamation as it relates to these issues.” Motion ¶ 1. Whatever
2
basis the amici think they have to proceed against the Defendants in Connecticut, they must
assert it in that case—not here.
For these reasons, the motion should be denied.
June 26, 2018 Respectfully submitted,
3
TREMBLAY & SMITH, PLLC BAKER HOSTETLER LLP
Thomas E. Albro (VSB #12812) /s/ Elizabeth A. Scully

Evan D. Mayo (VSB #89383) Elizabeth A. Scully (VSB #65920)
105-109 E. High Street Mark I. Bailen (Pro Hac Vice forthcoming)
Charlottesville, VA 22902 Andrew M. Grossman (Pro Hac Vice
Telephone: (434) 977-4455 forthcoming)
Facsimile: (434) 979-1221 Richard B. Raile (VSB #84340)
tom.albro@tremblaysmith.com Washington Square, Suite 1100
evan.mayo@tremblaysmith.com 1050 Connecticut Avenue, N.W.
Washington, DC 20036-5304
Co-Counsel for Defendants Alexander E. Telephone: (202) 861-1500
Jones, Infowars, LLC, Free Speech Systems, Facsimile: (202) 861-1783
LLC and Lee Ann McAdoo a/k/a Lee Ann escully@bakerlaw.com
Fleissner mbailen@bakerlaw.com
agrossman@bakerlaw.com
rraile@bakerlaw.com
Counsel for Defendants Alexander E. Jones,

Infowars, LLC, Free Speech Systems, LLC
and Lee Ann McAdoo a/k/a Lee Ann Fleissner
WALLER LANSDEN DORTCH & DAVIS,

LLP
Eric J. Taube
100 Congress Avenue, Suite 1800
Austin, TX 78701
Telephone: (512) 685-6401
eric.taube@wallerlaw.com
Robb S. Harvey
511 Union Street, Suite 2700
Nashville, Tennessee 37219
Telephone: (615) 244-5380
robb.harvey@wallerlaw.com
Of Counsel for Defendants Alexander E.

Jones, Infowars, LLC, Free Speech Systems,
LLC and Lee Ann McAdoo a/k/a Lee Ann
Fleissner
4
CERTIFICATE OF SERVICE
I hereby certify that on June 26, 2018, I electronically filed the foregoing with the Clerk
of Court using the CM/ECF system, which will send notification of such filing to all counsel of
record.
/s/ Elizabeth A. Scully________________

Elizabeth A. Scully (VSB #65920)
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Telephone: (202) 861-1500
Facsimile: (202) 861-1783
escully@bakerlaw.com

Attachment 1
Case 3:18-cv-00017-NKM-JCH Document 84-1 Filed 06/26/18 Page 1 of 2 Pageid#: 1391

From: Jason Eisner
To: Scully, Elizabeth; Grossman, Andrew M; Bailen, Mark; Raile, Richard; tom.albro@tremblaysmith.com;
evan.mayo@tremblaysmith.com; AaronJW1972@gmail.com; tbrooks@thomasmore.org;
djensen@dalejensenlaw.com; rthompson@thomasmore.org
Subject: Gilmore v. Jones No. 18-17-NKM, U.S. District Court, Western District of Virginia
Date: Thursday, June 21, 2018 3:54:43 PM
Please be advised that I am serving as pro bono local counsel in the above captioned matter on
behalf of the parents of children killed at Sandy Hook Elementary School. I intend to file an
amicus curiae brief in this matter. Please advise if you have any objections. Thank you.
Jason S. Eisner
P.O. Box 1185
Danville, VA 24543
(434)421-6875 phone/fax
jeisnerlaw@gmail.com

Attachment 2

From: Jason Eisner
To: Scully, Elizabeth; Grossman, Andrew M; Bailen, Mark; Raile, Richard; tom.albro@tremblaysmith.com;
Subject: Gilmore v. Jones -- PLEASE DISREGARD
Date: Thursday, June 21, 2018 4:13:09 PM
Please disregard the previous email message about my involvement in this case. Due to a
miscommunication, I mistakenly believed that I would be handling this matter. The amicus
has chosen another local counsel, and information should be furnished shortly. I apologize for
any confusion.
--JASON

Attachment 3

From: Michael Matheson
To: Brianne Gorod; Scully, Elizabeth; Grossman, Andrew M; Bailen, Mark; Raile, Richard;
tom.albro@tremblaysmith.com; evan.mayo@tremblaysmith.com; AaronJW1972@gmail.com;
tbrooks@thomasmore.org; djensen@dalejensenlaw.com; rthompson@thomasmore.org
Subject: Gilmore v. Jones, WDVA No. 18-17
Date: Monday, June 25, 2018 9:23:22 PM
Dear Counsel,

I write on behalf of Leonard Pozner, Veronique de la Rosa, and Neil Heslin, all of whom are
parents of the Sandy Hook shooting victims. We intend to motion the Court in the above-
referenced matter for leave to file an amicus curiae brief on behalf of these parents. I am
writing to request your consent. Please let me know if your clients consent to our appearance
in this matter for this limited purpose.

Thank you,

Michael G. Matheson, Esq.
ThompsonMcMullan, P.C.
P 804.698.5933 | F 804.780.1813
mmatheson@t-mlaw.com | t-mlaw.com
Twitter | LinkedIn | Facebook
100 Shockoe Slip | 3rd Floor | Richmond, Virginia 23219
MERITAS LAW FIRMS WORLDWIDE

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Attachment 4

From: Michael Matheson
To: Grossman, Andrew M; Brianne Gorod; Scully, Elizabeth; Bailen, Mark; Raile, Richard;
tom.albro@tremblaysmith.com; evan.mayo@tremblaysmith.com; AaronJW1972@gmail.com;
tbrooks@thomasmore.org; djensen@dalejensenlaw.com; rthompson@thomasmore.org
Subject: RE: Gilmore v. Jones, WDVA No. 18-17
Date: Tuesday, June 26, 2018 10:06:02 AM
Good morning Andrew,

Thank you for your response. Our brief is five pages, and addresses only the contention raised
by the defendants that the statements at issue are not defamatory/that they constitute rhetorical
hyperbole. The timing of our filing was delayed in part by the parents’ search for local
counsel. There is no nefarious intent in filing our motion this week.

Thank you for your consideration. Please let me know whether or not I have your consent so
that I can indicate your position in my motion.

Regards,

Mike

P 804.698.5933 | F 804.780.1813


From: Grossman, Andrew M <agrossman@bakerlaw.com>
Sent: Tuesday, June 26, 2018 9:07 AM
To: Michael Matheson <mmatheson@t-mlaw.com>; Brianne Gorod
<Brianne@theusconstitution.org>; Scully, Elizabeth <EScully@bakerlaw.com>; Bailen, Mark
<MBailen@bakerlaw.com>; Raile, Richard <rraile@bakerlaw.com>; tom.albro@tremblaysmith.com;
Subject: Re: Gilmore v. Jones, WDVA No. 18-17

Dear Mr. Matheson,

I am not sure that I understand your request. I don’t think that the rules require consent or leave for
you to file a notice of appearance or motion to appear PHV. Are you asking for our position on leave
to file an amicus brief?

If so, so that we can evaluate your request, can you please tell us when you intend to file, the

expected length of the brief, and the issue or issues you intend to address? As you may know, the
plaintiff’s opposition to the motions to dismiss was due and filed last week, and the defendants’
replies (which would presumably have to address any issues that you raise) are due in short order.
As your clients and their non-local counsel were apparently aware of the briefing schedule in this
case by last week at the latest, and probably long before that, is there some reason that they were
unable to timely file of which you plan to apprise the court? If so, that information would certainly
be relevant to your request.

Thank you.

Best,

Andrew

Andrew Grossman
Partner
Washington Square
1050 Connecticut Ave, N.W. | Suite 1100
T +1.202.861.1697
agrossman@bakerlaw.com
bakerlaw.com

From: Michael Matheson <mmatheson@t-mlaw.com>
Date: Monday, June 25, 2018 at 9:23 PM
To: Brianne Gorod <Brianne@theusconstitution.org>, "Scully, Elizabeth"
<EScully@bakerlaw.com>, "Grossman, Andrew M" <agrossman@bakerlaw.com>, "Bailen,
Mark" <MBailen@bakerlaw.com>, "Raile, Richard" <rraile@bakerlaw.com>,
"tom.albro@tremblaysmith.com" <tom.albro@tremblaysmith.com>,
"evan.mayo@tremblaysmith.com" <evan.mayo@tremblaysmith.com>,
"AaronJW1972@gmail.com" <AaronJW1972@gmail.com>, "tbrooks@thomasmore.org"
<tbrooks@thomasmore.org>, "djensen@dalejensenlaw.com" <djensen@dalejensenlaw.com>,
"rthompson@thomasmore.org" <rthompson@thomasmore.org>
Subject: Gilmore v. Jones, WDVA No. 18-17

Dear Counsel,

I write on behalf of Leonard Pozner, Veronique de la Rosa, and Neil Heslin, all of whom are
parents of the Sandy Hook shooting victims. We intend to motion the Court in the above-
referenced matter for leave to file an amicus curiae brief on behalf of these parents. I am
writing to request your consent. Please let me know if your clients consent to our appearance

in this matter for this limited purpose.

Thank you,

P 804.698.5933 | F 804.780.1813


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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
BRENNAN M. GILMORE,
Plaintiff,
v. Case No. 3:18- cv-00017 (GEC)
ALEXANDER E. JONES, et al.,
Defendants.
[PROPOSED] ORDER ON MOTION TO FILE AMICUS BRIEF
The motion of proposed amici Leonard Pozner, Veronique de la Rosa, and Neil Heslin is
hereby denied. The proposed amicus brief will not be filed with the Court and not taken into
consideration as to the pending motions to dismiss the Amended Complaint. It is so ordered.
The Clerk is directed to send a copy of this Order to counsel
Entered this ___ day of June, 2018
Norman K. Moon
Senior United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

OPPOSITION TO MOTION TO FILE AMICUS BRIEF

respectfully urge the Court to deny it.

Case 3:18-cv-00017-NKM-JCH Document 84 Filed 06/26/18 Page 1 of 5 Pageid#: 1386

only the pleadings count.

supposed “reckless pattern of defamation as it relates to these issues.” Motion ¶ 1. Whatever

assert it in that case—not here.

For these reasons, the motion should be denied.

June 26, 2018 Respectfully submitted,

Thomas E. Albro (VSB #12812) /s/ Elizabeth A. Scully

Counsel for Defendants Alexander E. Jones,

WALLER LANSDEN DORTCH & DAVIS,

Of Counsel for Defendants Alexander E.

/s/ Elizabeth A. Scully________________

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Case 3:18-cv-00017-NKM-JCH Document 84-4 Filed 06/26/18 Page 1 of 4 Pageid#: 1397

Good morning Andrew,

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Case 3:18-cv-00017-NKM-JCH Document 84-4 Filed 06/26/18 Page 3 of 4 Pageid#: 1399

Internet communications are not assured to be secure or clear of

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[PROPOSED] ORDER ON MOTION TO FILE AMICUS BRIEF

consideration as to the pending motions to dismiss the Amended Complaint. It is so ordered.

The Clerk is directed to send a copy of this Order to counsel

Entered this ___ day of June, 2018

Case 3:18-cv-00017-NKM-JCH Document 84-5 Filed 06/26/18 Page 1 of 1 Pageid#: 1401

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