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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.

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

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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

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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,

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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

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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.
Washington, DC 20036-5304
Telephone: (202) 861-1500
Facsimile: (202) 861-1783
escully@bakerlaw.com

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Attachment 1

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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

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Attachment 2

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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 -- 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

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Attachment 3

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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
 
Confidentiality Notice — This message and any files attached to it may contain confidential information protected by the attorney-
client privilege and/or the work product doctrine. The information is only for the use of the individual to whom the sender intended to
send the information. If you are not such individual, any disclosure, copying, distribution, or reliance upon this email is prohibited. If
you received this email in error, please reply to notify the sender, and please delete your copy. Thank you.
 

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Attachment 4

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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
 
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
 
Confidentiality Notice — This message and any files attached to it may contain confidential information protected by the attorney-
client privilege and/or the work product doctrine. The information is only for the use of the individual to whom the sender intended to
send the information. If you are not such individual, any disclosure, copying, distribution, or reliance upon this email is prohibited. If
you received this email in error, please reply to notify the sender, and please delete your copy. Thank you.
 
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;
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
 
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

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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
Washington, DC 20036-5304
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

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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
 
Confidentiality Notice — This message and any files attached to it may contain confidential information protected by the attorney-
client privilege and/or the work product doctrine. The information is only for the use of the individual to whom the sender intended to
send the information. If you are not such individual, any disclosure, copying, distribution, or reliance upon this email is prohibited. If
you received this email in error, please reply to notify the sender, and please delete your copy. Thank you.
 
 

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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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