IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DR. JEROME CORSI and §

LARRY KLAYMAN §

§

v. § A-20-CV-298-LY

§

INFOWARS, LLC, FREE SPEECH §

SYSTEMS, LLC, ALEX E. JONES, §

DAVID JONES, OWEN SHROYER, §

AND ROGER STONE §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL

UNITED STATES DISTRICT JUDGE 

Before the Court are Defendants Owen Shroyer’s Motion to Dismiss (Dkt. No. 55); Shroyer’s

Motion for Sanctions (Dkt. No. 56); David Jones’ Motion to Dismiss (Dkt. No. 57); Defendants

Infowars, LLC, Free Speech Systems, LLC, and Alex E. Jones’ Motions to Dismiss (Dkt. Nos. 58

and 59); Roger Stone’s Motion to Dismiss (Dkt. No. 70); Stone’s Motion for Sanctions (Dkt. No.

84); and the related response and reply briefs. The District Court referred these Motions to the

undersigned for report and recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of

Appendix C of the Local Rules.

I. FACTUAL BACKGROUND 

This is a defamation case. On March 7, 2019, Plaintiffs Dr. Jerome Corsi and LarryKlayman

filed the instant suit against Defendants Infowars, LLC, Free Speech Systems, LLC, Alex E. Jones,

David Jones, and Owen Shroyer, alleging claims for defamation, intentional infliction of emotional

distress, assault, and unfair competition in violation of the Lanham Act, 15 U.S.C. § 1125(a). Dkt.

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No. 1.1 The suit was originally filed in the District of Columbia and after a finding of improper

venue, was transferred to the Western District of Texas on March 20, 2020. Dkt. No. 22. On July

29, 2020, Plaintiffs filed their Amended Complaint, adding Roger Stone as a defendant. Dkt. No.

47. 

Plaintiff’s Amended Complaint describes Jerome Corsi as an “author and political

commentator,” and Larry Klayman as a “public interest legal advocate” and “media personality and

author, columnist and syndicated radio talk show host.” Dkt. No. 47 at ¶¶ 3-4. Defendant Alex

Jones is a “media personality” who owns the media outlet company InfoWars, LLC, and a related

entity Free Speech Systems, LLC. Id. at ¶¶ 7, 11. David Jones is Alex Jones’ father, and allegedly

a co-owner of InfoWars and Free Speech Systems, though Defendants deny this assertion. Id. at ¶

11; Dkt. No. 57 at 2, n. 1. Defendant Owen Shroyer is a newscaster for InfoWars, and a co-host of

a political news show along with Defendant Roger Stone, who is also a political commentator and

media personality. Dkt. No. 47 at ¶¶ 9-10, 13. 

The Plaintiffs’ case revolves around allegedly defamatory statements made by Stone and

Alex Jones in several InfoWars videos. Specifically, Plaintiffs point to InfoWars videos featuring

Stone, Alex Jones, and Shroyer from October 2018 and January 2019. Dkt. No. 47 at ¶¶ 41-69. 

They allege that during the shows, Alex Jones falsely stated that Corsi “seemed to be extremely

1 This case is one of several nearly identical suits filed by Corsi and Klayman against Stone

and various other defendants in several district courts. See Klayman v. Infowars, Case No.

20-cv-80614 (S.D. Fla. Apr. 8, 2020); Corsi v. Stone, Case No. 1:19-cv-00324; Corsi v. Caputo,

Case No. 1:19-cv-01573-TJK (D.D.C.). Plaintiffs have also filed similar suits in state courts. See

Corsi v. Stone, Case No. 50-2019-CA-013711-MB (15th Jud. Cir., Fla. 2019); Klayman v. Stone,

Case No. 50-2019-CA-015104-MB (15th Jud. Cir., Fla. 2019); Klayman v. Stone, Case No. CACE

19-002672 (17th Jud. Cir., Fla. 2019); Klayman v. Infowars, Stone, Case No. CACE-20-007120

(17th Jud. Cir., Fla. filed Apr. 28, 2020); Corsi v. InfoWars, LLC & Stone, CACE 20-004473 (17th

Jud. Cir., Fla. filed Mar. 11, 2020). 

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mentally degraded to the point of . . . dementia,” had a stroke, and does not tell the truth, and that

Stone falsely stated that Corsi was fired from a prior job, is an alcoholic, often lies, is willing to

perjure himself, and is a “deep state” operative and a “fraud” who seeks to make political

conservatives look bad. Id. at ¶¶ 42-45, 50-53, 55-56, 90. Plaintiffs further allege that in one of the

videos, Stone attacked Klayman’s reputation, stating that Klayman “could be the single worst lawyer

in America,” has “never actually won a courtroom victory in his life,” and is an “idiot” and an

“egomaniac.” Id. at ¶¶ 55, 59. 

In their Amended Complaint, Plaintiffs acknowledge that the sole speakers of the allegedly

defamatory statements at issue are Stone and Alex Jones. Dkt. No. 47 at ¶¶ 37-39. Nonetheless,

Plaintiffs contend that Stone has “used and continues to employ surrogates and agents, either out in

the open or secretly, to defame Plaintiffs,” alleging that the Defendants have “acted in concert” at

Stone’s direction to defame them. Id. at ¶¶ 31-32, 76. Plaintiffs further allege that they are

competitors to Defendants “as conservative media personalities, broadcasters, authors and

columnists on social media and elsewhere,” and that Defendants’ actions thus constitute unfair

competition in violation of the Lanham Act. Id. at ¶¶ 70-74, 104-109. Their Amended Complaint

also states causes of action for intentional infliction of emotional distress and assault, alleging that

Defendants threatened Plaintiffs, causing them severe emotional distress and has placed them “in

apprehension of an imminent harmful or offensive contact and physical harm and death, by coercing

and threatening Plaintiffs.” Id. at ¶¶ 93-103. In five separately filed motions to dismiss, Defendants

seek dismissal of Plaintiffs’ suit in its entirety. See Dkt. Nos. 55, 57, 58, 59, 70. 

II. LEGAL STANDARDS

Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject matter

jurisdiction as a defense to suit. FED.R.CIV.P. 12(b)(1). Federal district courts are courts of limited

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jurisdiction and may only exercise such jurisdiction as is expresslyconferred by the Constitution and

federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal

court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or

constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of Madison,

143 F.3d 1006, 1010 (5th Cir. 1998). In ruling on a Rule 12(b)(1) motion, the court may consider

any one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced

in the record; or (3) the complaint, undisputed facts, and the court's resolution of disputed facts. 

Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). “The burden of proof for a Rule 12(b)(1)

motion to dismiss is on the party asserting jurisdiction.” Ramming v. United States, 281 F.3d 158,

161 (5th Cir. 2001). “Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction

does in fact exist.” Id.

Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for

failure to state a claim on which relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss

for failure to state a claim, the court “accepts all well-pleaded facts as true, viewing them in the light

most favorable to the [nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th

Cir. 2007) (internal quotation marks omitted). The Supreme Court has explained that a complaint

must contain sufficient factual matter “to state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the [nonmovant] pleads factual content that allows

the court to draw the reasonable inference that the [movant] is liable for the misconduct alleged.” 

Ashcroft, 556 U.S. at 678. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations and

citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative

level.” Id. “The court’s review is limited to the complaint, any documents attached to the complaint,

and any documents attached to the motion to dismiss that are central to the claim and referenced by

the complaint.” Ironshore Europe DAC v. Schiff Hardin, L.L.P., 912 F.3d 759, 763 (5th Cir. 2019)

(quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)). 

“A statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from the

plaintiff’s pleadings that the action is barred and the pleadings fail to raise some basis for tolling or

the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).

III. ANALYSIS

A. Lanham Act Claims

The Lanham (Trademark) Act, 15 U.S.C. § 1051 et seq., prohibits deceptive trade practices

such as false advertising and trademark infringement. Section 1125 provides for civil liability in the

case of:

any person who on or in connection with any goods or services, ... uses in commerce

any word, term, name, symbol, or device, or any combination thereof, or any ... false

or misleading description of fact, or false or misleading representation of fact,

which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the

affiliation, connection, or association of such person with another person, or as to the

... sponsorship, or approval of his or her goods, services, or commercial activities by

another person, or

(B) in commercial advertising or promotion,misrepresentsthe nature, characteristics,

qualities, or geographic origin of his or another person’s goods, services, or

commercial activities[.]

15 U.S.C. § 1125(a)(1)(A) & (B). 

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Plaintiffs argue that because Defendants are their competitors “as conservative media

personalities, broadcasters, authors and columnists on social media and elsewhere,” thatDefendants’

allegedly defamatory and misleading statements during the InfoWars videos thus constitute unfair

competition in violation of the Act. Dkt. No. 47 at ¶¶ 104-109. Defendants argue that Plaintiffs

have failed to establish their standing under the Lanham Act. Dkt. No. 55 at 7; Dkt. No. 57 at 16;

Dkt. No. 70 at 4-9. 

To establish standing under the Lanham Act, “the Plaintiff’s injuries must fall within the

‘zone of interests’ the statute was intended to protect.” Lexmark Int’l v. Static Control Comps., 572

U.S. 118, 130 (2014). In Lexmark Int’l, the Supreme Court explained that a “plaintiff suing under

§ 1125(a) ordinarily must show economic or reputational injury flowing directly from the deception

wrought by the defendant’s advertising; and that occurs when deception of consumers causes them

to withhold trade from the plaintiff.” Id. In other words, to proceed with their Lanham Act claim,

Plaintiffs must plead an injury to some commercial interest in sales or business reputation that was

proximately caused by the Defendants’ misrepresentations. 

Plaintiffs have not met their burden to establish standing under the Lanham Act. Specifically,

Plaintiffs fail to show that their alleged injuries fall within the zone of interests of the Act. Here,

the Plaintiffs allege that they compete with Defendants as media personalities who derive income

from the internet and radio. Dkt. No. 47 at ¶ 74. According to Plaintiffs, the Defendants’ allegedly

defamatory remarks were made to harm their reputations and eliminate them as competition for

potential listeners or donors. Dkt. No. 79 at 6. However,“[t]he mere fact that the parties may

compete in the marketplace of ideas is not sufficient to invoke the Lanham Act.” Farah v. Esquire

Magazine, 736 F.3d 528, 541 (D.C. Cir. 2013). 

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It is well established that Section 1125(a) applies only to commercial speech, which is not at

issue here. Alliance for Good Government v. Coalition for Better Government, 901 F.3d 498, 506

n.8 (5th Cir. 2018) (noting Section 1125(a) applies onlyto “commercial advertising and promotion”);

Nichols v. Club for Growth Action, 235 F. Supp. 3d 289, 295 (D.D.C. 2017) (“The Lanham Act only

restricts commercial speech, or speech connected with a good or service.”). The allegedly defamatory

comments made by Defendants during the InfoWars video are not commercial speech or

advertisements, but rather expressions of opinions as commentary during a radio show. See Farah,

736 F.3d at 541. The complained of conduct at issue does not fall within the zone of interest that the

Lanham Act was intended to protect. Seven-Up Co. v. Coca-Cola Co., 86 F.3d1379, 1383 n. 6 (5th

Cir. 1996). Because Plaintiffs do not have standing under the Lanham Act,2the claims under that

statute should be dismissed with prejudice. 

B. Defamation Claims

Plaintiffs’ Amended Complaint alleges claims for defamation, defamation per se, and

defamation by implication against each of the Defendants. Dkt. No. 47 at ¶¶ 75-92. Under Texas

law, a plaintiff seeking to state a defamation claim must plead the following elements: (1) publication

of a false statement of fact to a third party, (2) the statement must concern the plaintiff and be

defamatory, (3) the publication must be made with the requisite degree of fault, and (4) the

publication must cause damages. In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015). A statement is

2 Notably, in April 2020, Plaintiff Klayman filed a nearly identical suit filed in the Southern

District of Florida. See Klayman v. Infowars, Case No. 20-cv-80614 (S.D. Fla. Apr. 13, 2020). 

There, sua sponte the district judge issued an order requiring a more definite statement, directing

Klayman that if he were to replead his Lanham Act unfair competition claim, he needed to show that

he had standing to do so. Id. Rather than replead, Klayman voluntarily dismissed that action, Dkt.

Nos. 34-3, and instead has pursued the claim here, without alleging any additional facts to address

the standing deficiencies the Florida court noted. 

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defamatory “if it tends to injure a person’s reputation and thereby expose the person to public hatred,

contempt, ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or

reputation.” Lipsky, 460 S.W.3d at 593. Damages must be shown unless the statements are

defamatory per se, meaning that the statements are so clearly harmful that general damages may be

presumed. Id.

When a defamation suit is brought against a media defendant over a matter of public concern,

the plaintiff bears the burden of proving falsity. Klentzman v. Brady, 312 S.W.3d 886, 898 (Tex. App.

– Houston [1st Dist.] 2009). Texas Courts employ the “substantial truth doctrine” to determine the

truth or falsity of a broadcast or publication: “if a broadcast taken as a whole is more damaging to the

plaintiff’s reputation than a truthful broadcast would have been, the broadcast is not substantially true

and is actionable.” Neely v. Wilson, 418 S.W.3d 52, 63 (Tex. 2013). 

Claims of defamation by implication cover both “gist” and implication. Dallas Morning

News, Inc. v. Tatum, 2018 WL 2182625, at *8 (Tex. 2018). To determine defamation by implication,

the court must “determine whether the implication the plaintiff alleges is among the implications that

the objectively reasonable reader would draw.” Id. at *9. The court must “not place ‘overwhelming

emphasis on a[ny] single term’ or ‘focus on individual statements’ to the exclusion of the entire

publication.” Id. at *10. It must “consider[ ] inferential meaning carefully, but not exhaustively.” Id.

Further, in order to curtail a chilling effect on freedom of speech, the plaintiff “must point to

‘additional, affirmative evidence’ within the publication itself that suggests the defendant ‘intends

or endorses the defamatory inference.’” Id.

1. Owen Shroyer

Defendant Shroyer’s motion to dismiss asserts that Plaintiffs have not pled sufficient facts to

maintain a defamation claim against him. Dkt. No. 55. The Court agrees. Plaintiffs’ Amended

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Complaint contains no allegations that Shroyer himself engaged in defamatory conduct, but instead

seeks to hold Shroyer liable for the alleged defamatory conduct of other defendants by arguing

Shroyer was acting “in concert” with them. Dkt. No. 47 at ¶¶ 8, 76, 81, 87. Plaintiffs provide no

facts in support of their conclusory allegations of conspiracy to defame with other defendants or that

Shroyer “ratified” the allegedly defamatory statements complained of by Plaintiffs. Rather, the only

facts alleged against Shroyer in the Amended Complaint are that he appeared in InfoWars videos with

his co-host Stone when Stone made the allegedly defamatory comments about Corsi and Klayman. 

Dkt. No. 47 at ¶¶ 49-54, 59-62. Plaintiffs’ attempt to equate Shroyer’s presence in these videos with

a conspiracy to defame is entirely conclusory and insufficient to support their claims. Walker v.

Beaumont Ind. School Dist., 938 F.3d 724, 734 (5th Cir. 2019); Hourani v. Mirtchev, 796 F.3d 1, 16

(D.C. Cir. 2015); King v. Jarrett, 2016 WL 11581949, at *6 (W.D. Tex. June 17, 2016). Given the

lack of any factual allegations supporting Plaintiffs’ assertion that Shroyer conspired with other

defendants to defame Corsi or Klayman, Plaintiffs have failed to state a defamation claim against him.

2. David Jones

The defamation claims against David Jones fail for the same reason. Plaintiffs’ Amended

Complaint does not make any specific allegations of defamatory conduct by David Jones. As with

Shroyer, Plaintiffs attempt to hold David Jones liable for alleged defamatory remarks made by other

defendants by asserting that David Jones was “acting in concert” with the other defendants. Dkt. No.

47 at ¶¶ 8, 76, 81, 87. The Amended Complaint’s only factual allegations regarding David Jones are

that he is the father of Defendant Alex Jones, that he is the alleged co-owner of Defendant entities

InfoWars and Free Speech Systems,

3

and that he allegedly held the position of Director of Human

3

In his motion to dismiss, David Jones denies the allegation that he is an owner of either

InfoWars or Free Speech Systems. Dkt. No. 57 at 5. 

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Relations for Free Speech Systems. Id. at ¶ 8. Based on these assertions alone, Plaintiffs contend that

David Jones “worked in concert with and as an agent for the other Defendants,” “participated in and

ratified the illegal acts set forth in this Complaint,” and “profited ... from the tortious acts of the other

Defendants.” Id. These assertions are wholly conclusory and unsupported by facts, and thus

insufficient to survive a Rule 12(b)(6) motion. Hershey v. Energy Transfer Partners, 610 F.3d 239,

245-46 (5th Cir. 2010); Walker, 938 F.3d at 734. 

To the extent Plaintiffs attempt to hold David Jones liable for any alleged defamatory actions

of other defendants as an alleged owner of the limited liability companies InfoWars and Free Speech

Systems, this argument also fails. Under Texas law, owners of limited liability companies are not

liable for the torts of the entity, unless the plaintiff can allege some basis for piercing the corporate

veil. See Hong v. Havey, 551 S.W.3d 875, 885 (Tex. App.—Houston [14th Dist.] 2018, no pet.);

Bates Energy Oil & Gas v. Complete Oildfield Svcs., 361 F.Supp. 3d 633, 665 (W.D. Tex. 2019). 

Here, Plaintiffs include no allegations that indicate an intention to proceed against David Jones as an

owner on an alter-ego theory of liability. Given the lack of any allegations that David Jones

personally engaged in defamatory conduct, or allegations supporting a basis to pierce the corporate

veil or to hold David Jones liable on a theory of conspiracy, Plaintiffs’ defamation claims against

David Jones should be dismissed without prejudice. 

3. Alex Jones, InfoWars, and Free Speech Systems

Defendants Alex Jones, InfoWars, and Free Speech Systems (“Moving Defendants”) jointly

move to dismiss the claims filed byCorsi (Dkt. No. 58) and Klayman (Dkt No. 59), arguing that their

defamation claims fail to allege facts sufficient to state a claim against them. Dkt. Nos. 58, 59.

Klayman does not allege Alex Jones himself made any defamatory remarks about Klayman.

Nevertheless, as with Shroyer and David Jones, he seeks to hold Alex Jones and the Moving

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Defendants liable for Stone’s allegedly defamatory remarks about Klayman, based on a conspiracy

theory. Dkt. No. 47 at ¶¶ 8, 76, 81, 87. The Moving Defendants assert that these claims fail because

Plaintiffs fail to connect the Moving Defendants to the remarks. Dkt. No. 59 at 15-16. For the

reasons discussed above with regard to Shroyer and David Jones, the Court agrees. Plaintiffs fail to

allege any facts that give credence to any of the Defendants acting “in concert” such that the Moving

Defendants could be held liable for any alleged defamatory remarks of other defendants. 

Accordingly, the undersigned recommends these claims be dismissed.

Plaintiffs’ Amended Complaint does, however, contain allegations that Alex Jones himself

made several defamatorystatements about Corsi during the October 2018 and January2019 InfoWars

videos. Dkt. No. 47 at 41-44. The statements Corsi alleges Jones made are these:

• “[W]hen I was in DC about six months ago with dr. [sic] Corsi he seemed to mentally

be extremely degraded to the point of what I would call dementia.” Dkt. 47 ¶ 42.

• “[Corsi]’s on the ground at another table we had to help him out of there man they

thought he was dead in the elevator.” Id. ¶ 43.

• “[Corsi] had a stroke or whatever’s going on with Corsi that whatever comes out of

his mouth ain’t the truth.” Id. ¶ 44

• Corsi is a “spook, back and forth with different agencies.” Id. ¶ 67

The Moving Defendants assert that none of these remarks are actionable because they are all

expressions of opinion, rhetorical hyperbole, or substantially true statements. Dkt. No. 58 at 15-17. 

They argue that none of the remarks are actionable defamation because they are the type of

imaginative expression, rhetorical hyperbole, and opinion statements that “cannot reasonably be

interpreted as stating actual facts about an individual.” Milkovich v. Lorain Journal Co., 491 U.S.

1, 2 (1990). 

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Defendants allege that Jones’ statement that “when I was in DC about six months ago with

dr. [sic] Corsi he seemed to mentally be extremely degraded to the point of what I would call

dementia,” is a statement of Alex Jones’ opinion, and is thus not actionable as defamation. Dkt. No.

58 at 15-16. The Court agrees. Jones in this statement is offering his opinion regarding how he

perceived Corsi’s cognitive state based on seeing him in person. This is not a fact statement, but

rather a statement of opinion and is thus not actionable. The same is the case with the related

statement that “[Corsi]’s on the ground at another table we had to help him out of there man they

thought he was dead in the elevator.” Corsi does not contend that Jones did not see him on the floor,

nor does he challenge that others were concerned about his medical state. Again, this is a statement

of what Jones perceived. Further, Corsi fails to demonstrate how the statement has a defamatory

meaning. 

With regard to the statement that “[Corsi] had a stroke or whatever’s going on with Corsi that

whatever comes out of his mouth ain’t the truth,”(Dkt. No. 47 ¶ 44), the motion asserts the statement

was rhetorical hyperbole, and cannot be the basis of a defamation action. Dkt. No. 58 at 16. They

contend that, reviewed in context, “a person of ordinary intelligence would perceive these words as

nothing more than rhetorical hyperbole.” Id. (citing Rehak Creative Servs. v. Witt, 404 S.W.3d 716,

729 (Tex. App. 2013)). The Court agrees that the second half of this statement, that “whatever’s

going on with Corsi that whatever comes out of his mouth ain’t the truth,” would be considered by

the ordinary person, particularly in the context of an InfoWars video, to be rhetorical hyperbole. The

statement that “[Corsi] had a stroke,” however, is a straightforward factual statement, which, if false

could support a defamation claim. Jones concedes this, noting that, “in isolation, these might sound

like false statements of fact.” Dkt. 80 at 5. He notes, however, that when read in the full context of

Jones’ commentary, the statement is not defamatory, and instead is a statement of Jones’ speculation

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on Corsi’s medical state. This context includes Jones’ earlier statement that “Ithink he’s got dementia

or a stroke I mean I don’t know,” and his description of Corsi having “a really sharp brain until about

a year ago.” See Dkt. No. 7-2. Jones contends that in this context, the statement is Jones’ view that

Corsi was prone to error based on Jones’ observations of Corsi’s health. Though this is a closer call

than the other statements, the Court agrees. 

With regard to Jones’ statement calling Corsi a “spook, back and forth with different

agencies,” (Dkt. No. 47 at ¶ 67), Jones contends the statement is not defamatory, but rather “most

reasonable people would find such facts to be flattering.” Dkt. No. 58 at 17. Indeed, a “spook” is a

colloquial term for a person employed in the intelligence community,

4

and is generally not taken as

a derogatory term. It is akin to referring to a police officer as a “cop.” Further, Corsi’s own affidavit

establishes that the statement is literally true, in that Corsi worked with several intelligence agencies

and had a top secret security clearance. Dkt. 74 at 24-26; ¶¶ 7, 15. To the extent Corsi contends that

the implication of the statement was that he had assisted the Mueller investigation in an attempt to

harm Roger Stone and Donald Trump, that implication is not apparent from anything alleged in the

Amended Complaint, and Corsi fails to demonstrate how, even assuming the implication was made,

the statement is defamatory.

In addition to the above arguments, the Moving Defendants also argue that the defamation

claims fail because Plaintiffs have failed to allege any facts establishing the Defendants made these

statements with actual malice. Because Corsi and Klayman’s own pleadings demonstrate they are

public figures, the Moving Defendants contend Corsi and Klayman must meet a heightened pleading

standard requiring that they allege facts showing the Defendants made the defamatory remarks with

4The Merriam Webster Dictionary defines “spook” as “an undercover agent: SPY.” See

https://www.merriam-webster.com/dictionary/spook (visited 5/24/21).

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actual malice. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974) (holding that private

individuals become public figures when they have “thrust themselves to the forefront of particular

public controversies in order to influence the resolution of the issues involved.”). The Moving

Defendants’ contend Corsi’s and Klayman’s defamation claims fail because they make no plausible

allegations that Defendants acted with actual malice. Dkt. No. 58 at 18. The Court agrees. Actual

malice is a high burden. See Peter Scalamandre &Sons, Inc. v. Kaufman, 113 F.3d 556, 561 (5th Cir.

1997). A public figure suing for defamation must show the defendant knowingly made false

statements, or made false statements with reckless disregard for the truth. Id. In this regard, the

Amended Complaint is lacking. There are no allegations that lead to a reasonable inference that the

Defendants acted with malice or a reckless disregard for the truth with regard to the remarks above. 

This is an alternative reason that dismissal is appropriate on these claims. 

Corsi has failed to adequatelyallege that Alex Jones knowinglymade false statements or acted

with reckless disregard for the truth in making the complained of statements about Corsi, and has

failed to adequately plead that Jones acted with malice in making the statements. As a result he has

failed to state a claim against Jones or the Moving Defendants. 

4. Roger Stone

Lastly, Defendant Stone asserts that the defamation claims against him should be dismissed

because they are time-barred. Dkt. No. 70 at 11-13. Under Texas law, defamation claims generally

are subject to a one-year statute of limitations. TEX. CIV. PRAC. & REM. CODE, § § 16.002(a),

16.003(a); Jackson v. W. Telemarketing Corp., 245 F. 3d 518, 523 (5th Cir. 2001); Hamad v. Center

for Jewish Cmty. Studies, 265 F. App’x 414, 417 (5th Cir. 2008). To determine whether a defamation

claim is timely, courts in Texas have adopted the “single publication rule.” Forbes Inc. v. Granada

Biosciences, Inc., 124 S.W.3d 167, 173 (Tex. 2003). Under the single publication rule, defamation

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claims must be brought within one year from the first date of publication, whether that be traditional

print publication or publication on the internet. Id.; Glassdoor, Inc. v. Andra Group, LP, 575 S.W.3d

523, 529 (Tex. 2019). 

Here, the allegedly defamatory statements on which the Plaintiffs’ claims are premised were

published when the InfoWars videos were made available online in October 2018 and January 2019,

respectively. Dkt. No. 47 at ¶¶ 41-69. Corsi and Klayman sued Shroyer, Alex Jones, David Jones,

InfoWars, and Free Speech Systems on March 7, 2019, are thus the claims against these defendants

are timely under the statute of limitations. See Dkt. No. 1. However, Stone was not added as a

defendant until the filing of the Amended Complaint on July 29, 2020. Dkt. No. 47. Because the

claims against Stone were filed after the one year statute of limitations expired, the claims are timebarred. See, e.g. Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (“A statute of limitations may

support dismissal under Rule 12(b)(6) where it is evident from the plaintiff’s pleadings that the action

is barred and the pleadings fail to raise some basis for tolling or the like.”). Accordingly, the

Plaintiffs’ defamation claims against Stone should be dismissed with prejudice. 

C. Intentional Infliction of Emotional Distress Claims

Next, Plaintiffs assert common law claims of intentional infliction of emotional distress

(“IIED”). To recover for IIED under Texas law, “a plaintiff must prove that 1) the defendant acted

intentionally or recklessly, 2) the conduct was ‘extreme and outrageous,’ 3) the actions of the

defendant caused the plaintiff emotional distress, and 4) the resulting emotional distress was severe.”

Standard Fruit & Veg. Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998). Plaintiffs assert IIED claims

against each Defendant for “knowingly and intentionally threatening Plaintiffs, in a manner similar

to other death threats co-conspirator and Defendant Stone made to at least one material witness,

involved in Special Counsel Mueller’s Russian collusion investigation ... as well as Judge Amy

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Berman Jackson.” Dkt. No. 47 at ¶ 95. The Amended Complaint otherwise fails to allege facts to

support any of the elements of their IIED claims, and further, includes no specific allegations as to

any defendant except for Stone. Id. 

In addition to this lack of factual allegations necessary support the claim, IIED is a “gap-filler

tort” designed to “supplement existing forms of recoveryby providing a cause of action for egregious

conduct ‘that its more established neighbors in tort doctrine would technically fence out.’” Standard

Fruit, 985 S.W.2d at 65. Thus, “[w]here the gravamen of a plaintiff’s complaint is really another tort,

intentional infliction of emotional distress should not be available.” Hoffmann-La Roche, Inc. v.

Zeltwanger, 144 S.W.3d 438, 447-48 (Tex. 2004). Here, the “gravamen” of Plaintiffs’ IIED claim

is defamation. Their IIED claim is“merely incidental to the commission of some other tort,” and thus

should be dismissed. Standard Fruit, 985 S.W.2d at 68.

D. Assault Claims

Plaintiffs also assert common law claims of assault against all Defendants. Texas law defines

assault as “threaten[ing] another with imminent bodily injury.” Texas Penal Code § 22.01(a).5 The

Amended Complaint vaguely alleges that “Defendants placed Plaintiffs in apprehension of an

imminent harmful or offensive contact and physical harm and death. . .” Dkt. No. 47 at ¶ 98. It

further alleges, without any factual support, that Defendants call their followers “to arms” against

unspecified victims. Id. at ¶¶ 99-100. With the exception of a vague comparison of Defendant Stone

to the “Mafia,” the Complaint provides no specific allegations that the Defendants threatened Corsi

or Klayman with imminent bodily injury. Id. at ¶¶ 99-100. Plaintiffs’ assault claims thus fail to

survive Defendants’ Rule 12(b)(6) motions and should be dismissed. 

5 Under Texas law, the elements for assault are the same in the civil and criminal context. 

Sanders v. Schulze, 2015 WL 5547630, at *9 (N.D. Tex. Aug. 31, 2015).

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E. Leave to Amend

Generally, a court should not dismiss an action for failure to state a claim under Rule 12(b)(6)

without giving plaintiff “at least one chance to amend.” Hernandez v. Ikon Ofc. Solutions, Inc., 306

Fed. Appx. 180, 182 (5th Cir. 2009). “Although leave to amend under Rule 15(a) is to be freely given,

that generous standard is tempered by the necessary power of a district court to manage a case.”

Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 177 (5th Cir. 2016) (quoting United States

ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 387 (5th Cir. 2003)). The Fifth

Circuit has previously stated that “[a] bare request in an opposition to a motion to dismiss—without

any indication of the particular grounds on which the amendment is sought—does not constitute a

motion [within] the contemplation of Rule 15(a).” Id. (quoting Confederate Mem'l Ass'n, Inc. v.

Hines, 995 F.2d 295, 299 (D.C. Cir. 1993)). As noted earlier, this is one of several lawsuits Corsi and

Klayman have filed raising these very same claims. Moreover, they have already amended their

complaint in this case once. Further, a nearly identical version of this suit was filed in the Southern

District of Florida, and the judge there issued an order that pointed out many of the same problems

that are addressed above, and ordered Corsi and Klayman to file a more definite statement to address

the problems. Instead of doing so, they chose to withdraw that suit and file this one. Thus, if they

had more facts to plead to cure the identified problems, they have certainly already had the

opportunity to do so. For these reasons, the undersigned recommends that the Court not permit Corsi

or Klayman leave to amend, and dismiss the claims with prejudice.

IV. MOTIONS FOR SANCTIONS

In addition to the motions to dismiss, Defendants Shroyer and Stone have both filed motions

seeking sanctions against Corsi and Klayman under Rule 11. Dkt. Nos. 56, 84. Should the district

judge adopt the recommendations made herein, it is possible that sanctions could be appropriate as

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the defendants who made no challenged statements, and as to Stone, given that the statute of

limitations had run on the claim against him when the suit was filed. It would, however, be premature

for the Court to address that issue before the district judge has acted on this Report and

Recommendation. Accordingly, the undersigned ORDERS that Defendants Shroyer and Stone’s

Motions for Sanctions (Dkt. Nos. 56 & 84) be DENIED WITHOUT PREJUDICE to being refiled

once the district judge acts on this Report and Recommendation. 

V. RECOMMENDATIONS 

For the reasons set forth above, the undersigned RECOMMENDS that the Court GRANT

the Defendants’ motions to dismiss (Dkt. Nos. 55, 57, 58, 59, 70), and DISMISS the Plaintiffs’

claims WITH PREJUDICE, for failure to state a claim, and DENY Defendants Shroyer and

Stone’s Motions for Sanctions (Dkt. Nos. 56 & 84) WITHOUT PREJUDICE to being refiled once

the district judge acts on this Report and Recommendation. 

VI. WARNINGS

The parties may file objections to this Report and Recommendation. A partyfiling objections

must specifically identify those findings or recommendations to which objections are being made. 

The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United

States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written objections

to the proposed findings and recommendations contained in this Report within fourteen (14) days

after the party is served with a copy of the Report shall bar that party from de novo review by the

District Court of the proposed findings and recommendations in the Report and, except upon grounds

of plain error, shall bar the partyfrom appellate review of unobjected-to proposed factual findings and

legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474

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U.S. 140, 150-53, 106 S. Ct. 466, 472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d

1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED this 24th day of May, 2021.

_____________________________________

ANDREW W. AUSTIN

UNITED STATES MAGISTRATE JUDGE

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