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Owen Shroyer Motion to Dismiss and for Attorneys’ Fees and Costs Under Fla. Stat. § 768.295

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Bradley J. Reeves (TX Bar No. 24068266)

REEVES LAW, PLLC

702 Rio Grande Street, Suite 306

Austin, TX 78701

Telephone: 512-827-2246

brad@brtx.law

Marc J. Randazza (pro hac vice)

RANDAZZA LEGAL GROUP, PLLC

2764 Lake Sahara Drive, Suite 109

Las Vegas, NV 89117

Telephone: 702-420-2001

ecf@randazza.com

Jay M. Wolman (pro hac vice)

RANDAZZA LEGAL GROUP, PLLC

100 Pearl Street, 14th Floor

Hartford, CT 06103

Telephone: 702-420-2001

jmw@randazza.com

Counsel for Defendants,

Infowars, LLC; Free Speech Systems, LLC;

Alex E. Jones; and Owen Shroyer

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS, AUSTIN DIVISION

DR. JEROME CORSI and LARRY 

KLAYMAN,

Plaintiffs,

vs.

INFOWARS, LLC, FREE SPEECH 

SYSTEMS, LLC, ALEX E. JONES, DAVID 

JONES, and OWEN SHROYER,

Defendants.

Civil Action No. 1:20-cv-00298-LY

DEFENDANT OWEN SHROYER’S 

MOTION TO DISMISS FOR FAILURE 

TO STATE A CLAIM AND FOR 

ATTORNEYS’ FEES AND COSTS 

UNDER FLA. STAT. § 768.295

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Defendant Owen Shroyer brings this Motion to Dismiss for Failure to State a Claim under 

Fed. R. Civ. P. 12(b)(6) and requests an award of costs and attorneys’ fees against Plaintiff Larry 

Klayman under Fla. Stat. § 768.295.1

1.0 Introduction

This is one of a number of nearly identical cases brought by Larry Klayman in a vexatious 

tantrum of a campaign against Roger Stone. In his quest to punish Stone for some perceived slight, 

Klayman has sued anyone who stood near Roger Stone. This is all that Mr. Shroyer is alleged to have 

done. 2 It is worth noting that a virtually identical complaint was filed in the Southern District of 

Florida – which the judge struck sua sponte because it was such an unsupportable claim. See Dkt. No. 

34-2. Klayman then filed a nearly identical claim in state court in Florida.3 See Exhibit 1 Klayman

seems to be desperately filing duplicative cases, again and again, since the judiciary has failed to put an 

end to his abuse of the judicial system. Today is the day.

None of the speech at issue constitutes actionable defamation, nor may it be repurposed to fit 

any other tort theory, including intentional infliction of emotional distress and assault. The speech is 

not commercial speech under the Lanham Act and neither is it unfair competition. Plaintiffs’ claims 

are especially frivolous as to Mr. Shroyer, as he did not utter a single tortious or unlawful word, and 

Plaintiffs fail to allege he is liable for any statement. Further, given how unsupportable the Lanham 

Act claim is, this case should be deemed an “exceptional case” with fees awarded to the defendants. 

Plaintiffs unreasonably multiplied the proceedings, filing an Amended Complaint to add Roger Stone 

as a defendant, more than a year after the original motion to dismiss was fully briefed. See Dkt. Nos. 

1 Florida’s Anti-SLAPP statute does not apply to claims brought under federal law, and so 

Defendants do not seek an award of costs and attorneys’ fees under this law as to Mr. Klayman’s 

Lanham Act claim. 2 At least, officially, in this matter. Mr. Klayman continues to represent Dr. Corsi in other 

matters, such as in Corsi v. Stone, et al., Case No. 50-2019-CA013711 (15th Jud. Cir., Fla., filed Oct. 23, 

2019). However, interactions with Corsi’s counsel have shown that it is still Klayman calling the shots 

and managing the litigation, despite this court’s order to the contrary. 

3 “[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public 

record.” Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007).

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7 & 10-12.5 Mr. Klayman should also be required to pay Mr. Shroyer’s costs and attorneys’ fees 

incurred in defending themselves from his frivolous claims under Fla. Stat. § 768.295, as he is a Florida 

resident and this suit is exactly the kind of litigation sought to be prevented by Florida’s Anti-SLAPP 

law. Even if the Court declines to apply the Anti-SLAPP law, fees should be awarded under the 

Lanham Act, 28 U.S.C. § 1927, the Court’s inherent power, and/or Fed R. Civ. P. 11.6 Further, 

Klayman and Corsi both should be considered to be vexatious litigants, and the citizens of this District 

should be protected from their abusive and frivolous litigation in the future.

2.0 Factual Background

Plaintiffs allege that Defendants8 committed defamation, intentional infliction of emotional 

distress, unfair competition, and even assault. Facts alleged against Mr. Shroyer are:

9

5 On July 30, 2020, the Court dismissed the motion without prejudice in light of the filing of 

the Amended Complaint. Dkt. No. 48. Although the Scheduling Order (Dkt. No. 46) set a deadline 

of Nov. 1, 2020 to file amended pleadings, Plaintiffs failed to seek leave of court as required by Fed. 

R. Civ. P. 15(a)(2). See Pub. Health Equip. & Supply Co. v. Clarke Mosquito Control Prods., 410 F. App'x 

738, 740 (5th Cir. 2010) (pre-deadline motions are governed by Rule 15(a)(2). Factors to consider in 

deciding whether to permit amendment include “undue delay, bad faith or dilatory motive on the part 

of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the opposing party, and futility of amendment.” Wimm v. Jack Eckerd Corp., 3 F.3d 137, 

139 (5th Cir. 1993). There was no need to amend the complaint to add Stone to this action—both 

Corsi and Klayman already had pending actions against Stone for the very statements at issue here. 

See Corsi v. Stone, Case No. CACE-20-004473 (17th Jud. Cir., Fla., filed Mar. 11, 2020) and Klayman v. 

Stone, Case No. 19-002672 CACE (17th Jud. Cir., Fla, Amd. Compl. Filed Aug. 29, 2019). Notably, 

Mr. Stone is likely not susceptible to personal jurisdiction in Texas for statements made by him in 

Florida just as he was not susceptible to jurisdiction in D.C. See Corsi v. Stone, 2020 U.S. Dist. LEXIS 

34852, *7 (D. D.C. Mar. 1, 2020) and Corsi v. Caputo, 2020 U.S. Dist. LEXIS 60958 (D. D.C. Apr. 7, 

2020). Both undue delay and futility of amendment, as the Amended Complaint does not survive 

Rule 12(b)(6) analysis, should have precluded the filing of the Amended Complaint. To the extent 

applicable, Mr. Shroyer requests the Court strike the improper amendment under Rule 12(f) and 

Rule 15. 

6 A Rule 11 motion on behalf of Mr. Shroyer is being filed contemporaneously. 8 Plaintiffs also claim that Defendants worked in concert with non-party Roger Stone in 

violation of 18 U.S.C. § 1512. See Amd. Complaint at ¶ 36. No actual cause of action is asserted; 

moreover, this statute does not confer a private right of action. See Merkle v. Gragg, No. SA-19-CV00640-XR, 2019 U.S. Dist. LEXIS 204920, at *42 (W.D. Tex. Nov. 26, 2019). To the extent Plaintiffs 

rest on allegations made in other litigation (Dkt. No. 47 at ¶ 36), no actual allegations regarding the 

claims at issue were presented in those matters. 

9 Plaintiffs make practically no allegations against co-Defendant David Jones. Allegations as to 

co-Defendant Roger Stone are not addressed here except as they relate to claims against Mr. Shroyer.

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a) January 18, 2019 Video: Appeared on video at the same time as Roger Stone, 

where Mr. Stone allegedly said Dr. Corsi was “fired from World Net Daily”; that Dr. Corsi 

perjured himself; that Dr. Corsi had a “feeble alcohol affected memory”; that Dr. Corsi “was 

perfectly prepared to bear false witness”; that Dr. Corsi made up a story; and that Dr. Corsi is 

“lying because his lips are moving.” Dkt. No. 47 at ¶¶ 49-54.

b) January 18, 2019 Video: Appeared on video at the same time as Roger Stone, 

where Mr. Stone allegedly said that Mr. Klayman “never actually won a courtroom victory”; that 

Mr. Klayman was “ousted” from employment due to sexual misconduct; and that Klayman is a 

“piece of garbage”, “incompetent”, “a numbskull”, “an idiot”, “an egomaniac” and “could be the 

single worst lawyer in America” whose IQ is not “higher than 70”. Id. at ¶¶ 55-56, 59, 61-62.

That’s it. Mr. Shroyer is here because he appeared in the same video as someone who said something

that is not defamatory. The novel theory of “defamation by proximity” has never existed in American 

law, and the mere fact that we are on our multiples iteration of this ludicrous claim, which Klayman 

has brought in multiple other court as well, is a travesty and shows that neither this, nor the other 

trove of cases filed by Mr. Klayman against his perceived enemies, have minimal merit. 

Mr. Shroyer is not accused of doing anything more than happening to be in the same frame

as Stone when Stone made these statements, which themselves do not appear to be capable of a 

defamatory meaning, or are provably true. Mr. Shroyer separately served a Rule 11 motion upon Dr. 

Corsi relative to the claims made against him.

No other pertinent factual allegations are asserted.

10 Plaintiffs otherwise make a series of 

conclusory allegations as to their purported competition with Defendants. Id. at ¶¶ 63 & 70-74.

10 Plaintiffs include significant unrelated matter, turning their Complaint into a “free for all.” See

USA v. Stone, Case No. 1:19-cr-00018 (D.D.C. Feb. 28, 2019) (striking filing from Mr. Klayman on 

behalf of Dr. Corsi and admonishing them upon the filing of improper matter).

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3.0 Legal Standard

3.1 Failure to State a Claim – Fed. R. Civ. P. 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual 

matter, accepted as true, 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 facially 

plausible claim requires “factual content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” Iqbal, 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 elements of a cause of action will not do.” Twombly, 550 

U.S. at 555. No one can even see the glow of distant lights of plausibility from this case. 

3.2 Florida Anti-SLAPP Statute: Fla. Stat. § 768.295

Florida’s Anti-SLAPP statute applies here, because a SLAPP plaintiff cannot outrun his home 

state’s Anti-SLAPP law by forum shopping in a state that does not have one.11 See Tobinick v. Novella, 

108 F. Supp. 3d 1299, 1304 (S.D. Fla. 2015) (California plaintiff subject to California anti-slapp law) 

aff’d 848 F.3d 935 (11th Cir. 2017); Adelson v. Harris, 774 F.3d 803 (2d Cir. 2014). The statute provides 

that “[a] person ... in this state may not file or cause to be filed ... any lawsuit ... against another 

person or entity without merit and primarily because such person or entity has exercised the 

constitutional right of free speech in connection with a public issue ....” Fla. Stat. § 768.295(3). 

A person sued in violation of the statute “has a right to an expeditious resolution of” the claims, 

allowing them to “move the court for an order dismissing the action” and “file a motion for summary 

11 Indeed, Texas has one, but it does not apply in Federal Court. That said, all Anti-SLAPP laws 

are not equal, and courts have shown that the imperfections in Texas’s law do not exist in other state’s 

laws. See, e.g., La Liberte v. Reid, 966 F.3d 79 n.3 (2d Cir. 2020) (distinguishing Nevada statute) and

Bongino v. The Daily Beast Company, LLC, No. 2:19-cv-14472-JEM, Doc. No. 23 (S. D. Fla. Aug. 6, 2020) 

(distinguishing Florida statute).

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judgment12 ... seeking a determination that the claimant’s ... lawsuit has been brought in violation of 

this section.” Fla. Stat. § 768.295(4). The prevailing party on a motion brought under this statute is 

entitled to a mandatory award of “reasonable attorney fees and costs incurred in connection with a 

claim that an action was filed in violation of this section.” Id. The term “free speech in connection 

with public issues” is defined as “any written or oral statement that is protected under applicable law 

and is made ... in connection with a ... radio broadcast, ... news report, or other similar work.” Id. 

at § 768.295(2)(a). 

As discussed in more detail below, the Florida anti-SLAPP statute applies to Mr. Klayman in 

federal court. Unlike the Texas Citizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code 

§§ 27.001, et seq., which was found to conflict with Rule 12 & 56 in Klocke v. Watson, 936 F.3d 240 (5th 

Cir. 2019), the Florida statute does not conflict and is strictly a substantive fee-shifting statute.13

4.0 Analysis

4.1 The Amended Complaint is a Shotgun Pleading, One Previously Thrown Out, Sua 

Sponte, by a Federal Judge

Mr. Klayman filed a nearly identical complaint in the Southern District of Florida. See Dkt. 

No. 34-1. Sua sponte, Judge Altman issued an Order Requiring More Definite Statement, requiring Mr. 

Klayman to “remove all references to irrelevant, conclusory, and scandalous material” and, if he were 

to replead the Lanham Act claim, show cause that he had standing to do so. See Dkt. No. 34-2, Klayman 

v. Infowars, Case No. 20-80614-CIV (S.D. Fla. Apr. 13, 2020). The complaint was deemed a “shotgun 

pleading”, violating Fed. R. Civ. P. 8 & 10(b). The case upon which Judge Altman relied, Weiland v. 

Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1323 (11th Cir. 2015), has been favorably cited in this 

Circuit. See, e.g., Sistrunk v. Haddox, No. 18-516, 2020 U.S. Dist. LEXIS 88178, at *32-33 (W.D. La. 

12 While the statute refers to a “motion for summary judgment,” Defendants seek dismissal 

under Fed. R. Civ. P. 12(b)(6). A party need not bring a motion styled as a motion for summary 

judgment to be entitled to an award of costs and fees. See Bongino v. The Daily Beast Company, LLC, No. 

2:19-cv-14472-JEM, Doc. No. 23 (S. D. Fla. Aug. 6, 2020) (granting motion to dismiss under Fed. R. 

Civ. P. 12(b)(6) and finding entitlement to fees under Fla. Stat. § 768.295) (attached as Exhibit 2.)

13 To the extent the TCPA would apply under a choice of law analysis and the decision in Klocke

is reversed, Defendants bring this motion pursuant to that statute in the alternative.

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May 19, 2020). Rather than comply with the order, Mr. Klayman dismissed that action. See Dkt. Nos. 

34-3 & 34-4. He pursued the same complaint here – forum shopping his ludicrous claims to a court

he apparently presumed would not hold him to the same standard. Mr. Shroyer hopes that Klayman 

was mistaken. 

The Amended Complaint contains identical material the Southern District of Florida found 

irrelevant, conclusory, and scandalous. It also fails to make the additional showing of standing under 

the Lanham Act claim. The closest Mr. Klayman came to complying was in filing yet another identical

lawsuit, styled Klayman v. Infowars, Case No. CACE-20-007120 (17th Jud. Cir., Fla. filed Apr. 28, 2020), 

in which the same defamation claims were raised as in the complaint stricken by Judge Altman, 

substituting a claim under the Florida Deceptive and Unfair Trade Practice Act (FDUTPA), Fla. Stat. 

§§ 501.202 et seq., for the Lanham Act claim.14 This Court should respect and follow the decision of 

Judge Altman and dismiss the amended complaint.

15

4.2 Plaintiffs Do Not Allege Mr. Shroyer Did Anything

Plaintiffs do not allege Mr. Shroyer uttered an actionable word or otherwise did anything that 

could expose him to liability. All of their claims against Mr. Shroyer thus fail at the outset. All they 

do is make the bare assertion that Mr. Shroyer acted “in concert” with the other Defendants, 

presumably by being in the same room as other Defendants when they made allegedly actionable 

statements. This is not sufficient. “Bald allegations that a conspiracy existed are insufficient.” Lynch 

v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir. 1987)). 

“Under Texas law, a civil conspiracy requires (1) two or more persons; (2) an object to be 

accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, 

14 The Florida case remains pending. Since the Court deemed the Amended Complaint in this 

case to supersede the original complaint, the Florida case was a prior pending action at the time the 

Amended Complaint was filed. Thus, Mr. Klayman’s suit here is a duplicate that should be dismissed. 

See Oliney v. Gardner, 771 F.2d 856, 859 (5th Cir. 1985); see also Philpot v. Emmis Operating Co., No. 1:18-

CV-816-RP, 2019 U.S. Dist. LEXIS 180125, at *16-17 (W.D. Tex. June 25, 2019).

15 Although the Court could issue an order under Rule 12(f) requiring a more definite statement, 

Plaintiffs have had their chances and they have taken enough bites at the apple.

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overt acts; and (5) damages as the proximate result. Triplex Communications, Inc. v. Riley, 900 S.W.2d 

716, 719-20, 38 Tex. Sup. Ct. J. 765 (Tex. 1995). For a conspiracy claim, there must be an injury 

resulting from an act done pursuant to a common purpose.17 Trostle v. Combs, 104 S.W.3d 206, 214-15 

(Tex. App. -- Austin 2003, no pet.) (citing Carroll v. Timmers, Chevrolet, Inc., 592 S.W.2d 922, 925, 23 Tex. 

Sup. Ct. J. 131 (Tex. 1979)).” Cedillos v. Tex. Dep't of Pub. Safety, No. SA-03-CA-0427-XR, 2005 U.S. 

Dist. LEXIS 3846, at *23-24 (W.D. Tex. Mar. 10, 2005); accord Walters v. Blankenship, 931 So. 2d 137, 

140 (Fla. Dist. Ct. App. 2006) and Morgan v. Union Cty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 

364-65, 633 A.2d 985, 998 (Super. Ct. App. Div. 1993). 

The Amended Complaint consists of bald assertion after bald assertion. Although the 

Amended Complaint asserts Defendants acted in concert or as surrogates for Stone, with the word 

“concert” appearing 38 times, no facts alleging how they acted in concert or how they were surrogates 

are set forth. In fact, Dr. Corsi, represented by Mr. Klayman, lost on this very “surrogacy” theory 

only last month in a similar claim in the absence of “a scintilla of admissible evidence to support” it. 

See Exhibit 3, Corsi v. Stone, et al. Case No. 19-CA-013711-AXX (15th Jud. Cir., Fla. Aug. 12, 2020). 

Corsi should not get a “lateral appeal” of his unsupportable theory in this court. 

There are no allegations as to any object to be accomplished or a meeting of the minds. Thus, 

Mr. Shroyer cannot be liable for anything done by any other Defendant. Due to the lack of any viable 

conspiracy claim and the lack of any allegations specific to Mr. Shroyer, Plaintiffs have failed to state 

a claim against him. Similarly, the allegations that Mr. Shroyer “ratified” the allegedly defamatory 

statements, as a form of that word appears 6 times in the Amended Complaint, lacks merit. 

A “conclusory allegation” that a defendant “ratified’ defamation, without “factual content in support 

17 No choice of law analysis is required as to this issue, as Texas and Florida law is in agreement. 

“[F]or a court to conduct a choice of law analysis, it must be presented with a true conflict of laws. A 

‘true conflict’ arises when the law of two or more forums conflicts in such a way that the difference 

has a significant effect upon the outcome of the case.” Arrowood Indem. Co. v. Gulf Underwriters Ins. Co., 

No. EP-08-CV-285-DB, 2010 U.S. Dist. LEXIS 152771, at *9 (W.D. Tex. Mar. 3, 2010) (internal 

citation omitted). Further, any choice of law analysis must be done on an issue-by-issue basis. See 

Toyota Motor Co. v. Cook, 581 S.W.3d 278, 284 (Tex. App. 2019); see also Palomo v. United States, No. 

1:96cv329GR, 1997 U.S. Dist. LEXIS 24103, at *6 (S.D. Miss. Mar. 14, 1997) (“Texas law also utilizes 

depeçage, an issue by issue analysis in choice of law decisions.”)

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of this assertion, let alone the type of factual content that would allow the court to ‘to draw the 

reasonable inference that the defendant is liable for the misconduct alleged’” is insufficient. King v. 

Jarrett, No. 1:15-CV-491-LY, 2016 U.S. Dist. LEXIS 196578, at *19-20 (W.D. Tex. June 17, 2016)

quoting Iqbal, 556 U.S. at 677. 

Assuming, arguendo, Plaintiffs adequately asserted a conspiracy claim against Mr. Shroyer, 

Plaintiffs present no elements of any of these other claims. Mr. Shroyer hereby incorporates by 

reference the discussions of Plaintiffs’ defamation, defamation per se, defamation by implication, 

intentional infliction of emotional distress, assault, and Lanham Act claims found in the forthcoming 

motions to dismiss filed by the other Defendants.

4.3 Plaintiffs Failed to Comply with the TDMA

Even if Plaintiffs had alleged Mr. Shroyer uttered every allegedly defamatory word at issue, 

Plaintiffs’ defamation claims would still fail for failure to comply with the pre-suit notification 

provisions of the Texas Defamation Mitigation Act (“TDMA”). The TDMA

provides that “[a] person may maintain an action for defamation only if ... the person 

has made a timely and sufficient request for correction, clarification, or retraction from 

the defendant.” [Tex. Civ. Prac. & Rem. Code §] 73.055(a). If a plaintiff does not 

make such a request before the statute of limitations expires, she may not state a claim 

for defamation. See id. at § 73.055(b).

Tubbs v. Nicol, 675 F. App’x 437, 439 (5th Cir. 2017). The statute of limitations for defamation in 

Texas is one year. Tex. Civ. Prac. & Rem. Code § 16.002. It has been over a year since the alleged 

statements were made, and Mr. Shroyer is not alleged to have been sent a request for correction, 

clarification, or retraction (and Plaintiffs cannot otherwise show a sufficient request was sent). 

This is not a case where the plaintiffs can dismiss, send a TDMA request, and re-file. “The 

Fifth Circuit has held that Texas applies its own statute of limitations, regardless [of] what substantive 

law applies.” Woolley v. Clifford Chance Rogers & Wells, L.L.P., 2004 U.S. Dist. LEXIS 97, 2004 WL 

57215, at *3 (N.D. Tex. Jan. 5, 2004) (citations omitted). Texas has a one-year statute of limitations 

for defamation claims. See Tex. Civ. Prac. & Rem. Code § 16.002(a). It applies to all of the common 

law claims, as this “one-year limitation likewise applies to other causes of action for which the 

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gravamen of the complaint is injury to a plaintiff's reputation because of allegedly defamatory 

statements.” Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 741-42 (5th Cir. 2019) (citations 

omitted). The claims accrue on the “first date of publication,” even on the internet. See id. at 742 

(citations omitted).

Although Florida has its own defamation mitigation statute, Fla. Stat. § 770.01, with which Mr. 

Klayman similarly failed to comply, and under which his defamation claims would be dismissed, the 

Texas statute governs. The New Jersey iteration, N.J. Stat. § 2A:43-2, with which Dr. Corsi similarly 

failed to comply, restricts damages to those “specially alleged in the complaint.” Dr. Corsi pleads no 

special damages and, thus, there are no damages recoverable. “For procedural matters, ... Texas, 

generally speaking, applies the law of the forum state.” Porter v. Charter Med. Corp., 957 F. Supp. 1427, 

1432 n.2 (N.D. Tex. 1997) (collecting cases). The Texas statute is a “procedure.”18 Butowsky v. 

Folkenflik, Civil Action No. 4:18CV442, 2019 U.S. Dist. LEXIS 104297, at *132-33 (E.D. Tex. Apr. 

17, 2019); Hearst Newspapers, LLC v. Status Lounge, Inc., 541 S.W.3d 881, 891 (Tex. App. 2017). 

Similarly, the Florida statute is a “procedural step.” Ross v. Gore, 48 So. 2d 412, 416 (Fla. 1950). 

4.4 Mr. Shroyer is Entitled to Fees and Costs under the Florida Anti-SLAPP Statute as 

against Larry Klayman, since he is a Florida citizen 

Plaintiff Larry Klayman should be required to pay Mr. Shroyer’s attorneys’ fees and costs. Mr. 

Klayman is a citizen of Florida. Dkt. No. 47 at ¶ 4. As such, he is subject to the laws of Florida, 

including its Anti-SLAPP law, under the most significant relationship test. Unlike the substantive law 

as to the causes of action, there is a conflict between Texas and Florida anti-SLAPP law. The Texas 

Citizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code § 27.001, et seq., is also an Anti18 It is, however, sufficiently substantive for Erie purpose to apply in diversity cases, as other presuit notice requirements are enforceable. See Baber v. Edman, 719 F.2d 122, 123 (5th Cir. 1983) (finding 

Texas pre-suit notice in medical malpractice cases to apply in diversity actions); Davis v. Allstate Fire & 

Cas. Ins. Co., Civil Action No. 4:18-CV-00075, 2018 U.S. Dist. LEXIS 109574, at *5-7 (E.D. Tex. June 

29, 2018) (same regarding Texas Deceptive Trade Practice Act requirement and collecting cases). The 

Fifth Circuit has applied the TDMA pre-suit notice requirement. Tubbs v. Nicol, 675 F. App'x 437, 439 

(5th Cir. 2017). The Fifth Circuit and other federal courts have similarly applied the Fla. Stat. § 770.01. 

See Caldwell v. Crowell-Collier Pub. Co., 161 F.2d 333, 336 (5th Cir. 1947); Tobinick v. Novella, 2015 U.S. 

Dist. LEXIS 31884, at *31 (S.D. Fla. Mar. 16, 2015); Laney v. Knight-Ridder Newspapers, Inc., 532 F. Supp. 

910, 911 n.2 (S.D. Fla. 1982).

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SLAPP statute passed for the purpose of immunizing speakers from frivolous litigation based on 

protected speech. The TCPA requires a plaintiff, at the outset of litigation and before discovery has 

commenced, to “establish[] by clear and convincing evidence a prima facie case for each essential 

element of the claim in question.” See Tex. Civ. Prac. & Rem. Code § 27.005(c). In contrast, the 

Florida statute, Fla. Stat. § 768.295(4), “fuses with Rules 8, 12, and 56 by entitling the prevailing party 

to fees and costs if, after invoking the devices set forth by those rules, a court finds an action is 

‘without merit’ and thus prohibited.” Bongino v. The Daily Beast Co., Case No. 2:19-cv-14472 (S.D. Fla. 

Aug. 6, 2020), slip op. at 16. 

There are 7 general factors courts should consider in a choice of law analysis:

(a) The needs of the interstate and international systems,

(b) The relevant policies of the forum,

(c) The relevant policies of other interested states and the relative interests of 

those states in the determination of the particular issue,

(d) The protection of justified expectations,

(e) The basic policies underlying the particular field of law,

(f) Certainty, predictability and uniformity of result, and ease in determination 

and application of the law to be applied.

Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000) (quoting Restatement (Second) of Conflict 

of Laws § 6(2)). As noted above, Texas also consider four additional factors in tort cases: “(a) the 

place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the 

domicile, residence, nationality, place of incorporation, and place of business of the parties, and (d) the 

place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict

of Laws, § 145(2). 

Not all factors are weighed equally in every analysis. For example, factors such as the location 

where a tort occurred and where injury was felt are important in determining which state’s law should 

be applied in determining liability, but not when deciding which law to apply regarding damages. 

Torrington Co. v. Stutzman, 46 S.W.3d 829, 849 (Tex. 2000). And factors like the justified expectations 

of the parties is of lesser importance in tort cases. Restatement (Second) of Conflict of Laws, § 145 

cmt. b. Mr. Shroyer only argues that Florida’s Anti-SLAPP law should apply, and so factors such as 

the states’ policies and the domicile of the plaintiff are more important to this analysis. 

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4.4.1 The Policies of the States, Basic Anti-SLAPP Policies, and Needs of the 

Interstate System

Texas and Florida both have a strong interest in protecting individuals from frivolous 

defamation claims. Specifically, the TCPA provides that:

The purpose of this chapter is to encourage and safeguard the constitutional rights of 

persons to ... speak freely ... and otherwise participate in government to the 

maximum extent permitted by law and, at the same time, protect the rights of a person 

to file meritorious lawsuits for demonstrable injury.

Tex. Civ. Prac. & Rem. Code § 27.002. Florida’s law similarly provides that:

It is the intent of the Legislature to protect the right in Florida to exercise the rights 

of free speech in connection with public issues ... It is the public policy of this state 

that a person ... not engage in SLAPP suits because such actions are 

inconsistent with the right of persons to exercise such constitutional rights of 

free speech in connection with public issues. Therefore, the Legislature finds and 

declares that prohibiting such lawsuits as herein described will preserve this 

fundamental state policy, preserve the constitutional rights of persons in Florida, and 

assure the continuation of representative government in this state.

Fla. Stat. § 768.295(1) (emphasis added). Importantly, Florida’s underlying policy includes 

discouraging SLAPP suits, and not simply protecting Florida residents from these suits. The kind of 

harm the law is meant to prevent is “unnecessary litigation” in response to certain categories of speech. 

Gundel v. AV Homes, Inc., 264 So. 3d 304, 311 (Fla. 2d DCA 2019).

Considering the policies of the relevant states, Florida’s Anti-SLAPP statute should be applied. 

Texas has a policy of protecting its residents from SLAPP suits, and Florida has a policy of 

discouraging Floridians from filing SLAPP suits. Applying Florida law will serve both of these 

policies, while applying Texas law will serve neither of them. For this reason, the interstate system of 

laws would not be in any way compromised by application of Florida law here, either.

4.4.2 Protection of Justified Expectations

Defendants are justified in expecting Florida’s laws to apply to Mr. Klayman, a Florida 

resident. He cannot escape the laws of his state of residence simply by bringing his claims in a different 

forum, whether it be D.C., Texas, or the prior-pending action in Florida. Likewise, Mr. Klayman 

should expect that he will be subject to a Florida law specifically designed to discourage SLAPP suits 

brought by Florida residents. In fact, Mr. Klayman filed a nearly identical complaint in the Southern 

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District of Florida19 and, thereafter, in the state court of Florida. Mr. Klayman evidently believes

Florida law should apply to his claims, and he cannot now claim it would be improper to apply

Florida’s Anti-SLAPP statute.

4.4.3 Certainty, Predictability, and Uniformity of Results, and the Ease in 

Determination and Application of the Law to be Applied

There is no likelihood of uncertain or non-uniform results by virtue of applying Florida’s AntiSLAPP statute, nor would it be difficult to apply Florida law here. Florida’s statute would only have 

the effect of entitling Defendants to an award of costs and attorneys’ fees if the Motion to Dismiss is 

granted. Thus, the only question is whether Mr, Klayman has adequately pled his claims, which the 

Court must otherwise decide under Rule 12(b)(6).

4.4.4 Where the Injury and Conduct Causing the Injury Occurred

While Mr. Klayman does not allege he suffered harm in any particular state, the state in which 

he suffered the most harm must have been Florida. He resides there and, presumably, does his alleged 

work as an “author, columnist, and syndicated radio talk show host” there. Dkt. No. 47 at ¶ 4. He 

also alleges to have previously run for U.S. Senate in Florida. Dkt. No. 47 at ¶ 60. The Middle District 

of Florida, applying the same “most significant relationship” test that Texas uses, has found that “the 

applicable substantive law for purposes of the anti-SLAPP statute is the state of [the plaintiff’s] 

principal place of business, where the loss of sales and market share was most felt.” Ranbaxy Labs., 

Inc. v. First Databank, Inc., 2014 U.S. Dist. LEXIS 31916 (M.D. Fla. Mar. 12, 2014); see also Tobinick v. 

Novella, 108 F. Supp. 3d 1299, 1303-04 (S.D. Fla. 2015). 

4.4.5 Domicile and Place of Business of the Parties

“[T]he place of the plaintiff’s domicil, or on occasion his principal place of business, is the 

single most important contact for determining the state of the applicable law as to most issues in 

situations involving the multistate publication of matter that injures plaintiff’s reputation or causes 

him financial injury ....” Restatement (Second) of Conflict of Laws, § 145 cmt. e. Mr. Klayman is a 

19 Plaintiffs erroneously state the Florida federal case was transferred to this Court. Dkt. No. 47 

at ¶ 2. In reality, Mr. Klayman dismissed those claims voluntarily.

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Florida resident and his claims primarily allege personal harms such as reputational injury and 

emotional damage. There is thus a strong presumption that Florida’s Anti-SLAPP law should apply. 

The Southern District of New York previously dealt with a situation similar to the one here in 

Adelson v. Harris, 973 F. Supp. 2d 467 (S.D.N.Y. 2013) (aff’d, 876 F.3d 413 (2d Cir. 2017)). That case 

involved a Nevada plaintiff bringing a defamation suit against Washington, D.C. residents. The court 

found that Nevada’s Anti-SLAPP statute applied to the dispute because the plaintiff and his business 

were both located in Nevada, and “Nevada has an interest in protecting its citizens from tortious 

conduct.” Id. at 477-78. Similarly, Mr. Klayman is domiciled in Florida and Florida has an express 

interest in preventing its residents from filing and prosecuting SLAPP suits.

The District of Massachusetts came to same conclusion in Ayyadurai v. Floor64, Inc., 270 F. 

Supp. 3d 343 (D. Mass. 2017) in applying Massachusetts’s Anti-SLAPP statute. There, the plaintiff 

was domiciled in Massachusetts at the time the defendant published allegedly defamatory statements 

online from California. It found that, even though California’s statute was more protective than 

Massachusetts’s, the Massachusetts law should apply due to the strength of the presumption that a 

plaintiff’s domicile should determine the choice of law analysis. Id. at 354. On balance, the above 

factors weigh in favor of applying Florida’s Anti-SLAPP statute. 

4.5 The Florida Anti-SLAPP Statute Applies in Federal Court

The Fifth Circuit has determined that the TCPA’s protections do not apply in federal court.20 

See Klocke v. Watson, 936 F.3d 240, 248-49 (5th Cir. 2019) (finding that procedural hurdles and burdenshifting in the TCPA were inconsistent with Fed. R. Civ. P. 12 and 56). Florida’s statute, however, is 

different from the TCPA in that it has no burden-shifting mechanism or language; instead, “Florida’s 

statute is a garden variety fee shifting provision, which the Florida legislature enacted to accomplish a 

‘fundamental state policy’—deterring SLAPP suits. Fla. Stat. § 768.295(1).” Bongino, supra at 16. The 

Bongino decision specifically distinguished the Klocke decision and the TCPA in reaching this 

20 In the event the Klocke decision is reversed and Texas anti-SLAPP law would otherwise apply

in this case under choice of law principles, Defendant invokes the protections of the TCPA in the 

alternative.

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conclusion. Id. Thus, as Florida has the most significant interest in the application of its anti-SLAPP 

statute, this Court can apply that state’s law, as it survives the Klocke analysis.

The Fifth Circuit has recognized that state fee-shifting statutes apply in diversity cases. Powell 

v. Old Southern Life Ins. Co., 780 F.2d 1265, 1267 (5th Cir. 1986) (holding that “[f]ederal courts in 

diversity ... follow[] state statutes allowing attorney’s fees unless the state practice directly conflicts 

with a ... rule of court”); see also Exxon Corp. v. Burglin, 42 F.3d 948, 950 (5th Cir. 1995) (same). 

Accordingly, Florida’s Anti-SLAPP statute is a substantive fee-shifting statute and it is applicable in 

this matter.

4.6 Larry Klayman Filed this Suit in Violation of Fla. Stat. § 768.295

Mr. Klayman violated Florida’s Anti-SLAPP statute in filing this suit. The Florida statute 

prohibits suits against “another person or entity without merit and primarily because such person or 

entity has exercised the constitutional right of free speech in connection with a public issue.” Fla. 

Stat. § 768.295(3). “Free speech in connection with public issues” means speech “made in or in 

connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine 

article, musical work, news report, or other similar work.” Id. § 768.295(2)(a). Plaintiffs claim 

Defendants’ allegedly defamatory statements were made on The Alex Jones Show and The War Room, 

which are both “broadcast on radio and internet social media networks throughout the United States 

of America and internationally ... and online.” Dkt. No. 47 at ¶¶ 12-13. Though Mr. Shroyer did not 

personally make any of these statements, Plaintiffs allege some undefined involvement in making these 

statements. Mr. Klayman brought his claims directly in response to these alleged radio broadcasts, i.e.

free speech in connection with public issues. As explained above (and by the other defendants), Mr. 

Klayman’s claims are meritless and must be dismissed. Mr. Shroyer will, therefore, be the prevailing 

party for purposes of Fla. Stat. § 768.295(4), entitling him to an award of costs and attorneys’ fees.

4.7 Plaintiffs are Vexatious Litigants

Plaintiffs are vexatious litigants. They file the same claims, against the same defendants, time 

after time, ignoring judicial pronouncements as to the merits of their claims, personal jurisdiction, 

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standing, and shotgun pleading. This Court should enjoin them from any such further complaints

without leave of court.

As this Court has held, “[o]ne of the well-settled appropriate exercises of a court's power to 

sanction is issuing pre-filing injunctions against vexatious litigants.” Houston v. Gonzalez, No. A-16-CV986 LY, 2017 U.S. Dist. LEXIS 93693, at *9 (W.D. Tex. June 19, 2017) (report and recommendation adopted 

Aug. 31, 2017, Yeakel, U.S.D.J.). As the Court noted in Houston:

Before issuing a pre-filing injunction, a “court must weigh all the relevant 

circumstances,” including:

(1) the party's history of litigation, in particular whether he has filed vexatious, harassing, 

or duplicative lawsuits; (2) whether the party had a good faith basis for pursuing the 

litigation, or simply intended to harass; (3) the extent of the burden on the courts and 

other parties resulting from the party's filings; and (4) the adequacy of alternative 

sanctions.

Id. quoting Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 189 (5th Cir. 2008). Here, Plaintiffs’ history 

of vexatious, harassing, and duplicative lawsuits strongly favors such an injunction. As the claims fly 

in the face of prior adverse rulings, they have no good-faith basis. The burden on the courts and 

Defendants (and others) is high, where they are forced to litigate all over the country, the same claims, 

over and over. And, though monetary sanctions should be a part of any decision, they are insufficient; 

Plaintiffs have no fear of sanctions. 

5.0 Conclusion

In light of the foregoing, Mr. Shroyer respectfully requests this Honorable Court dismiss the 

matter as to him for failure to state a claim and award Mr. Shroyer his attorneys’ fees and costs under 

the Florida Anti-SLAPP law (as to Klayman only), Rule 11 (as to both plaintiffs), 28 U.S.C. § 1927 

and the Court’s inherent power (as to both plaintiffs),

21 and under the fee-shifting provision of the 

Lanham Act, 15 U.S.C. § 1117(a), as to both plaintiffs, and to bar Klayman and Corsi from filing 

further suits against him without prior leave of court.

21 Upon dismissal, Defendant will seek fees under these provisions by separate motion.

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Dated: August 26, 2020. Respectfully submitted,

/s/Marc J. Randazza

Marc J. Randazza (pro hac vice)

RANDAZZA LEGAL GROUP, PLLC

2764 Lake Sahara Drive, Suite 109

Las Vegas, NV 89117

Telephone: 702-420-2001

ecf@randazza.com

Jay M. Wolman (pro hac vice)

RANDAZZA LEGAL GROUP, PLLC

100 Pearl Street, 14th Floor

Hartford, CT 06103

Telephone: 702-420-2001

jmw@randazza.com

Bradley J. Reeves (TX Bar No. 24068266)

REEVES LAW, PLLC

702 Rio Grande Street, Suite 306

Austin, TX 78701

Telephone: 512-827-2246

brad@brtx.law

Attorneys for Defendants

Infowars, LLC; Free Speech Systems, LLC; 

Alex E. Jones; and Owen Shroyer

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Civil Action No. 1:20-cv-00298-LY

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above document was filed and served upon 

all parties of record on August 26, 2020 by CM/ECF, the court’s electronic filing system.

/s/ Marc J. Randazza

Marc J. Randazza

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