jesse ventura does not want chris kyle case moved to dallas

7/30/2019 Jesse Ventura Does Not Want Chris Kyle Case Moved to Dallas

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Governor Jesse Ventura,

a/k/a James G. Janos, Civil No. 12-0472(RHK/JJG)

Plaintiff,

v.

Taya Kyle, Executrix of the

Estate of Chris Kyle,

Defendant.

PLAINTIFF’S MEMORANDUM IN OPPOSITION

TO DEFENDANT’S MOTION TO TRANSFER VENUE

PRELIMINARY STATEMENT

Plaintiff, Governor Jesse Ventura (“Governor Ventura”), submits this

memorandum in opposition to the motion of Defendant, Taya Kyle, in her capacity as

Executrix of the Estate of Chris Kyle (the “Estate”), to transfer venue to the Dallas

Division of the U.S. District Court for the Northern District of Texas.1

As explained

more fully below, the motion should be denied because, despite any alleged

inconveniences the Estate may face in connection with a Minnesota trial, moving this

case to the Northern District of Texas would serve only to shift the inconvenience to

Governor Ventura, and to make available a jury pool that would likely be biased in favor

of “hometown hero” Chris Kyle. That, however, is not the purpose of a 28 U.S.C. §

1404(a) transfer.

1Dkt. No. 172. The Estate has deferred to the Court as to the appropriate time for its

requested transfer. See Mem. in Supp. of Def.’s Mot. to Transfer Venue (“Def.’s Mem.”)

2.

CASE 0:12-cv-00472-RHK-AJB Document 182 Filed 09/03/13 of 19



Seemingly conceding the point, it appears from counsel’s arguments that the

Estate never expected or intended to convince this Court that it is appropriate to transfer

this case after more than a year and one-half solely for Taya Kyle’s convenience, but

instead filed its motion in furtherance of a continuing strategy to publicly disparage

Governor Ventura and influence the court of public opinion. Toward that end, and

obviously writing more for the media than for this Court, the Estate’s lawyers have again

littered their brief with unnecessarily vitriolic comments and personal attacks against

Governor Ventura regarding a claimed lack of concern he has shown for the families of

deceased veterans by continuing this lawsuit.2

Fairness, however, demands full disclosure. The Estate’s lawyers, and Taya Kyle

herself in media interviews, have repeatedly tried to portray Governor Ventura as

doggedly pursuing his claim against a “widow” and, by doing so, intending to take from

her money needed to raise her children. But in their appeals for public sympathy, the

Estate’s lawyers and Taya Kyle have consistently avoided or downplayed the fact that the

publisher’s insurance company has been footing the bill for defense costs, and will likely

end up paying for any damages awarded.3

2The St. Paul Pioneer Press picked up on opposing counsels’ expressions of contempt

for Governor Ventura, commenting that, “defense attorneys for Taya Kyle again took a

dig at the former governor for pursuing the suit even after Kyle's death. They wrote that‘the lawsuit itself at this point conveys the message that Ventura has little or no regard

for the feelings of mourning family members of deceased veterans.’” See Aff. of

David Bradley Olsen in Supp. of Mem. in Opp’n to Def.’s Mot. to Transfer (“Olsen

Aff.”), Ex. A (emphasis added). Defense counsels’ media strategy and uncalled for

personal attacks against Governor Ventura are further discussed in Section B(3)(e) and

notes 35-41, below.3 See, e.g., Olsen Aff., Ex. D, Taya Kyle interview on FOX TV (“He is suing me for

money . . . for the money that I’m supposed to use to raise my children . . . the money he2




The Estate’s attorneys also fail when publicly vilifying Governor Ventura in

argument to mention that Taya Kyle knew, before she accepted appointment as

Executrix, that a motion would be made to substitute the Estate’s representative as a

defendant. She could, of course, have avoided any obligation to appear or to testify at

trial by declining the appointment, and letting a relative, a lawyer, an accountant, a bank

trust officer, or a friend serve as Executor. Because Taya Kyle chose to accept

appointment and to voluntarily inject herself into this lawsuit, however, she cannot now

claim that she will be inconvenienced by having to attend trial in Minnesota.

For these, and all of the reasons that follow, the Estate’s motion to transfer venue

should be denied.

STATEMENT OF THE FACTS

Chris Kyle co-authored a book entitled American Sniper , in which he describes an

alleged incident between himself and Governor Ventura during a wake for a Navy SEAL

killed in action. Among other things, Chris Kyle alleged that Governor Ventura said he

hates America, SEALs are murdering innocent people, and that SEAL’s deserve to die –

statements which, according to Chris Kyle, ultimately caused him to punch Governor

Ventura in the face, giving him a black eye.

Governor Ventura sued Chris Kyle for defamation because the incident is a

complete and total fabrication and, by concocting and publishing the story, Chris Kyle

viciously and deliberately attacked Governor Ventura’s character, honor, and reputation,

wants is mine.”); Fed. R. Evid. 411 (evidence that a person was or was not insured

against liability is not admissible to prove negligence or wrongful acts, but may be

admitted for other purposes, including to prove bias or prejudice).

3




and in so doing turned the Navy SEAL community – and Americans in general – against

him. Governor Ventura’s Complaint also includes claims for misappropriation of name

and likeness (appropriation branch of the right of privacy) and unjust enrichment.

Following Chris Kyle’s tragic death on February 2, 2013, Taya Kyle filed her

Statement Noting the Death of Chris Kyle and confirmed she had been duly appointed as

“Executor” of his estate.4 As had been previously discussed with the Magistrate Judge,

upon receipt of notice that a representative had been appointed Governor Ventura moved

to substitute Taya Kyle, Executrix of the Estate of Chris Kyle, as Defendant.5

On July

18, 2013, this Court granted the motion.6

The Estate now moves the Court to transfer this case to the Dallas Division of the

U.S. District Court for the Northern District in Texas. In its memorandum, the Estate

claims that a trial in Minnesota would be inconvenient for Taya Kyle, the Executrix,

citing her responsibilities as the executor of the estate and as a parent to her two children.

The Estate further argues that holding the trial in Minnesota would present a “significant

burden and inconvenience” and expose her to “expenses for airfare, meals, and lodging.”7

Just four days after telling this Court that it is too inconvenient for Taya Kyle to

attend trial in Minnesota, however, she voluntarily made the trip to Minneapolis to speak

at a public event marketed as the “Patriot Tour.” In fact, the Patriot Tour ran from

August 1 through August 17, 2013, and made seven stops in five states, including

4 Dkt. No. 150.5

Dkt. No. 151.6

Dkt. No. 171. 7 See Def.’s Mem. 1, 7. Notably, the Estate again avoids mention that the publisher’s

insurance company is paying the defense costs.4




Houston, Austin, and Dallas, Texas, and Indiana, Minnesota, Utah, and Florida.8 Taya

Kyle also spoke at the National Rifle Association’s annual convention in Houston on

May 3, 2013,9

followed by several public and media appearances in New York in early

June, 2013.10

The Estate admits, as it must, that very few events, operative or otherwise,

occurred in Texas.11 Minnesota, on the other hand, is Governor Ventura’s home, where

he was elected to its highest public office, and it is where the defamation damages

occurred.

ARGUMENT AND AUTHORITY

A. STANDARD OF REVIEW.

Motions to transfer venue are governed by 28 U.S.C. § 1404(a), which provides

that, “[f]or the convenience of the parties and witnesses, in the interest of justice, a

district court may transfer any civil action to any other district or division where it might

have been brought.” A court faced with a motion to transfer must undertake a two-part

inquiry: “The initial question . . . is whether the action might have been brought in the

proposed transferee district. If so, the Court must [then] consider the convenience and

interest of justice factors.” Austin v. Nestle USA, Inc., 677 F. Supp. 2d 1134, 1137 (D.

Minn. 2009) (Kyle, J.) (citation omitted).

Courts must be cognizant that transfer motions “should not be freely granted.” In

re Nine Mile Ltd., 692 F.2d 56, 61 (8th Cir. 1982), abrogated on other grounds by Mo.

8Olsen Aff., Ex. B.

9 Id., Ex. C.10

Id., ¶¶ 5, 7-8, and Ex. D.11 Def.’s Mem. 10.

5




Hous. Dev. Comm’n v. Brice, 919 F.2d 1306 (8th Cir. 1990). “A ‘heavy’ burden rests

with the movant to demonstrate why a case should be transferred.” Austin, 677 F. Supp.

2d at 1137 (emphasis added). To satisfy this “heavy” burden, “the movant must

demonstrate that the relevant factors weigh ‘strongly’ in its favor.” Id .

Three general factors inform whether a district court should grant a motion to

transfer: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3)

the interest of justice. See Terra Int’l, Inc. v. Miss. Chemical Corp., 119 F.3d 688, 691

(8th Cir. 1997). Each is discussed below.

B. DEFENDANT’S MOTION SHOULD BE DENIED.

1. Convenience of the Parties.

It is self-evident that Minnesota is the most convenient forum for Governor

Ventura – that is why he chose to file suit here. Governor Ventura’s home is here and he

is a Minnesota citizen and taxpayer. Similarly, Taya Kyle’s home forum would

undoubtedly be most convenient for her. Section 1404(a), however, “provides for

transfer to a more convenient forum, not to a forum likely to prove equally convenient or

inconvenient.” Van Dusen v. Barrack , 376 U.S. 612, 645-46 (1964); Graff v. Qwest

Commc’ns Corp., 33 F. Supp. 2d 1117, 1121 (D. Minn. 1999) (Doty, J.) (transfer should

not be granted “if the effect is simply to shift the inconvenience” from one party to the

other).

It is the Estate’s burden to show “that [Taya Kyle’s] inconvenience substantially

outweighs in the inconvenience that plaintiff would suffer if venue were transferred.”

Nelson v. Soo Line R.R. Co., 58 F. Supp. 2d 1023, 1026 (D. Minn. 1999) (Doty, J.). The

6




Estate argues at length that a trial in Texas would inconvenience Governor Ventura

“much less” than a trial in Minnesota would inconvenience Taya Kyle.12

But, although

lengthy, the Estate’s argument is not supported by the facts or the law.

Although the Estate argues, as it must, that a trial in Minnesota would present a

“significant burden and inconvenience” for Taya Kyle, the undisputed facts are that, for

the past three months, she has been voluntarily traveling across the country on media and

speaking tours – including a stop in Minneapolis on August 9, 2013. 13

It is also

undisputed that this suit was pending in Minnesota long before the Estate was substituted

as a party and that, with knowledge of the proposed substitution, Taya Kyle volunteered

to serve as Executrix and to voluntarily inject herself into these proceedings. Having

made a knowing and voluntary choice to do so, she cannot now claim that it is

inconvenient for her to participate.

Although discussed more fully in Section 3(e), below, it also cannot go without

comment here that, by granting the Estate’s motion, trial would take place in Texas,

where Chris Kyle is revered as a hero. When defendants have attempted similar ploys in

the past, courts have been adamant in their refusal to transfer. See, e.g., Queen Uno Ltd.

P’ship v. Coeur d’Alene Mines Corp., 2 F. Supp. 2d 1345, 1352 (D. Colo. 1998) (“In

short, Defendants ask the Court to transfer the case to a forum that is convenient only for

12Defendant cites to In re Apple, 602 F.3d 909, 913 (8th Cir. 2010) to argue that transfer

would minimize “personal costs associated with being away from work, family, and

community.” However, in Apple, the Eighth Circuit used such language to describe the

defendant’s witnesses, not the defendant itself.13

See also Def.’s Mem. 3-4 (“Taya Kyle’s responsibilities . . . include a collection of

diverse, complicated issues, ranging from the publication and promotion of [Chris

Kyle’s] posthumously published book American Gun, to the production of a screen

adaptation of American Sniper .”).7




them and that will grant them a jury pool from which they likely will draw highly

favorable, if not outright unfairly biased, jurors. These grounds are nothing more than

superficial counterfeits designed to gain Defendants an unfair ‘home-field advantage.’”)

(emphasis added), abrogated on other grounds by Adams v. Kinder-Morgan, Inc., 340

F.3d 1083 (10th Cir. 2003).

Trial in this matter is set for May 1, 2014.14 Defendant’s counsel argues that

starting a trial in Dallas “could be more convenient” for Ventura because that date:

falls roughly during the period that Ventura in the past has transitioned

from his home in Mexico to his home in Minnesota, and therefore is“location neutral” for trial either in Dallas (on his car trip back to

Minnesota) or in Minnesota (adjusting for a slightly earlier return to

Minnesota).15

The argument is illogical and unrealistic. It assumes Governor Ventura would be willing

and able to prepare for a two-week trial from his home in Mexico – where he does not

even have a telephone – and then drive to Dallas to meet with his Minnesota attorneys

and attend trial.

The bottom line is that, “courts in this District have repeatedly found that

deference to the plaintiff’s choice of forum is appropriate where the plaintiff resides in

the chosen forum.” Oien v. Thompson, 824 F. Supp. 2d 898, 905 (D. Minn. 2010)

(Tunheim, J.) (quoting Travel Tags, Inc. v. UV Color, Inc., 690 F. Supp. 2d 785, 795 (D.

Minn. 2010) (Tunheim, J.)). Because Governor Ventura resides in and is a citizen of

Minnesota, his choice to litigate here should be given deference. The Estate has simply

not produced any evidence to overcome the strong presumption in favor of the plaintiff’s

14 Dkt. No. 179.15

Def.’s Mem. 8 (underline emphasis added).8




chosen forum, and it has wholly failed to satisfy its “heavy burden” to show that the U.S.

District Court for the Northern District in Texas is a more convenient forum. Austin, 677

F. Supp. 2d at 1137. Because the Estate has not met its burden, and because transfer

would create “inconvenience for [Governor Ventura] where none existed before, the issue

of the convenience of the parties weighs in favor of denying the motion to transfer.”

Kayachith v. Robinson, No. Civ. 03-4504, 2004 WL 45502, at *1 (D. Minn. Jan. 2, 2004)

(Ericksen, J.).

2. Convenience of the Witnesses.

Like the convenience of the parties, the Estate cannot demonstrate that the

convenience of witnesses favors transfer. The convenience of the witnesses “is an

important factor for the court since it determines the relative ease of access to sources of

proof.” Graff , 33 F. Supp. 2d at 1121. In its analysis, “the Court must focus on non-

party witnesses, since ‘it is generally assumed that witnesses within the control of the

party calling them . . . will appear voluntarily in a foreign forum.’” Cosmetic Warriors

Ltd. v. Abrahamson, 723 F. Supp. 2d 1102, 1106 (D. Minn. 2010) (Kyle, J.) (quoting

Austin, 677 F. Supp. 2d at 1137).

The Estate correctly notes, with the omission of one New Hampshire resident, that

its fact witnesses reside in Arizona, California, Colorado, Georgia, Mississippi, Missouri,

Tennessee, and Texas.16 Governor Ventura also intends to call several eyewitnesses to

the (non) events at McP’s. But none of them live in Minnesota or Texas. Consequently,

16 See Def.’s Mem. 11-14.

9




a trial in Minnesota would be no more inconvenient for the fact witnesses than a trial in

Texas.

It is also important to note that all of the witnesses, regardless of their state of

residence, are beyond the subpoena power of the Northern District of Texas. Although

the Estate intends to call two witnesses who reside in Texas, neither of them live within a

hundred miles of Dallas, and neither can be compelled to attend trial in the Northern

District.17

Furthermore, the Estate is simply wrong in arguing that Governor Ventura “bears

the burden of showing the materiality of the testimony” of his witnesses.18

The reality is

that “[t]he party seeking transfer ‘must clearly specify the essential witnesses to be called

and must make a general statement of what their testimony will cover.” Oien, 824 F.

Supp. 2d at 904 (quoting Graff , 33 F. Supp. 2d at 1122) (emphasis added). The Estate

does not cite to any Minnesota law requiring the nonmovant to do the same – because

there is no such requirement. Accordingly, because the Estate has not demonstrated that

transfer is necessary for the convenience of witnesses, its motion should be denied.

3. The Interests of Justice.

When analyzing whether the interests of justice require a transfer, courts consider:

(a) judicial economy, (b) the plaintiffs’ choice of forum, (c) the

comparative costs to the parties of litigating in each forum, (d) each party’s

ability to enforce a judgment, (e) obstacles to a fair trial, (f) conflict of law

issues, and (g) the advantages of having a local court determine local law.

17 John Jones lives in Leander, Texas, which is approximately 180 miles from Dallas.

John Kelly lives in Austin, Texas, which is 190 miles from Dallas.18 Def.’s Mem. 14.

10




Cosmetic Warriors, 723 F. Supp. 2d at 1107 (citing Terra Int’l, 119 F.3d at 696). Each is

discussed below.

(a) Judicial Economy.

The Estate takes the unsupportable position that “the issues of judicial economy

should not weigh heavily in the Court’s decision whether to transfer venue.”19 To the

contrary, judicial economy should be at the forefront of this Court’s decision. This case

has been on the Court’s docket since February 2012. There have been several motions

filed and heard by the Court, including Chris Kyle’s motion for partial summary

judgment – which was denied – and the Court has ordered and overseen two separate

settlement conferences. Interests of judicial economy, therefore, weigh heavily against

transferring this case.

The judicial economy factor “typically involves consideration of docket backlog

and the time to disposition in the two forums.” Oien, 824 F. Supp. 2d at 905. The Estate,

however, does not address either. Instead, the Estate cites In re Apple and argues that the

judicial economy factor is neutral because, “whether one court would move any given

case to trial faster is ‘speculative.’”20 Given the time that has passed, this Court’s

intimate knowledge of the case, and the fact that a new trial date has been set, it strains

reason to argue that the U.S. District Court for the Northern District in Texas would be in

a better position to bring this case to an expeditious conclusion. See Van Dyke v.

Offshore Specialty Fabricators, Inc., No. Civ.A. G-04-525, 2005 WL 1249257 (S.D. Tex.

19Def.’s Mem. 16.

20Def.’s Mem. 16 (quoting In re Apple, 602 F.3d at 915).

11




Apr. 25, 2005) (finding potential delay of case already set for trial weighed against

transferring case).

Faced with a similar issue, the court in Mattel, Inc. v. Robard’s, Inc. found that the

interests of judicial economy outweighed the defendants’ inconvenience:

Although the defendants raise compelling grounds for transfer, the late

timing of this motion creates concerns of judicial economy that outweigh

considerations of inconvenience and expense to the defendants. . . .

Between [defendant’s] poor health and . . . three young children, the

defendants will clearly be inconvenienced by having to travel to the

Southern District of New York for trial. . . . However, the parties have

already expended considerable time and expense in conducting discovery . .

. . Transferring the case at this juncture would unnecessarily requireanother court to become familiar with this action.

139 F. Supp. 2d 487, 490-91 (S.D.N.Y. 2001).

As in the quoted case, and because the Estate “has presented no logical reason that

transfer would promote an efficient resolution of this dispute,” the interests of justice

weigh in favor of denying transfer. Oien, 824 F. Supp. 2d at 905.

(b) Plaintiff’s Choice of Forum.

Generally, federal courts “give considerable deference to a plaintiff’s choice of

forum.” Clergy Fin., LLC v. Clergy Fin. Serv., Inc., 598 F. Supp. 2d 989, 994 (D. Minn.

2009) (Davis, J.). Courts in this district “have repeatedly found that deference to the

plaintiff’s choice of forum is appropriate where the plaintiff resides in the chosen forum.”

Travel Tags, 690 F. Supp. 2d at 795.

As discussed above, Governor Ventura resides in and is a citizen of Minnesota

and, therefore, the nexus between Minnesota and this action is much stronger than the

12




Estate will concede. In fact, Minnesota’s interest far outweighs Texas’s interest because

“[a] state generally has a ‘manifest interest’ in providing its residents with a convenient

forum for redressing injuries inflicted by out-of-state actors.” See Burger King Corp v.

Rudzewicz, 471 U.S. 462, 474 (1985).

The Estate’s only response is an attempt to downplay Governor Ventura’s

citizenship by arguing that he is “only a part-time resident.”21 The fact that he vacations

elsewhere during the winter, however, does not strip Governor Ventura of his Minnesota

residency or citizenship. Consequently, plaintiff’s choice of forum weighs against

transfer.

(c) Cost Comparison.

With the exception of one brief statement that “there is no reason to believe that a

trial in Texas would be more expensive than a trial in Minnesota,”22 the Estate’s

memorandum fails to address the comparative costs to the parties if this case is or is not

transferred. The reason for the omission is obvious, considering that both sides are

represented by Minnesota counsel who would, for several weeks, have to take up

residence and set up offices in Texas. The parties, of course, would bear the additional

costs.

Though Governor Ventura will personally incur all of the additional costs

associated with a transfer, it should be noted that is only technically true that transferring

to Texas will also increase costs for the Estate. Despite stating on her nation-wide

promotional tour that Governor Ventura is suing “me for money. . . . For my estate, for

21 Def.’s Mem. 7.22

Def.’s Mem. 16.13




the money that I'm supposed to use to raise my children, for the money we wanted to give

to other veterans,” Taya Kyle admits that HarperCollins Publishers’s insurance carrier is

paying for the costs of defense, and will also be responsible for any judgment. 23

But,

whether the Estate or the publisher’s insurer is paying the costs of defense, there can be

no dispute that moving all of the Minnesota lawyers to Texas (where Governor Ventura’s

counsel may well have to engage local counsel) for a lengthy trial will dramatically

increase costs for both sides, and that a cost comparison therefore weighs against transfer.

(d) Judgment Enforcement.

Governor Ventura, like the Estate,24

does not anticipate any difficulty in enforcing

a judgment rendered by this Court. The ability to enforce the Court’s judgment,

therefore, does not weigh in favor of transferring the case from the District of Minnesota.

(e) Obstacles to a Fair Trial.

In deciding a motion to transfer, the plaintiff “should not be sent to a forum which

in the court’s opinion does not assure it a fair trial.” Spound v. Action Indus., Inc., 369 F.

Supp. 1066, 1068 (N.D. Ill. 1974); see also Queen Uno Ltd., 2 F. Supp. 2d at 1352

(denying motion to transfer to venue in which “many potential jury members may be

biased against Plaintiffs and in favor of [Defendant]”). As alluded to above, there are

legitimate concerns about the prospects that Governor Ventura can seat an unbiased jury

if this case were moved to the Northern District in Texas.

Chris Kyle lived in Midlothian, Texas, just twenty-five miles from Dallas.

Following his tragic death, on Monday, February 11, 2013, he was honored with a two-

23 Olsen Aff., Ex. D.

24Def.’s Mem. 17.

14




hour memorial service at Cowboys Stadium in Dallas, during which his casket was

placed on the Cowboys’s star at midfield.25

Nearly 7,000 people attended the service.26

On the following day he was buried at the Texas State Cemetery in Austin, Texas, after a

200-mile funeral procession.27 Texans lined the roadways and highway overpasses to

pay their respects to Chris Kyle as the procession carried him to Austin,28 with news

agencies reporting that they “did not see a single empty overpass” along the way.29

In the aftermath of Chris Kyle’s death, the Texas House unanimously passed a

resolution honoring him,30

a bill nicknamed the “Chris Kyle Bill” was signed into law by

the Governor of Texas,31

and a petition was started to rename a seven-mile stretch of the

Central Expressway in Texas the “Chris Kyle Expressway.” 32

Governor Ventura is not in any way discounting the mourning and loss felt by

those who knew or respected Chris Kyle. But it is simply not credible for the Estate to

argue that Governor Ventura would receive as fair a trial in Texas as he would in

Minnesota, given the visceral emotions Chris Kyle evokes in so many Texans,

particularly in the Dallas area. Though this fact is purportedly lost on the Estate, it has

not been lost on the media, which reported that Taya Kyle “asked that the suit be moved

from Minnesota to North Texas where, on Feb. 11, a crowd estimated as large as 7,000

25Olsen Aff., Ex. E.

26 Id.27

Id., Ex. F.28 Id., Ex. G.29

Id., Ex. H.30

Id., Ex. I.31 SB 162, 2013 Leg., 83(R) Sess. (Tex. 2013); see also Olsen Aff., Ex. J.32

Olsen Aff., Ex. K.15




attended her husband's funeral service at Cowboys Stadium.”33 For the Estate to now

argue that “[t]here is no reason to believe . . . that [either party’s] respective ability to

obtain a fair trial will be impacted by transfer,”34

is to ask this Court to suspend common

sense and ignore reality.

In fact, and as mentioned above, defense counsel’s strategy has been, from the

very beginning, to disparage and vilify Governor Ventura at every opportunity, in an

effort to prejudice the jury pool. Rather than address the merits of the case, defense

counsel has made it a practice to call Governor Ventura’s integrity into question,

describing him as both dishonest and indifferent toward military families. Examples

include the following:

[T]he lawsuit itself at this point conveys the message that Ventura has

little or no regard for the feelings of mourning family members of

deceased veterans.35

In his pursuit of this lawsuit after the death of Chris Kyle, Ventura has

added to the burdens and trauma of a widow whose distinguished husband was brutally murdered.36

Plaintiff’s motion . . . to substitute Taya Kyle . . . as defendant in place of

her murdered husband comes as a disappointment, but no surprise. . . .

Continuing this action will serve no useful purpose, and likely will promote

public perception of Jesse Ventura as someone who has little or no regard

for the feelings and welfare of surviving family members of deceased

war heroes.37

[Governor Ventura is a] frequent fanfaron [defined by Webster’s as “an

empty boaster”] of future prospects for public office.38

33 Id., Ex. L.

34 Def.’s Mem. 17.35

Def.’s Mem. 2-3.36

Id.37 Def.’s Resp. to Pl.’s Mot. to Substitute Taya Kyle 1.38

Def.’s Mem. in Supp. of Mot. for Partial Summ. J. 1.16




Ventura has only his own word that Kyle did not punch him on October 12,

2006, after Ventura made the insensitive remarks – and Ventura has

sworn to so many conflicting statements that none of them deserve anyconsideration.

39

What Plaintiff’s Memorandum at 2–38 labels “Statement of the Facts” is

instead a toxic concoction of argument, mischaracterization, incomplete

or distorted citations to discovery (often simply his own argumentative

answers to inter rogatories), and unsupported assertions, mixed with an

occasional fact.40

Plaintiff has a tenuous relationship with facts.41

Defense counsel’s request to transfer this case to Dallas, the venue most likely to produce

a favorable jury pool for the defense, is merely the culmination of this strategy. Defense

counsel is attempting to reap the benefits of a systematic effort to prejudice the jury pool

against Governor Ventura, and Texas is the perfect place to do so. Fairness, therefore,

weighs against transfer.

(f) Conflict of Laws.

When a defendant seeks to transfer a case under 28 U.S.C. § 1404(a), “the

transferee district court must be obligated to apply the state law that would have been

applied if there had been no change of venue. A change of venue under § 1404(a)

generally should be, with respect to state law, but a change of courtrooms.” Van Dusen,

376 U.S. at 639; see also Oien, 824 F. Supp. 2d at 905. As this Court has already

determined that Governor Ventura’s claims will be determined by Minnesota law,

conflict of laws should be a non-factor.

39Def.’s Mem. in Opp’n to Pl.’s Mot. to Amend to Claim Punitive Damages 2.

40 Id. at 3.

41 Def.’s Mem. in Supp. of Mot. to Strike Pl.’s Belated and Sham Third Supplemental

Answers to Interrogs. 9.17




The Estate purports to agree, stating at one point that conflict of law issues are not

“material to the analysis in this case.”42

But then, buried in a footnote, the Estate argues

that Supreme Court jurisprudence will only dominate the claims “if Minnesota law

applies.”43 The Estate then goes on to argue that either the law of Texas or New York

should apply to this case, and that neither state would allow Governor Ventura’s claims

for misappropriation and unjust enrichment. The argument is disingenuous.

While conflicts of law should not be an important factor at this point, the Estate

has brought the issue to the forefront by revealing that it intends to relitigate the

applicability of Minnesota law if this case is transferred. Clearly, it is not in the interest

of justice (or judicial economy) to transfer the case to a venue in which the Estate will

attempt to reargue an issue that was conclusively decided against it by this Court.

(h) Local Court to Determine Local Law.

While federal district courts are presumed to be equally capable of applying the

law of any given state, the preference is for local courts to determine questions of local

law. See Huggins v. Stryker Corp., -- F. Supp. 2d --, Civ. No. 09-1250, 2013 WL

1191058, at *7 (D. Minn. Mar. 25, 2013) (Tunheim, J.) (“Although the District of Oregon

is capable of applying Minnesota’s statute of limitations, the Eighth Circuit has suggested

that it is preferable for local courts to determine issues of local law.”) (citing Terra Int’l,

119 F.3d at 696). This is particularly true where the local law to be applied is unique.

See Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1170 (10th Cir. 2010)

(“When the merits of an action are unique to a particular locale, courts favor adjudication

42 Id.43

Id.18




by a court sitting in that locale.”); see also Chapman v. Sorenson, Civ. No. 10-711, slip

op. at 2 (D. Minn. June 7, 2013) (Davis, J.) (transferring to federal court in Washington

because the case would “likely turn on unique aspects of Washington law” that differed

significantly from Minnesota law).

This Court has already determined that Minnesota law applies to Governor

Ventura’s claims. This determination, coupled with the fact the Estate will argue that

many of Governor Ventura’s claims are not recognized in Texas, dictates that this Court

is in a superior position to determine the merits of the case. Therefore, the final factor

also weighs against transfer.

CONCLUSION

For all of the foregoing reasons, the Estate’s motion to transfer venue should be

denied.

HENSON & EFRON, P.A.

Dated: September 3, 2013. By s/ David Bradley Olsen David Bradley Olsen, 197944

Court J. Anderson, 331570

John N. Bisanz, Jr., 0389098

220 South Sixth Street, Suite 1800

Minneapolis, Minnesota 55402-4503

Telephone: 612-339-2500Facsimile: 612-339-6364

Attorneys for Plaintiff

19




CASE 0:12-cv-00472-RHK-AJB Document 183 Filed 09/03/13 Page 1 of 4



CASE 0:12-cv-00472-RHK-AJB Document 183-1 Filed 09/03/13 Page 1 of 3

jesse ventura does not want chris kyle case moved to dallas

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