kinsman opposes transfer

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ERICA KINSMAN, Plaintiff, v. JAMEIS WINSTON, Defendant.

CASE NO. 6:15-cv-696-Orl-22GJK

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS

MOTION TO TRANSFER VENUE (DOC. 8)

(AND INCORPORATED MEMORANDUM OF LAW)

I. INTRODUCTION

Ms. Kinsman did not choose to be raped in Tallahassee. Having chosen, however, to

bring suit in a neutral forum in which both parties now reside, justice and fairness do not

permit her alleged assailant to disturb that choice of forum especially where, as here, he has

failed to meet and cannot meet his heavy burden of demonstrating, by clear and convincing

evidence, that the Tallahassee Division of the Northern District of Florida is a more

convenient forum in which to litigate Ms. Kinsmans claims.

II. BACKGROUND

A. Overview & Procedural Posture

This is an intentional tort case between two residents of the Middle District of

Florida, see, e.g., (Ex. 1, Kinsman Decl., 3);1 (Doc. 7, Answer, 4), for common law

claims of sexual battery, assault, false imprisonment and intentional infliction of emotional

distress arising out of forcible rape. See generally (Doc. 2, Compl.).

1 Unless otherwise noted, all exhibits cited herein are attached to the Declaration of John Clune in Support of Plaintiffs Response in Opposition to Defendants Motion to Transfer Venue.

Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 1 of 22 PageID 380

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On April 16, 2015, Ms. Kinsman brought suit in Floridas Ninth Judicial Circuit

Court. (Id.). Thereafter, Defendant removed the case to this Court. (Doc. 1). In deciding to

effect removal, Defendant properly fixed the venue for this case in the Orlando Division of

the Middle District and, as a matter of law, lost the ability to challenge venue as being

improper.2

B. Title IX Case Against FSU

Separate and apart from her tort claims against Defendant, Ms. Kinsman brought suit

in this Court against The Florida State University Board of Trustees (FSU), contending that

school administrators failed to properly investigate and respond to her allegations of being raped

and that those failures violated FSUs obligations under Title IX of the Education Amendments

of 1972, 20 U.S.C. 1681-1688. See Kinsman v. The Fla. State Univ. Bd. of Trustees, Case No.

6:15-cv-16 (M.D. Fla. 2015) [hereinafter, the Title IX case].

There is very little, if any, factual or legal overlap between Ms. Kinsmans claims

against FSU and her claims against Defendant. To prevail on her claims against FSU,

Ms. Kinsman does not have to establish that she was raped by Defendant.3 Similarly, FSU

may be found liable under Title IX irrespective of whether Ms. Kinsman prevails on her tort

claims in this case against Defendant. Conversely, Defendant may be found liable in this

case irrespective of whether Ms. Kinsman prevails on her Title IX claims against FSU.

2 See, e.g., Hollis v. Fla. State Univ., 259 F.3d 1295, 1300 (11th Cir. 2001) ([A]s a matter of law, 1441(a) establishes federal venue in the district where the state action was pending. . . .). 3 A plaintiff seeking damages for student-on-student harassment under Title IX must prove four elements: (1) the defendant must be a Title IX funding recipient; (2) an appropriate person must have actual knowledge of the discrimination or harassment that the plaintiff alleges occurred; (3) the funding recipient must act with deliberate indifference; and (4) the discrimination must be so severe, pervasive, and objectively offensive that it effectively bars the victims access to an educational opportunity or benefit. Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282, 1293 (11th Cir. 2007).


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III. STATEMENT OF LAW

A motion to transfer pursuant to 28 U.S.C. 1404(a) is committed to the sound

discretion of the district court. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)

(Section 1404(a) is intended to place discretion in the district courts to adjudicate motions for

transfer according to an individualized, case-by-case consideration of convenience and

fairness.) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). However, a

plaintiffs choice of forum should not be disturbed unless it is clearly outweighed by other

considerations. Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996)

(emphasis added).4 Accordingly, a change of venue will not be granted unless the movant

demonstrates that other considerations strongly override the plaintiffs choice of forum. Id.;

see also, e.g., J.I. Kislak Mortg. Corp. v. Conn. Bank & Trust Co., 604 F. Supp. 346, 348

(S.D. Fla. 1985); Kenneth F. Hackett & Assocs., Inc. v. GE Capital Info. Tech. Solutions,

Inc., No. 10-20715-CIV, 2010 WL 3056600, at *2 (S.D. Fla. Aug. 4, 2010).

The other considerations to be considered in conjunction with the plaintiffs choice

of forum include:

(1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forums familiarity with the governing law; (8) the weight accorded a plaintiffs choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances.

4 See also, e.g., In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989); Sterling v. Provident Life & Accident Ins. Co., 519 F. Supp. 2d 1195, 1206-07 (M.D. Fla. 2007); Oller v. Ford Motor Co., No. 92-cv-523, 1994 WL 143017, at *2 (M.D. Fla. Mar. 30, 1994) ([U]nless the balance of convenience and interest of justice strongly favor the defendant, the plaintiffs choice of forum will rarely be disturbed.).


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Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005).

The party seeking transfer bears the burden of establishing, by clear and convincing

evidence, that the case should be transferred to the suggested forum. See, e.g., In re Ricoh

Corp., 870 F.2d at 573 (burden is on the movant); J.I. Kislak Mortg. Corp., 604 F. Supp. at

348 (denying motion to transfer and noting it is well settled that [a] discretionary transfer

under 28 U.S.C. 1404(a) will not be granted absent a clear cut and convincing showing by

defendant that the balance of convenience weighs strongly in favor of the transferee court.).5

This heightened burden requires the movant to [p]rove with particularity the inconvenience

caused by the plaintiffs choice of forum. Mason v. Smithkline Beecham Clinical Labs., 146

F. Supp. 2d 1355, 1359 (S.D. Fla. 2001); see also, e.g., Microspherix LLC v. Biocompatibles,

Inc., No. 9:11-cv-80813, 2012 WL 243764, at *2 (S.D. Fla. Jan. 25, 2012).

IV. ARGUMENT A. Ms. Kinsmans Choice of Forum Is Entitled to Considerable Deference

Ms. Kinsmans choice of forum is not merely one consideration among many to be

weighed in the scales; it is the single most important factor that must be given considerable

deference. See, e.g., Ricoh, 870 F.2d at 573 ([F]ederal courts traditionally have accorded a

plaintiffs choice of forum considerable deference.).6 This is especially true where, as here,

5 See also, e.g., Emprs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167 n.13 (10th Cir. 2010) [W]e honor the plaintiffs choice of forum unless the balance in the defendants favor is shown by clear and convincing evidence. (quotations omitted); N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 113-14 (2nd Cir. 2010) ([T]he propriety of [the clear and convincing evidence] standard to transfer-motions is evident.); Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 695 (S.D.N.Y. 2009) (The burden rests on the moving party to make a clear and convincing showing that transfer under Section 1404(a) is proper.) (citations omitted). 6 See also Sterling, 519 F. Supp. 2d at 1204 (In determining the propriety of transfer, the court must give considerable weight to the plaintiffs choice of forum.) (quotations and citations omitted); Mason, 146 F. Supp. 2d at 1360-61 (affording plaintiffs choice of forum considerable deference despite the fact that underlying


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Ms. Kinsmans suit is in her home district (which is also the district in which Defendant now

resides). See, e.g., Mason, 146 F. Supp. 2d at 1361 ([A] plaintiffs choice of forum must be

afforded considerable deference, where, as here, the plaintiff has elected to bring suit in the

district in which [s]he resides).

Affording considerable deference to Ms. Kinsmans choice of venue takes on special

significance in the circumstances of this case. Ms. Kinsman chose to bring suit in Orlando to

minimize the risk of community bias and for her safety. In contrast to Orlando, one in three

individuals in Tallahassee either works for or attends FSU, (Ex. 3, Whitbourne Decl., 14),

and the Tallahassee Division of the Northern District has an objectively demonstrable

allegiance to FSU football and its Heisman trophy-winning quarterback.7 When Ms.

Kinsmans accusations of rape against Defendant exploded in the national media in

November 2013, she was quickly outed on the Internet and became subject to relentless

threats and vitriol.8 Within a day, she was forced to flee. When Ms. Kinsman returned to

Tallahassee more than a year later to attend an FSU code of conduct hearing, she locked

herself in her hotel room. (Ex. 1, Kinsman Decl., 6) (I do not feel safe in Tallahassee. The

last time I was there was for a student code of conduct hearing that Florida State University

cause of action did not occur in chosen forum); Oller, 1994 WL 143017, at *2 ([U]nless the balance of convenience and interest of justice strongly favor the defendant, the plaintiffs choice of forum will rarely be disturbed.); cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (concluding in the related context of forum non conveniens that [t]he plaintiff's choice of forum should rarely be disturbed.). 7 See, e.g., (Ex. 3, Whitbourne Decl., 12) (citing data indicating that 65% of individuals within the Tallahassee area are fans of FSU football fan versus only 14%-16% in the Orlando area); see also (Ex. 2, Williams Decl., sub-ex B) (survey results demonstrating that 63% of registered voters i.e., potential jurors in the Tallahassee Division of the Northern District identify themselves as FSU football fans and 55% agree that Jameis Winston has brought credit to FSU). 8 Nearly every major news story about the Winston accusations has spawned new rounds of social media attacks against Ms. Kinsman by FSU football partisans. See, e.g., (Ex. 4, Kerr Decl.) (attaching representative posts, Tweets and emails by FSU football fans attacking, questioning and threatening Ms. Kinsman).


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conducted in December 2014. Apart from my attendance at that hearing, I did not leave my

hotel room; I locked myself in and ate all of my meals there.).

As a matter of fairness and justice, it would be inequitable to afford Ms. Kinsmans

choice of forum less than considerable deference. Defendant is alleged to have engaged in

intentional tortious conduct. He should not be permitted to turn the geographical

happenstance of where Ms. Kinsman was raped into the keystone of a 1404(a) transfer

request. Cf. Dale v. United States, 846 F. Supp. 2d 1256, 1258 (M.D. Fla. 2012) (denying

motion to transfer and concluding, in part, that it would be inequitable to force plaintiff to

litigate his claims in forum in which he lacked a voluntary connection). On the contrary, it is

perfectly reasonably for Defendant to be called to account for his tortious conduct in a venue

of Ms. Kinsmans choosing, especially where that venue is Defendants home district. To

treat Ms. Kinsmans choice of forum otherwise would effectively permit Defendant to profit

from his own wrong.

Lastly, none of Defendants arguments in support of his motion affects the

considerable deference that must be afforded Ms. Kinsmans choice of forum. First, while

Ms. Kinsmans tort claims may have arisen in the Northern District, her injuries remain

ongoing. It is therefore inaccurate to state that all of the operative facts in this case

occurred in the Northern District or that [n]one occurred in the Middle District. (Doc. 8 at

19). Mason, 146 F. Supp. 2d at 1361 ([I]t would be inaccurate to state that none of the

operative facts in this case occurred within the forum chosen by Plaintiffs. Rather, because

Plaintiffs injuries are ongoing, some operative facts on the damages element are located, and

continue to materialize, in Plaintiffs residence.). Second, Defendant is also mistaken in his


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contention that Ms. Kinsman relocated to the Middle District. (Doc. 8 at 20). Ms.

Kinsman has at all material times since before and after she was raped on December 7,

2012 resided in the Middle District. (Ex. 1, Kinsman Decl., 3). And even if her departure

from FSU as an undergraduate student somehow amounted to a relocation, as previously

noted, Ms. Kinsman left Tallahassee because she reported Defendants conduct. Third, that

Ms. Kinsman may live closer to Tampa than to Orlando is of no moment. Defendant is not

requesting an intradistrict transfer within the Middle District, but a transfer to the Northern

District (and as between here and the Northern District, there can be no serious dispute that

Ms. Kinsman and Defendant both live in the Middle District). And fourth, Defendant

blatantly overstates his case in asserting that Ms. Kinsmans choice of forum should be given

little deference because all of the other 1404(a) factors favor transfer. (Doc. 8 at 20). As

discussed further below, Defendant failed to support his motion with competent evidence,

and few if any of the other 1404(a) factors clearly favor transfer.

B. Defendant Has Failed to Show That Other Considerations Strongly Outweigh Ms. Kinsmans Choice of Forum

Defendant has failed to show by clear and convincing evidence that other

considerations strongly outweigh the considerable deference afforded Ms. Kinsmans choice

of forum. See e.g., Robinson, 74 F.3d at 260; In re Ricoh Corp., 870 F.2d at 573; J.I. Kislak

Mortg. Corp., 604 F. Supp. at 348. On the contrary, in seeking transfer to the Northern

District, Defendants unsubstantiated motion merely attempts to capitalize on loci delicti and

shift the unavoidable inconvenience of litigation from himself to Ms. Kinsman. But the test


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is not whether transfer would be more convenient for the defendant.9 The Court must instead

balance the convenience of both parties and their witnesses, Manuel, 430 F.3d at 1135 n.1,

while exercising its discretion where it can appropriately weigh each factor based on a

showing made with particularity. Mason, 146 F. Supp. 2d at 1359; see also, e.g., In re

Apple Inc., 743 F.3d 1377, 1379 (Fed. Cir. 2014) (affirming denial of transfer where

movants vague assertions made weighing factors speculative). In this case, Defendant has

made no such showing and, even if he had, most if not all of the remaining Manuel factors

weigh against transfer and call for retaining this case in Orlando.

1. The Convenience of Non-Party Witnesses Does Not Favor Transfer

In considering the convenience of non-party witnesses, courts have routinely

recognized that it is not so much the convenience of the witnesses but the possibility of

having their testimony at the trial that is important. See Trinity Christian Ctr. of Santa Ana,

Inc. v. New Frontier Media, Inc., 761 F. Supp. 2d 1322, 1327 (M.D. Fla. 2010); see also

Dale, 846 F. Supp. 2d at 1257-58. As a result, a transfer motion should be denied when the

presence of witnesses, although located in another district, can otherwise be obtained at trial.

Cf. Mason, 146 F. Supp. 2d at 1361.

Likewise, a transfer motion should be denied where, as here, the movant does not

allege that any witnesses are actually unwilling to attend trial such that compulsory process

would be necessary. See, e.g., id. at 1362 (citations omitted). Ultimately, the most important

consideration is whether the witnesses will be available at trial; not how far they might have

9 And even if the test were, rather than being a matter of convenience, Defendants motion seems to be motivated more by his desire to simply obtain a jury pool drawn from Doak Campbell Stadium.


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to travel to reach the courthouse. Id. Moreover, motions to transfer do not turn on which

party can present a longer list of possible witnesses located in the respective districts in

which each party would like to try the case. Id. Rather, the movant must support its

motion by clearly specifying the key witnesses to be called and particularly stating the

significance of their testimony. Id. (emphasis added); J.I. Kislak Mortg. Corp., 604 F.

Supp. at 348. As a result, the Court cannot, as Defendant would appear to suggest, merely

tally the number of witnesses in the Northern District and then compare that number to the

number of witnesses in the Middle District of Florida. See, e.g., Microspherix LLC, 2012

WL 243764, at *3 (citations and quotations omitted). Instead, the Court must qualitatively

evaluate the materiality of each witnesses actual knowledge relative to the dispute at hand.

Id.

Here, Defendants witness list purportedly includes thirty-eight individuals he asserts

will have the greatest impact on the case, (Doc. 8 at 5 n.3), nearly all of whom supposedly

live in the Northern District. (Doc. 8-8). However, seventeen of those individuals (i) are not

even identified by name but denoted only as groups, categories or entities such as

Potbellys Employees, Witnesses at and outside of Potbellys, FSU fellow students that

Plaintiff contacted. . ., Tallahassee Police Department or State Attorneys Office or

(ii) are clearly cumulative and duplicative of other individuals (such as Other hospital

personnel, Other police personnel, Other State Attorney Personnel). Compare (Id.)

with (Ex. 5, Plaintiffs notations to Defendants list of non-party witnesses). Of the

remaining twenty-one (21) specifically-identified and non-cumulative witnesses on

Defendants list:


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x Only nine (9) actually reside within the Northern District or within 100 miles of the Northern District and may potentially be unwilling to attend trial;10

x Eight (8) either reside within the Middle District or have provided sworn declarations to Ms. Kinsman proclaiming that they are willing to testify and attend trial in Orlando;

x Two (2) are completely unknown (a taxicab driver whom law enforcement

could not locate and an unnamed security guard at the Legacy Suites apartment building); and

x Two (2) do not even reside in the State of Florida (Ronald Darby and

Christopher Casher).11

Moreover, Defendants description of these individuals anticipated testimony is

broad and non-particularized, consisting of simply Events of Dec. 6-7, 2012,

Investigation or Toxicology. (Doc. 8-8). None of those conclusory descriptions lend

support to the notion that the individuals on Defendants list are crucial trial witnesses whose

live testimony at trial is necessary. See, e.g., Mason, 146 F. Supp. 2d at 1362 (movant must

support its motion by . . . particularly stating the significance of their [key witnesses]

testimony.) (emphasis added). Indeed, Defendant fails to particularly identify the

significance of any witnesses testimony, preventing the Court from qualitatively evaluating

the materiality of their testimony. Furthermore, Defendant has not shown that there is any

witness who is unwilling to attend trial absent compulsory process. Such an omission is 10 Defendant did not attempt to determine or specify whether any of these nine (9) individuals let alone any of the witnesses on his list was unwilling to attend trial in Orlando. See (Ex. 5, Plaintiffs notations to Defendants list of non-party witnesses). 11 Contrary to Defendants representations that his two former teammates reside in Tallahassee, Mr. Darby was recently drafted by the Buffalo Bills and either resides in New York or continues to reside in his home state of Maryland, and Mr. Casher appears to reside in Alabama. See (Ex. 6, Skip-Trace reports). While Mr. Casher may for the time being be a student at FSU (it is unclear whether he will still be a student at the time this case goes to trial), for purposes of Rule 45, he resides in Alabama. See, e.g., In re Application of Yukos Hydrocarbons Invs. Ltd., No. 5:09-mc-78, 2009 WL 5216951, at *6 (N.D.N.Y. Dec. 30, 2009) (construing resides in Rule 45 as, inter alia, place to which individual has clear intent to return and maintain his residence with permanency).


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fatal, as courts routinely deny motions to transfer venue when a movant has not shown that

witnesses are unwilling. See, e.g., J.I. Kislak Mortg. Corp., 604 F. Supp. at 348 (denying

motion to transfer because movant did not identify anticipated testimony or show that

witnesses would be unwilling to attend). But even assuming that the nine (9) individuals on

Defendants list who may potentially be unwilling to attend trial are, in fact, unwilling to

voluntarily testify at trial, Defendant has further failed to show that their testimony would be

necessary, relevant and non-cumulative. Courts have denied motions to transfer for precisely

such a failure. See, e.g., Dale, 846 F. Supp. 2d at 1258.

In sum, Defendant has failed to carry his burden of identifying the anticipated

testimony of his non-party witnesses with particularity, or demonstrating that there are

individuals who unwilling to testify in the absence of a subpoena and that such individuals

are in any event necessary and indispensable. Moreover, Ms. Kinsmans notations to

Defendants list of non-party witnesses and collection of declarations from non-resident

witnesses makes plain that a transfer to the Northern District would at the very least not

be any more convenient for non-party witnesses than retaining this case in the Middle

District. (Exs. 5 & 7). Having failed to make a clear and convincing showing on the factor

he contends is the single most important factor in this case, (Doc. 8 at 11), Defendants

motion should be denied.

2. The Location of Documents and Tangible Evidence Does Not Support Transfer

The location of documents and tangible evidence in this case does not support

transfer. First, notwithstanding Defendants contentions to the contrary, it is well established

that in a world with . . . email, overnight shipping and mobile phones that can scan and


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send documents, the physical location of documents is irrelevant. Microspherix, 2012 WL

243764 at *3; see also, e.g., Trinity Christian Ctr.,761 F. Supp. 2d at 1327 ([t]echnological

advancements in electronic document imaging . . . reduce the significance of the location of

sources of documentary proof.); Perfect Web Technologies, Inc. v. Infousa, Inc., No. 07-cv-

80286, 2007 WL 2757356, at *4 (S.D. Fla. Sept. 20, 2007) (suggesting that the location of

documents outside of a chosen forum does not provide much, if any, support for transfer and

further citing Coker v. Bank of Am., 984 F.Supp. 757, 766 (S.D.N.Y.1997) for the proposition

that copy machines, fax machines and FedEx render location of documents a non-factor.).

Indeed, many if not all of the documents Defendant sweepingly identifies such as hearing

transcripts, investigative reports, witness statements, correspondence, text messages, twitter

posts, toxicology reports and medical examination reports, (Doc. 8 at 12) were either

originally created in or are now stored in easily and near instantaneously-transferrable

electronic format. In fact, as Defendants own CM/ECF filings with the Court reveal,

Defendant already appears to be in possession of many of these documents.12 See, e.g., (Doc.

8-3) (citing portions of record, transcripts, exhibits and other materials from code of conduct

hearing). The idea that it would be cumbersome or inefficient to transfer [such

electronically stored information] back electronically to this district begins to approach

absurd. Holliday v. Lifestyle Lift, Inc., No. 09-cv-4995, 2010 WL 3910143, at *8 (N.D. Cal.

Oct. 5, 2010).

12 As does the world at large. See, e.g., Memorandum from Jason Newlin to State Attorney William Meggs regarding Jameis Winston investigation (Dec. 5, 2013), available at http://espn.go.com/pdf/2013/1206/winston-inv1.pdf (last visited May 22, 2015) (248-page memorandum detailing FSU, TPD and State Attorney investigations and attaching witness summaries, reports, correspondence, text messages, twitter posts, toxicology reports and medical examination reports).


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Second, with respect to tangible evidence, Defendant fails to demonstrate that (i)

declining transfer would make collection and production of such evidence any more burdensome

or cause any such evidence to be lost, or (ii) that transfer to the Northern District would make the

collection and production of such evidence any less burdensome or costly. See Mason, 146 F.

Supp. 2d at 1363-64. Nor does he explain why or how specific tangible evidence is supposedly

critical to Mr. Winstons effective defense. (Doc. 8 at 12). In any event, as with the

documents that are already in his possession, it appears that Defendant already possesses or at

least has access to some of the tangible evidence he identifies or, alternatively, that such evidence

may in fact not even be relevant. See, e.g., (Doc. 8-7, ESPN article dated Dec. 5, 2013)

(indicating that DNA matched Defendants).13

Accordingly, Defendant has failed to make a clear and convincing showing that the

location of documents and tangible evidence in his case supports transfer, and

Ms. Kinsmans choice of forum will have no effect on where documents and tangible

evidence are reviewed or on how far Defendants counsel may have to travel.14

3. The Convenience of the Parties Weights Against Transfer

Defendants motion does not directly address the convenience of the parties, but

instead simply rehashes its attacks on Ms. Kinsmans choice of forum without articulating

13 Defendant also appears to suggest that the physical location where relevant events occurred could be relevant. (Doc. 8 at 12). Such a suggestion should be rejected. Mason, 146 F. Supp. 2d at 1363-64 ([T]he Court is not convinced that a view of [the] premises is needed, even if it were made possible by transfer. . . . Also, even if site inspection is relevant, it can be achieved through video, photographs, and drawings.). 14 In passing, Ms. Kinsman notes that most of Defendants counsel are located in the Middle District specifically, Jacksonville which is closer to Orlando than it is to Tallahassee. Compare Google Maps, https://goo.gl/maps/wZO2X (141 highway miles and approximately 125 geodesic miles between Orlando and Jacksonville) with https://goo.gl/maps/0IOMh (165 highway miles and approximately 159 geodesic miles between Jacksonville and Tallahassee).


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why a trial in Tallahassee would supposedly be more convenient for the parties. See

(Doc. 8 at 14). The Middle District is home to both Ms. Kinsman and Defendant, making it

equally convenient for the parties. In contrast, a transfer to Tallahassee would simply put the

trial further away from both parties. As noted below, while Defendant would be better able

to absorb that increased inconvenience, in circumstances where there is a disparity in the

financial means of the parties, a transfer that imposes an inconvenience on a plaintiff of

lesser means [c]uts in favor of Plaintiffs chosen forum. Dale, 846 F. Supp. 2d at 1258.

The convenience-of-the-parties factor therefore weighs against transfer.

4. The Locus of Operative Facts Does Not Strongly Favor Transfer

Defendants arguments regarding the locus of operative facts have little to no

evidentiary or legal support, and he has failed to make a clear and convincing showing that

this factor strongly favors transfer.

First, it is simply not true that [a]ll of the critical events in this case or [a]ll of the

events described in Plaintiffs Complaint occurred in the Northern District. (Doc. 8 at

15). As previously noted, Ms. Kinsmans injuries are ongoing; the operative facts on her

damages are therefore located in and continue to materialize in the Middle District. Mason,

146 F. Supp. 2d at 1361 ([I]t would be inaccurate to state that none of the operative facts in

this case occurred within the forum chosen by Plaintiffs. Rather, because Plaintiffs injuries

are ongoing, some operative facts on the damages element are located, and continue to

materialize, in Plaintiffs residence.).


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Second, Defendant has not requested that this case be transferred to the Tampa

Division.15 Local Rule 1.02(c) and Bennett Engg Grp., Inc. v. Ashe Indus., Inc., No. 6:10-

cv-1697, 2011 WL 836988, at *1 (M.D. Fla. Mar. 8, 2011) a case in which the defendants

actually requested an intradistrict transfer are therefore inapposite and have no bearing on

whether this case should be transferred under 28 U.S.C. 1404(a) to the Tallahassee

Division of the Northern District.16

Third, Defendants assertion that Ms. Kinsmans 12-page complaint in the instant

case against Defendant and her 35-page complaint in the Title IX case against FSU rely on

the same transaction or that Ms. Kinsman has pled substantially similar facts to support her

claims in both cases is demonstrably false. Compare (Doc. 2) with Kinsman v. The Fla.

State Univ. Bd. of Trustees, Case No. 6:15-cv-16 (M.D. Fla. Mar. 9, 2015) (Doc. 1). As

previously noted, these two cases are far from inextricably intertwined. FSUs and

Defendants liability are completely independent of one another and there is very little

factual overlap or common issues between them.

Fourth, this Court did not [e]ssentially decide the transfer issue in this case when

transferred [sic] the FSU Case to the Northern District, nor has it [a]lready determined that

the Northern District is the appropriate venue for a lawsuit based on the events pleaded

Plaintiffs [sic] Complaint. (Doc. 15-16). The preface to Judge Presnells April 27, 2015 15 If he had, Ms. Kinsman fears she would become subject to the same sort of community bias and hostility from Buccaneers fans in the Tampa Bay area that she has experienced to date from Seminole fans in Tallahassee. Amongst some of the other reasons already discussed, that is another reason why Ms. Kinsman sought out Orlando as a neutral forum in which to bring suit. 16 Defendants reliance on Local Rule 1.02(c) is further misplaced because the text of that rule plainly concerns the division in which civil proceedings shall be instituted. . . . Ms. Kinsman did not institute or otherwise commence this case in the Middle District she originally brought suit in state court. To the extent Local Rule 1.02(c) nevertheless applies to removed cases, it was Defendant not Ms. Kinsman who instituted this proceeding in federal court. See (Doc. 1).


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Order clearly states that, [b]y way of the instant motion, the Board argues that venue is

improper here and seeks to have the case transferred to the Northern District of Florida. The

Fla. State Univ. Bd. of Trustees, Case No. 6:15-cv-16 (M.D. Fla. Apr. 27, 2015) (Doc. 50 at

2). Moreover: [T]he Court concludes that the Board is not subject to personal jurisdiction

in the Middle District of Florida . . . and therefore venue is not proper here. Pursuant to 28

U.S.C. 1406(a), this case will be transferred. Id. (Doc. 50 at 9-10) (footnoted omitted)

(emphasis added). Defendants motion to transfer arises under 1404(a) and has nothing to

do with the propriety of venue. Having elected to remove this case from state court,

Defendant does not have the ability to challenge venue in this Court because, as a matter of

law, venue upon removal necessarily became fixed in this Court. Hollis, 259 F.3d at 1300.

Accordingly, Defendants assertion that the Court already decided the transfer issues in this

case misstates the Courts April 27, 2015 Order.

Lastly, even if the locus of operative facts could be shown to support a transfer, in the

circumstances of this case, it would be inequitable to attach much significance to this factor.

To do otherwise would permit Defendant to capitalize on his own misconduct.

5. The Availability of Process to Compel the Attendance of Unwilling Witnesses Weighs Against Transfer

As discussed above, Defendant has failed to show that a single witness is unwilling to

attend trial in this Court absent compulsory process. Such an omission is fatal. See, e.g., J.I.

Kislak Mortg. Corp., 604 F. Supp. at 348 (denying motion to transfer, in part, because

movant did not show that any witnesses would be unwilling to attend). Even if Defendant

had made such a showing, his assertion that [t]he the process to compel witness

attendance exists only in the Tallahassee Division is mistaken. (Doc. 8 at 16). Clearly,


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parties before this Court have access to the same process to compel witnesses under Rule 45

as do parties in the Northern District of Florida. The issue, of course, is the extent of the

Courts 100-mile reach and the importance of unwilling witnesses who may or may not come

within its expanse.17 By failing to particularly identify the significance of any witnesses

anticipated testimony and whether they are unwilling to testify, Defendant has precluded the

Court from addressing that issue.

Furthermore, one of the handful of witnesses whom Defendant specifically identifies

as being key to his case Dr. Bruce Goldberger, a forensic pathologist at the University of

Florida, who may or may not be willing be testify, (Doc. 8 at 6) does not come within the

100-mile reach of the Northern Districts Tallahassee Division but is within the 100-mile

reach of this Court. See (Clune Decl., 15).

6. The Relative Means of the Parties Weighs Against Transfer

The relative means of the parties also weighs against transfer. Ms. Kinsman is an

undergraduate student who lives with her family, (Ex. 1, Kinsman Decl., 3-4); she is not

employed and has limited savings to bear the cost of travel, lodging and other expenses that

she would necessarily incur if her case were transferred to Tallahassee. (Id., 4-5).

Defendant, on the other hand, recently received a $16.69 million signing bonus as part of a

four-year NFL contract totaling $25.35 million with the Tampa Bay Buccaneers. See, e.g.,

Big Bucks for New Buc, Tampa Bay Times, May 2, 2015, at 1A, available at 2015 WLNR

17 Defendant is mistaken, however, in his assertion that [t]his Court cannot compel the attendance of any nonparty witnesses who live or work more than 100 miles from Orlando. (Doc. 8 at 16) (emphasis added). While the 100-mile limit may be the initial source and limit on the Courts authority, Rule 45 also grants the Court the authority to compel the attendance at trial of any nonparty witness within the entire state in which the witness resides, is employed or regularly transacts business if the witness would not incur substantial expense. FED. R. CIV. P. 45(c)(1)(B)(ii).


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12996012. Clearly, Defendant is better able to bear the costs attendant to whatever

inconvenience he may have in Ms. Kinsmans choice of forum than would she if this case

was transferred to the Northern District.

In addition, Defendant failed to present any evidence on this factor and, as one of his

own cases makes plain, when a party seeking transfer does not present evidence as to the

relative means of the parties, this factor weighs against transfer. (Doc. 8 at 18) (citing

Cableview Commcns of Jacksonville, Inc. v. Time Warner Cable Se. LLC, No. 3:13-cv-306,

2014 WL 1268584, at *25 (M.D. Fla. Mar. 27, 2014) (As [movant] presented no evidence

as to the relative means of the parties, this factor does not favor transfer.)). Similarly,

Defendant also failed to show with particularity how transfer would reduce costs. See, e.g.,

Perlman v. Delisfort-Theodule, 451 F. Appx 846, 848 (11th Cir. 2012) (unpublished)

(affirming denial of motion to transfer venue where movant failed to, inter alia, show how

transferring venue would reduce costs). Accordingly, the relative means of the parties weighs

against transfer.

7. Familiarity with Governing Law Does Not Favor Transfer

Defendant concedes that the Middle and Northern District are equally familiar with

the law governing Ms. Kinsmans claims. (Doc. 8 at 19). Accordingly, this factor does not

favor transfer. Watson v. Cmty. Educ. Centers, Inc., No. 2:10-cv-778, 2011 WL 3516150, at

*5 (M.D. Fla. Aug. 11, 2011) (Due to the presumption favoring a plaintiffs choice of

venue, when analysis of any particular factor results in a neutral outcome, that factor does

not favor transfer.).


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8. Trial Efficiency Does Not Favor Transfer

As the Court well knows, despite its size and relative caseload, the Middle District

has historically been ranked as one of the most efficient district courts in the nation. While

Defendant provides a recent snapshot from the Administrative Offices Court Management

Statistics, the 12-month Case Load Statistics and six-month CJRA reports paint a slightly

different picture. See, e.g., (Ex. 8, U.S. District Courts Median Time Intervals at 3)

(showing, inter alia, a median time interval from filing to disposition by trial in civil cases of

21.4 months in the Middle District versus 24.5 months in the Northern District). But even on

Defendants statistics, with a median time from filing to disposition in civil cases of only 7.6

months (versus 7.4 months in the Northern District), there is no appreciable difference in

efficiency between Ms. Kinsmans choice of forum and the Northern District.

Nor is there any efficiency to be gained by consolidating Ms. Kinsmans tort claims

with the Title IX case in Tallahassee. This case not only involves separate parties but, as

previously discussed, entirely separate causes of action with limited factual overlap and no

common issues of liability. Furthermore, the Northern District recently denied FSUs motion

to stay discovery in the Title IX case, notwithstanding its suggestion that Defendants

intention to seek transfer and consolidation could result in duplicative discovery.18 In

circumstances such as these, Defendant should not be rewarded with a change in venue

simply because Ms. Kinsman has a pending case in the Northern District. Cf. Carrizosa v.

Chiquita Brands Int'l, Inc., No. 07-60821-CIV, 2007 WL 3458987, at *4 (S.D. Fla. Nov. 14,

18 See (Ex. 9, May 8, 2015 Hearing Tr. at 8, 11). The Northern District also recognized that, if Defendant was successful in seeking transfer, his request for consolidation could be a fly in the ointment that might require an extension of the deadlines in its Scheduling & Mediation Order. (Id. at 12).


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2007) (denying transfer predicated, in part, on supposedly similar action pending in

transferee court notwithstanding potential efficiency gains).

9. The Interests of Justice Strongly Weigh Against Transfer

The interests of justice in this case include Ms. Kinsmans right to avoid the risk of

receiving an unfair jury trial, cf. Los Angeles Meml Coliseum Commn v. Natl Football

League, 89 F.R.D. 497, 502 (C.D. Cal. 1981), and weigh strongly against transfer. Ms.

Kinsmans decision to bring suit in a neutral forum was not the product of conjecture or

speculation, but a decision supported by objective evidence19 demonstrating that the majority

of potential jurors in the Tallahassee Division of the Northern District have already made up

their minds on the central issue in this case, specifically: 67% of those with opinions believe

Defendant did not rape Ms. Kinsman and 93% of those individuals are either completely

certain or pretty certain about their opinions. (Ex. 2, Williams Decl., sub-ex B). Taken in

conjunction with the clear allegiance that Tallahassee has to FSU football and to its Heisman

trophy-winning quarterback, along with risk of implicit or subconscious bias, (Ex. 3,

Whitbourne Decl., at 20), these statistics strongly favor denying Defendants motion and

retaining this case in Orlando.

V. CONCLUSION

Defendant has failed to show by clear and convincing evidence that any other factors

strongly outweigh the considerable deference afforded Ms. Kinsmans choice of forum.

Accordingly, the Court should deny Defendants motion to transfer.

19 While concerns of bias cannot be sustained by conjecture, in the context of motions to transfer, district courts have considered objective evidence such as opinion polls. See, e.g., N. Ind. Pub. Serv. Co. v. Envirotech Corp., 566 F. Supp. 362, 366 (N.D. Ind. 1983) (This Court will consider . . . the results of an opinion poll of prospective veniremen conducted by a public opinion research company.).


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on May 26, 2015, I electronically filed the foregoing

with the Clerk of the Court by using the CM/ECF system, which will send a notice of

electronic filing to all counsel of record.

Respectfully submitted,

/s/ David B. King David B. King Florida Bar No.: 0093426 Thomas A. Zehnder Florida Bar No.: 0063274 Taylor F. Ford Florida Bar No.: 0041008 KING, BLACKWELL, ZEHNDER & WERMUTH, P.A. P.O. Box 1631 Orlando, FL 32802-1631 Telephone: (407) 422-2472 Facsimile: (407) 648-0161 Email: [email protected] Email: [email protected] Email: [email protected]

Baine Kerr (Colorado Bar No.: 9797)* John Clune (Colorado Bar No.: 27684)* Lauren E. Groth (Colorado Bar No.: 47413)* HUTCHINSON BLACK AND COOK, LLC 921 Walnut Street, Suite 200 Boulder, CO 80302 Telephone: (303) 442-6514 Facsimile: (303) 442-6593 Email: [email protected] Email: [email protected] Email: [email protected]

*(Motions to appear pro hac vice pending)

Counsel for Plaintiff


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EXHIBIT INDEX TO DECLARATION OF JOHN CLUNE IN SUPPORT OF PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS MOTION TO

TRANSFER VENUE Exhibit Description Exhibit 1 Declaration of Erica Kinsman Exhibit 2 Declaration of James L. Williams, Jr.

(Polling Analyst at Public Policy Polling, LLC)

Ex. A Current Firm Information & Additional Background Regarding PPP

Ex. B Survey of Registered Voters in Tallahassee Division of the Northern District of Florida conducted March 5, 2015 March 8, 2015

Exhibit 3 Declaration of Susan K. Whitbourne, PH.D. (Doctor of Psychological and Brain Sciences) Exhibit 4 Declaration of Baine Kerr, Esq.

Collection of Internet Posts, Tweets, and Emails from FSU Fans Based in Tallahassee

Exhibit 5 Plaintiffs Notations to Defendants List of Non-Party Witnesses Exhibit 6 Skip-Trace Reports for Christopher Casher & Ronald Darby Exhibit 7 Declarations of Certain Non-Party Witnesses

Marcus Jordan

Monique Kessler

Jenna Weisberg

Angela Chatfield Exhibit 8 Administrative Office of the U.S. Courts Case Load Statistics For 12-

Month Period Ending March 31, 2014 (Table C-5) and

Excerpts from 6-Month CJRA Report dated September 30, 2014 Exhibit 9 Transcript of May 8, 2015 Hearing in Title IX Case
