plaintiff’s response in opposition to defendant’s motion for leave to file reply in support of...

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 FOR LEAVE TO FILE REPLY IN SUPPORT OF MOTION TO

TRANSFER VENUE (DOC. 26)

Plaintiff Erica Kinsman (Ms. Kinsman) respectfully requests that the Court deny or,

in the alternative, deny in significant part, the Motion for Leave To File A Reply In Support

of Defendants Motion to Transfer Venue [hereinafter, simply the Motion for Leave]

(Doc. 26) filed by Defendant Jameis Winston (Defendant), and states:

Ms. Kinsman generally defers to the Courts sound discretion and need if any for

additional briefing in regard to Defendants motion to transfer. (Doc. 8). However, she

would make five (5) brief counterpoints in response to Defendants Motion for Leave:

1. Defendants apparent surprise at being confronted with supposedly new

materials and factual assertions is not accurate and runs contrary to statements and citations

made in his motion to transfer. Before seeking transfer, Defendant was well aware of the

materials that Ms. Kinsman previously filed with the Court in opposing FSUs motion to

transfer in the Title IX case Kinsman v. The Fla. State Univ. Bd. of Trustees, Case No.

6:15-cv-16 (M.D. Fla.) (Docs. 37-1 to 37-4) including, in particular, the declaration of

James L. Williams, Jr. and accompanying poll on the potential jury pool in the Tallahassee

Division of the Northern District, as well as the prior expert report of Susan K. Whitbourne

Case 6:15-cv-00696-ACC-GJK Document 27 Filed 05/31/15 Page 1 of 4 PageID 553

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and declaration of John Clune.1 Inasmuch as Defendant already had access to and

anticipated the use of these and similar materials before filing his motion to transfer, he

should not be permitted to address them again in a reply after giving them short-shrift in his

original motion.

2. As well-established case law makes plain (including cases cited in

Defendants motion to transfer), it was Defendants burden in his initial motion to

marshal whatever evidence he had in support of transfer, including, in particular, evidence

that adequately identified non-party witnesses and described the relevance of their

testimony.2 Confronted with Ms. Kinsmans response and notations to Defendants own 38-

entry exhibit highlighting his failures to meet this burden, it would be improper to permit

Defendant a redo by way of a reply since it was Defendant who elected to file his motion

without supporting evidence and adequate witness information.

3. There is nothing new about Ms. Kinsmans arguments regarding the

supposed relationship between this case and the Title IX case against FSU. The first

opportunity indeed, necessity she had to raise those arguments was, of course, in response

1 In fact, with respect to the poll, in arguing that the relative means of the parties was supposedly irrelevant to the transfer question in his case, (Doc. 8 at 17), Defendant specifically cited Ms. Kinsmans retention of a costly polling firm in his motion to transfer. (Id. at 18). Consistent with his obligation to ensure that the factual representations made in his motion had evidentiary support, Defendant surely never would have made such a representation without having read the declaration of James L. Williams, Jr. which included and described the cost of the poll as filed in the Title IX case and accessible via PACER/CM-ECF. See (Doc. 8-9). Indeed, as evidenced by Defendants refiling of an entire exhibit to Ms. Kinsmans prior opposition to FSUs transfer request, see (Doc. 8-9) (Declaration of John Clune dated Mar. 9, 2015, which was previously filed as Doc. 37-2 in Case No. 6:15-cv-16), there can be no question that Defendant reviewed the materials filed in the Title IX case including, in particular, the poll, prior expert report of Susan K. Whitbourne and prior declaration of John Clune before preparing and filing his motion to transfer in the instant case. 2 See, e.g., (Doc. 8 at 13) (citing, inter alia, Sessions v. Atl. Recording Corp., Case No. 6:10-cv-1568, 2011 WL 3754601, (M.D. Fla. Aug. 11, 2011) and quoting Trinity Christian Ctr. of Santa Ana, Inc. v. New Frontier Media, Inc., 761 F. Supp. 2d 1322 (M.D. Fla. 2010)); see also, e.g., Mason v. Smithkline Beecham Clinical Labs., 146 F. Supp. 2d 1355, 1362 (S.D. Fla. 2001).


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to Defendants contentions that this case should be transferred. See, e.g., (Doc. 8 at 9, 21)

(using supposed relationship between cases as basis for transfer). Furthermore, since

Ms. Kinsman filed the entire 20-page transcript from the May 8, 2015 hearing in the Title IX

case, see (Doc. 24-9), the Court is perfectly competent to review that short transcript on its

own without the need for additional argument from Defendant.

4. Defendants request for a twelve-page reply which may or may not also be

accompanied by affidavits, declarations and exhibits (Defendant does not say) is excessive.

To the extent the Court is at all willing to entertain a reply, it should be limited to a more

reasonable length, not be based on or include any affidavits, declarations or exhibits, and be

focused on specifically identified issues of law (not simply on Defendants vague and

ambiguous suggestion that he should be permitted to address [m]any misstatements of

relevant law. . . , (Doc. 26 at 2)).3

5. Lastly, granting Defendants Motion for Leave would alter the typical order of

motion practice in this Court and deprive the non-movant of her privilege of ordinarily

having the last word. Accordingly, to the extent the Court may at all be inclined to permit a

reply, Ms. Kinsman should be entitled to file a brief surreply.

In light of the foregoing, unless the Court has a need for additional briefing, it should

enter an order denying Defendants Motion for Leave or, in the alternative, limiting the

length and focus of any reply and granting Ms. Kinsman leave to file a brief surreply.

Dated: May 31, 2015. 3 While Ms. Kinsmans counsel indicated during the parties Local Rule 3.01(g) conferral that she did not generally oppose a brief reply, Defendant has insisted on twelve (12) pages, which Ms. Kinsman opposes. In addition, having now seen the entirety of Defendants request and his description of issues to be addressed (or lack thereof), except to the extent that the Court itself desires additional briefing, Ms. Kinsman opposes Defendants Motion for Leave in full.


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on May 31, 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]

Counsel for Plaintiff Erica Kinsman


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