Case 6:15-cv-00696-ACC-GJK Document 30 Filed 06/09/15 Page 1 of 13 PageID 580

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ERICA KINSMAN,
Plaintiff,
v.
JAMEIS WINSTON,
Defendants.

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Case No.: 6:15-cv-696-Orl-22GJK

DEFENDANTS REPLY IN SUPPORT OF MOTION TO TRANSFER VENUE

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Mr. Winston has shown that the balance of convenience overwhelmingly favors
transfer of this case to the Tallahassee Division of the Northern District of Florida.
1.

Nearly all of the key witnesses are in Tallahassee.

Plaintiff tries to disqualify Mr. Winstons entire list of relevant witnesses. First, she
states that the list does not identify each witness testimony with sufficient particularity.
Dkt. 23 at 8-11, 17-18. However, Plaintiff conveniently ignores the lists 44 fact citations,
repeated in the Motion, which illustrate this exact anticipated testimony. See Dkt. 8 at 4-6;
Dkt. 8-8. More importantly, her criticism ignores that she has put most of these witnesses in
issue by relying on them in her Complaint and past briefing. See Dkt. 8 at 4-6.
Plaintiffs position also effectively requires that Mr. Winston provide a full proffer of
all witnesses testimony at this pre-discovery stage.1 But he need only list the relevant
witnesses and their location, along with a general statement of the topics of each witness
testimony. Sessions v. Atl. Rec. Corp., 2011 WL 3754601, at *4 (M.D. Fla. Aug. 11, 2011),
rpt. & recommn adopted, 2011 WL 3809774 (Aug. 25, 2011) (emphasis added); Oller v.
Ford Motor Co., 1994 WL 143017, at *3 (M.D. Fla. Mar. 30, 1994) (same). Mr. Winstons
witness list did exactly that. See Dkt. 8-8. In any event, although he need not do so, Mr.
Winston includes here a detailed summary of each witness known testimony. See Exh. 10.
Second, Plaintiff offers an exhibit presented as witness list notations. See Dkt. 245. In it, Plaintiff crosses out 17 witnesses without individual explanation, casting them all as
mere groups or clearly cumulative. However, she also crosses out many Tallahassee
individuals on whom her claims rely or who are damaging to her case. For example:
1

Plaintiff also relies on the application of a supposed clear and convincing standard. While Mr. Winston
disputes that that is the governing standard, he has met it by his overwhelming and particularized showing.

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Sarah Mirkin, who Plaintiff championed as a star witness in the FSU Conduct
Proceedings. See Dkt. 8-2 at 3, 12, 21 (Ms. Mirkin does an excellent job of
supporting Plaintiffs entire case; her testimony is entitled to special deference);
Her friend Oswaldo, who is critical to the issue of consent. Compare Dkt. 8-1,
Compl. at 6 36 (Plaintiff overcome by trauma and sobbing in the street) with
Dkt. 8-3 at 25-28 (simultaneously soliciting Oswaldos help to cheat on an exam).
Her friend Ashley and investigator Bukanc. See Dkt. 8-2 at 13, 18 (Bukanc); Dkt.
8-3 at 14-15 & n.5 (describing Plaintiffs repeated reliance on Ashley); Dkt. 81, Compl. at 4 19-21 (referring to Ashley without mentioning her by name).2
Third, Plaintiff deletes this lists column of detailed citations, further obscuring that
she has put these witnesses in issue. Compare id. Dkt. 24-5 with Dkt. 8-8.
Fourth, Plaintiff takes considerable liberties in recasting the location of witnesses:
The cab driver. Compare Dkt. 24-5 at 3 (changing location from Tallahassee to
Unknown) with Dkt. 8-1, Compl. at 4-5 23-26 (citing never-disclosed cab
driver statement, evincing that Plaintiff knows who and where he is).3
Nurse Walker. See Dkt. 24-5 at 2 & Dkt. 24 14(d) (Bainbridge, Ga. is 40 miles
from Tallahassee, where she works); Fed. R. Civ. P. 45(c)(1)(A) (subpoena power
is 100 miles of where the person resides [or] is employed) (emphasis added).
2

As for the groups that Plaintiff deletes, such as the Tallahassee Police Dept. (TPD), State Attorneys
office, and FSU Athletics, Plaintiff has put them in issue by her accusations against their named and unnamed
members. See Dkt. 8-1, Compl. 2-15 (TPD); Dkt. 8-4 (Plaintiffs witness list: [a]ny and all athletic
department personnel [who discussed matter] including but not limited to Monk Bonasorte); see also Exh. 14
7, 10 (Nelson affidavit (FSU Case), listing law enforcement members who investigated Plaintiffs claims).
3

Plaintiffs cross-outs of Ashley and the cab driver are especially troubling, given that she has revealed that
she has spoken with them and will rely on them, while concealing their identities from Mr. Winston. See Dkt.
8-3 at 14-15 & n.5 (noting repeated references to Ashley without divulging her identity); compare Dkt. 23 at
10 (describing cab driver as unknown and vanished) with Dkt. 8-1 23-26 (citing never-disclosed statement).

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Messrs. Casher, Darby, Roberts & Ms. Henry. See Dkt. 24 at 3-4 (locations
represented without personal knowledge).4
Finally, even if the Court accepted Plaintiffs version of the witness list (and it
should not), that list would still overwhelmingly favor transfer. See Dkt. 24-5 (Orlando
Division: zero witnesses; Tampa Division: three; neutral fora: four; unknown location:
two; Northern District: 12, 11 of which are in the Tallahassee Division).
2.

Plaintiff does not deny that all relevant evidence is in Tallahassee.

Plaintiff does not deny that all of the relevant evidence is in Tallahassee. Instead,
Plaintiff tries to minimize the import of the documentary evidencewhile failing to address
the contrary cases Mr. Winston cited on this point. See Dkt. 8 at 12-13 (citing cases).
Further, Plaintiff tries to brush past the wealth of physical evidence in Tallahassee,
stating that it appears that Defendant already possesses or at least has access to some of
[it]. Dkt. 23 at 13. But Plaintiff provides no support for this statement, nor does she contest
(1) that this evidence is in the exclusive custody of law enforcement in Tallahassee, or (2) the
import of chain of custody and risk of spoliation for this fragile forensic evidence. See id.;
Dkt. 8 at 12-13. Plaintiff also challenges the relevance of this evidence because some DNA
matched Defendants, Dkt. 23 at 13, but she dodges the wealth of forensic evidence that
speaks to the critical issue of consent. See Dkt. 8 at 12 (listing evidence).
4

In her attempt to disconnect Messrs. Casher and Darby from Tallahassee, Plaintiff offers documents that
actually show that both witnesses lived in Tallahassee at the time of filing. See Dkt. 24 at 2 9 (citing Dkt. 246); see also Exh. 12, Bio of Chris Casher, FSU Football Website, available at http://www.seminoles.com/
ViewArticle.dbml?DB_OEM_ID=32900&ATCLID=209573045.
As for Ms. Henry and Mr. Roberts,
Plaintiffs lawyers failure to gain any personal knowledge of their whereabouts (while going to great lengths to
do so for other supposedly favorable witnesses) belies the very likely fact that he knows that these witnesses
live outside the Middle District, and is trying to dodge that fact. See Dkt. 24 at 3 13 (stating their location to
the best of my knowledge and given no indication of basis for or extent of any possible knowledge); see also
Exh. 13, Bio of Jamal Roberts, Kent State Football Website, available at http://www.kentstatesports.com/
roster.aspx?path=football&rp_id=5320.

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3.

Plaintiff ignores Mr. Winstons convenience-of-parties arguments.

In addressing convenience of the parties, Plaintiff ignores Mr. Winstons points that
(1) neither party has any connection to the Orlando Division, (2) Plaintiff chose to file suit in
a courthouse much further from the closest one to her, and (3) she has offered no reason for
this arbitrary choice.5 See Dkt. 8 at 14. She also fails to address the efficiencies both parties
will realize by trying this case where all of the relevant witnesses and evidence lie. See id.
4.

The locus of operative facts is Tallahassee.

Plaintiff raises a variety of arguments to try to muddle this factor. None have merit.
First, she asserts that Mr. Winstons argument on this issue ha[s] little to no
evidentiary or legal support, even though every event alleged in Plaintiffs own Complaint
took place in Tallahassee. See Dkt. 8-1, Compl. at 2-8 8-27; Dkt. 8 at 3-6.
Second, Plaintiff contends that the locus of facts is split because her damages
continue to materialize in the Middle District. Dkt. 23 at 14. But two key points remain
uncontested: (1) all relevant events occurred in Tallahassee, and (2) no events occurred and
no damages have been suffered in the Orlando Division. Further, Plaintiff cites only one
case to support her theory, in which (unlike here) the plaintiffs injuries were so debilitating
as to preclude all travel. See Mason v. Smithkline Beecham Clinical Labs., 146 F. Supp. 2d
1355, 1361 (S.D. Fla. 2001). And moreover, she spent much of her alleged damage period
in Tallahassee (Dec. 2012 to Nov. 2013), and events in that time speak directly to whether
Plaintiff was indeed traumatized. See Dkt. 8-3 at 33-34 (describing Plaintiffs tweets).

This serves as an effective admission that Plaintiff is forum shopping. See Ziino v. Baker, 2007 WL 2433902,
at *2 (M.D. Fla. Aug. 22, 2007) (a party tacitly concede[s] the validity of the [oppositions] argument . . . by
failing to address this issue in response to the motion).

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Third, Plaintiff has failed to minimize the impact of the transfer decision in her suit
against FSU (the FSU Case). Plaintiff ignores that this Court has already decided the issue
of where a substantial part of the [relevant] events took place, and has determined that that
place is Tallahassee. See Dkt. 8 at 15-16; Dkt. 23 at 15-16 (not addressing Mr. Winstons
arguments of similarity between the 1391(b)(2) standard and the 1404(a) locus factor).
Plaintiff is thus collaterally estopped from re-litigating this issue.
5.

Only the Tallahassee Division may compel witness attendance.

Plaintiff effectively concedes that nearly all relevant nonparty witnesses are within
the Tallahassee Divisions subpoena power and beyond that of the Orlando Division.
However, Plaintiff discounts this sharp imbalance because Mr. Winston has not shown that
there is any witness who is unwilling to attend trial. Dkt. 23 at 10. But courts do not
require a movant to paper the docket with dozens of declarations of unwillingness, as
Plaintiff demands. Instead, they take a commonsense look at whether subpoenas will likely
be necessary. See Osgood v. Disc. Auto Parts, LLC, 981 F. Supp. 2d 1259, 1266 & n.7 (S.D.
Fla. 2013) (granting transfer where circumstances showed that it is likely that subpoenas
will be required; transfer was necessary to place witnesses within a courts 100-mile radius).
In fact, the willingness question is wholly irrelevant where (as here) the clear majority of
witnesses are in the transferee district. See Delorenzo v. HP Enter. Svcs., LLC, --- F. Supp.
3d ---, 2015 WL 576383, at *4 (M.D. Fla. Feb. 11, 2015) (although [n]either [party]
explains whether the identified witnesses are willing to testify in [this district], . . . . [t]ransfer
will result in the parties being able to subpoena the largest number of witnesses. Each
partys list of witnesses shows that, in the event a witness is unwilling to testify, the

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witness will likely reside within the territorial subpoena power of only transferee district);
Heath v. Hard Rock Cafe Intl, 2011 WL 1519845, at *4 (M.D. Fla. Mar. 8, 2011), rpt. &
recommn adopted, 2011 WL 1519804 (Apr. 20, 2011) (though movant failed to identify
any witnesses who are unwilling to testify[,] to the extent that any unwilling witnesses would
be associated with the [transferee forum], they would be subject to subpoena [there].).
Plaintiff stakes her willingness theory to just two cases, both of which cannot stand
up against the above authority and which are sharply distinct from the present case. See
Mason, 146 F. Supp. 2d at 1361-62 (witnesses in close balance (six in transferee district, four
in transferor); noting no suggestion of unwillingness); J.I. Kislak Mortgage Corp. v. Conn.
Bank & Trust Co., 604 F. Supp. 346, 348 (S.D. Fla. 1985) (movant cited only one class of
nonparty witnesses and identified none by name; noting no suggestion of unwillingness).
Plaintiffs argument also must fail because her open hostility toward many witnesses
has ensured that compulsory process will be necessary to secure their testimony.

As

explained above and in Dkt. 8-8, many witnesses (including those on whom Plaintiff relies)
are representatives of FSU, the TPD, or the State Attorneys officeentities that Plaintiff is
suing or has stated plans to sue.

See generally Exh. 14, FSU Case Compl.; Dkt. 8-2

(excoriating these entities and member individuals, and relying on certain same individuals
as supportive of the alleged lack of consent); Exh. 15 (Plaintiffs attorney stating plans to sue
TPD and State Attorneys Office: I want to see heads roll . . . . You absolutely are going to
see a civil suit . . . . You cannot have law enforcement that is not held accountable.). And
Plaintiff has taken similarly hostile action against Messrs. Casher and Darby by pressing
student-conduct charges against them. These circumstances leave little possibility that these

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witnesses would voluntarily travel 250 miles to Orlando to testify in this case. Of the
remaining witnesses, it is telling that Plaintiff has managed to secure declarations of
willingness from only four, creating an inference that she tried and failed to secure similar
declarations from witnesses who supposedly support her story (such as nurse Walker, victim
advocate Groff, her friend Ashley, and the cab driver).
6.

Plaintiffs relative-means argument ignores Mr. Winstons legal

arguments and further betrays her blatant forum shopping.

Plaintiff makes much of Mr. Winstons football contract, without addressing (and
thus conceding) his legal arguments on why income disparity is irrelevant in this case. See
Dkt. 8 at 17-18 (citing cases). Nor does she address the profound resources that her threefirm legal team continues to invest in this case. See id. at 18. Given those resources, one can
hardly credit her contention that she cannot bear the cost of travel, lodging and other
expenses in Tallahassee. See Dkt. 23 at 17. Her contention is especially disingenuous given
that she chose not to bring this case in her home forums nearby courthouse, and instead filed
suit in Orlando. Plaintiffs attendance at trial in Orlando would require either that she
(1) rent a hotel room in one of the highest-demand lodging markets in the country, or
(2) expend the resources necessary to make the daily 150-mile round-trip to court.
7.

The parties agree that the familiarity-of-law factor is neutral.

8.

Plaintiffs choice of forum deserves no consideration.

Plaintiffs argument on this point relies on her polling, which she says shows risk of
community bias and safety concerns. See Dkt. 23 at 5. This argument is meritless, and
this Court should afford her no deference, for at least six independent reasons.

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First, Plaintiff fails to cite a single case that suggests that claims of bias and safety
carry any weight in the forum-choice analysis. See Dkt. 23 at 5-6. Indeed, the case law
shows that Plaintiffs argument is wholly untenable, for a variety of reasons:
Courts rarely consider bias arguments at this early stage. See Haworth, Inc. v.
Herman Miller, 821 F. Supp. 1476, 1480 (N.D. Ga. 1992) (prior to voir dire, party
has heavy burden to show presumed prejudice, which is rare[ly] applicable,
and is reserved for an extreme situation) (citing cases) (quotations omitted);
Gotbaum v. City of Phx., 617 F. Supp. 2d 878, 881 (D. Ariz. 2008) (same).
Predominant bias is not enough; the bias must wholly saturate the community
[to] render it virtually impossible to obtain an impartial jury. See Haworth,
821 F. Supp. at 1480 (quoting cases); Gotbaum, 617 F. Supp. 2d at 881 (same).
Showing a preconceived notion as to [ ] guilt or innocence is not enough. See
Irvin v. Dowd, 366 U.S. 717, 723 (1961) (bias irrelevant if juror can lay aside his
impression or opinion and render a verdict based on the evidence).
Plaintiff must show that this supposed bias will be equally pervasive over a year
from now at the time of trial. See Patton v. Yount, 467 U.S. 1025, 1035 (1984).
Second, Plaintiff ignores that this Court has already determined that she may only
raise her bias argument after transfer. See Dkt. 8 at 14 n.5 (quoting 8-5 at 10 n.5).
Third, Plaintiffs polling shows no bias at all. Plaintiff mentions only a fraction (four
of 103) of its total results, Dkt. 24-2 at 13-16, and presents them in a misleading fashion. For
example, she states that 67% of those with opinions believe Defendant did not rape Ms.
Kinsman and 93% of those individuals are either completely certain or pretty certain.

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Dkt. 23 at 20 (emphasis in original). But she omits that only 54% of respondents had an
opinion on the issue, meaning that only 36.2% actually held this opinion. See Dkt. 24-2 at
13-14 (Qs 9 & 10). Plaintiff also omits results that undercut her bias narrative, such as that
52% of respondents [d]o not admire Mr. Winston (vs. 39% admire). See id. at 13 (Q 4).
Fourth, Plaintiffs bias evidence is profoundly unreliable. For example, Plaintiff
holds up her poll as evidence that the Tallahassee Division cannot provide a fair trial and the
Orlando Division caneven though the poll includes no analysis of Orlando. Indeed,
Plaintiffs only attempt to compare these Divisions relies on, of all things, Facebook likes
for FSU football, counted in the Divisions urban areas. See Dkt. 23 at 5 n.7 (citing Dkt. 233, Whitbourne Decl. at 3-4 12; excluding data from most counties in both Divisions).
Fifth, Plaintiffs evidence of internet vitriol is similarly irrelevant to the question of
juror bias. See Dkt. 24-2 at 14 (Q 16: 81% of respondents find such comments disturbing);
Gotbaum, 617 F. Supp. 2d at 882 (rejecting same argument; a handful of hostile bloggers
cannot maneuver their way onto the randomly-selected jury panel); see also United States
v. Bakker, 925 F.2d 728, 733 (4th Cir. 1991) (litigant should not be allowed to manipulate
[proceedings] by generating publicity and then using that same publicity to support [her]
claim that the media attention surrounding [her] case created a presumption of prejudice).
Moreover, Plaintiff connects only several comments to Tallahassee, and fails to address the
wealth of similar online comments directed at Mr. Winston. See Dkt. 24-4 at 1 3.6

Similarly, Plaintiff has failed to substantiate her fears of appearing in Tallahassee. Indeed, her own supporting
materials effectively concede that these fears lack a legitimate basis. See Exh. 16 at 9, Whitbourne Decl. in
Kinsman v. FSU (Tallahassee, a town in which she rightly or wrongly perceives that she is hated;
Plaintiffs counsel had Dr. Whitbourne update her declaration for this case to delete this content, see Dkt. 24-3
at 9, after FSU pointed out that her opinion undermined Plaintiffs transfer opposition arguments, see Kinsman
v. FSU, No. 15-cv-00016, Docket No. 43 at 6 (M.D. Fla. Mar. 23, 2015)) (emphasis added).

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Lastly, Plaintiff fails to address Mr. Winstons legal arguments. See Dkt. 8 at 19-20.
9.

Transfer will provide far more efficient adjudication.

Plaintiff does not dispute the efficiency of litigating this case in the same place as all
of the evidence and witnesses. She instead contends that this case has nothing to do with her
suit against FSU in Tallahassee. The overlap between these two cases is profound:
Their complaints feature many of the same facts and allegations. Compare Exh. 14,
FSU Case Compl. 28-54 with Dkt. 8-1, Compl. 8-27 (near-verbatim same).
Plaintiffs transfer oppositions in both cases rely on the same facts and exhibits. See
Dkt. 27 at 1-3 & n.1 (suggesting that Mr. Winstons transfer Motion should have
answered the arguments in Plaintiffs opposition to FSUs transfer motion).
Plaintiff relies on many of the same witnesses. Compare Dkt. 8-1 with Exh. 14.
Lack of consentthe decisive issue hereis a prerequisite for and/or is probative of
FSUs liability. See Exh. 14 at 14 63 & at 30-33 144-45, 149-50 (tying FSUs
alleged misconduct to the purported rape of Plaintiff).
The court in the FSU Case has found, and Plaintiff has conceded, that these cases are
related. See Dkt. 5 at 1; Dkt. 24-9 at 11-13 (noting overlap and likely efficiencies).
10.

The interests of justice strongly favor transfer.

Plaintiff fails to address (and thus concedes) Mr. Winstons arguments on this issue,
responding by merely recycling her meritless bias contention. Accordingly, for the reasons
cited by Mr. Winston, Dkt. 8 at 23-24, and because Plaintiff is forum shopping by filing suit
in a forum that has no connection to this case, the interests of justice strongly favor transfer.

10

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DATED:

June 9, 2015

Respectfully submitted,
By:

/s/ John F. Meyers

John F. Meyers
Florida Bar No. 0026566
john.meyers@btlaw.com
BARNES & THORNBURG LLP
3475 Piedmont Road, NE, Suite 1700
Atlanta, Georgia 30305-3327
Telephone: 404.846.1693
Facsimile: 404.264.4033
Attorney for Defendant Jameis Winston

11

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CERTIFICATE OF SERVICE
In accordance with Rule 5 of the Federal Rules of Civil Procedure and the CM/ECF
Administrative Procedures of the Middle District of Florida, I hereby certify that on June 9,
2015, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF
system. Notice of this filing will be sent to the following CM/ECF participants by operation
of the Courts electronic filing system:
David B. King
Thomas A. Zehnder
Taylor F. Ford
King, Blackwell, Zehnder & Wermuth, PA
PO Box 1631
Orlando, FL 32802-1631
dking@kbzwlaw.com
tzehnder@kbzwlaw.com
tford@kbzwlaw.com
John Clune
Baine Kerr
Lauren E. Groth
Hutchinson Black and Cook, LLC
921 Walnut Street, Suite 200
Boulder, CO 80302
clune@hbcboulder.com
kerr@hbcboulder.com
groth@hbcboulder.com
Respectfully submitted this 9th day of June, 2015.
By:

12

/s/ John F. Meyers

John F. Meyers