georgetown responds to scott ginsburg

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SCOTT K. GINSBURG, Plaintiff, v. GEORGETOWN UNIVERSITY, Defendant.

Civil Action No. 3:13-CV-00952-L

DEFENDANT GEORGETOWN UNIVERSITY’S ANSWER AND COUNTE RCLAIM

Defendant Georgetown University (“Georgetown”), by and through the undersigned

counsel, answers the Complaint filed against it by Scott K. Ginsburg and files a Counterclaim

against Mr. Ginsburg as follows:

FIRST DEFENSE

Mr. Ginsburg’s claims are barred insofar as they fail to state a claim for which relief may

be granted.

SECOND DEFENSE

Pursuant to Federal Rule of Civil Procedure 8(b), Georgetown states the following in

answer to the separately numbered averments in Mr. Ginsburg’s Complaint.

I. Parties

1. Georgetown is without knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 1.

2. Georgetown denies that it is a District of Columbia sole proprietorship but admits

the remaining allegations in paragraph 2.

Case 3:13-cv-00952-L Document 7 Filed 04/09/13 of 24 PageID 47

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II. Jurisdiction and Venue

3. Paragraph 3 states a legal conclusion regarding subject matter jurisdiction to

which no response is required. To the extent a response is deemed required, Georgetown admits

that it is the citizen of the District of Columbia and that this Court has subject matter jurisdiction.

4. Paragraph 4 states a legal conclusion regarding personal jurisdiction to which no

response is required. To the extent a response is deemed required, Georgetown admits that this

Court has personal jurisdiction over it. Further answering, Georgetown admits that it sent a

representative to Texas in part to ask Mr. Ginsburg for donations; Georgetown admits that its

officials developed an ongoing personal relationship with Mr. Ginsburg and met with him on

more than one occasion in Texas and elsewhere regarding various matters, including to request

donations; Georgetown admits that it sent Mr. Ginsburg communications in Texas and

elsewhere. Except as expressly stated, Georgetown denies the allegations in paragraph 4.

5. Paragraph 5 contains a conclusion of law regarding personal jurisdiction to which

no response is required. To the extent a response is deemed required, Georgetown admits that it

holds events from time to time in Texas. Except as expressly stated, Georgetown denies the

allegations in paragraph 5.

6. Paragraph 6 contains conclusions of law to which no response is required. To the

extent a response is deemed required, Georgetown admits that venue is not improper in this

District.

III. Factual Background

7. Georgetown admits that Mr. Ginsburg attended the Georgetown University Law

Center as an evening student and graduated with a Juris Doctor degree in 1978. Georgetown

agrees that Mr. Ginsburg became a successful businessman. Except as expressly stated,


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Georgetown is without knowledge or information sufficient to form a belief as to the allegations

in paragraph 7.

8. Georgetown admits that Kevin Conry met with Mr. Ginsburg once in late 1999

and once in early 2000 in Dallas, Texas to discuss Georgetown’s development plans for the Law

Center, including a prospective sport and fitness center, and Mr. Ginsburg’s possible

involvement in those plans through a monetary gift to Georgetown. Georgetown admits that Mr.

Conry represented that Georgetown was interested in naming the prospective sport and fitness

center after a benefactor who made a sufficiently large donation. Except as expressly stated,

Georgetown denies the allegations in paragraph 8.

9. Georgetown admits the allegations in paragraph 9.

10. Georgetown admits that Mr. Ginsburg and Georgetown entered into an agreement

on March 30, 2000, but denies the remaining allegations in paragraph 10 because the agreement

speaks for itself.

11. Georgetown denies the allegations in paragraph 11 because the March 30, 2000

agreement speaks for itself.





14. Georgetown admits that it issued a press release on September 1, 2000

announcing Mr. Ginsburg’s gift but denies the remaining allegations in paragraph 14 because the

press release speaks for itself.


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15. Georgetown denies the first sentence of paragraph 15 as stated. Further

answering, Georgetown admits that Mr. Conry visited Mr. Ginsburg in Texas on more than one

occasion for, among other purposes, the solicitation of donations. Georgetown admits the second

and third sentences of paragraph 15.

16. Georgetown admits the first seven sentences of paragraph 16 and denies the last

sentence of paragraph 16 as stated.

17. Georgetown denies the first sentence of paragraph 17 as stated and because the

2009 letter speaks for itself.

18. Georgetown denies the first sentence of paragraph 18 as stated. Georgetown

denies the second and third sentences of paragraph 18. Georgetown denies the fourth sentence of

paragraph 18 as stated.

19. Georgetown admits the first two sentences of paragraph 19 but denies the third

sentence of paragraph 19.

20. Regarding the first two sentences of paragraph 20, Georgetown admits that Dean

Areen sent Mr. Ginsburg a letter dated May 2, 2002. Georgetown denies the third sentence of

paragraph 20 as stated. Georgetown denies the remaining sentences of paragraph 20 because the

letter speaks for itself.

21. Georgetown denies the allegations in paragraph 21 as stated.

22. Regarding the first sentence of paragraph 22, Georgetown denies that Mr.

Ginsburg refused to amend the March 30, 2000 agreement or to relinquish naming rights but

admits that it promoted Mr. Ginsburg’s gift for fundraising purposes. Georgetown denies the

second sentence of paragraph 22 as stated. Georgetown denies the third and fourth sentences of

paragraph 22 because the document attached to the Complaint speaks for itself.


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23. Regarding the first sentence of paragraph 23, Georgetown denies that Mr.

Ginsburg refused to amend the March 30, 2000 agreement, but admits that Georgetown officials

traveled to Texas on more than one occasion to meet with Mr. Ginsburg for, among other

purposes, seeking donations. Georgetown denies the second sentence of paragraph 23, because

the document attached to the Complaint speaks for itself. Georgetown denies all allegations of

the third sentence of paragraph 23, except it admits that Dean Areen and Mr. Conry traveled to

Texas in July 2003.

24. Georgetown denies the first sentence of paragraph 24 except that it admits that

Mr. Ginsburg’s commitment to Georgetown continued and grew. Georgetown admits that Mr.

Ginsburg pledged an additional $11,000,000 but denies all other allegations in the second and

third sentences of paragraph 24. Georgetown denies the fourth sentence of paragraph 24 as

stated. Further answering, Georgetown admits that Mr. Ginsburg was invited to join the

Georgetown University Law Center’s Board of Visitors, welcomed to University functions,

invited on University trips, and embraced by the University, but denies the characterization of

the reasons. Georgetown denies the allegations of the remaining sentences of paragraph 24.

25. Georgetown admits the first sentence of paragraph 25. Georgetown denies the

second and third sentence of paragraph 25, because the receipt speaks for itself.

26. Georgetown denies the allegations in paragraph 26 as stated. Further answering,

Georgetown admits that the named individuals traveled to Texas to meet with Mr. Ginsburg for

various purposes, including for the purpose of soliciting donations. Georgetown denies that the

visits occurred on a “regular basis” or that any Georgetown official ever assured Mr. Ginsburg

that Georgetown would name the Sport and Fitness Center for him.


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27. Georgetown denies paragraph 27 as stated and because whatever document the

paragraph quotes speaks for itself.

28. Georgetown denies the allegations of the first sentence of paragraph 28.

Regarding the second and third sentences of paragraph 28, Georgetown admits that Dean

Aleinikoff sent Mr. Ginsburg a letter dated January 11, 2009 but denies the remaining allegations

because the letter speaks for itself. Georgetown admits that Mr. Ginsburg was sent a letter dated

March 24, 2009 but denies the remainder of the fourth and fifth sentences of paragraph 28

because the letter speaks for itself.

29. Georgetown admits that the Sport and Fitness Center has not been named for a

donor. Except as expressly stated, Georgetown denies the allegations in paragraph 29.

30. Regarding the first sentence of paragraph 30, Georgetown denies that it assured

Mr. Ginsburg that it would name the Sport and Fitness Center for him after April 2002, but

admits that it did not name the Sport and Fitness Center for him. Georgetown denies the second

and third sentences of paragraph 30, because the e-mail from Mr. Ginsburg to Mr. Conry speaks

for itself. Georgetown denies the fourth sentence of paragraph 30. Georgetown admits that Mr.

Ginsburg met with President DeGioia in February 2013, but otherwise denies the fifth sentence

of paragraph 30. Georgetown admits that President DeGioia told Mr. Ginsburg he would look

into the matter of Mr. Ginsburg’s alleged naming rights, but otherwise denies the sixth sentence

of paragraph 30.

31. Georgetown admits that Mr. Ginsburg filed this action against Georgetown but

denies the other allegations in the first sentence of paragraph 31 as stated. Georgetown denies

the second sentence of paragraph 31. Georgetown admits that Mr. Ginsburg donated to


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Georgetown at least $7.5 million, including his initial $5,000,000 pledge, but denies the other

allegations of the third sentence of paragraph 31.

32. Paragraph 32 states a legal conclusion regarding the statute of limitations to which

no response is required. To the extent a response is deemed required, Georgetown denies the

allegations in paragraph 32.

IV. Causes of Action

First Cause of Action: Breach of Contract

33. Regarding the allegations in paragraph 33, Georgetown re-alleges and

incorporates herein by reference its answers to each of the allegations set forth in numbered

paragraphs 1–32 of the Answer as if fully set forth herein.

34. Paragraph 34 states a legal conclusion regarding the existence of a contract, to

which no response is required. To the extent a response is deemed required, Georgetown denies

the allegations in paragraph 34 as stated.

35. Georgetown denies the allegation in paragraph 35.


37. Georgetown admits that Mr. Ginsburg is seeking judicial relief but denies that Mr.

Ginsburg suffered damages or is entitled to restitution or the recovery of attorney’s fees and

expenses incurred in the prosecution of this action.

Second Cause of Action: Fraud/Fraudulent Inducement






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40. Georgetown denies the allegations in paragraph 40.

41. Georgetown denies the allegations in paragraph 41.


43. Georgetown admits that Mr. Ginsburg is seeking judicial relief but denies that Mr.

Ginsburg suffered damages or is entitled to restitution or any other form of judicial relief.

Third Cause of Action: Restitution




45. Georgetown admits that Mr. Ginsburg has donated to Georgetown an amount of

at least $7.5 million. Except as expressly stated, Georgetown denies the allegations in paragraph

45.

46. Georgetown admits that it solicited gifts from Mr. Ginsburg and was aware that

Mr. Ginsburg made pledge payments to Georgetown. Except as expressly stated, Georgetown

denies the allegations in paragraph 46.



49. Georgetown admits that Mr. Ginsburg seeks recover of at least $7.5 million, but

denies that Georgetown was unjustly enriched or that Mr. Ginsburg is entitled to any recovery.

Jury Demand

50. Georgetown admits that Mr. Ginsburg has demanded a trial by jury in paragraph

50.


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51. Georgetown admits that Mr. Ginsburg is seeking various forms of judicial relief

but denies that Mr. Ginsburg is entitled to the requested relief or any other relief.

* * *

All allegations contained in the Complaint not otherwise specifically admitted, denied,

qualified or otherwise responded to are denied.

THIRD DEFENSE

Mr. Ginsburg’s claims are barred by the applicable statutes of limitations.

FOURTH DEFENSE

Mr. Ginsburg’s claims are barred by the doctrine of laches.

FIFTH DEFENSE

Mr. Ginsburg’s claims are barred because Georgetown and Mr. Ginsburg modified the

March 30, 2000 Agreement orally in 2002 and by entering into a second agreement in 2003 that

superseded the March 30, 2000 Agreement and eliminated the naming condition.

SIXTH DEFENSE

Mr. Ginsburg’s claims are barred by an accord and satisfaction.

SEVENTH DEFENSE

Mr. Ginsburg’s claims are barred by the doctrines of waiver, estoppel, and/or unclean

hands.

EIGHTH DEFENSE

Mr. Ginsburg’s claims are barred because he suffered no legally cognizable damages for

any failure of the alleged naming condition.

NINTH DEFENSE


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Mr. Ginsburg’s claims are barred because Georgetown’s actions were legally justified

and/or privileged.

TENTH DEFENSE

Georgetown would be entitled to recoupment for any recovery to which Mr. Ginsburg

might be entitled.

ADDITIONAL DEFENSES

Georgetown reserves the right to raise any additional defenses as may be found to be

merited during the course of discovery in, or trial of, this action, including without limitation any

equitable defense.

COUNTERCLAIM

For its Counterclaim against Mr. Scott K. Ginsburg, Georgetown alleges as follows:

INTRODUCTION

1. Under gift agreements executed in 2000 and 2003, Scott K. Ginsburg—a 1978

graduate of the Georgetown University Law Center (“Law Center”), a member of its Board of

Visitors since 2000, and for many years an avid financial supporter of the University—promised

to give Georgetown University $16 million. The 2000 gift agreement pledged $5 million for the

construction of a recreational facility on campus as part of the Georgetown University Law

Center’s Campus Completion Project. The 2003 gift agreement pledged an additional $6 million

for the Campus Completion Project and for the construction of a clock tower, and another $5

million for use at the discretion of the University President.

2. Mr. Ginsburg still owes Georgetown approximately $9 million under the 2003 gift

agreement, but has sued Georgetown in the above-captioned matter seeking return of all the

money he has donated under both agreements, which he alleges totals approximately $7.5


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million. In response, Georgetown brings this Counterclaim to recover the amount outstanding

under the 2003 gift agreement.

3. Mr. Ginsburg claims that Georgetown failed to comply with a condition in the

2000 gift agreement requiring Georgetown to name the recreational facility the “Scott K.

Ginsburg Sport and Fitness Center” once the facility was constructed. Although Georgetown

intended to comply with the condition, in spring 2002 Mr. Ginsburg was found liable for insider

trading by a federal court jury in a civil case brought by the United States Securities and

Exchange Commission (“SEC”). After learning of the verdict—and concerned about naming a

new facility on the Law Center campus after someone found liable for insider trading—

Georgetown offered to cancel Mr. Ginsburg’s pledge and return his money. Mr. Ginsburg

refused. He said he believed in the project and did not want his legal problems to slow the Law

Center’s progress, and agreed to waive the naming condition. For its part, Georgetown agreed

that if the SEC judgment finding him liable for insider trading were overturned, it would revisit

the naming issue. Final judgment in the SEC case ultimately was entered against Mr. Ginsburg

in 2004.

4. Accordingly, as of spring 2002, the understanding of the parties was that the

building would not be named for Mr. Ginsburg. For the next decade, Mr. Ginsburg and

Georgetown continued to have a positive and productive relationship. Most significantly, in

2003, Mr. Ginsburg made an additional $11 million pledge to the Law Center. In addition, in

October 2006, Mr. Ginsburg donated another $1 million to help the Law Center purchase real

property adjacent to the Law Center campus.

5. In September 2004, Georgetown celebrated the opening of the newly completed

recreational facility, named the Sport and Fitness Center, and the completion of the clock tower.


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Because the insider trading judgment against Mr. Ginsburg was final, Georgetown did not name

the Sport and Fitness Center for him. Mr. Ginsburg did not object, but instead participated as a

speaker at the grand opening of the Sport and Fitness Center in September 2004. At that event,

Georgetown expressed deep appreciation for Mr. Ginsburg’s gift and, in recognition of his

generosity, unveiled a plaque together with a large portrait of Mr. Ginsburg that Georgetown

placed in the interior entranceway to the Center, where they remain today.

6. From at least 2004 until February 2013, Mr. Ginsburg never requested that the

Law Center name the Fitness Center after him. Nor did any Georgetown official ever say or

make any representation to Mr. Ginsburg that the facility would be named for him. At a

February 2013 meeting, however, Mr. Ginsburg expressed concern that the building had not been

named for him.

7. The next month—almost thirteen years after entering into the 2000 agreement,

eleven years after being told that the Law Center would not name the Sport and Fitness Center

for him, ten years after he decided to pledge an additional $11 million to Georgetown, nine years

after the SEC judgment against him became final, and nine years after he attended the formal

grand opening of the “Sport and Fitness Center,” which was not named for him—Mr. Ginsburg

sued the University.

8. Georgetown now brings this Counterclaim to recover the approximately $9

million that Mr. Ginsburg owes on the 2003 Pledge.

II. PARTIES

9. Defendant and counter-plaintiff Georgetown University (“Georgetown”) is a non-

profit corporation incorporated and with its principal place of business in the District of

Columbia.


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10. Plaintiff and counter-defendant Scott K. Ginsburg (“Mr. Ginsburg”) is a citizen of

Texas. From 2006 to 2010, Mr. Ginsburg owned real property in the District of Columbia at

2903 P Street N.W., Washington D.C. 20007.

III. JURISDICTION

11. Because the parties are citizens of different states and the amount in controversy

exceeds $75,000, this Court has jurisdiction over the counterclaim alleged herein.

IV. VENUE

12. Under 28 U.S.C. § 1391(b), venue is proper in this district because Mr. Ginsburg

is the only-counter defendant and he resides in Texas.

V. FACTUAL ALLEGATIONS

13. Mr. Ginsburg graduated from the Law Center in 1978 and became a highly

successful entrepreneur and multi-millionaire.

14. In late 1999 and early 2000, the Law Center sought to raise funds for what it

termed the “Law Center Campus Completion Project.” The Law Center is situated in an urban

area of the District of Columbia away from Georgetown’s main campus. In late 1999 and 2000,

the Law Center consisted of a cluster of buildings but lacked the look and feel of a campus.

Through the Campus Completion Project, the Law Center sought to create a campus by

acquiring property around existing buildings and constructing new buildings.

15. As part of the Campus Completion Project, Georgetown hoped to raise funds for

the construction of a Sport and Fitness Center for use by the Law Center community.

Georgetown sought to raise funds for the project from a number of sources, including Mr.

Ginsburg, and intended to recognize the donor who provided a leadership gift by naming the

building for that donor or the donor’s designee.


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16. On March 30, 2000, Mr. Ginsburg pledged $5 million to Georgetown to be used

in construction of the Sport and Fitness Center. Although the general terms of what became the

2000 Pledge were discussed in Texas, Mr. Ginsburg’s Washington, D.C. attorney drafted the

agreement and negotiated the details with Georgetown officials in Washington, D.C. The pledge

agreement is attached hereto as Exhibit 1 (the “2000 Pledge Agreement”).

17. Under the 2000 Pledge Agreement, Mr. Ginsburg agreed to donate $5 million and

Georgetown agreed to use the funds to construct the Sport and Fitness Center consistent with

plans that had been shown to Mr. Ginsburg. The pledge was conditioned on Georgetown’s

naming the new facility the “Scott K. Ginsburg Sport and Fitness Center” (the “Naming

Condition”). The pledge was cancellable by Mr. Ginsburg in the event that Georgetown did not

comply with the Naming Condition or its promise to construct the Sport and Fitness Center.

18. The 2000 Pledge Agreement also required Georgetown to give to Mr. Ginsburg a

lifetime membership and locker space in the Sport and Fitness Center.

19. The terms of the 2000 Pledge Agreement made clear that the Board of Trustees

was required to approve it, and the Board did approve the 2000 Pledge Agreement as required.

20. Mr. Ginsburg believed in the importance of the Sport and Fitness Center.

According to him, “One of the great lessons every student should learn before they become a

lawyer is to channel aggressive behavior into activities such as athletic endeavors rather than in

the legal system. Putting an athletic center next to the Law Center, perhaps, will help these

students understand this important distinction.” Ian A. Palko, Law Center Alum Give $5M for

Fitness: Planned Health and Recreation Center Will Bear Donor’s Name, The News Hoya

(Sept. 12, 2000).


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21. Subsequent to execution of the 2000 Pledge Agreement, Mr. Ginsburg’s

relationship with the Law Center and the University deepened. Mr. Ginsburg joined the Law

Center’s Board of Visitors in 2000 (he remains a member) and his daughter enrolled as an

undergraduate student on the main campus in 2002. Later, in 2006, she followed in her father’s

footsteps and enrolled at the Law Center.

22. Georgetown intended to comply with the Naming Condition from the date on

which the 2000 Pledge Agreement was executed until spring 2002, a period during which the

Sport and Fitness Center was not yet fully financed, much less built. In documents generated

during that period (including, for example, every document Mr. Ginsburg attached to the

Complaint from before April 2002) Georgetown referred to the building as the “Scott K.

Ginsburg Sport and Fitness Center.”

23. On April 16, 2002, a jury in the United States District Court for the Southern

District of Florida found Mr. Ginsburg civilly liable for insider trading violations. The jury

found that Mr. Ginsburg had shared material non-public information with his brother and father

in violation of Rules 10-b and 14-e of the Securities and Exchange Act. The verdict form is

attached hereto as Exhibit 2.

24. Later in April 2002, Judith Areen, who at that time was Dean of the Law Center,

learned of the insider trading verdict from a newspaper article.

25. Deeply troubled by the potentially negative publicity and the message it would

send to students and the public that one of the nation’s leading law schools had named a building

after an individual found liable for insider trading, Dean Areen met with other officials at the

University to discuss the 2000 Pledge and the Naming Condition. They concluded that

Georgetown should not name the building for Mr. Ginsburg under the circumstances, but instead


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should offer to return the money Mr. Ginsburg had already paid on the 2000 Pledge and release

him from any further financial obligation to Georgetown.

26. Dean Areen telephoned Mr. Ginsburg to inform him that Georgetown would not

name the Sport and Fitness Center for him in light of the SEC verdict, but would be willing to

revisit the issue if the verdict were overturned. Dean Areen told Mr. Ginsburg that Georgetown

would return all the money he had already paid to the University (approximately $2 million) and

release him from any future obligation under the 2000 Pledge Agreement.

27. In response, Mr. Ginsburg informed Dean Areen that he would not accept the

return of his money and would honor his pledge without Georgetown’s fulfillment of the Naming

Condition. Mr. Ginsburg insisted that he wanted to go forward with the pledge and did not want

his legal problems to stall the project. Mr. Ginsburg also expressed confidence that the verdict

against him would ultimately be overturned. Dean Areen told Mr. Ginsburg that Georgetown

would revisit the question of naming the facility for him only in the event that the verdict was

overturned. Mr. Ginsburg agreed.

28. On April 25, 2002, the Washington Post reported that “Back in September 2000,

the folks at the Georgetown University Law Center were crowing about 1978 alum Scott K.

Ginsburg’s $5 million gift to build the Scott K. Ginsburg sports and fitness facility. But they’ve

been much less talkative since April 16, when a federal jury found that Ginsburg . . . had

engaged in illegal insider trading.” The story also quoted the Law Center’s public relations

department as stating: “‘Mr. Ginsburg wants the project to go forward and he has graciously

requested to withdraw his name at this time,’ she told us . . . ‘he continues to be supportive of the

project.’” Mr. Ginsburg was quoted in this same news story.


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29. From spring 2002 forward, Georgetown made clear that it would not name the

Sport and Fitness Center for Mr. Ginsburg as long as the verdict against him stood.

30. Dean Areen and Georgetown relied on Mr. Ginsburg’s agreement to waive the

Naming Condition. As Dean Areen wrote to Mr. Ginsburg in a letter dated May 2, 2002: “[y]our

willingness to complete your pledge to the Law Center should make it possible for us to obtain

Board approval of the full project on May 2002. Without your steadfast loyalty, the project

probably would not have been viable.” See Compl. Ex. E.

31. Had Mr. Ginsburg accepted the return of his money and cancellation of the

pledge, the project might have been delayed, but Georgetown would have had the opportunity to

find another donor.

32. On December 19, 2002, the District Court judge who presided over Mr.

Ginsburg’s insider trading case granted Mr. Ginsburg’s motion for judgment notwithstanding the

verdict (“JNOV”). The SEC appealed to the 11th Circuit.

33. After the JNOV decision, Mr. Ginsburg called Georgetown’s Vice President for

Strategic Development and External Affairs, Kevin Conry, to ask whether he was still an

accepted member of the Georgetown community and whether Georgetown would now agree to

name the building after him. Mr. Conry reaffirmed Mr. Ginsburg’s place in the Georgetown

community and told him the naming issue could be addressed at the conclusion of the legal

proceedings. After covering the same ground in a telephone conference with Dean Areen, Mr.

Ginsburg scheduled a meeting with the President of the University.

34. In spring 2003, just before the scheduled meeting, Mr. Ginsburg was involved in a

serious automobile accident. Mr. Ginsburg cancelled the meeting, but according to Mr.


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Ginsburg, the accident left him feeling that he had received a second chance at life and motivated

him to increase his charitable giving to Georgetown.

35. And indeed, in spring 2003, Mr. Ginsburg called Dean Areen and asked her what

was the amount of the largest single gift the Law School had ever received, telling her he wanted

to exceed it. He also said that he wanted to see the construction of a clock tower added back into

the Campus Completion plan. After Dean Areen told him that the largest gift the Law Center

had ever received was $10 million, Mr. Ginsburg pledged $11 million to Georgetown (the “2003

Pledge”).

36. In a March 31, 2003 telephone conversation with Mr. Conry, Mr. Ginsburg stated

that although he still wanted Georgetown to name the Sport and Fitness Center for him, he did

not insist that Georgetown do so as a condition of the new pledge.

37. On June 27, 2003, Mr. Ginsburg and Georgetown entered into the 2003 Pledge

Agreement. The 2003 Pledge Agreement is attached hereto as Exhibit 3. The 2003 Pledge

Agreement was for $11 million, and provided that $6 million of that amount was to be used for

the Law Campus Completion Project (including up to $1 million for the construction of the clock

tower) and the remaining $5 million was to be used at the discretion of the President of

Georgetown University. The gift was conditioned on Georgetown’s procuring the design and

construction of a clock tower at a prominent location on the Law Center campus as part of the

Law Campus Completion Project.

38. The 2003 Pledge Agreement modified the 2000 Agreement. The 2003 Pledge

Agreement reaffirmed the 2000 Pledge, stating that “[Mr. Ginsburg] agreed to provide the sum

of Five Million Dollars ($5,000,000) for the purpose of helping to construct a Sport and Fitness

Building on the Georgetown University Law Center campus.” See Exhibit 3 at Introduction. The


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2003 Pledge Agreement then integrated the remaining balance on the 2000 Pledge ($3 million)

into one consolidated payment schedule with the 2003 Pledge. See id. at ¶ 1. Georgetown relied

on Mr. Ginsburg’s 2003 Pledge Agreement by constructing the clock tower and taking other

steps in furtherance of the Campus Completion project.

39. On March 19, 2004, the Eleventh Circuit Court of Appeals reversed the District

Court’s grant of JNOV to Mr. Ginsburg and ordered that the jury verdict finding him liable for

insider trading be reinstated. On June 4, 2004, the District Court entered final judgment against

Mr. Ginsburg, permanently enjoining him from future violations of the Securities and Exchange

Act and ordering him to pay a $1 million civil penalty. The order is attached hereto at Exhibit 4.

Mr. Ginsburg appealed no further.

40. Just over three months later, on September 10, 2004, the Law Center dedicated

the newly-completed Sport and Fitness Center. Because the SEC judgment against him had been

finalized—and consistent with his agreement with Dean Areen—the Law Center did not name

the building for Mr. Ginsburg. However, the Law Center publicly recognized Mr. Ginsburg’s

gift, including by displaying a large portrait of him in the lobby of the Sport and Fitness Center

above a plaque stating that his gift had made the building possible.

41. Mr. Ginsburg attended the Sport and Fitness Center dedication ceremony and

helped cut the ribbon. The Law Center hosted a “Recognition Ceremony” honoring Scott K.

Ginsburg, L ’78, “[w]ith deepest appreciation to Scott K. Ginsburg, L’78 a loyal alumnus and

valued friend, whose profound generosity of spirit and extraordinary commitment to the Law

Center community made possible this Sport and Fitness Center.” Mr. Ginsburg was introduced

by Law Center Dean Aleinikoff and made remarks to the assembled guests. The materials

published in connection with the event provided that “Scott made an extraordinary leadership


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level gift to the Law Center for the construction of the Sport and Fitness Center and the clock

tower on the Law Center campus.” See Exhibit 5.

42. The building, however, did not bear Mr. Ginsburg’s name. Instead, in lettering

over the main entrance, the Law Center named the building the “Sport and Fitness Center.”

43. Mr. Ginsburg did not complain about this. To the contrary, he proceeded to make

payments under the 2003 Pledge Agreement and, in general, to continue his amicable

relationship with Georgetown. On October 5, 2005, Mr. Ginsburg sent Georgetown a

handwritten note transmitting a $1 million check, explaining that “[my] commitment to GU is a

source of great pride and happiness. And here is another installment of my continuing pledge to

the University, the Law School and to its leadership.” In October 2006, Mr. Ginsburg pledged

and completed payment on a new $1,029,074.77 gift for the acquisition of a townhouse property

for the Campus Completion Project. The parties continued their mutually productive and

satisfying business relationship through 2013, and during that period Mr. Ginsburg never again

demanded that Georgetown name the Sport and Fitness Center for him.

44. At a February 2013 meeting between Mr. Ginsburg and Georgetown’s President,

Mr. Ginsburg abruptly changed course and, for the first time since at least 2004, expressed

concern that the Sport and Fitness Center had not been named for him. Mr. Ginsburg’s failure to

raise the subject for nine years was not for lack of opportunity. For much of that time, Mr.

Ginsburg had been meeting and communicating frequently with the Dean of the Law School,

Alex Aleinikoff, both as a friend and as a member of the Law Center Board of Visitors, a

position that Ginsburg holds to this day. But Mr. Ginsburg never expressed to Dean Aleinikoff

any concern that the Sport and Fitness Center did not bear his name.


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45. Mr. Ginsburg did, however, fall short on pledge payments, including among

others the pledge payment due before December 30, 2009. Mr. Ginsburg owes approximately $9

million in payments under the 2003 Pledge Agreement.

46. For its part, Georgetown completed the clock tower on the Law Center’s campus

in accordance with the 2003 Pledge Agreement and used all funds consistent with the 2003

Pledge Agreement. Georgetown has incurred expenses that it otherwise would not have incurred

if it had received Mr. Ginsburg’s 2003 pledge in full.

47. Mr. Ginsburg has sued Georgetown seeking to recover all the money he has paid

to Georgetown under the 2003 Pledge Agreement.

VI. CAUSES OF ACTION

COUNT I: BREACH OF CONTRACT

48. Georgetown hereby incorporates by reference paragraphs 1–47 of this

Counterclaim as if fully set forth herein.

49. The 2003 Pledge Agreement is an enforceable written contract. Under the 2003

Pledge Agreement, Mr. Ginsburg agreed to donate $14 million dollars to Georgetown.

Georgetown agreed to construct on its Law Center campus a clock tower that Mr. Ginsburg

wanted added back into the Campus Completion Project and otherwise to use the funds given for

specified purposes or at the direction of specified individuals.

50. Georgetown constructed the clock tower and has materially complied with all

other terms and conditions of the 2003 Pledge Agreement.

51. Mr. Ginsburg, however, has failed to complete his pledge payments and owes a

balance of approximately $9 million.


22

52. As a result of Mr. Ginsburg’s failure to honor the 2003 Pledge Agreement,

Georgetown suffered damages in the amount of the outstanding balance under the 2003 Pledge

Agreement to be proven at trial, approximately $9 million, plus interest. In the event Texas law

is deemed to apply to the 2003 Pledge Agreement, Georgetown also seeks recovery of its

reasonable and necessary attorneys’ fees and expenses occurred in the prosecution of this action,

as permitted by the Texas Civil Practice and Remedies Code.

COUNT II: PROMISSORY ESTOPPEL

53. Georgetown hereby incorporates by reference paragraphs 1–52 of this

Counterclaim as if fully set forth herein.

54. Mr. Ginsburg promised to pay Georgetown $14 million dollars in the 2003 Pledge

Agreement but has failed to pay approximately $9 million of that amount.

55. Mr. Ginsburg not only could foresee that Georgetown would rely on his promise

but expected and encouraged Georgetown to do so.

56. Georgetown relied on the promise to its detriment.

57. Injustice can be avoided only by the enforcement of Mr. Ginsburg’s promise.

VII. JURY TRIAL

58. Georgetown demands a trial by jury on all issues.

VIII. RELIEF REQUESTED

59. Georgetown respectfully requests the following relief:

a. Expectation and reliance damages;

b. In the event Texas Law governs this breach of contract action, the reasonable

and necessary attorneys’ fees and expenses incurred through the trial of this


23

action and through any appeal, including but limited to expert witness fees

and expenses;

c. The costs of prosecuting this action;

d. Such other appropriate relief to which Georgetown may be entitled.

Dated: April 9, 2013 William D. Nussbaum D.C. Bar No. 941815 Joel D. Buckman D.C. Bar No. 1003868 HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 Tel: (202) 637-5600 Fax: (202) 637-5910 [email protected] [email protected] Of counsel

Respectfully submitted, /s/ Bruce D. Oakley Bruce D. Oakley State Bar No. 15156900 HOGAN LOVELLS US LLP 700 Louisiana Street Suite 4300 Houston, TX 77002 Tel: (713) 632-1400 Fax: (713) 632-1401 [email protected] Counsel for Defendant Georgetown University


CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was filed electronically on April 9th, 2013, in compliance with the Court’s Standing Order Designating Case for Enrollment in the Electronic Case Files System, and has been served on all counsel by electronic service.

/s/ Bruce D. Oakley Bruce D. Oakley


DfiNilA l COGN AGREEMENT

This Agreement is made this 30th day of Mare... 2000. between Georgetown University ("GU") and Scott Kippel Ginsburg ("SKG").

1. Pledge. Based upon and in reliance upon the terms and conditions set forth below, SKG hereby pledges to donate to GU the sum of Five Million Dollars ($5,000,000) (the "Pledge"), to be contributed as follows:

(a) One Million Dollars ($1.000.000) on or before June 30, 2000;

(b) One Million Dollars ($1,000,000) on or before June 30. 2001;

(c) One Million Dollars ($1,000,000) on or before June 30, 2002;

(d) One Million Dollars ($1,000.000) on or before June 30, 2003;

(e) One Million Dollars ($1,000,000) on or before June 30, 2004.

the event that construction of the Fitness Center (defined below) is not completed by June 30, 2004, SKG may make the final $1,000,000 contribution in two stages, $500,000 by June 30, 2004 and $500,000 by September 1, 2005.

2. Nature of Contribution. The Pledge may be contributed in cash or cash equivalents or in publicly traded securities at their appreciated value. Such securities will be valued at their closing price as of the date prior to the date of actual contribution.

3. Tax-Deductibility of Pledge. The Pledge is made pursuant to GU's Law Center Campus Completion Project Fund (the "Fund"), and it is made on the representation and understanding that the legal status of GU and the Fund are such that the Pledge will be fully tax-deductible as a charitable contribution.

4. Use of Proceeds. The proceeds of the Pledge shall be used for the construction of the proposed Sports and Fitness Center (the "Fitness Center") to be constructed at the Georgetown University Law Center (the "Law Center"), and not for any other purpose unless explicitly approved by SKG in writing. Nothing fi) this paragraph shall be construed to restrict GU from commingling the proceeds of the Pledge with other University assets. but GU covenants that the Sports and Fitness Center will be constructed and completed on the general terms and conditions set forth in this Agreement.

5. Location and Description of Fitness Center. The Fitness Center will be located on the Law Center campus in the setting as previously described to SKG. It will be constructed of sound quality befitting a prestigious academic institution, with

DC_DOCSU80494.1 [W97]

EXHIBIT

1

Case 3:13-cv-00952-L Document 7-1 Filed 04/09/13 Page 1 of 21 PageID 71

extedzi•: athletic. health, fitness and recreational facilities to be made available to Gel Law Center students and faculty, and with a health club of appropriate size and quality which will be made available by membership to some members of the community, all as previously described to SKG. Although SKG does not by this Agreement seek or acquire approval rights for the specific size, design or composition of the Fitness Center. the Pledge is conditioned upon GU's promise to construct the Fitness Center generally accordance with the plans previously furnished to SKG. Any fundamental changes in the design, size, location, composition or intended use of the building must be approved by SKG. (For example, GU may make changes in the appearance of the Fitness Center, the specific facilities to be included or the particular design of the building, but a substantial reduction in the size of the proposed building or a relocation of the Fitness Center to a different site must be approved by SKG in advance or the Pledge shall be cancelable at SKG's option.)

6. Timing. GU covenants that the Fitness Center will be constructed and placed into service no later than September 1, 2005. If GU fails to meet this covenant or otherwise announces a suspension of its commitment to complete construction on time or in the manner contemplated herein, the Pledge shall be cancelable at SKG's option.

7. Effect of Cancellation. In the event SKG exercises his right to cancel the Pledge, any funds contributed by SKG prior to the cancellation date shall be promptly returned to SKG, and SKG shall iJeased from further obligation hereunder.

8. Naming Rights. The Pledge is conditioned upon GU's compliance with the following:

(a) The Fitness Center shall be named the "Scott K. Ginsburg Health and Fitness Center" (the "Name").

(b) The Name shall be prominently etched and displayed above the main entrance of the Fitness Center in a manner (and with similar boldness, prominence and importance) similar to that of the Edward Bennett Williams Law Library, the Bernard S. & Sarah M. Gewirz Student Center, and Bernard P. McDonough Hall.

(c) Appropriate recognition of SKG shall be placed inside the Fitness Center, in one or more prominent locations, one of which may include a mutually agreeable description and photo-portrait of SKG.

(d) GU shall utilize SKG's full name ("Scott K. Ginsburg") whenever and wherever the Fitness Center is described or referenced. Without limitation, GU shall utilize the full Name in campus signage, brochures and bulletins, promotional literature, Fitness Center membership solicitations, and in correspondence and communications about the Fitness Center. (GU acknowledges that its obligation to comply materially with this condition is of the essence of this Agreement, in light of the possibility of confusion. which could arise from the use of SKG's last name only in this context.)

DC_DOCS■28049 4 I [W971


counterparts.

INTNESS WHE of the date first abo written.

es have executed this Agreement as

SCOTT K. GINSBI9RG

9. Other Contritytor.• SKG acknowledges that GU may seek other significant donatio. s to assist in the underwriting of the construction of the Fitness Center. Such contributors may be acknowledged through plaques or signage inside the Fitness Center. Ho Fever, GU agrees that no such additional acknowledgements shall be of equal or greater boldness, prominence or importance as those accorded to SKG (either inside or outside the Fitness Center) without SKG's prior approval.

10. No Sale of Property. GU covenants that the Law Center complex and campus will be maintained at the present location for no less than fifteen (15) years following the completion of the Fitness Center, and that the Fitness Center will be properly maintained and utilized for its intended purpose throughout that period of time.

11. Membership. SKG shall be provided with a complimentary lifetime membership to the Fitness Center for himself and no more than three of his guests. SKG shall also have locker space on permanent reserve for the use of SKG. It is acknowledged that SKG expects to permit others to use his membership on a frequent basis.GU will assure that a simple procedure will be established to facilitate that use by others.

12. Death. In the event that SKG dies prior to the completion of the payments contemplated by the Pledge, the balance of such payments shall become and obligation of his estate.

13. Nature of Pledge. It is intended by both parties that they be legally bound by this Agreement. The Pledge is made in reliance upon the specific terms and conditions set forth in this Agreement. The Pledge shall be cancelable by SKG only in the event of a material breach hereof by GU or a failure of one of the conditions set forth in this Agreement.

14. Approval. This Agreement is subject to the approval of the Georgetown University Board of Directors, which approval shall be obtained prior to the date of the first contribution hereunder.

15. Counterparts. This Agreement may be executed by the parties in

DC_DOCS12804 94 I (W97J


GEORGETOWN UNIVERSITY

By: een,

ye Vice President for Law C..nter Affairs

By: Nicole F. Mandeville, Vice President and Treasurer

By: 61/4.41 -riLete_._, Leo J. O`Itonovan, Si. President

DCDOCSI230494 I [W971


Case 9:99-cv-08694-KLR Document 225 Entered on FLSD Docket 04/17/2002 Page 1 of 2

EXHIBIT 2


Case 9:99-cv-08694-KLR Document 225 Entered on FLSD Docket 04/17/2002 Page 2 of 2Case 3:13-cv-00952-L Document 7-1 Filed 04/09/13 Page 6 of 21 PageID 76

seekuiti(ks!

GEORGETOWN UNIVERSITY GIFT AGREEMENT

This agreement is made this 11 lay of Tune, 2003 •etween Georgetown University ("GU") and Scott Kippel Ginsburg 'SKG").

Introduction. Scott Kippel Ginsburg ("SKG") an• ("GU") previously entered into a Gift Ageement dated March 30, agreed to provide the sum of Five Million Dollars ($5,000,000) fo to construct a Sport and Fitness Building on the Georgetown Univ campus. Two Million Dollars (S2,000,000) in pledge payments lea.ving a balance of Three Million Dollars ($3,000.000).

Georgetown University 000 wherein SKG the puipose of helping rsity Law Center e been received by GU,

SKG desires to make an additional gift agreement for the sum of Eleven Million Dollars (S11,000,000) with GU for the purposes describ below in item 3. entitled Use of Proceeds" and to integrate the pledge payment schedules ni the March 30, 2000

Gift Agreement and this additional agreement.

I. Pledge.. Based upon and in reliance upon the terms and conditions set forth below, SKG hereby pledges to donate to GU the sum of Eleven Million Dollars (S 11,000,000) (the "Pledge"). The parties agree that the remaining Three Million Dollar (S3.000,000) balance from the March 30, 2000 Gift Agreement amthe additional Eleven Million Dollar ($11,000,000) Pledge will be integrated into the fol owing pledge payment schedule:

a) Two Million Dollars (S2,000,000) on or before De ber 30, 2003;

b) Two Million Dollns (52,000,000) on or before D ember 30, 2004;

c) Two Million Dollars (52,000,000) on or before De ember 30, 2005;

d) Two Million Dollars ($2,000,000) on or before December 30. 2006;

e) Two Million Dollars (S2,000,000) on or before Dec1eber 30, 2007;

f) Two Million Dollars (S2,000,000) on or before De ember 30, 2008; and

Two Million Dollars ($2,000,000) on or before December 30, 2009.

At SKG's option, the pledge payment schedule may be accelerated.

EXHIBIT

3


3. Use of Proceeds. The proceeds of the new PIe' ge shall be used for: s.

a) Five Million Dollars ($5,000,000) all be used at the discretion of the President of Georg town University and;

2. Nature of Contribution. The Pledge may be cnitibuted in cash or cash equivalents or in publicly traded securities. The parties and stand and agree that SKG intends to ful5lI the Pledge by contributing stock which he wns in DG Systems, Inc, a publicly traded company. The parties further understand that S G owns a significant interest in DG Sytems, Inc. and, thus, for purposes of contibutin stock in fulfillment of the Pledge., and in accordance with Federal law, may need to exerfise his stock transfer rights during approved periods of time. SKG hereby pledges to m ake his best efforts to meet the pledge payment schedule listed under item 1. above.

Yr:.

b) Six Million Dollars (56,000,000) shall be used for the Law Campus Completion Project of Ge I getown University Law Center, including the use of up to Million Dollars (51,000,000) for the construc tion o a clock tower.

4. Clock Tower. The pledge is conditioned upon eorgetown University's compliance with the following:

A clock tower shall be designed and location on the Law Campus as part Completion Project.

built on a prominent of the Law Campus

The parties agree that GU will seek then donations to assist in the underwriting of the construed of the clock tower. Such contributors will be acknowl Qed with an appropriate plaque or sigtage on or associated vu th the clock tower.

5. Death. In the event that SKG dies prior to the completion of the payments contemplated by the Pledge, the balance of such payments shall become an obligation of his estate.

6. Nature of Pledge. It is intended by both partie that they be legally bound by this Agreement. The Pledge is made in reliance upon th specific terms and conditions set forth in this Agreement. The Pledge shall be cancel ble by S.KG only in the event of a material breath hereof by GU or a failure of one of the conditions set forth in this Agreement.

7. Approval. This Agreement is subject to the ap royal of the Georgetown university Board of Directors.

8. Counterparts. This Agreement may he executed by the parties in counterparts.


AG" day of Tune, 2003.

DONOR

d this Agretnent as of

ail a. s

Gins•urg, L'7

GEORGETOWN TINIVERSITY

en, e Vice Prident for Law Center Affairs

by Christopher Jo Senior Vice President, CFO. and Trcasur er

by - s. J. eGio Preside t, Georgetown University

by

Edmond Villani, Ph.D. Chairman, Board of Directors

IlV WITNESS WHEREOF, the parties have exe the date first above written.


Case 9:99-cv-08694-KLR Document 297 Entered on FLSD Docket 06/08/2004 Page 1 of 5

EXHIBIT

4


89

Sport & Fitness Center Grand Opening Celebration Friday, September 10, 2004

10:00 AM Welcome by Dean Aleinikoff Sport & Fitness Center Address by Melissa Johnson Executive Director, President's Council on Physical Fitness and Sports (sponsored by the Sport and Entertainment Law Society)

10:30 AM LAWYERS IN THE SPORTS WORLD PANEL Hotung 2000 Title IX and Intercollegiate Sports: Where Things Stand and Opportunities for Lawyers in Professional Sports Moderated by Professor Michael Gottesman

Panelists Include: Joe Garagiola, Jr., L '75 Senior Vice President and General Manager of the Arizona Diamondbacks Nancy Hogshead-Makar, L '97 Olympic Triple Gold Medalist, Swimming Assistant Professor, Florida Coastal School of Law Mark Murphy, L '88 Director of Intercollegiate Athletics and Recreation, Northwestern University Former safety for the Washington Redskins from 1977 to 1985 Susan 0 'Malley, L '07 President of Washington Wizards and Mystics Lucinda Treat, L '96 General Counsel, Boston Red Sox

11:30 AM

RECOGNITION CEREMONY

Tower Green with President DeGioia honoring Scott K. Ginsburg, L' 78

12:30 PM

1313Q LUNCH Tower Green

4:00 PM

ICE CREAM SOCIAL Tower Green

'Celebrity appearances by Washington Mystics & Wizards, give-aways, contests, massages and demonstrations throughout the day.

EXHIBIT

5


Sport & Fitness Center Grand Opening Celebration Friday, September 10, 2004

10:30 AM Hotung 2000

1:30 AM Tower Green

LAWYERS IN THE SPORTS WORLD PANEL Title IX and Intercollegiate Sports: Where Things Stand and Opportunities for Lawyers in Professional Sports Moderated by Professor Michael Gottesman Panelists Include: Joe Garagiola, Jr., L '75 Senior Vice President and General Manager of the Arizona Diamondbacks Nancy Hogshead-Makar, L '97 Olympic Triple Gold Medalist, Swimming Assistant Professor, Florida Coastal School of Law Mark Murphy, L '88 Director of Intercollegiate Athletics and Recreation, Northwestern University Former safety for the Washington Redskins from 1977 to 1985 Susan O'Malley, L '07 President of Washington Wizards and Mystics Lucinda Treat, L '96 General Counsel, Boston Red Sox

RECOGNITION CEREMONY with President DeGioia honoring Scott K. Ginsburg, L'78

*BBQ to follow


Luncheon Honoring

SCOTT K. GINSBURG September 10, 2004

Menu

Appetizer

Heirloom Tomato Salad with Basil

Entree Roasted Red Snapper with Oranges, Shallots and Capers

Dessert Chocolate Mocha Pate with pistachio anglaise

*****vegetarian Option Available Upon Request


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DALLAS DIVISION



BRIEF IN SUPPORT OF DEFENDANT GEORGETOWN UNIVERSITY ’S

MOTION TO TRANSFER William D. Nussbaum D.C. Bar No. 941815 Joel D. Buckman D.C. Bar No. 1003868 HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 Tel: (202) 637-5600 Fax: (202) 637-5910 [email protected] [email protected] Of counsel

Bruce D. Oakley State Bar No. 15156900 HOGAN LOVELLS US LLP 700 Louisiana Street Suite 4300 Houston, TX 77002 Tel: (713) 632-1400 Fax: (713) 632-1401 [email protected] Counsel for Defendant Georgetown University April 9, 2013

Case 3:13-cv-00952-L Document 10 Filed 04/09/13 Page 1 of 22 PageID 99

i

TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1

FACTUAL BACKGROUND AND PROCEDURAL HISTORY ................................................. 2

THE COURT SHOULD GRANT THE MOTION TO TRANSFER ............................................. 6

A. The Private Interest Factors Support Transfer ................................................................. 7

1. The relative ease of access to sources of proof supports transfer .................................. 8

2. The availability of compulsory process to secure attendance of witnesses is neutral ... 9

3. The costs of attendance for willing witnesses supports transfer .................................... 9

B. The Public Interest Factors Support Transfer ................................................................ 12

1. Relative court congestion supports transfer ................................................................. 13

2. The local interests in deciding localized disputes at home supports transfer .............. 13

3. Familiarity of the forum with the law that will govern is neutral ................................ 17

CONCLUSION ............................................................................................................................. 17


ii

TABLE OF AUTHORITIES

Page(s) CASES:

Busch v Robertson, No. 3:05-CV-2043-L, 2006 WL 1222031 (N.D. Tex. May 5, 2006) .............................. passim

Doe v. Corp. of The Ass’n of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, 08-CV-371-SU, 2009 WL 2132722 (D. Or. July 10, 2009) ....................................................16

Environmental, Safety & Health Consulting Services, Inc. v. Magnablend, Inc., No. CIV.A. 12-1751, 2012 WL 5493744 (E.D. La. Nov. 13, 2012) ..........................................................................14

Frederick v. Advanced Financial Solutions, Inc., 558 F. Supp. 2d 699 (E.D. Tex. 2007) .....................................................................................14

Gootnick v. Lighter, No. C 05-02787 SI, 2005 WL 3079000 (N.D. Cal. Nov. 16, 2005) ........................................12

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) .................................................................................................................14

Gundle Lining Construction Corp. v. Fireman’s Fund Insurance Co., 844 F. Supp. 1163 (S.D. Tex. 1994) ..........................................................................................7

Hernandez v. Graebel Van Lines, 761 F. Supp. 983 (E.D.N.Y. 1991) ..........................................................................................10

In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir. 2008) ........................................................................................... passim

Kirschner Bros. Oil, Inc. v. Pannill, 697 F. Supp. 804 (D. Del. 1988) ..............................................................................................11

Koehring Co. v. Hyde Construction Co., 324 F.2d 295 (5th Cir. 1963) ...................................................................................................14

LeBouef v. Gulf Operators, Inc., 20 F. Supp. 2d 1057 (S.D. Tex .1998) .......................................................................................8

Sabre Technologies, L.P. v. TSM Exhibits, Inc., 3:09-CV-0392-L, 2010 WL 3855316 (N.D. Tex. Sept. 29, 2010) ..........................................15

Sargent v. Sun Trust Bank, N.A., No. Civ.A. 3:03-CV-2701-., 2004 WL 1630081 (N.D. Tex. July 20, 2004) .............................9


iii

SEC v. Ginsburg, 362 F.3d 1292 (11th Cir. 2004) .................................................................................................4

Sierra Club v. Flowers, 276 F. Supp. 2d 62 (D.D.C. 2003) .....................................................................................14, 16

Stratmark, Ltd. v. Cross Mediaworks, Inc., 3:10-CV-0780-L, 2010 WL 5106442 (N.D. Tex. Dec. 14, 2010) .....................................11, 13

TGI Friday’s Inc. v. Great Northwest Restaurants, Inc., 652 F. Supp. 2d 750 (N.D. Tex. 2009) ....................................................................................16

U.S. ex rel. Thomas v. Siemens AG, No. 1:04-CV-116, 2009 WL 1657429 (D.V.I. June 12, 2009) ................................................16

Wells Fargo Bank NA v. Bank of America NA, No. 3:10–CV–1825–L., 2010 WL 5287538 (N.D. Tex. Dec. 23, 2010) .........................8, 9, 10

STATUTES :

28 U.S.C. § 1391(b) .........................................................................................................................7

28 U.S.C. § 1404(a) .................................................................................................................1, 6, 7


1

INTRODUCTION

Under 28 U.S.C. § 1404(a), defendant Georgetown University (“Georgetown” or the

“University”) moves to transfer this lawsuit to the United States District Court for the District of

Columbia. This case is about two gift agreements negotiated in 2000 and 2003, at least one of

which was negotiated in the District of Columbia between Georgetown and plaintiff Scott K.

Ginsburg’s Washington, D.C. lawyer. The gift agreements memorialize financial pledges by Mr.

Ginsburg specifically for the construction of a building and a clock tower (along with funds to be

used for other things) on the Washington, D.C. campus of the Georgetown University Law

Center for the benefit of the Law Center’s students, faculty, and staff.

In deciding whether to transfer a case to another district, the Court often considers the

relative ease of access to sources of proof, the availability of compulsory process to compel non-

party witnesses, the convenience of willing witnesses, relative court congestion, the interest in

having local disputes tried locally, and relative familiarity with governing law. As discussed

below, all but two of those factors support transfer to the District of Columbia, two of them are

neutral at best, and none supports retaining the case in the Northern District of Texas. With the

exception of Mr. Ginsburg, nearly everyone and everything relevant to this dispute is in or near

Washington, D.C., including Georgetown and the Law Center facility at issue, nearly all of the

witnesses, and nearly all of the documents and other sources of proof, not to mention the Law

Center community which has benefited from Mr. Ginsburg’s gift. There can be no question that

transfer would clearly serve both the convenience of the parties and the public interest, and the

Court should order the case transferred.


2

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 4, 2013, Scott K. Ginsburg—a 1978 graduate of the Georgetown University

Law Center, a member of its Board of Visitors since 2000, and for many years an avid financial

supporter of the University—sued Georgetown University seeking the return of all the money he

has donated under financial pledge agreements he signed in 2000 and 2003, which he alleges

totals approximately $7.5 million. (See Compl. ¶¶ 7, 31.) Mr. Ginsburg has alleged three causes

of action: breach of contract, fraud, and restitution. (Id. ¶¶ 33–49.) All of Mr. Ginsburg’s claims

stem from the fact that Georgetown has not named a building on its Law Center campus for him

despite allegedly agreeing to do so in return for a donation. (E.g., id. ¶ 31.) Georgetown has

filed an Answer and a Counterclaim seeking payment on donor pledges Mr. Ginsburg made to

Georgetown but has failed to fulfill, and now moves to transfer the entire case to the District of

Columbia, which is a more appropriate venue.

On March 30, 2000, Mr. Ginsburg and Georgetown University signed a gift agreement

(the “2000 Agreement”). (Countercl. ¶ 16.) Although Mr. Ginsburg initially discussed some of

the general terms of the gift with representatives of Georgetown in Texas, the details of the

arrangement, and the 2000 Agreement itself, were negotiated in Washington, D.C. by his

attorney and representatives of the University. (Id.) Under the 2000 Agreement, Mr. Ginsburg

pledged $5 million to the University to be used for the construction of a Sport and Fitness Center

on the Law Center’s campus. (Id. ¶ 17.) The pledge was conditioned on Georgetown’s naming

the building the “Scott K. Ginsburg Sport and Fitness Center.” (Id.)

With the 2000 Agreement, Mr. Ginsburg commenced a robust relationship with the

University. (Id. ¶ 21.) He joined the Law Center’s Board of Visitors in 2000. His daughter

entered the University as an undergraduate in 2002. (Id.) In 2006, she followed her father’s


3

footsteps and enrolled at the Law Center. (Id.) Beginning in 2000, Mr. Ginsburg met often with

Georgetown officials, including all of the officials named in the Complaint. The vast majority of

those meetings took place in the District of Columbia. (See, e.g., App. at 4–5, Decl. of A.

Aleinikoff ¶ 4; id. at 7–8, Decl. of J. Areen ¶ 3; id. at 9–10, Decl. of K. Conry ¶ 4.) As the

attached declarations reflect, since 2000, Mr. Ginsburg has met in the District of Columbia with

just these three declarants at least nine times to discuss a broad array of topics relating to the

University and Mr. Ginsburg’s role as a donor and member of the Board of Visitors. This of

course does not include meetings that Mr. Ginsburg had during that period in the District of

Columbia with other Georgetown employees.

The 2000 Agreement called for Georgetown to refer to the Sport and Fitness Center as

the “Scott K. Ginsburg Sport and Fitness Center.” There is no dispute that, during the

subsequent two year period when the facility was in its planning and early construction stages,

Georgetown intended to comply with this provision. (See, e.g., Compl. ¶ 31.) But in April 2002,

following trial in the United States District Court for the Southern District of Florida of a civil

case brought by the United States Securities and Exchange Commission, a jury found Mr.

Ginsburg liable for insider trading. (See Countercl. ¶ 23.) Georgetown Law Center Dean Judith

Areen learned of the verdict in a newspaper article later in April 2002. (Id. ¶ 24.) Dean Areen

was understandably concerned about naming a prominent new building on the Law Center’s

campus after someone who had been found to have violated the law. (Id. ¶ 25.)

After consulting promptly with her colleagues, Dean Areen called Mr. Ginsburg and told

him that the University would be unable to name the Sport and Fitness Center for him in light of

the verdict. (See id. ¶¶ 25–26.) Dean Areen offered to return Mr. Ginsburg’s money and cancel

his pledge. (Id.) Mr. Ginsburg declined the offer. He said he wanted to go forward whether or


4

not the building was named for him. He told Dean Areen he believed in the project and did not

want his legal troubles to affect the Law School, which had relied on his pledge. (Id. ¶ 27.) He

also said he believed the verdict against him would be overturned. Dean Areen told Mr.

Ginsburg that Georgetown would revisit the question of naming the Sport and Fitness Center for

him only in the event that the verdict was overturned. (Id.) The parties agreed that unless and

until that happened, however, Georgetown would not name the Sport and Fitness Center the

“Scott K. Ginsburg Sport and Fitness Center.” (Id.)

In early 2003, after surviving a serious automobile accident which left Mr. Ginsburg

feeling that he had been given a second chance, he decided to increase his philanthropic

commitment to Georgetown. (Id. ¶ 34.) Mr. Ginsburg called Dean Areen at her Washington,

D.C. office, asked her to identify the amount of the largest single gift the Law Center had ever

received, and told her he wanted to make a donation that exceeded that amount. (See id. ¶ 35.)

Mr. Ginsburg ultimately pledged to Georgetown an additional $11 million—$6 million to

support the Campus Completion project and to erect a clock tower on the Law Center’s campus,

and $5 million to the President of the University to use in his discretion. This 2003 pledge was

memorialized in an agreement dated June 27, 2003. (“The 2003 Agreement”) (Id. ¶ 37.)

Meanwhile, Mr. Ginsburg’s insider trading case continued. In late 2002, the District

Court granted Mr. Ginsburg’s motion and entered a judgment notwithstanding the verdict. The

SEC appealed the District Court’s ruling to the Eleventh Circuit. (Id. ¶ 32.) In March 2004, the

Eleventh Circuit reversed the JNOV and reinstated the verdict against Mr. Ginsburg. See SEC v.

Ginsburg, 362 F.3d 1292 (11th Cir. 2004). Mr. Ginsburg elected to pursue no further appeals,

and ultimately was ordered to pay a civil penalty of $1 million and was permanently enjoined

from engaging in conduct that violates the securities laws of the United States. (Countercl. ¶ 39.)


5

Later in 2004, the Sport and Fitness Center was completed. (Id. ¶ 40.) Because the

insider trading verdict against Mr. Ginsburg was then final—and consistent with what Dean

Areen had told Mr. Ginsburg when they first discussed the issue in April 2002—Georgetown

never reversed its decision not to name the Sport and Fitness Center for him. (Id. ¶ 40–42.) Mr.

Ginsburg did not object. To the contrary, he attended the grand opening celebration for the new

facility in September 2004. (Id.) At the celebration, Georgetown heaped praise on Mr. Ginsburg

for his donation. (Id.) At a Recognition Ceremony held in his honor, Mr. Ginsburg addressed

the assembled guests. A plaque bearing Mr. Ginsburg’s name and a large portrait of him were

placed in the entranceway to the Sport and Fitness Center (where they remain today) to make

clear that his generosity had made the building possible. (Id.) But Mr. Ginsburg’s name did not

appear on the exterior of the building as had been envisioned at the time he made his original

donation. (Id.) Instead, the building was called “Sport and Fitness Center.” (Id.) That is what it

is called today. (Id.)

From at least 2004 until February 2013, Mr. Ginsburg never expressly requested either

formally or informally that the Law Center name the building for him, a requirement which the

University understood no longer to exist. (Id. at 43–44.) No Georgetown official ever made any

representation to Mr. Ginsburg that the building would be named for him. (See Answer ¶¶ 24,

26, 28.) Nevertheless, the relationship between Georgetown and Mr. Ginsburg continued to be

positive and productive. (Countercl. ¶ 43.) Mr. Ginsburg continued to serve on the Law Center

Board of Visitors—a position he holds to this day—and continued to make pledges and

donations to the Law Center, including the $11 million pledge he made in 2003 and another $1

million donation he made in October 2006 to help the Law Center purchase certain real property

adjacent to campus. (See Countercl. ¶ 43.) Mr. Ginsburg was a frequent visitor to Washington,


6

D.C., and even owned property in Washington, D.C. near the Georgetown University campus

from 2006 until 2010. (See App. at 4–5, Decl. of A. Aleinikoff ¶ 4; id. at 7–8, Decl. of J. Areen

¶ 3; id. at 9–10, Decl. of K. Conry ¶ 4; Countercl. ¶ 10.)

In February 2013, Mr. Ginsburg requested and received a meeting with Georgetown’s

President in Washington, D.C. (See id. ¶ 44.) At the meeting, Mr. Ginsburg raised out of the

blue the issue of the Sport and Fitness Center having not been named for him. (See id.) The next

month—almost thirteen years after entering into the 2000 Agreement, eleven years after being

told that the University would not name the Sport and Fitness Center for him, ten years after he

decided to pledge an additional $11 million to Georgetown, nine years after the insider trading

verdict against him became final, and nine years after he attended the dedication of a Sport and

Fitness Center facility that was not named for him—Mr. Ginsburg sued the University. (See id.

¶¶ 16, 26, 37, 39, 40–41.) Mr. Ginsburg seeks to recover not just his initial donation of $5

million, but approximately $2.5 million he paid towards the $11 million pledge he made in 2003,

on which he still owes approximately $9 million. (Compl. ¶ 31.) On April 9, 2013, Georgetown

filed an Answer as well as a Counterclaim for the balance of the 2003 pledge. (E.g., Countercl. ¶

8.)

THE COURT SHOULD GRANT THE MOTION TO TRANSFER

Under 28 U.S.C. § 1404(a), a District Court may transfer any civil action to any other

district or division where it might have been brought “[f]or the convenience of parties and

witnesses, in the interests of justice.” The decision to transfer is left to the sound discretion of

the District Court. In re Volkswagen of Am., Inc., 545 F.3d 304, 311–12 (5th Cir. 2008). A

plaintiff’s choice of forum—though not unimportant—does not carry the heavy and often

decisive weight it once carried under the common law forum nonconveniens doctrine. See id. at


7

314–15; see also Gundle Lining Constr. Corp. v. Fireman’s Fund Ins. Co., 844 F. Supp. 1163,

1165 (S.D. Tex. 1994). Rather, under § 1404(a), a court should exercise its discretion and grant

a transfer upon a showing of “good cause” by the movant “clearly demonstrat[ing] that a transfer

is ‘[f]or the convenience of parties and witnesses, in the interest of justice.’” Volkswagen, 545

F.3d at 315 (quoting 28 U.S.C. § 1404(a)). The determination of convenience turns on a number

of private and public interest factors, none of which is given decisive weight. Id.; Busch v

Robertson, No. 3:05-CV-2043-L, 2006 WL 1222031, *4 (N.D. Tex. May 5, 2006) (unpublished).

Georgetown requests a transfer to the United States District Court for the District of

Columbia, where this suit could have been brought because Georgetown is the only defendant

and is incorporated there. See 28 U.S.C. § 1391(b). As explained in greater detail below, the

relative ease of access to sources of proof, the availability of compulsory process for unavailable

witnesses, the convenience of willing witnesses, docket congestion, the fundamentally local

character of this dispute, and the D.C. District Court’s familiarity with governing law support a

transfer (or are neutral). With the exception of Mr. Ginsburg, nearly everything relevant to this

local dispute is in or near the less congested Washington, D.C. forum—the building at issue, the

documents and other sources of proof, nearly all of the likely witnesses, and the beneficiaries of

Mr. Ginsburg’s charitable gift. Transfer would clearly enhance the convenience of the parties

and the interests of justice, and the Court should order it.

A. The Private Interest Factors Support Transfer

The “private interest factors” are “(1) the relative ease of access to sources of proof; (2)

the availability of compulsory process to secure the attendance of witnesses; (3) the cost of

attendance for willing witnesses; and (4) all other practical problems that make trial of a case

easy, expeditious and inexpensive.” Volkswagen, 371 F.3d at 203 (citation omitted). Combined,


8

the first three factors compel a transfer here, including the “arguably most important” factors of

witness availability and convenience. Busch, 2006 WL 1222031, at * 5 (citing LeBouef v. Gulf

Operators, Inc., 20 F. Supp. 2d 1057, 1060 (S.D. Tex .1998)).

1. The relative ease of access to sources of proof supports transfer The sources of proof in this case are located almost exclusively in the District of

Columbia, which weighs strongly in favor of transferring the case there. The relative ease of

access to sources of proof is an important component of the convenience analysis, even if

rendered less significant by technology. Volkswagen, 545 F.3d at 316 (holding that the district in

which documents and physical evidence reside weighs in favor of transfer to that district). When

one party to a dispute possesses the “bulk” of the sources of proof, this factor weighs in favor of

a transfer to the district where that party resides. See Busch, 2006 WL 1222031 at *4; Wells

Fargo Bank NA v. Bank of America NA, No. 3:10–CV–1825–L., 2010 WL 5287538, *2 (N.D.

Tex. Dec. 23, 2010) (unpublished) (concluding the access to proof factor weighed in favor of a

transfer when the “majority of documentary proof and the persons involved in the structuring of

the MLPA and mortgage-backed securities transaction reside in or around New York,

Connecticut, and North Carolina” all “significantly closer in proximity to New York than to

Texas”).

Here, Mr. Ginsburg’s case concerns his long relationship with the University, which

maintains books and records related to that relationship through multiple custodians. (See App.

at 9, Decl. of K. Conry ¶ 3 (identifying multiple departments and offices at Georgetown that

would maintain documents and records relevant to Mr. Ginsburg’s gifts, including the

President’s Office, Law Center Dean’s Office, Board of Visitors, Law Center Office of

Advancement, Georgetown University Office of Advancement, and the Edward Bennett


9

Williams Law Library, Law Library Archives). To be sure, Mr. Ginsburg may have some

discoverable evidence in his possession. However, Georgetown almost certainly possesses the

“bulk” of records and tangible things relevant to its decision not to name the Sport and Fitness

Center for him. Accordingly, as in Busch, this factor “definitively weighs in favor of transfer.”

2006 WL 1222031, at *4.

2. The availability of compulsory process to secure attendance of witnesses is neutral

Whenever transferring a case would bring non-party witnesses potentially necessary for

fair trial of the case who are outside of a parties’ control under the subpoena power of the court

to which the case is transferred, transfer is favored. See Wells Fargo, 2010 WL 5287538, at *3.

The key question is simply whether “compulsory process to secure the attendance of witnesses is

available.” Id. Because the three potential non-party witnesses of whom Georgetown is aware

at this time would not be subject to subpoena in either forum, this factor is neutral but certainly

does not weigh against transfer. 1/

3. The costs of attendance for willing witnesses supports transfer The cost of attendance, which is often regarded as the most important factor to be

considered when deciding whether to transfer venue, overwhelmingly favors transfer to the

District of Columbia. See Sargent v. Sun Trust Bank, N.A., 2004 WL 1630081, at *3 (N.D. Tex.

July 20, 2004) (unpublished).

Cost of attendance focuses on the monetary and personal costs associated with being

1/ Georgetown has identified at least three material non-party witnesses: former Georgetown employees Mary Matheron, Paul Seifert, and Michael Goodwin. Ms. Matheron and Mr. Seifert had substantial dealings with Mr. Ginsburg and the donor transactions at issue while they were employed at Georgetown. Mr. Goodwin may also have had some contact with Mr. Ginsburg. (App. at 11, Decl. of K. Conry ¶ 5.) Georgetown understands that Ms. Matheron resides and works in New Haven, Connecticut, Mr. Seifert resides and works in Naples, Florida, and Mr. Goodwin resides and works in Oregon. (Id.)


10

away from work, family, and community. Volkswagen 545 F.3d at 317. When witnesses must

travel more than 100 miles, “the factor of inconvenience to witnesses increases in direct

relationship to the additional distance to be traveled.” Id. (citation omitted). Costs to non-party

witnesses are weighed more heavily than to party witnesses, but when the vast majority of party

witnesses live in a far-away forum this factor weighs in favor of transfer. See Busch, 2006 WL

1222031, at *5 (“Other than himself and his wife, Busch has provided no evidence as to any

other potential witnesses in the Northern District of Texas. Accordingly, consideration of

convenience and cost to witnesses favors transfer.”); Hernandez v. Graebel Van Lines, 761 F.

Supp. 983, 989 (E.D.N.Y. 1991) (when all witnesses except for plaintiff and his two treating

physicians resided in district to which transfer sought, that fact weighed strongly in favor of

transfer).

Mr. Ginsburg’s claims hinge on alleged representations Georgetown employees made to

him on various occasions. All the individuals specifically named in the Complaint are

Georgetown employees: Kevin Conry, President DeGioia, and former Dean of the Law Center

Judith Areen and former Dean of the Law Center Alexander Aleinikoff, who is presently on a

leave of absence. (See Compl. ¶¶ 8, 15, 23, 26, 30 (K. Conry); id. ¶¶ 15–16, 26, 28, 30

(President DeGioia); id. ¶¶ 15, 20, 23 (J. Areen); id. ¶¶ 15, 26, 28 (A. Aleinikoff).) The same is

true of the various unspecified “Georgetown Officials” the Complaint mentions. (Id. ¶¶ 18, 22–

24, 28, 30 (“Georgetown Officials”).) All of the individuals specifically named in the Complaint

are likely to be called by one party or the other as witnesses in this case—a case in which, given

the nature of claims and defenses, live testimony may be of paramount importance. Cf. Wells

Fargo, 2010 WL 5287538, at *3 (“[T]he court is mindful that video taped depositions are less

preferred at trial than live testimony.”).


11

All of these individuals reside in or near Washington, D.C., with the exception of Mr.

Aleinikoff, who is currently in Switzerland. Holding trial in the Northern District of Texas

would require each of the District of Columbia-area residents to travel 2,700 miles round-trip

and would impose substantial burdens on their personal and professional lives. See, e.g.,

Stratmark, 2010 WL 5106442 at *4 (holding that distance from neighboring state Oklahoma

would impose costs on witnesses and therefore weighed in favor of transfer); (App. at 8, Decl. J.

Areen ¶ 4 (explaining that Professor Areen regularly teaches classes in the District of Columbia);

id. at 11, Decl. K. Conry ¶ 6 (explaining that Mr. Conry is responsible for oversight of the Law

Center’s emergency management and public safety).) 2/ Holding the trial in Washington, D.C.

would also be more convenient for Mr. Aleinikoff, both for various personal reasons and because

his work typically brings him there 4 or 5 times per year. (See App. at 5, Decl. of A. Aleinikoff ¶

5.) As for the convenience of President DeGioia, it goes without saying that requiring the

heavily-scheduled President of a major University with a multitude of undergraduate and

graduate schools to travel to Texas for trial would pose substantial burdens on him. See

Kirschner Bros. Oil, Inc. v. Pannill, 697 F. Supp. 804, 807 (D. Del. 1988) (granting transfer in

part because three key party witnesses worked and resided in the proposed transferee forum and

that transferring the case would allow them to “pay greater attention to corporate business

matters”).

Granted, transferring the case to the District of Columbia would require one person (Mr.

Ginsburg) to travel to the District of Columbia from Dallas or elsewhere. But denying a transfer 2/ According to Google Maps, it also appears that of the three potential non-party witnesses of whom Georgetown is aware, two of them—Ms. Matheron in Connecticut and Mr. Seifert in Florida—would have further to travel to trial were the case to remain in Texas and are more likely to be willing to testify in person at trial in the District of Columbia. Moreover, of the three, Ms. Matheron had the most interaction with Mr. Ginsburg, is therefore most likely to be a witness, and lives much closer to Washington, D.C. than to the Northern District of Texas. (See App. at 11, Decl. of K. Conry ¶ 5.)


12

would impose the same cost multiple times over on many current and former Georgetown

employees. See Busch, 2006 WL 1222031, at *5. Transferring the case would prevent much of

this unnecessary and asymmetric cost and would impose a relatively light burden on Mr.

Ginsburg, who has regularly traveled to the District of Columbia for a number of reasons over

the years, and for years even owned real property in the District of Columbia. See Gootnick v.

Lighter, No. C 05-02787 SI, 2005 WL 3079000, *6 (N.D. Cal. Nov. 16, 2005) (unpublished)

(“Plaintiffs argue that because two of the defendants are corporations, it would not serve justice

to require plaintiffs to travel to Hawaii to litigate their claims. However, plaintiffs are both

successful entrepreneurs who voluntarily entered into investment deals with the defendant and

several Hawaiian development projects.”).

Overall, the very important factor of witness convenience overwhelmingly favors

transferring the case to the District of Columbia.

B. The Public Interest Factors Support Transfer

The “public interest factors” are: “(1) the administrative difficulties flowing from court

congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity

of the forum with the law that will govern the case; and (4) the avoidance of unnecessary

problems of conflict of laws of the application of foreign law.” Volkswagen, 371 F.3d at 203

(citation omitted). Here, the first three factors all favor a transfer—the District of Columbia is

less congested than the Northern District of Texas, this is in essence a local controversy between

a D.C. University and one of its alumni, and a court in the District of Columbia is likely to be

more familiar with applicable law.


13

1. Relative court congestion supports transfer When, as here, case statistics reveal that the court to which a transfer is requested is less

congested than the court in which the case is pending, this factor will favor transfer. See

Stratmark, Ltd. v. Cross Mediaworks, Inc., 3:10-CV-0780-L, 2010 WL 5106442, *5 (N.D. Tex.

Dec. 14, 2010) (concluding that the factor weighed in favor of a transfer when proposed district

to which the case would be transferred had more newly-filed, pending cases and actions per

judgeship than present forum); Busch v. Robertson, 2006 WL 1222031, *6 (concluding the

congestion factor weighed in favor of transfer when the proposed district to which the case

would be transferred had reported fewer cases than the present forum).

Here, for the most recent twelve month period, the Northern District of Texas had

approximately 289% more filings, 215% more cases pending, 3 fewer judgeships, and

approximately 374% more civil filings and 269% more pending cases per judgeship than the

District of Columbia. Compare App. at 3, Texas Northern, U.S. District–Judicial Caseload

Profile (reflecting 8,181 filings, 7,536 pending, 12 judgeships, 565 civil filings per judgeship,

and 628 pending cases per judgeship), with App. at 2, District of Columbia, U.S. District Court–

Judicial Caseload Profile (2,827 filings, 3,495 pending, 15 judgeships, 151 civil filings per

judgeship, and 233 pending cases per judgeship). Docket congestion in Dallas supports a

transfer to the District of Columbia.

2. The local interests in deciding localized disputes at home supports transfer

At core, this dispute is a local controversy about whether a Washington, D.C. university

complied with a naming condition in a Gift Agreement that was negotiated in Washington, D.C.

for the naming of a building built in Washington, D.C. for the benefit of the university’s

Washington, D.C. students, faculty, and staff. Because local disputes are better decided where


14

they arise, this factor weighs in favor of transfer.

“[I]n cases which touch the affairs of many persons, there is reason for holding the trial in

their view and reach rather than in remote parts of the country where they can learn of it by

report only. There is a local interest in having localized controversies decided at home.” Sierra

Club v. Flowers, 276 F. Supp. 2d 62, 70 (D.D.C. 2003) (quoting Gulf Oil Corp. v. Gilbert, 330

U.S. 501, 509 (1947)). Courts consider a number of factors to determine whether a dispute is

local, see id., ordinarily starting with the location of the alleged wrong or injury. Busch, 2006

WL 1222031, at *6. Georgetown acknowledges that Texas may have some interest in this case

because Mr. Ginsburg is a Texas citizen. See, e.g., Busch, 2006 WL 1222031, at *6. But for at

least three reasons, that interest is attenuated here and this case is at bottom a local dispute

centered in the District of Columbia.

First, the gravamen of Mr. Ginsburg’s contract claim is that Georgetown failed to honor a

condition to name for him a building located in the District of Columbia under a gift agreement

primarily negotiated there. See Envtl., Safety & Health Consulting Services, Inc. v. Magnablend,

Inc., No. CIV.A. 12-1751, 2012 WL 5493744, *2 (E.D. La. Nov. 13, 2012) (unpublished). As

such, the core injury about which Mr. Ginsburg complains occurred in the District of Columbia,

which weighs in favor of transfer. See Frederick v. Advanced Fin. Solutions, Inc., 558 F. Supp.

2d 699, 705 (E.D. Tex. 2007) (concluding that this factor weighed in favor of a transfer when a

“substantial portion” of any alleged breach of contract would have occurred in the requested

transfer forum); see also Koehring Co. v. Hyde Construction Co., 324 F.2d 295, 296 (5th Cir.

1963) (reversing district court’s denial of transfer in part because the requested transfer was to

the location of the alleged injury); Magnablend, Inc., 2012 WL 5493744, at *2–3 (concluding

that the public interest factor weighed in favor of transfer over plaintiff’s objection that the


15

forum had an interest in protecting the contractual rights of its citizens when the contract arose

out of services rendered in another district and the contacts and communications giving rise to

the dispute occurred in the other district). 3/

Second, Mr. Ginsburg’s claims are predicated upon an ongoing pattern of alleged

misrepresentations on the part of Georgetown. (E.g., Compl. ¶ 30 (“Despite Georgetown’s

continued assurances . . . .”) Georgetown denies that it made any misrepresentations to Mr.

Ginsburg. But the majority of any representations Georgetown made to Mr. Ginsburg, however

characterized, would have been made in the District of Columbia where the relationship between

the parties was centered, and where, parenthetically, Mr. Ginsburg owned residential property

from 2006 to 2010. (See Countercl. ¶ 10.) For example, Georgetown is aware of at least nine

different meetings that have taken place in Washington, D.C. since 2000 between Mr. Ginsburg

and just three of its employees. (See App. at 4–5, Decl. of A. Aleinikoff ¶ 4 (describing 5

meetings with Mr. Ginsburg in the District of Columbia); id. at 7–8, Decl. J. Areen ¶ 3

(describing 6 meetings with Mr. Ginsburg in the District of Columbia); id. at 9–10, Decl. K.

Conry ¶ 4 (describing 7 meetings with Mr. Ginsburg in the District of Columbia). 4/) No doubt

there were additional meetings in the District of Columbia during that period with other

Georgetown employees. This demonstrates not only the probable location of any alleged injury,

3/ The fundamental injury about which Mr. Ginsburg complains (the failure to name a building for him located in Washington, D.C.), the place where Mr. Ginsburg and Georgetown’s relationship was centered (Washington, D.C.), and the nature of the transaction at issue (a charitable gift for the benefit of Georgetown’s Washington, D.C. students, faculty, and staff), distinguish this case from one in which it is impossible to say the local interests of one forum or the other predominate. Cf. Sabre Technologies, L.P. v. TSM Exhibits, Inc., 3:09-CV-0392-L, 2010 WL 3855316 (N.D. Tex. Sept. 29, 2010) (unpublished) (concluding the “[alleged] injury arose from an ongoing series of transactions and [alleged] misrepresentations, making it impossible to conclude that local interests favor trial in one setting as opposed to another.”). 4/ Typically more than one of the declarants met with Mr. Ginsburg in the referenced meetings.


16

but also that the District of Columbia has a strong interest in this case, and supports a transfer.

Cf. Doe v. Corp. of The Ass’n of the Presiding Bishop of The Church of Jesus Christ of Latter-

Day Saints, 08-CV-371-SU, 2009 WL 2132722, *4 (D. Or. July 10, 2009) (“Even though

Plaintiff alleges in his Complaint that two instances of abuse occurred in Oregon, the Magistrate

Judge correctly concluded Idaho has a more significant interest and relationship with this case.”).

Third, Mr. Ginsburg seeks to recover a charitable donation given for the benefit of a

known class of beneficiaries—Georgetown Law Center students, faculty, and staff—who are

resident at Georgetown’s campus in the District of Columbia. Cf. TGI Friday’s Inc. v. Great Nw.

Restaurants, Inc., 652 F. Supp. 2d 750, 762–63 (N.D. Tex. 2009) (concluding that the local

interest factor weighed in favor of a transfer where the dispute concerned restaurants located in

the transferee forum because the services provided by the restaurants and commerce generated

was of significant interest to that forum); Sierra Club, 276 F. Supp. 2d at 71 (concluding that

Florida had a local interest in dispute over the EPA’s issuance of mining permits in the

Everglades).

In sum, this controversy concerns a Georgetown alumnus’s claims that Georgetown

failed to name a building situated in Washington, D.C. after him allegedly in violation of a

condition of a gift he gave for the benefit of Georgetown and its students, faculty, and staff. This

dispute is, at bottom, a District of Columbia controversy that should be tried in the District of

Columbia. Cf. U.S. ex rel. Thomas v. Siemens AG, No. 1:04-CV-116, 2009 WL 1657429, *7

(D.V.I. June 12, 2009) (unpublished) (considering the relationship of the respective communities

from which the jurors are required to serve to the occurrences giving rise to the case and

concluding that the citizens of one state had the greater interest based on the “location of the

headquarters of Defendant Siemens Medical Solutions USA, Inc., the residence and employment


17

of the many witnesses, and the primary location of the negotiation of the federal contracts at

issue in that forum. Consequently, the citizens of that forum should bear the responsibility for

jury duty”).

3. Familiarity of the forum with the law that will govern is neutral Georgetown is confident that a court in either the Northern District of Texas or the

District of Columbia is capable of applying the appropriate state law. Thus this factor is neutral.

CONCLUSION

For the foregoing reasons, defendant Georgetown University respectfully requests that

this Court enter an order transferring this case to the United States District Court for the District

of Columbia.





The undersigned certifies that the foregoing document was filed electronically on April 9th, 2013, in compliance with the Court’s Standing Order Designating Case for Enrollment in the Electronic Case Files System, and has been served on all counsel by electronic service. /s/ Bruce D. Oakley Bruce D. Oakley


1


DALLAS DIVISION



DEFENDANT GEORGETOWN UNIVERSITY’S MOTION TO TRANSFE R

Under 28 U.S.C. § 1404(a), defendant Georgetown University respectfully moves this

Court for an order transferring the above-captioned case to the United States District Court for

the District of the District of Columbia. For all the reasons set forth in the Brief and Appendix,

which are incorporated herein by reference, the requested transfer would clearly be for the

convenience of the parties and witnesses and in the interests of justice.

WHEREFORE, defendant Georgetown University respectfully requests that this Court

transfer this action to the United States District Court for the District of the District of Columbia.


2





The undersigned certifies that the foregoing document was filed electronically on April 9th, 2013, in compliance with the Court’s Standing Order Designating Case for Enrollment in the Electronic Case Files System, and has been served on all counsel by electronic service. /s/ Bruce D. Oakley Bruce D. Oakley


CERTIFICATE OF CONFERENCE

I hereby certify that on April 4, 2013, William D. Nussbaum had an e-mail conference with John T. Cox, an attorney representing Plaintiff Scott K. Ginsburg, to request consent to the Defendant Georgetown University’s Motion to Transfer. Mr. Cox refused to consent.

/s/ Bruce D. Oakley Bruce D. Oakley


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION



[PROPOSED] ORDER

This matter comes before the Court upon the motion of Defendant Georgetown

University’s Motion to Transfer this case under 28 U.S.C. § 1404(a) to the United States District

Court for the District of Columbia. For good cause shown, the Court hereby GRANTS

Defendant’s motion.

It is hereby ORDERED.

ENTERED, this ____ day of April, 2013. ____________________________________ The Honorable Sam A. Lindsay United States District Judge



DALLAS DIVISION



APPENDIX IN SUPPORT OF DEFENDANT GEORGETOWN UNIVERS ITY’S

MOTION TO TRANSFER Defendant Georgetown University hereby submits and file this Appendix in Support of

its Motion to Transfer as provided by Local Rule 7.1(i).


Respectfully Submitted, /s/ Bruce D. Oakley Bruce D. Oakley State Bar No. 15156900 HOGAN LOVELLS US LLP 700 Louisiana Street Suite 4300 Houston, TX 77002 Tel: (713) 632 1400 Fax: (713) 632 1401 [email protected] Counsel for Defendant Georgetown University


CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically on April 9th, 2013, in compliance with the Court’s Standing Order Designating Case for Enrollment in the Electronic Case Files System, and has been served on all counsel by electronic service.

/s/ Bruce D. Oakley ________________ ____________ Bruce D. Oakley


TABLE OF CONTENTS

U.S. Courts Case Management Statistics Excerpts ..........................................................................1

Professor T. Alexander Aleinikoff Declaration ...............................................................................4

Professor Judith Areen Declaration .................................................................................................7

Mr. Kevin Conry Declaration ..........................................................................................................9


United States Courts

Federal Case Management Statistics

(Sept. 2012)1

Excerpts

United States District Court for the District of

Columbia

Northern District of Texas

1 http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics/district-courts-september-2012.aspx

000001


DISTRICT OF COLUMBIAU.S. District Court — Judicial Caseload Profile

Sep 302007

Sep 302008

Sep 302009

Sep 302010

Sep 302011

Sep 302012

OverallCaseloadStatistics

Filings ¹ 2,996 3,135 3,125 3,056 3,238 2,827Terminations 3,138 3,042 3,141 3,129 3,087 3,102Pending 4,482 4,594 4,498 4,378 4,459 3,495

Percent Change in Total Filings Current Year Over Earlier Year 5.6 9.8 9.5 7.5 12.7

Number of Judgeships 15 15 15 15 15 15

Vacant Judgeship Months ² 8.2 17.0 33.0 45.0 24.2 16.1

Actionsper

Judgeship

Filings

Total 200 209 208 204 216 188

Civil 161 163 171 155 166 151CriminalFelony 30 37 28 37 36 27SupervisedReleaseHearings 9 10 9 11 13 10

Pending Cases 299 306 300 292 297 233

Weighted Filings ² 245 247 255 253 245 238

Terminations 209 203 209 209 206 207

Trials Completed 13 13 10 10 11 9

MedianTime

(Months)

From Filing toDisposition

CriminalFelony 14.3 17.8 12.7 12.3 10.9 13.5

Civil ² 9.0 8.5 9.0 7.9 7.2 9.2From Filing to Trial ²

(Civil Only) 44.0 38.7 40.0 40.1 39.7 31.2

Other

Number (and %)of Civil Cases

Over 3 Years Old ²40814.8

47316.7

41014.6

41816.0

49018.2

44817.9

Average Numberof Felony Defendants

Filed per Case 1.4 1.4 1.4 1.5 1.5 1.4

Jurors

Avg. Present for Jury Selection 105.6 90.6 93.9 106.5 71.6 57.3Percent Not Selected or Challenged 63.2 56.0 59.1 65.5 58.0 46.5

12Month Periods Ending

NumericalStandingWithin

U.S. Circuit

83

90

86

93

84

89

88

91

91

82

52

54

83

Type of Total A B C D E F G H I J K L

Civil 2,264 32 37 339 18 40 133 159 170 103 411 20 802

Criminal ¹ 404 3 196 11 26 52 22 26 2 10 8 23 25

¹ Filings in the "Overall Caseload Statistics" section include criminal transfers, while filings by "Nature of Offense" do not.² See "Explanation of Selected Terms."

2012 Civil Case and Criminal Felony Defendant Filings by Nature of Suit and Offense

NOTE: Criminal data in this profile count defendants rather than cases and therefore will not match previously published numbers.

000002


TEXAS NORTHERNU.S. District Court — Judicial Caseload Profile

Sep 302007

Sep 302008

Sep 302009

Sep 302010

Sep 302011

Sep 302012

OverallCaseloadStatistics

Filings ¹ 5,751 5,428 5,654 6,035 6,588 8,181Terminations 5,928 5,519 5,492 5,592 5,942 6,004Pending 4,399 4,355 4,502 4,965 5,365 7,536

Percent Change in Total Filings Current Year Over Earlier Year 42.3 50.7 44.7 35.6 24.2

Number of Judgeships 12 12 12 12 12 12

Vacant Judgeship Months ² 0.0 0.1 0.0 0.0 0.0 0.0

Actionsper

Judgeship

Filings

Total 479 452 471 503 549 682

Civil 351 338 360 383 436 565CriminalFelony 105 90 86 92 86 91SupervisedReleaseHearings 23 24 25 28 26 26

Pending Cases 367 363 375 414 447 628

Weighted Filings ² 470 436 447 483 503 561

Terminations 494 460 458 466 495 500

Trials Completed 19 22 23 26 23 22

MedianTime

(Months)

From Filing toDisposition

CriminalFelony 6.9 7.4 6.9 5.8 6.4 6.9

Civil ² 6.8 7.4 7.0 6.5 6.6 7.1From Filing to Trial ²

(Civil Only) 19.4 24.1 21.0 20.3 20.2 19.9

Other

Number (and %)of Civil Cases

Over 3 Years Old ²421.4

591.9

471.4

892.4

591.5

811.3

Average Numberof Felony Defendants

Filed per Case 1.5 1.5 1.6 1.6 1.6 1.5

Jurors

Avg. Present for Jury Selection 43.2 45.0 43.7 42.9 36.1 42.7Percent Not Selected or Challenged 40.2 41.7 39.5 37.8 35.8 38.2

12Month Periods Ending

NumericalStandingWithin

U.S. Circuit

6 2

13 3

6 1

48 4

45 4

18 3

27 4

41 4

37 6

16 3

20 2

18 4

5 1

Type of Total A B C D E F G H I J K L

Civil 6,776 235 2,110 1,366 17 631 277 562 197 168 527 8 678

Criminal ¹ 1,087 37 335 195 143 135 36 65 51 40 12 15 23

¹ Filings in the "Overall Caseload Statistics" section include criminal transfers, while filings by "Nature of Offense" do not.² See "Explanation of Selected Terms."

2012 Civil Case and Criminal Felony Defendant Filings by Nature of Suit and Offense

NOTE: Criminal data in this profile count defendants rather than cases and therefore will not match previously published numbers.

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