winston motion to transfer

1UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ERICA KINSMAN, )))))))))

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

Plaintiff,

v.

JAMEIS WINSTON,

Defendants.

DEFENDANTS MOTION TO TRANSFER VENUE

Pursuant to 28 U.S.C. 1404(a), Defendant Jameis Winston respectfully moves the

Court to transfer this matter to the Tallahassee Division of the Northern District of Florida.

As explained in the following Memorandum of Law, such transfer serves the convenience of

the parties, the convenience of the witnesses, and the principles of convenience, fairness,

judicial economy, and the interests of justice.

WHEREFORE, Mr. Winston respectfully requests that the Court transfer this matter

to the Tallahassee Division of the Northern District of Florida.

DATED: May 8, 2015 Respectfully submitted,

By: /s/ John F. MeyersJohn F. MeyersFlorida Bar No. [email protected] & THORNBURG LLP3475 Piedmont Road, NE, Suite 1700Atlanta, Georgia 30305-3327Telephone: 404.846.1693Facsimile: 404.264.4033

Attorney for Defendant Jameis Winston

Case 6:15-cv-00696-ACC-GJK Document 8 Filed 05/08/15 Page 1 of 26 PageID 188

2UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ERICA KINSMAN, )))))))))

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

Plaintiff,

v.

JAMEIS WINSTON,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTSMOTION TO TRANSFER VENUE

This lawsuit arises out of a consensual sexual encounter and other series of events, all

of which occurred in the Northern District of Florida. Plaintiff claims that the sexual

encounter was not consensual. All of the relevant sources of proof necessary to resolve this

dispute are located in the Northern District of Florida. Everythingthe witnesses, the

investigating officers, the medical personnel, the Tallahassee Police Department and the

State Attorneys Office (the two entities that investigated Plaintiffs allegations and declined

to charge Defendant, Jameis Winston, with any crime relating to the sexual encounter), the

physical locations where various events occurred, and all the tangible evidenceis in the

Northern District.

This case has no connection to the Middle District. Though Plaintiff relocated to the

Middle District after the events forming the basis for her claims occurred, Plaintiff is forum

shopping. Her claims have been rejected six (6) different times. Plaintiffs selection of

venue is a litigation ploy designed to give her a blank slate for her seventh bite at the apple.


3This case should be transferred to the Northern District of Florida pursuant to 28

U.S.C. 1404(a).

STATEMENT OF FACTS

I. Neither the Events Alleged nor Mr. Winston Has Any Connection to this Venue.

Plaintiffs Complaint arises entirely out of events that took place at or near Florida

State University (FSU) in Tallahassee, in the Northern District of Florida. The night out at

Potbellys bar where Plaintiff met Mr. Winston and gave her his number, the sexual

encounter at Mr. Winstons apartment, the scooter ride with Mr. Winston to Plaintiffs

dormitory after the sexual encounter, the subsequent medical examination, and Plaintiffs

subsequent communications and inconsistent statements all took place on or near the FSU

campus. Plaintiffs Complaint does not and cannot connect the events she has alleged with

the forum she has chosen.1 See generally Exh. 1, Compl. Nor has Plaintiff sought to connect

this forum with Mr. Winston, whom she admits was a student at FSU during the relevant

period at issue in the dispute and whom she admits was not a resident of this District at the

time of filing. See id. at 1 4. Indeed, Plaintiff implicitly concedes that this forum has no

connection with this case. Her statements on jurisdiction and venue allege only a general

connection to the State of Florida. Id. at 1-2 5-6.

1 Plaintiff originally filed her Complaint in state court in Orlando (Orange County), and the action has sincebeen removed. See Docket Entry Nos. (Dkt.) 1 & 1-1 (Compl.). At no time has Plaintiff explained herdecision to file suit in Orlando.


4II. Nearly All of the Possible Witnesses Are Located in the Northern District ofFlorida.

A. The Vast Majority of Plaintiffs Witnesses Are in the Northern District.

In her Complaint and in her FSU Investigative Hearing materials, Plaintiff has

identified 32 possible witnesses or groups of witnesses in this case,2 and 26 of those 32 are

located in or near Tallahassee, in the Northern District of Florida:

1. Marcus Jordan (Exh. 1, Compl. 4 19-21; Exh. 2, Plaintiffs Post-Hearing Brief(PH Br.) 7, 19)

2. Monique Kessler (Exh. 1, Compl. 4 19, 22; Exh. 2, Plaintiffs PH Br. 7)

3. Plaintiffs friend Ashley (Exh. 3, Defendants PH Br. 14 & n.5, citingPlaintiffs statements)

4. Chris Casher (Exh. 1, Compl. 4 21, 29-30; Exh. 2, Plaintiffs PH Br. 3-5, 13-21)

5. Ronald Darby (Exh. 1, Compl. 4-5 22, 29, 31-32; Exh. 2, Plaintiffs PH Br. 3-5, 13-21)

6. Jenna Weisberg (Exh. 1, Compl. 6-7 38)

7. Potbellys bartender (Exh. 3, Defendants PH Br. 21, citing Plaintiffs statements)

8. Taxicab driver (Exh. 1, Compl. 4 23-24)

9. Legacy Suites security guard (Exh. 2, Plaintiffs PH Br. 15, 16)

10. Sexual Assault Nurse Examination nurse Kathy Walker (Exh. 1, Compl. 7 41;Exh. 2, Plaintiffs PH Br. 6, 8)

11. Other unidentified hospital personnel (Exh. 1, Compl. 7-8 41, 44)

12. Victim Advocate Sarah Groff (Id. at 7 43)

13. Victim Advocate Angela Chatfield (Id. at 7 43)

2 Defendant notes that some of the testimony that Plaintiff may wish to elicit from some of these witnesses maybe inadmissible. This pleading constitutes neither an admission that such testimony is admissible nor a waiverof such an evidentiary challenge.


514. FSU police officer Dinorah Harris (Id. at 7 39-41)

15. FSU police officer Clayton Fallis (Id. at 7 42)

16. FSU police detective Scott Angulo (Id. at 2, 8 9, 46)

17. Other unidentified police officers and personnel (Id. at 7 39-42)

18. States Attorney Georgia Cappleman (Exh. 2, Plaintiffs PH Br. 20)

19. State investigator Jason Newlin (Id. at 20)

20. Other State investigators and personnel (Id. at 20)

21. FSU Investigator Sarah Mirkin (Id. at 3, 12, 21)

22. FSU administrator Rachel Bukanc (Id. at 13, 18)

23. Other unidentified FSU investigators or administrators (Id., throughout)

24. FSU Sr. Assoc. Dir. of Athletics Monk Bonasorte (Exh. 4, Plaintiffs Witness Listat FSU Code of Conduct Hearing; Exh. 1, Compl. 3 12)

25. Head Football Coach Jimbo Fischer (Id.)

26. Other Athletic Dept. personnel (Id.)

None of the six remaining witnesses is in this Courts Orlando Division, where

Plaintiff has brought this action.3 Plaintiffs boyfriend, Jamal Roberts, lives in Ohio. Exh. 2,

3 Plaintiff has already disclosed the list of witnesses she may wish to call in the FSU Case. See Exh. 9. Thisdocument represents a blatant attempt by Plaintiffs lawyers to pad the witness list with redundant and irrelevanttestimony, solely for the sake of preserving their preferred venue. It further misrepresents the location ofcertain witnesses (by means of statements by Plaintiffs lawyers, who lack personal knowledge on the subject),and improperly seeks to speculate on where certain individuals will reside in the future. Such speculation isirrelevant and improper because venue is set by the facts as they existed at the time of filing. Complaint forExoneration from or Limitation of Liab. of Tampa Bay Marine Towing & Serv., Inc., 2010 WL 1552057, at *2(M.D. Fla. Apr. 12, 2010) (addressing 1404(a) and related venue provisions) (citing Flowers Indus., Inc. v.FTC, 835 F.2d 775, 776 n.1 (11th Cir.1987) (giving no weight to [partys relocation] because venue must bedetermined based on the facts at the time of filing)); see also Da Cruz v. Princess Cruise Lines, Inc., 2000 WL1585695, at *3 (N.D. Cal. Oct. 12, 2000) (refusing to consider a witness location in venue analysis becausefuture location and import of purported witness was too speculative; plaintiffs declarations are toospeculative because the state of the facts at the time the complaint was filed are the operative facts fordetermining venue). Conversely, Mr. Winston provides Exh. 8, which (1) indicates the witnesses who willhave the greatest impact on this case, (2) denotes their locations at the time of filing, and (3) relies on record


6Plaintiffs PH Br. 19. Another witness, Bria Henry, lives in an unspecified location. Exh. 1,

Compl. 6 37; Exh. 2, Plaintiffs PH Br. 7, 19. Although four possible witnessesPlaintiff,

her mother and father, and Mr. Winstonare in the Middle District, they are in the Tampa

Division. They have no connection with Orange County or the Orlando Division. See id. at

2 6.

B. All of Defendants Witnesses Are in the Northern District.

Mr. Winstons key witnesses, such as University of Florida-Gainesville forensic

pathologist, Dr. Bruce Goldberger (Exh. 3, Defendants PH Br. 19), Plaintiffs FSU

classmate Oswaldo (id. at 27), other FSU students that Plaintiff contacted after the sexual

encounter (id. at 25), witnesses at and outside of Potbellys (id. at 15), FSU personnel who

communicated with Plaintiff and her counsel (id. at 4-5), first responders (id. at 27),

investigating officers from FSU (id. at 3-7, 29-30, etc.), investigating officers from the

Tallahassee Police Department (id. at 8-10, 18, 29-32, etc.), and investigating officers from

the State Attorneys Office (id.) are located in the Northern District of Florida.

III. All of the Relevant Evidence Is Located in the Northern District of Florida.

Plaintiffs case and Mr. Winstons defense will rely on thousands of pages of witness

statements, transcripts, investigative reports, written correspondence, and other tangible

evidence, such as the physical location of various events, including Potbellys (the bar where

Plaintiff and Mr. Winston met and exchanged phone numbers), the outside area in front of

Potbellys (where students and taxi cabs gathered), Mr. Winstons apartment (where the

sexual encounter occurred), the route Mr. Winston travelled on his motor scooter (when he

materials, including prior representations made by Plaintiff, not on unsubstantiated, self-serving statementsfrom her attorneys that designed to aid blatant forum shopping.


7gave Plaintiff a ride home after they had sex), and the pathway Plaintiff walked along to her

dormitory (after Mr. Winston dropped her off at an adjacent building). All of this evidence is

located on or around FSUs campus. Additional tangible evidence includes tangible medical

evidence, medical reports, toxicology reports, investigative records, investigative video,

investigative audio recordings, FSU investigation records, FSU student records, surveillance

footage, electronic records, and written communications. All of this evidence is located in

the Northern District of Florida and was created in the Northern District of Florida.

ARGUMENT

Plaintiff brought this case in a forum that has no connection to her suit or its parties.

This action should be transferred to the Tallahassee Division of the Northern District of

Florida, where all of events relevant to this suit occurred, and where nearly all the evidence

and all key witnesses are located.

I. This Case Should Be Transferred to the Northern District of Florida Pursuant to28 U.S.C. 1404(a).

The federal transfer statute provides that, [f]or the convenience of parties and

witnesses, in the interest of justice, a district court may transfer any civil action to any other

district or division where it might have been brought . . . . 28 U.S.C. 1404(a). [T]he

purpose of the section is to prevent the waste of time, energy and money and to protect

litigants, witnesses and the public against unnecessary inconvenience and expense. Van

Dusen v. Barrack, 376 U.S. 612, 616 (1964) (noting that [s]ection 1404(a) reflects an

increased desire to have federal civil suits tried in the federal system at the place called for in

the particular case by considerations of convenience and justice) (quotation omitted). In

deciding 1404(a) motions, this Court first addresses the threshold question of whether the


8suit could have been brought in the transferee forum, and then undertakes a multi-prong

analysis of various considerations of convenience, fairness, and judicial economy. See

Suomen Colorize Oy v. DISH Network L.L.C., 801 F. Supp. 2d 1334, 1337 (M.D. Fla. 2011);

Watson v. Cmty. Educ. Ctrs., Inc., 2011 WL 3516150, at *4-*6 (M.D. Fla. Aug. 11, 2011).

A. This Action Could Have and Should Have Been Brought in the NorthernDistrict of Florida.

This case could have been brought in the Northern District of Florida. The federal

venue statute, 28 U.S.C. 1391, makes clear that a plaintiff cannot forum shop by

capriciously filing suit in whichever district or division it prefers. It prescribes the criteria a

plaintiff must meet to properly maintain a suit in a given venue. See 28 U.S.C. 1391

(enumerating the venue requirements for all civil actions brought in district courts of the

United States). Section 1391(b)(2) provides that an action may be brought in . . . a judicial

district in which a substantial part of the events or omissions giving rise to the claim

occurred. In the instant action, all of the alleged events . . . giving rise to th[is] claim

occurred in the Northern District. Id. This case, therefore, could have been brought in the

Northern District of Florida. See Suomen, 801 F. Supp. 2d at 1337.

Indeed, had this case been filed initially in federal court, it could not have been

brought in the Middle District of Florida. Proper venue in a civil action pursuant to

1391 requires that either (1) the defendant reside[ ] there, (2) a substantial part of the

events or omissions giving rise to the claim occur[ ] there, or (3) venue be laid where the

defendant is subject to personal jurisdiction, if no other district could otherwise provide

venue. 28 U.S.C. 1391(b).


9As discussed above, proper venue is determined by examining the relevant factors at

the time the complaint was filed. And as detailed above, (1) Defendant was not a resident of

the Middle District of Florida at the time of filing, (2) all of the alleged events giving rise to

this claim occurred in the Northern District, and (3) the Northern District can fully provide

proper venue for this action. This action therefore could not have been brought in this

District. Indeed, this Court has already reached the same conclusion in Plaintiffs separate

but related lawsuit against FSU. See Kinsman v. The Fla. State Univ. Bd. of Trustees

(Kinsman v. FSU or the FSU Case), No. 15-cv-00016 (M.D. Fla. Apr. 27, 2015) (order

transferring case to Northern District of Florida, finding that Plaintiffs choice of venue was

improper under 28 U.S.C. 1391; the Court accepted FSUs primary argument of improper

venue under 1391, and thus did not reach its alternative argument for transfer under

1404(a)) (decision provided here as Exhibit 5). Because Plaintiff could not have initiated

this action in the Middle District,4 transfer under 1404(a) is appropriate.

B. The Balance of Relevant Factors Supports Transfer to the NorthernDistrict.

When evaluating a motion to transfer venue, the court considers the following factors

and determines if transfer is appropriate based on the totality of the circumstances:

(1) the convenience of the witnesses;

(2) the location of relevant documents and the relative ease of access to sources ofproof;

(3) the convenience of the parties;

4 Since this case comes to this Court via removal, proper grounds for transfer are raised under 1404(a), not 1391. See Hollis v. Florida State Univ., 259 F.3d 1295, 1300 (11th Cir. 2001). This Courts transfer of theFSU Case is useful and instructive in its consideration of Plaintiffs related case against Mr. Winston, whicharises out of the same facts and circumstances as her case against FSU, and should be transferred.


10

(4) the locus of operative facts;

(5) the availability of process to compel the attendance of unwilling witnesses;

(6) the relative means of the parties;

(7) a forums familiarity with the governing law;

(8) the weight accorded a plaintiffs choice of forum; and

(9) trial efficiency and

[10] the interests of justice.

Watson v. Cmty. Educ. Ctrs., Inc., 2011 WL 3516150, at *2 (M.D. Fla. Aug. 11, 2011)

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

below, the totality of the circumstances establish that this case should be transferred the

Northern District of Florida.

1. Nearly all of the key witnesses are in Tallahassee.

Transfer to the Northern District would maximize witness convenience, while

maintaining this action in the Middle District would create significant and unnecessary

burdens for the vast majority of the witnesses. All key nonparty witnesses in this case are

located in or near Tallahassee. It would be far more convenient and economical for them to

participate in discovery, court hearings, and trial in the Northern Districts Tallahassee

Division. Indeed, a substantial number of the key witnesses are students or representatives of

FSU, the State Attorneys Office, the Tallahassee Police Department, and Tallahassee

Memorial Hospital, all of which are within two miles of the Tallahassee Division courthouse

and approximately 250 miles from the Orlando Division courthouse. Conversely, only four


11

potential witnesses are in the Middle District, and none are in the Orlando Division or even

within 70 miles of Orlando.

The location of key witnesses weighs heavily in favor of transfer. See, e.g.,

Brandywine Commcns Tech., LLC v. Cisco Sys., Inc., 2012 WL 8281188, at *5 (M.D. Fla.

Mar. 26, 2012) (granting transfer in part because most key witnesses were in transferee

district and the burden and expense for Defendant to transport witnesses to [Orlando] for

this litigation render it an inconvenient forum). In weighing this issue, not all witnesses are

equal, and the Court must focus on the convenience of the key witnesses. Watson, 2011

WL 3516150, at *4 (declining to consider location of certain proffered witnesses because

they did not participate in the operative events; Plaintiff has failed to show how the

testimony of these witnesses is material to the primary issues in this case) (emphasis added).

All of the key witnesses are in the Northern Districteyewitnesses, local and state police,

local, state and university investigators, medical personnel, and forensic analysts are in the

Northern District. This factor therefore weighs heavily in favor of transfer. See

Cellularvision Tech. & Telecomms., L.P. v. Cellco Pship, 2006 WL 2871858 (S.D. Fla. Sept.

16, 2006) ([C]onvenience of non-party witnesses is an important, if not the most

important, factor in determining whether a motion for transfer should be granted.)

(emphasis added) (quotation omitted). Since nearly all key witnesses are in the Northern

District, this case should be transferred to the Northern District.


12

2. The documents, forensics, recordings, and physical locations are inTallahassee, and they cannot easily be shared or transported toOrlando.

As explained above, the physical evidence is in the Northern District. Even in the

age of electronic discovery, considerations of physical evidence remain meaningful in

1404(a) analysis. Large Audience Display Sys., LLC v. Tennman Prods., LLC, 2011 WL

1235354, at *4 (E.D. Tex. Mar. 30, 2011) (granting transfer in part because Defendants

allege[d] that the bulk of documents and other sources of proof were located in the

transferee district) (citing In re Volkswagen of Am., Inc., 545 F.3d 304, 316 (5th Cir. 2008)).

Thousands of pages of documents are in Tallahassee: hearing transcripts, investigative

reports, witness statements, written correspondence, transcripts from text messages,

transcripts from twitter posts, and many other types of documents were created in

Tallahassee, are stored in Tallahassee, and can only be authenticated by witnesses located in

Tallahassee. Other tangible evidence located in the Northern District is critical to Mr.

Winstons effective defense. This evidence includes the rape kit, DNA swabs, blood

samples, toxicology samples, toxicology reports, medical examination reports, clothing,

surveillance footage, investigative recordings, and the physical location where relevant

events occurred. This evidence is located in Tallahassee and raises issues of immobility,

chain of custody, authentication, and spoliation that would impact the admissibility and

integrity of the evidence and therefore the integrity of these proceedings.

The physical evidence is in the custody and control of the FSU, Tallahassee Police

Department, the state attorneys office in Tallahassee, or other witnesses in the Northern

District. Indeed, Plaintiffs claims have already been litigated unsuccessfully three (3) times


13

pursuant to FSUs Code of Student Conduct and the requirements of Title IX of the

Education Amendments of 1972. The record from these proceedings is comprised

exclusively of evidence created and located in the Northern District. See generally Exh 2,

Plaintiffs PH Br.; Exh 3, Defendants PH Br. (describing physical evidence necessary to

adjudicate same key issues raised in this suit).

Both the nature of the evidence and its location in the Northern District mandates that

the case be transferred to the Northern District. See Suomen, 801 F. Supp. 2d at 1339 (noting

the import of the location of sources of documentary proof and other tangible materials, and

the ease with which the parties can transport them to trial and finding that the presence

of most evidence in the transferee district militates in favor of transfer) (quoting Trinity

Christian Ctr. of Santa Ana, Inc. v. New Frontier Media, Inc., 761 F. Supp. 2d 1322, 1327

(M.D. Fla. 2010)) (emphasis added) (quotation marks omitted); Clark v. Crews, 2014 WL

667825, at *2 (M.D. Fla. Feb. 20, 2014) (granting transfer from Tampa Division to

Jacksonville Division in part because Defendants argue[d] that almost all of the relevant

documents [and] . . . . the relevant medical records and other records related to [plaintiffs]

medical treatment were located in Jacksonville); Sessions v. Atl. Recording Corp., 2011 WL

3754601, at *4 (M.D. Fla. Aug. 11, 2011), rpt. and recommn adopted, 2011 WL 3809774

(M.D. Fla. Aug. 25, 2011) (granting transfer to Southern District in part because the

majority of the documents relating to the [facts] at issue are located there; rejecting

plaintiffs argument that defendants must demonstrate how it would be an undue burden for

[them] to produce those documents in the Middle District). These cases are directly on

point. This factor therefore strongly favors transfer.


14

3. Plaintiff has no connection to this forum.

Plaintiffs improper forum shopping is revealed by the fact that she has no connection

to the Orlando Division. Plaintiffs residence is in the Tampa Division and is much closer to

the Tampa courthouse than the courthouse in Orlando Division. In any event, her place of

residence is entitled to little weight because the [c]onvenience of the parties is practically

irrelevant to whether the motion to transfer should be granted. Cent. Money Mortgage v.

Holman, 122 F. Supp. 2d 1345, 1346 (emphasis added.). Transferring this action to the

Tallahassee Division will benefit both parties because then the action will be pending where

all of the evidence and nearly all of the key witnesses are located. See Brandywine, 2012

WL 8281188, at *5 (the burden and expense for Defendant to transport witnesses to

[Orlando] for this litigation render it an inconvenient forum). Accordingly, this factor

favors transfer.5

4. The locus of operative facts is Tallahassee.

The locus of operative facts also favors transfer. This factor refers to the specific

actions or omissions that gave rise to the cause of action. Watson, 2011 WL 3516150, at *5.

[O]nly the events that directly give rise to a claim are relevant. Bennett Engg Grp., Inc. v.

Ashe Indus., Inc., 2011 WL 836988, at *2 (M.D. Fla. Mar. 8, 2011) (quoting Jenkins Brick

Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir. 2003)) (emphasis added) (quotation marks

omitted). This factor favors transfer when most of the critical events occurred in the

transferee district. See Watson, 2011 WL 3516150, at *5-*6 (granting transfer where events

5 As this Court has recently determined in the FSU Case, any concerns with safety or fair trial in the transfereecourt must be raised after transfer. See Exh. 5 at 10 n.5 (The proper forum for resolving those concerns is thetransferee court.). Unlike her complaint in the FSU case, Plaintiffs Complaint here alleges no safety or fair-trial concerns.


15

relevant to most claims took place in transferee district but the record support[ed] [the]

contention that the fraudulent inducement occurred in transferor district). All of the

critical events in this matter occurred in the transferee district, the Northern District. See

Seal Shield, LLC v. Otter Prods., LLC, 2013 WL 6017330, at *3 (M.D. Fla. Nov. 13, 2013)

(granting transfer in part because [n]early all of the operative facts occurred in transferee

district).

Additionally, the location where the events giving rise to the dispute occurred is

especially important to 1404(a) analysis in this District. Its Local Rules instruct that suits

be maintained in the division most closely related to the claims. Cf. Bennett Engg, 2011 WL

836988, at *2 (M.D. Fla. Mar. 8, 2011) (locus of operative facts carries greater weight when

deciding a motion to transfer to another Division within the Middle District of Florida, as

evidenced by Local Rule 1.02(c)s requirement that actions be brought in the Division

encompassing the county or counties having the greatest nexus with the cause.) (quoting

M.D. Fla. Local Rule 1.02(c)).

There is no nexus between this case and the venue selected by Plaintiff. All of the

events described in Plaintiffs Complaint occurred on or around FSUs campus in

Tallahassee. See Exh. 1, Compl. 2-8 8-47.

Moreover, the complaints here and in the FSU Case rely on the same transactionthe

sexual encounter between Plaintiff and Mr. Winstonand Plaintiff pleads substantially

similar facts to support her claims in both cases. Accordingly, this Court essentially decided

the transfer issue in this case when transferred the FSU Case to the Northern District. This

Court has already determined that the Northern District is the appropriate venue for a lawsuit


16

based on the events pleaded Plaintiffs Complaint. See Exh. 5 at 3, Kinsman v. FSU, No. 15-

cv-00016 (M.D. Fla. Apr. 27, 2015) (reviewing the substantially similar facts pleaded in the

FSU case and finding that the claims are alleged to have occurred in the Northern District,

not the Middle District, and thus venue could not lie under 1391(b)(2)).

The locus of operative facts element of 1404(a) analysis is essentially the same as

1391(b)(2)s proper-venue rationale (venue is proper in a judicial district in which a

substantial part of the events or omissions giving rise to the claim occurred). See Watson,

2011 WL 3516150, at *3, 5 (examining 1391(b) language and its interpreting cases in

evaluating locus of operative facts under 1404(a); applying then-subsection (a)(2), text of

which was moved to subsection (b)(2) via 2011 amendments, see Pub.L. No. 112-63, 125

Stat. 763 202).

5. The process to compel witness attendance exists only in theTallahassee Division.

The standards for compulsory process require that the case be transferred to the

Northern District. Under Fed. R. Civ. P. 45(c)(1), this Court cannot compel the attendance of

any nonparty witnesses who live or work more than 100 miles from Orlando.6 As discussed

above, nearly all of the key witnesses in this case are in Tallahassee, which is approximately

250 miles from Orlando, well outside of the Courts reach. Conversely, if necessary, the

6 See Seal Shield, 2013 WL 6017330, at *4 (finding that this factor weighs strongly [in] favor of transferbecause several of the[ ] non-party witnesses were within 100 miles of transferee court but not transferorcourt); Colo. Boxed Beef Co. v. Coggins, 2007 WL 917302, at *4 (M.D. Fla. Mar. 23, 2007) (finding that thebalance of convenience weighs strongly in favor of transfer in part because Defendants will be unable tocompel the testimony of non-party witnesses that reside . . . more than 100 miles away from this Court);Osgood v. Disc. Auto Parts, LLC, 981 F. Supp. 2d 1259, 1265-66 (S.D. Fla. 2013) (applying 100-mile rule andfinding that it is likely that subpoenas will be required to ensure appearances of . . . . important non-partyeyewitnesses [that] are located in the Middle District, and that therefore the ability of process factor weighsin favor of transfer to from the Southern District to the Middle District).


17

Tallahassee Division can compel the attendance of these witnesses. Indeed, Plaintiffs

parents are the only witnesses that she has identified who are beyond Tallahassees 100-mile

radius but inside Orlandos. Other than facts relating to Plaintiffs failure to call 911 and

concealing the identity and race of her boyfriend, Plaintiffs parents are not competent to

testify to any fact that is relevant to the resolution of this dispute. And in cases where a

plaintiff has leaned on family witnesses to oppose transfer, this Court has discounted them as

irrelevant. See Osgood, 981 F. Supp. 2d at 1266 (declining to consider plaintiffs family in

analysis because of certainty that they would voluntarily attend trial).

6. The relative means of the parties has not been established and isirrelevant to the transfer question in this case.

Any difference in the parties relative means would have no bearing on the present

venue analysis, for at least three reasons.

First, the relative-means issue matters only insofar as it impacts the parties ability to

litigate the case; where most witnesses and evidence are in the transferee district, this

substantially lowers litigation costs and turns this factor in favor of transfer. See Gomez v.

Wells Fargo Bank, 2009 WL 1936790, at *3-*4 (D. Ariz. July 2, 2009) (granting transfer for

defendant multinational bank in case against defendant class of individual persons; finding

that litigation costs are reduced when venue is located near most of the witnesses . . . . and

near the location of documents likely to be at issue and therefore transfer to the center of

discovery . . . . [will] lessen the relative financial burdens of litigation, and reduce the

overall cost of litigation) (quoting Italian Colors Restaurant v. Am. Express Co., 2003 WL

22682482, at *5 (N.D. Cal. Nov. 10, 2003) (quotation marks omitted) (emphasis added).


18

Second, for Plaintiff to count this factor in her favor, she must showthrough

documentary evidencethat pursuing this claim in Tallahassee would cause her an undue

financial burden that she would not otherwise suffer in Orlando. As discussed above,

Plaintiff has not made and cannot make such a showing. See Cableview Commcns of

Jacksonville, Inc. v. Time Warner Cable Se. LLC, 2014 WL 1268584, at *25 (M.D. Fla. Mar.

27, 2014) (declining to consider defendants argument that it had inferior means where it

provide[d] no information about [the parties] ability to send representatives to either

venue); Lappe v. Am. Honda Motor Co., 857 F. Supp. 222, 230 (N.D.N.Y. 1994)

(Although a court can consider the relative financial means of the parties in reaching a

decision on a motion to transfer venue, plaintiff has not offered any documentation to show

that prosecuting his action in this court would be unduly burdensome to his finances), affd,

101 F.3d 682 (2d Cir. 1996) (internal citations omitted).

Third, relative means is significant only where the movant is trying to shift the

inconvenience to render the non-movant incapable of litigating the suit. See Osgood, 981

F. Supp. 2d at 1266 (noting reduced import of relative-means factor in modern era due to

technological developments; This is not a case where Defendant is simply looking to shift

the inconvenience onto the Plaintiff who lacks the means or ability to cope with it.

Therefore, this is . . . a neutral factor.) Plaintiffs retention of a costly polling firm and three

contingency-fee law firms to represent her in this case belies any contention of inferior

means or a compromised ability to litigate. This is especially so given that Plaintiff has

commissioned her lawyers to invest significant resources not just in this litigation, but in a


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comprehensive media campaign in an effort to coerce Defendant into settling for millions of

dollars.

7. The fora are equally familiar with the governing law.

Plaintiff has raised claims under Florida law. The Middle District and Northern

District are therefore equally familiar with the relevant law, rendering this a neutral factor.

8. Plaintiffs choice of forum deserves no consideration.

Plaintiffs choice of forum is a non-factor in the present transfer analysis. Although

this Court [g]enerally gives strong consideration to a plaintiffs forum choice, Suomen,

801 F. Supp. 2d at 1338, it retains broad discretion in matters of transfer to avoid

unnecessary inconvenience to parties, their witnesses and the public, and to promote judicial

economy. Watson, 2011 WL 3516150, at *2 (discussing and applying factors that mitigate

plaintiffs forum choice). This Court and others in the Eleventh Circuit have identified four

independent reasons why a court should override a plaintiffs forum choice, and all of them

apply here.

First, all of the operative facts in this case occurred in the Northern District. None

occurred in the Middle District. See Suomen, 801 F. Supp. 2d at 1338 ([w]here the

operative facts underlying the cause of action did not occur within the forum chosen by the

Plaintiff, the choice of forum is entitled to less consideration; granting transfer in part

because plaintiffs choice of forum [deserved] less weight because the operative facts

underlying [its] complaint did not occur in the Middle District of Florida) (quotation

omitted); Motorola v. Microsoft Corp., 804 F. Supp. 2d 1271, 1276 (giving minimal


20

deference . . . to Plaintiffs choice of forum because the underlying claims appear[ed] to

have a limited connection with this District and granting transfer) (emphasis added).

Second, Plaintiff has relocated from the Northern District to the Middle District since

the alleged facts at issue occurred. See Seal Shield, 2013 WL 6017330, at *3 (that plaintiffs

forum choice deserves minimal consideration is especially true where an action is connected

to a plaintiffs home forum solely by way of the plaintiffs relocation there after the bulk of

the operative facts occurred elsewhere) (citing Cortez v. First City Natl Bank of Houston,

735 F. Supp. 1021, 1024 (M.D. Fla. 1990)).

Third, this is not Plaintiffs home forum. Although she lives in the Middle District,

she is within the Tampa Division, and is much closer to Tampa (approx. 30 miles) than she is

to Orlando (approx. 70 miles), where she filed this suit. See Brandywine, 2012 WL 8281188,

at *3 (where a plaintiff has chosen a forum that is not its home forum, only minimal

deference is required, and it is considerably easier to satisfy the burden of showing that

other considerations make transfer proper) (quoting Suomen, 801 F. Supp. 2d at 1338)

(emphasis added) (quotation marks omitted).

Fourth, as explained above and below, all of the other 1404(a) factors favor

transferring the case to the Northern District. AGSouth Genetics LLC v. Terrell Peanut Co.,

2009 WL 4893588, at *4 (M.D. Ga. Dec. 9, 2009) (giving little consideration to Plaintiffs

forum choice when all other factors clearly outweigh it) (emphasis in original).


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9. Transfer will provide far more efficient adjudication.

Adjudication will be more efficient if this case is transferred to the Northern District.

First, all of the evidence and key witnesses are in Tallahassee. Maintaining this

action in Orlando when all of the evidence and key witnesses are in Tallahassee would be

inefficient and unnecessarily expensive. See, e.g., Brandywine, 2012 WL 8281188, at *7-*8

(it would be more efficient and practical to try this case in the Northern District of

California [because] the majority of likely party and third-party witnesses and relevant

documents are located there). Indeed, as discussed above, maintaining the case in the

present venue may deny Mr. Winston access to key witnesses, many of whom provided

statements and/or testimony that proved pivotal in defeating Plaintiffs claims the first six (6)

times that she pressed them. This fact bears not only on the witness-compulsion question,

but on the efficiency question as well. See Osgood, 981 F. Supp. 2d 1259, 1265-67

(efficiency factor weighs in favor of transfer because majority of the witnesses are located

in the Middle District, and [thus] holding the trial in Jacksonville will be more efficient than

Palm Beach Division of Southern District; discussing witness compulsion and 100-mile

rules impact on same witnesses),

Second, a related case is already before the Tallahassee Division. Plaintiffs lawsuit

against FSU is inextricably entwined with this action.7 She even has formally admitted that

the two cases are related. See Dkt. 5 at 1. Having these two cases in the same district will

significantly promote efficiency by focusing the development of similar facts and issues in

7 This case and the FSU Case are so connected to the Northern District and so interconnected with each otherthat Plaintiffs forum selection appears to be nothing more than a litigation ploy designed to reboot Plaintiffspreviously failed attempts to make a winning case against Mr. Winston.


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the same court, and eliminating the risk of redundancies and inconsistencies. See Cent.

Money Mortgage, 122 F. Supp. 2d at 1347 (applying same-forum efficiency principles in

granting 1404(a) transfer: Since the pending action in Maryland involves the same central

issue as well as parties and witnesses as the present case, it would be more expeditious to try

both cases in the same forum. Consolidation of the cases would promote judicial economy

and efficiency, and avoid problems related to duplicative actions in multiple forums.); Am.

Aircraft Sales Intl, Inc. v. Airwarsaw, Inc., 55 F. Supp. 2d 1347, 1353 (M.D. Fla. 1999)

(granting transfer of case after granting transfer of a closely related action; To try this matter

in two districts is a waste of time and resources for the Courts and the parties.); Motorola,

804 F. Supp. 2d at 1278 (S.D. Fla. 2011) ([Defendant] has pointed to [relevant] issues which

may be common to both cases, and to that extent, the knowledge of that District Court may

be superior to that of this Court . . . .) (internal quotation omitted). In the event this case is

transferred to the Northern District, Mr. Winston currently intends to move to have it

consolidated with the FSU case.

Third, the relative congestion of cases in the competing forums supports transfer.

See Grail Semiconductor, Inc. v. Stern, 2013 WL 2243961, at *6 (S.D. Fla. May 21, 2013).

Courts address this issue by examining the relevant court caseload statistics. See id.;

Thermal Tech., Inc. v. Dade Serv. Corp., 282 F. Supp. 2d 1373, 1378 (S.D. Fla. 2003). The

most recent statistics provided by the Administrative Office of the United States Courts show

that this District is considerably more congested than the Northern District. In the Middle

District, there are 603 pending cases per judge versus 504 in the Northern District, the

median months from civil filing to trial is 22.2 in the Middle District versus 14.6 in the


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Northern District, and 13.8% of civil cases in the Middle District are over three years old

versus 3.0% in the Northern District. See Exh. 6, Admin. Ofc. of the United States Courts,

National Judicial Caseload Profile, Reports of M.D. Fla. & N.D. Fla. (Dec. 31, 2014). As

other courts in this state have noted, the Middle District is very busy. See Thermal Tech.,

282 F. Supp. 2d at 1378. The differences in court congestion therefore also favor transfer to

the Northern District.

10. The interests of justice support transfer.

The interests of justice are promoted when transfer serves the public interest. See,

e.g., Culp v. Gainsco, Inc., 2004 WL 2300426, at *4, *7. Here, transfer to the Tallahassee

Division serves the public interest. Plaintiff has insisted in her Complaint, in FSU student

adjudicatory hearings, in the upcoming documentary The Hunting Ground, and in her

comprehensive media campaign that this case has widespread implications for the

Tallahassee community. In her view, this case is not just an indictment of Mr. Winston, but

also an indictment of FSU, the Tallahassee Police Department, the Tallahassee criminal

justice system, and the Tallahassee community at large. See Exh. 7 at 1, 4-6 (Plaintiffs

statements through counsel claiming that she has been wronged by FSU, law enforcement,

and the Tallahassee community). Plaintiff has attacked Tallahassees public institutions, its

public policies, and its citizens. It is therefore uniquely and exclusively within Tallahassees

public interest to have the case adjudicated in Tallahassee. No such compelling public

interest attaches to Orlando.

The interests of justice demand that this case be transferred to the community that

Plaintiff has put under siege. See, e.g., Watson, 2011 WL 3516150, at *6 (public interest


24

favored transfer in part because plaintiffs claims arose out of actions which predominately

occurred in transferee district); Lab. Corp. of Am. Holdings v. N.L.R.B., 942 F. Supp. 2d 1, 4

(D.D.C. 2013) (the relevant private and public interest factors weigh in favor of transfer to

New Jersey because key events occurred there and because there is a strong local interest in

having the controversy decided [there]; although the case presents issues of national

concern, that does not negate the local communitys stake in the outcome of this case)

(internal citations omitted); Wyandotte Nation v. Salazar, 825 F. Supp. 2d 261, 266-67

(D.D.C. 2011) (discussing at length local interest in lawsuit and granting transfer in part

because it is clear that the outcome of this litigation will have significant implications for

the local community).

CONCLUSION

Of the factors that this Court considers in deciding whether to grant 1404(a)

transfer, seven strongly support transfer, while three are neutral. None of the factors support

maintaining this action in this District. Accordingly, this case should be transferred to the

Middle District of Florida, for convenience of the parties and witnesses and in the interests of

efficiency and justice.

Local Rule 3.01(g) Certification

The undersigned hereby certifies that he has conferred with local counsel for Plaintiff

in a good-faith effort to resolve the issues raised by this Motion, and that counsel for Plaintiff

has stated its opposition to the relief requested.


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DATED: May 8, 2015 Respectfully submitted,

By: /s/ John F. MeyersJohn F. MeyersFlorida Bar No. [email protected] & THORNBURG LLP3475 Piedmont Road, NE, Suite 1700Atlanta, Georgia 30305-3327Telephone: 404.846.1693Facsimile: 404.264.4033

Attorney for Defendant Jameis Winston


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CERTIFICATE OF SERVICE

In accordance with Rule 5 of the Federal Rules of Civil Procedure and the CM/ECF

Administrative Procedures of the Middle District of Florida, I hereby certify that on May 8,

2015, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF

system. Notice of this filing will be sent to the following CM/ECF participants by operation

of the Courts electronic filing system:

David B. KingThomas A. ZehnderTaylor F. FordKing, Blackwell, Zehnder & Wermuth, PAPO Box 1631Orlando, FL [email protected]@[email protected]

I further certify that I mailed the foregoing document and the notice of electronic

filing by first-class mail to the following non-CM/ECF participants:

John CluneBaine KerrLauren E. GrothHutchinson Black and Cook, LLC921 Walnut Street, Suite 200Boulder, CO [email protected]@[email protected]

Respectfully submitted this 8th day of May, 2015.

By: /s/ John F. MeyersJohn F. Meyers


winston motion to transfer

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