Kinsman Opposes Transfer

Erica Kinsman 5/26/15 filing opposing transfer to Northern District.
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Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 1 of 22 PageID 380 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION ERICA KINSMAN, CASE NO. 6:15-cv-696-Orl-22GJK Plaintiff, v. JAMEIS WINSTON, Defendant. I. PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER VENUE (DOC. 8) (AND INCORPORATED MEMORANDUM OF LAW) INTRODUCTION Ms. Kinsman did not choose to be raped in Tallahassee. Having chosen, however, to bring suit in a neutral forum in which both parties now reside, justice and fairness do not permit her alleged assailant to disturb that choice of forum – especially where, as here, he has failed to meet and cannot meet his heavy burden of demonstrating, by clear and convincing evidence, that the Tallahassee Division of the Northern District of Florida is a more convenient forum in which to litigate Ms.  Kinsman’s  claims. II. BACKGROUND A. Overview & Procedural Posture This is an intentional tort case between two residents of the Middle District of Florida, see, e.g., (Ex. 1, Kinsman Decl., ¶ 3);1 (Doc. 7, Answer, ¶ 4), for common law claims of sexual battery, assault, false imprisonment and intentional infliction of emotional distress arising out of forcible rape. See generally (Doc. 2, Compl.). 1 Unless otherwise noted, all exhibits cited herein are attached to the Declaration of John Clune in Support of Plaintiff’s  Response  in  Opposition  to  Defendant’s  Motion  to  Transfer  Venue. Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 2 of 22 PageID 381 On April 16, 2015, Ms. Kinsman brought suit in Florida’s   Ninth Judicial Circuit Court. (Id.). Thereafter, Defendant removed the case to this Court. (Doc. 1). In deciding to effect removal, Defendant properly fixed the venue for this case in the Orlando Division of the Middle District and, as a matter of law, lost the ability to challenge venue as being improper.2 B. Title IX Case Against FSU Separate and apart from her tort claims against Defendant, Ms. Kinsman brought suit in this Court against The Florida State University Board of Trustees (“FSU”), contending that school administrators failed to properly investigate and respond to her allegations of being raped and that those failures  violated  FSU’s  obligations  under  Title  IX  of  the  Education  Amendments   of 1972, 20 U.S.C. §§ 1681-1688. See Kinsman v. The Fla. State Univ. Bd. of Trustees, Case No. 6:15-cv-16 (M.D. Fla. 2015) [hereinafter,  the  “Title  IX  case”]. There   is   very   little,   if   any,   factual   or   legal   overlap   between   Ms.   Kinsman’s   claims   against FSU and her claims against Defendant. To prevail on her claims against FSU, Ms. Kinsman does not have to establish that she was raped by Defendant.3 Similarly, FSU may be found liable under Title IX irrespective of whether Ms. Kinsman prevails on her tort claims in this case against Defendant. Conversely, Defendant may be found liable in this case irrespective of whether Ms. Kinsman prevails on her Title IX claims against FSU. 2 See, e.g., Hollis v. Fla. State Univ., 259 F.3d 1295, 1300  (11th  Cir.  2001)  (“[A]s a matter of law, § 1441(a) establishes federal venue in the district where the state action was pending.  .  .  .”). 3 A plaintiff seeking damages for student-on-student harassment under Title IX must prove four elements: (1) the  defendant  must  be  a  Title  IX  funding  recipient;;  (2)  an  “appropriate  person”  must  have  actual  knowledge  of   the discrimination or harassment that the plaintiff alleges occurred; (3) the funding recipient must act with “deliberate   indifference”;;   and   (4)   the   discrimination   must   be   “so   severe,   pervasive,   and   objectively   offensive   that  it  effectively  bars  the  victim’s  access  to  an  educational  opportunity  or  benefit.” Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282, 1293 (11th Cir. 2007). -2- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 3 of 22 PageID 382 III. STATEMENT OF LAW A motion to transfer pursuant to 28 U.S.C. § 1404(a) is committed to the sound discretion of the district court. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (“Section  1404(a)  is  intended  to  place  discretion  in  the  district  courts  to  adjudicate  motions  for   transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.’”) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). However, a “plaintiff’s   choice   of   forum   should   not   be   disturbed   unless   it   is   clearly outweighed by other considerations.” Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996) (emphasis added).4 Accordingly, a change of venue will not be granted unless the movant demonstrates that other considerations strongly override  the  plaintiff’s  choice  of  forum. Id.; see also, e.g., J.I. Kislak Mortg. Corp. v. Conn. Bank & Trust Co., 604 F. Supp. 346, 348 (S.D. Fla. 1985); Kenneth F. Hackett & Assocs., Inc. v. GE Capital Info. Tech. Solutions, Inc., No. 10-20715-CIV, 2010 WL 3056600, at *2 (S.D. Fla. Aug. 4, 2010). The  “other  considerations”  to  be  considered  in  conjunction  with  the  plaintiff’s choice of forum include: (1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties;;   (7)   a   forum’s familiarity with the governing law; (8) the  weight  accorded  a  plaintiff’s  choice  of  forum;; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances. 4 See also, e.g., In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989); Sterling v. Provident Life & Accident Ins. Co., 519 F. Supp. 2d 1195, 1206-07 (M.D. Fla. 2007); Oller v. Ford Motor Co., No. 92-cv-523, 1994 WL 143017, at *2 (M.D. Fla. Mar. 30,  1994)  (“[U]nless  the  balance  of  convenience  and  interest  of  justice  strongly   favor  the  defendant,  the  plaintiff’s  choice  of  forum  will  rarely  be  disturbed.”). -3- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 4 of 22 PageID 383 Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005). The party seeking transfer bears the burden of establishing, by clear and convincing evidence, that the case should be transferred to the suggested forum. See, e.g., In re Ricoh Corp.,  870  F.2d  at  573  (“burden  is  on  the  movant”); J.I. Kislak Mortg. Corp., 604 F. Supp. at 348 (denying motion to transfer and noting it is well settled that  “[a]  discretionary  transfer   under 28 U.S.C. § 1404(a) will not be granted absent a clear cut and convincing showing by defendant that the balance of convenience weighs strongly in favor of the transferee court.”).5 This  heightened  burden  requires  the  movant  to  “[p]rove with particularity the inconvenience caused  by  the  plaintiff’s  choice  of  forum.”    Mason v. Smithkline Beecham Clinical Labs., 146 F. Supp. 2d 1355, 1359 (S.D. Fla. 2001); see also, e.g., Microspherix LLC v. Biocompatibles, Inc., No. 9:11-cv-80813, 2012 WL 243764, at *2 (S.D. Fla. Jan. 25, 2012). IV. ARGUMENT A. Ms.  Kinsman’s Choice of Forum Is Entitled to Considerable Deference Ms.   Kinsman’s  choice  of  forum   is   not   merely  one  consideration  among   many to be weighed in the scales; it is the single most important factor that must be given considerable deference. See, e.g., Ricoh,   870   F.2d   at   573   (“[F]ederal   courts   traditionally   have   accorded   a   plaintiff’s   choice   of   forum   considerable   deference.”).6 This is especially true where, as here, 5 See also, e.g., Emp’rs  Mut.  Cas.  Co.  v.  Bartile  Roofs,  Inc., 618 F.3d 1153, 1167 n.13 (10th Cir.  2010)    “[W]e   honor   the   plaintiff’s   choice   of   forum   unless   the   balance   in   the   defendant’s   favor   is   shown   by   clear   and   convincing  evidence.”  (quotations  omitted);;  N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 113-14 (2nd Cir. 2010) (“[T]he  propriety  of  [the  ‘clear  and  convincing  evidence’]  standard  to  transfer-motions is  evident.”);;   Atl. Recording Corp. v. Project Playlist, Inc.,  603  F.  Supp.  2d  690,  695  (S.D.N.Y.  2009)  (“The   burden  rests  on  the  moving  party  to  make  a  ‘clear  and  convincing’  showing  that  transfer  under  Section  1404(a)   is  proper.”)  (citations  omitted). 6 See also Sterling,   519   F.   Supp.   2d   at   1204   (“In   determining   the   propriety   of   transfer,   the   court   must   give   considerable  weight  to  the  plaintiff’s  choice  of  forum.”)  (quotations and citations omitted); Mason, 146 F. Supp. 2d at 1360-61  (affording  plaintiff’s  choice   of   forum   “considerable  deference”  despite  the  fact  that  underlying   -4- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 5 of 22 PageID 384 Ms. Kinsman’s   suit   is in her home district (which is also the district in which Defendant now resides). See, e.g., Mason, 146 F. Supp. 2d at  1361  (“[A]  plaintiff’s  choice  of  forum  must  be   afforded considerable deference, where, as here, the plaintiff has elected to bring suit in the district  in  which  [s]he  resides”). Affording considerable deference to Ms. Kinsman’s  choice of venue takes on special significance in the circumstances of this case. Ms. Kinsman chose to bring suit in Orlando to minimize the risk of community bias and for her safety. In contrast to Orlando, one in three individuals in Tallahassee either works for or attends FSU, (Ex. 3, Whitbourne Decl., ¶14), and the Tallahassee Division of the Northern District has an objectively demonstrable allegiance to FSU football and its Heisman trophy-winning quarterback.7 When Ms. Kinsman’s   accusations   of   rape   against   Defendant   exploded   in   the   national   media   in   November 2013, she was quickly “outed”   on   the   Internet   and   became   subject   to   relentless   threats and vitriol.8 Within a day, she was forced to flee. When Ms. Kinsman returned to Tallahassee more than a year later to attend an FSU code of conduct hearing, she locked herself in her hotel room. (Ex. 1, Kinsman Decl., ¶6) (“I  do  not  feel  safe  in  Tallahassee.    The   last time I was there was for a student code of conduct hearing that Florida State University cause of action did not occur in chosen forum); Oller,   1994   WL   143017,   at   *2     (“[U]nless   the balance of convenience  and  interest  of  justice   strongly  favor  the  defendant,   the  plaintiff’s  choice   of  forum   will  rarely  be   disturbed.”); cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (concluding in the related context of forum non conveniens that  “[t]he  plaintiff's  choice  of  forum  should  rarely  be  disturbed.”). 7 See, e.g., (Ex. 3, Whitbourne Decl., ¶12) (citing data indicating that 65% of individuals within the Tallahassee area are fans of FSU football fan versus only 14%-16% in the Orlando area); see also (Ex. 2, Williams Decl., sub-ex B) (survey results demonstrating that 63% of registered voters – i.e., potential jurors – in the Tallahassee Division of the Northern District identify themselves as FSU football fans and 55% agree that Jameis Winston has brought credit to FSU). 8 Nearly every major news story about the Winston accusations has spawned new rounds of social media attacks against Ms. Kinsman by FSU football partisans. See, e.g., (Ex. 4, Kerr Decl.) (attaching representative posts, Tweets and emails by FSU football fans attacking, questioning and threatening Ms. Kinsman). -5- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 6 of 22 PageID 385 conducted in December 2014. Apart from my attendance at that hearing, I did not leave my hotel  room;;  I  locked  myself  in  and  ate  all  of  my  meals  there.”). As a matter of fairness and justice, it would be inequitable to afford Ms. Kinsman’s   choice of forum less than considerable deference. Defendant is alleged to have engaged in intentional tortious conduct. He should not be permitted to turn the geographical happenstance of where Ms. Kinsman was raped into the keystone of a § 1404(a) transfer request. Cf. Dale v. United States, 846 F. Supp. 2d 1256, 1258 (M.D. Fla. 2012) (denying motion to transfer and concluding, in part, that it would be inequitable to force plaintiff to litigate his claims in forum in which he lacked a voluntary connection). On the contrary, it is perfectly reasonably for Defendant to be called to account for his tortious conduct in a venue of Ms. Kinsman’s   choosing, especially where that venue is Defendant’s   home   district. To treat Ms. Kinsman’s  choice  of  forum  otherwise  would  effectively  permit  Defendant  to profit from his own wrong. Lastly, none of Defendant’s   arguments in support of his motion affects the considerable deference that must be afforded Ms.  Kinsman’s  choice  of  forum. First, while Ms.   Kinsman’s   tort   claims   may   have   arisen   in   the   Northern   District,   her injuries remain ongoing. It is therefore inaccurate to state that   “all   of   the   operative   facts   in   this   case   occurred”  in the Northern District or  that  “[n]one  occurred  in  the  Middle  District.” (Doc. 8 at 19). Mason, 146 F. Supp. 2d at 1361   (“[I]t would be inaccurate to state that none of the operative facts in this case occurred within the forum chosen by Plaintiffs. Rather, because Plaintiffs’ injuries are ongoing, some operative facts on the damages element are located, and continue to materialize, in Plaintiffs’ residence.”).    Second,  Defendant is also mistaken in his -6- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 7 of 22 PageID 386 contention   that   Ms.   Kinsman   “relocated”   to   the   Middle   District. (Doc. 8 at 20). Ms. Kinsman has at all material times – since before and after she was raped on December 7, 2012 – resided in the Middle District. (Ex. 1, Kinsman Decl., ¶3). And even if her departure from FSU as an undergraduate student somehow amounted to a  “relocation,”   as previously noted, Ms. Kinsman left Tallahassee because she reported Defendant’s  conduct. Third, that Ms. Kinsman may live closer to Tampa than to Orlando is of no moment. Defendant is not requesting an intradistrict transfer within the Middle District, but a transfer to the Northern District (and as between here and the Northern District, there can be no serious dispute that Ms. Kinsman and Defendant both live in the Middle District). And fourth, Defendant blatantly overstates his case in asserting that  Ms.  Kinsman’s  choice  of  forum  should  be  given   little  deference  because  “all of  the  other  §  1404(a)  factors”  favor  transfer.    (Doc.  8  at  20). As discussed further below, Defendant failed to support his motion with competent evidence, and few if any of the other § 1404(a) factors clearly favor transfer. B. Defendant Has Failed to Show That Other Considerations Strongly Outweigh Ms. Kinsman’s  Choice of Forum Defendant has failed to show by clear and convincing evidence that other considerations strongly  outweigh  the  considerable  deference  afforded  Ms.  Kinsman’s  choice   of forum. See¸ e.g., Robinson, 74 F.3d at 260; In re Ricoh Corp., 870 F.2d at 573; J.I. Kislak Mortg. Corp., 604 F. Supp. at 348. On the contrary, in seeking transfer to the Northern District, Defendant’s  unsubstantiated  motion  merely attempts to capitalize on loci delicti and shift the unavoidable inconvenience of litigation from himself to Ms. Kinsman. But the test -7- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 8 of 22 PageID 387 is not whether transfer would be more convenient for the defendant.9 The Court must instead balance the convenience of both parties and their witnesses, Manuel, 430 F.3d at 1135 n.1, while exercising its discretion where it can appropriately weigh each factor based on a showing   made   “with   particularity.”     Mason, 146 F. Supp. 2d at 1359; see also, e.g., In re Apple Inc., 743 F.3d 1377, 1379 (Fed. Cir. 2014) (affirming denial of transfer where movant’s  vague  assertions  made  weighing  factors  speculative). In this case, Defendant has made no such showing and, even if he had, most if not all of the remaining Manuel factors weigh against transfer and call for retaining this case in Orlando. 1. The Convenience of Non-Party Witnesses Does Not Favor Transfer In considering the convenience of non-party witnesses, courts have routinely recognized   that   “it   is   not   so   much   the   convenience   of   the   witnesses   but   the   possibility of having  their  testimony  at  the  trial  that  is  important.”    See Trinity Christian Ctr. of Santa Ana, Inc. v. New Frontier Media, Inc., 761 F. Supp. 2d 1322, 1327 (M.D. Fla. 2010); see also Dale, 846 F. Supp. 2d at 1257-58. As a result, a transfer motion should be denied when the presence of witnesses, although located in another district, can otherwise be obtained at trial. Cf. Mason, 146 F. Supp. 2d at 1361. Likewise, a transfer motion should be denied where, as here, the movant does not allege that any witnesses are actually unwilling to attend trial such that compulsory process would be necessary. See, e.g., id. at 1362 (citations omitted). Ultimately, the most important consideration is whether the witnesses will be available at trial; not how far they might have 9 And even if the test   were,   rather   than   being   a   matter   of   “convenience,”   Defendant’s   motion   seems   to   be   motivated more by his desire to simply obtain a jury pool drawn from Doak Campbell Stadium. -8- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 9 of 22 PageID 388 to travel to reach the courthouse. Id. Moreover, motions to transfer do not turn on which party   “can   present   a   longer   list   of   possible   witnesses located in the respective districts in which   each   party   would   like   to   try   the   case.” Id. Rather, the movant “must   support   its   motion by clearly specifying the key witnesses to be called and particularly stating the significance   of   their   testimony.” Id. (emphasis added); J.I. Kislak Mortg. Corp., 604 F. Supp. at 348. As a result, the Court cannot, as Defendant would appear to suggest,  “merely   tally  the  number  of  witnesses”  in  the  Northern District and then compare that number to the number of witnesses in the Middle District of Florida. See, e.g., Microspherix LLC, 2012 WL 243764, at *3 (citations and quotations omitted). Instead, the Court must qualitatively evaluate the materiality of each  witnesses’  actual  knowledge  relative  to  the dispute at hand. Id. Here, Defendant’s  witness  list  purportedly  includes  thirty-eight individuals he asserts will have  the  “greatest  impact”  on  the  case, (Doc. 8 at 5 n.3), nearly all of whom supposedly live in the Northern District. (Doc. 8-8). However, seventeen of those individuals (i) are not even identified by name but denoted only as groups, categories or entities – such as “Potbelly’s  Employees,”  “Witnesses  at  and  outside  of  Potbelly’s,”  “FSU fellow students that Plaintiff   contacted.   .   .,”   “Tallahassee   Police   Department” or “State   Attorney’s   Office” – or (ii) are clearly cumulative and duplicative of other individuals (such   as   “Other   hospital   personnel,”   “Other   police   personnel,”   “Other   State   Attorney   Personnel”).     Compare (Id.) with (Ex. 5, Plaintiff’s   notations   to   Defendant’s   list of non-party witnesses). Of the remaining twenty-one (21) specifically-identified and non-cumulative witnesses on Defendant’s  list: -9- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 10 of 22 PageID 389 Only nine (9) actually reside within the Northern District or within 100 miles of the Northern District and may potentially be unwilling to attend trial;10 Eight (8) either reside within the Middle District or have provided sworn declarations to Ms. Kinsman proclaiming that they are willing to testify and attend trial in Orlando; Two (2) are completely unknown (a taxicab driver whom law enforcement could not locate and an unnamed security guard at the Legacy Suites apartment building); and Two (2) do not even reside in the State of Florida (Ronald Darby and Christopher Casher).11 Moreover, Defendant’s   description   of   these   individuals’   anticipated   testimony   is broad and non-particularized, consisting of simply “Events of Dec. 6-7, 2012,”     “Investigation” or   “Toxicology.”     (Doc. 8-8). None of those conclusory descriptions lend support to the notion that the individuals on  Defendant’s  list  are crucial trial witnesses whose live testimony at trial is necessary. See, e.g., Mason,  146  F.  Supp.  2d  at  1362  (movant  “must   support its motion by . . . particularly stating the   significance   of   their   [key   witnesses’]   testimony.”) (emphasis added). Indeed, Defendant fails to particularly identify the significance of any witnesses’ testimony, preventing the Court from qualitatively evaluating the materiality of their testimony. Furthermore, Defendant has not shown that there is any witness who is unwilling to attend trial absent compulsory process. Such an omission is 10 Defendant did not attempt to determine or specify whether any of these nine (9) individuals – let alone any of the witnesses on his list – was unwilling to attend trial in Orlando. See (Ex. 5,   Plaintiff’s   notations   to   Defendant’s  list  of  non-party witnesses). 11 Contrary  to  Defendant’s  representations  that  his  two  former  teammates reside in Tallahassee, Mr. Darby was recently drafted by the Buffalo Bills and either resides in New York or continues to reside in his home state of Maryland, and Mr. Casher appears to reside in Alabama. See (Ex. 6, Skip-Trace reports). While Mr. Casher may for the time being be a student at FSU (it is unclear whether he will still be a student at the time this case goes   to   trial),   for   purposes   of   Rule   45,   he   “resides”   in   Alabama.     See, e.g., In re Application of Yukos Hydrocarbons Invs. Ltd., No. 5:09-mc-78, 2009 WL 5216951, at *6 (N.D.N.Y. Dec. 30, 2009) (construing “resides”  in  Rule  45  as,  inter alia, place to which individual has clear intent to return and maintain his residence with permanency). -10- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 11 of 22 PageID 390 fatal, as courts routinely deny motions to transfer venue when a movant has not shown that witnesses are unwilling. See, e.g., J.I. Kislak Mortg. Corp., 604 F. Supp. at 348 (denying motion to transfer because movant did not identify anticipated testimony or show that witnesses would be unwilling to attend). But even assuming that the nine (9) individuals on Defendant’s   list who may potentially be unwilling to attend trial are, in fact, unwilling to voluntarily testify at trial, Defendant has further failed to show that their testimony would be necessary, relevant and non-cumulative. Courts have denied motions to transfer for precisely such a failure. See, e.g., Dale, 846 F. Supp. 2d at 1258. In sum, Defendant has failed to carry his burden of identifying the anticipated testimony of his non-party witnesses with particularity, or demonstrating that there are individuals who unwilling to testify in the absence of a subpoena and that such individuals are in any event necessary and indispensable. Moreover, Ms. Kinsman’s   notations to Defendant’s   list of non-party witnesses and collection of declarations from non-resident witnesses makes plain that a transfer to the Northern District would – at the very least – not be any more convenient for non-party witnesses than retaining this case in the Middle District. (Exs. 5 & 7). Having failed to make a clear and convincing showing on the factor he contends is the single “most   important” factor in this case, (Doc.   8   at   11),   Defendant’s   motion should be denied. 2. The Location of Documents and Tangible Evidence Does Not Support Transfer The location of documents and tangible evidence in this case does not support transfer. First, notwithstanding Defendant’s  contentions  to  the  contrary,  it  is  well  established   that  “in   a  world   with  .    .    .  email,  overnight   shipping  and  mobile  phones  that  can  scan  and   -11- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 12 of 22 PageID 391 send  documents,  the  physical  location  of  documents  is  irrelevant.”    Microspherix, 2012 WL 243764 at *3; see also, e.g., Trinity Christian Ctr.,761  F.  Supp.  2d  at  1327  (“[t]echnological   advancements in electronic document imaging . . . reduce the significance of the location of sources  of  documentary  proof.”); Perfect Web Technologies, Inc. v. Infousa, Inc., No. 07-cv80286, 2007 WL 2757356, at *4 (S.D. Fla. Sept. 20, 2007) (suggesting that the location of documents outside of a chosen forum does not provide much, if any, support for transfer and further citing Coker v. Bank of Am., 984 F.Supp. 757, 766 (S.D.N.Y.1997) for the proposition that copy machines, fax machines and FedEx render location of documents a “non-factor.”). Indeed, many if not all of the documents Defendant sweepingly identifies – such as hearing transcripts, investigative reports, witness statements, correspondence, text messages, twitter posts, toxicology reports and medical examination reports, (Doc. 8 at 12) – were either originally created in or are now stored in easily and near instantaneously-transferrable electronic format. In fact, as Defendant’s   own   CM/ECF filings with the Court reveal, Defendant already appears to be in possession of many of these documents.12 See, e.g., (Doc. 8-3) (citing portions of record, transcripts, exhibits and other materials from code of conduct hearing). “The idea that it would be cumbersome or inefficient to transfer [such electronically stored information] back electronically to this district begins to approach absurd.”    Holliday v. Lifestyle Lift, Inc., No. 09-cv-4995, 2010 WL 3910143, at *8 (N.D. Cal. Oct. 5, 2010). 12 As does the world at large. See, e.g., Memorandum from Jason Newlin to State Attorney William Meggs regarding Jameis Winston investigation (Dec. 5, 2013), available at http://espn.go.com/pdf/2013/1206/winstoninv1.pdf (last visited May 22, 2015) (248-page memorandum detailing FSU, TPD and State Attorney investigations and attaching witness summaries, reports, correspondence, text messages, twitter posts, toxicology reports and medical examination reports). -12- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 13 of 22 PageID 392 Second, with respect to tangible evidence, Defendant fails to demonstrate that (i) declining transfer would make collection and production of such evidence any more burdensome or cause any such evidence to be lost, or (ii) that transfer to the Northern District would make the collection and production of such evidence any less burdensome or costly. See Mason, 146 F. Supp. 2d at 1363-64. Nor does he explain why or how specific tangible evidence is supposedly “critical   to   Mr.   Winston’s   effective   defense.” (Doc. 8 at 12). In any event, as with the documents that are already in his possession, it appears that Defendant already possesses or at least has access to some of the tangible evidence he identifies or, alternatively, that such evidence may in fact not even be relevant. See, e.g., (Doc. 8-7, ESPN article dated Dec. 5, 2013) (indicating  that  DNA  matched  Defendant’s).13 Accordingly, Defendant has failed to make a clear and convincing showing that the location of documents and tangible evidence in his case supports transfer, and Ms. Kinsman’s   choice   of   forum   will   have no effect on where documents and tangible evidence  are  reviewed  or  on  how  far  Defendant’s  counsel  may  have  to  travel.14 3. The Convenience of the Parties Weights Against Transfer Defendant’s   motion   does   not   directly address the convenience of the parties, but instead simply rehashes its   attacks   on   Ms.   Kinsman’s   choice   of   forum without articulating 13 Defendant   also   appears   to   suggest   that   the   “physical   location”   where   relevant   events   occurred   could   be   relevant. (Doc. 8 at 12). Such a suggestion should be rejected. Mason, 146 F. Supp. 2d at 1363-64 (“[T]he Court is not convinced that a view of [the] premises is needed, even if it were made possible by transfer. . . . Also, even if site inspection is relevant, it can be achieved through video, photographs, and drawings.). 14 In   passing,   Ms.   Kinsman   notes   that   most   of   Defendant’s   counsel   are   located   in   the   Middle   District   – specifically, Jacksonville – which is closer to Orlando than it is to Tallahassee. Compare Google Maps, https://goo.gl/maps/wZO2X (141 highway miles and approximately 125 geodesic miles between Orlando and Jacksonville) with https://goo.gl/maps/0IOMh (165 highway miles and approximately 159 geodesic miles between Jacksonville and Tallahassee). -13- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 14 of 22 PageID 393 why a trial in Tallahassee would supposedly be   more   convenient   for   “the   parties.”     See (Doc. 8 at 14). The Middle District is home to both Ms. Kinsman and Defendant, making it equally convenient for the parties. In contrast, a transfer to Tallahassee would simply put the trial further away from both parties. As noted below, while Defendant would be better able to absorb that increased inconvenience, in circumstances where there is a disparity in the financial means of the parties, a transfer that imposes an inconvenience on a plaintiff of lesser  means  “[c]uts   in  favor  of  Plaintiff’s  chosen  forum.”     Dale, 846 F. Supp. 2d at 1258. The convenience-of-the-parties factor therefore weighs against transfer. 4. The Locus of Operative Facts Does Not Strongly Favor Transfer Defendant’s arguments regarding the locus of operative facts have little to no evidentiary or legal support, and he has failed to make a clear and convincing showing that this factor strongly favors transfer. First, it is simply not true that “[a]ll of the critical  events”  in  this  case  or  “[a]ll of the events   described   in   Plaintiff’s   Complaint”   occurred in the Northern District. (Doc. 8 at 15).     As   previously   noted,   Ms.   Kinsman’s   injuries   are   ongoing;;   the   operative   facts   on   her   damages are therefore located in and continue to materialize in the Middle District. Mason, 146 F. Supp. 2d at 1361  (“[I]t would be inaccurate to state that none of the operative facts in this case occurred within the forum chosen by Plaintiffs. Rather, because Plaintiffs’ injuries are ongoing, some operative facts on the damages element are located, and continue to materialize, in Plaintiffs’ residence.”). -14- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 15 of 22 PageID 394 Second, Defendant has not requested that this case be transferred to the Tampa Division.15 Local Rule 1.02(c) and Bennett Eng’g Grp., Inc. v. Ashe Indus., Inc., No. 6:10cv-1697, 2011 WL 836988, at *1 (M.D. Fla. Mar. 8, 2011) – a case in which the defendants actually requested an intradistrict transfer – are therefore inapposite and have no bearing on whether this case should be transferred under 28 U.S.C. § 1404(a) to the Tallahassee Division of the Northern District.16 Third, Defendant’s   assertion   that   Ms.   Kinsman’s   12-page complaint in the instant case against Defendant and her 35-page complaint  in  the  Title  IX  case  against  FSU  “rely  on   the  same  transaction”  or  that  Ms.  Kinsman  has  pled  “substantially  similar  facts  to  support  her   claims   in   both   cases”   is   demonstrably   false. Compare (Doc. 2) with Kinsman v. The Fla. State Univ. Bd. of Trustees, Case No. 6:15-cv-16 (M.D. Fla. Mar. 9, 2015) (Doc. 1). As previously noted, these two cases are   far   from   inextricably   intertwined.     FSU’s   and Defendant’s   liability   are   completely   independent   of   one   another   and there is very little factual overlap or common issues between them. Fourth, this Court did not “[e]ssentially   decide   the   transfer   issue   in   this   case   when   transferred  [sic]  the  FSU  Case  to  the  Northern  District,”  nor has  it  “[a]lready  determined  that   the Northern District is the appropriate venue for a lawsuit based on the events pleaded Plaintiff’s  [sic]  Complaint.”    (Doc.  15-16). The preface to Judge  Presnell’s  April 27, 2015 15 If he had, Ms. Kinsman fears she would become subject to the same sort of community bias and hostility from Buccaneers fans in the Tampa Bay area that she has experienced to date from Seminole fans in Tallahassee. Amongst some of the other reasons already discussed, that is another reason why Ms. Kinsman sought out Orlando as a neutral forum in which to bring suit. 16 Defendant’s  reliance  on  Local  Rule  1.02(c)  is  further  misplaced  because  the  text  of  that  rule  plainly  concerns   the division in which civil  proceedings  “shall  be  instituted.  .  .  .”    Ms.  Kinsman  did  not  “institute”  or  otherwise   commence this case in the Middle District – she originally brought suit in state court. To the extent Local Rule 1.02(c) nevertheless applies to removed cases, it was Defendant – not Ms. Kinsman – who   “instituted”   this   proceeding in federal court. See (Doc. 1). -15- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 16 of 22 PageID 395 Order clearly states that, “[b]y   way   of   the   instant   motion,   the   Board   argues   that   venue   is   improper here and seeks to have the case transferred to the Northern District of Florida.”  The Fla. State Univ. Bd. of Trustees, Case No. 6:15-cv-16 (M.D. Fla. Apr. 27, 2015) (Doc. 50 at 2). Moreover:    “[T]he  Court  concludes  that  the  Board  is  not  subject  to  personal  jurisdiction   in the Middle District of Florida . . . and therefore venue is not proper here. Pursuant to 28 U.S.C. § 1406(a),   this   case   will   be   transferred.” Id. (Doc. 50 at 9-10) (footnoted omitted) (emphasis added). Defendant’s  motion  to  transfer  arises  under  §  1404(a)  and  has  nothing  to   do with the propriety of venue. Having elected to remove this case from state court, Defendant does not have the ability to challenge venue in this Court because, as a matter of law, venue upon removal necessarily became fixed in this Court. Hollis, 259 F.3d at 1300. Accordingly,  Defendant’s  assertion  that  the  Court  already  decided  the  transfer  issues  in  this   case  misstates  the  Court’s  April 27, 2015 Order. Lastly, even if the locus of operative facts could be shown to support a transfer, in the circumstances of this case, it would be inequitable to attach much significance to this factor. To do otherwise would permit Defendant to capitalize on his own misconduct. 5. The Availability of Process to Compel the Attendance of Unwilling Witnesses Weighs Against Transfer As discussed above, Defendant has failed to show that a single witness is unwilling to attend trial in this Court absent compulsory process. Such an omission is fatal. See, e.g., J.I. Kislak Mortg. Corp., 604 F. Supp. at 348 (denying motion to transfer, in part, because movant did not show that any witnesses would be unwilling to attend). Even if Defendant had   made   such   a   showing,   his   assertion   that   “[t]he the process to compel witness attendance exists only in the Tallahassee Division”  is  mistaken.    (Doc.  8  at  16). Clearly, -16- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 17 of 22 PageID 396 parties before this Court have access to the same process to compel witnesses under Rule 45 as do parties in the Northern District of Florida. The issue, of course, is the extent of the Court’s 100-mile reach and the importance of unwilling witnesses who may or may not come within its expanse.17 By failing to particularly identify the significance of any witnesses’   anticipated testimony and whether they are unwilling to testify, Defendant has precluded the Court from addressing that issue. Furthermore, one of the handful of witnesses whom Defendant specifically identifies as being “key” to his case – Dr. Bruce Goldberger, a forensic pathologist at the University of Florida, who may or may not be willing be testify, (Doc. 8 at 6) – does not come within the 100-mile   reach   of   the   Northern   District’s Tallahassee Division but is within the 100-mile reach of this Court. See (Clune Decl., ¶15). 6. The Relative Means of the Parties Weighs Against Transfer The relative means of the parties also weighs against transfer. Ms. Kinsman is an undergraduate student who lives with her family, (Ex. 1, Kinsman Decl., ¶¶ 3-4); she is not employed and has limited savings to bear the cost of travel, lodging and other expenses that she would necessarily incur if her case were transferred to Tallahassee. (Id., ¶¶ 4-5). Defendant, on the other hand, recently received a $16.69 million signing bonus as part of a four-year NFL contract totaling $25.35 million with the Tampa Bay Buccaneers. See, e.g., Big Bucks for New Buc, Tampa Bay Times, May 2, 2015, at 1A, available at 2015 WLNR 17 Defendant   is   mistaken,   however,   in   his   assertion   that   “[t]his   Court   cannot compel the attendance of any nonparty witnesses who live or work more than  100   miles  from   Orlando.”    (Doc.  8  at   16)  (emphasis  added).     While the 100-mile  limit  may  be  the  initial  source  and  limit  on  the  Court’s  authority,  Rule  45  also  grants  the   Court the authority to compel the attendance at trial of any nonparty witness within the entire state in which the witness resides, is employed or regularly transacts business if the witness would not incur substantial expense. FED. R. CIV. P. 45(c)(1)(B)(ii). -17- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 18 of 22 PageID 397 12996012. Clearly, Defendant is better able to bear the costs attendant to whatever inconvenience  he  may  have  in   Ms.  Kinsman’s  choice  of  forum  than  would   she  if  this   case   was transferred to the Northern District. In addition, Defendant failed to present any evidence on this factor and, as one of his own cases makes plain, when a party seeking transfer does not present evidence as to the relative means of the parties, this factor weighs against transfer. (Doc. 8 at 18) (citing Cableview Commc’ns of Jacksonville, Inc. v. Time Warner Cable Se. LLC, No. 3:13-cv-306, 2014 WL 1268584, at *25 (M.D. Fla. Mar. 27, 2014) (“As [movant] presented no evidence as to the relative means of the parties, this factor does not favor transfer.”)).     Similarly,   Defendant also failed to show with particularity how transfer would reduce costs. See, e.g., Perlman v. Delisfort-Theodule, 451 F. App’x 846, 848 (11th Cir. 2012) (unpublished) (affirming denial of motion to transfer venue where movant failed to, inter alia, show how transferring venue would reduce costs). Accordingly, the relative means of the parties weighs against transfer. 7. Familiarity with Governing Law Does Not Favor Transfer Defendant concedes that the Middle and Northern District are equally familiar with the  law  governing  Ms.  Kinsman’s  claims.    (Doc.  8  at  19).    Accordingly,  this  factor  does  not   favor transfer. Watson v. Cmty. Educ. Centers, Inc., No. 2:10-cv-778, 2011 WL 3516150, at *5 (M.D. Fla. Aug. 11, 2011) (“Due to the presumption favoring a plaintiff’s choice of venue,  when  analysis  of  any  particular  factor  results  in  a  “neutral”  outcome,  that  factor  does   not favor transfer.”). -18- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 19 of 22 PageID 398 8. Trial Efficiency Does Not Favor Transfer As the Court well knows, despite its size and relative caseload, the Middle District has historically been ranked as one of the most efficient district courts in the nation. While Defendant provides a recent   snapshot   from   the   Administrative   Office’s   Court Management Statistics, the 12-month Case Load Statistics and six-month CJRA reports paint a slightly different picture. See, e.g., (Ex. 8, U.S. District Courts – Median Time Intervals at 3) (showing, inter alia, a median time interval from filing to disposition by trial in civil cases of 21.4 months in the Middle District versus 24.5 months in the Northern District). But even on Defendant’s  statistics,  with a median time from filing to disposition in civil cases of only 7.6 months (versus 7.4 months in the Northern District), there is no appreciable difference in efficiency  between  Ms.  Kinsman’s  choice  of  forum  and  the  Northern  District. Nor is there any efficiency to be gained by consolidating Ms.  Kinsman’s  tort  claims   with the Title IX case in Tallahassee. This case not only involves separate parties but, as previously discussed, entirely separate causes of action with limited factual overlap and no common issues of liability. Furthermore,  the  Northern  District  recently  denied  FSU’s  motion   to stay discovery in the Title IX case, notwithstanding its suggestion that Defendant’s   intention to seek transfer and consolidation could result in duplicative discovery. 18 In circumstances such as these, Defendant should not be rewarded with a change in venue simply because Ms. Kinsman has a pending case in the Northern District. Cf. Carrizosa v. Chiquita Brands Int'l, Inc., No. 07-60821-CIV, 2007 WL 3458987, at *4 (S.D. Fla. Nov. 14, 18 See (Ex. 9, May 8, 2015 Hearing Tr. at 8, 11). The Northern District also recognized that, if Defendant was successful  in  seeking  transfer,  his  request  for  consolidation  could  be  a  “fly  in  the  ointment”  that  might  require   an extension of the deadlines in its Scheduling & Mediation Order. (Id. at 12). -19- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 20 of 22 PageID 399 2007) (denying transfer predicated, in part, on supposedly similar action pending in transferee court notwithstanding potential efficiency gains). 9. The Interests of Justice Strongly Weigh Against Transfer The interests of justice in this case include Ms. Kinsman’s  right  to  avoid  the  risk  of   receiving an unfair jury trial, cf. Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 497, 502 (C.D. Cal. 1981), and weigh strongly against transfer. Ms. Kinsman’s   decision   to bring suit in a neutral forum was not the product of conjecture or speculation, but a decision supported by objective evidence19 demonstrating that the majority of potential jurors in the Tallahassee Division of the Northern District have already made up their minds on the central issue in this case, specifically: 67% of those with opinions believe Defendant did not rape Ms. Kinsman and 93% of those individuals are either “completely   certain” or  “pretty  certain”  about  their opinions. (Ex. 2, Williams Decl., sub-ex B). Taken in conjunction with the clear allegiance that Tallahassee has to FSU football and to its Heisman trophy-winning quarterback, along with risk of implicit or subconscious bias, (Ex. 3, Whitbourne Decl., at ¶20), these statistics strongly favor denying Defendant’s   motion   and   retaining this case in Orlando. V. CONCLUSION Defendant has failed to show by clear and convincing evidence that any other factors strongly   outweigh   the   considerable   deference   afforded   Ms.   Kinsman’s   choice   of   forum.     Accordingly, the Court  should  deny  Defendant’s  motion  to  transfer. 19 While concerns of bias cannot be sustained by conjecture, in the context of motions to transfer, district courts have considered objective evidence such as opinion polls. See, e.g., N. Ind. Pub. Serv. Co. v. Envirotech Corp., 566 F. Supp. 362, 366 (N.D. Ind. 1983)   (“This   Court   will   consider   .   .   .   the   results   of   an   opinion   poll   of   prospective  veniremen  conducted  by  a  public  opinion  research  company.”). -20- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 21 of 22 PageID 400 CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on May 26, 2015, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to all counsel of record. Respectfully submitted, /s/ David B. King David B. King Florida Bar No.: 0093426 Thomas A. Zehnder Florida Bar No.: 0063274 Taylor F. Ford Florida Bar No.: 0041008 KING, BLACKWELL, ZEHNDER & WERMUTH, P.A. P.O. Box 1631 Orlando, FL 32802-1631 Telephone: (407) 422-2472 Facsimile: (407) 648-0161 Email: [email protected] Email: [email protected] Email: [email protected] Baine Kerr (Colorado Bar No.: 9797)* John Clune (Colorado Bar No.: 27684)* Lauren E. Groth (Colorado Bar No.: 47413)* HUTCHINSON BLACK AND COOK, LLC 921 Walnut Street, Suite 200 Boulder, CO 80302 Telephone: (303) 442-6514 Facsimile: (303) 442-6593 Email: [email protected] Email: [email protected] Email: [email protected] *(Motions to appear pro hac vice pending) Counsel for Plaintiff -21- Case 6:15-cv-00696-ACC-GJK Document 23 Filed 05/26/15 Page 22 of 22 PageID 401 EXHIBIT INDEX TO DECLARATION OF JOHN CLUNE IN SUPPORT OF PLAINTIFF’S  RESPONSE IN OPPOSITION TO DEFENDANT’S  MOTION  TO TRANSFER VENUE Exhibit Description Exhibit 1 Declaration of Erica Kinsman Exhibit 2 Declaration of James L. Williams, Jr. (Polling Analyst at Public Policy Polling, LLC) Ex. A Current Firm Information & Additional Background Regarding PPP Ex. B Survey of Registered Voters in Tallahassee Division of the Northern District of Florida conducted March 5, 2015 – March 8, 2015 Exhibit 3 Declaration of Susan K. Whitbourne, PH.D. (Doctor of Psychological and Brain Sciences) Exhibit 4 Declaration of Baine Kerr, Esq. Collection of Internet Posts, Tweets, and Emails from FSU Fans Based in Tallahassee Exhibit 5 Plaintiff’s  Notations  to  Defendant’s  List of Non-Party Witnesses Exhibit 6 Skip-Trace Reports for Christopher Casher & Ronald Darby Exhibit 7 Declarations of Certain Non-Party Witnesses Marcus Jordan Monique Kessler Jenna Weisberg Angela Chatfield Exhibit 8 Administrative  Office  of  the  U.S.  Courts’  Case  Load  Statistics  For  12Month Period Ending March 31, 2014 (Table C-5) and Excerpts from 6-Month CJRA Report dated September 30, 2014 Exhibit 9 Transcript of May 8, 2015 Hearing in Title IX Case -22-