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

UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ERICA KINSMAN,
CASE NO. 6:15-cv-696-Orl-22GJK
Plaintiff,
v.
JAMEIS WINSTON,

PLAINTIFFS RESPONSE IN
OPPOSITION TO DEFENDANTS
MOTION FOR LEAVE TO FILE REPLY IN
SUPPORT OF MOTION TO
TRANSFER VENUE (DOC. 26)

Defendant.
Plaintiff Erica Kinsman (Ms. Kinsman) respectfully requests that the Court deny or,
in the alternative, deny in significant part, the Motion for Leave To File A Reply In Support
of Defendants Motion to Transfer Venue [hereinafter, simply the Motion for Leave]
(Doc. 26) filed by Defendant Jameis Winston (Defendant), and states:
Ms. Kinsman generally defers to the Courts sound discretion and need if any for
additional briefing in regard to Defendants motion to transfer. (Doc. 8). However, she
would make five (5) brief counterpoints in response to Defendants Motion for Leave:
1.

Defendants apparent surprise at being confronted with supposedly new

materials and factual assertions is not accurate and runs contrary to statements and citations
made in his motion to transfer. Before seeking transfer, Defendant was well aware of the
materials that Ms. Kinsman previously filed with the Court in opposing FSUs motion to
transfer in the Title IX case Kinsman v. The Fla. State Univ. Bd. of Trustees, Case No.
6:15-cv-16 (M.D. Fla.) (Docs. 37-1 to 37-4) including, in particular, the declaration of
James L. Williams, Jr. and accompanying poll on the potential jury pool in the Tallahassee
Division of the Northern District, as well as the prior expert report of Susan K. Whitbourne

Case 6:15-cv-00696-ACC-GJK Document 27 Filed 05/31/15 Page 2 of 4 PageID 554

and declaration of John Clune.1

Inasmuch as Defendant already had access to and

anticipated the use of these and similar materials before filing his motion to transfer, he
should not be permitted to address them again in a reply after giving them short-shrift in his
original motion.
2.

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

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


marshal whatever evidence he had in support of transfer, including, in particular, evidence
that adequately identified non-party witnesses and described the relevance of their
testimony.2 Confronted with Ms. Kinsmans response and notations to Defendants own 38entry exhibit highlighting his failures to meet this burden, it would be improper to permit
Defendant a redo by way of a reply since it was Defendant who elected to file his motion
without supporting evidence and adequate witness information.
3.

There is nothing new about Ms. Kinsmans arguments regarding the

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

The first

opportunity indeed, necessity she had to raise those arguments was, of course, in response
1

In fact, with respect to the poll, in arguing that the relative means of the parties was supposedly irrelevant to
the transfer question in his case, (Doc. 8 at 17), Defendant specifically cited Ms. Kinsmans retention of a
costly polling firm in his motion to transfer. (Id. at 18). Consistent with his obligation to ensure that the
factual representations made in his motion had evidentiary support, Defendant surely never would have made
such a representation without having read the declaration of James L. Williams, Jr. which included and
described the cost of the poll as filed in the Title IX case and accessible via PACER/CM-ECF. See (Doc. 89). Indeed, as evidenced by Defendants refiling of an entire exhibit to Ms. Kinsmans prior opposition to
FSUs transfer request, see (Doc. 8-9) (Declaration of John Clune dated Mar. 9, 2015, which was previously
filed as Doc. 37-2 in Case No. 6:15-cv-16), there can be no question that Defendant reviewed the materials filed
in the Title IX case including, in particular, the poll, prior expert report of Susan K. Whitbourne and prior
declaration of John Clune before preparing and filing his motion to transfer in the instant case.
2

See, e.g., (Doc. 8 at 13) (citing, inter alia, Sessions v. Atl. Recording Corp., Case No. 6:10-cv-1568, 2011 WL
3754601, (M.D. Fla. Aug. 11, 2011) and quoting Trinity Christian Ctr. of Santa Ana, Inc. v. New Frontier
Media, Inc., 761 F. Supp. 2d 1322 (M.D. Fla. 2010)); see also, e.g., Mason v. Smithkline Beecham Clinical
Labs., 146 F. Supp. 2d 1355, 1362 (S.D. Fla. 2001).

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to Defendants contentions that this case should be transferred. See, e.g., (Doc. 8 at 9, 21)
(using supposed relationship between cases as basis for transfer).

Furthermore, since

Ms. Kinsman filed the entire 20-page transcript from the May 8, 2015 hearing in the Title IX
case, see (Doc. 24-9), the Court is perfectly competent to review that short transcript on its
own without the need for additional argument from Defendant.
4.

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

accompanied by affidavits, declarations and exhibits (Defendant does not say) is excessive.
To the extent the Court is at all willing to entertain a reply, it should be limited to a more
reasonable length, not be based on or include any affidavits, declarations or exhibits, and be
focused on specifically identified issues of law (not simply on Defendants vague and
ambiguous suggestion that he should be permitted to address [m]any misstatements of
relevant law. . . , (Doc. 26 at 2)).3
5.

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

motion practice in this Court and deprive the non-movant of her privilege of ordinarily
having the last word. Accordingly, to the extent the Court may at all be inclined to permit a
reply, Ms. Kinsman should be entitled to file a brief surreply.
In light of the foregoing, unless the Court has a need for additional briefing, it should
enter an order denying Defendants Motion for Leave or, in the alternative, limiting the
length and focus of any reply and granting Ms. Kinsman leave to file a brief surreply.
Dated: May 31, 2015.
3

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

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Case 6:15-cv-00696-ACC-GJK Document 27 Filed 05/31/15 Page 4 of 4 PageID 556

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on May 31, 2015, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system, which will send a notice of
electronic filing to all counsel of record.
Respectfully submitted,

/s/ David B. King


David B. King
Florida Bar No.: 0093426
Thomas A. Zehnder
Florida Bar No.: 0063274
Taylor F. Ford
Florida Bar No.: 0041008
KING, BLACKWELL, ZEHNDER & WERMUTH, P.A.
P.O. Box 1631
Orlando, FL 32802-1631
Telephone: (407) 422-2472
Facsimile: (407) 648-0161
Email: dking@kbzwlaw.com
Email: tzehnder@kbzwlaw.com
Email: tford@kbzwlaw.com
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: kerr@hbcboulder.com
Email: clune@hbcboulder.com
Email: groth@hbcboulder.com
Counsel for Plaintiff Erica Kinsman

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