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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Governor Jesse Ventura, a/k/a James G. Janos, Plaintiff, v. Taya Kyle, Executrix of the Estate of Chris Kyle, Defendant.

Civil No. 12-0472 (RHK/JJG)

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER VENUE

PRELIMINARY STATEMENT Plaintiff, Governor Jesse Ventura (“Governor Ventura”), submits this memorandum in opposition to the motion of Defendant, Taya Kyle, in her capacity as Executrix of the Estate of Chris Kyle (the “Estate”), to transfer venue to the Dallas Division of the U.S. District Court for the Northern District of Texas. 1 As explained more fully below, the motion should be denied because, despite any alleged inconveniences the Estate may face in connection with a Minnesota trial, moving this case to the Northern District of Texas would serve only to shift the inconvenience to Governor Ventura, and to make available a jury pool that would likely be biased in favor of “hometown hero” Chris Kyle. That, however, is not the purpose of a 28 U.S.C. § 1404(a) transfer.
1

Dkt. No. 172. The Estate has deferred to the Court as to the appropriate time for its requested transfer. See Mem. in Supp. of Def.’s Mot. to Transfer Venue (“Def.’s Mem.”) 2.

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Seemingly conceding the point, it appears from counsel’s arguments that the Estate never expected or intended to convince this Court that it is appropriate to transfer this case after more than a year and one-half solely for Taya Kyle’s convenience, but instead filed its motion in furtherance of a continuing strategy to publicly disparage Governor Ventura and influence the court of public opinion. Toward that end, and obviously writing more for the media than for this Court, the Estate’s lawyers have again littered their brief with unnecessarily vitriolic comments and personal attacks against Governor Ventura regarding a claimed lack of concern he has shown for the families of deceased veterans by continuing this lawsuit. 2 Fairness, however, demands full disclosure. The Estate’s lawyers, and Taya Kyle herself in media interviews, have repeatedly tried to portray Governor Ventura as doggedly pursuing his claim against a “widow” and, by doing so, intending to take from her money needed to raise her children. But in their appeals for public sympathy, the Estate’s lawyers and Taya Kyle have consistently avoided or downplayed the fact that the publisher’s insurance company has been footing the bill for defense costs, and will likely end up paying for any damages awarded. 3

The St. Paul Pioneer Press picked up on opposing counsels’ expressions of contempt for Governor Ventura, commenting that, “defense attorneys for Taya Kyle again took a dig at the former governor for pursuing the suit even after Kyle's death. They wrote that ‘the lawsuit itself at this point conveys the message that Ventura has little or no regard for the feelings of mourning family members of deceased veterans.’” See Aff. of David Bradley Olsen in Supp. of Mem. in Opp’n to Def.’s Mot. to Transfer (“Olsen Aff.”), Ex. A (emphasis added). Defense counsels’ media strategy and uncalled for personal attacks against Governor Ventura are further discussed in Section B(3)(e) and notes 35-41, below. 3 See, e.g., Olsen Aff., Ex. D, Taya Kyle interview on FOX TV (“He is suing me for money . . . for the money that I’m supposed to use to raise my children . . . the money he
2

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The Estate’s attorneys also fail when publicly vilifying Governor Ventura in argument to mention that Taya Kyle knew, before she accepted appointment as Executrix, that a motion would be made to substitute the Estate’s representative as a defendant. She could, of course, have avoided any obligation to appear or to testify at trial by declining the appointment, and letting a relative, a lawyer, an accountant, a bank trust officer, or a friend serve as Executor. Because Taya Kyle chose to accept appointment and to voluntarily inject herself into this lawsuit, however, she cannot now claim that she will be inconvenienced by having to attend trial in Minnesota. For these, and all of the reasons that follow, the Estate’s motion to transfer venue should be denied. STATEMENT OF THE FACTS Chris Kyle co-authored a book entitled American Sniper, in which he describes an alleged incident between himself and Governor Ventura during a wake for a Navy SEAL killed in action. Among other things, Chris Kyle alleged that Governor Ventura said he hates America, SEALs are murdering innocent people, and that SEAL’s deserve to die – statements which, according to Chris Kyle, ultimately caused him to punch Governor Ventura in the face, giving him a black eye. Governor Ventura sued Chris Kyle for defamation because the incident is a complete and total fabrication and, by concocting and publishing the story, Chris Kyle viciously and deliberately attacked Governor Ventura’s character, honor, and reputation,

wants is mine.”); Fed. R. Evid. 411 (evidence that a person was or was not insured against liability is not admissible to prove negligence or wrongful acts, but may be admitted for other purposes, including to prove bias or prejudice).
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and in so doing turned the Navy SEAL community – and Americans in general – against him. Governor Ventura’s Complaint also includes claims for misappropriation of name and likeness (appropriation branch of the right of privacy) and unjust enrichment. Following Chris Kyle’s tragic death on February 2, 2013, Taya Kyle filed her Statement Noting the Death of Chris Kyle and confirmed she had been duly appointed as “Executor” of his estate. 4 As had been previously discussed with the Magistrate Judge, upon receipt of notice that a representative had been appointed Governor Ventura moved to substitute Taya Kyle, Executrix of the Estate of Chris Kyle, as Defendant. 5 On July 18, 2013, this Court granted the motion. 6 The Estate now moves the Court to transfer this case to the Dallas Division of the U.S. District Court for the Northern District in Texas. In its memorandum, the Estate claims that a trial in Minnesota would be inconvenient for Taya Kyle, the Executrix, citing her responsibilities as the executor of the estate and as a parent to her two children. The Estate further argues that holding the trial in Minnesota would present a “significant burden and inconvenience” and expose her to “expenses for airfare, meals, and lodging.” 7 Just four days after telling this Court that it is too inconvenient for Taya Kyle to attend trial in Minnesota, however, she voluntarily made the trip to Minneapolis to speak at a public event marketed as the “Patriot Tour.” In fact, the Patriot Tour ran from August 1 through August 17, 2013, and made seven stops in five states, including

4 5

Dkt. No. 150. Dkt. No. 151. 6 Dkt. No. 171. 7 See Def.’s Mem. 1, 7. Notably, the Estate again avoids mention that the publisher’s insurance company is paying the defense costs.
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Houston, Austin, and Dallas, Texas, and Indiana, Minnesota, Utah, and Florida. 8 Taya Kyle also spoke at the National Rifle Association’s annual convention in Houston on May 3, 2013, 9 followed by several public and media appearances in New York in early June, 2013. 10 The Estate admits, as it must, that very few events, operative or otherwise, occurred in Texas. 11 Minnesota, on the other hand, is Governor Ventura’s home, where he was elected to its highest public office, and it is where the defamation damages occurred. ARGUMENT AND AUTHORITY A. STANDARD OF REVIEW. Motions to transfer venue are governed by 28 U.S.C. § 1404(a), which provides that, “[f]or the convenience of the 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.” A court faced with a motion to transfer must undertake a two-part inquiry: “The initial question . . . is whether the action might have been brought in the proposed transferee district. If so, the Court must [then] consider the convenience and interest of justice factors.” Austin v. Nestle USA, Inc., 677 F. Supp. 2d 1134, 1137 (D. Minn. 2009) (Kyle, J.) (citation omitted). Courts must be cognizant that transfer motions “should not be freely granted.” In re Nine Mile Ltd., 692 F.2d 56, 61 (8th Cir. 1982), abrogated on other grounds by Mo.
8 9

Olsen Aff., Ex. B. Id., Ex. C. 10 Id., ¶¶ 5, 7-8, and Ex. D. 11 Def.’s Mem. 10.
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Hous. Dev. Comm’n v. Brice, 919 F.2d 1306 (8th Cir. 1990). “A ‘heavy’ burden rests with the movant to demonstrate why a case should be transferred.” Austin, 677 F. Supp. 2d at 1137 (emphasis added). To satisfy this “heavy” burden, “the movant must demonstrate that the relevant factors weigh ‘strongly’ in its favor.” Id. Three general factors inform whether a district court should grant a motion to transfer: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of justice. See Terra Int’l, Inc. v. Miss. Chemical Corp., 119 F.3d 688, 691 (8th Cir. 1997). Each is discussed below. B. DEFENDANT’S MOTION SHOULD BE DENIED. 1. Convenience of the Parties.

It is self-evident that Minnesota is the most convenient forum for Governor Ventura – that is why he chose to file suit here. Governor Ventura’s home is here and he is a Minnesota citizen and taxpayer. Similarly, Taya Kyle’s home forum would undoubtedly be most convenient for her. Section 1404(a), however, “provides for transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient.” Van Dusen v. Barrack, 376 U.S. 612, 645-46 (1964); Graff v. Qwest Commc’ns Corp., 33 F. Supp. 2d 1117, 1121 (D. Minn. 1999) (Doty, J.) (transfer should not be granted “if the effect is simply to shift the inconvenience” from one party to the other). It is the Estate’s burden to show “that [Taya Kyle’s] inconvenience substantially outweighs in the inconvenience that plaintiff would suffer if venue were transferred.” Nelson v. Soo Line R.R. Co., 58 F. Supp. 2d 1023, 1026 (D. Minn. 1999) (Doty, J.). The
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Estate argues at length that a trial in Texas would inconvenience Governor Ventura “much less” than a trial in Minnesota would inconvenience Taya Kyle. 12 But, although lengthy, the Estate’s argument is not supported by the facts or the law. Although the Estate argues, as it must, that a trial in Minnesota would present a “significant burden and inconvenience” for Taya Kyle, the undisputed facts are that, for the past three months, she has been voluntarily traveling across the country on media and speaking tours – including a stop in Minneapolis on August 9, 2013. 13 It is also undisputed that this suit was pending in Minnesota long before the Estate was substituted as a party and that, with knowledge of the proposed substitution, Taya Kyle volunteered to serve as Executrix and to voluntarily inject herself into these proceedings. Having made a knowing and voluntary choice to do so, she cannot now claim that it is inconvenient for her to participate. Although discussed more fully in Section 3(e), below, it also cannot go without comment here that, by granting the Estate’s motion, trial would take place in Texas, where Chris Kyle is revered as a hero. When defendants have attempted similar ploys in the past, courts have been adamant in their refusal to transfer. See, e.g., Queen Uno Ltd. P’ship v. Coeur d’Alene Mines Corp., 2 F. Supp. 2d 1345, 1352 (D. Colo. 1998) (“In short, Defendants ask the Court to transfer the case to a forum that is convenient only for Defendant cites to In re Apple, 602 F.3d 909, 913 (8th Cir. 2010) to argue that transfer would minimize “personal costs associated with being away from work, family, and community.” However, in Apple, the Eighth Circuit used such language to describe the defendant’s witnesses, not the defendant itself. 13 See also Def.’s Mem. 3-4 (“Taya Kyle’s responsibilities . . . include a collection of diverse, complicated issues, ranging from the publication and promotion of [Chris Kyle’s] posthumously published book American Gun, to the production of a screen adaptation of American Sniper.”).
7
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them and that will grant them a jury pool from which they likely will draw highly favorable, if not outright unfairly biased, jurors. These grounds are nothing more than superficial counterfeits designed to gain Defendants an unfair ‘home-field advantage.’”) (emphasis added), abrogated on other grounds by Adams v. Kinder-Morgan, Inc., 340 F.3d 1083 (10th Cir. 2003). Trial in this matter is set for May 1, 2014. 14 Defendant’s counsel argues that starting a trial in Dallas “could be more convenient” for Ventura because that date: falls roughly during the period that Ventura in the past has transitioned from his home in Mexico to his home in Minnesota, and therefore is “location neutral” for trial either in Dallas (on his car trip back to Minnesota) or in Minnesota (adjusting for a slightly earlier return to Minnesota). 15 The argument is illogical and unrealistic. It assumes Governor Ventura would be willing and able to prepare for a two-week trial from his home in Mexico – where he does not even have a telephone – and then drive to Dallas to meet with his Minnesota attorneys and attend trial. The bottom line is that, “courts in this District have repeatedly found that deference to the plaintiff’s choice of forum is appropriate where the plaintiff resides in the chosen forum.” Oien v. Thompson, 824 F. Supp. 2d 898, 905 (D. Minn. 2010) (Tunheim, J.) (quoting Travel Tags, Inc. v. UV Color, Inc., 690 F. Supp. 2d 785, 795 (D. Minn. 2010) (Tunheim, J.)). Because Governor Ventura resides in and is a citizen of Minnesota, his choice to litigate here should be given deference. The Estate has simply not produced any evidence to overcome the strong presumption in favor of the plaintiff’s
14 15

Dkt. No. 179. Def.’s Mem. 8 (underline emphasis added).
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chosen forum, and it has wholly failed to satisfy its “heavy burden” to show that the U.S. District Court for the Northern District in Texas is a more convenient forum. Austin, 677 F. Supp. 2d at 1137. Because the Estate has not met its burden, and because transfer would create “inconvenience for [Governor Ventura] where none existed before, the issue of the convenience of the parties weighs in favor of denying the motion to transfer.” Kayachith v. Robinson, No. Civ. 03-4504, 2004 WL 45502, at *1 (D. Minn. Jan. 2, 2004) (Ericksen, J.). 2. Convenience of the Witnesses.

Like the convenience of the parties, the Estate cannot demonstrate that the convenience of witnesses favors transfer. The convenience of the witnesses “is an important factor for the court since it determines the relative ease of access to sources of proof.” Graff, 33 F. Supp. 2d at 1121. In its analysis, “the Court must focus on nonparty witnesses, since ‘it is generally assumed that witnesses within the control of the party calling them . . . will appear voluntarily in a foreign forum.’” Cosmetic Warriors Ltd. v. Abrahamson, 723 F. Supp. 2d 1102, 1106 (D. Minn. 2010) (Kyle, J.) (quoting Austin, 677 F. Supp. 2d at 1137). The Estate correctly notes, with the omission of one New Hampshire resident, that its fact witnesses reside in Arizona, California, Colorado, Georgia, Mississippi, Missouri, Tennessee, and Texas. 16 Governor Ventura also intends to call several eyewitnesses to the (non) events at McP’s. But none of them live in Minnesota or Texas. Consequently,

16

See Def.’s Mem. 11-14.
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a trial in Minnesota would be no more inconvenient for the fact witnesses than a trial in Texas. It is also important to note that all of the witnesses, regardless of their state of residence, are beyond the subpoena power of the Northern District of Texas. Although the Estate intends to call two witnesses who reside in Texas, neither of them live within a hundred miles of Dallas, and neither can be compelled to attend trial in the Northern District. 17 Furthermore, the Estate is simply wrong in arguing that Governor Ventura “bears the burden of showing the materiality of the testimony” of his witnesses. 18 The reality is that “[t]he party seeking transfer ‘must clearly specify the essential witnesses to be called and must make a general statement of what their testimony will cover.” Oien, 824 F. Supp. 2d at 904 (quoting Graff, 33 F. Supp. 2d at 1122) (emphasis added). The Estate does not cite to any Minnesota law requiring the nonmovant to do the same – because there is no such requirement. Accordingly, because the Estate has not demonstrated that transfer is necessary for the convenience of witnesses, its motion should be denied. 3. The Interests of Justice.

When analyzing whether the interests of justice require a transfer, courts consider: (a) judicial economy, (b) the plaintiffs’ choice of forum, (c) the comparative costs to the parties of litigating in each forum, (d) each party’s ability to enforce a judgment, (e) obstacles to a fair trial, (f) conflict of law issues, and (g) the advantages of having a local court determine local law.

John Jones lives in Leander, Texas, which is approximately 180 miles from Dallas. John Kelly lives in Austin, Texas, which is 190 miles from Dallas. 18 Def.’s Mem. 14.
10

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Cosmetic Warriors, 723 F. Supp. 2d at 1107 (citing Terra Int’l, 119 F.3d at 696). Each is discussed below. (a) Judicial Economy.

The Estate takes the unsupportable position that “the issues of judicial economy should not weigh heavily in the Court’s decision whether to transfer venue.” 19 To the contrary, judicial economy should be at the forefront of this Court’s decision. This case has been on the Court’s docket since February 2012. There have been several motions filed and heard by the Court, including Chris Kyle’s motion for partial summary judgment – which was denied – and the Court has ordered and overseen two separate settlement conferences. Interests of judicial economy, therefore, weigh heavily against transferring this case. The judicial economy factor “typically involves consideration of docket backlog and the time to disposition in the two forums.” Oien, 824 F. Supp. 2d at 905. The Estate, however, does not address either. Instead, the Estate cites In re Apple and argues that the judicial economy factor is neutral because, “whether one court would move any given case to trial faster is ‘speculative.’” 20 Given the time that has passed, this Court’s intimate knowledge of the case, and the fact that a new trial date has been set, it strains reason to argue that the U.S. District Court for the Northern District in Texas would be in a better position to bring this case to an expeditious conclusion. See Van Dyke v. Offshore Specialty Fabricators, Inc., No. Civ.A. G-04-525, 2005 WL 1249257 (S.D. Tex.

19 20

Def.’s Mem. 16. Def.’s Mem. 16 (quoting In re Apple, 602 F.3d at 915).
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Apr. 25, 2005) (finding potential delay of case already set for trial weighed against transferring case). Faced with a similar issue, the court in Mattel, Inc. v. Robard’s, Inc. found that the interests of judicial economy outweighed the defendants’ inconvenience: Although the defendants raise compelling grounds for transfer, the late timing of this motion creates concerns of judicial economy that outweigh considerations of inconvenience and expense to the defendants. . . . Between [defendant’s] poor health and . . . three young children, the defendants will clearly be inconvenienced by having to travel to the Southern District of New York for trial. . . . However, the parties have already expended considerable time and expense in conducting discovery . . . . Transferring the case at this juncture would unnecessarily require another court to become familiar with this action. 139 F. Supp. 2d 487, 490-91 (S.D.N.Y. 2001). As in the quoted case, and because the Estate “has presented no logical reason that transfer would promote an efficient resolution of this dispute,” the interests of justice weigh in favor of denying transfer. Oien, 824 F. Supp. 2d at 905.

(b)

Plaintiff’s Choice of Forum.

Generally, federal courts “give considerable deference to a plaintiff’s choice of forum.” Clergy Fin., LLC v. Clergy Fin. Serv., Inc., 598 F. Supp. 2d 989, 994 (D. Minn. 2009) (Davis, J.). Courts in this district “have repeatedly found that deference to the plaintiff’s choice of forum is appropriate where the plaintiff resides in the chosen forum.” Travel Tags, 690 F. Supp. 2d at 795. As discussed above, Governor Ventura resides in and is a citizen of Minnesota and, therefore, the nexus between Minnesota and this action is much stronger than the
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Estate will concede. In fact, Minnesota’s interest far outweighs Texas’s interest because “[a] state generally has a ‘manifest interest’ in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.” See Burger King Corp v. Rudzewicz, 471 U.S. 462, 474 (1985). The Estate’s only response is an attempt to downplay Governor Ventura’s citizenship by arguing that he is “only a part-time resident.” 21 The fact that he vacations elsewhere during the winter, however, does not strip Governor Ventura of his Minnesota residency or citizenship. Consequently, plaintiff’s choice of forum weighs against transfer. (c) Cost Comparison.

With the exception of one brief statement that “there is no reason to believe that a trial in Texas would be more expensive than a trial in Minnesota,” 22 the Estate’s memorandum fails to address the comparative costs to the parties if this case is or is not transferred. The reason for the omission is obvious, considering that both sides are represented by Minnesota counsel who would, for several weeks, have to take up residence and set up offices in Texas. The parties, of course, would bear the additional costs. Though Governor Ventura will personally incur all of the additional costs associated with a transfer, it should be noted that is only technically true that transferring to Texas will also increase costs for the Estate. Despite stating on her nation-wide promotional tour that Governor Ventura is suing “me for money. . . . For my estate, for
21 22

Def.’s Mem. 7. Def.’s Mem. 16.
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the money that I'm supposed to use to raise my children, for the money we wanted to give to other veterans,” Taya Kyle admits that HarperCollins Publishers’s insurance carrier is paying for the costs of defense, and will also be responsible for any judgment. 23 But, whether the Estate or the publisher’s insurer is paying the costs of defense, there can be no dispute that moving all of the Minnesota lawyers to Texas (where Governor Ventura’s counsel may well have to engage local counsel) for a lengthy trial will dramatically increase costs for both sides, and that a cost comparison therefore weighs against transfer. (d) Judgment Enforcement.

Governor Ventura, like the Estate, 24 does not anticipate any difficulty in enforcing a judgment rendered by this Court. The ability to enforce the Court’s judgment, therefore, does not weigh in favor of transferring the case from the District of Minnesota. (e) Obstacles to a Fair Trial.

In deciding a motion to transfer, the plaintiff “should not be sent to a forum which in the court’s opinion does not assure it a fair trial.” Spound v. Action Indus., Inc., 369 F. Supp. 1066, 1068 (N.D. Ill. 1974); see also Queen Uno Ltd., 2 F. Supp. 2d at 1352 (denying motion to transfer to venue in which “many potential jury members may be biased against Plaintiffs and in favor of [Defendant]”). As alluded to above, there are legitimate concerns about the prospects that Governor Ventura can seat an unbiased jury if this case were moved to the Northern District in Texas. Chris Kyle lived in Midlothian, Texas, just twenty-five miles from Dallas. Following his tragic death, on Monday, February 11, 2013, he was honored with a two23 24

Olsen Aff., Ex. D. Def.’s Mem. 17.
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hour memorial service at Cowboys Stadium in Dallas, during which his casket was placed on the Cowboys’s star at midfield. 25 Nearly 7,000 people attended the service. 26 On the following day he was buried at the Texas State Cemetery in Austin, Texas, after a 200-mile funeral procession. 27 Texans lined the roadways and highway overpasses to pay their respects to Chris Kyle as the procession carried him to Austin, 28 with news agencies reporting that they “did not see a single empty overpass” along the way. 29 In the aftermath of Chris Kyle’s death, the Texas House unanimously passed a resolution honoring him, 30 a bill nicknamed the “Chris Kyle Bill” was signed into law by the Governor of Texas, 31 and a petition was started to rename a seven-mile stretch of the Central Expressway in Texas the “Chris Kyle Expressway.” 32 Governor Ventura is not in any way discounting the mourning and loss felt by those who knew or respected Chris Kyle. But it is simply not credible for the Estate to argue that Governor Ventura would receive as fair a trial in Texas as he would in Minnesota, given the visceral emotions Chris Kyle evokes in so many Texans, particularly in the Dallas area. Though this fact is purportedly lost on the Estate, it has not been lost on the media, which reported that Taya Kyle “asked that the suit be moved from Minnesota to North Texas where, on Feb. 11, a crowd estimated as large as 7,000

25 26

Olsen Aff., Ex. E. Id. 27 Id., Ex. F. 28 Id., Ex. G. 29 Id., Ex. H. 30 Id., Ex. I. 31 SB 162, 2013 Leg., 83(R) Sess. (Tex. 2013); see also Olsen Aff., Ex. J. 32 Olsen Aff., Ex. K.
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attended her husband's funeral service at Cowboys Stadium.” 33 For the Estate to now argue that “[t]here is no reason to believe . . . that [either party’s] respective ability to obtain a fair trial will be impacted by transfer,” 34 is to ask this Court to suspend common sense and ignore reality. In fact, and as mentioned above, defense counsel’s strategy has been, from the very beginning, to disparage and vilify Governor Ventura at every opportunity, in an effort to prejudice the jury pool. Rather than address the merits of the case, defense counsel has made it a practice to call Governor Ventura’s integrity into question, describing him as both dishonest and indifferent toward military families. Examples include the following: [T]he lawsuit itself at this point conveys the message that Ventura has little or no regard for the feelings of mourning family members of deceased veterans. 35 In his pursuit of this lawsuit after the death of Chris Kyle, Ventura has added to the burdens and trauma of a widow whose distinguished husband was brutally murdered. 36 Plaintiff’s motion . . . to substitute Taya Kyle . . . as defendant in place of her murdered husband comes as a disappointment, but no surprise. . . . Continuing this action will serve no useful purpose, and likely will promote public perception of Jesse Ventura as someone who has little or no regard for the feelings and welfare of surviving family members of deceased war heroes. 37 [Governor Ventura is a] frequent fanfaron [defined by Webster’s as “an empty boaster”] of future prospects for public office. 38
33 34

Id., Ex. L. Def.’s Mem. 17. 35 Def.’s Mem. 2-3. 36 Id. 37 Def.’s Resp. to Pl.’s Mot. to Substitute Taya Kyle 1. 38 Def.’s Mem. in Supp. of Mot. for Partial Summ. J. 1.
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Ventura has only his own word that Kyle did not punch him on October 12, 2006, after Ventura made the insensitive remarks – and Ventura has sworn to so many conflicting statements that none of them deserve any consideration. 39 What Plaintiff’s Memorandum at 2–38 labels “Statement of the Facts” is instead a toxic concoction of argument, mischaracterization, incomplete or distorted citations to discovery (often simply his own argumentative answers to interrogatories), and unsupported assertions, mixed with an occasional fact. 40 Plaintiff has a tenuous relationship with facts. 41 Defense counsel’s request to transfer this case to Dallas, the venue most likely to produce a favorable jury pool for the defense, is merely the culmination of this strategy. Defense counsel is attempting to reap the benefits of a systematic effort to prejudice the jury pool against Governor Ventura, and Texas is the perfect place to do so. Fairness, therefore, weighs against transfer. (f) Conflict of Laws.

When a defendant seeks to transfer a case under 28 U.S.C. § 1404(a), “the transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue. A change of venue under § 1404(a) generally should be, with respect to state law, but a change of courtrooms.” Van Dusen, 376 U.S. at 639; see also Oien, 824 F. Supp. 2d at 905. As this Court has already determined that Governor Ventura’s claims will be determined by Minnesota law, conflict of laws should be a non-factor. Def.’s Mem. in Opp’n to Pl.’s Mot. to Amend to Claim Punitive Damages 2. Id. at 3. 41 Def.’s Mem. in Supp. of Mot. to Strike Pl.’s Belated and Sham Third Supplemental Answers to Interrogs. 9.
40 39

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The Estate purports to agree, stating at one point that conflict of law issues are not “material to the analysis in this case.” 42 But then, buried in a footnote, the Estate argues that Supreme Court jurisprudence will only dominate the claims “if Minnesota law applies.” 43 The Estate then goes on to argue that either the law of Texas or New York should apply to this case, and that neither state would allow Governor Ventura’s claims for misappropriation and unjust enrichment. The argument is disingenuous. While conflicts of law should not be an important factor at this point, the Estate has brought the issue to the forefront by revealing that it intends to relitigate the applicability of Minnesota law if this case is transferred. Clearly, it is not in the interest of justice (or judicial economy) to transfer the case to a venue in which the Estate will attempt to reargue an issue that was conclusively decided against it by this Court. (h) Local Court to Determine Local Law.

While federal district courts are presumed to be equally capable of applying the law of any given state, the preference is for local courts to determine questions of local law. See Huggins v. Stryker Corp., -- F. Supp. 2d --, Civ. No. 09-1250, 2013 WL 1191058, at *7 (D. Minn. Mar. 25, 2013) (Tunheim, J.) (“Although the District of Oregon is capable of applying Minnesota’s statute of limitations, the Eighth Circuit has suggested that it is preferable for local courts to determine issues of local law.”) (citing Terra Int’l, 119 F.3d at 696). This is particularly true where the local law to be applied is unique. See Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1170 (10th Cir. 2010) (“When the merits of an action are unique to a particular locale, courts favor adjudication
42 43

Id. Id.
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by a court sitting in that locale.”); see also Chapman v. Sorenson, Civ. No. 10-711, slip op. at 2 (D. Minn. June 7, 2013) (Davis, J.) (transferring to federal court in Washington because the case would “likely turn on unique aspects of Washington law” that differed significantly from Minnesota law). This Court has already determined that Minnesota law applies to Governor Ventura’s claims. This determination, coupled with the fact the Estate will argue that many of Governor Ventura’s claims are not recognized in Texas, dictates that this Court is in a superior position to determine the merits of the case. Therefore, the final factor also weighs against transfer.

CONCLUSION For all of the foregoing reasons, the Estate’s motion to transfer venue should be denied. HENSON & EFRON, P.A. s/ David Bradley Olsen David Bradley Olsen, 197944 Court J. Anderson, 331570 John N. Bisanz, Jr., 0389098 220 South Sixth Street, Suite 1800 Minneapolis, Minnesota 55402-4503 Telephone: 612-339-2500 Facsimile: 612-339-6364 Attorneys for Plaintiff

Dated: September 3, 2013.

By

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