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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Gov. Jesse Ventura, a/k/a James G. Janos, Plaintiff, vs. TAYA KYLE, as Executor of the Estate of Chris Kyle, Defendant.

Civil No. 12-0472 (RHK/AJB)

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO TRANSFER VENUE

Introduction This already unusual defamation case became even stranger after the murder of original defendant Chris Kyle, not simply because of the circumstances of Chris Kyles death but because Jesse Venturas very act of continuing this lawsuit against Kyles widow confirms and compounds the sting of the allegedly false statement at the center of the dispute. The statement itself is essentially that Ventura loudly criticized the Iraq war and American leaders at a bar full of people mourning the loss of a fallen SEAL, that he told Kyle you deserve to lose a few, made aggressive gestures, and that Kyle punched him. The sting of that statement is to portray Ventura as a person more concerned about himself than about the feelings of surviving family members and friends of a deceased war hero and as someone heedless of the impact of his own actions upon such mourners.

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In opposing Venturas motion to substitute Taya Kyle, as executor of the estate of Chris Kyle, as defendant, the Executor noted that Venturas continuation of this lawsuit against her would establish that portrayal more clearly than any of Chris Kyles statements. This case is unusual because the possible impact of the allegedly false and defamatory statements 1 so closely coincides with the possible (and possibly even greater) impact of Venturas subsequent deliberate litigation decisions. Ventura had a choice to continue this lawsuit, or to dismiss it after Chris Kyle died. He chose to continue the lawsuit. Public reaction to that choice was not favorable. Ventura had another choice when Taya Kyle asked to move trial of this action to Texas to mitigate the effect of trial on her young children. In opposing transfer, Ventura has chosen to regard his own convenience more highly than the convenience of the Kyle family, and complains that a Texas jury pool would likely be biased against him. The motion to transfer is not about whether Ventura is entitled to continue his lawsuit to pursue his oft-cited goal of clearing his name. Rather, it is simply about managing the litigation so that Ventura can pursue his rights without inflicting unnecessary pain on the Kyle family. Yet once again, Venturas choices convey the message that he is more Ventura and his counsel adamantly assert that the deserve to lose a few statement amounts to an accusation that Ventura committed treason. (E.g., Dkt. #102 at 42; Dkt. #183-4 at p.2; Ventura Tr.-307-09.) Such exaggerated allegations have no role here. Plaintiffs cannot base recovery in a libel action upon their own interpretations of defendants statements, rather than on the statements actually made. Conroy v. Kilzer, 789 F. Supp. 1457, 1462 (D. Minn. 1992). Furthermore, as a matter of law, the statement at issue cannot amount to an accusation of treason; the attributed quotation may be repugnant to listeners but is entitled to constitutional protection. Phelps-Roper v. Koster, 713 F.3d 942, 946, 948 (8th Cir. 2013) (Westboro Church members displayed signs at soldiers funerals displaying such statements as Thank God for Dead Soldiers). -2dms.us.52753120.05

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concerned about himself than about the feelings of surviving family members and friends of a deceased war hero and as someone heedless of the impact of his own actions upon such mourners. If anything, the negative message from Venturas decisions in this lawsuit is stronger than any negative message from the Chris Kyles statements, because the lawsuit is a calculated decision, while the comments attributed to Ventura at McPs might be dismissed as casual callousness. This Court has broad discretion to make a different decision. The applicable legal factors favor granting the Executors motion to transfer venue of this action to Texas, at least for purposes of trial, at a time and in a manner that the Court concludes will preserve judicial economy, including a possible inter-circuit transfer so that the same judge can continue to address the merits of the case. Statement of Facts Venturas Memorandum asserts as fact various matters that are flatly untrue or are wrenched from proper context. I. Taya Kyle did not voluntarily inject herself into this lawsuit. Venturas Memorandum at 3 asserts that Taya Kyle could have avoided any inconvenience from attending trial in Minnesota by letting a relative, a lawyer, an accountant, a bank trust officer, or a friend serve as Executor. As she explained in her Declaration (Dkt. #176, 3-4), however, the administration of Chris Kyles affairs involves many tasks. Dealing with this lawsuit is only one such responsibility. Texas law does not permit the division of tasks among multiple task-specific executors. If Taya -3dms.us.52753120.05

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Kyle could have avoided stepping into the role of Defendant in this lawsuit, without stripping herself of other powers and responsibilities, she would have done so. II. Insurance will not cover all of the possible costs and damages in this lawsuit. Chris Kyle was an additional insured under the Mutual Insurance Company policy issued to HarperCollins Publishing, Inc. That policy reduces but does not eliminate the financial impact of this lawsuit upon Taya Kyle. For example, Count III (unjust enrichment) seeks restitution to Governor Ventura for all property and benefits unjustly received, including but not limited to income from the sale of American Sniper books and/or any subsidiary or ancillary rights sales. To the extent that Ventura is seeking disgorgement or an actual share of the profits from the book through this claim, the insurer views that claim as falling outside the insurance coverage. Like Chris Kyle before his death, Taya Kyle intends to donate proceeds from the book royalties to worthy organizations and military families, including payments to the families of his deceased comrades, Marc Lee and Ryan Job. A recovery of book proceeds from the Kyle Estate therefore would be at the expense of the mourning families of deceased war heroes. The possibility (however remote) of such a recovery clouds the extent of any distribution of such proceeds, in keeping with the expressed intention of Chris Kyle before his death, to military charities and to the families of deceased soldiers a class that now, unfortunately, includes Chris Kyles own widow and children. Ventura is indeed suing Taya Kyle for money that she might have to use to raise her children. -4dms.us.52753120.05

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The insurer also does not cover travel expenses for Taya Kyles children and bodyguard. As a result, when she traveled to Minneapolis for two nights in connection with the July 15 court conference, Taya Kyle had to leave her children behind and had to make personal arrangements for the airfare and lodging of her bodyguard. The contrary suggestions in Venturas Memorandum at 2-3 & n.3 and p. 7 are inaccurate. III. Taya Kyles travel for non-trial events does not have the same impact as travel to Minneapolis for weeks of trial would have. Venturas Memorandum at 4-5 and 7 incorrectly suggests that trial in Minnesota would be no more inconvenient to Taya Kyle than her trips related to the Patriot Tour, the National Rifle Association annual convention, or media appearances in New York. As she explained her Declaration (Dkt. #176, 7), Taya Kyle has structured nearly all of her out-of-town trips to minimize the time away from her children. Her children accompany her on some trips. During the Patriot Tour, she returned to her children for multiple days between the stops at various cities; she was not away from them for the entire time of the Tour. None of those trips involved the multi-week time commitment that would be involved in the trial of this case.

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Argument Venturas Memorandum also errs in its discussion of legal principles. I. The inconvenience to a widow with two young children is a compelling ground for transfer, timely asserted. In Mattel, Inc. v. Robards, Inc., 139 F. Supp.2d 487, 490-91 (S.D.N.Y. 2001), the court acknowledged that the fact that the young children of two of the individual defendants raised compelling grounds for transfer. It denied the change of venue due to timing: trial was imminent, id. at 498, trial was unlikely to last more than two or three days, id. at 491, and the affected defendants brought the motion about 14 months after being named in the suit, id. at 489. In contrast, Taya Kyle filed this motion on August 5 (Dkt. #173), 18 days after this Court granted the motion to substitute on July 18 (Dkt. #171) and eight days after a meet and confer with Venturas counsel on that issue (among others) (see Dkt. #174). Trial will last considerably more than two or three days, and is more than seven months away. 2 II. This Court can structure the timing of transfer to preserve judicial economy. A. The Court can conclude supervision of discovery prior to transfer.

Chief Magistrate Judge Boylan has spent considerable time supervising discovery and other non-dispositive matters. Transfer of this case for trial will not nullify that judicial attention. Discovery was largely concluded at the time Chris Kyle died, and the

In Van Dyke v. Offshore Specialty Fabricators, Inc., No. Civ. A. G-04-525, 2005 WL 1249257, at *2 (S.D. Tex. Apr. 25, 2005), a potential delay in a trial scheduled for three months later weighed only slightly against transfer. -6dms.us.52753120.05

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deadline for concluding the limited remaining discovery is October 15. Transfer need not occur until all non-dispositive matters have been resolved. B. The Courts attention to dispositive matters has been more limited, and its knowledge can be preserved even if venue is transferred to Texas for purposes of trial.

In contrast to the multiple non-dispositive matters, this Court so far has addressed only the dispositive matter of Defendants motion for partial summary judgment. Venturas Memorandum at 18 contends that the issues of choice of law and of whether applicable law would allow Venturas claims for misappropriation and unjust enrichment have been conclusively decided against [Defendant] by this Court. This Court indeed denied Chris Kyles motion for partial summary judgment. However, Ventura ignores Rule 54(b): Absent a direction of entry of final judgment and an express determination that there is no just reason for delay, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties rights and liabilities (emphasis added). This Court is well aware of that principle. Northwest Airlines, Inc. v. Astraea Aviation Services, Inc., 930 F. Supp. 1317, 1323 (D. Minn. 1996). Thus, if this case survives Defendants motion for summary judgment (addressing Venturas inadequate showings on the issues of material falsity and actual malice), and if the case proceeds to trial, whether in Minnesota or in Texas, then Defendant properly can -7dms.us.52753120.05

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raise, and intends to raise, issues of choice-of-law and the legal standards for misappropriation and unjust enrichment with the trial court, in connection with jury instructions or otherwise. The law-of-the-case doctrine does not prevent a district court from reconsidering prior rulings; an order denying summary judgment is interlocutory, and leaves the trial court free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law. Baisden v. Im Ready Productions, Inc., 693 F.3d 491, 506 (5th Cir. 2012); Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 171 (5th Cir. 2010); American Canoe Assn. v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003); Geffon v. Micrion Corp., 249 F.3d 29, 38 (1st Cir. 2001). To the extent that this Court wishes to minimize its own judicial investment in dispositive matters, it could transfer the case upon the conclusion of discovery, for purposes of summary judgment as well as for purposes of trial. If this Court wishes to bring its personal experience with this matter to bear on dispositive motions, it could defer ruling on the motion to transfer venue until after ruling on Defendants motion for summary judgment. And if this Court wishes to further utilize its familiarity with the case, it could seek an inter-circuit assignment so as to remain with the case, see Defendants Memorandum (Dkt. #172) at 2, and thereby avoid any impact at all on the scheduled May 1, 2014 trial date. The interest of judicial economy does not weigh against transfer under the circumstances of this case. -8dms.us.52753120.05

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III.

Trial in Texas is no more unfair to Ventura than trial in Minnesota would have been for Chris Kyle. This lawsuit involves two high-profile individuals, and jury selection in either

Minnesota or Texas likely will uncover persons who have strongly positive or negative opinions about one or the other or both. That does not mean that it would be impossible to select an impartial jury, with the aid of careful voir dire. See BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., No. 3-08-cv-1779-L, 2009 U.S. Dist. LEXIS 28146, at *18 (N.D. Tex. Apr. 3, 2009) (If the case proceeds to trial, the court and the lawyers can use proven voir dire techniques to eliminate potential jurors with any actual bias.);Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango, 464 F. Supp.2d 1095, 1099 (D. Colo. 2006) (any potential bias in the jury pool can be adequately ferreted out during the jury selection process); Natl Inst. For Strategic Tech. Acquisition & Commercialization v. Ford Motor Co., No. 10-1346-SAC, 2011 U.S. Dist. LEXIS 26957, at *22 (D. Kan. March 15, 2011); In re Wyoming Tight Sands Antitrust Cases, 723 F. Supp. 561, 563 (D. Kan. 1988). Venturas Memorandum at 7-8 and 14-16 expresses concerns about the prospects that Governor Ventura can seat an unbiased jury if this case were moved to the Northern District in Texas, noting that nearly 7,000 people attended Chris Kyles memorial service in Dallas and that many other Texans lined roadways and highway overpasses as the funeral procession carried him to Austin.

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The Northern District of Texas includes approximately 6.5 million people, compared to approximately 5.167 million in the District of Minnesota. 3 The metropolitan area of Dallas County (Dallas) and Tarrant County (Ft. Worth) is about 4.33 million, 4 compared to the 2010 seven-county Minneapolis-St. Paul metropolitan population of about 2.85 million. 5 The jury pool in either location would be sizeable. 6 Ventura received 773,713 votes statewide in his successful campaign for governor in 1998. 7 That is more than 110 times the number of people who attended Chris Kyles memorial service. Venturas portrait hangs in the State Capitol. He started this lawsuit in Hennepin County District Court in January 2012. As governor, he appointed many judges See statistics from 2006 available at http://www.fedstats.gov/mapstats/demographic/fjd/77.html and http://www.fedstats.gov/mapstats/demographic/fjd/42.html. See statistics from 2012 estimates available at http://quickfacts.census.gov/qfd/states/48/48113.html and http://quickfacts.census.gov/qfd/states/48/48439.html. See http://www.metrocouncil.org/News-Events/Planning/News-Articles/TwinCities-population-is-growing-and-diversifying.aspx. Venturas Memorandum at 7 cites Queen Uno Ltd. Pship v. Coeur dAlene Mines Corp., 2 F. Supp. 2d 1345 (D. Colo. 1998). The question in that case was whether the case should be transferred to a court in Coeur dAlene, Idaho, a town that shared defendants name and was home to only about 45,000 people, many of whom Defendant employed. That situation is vastly different from the present circumstances.
7 6 5 4 3

See results available at http://www.sos.state.mn.us/index.aspx?page=289.

Chris Kyles statements in January 2012 had no discernible impact upon Minnesotans perception of Ventura. On October 8, 2012, Public Policy Polling released results of a public opinion poll of Minnesotans that included favorable/unfavorable/not sure questions concerning Ventura. Compared to similar questions on June 6, 2011, Venturas favorable percentage remained at 29%, while his unfavorable percentage declined slightly from 58% to 53%, and the not sure results went up from 13% to 18%. The differences were within the reported margins of error for the two polls. (Dkt. ##1138 at p.3, 113-9 at p.4.) -10dms.us.52753120.05

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in the state court system, including nine who were then serving as judges on the 62-judge Hennepin County bench, four then serving on the 19-judge Minnesota Court of Appeals, and two then serving on the seven-justice Minnesota Supreme Court. Ventura insisted upon identifying himself in the caption of this lawsuit as Governor Jesse Ventura even though he was not suing in any official capacity and he had left office a decade earlier. Chris Kyle never challenged venue in Minnesota based on any perception that he could not receive a fair trial here due to Venturas possible popularity or influence in this State. Instead of running away from a change of venue to Texas, Ventura ought to display a level of courage, and faith in the judicial system, similar to that shown by Chris Kyle during his lifetime. In resisting a transfer of venue here, Ventura has a heavy burden to show that the juror pool in the Northern District of Texas would be so biased, through prejudicial pretrial publicity and/or some direct interest, as to prevent a fair trial. See Haworth, Inc. v. Herman Miller, Inc., 821 F. Supp. 1476, 1480-81 (N.D. Ga. 1992). One federal judge emphatically rejected an argument against transferring venue similar to the one Ventura presents here, noting that the chimerical supposition proffered to oppose transfer involves an offensive implication: that neither a federal judge nor a federal jury from [the proposed new district] could provide him with a fair trial. Doage v. Board of Regents, 950 F. Supp. 258, 260 (N.D. Ill. 1997).

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IV.

Cost and inconvenience to counsel are not proper factors on a change of venue motion. Venturas Memorandum at 13-14 complains that trial in Texas would be more

costly and inconvenient for current counsel than trial in Minnesota. Ventura ignores the applicable law, cited in Defendants Memorandum at 9 n.2: The convenience of the parties counsel is given little or no weight in the convenience analysis. Moores Federal PracticeCivil, 111.13[1][e][iii]. Conclusion Venturas opposition to Taya Kyles reasonable request to transfer venue to Texas, at least for purposes of trial, is factually and legally insufficient. It should gain no traction in this Court, and it likely will further damage him in the court of public opinion, regardless of the outcome of this motion or of the disposition of this lawsuit. The inconvenience to the widowed and now-working mother of two small children in having to attend a weeks-long trial in Minnesota, far from her home, should count for more than any inconvenience to a semi-retired empty-nester in having to attend trial in Texas, with some possible disruption to his annual months-long leisure activities at his home in Mexico. This Court should grant Defendants motion and transfer venue to the Northern District of Texas, at whatever point in these proceedings the Court may deem appropriate.

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Dated: September 10, 2013

FAEGRE BAKER DANIELS LLP

By: s/Leita Walker John P. Borger, #9878 Leita Walker, #387095 90 South Seventh Street, Suite 2200 Minneapolis, MN 55402 Telephone: (612) 766-7000 Fax: (612) 766-1600 john.borger@FaegreBD.com leita.walker@FaegreBD.com Attorneys for Taya Kyle, Executor of the Estate of Chris Kyle

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CASE 0:12-cv-00472-RHK-AJB Document 184-1 Filed 09/10/13 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Gov. Jesse Ventura, a/k/a James G. Janos, Plaintiff, vs. TAYA KYLE, as Executor of the Estate of Chris Kyle, Defendant.

Civil No. 12-0472 (RHK/AJB)

LR. 7.1(f) WORD COUNT CERTIFICATE OF COMPLIANCE REGARDING REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO TRANSFER VENUE

I, Leita Walker, certify that the Reply Memorandum in Support of Defendants Motion to Transfer Venue filed on September 10, 2013 complies with Local Rules 7.1(f) and 7.1(h). I further certify that, in preparation of this memorandum, I used Microsoft Word 2007 and that this word processing program has been applied specifically to include all text, including headings, footnotes, and quotations in the following word count. I further certify that the above referenced memorandum contains 3,088 words.

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Dated: September 10, 2013

FAEGRE BAKER DANIELS LLP

By: s/Leita Walker John P. Borger, #9878 Leita Walker, #387095 90 South Seventh Street, Suite 2200 Minneapolis, MN 55402 Telephone: (612) 766-7000 Fax: (612) 766-1600 john.borger@FaegreBD.com leita.walker@FaegreBD.com Attorneys for Taya Kyle, Executor of the Estate of Chris Kyle
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