1. law, govt and politics

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ERICA KINSMAN,
Plaintiff,
v.
Case No: 6:15-cv-16-Orl-31KRS
THE FLORIDA STATE UNIVERSITY
BOARD OF TRUSTEES,
Defendant.
ORDER
This matter comes before the Court without a hearing on the Motion to Transfer Case
(Doc. 23) filed by the Defendant, the response in opposition (Doc. 37) filed by the Plaintiff, the
reply (Doc. 43) filed by the Defendant, and the Plaintiff’s sur-reply (Doc. 45).
I.
Background
The Plaintiff, Erica Kinsman (“Kinsman”), is a former student at Florida State University
(“FSU”). The Defendant, the FSU Board of Trustees (the “Board”), is the entity charged with
administering the university. See Fla. Stat. § 1001.72. Kinsman alleges that in December 2012,
while a freshman, she was raped by another FSU student at an off-campus apartment in
Tallahassee. She contends that school administrators failed to properly investigate and respond to
her allegations, and that these failures violated the school’s obligations under Title IX of the
Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (hereafter, “Title IX”).
Kinsman filed this suit on January 7, 2015, asserting two claims under Title IX. Although
most (if not all) of the events at issue in her suit occurred in or near Tallahassee, which is located
in the Northern District of Florida, Kinsman chose to file her suit in Orlando, which is located in
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the Middle District of Florida. By 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. 1
II.
Legal Standards
Venue statutes are intended to “protect[] a defendant from the inconvenience of having to
defend an action in a trial court that is either remote from the defendant’s residence or from the
place where the acts underlying the controversy occurred.” VE Holding Corp. v. Johnson Gas
Appliance Co., 917 F.2d 1574, 1576 (Fed. Cir. 1990) (citation omitted). To accomplish this, the
venue statutes limit a plaintiff’s choice of forum to only certain courts from among all those that
might otherwise acquire personal jurisdiction over the defendant. Id. When a case is filed in a
district or division where venue is not proper, the court must dismiss the case or transfer it to a
district or division in which it could have been brought. 28 U.S.C. § 1406(a).
The term “personal jurisdiction” refers to a court’s authority to impose a binding judgment
against a party. A lack of personal jurisdiction may be waived by the affected party. See, e.g.,
Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982). Personal
jurisdiction comes in two types: general and specific. Where a court has general jurisdiction over
a party, the court may impose a binding judgment against that party in regard to claims that have
no connection to the party’s activities within the forum. A court that has specific jurisdiction over
a party may only impose a binding judgment in regard to claims that arise out of or relate to that
party’s activities within the forum. See, e.g., Burger King v. Rudzewicz, 471 U.S. 471-72 (1985).
1
The Board also argues that, even if venue is proper in the Middle District, the case
should be transferred because the Northern District is a much more convenient forum. Because
the Court concludes that venue is improper in this district, this opinion will not address the
Board’s alternative argument.
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The plaintiff bears the burden of showing that venue is proper. See Wai v. Rainbow
Holdings, 315 F.Supp.2d 1261, 1268 (S.D.Fla. 2004) (citing cases). In assessing whether venue
is proper, the court must accept all well-founded allegations in the complaint as true, unless
contradicted by affidavits from the defendant. Id. The court must draw all reasonable inferences
and resolve all factual conflicts in favor of the plaintiff. Id.
III.
Analysis
The general federal venue statute, 28 U.S.C. §1391, provides that a civil action such as this
one may be brought in
(1) a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be
brought as provided in this section, any judicial district in which any
defendant is subject to the court's personal jurisdiction with respect
to such action.
28 U.S.C. § 1391(b). Neither the second nor the third subdivisions of Section 1391(b) can be
satisfied in the instant case. The events and omissions underlying Kinsman’s claims are alleged
to have occurred in the Northern District, not the Middle District, rendering § 1391(b)(2)
inapplicable. And it is undisputed that the Board resides in the Northern District, meaning that
Kinsman could bring suit against it there, so § 1392(b)(3) would not allow her to bring suit in the
Middle District. Thus, to show that suit was properly brought here, Kinsman must show that for
purposes of venue the Board resides in the Middle District as well as the Northern District.
A.
Waiver
Kinsman first argues, in essence, that venue is proper here because the Board did not
object to this Court’s assertion of personal jurisdiction over it. She argues that corporate
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defendants “reside,” for venue purposes, in any district in which they are subject to personal
jurisdiction. The board’s failure to object to personal jurisdiction, the argument continues,
established that the Board resides in this district, and that venue is proper here.
In making this argument, Kinsman relies in part on a subdivision of 28 U.S.C. §1391(c),
which is titled “Residency.” The relevant subdivision reads as follows:
(2) an entity with the capacity to sue and be sued in its common
name under applicable law, whether or not incorporated, shall be
deemed to reside, if a defendant, in any judicial district in which
such defendant is subject to the court’s personal jurisdiction with
respect to the civil action in question;
28 U.S.C. § 1391(c)(2).
Although it is true that the Board has not raised an objection on personal jurisdiction
grounds, Kinsman’s argument fails. It is indisputable that the Board was created in Florida and
carries out the vast bulk of its activities here. Corporations that incorporate in a particular state or
have their principal place of business there have agreed to be subject to the general jurisdiction of
the courts of that state. See, e.g., J. McIntyre Machinery, Ltd. v. Nicastro, 131 S.Ct 2780, 2797
(2011) (“Citizenship or domicile – or, by analogy, incorporation or principal place of business for
corporations – also indicates general submission to a State’s powers. . . . These examples support
exercise of the general jurisdiction of the State’s courts and allow the State to resolve both matters
that originate within the State and those based on activities and events elsewhere.”). The Board
can hardly be said to have failed to raise an objection that it never had a legal basis to assert, and
its failure to do so cannot restrict its right to insist on proper venue. See also KM Enterprises,
Inc. v. Global Traffic Technologies, Inc., 725 F.3d 718, 733 (7th Cir. 2013) (rejecting identical
argument and stating that “[b]y conceding personal jurisdiction as to the state [of Illinois], the
LLC did not automatically waive its objections to venue in the Southern District.”).
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In addition, it is no longer the case that corporations reside (and are subject to suit) in
every district in which they are subject to personal jurisdiction. To support her argument to the
contrary, Kinsman relies on VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574
(Fed. Cir. 1990). 2 In concluding that personal jurisdiction and venue were coextensive, the VE
Holding Corp. court construed a version of 28 U.S.C. §1391(c) that read as follows:
For purposes of venue under this chapter, a defendant that is a
corporation shall be deemed to reside in any judicial district in
which it is subject to personal jurisdiction at the time the action is
commenced.
The VE Holding Corp. court stated that the quoted text “concerns the question of where venue lies
in a multidistrict state” and that, read literally, it appeared to make venue proper in any district in a
multidistrict state in which it a corporation was incorporated, licensed to do business, or doing
business. Id. at 1580 n. 18.
Obviously, the text construed in VE Holding Corp. resembles the current version of 28
U.S.C. § 1391(c)(2), quoted above, which Kinsman seeks to rely upon in this case. However, that
language no longer governs the question of where venue lies in a multidistrict state. In 2011,
Congress amended the venue statute and added 28 U.S.C. §1391(d), titled “Residency of
corporations in States with multiple districts”. It reads as follows:
For purposes of venue under this chapter, in a State which has more
than one judicial district and in which a defendant that is a
corporation is subject to personal jurisdiction at the time an action is
commenced, such corporation shall be deemed to reside in any
district in that State within which its contacts would be sufficient to
subject it to personal jurisdiction if that district were a separate
State, and, if there is no such district, the corporation shall be
2
Kinsman also cites to N. Am. Philips Corp. v. Am. Vending Sales, Inc., 35 F.3d 1576,
1577 n.1 (9th Cir. 1994). However, that case relies on VE Holding Corp. for the critical
proposition.
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deemed to reside in the district within which it has the most
significant contacts.
28 U.S.C. § 1391(d). Thus, since Congress added this language to the venue statute, a corporate
defendant that is subject to personal jurisdiction in a multidistrict state is not necessarily subject to
suit in every district in that state. 3 Where, as here, a defendant is subject to personal jurisdiction
in one district in a multidistrict state, a plaintiff who wishes to bring suit in a different district must
show that the defendant would also be subject to personal jurisdiction in the other district if that
district were treated as a separate state.
Kinsman cites to a number of cases that appear to reach a contrary result – holding that the
court possessed personal jurisdiction over a corporation and, therefore, venue was proper in the
chosen district. However, almost all of those cases were decided before the current version of 28
U.S.C. § 1391(d) took effect. 4 The one case that was decided after the amendment took effect –
Scar Heal, Inc. v. JJR Media, Inc., No. 8:14–cv–733, 2014 WL 3586500 (M.D.Fla. July 8, 2014) –
3
In her sur-reply, Kinsman argues for the first time that the Board is not a corporation but
a “public body – indeed, an arm and instrumentality of the state – that, for purposes of venue, is
merely an entity with the capacity to sue and be sued in its common name.” (Doc. 45 at 2).
Because of this, she contends that the Board’s residency is governed by § 1391(c)(2) rather than
§1391(d). (Doc. 45 at 2-3). However, Kinsman does not provide any authority to support her
argument that the Board is not a corporation or subject to 28 U.S.C. § 1391(d), and the Court has
not uncovered any. To the contrary, Fla. Stat. § 1001.72, titled “University boards of trustees;
boards to constitute a corporation,” defines the Board as a “public body corporate,” rather than
merely a “public body,” as Kinsman terms it. It also provides that each such board shall have “all
the powers of a body corporate, including the power to adopt a corporate seal, to contract and be
contracted with, to sue and be sued, to plead and be impleaded in all courts of law and equity, and
to give and receive donations.” See id. Nothing that the Court has uncovered indicates that
Florida boards of trustees are to be treated differently for venue purposes than other Florida
corporations.
4
The Federal Courts Jurisdiction and Venue Clarification Act of 2011, which added the
language now found at 28 U.S.C. § 1391(d), was approved on December 7, 2011 and had an
effective date of January 6, 2012. Federal Courts Jurisdiction and Venue Clarification Act of
2011, Pub. L. No. 112-63, § 205, 125 Stat. 758, 764. By its terms, it did not apply to any case
commenced prior to its effective date. Id.
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makes no mention of 28 U.S.C. § 1391(d). As such, the authority cited by Kinsman on this point
is not persuasive.
B.
Minimum Contacts
In the alternative to her waiver argument, Kinsman contends that the Board is subject to
personal jurisdiction in the Middle District of Florida, and therefore resides there for purposes of
28 U.S.C. § 1391, because it owns and operates four satellite campuses in the district. Kinsman
relies on a long line of cases that suggested a defendant was subject to general jurisdiction in any
forum with which it had continuous and systematic contact, such as a forum where the defendant
was regularly conducting business. See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 295, 100 S. Ct. 559, 566, 62 L. Ed. 2d 490 (1980) (finding that Oklahoma court could
not exercise general jurisdiction over nonresident auto wholesaler and retailer who, inter alia,
“carr[ied] on no activity whatsoever in Oklahoma,” who “close[d] no sales and perform[ed] no
services there,” and who “avail[ed] themselves of none of the privileges and benefits of Oklahoma
law.”). In accord with this line of cases, Kinsman argues that the Board has availed itself of the
privilege of doing business in this district and therefore resides here for purposes of venue.
However, each of the cases cited by Kinsman was decided prior to the Supreme Court’s
decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), which radically altered the legal
landscape in regard to general jurisdiction. In the words of one commentator:
For the better part of a century, courts had assumed jurisdiction over
corporations on the basis that they were doing business in the forum,
as evidenced by the corporation’s commercial presence in the state.
This basis of jurisdiction was perceived as exorbitant by foreigners
and often condemned as promoting forum shopping. Daimler
officially sounds the death knell for doing business jurisdiction in
the United States.
Tanya J. Monestier, Where is Home Depot “At Home”?: Daimler v. Bauman and the End of
Doing Business Jurisdiction, 66 Hastings L.J. 233, 233 (2014).
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In Daimler, residents of Argentina filed suit in the Northern District of California against
Daimler AG, a German public stock company headquartered in Stuttgart. Daimler AG, 134 S.Ct.
at 750-51. As in the instant case, the events at issue in Daimler had not occurred in the forum
where suit had been brought. The plaintiffs were seeking to hold Daimler AG liable for actions
taken in Argentina by its Argentinian subsidiary, Mercedes-Benz Argentina. Id. at 751. When
the defendant objected on personal jurisdiction grounds, the plaintiffs argued that Daimler AG’s
American subsidiary – Mercedes-Benz USA, LLC – had sufficient contacts with California to
subject Daimler AG to the general jurisdiction of the courts of that state. Id. In an 8-1 decision,
the Supreme Court concluded that, even assuming (1) that the American subsidiary was subject to
general jurisdiction in California and (2) that the American subsidiary’s contacts with California
could be attributed to Daimler AG, Daimler AG was not itself subject to general jurisdiction in
California. Id.
Relying in large part on its decision in Goodyear Dunlop Tires Operations, S.A. v. Brown,
131 S. Ct. 2846 (2011), the Daimler Court rejected as “unacceptably grasping” the notion that a
corporation is subject to general jurisdiction in every state in which it “engages in a substantial,
continuous, and systematic course of business.” Daimler at 760.
Goodyear made clear that only a limited set of affiliations with a
forum will render a defendant amenable to all-purpose jurisdiction
there. “For an individual, the paradigm forum for the exercise of
general jurisdiction is the individual’s domicile; for a corporation, it
is an equivalent place, one in which the corporation is fairly
regarded as at home.” 131 S.Ct., at 2853–2854. With respect to a
corporation, the place of incorporation and principal place of
business are paradigm bases for general jurisdiction. Those
affiliations have the virtue of being unique – that is, each ordinarily
indicates only one place – as well as easily ascertainable. These
bases afford plaintiffs recourse to at least one clear and certain
forum in which a corporate defendant may be sued on any and all
claims.
Daimler AG at 760 (some internal citations and quotations omitted).
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Rather than solely focusing on the corporation’s activities in the forum state, the court said,
the general jurisdiction inquiry requires “an appraisal of a corporation’s activities in their entirety,
nationwide and worldwide.” Id. at 762 n. 20. The court noted that it was not entirely foreclosing
the possibility that a corporation’s activities in a forum other than its formal place of incorporation
or principal place of business could be “so substantial and of such a nature as to render the
corporation at home in that state.” Id. at 761 n. 19. However, the court stated that such a
scenario would constitute “an exceptional case”. Id.
Obviously, the Middle District of Florida is not a paradigm forum for the exercise of
general jurisdiction over this defendant. The Board was not incorporated in this district, and it
does not have its principal place of business here. Per Daimler, to find that the Board would be
subject to general jurisdiction in this district if it were treated as a separate state – and therefore
that the Board should be deemed to reside in this district for purposes of 28 U.S.C. §1391(d) –
Kinsman must show that, when viewed in light of all of its activities, the Board’s various activities
within the Middle District of Florida are so substantial and of such a nature as to render it at home
here.
Kinsman has not made such a showing. The Board asserts, and Kinsman does not dispute,
that less than one half of one percent of the university’s students study at the four satellite
campuses, and less than one half of one percent of the university’s employees work there. Such a
comparatively tiny portion of the school’s overall activities are not enough to render the Board at
home in this district. And Kinsman offers nothing else. Accordingly, the Court concludes that
the Board is not subject to personal jurisdiction in the Middle District of Florida for purposes of 28
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U.S.C. §1391(d) and therefore venue is not proper here. Pursuant to 28 U.S.C. § 1406(a), this
case will be transferred. 5
IV.
Conclusion
In consideration of the foregoing, it is hereby ORDERED that the Motion to Transfer
Case (Doc. 23) is GRANTED as set forth above, and this case is hereby TRANSFERRED to the
United States District Court for the Northern District of Florida. The Clerk is directed to close
the file.
DONE and ORDERED in Chambers, Orlando, Florida on April 27, 2015.
Copies furnished to:
Counsel of Record
Unrepresented Party
5
In her response to the instant motion, Kinsman states that she filed suit in this district
because she fears for her safety in the Northern District. The student she accused of sexual
assault was one of the stars of FSU’s football team; when her accusation became public, she says,
she was subjected to vitriolic attacks and threats via the Internet from what she terms “FSU
football partisans,” causing her to flee Tallahassee. Among other things, to justify her choice of
venue, she points to survey results showing that 65 percent of Tallahassee-area residents identify
themselves as FSU football fans, compared to about 15 percent of Orlando-area residents.
Kinsman also argues that she might not receive a fair trial in the Tallahassee Division, in part
because of survey results showing that a majority of the population of that division has already
formed pro-FSU opinions on several of the central liability issues in the case.
As set forth above, an assessment as to whether venue is proper requires an examination of
the defendant’s relationship with the forum, not the plaintiff’s. Thus, in deciding that this case
must be transferred to the Northern District, the Court is not making a ruling as to whether
Kinsman’s concerns about her safety and about receiving a fair trial are justified. The proper
forum for resolving those concerns is the transferee court.
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