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CASE 0:12-cv-00472-RHK-AJB Document 154 Filed 05/29/13 Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Gov. Jesse Ventura, a/k/a James G. Janos, Plaintiff, vs. Chris Kyle, Defendant.

Civil No. 12-0472 (RHK/AJB)

RESPONSE TO PLAINTIFF'S MOTION TO SUBSTITUTE TAYA KYLE, EXECUTOR OF THE ESTATE OF CHRIS KYLE, AS DEFENDANT

Introduction Plaintiff s motion (Doc. #151) to substitute Taya Kyle, Executor of the Estate of Chris Kyle, as defendant in place of her murdered husband comes as a disappointment, but no surprise. Applicable law permits but does not require this action to continue. The Court may exercise its discretion and deny the motion. 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. Statement of Facts Ventura sued Chris Kyle for defamation, misappropriation of name and likeness, and unjust enrichment. On November 20, 2012, Chris Kyle filed a motion for summary judgment (Doc. #84; amended December 21, 2012, Doc. #126), and was preparing a supporting memorandum that would explain the lack of merit of Ventura s claims. On

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February 2, 2013, Chris Kyle and a friend were murdered. (Docs. #135, 150.) On May 9, 2013, the Ellis County Court at Law, State of Texas appointed Taya Kyle as Independent Executor without Bond of the Estate of Chris Kyle.1 On May 23, Ventura filed a motion to substitute Taya Kyle as the defendant in this action, although he did not properly serve Taya Kyle (currently a non-party) as required by Rules 4 and 25(a)(3). Argument I. Applicable Law Permits but does not Require the Continuation of this Action. Federal Rule of Civil Procedure 25(a)(1) provides: If a party dies and the claim is not extinguished, the court may order substitution of the proper party. Neither Texas law nor Minnesota law automatically extinguishes Ventura s claims based upon the death of Chris Kyle. In Texas, V.T.C.A., Civil Practice & Remedies Code 71.021(a) provides that a cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury.In Minnesota, most causes of action survive the death of the person asserting or defending against the cause of action. Minn. Stat. 573.01 (2012); Thompson v. Estate of Petroff, 319 N.W.2d 400 (Minn. 1982). Given the lack of conflict, the Court need not determine which law applies.

Although Plaintiff s counsel received a copy of the Letters Testamentary, Plaintiff s Motion and Memorandum archaically refer to Taya Kyle as executrixand his Memorandum at 2 places quotation marks around the title Executor. Executoris the title assigned by the Texas court. It is the title Taya Kyle should have in this proceeding.

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The language of Fed.R.Civ.P. 25(a)(1) is permissive. In re Baycol Prods. Litig., 616 F. 3d 778, 783 (8th Cir. 2010). The decision whether to substitute parties lies within the discretion of the trial judge and he may refuse to substitute parties in an action even if one of the parties so moves.Froning s, Inc. v. Johnston Feed Serv., Inc., 568 F.2d 108, 110 n. 4 (8th Cir.1978); see also Anderson v. Yungkau, 329 U.S. 482, 485 (1947) (interpreting prior Rule 25 and stating when the same Rule uses both mayand shall , the normal inference is that each is used in its usual sense the one act being permissive, the other mandatory. ). Motions to substitute are freely granted, see Baycol, 616 F. 3d at 783, but the Court does have discretion to deny Ventura s motion. II. Continuation of this Action Would Serve no Useful Purpose. Ventura s Memorandum at 6 asserts that it would be unjust to permit the estate to continue to profit from Kyle s wrongful conduct and to leave Governor Ventura without redress for ongoing damage to his reputation.Ventura s Memorandum at 4 also invokes a Pennsylvania case for the proposition that precluding a cause of action for defamation when the tortfeasor dies would deprive the plaintiff of compensation and prevent him from ever vindicating and restoring his good name. Continuation of this particular action would not serve those asserted purposes. First: If Ventura wants a retraction of or apology for Chris Kyle s statements about him, that event simply will not happen. Chris Kyle swore under oath that his accounts were true. Other witnesses have testified to the truth of the parts of Kyle s accounts that they observed first-hand. Chris Kyle did not and would not retract his statements about Ventura. Taya Kyle has no direct knowledge that would provide any -3dms.us.52149805.05

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basis for retraction or apology. She also would never dishonor her husband s memory by issuing a retraction or apology simply to avoid the burden of litigation. Second: Continuing this lawsuit will not vindicate or restore Ventura s reputation. Passionate partisans of Ventura and of Chris Kyle will not be swayed by any court ruling or jury verdict regarding truth or falsity. Third: Ventura has not suffered substantial and real damages. Ventura has no proof that the Published Statements impaired his income or his political/mediacommentator reputation.2 As to his unjust enrichment/misappropriation claims, no reasonable, objective person could conclude that the Book s success is attributable to the two pages of Scruff Facein the 379-page Book or to the mentions of Ventura in some press interviews. 3 Ventura cannot credibly claim that he is being unjustly deprived of any of the proceeds from Book royalties or movie rights. Finally: Ventura will harm more than restore his reputation by continuing this action at the expense of Taya Kyle and her children. The Published Statements relate an encounter during which grieving friends and family of a fallen SEAL, while attending a wake at a San Diego bar frequented by military personnel, overheard Ventura s loud criticisms of the Iraq war and American political leaders; Kyle asked Ventura to keep it downout of respect for the occasion; Ventura rebuffed the suggestion and commented

See Chris Kyle s Response to Plaintiff s Motion to Amend Scheduling Order (Doc. #112) at 6-7 & n.30.
3

See Defendant s Memorandum in Opposition to Plaintiff s Motion to Amend to Claim Punitive Damages (Doc. ##115, 116) at 33-35.

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you deserve to lose a few ; Ventura made aggressive gestures toward Kyle; and Kyle responded by hitting Ventura, knocking him down, and then leaving. To the extent that some people might construe this account as portraying 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, then Ventura s continuation of this lawsuit against Taya Kyle establishes that portrayal more clearly than any of Chris Kyle s Published Statements.4 Conclusion Ventura would better serve his asserted interest in burnishing his public image by taking the high road and declining to continue this lawsuit, rather than by engaging in litigation that seeks money he does not need and that unnecessarily burdens military families. Ventura seems incapable of seeing that, but this Court may view the matter more clearly and exercise its discretion to deny Ventura s motion to substitute Taya Kyle, Executor of the Estate of Chris Kyle, as the defendant in this case.

Compare R. Scott Moxley, Judge Tosses Out Businessman s Defamation Lawsuit Involving 2011 OC Weekly Profile,OC Weekly, April 24, 2013 (available at http://blogs.ocweekly.com/navelgazing/2013/04/shaheen_sadeghi_lawsuit.php) (dismissing a defamation lawsuit brought by a wealthy California real estate developer against a small business owner, the court noted: The worst thing that could perhaps be said about the [business owner s] statement is that it might imply that [the developer] is a bully. [I]t might be said, with no small amount of irony, that if it can indeed be proven that a person is a bully, this lawsuit would be Exhibit 1 in that proof. ).

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Dated: May 29, 2013

FAEGRE BAKER DANIELS LLP

By: /s/ John P. Borger 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, and previously attorneys for Defendant Chris Kyle (deceased)