jesse venture v taya kyle

7/28/2019 Jesse Venture v Taya Kyle

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CASE 0:12-cv-00472-RHK-AJB Document 153 Filed 05/22/13 Page 1 of 7


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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

Plaintiffs 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 Venturas 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 Venturas 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.

1Although Plaintiffs counsel received a copy of the Letters Testamentary,

Plaintiffs Motion and Memorandum archaically refer to Taya Kyle as executrix and

his Memorandum at 2 places quotation marks around the title Executor. Executor is 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.Fronings, 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 may and shall,

the normal inference is that each is used in its usual sensethe 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 Venturas motion.

II. Continuation of this Action Would Serve no Useful Purpose.

Venturas Memorandum at 6 asserts that it would be unjust to permit the estate to

continue to profit from Kyles wrongful conduct and to leave Governor Ventura without

redress for ongoing damage to his reputation. Venturas 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 Kyles 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 Kyles

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



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basis for retraction or apology. She also would never dishonor her husbands memory by

issuing a retraction or apology simply to avoid the burden of litigation.

Second: Continuing this lawsuit will not vindicate or restore Venturas 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/media-

commentator reputation.2

As to his unjust enrichment/misappropriation claims, no

reasonable, objective person could conclude that the Books success is attributable to the

two pages of Scruff Face in 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 Venturas loud

criticisms of the Iraq war and American political leaders; Kyle asked Ventura to keep it

down out of respect for the occasion; Ventura rebuffed the suggestion and commented

2See Chris Kyles Response to Plaintiffs Motion to Amend Scheduling Order

(Doc. #112) at 6-7 & n.30.

3See Defendants Memorandum in Opposition to Plaintiffs 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 Venturas continuation of this lawsuit against Taya Kyle establishes

that portrayal more clearly than any of Chris Kyles 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 Venturas motion to substitute Taya Kyle,

Executor of the Estate of Chris Kyle, as the defendant in this case.

4Compare R. Scott Moxley, Judge Tosses Out Businessmans 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 owners] 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.).

http://blogs.ocweekly.com/navelgazing/2013/04/shaheen_sadeghi_lawsuit.php)http://blogs.ocweekly.com/navelgazing/2013/04/shaheen_sadeghi_lawsuit.php)


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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

[email protected]

[email protected]

Attorneys for Taya Kyle, Executor of

the Estate of Chris Kyle, and

previously attorneys for Defendant

Chris Kyle (deceased)

mailto:[email protected]:[email protected]:[email protected]:[email protected]

jesse venture v taya kyle

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