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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

ERICA KINSMAN,

Plaintiff,  -
CASE NO. 

v.
Dispositive Motion

THE FLORIDA STATE UNIVERSITY

BOARD OF TRUSTEES,

Defendant.

 

MOTION TO DISMISS
AND INCORPORATED MEMORANDUM OF LAW
Defendant The Florida State University Board of Trustees (?the Board? or 
by and through the undersigned counsel, hereby respectfully moves this Court to dismiss
Plaintiff?s (?Kinsman?) Complaint under Federal Rule Of Civil Procedure 12(b)(6) because
the Complaint fails to state a claim upon which relief can be granted. For the reasons more
fullyexplained in the incorporated Memorandum of Law, the Board respectfully reduests

that the Court dismiss the Complaint.

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Preliminary Statement and Factual Backgroundl

FSU in this case ?nds itself in the unusual and unwelcome position of being adverse
to a former student and alleged sexual assault victim, Erica Kinsman. It is critical that the
University community have full con?dence in commitment to the safety and well-
being of every one of its students. Accordingly, should this-case proceed beyond this Motion
to Dismiss, the University looks forward to demonstrating the record of extensive assistance
the FSU Victim Advocate Program provided. to Kinsman, most of which she has omitted
from her Complaint.

But the Court does not need proof of this extensive care for and support of Kinsman
to resolve this case: even accepting as true the allegations of the Complaint with no further
facts, SU is not liable to Kinsman under. Title IX. Far from being deliberately indifferent to
Kinsman, FSU provided her the services of its con?dential Victim Advocate Program within
hours of her alleged sexual assault and continuously thereafter, Compl. 53, 61,164, 88,
DE. 1, and a University victim advocate informed Kinsman of the school?s student? I
disciplinary process, id. ii 61. Title of?cials at  learned of Kinsman?s alleged assault
by Winston only days before the rest of the world, when the media broke the story of
Kinsman-?s allegations in November 2013, which is consistent with her failure to allege that
she ever spoke with any FSU of?cial outside of the Victim Advocate Program prior to
August" 6, 2014. Id. 101, 129. Regrettably, the media?s reporting of Kinsman?s
allegations led to an Internet and social media backlash?harassment that FSU did not cause,

in an environment that SU could-not control. Id. 112?13. Kinsman left the University

 

FSU accepts the allegations in the Complaint as true solely for purposes of the Motion.

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when the news broke. Id. .1113. At the same time, the State Attorney for Tallahassee
conducted an investigation that resulted in a decision in December 2013 not to charge
Winston. Id. il114. Having waited for the law enforcement investigation to conclude, FSU
reviewed the record from that investigation, attempted unsuccessfully to interview Winston,
and reached its own conclusion that the record did not support student-disciplinary charges at
that time. Id. 118?20. After a great deal of correspondence between Kinsman?s attorneys
and the University, id. 122~26, Kinsman gave a Title IX interview in August 2014, id. ii
129. FSU then convened an investigative hearing, presided over by retired Florida Supreme
Court Justice Major Harding, which included live testimony from Kinsman and Winston. Id.
'll 135. Justice Harding concluded that the preponderance of the evidence did not support a

finding that Winston had assaulted Kinsman. Id. Nothing about handling of this
matter Was unreasonable?much less clearly unreasonable, which Kinsman must prove to
survive this Motion to Dismiss.

Kinsman?s'Complaint is remarkable in many ways. She does not allege identifying I
Winston as her assailant to anyone at SU other than her con?dential victim advocate before
the media broke the story of her alleged assault, causing her to leave the University. She
does not allege that FSU denied her a single request for remedial action. And?having seen
her claims of an assaUlt rejected by both the State Attorney and a University-appointed
hearing of?cer?she seeks from this Court a third bite at the apple, essentially asking this
Court to serve as a student-disciplinary appeal board. When her Complaint is stripped of its

rhetorical ?ourish and legal conclusions, its failure to allege that deliberate

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indifference caused her any harassment is clear, so Kinsman?s Complaint should be
dismissed.
MEMORANDUM OF LAW
Standard of Review

Under Federal Rule of Civil Procedure a court must dismissa complaint
whenever the plaintiff fails ?to state a claim upon which relief can be granted.? Fed. R. Civ.
P. To withstand a motion to dismiss, a complaint must ?state a claim to relief that
is plausible on its face.? Bell Art. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, ?a
complaint must present suf?cient factual matter, accepted as true, to ?raise a right to relief I
above the speculative level.? Simpson v. Sanderson Farms, Inc, 744 F.3d-702, 708 (1 1th
Cir. 2014) (quoting Twombly, 550 U.S. at 555). Although a court must accept well-pled
allegations as true at this stage, a court should not accept as true legal conclusions or
threadbare recitals of the elements of a cause of action. Ashcro?? v. Iqbal, 556 U.S.-662, 678
(2009). Moreover, a court must read the complaint ?as a whole,? without ?pars[ing] and
read[ing] in isolation the allegations in the complaint.? Rosky ex rel. Wellcare Health Plans, I
Inc. v. Farha, No. 2009 WL 3853592, at *2 (MD. Fla. Mar. 30,
2009)


Title IX provides, ?No person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the bene?ts of, or be subjected to discrimination
under any education program or activity receiving Federal ?nancial assistance.? 20 U.S.C. 

1681(a). Sexual harassment is ?discrimination? in the schOol context under Title IX, which

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allows recovery of money damages for student-on-student harassment ?in certain narrow
circumstances.? Williams v. Bd. ofRegenis of Univ._ Sys. of Ga, 477 F.3d 1282, 1293 (11th
I Cir. 2007); see also Davis v. Monroe Cnty. Bd. ofEduc., 526 U.S. 629, 633 (1999). Ina
student-on-student sexual harassment case, a plaintiff must prove foUr elements.
irsi, the defendant must be a Title IX'funding recipient. Williams, 477 F.3d at 1293.
. This element is undisputedly satis?ed in this case.
Second, an appropriate school official must have actual knowledge of the harassment. 
Id. Because Title IX requires this actual knowledge be of ?knownIstudent-on-student
harassment in its schools,? this standard necessarily requires that the school of?cial must
know that both the Victim and the alleged assailant are students. Davis, 526 U.S. at 641
(emphasis added). Otherwise, the school of?cial could not possibly know of ?student?on-
studeni harassment.? Id. (emphasis added). Moreover, the actual knowledge must belong to
an f?appropriate person,? who is, ?at a minimum, an of?cial of the recipient entity with
authority to take corrective action to end the discrimination.? Williams, 477 F.3d at 1293
(internal alterations omitted) (quoting Gebser v. Lago Vista Indep. Sch. Dist, 524 U.S. 274,
290 (1998)). In other words, ?the official with notice of the harassment must be ?high
enough up the chain?of-command that his acts constitute an of?cial decision by the school
district itself not to remedy the misconduct.? Doe v. Sch. Bd. of Broward Cray, Fla, 604
F.3d 1248, 1255 (11th Cir. 2010) (quoting Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir.
1999)).
Third, the defendant must have acted with ?deliberate indifference? to known acts of

harassment. Deliberate indifference ?is an exacting standard.? Id. at 1259'. It is met ?only

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where the. recipient?s response to the harassment or lack thereof is clearly unreasonable in

light of the known circumstances.? Davis, 526 U.S. at 648. Or another way, it-rcquires a

plaintiff to show ?an official decision by the. recipient not to remedy the violation.? Gebser,

5.24 U.S. at 290; see also Murrell v. Sch. Dist. N0. 1, Denver, Colo, 186 F.3d 1238, 1246

(10th Cir. 1999) (?That standard makes a school district liable only where it has made a

conscious decision to permit sex discrimination in its programs . . . Deliberate

indifference is therefore a high bar?wnegligence or gross negligence falls far short-of it. See, I
v. Indian River Crity. Hosp. Dist, 701 F.3d 334, 344 (11th Cir. 2012); Baynard v.

Malone, 268 F.3d 228, 236 (4th Cir. 2001). Importantly, this deliberate indifference must

subject the plaintiff to further harassment. Davis, 526 U.S. at 644. Thus, ?a Title IX plaintiff
at the motion to dismiss stage must allege that the Title IX recipient?s indifference to the

initial discrimination subjected-the plaintiff to further discrimination.? Williams, 477 F.3d at

1296; see also Hill v. Madison Cary. Sch. Bd, 957 F. Supp. 2d 1320, 1332 (ND. Ala. 2013)

must .be the deliberate indifference of the [school]. that is the causation of the

harassment suffered by the victim?). -

Fourih, the discrimination must-have been ?so severe, pervasive, and objectively
offensive that it effectively barred the victim?s access to an educational opportunity or
bene?t.? Davis, 526 U.S. at 633. Put differently, the discrimination must ?be? serious enough
to have the systemic e?eci of denying the victim equal access to an educational program or
activity.? Id. at 652 (emphasis added).

The Supreme Court has cautioned that courts in Title IX student?on-student sexual

harassment cases ?should refrain from second-guessing the decisions of school

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administrators.? Davis, 526 U.S. at 648. The Court also stressed that Title IX does not give
victims of peer harassment ?the right to mal<e particular remedial demands.? Id. Rather, ?the
recipient must merely respond to known peer harassment in a manner that is not clearly i
unreasonable.? Id. I
The Complaint Fails to State a Claim
The Complaint contains no allegation. that FSU itself directly harassed Kinsman. As
the Supreme court has explained, a funding recipient does not engage in harassment
directly, it may not be liable for damages unless its deliberate indifference ?subjects? its
students to harassment.? Id. at 644. Kinsman alleges that FSU subjected her to three distinct
forms of harassment: I
(1) being at school with Jameis Winston between January 10, 2013 (when she
allegedly recognized him as her assailant) and November 14, 2013 (when she
allegedly left campus), Compl. ll 63, DE. 1;
(2) being threatened on social media after the media on November 13, 2013,
first reported news of her allegations against Winston, e. g. id. 112; and
(-3) as a result of her alleged fears for her safety, being forced to leave FSU on
November 14, 2013, and being unable to return, 113.

Kinsman has not, however, stated aclaim under any of these theories of liability.2

 

2 Winston?s alleged assault cannot be harassment for which FSU is legally responsible. Kinsman never alleges
that FSU was aware that Winston posed a threat to Kinsman or anyone at FSU or even that Winston had any
record whatsoever of posing a threat. Davis v. Monroe Cnty. Bd. of?ine, 526 U.S. 629, 641 (1999) (holding
that Title IX requires actual knowledge of ?known student-on-student harassment in its schools? (emphasis
added)).

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A. FSU is not liable for any alleged harassment caused by Kinsman?s having
to be on campus with Winston.

FSU cannot be liable for this alleged harassment for three distinct reasons.

1. - No appropriate person at FSU had actual knowledge of Kinsman?s I
allegation until November 2013.

FSU cannOt be liable for Kinsman?s having to be on campus with Winston after the
alleged December 7, 2012, assault, because the allegations of the Complaint show that no
appropriate person at FSU had actual knowledge of the assault until NovemberS, 2013, when
SU Police Chief David Perry received the report of the Winston investigation from the
Tallahassee Police and shortly thereafter shared it with the University official overseeing the
school?s Title IX and student-disciplinary functions. Compl. 95, 101, DE. 1. Kinsman?s
initial repert to the SU Police on the night of the assault could not have given FSU-actual
notice because at that time Kinsman claimed not to know her alleged assailant?s identity. Id.
1111 48, 50. After learning her assailant?s identity'on January 10, 2013, Kinsman
shared that information with the Tallahassee Police, I'd. 11 57, but she does not allege sharing
it with the FSU Police or with any SU administrator. Kinsman does allege that, on January
17, 2013, she discussed With victim' advocate Kori Pruett that her perpetrator was a football
player at PS U. Id. 11 61. But the Complaint itself acknowledges thatlF-SU?s Victim Advocate
Program is Con?dential and exempt from any reporting requirement. Id. 11 68. And "Kinsman
never alleges that she directed any victim advocate to report her allegation to any other

of?cial at FSU.3

 

3 Kinsman alleges in Paragraph 116 that Melissa Ashton told Patricia Carroll that Kinsman wanted the Title IX
investigation and SRR proceedings to move forward in ?the fall 2013 semester.? Compl. {l 116, DE. 1. But 
nowhere in the Complaint does' she ever allege that she ever made this known. For instance, she never alleges
when she made this known (whether before or after the media reported her allegations) or to whom she made it

1'

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Indeed, strikingly absent from the Complaint is any allegation that Kinsman herself
reported her alleged assault?or the harassment she allegedly experienced as a result of being
on campus with Winston after the assault?to any appropriate person at FSU. Instead,
Kinsman?s theory of actual notice hinges entirely on her allegation that football coach
Jimbo Fisher and Senior Associate Athletics Director Monk Bonasorte in January 2013
learned from the Tallahassee Police that ?Winston was suspected in a rape investigationleast two reasons, this allegation is insuf?cient to establish actual knowledge
on the part of FSU.-

First, although it is axiomatic that Title IX liability only attaches for known student-
on-student sexual harassment, Kinsman does not-wand cannot+allege that Fisher and
Bonasorte knew that Winston?s alleged victim was an FSU student, much less that they knew
the actual identity of Winston?s alleged victim. This is a telling omission from a Complaint
that is so detailed, andcarefully crafted.

Second, even construing the Complaint as alleging that Fisher and Bonasorte knew
that Winston?s alleged victim was an FSU student, neither is an ?appropriate person? under

I Title IX. Kinsman does not?and cannot?allege that either Fisher or Bonasorte has any
authority overFSU?s student conduct or Title IX processes. See GebSer, 524 U.S. at 290
(providing that an ?appropriate person? is an of?cial who has ?authority to take corrective
action to end the discrimination?). Alleging that those men have ?control over students on

the football team? is not enough, Compl. ii 76, DE. 1; sports-related discipline has nothing to

 

known. Because the Complaint must be read as whole, this single allegation cannot overcome the lack of any -
particular factual allegations anywhere else in the Complaint about her meetings with victim advocates. See
Rosky ex rel. Wellcare Health Plans, Inc. v. Far-ha, N0. 2009 WL 3853592, at *2
(MD. Fla. Mar. 30, 2009). -

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do with the types of discipline through which a university remedies sexual harassment g,
academic accommodations, no. contact orders, residential changes, suspension, or even
expulsion), see, DeCecco v. Univ. ofS.C., 918 F. Supp. 2d 471, 492 (D.S.C. 2013) (?To
the extent [the plaintiff] relies on notice to [the head coach] as notice to she fails to
satisfy Title actual notice requirement for several reasons. First, notice to [the head
coach] is not notice to USC'(for Title IX purposes) because [the head coach] had, at most,
limited supervisory responsibility over [the assistant. coach]. This limited authority is not
enough in light of Gebser[ and] Davis . . . (internal citation omitted)); Ross v. Corp. of
Mercer Univ, 506 F. Supp. 2d 1325, 1352 n.43 (M.D. Ga. 2007) (reasoning that ?in a typical
Title IX case, an appropriate individual might be a University President, aihigh school
superintendent, or the chairman of an appropriate board of education and not a teacher, coach
or employee? because these latter types of school of?cials do not have ?the authority to ?x
?certain types? of discrimination? (emphasis in original)).

Nor can Fisher?s. and Bonasorte?s alleged reporting obligations make them
?appropriate persons? in the Title IX-sense. See compl. 11 DE. 1. The Complaint'alleges
that ?all FSU employees must report student-on?student sexual misconduct to the Dean of
Students Department.? Id. 11 81 (emphasis added). Surely any theory that would convert
every FSU employee into an ?appropriate person? necessarily fails the standard set out in
Davis and its progeny.

Indeed, it is quite telling that the Complaint faults Fisher and Bonasorte for failing to
comply "with their ?duties to report and refer the rape accusations against'Winston to

appropriate university o??icials.? 1d. (emphasis added). One of the purposes of the ?actual

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notice by an appropriate person? standard is to ensure that Title IX liability attaches only
when a plaintiff can show that there has been ?an of?cial decision by the recipient not to
remedy the violation.? Gebser, 524 U.S. at 290. Even accepting as true Kinsman?s
allegation that Fisher and Bonasorte failed to follow own reporting requirement, that 
alleged failure hardly constitutes an of?cial decision by SU on whether and how to remedy
any harassment being suffered by Kinsman.

I 2. Even if FSU had actual knowledge before November 2013, its
response was not deliberately indifferent. 

Even assuming appropriate of?cials at FSU had actual knowledge of Kinsman?s
assault as early as January 2013, the allegations of the Complaint show that FSU was not
deliberately indifferent to Kinsman?s alleged assault. The Complaint itself alleges that FSU
responded to Kinsman?s alleged assault by placing Kinsman in the care of its Victim
Advocate Program. Within hours of the alleged assault, a victim advocate, Sarah Groff, met
Kinsman at TallahasseelMemorial Hospital. Comp]. ll 53, D.E. 1. Then, another victim
advocate, Kori Pruett, who would work with Kinsman through most of 2013, took over
caring for Kinsman. Pruett met with Kinsman on January 17, 2013, February 7, 20.13,
October 25, 2013, and made a follow-up counseling center appointment for Kinsman on
November 4, 2013. Id. .61, 64, 88. During their ?rst meeting, Pruett explained the
student-disciplinary process to Kinsman and explained Kinsman?s Options for changing
classes. Id. ll 61. Kinsman makes much of the fact that she allegedly was not told about
other options, see, id. 62, 66, but these allegations mere-1y attempt to mask a glaring

omission: Kinsman never alleges that she requested any speci?c accommodation or other

11

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action (including a speci?c request to initiate-a disciplinary investigation of Winston) that
FSU denied. I I
That it was not ?clearly unreasonable? for FSU to respond to Kinsman?s alleged
assault through the services .of the Victim Advocate Program is con?rmed by the
recommendations of the April 2014 White House report Not Atone: The Report of the
White House Task Force to Protect Students ?om Sexual Assistult.4 That report emphasizes
that universities must ?give survivors more control over the process? of responding to their
assault, and it identi?es providing a con?dential victim advocate as a ?key ?best practice??
toward achieving that goal. Not Alone: The Report of the White House Task Force to
Protect Students from Sexual Assault 3, 11,- White House Task Force to Protect Students
from Sexual Assault, April 2014.5 The report observes, ?If victims don?t have a con?dential
I place to go, or think a school will launch a full-scale investigation against their wishes, many
will stay silent.? Id. at 11. Closely mirroring what the Complaint says victim
advocates did for Kinsman, the report adds that an advocate should ?help get a victim needed
resources and accommodations, explain how the school?s grievance and disciplinary process
works, and help navigate the process.? Id. Ultimately, the report counsels that no
one-size-?ts-all model of victim care. Instead, there must be options.? Id. .at 12. As a matter
'of law, it could not possibly have been clearly unreasonable for FSU to have followed a

White House-endorsed best practice in giving Kinsman the services of a victim advocate,

 

4 The Court may of course take judicial notice of this White House report. See, e. g, RT. Produce Co. v. Robert
A. Johnson Sales, Inc, 354 F. Supp. 2d 284, 285 (S.D.N.Y. 2004) (?Courts have frequently takenjudicial notice 
of of?cial government reports as being ?capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.? (quoting Fed. R. Evid. 201(b) and citing Tex. Poo. Ry. Co. v.
Pottor?,? 291 U.S. 245, 254 n.4 (1934?).

5 Available at 

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informing Kinsman of the student-disciplinary process, and deferring to Kinsman?s informed
decision not to initiate that process between January and November 2013, when she left
campus.

3. Merely being on campus with Winston is not harassment under
Title IX.

Kinsman has not alleged that, during the period between the alleged assault and her
departure from campus in November 2013, she was subjected to harassment ?so severe,
pervasive, and objectively offensive that it can be said to [have deprived her] of access to the
educational opportunities or bene?ts provided by the school.? Davis, at 650. The
Complaint alleges that-Kinsman saw Winston from across the room on the of class
and at one midterm exam, Compl. 1m 55, 65, DE. 1, but otherwise the Complaint contains no 
allegation that Kinsman had any direct contact with Winston or with any of. his friends or
associates. Indeed, the only harassment the Complaint alleges during this period is
Kinsman?s fear of the possibili@ of seeing Winston.

Accepting-as true the allegations of Kinsman?s Complaint, FSU would in no way
minimize the trauma an assault victim might feel at the thought of seeing her assailant.
Nonetheless, Kinsman?s own allegations belie the notion that she was suffering harassment
so ?severe, pervasive, and objectively offensive?ias to deny her the opportunities or benefits
of an education at FSU. Even if Kinsman alleges that others at the University should have
initiated disciplinary proceedings on her behalf, Kinsman herself does not allege seeking any
protection from Winston or discipline against him. Kinsman acknowledges in the Complaint
that she chose to remain enrolled in the one class that she and Winston shared, and that she

indeed kept going to class (the educational opportunity of being at FSU) through the rest of

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her time at FSU. And the allegations in the Complaint make clear that Kinsman ultimately.
left campus in November 2013 because of the aftermath of the media?s exposure of her
allegations, not because of any fear of Winston himself. See I'd. 112?13. .-

FSU is aware of one case in the university setting in which the court held that ?a
reasonable jury could conclude that further encounters, of any sort, between a rape victim .
and her attacker could create an environment suf?ciently hostile to deprive the victim of
access to educational opportunities provided by a university.? Kelly v. Yale? Univ, No.
CIV.A. 2003 WL 1563424, at *3 (D. Conn. Mar. 26, 2003). But the facts in
Kelly are easily distinguishable from those alleged here. In contrast to what Kinsman has
alleged, the victim in Kelly lived in the same dormitory as her assailant, and ?she repeatedly
requested academic and residential accommodations after the assault. She related to
administrators the discomfort and fear that she would feel if she encountered [the assailant].?
Id. at I

More fundamentally, taken as a bright-line rule, the holding in Kelly con?icts with

- the Supreme Court?s teaChing in Davis. The Davis Court stressed that its holding did not

require schools to engage in any particular disciplinary action to avoid liability under Title IX
and that a Title IX plaintiff does not have the right to make particular remedial demands. See
Davis, 526 U.S. at 648. But if simply being on the same campus as one?s assailant without
any speci?c request for accommodation necessarily constitutes ?severe, pervasive, and
objectively offensive harassment? for Title IX purposes, then expulsion would. be the only -
remedy. Davis plainly forecloses such a result. See id. (?We thusdisagree with respondents?

contention that, if Title IX provides a cause of action for student-on-student harassment,

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nothing short of expulsion of every student accused of misconduct. involving sexual
overtones would protect school systems from liability or damages.? (internal quotation mark
omitted))_.

B. FSU is not liable for any harassment caused by alleged social media
threats directed at Kinsman.

As her second form of alleged harassment, Kinsman claims that she was'subjected to
social media threats and epithets after the media in November 2013 broke the story of her
allegations against Winston. See Compl. 11 12, DE 1. FSU concedes that exposure to such
comments can constitute harassment that is Sufficiently severe for purposes of Title IX. See,
MS. ex rel. Susquehanna Twp. Sch. Dist, No. 2014 .WL
4273300, at *14 (MD. Pa. Aug. 29, 2014) (recognizing that being called ?Whore? and ?slut?
is sufficient harassment under Title IX 'to survive a motion to dismiss). Here, however,
Kinsman does not allege and cannot establish that FSU subjected her to the harassment she
allegedly endured through social media. I

Kinsman does not?wand of course cannot?allege that FSU itself threatened her in
any way. Rather, Kinsman alleges that, the wake of an ensuing media frenzy, [she] was
relentlessly vili?ed and threatened on the Internet and in FSU football-friendly quarters, and
her and her family?s personal and work addresses were published on the Internet, alongwith
false slurs on [her] character and threats on her life.? Compl. 1121, DE. 1. I

Even if these allegations are true, the holding of Davis is clear: ?Deliberate
indifference makes sense as a theory of direct liability under Title IX only where the funding
recipient has some control over the alleged harassment.? Davis, 526  at 644. Indeed,

Davis emphasized the Court?s intent to ?limit a recipient?s damages liability to circumstances

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wherein the recipient exercises substantial control over both the harasser and the context in
which the known harassment occurs.? 'Id. at 645. Here, of course, SU controls neither the
Internet nor the vicious trolls who allegedly used it to harass Kinsman. Kinsman?s attorneys
admitted as much in their February 21, 2014, letter to FSU, when they told FSU that
Kinsman did not envision any disciplinary proceeding against Winston that ?could eliminate
the . . . extreme third party harassment? that Kinsman had-suffered after her allegation was
reported by the media. See Ex. A (letter from John Clune and-Baine Kerr to Carolyn Egan
dated Feb. 21, 2014) (emphasis added); see also in?a note 4 (discussing why this letter may
properly be considered by the Court. at the motion-to dismiss stage). I I

As a matter of law, Kinsman also cannot establish that any alleged deliberate
indifference on part increased her: ekposure to the likelihood of being subjected to this
form of harassment. Although this Court must accept Kinsman?s factual allegations as true,
it may not accept Kinsman?s purely speculative assertions. See Simpson, 744 F.3d at 708.
Kinsman?s Complaint hypothesizes that, had FSU investigated Winston earlier, ?Winston -
wOuld have been removed as a threat to. [Kinsman] long before ever suiting up to play
football in a Seminoles jersey, and [Kinsman] would be on campus progressing toward an
FSU degree.? Comp]. ii 146, DB. 1. Yet Kinsman?s own Complaint acknowledges that a
State Attorney investigation and a University investigative hearing (presided over by retired
Florida Supreme Court Justice Major Harding) both resulted in the conclusion that Winston
should not be charged-with assaulting Kinsman. Id. 1m 114,-135, Only rank speculation

supports Kinsman?s theory that an earlier investigation would have reached a different result

imposing a sanction on Winston, derailed his college football career, and rendered Kinsman?s

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assault allegations un-newsworthy. Thus, Kinsman cannot establish that alleged
deliberate indifference could have been the proximate cause of any harassment she suffered
through social media and the Internet.

C. FSU is not liable for Kinsman?s alleged exclusion from school.

Kinsman?s third and ?nal form of alleged harassment consists of not being able to
return to school at FSU. Comp]. 113, DE 1; Davis, 526 US. at 631 (recognizing that
?physical deprivation of access to school resources? can constitute discrimination under Title
IX). Yet, read as a whole, Kinsman?s own Complaint demonstrates that her inability to
return has not been caused by alleged deliberate indifference. In fact, as the letters
referenced and quoted in the Complaint and attached here show,6 FSU has worked diligently
to try'to investigate Kinsman?s claim, take her statement, and resolve the situation.

?rst, actions in November and December 2013, after the media ?rst reported

Kinsman?s allegations and during the pendency of the State Attorney investigation, were not

 

6 See Ex. A (letter from John Clune and Baine Kerr to Carolyn Egan dated Feb. 21, 2014); Ex. (letter from
Melissa Nelson and Scott Cairns to John Clune and Baine Kerr dated Mar. 15, 2014); Ex. (letter from John
Clune and Baine Kerr to Melissa Nelson dated Mar. 25, 2014); Ex. (letter from Melissa Nelson to John Clune
dated Mar. 31, 2014); Ex. (letter from John Clune and Baine Kerr to Melissa Nelson dated Apr. 1, 2014).

Each of these letters is cited (and some are even quoted) in the Complaint. See Compl. 1111 122?26, DE. 1.
Therefore, the Court may consider them at this stage. See Fin. Sec. Assam Inc. v. Stephens, Inc, 500 F.3d
1276, 1284 (11th Cir. 2007). Here, not only are the three letters sent byKinsman?s counsel quoted in the
Complaint (two of which expressly reference the letters sent by counsel that are not quoted), but they are
integral to Kinsman?s claim that FSU was deliberately indifferent to her allegations because the letters show the
communications between the parties as FSU tried to investigate her claims and ?nd a way for her to return to
school. Moreover, the contents of these letters cannot be disputed, as Kinsman?s lawyers either wrote or
received each letter. Courts regularly consider letters attached to a motion to dismiss when 'a plaintiff has
quoted from the letter in the complaint but has failed to attach the letter. See, GFF Corp. v, Associated
Wholesale Grocers, Inc, 130 F.3d 1381, 1384?85 (10th Cir. 1997); Langer v. George. Washington Unlu, 498 F.
Supp. 2d 196, 202 n.1 (D.D.C. 2007); Natural Res. Council ofMalne v. Int?l Paper Co, 424 F. Supp; 2d 235,
247?48 (D. Me. 2006); Kalz v. Odin, Feldman P.C., 332 F. Supp. 2d 909, 913 n.3 (E.D. Va.
2004); Pilcliman v. Dep?t ofDef, 154 F. Supp. 2d 415, 419 n.2 (E.D.N.Y. 2001). Although the March 15 and
March 31 letters from counsel are not quoted, they are specifically referenced in the Complaint and in
the quoted letters from Kinsman?s counsel, so fairness demands thatthey be considered alongside the letters
from Kinsman?s counsel because these letters were part of the same dialogue.

l7

Case Document 35 Filed 03/09/15 Page 18 of 23 PagelD 186

clearly unreasonable. Kinsman left school less than twenty-four hours after her allegations
against Winston became public. Comp]. ii 113, DE. 1. After learning of the allegations,
FSU officials met on November 15 and November 25. Id; 110, 111'. During this time,
State Attorney Willie Meggs was investigating _the allegations, see id. 1] 104, and he
ultimately determined that no charges should be brought against 'Winston, id. 1} 1 14. During
this time, SU was aware of the situation and monitoring it. Id. 110, 111. Under similar
circumstances, a court has held that it was not ?objectively unreasonable? for a school to hold
off on its own investigation while a school'was monitoring a pending criminal investigation.
See Seats v. Kaskaskia Coll. Coll. Dist. N0. 501, No. 07-CV-843-JPG, 2008 WL
5235980, at *7 (SD. 111. Dec. 15, 2008). I I

Second, after the State Attorney concluded his investigation, FSU began its own
investigation in January 2014, right as the new semester was starting. See Compl. ii 118,
DE. 1. SU reviewed the materials from the Tallahassee Police Department. Id. FSU also
attempted to interview Winston, who declined to answer questions. Id.-1l 120. Notably, - I
Kinsman refused to give FSU a statement?Fa convenient omission from her Complaint, but a
point that is evident from the letters she cites in her Complaint. Id. 122?26. Based on
investigation, it determined that it could not bring charges against Winston atlthat
time?the exact same result that the Tallahassee Police and the State Attorney had reached.
FSU left open the possibility of revisiting that decision, however, should additional
information come to the school?s attention. See Ex. B. I

Third, in her Complaint, Kinsman speci?cally references (and even quotes) multiple

letters exchanged between Kinsman?s new Colorado-based lanyers and FSU. These letters

18

Case Document 35 Filed 03/09/15 Page 19 of 23 PagelD 18?

leave no doubt that FSU was far from ?clearly unreaSonable? in its actions related to holding I
a disciplinary hearing on Kinsman?s allegations against Winston.

The earliest letter cited in the Complaint is dated February 21, 2014. Comp]. 11 122,
DE. 1; see Ex. A. Two things from that letter stand out. First, Ki-nSman?s counsel
acknowledges in the letter tha ?over the winter break,? FSU inquired of Patricia Carroll
(Kinsman?s then-attorney) whether Kinsman wanted to pursue a student-disciplinary hearing. 
Ex. A. The letter explicitly acknowledges that Carroll demurred:

I understand from Ms. Carroll that you inquired sometime over the winter

holiday break as to whether Ms. Kinsman was interested in pursuing a 

disciplinary hearing regarding Mr. Jameis Winston?s conduct on

December 7, 2012. Ms. Carroll has indicated that she responded that your

inquiry was likely too late but that she would discuss with her client.
10?.

Second, the February 21 letter from Kinsman?s attorneys includes these remarkable
sentences:

Mr. Kerr and I have discussed with Ms. Carroll and Ms. Kinsman and it is

hard to envision any scenario where any result of a disciplinary action

could eliminate the hostile education environment and extreme third party

harassment suffered by Ms. Kinsman. In fact, if Mr. Winston were found

by a conduct board to have sexually assaulted Ms. Kinsman, and he were

ultimately suspended or eXpelled, Ms. Kinsman would likely be in greater

danger than if the conduct board ruled against her.
Id.

I This letter demonstrates that, as of February 21, 2014, Kinsman had not only declined

a student-disciplinary hearing, but had in fact communicated that holding such a hearing

would be both pointless and potentially harmful to Kinsman. Accordingly, Kinsman cannot

now complain that the timing of her hearing had anything to do with her alleged inability to

19

Case Document 35 Filed 03/09/15 Page 20 of 23 PageID 188 -

return to FSU. Indeed, the letter implicitly concedes that it was the ?national media
attention? and the resulting public outcry?not actions?that kept Kinsman from
returning to school. See Comp]. 108, 112, DE. 1.

Another letter cited in Kinsman?s Complaint~?a letter dated April 1, 2014?
evidences .Kinsman?s dramatic and unexplained about-face on the issue of a student-
disciplinary hearing. See Ex. E. That letter shows Kinsman?s attorney demanding a hearing
and indicating that she would cooperate??but only after FSU ?led charges against Winston.
Coupling the state of the record before FSU as alleged in Kinsman?s Complaint?including a
State Attorney?s decision not to charge Winston and Kinsman?s own earlier rejection of a
student-disciplinary hearing?and the demands of basic fairness and due process to a
potentially accused student, it could not have been ?clearly unreasonable? for FSU to wish to
interview Kinsman directly before deciding whether to further investigate Winston. Sec
Davis, 526 US. at 649 would be entirely reasonable for a school to refrain from a form
of disciplinary action that would expose it to constitutional or statutory claims?)

As for correspondence to Kinsman, the Complaint cites a letter from FSU to -
Kinsman?s attorneys dated March 31, 2014. That letter clearly expresses FSU willingness to
meet with Kinsman for the purpose of obtaining information to consider in connection with
the decision whether to initiate disciplinary proceedings. Speci?cally, the letter says:

In any event, the University acknowledges Ms. Kinsman?s offer to

supplement the record with additional information pertaining to her

allegations concerning Mr. Winston. Ms. Kinsman may provide that

information in any format she desires, including in writing or through a

phone or Internet conversation. An in-person meeting is usually the most

effective means of gathering information, and the University?s Title IX

personnel would welcome such a meeting with Ms. Kinsman. If Ms.
Kinsman is willing to meet in person with the University?s Title IX

20

Case DoCument 35 Filed 03/09/15 Page 21 of 23 PagelD 189

personnel, we will arrange for the meeting to occur at a time and place of
Ms. Kins'man?s choosing, including at a reasonable location outside of
Tallahassee. This accommodation should wholly alleviate any concerns-
for Ms. Kinsman?s safety.

Please let us know how you would like to proceed and we will coordinate-
with the appropriate departments to ensure that this information exchange
occurs as soon as possible and in an environment in which Ms. Kinsman
feels safe.

Ex. D.

Finally, the Complaint also indicates that FSU tried to have Kinsman give a statement
on May 20, 2014, when Kinsman was on campus for the Student Conduct Code hearings of
Chris Casher and Ronald Darby, but Kinsman?s delay in responding to the offer made
coordinating the interview that day impossible. Compl. ll 128, DE. 1.

Fourth, Kinsman ?nally gave an interview to FSU on August 6, 2014. Id. ll 129.
This was Kinsman?s ?rst statement to anyone at FSU outside of the Victim Advocate
Program since the night of the alleged assault (when Kinsman claimed not to know the
identity of her assailant).
FSU held an investigative hearing based on Kinsman?s allegations on December 2,
2014. Id. 135. The hearing of?cer (former Florida Supreme Court Justice Major Harding)
determined that the evidence was insuf?cient to warrant Student Conduct Code charges
against Winston?or in other words, that a preponderance of the evidence did not support a
?nding that Winston raped Kinsman. 1d. Thus, Justice Harding reached the same conclusion
as every prior investigation.

attempts to investigate and hold a hearing are far from deliberately indifferent.

Just like the victim advocatesa care of Kinsman before she left Tallahassee, conduct

21

Case Document 35 Filed 03/09/15 Page 22 of 23 PagelD 190

since the media reports of November 2013 cannot be described as ?an of?cial decision by

nOt to remedy? the-situation, Gebser, 524 US. at 290, or ?a conscious decision to

permit sex discrimination,? Murrel, 186 F.3d at 1246. Therefore, FSU was not deliberately

indifferent such that its conduct subject Kinsman to the further harassment of being excluded

from school.

9%

For the foregoing reasOns and authorities, Defendant respectfully submits the Court

should "dismiss the Complaint pursuant to Rule 12(b)(6) for failure to state a claim.

MCGUIREWOODS LLP

By.

/S/Scott'S. Cairns

Scott S. Cairns (FL Bar No. 0037729)
scairns@mcguirewoods.com

Carlos Mu?iz (FL Bar No. 0535001)

Melissa W. Nelson (FL Bar No. 0132853)
mnelson@mcguirewoods.com

50 N. Laura Street, Suite 3300
Jacksonville, Florida 32202

(904) 798-3200

(904) 798-3207 (fax)

and Trial Counsel for Defendant TheFZorida
State University Board of Trustees

22

Case Document 35 Filed 03/09/15 Page 23 of 23 PageID 191

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 9, 2015, I electronically ?led the foregoing with
the Clerk of the Court by using the system Which will send a notice of electronic
?ling to the following: -

David B. King, Esquire

Thomas A. Zehnder, Esquire

Taylor F. Ford, Esquire .

King, Blackwell, Zehnder WermUth, RA.
PO. Box 1631 .

Orlando, FL 32802-1631




 

Baine Kerr, Esquire

John "Clune, Esquire
Lauren E. Groth, Esquire
Hutchinson Black and Cook, LLC
921 Walnut Street, Suite 2
Boulder, CO 80302
kerr@hbcboulder.com
Obrien@hkcboulder.com
clune@hbcboulder.com
Patterson@hbcboulder.com
groth@hbcboulder.c0m

Attorneys for Plaz?ntI'?Erica Kinsman

Scott S. Cairns
Attorney 

64736015v3

23

Case Document 35-1 Filed 03l09/15 Page 1 of 9 

DEFENDANT THE FLORIDA STATE UNIVERSITY 
BOARD OF TRUSTEES MOTION TO DISMISS

EXHIBIT A I

Erica Kinsman v. The Florida State University Bbard of Trustees 
United States District Court for the Middle District of Florida
Case No.: -

Case Document 35-1 Filed Page 2 of 9 PagelD 193

HUtChinSOHBlaCkandekuc

- Attorneys at Law 101mm,,?
dune@hbcbouldcr.con1

February 21', 2014

Via E-mail and United States Mail
Ms. Carolyn Egan- 

Of?ce of the General Counsel 
Suite 211 Westcott Building

222 South Copeland Street
Tallahassee, Florida 32306

RE: Representation of Erica Kinsman and your inquiry
Dear Ms. Egan:

Our office has been retained by Ms. Kinsman to assist her with her legal rights under Title
IX of the Education Amendments as. Well as other matters pertaining to her rape at Florida State
University in 2012. Please direct all further communication regarding this matter to either myself 
or Mr. Baine Kerr of our ?rm. Ms. Patricia Carroll is also caunsel for Ms. Kinsman but to facilitate
communications, please use me as your primary point of contact.

. I understand from Ms. Carroll that you inquired someti?te over the winter holiday break as
to whether Ms. Kinsman was interested in pursuing a disciplinary hearing regarding Mr. Jameis
Winston?s conduct on December 2012. Ms. Carroll has indicated that she responded that your

. inquiry was likely too late but that she would discuss with her client. 

. As you are aware, since the time that Florida State University Police Department learned,
of this assault, ?fteen months have passed. When that report was originally made, Mr. Winston
was relatively unknown outside of his college'football 'world. Since that time, Mr. Winston?s
accomplishment in athletics has launched him into heightened celebrity status. This increase in
status was so signi?cant that when the news broke about Ms. Kinsman?s report to FSU Police, she
was the subject of repeated death threats, her sorority raceived bomb threats, and someone slashed
the tires of a car belonging to her sorority 'sister. Since that news, Mr. Winston?s celebrity has
grown to eVen greater proportions due to further athletic endeavors. While Ms. Kinsman remains

enrolled at FSU, these events have forced her to leave campus and her ?riends due to grave fears
for her personal safety. I - I 

Mr. Kerr and 1 have discussed the matter with Ms. Carroll and Ms. Kinsman and it is hard
to envision any scenario where any result of a disciplinary action could eliminate the hostile I
I education environment and extreme third party harassment suffered by Ms. Kinsman. In fact, if

921 Walnut Suite co 30302 I Tel (3'03) 411216514 I Fax (303) 442-6593 I roll Free (300) 303-6514


Case Document 35-1 Filed 03/09/15 Page 3 of 9 PagelD 194

Ms. Carolyn Egan
February 21, 2014.
Page 2 of 2 .

Mr. Winston were found by a conduct board to have sexually assaulted Ms. Kinsman and he was"
ultimately suspended or expelled, Ms. Kinsman would likely be in greater danger than if the
conduct board ruled against her. This is the harm caused and exacerbated by one year plus

delay in responding. If you think otherwise, that a disciplinary sanction of Mr. Winston would
somehow alleviate the hostile educational environment, it would be very important for you to
explain that to us. 

As you. are aware, the school?s obligation under Title IX is not necessarily to convene a
conduct board hearing, but to respond and effectively to sexual harasSment and assault
Ms. Kinsman remains willing to cooperate and is open to hearing the school?s thoughts as to what
response the school believes would address the harassment and allow her to re-enroll in classes at
Florida State. She cannot however, subject herself to any process that w0uld only decrease her
safety on campus. - - 

Additionally, as you are no doubt aware, two other students, Chris Casher and Ronald
Darby, have admitted to criminal conduct in committing voyeurism and video voyeurism. This
behavior constitutes both sexual harassment and-also criminal behavior which is prohibitedin your
school?s Code of Conduct. :Mr. Casher even went so far as to state that he Watched the behavior},
video recorded it, and then entered the room to attempt to have sex with Ms. Kinsman despite not
having her consent to do so. Ms. Kinsman expects that you will proceed against these students 
accordingly andyin a timely fashion. 
. II .

Their sworn confessions to this conduct are attached to this letter so I trust that you don?t
need Ms. Kinsman to put herself in further harm?s way for the school to address this harassment
and bring code of conduct charges against them. Perhaps Mr. Winston will corroborate their

account of voyeurism when you interview him as a part of your investigation that has been reported
in the media. Please keep us apprised of these proceedings and any charges that are brought by 
the school. 

We look forward to your response

 
  

      

. .I  ?7 '1

I "John Clune, 

Baine Kerr, Esq. I
Counsel for Ms. Kinsman

JCC/tjp

Cc: Patricia A. Carroll (Via email)

STATE OF 

COUNTY OF LEON

AFFIDAVITOF RONHLD DARBY

l, RONALD hereby having been duly sworn and affirmed hereby state the tolinw'i'ng at. true and correct:

1.
2.

1&1 7 . 
In?l?.   3 .

My name is Ronald Darby, lam over 13 Vears'in age. am a residentof [eon Connty.

- On December 6, ?012,l\went with Chris ?asher and Jame-is Winston to Potbeily?a, We arrived around 11:03

pm. While there, [watched Jamels talking with Whitetemaie that had blond: hair. It appeared that the
Famaie was pursuing iamels. In an effort to continue to hang outwith Jantels she was trying to get her
friend to go home with Chris Casher. as Jameir. and this giri talked. she did out want him to leave.

Jameis Winston, Chris Casher and'l declded to leave Pdthelly's and the same blonde iertlale tollewad hs out

of the duh. This female did not app?ar intoxicated. She was abte to wall: out at the club, have a

turmersatinn-with hit of us and Use her cell phone to text herirlendtojoin us. She mien got In the cab with

US.

When we returned tn'our apartment building. she lollowed Jar-nets intohis apartment and into his bedroom.

Jameis and the girl went into his bedroom.' The tights were on and the door was Cracked open. The door did
'not stock and mo not close all the way betausethe loci: was broken. .

As the dunr'waspartially'open. Chris looked through the opening and we could see her giving lame-is orai
set. Chris continued to watch Jameis and the gilt through the cracked door. He was playing jukes on Jamel;
and trying to embarrass Jamel; Chris wailted in Jameis? room and the girl told to get out. She then got
up turned elf the light and shut the bedroom door. Chris and Icould hear her and Jamais having sex. At no
time did the girl ever indicate that she was not a willing partidiiaant. in fact. she wanted more privacy by
closing the door and turning off the lights.

After approximately 20 minutes. I left the apartment a nd went upstairs to my apartment. A: was. 
to my apartment i saw Jameis leave with the same girl on his scooter. Approaintntelir litre minutes later,
Jameis returned on scooter. I I

On November-.13, 2.013, was interviewed by Monica Jordan. Asa result of this intertiirrw the prepared this
statement based on what I told her. This in true and accurate statement. Ms: Jordan has presented the
facts as I provided them to her. This statement ?ts voluntary; iunderstaod that Ms. Jordan is on
behaif of munsci for Jameis Winston. I

. r?

lit

reu ltthiTFl?N'l'yt?flTH NAUGHT
Eff-,1

.. up- 

hhnald Darby

Sworn to and subscribed before me is day of November 2013. Affiant provided the inllawing
Identi?cation; 034 .

 

Wm

Notary Publie 

 

 

 

 

 

Case Document 35-1 Filed 03/09/15 Page 5 of 9 PagelD 196

STATE OF 

coumv or Lion

LCHHESIOPHER CASHER, herebvltavlng been dulv sworn and aiilrmed hereby state the, following as true 
anti conecl:


2.

it was broken. The lights word on.

illicit? 

AFFIDAVIT 0F CHRISTOPHER USHER 

My nar'ne is Cashen lam over in age. lama resident oi Leon Gaunt-r-

On December Er, 201.2, i went with Ronald Darby and Jameis Winston to Potbeilv's. We arrived around
11:00 that. lmot a white lat-nail: with blonde hair. She. came up to the and-asked it [played football. When-l
responded that i did play ioothall she seemed more interested In me aml gave me her telephone number. i
went off and staried mingling with other people in the dub. -

t. When Jameis Winston, Ronald Barby and i derided to leave Pothellv's and the sarne blonde female that

gave me her telephone number followed as out of the club. This some female wanted to leave with us in
the cab and virtually invited herseli. She was not intoxicated. She was able to have a conversation with us.
She was not slurring or stumbling. Shl.? was using her cell phone-to try and invite her irlertd to join us.
When WE arrived at Legacy Suites, silegot out of the cab and followed Jameis to his apartment and Into his
bedroom. 

Jameis and the girl went into his bedroom. The door was pulled shut but could not shot all the way 
Since the door was partially open. i looked through the Opening and we could see her- giving, Sameis oral sex.
They had only been in the room-a few minutes before I witnessed her giving him oral sex. lamels was lacing
the door with his hands on his hips while she was In front oi him on-iter knees. iwltnessed them hoth'taice
each other's clothes oil and letr on the bed. Jameis and the blonde fornele began having intercourse. ?ts-a
joke. I the room to emharrass Jameis. The giri yelled at me. I"gel out.? She got up off [ho had
and turned oil the light and tried to close the door. i could hear them continuing to have sent. 'She never
in?ltrated that she was not a willing participant. From what I saw she wasa more thdr?t ??lling partitlttant
After approximately 20 minute; 1 want Into my bedroom . Mould hear Jamels and the girl leaving. The?;
were talking to each other in E?lrlendlv manner, -

On November 13, 2013. was Interviewed hv Monica Jordan. As it result ol this'interview me prepared this
statentenl hast-d on what i told her. This is a true and accurate statement. Ms- Jordan has presented the
lat-ts as i provided them to her. This statement is voluntary. lunderslend that Ms. Jordan is working on;
hehall of counsel for lame-is Winstont - - 

- .t-r I .
turtt?H'Elt roaring stat-rem Nnuorir

I 



t- _r 
Chris Caslter

Sworn to and subscribed before me this 13'h day of November 2013. Ail?ranl provided the lollowlng
identi?cation:  at r) 

 

Notarv Public 

 

 

 

 

 

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 . . . . .. . . - . . . . . . .. . 

CeSe Document 35?1 Filed 03/09/15 Page 6 of 9 

 

 

 

 

 

 

 

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This case was leii in suspended status because pr cause-mum not he eslabiisiied given Ihe
con?ictingstaiemenie beiween whai lhe viciimioid her iriends and whai was reported to police. in
addilion. the vici'rm was unwilling to pursue criminal charges ai ihai lime. Based en-ilrese iacrs and the
fact-ii did ndi r11ch sirriulory reqr?remenis in: pronecuioriai review {domestic relaied incidenIS). the case
was 41:31 in the Of?ce oi rhe State Niamey. My Sergeam and Lieulenani were both aware
Land in agreement wiih ih'rs decision in February 2013. 

met??bransz
A

On November 12.. 20-13. we were made aware Ihal a media source was incurring abnui'lhe invesrigarian
and was requesl?rrig documents pertaining to Ihe name. On November-12. ears 1 was direcred re 
ihe Of?ce DI lire Siaie Niamey pi ihe case her the sole purpose at making rhern aware in case they
were in receive reuuesrs for informaiion. After discussing ihe case at iengihE iwas asked by ASA
Ceppieman to send her lire repons reiairng to the case,

On 13] 2073. ASA Cappleman provided ihr: Taiiahassee Police Depemneni scanned copies 
or "sworn siaiemenrsf provided to 1h8il' by .iarrsen? . 

The starernerrls were Iyped documenisihai each had eight numbered paragraphs, sur or w?ich
address the night's cuenrs- The siaiernenis are censrisrenr in their accounr oi the nighi?s events. in
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Case Document 35-1 Filed 03/09/15 Page 7 of9 PageID 198

Tallahassee Police Dapartment Date tri?e-port 16520131199

 

bar, a bionde began speaking tvith Winston,

2. As Winston Casher and Darby lelt. the Ibtonde female got into the cat; with them (according
to Casher, she invited horse-ti}. The statements indicated the iemale was not intoxicated and
was able locarry on a'conversalinn. - -

3. When they arrived at their-apartment, the female followed Winston into his bedroom. 
at The door Was pulled closed. but was pant ally open hepaLtSe it was broken,

. 
5. Casher and Darby watched as the'lemale performed oral-sex on Winston through Winston's broken i
bedroom door. Tlrey then saw the iemaie and Winston Engage in oral sex. As a joke Casher went" into - 
the room. In response the tremolo told him to get out. She then got up and closed the door and turned
all the ?ghts. according to the statements. there were no indications that the female was not a willing
participant. . .

6. Approximately minutes later the lemaie tell with Winston on his. scooter.

ASA Cappieman? asked that we attempt to rte?interview the victim and her friends. She also asked that
we interview Cast-let and Darby as well. it should be noted that Casher was not initiain interviewed due
to the fact the victim advised she was with him and did not believe he was present when the
incident took place. Additionally._Casher did not meet the description the victim provided tor the srrbiect
who she said entered the room. . . - 

On November 14. 2013, Inv. Osborn and [rt-rent to the Moore Athietic Ollice in an attempt to locate and
interview Darby and Casher. As is common practice. contact was made with to advise them ere 
were going tone on campus to? conduct lotion-up regarding an investigation. 

Upon our arrival at the Moore Athletic Center. we were met by Monk Bonasorte. According to
Bonasone, the Florida State University Police Department-had been requested to direct ail law
enlorcement olticers to his oilice it they were seeking to cantaol {portrait players regarding this
investigation. Bonasone then stated he believed Janeen had already arranged legal representation lor
Castrer and Darby.

While we were present. Bonasorte made phone contact with who he sard was Attorney Jansen.
Following the phone call, Bonasorte intormed us that Darby had obtained an attorney, but that Castter
had not. Bonasone had stall summon Casher to the Moore Athletic Center. Boner sorte then stated he
would be Cashier's representative. ?Bonasorte is. not an alterney so tare explained that. in order to protect
the integrity ol the case. he would not be allowed to be present. We then explained it ?asher wished to
have legal representation. he could request an attorney and the interview would be re~scltedtried tor a
later date.

When Casher arrived. I explained to him that he was just a witness in the case1 but was still allowed to 
have an attorney it he wished. i also explained that we could-schedule the interview at a laterdare'ro 

arrow him to consoit an attorney it he wished. Casher stated he dirt not want an attorney and consented
to an interview. - . . 

 

 

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Secondary Ottrcer Harrie . Batu-11mlverman Officer Department Dole: Time a
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.9: .

joist.

l.

Case Document 35-1 Filed 03/09/15 Page 8 of 9 PageID 199

Tallahassee Police Department wort-29231129

incident Ftepod cm {204333353

 

Casher stated he. Derby and Winston wen?o the night in quesdon. He stalled he met a
blonde female there but cannot remember her name? After getting her phone number he went off the 
talk to some other people. Later in the Evening he saw the same ten-rate retiring to Winston. I -

terttale repeatedly tried to call her iriend so that she could hang out with Casher: however. apparently
. did not speak to that person. 

Once back at their'ap'artmer?tt (Caster and Winston were roommates). the lemale and Winston went
into Winston's bedroom. After about 10 minutes ?asher and Derby peeked in the room and saw the

- [emote performing oral sex on Winston- Gashet stated the door to Winston's room was broken and did 
not latch closed. A low minutes later he watched as the tomato and Winston removed their own
clothing and climbed on the bed and began to engage in sexual activity. Cashier slated he went into
the room to see it the lemate would engage in sexual activity with him as well (as has happened with
other lemales he and Women have brought tract-r to their apartment}; hawet'er. the [emote saw him and 
told him to get out. A little while later, Casher stated he tried to video tape Winston and the female;
however. when the female sat-r she again told him to leave. The tomato then torned off the light
and went with Winstort into the bathroom." . 

As he, ?arby and Winston were leaving. the temaie got Into the cat: with them. Cashier Stated the I - 
i

Casher stated a little while later he heard Winston and the ten-late leave and get on Winston's scooter.

statements dt?rring the interview-were consistent with the statement ptovidod to the poitce by
Attomey Jansen. The only disorepat?tcy was when ?asher stated he went into the'room to surprise
Winston, When est-ted discrepancy. Casher stated he did indeed go into the room to try to
have sex with her as well. . 

Bonasone stated he would contact Darby to obtain the name of his Attomey and then let us know so
that we codid {GlI'DW-tiprwith an . - - .

On November to. 2013, Winston consented to providth a DNA sample via a Buccai (Cheek. cett} Swab.

Before making Winston available to provide the swab. Jansen again stated, he was not going to atlow
Winston to be intervieived by potioe. . 
in a report dated November 29. 2013, the Slocum; 'b'rbvide'd their - . .252;

?corr'tpati'sdn ot Winston's Buccat-swab with the DNA in their report dated hugusz 2013.
According to the report, the partial Ioreign DNA pro?le-from the visitor?s underwear matched the DNA
prottle oi Winstont Winston was excluded as the source at the DNA profile from the vintim?s shorts and
could not be either included or excluded as a contributor to the toreign DNA prolite reeovered trom the
victim's lace [based on the limited nature. at the pro?le obtained from the victim}; lace),

I had to leave town tOr severe! days on 'a pro-scheduled, work related trip to another part oi the state;
theretore,?tnv. Osborn interviewed Derby and witness Jenna Weisberg. Weisberg was the individual
who ?rst contacted B. These intewiews took place on November 1512013. See lrw. Osborn?s
supplement tor details. Sgt. Heidi-tin rte-interviewed witness Bria Henry in myabsence. See her
supplement tor details, . . .

 

On NDVemoer 1'3; 2nt3, tnv. Osborn he attempted to Contact Witness Monique Pie-ester.

 

 

 

 

 

 

 

 

. 
Heparttno Of?cer Department - Report States: a
Int-costume: M43010 'fr-tt: 1 Potent: {Fermented Fipprr-ke? .-
Secandirr out?: Home 1 - Due-Tim a

i
h? I
Varnwa oil-car . Department Dalef?l'lme a
Sergeant ANNE Jill-1530?; Ire girl-t-ol?irt Fi?-Iii: I'?eimtntunl EFL-Q i?JiJiS Haiti 
. 
we
at
or:

Jold

Case Document 35?1 Filed 03/09/15 Page 9 0f 9 PagelD 200

Police Department Ontuot?m? tar-a. ma

i 

lncidem Reno? case-? I i

i

 

Kosster? however, told trw. Osborn Elie woJld need to call him back because she was in the ?rocess ot
speaking with investigators with the Dt?ce oi the State Attorney- The content oi that interview has not
been shared wilhthis agency. . 

tn additiortt was made aware that ASA Caoplernan scheduled an appointment to sneak thh- the
victim?s attorney later that motn'lngl. Imr. Graham and I requested to Delores-elm at that meeting but our
request was denied. The victim was later'interviewed by members ol the (Juice ol the State Attorney.
The speci?c details ot'that Interview have not been shared with"- this agency.

At the request oi the Office at the State Attorney, the blood angler-the samples taken train the victim
were sent to Dr. Goldberg, with the University of Fierida tot additional analysis. Dr. Goldberg con?rmed
the findings at the FDLE tab that there were no drugs tourtd.

Witnesses Derby and Marcus Jordan (the person with whom the victim shared drinks earlier in the

night). voluntarily submitted Buccal swabs to be compared with the unknot'm toleigrt DNA pro?le on the

victim's shorts, in a report dated November 22? both men were excluded as possible contributors
to that lOreign DNA profile. . 

Witness Cashier. was contested to see it he would voiurttartiy provide a buccat swab to compare against
the foreign DNA prolite Iound on the victim's shorts, Dasha: initially stated he would meet to provide the
sen-tote. trtu. Osoorn- was later contacted by Casher's Attorney. Edam Ettis- Etlis advised he wanted

- .tii-ne to review the tacts ol the case belore deciding whether he would allow Gasher to provide a

sample; The Oltice ol the State Attorney served a search warrant to obtain a DNA sample Cast-tart
"0n Decet'nber 5, 2013. i received the FDLE report regarding the comparison ot Cashiers DNA sample-
io the other items previously submitted in this case. Casttet?s sample was excluded as the source oi
the foreign DNA located on the victim's shorts. tinderttreatl and lace. 

The previously unidenti?ed sampte leund entire shorts was determined to baiortg to a knewrt
acquaintance ol the victim. Jamal Roberts. Due to concerns voiced by the victim's attorney that the
blood submitted which showed no drugs did not actually belong to the victim.?tite Slate Attorney?s Office
requested that the blood sample be rte-submitted tor blood typing, The EDLE reported obtained on,
December-55. 2013. cottlirmed the blood initially submitted did. in tact. baldng to the victim, -
End at Mahatma: 

 

 

 

 

 

 

 

 

 

 

 

 

- r:
Reporting D?lcer - Dept: P?lmnl Report Status: a
Atr?tzist CI tart: Emmi-3: reiterate? Pure-m (wearer-cc: .
Secondary' O?icnf Home - - Dote'hme 
. I 
. I 
Officer Department Date. 9
Sergeant ANNE. T?ahattartar Pol-ct- Emir-milder? [Earth-mild lite-?33; 




at .

aha! 4 ..

Case Document 35-2- Filed 03/09/15 Page 1 of 5 PagelD 201

DEFENDANT THE FLORIDA STATE UNIVERSITY
BOARD OF TRUSTEES MOTION TO DISMISS

- EXHIBIT 

Erica Kinsman v. The Florida State Universiw Boat-d of ?mtees
United States District Court for the Middle District of Florida
Case No.: 

Case Document 35?2 Filed 03/09/15 P.age.20f5PagelD 202 -

MeGuireWoods LLP 

Bank qul'nerica Tower

50 North Laura Street

Suite 3300
jacksonvilla, FL 32202-3661 
Phone: 904.798.3200

Fax: 904.798.3207
ww.mcguirewoods.com

I. - - I - mnelson?mcguirewoodscom

Fax: 904.360.6332

I March 15,2014
VIA s-man and Us. Mail

Blaine P. Kerr, Es?quire

John C. Clune, Esquire

Hutchinson Black and Cook LLC 
921 Walnut Street 
Suite 200 

Boulder, CO 80302

CONFIDENTIAL-I I I
RE: Erica Kinsman

Dear Messrs. Kerr and Clune:

Florida State University has retained McGuireWoods LLP to represent its interests 1
regarding any claims asserted by your client, Erica Kinsman. We ask that you address all
future communications from you and your co-counsel regarding Ms. Kinsman to our
attention. Ms. Kinsman remains welcome persdnally to avail herself of any University -
resources or services?She desires. As has always been the case, the University wants to
ensure that Ms. Kinsman has the full- bene?t of the UniVersity?s programs, resources and
activities, and 'we stand ready to work with'you in that regard. - 

The University?s general counsel has forwarded to us your letters of February 21,
2014 regarding Ms. Kinsman. It is unclear from those letters whether you are requesting
any particular action regarding Ms. Kinsman or simply indicating that a claim will be
asserted in the future. . - - 

Weare unaware of any basis you might have for suggesting that'the University has
legal liability in connection with Ms. Kinsman. Contrary to the insinuations of your letter,
I the University did not delay in acting on this matter. ?lndeed, 'since- Ms. Kinsman first
reported an off-campus alleged sexual assault to the Florida State University Police
Department on December 7, 2012, the University. has done everything possible under the
circumstances to address her needs; to ensure that she has full access to the UniVersity?s
programs, resources, and activities,- and to comply with its obligations under applicable

- laws, In particular, in the immediate aftermath of the alleged assault, the University .
engaged a victim advocate to assist Ms. Kinsman. Fromthat moment on, the

.. Atlanta [nustln lBaltlmore Brussels {that-lone Charlottesv?le Chicago Houston London
Los Angeles New York Norfolk Pittsburgh LRaIeigh Richmond ]Tysons Corner Washington, D.C. 

Case Document 35-2. Filed 03/09/15 I Page 3 of 5 PagelD 203 -

. Con?dential
2014.
Page 2

1Victim Advocate Program (on behalf of the University) has provided Ms. Kinsman

Extensive, ongoing support, including but not limited to arranging multiple and signi?cant
academic and social accommodations for her as Well as advising her on steps she might
take to avail hers elf of the remedies available to her I

As you well know, thronghout the period following the alleged assault, the
University has labored under numerous constraints in its effort to help Ms. Kinsman. First,
- although fully advised that the University sto od ready to investigate and take action on her
allegations, Ms. Kinsman made an informed decision not to avail herself of the University?s
formal sexual misconduct . complaint process. instead she chose to confine her
communications to the Victim Advocate Program. Second, and relatedly, Ms. Kinsman
chose to eventually reveal the identity of her alleged assailant only to the victim advocate,
knowing that the victim advocate was obligated to keep that information con?dential from
others at the university absent a speci?c waiver of con?dentiality. Finally, the University
received from your co-counsel, Patricia Carroll, an unequivocal directive that no one from 
the Universityhave contact with Ms. Kinsman. 

Ultimately, after nearly an entire year of ongoing con?dential communication
between Ms. Kinsman and the Victim Advocate Program, it was the media'thrat disclosed
the alleged assailant's identity and, in the process, broadly publicized 
allegations. Inlresponse, the University took further steps to protect Ms. Kinsman's identity-
and her well-being. 'And, although it was still handicapped by the absence of direct

. participation by Ms. Kinsman, the University took steps to investigate the alleged assault.

Becahse you have indicated that Ms. Kinsman now seeks noti?cation of the results

of that process, we have enclosed here the University?s February 10th lettersummarizing
the Current status, of the University?s investigation. As the enclosed document indicates, .
the Title IX investigator has left open the possibility of receiving anyadditional information I

- that anyone may wish to provide her. To be clear, the University could not provide this
information to your-client previously because of Ms. Carroll's clear instruction that no one
from the University have contact with Ms. Kinsman, Please be advised that you may not
disclose to any other person thecon?dential information in the encloSed document, as it
constitutes student record information protected under the Family Educaticin Rights and
Privacy Act. - 

Finally, as to students Ronald Darby and Christopher Casher, the Universityis

- reviewing the allegations contained in your February let letter and would like to better

understand your client's position regarding her potentialparticipation in an investigation

and any related proteedings?. Speci?cally, the University would like to explore?either

through you or with Ms. Kinsman directly?both Ms. Kinsman's willingness to provide

additional information or otherwise participate in the complaint resolutitni process, and
potential steps the University can take to address Ms..Kinsman's related concerns.

 - =Case Document 35-2 Fil?ed 03/09/15 Page 4 of 5 PageID 204

. - - . Con?dential 
March 15, 2014 
Page 3

Since Ms. Kinsman?s arrival in 2012, Florida State has wanted Ms. Kinsman to
succeed and feel welcome on campus, as it does with all students. The University?s actions
in this matter have con?rmed Florida State?s commitment toiMs. Kinsman's health, safety,
welfareland academic'suc-cess. Consistent with its demonstrated care for Ms. Kinsman to

date, the University'remains willing to support Ms. Kinsman in her pursuit of a degree from -
Florida State. 

We look forWard to hearing from you;-
Sincerely,
Melissa W. Nelson I
Scott S. Cairns 

Enclosure

Carolyn Egan, General Counsel, Florida State University [enclosure [via E-inail]

55029892v1

Case Document 35?2 Filed 03/09/15 Page 5 Of 5 PagelD,205

DEFENDANT THE FLORIDA STATE UNIVERSITY
BOARD OF TRUSTEES MOTION TO DISMISS

ENCLOSURE OMITTED PURSUANT TO THE
FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT
20 12323

Erica Kinsman v. The Florida State University Board of Trustees
United States District Court, Middle District of Florida
case 

Case Document 35-3 Filed 03/09/15 Page 1 of 3' PagelD 206

DEFENDANT THE FLORIDA STATE UNIVERSITY
BOARD OF TRUSTEES MOTION TO DISMISS

EXHIBIT 

rica Kinsman'v. The Florida State University Board of Trustees
United States District Court for the Middle District of Florida
Case No.: 

Case Document 35?3 Filed 03/09/15 Page.2 of 3 PagelD 207

1  (Blackde

Atta-rr'nseys at Law

   

John  
ckm?l??b?bou'l?empm

March ?25, 3201.4
AND.- us MAIL

Melisaa Nelson;
McGuire: Weeds

-OfAme?ca?Tower-

50 North Lama 
Jacksonville, FL 32202-366
?mel'son?ltneguifeWODIiSstim

IF?ez Erma Florida.-  
DieaIMs. 

 You for mm- 161161701? Match 1-53.; 2""0 314' and; your inquig into  
willingness. to" ;partiqipate' in FSU  marten?  this. request 
o?omes; ?fteen. men-tbs 'a?er FSU learned of her assault. she; tremaih's  ?to: provide
Mann-axiom   investigation if? suf?cient: pwtecticms for her: safety am.= in place and" ithe
pres-egg Title: IX. - - - -- 
 stated incur. hatter an??yMs. Kinsman  unable to attend-classes: or
othwvi'sc be on or near campus. to threats- against her It. wouid 
aspeciiaily maso?able {to zexpeg't lief ta: appearsiniperson for i?tcrviews bra. cede; of
Conduct hearing:  light qf-these dangers; Title. IX, as ybu' knew; requires-the Unimsity to.-
like     sexuai harassment 0r retaliation. See Dear
Cio'll-eague . -

Aithough wereques??ed; in our Z-l-st- about the University
preposi?d ta: pretest   1191511011 inferm'alion-  been forthcoming.  1:anE
worse came}:  even b?ie?y tn the. Tallahassee arse-much. Lesa to her classbs and gesi?encc,
- so Eng-as acxual assamt, men ?iendsi 'teamnatcsi  ?erce. Suppeims-
in  area'andinmes?ictea.

II-t-is: incumbent. 01:1- thcv-Universi?iy t9 hearings  Ways
saf?guard. M's.'.Kit18'maIL   be accomplished wi?mut. her coming to Tallahassee
hUWeven For example, meetings a?dhe??'ng. can be held in Ot?er location's or-wlephbnically, or-
by. Smear {Bangle-F. - 

921 Walnut Suite 442?65931?rou Free-1380f0j3'03465'14
=Ww.hbcboulder,com . .



Case Document 35-3' Filed 03/09/15 Page 3 of 3 PagelD 208

Melissa:  N'glison
 25,, 2.014-
  ?0?f?2 

It. is appaxent, from your-1mg: ?ha?t m-  'intq that-'5 .mpaahas taken place; 
 meeting;   ii'nsmn and  on.  $2.33: no:
rio?ce rm or similar? mac??g; with:  ?at wily. fail?d  rise. to the level nf 
inv?g?'ga?bn, See Dearacwleague camel-5x to: -
in. your iletteg  Winston Gould haw:  been i?ienfi?e? Within minute? of

notier 0f "the: assauit the. Uhiversiiy on? December? 73,2012; and. his. identity was. many cage
Imam =ta?ia-U?ivmsity  shot-3t: .urder thereafter; Also comm? assertion? 
 d?id? .th make? ?an. decision not to. Mai-I. =l'mz'r?n?f ofi?thev Uhi-vcrsifjr's femal
sexgal gmigaopnduct  groom?s.? lhde?'cf, whe? asked about participating: in? a f?n'nai'
magma-call)! agreed; t9: cemuni'oatefwith Kinsman
 Cher; :couns?; in no my such   _?haudi9apped" the.
i'nves?ga?bm - 

Finally; your *1.etter' sa?iked --a?ibout M?s.  participatiori hi ihvestiga?o? and
.mlateqi prQGEQd-ingf regardihg Qashsr and  is; willing to; pm?da
infamatio.n. under the. a'sainer- mailed.  .531: fanth' above- fsa-I-   Wes??ga?ona and
hearing Second: ofthese?. gen?amanhasf  admitted-by them. The:
is already replete  more. than  infomIatip-n far swam Guide of Gentilth
sanctions--. . - I 

.   are aware;  oBl-i'gatians: under  Eiib?lqng?tq s?hodl and are not a;

bard-emu bemlaqsd- an amp; Mng-insmm pro?db-  Monmtimzas: nce?cd -
?at.  s?fe and Title IX  32011601  Wait; as. she- has far
?fteen months-,for-ihe: school: to act. compliance  ?ieir'. . -

us as he: counsgl,  the investigation and
disciplinary prioc??dings pm grew . .

  
Raine.
John Sauna

  
   
 

ICC/tip

Cc: fa'hi?i'a email

 

Case Document 35-4 Filed 03/09/15 Page 1 of3 PageID 209

DEFENDANTTHE FLORIDA STATE UNIVERSITY
BOARD OF TRUSTEES MOTION TO DISMISS

EXHIBIT 

Erica Kinsman v. The Florida State University Board of Trustees
United States District Court for the Middle District of Florida
- Case No.: 

 . . . - 

Case Document 35-4 Filed 03/09/15 Page 2 of 3. PagelD 210

    
   
    


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               . . . I

             

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Case Documents 35-4 Filed 03/09/15 Page 3 of 3 PageID 211

   

 


 

Enclosed: here-in- ii-s= Dean- af'Studeuts; 

 hit Hem-1h ing;;-taz Mes?bsf; :?a?her'iahd; are; e:  enjt
    -       
     

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5303 9W1:

Case Document 35?5 Filed 03/09/15. Page 1- 0f 2 PagelD 212

DEFENDANT THE FLORIDA STATE UNIVERSITY
BOARD OF TRUSTEES MOTION TO DISMISS-

. EXHIBIT 

Erica Kinsman v. The Florida State University Baard of Trustees
United States DistrictCourt for the Middle District of Florida
cage 0.: 6:15-cv-16-Orl-31KRS' 

Case Document 35-5 Filed 03/09/15 Page 2 of 2 PageID 213

 

?HutchinsonBlackandCookm 
I Attorneys at Law I

. . John C. Clone



April l, 2014
VIA EMAIL AM) US MAIL
Melissa w. Nelson
McGuire Woods
Bank of America Tower

50 North Laura St., Suite 3300
Jacksonville, FL 322 02-3 661

mnelson@rngguirewoods.mm I
Re: Erica Kinsman! Florida State UniVersity

Dear Melissa: I

- Thank you. for your letter dated March 31, 20l4. Please keep us posted on the progression ofthe
disciplinary matters against Messrs. Casher and Darby. Although the credibility of their delayed input on .
"consent" is highly suspicious, I'm sure you would agree that this type of behavior furthers a sexually 

hostile environment at Florida State and must be treated seriously by the University.

What is conspicuoust missing though is disciplinary charges against Mr. Winston. It is now
?fteen months since Ms. Kinsman provided a report to Florida State University Felice Department about
being raped. The identity of the offender is known to FSU and the school is aWare that the accused
student is still under the control of and enrolled at Florida State University. Furthennore, my client has
repeatedly expressed her willingness to emperate with the University. .

Ms. Kinsman has provided detailed accounts of her assault to Florida State University Police
Department, Tallahassee Police Department, and the State?s Attomey?s Of?ce. She has also submitted to
a sexual assaultexamination at Tallahassee Memorial Hospital. All of those records are readily available
online and are no deubt already in your possession.? You hate a letter to us that
indicated that, by contrast, the Offender is re?isingto cooperate with FSU's investigation.

If charges against Mr. Winston are forthcoming, please advise. Ifthey are not, perhaps you can
explain why that is. -

     
 

Baine P. Kerr
John Glune

JCCr?tjp
Ce: Patricia Carroll

921 Walnut St, Suite 200. Boulder, CO 30302 i'Ibl (303) 442-6514 -l Fax (303) 4426593 [Toll Free (300)303-6514
- -