DOCUMENT 85

ELECTRONICALLY FILED
2/20/2018 4:56 PM
03-CV-2018-900017.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
TIFFANY B. MCCORD, CLERK
IN THE CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA

LEIGH CORFMAN,

Plaintiff,

vs.
CIVIL ACTION NO. CV-2018-900017.00
ROY S. MOORE, and
JUDGE ROY MOORE FOR US SENATE,

Defendants.

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR CHANGE OF VENUE

“'The plaintiff’s choice of venue is generally given not just a little deference, but great

deference.” Ex parte Eng’g Design Grp., LLC, 200 So. 3d 634, 644 (Ala. 2016) (Moore, C.J.,

dissenting from result) (emphasis in original). To defeat that “great deference,” Defendants bear

the burden of showing that “transfer is justified, based on the convenience of the parties and

witnesses or based on the interest of justice.” Ex parte Elliott, No. 1160941, -- So. 3d --, 2017

WL 6546313, at *2 (Ala. Dec. 22, 2017); see also Ex parte Perfection Siding, Inc., 882 So. 2d

307, 312 (Ala. 2003) (“burden of proof in seeking a transfer under this doctrine rests squarely on

the shoulders of the defendant”) (citing Ex parte New England Mut. Life Ins. Co., 663 So. 2d

952, 956 (Ala. 1995)).1

1
Defendants do not challenge the propriety of venue in Montgomery County. To the contrary,
the doctrine of forum non conveniens (upon which Defendants base their motion) is predicated
upon the propriety of the plaintiff’s chosen venue. See Ala. Code § 6-3-21.1(a) (“With respect to
civil actions filed in an appropriate venue . . .”) (emphasis added).

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Defendants Roy Moore and Judge Roy Moore for US Senate (the “Moore Campaign

Committee”) have not met and cannot meet their burden of showing that the interests of justice

require a transfer of this case from the same Court in which they filed a lawsuit of their own less

than two months ago. See Roy S. Moore et al. v. John H. Merrill et al., 03-CV-2017-902015.00

(Cir. Ct. of Montgomery Cty., Ala., filed Dec. 27, 2017) (the “Election Fraud Lawsuit”).2

As an initial matter, Defendants tacitly concede, as they must, that Montgomery County

is more convenient for the parties and witnesses. Of the nine witnesses identified in the

Complaint, two live out of state and four live in Montgomery County or closer to Montgomery

County than Etowah County. Of the three remaining witnesses in Alabama, only Mr. Moore

prefers Etowah County; Plaintiff Leigh Corfman’s mother lives in Guntersville, but is willing to

testify in Montgomery, and Ms. Corfman filed suit in Montgomery County—a choice of forum

that is to be accorded deference. See Ex. A, Neil K. Roman Affidavit ¶ 6.

The interests of justice also support venue in Montgomery County because Montgomery

County has a strong connection to this lawsuit. At least two of the defamatory statements that

form the basis of the Complaint were made in Montgomery County; none were made in Etowah

County. Ex parte Windom, 840 So. 2d 885, 889 (Ala. 2002) (“[A]n individual who makes an

allegedly defamatory statement should be sued where the defamatory remark was made.”)

(quoting Ex parte Arrington, 599 So. 2d 24, 26 (Ala. 1992)).

In these circumstances, Defendants’ preference for Mr. Moore’s home court cannot

satisfy their burden of disrupting the plaintiff’s choice of forum.

2
The complaint in the Election Fraud Lawsuit is attached to the Complaint in this action as
Exhibit 11.

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STATEMENT OF FACTS

This is a defamation action. Ms. Corfman alleges that Defendants repeatedly and

publicly accused her of lying and having improper motivations in responding to newspaper

reporters’ questions about Mr. Moore’s sexual abuse of her in 1979, when he was a 32-year-old

assistant district attorney and she was a 14-year-old high school freshman. Compl. ¶¶ 3-6.

Specifically, in the fall of 2017, near the end of Mr. Moore’s campaign for the United States

Senate, Ms. Corfman was approached by The Washington Post and truthfully told the reporters

about her experience with Mr. Moore. Id. ¶ 10. On November 9, 2017, The Post published an

article that included her account. Id. at ¶¶ 11-12.

From that moment forward, Defendants defamed Ms. Corfman no fewer than 14 times.

See id. ¶¶ 14, 45-93. The defamatory statements were made from November 10 to December 27,

2017 in Montgomery County and other counties in Alabama (but not in Etowah County). See id.

Defendants claimed, among other assertions, that Ms. Corfman’s account is “completely false,”

“malicious,” and “politically motivated,” that it reflects the “immorality of our time,” and that

“there is not one ounce of truth in her accusations.” Id. at ¶ 16.

The last defamatory act occurred on December 27, 2017 in Montgomery County.

Mr. Moore and the Moore Campaign Committee—the defendants in this defamation suit—filed

the separate Election Fraud Lawsuit against the Alabama Secretary of State and the Jefferson

County Probate Judge in Montgomery County, seeking to enjoin certification of Doug Jones’s

election to the Senate on the basis of alleged “systematic election fraud.” Id. ¶ 67; see also id.,

Ex. 11. The Election Fraud Lawsuit includes one out-of-context allegation that “Plaintiff Roy

Moore [had] successfully completed a polygraph test confirming that the representations of

misconduct made [by Ms. Corfman and other women] against him during the campaign are

completely false.” Id. ¶ 68. In support of that disconnected allegation, the complaint attaches an
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affidavit of Mr. Moore, in which Mr. Moore concludes with the untrue and defamatory

characterization of Ms. Corfman’s accounts as “false and malicious attacks.” Id. ¶ 73.

Benjamin DuPré, an authorized representative of the Moore Campaign Committee, also

defamed Ms. Corfman in Montgomery County. On November 21, 2017, at a televised press

event held in Montgomery, Mr. DuPré accused Ms. Corfman of lying about the sexual abuse that

she experienced. See Ex. A, Roman Affidavit ¶ 23; see also Compl. ¶¶ 83-86. Mr. DuPré

offered five sham points that he claimed discredited Ms. Corfman’s account of Mr. Moore’s

sexual misconduct, but do nothing of the sort. Compl. ¶¶ 83-86.

Not only is Montgomery County where defamatory statements were made, but also it is

more convenient for the witnesses. The Complaint identifies one entity and nine persons by

name or relationship with relevant knowledge of the Defendants’ defamatory acts. Of the

individuals who reside in Alabama, all but three reside in Montgomery or closer to Montgomery

County than to Etowah County. The other three are Mr. Moore, Ms. Corfman’s mother (who

lives in Guntersville, but does not object to testifying in Montgomery), and Ms. Corfman (who

filed in Montgomery). Id. ¶¶ 33-34; see also Ex. A, Roman Affidavit ¶ 6. The Moore Campaign

Committee was registered as doing business or having an office in Montgomery County. Id. ¶

35. The remaining witnesses (and their cities of residence) are Richard Hobson (Montgomery,

Alabama), Mr. DuPré (Montgomery, Alabama), William Armistead (Columbiana, Alabama),

Dean Young (Gulf Shores, Alabama), Janet Porter (Hinckley, Ohio), and Betsy Davis (Los

Angeles, California). Ex. A, Roman Affidavit ¶ 6.

3
The Court may consider affidavits and facts outside the Complaint in determining proper
venue. See, e.g., Carson v. Carson, -- So. 3d --, 2017 WL 1534451, at *1-2 (Ala. Civ. App.
2017).

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DEFENDANTS HAVE NOT MET THEIR BURDEN FOR A TRANSFER

A. Montgomery County is More Convenient for the Witnesses.

“A trial court should not grant a motion for a change of venue unless the defendant’s

proffered forum is significantly more convenient than the forum in which the action is filed.” Ex

parte Elliott, 2017 WL 6546313, at *2 (emphasis added).

Defendants have not shown—and cannot show—that Etowah County is more convenient,

much less significantly more convenient, for the parties and witnesses. As the facts set forth

above demonstrate, see supra at 4, Defendants cannot credibly maintain their position that

Etowah County is the “situs for witnesses and evidence.” Mot. at 5. To the contrary, the only

factor weighing in Etowah County’s favor is Mr. Moore’s preference for his home forum.

B. The Interests of Justice Support Venue in Montgomery County.

The interest-of-justice analysis supports transfer only where the county from which

transfer is sought has “little, if any” connection to the action, whereas the county to which

transfer is sought has a “strong” nexus or connection to the lawsuit. Ex parte Elliott, 2017 WL

6546313, at *3.

Here, however, Montgomery County has a strong connection to the lawsuit because at

least two defamatory statements were made in Montgomery County. See supra at 3-4

(describing defamatory statements by Mr. Moore and by Mr. DuPré). This fact alone—where

the acts were made that give rise to a claim—is “often assigned considerable weight in an

interest-of-justice analysis.” Ex parte Wachovia, 77 So. 3d 570, 574 (Ala. 2011).

In addition, at all times when the alleged defamatory statements were made by

representatives of the Moore Campaign Committee, the committee was based in Montgomery

County (as it was on the date suit was filed). See Ex. A, Roman Affidavit at ¶¶ 3-5.

Defendants’ arguments to the contrary are untethered to the law and the facts of this case.

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First, Defendants’ argument that “[m]ost of the acts that Ms. Corfman has alleged to have

occurred” took place in Etowah County, Mot. at 3, ignores that this is a civil action for

defamation, not a criminal prosecution for sexual abuse. Ms. Corfman’s Complaint alleges at

least 14 incidents of defamation between November 10 and December 27, 2017 in Montgomery

County and other counties in Alabama. Compl. ¶¶ 14, 45-93. Not one of those defamatory

statements was made in Etowah County.

Second, Defendants’ argument that the location of the defamatory statements should have

no bearing on venue because of the broad dissemination of those statements, Mot. at 5, is directly

contradicted by Alabama Supreme Court precedent. Alabama law is clear that “an individual

who makes an allegedly defamatory statement should be sued where the defamatory remark was

made.” Ex parte Windom, 840 So. 2d at 889 (quoting Ex parte Arrington, 599 So. 2d at 26).

Third, Defendants’ argument that Etowah County is the proper venue because Ms.

Corfman’s “injury” occurred there, Mot. at 3, is unsupported by law: “Significantly, in venue

cases, the word injury commonly refers not to the damage allegedly suffered by the plaintiff, but

to the wrongful act or omission allegedly committed by the defendant.” Ex parte Windom, 840

So. 2d at 889 n.2 (emphasis in original). As Mr. Moore himself has recognized, in a defamation

lawsuit, that means that venue is proper where the defamatory statement is made. See, e.g., id. at

890 (“[H]ad the action been filed in Montgomery County, the site of the press conference, venue

would have been proper because Montgomery County was ‘the county in which the act or

omission complained of may have been done or may have occurred.’”) (Moore, C.J.,

concurring).

Fourth, as discussed more fully in the opposition to Defendants’ Rule 12(b)(3) motion,

Defendants’ argument that the defamatory statement in the Election Fraud Lawsuit is protected

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by the litigation privilege ignores that the privilege does not apply because the statement is

irrelevant to that lawsuit. O’Barr v. Feist, 296 So. 2d 152, 156–57 (Ala. 1974) (privilege “does

not protect slanderous imputations plainly irrelevant and impertinent, voluntarily made, and

which the party making them could not reasonably have supposed to be relevant”). The Election

Fraud Lawsuit alleges “systemic election fraud,” including a statistical discrepancy between

votes, anomalous voter turnout, conflicts between election results and exit polls, unlawful

participation of out-of-staters, and voter intimidation. See Compl., Ex. 11. The complaint

includes one out-of-context allegation that “Plaintiff Roy Moore [had] successfully completed a

polygraph test confirming that the representations of misconduct made [by Ms. Corfman and

other women] against him during the campaign are completely false,” Compl. ¶ 68, supported by

an affidavit by Mr. Moore characterizing the accounts of Ms. Corfman and two other women as

“false and malicious attacks” that likewise has nothing to do with the claims in that lawsuit. See,

e.g., Blevins v. W.F. Barnes Corp., 768 So. 2d 386, 393 (Ala. Civ. App. 1999) (litigation

privilege not applicable where comments were not relevant or material to litigation, but rather

were intended simply to “attack the integrity” of a person).

Moreover, a merits-based analysis of the litigation privilege affirmative defense is

premature and should not inform the venue analysis. Plainly on the facts alleged in her

Complaint, the defamatory statements in the Election Fraud Lawsuit were made by Mr. Moore

“[w]ithout any relevance to his claims of election fraud or to the relief that he [was] seeking.”

Compl. ¶ 18; see also id. ¶ 68 (“This allegation has no relevance to the relief that Defendants

seek for the purported ‘election fraud.’”). Although Defendants can try to articulate a plausible

connection between the affidavit and the Election Fraud Lawsuit in discovery under oath, at this

juncture, the Court must take as true each allegation in the Complaint, including that the

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defamatory statements made in the Election Fraud Lawsuit had “no relevance” to that litigation,

and assess only whether Ms. Corfman “could prove any set of facts in support of [her] claim

which would entitle [her] to relief.” Tibbetts v. Tibbetts, 762 So. 2d 856, 858 (Ala. Civ. App.

1999); see also Ex parte Scannelly, 74 So. 3d 432, 438 (Ala. 2011) (Rule 12 dismissal based on

affirmative defense is appropriate only “[w]hen the plaintiff’s own factual allegations

affirmatively demonstrate that the plaintiff cannot recover”).

Fifth, Defendants’ arguments based on two out-of-state federal cases fail because they do

not even relate to venue. Mot. at 3. In Calder v. Jones, the U.S. Supreme Court held that

California had personal jurisdiction over the defendants in a defamation action because their

conduct in Florida was calculated to injure the plaintiff in California. 465 U.S. 783, 790-91

(1984). In McKee v. Cosby, the Massachusetts district court applied a choice of law analysis to

conclude that application of the substantive law where the plaintiff was domiciled at the time of

the alleged conduct was appropriate in a defamation lawsuit. 236 F. Supp. 3d 427, 436 (D.

Mass. 2017).

The only argument advanced by Defendants that has merit is their assertion that “[t]he

drama should properly play out where the underlying events at issue are alleged to have

occurred.” Mot. at 5. This is a defamation lawsuit, and as the Alabama Supreme Court has held,

the “drama” should play out “where the defamatory remark was made.” Ex parte Windom, 840

So. 2d at 889 (quoting Ex parte Arrington, 599 So. 2d at 26). Defendants defamed Ms. Corfman

at least twice in Montgomery County and not once in Etowah County.

Finally, because Montgomery County has a strong connection to the lawsuit, it will not

be burdened by the lawsuit. To the contrary, citizens of Montgomery County have an interest in

having this case tried in their county. See, e.g., Ex parte Elliott, 2017 WL 6546313, at *3 (“[I]n

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examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of

piling court services and resources upon the people of a county that is not affected by the case

and . . . the interest of the people of a county to have a case that arises in their county tried close

to public view in their county.’”) (emphasis added).

CONCLUSION

For the foregoing reasons, Defendants’ motion for change of venue should be denied.

Respectfully Submitted,

February 20, 2018 /s/ Melody H. Eagan

One of the Attorneys for
Plaintiff Leigh Corfman

Of Counsel: Pro Hac Vice Applications Pending:

Harlan I. Prater IV Neil K. Roman
hprater@lightfootlaw.com nroman@cov.com
Melody H. Eagan Megan L. Rodgers *
meagan@lightfootlaw.com mrodgers@cov.com
Jeffrey P. Doss COVINGTON & BURLING LLP
jdoss@lightfootlaw.com The New York Times Building
LIGHTFOOT, FRANKLIN & WHITE LLC 620 Eighth Avenue
The Clark Building New York, New York 10018
400 20th Street North (212) 841-1221 (telephone)
Birmingham, Alabama 35203 * Silicon Valley Office
(205) 581-0700 (telephone)
(205) 581-0799 (facsimile)

CERTIFICATE OF SERVICE

I certify that, on this 20th day of February, 2018, I filed the foregoing with the Clerk of
Court using this Court’s electronic filing system, which will provide a copy to all counsel of
record.

/s/ Melody H. Eagan

OF COUNSEL