Analysis: ACC's motion rooted in venue argument for N.C. court

On Friday, the Atlantic Coast Conference filed a 45-page Motion to Dismiss or alternatively Stay the Florida State Board of Trustees’ amended complaint filed in the Leon County Circuit Court, arguing the proper venue for the legal battle between the ACC and the FSU BOT should be in a North Carolina Court.

While this ACC’s filing addresses each of the allegations made in Florida State’s amended complaint — in colorful and increasingly combative language — it appears to this layman that while there's a lot of juicy items in this motion, the meat is the on-going battle for venue. Throughout this motion, the ACC’s lawyers sought to provide Leon County Circuit Court Judge John Cooper with defensible reasons to dismiss, or at least stay, the case in Tallahassee in favor of Charlotte, N.C.

In this article we review their reasons for a dismissal, or a stay, and will wait to allow our legal analysts time to review and respond to the more technical details of the ACC’s response to FSU’s amended complaint before tackling some of the juicier items, including a long response to FSU’s claim the Grant of Rights includes “punitive penalties.”

We want our lawyers to dissect the ACC’s response, which has some non-lawyers claiming it is the first hint of a negotiated buyout. We advise caution here as earlier Friday, a social media post falsely claimed FSU is seeking bids on nearly $500 million of bonds to buy its way out of the ACC. FSU is bidding over $400 million in bonds but they are for the Doak Campbell Stadium and the Football Operations projects and not for an ACC buyout.

Florida State filed a similar motion to dismiss or stay the case in North Carolina in favor of the Tallahassee venue earlier this month and that court will hear those arguments on March 22nd.

In Section II, the ACC lawyers present four reasons to outright dismiss the case, which include:

1. Florida State has not pleaded a legally cognizable theory for establishing that this Court has personal jurisdiction over the ACC. See Fla. R. Civ. P. 1.140(b).

2. Second, venue is not proper in this Court. See Fla. R. Civ. P. 1.140(b).

You’ll find their third reason particularly interesting.

3. “Florida State’s “penalty” claim challenging its contracts with the ACC is not ripe because Florida State does not allege that it has withdrawn from the Conference, that it will withdraw from the Conference, or that it intends to withdraw from the Conference; it seeks an impermissible advisory opinion on whether these agreements are a penalty on its theory that if it can receive a favorable opinion, then its Board of Trustees might vote to withdraw at some point in the future.”

According to the ACC’s Florida Based lawyer Alan Lawson, “Florida State is improperly using this Court to air decades-old insinuations (apparently solely from an old news article) about former ACC Commissioner Swofford and his son while simultaneously seeking an impermissible advisory opinion about decades-old contractual provisions that it may never invoke.

“The Court has no power to give it one (an opinion),” Lawson writes. “For more than 70 years, Florida law has required that before a claim for declaratory relief can proceed, ‘it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts, that some immunity, power, privilege or right of the complaining party is dependent upon some facts or the law applicable to the facts . . . and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.’ ” May v. Holley, 59 So. 2d 636, 639 (Fla. 1952); see also South Riverwalk Invs., LLC v. City of Ft.Lauderdale, 934 So. 2d 620, 622 (Fla. 4th DCA 2006)

4. Not one of Florida State’s seven counts states a cause of action. See Fla. R. Civ. P.1.140(b)(6).

In addition to these four grounds for total dismissal, Lawson claims, “FSU’s amended complaint establishes — on its face — three affirmative defenses that doom several of its claims.”

In Section III of the motion, the ACC asks in the absence of an outright dismissal of the case, the ACC lawyers close their argument with reasons why Cooper should consider an alternative motion to stay the case in Tallahassee in favor of a North Carolina venue:

Lawson argues that because the North Carolina case has priority over FSU BOT case filed in Tallahassee, “the only viable call for today is to stay this case pending disposition of the North Carolina case.” Lawson notes under Florida law, “[i]t is well-established that in instances where co-sovereigns both maintain jurisdiction regarding a single dispute, principles of comity dictate that the court in which jurisdiction first attaches should be given priority regarding adjudication of its case.” Reliable Restoration, LLC v. Panama Commons, L.P., 313 So. 3d 1207, 1209 (Fla. 1st DCA 2021).

You’ll recall the ACC filed its complaint on December 21, 2023, just hours before the FSU BOT took its vote to file against the ACC. In this motion, the ACC says it “acted to protect itself and its other members by suing FSU’s Board of Trustees in North Carolina state court. Specifically, the ACC sought a declaratory judgment that the Grant of Rights and Amended Grant of Rights are valid and enforceable contracts and further sought the application of waiver and estoppel to any challenge to the Grant of Rights, as amended.”

The motion notes that courts call this the “principle of priority” and apply it where the parties are litigating “substantially similar” claims in two courts. Id. at 1210

“In this case, the principle of priority requires a stay because:

(1) the same parties are litigating over the same contracts in both North Carolina and Florida;

(2) North Carolina has priority because jurisdiction first attached there; and

(3) Florida State cannot establish any exceptional circumstances that would justify denying a stay.

The ACC argues that one court needs to take precedence as there are competing claims, including the enforceability of the Grant of Rights and Amended Grant of Rights which cannot be “simultaneously enforceable (as pressed for in North Carolina) and unenforceable (as pleaded for here). The parties also bring competing claims of breach. Any judgment will bear on the other party’s ability to assert affirmative defenses and counterclaims. In short, any judgment entered by this Court on any relief sought by Florida State runs the risk of competing with any judgment entered by the North Carolina court.

The Florida-based lawyers also contend that Florida law requires a stay. “Although this Court has discretion in ruling on any motion to stay, ‘absent extraordinary circumstances, a trial court abuses its discretion when it fails to respect the principle of priority.’ Such circumstances almost always center on undue delay by the court with priority. Indeed, Florida caselaw appears to be missing a single example of an exceptional circumstance that warranted departing from the principle of priority in an analogous civil case centered on a contractual dispute between highly sophisticated parties. In contrast, examples abound of analogous cases where trial courts denied priority-based stays only to have those orders quashed.”

Did you hear the warning of appeal there in that last sentence?

The ACC also notes that the same parties are litigating over the same contracts in North Carolina and Florida. To satisfy the threshold requirement of “substantial similarity… the pivotal question is whether the second-filed action is sufficiently similar in parties and issues as to be unnecessarily duplicative of the prior-filed proceeding.”

The ACC argues the two cases meet that threshold.

Our legal analysts predicted venue would be the first battlefield and not to be surprised if there were appeals to whatever the judge’s rule. We’ll bring you a second story addressing the ACC’s staunch answers to FSU’s amended complaint once our legal analysts complete their review.

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