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John T. Reed’s motion to change venue of Russ Whitney’s Miami case to San Francisco

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

WHITNEY INFORMATION NETWORK, INC.,
a Colorado Corporation,

Plaintiff,
v.

JOHN T. REED, an individual, CASE NO.: 03-60597-SEITZ/ BANDSTRA

Defendant.
_____________________________________
MOTION TO CHANGE VENUE CHANGE OF VENUE FOR CONVENIENCE OF WITNESSES AND IN THE INTEREST OF JUSTICE UNDER 28 U.S.C. §1404(a) AND SUPPORTING MEMORANDUM OF LAW BY DEFENDANT
Now comes the defendant, John T. Reed, pro se, and moves this court under U.S.C. 1404(a) to transfer this case to the Northern District of California for the convenience of witnesses and in the interest of justice. In support thereof, the defendant asserts as follows:
1. Defendant and his books, records, documents, and exhibits in connection with the matters in controversy are located in the Northern District of California.
2. Plaintiff’s books, records, documents, and exhibits in connection with the matters in controversy are generally unrelated to proving their case because of the specific nature of the complaint.
3. Because this is a public figure plaintiff-media defendant case, the state of mind of the Defendant is a crucial issue and the evidence of the Defendant’s state of mind is all in the Northern District of California.
4. The population of California is approximately double that of Florida. Plaintiff offers its products and services nationwide therefore the greatest harm to Plaintiff would occur in California and the greatest number of potential witnesses who are customers, former customers, or prospective customers of Plaintiff are in California.
5. This case should be governed by the laws of the State of California where the conduct and occurrence that give rise to the litigation—publication—took place, not the 49 other states, including Florida, where the publication might merely have been read. The Northern District of California has greater experience applying California law.
6. This is a First Amendment case and therefore the Court should show special concern for the chilling effect of allowing plainitffs to hale publisher defendants into inconvenient forums.
7. Upon information and belief, Plaintiff runs its TV infomercials everywhere in the United States except in the Middle District of Florida, therefore that district would have a unique lack of witnesses who are customers, former customers, or prospective customers of Plaintiff.
8. The Northern Distrrict of California has the most signifiant relationship to the case.
9. The principal connection between this controversy and the Southern District of Florida appears to be the location of Plaintiff’s counsel.
MEMORANDUM OF LAW
NATURE OF THE CASE
10. Plaintiff alleges Defendant’s statement that Plaintiff is “insolvent” appearing for four days on Defendant’s Web site was false, defamatory, and published with acual malice and that Plaintiff was harmed by that statement.
11. In such a case, the Court is likley to hear witnesses with regard to Defendant’s state of mind [Herbert v. Lando, 441 U.S. 153 (1979)], with regard to how a reasonable person would interpret the complained-of word, and what effect on Plaintiff would result from that reasonable person reading the complained-of word.
CONVENIENCE OF WITNESSES
12. “Probably the most important factor and the factor most frequently mentioned in passing on a motion to transfer under 28 USC 1404(a) is the convenience of witnesses.” Moore’s Federal Practice and Procedure, Jurisdiction §3851. (Saminsky v. Occidental Petroleum Corp., DCNY 1974 373 F. Supp. 257) Most of the proper and necessary witnesses in this case are the parties, Plaintiff’s current, former, and prospective customers and shareholders. Plaintiffs’ customers are scattered in every district in the United States as well as in Canada and the United Kingdom.
13. The only known witness as to Defendant’s state of mind is Defendant, a resident of the Northern District of California.
14. The winesses as to the word “insolvent’s” effect on a reasonable person and his or her resulting change in their behavior with regard to Plaintiff would be current, former, and prospective customers and shareholders of Plaintiff. Such persons are scattered around the United States and the world with the largest number of them being in the state with the most population: California.
15. In its response to the Court’s Show Cause order, Plaintiff claims it has over 30 witnesses regarding damage to Plaintiff’s business. Undoubtedly, these are all or almost all employees of Plaintiff whose testimony would likely be excluded as self-serving hearsay. Admissible damage testimony would take the form of ,“I read the word ‘insolvent’ and as a result of reading that word decided not to do business with Plaintiff.” Plaintiff’s employees cannot provide such testimony.
16. Upon information and belief, based on conversations with former employees of Plaintiff, Plaintiff has a policy of not running its TV infomercials in the vicinity of its Cape Coral, FL headquarters. Reportedly, the purpose of this policy is to prevent CEO Russell A. Whitney from being recognized and bothered on local streets. As a result of this policy, Florida has a unique dearth of Plaintiff’s customers, former customers, and prospective customers.
17. Defendant would be prejudiced by having to adjudicate this case in a forum where Plaintiff can inexpensively pack the witness list and gallery with its employees and where it has had a deliberate policy of not soliciting customers through its main form of advertising: TV infomercials.
LOCATION OF COUNSEL NOT TO BE CONSIDERED
18. The sole reason this case is in the Southern District appears to be the location of Plaintiffs’ counsel. It is well settled that this should not be given any weight. (Poncy v. Johnson & Johnson, DC Fla 1976 414 F. Supp. 551)
CHANGE OF VENUE WILL RESULT IN NET INCREASE IN CONVENIENCE
19. The requested change of venue will have no effect on the parties because either Florida or California venue results in one of the parties flying between the two. However, the change will result in net convenience to the customer witnesses because they are more numerous by an order of magnitude in California, which has twice the population of Florida and has not been blacked out as to informercials by Plaintiff..

Wherefore the defendant moves this court to transfer the complaint against him to the Northern District of California.

Respectfully submitted,

_______ _____________________
date John T. Reed
Defendant
342 Bryan Drive
Alamo, CA 94507
Telephone: 925-820-6292
Fax: 925-820-1259
email: johnreed@johntreed.com
John T. Reed, a.k.a. John Reed, Jack Reed, 342 Bryan Drive, Alamo, CA 94507, Voice: 925-820-7262, Fax: 925-820-1259, Email: johnreed@johntreed.com

CONSUMER WARNING NOTICE: I recently saw Russ Whitney on a late night TV infomercial and then attended one of his "free" seminars. Unfortunately I believed all of their LIES and FRAUDULENT CLAIMS and I paid thousands of dollars to go to his "training camps". Needless to say I was clearly ripped off, cheated and lied to by Russ Whitney and his employees (band of thieves). My mistake was not searching the Internet to find out more about Russ Whitney and his company's HORRIBLE reputation for fraud, deception and illegal activities. Had I searched online I would have found out about THOUSANDS of customers being cheated, HUNDREDS of investigations by the Attorney General into the fraud of Russ Whitney and his company's, and that Russ Whitney himself is a CONVICTED VIOLENT FELON and spent years in PRISON. I saved the cached pages from the major search engines of the John Reed lawsuit with Russell Whitney and the TRUTH and FACTS that Reed discovered during his investigation of Whitney. I am posting this information on real estate discussion boards so other people do NOT get cheated and ripped off like I did.