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John T. Reed’s motion for leave to amend his motion to dismiss

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.
_____________________________________
DEFENDANT’S MOTION PURSUANT TO F.R.C.P. 15(a) FOR LEAVE TO AMEND MOTION TO DISMISS AND SUPPORTING MEMORANDUM OF LAW
Now comes the defendant, John T. Reed, pro se, and moves this court under F.R.C.P. 15(a) for leave to amend his Motion to Dismiss. In support thereof, the defendant asserts as follows:
1. Granting leave to amend the motion is in the interest of justice and is necessary to insure that the case in adjudicated fairly and justly.
2. Plaintiff has not relied on the original motion to dismiss or the court’s denial of it and will not be prejudiced by prompt amendment of the motion since only three weeks passed between Defendant’s motion and the Court’s Order to Show Cause raising the issues of lack of personal jurisdiction and improper venue.
3. Permitting the amendment is authorized by F.R.C.P. 15 (a) and will insure that the case is decided on its merits.
4. The case will not be unduly delayed by granting leave to amend the motion to dismiss.
5. Because of its promptness, this motion is in the nature of a motion to enlarge time under F.R.C.P. 6(b) and should be granted according to the standards of F.R.C.P. 6(b).
6. Defendant is neither a lawyer nor a law school graduate.
7. Pro se litigants are to be afforded great leeway by the courts on procedural matters.
8. Defendant received Plaintiff’s amended complaint late on the afternoon of Friday, May 30, 2003.
9. In view of the fact that Plaintiff’s Amended Complaint changes wording pertinent to the issues of personal jurisdiction and proper venue, Defendant’s right to move or answer with regard to the Amended Complaint, including moving for dismissal on the grounds of lack of personal jurisdiction or improper venue, has been rejuvenated.
10. Defendant has been unable to learn from the court clerk or docket clerk whether he has a separate Defendant’s deadline to respond to the Order Show Cause or to Plaintiff’s papers so he assumes he does not and files this motion immediately in the hope it will be considered before the Court decides the issues raised by the Show Cause Order.
11. Defendant sent Plaintiff’s counsel a fax asking for permission to amend his original motion to dismiss on Friday, 5/30/03, however, Defendant did not return from the law library until after business hours East Coast time so the fax was sent after counsel’s business hours on Friday evening.
12. Defendant made a reasonable effort to confer with counsel on this matter, but because of the apparent extremely short time to get papers to the Court was unable to do so.
MEMORANDUM OF LAW
AMENDMENT OF MOTIONS
13. “In Carter v. American Bus Lines, Inc. (DC Neb. 1958, 22 FRD 323), defendant moved under Rule 12(b)(6) to dismiss the complaint for failure to state a claim for relief and after that motion was overruled [sic], sought a dismissal for lack of personal jurisdiction. When the court ruled that defendant’s objection to personal jurisdiction had been waived pursuant to Rule 12(g), defendant moved to amend his first motion to include the Rule 12(b)(2) objection. Rejecting the argument that Rule 15(a) amendments are limited by the definition of a ‘pleading’ set forth in Rule 7(a), the court stated:”

The Court has considerable difficulty with this mechanical reasoning. Federal Rule 15(a) provides for leave to amend “pleadings” to be given when justice so requires. Rule 8(f) admonishes the Court: “All pleadings shall be construed as to do substantial justice.” The Court cannot believe that the word “pleadings” used in instances such as this is restricted to those papers set forth in Rule 7(a).

“…allowing the trial judge to exercise discretion to permit the amendment of motions under appropriate circumstances is in keeping with the liberal amendment policy of Rule 15(a), and in the absence of prejudice to the adverse party, will help to insure that the case is decided on the merits.” Federal Practice and Procedure by Wright Miller and Kane §1475
14. “A motion is subject to ‘timely’ amendment;…Under normal conditions, a motion is not a pleading and therefore is not considered as a pleading in applying the provisions of Rule 15 dealing with the amendment of pleadings. The general concern regarding a permissive attitude toward amendment of motions is that lawyers will be tempted to file them in skeletal form and rely on their ability to expand or add new grounds at a later time. Although this fear can be raised in connection with the amendment of pleadings, it has never been viewed as weighty enough to warrant compromising the effectiveness of the liberal policy of Rule 15. Moreover, as long as the ability to amend a motion is left to the discretion of the trial judge, his ability to deny leave to amend when he believes the amendment process is being abused provides a sufficient safety valve [Robinson v. Worthington, DC Ala. 1982, 544 F. Supp. 949] Thus, although there by be valid policy reasons for not granting the movant an absolute or automatic right to amend his motion, there is no reason to deny amendment when the trial judge believes it would be in the interest of justice to permit it. The use of discretion seems especially appropriate if the adverse parties will not be prejudiced by the amendment, or if the amendment is necessary to insure that the case s adjudicated fairly and just or if it will help resolve the litigation at an early date.…a court probably will permit a Rule 12(b) motion to be amended to assert another Rule 12(b) defense when the amendment is sought promptly and before the parties have relied on the original grounds. The court should use a test based on whether the movant’s adversary will be prejudiced or the case unduly delayed. [Polaroid Corp. v. Feely, D.C. Mass. 1995, 889 F. Supp. 21; Tennessee Gas Pipeline Co. v. Continental Cas. Co., D.C. La. 1993, 814 F. Supp. 1302; Select Creations, Inc. v. Paliafito America, Inc., D.C. Wis. 1992, 828 F. Supp. 1301]
“One easy solution is to treat the motion to amend as one to enlarge time pursuant to Rule 6(b) and allow the standard under that rule to control.”
Federal Practice and Procedure by Wright Miller and Kane §1194
15. “Under certain circumstances, even though technical compliance with F.R.C.P. 12(g) and F.R.C.P. 12(h)(1) would mandate the conclusion that defendant has waived a certain defense, the court may chose to excuse the defendant from the waiver. [United Advertising Agency, Inc. v. Robb, (1975, MD NC) 391 F. Supp. 626, a case in which the alleged waiver was a pro se]
AMENDMENT OF COMPLAINT
16. By amending their complaint, and, in particular, amending the portions relating to personal jurisdiction and proper venue, Plaintiffs provide Defendant anew with the right to move or answer the amended pleadings. That right to move includes filing any motion permitted by F.R.C.P. 12. In effect, by thus amending their complaint, Plaintiffs have waived their right to prevent Defendant from asserting lack of personal jurisdiction or improper venue as a defense or as grounds for dismissal or transfer.
PRO SE LEEWAY
17. “One court has noted that the ‘Byzantine complexities” of F.R.C.P. 12(g) and 12(h), supposedly adopted to simplify pleadings in the federal courts, seem to be an unnecessary trap for the unwary.” [Ryan v. Glenn (1971, DS Miss) 52 FRD 185] Federal Procedure Lawyers Edition §62:402
18. Pro se pleadings are construed more liberally than pleadings drafted by lawyers. Hughes v. Rowe, 449 US 5; Harris v. Ostrout, 65 F 3d 912 (11th Cir. 1995)
19. Pro se litigant is afforded “great leeway.” Brazil v. U.S. Department of the Navy, 66 F3d 193 (9th Cir. 1995)
20. Lawyers learn about the law comprehensively from law school studies and experience. In contrast, pro se litigants learn about pertinent law solely through the indexes of law books. Reading law through the “keyhole” of a law book index is generally sufficient to research actions, but it is poor way to gain understanding of the consequences of certain inactions. That is particularly true when the procedural rule in question, as here, is counterintuitive and “Byzantine.”
Wherefore the defendant moves this court to grant him leave to amend his original motion to dismiss.

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

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