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John T. Reed’s opposition to Russ Whitney’s motion to dismiss Reed’s counterclaims

John T. Reed, Pro Se
342 Bryan Drive
Alamo, CA 94507
johnreed@jontreed.com
925-820-6292 fax 925-820-1259

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
JOHN T. REED, an individual, No. C 04-00228 JSW
Plaintiff, PLAINTIFF'S OPPOSITION
v. TO DEFENDANTS' MOTION TO STRIKE OR DISMISS
JAMES ALVIN PETERSON, an individual, et al.
Defendant.
_______________________________

I. BACKGROUND
At the Court's request, Plaintiff submitted a supplement to his opposition to Defendants' motion to dismiss under F.R.C.P. 12(b)(6). Defendants subsequently moved to strike it under F.R.C.P. 12(f). Plaintiff hereby responds to a few of the points Defendants make in their motion to strike.
II. ARGUMENT
1. UNTIMELY FILING WITH THE COURT
Defendants say at line 24 on page 2 of their brief that Plaintiff told “…the Court that he would only require four (4) additional days to prepare this Supplemental Brief.” That is false. In response to the Court's question, Plaintiff said, “One week.”
Judge White said, “I'll give you ten days,” and asked the court clerk what date that would be. She said July 16, 2004.
On July 15, 2004, one day before the Court's deadline, Plaintiff delivered the supplemental brief to Federal Express in Walnut Creek, CA before their deadline. Plaintiff selected the Priority Overnight category of service which is defined on the Fedex Air bill (Exhibit A) as “next business morning” delivery. July 15th was a Thursday. July 16th was a non-holiday Friday.
The Fedex invoice (Exhibit B) indicates that they delivered the supplemental brief to Defendants' counsel on Friday July 16, 2004, but did not deliver the supplemental brief to the Court until July 19, 2004. Examination of the air bill reveals that Plaintiff absentmindely put his own ZIP code-94507-as the Court's ZIP code instead of 94102. This is likely the reason why the papers were delivered late to the Court. Plaintiff apologizes to the Court for the mistake.
The invoice also indicates a higher charge for the package delivered to Defendants' counsel suggesting that he received the package intended for the Court. The Court's package had two copies of the supplemental brief-one in an envelope marked “chambers.” The package intended for Defendants only had one copy of the supplemental brief. This might explain how Mr. Morales learned that the package sent to the Court may not have been delivered on time.
Fedex is normally extremely reliable, having long advertised that packages will “absolutely, positively” be delivered when promised. Plaintiff has used them for many years and recalls only one late delivery-to a private home. Plaintiff would have thought FEDEX would be even less likely than normal to deliver late to the Court because they presumably make a lot of deliveries there.
Alternative delivery services like a courier probably are statistically less reliable and would have cost more-a cost potentially born by Defendants should Plaintiff prevail. Plaintiff has no experience with local couriers. Hand delivery by Plaintiff would have cost even more.
In view of the fact that Defendants received their copy of the supplemental brief on time, it would appear than they have not been prejudiced in any way by Fedex's late delivery to the Court.
Also, Plaintiff completed his supplemental brief on time and did not benefit in any way from the package being delivered late to the Court. In view of the fact that Plaintiff took normal, reasonable care to file the supplemental brief with the Court in a timely manner and the lack of prejudice to the Defendants and lack of benefit to the Plaintiff, Plaintiff respectively requests that the Court disregard the late delivery as insignificant and consider the brief in spite of the late delivery date.
2. DEFENDANTS' COMPLAINTS THAT PLAINTIFF HAS NOT YET PRESENTED HIS ENTIRE CASE
Much of Defendants' complaints about the time Plaintiff has taken and will take in the future essentially protest Plaintiff's failure to have already presented his entire case. Plaintiff will present his entire case at the arbitration or trial in the normal course of litigation. The supplemental brief relates only to the present pre-answer motions to dismiss under Rule 12(b)(6) or for summary judgment under Rule 56. To present his entire case, Plaintiff needs the answers, discovery, and time that plaintiffs normally get in litigation. The federal and local rules pertaining to pre-answer motions offer the Plaintiff only an eye-dropper-like opportunity to present evidence and require that such evidence be compiled and presented on extremely short deadlines compared to the rest of the litigation process.
At this stage, Plaintiff need only clear the exceedingly low 12(b)(6) hurdle. A Rule 56 motion before answers and discovery in an intellectual property case is inappropriate in the Ninth Circuit as stated in Plaintiff's original opposition brief. Plaintiff believes the material provided to the Court thus far, including copies of the books and the supplemental brief, more than meets Plaintiff's burden under 12(b)(6).
3. THE COURT SHOULD NOT USE A PIECEMEAL APPROACH
Copyright protection for non-fiction works is broader than Defendants claim. The Court must look at the entire works and not treat them as hundreds of separate cases involving narrow issues like who owns the word “tempo” or who owns the law book format. It is the combining of existing words, phrases, formats, organization, and so forth that creates an original, copyrightable work. Defendants approach would have the Court analyze a 240-page book as if it were a collection of fortune cookie sayings. Plaintiff set forth the arguments and legal precedents supporting a broader, comprehensive analysis in his original opposition brief.
4. PLaINTIFF'S PRE-LITIGATION CONSULTATION WITH COUNSEL
Plaintiff has stated that he paid a copyright attorney to tell him whether Defendants' book infringed on Plaintiff's copyright before deciding to file this suit. In the present motion to strike, Defendants complain on page 4, line 4 of their motion to strike that Plaintiff has never provided evidence of this. Accordingly, Plaintiff attaches the letter from the attorney hereto as Exhibit C.
5. RULE 12(f) MOTION
Plaintiff sees no basis for Defendants' Rule 12(f) motion. One can find numerous statements in Defendants' moving papers, hearing comments, and ADR conference call that would appear to meet their extremely broad definition of “inadmissible, redundant, immaterial, impertinent, or scandalous.” This 12(f) motion is further evidence of an overly belligerent litigation strategy designed to intimidate Plaintiff and maximize nuisance to the Court and threat to the Plaintiff by maximizing consumption of judicial resources and Defendants' legal expenses.
Defendants' motion to strike or dismiss is full of conclusory words like “obvious” and “clearly.” If something is obvious or clear, no one need point it out. If it needs to be pointed out, it must not be so obvious or clear. Conclusions are the exclusive province of the Court. Conclusory statements by Defendants are attempts to spin the Court and are “doth protest too much” in nature. Conclusory statements by parties in briefs are attempts to usurp the Court's role and as such are impertinent, to use a word that Defendants like.
Plaintiff believes that the Court now has sufficient evidence with the books themselves and Plaintiff's sample list of substantial similarities to decide the motions without further help from the parties.
During the July 2, 2004 hearing, Defendants protested that the supplemental brief requested by the Court would force Defendants to incur additional expense responding to it. Judge White suggested that the Defendants refrain from an extensive response to Plaintiff's supplemental brief-apparently to no avail.
In keeping with the Judge White's request, Plaintiff will not refute Defendants' latest arguments point by point. Rather, Plaintiff rests his case with regard to the present motions.
III. CONCLUSION
The untimely delivery to the Court is an insignificant issue that should not affect the Court's consideration of Defendants various motions.
Defendants made their general position abundantly and redundantly clear before this motion to strike or dismiss. The present motion appears to be mainly an attempt to intimidate and harass Plaintiff with a fourth traditionally-disfavored motion. Defendants promise a fifth traditionally-disfavored motion-for sanctions under Rule 11.
Wherefore Plaintiff respectfully requests that the Court deny Defendant's motion to strike Plaintiff's supplemental brief or to dismiss the complaint in this case.
Date: August 2, 2004 ___________________________________
John T. Reed
342 Bryan Drive
Alamo, CA 94507
925-820-6292 fax 925-820-1259
johnreed@johntreed.com

John T. Reed, Pro Se
342 Bryan Drive
Alamo, CA 94507
johnreed@jontreed.com
925-820-6292 fax 925-820-1259

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOHN T. REED, an individual, No. C 04-00228 JSW
Plaintiff, DECLARATION OF
v. SERVICE
JAMES ALVIN PETERSON, an individual, et al.
Defendant.
________________________________/
JOHN T. REED, under penalty of perjury hereby declares:
I served the Plaintiff's Opposition to Defendants' Supplemental Motion to Dismiss on David P. Morales, counsel for Defendants, by FedEx on August 2 2004.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on August 2, 2004.

John T. Reed, pro se
342 Bryan Drive
Alamo, CA 94507 925-820-6292, fax 925-820-1259
johnreed@johntreed.com

Copyright 2005 by John T. Reed
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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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