Real Estate Topics Forum :: View topic - John T. Reed’s opposition to Russ Whitney’s motion to dismis

Guest

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

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

WHITNEY INFORMATION NETWORK, INC.,
a Florida Corporation, and RUSS WHITNEY,
an individual,
DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO
vs. DISMISS DEFENDANT’S COUN- TERCLAIMS
JOHN T. REED, an individual, CASE NO.: 2:04-CV-395-FTM-33DNF
(LAG)

Defendant.

Defendant, John T. Reed, pro se files this DEFENDANT’S OPPOSITION TO
PLAINTIFF’S MOTION TO DISMISS DEFENDANT’S COUNTERCLAIMS.
BACKGROUND
This opposition was originally filed on May 27, 2004 when these cases
were in the Southern District of Florida (Case #
03-60195-CIV-MARRA/SELTZER).
Since then, Plaintiff Whitney Information Network, Inc. has filed an
additional, fourth suit against Defendant in the 20th Circuit in and for
Lee County, FL, thereby providing additional evidence of one of
Defendant’s counterclaims against Plaintiffs: abuse of process.
TIME BARRED
The present motion duplicates one filed with the Middle District on or
around September 1, 2004 would appear, on its face, to be time barred.
Defendant uses the word “appear” because although he could find no
authority that says the deadlines have been extended, he is not a law
school graduate and therefore may have overlooked such authority.
F.R.C.P. 12(a)(1)(A) gives the Plaintiffs 20 days to move, as they did,
under F.R.C.P. 12(b)(6). The counterclaims in question were filed by
Defendant on March 18, 2004. No local rules extends that deadline. No
enlargement of time was requested of or granted by the Court or
Counterplaintiff.
Counterdefendants do not say, but implicitly appear to assert that the
transfer of the case from the Southern District of Florida to the Middle
District of Florida “restarts the clock.” However, they cite no such
authority and Defendant can find none. Plaintiffs triggered that
transfer by dropping their opposition to Defendant’s motion for change
of venue to Fort Myers on July 15, 2004. The Southern District promptly
granted Defendant’s motion to transfer. The amount of time between the
transfer and this motion is such that even a “restarting of the clock”
would not be enough. There would also have to be a successful motion for
enlargement of time. No such motion was made, agreed to by Defendant, or
granted by the Court.
Had Plaintiffs left the case in Fort Lauderdale, that federal court no
doubt would have granted or denied their motion. By moving the case to
Fort Myers, the Plaintiffs triggered the predictable result of having
all pending motions denied. The motions were denied “without prejudice,”
but “without prejudice” does not mean restarting pertinent deadline
periods or enlargement of time to answer or move.
In view of the vexatious nature of Plaintiffs’ various lawsuits, they
are not entitled to the benefit of any doubt with regard to enlarging
this litigation. Had they left the case in Fort Myers to begin with,
instead of dropping that suit and filing several others in other courts,
the trial in Fort Myers would long be over. Instead, they took Defendant
and the various federal and state courts on a two-and-a-half-year ride
to nowhere for no legitimate purpose.
MEMORANDUM OF LAW
This Plaintiffs’ motion, which was originally filed on May 27, 2004, is
one of an extraordinary number filed against Defendant at the end of
April, 2004 and during May, 2004. These motions are apparently part of a
new litigation strategy by Plaintiffs to bury Defendant in legal filings
in order to prevent him from conducting his one-man-shop business and
therefore force him to capitulate without a trial in this litigation.
F.R.C.P. 12(b)(6) motions are disfavored except in defamation cases. The
following is copied verbatim from Plaintiffs’ opposition to Defendant’s
12(b)(6) motion regarding the libel case against him. Because Defendant
has filed no defamation causes of action against Plaintiffs, their
original arguments against granting Defendant’s 12(b)(6) motion apply
more to the present motion by Plaintiffs than they did to Defendant’s
2002 motion. A motion to dismiss for failure to state a claim should be
denied “unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45 (1957) When considering a motion to
dismiss, the court is restricted to the four corners of the plaintiff’s
complaint. Florida County Clubs, Inc. v. Carlton, Field, Ward, Ammanuel,
Smith & Cutler, P.A., 98 F.Supp. 2d 1356, 1362 (M.D. Fla. 2000) The
“court must accept the plaintiff’s well pled facts as true and construe
the complaint in the light most favorable to the plaintiff.” Id. at
1362. “The threshold sufficiency that a complaint must meet to survive a
motion to dismiss is exceedingly low.” Id. (citing Ancata v. Prison
Health Serv., Inc., 769 F.2d 700, 703 (11th Cir. 1985)
With regard to Defendant’s counterclaim for violation of the
Anti-Cybersquatting Consumer Protection Act 15 USC 1125(d), Plaintiffs
misstate the law. The statute specifically lists a “personal name” as
being covered by the law. Defendant’s personal name is John T. Reed and
the domain name registered by
Plaintiffs—Whitney-facts-vs-johntreed.com—includes that entire name as
well as Defendant’s entire domain name: johntreed.com.
Plaintiffs also misrepresent Defendant’s counterclaim. Plaintiffs tell
the Court that Defendant claims the name “REED” is entitled to trademark
protection. Defendant claimed no such thing. Rather, Defendant complains
that his entire name (johntreed) and entire Web site domain name
(johntreed.com) have been illegally included in a domain name registered
by Plaintiffs. Plaintiffs attempt to reword Defendant’s counterclaim is
telling and is in the nature of a negative pregnant. Question: “Did you
register a domain name containing John T. Reed’s name?” Answer: “He is
not entitled to trademark protection of the name REED.” By twisting the
issue as they have, Plaintiffs implicitly plead “guilty” to the
violation of law alleged by Defendant.
Plaintiffs allege that the domain name Whitney-facts-vs-johntreed.com is
not identical or confusingly similar to “REED.” This is akin to the
fairy tale representations that the emperor’s new clothes looked great.
The “johntreed” portion of the domain name in question is identical to
Defendant’s personal name and the “johntreed.com” portion of the domain
name registered by Plaintiffs is also identical to Defendant’s domain
name. Furthermore, the addition of the phrase “Whitney-facts-vs-” as a
prefix to Defendant’s entire personal name and entire domain name are
insufficient to prevent a reasonable reader from being confused as to
who owns the domain Whitney-facts-vs-johntreed.com: Whitney or Reed.
Indeed, one of the pages at Reed’s Web site has long had the URL
www.johntreed.com/Whitneyclaims and the title “Russ Whitney’s claims
versus John T. Reed’s investigation.” The link at Defendant’s main page
on Whitney is labeled “Russ Whitney’s various success and other claims
versus John T. Reed’s investigations.” As the Court can see, these
titles are very similar to the domain name illegally registered by
Plaintiffs even though the two domain names are owned by opposite
parties.
If Plaintiffs were not acting in bad faith and trying to profit from
Defendant’s name and domain name, they could have chosen a domain name
that left no question as to whether johntreed was the owner and operator
of the domain in question. The logical, nonconfusing place for the
material presented at Whitney-facts-vs-johntreed.com would have been at
Plaintiffs’ pre-existing russwhitney.com Web site. Whether the domain
name Whitney-facts-vs-johntreed.com in confusingly similar to Defendant
John T. Reed’s name or his domain name johntreed.com to a reasonable
person is a matter for the jury to decide after hearing pertinent
evidence and observing the demeanor of the relevant witnesses. Matters
involving intent are not susceptible to resolution by a 12(b)(6) motion.

On page 8 of their original motion, Plaintiffs allege that the Web site
Whitney-facts-vs-johntreed.com “offers nothing for sale.” This is
disingenuous. Plaintiffs have been claiming since their first
threatening letter to Defendant in December, 2000, that the names “Russ
Whitney,” “Whitney,” and “Whitney Information Network, Inc.” were famous
and well known to buyers of real estate investment information.
Virtually every legal paper filed in the various lawsuits against
Defendant says these are famous names that are identified with
Plaintiffs and their sale of real estate investment products and
services. Now they would have the Court believe that, “There’s nobody
here but us allegation controverters” in the operation of a Web domain
that uses Defendant’s name. The entire purpose of the
Whitney-facts-vs-johntreed.com domain name web site is to sell products
and services as evidenced by Plaintiffs’ citing it as mitigation of
damages in their Motion to Strike Defendant’s Affirmative Defenses.
Plaintiff Russ Whitney has shown little interest in any activity other
than selling his products and services. The absence of an advertisement
per se for Plaintiffs’ products or services on the
Whitney-facts-vs-johntreed.com Web site means little in view of the
well-established connection of the Russ Whitney name to his products and
services. Would anyone believe that a Web site where Coca Cola
“controverted allegations” by Pepsi was not intended to sell Coke?
With regard to Defendant’s abuse-of-process counterclaims, Plaintiffs
have a policy of using threats of litigation and litigation to silence
honest critics. Silencing honest critics through legal process is an
ulterior motive. Plaintiffs have advertised and even bragged about this
policy through emails, verbal announcements at seminars, statements made
at Plaintiffs’ business meetings, and in phone calls to targets of their
abuse of process and threatened abuse of process among other methods.
The jury needs to hear testimony regarding Plaintiffs’ various threats
of lawsuits and filing of lawsuits and other legal papers to determine
whether abuse of process has been committed. Intent cannot be
ascertained on the briefs in a Rule 12(b)(6) motion.
The Broward County suit by Plaintiffs complained about the same David
Keith email as the Fort Myers complaint. Furthermore, the second and
third complaints could have and should have been added, if at all, by
amending the original Fort Myers complaint. The filing of repetitive
actions covering the same or related facts in three different courts had
the improper ulterior motives of harassing the Defendant, increasing his
legal costs in both time and money, and forum shopping. There have also
been numerous filings of disfavored and moot motions for the same
ulterior motives. Whether Plaintiffs are violating common law against
abuse of process can only be determined by the jury hearing and seeing
evidence of Plaintiffs general policy of using litigation and threats of
litigation as a means of intimidating honest critics and of hearing
testimony comparing Plaintiffs’ various legal maneuvers in this
litigation with the legal maneuvers of parties who are not engaged in
abuse of process in similar cases.
Plaintiffs’ statement on page 12 of their original motion that they were
“merely informing” companies doing business with Defendant of “their
possible exposure to legal action” are more “don’t the emperor’s new
clothes look great” statements. Plaintiffs’ counsel would tell the Court
the sun rose in the west with equal certainty if it might help win a
motion. The letters attached to Defendant’s counterclaims as evidence of
tortious interference with a business relationship are from a law firm.
They ask the recipients to stop doing business with Defendant. One
orders the recipient to “cease and desist.” A jury is needed to
determine the effects such letters would have on a reasonable person and
to hear testimony as to the motives of the senders and justification for
sending the letters and other similar letters.
Wherefore Defendants prays that the Court will deny Plaintiffs’ motion
to dismiss Defendant’s counterclaims.

Respectfully submitted,

________ ___________________________
Date John T. Reed, Pro Se
Defendant
342 Bryan Drive
Alamo, CA 94507
Telephone: 925-820-6292
Fax: 925-820-1259
email: johnreed@johntreed.com

Copyright 2003 Last update 3/11/03
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.