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John T. Reed’s opposition to Russ Whitney attempt to get yet another delay

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

WHITNEY INFORMATION NETWORK, INC.,
a Florida Corporation, and RUSS WHITNEY,
an individual,

vs.

JOHN T. REED, an individual, Case No. 2:04-cv-00395-FTM-DNF (LAG)

Defendant.

DEFENDANT'S SECOND OPPOSITION TO PLAINTIFF'S MOTION TO ENLARGE TIME TO RESPOND TO DEFENDANT'S INTERROGATORIES

Defendant, John T. Reed, pro se files this DEFENDANT'S SECOND OPPOSITION TO PLAINTIFF'S MOTION TO ENLARGE TIME TO RESPOND TO DEFENDANT'S INTERROGATORIES AND MEMORANDUM OF LAW IN SUPPORT as follows:
1. On Monday, June 13, 2005, DEFENDANT JOHN T. REED (REED) received an email (Exhibit A) from Plaintiffs' counsel Christopher Sharp asking REED to agree to an enlargement of time for answering the interrogatories that the Court ordered Plaintiffs to answer by June 13, 2005. (Exhibit B)
NOT TIMELY FILED
2. On June 14, 2005, REED received a fax of Plaintiffs' above motion (Exhibit C). The fax contains a declaration of service that falsely states that the motion was served on REED on June 13, 2005. The court can see the accurate date on Plaintiffs' own “Facsimile cover sheet” and where the correct date is printed on the top of each sheet by REED's fax machine. Accordingly, the motion was not timely filed and should be denied as a result.
3. REED sent a responding email to Sharp (Exhibit D).
PLAINTIFFS OFFER NO NEW INFORMATION NOT KNOWN TO THE COURT WHEN IT ISSUED THE ORDER IT IS NOW BEING ASKED TO CHANGE
4. Plaintiffs' motion for this enlargement tells the Court nothing relevant that it did not already know when it issued the order on May 23, 2005 that Plaintiffs must answer Defendant's interrogatories within 20 days, namely, by June 13, 2005.
5. The motion says in ¶3 that the number of interrogatories is so great that they cannot be answered in 20 days. The Court knew exactly how many interrogatories Plaintiffs were required to answer when it issued the order. Plaintiffs have known how many interrogatories they were required to answer since at least May 23, 2005 and they have had the interrogatories for many months. Furthermore, the number was known by Plaintiffs even before that in a general sense because the number-25 to each Plaintiff- is prescribed in the Federal Rule of Civil Procedure 33(a).
MOOT
6. The Court issued its May 23, 2005 order in response to Plaintiffs' failed motion for a protective order. The matter is therefore moot.
ROTHSTEIN ILLNESS NOT NEW
7. The motion says at ¶4 that a medical matter that limits Plaintiffs' counsel Scott Rothstein's availability “arose on June 6, 2005…” That is false. Mr. Rothstein's medical matter arose at least as early as May 9, 2005 when the Plaintiffs used it to obtain a continuance of the May 13, 2005 evidentiary hearing to June 15, 2005. They also used Mr. Rothstein's illness to obtain another continuance of the June 15, 2005 hearing for at least a month. The present motion is the third attempt by the Plaintiffs to use Mr. Rothstein's illness to delay this litigation. It has now been five weeks since Mr. Rothstein's illness was first brought to the Court's attention. Clearly, Mr. Rothstein should have been taken off the case no later than May 9, 2004. Apparently, Plaintiffs plan to continue using Mr. Rothstein's illness as a basis for seeking delays until the Court orders them to take him off the case or until the Court stops granting continuances based on Mr. Rothstein's illness.
8. Mr. Rothstein has not seemed to be involved in the case much to REED in the last two years. Virtually all court documents filed during that time were signed by Christina Kitterman. Virtually all correspondence with Plaintiffs has been with Ms. Kitterman. Mr. Rothstein's role in the last two years has primarily been to send REED the occasional taunting email or leave the occasional taunting phone message when the Plaintiffs won a motion. Other than these cameo appearances as WHITNEY's “bad cop,” Rothstein has not been heard from.
WHITNEY's LEAVING THE COUNTRY IS A SELF-INFLICTED PROBLEM NOT GOOD CAUSE
9. ¶5 of the present motion says that Plaintiff RUSS WHITNEY (WHITNEY) responded to the postponement of the June 15, 2005 evidentiary hearing by leaving the country. He had no right to do that. It's true that the Court's decision to postpone the June 15, 2005 evidentiary hearing released WHITNEY from his obligation to appear at the hearing. REED had subpoenaed WHITNEY to appear at that hearing.
10. However, the Court's decision to postpone the June 15, 2005 evidentiary hearing did NOT release WHITNEY from his obligation to answer REED's interrogatories by June 13, 2005. If WHITNEY's absence from the country prevents Plaintiffs from complying with the Court's May 23, 2005 order regarding answering interrogatories, as the Plaintiffs now argue, WHITNEY had no business leaving the country. He should have stayed home until he completed the obligations imposed upon him by the Court's May 23, 2005 order on answering interrogatories.
WHITNEY WAS NOT INCOMMUNICADO
11. Furthermore, in 2005, even leaving the country does not prevent one from using telephones, faxes, and international couriers to comply with court orders regarding to interrogatories.
NO SPECIFICS AS TO WHY CITED FACTS PREVENTED TIMELY ANSWERS
12. Plaintiffs say they were unable to comply with the Court's order on answering REED's interrogatories because of their number, Rothstein's illness, and WHITNEY's self-inflicted travel, but they give no specifics as to why any of these three facts prevented them from answering interrogatories that they have had in their possession for many months. In fact, the number of interrogatories is normal, the firm has 22 other lawyers, some of which who have been more involved in the case than Scott Rothstein, and WHITNEY could have either stayed home or worked on the interrogatories before he left or used readily available international communications to work on them while traveling.
GRANTING WOULD PREJUDICE REED; NO PREJUDICE TO PLAINTIFFS
13. In view of the fact that they have had REED's Interrogatories for many months, there is no prejudice to Plaintiffs from having to comply with the Court's order. Indeed, there is prejudice to REED as a result of this motion having been filed, let alone granted. REED has answered a number of Plaintiffs' interrogatories on his own initiative as well as answering on a timely basis without any enlargements all those that the Court ordered him to answer. REED has also provided Plaintiffs with more than 1,000 documents in response to their documents requests. To date, REED has never received a single answer to an interrogatory nor a single document. This in spite of the fact that many of the interrogatories propounded to WHITNEY and his corporation can be answered quite easily, like, have you ever been divorced or how many children have you fathered or what date did you commit the robbery you went to prison for.
14. This motion, like this entire litigation has been filed in bad faith. WHITNEY cannot answer the interrogatories he has been ordered to answer without risking imprisonment, adverse regulatory action, loss of his corporate CEO position, and loss of this case. He will never answer them. However, he will try to delay as long as possible the Court finding out that he has no intention of answering the interrogatories.
15. If and when the Court stops granting continuances and enlargements pertaining to Plaintiffs answering interrogatories, providing documents, or testifying under oath, the Plaintiffs will withdraw the case to avoid having to provide discovery or give such testimony. The Plaintiffs have been given the benefit of the doubt far longer than their behavior in this case has warranted.
16. This motion should be denied and Plaintiffs should be sanctioned for filing it. Plaintiffs should be ordered to pay REED's expenses of opposing this motion. Since WHINEY is unable to modify his international travel plans appropriately to comply with the Court's orders, he should be ordered to turn in his passport for the duration of the litigation. Plaintiffs should be informed that they have now had ample time to make arrangements to do without Mr. Rothstein's services with regard to this litigation and therefore his illness will no longer be an acceptable reason for delays.
17. Although REED does not now move for sanctions under Rule 11 or dismissal under Local Rule 3.10 for failure to prosecute, REED continues to believe and wishes to be on the record as saying that Plaintiffs' stonewalling on discovery and live testimony in recent months constitutes violations of Rule 11, contempt of court, and failure to prosecute. The Court should consider dismissing the Plaintiffs' case as a result.
MEMORANDUM OF LAW
18. This motion does not meet the requirements of FRCP 6(b). It is filed in bad faith in that it cites no new information other than Whitney's self-inflicted departure from the country as a basis for changing the Court's May 23, 2005 order. If nothing has changed, notably the number of interrogatories or Mr. Rothstein's medical unavailability, since the Court's order, then the Court's order itself should not be changed.
19. Plaintiffs sought a protective order under FRCP 26(c). They lost. They now raise one of the same issues-the “volume and quantity” of the interrogatories-that was rejected as a reason for the protective order. The Court knew about the “volume and quantity” of REED's interrogatories when it ordered them answered by June 13, 2005. The Court also knew of Mr. Rothstein's illness when it ordered Plaintiffs to answer the interrogatories by June 13, 2005. The matters are moot. The Court should pay no attention to WHITNEY's leaving the country because one's own irresponsible or bad faith actions are not good cause for judicial leniency that is prejudicial to one's opponent.
20. F.R.C.P. 1 says the Rules, “…shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” The cumulative effect of all the delays sought by plaintiffs is the exact opposite of the objective stated in Rule 1. The present motion seeking still more delays should be denied for the reasons stated above. The motion was filed in bad faith and offers no good cause for granting it.
Wherefore Defendant moves this court to deny PLAINTIFF'S MOTION TO ENLARGE TIME TO RESPOND TO DEFENDANT'S INTERROGATORIES and to sanction the Plaintiffs as the Court sees fit.
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

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

WHITNEY INFORMATION NETWORK, INC.
and RUSS WHITNEY, an individual,

Plaintiffs, Case No. 2:04-cv-00395-FTM-DNF (LAG)

v.

JOHN T. REED, an individual,

Defendant.
_________________________________________/
DECLARATION OF SERVICE
JOHN T. REED, under penalty of perjury hereby declares:

On June 14, 2005, I served DEFENDANT'S SECOND OPPOSITION TO PLAINTIFF'S MOTION TO ENLARGE TIME TO RESPOND TO DEFENDANT'S INTERROGATORIES AND MEMORANDUM OF LAW IN SUPPORT by Federal Express on Christina Kitterman, 300 Las Olas Place, Suite 860, 300 S.E. Second Street, Fort Lauderdale, FL 33301.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on June 14, 2005.

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

John T. Reed
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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