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John T. Reed’s reply to Whitney’s opposition to moving the case from Fort Lauderdale to Fort Myers

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 03-60195-Civ-MARRA/SELTZER

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

JOHN T. REED, an individual,
Defendant.

DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR CHANGE OF VENUE FOR CONVENIENCE OF WITNESSES AND IN THE INTEREST OF JUSTICE UNDER 28 USC §1404(a)
Defendant, John T. Reed, pro se replies to the Plaintiffs’ opposition as follows:
RELEVANCE OF THE COURT’S MARCH 4, 2004 ORDER
1. Plaintiffs allege that the Court’s decision on March 4, 2004 regarding Defendant’s motion for transfer to the Northern District of California for the convenience of witnesses and in the interest of justice also decided this motion. The question before the Court in that motion was whether Fort Lauderdale or San Francisco were more convenient for witnesses. The question now before the Court is different: whether Fort Lauderdale or Fort Myers is more convenient for witnesses and parties in this case and is in the interest of justice. Accordingly, the Plaintiffs’ allegation that Defendant is now asking the Court to reconsider its decision on the Northern California motion is simply wrong.
STALLING
2. Plaintiffs allege that Defendant’s filing of this motion to transfer the case to Fort Myers is a stalling tactic. Rather, it is plaintiffs who have multiplied proceedings causing endless delays. For example, Plaintiffs could have and should have amended their original Fort Myers complaint instead of filing repetitive suits in Broward County and Miami. Had they done so, the trial, which was scheduled for 11/30/03 in the Fort Myers Case Management Scheduling Order, would have already been completed.
3. A business associate of Plaintiffs told Defendant that he was at a meeting where Whitney executives were asked what they were doing about Reed’s Website criticism of Whitney. They reportedly answered, “Reed doesn’t have any money. We’re going to wear him down.”
4. Given the fact that Plaintiffs gross in excess of $60 million a year according to their filings with the Securities and Exchange Commission, and Defendant is a one-man-shop, home-office based business, wearing Defendant Reed down is a plausible, if illegal, litigation strategy. Plaintiffs’ repetitive lawsuits followed by withdrawals of previously filed suits and motions are consistent with the wear-him-down strategy. Defendant has done nothing to stall the case and recognizes that such stalling would be adverse to his interests and play into the hands of his better-funded corporate opponent.
5. In the present motion, Defendant stated that he was not asking for a delay in complying with the Court’s order of March 4, 2004 with regard to answering the complaint or submitting a case management report. In the interim, Defendant has, indeed, answered the complaint on schedule as ordered by the Court and has agreed with the case-management schedule drawn up by Plaintiffs. So there has not been and will not be any delay in this case as a result of the Court’s granting Defendant’s motion to transfer to Fort Myers.
PLAINTIFFS’ CHOICE OF VENUE
6. Plaintiffs allege that their choice of venue should be honored by the Court. Defendant’s motion to transfer the case to Fort Myers DOES honor their original choice of venue. This litigation started when Plaintiffs filed a suit against Defendant in the Fort Myers Division of the Middle District of Florida on June 25, 2002. That complaint contained the usual pronouncements regarding why Fort Myers was the one true venue for the case.
7. This litigation has been in four different courts so far:
• Fort Myers Division of the Middle District of Florida
• Seventeenth Judicial District Court in and for Broward County
• Miami Division of the Southern District of Florida
• Fort Lauderdale Division of the Southern District of Florida
8. Of the four venues, the present Fort Lauderdale venue is the ONLY one that was NOT chosen by Plaintiffs. This case is in the Fort Lauderdale Division solely because Defendant filed a notice of removal in the Southern District of Florida as required by the Federal Rules of Civil Procedure and the Miami headquarters of that District apparently assigned it to the Fort Lauderdale Division pursuant to internal court-assignment procedures. Furthermore, Plaintiffs fought tooth and nail to remand the case out of Fort Lauderdale federal court for many months.
9. The vagabond nature of Plaintiffs’ filings suggest that any Florida venue will do. Fort Lauderdale is not Plaintiffs’ forum choice. It is only their choice of the moment. There is no precedent for honoring the forum choice of a plaintiff that cannot make up its mind. Plaintiffs have now told four different Florida state or federal courts that each was the correct venue for this case.
10. “…the plaintiff’s choice of forum is accorded less weight if it is not the plaintiff’s residence.” Moore’s Federal Practice ¶111.13[1][c][ii] citing Tranor v. Brown, 913 F. Supp. 388 “…when the plaintiff has chosen to bring suit in a district that is not his ‘home turf,’ that the chosen forum is convenient to plaintiff is not presumed.” Moore’s Federal Practice ¶111.13[1][c][ii] citing Burstein v. Applied Extrusion Technologies, Inc., 829 F. Supp. 106 (D. Del. 1992) “…if the operative events did not take place in that district, many courts assign the plaintiff’s choice of forum less weight.” Moore’s Federal Practice ¶111.13[1][c][iii] citing *beep* v. U.S., 862 F. Supp. 91 (D. Md. 1994) “When the chosen forum is neither the plaintiff’s residence nor the place where the operative events occurred, the court is likely to override the plaintiff’s choice.” Moore’s Federal Practice ¶111.13[1][c][iti] citing Tranor v. Brown, 913 F. Supp. 388 and Jewelmasters, Inc. v. May Dept. Stores Co., 840 F. Supp. 893 (S.D. Fla. 1993) “When the defendant seeks transfer to the district in which plaintiff resides, the plaintiff’s claim that the district is inconvenient is likely to be disregarded.” Moore’s Federal Practice ¶111.13[1][e][i]
DEFENDANT’S POSITION HAS BEEN CONSISTENT
10. Defendant has said since day one of the Broward County suit that venue in Fort Lauderdale was improper and inconvenient for all concerned. Plaintiffs are located in Cape Coral, Florida, the town adjacent to Fort Myers, where the Fort Myers Federal Court is located. Defendant promptly filed a motion to transfer the Fort Lauderdale case to Fort Myers back when the original Fort Myers case was still active.
11. Moore’s Federal Practice ¶111.17[1] says, “If the defendant is or should be aware of circumstances supporting a change of venue on convenience grounds from the start, then the motion should be made before or with the defendant’s answer.” citing Vaz Borrelho v. Keydril Co., 696 F 2d 379 (5th Cir. 1983) After this Court denied Defendant’s motion to transfer the case to the Northern District of California for the convenience of witnesses and in the interest of justice, Defendant promptly filed this motion to transfer the case to the Fort Myers Division. Because of Defendant’s promptness and the early stage of the case—answers and counterclaims having not yet been filed by Defendant—Plaintiffs will not be prejudiced by a transfer to Fort Myers at this time.
CONVENIENCE OF WITNESSES
12. Conspicuous by its absence in Plaintiffs’ opposition is any discussion of the convenience of witnesses which is the basis upon which the Court must decide this motion. In their recent opposition to Defendant’s motion to transfer to Northern California, Plaintiffs spoke at length of the dozens of Florida witnesses they would call. Now that Defendant moves to transfer the case to the Florida federal court where Plaintiffs’ residences, headquarters, and principal place of business are, Plaintiffs have fallen silent on the subject of location of witnesses. In fact, the witnesses so prominent in their opposition to moving the case to Northern California are in the Fort Myers area. To date, Plaintiffs have identified NO witness in the Fort Lauderdale area.
INTEREST OF JUSTICE
13. 28 U.S.C. 1404(a) provides for a change of venue in the interest of justice. Here that interest clearly favors a transfer to the Middle District of Florida. Plaintiffs’ first case against Defendant was started there. These two cases were started later—by different counsel—but are no more than variations on the same claims originally asserted in the Fort Myers actions.
THE COURT’S PRIOR DECISION
14. Plaintiffs argue the Court has already decided the venue question. All the Court did last time was decide between California and Florida. The Court decided that Florida was the proper state but did not address which district in Florida should handles the case. While the Southern District of Florida is more convenient for Fort Myers-based witnesses than San Francisco, Fort Myers is more convenient for Fort Myers witnesses than Fort Lauderdale. Plaintiffs’ successful opposition to Defendant’s motion for transfer to San Francisco was an argument for venue in Florida, not Fort Lauderdale. Virtually all of Plaintiffs’ arguments in opposition to that motion now support this motion to transfer to Fort Myers.
EARLIER CHANGE-OF-VENUE MOTION IS NO WAIVER
15. Defendant moved the Court to amend his motion to dismiss the Miami case to add lack of personal jurisdiction as a reason for dismissal. Plaintiffs successfully argued that such an amendment was barred by F.R.C.P. 12(h)(1) which said that such a defense was waived if not asserted along with the motion to dismiss under F.R.C.P. 12. But the present motion under 28 USC 1404(a) is not governed by any rule like F.R.C.P. 12(h)(1).
THE LAW-OF-THE-CASE DOCTRINE
16. Having failed to find a waiver rule that applies to a second 28 U.S.C. 1404(a) motion, and having no facts on their side, Plaintiffs grasp at procedural straws, i.e., the Law-of-the-Case Doctrine and the “multiple apple biting doctrine.” The Law-of-the-Case Doctrine applies to appellate court decisions that remand a case to the trial court after deciding some issues of law. Some Law-of-the-Case Doctrine cases involved dueling same-level judges who bounced cases back and forth between them, like the Christianson v. Colt Industries Operating Corp. case cited by Plaintiffs. In Plaintiffs’ Hayman Cash Register cite, the transferee trial judge overturned a personal-jurisdiction decision previously made by the transferor trial judge. The present motion bears no resemblance to the cases cited by Plaintiffs.
17. The Law-of-the-Case Doctrine applies to determinations of questions of law. The Christianson v. Colt Industries quote in Plaintiffs’ opposition memorandum of law contains the phrase, “when a court decides upon a rule of law…” [Emphasis added] The present motion regarding convenience of witnesses is not a question of law. It is a question of fact. As such, it does not come under the Law-of-the-Case Doctrine.
18. The Law-of-the-Case Doctrine relates to the reconsideration of questions where the facts remain the same. In the venue motion already decided by the Court, the Court weighed the inconvenience of Florida witnesses traveling to California. The present motion involves no such facts. Rather, it asks the Court to weigh the inconvenience of Fort Myers witnesses traveling to Fort Lauderdale versus the inconvenience of Fort Myers witnesses remaining in Fort Myers. Since the facts the Court is now being asked to compare and the relief sought by Defendant are different from what the Court considered in the previous motion, the Law-of-the-Case Doctrine does not apply.
MULTIPLE ‘APPLE BITING’
19. Plaintiffs accuse Defendant of “…an improper attempt to seek a second bite at the apple…” Defendant can find no statutory ban on moving for change of venue to Fort Myers for the convenience of witnesses and in the interest of justice after having unsuccessfully moved on similar grounds for a change of venue to San Francisco. Nor can Defendant find any case law that bans or even discourages the present motion.
20. As with Plaintiffs’ invocation of the Law-of-the-Case Doctrine, the “second bite of the apple” “doctrine,” such as it is, does not apply to this motion vis a vis the prior change-of-venue motion because this motion has different facts—witnesses in Fort Myers not in San Francisco—and seeks different relief—transfer to Fort Myers, not to San Francisco. If Defendant’s motion to change the venue to San Francisco was a first “bite of the apple,” Defendant’s motion to change the venue to Fort Myers is a first “bite of the pear.” The “second bite of the apple” argument would only be applicable if Defendant were seeking another convenience-of-witnesses-based move to San Francisco.
21. Plaintiffs’ conduct in this case suggests that they should not be permitted to invoke the “second bite of the apple doctrine.” Plaintiffs engaged in impermissible multiple “apple biting” when they refiled the present tortious-interference case in Broward County with the same parties and case facts as their previously filed and later dismissed libel case in Fort Myers.
NO NEED TO PROVE PREVIOUS ORDER WAS ‘CLEARLY ERRONEOUS’
22. Plaintiffs claim this the Court should deny this motion because Defendant had to prove that the Court’s March 4, 2004, order was “clearly erroneous” and that Defendant has failed to do so. Defendant need do no such thing to prevail in this motion. The Court’s March 4, 2004, order is irrelevant to the present motion. The “clearly erroneous” criterion, like the Law-of-the-Case Doctrine, applies to appellate procedure.
NO NEED TO PROVE THE PREVIOUS ORDER WAS ‘MANIFESTLY UNJUST’
23. Plaintiffs also claim that Defendant must prove that not moving the case to Fort Myers would work a “manifest injustice” to Defendant. Defendant need prove no such thing. 28 U.S.C. 1404(a) requires that movant show only a net improvement in witness convenience and that the case could have been brought in Fort Myers to begin with. There is no requirement in 28 U.S.C. 1404(a) that movant prove “manifest injustice.”
24. If there were such a requirement, it would be an easy burden for Defendant to meet in this motion because there are many witnesses and documents in Fort Myers and none in Fort Lauderdale. Making Defendant travel to a place that has no connection with either party or with the case is manifestly unjust.
PLAINTIFFS’ CHANGE OF HEART REGARDING FORT MYERS
25. Plaintiffs’s opposition to this motion contains no denial of Defendant’s statement that they previously expressed no objection moving the Fort Lauderdale case to Fort Myers. Now they fight fiercely against such a transfer. Plaintiffs’ radical switch from opposing venue in the Fort Lauderdale federal court during their remand period to ambivalence after withdrawal of the remand motion to their current fierce opposition to leaving Fort Lauderdale begs the question, “Why the change of heart?”
29. The Fort Myers and Miami Divisions issued a number of orders in this litigation. Plaintiffs won some and lost some in those courts. In the Fort Lauderdale court, however, plaintiffs have won every single opposed motion. Apparently, Plaintiffs’ filing suit in three different courts was, at least in part, a judge shopping effort.
30. When the Fort Myers court gave Defendant a partial victory by ordering a hearing in response to Defendant’s motion to dismiss for failure to prosecute, Plaintiffs immediately withdrew their suit from that venue.
31. Similarly, they were happy with the Miami Division venue until the Honorable Patricia A. Seitz issued an order to show cause why the case should not be transferred to the Northern District of California. Then they were suddenly in favor of the consolidation for which Defendant had been arguing for months.
32. To allow such judge shopping is unjust and wasteful of scarce judicial resources as well as needlessly increasing Defendant’s litigation costs.
Wherefore, Defendant requests this his motion to change venue for the convenience of witnesses and in the interest of justice be granted.

Respectfully submitted,

April 1, 2004 ___________________________
John T. Reed, Pro Se
Defendant
342 Bryan Drive
Alamo, CA 94507
Telephone: 925-820-6292
Fax: 925-820-1259
email: johnreed@johntreed.com
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Copyright 2004 by John T. Reed
Last update 5/12/04
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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