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John T. Reed’s motion to dismiss Lee County, FLorida lawsuit against John T. Reed 2

21. Plaintiff's basis for claiming this Court has personal jurisdiction over Defendant REED is contained entirely in ¶¶ 3 and 6 of the complaint. ¶3 purports to satisfy some sort of general test, but fails to do so. It says in pertinent part, “…REED, was…doing business in the United States, including, without limitation, Florida.” The phrase “including, without limitation, Florida” does not contain sufficient factual allegations that show the Court that REED's contacts with Florida were not attenuated or that REED's contacts were “…such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.” Complaint ¶3 regarding “doing business” tracks neither statutory nor case language regarding either federal or state long-arm jurisdiction criteria.
NO PHYSICAL INJURY ALLEGED

22. Complaint ¶6(d) attempts to allege that Plaintiff's conduct triggers Florida's long-arm statute subsection 48.193 (1)(f). That paragraph of the complaint uses the phrase “…causing harm to Plaintiff in Florida.” However the complaint makes no mention of physical injury to person or property. Such physical injury is the only kind of harm that triggers personal jurisdiction under Fla. Statute 48.193(1)(f). Financial harm, which appears to be the only kind alleged by Plaintiff, does not trigger personal jurisdiction under Fla. Statute 48.193 (1)(f). “Florida plaintiffs' allegations that Virginia savings and loan made misrepresentations during loan commitment negotiations via telephone between Florida and Virginia were insufficient to establish Florida court's personal jurisdiction over savings and loan; plaintiffs failed to establish that savings and loan was "doing business" in Florida, "tortious act" of making fraudulent misrepresentations in Virginia via telephone was not committed in Florida, and subdivision (1)(f) of this section concerning injury within Florida arising out of act or omission occurring outside Florida was inapplicable because subdivision (1)(f) requires physical injury to occur to persons or property within Florida, as distinguished from financial injury.” McLean Financial Corp. v. Winslow Loudermilk Corp., App. 5 Dist., 509 So.2d 1373 (1987). “Mother was not entitled to obtain personal jurisdiction for injury to persons within state resulting from act outside state over nonresident DNA testing facility in action alleging intentional torts including battery, false imprisonment, and emotional distress arising out of DNA testing of son's saliva sample that was obtained without mother's consent, where complaint alleged economic loss after test results were used against her in court proceeding but did not otherwise allege resulting bodily injury or property damage.” Identigene, Inc. v. Goff, App. 2 Dist., 774 So.2d 48 (2000), rehearing denied. “Provision of Florida long-arm statute authorizing personal jurisdiction where injury occurs within Florida as result of act or omission by defendant outside state did not provide basis for personal jurisdiction over corporation and its chief executive officer in stock purchaser's fraud action, where purchaser failed to allege personal injury or property damage in his complaint.” Musiker v. Projectavision, Inc., S.D.Fla.1997, 960 F.Supp. 292

23. Further on subsection (f) of F.S. 48.193. That subsection requires that the Plaintiff allege either “1. The defendant was engaged in solicitation or service activities within this state; or 2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.” The complaint contains no such allegation.
NO TORTIOUS CONDUCT ALLEGED TO HAVE OCCURRED IN FLORIDA

24. Although Plaintiff alleges that it was harmed in Florida, the complaint fails to allege that Defendant REED committed any tortious conduct in Florida as required by Fla. Statute 48.193 (1)b). All contacts between Defendant REED and Defendant YATES were initiated by YATES. “Debtor whose complaint alleged several tort claims arising from foreign corporate creditor's debt collection activities in Florida and from false statements allegedly made by creditor to credit reporting agencies failed to establish that jurisdiction existed under Florida's long-arm statute; although alleged injury occurred in Florida, complaint failed to allege that any tortious conduct occurred there.” Texas Guaranteed Student Loan Corp. v. Ward, App. 2 Dist., 696 So.2d 930 (1997)
INTERNET CASES RELATING TO FLORIDA PERSONAL JURISDICTION OVER NONRESIDENTS

25. “Evidence that nonresident corporate defendant was providing store coupons on its Internet site, which could be redeemed in Florida by those pharmacies and grocery stores that redeemed "competitor" coupons, was insufficient to constitute operation of business in Florida, within meaning of that state's long-arm statute; coupons were intended only for redemption in defendant's stores, and defendant did not benefit from redemption by Florida stores.” Response Reward Systems, L.C. v. Meijer, Inc., M.D.Fla.2002, 189 F.Supp.2d 1332, “Causes of action for negligent misrepresentation, false advertising, and breach of express warranty brought by catamaran purchaser against catamaran broker did not arise out of electronic communications between purchaser and broker, and thus catamaran broker's alleged conduct of maintaining an informational Internet website and exchanging electronic communications with purchaser while broker resided in Florida did not give rise to specific personal jurisdiction pursuant to Florida's long-arm statute; the action arose out of an agreement between purchaser and a South African yacht builder that the broker was not a party to, and the electronic communications with broker were limited to recommending that purchaser visit the builder's facility in South Africa.” Miller v. Berman, M.D.Fla.2003, 289 F.Supp.2d 1327, “Michigan-based Internet site operator's selling subscriptions to unknown, relatively small number of Florida residents, without more, did not constitute carrying on business in Florida under state's long-arm statute, nor did it constitute commission of tortious act in Florida under same statute, precluding exercise of personal jurisdiction over operator in diversity defamation action.” Alternate Energy Corp. v. Redstone, S.D.Fla.2004, 328 F.Supp.2d 1379.
SOCIAL POLICY CONSIDERATIONS

26. It is in the interest of the citizens of Florida that they have the fullest access to the discourse, products, and services available on the World Wide Web. Interpreting Florida's long-arm statute broadly to extend personal jurisdiction to Web sites operated by one or two persons will likely result in those sites avoiding contact with Floridians. The harm done to Floridians by such a policy would outweigh its benefits.
POSSIBILITY OF PERSONAL JURISDICTION NOT ENOUGH

27. The mere possibility that the Court may have personal jurisdiction is not enough to survive a motion to dismiss. “A plaintiff seeking to subject a nonresident defendant to jurisdiction of court via long-arm statute did not satisfy this section's requirements by alleging facts which showed only a possibility of jurisdiction; in face of a meritorious challenge by way of a motion to quash service of process and abate for lack of personal jurisdiction, supported by affidavits, plaintiff had to prove jurisdiction over person by opposing affidavits, testimony or documents.” Sims v. Sutton, App. 3 Dist., 451 So.2d 931 (1984). Life Laboratories, Inc. v. Valdes, App. 3 Dist., 387 So.2d 1009 (1980); Viking Acoustical Corp. v. Monco Sales Corp., App. 5 Dist., 767 So.2d 632 (2000).
MIAMI FEDERAL JUDGE WAS 'INCLINED' TO TRANSFER CASE FOR LACK OF PERSONAL JURISDICTION

28. WIN filed a suit for defamation per se against REED in U.S. District Court in Miami (Case # 03-60597 CIV-SEITZ/BANDSTRA). Presiding Judge Patricia M. Seitz issued an order to show cause (Exhibit A) why the case should not be transferred to the Northern District of California (REED's home district) because of lack of personal jurisdiction analyzing the law and saying, “The Court is inclined to transfer this action to the United States District Court for the Northern District of California where the Defendant resides.” WIN responded to the order to show cause by telling Judge Seitz that there was a lower-numbered case between the same parties pending in the Fort Lauderdale federal court. REED had been trying to consolidate the two cases for some time, but WIN refused until the order to show cause. Judge Seitz then transferred the case to that court and the Fort Lauderdale judge ignored Judge Seitz' order to show cause. No decision was ever made with regard to the issue of personal jurisdiction in that case. REED, a pro se, was unable to raise the issue of personal jurisdiction independent of Judge Seitz's sua sponte order because REED failed to include personal jurisdiction in his various motions to dismiss for failure to state a claim, thereby waiving the lack-of-personal-jurisdiction defense. Defendant REED is aware that such an undecided order to show cause in the Southern District of Florida is not binding upon this Court. However, the issue was the same-federal minimum contacts to establish personal jurisdiction-and Judge Seitz's preliminary conclusion is noteworthy and instructive in that it involved the same Plaintiff and Defendant as this case.
FLORIDA 'LONG-ARM' STATUTE

29. If the Court believes that Plaintiff has passed the federal “minimum contacts” test, it must then decide whether Plaintiff has also passed the tests contained in the Florida “Long-Arm” Statute (Florida Statute 48.193). In determining whether long-arm jurisdiction exists, a court must first consider whether the complaint alleges a basis for jurisdiction under long-arm statute. Vencap, Inc. v. McDonald Sec. Corp., App. 2 Dist., 827 So.2d 1061 (2002).

30. The Florida “Long-Arm” statute (F.S. 48.193) says in pertinent part:
“(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
(b) Committing a tortious act within this state.
(f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either:
1. The defendant was engaged in solicitation or service activities within this state; or
2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.
(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.”

31. The assertion in Plaintiff's complaint ¶6(c) relating to the Florida Uniform Trade Secrets Act does not state a basis for personal jurisdiction that is contained in Florida Statute 48.193. Complaint ¶6(c) seems to imply that there is such a thing as a “Florida question” that would be analogous to a federal question and thereby confer jurisdiction on a Florida court. There is no such basis for Florida jurisdiction.
32. Nowhere in the complaint does Plaintiff allege facts to support its ¶6(b) allegation that Defendant REED “Committed a tort in this state.” REED says he never visited Florida during the period material to this action (Affidavit ¶13). If REED was never in the state of Florida at the material times, he could not have committed a tort within the state of Florida.

33. The closest Plaintiff comes to stating facts that might constitute tortious interference is complaint ¶26 which says, “Defendant REED is fully aware of Plaintiff's contractual relationship with its former employee, Defendant, Yates…” By using the present tense verb “is,” Plaintiff speaks only of the copy of the WIN-YATES contract that was attached to the complaint. That fails to allege that Defendant REED was “fully aware” of the contract before the filing of the complaint. Since knowledge of the relationship is an essential element of tortious interference with a business relationship, Plaintiff's failure to allege that Defendant REED knew of the relationship at the unspecified time in the past when he allegedly tortiously interfered, the complaint fails to sufficiently allege personal jurisdiction under F.S. 48.193(1)(b) (Committing a tortious act within this state).
NO INTERFERENCE POSSIBLE AFTER TERMINATION

34. Plaintiff states in complaint ¶19 that they terminated their relationship with Defendant Yates “on or about March 25, 2004.” Defendant REED states in his Affidavit ¶8 that he never heard of Robert Yates until May 4, 2004. For Plaintiff to allege that Defendant REED interfered with its relationship with Robert Yates after Plaintiff itself terminated that relationship is akin to a prosecutor accusing a defendant of murder for shooting a corpse. Plaintiff's falilure to allege that Defendant REED interfered with its relationship with YATES while that relationship still existed, coupled with REED's affidavit denial that he never heard of YATES while YATES was in a business relationship with WIN, fails to sufficiently allege personal jurisdiction under the long-arm statute F.S. 48.193(1)(b) (Committing a tortious act within this state).

35. At the end of complaint ¶26, Plaintiff again employs the present tense to allege conduct that the law says must have occurred before the filing of the complaint. That portion of complaint ¶26 alleges that, “[REED] is seeking to interfere with Plaintiff's confidentiality contract with YATES.” [Emphasis added] Such wording fails to adequately allege that Defendant REED has committed a tortious act within Florida prior to the filing of the complaint as required by the long-arm statute F.S. 48.193(1)(b).

36. Complaint ¶27 ends with another present tense allegation, as well as a future tense allegation, namely, that REED “…is using or intending to use Plaintiff's trade secrets for his own personal gain or economic benefit.” [Emphasis added] The tense required in a complaint is past, not present or future. As such, the complaint fails to sufficiently allege that Defendant REED has committed a tortious act within Florida prior to the filing of the complaint as required by the long-arm statute F.S. 48.193(1)(b).

37. Complaint ¶50 says that, “Defendant REED, knows or has reason to know that Defendant YATES acquired Plaintiff's trade secrets through improper means…” In fact, REED denies that explicitly in his Affidavit ¶59 and the complaint alleges no facts with regard to when REED acquired such knowledge, what secrets they refer to, or how REED came to know that YATES acquired such secrets through improper means. Again, Plaintiff states its allegations in the present tense: “…knows or has reason to know…” The use of the present tense means that REED will have such knowledge after he reads this complaint. If REED did not acquire such knowledge until he read the complaint, the complaint does not allege any wrongdoing by REED and therefore fails to sufficiently allege that Defendant REED has committed a tortious act within Florida prior to the filing of the complaint as required by the long-arm statute F.S. 48.193(1)(b).

38. Complaint ¶¶51 and 52 essentially repeat complaint ¶27 and therefore fail, for the same reasons described above, to sufficiently allege that Defendant REED has committed a tortious act within Florida prior to the filing of the complaint as required by the long-arm statute F.S. 48.193(1)(b).

39. Complaint ¶55 says, “Defendant, REED, was aware of the contractual relationship Plaintiff had with Defendant, Yates.” REED states in his Affidavit ¶58 that he did not know the contents of said contract until he received a copy of it attached to the complaint. Conspicuous by their absence in the complaint are factual allegations as to when, where, and how REED acquired such awareness. The complaint therefore fails to sufficiently allege that Defendant REED has committed a tortious act within Florida prior to the filing of the complaint as required by the long-arm statute F.S. 48.193(1)(b).

40. Complaint ¶56 says, “Despite this knowledge, Defendant [REED] intentionally, and without justification and with malice, interfered with Plaintiff's contractual relationship with its former employee by causing Defendant YATES to violate his Confidentiality Agreement with Plaintiff.” As stated in REED's Affidavit ¶58, REED did not know the contents of the WIN-YATES agreements until he received a copy of them attached to the complaint. As stated in REED's Affidavit ¶8, REED never heard of YATES until YATES initiated contact with REED by sending REED an unsolicited email. As the Court can see in Exhibits A through R of REED's affidavit, the actual entire body of communication between REED and YATES, REED did not cause YATES to do anything.

41. YATES contacted REED to request an interview for a book YATES claimed to be writing. REED declined to grant the interview. As the Court can see from the exhibits, YATES did not disclose any confidential information to REED. As the Court can also see, YATES claimed that before acting, he was consulting legal counsel with regard to what he was permitted to do in light of his agreements and duties as a paralegal. The correspondence between REED and YATES shows that YATES took no action whatsoever other than chatting with REED and relating facts that were already public information. REED's email comments to YATES were entirely about how to research the pertinent laws, not how to break them.
EMPLOYMENT CONTRACT

42. As REED's Affidavit Exhibits A through R show, REED only asked YATES for one thing: a copy of his employment contract with WIN. The fact that REED asked for that is further evidence that he did not know its contents at the time. The fact that YATES did not send REED a copy of the contract (Affidavit ¶5) is proof that REED did not cause YATES to do anything.

43. REED's request for a copy of the contract was not improper. REED had heard many times about WIN's employment contract and had publicly asked at his Web site for someone to send him a copy. No one did. The contract is not proprietary. By definition, it must be shown to non-employees who are prospective employees. Such prospective employees are then free to withdraw their application or decline WIN's job offer after having seen the agreement. Furthermore, WIN and WHITNEY are notoriously litigious and have sued many former associates. In 2004, WIN tried to subpoena REED to give a non-party deposition in their breach-of-contract suit against former associate Glenn Purdy (REED Affidavit 61). By law, the employment contract would have to be attached to the complaint in that and all other breach-of-contract suits filed by WIN against its former employees. So WIN's employment contract is a public document having been shown to hundreds of prospective employees and filed in various courts over a period of years.

44. Furthermore, it was proper and prudent for REED to request a copy of such a contract before further involvement with YATES in order for REED to avoid exactly the sort of illegal actions alleged in the present complaint.

45. Complaint ¶57 states, “As a direct and proximate result of Defendant [REED]'s tortious interference, Plaintiff has suffered and will continue to suffer irreparable damages including, but not limited to, loss of Plaintiff's trade secrets, confidential information, attorney-client privileged communications and work-product information.” As the Court can see in REED's Affidavit Exhibits A through R, YATES provided REED with no “trade secrets, confidential information, attorney-client privileged communications, or work-product information.” Furthermore, the Court can take judicial notice of the fact that “loss of trade secrets, confidential information, attorney-client privileged communications and work-product information” are not damages per se. Rather, they are merely events that may or may not result in Plaintiff suffering damages.