Real Estate Topics Forum :: View topic - John T. Reed’s motion dismiss Lee County, FLorida lawsuit 3

Guest

John T. Reed’s motion to dismiss Lee County, FLorida lawsuit against John T. Reed 3

46. A complaint must contain words to the effect that, “On [date] Defendant [did action(s) which match the essential elements of the tort alleged].” [e.g., Form 1.951 in the Florida Rules of Civil Procedure] Plaintiff in this cases dances around such a statement, but never makes it. 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).
NO HARM TO PLAINTIFF

47. Plaintiff could have and should have brought, and still can bring, these causes of action against Defendant REED by amending the complaint in pending litigation in the U.S. District Court for Middle District of Florida (Fort Myers Division) ([Case # 2:04-CV-395-FTM-33DNF (LAG)]. That court would have jurisdiction on diversity grounds because the parties live in different states and the law of the case is that the threshold amount in dispute of $75,000 has been exceeded by the causes of action already filed. For the purposes of determining whether diversity jurisdiction applies, all causes of action between the same parties are aggregated. Bullard v. City of Cisco, 54 S.Ct. 177, 1933

48. “Due process clause prohibited federal district court sitting in Florida from exercising personal jurisdiction over nonresident defendants in alleged rape victim's action alleging intentional infliction of emotional distress, defamation, invasion of right to privacy, abuse of process, and violation of Fair Credit Reporting Act; defendants' alleged contacts with Florida, involving telephone calls, letters, and facsimile, were insufficient to meet standard of traditional notions of fair play and substantial justice, Florida did not have special interest in adjudicating dispute, and declining to exercise jurisdiction would not harm victim's interests, as she could address allegations in case currently pending in another state.” Norris v. Davis, S.D.Fla.1997, 958 F.Supp. 606. “There were insufficient contacts with Florida to permit exercise of personal jurisdiction over nonresident defendants, considering that defendants never engaged in any business related activity in Florida, and there was no evidence to show affirmative tortious activity within Florida; moreover, defendants would be greatly burdened if they were made to travel to Florida to defend action, and Florida had no special interest in adjudicating dispute; finally, declining to exercise jurisdiction would not harm plaintiff's interests as he could take action in New York.” Kelly v. Kelly, M.D.Fla.1995, 911 F.Supp. 518. Moving these causes of action to the Middle District would also serve the interests of judicial economy and efficiency.
BURDEN ON DEFENDANT

49. “In determining whether assertion of personal jurisdiction over nonresident defendant comports with judicial notions of fair play and substantial justice, factors to consider include:
o burden on defendant in defending lawsuit
o forum state's interest in adjudicating the dispute
o plaintiff's interest in obtaining convenient and effective relief
o interstate judicial system's interest in obtaining the most efficient resolution of controversies
o shared interest of the states in furthering fundamental substantive social policies.” Cronin v. Washington Nat. Ins. Co., C.A.11 (Fla.)1993, 980 F.2d 663 “In determining whether assertion of personal jurisdiction over nonresident defendant will comport with fair play and substantial justice, factors to be considered include burden on party defending lawsuit in forum state, forum state's interest in adjudicating dispute, complainant's interest in obtaining convenient and effective relief, interstate judicial system's interest in obtaining most efficient resolution of controversy, and shared interest of states in furthering fundamental substantive social policies.” Black v. Bryant, M.D.Fla.1995, 905 F.Supp. 1046, Resolution Trust Corp. v. Pharaon, S.D.Fla.1996, 915 F.Supp. 351.

50. As stated in REED's Affidavit ¶18, he “…would be greatly burdened by having to defend this action in Lee County, Florida court because of the time consumption, cost of travel between California and Florida, disruption of [his] one-man business, and need to research Florida law without having access to Florida law libraries or California law libraries that have materials for researching Florida case law.” The true purpose of this case, as well as the three previously filed against Defendant REED in Fort Myers Federal Court, Fort Lauderdale state circuit court, and Miami federal court is to harass and intimidate Defendant REED and to increase his costs of litigation. That is why this case is in Lee County Court rather than being added to the ongoing Fort Myers federal suit. The Court has discretion to take such burdens on Defendant into consideration and should do so in this case.
COMPLAINANT'S INTEREST IN OBTAINING CONVENIENT AND EFFECTIVE RELIEF

51. Plaintiff is already suing Defendant REED in Fort Myers federal court. That court is both convenient to Plaintiff's Cape Coral offices and effective at hearing the causes of action alleged against REED in this complaint.
FAILURE TO STATE A CAUSE OF ACTION GENERALLY

52. In deciding a motion to dismiss for failure to state a cause of action under Florida Rule of Civil Procedure 1.140 (b)(6), the Court is to assume that all facts pleaded are true and the Court may consider no evidence but the complaint itself. Accordingly, the Affidavit of Defendant REED attached to this motion pertains only to the motion to dismiss for lack of personal jurisdiction, not to the motion to dismiss for failure to state a cause of action.

53. In this case, the Plaintiff claims two causes of action against Defendant REED:
o tortious interference with a business relationship
o violation of Florida's Uniform Trade Secrets Act

54. In order to survive a motion to dismiss for failure to state a cause of action, the complaint must allege each of the essential elements of the violations of law in question. “A cause of action must exist and be complete before an action can be commenced.” (Orlando Sports Stadium v. Sentinel Star Company, 316 So.2d 607) This complaint fails to do that with regard to both causes of action.
FAILURE TO STATE A CAUSE OF ACTION WITH REGARD TO TORTIOUS-INTERFERENCE-WITH-A-BUSINESS-RELATIONSHIP CAUSE

55. With regard to the tortious interference with a business relationship cause of action, the complaint discloses a fact that clearly defeats the claim and reveals that Plaintiff is entitled to no relief under any set of facts that could be proved. [Jackson Grain Co. v. Kemp, App. 2 Dist., 177 So.2d 513 (1965)] At Complaint ¶19, Plaintiff states that it terminated Defendant YATES' employment on March 25, 2004. The Complaint does not allege that Defendant REED had any contact with Defendant YATES before March 25, 2004 and Defendant REED could not have affected Defendant YATES' relationship with Plaintiff after that date because there no longer was any relationship.

56. "The elements of tortious interference with a contract or business relationship are:
(1) the existence of a business relationship between the plaintiff and a third person, not necessarily evidenced by an enforceable contract, under which the plaintiff has legal rights;
(2) the defendant's knowledge of the relationship;
(3) an intentional and unjustified interference with the relationship by the defendant which induces or otherwise causes the third person not to perform; and
(4) damage to the plaintiff resulting from the third person's failure to perform." The action of the reporters in soliciting proprietary information was not the kind of improper behavior that could support this tort; it was not designed to terminate ongoing relationships. Furthermore, the reporters' conduct is protected by the Constitution.” Seminole Tribe of Florida v. Times Publishing Company, Inc., - So.2d - (2001 WL 273828, Dist. Ct. App., Fla., 2001)

57. The complaint does not allege the existence of a business relationship. Rather, it states that the business relationship between Plaintiff and Defendant YATES ended on March 25, 2004. It does not allege that Defendant REED had anything to do with that termination or that REED had any interaction with the relationship at all prior to its being terminated.

58. The complaint fails to allege damage to Plaintiff, a required essential element of the common law of tortuous interference. Rather, the complaint merely alleges events that might or might not result in damages.

59. Complaint ¶57 alleges that the facts supporting its tortious interference cause of action include loss of Plaintiff's trade secrets. The complaint also alleges violation of the Florida Uniform Trade Secrets Act in a separate cause of action. “A single wrongful act gives rise to a single cause of action, and various injuries resulting from it are merely items of damage arising from the same wrong.” (Orlando Sports Stadium, Inc. v. Sentinel Star Company, 316 So.2d 607) Plaintiff's use of trade secrets fact to support their tortious interference cause of action is impermissible recycling of a case fact attempting to get two causes of action from one alleged wrong.

60. The state legislature has already decided how such matters are to be adjudicated by enacting its Uniform Trade Secrets Act. Fla. Stat. 688.008 (1) says “…ss. 688.001-688.009 displace conflicting tort…and other law of this state providing civil remedies for misappropriation of a trade secret.” A fact pattern that fits the Trade Secrets Act cannot be characterized as anything else since that Act was passed. An analogous decision involving libel is instructive. In Morrison v. National Broadcasting Co., (19 N.Y.2d 453), the court said, “We look for the reality, and the essence of the action and not its mere name. A contrary result might very well enable plaintiffs in libel to circumvent the notice requirements of Fla. Stat. 770.01 by the simple expedient of redescribing the libel action to fit a different category of intentional wrong.” Similarly, allowing Plaintiff to get away with redescribing violation of the Trade Secrets Act as tortious interference with a business relationship would enable Plaintiff to avoid meeting the detailed requirements of the Trade Secrets Act.
FAILURE TO STATE A CAUSE OF ACTION WITH REGARD TO UNIFORM TRADE SECRETS ACT CAUSE

61. Complaint ¶27 alleges that REED “…willfully and maliciously misappropriated Plainitff's trade secrets in violation of Florida's Uniform Trade Secrets Act…” This allegation is short on facts. It gives no date when such misappropriation occurred, thereby leaving open the possibility that it was never or so long ago that the pertinent statute of limitations has run out.

62. The complaint neither identifies the trade secret(s) that REED supposedly misappropriated nor how he did so. Only certain ways of obtaining trade secrets are illegal under the Florida Trade Secrets Act, i.e., “'Improper means' includes theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means.” [F.S. 688.00 (1)] The complaint contains no allegations that Defendant REED acquired Plaintiff's trade secrets by any of these means. Rather, it merely alleges that REED “acquired” (Complaint ¶51) such secrets. “Acquiring” trade secrets is not illegal. Only acquiring them by one or more the “improper means” listed in the statute is illegal.

63. The complaint does not even track the language of the statute. It does not choose one or more types of trade secret from the list in the statute, i.e., “…formula, pattern, compilation, program, device, method, technique, or process…” [F.S.688.002(4)]

64. Neither does the complaint track the language of the statute that differentiates between information that is and is not a protected trade secret, i.e., “information…that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use.” [F.S. 688.002 (4)(a)]

65. Finally, the complaint does not allege as required by F.S. 688.002 (4)(b) that “…[the trade secrets in question] are the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” [sic]

66. Complaint ¶27 ends with a 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. “If a plaintiff has no valid cause of action on the facts existing at the time of filing suit, the defect cannot ordinarily be remedied by the accrual of one while the suit is pending. We do not find that this rule has been changed by the Rules of Civil procedure which provide for amended or supplemental pleadings.” Hasam Realty Corporation v. Dade County, 178 So.2d 747 (1965)

67. Accordingly, the complaint does not contain sufficient allegations to sustain a Uniform Trade Secrets Act cause of action against Defendant REED.
MORE DEFINITE STATEMENT

68. If the Court does not agree at this time that this case should be dismissed for lack of personal jurisdiction or failure to state a cause of action, Defendant REED requests that the Court order Plaintiff to file a pleading that makes a more definite statement. (FLORIDA RULES OF CIVIL PROCEDURE §1.140 (E) The present pleading is, at best, so vague and ambiguous that Defendant REED cannot frame a responsive pleading. This motion has already pointed out the defects in the complaint and the details desired. For the Court's convenience, here are the pertinent paragraph numbers in this motion that supply that information: Introduction, 12, 13, 13, 16, 18, 20, 21, 22, 23, 24, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 45, 46, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, and 67.
APPEARANCE BY TELEPHONE

69. Reed was unable to find any official guidance regarding attending at hearings by telephone in the Florida Rules of Civil Procedure. However, he is aware that telephonic attendance is permitted and/or encouraged in other state and federal courts and trusts that the Lee County Court has a similar policy.

70. Because of his distance from Florida, the cost in time and money of traveling to Florida, and the disruption to REED's business that such travel would involve, there is good cause to grant Defendant REED's motion to attend any hearing related to this motion by telephone.
_____________ ______________________________
Date John T. Reed, pro se
342 Bryan Drive
Alamo, CA 94507
925-820-6292
fax 925-820-1259
johnreed@johntreed.com

IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT, IN AND FOR LEE COUNTY, FLORIDA

CASE NO.: 04-CA-003045
Judge William C. McIver

WHITNEY INFORMATION NETWORK, INC.
A Colorado Corporation,

Plaintiff,

v.

ROBERT E. YATES, an individual, and
JOHN T. REED, an individual,

Defendants.

ORDER

Pursuant to Defendant REED's motion and Florida Rules of Civil Procedure 1.140 (b)(2) & (6) and (e), and good cause having been shown, therefore,
IT IS ORDERED that the motion
____ to dismiss the complaint for lack of jurisdiction over the person
____ to dismiss the complaint for failure to state a cause of action
____ for a more definite statement
____ for leave for Defendant REED to attend pertinent hearings by telephone
be granted.

_______________ ______________________________________
Date

IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT, IN AND FOR LEE COUNTY, FLORIDA

CASE NO.: 04-CA-003045
Judge William C. McIver

WHITNEY INFORMATION NETWORK, INC.
A Colorado Corporation,

Plaintiff,

v.

ROBERT E. YATES, an individual, and
JOHN T. REED, an individual,

Defendants.

DECLARATION OF SERVICE
JOHN T. REED, under penalty of perjury hereby declares:
On November 27, 2004, I served DEFENDANT JOHN T. REED'S DISPOSITIVE MOTION TO DISMISS THE COMPLAINT FOR LACK OF PERSONAL JURISDICTION AND FOR FAILURE TO STATE A CAUSE OF ACTION OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT AND MOTION FOR LEAVE TO ATTEND HEARING BY TELEPHONE by Federal Express on Christina Kitterman, 300 Las Olas Place, Suite 860, 300 S.E. Second Street, Fort Lauderdale, FL 33301 and Robert Yates, 2200 Sunrise Boulevard, Fort Myers, FL 33907.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on November 27, 2004.

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

Copyright 2004 by John T. Reed
Guru ratings | Real estate investment page | Order form | Real estate investment books | Main Reed on Whitney page | Whitney claims vs. Reed research | Status of Whitney vs. Reed lawsuit | Whitney hit and run | Whitney assets | Have information on Whitney? | Review of Building Wealth | Whitney affiliations | Whitney publications | Unauthorized biography of Whitney | Suing Whitney | Whitney and income taxes
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.