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John T. Reed' motion to change venue to San Francisco for convenience of witnesses UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION WHITNEY INFORMATION NETWORK, INC., a Colorado Corporation, Plaintiff, v. JOHN T. REED, an individual, CASE NO.: 03-60195-CIV- MARRA/SELTZER Defendant. _____________________________________ MOTION TO CHANGE VENUE CHANGE OF VENUE FOR CONVENIENCE OF WITNESSES AND IN THE INTEREST OF JUSTICE UNDER 28 U.S.C. '§1404(a) AND TO WITHDRAW PREVIOUS MOTION TO CHANGE VENUE AND SUPPORTING MEMORANDUM OF LAW BY DEFENDANT Now comes the defendant, John T. Reed, pro se, and moves this court under U.S.C. 1404(a) to transfer this case to the Northern District of California for the convenience of witnesses and in the interest of justice. This is a refiling at the request of the Court of a predecessor motion that was previously filed with the Miami Division of the Southern District of Florida. In support thereof, the defendant asserts as follows: 1. Defendant and his books, records, documents, and exhibits in connection with the matters in controversy are located in the Northern District of California. 2. Plaintiff' books, records, documents, and exhibits in connection with the matters in controversy are generally unrelated to proving their case because of the specific nature of the complaint. 3. Because this is a public figure plaintiff-media defendant case, the state of mind of the Defendant is a crucial issue and the evidence of the Defendant' state of mind is all in the Northern District of California. 4. The population of California is approximately double that of Florida. Plaintiff offers its products and services nationwide therefore the greatest harm to Plaintiff would occur in California and the greatest number of potential witnesses who are customers, former customers, or prospective customers of Plaintiff are in California. 5. This case should be governed by the laws of the State of California where the conduct and occurrence that give rise to the litigation"”publication"”took place, not the 49 other states, including Florida, where the publication might merely have been read. The Northern District of California has greater experience applying California law. 6. This is a First Amendment case and therefore the Court

should show special concern for the chilling effect of allowing public-figure plaintiffs to hale publisher defendants into inconvenient forums. 7. Upon information and belief, Plaintiff runs its TV infomercials everywhere in the United States except in the Middle District of Florida, therefore that district has a unique lack of witnesses who are customers, former customers, or prospective customers of Plaintiff. 8. The Northern District of California has the most significant relationship to the case. 9. Other than the nationwide distribution of Plaintiffs" customers, the sole connection between this controversy and the Southern District of Florida appears to be the location of Plaintiff' counsel. MEMORANDUM OF LAW NATURE OF THE CASE 10. In the complaint which it filed in Miami originally numbered 03-Civ-60597, Plaintiff alleges Defendant' statement that Plaintiff is "insolvent" appearing for four days on Defendant' Web site was false, defamatory, and published with actual malice and that Plaintiff was harmed by that statement. 11. In such a case, the Court is likely to hear witnesses with regard to Defendant' state of mind [Herbert v. Lando, 441 U.S. 153 (1979)] with regard to how a reasonable person would interpret the complained-of word, and what effect on Plaintiff would result from that reasonable person reading the complained-of word. 12. Plaintiff' complaint originally filed in Broward County Court and removed to this Court alleges tortious interference with a business relationship, but it is a cut-and-paste copy of the since-withdrawn libel suit filed by the same plaintiffs against the same defendant in U.S. District Court in Fort Myers, FL in June of 2002. In spite of the facial allegation of tortious interference with a business relationship, that portion of this case is, in fact and substance, also a libel claim and therefore is subject to the actual malice requirements of New York Times v. Sullivan [376 U.S. 254 (1964)] and the state-of-mind relevance of Herbert v. Lando (supra). CONVENIENCE OF WITNESSES 13. "Probably the most important factor and the factor most frequently mentioned in passing on a motion to transfer under 28 USC 1404(a) is the convenience of witnesses." Moore' Federal Practice and Procedure, Jurisdiction '§3851. (Saminsky v. Occidental Petroleum Corp., DCNY 1974 373 F. Supp. 257) Most of the proper and necessary witnesses in this case are the parties, Plaintiff' current, former, and prospective customers and shareholders. Plaintiffs" customers are scattered in every district in the United States as well as in Canada and the United Kingdom. 14. The only known witness as to Defendant' state of mind is Defendant, a resident of the Northern District of California. 15. The witnesses as to the word "insolvent'" effect on a reasonable person and his or her resulting change in their behavior with regard to Plaintiff would be current, former, and prospective customers and shareholders of Plaintiff. Such persons are scattered around the United States and the world with the largest number of them being in the state with the most population: California. 16. In its response to the Court' Show Cause order, Plaintiff claims it has over 30 witnesses regarding damage to Plaintiff' business. Undoubtedly, these are all or almost all employees of Plaintiff whose testimony would likely be excluded as self-serving hearsay. Admissible damage testimony would take the form of ,"I read the word "insolvent" and as a result of reading that word decided not to do business with Plaintiff." Plaintiff' employees cannot provide such testimony. 17. Upon information and belief, based on conversations with former employees of Plaintiff, Plaintiff has a policy of not running its TV infomercials in the vicinity of its Cape Coral, FL headquarters. Reportedly, the purpose of this policy is to prevent CEO Russell A. Whitney from being recognized and bothered on local streets and to make for an inconvenient drive for extremely unhappy customers who wish to complain in person to Russell A. Whitney or the Whitney organization. As a result of this policy, Florida paradoxically has a unique dearth of Plaintiff' customer, former customer, and prospective customer witnesses combined with a unique surplus of employee witnesses. 18. Defendant would be prejudiced by having to adjudicate this case in a forum where Plaintiff can inexpensively pack the witness list and gallery with its employees and where it has had a deliberate policy of not soliciting customers through its main form of advertising: TV infomercials. LOCATION OF COUNSEL NOT TO BE CONSIDERED 19. The sole reason this case is in the Southern District of Florida appears to be the location of Plaintiffs" counsel. It is well settled that this should not be given any weight. (Poncy v. Johnson & Johnson, DC Fla 1976 414 F. Supp. 551) CHANGE OF VENUE WILL RESULT IN NET INCREASE IN CONVENIENCE 19. The requested change of venue will have no effect on the parties because either Florida or California venue results in one of the parties flying between the two. However, the change will result in net convenience to the customer witnesses because they are more numerous by an order of magnitude in California, which has twice the population of Florida and has not been blacked out as to infomercials by Plaintiff. WITHDRAWAL OF PREVIOUS MOTION FOR CHANGE OF VENUE 20. As suspected by the Court in its sua sponte Omnibus Order of September 25, 2003, this change-of-venue motion supersedes the one previously filed with this Court before the two cases were consolidated and before Judge Patrica Seitz of the Miami Division issued her sua sponte order to show cause why this case should not be transferred to the Northern District of California. Defendant hereby moves this Court to withdraw the first change-of-venue motion filed in this Court by Defendant. Wherefore the defendant moves this court to transfer the complaint against him to the Northern District of California. Respectfully submitted, October 6, 2003 _____________________ date John T. Reed Defendant 342 Bryan Drive Alamo, CA 94507 Telephone: 925-820-6292 Fax: 925-820-1259 www.johntreed.com John T. Reed, a.k.a. John Reed, Jack Reed, 342 Bryan Drive, Alamo, CA 94507, Voice: 925-820-7262, Fax: 925-820-1259, www.johntreed.com

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