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John T. Reed' motion to dismiss Lee County, FLorida lawsuit against John T. Reed 1 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. 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 INTRODUCTION Defendant JOHN T. REED's ("REED") instant motion to dismiss Plaintiff's complaint against REED should be granted by this Court for several compelling reasons. First, REED does not have sufficient contacts with the State of Florida such that REED can reasonably anticipate being haled into court in Florida State court. Second, the vague allegations in the complaint and the undisputed facts set forth in the Affidavit of REED establish that at no time did any communication between REED and Defendant YATES, either considered individually or collectively, give rise to a tort in the State of Florida. If this Court finds that this Court has personal jurisdiction over REED, REED moves this Court to dismiss the case for failure to state a cause of action. In the alternative, Defendant REED moves this Court for an order that WIN provide a more definite statement as to the claims and wrongful acts asserted against REED. If the Court finds that a hearing is necessary to decide this motion, Defendant REED requests leave of the Court to attend such hearing by telephone. BACKGROUND 1. Plaintiff Whitney Information Network, Inc. (WIN) is a publicly-traded $100-million-a-year seller of multi-thousand-dollar, get-rich-quick seminars and "mentoring" services. WIN sells these seminars and services primarily through television infomercials, high-pressure, "free" hotel meeting room seminars, and high-pressure, telephone boiler room salespersons. 2. Defendant John T. Reed (REED) is a one-man-shop, home-office-based, self-publisher of books on real estate investment, football and baseball coaching, and succeeding and an investigative journalist. 3. In conjunction with his publishing business, REED operates a Web site: https://www.johntreed.com. The Web site among other things has reviews of various real estate investment books and gurus including Russ Whitney (WHITNEY), the chairman and chief executive officer of WIN. WHITNEY has expressed particular unhappiness that REED has revealed WHITNEY's various brushes with the law, including among others, pleading guilty to second degree robbery and going to prison for that crime, losing a paternity/child support law suit, and losing a $1.2 million-dollar hit-and-run lawsuit. Because he is a public figure and these facts are supported by public records, WHITNEY cannot legally get these stories removed from REED's Web site. Instead, he is using various meritless legal

processes to try to achieve the same result through harassment and intimidation. 4. Between 2000 and 2002, WIN ordered REED to remove all mention of WHITNEY from his Web site. REED did not comply with that order except that he did immediately remove several complained-of phrases in an email from one of WHITNEY's unhappy customers. 5. On June 25, 2002, WIN and WHITNEY filed the first of four lawsuits against REED. The suits were filed in state and federal courts in Fort Myers, Fort Lauderdale, Miami, and the present suit in Lee County. WIN and WHITNEY withdrew the original Fort Myers suit, but the subsequent Fort Lauderdale and Miami suits in state and federal court have been consolidated and are now back in Fort Myers federal court [Case # 2:04-CV-395-FTM-33DNF (LAG)]. 7. Although these cases allege various causes of action like libel, defamation, and tortious interference with a business relationship, the gravamen of all of them is libel of a public figure by a media defendant and the true purpose of the litigation is to harass and intimidate Defendant REED into silence with regard to WHITNEY's well-documented past and current misbehaviors. PERSONAL JURISDICTION 8. The legal tests of personal jurisdiction in this case are contained in two authorities: o subparagraph 1 of the due-process clause in the Fourteenth Amendment to the U.S. Constitution o the state long-arm statute (Florida Statute 48.193) 9. Plaintiff must satisfy both tests to prevail against a motion to dismiss for lack of personal jurisdiction. (PK Computers, Inc. v. Independent Travel Agencies of America, Inc., District Court of Appeal of Florida, Fourth District 656 So. 2d 254, 20 Fla. L. Weekly D1404) 10. The Court must grant Defendant REED's motion to dismiss if the complaint fails to allege sufficient facts to meet the two tests listed above. The Court must also dismiss the complaint if the complaint alleges facts sufficient to meet the tests listed above, but Defendant REED's affidavit refutes those factual allegations and Plaintiff's opposition does not meet the burden of proof shifted to it by Defendant REED's affidavit. Venetian Salami Co., 554 So.2d 499, 502 (Fla. 1989) FEDERAL 'MINIMUM CONTACTS' STANDARD 11. The federal standard is that the Court can exercise personal jurisdiction over REED only if he maintains, "certain minimum contacts with [Florida] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000), cert. denied, 531 U.S. 818, 121 S.Ct. 58, 148 L.Ed.2d 25 (2000). 12. In Burger King, 471 U.S. at 476, 105 S.Ct. 2174, the U.S. Supreme Court said, "So long as a commercial actor's efforts are "purposefully directed" toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there." [emphasis added] Most pertinent cases involve telephone calls and mail directed to the forum state. Reed, however, has not engaged in such efforts. (REED Affidavit '¶'¶ 24, 25, 28, 29, 41, 47, 48, 49, 52, 56, 57) 13. Plaintiff appears oblivious to the need to meet the federal due-process standard as evidenced by the fact that their complaint contains no allegations that track the various phrases used in pertinent court decisions. "Importer failed to establish personal jurisdiction over nonresident employee of competitor, for purposes of importer's action alleging the appropriation of confidential information and its use to interfere with importer's business relationships; employee's affidavit stating that he entered state only once, for an unrelated purpose, refuted importer's assertion that employee was doing business in state, importer did not assert any other basis of jurisdiction under long-arm statute, and importer did not allege continuous and systematic contacts with state, or a connection between those contacts and the cause of action, such as would satisfy due process." Seabra v. International Specialty Imports, Inc., App. 4 Dist., 869 So.2d 732 (2004). GENERAL ALLEGATIONS NOT ENOUGH 14. "General allegations of "substantial activity" in form of solicitation within state are not alone sufficient grounds for assertion of general jurisdiction." Prentice v. Prentice Colour, Inc., M.D.Fla.1991, 779 F.Supp. 578 "Service on foreign corporation under this section was ineffective where jurisdictional allegations in the complaints were general and conclusory, and thus insufficient." Weatherhead Co. v. Coletti, App. 3 Dist., 392 So.2d 1342 (1980), approved 409 So.2d 1026 "Before court may exercise long-arm jurisdiction over nonresident defendant, basis for jurisdiction must be alleged with specificity in complaint." Sunrise Assisted Living, Inc. v. Ward, App. 2 Dist., 719 So.2d 1218 (1998), rehearing denied. "Under this section, personal jurisdiction could not be exercised over hospital which offered alcoholism and substance abuse treatment, or hospital's owner, absent allegation that defendants engaged in solicitation activities in Florida." Murphy v. Republic Health Corp., S.D.Fla.1986, 645 F.Supp. 124 "Where pleadings filed by third-party plaintiffs failed to allege the nature and date of third-party defendant's wrongful conduct or the nature of third-party plaintiffs' transaction so as to ascertain applicability of and compliance with long-arm statute, pleadings failed to allege sufficient jurisdictional facts and third-party complaint would be dismissed." Henschel-Steinau Co. v. Harry Schorr, Inc., App. 4 Dist., 302 So.2d 198 (1974). "Plaintiff failed to allege sufficient facts to demonstrate that cause of action arose from defendants' conducting of business in state, as required for state to exercise personal jurisdiction over defendants; plaintiff's allegation that conduct of business in state could be inferred did not provide required evidence of conduct in state." Fasco Controls Corporation v. Goble, App. 5 Dist., 688 So.2d 1029 (1997) SPECIFIC VERSUS GENERAL PERSONAL JURISDICTION 15. Florida long-arm statute 48.193 offers plaintiffs two choices for establishing personal jurisdiction under Florida law: specific or general. Specific personal jurisdiction is authorized by subparagraph 1 of 48.193; general jurisdiction by subparagraph 2. Plaintiff in this case has chosen to assert only specific personal jurisdiction under 48.193 (1) as evidenced by the fact that complaint contains no language that tracks the wording of 48.193 (2), namely, "(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." It is the phrase "'€¦whether or not the claim arises from that activity" that makes subparagraph (2) general in nature. 16. Complaint '¶6 does track portions of the language in F.S. 48.193 (1). Complaint '¶6 says, "6. Defendant, REED, is subject to the jurisdiction of this court because he: (a) Operates, conducts, engages in or carries on a business or business ventures within this state; (b) Committed a tort in this state; (c) Violated Florida's Uniform Trade Secrets Act, Fla. Stat. '§ 688.001 et seq.; (d) Tortiously interfered with Plaintiff's contractual relationship with Plaintiff's former employee, Defendant, YATES, in Florida causing harm to Plaintiff, in Florida." [punctuation and spelling errors in original] 17. The statutory language that makes subparagraph (1) specific rather than general in nature are the bold face words in the following: F.S. 48.193 (1) "Any person, whether or nor 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:" 18. Complaint '¶6(a) alleges that REED, "Operates, conducts, engages in or carries on a business or business ventures within this state." However, the causes of action alleged in the complaint do not arise from operating, conducting, engaging in or carrying on a business or business venture within Florida. As the Court can see from the Exhibits A through R of REED's Affidavit, the email communications between Defendants YATES and REED had nothing to do with REED conducting business in Florida. Rather, they solely relate to litigation between WIN, WHITNEY, and REED and YATES' involvement in that litigation. "By its terms, long-arm statute provision conferring jurisdiction over nonresident defendant for "any cause of action arising from the doing of" any of therein enumerated items, such as conducting business in forum state, requires connexity between the defendant's activities and the cause of action." Camp Illahee Investors, Inc. v. Blackman, App. 2 Dist., 870 So.2d 80 (2003) So complaint '¶6(a) is irrelevant to whether this Court has personal jurisdiction over REED. The inadequacy of complaint '¶'¶6(b), (c), and (d) to establish personal jurisdiction over Defendant REED are discussed elsewhere in this motion. 'RANDOM, FORTUITOUS, AND ATTENUATED CONTACTS' 19. Elaborating on the "purposefully directed" standard, the U.S. Supreme Court said, "[The] purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts.... Jurisdiction is proper ... where the contacts proximately result from actions by the defendant himself that create a substantial connection with the forum State." Burger King Corp., 471 U.S. at 475, 105 S.Ct. 2174 (citations and internal quotation marks omitted). The Supreme Court recognized that even a single act can support jurisdiction when it creates a substantial connection to the forum, but " 'some single or occasional acts' ... may not be sufficient to establish jurisdiction if 'their nature and quality and the circumstances of their commission' create only an 'attenuated' affiliation with the forum." Burger King Corp., 471 U.S. at 476 n. 18, 105 S.Ct. 2174 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). 20. REED's contacts with co-defendant YATES were attenuated. Co-defendant Robert Yates (YATES) initiated email contact with REED (REED Affidavit Exhibits A through R). REED rebuffed YATES stating he believed YATES was working in cahoots with WHITNEY to ensnare REED in some sort of trap, refused YATES' request for an interview, and told YATES that his plan to publish information gathered while WHITNEY's paralegal would likely be illegal because of attorney-client privilege. YATES sent REED ten unsolicited emails. REED had no other contact with YATES. (REED Affidavit 3, 4, 5, 6, 7, 8, 11) Plaintiffs and their confederates should not be able to artificially manufacture "minimum contacts" by sending unsolicited emails to a distant prospective target defendant. No court decision supports personal jurisdiction thus claimed. "Even if Florida corporation had requested that payments be made by Mississippi resident to corporation's Florida office, that unilateral act was insufficient to confer personal jurisdiction over Mississippi resident by providing Mississippi resident with required minimum contacts necessary under Fourteenth Amendment." Vaughn v. AAA Employment, Inc., App. 2 Dist., 511 So.2d 1045 (1987), "Under Florida law, unilateral act of Florida plaintiff does not provide foreign defendant with adequate minimum contacts so as to confer personal jurisdiction; the conduct of the foreign defendant must be his own purposeful activities, and not the unilateral activities of another." Loyd & Ring's Wholesale Nursery, Inc. v. Long & Woodley Landscaping and Garden Center, Inc. (S.C.App. 1993) 315 S.C. 88, 431 S.E.2d 632

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