Court Records
Case 9:09-cv-80591-KAM Document 56 Entered on FLSD Docket 06/26/2009 Page 1 of 10
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
JANE DOE NO. 101,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
CASE NO.: 09-CV-80591-MARla
PLAINTIFF JANE DOE NO. 101'S RESPONSE TO DEFENDANT'S
N TO DISMISS FIRST AMENDED COMPLAINT AS MODIFIED
BY DEFENDANT'S NOTICE OF WITHDRAWAL OF ARGUMENTS I THROUGH VII
OF DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED
COMPLAINT
Plaintiff, Jane Doe No. 101, by and through her undersigned attorneys, hereby responds
to Defendant's Motion to Dismiss Plaintiff's First Amended Complaint [D.E. 29] ("Motion"), as
modified by Defendant's Notice of Withdrawal [D.E. 53] ("Notice of Withdrawal") of
Arguments I Through VII of Defendant's Motion to Dismiss Plaintiff's First Amended
Complaint and, as grounds, states as follows:
Pleading Standard & Summary of Argument
It is well settled in the context of a civil action that a valid complaint requires only "a short and
plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P.
8(aX2). Defendant improperly attempts to heighten this standard through his characterization of
this action as one that is essentially criminal and punitive in nature. Such a characterization is
inappropriate, as this is a civil action that seeks only compensatory damages for the violation of
certain of the predicate offenses of Section 2255 of Title 18 of the U.S. Code as set forth in the
Podhurst Orseck, P.A.
25 West Plaster Street, Suite 800, Miami. FL 33130, Miami [Phone Redacted] Fax 3(15.3582382 • Port Lauderdale [Phone Redacted] www.podhureLe001
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First Amended Complaint ("FAC") [D.E. 9]. Accordingly, notice pleading is all that is required.
Lombard's, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir. 1985).
Under notice pleading, the plaintiff need only provide the defendant fair notice of his
claim and the grounds upon which it rests. See Erickson v. Pardus, 127 S. Ct. 2197, 2200
(2007). As this is a liberal pleading requirement, "[s]pecific facts are not ner.eqsary; the
statement need only `give the defendant fair notice of what the...claim is and the grounds upon
which it rests."' Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)) (internal
citation omitted). In considering a motion to dismiss, a court places a "very high burden" on a
defendant to show that a "plaintiff cannot conceivably prove any set of facts that would entitle
him to relief." v. Deloitte & Touche et al., 144 F.3d 732, 735-36 (11th Cir. 1998); accord
N.J. Inc. v. Thv. Bell TeL Co., 492 U.S. 229, 249-50 (1989). The MC satisfies the
aforementioned pleading requirements.
I. REQUIRING MERGER OF EACH SEPARATE STATUTORY PREDICATE
OFFENSE INTO ONE SINGLE COUNT WOULD BE IMPROPER.
A. Pleading of Multiple Counts Under 18 US.C. § 2255 Is Proper.
In his motion, Defendant argues that the multiple counts of the FAC should he merged
into a single count. Defendant improperly asserts:
Contrary to Plaintiff's attempt to multiply her recovery by asserting
six separate counts, [18 U.S.C.] § 2255, creates a single cause of ac-
tion with a single penalty for all violations of a predicate offense, not
separate causes of action and separate recoveries on a "per violation"
basis.
(Motion 34). In so contending, Defendant both confuses and incorrectly advances two distinct
propositions: first, that pleading a separate count for each violation of a predicate offense as set
2
Podhurst Orseck, P.A.
25 West Flagler Street, Suite 800, Miami, FL 33130, Mhuni [Phone Redacted] Fax [Phone Redacted] • Fort Lauderdale [Phone Redacted] I www.podlitastcora
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CASE NO.: 09-CV-80591-MARRA'
forth in Section 2255 of Title 18 is improper, and second, that all violations of a particular
predicate offense must be pled as a single cause of action to provide for a single recovery, even
where multiple violations of that particular predicate offense may exist.
In connection with Defendant's first proposition, a plain reading of Section 2255
demonstrates that this civil remedies statute applies individually to each numerated predicate
offense and establishes the minimum amount of civil damages available to a qualifying victim
for each violation. Specifically, 18 U.S.C. Section 2255 provides:
(a) In General. - Any person who, while a minor, was a victim of a
violation of section 2241(e), 2242, 2243, 2251, 2251A, 2252, 2252A,
2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a
result of such violation, regardless of whether the injury occurred while
such person was a minor, may sue in any appropriate United States
District Court and shall recover the actual damages such person sustains
and the cost of the suit, including a reasonable attorney's fee. Any person
as described in the preceding sentence shall be deemed to have sustained
damages of no less than $150,000 in value.'
18 U.S.C. § 2255(a) (2008). Nowhere does the above statutory text require that the violation of
the specified federal statutes be pled as a single count. Section 2255 provides a civil remedy for
a violation of each of the predicate offenses, and does not, as Defendant maintains, preclude
multiple counts from being pled pursuant to its terms. For each predicate offense that Defendant
committed, Section 2255 should apply independently and uniquely to properly determine the
minimum amount of civil damages to be awarded for such offense. To adopt the contrary
approach is to suggest that a victim of a violation of a single predicate offense receive the same
compensation as a victim of multiple enumerated predicate offenses. The statute's language, as
'July 27, 2006, approximately two years before Defendant pled guilty to state criminal offenses and signed the
Non-Prosecution Agreement, Public Law 109-248, the Adam Walsh Child Protection and Public Safety Act, became
law and raised the statutory minimum for damages under 18 U.S.C. Section 2255 from $50,000.00 to $150,000.00.
3
Podhurst Orseck, P.A.
25 West Flagler Street, Suite 800, Miami, P1.33130, Miami [Phone Redacted] Fax [Phone Redacted] • Fort Lauderdale [Phone Redacted] www.podbuntcom
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CASE NO.: 09-CV-80591-MARRA/JOHNSON
well as principles of equity, provide for recovery for each separate predicate offense; to interpret
the statute as Defendant proposes would mean that Congress granted defendants who violate a
predicate offense the ability to violate additional predicate offenses without any accountability.
This was not Congress' intent.
The underlying approach to statutory interpretation or construction in Florida is set forth
in A.R. DoUglass, Inc., v. McRainey, 137 So. 157 (Fla. 1931):
The intention and meaning of the Legislature must primarily be
determined from the language of the statute itself and not from
conjectures aliunde. When the language of the statute is clear and
unambiguous and conveys a clear and definite meaning, there is no
occasion for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious
meaning.
Id. at 159. A review of the wording of Section 2255 unambiguously demonstrates that the
statute provides damages for both multiple violations of a single predicate ace as well as
multiple violations of separate predicate acts. In its current form, the statute allows laJny
person who, while a minor, was a victim of a violation of section 2241(c), 2242, 2243, 2251,
2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a
result of such violation" to recover damages in an amount of not less than S150,000.00. 18
U.S.C. § 2255(a) (emphasis added). This statute is properly read to apply the damage floor of
Section 2255 to each violation of a predicate offense. Defendant's assertion that the above
statute only permits a single recovery based on a single cause of action would require that the
statute be rewritten to eliminate the use of the article "a" and to make plural all singular usages
of the word "violation."
2Set Section L B. of this Reply in support of the pleading of multiple violations of a predicate offense.
4
Podhurst Orseck, P.A.
25 West Hagler Street, Suite800, Miami, Fl. 33130, Miami [Phone Redacted] Fax [Phone Redacted] • Fort Lauderdale [Phone Redacted] I www.podhurst.com
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CASE NO.: 09-CV-80591-MARRA/JOHNSON
The statute, however, was not written in this manner, and where the statute as currently
constructed is unambiguous in its meaning, judicial interpretation of the statute would be
improper. See Heredia v. Allstate Insurance Company, 358 So.2d 1353 (Fla. 1978) (explaining
that "[w]here the words selected by the Legislature are clear and unambiguous...judicial
interpretation is not appropriate to displace the expressed intent").
In the instant case, where Defendant violated multiple predicate offenses in his sexual
exploitation of Plaintiff, it is proper to plead each violation as a separate count and seek damages
under each count in accordance with Section 2255.
B. Pleading of Multiple Violations of a Predicate Offense Under 18 U.S.C. § 2255 Is
Proper.
Defendant continues his self-serving interpretation of Section 2255 through the
advancement of his second proposition. Similar to the above argument that the violation of
several predicate offenses should be pled as one count, Defendant argues that, when multiple
violations of a single predicate offense occur, a victim's recovery on a "per violation" basis is
prohibited. Again, Defendant's contention fails on the basis of a common sense reading of the
statute and principles of fairness. Just as it makes no sense to compensate a victim of a violation
of a single predicate offense with exactly the same amount as a victim of a violation of multiple
predicate offenses, it is equally unsustainable to argue that a victim of multiple violations of a
predicate offense should receive the same damage award as a victim of only a single violation of
that same offense. To maintain otherwise is to eliminate the deterrent value of the statutory
scheme by allowing a defendant to continue to victimize a child without any additional
consequences subsequent to such defendant's first violation of the relevant predicate act.
5
Podhurst Orseck, P.A.
25 West Plagler Street, Suite SOO, Miami, FL 33130, Miami 30535&21103 Fax [Phone Redacted] • Port Lauderdale [Phone Redacted] t www.podhanatom
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CASE NO.: 09-CV-80591-MARRA1
Defendant argues that, "where actual damages were less than [the threshold amount] or
otherwise impossible to prove, the statute would guarantee a lump-sum, make-whole penalty of
[the threshold amount] for all injuries sustained as a result of the predicate acts." (Motion 35).
Defendant fails to provide any support for this contention, either in the case law, legislative
history, or otherwise. First, Defendant incorrectly states the amount of the "make-whole"
penalty. The statute unambiguously provides that "[a]ny person as described in the preceding
sentence shall be deemed to have sustained damages of no less than [the threshold amount]. " 18
U.S.C. § 2255(a) (2008). As such, the threshold amount is a floor, and not a ceiling, on the
amount of damages that can be awarded for a violation of each predicate offense. Consequently,
in the instant case, even if all violations of the predicate offenses, as well as all violations of a
single predicate offense, were merged into a single cause of action, the recovery would not be
limited to the minimum threshold damage award.
Relevant case law provides support for holding Defendant accountable for each time he
violated any of the enumerated predicate offenses. In United States v. Esch, 832 F.2d 531, 541
(10th Cir. 1987), the court established that a determination of the correct unit of prosecution for
violation of a statute "focuses in part on the identification of the key element of the federal
offense." In Esch, the defendants were convicted on sixteen counts of sexual exploitation of
children for photographs taken in violation of Title 18, Section 2251 of the U.S. Code. Id. at
533. The court held that the indictment properly charged separate counts' for each of the
photographs produced. Id. at 533, 542. Specifically, the court noted that the charging of
)Note that although Defendant contends that all predicate violations of predicate offenses, as well as multiple
violations of a single predicate offense, should be pled as a single cause of action with only a single recovery, Esch
stands for the contrary view.
6
Podhurst Orsecic, P.A.
25 West Hagler Sorel, Suite 800. Miami, FL 33130, Mont [Phone Redacted] Pax 3[63582382 • Port laudadale 954.4€3.4346 1 www.podhurstoom
EFTA02738574
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CASE NO.: 09-CV-80591-
separate offenses was warranted where "[e]ach photograph depended upon a separate and
distinct use of the children" in violation of the key element of the offense. Id. at 542; see also
Ebeling v. M, 237 U.S. 625, 629 (1915) (charging the defendant with a separate count for
each mail bag cut open in violation of the statutory offense, despite the transaction being "in a
sense continuous"); United States v. Gallardo, 915 F.2d 149, 151 (5th Cir. 1990) (explaining that
"each separate use of the mail to transport or ship child pornography should constitute a separate
crime because it is the act of either transporting or shipping that is the central focus of [18
U.S.C. § 2252(aX1XA), a predicate] statute").
Notwithstanding that the foregoing jurisprudence involved criminal prosecution for the
violation of predicate offenses, because Section 2255 exists to provide civil remedies for those
predicate offenses, Defendant's contention that a plaintiff seeking recourse under Section 2255
cannot assert a claim on a "per violation" basis is without merit. It is simply illogical to assert,
as Defendant does, that multiple counts and violations can be charged in the criminal context,
but that, in a civil action under Section 2255 for those same violations, all counts and violations
must be lumped together as one with a single penalty.
Multiple counts are proper, as shown, for example, in Tilton v. Playboy Entertainment
Group, Inc., 554 F.3d 1371, 1375 (11th Cir. 2009), on which Defendant relies in his Motion.
(Motion 34). In Tilton, the court did not prohibit the plaintiff from seeking separate damages
against several defendants based on a single incident for violations of three predicate offenses
under Section 2255: §§ 2251(a), 2252(a), and 2252(AXa). Id. Although the counts brought
under Sections 2252(a) and 2252(A) were deemed to be duplicative by the court and thus were
merged, the plaintiff was, nevertheless, able to recover on the two remaining counts and was
7
Podhurst Orseck, P.A.
25 West Hagler Street, Suite 800, Miami, FL 33130, Miami [Phone Redacted] Fax 305158/382 • Fort Lauderdale [Phone Redacted] I www.podbund.corn
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CASE NO.: 09-CV-80591-MARRA/JOHNSON
awarded civil damages for each pursuant to 18 U.S.C. Section 2255. Furthermore, Defendant's
reliance on Tilton to claim that multiple alleged violations of a single predicate offense have
never been allowed is misplaced; this case involved only a single violation of a predicate statute.
Moreover, Defendant's reliance on its own Doe vs. Epstein line of cases is, at a minimum,
premature.
Accordingly, in the instant case, not only was it proper for Plaintiff to plead multiple
counts in the FAC for the violation of each predicate statute identified therein, but also, this
Court should assess civil damages under Section 2255 for each violation of a particular predicate
statute. Defendant's argument is unsupported by case law and is nothing more than a blatant
attempt to limit Plaintiff's potential recovery as a victim of Defendant's multiple acts of sexual
exploitation and abuse.
Dated this (e.szt"-day of June, 2009.
Respectfully submitted,
PODHURST ORSECIC, P.A.
Attorneys for Plaintiff
By: s/Katherine W. Ezell
Robert C. Josefsberg,
Fla. Bar No. 040856
[Email Redacted]
Katherine W. Ezell
Fla. Bar No. 114771
[Email Redacted]
Podhurst Orseck, P.A.
25 West Flagler Street, Suite 800
Miami, Florida 33130
([Phone Redacted]
([Phone Redacted] (fax)
8
Podhurst Orseck, P.A.
25 West Flagler Street, Suite 800, Miami, FL 33130, Miami [Phone Redacted] Fax [Phone Redacted] • Fort Lauderdale 954.463430 f www.podhurstcom
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CASE NO.: 09-CV-80591-MARRA'
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this 26th day of June, 2009, we electronically filed the
foregoing document with the Clerk of the Court using CM/ECF. We also certify that the
foregoing document is being served this day on all counsel of record identified on the attached
Service List either via transmission of Notices of Electronic Filing generated by CM/ECF or in
some other authorized manner for those counsel or parties who are not authorized to receive
electronically Notices of Electronic Filing.
Respectfully submitted,
PODHURST ORSECK, P.A.
Attorneys for Plaintiff
By: s/Katherine W. Ezell
Robert C. Josefsberg
Fla. Bar No. 040856
rjosefsberg@rx)dhurst.com
Katherine W. Ezell
Fla. Bar No. 114771
[Email Redacted]
City National Bank Building
25 W. Flagler Street, Suite 800
Miami, FL 33130
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
9
Podhurst Orseck, PA.
25 West Flagler Street, Suite 800, Miami, FL 33130, Miami 386.358250D Fax [Phone Redacted] • Fort Lauderdale [Phone Redacted] I www.podhlustcorn
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CASE NO.: 09-CV-80591-
SERVICE LIST
JANE DOE NO. 101 v. JEFFREY EPSTEIN
Case No. 08-CV-80591-MARRa
United States District Court, Southern District of Florida
Robert Critton Esq.
Burman, Critton, Luther & Coleman LLP
515 North Flagler Drive, Suite 400
West Palm Beach, FL 33401
[Email Redacted]
Jack Goldberger, Esq.
Atterbury, Goldberger & Weiss, P.A.
250 Australian Avenue South, Suite 1400
West Palm Beach, FL 33401
jagesq®bellsouth.net
10
Podhurst Orseck, P.A.
25 West Plaster Street, Suite 800, Miami, FL 33130, Miami [Phone Redacted] Fax [Phone Redacted] • Fort Lauderdale [Phone Redacted] www.pxthurst.coen
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