Court Records
Case 9:08-cv-80232-KAM Document 7 Entered on FLSD Docket 06/13/2008 Page 1 of 11
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80232-MARRA-]
JANE DOE NO. 3,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
/
RESPONSE TO MOTION FOR ENTRY OF CLERK'S DEFAULT
Defendant Jeffrey Epstein, pursuant to Fed. R. Civ. P. 55(c), hereby opposes
plaintiff Jane Doe No. 3's motion for a clerk's default upon the following showing
of "good cause."
Introduction
The clerk's default should not be entered. Service was effected as of June 2.
Accordingly the response is due 20 days later, on or before June 23. See Fed. R.
Civ. P. 12(a)(1)(A)(i).
The plaintiff, in moving for a clerk's default, implied that service was made
in accordance with either federal or Florida procedure. As discussed below,
however, service was clearly ineffective under the federal and Florida rules of
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procedure. Accordingly, the only possibility for valid service was service under
New York rules of procedure. Cf. RCP's Lear, LLC v. Taughannock Aviation
Corp., No. 5:07-CV-96, 2008 WL 305103, at *4 (N.D.N.Y. Jan. 31, 2008)
(observing that "[a]s a threshold matter, the court must [first] address the rules
pursuant to which process was served").
Service of process was valid under New York's rule for so-called
"substitute-service" (i.e., service in a manner other than delivery in-hand to the
defendant herself or himself), but that statute gives the defendant more time to
respond than do the federal or Florida rules. See id. (acknowledging that Fed. R.
Civ. P. 4(e)(2) has a "'resided therein' requirement," unlike "New York's
substituted service statute," NY CPLR 308); NY CPLR 308 (providing that
service is not deemed effected until /0 days after the process-server's affidavit is
filed with the Court).
This is not a motion to quash, or a motion arguing that service was
completely ineffective. To the contrary, we acknowledge that service was effective
under New York procedure, but point out that it was ineffective under Florida and
federal procedure. Federal Rule of Civil Procedure 4(e)(1) permits service to be
made according to "state law for serving a summons in . . . the state . . . where
service is made" as an alternative to following the federal service method (i.e.,
Rule 4(e)(2)).
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As shown below, under New York's so-called "substituted -service" rule,
service was effected on June 2, not May 7 (as the plaintiff and the deputy clerk of
court evidently believed). Accordingly, the defendant's response to the complaint
is not due until June 23. See Fed. R. Civ. P. 12(a)(1)(A)(i) (allowing 20 days from
the date of service of process to serve answer), I
Facts and Procedural History
1. On May 7, 2008, service was delivered at defendant Epstein's house
located at 9 East 71st Street, New York, New York, to Richard Barnett, an
employee.
2. Mr. Barnett does not reside at that address. See Affidavit of Richard
Barnett (attached as Ex. A).
3. On May 29, 2008, the plaintiff moved for an entry of default against
Mr. Epstein. [D.E. 5].2 The Clerk of Court has not yet acted on the plaintiff's
motion.3
In this case, the 20th day falls on a Saturday (June 21). The answer is therefore due on
Monday, June 23. See Fed. R. Civ. P. 6(a)(3) (establishing that when a deadline falls on
Saturday, the "period runs until the end of the next day that is not a Saturday").
2 Notably, the plaintiffs attorney never mailed Mr. Epstein a copy of his motion for a
Clerk's entry of default.
3 The plaintiffs attorney here previously filed an identical action, captioned Jane Doe No.
1 v. Epstein, Case No. 08-80069-KAM, on behalf of a different plaintiff. That action was
voluntarily dismissed by the plaintiffs attorney after a motion to intervene was filed by Jane Doe
No. 1 (through her mother) indicating that neither Jane Doe No. 1 nor her mother had consented
to the attorney's filing the lawsuit on her behalf. See Case No. 08-80069-KAM [D.E. 9].
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Overview of Rules for Service of Process
The Federal Rules of Civil Procedure authorize three distinct methods of
service in a diversity action. First, service can be effected in accordance with the
procedures "in the state where the district court is located" (here, Florida). See
Fed. R. Civ. P. 4(e)(1). Second, service can be effected in accordance with the
procedures "in the state . .. where service is made" (here, New York). See Fed. R.
Civ. P. 4(e)(1). Third, service can be effected in accordance with federal
procedure. See Fed. R. Civ. P. 4 (e)(2). Cf. David D. Siegel, Practice Commentary
on Rule 4 of the Federal Rules of Civil Procedure, Commentary C4-22 (observing
that "there is no priority between the [authorized methods of service]") (emphasis
added).
Thus, when a diversity action is brought in the Southern District of Florida,
In addition to that action, the same plaintiff's attorney here has filed four other, identical
lawsuits against Jeffrey Epstein on behalf of four plaintiffs that are still pending before this
Court: Jane Doe No. 2 v. Epstein, Case No. 9:08-cv-80119-KAM; Jane Doe No. 3 v. Epstein,
Case No. 9:08-cv-80232-KAM; Jane Doe No. 4 v. Epstein, Case No. 9:08-cv-80380-KAM; and
Jane Doe No. 5 v. Epstein, Case No. 9:08-cv-80381-ICAM. Plaintiffs counsel has sought an
entry of default in each case. In the Jane Doe No. 2 litigation, the deputy clerk, identified on the
docket as "tp," declined to enter a default on the grounds that there had been "Improper Service."
See 9:08-cv-80119-KAM [D.E. 7, 8]. In the Jane Doe No. 3 litigation, the deputy clerk has not
yet ruled upon the plaintiff's motion. See Case No. 9:08-cv-80232-KAM [D.E. 5]. In the Jane
Doe No. 4 and Jane Doe No. 5 litigation, the deputy clerk, identified on both docket sheets as
"ail," entered the default. See Case No. 9:08-cv-80380-KAM [D.E. 7, 8] and Case No. 9:08-cv-
80381-ICAM [D.E. 5, 6]. Since then, the plaintiff's attorney has moved for a judgment of default
in those two cases (Jane Doe Nos. 4 and 5). See Case No. 9:08-cv-80380-ICAM [D.E. 9] and
Case No. 9:08-cv-80381-KAM [D.E. 7].
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and service is made in New York, service is effective when it complies with either
Florida law or New York law, or alternatively, with federal procedure.
As discussed below, because New York does not have a residency
requirement for the person to whom substitute-service is delivered (and Florida
and the federal rules do), service was effective only in accordance with New York
procedure. Cf. RCP's Lear, LLC, 2008 WL 305103, at *4 (resolving parties'
dispute concerning the intended method of service, and applicable procedure).
Stated differently, service did not comply with either federal procedure or Florida
procedure.
New York Procedure—CPLR 308 (no residency requirement)
Under New York law, service of process can be effected by delivering the
summons "to a person of suitable age and discretion at the . . . dwelling place or
usual place of abode of the [defendant]," and when the summons is "mailed to the
[defendant] at his or her last known residence or . . . mail[ed] . . . by first class
mail to the [defendant] at his or her actual place of business" in accordance with
specific technical instructions. N.Y. C.P.L.R. § 308(2) (McKinney 2008). As an
additional requirement, "proof of such service shall be filed with the clerk of the
court designated in the summons within twenty days of either such delivery or
mailing, whichever is effected later." Id.
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In accordance with New York procedure, such substituted service "shall be
complete ten days after such filing." Id. (emphasis added). Accordingly, New
York does not use the date of delivery to the person at the defendant's "abode" as
the date service is effected. This was the point of error for the deputy clerk and the
plaintiff's attorney.
Florida Procedure—Fla.,Stat.* 48.031 (residency requirement)
Under Florida law, service of process can be effected "by leaving the copies
[of the summons and complaint] at [the defendant's] usual place of abode with any
person residing therein who is 15 years of age or older and informing the person
of their contents." Fla. Stat. § 48.031(1)(a) (2007) (emphasis added). Service is
deemed effected as of the date of delivery.
Federal Procedure —Fed. R. Ch. P. 4 (e)(2)(B) (residency requirement)
Service is effective, under federally authorized procedures, when copies of
both the summons and the complaint are "le[ft] . . . at the individual's dwelling or
usual place of abode with someone of suitable age and discretion who resides
there." Fed. R. Civ. P. 4 (e)(2)(B). Again, service is deemed effected as of the
date of delivery.
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Discussion
Defendant Jeffrey Epstein's response to the complaint is not due until June
23. Accordingly, the clerk's entry of default was premature. For the following
"good cause," it should be set aside. Fed. R. Civ. P. 55(c) ("The court may set
aside an entry of default for good cause.").
A. Service was not made on someone who "resided" at the subject address.
Substituted service was attempted on Richard Barnett at a house owned by
Mr. Epstein located at 9 East 71st Street, New York, New York. See Affidavit of
Service [D.E. 4]. Mr. Barnett has never lived there.4 (Barnett Aff.1 3.)
B. Because service was not made on someone who "resided" at the subject
address, service was effective only in accordance with New York
procedure.
Of the three possible methods of service in this case—New York service,
Florida service, and federal-rules service —only New York rules allow substituted
service on someone who does not "reside" at the service address. Compare Fla.
Stat. § 48.031(1)(a) (authorizing substituted service of process only on a person
meeting certain criteria who "reside[s]" at the service address), and Fed. R. Civ. P.
4 (e)(2)(B) (same), with NY CPLR 308(2) (authorizing so-called "leave -and-mail"
4 Indeed, in a motion for an order compelling the Clerk to enter default against Mr. Epstein,
filed in connection with the Jane Doe No. 2 litigation, the plaintiff's attorney characterized Mr.
Barnett simply as an "Assistant and House Staff Employee," not a resident of the property.
Case No. 9:08-cv-80119-KAM [D.E. 9 at 2].
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substituted service, which does not require delivery to a person who actually
resides the service address).
Because Mr. Barnett was not a resident of 9 East 71st Street, logically,
service could have been effected only in accordance with New York procedure.
C. Service was effective as of June 2, not earlier.
As noted above, Fed. R. Civ. P. 4 permits service according to the law "in
the state . . . where service is made," here, New York. See Fed. R. Civ. P. 4(e)(1).
While New York permits substitute service on a non-resident at the defendant's
"abode," such substituted service is not complete until 10 days after the affidavit
reciting the method of service is actually fi led with the Court. See NY CPLR
308(2).
Although the summons was left with Mr. Barnett at Epstein's New York
home on May 7, the affidavit of service was not fi led with the Court until May 22.
Accordingly, under NY CPLR 308(2), service is not deemed complete until 10
days later, which was June 2. Counting 20 days more according to Fed. R. Civ. P.
12(a)(1)(A)(i) and 5, Mr. Epstein's response is still not due until June 23.
Accordingly, the plaintiffs motion for default was almost three weeks early and
the default was entered improperly.
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D. "Actual" notice is irrelevant.
In the related Jane Doe No. 2 case, the plaintiff advances the untenable
position that the service rules are trumped simply because Epstein had "actual
notice" of the complaints. See D.E. 9 at 4,1 9 (Jane Doe No. 2 v. Epstein, Case
No. 9:08-cv-80119-ICAM) ("Defendant Epstein had actual notice of the filing of
the Complaint, and the Plaintiff has exercised diligence and good faith in
attempting to serve Defendant Epstein with process. Accordingly, entry of default
is appropriate."). The Eleventh Circuit is clear, however, that "actual notice of a
suit does not dispose of the requirements of service of process." v.
Warden, FCC Coleman-USP, 259 Fed. Appx. 181, 182 n.2 (11th Cir. 2007) (citing
Mfrs. Hanover Trust Co. v. Ponsoldt, 51 F.3d 938, 940 (11th Cir.1995)).
Conclusion
We do not dispute that service was effective. We only dispute the date that
it became effective. Since service was ineffective under both Florida law and the
federal-rules alternative (because the recipient of the service did not "reside" at the
address), the only service law that could apply is New York's. New York's rule
for substituted-service does not start the 20-day clock for responding to the
complaint until 10 days after the process-server's affidavit is filed with the Court.
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Accordingly, the 20-day clock did not start to tick (Le., service was not
deemed to have been effected) until June 2. Counting time as provided by Fed. R.
Civ. P. 6(a)(3), Epstein has until June 23 to serve a response to the complaint.
WHEREFORE, "good cause" having been showing under Fed. R. Civ. P.
55(c), the clerk's default should not be entered.
Respectfully submitted,
ATTERBURY, GOLDBERGER &
WEISS, P.A.
250 Australian Avenue South, Suite 1400
West Palm Beach, Florida 33401
Tel: [Phone Redacted]
Fax: [Phone Redacted]
By: /s/ Jack A. Goldberger
Jack A. Goldberger
Ha. Bar No. 262013
jgoldberger@ agwpa.com
Attorneys for Defendant Jeffrey Epstein
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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7
Counsel for defendant has conferred in good faith with counsel for the
plaintiff, who opposes the relief requested in this motion.
/s/ Jack A. Goldberger
Jack A. Goldberger
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 13, 2008, I electronically filed the
foregoing document with the Clerk of the Court using CM/ECF. I also certify that
the foregoing document is being served this day on counsel of record identified
below by facsimile and U.S. Mail.
Jeffrey M. Herman, Esq.
Stuart S. Mermelstein, Esq.
Adam D. Horowitz, Esq.
Herman & Mermelstein, P.A.
18205 Biscayne Blvd, Suite 2218
Miami, Florida 33160
Fax: [Phone Redacted]
/s/ Jack A. Goldberger
Jack A. Goldberger
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