Court Records
Case 9:08-cv-80380-KAM Document 15 Entered on FLSD Docket 06/25/2008 Page 1 of 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80380-MARRA
JANE DOE NO. 4,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
I
PLAINTIFF'S REPLY MEMORANDUM
IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT
Plaintiff, Jane Doe No. 4, by and through her undersigned counsel, submits this Reply
Memorandum in Support of Motion for Default Judgment, as follows:
Introduction
Defendant Jeffrey Epstein claims that service of process on him was ineffective under
Florida or Federal law, based solely on a "bare bones" affidavit that raises more questions than it
answers. At a minimum, the issue of whether service was effective under Florida or Federal law is
at this point one of fact which should be the subject of discovery.
The Affidavit Attached to the Defendant's
Response to the Motion is Insufficient
Service of process was effected at Jeffrey Epstein's New York residence on May 7, 2008, at
7:45 a.m. by handing a copy of the Summons and Complaint to a person in Defendant's residence
who refused to identify himself. (See D.E. 4, Affidavit of Service). A Clerk's Default was entered
against Defendant Jeffrey Epstein in this action on June 2, 2008. Defendant has filed the Affidavit
of Richard Barnett, who claims to have received the copies of the Summons and Complaint on May
7, 2008 at Defendant Epstein's residence. In this Affidavit, Mr. Barnett states very little. He asserts
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that he does not now, nor has he ever, resided at 9 E. 71st Street, New York, New York (Mr.
Epstein's residence). He fails to state in this Affidavit, however, where he does live, if not at the
residence in question; what he was doing at the subject address when service was made; his
relationship with Defendant Epstein, and how often he was at the residence; or why he refused to
identify himself to the process server. He also fails to state who instructed him to answer the door
on May 7, 2008 and take service anonymously.
The Court may grant limited discovery on the issue of service of process. Commonwealth of
Puerto Rico v. SS Zoe Colocotroni 61 F.R.D. 653, 656-57 (D.P.R. 1974) ("discovery regarding the
legal sufficiency of service of process so as to acquire in personam jurisdiction over the person of a
defendant is permitted by the Federal Rules of Civil Procedure, specifically Rule 26"). See also
Blair v. City of Worcester, 522 F.3d 105, Ill (1st Cir. 2008); Monteiro v. San Nicolas, S.A., 254
F.2d 514, 516-17 (2d Cir. 1958) (holding that discovery was appropriate on disputed issues of
service of process). The parties do not dispute that if the person who in fact received the copies of
the summons and complaint resided at the residence, then service would have been valid under
Florida or Federal law on May 7, 2008.1 See National Development Co. v. Triad Holding Corp.
930 F.2d 253 (2d Cir. 1991) (upholding service of process on housekeeper of defendant's New York
apartment, under Fed.R.Civ.P. 4(d)(1) [now 4(e)(2)], because the defendant was actually living in
the apartment at the time service was effected). Alternatively, if the extraordinary difficulties
encountered in serving Mr. Epstein were the result of Mr. Epstein's deliberate avoidance or
' Defendant notes that under Rule 4(e) there is no priority between alternative methods of service.
This means that Plaintiff has the option of perfecting service under either federal law, the law of the
forum state, or the law of the state where service is made: "Either may be turned to with no
attempted prior resort to the other." Fed.R.Civ.P. 4 (Commentary C4-22). It does not stand,
however, for the proposition that the defendant can accept service under New York law, while
ignoring valid service under Florida or Federal law. Accordingly, once valid service was made on
Defendant Epstein under Federal or Florida law on May 7, 2008, Defendant was required to answer
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deception, while knowing of the lawsuit, then it would likewise be appropriate to find good service
and a default. See Keevan & Son , Inc. v. Callier Pipe & Tube, Inc., 107 F.R.C. 665, 671-72
(S.D. Fl.a. 1985) (le]ffective service is most likely found when a defendant has engaged in
deception to avoid service of process"). Based on what Mr. Barnett's Affidavit does not disclose,
the entry of default judgment is appropriate. In the alternative, Plaintiff should be granted discovery
to determine whether service was proper under Florida or Federal law. Plaintiff would at a
minimum like to take the depositions of Mr. Barnett and Mr. Epstein with regard to the service of
process issues that have arisen in this matter.
Conclusion
Based on the foregoing, Plaintiff requests that this Court allow Plaintiff to take discovery on
the issue of service of process; conduct an evidentiary hearing on the validity of service under
Florida or Federal law; that a default judgment be entered; the amounts set forth in the judgment be
assessed by a jury after hearing; and such other and further relief as this Court deems just and
proper.
Dated: June 25, 2008. Respectfully submitted,
By: s/ Jeffrey M. Herman
Jeffrey M. Herman (FL Bar No. 521647)
iherman @hermanlaw.com
Stuart S. Mennelstein (FL Bar No. 947245)
[Email Redacted]
Adam D. Horowitz (FL Bar No. 376980)
ahorowitz@ hermanlaw.com
HERMAN & MERMELSTEIN, P.A.
Attorneys for Plaintiffs Jane Doe
18205 Biscayne Blvd., Suite 2218
Miami, Florida 33160
Tel: [Phone Redacted]
or otherwise respond to the Complaint by May 27, 2008 to avoid default, which he failed to do.
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CERTIFICATE OF SERVICE
I hereby certify that on June 25, 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
to all parties on the attached Service List in the manner specified, either via transmission of Notices
of Electronic Filing generated by CM/ECF or in some other authorized manner for those parties who
are not authorized to receive electronically Notices of Electronic Filing.
/s/ Jeffrey M. Herman
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SERVICE LIST
DOE vs. JEFFREY EPSTEIN
CASE NO.: 013-CV-80380-NIARRA/
United States District Court. Southern District of Florida
Jack Alan Goldberger
[Email Redacted]
/s/ Jeffery M. Herman
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