Court Records
Case 9:08-cv-80380-KAM Document 23 Entered on FLSD Docket 07/08/2008 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.
EPSTEIN'S REPLY IN SUPPORT OF
MOTION (DE 111 TO SET ASIDE CLERK'S DEFAULT
Discovery on service of process would be extraordinary,' unnecessary and a
waste of resources.
Mr. Barnett's affidavit is dispositive: He was the one who received the
summons at Epstein's house, but he did not reside there. If the plaintiff had
offered some evidence (e.g., a phone-book entry, a Google search-result, an
affidavit, etc.) that Mr. Barnett did reside there, or that some other person, who did
reside there, received the summons - - and it we were contesting service altogether
See Fed. R. Civ. P. 26(d)(1) ("A party may not seek discovery from any source before the
parties have conferred as required by Rule 26(t), except in a proceeding exempted from initial
disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court
order.").
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- - perhaps discovery would be appropriate. Instead, the plaintiff ventures a
guess (unsupported by affidavit or other evidence) that Mr. Epstein "instructed
[Barnett] to answer the door on May 7, 2008 and take service anonymously" (DE
16 at 2).
Such rank speculation is insufficient to warrant "pre-discovery discovery"
on service of process. To conclude otherwise would create a rule that any plaintiff
who could not identify the person who answered the door would be entitled to pre-
discovery discovery. Cf. Patterson v. No. 3:06cv476, 2008 WL 219965, at
*8 (W.D.N.C. Jan. 24, 2008) (refusing discovery where information sought was
irrelevant to the issue of whether service of process was valid); Centennial LLC v.
Becker, No. Civ.A. 3:97-CV-1126, 2000 WL 35508748, at *5 n.2 (D.S.C. Nov. 14,
2000) (stating that "Plaintiffs speculation, grounded in nothing but a 'hunch' or a
prayer, is simply insufficient to thwart the court's finding [based on the
defendant's uncontroverted sworn statement]," and adding that "Plaintiff[, instead
of] provid[ing an] affidavit" to challenge the defendant's position, put forth an
"entire argument . . . grounded in nothing more substantial than idle and baseless
speculation").
As explained in our motion, because Mr. Barnett did not reside at Mr.
Epstein's house, substitute service on Mr. Barnett was effective only under New
York rules. They gave Mr. Epstein until June 23 to respond. Mr. Epstein timely
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Case 9:08-cv-80380-KAM Document 23 Entered on FLSD Docket 07/08/2008 Page 3 of 5
responded on June 20, by filing a motion to stay (DE 13). Accordingly, he is not
in default and the clerk's default should be set aside.
Respectfully submitted,
TEIN, P.L.
3059 Grand Avenue, Suite 340
Coconut Grove, Florida 33133
Tel: [Phone Redacted]
Fax: [Phone Redacted]
By: /s/ Michael R. Tein
GUY A.
Ha. Bar No. 623740
MICHAEL R. TEIN
Ha. Bar No. 993522
[Email Redacted]
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
Fla. Bar No. 262013
[Email Redacted]
Attorneys for Defendant Jeffrey Epstein
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Case 9:08-cv-80380-KAM Document 23 Entered on FLSD Docket 07/08/2008 Page 4 of 5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 7, 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 all counsel of record identified
on the following service list via transmission of Notices of Electronic Filing
generated by CM/ECF.
/s/ Michael R. Tein
Michael R. Tein
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SERVICE LIST
Jeffrey M. Herman, Esq.
Stuart S. Mermelstein, Esq.
Adam D. Horowitz, Esq.
HERMAN & MERMELSTEIN, P.A.
182 Biscayne Blvd., Suite 2218
Miami, FL 33160
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