Court Records
Case 9:08-cv-80380-KAM Document 54 Entered on FLSD Docket 10/06/2008 Page 1 of 10
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80380-MARRA
JANE DOE NO. 4
Plaintiff,
v.
JEFFREY EPSTEIN
Defendant.
DEFENDANT EPSTEIN'S MOTION TO DISMISS AND MOTION FOR MORE
DEFINITE STATEMENT DIRECTED TO PLAINTIFF'S AMENDED COMPLAINT
Defendant, JEFFERY EPSTEIN, by and through his undersigned counsel, moves
to dismiss and for more definite statement of Plaintiff JANE DOE NO. 4's Amended
Complaint. Rules 12(b)(6), and 12(e) and (f), Fed.R.Civ.P. (2008). In support of his
motion, Defendant states:
Introduction
Defendant is filing similar motions to dismiss and for more definite statement
directed to the Amended Complaints filed against Defendant in this Court in JANE DOE
NO. 2, JANE DOE NO. 3, JANE DOE NO. 4 and JANE DOE NO. 5. The motions are
directed to the Counts for "Sexual Assault and Battery," and "Coercion and Enticement
to Sexual Activity in Violation of 18 U.S.C. §2422" in each of the respective complaints.
However, there are distinctions in the four motions filed based on the complaint
allegations. For example, Defendant challenges the Plaintiffs' allegations as to assault
in all four actions, and challenges the battery allegations in JANE DOE NOS. 2 and 3,
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but not in JANE DOE NOS. 4 and 5. Defendant moves to dismiss the §2422 count in all
four actions.
Motion
1. Counts I and III of the Amended Complaint are required to be dismissed for
failure to state a claim upon which relief can be granted. Rule 12(b)(6). Plaintiff has
failed to allege sufficient factual allegations in the Counts and instead alleges labels and
conclusions, and an attempted formulaic recitation of the elements in each Count.
2. In the alternative, Defendant seeks more definite statement of Count I and III. In
Count I, the Plaintiff is required to more definitely allege in the context of the claim for
assault underlying factual allegations pertaining to the creation in Plaintiff of "imminent
fear of peril;"; what EPSTEIN said and did, if anything, to create fear and apprehension
in Plaintiff. In Count III, Plaintiff is required to more definitely state the underlying factual
allegations to support her claim as set forth in the statute, 18 U.S.C. §2422(b) and
§2455. Rule 12(e). See discussion of law below herein.
3. Also, Plaintiff's reference in Count III to 28 U.S.C. §2255, pertaining to habeas
corpus proceedings is required to be stricken as immaterial. Rule 12(f). Plaintiff is
required to more definitely state what statutory provision she is relying on. Rule 12 (e).
WHEREFORE, Defendant respectfully requests that this Court dismiss Counts I and
III, strike the immaterial statutory reference, and require Plaintiff to more definitely plead
the underlying elements of her claims.
Supporting Memorandum of Law
Standard on Rule 1283)(6) Motion To Dismiss
As established by the Supreme Court in Bell Atlantic Corp. V. Twombly, 127
S.Ct. 1955 (2007), a motion to dismiss should be granted if the plaintiff does not plead
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"enough facts to state a claim to relief that is plausible on its face." Id, at 1974.
Although the complaint need not provide detailed factual allegations, the basis for relief
in the complaint must state "more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." Id, at 1965. Further, "[f]actual
allegations must be enough to raise a right to relief above the speculative level ... on the
assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id.
On a motion to dismiss, the well pleaded allegations of plaintiff's complaint are taken as
true and construed in the light most favorable to the plaintiff. M.T.V. v. DeKalb County
Sch. Dist., 446 F.3d 1153, 1156 (11th Cir.2006).
Significantly, the Supreme Court in Bell Atlantic Corp. V. Twombly abrogated the
often cited observation that "a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove not set of facts in
support of his claim that would entitle him to relief." Id, (abrogating and quoting Conley
a, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). The Supreme
Court rejected the notion that "a wholly conclusory statement of claim [can] survive a
motion to dismiss whenever the pleadings le[ave] open the possibility that a plaintiff
might later establish some 'set of [undisclosed] facts' to support recovery." Id. As
explained by the Supreme Court in Bell Atlantic Corp., supra at 1664-65:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, ibid.; Sanivan v. American Bd. of
Psychiatry and Neurology. Inc. 40 F.3d 247, 251 (C.A.7 1994), a plaintiffs
obligation to provide the "grounds" of his "entitle[ment] to relief" requires
more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286,
106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts "are
not bound to accept as true a legal conclusion couched as a factual
allegation"). Factual allegations mulainougiaraise a right to relief
above the speculative level, see 5 C. & A. Federal Practice and
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Procedure § 1216, pp. 235-236 (3d ed.2004) (hereinafter.. &M)
("[T]he pleading must contain something more ... than ... a statement of fads
that merely creates a suspicion [of] a legally cognizable right of action"), on
the assumption that all the allegations in the complaint are true (even if
doubtful in fact), see, e.g., Swierkiewicz v. Sorema rsiglisug U.S. 506, 508,
n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. 490 U.S. 319,
327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (" Rule 12(b)(6) does not
countenance ... dismissals ba judge's disbelief of a complaint's
factual allegations"); Scheuer v. 416 U.S. 232, 236, 94 S.Ct. 1683,
40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it
appears "that a recovery is very remote and unlikely").
Pursuant to Rule 12(e), a party may move for more definite statement of a
pleading to which a responsive pleading is allowed where the pleading "is so vague or
ambiguous that the party cannot reasonably frame a response." The motion is required
to point out the defects and the desired details. Id.
Count I - "Sexual Assault and Battery" is subiect to dismissal as Plaintiff has
failed to state a claim upon which relief can be granted.
It is well settled that this Court is to apply Florida substantive law in this action.
Erie R.Co. v. Tompkins 58 S.Ct. 817 (1938). Pursuant to Florida law, although the term
"assault and battery" is most commonly referred to as if it were a legal unit, or a single
concept, "assault and battery are separate and distinct legal concepts, assault being the
beginning of an act which, if consummated, constitutes battery." 3A Fla.Jur.2d Assault
§1. An assault and battery are intentional acts. See generally, Spivey v. Battaglia 258
So.2d 815 (Fla. 1972); and Travelers Indem. Co. v. PCR. Inc., 889 So.2d 779 (Fla.
2004).
An "assault" is an intentional, unlawful offer of corporal injury to another by force,
or exertion of force directed toward another under such circumstances as to create a
reasonable fear of imminent peril. See Lay v. Kremer 411 So.2d 1347 (Fla. 1st DCA
1982). It must be premised upon an affirmative act - a threat to use force, or the actual
exertion of force. See 3A Fla.Jur.2d Assault §1("The essential element of the tort of
assault is the violence offered, and not actual physical contact.").
As further explained in Florida Jurisprudence. 2d, Assault §1 -
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An assault is defined as an intentional unlawful offer of corporal
injury to another by force, or force unlawfully directed toward the person of
another, under circumstances as to create a fear of imminent peril,
coupled with the apparent present ability to effectuate the attempt. At
common law, a tortious assault is an act that puts another in reasonable
apprehension of immediate bodily harm.
In ¶14 of her Amended Complaint, Plaintiff does plead the requisite
"touching" element of "battery," so that aspect of the assault and battery claim is not
being challenged. With the standard of pleading established in Twombly, supra, in the
context of assault, Plaintiff has failed to state a claim upon which relief can be granted.
Rule 12(b)(6). As to the elements of assault, here are no factual allegations as to what
was said or done to Plaintiff such that it constituted an "intentional, unlawful offer of
corporal injury to another by force, or exertion of force directed toward another under
such circumstances as to create a reasonable fear of imminent peril." See ¶14 of Am.
Comp. In fact, ¶14 alleges that JANE DOE NO. 4 "returned on many occasions to the
Palm Beach mansion to provide Epstein with massages." Allegations as to
circumstances creating a fear of imminent peril are lacking.
Under applicable law, Plaintiff is required to give more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action. Twombly
supra. Plaintiff is required to allege the facts of what was done to her; what EPSTEIN
said and did, if anything, to create fear and apprehension in Plaintiff.
As noted in the introduction and as this Court is well aware, there is more than
one action brought against this Defendant attempting to allege similar sounding claims.
With all due respect, the details as to a particular claim asserted by a particular Plaintiff
are important to give this Defendant fair notice of Plaintiff's claim so he may properly
respond. Accordingly, under applicable law, Plaintiff has failed to state a claim for
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"sexual assault and battery" has Plaintiff has failed to plead requisite factual allegations
concerning the assault.
In the alternative to dismissing Count I, Defendant requests that Plaintiff be
required to give more definite statement as to what was done to her; what EPSTEIN
said and did, if anything, to create fear and apprehension in Plaintiff; in pleading the
elements of assault. Rule 12(e).
Count Ill — "Coercion and Enticement to Sexual Activity in Violation of 18
U.S.C. §2422" - is subiect to dismissal as Plaintiff has failed to state a claim
upon which relief can be granted. Rule 12(b)(6). Count III also contains an
immaterial reference to 28 U.S.C. §2255, which is required to be stricken
and more definitely stated.
Count III of Plaintiff's Complaint attempts to assert a claim for "Coercion and
Enticement to Sexual Activity in Violation of 18 U.S.C. §2422." In her prayer for relief in
Count III, Plaintiff "demands judgment against Defendant Jeffrey Epstein for all
damages available under 28 U.S.C. §2255(a), ."
Although the reference to "28 U.S.C. §2255," pertaining to habeas corpus
proceedings - federal custody and remedies on motion attacking sentence, is probably
a typographical error by Plaintiff, and the reference to "28" was meant to be "18,"
Defendant requests that Plaintiff correct this error so that Defendant may have fair
notice of the claim Plaintiff is attempting to assert. Whether or not the "28" is
typographical error, Defendant is still entitled to dismissal of the count.
The applicable version of these statutory provisions, (pre-2006 Amendments, as
the Amended Complaint alleges a time period of "in or about 2002-2003," ¶9), provides:
CHAPTER 117-TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY
AND RELATED CRIMES
§ 2422. Coercion and enticement
(a) Whoever knowingly persuades, induces, entices, or coerces any
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individual to travel in interstate or foreign commerce, or in any Territory or
Possession of the United States, to engage in prostitution, or in any sexual
activity for which any person can be charged with a criminal offense, or
attempts to do so, shall be fined under this title or imprisoned not more than
20 years, or both.
(b) Whoever, using the mail or any facility or means of interstate or foreign
commerce, or within the special maritime and territorial jurisdiction of the
United States knowingly persuades, induces, entices, or coerces any
individual who has not attained the age of 18 years, to engage in prostitution
or any sexual activity for which any person can be charged with a criminal
offense, or attempts to do so, shall be fined under this title and imprisoned
not less than 5 years and not more than 30 years.'
CHAPTER 110-SEXUAL EXPLOITATION AND OTHER ABUSE OF
CHILDREN
§ 2255. Civil remedy for personal injuries
(a) Any minor who is 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 may sue in any
appropriate United States District Court and shall recover the actual
damages such minor sustains and the cost of the suit, including a reasonable
attorney's fee. Any minor as described in the preceding sentence shall be
deemed to have sustained damages of no less than $50,000 in value.
(b) Any action commenced under this section shall be barred unless the
complaint is filed within six years after the right of action first accrues or in
the case of a person under a legal disability, not later than three years after
the disability.
' The above-quoted version of 18 U.S.C. §2422 is the post-2003 amendments which
amended the statute as follows:
2003 Amendments. Subsec. (a). Pub.L. 108-21, 4 103(a)(2)(A), struck out "10"
and inserted "20".
Subsec. (b). Pub.L. 108-21.6 103(a)(2)(B), struck out "15" and inserted "30".
Pub.L. 108-21, 4 103(b)(2)(A)(i) struck out ", imprisoned" and inserted "and
imprisoned not less than 5 years and".
Pub.L. 108-21, 4 103(b)(2)1A1(ii) struck out ", or both" at end of subsec. (b).
Defendant is not waiving his right to claim that the pre-2003 amended version of the
statute is applicable in this action. However, for purposes of this motion, the relevant
statutory language is the same.
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Relevant to Plaintiff's complaint, 18 U.S.C. 2255(a) creates a civil remedy for "a
minor who is a victim of a violation of section ... 2422 ... of this title and who suffers
personal injury as a result of such violation ... ." Plaintiff has failed to plead any factual
allegations whatsoever pertaining to violations of 18 U.S.C. 2422. Rather, Plaintiff has
alleged conclusory allegations simply attempting to track parts of the statutory language
in the statute without underlying factual allegations pertaining to the Plaintiff and any
conduct by Defendant. See ¶29 of Am. Comp. Plaintiff's allegations, (or lack of factual
allegations), are precisely what the standard set forth by the Supreme Court in Bell
Atlantic Corp. prohibits — Plaintiff's complaint alleges only "labels and conclusions, and
a (partial) formulaic recitation of the elements."
First, the Amended Complaint fails to designate whether Plaintiff is relying on
§2422(a) or §2422(b). Second, although the complaint does contain a partial tracking of
the language in 18 U.S.C. §2422(b), it contains absolutely no factual allegations
concerning the requisite "using the mail or any facility or means of interstate or foreign
commerce" by Plaintiff to state a cause of action based on a violation of 18 U.S.C.
2422(b). As well, there are no underlying factual allegations involving this Plaintiff as to
the requisite elements that a defendant knowingly persuaded, induced, enticed, or
coerced any individual (Plaintiff in this case) who has not attained the age of 18 years,
to engage in prostitution or any sexual activity for which any person can be charged with
a criminal offense, or attempted to do so. See 18 U.S.C. 2422(b); i.e. with what criminal
offense could Plaintiff and Defendant have been charged. Again, a Plaintiff cannot
simply track the language of a statute without some underlying factual allegations to
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state a claim upon which relief can be granted. Accordingly, Count Ill is required to be
dismissed, and the reference to 28 USC 2455 be stricken.
In the alternative, Plaintiff should be required to more definitely state the
underlying factual allegations to support her claim as set forth in the statute, 18 U.S.C.
§2422(b) and §2455.
Conclusion
As discussed above herein, under the pleading standard established in Twombly,
supra, and law concerning the elements of Count I and Ill, Plaintiff has failed to state
claims upon which relief can be granted. Rule 12(b)(6). Plaintiff's complaint lack
underlying factual allegations and, thus, Plaintiff is required to more definitely state the
requisite factual allegations. Finally, Plaintiff should correct any improper statutory
references.
Certificate of Service
I HEREBY CERTIFY that a true copy of the foregoing was electronically filed 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 in the
manner specified by CM/ECF on this ht6 day of October 2008:
Adam D. Horowitz, Esq.
Jeffrey Marc Herman, Esq.
Stuart S. Mermelstein, Esq.
18205 Biscayne Boulevard
Suite 2218
Miami, FL 33160
[Phone Redacted]
Fax: [Phone Redacted]
a horowitzehermanlaw.com
jhermanehermanlaw.com
IriveraChermanlaw.com
Counsel for Plaintiff Jane Doe #4
Jack Alan Goldberger, Esq.
Atterbury Goldberger & Weiss, P.A.
250 Australian Avenue South
Suite 1400
West Palm Beach, FL 33401-5012
[Phone Redacted]
Fax: [Phone Redacted]
jaciesqebellsouth.net
Counsel for Defendant Jeffrey Epstein
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Eifel R. Tein, Esq.
Tein, P.L.
3059 Grand Avenue, Suite 340
Coconut Grove, FL 33133
[Phone Redacted]
Fax: [Phone Redacted]
Counsel for Defendant Jeffrey Epstein
tein(alewistein.com
Respectfully submitt
By:
ROBERT D CRITTON, JR., ESQ.
Florida Ba o. 224162
rcritebcl aw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
moikeebelclaw.com
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Flagler Drive, Suite 400
West Palm Beach, FL 33401
561/842-2820 Phone
561/515-3148 Fax
(Co-Counsel for Defendant Jeffrey Epstein)
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