Court Records
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FL
CASE NO.: 08-CV-80994-Marra/iiii
JANE DOE NO. 6
Plaintiff,
v.
JEFFREY EPSTEIN,
Defendant.
DEFENDANT'S, EPSTEIN, MOTION TO DISMISS & FOR MORE DEFINITE STATEMENT
DIRECTED TO PLAINTIFF JANE DOE NO.6'S COMPLAINT
Defendant, JEFFERY EPSTEIN, by and through his undersigned counsel, moves
to dismiss and for more definite statement of Plaintiff JANE DOE NO. 6's Complaint.
Rules 12(b)(6) and 12(e), Fed.R.Civ.P. (2008). In support of his motion, Defendant
states:
Introduction
Defendant previously filed motions to dismiss and for more definite statement
directed to the Amended Complaints filed against Defendant in this Court in JANE DOE
NO. 2 (Case No. 08-CV-80119-Marra), JANE DOE NO. 3 (Case No. 08-CV-
80232-Marra, ), JANE DOE NO. 4 (Case No. 08-CV-80380-Marra ),
and JANE DOE NO. 5 (Case No. 08-CV-80381-Marra). Defendant is also
filing similar motions in the actions filed by JANE DOE NO. 6 (Case No. 08-CV-80994-
Marra/Johnsn), and JANE DOE NO. 7 (Case No. 08-CV-80993-Hurley. ). The
motions are directed to the Counts for Count I - "Sexual Assault and Battery," andCount
III - "Coercion and Enticement to Sexual Activity in Violation of 18 U.S.C. §2422" in each
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of the respective complaints. However, there are distinctions in the six motions filed
based on the complaint allegations. For example, in the previously filed four motions
(Jane Doe Nos. 2 through 5), Defendant challenged the Plaintiffs' allegations as to
assault in all four actions, and challenged the battery allegations in JANE DOE NOS. 2
and 3, but not in JANE DOE NOS. 4 and 5. Defendant moved to dismiss the §2422
count in all four of the JANE DOE Nos. 2 through 5 actions. As to JANE DOE NO. 6,
Defendant challenges the battery allegations, but does not as to JANE DOE NO. 7 as
the underlying facts of the requisite "touching" are alleged. Defendant challenges the
18 U.S.C. §2422 count in both JANE DOE NO. 6 and NO. 7.
Motion
1. Counts I and III of JANE DOE NO. 6's 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 or in conjunction with, Defendant seeks more definite statement
of Count I and III. In Count I, the Plaintiff is required to more definitely allege what was
done to her; what EPSTEIN said and did, if anything, to create fear and apprehension in
Plaintiff; what was the intentional offensive or harmful contact in pleading the elements
of assault and battery. 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.
WHEREFORE, Defendant respectfully requests that this Court dismiss Counts I and
III, and require Plaintiff to more definitely plead the underlying elements of her claims.
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Supporting Memorandum of Law
Standard on Rule 12(b)(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
"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
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 plaintiff's
obligation to provide the "grounds" of his "entitle[ment] to relief" requires
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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 mu§Lbgjnougbja raise a right to relief
above the speculative level, see 5 C. & A. , Fed cti
Procedure § 1216, pp. 235-236 (3d ed.2004) (hereinafter & )
("ripe pleading must contain something more ... than ... a statement of facts
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 Nisai ug U.S. 506, 508,
n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v.MM 490 U.S. 319,
327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (" Rule 12(b)(6) does not
countenance ... dismissals bas 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 subject 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 FIa.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).
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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.").
Tort of "battery" consists of the infliction of a harmful or offensive contact upon
another with the intent to cause such contact or the apprehension that such contact is
imminent. Quilling v. Price, 894 So.2d 1061 (Fla. 5th DCA 2005); v. Atlantic
Federal Savings & Loan 454 So.2d 52 (Fla. 4th DCA 1984)("a battery consists of the
intentional infliction of a harmful or offensive contact upon the person of another"). See
3A FIa.Jur.2d Assault §1.
With the standard of pleading established in Twomblv, supra, in the context of
the elements for assault and battery, 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 ¶13 of Comp. The same is true for the claim of battery. Plaintiff
makes the general allegation that "he (Defendant) sexually assaulted Jane." The other
allegations in ¶13 pertain to what Plaintiff allegedly did. 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. Twomblv supra. Plaintiff is required to allege the facts
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of what was done to her; what EPSTEIN said and did, if anything, to create fear and
apprehension in Plaintiff; what was the intentional offensive or harmful contact?
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.
The details as to a particular claim asserted by a particular Plaintiff are important to give
this Defendant fair notice of Plaintiffs claim so he may properly respond. Accordingly,
under applicable law, Plaintiff has failed to state a claim for sexual assault and battery.
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; what was the
intentional offensive or harmful contact in pleading the elements of assault and battery.
Rule 12(e).
Count III — "Coercion and Enticement to Sexual Activity in Violation of 18
U.S.C. 62422" - is subject to dismissal as Plaintiff has failed to state a claim
upon which relief can be wanted. Rule 12(b)(6).
Count III of Plaintiffs 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,
Plaintiff demands judgment against EPSTEIN "for all damages available under 18
U.S.C. §2255(a), ." Count III is required to be dismissed as Plaintiff has failed to
state a claim under the statutes for which relief can be granted.
The applicable version of these statutory provisions, (pre-2006 Amendments, as
the Amended Complaint alleges a time period of "in or about 2004," ¶9), provides:
CHAPTER 117-TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY
AND RELATED CRIMES
§ 2422. Coercion and enticement
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(a) Whoever knowingly persuades, induces, entices, or coerces any
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.
Relevant to Plaintiffs 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 ¶28 of Comp. Plaintiffs allegations, (or lack of factual
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allegations), are precisely what the standard set forth by the Supreme Court in Bell
Atlantic Corp. prohibits — Plaintiffs complaint alleges only "labels and conclusions, and
a (partial) formulaic recitation of the elements."
First, the 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 conceming
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 state a claim
upon which relief can be granted. Accordingly, Count III is required to be dismissed.
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 III, Plaintiff has failed to state
claims upon which relief can be granted. Rule 12(b)(6). Plaintiffs complaint lacks
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underlying factual allegations and, thus, in the alternative to dismissal or in conjunction
with, Plaintiff is required to more definitely state the requisite factual allegations.
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 141 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]
ahorowitza hermanlaw.com
jhermanahermanlaw.com
Irivera(@hermanlaw.com
Counsel for Plaintiff Jane Doe #2
Respectfully submitte
By:
ROBERT D. ITTON, JR., ESQ.
Florida Bar o. 224162
rcritabcIclaw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpike(bcIclaw.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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