Court Records
Case 9:08-cv-80119-KAM Document 41 Entered on FLSD Docket 09/22/2008 Page 1 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80119-MARRa
JANE DOE NO. 2,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
PLAINTIFF'S MEMORANDUM IN RESPONSE
TO DEFENDANT'S MOTION TO DISMISS
Plaintiff, Jane Doe No. 2, ("Jane" or "Jane Doe"), by and through her undersigned counsel,
files this Memorandum in Response to Defendant's Motion to Dismiss, and states as follows:
1. Defendant, Jeffrey Epstein is alleged to have sexually abused Jane Doe when she was
a minor. The Complaint is in two Counts: Count I is labeled "Sexual Assault", and alleges an
intentional ton based on the actions of Jeffrey Epstein; Count II alleges the tort of intentional
infliction of emotional distress based on the same factual allegations. Defendant Epstein has moved
to dismiss only Count I of the Complaint, contending that Plaintiff has failed to state a claim.
Simultaneously herewith, Plaintiff intends to file an Amended Complaint which substantially revises
Count I and moots the Defendant's Motion to Dismiss.'
2. In any event, the Complaint sufficiently alleged a claim for sexual assault and battery.
' The Amended Complaint also adds as Count III a federal claim against Defendant Epstein under 18
U.S.C. §§2422 and 2255. Under Fed.R.Civ.P. 15(a), a party may amend the pleading once as a
matter of course before being served with a "responsive pleading". Defendant has not to date filed a
"responsive pleading" in this case within the meaning of Fed.R.Civ.P. 7(a). It is established in the
courts of the Eleventh Circuit that a motion to dismiss is not a "responsive pleadin " and does not
affect a plaintiffs right to amend the pleading once as a matter of course. v. Board of
Regents, 477 F.3d 1282, 1291 (11th Cir. 2007).
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The gravamen of the claims in Count I is set forth in paragraph 16 of the Complaint: "Epstein
tortiously assaulted Jane Doe sexually. Epstein's acts were intentional, unlawful, offensive and
harmful."
3. Count I does not purport to be brought under the criminal statutes? Whether a
Complaint states a claim for relief is not based on labels or conclusions; rather it is determined by
the factual allegations, which "must be enough to raise a right to relief above the speculative level."
Bell Atlantic Corp. v. Twombley 127 5. Ct. 1955, 1965 (2007). Here, the factual allegations
establish an intentional tort claim for sexual assault and battery.3 See Paul v. Holbrook, 696 So.2d
1311 (Fla. 5th DCA 1997) ("[a] 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"); Scelta v. Delicatessen Support Services, Inc., 57 F.Supp. 2d 1327, 1358-59 (M.D. Fla.
1999) (allegation that defendant attempted to put his hands down plaintiffs dress, and that there was
an actual and intentional touching, sufficient to state a claim for battery); Hogan v. Tavzel, 660
So.2d 350 (Fla. 5th DCA 1995) (tortfeasor may be liable for battery for infecting another with a
sexually transmitted disease); see also Restatement (Second) of Torts Assault, § 21 (1965) (stating
that an assault occurs when a person "acts intending to cause a harmful or offensive contact with the
person of the other, or an imminent apprehension of such contact, and the other is thereby put in
such imminent apprehension").
=Chapter 800 of the Florida Statutes is mentioned in the Complaint 118) because conduct against a
person in violation of the criminal laws of the State generally give rise to a civil claim for intentional
tort. Count I does not purport to bring a separate civil claim for violation of a strictly criminal
statute.
3 Assault and battery are closely related common law intentional torts that are commonly alleged
together. See Herzfeld v. Herzfeld, 781 So.2d 1070 (Fla.2001) (noting that laintiff alleged
intentional tort of "assault and battery" based on allegations of sexual abuse). v. Atlantic
Federal Savings & Loan 454 So.2d 52 (Fla. 4th DCA 1984) (holding that a cause of action for
assault and battery cannot be based entirely on an omission).
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4. Epstein's conduct as alleged in this case of masterbating during the massage,
directing the Plaintiff to remove her clothes, and touching the Plaintiff, constitutes the intentional
tort of assault and battery. Accordingly, even if the Complaint had not been amended, it sufficiently
alleges facts establishing an assault and battery.
Based on the foregoing, Defendant's Motion to Dismiss is moot, and, in any event, not well
founded, and therefore should be denied.
Dated: September 22, 2008. Respectfully submitted,
By: s/ Jeffrcy M. Herman
Jeffrey M. Herman (FL Bar No. 521647)
[Email Redacted]
Stuart S. Mennelstein (FL Bar No. 947245)
[Email Redacted]
Adam D. Horowitz (FL Bar No. 376980)
[Email Redacted]
HERMAN & MERMELSTEIN, P.A.
Attorneys for Plaintiffs Jane Doe
18205 Biscayne Blvd., Suite 2218
Miami, Florida 33160
Tel: [Phone Redacted]
Fax: [Phone Redacted]
CERTIFICATE OF SERVICE
I hereby certify that on September 22, 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.: 08-CV-80119-MARRA/
United States District Court, Southern District of Florida
Jack Alan Goldberger, Esq.
[Email Redacted]
Michael R. Tein, Esq.
[Email Redacted]
Robert D. Critton, Esq.
[Email Redacted]
Michael Pike, Esq.
[Email Redacted]
/s/ Jeffrey M. Herman
HERMAN & MERMELSTEIN. P. A. www.hermanlaw.com
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