Court Records
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 1 of 50
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
JANE DOE NO. 2,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 3,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 4,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 5,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
CASE NO.: 08-CV-80119-MAR
CASE NO.: 08-CV-80232-MARRA
CASE NO.: 08-CV-80380-MAR
CASE NO.: 08-CV-80381-MARRA
FILED by D C
AUG 0 4 2009
511:01 1.1 LA, 41,1eRE
5. D. CT.
SD O. •IA. w•ni
EFTA02745820
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 2 of 50
JANE DOE NO. 6,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 7,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
C.M.A.,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
CASE NO.: 08-CV-80994-MARRA=.1
CASE NO.: 08-CV-80993-MARRA I
CASE NO.: 08-CV-80811-MARRA
CASE NO.: 08-CV-80893-MARRA
2
EFTA02745821
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 3 of 50
DOE II,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 101,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 102,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
CASE NO.: 09-CV-80469-MARRAi
CASE NO.: 09-CV-80591-MARRAi
CASE NO.: 09-CV-80656-MARRAa
PLAINTIFF, C.M.A.'S, EMERGENCY MOTION FOR PROTECTIVE ORDER
REGARDING THE DEPOSITIONS OF SUSAN POPE AND DR. SERGE THYS AND
INCORPORATED MEMORANDUM OF LAW
Plaintiff, C.M.A., by and through her undersigned attorneys, hereby files her
Emergency Motion for Protective Order Regarding the Depositions of Susan Pope and
Dr. Serge Thys and Incorporated Memorandum of Law, and in support there of states
as follows:
3
EFTA02745822
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 4 of 50
1. This is an action to recover money damages against Defendant,
JEFFREY EPSTEIN, for acts of sexual abuse and prostitution committed upon the then-
minor, C.M.A.
2. On Friday, July 31, 2009, Defendant unilaterally scheduled the deposition
of Susan Pope for Thursday, August 6, 2009, at 10:00 a.m., and the deposition of Dr.
Serge Thys on August 31, 2009, at 3:15 p.m. (Attached hereto as Exhibits "A" and "la
Pope is a mental health therapist and Dr. Thys is a psychiatrist.
3. Plaintiff has plead thirty separate counts against EPSTEIN for separate
incidences of abuse committed by EPSTEIN against Plaintiff pursuant to 18 U.S.C.
§2255. 18 U.S.C. §2255, entitled "Civil remedy for personal injuries", creates a private
right of action for minor children who were the victims of certain enumerated sex
offenses. 18 U.S.C. §2255 also creates a statutory floor for the amount of damages a
victim can recover for a violation of same. Plaintiff has also alleged a single count of
Sexual Battery against EPSTEIN.
4. There presently exists between the Plaintiff and EPSTEIN a disagreement
as to whether the statutory damage floor established in 18 U.S.C. §2255 is recoverable
for each commission of an enumerated sex offenses listed in 18 U.S.C. §2255, or
whether the statutory damage floor can only be enforced once, regardless of how many
times a defendant perpetrates an enumerated sex offense against a minor victim.
5. This disagreement between the parties is properly the subject of
Defendant's Motion to Dismiss First Amended Complaint For Failure to State a Cause
I Although Defendant's Certificate of Service states that the Notices were sent via email and U.S. Mail on July 30, they were not c-mailed to undersigned until the following day, July 31m.
4
EFTA02745823
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 5 of 50
of Action, and Motion For More Definite Statement; Motion to Strike, and Supporting
Memorandum of Law (Attached hereto as Exhibit "C") which is currently pending before
this Court.
6. In the event that the Court rules that Plaintiff can recover the statutory
damage floor established in 18 U.S.C. §2255 for each proven incident of abuse
committed by EPSTEIN upon her, Plaintiff intends to rely exclusively on the statutory
damages, rather than those damages which are available at common law. (See
Plaintiff, C.M.A.'s Conditional Notice of Intent to Exclusively Rely on Statutory Damages
Provided by 18 U.S.C. §2255 attached hereto as Exhibit "D"). If however, the Court
rules that the statutory floor applies only one time, regardless of the number of times
EPSTEIN committed an enumerated sexual offense against her, Plaintiff will be
pursuing all damages available to her at both common law and by statute.
7. Given Plaintiff's intent to rely exclusively on the statutory damages
available to her under 18 U.S.C. §2255 as outline above, Plaintiff will not be presenting
any evidence of the extent of her physical, emotional, or pecuniary injuries, beyond
evidence that she was the victim of sexual contact to which she was legally incapable of
consenting by virtue of her age (including, pain and suffering, emotional distress,
psychological trauma, mental anguish, humiliation, embarrassment, loss of self-esteem,
loss of dignity, invasion of her privacy, and loss of the capacity to enjoy life).
Accordingly, any testimony and/or discovery regarding those types of damages would
not be relevant to any material issue pending in this case.
5
EFTA02745824
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 6 of 50
8. Presently pending before the Court is Defendant EPSTEIN's Motion to
Compel Plaintiff C.M.A. to Respond to Defendant's First Request to Produce and
Answer Defendant's First Set of Interrogatories, and to Overrule Objections, and For an
Award of Defendant's Reasonable Expenses (Attached hereto as Exhibit "E").
EPSTEIN is seeking from Plaintiff the production of certain treatment records of hers
from the Susan Pope/Parent-Child Center, Inc., Dr. Serge Thys, a psychiatrist,
Dominique Hyppolite/School District of Palm Beach County, Good Samaritan Hospital,
St. Mary's Hospital, Florida Atlantic University and Gloria C. Hakkarainen, M.D.
9. Also pending before the Court is Plaintiff,
Motion for Protective Order Regarding Treatment Records From Parent-Child Center,
Inc. (Susan Pope), Dr. Serge Thys, Records of Dominique Hyppolite/School District of
Palm Beach County, Good Samaritan Hospital, St. Mary's Hospital, Florida Atlantic
University and Gloria C. Hakkareinen, M.D., With Incorporated Memorandum of Law
(DE 207) (Attached hereto as Exhibit "F").
10. Rather than allow the Court to rule on the pending motions regarding
whether C.M.A, as a victim of repeated sexual offenses at the hands of EPSTEIN,
should be subjected to further humiliation, embarrassment, and victimization, EPSTEIN
has apparently decided to forge ahead without waiting for the Court's rulings regarding
the scope of permissible discovery in this case.
11. Neither the testimony of Susan Pope/Parent-Child Center, Inc. or Dr.
Serge Thys will have any relevance whatsoever in the event that Plaintiff pursues only
those statutory damages available to her under 18 U.S.C. §2255. To the contrary, the
6
EFTA02745825
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 7 of 50
testimony from these providers regarding the confidential and private treatment would
only serve to further humiliate, embarrass, and victimize C.M.A.
12. Furthermore, C.M.A., the information sought by the Defendant is protected
by the psychotherapist-patient privilege pursuant to the Supreme Court's decision in
Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923 (1996)("All agree that a psychotherapist
privilege covers confidential communications made to licensed psychiatrists and
psychologists. We have no hesitation in concluding in this case that the federal
privilege should also extend to confidential communications made to licensed social
workers in the course of psychotherapy.") Ordinarily, a plaintiff does not place her
mental condition in controversy merely by requesting damages for mental anguish or
"garden variety" emotional distress. In order to place a party's mental condition in
controversy the party must allege a specific mental or psychiatric disorder or intend to
offer expert testimony to support their claim of emotional distress. Turner v Imperial
Stores 161 F.R.D. 89 (S.D.Cal. 1995). The evidence sought is also protected under
the substantive privacy rights recognized in Florida Statute §§90.503.
13. Accordingly, Plaintiff respectfully moves for the entry of a protective order
pursuant to Fed. R. Civ. Pro. 26(c) preventing the depositions of Susan Pope and Dr.
Serge Thys. More particularly, Plaintiff requests the entry of an order precluding the
depositions of Susan Pope and Dr. Serge Thys until such time as the Court rules on the
issue regarding whether the statutory damage floor as contained in 18 U.S.C. §2255
applies to each proven commission of an enumerated sexual offense by EPSTEIN
against CMA. Should the Court rule that 18 U.S.C. §2255 provides a per incident
7
EFTA02745826
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 8 of 50
damage floor, the testimony would have absolutely no relevance whatsoever. In the
event that the Court rules that the damage floor applies only once, the parties can then
further brief the Court as to whether C.M.A has placed her mental condition "in
controversy" such that it operates as a waiver of the psychotherapist-patient privilege.
WHEREFORE, Plaintiff, C.M.A., respectfully requests that this Court enter a
protective order preventing the depositions of Susan Pope and Dr. Serge until such time
as the Court decides whether the statutory damages pursuant to 18 U.S.C. §2255 are
available to a victim of an enumerated sexual offense on a per incident basis.
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1
Counsel for the movant has conferred via e-mail with counsel for the Defendant
regarding his position on Plaintiff's Emergency Motion for Protective Order Regarding
the Depositions of Susan Pope and Dr. Serge and Incorporated Memorandum of Law
and has advised the undersigned that he objects to the relief requested herein.
/s/ Jack P.
8
EFTA02745827
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 9 of 50
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 4rd day of August, 2009, I filed the foregoing
with the Clerk of the Court and send copies to all cou sel of record via e-mail.
Jack Scarola
Florida Ear No.: 169440
Jack P.
Florida Bar No.: 0547808
Searcy Denney Scarola Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33409
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
Attorneys for Plaintiff
9
EFTA02745828
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 10 of 50
COUNSEL LIST
Richard H. Willits, Esquire
Richard H. Willits, P.A.
2290 10th Avenue North, Suite 404
Lake Worth, FL 33461
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
Robert Critton, Esquire
Burman Critton Luttier & Coleman LLP
515 North Flagler Drive, Suite 400
West Palm Beach, FL 33414
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
Jack A. Goldberger, Esquire
Atterbury, Goldberger & Weiss, P.A.
250 Australian Avenue South
West Palm Beach, FL 33401
Phone: ([Phone Redacted]
Bruce E. Reinhart, Esquire
Bruce E. Reinhart, P.A.
250 South Australian Avenue
Suite 1400
West Palm Beach, FL 33401
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
10
EFTA02745829
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 11 of 50
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CIV-80811-MARRa
Plaintiff,
v.
Y
EPSTEIN and
Defendants,
NOTICE OF TAKING DEPOSITION
PLEASE TAKE NOTICE that the undersigned attorney will take the deposition
duces tecum of:
DEPONENT DATE & TIME LOCATION OF DEPOSITION
Susan Pope Thursday Burman Critton Luther & Coleman LLP
2001 W. Blue Heron Blvd. August 6, 2009 515 N. Flagler Drive, Suite 400
Riviera Beach, FL 33401 10:00 a.m. West Palm Beach, FL 33401
upon oral examination, before U.S. Legal Support, a Notary Public, or any other officer
authorized by law to take depositions in the State of Florida. The oral examination is
being taken for the purpose of discovery, for use at trial, or for such other purposes as are
permitted under the applicable Statutes of Rules of Court.
Robert D. Critton, Jr.
Attorney for Defendant Epstein
Certificate of Service
I HEREBY CERTIFY that a true copy of the foregoing document is being served
this day on all counsel of record identified on the following Service List via email and U.S.
Mail on this 30th day of Jul, 2009
EXHIBIT
EFTA02745830
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 12 of 50
C.M.A. v. Epstein, et al.
Page 2
Richard Horace Willits, Esq.
Richard H. Willits, P.A.
2290 10th Avenue North
Suite 404
Lake Worth, FL 33461
[Phone Redacted]
Fax: [Phone Redacted]
Counsel for Plaintiff C.M.A.
[Email Redacted]
Jack Scayla, Esq.
Jack P.., Esq.
Searcy Denney Scarola Barnhart
Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409
[Phone Redacted]
Fax: [Phone Redacted]
[Email Redacted]
[Email Redacted]
Co-Counsel for Plaintiff
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]
[Email Redacted]
Counsel for Defendant Jeffrey Epstein
Bruce Reinhart, Esq.
Bruce E. Reinhart, P.A.
& 250 S. Australian Avenue
Suite 1400
West Palm Beach, FL 33401
[Phone Redacted]
Fax: [Phone Redacted]
ecf@brucereinhar
Counsel for Defendant
Respectfully submitted,
B .
ROBERT D. CRITTON, JR., ESQ.
Florida Bar No. 224162
[Email Redacted]
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
[Email Redacted]
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Flagler Drive, Suite 400
West Palm Beach, FL 33401
561/842-2820 Phone
561/515-3148 Fax
(Counsel for Defendant Jeffrey Epstein)
EFTA02745831
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 13 of 50
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CIV-80811-MARRia
Plaintiff,
v.
JEFFREY EPSTEIN and
Defendants,
NOTICE OF TAKING DEPOSITION
PLEASE TAKE NOTICE that the undersigned attorney will take the deposition
duces tecum of:
DEPONENT
Dr. Serge Thys
2151 45m Street
West Palm Beach, FL 33401
DATE & TIME LOCATION OF DEPOSITION
Monday Burman Critton Luther & Coleman LLP
August 31, 2009 303 Banyan Blvd., Suite 400
3:15 p.m. West Palm Beach, FL 33401
upon oral examination, before U.S. Legal Support, a Notary Public, or any other officer
authorized by law to take depositions in the State of Florida. The oral examination is
being taken for the purpose of discovery, for use at trial, or for such other purposes as are
permitted under the applicable Statutes of Rules of Court.
Robert D. Critton, Jr.
Attorney for Defendant Epstein
Certificate of Service
I HEREBY CERTIFY that a true copy of the foregoing document is being served
this day on all counsel of record identified on the following Service List via email and U.S.
Mail on this 30th day of July, 2009
EXHIBIT
1
EFTA02745832
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 14 of 50
C.M.A. v. Epstein, et al.
Page 2
Richard Horace Willits, Esq.
Richard H. Willits, P.A.
2290 10th Avenue North
Suite 404
Lake Worth, FL 33461
[Phone Redacted]
Fax: [Phone Redacted]
Counsel for Plaintiff C.M.A.
[Email Redacted]
Jack Sc la, Esq.
Jack P.M, Esq.
Searcy Denney Scarola Barnhart
Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409
[Phone Redacted]
Fax: [Phone Redacted]
[Email Redacted]
[Email Redacted]
Co-Counsel for Plaintiff
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]
[Email Redacted]
Counsel for Defendant Jeffrey Epstein
Bruce Reinhart, Esq.
Bruce E. Reinhart, P.A.
& 250 S. Australian Avenue
Suite 1400
West Palm Beach, FL 33401
[Phone Redacted]
Fax: [Phone Redacted]
ecf brucereinhartlaw.
Counsel for Defendant
Respectfully subm
By.
BET D. CRITTON, JR., ESQ.
orida Bar No. 224162
[Email Redacted]
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
[Email Redacted]
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Flagler Drive, Suite 400
West Palm Beach, FL 33401
561/842-2820 Phone
561/515-3148 Fax
(Counsel for Defendant Jeffrey Epstein)
EFTA02745833
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 15 of 50
Case 9:08-cv-80811-KAM document 47 Entered on FLSD Docket 03/12/2009 Page 1 of 21
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80811-MARRA/JOHNSON
C.M. A.,
Plaintiff,
v.
Y EPSTEIN and
Defendants,
DEFENDANT JEFFREY EPSTEIN'S MOTION TO DISMISS FIRST
AMENDED COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION,
AND MOTION FOR MORE DEFINITE STATEMENT; MOTION TO STRIKE,
AND SUPPORTING MEMORANDUM OF LAW
Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and through his undersigned
counsel, moves to dismiss Count I through XXXI of Plaintiff's First Amended Complaint
for failure to state a cause of action, and for more definite statement, or to strike, as
specified herein. Rule 12(b)(6), (e) and (f), Fed.R.Civ.P. (2008); Local Gen. Rule 7.1
(S.D. Fla. 2008). In support of dismissal, Defendant states:
The First Amended Complaint attempts to allege 32 counts. Counts I through
XXX are purportedly brought pursuant to 18 U.S.C. §2255 - Civil Remedies for
Personal Injuries; Count XXXI is entitled "Sexual Battery," and Count XXXII is entitled
"Conspiracy to Commit Tortious Assault only against Defendant, " Under
the heading "Factual Allegations" of the First Amended Complaint, Plaintiff also
references numerous federal and state criminal statutes, but fails to allege whether or
not she is attempting to assert claims based on these statutes. (¶15, 1st Am. Comp.).
EXHIBIT
C-
EFTA02745834
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 16 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 2 of 21
C.M.A. v. Epstein, et al.
Page 2
Dismissal is required on the following grounds: (1) A review of the complaint
allegations establishes that Plaintiff has failed to state the 30 causes of action under 18
U.S.C.A. 2255. As discussed more fully below herein, this statute does not allow for the
Plaintiff to allege 30 separate causes of action; rather, the statute allows for the Plaintiff
to attempt to assert one claim. In addition, Plaintiff has failed to allege a violation of the
requisite predicate act as identified in 18 U.S.C. §2255 in order to state a cause of
action. Thus, Counts I through XXX against EPSTEIN are required to be dismissed.
Rule 12(b)(6), Fla.R.Civ.P.
(2) Count )OO(l - Sexual Battery is also required to be dismissed for failure to state
a cause of action as Plaintiff has failed to allege the requisite elements of such claim.
The count fails to sufficiently allege whether it is being brought pursuant to common or
statutory law. Further, in Count XXXI, Plaintiff reincorporates in their entirety Counts I
through XXX; such pleading is improper and requires dismissal under the applicable
Federal Rules of Civil Procedure.
Supporting Memorandum of Law
I. Motion To Dismiss Standard
As established by the Supreme Court in Bell Atlantic Corp. V. Twomblv 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, Iflactual
allegations must be enough to raise a right to relief above the speculative level ... on the
EFTA02745835
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 17 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docketb3/12/2009 Page 3 of 21
C.M.A. v. Epstein, et al.
Page 3
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 plaintiffs 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 no set of facts in
support of his claim that would entitle him to relief." Id, (abrogating and quoting Conley
v. 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 mu noug raise a right to relief
above the speculative level, see 5 C. & A Federal ct
Procedure & 1216. on. 235-236 (3d ed.2004) (hereinafter
("[T]he pleading must contain something more ... than ... a statement of acts
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 N. A. 534 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(bM6) does not
countenance ... dismissals based on a judge's disbelief of a complaint's
EFTA02745836
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 18 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 4 of 21
C.M.A. v. Epstein, et al.
Page 4
factual allegations"); Scheuer v. , 416 U.S. 232, 236, 94 S.Ct. 1683
40 L.Ed.2d 90 (19741 (a well-pleaded complaint may proceed even if it
appears "that a recovery is very remote and unlikely").
In discussing Twomblv the Eleventh Circuit in v. Fla. International Univ.
495 F.3d 1289, 1295 (11th Cir. 2007), noted - "The Supreme Court's most recent
formulation of the pleading specificity standard is that 'stating such a claim requires a
complaint with enough factual matter (taken as true) to suggest' the required element."
In order to sufficiently allege the claim, the complaint is required to identify "facts that
are suggestive enough to render [the element] plausible." M, 495 F.3d at 1296
(quoting Twomblv, 127 S.Ct. at 1965).
II. Standard for More Definite Statement, Pleading, & Motion to Strike
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. As to the general rules and form of
pleading, Rules 8 and 10, a claim for relief must contain "a short plain statement of the
claim showing that the pleader is entitled to relief," Rule 8(a)(3); and may contain
alternative claims within a count or as many separate claims. Rule 10(d)(2) and (3).
Pursuant to Rule 12(f) - Motion to Strike, "the court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
III. Counts I through XXX, 18 U.S.C. 42255, are required to be dismissed.
A. 18 U.S.C. 62255 creates a single civil remedy or cause of action on behalf of a minor
plaintiff against a defendant. The civil remedy afforded is not on a "per violation" basis.
EFTA02745837
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 19 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 5 of 21
C.M.A. v. Epstein, et al.
Page 5
Contrary to Plaintiffs attempted assertion of 30 separate counts pursuant to 18
U.S.C.A. §2255 - Civil Remedy for Personal Injuries, this statute creates a single federal
cause of action or "civil remedy" for a minor victim of sexual, abuse, molestation and
exploitation. Under the plain meaning of the statutory text, §2255 does not create
separate causes of action on behalf of a minor against a defendant on a "per violation"
basis. No where in the statutory text is there any reference to the civil remedy afforded
by this statute as being on a "per violation" basis. 18 U.S.C. 2255(a) creates a civil
remedy for "a 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 ... ." See v. Husband, 428 F.Supp.2d 432
(E.D. Va. 2006); v. Husband, 376 F.Supp.2d 603 (E.D. Va. 2006) Doe v.
Liberatore, 478 F.Supp.2d 742, 754 (M.D. Pa. 2007); and the recent cases in front of
this court on Defendant's Motions to Dismiss and For More Definite Statement — Doe
No. 2 v. Epstein 2009 WL 383332 (S.D. Fla. Feb. 12, 2009); Doe No. 3 v. Epstein,
2009 WL 383330 (S.D. Fla. Feb. 12, 2009); Doe No. 4 v. Epstein 2009 WL 383286
(S.D. Fla. Feb. 12, 2009); and Doe No. 5 v. Epstein 2009 WL 383383 (S.D. Fla. Feb.
12, 2009).
There is no reported case supporting Plaintiff's tortured and nonsensical
interpretation of §2255. In all of these cases (cited above), each of the Plaintiffs brought
a single count or cause of action attempting to allege numerous violations of the
"predicate acts" specifically identified in §2255. "18 U.S.C. §2255 gives victims of
sexual conduct who are minors a private right of action." v. . 492
EFTA02745838
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 20 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket-03/12/2009 Page 6 of 21
C.M.A. v. Epstein, et al.
Page 6
F.Supp.2d 1186, 1188 (N.D. Cal. 2007), (emphasis added). 18 U.S.C.A. §2255 "merely
provides a cause of action for damages in 'any appropriate United States District
Court.'" Id, at 1189. See also Tilton v. Playboy Entertainment Group, Inc. 554 F.3d
1371 (11th Cir. Jan. 15, 2009)(District Court granted plaintiff "the minimum 'actual
damages' prescribed by §2255(a)," wherein plaintiff alleged that defendants had
violated three of the statutory predicate acts).
In improperly attempting to bring 30 separate counts pursuant to §2255, Plaintiffs
complaint alleges in part that "beginning in approximately late May or early June of
2002, and continuing until approximately August of 2003, the Defendant coerced and
enticed the impressionable, vulnerable, and economically deprived then minor Plaintiff
to commit various acts of sexual misconduct. These acts occurred, on average, one to
three times per week from late may or early June of 2002 until August 2003. At a bare
minimum these acts occurred twice a month from June 2002 until August of 2003." Am.
Complaint, ¶13. Plaintiff then claims the identical damages in each of the 30 §2255
counts. See 31, 37, 43, 49, 55, 61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121,
127, 133, 139, 145, 151, 157, 163, 169, 175, 181, 187, 193, and 199. As well, in Count
XXXI, entitled "Sexual Battery," Plaintiff claims the identical "actual damages" in that she
realleges and incorporates each and every of the 199 allegations in the 30 prior counts.
It is well settled that in interpreting a statute, the court's inquiry begins with the
plain and unambiguous language of the statutory text. CBS, Inc. v. Prime Time 24
Venture, 245 F.3d 1217 (11th Cir. 2001); U.S. v. Castroneves 2009 WL 528251, *3
(S.D. Fla. 2009), citing Reeves v. Astrue, 526 F.3d 732, 734 (11th Cir. 2008); and
EFTA02745839
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 21 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 7 of 21
C.M.A. v. Epstein, et al.
Page 7
v. Husband, 376 F.Supp.2d at 610 ("When interpreting a statute, [a court's] inquiry
begins with the text."). "The Court must first look to the plain meaning of the words, and
scrutinize the statute's 'language, structure, and purpose.' Id. In addition, in construing
a statute, a court is to presume that the legislature said what it means and means what
it said, and not add language or give some absurd or strained interpretation. As stated
in CBS. Inc. supra at 1228 — "Those who ask courts to give effect to perceived
legislative intent by interpreting statutory language contrary to its plain and
unambiguous meaning are in effect asking courts to alter that language, and '[clouds
have no authority to alter statutory language.... We cannot add to the terms of [the]
provision what Congress left out.' Merritt, 120 F.3d at 1187." See also Dodd v. U.S.,
125 S.Ct. 2478 (2005); 73 Am.Jur.2d Statutes §124.
Title 18 of the U.S.C. is entitled "Crimes and Criminal Procedure." §2255 is
contained in "Part I. Crimes, Chap. 110. Sexual Exploitation and Other Abuse of
Children." 18 U.S.C. §2255 (2003), is entitled Civil remedy for personal injuries, and
provides:
(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.
Reading the entire statute in context, no where is there any language indicating
that a minor plaintiff has a private right of action against a defendant "per violation."
EFTA02745840
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 22 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 8 of 21
C.M.A. v. Epstein, et al.
Page 8
Under the statutory rules of construction, had the legislature intended to give a plaintiff
multiple causes of action against a defendant on a per violation basis, the statute would
have included such language. Had Congress wanted to create such a remedy as
Plaintiff attempts to bring, it could have easily included language of "per violation" after
the presumptive damages amount in subsection (a). By its own terms, the statute
provides for the recovery of "actual damages the minor sustains and the cost of the suit,
including attorney's fees." There is absolutely no language that allows for a plaintiff to
multiply the specified or presumptive damages recoverable on a "per violation" basis.
The Plaintiffs position on §2255 puts a strained interpretation with an absurd result.
The absurdity of Plaintiffs position is further evidenced by Count XXXI — "Sexual
Battery" where Plaintiff reincorporates each of the 30 counts and seeks the identical
"actual damages."
In v. , supra, the defendants sought to dismiss plaintiffs' 18 U.S.C.
§2255 action based on forum non conveniens. The Northern District of California Court,
relying on the rules of statutory construction, rejected plaintiffs' argument that Congress
had intended to abrogate the forum non conveniens doctrine in a §2255 action; the
District Court noted that the statute does not contain a mandatory venue provision. Had
Congress wanted to get rid of the forum non-conveniens doctrine, it would have said so
in the statute. Also, in v. Husband, 428 F.Supp. 432; and 376 F.Supp.2d 603, the
plaintiff invoked "the accompanying civil remedy for these criminal violations, stating that
she has sustained and continues to sustain physical and mental damages, humiliation,
and embarrassment as a result of Defendant's criminal acts." In other words, she
EFTA02745841
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 23 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 9 of 21
C.M.A. v. Epstein, et al.
Page 9
brought a single cause of action, based on allegations of multiple violations of the §2255
predicate acts. Furthermore, the court refused to add a venue interpretation that simply
was not written into the statutory text. See other §2255 cases cited herein.
For an example of a statute wherein the legislature included the language "for
each violation" in assessing a "civil penalty," see 18 U.S.C. §216, entitled "Penalties and
injunctions," of Chapter 11 — "Bribery, Graft, and Conflict of Interests," also contained in
Title 18 - "Crimes and Criminal Procedure." Subsection (b) of §216 gives the United
States Attorney General the power to bring a "civil action ... against any person who
engages in conduct constituting an offense under" specified sections of the bribery,
graft, and conflicts of interest statutes. The statute further provides in relevant part that
"upon proof of such conduct by a preponderance of the evidence, such person shall be
subject to a civil penalty of not more than $50,000 for each violation or the amount of
compensation which the person received or offered for the prohibited conduct, which
ever amount is greater." As noted, 18 U.S.C. §2255 does not include such language.
Accordingly, Plaintiffs multiple counts brought pursuant to §2255 are required to
be dismissed for failure to state multiple causes of action.
B. Also requiring dismissal Plaintiff has failed to sufficiently allege
the requisite §2255 predicate acts.
Also requiring dismissal of Plaintiffs purported §2255 claim(s) is Plaintiffs failure
to sufficiently allege any violation of a requisite predicate act as specifically identified in
subsection (a) of the statute quoted above. 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
2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title
EFTA02745842
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 24 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 10 of 21
C.M.A. v. Epstein, et al.
Page 10
and who suffers personal injury as a result of such violation ... ." See cases cited above
herein. Plaintiff has failed to plead any factual allegations whatsoever pertaining to
violations of the specified "predicate acts." In paragraph 15, Plaintiff makes reference
by citation only to the following federal statutes — "18 U.S.C. §§2241, 2242, 2243, 2421,
and 2423." See endnote following the Certificate of Service herein for the complete
statutory text.'
First, Plaintiff's reliance on 18 U.S.C. §2241 in its entirety as a predicate act is
improper; it is a violation of subsection §2241(c) that is a designated predicate act. A
reading of the text of the other referenced federal statutes shows that no where in
Plaintiffs Amended Complaint are there any allegations setting forth the requisite
elements of the cited predicate act. Further, any attempted reliance by Plaintiff on other
federal or state statutes not specifically identified in 18 U.S.C. §2255 is improper and
fails to state a cause of action. See ¶15 of Am. Complaint wherein Plaintiff references
by citation additional Florida State statutes and thereafter incorporates such reference
into her §2255 claim(s). See v. Husband 376 F.Supp.2d, and 428 Supp.2d,
supra, requiring allegations/evidence to establish predicate act under 18 U.S.C. §2255
in order to be afforded civil remedy.
Plaintiff appears to be relying solely on an "agreement with the Federal
Government" as a basis for imposing liability under 18 U.S.C. §2255. See ¶¶17, 18,
and 19 of 181 Am. Complaint. There is nothing in Plaintiff's allegations that would allow
for a §2255 claim to go forward without specifying the statutory predicate act and factual
allegations pertaining to a violation of the requisite predicate act(s). Accordingly, under
EFTA02745843
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 25 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 11 of 21
C.M.A. v. Epstein. et al.
Page 11
the standard of pleading as established in Twombly, supra, Plaintiff has failed to
sufficiently allege the requisite elements of a §2255 claim, thus requiring dismissal; for
failure to state a cause of action.
C. 18 U.S.C. 42255 does not allow for the recovery of punitive damages.
Thus, Plaintiff's request for punitive damages under 42255 is required to be
dismissed or stricken.
In each of the improperly asserted Counts I through XXX, Plaintiff also seeks
punitive damages. A plain reading of 18 U.S.C. §2255, quoted above herein,
establishes that the statute does not allow for the recovery of punitive damages. Had
Congress wanted to allow for such a recovery, it could have easily written such
language into the damages provision of the statute. The legislative body chose not to
write a punitive damages component into §2255 as it has done in other statutes
affording civil remedies. In relevant part, §2255 reads - Any minor who is a victim of a
violation of section ... 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." See discussion
of rules of statutory construction in part III.A. herein. See subsection (f)(2) of 18 U.S.C.
§2252A, entitled Certain activities relating to material constituting or containing child
pornography, also contained in Chapter 110, Part I, Crimes, within which specific
reference is made to "compensatory and punitive damages" in setting forth the relief
which may be afforded to a plaintiff in bringing a civil action under §2252A(f).
EFTA02745844
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 26 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 12 of 21
C.M.A. v. Epstein, et al.
Page 12
Accordingly, Plaintiff's claims for punitive damages are required to be dismissed with
prejudice or stricken.
D. In the alternative, pursuant to constitutional law principles of statutory
interpretation, 18 U.S.C. 42255 is required to be interpreted as creating a
single "civil remedy" or cause of action on behalf of a minor plaintiff
against a defendant The "civil remedy" afforded is not on a "per violation"
basis.
As set forth above, it is Defendant's position that the text of 18 U.S.C. §2255
does not allow a Plaintiff, such as C.M.A., to pursue the civil remedy and the damages
afforded under the statute on a "per violation" basis. See part III.A. above. In the
alternative, simply for the sake of argument, if one were to assume that the language of
§2255 were vague or ambiguous, under the constitutional based protections of due
process, judicial restraint, and the rule of lenity applied in construing a statute,
Defendant's position as to the meaning of the statute would prevail over Plaintiffs view.
See United States v. , 128 S.Ct. 2020, 2025 (2008). As summarized by the
United States Supreme Court in=, supra, at 2025:
... The rule of lenity requires ambiguous criminal laws to be interpreted in
favor of the defendants subjected to them. See United States v. Gradwell,
243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917); McBoyle v. United
States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931); United States v.
Bass, 404 U.S. 336, 347-349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). This
venerable rule not only vindicates the fundamental principle that no citizen
should be held accountable for a violation of a statute whose commands are
uncertain, or subjected to punishment that is not clearly prescribed. It also
places the weight of inertia upon the party that can best induce Congress to
speak more clearly and keeps courts from making criminal law in Congress's
stead. ...
In , the Court was faced with the interpretation of the term "proceeds" in
the federal money laundering statute, 18 U.S.C. §1956. "The federal money-laundering
EFTA02745845
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 27 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 13 of 21
C.M.A. v. Epstein, et al.
Page 13
statute prohibits a number of activities involving criminal 'proceeds.'" Id, at 2023. Noting
that the term "proceeds" was not defined in the statute, the Supreme Court stated the
well settled principle that "when a term is undefined, we give it its ordinary meaning." Id,
at 2024. Under the ordinary meaning principle, the government's position was that
proceeds meant "receipts," while the defendant's position was that proceeds meant
"profits." The Supreme Court recognized that under either of the proffered "ordinary
meanings," the provisions of the federal money-laundering statute were still coherent,
not redundant, and the statute was not rendered "utterly absurd." Under such a
situation, citing to a long line of cases and the established rule of lenity, "the tie must go
to the defendant." Id, at 2025. See portion of Court's opinion quoted above. "Because
the 'profits' definition of 'proceeds' is always more defendant friendly that the 'receipts'
definition, the rule of lenity dictates that it should be adopted." Id.
Plaintiffs position would subject Defendant EPSTEIN to a punishment that is not
clearly prescribed — an unwritten multiplier of the "actual damages" or the presumptive
damages. The rule of lenity requires that Defendant's interpretation of the remedy
afforded under §2255 be adopted.
In addition, under the Due Process Clause's basic principle of fair warning -
... a criminal statute must give fair warning of the conduct that it makes a
crime ... . As was said in United States v. Harriss 347 U.S. 612, 617, 74
S.Ct. 808, 812, 98 L.Ed. 989,
'The constitutional requirement of definiteness is violated by a criminal
statute that fails to give a person of ordinary intelligence fair notice that
his contemplated conduct is forbidden by the statute. The underlying
principle is that no man shall be held criminally responsible for conduct
which he could not reasonably understand to be proscribed.'
EFTA02745846
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 28 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 14 of 21
C.M.A. v. Epstein, et al.
Page 14
Thus we have struck down a [state] criminal statute under the Due Process
Clause where it was not 'sufficiently explicit to inform those who are subject
to it what conduct on their part will render them liable to its penalties.'
Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70
L.Ed. 322. We have recognized in such cases that 'a statute which either
forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law,' ibid., and that
'No one may be required at peril of life, liberty or property to speculate as to
the meaning of penal statutes. All are entitled to be informed as to what the
State commands or forbids.' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59
S.Ct. 618, 619, 83 L.Ed. 888.
Thus, applying these well-entrenched constitutional principles of statutory interpretation
and application, Plaintiffs 30 separate counts brought under 18 U.S.C. §2255 are
required to be dismissed.
IV. Count XXXI — "Sexual Battery" is required to be dismissed for failure to
state a cause of action. In the alternative, Plaintiff should be required to more
definitely state whether she is attempting to allege a claim under Florida
common or statutory law, or some federal law, and further allege the required
elements and factual allegations.
In Count XXXI, although entitled "Sexual Battery," Plaintiff improperly realleges
and incorporates each and every allegation and each and every count (30) which she
previously attempted to allege, resulting in a count that is 204 paragraphs long and
includes reference to Federal and Florida statutory law, while also including language
sounding in common law. The count is such a hodgepodge of legal allegations that
Plaintiff fails to state a legally recognizable or viable cause of action.
In ¶15, Plaintiff alleges that "the acts referenced in paragraphs 9 through 14,
committed by Defendant against the then minor Plaintiff, C.M.A., were committed in
violation of numerous criminal State and Federal statutes ... , including but not limited
to, those crimes designated in 18 U.S.C. §§2241, 2242, 2243, 2421, and 2423, criminal
EFTA02745847
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 29 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 15 of 21
C.M.A. v. Epstein, et al.
Page 15
offenses outlined in Chapter 800 of the Federal Codes, as well as those designated in
Florida Statutes §796.03, §796.07, §796.045, §796.04, §39.01; and §827.04." In ¶203
Plaintiff also alleges that Defendant's "tortious commission of sexual battery upon
C.M.A. were (sic) done willfully and maliciously."
Supporting Defendant's position that Plaintiff has failed to state a cause of action
in Count XXXI, 18 U.S.C. O2241(c), not §2241 in its entirety, as discussed above, is
one of the predicate acts, along with 2242, 2243, 2421, and 2423, designated in the
federal civil remedy statute — 18 U.S.C. §2255. Plaintiff attempted and failed to allege
such a claim in the previous counts. Defendant can find no criminal offenses in any
"Chapter 800 of the Federal Codes" which give rise to a civil cause of action.
The same is true for Plaintiffs reference to the Florida Statutes. Not one of the
statutes referenced creates a private cause of action or affords a civil remedy on behalf
of the alleged victim of the criminal offense.' (Except for Florida Statute §39.01, all of
the statutes referenced by Plaintiff are contained Title XLVI. Crimes of the Florida
Statutes). The referenced criminal statutes set forth acts subject to criminal prosecution
and the criminal penalties therefor, if proven. See generally Am. Home Assurance Co.
v. Plaza Materials Corp. 908 So.2d 360, 374 (Fla. 2005)("not every statutory violation
carries a civil remedy")• Miami Herald Pub. Co. v. Ferre, 636 F.Supp. 970 (S.D. Fla.
1985)(violation of Florida's criminal extortion statute does not give rise to civil cause of
' Florida Statutes O796.03 — Procuring person under age 18 for prostitution; 796.04 —
Forcing, compelling, or coercing another to become a prostitute; 796.045 (which did not
become effective until Oct. 1, 2004) - Sex trafficking; penalties; 796.07 — Prohibiting
prostitution, etc.; evidence; penalties; definitions; and §39.01, entitled "Definitions," is
contained in Title V — Judicial Branch, Chapter 39 - "Proceedings relating to Children."
EFTA02745848
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 30 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 16 of 21
C.M.A. v. Epstein, et al.
Page 16
action for damages); Mantooth v. Richards 557 So.2d 646 (Fla. 4th DCA 1990), per
curiam, (Dismissal of plaintiffs civil complaint affirmed where parental kidnapping
statutes concerned only criminal violations and did not create a civil remedy).
As well, the Count XXXI allegations make absolutely no reference to any
viable common law cause of action; Defendant should not be required to guess or
speculate as to the nature of Plaintiffs cause of action. Even if Defendant were to
speculate as to the supposed cause of action, these causes of action (common law or
otherwise) have not been sufficiently alleged. On its face, in accordance with the
pleading requirements annunciated in Twombly, supra, Count XXXI is completely
lacking as to any common law elements or the underlying factual allegations to support
each element, and thus, Count XXXI is required to be dismissed for failure to state a
cause of action.
In the alternative, Plaintiff should be required to more definitely state whether her
claim is being brought pursuant to federal or Florida statutory law, specifically identify
the statute it is being brought under, or whether her claim is being asserted under
common law. Once Plaintiff identifies the nature of her claim, she is required to
sufficiently allege in accordance with Twomblv the requisite elements of the identified
claim, along with sufficient factual allegations supporting the elements.
Conclusion
Pursuant to applicable law, Counts I through XXXI of Plaintiffs First Amended
Complaint are required to be dismissed for failure to state a cause of action. 18 U.S.C.
does not allow for the Plaintiff C.M.A. to allege separate causes of action against
EFTA02745849
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 31 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 17 of 21
C.M.A. v. Epstein, et al.
Page 17
Defendant EPSTEIN, but rather allows Plaintiff to attempt to assert a single civil remedy
if she can prove a violation of any of the statutory enumerated predicate acts. Further,
Plaintiff has failed to sufficiently allege a requisite predicate act under §2255. In
addition, §2255 does not allow for recovery of punitive damages. Count XXXI is also
subject to dismissal with prejudice for failure to state a cause of action, as Plaintiff has
failed to allege a legally viable or recognizable cause of action.
WHEREFORE, Defendant requests that this Court grant his motion to dismiss
Counts I through XXXI, or alternative motion for more definite statement, and motion to
strike.
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 recoj identified on the following Service List in the
manner specified by CM/ECF on this prday of March 2009:
Richard Horace Willits, Esq.
Richard H. Willits, P.A.
2290 10th Avenue North
Suite 404
Lake Worth, FL 33461
[Phone Redacted]
Fax: [Phone Redacted]
Counsel for Plaintiff C.M.A.
reelrhwAhotmail.com
Jack Sc la, Esq.
Jack P. I., Esq.
Searcy Denney Scarola Barnhart
Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409
[Phone Redacted]
Fax: [Phone Redacted]
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]
jaaesqAbellsouth.net
Cou endards Jeffrey Epstein
and
Bruce Reinhart, Esq.
& Bruce E. Reinhart, P.A.
250 S. Australian Avenue
Suite 1400
West Palm beach, FL 33401
[Phone Redacted]
Fax: [Phone Redacted]
EFTA02745850
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 32 of 50
Case 9:08-cv-80811-KAM Ducument 47 Entered on FLSD Docket 03/12/2009 Page 18 of 21
C.M.A. v. Epstein, et al.
Page 18
jsxAsearcvlaw.com
joh(d!searcvlaw.com
Co-Counsel for Plaintiff
' ENDNOTE:
ecf brucereinhartlaw.c
Counsel for Defendant
Respectfully su tted,
By:
ROBERT D CRITTON, JR., ESQ.
Florida Bar o. 224162
rcrit©bcIcl w.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
[Email Redacted]
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Flagler Drive, Suite 400
West Palm Beach, FL 33401
561/842-2820 Phone
561/515-3148 Fax
(Counsel for Defendant Jeffrey Epstein)
U.S.C.A. - Title 18. Crimes and Criminal Procedure,
Chapter 109A. Sexual Abuse
§2241. Aggravated Sexual Abuse.
(c) With children. --Whoever crosses a State line with intent to engage in a sexual act
with a person who has not attained the age of 12 years, or in the special maritime and
territorial jurisdiction of the United States or in a Federal prison, or in any prison,
institution, or facility in which persons are held in custody by direction of or pursuant to a
contract or agreement with the head of any Federal department or agency, knowingly
engages in a sexual act with another person who has not attained the age of 12 years,
or knowingly engages in a sexual act under the circumstances described in subsections
(a) and (b) with another person who has attained the age of 12 years but has not
EFTA02745851
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 33 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 19 of 21
C.M.A. v. Epstein, et al.
Page 19
attained the age of 16 years (and is at least 4 years younger than the person so
engaging), or attempts to do so, shall be fined under this title and imprisoned for not
less than 30 years or for life. If the defendant has previously been convicted of another
Federal offense under this subsection, or of a State offense that would have been an
offense under either such provision had the offense occurred in a Federal prison, unless
the death penalty is imposed, the defendant shall be sentenced to life in prison.
§ 2242. Sexual abuse
Whoever, in the special maritime and territorial jurisdiction of the United States or in
a Federal prison, or in any prison, institution, or facility in which persons are held in
custody by direction of or pursuant to a contract or agreement with the head of any
Federal department or agency, knowingly--
(1) causes another person to engage in a sexual act by threatening or placing that
other person in fear (other than by threatening or placing that other person in fear that
any person will be subjected to death, serious bodily injury, or kidnapping); or
(2) engages in a sexual act with another person if that other person is--
(A) incapable of appraising the nature of the conduct; or
(B) physically incapable of declining participation in, or communicating
unwillingness to engage in, that sexual act;
or attempts to do so, shall be fined under this title and imprisoned for any term of years
or for life.
§ 2243. Sexual abuse of a minor or
(a) Of a minor. --Whoever, in the special maritime and territorial jurisdiction of the
United States or in a Federal prison, or in any prison, institution, or facility in which
persons are held in custody by direction of or pursuant to a contract or agreement with
the head of any Federal department or agency, knowingly engages in a sexual act with
another person who--
(1) has attained the age of 12 years but has not attained the age of 16 years; and
(2) is at least four years younger than the person so engaging;
or attempts to do so, shall be fined under this title, imprisoned not more than 15 years,
or both.
(b) Of a --Whoever, in the special maritime and territorial jurisdiction of the United
States or in a Federal prison, or in any prison, institution, or facility in which persons are
held in custody by direction of or pursuant to a contract or agreement with the head of
any Federal department or agency, knowingly engages in a sexual act with another
person who is--
EFTA02745852
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 34 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 20 of 21
C.M.A. v. Epstein, et al.
Page 20
(1) in official detention; and
(2) under the custodial, supervisory, or disciplinary authority of the person so
engaging;
or attempts to do so, shall be fined under this title, imprisoned not more than 15 years,
or both.
(c) Defenses. —(1) In a prosecution under subsection (a) of this section, it is a defense,
which the defendant must establish by a preponderance of the evidence, that the
defendant reasonably believed that the other person had attained the age of 16 years.
(2) In a prosecution under this section, it is a defense, which the defendant must
establish by a preponderance of the evidence, that the persons engaging in the sexual
act were at that time married to each other.
(d) State of mind proof requirement --In a prosecution under subsection (a) of this
section, the Government need not prove that the defendant knew--
(1) the age of the other person engaging in the sexual act; or
(2) that the requisite age difference existed between the persons so engaging.
Chapter 117 Transportation for Illegal Sexual Activity and Related Crimes
§ 2421. Transportation generally
Whoever knowingly transports any individual in interstate or foreign commerce, or in
any Territory or Possession of the United States, with intent that such individual 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 10 years, or both.
§ 2423. Transportation of minors
(a) Transportation with intent to engage in criminal sexual activity. --A person who
knowingly transports an individual who has not attained the age of 18 years in interstate
or foreign commerce, or in any commonwealth, territory or possession of the United
States, with intent that the individual engage in prostitution, or in any sexual activity for
which any person can be charged with a criminal offense, shall be fined under this title
and imprisoned not less than 10 years or for life.
(b) Travel with intent to engage in illicit sexual conduct. —A person who travels in
interstate commerce or travels into the United States, or a United States citizen or an
alien admitted for permanent residence in the United States who travels in foreign
commerce, for the purpose of engaging in any illicit sexual conduct with another person
shall be fined under this title or imprisoned not more than 30 years, or both.
EFTA02745853
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 35 of 50
Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 21 of 21
C.M.A. v. Epstein, et al.
Page 21
(c) Engaging in illicit sexual conduct in foreign places. --Any United States citizen or
alien admitted for permanent residence who travels in foreign commerce, and engages
in any illicit sexual conduct with another person shall be fined under this title or
imprisoned not more than 30 years, or both.
(d) Ancillary offenses. --Whoever, for the purpose of commercial advantage or private
financial gain, arranges, induces, procures, or facilitates the travel of a person knowing
that such a person is traveling in interstate commerce or foreign commerce for the
purpose of engaging in illicit sexual conduct shall be fined under this title, imprisoned
not more than 30 years, or both.
(e) Attempt and conspiracy. --Whoever attempts or conspires to violate subsection (a),
(b), (c), or (d) shall be punishable in the same manner as a completed violation of that
subsection.
(f) Definition. --As used in this section, the term "illicit sexual conduct" means (1) a
sexual act (as defined in section 2246) with a person under 18 years of age that would
be in violation of chapter 109A if the sexual act occurred in the special maritime and
territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in
section 1591) with a person under 18 years of age.
(g) Defense. —In a prosecution under this section based on illicit sexual conduct as
defined in subsection (f)(2), it is a defense, which the defendant must establish by a
preponderance of the evidence, that the defendant reasonably believed that the person
with whom the defendant engaged in the commercial sex act had attained the age of 18
years.
EFTA02745854
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 36 of 50
Case 9:08-cv-80811-KAM Document 113 Entered on FLSD Docket 06/05/2009 Page 1 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80811-CIV-MARRNJOHNSON
C.M.A.,
Plaintiff,
VS.
JEFFREY EPSTEIN and
Defendants.
PLAINTIFF, C.M.A.'S, CONDITIONAL NOTICE OF INTENT TO EXCLUSIVELY RELY
ON STATUTORY DAMAGES PROVIDED BY 18 U.S.C. §2255
Plaintiff, C.M.A., by and through her undersigned counsel, hereby files her
Conditional Notice of Intent to Exclusively Rely on Statutory Damages Provided by 18
U.S.C. §2255, and in support thereof states as follows:
1. This is an action to recover money damages against Defendant,
JEFFREY EPSTEIN, for acts of sexual abuse and prostitution committed upon the then-
minor, C.M.A.
2. Plaintiff has plead thirty separate counts against EPSTEIN for separate
incidences of abuse committed by EPSTEIN against Plaintiff pursuant to 18 U.S.C.
§2255. 18 U.S.C. §2255, entitled "Civil remedy for personal injuries", creates a private
right of action for minor children who were the victim of certain enumerated sex
offenses. 18 U.S.C. §2255 also creates a statutory floor for the amount of damages a
EXHIBIT
EFTA02745855
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 37 of 50
Case 9:08-cv-80811-KAM Document 113 Entered on FLSD Docket 06/05/2009 Page 2 of 4
victim can recover for a violation of same. Plaintiff has also alleged a single count of
Sexual Battery against EPSTEIN as well.
3. There presently exists between the Plaintiff and EPSTEIN a disagreement
as to whether the statutory damage floor established in 18 U.S.C. §2255 is recoverable
for each commission of an enumerated sex offense listed in 18 U.S.C. §2255, or
whether the statutory damage floor can only be enforced once, regardless of how many
times a defendant perpetrates an enumerated sex offense against a minor victim.
4. This disagreement between the parties is properly the subject of
Defendant's Motion to Dismiss First Amended Complaint For Failure to State a Cause
of Action, and Motion For More Definite Statement; Motion to Strike, and Supporting
Memorandum of Law (D.E. 47) which is currently pending before this Court.
5. In the event that the Court rules that the Plaintiff is entitled to recover the
statutory damages created by 18 U.S.C. §2255 for each violation', Plaintiff will be
pursuing only those statutory damages, and will not pursue damages available at
common law.
6. Should the Court rule however, that the statutory damage floor can only
be applied once, Plaintiff will be pursuing any and all damages available to her, whether
they be pursuant to statute or by common law.
' The parties also disagree about the amount the statutory damage floor should be for this case. 18
U.S.C. §2255 was amended in 2005 to increase the floor from $50,000 to $150,000. The parties
essentially disagree about which version of 18 U.S.C. §2255 should apply In this case.
EFTA02745856
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 38 of 50
Case 9:08-cv-80811-KAM Document 113 Entered on FLSD Docket 06/05/2009 Page 3 of 4
Respectfully submitted,
Ls/.lark P ■
JACK SCAROLA
Florida B&W. 169440
JACK P.
Florida Bar No.: 0547808
Searcy Denney Scarola Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33409
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
Attorneys for Plaintiff, C.M.A.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 5th, 2009, I electronically filed the foregoing
document with the Clerk of Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record identified on the attached
counsel list via transmission of Notices of Electronic Filing generated by CM/ECF.
/s/.tack P ■
JACK SCAROLA
Florida Bai.U.2. 169440
JACK P. MI
Florida Bar No.: 0547808
Searcy Denney Scarola Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33409
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
Attorneys for Plaintiff, C.M.A.
EFTA02745857
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 39 of 50
Case 9:08-cv-80811-KAM Document 113 Entered on FLSD Docket 06/05/2009 Page 4 of 4
COUNSEL LIST
Jack A. Goldberger, Esquire
Atterbury, Goldberger & Weiss, P.A.
250 Australian Avenue S.
West Palm Beach, FL 33401
Phone: ([Phone Redacted]
Bruce E. Reinhart, Esquire
Bruce E. Reinhart, P.A.
250 South Australian Avenue
Suite 1400
West Palm Beach, FL 33401
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
Robert Critton, Esquire
Burman Critton Luttler & Coleman LLP
515 North Flagler Drive, Suite 400
West Palm Beach, FL 33414
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
Richard H. Willits, Esquire
Richard H. Willits, P.A.
2290 10th Avenue North
Suite 404
Lake Worth, FL 33461
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
EFTA02745858
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 40 of 50
Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 1 of 18
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CIV-80811-MARRAMa
C.M. A.,
Plaintiff,
v.
Y
EPSTEIN and
Defendants,
DEFENDANT EPSTEIN'S MOTION TO COMPEL PLAINTIFF C.M.A. TO RESPOND TO
DEFENDANT'S FIRST REQUEST TO PRODUCE AND ANSWER DEFENDANTS
FIRST SET OF INTERROGATORIES. AND TO OVERRULE OBJECTIONS. AND FOR
AN AWARD OF DEFENDANT'S REASONABLE EXPENSES
Defendant, JEFFREY EPSTEIN, by and through his undersigned attorneys,
moves this Court for an order compelling Plaintiff, C.M.A. to respond to Defendant's
First Request To Produce and to answer Defendant's First Set of Interrogatories, and to
overrule her objections asserted in Plaintiffs Response To Defendant's First Request
To Produce, dated February 13, 2009, and in Plaintiff's Notice of Serving Answers To
Interrogatories, dated February 18, 2009. Defendant further seeks an award of his •
reasonable expenses, including expenses, associated with the making of this motion.
Rule 37, Fed.R.Civ.P. (2008); Local Gen. Rules 7.1 and 26.1 H (S.D. Fla. 2008). In
support of his motion, Defendant states:
Prior to the filing of this motion, on April 1, 2009, Defendant's counsel
communicated by telephone with Plaintiffs counsel In a good faith effort to resolve the
discovery Issues herein. This motion addresses those discovery Items which remain at
EXHIBIT
I e
EFTA02745859
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 41 of 50
Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 2 of 18
C.M.A v. Epstein, et al.
Page 2
issue. Also, rather than file 2 separate motions to compel, Defendant filed one
addressing the production requests and Interrogatories because the discovery issues
overlap.
Motion To Compel Responses to Production Reauests Nos. 1, 2, 4. 5. and 19,
and Answers to Interrogatories Nos. 2, 18. and 23.
Production Request No. 1
1. Individual and/or joint income tax returns and supporting documentation
including W-2 and 1099 forms for 2002-2007 and, as well as all records or
documentation relative to the Plaintiffs earnings for the current year.
Response:
Objection. Irrelevant, immaterial and not reasonably calculated to lead to the discovery
of admissible information.
Legal Argument Supporting Entitlement to Discovery
Plaintiffs tax returns and supporting documentation are relevant to Plaintiffs
damages claims and, thus, discoverable. Plaintiffs complaint alleges in part that
"beginning in approximately late May or early June of 2002, and continuing until
approximately August of 2003, the Defendant coerced and enticed the impressionable,
vulnerable, and economically deprived then minor Plaintiff to commit various acts of
sexual misconduct." 1St Am. Complaint, ¶13. (Plaintiff also refused to answer
Interrogatory no. 2 which sought her employment history for the past ten years asserting
the same general objection).
Such information is both relevant and reasonably calculated to lead to the
discovery of admissible evidence. It Is well settled that relevant Information is
discoverable, even if not admissible at trial, so long as the discovery is reasonably
calculated to lead to the discovery of admissible evidence. Rule 26(b)(1), Fed.R.Civ.P.;
EFTA02745860
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 42 of 50
Case 9:08-ov-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 3 of 18
C.M.A. v. Epstein, et al.
Page 3
Donahav v. Palm Beach Tours & trans.. Inc. 242 F.R.D. 685 (S.D. Fla. 2007).
Discoverability of such Information is governed by Rule 26, Fed.R.Civ.P., pursuant to
which the scope of discovery Is broad. Ponahav supra, at 686, and cases cited therein.
Parties may obtain discovery regarding any matter, not privileged, which is relevant to
the claims or defense of any party involved in the pending action." Id.
Plaintiffs tax returns, along with the requested supporting documentation, for the
six year period, and documents relevant to her current earnings, are relevant to
Plaintiff's damages claims detailed below herein. Such information would show
Plaintiff's employment and earning history, as well as provide evidence as to how
Plaintiff has been able to function in her daily life before, during and after the alleged
incidents. Was she self-sufficient? Was she able to get out of bed each morning and
support herself? What type of Job did she hold? One's ability to earn a living and be
self-supporting has not only a financial component, but also an
emotional/psychological/mental component.
C.MA.'s First Amended Complaint.' attempts to allege 32 counts. Counts I
through XXX are purportedly brought pursuant to 18 U.S.C. §2255 — Civil Remedies for
Personal Injuries; Count XXXI is entitled "Sexual Battery," and Count )O00i is entitled
"Conspiracy to Commit Tortious Assault only against Defendant,
in her answers to Interrogatory nos. 9 and 10, which seek Information about
C.M.A.'s damages claims, Plaintiff answered that:
' Defendant's Motion To Dismiss directed to Plaintiff's First Amended Complaint is pending.
EFTA02745861
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 43 of 50
Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 4 of 18
C.M.A. v. Epstein, et al.
Page 4
I have bi-polar disorder and manic depression. I lost my self-esteem. I began
cutting myself on my arms and legs and developed drug problems. Permanent
injuries are psychological. (Interrog. No. 9).
I am claiming compensation for mental anguish, mental pain, psychic trauma,
and loss of enjoyment of life. These damages will be evaluated by a jury who
will provide their own methods of computation in an amount of at least the
statutory minknum established by 18 U.S.CA. §2255. (Interrog. No. 10).
In her 1st Amended Complaint, relevant to her damages claims, Plaintiff alleges:
C.M.A., has in the past suffered, and will in the future suffer, physical injury,
pain and suffering, emotional distress, psychological trauma, mental anguish,
humiliation, embarrassment, loss of self-esteem, loss of dignity, invasion of her
privacy and other damages ... . The then minor Plaintiff incurred medical and
psychological expenses and will in the future suffer additional medical and
psychological expenses. The Plaintiff C.MA. has suffered loss of income, a
loss of the capacity to earn income in the future, and a loss of capacity to enjoy
life. These injuries are permanent in nature and the Plaintiff, C.M.A., will
continue to suffer these losses in the future.
(1st Am. Complaint, Counts I - XXX (18 U.S.C. §2255), ¶¶25, 31, 37, 43, 49, 55,
61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, 133, 139, 145, 151, 157,
163, 169, 175, 181, 187, 193; Count )OO(l (Sexual Battery), ¶199.)
In each of her "Wherefore" clauses, Plaintiff seeks "compensatory damages of at
least the minimum provided by law." 18 U.S.C. §2255, pursuant to which Plaintiff
attempts to bring certain of her claims, allows for recovery of "actual damages." See fn.
2 herein for applicable statutory text.2
As discussed above, the tax returns, and supporting documentation, will provide
direct evidence as to Plaintiffs claimed damages. Such Information does not only go to
(a) 2 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. [Emphasis added.]
EFTA02745862
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 44 of 50
Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 5 of 18
C.MA. v. Epstein, et al.
Page 5
compensatory or actual damages or loss of income/loss of capacity to earn income type
damages, but also her emotionaUpsychological/mental health type damages. In the
telephone communication between counsel for the respective parties, Plaintiffs counsel
indicated that Plaintiff was not seeking loss of income/eaming capacity type damages;
(Defendant is not aware that there has been any formal withdrawal of such damages
claimed); notwithstanding, the information sought Is still relevant and discoverable
based on the additional damages claimed by Plaintiff. The time period will allow
Defendant to compare how Plaintiff was doing in her life prior to, during, and after the
alleged incident. Again, the type of jobs Plaintiff has been able to hold and her earnings
and ability to support herself clearly have not only a financial component, but an
emotional/psychological/mental health component as well. Accordingly, Plaintiffs
objection is required to be overruled, and Defendant is entitled to the documents
requested.
Production Request No. 2
2. All bills/expenses from any medical doctor, chiropractor, psychologists,
psychiatrists mental health counselors (including any members of the healing arts and
related i.e. drugs, prescriptions, etc.) you claim you Incurred as a result of the
injuries w c are or may be the subject matter of this lawsuit
Response:
None in our possession. These will be provided upon receipt. Discovery is ongoing.
Legal Argument Supporting Entitlement to Discovery
Plaintiff makes no objection to the documents requested, but has failed to
produce any documents responsive to this request. Clearly, the documents are relevant
and discoverable as they go to proof of Plaintiff's claimed injuries. in the April 1, 2009,
EFTA02745863
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 45 of 50
Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 6 of 18
C.M.A. v. Epstein, et el.
Page 6
telephone communication Plaintiff's counsel indicated that Plaintiff was still not in
possession of such documents. The First Request for Production was served on
Plaintiff on January 16, 2009. In her answer to interrogatory no. 11, (Notice of Serving
Answers, dated February 18, 2009, identifies a psychiatrist and a counselorltherapist
from whom she claims she is receiving "treatment or examination for the injuries for
which [she] seeks damages." See Exhibit A hereto for copy C.M.A.'s answer to
interrogatory no. 11. Regarding the date of treatment from the psychiatrist — she
asserts "I would defer to the Doctor's records." She claims the treatment from the
counselor/therapist has been "since high school" and "ongoing.° Defendant is entitled to
the documents sought and Plaintiff is in control of and has the ability to obtain the
requested medical bills and expenses she claims were incurred as result of her injuries
claimed in this action. Plaintiff should be required to immediately produce the requested
documents to Defendant.
production Request No. 4
4. All reports, evaluations, recommendations and/or analysis submitted by
any expert which relate to or cover the Incident which is the subject matter of this
lawsuit and/or any Injuries, damages or losses you allege were caused by the incident.
Response:
Any reports generated by any retained experts not yet disclosed are protected by the
work product privilege. Notwithstanding same, none.
Legal Argument Supporting Entitlement to Discovery
Plaintiff, through counsel, in the April 1, 2009, telephone communication,
indicated that she does not have any responsive documents and stands by her
objection. Rule 26 provides in relevant part —
EFTA02745864
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 46 of 50
Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 7 of 18
C.M.A. v. Epstein, et al.
Page 7
2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must
disclose to the other parties the Identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Written Report. Unless otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report--prepared and signed by the witness—if
the witness is one retained or specially employed to provide expert testimony in the
case or one whose duties as the party's employee regularly involve giving expert testimony.
The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them;
(II) the data or other information considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, Including a list of all publications authored In the
previous 10 years;
(v) a list of all other cases in which, during the previous four years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the
case.
(C) Time to Disclose Expert Testimony. A party must make these disclosures at the
times and in the sequence that the court orders. Absent a stipulation or a court order, the
disclosures must be made:
(I) at least 90 days before the date set for trial or for the case to be ready for trial; or
(ii) if the evidence is intended solely to contradict or rebut evidence on the same
subject matter identified by another party under Rule 26(a)(2)(B), within 30 days after the
other party's disclosure.
• •• •
(e) Supplementing Disclosures and Responses.
(1) In General. A party who has made a disclosure under Rule 26(a)--or who has
responded to an interrogatory, request for production, or request for admission--must
supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and If the additional or corrective
EFTA02745865
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 47 of 50
Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 8 of 18
C.M.A. v. Epstein, et al.
Page 8
Information has not otherwise been made known to the other parties during the
discovery process or in writing; or
(B) as ordered by the court
(2) Expert Witness. For an expert whose report must be disclosed under Rule
26(a)(2)(B), the party's duty to supplement extends both to information included in
the report and to Information given during the expert's deposition. Any additions or
changes to this information must be disclosed by the time the party's pretrial disclosures
under Rule 28(a)(3) are due.
Accordingly, Defendant requests that should Plaintiff be in possession of any
such reports, evaluations, recommendations and/or analysis prepared by an expert
expected to testify at trial or deposition, or to be used by an expert expected to testify at
trial or deposition, that such documents be produced as required by Rule 26,
Fed.R.Civ.P. quoted above.
Production Request No. 5
5. All medical reports and/or records from doctors, physicians, (including
psychologists, psychiatrists, mental health counselors), hospitals, drug or alcohol
facilities or any other person or entity who has rendered treatment to or examined you
for any reason after the Incident(s) which is the subject matter of this lawsuit.
Response:
None in our possession. Discovery is ongoing.
Legal Argument Supporting Entitlement to Discovery
Once again, Plaintiff should be required to immediately produce the requested
documents. In support of ordering immediate production, Defendant realleges and
Incorporates his "Legal Argument Supporting Entitlement To Discovery" to request no. 5
above herein.
EFTA02745866
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 48 of 50
Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 9 of 18
C.M.A. v. Epstein, et al.
Page 9
Interrogatory No. 2
2. List the names, business addresses, telephone and cell phone numbers,
dates of employment, immediate supervisor (name and address) and rates of pay
regarding all employers, including self-employment, for whom you have worked in the
past 10 years; this includes listing all sources of income you have received. Answer this
question by year, i.e. 1998 - 2009.
Answer:
Objection. Irrelevant, immaterial and not reasonably calculated to lead to discovery of
admissible evidence.
Legal Argument Supporting Entitlement to Discovery
Such information is dearly relevant to the damages and injuries claimed by
Plaintiff in this action. Plaintiffs complaint alleges in part that "beginning in
approximately late May or early June of 2002, and continuing until approximately
August of 2003, the Defendant coerced and enticed the impressionable, vulnerable, and
economically deprived then minor Plaintiff to commit various acts of sexual misconduct."
l m Am. Complaint, ¶13. (See discussion of Production Request no. 1 above herein).
Such Information is both relevant and reasonably calculated to lead to the
discovery of admissible evidence. It is well settled that relevant information is
discoverable, even if not admissible at trial, so long as the discovery Is reasonably
calculated to lead to the discovery of admissible evidence. Rule 26(b)(1), Fed.R.Civ.P.;
Donahav v. Palm Beach Tours & trans.. Inc., 242 F.R.D. 685 (S.D. Fla. 2007).
Discoverability of such information is govemed by Rule 26, Fed.R.Civ.P., pursuant to
which the scope of discovery is broad. Donahav, supra, at 686, and cases cited therein.
"Parties may obtain discovery regarding any matter, not privileged, which is relevant to
the claims or defense of any party involved in the pending action." Id.
EFTA02745867
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 49 of 50
Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 10 of 18
C.M.A. v. Epstein, et al.
Page 10
Plaintiffs employment and earnings history prior to and after the alleged
Incidents are relevant to her claimed damages and Injuries. Such Information would not
only evidence Plaintiffs employment and earning history, but also provide evidence as
to how Plaintiff has been able to function in her daily life before, during and after the
alleged incidents. Was she self-sufficient? Was she able to get out of bed each
morning and support herself? What type of job did she hold? One's ability to earn a
living and be self-supporting has not only a financial component, but also an
emotional/psychological/mental component.
C.M.A.'s First Amended Complaint attempts to allege 32 counts. Counts I
through XXX are purportedly brought pursuant to 18 U.S.C. §2255 — Civil Remedies for
Personal Injuries; Count )0Oa is entitled "Sexual Battery," and Count XXXII is entitled
"Conspiracy to Commit Tortious Assault only against Defendant,
In her answers to interrogatory nos. 9 and 10, which seek Information about
C.M.A.'s damages claims, Plaintiff answered that:
I have bi-polar disorder and manic depression. I lost my self-esteem. I began
cutting myself on my arms and legs and developed drug problems. Permanent
injuries are psychological. (Interrog. No. 9).
I am claiming compensation for mental anguish, mental pain, psychic trauma,
and loss of enjoyment of life. These damages will be evaluated by a Jury who
will provide their own methods of computation In an amount of at least the
statutory minimum established by 18 U.S.C.A. §2255. (Interrog. No. 10).
In her l it Amended Complaint, relevant to her damages claims, Plaintiff alleges:
C.M.A., has in the past suffered, and will in the future suffer, physical injury,
pain and suffering, emotional distress, psychological trauma, mental anguish,
humiliation, embarrassment, loss of self-esteem, loss of dignity, Invasion of her
privacy and other damages ... . The then minor Plaintiff Incurred medical and
psychological expenses ... and will in the future suffer additional medical and
psychological expenses. The Plaintiff C.MA has suffered loss of income, a
EFTA02745868
Case 9:08-cv-80119-KAM Document 245 Entered on FLSD Docket 08/05/2009 Page 50 of 50
Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 11 of 18
C.MA v. Epstein. et al.
Page 11
loss of the capacity to earn Income in the future, and a loss of capacity to enjoy
life. These injuries are permanent in nature and the Plaintiff, C.M.A., will
continue to suffer these losses in the future.
(1`t Am. Complaint, Counts I — XXX (18 U.S.C. §2255), 31, 37, 43, 49, 55,
61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, 133, 139, 145, 151, 157,
163, 169, 175, 181, 187, 193; Count )00(l (Sexual Battery), ¶199.)
In each of her 'Wherefore" clauses, Plaintiff seeks 'compensatory damages of at
least the minimum provided by law." 18 U.S.C. §2255, pursuant to which Plaintiff
attempts to bring certain of her claims, allows for recovery of "actual damages! See fn.
2 herein for applicable statutory text.
As discussed above, C.M.A.'s employment and earnings history will provide direct
evidence as to Plaintiffs claimed damages. Such Information does not only go to
compensatory or actual damages or loss of income/loss of capacity to earn income type
damages, but also her emotional/psychological/mental health type damages. In the
telephone communication between counsel for the respective parties, Plaintiff's counsel
indicated that Plaintiff was not seeking loss of income/Gaming capacity type damages;
(Defendant is not aware that there has been any formal withdrawal of such damages
claimed); notwithstanding, the information sought Is still relevant and discoverable
based on the additional damages claimed by Plaintiff. The time period will allow
Defendant to compare how Plaintiff was doing In her life prior to, during, and after the
alleged Incident. Again, the type of Jobs Plaintiff has been able to hold and her earnings
and ability to support herself clearly have not only a financial component, but an
emotional/psychological/mental health component as well. Accordingly, Plaintiffs
EFTA02745869