prince-andrew-motion-denied

USDCSDNY | UNITED STATES DISTRICT COURT DOCUMENT I SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED | VIRGINIA L. GIUFFRE, DATE FILED. 07/02 [22 Plaintiff, — against: 21-6v-6702 (LAK) PRINCE ANDREW, Duke of York, in his personal capacity, also known as Andrew Albert Christian Edward, Defendant. OPINION Appearances: David Boies Sigrid McCawley ‘Andrew Villacastin Erika Nyborg-Burch Sabina Mariella BOIES SCHILLER FLEXNER LLP Attorneys for Plaintiff Andrew B. Brettler Melissa Y. Lemer LAVELY & SINGER P.C. Attorneys for Defendant |  Table of Contents ‘The Epstein Sex Trafficking Scheme ........... enor essed Defendant's Relationship with Epstein and Maxwell. ...........................3 Epstein Recruits PINT ................oeeeoseeeisensiiiennnennnnnd Defendant’s Alleged Sexual ABUSE oo ..ooeeieesiiiesiiieninS) ‘The Florida State Prosecution and the Federal Non-Prosccution Agreement... ....& Ms. Giuffre’s Florida Suit Against EpSICin ........................weceeeend ‘The Federal Criminal Case Against EpStein. ................ooeriurnniinennnnd The 2009 ABIECMENL. .........eneeeniieenineeenineeeneeenees 10 cme DIO 4. ER £43 094 00 0s owns ond] I Dismissal on the Basis of the 2009 Agreement Is Not Justified on this Motion A Legal PHOGIDIES. oven Ln 1. Materials Properly Considered ............evvovervn IL 2 GOVEMINE LAW... .....eeeeeeeiieeeieeeinee 12 B. Analysis of the 2009 AROCMENt. .............oooiieseiinn 12 I. Whether the Defendant Is Among the Purportedly Released Persons 2. Whether Defendant is Entitled to Enforce the Release as a Third Party Beneficiary of the 2009 Agreement. .................22 a. Relevant Provisions of the Agreement... . ez b. Defendants Cases Are Inapposite .................25 c. The Dershowitz Argument ........................28 IL The Complaint States Legally Sufficient Claims ........................3L A Legal PHRGIPIES. ov oevveeeeieeeieeenneeenns 31 BAe tiered pgp ett iret siete rns ate il I. The Complaint ls Legally Sufficient. ......................32 2. Defendant's Contention that the Plaintiff Was Obliged to Plead Specific Facts Demonstrating Violation of the New York Penal Law TMOTRND wrens rreerriserrromeossriseesssessooriese ll 3. Plaintiffs IED and Battery Claims Are Not Duplicative ...... 35 I. The Attack on the Constitutionality of the New York Child Victims Act Is Without IV. Defendant Is Not Entitled to a More Definite Statement. He Will Get the Detail He Seeks During DISCOVETY . + veenaannnnnnseeennnnnen 42 COMCIUSION eee 4)  Lows A KAPLAN, Disrct Judge. oo © Plaintiff Virginia Roberts Giuffrebrings this action against defendant Prince Andrew, Duke of York, for battery and intentions infliction of emotional distzes. In short, she alleges that the late Jeffrey Epstein and others trafficked her to Prince Andrew who took advantage of the - situation by sexually abusing her when she was under the age of cghtcen. Dende denies Ms. Gffe'sallgatons and attacks credibly and tives. Ho asserts that she was complicit in Epstein’ unlawful activiies. But this is a motion to dismiss Ms. Giuffre's complaint as legally insufficient ~ not to determine the truth or falsity of charges in her complaint. And defendant relies mainly, although not exclusively, na 2009 agreement between Ms. Giuffre and Epstein that sited a different lawsuit, between Giufre and Epstein, that defendant now argues released him from any liability to Ms. Giufie. “The fact tht defendant has brought the mater before the Court on a motion to dismiss the complaiat as legally insufficient is of central importance. As is well known to lawyers but perhaps not known to the lay public the defendant — by making this motion — placed upon the Court the unyielding duty to assume — for the purposes of this motion anly ~ the truth of ll of plaintfFs allegations and to draw in plainif’s favor al inferences tha reasonably may be dravn from those allegations." Tn consequence, the law prohibits the Court from considering a this stage of the proceedings defendant’ offorts to cast doubt on the truth of Ms. Giuffe’s allegations, even though his efforts would be permissible ata trial. In similar vein and or similar reasons, itis not open to the Court now to decide, as a matter of fac, just wha the parties o the release in the 2009 Ei Lit» City of New York, 95 £34 297, 306 (2d Ci. 2019 “On a motion to dismiss, ail factual allegations in the complaint are accepted ss trae and ll inferences are dapat re bad url 92 F- Ag 0.910 G4 Ci  2 sctlement agreement signed by Ms. Giff and Jefe Bpscn actually meant. As vill appear "more fully below, the Court’ job at this juncture is simply to determine whether there are two or more reasonable interpretations of that document. If here are, the determination of the “right” or controlling interpretation must await further proceedings. : ~ IE _— EE [EE TTT Excoptasotherwisenoted, the facts arc dravm from Ms. Gut scomplaint. Itbears repeating that ifs allegations are deemed true for purposes of this motion, whatever a trier of fact ultimately might determine ata trial. oo or The Epstein Sex Trafficking Scheme. Plaintiff's allegations aise principally from asex trafficking scheme orchestrated by the late sex offender JefTrey Epstein, which by now has been publicized widely. According to Ms. . Giufire’s complaint, Epstein “sexually abused more than 30 minor girls... in the United States and.__ overseas" from between about 1999 and 2007.2 In concert with paid employees and others notably ‘Ghislaine Maxwell, who recently was convicted in this district of sex trafficking in connection with the Epstein events? — Epstein and others lured vulnerable young girls into a scheme of abuse for Epstein’s own sexual gratification and for that of some of his powerful and wealthy fiends." * Complaint Dk 1) (hereinafter “Compl § 4 sting Opinion and Orde, DI. 435 at 1:2, Doe. United Siaies, No. 08-cv-80736 (KAM) (S.D. Fla. Feb. 21, 2019)). Cte Sats Mawel No. 2050330 (AN. Comins  3 Epstein relied on Maxwell and others to identify and target vulnerable young girls in numerous TT sctings, including “schools, spa, railer parks, and the street Epsiin's ‘recuitrs” lured these girl into his orbit with the promise of what appeared to be legitimate masseuse positions. Once. ‘manipulated into returning to one of Epstein’s residences, however, the girls were groomed for abuse by Epstein and others through displays of wealth, power, and sexual imagery.’ CT omeiatsonslabsehadoccuned psn nd Maxwel the manipuledthe TT ict with a combination of promise, heats, and surveillance ACs height, Epstein’s sexual abuse scheme, managed principally by Maxwell, was transcontinental. Using his private jet, Epstein taflicked dozens of minors for sexual abuse at his New York City mansion, his New Mexico raich, his private island in the U.S. Virgin Islands, hs Palm Beach, Florida, estate, and elsewhere. In 2008, he pleaded guilt in Florida to procuring a minor for prostitution.” Defendant's Relationship with Epstein and Maxwell oo Again according to Ms. Giure's complaint, the defendant first met Epsteinin 1999 through the former's “close friend,” Ghislaine Maxwell.” Over the next several years, the defendant traveled with Epstein and Maxwell on Epstein’s private plane and was a guest at Epstein’s numerous 2919. © amen Tum Ye Tum  . homes, including the private island in the U.S. Virgin Islands, Little St. James, and properties in Palm each and New York City. psc and Masel wre guests at tho defendant’ otieth birthday party in 2000 as well as at a birthday party that the defendant threw for Maxwell in Sandringham, United Kingdom, in the same year. “in 2006, one month after Florida state prosecutors charged Epstein with procuring a - minor for prostiation, the defendant invited Epstein to the eighteenth birthday party of ne of - Giada's dmughiors As rooely 3 2010, and terre afer Eps ad done Jul me in connection with the 2006 Florida charges and registered as a sex offender, the defendant was. photographed with Epstein and stayed at Epstein’s New York City mansion.” ol [Epstein Recruits Plaintiff Ms. Giuffre’s complaint continues: Maxwell recruited Ms. Giuffire into Epstein’s sex trafficking activities in 2000, when Ms. Giffre was sixteen years old and employed at the Mar-A-Lago Club in Palm Beach." Like other minor girls whom Epstein and Maxwell targeted, plaintiff initially was recruited to “provide ‘massages, and thereafter to engage in a variety of sexual acts, for Epstein”? From 2000 through 2002, plaintiff traveled frequently with Epstein, both within the United States and intemationally, on his private plane. In addition to being “on call for Epstein for sexual purposes,” plaintiff on other " 1d. 150. ! Id. 992,24. " ys.  5 occasions was “lent out to other powerful men,” including the defendant. Defendant's Alleged Sexual Abuse “The complaint alleges, and the Court for present purposes i obliged to accept, that "the defendant sexually abused Ms. Giuffire when she was under the age of eighteen years old. On one. " ccssion, defendant allegedly freed pn 0 Have sx with im aginst her wil at Mawel's “home in London. Ms. Giuffre’s complaint includes a reproduction of a now widely published o photograph of Ms. Giuire, Prince Andrew, and Maxwell at Maxwell's home, which plaintiff says wnstuken priorto that event On another occasion, defendant llogedly abused Ms, Giuffreduring a visit o Epstein’s private island, Little St, James. Ms. Giuffe alleges also that defendant abused her at Epstein’s mansion on the Upper East Side of Manhattan, which lis within this judicial district. During that particular encounter, Maxwell forced “[pllaintift a child, and another victim to sit on Prince Andrew's lap as Prince Andrew touched her.” During tis visit to New York, according to the complaint, the defendant forced Ms. Giuffre to engage in sex acts against her will and was aware both of her age and that she was a coerced sex-trafficking victim." In cach of these encounters, plaintiff alleges, Epstein, Maxwell, and the defendant compelled her to engage in sexual acts by express or implied threat. In consequence, plaintiff feared a Tue, re © amas  6 death or physical injury t herself or another, among other repercussions, if she disobeyed.” oT “Ms. Giufire asserts that the defendant's actions caused and continue to cawse her significant emotional and psychological distress and harm. - The Florida State Prosecution and the Federal Non-Prosecution Agreement Atthis point, itis helpful and appropriate to refer to facts not alleged in the complaint oo in this case but of which the Court takes judicial notice." oo oo In July 2006, a Florida state grand jury indicted Epstein in a statc court on a single count of felony Solicitation of prostitution (the “Florida State Indictment”). As will appear, that charge remained pending until mid-2008. As previously noted, defendants motion in this case relies heavily on the 2009 agreement between Epstein and Ms. Giuffre, which already is before the Court as 2 matter of judicial notice (the “2009 Agreement”). The 2009 Agreement contains the following paragraph: ay “ “The Court takes judicial notice only to the extent of the fasts set forth in ths section of his opinion and, in the case of documents, for the existence of contents of the documens, but not for th truth of assertions the documents contin. See Jn re SKAT Tax Refund Scheme Litg, No. 18-CV-05053 (LAK), 2020 WL 7496272, a *3 (SDN.Y. Dec. 21, 2020). Indictment, State v. Epstein, No. 06-9454CF (FL Cir. Ct July 19, 2006), reprinted in US. Dep't of Just, OFF. of Po. Resp, Report — Investigation nto the U.S. Atorney's Office for the Southern District of Florida's Resolution of Hts 2006-2008 Federal Criminal Ivestigation of Jeffrey Epstein and Its Interactions with Victim during the Investigation, Fx.) (Nov. 2020). The OPR Report contains a great deal of information about how the NPA came to pass. But the Court does not take judicil notice of is statements or consider itn deciding this motion. Dk. 57 taking judicial notice of DK. 32, x. A).  7 “Firstand Second Parties further stipulate and agree that this Settlement Agreement ~~ ispuruanttoandisinfulfillmentof Jeffrey Epstein’s obligations to Virginia Roberts (Gif)... pursuant to and in conformity with the Non-Prosccution Agreement, ts ‘Addendum, and its Affirmation . . . between Jeffrey Epsicin and the United States ‘Atiomey for the Southern District of Florida. ™ “Thus, the terms of the non-prosecution agreement (the “NPA”) may shed light on the meaning of the: 2009 Agreement. The Court therefore takes judicial notice of the NPA, its addendum, and affirmation.” So ~ For present purposes, the following terms of the NPA arc of possible interest here: I. Epstein agreed to plead guilty to the Florida State Indictment and to a state Information charging him with solicitation of minors to engage in prostitution. 2. The U.S. Atomey's office agreed to provide Epstefn’s attomeys “with a list of individuals whom it hald) identified as victims, as defined in 18 US.C. § 2255” and, “in consultation with and subject to the good faith approval of Epstein’s counsel, [would] select an attormey representative for these persons, who [would] be paid for by Epstein.” Epstein’s lawyers “The agreement define the term “First artes” to mean Virginia Roberts (ka Giufle] and her agent(9), attomey(s), predecessor(s), successor(s), heirs), administrators), andlor assign)” It defines the term “Second Prtis” to mean “Jeffey Epstein and his agen(s), atomey(s), predecessor(s), successors), heis),_adminisiator(s), assign(s) andlor employees(s)." For ease of exprasion, unless otherwise indicted orth context otherwise requires, the balance of ths opinion uses the term “Vs. Gufs” to refer collectively to Ms. Gute and the others included nthe defined term “First Parties” Similarly it ses th tem “Epstein” orefr collectively to Epstein and the thers included inthe defined tm “Second Parties.” Dit 32, Bx Aai2. See Non-Prosccation Agreement [hereinafter NPA”), DK. 361-62, Doc v. United States No. 08-cv-80736 (KAM) (5.D. Fa. Feb. 10, 2016).  8 could “contact the identified individuals through that representative. TT TT3. Epstein agreed that if one or more of the individuals whom the government - had identified as victims elected to sue Epstein under 18 U.S.C. § 2255, Epstein would not contest jurisdiction over him in the Florida federal court and he would waive his right to contest his lability. In addition, he would “waive{] his right to contest damages up to an amount as agreed to between the otf indioin and Epis longs theidenificd dividual ected proceed xcusvly CT under 8 US.C. § 2255, and agree(d] to waive any other claim for damages, whether pursuant to Sate, federal, or common law." Epstein’s waivers, however, would not apply to anyone who had not been identified by the government as a victim of, having been so identified, did not proceed exclusively under 18 U.S.C. § 2255. 4. The U.S. Atomey's office agreed that it would not prosecute Epsicin nor “institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to” four specifically identified persons if Epstein pleaded guilty to the Florida charges and otherwise discharged his abligations under the NPA ~ “The NPA bears signatures dated variously in ate Septeraber and in October 2007. Ms. Giuffe’s complaint alleges that Epstein pled guilty to the Florida information (and presumably the indictment) in 200877 —_— dah Tou Tes 7 mee  9 — Ms Giagre’s Florida Si Against pve - Tn May 2009, while Epstein was incarcerated in Palm Beach County, Florida, as a result of his guilty plea to the Florida state charges, Ms. Giuflre sued Epstein in the United States District Court for the Southern District of Florida (the “Florida Case”) under 18 U.S.C. § 2255 as an Bh alleged victim of Epstcin’s alleged federal sex trafficking, sexual exploitation, and child pomogrsphy —————offemses ™ Her complaint asserted Ural Epstein and Eps(ein's “adult male peas, including royally, politicians, academicians, businessmen, and/or other professional and personal acquaintances,” had sexually exploited her.” CT Vie Glut and Epsen catered into the 2009 Agreemens, ended Slment N Agreement and General Release, pursuant to which Giuffve voluntarily dismissed her action against Epstein in exchange for $500,000. The defendant argues that Ms. Giuffre’s claims against him are barred by the terms of the 2009 Agreement. The Federal Criminal Case Against Epstein On July 2, 2019, a grand jury in this district indicted Epstein for an alleged sex "ue Complaint, Jone Doe No. 102 v. Epiin, No 09-ov-30656 (KAM) (SD. Fi. May 1, 2009) (hereinafier “Florida Compl") Tam Sue Fina Onter of Dismisal Dt. 65, Jane Do No. 102, No. 0951-40656 (KAM) 5. Fla. Dec. 8, 2009).  10 (eaficking conspiracy and the substantive crime of sex trafficking in viohtion of 18 U.S.C. § 1591. wns amested on July 8, 2019; On August 102019, Epstein was foud dead i his cell A the - Metropolitan Correctional Center The 2009 Agreement - TT The 2009 Agreements the crux of defendant's motion. It contains six and a fraction pages of subslanive ext aonssting oF ine individually labeled provisions. These wean agreEment {o dismiss the Florida Case (§ 1), one ad ote-hlf page provision eaptioned “genera release” that contains additional covenants beyond the releasing language (5 2), 2 payment section (§ 3), a confidentiality provision 5 4), covenaats dealing with mainining Ms. Giufi's anonymity (85), 4 “no contact” covenant (§ 6), a provision relating to governing law and enforcement of the agreement (§ 7), a clause concerning atomeys” fees (§ 8), and a collection of miscellaneous provisions 59). A number of these provisions bear importantly on the resolution of this motion and ae disused in dtl below so he i no need 0 quote or summarize them in great detail her Suffice ito say by way of troduction that + This motion raises two pivotal issues regarding the 2009 Agreement + Whetherthe 2009 Agreement demonstrate tha ts releasing language in Section 2 unambiguously applies to tis defendant and, if so. + Whether the defendant — who is not a party to nor mentioned in the ! Sven, D4, ed Sa» Btn No 15CRA90 NE) SONY 2 "comes.  agreement — is entitled to invoke it. + The2009 Agreement is fa from a model of clear and precise drafting. Both — “sides agree that Epstein and Ms. Giufffc agreed to fs language. lmusthave meant something to them. But Ms. Giuffre and the defendant in this case disagree emphatically as to what it meant with respect to both issues. Discussion I Dismissal on the Basis of ie 2009 Agreerint Is Not Justified on this Motion A. Legal Principles I. Materials Properly Considered “The defendant moves to dismiss pursuant to Rule 12(5)(6). As noted previously, the ‘Cour, in this posture, must accept as true al well pleaded factual allegations in the complaint and draw “all reasonable inferences that can be drawn from [them] in the light most favorable to the plaintiff With limited exceptions, the motion must be decided solely on the basis of the allegations of the complaint without regard to any extrancous claims or materials. ‘The 2009 Agreement neither appears in nor is referred to in the complaint. But the copy before the Court concededly is authentic. Its wording (as distinguished from its legal effect) is undisputed, and the Court consequently has taken judicial notice of it* Moreover, » Lynch. City of New York, 952 F.3d 67,75 (2d Cir. 2020) citations and internal quotation marks omited). Ste, e.g. Alt Energy, Inc. v. St. Paul Fire and Marine Irs. Co., 267 34 30, 33 (1st Cir. 2001) (“Ordinarily, a court may not consider any documents that ars outside of the ‘complaint, or not expressly incorporated therein, unless the motion is converted into one for Summary judgment. There is, however, a arrow exception for documenis the authenticity of which are not disputed by he partie, or offical public records; for documents central to plaintiff claim; or for documents sufficiently refered inthe complaint”) (citations and internal quotation marks omitted) (emphasis added).  2 notwithstanding the general rule that an affirmative defense is not considered at this stage of the oo igaion. uth a defor nay b aed by a pre wer tion fo dismiss under Rule [20X0) + — ifthe defense appears on the fice of the complaint” And while the defendant’ argument does not rest on the face of the complaint, here that is a distinction without a. difference in light of the fact. ‘that the wording of the 2009 Agreement (again, as distinguished from its legal effect) is accepted by - both parties. Accordingly, the Court considers defendant's argument. - 0 . 2 Governing Law “The 2009 Agreement provides that it “shall be. governed by the laws of the State of ) Frida” Th patie aes. Accorinly the Court applies Florala toh to pivotal questions that bear on the defendant's release argument. 5 Analysis ofthe 2009 Agreement I. Whether the Defendant Is Among the Purportedly Released Persons We begin by focusing on the first two pages of the 2009 Agreement, which contain Sections 1 nd 2. Section | contains the agreement of plaintiff and JefTrey Epstein to dismiss plaintiff's Florida Case upon receipt of a monetary payment. Section 2, which occupies one and one-half ypewriten pages, contias, among other things, language by which “First Parties” (generally, Ms. Giuffre and some others) released “Second Parties” (generally, Epstein and some others) and * Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,74 (2d Cir. 1998). ” Itis undisputed that “Jane Doe No. 102” refered to Ms. Giuffre and that her identity was not evened in the complaint nthe Florida Cae.  13 “any other person or entity who could have been included us a potential defendant (‘Other Potential Defendants’) from all, and all manner of (claims) that said_First - Parties ever had. or may have, against Jeffrey Epstein, or Other Potential — ~~ Defendants... “The defendant insists that he was among the “Other Potential Defendants” and therefore was released by Ms. Giuffre from “all, and all manner of,” claims that she “ever had” against him. Ms. Giuffre maintains with equal adamancy that he was not among the “Other Potential i. Defendants” that the parties to the 2009 Agreement had in mind. “The basic principles of Florida law that govem this aspect of the partes” dispute are clear. Unless contract language is “unambiguous and free of conflicting inferences,” ambiguity “must be resolved as a question of fact In other words, unless the terms of an agreement leave - no reasonable doubt about the intent of the contracting partis, the ambiguity must be resolved by the wie of fact ordinarily a rial jury. The Court may not resolve any such ambiguity on a motion to dismiss the complaint. ‘Whether a contract is ambiguous “is a question of law — specifically, whether the agreement, in whole or by its terms and conditions, is “reasonably susceptible to- more than one ~~ Soncoast Cty. Church of Boca Raton, Ic. v. Travis Boating Cir. of Fla, Inc., 981 50.24 654,655 (Fa. Dis. Ct. App. 2008) (quoting No. Star Beauty Salon, Inc. v. Artz, 821 S0.24 356, 358 (Fla. Dist. CI. App. 2002). This principle is Subject to n exception, not relevant. ‘on this motion, that the court may resolve the ambiguity ss a matter of law where that can be done by undisputed parol evidence of the parties’ intent. Decoplage Condo. Ass, Ic. + Deco Props. Ins, Jnc..971 So. 24 860, 861 (Fla. Dist. CL. App. 2007) See Berkowitz v. Delaire Country Club, Inc, 126 So. 3d 1215, 1219 (Fla. Dist. Ct. App- 2012), Newnan v. Brigman, 475 So. 24 1241, 1249 (Fla. Dist. Ct. App. 1985); see aso Talbott v. First Bank: Fla, FSB, 59 So. 3d 243, 245 (la. Dist. Ct App. 2011) (“When a contract is ambiguous, an isu of fact is created that cannot be resolved by summary. judgment.) No. Star Beauty Salon, In, 821 So. 24 a 358.  14 intespretation™ That is so even where both sides insist hat language is unambiguous but ascribe “materially different meanings to it." oo oo Inthis case everyone agrees that the phrase “could ave been included as a potential defendant (‘Other Potential Defendants)” must mean something. No doubt that is so. Noris there ach dob tht better drafing probably could have eliminated any uncertainty as to the meaning. - In fact, however, the meaning of the phrase i fa from self evident for a number of reasons - o We perhaps should begin vith hc question of what was meant by “could have been included as a porential defendant” ~ a5 opposed fo “could have been included as defendant.” One might suppose that whether one was, or could have been, included as a defendant not included as a “potential” defendant — is clear enough, although even that seemingly simple supposition, as we will se is not accurate inthe context of his case. But the cancept of inclusion as a potential defendant” is even less capable of definition. Ifthe quoted language from Section 2 of the 2009 Agreement — tha is, the phrase “could have been included as a potential defendant” ~ Lambert v. Berkley 5. Cone. Asn, 680 So. 24 S88, 590 (Fl. Dist. Ct. App. 1996); see Miller» Kase, 789 So, 24 1095, 1097.98 (Fla. Dist. C1. App. 2001). Killearn Homes dss, In. v. Visconti Fam. 14d, 2) So. 3451, 53-54 (Fla. Dist. CL. App. 2009) Indeed, we might have begun with th ict that he 2009 Agreement defines “Othe Potential Defundanis 2 “any other person or tity who could have been included s a potential fondant without <pecifving in wha. Defendants brief sought o Solve that problem by senting that he 2009 Agreement “defies “Other Potential Defendants” 5 “any other oo: ty ho ould have bee included a5: potenti defendant” in Gifs Law Dit Eps despite the Fac tht the alized words do not appear in the 2009 iroement. Def. Mom, DKL 31 at 13 (emphasis added). Plinif, however, takes the same Sve pL. Mim Di. 43, at 10 (“The 2009 Release, by is toms, encompassed only ‘lat aginst Epsiein and “Other Potential Defendans' ‘who could have been included a5 potential defendant i the Florida Complaint”). Accordingly, the Court accepts the otis agreed glos on this point for purposes ofthis motion.  15 was intended to mean someone who was not actually a defendant when the 2009 Agseement was igned but wo might ave bec made a defendant previously i he plaintiff ad named him of her — a5 an actual defendant, then the word “potential” would be entirely superfluous. Thats so because the language would mean exactly the same thing with or without the word “potential.” Put another way, the phase under orsideration would ican exactly the same thing even if one deleted the word - “potential” entirely. - - - EE is a basic Fle of contractual construction Thal a contact should be construed, whenever possible, ina manner that gives meaning {0 every word and phase. The presumption is {hat contracting parties do not include words or phrases for no purpose. Nevertheless, the parties have bricfed this matte a if the word “potential” were not in the agreement at all. And as the Court So0s m0 other appropriate course, it will do so as ell It sees no way to construe it in a manner that would give non-redundant meaning to the word “potential.” So we come to the question of what vas meant by the phiase “could have been included as... defendant” At one level, of course, lcrally anyone “could have been included See 2, Golden Door Jewelry Creations, nc. . Lids Underwriters Non-Marine Ass, 117 7.54 1328, 1338 (11h Cir. 1997) applying Florida law); Premier Irs Co. Adas, £52 So. 24 1054, 1057 (Fla. Dist. Ct. App. 1994); see generally 11 WILLISTON OX CONTRACTS § 32:3 th ed.) (“To he extent possible, and excepto the extent thatthe partes anit a contrary intent by sain, for example, tht reals or headings are not to be Considered or given fect in determining the meaning of (heir agreement, every word, phrase or term of contract must be given elect. Fla. Tov. Grp. 100, LEC». Lafont, 271 $0.34 1,5 (Fl. Dist. Ci. App. 2019) C{NJo word or pat of an agreement 5 o be tested 8 a redundancy of surplusags if any meaning, Teasonable and consistent with oxhe pats, can be given oi) (quoting Royal Ans. Realty. Tres Bunk of Pam Beach & Tr. Co, 215 S0.24 336, 338 (Fa. Dist. Ct. App. 1968): sce ‘generally RESTATEMENT (SECOND) OF CONTRACTS § 203 (1981).  16 .. as a defendant If the plaintiff had wished to include someone else — anyone else — as a afer, she asily Gould ave don So. Socom can BE included as defendant ima lawsuit simply by including that person's name in the caption ofa complaint. Nothing ese is required. But neither party takes that position despite the fact it would be consistent ‘with the literal terms of the. 2009 Agreement. Rather, defendant argues that he “could have been included” as a “potential defendant” in the Florida Case because Ms. Giuffre made a general reference to “royalty” in her EE ‘Florida complaint, even though it did nof name Prince Andrew as a defendant nor even mention his name. Plaintiff rejoins that Prince Andrew could not have been included as a defendant in - {he Florida Case because (1) he was not subject to personal jurisdiction tere and, in any ase, Qe - claims that plaintiff brought against Epstein in the Florida Case were based solely on 18 US.C. § 22557 which created a federal civil cause of action in favor of anyone who, while a minor, was injured in consequence of a violation of any of any of several federal criminal statutes. As to the. latter, she contends that Prince Andrew could not have been sued in the Florida Case under any of * Be defendant so conceded at argument. See Transcript (hereinafter “Tr."), Jan. 4, 2022, at P See FED. RC. P. 106). For a clsr (hough misuided) llstration of his pin, sce Craig v. Pope John Pas 1, Cit Acton No. 00824,2010 WIL 1994620, 11 (DIDLC. May 18, 2010) (raming “Pope tn Post 11 Heaven vith God,” Pope Benedict XV1, the Holy Mother Roman Catholic Chote and any Cardinal and Archbishops and Bishops ofthe Roman Catholic Church” deendants and sccking 83 tilion, 9 million in damages). ! Florida Compl. § 32. 8 USC.58 159, 1990, 1591, 224100, 2242, 226, 251, 251A, 2252, 22524, 2260, 2420, 2422, 0c 225.  IY {ne Section 2255 predicate sates because thre was no basis for doing so. ST Ihe parties respegiive positions show that they agre tha the release language =te {he phrase “could have been included as a... defendant” — applies only if there is a nexus between {he person in question an the claim Ms. Giuffre made against Bpstn in the Florida Case. They disagree, however, as tothe nature of he requisite nexus. - - “The defendant argues tha the nexus is supplied by plaintf’s complaint inthe Florida. - asa Te charged Jeiey ESE, 1 quote he JefiAdaRt i Ts ease, wi “SexctaTieling and sexual abuse.” Tt alleged that girls whom Epstein trafficked were abused by others, including unspecified “royalty”! That, defendant submits, is enough. From the plinil's standpoint, defendant's position i oo extreme. As noted, the Florida complaint did not mention Prince Andrew, Moreover, Ms. Giuffe argues in substance that one “could have been included asa... defendant” (1) oly if that could have been done on the same oasis a the cli inthe Florida Case was made against Epstein — violation of one of more of the Seon 2255 predict cima sais ~ and sven then 2) nly ii person would have bocn subject to the persona jurisdiction of the Florida court, Yet there is no basis for concluding wat | defendant would have been subject othe personal jurisdiction of the Florida cour Nothing in Ms. —_— hs that complaint was fled the Florida Cs, the Court takes dial otc of its wards, efor the sth of the legatons, bt fo th fact tha hey were ured on behalf of the pein © bean "pita coml 121 2009, when the Florida Case as std, the Florida fong-am ste in evant prt mitt th excrese of personal uisdicton oer on Tsent in TCUTSANGES uch 15 Fe in sue here only i he alam aro rom the commission of a forious act within the  18 Giufie's Florida complaint indicates thatthe defendant violated any ofthe Section 2255 predites Se Norisiis rere to “Toyalty” Suicient o remedy this absences. The eux of the Florida Case vas ~~ {hat Epstein harmed Ms. Giulre by trafficking her for sex with himself and with others. Indecd, defendant's counsel made clear at oral argument his view that the complaint against Epstein was that Epstein “teaficked [Ms. Giuflie] to nusber of individuals, forced her nto sex slavery, nd ... forced [her] to have sex or be sexually abused by many people, including members of academia, - ~ncioding businessmen and 0 Gaegory of yally”™ Yet theres wo suggestion in the Florida Case ——— {hat his defendant was himself engaged in sx trafficking. In considering whether th only reasonable interpretation of the phrase “could have been included asa... defendant” i the one advanced by the defendant — Le, that it would inherently be unreasonable to constaue that phrase as refering only 0 persons who Gould have been sued inthe Florida Case on essentially the same theory as was Epstein and over whom the Florida court could ave exercised personal jurisdiction — it i helpful also to consider the context in which the 2009 State of Florida. Se FL STAT. ANN. § 48.1931) Q007); Beta Dywall Acquisition, LCC St & Fade PC. So.34 651, 653 (Fa. Dist. Ct. App. 2005) (discussing then FL. eS 48193010). Dut noing in the Florida complaint (nor any of th other teri propely before his Cour allges that Ms. Gil had a claim against tis font im out of he omission by him of any fotous ac n Florida. Defendant's on tht the Florida cout nevertheless could have exercised personal uisdiction on oo omopiraor theory, DI. 52 at 4-5, overlooks the fact ha the Florida complain, which oi to assenin specifi violations by Epsei of certain federal criminal sauts, hoes mot allege that Prince Andrew conspired with Epsicin 0 commit any of them. The Sonera reorance lo conspiracy “with thers, including assistants andor [Bpscivs] ey andor pilots, and oe socialite fendiparne, Ghislaine Maxwell, o forhee Epsinrs) act Florida Compl. 1 16, would not have been sufiient basis or the personal risdicion ver Prince Andrew. See United Techs. Corp. v. Mazer, Sse 560, 1282 (11h Ci. 2009) (-{aIny conspiracy-basd xereise of personal osedicion must be. founded on conduct commited in Horida by others that can be Airbuted to defendant) as a co-conspirator.” Tr, Jan. 4,2022,2032024.  19 Agreement was signed tothe extent context can be ascertained on the present record. tami, we do mot kno what, if anybing weal trough (he pres minds wit respect tothe specific terms of the 2009 Agreement. Hypothetically, we can imagine what someone {i Epstein’ position might have thought atthe time this agreement to sete the Florida Case ves made. Atleast Some of the goals of a such person presumably would have been to end the Florida Casey to gain as much protection for himself as he could ot agent involvement in similar gation iti Tir; ad 0.00 5 Toran acegpIabIe rice Tother words, a possible concermeould have been {hat (1) Ms. Give, having seted with Epstein, would sue someone else (2) who, iv tum, might make a claim aginst Epstein (a “Claim Over") based on a contention that Epstein should bear or at Least conte ony bil that person aight be found fo have to Ms. Gite. Obisining & release from Ms. Giufiie of claims against such a person therefore could eliminate the possibilty of a Claim Over against Epstein. But the objectives of one in Epstein’s positon were unlikely to have een shared by the other contracting panty, an individual in Ms. Giuffr’s position. And that malters. The gosls of one in Ms. Gules position hypothetically could have included getting as mach money as she could for seting the case and kecping as much of | her freedom 0 go after other alleged irongdoers as she could keep while still geting an acceptable sum of money. Limiting ne release language to persons who could have been sued ina particular court on a particular type of claim could secure that freedom to a substantial degree. “The logic of the situation thus suggests that the partes to the 2009 Agreement had competing goals, and the muddled relcase language that they agreed upon suggest tht they may have arrived at something of a middle ground: a release extending not as broadly as Epstein ideally may have wanted and someswhat more broadly than would have been a “best case” outcome for Ms. Giulio. Moreover, it would not be unreasonable to recognize, among othe considerations, tha the  2 Settlement amount may have been affcated by the views of both partis conceming the terms of the oo release. Epstein perhaps would riot have beeir willing to pay a price demanded for the broadest ~~ = possible release of other persons or, short of that, clearer language concerning the nexus between “Other Potentil Defendants” and claims in the Florida Case There are additional considerations supporting the reasonableness of plaintiff's - “interpretation of the phrase “could have been included as . defendant... * For one thing, the - ——— lorida Case was brought federal cout. The sole alleged basisof federal jusisdiction was Section ~~ 2255 of Tile 18 ofthe United States Code, which confers subject materjurisdiction on federal courts only with respect to claims based on alleged violations of certain federal criminal statutes. The complaint in the Florida Case specifically alleged that Epstein had committed a number of such Violations. But it nowhere alleges that his defendant committed any.* Tt not clear that a claim in {he Florida Case aginst this defendant would have been within the subject matte jurisdiction of the Florida court, even on a co-conspirator® or supplemental jurisdiction theory. Iti questionable Neither does her present complaint, Defendant argues in conclusory fushion that “Giuffe Sold have suet hen dirty To violating seston 2423" inthe Florida Case. Dit 52 a5. ut on hel fee, plaiir's allogations, ken rue, would not establish the “ranspors” lemant of § 2425) the “purpose of travel” clement of § 2423(b), the naturalization Clement of § 2423(@), or the “commercial advantage” clement of § 2423(d). Nor would her allegations, iaken a roe, have established an unlawful agement to accomplish on or more of the predicate offenscs, nor action intended to fuclate hose violations that pati tributed to Epstein in the Florida Case. The Court would ned to draw numerous inferences in the defendant’ favor to adopt his view tha plains claims should be isis on the theory that she would have had viable § 2255 clas against Prince Andrew fn the Florida Case, whether on director vicarious iaily theory. “ Prince Andrew’ assertion, ist made in bis reply memorandum, that Ms. Giuftie’s complaint in this action “alleged that Prince Andre aided and abetted Epstein’s federal sextrafTcking crimes and was Epstein’s co-conspirator in the alleged criminal enterprise” a proposition for which he cites eight specific paragraphs of the Complaint, DK. 52,at 5, cannot be take at anything approaching face value.  2 also whether the Florida court could have exercised personal jurisdiction over this defendant, even ~~ assuming tha subject iatier jurisdiction existed. — -—— = TL Inthe last analysis, it s not now the Court's function to decide which party's view of The first paragraph cited (§ 24) does not even mention Prince Andrew. The second through fifth (§§ 30-31. 34-35) allege 10 more than that Prince Andrew has said he fistmet Epstein in 1999 through Maxwell, thatthe defendant has been photographed with Maxwell at social events, that defendant has flown with Epstein and Maxwell _ onEpstin'splanc to various locations, and that defendant on occasion has visited ‘Epstein homes. While the existence of a relationship among putative co-conspirators. almost always is admissible in a conspiracy case, italone docs not; remotely approach ‘a sufficient allegation of a criminal conspiracy. The last three paragraphs the defendant cites (1 43-45) allege that the defendant, at The invitation of Epstein and Maxwell, engaged in ‘sexual acts with plaintiff without oo ‘her consent, knowing her age, and knowing that she was & sex-trafficking victim being forced to engage in those acts. If the allegations of the last tarce paragraphs are true, as they must be regarded for purposes of this motion, they actions would Have been reprehensible. No doubt defendant prosecutor or plaintiff might argue that the events aleged could be considered as evidence of an unlavel agreement. But they are Consent ss wel wih the absence of conspiracy or of any intention 0 aid and abet the ommision of prdicate crimes by Epstein andlor Maxwell. As the complaint on this motion must be construed in a light most favorable 10 the plain, thes allegations are eulficent to amy the day for the defendant on his theory. At ial, should the case proceed nt fu, he perhaps could have an opportunity to prove that Prince Andrew could have been Sued successfully in Florida ona §2255 claim, in which cas thse claims might be pertinent oan assorton of th release defense in this case. But this motion i nol the im for that. Pursuant 28 U.S.C. § 13674), the disict court “shall have supplemental uisdiction over ll of the clams that ar so related to claims in th action within such origina jurisdiction {hat hey form part of th same case or controversy. Such supplemental jurisdiction shall include. claims that include Joinder or intervention of additonal paris” 28 U.S.C. § 13670). However 28 USC. § 1367(c) provides that district courts may decline 0 excise Supplemental oiscton over claim under Section 13676) if “(1th lam raises a novel or complex fe of Sito aw, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has. dismissed all claims over which it has orginal jurisdiction, or (§) in exceptional heumetanes, thre re othe compelling essons for declining jurisdiction.” 1d.§ 136700). Given disc sorte: broad discretion to decline supplemental jurisdiction under 1367(6) {he Court can do itl more than speculate sbout whether any tate nw fort lis predicated on Section 1367 would have been within the Florida courts subject mate jurisdiction. See, Utopia Provider ys, Inc. . Pro-Med Clinical Ss, LLC, $96 34 1313, 1328 (11th CE 2016) (upholding su spon dismissal of sae aw claims “[glven th deference we: afford a district cours decision whether 0 exercise supplemental jurisdiction”).  2 he meaning of the term “could have been included as a potential defendant” inthe Florida Case propel elle th parts ent. tis Gough to Gone (aL he meaning of is pivotal phrase - the contract is not by any means “unambiguous and free of conflicting inferences.” The parties have articulated a least two reasonable interpretations of the critical language. The agreement therefore is ambiguous. Accordiagly, he determination of the meaning of the release language in the 2009 Agreement must await further proceedings. - - ee Whlthe forego disposiGve of defendants motion fo dismiss on the bass of the 2009 Agreement, the Court turns ow to his other arguments for dismissal, which reston independent grounds. 2 Whether Defendant is Entitled to Enforce the Release as a Third Party Beneficiary of the 2009 Agreement As very general matter, the only persons who can enforce provision of a contract are: partes to that contract the people who agreed to it. The defendant was nota party to the Agreement betwoen Epstein and Ms. Giuffre. Accordingly, even if the releasing language in the 2009 Agreement included the defendant amon the persons Ms. Giuffre released, the question would remain whether the defendant may take advantage of that release under Florida law. That depends on whether Epstein and Ms. Giufire intended that he be able 10 do so ~ in other words, whether he vas what the law calls a third-party beneficiary of the contract Under Florida law, it i “[elssentil to the right of a third party beneficiary . 10 {enforce contrac 0 which he or she i not a party tha] the lear intent and purpose of the contract 7 Suncoast Cy, Church of Boca Raton, In. 981 So. 24 a 655 cations omit).  » {oas] to iret nd substantially benefit he tind pay “merely incidental o consequent TT i paty befiiny O Gontrac may hot ue for itsenforcement™ Te «Relevant Provisions of the Agreement Intl case, thre are substantial indications on the fice of the 2009 Agreement itself ha Epstein and Ms. Giff did not lealy intend for the releasing language vith respect 0 “Other poeta Defend" i The Florida Case; whatever thal wes intended: to mean; to direety” primarily” or “substantially” benefit those persons. As initial matter, one reasonably might onelude (although that may not be thenly permissible {inference for reasons already sited, that Epscin's purpose in secking wobtina release of persons othe than Epstein and the ofber “Second Parties” vas primarily and directly © protet himself from becoming embrofld in future ligation. That gor ~ even assuming ha the requirements of “lear” nfention to benefit the persons leased “primarily” and “substantially” were satisfied, which is doubifl — would have been served only If persons arguably within the releasing language were avare oft and, fate sed by Ms. Give, suecesslly could ave assertedihe 2009 tgreementrelease against hr. Bu the 2009 Agreement ontans provisions iat appea to hve ben tended to make sure that such persons would not be aware of the release and, even if aware of i, were prohiited from or at east severely limited in thei ability 0 se t defensively. - Dhompsans Cam. Unions Co. of New York 2500, 24259,262 (la. 1971) (emphasis Dt . Reconco » negon Nat'l Iu. Ca, 312.50. 34914,917 (Fl. Dist. Ct. serio dni No. SC21-576 2021 WL 2558930 Fla June 24,2021): Ler A wi Cont, Th 86 So. 24 1359, 1362 (Fla. Dist. Ct App. 1986) (holding act must “sar establish he partes’ nent fo create a ight primarily and rectly benciting th third pay” (emphasis added). 7 eKimey-Green, In. . Davis, 66 So. 20393, 396 (Fi. Dist. CL App. 1992).  2 First, Section 4, the confidentiality clause, provides in pertinent part, that oo wie Paries shall not provide iy copy, if Whole or if part of iN any form, of this © Settlement Agreement 0 any third party, except o the extent required by Jaw or rule orin response toa validly issued subpoena from a governmental or regulatory agency. Morcover, neither this Settlement Agreement, nor any copy hereof, nor the terms hereof shall be used or disclosed inany court, arbitration, or ther legal proceedings, except to enforce the provisions of this Setlement Agreement.” So both Epstein and Ms. Giuffre were probibited from providing all or part of the 2009 Agreement _ evento anyone who might have been among the persons possibly included within is releasing language. The second is a portion of Section 2, th release provision, that provides: - «Additionally, as a material consideration in seting, First Parties [Ms. Givffic] and Second Parties (Epstcin] agree that the terms of this Settlement Agreement are not intended 10 be used by any other person nor be admissible in any proceeding or case against or involving Jeffrey Epstein, either civil or criminal" Taken together, these provisions at least reasonably could be interpreted as meaning hat Epstein and Ms. Giuftre agreed that (1) neither would disclose the 2009 Agreerment in whole or in part to anyone except upon compulsion of legal process, and (2) no one was intended to use the terms of the 2009 Agreement, which of course included the release language upon which the defendant relics, in any proceeding or case “involving Jeffrey Epstein.” Dk 32, Bx. A at 3 (emphasis added) 1d. ax 2 (emphasis added). These limitations appear 10 attach even where the Agreement contemplates that Epstein could foveal plaintifPs identity in connection with “ongoing of Toture Nigaton-relted or claim-related matters” fd. at 4. Section 4 anticipates that Subpoenas and other legal process could result nthe agreement's disclosure in cass ike this ane, and it limits how i may be “used” even if so discovered. Whether or not disclosure owed in whole or in part to Epsici’s abilty © disclose plains identity under the conditions provided in Section 5 would be immaterial Atoral argument, defendant claimed that § 7 ofthe agreement supports his position that he {sentitled to enforce the release. In relevant pa, it provides: “Should the federal court ot  2 bh Defendant's Cases Are Inapposite - “Defendant nevertheless contends that Florida courts have “long recognized that at =~ tended third-party beneficiary of a broad release... has standing to enforce that release, ever when the release does not identify tha third party by name.’ That is at least an unduly broad generalization. © The firstoase hecites, Olsen. O'Connell held that purchasers of eal property were id party beneficiaries of a contract between sellers Of iat propery and folders of an existing judgment lien on it, There, however, the court indicated that the agieement existed only as a retain jurisdiction, he Parties and any third party) agree that the” state courts is Palm . each County “shall have exclusive jurisdiction over the subject matte and shal have Dersonal jurisdiction ove the Parties and third partie)” Id, a5 emphasis added) see es Jan. 4,202, a1 39-42. But his i unpersuasive As a inal mater, the partis o the agreement bad no authority to bind third parties. To sore. the Court recognises that defendant’ point s different, viz. that the references to Cid pass § 7 evidences an intention o benefit oihers. Perhaps. But it docs not evitanty follow that benefiting Prince Andrew or others in comparable positions was a primary purpose of the relese, ” Complicating defendant's argument even further is the way in which the terms ei and bind party’ ars used olseoehers in the agreement. Section — the only ovis sation to us the teym “4hird party” — pueports 0 create rights and obligations with eect to disclosure of the “amount of he] setlement.” The reciprocal confidentiality ant provide: ~Any find party who i advised ofthe setement amount must sign 3 Seam acknowledging that such third party i ware of hi confidentiality provision and bound by i, including the provisions contained in the Settlement Agreement eating fo he nforcament o tis confdenialiy provision” Dt. 32, Ex, A a3. It would be ively veasonsble to erp § 75 references to “hird parties” and “enforcement” ening specifically § 4s reciprocal confidentiality provision, which, in addition to laying hos two ers ogethe, is the oly ther lace inthe Agreement where either om appears at al. What is more, § 7 specifies that i a breach of confidentiality were ihe agarioved First or Sceond Parties . . - may seek @ remedy with the Court"—no third party rights attach. Jd Dhu3L als. 466 S0.24 352 (Fla. Dist. Ct App. 1985).  2% sccessasy part of the impending sale ofthe propesty fo th third-party buyers. The sellers had sought i agreement oily mse they “ley Gould nol onstmmate the sale-of the property without — obtaining a release of the judgment lien” They made the deal with the judgment creditor in order to affect [si] the sale to” the buyers. The buyers ~ the urmamed third parties — were so integral fo the deal between the sellers an the judgment creditor tht th court hypothesized that they were “ikely even actual parties to the agreement a evidenced by their execution of the note and mortgage. payable o eles] and ti losing of Ti len eines upon i agreement” his case bears” no resemblance (0 Olsen. Defeadant points next to Hester v. Gatlin and Dean. Bennett M. Lifer Inc. * both of whic volved ao sccdents with mulipl potential tfesons. Tn Hester, the owner of car volved in a multi-car accident was held to be a third-party beneficiary of a release agreement that had been executed between the plaintiff in that case and other drivers who were involved in the accident There, the release langutge extended to “any and all other persons andlor corporations who are or may be liable for injures or damages sustained as a result of th subject accident.” And in Dean, a court held that the employer of a driver who caused a fatal car accident was a third-party Ca © as. 250.2060 (i. Dist Ct. App. 1976) © 32650.209 (a Dis CL App. 1976). "ter 9250.20 060. "we  2 beneficiary to. setement agreement between the driver's insurance company and the dministatix tthe vidi esate. The Setllemant thre inchided general language FElCang “any otherperson, corporation, association or patncrship charged with responsibility for injuris to the person aod property ofthe Undersigned, and the consequences flowing therefrom, asthe result of” th fatal accident.” . as Ms. Gili observes in hr bri, the Hester and Dean releases were confined © TT discrete events on. ‘specific day - identifiable ‘subject accidents circumscribing narrowly the subject : matter of the purportedly released persons or claims.” So they too are inapposite here. And there is a further problem common to all of defendant's cases. None of the cases. that defendant cites dismissed claims against a defendant-putative third-party ‘beneficiary who asserted a release defensively at the ‘motion-to-dismiss stage.” Prince Andrew's view of “Other Poteatiol Defendants,” on the ther hand, secks to confer rights on unnamed third parties that would be orders: of magnitude broader those contemplated inany of the Florida cases that have been brought 10 tis Court's attention. Moreover, whichever way these comparisons break, they matter litde on the facts of this case. The ultimate goal in any case involving a contract is to determine and give effct to the {ge intention of the contracting paries”™ Unlike the cass cited by the defendant, ‘where the parties” intentions were. perfectly plain, at least by the time the cases were decided, the {atentions of Ms. Giuffe and Epstein concerning the release are anything but clear he, at feast at ! Dean, 336 5.0. 2d at 394. " De. 43,at 12-13. " Hd.at 13. ly of Tampa. Thorton Tomas, PC. 646 50.2421, 282 (Fla. Dist C. App. 1999).  | 2 is stage. The cases upon which defendant relies are of no assistance in determining hose © intentions. — - TT SE The Dershowitz Argument Finally, the defendant nevertheless argues tht bis interpretation of the Other Potential Defendants clause is the only reasonable one on the basis of alleged events relating to Alan - — arshowitz, & lawyer and reired Jaw professor whom Ms. Giuflre has sued fi another case Defendant asserts that Ms. Giuffve “dismissed her claims against Professor Dershowitz... when this release was raised to her as a potential defense.” This, according to Prince Andrew, proves that {he 2009 Agreement released Mr. Dershowitz and, by parity of reasoning, the defendant n this ase, he theory apparently being that both were Other Potential Defendants in the Florida Case. During oral argument the Court questioned that argument based ons suggestion that Mr. Dershowitz was covered by the release in the 2009 Agreement because he has been one of Giure v.Dershowitz, No. 19-3371 (LAP). Tr, Jan. 4,202, at 11:15:20; Dk. 52, 12, 3-4; Dk. 52, at 2.1. The argument ests on th factual praise that the release was asserted privately cn behalf of Mir. Dershowitr. to Ms. Giufres counsel, who acquiesced in tht assertion and backed Twit respect to his proposed addition, in Ms, GiufDre’s case against Ms. Dershowitz, of ew battery claim when thratened with Rule 11 sanctions. That factual premise is not Supported by anything in Ms. Giuffe’s complaint in ths action. Par of the premise is Support by a cial, and pat contradicted by another provisions na document fled in the emhowtr ation of which judicial notice now is taken. Dk. 32, Ex. Hat 2. Inasmuch 1s Judicial notice extends only o stblishing the contents of that document, but not uth, However, the only thing t establishes for purposes of this motion i that counsel for Mr. Eovanowitz and Ms. Giuffe agreed that the document “shall not a any time, or for any Purpose, be. consisved #5 an admission by citer party of the valkly or invalidity Do mintfr's batery claim or Defendant’ release defense, of the truth or falsity of the factual predicates thereto.” 1d. 4  29 Epsci's ttomeys” and therfore was among the “Second Pars” ~ in ther words, that he was erly hele epee whee eas a Ot Point Defendan, sth dofendont now claims that he is. On further reflection and analysis, however, the suggestion that Mr. Dershowitz was covered because he was one of the “Second Parties” was not necessarily correct. A release bas three essential elements: (1) one ‘who gives the release, usually referred 025 eleasor; (2) one against whom the releasor gives up or surrenders something, such a person oo usually being referred 10 as a releasee; and (3) description of what is being released, whiclmay be general (ell claims whatever that the releasor has oF may have against the rleasce) of specific (0 a releasor’s cli for damages caused by the relasee’s motor vehicle). In Section 2, the category of releasorsis plain enough: “the First Parties.” Theroalso fs description ofthe efeasees: (1 the Second Parties and [2] any other person or cnt who could have been included esa potential defendant (‘Other Potential Defendants’).” The ‘problem, however, is ‘with the claims against the Second Parties (other than Epstein) that purportedly were released. Specifically, Section 2 says that he clams released were cans hat the Fir Pats ver had or may have “against Jeffrey Epstein, or Other Potential Defendants for, upon, or by reason of any matter, cause, or thing whatsoever ..2™ Strikingly, it does not say that the First. Parties released the Second Parties (other than Epstein personaly), as such, from any particular claims at all, whether al} claims or some specific leis. Accordingly, Element 3 of the essential elements of a release — the specification of what claims against the Second Parties were being released is missing as 0 the Second Parties. Accordingly, i would be reasonable, indeed, arguably unambiguously clear, that the 2009 Agreement did not ” Tr., Jan. 4,202, at 12:24. " Dkt. 32, Ex. A, at 2 (emphasis added).  30 release any clams aginst any Second Parties except (1) for Epstein himself” and (2) those Second pais en Epi hr ion beng Second Pres, cae wih he defnonof Othe Potential Defendants, whatever that i. To be sure it might be argued that Section 2 should be read as a broad release ofall aims that First Prtes had or may have had against ll of the Second Parties notwithstanding its . failure to say that. But that altemative interpretation cannot be the only reasonable view of its - caning Accord the mean; dec 51 Second Pats aS such (Other han Epstein), {he validity of the ease cannot be decided on tis motion The difficulty the problem present, however i relevant to the extent t demonstrates yet agen ht the 2009 Agreement, whateverit vas intended to mean, is riddled with drafting problems and ambigitis. . The 2009 Agreement cannot bese 0 demonstrate, leary and wnambiguously, hat he paris tended the nsteumentdisely,” “primarily” or sbstanialy to benefit Prince Andrew. The existence of the requisite intent to benefit him, or others comparable to him, i an isu of fact at couldnotpropety be decided on his motion ven defendant fell vithin th easing language, which tslf is ambiguous, Thas, independent of whether the release language applies o Prince Andrew, the agreement at a minimum, is “reasonably susceptible to more than one interpretation” on the equally important question of whether this defendant may invoke 1 As a mater of Florida Jaw this Cour anmot rewrite the 2009 Agreement to giveth defendant rights where th agreement docs not leary manifest an nfent 0 create them. 7 we have seen, Epstcin was included inthe deinion of Second Parcs "Se og Lambe, 680 So. 2030590; Miller, 789 So. 2d at 1097.95.  an lL he Complaint States Legally Sufficient Claims — ~~ Ee Ms, Giuffe’s complaint asserts two causes of action. Both ae sta law tort clas, the first for battery and the second for intentional infliction of emotional distress (HIED")- ‘Defendant moves to dismiss both on the theory that plantas not alleged adequately any violation © ofthe New York Penal Code. - . - oo A Legal Principles To survive a motion fo dismiss under Rule 12(6)(6), a complaint must allege fucts uct to “state lam to relic that is plausible on ts ce” This standard is met whee the pleaded fctual content” which on tis motion must be assumed to be tru, permits a “reasonable {ference that the defendant is lable for the misconduct alleged” A complet need not “ariipate potential afmaive defenses” or “afimatively plead facts in avoidance of sch defenses” As i th case with defendants argues predicated on the 2009 Agreement, the Court may nit dismiss on an affirmative defense unless “the defense appears on the fice of the complaint "Bull Adanic Cor. Twombly, 50 USS. 544,570 007). ro aba, 556 US. 662,663 009) tabasv. Dison, 480 E30 636,640 0 Cir 2007) see Childers v. New York & Presbyterian Toon 36. Supp. 34292, 315 (SDNY. 2019) © reine  » Bb Analysis TT The Complain KTegaly Sion Plaitif’s complaint plainly alleges prima facie cases of battery and IED under New ork law. Indeed, defendant docs no diretly contest whether plaintif’s allegations satisfy the elements of those causes of action. - © Theallegation that plaintiff was forced to sit on defendant’ lap while he touched her {x sufficient {© state a battery Claiin under New York law, regardless of which part(s) of her body defendant ulimately s alleged to have touched. To state such a claim, plaintiff need allege only . hat there was “bodily contact that the contact was offensive and that the defendant intended to make ho contact without the plaintifF's consent” Contact is offensive if it is “wrongful under all the reumstances,” which certainly i reasonable inference from Ms. Giff allegations The only intent required is an intent to “cause bodily contact that a reasonable person would find offensive. Any intentional touching effected “or the purpose of satisfying [one's] sexual desires” or made vith knowledge “tha [plainti] vas a sex- trafficking victim being forced to engage in soxtal acts with him” would permit a reasonable person to find that th alleged contact was nappropriat in ll ofthe circumstances, to say nothing of the allegedly forced sex acs of sexual Leymanv. U.S, Dep't of Homeland Sec. Transp. Sec. Adin, 804 F. Apgx 5,80 24 Ci. eg Heian. Soto 199 A.D.2d 423, 433, 49 N.Y.24 538, 539 (2d Dept. 2002). Messina v. Matarasso, 284 AD24 33,355 T29 NY-$2d 4,7 (Ist Dept. 200) (quoting Wise, 350 ALD34 $15,819, 606 N.Y.$1 444, 445 (d Dept. 1999). " tmatrong ex rel. Armstrong . Brookdale Univ Hosp. & Med Cir, 425 P34 126,134 04 Ca af Gon 345.5107 YS54184, 189m 22a Dept.  | 3 intercourse pe sufficiency of laGtP IED claim sscilrly apparent. To stitean IED claim — — ander New York law, plaintiff mustalloge “(1 extreme and outrageous conduct; 2) nent to cause, or reckless disegard of a substantial probability of causing, severe emotional diszess; 3) a causal connection between the conduit and the injury; and (4) severe emotional distress.” © Defendant does not challenge the complaints sufficiency as to any of these clements. lai as alge severe Anatol ies SHE legES lit vs “let and proximate Tes of Prince Andrew's criminal acts” She asserts that he “knew or disregarded the substantial Jikelihood that [is] actions would cause Plaintiff severe emotional distress” Aud, although she So alleges in her complaint, it Should go without saying that the alleged conduct, if it occurred, . reasonably could be found to have gone “beyond all posibl bounds of decency and i inolerable in acivlized community.” "compas Suto. Fishman, 164 £34820, 27 (2d Cir. 1999) cing Howell. New York Pos Co. SINY24115, 131,596 N.Y.$ 24350, 353 (1993) "compen a "am 47: see Chanko . Am. Broad Companies In, 21 NY 3446, 56,29 NY.S3¢ 879 3016 ining extreme and uae conduct hat which fs 50 extreme degre a3 a sei bounds of dency, an fo b regarded ss atrocious, and utery ized conmanity” (cations and intemal quotation marks omited); Coyne & Paralympic Comm, No. 20-CV-1178 (FISICFED, 2021 Wi. 1820251, 2029 (NDALY. Oct. 15,2021)  3 2 Defendant's Contention thatthe Plaintiff Was Obliged to Plead Specific Facts CT "Demonstrating Violation ofthe New York Penal Lay Is Incorrect —_ Abandoning reference to the causes of action in the complaint, defendant seeks dismissal on the ground that plaintiff “has not adequately alleged a violation of the New York Penal Code™ He insists that plaintiff is required to allege “conduct which would constitute a sexial offense as defined in article one hundred thirty of the penal law.” ‘The argument selies heavily on . _ theobscrvation that lini’ claims would be time-barred butfor the New York Child Vietims Act (“CVA”), which revived child sex sbuse claims “tid to an alleged violation of New York criminal law Defendant's view of the pleading standard s at odds with the Federal Rules of Civil Procedure. Rule § requires only “a short and plain statement of the claim showing that the pleader is eniitled to relief" on the theory asserted.” Here, the CVA does not create plaintifT’s cause of action. She is required only to plead facts sufficient o allege battery and TED. Whether any of the alleged conduct rose toa violation of New York Penal Law goes only to the question whether Ms. Giufiie's claims are tife-barved = that is, to an affirmative defense. When defendant asserts such 4 defense, it will be bis burden to establish that the claims are untimely. Whatover hurdles the CVA imately requires plaintiff to clear to defeat a statute of limitations defense ave not relevant on this "basta "ld quoting nd ding emphasis 0 N.Y. CPLR 214-0). NY. CPLR 214g Holloway » Holy See, No. 19 Civ. 2195 (NRE), 2021 WL 1791456, a3 n2 (SDNY. May 5,2020). 7 for ovr a0)  35 motion” 3. Plaintiff's IED and Battery Claims Are Not Duplicative The defendant argues next that Ms. Giuffre’s IED claim should be dismissed as duplicative of he battery lam. He says this i so because “under well-established New York Law, claims are duplicative when both arise from the same. facts and seek the identical damages for each ee ulleged breach” Bu Ms. Gufs clams do neither. — Defendant's motion misunderstands the two causes of action. PlaintifF's ITED claim aise, at fast in part, from alleged conduct that forms no element of her battery claim. Ms. Giuffre alleges, among other potentially distinguishing conduc, that the defendant caused es 0 witncss the abuse of another victim. “0 That allegation thus alleges injury flowing from different conduct than {he alleged non-consensual physical contact. As elim i not duplicative where a plaintiff has set Of cours, the complaint does allege that the condust iss to the level of an Article 130 Sioation, “including but not limited to sexual misconduct s defined in Aticl 130.20 ape Tb ie degree a defined in Article 130.25, rape in th first degree a defind in Article 150.55, Toei touching 4s defined in Arle 130.52, sexual abuse n the third degree as efi in Article 130.55, and sexual abuse in th first degree a defined in article 130.65," Supported by her actual allegations. Compl. § 67. There is no colorabe argument that ants atu of fmitations defense appears “onthe face of the complaint” Pani 152 FSi at 74 of Doe . Baram, 20 Civ. 9522 (ER), 2021 WL 4847076 (SDNY. Oct. 15, $51 denying motion to disniss ven where complaint did nt cite specific provisions of ‘Article 130) Dit. 31 at24 (quoting Deutsche Bank Nat | Trust Co. v. Quicken Loans nc. 810 F34 861, 265 (ad Cir. 2015) (intemal citations and quotation marks omitted) (spying New York aw) Compl. 139.  36 forward “substantiating conduct that differs from... other causes of action,” her ITED clam is not ~~ duplicaiive of her battery claim. Regardless of What share of het injuries, if any, is duc to battery ~~ committed against he person, her TED claim therefore must be permitted at this stage to proceed because she has alleged potentially tortious conduct in addition to battery. Moreover, as defendant admitted during oral argument, the single satisfaction rule would foreclose plaintiff from recovering more than once for any given harm. - - - More substantially, he to claims do not seek identical eet. Ever thongh plaintiff seeks damages on each claim, her requested reff does not entirely overlap. To be sure, Ms. Giufre asserts that the alleged battery caused some measure of “extreme emotional distress” and “psychological trauma.” But when drawing ll inferences in plaints favor, the complaint pleads facts suicint to allow a reasonable jury to return a damages award on emotional distress thats over and above what it might award on battery. As it stands, any risk of duplicative recovery may be resolved by jury instructions." tis for these reasons that batery and IIED claims routinely proceed Sclooleraflv. City of New Tork, 103 F. Supp. 34.465, 521 (S.D.Y. 2015); see also Cha + Donovan, 357 F. Supp. 3d 276, 285-89 (SD.Y. 2019) (holding a defendant’ text nesses pressuring; pln to engage in sex supported a separate IIED claim since that potentially tortious conduct” was ot subsumed by any theory of battery). on “Te, Jan. 4,202, 22021. Comp. 565. See Bender v. City of New York, 78 E34 787,793, 794 n.5 (24 Cis. 1996) (concluding that atleast prt of 1h jury sulle from the bttery— emotional pain and suffering —is part of the injury Suffered from th emotional injury ort” and suggesting th folowing Tnguage fora iy instruction to prevent duplicative awards; “Any damage award forthe cational distress claim must be limited to the compneat of injury you find sustained for {his cam, if any, over and sbove whatever emotional distress you have already compensated by your awards or other claims”).  | 37 in tandem under New York law." IL The Attack on the Constitutionality of the New York Child Victims Act Is Without Merit The final ground on which defendant moves to dismiss the complaint is that the VA's claim revival provision - in other words, the limited extension of the statute of limitations for civil claims by child victims of sexual abuse — is unconstitutional. ‘Specifically, he argues that {fie New York State Legislature violated he Due Process Clause of te New York Constituiom whem ~~ it temporarily revived child sexual abuse clams that otherwise would have bec too ate. Defendant is not the first litigant to advance this argument, which has been rejected See e.. Laurie Marie M.v Jefirey T.M. 816 F.3d 214, 227 2d Cir. 2016); Chau 357 F- Supp. 34 21 288; Canosa v. Zi, No. 18 Civ. $115 (PAE), 2019 WL, 498865, at #27 (SDNY. Jan. 28, 2019); Doe v. Alsaud, 224 F. Supp. 34 286,295 (SDN.Y. 2016). See N.Y. CONST. ar. 1,§ 6; N.Y. CPLR § 214-5. At oral argument, defendant shifsd his ‘round extensively, suggesting that formes Governor Andrew Cuomo twice extended the vival period fixed by the Legislature fo he commencement of actions covered by the Act by exccntive onde and that he Governor's action as unconstitutional. Tr, Jan. 4. 2022. 2422.26, This argument is based on an inaccurate factual premise, comes (00 late, and is without meri in any case. First, this argument surfaced only during oral argument. As new arguments first made in 8 teply brit are oo late it follows necessarly hat the same is tru of new arguments ist ‘ised at oral argument Second, is true tht the Gover extended the original extension period, buthe did so only ‘once, see Excoutive Order No. 202.29, Continuing Temporary Suspension and Modification of Lows Relting fo he Disaster Emergency (May 3, 2020), not twice as defendant claimed, “9 the Legislature subsequently extended it again. See 2020 Sess. Law News of N.Y. Ch 150 (5. 7082) (McKinney). Thus, the timeliness of plaints suit depends only on the Legislature's action, not the Governor's. “Third, he Court sees no meaningful distinction between th Legislature's enactment of the original fovival statu and its later extension of i. Accordingly, the consttutionaliy of the evivalof the imitations period tur entirly on whether the New York Legislature deprived. Trince Andrew of constitutional ights by reviving the imitations period either generally or as applicd to this case. The Court thinks not  38 by every New York state and feral court 10 have encountered it” And it bas been ected TT repeatedly for good reason. - SEARS oo Drawing primarily on New York cases from the 1920s and 19505," defendant urges hat “{nleacy a hundred year of precedent male clear that claim revival is permitted only when there {san injustice of type that makes plaintiff legally unable fo sue J" Whatever the bisoricel practice may have been, the New York Court of Appeals recently made clea thatthe est For whether eG Claimerevival statute rns afoul of ie New York Due Process Clauses: simply whether the revival —— statuteis “areasonable measure to address aninjusios.”"* The CVA’simited claim revival window vas a reasonable measure to address an injustice and wel within bounds of the new legal standard articulated shorty before ts passage. As another judge ofthis Court recently concluded with respect . 10 Ms. Giuffies pending action against Ms. Dershowitz, “New York Couns’ historical skepticism of claim-revival provisions appears to be just that: historical" Defendant suggests that the Legislature “lacked the constitutional authority fo revive Farrell, 2021 WL 4820251, at *9 3 PC-41 Doe v. Poly Prep Country Day Sch, 20-CN- a coy (S18), 2021 WL 4310891, at #7 (EDN. Sept. 22, 2021); PC-41 Doe. 2071 OL 701834, ot #1 (E.D.N.Y. Mar. 1, 2021); PB-36 Doe v. Niagara Fall Cty Sch. Dist, 152 NY S54 243, 248 (N.Y. Sup. Ct. Niagara Co. 2021); Torre v. Portvile Cent. Sch, No. 176 2020 WI 856432, at 4 (N.Y. Sup. Ct. Cataraugus Co. Feb. 21, 2020); ARKS Doc st of Rockville Cir, No. S006D10/2019 (N.Y. Sup. Ct. Nassau Co. May 11, 2020) Giere Durshowis, 19-0v 3377 (LAP), 2020 WL2123214, a 2 (SDNY. Apr, 2020). Dk 31, 2124-26. 1d a2s Jn ve World Trade Cir. Lower Manhattan Disaster Site Lig, 30 N.Y.3d 377, 400, 67 NY.$.3d 547 QO). Dershoviz, 2020 WL 2123214, ¢2.  39 clams” for sexual abuse plaintiffs who have “reached adulthood .. within the applicable thres- - year statute of limitations." His argument findamentally is that enforcing the usual statute of = imitations to bar claims of child sexual abuse causes no “injustice” where “those who wished to sue were not bared from doing so” solely because they were minors — in other words, where the victims became adults at a time when they could have brought suit befor the statute of imitations period expired." The Court of Appeals, however, has made clear also that “fin the context of a - ee elaimrevival tai, here 0 principled way Tor @ cour fo test Whether @ particular injustices serious’ or whether a particular class of plaintiffs is blameless; such moral determinations are left to the elected branches of government” ns Ms. Gia notes in hor oppositon, a range festive judgments undergind the provison's patent consitutionality, both on its face and a applied to her aims. These include New York's comparatively restrictive limitations period for sexual abuse claims, improved understanding of vitims’ barriers o coming forward with those claims, and the imminent threat that abuses pose to public safety." Each of these is capable of insulating both the nial one-year revival window and its subsequent extension from a New York Due Process Clause challenge, (052 nothing of the latter measure’s relationship to ensuring acess (0 justice during a gobal pandernic. As to whether the claim-revival legislation represents a “reasonable measure.” " bestwaean, "wan eve World Trade Cir. Lower Manhattan Disaster Sit Lit, 30 N.Y 34.34 400. "esa. —  “© defendant's most discernable objection i that “the legislature hastily passed legislation to amend the. “GVA by doubling the claimrevival period from one year to wo."” “He contends that the ~ Legislature's one-year extension was not “reasonable response” in light of the Govemor’s near- contemporancousexeculive order extending the filing window by five months on account of COVID- 19. He argues also that there is “no indication” that the New York Court of Appeals “ever [has) approved of a legislature's extension of the deadline for filing time-barred clans in the middle of TT theonginal claimrevival period” a - Withor without a global pandemic, New York's modest two-year revival window was a reasonable measure for remedying justice to vies without reading upon the state Constitution's Due Process Clause. Not only wast reasonable, t was modest compared tothe clair- revival measures adopted by other state legislatures in the child sex abuse context. Numerous states ave opened revival windows hat were two years or longer from their inception, some of which were ater extended for additional multiyear periods." Otherjurisdictions have enacted indefinite claim- revival windows. And in some of the states that have adopted an age-based approach, Ms. 7 estas. a "ee. 2, 10 DEL CoDE§ 8145() opening two-year window begining in 2007) Seckan bias of Si. Francis de Sales, 15 A34 1247, 1258-59 (Del. 2011) (confirming ontiuionshiy)s 2013 Mim, Sess. Law Serv. Ch. §9 § 5(0) (amending MINS. SIAT. § $14,073) (opening three year window beginning in 2013, KE v. Hoffman, 452 N-W.2d 309,513-14 (Mins. 1990) (confirming constitutionaity of inital revival period); HAV. REV. Stan, § 657-1.8(2)b) (extending orginal two-year window eight years). Ge eg 12 VE STAT, ANN. § S220 7 GCA. § 130116)  4 Giuffve’s claims would have remained timely for at east another decade. Certainly, each of those h evival statutes was passed against the enacting stafe’s unique constitutional ‘backdrop. Bit each is —— relevant to sho thal the measures here selected by the New York Legislature were among the most ailored and most mindful of the due process concerns defendant emphasizes in bis motion. Itis difficult o imagine substantially narrower measures capable of addressing the injustices animaling he GVA. ndocd, our atetion as not ben called o any sate or tritory that ever has adopted a oul abe cm evival window shorer bam one year Defendant's observation that the CVA revived claims for those who suffered harm 25 a result of sexual abuse when they were under the age of eighteen, when the New York age of consent for other purposes ows seventeen, does ot bea onthe CVA constittiolity. ™ There are many ways a plaintiff may establish that a sexual act was committed without bis o her consent. Such acts also may be nonconsensual on more than one legal theory. True, lack of consent is established as matter of law for individuals who were under the age of seventeen at the ime of the offense. But that ft says nothing of the reasonableness of reviving claims of others who were over seventeen but less than eighteen when they were abused. Lack of consent in such cases can be established at least by physical force or actual or implied threats. Contrary to bis assertion, defendant's concerms over “false memories” and other evidentiary matters are not always greater in cases im which the alged victim clais that he or she acquiesced as result of sch duress. Even ee eg, 9RLGEN. Laws § 9-151 (opening window unl age 53 as against perpetrators): on Laws ch.260 § 4C (opening window unl age 53 as against perpetrators); Srey revie, 41 N.E.3d 732, 739-43 (Mass. 2015) (confirming constitutional). See Dit s2at8. i  2 where a claimant can establish lack of consent as a matter of law, other evidence — including - ‘Subjective evidence — often is Teqited o prove the Gonduct that tually ocourrd. Defendants far reaching speculation about what evidence will or will not be relevant to the issue of consent, both in his case and in others like it, is no basis for distinguishing between claims brought by victims who were under seventeen and those where were under eighteen. The CVA's creation of a narrow window forallowing proviously time-barred child sexual abuse claims to proceed is neither more or Yess reasonable (oF aving set the upper age Timit for those Who benefit front that window arage eighteen rather than seting it at the legal age of consent, seventeen. Lacking persussive legal authority with which o question the CVA’s onsttutionality, defendant's motion als back anto doctrinal anachronism and nspposit authority on la revival at common law. Accordingly, as another court in our Circuit has put it, “while [hs] argument regarding unconstitutionality is creative, itis ... without merit" 7%. Defendant Is Not Entitled to a More Definite Statement. He ill Get the Detail He Secks During Discovery. Defendant's altemative motion for a more definite statement s similarly meritless. ‘As defendant correctly observes, Rule 12(¢) affords relief where the complaint “is so vague of aonbiguous that the [defendant] cannot reasonably prepare a response.” That Rule, however, entitles movants to a more define statement only where the complaint is so vague or ambiguous as "See DI. 31 a126 (lying on Zumpano . Quin, 6 N.Y-3d 6662006) to suggest hat the ‘CVA revival provision goes beyond “th scope of. legislative authority”), pds poe 021 WL 1918S " rmravee  Fe to be unintelligible.” oo Ms. Gidfire’s complaint is neither “unintelligible” for “vague” nor “ambiguous. It ~~ - alleges discrete incidents of soxual abuse in particular circumstances a thre identifiable locations. Itidentifics to whom it attributes that sexual abuse. Defendant nevertheless holds out that he cannot reasonably prepare response because plaintiff has not described “what purported sexual contact occurred... when and ‘where the incident occured, or the forcible compulsion she was der due to express or implied threat” to the degree of specificity that he would like.” Whill he understandably sceks more detail about the precise details of plant's clims, he will be able to obiain that deal during prt discovery.” Moreover, defendant’ asseton hat he cannot reasonably prepare & response 10 plantf’s allegations plainly contradict the content of his moving papers, in which he denies Ms. Giuftre's allegations in no uncertain terms.” Conclusion For the foregoing reasons, defendant's motion to dismiss the complaint or for a more definite statement is denied in al respects. Given the Court’ limited task of rling on this motion, "See Kokv. First Unum Lf Ins, Co. 154. Supp 28 777, 781-82 (SDNY, 2000): Kelly WLI. Cool, 145 ERD. 32.35 (SDNY. 1992), aff'd, 23 F.3d 398 Cd Cir. 1999). "pasta 7 See ei. Casella. fugh O'Kane Elec, Co, No.00 Civ. 2481 (LAK), 2000 WL 1530021, at*1 n2 (SDN.Y. Oct. 17,2000). Dke31 atl Prince Andro never sexual abused asculed ie. Ho nail denies Giuffe's false accusations against him.).  “ nothing in this opinion or previously in these proceedings properly may be construed as indicating “aview with respect fo the truth of the charges or couniercharges or a 10 the intention of the parties. - in entering into the 2009 Agreement. SO ORDERED. Dated: Januaryl 1, 2022 Lewis, f a. | United States District Judge