CM/ECF - Live natabase - flsd

CM/ECF - Live natabase - flsd Page 1 of 6 U.S. District Court Southern District of Florida (West Palm Beach) CIVIL DOCKET FOR CASE #: 9:08-cv-80804-KAM Doe v. Epstein et al Assigned to: Judge Kenneth A. Marra Referred to: Magistrate Judge Linnea R. Johnson ' Case in other court: 15th Judicial Circuit, 50 2008 CA 006596 Cause: 28:1331 Federal Question CLOSED, L1RJ Date Filed: 07/18/2008 • Date Terminated: 10/03/2008 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question Plaintiff Jane Doe represented by Spencer Todd Kuvin Ricci Leopold 2925 PGA Boulevard Suite 200 Palm Beach Gardens , FL 33410 Defendant Jeffrey Epstein Fax: 515-2610 Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Theodore Jon Leopold Leopold—Kuvin, P.A. 2925 PGA Boulevard Suite 200 Palm Beach Gardens , FL 33410 Fax: Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Guy Alan Lewis Lewis Tein 3059 Grand Avenue Suite 340 Coconut Grove , FL 33133 Fax: 442-6744 https://ccf.flscLuscourts.gov/egi-bin/DktItpt.pl?688131043345764-1.,_801 0-1 10/8/2008 EFTA00175521 CM/ECF - Live Pntabase - flsd Page 2 of 6 Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Jack Alan Goldberger Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach , FL 33401-5012 Fax: 835-8691 Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael James Pike Burman Critton Luttier & Coleman 515 N Flagler Drive Suite 400 West Palm Beach , FL 33401-2918 Fax: 515 14 - Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Ross Tein Lewis Tein 3059 Grand Avenue Suite 340 Cocos Grove , FL 33133 Fax: 442- 4 Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Robert Deweese Critton , Jr. Burman Critton Luttier & Coleman 515 N Flagler Drive Suite 400 West Palm Beach , FL 33401-2918 Fax: Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant represented by Douglas Malcolm McIntosh https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?688131043345764-L801_0-1 10/8/2008 EFTA00175522 CM/ECF - Live InIabase - flsd Page 3 of 6 Defendant McIntosh Sawran Peltz Cartaya & Petruccelli 1776 E Sunrise Boulevard PO Box 7990 Fort Lauderdale , FL 33338-7990 Fax: 765-1005 Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Guy Alan Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason A. McGrath McIntosh Sawran Peltz & Cartaya 1601 Forum Place Suite 1110 West Palm Beach , FL 33401 Fax: Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Ross Tein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Guy Alan Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Ross Tein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Date Filed # that Docket Text 07/18/2008 1 r 9.4 MB NOTICE OF REMOVAL Filing&135S.00 Receipt#: 724495, filed by Jeffrey Epstein, = . (Attachments: # 1 exhibits, # 2 cxhibits)(jgn) (Entered: 07/21/2008) https://ecfflsd.uscourts.gov/cgi-bin/DktRpt.p117688131043345764-L_801_0-1 10/8/2008 EFTA00175523 CM/ECF - Live nittabase - flsd Page 4 of 6 07/25/2008 2 r I9,6 KB MOTION for Hearing Defendants Je e E stein and Request for Oral Argument by Jeffrey Epstein. (Tein, Michael) (Entered: 07/25/2008) 07/25/2008 3 r 71.1 KB MOTION for Extension of Time to File Answer Defendants Jeffrey Epstein and Motion for f Time to Answer or Otherwise Respon to Complaint by Jeffrey Epstein. (Tein, Michael) (Entered: 07/25/2008) 07/25/2008 4 Sealed Document. (igo) UNSEALED see DE U Modified on 9/3/2008 (ral). (Entered: 07/25/2008) 07/25/2008 5 Sealed Document. (igo) UNSEALED see DE 11£ Modified on 9/3/2008 (ral). (Entered: 07/25/2008) 07/25/2008 17 r 120.4 KB UNSEALED MOTION to File Under Seal by Jeffrey Epstein. (ral) (Entered: 09/03/2008) 07/25/2008 18 r 17 MB UNSEALED MOTION to Stay by , Jeffrey Epstein. (ral) (Entered: 09/03/2008) 08/06/2008 6 r KB ORDER DENYING MOTION TO SEAL. The Clerk shall unseal DE 4 Sealed Document, 5 Sealed Document and make them available for public inspection through CM/ECF. Signed by Judge Kenneth A. Marra on 8/5/08. (ir) (Entered: 08/06/2008) 08/06/2008 7 r 77.3 KB ORDER DENYING MOTION TO STAY and denying as moot 2 Motion for Hearing. Signed by Judge Kenneth A. Marra on 8/5/08. (ir) (Entered: 08/06/2008) 08/08/20(8 a r ns KB MOTION Defendant Jeffiwy Epstein's Opposed Motion to Align Response Date by Jeffrey Epstein. (Attachments: # 1 Text of Proposed OrderXTein, Michael) (Entered: 08/08/2008) 08/13/2008 9 r 274 KB Unopposed MOTION for Extension of Time to File CIVIL RICO CASE STATEMENT by Jane Doe. (Kuvin, Spencer) (Entered: 08/13/2008) 08/14/2008 I 0 ENDORSED ORDER granting 9 Motion for Extension of Time to File Civil Rico Case Statement. Signed by Judge Kenneth A. Marra on 8/14/08. (ir) (Entered: 08/14/2008) 08/18/2008 I I r 1.9 MB MOTION to Remand by Jane Doe. (Attachments: II 1 Exhibit Defendant Epstein Sentence)(Kuvin, Spencer) (Entered: 08/18/2008) 08/21/2008 12 F 0,9 MB Plaintiffs MOTION to Preserve Evidence by Jane Doe. (Attachments: II I Exhibit 1)(Kuvin, Spencer) (Entered: 08/21/2008) 08 21 -'008 13 r KB ORDER requiring response to 12 Plaintiffs MOTION to Preserve Evidence and Expedite Discovery. Response due by 5:00 p.m. 8/26/08. Signed by Judge Kenneth A. Marra on 8/21/08. (ir) (Entered: 08/21/2008) 08/21/2008 Reset Deadlines as to 12 Plaintiffs MOTION to Preserve Evidence. https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.p17688131043345764-L_801_0-1 10/8/2008 EFTA00175524 CM/ECF - Livc "itabase - flsd Page 5 of 6 Responses due by 8/26/2008 (ir) (Entered: 08/21/2008) 08/22/2008 14 F 14'6 KB RESPONSE to Motion re 12 Plaintiffs MOTION to Preserve Evidence Epstein's Response to Motion to Preserve Evidence [DE 121 filed by Jeffrey Epstein. Replies due by 9/2/2008. (Tein, Michael) (Entered: 08/22/2008) 08/29/2008 15 r 54.0 KB ORDER granting a Motion Align Response Date. Response due 9/4/08. Signed by Judge Kenneth A. Marra on 8/28/08. (ir) (Entered: 08/29/2008) 08/29/2008 Reset Answer Due Deadline: Jeffrey Epstein response due 9/4/2008. (ir) (Entered: 08/29/2008) 08/29/2008 r II: KB NOTICE by Notice of Lack of Compliance with Local Rule 7.1.8.3 and Notice of Incorrect Assertion of Certificate of Compliance with Local Rule 7.1.8.3, Inaccurate Characterization of Plaintiffs Motion for Enlargement of Time to File Civil Rico Case Statement Pursuant to Local Rule 12.1 as Unopposed, and Improper Submission of Proposed Order Regarding Plaintiff's Unopposed Motion for Enlargement to File Civil Rico Case Statement Pursuant to Local Rule 12.1 (Attachments: # 1 Exhibit Unopposed Motion for Enlargement of Time to File Civil Rico Case Statement Pursuant to Local Rule 12.1, and Proposed Order)(Mclntosh, Douglas) (Entered: 08/29/2008) 09/04/2008 12 r 46$.2 KB Defendant's MOTION to Dismiss 1 Notice of Removal Amended Complaint by Jeffrey Epstein. Responses due by 9/22/2008 (Tein, Michael) (Entered: 09/04/2008) 09/05/2008 20 r ss.2 KB ORDER granting 12 Motion to'Preserve Evidence. Signed by Judge Kenneth A. Marra on 9/4/08. (ir) (Entered: 09/05/2008) 09/05/2008 21 r 0.7 MB RESPONSE in Opposition re 11 MOTION to Remand filed by Jeffrey Epstein. (Tein, Michael) (Entered: 09/05/2008) 09/15/2008 22 r 3" KB REPLY to Response to Motion re 11 MOTION to Remand filed by Jane Doe. (Kuvin, Spencer) (Entered: 09/15/2008) 09/16/2008 21 r 893 KB NOTICE of Substitution of Counsel by Theodore Jon Leopold on behalf ofJane Doe (Leopold, Theodore) (Entered: 09/16/2008) 09/18/2008 24 r 3itil, Unopposed MOTION for Extension of Time to File Response as to 19 Defendant's MOTION to Dismiss 1 Notice of Removal Amended Complaint by Jane Doe. (Attachments: # 1 Text of Proposed Order) (Kuvin, Spencer) (Entered: 09/18/2008) 09/19/2008 25 ENDORSED ORDER granting 24 Motion for Extension of Time to Respond to Motion to Dismiss. Plaintiffs response due 15 days after Court rules on Motion to Remand. Signed by Judge Kenneth A. Marra on 9/19/08. (ir) (Entered: 09/19/2008) 10/03/2008 nr, r OPINION AND ORDER granting11 Motion to Remand. All pending https://ectflsd.uscourts.gov/egi-bin/DktRpt.pl?688131043345764-L_801_0-1 10/8/2008 EFTA00175525 CM/ECP - Live "itabase - flsd Page 6 of 6 ( 93.9 KB motions are denied, without prejudice, as moot. This case is CLOsI I) Signed by Judge Kenneth A. Marra on 10/3/08. (ir) Modified on 10/3/2008 (ir). (Entered: 10/03/2008) 10/06/2008 27 r Transmittal Letter Sent With certified copy of Order of Remand To: 15th 37.2 Judicial Circuit in and for Palm Beach County, Florida (bb) (Entered: KB 10/06/2008) View Selected I or Download Selected Total filesize of selected documents (MB): I Maximum filesize allowed (MB): 10 PACER Service Center Transaction Receipt 10/08/2008 17:14:40 PACER Login: du4480 Client Code: Description: Docket Report Search Criteria: 08-cv- 80804- KAm Billable Pages: 4 Cost: 0.32 https://ecfflsd.uscourts.gov/cgi-bin/DktRpt.pl?688131043345764-L_801_0-1 10/8/2008 EFTA00175526 Case 9:08-cv-81,O04-KAM Document _ Entered FLSD Docket 10/03/.. J8 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA NO. 08-80804-OV-MARRA/JOHNSON JANE DOE, a/k/a JANE DOE NO. 1, Plaintiff, 1. JEFFREY EPSTEIN, , and Defendants. OPINION AND ORDER REMANDING CASE TO STATE COURT THIS CAUSE is before the Court on Plaintiff's Motion to Remand (DE 11), filed August 18, 2008. Defendants filed a response (DE 21), and Plaintiff subsequently replied (DE 22). The motion is now fully briefed and is ripe for review. The Court has carefully reviewed all of the briefs and the entire record and is otherwise advised in the premises. Background Plaintiff Jane Doe, a/k/a Jane Doe No. 1, filed a four-count complaint in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, on June 25, 2008, bringing actions for sexual assault against Defendant Jeffrey Epstein ("Epstein"), and civil conspiracy, intentional infliction of emotional distress, and civil remedy for violation of Florida Statute Section 772.103 against all three Defendants (DE 1). The facts, as alleged in the Complaint, are as follows: At all relevant times, Epstein was an adult male. (Am. Compl. ¶ 8). 1 EFTA00175527 Case 9:08-cv-&O04-KAM Document Entereo FLSD Docket 10/03/. J8 Page 2 of 8 Epstein engaged in a plan, scheme and/or enterprise in which he gained access to primarily economically disadvantaged minor girls in his home, sexually assaulted these girls or coerced or attempted to coerce them to engage in prostitution, and then gave them money. (Am. Compl. 1 9). In or about 2005, Plaintiff, then 14 years old, became a victim of this scheme. (Am. Compl. ¶ 9). Defendant ("=") and ('a') recruited girls ostensibly to give a wealthy man a massage for monetary compensation in his Palm Beach mansion. (Am. Compl. 111). Under the plan, was contacted shortly before or soon after Epstein was at his Palm Beach residence. Epstein, or someone on their behalf, directed to bring one or more underage girls to the residence. (Am. Complill 1). generally sought out economically disadvantaged underage girls from Loxahatchce and surrounding areas. (Am. Compl. ¶ 11). Upon arrival at Epstein's mansion, would introduce each victim to who gathered the girl's personal information. (Am. Compl. ¶ 12). Defendant would then bring the girl up a flight of stairs to a bedroom that contained a massage table. (Am. Compl. ¶ 12). would then leave the girl alone in the room, whereupon Epstein would enter wearing only a towel. (Am. Compl. ¶ 12). Epstein would then remove his towel, lay down naked on the massage table, and direct the girl to remove her clothes. (Am. Compl. ¶ 12). Epstein would then perform one or more lewd, lascivious and sexual acts, (Am. Compl. ¶ 12). Consistent with the foregoing plan, recruited Plaintiff to give Epstein a massage for monetary compensation. (Am. Compl. ¶ 13). brought Plaintiff to Epstein's mansion 2 EFTA00175528 Case 9:08-ov-80004-KAM Document Entered . FLSD Docket 10/03/2„8 Page 3 of 8 in Palm Beach. (Am. Compl. ¶ 13). Plaintiff was introduced to a, who led her up the stairs to the room with the massage table. (Am. Compl. ¶ 13). 'et up the massage table, laid out the massage oils, told Plaintiff that Epstein would be in shortly, and then left the room. (Am. Compl. ¶ 13). Plaintiff was alone in the room when Epstein arrived. (Am. Compl. ¶ 13). Epstein told her to remove her clothes and left the room. (Am. Compl. 13). Epstein returned wearing only a towel. (Am. Compl. ¶ 13). Epstein removed his towel and laid down on his stomach on the massage table. (Am. Compl. ¶ 13). Epstein again told Plaintiff to remove her clothes. (Am. Compl. ¶ 13). In shock, fear and trepidation, Plaintiff complied, removing her clothes except for her panties and bra. (Am. Compl. ¶ 13). Shortly after starting to rub Epstein's back, Epstein told Plaintiff to sit on his back. (Am. Compl. ¶ 13). Plaintiff, out of fear and trepidation, complied. (Am. Compl. ¶ 13). After a period of time, Epstein got up from the table and went behind the door. (Am. Compl. ¶ 13). For several minutes Plaintiff heard loud noises and moans and believes that Epstein was (Am. Compl. ¶ 13). Thereafter, Epstein, naked, returned to the massage table and laid face up on the table. (Am. Compl. ¶ 13). Epstein then told Plaintiff to continue with the massage and told her to sit on top of him. (Am. Compl. ¶ 13). Out of fear and trepidation she complied. (Am. Compl. ¶ 13). As Plaintiff rubbed Epstein's chest, Epstein began to time, Epstein was (Am. Compl. ¶ 13). Thereafter Epstein began to (Am. Compl. ¶ 13). At this same . (Am. Compl. ¶ 13). Epstein got up from the massage table, told Plaintiff to write down her name and phone number, and then left the room.(Am. Compl. ¶ 13). Plaintiff was then able to get dressed, leave the room and go back downstairs and into the 3 EFTA00175529 Case 9:08-cv-8uo04-KAM Document ....., Entered FLSD Docket 10/03..-J8 Page 4 of 8 kitchen. (Am. Compl. 1 14). Epstein, and were waiting for Plaintiff. (Am. Compl. ¶ 14). Epstein paid Plaintiff $300. (Am. Compl. ¶ 14). Epstein paid $200 for bringing Plaintiff to him. (Am. Compl. ¶ 14). took Plaintiff home. (Am. Compl. ¶ 14). As a result of this encounter, the 14-year-old Plaintiff experienced confusion, shame, humiliation, and embarrassment, and the assault sent her life into a downward spiral. (Am. Compl, ¶ 15). Defendants filed a Notice of Removal with this Court on July 18, 2008. (DE 1). Defendants assert that this Court has jurisdiction pursuant to 28 U.S.C. § 1332: the amount in controversy exceeds $75,000; Defendant Epstein is a citizen of the U.S. Virgin Islands; and Defendant is a citizen of New York. (Notice of Removal ¶ 2.) As Plaintiff is a citizen of Florida, complete diversity exists and this Court's jurisdiction is alleged to be proper. As for Defendants claim that was fraudulently joined to defeat diversity jurisdiction. (Notice of Removal. ¶ 3). Plaintiffs have moved to remand the action, claiming that was not fraudulently joined to the action. As such, Plaintiff asserts that complete diversity does not exist, and this Court does not have jurisdiction over this case. Standard of Review A defendant may remove any civil action brought in a state court over which a federal court would also have original jurisdiction. 28 U.S.C. § 1441(a). However, the burden of establishing federal jurisdiction under § 1441 rests with the party seeking removal. Carson'. Dunham. 121 U.S. 421, 425 (1887); Diaz, Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). The right of removal is strictly construed, as it is considered a federal infringement on a state's power to adjudicate disputes in its own courts. See Shamrock Oil & Gas Corp.,. Sheets, 313 U.S. 100, 4 EFTA00175530 Case 9:08-cv-8uo04-KAM Document Entereo FLSD Docket 10/031, . J8 Page 5 of 8 108-09 (1941). Thus, when the Court's jurisdiction over a case is doubtful, doubts arc resolved in favor of remand. See Crowe . Coleman, 113 F.3d 1536, 1539 (11th Cir. 1997). Discussion Fraudulent Joinder A defendant's statutory "right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy." Wilson'. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). Thus, courts have established the doctrine of fraudulent joinder to allow the removal of a case to federal court despite the presence of a non-diverse or forum-citizen defendant. The Eleventh Circuit has provided substantial guidance for the district courts in situations where a party removes a case from state court, alleging fraudulent joinder of the non-diverse parties: In a removal case alleging fraudulent joinder, the removing party has the burden of proving that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court. The burden of the removing party is a "heavy one." To determine whether the case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff. Crowe, 113 F.3d at 1538. In this case, Defendants do not allege that Plaintiff fraudulently pled jurisdictional facts; instead, Defendants argue that Plaintiff has no cause of action against The Amended Complaint alleges three causes of action against : civil conspiracy (Count 2); intentional infliction of emotional distress (Count 3); and civil remedy for violation of 5 EFTA00175531 Case 9:08-cv-80004-KAM Document - Entered.... FLSD Docket 10/03/i _ A Page 6 of 8 Florida Statute Section 772.103 (Count 4). The Court, in considering the remand motion, must not weigh the merits of a Plaintiffs claim beyond determining whether any of the alleged causes of action is an arguable one under state law. See Crowe. 113 F.3d at 1538. "If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." Id. quoting Coker,. Amoco Oil Co., 709 F.2d 1433, 144041 (11th Cir.1983). The Florida Fifth District Court of Appeals set forth the elements of a civil conspiracy as follows: "The elements of a civil conspiracy are: (a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts performed pursuant to the conspiracy." Walters'. Blankenship, 931 So.2d 137, 140 (Fla. SDCA 2006), citing Florida Fern Growers Ass'n, Inc.'. Concerned Citizens of Putnam County, 616 So.2d 562 (Fla. 5th DCA 1993). Here, Plaintiff has alleged each of the required elements in her Amended Complaint as follows: (a) a conspiracy between the three Defendants, including (Am. Compl. ¶ 21); (b) to do an unlawful act, that is, to commit the tort of sexual assault of a minor (Am. Compl. ¶ 21); (c) committed an overt act in pursuance of the conspiracy, that is, used false pretenses to lure Plaintiff to Epstein's home so that Epstein could sexually assault Plaintiff (Am. Compl. 1 22).; and (d) severe and permanent traumatic injuries, including mental, psychological and emotional damages (Am. Compl. ¶ 23). "Additionally, an actionable conspiracy requires an actionable underlying tort or wrong." Raimi I. Furlong, 702 So.2d 1273, 1284 (3d DCA 1997); see, e.g., Walters 931 So.2d at 141. 6 EFTA00175532 Case 9:08-cv-8Uo04-KAM Document Entered FLSD Docket 10/03/,_J8 Page 7 of 8 The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff .... (citations omitted) Thus, a cause of action for civil conspiracy exists ... only if "the basis for the conspiracy is an independent wrong or tort which would constitute a cause of action if the wrong were done by one person." Rivers'. Dillards Dept. Store, Inc., 698 So.2d 1328 (Fla. I DCA 1997), quoting Blatt . Green Rose, Kahn & Piotrkowski, 456 So.2d 949 (Fla. 3d DCA 1984). The alleged underlying wrong or tort in this case is sexual assault of a 14-year-old minor. Sexual assault is considered tortious conduct under Florida law. Malicki Doe 814 So.2d 347, 358 (Fla. 2002); see also Doe'. Celebrity Cruises, Inc., 394 F.3d 891, 917 (11th Cir. 2004) ("Florida law equates sexual battery with an intentional tort."). At the very least, Plaintiff's Complaint states a cause of action for the underlying tort of battery, as a 14-year-old child cannot consent to the alleged vaginal penetration by Epstein. Fla. Stat. § 800.04. Based on the foregoing, the Court cannot say with certainty that "no possibility" exists that Plaintiff can establish a cause of action against the resident in state court. See Crowe, 113 F.3d at 1538. As such, the Court concludes that Defendants have not met their "heavy" burden of demonstrating that joinder of the claims against justifying denial of the motion to remand. a Conclusion was fraudulent, Accordingly, it is hereby ORDERED AND ADJUDGED as follows: 1. Plaintiff's Motion to Remand [DE 11] is GRANTED. 2. This case shall be REMANDED to the Circuit Court for the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, case No. 50 2008 CA 006596, for lack of subject matter 7 EFTA00175533 Case 9:08-cv-81,,m14-KAM Document Entered , . FLSD Docket 10/03P,.. -8 Page 8 of 8 jurisdiction; 3. The Clerk of this Court is hereby directed to forward a certified copy of this Order to the Clerk of the Circuit Court for the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, case No. 50 2008 CA 006596; 4. All pending motions are hereby DENIED, without prejudice, as moot; and 5. This case is closed. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 3' day of October, 2008. KENNETH A. MARRA United States District Judge Copies furnished to: All counsel of record 8 EFTA00175534 Case 9:08-cv-8Uo04-KAM Document ....... Entered FLSD Docket 09/15/,.„J8 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80804-CIV-MARRAMOHNSON JANE DOE, a/k/a, JANE DOE NO. 1, Plaintiff, vs. IF'.F .EY EPSTEIN , and Defendants. PLAINTIFF'S REPLY TO OPPOSITION TO REMAND Plaintiff Jane Doe, a Florida citizen, properly sued citizen, in this action. Contrary to Defendants' contention, Defendant also a Florida was not fraudulently joined because, when viewing the factual allegations in the light most favorable to Plaintiff and resolving issues of Florida substantive law in favor of Plaintiff, it is clear that Plaintiff has cognizable causes of action against Defendant for civil conspiracy, intentional infliction of emotional distress, and civil RICO. Accordingly, the Court should remand this action to Florida state court. A. Plaintiff is a Florida citizen Plaintiff alleged in her complaint and testified in deposition that she is a Florida resident. (Amended Complaint I I, DE I, pp. 301; Deposition of Jane Doe, DE I, pp. 31-32, 5:14-18, 6:6-10). In their notice of removal, Defendants cite a newspaper article (from the same newspaper that Defendants chide Plaintiff for citing with regard to Defendant describing herself as the Hollywood madam Heidi Fleiss) in which it EFTA00175535 Case 9:08-cv-8ua04-KAM Document -4 Entered FLSD Docket 09/15h.,,J8 Page 2 of 8 is reported that Plaintiff had moved to another state in order to intimate that Plaintiff made fraudulent allegations regarding her residency. (DE I, p. 7 n.6). Defendants then chide Plaintiff in their opposition to her motion for remand for not taking the bait and responding to this baseless allegation. (DE 21, p. I). The only evidence in this case, as well as Plaintiff's allegations, demonstrate that Plaintiff is a Florida citizen. As Defendants have failed to present sufficient evidence to demonstrate otherwise, there is no need for Plaintiff to present additional evidence establishing her status as a Florida citizen. B. Plaintiff has alleged cognizable causes of action against Defendant The allegations in Plaintiff's complaint demonstrate that Plaintiff was the victim in a despicable scheme orchestrated by Defendant Epstein to find and obtain underage girls, lure them to his home, and subject them to sexual abuse or otherwise induce them to engage in lewd behavior. As much as Defendants attempt to downplay the role of Defendant by describing her as nothing but a college student with no assets, Plaintiff's complaint demonstrates that was a key player in Epstein's scheme. Defendant was the person that actually trolled for underage girls and induced them with promises of money in exchange for massages in order to deliver the girls to Epstein's home and get them into his bedroom. (Amended Complaint ¶¶ 11-15, DE 1, pp. 302-04). Without Defendant role in this scheme, the underage girls, including Plaintiff, would not have been subjected to Defendant Epstein's depravity and abuse. 2 EFTA00175536 Case 9:08-cv-80O04-KAM Document _ Entered , . FLSD Docket 09/15/2. ..8 Page 3 of 8 1. Civil Conspiracy Defendants repeatedly assert that Plaintiff cannot have a cause of action for civil conspiracy grounded on the tort of sexual assault because Chapter 800 of the Florida Statutes does not create a private cause of action. As authority for this legal proposition, Defendants cite Florida case law that states "not every statutory violation carries a civil remedy." (DE 21, p. 6) (citing Am. Home Assurance Co.'. Plaza Materials Corp., 908 So. 2d 360, 374 (Fla. 2005)). Defendants do not cite case law that states, however, that Chapter 800 of the Florida Statutes does not create a private cause of action, nor can they because this appears to be a matter of first impression in Florida. In order to determine whcthcr a private cause of action may be based upon a statutory breach, Florida courts look to the intent of the legislature. Baumsteinl. Sunrise Community, Inc., 738 So. 2d 420, 421 (Fla. 3d DCA 1999). Because Florida courts have not examined whether the legislature intended for violations of Chapter 800 to provide for private causes of action, the Court should view this uncertainty regarding Florida state law in favor of Plaintiff. See Crowe'. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1989) (citation omitted). Furthermore, the failure of a statute to provide a private cause of action does not "preclude the right to bring a common law . . . claim based upon the same allegations." Villazon I. Prudential health Care Plan, Inc., 843 So. 2d 842, 852 (Fla. 2003). In her action for sexual assault, Plaintiff alleges that Defendant Epstein tortiously assaulted her sexually. (DE I, p. 104). Under Florida law, sexual assault is an intentional tort. See Doe" Celebrity Cruises, Inc., 394 F.3d 891, 917 (11th Cir. 2004) ("Florida law equates sexual battery with an intentional tort."). Thus, even if Plaintiffs civil conspiracy claim 3 EFTA00175537 Case 9:08-cv-8uO04-KAM Document _ Entereo FLSD Docket 09/15/.. J8 Page 4 of 8 cannot properly be grounded upon a violation of Chapter 800, it is properly grounded upon common law tortious assault. Plaintiff's cause of action for civil conspiracy is, therefore, cognizable against Defendant under Florida law. 2. Intentional Infliction of Emotional Distress Defendants next assert that Plaintiff has failed to assert a cognizable cause of action for intentional infliction of emotional distress against Defendant because her allegations arc not so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency. (DE 21, p. 7). They attempt to characterize Plaintiff as the wrongdoer because she agreed to give a massage in exchange for monetary compensation when she was "unlicensed, untrained, and unqualified to perform this professional service." (DE 21, p. 8). Defendants seem to forget that Plaintiff was just a I4-year old girl when she was approached by Defendant and induced to agree to provide a massage to a wealthy man in exchange for money. What Plaintiff certainly did not agree to do was to be subjected to Defendant Epstein's perverse scheme to satisfy his depraved sexual desires. When read fairly, Plaintiff's complaint tells the tale of a girl, barely a teenager, who was lied to and manipulated by the college-aged Defendant who, for compensation, tempted Plaintiff with the promise of money in exchange for easy and harmless work and then knowingly delivered Plaintiff into the depraved hands of Defendant Epstein. Defendant Epstein then subjected this young girl to the despicable lewd and lascivious acts detailed in Plaintiff's complaint. It is hard to imagine any conduct that is more "outrageous in character and so extreme in degree as to go beyond all possible bounds of 4 EFTA00175538 Case 9:08-cv-80004-KAM Document _ Entered L . FLSD Docket 09/15/L Page 5 of 8 decency." Plaintiff's cause of action for intentional infliction of emotional distress must, therefore, be recognized as cognizable under Florida law. 3. Civil RICO Finally, Defendants argue that Plaintiff has failed to assert a cognizable cause of action for civil RICO against Defendant because Plaintiff was injured only by the sexual assault, which is not a predicate act under Florida's RICO statute. In her complaint, Plaintiff alleges that Defendants engaged in a pattern of criminal activity in which Defendant found and delivered underage girls to Defendant Epstein in order for Epstein to "solicit, induce, coerce, entice, compel or force such girls to engage in acts of prostitution and/or lewdness." (Amended Complaint ¶ 32, DE 1, p. 307). She also alleges that she was a victim of Defendants' scheme because she was one of the underage girls found and delivered to Defendant Epstein by Defendant and that she endured Epstein's actions as he tried to get her to engage in, and forced upon her, acts of prostitution and lewdness. (Amended Complaint ¶ 33, DE 1, pp. 307-308). It is for harm suffered as a result of these predicate acts that Plaintiff seeks damages for in Count IV of her complaint. Cf. Palmas Y Bambu, E.I. Dupont De Nemours & Co., Inc., 881 So. 2d 565, 570 (Fla. 3d DCA 2004) (holding plaintiff has standing to sue for civil RICO when her injuries flow directly from commission of the predicate acts, which means "when the alleged predicate act is mail or wire fraud, the plaintiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme"). Because Plaintiff was a target of Defendants' scheme and was harmed by their actions in carrying out the scheme, Plaintiff has a cognizable cause of action for civil RICO against Defendant 5 EFTA00175539 Case 9:08-cv-8uo04-KAM Document _ _ Entereo FLSD Docket 09/15/....J8 Page 6 of 8 C. Conclusion Plaintiff, a Florida citizen, has alleged cognizable causes of action against Defendant also a Florida citizen, for civil conspiracy, intentional infliction of emotional distress, and civil RICO. When viewing Plaintiff's factual allegations in the light most favorable to her and resolving issues of Florida substantive law in her favor, it is clear that Plaintiff has not fraudulently joined Defendant in this action. Accordingly, the Court should remand this action to Florida state court for lack of jurisdiction. Certificate of Services I hereby certify that on September 15, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who arc not authorized to receive electronically Notices of Electronic Filing. sl Spencer T. Kuvin Spencer T. Kuvin (Florida Bar Number 089737) Attorney E-Mail Address: RICCI—LEOPOLD, P.A. 2925 PGA Blvd. Suite 200 Palm Beach Gardens, FL 33410 Telephone: Facsimile: Counsel for Plaintiff Jane Doe 6 EFTA00175540 Case 9:08-cv-8uo04-KAM Document Entered ..i FLSD Docket 09115L . J8 Page 7 of 8 SERVICE LIST Doe Epstein, et. al. CASE NO: 08-80804-Civ-MARIUUJOHNSON United States District Court, Southern District of Florida Robert Critton, Esq. Burman, Critton, Luttier & Coleman, LLP 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 Phone: Fax: Counsel for Jeffley Epstein Served via U.S. Mail, postage prepaid Guy Alan Lewis Es . Email: Lewis Tein 3059 Grand Avenue, Suite 340 Coconut Grove, FL 33133 Phone: Fax: Counsel for Jeffrey Epstein Served via CM/ECF Bruce E. Reinhart, Esq. Bruce E. Reinhart, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 Phone: Fax: Counsel fo Served via U.S. Mail, postage prepaid Michael R. Tein Es . Email: Lewis Tein 3059 Grand Avenue, Suite 340 Coconut Grove, FL 33133 Phone: Fax: Counsel for Jeffrey Epstein Served via CM/ECF 7 EFTA00175541 Case 9:08-cv-80ou4-KAM Document Entered 'I.— FLSD Docket 09/15/2 d Page 8 of 8 Douglas M. McIntosh, Esq. Jason A. McGrath, Esq. McIntosh, Sawran, Peltz & Cartaya, P.A. Centurion Tower, Suite 1110 1601 Forum Place West Palm Beach, FL 33401 Phone: Fax: Counsel for Served via U.S. Mail, postage prepaid 8 EFTA00175542 Case 9:08-cv-8t.44-KAM Document Entered'... FLSD Docket 09105/L Page 1 of 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80804-C1V-MARRA/JOHNSON JANE DOE, a/k/a JANE DOE NO. 1, vs. JEFFREY EPSTEIN, , and OPPOSITION TO REMAND MOTION Because this case was properly removed under 28 U.S.C. § 1441(a), remand is unwarranted. In response to plaintiff's motion under § 1447(c) for remand and attorneys' fees, defendants Jeffrey Epstein andrespectfully state as follows: Introduction The plaintiff suggests she is insulated from any fraudulent-joinder challenge so long as she has "at least a possibility" of "recover[ing] against Defendant under Florida law for each of the counts in the amended complaint." (DE 11 at 5.) However superficially appealing from a plaintiff's perspective, this argument ignores the corollary that "[t]he potential for legal liability [under State law] `must be reasonable, not merely theoretical!" Legg l. Wyeth, 428 F.3d 1317, 1325 n.5 (11th Cir. 2005) (quoting Great Plains Trust Co.l. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)) (emphasis added). See also id. at 1325 (observing that "[t]he removal process was created by Congress to protect defendants," adding that "Congress `did not extend such protection with one hand, and with the other give plaintiffs a EFTA00175543 Case 9:08-ov-80°04-KAM Document -. Entered FLSD Docket 09/05ft-A Page 2 of 14 CASE NO.: 08-80804-CiV-MARRA/JOHNSON bag of tricks to overcome it.' (quoting McKinney'. Bd. of Trustees of Maryland Cmty. Colt, 955 F.2d 924, 928 (4th Cir. 1992))). Essentially, the remand motion merely re-states the complaint's allegations against . This is not enough to rebut fraudulent joinder. Cf. Ghiglionel Discover Prop. & Cas. Co., No. C-06-1276 SC, 2006 WL 1095855, at *2 (N.D. Cal. Apr. 25, 2006) (denying motion to remand where plaintiffs, instead of properly analyzing their alleged cause of action, resorted to "quoting from Witkin's California Procedure a passage that merely repeated the essence of [the governing jurisdictional statute)") (emphasis added). Even in the light most favorable to the plaintiff, the allegations are insufficient to establish a cause of action under Florida law against . As a result, after discounting this fraudulently joined defendant, there is complete diversity of citizenship, hence, original jurisdiction in this Court. Discussion A. Diversity of Citizenship Based on a published newspaper report, our removal petition suggested that Jane Doe, despite her allegations of being a citizen of Florida (DE 1 at 62), might actually be a (diverse) citizen of Georgia (DE 1 at 7-8 n.6). If so, the case would be removable, regardless of any claims against defendant The plaintiff ignored this point. Instead, the plaintiff claimed that "there is a question of whether Defendant Epstein is actually a citizen of Florida because he is now incarcerated in a Florida jail." (DE 11 at 2 n.2.) This statement, besides being nonresponsive,' is devoid of merit under binding Eleventh Circuit law, which the plaintiff did not Plaintiff seized upon this non sequitur as an opportunity to attach the "Epstein Sentence" (DE 11 at 2 n.2), an unmarked composite exhibit comprising, among other things, the terms, 2 EFTA00175544 Case 9:08-cv-80ou4-KAM Document "L . Entered L. FLED Docket 09/05/i...d Page 3 of 14 CASE NO.: 08-80804-CrV-MARRA/JOHNSON cite. See Mitchell'. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1314 (11th Cir. 2002) (noting as an undisputed point that someone retains their pre-incarceration domicile for purposes of citizenship under 28 U.S.C. § 1332(a)) (citations omitted); see also Polakoff HendersOn, 370 P. Supp. 690, 693 (ND. Ga. 1973), off d, 488 F.2d 977, 978 (5th Cir. 1974) ("A prisoner does not acquire a new domicile in the place of his imprisonment, but retains the domicile he had prior to incarceration.") (citation omitted) (emphasis added), cited with approval in Mitchell, 294 F.3d at 1314. conditions, and sensitive protocols concerning the fact of Epstein's previously disclosed incarceration. See DE 24 in Jane Doe No. 2 I. Epstein, Case No. 9:08-CV-80119-KAM (S.D. Fla. filed Feb. 6, 2Q08) (disclosing fact of Epstein's criminal sentence and incarceration); DE 19 in Jane Doe No. 31 E tein, No. 08-CV-80232-KAM (S.D. Fla. filed Mar. 5, 2008) (same); DE 30 in Jane Doe No. 4 I. Epsjein, No. 08-CV-80380-ICAM (S.D. Fla. filed Apr. 14, 2008) (same); DE 28 in Jane Doe No. 5 I. Epstein, No. 08-80381-CV-KAM (S.D. Fla. filed Apr. 14, 2008) (same). Being entirely irrelevant to this proceeding, the above exhibit serves only to complement the improper extrajudicial Internet postings by plaintiff's counsel. Compare Ricci—Leopold Home Page, http:// www.riccilaw.com (click on "Breaking News," then access the hyperlink entitled, 03/13/08 — Consumer Justice Attorney Ted Leopold Files Case to aid Jane Doe in seeking justice against sexual predator Jeffrey Epstein and his associates) (characterizing Epstein as a "sexual predator," then using terms like "'West"' and "'lurid" to describe Epstein's alleged conduct (quoting "Ted Leopold, managing partner of the•Palm Beach Gardens law finn of Ricci—Leopold")) (emphasis added) (web site last visited Sept. 3, 2008), with S.D. Fla. Local Rule 77.2(7) (providing that "[a] lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, which a reasonable person would expect to be disseminated by means of public communication if there is a reasonable likelihood that such dissemination will interfere with a fair trial and which relates (a) [e]vidence regarding the occurrence or transaction involved[;) (b) [t]he character ... of a party . . . 4; or] (d) [t]he lawyer's opinion as to the merits of the claims ....") (emphasis added). • 3 EFTA00175545 Case 9:08-cv-80a04-KAM Document .. Entered FLSD Docket 09/05/2, sd Page 4 of 14 CASE NO.: 08-80804-CIV-NIARRA/JOHNSON B. Fraudulent Joinder Even if the plaintiff is a citizen of Florida (after all), there is still complete diversity given that "[a] non-diverse defendant who is fraudulently joined does not defeat diversity." Shenkarl. Money Warehouse, Inc., No. 07-20634-CIV, 2007 WL 3023531, at *1 (S.D. Fla. Oct. 15, 2007) (Moreno, J.) (citing Riley'. Merrill Lynch, Pierce, Fenner & Smith, Inc., 292 F.3d 1334, 1337 (11th Cir. 2002)); accord, e.g., Tedder F.M.C. Corp., 590 F.2d 115, 117 (5th Cir. 1979) (denying motion to remand where two resident defendants were joined for the fraudulent purpose of defeating federal jurisdiction).2 To say it another way, there is no cause of action here against and without there is complete diversity. This plaintiff originally filed this lawsuit in this court. See Doe' Epstein, No. 08-CV- 80069-KAM (S.D. Fla. filed Jan. 24, 2008). After she was deposed in the state criminal case,3 she dismissed this suit, switched lawyers, and re-filed her claims in state court (DE 1-2 at 62- 70), adding 62).4 After Ms. as a nondiverse defendant in an attempt to prevent removal (DE 1-2 at moved to quash service of process in state court (DE 1-2 at 92-96), the 2 In Bonner'. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en bane), the Eleventh Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981. On February 20, 2008, the plaintiff was deposed in State of Florida'. Jeffrey Epstein, 502006CF009454 (Fla. 15th Cir. Ct. filed July 19, 2006). During that deposition, she made numerous admissions that completely undermined the allegations in her complaint. Two days later, she filed a notice of voluntary dismissal without prejudice. See Doe'. Epstein, Case No. 08-CV-80069-KAM, DE 9. ' The plaintiff, appare her untenable theories of indirect tort liabilySed another new defendant, (DE 1-2 at 62.) In naming and MIE as defendants, the plaintiff tried to distinguish this case from a series of effectively identical lawsuits brought in federal court against Epstein: Jane Doe No. 2'. Epstein, Case No. 9:08- CV-80119-KAM (S.D. Fla. filed Feb. 6, 2008); Jane Doe No. 3I. Epstein, No. 08-CV-80232- KAM (S.D. Fla. filed Mar. 5, 2008); Jane Doe No. 41 Epstein, No. 08-CV-80380-KAM (S.D. 4 EFTA00175546 Case 9:08-cv-80o04-KAM Document Entered ts.. FLSD Docket 09/05/2...3 Page 5 of 14 CASE NO.: 08-80804-CIV-MARRABOHNSON plaintiff then amended her complaint to assert an additional claim against (DE 1-3 at 101-09), re-using the identical, unmodified general allegations. Instead of addressing the fact that has "no assets whatever" (DE 1 at 4) and looks every bit the sham defendant, the plaintiff maintains that a college student, was a "key player" in an alleged RICO "scheme" (DE II at 2). Resorting to unswom, inadmissible, improper double-hearsay, the plaintiff proclaims that "has described herself as Heidi Fleiss" (DE II at 1), the "notorious Hollywood madam" (DE 11 at 1 n.1) — as though sensationalism could convert Ms. into an actual defendant. This "argument" has nothing to do with the issue of removal, offers incompetent non-evidence in an attempt to prejudice the analysis, and fails to establish that the amended complaint contains a single viable cause of action against 1. The plaintiff has not asserted a cause of action against for civil conspiracy.. The plaintiff, citing to Wright Yurko, 446 So. 2d 1162, 1165 (Fla. 5th DCA 1984), concedes that "there muse [sic] be an `actionable underlying tort or wrong' for an actionable conspiracy claim." (DE II at 5.) Yet, the plaintiff still insists that Epstein's "violation of Chapter 800 of the Florida Statutes" (DE 1-3 at 105) is an adequate the basis for her civil conspiracy claim against (DE 1-3 at 105-06), "regardless of whether Defendant Epstein's violation of Chapter 800 of the Florida Statutes also creates a private right of action" (DE 11 at 6). This makes no sense. As we argued in the removal petition, it is not enough to allege that "merely . . . 'conspired to cause harm"; again, "[u]nder Florida law, '[a]n actionable conspiracy requires an Fla. filed Apr. 14, 2008); Jane Doe No. 51 Epstein, No. 08-80381-CV-ICAM (S.D. Fla. filed Apr. 14, 2008). 5 EFTA00175547 Case 9:08-cv-80w4-KAM Document ≥ Entered L. .:LSD Docket 09/05/2L J Page 6 of 14 CASE NO.: 08-80804-CIV-MARRABOHNSON actionable underlying tort or wrong."' Posner'. Essex Ins. Co., 178 F.3d 1209, 1217-18 (11th Cir. 1999) (quoting Florida Fern Growers Assn'. Concerned Citizens, 616 So. 2d 562, 565 (Fla. 5th DCA 1993)). In an effort to dodge this requirement, the plaintiff cites Doe'. Celebrity Cruises, Inc., 394 F.3d 891, 917 (11th Cir. 2004), an admiralty case that has nothing to do with Chapter 800, let alone the basic premise (left unaddressed by the plaintiff) that "not every statutory violation carries a civil remedy," Am. Home Assurance Co.' Plaza Materials Corp., 908 So. 2d 360, 374 (Fla. 2005) (citing Villazonl. Prudential Health Care Plan, Inc., 843 So. 2d 842, 852 (Fla. 2003)). In Celebrity Cruises, the Eleventh Circuit distinguished "sexual battery" from "sexual assault" under Florida law. Celebrity Cruises, 394 F.3d at 916-17. The court also cited with approval the dissenting opinion in Doe'. Evans, 814 So. 2d 370, 380 (Fla. 2002) (Wells, C.J., dissenting), where Florida Chief Justice Wells admonished against "the use of broad, indefinite, and legally nonspecific language" to establish causes of action under a rubric as expansive as "sexual misconduct."' Evans, 814 So. 2d at 379-81 (Wells, C.J., dissenting). See also id. at 379 (Wells, C.J., dissenting) (noting that 'sexual misconduct' is a phrase of inherent vagueness and has no meaning in Florida tort law," adding that "[t]orts have defined elements") (emphasis added). Accordingly, this case serves only to highlight that Florida has never relaxed its pleading requirements simply because a plaintiff describes an event as a "sexual assault." To plead a legal cause of action, the plaintiff still must allege a real, recognized tort. In trying to obfuscate the basis for her civil-conspiracy claim, the plaintiff has only confirmed that she is relying on Chapter 800, a statute that does not afford a private right of action. Because the statute she expressly pleads provides no civil remedy, the plaintiff cannot prevail on her derivative claim for civil conspiracy. 6 EFTA00175548 Case 9:08-cv-80bv4-KAM Document 2. Entered L. .:LSD Docket 09/05/21.. J Page 7 of 14 CASE NO.: 08-80804-ClV-MARRA/JOHNSON 2. The plaintiff has not asserted a cause of action against for intentional infliction of emotional distress. The plaintiff says she agreed to perform an illegal massage "to make some extra money" (DE I I at 7), only to "suffer severe mental anguish and pain" (DE 1-3 at 106) when her illegal scheme met with an allegedly superseding illegal scheme. To establish a cause of action for intentional infliction of emotional distress, however, it is not sufficient to allege that "'the defendant has acted with an intent which is tortious or even criminal, or that [the defendant] has intended to inflict emotional distress, or even that [the defendant's] conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort."' Metro. Life Ins. Co.' McCarson, 467 So. 2d 277, 278 (Fla. 1985) (quoting Restatement (Second) of Torts § 46 (1965)). Rather, "the conduct as a matter of law must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency." Southland Corp.'. Bartsch, 522 So. 2d 1053, 1056 (Fla. 5th DCA 1988). Here, when it comes to , the amended complaint fails to meet these standards.5 Indeed, the plaintiff does not allege that committed an assault; or that acted forcibly; or that acted coercively. Further, the plaintiff says she undressed, and presumably remained in Epstein's home, out of "shock, fear, and trepidation" (DE 1-3 at 104), not because of anything allegedly done by These allegations, to the extent they have to do with do not allege anything that did that is "so extreme in degree as to go beyond all possible bounds of decency." Bartsch, 522 So. 2d at 1056. The standard for determining LIED "is a matter of law, not a question of fact."Pontonl. Scaifone, 468 So. 2d 1009, 1011 (Fla. 2d DCA 1985) (citation omitted). Even when alleged 5 This Response, in focusing only on fraudulent not address the plaintiff's claims against the diverse defendants, Jeffrey Epstein and 7 EFTA00175549 Case 9:08-cv-80o04-KAM Document Entered t— FLSD Docket 09/05/2, Page 8 of 14 CASE NO.: 08-80804-CIV-MARRA/JOHNSON conduct is "condemnable by civilized social standards," it may still "not ascend, or perhaps descend, to a level permitting [a court] to say that the benchmarks enunciated [by the Florida Supreme Court] . . . have been met." Id. Further, an LIED claim must be evaluated "as objectively as is possible" to determine whether the conduct "is 'atrocious, and utterly intolerable in a civilized community.'" Id. (quoting McCarron, 467 So. 2d at 278) (emphasis added). When it comes to the plaintiff talks about being double-crossed. But in emphasizing her own response to alleged deception (DE 1-3 at 104), and in explaining her decision to remain in the massage room (DE 1-3 at 103-04), the plaintiff ignores the basic principle that "the subjective response of the person who is the target of the actor's conduct does not control the question of whether the tort [of LIED] occurred." Bartsch, 522 So. 2d at 1056 (citing Patton, 468 So. 2d at 1011) (emphasis added). Here, the plaintiff alleges, at most, that coordinated an openly illegal transaction with her (DE 1-3 at 103), but that did not tell her everything that might happen while she was engaged in her illegal activities. This theory of liability, even in a light most favorable to the plaintiff, is far too attenuated to support an LIED claim. To start with, the plaintiff acknowledges that she intended "to give Epstein a massage for monetary compensation" (DE 1-3 at 103), even though she was unlicensed, untrained, and unqualified to perfonn this professional service; the plaintiff also acknowledges that she pretended to be 18 (DE 1 at 61). Apart from the fact that plaintiff's conduct is flatly proscribed by Florida's criminal code, see Fla. Stat. § 480.047, these allegations, when viewed "as objectively as is possible," simply do not implicate an alleged go-between for plaintiff's own criminality, in something "'atrocious, and utterly intolerable in a civilized community" for 8 EFTA00175550 Case 9:08-cv-80oU4-KAM Document Entered'... FLSD Docket 09/05/2. .d Page 9 of 14 CASE NO.: 08-80804-CIV-MARRA/JOHNSON purposes of establishing an IIED claim. Ponton, 468 So.2d at 1011 (quoting McCarson, 467 So. 2d at 278). Even if the plaintiff was "shock[ed]" (DE 1-3 at 104) to learn that had engineered some sort of misdirection, that is still not enough to support an IIED claim against Again, it is not "'enough that the defendant has acted with an intent which is tortious or even criminal, or that [the defendant] has intended to inflict emotional distress, or even that [the defendant's] conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.'" McCarson, 467 So. 2d at 278 (quoting Restatement (Second) of Torts § 46 (1965)). Here, the amended complaint does not allege that knew an alleged assault would take place; besides which, the plaintiff says she was assaulted by someone else (DE 1-3 at 104-05). See Baker'. Fitzgerald, 573 So. 2d 873, 873 (Fla. 3d DCA 1990) (per curiam) ("Appellant's claim for intentional infliction of emotional distress fails because there was no showing of outrageous conduct directed at the appellant herself.") (emphasis added). Further, there is nothing in the record to suggest that knew the plaintiff would remove her clothing, or stay in the massage room, out of "shock, fear and trepidation" (DE 1-3 at 104), when the plaintiff was never coerced, by , to do anything. Cf. Habelowl Travelers Ins. Co., 389 So. 2d 218, 220 (Fla. 5th DCA 1980) (affirming dismissal of claim for intentional infliction of emotional distress where there were "no allegations . . . indicating that [the plaintiff] was particularly sensitive or susceptible to emotional distress, or that [the defendant] had any basis to know she was" (citing Steiner & Munach, P. A.'. Williams, 334 So. 2d 39 (Fla. 3d DCA 1976))). 9 EFTA00175551 Case 9:08-cv-808u4-KAM Document 2 Entered LSD Docket 09/05/20, Page 10 of 14 CASE NO.: 08-80804-C1V-MARR A/JOHNSON For these reasons, the plaintiff has not stated a cause of action against for intentional infliction of emotional distress. 3. The plaintiff has not asserted ft cause of action against for civil RICO. The plaintiff, again substituting superficially framed legal standards for actual analysis, says she "was directly harmed by the [defendants] scheme." (DE II at 9.) This bare assertion completely ignores the RICO discussion presented in the removal petition (DE 1 at 19-21), but more important, refuses to acknowledge that section 772.104 allows someone to bring a civil RICO claim only if "she has been injured by reason of" any RICO violation. § 772.104, Fla. Stat. (2007) (emphasis added). Here, the plaintiff clearly alleges that she was injured as a result of "a sexual assault . . . in violation of Chapter 800 of the Florida Statutes" (DE 1-3 at 105), a statute that has nothing to do with, and does not constitute a predicate act in furtherance of Florida RICO. Cf § 772.104, Fla. Stat. (listing predicate acts for Florida RICO). The plaintiff hardly establishes a RICO claim merely by reciting that she "was a victim of Defendants' scheme because she was one of the underage girls found and delivered to Defendant Epstein by Defendant and that she endured Epstein's actions as he tried to get her to engage in, and forced upon her, acts of prostitution and lewdness." (DE II at 9.) Not just in this passage, but indeed throughout her entire amended complaint, the plaintiff uses the term "scheme" as though it were a password for gaining access to RICO standing. Cf. Newton'. Tyson Foods, Inc., 207 F.3d 444, 447 (8th Cir. 2000) (observing in the context of indirect and attenuated RICO allegations that "[t]he mere recitation of the chain of causation alleged by the plaintiffs is perhaps the best explanation of why they do not have standing in this case"). 10 EFTA00175552 Case 9:08-cv-80bv4-KAM Document 2. Entered o. LSD Docket 09/05/26 Page 11 of 14 CASE NO.: 08-80804-CIV-MARRA/JOHNSON In sum, the plaintiff has said nothing to rebut what remains obvious: that her entire lawsuit, including her RICO claim, rests on an alleged "sexual assault . . . in violation of Chapter 800 of the Florida Statutes." (DE 1-3 at 105.) Thus, the plaintiff has failed to allege a cause of action against See Baischl. Gallina, 346 F.3d 366, 373 (2d Cir. 2003) ("[A] plaintiff does not have standing if [sjhe suffered an injury that was indirectly (and hence not proximately) caused by the racketeering activity or RICO predicate acts, even though the injury was proximately caused by some non-RICO violations committed by the defendants.") (emphasis added); lloatsonl. New York Archdiocese, No. 05 Civ. 10467, 2007 WI. 431098, at *12 (S.D.N.Y. Feb. 8, 2007) (dismissing RICO claim with prejudice where amended complaint was "wholly devoid of a single act which constitutes a racketeering activity," even though the plaintiff had "'alleged a larger picture" involving, among other things, allegations of sexual abuse) (emphasis added). By re-writing Florida's RICO statute to encompass Chapter 800, the plaintiff once again seeks (hypothetical) damages against without any statutory basis. This tactic, besides being ineffectual to prevent removal, flouts the fact that "the RICO statute is complex, arcane, and difficult to plead." Id. CI id. at **12-16 (imposing sanctions in response to baseless RICO claim brought against the backdrop of sexual-abuse allegations, observing that "[t]he immediate link between the filing of the complaint and the press conference [held by the plaintiff's counsel] support[s] the inference that [there was an] intent[] . . . to injure [the defendants' reputation by bringing a RICO claim]'). 11 EFTA00175553 Case 9:08-cv-80bv4-KAM Document Entered t,. •LSD Docket 09/05/2i_ J Page 12 of 14 CASE NO.: 08-80804-CIV-MARRA/JOHNSON Although asserting a RICO claim may be part of the plaintiff's media strategy,6 it is without legal merit and cannot operate to prevent removal. Conclusion Based on the foregoing, and the plaintiff's failure to address, let alone rebut, the fraudulent-joinder arguments presented in the removal petition, neither remand nor attorneys' fees are warranted in this case. Respectfully submitted, LEWIS TEIN, P.L. 3059 Grand Avenue, Suite 340 Coconut Grove. Florida 33133 Tel: Fax: By: /s/ Michael R, Tein GUY A. LEWIS Fla. Bar No. 623740 MICHAEL R. TEIN Fla. Bar No. 993522 ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Florida 33401 Tel. Fax. By: Jack A. Goldberger Fla. Bar No. 262013 [email protected] 6 See Ricci—Leopold Home Page, http:// www.riccilaw.com (click on "Breaking News," then access the hyperlink entitled, 03/13/08 — Consumer Justice Attorney Ted Leopold Files Case to aid Jane Doe in seeking justice against sexual predator Jeffrey Epstein and his associates) (highlighting RICO count in first sentence of press release) (last visited on Sept. 3, 2008). 12 EFTA00175554 Case 9:08-cv-80bv4-KAM Document 2. Entered o.. .-LSD Docket 09/05/26 , Page 13 of 14 CASE NO.: 08-80804-C1V-MARRA/JOHNSON BURMAN, CRITTON, LUTTIER & COLEMAN, LLP 515 N. Flagler Drive, Suite 400 West Palm Beach. Florida 33401 Tel. Fax. By: Robert D. Critton, Esq. Fla. Bar No. 224162 [email protected] Michael J. Pike, Esq. Fla. Bar No. 617296 Attorneys for Defendant Jeff Ry Epstein CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1 Undersigned counsel has conferred in good faith with counsel for the plaintiff, who opposes the relief requested in this motion. Counsel for co-defendant agrees to the positions taken in this memorandum. Is/Michael R. Tein Michael R. Tein CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 5, 2008, I electronically filed the foregoing document with the Clerk of the Court using CMJECF. I also certify that the foregoing document is being served this day on counsel of record identified below by U.S. Mail. Is/ Michael R. Tein Michael R. Tein 13 EFTA00175555 Case 9:08-cv-808u4-KAM Document 2, Entered o,. .-LSD Docket 09/05/20. Page 14 of 14 CASE NO.: 0S-80804-CIV-MARRA/JOHNSON SERVICE LIST Theodore J. Leopold, Esq. Ricci-Leopold, P.A. 2925 PGA Blvd., Suite 200 Palm Beach Gardens, FL 33410 Fax: Counselfor Plaintiff'Jane Doe Douglas M. McIntosh, Esq. Jason A. McGrath, Esq. McIntosh, Sawran, Peltz & Cartaya, P.A. Centurion Tower 1601 Forum Place, Suite 1110 West Palm Beach Florida 33401 Fax. Counsel for Defendant Bruce E. Reinhart, Esq. (U.S. Mail) Bruce E. Reinhart, P.A. 250 South Australian Avenue Suite 1400 West Palm Beach Florida 33401 Fax. Counsel for Defendant 14 EFTA00175556 Case 9:08-cv. ...,04-KAM Document , Entere i FLSD Docket 08/18ica. s Page 1 of 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80804-CIV-MARRA/JOHNSON JANE DOE, a/k/a, JANE DOE NO. I, Plaintiff, VS. JEFFREY EPSTEIN -,and Defendants. MOTION TO REMAND Plaintiff Jane Doe moves the Court to remand this action to state court for lack of subject matter jurisdiction and states as follows: 1. Although Plaintiff Jane Doe, a Florida citizen, sues , also a Florida citizen, in this action, Defendants removed the case to federal court on July 21, 2008, citing diversity of citizenship as the basis for federal subject matter jurisdiction. 2. Defendants claim that who has described herself as Heidi Fleiss (the Hollywood madam),' has "nothing to do with the plaintiff's case against Mr. ' See New York Post Oct. 12007 (reporting "Some of the girls, legal documents indicate, were recruited by now 21, who described herself as `like Heidi Fleiss,' the notorious Hollywood madam."); Palm Beach Post, Aug. 14, 2006 (reporting that Defendant told detectives, `I'm like a Heidi Fleiss.'"). EFTA00175557 Case 9:08-cv. ...104-KAM Document . Entere, —1FLSD Docket 08/18r, Page 2 of 11 Epstein," (Notice of Removal, DE I, p. 3) and that Plaintiff fraudulently joined her in this action to prevent complete diversity.2 3. As demonstrated in Plaintiff's amended complaint, however, Defendant was a vital part of the scheme to lure underage girls, including Plaintiff, to Epstein's home in order to subject them to sexual abuse and induce them to engage in lewd behavior. Defendant was a key player in this scheme because she was paid by Epstein to recruit the underage girls and take them to Epstein's Palm Beach mansion. (Amended Complaint 11 11-15, DE I, pp. 302- 04). Without Defendant these girls, including Plaintiff, would not have been victimized. 4. Because the allegations in Plaintiff's amended complaint support the causes of action against Defendant for civil conspiracy, intentional infliction of emotional distress, and civil RICO, is a proper defendant in this action. 5. As is admittedly a citizen of Florida, (Affidavit of , DE 1, pp. 230-31) as is Plaintiff Jane Doe,3 (Amended Complaint 1 I, DE I, pp. 301; Deposition of Jane Doe, DE 1, pp. 31-32, 5:14-18, 6:6-10) federal diversity jurisdiction does not exist in this case. See 28 U.S.C. §1332(aX1) (providing that 'Defendants also argue that Plaintiff named as a defendant to prevent entry of a stay in this matter pursuant to 18 U.S.C. § 3509(k). The Court has since denied Defendants' motion, holding a stay of this proceeding is not warranted under either the statute or the Court's discretion. (Order Denying Motion to Stay, DE 7). ' Although Jane Does testified in deposition that she is a citizen of Florida, Defendants question whether she might actually be a citizen of Georgia because her mother lives in Georgia. (Notice of Removal, DE 1, pp. 7-8, n.6). Defendants fail to point out, however, that there is a question of whether Defendant Epstein is actually a citizen of Florida because he is now incarcerated in a Florida jail under an eighteen month sentence, to be followed by twelve months of community control, during which Epstein agreed he will be residing in Palm Beach, Florida. (Epstein Sentence, attached). 2 EFTA00175558 Case 9:08-cv-,,,j4-KAM Document Enters, FLSD Docket 08/18/44, Page 3 of 11 district courts have original jurisdiction over cases in which the matter in controversy exceeds $75,000 and is between "citizens of different States"). 6. Defendants' removal of this action was, therefore, improper. Because the Court lacks diversity jurisdiction, or any other form of subject matter jurisdiction, over this matter, the Court must remand this action to Florida state court. WHEREFORE, Plaintiff requests the Court remand this action to state court and requests Defendants be ordered under 28 U.S.C. §1447(c) to pay costs and attorney fees incurred as a result of the removal. MEMORANDUM OF LEGAL AUTHORITY "An action in state court may be removed to federal court when the federal courts have diversity or federal question jurisdiction. See 28 U.S.C. § I441(a). When a defendant removes a case to federal court on diversity grounds, a court must remand the matter back to state court if any of the properly joined parties in interest are citizens of the state in which the suit was filed. See Lincoln Prop. Co.'. Roche, 546 U.S. 81, 126 S.Ct. 606, 613, 163 L.Ed.2d 415 (2005) (citing 28 U.S.C. § 1441(b)). Such a remand is the necessary corollary of a federal district court's diversity jurisdiction, which requires complete diversity of citizenship." Henderson'. Washington Nat. Ins. Co., 454 F.3d 1278, 1281 (1Ith Cir. 2006). Federal Courts are obligated to construe removal statutes very strictly, and "all doubts about jurisdiction should be resolved in favor of remand to state court." Univ. of South Alabama'. American Tobacco Co., 168 F.3d 405, 41I (11th Cir. 1999) (citing Burns'. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994), and Coker'. Amoco Oil 3 EFTA00175559 Case 0:08-cv-._ _..,04-KAM Document . . Entere- FLSD Docket 08/18/“.s Page 4 of 11 Co., 709 F.2d 1433 (11th Cir. 1983)). "A presumption in favor of remand is necessary because if a federal court reaches the merits of a pending motion in a removed case where subject matter jurisdiction may be lacking it deprives a state court of its right under the Constitution to resolve controversies in its own courts." American Tobacco Co., 168 F.3d at 4I 1. Defendants have removed this action even though Plaintiff named a citizen of Florida, as a defendant because they claim Plaintiff's joinder of Defendant was done fraudulently in order to avoid federal jurisdiction. "In a removal case alleging fraudulent joinder, the removing party has the burden of proving that either: (I) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court." Crowe'. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1989) (citing Cabalceta I. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989)). "The burden of the removing party is a `heavy one.' Id. (quoting 13., Inc.'. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. Unit A 1981)). "To determine whether the case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff." Id. (citing B., Inc., 663 F.2d at 549). The Court may not "weigh the merits of a plaintiff's claim beyond determining whether it is an arguable one under state law." Id. "`If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." Id. (quoting Coker'. Amoco Oil Co., 709 4 EFTA00175560 Case 9:08-cv-.. ...44-KAM Document . Enters. FLSD Docket 08/18h.. Page 5 of 11 F.2d 1433, 1440-41 (11th Cir. 1983)). This protects a plaintiff's right to select the forum of his lawsuit and the manner in which to prosecute the suit, and avoids exposing the plaintiff to the possibility of prosecuting the suit to conclusion only to learn the federal court lacked jurisdiction on removal. Id. (citing Parks'. The New York Times Co., 308 F.2d 474, 478 (5th Cir.1962); Cowan Iron Works, Inc.'. Phillips Constr. Co., Inc., 507 F.Supp. 740, 744 (S.D. Ga. 1981)). Here, Defendants argue that removal is proper because Plaintiff cannot state a cause of action against Defendant under Florida law. Viewing the allegations of the amended complaint in the light most favorable to Plaintiff, it is clear that there is at least a possibility that Plaintiff can recover against Defendant under Florida law for each of the counts in the amended complaint—civil conspiracy, intentional infliction of emotional distress, and civil RICO. Joinder of Defendant in this action was therefore proper, which requires remand of this action to Florida state court. a. Plaintiff has a cognizable cause of action for civil conspiracy against Defendant "The elements of a civil conspiracy arc: (a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts performed pursuant to the conspiracy." Walters'. Blankenship, 931 So. 2d 137, 140 (Ha. 5th DCA 2006) (citing Florida Fern Growers Ass'n, Inc.'. Concerned Citizens of Putnam County, 616 So. 2d 562 (Fla. 5th DCA 1993)). As Defendants point out, there muse be an "actionable underlying tort or wrong" for an actionable conspiracy claim. Wright' Yurko, 446 So. 2d 1 162, 1165 (Fla. 5th DCA 1984). 5 EFTA00175561 Case 9:08-cv-„..../4-KAM Document . FLSD Docket 08/18tz.. _s Page 6 of 11 Plaintiff has grounded her conspiracy claim on the tort of sexual assault alleged in Count I of her amended complaint. In this count, Plaintiff alleges that Defendant Epstein !odiously assaulted her and states that the assault was committed in violation of Chapter 800 of the Florida Statutes. (Amended Complaint ¶¶ 17-18, DE I, pp. 304-05). Under Florida law, sexual assault is an intentional tort. See Doe'. Celebrity Cruises, Inc., 394 F.3d 891, 917 (11th Cir. 2004) ("Florida law equates sexual battery with an intentional tort."). This is true regardless of whether Defendant Epstein's violation of Chapter 800 of the Florida Statutes also creates a private right of action, which is a matter of first impression in Florida. Thus, Plaintiff has a cognizable cause of action for civil conspiracy against Defendant b. Plaintiff has a cognizable cause of action for intentional infliction of emotional distress against Defendant "The elements of the tort of intentional infliction of emotional distress arc: (1) The wrongdoer's conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused emotion[al] distress; and (4) the emotional distress was severe." Gallogly Rodriguez, 970 So. 2d 470, 471 (Fla. 2d DCA 2007) (citing LeGrandel Emmanuel, 889 So. 2d 991, 994-95 (Fla. 3d DCA 2004)). I Jere, Plaintiff has alleged that Defendant used false pretenses to lure her (a 14-year old girl) to the mansion of Defendant Epstein and physically took her to Epstein so that he could subject her to sexual abuse and lewd behavior. Defendant 6 EFTA00175562 Case 9:08-cv- . .,34-KAM Document Entere.. FLSD Docket 08/18,-. s Page 7 of 11 recruited Plaintiff, as she had done numerous others, under the belief that Plaintiff was economically disadvantaged and would be unlikely to contact authorities after being sexually assaulted and abused by Defendant Epstein. Defendant was paid by Defendant Epstein only after the sexual assault and abuse were completed. And, Defendant knew that Plaintiff would be severely emotionally traumatized after the abuse. (Amended Complaint 13 9, II, 15, 24-28, DE 1, pp. 302-03, 304, 306). These allegations are enough to demonstrate Plaintiff has a cognizable cause of action for intentional infliction of emotional distress against Defendant because they amount to conduct that would be viewed as outrageous by any reasonable person. Defendants argue that Plaintiff is barred from recovering for intentional infliction of emotional distress under Florida law because she went to Defendant Epstein's home with the intent to give him a massage for monetary compensation when it is a crime (a misdemeanor), under section 480.047, Florida Statutes, to practice massage without a license. They claim Plaintiff cannot "recover damages flowing from her own illegal conduct." (Notice of Removal, DE I, p. 16). First, Plaintiff's damages do not flow from her conduct in giving Defendant Epstein a massage without a license. Defendants Epstein, and engaged in a scheme to lure underage girls to Epstein's mansion in order for Epstein to sexually abuse them. Plaintiff's damages resulting from Defendants making her a victim to their intentional, outrageous, and criminal conduct in no way flow from her decision as a 14- year old girl to make some extra money by giving a massage. Furthermore, it is not a universal rule in Florida that any Plaintiff engaged in any criminal action, no matter how trivial, is barred from recovering damages suffered in 7 EFTA00175563 Case 9:08-cv A-KAM Document Enter€ . FLSD Docket 08/181,_ a Page 8 of 11 connection with that conduct. "The defense of in pari delicto is not woodenly applied in every case where illegality appears somewhere in the transaction; since the principle is founded on public policy, it may give way to a supervening public policy." Kullal. Hutton & Co., Inc., 426 So. 2d 1055, 1057 n. I (Fla. 3d DCA 1983). "'The fundamental purpose of the rule must always be kept in mind, and the realities of the situation must be considered. Where, by applying the rule, the public cannot be protected because the transaction has been completed, where no serious moral turpitude is involved, where the defendant is the one guilty of the greatest moral fault, and where to apply the rule will be to permit the defendant to be unjustly enriched at the expense of the plaintiff, the rule should not be applied." It (quoting Goldberg'. Sanglier, 96 Wash.2d 874, 639 P.2d 1347, 1353-54 (1982)). The fact that Florida law gives the trial court the discretion to apply the doctrine of in pari delicto, considering that all ambiguities must be resolved in favor of Plaintiff, does not take away from the fact that Plaintiff has a cognizable cause of action for intentional infliction of emotional distress against Defendant c. Plaintiff has a cognizable cause of action for civil RICO against Defendant Finally, Defendants argue that Plaintiff does not have a cognizable cause of action for civil RICO under section 772.104, Florida Statutes, because she was not directly injured by the Defendants' scheme. In Count IV of the amended complaint, Plaintiff alleges that Defendants engaged in a pattern of criminal activity in which Defendant found and delivered underage girls to Defendant Epstein in order for Epstein to "solicit, induce, coerce, entice, compel or force such girls to engage in acts of prostitution and/or lewdness." (Amended Complaint ¶ 32, DE I, p. 307). She also alleges that she 8 EFTA00175564 Case 9:08-cv:„_fil-KAM Document . Entere, FLSD Docket 08/18L _ J Page 9 of 11 was a victim of Defendants' scheme because she was one of the underage girls found and delivered to Defendant Epstein by Defendant and that she endured Epstein's actions as he tried to get her to engage in, and forced upon her, acts of prostitution and lewdness. (Amended Complaint ¶ 33, DE I, pp. 307-308). Plaintiff, who was a victim of Defendants' scheme, was directly harmed by the scheme and it is damages for this harm that she seeks in Count IV of the amended complaint. cf. Palmas Y Bambu, S.A.I. Dupont De Nemours & Co., Inc., 881 So. 2d 565, 570 (Fla. 3d DCA 2004) (holding plaintiff has standing to sue for civil RICO when her injuries flow directly from commission of the predicate acts, which means "when the alleged predicate act is mail or wire fraud, the plaintiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme"). Because Plaintiff was a target of Defendants' scheme and was harmed by their actions in carrying out the scheme, Plaintiff has a cognizable cause of action for civil RICO against Defendant CONCLUSION Plaintiff has cognizable causes of against Defendant , a Florida citizen, for civil conspiracy, intentional infliction of emotional distress, and civil RICO. Because Plaintiff has a possibility of recovering against Defendant under her amended complaint, Defendants have failed to meet their burden of demonstrating that was fraudulently joined in this action. As the parties lack complete diversity of citizenship, the Court lacks subject matter jurisdiction over this matter and should remand this case to Florida state court. 9 EFTA00175565 Case 9:08-cv-i_ . A-KAM Document • Enteret. ... .:LSD Docket 08/18/2, _ Page 10 of 11 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1.A.3 On August 18, counsel for Plaintiff conferred with counsel for the Defendants in a good faith effort to resolve the issues raised in this motion, but was unable to do so. sl Spencer T. Kuvin Spencer T. Kuvin (Florida Bar Number 089737) Certificate of Services I hereby certify that on August 18, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served on August 18, 2008, on all counsel of record or pro se parties identified on the attached Service List in the manner specified, via transmission of Notices of Electronic Filing generated by CM/ECF. sl Spencer T Kuvin Spencer T. Kuvin (Florida Bar Number 089737) Attorney E-Mail Address: RICCI—LEOPOLD, P.A. 2925 PGA Blvd. Suite 200 Palm Beach Gardens. FL 33410 Telephone: Facsimile: Counsel for Plaintiff Jane Doe 10 EFTA00175566 Case 9:08-cv-‘_ov4-KAM Document . . Enterer ,.. .-LSD Docket 08/18/2 Page 11 of 11 SERVICE LIST Doe'. Epstein, et. al. CASE NO: 08-80804-Civ-MARRA/JOHNSON United States District Court, Southern District of Florida Guy Alan Lewis. Email: Lewis Tein 3059 Grand Avenue, Suite 340 Coconut Grove. FL 33133 Phone: Fax: Counsel for Jeffrey Epstein Served via CM/ECF Michael R. Tein . Email: Lewis Tein 3059 Grand Avenue, Suite 340 Coconut Grove, FL 33133 Phone: Fax: Counsel for Jeffrey Epstein Served via CM/ECF 11 EFTA00175567 Case Docum _ FLSD Docket 08/1b,,...../8 Page 1 of 21 IN THE CIRI COURT OF THE FIFTEENTH JUD 'IAt CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA SENTENCE (As to Count(s) Defendant 6q ≤'kin Case Numbg) OBTS Number The a 1, ng personally b is Court, accompanied by the defendant's attorney of record, , and having been adjudicated guilty herein, and the Court having given eif the Defendant an opportun y to be heard and to offer matters in mitigation of sentence, and to show cause why defendant should not be sentenced as provided by law, and no cause being shown, IT IS THE SENTENCE OF THE COUpihat: The Defendant pay a fine of $ pursuant to § Florida Statutes, plus all costs and additional charges as outlined in the Order assessing additional charges, costs and fines as set forth in a separate order entered herein The Defendant isliereby committed to the custody of the ) Department of Corrections heriff of Palm Beach County, Florida tctiliyitment f orrections as a youthful offender for a term of . It is further ordered that the Defendant shall be allowed a total of days as credit for time incarcerated prior'to imposition of this sentrit _IkistArther ordered that the composite term of all sentences imposed for the counts specified in the order shall rum' • • :r j consecutive to ( concurrent with (check one) the following: :•.! nent [ 1 Any active sentence being served. JUN 3 0 2O3 [ I Specific sentences: In the event the above sentence is to the Department of Correctiens, the Sheriff of Palth Beach County, Plerida is hereby ordered and directed to deliver the Defendant to the Department of Correction4 togetheeiwitliateleY of the Judgment and Sentence, and any other documents specified by Florida Statute. Additionally, pursuant to §947.16(4), Flcirida Statutes, the Court retains jurisdiction over the Defendant. 1 Pursuant to §§322.055, 322.056, 322.26, 322.274, Fla. Stat., the Department of Highway Safety and Motor Vehicles is directed to revoke the Defendant's privilege to drive. The Clerk of the Court is Ordered to report the conviction and revocation to the Department of Highway Safety and Motor Vehicles. The defendant in Open Court was advised of the right to appeal from this Sentence by filing notice of appeal within thirty days from this date with the Clerk of the Court. The Defendant was also advised of the right to the assistance of counsel in taking said appeal at the expense of the State upon showing of indigency. DONE ND ORDERED in en Court at West Palm Beach, Palm Beach County, Florida this a :day of , 200 iin% 1 Form Circuit 5 (rev 8/2000) / rf ITT IPT trItr: EFTA00175568 Case 9:08-cv-L. ..4-KAM D c nt . . Enter. . ,o FLSD Dom.. 08/16,_ A Page 2 of 21 STATE OF FLORIDA IN TH L DIVISION OF THE CIRCUIT COUR FIFTEENTH JUDICIAL CIRCUIT, VS. IN AND FO "Zie9;t- eFike,, \• I. DEFENDANT: 2. DEFENDANT: 3. DEFENDANT: 4. DEFENDANT: 5. DEPENDANT: 6. DEFENDANT: 7. DEFENDANT: 8. DEFENDANT: 9. DEFENDANT: CASE NUMBE PLEA IN THE CIRCUIT COURT I am the defendant in the above-mentioned matter(s). and I am represented by the attorney indicated below. I understand I have the right to be represented by an attorney at all stages of the proceeding until the case is tennin and if I cannot afford an attorney, one will be appointed free of charge. t 1 I understand I have the right to a speedy and public trial either by jury or by court. I hereby waive and give u right. this I understand I have the right to be confronted by the witnesses against me and to cross examine them by myself or tin-r through my attorney. I hereby give up these rights. I understand I have the right to testify on my own behalf, but I cannot be compelled to be a witness against myself and may remain silent if I so choose. I hereby give up these rights. I understand I have the right to call witnesses to testify in my behalf and to invoke the compulsory process of the Court to subpoena those witnesses. I hereby give up these rights. I understand I have the right to appeal all matters relating to the charge(s) and, unless I plea Guilty or No C specifically reserving my right to appeal, I will give up such right of appeal. I understand that if I am not a United States Citizen, my plea may subject me to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service: and, this Court has no jurisdiction (authority) in such matters. I have not received any promises from anyone, including my attorney, concerning eligibility for any form of early release authorized by law and further no promises have been made to me as to the actual amount of time that I will serve under the sentence to be imposed. Further, I understand that this plea may be used to enhance future cr al penalties in any court system, even if adjudication of guilt is withheld. I offer my plea freely and voluntarily and of my own accord, with full understanding of all matters set forth i the pleadings and this waiver. IO.DEFENDANT: I have personally placed my initials in each bracket above, and I understand each and every one of the rights outlined above. I hereby waive and give up each of them in order to enter my plea to the within charge(s). I understand that even though the Court may approve the agreement of sentence, the Court is not bound by the agreement, the Court may withdraw its approval at any time before pronouncing judgment, in which case I shall,lig able to withdraw my plea should I desire to do so. I I. DEFENDANT: DEFENDANT'S ATTORNEY ONLY: Choose one: If applicable, I choose a program which is or may be spiritually based. JUN ? 3 '1 t If applicable, I choose a program which is NOT spiritually based. If applicable, I ha preference if the program is or may be spiritually based. ( G CICF6 DATE I am attorney of record. I have explained each of the above rights to the defendant and have explored the facts with him/her and studied his/her possible defenses to the charge(s). I concur with his/her decision to waive the rights and to enter this plea. I further stipulate that this document may be received by the Court as evidence of defendant's intelligent waiver of these rights and that it shall be filed by the Clerk as permanent record of that waiv r. OR Y FOR THE DEvENDA NT GOIClioeiF--- /DA /0 TE Original - Clerk Green - State Attorney Yellow - Defense Attorney Pink - Defendant cy CCC Page I of _L Goldenrod - Probatio -' 0' 1 lk Form 02 0.'1 • t.... I EFTA00175569 Case 9:08kt _.,4-KAM D.. Entei. ument FLSD D et 0811E d8 Page 3 of 21 IN THE RIM INAL DIVISION OF THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA. IN AND FOR PALM BEACH COUNTY CASE NO. OBTS NU BE c./V4)0 I STATE OP FLORIDA v. I PROBATION /gl i b/ Et i/ Erk i n VIOLATOR EFENDANT I ric bl 114 096 . Vjg 3t i ‘ S DA' • OF IRTH RACE GENDER SOCIAL SECURITY NUMBER Agifitiw I1 COMMUNITY CONTROL VIOLATOR CFN 20080267522 OR BK 22760 PG 1081 RECORDED 07/17/2008 08:52:50 Palm Beach County, Florida Sharon R. Bock,CLERK & COMPTROLLER Pg 1081; (lpg) JUDGMENT The above Defendant, being personally before this Court represented by I . Les id I (attorney.) Having been tried and found guilty of Having entered a plea of guilty to I 1 Having entered a pica of nolo the following crime(s): the following crime(s): contendere to the following cri me(s): COUNT FL) 2°4;7 $6:67a7r) DEGREE and no cause having been shown why the Defendant should not be adjudicated guilty. IT IS ORDERED THAT the Defendant is hereby ADJUDICATED GUILTY of the above erime(s). and having been convicted or found guilty of. or having entered a plea of nob contendere or gullty.regardless of adjudication, to attempts or offenses relating to sexual battery (ch. 794). lewdand lascivious conduct (ch. 800), or murder (s. 782.04). aggre(ciiiiatartiEt(rl784.045). burglary (s. 810.02). carjacking (s. 812.133), or home invasion robbery (s. 812.135). or any other offertwcified in section 913.325, defendant shall be required to submit blood specimens. ) and good cause being shown: IT IS ORDERED THAT ADJUDICATION OF GUILT BE WITHHELD. JUN 23 7: 3 • • SENTENCE I ) The Court hereby stays and withholds imposition of sentence as to count(s) and places the Defendant on • STAYED I ) Probation and/or I I Community Control under the.supervision of the Dept of Corrections (conditions of probylion set forth in separate order). SENTENCE DEFERRED ( j The Coon hereby defers imposition of sentence until The Defendant in Open Coun was advised of his right to appeal from the Judgment by filing notice of appeal with the Clerk of Coon within thirty days following t be date sentence is imposed or probation is ordered pursuant to this adjudication. The defendant was also advised of his right to the assistance of counsel in taking said appeal at the expense of the State upon showing of indigene . DONE ND ORDERED i Open 6 Court 4 at Palm Beach Count , Florida. this day of 'SO AS ,.e. , 2111•9 . brook EFTA00175570 Case 9:08-cv-c _-4-KAM Dootig 0 3 t?Rt,t . .-2 Entel. FLISD Do t 3.8/1b,..,08 Page 4 of 21 Iktb4-1 PLEA IN THE CIRCUIT COURT THE FOLLOVVING IS TO REFLECT Al .l TERMS OF THE NEGOTIATED SETTLEMEN*1 Name: Jeffrey E. Epstein Plea: Guilty 1 NP.---_.. SIMI .,lister _Dellloe a D 06CF009454A Felony Solicitation of Prostitution 1 No 3.FEI rocuring Person Under 18 for Prostitution I No 2 Fr; PSI: Walved/Not Required RequiredrReguested ADJUDICATION: Adjudicate (x j SENTENCE: On 06CF009454AMB, the Defendant Is sentenced to 12 months in the Palm Beach County Detention Facility, with credit for (one) day time served. wifFIP4 34 A. totkoNet On 08CF009381AMB, the Defendant Is sentenced to 6 month:An the Palm Beach County Detention Facility, with credit for 1 (one) day time served. This 6 month sentence is to be served consecutive to the 12 month sentence in 06CF009454AMB. Following this 6 month sentence, the Defendant will be placed on 12 months Community Control 1 (one). The conditions of community control are attached hereto and incorporated herein. OTHER CONIMEWILOR CONDITIONS: Asa special condition of his community control, the Defendant Is to have no unsupervised contact with minors, and the supervising adult must be approved by the Department of Corrections. The Defendant is designated as a Sexual Offender pursuant to Florida Statute 943.0435 and must abide by all the corresponding requirements or the statute, a copy of which is attached hereto and incorporated herein. The Defendant must provide a DNA sample In court at the time of It r• 7 • v., . - JUN 1n • . EFTA00175571 Futraie):991Z-IMIADAYots APIA vhilifitatoild1:8D Dgeotsict i2,,L,J08 Page 5 of 21 IONSOF SUPERVISION: . . • c TAMUNITY CONTROL STANDARD CONDITIONS: You will remain confined to your residence except ono half hour before and after' your approved employment,. community service work, or any other activities approved by your Probation officer. You will maintain an hourly accounting of all your activities on a daily log which.you will submit to your supervising officer upon request. • . . • The Department of Corrections, may at its discretion, places you on Electronic Monitoring during the term of your Community Control. t placedon Electronic Monitoring, you will weer a monitor at all times. You will maintain a private phone line, be financially responsible for any lost or damaged equipment and follow all rules and regulations as instructed. The telephone will be available within five working days of being placed bn Electronic Monitoring Program. While on electronic monitoring you will remain confined to your residence and axe prohibited from being outside the residential walls. .• .. . . . (d) .0 while being monitored and the monitor is fou nd to have been tampered with you shall be taken into custody immediately, if the officer determines that your were not at your schedules place of work or school while allowed to be outside tla,e residence then in that event you shall be taken into custody immediately. If taken into custody, you shall be held without bond and shall, on the next working day, brought before a Judge presiding over his or her case for further Liposlon 1111 1i i ' a ejiscretion of rhepresidina Judge . (e) If placed on Electronic Monithring you will pay to the State of Florida, for the cost of Electronic Monitorinill.00 per ' day, perP.S. 948,09. . . , . r 0 D e . c e r o f • I A A i ( & e . . . r-cs i ci. i A-7s ; e..-74-• 3 -3 : gele? .Y i 1 i a Way, ,, CONDITIONS • (c) ER-P (a) You will submit to and, unless otherwise waived, be financially responsible for drug testing, urinalysis at least on a . monthly basis, and counseling if deemed appropriate by your supervising officer. • . (1)) You will enter and successfullycomplete a non-secure or inpatient drug treatment program if deemed appropriate by • your officer. . . . . . (c) You will comply with any curfew restrictions, confinement approved residence or travel restrictions as instructed by your officer and approved by the Officer's Supervisor. you shall submit to a mandatory curfew from 10:00 PM to 6:00 AM (if the victim was under the age of 18-years) you shall not live within 1000 feet of a school, day care center, park, . playground, or other place where childrenregularly congregate. . • (c) you shall enter, actively participate in, and successfully complete a. sex offender treatment program with a therapist particularly trained to treat sex offender, et pro)ationer's or community controlees expense. @ x,Pou shall not have any contact with the viotlin?direcdy or indirectly, including through a third persoia, unless approved by the victim, the therapist and 'sentencing court. . . . (if the victim was under the age. of 18 years) you shall not, until you successfully attend and complete the sex offender program, have any unsupervised contact with a child under the age of 18 years, unless authorized by the sentencing court, without an adult present who is responsible for the child's welfare and which adult has been advised of the crime and is approved by the sentencing court. 'f the victim was under the ago of 18 years) you shall not work for pay or as a volunteer in any school, day care center, ark, playground, or other place where children regularly congregate. • Re— . . , you shalltot view, wn, or posses any obscene, pornographic or sexually stimulating. istlai or auditory material, including telephone, electronic media, computer programs or computer services that are relevant to your deviant behavior pattern. 'You shall submit two specimens of bland to the Florida Department of Law Enforcement to be registered with the DNA Data Bank. . . • ' (1) You shell make restitution to the victim as ordered by this court pursuant to A.S. 775.089 for all necessary medical and related professional service:, relating rOthe physical, psychiatric and psychological are of the victim. : • You shall submit to a warrantless search by your probation officer or community control officer of y ur person residence, or vehicle. . . •• CO ifttay.v., C4 Deca l-e ta In-1— 4 lea IrC-- ea-katLtif t/t.) 1:44, L } . . 1..". Mb C Ci Ot.3- 0.-- n11-1A,t net \-1 %VI, 6 0,?.... • -ti fr-j. X_ tkrtailic_, , 0 Dtkn 61a-tot-- 1-7, it) Ch/14 fi a11461 Se% Of Ct ro Wrld ck,i4j* (11-. )5 -..)-5O AlAkirrxA; at i /4-ha. PI /14 ri EFTA00175572 • ..piCase iJ Entet„n FLSD D 8/1 b.- .M8 Page 6 of 21 you shall submit to a mandatory curfew from 10:00 PM to 6:00 AM (if the victim was under the age of 18 years) you shall not live within 1000 feet of a school, day care center, park, playground, or other place where children regularly congregate. you shalt enter, actively participatein, and successfully complete a sex offender treatment program with a therapist particularly trained to treat sex Offender, at probationer's or community controlus expense. you shall not have any contact with the victim; directly or indirectly, including through a third person, unless approved by the victim, the therapist and sentencing court (if the victim was under the age of 18 years) you shall not, until you successfully attend and complete the seroffender program, have any unsupervised contact with a child under the age of 18'yeart, unless authorized by the sentencing court, Without an adult present who is responsible for the child's welfare and which adult has been advised of thetrime • and is approved by the sentencing oourt. (f) (if the victim was under the age of 18. years). yoU shall not work for pay or as a volunteer ih any school; day care center, park, playground, or other place where children regularly congregate. CO Unless otherwise indicated in the treatment planprovided by the sexual offender treatment program, you shall not view, own, or posses any obscene, pornographic or sexually stimulating visual or auditory material, including telephone,. ' electronic media, computer programs or computer services that are relevant to your deviant behavior pattern. ly You shall submit two s ecimens of blood to the Florida DenattnItnt of LEON Rnforceme.nt. to he registered with thp ONA Data Bank. (i) You shall make restitution to-the victim as ordered by this court pursuant to P.S. 775.089 for all necessary medical and related professional services relating to the physical, psychiatric and psychologicalcare of the victim. 0) You shall submit to a WarranUess search by your probation officer or community control officer of yolu person, residence. or. vehicle - --- 1 ym CiThiRcaTiflrto a treatment program,.partitip,ate onceftwice annually in polygraph examination to obtain information . necessary for risk management and treatment and to reduce your denial mechanisms'. Your polygraph examinations must be conducted by a polygrapher trained specifically in the use of polygraph for monitoring sex offenders and it shall be paid by you. The results of the polygraph examinations shall not be used as evidenced in court to prove that a violation of community supervision occurred. . You shall maintain a driving log, you shall not drive a'motor vehicle white alone without prior approval of your supervising officer. . . . . . (if There was sexual contact) you shall submit to, at probationer's or.community controlee's expense,pn WV test with the results to be released to the victim,.or the victim's parents or guardian. it-t9 You will not obtain or use a Post Office Box Without the prior approval of the supervising officer. (c., You .will submit to electronic monitoring when necessary by the community control or probation officer and his . or her supervisor, and ordered by the court at the recommendation of the Department of Corrections. • ' . Dther: — • • THE COURT RES R.VHS THE RIGHT TO RESCIND, MODIFY, OR REVOKE SOTS19/4 TO RhIT PROVID13D BY LAW DONE AND ORD'EARD AT West Palm Beath, Palm Beach County, Florida, this • Nunc Pro Tudc: A_Q/5/2005, • • Honorable SA adr* K. 03' • Jthlge; Circug Cotirt I have received a copy of the terms and conditions of my supervision. I have read and understand these condiL-ms agree to report to the Department of Corrections Probation Office for further instructions. Also, I hereby consent to the disclosure of my alcohol and drug abuse patient rec the confidentiality of which is federallyregulated under 42CPR, Part li, for the duration of my pervision. G 6 12 DATE UCTBD BY 6 EFTA00175573 Case 9:08-Cv-t— _ A-KAM 1t . . -2 Entei._ _ FLSD D /1t,, ..08 Page 7 of 21 948.101 Terms and conditions of community control and criminal quarantine community control.— (11 The court shall determine the terms and conditions of community control. Conditions specified in this subsection do not require oral pronouncement at the time of sentencing and may be considered standard conditions of community control. (a) The court shall require intensive supervision and surveillance for an offender placed into community control, which may include but is not limited to: 1. Specified contact with the parole and probation officer. 2. Confinement to an agreod•upon residence during hours away from employment and public service activities. 3. Mandatory public servico. 4. Supervision by the Department of Corrections by means of an electronic monitoring device or system. S. The standard conditions of probation set forth in s. 948.032 (b) For an offender placed on criminal quarantino community control, the court shall require: 1. Electronic monitoring 24 hours per day. 2. Confinement to a designated residence during designated hours. (2) The enumeration of specific kinds of terms and conditions does not prevent the court from adding thereto any other terms or conditions that the court considers proper. However, the sentencing court may only impose a condition of supervision allowing an offender convicted of s. 19. 4.011, s. 800.04, s. 827.071, or s. 847.0145 to reside in another sta