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Case 9:08-cv-80736-KAM Document 324 Entered on FLSD Docket 04/07/2015 Page 1 of 10
CASE NO.:08-CV-80736-ICAM
JANE DOE 1 and JANE DOE 2,
Petitioners,
vs.
Respondent.
ORDER DENYING PETITIONERS' MOTION TO JOIN UNDER RULE 21 AND
MOTION TO AMEND UNDER RULE 15
This cause is before the Court on Jane Doe 3 and Jane Doe 4's Corrected Motion
Pursuant to Rule 21 for Joinder in Action ("Rule 21 Motion") (DE 280), and Jane Doe 1 and Jane
Doe 2's Protective Motion Pursuant to Rule 15 to Amend Their Pleadings to Conform to
Existing Evidence and to Add Jane Doe 3 and Jane Doe 4 as Petitioners ("Rule 15 Motion") (DE
311). Both motions are ripe for review. For the following reasons, the Court concludes that they
should be denied.
I. Background
This is an action by two unnamed petitioners, Jane Doe 1 and Jane Doe 2, seeking to
prosecute a claim under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771. (DE I).
Generally, they allege that the respondent Government violated their rights under the CVRA by
failing to consult with them before negotiating a non-prosecution agreement with Jeffrey Epstein,
who subjected them to various sexual crimes while they were minors. (Id.). Petitioners initiated
this action in July 2008. (Id.).
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On December 30, 2014, two other unnamed victims, Jane Doe 3 and Jane Doe 4, moved
to join as petitioners in this action pursuant to Federal Rule of Civil Procedure 21. (DE 280).
Petitioners (Jane Doe 1 and Jane Doe 2) support the Rule 21 Motion. (IA at 11). Jane Doe 3 and
Jane Doe 4 argue that they "have suffered the same violations of their rights under the [CVRA]
as the" Petitioners, and they "desire to join in this action to vindicate their rights as well." a
at
I). The Government vehemently opposes joinder under Rule 21. (DE 290). The Government
argues that Rule 15 is the proper procedural device for adding parties to an action, not Rule 21.
(a. at 1).
"[O]ut of an abundance of caution," Petitioners filed a motion to amend their petition
under Rule 15, conforming the petition to the evidence and adding Jane Doe 3 and Jane Doe 4 as
petitioners. (DE 311 at 2). The Government opposes the Rule 15 Motion as well. (DE 314).
Among other things, the Government argues that amending the petition to include Jane Doe 3
and Jane Doe 4 should be denied because of their undue delay in seeking to join the proceedings,
and the undue prejudice that amendment will cause. (a.).
After considering the parties' submissions and the proposed amended petition, the Court
finds that justice does not require amendment in this instance and exercises its discretion to deny
the amendment.
II. Discussion
"The decision whether to grant leave to amend a complaint is within the sole discretion of
the district court." Laurie I. Ala. Ct. Crim. Apps. 256 F.3d 1266, 1274 (11th Cir. 2001). "The
court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Justice does
not require amendment in several instances, "includ[ing] undue delay, bad faith, dilatory motive
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on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.'" Laurie, 256 F.3d at 1274 (quoting Foman I. Davis,
371 U.S. 178, 182 (1962)). In addition to considering the effect of amendment on the parties, the
court must consider "the importance of the amendment on the proper determination of the merits
of a dispute." 6 Wright & Miller, Fed. Prac. & Fed. P. § 1488, p. 814 (3d ed. 2010). Justice does
not require amendment where the addition of parties with duplicative claims will not materially
advance the resolution of the litigation on the merits. See Herring I. Delta Air Lines, Inc., 894
F.2d 1020, 1024 (9th Cir. 1989).
A.
Rule 21 Motion
Jane Doe 3 and Jane Doe 4's first attempt to join in this proceeding was brought under
Rule 21. (DE 280). "If parties seek to add a party under Rule 21, courts generally use the
standard of Rule 15, governing amendments to pleadings, to determine whether to allow the
addition." 12 Wright & Miller, Fed. Prac. & Fed. P., p. 432 (3d ed. 2013)• see also Galustian
Peter, 591 F.3d 724, 729-30 (4th Cir. 2010) (collecting cases and noting that Rule 15(a) applies
to amendments seeking to add parties); Frank I. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.
1993) ("A motion to add a party is governed by Fed. R. Civ. P. 15(a) ....").
Rule 21, "Misjoinder and Non-joinder of Parties," provides the court with a tool for
correcting the "misjoinder" of parties that would otherwise result in dismissal. Fed. R. Civ. P.
21. Insofar as Rule 21 "relates to the addition of parties, it is intended to permit the bringing in
of a person, who through inadvertence, mistake or for some other reason, had not been made a
party and whose presence as a party is later found necessary or desirable." United States
Com.
Bank of N. Am., 31 F.R.D. 133, 135 (S.D.N.Y. 1962) (internal quotation marks omitted).
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In their Rule 21 Motion, Jane Doe 3 and Jane Doe 4 do not claim that they were omitted
from this proceeding due to any "inadvertence" or "mistake" by Petitioners; rather, they seek to
join this proceeding as parties that could have been permissively joined in the original petition
under Rule 20 ("Permissive Joinder of Parties"). As courts generally use the standards of Rule
15 to evaluate such circumstances, the Court will consider the joinder issue as presented in the
Rule 15 Motion.' The Court will consider the arguments presented in the Rule 21 Motion as if
they are set forth in the Rule 15 Motion as well. Because the arguments are presented in the Rule
15 Motion (and because the Court is denying the Rule 15 Motion on its merits, as discussed
below), the Rule 21 Motion will be denied.
The Court also concludes that portions of the Rule 21 Motion—and related
filings-should be stricken from the record. Pending for this Court's consideration is a Motion
for Limited Intervention filed by Alan M. Dershowitz, who seeks to intervene to "strike the
outrageous and impertinent allegations made against him and [to] request[] a show cause order to
the attorneys that have made them." (DE 282 at 1). The Court has considered Mr. Dershowitz's
arguments, but it finds that his intervention is unnecessary as Federal Rule of Civil Procedure
12(0 empowers the Court "on its own" to "strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(0.
Petitioners' Rule 21 Motion consists of relatively little argumentation regarding why the
Court should permit them to join in this action: they argue that (1) they were sexually abused by
The Court notes that, regardless of which motion it considers, the same standard
governs the addition of parties under Rule 21 and Rule 15. See Goston
Potter, No. 08-cv-478
FJS ATB, 2010 WL 4774238, at *5 (N.D.N.Y. 2010) (citing Bridgeport Music, Inc... Universal
Music Grp., Inc., 248 F.R.D. 408, 412 (S.D.N.Y. 2008)).
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Jeffrey Epstein, and (2) the Government violated their CVRA rights by concealing the non-
prosecution agreement with them. (DE 280 at 3; see id. at 7-8). However, the bulk of the Rule
21 Motion consists of copious factual details that Jane Doe 3 and Jane Doe 4 "would prove" "[i]f
allowed to join this action." (Li. at 3, 7). Specifically, Jane Doe 3 proffers that she could prove
the circumstances under which a non-party introduced her to Mr. Epstein, and how Mr. Epstein
sexually trafficked her to several high-profile non-party individuals, "including numerous
prominent American politicians, powerful business executives, foreign presidents, a well-known
Prime Minister, and other world leaders." (Id. at 3-6). She names several individuals, and she
offers details about the type of sex acts performed and where they took place.
id. at 5).2
At this juncture in the proceedings, these lurid details are unnecessary to the
determination of whether Jane Doe 3 and Jane Doe 4 should be permitted to join Petitioners'
claim that the Government violated their rights under the CVRA. The factual details regarding
with whom and where the Jane Does engaged in sexual activities are immaterial and impertinent
to this central claim (i.e., that they were known victims of Mr. Epstein and the Government owed
them CVRA duties), especially considering that these details involve non-parties who are not
related to the respondent Government. These unnecessary details shall be stricken.
The original Rule 21 Motion (DE 279) shall be stricken in its entirety, as it is wholly
superseded by the "corrected" version of the Rule 21 Motion (DE 280). From the corrected Rule
21 Motion, the Court shall strike all factual details regarding Jane Doe 3 between the following
sentences: "The Government then concealed from Jane Doe #3 the existence of its NPA from
Jane Doe 4's proffer is limited to sexual acts between Mr. Epstein and herself. (
DE
280 at 7-8).
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Jane Doe #3, in violation of her rights under the CVRA" (id. at 3); and "The Government was
well aware of Jane Doe #3 when it was negotiating the NPA, as it listed her as a victim in the
attachment to the NPA" (iij at 6). As none of Jane Doe 4's factual details relate to non-parties,
the Court finds it unnecessary to strike the portion of the Rule 21 Motion related to her
circumstances. Regarding the Declaration in support of Petitioners' response to Mr.
Dershowitz's motion to intervene (DE 291-1), the Court shall strike paragraphs 4, 5, 7, 11, 13,
15, 19 through 53, and 59, as they contain impertinent details regarding non-parties. Regarding
the Declaration of Jane Doe 3 in support of the Rule 21 Motion (DE 310-1), the Court shall strike
paragraphs 7 through 12, 16, 39, and 49, as they contain impertinent details regarding non-
parties. Jane Doe 3 is free to reassert these factual details through proper evidentiary proof,
should Petitioners demonstrate a good faith basis for believing that such details are pertinent to a
matter presented for the Court's consideration.
As mentioned, Mr. Dershowitz moves to intervene "for the limited purposes of moving to
strike the outrageous and impertinent allegations made against him and requesting a show cause
order to the attorneys that have made them." (DE 282 at 1). As the Court has taken it upon itself
to strike the impertinent factual details from the Rule 21 Motion and related filings, the Court
concludes that Mr. Derschowitz's intervention in this case is unnecessary. Accordingly, his
motion to intervene will be denied as moot.3 Regarding whether a show cause order should
3 This also moots Mr. Dershowitz's Motion for Leave to File Supplemental Reply in
Support of Motion for Limited Intervention. (DE 317). Denying Mr. Dershowitz's motion to
intervene also renders moot Petitioners' motion (DE 292) to file a sealed document supporting its
response to Mr. Dershowitz's motion. It will accordingly be denied as moot, and DE 293 (the
sealed response) will be stricken from the record.
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issue, the Court finds that its action of striking the lurid details from Petitioners' submissions is
sanction enough. However, the Court cautions that all counsel are subject to Rule 11's mandate
that all submissions be presented for a proper purpose and factual contentions have evidentiary
support, Fed. R. Civ. P. 11(b)(1) and (3), and that the Court may, on its own, strike from any
pleading "any redundant, immaterial, impertinent, or scandalous matter," Fed. R. Civ. P. 12(f).
B.
Rule 15 Motion
Between their two motions (the Rule 21 Motion and Rule 15 Motion), Jane Doe 3 and
Jane Doe 4 assert that "they desire to join in this action to vindicate their rights [under the
CVRAJ as well." (DE 280 at 1). Although Petitioners already seek the invalidation of Mr.
Epstein's non-prosecution agreement on behalf of all "other similarly-situated victims" (DE 189
at 1; DE 311 at 2, 12, 15, 18-19), Jane Doe 3 and Jane Doe 4 argue that they should be fellow
travelers in this pursuit, lest they "be forced to file a separate suit raising their claims" resulting
in "duplicative litigation" (DE 280 at 11). The Court finds that justice does not require adding
new parties this late in the proceedings who will raise claims that are admittedly "duplicative" of
the claims already presented by Petitioners.
The Does' submissions demonstrate that it is entirely unnecessary for Jane Doe 3 and
Jane Doe 4 to proceed as parties in this action, rather than as fact witnesses available to offer
relevant, admissible, and non-cumulative testimony. (See, e.g., DE 280 at 2 (Jane Doe 3 and
Jane Doe 4 "are in many respects similarly situated to the current victims"), 9 ("The new victims
will establish at trial that the Government violated their CVRA rights in the same way as it
violated the rights of the other victims."), 10 (Jane Doe 3 and Jane Doe 4 "will simply join in
motions that the current victims were going to file in any event."), 11 (litigating Jane Doe 3 and
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Jane Doe 4's claims would be "duplicative"); DE 298 at 1 n.1 ("As promised ... Jane Doe No. 3
and Jane Doe No. 4 do not seek to expand the number of pleadings filed in this case. If allowed
to join this action, they would simply support the pleadings already being filed by Jane Doe No. 1
and Jane Doe No. 2."); DE 311 at 5 n.3 ("[A]ll four victims (represented by the same legal
counsel) intend to coordinate efforts and avoid duplicative pleadings."), 15 (Jane Doe 3 and Jane
Doe 4 "challenge the same secret agreement—i.e., the NPA that the Government executed with
Epstein and then concealed from the victims. This is made clear by the proposed amendment
itself, in which all four victims simply allege the same general facts.")). As the Does argue at
length in their Rule 15 Motion, Jane Doe l's original petition "specifically allege[s] that the
Government was violating not only her rights but the rights of other similarly-situated victims."
(DE 311 at 2). The Court fails to see why the addition of "other similarly-situated victims" is
now necessary to "vindicate their rights as well." (DE 280 at 1).
Of course, Jane Doe 3 and Jane Doe 4 can participate in this litigated effort to vindicate
the rights of similarly situated victims—there is no requirement that the evidentiary proof
submitted in this case come only from the named parties. Petitioners point out as much, noting
that, regardless of whether this Court grants the Rule 15 Motion, "they will call Jane Doe No. 3
as a witness at any trial." (DE 311 at 17 n.7). The necessary "participation" of Jane Doe 3 and
Jane Doe 4 in this case can be satisfied by offering their properly supported—and relevant,
admissible, and non-cumulative—testimony as needed, whether through testimony at trial
see DE 280 at 9) or affidavits submitted to support the relevancy of discovery requests' (see
The non-party Jane Does clearly understand how to submit affidavits. See DEs 291-1,
310-1).
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id. at 10). Petitioners do not contend that Jane Doe 3 and Jane Doe 4's "participation in this
case" can only be achieved by listing them as parties.
As it stands under the original petition, the merits of this case will be decided based on a
determination of whether the Government violated the rights of Jane Doe 1, Jane Doe 2, and all
"other similarly situated victims" under the CVRA. Jane Doe 3 and Jane Doe 4 may offer
relevant admissible, and non-cumulative evidence that advances that determination, but their
participation as listed parties is not necessary in that regard. See Herring, 894 F.2d at 1024
(District court did not abuse its discretion by denying amendment where "addition of more
plaintiffs . . . would not have affected the issues underlying the grant of summary judgment."); cf.
Arthur . Stem, 2008 WL 2620116, at *7 (S.D. Tex. 2008) (Under Rule 15, "courts have held
that leave to amend to assert a claim already at issue in [another lawsuit] should not be granted if
the same parties are involved, the same substantive claim is raised, and the same relief is
sought." ).3 And, as to Jane Doe 4 at least, adding her as a party raises unnecessary questions
about whether she is a proper party to this action.'
Petitioners also admit that amending the petition to conform to the evidence—by
including references to the non-prosecution agreement itself-is "unnecessary" as the "existing
petition is broad enough to cover the developing evidence in this case." (DE 311). The Court
The Court expresses no opinion at this time whether any of the attestations made by
Jane Doe 3 and Jane Doe 4 in support of their motion will be relevant, admissible, and non-
cumulative.
The Govemment contends that Jane Doe 4 is not a true "victim" in this case because
she was not known at the time the Government negotiated the non-prosecution agreement, and
accordingly she was not entitled to notification rights under the CVRA. (See DE 290 at 10).
Any "duplicative" litigation filed by Jane Doe 4 would necessarily raise the issue of whether she
has standing under the CVRA under these circumstances.
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agrees, and it concludes that justice does not require amending the petition this late in the
proceedings.
III. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED as follows: the Rule 21 Motion
(DE 280) is DENIED; the Rule 15 Motion (DE 311) is DENIED; Intervenor Dershowitz's
Motion for Limited Intervention (DE 282) and Motion for Leave to File Supplemental Reply in
Support of Motion for Limited Intervention (DE 317) are DENIED AS MOOT; Petitioners'
Motion to Seal (DE 292) is DENIED AS MOOT; the following materials are hereby
STRICKEN from the record:
DE 279, in its entirety.
DE 280, all sentences between the following sentences:
"The Government then concealed from Jane Doe #3 the
existence of its NPA from Jane Doe #3, in violation of her
rights under the CVRA" (DE 280 at 3); and "The
Government was well aware of Jane Doe #3 when it was
negotiating the NPA, as it listed her as a victim in the
attachment to the NPA" (DE 280 at 6).
DE 291-1, paragraphs 4, 5, 7, 11, 13, 15, 19 through 53,
and 59.
DE 310-1, paragraphs 7 through 12, 16, 39, and 49.
DE 293, in its entirety.
DONE AND ORDERED in chambers at West Palm Beach, Palm Beach County,
Florida, this 6ih day of April, 2015.
United States District Judge
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