Case 9 :08-cv-80119-KAM

Case 9 :08-cv-80119-KAM JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. Document 1 Entered on FLSD Docket 02/06/2008 Pan gtotk 6 FILED by VT D.C. ELECTRONIC ebruary 6, 2008 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CLARENCE MADDOX CLERK U.S. Cat CT. S.D. OF HA. • MIAMI CASE NO.: 08-CV-80119-MARRA-JOHNSON COMPLAINT Plaintiff, Jane Doe No. 2 ("Jane" or "Jane Doe"), brings this Complaint against Jeffrey Epstein, as follows: Parties, Jurisdiction and Venue 1. Jane Doe No. 2 is a citizen and resident of the Commonwealth of Virginia, and is sui juris. 2. This Complaint is brought under a fictitious name to protect the identity of the Plaintiff because this Complaint makes sensitive allegations of sexual assault and abuse upon a minor. 3. Defendant Jeffrey Epstein is a citizen and resident of the State of New York. 4. This is an action for damages in excess of 550 million. 5. This Court has jurisdiction of this action and the claims set forth herein pursuant to 28 U.S.C. §1332(a), as the matter in controversy (i) exceeds $75,000, exclusive of interest and costs; and (ii) is between citizens of different states. 6. This Court has venue of this action pursuant to 28 U.S.C. §1391(a) as a substantial HERMAN 6 MERMELSTEIN. P. A. - 1 - viww.hermanlavccom Toff EFTA00222670 Case 9:08-cv-80119-KAM Document 1 Entered on FLSD Docket 02/06/2008 Page 2 of 6 part of the events or omissions giving rise to the claim occurred in this District. Factual Allegations 7. At all relevant times, Defendant Jeffrey Epstein ("Epstein") was an adult male, 52 years old. Epstein is a financier and money manager with a secret clientele limited exclusively to billionaires. He is himself a man of tremendous wealth, power and influence. He maintains his principal home in New York and also owns residences in New Mexico, St. Thomas and Palm Beach, FL. The allegations herein concern Epstein's conduct while at his lavish estate in Palm Beach. 8. Upon information and belief, Epstein has a sexual preference and obsession for underage minor girls. He engaged in a plan and scheme in which he gained access to primarily economically disadvantaged minor girls in his home, sexually assaulted these girls, and then gave them money. In or about 2004-2005, Jane Doe, then approximately 16 years old, fell into Epstein's trap and became one of his victims. 9. Upon information and belief, Jeffrey Epstein carried out his scheme and assaulted girls in Florida, New York and on his private island, known as Little St. James, in St. Thomas. 10. Epstein's scheme involved the use of young girls to recruit underage girls. (Upon information and belief, the young girl who brought Jane Doe to Epstein was herself a minor victim of Epstein, and will therefore not be named in this Complaint). Under Epstein's plan, underage girls were recruited ostensibly to give a wealthy man a massage for monetary compensation in his Palm Beach mansion. The recruiter would be contacted when Epstein was planning to be at his Palm Beach residence or soon after he had arrived there. Epstein or someone on his behalf would direct the recruiter to bring one or more underage girls to the residence. The recruiter, upon information and belief, generally sought out economically disadvantaged underage girls from western Palm Beach HERMAN & MERMELSTEIN. P. A. VYWW.hermanlaw.com - 2 - EFTA00222671 :Case 9:08-cv-80119-KAM Document 1 Entered on FLSD Docket 02/06/2008 Page 3 of 6 County who would be enticed by the money being offered - generally $200 to $300 per "massage" session - and who were perceived as less likely to complain to authorities or have credibility if allegations of improper conduct were made. This was an important element of Epstein's plan. 11. Epstein's plan and scheme reflected a particular pattern and method. Upon arrival at Epstein's mansion, the underage victim would be introduced to Sarah Kellen, Epstein's assistant, who gathered the girl's personal information, including her name and telephone number. Ms. Kellen would then bring the girl up a flight of stairs to a bedroom that contained a massage table in addition to other furnishings. There were photographs of nude women lining the stairway hall and in the bedroom. The girl would then find herself alone in the room with Epstein, who would be wearing only a towel. He would then remove his towel and lie naked on the massage table, and direct the girl to remove her clothes. Epstein would then perform one or more lewd, lascivious and sexual acts, including masturbation and touching the girl's vagina. 12. Consistent with the foregoing plan and scheme, Jane Doe was recruited to give Epstein a massage for monetary compensation. Jane was brought to Epstein's mansion in Palm Beach. Once at the mansion, Jane was introduced to Sarah Kellen, who led her up the flight of stairs to the room with the massage table. In this room, Epstein told Jane to take off her clothes and give him a massage. Jane kept her panties and bra on and complied with Epstein's instructions. Epstein wore only a towel around his waste. After a short period of time, Epstein removed the towel and rolled over exposing his penis. Epstein began to masturbate and he sexually assaulted Jane. 13. After Epstein had completed the assault, Jane was then able to get dressed, leave the room and go back down the stairs. Jane was paid $200 by Epstein. The young girl who recruited Jane was paid $100 by Epstein for bringing Jane to him. HERMAN & MERMELSTEIN, P. A. www.hermanlaw.com - 3 - EFTA00222672 .:Case 9:08-cv-80119-KAM Document 1 Entered on FLSD Docket 02/06/2008 Page 4 of 6 14. As a result of this encounter with Epstein, Jane experienced confusion, shame, humiliation and embarrassment, and has suffered severe psychological and emotional injuries. COUNT I Sexual Assault 15. Plaintiff Jane Doe repeats and realleges paragraphs 1 through 14 above. 16. Epstein tortiously assaulted Jane Doe sexually. Epstein's acts were intentional, unlawful, offensive and harmful. 17. Epstein's plan and scheme in which he committed such acts upon Jane Doe were done willfully and maliciously. 18. This sexual assault was in violation of Chapter 800 of the Florida Statutes, which recognizes as a crime the lewd and lascivious acts committed by Epstein upon Jane. 19. As a direct and proximate result of Epstein's assault on Jane, she has suffered and will continue to suffer severe and permanent traumatic injuries, including mental, psychological and emotional damages. WHEREFORE, Plaintiff Jane Doe No. 2 demands judgment against Defendant Jeffrey Epstein for compensatory damages, punitive damages, costs, and such other and further relief as this Court deems just and proper. COUNT II Intentional Infliction of Emotional Distress 20. Plaintiff Jane Doe repeats and realleges paragraphs 1 through 14 above. 21. Epstein's conduct was intentional or reckless. 22. Epstein's conduct was outrageous, going beyond all bounds of decency. 23. Epstein's conduct caused severe emotional distress to Jane Doe. Epstein knew or had HERMAN & MERMELSTEIN, P. A. www.hermanlaw.com - 4 - EFTA00222673 :Case 9:08-cv-80119-KAM Document 1 Entered on FLSD Docket 02/06/2008 Page 5 of 6 reason to know that his intentional and outrageous conduct would cause emotional trauma and damage to Jane Doe. 24. As a direct and proximate result of Epstein's intentional or reckless conduct, Jane Doe, has suffered and will continue to suffer severe mental anguish and pain. WHEREFORE, Plaintiff Jane Doe No. 2 demands judgment against Defendant Jeffrey Epstein for compensatory damages, costs, punitive damages, and such other and further relief as this Court deems just and proper. JURY TRIAL DEMAND Plaintiffs demand a jury trial in this action. Dated: February C2008 Respectfully submitted, HERMAN & MERMELSTEIN. P. A. HERMAN & MERMELSTEIN, P.A. Attorneys for Plaintiffs 18205 Biscayne Blvd. Suite 2218 Miami, Florida 33160 Tel: 305-931-2200 Fax: 305-931- By: Jeffrey M. Herman jherman@,hermanlaw.com Florida Bar No. 521647 Stuart S. Mcrmelstein [email protected] Florida Bar No. 947245 Adam D. Horowitz Florida Bar No. 376980 [email protected] www.hermanlaw.com - 5 - EFTA00222674 Case 9:08-cv-80119-KAM DocuncsiMik- CCNERealt:IFEITSD Docket 02/06/2008 Page 6 of 6 The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing, and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of the Court for the purpose of Initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) 1(a) PLAINTIFFS DEFENDANTS JANE DOE NO. 2, JEFFREY EPSTEIN (b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF OUT OF STATE (EXCEPT IN U.S. PLAINTIFF CASES) COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT NEW YORK (IN U.S. PLAINTIFF CASES ONLY) (c) ATTORNEYS (FIRM NAME. ADDRESS, AND TELEPHONE NUMBER) Herman & Mermelstein, PA.,18205 Biscayne Blvd., Suite 2218, Miami, FL 33160, (305) 931.2200 (d) CIRCLE COUNTY WHERE ACTION AROSE: PALM BEACH ATTORNEYS (IF KNOWN) q !ely V foul-K/9in- ) 0 4-)/71__ II. BASIS OF JURISDICTION (PLACE AN X ONE BOX ONLY) O 1. U.S. Government Plaintin O 2 U.S. Government Defendant III) O 3 Federal Question (U.S. Government Not a Party) X 4 Diversity (Indicate Citizenship of Parbes in Item III. CITTZENSHIP OF PRINCIPAL PARTIES (For Diversity Case Only) PTF DEF Citizen of This State 0 t O 1 Citizen of Another State X2 x 2 Citizen or Subject of s Foreign Country 0 3 03 PLACE AN X IN ONE BOX FOR PLAINTIFF AND ONE FOR DEFENDANT PTF DEF Incorporated of Principal Place of O 4 0 4 Business in This Stale Incorporated and Principal Place of O 5 O 5 Business in Another State Foreign Nation O 6 O 6 IV. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE. DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY.) DIVERSITY ACTION UNDER 28 U.S.C. §1332(a) FOR SEXUAL ASSAULT IVa. _5_ days estimated (for both sides) to try entire case V. NATURE OF SUIT (PLACE AN X IN ONE BOX ONLY) A CONTRACT A TORTS B FORFEITURE PENALTY A BANKRUPTCY A OTHER STATUS D I 10 Mani 0 i2,01AWn2 0 133.06•264 0 140 4113010016 ireivw.1 0 15"."1 """" Wri" 4 VA:waned 0 Jar. o 1511.1,343•0 Ad 0 IS? Rams, of Defail“ 511,4301Loans Mc. "urn) 6 o iS3 Rang 01 Oweirroi /Vests Seneca o 1035bckroblies a 0 mow Geese o 126C0,290 040:420 Latity PERSONAL INJURY 0 310 Milano 0 3.32 Plan 140,600 1160403102 0 315 IirgterePadue Umbday 0306 hnovilmerive0alLibitY 13 320 Mat LOW & SW*, °3m M044101POISOatel 0 330 7 23.41102272on' Sat won proem ustyr 0 34014.41* 0343 *ARM Rona USW, PERSONAL PROPERTY 0 =lax vet* a 3SS ila be WO* Proati Liable/ 0370 Ods / rad X 363 ORR 11 /4 010011NRY 0 371 Toe, measly 0 0360 Caw Plinewl eiricieu ore a ass Awry 0,12”032 Onnoci a 06i Aran" 0 623 0•4111003 6 Pic a 62$ Om ROSSI Saw* Cl Mowry 21 USC 211 0 630 Inge law 0 OW RR 1 Truck 0 ASO Ara Rye 0 NO 1303.43okal Salelluean 0 NO One o 422 *sow a use iss 0 423 Wintleampl a SC rot. KO Sou Roacoortwn 410 AnaNI2 430 Nam ara Maury 450 Conant= 4140,pvtec 6 420 0424:00101 470 (LWOW 'Murcia ard Camoi Ornalealon RIO Sea.. Swot •10 S•AttifievConouxlIeW A PROPERTY RIGHTS 0 WO Coonols 06$ Pw. OM Truienri Eche., 1175 Oates 0010.• I2USC34I0 211 R00^121 As 802 Ewalt 901242812/ I AO 203 enwoongetal lAseIrs RH Erwin mocon" MI tOS Fritts ollrfommion AO 920 APPUI Sr.. Delemnson 1.1R3441.41Aceen ate 0 260 coniseceein et sue 901.42 0 IMO Ors Itiseary Adtee ••ce6 Owlantiory NW am mar ie.00M lee 0460r6ton B SOCIAL SECURITY 0162 “PA1130td) 0 862 Mack Lure1923) 0 663 CINC.01WW WOW 0 1054 Silo ler An o ma as Noma AREAL PROPERTY A CIVIL RIGHTS B PRISONER PETITIONS A LABOR CI 210 Lard 030OrnnInn 0 220 rombam 6 0230 Rem Waal Law. 0 240 Teas le Lind 0 245 Ian Piatlat Leta/ 0 210 Al Onw Ras 1.200/1 0 441Vo010 0 442 En62,44401 0 444w.4, 1,10m1R204:40m4e6skas 0 444 0 4400104 OR R43111 0 5101.1710, 10 VasaSerene Kies 0).TM 0 530 Gnat' 0 5351140/. Penny 0 Lao untrue a one- 0 5930.4 We. •A ea id Fat 1. rat Strains ACI 0 720 Labor umpires Nam% e a730 later umwonert Rawer° 1 0601.401 Ad 0 740 Rafxry LAW nu 0 703 00•41.10XU130101 a 791 4,747ne• RN ac SIAM ACII a A FEDERAL TAX SUITS 0670 Taw NS Mini • or Oardird) a WI 11.9-Thod Poly 26 USC 1600 I FILED by D.C.; VI. ORIGIN it 1. Original 0 2. Removed from 0 3. Remanded from Proceeding State Court Appellate Court (Specify) 0 4. Refilled 0 6. Multidistrict Litigation 0 7. Appeal to District Judge from 0 5. Transferred from another district Magistrate Judgment VII. REQUESTED IN COMPLAINT CHECK IF THIS IS A O CLASS ACTION DEMAND $ o UNDER F.R.C.P. 23 CI Check YE complaint: JURY DEMAND: O NO VIII. RELATED CASE(S) IF ANY (See Instructicos): (SEE ATTACHED) JUDGE DATE pi . -1,0 46t SIGNATURE OF ATTORNEY OF RECORD UNITED STATES DISTRICT COURT S/F 1.2 REV. 9194 DOCKET NUMBER FOR OFFICE USE ONLY: Receipt No. Amount Date Paid: Wfp: EFTA00222675 Case 9:08-cv-80119-KAM Document 12 Entered on FLSD Docket 06/20/2008 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80119-MARRA-JOHNSON JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. DEFENDANT'S MOTION FOR STAY Defendant Jeffrey Epstein respectfully moves for a mandatory stay of this action under Title 18, United States Code, Section 3509(k). As discussed below, this action is subject to a mandatory stay based on the existence of two pending parallel criminal actions. Introduction This civil action is a private counterpart to two ongoing criminal actions, one in Palm Beach state court, the other in Miami federal court. Both cases purport to arise from the same occurrence: the alleged sexual assault of a minor, Jane Doe No. 2. A federal statute directly on point provides that when an alleged sexual assault involving a child victim results in a "criminal proceeding," a commonly EFTA00222676 Case 9:08-cv-80119-KAM Document 12 Entered on FLSD Docket 06/20/2008 Page 2 of 6 derived civil suit "shall be stayed until the end of all phases of the criminal action." 18 U.S.C. § 3509(k) (emphasis added).' A stay of this case is required until there is no longer a pending criminal action derived from the same underlying allegations. See 18 U.S.C. § 3509(k). Discussion The parallel state criminal action pending in Palm Beach Circuit Court is still in the discovery phase. State of Florida v. Jeffi-ey Epstein, Case No. 2006 CF 09454 AXX (Fifteenth Judicial Circuit, Palm Beach County). Meanwhile, there is also a parallel federal criminal grand jury action pending in the Southern District of Florida. In re Grand Jury, No. FGJ 07-103(WPB) (S.D. Fla.) Both cases arise out of the same occurrence and allege that the minor plaintiff is a victim. The language of section 3509(k) of title 18, United States Code, is clear: a parallel "civil action shall be stayed until the end of all phases of the criminal The full text of the mandatory-stay provision reads: If, at any time that a cause of action for recovery of compensation for damage or injury to the person of a child exists, a criminal action is pending which arises out of the same occurrence and in which the child is the victim, the civil action shall be stayed until the end of all phases of the criminal action and any mention of the civil action during the criminal proceeding is prohibited. As used in this subsection, a criminal action is pending until its final adjudication in the trial court. 18 U.S.C. § 3509(k). 2 EFTA00222677 Case 9:08-cv-80119-KAM Document 12 Entered on FLSD Docket 06/20/2008 Page 3 of 6 action." 18 U.S.C. § 3509(k) (emphasis added). When it comes to statutory construction, the mandatory nature of the word "shall" is well-settled. See, e.g., Lopez v. Davis, 531 U.S. 230, 241 (2001) (noting Congress' use of a mandatory `shall' to impose discretionless obligations") (emphasis added); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (explaining that "the mandatory `shall' . . . normally creates an obligation impervious to judicial discretion") (emphasis added). Cf. Miller v. French, 530 U.S. 327, 350 (2000) ("Through the PLRA [Prison Litigation Reform Act], Congress clearly intended to make operation of the automatic stay mandatory, precluding courts from exercising their equitable powers to enjoin the stay. And we conclude that this provision does not violate separation of powers principles.") (emphasis added). One district court within the Eleventh Circuit, facing the identical issue with a pending state prosecution, recently construed "the plain language of § 3509(k)" as "requirfing] a stay in a case . . . where . . . a parallel criminal action [is] pending." Doe v. Francis, No. 5:03 CV 260 MCR/WCS, 2005 WL 950623, at *2 (N.D. Fla. Apr. 20, 2005) (Francis I.1) (emphasis added). Accord Doe v. Francis, No. 5:03 CV 260 MCR/WCS, 2005 WL 517847, at *1-2 (N.D. Fla. Feb. 10, 2005) (Francis I) (staying federal civil action in favor of "a criminal case currently pending in state court in Bay County, Florida, arising from the same facts and involving the same parties as the Instant action," noting that "the language of 18 3 EFTA00222678 Case 9:08-cv-80119-KAM Document 12 Entered on FLSD Docket 06/20/2008 Page 4 of 6 U.S.C. § 3509(k) is clear that a stay is required in a case such as this where a parallel criminal action is pending which arises from the same occurrence involving minor victims") (emphasis added). There is no contrary opinion from any court. In determining that the federal stay provision is mandatory, the Francis II court expressed that there was apparently no case law supporting, or even "discussing the [avoidance] of a stay [under the command of] § 3509(k)." Francis H, 2005 WL 950623, at *2. Deferring to the statute as written, the Francis H court rejected the plaintiffs' argument that some of the alleged victims had already reached their majority. See id. The court similarly rejected the plaintiffs' argument that it would be in the victims' best interests to avoid a stay so as to counteract the victims' "ongoing and increasing mental harm due to the `frustrating delay in both the criminal case and [the civil] case.'" Id. The Francis II court, in adhering to the plain language of the statute, also adhered to the "well established priority of criminal proceedings over civil proceedings." Cf. United States v. Hanhardt, 156 F. Supp. 2d 988, 1000 (N.D. I11. 2001) (citing Fed. R. Crim. P. 50(a)). Conclusion Because this civil action arises from the same allegations as two pending criminal actions, § 3509(k) mandates a stay of this civil action. • 4 EFTA00222679 Case 9:08-cv-80119-KAM Document 12 Entered on FLSD Docket 06/20/2008 Page 5 of 6 WHEREFORE, Defendant Jeffrey Epstein respectfully requests that the Court enter a stay under 18 U.S.C. § 3509(k), coextensive with the state and federal criminal actions. Respectfully submitted, ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Florida 33401 Tel: 561 659 8300 Fax: 561 835 8691 By: /s/ Jack A. Goldberger Jack A. Goldberger Fla. Bar No. 262013 j [email protected] Attorneys for Defendant Jeffiey Epstein 5 EFTA00222680 Case 9:08-cv-80119-KAM Document 12 Entered on FLSD Docket 06/20/2008 Page 6 of 6 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7 Counsel for defendant has conferred in good faith with counsel for the plaintiff, who opposes the relief requested in this motion. Is/ Jack A. Goldberger Jack A. Goldberger CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 20, 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 counsel of record identified below by facsimile and U.S. Mail. Jeffrey M. Herman, Esq. Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Herman & Mermelstein, P.A. 18205 Biscayne Blvd, Suite 2218 Miami, Florida 33160 Fax: 305 931 0877 /s/ Jack A. Goldberger Jack A. Goldberger 6 EFTA00222681 Case 9:08-cv-80119-KAM Document 16 Entered on FLSD Docket 07/01/2008 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80119-MARRA-JOHNSON JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. DEFENDANT'S NOTICE CONCERNING MOTION TO STAY IDE 121 In connection with his motion to stay this action [DE 12], Defendant Jeffrey Epstein hereby notifies the Court that the State Court action, State of Florida' Jeffrey Epstein, Case No. 2006 CF 09454 AXX (Fifteenth Judicial Circuit, Palm Beach County), was resolved on June 30, 2008. See Final Disposition sheets, attached hereto as Exhibit A. The federal criminal proceeding, however, remains pending. Respectfully submitted, ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Florida 33401 Tel: 561 659 8300 Fax: 561 835 8691 EFTA00222682 Case 9:08-cv-80119-KAM Document 16 Entered on FLSD Docket 07/01/2008 Page 2 of 3 By: /s/ Jack A. Goldberger Jack A. Goldberger Fla. Bar No. 262013 jgoldberger@ agwpa.com Attorneys for Defendant Jeffrey Epstein 2 EFTA00222683 Case 9:08-cv-80119-KAM Document 16 Entered on FLSD Docket 07'01'2008 Page 3 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 1, 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 counsel of record identified below by facsimile and U.S. Mail. Jeffrey M. Herman, Esq. Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Herman & Mermelstein, P.A. 18205 Biscayne Blvd, Suite 2218 Miami, Florida 33160 Fax: 305 931 0877 /s/ Jack A. Goldberger Jack A. Goldberger 3 EFTA00222684 Case 9:08-cv-80119-KAM Document 16-2 Entered on FLSD Docket 07:01:2008 Page 1 of 4 EXHIBIT A EFTA00222685 Case 9:08-cv-80119-KAM Document 16-2 Entered on FLSD Docket 07/01/2008 Page 2 of 4 : tiP • ' CASE PIO ±-122OO.1.:IFO-51/4 541sXXX CF V. JEFFREY E. EPSTEIN Z41 'FP ^i ria4 Y tr..mr.y..PRzia"rtnivz•zrt : . • . 7 'Crt. Rep. lun,L__ Date : • -17 vcri J „Asir )----=-- • / PD e--P:9fot Pres, De ft--Pres of Pres.- W /- /O S Before the Court for. C r O Granted O Denied O With /Without Prejudiced ^-O Withdrawn O Court Reserves Ruling O Written Order to Follow O Warrant O ordered O Recalled O Bort Cl See Belbw DAlso Covers . 04 Cond O Bond Forf OOR: Distil / Revoked /Reinstated O Bond Fat Vacated O Previous Bond Reinstated, if B an /Reuniter O$GR:Disch/Revoked/Reinsmted • - - O State failed to file charges 0 -Released OR /8:O1L O Deft Indigent O PD Appt O Erg only . PD Pres • O- Court Appts _ Evaluation for: O Drug Farm O DOC Non-Secure Bed by • • • O Pre-Plea . O PSI ordered by/within ' .days O wfinput from DU / Staffing O Referred to: FIT / SAAP / PADD O Case p cod on theabsentee docket DEFT ENTERED A LEA OF: O NOT GUILTY GUILTY O NO CONTEST O BEST INTEREST O TO THE COURT Als,Charged-Cts MA.' er Cts Lesser Charge ' 40' Sw & lest dv of Rts Waived PSI Lesser Cts Lesser Charge 17ADJ GUILTY as Charged as to Cu____,21264 Lesstr Cts O FOUND GUILTY as Charged as to Cts Lesser Cts . O ADJ WftiELD as to Cts O SENT W/BELD as to Cts O FOUND AND ADJUDICATED DELINQUENT as to Cts ' ODisoOolenofollowflikd O FOUND & AD: NOT GUILTY as to Cts O Dismiss O Nolte Prase Cts . Prob / Comm Control: O Revoked O Reinsta O Modified O Stip/Found: (violent) Habitual Off. 775.084 a o SENTENCE: PBCJisilP/15 Cis: O Term. Successfully / Unsuccessfully - - . • . e-- - • exual Predator O Stip/Found:. P.R.R. / e Os. PBC2- Cts• / DOC. - Os. for / . . Deft Remanded :meretirlf O Deft to remain on same rel. status pending sent. • St W/Credit an / Consec / Co-'h in w/cases / : • O Execution of Sentence Stayed O Sentence Suspended O Time O Youthful Off O Habitual Off- O Min/ Maud- served as ki Cts • as to Cts O ABOVE SENTENCE1O BE FOLLOWED By: O Probation O Drag/Sex OffProb O Comm. Control' .O I . O E - See Pg. 2 O DRIVERS LICENSE TO BE SUSPENDED / REVOKED FOR YEARS AS'A RESULT OF THIS PLEA. , B Set /Remains Set / Reset • Div • Rm— at AM/PM Div Rm at AM/PM Set / Remains Set / Reset • O Deft sign O Def Co O Prob °Jail ODD O GAL Notified by mail by: O County Courthouse 205 N. Dixie, West Palm Beach O ASA O Courtroom, Criminal Justice Bldg. 38844 State Road 80, Belle Glade O Bondsman on / O Courtroom,- Criminal Justice Complex 3228 Gun Club Rd., West Palm Beach IF VON ARE A PERSON VAIN A OISAESUre WHO WEDS MY ACCOVIIKOCS NORDIN TO PARDMIME II TES PECCEEDEC1 YOU AfE 941111114 AT NO CUSP TO YOU.10 THE PROVISION OF • CERTAIN AS9STAhrE Kass CONTACT Lww JAFFE. ADA COORDIVEDE IN TIC ACEANSMATHE awe CHIT COM PAW BEACH MOEN ECWRFICEISM 205 N EWE I'MT, RE SSA WEST PALM MACK FL MEN: TUB:HONE (561)6%.4150, WWI a ME NNE ONS Of YOUR Rear OF THE NONCE. IF YOU AM HEARING OR VOCE IMPAIRED, CALL 14304554Th. — , Form 6)1 EDP Ray 11/06 EFTA00222686 Case 9:08-cv-80119-KAM Document 1 6- 2 Entered on FLSD Docket 07/01/2008 Page 3 of 4 Case No.: 20080=ND093Si= W ST of FL vs. JEFFREY'EPSEBIN charges. PROCURE PERSON lla MB GE' 18 FOR PAGSTI5lll-liCN (eater FROM 2006CF009454=kr Assad/ - Bond# Date in n • • - /udge . -• - . Crt. Rep. / • .11 )11017/4'..) ASA .4/./.47 DC r- , • - • Int _ . 4/..../j.::..n/tf .-Tet--Pres-/,Oot Pres. W i/W/O pa. OS. .1,: tin • Esq CP137- res / Not Pros. _....• . . -Beftliellti Court for: 9.4 A05 f I O Granted 0 Denied .. 0 With / Without Prejudice 0 Withdravin 0 COurt Reserves Ruling a Written Order to Follow O Warrant 0 Ordered 0 Recalled 0 Bond Set at S . Ince Below 0 Also Covers 0 Sp Cond 0. Bond Pod 0 OR: Disch / Revoked / Reinstated 0 Bond] Disch /Revoked •cISOR: Discb / Revoked /Reinstated Cl Bond Foil Vacated Cl Previous Bond Reinstated, if Bondsman agrees . Cl State failed to file charges - 0 Released O.R. / S.O.R. . 0 Deft Indigent o pp Sppt CI firg only PD Pres a Court ApPts _ . Evaluation for: 0 Drug PAIR 0 DOC Non-Secure Bed by • 0 Pre-Plea 0 PSI ordered by/within • days. 0 vainput. from DJJ /Staffing 0 Referred to: PTI / SAAP / PADD 0 Case pla on the absentee docket . • ' DEFT ENTERED A PLEA O12: 't3 NOT GUILTY. GUILTY ONO CONTEST Cl BEST INTEREST 0 TO THE COURT •• I i loc. At Charged-Cts .< Lesser Cts • -Lesser Charge . t i q sw & Thu Adv of Rts of gaived PSI ' Lesser Cts • teiserCharge • ADS GUILTY as Charged as to Cts el •1••?A• y Lesser CG • • • • 0 FOUND GUILTY as Charged as to as .. Lesser Cts• •• CP ADJ• W/HELD as to Cts 0 -SENTW/1-= astoCts ' CI FOUND AND ADJUDICATED DELINQUENT as to Cts• • ' • • • 0 Dispo Order to follow / Piled 0 POUND & ADI NOT GUILTY as to Cts 0 DisMies : 0 NolleProsseCts Prob / Comm Control: 0 Revoked .0 Reinstated 0 Modified. 0 Term. Successfully / Unsuccessfully . • 0 Deft. to pay fine or complete hrs. Community Service or Serve days PBCJ. 0 Stip/Found: (violent)'liabitugl Off. 775.084 . Stip/Founds:SeZeal .Offensle?/ Sexual Predator 0 Stip/Found: P.R.R. SENTENCE: PBC31-441.71`) PRO- / DOC: Cts- jC 1 W/Credit for • • • Days / e_ ...,, crel It/ oeftto temain on sarpe reL•status pending sent. nc onset Co-Term w/cases . fiet_,/. .."' .x! :, ..' el' .1 • ' f • • • . • • 0 Execution of Sentence Stayed 0 Sentence Suspended 0 Time served as to CIS ie. Youthful Off C l Habitual Off 0 Min /Mend- as to $ ABOVE SENTENCE TO BE FOLLOWED By: 0 Probation. 0 Drug Off Prob Comm. Control t/ I 0 - S ICePage . - Set / Remains Set / Reset • Div" Rm — at AM/PM Set / Remains Set /Reset • Div Rm ..ar_ AM/PM • 0 Deft sign • 0 Def Co 0 ASA ' . O Prob 0 Jail 0 DJJ. 0 GAL Notified by mail by: Cl County Courthouse • . 0 Courtroom, Criminal Justice Bldg. • • • 205 N. Dixie, West Palm Beach. • 38844 State Road 80, Belle Glade• on O Bondsman • 1 ./ O Courtroom, entitle:II lustice Complex ' 3228 Gun Club Rd., West Palm Beach IF YOU ARE AMMONyin A COSANUTY WHO NEEDOANY A000111100A1RIN IN ORDER TO PARMCIFATE IN THIS PROCIIMM YOU All 8111121), AT NO COSTIO YOU, TO THE FROMM OF cemssrssysruce num career sow uessrtADACOORCINKIte DINE ACUMSTMONE Off= OF TOO O0Un PALM BEACH COMFY COW MIME, 201a WOE KOK FOI WESIFF/118EACK FL 33601: TELEPHONE (561) 3364163. VIMIN 2 WOR1ONO DAYS OF YOUR RECI3PT OF MS Pancarybu ARE MONO OR VOICE IMPAIRED. CALL 14034654M. Form 611 soap rev 3/02 EFTA00222687 Case 9:08-cv-80119-KAM Document.16-2 Entered on FLSD Docket 07/01/2008 P ge 4 of 4 0 • Th ." 0 DATE: 6 3 OS-. 7age 2 • • r , I CL/ TERM OF Prob / Sex Off / Drug Off C.C.9 C.C. II: AZ. — (mos yh-as tiers ___L _ O conc w/ O bonsec. w/ O Probation transferred to: SPECIAL CONDITIONS: - O Complete Originally Ordered Conditions . ' " . O Curfew: p m with the following exception. • • • , O Deft. to report to Prob.. Dept. immediately upon release , • • O Deft. not Jo have in care, custody; or control any.unlawful &illegal material, subst, device, or object. O Deft. to Immediately notify Prob. Officer if place of residence or job changes. • O Restitution CRO filed .. . . . . O Subject to all ordinary and special odnditions of Probation •' • • _..... . O Substance Abuse Eval. / PeycholdgiCal Eval: / Psychosexual Eval. within / by' a and deft. to successfullycomplete' recommended treatment " •' : •- • • • • • •' . CI Random DrUg/Alcohol Testing .. • O At Deit's Expense • ." CI Costs Waived 0 No Consumption/Possession of Alcohol or. Drugs or intoxicants without a Piescription. • O Attend .AA and/or NA Meetings per. Week: - , O Deft. not to frequent any place of business whose primary purpose is the sale of alcohol. ' . O Complete Community Senlice to be done at the rate of • Hrs..per Wk /Mo.(Min.). _ -___Hreof O License Revoked / Suspended for • . mos / • . Q Attend and successfully complete DUI' chool and 1 session of Victim impact Panel O No Contact / No Violent Contact / No Direct or: Indirect contact w/yictim(s) or others listed: .• • , . • . cl Nd Contact w/Minor Children w/o Adult'Supervision aware 0 thii case and the disposition: . O Cost of Bdpervision: $ . ‘: per month O Waived by Court. O Enter and Successfully Complete DOC Non-Becure.Bed Program and Any Recommended Aftercare. O Hold in Custody, release only to DOC Non-Secure Bed•Prograni Officer. O Enter and Successfully Complete PBSCILong / Short Track Drug Farm and-Any Roc: Aftercare. • . - O Forfeit Weapon / Money seized at the time of arrest to: O Enter and Complete: . O Anger Management Program " O Batterers Intervention Program . . 0 Theft Abatement Program: • O Other. CI Defendant may apply for Early Termination after ., provided all conds. are satisfied. O Serve • . .. days / months in P$C4,wittr credit for . days / months. j • / • A - // • Il . 'kill pa -_lioritnifrrot* . • . .: . c -, • fe . . . . — . --wiz-. ; -71?-4 ,,R.,, r 1/4-)V rdr.1 '1. -11--O"."7"er , . . , 1 1 e.:7 . : %,,s i ,.. • . • • a • • • . o . . • . . . a • . . . . . - • ' 0 O FORM 979 ter 3/02 EFTA00222688 Case 9:08-cv-80119-KAM Document 21 Entered on FLSD Docket 07:1672008 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA NO. 08-80119-CIV-MARRA/JOHNSON JANE DOE NO. 2, Plaintiff, 1. JEFFREY EPSTEIN, Defendant. ORDER DENYING MOTION TO SEAL THIS CAUSE comes before the Court on Defendant Jeffrey Epstein's Motion to File Ex Pane and Under Seal, filed July 10, 2008. Defendant seeks to file a Notice of Continued Pendency of Federal Criminal Action under seal.' The Court has carefully considered the motion and the record and is otherwise fully advised in the premises. As stated in the Local Rules for the Southern District of Florida, "proceedings in the United States District Court are public and Court filings are matters of public record." S.D. Fla. L.R. 5.4(A). It is well settled that the media and the public in general possess a common-law right to inspect and copy judicial records. See Nixon I Warner Communications, Inc., 435 U.S. 589, 597 (1978). "The right to inspect and copy records is not absolute, however. As with other forms of access, it may interfere with the administration of justice and hence may have to be curtailed." Graddick, 696 F.2d 796, 803 (11th Cir.1983). This right of access creates 'All documents filed conventionally shall henceforth be filed directly with the Office of the Clerk in West Palm Beach, Florida. The parties shall not file documents conventionally in any other division of the Southern District of Florida. 1 EFTA00222689 Case 9:08-cv-80119-KAM Document 21 Entered on FLSD Docket 07'162008 Page 2 of 3 a presumption in favor of openness of court records, which "must be balanced against any competing interest advanced." United Stalest Noriega, 752 F. Supp. 1037, 1040 (S.D. Fla.1990). For example, courts may look to see whether the records sought are for illegitimate purposes. 696 F.2d at 803. Likewise, the Court may consider whether "the press has already been permitted substantial access to the contents of the records." Id. In his motion to seal, Defendant has made no argument as to why his Notice of Continued Pendency of Federal Criminal Action should not be made available to the public. Defendant states only that he wishes "[t]o avoid disclosure of confidential material." (Def. Mot. 2.) The Court finds this justification insufficient to justify keeping this document (filed ex parte) under seal. The Court is supported in this conclusion by its decision in a similar case, In re: Jane Doe, No. 08-80736-CW (S.D. Fla. July 11, 2008), in which the Court unsealed, over the objection of the United States Attorney, documents containing similar information regarding Defendant's criminal plea agreement. Thus, any argument regarding confidentiality is vitiated by the fact that information regarding Defendant's criminal plea arrangement is already a matter of public record. See, e.g., Sally Apgar, Victims Object to Palm Beach Billionaire's Plea Deal in Underage Sex Case, S. Fla. Sun-Sentinel, July 12, 2008. Similarly, Defendant has not justified the necessity of filing his Notice ex parte. As such, Defendant's Motion to Seal shall be denied. Accordingly, it is ORDERED AND ADJUDGED that Defendant's Motion to File Ex Parte and Under Seal is DENIED. The Clerk shall UNSEAL docket entries 19 and 20 and make them available for public inspection through CM/ECF at the earliest possible time. Defendant is further ORDERED to serve a copy of his Notice on Plaintiff within five (5) days of the date of 2 EFTA00222690 Case 9:08-cv-80119-KAM Document 21 Entered on FLSD Docket 07/16/2008 Page 3 of 3 entry of this Order. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this le day of July, 2008. KENNETH A. MARRA United States District Judge Copies furnished to: all counsel of record 3 EFTA00222691 Case 9:08-cv-80-OSstO4108-DeaCifirlellit 2A of: CEntgred0BICEISDAAncfidefi07:1Ball98 Page 1 of 3 U.S. District Court Southern District of Florida (West Palm Beach) CIVIL DOCKET FOR CASE #: 9:08-cv-80119-KAM Internal Use Only Doe'. Epstein Assigned to: Judge Kenneth A. Marra Referred to: Magistrate Judge Linnea R. Johnson Case: 212S232-lithl Cause: 28:1391 Personal Injury Plaintiff Jane Doe No. 2 Defendant Jeffrey Epstein Date Filed: 02/06/2008 Jury Demand: Plaintiff Nature of Suit: 360 P.I.: Other Jurisdiction: Diversity represented by Adam D. Horowitz Herman &Mermelstein, P.A. 18205 Biscayne Blvd. Suite 2218 Miami, FL 33160 305-931-2200 Fax: 305-931-0877 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Jeffrey Marc Herman Herman &Mertnelstein 18205 Biscayne Boulevard Suite 2218 Miami, FL 33160 305-931-2200 Fax: 931-0877 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Stuart S. Mermelstein Herman &Mertnelstein 18205 Biscayne Boulevard Suite 2218 Miami, FL 33160 305-931-2200 Fax: 931-0877 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Jack Alan Goldberger Atterbury Goldberger &Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach, FL 33401-5012 561-659—8300 Fax: 835-8691 Email: [email protected] ATTORNEY TO BE NOTICED Michael Ross Tein Lewis Tein 3059 Grand Avenue Suite 340 EFTA00222692 Case 9:08-cv-80-OSsKA108-Eraelrleit 2Ae2of: CatliadethollIDIEIMEN07/11156138 Page 2 of 3 Coconut Grove, FL 33133 305-442-1101 Fax: 442-6744 Email: [email protected] ATTORNEY TO BE NOTICED Date Filed # Docket Text 02/06/2008 1 COMPLAINT against Jeffrey Epstein; Filing fee $ 350. Receipt#: 542215, filed by Jane Doe No.2.(1k) (Entered: 02/06/2008) 02/06/2008 2 Summons Issued as to Jeffrey Epstein. (1k) (Entered: 02/06/2008) 02/08/2008 I Order Requiring Counsel to Confer and Joint Scheduling Report.Signed by Judge Kenneth A. Marra on 2/8/08.(ir) (Entered: 02/08/2008) 05/22/2008 A AFFIDAVIT of Service for Summons and Complaint served on Jeffrey Epstein on May 7, 2008, filed by Jane Doe. (Herman, Jeffrey) (Entered: 05/22/2008) 05/22/2008 5 SUMMONS Returned Executed by Jane Doe. Jeffrey Epstein served on 5/7/2008, Answer due 5/27/2008. (1k) (Entered: 05/27/2008) 05/27/2008 6 NOTICE of Docket Correction and Instruction to Filer: reA Affidavit of Service filed by Jane Doe. Error: Wrong Event Selected; Correction=Redocketed as "Summons returned executed", D.E. 5 . Instruction to Filer=In the future please select "summons returned executed" as the proper Event. (1k) (Entered: 05/27/2008) 05/29/2008 1 Plaintiffs MOTION for Entry of Default by Clerk Against Defendant by Jane Doe. (Attachments: #_1, Exhibit A and B, #.2 Text of Proposed Order Default Ord)(Horowitz, Adam) (Entered: 05/29/2008) 06/06/2008 8 CLERK'S NOTICE Denying for Improper Service 7 Plaintiffs MOTION for Entry of Default by Clerk Against Defendant ( ) (Entered: 06/06/2008) 06/1 UMW 2 Plaintiffs MOTION to Compel Clerk to Enter Default Against Defendant, or Alternatively, for an Enlgargement of Time to Serve Process, and Incorporated Memorandum of Law by Jane Doe. Responses due by 6/30/2008 (Attachments: # .I. Exhibit A, #_2 Exhibit B)(Horowitz, Adam) (Entered: 06/11/2008) 06/13/2008 22 NOTICE of Attorney Appearance by Jack Alan Goldberger on behalf of Jeffrey Epstein (Goldberger, Jack) (Entered: 06/13/2008) 06/13/2008 a RESPONSE to Motion fel Plaintiffs MOTION to Compel Clerk to Enter Default Against Defendant, or Alternatively, for an Enlgargentent of Time to Serve Process, and Incorporated Memorandum of Law filed by Jeffrey Epstein. Replies due by 6/23/2008. (Attachments: #J. Affidavit for Richard Barnett)(Goldberger, Jack) (Entered: 06/13/2008) 06/20/2008 12 Defendant's MOTION to Stay by Jeffrey Epstein. Responses due by 7/10/2008 (Goldberger, Jack) (Entered: 06/20/2008) 06/20/2008 12 Defendant's MOTION for Extension of Time to File Answer or Otherwise Respond To Complaint by Jeffrey Epstein. (Goldberger, Jack) (Entered: 06/20/2008) 06/24/2008 14 MEMORANDUM in Support re_2 Plaintiffs MOTION to Compel Clerk to Enter Default Against Defendant, or Alternatively, for an Enlgargentem of Time to Serve Process, and Incorporated Memorandum of Law filed by Jane Doe. (Herman, Jeffrey) (Entered: 06/24/2008) 06/30/2008 II NOTICE by Jeffrey Epstein Of Filing Deposition (Attachments: #_1. Exhibit)(Goldberger, Jack) (Entered: 06/30/2008) 07/01/2008 16 NOTICE by Jeffrey Epstein Concerning Motion To Stay (DE 12] (Attachments: #_1. Exhibit A)(Goldberger, Jack) (Entered: 07/01/2008) EFTA00222693 Case 9:08-cv-801216s1MO8-difs8Ohleit 2AS2of: CalifloW31692DilikkEDT07/1366101)8 Page 3 of 3 07/08/2008 12 NOTICE of Attorney Appearance by Michael Ross Tein on behalf of Jeffrey Epstein (Tein, Michael) (Entered: 07/08/2008) 07/10/2008 18 Plaintiff's MOTION for Extension of Time to File Response as to 12 Defendant's MOTION to Stay by Jane Doe. (Attachments: CI, Text of Proposed I Order)(Horowitz, Adam) (Entered: 07/10/2008) 07/10/2008 19 Sealed Document. (yc) (Entered: 07/10/2008) 07/10/2008 20 Sealed Document. (yc) (Entered: 07/10/2008) 07/16/2008 21. ORDER denying motion to file Ex Parte and Under Seal. The clerk shall unseal DE 19 and 20 and make them available for inspection through CM/ECF at the earliest possible time. Signed by Judge Kenneth A. Marra on 7/16/08. (ir) (Entered: 07/16/2008) 07/16/2008 22, ORDER TO SHOW CAUSE why default should not be entered against Defendant. Show Cause Response due by 7/28/2008. Signed by Judge Kenneth A. Marra on 7/16/08. (ir) (Entered: 07/16/2008) EFTA00222694 Case 9:08-cv-80119-KAM Document 23 Entered on FLSD Docket 07,17'2008 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80119-MARRA-JOHNSON JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. FILED EX PARTE UNDER SEAL I- I 0 fV DEFENDANT'S MOTION TO FILE EX PARTE AND UNDER SEAL EFTA00222695 Case 9:08-cv-80119-KAM Document 23 Entered on FLSD Docket 07/17/2008 Page 2 of 4 Pursuant to S.D. Fla. L.R. 5.4, defendant Jeffrey Epstein hereby moves to file his Notice of Continued Pendency of Federal Criminal Action, as well as this motion, ex pane and under seal, stating as follows: 1. In support of his motion to stay [DE 12], defendant has herewith filed a Notice of Continued Pendency of Federal Criminal Action. 2. The Notice relates to a confidential agreement between the United States Attorney's Office for the Southern District of Florida and the defendant. 3. The information contained in the Notice is material to this Court's consideration of Epstein's motion to stay. 4. To avoid disclosure of confidential material, Epstein requests leave to file the Notice, and this motion, ex parte and under seal. 5. Pending a ruling from this Court, Epstein has not served this motion or the Notice on counsel for plaintiff: 2 EFTA00222696 . Case 9:08-cv-80119-KAM Document 23 Entered on FLSD Docket 07)17/2008 Page 3 of 4 WHEREFORE, defendant Jeffrey Epstein respectfully requests leave to file this motion and his Notice of Continued Pendency of Federal Criminal Action, ex parte and under seal. Respectfully submitted, LEWIS TEIN, P.L. 3059 Grand Avenue, Suite 340 Coconut Grove, Florida 33133 Tel: 305 442 1101 Fax: 305 442 6744 By: GUY A. LEWIS Fla. Bar No. 623740 [email protected] MICHAEL R. TEIN Fla. Bar No. 993522 [email protected] ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Florida 33401 Tel. 561 659 8300 Fax. 561 835 8691 By: JACK A. GOLDBERGER Fla. Bar No. 262013 [email protected] Attorneys for Defendant Jeffrey Epstein 3 EFTA00222697 Case 9:08-cv-80119-KAM Document 23 Entered on FLSD Docket 07/17/2008 Page 4 of 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that this motion, in accordance with S.D. Fla. L.R. 5.4, has not been served on opposing counsel and was filed under seal on July I0, 2008. Michael R. Tein 4 EFTA00222698 ,Case 9:08-cv-80119-KAM Document 24 Entered on FLSD Docket 07,17.2008 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80119-MARRA-JOHNSON JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. FILED EX PARTE UNDER SEAL EFTA00222699 .Case 9:08-cv-80119-KAM Document 24 Entered on FLSD Docket 071 7/2008 Page 2 of 4 NOTICE OF CONTINUED PENDENCY OF FEDERAL CRIMINAL ACTION Defendant Jeffrey Epstein hereby notifies the Court of the continued pendency of a federal criminal action against him, stating as follows: On June 30, 2008, after defendant Jeffrey Epstein filed his motion to stay IDE 121, he was sentenced in the state-court criminal case described in that motion (State of Florida v. Jeffrey Epstein, Case No. 2006 CF 09454 AXX, Fifteenth Judicial Circuit, Palm Beach County) (the "Florida Criminal Action"). As explained below, the parallel federal criminal action against him described in that motion (In re Grand Jury, No. FGJ 07-103(WPB), United States District Court for the Southern District of Florida) (the "Federal Criminal Action"), remains pending. On September 24, 2007, the United States Attorney's Office for the Southern District of Florida ("USAO"), represented by Assistant United States , and Mr. Epstein, entered into a deferred- prosecution agreement ("Agreement"), which the parties agreed to keep confidential. Prior to entering into that Agreement, idvised that she had already prepared a federal criminal indictment against Mr. Epstein in the Federal Criminal Action. Under the Agreement, beginning on the date Mr. Epstein began serving his sentence in the Florida Criminal Action, the USAO agreed to suspend its grand jury investigation in the Federal Criminal Action. The USAO, however, retains the 2 EFTA00222700 ,Case 9:08-cv-80119-KAM Document 24 Entered on FLSD Docket 07)1T2008 Page 3 of 4 right to reactivate the grand jury and indict Mr. Epstein should he breach any part of the Agreement during its term, which runs for 33 months, beginning on the date Mr. Epstein began serving his sentence in the Florida Criminal Action. Accordingly, the Federal Criminal Action will remain pending against Mr. Epstein for 33 months from June 30, 2008. Mr. Epstein will provide the Court with a copy of the confidential Agreement for its in-camera inspection at the Court's request. WHEREFORE, Defendant Jeffrey Epstein hereby notifies the Court of the continued pendency of the Federal Criminal Action. Respectfully submitted, LEWIS TEM, P.L. 3059 Grand Avenue, Suite 340 Coconut Grove, Florida 33133 Tel: 305 442 1101 Fax: 305 442 6744 By: IAN GUY A. LEWIS Fla. Bar No. 623740 [email protected] MICHAEL R. TEN Fla. Bar No. 993522 [email protected] 3 EFTA00222701 Case 9:08-cv-80119-KAM Document 24 Entered on FLSD Docket 07)17:2008 Page 4 of 4 ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Florida 33401 Tel. 561 659 8300 Fax. 561 835 8691 By: Jack A. Goldberger Fla. Bar No. 262013 [email protected] Attorneys for Defendant Jeffrey Epstein CERTIFICATE OF SERVICE I HEREBY CERTIFY that this motion, in accordance with S.D. Fla. L.R. 5.4, has not been served on opposing counsel and was filed under seal on July 10, 2008. Michael R. Tein 4 EFTA00222702 Case 9:08-cv-80119-KAM Document 33 Entered on FLSD Docket 08/0512008 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA NO. 08-80119-CIV-MARRA/JOHNSON JANE DOE NO. 2, Plaintiff, 1. JEFFREY EPSTEIN, Defendant. ORDER DENYING MOTION TO STAY THIS CAUSE comes before the Court on Defendant Jeffrey Epstein's Motion to Stay (DE 12), filed June 20, 2008. The motion is now fully briefed and is ripe for review. The Court has carefully considered the motion and is otherwise fully advised in the premises. Defendant Jeffrey Epstein ("Defendant") seeks a stay of this civil action under a federal statute which reads, in pertinent part, as follows: If, at any time that a cause of action for recovery of compensation for damage or injury to the person of a child exists, a criminal action is pending which arises out of the same occurrence and in which the child is the victim, the civil action shall be stayed until the end of all phases of the criminal action and any mention of the civil action during the criminal proceeding is prohibited. As used in this subsection, a criminal action is pending until its final adjudication in the trial court. 18 U.S.C. § 3509 (k). In his motion, Defendant cites a state case, Florida.. Epstein, No. 2006 1 EFTA00222703 Case 9:08-cv-80119-KAM Document 33 Entered on FLSD Docket 08/05/2008 Page 2 of 5 CF 09454AXX (Fla. Cir. Ct. 2008)' and a federal case, In re Grand Jury, No. FGJ 07-103(WPB) (S.D. Fla.), that arise out of the same occurrences and are pending and thus require a stay of this civil case. The federal "case," according to Defendant, involves a "deferred-prosecution" agreement whereby the U.S. Attorney agreed to suspend its investigation of Defendant while "retaining the right to reactivate the grand jury." (DE 24.) Defendant essentially reasons, because the U.S. Attorney could bring criminal charges against Defendant, that a criminal action is "pending." The Court rejects this definition of a "pending criminal action." When interpreting the text of a statute, the Court begins with the plain meaning of the text. In re Hedrick, 524 F.3d 1175, 1186 (11* Cir. 2008). If the plain meaning of a statute is clear, the Court should not deviate from that interpretation. Id. Pending is defined as "remaining undecided" and "awaiting decision." Blacks Law Dictionary (81h ed. 2004).2 Likewise, an 'As Defendant recognizes, the state court case was "finally adjudicated" and thus no longer pending as of June 30, 2008. (See DE 12.) 'Defendant attempts to argue that the fact that grand jury subpoenas are still "outstanding" and "not withdrawn" and that the grand jury will not be dismissed until Defendant completes his obligations under the state plea agreement means that a "criminal action" is "pending." (Def. Reply 4.) Defendant misunderstands the purpose of a grand jury. A grand jury, as Blackstone writes, is composed of citizens who "inquire, upon their oaths, whether there be sufficient cause to call upon the party to answer" the charge of criminal activity. Beavers" Henkel, 194 U.S. 73, 84 (1904) (quoting William Blackstone, 4 Commentaries *303). The grand jury's sole purpose is to inquire into whether there is probable cause to bring an individual before a tribunal to determine his guilt or innocence of an alleged crime. Id. The grand jury is simply an investigative body. See U.S.. Aired, 144, F.3d 1405, 1413 (11'h Cir. 1998). A "criminal action" is not instigated by the calling of a grand jury, because a grand jury is convened "to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person." U.S. I. Calandra, 414 U.S. 338, 344 (1974). An "action" is commenced against a person after the grand jury actually finds probable cause to make an individual answer specific charges and renders a bill of indictment against that individual. Until a grand jury's investigation is complete and there has been a determination by a lawful authority that probable cause exists, there can be no criminal action. 2 EFTA00222704 Case 9:08-cv-80119-KAM Document 33 Entered on FLSD Docket 08/05/2008 Page 3 of 5 "action" is defined as a "criminal judicial proceeding." Id. Because the U.S. Attorney has not filed an indictment or an information against Defendant, the Court fails to see how there is an undecided judicial proceeding in federal court against Defendant. Defendant argues that this statute should be read to include the definition of "criminal action" used in 18 U.S.C. § 1595(b)(2), which reads as follows: "In this subsection, a 'criminal action' includes investigation and prosecution and is pending until final adjudication in the trial court." Defendant argues that "Congress specifically intended that the term 'criminal action' would be applied extremely broadly" under § 1595, so Congress "took pains to ensure that courts would give it the broadest possible construction" and defined "criminal action" as including investigatory stages. (Def. Reply 4.) Defendants argue that the Court should borrow this definition. The Court disagrees. The Court believes that Congress's inclusion of this broader definition under § 1595 evinces Congressional intent to depart from the normal meaning of the term "criminal action."' This addition to the text suggests that Congress knows the plain meaning of the term "criminal action" and that Congress decided, under § 1595, that the definition of "criminal action" should be broader. In contrast, Congress could have made such an addition to § 3509 had it intended the mandatory stay provision to apply to pre-indictment investigations, but it did not. In other words, by not broadening the definition of "criminal action" § 3509, Congress intended that the term should only have its ordinary meaning: that an indictment or information has been filed naming a specific defendant. Instead, it seems clear that 'In fact, Congress made this intent clear by stating that this broader definition of a "criminal action" applied only "in this subsection." 3 EFTA00222705 Case 9:08-cv-80119-KAM Document 33 Entered on FLSD Docket 08;05'2008 Page 4 of 5 Congress intended that these two statutory provisions should each have a different scope. Defendant's argument of statutory construction fails. The single case cited by Defendant in support of his motion is not on point. In Doe Francis, No. 5:03CV260/MCR/WCS, 2005 WL 517847 (N.D. Fla. Feb. 10, 2005), the stay was entered because criminal charges had been filed against the defendant in a state court several months earlier (i.e., the defendants had been indicted by the state attorney). See Memorandum in Support of Motion to Stay Proceedings Pending Outcome of Parallel Criminal Proceedings at 3, Doe li Francis, No. 5:03CV260/MCR/WCS (N.D. Fla. Dec. 2, 2003). The Court agrees with Defendant that a stay under § 3509(k) is mandatory when a criminal action is pending; the Court simply disagrees that the "deferred-prosecution agreement" constitutes a pending criminal action. The Court also does not believe a discretionary stay is warranted. Defendant did not seek this relief in his motion; including such a request in the reply brief is inappropriate. Further, the Court sees no reason to delay this litigation for the next thirty-three months. After all, Defendant is in control of his own destiny - it is up to him (and him alone) whether the plea agreement reached with the State of Florida is breached. If Defendant does not breach the agreement, then he should have no concerns regarding his Fifth Amendment right against self-incrimination. The fact that the U.S. Attorney (or other law enforcement officials) may object to some discovery in these civil cases is not, in an of itself, a reason to stay the civil action. Any such issues shall be resolved as they arise in the course of this litigation. Accordingly, it is ORDERED AND ADJUDGED as follows: I Defendant's Motion to Stay (DE 12) is DENIED. 2. Defendant's Motion for Hearing (DE 27) is DENIED AS MOOT. 4 EFTA00222706 Case 9:08-cv-80119-KAM Document 33 Entered on FLSD Docket 08/05/2008 Page 5 of 5 3. Plaintiff's Motion for an Extension of Time to File Response (DE 18) is GRANTED NU NC PRO TUNC. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 4ih day of August, 2008. KENNETH A. MARRA United States District Judge Copies furnished to: all counsel of record 5 EFTA00222707 Case 9:08-cv-80119-KAM Document 34 Entered on FLSD Docket 08/0512008 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA NO. 08-80119-CIV-MARRA/JOHNSON JANE DOE NO. 2, Plaintiff, 1. JEFFREY EPSTEIN, Defendant. ORDER DENYING MOTION TO SEAL THIS CAUSE comes before the Court on Defendant Jeffrey Epstein's Motion to File Under Seal, filed July 28, 2008. Defendant seeks to file his reply to his Motion to Stay under seal.' The Court has carefully considered the motion and the record and is otherwise fully advised in the premises. As the Court has previously explained to the parties, the Local Rules for the Southern District of Florida state that "proceedings in the United States District Court are public and Court filings are matters of public record." S.D. Fla. L.R. 5.4(A). It is well settled that the media and the public in general possess a common-law right to inspect and copy judicial records. See Nixon I. Warner Communications, Inc., 435 U.S. 589, 597 (1978). "The right to inspect and copy records is not absolute, however. As with other forms of access, it may interfere with the administration of justice and hence may have to be curtailed." Graddick, 696 F.2d 'The parties are reminded that all documents filed conventionally (including those filed under seal) must be filed with the Clerk's Office in West Palm Beach, Florida. EFTA00222708 Case 9:08-cv-80119-KAM Document 34 Entered on FLSD Docket 08/05/2008 Page 2 of 2 796, 803 (11th Cir.1983). This right of access creates a presumption in favor of openness of court records, which "must be balanced against any competing interest advanced." United States" Noriega, 752 F. Supp. 1037, 1040 (S.D. Fla.1990). For example, courts may look to see whether the records sought are for illegitimate purposes. 696 F.2d at 803. Likewise, the Court may consider whether "the press has already been permitted substantial access to the contents of the records." Id. In his motion to seal, Defendant states that he seeks to file this document under seal "to comply with the confidentiality clause" in the agreement between Defendant and the U.S. Attorney cited in his brief. (Def. Mot. 2.) The Court is familiar with the U.S. Attorney's objections to unsealing any part of the agreement, see In re: Jane Doe, No. 08-80736-CIV (S.D. Fla. July 11, 2008). However, as the Court has previously held, the U.S. Attorney's objections do not outweigh the public interest in having access to court records. Further, the details of the agreement contained in Defendant's Reply brief have, in large part, already been unsealed and released to the public. The Court finds no justification to keep these documents under seal. Accordingly, it is ORDERED AND ADJUDGED that Defendant's Motion to File Under Seal is DENIED. The Clerk shall UNSEAL docket entries 29 and 30 and make them available for public inspection through CM/ECF at the earliest possible time. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 4ih day of August, 2008. KENNETH A. MARRA United States District Judge Copies furnished to: all counsel of record 2 EFTA00222709 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 1 of 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE NO. 2, vs. JEFFREY EPSTEIN. JANE DOE NO. 3, VS. JEFFREY EPSTEIN. / JANE DOE NO. 4, vs. JEFFREY EPSTEIN. JANE DOE NO. 5, vs. JEFFREY EPSTEIN. CASE NO.: 08-80119-CIV-KAM-L ---- DC JUL 2 8 2008 STEVEN CLERK M LAD U -EL-r-EyeAgr CASE NO.: 08-80232-CIV- -KAM-L CASE NO.: 08-80380-CIV-KAM-LRJ CASE NO.: 08-80381-CIV-KAM-LRJ FILED UNDER SEAL. EPSTEIN'S REPLY IN SUPPORT OF MOTION TO STAY This motion is filed under seal because the deferred-prosecution agreement between the United States Attorney's Office and Mr. Epstein. discussed herein, contains a confidentiality clause. A motion to seal has been filed contemporaneously. EFTA00222710 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 2 of 13 The Pendine Federal Criminal Action In 2006, a Florida state grand jury indicted Jeffrey Epstein on allegations similar to those in the instant actions (State of Florida v. Jeffrey Epstein, Case No. 2006 CF 09454, Fifteenth Judicial Circuit. Palm Beach County) (the "Florida Criminal Action")) Shortly thereafter, the United States Attorney's Office for the Southern District of Florida (the "USAO") began a federal grand-jury investigation into allegations arising out of the same incidents alleged in the instant actions (Grand Jury No. 07-103 (WPB),2 United States District Court for the Southern District of Florida) (the "Federal Criminal Action"). In September 2007, the USAO and Mr. Epstein entered into a highly unusual and unprecedented deferred-prosecution agreement (the "Agreement"), in which the USAO agreed to defer (not dismiss or close) the Federal Criminal Action on the condition that Mr. Epstein continue to comply with numerous obligations, the first of which was pleading guilty to certain state charges in the Florida Criminal Action. The Agreement itself uses the term "deferred" (rather than "dismissed" or "closed") to describe the status of the Federal Criminal Action: THEREFORE, on the authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida, prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida, provided that Epstein abides by the following conditions and the requirements of this Agreement . . . . Agreement, at 2. By no stretch did the USAO finalize, close, complete, dismiss or abandon the Federal Criminal Action. Indeed, as the lead federal prosecutor recently explained, the USAO merely Since the filing of the motion to stay, Mr. Epstein has pled guilty and been sentenced in the Florida Criminal Action. See Notice Concerning Motion to Stay (7/1/08). Accordingly, the Florida Criminal Action is no longer a basis for this stay. Epstein relies exclusively on the pending Federal Criminal Action for this motion and therefore here provides additional background information relating to that action. At the USAO's request, we wish to clarify a minor issue regarding the form of a citation in Epstein's initial memorandum supporting his motion to stay. That memorandum cites to the Federal Criminal Action as "thn Grand Jury No. 07.103 (WPB)," rather than citing it simply as "Grand Jury No. 107-103 (WPB)." See Motion to Stay, at 2 (6/20/08). Technically, a citation to in re Grand Jury No. 07-103 (WPB)" could be interpreted as referring to litigation arising from Epstein's motion to quash a subpoena previously issued by "Grand Jury No. 07-103 (WPB)," which subpoena, according to the terms of the deferred-prosecution agreement between Epstein and the USAO described infra at 1-3, the USAO is presently holding in abeyance. Accordingly, we hereby clarify that our citation on Page 2 of our motion to stay denoted the grand-jury investigation itself, not litigation arising from that grand-jury investigation. EFTA00222711 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 3 of 13 "agreed to defer federal prosecution in favor of prosecution by the State of Florida . ... See In re. Jane Doe, Case No. 08-80736-CIV-Marra/Johnson (S.D. Fla.) (DE 14), 5, attached hereto as Exhibit "A" (emphasis added). Under the Agreement, the USAO presently retains the continuing right to indict Mr. Epstein - - or to unseal "any" already-existing federal "charges" that may already have been handed up by the federal grand jury and sealed - - should he breach any of its provisions. Agreement, at 2. The period of the deferral continues until three months after Mr. Epstein completes service of his sentence in the Florida Criminal Action. Id. Indeed, the final three months of the Agreement's term constitute an extended period during which the USAO expressly retains the ability to evaluate whether Epstein committed any breaches of his numerous obligations under the Agreement while he was serving his state sentence, and, if it so determines, reserves the right to indict (or unseal an existing indictment against) Mr. Epstein - - even after he has completed serving his entire state sentence. The Agreement further provides that upon Epstein's execution of a plea agreement in the State Criminal Case, the Federal Criminal Action "will be suspended" and all pending grand-jury subpoenas "will be held in abeyance unless and until the defendant violates any term of this agreement." Agreement, at 5 (emphasis added). The Agreement directs the USAO and Epstein to "maintain their evidence, specifically evidence requested by or directly related to the grand jury subpoenas that have been issued," and to maintain such evidence "inviolate." Id. (emphasis added). It also expressly provides that the grand-jury subpoenas continue to remain "outstanding" until "the successful completion of the terms of this agreement." Id. (emphasis added). Finally, the Agreement provides that the USAO's declination of prosecution for certain enumerated offenses and dismissal of any existing (sealed) charges will not occur until 90 days following the completion of his state sentence: If the United States Attorney should determine, based on reliable evidence, that, during the period of the Agreement, Epstein willfully violated any of the conditions of this Agreement, then the United States Attorney may, within ninety (90) days following the expiration of the term of home confinement discussed below, provide Epstein with timely notice specifying the condition(s) of the Agreement that he has 2 EFTA00222712 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 4 of 13 violated, and shall initiate its prosecution on any offense within sixty (60) days' of [sic] giving notice of the violation. Any notice provided to Epstein pursuant to this paragraph shall be provided within 60 days of the United States learning of facts which may provide a basis for a determination of a breach of the Agreement. After timely fulfilling all the terms and conditions of the Agreement, no prosecution for the offenses set out on pages 1 and 2 of this Agreement, nor any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorney's Office, nor any offenses that arose from the Federal Grand Jury investigation will be instituted in this District, and the charges against Epstein, if any, will be dismissed. Agreement, at 2. Consistent with the Agreement and its position that the Federal Criminal Action continues to remain pending, the USAO recently sent letters to attorneys for people that the USAO has designated as -victims." In those letters, the USAO asked, "[1]f you do file a claim under 18 U.S.C. § 2255 and Mr. Epstein denies that your client is a victim of an enumerated offense, please provide notice of that denial to the undersigned [AUSA]." See Decl. of Exhs. 6 & 7, at 2 (July 9, 2008). The clear implication of the USAO's request (by which the USA() appears to involve itself in the instant litigation, despite advising the recipients that it cannot "take part in or otherwise assist in civil litigation," id.), is that the USAO believes that such denial might breach the Agreement. Accordingly, the Federal Criminal Action remains "pending." Discussion I. Section 3509(k) Applies to Investigations, Not Just Indictments. While there is no unsealed indicted criminal case against Mr. Epstein, the government's criminal investigation against him remains open. Section 3509(k) clearly applies to stay civil cases during the pendency, not only of indicted criminal cases, but also of yet-to-be-closed investigations. The term "criminal action" is not expressly defined in § 3509(k). It is defined, however, by a closely related statute. Title 18, U.S.C. § 1595 provides a civil remedy for "forced labor" and "sex trafficking" violations, but stays such actions "during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim." (A copy of § 1595 is 3 EFTA00222713 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 5 of 13 attached hereto as Exhibit "B"). In enacting § 1595, Congress specifically intended that the term "criminal action" would be applied extremely broadly. Accordingly, Congress took pains to ensure that courts would give it the broadest possible construction and, for that reason, specified in the definition provision that "criminal action" also "includes investigation." 18 U.S.C. § 1595(b)(2). The only reported decision addressing this provision interpreted it according to its plain language. See Ara v. Khan, No. CV 07-1251, 2007 WL 1726456,'2 (E.D.N.Y. June 14, 2007) (ordering "all proceedings in this case stayed pending the conclusion of the government's criminal investigation of the defendants and of any resulting criminal prosecution") (emphasis added). Given that the USAO's Agreement with Epstein indicates that: • the grand-jury's subpoenas remain "outstanding" (Agreement, at 5); • the subpoenas are "held in abeyance" (id.): • the subpoenas are not "withdrawn" (W.); • the parties must "maintain their evidence" (id.) (which would be entirely unnecessary if the investigation against Epstein were closed); • "any" existing "charges" will not "be dismissed" until after Epstein has "timely fulfill[ed] all the terms and conditions of the [A]greement" (id. at 2); and • "prosecution in this District . . . shall be deferred" (id.) (but not closed or dismissed), - - then. the only reasonable conclusion is that the Federal Criminal Action remains "pending.-3 The plaintiffs argue that a § 3509(k) stay would be "inconsistent with Mr. Epstein's Agreement with the U.S. Attorney" which the plaintiffs claim is reproduced in the lead 3 The ordinary meaning of the adjective "pending" is "(r]emaining undecided; awaiting decision . . .. Black's Law Dictionary 1154 (8th ed. 2004). The United States Court of Appeals for the Eleventh Circuit routinely relies on Black's Law Dictionary for the definition of statutory terms, including in criminal cases. See e.g., United States v. Young. 528 F.3d 1294, 1297 n.3 (11th Cir. 2008) (definitions of criminal "complaint" and "indictment"); United States v. Brown, 526 F.3d 691, 705 (11th Cir. 2008) (definition of "knowingly" in criminal statute). A Westlaw search revealed that in 2008 alone, the Eleventh Circuit has already published eight opinions relying on Black's Law Dictionary for definitions. See also, White v. Klitzkie, 281 F.3d 920, 928 (9th Cir. 2002) (relying on Black's Law Dictionary, in the context of a criminal case, for the definition of "pending" as "awaiting decision"); Swam v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000) (relying on Black's Law Dictionary for the definition of "pending," expressly because "'pendi,g' is not defined in the statute"). Any common-sense reading of the Agreement and the USAO's recent sworn construction of it, is consonant with the Federal Criminal Action's "remaining undecided" and "awaiting decision." See Unified Gov't of Athens-Clarke County v. Athens Newspapers, LLC, No. S07Gl133. _S.E.2d 2008 Wt. 2579238, '3 (Ga. June 30, 2008) (reviewing a public-records request against Georgia's "pending investigation" exception to its open-records law, and holding that "a seemingly inactive investigation which has not yet resulted in a prosecution logically "remains undecided," and is therefore -pending," until it -is concluded and the file closed') (emphasis added). 4 EFTA00222714 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 6 of 13 prosecutor's July 10 letter to their counsel (attached to Plaintiffs' responses as Exhibit A). Apparently, on July 10, the lead prosecutor sent a letter to the plaintiffs' lawyer stating that "[o]ne . . . condition to which Epstein has agreed" is that each plaintiff "will have the same rights to proceed under Section 2255 as she would have had, if Mr. Epstein had been tried federally and convicted of an enumerated offense." See Response Memo, at 5 & Ex. A, at 1-2 (emphasis added). This argument warrants absolutely no consideration, however, since the plaintiffs have not pled any claims under 18 U.S.C. § 2255. H. Section 3509(k) Applies Even After a Plaintiff Turns 18. Without citing to a single case, the plaintiffs argue that § 3509(k) does not apply to plaintiffs over the age of 18. An examination of the legislative history and related statutes shows that this unsupported argument must be rejected. The parallel stay provision in § 1595, discussed supra at 3-4, mandates, without exception, that any civil action brought under that section for violations of § 1591 (prohibiting transportation of minors for prostitution) "shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim." 18 U.S.C. § 1591(bX1). Whether the § 1595 plaintiff has turned 18 does not vitiate the efficacy of this mandatory stay. An example illustrates why the stay provided in § 3509(k) has the same broad scope as the stay provided in § 1591(b)(1). As discussed above, § 3509(k) stays any civil suit for injury to a minor, arising out of the same occurrence as a pending criminal action. One type of civil suit falling within § 3509(k)'s ambit is a suit seeking redress for a violation of 18 U.S.C. § 2423(a). Section 2423(a) - - just like § 1591 - - prohibits transportation of minors for prostitution. The elements of both statutes are identical. There would simply be no legitimate basis for Congress to differentiate between the consequences attached to violating these two sections. Thus, just as Congress mandated under § 1595(bX1) that civil discovery shall be stayed when there is an ongoing federal investigation under § 1591 (even after the victim turns 18), the identical treatment should apply under § 3509(k) to civil actions brought for the identical violation of § 2423(a). 5 EFTA00222715 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 7 of 13 Logic compels a rule requiring continued application of the § 3509(k) stay to a putative victim who has since turned 18. Consider again the example of § 2243(a). Assume that the USAO is investigating a § 2243(a) violator with two alleged victims: one who is now 17, and one who has turned 19. Assume further that both decide to sue the alleged offender while the USAO is still in the process of conducting its criminal investigation. Why would Congress prohibit the defendant from conducting civil discovery in the 17-year-old's lawsuit, but permit him to conduct full discovery in the 19-year-old's lawsuit, including taking the depositions of both the 19- and the 17-year-old, the federal investigating agents and all the grand-jury witnesses? This could not have been Congress' intent. The legislative history to a statute resembling § 1595 is also instructive. When Congress enacted 18 U.S.C. § 2255, it provided a civil remedy to any "minor . . . victim" of enumerated federal sex offenses. See Child Abuse Victims' Rights Act of 1986, Pub. L. No. 99-500, 100 Stat. 1783. § 703 (1986). In 2006, Congress amended the statute to clarify that the civil cause of action was available not just while the victim was a minor, but even after she or he turned IS. See Pub. 1. 109-248, 120 Stat. 650, § 707 (bX1XA) (amending § 2255 to permit suit by adults who were victims of enumerated federal offenses whcn they were minors, by deleting "Any minor who is [a victim]" and adding "Any person, who, while a minor, was [a victim]"). Meanwhile, the stay provisions of § 3509(k) remained unchanged. There is no reason to think that Congress would afford prosecutors protection for their investigations while the victims were minors, but completely eliminate those protections the moment one of the victims turned 18. The District Court for the Northern District of Florida confirmed this position and specifically rejected the plaintiffs' contrary argument. See Doe v. Francis. No. 5:03 CV 260, 2005 WI 950623, at "2 (N.D. Fla. 2005). The plaintiffs there argued that "the stay should be lifted due to the fact that the minor Plaintiffs have now reached the age of majority during the pendency of the state criminal case." Id. The court found this argument "unavailing . . . given the victims' minor status at the time of the events giving rise to the underlying claims." Id. (Interestingly. the arguments made by Jane Doe Nos. 2-5 in their oppositions to Epstein's motion to stay presently 6 EFTA00222716 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 8 of 13 pending before this Court, are literally lifted° from the plaintiffs' brief submitted to, and rejected by, the Northern District of New York in Francis.) The court specifically held that "because the victims were minors at the time of the Defendants' actions alleged in both [the civil and criminal] cases, § 3509(k) applies." Id. (emphasis added). The United States Department of Justice has itself emphatically embraced the interpretation of § 3509(k) as applying to stay all civil actions relating to sex offenses against minors, pending the completion of a parallel criminal action, without regard to whether the plaintiff has turned 18 during her civil lawsuit: The subsection should stay all pending civil actions in the wake of a criminal prosecution. Notably, in the context of 18 USC § 2255 ("civil remedy for personal injuries"), all civil actions are stayed pending the completion of a criminal action. See also 18 USC § 3509(k). H.R. Rep. 108-264(11), 108th Cong., 1st Sess. (2003), reprinted at 2003 WL 22272907, at •16-17 ("agency view" by the Department of Justice on bill later codified at 18 U.S.C. § 1595). The Department specifically argued to Congress in the clearest terms: "We believe that prosecutions should take priority over civil redress and that prosecutions should be complete prior to going forward with civil suits." Id. at 17 (emphasis added). Nowhere did the Department remotely suggest - - as the plaintiffs have implied - - that pending prosecutions warrant less protection (Le., should be "hinder[ed]") simply because a particular civil plaintiff happens to reach his or her 18th birthday. III. A Stay is Mandatory Despite Resulting "Delay" to Civil Lawsuits. Inherent in any § 3509(k) stay is delay to the progress (discovery, trial, appeal) of all related civil lawsuits. Congress recognized this in enacting the stay provision, which necessarily prioritized the interests of completing a criminal investigation and prosecution over the interests of a particular plaintiff in seeking personal pecuniary damages. Based on this reasoning, the Francis Compare Doe it Fronds, Case No. 5:03cv260-MCR-WCS (N.D. Ha.), Memorandum in Support of Plaintiffs' Motion to Reconsider Plaintiffs' Motion to Lift Stay and for Status Conference (DE 92, available on PACER), with Plaintiff's Memorandum of Law in Response to Defendant's Motion to Stay, filed in Case Nos. 08-cv-80119-KAM Woe No. Z DE 25), 08-cv-80232-KAM (Doe No. 3. DE 20), 08-cv-80380-KAM (Doe No. 4, DE 31), and 08-cv- 8038I-KAM (Due No. 5. DE 29). 7 EFTA00222717 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 9 of 13 court specifically refused to provide any relief to plaintiffs "simply because the state [criminal] matter is not progressing as fast as they would hope." 2005 WL 950623, at *2. The court made this determination despite the plaintiffs' complaints about the "frustrating delay" and that "the state criminal case 'has languished for almost two years with no end in sight,' finding that this "is a matter to be addressed in state [criminal] court." Id. Accordingly, the anticipated delay in this case, attendant to the term of the deferred-prosecution agreement, does not change the clear command of § 3509(k). According to their own pleadings, the plaintiffs waited between three and six years before filing these lawsuits, and so cannot rightfully claim prejudice from additional temporary delay. IV. Section 3509 Aside, a Discretionary Stay is Warranted. Even, arguendo, were this Court not to apply the mandate of § 3509, a discretionary stay should still be entered during the pendency of the Federal Criminal Action. SEC v. Healthsouth Corp.. 261 F. Supp. 2d 1298, 1326 (N.D. Ala. 2003) ("No question exists that this court has the power to stay a civil proceeding due to an active, parallel criminal investigation."). Other federal statutes support such a stay -- particularly when the criminal action may be adversely affected by the civil litigation. For example, under 18 U.S.C. § 2712(e)(1), "the court shall stay any action commenced [against the United States] if the court determines that civil discovery will adversely affect the ability of the Government to conduct a related investigation or prosecution of a related criminal case." Allowing these lawsuits to progress while Epstein remains subject to the Federal Criminal Action will prejudice him irrevocably and irreparably. As provided below, there are several adverse effects to allowing the civil litigation to proceed while the Federal Criminal Action remains pending. In these lawsuits, Epstein has a right to defend himself. In the Federal Criminal Action, Epstein has a right against self-incrimination' Without a stay, Epstein will be immediately forced to abandon one of these rights. ' Jane Does No. 2 and No. 3 allege that their claims arose niiIn or about 2004-2005;" Jane Does No. 4 and No. 5 allege that their claims arose -Ian or about 2002-2003.- Complaints, 1 8. 8 EFTA00222718 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 10 of 13 Should he choose his Fifth Amendment rights, he will expose himself to an adverse inference at the summary-judgment stage and at trial. See generally. Wehling v. Columbia Broad. Sys., 611 F.2d 1026, 1027 (5th Cir. 1980) (observing that "invocation of the privilege would be subject to the drawing of an adverse inference by the trier of fact"). On the other hand, should Epstein choose his right to defend himself in these lawsuits, the USAO will be able to use his responses at every stage of the discovery and trial process (e.g., his Answer, responses to document requests, responses to requests for admissions, sworn answers to interrogatories, answers to deposition questions, and trial testimony) to his detriment in the Federal Criminal Action.' In these lawsuits, even before civil discovery begins, under the Initial Disclosures required by Fed. R. Civ. P. 26 and S.D. Fla. Local Rule 26.1, Epstein "must" disclose the identities of all the witnesses he would call in his defense to the Federal Criminal Action (Rule 26(aXI XAXi)), copies of "all documents" he "may use to support [his] defenses" (Rule 26(aX1XA)(ii)), as well as the identity of "any" expert witness he "may use at trial," along with mandatory disclosure of "a written report" containing "a complete statement of all opinions the [expert] will express and the basis and reasons for them" (Rule 26(a)(2)(A) and (B)(i)). In contrast, in the pending Federal Criminal Action, which is governed exclusively by the Federal Rules of Criminal Procedure, the USAO would not be entitled to compel pm-trial production of any of this information. See Fed. R. Cr. P. 16(bX1)(A), (C), and 16(bX2); United States v. Argomaniz, 925 F.2d 1349, 1355-56 (11th Cir. 1991) (explaining act-of-production privilege). Thus, absent a stay of this civil action, the USAO would receive fundamentally unfair access to defense information and highly prejudicial advance insight into criminal defense The privilege applies in "instances where the witness has reasonable cause to apprehend danger" of criminal liability. Hoffman v. United States, 341 U.S. 479,486 (1951). This could give the USAO a tremendous advantage in prosecuting Epstein in the Federal Criminal Action. See Comment, Using Equitable Powers to Coordinate Parallel Civil and Criminal Actions, 98 Harv. L. Rev. 1023. 1030 (1985) (observing that '-the prosecutor may have access to detailed civil depositions of the accused witnesses, while the rules of criminal procedure bar the accused from deposing the prosecutor's witnesses"). 9 EFTA00222719 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 11 of 13 strategy. See Comment, 98 Harv. L. Rev. at 1030 ("To the extent that a prosecutor acquires evidence that was elicited from the accused in a parallel civil proceeding, the criminal process becomes less adversarial."). Without a stay in place, discovery will proceed, including against third parties. Mr. Epstein will have no alternative but to issue subpoenas seeking evidence from state and federal law-enforcement officers. For example, Epstein is clearly entitled to discover evidence of prior statements (including inconsistent statements) given by witnesses whom law-enforcement has previously interviewed. See. e.g., Cox v. Treadway. 75 F.3d 230, 239 (6th Cir. 1996) (holding that district court properly admitted testimony of prosecutor about prior inconsistent statements that witness made to the prosecutor). Likewise, Epstein may be entitled to discovery of relevant evidence that is in the present possession of the grand jury or other law-enforcement agencies. See, e.g., Simpson v. Hines, 729 F. Supp. 526, 527 (E.D. Tex. 1989) ("The grand jury has concluded its deliberations ... . The need for secrecy of these specific tapes no longer outweighs other concerns."); Golden Quality Ice Cream Co., Inc. v. Deerfield Specialty Papers. Inc., 87 F.R.D. 53, 59 (E.D. Pa. 1980) ("[W]here, as here, the grand jury has completed its work and all that is sought are those documents turned over to the grand jury by the corporations which are defendants in the civil case, the considerations . . . militating against disclosure are beside the point.") (citing Douglas Oil Co. of Calif. v. Petrol Stops Nw., 441 U.S. 211 (1979)). In response to such third-party subpoenas to law-enforcement witnesses, we anticipate that it will be the government, not Mr. Epstein, who will object to discovery in these civil cases, until the final conclusion of the Federal Criminal Action. Conclusion Because these lawsuits arise from the same allegations as the Federal Criminal Action, this Court should stay these cases until that criminal action is no longer pending. 10 EFTA00222720 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 12 of 13 Respectfully submitted, LEWIS TEIN, P.L. 3059 Grand Avenue, Suite 340 Coconut Grove, Florida 33133 Tel: 305 442 1101 Fax: 305 442 6744 By: GUY A. EWIS Fla. Bar No. 623740 lewis®Iewistein.com MICHAEL R. TEIN Fla. Bar No. 993522 [email protected] ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Florida 33401 Tel. 561 659 8300 Fax. 561 835 8691 By: Jack A. Goldberger Fla. Bar No. 262013 jgoldberger®agwpa.com Attorneys for Defendant Jay Epstein CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 711.A.3 While defense counsel admittedly did not confer with plaintiffs' counsel prior to filing the motion to stay, it was by no means in willful disregard of the Local Rule. Shortly after the filing of the motion and before plaintiffs filed their response memoranda suggesting that no conference had taken place, the parties did confer in a good faith and specific attempt to resolve the motion and were unable to do so, because plaintiffs' counsel would not agree to a stay. Accordingly, the brief delay in conducting the Rule 7.1 conference did not prejudice the plaintiffs at all or result in unnecessary judicial intervention. It is perhaps worth noting that, contrary to their Rule 7.1 certificate, plaintiffs did not confer prior to filing their motion to extend time to file their response memoranda (which extension defendant did not oppose anyway, including on the basis of failure to comply with Rule 7.1). Further information on the reasons the Rule 7.1 conference for the instant motion to stay was conducted after filing the motion to stay will be provided to the Court upon its request, preferably ex pane in order to avoid disclosure of privileged information. The defendant respectfully requests the opportunity to make such an ex pane disclosure in the event that the Court considers denying the motion under Local Rule 7.1.A.3. In any event, we apologize to the Court for non-compliance with the pre-filing requirement of the Rule, would have conferred even sooner had plaintiffs pointed the issue out immediately upon receipt of our motion, did confer with plaintiffs' counsel prior to filing the motion to seal this reply, and commit to precise compliance with the Rule for the remainder of this litigation. 14 . Jack oldberger, Michael 1 ein 11 EFTA00222721 Case 9:08-cv-80119-KAM Document 38 Entered on FLSD Docket 08/12/2008 Page 13 of 13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was served on July 28, 2008 by U.S. mail on all counsel named on the service list. 4444 Michael R. Tein SERVICE LIST Jeffrey M. Herman, Esq. Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Herman & Mermelstcin, P.A. 18205 Biscayne Boulevard, Suite 2218 Miami, Florida 33160 12 EFTA00222722 Case 9:08-cv-80119-KAM Document 40 Entered on FLSD Docket 09/04/2008 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80119-CIV-MARRA/JOHNSON JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN Defendant. MOTION TO DISMISS Defendant Jeffrey Epstein, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure and Rule 7.1(A) of the Local Rules for the Southern District of Florida, moves to dismiss Count I of plaintiffs complaint,' and states as follows: ' The time to answer the remaining allegations of the complaint is tolled pending the Court's ruling on the present motion. See Beaulieu v. Bd. of Trustees of Univ. of W. Fla., No. 3:07cv30/RV/EMT, 2007 WL 2020161, * 2 (N.D. Fla. July 9, 2007) (holding that defendant's partial motion to dismiss "automatically extends its time to answer . . . until after the court has ruled on [its] motion to dismiss"); Finnegan v. Univ. of Rochester Med. Ctr., 180 F.R.D. 247, 249 (W.D.N.Y. 1998) (concluding "that the filing of a motion that only addresses part of a complaint suspends the time to respond to the entire complaint, not just to the claims that are the subject of the motion"); Schwartz v. Berry College, Inc., No. Civ.A. 4:96CV338-HLM, 1997 WL 579166, *1 (N.D. Ga. July 3, 1997) (noting that there is significant case law to support the position that "when a defendant files a Rule 12(b) motion to dismiss, addressing only some of the claims contained in the plaintiff's complaint, the defendant is not required to file an answer until the court rules on the motion to dismiss"). EFTA00222723 Case 9:08-cv-80119-KAM Document 40 Entered on FLSD Docket 09/04/2008 Page 2 of 8 CASE NO.: 08-80119-CIV-MARRA/JOHNSON ALLEGATIONS IN PLAINTIFF'S COMPLAINT This action arises out of the alleged assault of the plaintiff. According to the allegations in her complaint, the plaintiff went to Mr. Epstein's house to give him "a massage for monetary compensation" (Compl. ¶ 12), where Mr. Epstein allegedly assaulted her "in violation of Chapter 800 of the Florida Statutes." (Comp!. ¶ 18). The plaintiff tries to assert a claim for sexual assault (Compl. ¶¶ 15-19.) This theory of liability, however, cannot be supported by the allegations in the complaint. In fact, even if everything in the complaint were true, recovery against Jeffrey Epstein, for Count I, under any formulation, is impossible under Florida law. Accordingly, this count must be dismissed. ARGUMENT A motion to dismiss under Fed. R. Civ. P. 12(b)(6) should be granted when a court cannot identify "each of the material elements necessary to sustain a recovery under some viable legal theory." Snow v. DirectTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006) (quoting Roe v. Aware Woman Ctr. For Choice, Inc., 253 F.3d 678, 684 (11th Cir. 2001)). Moreover, a court should dismiss a complaint "when, on the basis of a dispositive issue of law, no construction of the factual allegations will support a cause of action." Marshall County Bd. of Ethic. v. Marshal County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). "[T]o survive a 2 EFTA00222724 Case 9:08-cv-80119-KAM Document 40 Entered on FLED Docket 09/04/2008 Page 3 of 8 CASE NO.: 08-80119-CIV-MARRA/JOHNSON motion to dismiss, plaintiffs must do more than merely state legal conclusions; they are required to allege some specific factual bases for those conclusions . Holt v. Grist, No. 06-14617, 2007 WL 1156938, *2 (11th Cir. Apr. 19, 2007). As such, "conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Snow, 450 F.3d at 1320. I. Count I Fails to State a Cause of Action For Assault Recoenized by Florida Law. The plaintiff attempts to plead a cause of action against Mr. Epstein for "sexual assault" based on a "violation of Chapter 800 of the Florida Statutes"2 for the "lewd and lascivious acts committed by Epstein upon Jane Doe." (Compl. 18.) Plaintiff cannot assert a cause of action for "violation of Chapter 800, Florida Statutes" because there is no private right of action under that Chapter. See generally Am. Home Assurance Co. v. Plaza Materials Corp., 908 So. 2d 360, 374 (Fla. 2005) (observing that "not every statutory violation carries a civil remedy" (citing Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 852 (Fla. 2003)). See also, e.g., Miami Herald Publ'g Co. v. Ferre, 636 F. Supp. 970 (S.D. Fla. 1985) (King, C.J.) (holding that violation of Florida's criminal extortion statute does not give rise to a civil cause of action for damages). 2 Chapter 800, Florida Statutes, is entitled, "Lewdness; Indecent Exposure." 3 EFTA00222725 Case 9:08-cv-80119-KAM Document 40 Entered on FLSD Docket 09/04/2008 Page 4 of 8 CASE NO.: 08-80119-C1V-MARRA/JOHNSON Where a plaintiff brings a civil action pursuant to a criminal statute that provides no civil remedy, her complaint is properly dismissed for failure to state a cause of action. See Mantooth v. Richards, 557 So. 2d 646, 646 (Fla. 4th DCA 1990) (per curiam) (affirming dismissal of plaintiff's claim for parental kidnapping where "the mentioned statutes concern only criminal violations and do not afford a civil remedy") (citation omitted) (emphasis added). Even if Chapter 800 provided a civil remedy (which it does not) the statute does not apply to the plaintiff. The statute prohibits sexual activity with or lewd or lascivious offenses against "a person . . . less than 16 years of age." § 800.04, Fla. Stat. (2008) (emphasis added). By her own admission, the plaintiff was "approximately 16 years old." (Comp/. ¶ 8.) (emphasis added). Plainly, the plaintiff falls outside of the scope of the statute's protection. Accordingly, the plaintiff's claim for sexual assault against Mr. Epstein, pursuant to a violation of Chapter 800, Florida Statutes, must be dismissed. Should the Court look beyond the plain language of the plaintiff's complaint and construe Count I as a claim for common-law assault, that claim would also fail. As the court explained in Lay v. Kremer, 411 So. 2d 1347, 1349 (Fla. 1st DCA 1982), an assault is "an intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward another under such circumstances as to create a fear of imminent peril, coupled with the apparent 4 EFTA00222726 Case 9:08-cv-80119-KAM Document 40 Entered on FLSD Docket 09/04/2008 Page 5 of 8 CASE NO.: 08-80119-CIV-MARRA/JOHNSON present ability to effectuate the attempt." An assault thus requires "an affirmative act—a threat to use force, or the actual exertion of force." Sullivan v. Ad. Fed. Say. & Loan Assoc., 454 So. 2d 52, 54 (Fla. 4th DCA 1984) (affirming dismissal of assault claim where there was no affirmative act). In this case, there is no such affirmative act. The only thing that Mr. Epstein is alleged to have said to the plaintiff is "to take off her clothes" and "to give him a massage." (Compl. ¶ 12.) These allegations fall far short of an "offer of corporal injury by force." There are no allegations that Jane Doe was placed in any fear of imminent peril. See Gatto v. Pubblx Supermarket, Inc., 387 So. 2d 377, 379 (Fla. 3d DCA 1980) (holding that where there was no evidence to show that Gatto was placed in fear of imminent peril, there was no assault). In fact, the plaintiff does not even allege that Mr. Epstein touched her. Thus, there was no assault. Accordingly, because the plaintiff has failed to plead a cause of action for assault recognized in Florida, Count I against Mr. Epstein must be dismissed. Conclusion For the reasons set forth herein, Defendant Jeffrey Epstein respectfully requests that Count I of the plaintiff's complaint be dismissed. 5 EFTA00222727 Case 9:08-cv-80119-KAM Document 40 Entered on FLED Docket 09/04/2008 Page 6 of 8 CASE NO.: 08-80119-CIV-MARRA/JOHNSON Respectfully submitted, LEWIS TEIN, P.L. 3059 Grand Avenue, Suite 340 Coconut Grove, Florida 33133 Tel: 305 442 1101 Fax: 305 442 6744 By: /s/ Michael R. Tein GUY A. LEWIS Fla. Bar No. 623740 [email protected] MICHAEL R. TEIN Fla. Bar No. 993522 [email protected] ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Florida 33401 Tel. 561 659 8300 Fax. 561 835 8691 By: Jack A. Goldberger Fla. Bar No. 262013 [email protected] BURMAN, CRITTON, LUTTIER & COLEMAN, LLP 515 N. Flagler Drive, Suite 400 West Palm Beach, Florida 33401 Tel. 561 842 2820 Fax. 561 515 3148 6 EFTA00222728 Case 9:08-cv-80119-KAM Document 40 Entered on FLSD Docket 09/04/2008 Page 7 of 8 CASE NO.: 08-80119-CIV-MARRA/JOHNSON By: Robert D. Critton, Esq. Fla. Bar No. 224162 [email protected] Michael J. Pike, Esq. Fla. Bar No. 617296 [email protected] Attorneys for Defendant Jeffrey 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. /s/ Michael R. Tein Michael R. Tein CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 4, 2008, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this day on all individuals on the following service list via transmission of Notices of Electronic Filing generated by CM/ECF. /s/ Michael R. Tein Michael R. Tein 7 EFTA00222729 Case 9:08-cv-80119-KAM Document 40 Entered on FLSD Docket 09/04/2008 Page 8 of 8 CASE NO.: 08-80119-CIV-MARRA/JOHNSON Service List Jeffrey M. Herman, Esq. Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Herman & Mermelstein, P.A. 18205 Biscayne Blvd, Suite 2218 Miami, Florida 33160 Fax: 305 931 0877 8 EFTA00222730 Case 9:08-cv-80119-KAM Document 41 Entered on FLSD Docket 09/22/2008 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80119-MARRA/JOHNSON JANE DOE N