EMS.LIDWAJIEACII915G€1.

EMS.LIDWAJIEACII915G€1. 2139 PALM REACH LAKES BLVD. WEST RUM BEACH. FLORIDA nat. sa< WEST RUM REACH. FLORIDA 3302 ATT0BREvs AT Girt vosALvs EN sue nauwes v.GREG:IRVBARNHART T,NAADEE BASS. • WPM J MR141 °Pull [ether la. L. omit,. JR' IMIDIDA S. FULMEA aMEIS VI GUSTAF SOK JR. skaf P HILL DAM K.KELLEY. a. wLumat KI WIS 43ARron LE ' Vaunt, A. NORTON moacK E WaiLtie EMMA° V RICO WM> J. SAL Ee ..10141 SCMOLA •CHMITIAN IX MACY 'JOHN nr CHRlinCelliM K.SOLID" BRIAN P. SitUVAN H. KAREN E.TThirt •t. Chao veminimA III SMELEHOLOIIRS 'DOWD Ctinint0 net eCKY 1 144PE WITHAM 41eASSACIOSETTS nilMaSEPPI ° NEW I-940110PC WW JERSEY ovnvcsva WASIMSTOU DC PARA, ESAI S VIVIA.f. AMA TEJECA ALYSSA A He OWASSO SAN& AI ONRESNE DAM W OLMCf€ .091 C Mown; peWISel LL ictaFP V/PCENT L. tC-ONAFO. JR. SAMS MIA LOA CHRISTOPHER J MATO R39EAT w motley NARK P. PORGY Mhttel1 Ma. RV! It SMITH SONNIES STAAI ARUBA &STEN May 03, 2010 SEARCY DE\NEY SCAROLA BARNHART IT-SHIPLEY. The Honorable David F. Crow Palm Beach County Courthouse 205 North Dixie Highway, Room 9.1215 West Palm Beach, FL 33401 Re: EPSTEIN V. ROTHSTEIN, et al. Case No. 502009CA040800X)COMMAG Our File No.: 291874 Dear Judge Crow: OTALLAHAISFEAEEKE: THE TOME. HOUSE 517 NORTH CALHOUN STREET TALLAHASSEE. EL 32301-1231 .3 BEN 1230 TAUAHASSEE. FLORIDA 32302 Hearing Date: 5/11/10 8:15.. Enclosed please find Defendant/Counterplaintiff, Bradley J. Edwards' Response and Supporting Legal Authorities in Opposition to Counterdefendant's Motion for Judgment on the Pleadings and/or Motion for Summary Judgment on Edwards' Counterclaim for Abuse of Process. cc: Jack A. Goldberger, Esq. Robert D. Critton, Jr., Esq. Gary M. Farmer, Esq. Marc S. Nurik, Esq. I. EFTA01076899 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XICOIMBACi JEFFREY EPSTEIN, Plaintiff; vs. SCOTT ROTHSTEIN, individually, liagsDLEY J. EDWARDS, individually, and > individually, Defendant, DEFENDANT/COUNTERPLAINTIFF'S RESPONSE AND SUPPORTING LEGAL AUTHORITIES IN OPPOSITION TO COUNTERDEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AND/OR MOTION FOR SUMMARY JUDGMENT ON EDWARDS' COUNTERCLAIM FOR ABUSE OF PROCESS Defendant/Counterplaintiff, Bradley J. Edwards, files this Response and Supporting Legal Authorities in Opposition to PlaintifftCounterdefendant, Jeffrey Epstein's Motion for Judgment on the Pleadings and/or Motion for Summary Judgment on Edwards' Counterclaim for Abuse of Process and states: Epstein is a convicted felon having entered into a plea agreement pursuant to which he effectively conceded his having engaged in illicit sexual activity with a large number of female children. (See Counterclaim at ¶4) A large number of his victims have filed civil suits, many of which remain pending and which potentially subject Epstein to large judgments for both compensatory and punitive damages. (Counterclaim at ¶5) Edwards' clients, including ■., are among those victims who continue the prosecution of their claims against Epstein. (Counterclaim at ¶7) Epstein has no substantive defense to these claims, as he has repeatedly invoked the Fifth Amendment and refused to answer any substantive questions regarding his EFTA01076900 Case No.: 502009CA040800,OOOCMBAG Defendsnt/Countetplaintiffs Response and Supporting Legal Authorities in Opposition to Counterdefendant's Motion for Judgment on the Pleadings and/or Motion for Summary Judgment Page 2 of 8 sexual exploitation of his minor victims. (Counterclaim at ¶6) Epstein has employed the extraordinary financial resources at his disposal to intimidate his victims into abandoning or compromising their legitimate claims. Id. Epstein has initiated claims against Edwards and IE. for the sole purpose of intimidating Edwards,... and others to abandon legitimate claims against Epstein or to coerce them into settling these claims for less than their value. (Counterclaim at ¶9) Epstein's Complaint alleges that Edwards was a knowing participant in a civil theft and criminal enterprise. (Counterclaim at ¶10) Epstein is well aware that there is no evidence to support these false assertions. Id. Epstein's actions in filing his baseless lawsuit are tantamount to extortion and form the basis for Edwards' Counterclaim for abuse of process. Judgment on the pleadings should be granted only where the Court concludes, based upon the pleadings alone, that the movant is clearly entitled to judgment as a matter of law, after taking every fact alleged by the non-moving party as true and all facts alleged by the moving party and denied by the non-moving party as false. See Harris v. Kearney, 786 So. 2d 1222, 1225 (Fla. 4th DCA 2001). In most instances, a motion for judgment on the pleadings will end up being much the same, in practice, as a motion to dismiss, although made after an answer is served.' The pleadings in this case establish a cause of action for abuse of process. A cause of action for abuse of process requires proof of the following elements: (1) the defendant made an illegal, improper, or perverted use of process; (2) the defendant had an ulterior motive or purpose I Epstein previously filed a Motion For More Definite Statement and/or Motion to Dismiss with respect to Edwards' Counterclaim. The motion was denied. While the prior motion did not raise the same grounds raised herein, it is worth noting that this Court previously determined that Counterplaintiff's Counterclaim could stand. EFTA01076901 Case No.: 502009CAO40800)OOOCMBAG Defendant/Counterplaintiffs Response and Supporting Legal Authorities in Opposition to Counterdefendant's Motion for Judgment on the Pleadings and/or Motion for Summary Judgment Page 3 of 8 in exercising the illegal, improper or perverted process; and (3) the plaintiff was injured as a result of defendant's action. Della-Donna v. Nova Univ., Inc., 512 So.2d 1051 (Ha. 4th DCA 1987). In an abuse of process action, process may mean an action that is initiated independently such as the commencement of a suit, or one initiated collaterally, such as an attachment or the filing of a counterclaim. Peckins v. Kaye, 443 So. 2d 1025, 1026 (Fla. 2d DCA 1984). The gravamen of the cause of action involves the use of process to accomplish some wrongful purpose for which it was not designed. Id., see also Scozari v. Barone, 546 So. 2d 750, 751-52 (Fla. 3d DCA 1989). The usual case involves some form of extortion. Scozari, 546 So. 2d at 751, citing Bothmann v. Harrington, 458 So. 2d 1163, 1169 (Ha. 3d DCA 1984). The allegations contained in Edwards' Counterclaim, which must be taken as true for purposes of deciding a motion for judgment on the pleadings, establish these necessary elements. The Counterclaim alleges that Epstein has commenced a lawsuit against Edwards for the sole purpose of attempting to intimidate Edwards and his clients, including MI, into either abandoning or settling legitimate claims for less than their just and reasonable value. (See Counterclaim at I 9 and 11) The Counterclaim also alleges that Epstein's Complaint has no basis in law or fact and that Edwards has been injured as a result. (Counterclaim at 'tfl 10 and 12) Edwards acknowledges that there is no abuse of process when the process is used to accomplish the result for which it was intended, regardless of an incidental or concurrent motive of spite or ulterior purpose, such as harassment. Scozari, 546 So. 2d at 751. However, in this case, it is alleged that the claims against Edwards for participating in a civil theft and criminal enterprise have no factual basis or legal merit whatsoever (i.e. Epstein's lawsuit was not filed to EFTA01076902 Case No.: 502009CA040800XX)ONBAG Defendant/Counterplaintiffs Response and Supporting Legal Authorities in Opposition to Counterdefendanfs Motion for Judgment on the Pleadings and/or Motion for Summary Judgment Page 4 of 8 accomplish the result intended (to either prevail or settle a meritorious claim). Indeed, Epstein completely ignored the statutory requirement for written notice prior to the initiation of a civil theft claim. (Counterclaim at ¶10) This is one manner in which the cases cited by Epstein are distinguishable. Additionally, many of the cases cited by Epstein note that the mere filing a complaint with an ulterior motive of harassment will not alone constitute abuse of process. However, Counterplaintiff's allegations involve more than mere harassment, they involve allegations of an attempt by Epstein to coerce Edwards into compromising the legitimate claims his clients have against Epstein for molestation. Even the cases cited by the Counterdefendant recognize that allegations of a coercive or collateral effect, like the kind set forth in Edwards' counterclaim, will be sufficient. For example, in Miami Herald Publishing Co. v. Ferre, 636 F.Supp. 970 Fla. 1985), the Court notes that an improper motive is not sufficient and explains that what is needed is an allegation of a collateral, coercive effect. Quoting McMurray v. U-Haul Co., 425 So. 2d 1208, 1209 n.1 (Fla. 4°' DCA 1983), the Ferre Court states that: An abuse of process arises only when there has been a perversion of court processes to accomplish some end which the process was not intended by law to accomplish, or which compels the party against whom it has been used to do some collateral thing which he could not legally and regularly be compelled to do. The case of Scozari, supra is instructive. In Scozari an attorney was sued for abuse of process after filing an action to impose an equitable lien and lis pendens against the home of his client's former live-in boyfriend who had left the state with the couple's child. 546 So. 2d at 751. The Third District held that summary judgment should not have been entered where the lawyer's EFTA01076903 Case No.: 502009CA040800X5OOCMBAG Defendant/Counteiplaintiffs Response and Supporting Legal Authorities in Opposition to CounterdefendanEs Motion for Judgment on the Pleadings and/or Motion for Summary Judgment Page 5 of 8 own testimony indicated that he filed the action at least in part as a bargaining chip. The Court noted: If there was a reasonable basis in law and fact to initiate the judicial proceedings, then these processes were justified even though they may have served some other collateral purpose. However, if there was no reasonable basis in law and fact to bring the action to impress a lien on property, and this was done without any reasonable justification under the law and to force or compel the appellant to resolve some custody dispute, induce the appellant to pay money, or tie up the appellant's property, then there has been an abuse of process. (emphasis added). Id. at 752. Likewise, the counterclaim in this case alleges that Epstein filed this action with no reasonable basis in law or fact in order to force or compel Edwards to resolve other pending cases against Epstein. See also, Bothmann, supra, 458 So. 24 at 1169, n 8 (noting that in an abuse of process claim, the improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or club). Based upon the foregoing authorities, the pleadings in this matter set forth a cause of action for abuse of process and Epstein's Motion for Judgment on the Pleadings must be denied. Epstein has also moved for summary judgment on Edwards' abuse of process claim. It is axiomatic that summary judgment may not be granted unless the moving party is able to show that no genuine issues of material fact exist. Payne v. Cuae Gardens Property Owners Ass 'n, Inc., 837 So. 2d 458, 461 (Fla. 3d DCA 2002). Epstein has failed to establish an absence of the disputed issues of fact created by the pleadings. Furthermore, summary judgment is premature because discovery is not complete. Epstein just answered the counterclaim on March 15, 2010. Where discovery is not complete, the facts are not sufficiently developed to enable the trial court EFTA01076904 Case No.: 502009CA0408000DOGMBAG Defendant/Counterplaintiffs Response and Supporting Legal Authorities in Opposition to C.ounterdefendanrs Motion for Judgment on the Pleadings and/or Motion for Summary Judgment Page 6 of 8 to determine whether genuine issues of material facts exist. Id, see also Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987). As the court noted in Payne, supra, 837 So.2d at 461: Where discovery is not complete the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist See Singer v. Star 510 So.2d 637, 639 (Fla. 4th DCA 1987). Thus where discovery is still pending the entry of summary judgment is premature. See Smith v. Smith, 734 So.2d 1142, 1144 (Fla. 5th DCA 1999X"Parties to lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure including the taking of depositions and it is reversible error to enter summary judgment when discovery is in progress and the deposition of party is pending."); Henderson Reyes 702 So.2d 616, 616 (Fla. 3d DCA 1997)(reversing the entry of Summary Judgment where depositions had not been completed and request for the production of documents was outstanding); Collazo v. Hupert 693 So.2d 631, 631 (Fla. 3d DCA 1997)(holding that a trial court should not entertain motion for summary judgment while discovery is still pending); Spradley v. Stick 622 So.2d 610, 613 (Fla. 1st DCA 1993). See also, Brandauer v. Publix Supermarkets, Inc., 657 So. 2d 932 (Fla. 2nd DCA 1995)(abuse of discretion to grant summary judgment where opposing party has not had an opportunity to complete discovery). Wherefore, the Defendant/Counterplaintiff, Bradley I Edwards respectfully requests this Court to enter an Order denying Plaintiff/Counterdefendant, Jeffrey Epstein's Motion for Judgment on the Pleadings and/or Motion for Summary Judgment on Edwards' Counterclaim for Abuse of Process. EFTA01076905 Case No.: 502009CA040800XXXXMBAO Defendant/Counterplaintiffs Response and Supporting Legal Authorities in Opposition to Counterdefendant's Motion for Judgment on the Pleadings ancVor Motion for Summary Judgment Page 7 of 8 I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to all counsel on the attached list, this .34- day of 20 Ws. Jack Flo No.: 169440 S Denney Scarola Barnhart & Shipley]." Palm Beach Lakes Boulevard Ida 33409 Attorneys for Plaintiffs) EFTA01076906 Case No.: 502009CA040800)OOO(MBAG Defendant/Countetplaintiffs Response and Supporting Legal Authorities in Opposition to Counterdefendant's Motion for Judgment on the Pleadings and/or Motion for Summary Judgment Page 8 of 8 COUNSEL LIST Jack A. Goldberger, Esquire Atterbury, Goldberger & Weiss, 250 Australian Avenue South, Suite 1400 h L 33401 Attorneys for Jeffrey Epstein Robert D. Critton, Jr., Esquire Burman, Critton, Luther & Coleman LLP 303 Banyan Boulevard, Suite 400 lm Beach, FL 33401 Attorneys for Jeffrey Epstein Gary M. Farmer, Esq. Fanner, Jaffe, Weissing, et al 425 N. Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Attorneys for Defendant, Law Offices of Marc S. Nurik One East Broward Boulevard, Suite 700 Fort Lauderdale, FL 33301 Counsel for Scott Rothstein EFTA01076907