020.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
JANE DOE II ) CASE NO.: 09-80469-CIV-MARRA
)
Plaintiff, )
)
vs. )
)
JEFFREY EPSTEIN, )
and SARAH KELLEN, )
)
Defendants. )
/
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION
TO DEFENDANT EPSTEIN’S MOTION TO DISMISS
Plaintiff, JANE DOE II, through counsel, opposes Defendant’s RICHARD EPSTEIN’s
Motion to Dismiss. Defendant’s argument for a dismissal is premised on the following: 1)
Plaintiff is not permitted to file a claim under Florida law in a State of Florida court and then
file a federal claim in a federal court; 2) the remedies amendment to 18 U.S.C.§2255 are
not retroactive based on the dates Defendant EPSTEIN is alleged to have violated the
statute; 3) damages under §2255 cannot be obtained on a per incident basis, but must
be lumped together into a single recovery despite multiple violations occurring in temporally
distinct time frames, and therefore being different incidents; 4) Plaintiff has failed to state a
cause of action under §2255 because she has failed to “allege facts constituting a predicate
act”; and 5) Plaintiff has failed to state a cause of action for conspiracy to violate §2255.
I. LEGAL STANDARD
Defendant’s motion to dismiss must be denied unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of her claims that would entitle her to relief.
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Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court must accept all of plaintiff’s factual
allegations as true. Schuer v. Rhodes, 416 U.S. 232 (1974). Rule 8(a)(2) of the Federal
Rules of Civil Procedure provides that a complaint need only be “a short and plain statement
of the claim,” and as long as the pleadings “give defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests,” notice pleading has been satisfied. Conley v.
Gibson, 355 U.S. at 47. For a claim to state a cause of action however, facts, not labels and
conclusions must be asserted. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)
II. ARGUMENT
Point 1. Plaintiff has every right to proceed in State court for a Florida
common law claim, and in this Court for a federal claim.
Defendant EPSTEIN’s argument on this point is frivolous. Plaintiff’s claims in State
court are based on the common law of Florida, while the federal claims are based on a
federal statutory remedy.1
There are different facts that prove each claim and different
elements to the claims. Defendant seems to be arguing that the Plaintiff forfeits a right to a
federal remedy when she invokes a parallel, but independent and wholly distinct right to a
State remedy. That is simply not supported by any case or reasonable interpretation of any
case. The lynchpin of Defendant’s argument is that concurrent jurisdiction is available to hear
all claims in one forum; that is simply not the case, since the state claims are vastly different
than the federal statutory remedy. If the State claims had been filed in this Court, this Court
would not be obligated to exercise concurrent jurisdiction. It is well established that the
exercise of supplemental jurisdiction is discretionary with the court, and is properly rejected

1On a Motion to Dismiss, the Court is of course confined to the four corners of
the Complaint, and it is completely improper for the Defendant to attach as Exhibits
copies of a Complaint from a different proceeding, a fact that is not alleged anywhere in
the Complaint at issue before this Court. Nevertheless because the Defendant’s
argument on this issue is meritless, Plaintiff addresses it on the merits.
2
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under many circumstances.2
28 U.S.C. §1367, “supplemental jurisdiction,” provides that:
©) The district courts may decline to exercise supplemental jurisdiction over
a claim under subsection (a) if--
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.

Courts routinely “are obligated to raise and decide issues of subject matter jurisdiction
sua sponte any time it appears subject matter jurisdiction is absent.” Carias v. Lenox
Financial Mortgage Corporation, 2008 U.S. DIST. LEXIS 20345 *1 (N.D. Cal. March 5,
2008). In Carias, after granting summary judgment on the sole federal claim, the Court
remanded the State claims to state court, stating: “The Court declines to exercise pendent
jurisdiction over the state law claims and remands the action to state court. The Court finds
that the issues of economy, convenience, fairness and comity collectively weigh in favor of
remand. See Harrell, 934 F.2d at 205. Comity weighs especially strong, given that the
remaining claims are pure state law claims with no connection to federal law. Economy
also weighs in favor of remand as state courts are better equipped to efficiently handle state

2
In United Mine Workers v. Gibbs, 383 U.S. 715 (1966), a jury’s verdict
against a union based on State law claims was reversed, in part, because the federal
law claim failed. The Court noted that: “It has consistently been recognized that
pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies
in considerations of judicial economy, convenience and fairness to litigants; if these are
not present a federal court should hesitate to exercise jurisdiction over state claims,
even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U.S.
64.Needless decisions of state law [by a federal court] should be avoided both as a
matter of comity and to promote justice between the parties, by procuring for them a
surer-footed reading of applicable law.”
3
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law claims.” Id. at *5-6 (emphasis added). In Daimler Chrysler Corporation v. Charlotte Cuno,
547 U.S. 332, 351-52 (2006) the Supreme Court stated:
Gibbs held that federal-question jurisdiction over a claim may authorize a
federal court to exercise jurisdiction over state-law claims that may be viewed
as part of the same case because they "derive from a common nucleus of
operative fact" as the federal claim. 383 U.S., at 725, 86 S. Ct. 1130, 16 L.
Ed. 2d 218. Plaintiffs assume that Gibbs stands for the proposition that
federal jurisdiction extends to all claims sufficiently related to a claim within
Article III to be part of the same case, regardless of the nature of the
deficiency that would keep the former claims out of federal court if presented
on their own.
Our general approach to the application of Gibbs, however, has been
markedly more cautious. For example, as a matter of statutory construction
of the pertinent jurisdictional provisions, we refused to extend Gibbs to allow
claims to be asserted against nondiverse parties when jurisdiction was based
on diversity, see Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98
S. Ct. 2396, 57 L. Ed. 2d 274 (1978), and we refused to extend Gibbs to
authorize supplemental jurisdiction over claims that do not satisfy statutory
amount-in-controversy requirements, see Finley v. United States, 490 U.S.
545, 109 S. Ct. 2003, 104 L. Ed. 2d 593 (1989). As the Court explained just
last Term, "we have not . . . applied Gibbs' expansive interpretive approach
to other aspects of the jurisdictional statutes." Exxon Mobil Corp. v. Allapattah
Servs., 545 U.S. 546, 553, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005)
(applying 28 U.S.C. § 1367, enacted in 1990, to allow a federal court in a
diversity action to exercise supplemental jurisdiction over additional diverse
plaintiffs whose claims failed to meet the amount-in-controversy threshold).
What we have never done is apply the rationale of Gibbs to permit a
federal court to exercise supplemental jurisdiction over a claim that
does not itself satisfy those elements of the Article III inquiry, such as
constitutional standing, that "serve to identify those disputes which are
appropriately resolved through the judicial process." Whitmore, 495 U.S., at
155, 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135.
(Emphasis added)
Defendant’s argument that the Court should abstain from deciding the purely
federal issues in this case because there is an independent action under State law is absurd.
For this argument the Defendant relies on the Colorado River abstention doctrine, clearly
4
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inapplicable to this case. Only in “exceptional” circumstances, to promote conservation of
judicial resources and comprehensive disposition of litigation, would a federal court be
authorized to dismiss federal parallel3
claims that are initiated in state court. Colorado River
Water Conservation District v. United States, 424 U.S. 800 (1976). However, for the
Colorado River doctrine to even apply, there must be clear Congressional direction that
would preclude a federal court’s “virtually unflagging obligation ...to exercise federal
jurisdiction.” Id. at 817. In that case, the Supreme Court found that clear Congressional
direction from the McCarran Amendment, which the Court read to counsel against
“piecemeal litigation” concerning issues of water rights in a river system, favored abstention
Id. at 819. Even with this clear Congressional direction, if other factors had not favored
abstention, it may not have been ordered. Id. at 820.
Defendant EPSTEIN does not offer any evidence of any Congressional direction that
would direct this Court to abstain for claims under 18 U.S.C. §2255.4
Further, the Colorado
River doctrine only applies when federal courts are presented with “difficult questions of state

3The federal claims that are the subject matter of this action are not necessarily
parallel, although the incidents that gave rise to both the federal and state claims arise
from the same series of events. A Florida appellate court, for example, has refused to
apply principles of res judicata to bar State discrimination claims after the plaintiff lost
federal discrimination claims. Andujar v. National Property & Casualty Underwriters, 659
So. 2d 1214 (Fla. 4th DCA 1995) (adverse judgment against plaintiff in federal court for
federal discrimination claims did not bar subsequent action under state discrimination
laws). Here, although some of the elements for some of the claims may be similar, they
are sufficiently different that application of Andujar would preclude res judicata. To
determine whether a case is parallel, courts have looked to whether the same issues
are being litigated. Calvert Fire Ins. Co. v. American Mut. Reins. Co., 600 F.2d 1228,
1229, n. 1 (7th Cir. 1979); the issues in the State court and in this Court are not the
same.
4The Supreme Court said that Congressional direction is the “[m]ost important
factor.” Id. at 819.
5
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law bearing on policy problems of substantial public import whose importance transcends
the result in the case at bar.” Id. at 814 (emphasis added).5
Plaintiff in this case is not asking
this Court to adjudicate any claims under State law, nor do the claims presented “policy
problems of substantial public import.” This case involves claims against an individual
brought by another individual.
Just how narrow the circumstances under which abstention is appropriate under the
Colorado River doctrine, was demonstrated in the subsequent decision of the Supreme
Court in the case of Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1979). In Will, the
Supreme Court further narrowed the contours of when a federal court may abstain when
there is a parallel state action. In that case, a bare majority of one held upheld the District
Court’s decision to abstain, however, Justice Blackmun, in casting the deciding vote, did so
because he was of the opinion that the remedy sought (mandamus) was premature, since
the Appellate Court which had reversed the District Court, should have simply directed it to
reconsider the issue in light of the very limited circumstances under which abstention is
appropriate under the Colorado River doctrine. Id. at 668.
While the Will case recognizes that Colorado River abstention is a matter generally
left to the sound discretion of the District Court, the Eleventh Circuit has abolished its
application for claims predicated on 42 U.S.C.§1983. Alacare, Inc. v.Bagiano, 785 F. 2d 963
(11th Cir. 1986);See also: Tovar v. Billmeyer, 609 F. 2d 1291 (9th Cir. 1979) (rejecting
application of abstention in Section 1983 cases). Defendant cites no cases where the

5Colorado River has been applied where the plaintiff is pursuing federal civil
rights claims in state and federal courts, at the same time, which is not the case here.
See for example: Atchinson v. Nelson, 460 F. Supp. 1102 (D. Wyo. 1978).
6
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Colorado River doctrine has been applied to a federal claim under §2255. The cases cited
by Defendant EPSTEIN do not support a decision by this Court to abstain over what is a
purely federal claim. In American Bankers Ins. Co. v. First State Ins. Co., 891 F.2d 882 (11th
Cir. 1990), the District Court dismissed a purely state law claim for equitable subrogation
because there had been an earlier claim for declaratory relief in State Court; the Eleventh
Circuit reversed, concluding
...that no exceptional circumstances require dismissal of this case in
deference to the pending state court proceeding. If it were simply a question
of judicial economy, this litigation probably should proceed in the New York
court. A federal court cannot properly decline to exercise its statutory
jurisdiction, however, simply because judicial economy might be served by
deferring to a state court. Federal courts have a ‘virtually unflagging
obligation’ to exercise the jurisdiction given them.’ Colorado River, 424 U.S.
at 816, 96 S. Ct. at 1246. The interest in preserving federal jurisdiction
mandates that this action not be dismissed.
891 F.2d at 886.
Finally, Plaintiff has pled that Defendant EPSTEIN has made an agreement with the
United States Attorney’s Office to not contest the jurisdiction of this Court in exchange for
a avoiding prosecution under federal law for solicitation of minors for prostitution. Complaint,
¶15. Defendant EPSTEIN appears to be violating the agreement in contesting the jurisdiction
of this Court; at a minimum, at this stage of the pleadings he should be estopped from
contesting jurisdiction, since the allegations of ¶15 must be accepted as true.6

Point 2. The retroactivity of the amendments to §2255 is not appropriately
addressed in a motion to dismiss; but if the Court is so inclined to
consider it, there are insufficient facts pled in the Complaint to
render the 2006 amendments inapplicable to the case at bar.

6Plaintiff acknowledges that Defendant EPSTEIN’s agreement is between the
United States and he; however, the Plaintiff and the other victims of his sexual
predation may be considered third party beneficiaries to the agreement.
7
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The only issue properly before the Court is whether the Complaint states a cause of
action. ¶14 of the Complaint claims that the Plaintiff is entitled to the sum of $150,000 for
each event wherein Defendant EPSTEIN solicited the Plaintiff for prostitution. Each event
is set forth in the Complaint in ¶13.7
There are two related issues before the Court: 1) the
amount of minimum damages recoverable, $50,000, or $150,000; and, 2) whether the
Plaintiff can recover the minimum amount of damages for each temporally distinct event, or
whether she is restricted to a single recovery of the minimum damages recoverable under
the statute.
For the first issue, it is Plaintiff’s position that the matter cannot be decided on a
motion to dismiss, because what Defendant EPSTEIN is asking the Court to do is to declare,
prematurely, that when the Court instructs the jury, it instruct them that the minimum
recovery for the Plaintiff, if she proves the allegations, is either $50,000 (for the entire set of
events, Defendant EPSTEIN’s position) or $150,000 for each event (Plaintiff’s position); this
issue cannot be settled on a motion to dismiss, but is better reserved for the charging
conference at trial. On the second issue, as will be addressed later, under the plain language
of the statute, since Defendant EPSTEIN can be criminally prosecuted for each temporally
distinct event where he solicited this minor for prostitution, he can be subjected to the civil
remedy for damages for each such event, under either version of the statute. This second

7Plaintiff alleges that Defendant EPSTEIN, or others working on his behalf,
solicited the Plaintiff for prostitution, while she was a minor, on “6/16/03, 7/2/03, 4/9/04,
6/7/04, 7/30/04, 8/30/04, 10/9/04, 10/12/04, 10/30/04 and 11/9/04. In addition, Plaintiff
believes that there were as many as 10 to 20 other occasions during this time frame
that Defendant EPSTEIN solicited her and procured her to perform prostitution
services, all during the time that she was a minor.”
8
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issue would be better addressed on a summary judgment motion, and again, has nothing
to do with whether Plaintiff has pled a cause of action pursuant to Rule 12(b)(6), Fed. R. Civ.
P.
Plaintiff agrees with the general proposition that a new law that creates new
substantive rights, absent Congressional direction to the contrary, does not have retroactive
effect, but this is not a new law. §2255 was amended in 2006, to, inter alia, provide an
enhanced minimum recovery for damages caused by sexual predators such as Defendant
EPSTEIN. However, the change in the civil remedies available of a statute is a procedural,
not a substantive change in the law, and procedural changes to a statute are routinely
applied retroactively.8
Where substantive changes in a law are made by Congress, a slim
majority of the Supreme Court has declined retroactive application, even where the law was
ostensibly enacted to overrule a Court precedent that had itself, in the view of Congress,
overruled earlier Court precedents. Rivers v. Roadway Express, 511 U.S. 298, 308 (1994).9

8Defendant EPSTEIN also cites to United States v. Siegel, 153 F.3d 1256 (11
th
Cir. 1998), wherein, based on a defendant’s inability to pay restitution mandated by a
penal statute, the Court reversed a restitution order. An amendment to the statute
removed from consideration the defendant’s ability to pay restitution; the Court said
such an amendment could not be applied retroactively because the provision amounted
to a punishment under a penal statute, and would violate the ex post facto provision in
the U. S. Constitution, This case is clearly distinguished our case: the statute here is a
civil, not a penal remedy; the amendment to the statute modifies the minimal exposure
of the Defendant, but does not, as in the Siegel case, dispense with a substantive
defense to a restitution claim. United States v. Whiting, 165 F.3d 631 (8th Cir. 1999),
where a conviction for possession of child pornography was upheld, despite the fact
that the conduct of the defendant was arguably not specifically proscribed by statute at
the time the images were possessed; the Court held the legislative amendment was a
mere clarification of the prior legislation and not an ex post facto law.
9 Justice Scalia cited the statement of purpose of the Civil Rights Act of 1991, to
hold that, for example, the amendments specifically designed to overrule Patterson v.
McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363, should be
9
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Similarly, in the companion case of Landgraf v. Usi Film Prods., 511 U.S. 244, 275, n. 28
(1994), the Court declined to retroactively apply substantive changes to Title VII cases, but
noted that
While we have strictly construed the Ex Post Facto Clause to prohibit
application of new statutes creating or increasing punishments after the fact,
we have upheld intervening procedural changes even if application of the new
rule operated to a defendant's disadvantage in the particular case. See, e. g.,
Dobbert v. Florida, 432 U.S. 282, 293-294, 53 L. Ed. 2d 344, 97 S. Ct. 2290
(1977); see also Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30, 110
S. Ct. 2715 (1990); Beazell v. Ohio, 269 U.S. 167, 70 L. Ed. 216, 46 S. Ct. 68
(1925).

The question becomes then is an increase in the minimum guaranteed damages of
a civil remedy statute a substantive or a procedural change? A careful reading of Landsgraf
compels a finding that it is a procedural change only that must be given retroactive
application. Although the Landsgraf Court declined to give retroactive application to the
change most analogous to the one at issue here, it did so because it found the newly created
right to compensatory damages, previously not available under Title VII, and made available
by the Civil Rights Act of 1991, was in effect the creation of a new statute:
The provision of § 102(a)(1) authorizing the recovery of compensatory
damages is not easily classified. It does not make unlawful conduct that was
lawful when it occurred; as we have noted, supra, 511 U.S. at 252-255, § 102
only reaches discriminatory conduct already prohibited by Title VII. Concerns
about a lack of fair notice are further muted by the fact that such
discrimination was in many cases (although not this one) already subject to
monetary liability in the form of backpay. Nor could anyone seriously contend

applied prospectively only, based on a statutorily expressed Congressional intent to do
so: “The statute that was actually enacted in 1991 contains no comparable language.
Instead of a reference to ‘restoring’ pre-existing rights, its statement of purposes
describes the Act's function as ‘expanding the scope of relevant civil rights statutes in
order to provide adequate protection to victims of discrimination.’ 1991 Act, § 3(4), 105
Stat. 1071 (emphasis added).”
10
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that the compensatory damages provisions smack of a "retributive" or other
suspect legislative purpose. Section 102 reflects Congress' desire to afford
victims of discrimination more complete redress for violations of rules
established more than a generation ago in the Civil Rights Act of 1964. At
least with respect to its compensatory damages provisions, then, § 102 is not
in a category in which objections to retroactive application on grounds of
fairness have their greatest force.
Nonetheless, the new compensatory damages provision would operate
"retrospectively" if it were applied to conduct occurring before November 21,
1991. Unlike certain other forms of relief, compensatory damages are
quintessentially backward looking. Compensatory damages may be intended
less to sanction wrongdoers than to make victims whole, but they do so by a
mechanism that affects the liabilities of defendants. They do not
"compensate" by distributing funds from the public coffers, but by requiring
particular employers to pay for harms they caused. The introduction of a right
to compensatory damages is also the type of legal change that would have
an impact on private parties' planning. In this case, the event to which the new
damages provision relates is the discriminatory conduct of respondents' agent
John Williams; if applied here, that provision would attach an important new
legal burden to that conduct. The new damages remedy in § 102, we
conclude, is the kind of provision that does not apply to events antedating its
enactment in the absence of clear congressional intent.
In cases like this one, in which prior law afforded no relief, § 102 can be
seen as creating a new cause of action, and its impact on parties' rights
is especially pronounced. Section 102 confers a new right to monetary relief
on persons like petitioner who were victims of a hostile work environment but
were not constructively discharged, and the novel prospect of damages
liability for their employers. Because Title VII previously authorized recovery
of backpay in some cases, and because compensatory damages under §
102(a) are in addition to any backpay recoverable, the new provision also
resembles a statute increasing the amount of damages available under a
preestablished cause of action. Even under that view, however, the provision
would, if applied in cases arising before the Act's effective date, undoubtedly
impose on employers found liable a "new disability" in respect to past events.
See Society for Propagation of the Gospel, 22 F. Cas. at 767. The extent of
a party's liability, in the civil context as well as the criminal, is an important
legal consequence that cannot be ignored. Neither in Bradley itself, nor in
any case before or since in which Congress had not clearly spoken, have we
read a statute substantially increasing the monetary liability of a private party
to apply to conduct occurring before the statute's enactment. See Winfree v.
Northern Pacific R. Co., 227 U.S. 296, 301, 57 L. Ed. 518, 33 S. Ct. 273
(1913) (statute creating new federal cause of action for wrongful death
11
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inapplicable to case arising before enactment in absence of "explicit words"
or "clear implication"); United States Fidelity & Guaranty Co. v. United States
ex rel. Struthers Wells Co., 209 U.S. 306, 314-315 (1908) (construing statute
restricting subcontractors' rights to recover damages from prime contractors
as prospective in absence of "clear, strong and imperative" language from
Congress favoring retroactivity).
Id. at 281-86 [footnotes omitted].
Here, we have an increase in the potential damages remedy, but it was a damages
remedy that already existed at the time of Defendant EPSTEIN’s commission of the acts
against the minor. Hence, here, unlike Landsgraf, there was an existing civil remedy prior to
Defendant EPSTEIN’s commission of the acts against the minor Plaintiff, and there
continues to be such a remedy. Similar to our fact situation here, in Bradley v. School Bd.
of Richmond, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), a unanimous Court
applied an intervening statute authorizing an award of attorney's fees for parties seeking to
end school segregation, to a case pending on appeal at the time the statute was enacted.
Noting that the statute created an "additional basis or source for the Board's potential
obligation to pay attorneys' fees," 416 U.S. at 721, the Court found that the statute’s
retroactive application did not adversely affect the settled expectations of the parties. It is
difficult to imagine, particularly when the Court is contemplating a motion to dismiss, that
Defendant EPSTEIN had a “settled expectation” that if and when he was caught for
solicitation of minors for prostitution he would be liable for only a minimum of $50,000; it is
highly probable that he never believed he would be caught and he never knew of or
contemplated the civil penalties he would face under §2255. It is highly unlikely that
Defendant EPSTEIN made those calculations when he committed the crimes against this
or any other minor. Hence the rationale usually advanced for prospective application of
12
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statutory enactments is simply not present here, and the record is devoid of any factual
material that would support such a conclusion.10 As Justice Blackmun said in dissent in
Landsgraf, there is no vested right to break the law.11

Bottom line is, a motion to dismiss a claim is not the correct procedural mechanism
to determine the retroactivity of a statute. Landsgraf was decided after a trial on the merits
of the claim, wherein the trial court determined that although the sexual harassment was
serious, the employer, upon learning of it, had taken prompt remedial measures to correct
it, and the plaintiff did not have sufficient cause to warrant quitting her job. Id. at 247-48.
Rivers v. Roadway Express, 511 U.S. 298 (1994) was decided after a trial on the merits as
well, wherein the Court dismissed the 1981 claims based on the holding in Patterson, supra,
and exonerated the Defendant on the Title VII claims in a bench trial. On appeal, the plaintiff
sought relief under the 1991 Civil Rights Act amendments, which overruled Patterson. These

10 Although outside the pleadings and not appropriate for consideration on a
Motion to Dismiss, Defendant EPSTEIN has refused to answer any substantive
questions in the only two (2) depositions he has given in all these cases, including in
the State court case involving this Plaintiff. Accordingly, Plaintiff has not been able to
ascertain whether Defendant EPSTEIN had settled expectations about the limits of his
civil liability under §2255.
11“At no time within the last generation has an employer had a vested right to
engage in or to permit sexual harassment; ‘there is no such thing as a vested right to do
wrong.’ Freeborn v. Smith, 69 U.S. 160, 2 Wall. 160, 175, 17 L. Ed. 922 (1865). See
also 2 N. Singer, Sutherland on Statutory Construction § 41.04, p. 349 (4th rev. ed.
1986) (procedural and remedial statutes that do not take away vested rights are
presumed to apply to pending actions). Section 102 of the Act expands the remedies
available for acts of intentional discrimination, but does not alter the scope of the
employee's basic right to be free from discrimination or the employer's corresponding
legal duty. There is nothing unjust about holding an employer responsible for injuries
caused by conduct that has been illegal for almost 30 years.” Id. at 297. Similarly in this
case, soliciting minors for acts of prostitution, has been unlawful and the civil remedy
associated therewith has long preceded the acts in question.
13
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cases where in a much different procedural posture than the present case, and the law that
is applicable, including the raise of the minimum cap to $150,000, was in place well before
this suit was filed. Further, well before this suit was filed Defendant EPSTEIN entered into
a deferred prosecution agreement wherein he agreed to not contest the jurisdiction of this
Court and liability for claims under §2255, and Plaintiff has so alleged in ¶15 of the
Complaint. Plaintiff did not allege that Defendant EPSTEIN made this agreement with a
specification that his damages would be limited to a single claim of a minimum recovery
under the former statute, which was amended in 2006.
Point 3. 18 U.S.C. §2255 permits a claim for each temporally distinct event.
(a) In general. Any person who, while a minor, was a victim of a
violation of section 2241©), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260,
2421, 2422, or 2423 of this title [18 USCS § 2241©), 2242, 2243, 2251,
2251A, 2252, 2252A, 2260, 2421, 2422, or 2423] and who suffers personal
injury as a result of such violation, regardless of whether the injury occurred
while such person was a minor, may sue in any appropriate United States
District Court and shall recover the actual damages such person sustains and
the cost of the suit, including a reasonable attorney's fee. Any person as
described in the preceding sentence shall be deemed to have sustained
damages of no less than $ 150,000 in value.
The statute makes reference to “a violation” and “such violation,” both references
being in the singular. The statute does not say that if there are multiple violations, the
Plaintiff is limited to a single recovery for all. Such a construction would to the plain language
of the statute and common sense. Plaintiff has alleged that Defendant EPSTEIN violated the
statute on 10 confirmed occasions and up to 20 additional occasions. Each date for each
violation is different. There is no language in the statute that prohibits the Plaintiff from suing
for each violation, and the dicta set forth in Tilton v. Playboy Entertainment Group, Inc., 554
F. 3d 1371 (11th Cir. 2009), vaguely noting that the District Court awarded the Plaintiff “the
14
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minimum ‘actual damages’”, Id. at 1379, but there is no suggestion in this Opinion that the
Plaintiff was so limited, no reference to whether Plaintiff sought the relief being sought here
or that the events she complained of occurred on multiple occasions. In fact, it appears clear
from the Opinion that the pro se Defendant that Plaintiff prevailed against by default was
sued for a singular violation of recording the Plaintiff’s sexually oriented performance at a
Spring Break gathering. There is no indication that the conduct that was recorded by the
defaulted Defendant occurred on multiple occasions, as here.
Point 4. The Eleventh Circuit has foreclosed Defendant EPSTEIN’s
argument that for a violation of 18 U.S.C. 2422(b) to occur, he must
travel in interstate commerce; moreover, he has waived his right
to contest the jurisdiction of the Court according to the allegations
of the Complaint.
In United States v. Yost, 479 F.3d 815 (11th Cir. 2007), a defendant was convicted of
two counts of attempting to induce persons he believed were minors (they were government
agents posing as minors) to commit acts of prostitution under 18 U.S.C. §2422(b); he sought
to void his convictions on appeal because he didn’t get to the meeting place. The Court
rejected the argument, holding:
We are not convinced by Yost's argument that his failure to arrive at the
meeting place precludes a finding of a substantial step. Although this is the
first time we have been confronted with an attempt conviction under 18 U.S.C.
§ 2422(b) where travel is not involved, two other circuits have examined the
issue and determined travel is not necessary to sustain such a conviction. In
United States v. Bailey, 228 F.3d 637, 639-40 (6th Cir. 2000), the Sixth Circuit
affirmed a conviction under Section 2422(b) where the defendant sent e-mails
proposing oral sex and attempted to set up meetings with minor females,
albeit unsuccessfully. Similarly, in United States v. Thomas, 410 F.3d 1235,
1246 (10th Cir. 2005), the Tenth Circuit affirmed a Section 2422(b) attempt
conviction, despite a lack of evidence of travel. The Tenth Circuit stated:
“Thomas crossed the line from 'harmless banter' to inducement the moment
he began making arrangements to meet [the minor], notwithstanding the lack
of evidence that he traveled to the supposed meeting place." Id. Viewing the
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totality of Yost's actions, we likewise conclude Yost crossed the line from
mere "talk" to inducement. In addition to his online chats with Lynn, Yost
called Lynn on the telephone, posted pictures of his genitalia online, and
made arrangements to meet her. Despite a lack of evidence of travel, the
totality of Yost's actions convinces us that a reasonable jury could have found
Yost committed a substantial step.
Id. at 820.
As a practical matter, although not pled, the manner in which Defendant EPSTEIN
solicited Plaintiff to commit acts of prostitution as alleged was by telephone, by use of one
of his surrogate “assistants,” in this case Defendant SARAH KELLEN.12 Plaintiff would
receive a phone call on her cell phone (with a 561 exchange) from the cell phone of
Defendant KELLEN, who used a cell phone with a New York exchange (917 area code). In
United States v. Drury, 396 F.3d 1303 (11th Cir. 2005), the Court had to determine whether
a murder for hire conviction, where the defendant made calls from a Georgia land line to a
federal agent posing as a hit man on a cell phone that routed calls through Jacksonville, was
sufficient to establish use of interstate commerce for commission of the crime in question.
The Court affirmed the conviction, even where there was no intent to use an instrumentality
of interstate commerce, since the Defendant believed he was calling a number in Georgia.
In this case, the facts will demonstrate that for 99 per cent of the solicitations for
prostitution, Plaintiff was called by Defendant KELLER, who used her cell phone with a 917
exchange, a New York exchange, and presumably set up the event after being instructed by
Defendant EPSTEIN when and at what time the Plaintiff should appear at his home for the

12Ms. Kellen has been served in accordance with New York law after seeking to
avoid service with the assistance of a doorman at her building. She has thus far failed
to respond to the Complaint, and Plaintiff intends to move for a default against her next
week.
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sexual services he paid the Plaintiff for. Defendant KELLER resides and is believed to have
resided in New York at all times relevant to this suit, although she was present at Defendant
EPSTEIN’s home on some of the occasions when the Plaintiff appeared after being
summoned there. However, since she used a cellular phone, that is clearly a facility of
interstate commerce as contemplated by 18 U.S.C. 2422(b), which encompasses conduct
where “any facility or means of interstate commerce” is used.13 The Eleventh Circuit has
recognized that “[t]he telephone system is clearly a ‘facility of interstate . . . commerce.’”
United States v. Covington, 2009 U.S. App. LEXIS 8263 (11th Cir. April 22, 2009).
Defendant EPSTEIN is alleged in the Complaint to have waived the right to contest
the jurisdiction of this Court for claims under §2255, he should therefore be estopped from
asserting the failure to allege predicate acts, particularly when he has refused to answer any
questions based on his claimed right against self incrimination. However, if the Court is of
the view that these predicate facts must be alleged despite the agreement, then Plaintiff
requests leave to do so.
Point 5. Plaintiff has pled sufficient facts to establish a conspiracy to
violate §2255.
A civil conspiracy is an agreement by two or more persons, to do an unlawful act
or a lawful act by unlawful means, the doing of an overt act in furtherance of the

13 “(b) Whoever, using the mail or any facility or means of interstate or
foreign commerce, or within the special maritime and territorial jurisdiction of the
United States knowingly persuades, induces, entices, or coerces any individual who has
not attained the age of 18 years, to engage in prostitution or any sexual activity for
which any person can be charged with a criminal offense, or attempts to do so, shall be
fined under this title and imprisoned not less than 10 years or for life.” (Emphasis
added).
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conspiracy, resulting in damage to the Plaintiff. Walters v. Blankenship, 931 So. 2d 137
(Fla. 5th DCA 2006); Blatt v. Green, Horn, et al., 456 So. 2d 949 (Fla. 3rd DCA 1984).
To support her claim of a civil conspiracy, Plaintiff has pled the following:
9. Defendant EPSTEIN, in agreement with two (2) persons he
employed for this purpose, HALEY ROBSON and Defendant KELLEN,
conspired with these other two, and others, to solicit young women of the type
Defendant EPSTEIN preferred, blonde, attractive in appearance, and younger
than 18 years of age, to provide sexual gratification for him by engaging in
acts of prostitution.
10. Defendants EPSTEIN and KELLEN entered into a criminal
conspiracy to solicit young women for acts of prostitution, including the
Plaintiff, here in Palm Beach County.
11. From about June, 2003 until on or about
F ebr uary,2005,D efendant s
EPSTEIN and KELLEN persuaded, induced, or enticed the Plaintiff to come
to Defendant EPSTEIN’s home and provide Defendant EPSTEIN with
“massages” which escalated into sexual encounters between Defendant
EPSTEIN and the Plaintiff designed to fulfill his unnatural sexual desires for
young women or even younger girls who were minors. These acts included
Defendant EPSTEIN’s request that he wanted the encounter to be like a
“porn video.” Defendant EPSTEIN would script lines for the Plaintiff to say,
including calling out his name and requesting that he perform a certain sexual
act “harder,”while he touched the Plaintiff’s vagina with a vibrator or with his
fingers; alternately, he would masturbate in the presence of the Plaintiff after
demanding her to disrobe and walk in front of him in provocative sexual
poses. Defendant EPSTEIN would pay the Plaintiff a fee of $200 on each
occasion after he ejaculated while masturbating in the presence of the
Plaintiff.
Plaintiff has pled the elements of a civil conspiracy to violate §2255.
CONCLUSION
Defendant’s Motion to Dismiss must be denied. Plaintiff’s Complaint states a cause
of action pursuant to §2255. The Colorado River doctrine for abstention is not remotely
applicable to this case, which is grounded on a purely federal statutory cause of action. It is
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inappropriate for the Defendant to seek to limit his minimum statutory exposure on a Motion
to Dismiss, where there is no factual record or legislative history to determine the retroactivity
of an enhanced damages provision to a cause of action that existed at the time of the
wrongful acts. §2255 claims permit a Plaintiff to assert multiple claims for multiple violations
that occur in temporally distinct time frames, no differently than any claim, whether based
on tort or statutory law, that encompasses multiple events that occur at different times.
Defendant EPSTEIN has waived the right to contest the issue of whether his conduct
impacted interstate commerce; but Plaintiff is prepared to allege, if the Court deems it
necessary, how his employee and co-conspirator, Defendant KELLEN, used an
instrumentality of interstate commerce, her cell phone, to solicit the Plaintiff, then a minor,
on behalf of Defendant EPSTEIN who solicited her sexual services for money. Finally,
Plaintiff has pled all necessary elements to establish a civil conspiracy to violate §2255. For
these reasons, Defendant EPSTEIN’s Motion to Dismiss must be denied; however, if the
Court determines otherwise, Plaintiff respectfully requests leave to amend.

Respectfully submitted,
BY: s/ Isidro M. Garcia
ISIDRO M. GARCIA
Florida Bar No. 437883
GARCIA LAW FIRM, P.A.
224 Datura Street, Suite 900
West Palm Beach, FL 33401
Telephone:(561) 832-7732
Telecopier: (561) 832-7137
e-mail: isidrogarcia@bellsouth.net
Case 9:09-cv-80469-KAM Document 20 Entered on FLSD Docket 05/22/2009 Page 19 of 20

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished VIA
ECM TRANSMISSION to: Robert D. Critton, Esq. and Michael Pike, Esq., BURMAN
CRITTON LUTTIER & COLEMAN, 515 N. Drive, Suite 400, West Palm Beach, Florida
33401 this 22nd day of May, 2009.
BY:s/ Isidro M. Garcia
ISIDRO M. GARCIA
Case 9:09-cv-80469-KAM Document 20 Entered on FLSD Docket 05/22/2009 Page 20 of 20