031.pdf

Case 9:09-cv-80469-KAM Document 31 Entered on FLSD Docket 06/01/2009 Page 1 of 11
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-CIV- 80469 – MARRA/JOHNSON
JANE DOE II,
Plaintiff,
v.
JEFFREY EPSTEIN,
Defendant.
_____________________________________/
DEFENDANT EPSTEIN’S REPLY TO & MOTION TO STRIKE PORTIONS OF PLAINTIFF’S
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
Defendant, JEFFREY EPSTEIN, (“EPSTEIN”), by and through his undersigned
attorneys, replies to and moves to strike Point 4 of Plaintiff’s Memorandum Of Law In
Opposition To Defendant Epstein’s Motion To Dismiss, dated May 22, 2009, (“MOL”).
Accordingly, Defendant states:
I. Legal Standard (pp. 1-2 of Plaintiff’s MOL)
Plaintiff’s reliance on Conley v. Gibson, 355 U.S. 41, 45-46 (1957), as the Rule
12(b)(6) pleading standard is misplaced. As discussed in Defendant’s motion to
dismiss, (pp. 16 – 17), the standard as detailed in Bell Atlantic Corp. V. Twombly, 127
S.Ct. 1955 (2007), is now the applicable standard, not Conley. Although the complaint
need not provide detailed factual allegations, the basis for relief in the complaint must
state “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, at 1965. Further, “[f]actual allegations must be
enough to raise a right to relief above the speculative level ... on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Id. The United States
Supreme Court very recently made clear in Ashcroft v. Iqbal, No. 07-1015 (U.S. May 18,
2009)(slip copy op. at 20), that Twombly expounded the pleading standard for “all civil
actions” and not just pleadings made in the context of an antitrust dispute. Significantly,
the Supreme Court in Twombly abrogated the often cited observation from Conley that
“a complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Id, (abrogating and quoting Conley, 355 U.S. 41, 45-46, 78
S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). The Supreme Court rejected the notion that “a
wholly conclusory statement of claim [can] survive a motion to dismiss whenever the
pleadings le[ave] open the possibility that a plaintiff might later establish some ‘set of
[undisclosed] facts’ to support recovery.” Id. See also Berry v. Budget Rent A Car
Systems, Inc., 497 F.Supp.2d 1361, 1364 (S.D. Fla. 2007)(“... pursuant to Twombly, to
survive a motion to dismiss, a complaint must now contain factual allegations which are
‘enough to raise a right to relief above the speculative level, on the assumption that all
the allegations in the complaint are true.’”).
II. ARGUMENT
Point 1. There is already pending a previously filed state action arising from the
same factual allegations requiring dismissal of the federal action. (MOL, pp. 2 –
7).
First and foremost, contrary to Plaintiff’s assertion that Defendant’s argument
regarding jurisdiction is “frivolous” is without basis. As discussed in Defendant’s motion,
Plaintiff chose to file a prior action based on the identical underlying facts in state court.
It makes no sense for two actions – involving the same parties, witnesses, evidence,
etc., to proceed separately in two separate forums. Plaintiff cites to no case law to
counter and does not appear to directly dispute Defendant’s position that the state court
would have concurrent jurisdiction over the claim brought pursuant to 18 U.S.C. §2255.
Secondly, Plaintiff’s assertion, (MOL, p.2, fn. 1), that it is somehow improper to
attach a copy of this same Plaintiff’s Complaint from the state court proceeding in
support of Defendant’s motion is ridiculous. It is completely proper and in essence
required of any party to give notice to a court of a related pending proceeding. (See for
example, Loc. Gen. Rule 3.8 (S.D. Fla. 2009).1 The fact that there does exists a
previously filed action by Plaintiff against Defendant is directly relevant to this Court’s
decision of whether or not to exercise jurisdiction over the §2255 claim when there
exists a previously filed proceeding in which the claim might also be brought. Needless
to say, whether or not a Court exercises jurisdiction over a matter is a critical issue.
Finally, Plaintiff completely mischaracterizes what she herself alleged in
paragraph 15 of her Complaint. In her MOL, p. 7, Plaintiff falsely asserts that in par. 15
she “pled that Defendant made an agreement with the United States Attorney’s Office to
not contest the jurisdiction of this Court in exchange for avoiding prosecution under
federal law for solicitation of minors for prostitution.” What is actually alleged in par. 15
is the following: “Defendant EPSTEIN has made an agreement with the United
States Attorney’s Office to not contest liability for claims brought exclusively
pursuant to 18 U.S.C. §2255, in exchange for avoiding federal prosecution under
18 U.S.C. §2422(b), which provides a sentence of 10 years for each violation of the
law.” (See also p. 14 of MOL, where Plaintiff again misrepresents what is actually
alleged in her Complaint). Not only does Plaintiff misrepresent what is alleged in her
complaint, but she also ignores the fact that she chose to bring claims (in the first filed
state court action) in addition to the 18 U.S.C. §2255 claim. Thus, there is no violation
of the alleged agreement and EPSTEIN has not agreed to not contest liability (or
jurisdiction); Plaintiff did not choose to proceed exclusively under §2255.
Accordingly, it is well within this Court’s discretion to require that Plaintiff bring
her §2255 claim in the previously filed state court action.
Point 2. The issue of the applicable version of 18 U.S.C. §2255 is properly raised
at this time as Plaintiff alleged in her complaint that the 2006 version applies to
conduct that occurred prior to the effective date of the amendment. (pp. 7 – 13,
Plaintiff’s MOL).
Contrary to Plaintiff’s assertion, what version of 18 U.S.C. §2255 is appropriately
raised in Defendant’s motion to dismiss. Plaintiff’s complaint attempts to allege a cause
of action based on the 2006 amended version of the statute. As discussed in
Defendant’s motion, it is Defendant’s position that Plaintiff has failed to state a cause of
action thereunder as she is improperly bringing her claim under the 2006 amended
version instead of the statute in effect at the time of the complained of conduct, the
2005 version. Related to the issue of what version of §2255 applies to this action is
Plaintiff’s improper attempt to multiply the presumptive minimum of actual damages,
($50,000 under the 2005 statute; $150,000 under the 2006 amended version), based on
the number of incidents alleged, notwithstanding that the plain language of the statute
does not provide for a multiplier and speaks in terms of “personal injury” suffered and
“actual damages.”
Supporting the fact that Defendant properly raised these issues in his motion to
dismiss are the allegations set forth in Plaintiff’s complaint. In paragraph 11, Jane Doe
II alleges that – “From about June, 2003 until about February, 2005, Defendants,
EPSTEIN and KELLEN persuaded, induced, or enticed Plaintiff to come to Defendant
EPSTEIN’s home and provide Defendant EPSTEIN with ‘massages’ .... ” In paragraph
13, Plaintiff further alleges – “In violation of §2422(b), Defendants EPSTEIN and
KELLEN knowingly persuaded, induced, or enticed the Plaintiff to engage in acts of
prostitution, when the Plainitff was undr the age of 18, approximately on or about the
following dates that Plaintiff can document based on payments received: 6/16/03,
7/2/03, 4/9/04, 6/7/04, 7/30/04, 8/30/04, 10/9/04, 10/12/04 and 11/9/04 ..... ” In
paragraph 14, Plaintiff alleges – “Plaintiff seeks damages for personal injury in
accordance with 18 U.S.C. §2255(a) for each of the acts of prostitution set forth above
which Defendants solicited her, $150,000 for each violation, for a total range of
damages between $1.5 million dollars and $4.5 million dollars, jointly and severally, and
a reasonable attorney’s fees and costs, as permitted by the statute.”
Plaintiff chooses to analyze whether the statute in effect at the time of the alleged
conduct or the amended statute applies under a procedural versus substantive analysis.
Plaintiff, in short, argues that “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.” (MOL, p. 9). Clearly , the change to the statute was
not a procedural one. As discussed more fully in Defendant’s motion to dismiss, the
statutory scheme enacted and amended under “Masha’s Law” is consitently referred to
as criminal penalties and punishments directed at those who sexually exploit and abuse
minors.
Also, Plaintiff ignores the axiom that courts generally apply the statute in effect
at the time of the underlying conduct unless there is a clear statement that an
amendment is to apply retroactively to prior conduct. See, e.g., Hughes Aircraft Co. v.
U.S. ex rel Schumer, 520 U.S. 939, 952 (1997)(“Given the absence of a clear statutory
expression of congressional intent to apply the 1986 amendment to conduct competed
before its enactment, we ... hold that, under the relevant 1982 version of the [statute],
the District court was obliged to dismiss the action.”). There is absolutely no expression
of any intent that the amended version of the statute is to apply retroactively. This lack
of clear of expression can be contrasted with those statutory enactments or
amendments where such intent is clearly expressed by including language to the effect
that the amendment applies in proceedings “commenced on or after the date of
enactment.” See generally, Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1282-
1283 (11th Cir. 2005).
In Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1283 (11th Cir. 2005), this
Circuit discussed in detail the presumption against retroactivity where there is no clear
expression that a statute is to apply retroactively in the text. In amending §2255, there
does not exist any statement by Congress of its unambiguous intention that the statute
apply retroactively to pre-enactment conduct. The Tello Court’s analysis is worth
quoting as it confirms and supports that an amendment to a statute, such as in the
instant case – increasing the penalty or liability for damages by at least triple fold, or
under Plaintiff’s analysis, by 90 times from $50,000 to $4.5 million! - and with no
expression that it is to apply retroactively – will not be interpreted to apply retroactively.
Congress may prescribe the temporal reach of a statute by stating that it
applies to pre-enactment conduct, the first step in the Landgraf analysis, or a
statute may be silent regarding temporal reach, in which case courts
apply the judicial presumption against retroactivity. This presumption and
analysis, however, are unwarranted when Congress states its unambiguous
intention that the statute apply retroactively to pre-enactment conduct, in
language comparable to § 1658(b), that the new or amended statute applies to
proceedings commenced on or after enactment. See Landgraf, 511 U.S. at 259-
60, 114 S.Ct. at 1494 (stating that, if had Congress intended retroactive
application, then “it surely would have used language comparable to ... ‘shall
apply to all proceedings pending on or commenced after the date of enactment’
”) (citation omitted); accord INS v. St. Cyr, 533 U.S. 289, 318-19 & n. 43, 121
S.Ct. 2271, 2289-90 & n. 43, 150 L.Ed.2d 347 (2001) (collecting examples of
unambiguous temporal statutory language providing that the statute applies to
actions filed “on or after” the date of enactment, which includes violative
conduct that occurred prior to the effective date of the statute); Martin v. Hadix,
527 U.S. 343, 354, 119 S.Ct. 1998, 2004, 144 L.Ed.2d 347 (1999) (stating that “
‘new provisions shall apply to all proceedings pending on or commenced after
the date of enactment,’ ” referenced in Landgraf, “unambiguously addresses the
temporal reach of the statute” (citation omitted)); Lindh v. Murphy, 521 U.S.
320, 329 n. 4, 117 S.Ct. 2059, 2064 n. 4, 138 L.Ed.2d 481 (1997) (recognizing
from Landgraf that statutory language such as, “ ‘[This Act] shall apply to all
proceedings pending on or commenced after the date of enactment of this Act,’
” “might possibly have qualified as a clear statement for retroactive effect”
(quoting Landgraf, 511 U.S. at 260, 114 S.Ct. at 1494)); Rivers v. Roadway
Express, Inc., 511 U.S. 298, 307-08, 114 S.Ct. 1510, 1517, 128 L.Ed.2d 274
(1994) (noting that the subject statute omitted a provision in the bill that the
amendment “ ‘shall apply to all proceedings pending on or commenced after’ ” a
fixed date and describing the bill as containing “express retroactivity
provisions”). ...
Unlike other statutory enactments or amendments (cited above) where Congress
unambiguously expressed its intent regarding retroactive application, there is no
expression with respect to Masha’s Law, the 2006 amended version of §2255. An
example where Congress expressed its intent regarding retroactivity was when it
enacted an expanded sex-offender registry (“SORNA”) meant to bolster tracking of
convicted sex offenders, like Masha’s Law, also enacted as part of the Adam Walsh Act.
See Pub.L. 109-248 §§1-155, 120 Stat. 587, 590-611 (2006). Congress recognized that
applying expanded version of SORNA to past offenders would raise retroactivity
concerns, and therefore, expressly addressed the concern –
The Attorney General shall have the authority to specify the applicability of the
requirements of this subchapter to sex offenders convicted before July 27, 2006
or its implementation in a particular jurisdiction, and to prescribe rules for the
registration of any such sex offenders. 42 U.S.C. §16913(d).
As the Supreme Court and this Circuit have long observed, “where Congress
includes particular language in one section of a statute but it omits it in another section
of the same Act, it is generally presumed that Congress acts intentionally and
purposefully in disparate inclusion or exclusion.” U.S. v. Jordan, 915 F.2d 622, 628
(11th Cir. 1990), quoting Rodriguez v. U.S., 480 U.S. 522, 525 (1987). In this case,
there is no basis for departing from this well established rule. The only evidence
regarding §2255, as amended 2006, is that Congress did not intend it to apply
retroactively, and, accordingly, the 2005 version of the statute applies.
Accordingly, under well established legal principles, the statute in effect at the time
of the alleged conduct applies, not the amended version.
Point 3. 18 U.S.C. §2255 does not allow Plaintiff assert multiple claims against a
Defendant in an effort to multiply the presumptive actual damages minimum.
(pp. 14-15, Plaintiff’s MOL).
Plaintiff cites to no case law in support of its nonsensical view that §2255 allows
them to multiply the presumptive damages amount on a per incident basis. As
discussed in Part III, A. of Defendant’s motion to dismiss, unlike other statutes, there is
absolutely no language in the statute that suggest that the presumptive damages
amount is subject to multiplication on a per violation/incident basis. The statute on its
face speaks in terms of “actual damages” and “personal injury suffered.”
The recent case of United States v. Berdeal, 595 F.Supp.2d 1326 (S.D. Fla.
2009), further supports Defendant’s argument that the “rule of lenity,” (Part. III.C. of
Defendant’s motion), requires that the Court resolve the statutory interpretation conflict
in favor of Defendant. Assuming for the sake of argument that Plaintiff’s multiple
causes of action, leading to a multiplication of the statutory damages amount, is a
reasonable interpretation, like Defendant’s reasonable interpretation, under the “rule of
lenity,” any ambiguity is resolved in favor of the least draconian measure. In Berdeal,
applying the rule of lenity, the Court sided with the Defendants’ interpretation of the
Lacey Act which makes illegal the possession of snook caught in specified jurisdictions.
The snook had been caught in Nicaraguan waters. The defendants filed a motion to
dismiss asserting the statute did not encompass snook caught in foreign waters. The
United States disagreed. Both sides presented reasonable interpretations regarding the
reach of the statute. In dismissing the indictment, the Court determined that the rule of
lenity required it to accept defendants’ interpretation.
Point 4. Point 4 is required to be stricken as Plaintiff attempts to argue facts not
alleged in the Complaint, and misrepresents what is alleged in the Complaint.
Point 4 of Plaintiff’s MOL, p. 15-17, is required to be stricken as it not only argues
facts outside of the four corners of the complaint, but it continues to misrepresent what
is actually alleged in paragraph 15 of Plaintiff’s complaint. See discussion under “Point
1” above herein. Rather than address the deficiencies of her Complaint, Plaintiff
attempts to argue the merits of her case by asserting what the evidence may (or may
not) show. If Plaintiff is seeking to reallege her claims, she should do so by proper
procedure requesting she be allowed to amend. The discussion in Point 4 addresses
none of the arguments in Defendant’s motion to dismiss and should be stricken. Rule
12(f), Fed.R.Civ.P. (2009). Defendant stands on its position that Plaintiff has failed to
sufficiently plead the requisite predicate acts as set forth in his motion to dismiss.
Point 5. Plaintiff has failed to plead the requisite predicate acts or any
conspiracy to commit such acts. (MOL, pp 17-18).
Finally, Plaintiff has failed to allege under the Twombly standard of pleading
sufficient facts to allege the underlying predicate acts required by §2255. See Part III. B
and C of Defendant’s motion.
WHEREFORE, Defendant requests that this Court grant his motion to dismiss
and strike.
By: _______________________________
ROBERT D. CRITTON, JR., ESQ.
Florida Bar No. 224162
rcrit@bclclaw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpike@bclclaw.com
Certificate of Service
I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with
the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being
served this day on all counsel of record identified on the following service list in the
manner specified via transmission of Notices of Electronic Filing generated by CM/ECF
on this 1st day of June, 2009:
Isidro M. Garcia, Esq.
Garcia Law Firm, P.A.
224 Datura Street, Suite 900
West Palm Beach, FL 33401
561-832-7732
561-832-7137 F
isidrogarcia@bellsouth.net
Counsel for Plaintiff
Jack Alan Goldberger, Esq.
Atterbury Goldberger & Weiss, P.A.
250 Australian Avenue South
Suite 1400
West Palm Beach, FL 33401-5012
561-659-8300
561-835-8691 Fax
jagesq@bellsouth.net
Co-Counsel for Defendant Jeffrey Epstein
By: ____________________
ROBERT D. CRITTON, JR., ESQ.
Florida Bar No. 224162
rcrit@bclclaw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpike@bclclaw.com
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Flagler Drive, Suite 400
West Palm Beach, FL 33401
561-842-2820
Fax: 561-515-3148
(Co-counsel for Defendant Jeffrey Epstein)