011.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-80804-CIV-MARRA/JOHNSON
JANE DOE, a/k/a,
JANE DOE NO. 1,
Plaintiff,
vs.
JEFFREY EPSTEIN, HALEY
ROBSON, and SARAH KELLEN,
Defendants.
________________________________/
MOTION TO REMAND
Plaintiff Jane Doe moves the Court to remand this action to state court for lack of
subject matter jurisdiction and states as follows:
1. Although Plaintiff Jane Doe, a Florida citizen, sues Haley Robson, also a Florida
citizen, in this action, Defendants removed the case to federal court on July 21,
2008, citing diversity of citizenship as the basis for federal subject matter
jurisdiction.
2. Defendants claim that Haley Robson, who has described herself as Heidi Fleiss
(the Hollywood madam),1
has “nothing to do with the plaintiff’s case against Mr.

1 See New York Post, Oct. 1, 2007 (reporting “Some of the girls, legal documents indicate,
were recruited by Haley Robson, now 21, who described herself as ‘like Heidi Fleiss,’ the
notorious Hollywood madam.”); Palm Beach Post, Aug. 14, 2006 (reporting that
Defendant “Robson told detectives, ‘I'm like a Heidi Fleiss.’”).
Epstein,” (Notice of Removal, DE 1, p. 3) and that Plaintiff fraudulently joined
her in this action to prevent complete diversity.2
3. As demonstrated in Plaintiff’s amended complaint, however, Defendant Robson
was a vital part of the scheme to lure underage girls, including Plaintiff, to
Epstein’s home in order to subject them to sexual abuse and induce them to
engage in lewd behavior. Defendant Robson was a key player in this scheme
because she was paid by Epstein to recruit the underage girls and take them to
Epstein’s Palm Beach mansion. (Amended Complaint ¶¶ 11-15, DE 1, pp. 302-
04). Without Defendant Robson, these girls, including Plaintiff, would not have
been victimized.
4. Because the allegations in Plaintiff’s amended complaint support the causes of
action against Defendant Robson for civil conspiracy, intentional infliction of
emotional distress, and civil RICO, Robson is a proper defendant in this action.
5. As Robson is admittedly a citizen of Florida, (Affidavit of Haley Robson, DE 1,
pp. 230-31) as is Plaintiff Jane Doe,3
(Amended Complaint ¶ 1, DE 1, pp. 301;
Deposition of Jane Doe, DE 1, pp. 31-32, 5:14-18, 6:6-10) federal diversity
jurisdiction does not exist in this case. See 28 U.S.C. §1332(a)(1) (providing that

2 Defendants also argue that Plaintiff named Robson as a defendant to prevent entry of a
stay in this matter pursuant to 18 U.S.C. § 3509(k). The Court has since denied
Defendants’ motion, holding a stay of this proceeding is not warranted under either the
statute or the Court’s discretion. (Order Denying Motion to Stay, DE 7). 3 Although Jane Does testified in deposition that she is a citizen of Florida, Defendants
question whether she might actually be a citizen of Georgia because her mother lives in
Georgia. (Notice of Removal, DE 1, pp. 7-8, n.6). Defendants fail to point out, however,
that there is a question of whether Defendant Epstein is actually a citizen of Florida
because he is now incarcerated in a Florida jail under an eighteen month sentence, to be
followed by twelve months of community control, during which Epstein agreed he will
be residing in Palm Beach, Florida. (Epstein Sentence, attached).
2
district courts have original jurisdiction over cases in which the matter in
controversy exceeds $75,000 and is between “citizens of different States”).
6. Defendants’ removal of this action was, therefore, improper. Because the Court
lacks diversity jurisdiction, or any other form of subject matter jurisdiction, over
this matter, the Court must remand this action to Florida state court.
WHEREFORE, Plaintiff requests the Court remand this action to state court and
requests Defendants be ordered under 28 U.S.C. §1447(c) to pay costs and attorney fees
incurred as a result of the removal.
MEMORANDUM OF LEGAL AUTHORITY
“An action in state court may be removed to federal court when the federal courts
have diversity or federal question jurisdiction. See 28 U.S.C. § 1441(a). When a
defendant removes a case to federal court on diversity grounds, a court must remand the
matter back to state court if any of the properly joined parties in interest are citizens of
the state in which the suit was filed. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 126
S.Ct. 606, 613, 163 L.Ed.2d 415 (2005) (citing 28 U.S.C. § 1441(b)). Such a remand is
the necessary corollary of a federal district court's diversity jurisdiction, which requires
complete diversity of citizenship.” Henderson v. Washington Nat. Ins. Co., 454 F.3d
1278, 1281 (11th Cir. 2006).
Federal Courts are obligated to construe removal statutes very strictly, and “all
doubts about jurisdiction should be resolved in favor of remand to state court.” Univ. of
South Alabama v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (citing
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994), and Coker v. Amoco Oil
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Co., 709 F.2d 1433 (11th Cir. 1983)). “A presumption in favor of remand is necessary
because if a federal court reaches the merits of a pending motion in a removed case where
subject matter jurisdiction may be lacking it deprives a state court of its right under the
Constitution to resolve controversies in its own courts.” American Tobacco Co., 168
F.3d at 411.
Defendants have removed this action even though Plaintiff named Haley Robson,
a citizen of Florida, as a defendant because they claim Plaintiff’s joinder of Defendant
Robson was done fraudulently in order to avoid federal jurisdiction. “In a removal case
alleging fraudulent joinder, the removing party has the burden of proving that either: (1)
there is no possibility the plaintiff can establish a cause of action against the resident
defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the
resident defendant into state court.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.
1989) (citing Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989)).
“The burden of the removing party is a ‘heavy one.’” Id. (quoting B., Inc. v. Miller
Brewing Co., 663 F.2d 545, 549 (5th Cir. Unit A 1981)).
“To determine whether the case should be remanded, the district court must
evaluate the factual allegations in the light most favorable to the plaintiff and must
resolve any uncertainties about state substantive law in favor of the plaintiff.” Id. (citing
B., Inc., 663 F.2d at 549). The Court may not “weigh the merits of a plaintiff's claim
beyond determining whether it is an arguable one under state law.” Id. “‘If there is even
a possibility that a state court would find that the complaint states a cause of action
against any one of the resident defendants, the federal court must find that joinder was
proper and remand the case to state court.’” Id. (quoting Coker v. Amoco Oil Co., 709
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F.2d 1433, 1440-41 (11th Cir. 1983)). This protects a plaintiff’s right to select the forum
of his lawsuit and the manner in which to prosecute the suit, and avoids exposing the
plaintiff to the possibility of prosecuting the suit to conclusion only to learn the federal
court lacked jurisdiction on removal. Id. (citing Parks v. The New York Times Co., 308
F.2d 474, 478 (5th Cir.1962); Cowart Iron Works, Inc. v. Phillips Constr. Co., Inc., 507
F.Supp. 740, 744 (S.D. Ga. 1981)).
Here, Defendants argue that removal is proper because Plaintiff cannot state a
cause of action against Defendant Robson under Florida law. Viewing the allegations of
the amended complaint in the light most favorable to Plaintiff, it is clear that there is at
least a possibility that Plaintiff can recover against Defendant Robson under Florida law
for each of the counts in the amended complaint—civil conspiracy, intentional infliction
of emotional distress, and civil RICO. Joinder of Defendant Robson in this action was
therefore proper, which requires remand of this action to Florida state court.
a. Plaintiff has a cognizable cause of action for civil conspiracy against
Defendant Robson .
“The elements of a civil conspiracy are: (a) a conspiracy between two or more
parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of
some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of
the acts performed pursuant to the conspiracy.” Walters v. Blankenship, 931 So. 2d 137,
140 (Fla. 5th DCA 2006) (citing Florida Fern Growers Ass'n, Inc. v. Concerned Citizens
of Putnam County, 616 So. 2d 562 (Fla. 5th DCA 1993)). As Defendants point out, there
muse be an “actionable underlying tort or wrong” for an actionable conspiracy claim.
Wright v. Yurko, 446 So. 2d 1162, 1165 (Fla. 5th DCA 1984).
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Plaintiff has grounded her conspiracy claim on the tort of sexual assault alleged in
Count I of her amended complaint. In this count, Plaintiff alleges that Defendant Epstein
tortiously assaulted her and states that the assault was committed in violation of Chapter
800 of the Florida Statutes. (Amended Complaint ¶¶ 17-18, DE 1, pp. 304-05). Under
Florida law, sexual assault is an intentional tort. See Doe v. Celebrity Cruises, Inc., 394
F.3d 891, 917 (11th Cir. 2004) (“Florida law equates sexual battery with an intentional
tort.”). This is true regardless of whether Defendant Epstein’s violation of Chapter 800
of the Florida Statutes also creates a private right of action, which is a matter of first
impression in Florida. Thus, Plaintiff has a cognizable cause of action for civil
conspiracy against Defendant Robson.
b. Plaintiff has a cognizable cause of action for intentional infliction of
emotional distress against Defendant Robson.
“The elements of the tort of intentional infliction of emotional distress are: (1)
The wrongdoer's conduct was intentional or reckless, that is, he intended his behavior
when he knew or should have known that emotional distress would likely result; (2) the
conduct was outrageous, that is, as to go beyond all bounds of decency, and to be
regarded as odious and utterly intolerable in a civilized community; (3) the conduct
caused emotion[al] distress; and (4) the emotional distress was severe.” Gallogly v.
Rodriguez, 970 So. 2d 470, 471 (Fla. 2d DCA 2007) (citing LeGrande v. Emmanuel, 889
So. 2d 991, 994-95 (Fla. 3d DCA 2004)).
Here, Plaintiff has alleged that Defendant Robson used false pretenses to lure her
(a 14-year old girl) to the mansion of Defendant Epstein and physically took her to
Epstein so that he could subject her to sexual abuse and lewd behavior. Defendant
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Robson recruited Plaintiff, as she had done numerous others, under the belief that
Plaintiff was economically disadvantaged and would be unlikely to contact authorities
after being sexually assaulted and abused by Defendant Epstein. Defendant Robson was
paid by Defendant Epstein only after the sexual assault and abuse were completed. And,
Defendant Robson knew that Plaintiff would be severely emotionally traumatized after
the abuse. (Amended Complaint ¶¶ 9, 11, 15, 24-28, DE 1, pp. 302-03, 304, 306). These
allegations are enough to demonstrate Plaintiff has a cognizable cause of action for
intentional infliction of emotional distress against Defendant Robson because they
amount to conduct that would be viewed as outrageous by any reasonable person.
Defendants argue that Plaintiff is barred from recovering for intentional infliction
of emotional distress under Florida law because she went to Defendant Epstein’s home
with the intent to give him a massage for monetary compensation when it is a crime (a
misdemeanor), under section 480.047, Florida Statutes, to practice massage without a
license. They claim Plaintiff cannot “recover damages flowing from her own illegal
conduct.” (Notice of Removal, DE 1, p. 16).
First, Plaintiff’s damages do not flow from her conduct in giving Defendant
Epstein a massage without a license. Defendants Epstein, Kellen, and Robson engaged in
a scheme to lure underage girls to Epstein’s mansion in order for Epstein to sexually
abuse them. Plaintiff’s damages resulting from Defendants making her a victim to their
intentional, outrageous, and criminal conduct in no way flow from her decision as a 14-
year old girl to make some extra money by giving a massage.
Furthermore, it is not a universal rule in Florida that any Plaintiff engaged in any
criminal action, no matter how trivial, is barred from recovering damages suffered in
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connection with that conduct. “The defense of in pari delicto is not woodenly applied in
every case where illegality appears somewhere in the transaction; since the principle is
founded on public policy, it may give way to a supervening public policy.” Kulla v. E.F.
Hutton & Co., Inc., 426 So. 2d 1055, 1057 n. 1 (Fla. 3d DCA 1983). “‘The fundamental
purpose of the rule must always be kept in mind, and the realities of the situation must be
considered. Where, by applying the rule, the public cannot be protected because the
transaction has been completed, where no serious moral turpitude is involved, where the
defendant is the one guilty of the greatest moral fault, and where to apply the rule will be
to permit the defendant to be unjustly enriched at the expense of the plaintiff, the rule
should not be applied.’” Id. (quoting Goldberg v. Sanglier, 96 Wash.2d 874, 639 P.2d
1347, 1353-54 (1982)). The fact that Florida law gives the trial court the discretion to
apply the doctrine of in pari delicto, considering that all ambiguities must be resolved in
favor of Plaintiff, does not take away from the fact that Plaintiff has a cognizable cause of
action for intentional infliction of emotional distress against Defendant Robson.
c. Plaintiff has a cognizable cause of action for civil RICO against Defendant
Robson.
Finally, Defendants argue that Plaintiff does not have a cognizable cause of action
for civil RICO under section 772.104, Florida Statutes, because she was not directly
injured by the Defendants’ scheme. In Count IV of the amended complaint, Plaintiff
alleges that Defendants engaged in a pattern of criminal activity in which Defendant
Robson found and delivered underage girls to Defendant Epstein in order for Epstein to
“solicit, induce, coerce, entice, compel or force such girls to engage in acts of prostitution
and/or lewdness.” (Amended Complaint ¶ 32, DE 1, p. 307). She also alleges that she
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was a victim of Defendants’ scheme because she was one of the underage girls found and
delivered to Defendant Epstein by Defendant Robson and that she endured Epstein’s
actions as he tried to get her to engage in, and forced upon her, acts of prostitution and
lewdness. (Amended Complaint ¶ 33, DE 1, pp. 307-308). Plaintiff, who was a victim of
Defendants’ scheme, was directly harmed by the scheme and it is damages for this harm
that she seeks in Count IV of the amended complaint. Cf. Palmas Y Bambu, S.A. v. E.I.
Dupont De Nemours & Co., Inc., 881 So. 2d 565, 570 (Fla. 3d DCA 2004) (holding
plaintiff has standing to sue for civil RICO when her injuries flow directly from
commission of the predicate acts, which means “when the alleged predicate act is mail or
wire fraud, the plaintiff must have been a target of the scheme to defraud and must have
relied to his detriment on misrepresentations made in furtherance of that scheme”).
Because Plaintiff was a target of Defendants’ scheme and was harmed by their actions in
carrying out the scheme, Plaintiff has a cognizable cause of action for civil RICO against
Defendant Robson.
CONCLUSION
Plaintiff has cognizable causes of against Defendant Robson, a Florida citizen, for
civil conspiracy, intentional infliction of emotional distress, and civil RICO. Because
Plaintiff has a possibility of recovering against Defendant Robson under her amended
complaint, Defendants have failed to meet their burden of demonstrating that Robson was
fraudulently joined in this action. As the parties lack complete diversity of citizenship,
the Court lacks subject matter jurisdiction over this matter and should remand this case to
Florida state court.
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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1.A.3
On August 18, counsel for Plaintiff conferred with counsel for the Defendants in a
good faith effort to resolve the issues raised in this motion, but was unable to do so.
_s/ Spencer T. Kuvin________
Spencer T. Kuvin (Florida Bar Number 089737)
Certificate of Services
I hereby certify that on August 18, 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 on August 18, 2008, on all counsel of record or pro se parties
identified on the attached Service List in the manner specified, via transmission of
Notices of Electronic Filing generated by CM/ECF.
_s/ Spencer T. Kuvin________
Spencer T. Kuvin (Florida Bar Number 089737)
Attorney E-Mail Address:
RICCI~LEOPOLD, P.A.
2925 PGA Blvd.
Suite 200
Palm Beach Gardens, FL 33410
Telephone: (561) 684-6500
Facsimile: (561) 697-2383
Counsel for Plaintiff Jane Doe
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SERVICE LIST
Doe v. Epstein, et. al.
CASE NO: 08-80804-Civ-MARRA/JOHNSON
United States District Court, Southern District of Florida
Guy Alan Lewis, Esq.
Email: lewis@lewistein.com
Lewis Tein
3059 Grand Avenue, Suite 340
Coconut Grove, FL 33133
Phone: (305) 442-1101
Fax: (305) 442-6744
Counsel for Jeffrey Epstein
Served via CM/ECF
Michael R. Tein, Esq.
Email: tein@lewistein.com
Lewis Tein
3059 Grand Avenue, Suite 340
Coconut Grove, FL 33133
Phone: (305) 442-1101
Fax: (305) 442-6744
Counsel for Jeffrey Epstein
Served via CM/ECF
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