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Court filing · Jan. 24, 2020

Court filing, 2020-01-24

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

CA FLORIDA HOLDINGS, LLC, Publisher of THE PALM BEACH POST,

Plaintiff,

v.

CASE NO: 2019-CA-014681

DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, SHARON R. BOCK, as Clerk & Comptroller, Palm Beach County, Florida,

Defendants. _____/

DEFENDANT, DAVE ARONBERG, AS STATE ATTORNEY OF PALM BEACH COUNTY, FLORIDA’S ANSWER TO FIRST AMENDED COMPLAINT AND MOTION TO DISMISS COUNT II

Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, (“SAO”), by and through the undersigned attorney, hereby answers Count I of the First Amended Complaint of Plaintiff, CA Florida Holdings, LLC, Publisher of The Palm Beach Post (“Post”), and files a Motion to Dismiss Count II, as follows:

JURISDICTION

    1. Admitted for jurisdictional purposes.

PARTIES

    1. Admitted.
    1. Denied that Defendant Aronberg or the Office of the State Attorney for the Fifteenth Judicial Circuit is in possession and/or control of documents that are the subject of this action.

Otherwise admitted.

    1. Admitted.

INTRODUCTION

    1. Paragraph 5 contains the Post’s statement of the case and legal arguments to which no

response is required. To the extent that a response is required, the SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 5, and therefore denies the allegations and demands strict proof thereof.

  1. Paragraph 6 contains the Post’s statement of the case and legal arguments to which no response is required. To the extent that a response is required, the SAO admits only lhpt section 905.27(I)(c), Florida Statute authorizes the disclosure of grand jury proceedings certain circumstances

AS 7. Paragraph 7 contains the Palm Beach Post’s statement of egal arguments to which no response is required. To the extent that a response is al? the SAO is without knowledge or information sufficient to form a belief as to the t an factual allegations contained in paragraph 7, and therefore denies the allegations and de\ ct proof thereof.

/ 4’ 8. Paragraph 8 sets forth the Post’s state’ o e case and legal arguments to which /fr \NNir no response is required. To the extent that airesrnse is required, the SAO is without knowledge or information sufficient to form a belief as-to the truth of any factual allegations contained in paragraph 8, and therefore denies the allegations grid detnands strict proof thereof. \

  1. Paragraph 8 setiforth the Post’s statement of the case and legal arguments to which no response is required. ro/ —the extent that a response is required, the SAO is without knowledge or information suff nt to forin a belief as to the truth of any factual allegations contained in paragraph 9, and the the allegations and demands strict proof thereof.

FACTUAL BACKGROUND

The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 10, and therefore denies the allegations and demands strict proof thereof.

A. First Epstein Sex Crimes Investigation, Indictment, and Plea Agreement: 2005-2008.

I I. The SAO is without knowledge or information sufficient to form a belief as to the truth

of any factual allegations contained in paragraph II, and therefore denies the allegations and demands strict proof thereof

  1. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 12, and therefore denies the allegations and demands strict proof thereof.

  2. The SAO is without knowledge or information sufficient to form a beli truth of any factual allegations contained in paragraph 13, and therefore denies the allegapolfsand demands strict proof thereof.

  3. The SAO is without knowledge or information sufficient to forma belief as to the truth of any factual allegations contained in paragraph 14, and thereforedeniee the allegations and demands y/ strict proof thereof.

  4. The SAO is without knowledge or information sufficient to form a belief as to the truth . of any factual allegations contained in paragraph 15, and therefore denies the allegations and demands strict proof thereof.

(1) Police Chief Re1ter’s Lter to the State Attorney

  1. The SAO is without kpowledge or information sufficient to form a belief as to the truth of any factual allegationsetained in paragraph 16, and therefore denies the allegations and demands strict proof thereof:

  2. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 17, and therefore denies the allegations and demands strict proof thereof.

(2) The July 2006 State Grand Jury Presentation

IS. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 18, and therefore denies the allegations and demands strict proof thereof.

  1. The SAO is without knowledge or information sufficient to forin a belief as to the truth of any factual allegations contained in paragraph 19,. and therefore denies the allegations and demands strict proof thereof.

  2. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 20, and therefore denies the allegations and demands strict proof thereof.

  3. The SAO is without knowledge or information sufficient to fomiabelief as to the truth of any factual allegations contained in paragraph 21, and therefore denies the allegations and demands strict proof thereof.

  4. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 22, and therefore/denies the allegations and demands strict proof thereof

(3) The FBI’s Investigation and Epstein’s Non-Prosecution Agreement with Federal Authorities.

“4 23. The SAO is without yctfoyvledge or information sufficient to form a belief as to the truth of any factual allegations cont graph 23, and therefore denies the allegations and demands strict proof thereof.

  1. Th AO i without knowledge or information sufficient to form a belief as to the truth of any factual ns contained in paragraph 24, and therefore denies the allegations and demands strict pr

The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 25, and therefore denies the allegations and demands strict proof thereof.

  1. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 26, and therefore denies the allegations and demands

strict proof thereof.

  1. The SAO is without knowledge or information sufficient to forin a belief as to the truth of any factual allegations contained in paragraph 27, and therefore denies the allegations and demands strict proof thereof.

  2. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 28, and therefore denies the allegationSaittdemands strict proof thereof.

  3. The SAO is without knowledge or information sufficient t b ief as to the truth of any factual allegations contained in paragraph 29, and therefore denies allhgations and demands strict proof thereof.

  4. The SAO is without knowledge or information ffidient to form a belief as to the truth of any factual allegations contained in paragraph 3% afidllierefore denies the allegations and demands strict proof thereof.

  5. The SAO is without knowledge or information sufficient to forth a belief as to the truth of any factual allegations contained in paragraph 31, and therefore denies the allegations and demands strict proof thereof.

(4) The Crime Victims’ Rights Act Litigation.

  1. SAO isiNwithout knowledge or information sufficient to form a belief as to the truth of any fac ati ns contained in paragraph 32, and therefore denies the allegations and demands strictathe eof.

13’. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 33, and therefore denies the allegations and demands strict proof thereof.

  1. The SAO is without knowledge or information sufficient to forth a belief as to the truth of any factual allegations contained in paragraph 34, and therefore denies theallegations and demands

strict proof thereof.

  1. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 35, and therefore denies the allegations and demands strict proof thereof.

  2. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 36, and therefore denies the allegations anidemands strict proof thereof.

  3. The SAO is without knowledge or information sufficient to forin a belief as to the truth of any factual allegations contained in paragraph 37, and therefore denies the_Allegations and demands strict proof thereof.

B. Second Epstein Sex Crimes Investimition, Indictment, Suicide: 2019.

  1. Admitted.

  2. The SAO is without knowledge okinformanon sufficient to form a belief as to the truth of any factual allegations contained in paragraph 39, and therefore denies the allegations and demands strict proof thereof.

  3. The SAO is wititut knowledge or information sufficient to form a belief as to the truth of any factual allegations strict proof thereof, ed in paragraph 40, and therefore denies the allegations and demands

  4. di The SAO is without knowledge or information sufficient to form a belief as to the truth of any_factual allegations contained in paragraph 41, and therefore denies the allegations and demands strict proof thereof.

  5. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 42, and therefore denies the allegations and demands strict proof thereof

  6. The SAO is without knowledge or information sufficient to forM a belief as to the truth

of any factual allegations contained in paragraph 43, and therefore denies the allegations and demands strict proof thereof.

  1. Admitted.

C. The August 27. 2019. SDNY Hearing: Epstein’s Victims Sneak.

  1. The SAO is without knowledge or information sufficient to form a belief asto the truth of any factual allegations contained in paragraph 44, and therefore denies the allegations and demands strict proof thereof.

  2. Admitted that United States Senior Judge Richard M. Berman ordered a hearing on August 27, 2019, but the SAO is without knowledge or information sufficient to form a belief as to the truth of any remaining factual allegations contained in paragraph 43, and therefore denies the allegations and demands strict proof thereof.

  3. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragr 7,•Si therefore denies the allegations and demands strict proof thereof.

  4. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 48, and therefore denies the allegations and demands strict proof thereof.

  5. SAO isVoithout knowledge or information sufficient to form a belief as to the truth of any fac ati ns contained in paragraph 49, and therefore denies the allegations and demands stric f.

5 The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations paragraph 50, and therefore denies the allegations and demands strict proof thereof.

  1. The SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 5l. and therefore denies the allegations and demands strict proof thereof.

D. The Palm Beach Post’s Standine and the Public Interest.

  • (1) The Palm Beach Post Has Reported Extensively On Epstein’s Crimes For Nearly 15 Years.

  1. Admitted.

  2. Admitted

  3. Admitted that the Post has extensively investigated and reported5jhe allegations against, the law enforcement investigation of, and the crimes committed by Epstein, intlaCks sufficient knowledge to admit or deny any factual allegations remaining in paragraph 54, and therefore denies the allegations and demands strict proof thereof.

  4. The SAO is without knowledge or infornratigki spMartit to form a belief as to the truth of any factual allegations contained in paragra erefore denies the allegations and demands strict proof thereof.

(2) The Palm Beach Post’s Standintarrd the Public Interest.

  1. Paragraph 56 of the First Amended Complaint contains the Palm Beach Post’s statement of the case and legal arguments to which no response is required. To the extent that a response is required, the SAO admits the press has a constitutional right of access to criminal 7- proceedings, but isj iithouflnowledge or information sufficient to form a belief an) the truth of any remaining fac tions contained in paragraph 56, and therefore denies the allegations and denten f thereof

Paragraph 57 sets forth the Post’s statement of the case and legal arguments to which no response is required. To the extent that a response is required, the SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 57, and therefore denies the allegations and demands strict proof thereof

  1. Paragraph 58 sets forth the Post’s statement of the case and legal arguments to which

no response is required. Tp the extent that a response is required, the SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations:contained in paragraph 57, and therefore denies the allegations and demands strict proof thereof

  1. Paragraph 59 of the First Amended Complaint contains the Palm Beach Post’s statement of the case and legal arguments to which no response is required. To the extent that a response is required, the SAO admits that Fla. Stat. 905.27 allows a court to make therietelinl ination of disclosure but is without knowledge or information sufficient to form a belief as to the truth of any remaining factual allegations contained in paragraph 59, and therefore denies allegations and demands strict proof thereof. Li

E. The Court’s Jurisdiction and Authority

(1) The Court’s Supervision of the Grand brit rpcess and Its Authority to Order ACE Public Disclosure of the Epstein Evidence.

  1. Paragraph 60 of the First ded Complaint contains the Palm Beach Post’s statement of the case and legal arguments to which no response is required. To the extent that a response is required, the SAO admits thelress has a constitutional right of access to criminal proceedings, but is without knoWiedge Nk(opinformation sufficient to form a belief as to the truth of any remaining factual allegations cSfIllied in paragraph 60, and therefore denies the allegations and demands strict pro th

  2. ed..

mined.

Paragraph 63 sets forth the Post’s statement of the case and legal arguments to which no resptmse is required. To the extent that a response is required, the SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 63, and therefore denies the allegations and demands strict proof thereof.

  1. Paragraph 64 of the First Amended Complaint contains the Palm Beach Post’s

statement of the case and legal arguments to which no response is required. To the extent that a response is required, the SAO is without knowledge or information sufficient to form a belief as to the truth of any remaining factual allegations contained in paragraph 64, and therefore denies the allegations and demands strict proof thereof.

  • (2) The Court’s Jurisdiction To Declare Ri2hts And Construe Statutes. 4
    1. Admitted. ..4.4”.,
    1. Admitted.
    1. Admitted.

\

COUNT I C.)

(Declaratory Relief - Florida Stat. Sections . ) et seq.)

  1. The SAO reincorporates and re-alleges its p t s to paragraphs I through 67 above.

  2. Admitted. t

itir 70. Paragraph 70 contains the ment of the case and legal arguments to which no response is required. To the ext sponse is required, the SAO is without knowledge or information su0cient to form lief the truth of any factual allegations contained in paragraph 70, and therefore denies the alle ns and demands strict proof thereof

  1. A tted at e Pahn Reach Post is seeking a declaration from this Court but denies the re Paragraph 71.

  2. Paragraph 74 contains the Post’s legal arguments to which ne response is required.

tied.

Denied.

To the extent that a response is required, the SAO is without knowledge or information sufficient to form a belief as to the truth of any factual allegations contained in paragraph 74, and therefore denies the allegations and demands strict proof thereof.

MOTION TO DISMISS COUNT II (Florida Stat. Section 905.27)

Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, pursuant to the Florida Rules of Civil Procedure 1.420, hereby files this Motion to Dismiss Count II of Plaintiff’s First Amended Complaint for failure to state a cause of action, and in support thereof states:

I. Standard of Review

When confronted with a motion to dismiss, the Court must determine whether the COmplaint as phrased within its four corners sufficiently states a cause of action, whereby relief ail be granted. Fox v. Professional Wrecker Operations, 801 So. 2d 175, 178 (Fla. 5t DCA 2001). A motion to dismiss tests whether the plaintiff has stated a cause of action. or a motion to dismiss under Florida Rule of Civil Procedure 1.140(b) is whether the ple i rove any set of facts as alleged in the Complaint to support his or her claim. See ti 11 co Inc 89 So. 2d 482, 484 (Fla. 1956); Wasua Ins. Co. v. Haynes 683 So. 2d 11 DCA 1996).

In order to meet this test, “a comp ‘rit ti t allege sufficient ultimate facts to show that a pleader is entitled to relief.” W.R. ToWn ntr.., Inc.. v. Jensen Civ. Constr.. Inc. 728 So. 2d 297, 300 (Fla. 1st DCA 1999) (quoting PeQCosgrove, 464 So. 2d 664, 665 (Fla. 2d DCA 1985); Fla. R. Civ. P. 1.110(b)). The courliieed not accept internally inconsistent factual claims, conclusory allegations, unwarranted dOuCiions, or mere legal conclusions made by a party. Id. (citing Response 47;4 Oncology. Inc v, matrahealth Insurance Co. 978 F. Supp. 1052, 1058 (S.D. Fla. 1997))’ Oxford Asset MRmt. v; Jaharis;297 F.3d 1182, 1188 (I I th Cir. 2002) (“1On a motion to dismiss,] the plaintiff’s factu4allgitions are accepted as true… However, legal conclusions masquerading as facts will not prevent dismissal.”). To avoid dismissal, a pleading “must allege a cause of action recognized under laW’ against the defending party. Kislak v. Kreedian 95 So. 2d 510, 514 (Fla. 1957).

II. Argument

  • a. Neither Defendant Aronberg, nor the Office of the State Attorney for the Fifteenth Judicial Circuit is in possession and/or control of documents that

are the subject of this action,

p

It is significant to emphasize that despite Plaintiff’s allegations to the contrary, Defendant Atonberg and the Office of the. State Attorney for the Fifteenth Judicial Circuit are not in custody or control of the records sought herein, and therefote Defendant Aronberg is not a proper party to this action. In fact, Defendant, Sharon it Bock, as Clerk and Comptroller of Palm Beach Cam t, Florida, admits that it is the custodian in possession of the documents that are the subject of

b. Plaintiff Fails to State a Cause of Arnett

Plaintiff attempts to assert a cause of action, in the interest of “fti “,iindet Florida Statute §.905.27; however, a review of the statute in question reveals that rt1nCth of action iSprOvided for therein and consequently Count IIof Plaintiff’s First Ant aint must be dismissed as a matter of law. Despite Plaintiff’s extensive recitation 0 th- 6 background regarding Jeffery Epstein and the testimony and evidence present’ k it ,2 grand jury in Palm Beach County, Florida, Fla. Stat. § 905.27, merely explains * its to the disclosiire of grand jury testimony and does not set forth in any way a ca upon *high to initiate a valid law suit.

Moreover, a review of th provided a basis for a cause of pertinent part, Fla Stat. Issue clearly indicates that even if § 90527, Fla. Stat. aintiff is barred from access to the records it seeks. To wit, in (2) states:

When s is ordered by acouri pursuant to subsection (1) for use in a civil case, i ay • sclosed to all parties to the case and to their attorneys and by the latter to eir al iates and employees. However, the grand itin, testimony afforded c .• s by the court can only be used in the defense or prosecution of the civil or case and for no other purpose whatsoever.

m, despite the clear statutory guidelines for disclosure of grand jury inaterialt in a civil case, Plaintiff is improperly seeking the requested 20Q6 grand jury materials for’ the purposes of public disclosure pursqant to the court’s inherent authority and supervisory powers over the grand jety, [See, Complaint118, 63). Again, even ifPlaintiff properly asserted a cause of action under Fla. Stat. 905.27, the statute unambiguously states that grand jury testimony “can only be used in the defense or prosacution of the civil or criminal case and for no other purpose whatsoeVar”, which is distinctly different from Plaintiff’s intended purpose for public disclosure of the grand jury evidence. Fla Stat 4 905.27(2).

WHEREFORE, based on the fotegoing argument and supporting authority, Defendant, DAVE ARONBERO, as State Attorney of Palm Beach County, Florida, respectfully requests that this Honorable Court grant the instant Motion and dismiss Count H of Plaintiff’s First Am d mplaint with prejudice, and grant Defendant Aronberg all other and further relief de and proper, including attorney’s fees and oasts for defending this frivolous action.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 24th day of January py of the foregoing has beep electronically filed with the Florida E-File Portal for e- parties of record herein.

SCHOLZ & WYLER, LLC

Douglas A. Wyler

Arthur I. Esq. Fla Bar No,; 10249 Richard J. Scholz, Esq. Fla. Bar No.: 0021261 Douglas A. Wyler, Esq. Fla Bar No.: 119979 961687 Gateway Blvd., Suite 201-I Fernandina Beach, Florida 32034 (904) 261-3693 (904) 261-7879 Fax Primary: jacobsscholzlaw@comcast.net

General Counsellor the Florida Prosecuting Attorney’s Association

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