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UNITED STATES DISTRICT COURT¶
SOUTHERN DISTRICT OF FLORIDA¶
CASE NO.: 09-CIV-80469 – MARRA/JOHNSON¶
JANE DOE II,¶
Plaintiff,¶
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,¶
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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¶
1See also Bray & Gillespie Management LLC v. Lexington Ins. Co., 2008 WL 4826115, 1 (M.D. Fla. 2008) – “[t]he Court ‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’ St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir.1979); accord Coney v. Smith, 738 F.2d 1199, 1200 (11th Cir.1984). Counsel should be given notice of and an opportunity to be heard as to the propriety of taking judicial notice. Fed.R.Civ.P. 201(e).” Here, Plaintiff filed the state court action and is, thusly, well of aware of its existence and details.¶
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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 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 knowingly persuaded, induced, or enticed the Plaintiff to engage in acts of prostitution, when the Plaintiff was under 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¶
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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¶
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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. 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¶
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| Isidro M. Garcia, Esq. | Garcia Law Firm, P.A. |
|---|---|
| 224 Datura Street, Suite 900 | West Palm Beach, FL 33401 |
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¶
Co-Counsel for Defendant Jeffrey Epstein¶
Respectfull¶
By:¶
ROBERT D. CRITTON, JR., ESQ.¶
Florida Bar No. 224162¶
MICHAEL J. PIKE, ESQ.¶
Florida Bar #617296¶
BURMAN, CRITTON, LUTTIER & COLEMAN¶
515 N. Flagler Drive, Suite 400¶
West Palm Beach, FL 33401¶
(Co-counsel for Defendant Jeffrey Epstein)¶