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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA¶
CASE NO.: 09-80469-CIV-MARRA¶
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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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¶
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.”¶
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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 parallel 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¶
The 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.¶
The Supreme Court said that Congressional direction is the “[m]ost important factor.” Id.at 819.¶
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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.¶
$$^6$$Plaintiff 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.¶
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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. 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).¶
a Defendant EPSTEIN also cites to United States v. Siegel, 153 F.3d 1256 (11th 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¶
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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¶
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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.¶
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minimum ‘actual damages’”, ld. 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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sexual services he paid the Plaintiff for. Defendant 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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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 , 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:¶
Telecopier:¶
e-mail: isidrogarcia@bellsouth.net¶
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