EFTA00175341¶
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA¶
CASE NO.: 08-CV-80811-MARRA/JOHNSON¶
A. ,¶
Plaintiff,¶
V.¶
JEFFREY EPSTEIN and¶
Defendants,¶
DEFENDANT JEFFREY EPSTEIN’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION, AND MOTION FOR MORE DEFINITE STATEMENT; MOTION TO STRIKE, AND SUPPORTING MEMORANDUM OF LAW¶
Defendant, JEFFREY EPSTEIN, (“EPSTEIN”), by and through his undersigned counsel, moves to dismiss Count I through XXXI of Plaintiff’s First Amended Complaint for failure to state a cause of action, and for more definite statement, or to strike, as specified herein. Rule 12(b)(6), (e) and (f), Fed.R.Civ.P. (2008); Local Gen. Rule 7.1 (S.D. Fla. 2008). In support of dismissal, Defendant states:¶
The First Amended Complaint attempts to allege 32 counts. Counts I through XXX are purportedly brought pursuant to 18 U.S.C. §2255 – Civil Remedies for Personal Injuries; Count XXXI is entitled “Sexual Battery,” and Count XXXII is entitled “Conspiracy to Commit Tortious Assault only against Defendant, ” Under the heading “Factual Allegations” of the First Amended Complaint, Plaintiff also references numerous federal and state criminal statutes, but fails to allege whether or not she is attempting to assert claims based on these statutes. (¶15, 1st Am. Comp.).¶
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assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. On a motion to dismiss, the well pleaded allegations of plaintiff’s complaint are taken as true and construed in the light most favorable to the plaintiff. M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 (11th Cir.2006).¶
Significantly, the Supreme Court in Bell Atlantic Corp. V. Twombly abrogated the often cited observation 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 that would entitle him to relief.” Id, (abrogating and quoting Conley v. Gibson, 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. As explained by the Supreme Court in Bell Atlantic Corp., supra at 1664-65:¶
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (C.A.7 1994), a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004) (hereinafter Wright & Miller) (“[T]he pleading must contain something more … than … a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (“Rule 12(b)(6) does not countenance … dismissals based on a judge’s disbelief of a complaint’s¶
EFTA00175343¶
Case 9:08-cv-80811-KAM¶
Document 47 Entered on FLSD Docket 03/12/2009¶
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v. Epstein, et al.¶
Contrary to Plaintiff’s attempted assertion of 30 separate counts pursuant to 18 U.S.C.A. §2255 - Civil Remedy for Personal Injuries, this statute creates a single federal cause of action or “civil remedy” for a minor victim of sexual, abuse, molestation and exploitation. Under the plain meaning of the statutory text, §2255 does not create separate causes of action on behalf of a minor against a defendant on a “per violation” basis. No where in the statutory text is there any reference to the civil remedy afforded by this statute as being on a “per violation” basis. 18 U.S.C. 2255(a) creates a civil remedy for “a minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation …” See Smith v. Husband, 428 F.Supp.2d 432 (E.D. Va. 2006); Smith v. Husband, 376 F.Supp.2d 603 (E.D. Va. 2006); Doe v. Liberatore, 478 F.Supp.2d 742, 754 (M.D. Pa. 2007); and the recent cases in front of this court on Defendant’s Motions to Dismiss and For More Definite Statement – Doe No. 2 v. Epstein, 2009 WL 383332 (S.D. Fla. Feb. 12, 2009); Doe No. 3 v. Epstein, 2009 WL 383330 (S.D. Fla. Feb. 12, 2009); Doe No. 4 v. Epstein, 2009 WL 383286 (S.D. Fla. Feb. 12, 2009); and Doe No. 5 v. Epstein, 2009 WL 383383 (S.D. Fla. Feb. 12, 2009).¶
There is no reported case supporting Plaintiff’s tortured and nonsensical interpretation of §2255. In all of these cases (cited above), each of the Plaintiffs brought a single count or cause of action attempting to allege numerous violations of the “predicate acts” specifically identified in §2255. “18 U.S.C. §2255 gives victims of sexual conduct who are minors a private right of action.” Martinez v. White, 492¶
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v. Epstein, et al.¶
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v. Husband, 376 F.Supp.2d at 610 (“When interpreting a statute, [a court’s] inquiry begins with the text.”). “The Court must first look to the plain meaning of the words, and scrutinize the statute’s ‘language, structure, and purpose.’” Id. In addition, in construing a statute, a court is to presume that the legislature said what it means and means what it said, and not add language or give some absurd or strained interpretation. As stated in CBS, Inc., supra at 1228 – “Those who ask courts to give effect to perceived legislative intent by interpreting statutory language contrary to its plain and unambiguous meaning are in effect asking courts to alter that language, and ‘[c]ourts have no authority to alter statutory language… We cannot add to the terms of [the] provision what Congress left out.’ Merritt, 120 F.3d at 1187.” See also Dodd v. U.S., 125 S.Ct. 2478 (2005); 73 Am.Jur.2d Statutes §124.¶
Title 18 of the U.S.C. is entitled “Crimes and Criminal Procedure.” §2255 is contained in “Part I. Crimes, Chap. 110. Sexual Exploitation and Other Abuse of Children.” 18 U.S.C. §2255 (2003), is entitled Civil remedy for personal injuries, and provides:¶
(a) Any minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit, including a reasonable attorney’s fee. Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than $50,000 in value.¶
(b) Any action commenced under this section shall be barred unless the complaint is filed within six years after the right of action first accrues or in the case of a person under a legal disability, not later than three years after the disability.¶
Reading the entire statute in context, no where is there any language indicating that a minor plaintiff has a private right of action against a defendant “per violation.”¶
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brought a single cause of action, based on allegations of multiple violations of the §2255 predicate acts. Furthermore, the court refused to add a venue interpretation that simply was not written into the statutory text. See other §2255 cases cited herein.¶
For an example of a statute wherein the legislature included the language “for each violation” in assessing a “civil penalty,” see 18 U.S.C. §216, entitled “Penalties and injunctions,” of Chapter 11 – “Bribery, Graft, and Conflict of Interests,” also contained in Title 18 – “Crimes and Criminal Procedure.” Subsection (b) of §216 gives the United States Attorney General the power to bring a “civil action … against any person who engages in conduct constituting an offense under” specified sections of the bribery, graft, and conflicts of interest statutes. The statute further provides in relevant part that “upon proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty of not more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, which ever amount is greater.” As noted, 18 U.S.C. §2255 does not include such language.¶
Accordingly, Plaintiff’s multiple counts brought pursuant to §2255 are required to be dismissed for failure to state multiple causes of action.¶
B. Also requiring dismissal Plaintiff has failed to sufficiently allege the requisite §2255 predicate acts.¶
Also requiring dismissal of Plaintiff’s purported §2255 claim(s) is Plaintiff’s failure to sufficiently allege any violation of a requisite predicate act as specifically identified in subsection (a) of the statute quoted above. Relevant to Plaintiff’s complaint, 18 U.S.C. 2255(a) creates a civil remedy for “a minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title¶
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v. Epstein, et al.¶
the standard of pleading as established in Twombly, supra, Plaintiff has failed to sufficiently allege the requisite elements of a §2255 claim, thus requiring dismissal; for failure to state a cause of action.¶
C. 18 U.S.C. §2255 does not allow for the recovery of punitive damages. Thus, Plaintiff’s request for punitive damages under §2255 is required to be dismissed or stricken.¶
In each of the improperly asserted Counts I through XXX, Plaintiff also seeks punitive damages. A plain reading of 18 U.S.C. §2255, quoted above herein, establishes that the statute does not allow for the recovery of punitive damages. Had Congress wanted to allow for such a recovery, it could have easily written such language into the damages provision of the statute. The legislative body chose not to write a punitive damages component into §2255 as it has done in other statutes affording civil remedies. In relevant part, §2255 reads - Any minor who is a victim of a violation of section … of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit, including a reasonable attorney’s fee. Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than $50,000 in value.” See discussion of rules of statutory construction in part III.A. herein. See subsection (f)(2) of 18 U.S.C. §2252A, entitled Certain activities relating to material constituting or containing child pornography, also contained in Chapter 110, Part I, Crimes, within which specific reference is made to “compensatory and punitive damages” in setting forth the relief which may be afforded to a plaintiff in bringing a civil action under §2252A(f).¶
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v. Epstein, et al.¶
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statute prohibits a number of activities involving criminal ‘proceeds.’” ld, at 2023. Noting that the term “proceeds” was not defined in the statute, the Supreme Court stated the well settled principle that “when a term is undefined, we give it its ordinary meaning.” ld, at 2024. Under the ordinary meaning principle, the government’s position was that proceeds meant “receipts,” while the defendant’s position was that proceeds meant “profits.” The Supreme Court recognized that under either of the proffered “ordinary meanings,” the provisions of the federal money-laundering statute were still coherent, not redundant, and the statute was not rendered “utterly absurd.” Under such a situation, citing to a long line of cases and the established rule of lenity, “the tie must go to the defendant.” ld, at 2025. See portion of Court’s opinion quoted above. “Because the ‘profits’ definition of ‘proceeds’ is always more defendant friendly that the ‘receipts’ definition, the rule of lenity dictates that it should be adopted.” ld.¶
Plaintiff’s position would subject Defendant EPSTEIN to a punishment that is not clearly prescribed – an unwritten multiplier of the “actual damages” or the presumptive damages. The rule of lenity requires that Defendant’s interpretation of the remedy afforded under §2255 be adopted.¶
In addition, under the Due Process Clause’s basic principle of fair warning -¶
… a criminal statute must give fair warning of the conduct that it makes a crime … As was said in United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989,¶
‘The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’¶
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l. v. Epstein, et al.¶
offenses outlined in Chapter 800 of the Federal Codes, as well as those designated in Florida Statutes §796.03,§796.07,§796.045,§796.04,§39.01; and §827.04.” In ¶203 Plaintiff also alleges that Defendant’s “tortious commission of sexual battery upon were (sic) done willfully and maliciously.”¶
Supporting Defendant’s position that Plaintiff has failed to state a cause or action in Count XXXI, 18 U.S.C. §§2241(c), not §2241 in its entirety, as discussed above, is one of the predicate acts, along with 2242, 2243, 2421, and 2423, designated in the federal civil remedy statute – 18 U.S.C. §2255. Plaintiff attempted and failed to allege such a claim in the previous counts. Defendant can find no criminal offenses in any “Chapter 800 of the Federal Codes” which give rise to a civil cause of action.¶
The same is true for Plaintiff’s reference to the Florida Statutes. Not one of the statutes referenced creates a private cause of action or affords a civil remedy on behalf of the alleged victim of the criminal offense.$^1$ (Except for Florida Statute §39.01, all of the statutes referenced by Plaintiff are contained Title XLVI. Crimes of the Florida Statutes). The referenced criminal statutes set forth acts subject to criminal prosecution and the criminal penalties therefor, if proven. See generally, Am. Home Assurance Co. v. Plaza Materials Corp., 908 So.2d 360, 374 (Fla. 2005) (“not every statutory violation carries a civil remedy”); Miami Herald Pub. Co. v. Ferre, 636 F.Supp. 970 (S.D. Fla. 1985)(violation of Florida’s criminal extortion statute does not give rise to civil cause of¶
1 Florida Statutes §§796.03 – Procuring person under age 18 for prostitution; 796.04 – Forcing, compelling, or coercing another to become a prostitute; 796.045 (which did not become effective until Oct. 1, 2004) – Sex trafficking; penalties; 796.07 – Prohibiting prostitution, etc.; evidence; penalties; definitions; and §39.01, entitled “Definitions,” is contained in Title V – Judicial Branch, Chapter 39 - “Proceedings relating to Children.”¶
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v. Epstein, et al.¶
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Defendant EPSTEIN, but rather allows Plaintiff to attempt to assert a single civil remedy if she can prove a violation of any of the statutory enumerated predicate acts. Further, Plaintiff has failed to sufficiently allege a requisite predicate act under §2255. In addition, §2255 does not allow for recovery of punitive damages. Count XXXI is also subject to dismissal with prejudice for failure to state a cause of action, as Plaintiff has failed to allege a legally viable or recognizable cause of action.¶
WHEREFORE, Defendant requests that this Court grant his motion to dismiss Counts I through XXXI, or alternative motion for more definite statement, and motion to strike.¶
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 by CM/ECF on this 2nd day of March, 2009:¶
Richard Horace Willits, Esq.¶
Richard H. Willits, P.A.¶
2290 10th Avenue North¶
Suite 404¶
Lake Worth, FL 33461¶
Fax:¶
Counsel for Plaintiff .M.A.¶
Jack Scarola, Esq.¶
Jack P. Hill, Esq.¶
Searcy Denney Scarola Barnhart Shipley, P.A.¶
2139 Palm Beach Lakes Boulevard¶
West Palm Beach, FL 33409¶
Fax:¶
Jack Alan Goldberger, Esq.¶
Atterbury Goldberger & Weiss, P.A.¶
250 Australian Avenue South¶
Suite 1400¶
West Palm Beach, FL 33401-5012¶
Counsel for Defendants Jeffrey Epstein and¶
Bruce Reinhart, Esq.¶
Bruce E. Reinhart, P.A.¶
250 S. Australian Avenue¶
Suite 1400¶
West Palm beach, FL 33401¶
Fax:¶
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attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to do so, shall be fined under this title and imprisoned for not less than 30 years or for life. If the defendant has previously been convicted of another Federal offense under this subsection, or of a State offense that would have been an offense under either such provision had the offense occurred in a Federal prison, unless the death penalty is imposed, the defendant shall be sentenced to life in prison.¶
§ 2242. Sexual abuse¶
Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly-or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life.¶
(1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or¶
(2) engages in a sexual act with another person if that other person is-or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life.¶
(A) incapable of appraising the nature of the conduct; or¶
(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act;¶
§ 2243. Sexual abuse of a minor or ward¶
(a) Of a minor.—Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who-or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.¶
(1) has attained the age of 12 years but has not attained the age of 16 years; and¶
(2) is at least four years younger than the person so engaging;¶
(b) Of a ward.—Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who is—¶
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(c) Engaging in illicit sexual conduct in foreign places.—Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.¶
(d) Ancillary offenses.—Whoever, for the purpose of commercial advantage or private financial gain, arranges, induces, procures, or facilitates the travel of a person knowing that such a person is traveling in interstate commerce or foreign commerce for the purpose of engaging in illicit sexual conduct shall be fined under this title, imprisoned not more than 30 years, or both.¶
(e) Attempt and conspiracy.—Whoever attempts or conspires to violate subsection (a), (b), (c), or (d) shall be punishable in the same manner as a completed violation of that subsection.¶
(f) Definition.—As used in this section, the term “illicit sexual conduct” means (1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age.¶
(g) Defense.—In a prosecution under this section based on illicit sexual conduct as defined in subsection (f)(2), it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years.¶