Epstein's notice of removal of an accuser's civil lawsuit to federal court, July 2008

EFTA00180356¶

Case 9:08-cv-80804-KAM Document 1 Entered on FLSD Docket 07/21/2008¶

F P A G E Y I O D 1 0 0 D.C. ELECTRONIC¶

July 18, 2008¶

UNITED STATES DISTRICT COURT¶

SOUTHERN DISTRICT OF FLORIDA¶

08-80804-Civ-MARRA/JOHNSON¶

STEVEN M. LARIMORE¶

CLERK U.S. DIST. CT.¶

S.D. OF FLA. - MIAMI¶

JANE DOE,¶

a/k/a JANE DOE #1,¶

Plaintiff,¶

VS.¶

JEFFREY EPSTEIN, and¶

Defendants.¶

NOTICE OF REMOVAL¶

In accordance with 28 U.S.C. §§ 1441, 1446, and 1332(a)(1), the defendants, Jeffrey Epstein, , and , hereby remove this action$^1$ from¶

Palm Beach County Circuit Court to the United States District Court for the¶

Southern District of Florida, and respectfully state as follows:¶

Introduction¶

Six months ago, this plaintiff filed virtually the identical lawsuit in this¶

Court. See Jane Doe #1 v. Epstein, Case No. 08-cv-80069-KAM (S.D. Fla. filed¶

1 Doe v. Epstein et al., Case No. 50 2008 CA 006596 XXXX MB (Fla. 15th Cir. Ct. filed Mar. 6, 2008).¶

Lewis Tein P.L.¶

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redacted, is attached hereto (Exhibit A). Two days later, counsel for Jane Doe #1 filed a notice of voluntary dismissal without prejudice in the First Federal Action.¶

See Doe #1 v. Epstein, Case No. 08-CV-80069-KAM, DE 9.¶

Two weeks later (March 6, 2008), having changed lawyers, Jane Doe #1 refiled her complaint in Florida Circuit Court as the instant case, adding two nominal defendants: Mr. Epstein’s personal secretary, and one of Jane Doe #1’s contemporaries. These defendants have nothing to do with the plaintiff’s case against Mr. Epstein, except that the presence of as a defendant in this new case, because she is a citizen of Florida (Am. Compl. § 4), would ostensibly prevent complete diversity.²¶

As discussed below, however, was named in the refiled lawsuit only to destroy diversity jurisdiction, and to prevent any application of 18 U.S.C. § 3509(k), a mandatory stay provision applicable in federal court .³ Haley¶

2 Defendant Kellen is a citizen of New York (Am. Compl. \footnote{5}), and is therefore a nonresident defendant for purposes of diversity jurisdiction and removal.¶

$ ^{3} $ Section 3509(k) of Title 18, United States Code, provides as follows:¶

If, at any time that a cause of action for recovery of compensation for damage or injury to the person of a child exists, a criminal action is pending which arises out of the same occurrence and in which the child is the victim, the civil action shall be stayed until the end of all phases of the criminal action and any mention of the civil action during the criminal proceeding is prohibited. As used in this subsection, a criminal action is pending until its final adjudication in the trial court.¶

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Lewis Tein PL¶

MONTREAL STATE¶

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Doe” lawsuits presently pending against Epstein, filed by this plaintiff’s former lawyer.¶

This case is properly removed to federal court, first, because there is complete diversity among the real parties-in-interest, second, because the amount in controversy exceeds $75,000, and third, because this Notice complies with the requirements of 28 U.S.C. § 1446.¶

Discussion¶

A. This case is properly removable because it falls within the original jurisdiction of the United States District Court for the Southern District of Florida.¶

A state-court case is properly removable when “it could have been brought, originally, in a federal district court.” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 83 (2005) (citing 28 U.S.C. § 1441(a)). This case was originally filed in federal district court, and it is the same case today. Even though it was reconfigured to look like a state-court lawsuit, this action falls squarely within the bounds of the diversity-jurisdiction statute. See 28 U.S.C. § 1332(a)(1) (establishing that federal district courts have original jurisdiction over cases where the amount in controversy [is more than $75,000] … and [when the controversy] is between citizens of different states”).¶

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Lewis Tein Pt. MICHELLE VILLA¶

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To cement this point, the Eleventh Circuit Court of Appeals has said that “[w]hen [a] complaint does not claim a specific amount of damages, removal from state court is proper if it is facially apparent from the complaint that the amount in controversy exceeds the jurisdictional requirement.” Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). This case meets that standard, and satisfies the first prong of diversity jurisdiction.¶

2. There is complete diversity among the real parties to this controversy.¶

Diversity jurisdiction requires complete diversity. Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990) (“Since its enactment, we have interpreted the diversity statute to require ‘complete diversity’ of citizenship.” (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267–68 (1806))). See also MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234, 1239 (11th Cir. 2005) (stating that “[c]omplete diversity requires that no defendant in a diversity action be a citizen of the same state as any plaintiff”). As demonstrated below, this case satisfies the statutory requirement of complete diversity.¶

(a) Plaintiff Jane Doe is a citizen of Florida. (Am. Compl. ¶ 1.) $ ^{6} $¶

• Jane Doe may, in fact, be a citizen of Georgia, not Florida, as she pled in her Amended Complaint. See New York Post, Jul. 1, 2008 (reporting that “On his way into court [for his state-court guilty plea on June 30], Epstein was served with a copy of a lawsuit by Doe, who has since moved to another state.”); Jane Doe Depo. at 77, 112 (indicating that

Lewis Tein PL MICHAEL N.Y. 1008¶

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Oct. 15, 2007) (Moreno, J.) (citing Riley v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 292 F.3d 1334, 1337 (11th Cir. 2002)); accord, e.g., Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir. 1979) (denying motion to remand where two resident defendants were joined for the fraudulent purpose of defeating federal jurisdiction).¶

In this case, the plaintiff relies on her original allegations to support three causes of action against:¶

• civil conspiracy (Am. Compl. § 20–23);

• Intentional Infliction of Emotional Distress (Am. Compl. § 23–28); and civil RICO (Am. Compl. § 29–34). These allegations, however, do not support these claims, or any other theory of liability that would allow recovery against Cf. Parks v. The New York Times Co., 308 F.2d 474, 477 (5th Cir. 1962) (observing that “determination of fraudulent joinder is to be based on whether there was a real intention on colorable grounds to procure a joint judgment”) (emphasis added).$^8$

(a) Nonresident defendants have a right of removal.¶

The removal statute was enacted specifically “to protect defendants.” Legg v. Wyeth, 428 F.3d 1317, 1325 (11th Cir. 2005). Cf., e.g., Picquet v. Amoco Prod. Co., 513 F. Supp. 938, 941 (M.D. La. 1981) (explaining that courts developed the fraudulent-joinder doctrine to protect “the right [of removal] granted to¶

8 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.¶

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Lewis Tein PL. MISSION VILLA¶

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action arising from an alleged sexual assault of a minor “shall be stayed until the end of all phases of [any] criminal action”) (emphasis added). In this case, there is a parallel federal criminal grand jury action pending in the Southern District of Florida, In re Grand Jury, No. FGJ 07-103(WPB) (S.D. Fla.), which arises out of the same allegations pled here. Thus, in resorting to fraudulent joinder, the plaintiff has sought to avoid any application of this otherwise controlling statute.¶

Cf. Doe v. Francis, No. 5:03 CV 260 MCR/WCS, 2005 WL 517847, at 1-2 (N.D. Fla. Feb. 10, 2005) (staying civil diversity action over plaintiffs’ objections on grounds that “the language of 18 U.S.C. § 3509(k) is clear that a stay is required in a case … where a parallel criminal action is pending which arises from the same occurrence involving minor victims”) (emphasis added).¶

Even outside the context of a mandatory federal statute, “the Supreme Court [has] admonished [that] ‘the Federal courts should not sanction devices intended to prevent a removal to a Federal court where one has that right, and should be equally vigilant to protect the right to proceed in the Federal court.’” Legg, 428 F.3d at 1325 (citing Wecker v. Nat’l Enameling & Stamping Co., 204 U.S. 176, 186 (1907)). See also id. (observing that “Congress‘did not extend [to defendants a right of removal] with one hand, and with the other give plaintiffs a bag of tricks¶

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Lewis Tein PL 3059 GRAND AVENUE, SUITE 340, COCONUT GROVE, FLORIDA 33133¶

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EFTA00180362¶

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complaint contains four claims for relief, the first and second claims state only one cause of action”) (emphasis added). Using her original allegations and adding nothing, Jane Doe has tried to add claims against for civil conspiracy (Am. Compl. ¶ 20–23), Intentional Infliction of Emotional Distress (Am. Compl. ¶ 24–28), and civil RICO (Compl. ¶ 29–34) in order to append a nondiverse defendant to her Complaint. These claims, however, are untenable under Jane Doe’s own allegations, and therefore cannot be used to destroy diversity jurisdiction.¶

(b) There is no possibility that the plaintiff can establish a cause of action against under Florida law.¶

(i) The conspiracy claim against Robson must fail.¶

As a general rule, “[a]n actionable conspiracy [under Florida law] requires¶

an actionable underlying tort or wrong.” Wright v. Yurko, 446 So. 2d 1162, 1165¶

(Fla. 5th DCA 1984) (citations omitted) (emphasis added). $ ^{10} $¶

10 This case is governed by the general rule. Cf. Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547, 550 (Fla. 1977) (noting that while there is “ordinarily … no independent tort for conspiracy,” there is a narrow exception to this rule when “the plaintiff can show some peculiar power of coercion possessed by the conspirators by virtue of their combination”) (emphasis added). See generally Liappas v. Augoustis, 47 So. 2d 582, 583 (Fla. 1950) (observing that “instances of conspiracy which is in itself an independent tort are rare and should be added to with caution”) (quoting Fleming v. Dane, 22 N.E.2d 609, 611, (Mass. 1939))) (emphasis added). Plainly, this case involves the general rule, not the narrow exception, because only one person could have caused Jane Doe’s injuries. Cf. Martin v. Marlin, 529 So. 2d 1174, 1179 (Fla. 3d DCA 1988) (upholding¶

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Lewis Tein PL. WINSY MILW¶

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Buchanan v. Miami Herald Publ’g Co., 230 So. 2d 9, 12 (Fla. 1969) (holding that where Count I of the complaint had failed to state a cause of action for malicious prosecution, there could be no civil-conspiracy claim in Count II “based on the allegations of Count I”). Because the statute she expressly pleads as the basis for Count I, Chapter 800, Florida Statutes, provides no civil remedy, Jane Doe cannot prevail on Count I. Therefore, she cannot prevail on her claim for conspiracy (Count II) to violate Chapter 800, Florida Statutes (Count I).¶

(ii) The plaintiff cannot prevail against nondiverse defendant on her claim for Intentional Infliction of Emotional Distress (IIED).¶

Even if the plaintiff, for the sake of argument, can assert an IIED claim against Jeffrey Epstein, the plaintiff still does not have a cause of action for IIED against . First, the plaintiff cannot recover damages in connection with her own illegal conduct; and second, the plaintiff’s purported IIED claim fails as a matter of law.¶

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Lewis Tein PL MIDWAY - NEW YORK¶

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omitted) (emphasis added); Turner v. Anderson, 704 So. 2d 748, (Fla. 4th DCA 1998) (“[N]o public policy should allow appellant to recover damages as a result of engaging in criminal conduct such as occurred in this case.”). Cf. Ewell v. Daggs, 108 U.S. 143, 149 (1883) (stating that “[n]o court will lend its aid to a [plaintiff] who founds [a] cause of action upon an immoral or an illegal act”) (quoting Holman v. Johnson, 98 Eng. Rep. 1120 (K.B. 1775)); see also id. (explaining that this policy is ““not for the sake of the defendant, but because [the courts] will not lend their aid to such a plaintiff”* (quoting Holman, 98 Eng. Rep. 1120)) (emphasis added); Balas v. Ruzzo, 703 So. 2d 1076, 1082 (Fla. 5th DCA 1997) (Harris, J., concurring) (remarking in the context of an action brought against an alleged prostitution house that “the court should continue its tradition of not interceding in civil conflicts involving transactions that are either illegal or are against public policy”).¶

Based on the foregoing, the plaintiff cannot blame someone else for the consequences of her own criminal conduct. Cf. Feld & Sons, Inc. v. Pechner, Dorfman, Wolffe, Rounick and Cabot, 458 A.2d 545, 552 (Pa. Super. Ct. 1983) (holding that law-firm clients could not recover damages flowing from their own criminal acts, even though clients’ lawyers had suggested the unlawful conduct to begin with). See also Turner v. Anderson, 704 So. 2d 748, 751 (Fla. 4th¶

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(iii) The plaintiff cannot prevail on her claim for civil remedies for criminal practices or racketeering (“civil RICO”) pled in Count IV.¶

A cause of action under section 772.104, Florida Statutes (“Civil Remedies for Criminal Practices”) requires a showing of direct injury. Even assuming for the sake of argument that Jane Doe can establish that the defendants engaged in a “pattern of criminal activity,” she cannot establish that she was directly injured by those activities.¶

Section 772.104 allows someone to bring a civil RICO claim only if “he or she has been injured by reason of” any RICO violation. § 772.104, Fla. Stat. (2007). Here, the allegations in Count IV, even if they are true, do not add up to a civil RICO claim because there is no proximate cause between the purported “pattern of criminal activity” and Jane Doe’s alleged injuries.¶

In a doomed attempt to satisfy the extremely high burden of pleading civil RICO under Florida law, the Amended Complaint lists a series of violations rooted in Florida’s prostitution statutes. (Am. Compl. ¶ 31.) According to the Amended Complaint, the defendants participated in a criminal enterprise … or conspir[acy]” (Am. Compl. ¶ 30) over an unspecified length of time “to repeatedly find and bring [Jeffrey Epstein] underage girls … in order for Epstein to solicit, coerce, entice, compel, or force such girls in acts of prostitution and/or lewdness” (Am.¶

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where petitioners alleged that they had “suffered emotional pain, anguish, humiliation, insult, indignity, loss of self-esteem, inconvenience, hurt and emotional distress” as a result of being forced repeatedly, over time, to “perform sexual acts to retain their employment”). Here, even if the Amended Complaint can be read to plead that the defendants schemed to solicit other massages from other people (see, e.g., Am. Compl. 9, 11, 12, 32), those activities are not alleged in any way to have impacted Jane Doe. Cf., e.g., Palmas Y Bambu, S.A. v. E.I. Dupont De Nemours & Co., Inc., 881 So. 2d 565, 570 (Fla. 3d DCA 2004) (holding that ““indirect injuries, that is injuries sustained not as a direct result of predicate acts … will not allow recovery under Florida RICO.”” (quoting O’Malley v. St. Thomas Univ., Inc., 599 So. 2d 999, 1000 (Fla. 3d DCA 1992)))¶

(emphasis added).¶

Because the Amended Complaint does not satisfy the direct-injury requirement under Florida’s RICO law, Jane Doe has failed to allege a cause of action against for violation of section 772.103, Florida Statutes.¶

B. This Notice satisfies the procedural requirements of 28 U.S.C. § 1446.¶

1. This notice of removal is timely.

In accordance with 28 U.S.C. § 1446, this notice of removal is timely. Only defendant Epstein has been served with process. Defendants¶

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Lewis Tein PL MINISTRY OF EDUCATION¶

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WHEREFORE, the Defendants, Jeffrey Epstein,¶

h, remove this case from Palm Beach Circuit Court to the United States¶

District Court for the Southern District of Florida.¶

Respectfully submitted,¶

LEWIS TEIN, P.L.¶

3059 Grand Avenue, Suite 340¶

Coconut Grove, Florida 33133¶

Tel:¶

Fax:¶

By:¶

GUY A. LEWIS¶

Fla. Bar No. 623740¶

MICHAEL R. TEIN¶

Fla. Bar No. 993522¶

ATTERBURY, GOLDBERGER & WEISS, P.A.¶

250 Australian Avenue South, Suite 1400¶

West Palm Beach, Florida 33401¶

By: Jack A. Goldberger¶

Fla. Bar No. 262013¶

Attorneys for Defendant Jeffrey Epstein¶

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Lewis Tein PL¶

MISSISSA-ALABAMA¶

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Service List¶

Theodore J. Leopold, Esq.¶

Ricci-Leopold, P.A.¶

2925 PGA Blvd., Suite 200¶

Palm Beach Gardens, FL 33410¶

Fax: 561 697 2383¶

Counsel for Plaintiff Jane Doe¶

Douglas M. McIntosh, Esq.¶

Jason A. McGrath, Esq.¶

McIntosh, Sawran, Peltz & Cartaya, P.A.¶

Centurion Tower¶

1601 Forum Place, Suite 1110¶

West Palm Beach, Florida 33401¶

Fax. 561 682-3206¶

Counsel for Defendant¶

Bruce E. Reinhart, Esq.¶

Bruce E. Reinhart, P.A.¶

250 Australian Avenue South¶

Suite 1400¶

West Palm Beach, Florida 33401¶

Fax. 561 828 0983¶

Counsel for Defendant¶

Robert D. Critton, Esq.¶

Michael J. Pike, Esq.¶

Burman, Critton, Luttier &¶

Coleman, LLP¶

515 N. Flagler Drive, Suite 400¶

West Palm Beach, Florida 33401¶

Fax. 561 515 3148¶

Co-Counsel for Jeffrey Epstein¶

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Lewis Tein PL.¶

MIDWEST AVE. 1200¶

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