EFTA00194816¶
Motion For More Definite Statement and To Strike, Rule 12(e) and (f), F.R.C.P.¶
As noted above, Plaintiff alleges that she was 17 year old high school student as of January, 2004, and that the alleged conduct involving EPSTEIN occurred “between approximately January 2004 and May 2005. Thus, Plaintiff had to be 18 (no longer a minor) by January of 2005. Under the principles of statutory construction, the language of §2255(a) is clear – “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.”¶
As Plaintiff’s date of birth is significant to her §2255 claim, she should be required to more definitely state her date of birth so that Defendant and this Court are able to determine precisely when she reached the age of majority. (The age of majority under both federal and state law is 18 years old. See 18 U.S.C. §2256(1), defining a “minor” as “any person under the age of eighteen years;” and §1.01, Definitions, Fla. Stat., defining “minor” to include “any person who has not attained the age of 18 years.”) In addition, when Plaintiff reached the age of majority may impact her ability to even assert a §2255 claim. See §2255(b).¶
To the extent that Plaintiff is relying on any alleged conduct that occurred after her 18 birthday as an element of her §2255 claim, such allegations should be stricken as immaterial and she should be required to more definitely state the dates of the alleged conduct. See Rule 12(f). Defendant also seeks to strike ¶¶10, 11, 12, 13, 14, 15, and 16,¶
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EFTA00194817¶
of Plaintiff’s Complaint as immaterial and impertinent. None of the allegations in those paragraphs specifically pertain to the Plaintiff. Not until ¶17 does Plaintiff assert allegations pertaining to her and the conduct of Defendant directly involving her. What EPSTEIN may or may not have allegedly done with respect to other alleged girls does not effect Plaintiff’s claim brought pursuant to §2255. The allegations in ¶10-16 are not related to the elements of Plaintiff’s §2255 claim and, thus, are required to be stricken.¶
Conclusion¶
Pursuant to the above, Plaintiff entire action is required to be dismissed. 18 U.S.C. §2255 allows for a single recovery of the actual damages sustained in proven; neither the “actual damages” sustained not the statutory minimum is subject to duplication or multiplication on a per violation or per count or per incident basis. Also, the statute in effect during the time of the alleged conduct applies, not the version as amended, effective July 27, 2006. Count VI is also required to be dismissed as it relies on a statutory predicate act that did not take effect until 2006. In addition, Plaintiff should be required to more definitely state her date of birth, and any conduct occurring after her $18^{th}$ birthday should be stricken, and ¶10 – 16 of the Complaint should also be stricken.¶
WHEREFORE, Defendant requests that this Court dismiss the entire action against him, and further grant his motion for more definite statement and to strike.¶
Robert D. Critton, Esq.¶
Attorney for Defendant¶
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¶
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EFTA00194818¶
being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this ___ day of___, 2010.¶
Robert C. Josefsberg, Esq.¶
Katherine W. Ezell, Esq.¶
Podhurst Orseck, P.A.¶
25 West Flagler Street, Suite 800¶
Miami, FL 33130¶
305 358-2800¶
Fax: 305 358-2382¶
Counsel for Plaintiff¶
Jack Alan Goldberger, Esq.¶
Atterbury Goldberger & Weiss, P.A.¶
250 Australian Avenue South¶
Suite 1400¶
West Palm Beach, FL 33401-5012¶
561-659-8300¶
Fax: 561-835-8691¶
Counsel for Defendant Jeffrey Epstein¶
Respectfully submitted,¶
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¶
561/842-2820 Phone¶
561/515-3148 Fax¶
(Counsel for Defendant Jeffrey Epstein)¶
18 USCA §2255 (1999-July 26, 2006):¶
PART I—CRIMES CHAPTER 110—SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN §2255. Civil remedy for personal injuries¶
(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¶
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EFTA00194819¶
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.¶
CREDIT(S)¶
[Added Pub.L. 99-500, Title I, § 101(b) [Title VII, § 703(a)], Oct. 18, 1986, 100 Stat. 1783-75, and amended Pub.L. 99-591, Title I, § 101(b) [Title VII, § 703(a)], Oct. 30, 1986, 100 Stat. 3341-75; Pub.L. 105-314, Title VI, § 605, Oct. 30, 1998, 112 Stat. 2984.]¶
18 U.S.C. §2255, as amended 2006, Effective July 27, 2006:¶
PART I—CRIMES¶
CHAPTER 110—SEXUAL EXPLOITATION AND OTHER ABUSE OF¶
CHILDREN¶
§ 2255. Civil remedy for personal injuries¶
(a) In general.—Any person who, while a minor, was 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, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney’s fee. Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than $150,000 in value.¶
(b) Statute of limitations.—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.¶
CREDIT(S)¶
[Added Pub.L. 99-500, Title I, § 101(b) [Title VII, § 703(a)], Oct. 18, 1986, 100 Stat. 1783-75, and amended Pub.L. 99-591, Title I, § 101(b) [Title VII, § 703(a)], Oct. 30, 1986, 100 Stat. 3341-75; Pub.L. 105-314, Title VI, § 605,¶
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EFTA00194820¶
Oct. 30, 1998, 112 Stat. 2984; Pub.L. 109-248, Title VII, § 707(b), (c), July 27, 2006, 120 Stat. 650.)¶
$ ^{2} $ Paragraphs 30, 34, 38, 43, 48, and 52 of Plaintiff’s Complaint alleges:¶
- As a direct and proximate result of the offenses enumerated in 18 U.S.C. §2255 being committed against the then minor Plaintiff by Defendant, Plaintiff has in the past suffered, and will in the future continue to suffer, physical injury, pain and suffering, emotional distress, psychological and/or psychiatric trauma, mental anguish, humiliation, confusion, embarrassment, loss of educational opportunities, loss of self-esteem, loss of dignity, invasion of her privacy, separation from her family, and other damages associated with Defendant manipulating and leading her into a perverse and unhealthy way of life. The then minor Plaintiff incurred medical and psychological expenses, and Plaintiff will in the future suffer additional medical and psychological expenses. Plaintiff has suffered a loss of income, a loss of the capacity to earn income in the future, and a loss of the capacity to enjoy life. These injuries are permanent in nature, and Plaintiff will continue to suffer these losses in the future.
The “Wherefore” clauses in each of the six counts are also identical —¶
WHEREFORE Plaintiff demands judgment against Defendant for all damages available under 18 U.S.C. §2255, including, without limitation, actual and compensatory damages, attorney’s fees, costs of suit, and such other relief this Court deems just and proper, and hereby demands trial by jury on all issues triable as of right by a jury.¶
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EFTA00194821¶