Draft: efta02770381

IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN
AND FOR PALM BEACH COUNTY,
FLORIDA¶

JEFFREY EPSTEIN,¶

Plaintiff,¶

vs.¶

SCOTT ROTHSTEIN, individually, and
[REDACTED] J. [REDACTED], individually,¶

Defendants.¶

CIVIL DIVISION AG¶

CASE NO. 502009CA040800XXXXMB¶

FILED
2011 DEC 12 AM 10:02
SHARON R. BOCK, CLERK
PALM BEACH COUNTY, FL
CIRCUIT CIVIL¶

PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S
MOTION TO DISMISS SECOND AMENDED COUNTERCLAIM
AND INCORPORATED MEMORANDUM OF LAW¶

Plaintiff/Counter-Defendant, JEFFREY EPSTEIN ("Epstein"), by and through his undersigned counsel, hereby moves to dismiss the Second Amended Counterclaim of the Defendant/Counter-Plaintiff, [REDACTED] J. EDWARDS ("[REDACTED]"), and in support thereof states as follows:¶

I. SUMMARY OF ARGUMENT¶

[REDACTED] Second Amended Counterclaim ("Counterclaim") should be dismissed because [REDACTED] has added nothing substantively to distinguish this Counterclaim from the Amended Counterclaim that this Court has already dismissed and, just as was the case with [REDACTED] Amended Counterclaim, this Counterclaim fails to state an actionable claim against Epstein for abuse of process or malicious prosecution. [REDACTED] failed to substantively address any of the requirements set forth in this Court's prior Order of November 21, 2011 dismissing his Amended Counterclaim and stating what needed to be addressed in a subsequent amended pleading. In fact, the changes made are minimal and entirely superficial. Count I still fails to state a valid¶

abuse of process claim because it alleges that Epstein filed insufficient claims against and it does not contain any factual allegations of any specific improper process by Epstein unrelated to the pending litigation. Count II still fails to state a valid claim for malicious prosecution because it lacks operative factual allegations that there was a bona fide termination of an original proceeding in favor of and that such original proceeding was without merit.¶

II. BACKGROUND¶

In August 2011, Epstein filed a Second Amended Complaint which contained a single count against for abuse of process and a single count against Rothstein for conspiracy to commit abuse of process. moved to dismiss the Second Amended Complaint. At the September 28, 2011 hearing on MR motion to dismiss the Second Amended Complaint, the Court explained that abuse of process required improper use of process after it issued, and expressed "serious concerns" as to whether la Counterclaim pled a viable claim for abuse of process. (Hr'g Tr. 9/.28/2011 at 25).¶

On October 4, 2011, filed an Amended Counterclaim which contained a claim against Epstein for abuse of process (Count I) and a claim for malicious prosecution (Count II). On November 21, 2011, the Court granted Epstein's Motion to Dismiss Edward's Amended Counterclaim and required specific pleadings of the alleged improper or perverted use of process and ulterior motive or purpose. The Court also found that Count II failed to allege a specific bona fide termination of prior prosecution, and, additionally, that Count II impermissibly "incorporates all previous allegations." As is explained below, failed to address any of the deficiencies found by this Court in anything other than a very superficial and insubstantive manner.¶

Count I still alleges inter alia that Epstein invoked his Fifth Amendment right against self- incrimination (16); notwithstanding Epstein's "intimidation" tactics, MI clients have continued to prosecute their claims (17); has not engaged in any unethical or improper conduct (18); Epstein filed civil claims against and others to intimidate them (19); Epstein knew and has known that his prior Complaint had no factual support and could not be prosecuted "to a successful conclusion" (112; see also ¶110 and 11); in filing and "continuing to prosecute each of the claims" against Epstein acted maliciously and "to extort into abandoning the claims he was prosecuting against (¶19, 10 and 14); and each pleading, motion, subpoena and request for production by Epstein was intended to "advance Epstein's efforts at extortion . . . and constituted a perversion of process after its initial service." (116). Nothing has changed. The wording is almost identical, with the exception of a few additional general and conclusory allegations regarding motive and a reference to the docket sheet of Epstein's filings in this case, claiming they are all abuses of process.¶

recycled malicious prosecution claim (Count H) is just as unresponsive to the Court's Order, incorporating all the allegations of his abuse of process claim not by reference as he did the last time in the Amended Counterclaim, but by simply restating the text of those very same paragraphs, which is indistinguishable from the deficiency cited by this Court in its November 21, 2011 Order. As did in the previous Amended Counterclaim, he made the nearly identical allegation in this Counterclaim which the Court rejected as insufficient in the¶

Amended Counterclaim, that the abandonment "constitutes a specific bona fide termination in M ' favor of the prior prosecution of each abandoned claim." More specifically, repeats the same allegations that:¶

After unsuccessful efforts to defend and amend his maliciously filed and prosecuted claims over a period of almost two years, Epstein abandoned the claims described in Paragraph 27 except for an ongoing effort to salvage 's abuse of process claim. That abandonment brings to successful conclusion defense against each of the other abandoned claims. (%32)¶

Abandonment of claims while the lawsuit remains cannot be, as shown below, the basis of a malicious prosecution claim.¶

seeks damages for abuse of process and malicious prosecution "including but not limited to" injury to reputation, interference in his professional relationships, the loss of the value of his time "required to be directed from his professional responsibilities," and the cost of defending against Epstein's claims: (1117 and 33).¶

III. ARGUMENT¶

A. COUNT I OF THE SECOND AMENDED COUNTERCLAIM SHOULD BE DISMISSED FOR FAILURE TO STATE A VALID CLAIM FOR ABUSE OF PROCESS¶

1. Legal Standards¶

la ' second amended abuse of process claim should be dismissed again because it is not substantively different from, and is as legally insufficient as, his abuse of process claim previously dismissed by this Court. Abuse of process under Florida law requires pleading and proof of the following three elements: 1) an illegal, improper or perverted use of process; 2) an ulterior motive or purpose in exercising the illegal, improper or perverted process; and 3)¶

resulting damages. See, e.g., S&I Investments v. Payless Flea Mkt., 36 So. 3d 909, 917 (Fla. 41h DCA 2010); Valdes v. GAB Robins North America, Inc., 924 So. 2d 862, 867 n.2 (Fla. 3d DCA 2006). In addition, it "is a fundamental principle of pleading that the complaint, to be sufficient, must allege ultimate facts as distinguished from legal conclusions which, if proved, would establish a cause of action . . ." Maiden v. Carter, 234 So. 2d 168, 170 (Fla. Is' DCA 1970); see also v. Gardens by the Sea South Condominium Ass'n, 424 So. 2d 181, 183 (Fla. 4th DCA 1983) ("Florida uses what is commonly considered as a notice pleading concept and it is a fundamental rule that the claims and ultimate facts supporting same must be alleged. The reason for the rule is to appraise [sic] the other party of the nature of the contentions that he will be called upon to meet, and to enable the court .to decide whether same are sufficient.") The Counterclaim does not meet this basic requirement.¶

2. Failure To Allege Illegal, Improper or Perverted Use of Process¶

With regard to the first element of the tort of abuse of process, it is axiomatic that "The mere filing of a complaint and having process served is not enough to show abuse of process.' [Citation omitted] The plaintiff must prove improper use of process after it issues." S&I Investments, 36 So. 3d at 917 (quotation omitted) (emphasis added). See also Valdes, 924 So. 2d at 867 ("Valdes' failure to allege any improper willful acts by the appellees during the course of the prior action requires dismissal of the abuse of process claim...."); Yoder v. Adriatico, 459 So. 2d 449, 450 (Fla. 5'h DCA 1984) ("the tort of abuse of process is concerned with the improper use of process after it issues") (emphasis added); Cazares v. Church of Scientology, 444 So. 2d 442, 444 (Fla. 5'h DCA 1983) (holding that a cause of action for abuse of process would not lie¶

where the Church alleged no act other than the wrongful filing of a lawsuit); Peckins v. Kaye, 443 So. 2d 1025, 1026 (Fla. 2d DCA 1986) (counterclaim allegedly causing undue expenditure of time and money did not constitute abuse of process); McMurray v. U-Haul Co., 425 So. 2d 1208, 1209 (Fla. 4'h DCA 1983) (same); Blue v. Weinstein, 381 So. 2d 308, 3t (Fla. 3d DCA 1980) ("[N]o abuse of the process apart from the complaint is pled effort to do so amounts to nothing more than a thinly disguised malicious prosecutione.").¶

second amended abuse of process claim :t Epstein filed baseless claims against him (see 119 through 15) in an attempt touddate and "extort" into abandoning the claims he was prosecuting against Epstein. (1114 and 15). Because abuse of process claim is based on the filing of allegedly insufficient claims, it fails to state a valid claim for relief. See, e.g., Della-Donna, 512 So. 2d at 1055; McMurray, 425 So. 2d at 1209 (counterclaim for abuse of process was properly dismissed with prejudice when based on filing of complaint "for a multitude of improper purposes"). "The maliciousness or lack of foundation of the asserted cause of action itself is actually irrelevant to the tort of abuse of process." Cazares, 444 So. 2d at 444.¶

Although attempts to bolster his second amended abuse of process claim with conclusory allegations that the alleged "perversion of process" consists of "every" pleading Epstein has filed and "every motion, every request for production, every subpoena issued and every deposition taken" (116), that attempt cannot withstand this Motion to Dismiss any more than the identical attempt in the Amended Counterclaim could withstand the previous Motion to Dismiss. The only — and, frankly, completely insignificant — difference in this Counterclaim is M' addition of a reference to the docket sheet. This pathetic attempt to address the lack of specificity cited by the Court in dismissing MI Amended Counterclaim is substantively no different, because never alleges how or why such acts — which on their face do not constitute abuse of process — demonstrate a "perversion of process," or are illegal or improper. also fails to allege that such acts are not related to or in furtherance of the pending litigation. It is insufficient to say they constitute an abuse of process because the underlying action is baseless, particularly where Epstein's claim has survived a Motion to Dismiss. How, for example, can the mere filing of a motion by Epstein in the subject litigation — let alone every single motion and request for production — constitute perversion of process? "The plaintiff [ } must allege and prove that the process was used for an immediate purpose other than that for which it was designed." Biondo v. Powers, 805 So. 2d 67, 69 (Fla. 40% DCA 2002). Without specific factual allegations by Edwards as to what was illegal, improper or perverted about the process issued by Epstein after filing the Complaint in this action, the first element of abuse of process has not been met. simply cannot and does not succeed in stating an abuse of process claim with amorphous and conclusory allegations that each and every act undertaken by Epstein constitutes abuse of process, particularly where this Court has required specificity from Epstein in order to be able to address critical discovery issues. second amended abuse of process claim does not provide a "short and plain statement of the ultimate facts showing that the pleader is entitled to relief." Fla. R. Civ. P. 1.110(b). See also 424 So. 2d at 183.¶

In summary, the crux of claim is that the lawsuit itself is without merit and thus everything within it constitutes an abuse and should be dismissed. Count I is nothing more than an invalid malicious prosecution claim in disguise.¶

3. Failure To Allege An Ulterior Motive or Purpose¶

Nor does succeed in stating a valid abuse of process claim based on vague and unfounded allegations regarding ulterior motive or malicious intent in ¶4 that Epstein "effectively" conceded illicit sexual activity, in ¶5 that many-tjvil tits against Epstein remain pending, and in ¶¶6 and 7 that his "victims and their le I have been "intimidate[d] into abandoning legitimate claims." The allegations do not identify which suits remain pending, which victims and their legal counsel have been intimidated, or how settlements without admissions of liability "effectively conc illicit sexual activity." (¶4) In fact, Paragraphs 6 and 7 do not say that or his clients were intimidated. The allegations of intimidation against others have no bearing if in fact and his clients have not alleged that they were intimidated. Without specificity regarding who, what, where and when, Epstein cannot effectively fonnulate a response and the door will be open to discovery into matters not likely to lead to relevant evidence. Again, new allegations do not mask the fact that Count I is nothing more than an invalid malicious prosecution claim in disguise, as squarely demonstrated by the fact that all of abuse of process allegations are incorporated verbatim into his malicious prosecution claim.¶

Paragraphs 9 and 10, which are misguided efforts to address the element of ulterior motive, also fail because they are premised on an allegedly baseless lawsuit and the¶

inconvenience and cost of a baseless lawsuit, which are not grounds for abuse of process. As stated previously, the lack of foundation of an asserted cause of action is "irrelevant to the tort of abuse of process." Cazares, 444 So. 2d at 444. Allegations in Paragraph 9 relating "to requiring to expend time, energy, and resources on his own defense" cannot be part of an abuse of process claim, because a claim allegedly causing undue expenditure of time and money cannot constitute abuse of process. Peckins v. , at 1026.¶

Moreover, all of the allegations in Paragraphs 4 through 7 of this Counterclaim, wherein unsuccessfully attempts to lay a foundation for his abuse of process claim, refer to events that occurred before the filing of the Complaint. It is well established, however, that events that occur before the filing of a complaint and service of process are not sufficient to satisfy the element of ulterior motive or malice, which is the second element of the tort of abuse of process. See Marty v. Gresh, 501 So. 2d 87 (Fla. 1" DCA 1987) ("facts which speak to preprocess rather than post-process events...fail to advance appellee's cause of action for abuse of process.") See also MI Investments, 36 So. 3d at 917. Accordingly, abuse of process claim should be dismissed because the second element of the tort has not been properly alleged.¶

4. Failure to Plead Damages¶

Finally, damages claim — "including but not limited to" various elements of damages (¶17) — should be stricken. First, the open-ended phrase "including but not limited to" does not put Epstein on notice as to the specific damages that is claiming. This Court struck similar language from Epstein's Amended Complaint (See Hearing Tr., July 13, 2011 at¶

19-20). The same holds true here, where Epstein does not know what means. Me open-ended damages allegations should not be permitted.¶

In addition, M' demand for damages to reputation is a thinly-veiled and impermissible attempt to inject defamation into the litigation. Similarly, Edwards' demand for damages for "interference in his professional relationships" is a thinly-veiled and impermissible attempt to inject tortious interference into the litigation. Such kitchen-sink pleading denies Epstein due process and due notice. These are separate claims with separate defenses commingled in a single count, in violation of Fla. R. Civ. P. 1.110(f), which requires separate statements of claim. As no separate claims have been pleaded to justify the claimed damages, the claimed damages should be stricken in their entirety.¶

Next, there is no legal authority which permits to recover damages for abuse of process for the "loss of the value of his time required to be diverted from his professional responsibilities." A litigant cannot recover damages for the time spent defending a claim. See, e.g., Miami National Bank I. Nunez, 541 So. 2d 1259, 1260 (Fla. 3d DCA 1989) ("We find no precedent for awarding a litigant compensatory damages for her own participation in the preparation for litigation."); Maulden v. Corbin, 537 So. 2d 1085 (Fla. lu DCA 1989) (ruling that an attorney was not entitled to compensation for his time participating in litigation when he engaged counsel to represent him in the matter). Since has engaged Mr. Scarola from the outset of this case, cannot claim his time assisting counsel or participating in this case as damages.¶

Finally, seeks damages for the "cost of defending against [sic] Epstein's spurious and baseless claims?' While a party who recovers a judgment is entitled to taxable costs pursuant to §57.104, Fla. Stat., a party is not entitled to an award of attorney's fees unless there is a statutory or contractual entitlement pled and established. To the extent Edwards seek attorneys' fees, he has not plead any entitlement by statute or contract, and his claim should be denied. Florida Hurricane Protection and Awning, Inc. v. Pastina, 43 So. 3d 893 (Fla. 4th DCA 2010).¶

COUNT II OF THE SECOND AMENDED COUNTERCLAIM SHOULD BE DISMISSED FOR FAILURE TO STATE A VALID CLAIM FOR MALICIOUS PROSECUTION¶

In order to withstand this second challenge, recycled malicious prosecution claim would require pleading and proof of the following elements: "(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide tall:Zillion of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding." Alamo Rent-A-Car v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994) (emphasis added). A claim for malicious prosecution is defeated if a plaintiff fails to allege or establish any one of these six elements. Id.¶

A "bona fide termination" of the proceedings has been described as follows:¶

It is axiomatic that a plaintiff in a malicious prosecution case must, as an essential element of that cause of action, establish that the prior litigation giving rise to the malicious prosecution suit ended with a "bona fide termination" in that party's favor. That is a fancy phrase which means that the first suit, on which the malicious prosecution suit is based, ended in a manner indicating the original defendant's (and current plaintiffs) innocence of the charges or alleptions contained in the first suit, so that a court handling the malicious prosecution suit, can conclude with confidence, that the termination of the first suit was not only favorable to the defendant in that suit, but also that it demonstrated the first suit's lack of merit.¶

Doss v. Bank of Am., N.A., 857 So. 2d 991, 994 (Fla. 5th DCA 2003) (emphasis added).¶

Given the requirement that an original or prior proceeding terminate in favor of a malicious prosecution claimant, under settled Florida law "malicious prosecution may not be brought as a counterclaim when directed against the filing of some or all of the counts in the pending main action." Blue v. Weinstein, 381 So. 2d 308, 311 (Fla. 3d DCA 1980). The Blue Court upheld dismissals of a counterclaim of malicious prosecution directed at two counts of a seven count complaint previously dismissed by the Court.¶

That is precisely what has done for a second time in this case, despite this Court's admonition that must plead "a specific bona fide termination of the prior prosecution." As explained in Cazares, 444 So. 2d at 447, "Florida courts clearly hold that an action for malicious prosecution cannot be filed until the original action is concluded, thus precluding any counterclaims from being filed in the underlying action itself." See also Bieley v. Du Pont, Glore, Forgan, Inc., 316 So. 2d 66, 67 (Fla. 3d DCA 1975) ("A counterclaim for malicious prosecution or abuse of process cannot be maintained in a pending action since the abuse claimed is the pending suit which cannot be said to have terminated in favor of the¶

counter-claimant."); American Salvage & Jobbing Co. v. Salomon, 295 So. 2d 710, 712 (Fla. 3d DCA 1974) (a malicious prosecution counterclaim was properly dismissed where the complaint was still pending: "It is readily apparent that an action which is pending cannot be said to be terminated in favor of the counterclaimant.").¶

Based upon the foregoing authorities, malicious prosecution counterclaim again fails to state a valid claim for relief because there has been no termination of the "original proceeding" — by definition, a proceeding different from and prior to the present action — as absolutely required to state a claim for malicious prosecution. Once again, has not pleaded — and cannot plead — that "the first suit, on which the malicious prosecution suit is based, ended" Doss, 857 So. 2d at 994. (Emphasis added). Once again, has not pleaded and certainly cannot plead — that Epstein's pending suit against him has terminated in favor. Indeed, just as was true with Amended Counterclaim, this Counterclaim squarely violates the rule that "malicious prosecution may not be brought as a counterclaim when directed against the filing of some or all of the counts in the pending action." B/ue, 381 So. 2d at 311 ("[OJur decisions holding that malicious prosecution may not be brought as a counterclaim when directed against the filing of some or all of the counts in the pending main action are sound and are herein affirmed.").¶

Thus, unless and until Epstein's pending action against terminates in favor, any malicious prosecution claim by is invalid as a matter of law. Allegations in ¶32 of Count II that Epstein "abandoned each of the claims . . . except for an ongoing effort to salvage his abuse of process claim" and that "abandonment brings to successful conclusion¶

M r defense against each of the other abandoned claims" do not satisfy the requirement that plead that a prior action brought by Epstein terminated in M' favor. EM restatement of this same point that abandoned claims are a "termination" does nothing,to address the Court's requirement that the prior prosecution has been terminated. The mere dropping or amendment of claims in the course of pending litigation — a very common occurrence — does not, by definition, constitute the termination of a proceeding. See, e.g., American Salvage & Jobbing Co., Inc., 295 So. 2d at 712 ("It is readily apparent that an action which is pending cannot be said to be terminated in favor of the counterclaimant."). Moreover, the mere dropping or amending of a claim in ongoing litigation pursuant to an interlocutory order cannot constitute a favorable determination of the action or proceeding, as unquestionably required to state a claim for malicious prosecution. Absent allegations by that a prior proceeding terminated in his favor, his malicious prosecution claim is not actionable.¶

Finally, because adopts in Count II his damage claims alleged in Count 1. Epstein incorporates by reference his damages arguments as stated above.¶

In sum, Ill.' recycled claim for malicious prosecution in this Counterclaim is equally as defective as it was when dismissed in the Amended Counterclaim and should likewise be dismissed this time with prejudice.¶

C. COUNT H SHOULD BE DISMISSED BECAUSE IT CONTAINS COMMINGLED CLAIMS¶

Count I1 improperly incorporates all allegations stated in Count I supporting the abuse of process claim, thereby impermissibly commingling the claims for abuse of process and malicious¶

prosecution. repeating the allegations of Count I verbatim instead of just incorporating those allegations by reference in Count II, which did previously and the Court found impermissible in the Amended Counterclaim, still improperly commingles claims and, is equally impermissible in this Counterclaim. Florida courts recognize that commingling multiple legal claims in a single count severely hampers a defendant's ability to prepare a responsive pleading, and require that such claims be repled. See Gerantine v. Coastal Sec. Sys., 529 So. 2d 1191, 1194 (Fla. 5'h DCA 1988) ("[B]y the time a defendant reached the sixth count of the complaint, he would find himself faced with 72 previous paragraphs, many with numerous subdivisions, replete with evidentiary facts and together forming a total morass which would make it difficult, if not impossible, to respond to."); Frugoli v. Winn-Dixie Stores, 464 So. 2d 1292 (Fla. DCA 1985) (requiring claims to be alleged in separate counts and not intermingled). Such shotgun pleadings are rejected for good reason: "Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer and society loses confidence in the court's ability to administer justice." v. Dist. Bd. of Trs, of Cent. Fla. Cmty Coll., 77 F. 3d 364, 366-67 (11th Cir. 1996).¶

IV. CONCLUSION¶

It is obvious cannot state causes of action for abuse of process and malicious prosecution. Based upon the foregoing arguments and authorities, Plaintiff/Counter-Defendant, Jeffrey Epstein, respectfully requests that the Court dismiss Defendant/Counter-Plaintiff Second Amended Counterclaim with prejudice.¶

Epstein v. Rothstein and Case No. 502009CA040800XXXXMB/Div. AG Motion to Dismiss Second Amended Counterclaim¶

2 o 11 L. Ackerman, r.¶

Florida Bar No. 235954¶

BURNETT, P.A.¶

901 Point West¶

777 South Flagler Drive¶

West Palm Beach, Florida 33401¶

Telephone: (561) 802-9044 Facsimile: (561) 802-9976¶

Attorneys for Plaintiff Jeffrey Epstein¶

and¶

Christopher E. Knight¶

Florida Bar. No. 607363¶

BURNETT, P.A.¶

Espirito Santo Plaza, 14th Floor¶

1395 Brickell Avenue Miami, Florida 33131¶

Telephone: (305) 789-9200¶

Facsimile: (305) 789-9201¶