KAPLAN HECKER & FINK LLP¶
VIA ECF¶
The Honorable Katherine Polk Failla United States District Court Southern District of New York Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007¶
The Honorable Debra Freeman United States District Court Southern District of New York Daniel Moynihan United States Courthouse 500 Pearl St. New York, NY 10007-1312¶
NEW YORK, NEW YORK 10118¶
TEL (212) 763-0883 I FAX (212) 564-0883¶
DIRECT DIAL 212.763.0884¶
DIRECT EMAIL rkaplan@kaplanhecker.com¶
December 4, 2019¶
Re: Doe v. Indyke et at, No. 19-cv-8673-KPF (S.D.N.Y.)¶
Dear Judges Failla and Freeman:¶
We represent Plaintiff Jane Doe in the above-captioned action. Pursuant to Rule 4(A) of Your Honor's Individual Rules of Practice, we write to respond to Defendants' letter, dated December 2, 2019, concerning their anticipated motion to dismiss. (ECF No. 35.)¶
First and most importantly, some basic explanation of this case is in order. Plaintiff (who was fourteen years old when the relevant events began) has filed a Complaint sounding in diversity and containing the following four common law causes of action: (1) sexual assault; (2) sexual battery; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress. The factual allegations supporting these four causes of action are set forth in paragraphs 1-86 of the 90-paragraph Complaint.¶
Federal Rule 12(b)(6) permits a defendant to file a motion to dismiss for "failure to state a claim upon which relief can be granted" (emphasis added). Here, however, Defendants have conceded that they have no viable, non-frivolous argument to dismiss any of Plaintiff's four causes of action, or "claims upon which relief can be granted," as we predicted in our prior letter to the Court dated November 13, 2019 (ECF No. 27). In other words, in contrast to many of the other¶
cases in this District against Mr. Epstein's Estate, Defendants here have not identified a single reason to dismiss any of the four causes of action.'¶
The only argument that Defendants have advanced in their December 2 letter relates to the question of damages. Defendants argue that the phrase "punitive damages" should be deleted from the "Prayer for Relief' section at the very end of the Complaint (1187-90). Because, as outlined above, none of Plaintiff's four claims for relief would actually be impacted even if Defendants were to succeed on this argument, we believe that Defendants' motion is more properly denominated as a motion to strike pursuant to Fed. R. Civ. P. 12(f), rather than a motion to dismiss pursuant to Rule 12(bX6).2 Rule 12(0 motions, however, are strongly disfavored in this District, in large part because they are commonly used by litigants (as is the case here) to unreasonably delay proceedings. Wine Mkts. Intl, Inc. v. Bass, 177 F.R.D. 128, 133 (E.D.N.Y. 1998) ("Because striking a portion of a pleading is often sought by the movant as a dilatory tactic, motions under Rule 12(0 are viewed with disfavor."); see also ,e.g., Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., No. 93 CIV. 6876 LMM, 2000 WL 1876916, at *1 (S.D.N.Y. Dec. 22, 2000). Indeed, as Judge Kaplan has observed, Rule 12(f) motions "have been described aptly as ... time wasters." Carmona v. Spanish Broad. Sys., Inc., No. 08 Civ. 4475, 2009 WL 890054, at *10 (S.D.N.Y. Mar. 30, 2009).¶
Defendants' proposed motion is precisely the sort of "time-waster" that Judge Kaplan criticized. Certainly, Plaintiff will oppose Defendants' motion on the merits: although Defendants contend that New York Estates, Powers, and Trusts Law § 11-3.2(a)(1) prohibits Plaintiff from seeking punitive damages, Defendants ignore the threshold question of whether New York probate law even applies to the question of punitive damages in this case, given that Mr. Epstein purposefully availed himself of the presumed benefits of Virgin Islands law when he chose to probate his Estate there just days before his death. It is therefore only reasonable that he and his beneficiaries should expect that USVI law would govern all matters relating to the estate, including the availability of punitive damages. See v. Car Rentals, Inc., 29 A.D.3d 205, 212 (2d Dep't 2006) (explaining importance of parties' reasonable expectations to choice-of-law analysis).¶
But equally as important, there is no reason why resolution of this choice-of-law question should cause any further delay in this case beyond the sixty-day extension that Defendants have¶
' See VE v. Nine East 71st Street et aL, No. 19 Civ. 7625 (Nathan, J.) (ECF No. 38) (Defendants filed motion to dismiss battery claim on statute-of limitations grounds and duplicativeness and negligence claims for failure to adequately allege sufficient facts); Doe v. Darren K. Indyke et at, No. 19 Civ. 7771 (Castel, J.) (ECF No. 43) (Defendants filed pre-motion to dismiss letter arguing that plaintiff failed to adequately allege claims against corporate defendants, among other grounds); Doe v. Darren K. Indyke et at, No. 19 Civ. 7772 (Carter, J.) (ECF No. 38) (Defendants filed pre-motion to dismiss letter arguing that plaintiff's claims are not adequately alleged, rely on impermissible group pleading, are duplicative, and are time-barred, among other grounds); Doe v. Darren K Indyke et aL, No. 19 Civ. 7773 (Ramos, J.) (ECF No. 31) (same).¶
2 See, e.g., Rapay v. Chernov, No. 16 Civ. 4910, 2017 WL 892372, at (S.D.N.Y. Mar. 6, 2017); Com-Tech Assocs. v. Computer Assocs. Intl Inc., 753 F. Supp. 1078, 1093 (E.D.N.111(denying Rule 12(f) motion to strike punitive damages), aff'd, 938 F.2d 1574 (2d Cir. 1991); v. Ketchum Advert. Co., 865 F. Supp. 166, 169 (S.D.N.Y. 1994).¶
KAPLAN HECKER & FINK LLP a¶
already received. (ECF No. 10.) In addition to punitive damages, Plaintiff seeks actual, compensatory, statutory, and consequential damages, as well as a declaratory judgment that Defendants are liable for Mr. Epstein's violations of law, and Defendants have no legal basis to strike any of those. Complili 87-90. As a result, there is no question that Plaintiff would be entitled to damages if she proves her claims; the only question presented by Defendants is the type of damages available. There is no reason to decide that question before discovery begins. Indeed, it is not uncommon in this District for issues concerning the availability of certain forms of relief to be deferred for resolution until after the close of discovery. Stepski v. M/V NORASIA ALYA, No. 06 Civ. 1694, 2010 WL 6501649, at 4'11 (S.D.N.Y. Jan. 14, 2010) (deciding availability of punitive damages at summary judgment stage); Light v. W2001 Metro. Hotel Realty LLC, No. 10 Civ. 4449, 2011 WL 2175778, at *4 (S.D.N.Y. June 2, 2011) (same).¶
In addition, because Defendants' anticipated motion concerns the availability of only a single aspect of the relief sought and does not relate to a single factual allegation in the Complaint, the Court should order Defendants to respond to those allegations by answering the Complaint while their motion to strike punitive damages is pending. See Fed. R. Civ. P. 12(a)(4) (setting forth impact of filing a Rule 12 motion on party's time to file a responsive pleading "unless the Court sets a different time.") Nor is there any justification for a continued delay in commencing discovery. See, e.g., Hollins v. U.S. Tennis Ass 469 F. Supp. 2d 67, 78 (E.D.N.Y. 2006) (discovery should presumptively proceed during pendency of motion to dismiss). In fact, given the small number of anticipated witnesses, Mr. Epstein's obvious unavailability to testify, and the straightforward nature of Plaintiff's tort claims, minimal discovery is required. This case can and should be ready for trial within six months.¶
Accordingly, Plaintiff respectfully requests that either Judge Faille or Judge Freeman promptly schedule a Rule 16 conference, so that a discovery schedule can be established in this case in short order. In sum, regardless of whether Defendants' motion is construed as a motion to dismiss or a motion to strike, one thing is clear—there is no good reason for further delay in this case.¶
Respectfully submitted,¶
oberta A. Kaplan¶
cc: Counsel of Record¶