UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA¶
CASE NO.: 08-80381-CIV-MARRa¶
JANE DOE NO. 5,¶
Plaintiff, vs.¶
JEFFREY EPSTEIN,¶
Defendant.¶
PLAINTIFF'S RESPONSE TO MOTION TO SET ASIDE CLERK DEFAULT¶
Plaintiff, Jane Doe No. 5, by and through her undersigned counsel, submits this Plaintiff's Response to Motion to Set Aside Clerk Default, as follows:¶
Introduction¶
Defendant Jeffrey Epstein claims that service of process on him was ineffective under Florida or Federal law, based solely on a "bare bones" affidavit that raises more questions than it answers. On this basis, Defendant seeks to set aside a clerk's default. At a minimum, the issue of whether service was effective under Florida or Federal law is at this point one of fact which should be the subject of discovery. Accordingly, Defendant's Motion should be denied, or alternatively, stayed until such time as discovery on these matters is concluded.¶
The Affidavit Attached to the Defendant's Response to the Motion is Insufficient¶
Service of process was effected at Jeffrey Epstein's New York residence on May 7, 2008, at 7:45 a.m. by handing a copy of the Summons and Complaint to a person in Defendant's residence who refused to identify himself. (See D.E. 4, Affidavit of Service). Defendant now attaches to his Motion as Exhibit "A" the Affidavit of Richard Barnett, who claims to have received the copies of¶
the Summons and Complaint on May 7, 2008 at Defendant Epstein's residence. In this Affidavit, Mr. Barnett states very little. He asserts that he does not now, nor has he ever, resided at 9 E. 71st Street, New York, New York (Mr. Epstein's residence). He fails to state in this Affidavit, however, where he does live, if not at the residence in question; what he was doing at the subject address when service was made; his relationship with Defendant Epstein, and how often he was at the residence; or why he refused to identify himself to the process server. He also fails to state who instructed him to answer the door on May 7, 2008 and take service anonymously.¶
The Court may grant limited discovery on the issue of service of process. Commonwealth of Puerto Rico v. SS Zoe Colocotroni 61 F.R.D. 653, 656-57 (D.P.R. 1974) ("discovery regarding the legal sufficiency of service of process so as to acquire in persona: jurisdiction over the person of a defendant is permitted by the Federal Rules of Civil Procedure, specifically Rule 26"). See also Blair v. City of Worcester, 522 F.3d 105, Ill (1st Cir. 2008); Monteiro v. San Nicolas. S.A., 254 F.2d 514, 516-17 (2d Cir. 1958) (holding that discovery was appropriate on disputed issues of service of process). The parties do not dispute that if the person who in fact received the copies of the summons and complaint resided at the residence, then service would have been valid under Florida or Federal law on May 7, 2008.1 See National Development Co. v. Triad Holding Corp. 930 F.2d 253 (2d Cir. 1991) (upholding service of process on housekeeper of defendant's New York apartment, under Fed.R.Civ.P. 4(d)(1) [now 4(e)(2)], because the defendant was actually living in¶
' Defendant notes that under Rule 4(e) there is no priority between alternative methods of service. This means that Plaintiff has the option of perfecting service under either federal law, the law of the forum state, or the law of the state where service is made: "Either may be turned to with no attempted prior resort to the other." Fed.R.Civ.P. 4 (Commentary C4-22). It does not stand, however, for the proposition that the defendant can accept service under New York law, while ignoring valid service under Florida or Federal law. Accordingly, once valid service was made on Defendant Epstein under Federal or Florida law on May 7, 2008, Defendant was required to answer to otherwise respond to the Complaint by May 27, 2008 to avoid default, which he failed to do.¶
the apartment at the time service was effected). Alternatively, if the extraordinary difficulties encountered in serving Mr. Epstein were the result of Mr. Epstein's deliberate avoidance or deception, while knowing of the lawsuit, then it would likewise be appropriate to find good service and a default. See Keevan & Son . Inc. v. Callier Pipe & Tube. Inc., 107 F.R.C. 665, 671-72 (S.D. Fl.a. 1985) ele)ffective service is most likely found when a defendant has engaged in deception to avoid service of process"). Based on what Mr. Barnett's Affidavit does not disclose, Plaintiff should be granted discovery to determine whether service was proper under Florida or Federal law. Plaintiff would at a minimum like to take the depositions of Mr. Bartlett and Mr. Epstein with regard to the service of process issues that have arisen in this matter.¶
Conclusion¶
Based on the foregoing, Plaintiff requests that this Court deny Defendant's Motion to Set Aside Clerk Default, or alternatively, withhold ruling on the Motion until discovery on the issue of service of process is completed; and such other and further relief as this Court deems proper.¶
Dated: June 25, 2008. Respectfully submitted,¶
By: s/ Jeffrey M. Herman Jeffrey M. Herman (FL Bar No. 521647) jherman@hermanlaw.com Stuart S. Mermelstein (FL Bar No. 947245) ssm@hermanlaw.com Adam D. Horowitz (FL Bar No. 376980) ahorowitz@hermanlaw.com HERMAN & MERMELSTEIN, P.A. Attorneys for Plaintiffs Jane Doe 18205 Biscayne Blvd., Suite 2218 Miami, Florida 33160 Tel: 305-931-2200¶
CERTIFICATE OF SERVICE¶
I hereby certify that on June 25, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day¶
to all parties on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those parties who are not authorized to receive electronically Notices of Electronic Filing.¶
/s/ Jeffrey M. Herman¶
SERVICE LIST DOE vs. JEFFREY EPSTEIN CASE NO.: 08-CV-80381-MARRa United States District Court, Southern District of Florida¶
Jack Alan Goldberger jagesq@bellsouth.net¶
/s/ Jeffery M. Herman¶