IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA.¶
CASE NO. 502009CA040800XXX.XMB¶
JEFFREY EPSTEIN,¶
Plaintiff/Counter-Defendant,¶
-vs-¶
SCOTT ROTHSTEIN, individual) and J. individually,¶
Defendants/Counter-Plaintiffs. 44\ RESPONSE TO PLAINTIFF'S MOTION TO AMEND ANSWER AND AFFIRMATIVE DEFENSES¶
Defendant/Counter-PI Defendant/Counter-PI • hereby files this Response to the Motion to Am Answer and Affirmative Defenses filed by Plaintiff/Counter- efetZilt l Jeffrey Epstein. For the reasons stated below, the motion shoO 'ed.¶
ears after this lawsuit was filed and just prior to a special set trial date, Epstein has filed a motion to amend to raise five new affirmative defenses. No explanation has been offered as to why Epstein waited eight years to raise these defenses.¶
This court is authorized to deny such a motion on any of three grounds: that the amendment would prejudice the opposing party, that the privilege to amend has been abused, or that the amendment would be futile. Vaughn v. Boerckel, 20 So.3d 443, 445 (Fla. 4th DCA 2009). Each of those three grounds exists here.¶
Allowing Epstein to amend his answer to raise five new affirmsS *v defenses would clearly prejudice since those affirmative defe ise multiple factual issues which would require additional discovery itnesses, and possibly even counterpleading by . Additio Epstein has abused the privilege to amend by failing to raise these a • defenses until eight years into the case, especially since he has mad 'cot n e pt to justify that delay. On each of those grounds alone, this Court sh ny his Motion to Amend. See Levine v. United Companies Life s'"659 So.2d 265 (Fla. 1995); nit .M, 252 Sel l 819 (Fla. 1st DCA 1971).¶
Independent of Ititipt his Court should also deny Epstein's Motion to Amend because two f e proposed "affirmative defenses" are not even affirmative defens d the other three are, as a matter of law, not valid defenses to a maliciou rosecution claim. Thus, the amendments would be futile. See McCray v. Bellsouth Telecommunications, Inc., 213 So.3d 938 (Fla. 4th DCA 2017).¶
In State v. 568 So.2d 49, 51-52 (Fla. 1990), the Florida Supreme Court defined an affirmative defense as follows:¶
An "affirmative defense" is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question.¶
Here, none of ' five proposed affirmatives defenses provide a valid excuse or justification for the filing of his baseless litigation against is will be discussed in more detail infra¶
It should also be noted that a fundamental premise of the five proposed affirmatives defenses is that claim is jally for malicious prosecution, but is really a defamation claim, whi be subject to these new affirmative defenses. However, S alleged a defamation claim against Epstein arising from the cuq s at issue here. Additionally, the Fourth District has specifically ruiaw. pstein's claim of litigation privilege was invalid because it does not malicious prosecution claim, although it does apply to a defamatio iii....._ di, 's v. Epstein, 178 So.3d 942 (Fla. 4th DCA 2015); and the orid"upreme Court ruled the same way, see Debrincat v. Fischer, 2 3 68 (Fla. 2011). Therefore, as discussed in more detail infra, Epstei ot convert malicious prosecution claim into a defamation cause of action in order to justify these untimely and inapplicable defenses.¶
The Fifth Affirmative Defense¶
Epstein contends his underlying lawsuit against was a "form of petitioning government for redress" and therefore cannot prevail unless¶
he can show that Epstein's lawsuit was a "sham" under the Noerr-Pennington doctrine. This proposed affirmative defense is invalid as a matter of law on multiple levels.¶
United Mine Workers v. Pennington, 381 U.S. 657 (1965), and Eastern Railroad Presence Conference v. Noerr Motor Freight, Inc., 365 U.S 7 (1961), both involved claims of antitrust violations under the federal Act, 15 U.S.C. §1-7. The conduct at issue was a public relations and lobbying efforts designed to cause legislative and executive b of government to enact 9 anticompetitive laws. The Supreme Court h nless those efforts were proven to have been a "sham," they wer c from being antitrust violations by the First Amendment right to the government. At this point it is reasonable to ask what those is s have to do with a malicious prosecution case, and the simple answ is othing. Neither Noerr nor Pennington addressed petitioning the gove in judicial forums, which is governed by a different standard and completely inapplicable to Epstein's baseless lawsuit against Edwart¶
Th nited States Supreme Court has made it clear that baseless litigation is not entitled to any protection under the First Amendment right to petition. In Bill Restaurants, Inc. v. National Labor Relations Board, 461 U.S. 731, 743 (1983), the Court stated:¶
en defense assumes the truth o justifi Here, malicious prosec \ "cig o c a. alleges that Epstein's lawsuit against him was baseless. As the Flo 4 reme Court has stated, an affirmative im alleged, and raises a valid excuse or cation for that cond en, supra. Since suit was baseless, an SZPIveU.S. Supreme Court has ruled that baseless litigation receives no t on from the First Amendment right to petition, Epstein's propos Affirmative Defense does not, as a matter of law, state a valid defense. alleges that Epstein's¶
Just as false statements are not immunized by the First Amendment right to freedom of speech, see Herbert v. Lando, 441 U.S. 153, 171, 99 S.Ct. 1635, 1646, 60 L.Ed.2d 115 (1979); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974), baseless litigation is not immunized by the First Amendment right to petition. [Emphasis added]¶
The Court has also distinguished judicial proceedings from petitioning jctivity of on doctrine in California Motor Transport Co. v. Trucking Unli U.S. 508, ) the legislature and executive branch in the context of the Ns it 513 (1972), stating:¶
Misrepresentations, condoned in the immunized when used in the adjudicato \ arena, are not¶
Epstein's proposed Fifth Affirmative Defense is also fatally defective in contending that the "sham" test must be used to evaluate Epstein's lawsuit. The Florida Supreme Court has unequivocally rejected that standard in a¶
Turkey Creek, Inc., 609 So.2d 14, 18 (Fla. 1992):¶
We decline to adopt the "sham" test because we find that the current law in Florida already provides protection for the First Amendment right to petition the government.¶
Moreover, the analysis in is consistent with the that argument e above, i.e. the right to petition under the First Amendme ilit l .,the Federal Constitution, or Article I, §5, of the Florida Constitutio application to immunize nor limit a malicious prosecution claim.¶
involved a conflict between developer. The homeowners' association civil action against the developer, and also lobbied local zoning officia s e positions adverse to the developer. The developer prevailed in th c i fion and then brought a claim for malicious prosecution and numerou oth torts against the homeowners' association. The t Florida Supreme Co opst determined whether the developer could maintain a malicious p o action against the homeowners, and determined that claim was via it o.2d at 16-18. Thereafter, the Florida Supreme Court considered whether e other allegedly tortious conduct of the homeowners was protected by the First Amendment right to petition the government. However, the Court specifically did not include the malicious prosecution claim within that analysis, obviously recognizing that defense was inapplicable to such tortious conduct. Id. at 9wners' association and a¶
- In that analysis, the Florida Supreme Court specifically declined to adopt the "sham" test to determine whether the homeowners' lobbying conduct was protected by the First Amendment right to petition, but instead followed its prior decision in Nodar v. Galbreath, 462 So.2d 803 (Fla. 1984).
In Nodar, the Florida Supreme Court held that where a citizen a sued for statements made at a public school board meeting, the right to tt o njustified a qualified privilege with respect to defamation. But the C that qualified privilege only "eliminated the presumption of frcm ' 'i i ttaching to defamatory statements by law." 462 So.2d at 810. Ho 5 re is no presumption of C4 "malice" in a malicious prosecution cas 't s a separate element of the tort which the plaintiff must prove. Fisc r ebrincat 169 So.3d 1204, 1206 (Ha. 4th DCA 2014), approved, 21 8 (Fla. 2017). As noted by Justice Scalia, a malicious prosecution cla rates a qualified privilege within its elements, Kalina v. IM, 529 118, 133 (1997) (Scalia, J. concurring):¶
At co w, therefore, Kalina would have been protected by som= resembling qualified immunity if she were sued for prosecution. The tortious act in such a case would have er decision to bring criminal charges against, and lia911ity would attach only if could prove that the prosecution was malicious, without probable cause, and ultimately unsuccessful.¶
i As noted in other filings, acknowledges that in malicious prosecution cases, malic can be inferred from; inter alia; lack of probable cause, gross ar ence, or great indifference to persons on the rights of others. see Durkin v. 814 So.2d 1246, 1248 (Fla. 2nd DCA 2002). However, there is no presumption of malice in malicious prosecution cases.¶
Thus, Nodar, cited in Epstein's proposed Fifth Affirmative Defense, is inapplicable here, since malice is not presumed in a malicious prosecution action.¶
Finally, Epstein's proposed Fifth Affirmative Defense is fatally defective because his filing of RICO, civil theft, and extortion charges against does not fall within the scope of the right to petition the government. In Robert Welch. Inc., 418 U.S. 323, 350 (1974), the Court rejected • tention that private attorneys, as officers of the court, are "public offic or purposes of the First Amendment. The Court stated:¶
Respondent's suggestion would swe Ar t 8 tyd.t ers under the New York Times rule as officers of the 'so the plain meaning of the `public official' category 1 recognition. We decline to follow it.¶
Furthermore, in Nodar, concluded that the public ho, eacher was neither an elected nor policy making t official sufficient to or First Amendment protection, even though she was a government e. Thus, as a matter of law, Epstein's underlying suit against Edward constitute petitioning the government for purposes of the First Amendm t or Article I, §5, of the Florida Constitution. Florida Supreme Court followed Gertz and¶
Sixth. Seventh. and Eighth Affirmative Defenses¶
Epstein's proposed Sixth, Seventh, and Eighth Affirmative Defenses are all premised on his contention that `I ' claims are nothing more than defamation claims which are barred by defenses applicable to defamation claims" (Proposed Answer p.10). That premise is wrong and therefore all three defenses, which can apply only to defamation actions, are invalid as a matter of law.¶
The fundamental flaw in these three affirmative defenses is Epstein's characterization of claim as "nothing more than defamatio counterclaims in this proceeding have never included a cou ISi) defamation. Moreover, malicious prosecution is indisputably a separa an dependent tort. Additionally, Epstein's prior attempt to defeat EdwV laim based on a defense to defamation was unsuccessful as a matter ofl\ SivS)¶
Previously in this case, Epstein mo 't r mmary judgment arguing, inter alia, that the litigation privilege, w h absolute bar to a defamation claim, barred ' malicious on claim. This Court granted summary judgment, but was reve by e Fourth District based on its determination that t the Third District p ient this Court relied upon should not be followed. v. 4178 So.3d 942 (Fla. 4th DCA 2015). Epstein sought review in the Flo t • eme Court, but became a "tag along" case to Debrincat v. Fisher, No. SC1 477. In Debrincat, the Florida Supreme Court ruled that the litigation privilege did not apply to bar or limit a malicious prosecution claim. Debrincat v. Fisher. 217 So.3d 68 (Fla. 2017).¶
Thereafter, the Supreme Court issued an order to show cause directing Epstein to show why Debrincat was not controlling in this case (Exhibit A). Epstein responded and conceded that "the petitioner would show no cause why Debrincat is not controlling ..." (Exhibit B). As a result, the Supreme Court declined review. Therefore, Epstein conceded that this action is Alk licious prosecution claim which, unlike a defamation claim, is not bar Ror limited by the litigation privilege. Nonetheless, he now attempts to nv claim into a defamation claim in order to raise multiple affi e defenses.¶
Epstein attempts to justify this "conve \ ' string citing cases for the (4 proposition that "a plaintiff may not a e nses that apply to defamation actions by characterizing them as to 'are not subject to those restrictions." (Proposed Answer p.10-11). o ses do not support Epstein's position because none of them involve mal rosecution claims in which the plaintiff properly alleged all elements tot tort. The cases relied upon by Epstein all involve the "single publi iio Ingle action rule" which prohibits multiple claims arising from a single lion upon which a failed defamation claim was based. E.g., Calloway d & Cattle Co., Inc. v. Banyon Lakes C. Corp., 831 So.2d 204, 208 (Fla. 4th DCA 2002). There was no "failed defamation claim" in the case sub iudice, and thus that rule does not apply. Furthermore, none of the cases cited by¶
Epstein involved circumstances in which a valid malicious prosecution claim was at issue.¶
Also, as noted in Calloway Land, there are two exceptions to the application of the "single publication/single action rule," both of which apply in this case. First, where a plaintiff pleads facts and circumstances other than th jaiid kryfamato statement to support the independent tort, the rule does not a 4wee Ci ., Primarica Financial Services. Inc. v. Mitchell, 48 F.Supp 2d 1363 ( . 999) (cited in Calloway Land, 831 So.2d at 209). Here, Plaint* c s pled other facts and circumstances since he has successfully pled tIctil pendent tort of malicious prosecution. Therefore the "single publi ict • gle action rule" does not apply, c\ as a matter of law. (s,¶
A second exception 5%e le is where the plaintiff did not have a defamation claim. See He C in, .'CBS Broadcasting. Inc., 789 So.2d 355 (Fla. 2d DCA 2001) (cited in wa Land, 831 So.2d at 209), disapproved on other grounds by v. Gannett Co.. Inc., 994 So.2d 1048 (Fla. 2008). Here, er alleged a defamation claim against Epstein. Moreover, such a claim wobid have been foreclosed by the litigation privilege which, the Florida Supreme Court has held, does not bar l= malicious prosecution claim. Debrincat supra.¶
Based on the above, Epstein's proposed Sixth Affirmative Defense and Seventh Affirmative Defense, which raise defenses solely applicable to defamation claims, are inapplicable, as a matter of law, in this case.¶
Additionally, the proposed Sixth Affirmative Defense, which contends that is a "general or limited purpose public figure," fails as a ma f law for another reason. In Gertz, supra, the United States Supreme Ag rejected the contention that a private attorney representing a private d' 0 igation matters became a public figure, even though there was si • t publicity surrounding the case. Here, did nothing to inject • f • to any public controversy relevant to Epstein's lawsuit against hi 4 the Court in Gertz stated (418 U.S. at 352): n;\¶
We would not lightl e that a citizen's participation in community and pro ffairs rendered him a public figure for all purposes.¶
The court in Gertz c !Muded that the petitioner, a private attorney, was not a public figure " is participation related solely to his representation of a private client. at 352.¶
Fo the same reason, Epstein's contention in his proposed Seventh Affirmative Defense that the matters relevant to Epstein's initial lawsuit "involve a matter of public concern" is invalid. That position is contradicted by the one case Epstein relies upon, Gertz, supra. Therefore, in addition to being a defense to a different tort, the proposed Seventh Affirmative Defense does not apply as a matter of law.¶
Epstein's proposed Eighth Affirmative Defense is not actually an affirmative defense. It only contains his legal argument that claims are "nothing more than defamation claims which are bared by defenses applicable t d famation claims as set forth in the defenses above" (Proposed Answer p.1 IS a result, it is not an affirmative defense as defined in =, supra, but statement of a legal proposition. Therefore, allowing Epstein to am s answer to include it as an affirmative defense would be futile.¶
Ninth Affirmative Defense¶
In his proposed "Ninth Affirm and statutory principles that gt ards of punitive damages are "not sufficient to assure Epstein due p O ces of law." On a threshold level, this is not an affirmative defense; i 71"40- constitutional challenge to the validity of this Court's proceedings re, denial of leave to amend is warranted. \ fense" I Epstein contends common law¶
E roposed "Ninth Affirmative Defenses" does not establish a valid excuse justification for engaging in the conduct alleged in counterclaim as required by =, supra. Instead, it contents that this Court is incapable of providing due process to him in these proceedings as to any award of punitive damages. Epstein does not specify any past proceedings in which this¶
Court violated his right to due process with respect to the punitive damages, nor does he identify any possible future proceedings that would violate his due process rights. Thus, the argument he raises is premature but, more importantly, it is not an affirmative defense, as a matter of law. Therefore, there is no basis for this Court to grant him leave to amend his answer to the counterclaim to add it as ia rmative IS defense.¶
would note that there are multiple proced 0•• ce to protect a defendant's due process rights in proceedings relatin nitive damages.¶
The Florida Supreme Court has consid c established procedures by which the righ litigating punitive damages claims. 502, 506 (Fla. 1994). There, held: ocess principles and has efendant will be preserved when ce & Co.—Conn. v. Waters, 638 So.2d¶
When presented timely motion, should bifurcate the determination the a ount of punitive damages from the remaining issues at trial. first stage of a trial in which punitive damages are an i th jury should hear evidence regarding liability for actual s the amount of actual damages, and liability for puni ages, and should make determinations on those issues. If, at t stage, the jury determines that punitive damages are ted, the same jury should then hear evidence relevant to the am nt of punitive damages and should determine the amount for which the defendant is liable. At this second stage, evidence of previous punitive awards may be introduced by the defendant in mitigation.¶
Id. at 506. These procedures are meant to eliminate the possibility that a defendant will be prejudiced during the liability phase of the case with presentation of evidence related to the determination of the amount of punitive damages.¶
The procedures established by the Florida Supreme Court in W.R. = have been applied consistently to ensure the due process rights of (' d ants are met. See, e.g., Persaud v. Cortes, 219 So.3d 241, 242 (Fla. 5th D;44.17); GEICO Ins. Co. v. =, 209 So.3d 77, 81 (Fla. 3d DCA 2 , ew denied, No. SC17-94, 2017 WL 1732993 (Fla. May 3, 2017); ul Mercury Ins. Co. v. Coucher. 837 So.2d 483, 488 (Fla. 5th DC k, Coming Fiberglas Corp. v. Ballard, 749 So.2d 483, 484 (F19(4Nessanti v. Contreras, 695 So.2d 845, 847 (Fla. 4th DCA 1997); Sol Ileven Inc. No. 2:09-CV-807-FTM-29, 2011 WL 241 t 1 . la. June 13, 2011); see also IMV)i ning (3, .2d 154, 156 (Fla. 3d DCA 1996) (finding no due process violation as ive damage award where defendant did not avail itself of the "pro o ered by the option of bifurcation"). There is no reason why the bi rocess could not also be applied here to ensure that Epstein's due process n is are preserved.¶
There are also post-trial procedures available to protect the due process rights of a defendant. See State Farm Mut. Auto. Ins. Co. v. , 538 U.S. 408, 416 (2003); BMW of N. Am.. Inc. v. Gore, 517 U.S. 559 (1996). These procedures have been applied consistently to protect the due process rights of defendants where a grossly excessive or arbitrary punitive damage award is awarded. See, e.g., , supra; v. Liggett Group, Inc., 945 So.2d 1246, 1263 (Fla. 2006); R J Tobacco Co v. Townsend, 90 So.3d 307, k 316 (Fla. 1st DCA 2012); Langmead v. Admiral Cruises, Inc., 696A 2d 1189, 1194 (Fla. 3d DCA 1997). As¶
Finally, the Florida Legislature has enacted a sta fot r eme granting protection to defendants in pretrial and post-trial eedings. See §§768.72, 768.725, 768.73, Fla. Stat. Epstein has failed any shortcoming in this legislative scheme or the procedures ado a Florida Supreme Court which subject him to any violation of his du p s rights.¶
Therefore, for the reaso above, Epstein's Motion to Amend Answer and Affirmative Defenses el e denied.¶
I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list, by email, on November 22, 2017.¶
/kbt¶
+6s¶
Jack Scarola, Esq. SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Blvd. A West Palm Beach, FL 33409 eservice®searcylaw.com jsx®searcylaw.com and BURLINGTON & NBACH, P.A. Courthouse Co ns to 350 444 West venue West Pal 33401 (561) 7 Atto J. p ppellateLaw.com AppellateLaw.com Acc p...ekbt FLAppellateLaw.com¶
By:/s/ Philip M. Burlington PHILIP M. BURLINGTON Florida Bar No. 285862¶
SERVICE LIST¶
Epstein v. Rotl Case No. 502009CA040800XXXXMB¶
Scott J. Link, Esq.¶
Kara B. Rockenbach, Esq.¶
Angela M. Many, Esq.¶
LINK & ROCKENBACH, P.A.¶
1555 Palm Beach Lakes Boulevard, Suite 301¶
West Palm Beach, Florida 33401¶
(561) 727-3600¶
Attorneys for Jeffrey Epstein¶
Mark Nurik, Esq.¶
LAW OFFICES OF MARC¶
1 E. Broward Blvd., Ste. 700¶
Fort Lauderdale, FL 333.01¶
(954) 745-5849¶
Attorneys for S stein¶
Jack Goldberger, Esq.¶
ATTERBURY, GOLDBERGER¶
& WEISS, P.A.¶
250 S. Australian Ave., S,j 400¶
West Palm Beach, FL 0¶
(561) 659-8300¶
jgoldberger@a¶
smahoney@a¶
Attorneys for 1 f y Epstein¶
wards, Esq.¶
AFFE, WEISSING,¶
S, FISTOS & LEHRMAN, P.L.¶
Andrews Ave., Ste. 2¶
Lauderdale, FL 33301¶
- 524-2820
staff.efile@pathtojustice.com¶
alupreme Court of jitotiba¶
WEDNESDAY, MAY 3, 2017¶
CASE NO.: SC15-2286¶
Lower Tribunal o(s).:¶
4D14-2282; 502009CA040800¶
JEFFREY EPSTEIN vs. J. EDWJ ET AL.¶
Petitioner(s) Respondent(s)¶
Petitioner shall show cause on or before May 18 decision Debrincat v. Fischer, 42 Fla. L. Weekly S1 controlling in this case and why the Court should jurisdiction in this case. Respondent may sere why this Court's eb. 9, 2017), is not to exercise or before May 29, 2017.¶
A True Copy¶
Test:¶
icte2A. Tomasino C Clerk, Supreme CotIc o.p.¶
¶
( S" two¶
Served: O¶
WILLL $ B. PAUL MORRIS PHILIP M. BURLINGTON MARC S. NURIK TONJA B HADDAD W. CHESTER JR. JACK ALAN GOLDBERGER¶
IN THE SUPREME COURT OF FLORIDA¶
CASE NO. SC15-2286¶
JEFFREY EPSTEIN,¶
v.¶
Petitioner,¶
J. et al.,¶
Respondents.¶
PETITIONER'S RESPONSE TO ORDER TO SHOW CAUSE¶
The petitioner responds as follows to urt's order dated May 3, 2017:¶
-
On May 3, 2017, this Court is rder directing the petitioner to show cause on or before May 18, 201 A 42 Fla. L. Weekly S141 (Fl 017), is not controlling in this case and why the Court should not deer t iVilyexercise jurisdiction in this case. A+s'Court's decision in Debrincat v. Fischer,
-
In resNo the show cause order, the petitioner would show no cause why Debrinc t no controlling as to the basis for this Court's jurisdiction, and no cause why t ourt should not decline to exercise jurisdiction.
Respectfully submitted,¶
LAW OFFICES OF PAUL MORRIS, P.A. 9350 S. Dixie Highway Suite 1450 Miami, FL 33156¶
Florida Bar No. 193769 Tel. (305) 670-1441 Fax (305) 670-2202 paulappeal®gmail.com paul®paulmorrislaw.corn¶
sl Paul Morris¶
PAUL MORRIS¶
Counsel for Petitioner¶
CERTIFICATE OF SERVICE¶
I HEREBY CERTIFY that this response was emailed below this 18th day of May, 2017. O el on the list¶
sl Paul Morris iS C) PAUL MORRIS¶
SERVICE LIST:¶
Philip M. Burlington Burlington & Rockenbach, Courthouse Commons/Suit 444 West Railroad A West Palm Beach. FL 4 r 1¶