IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN
AND FOR PALM BEACH COUNTY,
FLORIDA¶
JEFFREY EPSTEIN,¶
Plaintiff,¶
vs.¶
SCOTT ROTHSTEIN, individually,
[REDACTED] J. [REDACTED],
individually,¶
Defendants.¶
Complex Litigation, Fla. R. Civ. Pro. 1201¶
Case No. 50 2009 CA 040800 XXXX MBAG¶
CLEARANCE BOOK, CLERK
CIRCUIT CIVIL 4
FILED
11 SEP 22 PM 12:28¶
PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S RESPONSE IN
OPPOSITION TO DEFENDANT/COUNTER-PLAINTIFF [REDACTED] [REDACTED]
MOTION FOR LEAVE TO AMEND TO ASSERT A CLAIM FOR PUNITIVE
DAMAGES AND SUPPLEMENT THERETO¶
Plaintiff/Counter-Defendant, JEFFREY EPSTEIN ("Epstein"), by and through his undersigned counsel, hereby offers the following response in opposition to Defendant/Counter-Plaintiff [REDACTED] ("[REDACTED]") Motion for Leave to Amend to Assert a Claim for Punitive Damages ("Motion") and supplement thereto, and states:¶
SUMMARY OF ARGUMENT¶
[REDACTED] rambling, kitchen-sink motion for leave to add a punitive damages claim against Epstein is factually and legally insufficient, if not frivolous. [REDACTED] seeks punitive damages on the grounds that the claims against [REDACTED] in Epstein's initial Complaint -- not the pending Corrected Second Amended Complaint -- are baseless because he was not involved in the Ponzi scheme and did not pump the cases; the fraudulent presentation to investors did not harm Epstein; the RICO and fraud claims in the initial Complaint required actual knowledge; the original abuse of process claim is barred by the litigation privilege; Epstein intended to block¶
discovery when he filed his lawsuit; and adverse inferences from Epstein's invocation of the Fifth Amendment defeat his claims. Not a single one of arguments withstands scrutiny because the alleged insufficiency of a claim, or inability to prove a claim, is not a basis for punitive damages, particularly when, as is true in this case, that prior claim has been withdrawn. Even assuming arguendo that it could be found that a claim was unsupported when filed, does not, and cannot, cite a single case holding that the filing of an unsupported claim is itself sufficient to provide a reasonable basis for this Court to grant leave to plead punitive damages. Such conduct simply does not, as a matter of law, establish a wanton disregard of M ' rights with the "knowledge and present consciousness not simply that a statute or right will be violated but that injury will result." Genesis Publ'ns v. Goss, 437 So. 2d 169, 170-71 (Fla. 3d DCA 1983). Stated differently, Edwards cannot pursue a §57.105, Fla. Stat., motion in the guise of a motion to assert punitive damages, as he is unquestionably attempting to do. Although has proffered evidence in an attempt to refute Epstein's allegations, the fact that merely disputes or denies Epstein's claims and has raised various affirmative defenses does not — by any stretch of the imagination — demonstrate that Epstein's filing of his initial Complaint evinces the requisite recklessness or wantonness. Id. If the failure "to state a cause of action is not, in and of itself, a sufficient basis to support a finding that a claim was so lacking, in merit as to justify an award of fees pursuant to section 57.105.", Mason v. Highlands Cty. Bd. of County Commr's, 817 So. 2d 922, 923 (Fla. 2d DCA 2002), then proffer of evidence and argument purporting to show only that Epstein has not stated, or cannot prove, his claims against certainly cannot provide a reasonable basis for pleading punitive damages.¶
In addition, M' demand for punitive damages is unavailing insofar as he has no basis to seek any damages because his own Counterclaim fails to state a valid claim for abuse of process. MIM' Counterclaim fails to state a valid claim for abuse of process because it is based solely on Epstein's filing of his complaint, rather than any post-filing misconduct.¶
In sum, M' motion for leave to assert punitive damages ignores the applicable law, obscures the issues, and, significantly, makes no effort to address the allegations in the Second Amended Complaint, which show a clear link between and Rothstein's Ponzi scheme. See 1¶ 20-24 of Corrected Second Amended Complaint. M' motion must be denied.¶
STATEMENT OF THE CASE¶
On December 7, 2009, Epstein, represented by prior counsel, filed a Complaint against for violation of §772.101, Fla. Stat. (Count I), "Florida RICO" (Count II), abuse of process (Count III), fraud (Count IV) and conspiracy to commit fraud (unnumbered). On December 21, 2009, filed an Answer and Counterclaim. In his Counterclaim, purported to state a claim against Epstein for abuse of process based upon allegations that: Epstein had asserted his Fifth Amendment rights (¶6); Epstein sought to avoid liability by "employing the extraordinary financial resources at his disposal to intimidate his victims into abandoning their legitimate claims or resolving these claims for substantially less than their just value" (id.); am. conduct in the underlying lawsuits was proper (¶8); and Epstein filed the instant lawsuit "to intimidate M, L.M. and others into abandoning or settling their legitimate claims for less than their just and reasonable value." (¶9)¶
On or about October 10, 2010, filed a motion for summary judgment on the Complaint, raising the same arguments that he now advances in support of punitive damages. On October 19, 2010, filed his first motion for leave to assert punitive damages on the¶
grounds that there was no evidence supporting Epstein's claims against him; Epstein had not sustained any damages; Epstein did not intend to meet his discovery obligations; and Epstein was trying to intimidate and his clients.'¶
On January 5, 2011 — while no motion to dismiss was pending — Plaintiff filed a motion for leave to amend his Complaint to delete various allegations and to clarify that his liability in the underlying cases was not at issue. On January 11, 2011, this Court entered an Order denying motion for summary judgment on the grounds that it was premature because Epstein had not been able to obtain records calculated to lead to the discoveryedrnissible evidence and there were privilege issues to resolve. Parenthetically, this sti e case; Epstein's ability to get the necessary discovery remains stayed by this C pril 13, 2011, Epstein filed an Amended Complaint against with a single count or abuse of process, which then moved to dismiss.¶
At a hearing on July 13, 2011, this Court heard argument inter alia on IM motion to dismiss the Amended Complaint and granted the motion with leave to amend. With regard to M' "sword and shield" argument, the Court observed that "we can't really know what the sword/shield doctrine applies to until I know what the lawsuit is about." (Tr. July 13, 2011 at p. 32). The Court also denied motion for leave to amend his counterclaim to plead punitive damages.¶
On July 19, 2011, while no complaint by Epstein was even pending, filed a renewed motion for leave to assert punitive damages against Epstein. On July 29, 2011,¶
M . complaints of intimidation by E stein and damages as a result thereof de& belief, particularly when at the same time that has complained of this so-called intimidation, he has represented additional clients and sett e cases against Epstein.¶
filed a Supplement to Proffer in Support of Motion for Leave to Amend to Assert Claim for Punitive Damages.¶
Epstein filed a Second Amended Complaint on August 22, 2011, which contains a single count against for abuse of process. Epstein filed a Corrected Second Amended Complaint on August 24, 2011.¶
ARGUMENT¶
A. LEGAL FRAMEWORK FOR ASSERTING PUNITIVE DAMAGES¶
Tellingly, renewed motion for leave to assert punitive damages completely ignores the standards that must be satisfied in order for the Court to grant leave to to assert a claim for punitive damages — as if such standards did not exist. This omission is perhaps understandable, however, because any attemp by to apply the clear legal standards to his proffer and arguments would prove f to motion. It is glaring omission that requires us to detail below the sta r t must be satisfied for leave to assert a claim for punitive damages in Florida.¶
Before a party is permitted to allege punitive damages, he must comply with the requirements of §768.72(1), Fla. Stat. (2011), which provides in pertinent part, as follows:¶
y civil action, no claim for punitive damages shall be fitted unless there is a reasonable showing by evidence in the ecord or proffered by the claimant which would provide a reasonable basis for the recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure.
¶
Thus, bears the burden of establishing a reasonable basis for the recovery of punitive damages. See Will v. Systems Engineering Consultants, 554 So. 2d 591, 592 (Fla. 3d DCA 1989). As demonstrated below, has undeniably failed to satisfy his burden of proof of proffering evidence that Epstein's conduct was knowingly or recklessly indifferent to M' rights.¶
The case law in Florida is well-established that the character of misconduct necessary to sustain an award of punitive damages is the same as that required to sustain a conviction for manslaughter. Carraway v. Revell, 116 So. 2d 16, 20 (Fla. 1959). See also Tiger Point Golf v. Ripple, 977 So. 2d 608, 610 (Fla. 1st DCA 2007)("The conduct punitive damages properly condemns and hopefully deters is willful and wanton misconduct of a character no less culpable than what is neceqqary to convict of criminal manslaughter."). The Florida Supreme Court has also explained that the type of evidence necessary to uphold an award of punitive damages "must be of a "gross and flagrant character, evincing ... reckless indifference to the rights of others which is equivalent to an intentional violation of them." Construction Co. v. Dupont, 455 So. 2d 1026, 1029 (Fla. 1984)(evidence that an 80,000 pound loader was knowingly operated at top speed with no brakes in the area where people were working was not sufficient to submit the issue of punitive damages to thejuryXcitation omitted). See also Chrysler Corp. v. Wolmer, 499 So. 2d 823, 824 (Fla. 1986)(ct st did not put automobile manufacturer on notice of fuel system defects and did not ro Me manufacturer with actual knowledge that it was marketing an inherently dangerous automobile, and thus did not support conclusion that manufacturer acted with wanton disregard of life equivalent to manslaughter so as to support an award of punitive damages). 2¶
2 See also American Cyanamid Co. v. Roy, 498 So. 2d 859 (Fla. 1986)(punitive damages were not warranted where the conduct of a toxic chemical manufacturer in failing to warn of the effects of its product did not reach the willful and wanton level in the absence of evidence indicating an entire lack of care); Como Oil Co., Inc. v. O'Loughlin, 466 So. 2d 1061 (Fla. 1985)(evidence that a gas truck that was filling an underground storage tank was dirty, grimy, leaked and lacked a safety device on the filler nozzle, and that the driver of the truck did not use¶
The Florida Legislature codified the foregoing standards for imposing punitive damages via its enactment of the 1999 Tort Reform Act, which added three subsections to §768.72, Fla. Stat., see §768.72(2)-(4), Fla. Stat. (2005), and in doing so, made it perfectly clear that the ability to claim punitive damages is not automatic and is not subject to the traditional liberal philosophy of allowing amendments to pleadings. It is a substantive right of every defendant not to be subject to a punitive damages claim and the associated financial net worth discovery -- that is often oppressive -- unless the standards under the statute and supportin are met with evidence.¶
Subsection (2) of §768.72 states as follows:¶
(2) A defendant may be held liable for pur'vidamages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:¶
(a) "Intentional misconduct" means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.
¶
(b) "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.
¶
"\I"•-¶
What is clear is that even if there were evidence of an intentional tort, that does "not necessarily [support] an award of punitive damages. [Citation omitted] Proof of the elements of¶
a dipstick to measure the gas level of the tank before pumping gas and letting 350 gallons of gas overflow, thereby causing the gas to ignite and the plaintiff working nearby to be burned and thrown by the explosion, did not support an award of punitive damages).¶
tortious interference may be established even though the evidence does not justify an award of punitive damages." Air Ambulance Professionals, Inc. v. Thin Air, 809 So. 2d 28, 30 (Fla. 4th DCA 2002)(although the jury found that one business partner breached his fiduciary duty to the other, the evidence did not "show the type of gross and flagrant behavior on his part that is required for a punitive damage award."). See also Jack Eckerd Corp. v. 558 So. 2d 1060, 1063 (Fla. 1st DCA 1990)(in malicious prosecution action, legal malice which may be inferred from the absence of probable cause is not sufficient to support punitive damages unless "it encompasses a showing of moral turpitude or willful and wanton disregard of the plaintiff's rights, which presupposes the defendant's knowledge or awareness of the risk to plaintiffs rights, or evidence of excessive and reckless disregard of the plaintiffs rights. Legal malice based solely upon the want of probable cause is not sufficient to support an award of punitive damages."); Genesis Publ'ns, 437 So. 2d at 170-71 (the court held that the publishing of a photograph of plaintiff without her permission in violation of a statute did not support the imposition of punitive damages, and that the "terms 'recklessness, wantonness and willfulness,' when used to justify punitive damages implies a knowledge and present consciousness not simply that a statute or right will be viola ed but that injury will result."); Wrains v. M, 175 So. 2d 75, 78 (Fla. 2d DCA 1965)(" iv proof of an intentional tort does not ipso facto entitle the plaintiff to punitive damages.'¶
B. HAS NOT ESTABLISHED A "REASONABLE BASIS" FOR ASSERTING PUNITIVE DAMAGES AGAINST EPSTEIN BASED ON EVIDENCE OR ARGUMENT OFFERED AGAINST (OR ATTEMPTING TO REFUTE) EPSTEIN'S ORIGINAL CLAIMS OR BY OFFERING AFFIRMATIVE DEFENSES
¶
laundry list of arguments and evidence attempting to refute Epstein's claims against him is based on the utterly flawed and unsupported legal premise that the filing itself of an allegedly deficient complaint (even one claimed to be frivolous) provides a reasonable basis for pleading punitive damages. There is no merit whatsoever to principal argument (motion at 5-20) that he is entitled to plead punitive damages against Epstein simply because he has proffered evidence that attempts to dispute Epstein's initial claims against him or because those claims allegedly were not actionable. Punitive damages are not recoverable for the filing of a deficient or even frivolous claim. While attorney's fees may be recoverable pursuant to §57.105, Fla. Stat., for the filing of a baseless claim, neither §57.105, Fla. Stat., nor any other provision of Florida law, authorizes punitive damages for the filing of a purportedly frivolous claim because such conduct does not demonstrate "actual knowledge of the wrongfulness of the conduct and the high probability that damage . . . would result" and intentional pursuit of such conduct, resulting in damage, or "conscious disregard or indifference to the rights of persons exposed to such conduct." Section 768.72(2). Such reprehensible conduct is clearly not shown by the filing of an assertedly frivolous complaint.¶
Assuming arguendo that the filing of a baseless complaint were sufficient to permit leave to assert punitive damages, which it is not, M' motion must still be denied because he has done no more than attempt to refute some of Epstein's allegations, while arguing that his conduct was privileged and that Epstein's invocation of the Fifth Amendment evinces bad faith or creates adverse inferences. None of this evidence or argument provides a valid, legal basis for pleading punitive damages. proffer is patently insufficient and must be rejected.¶
1. Ponzi Scheme, Fraudulent Pitches and Pumping Allegations¶
argues (motion at 6-7) that Epstein's original claims had no merit because was not involved in the Rothstein Ponzi scheme, as claimed in his affidavit and at his deposition, a deposition where refused to answer many of the questions asked of him¶
because of privilege and as to which a motion to compel is still pending. The filing of purportedly insufficient claims does not provide a basis for pleading punitive damages. And the fact that has since denied active involvement in the Ponzi scheme falls critically short of establishing that Epstein acted with the requisite culpability for the imposition of exemplary damages. also contends (motion at 8-11) that Epstein's negligence claim was insufficient and that his alleged constructive notice of the Ponzi scheme was not sufficient to support the RICO and fraud claims, which required criminal intent. As noted earlier, a argument is addressed to claims that are no longer part of the compitt and have not been for some time. More importantly, however, the filing of defici does not itself establish a basis for punitive damages. If that were the case, Rive damages would be awarded every time a motion to dismiss or a motion for summary judgment was granted. Such is clearly not the case. This is but another red herring.¶
also protests "for the sake of completeness" (motion at 10) that he was duped by Rothstein. But a conduct alleged in the Corrected Second Amended Complaint - particularly in paragraphs 20-24, which are largely based on Edward's own privilege log and sworn testimony -- presents the classic jury question of whether was more than constructively aware of Rothstein's conduct. This is more than sufficient to defeat a motion to assert punitive damages. Moreover, is in no position to seek punitive damages, based on this so- called lack of evidence as to his involvement, when, at every turn, he has blocked Epstein's efforts to obtain valid discovery. In any event, a mere denial of the allegations in the initial Complaint is not a sufficient basis for pleading punitive damages. L By the same token, a argument (motion at 8) that he is entitled to plead punitive¶
damages because Epstein "seems to have alleged" that he was harmed by Rothstein's¶
misrepresentations to investors is patently frivolous. Punitive damages obviously cannot be based upon uncertain interpretation of various allegations in a now-superseded complaint. The ultimate inability to prove certain damages, or even a claim, is not a legal basis for asserting punitive damages. As explained in Auto-Owners Ins. Co. v. Hooks, 463 So. 2d 468, 474 (Fla. 1st DCA 1985), in which the court held that the wrongful issuance of a writ of replevin did not support an award of punitive damages: "This theory would open the door to an award of pUnitive damages in every instance in which a party is ultimately unsuccee his resort to the court in pursuit of a legal remedy." The same is true here.¶
Equally irrelevant is M' argument (Motion alleged in the initial Complaint that he was the victim ) that Epstein improperly eme to "pump" the cases because he did not settle them until after left RRA and t contrary to ¶42(h), =I cases had "substantial value." (Id at 19). Even if Epstein's allegations were improper -- which they were not -- baseless allegations in a complaint do not provide a basis for pleading punitive damages. Moreover, the timing of the payment of the settlements in those cases does not prove that Epstein's cases were not used to further the Ponzi scheme, and certainly does not establish any basis for asserting punitive damages. It is without doubt that Rothstein used a victim cases against Epstein to attract investors in October, 2009. Epstein has alleged this in detail in the Corrected Second Amended Complaint. See 1110,15-18,22,24,26. Moreover, the fact that Epstein settled the cases for a certain amount does not constitute an admission of liability or negate what did in the litigation. Those cases were settlements by and between Epstein and the respective plaintiffs and did not release or purport to settle claims Epstein has against Rothstein and Epstein can agree to make payments to the plaintiffs in those cases and still pursue damages for the wrongful conduct of and Rothstein that caused those¶
payments to be incurred. See City of Tallahassee v. Blankenship & Lee, 736 So. 2d 29, 30 (Fla. 1st DCA 1999).¶
Finally, there is no merit to argument that he is entitled to assert punitive damages because his clients' cases against Epstein were filed before he joined RRA. The mere fact that filed those cases before he joined RRA does not necessarily mean that did not commit abuse of process related to those cases after he joined, as alleged in the Corrected Second Amended Complaint. See 11¶30-32.¶
CP¶
'Ii., IM argument (motion at 12-20) that he is entitle to plead punitive damages because the litigation privilege provides an absolute bar to Epstein's original abuse of process claim is wrong on several levels. To recover ok -i ( aim for abuse of process, the plaintiff is required to plead and prove: (1) that the defendant made an illegal, improper, or perverted use of process; and (2) that the defendant had ulterior motives or purposes in exercising such illegal, improper, or perverted use of process; and (3) that as a result of such action on the part of the defendant, the plaintiff suffered damage. S&I Investments v. Payless Flea Market, Inc., 36 So. 3d 909, 917 (Fla. 4th DCA 2010); Peckins v. Kaye, 443 So. 2d 1025, 1026 (Fla. 2d DCA 1983) ("The abuse consists not in the issuance of process, but rather in the perversion of the process after its issuance. The writ or process must be used in a manner, or for a purpose for which it is not by law intended."). Although counsel for has conceded that his claim against Epstein is not malicious prosecution, it is an irrelevant malicious prosecution standard that is improperly trying to interject.¶
2. Litigation Privilege¶
In addition, the filing of a claim that is assertedly subject to an affirmative defense is not a legally sufficient basis for asserting punitive damages. Second, the litigation privilege, which¶
is an affirmative defense, does not categorically bar an abuse of process claim. Under Florida law, there is no immunity for acts undertaken in judicial proceedings that bear no relation to, and are not in furtherance of, those proceedings. See, e.g., Levin, Middlebrooks, Mabie, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 616, 608 (1994). The Corrected Second Amended Complaint identifies conduct outside the protections of the litigation privilege, because went beyond the activity protected by the privilege. See ¶¶ 30-33. It is for a fact finder to determine whether acts were in furtherance of the judicial proceedings or were intended for some other purpose. At most, M' protest that he acted ethically, conducted proper discovery, and had a proper motive, creates issues of fact, or legal issues which might possibly be decided on summary judgment, but fails to provide the necessary independent predicate for the assertion of punitive damages, particularly where the allegations in the Corrected Second Amended Complaint clearly set forth a basis to link to Rothstein's scheme. Regardless of the quantum or nature of proof or the proffer that has marshaled to refute Epstein's abuse of process claim, the fact remains that has failed to demonstrate that Epstein's conduct a to a level evincing wantonness or reckless indifference to M I rights, so as to support punitive damages.3¶
3Edward? argument (Motion at 13-14) that allegations regarding misconduct in connection with the underlying litigation are barred by res judicata is invalid. The doctrine of res judicata applies only if there is an identity of parties and claims, which is clearly not the case elim v. Pan American Airways Corp., 889 So. 2d 149, 153 ( Fla. 4th DCA 2004). was not a party in any of the underlying cases. cites no authority holding that an independent abuse of process claim cannot be based on prior, concluded litigation. To the contrary, the "t act doctrine" allows Epstein to make claims for damages unnecessarily incurred due to conduct. See Arling v. State of Florida, 559 So. 2d 1274, 1275 (Fla. 2d DCA 1990) ("It is well established that attorneys' fees incurred in litigation with a third party may be a recoverable element of damage in a civil action if that litigation was caused by the defendant's wrongful act.").¶
3. Amendment of the Complaint¶
makes much of the fact that the RICO, criminal practices, and fraud claims were dropped from the initial Complaint, thus "confirm[ing] that no reasonable basis ever existed to support any belief in the truth of those allegations" and that the mere filing of an amended complaint warrants punitive damages. (Motion at 2). This argument is specious. No reasonable inference of culpable conduct sufficient to support punitive damages can be drawn from the fact that a party chooses, or is granted leave, to amend his or her complaint, and in so doing, omits certain claims or allegations. cites no decisional authority teport his contention. If that were the appropriate standard for asserting punitive n, in clear contravention of §768.72(2)-(4), Fla. Stat., punitive damages would beco¶
4. Sword And Shield Doctrine¶
There is also no merit to IM contention that he is entitled to seek punitive damages because Epstein invoked his Fifth Amendment privilege in response to certain questions asked by at Epstein's deposition taken in the instant case, which contends proves that Epstein did not intend to permit discovery when he filed the lawsuit. (Motion at 20-22). This argument is nonsensical for several reasons. First, has not offered a scintilla of proof that Epstein was planning to invoke his Fifth Amendment rights at the time he filed his initial Complaint. Epstein's invocation of his constitutional rights in response to certain questions asked at a deposition taken months after he filed suit reveals nothing about his intent when he initiated the litigation.¶
Second, M' contention that invocation of the Fifth Amendment during a deposition is so reprehensible as to support the imposition of punitive damages is meritless, particularly when the questions asked of Epstein, and as to which he invoked his Fifth Amendment privilege,¶
were not calculated to lead to the discovery of admissible evidence. The "sword and shield doctrine" embraces the rule 'that a plaintiff may not seek affirmative relief in a civil action and then invoke the Fifth Amendment to avoid giving discovery in matters pertinent to the litigation."' Delis' v. Bankers, Ins. Co., 436 So. 2d 1099, 1100 (Fla. 4th DCA 1983) (quoting City of St. Petersburg v. Houghton, 362 So. 2d 681, 685 (Fla. 2d DCA 1978) (emphasis added)). See also Brancaccio v. Mediplex Mgmt. of Port St. Lucie, Inc., 711 So. 2d 1206, 1208-1210 (Fla. 4th DCA 1998) (approving City of St. Petersburg and Village Inn Rest v. Aridi, 543 So. 2d 778,782 (Fla. 1st DCA 1989), in which the First District agreed that "sanctions may be necessary where a plaintiff in a civil action invokes the Fifth Amendment privilege against revealing relevant information in pretrial discovery." (emphasis added)). The Fourth District explained in Brancaccio that the "Supreme Court has disapproved of procedures which require a party to surrender one constitutional right in order to assert another..." 711 So. 2d, at 1210. Thus, a "civil defendant [does not] have an absolute right to have the action dismissed any time a plaintiff invokes his constitutional privilege."¶
Here, the information sought from Epstein had nothing to do with any of the parties' claims or defenses. Rather, asked highly inflammable questions relating to sexual conduct_and criminal misconduct that were not designed to, and would not, provide any information relevant to Epstein's abuse of process claims in the instant case or defense of those claims. Numerous questions regarding Epstein's allegedly illegal sexual activities with minors and whether nationally-prominent acquaintances engaged in illegal sexual activities (see Epstein Deposition at 89-95), would clearly not lead to the discovery of evidence relevant to the¶
instant case, and were asked solely to poison the well .4 Indeed, this Court has already sustained objections to such discovery. Significantly, a review of Epstein's deposition demonstrates that he answered questions relevant to the subject litigation, including why he was suing L.M., the Ponzi scheme, and his damages. (See, e.g., Epstein Deposition at 13-14, 19-20, 23, 25, 28-30, 33, 36-8, 48-50, 52, 63, 65, 83, 101).¶
M, who filed a Counterclaim for abuse of process, has persistently refused to produce hundreds of pages of substantive documents, instead furnishing a 159- page privilege log that contains many entries that on their face are clearly not privileged. Under these circumstances, little credence ought to be given to argument that Epstein's assertion of his Fifth Amendment privilege in response to irrelevant discovery requests -- which was entirely justified -- somehow supports a claim for punitive damages.¶
S. Adverse Inferences¶
M' final argument (Motion at 22-5) that he is entitled to punitive damages on the basis of adverse inferences to be drawn from Epstein's assertion of the Fifth Amendment is untenable. First, Epstein's ability or lack of ability to prove his allegations given adverse inferences that may be drawn does not, by any measure, establish a basis for punitive damages based on a wanton disregard for rights. Moreover, the "reasonable inferences" that¶
4 Edwards' counsel asked Plaintiff whether he socialized with Donald Trump in the presence of women under the age of 18. Plaintiff responded by invoking his right against selfincrimination. (Epstein Deposition at 89). Plaintiff also refused to answer the number of times he "engaged in oral sex with females under the age of 18." (Id. at 110).¶
In Boys & Girls Club of Marion County, Inc. v. J.A., 22 So. 3d 855, 856 (Fla. 5th DCA 2009), upon which relies, the court noted that a plaintiff cannot avoid "legitimate" discovery and that a party "is entitled to the discovery contemplated by the rules in order to ascertain the facts and fairly present its defenses." The questions to which Epstein invoked his i all inst self-incrimination were not asked "to ascertain the facts and fairly present ] defenses." Id.¶
asks this Court to draw (see Motion at 23-24) — that Epstein was on a private plane "while sexual assaults were taking place" or that he had physical contact with certain minors - are not probative of Epstein's claims against for abuse of process, let alone probative of whether Epstein's allegations against reflect the "type of gross and flagrant behavior on [Epstein's] part that is required for a punitive damages award." Thin Air, 809 So. 2d at 30.5 Again, a' argument is a red herring and must be rejected.¶
C. CANNOT SEEK PUNITIVE DAMAGES BECAUSE HIS COUNTERCLAIM FAILS AS A MATTER OF LAW¶
It is axiomatic that cannot seek punitiv dat ges from Epstein because a Counterclaim for abuse of process fails to Counterclaim is based solely on allegations that Csteins filing of an insufficient complaint against him constitutes abuse of process. Under settled Florida law, however, the tort of abuse of process requires proof that the judicial system was misused for an ulterior purpose after an action is filed and process served. See, e.g.; Della-Donna v. Nova University, Inc., 512 So. 2d 1051, 1055 (Fla. 4th DCA 1987); McMurray v. U-Haul Co, Inc., 425 So. 2d 1208, 1209-10 (Fla. 4th DCA 1983). Thus, the filing of an action does not itself constitute abuse of process. Della-Donna, 512 So. 2d at 1056. Because a alleges only that Epstein abused process by filing id claim for relief. a¶
5 Edwards filed a supplement to his "proffer," consisting of Epstein's response to a Request for Production served June 9, 2011. Based on that response, asserts i tein does not have and has never had any documentary support for his contention that had knowledge about Rothstein's commission of . . . fraud . . . ." Significantly, Epstein stated in his response to that request for production that due to a objections to Epstein's request for such documents, all documents could not be produced. However, certain documents in Epstein's man were responsive. Thus, contrary to contention, Epstein's response to for production does not demonstrate that Epstein has no documentary support. is estopped to argue that Epstein's failure to produce extensive documentation is a basis for to recover punitive damages.¶
an unfounded complaint against him, his Counterclaim is not actionable, and absent a viable Counterclaim, cannot plead or prove any damages, let alone punitive damages.¶
CONCLUSION¶
Based on the foregoing arguments and authorities, Plaintiff/Counter-Defendant Jeffrey Epstein respectfully requests that this Court enter an Order denying Defendant/Counter -Plaintiff motion for leave to assert a claim for punitive damages, and lifrant such other and further relief as deemed necessary and proper.¶
O¶
Respectfully submitted, C¶
B¶
J eph L. • ckerrnan, Es Fla. Bar No. 235954 FOWLERM BURNETT, P.A. r 901 Point West y 777 South Flagler Drive West Palm Beach, Florida 33401 Telephone: (561) 802-9044 Facsimile: (561) 802-9976 Attorneys for Jeffrey Epstein, Plaintiff¶
and¶
E. Knight Fla. 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 Attorneys for Jeffrey Epstein, Plaintiff¶
CERTIFICATE OF SERVICE¶
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via e-mail
and U.S. Mail this 21st day of September, 2011 to:¶
Jack Scarola, Esq.
Searcy Denney Scarola Barnhart & Shipley, P.A
2139 Palm Beach Lakes Blvd.
West Palm Beach, FL 33409¶
Jack A. Goldberger, Esq.
Atterbury Goldberger & Weiss, P.A.
250 Australian Avenue South, Suite 1400
West Palm Beach, FL 33401-5012¶
Marc S. Nurik, Esq.
Law Offices of Marc S. Nurik
One E. Broward Blvd., Suite 700
Ft. Lauderdale, FL 33301¶
By:¶