IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA¶
JEFFREY EPSTEIN,¶
Plaintiff,¶
vs.¶
SCOTT ROTHSTEIN individually, , individually, and L.M., individually,¶
Defendant,¶
CASE NO.: 502009CA0408003O9CXMBAG¶
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DEFENDANT/COUNTERPLAINTIFF'S RESPONSE AND SUPPORTING LEGAL AUTHORITIES IN OPPOSITION TO COUNTERDEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AND/OR MOTION FOR SUMMARY JUDGMENT ON COUNTERCLAIM FOR ABUSE OF PROCESS¶
Defendant/Counterplaintiff, J. ME, files this Response and Supporting Legal Authorities in Opposition to/ PlaingPtounterdefendant, Jeffrey Epstein's Motion for Judgment on the Pleadings and/or Motion for Summary Judgment on Counterclaim for Abuse of Process and states:¶
Epstein is a convicted felon having entered into a plea agreement pursuant to which he effectively conceded his having engaged in illicit sexual activity with a large number of female children. (See Counterclaim at ¶4) A large number of his victims have filed civil suits, many of which remain pending and which potentially subject Epstein to large judgments for both compensatory and punitive damages. (Counterclaim at ¶5) clients, including L.M., are among those victims who continue the prosecution of their claims against Epstein. (Counterclaim at ¶7) Epstein has no substantive defense to these claims, as he has repeatedly invoked the Fifth Amendment and refused to answer any substantive questions regarding his¶
sexual exploitation of his minor victims. (Counterclaim at ¶6) Epstein has employed the extraordinary financial resources at his disposal to intimidate his victims into abandoning or compromising their legitimate claims. Id. Epstein has initiated claims against Edwards and L.M. for the sole purpose of intimidating L.M. and others to abandon legitimate claims against Epstein or to coerce them into settling these claims for less than their value. (Counterclaim at ¶9) Epstein's Complaint alleges that was a knowing participant in a civil theft and criminal enterprise. (Counterclaim at ¶10) Epstein is well aware that there is no evidence to support these false assertions. Id. Epstein's actions in filing his baseless lawsuit are tantamount to extortion and form the basis for Edwards' Counterclaim for abuse of process.¶
Judgment on the pleadings should be granted only where the Court concludes, based upon the pleadings alone, that the movant rly entitled to judgment as a matter of law, after taking every fact alleged by th n ne' -> ) ding party as true and all facts alleged by the moving party and denied by the n-moeparty as false. See Harris v. Kearney, 786 So. 2d 1222, 1225 (Ha. 4th DCA 2001). in most instances, a motion for judgment on the pleadings will end up being much the.same, in practice, as a motion to dismiss, although made after an answer is served.'¶
The pleadings in this case establish a cause of action for abuse of process. A cause of action for abuse of process requires proof of the following elements: (1) the defendant made an illegal, improper, or perverted use of process; (2) the defendant had an ulterior motive or purpose¶
Epstein previously filed a Motion For More Definite Statement and/or Motion to Dismiss with respect to M. Counterclaim. The motion was denied. While the prior motion did not raise the same grounds raised herein, it is worth noting that this Court previously determined that Counterplaintiffs Counterclaim could stand.¶
in exercising the illegal, improper or perverted process; and (3) the plaintiff was injured as a result of defendant's action. Della-Donna v. Nova Univ., Inc., 512 So.2d 1051 (Fla. 4th DCA 1987). In an abuse of process action, process may mean an action that is initiated independently such as the commencement of a suit, or one initiated collaterally, such as filing of a counterclaim. Peckins v. Kaye, 443 So. 2d 1025, 1026 (F gravamen of the cause of action involves the use of process to purpose for which it was not designed. Id., see also Scozar (Fla. 3d DCA 1989). The usual case involves some f 751, citing Bothmann v. Harrington, 458 So. hment or the A 1984). The lish some wrongful e, 546 So. 2d 750, 751-52 ortion. Scozari, 546 So. 2d at 63, 1169 (Fla. 3d DCA 1984). The allegations contained in Counterclaim, which must be taken as true for purposes of deciding a motion for judgment on the pleadings, establish these necessary elements. The Counterclaim alleges that Epstein has commenced a lawsuit against for the sole purpose of attempting to intimidate and his clients, including L.M., into either abandoning or settling legitimate claims fot less than their just and reasonable value. (See Counterclaim at ¶ 9 and 11) The Comiterclaim also alleges that Epstein's Complaint has no basis in law or fact and that Edwards has been injured as a result. (Counterclaim at ¶¶ 10 and 12)¶
acknowledges that there is no abuse of process when the process is used to accomplish the result for which it was intended, regardless of an incidental or concurrent motive of spite or ulterior purpose, such as harassment. Scozari, 546 So. 2d at 751. However, in this case, it is alleged that the claims against for participating in a civil theft and criminal enterprise have no factual basis or legal merit whatsoever (i.e. Epstein's lawsuit was not filed to¶
accomplish the result intended (to either prevail or settle a meritorious claim). Indeed, Epstein completely ignored the statutory requirement for written notice prior to the initiation of a civil theft claim. (Counterclaim at V 0) This is one manner in which the cases cited by BEM are distinguishable. Additionally, many of the cases cited by Epstein note that &mere filing a complaint with an ulterior motive of harassment will not alone con se of process. However, Counterplaintiffs allegations involve more than mere ment, they involve allegations of an attempt by Epstein to coerce into ising the legitimate claims his clients have against Epstein for molestation. Even the cited by the Counterdefendant recognize that allegations of a coercive or collateral effect, like the kind set forth in counterclaim, will be sufficient. For example, in Miami Herald Publishing Co. v Ferre, 636 F.Supp. 970 (S.D. Fla. 1985), the Court notes that an improper motive is not sufficient and explains that what is needed is i gation of a collateral, coercive effect. Quoting McMurray v. U-Haul Co., 425 So. 2d 21 08, 1 n.1 (Fla. 4th DCA 1983), the Ferre Court states that:¶
An abuse of process arises only when there has been a perversion of court processes to accomplish some end which the process was not intended by law to accomplish, or which compels the party against whom it has been used to do some collateral thing which he could not legally and regularly be compelled to do. \ —¶
The case of Scozari, supra is instructive. In Scozari an attorney was sued for abuse of process after filing an action to impose an equitable lien and lis pendens against the home of his clients former live-in boyfriend who had left the state with the couple's child. 546 So. 2d at 751. The Third District held that summary judgment should not have been entered where the lawyer's own testimony indicated that he filed the action at least in part as a bargaining chip. The Court noted:¶
If there was a reasonable basis in law and fact to initiate the judicial proceedings, then these processes were justified even though they may have served some other collateral purpose. However, if there was no reasonable basis in law and fact to bring the action to impress a lien on property, and this was done without any reasonable justification under the law and to force or compel thy_ appellant to resolve some custody dispute, induce the appellant to pay money, or tic up the appellant's property, then there has been an abuse of process. (emphasis added).¶
Id. at 752. Likewise, the counterclaim in this case alleges duit Epstein filed this action with no reasonable basis in law or fact in order to force or ards to resolve other pending cases against Epstein. See also, Bothmann, supra, 8 So. 2d at 1169, n 8 (noting that in an abuse of process claim, the improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or club). Based upon the foregoing authorities, the pleadings in this matter set forth a cause of action for abuse of process and Epstein's Motion for Judgment on the Pleadings must be denied.¶
Epstein has also moved for summary judgment on abuse of process claim. It is axiomatic that summary judgment may not be granted unless the moving party is able to show that no genuine issues of material fact exist. Payne v. Cudjoe Gardens Property Owners Ass'n, Inc., 837 So. 2d 458, 461 (Fla. 3d DCA 2002). Epstein has failed to establish an absence of the disputed issues of fact created by the pleadings. Furthermore, summary judgment is premature because discovery is not complete. Epstein just answered the counterclaim on March 15, 2010. Where discovery is not complete, the facts are not sufficiently developed to enable the trial court¶
to determine whether genuine issues of material facts exist. Id., see also v. Star, 510 So.¶
2d 637, 639 (Fla. 4'h DCA 1987). As the court noted in Payne, supra, 837 So.2d at 461:¶
Where discovery is not complete the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist. See v. Star 510 So.2d 637, 639 (Fla. 4th DCA 1987). Thus where disco, still pending the entry of summary judgment is premature. See v. 734 So.2d 1142, 1144 (Fla. 5th DCA 1999)("Parties to lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure including the taking of depositions and it is reversible error to enter summary judgment when discovery is in progress and the deposition of party is pending."); 702 So.2d 616, 616 (Fla. 3d DCA 1997)(reversing the entry of Summary Judgment where depositions had not been completed and request for the production of documents was outstanding); Collazo v. Rupert 693 So.2d 631, 631 (Fla. 3d DCA 1997)(holding that a trial court should not entertain motion for summary judgment while discovery is still pending); Spradley v. Stick 622 So.2d 610, 613 (Fla. 1st DCA 1993).¶
See also, Brandauer v. Publix upermarkets, Inc., 657 So. 2d 932 (Fla. 2nd DCA 1995)(abuse of discretion to gran judgment where opposing party has not had an opportunity to complete discove¶
Wherefore, the Defertdant/Counterplaintiff, J. respectfully requests this Court to enter an Order denying Plaintiff/Counterdefendant, Jeffrey Epstein's Motion for Judgment on the Pleadings and/or Motion for Summary Judgment on Counterclaim for Abuse of Process.¶
Case No.: 502009CA040800XXXXXMBAG¶
Defendant/Counterplaintiff's Response and Supporting Legal Authorities in Opposition to Counterdefendant's Motion for Judgment on the Pleadings and/or Motion for Summary Judgment¶
Page 7 of 8¶
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to all counsel on the attached list, this 3rd day of May, 2010.¶
Jack Scarola¶
Florida Bar No.: 169440¶
Searey Denney Scarola Barnhart & Shipley, P.A.¶
2439 Palm Beach Lakes Boulevard¶
West Palm Beach, Florida 33409¶
Phone: (561) 686-6300¶
Fax: (561) 383-9451¶
Attorneys for Plaintiff(s)¶
NOTA CERTIFIED¶
Case No.: 502009CA040800)OCXMBAO¶
Defendant/Counterplaintiffs Response and Supporting Legal Authorities in Opposition to Counterdefendant's Motion for Judgment on the Pleadings and/or Motion for Summary Judgment¶
Page 8 of 8¶
COUNSEL LIST¶
Jack A. Goldberger, Esquire¶
Atterbury, Goldberger & Weiss, P.A.¶
250 Australian Avenue South, Suite 1400¶
West Palm Beach, FL 33401¶
Phone: (561)-659-8300¶
Fax: (561)-835-8691¶
Attorneys for Jeffrey Epstein¶
Robert D. Critton, Jr., Esquire¶
Burman, Critton, Luttier & Coleman LLP¶
303 Banyan Boulevard, Suite 400¶
West Palm Beach, FL 33401¶
Phone: (561)-842-2820¶
Fax: (561)-844-6929¶
Attorneys for Jeffrey Epstein¶
_, q, Jaffe, Weissing, et al¶
425 N. Andrews Avenue, Suite 2¶
Fort Lauderdale, FL 33301¶
Phone: 954-524-2820¶
Fax: 954-524-2822¶
Attorneys for Defendant, L.M.¶
Law Offices of Marc S. Nurik¶
One East Broward Boulevard, Suite 700¶
Fort Lauderdale, FL 33301¶
Phone: 954-745-5849¶
Fax: 954-745-3556¶
Counsel for Scott Rothstein¶