by date← Jul 20, 2009·Jul 20, 2009 →

EFTA01070451

Dataset 9

July 20, 200950 pages15,294 words

https://www.justice.gov/epstein/files/DataSet%209/EFTA01070451.pdf

Extracted Text

Highlighting: “"Bruce E. Reinhart"”

Document 207 Entered on FLSD Docket 07/20/2009 Page 2 of 9 Case 9:08-cv-80119-KAM JANE DOE NO. 6 CASE NO.: 08-CV-80994-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE NO. 7 CASE NO.: 08-CV-80993-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant C.M.A. CASE NO.: 08-CV-80811-MARR/VJOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE CASE NO.: 013-CV-80893-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant 2 EFTA01070451 Document 207 Entered on FLSD Docket 07/20/2009 Page 3 of 9 Case 9:08-cv-80119-KAM DOE II CASE NO.: 09-CV-80469-MARRA/JOHNSON Plaintiff, VS. JEFFREY EPSTEIN, Defendant. JANE DOE NO. 101 CASE NO.: 09-CV-80591-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE NO. 102 CASE NO.: 09-CV-80656-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ORDER REGARDING PLAINTIFF, C.M.A.'S, MOTION FOR PROTECTIVE ER, INC, DR. SERGE THYS, TREATMENT RECORDS FROM PARENT-CHILD CENT BEACH COUNTY, GOOD DOMINIQUE HYPPOLITE/SCHOOL DISTRICT OF PALM FLORIDA ATLANTIC SAMARITAN HOSPITAL ST. MARY'S HOSPITAL, INCORPORATED UNIVERSITY AND GLORIA C. HAKKARAINEN, M.D. AND MEMORANDUM OF LAW attorneys, hereby files her Plaintiff, C.M.A., by and through her undersigned Records From Parent-Child Center, Motion For Protective Order Regarding Treatment ct of Palm Beach County, Good Inc., Dr. Serge Thys, Dominique Hyppolite/School Distri Atlantic University and Gloria C. Samaritan Hospital, St. Mary's Hospital, Florida 3 EFTA01070452 Document 207 Entered on FLSD Docket 07/20/2009 Page 4 of 9 Case 9:08-cv-80119-KAM and in support there of Hakkarainen, M.D. and Incorporated Memorandum of Law, states as follows: st Defendant, 1. This is an action to recover money damages again committed upon the then- JEFFREY EPSTEIN, for acts of sexual abuse and prostitution minor, C.M.A. EIN for separate 2. Plaintiff has plead thirty separate counts against EPST tiff pursuant to 18 U.S.C. incidences of abuse committed by EPSTEIN against Plain injuries", creates a private §2255. 18 U.S.C. §2255, entitled °Civil remedy for personal s of certain enumerated sex right of action for minor children who were the victim or for the amount of damages a offenses. 18 U.S.C. §2255 also creates a statutory flo also alleged a single count of victim can recover for a violation of same. Plaintiff has Sexual Battery against EPSTEIN. EIN a disagreement 3. There presently exists between the Plaintiff and EPST in 18 U.S.C. §2255 is recoverable as to whether the statutory damage floor established listed in 18 U.S.C. §2255, or for each commission of an enumerated sex offenses ced once, regardless of how many whether the statutory damage floor can only be enfor se against a minor victim. times a defendant perpetrates an enumerated sex offen the subject of 4. This disagreement between the parties is properly For Failure to State a Cause Defendants Motion to Dismiss First Amended Complaint ; Motion to Strike, and Supporting of Action, and Motion For More Definite Statement is currently pending before Memorandum of Law (Attached hereto as Exhibit "A") which this Court 4 EFTA01070453 Case 9:08-cv-80119-KAM Document 207 Entered on FLSD Docket 07/20/2009 Page 5 of 9 5. In the event that the Court rules that Plaintiff can recover the statutory damage floor established in 18 U.S.C. §2255 for each proven incident of abuse committed by EPSTEIN upon her, Plaintiff intends to rely exclusively on the statutory damages, rather than those damages which are available at common law. (See Plaintiff, C.M.A.'s Conditional Notice of Intent to Exclusively Rely on Statutory Damages Provided by 18 U.S.C. §2255 attached hereto as Exhibit "B"). If however, the Court rules that the statutory floor applies only one time, regardless of the number of times EPSTEIN committed an enumerated sexual offense against her, Plaintiff will be pursuing all damages available to her at both common law and by statute. 6. Given Plaintiffs intent to rely exclusively on the statutory damages available to her under 18 U.S.C. §2255 as outline above, Plaintiff will not be presenting any evidence of the extent of her physical, emotional, or pecuniary injuries, beyond evidence that she was the victim of sexual contact to which she was legally incapable of consenting by virtue of her age (including, pain and suffering, emotional distress, psychological trauma, mental anguish, humiliation, embarrassment, loss of self-esteem, loss of dignity, invasion of her privacy, and loss of the capacity to enjoy life). Accordingly, any testimony and/or discovery regarding those types of damages would not be relevant to any material issue pending in this case. 7. Presently pending before the Court is Defendant EPSTEIN's Motion to Compel Plaintiff C.M.A. to Respond to Defendant's First Request to Produce and Answer Defendant's First Set of Interrogatories, and to Overrule Objections, and For an Award of Defendants Reasonable Expenses (Attached hereto as Exhibit "C"). 5 EFTA01070454 Case 9:08-cv-80119-KAM Document 207 Entered on FLSD Docket 07/20/2009 Page 6 of 9 EPSTEIN is seeking from Plaintiff the production of certain treatment records of hers from the Parent-Child Center, Inc., Dr. Serge Thys, a psychiatrist, Dominique Hyppolite/School District of Palm Beach County, Good Samaritan Hospital, St. Mary's Hospital, Florida Atlantic University and Gloria C. Hakkarainen, M.D. 8. None of the treatment records from the Parent-Child Center, Inc., Dr. Serge Thys, Dominique Hyppolite/School District of Palm Beach County, Good Samaritan Hospital, St. Mary's Hospital, Florida Atlantic University and Gloria C. Hakkarainen, M.D. will have any relevance whatsoever in the event that Plaintiff pursues only those statutory damages available to her under 18 U.S.C. §2255. To the contrary, the production of these confidential and private treatment records would only serve to further humiliate, embarrass, and victimize C.M.A. 9. Furthermore, C.M.A.'s treatment records from the Parent-Child Center, Inc., Dr. Serge Thys, Dominique Hyppolite/School District of Palm Beach County, Good Samaritan Hospital, St. Mary's Hospital, Florida Atlantic University and Gloria C. Hakkarainen, M.D. are protected by the psychotherapist-patient privilege pursuant to the Supreme Court's decision in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923 (1996)("All agree that a psychotherapist privilege covers confidential communications made to licensed psychiatrists and psychologists. We have no hesitation in concluding in this case that the federal privilege should also extend to confidential communications made to licensed social workers in the course of psychotherapy.") Ordinarily, a plaintiff does not place her mental condition in controversy merely by requesting damages for mental anguish or "garden variety' emotional distress. In order to place a party's mental 6 EFTA01070455 Case 9:08-cv-80119-KAM Document 207 Entered on FLSD Docket 07/20/2009 Page 7 of 9 condition in controversy the party must allege a specific mental or psychiatric disorder or intend to offer expert testimony to support their claim of emotional distress. Turner v Imperial Stores, 161 F.R.D. 89 (S.D.Cal. 1995). The evidence sought is also protected under the substantive privacy rights recognized in Florida Statute §§90.503 and 90.5035. 10. Accordingly, Plaintiff respectfully moves for the entry of a protective order pursuant to Fed. R. Civ. Pro. 26(c) regarding Plaintiffs treatment records from the Parent-Child Center, Inc., Dr. Serge Thys, Dominique Hyppolite/School District of Palm Beach County, Good Samaritan Hospital, St. Mary's Hospital, Florida Atlantic University and Gloria C. Hakkarainen, M.D. More particularly, Plaintiff requests the entry of an order precluding the discovery of those records until such time as the Court rules on the issue regarding whether the statutory damage floor as contained in 18 U.S.C. §2255 applies to each proven commission of an enumerated sexual offense by EPSTEIN against CMA. Should the Court rule that 18 U.S.C. §2255 provides a per incident damage floor, the treatment records would have absolutely no relevance whatsoever. In the event that the Court rules that the damage floor applies only once, the parties can then further brief the Court as to whether C.M.A has placed her mental condition In controversy" such that it operates as a waiver of the psychotherapist-patient privilege. WHEREFORE, Plaintiff, C.M.A., respectfully requests that this Court enter a protective order preventing the discovery of Plaintiff's treatment records from the Parent-Child Center, Inc., Dr. Serge Thys, Dominique Hyppolite/School District of Palm Beach County, Good Samaritan Hospital, St. Mary's Hospital, Florida Atlantic University 7 EFTA01070456 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 1 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 1 of 21 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80811-MARRAIJOHNSON C.M. Plaintiff, v. Y EPSTEIN and fill Defendants, DEFENDANT JEFFREY EPSTEIN'S MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION, AND MOTION FOR MORE DEFINITE STATEMENT: MOTION TO STRIKE, AND SUPPORTING MEMORANDUM OF LAW Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and through his undersigned counsel, moves to dismiss Count I through XXXI of Plaintiff's First Amended Complaint for failure to state a cause of action, and for more definite statement, or to strike, as specified herein. Rule 12(b)(6), (e) and (f), Fed.R.Civ.P. (2008); Local Gen. Rule 7.1 (S.D. Ma. 2008). In support of dismissal, Defendant states: The First Amended Complaint attempts to allege 32 counts. Counts I through XXX are purportedly brought pursuant to 18 U.S.C. §2255 - Civil Remedies for Personal Injuries; Count XXXI is entitled °Sexual Battery," and Count XXXII is entitled "Conspiracy to Commit Tortlous Assault only against Defendant, ." Under the heading "Factual Allegations" of the First Amended Complaint, Plaintiff also references numerous federal and state criminal statutes, but fails to allege whether or not she is attempting to assert claims based on these statutes. (¶15, 1st Am. Comp.). EFTA01070457 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 2 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 2 of 21 C.M.A. v. Epstein, et al. Page 2 Dismissal is required on the following grounds: (1) A review of the complaint allegations establishes that Plaintiff has failed to state the 30 causes of action under 18 U.S.C.A. 2255. As discussed more fully below herein, this statute does not allow for the Plaintiff to allege 30 separate causes of action; rather, the statute allows for the Plaintiff to attempt to assert one claim. In addition, Plaintiff has failed to allege a violation of the requisite predicate act as identified in 18 U.S.C. §2255 in order to state a cause of action. Thus, Counts I through )CO( against EPSTEIN are required to be dismissed. Rule 12(b)(6), Fla.R.Civ.P. (2) Count XXXI — Sexual Battery is also required to be dismissed for failure to state a cause of action as Plaintiff has failed to allege the requisite elements of such claim. The count fails to sufficiently allege whether it is being brought pursuant to common or statutory law. Further, in Count XXXI, Plaintiff reincorporates in their entirety Counts I through XXX; such pleading is improper and requires dismissal under the applicable Federal Rules of Civil Procedure. Supporting Memorandum of Law I. Motion To Dismiss Standard As established by the Supreme Court in Bell Atlantic Corp, V. Twombly 127 S.Ct. 1955 (2007), a motion to dismiss should be granted if the plaintiff does not plead "enough facts to state a claim to relief that is plausible on its face' Id, at 1974. Although the complaint need not provide detailed factual allegations, the basis for relief in the complaint must state "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id, at 1965. Further, "If'actual allegations must be enough to raise a right to relief above the speculative level ... on the EFTA01070458 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 3 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 3 of 21 C.M.A. v. Epstein, et al. Page 3 assumption that all the allegations in the complaint are true (even if doubtful in fact)' Id. On a motion to dismiss, the well pleaded allegations of plaintiffs complaint are taken as true and construed in the light most favorable to the plaintiff. M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153. 1156 (11th Cir.2006). Significantly, the Supreme Court in Bell Atlantic Corp. V. Twombly abrogated the often cited observation that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Id, (abrogating and quoting Conley v. Gibson. 355 U,S. 41, 45-46, 78 S.Ct. 99, 102. 2 L.Ed.2d 80 (1957)). The Supreme Court rejected the notion that "a wholly conclusory statement of claim [can] survive a motion to dismiss whenever the pleadings le[ave] open the possibility that a plaintiff might later establish some 'set of [undisclosed] facts' to support recovery." Id. As explained by the Supreme Court in Bell Atlantic Corp., supra at 1664-65: While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid.. Sanivan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247. 251 (C.A.7 1994), a plaintiffs obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain. 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (19861 (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller. Federal Practice and Procedure & 1216, pp. 235-236 (3d ed.2004) (hereinafter Wright & Miller) ("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A.. 534 U.S. 506, 508, n. 1, 122 S.Ct. 992. 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327. 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (" Rule 12(b)(61 does not countenance ... dismissals based on a judge's disbelief of a complaint's EFTA01070459 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 4 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 4 of 21 C.M.A. v. Epstein, et al. Page 4 factual allegations"); Scheuer v. Rhodes. 416 U.S. 232, 236. 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely"). In discussing Twomblv, the Eleventh Circuit in Walls v. Fla. International Univ. 495 F.3d 1289, 1295 (11th Cir. 2007), noted - "The Supreme Court's most recent formulation of the pleading specificity standard is that 'stating such a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element." In order to sufficiently allege the claim, the complaint is required to identify "facts that are suggestive enough to render [the element] plausible." Watts. 495 F.3d at 1296 (quoting Twomblv, 127 S.Ct. at 1965). II. Standard for More Definite Statement, Pleading, & Motion to Strike Pursuant to Rule 12(e), a party may move for more definite statement of a pleading to which a responsive pleading is allowed where the pleading "is so vague or ambiguous that the party cannot reasonably frame a response! The motion is required of to point out the defects and the desired details. Id. As to the general rules and form pleading, Rules 8 and 10, a claim for relief must contain "a short plain statement of the claim showing that the pleader is entitled to relief," Rule 8(a)(3); and may contain (3). alternative claims within a count or as many separate claims. Rule 10(d)(2) and an Pursuant to Rule 12(f) - Motion to Strike, "the court may strike from a pleading Insufficient defense or any redundant, immaterial, impertinent, or scandalous matter! III. Counts I through XXX, 18 U.S.C. 42255, are required to be dismissed. on behalf of a minor A. 18 U.S.C. 42255 creates a single civil remedy or cause of action a "per violation" basis. plaintiff against a defendant The civil remedy afforded is not on EFTA01070460 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 5 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 5 of 21 C.M.A. v. Epstein, et al. Page 5 Contrary to Plaintiffs attempted assertion of 30 separate counts pursuant to 18 U.S.C.A. §2255 - Civil Remedy for Personal Injunes, this statute creates a single federal cause of action or "civil remedy" for a minor victim of sexual, abuse, molestation and exploitation. Under the plain meaning of the statutory text, §2255 does not create separate causes of action on behalf of a minor against a defendant on a "per violation" basis. No where in the statutory text is there any reference to the civil remedy afforded by this statute as being on a "per violation" basis. 18 U.S.C. 2255(a) creates a civil remedy for "a minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation ... ." See Smith v. Husband, 428 F.Supp.2d 432 (E.D. Va. 2006); Smith v. Husband, 376 F.Supp.2d 603 (E.D. Va. 2006)• Doe v. Liberatore 478 F.Supp.2d 742, 754 (M.D. Pa. 2007); and the recent cases in front of this court on Defendant's Motions to Dismiss and For More Definite Statement — Doe No. 2 v. Epstein, 2009 WL 383332 (S.D. Fla. Feb. 12, 2009); Doe No. 3 v. Epstein 2009 WL 383330 (S.D. Fla. Feb. 12, 2009) Doe No. 4 v. Epstein, 2009 WL 383286 (S.D. Fla. Feb. 12, 2009); and Doe No. 5 v. Epstein, 2009 WL 383383 (S.D. Fla. Feb. 12, 2009). There is no reported case supporting Plaintiffs tortured and nonsensical interpretation of §2255. In all of these cases (cited above), each of the Plaintiffs brought a single count or cause of action attempting to allege numerous violations of the "predicate acts" specifically identified in §2255. "18 U.S.C. §2255 gives victims of sexual conduct who are minors a private right of action." Martinez v. White 492 EFTA01070461 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 6 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 6 of 21 C.M.A. v. Epstein, et at Page 6 F.Supp.2d 1186, 1188 (N.D. Cal. 2007), (emphasis added). 18 U.S.C.A. §2255 "merely provides a cause ot action tor damages in •any appropriate united btates uistrict Court." Id, at 1189. See also Tilton v. Playboy Entertainment Group, Inc., 554 F.3d 1371 (11th Cir. Jan. 15, 2009)(District Court granted plaintiff "the minimum 'actual damages' prescribed by §2255(a)," wherein plaintiff alleged that defendants had violated three of the statutory predicate acts). In improperly attempting to bring 30 separate counts pursuant to §2255, Plaintiffs complaint alleges In part that "beginning In approximately late May or early June of 2002, and continuing until approximately August of 2003, the Defendant coerced and enticed the impressionable, vulnerable, and economically deprived then minor Plaintiff to commit various acts of sexual misconduct. These acts occurred, on average, one to three times per week from late may or early June of 2002 until August 2003. At a bare minimum these acts occurred twice a month from June 2002 until August of 2003? Am. Complaint, ¶13. Plaintiff then claims the identical damages In each of the 30 §2255 counts. See ¶¶25, 31, 37, 43, 49, 55, 61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, 133, 139, 145, 151, 157, 163, 169, 175, 181, 187, 193, and 199. As well, in Count XXXI, entitled °Sexual Battery," Plaintiff claims the identical "actual damages" in that she realleges and Incorporates each and every of the 199 allegations In the 30 prior counts. It is well settled that in interpreting a statute, the court's inquiry begins with the plain and unambiguous language of the statutory text. CBS. Inc. v. Prime Time 24 Venture 245 F.3d 1217 (11th Cir. 2001); U.S. v. Castroneves, 2009 WL 528251, *3 (S.D. Fla. 2009), citing Reeves v, Astrue 526 F.3d 732, 734 (11th Cir. 2008); and Smith EFTA01070462 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 7 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 7 of 21 C.M.A. v. Epstein, et al. Page 7 v. Husband, 376 F.Supp.2d at 610 ("When interpreting a statute, [a court's] inquiry begins with the text."). "The Court must first look to the plain meaning of the words, and scrutinize the statute's 'language, structure, and purpose.'" Id. In addition, in construing a statute, a court is to presume that the legislature said what it means and means what it said, and not add language or give some absurd or strained interpretation. As stated in CBS. Inc. supra at 1228 — 'Those who ask courts to give effect to perceived legislative Intent by interpreting statutory language contrary to its plain and unambiguous meaning are in effect asking courts to alter that language, and '[c]ourts have no authority to alter statutory language.... We cannot add to the terms of [the] provision what Congress left out.' Merrill, 120 F.3d at 1187." See also Dodd v. U.S. 125 S.Ct. 2478 (2005); 73 Am.Jur.2d Statutes §124. Title 18 of the U.S.C. is entitled °Crimes and Criminal Procedure." §2255 is contained in "Part I. Crimes, Chap. 110. Sexual Exploitation and Other Abuse of Children." 18 U.S.C. §2255 (2003), is entitled Civil remedy for personal injuries, and provides: (a) Any minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal Injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit, Including a reasonable attorney's fee. Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than $50,000 in value. (b) Any action commenced under this section shall be barred unless the complaint Is filed within six years after the right of action first accrues or In the case of a person under a legal disability, not later than three years after the disability. Reading the entire statute in context, no where is there any language indicating that a minor plaintiff has a private right of action against a defendant "per violation." EFTA01070463 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 8 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 8 of 21 C.M.A. v. Epstein, et al. Page 8 Under the statutory rules of construction, had the legislature intended to give a plaintiff multiple causes of action against a defendant on a per violation basis, the statute would have Included such language. Had Congress wanted to create such a remedy as Plaintiff attempts to bring, it could have easily included language of "per violation" after the presumptive damages amount in subsection (a). By its own terms, the statute provides for the recovery of "actual damages the minor sustains and the cost of the suit, including attorney's fees." There is absolutely no language that allows for a plaintiff to multiply the specified or presumptive damages recoverable on a "per violation" basis. The Plaintiffs position on §2255 puts a strained interpretation with an absurd result. The absurdity of Plaintiffs position is further evidenced by Count XXXI — "Sexual Battery" where Plaintiff reincorporates each of the 30 counts and seeks the identical "actual damages." in Martinez v. White, supra, the defendants sought to dismiss plaintiffs' 18 U.S.C. §2255 action based on forum non conveniens. The Northern District of California Court, relying on the rules of statutory construction, rejected plaintiffs' argument that Congress had intended to abrogate the forum non conveniens doctrine in a §2255 action; the District Court noted that the statute does not contain a mandatory venue provision. Had Congress wanted to get rid of the forum non-conveniens doctrine, it would have said so In the statute. Also, in Smith v. Husband, 428 F.Supp. 432; and 376 F.Supp.2d 603, the plaintiff invoked "the accompanying civil remedy for these criminal violations, stating that she has sustained and continues to sustain physical and mental damages, humiliation, and embarrassment as a result of Defendant's criminal acts." In other words, she EFTA01070464 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 9 of 21 Case 9:08-cv-B0811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 9 of 21 C.M.A. v. Epstein, et al. Page 9 brought a single cause of action, based on allegations of multiple violations of the §2255 predicate acts. Furthermore, the court refused to add a venue interpretation that simply was not written into the statutory text. See other §2255 cases cited herein. For an example of a statute wherein the legislature included the language "for each violation" in assessing a "civil penalty," see 18 U.S.C. §216, entitled "Penalties and injunctions," of Chapter 11 — "Bribery, Graft, and Conflict of Interests," also contained In Title 18 — "Crimes and Criminal Procedure." Subsection (b) of §216 gives the United States Attorney General the power to bring a "civil action ... against any person who engages In conduct constituting an offense under' specified sections of the bribery, graft, and conflicts of interest statutes. The statute further provides in relevant part that "upon proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty of not more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, which ever amount is greater." As noted, 18 U.S.C. §2255 does not include such language. Accordingly, Plaintiffs multiple counts brought pursuant to §2255 are required to be dismissed for failure to state multiple causes of action. B. Also requiring dismissal Plaintiff has failed to sufficiently allege the requisite §2255 predicate acts. Also requiring dismissal of Plaintiffs purported §2255 claim(s) is Plaintiff's failure to sufficiently allege any violation of a requisite predicate act as specifically identified in subsection (a) of the statute quoted above. Relevant to Plaintiffs complaint, 18 U.S.C. 2255(a) creates a civil remedy for "a minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title EFTA01070465 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 10 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 10 of 21 C.M.A. v. Epstein, et al. Page 10 and who suffers personal injury as a result of such violation ... ." See cases cited above herein. Plaintiff has failed to plead any factual allegations whatsoever pertaining to violations of the specified "predicate acts." In paragraph 15, Plaintiff makes reference by citation only to the following federal statutes — 41 8 U.S.C. §§2241, 2242, 2243, 2421, and 2423: See endnote following the Certificate of Service herein for the complete statutory text.' First, Plaintiff's reliance on 18 U.S.C. §2241 in its entirety as a predicate act is improper, it is a violation of subsection §2241(c) that is a designated predicate act. A reading of the text of the other referenced federal statutes shows that no where in Plaintiff's Amended Complaint are there any allegations setting forth the requisite elements of the cited predicate act. Further, any attempted reliance by Plaintiff on other federal or state statutes not specifically identified in 18 U.S.C. §2255 is improper and fails to state a cause of action. See ¶15 of Am. Complaint wherein Plaintiff references by citation additional Florida State statutes and thereafter incorporates such reference into her §2255 claim(s). See Smith v. Husband, 376 F.Supp.2d, and 428 Supp.2d, supra, requiring allegations/evidence to establish predicate act under 18 U.S.C. §2255 in order to be afforded civil remedy. Plaintiff appears to be relying solely on an "agreement with the Federal Government' as a basis for imposing liability under 18 U.S.C. §2255. See ¶¶17, 18, and 19 of ist Am. Complaint. There is nothing in Plaintiffs allegations that would allow for a §2255 claim to go forward without specifying the statutory predicate act and factual allegations pertaining to a violation of the requisite predicate act(s). Accordingly, under EFTA01070466 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 11 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 11 of 21 C.M.A. v. Epstein, et al. Page 11 the standard of pleading as established in Twombly, supra, Plaintiff has failed to sufficiently allege the requisite elements of a §2255 claim, thus requinng dismissal; tor failure to state a cause of action. C. 18 U.S.C. 42255 does not allow for the recovery of punitive damages. Thus, Plaintiff's request for punitive damages under $2255 is required to be dismissed or stricken. In each of the improperly asserted Counts I through XXX, Plaintiff also seeks punitive damages. A plain reading of 18 U.S.C. §2255, quoted above herein, establishes that the statute does not allow for the recovery of punitive damages. Had Congress wanted to allow for such a recovery, It could have easily written such language into the damages provision of the statute. The legislative body chose not to write a punitive damages component into §2255 as it has done in other statutes affording civil remedies. In relevant part, §2255 reads - My minor who is a victim of a violation of section ... of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the a actual damages such minor sustains and the cost of the suit, including reasonable attorney's fee. Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than $50,000 in value? See discussion of rules of statutory construction in part III.A. herein. See subsection (f)(2) of 18 U.S.C. §2252A, entitled Certain activities relating to material constituting or containing child pornography, also contained in Chapter 110, Part I, Crimes, within which specific reference is made to 'compensatory and punitive damages" in setting forth the relief •.. which may be afforded to a plaintiff in bringing a civil action under §2252A(f). EFTA01070467 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 12 of 21 Document 47 Entered on FLSD Docket 03/12/2009 Page 12 of 21 Case 9:08-cv-80811-KAM C.M.A. v. Epstein, et al. Page 12 Accordingly, Plaintiffs claims for punitive damages are required to be dismissed with prejudice or stricken. D. In the alternative, pursuant to constitutional law principles of statutory interpretation, 18 U.S.0 62255 is required to be interpreted as creating a single "civil remedy" or cause of action on behalf of a minor plaintiff against a defendant. The "civil remedy" afforded is not on a "per violation" basis. As set forth above, it is Defendant's position that the text of 18 U.S.C. §2255 does not allow a Plaintiff, such as C.M.A., to pursue the civil remedy and the damages afforded under the statute on a °per violation" basis. See part 111A. above. In the alternative, simply for the sake of argument, if one were to assume that the language of §2255 were vague or ambiguous, under the constitutional based protections of due process, judicial restraint, and the rule of lenity applied in construing a statute, Defendant's position as to the meaning of the statute would prevail over Plaintiffs view. See United States v. Santos, 128 S.Ct. 2020, 2025 (2008). As summarized by the United States Supreme Court in Santos, supra, at 2025: ... The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. See United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917); McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931); United States v. Bass, 404 U.S. 336, 347-349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of Inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress's stead. ... In Santos, the Court was faced with the interpretation of the term "proceeds" in the federal money laundering statute, 18 U.S.C. §1956. "The federal money-laundering EFTA01070468 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 13 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 13 of 21 C.M.A. v. Epstein, et al. Page 13 statute prohibits a number of activities involving criminal 'proceeds." Id, at 2023. Noting that the term "proceeds" was not defined in the statute, the Supreme Court stated the well settled principle that 'when a term is undefined, we give it its ordinary meaning." Id at 2024. Under the ordinary meaning principle, the government's position was that proceeds meant "receipts," while the defendant's position was that proceeds meant °profits." The Supreme Court recognized that under either of the proffered "ordinary meanings," the provisions of the federal money-laundering statute were still coherent, not redundant, and the statute was not rendered "utterly absurd." Under such a situation, citing to a long line of cases and the established rule of lenity, "the tie must go to the defendant." jd, at 2025. See portion of Court's opinion quoted above. "Because the 'profits' definition of 'proceeds' is always more defendant friendly that the 'receipts' definition, the rule of lenity dictates that it should be adopted." Id. Plaintiffs position would subject Defendant EPSTEIN to a punishment that is not clearly prescribed — an unwritten multiplier of the "actual damages" or the presumptive damages. The rule of lenity requires that Defendant's interpretation of the remedy afforded under §2255 be adopted. In addition, under the Due Process Clause's basic principle of fair warning - ... a criminal statute must give fair warning of the conduct that it makes a crime ... . As was said in United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, The constitutional requirement of definiteness is violated by a criminal statute that falls to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed' EFTA01070469 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 14 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 14 of 21 C.M.A. v. Epstein, et al. Page 14 Thus we have struck down a [state] criminal statute under the Due Process Clause where it was not 'sufficiently explicit to inform those who are subject to tt what du on their part will en er n liable to its 'lend b. Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. We have recognized in such cases that 'a statute which either forbids or requires the doing of an act in terms so vague that men of common Intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law,' ibid., and that 'No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888. Thus, applying these well-entrenched constitutional principles of statutory interpretation and application, Plaintiffs 30 separate counts brought under 18 U.S.C. §2255 are required to be dismissed. IV. Count XXXI — "Sexual Battery" Is required to be dismissed for failure to state a cause of action. In the alternative, Plaintiff should be required to more definite►y state whether she is attempting to allege a claim under Florida common or statutory law, or some federal law, and further allege the required elements and factual allegations. In Count XXXI, although entitled "Sexual Battery," Plaintiff improperly realleges and incorporates each and every allegation and each and every count (30) which she previously attempted to allege, resulting in a count that is 204 paragraphs long and Includes reference to Federal and Florida statutory law, while also including language sounding in common law. The count Is such a hodgepodge of legal allegations that Plaintiff fails to state a legally recognizable or viable cause of action. In ¶15, Plaintiff alleges that 'the acts referenced in paragraphs 9 through 14, committed by Defendant against the then minor Plaintiff, C.M.A., were committed in violation of numerous criminal State and Federal statutes ... , including but not limited to, those crimes designated in 18 U.S.C. §§2241, 2242, 2243, 2421, and 2423, criminal EFTA01070470 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 15 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 15 of 21 C.M.A. v. Epstein, et al. Page 15 offenses outlined in Chapter 800 of the Federal Codes, as well as those designated in UlIUd Plaintiff also alleges that Defendants "tortious commission of sexual battery upon C.M.A. were (sic) done willfully and maliciously.° Supporting Defendant's position that Plaintiff has failed to state a cause of action in Count XXXI, 18 U.S.C. §§2241(c), not §2241 in its entirety, as discussed above, is one of the predicate acts, along with 2242, 2243, 2421, and 2423, designated in the federal civil remedy statute — 18 U.S.C. §2255. Plaintiff attempted and failed to allege such a claim in the previous counts. Defendant can find no criminal offenses in any "Chapter 800 of the Federal Codes" which give rise to a civil cause of action. The same is true for Plaintiffs reference to the Florida Statutes. Not one of the statutes referenced creates a private cause of action or affords a civil remedy on behalf of the alleged victim of the criminal offense.' (Except for Florida Statute §39.01, all of the statutes referenced by Plaintiff are contained Title XLVI. Crimes of the Florida Statutes). The referenced criminal statutes set forth acts subject to criminal prosecution and the criminal penalties therefor, if proven. See generally, Am. Home Assurance Co. v. Plaza Materials Corp., 908 So.2d 360, 374 (Fla. 2005)("not every statutory violation carries a civil remedy"); Miami Herald Pub. Co. v. Ferre, 636 F.Supp. 970 (S.D. Fla. 1985)(violation of Florida's criminal extortion statute does not give rise to civil cause of ' Florida Statutes §§796.03 — Procuring person under age 18 for prostitution; 796.04 — Forcing, compelling, or coercing another to become a prostitute; 796.045 (which did not become effective until Oct. 1, 2004) — Sex trafficking; penalties; 796.07 — Prohibiting prostitution, etc.; evidence; penalties; definitions; and §39.01, entitled °Definitions,' is contained in Title V — Judicial Branch, Chapter 39 - "Proceedings relating to Children." EFTA01070471 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 16 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 16 of 21 C.M.A. v. Epstein, et al. Page 16 action for damages); Mantooth v. Richards, 557 So.2d 646 (Fla. 41h DCA 1990), per curiam, (Dismissal of plaintiffs civil complaint affirmed where parental kidnapping statutes concerned only criminal violations and did not create a civil remedy). As well, the Count XXXI allegations make absolutely no reference to any viable common law cause of action; Defendant should not be required to guess or speculate as to the nature of Plaintiffs cause of action. Even if Defendant were to speculate as to the supposed cause of action, these causes of action (common law or otherwise) have not been sufficiently alleged. On Its face, in accordance with the pleading requirements annunciated in Twomblv, supra, Count XXXI is completely lacking as to any common law elements or the underlying factual allegations to support each element, and thus, Count XXXI is required to be dismissed for failure to state a cause of action. In the altematiSre, Plaintiff should be required to more definitely state whether her claim is being brought pursuant to federal or Florida statutory law, specifically identify the statute it is being brought under, or whether her claim is being asserted under common law. Once Plaintiff identifies the nature of her claim, she is required to sufficiently allege in accordance with Twomblv, the requisite elements of the identified claim, along with sufficient factual allegations supporting the elements. Conclusion Pursuant to applicable law, Counts I through XXXI of Plaintiffs First Amended Complaint are required to be dismissed for failure to state a cause of action. 18 U.S.C. does not allow for the Plaintiff C.M.A. to allege separate causes of action against EFTA01070472 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 17 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 17 of 21 C.M.A v. Epstein, et al. Page 17 Defendant EPSTEIN, but rather allows Plaintiff to attempt to assert a single civil remedy it she can prove a violation ot any ot the statutory enumerated predicate acts. Further, Plaintiff has failed to sufficiently allege a requisite predicate act under §2255. In addition, §2255 does not allow for recovery of punitive damages. Count XXXI is also subject to dismissal with prejudice for failure to state a cause of action, as Plaintiff has failed to allege a legally viable or recognizable cause of action. WHEREFORE, Defendant requests that this Court grant his motion to dismiss Counts I through XXXI, or alternative motion for more definite statement, and motion to strike. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of recca identified on the following Service List in the manner specified by CM/ECF on this day of March 2009: Richard Horace Willits, Esq. Jack Alan Goldberger, Esq. Richard H. Willits, P.A. Atterbury Goldberger & Weiss, P.A. 2290 10th Avenue North 250 Australian Avenue South Suite 404 Suite 1400 L 33461 ach, FL 33401-5012 Fax: .11;11:21;1171111 M.A. ants Jeffrey Epstein Jack Scarola, Esq. Jack P. Hill, Esq. Bruce Reinhart, Esq. Searcy Denney Scarola Bamhart & Bruce E. Reinhart, P.A. Shipley, P.A. 250 S. Australian Avenue 2139 Palm Beach Lakes Boulevard Suite 1400 ach, FL 33409 ach, FL 33401 Fax: Fax: EFTA01070473 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 18 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 18 of 21 C.M.A. v. Epstein, et al. Page 18 Jsx(Msearcylaw.com ecf brucereinhartlaw. johesearcvlaw.com Counsel for Defendan Co-Counsel for Plaintiff Respectfully su tted, By: ROBERT D CRITTON, JR., ESQ. Florida Bar o. 224162 rcritabcIcl w.com MICHAEL J. PIKE, ESQ. Florida Bar #617296 moikeAbciclaw.com BURMAN, CRITTON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 FL 33401 Phone Fax (Counsel for Defendant Jeffrey Epstein) I ENDNOTE: U.S.C.A. - Title 18. Crimes and Criminal Procedure, Chapter 109A. Sexual Abuse §2241. Aggravated Sexual Abuse. (c) With children.—Whoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years, or in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or knowingly engages in a sexual act under the circumstances described in subsections (a) and (b) with another person who has attained the age of 12 years but has not EFTA01070474 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 19 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/.2009 Page 19 of 21 C.M.A. v. Epstein, et al. Page 19 attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to ao so, shall be tined under this title and imprisoned tor not less than 30 years or for life. If the defendant has previously been convicted of another Federal offense under this subsection, or of a State offense that would have been an offense under either such provision had the offense occurred in a Federal prison, unless the death penalty is imposed, the defendant shall be sentenced to life in prison. § 2242. Sexual abuse Whoever, in the special maritime and territorial jurisdiction of the United States or In a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly— (1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or (2) engages in a sexual act with another person if that other person is-- (A) incapable of appraising the nature of the conduct; or (B) physically Incapable of declining participation in, or communicating unwillingness to engage in, that sexual act; or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life. § 2243. Sexual abuse of a minor or ward (a) Of a minor.—Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who— (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. (b) Of a ward.—Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who is— EFTA01070475 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 20 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 20 of 21 C.M.A. v. Epstein, et al. Page 20 (1) in official detention; and (Z) under the custodial, supervisory, or disciplinary autnority ot me person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. (c) Defenses.—(1) In a prosecution under subsection (a) of this section, it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the other person had attained the age of 16 years. (2) In a prosecution under this section, it is a defense, which the defendant must establish by a preponderance of the evidence, that the persons engaging in the sexual act were at that time married to each other. (d) State of mind proof requirement—In a prosecution under subsection (a) of this section, the Government need not prove that the defendant knew— (1) the age of the other person engaging in the sexual act; or (2) that the requisite age difference existed between the persons so engaging. Chapter 117 Transportation for Illegal Sexual Activity and Related Crimes § 2421. Transportation generally Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or Imprisoned not more than 10 years, or both. § 2423. Transportation of minors (a) Transportation with intent to engage in criminal sexual activity:-A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life. (b) Travel with intent to engage in illicit sexual conduct—A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. EFTA01070476 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 21 of 21 Document 47 Entered on FLSD Docket 03/12/2009 Page 21 of 21 Case 9:08-cv-80811-KAM C.M.A v. Epstein, et al. Page 21 (c) Engaging In illicit sexual conduct in foreign places.—Any United States citizen or alien admitted tor permanent residence who travels in toretgn commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. (d) Ancillary offenses.—Whoever, for the purpose of commercial advantage or private financial gain, arranges, induces, procures, or facilitates the travel of a person knowing that such a person is traveling in interstate commerce or foreign commerce for the purpose of engaging in illicit sexual conduct shall be fined under this title, imprisoned not more than 30 years, or both. (e) Attempt and consplracy.—Whoever attempts or conspires to violate subsection (a), (b), (c), or (d) shall be punishable in the same manner as a completed violation of that subsection. (f) Definition.—As used in this section, the term Illicit sexual conduct" means (1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age. (g) Defense.—In a prosecution under this section based on illicit sexual conduct as defined in subsection (0(2), it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the person 18 with whom the defendant engaged in the commercial sex act had attained the age of years. EFTA01070477 Case 9:08-cv-80119-KAM .Docy.ment p).7.4..,.. ..Eatqwl on. FLSD Docket 07/20/2009 Page 1 of 4 lase 9:03-cv-B0811-KAM Document 113 Entered on FLSD Docket 06/05/2009 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CARP ton • 08-CV-8OR11-t1N_MARRA/.InHNSON C.M.A., Plaintiff, VS. Ile EPSTEIN and Defendants. PLAINTIFF. C.M.A.'S. CONDITIONAL NOTICE OF INTENT TO EXCLUSIVELY RELY ON STATUTORY DAMAGES PROVIDED BY 18 U.S.C. 42255 Plaintiff, C.M.A., by and through her undersigned counsel, hereby files her Conditional Notice of Intent to Exclusively Rely on Statutory Damages Provided by 18 U.S.C. §2255, and in support thereof states as follows: 1. This Is an action to recover money damages against Defendant, JEFFREY EPSTEIN, for acts of sexual abuse and prostitution committed upon the then- minor, C.M.A. 2. Plaintiff has plead thirty separate counts against EPSTEIN for separate incidences of abuse committed by EPSTEIN against Plaintiff pursuant to 18 U.S.C. §2255. 18 U.S.C. §2255, entitled "Civil remedy for personal injuries", creates a private right of action for minor children who were the victim of certain enumerated sex offenses. 18 U.S.C. §2255 also creates a statutory floor for the amount of damages a EFTA01070478 Case 9:08-cv-80119-KAfVI Document 207-3 Entered on FLSD Docket 07/20/2009 Page 2 of 4 ease 9:08-cv-80811-KAM Document 113 Entered on FLSD Docket 06/05/2009 Page 2 of 4 victim can recover for a violation of same. Plaintiff has also alleged a single count of Sexual Battery against EPSTEIN as well. 3. There presently exists between the Plaintiff and EPSTEIN a disagreement as to whether the statutory damage floor established In 18 U.S.C. §2255 is recoverable for each commission of an enumerated sex offense listed In 18 U.S.C. §2255, or whether the statutory damage floor can only be enforced once, regardless of how many times a defendant perpetrates an enumerated sex offense against a minor victim. 4. This disagreement between the parties is properly the subject of Defendant's Motion to Dismiss First Amended Complaint For Failure to State a Cause of Action, and Motion For More Definite Statement; Motion to Strike, and Supporting Memorandum of Law (D.E. 47) which is currently pending before this Court. 5. In the event that the Court rules that the Plaintiff is entitled to recover the statutory damages created by 18 U.S.C. §2255 for each violationl , Plaintiff will be pursuing only those statutory damages, and will not pursue damages available at common law. 6. Should the Court rule however, that the statutory damage floor can only be applied once, Plaintiff will be pursuing any and all damages available to her, whether they be pursuant to statute or by common law. ease. 18 1 The parties also disagree about the amount the statutory damage floor should be for this §2266 was amended In 2006 to increase the floor from S50,000 to $160,000. The parties U.S.C. essentially disagree about which version of 18 U.S.C. §2265 should apply in this case. EFTA01070479 Case 9:08-cv-80119-KAM Document 207-3 Entered on FLSD Docket 07/20/2009 Page 3 of 4 Case 9:08-cv-80811-KAM Document 113 Entered on FLSD Docket 06/05/2009 Page 3 of 4 Respectfully submitted, is! lank P Hill JACK SCAROLA Florida Bar No. 169440 JACK P. HILL Florida Bar No.: 0547808 Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach. Florda 33409 Phone: Fax: Attorneys for am iff, CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 5th, 2009, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the attached counsel list via transmission of Notices of Electronic Filing generated by CM/ECF. /c/Jack P Hill JACK SCAROLA Florida Bar No. 169440 JACK P. HILL Florida Bar No.: 0547808 Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach. Florida 33409 Phone: Fax: Attorneys for P a nt , EFTA01070480 Case 9:08-cv-80119-KAM Document 207-3 Entered on FLSD Docket 07/20/2009 Page 4 of 4 Document 113 Entered on FLSD Docket 06/05/2009 Page 4 of 4 Case 9:08-cv-60811-KAM ••• COUNSEL LIST Jack A Gokiberger, Esquire Atterbury. Goldberger & Weiss. P.A. 250 Australian Avenue S. West Palm Biliiiiii Phone: Bruce E. Reinhart, Esquire Bruce E. Reinhart, PA 250 South Australian Avenue Suite 1400 West Palm IS Phone: Fax: Robert CrItton, Esquire Burman Critton Luttler & Coleman LIP 515 North Flagler Drive, Suite 400 West Palm B Phone: Fax: Richard H. Willits, Esquire Richard H. Willits, P.A. 2290 10th Avenue North Suite 404 Lake Worth, FES Phone: Fax: EFTA01070481 _Case 9:08-cv-89119-KA!VI_ Document 207A Entered on FLSD Docket 07/20/2009 Page 1 of 46 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009; Page 1 of 18 UNITED STATES DISTRICT COURT ROIITHFRN DISTRICT QF FLORIDA CASE NO.: 08-cIV-80811-1VIARRA/JOHNSON C.M. A., Plaintiff, v. EPSTEIN and Sr Defendants, DEFENDANT EPSTEIN'S MOTION TO COMPEL PLAINTIFF C.M.A. TO RESPOND TO DEFENDANT'S FIRST REQUEST TO PRODUCE AND ANSWER DEFENDANT'S FIRST SET OF INTERROGATORIES, AND TO OVERRULE OBJECTIONS, AND FOR AN AWARD OF DEFENDANT'S REASONABLE EXPENSES Defendant, JEFFREY EPSTEIN, by and through his undersigned attorneys, moves this Court for an order compelling Plaintiff, C.M.A. to respond to Defendant's First Request To Produce and to answer Defendant's First Set of Interrogatories, and to overrule her objections asserted In Plaintiffs Response To Defendant's First Request To Produce, dated February 13, 2009, and in Plaintiffs Notice of Serving Answers To Interrogatories, dated February 18, 2009. Defendant further seeks an award of his reasonable expenses, including expenses, associated with the making of this motion. Rule 37, Fed.R.Civ.P. (2008); Local Gen. Rules 7.1 and 26.1 H (S.D. Fla. 2008). In support of his motion, Defendant states: Prior to the filing of this motion, on April 1, 2009, Defendant's counsel communicated by telephone with Plaintiff's counsel in a good faith effort to resolve the discovery Issues herein. This motion addresses those discovery items which remain at EFTA01070482 Case 9:08-cv:P0119-M.M DoqPIYIVIt 2.67-4 Entered. on_a$1).0. opflt.07/20/200.2. Page_ 2 DfA6 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009' Page 2 of 18 C.M.A. V. Epstein, of al. Page 2 issue. Also, rather than file 2 separate motions to compel, Defendant 'filed one addressing the production requests and Interrogatories because the discovery Issues overlap. PAotIon To Compel Responses to Production Requests Nos. 1, 2, 4, 5, and 19, and Answers to Interrogatories Nos. 2, 18, and 23. Production Request No. 1 1. Individual and/or joint income tax returns and supporting documentation including W-2 and 1099 forms for 2002-2007 and, as well as all records or documentation relative to the Plaintiffs earnings for the current year. Response: Objection. Irrelevant, immaterial and not reasonably calculated to lead to the discovery of admissible Information, Legal Argument Supporting Entitlement to Discovery Plaintiff's tax returns and supporting documentation are relevant to Plaintiffs damages claims and, thus, discoverable. Plaintiffs complaint alleges Iri part that until "beginning in approximately late May or early June of 2002, and continuing approximately August of 2003, the Defendant coerced and enticed the impressionable, acts of vulnerable, and economically deprived then minor Plaintiff to commit various sexual misconduct." 1`t Am. Complaint, ¶13. (Plaintiff also refused to answer Interrogatory no. 2 which sought her employment history for the past ten years asserting the same general objection). Such information Is both relevant and reasonably calculated to lead to the discovery of admissible evidence. It Is well settled that relevant information Is discoverable, even if not admissible at trial, so long as the discovery is reasonably calculated to lead to the discovery of admissible evidence. Rule 26(b)(1), Fed.R.Civ.P.; EFTA01070483 _Cage 9'08=CM.-.8.011.9.-.KAM.......Document.20.7.74....._. Entered on FLSD Dockel_07/2.0/200.9___J?ageadA6_.... Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 3 of 18 C.M.A. v. Epstein, et al. Page 3 242 F.R.D. 685 (S.D. Fla. 2007). Donahav v. Palm Beach Tours & trans., Inc., 26, Fed.R.Civ.P., pursuant to Discoverability of such information Is governed by Rule 686, and cases cited therein. which the scope of discovery is broad. Donahav, supra, at ged, which is relevant to "Parties may obtain discovery regarding any matter, not privile ng action." Id. the claims or defense of any party involved in the pendi rting documentation, for the Plaintiffs tax returns, along with the requested suppo t earnings, are relevant to six year period, and documents relevant to her curren . Such information would show Plaintiffs damages claims detailed below herein as provide evidence as to how Plaintiffs employment and earning history, as well life before, during and after the alleged Plaintiff has been able to function in her daily to get out of bed each morning and incidents. Was she self-sufficient? Was she able One's ability to earn a living and be support herself? What type of Job did she hold? financial component, but also an self-supporting has not only a emotionalipsychologicaUmental component. allege 32 counts. Counts I C.M.A.'s First Amended Complaint.' attempts to to 18 U.S.C. §2255 - Civil Remedies for through >0O( are purportedly brought pursuant Battery," and Count XXXII. is entitled Personal Injuries; Count XXXI is entitled "Sexual against Defendant, Kellen." "Conspiracy to Commit Tedious Assault only 10, which seek Information about In her answers to interrogatory nos. 9 and C.M.A.'s damages claims, Plaintiff answered that: Amended Complaint Is pending. Defendant's Motion To Dismiss directed to Plaintiff's First EFTA01070484 Case 9:05-cv-80119-KAM Document 207-4 Entered on F LSD Docket 97/20/2009 Page 4 of 46 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 4 of 18 C.M.A. v. Epstein, et al. Page 4 . I began I have bi-polar disorder and manic depression. I lost my self-esteemPermanent drug proble ms. cutting myself on my arms and legs and developed injuries are psychological. (Interrog. No. 9). psychic trauma, I am claiming compensation for mental anguish, mental pain, by a jury who and loss of enjoyment of life. These dama ges will be evalua ted of at least the will provide their own methods of computation In an amount No. 10). statutory minimum established by 18 U.S.C.A. §2255. (Interrog. s, ff alleges: In her 181 Amended Complaint, relevant to her damages claim Plainti , physical injury, C.MA., has in the past suffered, and will in the future suffer al traum a, mental anguish, pain and suffering, emotional distress, psychologic , invasion of her humiliation, embarrassment, loss of self-esteem , loss of dignity then minor Plainti ff incurr ed medical and privacy and other damages ... . The onal medical and psychological expenses ... and will in the future suffer additi loss of income, a psychological expenses. The Plaintiff C.M.A. has suffered capacity td enjoy loss of loss of the capacity to earn income in the future, and a Plaintiff, C.M.A., will life. These Injuries are perma nent In nature and the continue to suffer these losses in the future. §2255), lill25, 43, 49, 55, (1st Am. Complaint, Counts I — )00( (18 133, 139, 145, 151, 167, 61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, y), ¶199.) 163, 169, 175, 181, 187, 193; Count )000 (Sexu al Batter "compensatory damages of at In each of her 'Wherefore" clauses, Plaintiff seeks , pursuant to which Plaintiff least the minimum provided by law.° 18 U.S.C. §2255 ry of °actual damages." See fn. attempts to bring certain of her claims, allows for recove 2 herein for applicable statutory text.2 documentation, will provide As discussed above, the tax returns, and supporting Information does not only go to direct evidence as to Plaintiffs claimed damages. Such of section 2241(c), 2242, 2243, 2251, 2 Any minor who is a victim of a violation this (a) 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of title and who suffers personal injury as a result of such violation may sue In any approp riate United States District Court and shall recover the actual damages such minor sustai ns and the cost of the suit, including a reasonable attorneys fee. Any minor as described In the preceding sentence shall be deemed to have sustained damages of no less than $50,00 0 in value. (Emphasis added.] EFTA01070485 Case 9.:0p7oy-80119-KAM Document 207-4 Entered on FLSD Docket 07/20/2009 Page.5 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 5 of 18 C.M.A. v. Epstein, et al. Page 5 ity to earn income type compensatory or actual damages or loss of Income/toss of capac type damages. In the damages, but also her emotIonaUpsychological/mental health parties, Plaintiffs counsel telephone communication between counsel for the respective ing capacity type damages; indicated that Plaintiff was not seeking loss of Income/earn l withdrawal of such; damages (Defendant is not aware that there has been any forma Is still relevant and discoverable claimed); notwithstanding, the Information sought iff. The time period will allow based on the additional damages claimed by Plaint life prior to, during, and after the Defendant to compare how Plaintiff was doing In her been able to hold and her earnings alleged incident. Again, the type of jobs Plaintiff has only a financial component, but an and ability to support herself clearly have not as well. Accordingly,' Plaintiffs emotional/psychological/mental health component Defendant is entitled to the documents objection is required to be overruled, and requested. Production Request No. 2 chiropractor, psychologists, 2. All bills/expenses from any medical doctor, any members of the healing arts and psychiatrists, mental health counselors (Including claim you incurred as a result of the related fields, i.e. drugs, prescriptions, etc.) you this lawsuit Injuries which are or may be the subject matter of Response: upon receipt. Discovery Is ongoing. None In our possession. These will be provided very Legal Argument Supporting Entitlement to Disco requested, but has failed to Plaintiff makes no objection to the documents st. Clearly, the documents are relevant produce any documents responsive to this reque claimed injuries. In the April 1, 2009, and discoverable as they go to proof of Plaintiff's EFTA01070486 _Case 9:08:sy-80119-1KAM Document 207-4 Entered on FLSD Docket 07/20/2009 Eage_Q...e.f 46 . Case 9:08-cv-50811-KAM Document 54 Entered on FLSD Docket 04/02/2009, Page 6 of 18 C.M.A. v. Epstein, et al. Pape 6 telephone communication Plaintiffs counsel indicated that Plaintiff was still not in possession of such documents. The First Request for Production was served on Plaintiff on January 16, 2009. In her answer to Interrogatory no. 11, (Notice of Serving Answers, dated February 18, 2009, identifies a psychiatrist and a counselor/therapist from whom she claims she Is receiving "treatment or examination for the injuries for which [she] seeks damages." See Exhibit A hereto for copy C.M.A.'s answer to interrogatory no. 11. Regarding the date of treatment from the psychiatrist - she asserts "I would defer to the Doctor's records." She claims the treatment from the counselor/therapist has been "since high school' and "ongoing." Defendant is entitled to the documents sought and Plaintiff is in control of and has the ability to obtain the requested medical bills and expenses she claims were incurred as result of her Injuries claimed in this action. Plaintiff should be required to immediately produce the requested documents to Defendant. Production Request No. 4 4. All reports, evaluations, recommendations and/or analysis submitted by any expert which relate to or cover the Incident which Is the subject matter of this lawsuit and/or any injuries, damages or losses you allege were caused by the incident. Response: Any reports generated by any retained experts not yet disclosed are protected by the work product privilege. Notwithstanding same, none. Legal Argument Supporting Entitlement to Discovery Plaintiff, through counsel, in the April 1, 2009, telephone communication, Indicated that she does not have any responsive documents and stands by her objection. Rule 26 provides In relevant part — EFTA01070487 Case 9:08-cv-80119-KAM Document 207-4 Entered on FLSD Docket 07/20/2009 Pne 7 of 4Q Case 9:08-cv-80811-MM Document 54 Entered on FLSD Docket 04/02/200g Page 7 of 16 C.MA. v. Epstein, et al. Page 7 2) Disclosure ofExpert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the Identity of any witness It may use at Marto present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Written Report. Unless otherwise stipulated or ordered by the', court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly Involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (II) the data or other information considered by the witness in forming them; (ill) any exhibits that will be used to summarize or support them; : (iv) the witness's qualifications, Including a list of all publications authored in the previous 10 years; (v) a list of all other cases In which, during the previous four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony In the case. (C) Time to Disclose Expert Testimony. A party must make these discloiures at the times and In the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made: (I) at least 90 days before the date set for trial or for the case to be ready for trial; or (II) if the evidence Is Intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2XB), within 30 days after the other party's disclosure. i ♦ ♦ (a) Supplementing Disclosures and Responses. (1) in General. A party who has made a disclosure under Rule 2S(a)-7or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that In some material respect the disclosure or response is incomplete or incorrect, and If the additional or corrective EFTA01070488 __Sosa_1(2.t-cy.-EY11.1.97KNO. . Document 20774 _ Entered on ELSE) D.c&Icet 07/20 120.09 P.agelint.40 Document 54 Entered on FLSD Docket 04/02/2009. Page 8 of 18 Case 9:08-cv-80811-KAM C.M.A, v. Epstein, et at. Page 8 parties ,during the Information has not otherwise been made known to the other y pioufss vi in WIitiny, v (B) as ordered by the court. ed -under Rule (2) Expert Witness. For an expert whose report must be disclos ation lhcluded In 26(a)(2)(B), the party's duty to supple ment extend s both to inform depos ition. Any additions or the report and to information given during the expert's the party's pretrial 'disdosures changes to this Information must be disclosed by the time under Rule 26(a)(3) are due. in possession of any Accordingly, Defendant requests that should Plaintiff be analysis prepared by an expert such reports, evaluations, recommendations and/or by an expert expected to testify at expected to testify at trial or deposition, or to be used ced as required by Rule 26, trial or deposition, that such documents be produ Fed.R.Civ.P. quoted above. Production Request No. 5 ians, (including 5. All medical reports and/or records from doctors, physic or alcohol , hospitals, drug psychologists, psychiatrists, mental health counselors) or entity who has rende red treatment to or examined you facilities or any other person t matter of this lawsuit. for any reason after the incident(s) which Is the subjec Response: None in our possession. Discovery is ongoing. Legal Argument Supporting Entitlement to Discovery produce the requested Once again, Plaintiff should be required to immediately Defen dant rea)leges and documents. In support of ordering Immediate production, To Discovery" to request no. 5 incorporates his "Legal Argument Supporting Entitlement above herein. EFTA01070489 Case 9:08-cv-80119-KAM Document 207-4 Entered op FL$D Docket 0720/2009 Page 9 of 46 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2004 Page 9 of 18 C.M.A. v. Epstein, of al. Page 9 Interrogatory No. 2 phone numbers, 2. List the names, business addresses, telephone and cell address) and rates of pay dates of employment, immediate supervisor (name and whom you have worked in the regarding all employers, including self-employment, for have received. Answer this past 10 years; this Includes listing all sources of income you question by year, i.e. 1998 — 2009. Answer: ated to lead to discovery of Objection. Irrelevant, Immaterial and not reasonably calcul admissible evidence. Argument Supporting Entitlement to Discovery and injuries claimed by Such Information Is clearly relevant to the damages in Plaintiff in this action. Plaintiff's complaint alleges In part that "beginning continuing until approximately approximately late May or early June of 2002, and d the impressionable, vulnerable, and August of 2003, the Defendant coerced and entice various acts of sexual misconduct." economically deprived then minor Plaintiff to commit ction Request no. 1 above herein). 1° Am. Complaint, ¶13. (See discussion of Produ calculated to lead to the Such Information Is both relevant and reasonably discovery of admissible evidence. It is well settled that relevant Information is as the discovery Is reasonably discoverable, even If not admissible at trial, so long ce. Rule 26(b)(1), Fed.R.Civ.P.; calculated to lead to the discovery of admissible eviden 242 F.R.D. 665 (S.D. Fla. 2007). Donahav v. Palm Beach Tours & trans., Inc. Rule 26, Fed.R.Civ.P., pursuant to DIscoverabillty of such information is governed by supra, at 686, and cases cited therein. which the scope of discovery is broad. Donahay, not privileged, which Is relevant to "Parties may obtain discovery regarding any matter, ng action." Id. the claims or defense of any party involved in the pendi EFTA01070490 Case 9:08-cv-80119-KAM Document 207-4 Entered on FL§D Dock.et 07/?0/2009 JO ofa. Document 54 Entered on FLSD Docket 04/02/2009 Page 10 of 18 Case 9:08-cv-80811-KAM C.M.A. v. Epstein, et el. Page 10 and after the alleged Plaintiffs employment and earnings history prior to s. Such Information would not Incidents are relevant to her claimed damages and Injurie but also provide eirldence as only evidence Plaintiffs employment and earning history, life before, during and after the to how Plaintiff has been able to function In her daily able to get out of: bed each alleged incidents. Was she self-sufficient? Was she hold? One's ability to earn a morning and support herself? What type of Job did she financial component, but also an living and be self-supporting has not only a emotional/psychological/mental component. 32 counts) Counts I C.M.A.'s First Amended Complaint attempts to allege U.S.C . §2255 — Civil Remedies for through XXX are purportedly brought pursuant to 18 y," and Count XXXII is entitled Personal Injuries; Count XXXI is entitled "Sexual Batter Defendant, "Conspiracy to Commit Tortlous Assault only against which seek information about In her answers to Interrogatory nos. 9 and 10, C.M.A.'s damages claims, Plaintiff answered that: I lost my self-esteem. l began I have bi-polar disorder and manic depression. develo ped drug problems. Permanent cutting myself on my arms and legs and Injuries are psychological. (Interrog. No. 9). mental pain, psychic trauma, I am claiming compensation for mental anguish, be evaluated by a jury who and loss of enjoyment of life. These damages will in an amount of at least the will provide their own methods of computation . (Interrog. No. 10). statutory minimum established by 18 U.S.C.A. §2255 ges claims, Plaintiff alleges: In her 1si Amended Complaint, relevant to her dama suffer, physical injury, C.M.A., has In the past suffered, and will In the future psych ologic al traum a, mental anguish, pain and suffering, emotional distress, dignity, invasion of her humiliation, embarrassment, loss of self-esteem, loss of Incurred medical and privacy and other damages ... . The then minor Plaintiff additional medical and psychological expenses ... and will in the future suffer ed loss of income, a psychological expenses. The Plaintiff C.M.A. has suffer EFTA01070491 Case 9:08-cv-80119-KAM Document 207-4 Entered on FLSD Docket 07/20/2009 Page 112f 46 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 11 of 18 C.MA. v, Epstein, et al. Page 11 capacity to, enjoy loss of the capacity to earn income In the future, and a loss of iff; C.M.A., will plaint life. These Injuries are permanent In nature and the continue to suffer these losses in the future. 31, 37, 43, 49, 55, (15t Am. Complaint, Counts I - XXX (18 U.S.C. §2255),11¶25, 121, 127, 133, 139, 145, 151, 157, 61, 67, 73, 79, 85, 91, 97, 103, 109, 115, XXXI (Sexu al Batter y), ¶199. ) 163, 169, 175, 181, 187, 193; Count ensatory damages of at In each of her 'Wherefore" clauses, Plaintiff seeks "comp §2255, pursuant to which Plaintiff least the minimum provided by law." 18 U.S.C. ry of "actual damages." See fn. attempts to bring certain of her claims, allows for recove 2 herein for applicable statutory text. gs history will provide direct As discussed above, C.M.A.'s employment and earnin information does not bnly go to evidence as to Plaintiffs claimed damages. Such of capacity to earn income type compensatory or actual damages or loss of income/loss ental health type damages. In the damages, but also her emotional/psychological/m ctive parties, Plaintiff's counsel telephone communication between counsel for the respe e/earning capacity type. damages; Indicated that Plaintiff was not seeking loss of incom l withdrawal of such damages (Defendant Is not aware that there has been any forma Is still relevant and discoverable claimed); notwithstanding, the Information sought Plaintiff. The time period will allow based on the additional damages claimed by her life prior to, during, and after the Defendant to compare how Plaintiff was doing In been able to hold and her earnings alleged Incident. Again, the type of jobs Plaintiff has a financial component, but an and ability to support herself clearly have not only Accordingly, Plaintiffs emotional/psychological/mental health component as well. EFTA01070492 Case 9:08-cv-80119-KAM Document 207 4 Entered, on FLSD Docket 07/2(2/2009 Page 12 of.48 Document 54 Entered on FLSD Docket 04/02/2009 Page 12 of 18 Case 9:08-cv-80811-KAM C.M.A. v. Epstein, et al. Page 12 d to the Information sought objection is required to be overruled, and Defendant is entitle in the Interrogatory. Interrogatory No. 18 numbers of all:males, 18. List separately the names, addresses and phone have had sexua l activit y since ago 10 (by year) excluding Mr. Epstein, with whom you sexual activity, the date(e) and up through your current age. Describe the nature of the person. whether you received money or other consideration from Answer: Objection. Relevance and overbroad. Legal Argument Supporting Entitlement to Discovery without any facOal support Plaintiffs only objection is relevancy and overbroad, Gen. Rule 26.1 H (S.D. Fla. 2008). or showing as required by Rule 26(c) and Local is overbroad. Nowhere does C.M.A. explain how such interrogatory erable, even if not admissible at It is well settled that relevant information Is discov calculated to lead to the discovery of trial, so long as the discovery Is reasonably .; Donahay v. Palm Beach Tours & admissible evidence. Rule 26(b)(1), Fed.R.Civ.P Discoverability of an alleged trans., Inc., 242 F.R.D. 685 (S.D. Fla. 2007). cases is governed by Rule 26, victim's/plaintiffs sexual conduct or activity in civil ery is broad. DonahaV, supra, at Fed.R.Civ.P., pursuant to which the scope of discov discovery regarding any matter, not 686, and cases cited therein. "Parties may obtain defense of any patty Involved in the privileged, which is relevant to the claims or pending action." 14. regarding Plaintiffs sexual In accordance with Rule 26, the discovery sought ing whether she received any activity with males and the nature thereof, includ EFTA01070493 Case 9:08-cv-80119-KAM Document 2074 Entered on FLSD Docket 07/20/2009 Page 13 ofAt Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 13 of 18 C.M.A. v. Epstein, et al. Page 13 18, are all relevant to compensation or consideration therefore, in interrogatory no. claims she has suffered. Plaintiffs damages claims and the type of injury she ation and obtaining such Defendant has no other means of obtaining such inform ty until the Court can information through Plaintiff will better protect the confidentiali under Rule 412(c) whether make a determination in accordance with the procedures ), Fed.R.Civ.P. Defendant such information will be admissible at trial. See Rule 412(c the information obtained through will agree to an order keeping the confidentiality of discovery. theories of this action. The evidence sought is relevant based on the facts and counts. Counts I through XXX C.M.A.'s First Amended Complaint attempts to allege 32 — Civil Remedies for Personal are purportedly brought pursuant to 18 U.S.C. §2255 nd Count XXXII Is entitled Injuries;- Count -XXXI• is entitled "Sexual Battery,La Defendant, 'Conspiracy to Commit Tortlous Assault only against which seek information about In her answers to Interrogatory nos. 9 and 10, C.M.A.'s damages claims, Plaintiff answered that: my self-esteem. I began I have bipolar disorder and manic depression. I lost problems. Permanent cutting myself on my arms and legs and developed drug injuries are psychological. (Interrog. No. 9). l pain, psychic trauma, I am claiming compensation for mental anguish, menta ted by a jury who ges will be evalua and loss of enjoyment of life. These dama amou nt of at least the utatio n In an will provide their own methods of comp og. No. 10). U.S.C .A. §2255 . (lnterr statutory minimum established by 18 claims, Plaintiff alleges: In her 1°1 Amended Complaint, relevant to her damages suffer, physical injury, C.M.A., has in the past suffered, and will In the future al traum a, mental anguish, pain and suffering, emotional distress, psychologic , Invasion of her , loss of dignity humiliation, embarrassment, loss of self-esteem EFTA01070494 9:0atev-X1119-KAM Document 207-4 Entered on FLSD Docket 07/20/2009 . Page 14 of 46 Document 54 Entered on FLSD Docket 04/02/2009 Page 14 of 18 Case 9:08-cv-80811-KAM C.M,A. v. Epstein, et al. Page 14 Incurred medithl and privacy and other damages ... . The then minor Plaintiff fur ditiotraHfiedleal-and psychological expenses ... dud will in the futuiu btf loss of Income, a has suffer ed psychological expenses. The Plaintiff C.M.R. of capacity to enjoy , and a loss loss of the capacity to earn income In the future iff, C.M.A., will nature and the Plaint life. Those Injuries are permanent in continue to suffer these losses in the future. 111125, 31, 37, 43, 49, 55, (10t Am. Complaint, Counts I — XXX (18 U.S.C. §2255), 133, 139, 145, 151, 157, 61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, y), ¶199.) 163, 169, 175, 181, 187, 193; Count XXXI (Sexual Batter "compensatory damages of at In each of her "Wherefore" clauses, Plaintiff seeks §2256, pursuant to which Plaintiff least the minimum provided by law." 18 U.S.C. recovery of "actual damages." See fn. attempts to bring certain of her claims, allows for 2 herein for applicable statutory text. "sexual assault. and child C.MA. also alleges that Defendant's conduct was ning in approximately late May or abuse of a then minor." ¶2. She alleges that "begin ly August of 2003, the.Defendant early June of 2002, and continuing until approximate able, and economically deprived then coerced and enticed the impressionable, vulner nduct." ¶13. minor Plaintiff to commit various acts of sexual misco g and inappropriate and ... These acts Included, but were not limited to, fondlinsexual misconduCt and Illegal sexual touching of the then minor Plaintiff, the then minor Plaintiff, masturbation of the Defendant in the presence of e In sexual acts with to engag soliciting and enticing the then minor Plaintiff raging the then. minor encou another female in EPSTEIN's presence, and comm itted numerous ; Defen dant Plaintiff to become involved In prostitution iff includ ing, but not then minor Plaint criminal sexual offenses against the procurement of a minor for limited to, sexual battery, solicitation or prostitution, assaults upon the person of the purpose of prostitution, and lewd and lascivious the then minor plaintiff. (15t Am. Complaint ¶13). s and damages claimed by The Information sought Is clearly relevant to the injurie ges are such that Defendant is Plaintiff. The nature of her claimed Injuries and dama EFTA01070495 Case 9:08-cv-80119-KAM Document 207-4 Entered on FLSP pgcket 07/20/2009 Elge_15 of 46 Document 54 Entered on FLSD Docket 04/02/2009 Page 15 of 18 Case 9:08-ov-80811-KAM C.M.A. v. Epstein, et al. Page 15 of her relationship with males, entitled to evidence which would show the nature of sexual misconduct or activity as whether she has suffered or engaged in other acts ed injury and damages as a result of alleged in her complaint, and whether she suffer See United States v. Bear Stops, 997 the other claimed sexual misconduct or activity. sexual abuse of six year old boy was F.2d 451 (8th Cir. 1993)(Defendant charged with sexua l assault by 3 older boys to entitled to admission of evidence relating to victim's ted behavioral manifestations of establish alternative explanation for why victim exhibi sexually abused child.). of Bales v. Ruzzo, 703 So.2d In further support of Defendant's motion, a copy 286 (Fla. 1998), is attached hereto as 1076 (Fla. 6th DCA 1997), rev. denied, 719 So.2d in this action, and the relevancy and Exhibit B as it is on point to the discovery issues activity and any payment, therefore. See discoverability of Plaintiff's history of sexual Balas case and footnote 1 herein. 3 interrogatories 8, 22 and 30 propounded In the court civil actions againstiDefendant Additionally and significantly, In other pending state damages, the Circuit Court Judges EPSTEIN attempting to assert similar claims and erable as it Is relevant to the damages have already ruled that such Information is discov C and D hereto. Composite. Exhibit C claims of Plaintiff. See Composite Exhibits d In the case of A.C. v. Epstein, and are the Orders, dated February 23, 2009, entere al Circuit, in and For Palm Beach , Case No. 502008CA025129 MB AI, 15th Judici dant's motion to compel therein directed County, State of Florida, which granted Defen multicount complaint Including claims for 3 In Batas v. Ruzzo supra, the Plaintiffs alleged a Stat.; for battery for the unwanted and Ma. "coercion of prostitution" pursuant to §795.09, imprisonment for physically confining the offensive touching of petitioners' bodies; false onal infliction of emotional distress. petitioners against their will; invasion of privacy; and intenti EFTA01070496 Case 9:08-cv-80119-KAM Document 207-4 Entered on F.L.S.Q.DOCRet 0.71.20/2009.__Page..1.6_a_46 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 ; Page 16 of 18 v, Epstein, et al. Page 16 . (In the A.C. case, the Plaintiff to discovery identical to interrogatory no. 18 above nos. 19, 20, and 21 herein.) answered without objection interrogatories identical to a March 3, 2009 hearing on Composite Exhibit D is a portion the transcript from of Jane Doe II v. Epstein, and Defendant's motion to compel discovery in the case t Court, In and For Palm Case No. 502008CA020614 MB AF, loth Judicial Circui t Court Judge determined that the Beach County, State of Florida. Again, the Circui and, thus, discoverable. Information sought is relevant to the Issue of damages overruled and Defendant is Accordingly, Plaintiffs objections are required to be entitled to the discovery sought. Interrogatory No. 23 phone numbers and dates of all 23. State the names, addresses, ages, to Mr. Epstein's home to give him a females whom you claim were brought by you e, state the amount of money you massage or for any other reason. As to each femal claim you were paid to bring each female. Answer: A.L. Age: 22 West Palm Beach, FL I was paid $100.00 Legal Argument Supporting Entitlement to Discovery interrogatory in an effort to Counsel for the respective parties also discussed this to the discovery requested. Plaintiffs come to a resolution. Plaintiff does not object the identity of A.L. to the extent counsel indicated that he had a "problem" disclosing agree to an order proteCting public she was a minor at the time. Defendant would d a minor at the time; hiowever, as disclosure of the true identity of A.L. If she were indee to provide Defendant with the full part of the order, Plaintiff should also be required EFTA01070497 Case 9:O-cv-iiic):119-KAM Document 207-4 Entered on FLSD Docket 07/20/2009 Page:17 of g,0 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 17 of 18 C.M.A. v. Epstein, et al. Page 17 discovery. It is Plaintiff who name of A.L. so that Defendant may conduct meaningful the alleged "scheme." In addition, claims she brought A.L. to Epstein's home as part of she brought A.L. to Epstein's Plaintiff failed to provide any date or dates as to when pt to provid e this information. home. Plaintiffs counsel indicated they would attem el discovery, with respect t Accordingly, In granting Defendant's motion to comp e the full name of A.L. (which this interrogatory, Plaintiff should be required to provid date or dates which she brought Defendant agrees to keep confidential at this time), the she was allegedly paid each time. A.L. or any female to Epstein's home, and how much grant Defendants motion to WHEREFORE, Defendant requests that this Court expenses, including attorney's fees, compel and award Defendants reasonable associated with this motion. Rule 7.1 Certification parties communicated by I hereby certify that counsel for the respective ery issues prior to the filing of this telephone in a good faith effort to resolve the discov process of being motion to compel. Some of the issues were resolved or in the resolved. Robert D. Critfbn, Jr. Attorney for defendant Epstein Certificate of Service ing was electronically filed with I HEREBY CERTIFY that a true copy of the forego foregoing document Is being that the the Clerk of the Court using CM/ECF. I also certify served this day on all couns el of re Cigen tifled on the following Service List in the manner specified by CM/ECF on this 'Way of April, 2009 EFTA01070498 Cse.9:0P-SY:§0119-KAM Document 207-A _Entered on FLSD D9PRet 07/29/21/Q9__P.age_18 91_48 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 . Page 18 of 18 • C.M.A. v. Epstein, et at Page 18 Richard Horace Willits, Esq. Jack Alan Goldberger, Esq. icnarc . 2290 1 Avenue North 250 Australian Avenue South Suite 404 Suite 1400 L 33461 ach, FL 33401-5012 Fax: Fax: Counse o ff C.M.A. jaaescebellsouth.net reelrhwOhotmailcom Counsel for Defendant Jeffrey Epstein Jack Scarola, Esq. Jack P. Hill, Esq. Bruce Reinhart, Esq. Seamy Denney Scaro la Barnh art & Bruce E. Reinhart, PA Shipley, P.A. • 250 S. Australian Avenue 2139 Palm Beach Lakes Boulevard Suite 1400 ach, FL 33409 ach, FL 33401 Fax: Fax: ecf(khbrucerelnhartlaw. jsxOsearcvlaw.com lohCasearcvlaw.com Counsel for Defendan Co-Counsel for Plaintiff Respectfully subm , By: ROBERT D. ITTON, JR., ESQ. Florida Bar 224182 beide •m MICHAEL J. PIKE, ESQ. Florida Bar #617298 moikeabolciaw.com BURMAN, CRITTON, LUTTIER & COLEMAN 515 N. Fiagler Drive, Suite 400 h, FL 33401 Phone Fax Counse or • efendant Jeffrey Epstein) EFTA01070499 Case 9.98-cv-801197iCAM _.MN................ant9N0 on .FL.S4 Pgoket 0.7/2.0/20.Q9__Pagei9_af.46 Case 9:08-cv-80811-KAM Document 54-2 Entered on FLSD Docket 04/02/2009 Page 1 of 2 • C.M.N. vs. Epstein, et al. NSON Case No.r. 08-CV-8081 I-QV-MARRA/JOH Interrogatories Plaintiff's Answers to Defe ndan t's Pint counseling prior to time School behavioral problems, received • or take any drug s or med icati ons 8. Did you consume any alcoholic beverages dents) described In the complaint? If h inci within 12 hours before the time of eac h beverages, drugs, or medication whic so, state the type and amount of alcoholic re you consumed them. whe were consumed, and when (dates) and ANSWER ts". I rning Glory" and "Angel Truthpe 1. On one occasion I had taken "Mo do not recall the date. powder. I do not recall the,date. 2. On another occasion I used cocaine al, mental) for which you are claiming Describe each injury (physical, emotion 9. of your body that was Injured/ the damages in this case, specifying the part you contend are permanent, the effects nature of the Injury and as to any Injuries on you that you claim are permanent. ANSWER .I ic depression. I lost my self-esteem lems. I have bipolar disorder and man legs and developed drug prob began cutting myself on my arms and Permanent injuries are psychologi cal. you claim, and Include In your answer the 10. Please state each Item of damage that tes; the factual basis for each item of rela count to which the Item of damages s, ana tion of how you computed each item of damage damages; and an expl d. Including any mathematical formula use ANSWER mental anguish, mental pain, psychic I am claiming compensation for These damages will be evaluated by trauma, and loss of enjoyment of fife. hods of computation in an amount of a jury who will provide their own met hed by 18 U.S.C.A. § 2255: at least the statutory minimum establis Discovery is ongoing. of each physician (Including psychiatrist, Ust the names and business addresses 11. ider) who has treated or examined you, psychologist, chiropractor or medical prov 13 A ti EXHIBIT '17 EFTA01070500

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