Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Page2 U.S.C are barred by the applicable statute of limitations Plaintiff and Defendant are in agreement that a Rule dismissal on statute of limitations grounds is appropriate where it is apparent from the face of the complaint that the claim is time-barred See generally La Grasta First Union Securities Inc F.3d th Cir However contrary to Plaintiffs assertion in section I of her memorandum based on the allegations of the Complaint Plaintiffs claims alleged in Count I and Ill are time barred Plaintiff now attempts to rely on the discovery rule in an effort to argue that the cause of action accrued at some later date however and significantly there are no allegations in Count I that implicate application of the discovery rule which is codified in Florida Statute Hearndon Graham So.2d Fla Hearndon dealt with the accrual of a cause of action where a plaintiff alleges that she suffered from traumatic amnesia caused by childhood sexual abuse The Florida Supreme Court answered the following question in the affirmative Where a plaintiff in a tort action based on childhood sexual abuse alleges that she suffered from traumatic amnesia caused by the abuse does the delayed discovery doctrine postpone accrual of the cause of action The Hearndon plaintiff filed her complaint in against her stepfather for injuries from alleged sexual abuse committed upon her beginning in when she was and continuing until when she turned She further alleged that she suffered from traumatic amnesia or a related syndrome until approximately caused by the abuses allegedly perpetrated by the defendant thereby explaining why earlier commencement of the action had not been possible Id at The plaintiff Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Page3 claimed the sexual abuse caused her to suppress or lose her memory for several years The Supreme Court noted that in reaching its decision allowing the accrual of the action to be delayed it was not passing on the merits of whether she actually lost and then retrieved her memory or on the reliability of any of the psychological techniques used to bring back the memories of the abuse As noted in Hearndon the Florida Legislature codified the discovery rule in intentional abuse cases when it enacted Fla.Statutes was found not to apply in Hearndon because the alleged sexual abuse occurred from to and the abuse was not recalled until The plaintiff filed her complaint in The statute became effective in See endnote herein Davis Monhanan So.2d Fla The Florida Legislature has imposed a delayed discovery rule in cases of professional malpractice medical malpractice and intentional torts based on abuse there is no other statutory basis for application of the delayed discovery rule to delay the accrual of a cause of action The discussion in Hearndon remains relevant as it explains how and when the statutory discovery rule applies and its effect on the accrual of a cause of action The Hearndon decision should be read in conjunction with Davis Monahan So.2d Fla In Davis the Florida Supreme Court made clear that the statutory codification of the delayed discovery rule only applies to those causes of actions enumerated in Fla.Stat and refused to extend the ruling in Hearndon to causes of action not based on the statutory enumerated exceptions or to causes of actions not based on allegations of childhood sexual abuse where a plaintiff has Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Page4 traumatic amnesia or a repressed memory type condition In refusing to broaden the ruling in Hearndon and apply the delayed discovery doctrine to claims for breach of fiduciary duty conversion civil conspiracy and unjust enrichment the Florida Supreme Court Davis supra at stated While we applied the delayed discovery doctrine to causes of action arising out of childhood sexual abuse and repressed memory in Hearndon we did so only after considering the unique and sinister nature of childhood sexual abuse as well as the fact that the doctrine is applicable to similar cases where the tortious acts cause the delay in discovery We also considered the Legislatures endorsement in amending section Florida Statutes to include intentional torts based on abuse and the fact that the application of the doctrine among the states is both the majority rule and modern trend In this case there is no modern trend or statutory endorsement and Monahan did not allege fraud so there was no specific allegation that Davis or Kishs actions caused Monahans delayed discovery Plaintiff is correct that part of the analysis as to whether a particular claim is time barred involves an analysis as to when a particular cause of action has accrued Under Florida law a statute of limitations runs from the time the cause of action accrues which in turn is generally determined by the date when the last element constituting the cause of action occurs Fla Stat See generally State Farm Mut Auto Ins Co Lee So.2d A cause of action cannot be said to have accrued within the meaning of the statute of limitations until an action may be brought and Florida Power Light Co Allis Chalmers Corp F.3d Fla.Stat provides in relevant part the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues A cause of action accrues when the last element constituting the cause of action occurs Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Page5 rehearing denied th Cir Cause of action accrues for limitations purposes when last element constituting cause of action occurs and plaintiff knew or should have discovered injury Further and significantly the fact that a plaintiff does not know the full extent of his or her injury and that the most substantial damages do not occur until later date does not postpone running of limitations periods Id See also Penthouse North Assn Inc Lombardi So.2d Fla A statute of limitation does not commence to run until the cause of action accrues A cause of action does not accrue until someone has been damaged by the acts complained of As alleged in the Complaint JANE DOE NO had one encounter with Epstein at his Palm Beach mansion in or about when she was then approximately years old fell into Epsteins trap and became one of his victims Comp She further alleges that at the time of the one encounter she was frightened and felt trapped and as a result of this encounter with Epstein she experienced confusion shame humiliation and embarrassment and has suffered severe psychological and emotional injuries Comp On the face of the Complaint Plaintiff was aware that she was damaged at the time of the encounter complained Because Plaintiff was allegedly a minor at the time under Florida law Plaintiff could not have brought the action in her own right Both Plaintiff and Defendant are in agreement that the legal disability based on one being a minor is generally removed once a person turns years of age JDS memorandum fn Based on the allegations it has been at least years since Plaintiff fell into Epsteins trap and Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Page6 became one of his victims and Plaintiff is now at least years old Plaintiff turned at least years ago well pass the applicable year statute of limitations Under Florida law the statute of limitations for assault and battery is years See Defendants Motion To Dismiss Complaint dated July DE for discussion as to why Fla Stat does not apply to Plaintiffs Count I for sexual assault and battery See endnote hereto for statutory text of subsection including statutes referenced therein In her memorandum Plaintiff attempts to rely on the statutory definition of abuse as set forth in Fla Stat and claims that she has until years after she reaches the age of majority to bring suit i.e until she is years old or within years from the time she discovers both the injury and the causal relationship between the injury and abuse whichever occurs later As noted above there are no allegations of repressed memory or similar type traumatic amnesia In fact the allegations reveal that after the alleged one encounter Plaintiff knew immediately that she suffered damage in or about when she was She could have brought the action in in her own right when she turned She is now at least years old A review of the Count I allegations establish that Plaintiff is attempting to assert a claim for Floridas common law assault and battery to which a year statute of limitation applies See Defendants motion to dismiss As noted in fn of her memorandum Defendant is not seeking dismissal of Count II as in Plaintiff tracks the language of Fla Stat pertaining to abuse Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Page If this Court were to agree with Plaintiffs position that she has adequately pied a claim based on sex abuse in Count I which she has not then either Count I or Count II Intentional Infliction of Emotional Distress is required to be dismissed as neither is a free-standing tort because both counts reallege the same underlying facts and damages See Tobin Damian So.2d fn Fla 4th DCA In discussing plaintiffs claim for intentional infliction of emotional distress the Court determined that it was not a free-standing tort because it realleges the same facts mentioned in appellants sexual abuse claims and fails to provide any additional facts Citing to Fridovich Fridovich So.2d Fla holding that no separate cause of action for intentional infliction of emotional distress existed where plaintiff merely renamed the initial cause of action and repled the same facts Accordingly Count I is required to be dismissed as the applicable statute of limitations has expired In the alternative either Count I or Count II is required to be dismissed as they are duplicative claims as opposed to free-standing torts Ill The Complaint on its face shows that Count Ill is time barred Count Ill is brought pursuant to U.S.C which contains its own statute of limitations in subsection The language of is clear and unambiguous 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 Plaintiff now attempts to The primary principle of statutory construction requires courts to give effect to the plain meaning of the words used in their ordinary and usual sense Caminetti U.S U.S To the extent possible the rules of statutory construction require courts to give meaning Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Page8 argue that the delayed discovery doctrine applies although there are no allegations in the Complaint which implicate its application The delayed discovery doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action The United States Supreme Court applied the blameless ignorance doctrine in Urie Thompson U.S S.Ct L.Ed thereby delaying the accrual of a cause of action until the plaintiff reasonably discovered the right of action reasoning that the traditional purposes of statutes of limitations require the assertion of claims within a specified period of time after notice of the invasion of legal rights Id Again the Complaint allegations are clear that Plaintiff was aware that she was an alleged victim as a result of the alleged one encounter with EPSTEIN in and that she allegedly suffered damages therefrom By her own allegations she felt frightened and trapped at the time There are no allegations of repressed memory or traumatic amnesia or other allegations which would delay the accrual of the cause of action Based on the allegations of the Complaint Plaintiff turned in and thus she was no longer under the legal disability of being a minor Approximately years have passed since the alleged one time encounter well pass the year statute of to every word and clause in a statute U.S Menasche U.S TRW Inc Andrews U.S Additionally courts must reject statutory interpretations that would render portions of a statute surplusage TRW at Brotherhood of Loe Engineers and Trainmen Gen Comm CSX Transp Inc F.3d th Cir Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Page9 limitations and approximately years have passed since the legal disability of being a minor was removed well passed the year period WHEREFORE Defendant requests that this Court dismiss Counts I and Ill of Plaintiffs Complaint with prejudice In the alternative Defendant requests that this Court dismiss either Count I or II with prejudice along with Count Ill wi rejudice Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing ectronically 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 record identified on the following Service List in the manner specified by CM/ECF on this day of August Stuart Mermelstein Esq Adam Horowitz Esq Biscayne Boulevard Suite Miami FL Fax ahorowitz hermanlaw.com lrivera hermanlaw.com Counsel for Plaintiff Jane Doe Jack Alan Goldberger Esq Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL Fax jagesg bellsouth.net Counsel for Defendant Jeffrey Epstein Respectfully submitted BURMAN CRITTON LUTTIER COLEMAN LLP Flagler Ive Suite West Pal FL By vY--cr Critton Jr lorida ar Michael Pike Florida Bar Counsel for Defendant Jeffrey Epstein rcrit bclclaw.com Case Document Entered on FLSD Docket Page of Jane Doe No Epstein Page Fla Stat mpike bclclaw.com For intentional torts based on abuse.--An action founded on alleged abuse as defined in ors or incest as defined in may be commenced at any time within years after the age of majority or within years after the injured person leaves the dependency of the abuser or within years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse whichever occurs later Fla Stat Abuse means any willful act or threatened act that results in any physical mental or sexual injury or harm that causes or is likely to cause the childs physical mental or emotional health to be significantly impaired Abuse of a child includes acts or omissions Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child Fla Stat Abuse means any willful act or threatened act that causes or is likely to cause significant impairment to a vulnerable adults physical mental or emotional health Abuse includes acts and omissions Fla Stat Abuse means any willful act that results in any physical mental or sexual injury that causes or is likely to cause the childs physical mental or emotional health to be significantly impaired Corporal discipline of a child by a parent or guardian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child as defined in
15,241 characters
