Case Document Entered on FLSD Docket Page of CASE NO 08-80804-CIV-MARRA/JOHNSON ALLEGATIONS IN PLAINTIFFS COMPLAINT This action arises out of the alleged assault of the plaintiff According to the allegations in her amended complaint the plaintiff went to Mr Epsteins house to give him a massage for monetary compensation Am Compl where Mr Epstein allegedly assaulted her in violation of Chapter of the Florida Statutes Am Compl To sharpen her lawsuit the plaintiff says she is seeking damages in connection with a conspiracy Am Compl a plan Am Compl a scheme Am Compl and an enterprise Am Compl and adds two nominal defendants The plaintiff tries to assert claims for sexual assault Am Comp r,r civil conspiracy Am Compl r,r and civil RICO Am Compl r,r These theories of liability however cannot be supported by the allegations in the amended complaint In fact even if everything in the amended complaint were true recovery against Jeffrey Epstein for Counts I II and IV under any formulation is impossible under Florida law Accordingly these counts must be dismissed the claims contained in the plaintiffs complaint the defendant is not required to file an answer until the comi rules on the motion to dismiss Notably on February the plaintiff was deposed in State of Florida Jeffrey Epstein Fla 15th Cir Ct filed Jul During that deposition she made numerous admissions that completely undermine the allegations that she has pled in her complaint against Mr Epstein Regardless for the procedural purposes of this motion only we take her allegations as true Case Document Entered on FLSD Docket Page of CASE NO 08-80804-CIV-MARRA/JOHNSON ARGUMENT A motion to dismiss under Fed Civ should be granted when a court cannot identify each of the material elements necessary to sustain a recovery under some viable legal theory Snow DirectTV Inc F.3d 11th Cir quoting Roe Aware Woman Ctr For Choice Inc F.3d 11th Cir Moreover a court should dismiss a complaint when on the basis of a dispositive issue of law no construction of the factual allegations will support a cause of action Marshall County Bd of Educ Marshal County Gas Dist F.2d 11th Cir To survive a motion to dismiss plaintiffs must do more than merely state legal conclusions they are required to allege some specific factual bases for those conclusions Holt Crist No WL 11th Cir Apr As such conclusory allegations unwa1Tanted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal Snow F.3d at I Count I Fails to State a Cause of Action For Assault Recognized by Florida Law The plaintiff attempts to plead a cause of action against Mr Epstein for sexual assault based on a violation of Chapter of the Florida Statutes for the lewd and lascivious acts committed by Epstein upon Jane Doe Am Compl Chapter Florida Statutes is entitled Lewdness Indecent Exposure Case Document Entered on FLSD Docket Page of CASE NO 08-80804-CIV-MARRA/JOHNSON The plaintiff cannot assert a cause of action for violation of Chapter Florida Statutes because there is no private right of action under that Chapter See generally Am Home Assurance Co Plaza Materials Corp So 2d Fla observing that not every statutory violation carries a civil remedy citing Villazon Prudential Health Care Plan Inc So 2d Fla See also e.g Miami Herald Publg Co Ferre Supp S.D Fla King C.J holding that violation of Floridas criminal extortion statute does not give rise to a civil cause of action for damages Where a plaintiff brings a civil action pursuant to a criminal statute that provides no civil remedy her complaint is properly dismissed for failure to state a cause of action See Mantooth Richards So 2d Fla 4th DCA per curiam affirming dismissal of plaintiffs claim for parental kidnapping where the mentioned statutes concern only criminal violations and do not afford a civil remedy citation omitted emphasis added Accordingly the plaintiffs claim for sexual assault against Mr Epstein pursuant to a violation of Chapter Florida Statutes must be dismissed Should the Court look beyond the plain language of the plaintiffs amended complaint and construe Count I as a claim for common-law assault that claim would also fail As the court explained in Lay Kremer So 2d Fla 1st DCA an assault is an intentional unlawful offer of corporal injmy Case Document Entered on FLSD Docket Page of CASE NO 08-80804-CIV-MARRA/JOHNSON to another by force or force unlawfully directed toward another under such circumstances as to create a fear of imminent peril coupled with the apparent present ability to effectuate the attempt An assault thus requires an affirmative act-a threat to use force or the actual exertion of force Sullivan At Fed Sav Loan Assoc So 2d Fla 4th DCA affirming dismissal of assault claim where there was no affirmative act In this case there is no such affirmative act The plaintiff does not allege that Mr Epstein used force or even threatened to use force Indeed the only statements that Mr Epstein is alleged to have said to the plaintiff are to remove her clothes to sit on his back and to continue giving him a massage Am Compl These allegations fall far short of an offer of corporal injury by force Accordingly because the plaintiff has failed to plead a cause of action for assault recognized in Florida Count I against Mr Epstein must be dismissed II Count II Fails Because Plaintiff Claims No Actionable Underlying Tort or Wrong As a general rule an actionable conspiracy under Florida law requires an actionable underlying tort or wrong Wright Yurko So 2d Fla 5th DCA A nan-ow exception to the general rule exists where the plaintiff can show some peculiar power of coercion possessed by the conspirators by virtue of their combination Churruca Miami Jai-Alai Inc So 2d Fla Where the concerted acts of the defendants do not create a Case Document Entered on FLSD Docket Page of CASE NO 08-80804-CIV-MARRA/JOHNSON greater hann than if the acts were committed by one person there can be no recovery under a claim for independent conspiracy Martin Marlin So 2d Fla 3d DCA Clearly this case is governed by the general rule because only one person could have caused the plaintiffs injuries Here the plaintiffs claim under Count II civil conspiracy fails because it derives exclusively from Count I violation of Chapter Florida Statutes See Buchanan Miami Herald Publg Co So 2d Fla holding that where Count I of the complaint had failed to state a cause of action for malicious prosecution there could be no civil conspiracy claim in Count II based on the allegations of Count I As noted above the plaintiff cannot prevail on Count I because the statute she expressly pleads as its basis Chapter Florida Statutes provides no civil remedy Therefore she cannot prevail on her claim for conspiracy Count II to violate Chapter Florida Statutes Count I and Count II of the amended complaint must be dismissed against Mr Epstein I Count IV Cannot Stand Because Plaintiff Fails to Claim a Direct Injury Resulting from a Violation of a RICO Predicate Act Section Florida Statutes Civil Remedies for Criminal Practices allows someone to bring a civil RICO claim only if he or she has been injured by reason of any RICO violation Fla Stat emphasis added The injury must be a direct result of a racketeering activity or RICO predicate act Case Document Entered on FLSD Docket Page of CASE NO 08-80804-CIV-MARRA/JOHNSON See Baisch Gallina F.3d 2d Cir A plaintiff does not have standing if he suffered an injury that was indirectly and hence not proximately caused by the racketeering activity or RICO predicate acts even though the injury was proximately caused by some non-RICO violations committed by the defendant Thus an injury allegedly caused by a non-RICO violation is insufficient to state a claim for civil RICO See id Here the allegations in Count IV even if they are true do not add up to a civil RICO claim because the plaintiffs alleged injury was not caused by the violation of a RICO predicate act The plaintiff alleges that she was injured as a direct and proximate result of Epsteins assault on Jane Doe in violation of Chapter of the Florida Statutes Am Compl r,-r Chapter of the Florida Statutes is not a RICO predicate act See a Fla Stat listing Floridas RICO predicate acts By her own admission the plaintiffs alleged injury was caused by a non-RICO violation As a result her claim cannot stand In a doomed attempt to avoid this fatal flaw in her claim the plaintiff lists a series of violations rooted in Floridas prostitution statutes Am Compl According to the amended complaint the defendants participated in a criminal enterprise or conspir acy Am Compl over an unspecified length of time to repeatedly find and bring Jeffrey Epstein underage girls in order for Case Document Entered on FLSD Docket Page of CASE NO 08-80804-CIV-MARRA/JOHNSON Epstein to solicit coerce entice compel or force such girls in acts of prostitution and/or lewdness Am Compl The alleged pattern of criminal activity comprises violations of Chapter Florida Statutes-the chapter that proscribes various crimes of prostitution These allegations however do not tie directly into the plaintiffs alleged injuries her alleged assault in violation of Chapter of the Florida Statutes Am Compl Indeed the plaintiffs alleged injury has nothing to do with the facilitation of prostitution or more succinctly the violation of Floridas prostitution laws Accordingly the plaintiffs claim must fail because there is no proximate cause between the purported pattern of criminal activity and the plaintiffs alleged injuries Because the amended complaint does not satisfy the direct-injury requirement under Floridas RICO law the plaintiff has failed to allege a cause of action against Jeffrey Epstein for violation of section Fl01ida Statutes Thus Count IV of the amended complaint must be dismissed Conclusion For the reasons set forth herein Defendant Jeffrey Epstein respectfully requests that Counts I II and IV of the plaintiffs amended complaint be dismissed The amended complaint alleges a pattern of criminal activity comprising the following criminal violations and Fla Stat Am Compl Case Document Entered on FLSD Docket Page of CASE NO 08-80804-CIV-MARRA/JOHNSON Respectfully submitted LEWIS TEIN Grand Avenue Suite Coconut Grove Florida Tel Fax By Isl Michael Tein GUY A.LEWIS Fla Bar No lewis lewistein.com MICHAEL TEIN Fla Bar No tein lewistein.com ATTERBURY GOLDBERGER WEISS P.A Australian Avenue South Suite West Palm Beach Florida Tel Fax By Jack A Goldberger Fla Bar No jgoldberger agwpa.com BURMAN CRITTON LUTTIER COLEMAN LLP Flagler Drive Suite West Palm Beach Florida Tel Fax Case Document Entered on FLSD Docket Page of CASE NO 08-80804-CIV-MARRA/JOHNSON By Robert Critton Esq Fla Bar No rcritton bclclaw.com Michael Pike Esq Fla Bar No mpike bclclaw.com Attorneys for Defendant Jeffrey Epstein CERTIFICATE OF COMPLIANCE WITH LOCAL RULE Undersigned counsel has conferred in good faith with counsel for the plaintiff who opposes the relief requested in this motion Isl Michael Tein Michael Tein CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 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 individuals on the following service list in the manner specified either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive Notices of Electronic Filing Isl Michael Tein Michael Tein Case Document Entered on FLSD Docket Page of CASE NO 08-80804-CIV-MARRA/JOHNSON Service List Theodore Leopold Esq Ricci-Leopold P.A PGA Blvd Suite Palm Beach Gardens FL Fax Counsel for Plaintiff Jane Doe Douglas McIntosh Esq Jason A McGrath Esq McIntosh Sawran Peltz Cartaya P.A Centurion Tower Forum Place Suite West Palm Beach Florida Fax Counsel for Defendant Haley Robson Bruce Reinhart Esq US Mail Bruce Reinhart P.A South Australian A venue Suite West Palm Beach Florida Fax Counsel for Defendant Sarah Kellen
