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Epstein Release Interview Victim Statements Evidence Maxwell
← Back to Doe v. Epstein, No. 9;09-v-80469 (S.D. Fla. 2009)
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UNITED STATES DIST RICT COURT SOUTHERN DI STRICT OF FLOR IDA JANE DOE II CASE NO Plai ntif vs JEFFREY EPSTEIN and SARAH KELLEN Defendants PLAINTIFF?S MEMORA NDUM OF LA IN OPPOSITION TO DEFEND AN EPSTEIN?S MOTION TO DISMISS Plai ntif Motion to Dismiss Defendant?s arg ument for a dismissal is premised on the followi ng Plai ntif is not permit ted to file a cl aim under Flor ida law i a State of Florida ourt and then file a federal cl aim in a federal ourt the remedi es ame ndment to are not retroactiv based on the dates Defendant EPSTEIN is alleged to hav violated the statute damages under be lumped together into a single recovery despite multiple violations occurring in temporally distinct time frames and th erefore being diff erent incidents Plaintiff has failed to state a cause allege facts constituti ng a predic ate act and Plaintiff has ailed to state a cause of action for conspira cy to violate I LEGAL STA NDARD Defendant?s mo tion to dismiss must be denied unless it appears beyo nd doubt that the plaintiff can prov no set of facts in support of her claims hat would ent itle her to eli ef Case Document Entered on FLSD Docket Page of On a Motion to Dismiss he Court is of course confined to he four corners of the Complaint an it is compl etely impr oper for the Defendant attach as Ex hibits copies of a Complaint rom a different proceeding a fact that is not alleged anywhere in the Complaint at issue bef ore this Court Nevertheless because the Def endant?s argument on thi issue is meritless Plaintiff addresses it on the meri ts Conley Gibson U.S The Court must ac cept all of plai ntiff?s factual allegations as true Schuer Rhodes U.S Rul a of the Federal Rules of Civil Procedure pr ovides that a complaint need onl be a sho rt and plain tatement of the claim and as long as the pleadin gs give defendant air notice of what the plaintiff claim is and the grounds upon which it rests notice pleading has been satisfied Conley Gibson U.S at For a claim to state a cause of action howev er facts not abels and conclusions must be asserted Bell Atl Corp Twombly U.S II ARGUMENT Point laintiff has every right proceed in State cou rt for a Florid a common law claim an in this Court or a federal claim Defendant PSTEIN argument on this point i frivolous Plaintiff?s cl aims in State court are based on the ommon law Florida hile the federal claims are bas ed on a federal stat utor reme dy There are differ ent fac ts that prov each claim and different elements to the claims efendant seems to be arg uing that the Plaint iff forfeits a right to a federal remedy hen she invokes a parallel but independent and holly di stinct ri ght to a State remedy That is simply not supported by any case or reasonab le interpretati on of any case The lynchpin of Defen dant?s argument is that concurrent jurisdiction is available to hear all clai ms in ne forum that i simp ly no the ase ince he stat clai ms are vastly different than the federal statuto ry remedy If the State claims had bee filed in this Court this Court would not be obligated to exercise concurrent jurisdiction It is ell establi shed that the exercise of supplemental jur isdiction i discreti onary ith the court and is properly rejected Case Document Entered on FLSD Docket Page of In United Mine Workers Gibbs U.S a jury?s verdict against a uni on based on State aw claims was rev ersed in par because the federal law clai failed The Court oted that It ha consistentl been recog nized that pendent jurisdi ction is a doc trine of discr etion not of plaint iffs right Its justific ation lies in considerations of judicial econ omy convenience and fairness to litigants if these are not present a fede ral court should hesitate to exercise jurisdiction over state claims even though bound to apply state law to them Erie Co Tompkins U.S 64.Needless decisions of state law by a federal court should be avoided bo th as a matter of comit and to pro mote ju stice betw een the parti es by procu ring for the a surer-footed reading of applicable law under many circumstances U.S.C supplemental urisdicti on provi des that The district courts may decline to exercise supplemental jur isdiction ov er a claim under subsection a if th cla im ra ises a nove or co mple issue of tate law the claim substantially predom inates over the cl aim or clai ms over which the distric court has or iginal urisdicti on the di strict cour has dismiss ed all clai ms over hich it has or iginal jurisdict ion or in ex ceptional ci rcumstances here are othe compel ling reas ons for declining jurisdict ion Courts routinely are oblig ated to raise a nd decide issues of subject matter jurisdic tion sua sponte any time it appears subject matte jurisdiction is absent Carias Leno Financi al Mortgage Corporation U.S DIS LEXIS N.D Cal March In Carias after grantin ummary judgment on the sole ederal claim the Court remanded the State clai ms to state court stating The Court decli nes to exer cise pendent jurisdict ion over the tate law laims and remands the action to tate court The Court finds that the issues of econom convenience fairness and comity collectively weigh in favor of remand See Harrell F.2d at Comity weighs especially strong given that the remaining claims are pure state law claims with no connection to federal law Econo my also weighs in favor of remand as state courts are better equipped to effici ently handle state Case Document Entered on FLSD Docket Page of law claims Id at emphas is added In Daimler Chr ysler orporation Charlotte uno U.S the Supr eme Court stated Gibbs held hat feder al-q uesti on jur isdic tion ov er a cl aim may authorize a federal court to ex ercise jur isdiction ov er state-law claims that may be view ed a part of the same cas because they derive from a common nuc leus ope rative fact as the federal clai U.S at Ct Ed Plaintiffs assume that Gibbs stands for the propositi on that federal juri sd iction extends to all claims sufficien tly related to a claim within Article I to be art of the same case egardless of the nature of the deficiency that would keep the former clai ms out of federal court if presented on their ow Our general appr oac to th application of Gibbs howev er has been markedly more cautious For example as a matter of statutory constructi on of the pertinent jur isdictional provisi ons we efused to extend Gi bbs to allow claim to be asserted against nondi verse par ties when jurisdict ion was based on diversity see Owen Equipment Erection Co Kroger U.S Ct 2d and we refused extend Gibbs to auth orize supplemental jurisdiction over claims that do not satisfy statutory a ount-in-controversy requirement see Finl ey nited States U.S Ct Ed 2d As the Court explained just last Term we have ot app lied Gibb exp ansi ve int erpr etive approach to other aspects of the jurisdiction al statutes Exxon Mobil Corp Allapattah Servs U.S Ct Ed 2d apply ing U.S.C enacted in to allow a federal court in a diversi ty action to ex ercise suppl emental juris diction over additional diverse plaintiffs whose claims ailed to meet the amo unt-in-controversy threshold What we have never one is apply the ration ale of Gi bbs to permit a fe deral ourt to exercise supplem ental jurisd iction over a claim that does not itsel satisfy hose lements of the Articl I inquir such as consti tutional standing that serve to identify those dispu tes which are appropriately resolved through the udicial process Whitmore U.S at Ct Ed 2d Emphasis added Defendant?s argumen that the Court should absta in from deciding the purely federal issues in this case because there is an i ndependent action under St ate law i absurd For this arg ument the Defendant rel ies on the Colorado Ri ver abstent i on doctrine clearly Case Document Entered on FLSD Docket Page of The federal claims th at are the subject matter of this action are not necessarily parallel although the incidents tha gave rise to both the federal and stat claims arise from the same series of events A lorida appell ate court for ex ample has refused to appl pr inc ipl es of res judicat a to bar State discrimination claims af ter the plaintiff lost federal discri mination clai ms Andujar National Property Casualty Underwriters So 2d Fl a 4th DCA advers judgment ag ainst plainti ff in federal court for federal discri mination clai ms did not bar ubsequent acti on under state di scriminati on laws Here althoug some of the elements for some of the claims may be similar they are suffi cie ntly diffe rent that appl ica tion of Andujar would pr eclude res judicat a To determine wh ether a case i parallel courts hav looked to hether the same is sues are being itigated Calvert Fire Ins Co Amer ican Mut eins Co F.2d 7th ir he issues in the State court and in this ourt are not the same The Supreme Court aid that Cong ressional di rection is the most impor tant factor Id at inapplicable to this case Only in exceptio nal circ umstances to pr omote conserv ati on judicial resources a nd comprehensiv dispositio of litigati on would a feder al co urt be authorized to dismiss federal parall el claims that ar initiated i state court Colorado River Water Conserva tion Distr ict nited States U.S How ever for the Colo rado River doctrine to ev en apply ther must be clear Congressi onal directi on that would preclude a federal cour vi rtually unflagging obligatio to exer cise federal jurisdict ion Id at In that cas the Supreme ourt found that clear ongressiona direction from the McCar ran Amendment hich the Cour read to counsel against piecemeal litigat ion concerning issues of ater rig hts in a ri ver sy stem favored abstention Id at Eve with this lear Congr essi ona dire ctio if othe fac tors had ot avo ed abstention it may not hav been ordered Id at Defendant EPSTEIN does not offer any evidence of any Cong ressional di rection that would direct this Court to abstain for claims under U.S.C Further the Colorado River doctrine only applies hen federal courts are pre sent ed ith di fficu lt uest ions of state Case Document Entered on FLSD Docket Page of Colorado Ri ver has been applied where the plaintif is pursuing federal civil rights laims in stat and federal courts at the same time hich is not he case here See for exam ple Atchinson Nelson Supp yo law bearing on pol icy probl ems of sub stantial public impor whose impor tance transcends the result in the case at bar Id at emphasis adde Plaintiff in this case is not asking this Court to adj udicate any claims under tate law nor do the claims presented policy probl ems of substantial publ ic impo rt This case i nvolves claims aga inst an indiv idual brought by another indiv idual Just how narrow the circumstances under which abstention is appropriate und er the Colorado River doctrine was demonstrated in the sub sequent decisi on of the Su preme Court in he ca se of Will Calver Fire Insur ance Co U.S I ill th Su preme Court further narrowed he contours of hen a federal court may abs tain whe there is a parall el state acti on In that case a bare majorit of one held upheld the District Court?s decision to a bstain how ever Jus tice Blackmun in casting the deciding vote did so because he was of the opinion that the remedy sought mandamu was premature since the Appellate Cour which ha revers ed the District Court should have simply directed it to reconsider the issue in light of the very limited circumstances under which abstent ion is appropriate under the Colorado Ri ver doctrine Id at While the ill case recog nizes that Colorado Ri ver abstention is a matter generally left to the sound dis cretion of the Di strict Co urt the Elev enth Circui has ab oli shed its application for claims pr edicated on Alacare Inc v.Bagi ano 2d 11th Cir See also Tova Bil lmeyer 2d 9th Cir rejecti ng app ication of abstention in Sec tion cases Defendant cites no cases here the Case Document Entered on FLSD Docket Page of Plaintiff acknow ledges that efendant EPSTEIN?s ag reement is betw een the United States a nd he howev er the Plaint iff and the other ictims of his exual predation may be considered hird party beneficiaries to the agreement Colorado River doctrine has been applied to a federal claim under The case cited by Def endant EPSTEIN do not supp ort a decision by this Court to abstain over what is a purely federal claim In American Banker Ins Co First St ate Ins Co F.2d th Cir the District Court dis misse a purely state law claim for equi table subrog ation because there had been an earlier claim for decl aratory elief in State ourt the Elev enth Circuit reve rsed co ncludin that no exceptional circumstances require dismissa of this case in deference to the pending state court proceed ing If it ere simply a question of judi cial economy this litigation probably should proceed in the New York court A federal ourt ca nnot properly decline to exercise its statutory jurisdict i on owever simply because judici al economy mig ht be serve by deferring to a stat court Feder al courts hav a vir tually unflag ging obligation to exercise the jurisdiction given them Colorado Ri ver U.S at Ct at The in terest in pr eserving federal juris diction mandates that this action not be di smissed F.2d at Fina lly Plaintiff has pled that Defendant EPSTEIN has made an agreement ith the United States Attorney?s Office to ot contest the jurisdict ion of his Court i exchange for a avoiding prosecution un der federal law for solicit ation of minors for rostitution Complaint Defendant EPSTEIN appears be violat ing the ag reement in contes ting the jur isdiction of this Court at a minimum at hi stage of the pl eadings he sho uld be estopped from contesting urisdicti on since the al legations of must be accepted as true Point The retroactivity of the amendm ents to is not appropriat ely addressed in a motion to dismiss but if the Court is so inclined to consid er it there are insufficient facts pled in the Complaint to render the amendment inapplicabl to the cas at bar Case Document Entered on FLSD Docket Page of Plai ntif all ege th at efend ant PSTE IN or ther ork ing on hi beh alf solicited he Plaintiff for pros titution hile she as a minor on and I add iti on lai ntif belie ves hat the re ere as many a to othe occ asions durin thi time frame that Defendant EPSTEIN olicited her and procured her to perform prosti tution services all during the time that she was a minor The only issue properly before the Court is whether the Complaint states a cause of action of the Complaint claims that the Plaintiff is enti tled to the sum of for each event herein Defendant EPSTEIN solicited the Pla intiff for prostitut ion Each ev ent is set forth in the Complaint in There are tw related iss ues before the Cour the amount of minimum damages ecoverable or and wh ether the Plai ntif can recov er the minimum amou nt of damages or each temporally distinct event or whether she is restr icted to a si ngle recov ery of the mini mum damages recov erable under the statute For the first issue it is lai ntif position that the matter ca nnot be decided on a motion to dismiss because what Defendant EPSTEIN is ask ing the Cour to do is to de clare prem atur ely that when the Court instructs the jury it in truct them that he minimum recovery for the Plainti ff if she proves he allegati ons is either for the enti re set of events Defendant EPSTEIN?s position or for each event Plaintiff?s position this issue cann be settled on a motion to dismis but is bett er reserv ed for the charg ing conference at trial On the second is sue as wi ll be address ed late unde the pla in langua ge of the statute since Defendant EPS TEIN can be criminally prosecuted for each te mporally distinct ev ent where he solicited his minor for pr ostitution he can be subjected to the civil remedy for damag es for each such event under either version the statute This econd Case Document Entered on FLSD Docket Page of Defendant EPSTEIN als cites to United States Siegel F.3d th Cir whe rein bas ed on a def end ant ina bilit to pa resti tuti on and ated by a penal statute the Court rev ersed a resti tution order An amendment to the statu te removed from consideratio the defenda nt?s ability to pay restitution the Court said such an amendment coul not be applied etroactiv ely because the provis ion amounted to a punishment und er a penal statute and would violate the ex post acto provision in the Constitution This case is clearly distinguished our case the statute here is a civil not a penal remedy the amendm ent to the statute mo difies the minimal exposure of the Defendant but does not as in the Siegel case disp ense with a ubst anti ve defense to a restit ution claim United States Whiting F.3d th Cir where a conviction for possession of child po rnography was upheld despite the fact that the conduct of the defendant was arg uably not sp ecifically proscribed by statute at the time the images were possessed the Court held the legislative amendment was a mere clarific ation of the prior legisla tion and not an ex post facto law Justice Scal ia cited the tatement of purpose of the ivil ights Act of to hold that for ex ample the amendments spe cifically designed to verrule Patt erso McLean Credi Union U.S Ed 2d Ct shoul be issue would be bett er addressed on a summary jud gment motion and ag ain has no thin to do with hether Plainti ff has pled a cause of action pursua nt to Rule Fed Civ Plai ntif agrees ith the gener al propositi on that a new law that reates new subs tant ive right ab sent Congr essi ona dire ctio to he co ntra ry do es no have retro acti ve effect but this is not a new law was amended i to inter alia provide an enhanced minimum recov ery for damag es caused by sexual predators such as Defendant EPSTEIN Howev er the chang in the civ il remedies available of a statute is a procedural ot a substantive change in the law and procedural chan ges to a statute are routinely applied retroactively here substantive changes in a law are made by Congress a slim majority of the Supreme Court has declined etroactiv application even wh ere the law was ostensi bly enacted to overrule a Court precedent th at had itself in the view of Congress overrule earlier ourt precedents Rivers Roadway Express U.S Case Document Entered on FLSD Docket Page of applied prospec44 tively47.992 only based42 on a statutori44 ly exp42 ressed ressional ntent to do so 223The statut43 that was ctually enacted in cont44 ains no comparabl44.992 language Instead of a reference 221restori44 ng pre-ex56 isting ights statement of purpose42 describes the Acts function-44 as expanding the scope of relevant civil rights statutes in order to prov54 ide adequate otection to ictims of disc43 rimination Act Stat emphasi44 added Simi54 ly42 in44 the ion case52 of Landgraf Usi Film Prods U.S the Court declined to retroactively apply substantive changes to Title VII but noted that hile we have strictly constru ed Ex Post Facto Clause to prohibit application of new statutes43.992 creating or increasing50 punishments after the fact we have upheld interveni47 ng procedura42 changes en if applicatio42 of the new rule operat-42 ed to a dants-43 disadvan-45 tage in the parti42 cular case See Dobbert Flor46 ida U.S Ed 2d Ct see also Collins Youngbloo41.992 U.S Ed 2d Ct Beaze-55 ll Ohio U.S Ed Ct The question bec43 omes then is an ncrease in the minimum guaranteed42 damages of a civil remedy statute a substantive or a procedural hange A careful reading of Landsgraf compels a fin-52 ding hat is a dura-49 cha-38 nge nly at st given troa-47 ctive application Although the Landsgraf Court decli ned to giv retroactiv56 application to the change most analogous to the one at issu42 here it so because it found the created right to nsat-50 ory mage-49 vious-46 ly not available under Title VII and made available by the Civ56 il Rig42 hts Act of as in effect the crea42 tion of a new tatute The provisi47 on of a aut horizin the recovery of compensatory damages is not easil47 classi47.992 fied It does not make unlawful conduct that as lawful when it oc45 curred as we hav50 noted supra U.S at only4 reaches discriminatory conduct already prohibited by Title VII Concerns about a lack of fair not42 ice are further43.992 mut ed by the fact that such discrimination was in many cases although not one already)56 subject to monetary liabi-49 lity the orm ckpa-48 Nor could anyone seriously49.992 contend Case Document Entered on FLSD Docket Page of that the compensator damages pro vi sio ns mack of a retributi ve or other suspect legisla tive purpos Sec ti on reflects Congress desire to af ford vic tims of discrimination more com plete redress for violations ru les established more than a gener ation ago in the Civi Rights Act of At least with respect to its compensatory damages provisions the is not in a category in whic obj ectio ns to retroac tive appli cation on gr ounds of fairness have their gr eatest force Nonetheless the ew co mpensatory damag es provis ion would operate ret rosp ecti vely if it were applied to conduct occurring bef ore November Unlike cer tain other forms of elief compens at ory damages are quintessentially backward looking Compensatory damages may intended less to sanction rongdoers han to make vi ctims whol but they do so by a mechanis tha affects the liabil ities of defendants They do not compen sat by distr ibuting funds from he public coffers but by req uiring particular employers to pay for har ms they cause The introducti on of a right to compensatory damages is al so the type of egal chang that would have an impact on private parties planning In this case the event to which the new damages provision relates is the dis criminator conduct of espondents age nt John illiams if applied here that provision would attach an important new legal burden to that onduct The new dam ages reme dy in we conclude is the kind of provisi on that does not appl to eve nts antedating its enactment in the abs ence of clear cong ressional i ntent In cases like this one in which prior law afforded no relief can be seen as creating a ew cause of act ion and it impact on parties rights is especially pro nounced Section confe rs a new right to monetary relief on persons li ke petitioner who wer vi cti ms of a hostile ork envir onment but were not construct ively discharg ed and the novel prospect dam ages liability for their employers Because Title VII previously authorized recovery of backpay i some cases and ecause compensator da ages under a are in addition to any backpay recoverable the new provision also resembles a statute incre asing th amount of da mages available under a preestablishe cause of action ven under that view howeve the provisi on would if applied in ases arising before the Acts effective date und oubtedly impose on employers found liable a new disability in respect to past events See Society for Propagation of the Gospel Cas at The extent of a partys liabilit in the ivil ont ext as el as the cri minal is an i mportant ega consequence that cannot be ignored Neither in Bradley itself nor in any case before or since in which Congress had not clearly spok en ave we read a statute subst antially increasing the monetary liabilit of a priv ate party to apply to onduct occurr ing before the tatutes enactment See inf ree North ern Pacific Co U.S Ed Ct statute creati ng new federa cause of action for wrong ful death Case Document Entered on FLSD Docket Page of inapplicable to case aris ing before enactment in abs ence of explicit words or clear implication Unit ed St ates Fide lity Guaranty Uni ted States ex rel Struthers Wells Co U.S construing statute restricti ng subcontractor right to recov er damages from prime contractors as prospective in absenc of clear str ong and imperati ve languag from Congress favoring retroactivity Id at footnotes mitted Here we have an incr ease in the potenti al damages remedy but i was a damag es remedy that already existed at the time of Defendant EP STEIN?s commission of the ac ts against the minor Henc here unlike Landsgraf there was an existi ng civ il remedy prior to Defendant EPSTEIN?s commission of the acts against the minor Pla intif and there continues to be such a re me dy Simil ar to our fact ituation here in Bradley School Bd of Richmond U.S Ed 2d Ct a unanimo us Court applied an interv ening statute authorizi ng an award of att orneys fees for parties eeking to end school seg regation a case pending on appeal at the ti me the statute as enacted Noting that the statute created an additi onal basis or source for the oards pot entia obligation to pa attorneys fees U.S a the Court foun that the statute?s retro acti ve application id no advers ely affect the settled xpectations of the parties It is difficult to im agine par ticu larly hen th Court is contemplating a motion to dismi ss that Defendant EPSTEIN ha a settled ex pectation that if and when he as caught for solicitati on of minors for prostitution he would be liable for only a minimu of it is hi ghly pro bable that he nev er believ ed he would be caught and he nev er knew of or contemplated the civi penalties he would face under It i high ly unlikely that Defen dant EPSTEIN made those alculations when he committ ed the crimes ag ains thi or any other mi nor Hen ce th rationale us ually adv anced for prospect ive appli cation of Case Document Entered on FLSD Docket Page of Although outsi de the pleading and not appropr iate for consider ation on a Motio to ismi ss De fen dan EPS TEI has refu sed ans wer an subs tant ive questions in the only two depositions he has given in all these cases including in the State court case invol ving thi Plaintiff Accor dingly Plaintiff has not een able to ascertain whether Defendan EPSTEIN had settled expecta tions about the limits of his civil liability under At no time ithin the las generation has an employer had a vested right to engage in or to permit sex ual harassment there is no such thing a a vested ight to do wrong Freeborn Smith U.S Wall Ed See also Singe Sutherland on Statutory Constructi on 4th rev ed procedural and remed ial statutes that do not take away vested rights are presumed to apply to pending ac tions Sect ion of the Act ex pands the remedies available for acts of intenti onal discri mination but does not alter the cope of the employees bas ic righ to be free from disc rimination or the employer corres ponding legal duty There is nothi ng unjust about holding an empl oyer res ponsible for inj uries caused by conduct that has bee illegal for almost years Id at Similarly in this case solic iting minor for acts of pros titution has been unlawful and the civi remedy associated ther ewith has long preceded the acts in uestion statutory enactments is simpl not prese nt here and the ecord is dev oid of any factual materi al that ould support su ch a conclusi on As Justice Blackmun said in dissent in Landsgraf the re is vest ed rig ht to brea the law Bottom line is a motion to dismiss a claim is not the correct procedural mecha nism to determine the etroactiv ity of a statu te Landsgraf was deci ded after a trial on the merits of the claim herein the tri al court deter mined that al though the sexual har assment was serious the employer upon learning of it had taken prompt remedial easures to correct it and the plai ntiff did not have ufficient cause to arrant qui tting her ob Id at Rivers Roadway Express U.S was ecided after a trial on he merits as well wher ein the Court dismi ssed he claim based on the holding i Patterson supra and exonerated the Defend ant on the Title VII claims in a bench trial On ap peal the pla inti ff sought relief under th Civil Rights A ct amendments hich over ruled Patterson These Case Document Entered on FLSD Docket Page of cases where in a much different procedural posture than the present case and the aw that is applicable including the raise of the minimum cap to was in place well before this suit was filed Further well before this suit was filed efendant EPSTEIN entered i nto a deferred prosec ution agreement wherein he agreed to not contest the jurisdiction of this Court and liability for la ims under and Plaintiff has so al leged in of the Complaint Plaintiff did not all ege that Defendant EP STEIN made this ag reement wit a specification that his da mage wo uld be limited to a single claim of a min imum recovery under the former st atute whic was amended i Point U.S.C ermits a claim for each emporally distinct event a In ener al Any per son ho hil a mi nor was a ict im of a violatio of section or of this title SCS or and ho suffers personal injury as a result of such viol ation regar dless of wheth er the injur occurr ed while such person was a minor may sue in any appropriate nited States District Court and shal recover the actual damages such per son sustains a nd the cost of the suit including a reas ona ble attorney fee Any per son as described in th pre cedi ng sen tenc sha ll be eem ed to have su stained damages of no less than in alue The statute makes eference to a iolation and such vi olation both references being in the sing ular The statute does not say that if there are mu ltiple iolations he Plai ntif is limited to a single recovery for all Such a co nstruct ion would the pla in langua ge of the statute and ommon sense Plaint iff has alleged th at Defendant EPSTEIN iolated the statute on confirmed occa sions and up to addition al occasions Each date or each violatio is different There is no language in the statute that prohibits the Plaintiff from suing for each violati on and the dicta set forth in Tilton Pl ayboy Ent ertainment Group Inc 3d th Cir vaguel noting that the Distric Court aw arded the Plaint iff the Case Document Entered on FLSD Docket Page of minimum actual damag es Id at but there is no sugg estion in this Opi nion that the Plai ntif was so imi ted no efer ence to heth er lai ntif sought the relief being sought here or that the event she complained of occurred on multiple occa sions In fact it appear clear from the Opinion that the pro se Defendant that Plainti ff prevail ed against by default was sued for a singul ar viol ation of rec ord ing the Plai ntiff?s sexual ly orie nted performance at a Spring Break gather ing There i no indicati on that the conduct that was ecorded by he defaulted Defendant occur red on multipl occasions a here Point The Eleventh Circuit has foreclosed Defendant EPSTEIN argument that for a violation of U.S.C occur he must travel in interstate commerce moreover he has waived his right to contest the jurisdiction of the Court according to the allegations of the omplaint In Unit ed St ates Yost F.3d th Cir a defendant was convicted of two counts of attempting to induce pers ons he believed ere minors they wer government agents posing as minors to commit acts of prostitution nder U.S.C he so ught to void his convictions on appeal because he didn?t get to the meeting place Th Court rejected the ar gument holding We are not convinced by Yosts a gument that his failure to arr ive at the meeting la ce precludes a finding of a subst antial step Al though this i the first time we hav been confronted ith an attempt convicti on under U.S.C where travel is not invol ved two other circuits have exami ned the issue and determined travel is not necessary to sustain such a conv iction In United States Bailey F.3d 6th Cir the Sixth Circuit affirmed a convict ion under Secti on he the defenda nt sent e-mails proposing oral sex and attempted to set up eetings with min or fem ales albeit unsu cces sfu lly Simi larly in United States Thomas F.3d 10th Cir the Tenth Circuit affirmed a Section attempt convicti on despite a lac of evidence of tr avel The Tenth ircuit stated Thomas crossed the ine from harmless bante to inducement the moment he began making arr angements to meet the minor notwithstan ding the lack of evidence th at he travel ed to the supposed meeti ng place Id Viewing the Case Document Entered on FLSD Docket Page of Ms Kellen as been serv ed in accordanc with ew Yor law after seeking to avoid ser vice ith the assis tance of a doorman at her building She has thus far fail ed to re spon to he Co mpla int and lain tif int end to ove or a efa ult a gains her next week totality of Yosts ac tions we likewi se conclude ost crossed he line from mere talk to inducement In ad dition to his online chats with Lynn Yost called Lynn on the tel ephone posted pict ures of hi ge nitalia onli ne and made a rrang eme nts to meet her espite a lack of evidence of tr avel the totality of Yosts ac tions conv inces us that a reasonable jur could hav found Yost committed a substantial step Id at As a practical matter althoug not pled the manner in whic Defendant EPSTEI solicited Plaintiff to commit acts of prostit ution as alleged as by teleph one by use of one of his surro gate assi stants in this ase Defendant SA RAH KELLEN Plaintiff would rece ive a phone call on her cell phone with a exchange from the cell ph one of Defendant KELLEN who used a ell phone ith a New York ex change ar ea code In United States Drury F.3d th Cir the Court had to determine hether a murder for hir convicti on where he defendant made calls from a Ge orgia land line to a federal agent posing as a hit man on a cell phone that routed calls thr ough Jacksonv ille as sufficient to establ ish use of inter state commerce for ommission of the crime in uestion The Court affirmed the conviction even where there was no in tent to use an ins trumentality of interstate commerce since the Defendant believed he was cal ling a number in Georgi a In his case th facts wil demonstrate that for per cent of the solicitati ons for prostitution Plaintiff was called by Defendan KELLER who used her cell phone with a exchange a New York ex change and pre sumably set up the event after bei ng instruc ted by Defendant EPSTEIN when and at what time the Plaintiff should appear at his home for the Case Document Entered on FLSD Docket Page of Who ever using the mail or any facility or means of interstate or foreign co mmerce or wi thin the speci al maritime and territori al jurisdi ction of the United States nowingl persuades induces enti ces or coer ces any in dividual who has not attained the ag of years to engage i prostituti on or any exual acti vity for which any person can be harged ith a crimi nal offense or attempts to do so shall be fined under this title and imprisoned not less than years or fo life Emphasis added sexual services he paid the Plaintiff for efendant KELLER resi des and i bel ieved to ha ve resided in New York at al times rel evant to thi suit alth ough she as present at efendant EPSTEIN?s home on some of the occas ions when he Plainti ff appeare after being summoned there How ever si nce she used a cellular ph one that is cl early a faci lity of interstate commerce as contemp lated by U.S.C which encompasse conduct where any facility or means of in terstate commerc is used The Eleventh ircuit has recognized that the telephone system is clearly a facility of intersta te commerce United States Coving ton U.S App EXIS th Cir April Defendant EPS TEIN is alleged in the Complaint to have waived the right to contest the jurisdic tion of this Court for claims under he should th erefore be estopped from asserting the failure to al lege predic ate acts parti cularly when he has efused to answer any questions bas on his clai med right ag ainst self inc rimination owever if the Court i of the view hat thes pr edic ate fa cts must be al leg ed de spi te th ag reem ent then Pla inti ff requests eave to do so Point Plaintiff has pled suff icient fact to establi sh a conspira cy violat A civil consp iracy is an agre emen by tw or ore perso ns to do an unlawful act or a lawful act by unlawful ean the doing of an over act in fu rtheranc of the Case Document Entered on FLSD Docket Page of con spi racy resultin in damage to he Plainti ff Walters Blanke nship So 2d Fla th DCA Blatt Green Horn al So 2d Fla 3rd DCA To support her claim of a civil conspirac laintiff has pled the following Defendant EPSTEIN in agreement ith two persons he employed for this purpos HA LEY ROBSON and Defendan KELLEN conspired with thes other two and others to solicit oung women of the type Defendant EPSTEIN preferre blonde attr acti ve in app earance and ounger than years of age to provide sexual gratification for i by engaging in acts of prostit ution Defendants EPSTEIN and ELLEN entered i nto a criminal conspiracy to so licit ou ng women for a cts of prostitu tion includi ng the Plaintiff here in Palm Beach County From a bout June until on or abou ebr efendant EPSTEIN and KELLEN pers uaded induc ed or entic ed the laint iff to co me to De fendant EPSTEIN?s home and provide efendant EPSTEIN wi th massages which es calated into exual encounte rs betwee Defendant EPSTEIN and the Plaintiff desig ned to fulfill his unnatural sex ual desires for young women or ven younger gi rls who were minor These acts i ncluded Defendant PS TEIN?s req uest that he anted the encounter to be like a porn video Def end ant PST EIN wo uld cript lines for he Pl aint iff to sa including calling out his name and equesting that he perform a certain se xual act harder,?while he touched the Plaintif f?s vagina with a vibrator or with his fingers alternately he would mas turbate in the pr esence of the Plaint iff after demanding her to isrobe and walk in front of him in pr ovocativ sexual poses Defendant EPSTEIN ould pay the laintiff a fee of on eac occasion after he ejacul ated while masturbating in the presenc of the Plaintiff Plaintiff has pled the elem ents of a ivil conspir acy violate CONCLUSION Defendant?s Motion to Dismiss must be denied Plain tiff?s Complaint states a cause of action pursuan to The Colorado Ri ver doctrine for abs tention is not remotely applicable to this case which i grounded on a purely feder al statutory cause of action I is Case Document Entered on FLSD Docket Page of inappropriate for the Defendant to see to limit hi minimum statutory exposure on a Motion to Dismiss where ther is no factual ecord or legisla tive his tory to det ermine the retr oactivit of an enhanced damages provis ion to a cause of ac tion that ex isted at the ti me of the wrongful acts claims permi a Plaintiff to ass ert multiple claims for multiple violati ons that occur in tempor ally dis tinct ime frames no differently than any cla im whether based on tort or sta tutory la that enco mpasses mul ti ple events that occur at diff erent times Defendant EPSTEIN has aived the ight to cont est the i ssue of whet her his conduct impac ted intersta te commerce but Plaintif is prepared to allege if the Cou rt deems it nece ssary how his mployee and co conspirator Defendant KELLEN us ed an instrumentali ty of inters tate commerce her cell phone to solicit the Plaintif then a minor on behalf Defendan EPSTEI wh soli cited her se xual serv ices fo mo ney Fin ally Plai ntif has pled all necessary elements to estab lish a civil conspiracy to violat For these reasons Defendant EPSTEIN?s Moti on to Dismiss must be denied ho we ver if the Court determi nes otherwi se Plaintiff res pectfully equests leav to amend espectfully submitted BY Isidro Garcia ISIDRO GARCIA Florida ar No GARCIA LAW FIRM P.A Datura Str eet Suite West Palm Beach FL Telephone Telecopier e-mail isidrogar cia bellsouth net Case Document Entered on FLSD Docket Page of CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foreg oing was furnished VIA EC TR AN SMISSION to Robert Critton Es and Mic hael Pike Esq BURMAN CRITTON LUTTIER COLEMA Dr ive Suit West Palm Beach Florida this 22nd day of May BY Isidro Garcia ISIDR GARCI A Case Document Entered on FLSD Docket Page of
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