Case Document Entered on FLSD Docket Page of M.J Plaintiff vs JEFFREY EPSTEIN and SARAH KELLEN Defendant UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No REPLY IN SUPPORT OF RENEWED MOTION OF DEFENDANT JEFFREY EPSTEIN TO QUASH SERVICE OF PROCESS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR A HEARING TO PROVE FRAUD TO PROVE PROPER SERVICE TO OBTAIN SANCTIONS FOR EPSTEINS SUBMISSION OF A FRAUDULENT AFFIDAVIT TO OBTAIN A WARNING FORBIDDING FURTHER OBSTRUCTIONS IN THE CASES AND TO Case Document Entered on FLSD Docket Page of Case No assertions and scurrilous unfounded and irrelevant allegations designed solely to smear Mr Epstein and poison the well The narrow threshold issue is whether substitute service was made pursuant to Fed Civ and not whether discovery misconduct occurred in prior litigation as claimed by Plaintiff Plaintiffs injection of unfounded and unproven charges of obstruction of justice because two witnesses refused to appear for depositions pushes the envelope of Rule and should not be permitted Plaintiffs bluster cannot obscure the fact that Plaintiff has not carried her burden of demonstrating that service of process was proper under Fed Civ Contrary to Plaintiffs contention the issue is not whether has left a copy of her complaint and other documents with someone at the home which is all that Plaintiff alleges or whether Mr Epstein had actual notice D.E at but rather whether the suit papers were left with someone of suitable age and discretion who resides at East st Street New York See Fed Civ In view of the fact that Plaintiff has failed to show that Mark the alleged recipient of the suit papers was of suitable age and discretion and resided at East st Street New York Mr Epsteins motion to quash should be granted There is no need for the Court to hold an evidentiary hearing because Plaintiff has not made a prima facie showing that so-called Mark was someone of suitable age and discretion who resides at East st Street The affidavit of Thomas Marsigliano provides no description of Mark including Marks age other than to state that Mark was a white Male It provides no indication whatsoever that Mr Marsigliano even made any attempt to or did in fact determine the relationship of"Mark to Mr Epstein or East st Street or whether Mark resided at East st Street before allegedly delivering suit papers to Mark Accordingly there is no factual dispute Case Document Entered on FLSD Docket Page of Case No and no need for an evidentiary hearing particularly when the evidence indicates that no one resided on the premises on October Assuming arguendo that the Court were to conduct an evidentiary hearing there is certainly no need and indeed no valid reason for Mr Epstein who did not submit an affidavit to testify The Court should also deny Plaintiffs motion for Rule sanctions based upon the submission of an allegedly fraudulent affidavit by Mr Barnett Plaintiff has not offered any probative evidence of fraud relying solely on caustic rhetoric Moreover Plaintiff has violated the mandatory safe harbor requirements of Fed Civ which violations require denial of her motion In addition Plaintiff has not demonstrated that the Court should establish an expedited schedule and cannot point to any exigent circumstances Mr Epsteins financial standing does not eradicate due process or the requirements of Fed Civ as set forth in this Courts Order Requiring Counsel to Meet File Joint Scheduling Report and Joint Discovery Report D.E Finally the Court should enter an Order striking all portions of Plaintiffs response including the affidavit of Plaintiffs counsel Brad Edwards which allege argue and purport to show an obstruction of justice in prior litigation Such matters are patently irrelevant to the threshold issue of service of process in the instant case are intended solely to smear Mr Epstein and are unduly prejudicial II BACKGROUND Plaintiff claims that Mr Epstein was served on October Defendant filed a Motion to Quash Service of Process on October and a renewed motion to quash Case Document Entered on FLSD Docket Page of Case No on November D.E Plaintiff filed a response on November D.E The Proof of Service filed by Plaintiff D.E states that the process server left the summons at Mr Epsteins residence or usual place of abode with Mark a person of suitable age and discretion who resides there on Oct I and mailed a copy to the individuals last known address The Proof of Service does not identify Mark or state that he is a caretaker as alleged by Plaintiff Id Thomas Marsigliano the process server stated in an affidavit dated November that on October he knocked on the front door of East st Street New York a person named Mark opened the door and took the suit papers from him and Mark appeared to have authority to accept service D.E and Mr Marsigliano provided no description of"Mark in his affidavit other than to describe Mark as a white male Nor did Mr Marsigliano provide any indication whatsoever in his affidavit that Mark specifically advised Mr Marsigliano or that Mr Marsigliano specifically inquired of Mark as to any relationship between Mark and Mr Epstein or between Mark and East st Street According to Mr Marsiglianos affidavit based on a brief encounter with Mark without ever making any specific inquiries and on Mr Marsiglianos observations alone it was somehow obvious to Mr Marsigliano that Mark was familiar with Jeffrey Epstein had authority to answer the door of Mr Epsteins residence and accept service for Mr Epstein Most importantly Mr Marsigliano provided no indication whatsoever in his affidavit that he asked was told or even made any attempt to determine that Mark resided at East st Street New York New York Id Nor did Mr Marsigliano state the time of day that he allegedly delivered the papers to Mark Id Case Document Entered on FLSD Docket Page of Case No Plaintiff has not submitted any evidence that Mark resided at East Street New York New York or indeed that anyone else resided at that address on October Richard Barnett the property manager at East st Street did not reside and has never resided at East st Street Ex A On October no individual resided at that address Id Mr Epstein was not present at East st Street on October Id Plaintiff asserts that Epsteins counsel admit they have received proof of service from Mr Marsigliano attesting that he left M.J complaint with the caretaker at Epsteins residence or usual place of abode D.E at This assertion is false Defendant has never admitted that the proof of service states that Mr Marsigliano left the Summons and Complaint with the caretaker and more importantly Mr Marsigliano himself has never attested to leaving the papers with a caretaker Plaintiff asserts that Epstein concedes the materials were left at his vacation home Id This assertion is misleading Mr Barnetts affidavit states only that the suit papers were discovered in the mailbox at East st Street New York New York D.E Paragraphs of Plaintiffs Factual Background contain allegations regarding a Pattern of Obstruction in Other Similar Cases Against Him based largely on the affidavit of Brad Edwards Plaintiffs counsel submitted in the instant case See D.E r,r and D.E As set forth below these allegations as well as Mr Edwards affidavit in support of same a purported message to Mr Epstein and a Motion for an Order to Show Cause in another case D.E D.E and D.E respectively should all be stricken They pertain to witnesses and depositions in prior litigation are entirely irrelevant to the motion to quash and were filed for an improper purpose Case Document Entered on FLSD Docket Page of Case No I ARGUMENT A PLAINTIFF DID NOT EFFECT SUBSTITUTE SERVICE ON MR EPSTEIN PURSUANT TO FED CIV AND HAS NOT CARRIED HER BURDEN OF PROVING THAT THERE WAS VALID SERVICE Plaintiff has tacitly conceded that no service was made on Mr Epstein in New York pursuant to Florida or New York law Plaintiff has not carried her burden of establishing that service was effected on Mr Epstein pursuant to Fed Civ which permits substitute service only if the Summons and Complaint are left at the defendants dwelling or usual place of abode with someone of suitable age and discretion who resides there Emphasis added See e.g Trovarello McMonagle U.S Dist LEXIS at E.D Pa Nov Once the sufficiency of service of process is challenged the party on whose service was made bears the burden of establishing the validity of service Although Plaintiff claims that service was proper merely because the papers were left with an individual named Mark at Mr Epsteins house D.E at Plaintiff has not carried her burden of making a prima facie showing that the suit papers were left with someone of suitable age and discretion who resided at East st Street on October as clearly required by Rule a Significantly Plaintiffs response and the November affidavit of Mr Marsigliano are totally silent on this essential requirement Plaintiffs failure to submit any probative evidence that Mark or anyone else resided at East st Street on October alone requires that service of process be quashed This conclusion is further supported by the supplemental affidavit of Mr Barnett in which he stated that on October no one resided at Plaintiffhas not refuted Mr Epsteins argument that service was not effected pursuant to Florida or New York law Accordingly the only issue on the table as Plaintiff has conceded is whether substitute service was effected pursuant to Fed Civ See D.E Case Document Entered on FLSD Docket Page of Case No Mr Epsteins vacation home in New York Given the fact that no one resided at East st Street on the date on question service of process must be quashed See e.g Trovarello U.S Dist LEXIS at Numerous cases make clear that when service is made by leaving copies of the summons and complaint with some person of suitable age and discretion then residing therein the person with whom the papers are left must actually be a resident of defendants home and not merely present at the time of service Hardy Kaszycki Sons Contractors Inc Supp S.D.N.Y service on recipient under former Rule now Rule was insufficient where nothing indicated that recipient resided in defendants apartment Franklin America Inc Franklin Cast Prods Inc F.R.D E.D Mich Rule requires the recipient to live in the same place as the party to be served As in Trovallero in which service was quashed where the plaintiff presented no evidence that Maureen was a resident of Defendant McAleer home or an adult person in charge who could accept service of process on his behalf U.S Dist LEXIS at service of process in the instant case is likewise invalid because Plaintiff has not presented evidence of Marks age or his relationship to Mr Epstein or East st Street New York New York or that Mark was a resident of East st Street New York New York THERE IS NO NEED TO HOLD AN EVIDENTIARY HEARING Plaintiff argues at that an evidentiary hearing is necessary to resolve a factual dispute as to whether a representative of Mr Epstein was served and seeks permission to question Mr Marsigliano Mr Barnett and Mr Epstein at the hearing Defendant submits that no evidentiary hearing is necessary because as previously demonstrated Plaintiff has not made a prima facie showing that Mr Marsigliano served a person of suitable age and discretion who Case Document Entered on FLSD Docket Page of Case No resided at East Street New York Absent a factual dispute there is no need for an evidentiary hearing Should the Court conclude that an evidentiary hearing is required then there is certainly no reason to require Mr Epstein to testify at such a hearing Mr Epstein has not submitted an affidavit in this case and Plaintiff has not shown any legitimate reason for him to testify at a hearing on service of process Plaintiffs baseless contention D.E at that Mr Epstein should be permitted to testify to his involvement in orchestrating a false statement by Mr Barnett demonstrates the outrageous lengths to which Plaintiff will go to poison the well and attempt to deflect the Courts attention from the substantive service issues Unsubstantiated allegations regarding witnesses or discovery conduct in prior proceedings not involving this Plaintiff are patently irrelevant to the issues presented here Moreover evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith Fed Evid Plaintiff should not be permitted to examine Mr Epstein at an evidentiary hearing in order to inject collateral and highly impertinent matters ACTUAL NOTICE DOES NOT OBVIATE COMPLIANCE WITH FED CIV Although Plaintiff contends that Rule should be liberally construed when there has been actual notice D.E at Plaintiff cites no case which holds that service is deemed proper under Rule a absent proof that the suit papers were delivered to an individual of suitable age and discretion residing at the defendants house as explicitly required by the rule This is not a matter of mere technical non-compliance Actual notice cannot be used to override the basic requirements of Rule As the Eleventh Circuit has noted actual notice of a suit does not dispose of the requirements of service of process Jackson Warden FCC Coleman-USP Case Document Entered on FLSD Docket Page of Case No Fed Appx 11th Cir See also Precision Etchings Findings LGP Gem F.2d 1st Cir The federal courts have made it abundantly clear that actual notice itself without more is insufficient to satisfy the requirements of Fed Civ now NO BASIS FOR IMPOSING SANCTIONS ON MR EPSTEIN Citing Fed Civ Plaintiff seeks to impose sanctions on Mr Epstein on the ground that he is responsible for the filing of a knowingly false affidavit by Mr Barnett Plaintiffs baseless motion for sanctions is improper if not itself sanctionable Plaintiff has not offered even a scintilla of evidence that Mr Barnett submitted a knowingly false affidavit and has levied such scurrilous charges merely to harass Mr Epstein and obfuscate the issues In addition Plaintiff has violated Fed Civ by not filing a separate motion for sanctions after giving the Defendant twenty-one days in which to respond to the allegations Non-compliance with the mandatory safe harbor provisions of Rule mandates denial of the motion See e.g Olmsted Defosset Supp 2d M.D Fla Accordingly Plaintiffs motion for sanctions should be stricken or denied NO EXPEDITED SCHEDULE IS NEEDED Plaintiff has offered no valid reason for expediting the proceedings in this case There are no exigent circumstances which justify an accelerated schedule The Court should address scheduling matters after review of the parties Joint Scheduling Report Case Document Entered on FLSD Docket Page of Case No IV THE COURT SHOULD STRIKE PARAGRAPHS OF PLAINTIFFS RESPONSE AND EXHIBITS AND Case Document Entered on FLSD Docket Page of Case No Respectfully submitted s/Lilly Ann Sanchez Lilly Ann Sanchez Fla Bar No las fowler-white.com Christopher Knight Fla Bar No cknight fowler-white.com Helaine Goodner Fla Bar No hgoodner fowler-white.com FOWLER WHITE Case Document Entered on FLSD Docket Page of Case No SERVICE LIST M.J Epstein Case No United States District Court Southern District of Florida Bradley Edwards brad pathtojustice.com Farmer Jaffe Weissing Edwards Fistos Lehrman PL North Andrews Avenue Suite Fort Lauderdale Florida Telephone Facsimile Attorneys for PlaintiffM.J Served via CM/ECF
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