UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO 08-CV-80119-MARRA/JOHNSON JANE DOE NO Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant PLAINTIFF 2S MEMORANDUM OF LAW IN RESPONSE TO DEFENDANT 2S MOTION FOR STAY 2395Plaintiff Jane Doe No by and thr ough her undersigned counsel subm9its this Mem8orandum8 of Law in Response to Motion for Stay as follows INTRODUCTION 2810Defendant Jeffrey Epstein 2s Motion to Stay this action is based on the i-6n-3correct prem9ise that there are crim9inal actions pending against him9 in Palm9 Beach Circuit Court State of Florida Jeffrey E6p6s5t3ein Case No CF AXXMB Fifteenth Judicial Circuit Palm8 Beach County and in the Southern District of Florida In re Grand Jury No FGJ W9PB S.D Fla The Motion to Stay as to the state court crim9in al action was rendered m8oot on June when Epstein entered a plea of guilty to viola tions of Florida Statute felony solicitation of prostitution and procurem9ent of m9i-1nors to ngage in prostitution in the state crim)9inal action See Defendant 2s Notice Concerning Motion to Stay dated July Jeffrey Epstein now an adm9itted sex of4f4ender was sentenced to a term9 of4 im9prisonm9ent f4o1llowed by com9m9unity control and sex offender registration to the federal prosecution Defendant 2s m8i-2stitled 224Notice of Continued Pendency of Herman Mermelstein A w.hermanlaw.com Case Document Entered on FLSD Docket Page of Crim9inal Action which has now been unsealed m9akes clear that there is in fact no crim9inal federal action pending This Notice discloses a onfidential Agreem9ent betw een the U.S Attorney and Defendant the term8s of which were triggere when Epstein began serving his state im9posed crim9inal sentence Under the Agreem9ent accordi ng to the Notice the U.S Attorney 223agreed to suspend its grand jury investigation while 223retaining the righ to reactivate the grand jury and indict Mr Epstein should he breach any part of the Agreem9ent during its term9 which runs for m8onths beginning on the date Mr Epstein began serving his sentence in the Florida Crim9inal Action The term9s of this Agreem ent are also described in the notice letter to the victim9 P3l-1aintif4f4,1 a copy which is attached hereto as Exhibit Accordingly as represented in Defendant 2s own filing Mr Epstein is not under indictm9ent and the grand jury is not active in his case There is sim9p1ly no pending crim9inal action a necessary prerequisite for a stay under U.S.C 2815(Additionally the stay provision of U.S.C is lim)5ited to circum10stances in w4h2ich the plaintiff is a person who is under the age of The Statute is therefore inapplicable in that Plaintiff is not a m8i-2nor and was not a m8i-2nor when she f4iled this lawsuit The Motion is also procedurally defective because i Defendant faile to com8p1ly with the Local Rules of the United States District Court for the outhern District of Florida in that Defendant 2s counsel neither conferred nor attem9p1ted to confer with counsel for th Plaintiff as to the relief request prior to filing the Motion to Stay and ii in light of changed circum9stances after the fili ng of the Motion to Stay the Motion fails to inform8 the Plaintiff or the Court of the grounds for the relief sought the foregoing reasons Defendant 2s Motion to Stay m9u1st be denied in its entirety THE DEFENDANT HAS NOT DEMONSTRATED THAT U.S.C IS APPLICABLE AND A STAY MANDATED Herman Mermelstein A w.hermanlaw.com Case Document Entered on FLSD Docket Page of the m9ovant it is the Defendant 2s burden to dem9onstrate that the requirem9ents for a stay have been m8e-1t He has not m8e-1t this burden U.S.C states as follows Stay of civil action If at any tim9e that a cause of action for recovery of com9p1ensation for dam9age or injury to the person of4 a child exists a criminal action is pending w8h2ich arises out of the same occurrence and in w8h2ich the child is the victim the civil action shall be stayed until the end of4 all phases of4 the crim9inal action and any m9ention of the civil ac tion during the crim9inal proceeding is prohibited As used in this subsection a crim9inal action is pending until its final adjudication in the trial court em9phasis added threshold inquiry in determ9ining whethe to invoke the stay provision of U.S.C is whether the plaintiff in a civil action is also the victim9 of a 223crim9inal action pending which arises out of the sam9e occurrence and in which the child is the victim9 Em9phasis supplied Given Jef)4f4r-1ey Epstein 2s plea of4 guilty to the crim9inal charges in the state case and the Agreem9ent entered into with the U.S Attorney hi argum9ent that a stay of this lawsuit should be granted because of pending crim9inal charges appears at this point to be specious Nonetheless Defendant Epstein represents to this Court in hi 223Notice Concerning Motion to Stay dated July that 223the federal crim9inal proceeding rem9ains pending No further explanation is provided The argum8ent supporting this asse rtion is unknown to Plaintif4f4 There is no indication in the statutory language or elsewhere that U.S.C can be applicable in a situation such as here where there is an agreem9ent concerning federal crim9es but there has been no indictm9ent The notice letter attached hereto as Exhibit further sets forth one of the conditions im9posed by Mr Epstein 2s Agreem9ent with the Attorney as follows 223Any person including The developm9ents relating to the Defendant 2s plea deal arose after the Defendant filed his Motion to Stay As a result the Motion does not explain why a stay is justifi ed under the present circum9stances Plaintiff is at a disadvantage in iling this Mem9o1randum9 in Response and is left to guess as the present grounds for the Motion For this reason alone the Motion should be denied Herman Mermelstein A w.hermanlaw.com Case Document Entered on FLSD Docket Page of this plaintiff who while a m8i-2nor was a victim8 of a violation of an offense enum8erated in Title United States Code Section will have the sa m9e rights to proceed under Section as she would have had if Mr Epstein had been tried fede rally and convicted of an enum8erated offense Thus not only is a necessary prerequisite for a st atutory stay m9i-1ssing in that no crim9inal case is pending but a stay under U.S.C would be inconsistent with Mr Epstein 2s Agreem9ent with the U.S Attorney which contem8plates civ il claim9s by victim9s pursuant to f4ederal law Defendant Epstein apparently contends that a st ay should nonetheless apply for the next m8onths preventing f4o1r this extended period the civil litigation of2 thes3e3 to4 s3e3e3 if7 E5p4s3t2e3i2n4 c3o4m12p4lie3s3 with his Agreem8ent Needless to say this would be absurd It cannot be seriously argued in the circum9stances of this case that a stay under U.S.C is m)8a-1ndated because there is a 223pending federal crim9inal action U.S.C DOES NOT AUTHORIZ)11E A STAY OF A CIVIL LAWSUIT FILED BY AN ADULT PLAINTIFF a crim9inal case pending which there is not U.S.C would not apply to the claim9 of a child victim9 who is now an a dult This Statute applies in situations in which a child who has been the victim9 of sexual abuse is the plaintif4f4 in a civil lawsuit at the sam9e tim9e that the child is a victim9 in a crim9inal proceeding arisi ng out of the sam8e-1 occu5rren ce.2 T2h2at-1 is1 th2e cas1e here The Plaintiff is an adult and was an adult at the tim9e she f4iled this civil lawsuit Def4endant m8i-2sinterprets U.S.C to uggest that the Statute also applies in instances where an adult plaintiff in the civil lawsuit was a victim9 of se xual abuse during childhood A careful reading of the definitions section of U.S.C reveals th at Defendant 2s interpretation is incorrect See U.S.C a defining 223child as person who is under the age of U.S.C states in relevant part as follows Stay of civil action If at any time that a cause of action for recovery of Herman Mermelstein A w.hermanlaw.com Case Document Entered on FLSD Docket Page of compensation for damage or injury to the person of a child exists a crim9 inal action is pending which arises out of the sa m9 occurrence and in which the child is the victim the civil action shall be stayed until the end of4 all phases of4 the crim9 inal action em9 phasis added U.S.C defines as a 223child as person who is under the age of Thus the term 223child is lim8 ited for purposes of U.S.C to a person who is currently under the age of h1 ile the statute could have been written to say person who is under the age of or was under the age of at the tim9 of the abuse it does not Yet this is the precise interpretation suggested by the Defendant The plaintiff 2s interpretation of U.S.C is not only consistent with the plain language of the statute but also with the polic ies underlying the stay provision The statute is designed to protect children who are involved in le gal proceedings arising from physical sexual or m8 ntal abuse For instance U.S.C pr ovides protections for persons under the age of including alternatives to live in-court testim9 ony com9 p1 etency exam9 inations psychological exam9 inations privacy issues filing under seal cl osing the courtroom9 the handling of videotaped testim8 ony adult attendants speedy trials the use of4 guardians ad litem9 and testim9 onial aids Each of4 these protections is only im9 plicated when the victim9 is under the age of See U.S.C a In the context of a civil lawsuit a child sim9 ilarly needs protection from9 the possibility of concurrent proceedings involving deposition or trial testim9 ony psychological exam9 in6 atio6 n6 s5 an6 d6 com9 p1 etency exam9 inations Moreover the use of a stay of a civil lawsuit involving a child-plaintiff m9 ay be particularly warranted in circum9 stances w8 ere the child m9 ay not have had m9 ade the decision to f4 ile the lawsuit in the f4 rst instance Thus the law protects the children f4 om9 m9 u1 ltiple concurrent proceedings These concerns do not exist to the sam9 degree when a com9 p1 etent adult such as the Plaintiff elects to file suit on her own behalf Ye the Defendant seeks to carve out an exception Herman Mermelstein A w.hermanlaw.com Case Document Entered on FLSD Docket Page of where none exists by arguing that the 223Stay of Ci vil Action provision in subsection m)9u1st be applied to victim9s who are or older who were under the age of at the tim9e of their abuse This argum9ent is unsupported by the statute or its underlying policies The unpublished trial court decisions cited by Defendant of Doe Francis W9L1 N.D Fla Apr Francis I and Doe Francis W9L1 N.D Fla Apr Francis II are readily distinguishable The Plaintiffs in Francis I and Francis II 223offered no legal authority or evidence to support their argum9ent that the stay should be lifted Francis II at By contrast in this case the Plain tif4f4 has cited the def4i-1nition of4 223child f4ound in U.S.C a The Francis cases also involved seven plaintiffs three of whom6 were victim11s in the crim9inal case That is not the case here were th only plaintif4f4 in this laws uit is not a victim9 in a pending crim9inal case Additionally the stay in the Francis cases was im8posed before the p6l3a4i3n6tif9f9s5 reached the age of m9ajority Here the civil la wsuit was not even filed until after the plaintiff reached the age of m9ajority DEFENDANT 2S MOTION SHOULD BE DENIED IN THAT DEFENDANT DID NOT CONFER WITH PLAINTIFF 2S COUNSEL PRIOR TO FILING HI MOTION AND THE MOTION FAILS TO INFORM PLAINTIFF OR THE COURT OF THE GROUNDS FOR RELIEF IN LIGHT OF CHANGED CIRCUMSTANCES Defendant 2s Motion should be denied in that Defendant failed to com8p1ly with the Local Rules of4 the United States District Court f4o1r the outhern District of Florida in that Defendant 2s counsel neither conferred nor attem9p1ted to confer with counsel for the Plaintiff as to the relief request prior to f4iling the Motion to S7e5e S.D Fla Notably Defendant 2s Motion also contains no certification as to any such attem9p1t as required by the Local Rules See id The Local-2 Rul-2e-1s provi-2de t-2hat-2 t-2he 223fai-2l-2ure t-2o compl-2y requi-3rement-3s of this rule m9ay be cause for the court to grant or deny the m9o1tion and im9pos on counsel an appropriate sanction which m9ay Herman Mermelstein A w.hermanlaw.com Case Document Entered on FLSD Docket Page of include an order to pay the am9ount of the reasona ble expenses incurred because of the violation including a reasonable attorney 2s fee Id Finally when the circum9stances m9aterially changed after the filing of the Motion it was incum9b1ent upon the Defendant to either withdraw the Motion or at least am9end it to explain the grounds for a stay in light of the plea deal Defenda nt has not done so to the prejudice of4 P2l-1aintif4f4 in preparing this Mem7o-1randum7 in respons For this reason alone the Motion to Stay should be denied CONCLUSION 2760Based on the foregoing Plaintiff requests that this Court deny Defendant 2s Motion to Stay pursuant to Title United States Code Section in its entirety award attorney 2s fees to for-4 De-3fe-3nda-3nt-4 with Southern District of Florida Local Rule and all other relief this Court deem9s just and appropriate Dated July 2750Respectfully subm8itted By Jeffrey Herm8an Jeffrey Herm8an FL Bar No jherm9an herm9anlaw.com Stuart Merm8elstein FL Bar No ssm8 herm8a-1nlaw.com Adam8 Horowitz FL Bar No ahorowitz herm8a-1nlaw.com HERMAN MERMELSTEIN P.A Attorneys for Plaintiffs Jane Doe Biscayne Blvd Suite Miam9i Florida Tel Fax CERTIFICATE OF SERVICE I hereby certify that on July I electroni cally filed the foregoing docum9ent with the Herman Mermelstein A w.hermanlaw.com Case Document Entered on FLSD Docket Page of Clerk of the Court using CM/ECF6 I also certify that the foregoing docum9ent is being served this day to all parties on the attached Service List in the m9anner specified either via transm9ission of Notices of Fi-5l-5i-5ng generated by CM/ECF or in so m9e other authorized m9anner for those parties who are not authorized to receive electr onically Notices of Electronic Filing Jef4f4r-1ey Herm9an Herman Mermelstein A w.hermanlaw.com Case Document Entered on FLSD Docket Page of SERVICE LIST DOE vs JEFFREY EPSTEIN CASE NO 08-CV-80119-MARRA/JOHNSON United States District Court 2Southern District of Florida Jack Alan Goldberger jagesq bellsouth.net Michael Tein tein lewistein.com Jeffrey Herm8an Herman Mermelstein A w.hermanlaw.com Case Document Entered on FLSD Docket Page of
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