UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE NO 2750CASE NO 08-CV-80119-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant JANE DOE NO 2750CASE NO 08-CV-80232-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant JANE DOE NO 2750CASE NO 08-CV-80380-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant JANE DOE NO 2750CASE NO 08-CV-80381-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant Case Document Entered on FLSD Docket Page of JANE DOE NO 2750CASE NO 08-CV-80994-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant JANE DOE NO 2750CASE NO 80993-CIV-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant PLAINTIFFS MEMORANDUM IN OPPOSITION TO MOTION TO STAY AND OR CONTINUE ACTION 2794Plaintiffs JANE DOES by and through unde rsigned counsel file this Mem9o1randum9 in Opposition to Stay and or Continue Action as follows I Introduction m8oving for stay Defendant has the burden of dem8onstrating that due to a parallel crim9inal proceeding if he exercises his right against self incrim9ination he will certainly lose on sum9m9ary judgm9ent unless a stay is granted Defendant has failed to satisfy this burden There is no pending m9o1tion for sum9m9ary judgm9ent There is also no crim9inal proceeding at this tim9e arising from9 Epstein 2s acts against the Plaintiffs or other victim9s Indeed whether such a crim9inal proceeding is ever com9m9enced is entirely within the Defendant 2s control by com9p1lying with the term9s of his U.S De-4fe-4nda-4nt-5 upon an am10orphous Case Document Entered on FLSD Docket Page of possible breach of his Non-Prosecution Agreem9ent with the U.S Atto3rn3ey3,3 w6h3ich3 d3o3e2s3 n3o3t1 g3i1v3e2 ris3e2 to the 223special circum9stances necessary to warrant a stay Finally even if there were gr ounds for a stay it would not be appropriate in these cases ecause Plaintiffs would be severely prejudiced by the delay occasioned by a stay II Argument A 1780Defendant Has Not Demonstrated that He Faces a Certain Loss on Summary Judgment If a Stay Is Not Granted Constitution doe not require a stay of4 civil proceedings pending the outcom9e of4 crim9inal proceedings involving a com8m8on defendant Shell Oil Co Altin a Associates Inc F.Supp M.D Fla A stay pending resolution of related crim9inal proceedings is warranted only when the defendant dem9onstrates that 221special circum9stances so require in the 221interests of justice United States Lot Fox Grove F.3d 11th Cir the Eleventh Circuit the 223special circ um9stances which m9ay support a stay are lim9ited The fact that the Defendant m9ay 223risk a non-crim9in al disadvantage by rem9aining silent for fear of self incrim9ination in a parallel crim9inal proceedi ng does not rise to the level of an unconstitutional infringem8e-1nt Shell Oil F.Supp at Accordingly the De fendant 2s right to silence is not a basis to stay the civil case pendi ng resolution of a crim9inal action Id There is one exception applicable where a stay would be necessary to prevent an unconstitutional inf4r-1ingem9ent of4 the Defendant Epstein filed an identi cal Motion to Stay in the case Jane Doe Epstein case no CIV MARRA/JOHNSON Plaintif6f6s concur in the argum9ents m9ade by Jane Doe 2s counsel in that case in opposition to Defendant 2s Moti on Case no 08-CIV DE The sam)8e-1 reasoning and argum9ents apply in the instant cases Plaintiffs in this Mem9o1randum9 will attem9p1t to st-6r-6eam9 line and lim9it its argum9ents to avoid unnecessary repetition and duplication with the response in Jane Doe r-6e-5ga-5rd The Defendant 2s silence by invoki ng the Fifth Am8endm8ent does not prohibit adverse inferences against him9 in the civil case Shell Oil F.Supp at Case Document Entered on FLSD Docket Page of defendant 2s right against self incrim9ination law in the Eleventh Circuit requires consideration of whether as a result of invoking th privilege the def4endant f4aces certain loss of4 the civil proceeding on sum9m9ary judgm9ent if the civil proceeding were to continue In re Financial Federation Title Trust Inc B.R Bankr S.D Fla citing United States Lot F.3d at accord Shell Oil F.Supp at noting that there is a 223recognized Fi-4ft-4h Ame-3ndme-3n-1t-4 i-7s violated when a person who is a defendant in both a civil and crim9inal case is forced to hoose between waiving his privilege against self incrim9ination or losing the civil case in sum9m9ary proceedings cases relied upon by Defendant are cons istent with these authorities In Ventura Brosky W9L1 S.D Fla the Court stated the rule that a stay is warranted to avoid a situation 223where a defendant in both crim9inal and civil proceedings m9u1st choose between whether to waive his privilege against self4-incrim9i nation or to lose the civil case in sum9m9ary or default judgm9ent proceedings Id at Moreover the stay in Ventura was granted on m8otion of the defendant Miam9i-Dade County Police Depart m9ent because it would be prejudiced by its codefendant a form9er police officer asserting th Fifth Am8endm8ent and refusing to answer response to the civil Com9p1laint and any discovery directed at him9 in the case Id Such concerns involving prejudice to a codefendant are not present here In Securities and Exchange Com8m8 Rehtorik F.Supp S.D Fla another case relied upon by Defen dant the Court denied a stay of the case and m9ade clear in its holding that the defendant had not dem9onstrated that it would be subject to 223autom9atic liability on a m9o1tion for sum9m9ary judgm9ent The Court in Financial Federation Title Trust noted that the standard in the Eleventh Circuit is 223m9ore narrow and less subjective than in other Circuits where a m9u1lti-f4actor test is used Id at Case Document Entered on FLSD Docket Page of The defendant-2s can exer-1ci-2se Fi-6ft-6h Am9endm9ent rights in the face of the S.E.C 2s sum8m8a-1ry judgm8ent m9o1tion by not pres enting evidence which would im9plicate them9 in th alleged securities fraud Though an adverse inference m8a-1y be drawn due to their silence the S.E.C m9u1st still carry its burden of4 proving f4r-1aud com9m9itted by the defendants their silence alone will not give rise to autom7a-2tic liability 49As such the defendants would not be com8p1elled to speak To speak or not to speak becom9es in such a case a question of strategy rather than one of unconstitutional com9pulsion Id at 2810Accordingly the Defendant 2s Motion to Stay is at best prem9ature Defendant Epstein f6a2ils to dem9onstrate that he is certain to lose on sum9m9a ry judgm7ent if7 he exerci ses his constitutional right against self-incrim9i-1nation Indeed there is no sum8m8a-1ry judgm8ent m8o1tion pending Defendant 2s Motion to Stay m9u1st accordingly be denied 1835This Court Has Previously Made It Clear That a Stay is Not Warranted and Circumstances Have Not Changed 2710Defendant previously m8oved for a m8a-1ndatory stay pursuant to U.S.C This Court denied that Motion on the grounds that th ere was no crim9inal action pending a requirem9ent for a stay under DE The Court in its Opinion also stated that a discretionary stay was not warranted The Court also does not believe a disc retionary stay is warranted 4h1e Court sees no reason to delay this litigation f4o1r the next thirty three m8onths After all Defendant is in control of his own destiny it is up to him9 and him9 alone wh ether the plea agreem9ent reached with the State of Florida is breached If Defendant does not breach the agreem9ent then he should have no concerns regarding his Fifth Am9endm9ent right against self-incrim9i nation The fact that the U.S Attorney or other law enforcem9ent officials m)9ay object to som9e discovery in these civil cases is not in an of itself a reason to stay the civil action Any such issues shall be resolved as they arise in th course of this litigation Order Denying Motion to Stay In again seek ing a stay Defendant seized on the last sentence Case Document Entered on FLSD Docket Page of quoted above and takes it out of context in contending that the tim9e is now4 ripe f5o2r a stay T2h2e C4ourt stated that issues arising in the event th6at th6e U8 Attorney or other law enforcem9ent officials object to discovery can be resolved during the course of the litigation DE The Court was not inviting the Defendant to file another m9o1tion for stay later in the course of discovery In any event there are no changed circum8stances which would wa rrant a different analysis and conclusion from9 that reached by the Court last August Defendant Cannot Meet His Burden of Demonstrating Grounds for a Stay on the Basis of Vague Assertions of the Position of the USAO 2800There is no crim9inal prosecution pending for the acts of Epstein against any of the Plaintiffs in these civil cases Epstein 2s Motion thus fails at the outset because there is no parallel crim9inal action In any event the Defendant vaguely asse rts without supporting docum9entation that the 223USAO has already attem9p1ted to claim9 violations of the Non-Prosecution Agreem8ent Motion to Stay DE The Defendant subm)8its the Affi davit of4 his crim9inal attorney J5a5c5k6 who asserts that 223the USAO has taken the position on a num9ber of occasions that it m9i-1ght consider various actions by Epstein to be a breach of th Non-Prosecution Agreem8ent Nowhere does the Motion or this supporting Affidavit assert that the USAO has declared a breach of the Non Prosecution Agreem9ent nor does it indicate that the issue of breach has been raised by either party in any court It is therefore difficult to unders tand how this can be grounds for a stay Defendant does nothing m8ore than speculate on th intentions of4 the USAO The Motion to Stay is theref4ore at best prem9ature Plaintiffs Would Be Prejudiced by a Stay The cases discussing the stay issues are prem9ised on a pending crim9inal action parallel to the civil proceeding See e.g Rehtorik F.Supp at United States Lot F.3d at quoting United States Little Al F.2d 5th Cir Case Document Entered on FLSD Docket Page of 2815Because Defendant has failed to set forth circum9stances that would support a stay there is no need to proceed further Nonetheless Plaintiffs not that they w4ill be severely prejudiced if5 a stay is granted First the stay requested is a lengthy one to the end of Such a delay is sim8p1ly unfair to the Plaintiffs who are entitled to civil rem9edi es for the wrongs that were com9m9itted by Epstein 2630Additionally the delay in discovery will be prejudicial to Plaintif4f4s Investigation and discovery will becom9e m9o1re dif4f4i-1cult with the passage of3 tim8e The bulk of3 the alle4g5a4tio5n5s5 o5c4c4u5r3r3e4d5 in when the Plaintiffs were m8i-2nors Plai ntiffs should not have to wait to engage in discovery Finally the delay occasioned by a stay would prejudice these Plaintiffs vis other victim9s of Epstein who brought their claim9s in state court and would not be stayed particularly if these other victim9s recover punitive dam9age judgm9ents against Epstein before Plaintiffs have even had an opportunity to litigate their claim9s Conclusion 2670Based on the foregoing Plaintiffs respectfully request that Defendant 2s Motions to Stay and/or Continue Action be denied in their entirety Dated April 2750Respectfully subm8itted By Stuart Merm9elstein Stuart Merm8elstein FL Bar No ssm9 sexabuseattorney.com Adam8 Horowitz FL Bar No ahorowitz sexabuseattorney.com MERMELSTEIN HOROW8ITZ P.A Attorneys for Plaintiffs Biscayne Blvd Suite Miam9i Florida Tel Fax Case Document Entered on FLSD Docket Page of CERTIFICATE OF SERVICE he-4r-5e-4by on Apr-5il I electroni cally filed the foregoing docum9ent with the Clerk of the Court using CM/ECF 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 Electronic Filing generated by CM/ECF or in som9e other authorized m9anner for those parties who are not authorized to receive electronically Notices of Elec tronic Filing Stuart Merm9elstein Case Document Entered on FLSD Docket Page of SERVICE LIST DOE vs JEFFREY EPSTEIN United States District Court 2Southern District of Florida Jack Alan Goldberger Esq jgoldberger agwpa.com Robert Critton Esq rcritton bclclaw.com Stuart Merm9elstein Case Document Entered on FLSD Docket Page of
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