Case Document Entered on FLSD Docket Page of CASE NO 08-80381-CIV-MARRA/JOHNSON ALLEGATIONS IN PLAINTIFFS COMPLAINT This action arises out of the alleged assault of the plaintiff According to the allegations in her complaint the plaintiff went to Mr Epsteins house to give him a massage for monetary compensation Compl where Mr Epstein allegedly assaulted her in violation of Chapter of the Florida Statutes Compl The plaintiff tries to assert a claim for sexual assault Compl This theory of liability however cannot be supported by the allegations in the complaint In fact even if everything in the complaint were true recovery against Jeffrey Epstein for Count I under any formulation is impossible under Florida law Accordingly this count must be dismissed 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 Case Document Entered on FLSD Docket Page of CASE NO 08-80381-CIV-MARRA/JOHNSON 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 unwan-anted 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 Compl 8if 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 can-ies 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 Chapter Florida Statutes is entitled Lewdness Indecent Exposure Case Document Entered on FLSD Docket Page of CASE NO 08-80381-CIV-MARRA/JOHNSON 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 complaint and const1ue 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 injury 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 affi1mative act-a threat to use force or the actual exertion of force Sullivan Atl 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 only thing that Mr Epstein is alleged to have said to Jane Doe is to remove her clothes and give him a Case Document Entered on FLSD Docket Page of CASE NO 08-80381-CIV-MARRA/JOHNSON massage Compl These allegations fall far short of an offer of corporal injury by force There are no allegations that Jane Doe was placed in any fear of imminent peril Gatto Publix Supermarket Inc So 2d Fla 3d DCA holding that where there was no evidence to show that Gatto was placed in fear of imminent peril there was no assault Thus there was no assault 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 Conclusion For the reasons set forth herein Defendant Jeffrey Epstein respectfully requests that Count I of the plaintiffs complaint be dismissed 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 Case Document Entered on FLSD Docket Page of CASE NO 08-80381-CIV-MARRA/JOHNSON 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 By Robert Critton Esq Fla Bar No rcritton bclclaw.com Michael Pike Esq Fla Bar No mpike bclclaw.com Attorneys for Defendant Jeffrey Epstein Case Document Entered on FLSD Docket Page of CASE NO 08-80381-CIV-MARRA/JOHNSON 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 via transmission of Notices of Electronic Filing generated by CM/ECF Isl Michael Tein Michael Tein Jeffrey Herman Esq Stuart Mermelstein Esq Adam Horowitz Esq Herman Mermelstein P.A Biscayne Blvd Suite Miami Florida Fax Service List
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