Herman Mermelstein A w.hermanlaw.com UNITED STATES DISTRICT COURT 170SOUTHERN DISTRICT OF FLORIDA CASE NO 08-80381-CIV-MARRA/JOHNSON JANE DOE NO Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant PLAINTIFF?S MEMORANDUM IN RESPONSE TO DEFENDANT?S MOTION TO DISMISS 2785Plaintiff Jane Doe No Jane or ane Doe by and through her undersigned counsel files this Mem8.4o0.6randum8.4 in Response to Defendant?s Motion to Dism8.4iss and states as follows 2065Defendant Jeffrey Epstein is alleged to ha ve sexually abused Ja ne Doe when she was a The Com8.7p0.9laint is in tw Counts Count I is labeled Sexual Assault and alleges an intentional tort based on the actions of Jeffrey Ep stein Count II alleges the tort of intentional infliction of em8.4otional distress based on the factual allegations Defendant Epstein has m8.5oved to dism8.5iss only Count I of the Com8.5p0.7laint contendi ng that Plaintiff has faile to state a claim9.1.2 Sim8.8u1ltaneously herewith Plaintif4f4 intends to f4ile an Amended Com8.9p1.1laint which substantially revises Count I and m8.4oots the Defendant?s Motion to Dism8.4iss also adds as Count I a federal claim8.6 against Defendant Epstein under U.S.C and Under Fed.R.Civ.P a a party am8.6end the pleading once as a of course before being served with a respons ive pleading has not to date f4.1iled a responsive pleading in this case within the m8.7eaning of Fed.R.Civ.P a It is established in the courts of the Eleventh Circuit that a m8.7o0.9tion to dism8.7iss is not a responsive pleading and does not af4f4ect a plaintif4f4?-1s right to am8.8end the pleading once as a of4 course Board of4 Regents F.3d 11th Cir Case Document Entered on FLSD Docket Page of Herman Mermelstein A w.hermanlaw.com any event the Com9.1p1.3laint suf4.3f4.3i-0.9ciently a lleged a claim8.8 for sexual assault and battery 75The gravam8.7en of the claim8.7s0.1 in Count I is set forth in paragraph of the Com8.5p0.7laint Epstein tortiously assaulted Jane Doe sexually Epstein acts were intentional unlawful offensive and harm8.5ful I does not purport to be br ought under the crim9inal statutes W10.3h1.4ether a Com8.9p1.1laint states a claim8.9 relief4.1 is not based on labels or conclusions rather it is determ9ined by the factual allegations which m8.6ust be enough to raise a right to relief5.1 above the speculative level 95Bell Atlantic Corp Twom8.3bley Ct Here the factual allegations establish an intentional tort claim9 sexual assault and battery Paul Holbrook So.2d Fla 5th DCA a battery consists of the infliction of a harm8.1ful or offensive contact upon another with the intent to cause such cont act or the apprehension that such contact is Scelta Delicatessen Support Services Inc F.Supp 2d M.D Fla allegation that def6.7e2.5ndant atte to put his hands dow3.1n dress and that there an actual and intentional touching sufficient to state a claim8.7 for battery Hogan Tavzel So.2d Fla 5th DCA tortfeasor be liable for battery for infecting another with a sexually transm9itted disease se)5e also Restatement Second of Torts Assault stating that an assault occurs when a person acts intending to cause a harm6.5fu3.7l Chapter of the Florida Statutes is m8.6e-0.4ntioned in the Com8.8p1laint because conduct against a person in violation of the crim7.8inal laws of the generally give rise to a civil claim9.1 intentional tort Count I does not purport to bring a separate civil claim9 for violation of a strictly crim9inal statute Assault and battery are closely related com8.7m8.7on law intentional torts that are com8.8m8.8only alleged together See Herzfeld Herzfeld So.2d noting that plaintiff alleged intentional tort of4 assault and battery based on a llegations sexual abuse Sullivan Atlantic Federal Savings Loan So.2d Fla 4th DCA hol ding that a cause of action for assault and battery cannot be based entirely on an om8.6ission Case Document Entered on FLSD Docket Page of Herman Mermelstein A w.hermanlaw.com person of the other or an apprehension of such contact and the other is thereby put in such apprehension 1800Epstein?s conduct as alleged in this case of m8.6a-0.4sterbating during the m8.6a-0.4ssage directing the Plaintif4.3f4.3 to rem9.1ove her clothes a nd touching the Plaintif4f4,1 constitutes the intentional tort of assault and battery Accordingly even if the Com8.6p0.8laint had not been am8.6ended it sufficiently alleges facts establishing an assault and battery Based on the foregoing Defendant?s Motion to Di sm8.5iss is m8.5oot and in any event not well founded and therefore should be denied Dated Septem8.4ber 2750Respectfully subm8.4itted By Jeffrey Herm8an Jeffrey Herm8an FL Bar No jherm8.5a-0.5n herm8.5anlaw.com Stuart Merm8.4elstein FL Bar No ssm8.3 herm8.3a-0.6nlaw.com Adam7.9 Horowitz FL Bar No ahorowitz herm8.3a-0.7nlaw.com HERMAN MERMELSTEIN P.A Attorneys for Plaintiffs Jane Doe Biscayne Blvd Suite Miam8.5i Florida Tel Fax CERTIFICATE OF SERVICE I hereby certify that on Septem8.6ber I el ectronically filed the foregoing docum8.7ent with the Clerk of the Court using CM/ECF I al so certify that the foregoing docum8.5ent is being served this day to all parties on the attached Service List in the specified either via transm8.5ission of Notices of Electronic Filing gene rated by CM/ECF or in other authorized for those parties who are not authorized to receive electronically Notices of Electronic Case Document Entered on FLSD Docket Page of Herman Mermelstein A w.hermanlaw.com Filing Herm8.6an Case Document Entered on FLSD Docket Page of Herman Mermelstein A w.hermanlaw.com SERVICE LIST DOE vs JEFFREY EPSTEIN CASE NO 08-CV-80119-MARRA/JOHNSON United States District Court Southern District of Florida Jack Alan Goldberger Esq jgoldberger agwpa.com Michael Tein Esq tein lewistein.com Robert Critton Esq rcritton bclclaw.com Michael Pike Esq bclclaw.com Jeffrey Herm8.1an Case Document Entered on FLSD Docket Page of
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