Case Document Entered on FLSD Docket Page of Case No CV-80381-Marra-Johnson Page No Motion Counts I and Ill of the Amended Complaint are required to be dismissed for failure to state a claim upon which relief can be granted Rule Plaintiff has failed to allege sufficient factual allegations in the Counts and instead alleges labels and conclusions and an attempted formulaic recitation of the elements in each Count In the alternative Defendant seeks more definite statement of Count I and Ill In Count I the Plaintiff is required to more definitely allege in the context of the claim for assault underlying factual allegations pertaining to the creation in Plaintiff of imminent fear of peril what EPSTEIN said and did if anything to create fear and apprehension in Plaintiff In Count Plaintiff is required to more definitely state the underlying factual allegations to support her claim as set forth in the statute U.S.C and Rule See discussion of law below herein Also Plaintiffs reference in Count Ill to U.S.C pertaining to habeas corpus proceedings is required to be stricken as immaterial Rule Plaintiff is required to more definitely state what statutory provision she is relying on Rule WHEREFORE Defendant respectfully requests that this Court dismiss Counts I and strike the immaterial statutory reference and require Plaintiff to more definitely plead the underlying elements of her claims Supporting Memorandum of Law Standard on Rule Motion To Dismiss As established by the Supreme Court in Bell Atlantic Corp Twombly S.Ct a motion to dismiss should be granted if the plaintiff does not plead enough facts to state a claim to relief that is plausible on its face Id at Although the complaint need not provide detailed factual allegations the basis for relief Case Document Entered on FLSD Docket Page of Case No CV-80381-Marra-Johnson Page No in the complaint must state more than labels and conclusions and a formulaic recitation of the elements of a cause of action will not do Id at Further factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true even if doubtful in fact Id On a motion to dismiss the well pleaded allegations of plaintiffs complaint are taken as true and construed in the light most favorable to the plaintiff M.T.V DeKalb County Sch Dist F.3d 11th Significantly the Supreme Court in Bell Atlantic Corp Twombly abrogated the often cited observation that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove not set of facts in support of his claim that would entitle him to relief abrogating and quoting Conley Gibson U.S S.Ct L.Ed.2d The Supreme Court rejected the notion that a wholly conclusory statement of claim can survive a motion to dismiss whenever the pleadings leave open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery As explained by the Supreme Court in Bell Atlantic Corp supra at While a complaint attacked by a Rule motion to dismiss does not need detailed factual allegations ibid Sanjuan American Bd of Psychiatry and Neurology Inc F.3d a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions and a formulaic recitation of the elements of a cause of action will not do see Papasan Allain U.S S.Ct L.Ed.2d on a motion to dismiss courts are not bound to accept as true a legal conclusion couched as a factual allegation Factual allegations must be enough to raise a right to relief above the speculative level see Wright A Miller Federal Practice and Procedure pp 3d hereinafter Wright Miller The pleading must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action on the assumption that all the allegations in the complaint are true even if Case Document Entered on FLSD Docket Page of Case No CV-80381-Marra-Johnson Page No doubtful in fact see e.g Swierkiewicz Sorema A U.S S.Ct L.Ed.2d Neitzke Williams U.S S.Ct L.Ed.2d Rule does not countenance dismissals based on a judges disbelief of a complaints factual allegations Scheuer Rhodes U.S S.Ct L.Ed.2d a well-pleaded complaint may proceed even if it appears that a recovery is very remote and unlikely Pursuant to Rule a party may move for more definite statement of a pleading to which a responsive pleading is allowed where the pleading is so vague or ambiguous that the party cannot reasonably frame a response The motion is required to point out the defects and the desired details Id Count I Sexual Assault and Battery is subject to dismissal as Plaintiff has failed to state a claim upon which relief can be granted It is well settled that this Court is to apply Florida substantive law in this action Erie R.Co Tompkins S.Ct Pursuant to Florida law although the term assault and battery is most commonly referred to as if it were a legal unit or a single concept assault and battery are separate and distinct legal concepts assault being the beginning of an act which if consummated constitutes battery 3A Fla.Jur.2d Assault An assault and battery are intentional acts See generally Spivey Battaglia So.2d Fla and Travelers lndem Co PCR Inc So.2d Fla An assault is an intentional unlawful offer of corporal injury to another by force or exertion of force directed toward another under such circumstances as to create a reasonable fear of imminent peril See Lay Kremer So.2d Fla 1st DCA It must be premised upon an affirmative act a threat to use force or the actual exertion of force See 3A Fla.Jur.2d Assault The essential element of the tort of assault is the violence offered and not actual physical contact Case Document Entered on FLSD Docket Page of Case No CV-80381-Marra-Johnson Page No As further explained in Florida Jurisprudence 2d Assault An assault is defined as an intentional unlawful offer of corporal injury to another by force or force unlawfully directed toward the person of another under circumstances as to create a fear of imminent peril coupled with the apparent present ability to effectuate the attempt At common law a tortious assault is an act that puts another in reasonable apprehension of immediate bodily harm In of her Amended Complaint Plaintiff does plead the requisite touching element of battery so that aspect of the assault and battery claim is not being challenged With the standard of pleading established in Twombly supra in the context of assault Plaintiff has failed to state a claim upon which relief can be granted Rule As to the elements of assault there are no factual allegations as to what was said or done to Plaintiff such that it constituted an intentional unlawful offer of corporal injury to another by force or exertion of force directed toward another under such circumstances as to create a reasonable fear of imminent peril See of Arn Comp In ff13 alleges that JANE DOE NO and another unidentified girl were then able to get dressed leave the room and go back downstairs Esptein gave both girls money for this massage Allegations as to circumstances creating a fear of imminent peril are lacking Under applicable law Plaintiff is required to give more than labels and conclusions and a formulaic recitation of the elements of a cause of action Twombly supra Plaintiff is required to allege the facts of what was done to her what EPSTEIN said and did if anything to create fear and apprehension in Plaintiff As noted in the introduction and as this Court is well aware there is more than one action brought against this Defendant attempting to allege similar sounding claims With all due respect the details as to a particular claim asserted by a particular Plaintiff Case Document Entered on FLSD Docket Page of Case No CV-80381-Marra-Johnson Page No are important to give this Defendant fair notice of Plaintiffs claim so he may properly respond Accordingly under applicable law Plaintiff has failed to state a claim for sexual assault and battery has Plaintiff has failed to plead requisite factual allegations concerning the assault In the alternative to dismissing Count I Defendant requests that Plaintiff be required to give more definite statement as to what was done to her what EPSTEIN said and did if anything to create fear and apprehension in Plaintiff in pleading the elements of assault Rule Count Ill Coercion and Enticement to Sexual Activity in Violation of U.S.C is subject to dismissal as Plaintiff has failed to state a claim upon which relief can be granted Rule Count Ill also contains an immaterial reference to U.S.C which is required to be stricken and more definitely stated Count Ill of Plaintiffs Complaint attempts to assert a claim for Coercion and Enticement to Sexual Activity in Violation of U.S.C In her prayer for relief in Count Ill Plaintiff demands judgment against Defendant Jeffrey Epstein for all damages available under U.S.C a Although the reference to U.S.C pertaining to habeas corpus proceedings federal custody and remedies on motion attacking sentence is probably a typographical error by Plaintiff and the reference to was meant to be Defendant requests that Plaintiff correct this error so that Defendant may have fair notice of the claim Plaintiff is attempting to assert Whether or not the is typographical error Defendant is still entitled to dismissal of the count The applicable version of these statutory provisions Amendments as the Amended Complaint alleges a time period of in or about provides Case Document Entered on FLSD Docket Page of Case No CV-80381-Marra-Johnson Page No CHAPTER 117--TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY AND RELATED CRIMES Coercion and enticement a Whoever knowingly persuades induces entices or coerces any individual to travel in interstate or foreign commerce or in any Territory or Possession of the United States to engage in prostitution or in any sexual activity for which any person can be charged with a criminal offense or attempts to do so shall be fined under this title or imprisoned not more than years or both Whoever using the mail or any facility or means of interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States knowingly persuades induces entices or coerces any individual who has not attained the age of years to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense or attempts to do so shall be fined under this title and imprisoned not less than years and not more than years CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN Civil remedy for personal injuries a Any minor who is a victim of a violation of section or of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit including a reasonable attorneys fee Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than in value Any action commenced under this section shall be barred unless the complaint is filed within six years after the right of action first accrues or in The above-quoted version of U.S.C is the amendments which amended the statute as follows Amendments Subsec a Pub.L a A struck out and inserted Subsec Pub.L a struck out and inserted Pub.L A i struck out imprisoned and inserted and imprisoned not less than years and Pub.L A ii struck out or both at end of subsec Defendant is not waiving his right to claim that the amended version of the statute is applicable in this action However for purposes of this motion the relevant statutory language is the same Case Document Entered on FLSD Docket Page of Case No CV-80381-Marra-Johnson Page No the case of a person under a legal disability not later than three years after the disability Relevant to Plaintiffs complaint U.S.C a creates a civil remedy for a minor who is a victim of a violation of section of this title and who suffers personal injury as a result of such violation Plaintiff has failed to plead any factual allegations whatsoever pertaining to violations of U.S.C Rather Plaintiff has alleged conclusory allegations simply attempting to track parts of the statutory language in the statute without underlying factual allegations pertaining to the Plaintiff and any conduct by Defendant See of Am Comp Plaintiffs allegations or lack of factual allegations are precisely what the standard set forth by the Supreme Court in Bell Atlantic Corp prohibits Plaintiffs complaint alleges only labels and conclusions and a partial formulaic recitation of the elements First the Amended Complaint fails to designate whether Plaintiff is relying on a or Second although the complaint does contain a partial tracking of the language in U.S.C it contains absolutely no factual allegations concerning the requisite using the mail or any facility or means of interstate or foreign commerce by Plaintiff to state a cause of action based on a violation of U.S.C As well there are no underlying factual allegations involving this Plaintiff as to the requisite elements that a defendant knowingly persuaded induced enticed or coerced any individual Plaintiff in this case who has not attained the age of years to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense or attempted to do so See U.S.C i.e with what criminal offense could Plaintiff and Defendant have been charged Again a Plaintiff cannot simply track the language of a statute without some underlying factual allegations to Case Document Entered on FLSD Docket Page of Case No CV-80381-Marra-Johnson Page No state a claim upon which relief can be granted Accordingly Count Ill is required to be dismissed and the reference to USC be stricken In the alternative Plaintiff should be required to more definitely state the underlying factual allegations to support her claim as set forth in the statute U.S.C and Conclusion As discussed above herein under the pleading standard established in Twombly supra and law concerning the elements of Count I and Ill Plaintiff has failed to state clalms upon which relief can be granted Rule Plaintiffs complaint lack underlying factual allegations and thus Plaintiff is required to more definitely state the requisite factual allegations Finally Plaintiff should correct any improper statutory references Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF I also certify that the foregoing document is being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this th day of October Adam Horowitz Esq Jeffrey Marc Herman Esq Stuart Mermelstein Esq Biscayne Boulevard Suite Miami FL Fax ahorowitz hermanlaw.com jherman hermanlaw.com lrivera hermanlaw.com Counsel for Plaintiff Jane Doe Jack Alan Goldberger Esq Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL Fax jagesq bellsouth.net Counsel for Defendant Jeffrey Epstein Case Document Entered on FLSD Docket Page of Case No CV-80381-Marra-Johnson Page No Michael Tein Esq Lewis Tein P.L Grand Avenue Suite Coconut Grove FL Fax Counsel for Defendant Jeffrey Epstein tein lewistein.com By ROBERT RITTON JR ESQ Florida Bar rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar mpike bclclaw.com BURMAN CRITTON LUTTIER COLEMAN Flagler Drive Suite West Palm Beach FL Phone Fax Co-Counsel for Defendant Jeffrey Epstein
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