Case Document Entered on FLSD Docket Page of CASE NO 09-CV-80591-MARRA/JOHNSON First Amended Complaint FAC D.E Accordingly notice pleading is all that is required Lombards Inc Prince Mfg inc F.2d 11th Cir Under notice pleading the plaintiff need only provide the defendant fair notice of his claim and the grounds upon which it rests See Erickson Pardus Ct As this is a liberal pleading requirement pecific facts are not necessary the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests id quoting Bell At Corp Twombly U.S internal citation omitted In considering a motion to dismiss a court places a very high burden on a defendant to show that a plaintiff cannot conceivably prove any set of facts that would entitle him to relief Beck Deloitte Touche et al F.3d 11th Cir accord H.J inc Nw Bell Tel Co U.S The FAC satisfies the aforementioned pleading requirements REQUIRING MERGER OF EACH SEPARATE STATUTORY PREDICATE OFFENSE INTO ONE SINGLE COUNT WOULD BE IMPROPER A Pleading of Multiple Counts Under U.S.C Is Proper In his motion Defendant argues that the multiple counts of the FAC should be merged into a single count Defendant improperly asserts Contrary to Plaintiffs attempt to multiply her recovery by asserting six separate counts U.S.C creates a single cause of ac tion with a single penalty for all violations of a predicate offense not separate causes of action and separate recoveries on a per violation basis Motion In so contending Defendant both confuses and incorrectly advances two distinct propositions first that pleading a separate count for each violation of a predicate offense as set Podhurst Orseck P.A West Flagler Street Suite Miami FL Miami Fax Fort Lauderdale w.podhurst.com Case Document Entered on FLSD Docket Page of CASE NO 09-CV-80591-MARRA/JOHNSON forth in Section of Title is improper and second that all violations of a particular predicate offense must be pied as a single cause of action to provide for a single recovery even where multiple violations of that particular predicate offense may exist In connection with Defendants first proposition a plain reading of Section demonstrates that this civil remedies statute applies individually to each numerated predicate offense and establishes the minimum amount of civil damages available to a qualifying victim for each violation Specifically S.C Section provides a In General Any person who while a minor was a victim of a violation of section or of this title and who suffers personal injury as a result of such violation regardless of whether the injury occurred while such person was a minor may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit including a reasonable attorneys fee Any person as described in the preceding sentence shall be deemed to have sustained damages ofno less than in alue U.S.C a Nowhere does the above statutory text require that the violation of the specified federal statutes be pied as a single count Section provides a civil remedy for a violation of each of the predicate offenses and does not as Defendant maintains preclude multiple counts from being pied pursuant to its terms For each predicate offense that Defendant committed Section should apply independently and uniquely to properly determine the minimum amount of civil damages to be awarded for such offense To adopt the contrary approach is to suggest that a victim of a violation of a single predicate offense receive the same compensation as a victim of multiple enumerated predicate offenses The statutes language as July approximately two years before Defendant pled guilty to state criminal offenses and signed the Non-Prosecution Agreement Public Law the Adam Walsh Child Protection and Public Safety Act became law and raised the statutory minimum for damages under U.S.C Section from to Podhurst Orseck P.A West Flagler Street Suite Miami FL Miami Fax Fort Lauderdale w.podhurst.com Case Document Entered on FLSD Docket Page of CASE NO 09-CV-80591-MARRA/JOHNSON well as principles of equity provide for recovery for each separate predicate offense to interpret the statute as Defendant proposes would mean that Congress granted defendants who violate a predicate offense the ability to violate additional predicate offenses without any accountability This was not Congress intent The underlying approach to statuto1y interpretation or construction in Flmida is set forth inA.R Douglass Inc McRainey So Fla The intention and meaning of the Legislature must primarily be detennined from the language of the statute itself and not from conjectures aliunde When the language of the statute is clear and unambiguous and conveys a clear and definite meaning there is no occasion for resorting to the rules of statutory interpretation and construction the statute must be given its plain and obvious meamng Id at A review of the wording of Section unambiguously demonstrates that the statute provides damages for both multiple violations of a single predicate act as well as multiple violations of separate predicate acts In its cmTent form the statute allows a ny person who while a minor was a victim of a violation of section or of this title and who suffers personal injury as a result of such violation to recover damages in an amount of not less than U.S.C a emphasis added This statute is properly read to apply the damage floor of Section to each violation of a predicate offense Defendants assertion that the above statute only permits a single recovery based on a single cause of action would require that the statute be rewritten to eliminate the use of the article a and to make plural all singular usages of the word violation See Section I of this Reply in support of the pleading of multiple violations of a predicate offense Podhurst Orseck P.A West Flagler Street Suite Miami FL Miami Fax Fort Lauderdale w.podhurst.com Case Document Entered on FLSD Docket Page of CASE NO 09-CV-80591-MARRA/JOHNSON The statute however was not written in this manner and where the statute as currently constructed is unambiguous in its meaning judicial interpretation of the statute would be improper See Heredia Allstate Insurance Company So.2d Fla explaining that here the words selected by the Legislature are clear and unambiguous judicial interpretation is not appropriate to displace the expressed intent In the instant case where Defendant violated multiple predicate offenses in his sexual exploitation of Plaintiff it is proper to plead each violation as a separate count and seek damages under each count in accordance with Section Pleading of Multiple Violations of a Predicate Offense Under U.S.C Is Proper Defendant continues his self-serving interpretation of Section through the advancement of his second proposition Similar to the above argument that the violation of several predicate offenses should be pied as one count Defendant argues that when multiple violations of a single predicate offense occur a victims recovery on a per violation basis is prohibited Again Defendants contention fails on the basis of a common sense reading of the statute and principles of fairness Just as it makes no sense to compensate a victim of a violation of a single predicate offense with exactly the same amount as a victim of a violation of multiple predicate offenses it is equally unsustainable to argue that a victim of multiple violations of a predicate offense should receive the same damage award as a victim of only a single violation of that same offense To maintain otherwise is to eliminate the deterrent value of the statutory scheme by allowing a defendant to continue to victimize a child without any additional consequences subsequent to such defendants first violation of the relevant predicate act Podhurst Orseck P.A West Flagler Street Suitt Miami FL Miami Fax Fort Lauderdale w.podhurst.com Case Document Entered on FLSD Docket Page of CASE NO 09-CV-80591-MARRA/JOHNSON Defendant argues that where actual damages were less than the threshold amount or otherwise impossible to prove the statute would guarantee a lump-sum make-whole penalty of the threshold amount for all injuries sustained as a result of the predicate acts Motion Defendant fails to provide any support for this contention either in the case law legislative history or otherwise First Defendant incorrectly states the amount of the make-whole penalty The statute unambiguously provides that any person as described in the preceding sentence shall be deemed to have sustained damages of no less than the threshold amount U.S.C a As such the threshold amount is a floor and not a ceiling on the amount of damages that can be awarded for a violation of each predicate offense Consequently in the instant case even if all violations of the predicate offenses as well as all violations of a single predicate offense were merged into a single cause of action the recovery would not be limited to the minimum threshold damage award Relevant case law provides support for holding Defendant accountable for each time he violated any of the enumerated predicate offenses In United States Esch F.2d 10th Cir the court established that a determination of the correct unit of prosecution for violation of a statute focuses in part on the identification of the key element of the federal offense In Esch the defendants were convicted on sixteen counts of sexual exploitation of children for photographs taken in violation of Title Section of the U.S Code Id at The court held that the indictment properly charged separate counts for each of the photographs produced Id at Specifically the court noted that the charging of Note that although Defendaut contends that all predicate violations of predicate offenses as well as multiple violations of a single predicate offense should be pied as a single cause of action with only a single recovery Esch stauds for the contrary view Podhurst Orseck P.A West Flagler Street Suite Miami FL Miami Fax Fort Lauderdale w.podhurst.com Case Document Entered on FLSD Docket Page of CASE NO 09-CV-80591-MARRA/JOHNSON separate offenses was warranted where Jach photograph depended upon a separate and distinct use of the children in violation of the key element of the offense Id at see also Ebeling Morgan U.S charging the defendant with a separate count for each mail bag cut open in violation of the statutory offense despite the transaction being in a sense continuous United States Gallardo F.2d 5th Cir explaining that each separate use of the mail to transport or ship child pornography should constitute a separate crime because it is the act of either transporting or shipping that is the central focus of U.S.C a A a predicate statute Notwithstanding that the foregoing jurispmdence involved criminal prosecution for the violation of predicate offenses because Section exists to provide civil remedies for those predicate offenses Defendants contention that a plaintiff seeking recourse under Section cannot assert a claim on a per violation basis is without merit It is simply illogical to assert as Defendant does that multiple counts and violations can be charged in the criminal context but that in a civil action under Section for those same violations all counts and violations must be lumped together as one with a single penalty Multiple counts are proper as shown for example in Tilton Playboy Entertainment Group Inc F.3d 11th Cir on which Defendant relies in his Motion Motion In Tilton the court did not prohibit the plaintiff from seeking separate damages against several defendants based on a single incident for violations of three predicate offenses under Section a a and A a Id Although the counts brought under Sections a and A were deemed to be duplicative by the court and thus were merged the plaintiff was nevertheless able to recover on the two remaining counts and was Podhurst Orseck P.A West Flagler Street Suite Miami FL Miami Fax Fort Lauderdale w.podhurst.com Case Document Entered on FLSD Docket Page of CASE NO 09-CV-80591-MARRA/JOHNSON awarded civil damages for each pursuant to U.S.C Section Furthermore Defendants reliance on Tilton to claim that multiple alleged violations of a single predicate offense have never been allowed is misplaced this case involved only a single violation of a predicate statute Moreover Defendants reliance on its own Doe vs Epstein line of cases is at a minimum premature Accordingly in the instant case not only was it proper for Plaintiff to plead multiple counts in the PAC for the violation of each predicate statute identified therein but also this Court should assess civil damages under Section for each violation of a particular predicate statute Defendants argument is unsupported by case law and is nothing more than a blatant attempt to limit Plaintiffs potential recovery as a victim of Defendants multiple acts of sexual exploitation and abuse Dated this_ day ofJune Podhurst Orseck P.A Respectfully submitted PODHURST ORSECK P.A Attorneys for Plaintiff By s/Katherine Ezell Robert Josefsberg Fla Bar No rjosefsberg podhurst.com Katherine Ezell Fla Bar No kezell podhurst.con1 Podhurst Orseck P.A West Flagler Street Suite Miami Florida fax West Flagler Street Suite Miami FL Miami Fax Fort Lauderdale w.podhurst.com Case Document Entered on FLSD Docket Page of CASE NO 09-CV-80591-MARRA/JOHNSON CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this 26th day of June we electronically filed the foregoing document with the Clerk of the Court using CM/ECF We also certify that the foregoing document is being served this day on all counsel of record identified on the attached Service List either via transmission of Notices of Elech 267onic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing Podhurst Orseck P.A Respectfully submitted PODHURST ORSECK P.A Attorneys for Plaintiff By s/Katherine Ezell Robert Josefsberg Fla Bar No ri osefsbcrg podhurst corn Katherine Ezell Fla Bar No kezell podhurst.com City National Bank Building Flagler Street Suite Miami FL Telephone Facsimile West Flagler Street Suite Miami FL Miami Fax Fort Lauderdale w.podhurst.com Case Document Entered on FLSD Docket Page of CASE NO 09-CV-80591-MARRA/JOHNSON SERVICE LIST JANE DOE NO JEFFREY EPSTEIN Case No 08-CV-80591-MARRA/JOHNSON United States District Court Southern District of Florida Robert Critton Esq Bunnan Critton Luttier Coleman LLP Nmih Flagler Drive Suite West Palm Beach FL rcrit bclclaw.com Jack Goldberger Esq Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL jagesq bellsouth.net Podhurst Orseck P.A West Flagler Street Suite Miami FL Miami rax Fort Lauderdale w.podhurst.com
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