On December the State Attorney filed his Motion to Dismiss Plaintiffs Complaint Notably this filing put Plaintiff on notice that Despite Plaintiffs allegations to the contrary Defendant Aronberg is not in custody or control of the records sought and is therefore not a proper party to this action On December the Clerk also filed a Motion to Dismiss On January Plaintiff filed its First Amended Complaint which in addition to its original claim under Fla Stat Count added a claim for Declaratory Relief Count I that sought an order declaring that the State Attorney and the Clerk disclose the Requested Materials so Plaintiff could use those materials for the purpose of informing the public On January the State Attorney and the Clerk each filed an Answer to Count I of the First Amended Complaint and a Motion to Dismiss Count II Answer/Motion to Dismiss This filing by the State Attorney again notified Plaintiff that It is significant to emphasize that despite Plaintiffs allegations to the contrary Defendant Aronberg and the Office of the State Attorney for the Fifteenth Judicial Circuit are not in custody or control of the records sought herein and therefore Defendant Aronberg is not a proper party to this action In fact Defendant Sharon Bock as Clerk and Comptroller of Palm Beach County Florida admits that it is the custodian in possession of the documents that are the subject of this action See Aronberg Answer/Motion to Dismiss Count II On June Chief Judge Marx held a hearing on the State Attorneys and Clerks Motions to Dismiss Count II Def.Ex.2 On June the Court entered its Order Granting Defendants Motions to Dismiss Count II of Plaintiffs First Amended Complaint with Prejudice Order Def.Ex.3 Immediately following the Courts Order on June the State Attorney through the undersigned counsel served Plaintiff with a demand pursuant to Fla Stat to voluntarily dismiss/withdraw the First Amended Complaint and the claims against the State Attorney along with a Motion for Attorneys Fees Demand Def.Ex.4 As a result of the Order only Count I of Plaintiffs First Amended Complaint remained which sought Declaratory Relief under Fla Stat In serving his Demand on Plaintiff the State Attorney properly put Plaintiff on notice that he would seek sanctions by filing the Motion for Attorneys Fees if Plaintiff failed to dismiss the remainder of its First Amended Complaint within days of service of the Demand that Likewise the State Attorneys Demand specifically informed Plaintiff First and foremost the First Amended Complaint is not supported by the material facts necessary to establish the claims asserted because neither Defendant Aronberg nor The Office of the State Attorney for the Fifteenth Judicial Circuit is in custody or control of the grand jury materials sought therein Simply put the declaratory relief sought by the Plaintiff seeks records from my client that are impossible for him or his office to produce Accordingly Defendant Aronberg is not a proper party to this action because no matter what he and his office do not have possession custody or control of the Requested Materials Moreover even if the Plaintiff were to prevail in the declaratory action Mr Aronberg would be unable to comply with any court order granting disclosure of the requested documents because neither Mr Aronberg nor The Office of the State Attorney for the Fifteenth Judicial Circuit have possession custody or control of the Epstein grand jury records On June Plaintiffs counsel sent a response to the Demand refusing to withdraw the remainder of the First Amended Complaint as to the State Attorney Def.Ex.SJ After receiving Plaintiffs June response refusing to withdraw the remainder of the First Amended Complaint and waiting the prerequisite days after service of the motion the State Attorneys Motion for Attorneys Fees was filed with this Court on July hereinafter First Motion for Attorneys Fees Def.Ex.6 Thereafter on August the State Attorney filed his Motion for Summary Judgment which included the Affidavit of the State Attorney Affidavit Def.Ex.7 and proceeded on October to file a Motion to Set Hearing on the State Attorneys Motion for Summary Judgment after it became clear that there would be no resolution of this matter without the Courts intervention Nonetheless later the same day October rather than setting and participating in a hearing on the merits as to State Attorneys Motion for Summary Judgment Plaintiff filed its Notice of Dropping the State Attorney from the instant case pursuant to Rule Florida Rules of Civil Procedure Def.Ex.SJ As the filing of Plaintiffs Notice of Dropping the State Attorney operates as an adjudication on the merits as to the State Attorney the Amended Motion for Attorneys Fees Amended Motion was filed November to include the entirety of the State Attorneys legal fees up to that date Def.Ex.9 MEMORANDUM OF LAW I LEGAL STANDARD The central purpose of Fla Stat is and always has been to deter meritless filings and thus streamline the administration and procedure of the courts Thus the post-19 version of has expanded the circumstances where fees should be awarded and the purpose is to deter meritless filings Davis Bailynson So 3d Fla 4th DCA See Bionetics Corp Kenniasty So 3d Fla Accordingly Fla Stat provides the following language authorizing the award of attorneys fees as sanctions in actions such as the present litigation Upon the courts initiative or motion of any party the court shall award a reasonable attorneys fee including prejudgment interest to be paid to the prevailing party in equal amounts by the losing party and the losing partys attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing partys attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial a Was not supported by the material facts necessary to establish the claim or defense or Would not be supported by the application of then-existing law to those material facts Fla Stat Hence in addition to a motion by any party Section clearly and explicitly confers upon the trial court the authority to award attorneys fees to the prevailing party upon the courts initiative if the court finds that the losing party knew or should have known that a claim or defense when initially presented to the court or at any time before trial as not supported by the material facts necessary to establish the claim or defense or would not be supported by the application of then-existing law to those material facts Koch Koch So 3d Fla 2d Moreover under Fla Stat the legislature has expressed its unequivocal intent that where a party files a meritless claim suit or appeal the party who is wrongfully required to expend funds for attorneys fees is entitled to recoup those fees Martin County Conservation Alliance Martin County So 3d Fla 1st DCA finding that Courts are not at liberty to disregard the legislative mandate that courts shall impose sanctions in cases without foundation in material fact or law The word shall in Fla Stat evidences the legislative intent to impose a mandatory penalty to discourage baseless claims by placing a price tag on losing parties who engage in these activities Section expressly states courts shall assess attorneys fees for bringing or failing to dismiss baseless claims or defenses Additionally ection does not require a finding of frivolousness to justify sanctions but only a finding that the claim lacked a basis in fact or law and does not require a party to show complete absence of a justiciable issue of fact or law Martin County Conservation Alliance Martin County So 3d Fla 1st DCA However where there is an arguable basis in law and fact for a partys claim a trial court may not sanction that party under section Minto PBLH LLC Friends of Florida Inc So 3d Fla 4th Finally in determining an award of sanctions under the trial courts findings must be based on substantial competent evidence and the trial court must make an inquiry into what the losing party knew or should have known during the fact-establishment process both before and after the suit was filed See Trust Mortg LLC Ferlanti So 3d Fla 4th DCA See also Chue Lehman So 3d Fla 4th DCA II THE STATE ATTORNEYS AMENDED MOTION IS NEITHER IN VIOLATION OF THE 21-DAY SAFE HARBOR PROVISION IN FLA STAT NOR WAS THE AMENDED MOTION MOOT UPON FILING A The Amended Motion does not violate the 21-day safe harbor provision because Plaintiff dropped the State Attorney from the action prior to the filing of the Amended Motion Section Florida Statutes creates an opportunity to avoid the sanction of attorneys fees by creating a safe period for withdrawal or amendment of meritless allegations and claims Davis Bailynson So 3d Fla 4th DCA Specifically the relevant portion of the Statute states A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless within days after service of the motion the challenged paper claim defense contention allegation or denial is not withdrawn or appropriately corrected Fla Stat Likewise the primary purpose of the safe harbor provision of Fla Stat is to provide the recipient of a motion for an award of costs and attorneys fees with notice and the opportunity to withdraw or abandon a frivolous claim before sanctions are sought MC Liberty Express Inc All Points Servs So 3d Fla 3d DCA Here Plaintiff contends that the State Attorney did not serve his Amended Motion at any time before filing it and thus failed to comply with the 21-day notice provision Def.Ex.10 Plaintiff claims that for this reason alone the Amended Motion should be denied and cites in support of their argument Lago Kame By Design LLC So 3d Fla 4th DCA holding that if a party files a subsequent or amended motion for sanctions under section and raises an argument that was not raised in the original motion for section sanctions the subsequent motion must independently comply with the twenty-one-day safe harbor provision of Section Despite Plaintiffs assertion the instant case is distinguishable from Lago as the rule set forth therein does not apply based on the facts and timeline of this action In Lago the plaintiff served its demand and accompanying motion for attorneys fees on June After waiting for the requisite 21-day safe harbor period to pass the plaintiff filed its motion for attorneys fees with the court on July The plaintiff then filed an amended motion for attorneys fees with the court on September The court entered an order granting the plaintiffs motion for attorneys fees on October The defendant filed a motion for rehearing and on September the court reheard the argument for attorneys fees ultimately upholding its October order Significantly during the September rehearing the defendant withdrew its offending motion that triggered the plaintiffs demand and motion for attorneys fees Eventually on August the trial courts order was remanded by the 4th DCA based on the rule set forth above Thus in Lago because the case was still active when the plaintiffs amended motion for attorneys fees was filed and was not served on the defendant in compliance with the 21-day safe harbor provision before it was filed with the court pursuant to the defendant was entitled to notice and an opportunity to change its position and withdraw its offending motion before being sanctioned The timeline of events in the instant action stands in stark contrast to that of Lago and accordingly necessitates a different result Here Plaintiff was served with the State Attorneys Demand and its accompanying First Motion for Attorneys Fees on June On June Plaintiffs counsel sent a letter in response indicating Plaintiffs refusal to drop the Count I of the First Amended Complaint against the State Attorney After waiting for the requisite day safe harbor period to pass the State Attorneys First Motion for Attorneys Fees was properly filed with the Court Over 4-months later after settlement negotiations failed and after the State Attorneys Motion for Summary Judgment was filed Plaintiff dropped the State Attorney as a party Def.Ex.SJ Significantly only after Plaintiff dropped the State Attorney as a party and thus had no ability to change its position was the Amended Motion filed Based on this fact pattern the Lago rule does not apply here Despite Plaintiffs decision to drop the State Attorney as a party the Florida Rules of Civil Procedure and the courts of Florida are clear Because Rule specifies that a party is dropped in the manner provided for voluntary dismissal in Rule a dropping a party therefore Notably the court in Lago Kame By Design LLC So 3d Fla 4th DCA despite finding that the plaintiffs amended motion for attorneys fees was improper the trial court was instructed to rule as to the plaintiffs original motion for attorneys fees as it was properly served and filed pursuant to Fla Stat operates as an adjudication on the merits See Siboni Allen So 3d Fla 5th DCA Rule a Fla Civ Notably Plaintiff admits that the entire action which necessarily included Count I of the First Amended Complaint was dismissed as to the State Attorney on October Def.Ex.IO Nonetheless as a result of dropping the State Attorney from the case Plaintiff not only effectively made an admission that its allegations against the State Attorney have no basis in fact or law but also concluded the case as to the State Attorney and thereby became the losing party in this action Consequently unlike the fact scenario and timeline in Lago because Plaintiff concluded the instant litigation by dropping the State Attorney from the action before the filing of the Amended Motion it was impossible to give Plaintiff an opportunity to respond and withdraw its Count I of the First Amended Complaint since Plaintiff had already done so and therefore there can be no violation of the 21-day safe harbor provision set forth in Fla Stat Based on the foregoing the State Attorneys Amended Motion does not violate the 21-day safe harbor provision because Plaintiff dropped him from the action prior to the filing of the Amended Motion and therefore Plaintiff was not prejudiced by the filing of the Amended Motion Accordingly as further set forth below Plaintiff has exposed itself to attorneys fees as sanctions for failing to drop the State Attorney as a party within the 21-day safe harbor period The State Attorneys Amended Motion was not moot upon filing but rather was properly filed at the conclusion of the litigation to fully incorporate the entirety of the State Attorneys legal fees to date Oddly Plaintiff also contends that because the State Attorney was dropped from the action nineteen days before the State Attorneys Amended Motion was filed the Amended Motion is somehow moot Def.Ex.10 Not only does Plaintiff fail to provide any authority in support of this position taking such a position lacks any logical reasoning or common sense To be clear the State Attorneys First Motion for Attorneys Fees was properly served and later filed pursuant to the statutory instructions set forth in When Plaintiff failed to withdraw its remaining claim against the State Attorney within the 21-day safe harbor period it exposed itself to sanctions under the Statute despite eventually dropping the State Attorney more than 4-months after the Demand was made As set forth at length above Plaintiffs dropping of the State Attorney as a party acted as an adjudication on the merits against Plaintiff Thus at that time the safe harbor provision of no longer applied to Plaintiff because it acquiesced to the State Attorneys demand albeit late no longer had any opportunity to respond and was unable to change its position or react to the Amended Motion as the State Attorney was no longer an active party in the lawsuit Furthermore the Amended Motion was not moot at the time of filing because when it was filed it incorporated the entirety of the State Attorneys fees from the time of serving the Demand through the time that the State Attorney was dropped from the case and the action concluded There is nothing improper about the Amended Motion or any argument or authority offered by Plaintiff that would make the Amended Motion moot Likewise amended motions for attorneys fees are filed consistently as a matter of course to include the entirety of fees in a lawsuit Here the State Attorneys total legal fees were able to be calculated and submitted at the time of filing the Amended Motion The State Attorneys First Motion for Attorneys Fees is not insufficient and was properly filed in accordance with the procedures set forth in Plaintiff argues that the State Attorneys First Motion for Attorneys Fees was insufficient under Fla Stat when filed because it set forth no substantive arguments as to why Count I of the Amended Complaint was unsupportable based on material facts in the record or the application of existing law to those facts Def.Ex.10 Despite Plaintiffs contention Fla Stat has no such requirement regarding the contents of a motion for attorneys fees served in conjunction with a demand In fact regarding motions for attorneys fees the Statute is limited to the following language regarding the safe harbor provision A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless within days after service of the motion the challenged paper claim defense contention allegation or denial is not withdrawn or appropriately corrected Fla Stat Moreover the State Attorneys June Demand specifically sets forth the reasons why Count I of the First Amended Complaint had no basis in fact or law Likewise the State Attorneys First Motion for Attorneys Fees specifically states that On June Plaintiff was served with a copy of this Motion together with a letter from the undersigned attorney in accordance with subsection of the above Statute demanding dismissal of the First Amended Complaint at least days prior to the filing of this Motion In said letter Defendants attorney advised Plaintiff of the facts which establish that the First Amended Complaint is without support of the facts or the law Def.Ex.6 Accordingly the State Attorney properly put Plaintiff on notice that he would seek attorneys fees as sanctions under if the First Amended Complaint was not withdrawn during the 21-day safe harbor period Hence regardless of the length or breadth of the First Motion for Attorneys Fees it was filed properly within the statutory procedures set forth in and cannot be considered insufficient despite Plaintiffs contention In addition Plaintiff asserts that a motion for sanctions must be supported by the record evidence at the time it is filed and ecause the First Motion was not so supported it fails under the Statute Def.Ex.10 In support of this argument Plaintiff asserts that there was no record evidence supporting the State Attorneys statement from the Demand that it was impossible for him to provide the Requested Materials because he has no possession custody or control of them Despite Plaintiffs argument here Plaintiff has failed to provide any supporting authority whatsoever and there is no statutory requirement or language in that supporting record evidence must exist to properly serve a demand and motion for attorneys fees The central purpose of Fla Stat is and always has been to deter meritless filings and thus streamline the administration and procedure of the courts Davis Bailynson So 3d Fla 4th DCA In this vein a demand and accompanying motion for attorneys fees can be filed at any time after a lawsuit is initiated hence even directly in response to the filing of a complaint regardless of whether any record evidence exists at the time in support of the demand In fact specifically states in pertinent part that The court shall award a reasonable attorneys fee on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing partys attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial a Was not supported by the material facts necessary to establish the claim or defense or Would not be supported by the application of then-existing law to those material facts Fla Stat Consequently the foregoing indicates that the State Attorneys First Motion for Attorneys Fees as served and filed is sufficient under to seek sanctions from Plaintiff for its failure to drop the State Attorney from the instant lawsuit within the 21-day safe harbor provision after being notified why its First Amended Complaint had no basis in fact or law Furthermore as set forth at length above despite Plaintiffs contention the State Attorney had no obligation to serve his Amended Motion prior to filing it with the Court as Plaintiff had already dropped him from the case when it was filed I THE attorney See Key Biscayne Gateway Partners Ltd Village Council for Village of Key Biscayne So 3d Fla 3d DCA A The defense to the issuance of sanctions under a does not protect Plaintiff because as applied to the material facts Plaintiff has failed to provide a good faith argument with a reasonable expectation of success Notably Plaintiffs arguments exclude the limitation that the a defense only applies to demands made under Accordingly Plaintiffs attempt to prevent an award of sanctions here only applies to whether Plaintiff or Plaintiffs attorney knew or should have known that the First Amended Complaint when initially presented to the court or at any time before trial would not be supported by the application of then-existing law to those material facts necessary to establish their claim See Despite Plaintiffs argument that sanctions pursuant to are unjustified based on the defense provided under a Plaintiffs argument fails as there is no arguable basis in law that the State Attorney provide the Requested Materials In determining an award of sanctions under the trial court must make an inquiry into what the losing party knew or should have known during the fact-establishment process both before and after the suit was filed See Trust Mortg LLC Ferlanti So 3d Fla 4th DCA See also Chue Lehman So 3d Fla 4th DCA Here Plaintiffs fact-establishment process began before either of its original Complaint or First Amended Complaint were filed Notably both pleadings revolved around Plaintiffs arguments for a private right of action under Fla Stat and whether The Palm Beach Post had constitutional and statutory standing to overcome grand jury secrecy provisions in furtherance of justice As Plaintiff researched Fla Stat it would seem reasonable that Plaintiff would have encountered Fla Stat during its fact-establishment process Notably regarding the disclosure of grand jury materials states The notes records and transcriptions are confidential and exempt from the provisions of ands a Art I of the State Constitution and shall be released by the clerk only on request by a grand jury for use by the grand jury or on order of the court pursuant to Accordingly based on the clear unambiguous statutory language set forth in only the Clerk not the State Attorney may release grand jury materials pursuant to an order of the court Thus it is apparent that the State Attorney and his office lack the legal authority to obtain and deliver the Requested Materials demanded by Plaintiff in Count I of the First Amended Complaint Regardless of whether Plaintiff actually knew of the controlling provision set forth in during its fact-establishment process Plaintiff was not only on constructive notice of said statutory provision Plaintiff was specifically informed of this provision in several instances prior to the State Attorney being dropped as a party Nonetheless based on Plaintiffs own research statutory constructive notice the State Attorneys affidavit all of the pleadings and correspondence in this matter as well as through the State Attorneys office press release and social media accounts and Chief Judge Marxs statements during the June hearing Plaintiff should have known that Count I of the Amended Complaint would not be supported by the application of then-existing law to the material facts in this action See Sanctions against Plaintiff are appropriate under 57.lOS a as Plaintiff knew or should have known that Count I was not supported by the material facts necessary to establish the claim or defense Even if Plaintiff were somehow successful in defending against sanctions based on a good faith argument for a reasonable expectation of success pursuant to sanctions would still be appropriate against Plaintiff pursuant to a regardless of Plaintiffs alleged good faith belief or reasonable expectation of success Section a states that the court shall award a reasonable attorneys fee on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing partys attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial a was not supported by the material facts necessary to establish the claim or defense As to a the material facts showing that Plaintiffs claim has no reasonable expectation of success have been open obvious and apparent to everyone involved in this matter from the start Specifically the State Attorneys position has been consistent neither he nor his office has possession custody or control of the Requested Materials and therefore the declaratory relief sought by Plaintiff seeks materials that are impossible for the State Attorney or his office to produce and he is not a proper party to this action Def.Ex.7 Again these material facts negating Plaintiffs claim against the State Attorney were not only set forth in the June Demand Letter but have been the basis for the State Attorneys defense in every pleading filing and/or correspondence in this matter Plaintiff should have known from the initiation of the case that the First Amended Complaint was not supported by the material facts necessary to establish their claim for declaratory relief and at the very least Plaintiff should have known that its First Amended Complaint was not supported by the material facts after Judge Marxs statements during the June hearing on Defendants Motion to Dismiss Plaintiffs Count II During that hearing Chief Judge Marx drew a bright line as to when Plaintiff knew or should have known that Count I of the Amended Complaint had no basis in fact or law since the relief sought thereby is impossible for the State Attorney to perform Specifically Chief Judge Marx made the following statements putting Plaintiff on notice if they werent already I must look at the four comers of the motion which alleges that the State Attorney Dave Aronberg and the clerk and comptroller Sharon Bock actually have custody and control of these grand jury proceeding Whether that is true or not is not for this court to determine because Im looking simply at the four comers of the complaint But not for nothing I think we all know that they dont have control and custody of the records June Hearing Transcript I think we can all agree that the state attorney doesnt have these records June Hearing Transcript Im asking you how are the clerk and the state attorney the proper defendants June Hearing Transcript Im puzzled by the procedural posturing of this case naming the state attorney And you know Im further stymied by the fact that you allege in your complaint that they have particularly David Aronberg the State Attorney that he has these records June Hearing Transcript Okay lets run this all the way out Lets say you win and you get a judgment against the State Attorney Dave Aronberg Whats he supposed to do with it He cant release the grand jury testimony He has no authority whatsoever to do that June Hearing Transcript And the only thing were here today about is why should the clerk and the state attorney have to defend a civil action when its a impossibility of performance They even if you were to win and get a judgment against them they cannot give you what they dont have June Hearing Transcript Im simply saying why should these two entities have to defend this lawsuit when even down the road if you win they cant give you what they dont have June Hearing Transcript And you know really I want you to boil it down for me as to this lets take it all the way down the road You win You get a judgment against the clerk and the state attorney I know theres other reasons why you might have filed it this way But Im just simply puzzled because I do hear what the clerk and the state attorney are saying and that is performance is impossible They dont have the records and cannot absolutely Theres not even an inch of wiggle room that they could release the records even if you got a judgment It is solely a determination for the court I frankly think you know theres ways to get to your records Theres ways to get confidential records But it isnt by suing the state attorney and the clerk June Hearing Transcript Even assuming arguendo that they have the records we know they dont you were to get a judgment against them how would you expect them to perform June Hearing Transcript What do you mean What do you mean Theyre not trying to block it Theyre saying that despite the fact lets just talk about the clerk because we all know the state attorney doesnt have it June Hearing Transcript In fact during the Motion to Dismiss hearing Plaintiffs counsel Ms Boyagian acknowledged on the record the State Attorneys assertion that he does not have possession custody or control of the Requested Materials My understanding is that the state attorney has asserted that he does not have possession Its not my understanding that the clerk has taken that position So the clerk may indeed be the someone who does have possession custody and control June Hearing Transcript Two points your Honor One is that again the clerk did not assert in her papers that she does not have control That is a position that the State Attorneys Office has asserted June Hearing Transcript Consequently following the June Motion to Dismiss Hearing at the very least Plaintiff knew or should have known under a that Count I of the Amended Complaint was not supported by the material facts necessary to establish their claim See Fla Stat a In fact later the same day that Chief Judge Marx entered her Order Granting Defendants Motions to Dismiss Count II with Prejudice the State Attorneys Demand and accompanying First Motion for Attorneys Fees was served on Plaintiff explaining the impossibility of the State Attorney being able to provide the Requested Materials Accordingly the foregoing not only shows that sanctions are justified against Plaintiff but also that there is no arguable basis in fact that the State Attorney provide the Requested Materials Plaintiffs Count I is neither novel nor complex as it merely seeks declaratory relief and because the State Attorneys lack of possession custody or control of the Requested Materials creates an impossibility of performance Plaintiff also argues that Where an issue is novel and complex sanctions under Section a may not be imposed Grove Key Marina LLC Casamayor So 3d Fla 3d DCA However despite Plaintiffs reliance on Casamayor there is nothing in the courts opinion that stands for the proposition that Plaintiff asserts Nonetheless the Fist District Court of Appeal in Martin County Conservation Alliance Martin County So 3d Fla 1st DCA stated that were we to determine that complex cases are immune from sanctions under section we would be abdicating our duty and violating Article IL section of the Florida Constitution Moreover while Plaintiffs Count II may fall into the category of being novel since it sought a private right of action under however Plaintiffs Count I does not rise to such a level as it merely seeks declaratory relief Regardless Plaintiffs arguments in support of Count I have no good faith basis or reasonable expectation of success as further set forth below Here it is apparent that Plaintiffs Count I for declaratory relief is neither novel or complex All of the available facts since the initiation of the case and thereafter have stood in stark contrast to Plaintiffs alleged well-founded belief and good faith argument in support of Count I Oddly in arguing for novelty and complexity Plaintiff heavily relies on its Count II for a private right of action under Fla Stat and whether The Palm Beach Post had constitutional and statutory standing to overcome grand jury secrecy provisions in furtherance of justice See Notably Chief Judge Marxs June Order Dismissing Count II with Prejudice already dispensed of any further argument on this matter but nonetheless Plaintiff seems compelled to continually attempt to raise the issue Nonetheless based on the dismissal with Although Plaintiff makes an attempt to continually argue Count II after it was dismissed with prejudice it is significant to note that if an action asserts a theory ofliability using more than one but separate factual scenarios in support of the theory and one of the factual scenarios meets the criteria for a fee sanction because it is not supported by law the sanction must be ordered Davis Bailynson So 3d Fla 4th DCA prejudice of Count II the only matter remaining before the Court is Plaintiffs Count I for declaratory relief Here Plaintiffs argument for novelty and complexity fails as to Count I regardless of Plaintiffs reliance on Constitutional provisions and interpretive case law along with Fla Stat to propose a good faith interpretation of existing law in support of its declaratory relief claim in Count I Def.Ex I OJ The simple fact of the matter is that Count I is neither novel or complex because Count I merely seeks declaratory relief and the State Attorneys lack of possession custody or control creates an impossibility of performance as to Count I which greatly simplifies the determination of whether the State Attorney is liable here Additionally Plaintiff was on notice and should have known that the State Attorney had no possession custody or control of the Requested Materials as of November at the earliest when the State Attorneys Motion to Dismiss was filed in response to Plaintiffs original Complaint That filing specifically stated that despite Plaintiffs allegations to the contrary Defendant Aronberg is not in custody or control of the records sought and is therefore not a proper party to this action Beyond this initial notice as set forth above based on Plaintiffs own research statutory constructive notice the State Attorneys affidavit all the pleadings and correspondence in this matter as well as through the State Attorneys office press release and social media accounts and Chief Judge Marxs extremely significant statements Plaintiff should have known that Count I of the Amended Complaint a was not supported by the material facts necessary to establish the claim or defense and/or would not be supported by the application of then-existing law to those material facts See a and Finally it is important to note that in Plaintiffs Count I for declaratory relief the courts role is not to create an extension modification or reversal of existing law or the establishment of a new law but rather is to provide an interpretation of existing law that clears up any ambiguity Here is abundantly clear that only the Clerk can release grand jury materials pursuant to a court order and it is likewise clear that not only has the State Attorney never had possession custody or control of the Requested Materials but he also lacks any legal authority to obtain and deliver the Requested Materials Furthermore as set forth in detail above and despite Plaintiffs contentions there is no arguable good faith basis in law and/or fact under a or or any reasonable expectation of success as to Plaintiffs Count I and therefore sanctions against Plaintiff are appropriate under See Minto PBLH LLC Friends of Florida Inc So 3d Fla 4th DCA Moreover under no set of facts did Plaintiff have a reasonable expectation of success against the State Attorney in obtaining the sought after documents because at no time did the State Attorney have possession custody or control over said documents In fact Plaintiff acknowledged admitted and acquiesced to the impossibility of the State Attorney providing the Requested Materials when Plaintiff dropped the State Attorney from the action on October IV THE RECORD EVIDENCE INDICATES THAT PLAINTIFF KNEW OR SHOULD HAVE KNOWN THE STATE ATTORNEY WAS NOT A PROPER PARTY THAT THERE WAS NO BASIS IN FACT OR LAW AS TO COUNT I AND THAT THERE WAS NO REASONABLE EXPECTATION OF SUCCESS Based on the foregoing arguments and record evidence set forth at length above it is apparent that at no time did the State Attorney have possession custody or control of the Requested Materials and has no legal authority to produce or disclose the Requested Materials These facts were constantly and continually communicated to Plaintiff via the State Attorney and even through Chief Judge Marx Further there is no rule or authority mandating that record evidence eixist in support of a demand when it is made Thus the State Attorney is rendered an improper party in this action based on the foregoing and the impossibility of the State Attorney producing or having the legal authority to produce the Requested Materials CONCLUSION As set forth at length above Defendant Dave Aronberg as State Attorney of Palm Beach County Florida respectfully requests that the Court enter an order granting the State Attorneys Amended Motion for Attorneys Fees in its entirety and grant such other and further relief as the Court deems necessary or proper JACOBS SCHOLZ WYLER LLC Isl Douglas A Wyler Arthur I Jacobs Esq Fla Bar No Richard Scholz Esq Fla Bar No Douglas A Wyler Esq Fla Bar No Gateway Blvd Suite Fernandina Beach Florida Fax Primary jacobsscholzlaw comcast.net Attorneys for Defendant Dave Aronberg CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 29th day of July a copy of the foregoing has been electronically filed with the Florida E-File Portal for e-service on all parties of record herein Isl Douglas A Wyler Def.Ex Def.Ex J..A.OQ13S.SCHOLZ WYLER LLC iE LAW Ol"FICCS OF JACOBS ASSOCIATE P.A ARTHU JACOes Nove ber Office of the State Attorney I 5th Judicial Circuit Attn Jeanne Howard I North Dixie Highway West Palm Beach FL A I.IMITE:D LIABILITY COMPA:!Y OF PflOFESSIO AI MSOC 225ATIONS ATTORNE:YS AT I.AW GI TE.W/IY TO AMELIA OATF:NAY BLVO SUITE FERN.uromA BEA.CH.FLoRIDA TEl 243PHON FAA NO C9O4l Re CA Florida Holdings LLC Dave Aronberg et al Case No Dear Mrs Howard RICHARD SCHOi P.A RIC HARO CHOI.Z DOUGLAS WYl P.A K..AS A WlL.CR The purpose of this _letter is to confirm that Jacobs Scholz Wyler LLC will represent you regarding the above-referenced matter Our fees will be contingent upon our success in this matter You will not be liable or required to pay any monies to our office unless we are successful in our 267representation of you regarding the above-referenced litigation and receive a court order awarding attorneys fees Accordingly should we be successful in this matter you agree to be billed for the time incurred in defending this action at our current hourly rates At this time our current hourly rates are for senior partners for other partners for associate attorneys and for paralegal time Furthermore the attorneys fees paid to our finn shall be calculated by the above listed hourly rates multiplied by the number of hours expended in defending this action or the total fee mandated and awarded by the court order herein whichever is greater By signing below you agree to the tenns as set forth above Please retum a signed and dated copy of this letter to our office If you have any questions or concerns please.contact our office On behalf of the ftnn we are proud to represent you in this matter s;ni kl!-Yf Douglas A Wyler Esq For the Finn cd-0 Date Def.Ex COPY In the Matter Of CA FLORIDA HOLDINGS vs DA VE ARONBERG HEARING June EsquireSolutions.com HEARING CA FLORIDA HOLDIN.GS vs DAVE ARONBERG IN THE CIRCUIT COURT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO CIRCUIT CIVIL DIVISION AG CA FLORIDA HOLDINGS LLC PUBLISHER OF THE PALM BEACH POST Plaintiff/Petitioner vs DAVE ARONBERG SHARON BOCK Defendant/Respondents HEARING BEFORE THE HONORABLE KRISTA MARX ZOOM CONFERENCE Wednesday June a.m a.m REMOTE ZOOM CONFERENCE Port Saint Lucie Florida Stenographically Reported By SONJA REED Court 267Reporter June EsquireSo/utions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG APPEARANCES On behalf of the Plaintiff/Petitioner GREENBERG TRAURIG P.A Century Park East Suite Los Angeles California boyajian gtlaw.com BY NINA BOYAJIAN ESQUIRE On behalf-of the Defendant/Respondent 267JACOB SCHOLZ WYLER LLC Gateway Boulevard Suite Fernandina Beach Florida doug.wyler comcast.net BY DOUGLAS A WYLER ESQUIRE On behalf of the Defendant/Respondent June CLERK COMPTROLLER PALM BEACH COUNTY P.O Box West Palm Beach Florida nfingerhut mypalmbeachclerk.com BY NICOLE FINGERHUT ESQUIRE EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG PROCEEDINGS June THE COURT We are here today for a very limited purpose Im sure the attorneys are aware of that but I just dont want there to be any confusion We are here on Defendant Dave Aronberg and Defendant Sharon Bock for the Comptroller and the State Attorneys motion to dismiss Count II Youre all acutely aware as the lawyers that this is a question of law So were not going to be diving into facts and the Court will not be deciding the merits of this motion this morning We are simply here for the sole purpose of that motion to dismiss So I just wanted to make sure that we all stay on track and were all on that same page So Ms Boyagian Ill send it to you first Maam I of course we all know that the Law I-must look at the four corners of the motion which alleges that the State Attorney David Aronberg and the clerk and comptroller Sharon Bock actually have custody and control of these grand jury proceeding Whether that is true or not is not for this court to determine because Im looking simply at the four corners of the complaint But not for nothing I think-we all-know that 267they dont 267have 267control 267and EsquireSolutions.com HEARING CA FLORIDA HOLDINGS-vs DAVE ARONBERG June custody of the records But Im going to assume that its correct because thats what has been alleged So what I first want to hear from is the attorney for Florida Holdings with regard to assuming arguendo that Florida Statute does create a cause of action what relief is it that youre seeking from in Count II specifically Not the dee action Were not here on that today what is it you hope to get a judgment MS BOYAGIAN Thank you your Honor Good morning and thank you for the privilege of appearing before this court The relief we are seeking is disclosure of the grand jury records pursuant to the Furtherance of Justice Exception to And under the First Amendment The press as your Honor is aware has a right of access under the First Amendment as a surrogate of the public THE COURT Let me just stop you for a minute Id like you to answer my specific question So I am not particularly convinced and Id like for you to address that So were not going to dive into facts or the pres standing because thats not something we re here to discuss today EsquireSo/utions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June And I have read the voluminous paperwork Ive received paperwork as and five-minute ago from some of the other parties But I deeply appreciate the fact that you sent this to me so much in advance and I have been able to spend some time with as I said the voluminous paperwork that was provided But as you know Maam we are here for such an extremely limited issue today 267and that their motion to dismiss where they state youre suing the wrong people that the court has these records And so more importantly I want you to address whether Section gives you a private cause of action against the state attorney and the clerk Again Im going to assume the facts are true that are asserted in the motion Whether they are or not because I think we can all agree were not for sure if they ever that the state attorney doesnt have these records So what is it youre seeking in Count II not the dee action I know you want the records Ive got that But in Count II specifically what do you whats the relief youre seeking and more importantly how under this statute do you get to assert a private action a private cause of 267action against-the state attorney and-the EsquireSolutions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG clerk June MS BOYAGIAN Your Honor we are aware of course that there is no expressed private right of action But that does not end the inquiry As the Florida Supreme Court stated Where a statute like forbids an act which is to Plaintiffs injury the party injured should have an action And thats the Smith Piezo case in the volume of materials that we sent you Theres no question here that the denial of the FIRST AMENDMENT right to the press is an injury which gives rise to a right of action Stated another way looking at the analysis that the Fischer Metcalf Court looked at there are three factors in determining whether there is a private right of action where a statute does not _expressly provide for one One is whether the Plaintiff is part of the class for which the statute is intended to protect second is a legislative history and the third is the underlying purposes of the statutory scheme The first factor I already addressed that the press is part of the class that the statute is EsquireSo/utions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June intended to benefit being the surrogate of the public and exercising its first amendment right The second issue of legislative history and the purpose statutory purpose are somewhat related We were unable to find much legislative history on this issue of a private right of action under the statute There is nothing that says we intend to create a private action but theres certainly nothing that says we do not want to create a private right of action What we do have is that in the same time that was reenacted a statute that pertains to the secrecy of State Grand Jury statewide grand juries was also enacted That provision which is has no exceptions for for revealing these records By contrast the legislature intentionally enacted with the Furtherance of Justice Exception If the public thr 267ough the press cant bring a private right of action to enforce that exception or to seek relief under that exception that intentionally placed exception of furthering justice is essentially rendered hollow Speaking simultaneously EsquireSo/utions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June THE COURT Okay Pause for a minute I don think anybody is saying that there isnt a cause of action or that the press doesnt have standing That not what Im asking you Im asking you how are the clerk and the state attorney the-proper defendants So you know nowhere have I said there isnt a cause of action Clearly there is Im puzzled by the procedural posturing of this case naming the state attorney And you know Im further stymied by the fact that you allege in your complaint that they have particularly David Aronberg the State Attorney that he has these records But Im going to assume thats true So Im not telling you you dont have a cause of action Im just saying okay lets run this all the way out Lets say you win and you get a judgment against the State Attorney Dave Aronberg Whats he supposed to do with it He cant release the grand jury testimony He has no authority whatsoever to do that MS BOYAGIAN Well your Honor as you stated this is a motion to 225dismiss stage and we are entitled to discovery on the issue of possession EsquireSo/utions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June custody and control My understanding is that the state attorney has asserted that he does not have possession Its not my understanding that the clerk has taken that position So the clerk may indeed be the someone who does have possession custody and control In any event we would.submit that the state attorney even it does not have actual possession at this time it might be able to have the power to control or direct the entity or persons who do have control and possession to release those to effect the judgment THE COURT So let me ask you this So the clerk is the keeper of the record But even if you got a judgment against her lets say you asserted this cause of ac ion and lets say you win and you get a judgment against the clerk The clerk cannot release grand jury testimony to you Only the court can So really all Im saying to you is I do not understand the way this case was filed or why these are the defendants 267because its impossible for them to perform I mean Im going to assume based on your motion again that they do have the records But we EsquireSolutions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June all know everyone in the room knows they do not that only the court theyre theyre with a court interpreting And only the court can release the records So if you get a judgment against either the state attorney or the clerk they cannot I mean I guess what youre saying to me is well we want to do discovery and we want them to say unequivocally I have these records or I dont have them And I mean the law is abundantly clear You cannot do it without a court determining whether in the furtherance of j_ustice the release is appropriate MS BOYAGIAN And that is a determination we re asking your Hono to make and we re asking for an order from your court THE COURT When we get to the merits of the case sure it is But again youre asking me to make that determination and for me to make a determination of whether the grand jury records should be released And the only thing were here today about is why should the clerk and the state attorney have to defend a civil action when its a possibility of performance They even if you were to win and get a judgment against them they cannot EsquireSo/utions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG give you what they dont have June So I mean its as simply as this Are you you just want to engage in some discovery for them to absolutely assert particularly the state attorney I dont.have these records look to the rules that say the moment the grand jurys over they re 267ealed and they re turned over and they cannot be released without court order So Im not addressing the merits or whether you have an exception or youre able to argue that theres an exception in the furtherance of justice Were not getting there today Im simply saying why should these two entities have to defend this lawsuit when even down the road if they win they cant give you what they dont have MS BOYAGIAN As your Honor stated Im not sure thats the case with the clerk That was not in their that issue was not stated in their papers THE COURT Let me ask you this then Do you think if you got a judgment and I or the court doepnt make the determination that the grand jury records should be released that the clerk would be able to perform Would they be able to say here you go I 267mean 267could the 267clerk just 267make that unilateral EsquireSolutions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June decision Im going to release the records sealed confidential records Does she have any authority to do that MS BOYAGIAN My understanding your Honor is that requires a court order before the records are unsealed THE COURT Exactly Exactly All right Let me hear from Mr Aronbergs attorney Mr Wyler MR WYLER Thank you your Honor May it please the Court THE COURT Good morning Sir MR WYLER Good morning Your Honor I just wanted to let you know that I spoke with counsel for the clerk Ms Fingerhut a couple of days before this hearing and we decided that I would just make the presentation for both of of us being that our arguments overlap except for the fact of who this claim whether they have the records or not which of course weve said we don have custody of the records But nonetheless our arguments overlap The Plaintiff is attempting to assert cause of action under Section That statute settled testimony not-to be disclosed exceptions So its just EsquireSo/utions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June explai_ning exceptions to the disclosure of the grand jury testimony Our position is that it doesnt set forth a cause of action and that its impossible for us to perform what theyre asking I know you said you didnt really want to get into the Furthering.Justice Exception but I know thats what theyre using as their basis to get to these But its our position that the clear unambiguous statutory language it shows that this disclosure only applies to a civil or criminal case and that within that civil or criminal Speaking simultan ously THE COURT Again sir Im sorry As I told Plaintiffs counsel MR WYLER can only be used in the defense for THE COURT Okay Were not there Were not discussing the merits of the case and Im not ready to cross that bridge Im here for a very very limited hearing today So just as I stopped Plaint ff counsel from arguing the merits of the case and whether or not the Furtherance of Justice Exception will apply in this instancei not 267even 267there yet EsquireSolutions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June Im only here for the purpose of determining whether or not the clerk and state attorney should be dismissed And I am bound by the four corners of the document which assert that you do have control and custody over it So if youll fas ion your argument with regard to that limited purpose I would appreciate it MR WYLER No problem your Honor I apologize Within the four corners of their complaint our position is that they failed to state a cause of action under It does not provide for it doesnt list that theres no element that they have adequately pled to assert a cause of action under that Theres and the only thing theyre asking for is records that we dont have Theres really not much more to it your Honor And we would ask that you would grant our motion to dismiss for failure to state a cause of action THE COURT Okay Ms Fingerhut are you still on the phone MS FINGERHUT Yes your Honor THE COURT Is there anything you wish to add MS FINGERHUT We agree with the state EsquireSolutions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June attorneys position and we also agree with what the Court has said tha.t the plain language of the statute a cause of action doesnt exist And we really cannot well be defending something without the four corners Were simply involved in this action because the clerk is the custodian of the records THE COURT Okay Thank you Maam Ms Boyagian back to you MS BOYAGIAN Your Honor Id like to note that in the Butterworth case in which the Supreme Court limited the application by saying that a witness can reveal her own testimony and prohibiting that they violate the First Amendment THE COURT Say that again please MS BOYAGIAN In the Supreme Court case the Butterworth case in which the Supreme Court ruled that cant restrict a Grand Jury witness from revealing her own testimony that would be a violation of First Amendment in that case the state attorney was in fact a party THE COURT Well I assume the state attorney that was present I mean I dont find that thats close to what were talking about here and thats whether or not I mean as know this was in Esquire_So/utions coin HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June Certainly Dave Aronberg wasnt even the state attorney then But this is about the release of records I want to give you ample opportunity and again I sincerely appreciate that all of the case law and the way that it was presented to the Court in such a timely fashion I really do And I did spend some tim with it But I want to give you whatever opportunity you want to take to convince me that it is in as to Count again Not the dee action whether these would be the appropriate defendants And you know really I want you to boil it down for me as to this lets take it all the way down the road You win You get a judgment against the clerk and the state attorney I know theres other reasons why you might have filed it this way But I just simply puzzled because I do hear what the clerk and the state attorney are saying and that is performance is impossible They don have the records and cannot absolutely Theres not even an inch of wiggle room that they could release the records even if you got a judgment It is solely a determination for the court I frankly think you know theres ways to EsquireSo/utions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June get to your records Theres ways to get confidential records But it isnt by suing the state attorney and the clerk So I just want to hear your last final argument on how Count II the appropriate defendants are the clerk and the state attorney Even assuming arguendo they have the records we know they dont you were to get a judgment against them how would you expect them to perform MS BOYAGIAN Two points your Honor One is that again the clerk did not assert in her papers that she does not have control That is a position that the State Attorneys Office has asserted It is our allegation and as your Honor noted allegations must be accepted as true as true at this stage of the proceedings Second it is also our understanding that the state attorney and the clerk intend to block access to these records So our allegation is that they do have possession custody or control which the clerk has not denied and second that they are trying to block access to the records THE COURT What do you mean What do you mean Theyre not trying to block it Theyre 267saying that 267despite 267the fact 267lets just talk about EsquireSolutions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June the clerk because we all know the state attorney doesnt have it So the clerk is the custodian of records Thats her main job Theres no doubt about it We all know that But we also know unequivocally unequivocally only the court can make the determination of whether the moving party has satisfied that there is an exception that these should be released So again I ask you she is in fact the custodian of the records is it your opinion that if you got a judgment saying clerk and comptroller gets a judgment against them that she can release the records without the court without the court weighing in without the court making that determination as required by law MS BOYAGIAN No your Honor We are asking your Honor to order the clerk to do that under your discretion THE COURT All right Mr Ms Fingerhut you wish to be heard on that MS FINGERHUT Your Honor our position is that were not trying to block access to the records EsquireSolutions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG Speaking simultaneously June THE COURT Can you hear Can the attorneys hear MS FINGERHUT custodian the records and that he cannot release the records without court THE COURT _Exactly Okay All right Anything further Mr Wyler MR WYLER No your Honor I concur with the attorneys for the clerks office that its impossible for us to release these records Theres no intent to hide them or block anything from the Plaintiff THE COURT Okay Anything further Ms Fingerhut MS FINGERHUT No your Honor THE COURT And Ms Boyagian anything further Maam MS BOYAGIAN Nothing further your Honor THE COURT Okay I will get an order out quickly Thank you folks so much And Ill see you on the next round Thanks a lot MS BOYAGIAN Thank you your Honor MR WYLER Thank you your Honor The proceedings concluded at a.m EsquireSolutions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG CERTIFICATE OF REPORTER June I Sonja Reed Court Reporter certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript pages through is a true and complete record of my stenographic notes Dated this 3rd day of June Sonja Reed Court Reporter EsquireSolutions.com Def.Ex Def.Ex IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CIRCUIT CIVIL DIVISION AG CASE NO CA FLORIDA HOLDINGS LLC PUBLISHER OF THE PALM BEACH POST Plaintiff/Petitioner vs DAVE ARONBERG SHARON RBOCK Defendant/Respondents I ORDER GRANTING DEFENDANTS MOTIONS TO DISMISS COUNT II OF PLAINTIFFS FIRST AMENDED COMPLAINT WITH PREJUDICE THIS CAUSE came before the Court on Dave Aronberg as State Attorney of Palm Beach Countys State Attorney and Sharon Bock as Clerk Comptroller of Palm Beach CotU1tys Clerk respective Motions to Dismiss Count II of CA Florida Holdings LLC Publisher of the Palm Beach Posts The Post First Amended Complaint DE This case is assigned to Division AG which is currently presided over by the Honorable Donald Hafele However the undersigned as Chief Judge of the Fifteenth Judicial Circuit presided over the June hearing on the State Attorney and Clerks Motions as the Motions implicate records of the Palm Beach County grand jury over which the Chief Judge presides See Fla Stat After careful consideration of the pleadings and the arguments presented at the hearing the Court grants the Motions for the following reasons Backgroun The Post is a media outlet which has heavily reported on the Palm Beach County criminal prosecution of Jeffrey Epstein Through the instant civil lawsuit The Post seeks irrnnediate access to the testimony minutes and other evidence presented in to the aim Beach County grand jury in Mr Epsteins case and alleges that both the State Attorney and Clerk are in possession and/or control of those documents DE First Amended Complaint at and Specifically The Post seeks declaratory judgment as to its rights to obtain the grand jury testimony in Mr Epsteins case from the State Attorney and Clerk Count I as well as Page of7 Case judgment against the State Attorney and the Clerk pursuant to section Florida Statutes which sets forth the parameters of grand jury secrecy in Florida Count II Both the State Attorney and the Clerk move to dismiss Count II of The Posts First Amended Complaint arguing that that section does not create a private cause of action DE The Court agrees Analysis In reviewing a motion to dismiss for failure to state a cause of action the court must accept the allegations of the complaint as true and construe them in the light most favorable to the plaintiff Almarante Art Institute of Fort Lauderdale Inc So 2d Fla 4th DCA The motion should only be granted if the moving party demonstrates that the plaintiff cannot provide any facts that would support a cause of action Id It follows that if the cause of action alleged is nonexistent under Florida law dismissal is warranted Cummings Dawson So 2d Fla 1st DCA affirming dismissal of cause of action not recognized by Florida law Section Florida Statutes is titled Testimony not to be disclosed exceptions and states A grand juror state attorney assistant state attorney reporter stenographer interpreter or any other person appearing before the grand jury shall not disclose the testimony of a witness examined before the grand jury or other evidence received by it except when required by a court to disclose the testimony for the purpose of a Ascertaining whether it is consistent with the testimony given by the witness before the court Determining whether the witness is guilty of perjury or Furthering justice It is unlawful for any person knowingly to publish broadcast disclose divulge or communicate to any other person or knowingly to cause or permit to be published broadcast disclosed divulged or communicated to any other person in any manner whatsoever any testimony of a witness examined before the grand jury or the content gist or import thereof except when such testimony is or has been disclosed in a court proceeding When a court orders the disclosure of such testimony pursuant to subsection for use in A criminal case it may be disclosed to the prosecuting attorney of the coiuf in which such criminal case is pending and by the prosecuting attorney to his or her assistants legal associates and employees and to the defendant and the defendants Page of Case attorney and by the latter to his or her legal associates and employees When such disclosure is ordered by a court pursuant to subsection for use in a civil case it may be disclosed to all parties to the case and to their attorneys and by the latter to their legal associates and employees However the grand jury testimony afforded such persons by the court can only be used in the defense or prosecution of the civil or criminal case and for no other purpose whatsoever Nothing in this section shall affect the attorney-client relationship A client shall have the right to communicate to his or her attorney any testimony given by the client to the grand jury any matters involving the client discussed in the clients presence before the grand jury and any evidence involving the client received by or proffered to the grand jury in the clients presence Persons convicted of violating this section shall be guilty of a misdemeanor of the first degree punishable as provided ins or by fine not exceeding or both A violation of this section shall constitute criminal contempt of court Fla Stat As the State Attof?-ey and Clerk argue and The Post concedes section makes no express provision for a civil suit or civil liability Nonetheless The Post maintains that it is entitled to seek the grand jury records via a private cause of action pursuant to the furthering justice exception to grand jury secrecy contained in subsection Therefore the limited question for this Courts consideration is whether a cause of action under section should be judicially implied See Murthy Sinha Corp So 2d Fla In advocating that it may maintain a cause of action against the State Attorney and Clerk under section The Post urges the Court to examine three factors whether the plaintiff is one of the class for whose special benefit the statute was enacted whether there is any indication either explicit or implicit of a legislative intent to create or deny s_uch a remedy and whether judicial implication is consistent with the underlying purposes of the legislative scheme Plaintiffs Opposition to Defendant Dave Aronberg As State Attorney of PahnBeach County Floridas Motion to Dismiss Count II of the First Amended Complaint at page citing Fischer Metcalf So 2d Fla 3d DCA Within these three factors The Post recognizes that there is no indication of legislative intent to create a cause of action but leans heavily on the benefit factor arguing that the furthering justice exception to Page of Case grand jury secrecy outlined in section was meant to benefit the public at large for which the press acts as a surrogate The Posts arguments are unpersuasive as to the discrete issue of whethera private cause of action lies in section To begin with The Posts reliance on the benefit factor is misplaced Per the Florida Supreme Cotnts opinion inMitrthy the question of whether a statute establishes a duty to take precautions to protect or benefit a particular class of persons is no longer detenninative on the question of whether a cause of action should be recognized Sorenson Prof Compounding Pharmacists of Pa Inc So 3d Fla 2d DCA citing Murthy So 2d at Instead whether a statutory cause of action should be judicially implied is a question of legislative intent Horowitz Plantation Gen Hosp Ltd ship So 2d Fla See also QBE Ins Corp Chalfonte Condo Apartment Assn Inc So 3d Since Murthy we have reaffinned the principle that whether a statutory cause of action should be judicially implied is a question of legislative intent Universal Prop Cas Ins Co Loftus So 3d Fla 4th DCA As is always the case when a court undertakes a legislative intent analysis the plain language of the statute is the starting and often ending point See Horowitz So 2d at When the statute is clear and unambiguous cotnts will not look behind the statutes plain language for legislative intent or resort to rules of statutory construction to ascertain intent Lo.flus So 3d at Fla 4th DCA quoting Da.niels Fla Dept of Health So 2d Fla However a single part of a statute sho_uld not be read in isolation Id Instead all parts of a statute must be read together in order to achieve a consistent whole Id quoting Forsythe Longboat Key Beach Erosion Control Dist So 2d Fla As The Post acknowledges there is a dearth of legislative history surrounding Section and the The Palm Beach Post was tumble to locate any documents capturing any legislative intent regarding the possibility of a private right of action Plaintiffs Opposition to Defendant Dave Aronberg As State Attorney of Palm Beach County Floridas Motion to Dismiss Count II of the First Amended Complaint at page While the lack of any legislative Page of Case history indicating an intent to create a private right of action is telling it is not dispositive as the plain language of the section is clear an unambiguous and therefore controls Horowitz So 2d at Examining the plain language of section in its entirety which requires the Court to look at more thanjust the furthering justice provision of section relied on by The Post it is clear that the intent of the Legislature in passing section was to limit not facilitate disclosure ofgrandjuryrecords Inno uncertainterrns the Legislature provided that no person appearing before the grand jury may disclose testimony or evidence presented except when required by a court under certain limited circwmtances Fla Stat In solidifying that its intent was to prohibit disclosure without court pennission the Legislature provided that disclosure without a court order is a criminal offense Fla Stat Therefore to the extent section could be read as imposing a duty on the State Attorney and Clerk the duty imposed is one of secrecy not disclosure In sum there is nothing in the text of section from which one can deduce that the Legislature contemplated a rreniber of the media or anyone else for that matter having a private cause of action to compel the State Attorney and Clerk to disclose grand jury records Indeed to the contrary section prohibits the State Attorney and the Clerk assuming that as pleaded by The Post they have the documents from disclosing the documents without first being ordered to do so by the court.ill Reading section as creating a private cause of action against the State Attorney and Clerk is therefore not only unsupported by the language of section but is actually paradoxical to its plain language of the statute As such this Court lacks the power to construe the unambiguous language of section in a way that would extend its express terrns and create a cause of action where none exists To do so would be an abrogation of legislative power Horowitz So 2d fuotingHolly Auld So 2d Fla Conclusion Based on the foregoing the Court finds Count II of The Posts First Amended Complaint must be dismissed with prejudice as it pursues a nonexistent cause of action tll1der section Page of Case In arriving at this conclusion the Court does not suggest The Post has no available mechanism to obtain a court order granting it access to the grand jury proceedings The Court also does not render any opinion as to whether releasing these records is appropriate for the purpose of furthering justice within the meaning of section Rather the Courts dismissal of Cotmt II is necessitated by precedent and the simple fact that a civil lawsuit against the State Attorney and Clerk under section is not the proper mechanism for The Post to pursue its goal Therefore it is hereby ORDERED AND ADJUDGED that Dave Aronberg as State Attorney of Palm Beach Countys and Sharon Bock as Clerk Comptroller of Palm Beach Countys respective Motions to Dismiss Count II of CA Florida Holdings LLC Publisher of the Palm Beach Posts First Amended Complaint are GRANTED and Count II of Plaintiffs first Amended Complaint is hereby DISMISSED with prejudice DONE AND ORDERED in West Palm Beach Palm Beach County Florida this 8th day of June I I OC pFoyn_g Lj A Krista Marx Chief Judge Krista Marx Chief Judge ill The Court notes that if there was a court order directing the State Attorney or the Clerk to disclose records and the State Attorney or the Clerk refused the remedy for disobeying a court order is contempt or in some instances a mandamus proceedings not a civil lawsuit COPIES TO No Address Available No E-mail Address Available DOUGLAS A WYLER GATEWAY BLVD doug.wyler comcast.net SUITE FERNANDINA BEACH FL Page6of7 Case MICHAEL GRYGIEL MICHAEL GRYGIEL NICOLE FINGERHUT NINA BOY AJIAN NINA BOY AJIAN STEPHEN A MENDELSOHN ESQ STATE Def.Ex Def.Ex JACOBS SCHOLZ WYLER LLC A LIMtTE:O LIABILITY COMPANY OF PROF"E:S_SIONAI ASSOCIATIONS ATTORNEYS AT I.AW GATE:WAY TO AMELIA THE LAW OFF"ICES OF JACOBS ASSOCIATE:S P.A ARTHUR I JACOBS GATEWAY Bl.VD SUITE FERNANDINA BEACH FLORIDA June VIA ELECTRONIC U.S MAIL Stephen A Mendelsohn Esq Greenburg Traurig P.A Town Center Circle Suite Boca Raton FL TEI.E:PHONE FAX NO RE CA Florida Holdings LLC Dave Aron berg ct al Palm Beach County Case No Dear Mr Mendelsohn RICHARD SCHOLZ P.A RI CHARO SCHOLZ DOUGLAS A WYI.ER P.A DOUGLAS A WYLER As you are aware our firm represents the interests of Dave Aron berg as State Attorney of Palm Beach County Florida in the above referenced matter The purpose of this letter is to demand the voluntary dismissal of your First Amended Complaint the Complaint dated January This demand is made pursuant to section Florida _Statutes As you know Section I provides Upon the courts initiative or motion of any party the court shall award a reasonable attorneys fee including prejudgment interest to be paid to the prevailing party in equal amounts by the losing party and the losing partys attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing partys attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial a Was not supported by the material facts necessary to establish the claim or defense or Would not be supported by the application of then-existing law to those material facts Today Judge Marx granted with prejudice Defendant Aronbergs Motion to Dismiss Count II of the Plaintiffs Complaint Pursuant to the Courts ruling the Plaintiffs only remaining cause of action consists of Count I for Declaratory Relief Accordingly we believe that the Complaint filed herein and its sole remaining Count for Declaratory Relief is not supported by the material facts necessary to establish the claims asserted and that your claims are not supported by the application of current law to said material facts First and foremost the Complaint is not supported by the material facts necessary to establish the i 1tw1f 1Jeftt2ii:t Wt Jf i ittf 242tit 1is jf ejt ii,l ftf tf Simply put thi i:it:tory/filie s,oiigh,i fjy":ih Pintiff/is 267.:fcf9fcts frpm";:inYJ1iiritiJh fe impo_ssibi fof:im"t1fhisoffic 242jii.pr6diifi Accordingly Defendant Aronberg is not a proper party to this action because ri6":maiter 267,what he.ind his offi i fo ha if1iossession usfody/q corifrpl Ohe re 267gue 9:fo tei-ia1s addition to the foregoing material facts that negate the claims asserted in the Complaint your claims are also not supported by the application of current law Specifically your action for declaratory relief fails based on the clear unambiguous statutory language found in Section Florida Statutes which states When such disclosure is ordered by a court pursuant to subsection I for use in a civil case it may be disclosed to all parties to the case and to their attorneys and by the latter to their legal associates and employees However the grand iury testimony afforded such persons by the court can only be used in the defense or prosecution ofthe civil or criminal case and for no other purpose whatsoever Moreover everi_ifthe_Pi in.tiffwfr io_ pre iail:i iafo_ry:actic,ri 267rv1r:-Aroiiberg yhuid be 267unii fe 267,comply_jyi_ih_ ny pb rt 267orde gtariting d_i c.losui-.fo.fthe_ qtie ted docurri n-ts be_c 265sf,neitherJvfl Arohijerl-:ifor Jhe o.m e:,of he/sfate_Atto:Ciiey t_tie Fi_ftee aida1 frci.ih _haveiJ,oss"esskfo 267ustodf;oF bnti-01 ilif2006 pstein 267rand jiirfie 267coi.ds Based on the foregoing if the Complaint is not dismissed within days of the service of this letter the enclosed Motion for Attorneys Fees will be filed and we will seek as sanctions from your client and your finn recovery of the legal expenses incurred in defending this frivolous action Plmr:;z:tt Douglas A Wyler Esq For the Firm Encl Defendants Motion for Attorneys Fees IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACHCOUNTY FLORIDA CA FLORIDA HOLDINGS LLC Publisher of the PALM BEACH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants I CASE NO DEFENDANT DA VE ARONBERGS MOTION FOR ATTORNEYS FEES Defendant DAVE ARONBERG as State Attorney of Palm Beach County Florida by and through the undersigned attorneys moves the Court pursuant to Florida Statutes Section to award.him reasonable attorneys fees for the defense of Plaintiffs First Amended Complaint the Complaint and as grounds therefor would sho that on June Plaintiff was served a copy of this Motion together with a letter from the undersigned attorney in accordance with subsection of the above Statute demanding dismissal of the Complaint at least days prior to the filing of this Motion In said letter Defendants attorney advised Plaintiff of the facts which establish that the Complaint is without support of the facts or the law WHEREFORE Defendant DA VE ARONBERG as State Att-omey of Palm Beach County Florida respectfully requests the Court enter an Order requiring Plaintiff and Plaintiffs attorneys to pay said Defendants attorneys fees incu"rred herein after service of this Motion CERTIFICATE OF SERVICE I hereby certify that on this __ day the foregoing was electronically filed via the Florida E-File Portal for electronic service on the parties of record herein JACOBS SCHOLZ WYLER LLC Isl Douglas A Wyler Arthur I Jacobs Esquire Fla Bar No Richard Scholz Esquire Fla Bar No Douglas A Wyler Esquire Fla Bar No Gateway Blvd Suite Fernandina Beach Florida jacobsscholzlaw comcast.net Attorneys for Defendant Def.Ex Def.Ex IJ GreenbergTraurig Stephen A Mendelsohn Tel Fax mendelsohns gtlaw.com June Douglas A Wyler Jacob Scholz Wyler LLC Gateway Blvd Suite Fernandina Beach Fl Re CA Florida Holdings LLC Dave Aronberg et al Case No Dear Mr Wyler We are in receipt of your letter of June with your proposed Fla Stat section l05motion In your letter and your proposed motion you assert that CA Florida Holdings LLC and the law firm of Greenberg Traurig P.A should be liable for the attorneys fees to be incurred by State Attorney Aronberg after the date of your letter Your letter cites to Fla Stat sections I a and for support As shown below there is no basis for a Fla Stat section motion and we expect that if the State Attorney were to make such a motion the court should deny it Your letter omits a citation to section Subsection a provides that sanctions may not be awarded where there is a good faith argument for the extension modification or reversal of existing law or the establishment of new law as it is applied to the material facts with a reasonable expectation of success We have such a good faith argument Contrary to your analysis of Fla Stat section there are actually three instances where a court may order the release of grand jury materials As we argue the court may order release in furtherance of justice There are few cases in Florida reviewing this provision and its scope It is an open and valid question as to whether the court may order release of grand jury transcripts to the media under both the statute and the First Amendment to the US Constitution i_n furtherance of justice The statutory language you cite refers to instances where a person is seeking grand jury materials for use in a civil or in a criminal case _In these limited situatiot1s the statute_ allows for 1N zffi.il Js.lw.iffgff ji faij itit 267ijff.Jt1i1 titir 1ii tri Court acknowledged at the June hearing includes The Palm Beach Post,thi_it_:tlie_ 265tijtpry _Greenberg.fraurig,_ P._A I A.t_torneys at Law_ Town Center Circle I Suite I Boca Raton Florida I I Albany Amsterdam Atlanta Austin BerHn lloca Raton Boston Chicago Dallas Delawat Denwr Fot1 1.,l!derdalc Houston Las Vegas London Las Angeles Mexico CitlMiami Milan Minneapolis Naslwille New Jersey New York Northern Virginia Ornnge Conni Orlando Philadelphia Phoenix Sacra1nen10 San Francisco Scou Shanghai Silicnn Valley Tullahassee Tampa Te!Avi 225:Tokyo Warsaw:washington D.C West Palm Beach Westchester County w.gtlaw.com Correspondence to Douglas A Wyler June Page2 tj mJt fi9ij;.y9UJfii If tJft No reported Florida case has addressed this issue and there is a good faith basis for our view of Fla Stat section lEti li1:itfllidtil li ti!i!li i;iJ the matter The State Attorney was named as a party not simply as a custodian of grand jury records The State Attorney was named in his official capacity as his office has as its primary interest the protection ofits grand jury system Italics in original In re Grand Jury Proceedings 3d I I th Circuit In that case the US petitioned a state judge to order the State Attorney to turn over grand jury transcripts The State Attorney argued against their release citing to Fla Stat section Later a federal grandjury S1:9PP e.d __ f..9t1fny ilif tW!ilillif li!i ille!1ittilliJ/f i should also be noted that the State 267Attorney moved to quash the subpoena arg t.Jt 1,1Jilil!iililif JWJl li!illif iif if iilli1 tjf;tlj.fgffipqj These are some of the same reasons why the State Attorney was named in this case Also assuming the State Attorney does not have physical possession of the grand jury materials there is nothing in Florida law that prc hibits th State Attom y.fro_1_r_equesti11gJhat tC:ler illillttli?lilJiltilltf I i!istah ofth jfhiifn 242vefl:dbiie so/If the Clerk has such a log then its contents should be 267iscove bie cit rida liic records laws Greenberg Traurig P.A I Attorneys at Law w.gtlaw.com Correspondence to Douglas A Wyler June Page3 For these reasons we decline your Fla Stat section demand that the case be dismissed against the Office of the State Attorney We expect that your deman will be withdrawn Thank you Very truly yours ls/Stephen Mendelsohn Stephen Mendelsohn SAM:ls ACTIVE Greenberi Traurig P.A I Attorneys at Law w.gtlaw.com Def.Ex Def.Ex IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CA FLORIDA HOLDINGS LLC Publisher of the PALM BEACH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants I CASE NO DEFENDANT DAVE ARONBERGS MOTION FOR ATTORNEYS FEES Defendant DA VE ARON BERG as State Attorney of Palm Beach County Florida by and through the undersigned attorneys moves the Court pursuant to Florida Statutes Section I to award him reasonable attorneys fees for the defense of Plaintiffs First Amended Complaint the Complaint and as grounds therefor would show that on June Plaintiff was served a copy of this Motion together with a letter from the undersigned attorney in accordance with subsection of the above Statute demanding dismissal of the Complaint at least days prior to the filing of this Motion In said letter Defendants attorney advised Plaintiff of the facts which establish that the Complaint is without support of the facts or the law WHEREFORE Defendant DA VE ARONBERG as State Attorney of Palm Beach County Florida respectfully requests the Court enter an Order requiring Plaintiff and Plaintiffs attorneys to pay said Defendants attorneys fees incurred herein after service of this Motion CERTIFICATE OF SERVICE I hereby certify that on this 1st day July the foregoing was electronically filed via the Florida E-File Portal for electronic service on the parties of record herein JACOBS SCHOLZ WYLER LLC Isl Douglas A Wyler Arthur I Jacobs Esquire Fla Bar No Richard Scholz Esquire Fla Bar No Douglas A Wyler Esquire Fla Bar No Gateway Blvd Suite Fernandina Beach Florida jacobsscholzlaw comcast.net Attorneys for Defendant Dave Aron berg Def.Ex Def.Ex IN THE CIR UIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CA FLORIDA HOLDINGS LLC Publisherofthe PALM BEACH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants I CASE NO I AFFIDAVIT OF DAVID ARONBERG STATE OF FLORIDA COUNTY OF PALM BEACH Before me the undersigned authority personally appeared DAVID ARONBERG being first duly sworn states My name is David Dave Aronberg and I am the State Attorney for the Fifteenth Judicial Circuit/Palm Beach County Florida since and a Defendant in the above-captioned inatter Plaintiff is seeking declaratory relief pursuant to Fla Stat and the Courts inherent authority allowing Plaintiff access to the testimony minutes and other evidence presented in to the Palm Beach County grand jury the Requested Materials and to use those materials for the purpose of informing the public Despite PlaintifPs above-described action for declaratory relief neither myself nor the Office of the State Attorney for the Fifteenth Judicial Circuit SAO is in control custody or possession of the Requested Materials As such the declaratory relief sought by the Plaintiff seeks materials that are impossible for me or my office to produce To be clear neither myself nor the SAO has the legal authority to obtain and deliver the Requested Materials I have repeatedly made these facts evident to the Plaintiff and the public through not only the pleadings and correspondence in this matter but also through an office press release and my public social media accounts Despite the contentions of Plaintiff neither myself nor the SAO has-the authority to demand that the Clerk grarit the SAO access to grand jury materials after a criminal case has concluded Moreover during my administration neither myself nor my office has accessed grand jury materials from the Clerks office in this or any other instance As provided in section Florida Statutes the Clerk has sole custody and possession of the Requested Materials which can only be released by the Clerk pursuant to an order of the Court FURTHER AFFIANT Def.Ex Def.Ex Filing E-Filed PM CA FLORIDA HOLDINGS LLC Publisher of THE PALM BEACH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County,-Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO DIVISION AG PLAINTIFF CA HOLDINGS LLCS NOTICE OF DROPPING STATE ATTORNEY DAVE ARONBERG Plaintiff CA HOLDINGS LLC pursuant to Fla Civ hereby notifies the parties that it has dropped State Attorney Dave Aronberg from the above case Respectfully submitted GREENBERG TRAURIG P.A Attorneys for CA Florida Holdings LLC Publisher of The Palm Beach Post Stephen A Mendelsohn Esq I East Las Olas Boulevard Suite Boca Raton Florida Telephone Facsimile By Isl Stephen A Mendelsohn STEPHEN A MENDELSOHN Florida Bar No mendelsohns mgtlaw com smith gtlaw com FLServicel gtlaw.com By Michael Grygiel MICHAEL GRYGIEL Admitted Pro Hae Vice State St 6th Floor Albany New York Telephone Facsimile grvgielm w.gtlaw.com By Isl Nina Boyaiian NINA BOY AJIAN Admitted Pro Hae Vice I Century Park East Suite Los Angeles California Telephone Facsimile I bovai iann a ctlaw com ri veraal gtlaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day of October a true and correct copy of the foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system which will send a notice of electronic service for all parties ofrecord herein ACTIVE Isl Stephen A Mendelsohn STEPHEN A MENDELSOHN Def.Ex Def.Ex IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CA FLORIDA HOLDINGS LLC Publisher of the PALM BEACH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants CASE NO DEFENDANT DAVE ARONBERGS AMENDED MOTION FOR ATTORNEYS FEES Defendant DAVE ARONBERG as State Attorney of Palm Beach County Florida by and through the undersigned counsel hereby moves this Honorable Court pursuant to Rule Fla Civ to enter an award of attorneys fees in his favor against Plaintiff CA FLORIDA HOLDINGS LLC publisher of the PALM BEACH POST and in support thereof states the following BASIS FOR A WARDING ATTORNEYS FEES On November CA FLORIDA HOLDINGS,.LLC publisher of the PALM BEACH POST Plaintiff filed a complaint against DA VE ARONBERG as State Attorney of Palm Beach County Florida the State Attorney or Defendant Aronberg and SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida the Clerk The basis of the action was asking the Court to order the State Attorney and the Clerk to disclose the Jeffrey Epstein grand jury materials the Requested Materials pursuant to Fla Stat On December the State Attorney filed his Motion to Dismiss then on December the Clerk also filed a Motion to Dismiss In response Plaintiff filed its First Amended Complaint on January which in addition to its original claim under Fla Stat Count II added a claim for Declaratory Relief Count I that sought an order declaring that the State Attorney and the Clerk.disclose the Requested Materials to Plaintiff for the purpose of informing the public On January both the State Attorney and the Clerk filed their Answer to the First Amended Complaint and Motion to Dismiss Count II Answer/Motion to Dismiss Notably the State Attorneys Answer/Motion to Dismiss asserted its right to attorneys fees for defending the action and requested such relief from the Court On June the Court entered its Order Granting Defendants Motions to Dismiss Count II of Plaintiffs First Amended Complaint with Prejudice Order Immediately following the Courts Order on June the State Attorney through the undersigned counsel served Plaintiff with a demand pursuant to Fla Stat to voluntary dismiss/withdraw the First Amended Complaint and the claims against the State Attorney along with a Motion for Attorneys Fees Demand See Exhibit A Specifically because of the Courts Order only Count I of Plaintiffs Amended Complaint remained which sought Declaratory Relief under Fla Stat Here in properly serving his Demand on Plaintiff the State Attorney also properly put Plaintiff on notice that he would seek sanctions by filing the Motion for Attorneys Fees if Plaintiff failed to dismiss the remainder ofits First Amended Complaint within days of service of the Demand and Motion for Attorneys Fees On June Plaintiffs counsel sent a response to the Demand refusing to withdraw the remainder of the First Amended Complaint See Exhibit Florida Statutes states the following A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless within days after service of the motion the challenged paper claim defense contention allegation or denial is not withdrawn or appropriately corrected Accordingly after receiving Plaintiffs June response refusing to withdraw the remainder of the First Amended Complaint and waiting the prerequisite days after service of the motion the State Attorneys Motion for Attorneys Fees was filed with this Court on July See Exhibit Thereafter on August the State Attorney filed his Motion for Summary Judgment Motion and proceeded on October to file a Motion to Set Hearing on the State Attorneys Motion Motion to Set after it became clear that there would be no resolution of this matter without the Courts intervention Nonetheless later the same day rather than setting and participating in a hearing on the merits as to State Attorneys Motion Plaintiff filed its Notice of Dropping the State Attorney Notice from the instant case See Exhibit As a consequence of filing its Notice Plaintiff has effectively made an admission that its allegations against the State Attorney have no basis in fact or law An essential distinction between a notice of dropping a party and a voluntary dismissal is that the fonner concludes the action as to the dropped party while the latter is generally utilized to conclude the action in its entirety Carter Lake County So 2d Fla 5th DCA Specifically Plaintiffs Notice states Plaintiff sic pursuant to Fla Civ hereby notifies the parties that it has dropped State Attorney Dave Aronberg from the above case Rule Fla Civ states Dropping Parties Parties may be dropped by an adverse party in the manner provided for voluntary dismissal in rule a subject to the exception stated in that rule If notice of lis pendens has been filed in the action against a party so dropped the notice of dismissal shall be recorded and cancels the notice of lis pendens without the necessity of a court order Parties may be dropped by order of court on its own initiative or the motion of any party at any stage of the action on such terms as are just Rule a Fla Civ Voluntary Dismissal states By Parties Except in actions in which property has been seized or is in the custody of the court an action a claim or any part of an action or claim may be dismissed by plaintiff without order of court A before trial by serving or during trial by stating on the record a notice of dismissal at any time before a hearing on motion for summary judgment or ifnone is served or if the motion is denied before retirement of the jury in a case tried before a jury or before submission of a non jury case to the court for decision or by filing a stipulation of dismissal signed by all current parties to the action Unless otherwise stated in the notice or stipulation the dismissal is without prejudice except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action base on or including the same claim Notably Rule expressly incorporates the procedural aspects of Florida Rule of Civil Procedure a governing voluntary dismissal by providing that parties may be dropped in the manner provided for voluntary dismissal in rule a subject to the exception stated in that rule Siboni Allen So 3d Fla 5th DCA Likewise because Rule specifies that a party is dropped in the manner provided for voluntary dismissal in Rule a the Siboni court concluded that the manner includes the same entitlement to costs and attorneys fees which would have been enjoyed had the dismissal occurred entirely under Rule a Id at Accordingly the Siboni court held that a party dropped from litigation under rule is subject to the time limitation contained in rule governing service of a motion seeking a judgment for costs and attorneys fees Id Although Plaintiff filed its Notice the clai asserted by Plaintiff have been since the filing of its initial complaint completely without support of the facts or the law At their very core all of Plaintiffs claims are based on the presumption that the State Attorney has the authority to disclose the Requested Materials Nonetheless Section Florida Statutes makes clear that Plaintifrs Requested Materials can only be released by the Clerk pursuant to a court order The stenographic records notes and transcriptions made by the court reporter or stenographer shall be filed with the clerk who shall keep them in a sealed container not subject to public inspection The notes reeords and transcriptions are confidential and exemptfiom the provisions of I ands a Art I of the State Constitution and shall be released bv the clerk only on request by a grand jury for use by the grand jury or on order othe court pursuant to Section Florida Statutes The State Attorney has no objection to the Clerk producing and disclosing the Requested Materials should the Court grant an order to that effect however it is impossible for the State Attorney to comply with the relief sought by Plaintiff in its remaining claim for declaratory relief as he does not possess or control the Requested Materials and is statutorily barred from any disclosure Although the State Attorney was prepared to make his argument to the Court Plaintiff decided instead to drop him as a party Despite Plaintiffs decision the Florida Rules of Civil Procedure and the above authorities make clear that because Rule specifies that a party is dropped in the manner provided for voluntary dismissal in Rule a it therefore operates as an adjudication on the merits See Siboni Allen So 3d Fla 5th DCA Riile a Fla Civ Consequently the filing of Plaintiffs Notice triggered Rule Fla Civ and therefore Under the legislature has expressed its unequivocal intent that where a party files a meritless claim suit or appeal the party who is wrongfully required to expend funds for attorneys fees is entitled to recoup those fees Martin County Conservation Alliance Martin County So 3d Fla 1st DCA finding that Courts are not at liberty to disregard the legislative mandate that co 267urts shall impose sa.nctions in cases without foundation in material fact or law The word shall in Fla Stat evidences the legislative intent to impose a mandatory penalty to discourage baseless claims by placing a price tag on losing parties who engage in these activities Section expressly states courts shall assess attorneys fees for bringing or failing to dismiss baseless claims or defenses In fact Section clearly and explicitly confers upon the trial court the authority to award attorneys fees to the prevailing party upon the courts initiative if the court finds that the losing party knew or should have known that a claim or defense when initially presented to the court or at any time before trial as not supported by the material facts necessary to establish the claim or defense Koch Koch So 3d Fla 2d DCA The simple fact of the matter is that Plaintiff failed to withdraw its Amended Complaint against the State Attorney within the 21-day period provided for in section and therefore the State Attorney was permitted to file his Motion for Attorneys Fees as sanctions Furthennore based on the impossible nature of Plaintiffs demand of the State Attorney it was proper to demand withdrawal of Plaintiffs remaining claim for declaratory relief and serve the Motion for Attorneys Fees due to Plaintiffs claim lacking any basis in fact or law Again neither the State Attorney nor his office has possession custody or control of the Requested Materials Likewise the State Attorney has no objection and never has had any objection to the Clerk releasing the records sought by Plaintiff as disclosure of the Requested Materials sought by Plaintiff lies solely within the providence of the Clerk pursuant to an order of the Court Consequently the State Attorney is entitled to recover all of his reasonable attorneys fees in defending this suit by virtue of Florida Statutes REASONABLENESS AND AMOUNT OF ATTORNEYS FEES From the service of the Demand to the date of this motion the attorneys for the State Attorney have rendered hours of legal services for a total amount of in defending this action See time sheets detailing the amount of hours by each timekeeper the timekeepers hourly rate and a description of the tasks done during those times on attached Exhibit Of that amount the undersigned has been paid as the engagement with the State Attorney is on a pure contingency fee basis The undersigned expects to incur an additional hours at an hour in preparing for and attending the hearing on attorneys fees Thus the total amount of hourly attorneys fees the State Attorney is seeking is hours for a total of As further set forth below the State Attorney also seeks a multiplier of _Vhich when applied makes the grand total attorneys fees as sanctions sought herein An Affidavit of Attorneys Fees is attached hereto as Exhibit which details and breaks down the attorneys fees sought herein The State Attorney would offer the following facts and arguments as they relate to the factors promulgated in Rule of the Rules Regulating the Florida Bar and Florida Patients Compensation Fund Rowe So 2d Fla Factor A the time and labor required the novelty complexity and difficulty of the questions involved and the skill requisite to perform the legal service properly the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer the fee or rate of fee customarily charged in the locality for legal services of a comparable or similar nature the significance of or amount involved in the subject matter of the representation and the results obtained the time limitations imposed by the client or by the circumstances and as between attorney and client any additional or special time demands or requests of the attorney by the client the nature and length of the professional relati_onship w_ith_ the_ client Facts and Arguments The time involved by counsel was substantial consuming nearly hours of legal work Moreover the issues in controversy were novel and complex in that Plaintiff sought to create a new private statutory cause of action under Florida Statute implicated several 1st Amendment issues and further sought declaratory relief pursuant to said Statute Finally this litigation has been ongoing for nearly a year and required skill and knowledge in these areas of the law Because of the amount of time involved in this litigation and considering the relative small size of the firm representing the State Attorney the undersigned attorneys were forced to turn away or delay representing other clients especially during critical stages of the litigation due to time required in the instant matter The base fees consisting of for Mr Wylers services and for Mr Jacobs services are reasonable for lawyers in their respective communities possessing equal experience and skill The outcome of this case is of great public significance to the State of Florida as it pertains to the disclosure of grand jury records and the role of the State Attorney concerning such disclosure Here the results obtained were the maximum sought by Defendant Aronberg as he was dismissed from the case albeit not within the time constraints of the safe-harbor provision within Fla Stat There were not any extraordinary limitations imposed by the client however Defendant Aronberg expected and received zealous representation with the desire that the case be dispensed of quickly and efficiently As general counsel for the FP AA the undersigned counsel has represented Defendant Aron berg since the beginning of his tenure as _State_ A_ttorney i_n civ_il 1atters t_hroughou_t _th S_tatc of Florida_as well as matters before the Florida Legislature the experience This representation required experience in a field available to few reputation diligence and lawyers which included defending the State Attorney from claims ability of the lawyer or of a media entity and lawyers from multiple states regarding the lawyers performing the release ofinformation with a nationwide interest Accordingly the service and the skill undersigned counsel conducted the representation with skill and expertise or efficiency of efficiency wherein Defendant Aronberg was dismissed from the effort reflected in the action prior to any hearing on the merits before the court actual providing of such services whether the fee is The fee arrangement herein was entirely contingent wherein fixed or contingent and if obtaining a fee was conditioned upon prevailing and obtaining an fixed as to the amount or order awarding fees rate then whether the clients ability to pay rested to any significant degree on the outcome of the representation JUSTIFICATION FOR MULTIPLIER Defendant Aronberg was able to proceed with this litigation only if counsel would receive a court order a warding contingency based attorneys fees upon achievement of a successful outcome in this case See Exhibit Given this and the fact that counsel risked a total hours of work for no of which hours is subject to the Demand Defendant Aronberg submits that multiplier of would be appropriate in this case Based upon the hours expended the hourly rates and a multiplier Defendant Aronberg respectfully requests an award of attorneys fees as sanctions as stated herein With regard to the application of a multiplier the court must analyze the three factors set forth in Standard Guaranty Insurance Co Quanstrom So Fla whether the relevant market requires a contingency fee multiplier to obtain competent counsel whether the attorney was able to mitigate the risk of nonpayment in any way and whether any of the factors set forth in Rowe are applicable especially the amount involved the results obtained and the type of fee arrangement between the attorney and his client See Citizens Prop Ins Corp Pulloquinga So 3d Fla 3d DCA Here as to the first factor there was no other counsel in the relevant market who would agree to represent Defendant Aronberg under the contingency fee agreement needed due to the financial situation of the Office of the State Attorney as a public entity funded entirely by the taxpayers of the State of Florida Although Risk Mitigation within the Florida Department of Financial Services and the Office of the Attorney General indeed represent the State Attorney in some instances this case was not picked up by either and Defendant Aronberg was left needing representation by other private counsel Although the undersigned counsel and his law firm are General Counsel for the Florida Prosecuting Attorneys Association Inc FPAA the instant matter did not fall within the scope of representation for the FPAA and required a separate engagement between Defendant Aron berg and the undersigned counsel Accordingly the undersigned counsel and his law firm agreed to represent Defendant Aronberg on a contingency fee basis and to try the case to final judgment considering that there was no other counsel willing to represent Defendant Aronberg on such terms With respect to the other factors to be considered in applying a multiplier as set forth in Quanstrom here Defendant Aronberg was unable to mitigate against non-payment of fees because as a purely taxpayer funded entity the Office of State Attorney had no other means by which to pay the undersigned counsel Additionally Defendant Aronberg meets each of the individual Rowe factors as set forth in the table located above on pages Accordingly based on the foregoing the application of a multiplier herein is proper In this vein the Rowe court set guidelines for the size of a multiplier as follows Based on our review of the decisions of other jurisdictions and commentaries on the subject we conclude that in contingent fee cases the lodestar figure calculated by the court is entitled to enhancement by an appropriate contingency risk multiplier in the range from to When the trial court determines that success was more likely than not at the outset the_ multiplier should be when the likelihood of success was approximately even at the outset the multiplier should be and when success was unlikely at the time the case was initiated the multiplier should be in the range of to Florida Patients Compensation Fund Rowe So 2d Fla Additionally the Quanstrom court confirmed and modified the Rowe approach as follows However we find that the multiplier in Rowe should be modified as follows If the trial court determines that success was more likely than not at the outset it may apply a multiplier of to if the trial court deterinines that the likelihood of success was approximately even at the outset the trial judge may apply a multiplier of to and if the trial court determines that success was unlikely at the outset of the case it may apply a multiplier to Accordingly our Rowe decision is modified to allow a multiplier from to Standard Guaranty Insurance Co Quanstrom So 2d Fla Thus based upon all of the foregoing factors Defendant Aronberg respectfully submits that a multiplier is appropriate for this representation CERTIFICATION OF GOOD FAITH EFFORT TO RESOLVE The undersigned certifies that a good faith effort was made to resolve the issues raised in this motion by agreement of the parties The parties were unable to resolve by agreement the issues of entitlement to fees or the amount of fees WHEREFORE Defendant DA VE ARONBERG as State Attorney of Palm Beach County Florida prays that this Honorable Court will enter an Order awarding Defendant Aronberg his reasonable attorneys fees with a multiplier of against the Plaintiff CA FLORIDA HOLDINGS LLC publisher of the PALM BEACH POST in the amount of CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 9th day of November a copy of the foregoing Defendant Dave Aronbergs Amended Motion for Attorneys Fees has been electronically filed with the Florida E-File Portal for e.:.service on all parties ofrecord herein JACOBS SCHOLZ WYLER LLC Isl Douglas A Wyler Arthur I Jacobs Esq Fla Bar No Richard Scholz Esq Fla Bar No Douglas A Wyler Esq Fla Bar No Gateway Blvd Suite Fernandina Beach Florida Fax Primary jaco bsscholzla comcast.net Attorneys for Defendant Dave Aronberg EXHIBIT A EXHIBIT A Friday September at Eastern Daylight Time Subject SERVICE OF COURT DOCUMENT CASE NO CA FLORIDA HOLDINGS LLC DAVE ARON BERG JACOBS SCHOLZ WYLER LLC A LIM ITE:O LIABILITY COMPANY OF PROFES_SIONAL ASSOCIATIONS ATTORNEYS AT LAW GATf:WAY TO AMELIA THE LAW OFFICES OF JACOBS ASSOCIATES P.A ARTHUR I JACOBS GATE:WAY BLVD SUITE i?Ol FER A.IDlNA BEACH FLORIDA June VIA ELECTRONIC U.S MAIL Stephen A Mendelsohn Esq Greenburg Traurig P.A Town Center Circle Suite Boca Raton FL TE:LE:PHONE FAX NO RE CA Florida Holdings LLC Dave Aronberg et al Palm Beach County Case No Dear Mr Mendelsohn RICHARD SCHOLZ P.A RIC HARO SCHOLZ OOUGLAS A WYLE:R P.A DOUGLAS A WYLE;R As you are aware our finn represents the interests of Dave Aronberg as State Attorney of Palm Beach County Florida in the above referenced matter The purpose of this letter is to demand the voluntary dismissal of your First Amended Complaint the Complaint dated January This demand is made pursuant to section Florida Statutes As you know Section provides I Upon the courts initiative or motion of any party the court shal I award a reasonable attorneys fee including prejudgment interest to be paid to the prevailing party in equal_amounts by the losing party and the losing partys attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing partys attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial a Was not supported by the material facts necessary to establish the claim or defense or Would not be supported by the application of then-existing law to those material facts Today Judge Marx granted with prejudice Defendant Aronbergs Motion to Dismiss Count II of the Plaintiffs Complaint Pursuant to the Courts ruling the Plaintiffs only remaining cause of action consists of Count I for Declaratory Relief Accordingly we believe that the Complaint filed herein and its sole remaining Count for Declaratory Relief is not supported by the material facts necessary to establish the claims asserted and that your claims are not supported by the application of current law to said material facts First and foremost the Complaint is not supported by the material facts necessary to establish the claims asserted because neither Defendant Aronberg nor The Office of the State Attorney for the Fifteenth Judicial Circuit is in custody or control of the grand jury materials sought therein Simply put the declaratory relief sought by the Plaintiff seeks records from my client that are impossible for him or his office to produce Accordingly Defendant Aronberg is not a proper party to this action because no inatter what he and his office do not have possession custody or control of the requested materials In addition to the foregoing material facts that negate the claims asserted in the Complaint your claims are also not supported by the application of current law Specifically your action for declaratory relief fails based on the clear unambiguous statutory language found in Section Florida Statutes which states When such disclosure is ordered by a court pursuant to subsection I for use in a civil case it may be disclosed to all parties to the case and to their attorneys and by the latter to their legal associates and employees However the grand iury testimony afforded such persons by the court can only be used in the defense or prosecution of the civil or criminal case and for no other purpose whatsoever Moreover even if the Plaintiff were to prevail in the declaratory action Mr Aronberg would be unable to comply with any court order granting disclosure of the requested documents because neither Mr Aronberg nor The Office of the State Attorney for the Fifteenth Judicial Circuit have possession custody or control of the Epstein grand jury records Based on the foregoing if the Complaint is not dismissed within days of the service of this letter the enclosed Motion for Attorneys Fees will be filed and we will seek as sanctions from your client and your firm recovery of the legal expenses incurred in defending this frivolous action Pl 225ccf Douglas A Wyler Esq For the Firm Encl Defendants Motion for Attorneys Fees IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CA FLORIDA HOLDINGS LLC Publisher of the PALM BEACH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants I CASE NO DEFENDANT DAVE ARONBERGS MOTION FOR ATTORNEYS FEES Defendant DA VE ARONBERG as State Attorney of Palm Beach County Florida by and through the undersigned attorneys moves the Court pursuant to Florida Statutes Section to award him reasonable attorneys fees for the defense of Plaintiffs First Amended Complaint the Complaint and as grounds therefor would show that on June Plaintiff was served a copy of this Motion together with a letter from the undersigned attorney in accordance with subsection fthe above Statute demanding dismissal of the Complaint at least days prior to the filing of this Motion In said letter Defendants attorney advised Plaintiff of the facts which establish that the Complaint is without support of the facts or the law WHEREFORE Defendant DA VE ARONBERG as State Attorney of Palm Beach County Florida respectfully requests the Court enter an Order requiring Plaintiff and Plaintiffs attorneys to pay said Defendants attorneys fees incurred herein after service of this Motion CERTIFICATE OF SERVICE I hereby certify that on this __ day the foregoing was electronically filed via the Florida E-File Portal for electronic service on the parties of record herein JACOBS SCHOLZ WYLER LLC Isl Douglas A Wyler Arthur I Jacobs Esquire Fla Bar No Richard Scholz Esquire Fla Bar No Douglas A Wyler Esquire Fla Bar No Gateway Bivd Suite Fernandina Beach Florida jaco bsscholzlaw comcast.net Attorneys for Defendant EXHIBIT EXHIBIT."B Ii GreenbergTraurig Stephen A Mendelsohn Tel Fax rnendelsohns gtlaw.com June Douglas A Wyler Jacob Scholz Wyler LLC Gateway Blvd Suite Fernandina Beach Fl Re CA Florida Holdings LLC Dave Aronberg et al Case No Dear Mr Wyler We are in receipt of your letter of June with your proposed Fla Stat section motion In your letter and your proposed motion you assert that CA Florida Holdings LLG and the law firm of Greenberg Traurig P.A should be liable for the attorneys fee.s to be incurred by State Attorney Aronberg after the date of your letter Your letter cites to Fla Stat sections a and for support As shown below there is no basis for a Fla Stat section motion and we expect that if the State Attorney were to make such a motion the court should deny it Your letter omits a citation to section Subsection a provides that sanctions may not be awarded where there is a good faith argument for the extension modification or reversal of existing law or the establishment of new law as it is applied to the material facts with a reasonable expectation of success We have such a good faith argument Contrary to your analysis of Fla Stat section there are actually three instances where a court may order the release of grand jury materials As we argue the court may order release fo furtherance of justice There are few cases in Florida reviewing this provision and its scope It is an open and valid question as to whether the court may order release of grand jury transcripts to the media under both the statute and the First Amendment to the US Constitution in furtherance of justice The statutory language you cite refers to instances where a person is seeking grand jury materials for use in a civil or in a criminal case In these limited situations the statute allows for such uses and for no other reason However the statute does not state as you assert that where the media seeks grand jury materials based upon its constitutional standing which the Circuit Court acknowledged at the June hearing includes The Palm Beach Post that the statutory Greenberg Trau1ig P.A I Attorneys at Law s1o i r.Ci cie i:i iie.4ti i rid i 56.d3s:iogg Albany Amsterdam Atlanta Austin Berlin Boca Raton Boston Chicago Dallas Delaware Denwr Fo11 Lauderdale Houston I.as Vegas London Los Angel,,s Mexico City:r.fiami Milan l,Hnneapolis Nash ille New Jersey New York No11hern Virginia Orange County Orlando Philaclelph ia Pho,mix Sacrn mento San Francisco Seoul Shanghai Silicon Valley Tallahassee Tampa Tel Avi Tokyo Warsaw:washington D.C Wc Palm Beach Westchester County w.gtlaw.com Correspondence to Douglas A Wyler June Page2 use limitation you cite applies No reported Florida case has addressed this issue and there a good faith basis for our view of Fla Stat section Your letter also argues that sanctions are applicable because the State Attorney has alleged that it does not possess the Jeffrey Epstein grand jury transcripts This allegation is also contained in the State Attorneys Answer Assuming that the State Attorney does not currently have physical possession of the Epstein grand jury materials which has yet to be demonstrated this does not end the matter The State Attorney was named as a party not simply as a custodian of grand jury records The State Attorney was named in his official capacity as his office has as its primary interest the protection of its grand jury system Italics in original In re Grand Jury Proceedings 3d th Circuit In that case the US petitioned a state judge to order the State Attorney to turn over grand jury transcripts The State Attorney argued against their release citing to Fla Stat section Later a federal grand jury subpoenaed the Broward County State Attorney for delivery of state grand jury testimony The Broward State Attorney advised the federal court that it would produce the transcripts thereby demonstrating that while it may not have physical possession of the materials he had legal authority to obtain and deliver them It should also be noted that the State Atto,rney moved to quash the subpoena arguing that it was unlawful under Florida law and Fla Stat section This case indicates that where one seeks grand jury materials the relevant State Attorney is a necessary party in order to protect the grand jury that the Office of State Attorney supervised and to make arguments if need be against release of the grand jury materials These are some of the same reasons why the State Attorney was named in this case Also assuming the State Attorney does not have physical possession of the grand jury materials there is nothing in Florida law that prohibits the State Attorney from requesting that the Clerk provide copies to the State Attorney Chapter Fla Stats does not contain a prohibition against a State Attorney demand that the Clerk grant his office access to grand jury materials even after a criminal case has concluded Upon infonnation and belief the Clerks office maintains a log that tracks release of grand jury materials to the State Attorney upon its request Please confirm whether the State Attorney has accessed grand jury materials from the Clerks office in other instances or that it has never done so If the Clerk has such a log then its contents should be discoverable or subject to Florida Public records laws Greenberg Traulig P.A Attorneys at Law ww.v.gtlaw.com Correspondence to Douglas A Wyler June Page For these reasons we decline your Fla Stat section demand that the case be dismissed against the Office of the State Attorney We expect that your demand will be withdrawn Thank you Very truly yours ls/Stephen Mendelsohn Stephen Mendelsohn SAM:ls ACTIVE Greenberg Traurig P.A Attorneys at Law w.gtlaw.com EXHIBIT EXHIBIT IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CA FLORIDA HOLDINGS LLC Publisher of the PALM BEACH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants I CASE NO DEFENDANT DA VE ARONBERGS MOTION FOR ATTORNEYS FEES Defendant DA VE ARONBERG as State Attorney of Palm Beach County Florida by and through the undersigned attorneys moves the Court pursuant to Florida Statutes Section to award him reasonable attorneys fees for the defense of Plaintiffs First Amended Complaint the Complaint and as grounds therefor would show that on June Plaintiff was served a copy of this Motion together with a letter from the undersigned attorney in accordance with subsection of the above Statute demanding dismissal of the Complaint at least days prior to the filing of this Motion In said letter Defendants attorney advised Plaintiff of the facts which establish that the Complaint is without support of the facts or the law WHEREFORE Defendant DAVE ARONBERG as State Attorney of Palm Beach County Florida respectfully requests the Court enter an Order requiring Plaintiff and Plaintiffs attorneys to pay said Defendants attorneys fees incurred herein after service of this Motion CERTIFICATE OF SERVICE I hereby certify that on this 1st day July the foregoing was electronically filed via the Florida E-File Portal for electronic service on the parties of record herein JACOBS SCHOLZ WYLER LLC Isl Douglas A Wyler Arthur I Jacobs Esquire Fla Bar No Richard Scholz Esquire Fla Bar No Douglas A Wyler Esquire Fla Bar No Gateway Blvd Suite Fernandina Beach Florida jacobsscholzlaw comcast.net Attorneys for Defendant Dave Aronberg EXHIBIT EXHIBIT Filing E-Filed PM CA FLORIDA HOLDINGS LLC Publisher of THE PALM BEACH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL qRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO DIVISION AG PLAINTIFF CA HOLDINGS LLCS NOTICE OF DROPPING STATE ATTORNEY DAVE ARONBERG Plaintiff CA HOLDINGS,_ LLC pursuant to Fla _Civ hereby notifies the parties that it has dropped State Attorney Dave Aron berg from the above case Respectfully submitted GREENBERG TRAURIG P.A Attorneys for CA Florida Holdings _LLC Publishei of The Palm Beach PosJ Stephen A.Mendelsohn Esq I East Las Olas Boulevard Suite Boca Raton Florida Telephone Facsimile By Isl Stephen A Mendelsohn STEPHEN A MENDELSOHN Florida Bar No mendelsohns ut law com smith Viv gt law com LServiceia gtlaw com By Isl Michael Grygiel MICHAEL GRYGIEL Admitted Pro Hae Vice State St 6th Floor Albany New York Telephone Facsimile grvg ielm gtlaw.com By Nina Boyaiian NINA BOY AJIAN Admitted Pro Hae Vice Century Park East Suite Los Angeles California Telephone Facsimile bova i ian n!mgtla w.com riveraal a gtlaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this st day of October a true and correct copy of the foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system which will send a notice of electronic service for all parties of record herein Isl Stephen A Mendelsohn STEPHEN A 267MENDELSOHN ACTIVE EXHIBIT EXHIBIT Jacobs Scholz Wyler LLC Gateway Blvd Suite Fernandina Beach FL United States Dave Aronberg Jacobs Scholz Wyler LLC Balance Invoice Invoice Date Payment Terms Due Date November Aronberg adv CA Florida Holdings LLC Time Entries Date EE Activity Description Rate Hours Line Total DW Review Initial review of summons and complaint DW Review Reviewed motion for pro hac vice and Judge Hafele order granting DW Teleconference Teleconference Client re response to lawsuit DW Draft Drafted engagement letter and sent to client DW Review Reviewed 15th circuit local rules AIJ Review Initial review of complaint AIJ Meeting Meeting DAW to discuss lawsuit and strategy DW Meeting Meeting AIJ to discuss lawsuit and strategy AIJ Teleconference Teleconference Client re response to lawsuit DW Resea ch Research and prep for Motion to dismiss Preparation DW Draft 1st Draft motion to dismiss DW Teleconference Teleconference Client re draft motion to dismiss AIJ Review Reviewed 1st Draft MTDismiss AIJ Teleconference Teleconference clienl re draft motion to dismiss AIJ Meeting Meeting DAW re motion to dismiss DW Meeting Meeting IJ re MTDismiss ow Draft Completed final draft of motion to dismiss filed with Court DW Teleconference Spoke client re final draft of motion to dismiss ow Teleconference Spoke with Clerks attorney re response AIJ Review Reviewed final draft MTDismiss AIJ Review Reviewed Clerks MTDismiss ow Review Reviewed Clerks Motion to Dismiss ow Review Reviewed Order Setting Hearing on Defendants MTDismiss ow Review Reviewed motion for pro hac vice ow Review Reviewed Pls Amended Complaint ow Teleconference Spoke with client re Amended Complaint ow Review Reviewed PJs notice of filing AIJ Review Reviewed Pls Am Campi ow Review Reviewed Judge Marxs Order Cancelling MTDismiss Hearing ow Review Reviewed Pls Objection to Defendants MTDismiss ow Teleconference Spoke with client re Amended complaint AIJ Meeting Meeting DAW re response to Am Campi ow Meeting Meeting AIJ re response to Am Campi ow Review Reviewed Order granting pro hac vice admission ow Research Draft Researched and drafted response to Amended Complaint ow Teleconference Spoke with Clerks attorney re response to amended complaint DW Various Completed Answer/MTDismiss Amended Complaint filed with Court sent copy to Client ow Draft Drafted and filed Notice of Unavailability AIJ Review Reviewed final Answer/MTDismiss ow Review Reviewed Clerks Answer/MTDismiss ow Review Reviewed Order setting hearing on Defs MTDismiss ow Teleconference Spoke client re order setting MTDismiss hearing for March ow Review Reviewed Pls Opposition to Aronberg MTDismiss Clerks MTDismiss AIJ Review Reviewed Pls Opposition to Aronberg MTDismiss Clerks MTDismiss ow Teleconference Reviewed email from Pls counsel re motion to continue hearing ow Review Reviewed Pls unopposed motion for conlinuance ow E-mail Emails Clerks counsel re Pls request to continue hearing ow E-mail Reviewed email from Pl re agreed order responded ow Review Reviewed Courts agreed order continuing hearing DW Review Reviewed order rescheduling hearing on Defs MTDismiss DW Teleconference Spoke client re order rescheduling MTDismiss hearing for June AIJ Review Reviewed Order rescheduling MTDfsmiss hearing DW Review Reviewed order setting Zoom hearing re MTDismiss DW Teleconference Spoke client re hearing will be via Zoom DW Review Reviewed Clerks filing change of atty of record DW Teleconference Spoke with Clerks new counsel Nicole Fingerhut DW E-mail Reviewed Pls email re cases and authorities for MTDismiss hearing responded DW Preparation Began oral argument prep for MTDismiss hearing DW E-mail Reviewed email from Judge Marxs JA and responded DW Various Reviewed Pls page binder re MTDismiss prepped for hearing DW E-mail Drafted and sent email to client re MTD hearing tomorrow DW Attend Hearing Prepped for and attended MTDismiss hearing via Zoom DW Teleconference Spoke Client re debrief MTDismiss hearing ow E-mail Emailed courtesy copies of Aronbergs Answer and MTDismiss to Judge Marx DW E-mail Reviewed response from Client and replied AIJ Attend Hearing Attended MTDismiss hearing via Zoom AIJ Review Reviewed order granting MTDismiss prejudice DW Review Reviewed Courts Order Granting Defendants MTDismiss Count It Prejudice DW Various Shared order Client and spoke re result and plan going forward re Researched Fla Stat drafted DW Various demand letter and proposed motion for attorneys fees/sanctions Served PJs counsel with demand letter and proposed motion AIJ Meeting Meeting DAW re Order DW Meeting Meeting AIJ re Order AIJ Review Reviewed demand and proposed motion for sanction DW Various Reviewed notice of change of attorney re Clerk called_ an spoke new counsel _Cynthia uerra_ Reviewed Pls letter refusing to voluntarily dismiss DW Various amended complaint despite demand called and spoke client re Pls refusal next steps ow E-mail Sent client copy of Pls letter refusing to dismiss complaint AIJ Review Reviewed Pls letter refusing to dismiss Count I/Am Gompf Spoke client re filing of motion for ow Various fees/sanctions filed motion for attorneys fees based on Pls failure to voluntarily dismiss amended complaint count ow E-mail Email to client re affidavit and summary judgment ow Teleconference Discussed Client drafting and filing Motion for Summary Judgmel and MSJ evidence AfJ Teleconference Discussed Client drafting and fifing Motion for Summary Judgment and MSJ evidence ow Draft Created 1st draft of Aronberg Affidavit shared client AIJ Various Reviewed draft affidavit and discussed wt DAW ow Meeting Discussed draft affidavit AIJ ow Review Reviewed Pls Request to Produce re Clerk ow Teleconference Spoke wt Clerks counsel re Request to Produce ow Review Reviewed Pls Amended Request to Produce re Clerk ow Teleconference Spoke Clerks counsel re Amended Request to Produce ow Draft Revised Aronberg affidavit ow Draft Finalized Aronberg Affidavit and sent to client ow Research Research and prep for Motion for Summary Preparation Judgment ow Various Received executed Aronberg Affidavit ow Draft Began drafting Motion for Summary Judgment ow Draft Continued drafting Motion for Summary Judgment ow Review Reviewed email from Plaintiff attempting to set hearing on motion for fees/sanctions ow E-mail Sent responsive email to Pls counsel ow Meeting Discussed draft MSJ AIJ AIJ Various Reviewed draft MSJ and met DAW to discuss ow Draft Finalized Motion for Summary Judgment fifed court along with Aronberg affidavit ow Teleconference Spoke Clerks counsel re request to produce ow Various Reviewed Pls email and accepted conference call invite for ow Review Reviewed Clerks response to request for production Spoke Pls counsel re dispute as to whether ow Teleconference MSJ should be heard before fee motion or vis versa call was unsuccessful AIJ Meeting Discussed DAW phone call Pls counsel ow Meeting Discussed AIJ phone call Pls counsel Reviewed email from Pls counsel requested ow E-mail Aronberg to withdraw sanctions motion w/o prejudice ow Meeting Discussed AIJ filing motion for CMG AIJ Meeting Discussed DAW filing motion for CMC ow Various Drafted and filed motion to set case management conference re MSJ 1st or Fee hearing 1st Responded to Pls email and refused to ow E-mail withdraw motion provided copy of motion to set CMC and available dates for hearing ow E-mail Reviewed Pls email insisting that motion be withdrawn Replied to Pls counsel that the motion for DW E-mail sanctions will not be withdrawn and asking for response re CMG ow E-mail Sent client copy of email exchange Pls counsel called and spoke Client ow Various Drafted and filed Notice of Hearing on set up Court Call spoke client re hearing date ow Review Reviewed Pls Memo of Law opposing Aronbergs motion for fees/sanctions ow Review Reviewed Pls Response to Aronbergs request to schedule motion for fees after MSJ AIJ Review Reviewed Pts Memo of Law opposing motion AIJ Review Reviewed Pls Response to Aronbergs request to schedule motion after MSJ ow Research Research caselaw statutes re response to Pls Memo of Law ow Research Continued researching caselaw re response to Analyze Pls memo of law ow Draft Created 1st draft of Response to Pls Memo of Law and shared Client ow Meeting Discussed AIJ caselaw and draft response to memo AIJ Various Reviewed draft MSJ discussed draft DAWand caselaw ow Draft Finalized and filed Response to Pls Memo of Law ow Telephone Spoke client re memo of law ow Telephone Spoke client again re response to memo of law ow Atte11cl Hearing Attended hearing re Motion to Set CMG called client to discuss DW Various Reviewed email and letter from Pl re settlement Sent copy to Client and called to discuss DW Telephone Spoke Pls counsel re settlement ow Telephone Spoke client re Pls settlement proposal Attended hearing re motion to set CMC i AIJ Various discussed client AIJ Various Discussed Pls settlement proposal DAW and then Client DW Meeting Discussed Pls settlement proposal AIJ ow Various Drafted and shared proposed order Pls counsel ow Telephone Spoke Pls counsel re settlement DW Telephone Spoke client re Pls settlement proposal ow Meeting Discussed Pls settlement proposal AIJ AIJ Meeting Discussed Pls settlement proposal DAW ow Various Uploaded proposed order re CMC for Judge Hafele ow Telephone Spoke client re Pls settlement proposal ow Telephone Spoke Pls counsel re settlement AIJ Meeting Discussed Pls settlement proposal DAW ow Meeting Discussed Pls settlement proposal AIJ DW Various Reviewed email from Pl re settlement sent copy to Client and called to discuss ow Telephone Spoke client re settlement ow Telephone Spoke Pls counsel re settlement ow Telephone Spoke client re settlement ow Meeting Discussed Pls settlement proposal AIJ AIJ Meeting Discussed Pls settlement proposal DAW Drafted and filed Motion to Set Hearing on ow Various Aronberg MSJ drafted proposed order granting motion to set checked court availability emailed Pls counsel re choose date for hearing DW Review Reviewed Order re CMC unnecessary ow Telephone Spoke client re media response ow Telephone Spoke client re media response ow Telephone Spoke client re media response ow Telephone Spoke client re media response ow Telephone Spoke client re media response ow E-mail Sent email Aronberg statement to media AIJ Meeting Discussed media response DAW ow Meeting Discussed media response AIJ Reviewed PJs Notice of Dropping Aronberg as DW Various party spoke Client and AIJ re notice and next steps Reviewed Pls Notice of Dropping Aronberg as AIJ Various party spoke Client and DAW re notice and next steps Totals Time Entry Sub-Total Sub-Total Total Amount Paid Balance Due EXHIBIT EXHIBIT IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CA FLORIDA HOLDINGS LLC Publisher of the PALM BEACH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants CASE NO AFFIDAVIT OF ATTORNEYS FEES ST ATE OF FLORIDA COUNTY OF NASSAU BEFORE ME the undersigned authority appeared Douglas A Wyler Esq who after being first duly sworn deposes and says I Affiant is a partner of JACOBS SCHOLZ WYLER LLC counsel for Defendant DAVE ARONBERG as State Attorney of Palm Beach County Florida Aronberg as well as general counsel to the Florida Prosecuting Attorneys Association FPAA and makes this Affidavit of his own personal knowledge Affiant is licensed to practice law in the State of Florida is an active member of the Florida Bar in good standing and has engaged in the practice of law in the State ofFlorida since As detailed herein the services rendered by Affiant and his firm pertain to Affiants demand letter and motion for attorneys fees sent to Plaintifr counsel pursuant to Florida Statutes on June in defending against Count I of Plaintifrs Amended Complaint and Plaintiffs October Notice of Dropping State Attorney Dave Aronberg from the above-captioned lawsuit See Exhibits A and attached hereto The total time Affiants lawfirm has expended services rendered to date is hours however from the date of Defendant Aronbergs demand Affiants law firm.has expended a total hours Of the hours expended since Defendant Aronbergs demand was served the Affiant Of the hours expended since Defendant Aronberg I demand was served the total time Affiant has expended services rendered to date is hours at the rate of per hour Likewise the total time Affiants law partner Arthur I Jacobs has expended services rendered to date is hours at the rate of per hour Accordingly since Defendant Aronbergs demand was served Defendant Aronbergs counsel JACOBS SCHOLZ WYLER LLC has rendered services in the amount of in conjunction with the defense of the instant action pursuant to Florida Statutes See Exhibit attacltetl hereto Affiant expects to incur an additional hours at an hour in preparing for and attending the hearing on attorneys fees Thus the total amount of hourly attorneys fees the State Attom,ey is seeking is hours for a total of Additionally the State Attorney seeks a multiplier which when applied makes the grand total attorneys fees sought herein Dated this 9th day of November FURTHER AF FIA NT SA STATE OF FLORIDA COUNTY OF NASSAU The foregoing instrument was acknowledged before me this 9th day of November by Dou A Wyler Esquire who is personally known to me and who did take an oath Name typed printed or stamped CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 9th day of November a copy of the foregoing has been electronically filed with the Florida E-File Portal fore-service on all parties of record herein JACOBS SCHOLZ WYLER LLC Isl Douglas A Wyler Arthur I Jacobs Esq Fla Bar No I _Richard Scholz Esq Fla Bar No Douglas A Wyler Esq Fla Bar No Gateway Blvd Suite Fernandina Beach Florida Fax Primary jacobsscholzlaw comcast.net Attorneys for Defendant Dave Aronberg EXHIBIT A EXHIBIT A Friday September at Eastern Daylight Time Subject SERVICE OF COURT DOCUMENT CASE NO CA FLORIDA HOLDINGS LLC DAVE ARON BERG JACOBS SCHOLZ WYLER LLC A LIMITE:D LIABILITY COMPANY OP PROPES_SIONAL ASSOCIATIONS ATTORNEYS AT LAW GATEWAY TO AME:LIA if LAW OFFICI or JACOBS ASSOCIATES P.A ARTHUR I JACOBS GATEWAY BLVD SUITE ZOl FEilNA..l lDINA BEACH June VIA ELECTRONIC U.S MAIL Stephen A Mendelsohn Esq Greenburg Traurig P.A Town Center Circle Suite Boca Raton FL TELEPHONE FAX NO RE CA Florida Holdings LLC Dave Aron berg ct al Palm Beach County Case No Dear Mr Mendelsohn RICHARD SCHOL.:Z P.A RICHA DJ SCHOLZ DOUCll.AS A WYLER P.A DOUGLAS A WYLE:A As you are aware our finn represents the interests of Dave Aronberg as State Attorney of Palm Beach County Florida in the above referenced matter The purpose of this letter is to demand the voluntary dismissal of your First Amended Complaint the Complaint dated January This demand is made pursuant to 267section Florida Statutes As you know Section provides I Upon the courts initiative or motion of any party the court shall award a reasonable attorneys fee including prejudgment interest to be paid to the prevailing party in equal amounts by the losing party and the losing partys attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing partys attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial a Was not supported by the material facts necessary to establish the claim or defense or Would not be supported by the application of then-existing law to those material facts Today Judge Marx granted with prejudice Defendant Aronbergs Motion to Dismiss Count II of the Plaintiffs Complaint Pursuant to the Courts ruling the Plaintiffs only remaining cause of action consists of Count I for Declaratory Relief Accordingly we believe that the Complaint filed herein and its sole remaining Count for Declaratory Relief is not supported by the material facts necessary to establish the claims asserted and that your claims are not supported by the application of current law to said material facts First and foremost the Complaint is not supported by the material facts necessary to establish the claims asserted because neither Defendant Aronberg nor The Office of the State Attorney for the Fifteenth Judicial Circuit is in custody or control of the grand jury materials sought therein Simply put the declaratory relief sought by the Plaintiff seeks records from my client that are impossible for him or his office to produce Accordingly Defendant Aronberg is not a proper party to this action because no matter what he and his office do not have possession custody or control of the requested materials In 267addition to the foregoing material facts that negate the claims asserted in the Complaint your claims are also not supported by the application of current law Specifically your action for declaratory relief fails based on the clear unambiguous statutory language found in Section Florida Statutes which states When such disclosure is ordered by a court pursuant to subsection I for use in a civi I case it may be disclosed to all parties to the case and to their attorneys and by the latter to their legal associates and employees Hmvever the grand iurv testimony afforded such persons by the court can only be used in the defense or prosecution the civil or criminal case and for no other purpose whatsoever Moreover even if the Plaintiff were to prevail in the declaratory action Mr Aronberg would be unable to comply with any court order granting disclosure of the requested documents because neither Mr Aronberg nor The Office of the State Attorney for the Fifteenth Judicial Circuit have possession custody or control of the Epstein grand jury records Based on the foregoing if the Complaint is not dismissed within days of the service of this letter the enclosed Motion for Attorneys Fees will be filed and Ve will seek as sanctions from your client and your firm recovery of the legal expenses incurred in defending this frivolous action Pl Douglas A Wyler Esq For the Firm _Encl Defendants Motion for Attorneys Fees IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CA FLORIDA HOLDINGS LLC Publisher of the PALM BEACH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants __ __ CASE NO DEFENDANT DAVE ARONBERGS MOTION FOR ATTORNEYS FEES Defendant DAVE ARONBERG as State Attorney of Palm Beach County Florida by and through the undersigned attorneys moves the Court pursuant to Florida Statutes Section OS to award him reasonable attorneys fees for the defense of Plaintiffs First Amended Complaint the Complaint and as grounds therefor would show that on June Plaintiff was served a copy of this Motion together with a letter from the undersigned attorney in accordance with subsection of the above Statute demanding dismissal of the Complaint at least days prior to the filing of this Motion In said letter Defendants attorney advised Plaintiff of the facts which establish that the Complaint is without support of the facts or the law WHEREFORE Defendant DA VE ARONBERG as State Attorney of Palm Beach County Florida respectfully requests the Court enter an Order requiring Plaintiff and Plaintiffs attorneys to pay said Defendants attorneys fees incurred herein after service of this Motion CERTIFICATE OF SERVICE I hereby certify that on this __ day __ the foregoing was electronically filed via the Florida E-File Portal for electronic service on the parties of record herein JACOBS SCHOLZ WYLER LLC Isl Douglas A Wyler Arthur I Jacobs Esquire Fla Bar No Richard Schoiz Esquire Fla Bar No Douglas A Wyler Esquire Fla Bar No Gateway Blvd Suite Fernandina Beach Florida jacobsscholzlaw comcast.net Attorneys for Defendant EXHIBIT EXHIBIT Filing I E-Filed PM IN THE CIRCUrr 260COURT OF THE FIFTEENTH JUDICIAL CJRCUIT.IN AND FOR PALM BEACH COUNTY FLORIDA CA FLORIDA HOLDINGS LLC Publisher of THE PALM BEACH POST CASE NO DIVISION AG Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK Clerk and Comptroller of Palm Beach County Florida Defendants PLAINTIFF CA HOLDINGSt LLCS NOTICE OF DROPPING ST A TE ATTORNEY DA VE ARONBERG Plaintiff CA HOLDINGS LLC pursuant to Fla Civ hereby notifies the parties that it has dropped State Attorney Dave Aronberg from the above case Respectfully submitted GREENBERG TRAURIG P.A Attorneys for CA Florida Holdings LLC Publisher of The Palm Beach Post Stephen A.Mendelsohn Esq I East Las Olas Boulevard Suite Boca Raton Florida Telephone Facsimile By A Stephen A Mendelmhn STEPHEN A MENDELSOHN Florida Bar No mendelsohnsrfrgtla v.com smithlti"L gtl:m com FLScrvicc ci1gtlaw.com By Isl Michael Grygiel MICHAEL GRYGIEL Admitted Pro Hae Vice State St 6th Floor Albany New York Telephone Facsimile grvgielm gtlaw.com By Nina Bovaiian NINA BOY AJIAN Admitted Pro Hae Vice Century Park East Suite Los Angeles California Telephone Facsimile bovajianniw.gtlaw.com riveraaVivgtlaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this st day of October a true and correct copy of the foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system which willsend a notice of electronic service for all parties of record herein ACTIVE Isl Stephen A Mendelsohn STEPHEN A MENDELSOHN EXHIBIT EXHIBIT Jacobs Scholz Wyler LLC Gateway Blvd Suite Fernandina Beach FL United States Jacobs Scholz Wyler LLC Dave Aronberg Balance Invoice Invoice Date November Payment Terms Due Date Aron berg adv CA Florida Holdings LLC Time Entries Date EE Activity Description Rate Hours Line Total DW Review Initial review of summons and complaint ow Review Reviewed motion for pro hac vice and Judge Hafele order granting ow Teleconference Teleconference Client re response to lawsuit ow Draft Drafted engagement letter and sent lo client ow Review Reviewed 15th circuit local rules AIJ Review Initial review of complaint AIJ Meeting Meeting DAW to discuss lawsuit and strategy ow Meeting Meeting wt AIJ to discuss lawsuit and strategy AIJ Teleconference Teleconference Client re response to lawsuit ow Research Research and prep for Motion to dismiss Preparation ow Draft 1st Draft motion to dismiss ow Teleconference Teleconference wt Client re draft motion to dismiss AIJ Review Reviewed 1st Draft MTDismiss AIJ Teleconference Teleconference client re draft motion to dismiss AIJ Meeting Meeting wt DAW re motion to dismiss DW Meeting Meeting wt AIJ re MTDismiss DW Draft Completed final draft or motion to dismiss filed with Court DW Teleconference Spoke client re lin_al draft of motion to dismiss DW Teleconference Spoke with Clerks attorney re response AIJ Review Reviewed final draft MTDismiss AIJ Review Reviewed Clerks MTOismiss DW Review Reviewed Clerks Motion to Dismiss ow Review Reviewed Order Setting Hearing on Defendants MTOismiss ow Heview Reviewed motion for pro hac vice DW Review Reviewed Pls Amended Complaint DW Teleconference Spoke with client re Amended Complaint ow Review Reviewed Pls notice of filing AIJ Review Reviewed PJs Am Campi DW Review Reviewed Judge Marxs Order Cancelling MTDismiss Hearing DW Review Reviewe_d Pls Objection to Defendants MTDismiss DW Teleconference Spoke with client re Amended complaint AIJ Meeting Meeting DAW re response lo Am Campi ow Meeting Meeting AIJ re response to Am Comp ow Review Reviewed Order granting pro hac vice admission ow Research Draft Researched and drafted response to Amended Complaint ow Teh:iconference Spoke with Clerks attorney re response to amended complaint ow Various Completed Answer/MTDismiss Amended Complaint filed with Court sent copy to Client DW Draft Drafted and filed Notice of Unavailability AIJ Review Reviewed final Answer/MTDismiss DW Review Reviewed Clerks Answer/MTDismiss DW Review Reviewed Order setting hearing on Defs MTDismiss ow Teleconference Spoke client re order setting MTOismiss hearing for March DW Review Reviewed Pls Opposition to Aronberg MTDismiss Clerks MTDismiss AIJ Review Reviewed Pls Opposition to Aronberg MTDismiss Clerks MTDismiss DW Teleconference Reviewed email from Pls counsel re motion to continue hearing ow Review Reviewed Pls unopposed motion for continuance ow E-mail Emails Clerks counsel re Prs request to continue hearing DW E-mail Reviewed email from Pl re agreed order responded ow Review Reviewed Courts agreed order continuing hearing DW Review Reviewed order rescheduling hearing on Defs MTDismiss ow Teleconference Spoke client re order rescheduling MTDismiss hearing for June AIJ Review Reviewed Order rescheduling MTDismiss hearing ow Review Reviewed order setting Zoom hearing re MTOismiss DW Teleconference Spoke client re hearing will be via Zoom DW Review Reviewed Clerks filing change of atty of record ow Teleconference Spoke with Clerks new counsel Nicole Fingerhut ow E-mail Reviewed Pls email re cases and authorities for MTDismiss hearing responded ow Preparation Began oral argument prep for MTDismiss hearing DW E-mail Reviewed email from Judge Marxs JA and responded DW Various Reviewed Pls page binder re MTDismiss prepped for hearing ow E-mail Drafted and sent email to client re MTO hearing tomorrow ow Attend Hearing Prepped for and attended MTOismiss hearing via Zoom ow Teleconference Spoke Client re debrief MTDismiss hearing ow E-mail Emailed courtesy copies of Aronbergs Answer and MTOismiss to Judge Marx DW E-mail Reviewed response from Client and replied AIJ Attend Hearing Attended MTDismiss hearing via Zoom AIJ Review Reviewed ordergranting MTDismiss prejudice DW Review Reviewed Courts Order Granting Defendants MTDismiss Count II Prejudice ow Various Shared order wl Client and spoke re result and plan going forward re Researched Fla Stat drafted DW Various demand letter and proposed molion for attorneys fees/sanctions Served Pls counsel with demand letter and proposed motion AIJ Meeting Meeting DAW re Order DW Meeting Meeting AIJ re Order AIJ Review Reviewed demand and proposed motion for sanction ow Various Reviewed notice of change of attorney re Clerk called and spoke wr new counsel Cynthia Guerra Reviewed Pls letter refusing to voluntarily dismiss ow Various amended complaint despite demand called and spoke clienl re Pls refusal next steps ow 267mail Sent client copy al Pls letter refusing to dismiss complaint AIJ Review Reviewed Pls letter refusing to dismiss Count I/Am Campi Spoke clienl re filing of motion for ow Various fees/sanctions filed motion for attorneys fees based on Pls failure to volunlarily dismiss amended complaint count ow E-mail Email to client re affidavit and summary judgment ow Teleconference Discussed Client drafting and filing Motion for Summary Judgment arid MSJ evidence AIJ Teleconference Discussed Client drafting and filing Motion for Summary Judgment and MSJ evidence ow Draft Created 1st draft of Aronberg Affidavit shared client AIJ Various Reviewed draft affidavit and discussed DAW ow Meeting Discussed draft affidavit AlJ ow Review Reviewed Pls Request to Produce re Clerk OW Teleconference Spoke Clerks counsel re Request to Produce ow Review Reviewed Pls Amended Request to Produce re Clerk ow Teleconference Spoke wr Clerks counsel re Amended Request to o.f Produce ow Draft Revised Aronberg affidavit ow Draft Finalized Aronberg Affidavit and sent to client ow Research Research and prep for Motion for Summary Preparation Judgment ow Various Received executed Aronberg Affidavit ow Draft Began drafting Motion for Summary Judgment ow Draft Continued drafting Motion for Summary Judgment ow Review Reviewed email from Plaintiff attempting to set hearing on motion for fees/sanctions ow E-mail Sent responsive email to Pls counsel DW Meeting Discussed draft MSJ wf AIJ AIJ Various Reviewed draft MSJ and met DAW to discuss ow Draft Finalized Motion for Summary Judgment filed court along with Aronberg affidavit ow Teleconference Spoke Clerks counsel re request lo produce ow Various Reviewed Pls email and accepted conference call invite for ow Review Reviewed Clerks response to request for production Spoke Pts counsel re dispute as to whether ow Teleconference MSJ should be heard before fee motion or vis viirsa cali was unsticcessiui AIJ Meeting Discussed wt DAW phone call wt Pls counsel ow Meeting Discussed AIJ phone call Pls counsel Reviewed email from Pls counsel requested ow E-mail Aronberg to withdraw sanctions motion w/o prejudice DW Meeting Discussed AIJ filing motion for CMC AIJ Meeting Discussed DAW filing motion for CMC DW Various Drafted and filed motion to set case management conference re MSJ 1st or Fee hearing 1st Responded to Pls email and refused to ow E-mail withdraw motion provided copy of motion to set CMC and available dates for hearing DW E-mail Reviewed Pls email insisting that OS motion be withdrawn Replied to Pls counsel that the motion for ow E-mail sanctions will not be withdrawn and asking for response re CMC ow E-mail Sent client copy of email exchange Pls counsel called and spoke Client ow Various Drafted and filed Notice of Hearing on set up Court Call spoke client re hearing date ow Review Reviewed Pls Memo of Law opposing Aron bergs motion for fees/sanctions ow Review Reviewed PJs Response to Aronbergs request to schedule motion for fees after MSJ AIJ Review Reviewed Pls Memo of Law opposing motion AIJ Review Reviewed Pls Response to Aronbergs request to schedule motion after MSJ ow Research Research caselaw statutes re response to Pls Memo of Law DW Research Continued researching caselaw re response to Analyze Pls memo of law ow Draft Created 1st draft of Response to Pls Merna of Law and shared wt Client DW Meeting Discussed wt A!J caselaw and draft response to memo AIJ Various Reviewed draft MSJ discussed draft DAW and caselaw DW Draft Finalized and filed Response to Pls Memo of Law ow Telephone Spoke client re memo of law DW Telephone Spoke wt client again re response to memo of law ow Attend Hearing Attended hearing re Motion to Set CMC called client to discuss ow Various Reviewed email and letter from Pl re settlement Sent copy _to_ CHent and caUed to _discu_ss_._ DW Telephone Spoke Pls counsel re settlement DW Telephone Spoke client re Pls settlement proposal AIJ Various Attended hearing re motion to set CMC discussed client AIJ Various Discussed Pls settlement proposal DAW and then Client DW Meeting Discussed Pls settlement proposal AJJ DW Various Drafted and shared proposed order Pls counsel DW Telephone Spoke Pls counsel re settlement ow Telephone Spoke client re Pls settlement proposal DW Meeting Discussed Pls settlement propos I AIJ AIJ Meeting Discussed PJs settlement proposal DAW DW Various Uploaded proposed order re CMC for Judge Hafele DW Telephone Spoke client re Pls settlement proposal DW Telephone Spoke Pls counsel re settlement AlJ Meeting Discussed Pls settlement proposal DAW DW Meeting Discussed Pls settlement proposal AIJ DW Various Reviewed email from Pl re settlement sent copy to Client and called to discuss DW Telephone Spoke wl client re settlement DW Telephone Spoke Pls counsel re settlement ow Telephone Spoke client re settlement DW Meeting Discussed Pls settlement proposal AIJ AIJ Meeting Discussed PJs settlement proposal DAW Drafted and filed Motion to Set Hearing on DW Various Aronberg MSJ drafted proposed order granting motion to set checked court availability emailed Pls counsel re choose dale for hearing DW Review Reviewed Order re CMC unnecessary DW Telephone Spoke client re media response DW Telephone Spoke client re media response DW Telephone Spoke client re media response ow Telephone Spoke wt client re media response ow Telephone Spoke wt client re media response ow E-mail Sent email Aronberg statement to media AIJ Meeting Discussed media response DAW ow Meeting Discussed media response AIJ Reviewed Pls Notice of Dropping Aronberg as DW Various party spoke wl Client and AIJ re notice and next steps Reviewed Pls Notice of Dropping Aronberg as AIJ Various party spoke Client and DAW re notice and next steps Totals Time Entry Sub 267Tolal Sub-Total Total Amount Paid Balance Due EXHIBIT EXHIBIT JACOBS SCHOLZ WYLER LLO THE LAW Of:"FICE:S OF JACOBS ASSOCIATES P.A ARlHUR I JACOBS Novel!lber Office of the State Attorney 15th Judicial Circuit Attn Jeanne Howard North Dixie Highway A LIMITED LIABILITY COMPANY OF PROF"ESSIONAL ASSOC 225ATIONS ATTORNEYS AT LAW AT 243WAY TO A.MELIA iEJj OA.Tf:.WAY BLVD SUIT eo1-I Fl:ru.ANDINA BEA.CB Fl.0IUDA 243PHON FAA NO West Palm Beach,-FL Re CA Florida Holdings LLC Dave Aronberg et al Case No Dear Mrs Howard RICHARD SCHOLZ P.A RICHARQ SCHOLZ JGLAS A WYI.ER DOUGt..AS wvu:.R The purpose of this _letter is to confinn that Jacobs Scholz Wyler LLC wi II represent you regarding the above-referenced matter Our fees will be contingent upon our success in this matter You will not be liable or required to pay any monies to our office unless we are successful in ourrepresentation of you regarding the above-referenced litigation and receive a court order awarding attorneys fees Accordingly should we be successful in this matter you agree to be billed for the time incurred in defending this action at our current hourly rates At this time our current hourly rates are for senior partners for other partners for associate attorneys and for paralegal time Furthennore the attorneys fees paid to our finn shall be calculated by the above listed hourly rates multiplied by the number of hours expended in defending this action or the total fee mandated and awar ed by the court order herein whichever is greater By signing below you agree to the tenns as set forth above Please return a signed and dated copy of this letter to our office If you have any questions or concerns please contact our office On behalf of the finn we are proud to represent you in this matter s;nr Douglas A Wyler Esq For the Finn Date Def.Ex Def.Ex Filing E-Filed PM CA FLORIDA HOLDINGS LLC Publisher of THE PALM BEACH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO DIVISION AG RESPONSE AND MEMORANDUM OF LAW OF PLAINTIFF CA HOLDINGS LLC IN OPPOSITION TO STATE ATTORNEY DAVE ARONBERGS AMENDED MOTION FOR ATTORNEYS FEES UNDER FLA STAT Plaintiff CA Florida Holdings LLC Plaintiff publisher of The Palm Beach Post submits this Response and Memorandum of Law in Opposition to State Attorney Dave Aronbergs Aronberg November Amended Motion for Attorneys Fees under Fla Stat DE Amended Motion For the reasons set forth below the Amended Motion should be denied with prejudice INTRODUCTION Aron bergs Amended Motion for sanctions is legally and factually insufficient to meet the strict standards of Fla Stat First the Amended Motion fails as a matter of law because Aronberg did not comply with the required I-day notice period safe harbor provision set forth While the Amended Motion references Fla Civ in the introductory paragraph that Rule sets forth a deadline by which any party seeking a judgment taxing costs attorneys fees both 267shall serve motion;"-but does not itself provide grounds to those fees or costs Rather the Amended Motion is based upon and seeks relief of sanctions under Fla Stat in Fla Stat prior to filing his November Amended Motion which was materially different than and raised new arguments and cited record evidence not included in his first Motion for Attorneys Fees First Motion served on June and filed on July DE Unlike his First Motion which was served via email upon Plaintiffs counsel days before filing Aronbergs Amended Motion was never served via any method of delivery before it was filed on November Thus Aronberg precluded Plaintiff from taking advantage of the statutory 21-day safe harbor provision to voluntarily dismiss its then-pending claim as to Aron berg before filing his Amended Motion seeking sanctions Moreover Aronberg filed his November Amended Motion nineteen days after Plaintiff had already dismissed him.from the action by filing a notice dropping Aronberg as a party on October DE Thus at the time the Amended Motion was filed it was moot As to the merits the Amended Motion fails under Fla Stat because the claim at issue Count I of Plaintiffs First Amended Complaint is exactly the type of claim specifically excepted from sanctions under Section a as the Plaintiffs claim was presented to the Court as a good faith argument for the interpretation of existing law or at least the establishment of new law as it applied to the material facts with a reasonable expectation of success Further Aronberg in his official capacity as the State Attorney was a proper party defendant Sanctions are inappropriate under Fla Stat BACKGROUND On January Plaintiff filed a First Amended Complaint DE Complaint against the State Attorney Aronberg and the Clerk of Court Sharon Bock now Joseph Abruzzo for declaratory relief Count I and relief under Fla Stat Count II seeking to obtain access to records from the grand jury proceeding and criminal prosecution of the late Jeffrey Epstein a convicted sex offender by former State Attorney Barry Krischer On January Aronberg filed an Answer to Count I and a Motion to Dismiss Count II DE The Clerk of Court also filed an Answer to Count I and Motion to Dismiss Count II OE In his Answer to Count I of the Complaint Aronberg admitted that Plaintiff The Palm Beach Post sought but Defendants have refused to provide access to testimony minutes and other evidence presented in in the grand jury proceeding Aronberg Answer DE On June the Court entered an Order Granting the Defendants Motions to Dismiss Count II of Plaintiffs First Amended Complaint With Prejudice OE The Order specifically did not address the merits of Count I On July Aron berg filed his First Motion seeking sanctions against Plaintiff under Fla Stat On June prior to filing his First Motion Aronbergs attorney Douglas A Wyler Esq served via email to Plaintiffs counsel an untiled copy of the First Motion with an enclosure letter The enclosure letter was not filed along with the First Motion DE which has no exhibits The enclosure letter accompanying the First Motion but not the First Motion itself alleged in conclusory fashion that Aronberg did not have possession custody or control of the grand jury documents sought by Plaintiff See DE at Ex A Importantly however there was no evidence in the record to confirm this allegation and the First Motion did not refute or even While much of the Epstein saga is a matter of public record the public still does not know how former State Attorney Krischer used the grand jury process and the secrecy that omes with it to shield Epstein and his equally powerful and corrupt accomplices from the public and to justify Epsteins lenient treatment Access to the Epstein grand jury materials will reveal how the instrumentality of the grand jury was used in this case which directly implicates the integrity of this States criminal justice process and is unquestionably a matter of vital public concern Aronberg later attached the June enclosure letter as Exhibit A to his October Response to 267Plaintiffs Memorandum of Law in Opposition to the State Attorneys Fla Stat Section Motion Aronbergs October Reply DE address the State Attorneys ability to object to or impede attempts by the Plaintiff or any other third party to seek grand jury documents whether through the Clerk of Court or other means At the time of Aronbergs First Motion for sanctions which he expressly admitted was a place-marker motion to the extent he ultimately prevailed on the mer.its no motions for summary judgment had been filed and Aronberg had not served any affidavit or identified any evidence relating to this matter or any allegations in the Complaint On or about August Aronberg filed a Motion for Summary Judgment DE and an affidavit by Aronberg DE averring that he did not have possession or control over the Epstein grand jury materials and had no authority to demand that the Clerk of Court provide access to the materials This was the first record evidence relating to Aronbergs lack of possession or control of the grand jury materials sought by The Palm Beach Post Notably Aronbergs affidavit still did not refute or address the State Attorneys ability to object to or otherwise impede an attempt by Plaintiff to seek grand jury documents On October Aronberg filed a motion to set a hearing on his Motion for Summary Judgment DE On that same date Plaintiff filed a Notice of Dropping Party as to Aronberg dismissing him from the case DE On November Aronberg filed his Amended Motion for Attorneys Fees DE seeking sanctions under Fla Stat against Plaintiff relating to all fees and costs incurred by Aronberg after June The Amended Motion unlike his First place-marker Motion filed on July referenced Aronbergs August I Motion for Summary Judgment and exhibits Importantly neither Aronberg nor his attorney served a copy of the Amended Motion upon Plaintiff or its counsel at any time prior to filing the Amended Motion on November See Aronbergs October Reply DE at The evidentiary hearing on Aron bergs Amended Motion for sanctions is set on the Courts ten-week docket between July_26 and October DE MEMORANDUM OF LAW I LEGAL STANDARD Under Section Florida Statutes the Court may award reasonable attorneys fees only if it finds that a party or its attorney knew or should have known that a claim or defense when initially presented to the Court or at any time before trial was not supported by material facts necessary to establish the claim or defense or would not be supported by the application of then existing law to those material facts To award sanctions the trial court must find that there were no justiciable issues of law or fact and that the losing partys attorney did not act in good faith based on the representations of his or her client Siegel Rowe So 3d Fla 2d DCA quotation omitted Indeed where there is an arguable bas in law and fact for a partys claim a trial court may not sanction that party under section I Minto BLH LLC Friends of Florida Inc So 3d Fla 4th DCA citing Kowallekv Rehm So.3d Fla 4th DCA emphasis added Courts must apply Section with restraint to ensure that it serves its intended rpose of discouraging baseless claims without casting a chilling effect on use of the courts MacA/ister Bevis Constr Inc So.3d Fla 2d DCA Taking into account the amendments that broadened the statute after Florida courts have continued to caution that section must be carefully applied to ensure that it serves the purpose for which it was intended to deter frivolous pleadings MC Liberty Express Inc All Points Servs Inc So 3d Fla 3d DCA Thus an award offees under section requires more than the moving party succeeding in obtaining a dismissal of the action or the entry of a summary judgment in its favor and a party does not need to have conclusive evidence to prove its case at the time of filing in order to avoid sanctions Where a party reasonably believes the factual basis for its claim exists it is entitled to proceed with its claims and seek to prove those facts If attempts to prove those facts are fruitless that is still not cause for sanctions where the partys initial belief was well-founded internal citations omitted Thus a voluntary dismissal does not automatically equate to sanctionable conduct Before awardi_ng sanctions the trial court must make explicit l11di11gs that the action was frivolous or so devoid of merit both on the facts and the law as to be completely untenable This burden is a lteavv one Id internal citations omitted emphasis added Additionally the trial courts findings must be based on substantial competent evidence presented to the court at the hearing on attorneys fees or otherwise before the court and in the trial court record Trust Mortg LLC Fer/anti So 3d Fla 4th DCA The trial court must make an inquiry into what the losing party knew or should have known during the fact-establishment process both before and after suit was filed See Chue Lehman So 3d Fla 4th DCA II ARONBERGS AMENDED MOTION MUST BE DENIED FOR FAILURE TO COMPLY WITH THE 21-DAY SAFE HARBOR PROVISION IN FLA STAT AND BECAUSE THE AMENDED MOTION WAS MOOT WHEN IT WAS FILED A ARONBERG FAILED To SERVE DA PRIOR To FILING THE AMENDED MOTION ASSERTING NEW ARGUMENTS IN VIOLATION OF FLA STAT Aronberg did not serve his Amended Motion at any time before filing it and thus failed to comply with the 21-day notice provision set forth in Fla Stat The Amended Motion must be denied outright for that reason alone Because Aronbergs Amended Motion raised arguments not raised in his First Motion and cited evidence not in the record at the time the First Motion was filed Aronberg was required to independently comply with the 21-day safe harbor provision of Section Lago Kame By Design LLC So 3d Fla 4th DCA We hold that if a party files a subsequent or amended motion for sanctions under section and raises an argument that was not raised in the original motion for section sanctions the subsequent motion must independently comply with the twenty-one-day safe harbor provision of section His failure to do so requires denial of the Amended Motion See id As the Fourth District Court of Appeal noted in Lago to hold otherwise would allow a party to raise a new ground for sanctions in a subsequent motion under section without giving the other-side the opportunity to withdraw the offending claim or defense within twenty one days after receiving notice of the new ground for sanctions Id Because Aronbergs barebones First Motion did not include the substantive arguments or cite any evidence now raised in the Amended Motion Aronberg was required to serve the Amended Motion at least days before filing same in order to give The Palm Beach Post the opportunity to withdraw the count that remained against Aronberg Count I The Amended Motion was filed in violation of Fla Stat and must be denied THE AMENDED MOTION WAS MOOT UPON FILlNG On November Aronberg filed the Amended Motion seeking sanctions against Plaintiff relating to Count I of the Complaint against him However the entire action which necessarily included Count I was 267dismissed as to Aronberg on October nineteen days before Aronberg filed his Amended Motion The Amended Motion was therefore moot at the time it was filed on November and must be denied ARONBERGS SELF-DESCRIBED PLACE-MARKER FIRST MOTION FOR SANCTIONS WAS INSUFFICIENT AND DID NOT ABSOLVE AR0NBERG OF THE REQUIREMENT To SERVE THE AMENDED MOTION PRIOR To FILING Aronberg specifically admitted that his First Motion for sanctions under Fla Stat was filed as a place-marker to notify Plaintiff of the State Attorneys intention to seek sanctions should he prevail on the merits at a future substantive hearing See Aronbergs October Reply DE at The I Motion was filed to further put the Plaintiff on notice that the State Attorney would seek sanctions should he prevail on the merits of the lawsuit The First Motion for sanctions was insufficient under Fla Stat I when filed it set forth no substantive arguments as to why Count I of the Amended Complaint was insupportable _based on material facts in the record or the application of existing law to those facts Rather at the time the First Motion was filed there was no evidence in the record supporting the statement by Aronbergs counsel that it was impossible for him or the State Attorneys Office to provide the documents sought in the Complaint Essentially what Aron berg argued in his place-marker First Motion is that if he prevailed in defending the lawsuit his attorneys fees should be awarded as sanctions against Plaintiff in his favor There is no such mechanism as a place-marker motion for sanctions Otherwise any defendant could file a threadbare and conclusory place-marker notice of his intent to seek fees if he ultimately prevails and then seek fees based on later-filed evidence and arguments A motion for sanctions must be supported by the record evidence at the time it is filed Because the First Motion was not so supported it fails under the statute Further as explained above service of the First Motion did not absolve Aron berg of his obligation to serve the Amended Motion on Plaintiff Aronbergs place-marker First Motion appeared to be based erroneously on a prevailing party standard see Reply at which is not the applicable standard for imposing sanctions expressly set forth in Fla Stat I through counsel prior to filing the Amended Motion The First Motion cannot be a place-marker for the mandated service of the Amended Motion I THE ISSUES RAISED IN COUNT I OF THE COMPLAINT WERE NOVEL AND COMPLEX AND PRESENTED A GOOD FAITH ARGUMENT FOR THE as alleged in Count II or for declaratory relief to obtain grand jury materials as alleged in Count The November Amended Motion appears to relate only to Count I of the Complaint although as set forth above no count was pending against Aronberg as of October While Count II alleged that The Palm Beach Post has constitutional and statutory standing to overcome grand jury secrecy provisions in furtherance of justice Count I in contrast did not allege a Section private right of action Instead Count I sought declaratory relief under the U.S Constitutions First Amendment and the Florida Constitutions analogous provisions The Constitutional provisions and interpretive case law along with Fla Stat provided ample grounds for this Court to direct the release of the Epstein grand jury materials to The Palm Beach Post as a surrogate for the public or require the Court to conduct an in camera examination of the same to balance the publics right to know through a free media with Floridas qualified statutory interest in grand jury secrecy as sought in Count I Plaintiff relied upon such authorities in its prior filings and arguments in this matter to propose a good faith interpretation of existing law in support of its declaratory relief claim in Count I See e.g First Amended Complaint DE at Plaintiffs Opposition to Aronbergs Motion to Dismiss Count II of the First Amended Complaint DE at Plaintiffs Memorandum of Law in Opposition to Aronbergs First Motion DE at At the very least Plaintiff provided a good-faith argument for the extension or modification of existing law or the establishment of new law and thus sanctions are not appropriate under Fla Stat I a As to Count II Plaintiff presented various reasoned arguments why Section creates a private right of action in favor of the media on both constitutional and statutory grounds See 267Plaintiffs Opposition to Aron bergs Motion to Dismiss Count Ilofthe First Amended Complaint at pp Moreover the material facts in the record at all times supported Plaintiffs claim against Aronberg When Count I was filed and throughout the litigation prior to Aronbergs dismissal Plaintiff had a good faith basis for understanding that the State Attorneys Office had either access to control over or the ability to impinge prevent or thwart Plaintiffs attempts to obtain public access to the Epstein grand jury materials See e.g Fer/anti So 3d at I reversing trial courts award of fees for naming husband as defendant in mortgage foreclosure proceeding even though husband was never a signatory to mortgage or note and plaintiff made no such allegations but there was at least some triable set of facts under which defendant could have been liable The Amended Motion for sanctions should be denied based on the explicit provisions of Fla Stat a and IV STATE ATTORNEY ARONBERG WAS A PROPER PARTY While Aronberg alleged in the enclosure letter to his First Motion that his office did not have physical possession of the Epstein grand jury materials he nevertheless argued in that same letter relying on Section that the Clerk should not produce them By taking a position against disclosure Aronberg in effect asserted his right to the secrecy of the Epstein grand jury materials Stated another way Aronberg claimed the statutory right for the State Attorneys Office to prevent access to the Epstein grand jury materials a position which actually supported the propriety of naming him in his official capacity as a party defendant in this action As State Attorney Aronberg was not named in this action solely as a custodian of the grand jury records Rather he was a defendant in his official capacity as his office has as its primary interest the protection of its grand jury system In re Grand Jwy Proceedings 2d 11th Cir italics in original In that case the federal government petitioned a Florida State Attorney to tum over state grand jury transcripts In opposition the Broward State Attorney argued against their release citing to Section Later a federal grand jury served a subpoena upon the same State Attorney seeking grand jury transcripts The State Attorney advised the federal court that he would produce the transcripts thereby demonstrating that irrespective of physical possession he had legal authority to obtain and deliver them pursuant to the subpoena For these same reasons State Attorney Aron berg in his official capacity was a necessary party at the very least as a nominal defendant Further even assuming the State Attorney did not have physical possession Florida law does not prohibit his office from requesting the Epstein grand jury materials from the Clerk Indeed as the State Attorney is well aware Florida Statutes Chapter does not bar any State Attorney from accessing grand jury materials even after a defendant has been convicted and sentenced CONCLUSION Based on the foregoing Plaintiff CA Florida Holdings LLC respectfully requests that the Court deny State Attorney Dave Aronbergs Amended Motion for Attorneys Fees in its entirety and grant such other and further relief as the Court deems necessary or proper Respectfully submitted GREENBERG TRAURIG P.A Attorneys/or CA Florida Holdings LLC Publisher of The Palm Beach Post Stephen A Mendelsohn Esq East Las Olas Blvd Ste Fort Lauderdale Florida I Telephone Facsimile I By Isl Stephen A Mendelsohn STEPHEN A MENDELSOHN Florida Bar No mendel sohns i_i gtlaw com smithl gtlaw.com FLServ ice qigtlaw com i!ichael Grygiel MICHAEL GRYGIEL Admitted Pro Hae Vice State St 6th Floor Albany New York Telephone Facsimile grygielm ii gtlaw.com By Isl Nina Boyaiian NINA BOY AJIAN Admitted Pro Hae Vice Century Park East Ste Los 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