Filing E-Filed PM JEFFREY EPSTEIN Plaintiff/Counter Defendant vs SCOTT ROTHSTEIN individually and BRADLEY EDWARDS individually Defendants/Counter-Plaintiffs IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO I RESPONSE TO PLAINTIFFS MOTION TO AMEND ANSWER AND AFFIRMATIVE DEFENSES Defendant/Counter-Plaintiff Bradley Edwards hereby files this Response to the Motion to Amend Answer and Affirmative Defenses filed by Plaintiff/Counter-Defendant Jeffrey Epstein For the reasons stated below the motion should be denied Eight years after this lawsuit was filed and just prior to a special set trial date Epstein has filed a motion to amend to raise five new affirmative defenses No explanation has been offered as to why Epstein waited eight years to raise these defenses FILED PALM BEACH COUNTY FL SHARON BOCK CLERK PM This court is authorized to deny such a motion on any of three grounds that the amendment would prejudice the opposing party that the privilege to amend has been abused or that the amendment would be futile Vaughn Boerckel So.3d Fla 4th DCA Each of those three grounds exists here Allowing Epstein to amend his answer to raise five new affirmative defenses would clearly prejudice Edwards since those affirmative defenses raise multiple factual issues which would require additional discovery expert witnesses and possibly even counterpleading by Edwards Additionally Epstein has abused the privilege to amend by failing to raise these affirmative defenses until eight years into the case especially since he has made no attempt to justify that delay On each of those grounds alone this Court should deny his Motion to Amend See Levine United Companies Life Ins Co So.2d Fla Brown Montgomery Ward So.2d Fla 1st DCA Independent of that this Court should also deny Epsteins Motion to Amend because two of the proposed affirmative defenses are not even affirmative defenses at all and the other three are as a matter of law not valid defenses to a malicious prosecution claim Thus the amendments would be futile See McCray Bellsouth Telecommunications Inc So.3d Fla 4th DCA In State Cohen So.2d Fla the Florida Supreme Court defined an affirmative defense as follows An affirmative defense is any defense that assumes the complaint or charges to be correct but raises other facts that if true would establish a valid excuse or justification or a right to engage in the conduct in question Here none of Edwards five proposed affirmatives defenses provide a valid excuse or justification for the filing of his baseless litigation against Edwards This will be discussed in more detail infra It should also be noted that a fundamental premise of three of the five proposed affirmatives defenses is that Edwards claim is not really for malicious prosecution but is really a defamation claim which might be subject to these new affirmative defenses However Edwards has never alleged a defamation claim against Epstein arising from the circumstances at issue here Additionally the Fourth District has specifically ruled that Epsteins claim of litigation privilege was invalid because it does not apply to a malicious prosecution claim although it does apply to a defamation claim Edwards Epstein So.3d Fla 4th DCA and the Florida Supreme Court ruled the same way see Debrincat Fischer So.3d Fla Therefore as discussed in more detail infra Epstein cannot convert Edwards malicious prosecution claim into a defamation cause of action in order to justify these untimely and inapplicable defenses The Fifth Affirmative Defense Epstein contends his underlying lawsuit against Edwards was a form of petitioning government for redress and therefore Edwards cannot prevail unless he can show that Epsteins lawsuit was a sham under the Noerr-Pennington doctrine This proposed affirmative defense is invalid as a matter of law on multiple levels United Mine Workers Pennington U.S and Eastern Railroad Presence Conference Noerr Motor Freight Inc U.S both involved claims of antitrust violations under the federal Sherman Act U.S.C The conduct at issue was a public relations campaign and lobbying efforts designed to cause legislative and executive branches of government to enact anticompetitive laws The Supreme Court held that unless those efforts were proven to have been a sham they were protected from being antitrust violations by the First Amendment right to petition the government At this point it is reasonable to ask what those decisions have to do with a malicious prosecution case and the simple answer is-nothing Neither Noerr nor Pennington addressed petitioning the government in judicial forums which is governed by a different standard and which is completely inapplicable to Epsteins baseless lawsuit against Edwards The United States Supreme Court has made it clear that baseless litigation is not entitled to any protection under the First Amendment right to petition In Bill Johnsons Restaurants Inc National Labor Relations Board U.S the Court stated Just as false statements are not immunized by the First Amendment right to freedom of speech see Herbert Lando U.S S.Ct L.Ed.2d Gertz Robert Welch Inc U.S S.Ct L.Ed.2d baseless litigation is not immunized by the First Amendment right to petition Emphasis added The Court has also distinguished judicial proceedings from petitioning activity of the legislature and executive branch in the context of the Noerr-Pennington doctrine in California Motor Transport Co Trucking Unlimited U.S stating Misrepresentations condoned in the political arena are not immunized when used in the adjudicatory process Here Edwards malicious prosecution claim alleges that Epsteins lawsuit against him was baseless As the Florida Supreme Court has stated an affirmative defense assumes the truth of the claim alleged and raises a valid excuse or justification for that conduct Cohen supra Since Edwards alleges that Epsteins suit was baseless and the U.S Supreme Court has ruled that baseless litigation receives no protection from the First Amendment right to petition Epsteins proposed Fifth Affirmative Defense does not as a matter of law state a valid defense Epsteins proposed Fifth Affirmative Defense is also fatally defective in contending that the sham test must be used to evaluate Epsteins lawsuit The Florida Supreme Court has unequivocally rejected that standard in Londono Turkey Creek Inc So.2d Fla We decline to adopt the sham test because we find that the current law in Florida already provides protection for the First Amendment right to petition the government Moreover the analysis in Londono is consistent with the argument made above i.e that the right to petition under the First Amendment of the Federal Constitution or Article I of the Florida Constitution has no application to immunize nor limit a malicious prosecution claim Londono involved a conflict between a homeowners association and a developer The homeowners association filed a civil action against the developer and also lobbied local zoning officials to take positions adverse to the developer The developer prevailed in the civil action and then brought a claim for malicious prosecution and numerous other torts against the homeowners association The Florida Supreme Court first determined whether the developer could maintain a malicious prosecution action against the homeowners and determined that claim was viable So.2d at Thereafter the Florida Supreme Court considered whether the other allegedly tortious conduct of the homeowners was protected by the First Amendment right to petition the government However the Court specifically did not include the malicious prosecution claim within that analysis obviously recognizing that defense was inapplicable to such tortious conduct Id at In that analysis the Florida Supreme Court specifically declined to adopt the sham test to determine whether the homeowners lobbying conduct was protected by the First Amendment right to petition but instead followed its prior decision in Nodar Galbreath So.2d Fla In Nodar the Florida Supreme Court held that where a citizen was sued for statements made at a public school board meeting the right to petition justified a qualified privilege with respect to defamation But the Court ruled that qualified privilege only eliminated the presumption of malice attaching to defamatory statements by law So.2d at However there is no presumption of malice in a malicious prosecution case as it is a separate element of the tort which the plaintiff must prove Fischer Debrincat So.3d Fla 4th DCA approved So.3d Fla As noted by Justice Scalia a malicious prosecution claim incorporates a qualified privilege within its elements Kalina Fletcher U.S Scalia concurring At common law therefore Kalina would have been protected by something resembling qualified immunity if she were sued for malicious prosecution The tortious act in such a case would have been her decision to bring criminal charges against Fletcher and liability would attach only if Fletcher could prove that the prosecution was malicious without probable cause and ultimately unsuccessful As noted in other filings Edwards acknowledges that in malicious prosecution cases malic can be inferred from inter alia lack of probable cause gross negligence or great indifference to persons on the rights of others see Durkin Davis So.2d Fla nd DCA However there is no presumption of malice in malicious prosecution cases Thus Nodar cited in Epsteins proposed Fifth Affirmative Defense is inapplicable here since malice is not presumed in a malicious prosecution action Finally Epsteins proposed Fifth Affirmative Defense is fatally defective because his filing of RICO civil theft and extortion charges against Edwards does not fall within the scope of the right to petition the government In Gertz Robert Welch Inc U.S the Court rejected the contention that private attorneys as officers of the court are public officials for purposes of the First Amendment The Court stated Respondents suggestion would sweep all lawyers under the New York Times rule as officers of the court and distort the plain meaning of the public official category beyond all recognition We decline to follow it Furthermore in Nodar supra the Florida Supreme Court followed Gertz and concluded that the public school teacher was neither an elected nor policy making official sufficient to trigger First Amendment protection even though she was a government employee Thus as a matter of law Epsteins underlying suit against Edwards cannot constitute petitioning the government for purposes of the First Amendment or Article I of the Florida Constitution Sixth Seventh and Eighth Affirmative Defenses Epsteins proposed Sixth Seventh and Eighth Affirmative Defenses are all premised on his contention that Edwards claims are nothing more than defamation claims which are barred by defenses applicable to defamation claims Proposed Answer That premise is wrong and therefore all three defenses which can apply only to defamation actions are invalid as a matter of law The fundamental flaw in these three affirmative defenses is Epsteins characterization of Edwards claim as nothing more than defamation Edwards counterclaims in this proceeding have never included a count for defamation Moreover malicious prosecution is indisputably a separate and independent tort Additionally Epsteins prior attempt to defeat Edwards claim based on a defense to defamation was unsuccessful as a matter of law Previously in this case Epstein moved for summary judgment arguing inter alia that the litigation privilege which is an absolute bar to a defamation claim barred Edwards malicious prosecution claim This Court granted summary judgment but was reversed by the Fourth District based on its determination that the Third District precedent this Court relied upon should not be followed Edwards Epstein So.3d Fla 4th DCA Epstein sought review in the Florida Supreme Court but became a tag along case to Debrincat Fisher No In Debrincat the Florida Supreme Court ruled that the litigation privilege did not apply to bar or limit a malicious prosecution claim Debrincat Fisher So.3d Fla Thereafter the Supreme Court issued an order to show cause directing Epstein to show why Debrincat was not controlling in this case Exhibit A Epstein responded and conceded that the petitioner would show no cause why Debrincat is not controlling Exhibit As a result the Supreme Court declined review Therefore Epstein conceded that this action is a malicious prosecution claim which unlike a defamation claim is not barred nor limited by the litigation privilege Nonetheless he now attempts to convert Edwards claim into a defamation claim in order to raise multiple affirmative defenses Epstein attempts to justify this conversion by string citing cases for the proposition that a plaintiff may not avoid defenses that apply to defamation actions by characterizing them as torts which are not subject to those restrictions Proposed Answer Those cases do not support Epsteins position because none of them involve malicious prosecution claims in which the plaintiff properly alleged all elements of that tort The cases relied upon by Epstein all involve the single publication/single action rule which prohibits multiple claims arising from a single publication upon which a failed defamation claim was based E.g Calloway Land Cattle Co Inc Banyon Lakes Corp So.2d Fla 4th DCA There was no failed defamation claim in the case sub judice and thus that rule does not apply Furthermore none of the cases cited by Epstein involved circumstances in which a valid malicious prosecution claim was at issue Also as noted in Calloway Land there are two exceptions to the application of the single publication/single action rule both of which apply in this case First where a plaintiff pleads facts and circumstances other than the defamatory statement to support the independent tort the rule does not apply See Primarica Financial Services Inc Mitchell F.Supp 2d S.D Fla cited in Calloway Land So.2d at Here Plaintiff has pled other facts and circumstances since he has successfully pled the independent tort of malicious prosecution Therefore the single publication/single action rule does not apply as a matter of law A second exception to the rule is where the plaintiff did not have a defamation claim See Heekin CBS Broadcasting Inc So.2d Fla 2d DCA cited in Calloway Land So.2d at disapproved on other grounds by Anderson Gannett Co Inc So.2d Fla Here Edwards has never alleged a defamation claim against Epstein Moreover such a claim would have been foreclosed by the litigation privilege which the Florida Supreme Court has held does not bar Edwards malicious prosecution claim Debrincat supra Based on the above Epsteins proposed Sixth Affirmative Defense and Seventh Affirmative Defense which raise defenses solely applicable to defamation claims are inapplicable as a matter of law in this case Additionally the proposed Sixth Affirmative Defense which contends that Edwards is a general or limited purpose public figure fails as a matter of law for another reason In Gertz supra the United States Supreme Court rejected the contention that a private attorney representing a private client in litigation matters became a public figure even though there was significant publicity surrounding the case Here Edwards did nothing to inject himself into any public controversy relevant to Epsteins lawsuit against him and as the Court in Gertz stated U.S at We would not lightly assume that a citizens part1c1pation in community and professional affairs rendered him a public figure for all purposes The court in Gertz concluded that the petitioner a private attorney was not a public figure since his participation related solely to his representation of a private client U.S at For the same reason Epsteins contention his proposed Seventh Affirmative Defense that the matters relevant to Epsteins initial lawsuit involve a matter of public concern is invalid That position is contradicted by the one case Epstein relies upon Gertz supra Therefore in addition to being a defense to a different tort the proposed Seventh Affirmative Defense does not apply as a matter of law Epsteins proposed Eighth Affirmative Defense is not actually an affirmative defense It only contains his legal argument that Edwards claims are nothing more than defamation claims which are bared by defenses applicable to defamation claims as set forth in the defenses above Proposed Answer As a result it is not an affirmative defense as defined in Cohen supra but is only a statement of a legal proposition Therefore allowing Epstein to amend his answer to include it as an affirmative defense would be futile Ninth Affirmative Defense In his proposed Ninth Affirmative Defense Epstein contends common law and statutory principles that govern awards of punitive damages are not sufficient to assure Epstein due process of law On a threshold level this is not an affirmative defense it is a constitutional challenge to the validity of this Courts proceedings Therefore denial of leave to amend is warranted Epsteins proposed Ninth Affirmative Defenses does not establish a valid excuse or justification for engaging in the conduct alleged in Edwards counterclaim as required by Cohen supra Instead it contents that this Court is incapable of providing due process to him in these proceedings as to any award of punitive damages Epstein does not specify any past proceedings in which this Court violated his right to due process with respect to the punitive damages nor does he identify any possible future proceedings that would violate his due process rights Thus the argument he raises is premature but more importantly it is not an affirmative defense as a matter of law Therefore there is no basis for this Court to grant him leave to amend his answer to the counterclaim to add it as an affirmative defense Edwards would note that there are multiple procedures in place to protect a defendants due process rights in proceedings relating to punitive damages The Florida Supreme Court has considered due process principles and has established procedures by which the rights of the defendant will be preserved when litigating punitive damages claims W.R Grace Co.-Conn Waters So.2d Fla There the Court held When presented with a timely motion should bifurcate the determination of the amount of punitive damages from the remaining issues at trial At the first stage of a trial in which punitive damages are an issue the jury should hear evidence regarding liability for actual damages the amount of actual damages and liability for punitive damages and should make determinations on those issues If at the first stage the jury determines that punitive damages are warranted the same jury should then hear evidence relevant to the amount of punitive damages and should determine the amount for which the defendant is liable At this second stage evidence of previous punitive awards may be introduced by the defendant in mitigation Id at These procedures are meant to eliminate the possibility that a defendant will be prejudiced during the liability phase of the case with presentation of evidence related to the determination of the amount of punitive damages The procedures established by the Florida Supreme Court in W.R Grace have been applied consistently to ensure the due process rights of defendants are met See Persaud Cortes So.3d Fla 5th DCA GEICO Gen Ins Co Dixon So.3d Fla 3d DCA review denied No SCl WL Fla May St Paul Mercury Ins Co Coucher So.2d Fla 5th DCA Owens-Coming Fiberglas Corp Ballard So.2d Fla Dessanti Contreras So.2d Fla 4th DCA Soliday 7-Eleven Inc No WL at M.D Fla June see also Owens-Coming Fiberglas Corp Rivera So.2d Fla 3d DCA finding no due process violation as to punitive damage award where defendant did not avail itself of the protection offered by the option of bifurcation There is no reason why the bifurcation process could not also be applied here to ensure that Epsteins due process rights are preserved There are also post-trial procedures available to protect the due process rights of a defendant See State Farm Mut Auto Ins Co Campbell U.S BMW of Am Inc Gore U.S These procedures have been applied consistently to protect the due process rights of defendants where a grossly excessive or arbitrary punitive damage award is awarded See Campbell supra Engle Liggett Group Inc So.2d Fla R.J Reynolds Tobacco Co Townsend So.3d Fla 1st DCA Langmead Admiral Cruises Inc So.2d Fla 3d DCA Finally the Florida Legislature has enacted a statutory scheme granting protection to defendants in pretrial and post-trial proceedings See Fla Stat Epstein has failed to identify any shortcoming in this legislative scheme or the procedures adopted by the Florida Supreme Court which subject him to any violation of his due process rights Therefore for the reasons stated above Epsteins Motion to Amend Answer and Affirmative Defenses should be denied I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list by email on November kbt Jack Scarola Esq SEARCY DENNEY SCAROLA BARNHART SHIPLEY P.A Palm Beach Lakes Blvd West Palm Beach FL eservice searcylaw.com sx searcylaw.com and BURLINGTON ROCKENBACH P.A Courthouse Commons/Suite West Railroad A venue West Palm Beach FL Attorneys for Bradley Edwards pmb FLAppellateLaw.com njs FLAppellateLaw.com kbt FLAppellateLaw.com By:/s Philip Burlington PHILIP BURLINGTON Florida Bar No SERVICE LIST Epstein Rothstein/Edwards Case No Scott Link Esq Kara Rockenbach Esq Angela Many Esq LINK ROCKENBACH P.A Palm Beach Lakes Boulevard Suite West Palm Beach Florida Scott linkrocklaw.com Kara linkrocklaw.com Troy linkrocklaw.com Eservice linkrocklaw.com Tina linkrocklaw.com Angela linkrocklaw.com Tanya linkrocklaw.com Attorneys for Jeffrey Epstein Mark Nurik Esq LAW OFFICES OF MARC NURIK Broward Blvd Ste Fort Lauderdale FL marc nuriklaw.com Attorneys for Scott Rothstein Jack Goldberger Esq ATTERBURY,GOLDBERGER WEISS P.A Australian Ave Ste West Palm Beach FL jgoldberger agwpa.com smahoney agwpa.com Attorneys for Jeffrey Epstein Bradley Edwards Esq FARMER JAFFE WEIS SING EDWARDS FISTOS LEHRMAN P.L Andrews Ave Ste Fort Lauderdale FL staff.efile pathtojustice.com brad pathtojustice.com Filing E-Filed AM upreme Court of jflortba WEDNESDAY MAY JEFFREY EPSTEIN Petitioner CASE NO Lower Tribunal No vs BRADLEY EDWARDS Filing E-Filed PM IN THE SUPREME COURT OF FLORIDA CASE NO JEFFREY EPSTEIN Petitioner BRADLEY EDWARDS et al Respondents Florida Bar No Tel Fax paulappeal gmail.com paul paulmorrislaw.com Paul Morris PAUL MORRIS Counsel for Petitioner CERTIFICATE OF SERVICE I HEREBY CERTIFY that this response was emailed to counsel on the list below this 18th day of May Paul Morris PAUL MORRIS SERVICE LIST Philip Burlington Burlington Rockenbach P.A Courthouse 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