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qr8 I fX2 9R lO KV CTX Oo CTX A qr r?qr rq YY Lsy7H4 C,6E IL CTX U3 CTX J,O3_3xx qrM?r q?CX Y9/C 9CX CTX Y10Cy CX CX CX YC YY FV uTl bEWa ȓjJ-8 Gc G??Q9E 9Wq CTX CTX Up i I A 9_ qr qr YY D.X 7s F??Y bc3_c iH CTX CTX A qr 10Cy YY EMq 7H AY mK9Z BY A2 P6L N7 CTX CTX a I I i qr rC CTX CTX 7O I FMM qr qr i I I3 CTX Z6 I L(K4 P:u Z6P CTX y8 Case No AG original proceeding in his favor much less that any such original proceeding was without merit Count II also improperly commingles claims for abuse of process and malicious prosecution II BACKGROUND In December Epstein through prior counsel filed a Complaint naming Edwards as a defendant Edwards filed an Answer and Counterclaim for abuse of process The Court denied Epsteins motion to dismiss Edwards Counterclaim Edwards then filed a motion for summary judgment on Epsteins Complaint and a motion for leave to assert punitive damages The Court i denied Edwards summary judgment motion as premature because Epstein has not been able to obtain records which clearly are calculated to lead to admissible evidence in this case and because of pending privilege issues and denied the punitive damages motion pending finalization of the pleadings On April Epstein filed an Amended Complaint at the Courts direction which consisted of a single count against Edwards for abuse of process and a count against Defendant Scott Rothstein for conspiracy Edwards moved to_ dismiss Epsteins Amended Co plaint At a July hearing the Court granted Edwards motion to dismiss the Amended Complaint with lea to amend Epstein had previously advised the Court at other hearings that further amendments may be needed as discovery proceeds Epstein then filed a Second Amended Complaint which contained a single count against Edwards for abuse of process and a single count against Rothstein for conspiracy to commit abuse of process Edwards moved to dismiss the Second Amended Complaint The Court denied Edwards motion after a hearing on September During that hearing the Court explained that abuse of process requires improper use of process after it has issued and expressed The Court has deferred ruling on privilege issues until the pleadings are finalized Case No AG I serious concerns as to whether Edwards Counterclaim pleaded a viable claim for abuse of process against Epstein Hrg Tr at On October Edwards filed an Amended Counterclaim which contained a claim against Epstein for abuse of process Count I and a claim for malicious prosecution Cow;it II Count I alleges inter alia that Epstein invoked his Fifth Amendment right against self incrimination notwithstanding Epsteins intimidation tactics Edwards clients have continued to prosecute their claims Edwards has not engaged in any unethical or improper conduct Epstein filed civil claims against Edwards and others to intimidate them Epstein knew and has known that his prior Complaint had no factual support and could not be prosecuted to a successful conclusion see also in filing and continuing to prosecute each of the claims against Edwards Epstein acted maliciously and to extort Edwards into abandoning the claims he was prosecuting against Edwards and each pleading motion subpoena and request for production by Epstein was intended to advance Epsteins efforts at extortion and constituted a perversion of process after its initial service Edwards malicious prosecution claim Count II incorporates all allegations of his abuse of process claim and further alleges as follows After unsuccessful efforts to defend and amend his maliciously filed and prosecuted claims over a period of almost two years Epstein abandoned the claims except for an ongoing effort to salvage his abuse of process claim That abandonment brings to successful conclusion Edwards defens against each of the other abandoned claims Edwards seeks damages for abuse of process and malicious prosecution including but not limited to injury to reputation interference fo his professional relationships the loss of the value of his time required to be directed from his professional responsibilities and the cost of defending against Epsteins claims Case No AG ARGUMENT A COUNT I OF THE AMENDED_ COUNTERCLAIM SHOULD BE DISMISSED FOR FAILURE TO STATE A VALID CLAIM FOR ABUSE OF PROCESS Legal Standards Edwards amended abuse of process claim should be dismissed because it is legally insufficient Abuse of process under Florida law requires pleading and proof of the following three elements an illegal improper or perverted use of process an ulterior motive or purpose in exercising the illegal improper or perverted process and resulting damages See e.g I Invs Payless Flea Mki So 3d Fla 4th DCA Valdes GAB Robins North America Inc So 2d Fla 3d DCA In addition it is a fundamental principle of pleading that the complaint to be.sufficient must allege ultimate facts as distinguished from legal conclusions which if proved would establish a cause of action Maiden Carter So 2d Fla 1st DCA See also Brown Gardens by the Sea South Condominium Ass So 2d Fla 4th DCA Florida uses what is commonly considered as a notice pleading concept and it is a fundamental rule that the claims and ultimate facts supporting same must be alleged The reason for the rule is to appraise sic the other party of the nature of the contentions that _he will be called upon to meet and to enable the court to decide whether same sufficient The Amended Counterclaim does not meet even this basic requirement Failure To Allege Illegal Improper or Perverted Use of Process With regard to the first element of the tort of abuse of process it is axiomatic that the mere filing of a complaint and having process served is not enough to show abuse of process Citation omitted The plaintiff must prove improper use of process after it issues I Invs Case No AG So 3d at quotation omitted emphasis added See also Valdes So 2d at Valdes failure to allege any improper willful acts by the appellees during the course the prior action requires dismissal of the abuse of process claim Yoder Adriatico So 2d Fla 5th DCA the tort of abuse of process is concerned with the improper use of process after it issues emphasis added Cazares Church of Scientology So 2d Fla 5th DCA holding that a cause of action for abuse of process would not lie where the Church alleged no act other than the wrongful filing of a lawsuit Peckins Kaye So 2d Fla 2d DCA counterclaim all,egedly causing undue expenditure of time and money did not constitute abuse of process McMurray U-Haul Co So 2d Fla 4th DCA same Blue Weinstein So 2d Fla 3d DCA No abuse of the process apart from the complaint is pied and the effort to do so amount to nothing 267more than a thinly disguised malicious prosecutionclaim Edwards amended abuse of process claim alleges that Epstein filed baseless claims against him see in an attempt to intimidate and extort Edwards into aband ning the claims he was prosecuting against Epstein See Because Edwards abuse of process claim is based on the filing of allegedly insufficient claims it fails to state a valid claim for relief See e.g I Invs So 3d at McMurray So 2d at counterclaim for abuse of process was properly dismissed with prejudice when based on filing of complaint for a multitude of improper purposes The maliciousness or lack of foundation of the asserted cause of action itself is actually irrelevant to the tort of abuse of process Cazares So 2d at Although Edwards attempts to bolster his amended abuse of process claim with conclusory allegations that the alleged perversion of process consists of every pleading Case No AG Epstein has filed and every motion every request for production every subpoena issued and every deposition taken that attempt fails for two reasons First Edwards never allege how or why such acts which on their face do not constitute abuse of process demonstrate a perversion of process or are illegal or improper Indeed far from constituting.perversion of process filing motions arid conducting discovery are common and often necessary actions in every litigation See e.g Fla Civ general provisions authorizing an_d delineating discovery And Edwards has not even attempted to allege that the commonplace actions that Epstein has taken are not related to or in furtherance of this litigation ding alone Edwards bald assertion that Epsteins motions and discovery efforts amount to perversion of process is insufficient Instead Edwards must allege and prove that the process was used for an I immediate purpose other than that for which it was designed Biondo Powers So 2d Fla 4th DCA This is panfoularly true in this case given that the Court has already decreed that the parties must plead with enough specificity to enable it to address critical discovery issues See Hrg Tr at In the absence of specific factual allegations as to what was illegal improper or perverted about the process issued by Epstein after filing the Complaint in this action Edwards has failed to plead the first element of abuse of process And for the same reason Edwards amended abuse of process claim does not provide a short and plain statement of the ultimate facts showing that the pleader is entitled to relief as it must Fla Civ See also Brown So 2d at In failing to plead the first required element Edwards has failed to plead an abuse of process claim and therefore Count I should be dismissed Second the crux of Edwards claim is that the lawsuit itself is without merit and thus everything within it constitutes an abuse of process and should be dismissed Count I of the Case No AG Amended Counterclaim is nothing more than an invalid malicious prosecution claim in disguise 260because it is simply targeted at Epsteins entir case against Edwards and does not allege how the lawsuit compels Edwards to do some collateral action not properly involved in the proceeding Miami Herald Publg Co Ferre Supp S.D Fla Failure To Allege An Ulterior Motive or Purpose Even if Edwards had alleged perverted use of process which he has not he has offered nothing more than vague and unfounded allegations to support the second required element in an abuse of process claim ulterior motive or malicious intent in r4 that Epstein effectively conceded illicit sexual activity in rs that many civil suits against Epstein remain pending and in r,r6 that his victims and their legal counsel have been intimidated into abandoning legitimate claims The allegations do not identify which suits remain pending do not identify which victims and their iegal co:unsel have been intimidated anc do not identify a particular agreement pursuant to which Epstein allegedly effectively concede illicit sexual activity with a large number of female children Moreovfr Edwards claims of intiin.idation are undermined by his contrary allegations that his clients were not intimidated See Without specificity regarding who what where and when Epstein cannot effectively formulate a response and the door will be open to discovery into matters not likely to lead to relevant evidence See Brown So 2d at Again Edwards new allegations do not mask the fact that Count I is nothing more than a weak attempt at a malicious prosecution cla.im in d_isguise as squarely demonstrated by the fact that all of Edwards abuse of process allegations are incorporated into his malicious prosecution claim Moreover all of the allegations in of the Amended Counterclaim refer to events that occured before filing of the Complaint It is well established however that events that Case No AG occur before the filing of a complaint and service of process are not sufficient-to satisfy the element of ulterior motive or malice See Marty Gresh So 2d Fla 1st DCA Invs So 3d at Accordingly Edwards abuse of process claim should be dismissed for the additional and independently sufficient reason that he has not properly alleged the second element required to state an abuse of process claim Failure to Plead Damages Finally Edwards damages claim including but not limited to various elements of damages should be stricken First the open-ended phrase including but not limited to does not put Epstein on notice as to the specific damages that Edwards is claiming and must therefore be struck See Hrg Tr at this Court struck similar language from Epsteins Amended Complaint Brown So 2d at Second Edwards demand for damages to reputation is a thinly-veiled and impermissible attempt to inject defamation into the litigation Similarly Edwards demand for damages for interference in his professional relationships is a thinly-veiled and impermissible attempt to inject tortious interference into the litigation Such kitchen-sink pleading denies Epstein due process and due notice These are separate claims with separate defenses commingled in a single count in violation of Fla Civ which requires separate statements of claim Third there is no legal authority which permits Edwards to recover damages abuse of process for the loss of the value of his time required to be diverted from his professional responsibilities A litigant cannot recover damages for the time spent defending a claim See e.g Miami National Bank Nunez So 2d Fla 3dDCA We find no precedent for awarding a litigant compensatory damages for her own participation in the _preparation for litigation Maulden Corbin So 2d Fla 1st DCA I Case No AG ruling that an attorney litigant was not entitled to compensation for his time participating in litigation when he engaged counsel to represent him in the matter Since Edwards has engaged Mr Scarola from the outset of this case Edwards cannot claim his time assisting counsel or participating in this case as damages inally Edwards seeks damages for the cost of defending against sic Epsteins spurious and baseless claims Although a party who recovers a judgment is entitled to taxable I costs pursuant to Fla Stat a party is not entitled to an award of attorneys fees unless there is a statutory or contractual entitlement pleaded and established To the extent Edwards seeks attorneys fees the claim should be denied because of his failure to plead entitlement by statute or contract See Florida Hurricane Prof Awning Inc Pastiria So 3d Fla 4th DCA In short Edwards has failed to plead that he has suffered any legally cognizable damages Thus he has failed to plead the third element of his abuse of process claim As a result Edwards Count I should be denied COUNT II OF THE AMENDED COUNTERCLAIM SHOULD BE DISMISSED FOR FAILURE TO STATE A VALID CLAIM FOR MALICIOUS PROSECUTION Malicious prosecution requires pleading and proof of the following elements an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued the present defendant was the legal cause of the original proceeding against _the present plaintiff as the defendant in the original proceeding the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff there was an absence of probable cause for the original proceeding there was malice on the part of the present defendant and the plaintiff suffered damage as a result of the original proceeding Alamo Rent-A-Car Mancusi So 2d Fla emphasis Case No AG added A claim for malicious prosecution is defeated if a plaintiff fails to allege or establish any one of these six elements Id A bona fide termination of the proceedings has been described as follows It is axiomatic that a plaintiff in a malicious prosecution case must as an 267essen ial elements of that cause of action estaplish that the prior litigation giving rise to the malicious prosecution suit ended with a bona fide termination in that partys favor That is a fancy phrase which means that the first suit on which the malicious prosecution suit is based ended in a manner indicating the original defendants and current plaintiffs innocence of the charges or allegations contained in th first suit so that a court handling the malicious prosecution suit can conclude with confidence that the termination ofthe first suit was not only favorable to the defendant in that suit but also that it demonstrated the first suits lack of merit Doss Banko Am NA So 2d Fla 5th DCA emphasis added Given the requirement that an original or prior proceeding terminate in favor of a malicious prosecution claimant under settled Florida law malicious prosecution may not be brought as a counterclaim when directed against the filing of some or all of the counts in the pending main action Blue So 2d at That is precisely what Edwards has done As explained in Cazares So 2d at Florida courts clearly hold that an action for malicious prosecution cannot be filed until the original action is concluded thus precluding any counterclaims from being filed in the underlying action itself See also Bieley Du Pont Glore Forgan Inc So 2d Fla 3d DCA A counterclaim for malicious _prosecution or abuse or process cannot be maintained in a pending action since the abuse claimed is the pending suit which cannot be said to have terminated in favor of the countei claimant American Salvage Jobbing Co Inc Salomon So 2d Fla 3d IO Case No AG DCA a malicious prosecution counterclaim was properly dismissed where the complaint was still pending It is readily apparent that an action which is pending cannot be said to be terminated in favor of the counterclaimant Based upon the foregoing authorities Edwards malicious prosecution counterclaim fails to state a valid claim for relief because there has been no terpiination of the original proceeding by definition a proceeding different from and prior to the present action as absolutely required to state a claim for malicious prosecution Edwards has not pleaded and cannot plead that the first suit on which the malicious prosecution suit is based ended Doss So 2d at emphasis added Edwards has not pleaded and certainly cannot plead that Epsteins pending suit against him has terminated in Edwards favor Indeed Edwards Amended Counterclaim squarely violates the rule that llmalicious pros cution may not be brought as a counterclaim when directed against the filing of some or all of the counts in the pending action Blue So 2d at Our decisions holding_ that malicious prosecution may not be brought as a counterclaim when directed against the filing of some or all of the counts in the pending i:nain action are sound and are herein affirmed Thus unless and until Epsteins pending action against Edwards terminates in Edwards favor any malicious prosecution claim by wards is invalid as a matter of law Moreover Edwards cannot save his malicious prosecution claim with his allegations in rt of Count II that Epstein abandoned certain other claims and that abandonment brings to successful conclusion Edwards defense against each of the other abandoned claims These allegations do not satisfy the requirement that Edwards plead that a prior action brought by Epstein terminated in Edwards favor The mere dropping or amendment of claims in the course of pending litigation a very common occurrence does not by definition constitute the Case No AG termination of a proceeding See e.g American Salvage Jobbing Co Inc So 2d at It is readily apparent that an action which is pending cannot be said to be terminated in favor of the counterclaimant Moreover the mere dropping or amending of a claim in ongoing litigation pursuant to an interlocutory order cannot constitute a favorable determination of the action or proceeding as unquestionably required to state a claim for malicious prosecution Absent allegations by Edwards that a prior proceeding terminated in his favor his malicious prosecution claim is not actionable Finally because Edwards adopts in Count II his damage claims alleged in Count I Epstein incorporates by reference herein his damages arguments as stated above In sum Edwards claim for malicious prosecution is defective and should be dismissed with prejudice COUNT II SHOULD BE DISMISSED BECAUSE IT CONTAINS COMMINGLED CLAIMS Count II should be dismissed for the additional and independently sufficient reason that it improperly incorporates all allegations supporting the abuse of process claim thereby impermissibly commingling the two claims Florida courts recognize that commingling multiple legal claims in a single count severely hampers a defendants ability to prepare a responsive pleading and require that such claims be repled See e.g Gerantine Coastal Sec ys So 2d Fla 5th DCA By the time a defendant reached the sixth count of the complaint he would find himself faced with previous paragraphs many with numerous subdivisions replete with evidentiary facts and together forming a total morass which would make it difficult if not impossible to respond to Frugoli Winn-Dixie Stores So 2d Fla 1st DCA requiring claims to be alleged in separate counts and not intermingled Such shotgun pleadings are rejected for good reason Experience teaches that Case No AG unless cases are pied clearly and precisely issues are not joined discovery is not controlled the trial courts docket becomes unmanageable the litigants suffer and society loses confidence in the courts ability to administer justice Anderson Dist Bd of Trs of Cent Fla Cmty Coll 3d 11th Cir CONCLUSION Based upon the foregoing arguments and authorities Plaintiff/Counter-Defendant Jeffrey Epstein respectfully requests that the Court disn:iiss Defendant/Counter-Plaintiff Bradley Edwards Amended Counterclaim Respectfully submitted k.ct1 S,r Joseph Ackerman Jr Florida Bar No FOWLER WHITE Case No AG CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via mail 1/Sf and U.S Mail this _rf_ ay of October to Jack Scarola Esq Searcy Denney Scarola Barnhart Shipley A Palm Beach Lakes Blvd West Palm Beach FL Jack A Goldberger Esq Atterbury Goldberger Weiss P.A Australian A venue South Suite West Palm Beach FL Marc Nurik Esq Law Offices of Marc Nurik One Broward Blvd Suite Ft Lauderdale FL By
