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at the time Epstein filed his initial suit and his Amended Complaints Edwards was a partner at Rothstein Rosenfeld Adler RRA from April through November a period during which RRA was a front for the largest Ponzi scheme in Floridas history In early November as a result of widely publicized press accounts Epstein learned that RRA had imploded and that three civil cases that RRA was prosecuting against Epstein the Epstein Cases were used to defraud investors of millions of dollars and fund the RRA Ponzi scheme RRA partner Edwards was lead counsel and the supervising attorney over each of the Epstein Cases used to lure investors and fund the Ponzi scheme In late November Epstein was also alerted that as a result of the Ponzi scheme at RRA the law firm of Conrad Scherer filed a Complaint against Scott Rothstein and others Razorback Funding LLC et al Scott Rothstein et al Case No hereinafter referenced as the Razorback Complaint on behalf of some of the Ponzi scheme investors a case that settled for approximately million dollars In the Razorback Complaint Mr Scherer detailed RRAs fraudulent use of the Epstein Cases alleging Rothstein used RRAs representation in the Epstein case to pursue issues and evidence unrelated to the underlying litigation but which was potentially beneficial to lure investors into the Ponzi scheme For instance RRA relentlessly pursued flight data and passenger manifests regarding flights Epstein took with other famous individuals knowing full well that no under A separate index and copies of all items cited in the undisputed facts is provided with the full Motion Epstein Rothstein et al age sic women were on board and no illicit activities took place RRA also inappropriately attempted to take the depositions of these celebrities in a deliberate effort to bolster Rothsteins lies See Razorback Amended Complaint page emphasis added The deposition subpoenas and discovery requests to which the Razorback Complaint refers were served and filed by Edwards at the time that Edwards was a partner at RRA and the lead attorney on the Epstein Cases On December also before Epstein filed suit the Information against Scott Rothstein was filed by the Federal government The Information repeatedly references RRA as the Enterprise with which Rothstein and his co-conspirators were associated and by which they were employed The Information charges that Rothstein and his conspirators known and unknown participated in or conspired to participate in racketeering activity to further the Ponzi scheme Edwardss partner at RRA Scott Rothstein admitted to and was convicted for these acts and is serving a fifty year sentence Several other partners of RRA have also been Federally charged and/or convicted and the Government has confirmed that the events at RRA are still the subject of an active ongoing investigation Also as described fully in Epsteins Summary Judgment Motion highly questionable litigation practices in the Epstein Cases including those described above in the Razorback Complaint intensified drastically during the short six months during which Edwards was a partner at RRA with Edwards admitting that litigation expenditures increased from to approximately during those short six months Epstein was forced to disburse funds for attorneys fees in resisting this onslaught and according to the allegations made in the Razorback Complaint at least some of these efforts were made to further the Ponzi Scheme On July Edwards held a meeting at RRA with all attorneys regarding the Epstein Cases The next day on July Edwards filed a two hundred thirty-four page one fifty-six count federal complaint against Epstein on behalf of a plaintiff LM for whom Edwards was already prosecuting a case against Epstein in state court involving the very same facts alleged in the federal Epstein Rothstein et al complaint The complaint was filed in federal court but was never served on Epstein It was admittedly shown to the Ponzi scheme investors Also during this time when according to Rothstein and the Federal government the Ponzi scheme was unraveling and was in desperate need of funds from new investors Edwards filed a motion in Federal court seeking a fifteen million dollar bond from Epstein in the Jane Doe case that was being touted to the investors In the motion Edwards detailed at great length Epsteins net worth calling him a billionaire and listing in detail the vehicles planes and other items of substantial value he purportedly owned The Court flatly rejected the motion calling it entirely devoid of evidence and declining to find any misconduct by Epstein to justify the bond based upon the adverse inferences relied upon by Plaintiff See Order in Jane Doe No Epstein Dated November Although other undisputed facts are cited in support of Epsteins Motion for Summary Judgment the above facts alone require that it be granted I MEMORANDUM OF LAW Here as undeniably established by Edwardss own pleadings and discovery the litigation privilege completely bars both of Edwardss causes of action mandating Summary Judgment Wolfe Foreman Fla Weekly July In addition to the litigation privileges absolute bar of both Edwardss causes of action Edwards cannot as a matter of law establish all of the essential elements of either cause of action he asserts against Epstein rendering all other facts offered by Edwards immaterial see Celotex Corp Catrett U.S further warranting Summary Judgment In his Opposition Motion Edwards attempts to curtail the fact that his own pleadings and discovery responses irrefutably establish that all allegations about which he complains in his lawsuit occurred solely during the course of litigation Edwardss Fourth Amended Counterclaim and discovery responses to questions directly germane to his causes of action undeniably prove that both of Edwards causes of action are absolutely barred by the litigation privilege As unequivocally stated in the recent decision of Wolfe Foreman FLA WEEKLY July and all of the Florida Supreme Epstein Rothstein et al Court cases cited therein Floridas litigation privilege provides to all persons involved in judicial proceedings an absolute privilege from civil liability for actions taken in relation to those proceedings including in an action for abuse of process or malicious prosecution The Florida Supreme Court explained the following policy reasons for the litigation privilege In balancing policy considerations we find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue so long as the act has some relation to the proceeding Levin Middlebrooks Moves Mitchell P.A U.S Fire Ins Co So.2d Fla emphasis added While Edwardss Opposition Motion cites to a litany of cases that purportedly state that the litigation privilege is inapposite to a cause of action for malicious prosecution those cases were incontrovertibly decided before the Wolfe decision Wolfe Foreman FLA WEEKLY July is directly on point with the facts and law presented in the case at hand and conducts a detailed analysis of the seminal Florida Supreme Court cases germane to the issues In Wolfe the Third District Court of Appeal affirmed the trial courts order granting a motion for judgment on the pleadings in an abuse of process and malicious prosecution action finding that the litigation privilege applied to and barred both causes of action Id The courts focus was on whether the acts alleged occurr ed during the course of a judicial proceeding so long as the act has some relation to the proceeding Id citing Levin So.2d at The court relying upon Florida Supreme Court cases held that because the acts relating to abuse of process occurred after the complaint was filed and were related to the judicial proceedings the abuse of process cause of action was completely barred Id emphasis added Likewise in conducting its analysis of the cause of action for malicious prosecution which was based on the filing of a complaint just as with the case at hand the Wolfe court stated that it is guided and restrained by the broad language and application of the privilege articulated by the Florida Supreme Court in Levin and Echevarria In Levin the Florida Supreme Court held that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding so long as the act has some relation to the proceeding Levin So 2d at In Echevarria the Court reiterated its broad application of privilege applies in all causes of Epstein Rothstein et al action statutory as well as common law Echevarria So 2d at Id at The Wolfe court continued unequivocally stating that It is difficult to imagine any act that would fit more firmly within the parameters of Levin and Echevarria than the actual filing of a complaint The filing of a complaint which initiates the judicial proceedings obviously occurs during the course of a judicial proceeding and relates to the proceeding Because the Florida Supreme Court has clearly and unambiguously stated not once but twice that the litigation privilege applies to all causes of actions and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to def end their actions in a subsequent civil action for misconduct we are obligated to conclude that the act complained of here the filing of the complaint is protected by the litigation privilege Wolfe Foreman FLA WEEKLY July emphasis added Similarly in the case at hand as established by Edwardss own pleadings and discovery his exclusive basis for his cause of action for abuse of process against Epstein is Jach and every pleading filed by and on behalf of EPSTEIN in his prosecution of every claim against EDWARDS every motion every request for production every subpoena issued and every deposition taken as detailed on the docket sheet See Edwards Fourth Amended Counterclaim Edwards reiterates this point in his responses to discovery requests for information specifying Epsteins alleged abuse of process responding that every pleading motion notice and discovery request served by the Plaintiff on Bradley Edwards in this case and/or the date of service of each of the above as reflected on the Certificate of Service of each establishes his claim for abuse of process See Edwards Answers to Interrogatories filed June Accordingly as explicitly stated in Edwardss own pleadings and discovery responses the events giving rise to Edwardss purported claims against Epstein occurred solely in the conduct of and related to the litigation just as occurred in the Wolfe case mandating Summary Judgment Wolfe Foreman FLA WEEKLY July American Nat Title Escrow of Florida Inc Guarantee Title Trust Co So 2d Fla 4th DCA see also Montejo Martin Memorial Medical Center Inc So 2d Fla 4th DCA Epstein Rothstein et al Furthermore the sole basis for Edwardss cause of action for malicious prosecution is Epsteins filing of a civil complaint against Edwards See Edwards Fourth Amended Counterclaim Irrefutably and as stated by the Wolfe court in its analysis of the malicious prosecution claim it is difficult to imagine any act that would fit more firmly within the parameters of Levin and Echevarria than the actual filing of a complaint Wolfe Foreman FLA WEEKLY July Moreover while Edwards attempts to distinguish the Wolfe case and all of the Florida Supreme Court cases cited therein by stating that all of those cases were against law firms not individuals such distinction is without merit as attorneys are held to a higher standard than a lay person regarding filing suit as counsel is bound by the Rules Regulating the Florida Bar It was Edwards who chose for whatever reason not to include as defendants the firm that filed the suits against Edwards on Epsteins behalf Indisputably the Wolfe holding protects both the firm that filed suit and the individual plaintiff as it unequivocally states that the Florida Supreme Court has clearly and unambiguously stated not once but twice that the litigation privilege applies to all causes of actions and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct Wolfe Foreman Fla Weekly July emphasis added See also Levin So 2d at The immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties but to judges witnesses and counsel as well Accordingly based on the undeniable holdings in Wolfe and the cases cited therein Epsteins actions were absolutely protected by the litigation privilege and Summary Judgment is required as a matter of law In addition Edwards is equally unable as a matter of law to establish the requisites for either an abuse of process or a malicious prosecution cause of action It is axiomatic that under Florida law the mere filing of a complaint and having process served is not enough to show abuse of process The plaintiff must prove improper use of process after it issues I Invs So 3d at quoting Della Epstein Rothstein et al Donna Nova Univ Inc So 2d Fla 4th DCA Marty Gresh So 2d Fla 1st DCA Abuse of process requires an act constituting the misuse of process after it issues The maliciousness or lack of foundation of the asserted cause of action itself is actually irrelevant to the tort of abuse of process Wolfe Foreman Fla Weekly July Even the filing of a lawsuit with the ulterior motive of harassment does not constitute abuse of process Della Donna So 2d at It is incontestable that Edwardss own pleadings and discovery responses establish that Edwardss cause of action for abuse of process is based on nothing more than general references to Epsteins pleadings and discovery in the underlying action See Edwards Fourth Amended Counterclaim paragraph and Edwards Answers to Interrogatories filed June Florida law has repeatedly held that there is no abuse of process when the process is used to accomplish the result for which it was created regardless of an incidental or concurrent motive of spite or ulterior purpose I Investments Payless Flea Market Inc So 3d Fla 4th DCA quoting Rothmann Harrington So 2d Fla 3d DCA Although Edwards attributes concurrent motives to Epsteins pleadings and discovery every such pleading and discovery item of Epstein cited by Edwards on its face was intrinsically related to Epsteins case and used for the purpose of prosecuting it Accordingly Edwards has not satisfied his burden and summary judgment on Edwardss count for abuse of process is mandated as a matter of law Levin Middlebrooks Moves Mitchell P.A US Fire Ins Co So 2d Fla McMurray U-Haul Co So 2d Fla 4th DCA Della-Donna Nova University Inc So.2d Fla 4th DCA Wolfe Foreman Fla Weekly July Additionally actions for malicious prosecution are not generally favored Central Florida Machinery Co Inc Williams So 2d Fla 2d DCA A plaintiff cannot prevail unless each and every element of the claim is met See Doss Bank of America NA So 2d Fla 5th DCA Kalt Dollar Rent-A-Car So 2d Fla 3d DCA holding that the absence of any one of these elements will defeat a malicious prosecution Epstein Rothstein et al action emphasis added Alamo Rent-A-Car Inc Mancusi So 2d Fla Durkin Davis So 2d Fla 2d DCA Moreover if a multi-count complaint contains one count that has not been filed maliciously then a malicious prosecution action cannot lie against that complaint May Fundament So 2d Fla 4th DCA emphasis added Accordingly while not addressed by Edwards in his Opposition Motion an indispensable element in the tort of malicious prosecution is the absence of probable cause Thompson McKinnon Securities Inc Light So 2d Fla 3d DCA Probable cause only becomes a question for the jury when material facts are disputed City of Pensacola Owens So 2d The threshold for establishing probable cause in a civil action is whether the defendant reasonably could have believed that the person in the previous action was guilty of the claims previously alleged at the time of asserting the claim Gill Kostroff Supp 2d M.D Fla applying Florida law citing State Cote So 2d Fla 4th DCA That threshold is extremely low and easily satisfied Gill F.Supp 2d at Wright Yurko So.2d Fla 5th DCA A determination of whether probable cause exists is based on the facts known by the defendant in the malicious prosecution action at the time the underlying action was initiated not some later point in time Gill F.Supp 2d at citing United States lrurzun F.2d 5th Here the allegations in Epsteins lawsuit against Edwards coupled with the irrefutable facts surrounding the underlying Epstein Cases including the actions occurring at RRA during the time in question as delineated in Epsteins undisputed facts undeniably satisfy as a matter of law the extremely low threshold required for probable cause to file a civil suit against Rothstein and Edwards warranting Summary Judgment in Epsteins favor Finally while Edwards attempts to rely upon his purported statement of undisputed facts to support his Opposition to Epsteins Motion for Summary Judgment those facts which are replete with salacious hyperbole and projected solely to muddy the waters are completely irrelevant to the issues of Epstein Rothstein et al law presented by Epstein in his Motion for Summary Judgment Edwardss statement of undisputed facts has no bearing whatsoever on the applicability of the litigation privilege to Epsteins filing of the underlying lawsuit against Edwards Likewise these facts do not create any dispute as to whether facts existed at the time Epstein filed suit to meet the extremely low and easily satisfied threshold for probable cause Moreover it is undeniable that this Court has already rejected Edwardss statement of undisputed facts as a basis upon which to establish the requisite malice extortion or fraud for a malicious prosecution claim See Edwards Motion to Overrule Objections to Interrogatories dated October and this Courts Order dated December denying same CONCLUSION There is no evidence that could justify Edwardss causes of action against Epstein which as unequivocally confirmed by the recent Wolfe case are completely barred by the absolute immunity afforded Epstein by the litigation privilege and are precluded as a matter of law by the undisputed facts in this case Summary Judgment must be granted for Epstein because there is no material issue of fact to resolve and Epstein is therefore entitled to judgment as a matter of law WE HEREBY CERTIFY that a true and correct copy of the foregoing was served via electronic service to all parties on the service list below on this January Tonja Haddad Coleman Tonja Haddad Coleman Esq Florida Bar No Tonja Haddad PA SE ih Street Suite Fort Lauderdale Florida facsimile Tonja TonjaHaddad.com SERVICE LIST CASE NO Jack Scarola Esq jsx searcylaw.com mep searcylaw.com Searcy Denney Scarola et al Palm Beach Lakes Blvd West Palm Beach FL Jack Goldberger Esq jgoldberger agwpa.com smahoney agwpa.com Atterbury Goldberger Weiss PA Australian Ave South Suite West Palm Beach FL Marc Nurik Esq East Broward Blvd Suite Fort Lauderdale FL Bradley Edwards Esq brad pathtojustice.com Farmer Jaffe Weissing Edwards Fistos Lehrman Andrews A venue Suite Fort Lauderdale Florida Fred Haddad Esq Dee FredHaddadLaw.com Financial Plaza Suite Fort Lauderdale FL Tonja Haddad Coleman Esquire Tonj a tonjahaddad.com efiling tonjahaddad.com Law Offices of Tonja Haddad P.A SE 7th Street Suite Fort Lauderdale FL Attorneys for Jeffrey Epstein Epstein Rothstein et al
