EFTA00175521.pdf

CM/ECF - Live natabase - flsd Page 1 of 6 CLOSED, L1RJ U.S. District Court Southern District of Florida (West Palm Beach) CIVIL DOCKET FOR CASE #: 9:08-cv-80804-KAM Doe v. Epstein et al Date Filed: 07/18/2008 • Assigned to: Judge Kenneth A. Marra Date Terminated: 10/03/2008 Referred to: Magistrate Judge Linnea R. Johnson ' Jury Demand: Plaintiff Case in other court: 15th Judicial Circuit, 50 2008 CA Nature of Suit: 890 Other Statutory 006596 Actions Cause: 28:1331 Federal Question Jurisdiction: Federal Question Plaintiff Jane Doe represented by Spencer Todd Kuvin Ricci Leopold 2925 PGA Boulevard Suite 200 Palm Beach Gardens , FL 33410 Fax: 515-2610 Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Theodore Jon Leopold Leopold—Kuvin, P.A. 2925 PGA Boulevard Suite 200 Palm Beach Gardens , FL 33410 Fax: Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Jeffrey Epstein represented by Guy Alan Lewis Lewis Tein 3059 Grand Avenue Suite 340 Coconut Grove , FL 33133 Fax: 442-6744 https://ccf.flscLuscourts.gov/egi-bin/DktItpt.pl?688131043345764-1.,_801 0-1 10/8/2008 EFTA00175521 CM/ECF - Live Pntabase - flsd Page 2 of 6 Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Jack Alan Goldberger Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach , FL 33401-5012 Fax: 835-8691 Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael James Pike Burman Critton Luttier & Coleman 515 N Flagler Drive Suite 400 West Palm Beach , FL 33401-2918 Fax: 515- 14 Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Ross Tein Lewis Tein 3059 Grand Avenue Suite 340 Cocos Grove , FL 33133 Fax: 442- 4 Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Robert Deweese Critton , Jr. Burman Critton Luttier & Coleman 515 N Flagler Drive Suite 400 West Palm Beach , FL 33401-2918 Fax: Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant represented by Douglas Malcolm McIntosh https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?688131043345764-L801_0-1 10/8/2008 EFTA00175522 CM/ECF - Live InIabase - flsd Page 3 of 6 McIntosh Sawran Peltz Cartaya & Petruccelli 1776 E Sunrise Boulevard PO Box 7990 Fort Lauderdale , FL 33338-7990 Fax: 765-1005 Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Guy Alan Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Jason A. McGrath McIntosh Sawran Peltz & Cartaya 1601 Forum Place Suite 1110 West Palm Beach , FL 33401 Fax: Email: LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Ross Tein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant represented by Guy Alan Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Ross Tein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Date Filed # that Docket Text 07/18/2008 1 r NOTICE OF REMOVAL Filing&135S.00 Receipt#: 724495, filed by 9.4 Jeffrey Epstein, = . (Attachments: # 1 exhibits, MB # 2 cxhibits)(jgn) (Entered: 07/21/2008) https://ecfflsd.uscourts.gov/cgi-bin/DktRpt.p117688131043345764-L_801_0-1 10/8/2008 EFTA00175523 CM/ECF - Live nittabase - flsd Page 4 of 6 07/25/2008 2 r MOTION for Hearing Defendants Je e E stein and I9,6 Requestfor Oral Argument by Jeffrey Epstein. (Tein, KB Michael) (Entered: 07/25/2008) 07/25/2008 3 MOTION for Extension of Time to File Answer Defendants Jeffrey r Epstein and Motionfor f Time to Answer 71.1 KB or Otherwise Respon to Complaint by Jeffrey Epstein. (Tein, Michael) (Entered: 07/25/2008) 07/25/2008 4 Sealed Document. (igo) UNSEALED see DE U Modified on 9/3/2008 (ral). (Entered: 07/25/2008) 07/25/2008 5 Sealed Document. (igo) UNSEALED see DE 11£ Modified on 9/3/2008 (ral). (Entered: 07/25/2008) 07/25/2008 17 r UNSEALED MOTION to File Under Seal by Jeffrey 120.4 KB Epstein. (ral) (Entered: 09/03/2008) 07/25/2008 18 r UNSEALED MOTION to Stay by , Jeffrey Epstein. (ral) 17 MB (Entered: 09/03/2008) 08/06/2008 6 ORDER DENYING MOTION TO SEAL. The Clerk shall unseal DE 4 r Sealed Document, 5 Sealed Document and make them available for KB public inspection through CM/ECF. Signed by Judge Kenneth A. Marra on 8/5/08. (ir) (Entered: 08/06/2008) 08/06/2008 7 r ORDER DENYING MOTION TO STAY and denying as moot 2 Motion 77.3 for Hearing. Signed by Judge Kenneth A. Marra on 8/5/08. (ir) (Entered: KB 08/06/2008) 08/08/20(8 a r MOTION Defendant Jeffiwy Epstein's Opposed Motion to Align ns Response Date by Jeffrey Epstein. (Attachments: # 1 Text of Proposed KB OrderXTein, Michael) (Entered: 08/08/2008) 08/13/2008 9 r Unopposed MOTION for Extension of Time to File CIVIL RICO CASE 274 KB STATEMENT by Jane Doe. (Kuvin, Spencer) (Entered: 08/13/2008) 08/14/2008 I0 ENDORSED ORDER granting 9 Motion for Extension of Time to File Civil Rico Case Statement. Signed by Judge Kenneth A. Marra on 8/14/08. (ir) (Entered: 08/14/2008) 08/18/2008 II r MOTION to Remand by Jane Doe. (Attachments: II 1 Exhibit Defendant 1.9 MB Epstein Sentence)(Kuvin, Spencer) (Entered: 08/18/2008) 08/21/2008 12 F Plaintiffs MOTION to Preserve Evidence by Jane Doe. (Attachments: II 0,9 I Exhibit 1)(Kuvin, Spencer) (Entered: 08/21/2008) MB 08 21 -'008 13 ORDER requiring response to 12 Plaintiffs MOTION to Preserve r Evidence and Expedite Discovery. Response due by 5:00 p.m. 8/26/08. KB Signed by Judge Kenneth A. Marra on 8/21/08. (ir) (Entered: 08/21/2008) 08/21/2008 Reset Deadlines as to 12 Plaintiffs MOTION to Preserve Evidence. https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.p17688131043345764-L_801_0-1 10/8/2008 EFTA00175524 CM/ECF - Livc "itabase - flsd Page 5 of 6 Responses due by 8/26/2008 (ir) (Entered: 08/21/2008) 08/22/2008 14 RESPONSE to Motion re 12 Plaintiffs MOTION to Preserve Evidence F Epstein's Response to Motion to Preserve Evidence [DE 121 filed by 14'6 KB Jeffrey Epstein. Replies due by 9/2/2008. (Tein, Michael) (Entered: 08/22/2008) 08/29/2008 15 r ORDER granting a Motion Align Response Date. Response due 9/4/08. 54.0 Signed by Judge Kenneth A. Marra on 8/28/08. (ir) (Entered: KB 08/29/2008) 08/29/2008 Reset Answer Due Deadline: Jeffrey Epstein response due 9/4/2008. (ir) (Entered: 08/29/2008) 08/29/2008 NOTICE by Notice ofLack ofCompliance with Local Rule 7.1.8.3 andNotice ofIncorrect Assertion ofCertificate of Compliance with Local Rule 7.1.8.3, Inaccurate Characterization of Plaintiffs Motionfor Enlargement of Time to File Civil Rico Case r Statement Pursuant to Local Rule 12.1 as Unopposed, andImproper KB Submission ofProposed Order Regarding Plaintiff's UnopposedMotion II: for Enlargement to File Civil Rico Case Statement Pursuant to Local Rule 12.1 (Attachments: # 1 Exhibit Unopposed Motion for Enlargement of Time to File Civil Rico Case Statement Pursuant to Local Rule 12.1, and Proposed Order)(Mclntosh, Douglas) (Entered: 08/29/2008) 09/04/2008 12 r Defendant's MOTION to Dismiss 1 Notice of Removal Amended 46$.2 Complaint by Jeffrey Epstein. Responses due by 9/22/2008 (Tein, KB Michael) (Entered: 09/04/2008) 09/05/2008 20 r ORDER granting 12 Motion to'Preserve Evidence. Signed by Judge ss.2 Kenneth A. Marra on 9/4/08. (ir) (Entered: 09/05/2008) KB 09/05/2008 21 r RESPONSE in Opposition re 11 MOTION to Remand filed by 0.7 MB Jeffrey Epstein. (Tein, Michael) (Entered: 09/05/2008) 09/15/2008 22 r REPLY to Response to Motion re 11 MOTION to Remand filed by Jane 3" KB Doe. (Kuvin, Spencer) (Entered: 09/15/2008) 09/16/2008 21 r NOTICE of Substitution of Counsel by Theodore Jon Leopold on behalf 893 KB ofJane Doe (Leopold, Theodore) (Entered: 09/16/2008) 09/18/2008 24 Unopposed MOTION for Extension of Time to File Response as to 19 r Defendant's MOTION to Dismiss 1 Notice of Removal Amended 3itil, Complaint by Jane Doe. (Attachments: # 1 Text of Proposed Order) (Kuvin, Spencer) (Entered: 09/18/2008) 09/19/2008 25 ENDORSED ORDER granting 24 Motion for Extension of Time to Respond to Motion to Dismiss. Plaintiffs response due 15 days after Court rules on Motion to Remand. Signed by Judge Kenneth A. Marra on 9/19/08. (ir) (Entered: 09/19/2008) 10/03/2008 nr, OPINION AND ORDER granting11 Motion to Remand. All pending r https://ectflsd.uscourts.gov/egi-bin/DktRpt.pl?688131043345764-L_801_0-1 10/8/2008 EFTA00175525 CM/ECP - Live "itabase - flsd Page 6 of 6 ( 93.9 KB motions are denied, without prejudice, as moot. This case is CLOsI I) Signed by Judge Kenneth A. Marra on 10/3/08. (ir) Modified on 10/3/2008 (ir). (Entered: 10/03/2008) 10/06/2008 27 r Transmittal Letter Sent With certified copy of Order of Remand To: 15th 37.2 Judicial Circuit in and for Palm Beach County, Florida (bb) (Entered: KB 10/06/2008) View Selected I Total filesize of selected documents (MB): I or Maximum filesize allowed (MB): 10 Download Selected PACER Service Center Transaction Receipt 10/08/2008 17:14:40 PACER Login: du4480 Client Code: 08-cv-80804- Description: Docket Report Search Criteria: KAm Billable Pages: 4 Cost: 0.32 https://ecfflsd.uscourts.gov/cgi-bin/DktRpt.pl?688131043345764-L_801_0-1 10/8/2008 EFTA00175526 Case 9:08-cv-81,O04-KAM Document _ Entered FLSD Docket 10/03/.. J8 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA NO. 08-80804-OV-MARRA/JOHNSON JANE DOE, a/k/a JANE DOE NO. 1, Plaintiff, 1. JEFFREY EPSTEIN, , and Defendants. OPINION AND ORDER REMANDING CASE TO STATE COURT THIS CAUSE is before the Court on Plaintiff's Motion to Remand (DE 11), filed August 18, 2008. Defendants filed a response (DE 21), and Plaintiff subsequently replied (DE 22). The motion is now fully briefed and is ripe for review. The Court has carefully reviewed all of the briefs and the entire record and is otherwise advised in the premises. Background Plaintiff Jane Doe, a/k/a Jane Doe No. 1, filed a four-count complaint in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, on June 25, 2008, bringing actions for sexual assault against Defendant Jeffrey Epstein ("Epstein"), and civil conspiracy, intentional infliction of emotional distress, and civil remedy for violation of Florida Statute Section 772.103 against all three Defendants (DE 1). The facts, as alleged in the Complaint, are as follows: At all relevant times, Epstein was an adult male. (Am. Compl. ¶ 8). 1 EFTA00175527 Case 9:08-cv-&O04-KAM Document Entereo FLSD Docket 10/03/. J8 Page 2 of 8 Epstein engaged in a plan, scheme and/or enterprise in which he gained access to primarily economically disadvantaged minor girls in his home, sexually assaulted these girls or coerced or attempted to coerce them to engage in prostitution, and then gave them money. (Am. Compl. 1 9). In or about 2005, Plaintiff, then 14 years old, became a victim of this scheme. (Am. Compl. ¶ 9). Defendant ("=") and ('a') recruited girls ostensibly to give a wealthy man a massage for monetary compensation in his Palm Beach mansion. (Am. Compl. 111). Under the plan, was contacted shortly before or soon after Epstein was at his Palm Beach residence. Epstein, or someone on their behalf, directed to bring one or more underage girls to the residence. (Am. Complill 1). generally sought out economically disadvantaged underage girls from Loxahatchce and surrounding areas. (Am. Compl. ¶ 11). Upon arrival at Epstein's mansion, would introduce each victim to who gathered the girl's personal information. (Am. Compl. ¶ 12). Defendant would then bring the girl up a flight of stairs to a bedroom that contained a massage table. (Am. Compl. ¶ 12). would then leave the girl alone in the room, whereupon Epstein would enter wearing only a towel. (Am. Compl. ¶ 12). Epstein would then remove his towel, lay down naked on the massage table, and direct the girl to remove her clothes. (Am. Compl. ¶ 12). Epstein would then perform one or more lewd, lascivious and sexual acts, (Am. Compl. ¶ 12). Consistent with the foregoing plan, recruited Plaintiff to give Epstein a massage for monetary compensation. (Am. Compl. ¶ 13). brought Plaintiff to Epstein's mansion 2 EFTA00175528 Case 9:08-ov-80004-KAM Document Entered . FLSD Docket 10/03/2„8 Page 3 of 8 in Palm Beach. (Am. Compl. ¶ 13). Plaintiff was introduced to a, who led her up the stairs to the room with the massage table. (Am. Compl. ¶ 13). 'et up the massage table, laid out the massage oils, told Plaintiff that Epstein would be in shortly, and then left the room. (Am. Compl. ¶ 13). Plaintiff was alone in the room when Epstein arrived. (Am. Compl. ¶ 13). Epstein told her to remove her clothes and left the room. (Am. Compl. 13). Epstein returned wearing only a towel. (Am. Compl. ¶ 13). Epstein removed his towel and laid down on his stomach on the massage table. (Am. Compl. ¶ 13). Epstein again told Plaintiff to remove her clothes. (Am. Compl. ¶ 13). In shock, fear and trepidation, Plaintiff complied, removing her clothes except for her panties and bra. (Am. Compl. ¶ 13). Shortly after starting to rub Epstein's back, Epstein told Plaintiff to sit on his back. (Am. Compl. ¶ 13). Plaintiff, out of fear and trepidation, complied. (Am. Compl. ¶ 13). After a period of time, Epstein got up from the table and went behind the door. (Am. Compl. ¶ 13). For several minutes Plaintiff heard loud noises and moans and believes that Epstein was (Am. Compl. ¶ 13). Thereafter, Epstein, naked, returned to the massage table and laid face up on the table. (Am. Compl. ¶ 13). Epstein then told Plaintiff to continue with the massage and told her to sit on top of him. (Am. Compl. ¶ 13). Out of fear and trepidation she complied. (Am. Compl. ¶ 13). As Plaintiff rubbed Epstein's chest, Epstein began to (Am. Compl. ¶ 13). Thereafter Epstein began to (Am. Compl. ¶ 13). At this same time, Epstein was . (Am. Compl. ¶ 13). Epstein got up from the massage table, told Plaintiff to write down her name and phone number, and then left the room.(Am. Compl. ¶ 13). Plaintiff was then able to get dressed, leave the room and go back downstairs and into the 3 EFTA00175529 Case 9:08-cv-8uo04-KAM Document ....., Entered FLSD Docket 10/03..-J8 Page 4 of 8 kitchen. (Am. Compl. 1 14). Epstein, and were waiting for Plaintiff. (Am. Compl. ¶ 14). Epstein paid Plaintiff $300. (Am. Compl. ¶ 14). Epstein paid $200 for bringing Plaintiff to him. (Am. Compl. ¶ 14). took Plaintiff home. (Am. Compl. ¶ 14). As a result of this encounter, the 14-year-old Plaintiff experienced confusion, shame, humiliation, and embarrassment, and the assault sent her life into a downward spiral. (Am. Compl, ¶ 15). Defendants filed a Notice of Removal with this Court on July 18, 2008. (DE 1). Defendants assert that this Court has jurisdiction pursuant to 28 U.S.C. § 1332: the amount in controversy exceeds $75,000; Defendant Epstein is a citizen of the U.S. Virgin Islands; and Defendant is a citizen of New York. (Notice of Removal ¶ 2.) As Plaintiff is a citizen of Florida, complete diversity exists and this Court's jurisdiction is alleged to be proper. As for Defendants claim that was fraudulently joined to defeat diversity jurisdiction. (Notice of Removal. ¶ 3). Plaintiffs have moved to remand the action, claiming that was not fraudulently joined to the action. As such, Plaintiff asserts that complete diversity does not exist, and this Court does not have jurisdiction over this case. Standard ofReview A defendant may remove any civil action brought in a state court over which a federal court would also have original jurisdiction. 28 U.S.C. § 1441(a). However, the burden of establishing federal jurisdiction under § 1441 rests with the party seeking removal. Carson'. Dunham. 121 U.S. 421, 425 (1887); Diaz, Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). The right of removal is strictly construed, as it is considered a federal infringement on a state's power to adjudicate disputes in its own courts. See Shamrock Oil & Gas Corp.,. Sheets, 313 U.S. 100, 4 EFTA00175530 Case 9:08-cv-8uo04-KAM Document Entereo FLSD Docket 10/031, . J8 Page 5 of 8 108-09 (1941). Thus, when the Court's jurisdiction over a case is doubtful, doubts arc resolved in favor of remand. See Crowe . Coleman, 113 F.3d 1536, 1539 (11th Cir. 1997). Discussion Fraudulent Joinder A defendant's statutory "right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy." Wilson'. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). Thus, courts have established the doctrine of fraudulent joinder to allow the removal of a case to federal court despite the presence of a non-diverse or forum-citizen defendant. The Eleventh Circuit has provided substantial guidance for the district courts in situations where a party removes a case from state court, alleging fraudulent joinder of the non-diverse parties: In a removal case alleging fraudulent joinder, the removing party has the burden of proving that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court. The burden of the removing party is a "heavy one." To determine whether the case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff. Crowe, 113 F.3d at 1538. In this case, Defendants do not allege that Plaintiff fraudulently pled jurisdictional facts; instead, Defendants argue that Plaintiff has no cause of action against The Amended Complaint alleges three causes of action against : civil conspiracy (Count 2); intentional infliction of emotional distress (Count 3); and civil remedy for violation of 5 EFTA00175531 Case 9:08-cv-80004-KAM Document - Entered.... FLSD Docket 10/03/i _ A Page 6 of 8 Florida Statute Section 772.103 (Count 4). The Court, in considering the remand motion, must not weigh the merits of a Plaintiffs claim beyond determining whether any of the alleged causes of action is an arguable one under state law. See Crowe. 113 F.3d at 1538. "If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." Id. quoting Coker,. Amoco Oil Co., 709 F.2d 1433, 144041 (11th Cir.1983). The Florida Fifth District Court of Appeals set forth the elements of a civil conspiracy as follows: "The elements of a civil conspiracy are: (a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts performed pursuant to the conspiracy." Walters'. Blankenship, 931 So.2d 137, 140 (Fla. SDCA 2006), citing Florida Fern Growers Ass'n, Inc.'. Concerned Citizens of Putnam County, 616 So.2d 562 (Fla. 5th DCA 1993). Here, Plaintiff has alleged each of the required elements in her Amended Complaint as follows: (a) a conspiracy between the three Defendants, including (Am. Compl. ¶ 21); (b) to do an unlawful act, that is, to commit the tort of sexual assault of a minor (Am. Compl. ¶ 21); (c) committed an overt act in pursuance of the conspiracy, that is, used false pretenses to lure Plaintiff to Epstein's home so that Epstein could sexually assault Plaintiff (Am. Compl. 1 22).; and (d) severe and permanent traumatic injuries, including mental, psychological and emotional damages (Am. Compl. ¶ 23). "Additionally, an actionable conspiracy requires an actionable underlying tort or wrong." Raimi I. Furlong, 702 So.2d 1273, 1284 (3d DCA 1997); see, e.g., Walters 931 So.2d at 141. 6 EFTA00175532 Case 9:08-cv-8Uo04-KAM Document Entered FLSD Docket 10/03/,_J8 Page 7 of 8 The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff .... (citations omitted) Thus, a cause of action for civil conspiracy exists ... only if "the basis for the conspiracy is an independent wrong or tort which would constitute a cause of action if the wrong were done by one person." Rivers'. Dillards Dept. Store, Inc., 698 So.2d 1328 (Fla. I DCA 1997), quoting Blatt . Green Rose, Kahn & Piotrkowski, 456 So.2d 949 (Fla. 3d DCA 1984). The alleged underlying wrong or tort in this case is sexual assault of a 14-year-old minor. Sexual assault is considered tortious conduct under Florida law. Malicki Doe 814 So.2d 347, 358 (Fla. 2002); see also Doe'. Celebrity Cruises, Inc., 394 F.3d 891, 917 (11th Cir. 2004) ("Florida law equates sexual battery with an intentional tort."). At the very least, Plaintiff's Complaint states a cause of action for the underlying tort of battery, as a 14-year-old child cannot consent to the alleged vaginal penetration by Epstein. Fla. Stat. § 800.04. Based on the foregoing, the Court cannot say with certainty that "no possibility" exists that Plaintiff can establish a cause of action against the resident in state court. See Crowe, 113 F.3d at 1538. As such, the Court concludes that Defendants have not met their "heavy" burden of demonstrating that joinder of the claims against was fraudulent, justifying denial of the motion to remand. a Conclusion Accordingly, it is hereby ORDERED AND ADJUDGED as follows: 1. Plaintiff's Motion to Remand [DE 11] is GRANTED. 2. This case shall be REMANDED to the Circuit Court for the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, case No. 50 2008 CA 006596, for lack of subject matter 7 EFTA00175533 Case 9:08-cv-81,,m14-KAM Document Entered , . FLSD Docket 10/03P,.. -8 Page 8 of 8 jurisdiction; 3. The Clerk of this Court is hereby directed to forward a certified copy of this Order to the Clerk of the Circuit Court for the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, case No. 50 2008 CA 006596; 4. All pending motions are hereby DENIED, without prejudice, as moot; and 5. This case is closed. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 3' day of October, 2008. KENNETH A. MARRA United States District Judge Copies furnished to: All counsel of record 8 EFTA00175534 Case 9:08-cv-8Uo04-KAM Document ....... Entered FLSD Docket 09/15/,.„J8 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80804-CIV-MARRAMOHNSON JANE DOE, a/k/a, JANE DOE NO. 1, Plaintiff, vs. IF'.F .EY EPSTEIN , and Defendants. PLAINTIFF'S REPLY TO OPPOSITION TO REMAND Plaintiff Jane Doe, a Florida citizen, properly sued also a Florida citizen, in this action. Contrary to Defendants' contention, Defendant was not fraudulently joined because, when viewing the factual allegations in the light most favorable to Plaintiff and resolving issues of Florida substantive law in favor of Plaintiff, it is clear that Plaintiff has cognizable causes of action against Defendant for civil conspiracy, intentional infliction of emotional distress, and civil RICO. Accordingly, the Court should remand this action to Florida state court. A. Plaintiff is a Florida citizen Plaintiff alleged in her complaint and testified in deposition that she is a Florida resident. (Amended Complaint I I, DE I, pp. 301; Deposition of Jane Doe, DE I, pp. 31-32, 5:14-18, 6:6-10). In their notice of removal, Defendants cite a newspaper article (from the same newspaper that Defendants chide Plaintiff for citing with regard to Defendant describing herself as the Hollywood madam Heidi Fleiss) in which it EFTA00175535 Case 9:08-cv-8ua04-KAM Document -4 Entered FLSD Docket 09/15h.,,J8 Page 2 of 8 is reported that Plaintiff had moved to another state in order to intimate that Plaintiff made fraudulent allegations regarding her residency. (DE I, p. 7 n.6). Defendants then chide Plaintiff in their opposition to her motion for remand for not taking the bait and responding to this baseless allegation. (DE 21, p. I). The only evidence in this case, as well as Plaintiff's allegations, demonstrate that Plaintiff is a Florida citizen. As Defendants have failed to present sufficient evidence to demonstrate otherwise, there is no need for Plaintiff to present additional evidence establishing her status as a Florida citizen. B. Plaintiff has alleged cognizable causes of action against Defendant The allegations in Plaintiff's complaint demonstrate that Plaintiff was the victim in a despicable scheme orchestrated by Defendant Epstein to find and obtain underage girls, lure them to his home, and subject them to sexual abuse or otherwise induce them to engage in lewd behavior. As much as Defendants attempt to downplay the role of Defendant by describing her as nothing but a college student with no assets, Plaintiff's complaint demonstrates that was a key player in Epstein's scheme. Defendant was the person that actually trolled for underage girls and induced them with promises of money in exchange for massages in order to deliver the girls to Epstein's home and get them into his bedroom. (Amended Complaint ¶¶ 11-15, DE 1, pp. 302-04). Without Defendant role in this scheme, the underage girls, including Plaintiff, would not have been subjected to Defendant Epstein's depravity and abuse. 2 EFTA00175536 Case 9:08-cv-80O04-KAM Document _ Entered , . FLSD Docket 09/15/2. ..8 Page 3 of 8 1. Civil Conspiracy Defendants repeatedly assert that Plaintiff cannot have a cause of action for civil conspiracy grounded on the tort of sexual assault because Chapter 800 of the Florida Statutes does not create a private cause of action. As authority for this legal proposition, Defendants cite Florida case law that states "not every statutory violation carries a civil remedy." (DE 21, p. 6) (citing Am. Home Assurance Co.'. Plaza Materials Corp., 908 So. 2d 360, 374 (Fla. 2005)). Defendants do not cite case law that states, however, that Chapter 800 of the Florida Statutes does not create a private cause of action, nor can they because this appears to be a matter of first impression in Florida. In order to determine whcthcr a private cause of action may be based upon a statutory breach, Florida courts look to the intent of the legislature. Baumsteinl. Sunrise Community, Inc., 738 So. 2d 420, 421 (Fla. 3d DCA 1999). Because Florida courts have not examined whether the legislature intended for violations of Chapter 800 to provide for private causes of action, the Court should view this uncertainty regarding Florida state law in favor of Plaintiff. See Crowe'. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1989) (citation omitted). Furthermore, the failure of a statute to provide a private cause of action does not "preclude the right to bring a common law . . . claim based upon the same allegations." Villazon I. Prudential health Care Plan, Inc., 843 So. 2d 842, 852 (Fla. 2003). In her action for sexual assault, Plaintiff alleges that Defendant Epstein tortiously assaulted her sexually. (DE I, p. 104). Under Florida law, sexual assault is an intentional tort. See Doe" Celebrity Cruises, Inc., 394 F.3d 891, 917 (11th Cir. 2004) ("Florida law equates sexual battery with an intentional tort."). Thus, even if Plaintiffs civil conspiracy claim 3 EFTA00175537 Case 9:08-cv-8uO04-KAM Document _ Entereo FLSD Docket 09/15/.. J8 Page 4 of 8 cannot properly be grounded upon a violation of Chapter 800, it is properly grounded upon common law tortious assault. Plaintiff's cause of action for civil conspiracy is, therefore, cognizable against Defendant under Florida law. 2. Intentional Infliction of Emotional Distress Defendants next assert that Plaintiff has failed to assert a cognizable cause of action for intentional infliction of emotional distress against Defendant because her allegations arc not so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency. (DE 21, p. 7). They attempt to characterize Plaintiff as the wrongdoer because she agreed to give a massage in exchange for monetary compensation when she was "unlicensed, untrained, and unqualified to perform this professional service." (DE 21, p. 8). Defendants seem to forget that Plaintiff was just a I4-year old girl when she was approached by Defendant and induced to agree to provide a massage to a wealthy man in exchange for money. What Plaintiff certainly did not agree to do was to be subjected to Defendant Epstein's perverse scheme to satisfy his depraved sexual desires. When read fairly, Plaintiff's complaint tells the tale of a girl, barely a teenager, who was lied to and manipulated by the college-aged Defendant who, for compensation, tempted Plaintiff with the promise of money in exchange for easy and harmless work and then knowingly delivered Plaintiff into the depraved hands of Defendant Epstein. Defendant Epstein then subjected this young girl to the despicable lewd and lascivious acts detailed in Plaintiff's complaint. It is hard to imagine any conduct that is more "outrageous in character and so extreme in degree as to go beyond all possible bounds of 4 EFTA00175538 Case 9:08-cv-80004-KAM Document _ Entered L . FLSD Docket 09/15/L Page 5 of 8 decency." Plaintiff's cause of action for intentional infliction of emotional distress must, therefore, be recognized as cognizable under Florida law. 3. Civil RICO Finally, Defendants argue that Plaintiff has failed to assert a cognizable cause of action for civil RICO against Defendant because Plaintiff was injured only by the sexual assault, which is not a predicate act under Florida's RICO statute. In her complaint, Plaintiff alleges that Defendants engaged in a pattern of criminal activity in which Defendant found and delivered underage girls to Defendant Epstein in order for Epstein to "solicit, induce, coerce, entice, compel or force such girls to engage in acts of prostitution and/or lewdness." (Amended Complaint ¶ 32, DE 1, p. 307). She also alleges that she was a victim of Defendants' scheme because she was one of the underage girls found and delivered to Defendant Epstein by Defendant and that she endured Epstein's actions as he tried to get her to engage in, and forced upon her, acts of prostitution and lewdness. (Amended Complaint ¶ 33, DE 1, pp. 307-308). It is for harm suffered as a result of these predicate acts that Plaintiff seeks damages for in Count IV of her complaint. Cf. Palmas Y Bambu, E.I. Dupont De Nemours & Co., Inc., 881 So. 2d 565, 570 (Fla. 3d DCA 2004) (holding plaintiff has standing to sue for civil RICO when her injuries flow directly from commission of the predicate acts, which means "when the alleged predicate act is mail or wire fraud, the plaintiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme"). Because Plaintiff was a target of Defendants' scheme and was harmed by their actions in carrying out the scheme, Plaintiff has a cognizable cause of action for civil RICO against Defendant 5 EFTA00175539 Case 9:08-cv-8uo04-KAM Document _ _ Entereo FLSD Docket 09/15/....J8 Page 6 of 8 C. Conclusion Plaintiff, a Florida citizen, has alleged cognizable causes of action against Defendant also a Florida citizen, for civil conspiracy, intentional infliction of emotional distress, and civil RICO. When viewing Plaintiff's factual allegations in the light most favorable to her and resolving issues of Florida substantive law in her favor, it is clear that Plaintiff has not fraudulently joined Defendant in this action. Accordingly, the Court should remand this action to Florida state court for lack ofjurisdiction. Certificate of Services I hereby certify that on September 15, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who arc not authorized to receive electronically Notices of Electronic Filing. sl Spencer T. Kuvin Spencer T. Kuvin (Florida Bar Number 089737) Attorney E-Mail Address: RICCI—LEOPOLD, P.A. 2925 PGA Blvd. Suite 200 Palm Beach Gardens, FL 33410 Telephone: Facsimile: Counsel for Plaintiff Jane Doe 6 EFTA00175540 Case 9:08-cv-8uo04-KAM Document Entered ..i FLSD Docket 09115L . J8 Page 7 of 8 SERVICE LIST Doe Epstein, et. al. CASE NO: 08-80804-Civ-MARIUUJOHNSON United States District Court, Southern District of Florida Robert Critton, Esq. Burman, Critton, Luttier & Coleman, LLP