📄 Extracted Text (16,863 words)
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN AND
FOR PALM BEACH COUNTY, FLORIDA
Case No. 50 2009CA040800XXXXMB AG
JEFFREY EPSTEIN
Plaintiff,
v.
SCOTT ROTHSTEIN, individually,
BRADLEY J. ED DS,
individually, and IE., individually,
Defendants.
EPSTEIN'S MOTION TO POSTPONE THE JUNE 4, 2010
HEARING ON ROTHSTEIN'S MOTION TO SET ASIDE DEFAULT
Plaintiff, JEFFREY EPSTEIN ("Epstein"), moves to postpone the June 4, 2010
hearing on Defendant's, SCOTT ROTHSTEIN ("Rothstein"), Motion to Set Aside
Default, and states:
1. Epstein filed the instant action against Rothstein and others on December
9, 2009.
2. On December 31, 2009, Epstein filed a Motion for Default due to
Rothstein's failure to respond to the Complaint.
3. A default was entered by the Clerk on January 21, 2010.
4. Rothstein filed a Motion to Set Aside Default on February 17, 2010.
5. Several weeks later and on the eve of the hearing on Rothstein's Motion
to Set Aside Default, Rothstein filed an affidavit on March 8, 2010in support of his
Motion to Set Aside Default.
6. The next day, March 9, 2010, a hearing was held on Rothstein's Motion to
EFTA01112644
Set Aside Default and the Court deferred ruling so the parties could conduct discovery
related to the motion (3/9/10 Order attached as Exhibit A).
7. On April 5, 2010, counsel for Epstein wrote to counsel for Rothstein to
coordinate Rothstein's deposition and indicated that since Rothstein is in jail, the
location of his deposition would likely have to be moved. ask 4/5/10 Letter attached as
Exhibit B. Counsel for Rothstein never responded to said letter.
8. On April 15, 2010, Epstein filed a Motion to Strike Affidavit of Scott
Rothstein because he was unable to depose Rothstein.
9. On April 22, 2010, the Court denied Epstein's Motion to Strike Affidavit of
Scott Rothstein and granted an additional thirty (30) days to depose Rothstein (4/22/10
Order attached as Exhibit C).
10. However, Rothstein's own counsel has had considerable difficulty locating
and communicating with his client. In an April 22, 2010 article in the South Florida
Business Journal (attached as Exhibit D), it was reported that Rothstein's counsel,
Mark Nurik, Esq., was unaware of his client's location for substantial periods of time and
has only had limited contact with Rothstein. Mr. Nurik was quoted as follows:
a. "(Rothstein) is presently in protective housing outside of this district....
Undersigned counsel's contacts with his client must be arranged and
approved in advance through the government, which creates delay."
b. "There have been numerous occasions in the past few months when
undersigned counsel has been unaware of his client's location and has
been repeatedly out of contact with his client for substantial periods
of time, including one period for over two weeks."
c. "Given these limitations in the past five weeks, counsel has only been
able to meet with his client on two occasions. Currently, there is no
ability to e-mail (Rothstein), and phone contact is very limited. Even the
sending and receipt of legal mail takes longer than the norm."
2
EFTA01112645
See Exhibit C (emphasis added).
11. Interestingly, counsel for Rothstein had no problem obtaining Rothstein's
notarized signature on his affidavit.
12. Due to the additional time given to depose Rothstein, the hearing on
Rothstein's Motion to Set Aside Default was rescheduled to June 4, 2010.
13. However, Epstein has been unable to locate, let alone depose, Rothstein
and therefore requests the Court postpone the June 4, 2010 hearing on the Motion to
Set Aside Default.
14. Epstein's counsel has made the numerous efforts to locate and depose
Rothstein, to no avail:
a. Telephone conference with Lisa Kaye, Case Management
Coordinator/Legal Liaison at the Federal Detention Center in Miami — was
advised they do not have custody of Rothstein, have no Information on his
whereabouts and could not assist in coordinating his deposition;
b. Telephone conference with U.S. Marshal's office — was advised they are
not responsible for coordinating depositions and would not give provide
any information regarding Rothstein.
c. Telephone conference Bureau of Prisons Inmate Locator in Washington
D.C. — was advised they have no record of Scott Rothstein;
d. Telephone conference with Port St. Lucie Jail — was advised they had
custody of Rothstein for brief period, but had no Information on his
whereabouts;
e. Two voicemails for Bureau of Prisons — never returned a call;
f. Two letters and two voicemails for United States Attorney Paul Schwartz —
never returned a call or responded to letters; and
g. Voicemail for United States Attorney Jeff Kaplan — never returned call.
15. In addition, news articles have suggested that Rothstein is entering the
federal witness protection program due to his involvement In assisting the government
3
EFTA01112646
arrest reputed Gambino mob figure Robert Settinerl:
h. tut [Rothstein) may end up spending less time behind bars; the feds plan
to put him In prison under the witness protection program for helping sting
Settinerl in the FBI undercover operation.' See 3/19/10 Miami Herald
Article attached as Exhibit E.
I. "Sources tell CBS4 News that because of his cooperation in this case
[against Settineri), Rothstein will be entering the federal witness protection
program — meaning he will serve his prison time for the Ponzi scheme
under a different name and in a prison outside of Florida. See 3/15/10
CBS4 Article attached as Exhibit F.
16. Given the above-described difficulties in locating and deposing Rothstein,
Epstein requests the Court postpone the June 4, 2010 hearing on Rothstein's Motion to
Set Aside Default and provide an additional thirty (30) days to take Rothstein's
deposition.
WHEREFORE, Defendant, JEFFREY EPSTEIN, requests the Court postpone
the June 4, 2010 hearing on Rothstein's Motion to Set Aside Default and provide an
additional thirty (30) days to depose Rothstein and grant any additional relief the Court
deems just and proper.
Certificate of Service
I HEREBY CERTIFY that a true copy of the foregoing was sent by fax and U.S.
Mail to the following addressees on this 2e day of Msy, 2010:
Gary M. Farmer, Jr., Esq. Jack Alan Goldberger, Esq.
Farmer, Jaffe, Weissing, Edwards, Fistos Atterbury Goldberger & Weiss, P.A.
& Lehrman, PL 250 Australian Avenue South
425 N. Andrews Avenue, Suite 2 Suite 1400
Fort Lauderdale, FL 33301 West Palm Beach. FL 33401-5012
Fax:
— fax Co-Counsel endant Jeffrey Epstein
Attorneys for Defendant,.
Jack Scarola, Esq. Law Offices of Marc S. Nurik
Seamy Denney Scarola Barnhart & Counsel to Scott Rothstein
Shipley, P.A
4
EFTA01112647
2139 Palm Beach Lakes Blvd. One East Broward Boulevard, Suite 700
West Palm Beach, FL 33409 Fort Lauderdale FL 33301
Attorneys for Defendant Bradley Edwards
BURMAN, CRITTON, LUTTIER & COLEMAN, LLP
303 Banyan Boulevard
Suite 400
West Palm Beach, FL 33401
Fax
By: (Pi AI-
R° .ert D. Craton, Jr.
ci Florida Bar #224162
Michael J. Pike
Florida Bar #617296
(Counsel for Defendant Jeffrey Epstein)
5
EFTA01112648
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN
AND FOR PALM BEACH COUNTY,
FLORIDA
JEFFREY EPSTEIN Complex Litigation, Fla. R. Clv. Pro.1201
Plaintiff, Case No. 50 2009CA040800XXXXMB AG
v.
SCOTT ROTHSTEIN, individually,
BRADLEY J. ED/IDS,
Individually, and ., Individually,
Defendants..
ORDER ON DEFENDANT SCOTT ROTHSTEIN'S MOTION TO SET ASIDE DEFAULT
THIS CAUSE came before the,Court on Defendant Scottflothstein's Motion to
Set Aside Default, and the Court having heard argument of counsel and being fully
advised in these premises, it is hereby
ORDERED and ADJUDGED that said Defendant's Motion is hereby .grentedt
.denied— yuc e;ettiAj i IP/ c-c.4....3 Tha d-
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DONE AND ORDERED at Palm Beach County-Co rthouse, st P Im Beach,
Florida, this s — day of //hilt-- 2010
David F. Crbw
Circuit Judge
Copied furnished to:
ROBERT D. CRITTON, JR., ESQ., Burman, Crilton, Lutlier & Coleman, 303 Banyan Boulevard. Suite
400, West Palm Beach, FL 33401, MARC S. NURIK, ESQ., Law Offices of Mark S. Nurik,
One East Broward Boulevard, Suite 700, Fort Lauderdale, FL 33301, GARY M. FARMER,
JR., ESQ., Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, PL. 425 N. Andrews Avenue, Suite 2,
Fort Lauderdale, FL 33301, JACK SCAROLA, ESQ., Searcy Denney Scarola Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Blvd., West Palm Beach, FL 33409, and JACK ALAN GOLDBERGER, ESQ.,
Atterbury Goldberger & Weiss, PA., 250 Australian Avenue South, Suite 1400, West Palm Beach, FL
33401-5012
EFTA01112649
BURMAN, CRITTON
YE LUTHER &COLEMAN,LIP
YOUR TRUSTED ADVOCATES
A LIMITED LIABILITY PARTNERSHIP
J. MICHAEL BARMAN. PAP
GREGORY W. COLEMAN. PA =MT=
Matta D. CRITTON. JR.. PA. • CADWELL
BERNARD A. taunters BOBBIE M. MCKENNA
MARK T. Linn. PA AsHut STOKEN•BARING
MICHAEL J. Pin
April 5, 2010 /Arty STOKES
DAVID A YAREMA PAMUCAIS
RITA H. SuossyK
IIIPSIDA &onomaim CIVIL TRW LOVER Of COUNSEL
7ADMITTIO TO PMCTIVI IN aCOADAAND COTORMO EDWARD M. RICCI
07 COUNSEL
Sent by Fax. E•Mall and US. Mali
Mark Nurik, Esq.
Rothstein, Rosenfedlt, Adler, P.A.
401 E. Las Olas Blvd., Suite 1650
Ft. Lauderdale, FL 33301
Re: Epstein v. Rothstein. et al,
Case No. 50 2009CA040800XXXXMB AG
Dear Mr. Nurlk:
As you are aware, we have set your client's Motion to Set Aside Default on a
special set for 40 minutes on April 30, 2010 at 3:30 p.m. The court indicated we both
could take discovery.
I am enclosing a Notice for the Deposition of Scott Rothstein at a court reporters
office at West Palm Beach. I have set it for April 15, 2010. I am aware that Mr.
Rothstein is in jail, and therefore probably cannot attend that deposition at that location.
Therefore, I am willing to move the location. The deposition will deal solely with issues
associated with his Motion to Set Aside the Default.
If that deposition time does not work, please let me know. If it is your intent to
file a motion for protective order regarding Mr. Rothstein, please so file.
Additionally, I would like an additional date such that I can take Mr. Rothsteln's
deposition in the case. Specifically, I would like to cover those Issues that are directed
to Mr. Edwards, I have received a Notice from Mr. Edwards' attorney which requires me
to do the necessary work and investigation such that I can make certain
recommendations to my client. I am aware that Mr. Rothstein prior to his plea, was
completely off limits to.a deposition. With his guilty plea, I would anticipate that he now
EXHIBIT
303 BANYAN BOULEVARD • SUITE 4430. WEST PALM BEACH. a 33401 • PHONE: ■
WINIMBCLCLAWCOlvt
EFTA01112650
Epstein v. Rothstein
Page 2
is available to give a deposition. Would you please contact me such that the above
discovery can be arranged.
Cordially Yours,
o D. Critton, Jr.
RDC/clz
EFTA01112651
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN
AND FOR PALM BEACH COUNTY,
FLORIDA
JEFFREY EPSTEIN Complex Litigation, Fla. R. Civ. Pro.1201
Plaintiff, Case No. 50 2009CA040800XXXXMB AG
v.
SCOTT ROTHSTEIN, Individually,
BRADLEY J. EDWARDS,
Individually, and M., Individually,
Defendants.
ORDER ON MOTION TO STRIKE AFFIDAVIT OF SCOTT ROTHSTEIN
THIS CAUSE came before the Court on Motion to Strike Affidavit of Scott
Rothstein, and the Court having heard argument of counsel and being fully advised in
these premises, It is hereby
ORDERED and ADJUDGED that said Motion is hereby
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DONE AND ORDERED at Palm Beach C Courtho est each,
Florida, this (54 of 41 , 20
David F. Crow
Circuit Judge
Copied furnished to:
ROBERT D. CRITTON, JR., ESQ., Burman, Critton, Luttier & Coleman, 303 Banyan Boulevard, Suite
400, West Palm Beach, FL 33401, MARC S. NURIK, ESQ., Law Offices of Mato S. Nurlk, One East
Broward Boulevard, Suite 700, Fort Lauderdale, FL 33301, GARY M. FARMER, JR., ESQ., Farmer, Jaffe,
Weissing, Edwards, Rstos & Lehrman, PL. 426 N. Andrews Avenue, Suite 2, Fort Lauderdale, FL 33301,
JACK SCAR0LA, ESQ., Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Blvd.,
West Palm Beach, FL 33409, and JACK ALAN GOLDBERGER, ESQ., Atterbury Goldberger & Weiss,
P.A., 260 Australian Avenue South, Suite 1400, West Palm Beach, FL 33401.50
EXHIBIT
I 0_
EFTA01112652
South Florida Business Journal: Rothstein sentencing moved to June 9 Page 1 of 1
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rida
MISJOURNAL Blog: Scott Rothstein: Picking
up the Pieces
Paul Eihrdirnann
Rothstein Sentencing Moved Reporter
To June 9
Thursday, Asti 22.2010. 11Spre EDT I Madded Masan. Ana 22, 2010. lafem
A fudge has moved Paul schemer Scott Rolinteln's sentencing back more than a month.
that Is not necessarily so unusual, but re reasons seem pretty wad.
There's a motion from Rothstein's attorney, Marc Nur*, that's unlike anything I've seen In a court case recently,
Nunk claims that ROthittla cooperation with federal authorities by acaciag evidence for alleged mans stings has
interfered with NudWs ability to communicate with him,
According to federal euthorilleS and numerous media reports, Rothstein helped set up two employees of Me Star executive
Protection & Investigation, a local security rims that had ties to the malls, and Roberto Settineri, an alleged SicElan maha
connection in South Panda. Ad three were hit with fetters! Indictments atter Rothstein needed'," asked them to launder
money and destroy evidence of Ns Pond scheme.
This comes after the nest sealed document was few In flothstelreS criminal case, which is a signal that might mean the reds
are recommending a eghter sentence because of cooperation.
KIN Hurtle aura( haletreadv admitted to creating a smokescreen of misdirection so that the public and certain alleged criminals would
think that Rothstein was flaunting federal jurisdiction before he was arrested.
here's the relevant test of flunk's request for a later sentencing date:
the defendant Is presently in protective housing outside of this Strict and treated differently than other inmates. Undersigned
counsel's contacts with his clad must Ce arranged and approved in advance though the government, witch creates delay.
`There have been numerous occasions n the past few months when understined counsel has been unaware of his client's location and Ms been
repeatedly out of contact with Ns client for substantial periods of time, Including one penal for over two weeks.
'Given these limitations, in the past five weeks, counsel haste* been able to meet with his cbent on two occasions. Currently, there is no
ably to Amall the defendant, and phrase contact is very limited. even the sending and receipt of legal mail takes longer than the norm."
Rothstein was to be sentenced May 6. De new date Is )une 9, at 9:30g.
ContoMait.IIHWittu• ratan iherat12#010$
POOS-SSABSIONO.EVitiliriKPOWSSI
Atl conleols of this Site ©American CilyButhiess Journals Inc. AU rights reserved.
http://southflorida.bizjournals.com/southflorida/blog/picking_up_the_pieces/... 5/4/2010
EFTA01112653
Scott Rothstein figure accused of making threat - 03/19/2010 - Miamtheral... Page 1 of 3
ZheRliamiHeralb
Posted on Fri, Mar. 19, 2010
4.P
Scott Rothstein figure accused of making threat
Roberto Settineri, the reputed Sicilian mafioso snagged by Ponzi schemer
Scott Rothstein in an FBI sting, had a little brush with the law in January.
As he was eating al fresco at Soprano Cafe on Lincoln Road, Settineri
opened his leather jacket to flash a handgun at a private security officer, a
police report states.
"I will put this gun in your f-----g mouth," Settineri told the security officer, the
report says. "I know where you live. I'll go to your house and kill you and your
family."
Miami Beach police eventually caught up with Settineri, who denied
threatening the guard with his firearm. The cops arrested Settineri, 41, of
Miami, on an aggravated assault charge, a third-degree felony.
But that's the least of his problems.
Last week, FBI agents arrested Italian-born Settineri, a naturalized U.S.
citizen who works as a wine wholesaler, on obstruction of justice and money
laundering charges in connection with Rothstein's $1.2 billion investment
scam. Federal authorities also accuse him of being connected to the mafia's
Colombo and Gambino crime families.
At the same time, Italian National Police officers flew to Miami and revealed
charges accusing Settineri of belonging to the Sicilian mafia and participating
in a slew of violent crimes.
Settineri was a regular on Lincoln Road, where he sold wine to resta
lining the popular pedestrian way.
JANUARY INCIDENT
Michael Catalano, Settineri's lawyer, said his client was eating with
of other men at Soprano Cafe on Jan. 8 when he had the run-in with the
http://wvvw.miamiherald.com/2010/03/19/v-print/1536775/rothstein-figure-... 5/11/2010
EFTA01112654
Scott Rothstein figure accused of making threat - 03/19/2010 - MiamiHeral... Page 2 of 3
security officer, Cesar Mainardi, who was on his patrol bike. He worked for
Security Alliance, a company contracted with the city of Miami Beach,
Catalano said Mainardi confronted Settineri over a woman they both knew.
Mainardi "weaved his way through a tight crowd and intentionally harassed
him," Catalano said. Settineri "told the security guard to leave him alone, and
he made up these allegations."
But Mainardi, in an interview with The Miami Herald, denied the fight was
over a woman.
In his police statement, Mainardi accused Settineri of threatening him for no
reason: "Apparently he did not like the way I looked at him, and I noticed his
reaction and wanted to talk to him, but he acted aggressive."
'HEATED ARGUMENT'
Mainardi told police that Settineri flashed the semi-automatic weapon, which
was in a holster on his belt. But "he never took it out," Mainardi said.
Settineri left the restaurant after the confrontation, but Miami Beach police
reached him on his cellphone.
According to the police report, Settineri admitted having a "heated argument"
with the security officer but denied "threatening him with any type of gun."
Settineri said he owned four guns, but they were all at his Brickeil Key condo
in Miami at the time of the incident. Police found no weapon on him.
State records show that Settineri has a concealed-weapons permit.
ROTHSTEIN LINK
Rothstein, who came to know Settineri through a Broward security company
he had hired for protection, allegedly talked Settineri into shredding
documents and laundering $79,000 in November from the Fort Lauderdale
lawyer's Ponzi scheme, according to an indictment unsealed last week.
Rothstein, 47, who pleaded guilty to racketeering and other charges in
January, faces up to 100 years in prison at his sentencing in May. But he may
end up spending less time behind bars; the feds plan to put him in prison
under the witness protection program for helping sting Settineri in the FBI
undercover operation.
lutp://www.miatniherald.com/2010/03/19/v-print/1536775/rothstein-figure-... 5/11/2010
EFTA01112655
Scott Rothstein figure accused of making threat - 03/19/2010 - MiamiHeral... Page 3 of 3
Italian authorities charged Settineri along with 19 other people allegedly
linked to the Sicilian mafia. The charges: extortion, drug trafficking and
attempted murder.
© 2010 Miami Herald Media Company. All Rights Reserved.
http://www.miamiherald.com
5/11/2010
EFTA01112656
I-Team: Rothstein Helps Take Down Alleged Mafia Player - cbs4.com Page 1 of 3
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I-Team: Rothstein Scams Alleged Mafia Player
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•
EXHIBIT
http://cbs4.com/iteam/Scott.Rothstein.M 5/11/2010
•
EFTA01112657
I-Team: Rothstein Helps Take Down Alleged Mafia Player - cbs4.com Page 2 of 3
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EFTA01112658
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EFTA01112659
IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA
Case No. 50 2009CA040800XXXXMB AG
JEFFREY EPSTEIN
r
F
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Plaintiff, M ° -rt
v. n. r
n n' rn
SCOTT ROTHSTEIN, individually,
BRADLEY J. ED DS, _ig
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individually, and individually, m
-na3
r-
Defendants.
EPSTEIN'S RESPONSE IN OPPOSITION TO
ROTHSTEIN'S MOTION TO SET ASIDE DEFAULT
Plaintiff, JEFFREY EPSTEIN, submits his response in opposition to Defendant
1
SCOTT ROTHSTEIN'S ("Rothstein") Motion to Set Aside Default, and states:
Background and Procedural Posture
1. Epstein filed the instant action against Rothstein and others on December
9, 2009.
2. Rothstein was the former Chairman and CEO of the now defunct law firm,
Rothstein, Rosenfeldt & Adler, P.A. ("RRA"). Rothstein was a licensed, bona fide
litigator, not a lay person unfamiliar with lawsuits and legal process.
3. Rothstein was indicted and pled guilty to five counts including
racketeering, money laundering and fraud related to a massive Ponzi scheme he
conducted through RRA. His sentencing is scheduled for June 9, 2010.
4. On December 09, 2009, Rothstein was personally served with the
summons and Complaint in this action. See Verified Return of Service attached as
IEWilbit A and Affidavit of Carlos Aguirre, process server, attached as Exhibit B.
EFTA01112660
5. As set forth in Mr. Aguirre's affidavit, Rothstein was in a hallway, out of his
cell, with other prisoners, when a guard called his name and he came forward. See
Exhibit B 115. Mr. Aguirre then -personally placed the Complaint and Amended
Summons in Mr. Rothstein's hands and advised him that he was being served with a
lawsuit. Mr. Rothstein turned and walked away with the papers l served him." kJ,
8. On December 31, 2009, Epstein filed a Motion for Default due to
Rothstein's failure to respond to the Complaint.
7. A default (attached as Exhibit C) was entered by the Clerk on January 21,
2010.
8. Over two months after being served with the Complaint, Rothstein filed a
Motion to Set Aside Default on February 17, 2010.
9. Several weeks later and on the eve of the hearing on the Motion to Set
Aside Default, Rothstein filed an affidavit on March 8, 2010 in support of his Motion to
Sot Aside Default (attached as Exhibit D).
10. The next day, March 9, 2010, a hearing was conducted on Rothstein's
Motion to Set Aside Default and the Court deferred ruling so the parties could conduct
discovery related to the motion (3/9/10 Order attached as Exhibit E).
11. On April 15, 2010, Epstein filed a Motion to Strike Affidavit of Scott
Rothstein because Epstein was unable to depose Rothstein.
12. On April 23, 2010, the Court denied Epstein's Motion to Strike Affidavit of
Scott Rothstein and granted an additional thirty (30) days to depose Rothstein (4/23/10
Order attached as Exhibit F).
13. However, Epstein has been unable to locate, let alone depose, Rothstein.
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EFTA01112661
14. Indeed, Rothstein's own counsel has had considerable difficulty locating
and communicating with his client. In an April 22, 2010 article in the South Florida
Business Journal (attached as Exhibit G), it was reported that Rothstein's counsel,
Mark Nurik, Esq., was unaware of his client's location 'for substantial periods of time and
has only had limited contact with Rothstein.
15. Moreover, Epstein's counsel has made the numerous efforts to locate and
depose Rothstein, to no avail:
a. Telephone conference with Lisa Kaye, Case Management
Coordinator/Legal Liaison at the Federal Detention Center in Miami — was
advised they do not have custody of Rothstein, have no information on his
whereabouts and could not assist in coordinating his deposition;
b. Telephone conference with U.S. Marshal's office — was advised they are
not responsible for coordinating depositions and would not give provide
any information regarding Rothstein.
c. Telephone conference Bureau of Prisons Inmate Locator in Washington
D.C. — was advised they have no record of Scott Rothstein;
d. Telephone conference with Port St. Lucie Jail — was advised they had
custody of Rothstein for brief period, but had no information on his
whereabouts;
e. Two voicemalls for Bureau of Prisons — never returned a call;
f. Two letters and two voicemails for United States Attorney Paul Schwartz —
never returned a call or responded to letters; and
g. Voicemail for United States Attorney Jeff Kaplan — never returned call.
Legal Standard — Setting Aside Default
16. It is axiomatic that a party moving to set aside a default must establish (1)
due diligence in moving to set aside the default; (2) excusable neglect in failing to
respond to the complaint; and (3) a meritorious defense to the allegations of the
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EFTA01112662
complaint. See Hill v. Murphy, 872 So. 2d 919, 921 (Fla. 2d DCA 2003).
17. The party seeking to set aside the default bears the burden of
demonstrating excusable neglect, a meritorious defense and due diligence. See Zivitz
v. Zivitz 16 So. 3d 841,849 (Fla. 2d DCA 2009)
18. The standard of review for an order denying a motion to vacate a default is
whether the trial court abused its discretion. See Szucs v. Qualico Development. Inc.,
893 So. 2d 708, 710 (Fla. 2d DCA 2005).
Rothstein's Affidavit Does Nothing to Establish a Meritorious Defense
19. Courts have repeatedly held that to establish a meritorious defense, the
defendant must tender either a defensive pleading showing the defense or a sworn
motion or affidavit stating the facts supporting the meritorious defense. Sep Hill v.
Murphy, 872 So. 2d 919, 921 (Fla. 2d DCA 2003).
20. In it the defendant filed an affidavit in support of a motion to set aside a
default in which he asserted that he did not enter into an agreement with plaintiffs. See
hill 872 So. 2d at 921. The court found that a[w]hile this assertion does constitute a
factual allegation in an affidavit, it does not establish a meritorious defense" because
the causes of action against the defendant (negligent supervision, civil conspiracy and
FI`UTPA) "[do not] depend on the existence of a contract between [the parties]." Id
The court went on to note that "[a] factual allegation that does not meet the substance of
the allegations against the affiant does and cannot state a 'meritorious' defense." it
(Emphasis added). Accordingly, the court concluded that the trial court did not abuse its
discretion in refusing to set aside the clerk's default. Id.
21. Rothstein did not tender a defensive pleading and his affidavit is a far cry
4
EFTA01112663
from establishing a meritorious defense. While he claims to have "many meritorious
defenses to the Complaint: he only purports to describe one, which constitutes neither
a factual nor legal defense to any of the counts in the Complaint.
22. The crux of Rothstein's purported defense is that co-Defendant, Bradley
Edwards (a former RRA attorney), filed lawsuits against Epstein on behalf of his clients
prior to joining RRA and that these "were and are real cases, with real plaintiffs that
have real claims against Epstein." See Exhibit D ¶9. Then, without any explanation,
Rothstein makes the conclusory assertion that these facts "go[j against several counts
in the Complaint, including, but not limited to, the RICO count."
23. From his affidavit, it appears that Rothstein has still not read the
Complaint.
24. The Complaint, in no uncertain terms, acknowledges that M.,M and
Jane Doe are in fact real plaintiffs who have filed real cases. Indeed, the Complaint
alleges that Rothstein liaised investor money to pay plaintiffs (i.e.,■ and Jane
Doe) 'up front' money such that plaintiffs would refuse to settle the Civil Actions." See
Complaint ¶31.c. So it is unclear what defense Rothstein is attempting to establish by
asserting that M., and Jane Doe are real plaintiffs with real cases, a fact alleged
in the Complaint.
25. What is clear Is that Rothstein's affidavit falls woefully short of
demonstrating a defense, let alone a meritorious one, that would support setting aside
the default and the Court should therefore deny Rothstein's motion. "A factual
a;legation that does not meet the substance of the allegations against the affiant does
and cannot state a 'meritorious' defense." See Hill, 872 So. 2d at 921.
5
EFTA01112664
Rothstein's Failure to Respond to the
Complaint Was Not the Result of Excusable Neglect
26. To set aside a default, Rothstein must also demonstrate excusable
neglect in falling to respond to the complaint. See Hill 872 So. 2d at 921. Rothstein's
affidavit does not controvert the fact he was personally served and demonstrates that
he essentially ignored this lawsuit. Such indifference to legal process is inexcusable.
27. In Medcom USA, Inc. v, Ryder Homes & Groves, Co., 847 So. 2d 594,
596 (Fla. 2d DCA 2003), defendant moved to set aside a clerk's default and filed
affidavits of its president, vice president and chief counsel, which asserted that
defendant "had not been served with process; that [defendant's] first knowledge of the
suit was the receipt of the final judgment ... and that the company had immediately
retained counsel to take appropriate steps to respond to the action.' The court affirmed
the trial court's refusal to set aside de
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