EFTA01187485.pdf

TONJA HADDAD, PA 315 SE 711. Street elephone Suite 301 facsimile Fort Lauderdale, FL 33301 December 5, 2012 Via Hand Delivery The Honorable David Crow Palm Beach County Courthouse 205 N Dixie Highway Room 9.1215 West Palm Beach, FL 33401 Re: Epstein v. Rothstein, et al. Dear Judge Crow: Attached hereto please find a copy of Mr. Epstein's Memorandum of Law in of Opposition to Mr. Edwards's Second Renewed Motion for Leave to Assert a Claim for Punitive Damages, and all accompanying exhibits. This Motion is set for hearing on Monday. December 17, 2012, at 10:00AM. Please feel free to contact my office should any additional information be required. Sincerely, TONJA HADDAD, PA \ncia ;it CoR W14/.ot-ik Tonja lladdad Coleman, Esq. for the firm cc: Jack Scarola, Esq. All parties on Service List EFTA01187485 JEFFREY EPSTEIN, IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN Plaintiff, AND FOR PALM BEACH COUNTY, FLORIDA vs. SCOTF ROTHSTEIN, individually, CASE NO.: 502009CA040800XXXXMBAG and BRADLEY J. EDWARDS, individually. JUDGE: CROW Defendants. PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT/COUNTER-PLAINTIFF BRADLEY EDWARDS'S SECOND RENEWED MOTION FOR LEAVE TO ASSERT A CLAIM FOR PUNITIVE DAMAGES Plaintiff/Counter-Defendant Jeffrey Epstein ("Epstein"), by and through his undersigned counsel and pursuant to Rule 1.190(0 of the Florida Rules of Civil Procedure and §768.72 of the Florida Statues, hereby files this Memorandum of Law in Opposition to Defendant/Counter-Plaintiff Bradley Edwards's ("Edwards") Second Renewed Motion for Leave to Assert Claim for Punitive Damages. In support thereof, Epstein states: PROCEDURAL HISTORY OF PUNITIVE DAMAGES IN THIS CASE On October 19, 2010, Defendant/Counter-Plaintiff Bradley Edwards (hereinafter "Edwards") filed his first Motion for Leave to Assert Claim for Punitive Damages against Plaintiff/Counter-Defendant Jeffrey Epstein (hereinafter "Epstein"). This Honorable Court denied that motion on July 13, 2011, after an extensive hearing, citing as grounds therefor the glaring procedural deficiencies contained in Edwards's Motion. On August 17. 2012, Edwards filed a Renewed Motion for Leave to Assert Claim for Punitive Damages, which was identical in all material respects to the original Motion that this Court denied. Upon receipt of Epstein's Motion for Sanctions and Memorandum of Law EFTA01187486  the in Opposition to Edwards's Renewed Motion, Edwards unceremoniously canceled specially-set hearing on his Renewed Motion for Leave to Assert a Claim for Punitive Damages. to On October 19, 2012, Edwards filed his Second Renewed Motion for Leave Assert a Claim for Punitive Damages. This Second Renewed Motion, however, though as padded with irrelevant, sensational and conclusory statements masquerading as fact, is procedurally and legally deficient as the first two motions. Through all the smoke and mirrors of its ill-conceived contentions, the motion is undeniably a "recycled version" of Edwards's Motion for Summary Judgment. Even a cursory review of the document irrefutably establishes same, as Edwards neglected to change the headings in the Motion, failed to remove the "summary judgment standard," overlooked the removal of each and every prayer for relief in which he asks the Court to grant him Summary Judgment, and utterly failed to include any argument, case law, or submission that would establish that his Summary Judgment argument bears any relation to his claim for punitive damages.' Edwards's Motion further sets out, in detail, the standard for Summary Judgment, yet fails anywhere to explain or delineate how a Motion which leas neither argued nor granted is applicable to a claim for punitive damages. Edwards is deliberately attempting to confuse the central issue he is required to argue in this Motion; to wit: providing proffered evidence showing entitlement to plead a claim for punitive damages. Nowhere in Edwards's motion does he even attempt to provide a legal standard for punitive damages or proffer any facts that come remotely close to satisfying that standard. Moreover, for yet a third time Edwards fails to heed this Court's basic instructions to Epstein submits that there is no case law that states that the standard for summary judgment; to wit: "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." is in any way related to a "reasonable showing that would prove the basis for punitive damages." 2 EFTA01187487 provide "a written summary of the evidentiary proffer with appropriate page and line citations, deposition testimony, land' affidavits." See Transcript from July 13. 2011 hearing page 36: line 9- page 37; line 3 (emphasis added). Instead, Edwards provides the Court with a heap of conclusory allegations and general references (without the requisite citations) to previously filed documents, including two contradictory affidavits and his purported "Statement of Undisputed Facts." Accordingly, Edwards again failed to heed this Court's prior Order denying Edwards's First Motion for Leave to Assert a Claim for Punitive Damages and to abide by the basic requisites to assert a motion to plead punitive damages. For these reasons, as explained more fully below. Edwards's Second Renewed Motion for Leave to Assert Claim for Punitive Damages must be denied. SUMMARY OF THE ARGUMENT Edwards's Second Renewed Motion for Leave to Assert a Claim for Punitive Damages is both legally and procedurally deficient. First, Edwards completely disregards the requisites delineated by this Court, §768.72 of the Florida Statutes, and Beverly Rehabilita►ion Services, Inc. v. Meeks, 778 So. 2d 322 (Fla. 2d DCA 2000) and its progeny with respect to properly pleading for leave to assert a claim for punitive damages. Edwards's Second Renewed Motion provides neither the legal standard for recovery of punitive damages nor proffered evidence that could possibly satisfy that legal standard. In fact, his Motion is devoid of any reasonable basis upon which an award of any damages, much less punitive damages, could be recovered. Other than inserting into his twenty-nine page recycled Summary Judgment Motion a page and a half of "applicable law" regarding Florida's burden of proof for asserting a claim for punitive 3 EFTA01187488  and damages. Edwards has re-filed, in its entirety, his Motion for Summary Judgment. attached in support thereof affidavits drafted, executed, and filed more than 2 years ago, t to which are neither relevant nor factually supportive for his assertion of entitlemen two plead punitive damages. Moreover, Edwards's contradictory statements in these his stale, extraneous. and obviously self-serving affidavits place the very reliability of only proffers squarely in question.2 To the extent that any proffered evidence from Edwards establishes anything at all, it only makes it abundantly clear that any and all actions taken by Epstein for which Edwards is now suing occurred during the pendency oflitigation, thereby falling under the very same litigation privilege relied upon by Edwards in his Motion for Summary Judgment as barring suit, and consequently, any recovery of damages. In addition to these glaring legal deficiencies, for a yet a third time, Edwards cavalierly disregards the applicable Florida Rules of Civil Procedure and this Court's specific instructions for properly pleading a punitive damages motion by failing to provide a properly referenced, cited, and written summary of his evidentiary proffer. Second, Edwards's Second Renewed Motion does not, and in fact will never be able to, proffer any facts that establish that Mr. Epstein could ever be found "guilty of intentional misconduct or gross negligence" as is required to recover punitive damages under §768.72 of the Florida Statutes . Both Edwards's own Motion and his responses to - Referring to Epstein's high-profile friends in paragaph 18 of Edwards's April 23, 2010 affidavit, it is Edwards's sworn testimony that "We have no information that any of these people (other than Alan Dershowitz IMr. Epstein's lawyer who would be subject to attorney-client privileges and should also not have been noticed for deposition for precisely that reason]) have spoken to Mr. Epstein about Jane Doe or any of the other specific victims of Mr. Epstein's molestation." This prior sworn testimony is in direct contravention to Edwards's claims in his September 21, 2010 affidavit that each of Mr. Epstein's high profile friends that had been noticed for depositions were noticed because it was thought that they might have relevant information relating to Epstein's alleged molestations. See Affidavit of Edwards, dated September 21, 2010.11 13-17. At best, it shows that Edwards's self-contradicting testimony is unreliable and cannot serve as the basis for a reasonable proffer. 4 EFTA01187489  below, conclusively establish Epstein's discovery requests, as discussed in more detail by Epstein with the requisite that Edwards cannot identify one act purportedly taken record evidence in this case intent or degree of gross negligence. Moreover, because the to support Edwards's underlying is absolutely devoid of any factual basis whatsoever , there can be no claim for claims for Abuse of Process and Malicious Prosecution wed Motion must be denied. punitive damages. As such. Edwards's Second Rene FAILS TO SATISFY THE PLEADING I. EDWARDS ITIVE DAM AGES REQUIREMENTS TO ASSERT A CLAIM FOR PUN rds bears the burden of It is well established that as the movant, Edwa nable showing by evidence in demonstrating entitlement to punitive damages by a "reaso e a reasonable basis for the the record or proffered by the claimant which would provid A claim for punitive damages recovery of such damages." § 768.72 FLA. STAT. (2012). Legare v. Music & Worth will not stand, absent allegations of supporting ultimate facts. Civ. P 1.190(1). See also Will Cont., Inc.. 486 So. 2d 1359 (Fla. 1st DCA 1986); FLA. R. 3d DCA 1989). Section v. Systems Engineering consultants, 554 So. 2d 591, 592 (Fla. 768.72 governs punitive damages, and provides, in relevant part: shall be (I) In any civil action, no claim for punitive damages nce in the permitted unless there is a reasonable showing by evide de a reaso nable record or proffered by the claimant which would provi move to amend basis for recovery of such damages. The claimant may allowed by her or his complaint to assert a claim for punitive damages as be liberally the rules of civil procedure. The rules of civil procedure shall which appears construed so as to allow the claimant discovery of evidence nce on the issue of reasonably calculated to lead to admissible evide proceed until punitive damages. No discovery of financial worth shall after the pleading concerning punitive damages is permitted. if the trier of (2) A defendant may be held liable for punitive damages only that the defendant fact, based on clear and convincing evidence, finds gross neglig ence. was personally guilty of intentional misconduct or As used in this section, the term: had actual (a)"Intentional misconduct" means that the defendant 5 EFTA01187490  knowledge of the wrongfulness of the conduct and the high probability that the injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage. (b)"Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct. 768.72 FLA. STAT. (2012) (emphasis added). The Florida Supreme Court, in analyzing the plain meaning of § 768.72, stated that it "now requires a plaintiff to provide the court a with a reasonable evidentiary basis for punitive damages before the court may allow claim for punitive damages to be included in a plaintiffs complaint." Globe Newspaper Company v. King, 658 So. 2d 518, 520 (Fla. 1995). Additionally, Rule 1.190(1) of the Florida Rules of Civil Procedure governs amendments to pleadings to assert a claim for punitive damages and provides: A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. 'I'he motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing. FLA. R. Civ. P 1.190(f). In the case at hand, Edwards completely disregards the applicable law and its requirement to make a reasonable showing of "intentional misconduct" or "gross negligence" as such terms are defined in §768.72 of the Florida Statutes. Nowhere in Edwards's motion does he even acknowledge his obligation to cite in the record or proffer reasonable evidence that Epstein "had actual knowledge of the wrongfulness of the conduct and the high probability that the injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of 6 EFTA01187491  that it conduct"; or that Epstein's "conduct was so reckless or wanting in care of constituted a conscious disregard or indifference to the life, safety, or rights persons exposed to such conduct." § 768.72(2) FLA. STAT. (2012) (emphasis added). and Edwards's Motion fails to recite any facts to demonstrate that Epstein's state of mind conduct rise to the substantially heightened level required by the punitive damages statute. As a result, Edwards fails to provide this Court, or the party against whom punitive damages are sought, with any evidentiary basis, let alone a reasonable one, for punitive damages. Moreover, Edwards has, for yet a third time, undeniably neglected to meet even the procedural requirements to satisfy his burden of proof of proffering evidence that meets the heightened punitive damages standard. This Court, in denying Edwards's First Motion for Leave to Assert a Claim for Punitive Damages declared: [Rule] 1.190, which is the rule on amended and supplemental pleadings, was amended in two thousand, I believe, 2003 pursuant to Florida Statute 768.72 to give guidance as to how you go about doing this. And the footnotes to the Civil Rules of Procedure... cites it to [sic], it says that subsection is amended to comply with the case of Beverly. Beverly Health And Rehabilitation Services, Inc. versus !leeks. And I have been applying this case before they actually incorporated it into the rules, but that case specifically said, it set up a procedure, at least, in the Third District for motions for punitive damages. And, I'll quote from paragraph — I don't know what page it is here. But, basically, says this — and I've been applying this in the past as well. Accordingly, it is and shall be the practice of this Court to require a written summary of the evidentiary proffer with appropriate page and line citations, deposition testimony, affidavits need to be filed and served in advance of the hearing so the defendant will have a reasonable opportunity. The motion doesn't do that. See Transcript from July 13. 2011 hearing page 36: line 9- page 37: line 4 (emphasis added). This Court directed Edwards to adhere to the following straightforward, 7 EFTA01187492 unadorned instructions: I have just said. I don't I want you to make a motion pursuant to what You know, when you want any incorporated things, you know . . . for me. I need it in incorporate something else that doesn't work read it as a motion . front of me. I need the page, line so I can Again, Mr. Scarola, we're going to do it my way. 4-25 (emphasis added). Transcriptfrom July 13. 2011 hearing page 38: lines provide "a written summary of the Because Edwards's original Motion failed to line citations, deposition testimony, evidentialy proffer with appropriate page and procedurally deficient and denied affidavits," the Court determined that Motion to be y defici ent and must likewise be same. The instant Motion is equally as procedurall denied. Order. Ile provides no Edwards, yet again, blatantly disregards this Court's d his motion is scattershot with written summary of the evidentiary proffer. Instea the Court make negative conclusory and misleading statements and requests that and line references, to the extent inferences, all masquerading as facts. Ills specific page not, to provide cryptic he provides them at all, are minimal, choosing, more often than failing to specify to general references to Epstein's "Complaint" (in nearly all cases impermissibly incorporate which version of the Complaint he is referring) and to again Facts." By failing to specify by general reference his so-called "Statement of Undisputed specific allegations, page, to which of Epstein's Complaints he is referring, as well as the can be found. Edwards makes and paragraph numbers upon which the purported evidence r. Moreover, Edwards it impossible for the Court or Epstein to evaluate Edwards's proffe ers, to his voluminous numerous general references, without page or paragraph numb made clear would not be "Statement of Undisputed Facts" are precisely what this Court 8 EFTA01187493 tolerated in any renewed motion by Edwards. Additional examples of the utter disregard for proper procedure in Edwards's motion are legion, but all lead to the same inevitable conclusion: Edwards has deliberately "muddied the waters" to conceal his inability to proffer evidence on the central issues in this motion; to wit: whether, in the specific litigation against Edwards, Epstein engaged in "intentional misconduct" or "gross negligence" as such terms are defined in § 768.72 of the Florida Statutes, thus entitling him to plead a claim for punitive damages. As such, Edwards fails to comply with the Florida Rules of Civil Procedure, § 768.72 of the Florida Statutes, and this Court's very specific requirements for a motion for leave to assert a claim for punitive damages, and his Motion must be denied. Separate and apart from Edwards flagrant disregard for the procedural requirements of this Court and applicable law, Edwards fails to provide one scintilla of proffered evidence in his Second Renewed Motion which, if true, would lead to any award of damages at all; much less punitive damages. Indeed, in his introductory sentence Edwards asserts that Epstein's culpability is somehow based upon "Itihe pleadings and discovery taken to date .. ."See Edwards's Second Renewed Motionfor Leave to Assert a Claim for Punitive Damages, page 4 (emphasis added), which is attached hereto as "Exhibit A." Not only does this mere reference to the "pleadings and discovery" provide one more example of Edwards abject failure to satisfy this Court's prior Order and the seminal case law regarding "proffered evidence," but it also clearly demonstrates that the actions for which Edwards is seeking damages occurred in the course oflitigation; which, based on the very same arguments raised by Edwards in the instant Motion, bar Edwards's claim against Epstein. See Beverly Rehabilitation Services, Arguably. there is no legally permissible reason to "go after those close to" a defendant. 9 EFTA01187494  . Accordingly, because Edwards has Inc. v. Meeks, 778 So. 2d 322 (Fla. 2d DCA 2000) a motion to assert a claim for disregarded this Court's order and failed to properly plead punitive damages, his Motion must be denied. REQUIRED TO II. EDWARDS CANNOT MEET THE THRESHOLD USE HE CANNOT ASSERT A CLAIM FOR PUNITIVE DAMAGES BECA EN OUTSIDE OF THE PROFFER ANY EVIDENCE OF ACTIONS TAK LITIGATION s every element of liability "A punitive award is proper only if the plaintiff prove So. 2d 454, 457 (Fla. 1989). on the underlying cause of action." Ault v. Lohr, 538 rds has not, and cannot. Edwards cannot. and will not ever, meet this burden. Edwa any and all actions purportedly proffer any evidence to satisfy this threshold because ege. Florida's litigation privilege taken by Epstein are protected by the litigation privil absolute privilege from civil provides to all persons involved in judicial proceedings an . Middlebrooks. Moves & liability for actions taken in relation to those proceedings. Levin (Fla. 1994). The Florida Mitchell. P.A. v. U.S Fire Ins. Co., 639 So. 2d 606, 608 ion privilege and in so doing Supreme Court explained the policy reasons for the litigat stated: ute immunity In balancing policy considerations, we find that absol a judicial must be afforded to any act occurring during the course of atory proceeding, regardless of whether the act involves a defam nduct at statement or other tortious behavior such as the alleged misco eding . The issue, so long as the act has some relation to the proce ents is rationale behind the immunity afforded to defamatory statem g the cours e of a equally applicable to other misconduct occurring durin be free to judicial proceeding. Just as participants in litigation must ipants engage in unhindered communication, so too must those partic defen ding a be free to use their best judgment in prosecuting or subsequent lawsuit without fear of having to defend their actions in a civil action for misconduct. Levin, 639 So. 2d at 608 (emphasis added). IO EFTA01187495  responses, As unequivocally proven by Edwards's own pleadings and discovery occurred solely in the events giving rise to Edwards's purported claims against Epstein context of the the conduct of the litigation. Epstein has not taken any action "outside the v. Kleppin, judicial proceeding, such as . . actions extrinsic to the litigation." Suchite Escrow of 2011 WI. 1814665. p.•3 (S.D. Fla. 2011) (citing American Nat. Title & 4th DCA Florida, Inc. v. Guarantee Title & Trust, Co., 748 So. 2d 1054, 1056 (Fla. 1999)); see also Monlejo v. Martin Memorial Medical Center. Inc., 935 So. 2d 1266, 1269 (Fla. 4th DCA 2006). For example, the record evidence as provided by Edwards himself establishes that Edwards bases his cause of action for Abuse of Process upon "Iclach 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" as "perversion of process after its initial service." See Edwards's Third Amended Counterclaim, paragraph 16 (emphasis added), which is attached hereto as "Exhibit B." Likewise, in Epstein's Interrogatories to Edwards dated May 16, 2011, Edwards was asked to provide an exact and detailed description of the process alleged to be abusive, and in his response, served upon Epstein on June 10, 2011, Edwards responded "every pleading, motion, notice and discovery request served by the Plaintiff on Bradley Edwards in this case." See Answers to Interrogatories filed June 10. 2011 attached hereto as "Exhibit C" (emphasis added). When asked for the dates upon which each and every purported abuse of process occurred, Edwards again replied: "the date of service of each of the above as reflected on the Certificate of Service of each." See II EFTA01187496  to. and indeed cannot point to, one Exhibit C (emphasis added). Edwards has not pointed rdingly, because in the instant case the act outside of or extrinsic to, the litigation. Acco ss claim. Edwards will not ever litigation privilege is applicable to the Abuse of Proce Levin, Middlebrooks, Moves & satisfy his burden. mandating denial of his Motion. 1994). Mitchell. P.A. v. U.S Fire Ins. Ca, 639 So. 2d 606, 608 (Fla. UIRED TO III. EDWARDS CANNOT MEET THE THRESHOLD REQ CANNOT USE HE ASSERT A CLAIM FOR PUNITIVE DAMAGES BECA ING CAUSES PROFFER ANY EVIDENCE TO SUSTAIN THE UNDERLY OF ACTION t a Claim A. Edwards Cannot Meet the Threshold Required to Asser nce of for Punitive Damages Because he Cannot Proffer any Evide Abuse of Process damages under a Edwards did not, nor can he, assert the requisites to recover any is required to plead and prove claim for Abuse of Process. To properly do so. Edwards or perverted use of process the following: I) that the defendant made an illegal, improper, a prior action or after the alter it issues (Le., improper willful acts during the course of or motives or purposes in filing of the Complaint); 2) that the defendant had ulteri 3) that as a result of exercising such illegal, improper, or perverted use of process; and ge. S&I Investments such action on the part of the defendant, the plaintiff suffered dama Peckins v. Kaye. v. Payless Flea Ma•ket, Inc., 36 So. 3d 909, 917 (Fla. 4th DCA 2010); ts not in the issuance of 443 So. 2d 1025, 1026 (Fla. 2d DCA 1983) ("The abuse consis ce. The writ or process process. but rather in the perversion of the process after its issuan by law intended."); see also must be used in a manner, or for a purpose for which it is not is no abuse of process Blonde v. Powers, 805 So.2d 67. 68 (Fla. 4th DCA 2002) ("there it was created regardless . . . when the process is used to accomplish the result for which se."). of an incidental or concurrent motive of spite or ulterior purpo 12 EFTA01187497  a cause of action, there must be an Florida law is clear that in order to bring such action was filed and process was served. act constituting misuse of process after the 1051. 1056 (Fla. 4th DCA 1987). Thus. Della-Donna v. Nova University. Inc., 512 So.2d defendant contends it was filed in order to the mere filing of a complaint, even if the (defendant entitled to summary judgment harass the plaintiff, does not suffice. Id. at 1056 constituted misuse of process after it based on plaintiff's failure to prove "any act which So. 2d 1208, 1209-10 (Fla. 4th was issued."); see also McMurray v. U-Haul Co, Inc., 425 counterclaim absent "allegation of a DCA 1983) (dismissing debtor's abuse of process d."). Most importantly. however, post-issuance act other than service of what was issue n for Leave to Assert a Claim Edwards repeatedly asserts in his Second Renewed Motio rds was filed in the total for Punitive Damages that "Epstein's Complaint against Edwa on the pan of Edwards . . ." absence of evidence to support any allegation of wrongdoing t a Claim far Punitive See Echvards's Second Renewed Motion for Leave to Asser Edwards could prove this Damages, page 1. However, even assuming arguendo that of action itself is assertion, the "maliciousness or lack of foundation of the asserted cause Gresh, 501 So. 2d 87. 90 actually irrelevant to the tort of abuse of process." Marty v. (Fla. 1st DCA 1987) (emphasis added). nothing more Here, Edwards's mere reference to only "actual process" that did ss, both barring his than achieve that which it was designed to do is not an abuse of proce Powers, 805 So.2d cause of action and, obviously, an award of any damages. Biondo v. litigation to 67, 68 (Fla. 4th DCA 2002). Moreover, Edwards has failed throughout this his Third Amended make any allegations that the process upon which he relies in ins any actions Counterclaim, and purportedly in his claim for punitive damages, conta 13 EFTA01187498 constituting misuse of process after the action was filed, also barring his claim. Accordingly, because Edwards cannot, and has not, proffered any evidence of an Abuse of Process, his Motion must be denied. B. Edwards Cannot Meet the Threshold Required to Assert a Claim for Punitive Damages Because lie Cannot Proffer any Evidence of Malicious Prosecution Likewise, Edwards has not, nor will he be able to, properly assert a claim for Malicious Prosecution. A Malicious Prosecution action requires that the plaintiff prove each of the following six elements: 1) a criminal or civil judicial proceeding was commenced against the plaintiff; 2) the proceeding was instigated by the defendant in the malicious prosecution action; 3) the proceeding ended in the plaintiff's favor; 4) the proceeding was instigated with malice; 5) the defendant lacked probable cause; and 6) the plaintiff was damaged. See Doss v. Bank ofAmerica, N.A., 857 So. 2d 991, 994 (Fla. 5th DCA 2003); Katt v. Dollar Rent-A-Car, 422 So. 2d 1031, 1032 (Fla. 3d DCA 1982) (holding that "(t]he absence of any one of these elements will defeat a malicious prosecution action."Xemphasis added); Adams v. Whitfield, 290 So. 2d 49, 51 (Ha. 1974). The case of Jack Eckerd Corp. v. Smith, 558 So. 2d 1060 (Fla. 1st DCA 1990) is instructive. In Smith, the court stated that in a malicious prosecution action, legal malice which may he inferred from the absence of probable cause, is not sufficient to support punitive damages unless "it encompasses a showing of moral turpitude or willful and wanton disregard of the plaintiff's rights, which presupposes the defendant's knowledge or awareness of the risk to plaintiff's rights, or evidence of excessive and reckless disregard of the plaintiffs rights. Legal malice based solely upon the want of 14 EFTA01187499 probable cause is not sufficient to support an award of punith c damages." Id. at 1063 (emphasis added). See also Wilson v. O'Neal, 118 So. 2d 101, 105 (Fla. 1st DCA 1960) ("Malice is not only an essential element of malicious prosecution but it is the gist of this cause of action."); While v. Miami Home Milk Producers Ass 'n, 197 So. 125, 126 (Fla. 1940) (Malice is a fact to be proven by the plaintiff as it is "a necessary ingredient of the charge of malicious prosecution" and it is not synonymous with want of probable cause.). Edwards proffers no evidence of legal malice other than his asserted (and unsubstantiated) want of probable cause, and accordingly, Edwards's Motion must be denied. Edwards asserts that Epstein's lawsuit against him was filed in the absence of probable cause to support wrongdoing, absent any damages, absent any intent to comply with discovery, and for the sole purpose to intimidate. See Edwards's Second Renewed Motionfor Leave to Assert a Claimfor Punitive Damages, page 1. While the law is clear that neither Edwards's Motion nor this Response in Opposition is the proper means through which to argue the merits of the case, Epstein would submit the following statement in rebuttal thereto: First, with respect to the case being filed "in the absence of probable cause," notwithstanding the law expressly negating that argument above, at the time Epstein filed his case against Edwards, there existed the following uncontested. irrefuted, and undeniable facts: 1) The Federal Arrest and Indictment of Scott Rothstein (Edwards's Partner at RRA) for the largest Ponzi scheme in Florida's history; 2) Evidence provided scheme: 3) by Rothstein admitting that Epstein's cases were used to further the Ponzi Rothstein Edwards serving as lead counsel and the supervising attorney over the cases 15 EFTA01187500  a Bar investigation into nearly admits were used to further the Ponzi Scheme; 4) a Florid rds was a partner; 5) discovery one-third of the attorneys employed by RRA where Edwa six (6) months during which and investigation intensified considerably during the short 000.00 in expenditures during that Edwards was at RRA (Edwards admits to over $200, were more than 18 attorneys time, and according to Edwards's own privilege log there at RRA); 5) the repeated use of a and staff members working on the Epstein cases prosecuting the cases against Epstein convicted felon (Ken Jenne) for investigating and rs at RRA were engaging in supervised by Edwards; and 6) Edwards and his partne ss," such as participating in multiple actions that would be deemed "outside the proce rds's own Privilege Log), using the hundreds of communications with the press (see Edwa activities that are prohibited by press to conduct investigations and participate in Epsteinallot (see Cara Holmes's attorneys, instructing others to "go after those close to best bet is to go after those email to Edwards dated July 29, 2009 stating "1 think our influential friends of Epstein who close to Epstein"), setting depositions of wealthy and d, knowledge of any other irrefutably had no knowledge of the underlying cases or, indee al complaint against Epstein claims against Epstein (see footnote 2), and filing a Feder own admission he never while at RRA that Edwards denied filing, and by Edwards's Complaint, Paragraph 8 and served. See Edwards's Answer to Epstein's Original Paragraphs 7-9, attached Epstein's Request for Admissions and Edwards's Responses, the time the Complaint(s) against hereto as composite "Exhibit D." Consequently, at in based his claim. Edwards were filed, there was a factual basis upon which Epste rds has suffered no Second, the record evidence does establish not only that Edwa ing in exactly the same activities damages, but also that as the "Plaintiff' he is now engag 16 EFTA01187501 as those purportedly taken by Epstein with which Edwards took issue in his Third Amended Counterclaim and upon which he now bases his claim for damages. See Edwards's Second Renewed Motion for Leave to Assert a Claim for Punitive Damages, page 1. The record evidence shows that each of Edwards's Four Counterclaims were "filed in the total absence of evidence that [EDWARDS) had sustained damages as a consequence of any misconduct; [and] was filed in the absence of any intention to meet his own obligation to provide relevant and material discovery." See Edwards's Second Renewed Motion for Leave to Assert a Claim for Punitive Damages. page I. For example. in Epstein's Third Set of Interrogatories to Defendant/Counter-Plaintiff Bradley .1. Edwards ("hereinafter "Third Set of Interrogatories") Epstein's Interrogatory No. I asked Edwards to: identify each and every fact that supports your allegation set forth in your Second Amended Counterclaim by providing (a) a detailed description of the damages you allege you have suffered, including, but not limited to, those you claim have resulted in (1) injury to your reputation, and (2) interference with your professional relationship; and (b) a detailed description of the special damages you allege you have suffered, including but not limited to: (1) the loss of the value of your time diverted from your professional responsibilities, and (2) the cost of defending claims against you in this lawsuit. Edwards responded: The identification of "each and every fact that sic] supports" specific allegations would require the disclosure of mental impressions and thought processes of counsel