EFTA01070451.pdf

Document 207 Entered on FLSD Docket 07/20/2009 Page 2 of 9 Case 9:08-cv-80119-KAM JANE DOE NO. 6 CASE NO.: 08-CV-80994-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE NO. 7 CASE NO.: 08-CV-80993-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant C.M.A. CASE NO.: 08-CV-80811-MARR/VJOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE CASE NO.: 013-CV-80893-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant 2 EFTA01070451  Document 207 Entered on FLSD Docket 07/20/2009 Page 3 of 9 Case 9:08-cv-80119-KAM DOE II CASE NO.: 09-CV-80469-MARRA/JOHNSON Plaintiff, VS. JEFFREY EPSTEIN, Defendant. JANE DOE NO. 101 CASE NO.: 09-CV-80591-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE NO. 102 CASE NO.: 09-CV-80656-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ORDER REGARDING PLAINTIFF, C.M.A.'S, MOTION FOR PROTECTIVE ER, INC, DR. SERGE THYS, TREATMENT RECORDS FROM PARENT-CHILD CENT BEACH COUNTY, GOOD DOMINIQUE HYPPOLITE/SCHOOL DISTRICT OF PALM FLORIDA ATLANTIC SAMARITAN HOSPITAL ST. MARY'S HOSPITAL, INCORPORATED UNIVERSITY AND GLORIA C. HAKKARAINEN, M.D. AND MEMORANDUM OF LAW attorneys, hereby files her Plaintiff, C.M.A., by and through her undersigned Records From Parent-Child Center, Motion For Protective Order Regarding Treatment ct of Palm Beach County, Good Inc., Dr. Serge Thys, Dominique Hyppolite/School Distri Atlantic University and Gloria C. Samaritan Hospital, St. Mary's Hospital, Florida 3 EFTA01070452  Document 207 Entered on FLSD Docket 07/20/2009 Page 4 of 9 Case 9:08-cv-80119-KAM and in support there of Hakkarainen, M.D. and Incorporated Memorandum of Law, states as follows: st Defendant, 1. This is an action to recover money damages again committed upon the then- JEFFREY EPSTEIN, for acts of sexual abuse and prostitution minor, C.M.A. EIN for separate 2. Plaintiff has plead thirty separate counts against EPST tiff pursuant to 18 U.S.C. incidences of abuse committed by EPSTEIN against Plain injuries", creates a private §2255. 18 U.S.C. §2255, entitled °Civil remedy for personal s of certain enumerated sex right of action for minor children who were the victim or for the amount of damages a offenses. 18 U.S.C. §2255 also creates a statutory flo also alleged a single count of victim can recover for a violation of same. Plaintiff has Sexual Battery against EPSTEIN. EIN a disagreement 3. There presently exists between the Plaintiff and EPST in 18 U.S.C. §2255 is recoverable as to whether the statutory damage floor established listed in 18 U.S.C. §2255, or for each commission of an enumerated sex offenses ced once, regardless of how many whether the statutory damage floor can only be enfor se against a minor victim. times a defendant perpetrates an enumerated sex offen the subject of 4. This disagreement between the parties is properly For Failure to State a Cause Defendants Motion to Dismiss First Amended Complaint ; Motion to Strike, and Supporting of Action, and Motion For More Definite Statement is currently pending before Memorandum of Law (Attached hereto as Exhibit "A") which this Court 4 EFTA01070453 Case 9:08-cv-80119-KAM Document 207 Entered on FLSD Docket 07/20/2009 Page 5 of 9 5. In the event that the Court rules that Plaintiff can recover the statutory damage floor established in 18 U.S.C. §2255 for each proven incident of abuse committed by EPSTEIN upon her, Plaintiff intends to rely exclusively on the statutory damages, rather than those damages which are available at common law. (See Plaintiff, C.M.A.'s Conditional Notice of Intent to Exclusively Rely on Statutory Damages Provided by 18 U.S.C. §2255 attached hereto as Exhibit "B"). If however, the Court rules that the statutory floor applies only one time, regardless of the number of times EPSTEIN committed an enumerated sexual offense against her, Plaintiff will be pursuing all damages available to her at both common law and by statute. 6. Given Plaintiffs intent to rely exclusively on the statutory damages available to her under 18 U.S.C. §2255 as outline above, Plaintiff will not be presenting any evidence of the extent of her physical, emotional, or pecuniary injuries, beyond evidence that she was the victim of sexual contact to which she was legally incapable of consenting by virtue of her age (including, pain and suffering, emotional distress, psychological trauma, mental anguish, humiliation, embarrassment, loss of self-esteem, loss of dignity, invasion of her privacy, and loss of the capacity to enjoy life). Accordingly, any testimony and/or discovery regarding those types of damages would not be relevant to any material issue pending in this case. 7. Presently pending before the Court is Defendant EPSTEIN's Motion to Compel Plaintiff C.M.A. to Respond to Defendant's First Request to Produce and Answer Defendant's First Set of Interrogatories, and to Overrule Objections, and For an Award of Defendants Reasonable Expenses (Attached hereto as Exhibit "C"). 5 EFTA01070454 Case 9:08-cv-80119-KAM Document 207 Entered on FLSD Docket 07/20/2009 Page 6 of 9 EPSTEIN is seeking from Plaintiff the production of certain treatment records of hers from the Parent-Child Center, Inc., Dr. Serge Thys, a psychiatrist, Dominique Hyppolite/School District of Palm Beach County, Good Samaritan Hospital, St. Mary's Hospital, Florida Atlantic University and Gloria C. Hakkarainen, M.D. 8. None of the treatment records from the Parent-Child Center, Inc., Dr. Serge Thys, Dominique Hyppolite/School District of Palm Beach County, Good Samaritan Hospital, St. Mary's Hospital, Florida Atlantic University and Gloria C. Hakkarainen, M.D. will have any relevance whatsoever in the event that Plaintiff pursues only those statutory damages available to her under 18 U.S.C. §2255. To the contrary, the production of these confidential and private treatment records would only serve to further humiliate, embarrass, and victimize C.M.A. 9. Furthermore, C.M.A.'s treatment records from the Parent-Child Center, Inc., Dr. Serge Thys, Dominique Hyppolite/School District of Palm Beach County, Good Samaritan Hospital, St. Mary's Hospital, Florida Atlantic University and Gloria C. Hakkarainen, M.D. are protected by the psychotherapist-patient privilege pursuant to the Supreme Court's decision in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923 (1996)("All agree that a psychotherapist privilege covers confidential communications made to licensed psychiatrists and psychologists. We have no hesitation in concluding in this case that the federal privilege should also extend to confidential communications made to licensed social workers in the course of psychotherapy.") Ordinarily, a plaintiff does not place her mental condition in controversy merely by requesting damages for mental anguish or "garden variety' emotional distress. In order to place a party's mental 6 EFTA01070455 Case 9:08-cv-80119-KAM Document 207 Entered on FLSD Docket 07/20/2009 Page 7 of 9 condition in controversy the party must allege a specific mental or psychiatric disorder or intend to offer expert testimony to support their claim of emotional distress. Turner v Imperial Stores, 161 F.R.D. 89 (S.D.Cal. 1995). The evidence sought is also protected under the substantive privacy rights recognized in Florida Statute §§90.503 and 90.5035. 10. Accordingly, Plaintiff respectfully moves for the entry of a protective order pursuant to Fed. R. Civ. Pro. 26(c) regarding Plaintiffs treatment records from the Parent-Child Center, Inc., Dr. Serge Thys, Dominique Hyppolite/School District of Palm Beach County, Good Samaritan Hospital, St. Mary's Hospital, Florida Atlantic University and Gloria C. Hakkarainen, M.D. More particularly, Plaintiff requests the entry of an order precluding the discovery of those records until such time as the Court rules on the issue regarding whether the statutory damage floor as contained in 18 U.S.C. §2255 applies to each proven commission of an enumerated sexual offense by EPSTEIN against CMA. Should the Court rule that 18 U.S.C. §2255 provides a per incident damage floor, the treatment records would have absolutely no relevance whatsoever. In the event that the Court rules that the damage floor applies only once, the parties can then further brief the Court as to whether C.M.A has placed her mental condition In controversy" such that it operates as a waiver of the psychotherapist-patient privilege. WHEREFORE, Plaintiff, C.M.A., respectfully requests that this Court enter a protective order preventing the discovery of Plaintiff's treatment records from the Parent-Child Center, Inc., Dr. Serge Thys, Dominique Hyppolite/School District of Palm Beach County, Good Samaritan Hospital, St. Mary's Hospital, Florida Atlantic University 7 EFTA01070456 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 1 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 1 of 21 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80811-MARRAIJOHNSON C.M. Plaintiff, v. Y EPSTEIN and fill Defendants, DEFENDANT JEFFREY EPSTEIN'S MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION, AND MOTION FOR MORE DEFINITE STATEMENT: MOTION TO STRIKE, AND SUPPORTING MEMORANDUM OF LAW Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and through his undersigned counsel, moves to dismiss Count I through XXXI of Plaintiff's First Amended Complaint for failure to state a cause of action, and for more definite statement, or to strike, as specified herein. Rule 12(b)(6), (e) and (f), Fed.R.Civ.P. (2008); Local Gen. Rule 7.1 (S.D. Ma. 2008). In support of dismissal, Defendant states: The First Amended Complaint attempts to allege 32 counts. Counts I through XXX are purportedly brought pursuant to 18 U.S.C. §2255 - Civil Remedies for Personal Injuries; Count XXXI is entitled °Sexual Battery," and Count XXXII is entitled "Conspiracy to Commit Tortlous Assault only against Defendant, ." Under the heading "Factual Allegations" of the First Amended Complaint, Plaintiff also references numerous federal and state criminal statutes, but fails to allege whether or not she is attempting to assert claims based on these statutes. (¶15, 1st Am. Comp.). EFTA01070457 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 2 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 2 of 21 C.M.A. v. Epstein, et al. Page 2 Dismissal is required on the following grounds: (1) A review of the complaint allegations establishes that Plaintiff has failed to state the 30 causes of action under 18 U.S.C.A. 2255. As discussed more fully below herein, this statute does not allow for the Plaintiff to allege 30 separate causes of action; rather, the statute allows for the Plaintiff to attempt to assert one claim. In addition, Plaintiff has failed to allege a violation of the requisite predicate act as identified in 18 U.S.C. §2255 in order to state a cause of action. Thus, Counts I through )CO( against EPSTEIN are required to be dismissed. Rule 12(b)(6), Fla.R.Civ.P. (2) Count XXXI — Sexual Battery is also required to be dismissed for failure to state a cause of action as Plaintiff has failed to allege the requisite elements of such claim. The count fails to sufficiently allege whether it is being brought pursuant to common or statutory law. Further, in Count XXXI, Plaintiff reincorporates in their entirety Counts I through XXX; such pleading is improper and requires dismissal under the applicable Federal Rules of Civil Procedure. Supporting Memorandum of Law I. Motion To Dismiss Standard As established by the Supreme Court in Bell Atlantic Corp, V. Twombly 127 S.Ct. 1955 (2007), a motion to dismiss should be granted if the plaintiff does not plead "enough facts to state a claim to relief that is plausible on its face' Id, at 1974. Although the complaint need not provide detailed factual allegations, the basis for relief in the complaint must state "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id, at 1965. Further, "If'actual allegations must be enough to raise a right to relief above the speculative level ... on the EFTA01070458 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 3 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 3 of 21 C.M.A. v. Epstein, et al. Page 3 assumption that all the allegations in the complaint are true (even if doubtful in fact)' Id. On a motion to dismiss, the well pleaded allegations of plaintiffs complaint are taken as true and construed in the light most favorable to the plaintiff. M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153. 1156 (11th Cir.2006). Significantly, the Supreme Court in Bell Atlantic Corp. V. Twombly abrogated the often cited observation that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Id, (abrogating and quoting Conley v. Gibson. 355 U,S. 41, 45-46, 78 S.Ct. 99, 102. 2 L.Ed.2d 80 (1957)). The Supreme Court rejected the notion that "a wholly conclusory statement of claim [can] survive a motion to dismiss whenever the pleadings le[ave] open the possibility that a plaintiff might later establish some 'set of [undisclosed] facts' to support recovery." Id. As explained by the Supreme Court in Bell Atlantic Corp., supra at 1664-65: While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid.. Sanivan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247. 251 (C.A.7 1994), a plaintiffs obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain. 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (19861 (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller. Federal Practice and Procedure & 1216, pp. 235-236 (3d ed.2004) (hereinafter Wright & Miller) ("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A.. 534 U.S. 506, 508, n. 1, 122 S.Ct. 992. 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327. 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (" Rule 12(b)(61 does not countenance ... dismissals based on a judge's disbelief of a complaint's EFTA01070459 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 4 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 4 of 21 C.M.A. v. Epstein, et al. Page 4 factual allegations"); Scheuer v. Rhodes. 416 U.S. 232, 236. 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely"). In discussing Twomblv, the Eleventh Circuit in Walls v. Fla. International Univ. 495 F.3d 1289, 1295 (11th Cir. 2007), noted - "The Supreme Court's most recent formulation of the pleading specificity standard is that 'stating such a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element." In order to sufficiently allege the claim, the complaint is required to identify "facts that are suggestive enough to render [the element] plausible." Watts. 495 F.3d at 1296 (quoting Twomblv, 127 S.Ct. at 1965). II. Standard for More Definite Statement, Pleading, & Motion to Strike Pursuant to Rule 12(e), a party may move for more definite statement of a pleading to which a responsive pleading is allowed where the pleading "is so vague or ambiguous that the party cannot reasonably frame a response! The motion is required of to point out the defects and the desired details. Id. As to the general rules and form pleading, Rules 8 and 10, a claim for relief must contain "a short plain statement of the claim showing that the pleader is entitled to relief," Rule 8(a)(3); and may contain (3). alternative claims within a count or as many separate claims. Rule 10(d)(2) and an Pursuant to Rule 12(f) - Motion to Strike, "the court may strike from a pleading Insufficient defense or any redundant, immaterial, impertinent, or scandalous matter! III. Counts I through XXX, 18 U.S.C. 42255, are required to be dismissed. on behalf of a minor A. 18 U.S.C. 42255 creates a single civil remedy or cause of action a "per violation" basis. plaintiff against a defendant The civil remedy afforded is not on EFTA01070460 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 5 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 5 of 21 C.M.A. v. Epstein, et al. Page 5 Contrary to Plaintiffs attempted assertion of 30 separate counts pursuant to 18 U.S.C.A. §2255 - Civil Remedy for Personal Injunes, this statute creates a single federal cause of action or "civil remedy" for a minor victim of sexual, abuse, molestation and exploitation. Under the plain meaning of the statutory text, §2255 does not create separate causes of action on behalf of a minor against a defendant on a "per violation" basis. No where in the statutory text is there any reference to the civil remedy afforded by this statute as being on a "per violation" basis. 18 U.S.C. 2255(a) creates a civil remedy for "a minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation ... ." See Smith v. Husband, 428 F.Supp.2d 432 (E.D. Va. 2006); Smith v. Husband, 376 F.Supp.2d 603 (E.D. Va. 2006)• Doe v. Liberatore 478 F.Supp.2d 742, 754 (M.D. Pa. 2007); and the recent cases in front of this court on Defendant's Motions to Dismiss and For More Definite Statement — Doe No. 2 v. Epstein, 2009 WL 383332 (S.D. Fla. Feb. 12, 2009); Doe No. 3 v. Epstein 2009 WL 383330 (S.D. Fla. Feb. 12, 2009) Doe No. 4 v. Epstein, 2009 WL 383286 (S.D. Fla. Feb. 12, 2009); and Doe No. 5 v. Epstein, 2009 WL 383383 (S.D. Fla. Feb. 12, 2009). There is no reported case supporting Plaintiffs tortured and nonsensical interpretation of §2255. In all of these cases (cited above), each of the Plaintiffs brought a single count or cause of action attempting to allege numerous violations of the "predicate acts" specifically identified in §2255. "18 U.S.C. §2255 gives victims of sexual conduct who are minors a private right of action." Martinez v. White 492 EFTA01070461 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 6 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 6 of 21 C.M.A. v. Epstein, et at Page 6 F.Supp.2d 1186, 1188 (N.D. Cal. 2007), (emphasis added). 18 U.S.C.A. §2255 "merely provides a cause ot action tor damages in •any appropriate united btates uistrict Court." Id, at 1189. See also Tilton v. Playboy Entertainment Group, Inc., 554 F.3d 1371 (11th Cir. Jan. 15, 2009)(District Court granted plaintiff "the minimum 'actual damages' prescribed by §2255(a)," wherein plaintiff alleged that defendants had violated three of the statutory predicate acts). In improperly attempting to bring 30 separate counts pursuant to §2255, Plaintiffs complaint alleges In part that "beginning In approximately late May or early June of 2002, and continuing until approximately August of 2003, the Defendant coerced and enticed the impressionable, vulnerable, and economically deprived then minor Plaintiff to commit various acts of sexual misconduct. These acts occurred, on average, one to three times per week from late may or early June of 2002 until August 2003. At a bare minimum these acts occurred twice a month from June 2002 until August of 2003? Am. Complaint, ¶13. Plaintiff then claims the identical damages In each of the 30 §2255 counts. See ¶¶25, 31, 37, 43, 49, 55, 61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, 133, 139, 145, 151, 157, 163, 169, 175, 181, 187, 193, and 199. As well, in Count XXXI, entitled °Sexual Battery," Plaintiff claims the identical "actual damages" in that she realleges and Incorporates each and every of the 199 allegations In the 30 prior counts. It is well settled that in interpreting a statute, the court's inquiry begins with the plain and unambiguous language of the statutory text. CBS. Inc. v. Prime Time 24 Venture 245 F.3d 1217 (11th Cir. 2001); U.S. v. Castroneves, 2009 WL 528251, *3 (S.D. Fla. 2009), citing Reeves v, Astrue 526 F.3d 732, 734 (11th Cir. 2008); and Smith EFTA01070462 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 7 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 7 of 21 C.M.A. v. Epstein, et al. Page 7 v. Husband, 376 F.Supp.2d at 610 ("When interpreting a statute, [a court's] inquiry begins with the text."). "The Court must first look to the plain meaning of the words, and scrutinize the statute's 'language, structure, and purpose.'" Id. In addition, in construing a statute, a court is to presume that the legislature said what it means and means what it said, and not add language or give some absurd or strained interpretation. As stated in CBS. Inc. supra at 1228 — 'Those who ask courts to give effect to perceived legislative Intent by interpreting statutory language contrary to its plain and unambiguous meaning are in effect asking courts to alter that language, and '[c]ourts have no authority to alter statutory language.... We cannot add to the terms of [the] provision what Congress left out.' Merrill, 120 F.3d at 1187." See also Dodd v. U.S. 125 S.Ct. 2478 (2005); 73 Am.Jur.2d Statutes §124. Title 18 of the U.S.C. is entitled °Crimes and Criminal Procedure." §2255 is contained in "Part I. Crimes, Chap. 110. Sexual Exploitation and Other Abuse of Children." 18 U.S.C. §2255 (2003), is entitled Civil remedy for personal injuries, and provides: (a) Any minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal Injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit, Including a reasonable attorney's fee. Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than $50,000 in value. (b) Any action commenced under this section shall be barred unless the complaint Is filed within six years after the right of action first accrues or In the case of a person under a legal disability, not later than three years after the disability. Reading the entire statute in context, no where is there any language indicating that a minor plaintiff has a private right of action against a defendant "per violation." EFTA01070463 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 8 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 8 of 21 C.M.A. v. Epstein, et al. Page 8 Under the statutory rules of construction, had the legislature intended to give a plaintiff multiple causes of action against a defendant on a per violation basis, the statute would have Included such language. Had Congress wanted to create such a remedy as Plaintiff attempts to bring, it could have easily included language of "per violation" after the presumptive damages amount in subsection (a). By its own terms, the statute provides for the recovery of "actual damages the minor sustains and the cost of the suit, including attorney's fees." There is absolutely no language that allows for a plaintiff to multiply the specified or presumptive damages recoverable on a "per violation" basis. The Plaintiffs position on §2255 puts a strained interpretation with an absurd result. The absurdity of Plaintiffs position is further evidenced by Count XXXI — "Sexual Battery" where Plaintiff reincorporates each of the 30 counts and seeks the identical "actual damages." in Martinez v. White, supra, the defendants sought to dismiss plaintiffs' 18 U.S.C. §2255 action based on forum non conveniens. The Northern District of California Court, relying on the rules of statutory construction, rejected plaintiffs' argument that Congress had intended to abrogate the forum non conveniens doctrine in a §2255 action; the District Court noted that the statute does not contain a mandatory venue provision. Had Congress wanted to get rid of the forum non-conveniens doctrine, it would have said so In the statute. Also, in Smith v. Husband, 428 F.Supp. 432; and 376 F.Supp.2d 603, the plaintiff invoked "the accompanying civil remedy for these criminal violations, stating that she has sustained and continues to sustain physical and mental damages, humiliation, and embarrassment as a result of Defendant's criminal acts." In other words, she EFTA01070464 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 9 of 21 Case 9:08-cv-B0811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 9 of 21 C.M.A. v. Epstein, et al. Page 9 brought a single cause of action, based on allegations of multiple violations of the §2255 predicate acts. Furthermore, the court refused to add a venue interpretation that simply was not written into the statutory text. See other §2255 cases cited herein. For an example of a statute wherein the legislature included the language "for each violation" in assessing a "civil penalty," see 18 U.S.C. §216, entitled "Penalties and injunctions," of Chapter 11 — "Bribery, Graft, and Conflict of Interests," also contained In Title 18 — "Crimes and Criminal Procedure." Subsection (b) of §216 gives the United States Attorney General the power to bring a "civil action ... against any person who engages In conduct constituting an offense under' specified sections of the bribery, graft, and conflicts of interest statutes. The statute further provides in relevant part that "upon proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty of not more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, which ever amount is greater." As noted, 18 U.S.C. §2255 does not include such language. Accordingly, Plaintiffs multiple counts brought pursuant to §2255 are required to be dismissed for failure to state multiple causes of action. B. Also requiring dismissal Plaintiff has failed to sufficiently allege the requisite §2255 predicate acts. Also requiring dismissal of Plaintiffs purported §2255 claim(s) is Plaintiff's failure to sufficiently allege any violation of a requisite predicate act as specifically identified in subsection (a) of the statute quoted above. Relevant to Plaintiffs complaint, 18 U.S.C. 2255(a) creates a civil remedy for "a minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title EFTA01070465 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 10 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 10 of 21 C.M.A. v. Epstein, et al. Page 10 and who suffers personal injury as a result of such violation ... ." See cases cited above herein. Plaintiff has failed to plead any factual allegations whatsoever pertaining to violations of the specified "predicate acts." In paragraph 15, Plaintiff makes reference by citation only to the following federal statutes — 4118 U.S.C. §§2241, 2242, 2243, 2421, and 2423: See endnote following the Certificate of Service herein for the complete statutory text.' First, Plaintiff's reliance on 18 U.S.C. §2241 in its entirety as a predicate act is improper, it is a violation of subsection §2241(c) that is a designated predicate act. A reading of the text of the other referenced federal statutes shows that no where in Plaintiff's Amended Complaint are there any allegations setting forth the requisite elements of the cited predicate act. Further, any attempted reliance by Plaintiff on other federal or state statutes not specifically identified in 18 U.S.C. §2255 is improper and fails to state a cause of action. See ¶15 of Am. Complaint wherein Plaintiff references by citation additional Florida State statutes and thereafter incorporates such reference into her §2255 claim(s). See Smith v. Husband, 376 F.Supp.2d, and 428 Supp.2d, supra, requiring allegations/evidence to establish predicate act under 18 U.S.C. §2255 in order to be afforded civil remedy. Plaintiff appears to be relying solely on an "agreement with the Federal Government' as a basis for imposing liability under 18 U.S.C. §2255. See ¶¶17, 18, and 19 of ist Am. Complaint. There is nothing in Plaintiffs allegations that would allow for a §2255 claim to go forward without specifying the statutory predicate act and factual allegations pertaining to a violation of the requisite predicate act(s). Accordingly, under EFTA01070466 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 11 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 11 of 21 C.M.A. v. Epstein, et al. Page 11 the standard of pleading as established in Twombly, supra, Plaintiff has failed to sufficiently allege the requisite elements of a §2255 claim, thus requinng dismissal; tor failure to state a cause of action. C. 18 U.S.C. 42255 does not allow for the recovery of punitive damages. Thus, Plaintiff's request for punitive damages under $2255 is required to be dismissed or stricken. In each of the improperly asserted Counts I through XXX, Plaintiff also seeks punitive damages. A plain reading of 18 U.S.C. §2255, quoted above herein, establishes that the statute does not allow for the recovery of punitive damages. Had Congress wanted to allow for such a recovery, It could have easily written such language into the damages provision of the statute. The legislative body chose not to write a punitive damages component into §2255 as it has done in other statutes affording civil remedies. In relevant part, §2255 reads - My minor who is a victim of a violation of section ... of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the a actual damages such minor sustains and the cost of the suit, including reasonable attorney's fee. Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than $50,000 in value? See discussion of rules of statutory construction in part III.A. herein. See subsection (f)(2) of 18 U.S.C. §2252A, entitled Certain activities relating to material constituting or containing child pornography, also contained in Chapter 110, Part I, Crimes, within which specific reference is made to 'compensatory and punitive damages" in setting forth the relief •.. which may be afforded to a plaintiff in bringing a civil action under §2252A(f). EFTA01070467 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 12 of 21 Document 47 Entered on FLSD Docket 03/12/2009 Page 12 of 21 Case 9:08-cv-80811-KAM C.M.A. v. Epstein, et al. Page 12 Accordingly, Plaintiffs claims for punitive damages are required to be dismissed with prejudice or stricken. D. In the alternative, pursuant to constitutional law principles of statutory interpretation, 18 U.S.0 62255 is required to be interpreted as creating a single "civil remedy" or cause of action on behalf of a minor plaintiff against a defendant. The "civil remedy" afforded is not on a "per violation" basis. As set forth above, it is Defendant's position that the text of 18 U.S.C. §2255 does not allow a Plaintiff, such as C.M.A., to pursue the civil remedy and the damages afforded under the statute on a °per violation" basis. See part 111A. above. In the alternative, simply for the sake of argument, if one were to assume that the language of §2255 were vague or ambiguous, under the constitutional based protections of due process, judicial restraint, and the rule of lenity applied in construing a statute, Defendant's position as to the meaning of the statute would prevail over Plaintiffs view. See United States v. Santos, 128 S.Ct. 2020, 2025 (2008). As summarized by the United States Supreme Court in Santos, supra, at 2025: ... The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. See United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917); McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931); United States v. Bass, 404 U.S. 336, 347-349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of Inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress's stead. ... In Santos, the Court was faced with the interpretation of the term "proceeds" in the federal money laundering statute, 18 U.S.C. §1956. "The federal money-laundering EFTA01070468 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 13 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 13 of 21 C.M.A. v. Epstein, et al. Page 13 statute prohibits a number of activities involving criminal 'proceeds." Id, at 2023. Noting that the term "proceeds" was not defined in the statute, the Supreme Court stated the well settled principle that 'when a term is undefined, we give it its ordinary meaning." Id at 2024. Under the ordinary meaning principle, the government's position was that proceeds meant "receipts," while the defendant's position was that proceeds meant °profits." The Supreme Court recognized that under either of the proffered "ordinary meanings," the provisions of the federal money-laundering statute were still coherent, not redundant, and the statute was not rendered "utterly absurd." Under such a situation, citing to a long line of cases and the established rule of lenity, "the tie must go to the defendant." jd, at 2025. See portion of Court's opinion quoted above. "Because the 'profits' definition of 'proceeds' is always more defendant friendly that the 'receipts' definition, the rule of lenity dictates that it should be adopted." Id. Plaintiffs position would subject Defendant EPSTEIN to a punishment that is not clearly prescribed — an unwritten multiplier of the "actual damages" or the presumptive damages. The rule of lenity requires that Defendant's interpretation of the remedy afforded under §2255 be adopted. In addition, under the Due Process Clause's basic principle of fair warning - ... a criminal statute must give fair warning of the conduct that it makes a crime ... . As was said in United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, The constitutional requirement of definiteness is violated by a criminal statute that falls to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed' EFTA01070469 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 14 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 14 of 21 C.M.A. v. Epstein, et al. Page 14 Thus we have struck down a [state] criminal statute under the Due Process Clause where it was not 'sufficiently explicit to inform those who are subject to tt what du on their part will en er n liable to its 'lend b. Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. We have recognized in such cases that 'a statute which either forbids or requires the doing of an act in terms so vague that men of common Intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law,' ibid., and that 'No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888. Thus, applying these well-entrenched constitutional principles of statutory interpretation and application, Plaintiffs 30 separate counts brought under 18 U.S.C. §2255 are required to be dismissed. IV. Count XXXI — "Sexual Battery" Is required to be dismissed for failure to state a cause of action. In the alternative, Plaintiff should be required to more definite►y state whether she is attempting to allege a claim under Florida common or statutory law, or some federal law, and further allege the required elements and factual allegations. In Count XXXI, although entitled "Sexual Battery," Plaintiff improperly realleges and incorporates each and every allegation and each and every count (30) which she previously attempted to allege, resulting in a count that is 204 paragraphs long and Includes reference to Federal and Florida statutory law, while also including language sounding in common law. The count Is such a hodgepodge of legal allegations that Plaintiff fails to state a legally recognizable or viable cause of action. In ¶15, Plaintiff alleges that 'the acts referenced in paragraphs 9 through 14, committed by Defendant against the then minor Plaintiff, C.M.A., were committed in violation of numerous criminal State and Federal statutes ... , including but not limited to, those crimes designated in 18 U.S.C. §§2241, 2242, 2243, 2421, and 2423, criminal EFTA01070470 Case 9:08-cv-80119-KAM Document 207-2 Entered on FLSD Docket 07/20/2009 Page 15 of 21 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 15 of 21 C.M.A. v. Epstein, et al. Page 15 offenses outlined in Chapter 800 of the Federal Codes, as well as those designated in UlIUd Plaintiff also alleges that Defendants "tortious commission of sexual battery upon C.M.A. were (sic) done willfully and maliciously.° Supporting Defendant's position that Plaintiff has failed to state a cause of action in Count XXXI, 18 U.S.C. §§2241(c), not §2241 in its entirety, as discussed above, is one of the predicate acts, along with 2242, 2243, 2421, and 2423, designated in the federal civil remedy statute — 18 U.S.C. §2255. Plaintiff attempted and failed to allege such