EFTA00805492.pdf

Filing # 68747930 E-Filed 03/02/2018 05:12:19 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff, vs. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and L.M., individually, Defendants. SUPPLEMENT TO MOTION FOR SEPARATE TRIALS OR. IN THE ALTERNATIVE TO ADJUST THE ORDER OF PROOF Counter-Plaintiff Bradley J. Edwards, pursuant to Florida Rules of Civil Procedure 1.270 and 1.440, hereby files this Supplement to Motion for Separate Trials or, in the Alternative, to Adjust the Order of Proof, and as grounds thereof states as follows: Summary Epstein is attempting to try a damages-only claim regarding a clerk's default entered against Defendant Rothstein on January 21, 2010. As the Court will see, however, that clerk's default was entered against the Initial Complaint. Epstein has since amended his complaint twice and has abandoned every count pled against Rothstein in the Initial Complaint. Thus, in addition to the reasons set forth in Edwards' Motion to Separate Trials, the Court should sever Epstein's claim against Rothstein because the only pending claim against Rothstein is a Conspiracy to Commit Abuse of Process count contained in the Second Amended Pleading, to which no default has been entered and which has not been set for trial. EFTA00805492 Edwards adv. Epstein Case No. 502009CA040800XXXXMBAG Supplement to Motion for Separate Trials or, in the Alternative, to Adjust the Order of Proof Supplement I. Epstein filed his Initial Complaint against Defendant Rothstein on December 7, 2009, which pled the following counts against Rothstein: a. (1) Violation of § 772,101 — Florida Civil Remedies for Criminal Practices Act b. (2) Violation of § 895.01 — Florida's RICO Act c. (3) Abuse of Process d. (4) Fraud e. (5) Conspiracy to Commit Fraud 2. On January 21, 2010, a clerk's default was entered against Defendant Rothstein as to the Initial Complaint and the five counts listed above (see Exhibit A). 3. On April 12, 2011, Epstein filed an Amended Complaint against Defendant Rothstein. The Amended Complaint asserted a single count against Defendant Rothstein, Abuse of Process. The remaining counts against Rothstein in the Initial Complaint (Florida Civil Remedies for Criminal Practices Act, Florida's RICO Act, Fraud, and Conspiracy to Commit Fraud), were abandoned. 4. Pursuant to black-letter Florida law, the Amended Complaint against Rothstein superseded the Initial Complaint. See State Farm Fire & Cas. Co. v. Higgins 788 So. 2d 992, 995 (Fla. 4th DCA 2001), approved, 894 So. 2d 5 (Fla. 2004) ("An amended complaint supersedes an earlier pleading where it does not express an intention to save any portion of the original pleading.") (internal quotations omitted); accord Downtown Investments, Ltd. v. Segall, 551 So. 2d 561, 562 (Fla. 3d DCA 1989). Moreover, the Initial Complaint against Rothstein was not only superseded, but "cease!' to be a part of the record" in Epstein's case against him. Babb v. Lincoln Auto Finance Co.,133 So. 2d 566, 568 (Fla. 3d DCA 1966) (emphasis added). 2 EFTA00805493 Edwards adv. Epstein Case No. 502009CA040800XXXXMBAG Supplement to Motion for Separate Trials or, in the Alternative, to Adjust the Order of Proof 5. Thus, although a tenuous argument remained that the clerk's default applied to the Abuse of Process claim that was re-pled, the clerk's default as to the four abandoned counts in an inoperative pleading that was no longer part of the record was now a nullity. 6. On August 21, 2011, Epstein filed a Second Amended Complaint against Defendant Rothstein. In his Second Amended Complaint, which supersedes the Amended Complaint, Epstein abandoned his Abuse of Process claim against Rothstein and instead asserted a brand-new count: Conspiracy to Commit Abuse of Process. 7. Thus, Epstein had now abandoned every count pled in the Initial Complaint to which the clerk's default applied. The clerk's default was rendered a nullity. 8. No default has been entered against Rothstein as to the Second Amended Complaint, which is the operative pleading against that party, and the brand-new Conspiracy to Commit Abuse of Process count contained therein. 9. Moreover, even if Epstein were to proceed without a default as to liability, the Second Amended Complaint has not been noticed for trial. Pursuant to Rule 1.440, the Court may not set Epstein's Conspiracy to Commit Abuse of Process case for trial against Rothstein without first entering an order fixing the date for that trial, which "shall be set not less than 30 days from the service of the notice for trial." 10. Given that the damages being sought by Epstein against Rothstein for Conspiracy to Commit Abuse of Process are unliquidated, it would be reversible error for the Court to permit Epstein to try his case against Rothstein on March 13'h. Wells Fargo Bank, Nat. Ass'n v. Sawh, 194 So. 3d 475, 481 (Fla. 3d DCA 2016) ([T]he setting of unliquidated damages without the required notice and without proof is regarded as fundamental error."). 3 EFTA00805494 Edwards adv. Epstein Case No. 502009CA0408003OOOCMBAG Supplement to Motion for Separate Trials or, in the Alternative, to Adjust the Order of Proof Conclusion Thus, in addition to the reasons set forth in Edwards' Motion to Separate Trials, et al, the Court should grant that Motion for the reasons stated above. I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve to all Counsel on the attached list, this 2nd day of March, 2018. /s/ David P. Vitale Tr. JACK SCAROLA Florida Bar No.: Minn DAVID P. VITALE JR. Florida Bar No.: 115179 Attorne E-Mails: and Primary E-Mail: Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Phone: Fax: Attorneys for Bradley J. Edwards 4 EFTA00805495 Edwards adv. Epstein Case No. 502009CA040800XXXXMBAG Supplement to Motion for Separate Trials or, in the Alternative, to Adjust the Order of Proof COUNSEL LIST Scott J. Link, Esq. Link & Rockenbach, P.A. 1555 Palm Beach Lakes Boulevard Suite 301 West P 33401 Pho Fax: Attorneys for Jeffrey Epstein Jack A. Goldberger, Esquire Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue S, Suite 1400 West Palm Beach, FL 33401 Phone: Fax: Attorneys for Jeffrey Epstein Nichole J. Segal, Esquire • Burlington & Rockenbach, P.A. 444 W Railroad Avenue, Suite 350 West Palm Beach, FL 33401 Phone: Attorneys for Bradley J. Edwards Bradley J. Edwards, Esquire 425 N Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Phone: Fax: 5 EFTA00805496  IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case Number: 502009CA040800XXXXMB Division: AG JEFFREY EPSTEIN Plaintiff(s), -vs- SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS individually and L.M. individually 0 ti C:.L :o .. 2-11 ..... ..... .> :V ,-.., = M C- Xs. M ....—.. Defendant(s), :6' IN.7 rmes. 1 . T C7 ,-, ac ri V.: 03a — DEFAULTA) 1., 9 •-",•-,- 0 . ..., 1,,, o -I.• — ".. -.'3` A default is entered in the above styled cause agaigst: COTT ROTHSTEIN, individually for failure to serve a pleading at the time require 'y lgify e.z., DONE AND ORDERED at the Clerk' ce, City of West Palm Beach, this 21 day of JANUARY, 2010. Sharon R. Bock Clerk & Comptroller By wit kA,4 raid (.Q.)15 < KIMBERLY.thA DLEY Deputy Clerk Copies furnishe s r BURMAN, CRITTON, LVIITIER & COLEMAN LLP 303 BANYAN BLVD., STE 400, WEST PALM BEACH, FL 33401-4349 SCOTT ROTHSTEIN, INDIVIDUALLY C/O FOC, MIAMI FEDERAL DETENTION CENTER, 33 NE 4Th STREET, MIAMI, FL 33132 GARY FARMER, ESQ , 425 N. ANDREWS AVENUE, SUITE 2, FT. LAUDERDALE, FL 33301 JOHN SCAROLA , ESQ, 2139 PALM BEACH LAKES BLVD WEST PALM BEACH, FL 33409 PADULA & GRANT, PLLC 365 E. PALMETTO PARK ROAD, BOCA RATON, FL 33432-5015 41, EXHIBIT EFTA00805497