EFTA00584338.pdf

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 2009 CA 040800XXXXMBAG VS. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, Defendants. PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S MOTION FOR SUMMARY JUDGMENT ON DEFENDANT/COUNTER-PLAINTIFF BRADLEY EDWARDS' COUNTERCLAIM AND SUPPORTING MEMORANDUM OF LAW Plaintiff/Counter-Defendant, JEFFREY EPSTEIN ("Epstein"), by and through his undersigned counsel and pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, files this Motion for Summary Judgment on Defendant/Counter-Plaintiff Bradley Edwards' Counterclaim, and states as follows : I. SUMMARY OF ARGUMENT Summary judgment should be entered in favor of Epstein on Edwards' single-count Counterclaim for abuse of process because it is legally insufficient. Edwards' Counterclaim does not state an actionable claim for abuse of process against Epstein. It alleges only that Epstein's filing of his lawsuit against Edwards was improper, and does not allege any misuse of process by Epstein after Epstein filed his lawsuit against Edwards. As a matter of settled Florida law, "process" must occur subsequent to the filing of an action. Abuse of process, therefore, cannot based on the filing of an allegedly baseless complaint. In addition, Edwards' claim against Epstein is barred by the litigation privilege. Partial summary judgment should be entered in FOWLER WHITE BURNETT P.A. • ESPIRITO SANTO PLAZA, 1395 BRICKELL AVENUE, 14•• FLOOR. MIAMI, FLORIDA 33131 • (305) 789-9200 EFTA00584338 Epstein v. Rothstein, et al. CASE NO. 50 2009 CA 040800 XXXXMB AG Epstcin's Am MPO Prejclude O/C, etc. from Making Extrajudicial Statements, et al. favor of Epstein on Edwards' claim that he is entitled to recover damages for attorney's fees and damages for the time he has spent on this litigation. There is no legal basis for recovering such damages. II. STATEMENT OF THE CASE AND FACTS A. Allegations. On or about December 21, 2009, Edwards filed a single-count Counterclaim against Epstein for abuse of process, alleging inter alia that Edwards did not engage in any unethical or improper conduct (¶ 8); Epstein "filed the claims herein against EDWARDS. . .for the sole purpose of further attempting to intimidate EDWARDS . . . and others into abandoning or settling legitimate claims for less than ... reasonable value" (19); Epstein's Complaint has no factual support (¶10); and Epstein has "ulterior motives and purposes in exercising such illegal, improper and perverted use of process" including "put[ting] pressure on EDWARDS . . . by publishing what amounts to nothing more than a press release issued under the cloak of protection of the litigation privilege." (¶11)(Emphasis added). B. Undisputed Material Facts: I. Edwards does not allege that Epstein abused process after Epstein filed his Complaint. 2. There is no record evidence of abuse of process by Epstein after Epstein filed his Complaint against Edwards. 3. The record discloses that after Epstein filed his initial Complaint, he did not commit an improper act using process to achieve a collateral purpose. III. ARGUMENT A. LEGAL FRAMEWORK - 2 - FOWLER WHITE BURNETT P.A. • ESPIRITO SANTO PLAZA, 1395 BRICKELL AVENUE, 14Th FLOOR. MIAMI, FLORIDA 33131 • (305) 789-9200 EFTA00584339 Epstein v. Rothstein, et al. CASE NO. 50 2009 CA 040800 XXXXMB AG Epstein's Am MPO Prejclude O/C, etc. from Making Extrajudicial Statements, et al. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). Where a moving party has established the non- existence of such factual issues, the court must grant summary judgment, unless the nonmoving party comes forth with evidence to reestablish such an issue. See Connell v. Sledge , 306 So. 2d 194, 196 (Fla. 1st DCA 1975). A party opposing summary judgment cannot merely assert that a genuine issue of material fact exists, but instead must proffer evidence that demonstrates the existence of a genuine issue of material fact. See Slacker v. Abundio Inv. Co., 566 So. 2d 348, 349 (Fla. 3d DCA 1990). A complete failure of proof of an essential element necessarily renders all other facts offered by the non-moving party immaterial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). B. SUMMARY JUDGMENT SHOULD BE ENTERED IN FAVOR OF EPSTEIN ON EDWARDS' COUNTERCLAIM FOR ABUSE OF PROCESS BECAUSE EDWARDS' CLAIM IS LEGALLY INSUFFICIENT An abuse of process claim requires pleading and proof of the following three elements: 1) an illegal, improper or perverted use of process; 2) an ulterior motive or purpose in exercising the illegal, improper or perverted process; and 3) damage as a result of the conduct. See, e.g., S&I Invs. v. Payless Flea Mkt., 36 So. 3d 909, 917 (Fla. 4th DCA. 2010); Valdes v. GAB Robins North America, Inc., 924 So. 2d 862, 867 n. 2 (Fla. 3d DCA 2006); Della-Donna v. Nova Univ., Inc., 512 So. 2d 1051, 1055 (Fla. 4th DCA 1987). With regard to the first element of the tort of abuse of process, it is axiomatic that under Florida law "'the mere filing of a complaint and having process served is not enough to show - 3 - FOWLER WHITE BURNETT P.A. • ESPIRITO SANTO PLAZA, 1395 BRICKELL AVENUE, 14" FLOOR. MIAMI, FLORIDA 33131 • (305) 789-9200 EFTA00584340 Epstein v. Rothstein, et al. CASE NO. 50 2009 CA 040800 XXXXMB AG Epstein's Am MPO Prejclude O/C, etc. from Making Extrajudicial Statements, et al. abuse of process.' [Citation omitted] The plaintiff must prove improper use of process after it issues." S&I Invs., 36 So. 3d at 917(quoting Della-Donna v. Nova Univ., Inc., 512 So. 2d 1051, 1055-56 (Fla. 411' DCA 1987)). See also Valdes, 924 So. 2d at 867 ("Valdes' failure to allege any improper willful acts by the appellees during the course of the prior action requires dismissal of the abuse of process claim..."); Yoder v. Adriatico, 459 So. 2d 449, 450 (Fla. 5'h DCA 1984)("the tort of abuse of process is concerned with the improper use of process after it issues")(emphasis added); Marty v. Gresh, 501 So. 2d 87, 90 (Fla. 1st DCA 1987)"[A]buse of process requires an act constituting the misuse of process after it issues. The maliciousness or lack of foundation of the asserted cause of action itself is actually irrelevant to the tort of abuse of process."); Cazares v. Church of Scientology of Cal., Inc., 444 So. 2d 442, 444 (Fla. 5th DCA 1983)(holding that a cause of action for abuse of process would not lie where the Church alleged no act other than the wrongful filing of a lawsuit); Peckins v. Kaye, 443 So. 2d 1025, 1026 (Fla. 2d DCA 1986)(counterclaim allegedly causing undue expenditure of time and money did not constitute abuse of process); McMurray v. U-Haul Co., 425 So. 2d 1208, 1209 (Fla. 4'h DCA 1983)(same); Blue v. Weinstein, 381 So. 2d 308, 311 (Fla. 3d DCA 1980)("[N]o abuse of the process apart from the complaint is pled and the effort to do so amounts to nothing more than a thinly disguised malicious prosecution claim.") As explained in Della-Donna, 512 So. 2d at 1055, even the "filing of a lawsuit with the ulterior motive of harassment does not constitute abuse of process." Epstein, is entitled to summary judgment because there is no illegal or improper use of process by Epstein and none is even alleged. Edwards' Counterclaim is based solely on allegations that Epstein filed a groundless Complaint in order to harass Edwards. Edwards - 4 - FOWLER WHITE BURNETT P.A. • ESPIRITO SANTO PLAZA, 1395 BRICKELL AVENUE, 14" FLOOR. MIAMI, FLORIDA 33131 • (305) 789-9200 EFTA00584341 Epstein v. Rothstein, et al. CASE NO. 50 2009 CA 040800 XXXXMB AG Epstein's Am MPO Prejclude O/C, etc. from Making Extrajudicial Statements, et al. alleges that Epstein "filed the claims herein" to intimidate Edwards (19) and that the allegations in Epstein's Complaint lack factual support. (¶10). Given the fact that Florida law unquestionably bars an abuse of process claim based solely on the filing of an allegedly baseless suit, Edwards' Counterclaim fails as a matter of law and must be dismissed. See S & I Investments, 36 So. 2d at 918 (summary judgment granted in favor of defendant where abuse of process claim was based upon the filing of a complaint and subsequent amendments); Della- Donna, 512 So. 2d at 1055; McMurray v. U-Haul Co., 425 So. 2d 1208 (Fla. 4th DCA 1983)(counterclaim for abuse of process was properly dismissed with prejudice although plaintiff alleged that complaint was filed "for a multitude of improper purposes"). Johnson Law Group v. Elimadebt USA, LLC., 2010 U.S. Dist. LEXIS 51079 (S.D. Fla. May 24, 2010), is on all fours, squarely supporting summary judgment for Epstein on Edwards' Counterclaim. In Elimadebt the Plaintiffs alleged that Defendants had committed abuse of process by filing a prior Florida action "to gain leverage and an improper advantage in a business dispute" and that the prior action included baseless allegations in an attempt to harass plaintiffs. Id. at *8. Applying Florida law, the federal court rejected the abuse of process claim absent any allegations of any post-issuance acts constituting abuse of process: "Defendants' alleged filing of a baseless suit, even coupled with alleged knowledge of the complaint's eventual publication, is not an affirmative post-issuance abuse of process." Id. at *12. Nor is Epstein's filing of an allegedly baseless suit against Edwards actionable as an "affirmative post-issuance abuse of process." Id. . Summary judgment should also he entered for Epstein on the basis of the litigation privilege which provides legal imnnulith for acts occurring during the course of a legal FOWLER WHITE BURNETT P.A. • ESPIRITO SANTO PLAZA, 1395 BRICKELL AVENUE, 14Th FLOOR. MIAMI, FLORIDA 33131 • (305) 789-9200 EFTA00584342 Epstein v. Rothstein, et al. CASE NO. 50 2009 CA 040800 XXXXMB AG Epstcin's Am MPO Prejclude O/C, etc. from Making Extrajudicial Statements, et al. proceeding if the act "has some relation to the proceeding." Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). The litigation privilege bars Edwards' claim against Epstein because the filing of a complaint by Epstein has "some relation to the proceeding." Id. C. PARTIAL SUMMARY JUDGMENT SHOULD BE ENTERED FOR EPSTEIN ON THE ISSUE OF DAMAGES Partial summary judgment should be entered for Epstein on the ground that Edwards cannot recover attorney's fees or damages for "time diverted from his professional responsibilities." (Counterclaim, ¶12). "The principle is well established that entitlement to fees must be founded upon a provision in a contract, statute, rule, or special principle of law, such as that for the establishment of a fund." Martha A. Gottfried, Inc. v. Amster, 511 So. 2d 595, 600 (Fla. 4'h DCA 1987). There is no contract, statute or rule which permits Edwards to recover attorney's fees as damages, or damages for the time that he has allegedly spent defending the claim or prosecuting his Counterclaim. In addition, Edwards' may not recover attorney's fees under the "wrongful act" doctrine "Where the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney's fees upon appropriate proof, may be recovered as an element of damages." City of Tallahassee v. Blankenship & Lee, 736 So. 2d 29, 30 (Fla. 1s' DCA 1999)(quotation and citation omitted); It is equally settled that attorney's fees and litigation costs are not recoverable in litigation with the party who allegedly committed the wrongful act. See also Martha A. GotOied, Inc., 511 So. 2d - 6 - FOWLER WHITE BURNETT P.A. • ESPIRITO SANTO PLAZA, 1395 BRICKELL AVENUE, 14Th FLOOR. MIAMI, FLORIDA 33131 • (305) 789-9200 EFTA00584343 Epstein v. Rothstein, et al. CASE NO. 50 2009 CA 040800 XXXXMB AG Epstein's Am MPO Prejclude O/C, etc. from Making Extrajudicial Statements, et al. at 598-600; Elimadebt, 2010 U.S. Dist. LEXIS 51079, at *23-24. Epstein's allegedly wrongful conduct did not involve Edwards in litigation with others. : WHEREFORE, based upon the foregoing arguments and authorities, Plaintiff/Counter- Defendant, Jeffrey Epstein, respectfully requests that the Court grant his motion for summary judgment and dismiss Edwards' Counterclaim. Respectfully submitted, CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via e-mail and U.S. Mail this day of May, 2011 to: Jack Scarola, Esq. Searcy Denney Scarola Barnhart & Shipley, P.A 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409 Jack A. Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach, FL 33401-5012 Marc S. Nurik, Esq. Law Offices of Marc S. Nurik One E. Broward Blvd., Suite 700 Ft. Lauderdale, FL 33301 - 7 - FOWLER WHITE BURNER P.A. • ESPIRITO SANTO PLAZA, 1395 BRICKELL AVENUE, 14" FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 EFTA00584344 Epstein v. Rothstein, et al. CASE NO. 50 2009 CA 040800 XXXXMB AG Epstcin's Am MPO Prejclude O/C, etc. from Making Extrajudicial Statements, et al. By: - 8 - FOWLER WHITE BURNETT P.A. • ESPIRITO SANTO PLAZA, 1395 BRICKELL AVENUE, 14" FLOOR. MIAMI, FLORIDA 33131 • (305) 789-9200 EFTA00584345