EFTA00201190.pdf

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-MARRA/JOHNSON C.M. A., Plaintiff, v. EPSTEIN and 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 Plaintiffs 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. Fla. 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 Tortious 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.). EFTA00201190 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 XXX 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, "Iflactual allegations must be enough to raise a right to relief above the speculative level ... on the EFTA00201191 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.. Sanjuan 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 (1986) (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 4 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 (198.9) (" Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's EFTA00201192 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 Twombly, the Eleventh Circuit in Watts 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 Twombly, 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 to point out the defects and the desired details. Id. As to the general rules and form of 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 alternative claims within a count or as many separate claims. Rule 10(d)(2) and (3). Pursuant to Rule 12(f) - Motion to Strike, "the court may strike from a pleading an 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. A. 18 U.S.C. §22S5 creates 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. EFTA00201193 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 Injuries, 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 Plaintiff's 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 EFTA00201194 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 al. Page 6 F.Supp.2d 1186, 1188 (N.D. Cal. 2007), (emphasis added). 18 U.S.C.A. §2255 "merely provides a cause of action for damages in 'any appropriate United States District 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 EFTA00201195 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.' Merritt, 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." EFTA00201196 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 EFTA00201197 Case 9:08-cv-80811-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 Plaintiff's purported §2255 claim(s) is Plaintiffs 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 EFTA00201198 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 — "18 U.S.C. §§2241, 2242, 2243, 2421, and 2423." See endnote following the Certificate of Service herein for the complete statutory text.' First, Plaintiffs 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 ad. 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 151 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 EFTA00201199 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 requiring dismissal; for failure to state a cause of action. C. 18 U.S.C. §2255 does not allow for the recovery of punitive damages. Thus, Plaintiffs request for punitive damages under 42255 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 - Any 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 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." See discussion of rules of statutory construction in part M.A. herein. See subsection (0(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). EFTA00201200 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 12 of 21 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.C. V255 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 III.A. 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 EFTA00201201 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." Id, 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 fails 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.' EFTA00201202 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 it what conduct on their part will render them liable to its penalties.' 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, Plaintiff's 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 definitely 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 EFTA00201203 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 Florida Statutes §796.03, §796.07, §796.045, §796.04, §39.01; and §827.04." In ¶203 Plaintiff also alleges that Defendant's "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 a claim in the previous counts. Defendant can find no criminal offenses in any "Chapter 800 of the Federal Codes" which give rise to a civil cause of action. The same is true for Plaintiffs reference to the Florida Statutes. Not one of the statutes referenced creates a private cause of action or affords a civil remedy on behalf of the alleged victim of the criminal offense.' (Except for Florida Statute §39.01, all of the statutes referenced by Plaintiff are contained Title XLVI. Crimes of the Florida Statutes). The referenced criminal statutes set forth acts subject to criminal prosecution and the criminal penalties therefor, if proven. See generally, Am. Home Assurance Co. v. Plaza Materials Corp. 908 So.2d 360, 374 (Fla. 2005)("not every statutory violation carries a civil remedy"); Miami Herald Pub. Co. v. Ferre 636 F.Supp. 970 (S.D. Fla. 1985)(violation of Florida's criminal extortion statute does not give rise to civil cause of Florida Statutes §§796.03 - Procuring person under age 18 for prostitution; 796.04 — Forcing, compelling, or coercing another to become a prostitute; 796.045 (which did not become effective until Oct. 1, 2004) - Sex trafficking; penalties; 796.07 — Prohibiting prostitution, etc.; evidence; penalties; definitions; and §39.01, entitled "Definitions," is contained in Title V — Judicial Branch, Chapter 39 - "Proceedings relating to Children." EFTA00201204 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 16 of 21 C.M.A. v. Epstein. et al. Page 16 action for damages): Mantooth v. Richards, 557 So.2d 646 (Fla. 4th DCA 1990), per curiae?, (Dismissal of plaintiffs civil complaint affirmed where parental kidnapping statutes concerned only criminal violations and did not create a civil remedy). As well, the Count XXXI allegations make absolutely no reference to any viable common law cause of action; Defendant should not be required to guess or speculate as to the nature of Plaintiffs cause of action. Even if Defendant were to speculate as to the supposed cause of action, these causes of action (common law or otherwise) have not been sufficiently alleged. On its face, in accordance with the pleading requirements annunciated in Twombly, supra, Count XXXI is completely lacking as to any common law elements or the underlying factual allegations to support each element, and thus, Count XXXI is required to be dismissed for failure to state a cause of action. In the alternative, Plaintiff should be required to more definitely state whether her claim is being brought pursuant to federal or Florida statutory law, specifically identify the statute it is being brought under, or whether her claim is being asserted under common law. Once Plaintiff identifies the nature of her claim, she is required to sufficiently allege in accordance with Twombly, the requisite elements of the identified claim, along with sufficient factual allegations supporting the elements. Conclusion Pursuant to applicable law, Counts I through XXXI of Plaintiffs First Amended Complaint are required to be dismissed for failure to state a cause of action. 18 U.S.C. does not allow for the Plaintiff C.M.A. to allege separate causes of action against EFTA00201205 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 17 of 21 C.M.A. v. Epstein, et al. Page 17 Defendant EPSTEIN, but rather allows Plaintiff to attempt to assert a single civil remedy if she can prove a violation of any of the statutory enumerated predicate acts. Further, Plaintiff has failed to sufficiently allege a requisite predicate act under §2255. In addition, §2255 does not allow for recovery of punitive damages. Count XXXI is also subject to dismissal with prejudice for failure to state a cause of action, as Plaintiff has failed to allege a legally viable or recognizable cause of action. WHEREFORE, Defendant requests that this Court grant his motion to dismiss Counts I through XXXI, or alternative motion for more definite statement, and motion to strike. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of recd A identified on the following Service List in the manner specified by CM/ECF on this day of March , 2009: Richard Horace Willits, Esq. Richard H Willits P A tom* Lake Worth, FL 33461 Counsel for Plaintiff C.M.A. Jack Alan Goldberger, Esq. Atterbury Goldberger & Weiss P.A. West Palm Beach, FL 33401-5012 ounse or a en an s Jeffrey Epstein and Sarah Kellen Jack Scarola, Esq. Jack P. Hill, Esq. Bruce Reinhart, Esq. Searcy Denney Scarola Barnhart & Bruce E. Reinhart. P.A. Shiolev, P A West Palm beach, FL 33401 vvest rain tseacn, FL ss4uy EFTA00201206 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 18 of 21 C.M.A. v. Epstein, et al. Page 18 WOW Respectfully su tted, MICHAEL J. PIKE, ESQ. Florida Bar #617296 BURMAN CRITTON, JR., ESQ. 4162 RITT • k ■ • s llen COLEMAN (Counsel for Defendant Jeffrey Epstein) ' ENDNOTE: U.S.C.A. - Title 18. Crimes and Criminal Procedure, Chapter 109A. Sexual Abuse §2241. Aggravated Sexual Abuse. (c) With children.--Whoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years, or in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or knowingly engages in a sexual act under the circumstances described in subsections (a) and (b) with another person who has attained the age of 12 years but has not EFTA00201207 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 19 of 21 C.M.A. v. Epstein, et al. Page 19 attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to do so, shall be fined under this title and imprisoned for not less than 30 years or for life. If the defendant has previously been convicted of another Federal offense under this subsection, or of a State offense that would have been an offense under either such provision had the offense occurred in a Federal prison, unless the death penalty is imposed, the defendant shall be sentenced to life in prison. § 2242. Sexual abuse Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly-- (1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or (2) engages in a sexual act with another person if that other person is-- (A) incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act; or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life. § 2243. Sexual abuse of a minor or ward (a) Of a minor.--Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who-- (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. (b) Of a ward.--Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who is-- EFTA00201208 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 20 of 21 C.M.A. v. Epstein, et al. Page 20 (1) in official detention; and (2) under the custodial, supervisory, or disciplinary authority of the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. (c) Defenses.--(1) In a prosecution under subsection (a) of this section, it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the other person had attained the age of 16 years. (2) In a prosecution under this section, it is a defense, which the defendant must establish by a preponderance of the evidence, that the persons engaging in the sexual act were at that time married to each other. (d) State of mind proof requirement--In a prosecution under subsection (a) of this section, the Government need not prove that the defendant knew-- (1) the age of the other person engaging in the sexual act; or (2) that the requisite age difference existed between the persons so engaging. Chapter 117 Transportation for Illegal Sexual Activity and Related Crimes § 2421. Transportation generally Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both. § 2423. Transportation of minors (a) Transportation with intent to engage in criminal sexual activity.--A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life. (b) Travel with intent to engage in illicit sexual conduct--A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. EFTA00201209 Case 9:08-cv-80811-KAM Document 47 Entered on FLSD Docket 03/12/2009 Page 21 of 21 C.M.A. v. Epstein, et al. Page 21 (c) Engaging in illicit sexual conduct in foreign places.--Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. (d) Ancillary offenses.--Whoever, for the purpose of commercial advantage or private financial gain, arranges, induces, procures, or facilitates the travel of a person knowing that such a person is traveling in interstate commerce or foreign commerce for the purpose of engaging in illicit sexual conduct shall be fined under this title, imprisoned not more than 30 years, or both. (e) Attempt and conspiracy.--Whoever attempts or conspires to violate subsection (a), (b), (c), or (d) shall be punishable in the same manner as a completed violation of that subsection. (f) Definition.--As used in this section, the term "illicit sexual conduct" means (1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age. (g) Defense.--In a prosecution under this section based on illicit sexual conduct as defined in subsection (f)(2), it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the person with whom the defendant engaged in the commercial sex act had attained the age of 18 years. EFTA00201210