EFTA00222873.pdf

Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 1 of 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE II Plaintiff, VS. JEFFREY EPSTEIN, and Defendants. ) CASE NO.: 09-80469-CIV-MARRA ) ) ) ) ) ) ) ) ) PLAINTIFF'S AMENDED' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT EPSTEIN'S MOTION TO DISMISS Plaintiff, JANE DOE II, through counsel, opposes Defendant's RICHARD EPSTEIN's Motion to Dismiss. Defendant's argument for a dismissal is premised on the following: 1) Plaintiff is not permitted to file a claim under Florida law in a State of Florida court and then file a federal claim in a federal court; 2) the remedies amendment to 18 U.S.C.§2255 are not retroactive based on the dates Defendant EPSTEIN is alleged to have violated the statute; 3) damages under §2255 cannot be obtained on a per incident basis, but must be lumped together into a single recovery despite multiple violations occurring in temporally distinct time frames, and therefore being different incidents; 4) Plaintiff has failed to state a cause of action under §2255 because she has failed to "allege facts constituting a predicate As discussed at the hearing this morning before the Court, Plaintiff in this case is withdrawing the contention raised in the original memorandum, that Defendant EPSTEIN may not contest this Court's jurisdiction based on the Non Prosecution Agreement ("NPA"). Although the State Court action is not a part of this Complaint, and is not alleged in the four (4) corners of it, it is a fact that cannot be contested since Plaintiff has filed a State Court action. EFTA00222873 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 2 of 19 act"; and 5) Plaintiff has failed to state a cause of action for conspiracy to violate §2255. I. LEGAL STANDARD Defendant's motion to dismiss must be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claims that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court must accept all of plaintiffs factual allegations as true. Schuer v. Rhodes, 416 U.S. 232 (1974). Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint need only be "a short and plain statement of the claim," and as long as the pleadings "give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests," notice pleading has been satisfied. Conley v. Gibson 355 U.S. at 47. For a claim to state a cause of action however, facts, not labels and conclusions must be asserted. Bell Atl. Corp. v. Twombly 550 U.S. 544 (2007) II. ARGUMENT Point 1. Plaintiff has every right to proceed in State court for a Florida common law claim, and in this Court for a federal claim. Defendant EPSTEIN's argument on this point is frivolous. Plaintiff's claims in State court are based on the common law of Florida, while the federal claims are based on a federal statutory remedy.2 There are different facts that prove each claim and different elements to the claims. Defendant seems to be arguing that the Plaintiff forfeits a right to a federal remedy when she invokes a parallel, but independent and wholly distinct right to a State remedy. That is simply not supported by any case or reasonable interpretation of any case. The lynchpin of Defendant's argument is that concurrent jurisdiction is available to hear On a Motion to Dismiss, the Court is of course confined to the four corners of the Complaint, and it is completely improper for the Defendant to attach as Exhibits copies of a Complaint from a different proceeding, a fact that is not alleged anywhere in the Complaint at issue before this Court. Nevertheless because the Defendant's argument on this issue is meritless, Plaintiff addresses it on the merits. 2 EFTA00222874 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 3 of 19 all claims in one forum; that is simply not the case, since the state claims are vastly different than the federal statutory remedy. If the State claims had been filed in this Court, this Court would not be obligated to exercise concurrent jurisdiction. It is well established that the exercise of supplemental jurisdiction is discretionary with the court, and is properly rejected under many circumstances.' 28 U.S.C. §1367, "supplemental jurisdiction," provides that: ©) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-- (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Courts routinely "are obligated to raise and decide issues of subject matterjurisdiction sua sponte any time it appears subject matter jurisdiction is absent." Carias v. Lenox Financial Mortgage Corporation 2008 U.S. DIST. LEXIS 20345 *1 (N.D. Cal. March 5, 2008). In Carias, after granting summary judgment on the sole federal claim, the Court remanded the State claims to state court, stating: "The Court declines to exercise pendent jurisdiction over the state law claims and remands the action to state court. The Court finds In United Mine Workers v. Gibbs, 383 U.S. 715 (1966), a jury's verdict against a union based on State law claims was reversed, in part, because the federal law claim failed. The Court noted that: "It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiffs right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U.S. 64.Needless decisions of state law [by a federal court] should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law." 3 EFTA00222875 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 4 of 19 that the issues of economy, convenience, fairness and comity collectively weigh in favor of remand. See Harrell, 934 F.2d at 205. Comity weighs especially strong, given that the remaining claims are pure state law claims with no connection to federal law. Economy also weighs in favor of remand as state courts are better equipped to efficiently handle state law claims." Id. at *5-6 (emphasis added). In Daimler Chrysler Corporation v. Charlotte Cuno 547 U.S. 332, 351-52 (2006) the Supreme Court stated: Gibbs held that federal-question jurisdiction over a claim may authorize a federal court to exercise jurisdiction over state-law claims that may be viewed as part of the same case because they "derive from a common nucleus of operative fact" as the federal claim. 383 U.S., at 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218. Plaintiffs assume that Gibbs stands for the proposition that federal jurisdiction extends to all claims sufficiently related to a claim within Article III to be part of the same case, regardless of the nature of the deficiency that would keep the former claims out of federal court if presented on their own. Our general approach to the application of Gibbs, however, has been markedly more cautious. For example, as a matter of statutory construction of the pertinent jurisdictional provisions, we refused to extend Gibbs to allow claims to be asserted against nondiverse parties when jurisdiction was based on diversity, see Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978), and we refused to extend Gibbs to authorize supplemental jurisdiction over claims that do not satisfy statutory amount-in-controversy requirements, see Finley v. United States, 490 U.S. 545, 109 S. Ct. 2003, 104 L. Ed. 2d 593 (1989). As the Court explained just last Term, "we have not . . . applied Gibbs' expansive interpretive approach to other aspects of the jurisdictional statutes." Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 553, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005) (applying 28 U.S.C. § 1367, enacted in 1990, to allow a federal court in a diversity action to exercise supplemental jurisdiction over additional diverse plaintiffs whose claims failed to meet the amount-in-controversy threshold). What we have never done is apply the rationale of Gibbs to permit a federal court to exercise supplemental jurisdiction over a claim that does not itself satisfy those elements of the Article Ill inquiry, such as constitutional standing, that "serve to identify those disputes which are appropriately resolved through the judicial process." Whitmore, 495 U.S., at 155, 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135. EFTA00222876 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 5 of 19 (Emphasis added) Defendant's argument that the Court should abstain from deciding the purely federal issues in this case because there is an independent action under State law is absurd. For this argument the Defendant relies on the Colorado River abstention doctrine, clearly inapplicable to this case. Only in "exceptional" circumstances, to promote conservation of judicial resources and comprehensive disposition of litigation, would a federal court be authorized to dismiss federal parallel's claims because of the pendency of state law claims that are initiated in state court. Colorado River Water Conservation District v. United States 424 U.S. 800 (1976). However, for the Colorado River doctrine to even apply, there must be clear Congressional direction that would preclude a federal court's "virtually unflagging obligation ...to exercise federal jurisdiction." Id. at 817. In that case, the Supreme Court found that clear Congressional direction from the McCarran Amendment, which the Court read to counsel against "piecemeal litigation" conceming issues of water rights in a river system, favored abstention Id. at 819. Even with this clear Congressional direction, if other factors had not favored abstention, it may not have been ordered. Id. at 820. 'The federal claims that are the subject matter of this action are not necessarily parallel to the State law claims, although the incidents that gave rise to both the federal and state claims arise from the same series of events. A Florida appellate court, for example, has refused to apply principles of res judicata to bar State discrimination claims after the plaintiff lost federal discrimination claims. Andujar v. National Property & Casualty Underwriters, 659 So. 2d 1214 (Fla. 4th DCA 1995) (adverse judgment against plaintiff in federal court for federal discrimination claims did not bar subsequent action under state discrimination laws). Here, although some of the elements for some of the claims may be similar, they are sufficiently different that application of Andujar would preclude res judicata. To determine whether a case is parallel, courts have looked to whether the same issues are being litigated. Calvert Fire Ins. Co. v. American Mut. Reins. Co. 600 F.2d 1228, 1229, n. 1 (7th Cir. 1979); the issues in the State court and in this Court are not the same. 5 EFTA00222877 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 6 of 19 Defendant EPSTEIN does not offer any evidence of any Congressional direction that would direct this Court to abstain from hearing claims under 18 U.S.C. §2255.5 Further, the Colorado River doctrine only applies when federal courts are presented with "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar." Id. at 814 (emphasis added).6 Plaintiff in this case is not asking this Court to adjudicate any claims under State law, nor do the claims present "policy problems of substantial public import." This case involves claims against an individual brought by another individual. Just how narrow the circumstances under which abstention is appropriate under the Colorado River doctrine, was demonstrated in the subsequent decision of the Supreme Court in the case of Will v. Calvert Fire Insurance Co. 437 U.S. 655 (1979). In Will, the Supreme Court further narrowed the contours of when a federal court may abstain when there is a parallel state action. In that case, a bare majority of one held upheld the District Court's decision to abstain, however, Justice Blackmun, in casting the deciding vote, did so because he was of the opinion that the remedy sought (mandamus) was premature, since the Appellate Court which had reversed the District Court, should have simply directed it to reconsider the issue in light of the very limited circumstances under which abstention is appropriate under the Colorado River doctrine. Id. at 668. While the Will case recognizes that Colorado River abstention is a matter generally The Supreme Court said that Congressional direction is the "[m]ost important factor." Id. at 819. Colorado River has been applied where the plaintiff is pursuing federal civil rights daims in state and federal courts, at the same time, which is not the case here. See for example: Atchinson v. Nelson, 460 F. Supp. 1102 (D. Wyo. 1978). 6 EFTA00222878 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 7 of 19 left to the sound discretion of the District Court, the Eleventh Circuit has abolished its application for claims predicated on 42 U.S.C.§1983. Alacare. Inc. v.Bagiano, 785 F. 2d 963 (11th Cir. 1986);See also: Tovar v. Billmeyer 609 F. 2d 1291 (9th Cir. 1979) (rejecting application of abstention in Section 1983 cases). Defendant cites no cases where the Colorado River doctrine has been applied to a federal claim under §2255. The cases cited by Defendant EPSTEIN do not support a decision by this Court to abstain over what is a purely federal claim. In American Bankers Ins. Co. v. First State Ins. Co., 891 F.2d 882 (111" Cir. 1990), the District Court dismissed a purely state law claim for equitable subrogation because there had been an earlier claim for declaratory relief in State Court; the Eleventh Circuit reversed, concluding ...that no exceptional circumstances require dismissal of this case in deference to the pending state court proceeding. If it were simply a question of judicial economy, this litigation probably should proceed in the New York court. A federal court cannot properly decline to exercise its statutory jurisdiction, however, simply because judicial economy might be served by deferring to a state court. Federal courts have a 'virtually unflagging obligation' to exercise the jurisdiction given them.' Colorado River 424 U.S. at 816, 96 S. Ct. at 1246. The interest in preserving federal jurisdiction mandates that this action not be dismissed. 891 F.2d at 886. Point 2. The retroactivity of the amendments to §2255 is not appropriately addressed in a motion to dismiss; but if the Court is so inclined to consider it, there are insufficient facts pled in the Complaint to render the 2006 amendments inapplicable to the case at bar. The only issue properly before the Court is whether the Complaint states a cause of action. ¶14 of the Complaint claims that the Plaintiff is entitled to the sum of $150,000 for each event wherein Defendant EPSTEIN solicited the Plaintiff for prostitution. Each event 7 EFTA00222879 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 8 of 19 is set forth in the Complaint in ¶13.7 There are two related issues before the Court: 1) the amount of minimum damages recoverable, $50,000, or $150,000; and, 2) whether the Plaintiff can recover the minimum amount of damages for each temporally distinct event, or whether she is restricted to a single recovery of the minimum damages recoverable under the statute. For the first issue, it is Plaintiffs position that the matter cannot be decided on a motion to dismiss, because what Defendant EPSTEIN is asking the Court to do is to declare, prematurely, that when the Court instructs the jury, it instruct them that the minimum recovery for the Plaintiff, if she proves the allegations, is either $50,000 (for the entire set of events, Defendant EPSTEIN's position) or $150,000 for each event (Plaintiffs position); this issue cannot be settled on a motion to dismiss, but is better reserved for the charging conference at trial. On the second issue, as will be addressed later, under the plain language of the statute, since Defendant EPSTEIN can be criminally prosecuted for each temporally distinct event where he solicited this minor for prostitution, he can be subjected to the civil remedy for damages for each such event, under either version of the statute. This second issue would be better addressed on a summary judgment motion, and again, has nothing to do with whether Plaintiff has pled a cause of action pursuant to Rule 12(b)(6), Fed. R. Civ. P. Plaintiff agrees with the general proposition that a new law that creates new Plaintiff alle es that Defendant EPSTEIN, or others working on his behalf, while she was a minor, on "6/16/03, 7/2/03, 4/9/04, 6/7/04, 7/30/04, 8/30/04, 10/9/04, 10/12/04, 10/30/04 and 11/9/04. In addition, Plaintiff believes that there were as man as 10 to 20 other occasions durin this time frame that Defendant EPSTEIN services, all during the time a s e was a minor. 8 EFTA00222880 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 9 of 19 substantive rights, absent Congressional direction to the contrary, does not have retroactive effect, but this is not a new law. §2255 was amended in 2006, to, inter alia, provide an enhanced minimum recovery for damages caused by sexual predators such as Defendant EPSTEIN. However, the change in the civil remedies available is a procedural, not a substantive change in the law, and procedural changes to a statute are routinely applied retroactively! Where substantive changes in a law are made by Congress, a slim majority of the Supreme Court has declined retroactive application, even where the law was ostensibly enacted to overrule a Court precedent that had itself, in the view of Congress, overruled earlier Court precedents. Rivers v. Roadway Express 511 U.S. 298, 308 (1994).9 Defendant EPSTEIN also cites to United States v. Siegel 153 F.3d 1256 (11'h Cir. 1998), wherein, based on a defendant's inability to pay restitution mandated by a penal statute, the Court reversed a restitution order. An amendment to the statute removed from consideration the defendant's ability to pay restitution; the Court said such an amendment could not be applied retroactively because the provision amounted to a punishment under a penal statute, and would violate the ex post facto provision in the U. S. Constitution, This case is clearly distinguished from our case: the statute here is a civil, not a penal remedy; the amendment to the statute modifies the minimal exposure of the Defendant if the Plaintiff otherwise proves her claim, but does not, as in the Siegel case, dispense with a substantive defense to restitution, as occurred in Siegel. See: United States v. Whiting, 165 F.3d 631 (8'h Cir. 1999), where a conviction for possession of child pornography was upheld, despite the fact that the conduct of the defendant was arguably not specifically proscribed by statute at the time the images were possessed; the Court held the legislative amendment was a mere clarification of the prior legislation and not an ex post facto law. Justice Scalia cited the statement of purpose of the Civil Rights Act of 1991, to hold that, for example, the amendments specifically designed to overrule Patterson v. McLean Credit Union 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363, should be applied prospectively only, based on a statutorily expressed Congressional intent to do so: "The statute that was actually enacted in 1991 contains no comparable language. Instead of a reference to 'restoring' pre-existing rights, its statement of purposes describes the Act's function as 'expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.' 1991 Act, § 3(4), 105 Stat. 1071 (emphasis added)." 9 EFTA00222881 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 10 of 19 Similarly, in the companion case of Landgraf v. Usi Film Prods., 511 U.S. 244, 275, n. 28 (1994), the Court declined to retroactively apply substantive changes to Title VII cases, but noted that While we have strictly construed the Ex Post Facto Clause to prohibit application of new statutes creating or increasing punishments after the fact, we have upheld intervening procedural changes even if application of the new rule operated to a defendant's disadvantage in the particular case. See e. g., Dobbert v. Florida, 432 U.S. 282, 293-294, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977); see also Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990); Beazell v. Ohio, 269 U.S. 167, 70 L. Ed. 216, 46 S. Ct. 68 (1925). The question becomes then is an increase in the minimum guaranteed damages of a civil remedy statute a substantive or a procedural change? A careful reading of Landsqraf compels a finding that it is a procedural change only that must be given retroactive application. Although the Landsgraf Court declined to give retroactive application to the change most analogous to the one at issue here, it did so because it found the newly created right to compensatory damages, previously not available under Title VII, and made available by the Civil Rights Act of 1991, was in effect the creation of a new statute: The provision of § 102(a)(1) authorizing the recovery of compensatory damages is not easily classified. It does not make unlawful conduct that was lawful when it occurred; as we have noted, supra, 511 U.S. at 252-255, § 102 only reaches discriminatory conduct already prohibited by Title VII. Concerns about a lack of fair notice are further muted by the fact that such discrimination was in many cases (although not this one) already subject to monetary liability in the form of backpay. Nor could anyone seriously contend that the compensatory damages provisions smack of a "retributive" or other suspect legislative purpose. Section 102 reflects Congress' desire to afford victims of discrimination more complete redress for violations of rules established more than a generation ago in the Civil Rights Act of 1964. At least with respect to its compensatory damages provisions, then, § 102 is not in a category in which objections to retroactive application on grounds of fairness have their greatest force. 10 EFTA00222882 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 11 of 19 Nonetheless, the new compensatory damages provision would operate "retrospectively" if it were applied to conduct occurring before November 21, 1991. Unlike certain other forms of relief, compensatory damages are quintessentially backward looking. Compensatory damages may be intended less to sanction wrongdoers than to make victims whole, but they do so by a mechanism that affects the liabilities of defendants. They do not "compensate" by distributing funds from the public coffers, but by requiring particular employers to pay for harms they caused. The introduction of a right to compensatory damages is also the type of legal change that would have an impact on private parties' planning. In this case, the event to which the new damages provision relates is the discriminatory conduct of respondents' agent John Williams; if applied here, that provision would attach an important new legal burden to that conduct. The new damages remedy in § 102, we conclude, is the kind of provision that does not apply to events antedating its enactment in the absence of clear congressional intent. In cases like this one, in which prior law afforded no relief, § 102 can be seen as creating a new cause of action, and its impact on parties' rights is especially pronounced. Section 102 confers a new right to monetary relief on persons like petitioner who were victims of a hostile work environment but were not constructively discharged, and the novel prospect of damages liability for their employers. Because Title VII previously authorized recovery of backpay in some cases, and because compensatory damages under § 102(a) are in addition to any backpay recoverable, the new provision also resembles a statute increasing the amount of damages available under a preestablished cause of action. Even under that view, however, the provision would, if applied in cases arising before the Act's effective date, undoubtedly impose on employers found liable a "new disability" in respect to past events. See Society for Propagation of the Gospel, 22 F. Cas. at 767. The extent of a party's liability, in the civil context as well as the criminal, is an important legal consequence that cannot be ignored. Neither in Bradley itself, nor in any case before or since in which Congress had not clearly spoken, have we read a statute substantially increasing the monetary liability of a private party to apply to conduct occurring before the statute's enactment. See Winfree v. Northem Pacific R. Co. 227 U.S. 296, 301, 57 L. Ed. 518, 33 S. Ct. 273 (1913) (statute creating new federal cause of action for wrongful death inapplicable to case arising before enactment in absence of "explicit words" or "clear implication")• United States Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells Co., 209 U.S. 306, 314-315 (1908) (construing statute restricting subcontractors' rights to recover damages from prime contractors as prospective in absence of "clear, strong and imperative" language from Congress favoring retroactivity). Id. at 281-86 [footnotes omitted]. 11 EFTA00222883 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 12 of 19 Here, we have an increase in the proscribed minimum recovery, if the claim is otherwise proven, but it was a damages remedy that already existed at the time of Defendant EPSTEIN's commission of the acts against the minor. Hence, here, unlike Landsgraf, there was an existing civil remedy prior to Defendant EPSTEIN's commission of the acts against the minor Plaintiff, and there continues to be such a remedy. Similar to our fact situation here, in Bradley v. School Bd. of Richmond, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), where a unanimous Court applied an intervening statute authorizing an award of attorney's fees for parties seeking to end school segregation, to a case pending on appeal at the time the statute was enacted. Noting that the statute created an "additional basis or source for the Board's potential obligation to pay attorneys' fees," 416 U.S. at 721, the Court found that the statute's retroactive application did not adversely affect the settled expectations of the parties. It is difficult to imagine, particularly when the Court is contemplating a motion to dismiss, that Defendant EPSTEIN had a "settled expectation" that if and when he was caught for solicitation of minors for prostitution he would be liable for only a minimum of $50,000; it is highly probable that he never believed he would be caught and he never knew of or contemplated the civil penalties he would face under §2255. It is highly unlikely that Defendant EPSTEIN made those calculations when he committed the crimes against this or any other minor. Hence the rationale usually advanced for prospective application of statutory enactments is simply not present here, and the record is devoid of any factual material that would support such a conclusion.fO As Justice Blackmun said in Although outside the pleadings and not appropriate for consideration on a Motion to Dismiss, Defendant EPSTEIN has refused to answer any substantive questions in the only two (2) depositions he has given in all these cases, including in the State court case involving this Plaintiff. Accordingly, Plaintiff has not been able to 12 EFTA00222884 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 13 of 19 dissent in Landsgraf, there is no vested right to break the law." Bottom line is, a motion to dismiss a claim is not the correct procedural mechanism to determine the retroactivity of a statute. Landsgraf was decided after a trial on the merits of the claim, wherein the trial court determined that although the sexual harassment was serious, the employer, upon learning of it, had taken prompt remedial measures to correct it, and the plaintiff did not have sufficient cause to warrant quitting her job. Id. at 247-48. Rivers v. Roadway Exoress 511 U.S. 298 (1994) was decided after a trial on the merits as well, wherein the Court dismissed the 1981 claims based on the holding in Patterson supra and exonerated the Defendant on the Title VII claims in a bench trial. On appeal, the plaintiff sought relief under the 1991 Civil Rights Act amendments, which overruled Patterson. These cases where in a much different procedural posture than the present case, and the law that is applicable, including the raise of the minimum cap to $150,000, was in place well before this suit was filed. Point 3. 18 U.S.C. §2255 permits a claim for each temporally distinct event. ascertain whether Defendant EPSTEIN had settled expectations about the limits of his civil liability under §2255. • "At no time within the last generation has an employer had a vested right to engage in or to permit sexual harassment; 'there is no such thing as a vested right to do wrong.' Freeborn v. Smith 69 U.S. 160, 2 Wall. 160, 175, 17 L. Ed. 922 (1865). See also 2 N. Singer, Sutherland on Statutory Construction § 41.04, p. 349 (4th rev. ed. 1986) (procedural and remedial statutes that do not take away vested rights are presumed to apply to pending actions). Section 102 of the Act expands the remedies available for acts of intentional discrimination, but does not alter the scope of the employee's basic right to be free from discrimination or the employer's corresponding legal duty. There is nothing unjust about holding an employer responsible for injuries caused by conduct that has been illegal for almost 30 years." Id. at 297. Similarly in this case, soliciting minors for acts of prostitution, has been unlawful and the civil remedy associated therewith has long preceded the acts in question. 13 EFTA00222885 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 14 of 19 (a) In general. Any person who, while a minor, was a victim of a violation of section 2241©), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title [18 USCS § 2241©), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423] and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney's fee. Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than $ 150,000 in value. The statute makes reference to "a violation" and "such violation," both references being in the singular. The statute does not say that if there are multiple violations, the Plaintiff is limited to a single recovery for all the violations that occur. Such a construction would due violence to the plain language of the statute and common sense. For example, if a person such as Defendant EPSTEIN engages in videotaping a sex act with a minor on Monday, and follows suit on Wednesday, there are potentially two separate crimes, and potentially two separate torts which give rise to two separate claims upon which recovery may be had. Plaintiff has alleged that Defendant EPSTEIN violated the statute on 10 confirmed occasions and up to 20 additional occasions. Each date for each violation is different. There is no language in the statute that prohibits the Plaintiff from suing for each violation, and the dicta set forth in Tilton v. Playboy Entertainment Group, Inc., 554 F. 3d 1371 (11th Cir. 2009), vaguely noting that the District Court awarded the Plaintiff "the minimum 'actual damages'", Id. at 1379, does not support Defendant's claim that the Plaintiff is entitled to a single lump sum recovery for each temporally distinct violation. There is no suggestion in this Opinion that the Plaintiff was so limited, no reference to whether Plaintiff sought the relief being sought here or that the events complained of in Tilton occurred on multiple occasions. In fact, it appears clear from the Opinion that the pro se Defendant that 14 EFTA00222886 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 15 of 19 the Plaintiff prevailed against (by default) was sued for a singular violation of recording the Plaintiffs sexually oriented performance at a Spring Break gathering. There is no indication that the conduct that was recorded by the defaulted Defendant occurred on multiple occasions. Point 4. The Eleventh Circuit has foreclosed Defendant EPSTEIN's argument that for a violation of 18 U.S.C. 2422(b) to occur, he must travel in interstate commerce. In United States v. Yost 479 F.3d 815 (11m Cir. 2007), a defendant was convicted of two counts of attempting to induce persons he believed were minors (they were government agents posing as minors) to commit acts of prostitution under 18 U.S.C. §2422(b); he sought to void his convictions on appeal because he didn't get to the meeting place. The Court rejected the argument, holding: We are not convinced by Yost's argument that his failure to arrive at the meeting place precludes a finding of a substantial step. Although this is the first time we have been confronted with an attempt conviction under 18 U.S.C. § 2422(b) where travel is not involved, two other circuits have examined the issue and determined travel is not necessary to sustain such a conviction. In United States v. Bailey 228 F.3d 637, 639-40 (6th Cir. 2000), the Sixth Circuit affirmed a conviction under Section 2422(b) where the defendant sent e-mails proposing oral sex and attempted to set up meetings with minor females, albeit unsuccessfully. Similarly, in United States v. Thomas 410 F.3d 1235, 1246 (10th Cir. 2005), the Tenth Circuit affirmed a Section 2422(b) attempt conviction, despite a lack of evidence of travel. The Tenth Circuit stated: "Thomas crossed the line from 'harmless banter to inducement the moment he began making arrangements to meet [the minor], notwithstanding the lack of evidence that he traveled to the supposed meeting place." Id. Viewing the totality of Yost's actions, we likewise conclude Yost crossed the line from mere "talk" to inducement. In addition to his online chats with Lynn, Yost called Lynn on the telephone, posted pictures of his genitalia online, and made arrangements to meet her. Despite a lack of evidence of travel, the totality of Yost's actions convinces us that a reasonable jury could have found Yost committed a substantial step. Id. at 820. 15 EFTA00222887 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 16 of 19 As a practical matter, although not pled, the manner in which Defendant EPSTEIN solicited Plaintiff to commit as alleged was by telephone, by use of one of his surrogate "assistants," in this case Defendant t2 Plaintiff would receive a phone call on her cell phone (with a 561 exchange) from the cell phone of Defendant who used a cell phone with a New York exchange (917 area code). In United States v. Drury, 396 F.3d 1303 (11th Cir. 2005), the Court had to determine whether a murder for hire conviction, where the defendant made calls from a Georgia land line to a federal agent posing as a hit man on a cell phone that routed calls through Jacksonville, was sufficient to establish use of interstate commerce for commission of the crime in question. The Court affirmed the conviction, even where there was no intent to use an instrumentality of interstate commerce, since the Defendant believed he was calling a number in Georgia. In this case, the facts will demonstrate that for 99 per cent of the solicitations for prostitution, Plaintiff was called by Defendant , who used her cell phone with a 917 exchange, a New York exchange, and presumably set up the event after being instructed by Defendant EPSTEIN when and at what time the Plaintiff should appear at his home for the he paid the Plaintiff for. Defendant resides and is believed to have resided in New York at all times relevant to this suit, although she was present at Defendant EPSTEIN's home on some of the occasions when the Plaintiff appeared after being summoned there. However, since she used a cellular phone, that is clearly a facility of interstate commerce as contemplated by 18 U.S.C. 2422(b), which encompasses conduct Ms. has been served in accordance with New York law after seeking to avoid service with the assistance of a doorman at her building. She has thus far failed to respond to the Complaint, and Plaintiff is filing a Motion for Default against her today. 16 EFTA00222888 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 17 of 19 where "any facility or means of interstate commerce" is used.t3 The Eleventh Circuit has recognized that "[t]he telephone system is clearly a 'facility of interstate . . . commerce.'" United States v. Covington 2009 U.S. App. LEXIS 8263 (11th Cir. April 22, 2009). Point 5. Plaintiff has pled sufficient facts to establish a conspiracy to violate §2255. A civil conspiracy is an agreement by two or more persons, to do an unlawful act or a lawful act by unlawful means, the doing of an overt act in furtherance of the conspiracy, resulting in damage to the Plaintiff. Walters v. Blankenship, 931 So. 2d 137 (Fla. 5th DCA 2006); Blatt v. Green, Horn, et al., 456 So. 2d 949 (Fla. 3rd DCA 1984). To support her claim of a civil conspiracy, Plaintiff has pled the following: 9. Defendant EPSTEIN, in agreement with two (2) pert. employed for this purpose, and Defendant conspired with these other two, and others, to solicit young women of the type Defendant EPSTEIN preferred, blonde, attractive in appearance, and younger than 18 years of age, to 10. Defendants EPSTEIN and entered into a criminal conspiracy to solicit young women fo including the Plaintiff, here in Palm Beach County. 11. From about June, 2003 until on or about Feb r u a r y , 2 0 0 5 , De f e n d a n t s EPSTEIN and persuaded, induced, or enticed the Plaintiff to come to Defendant EPSTEIN's home and provide Defendant EPSTEIN with "massages" which escalated into M etween Defendant "(b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or 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 and imprisoned not less than 10 years or for life." (Emphasis added). 17 EFTA00222889 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 18 of 19 EPSTEIN and the Plaintiff designed to fulfill his unnatural sexual desires for young women or even younger girls who were minors. These acts included Defendant EPSTEIN's request that he wanted the encounter to be like a Defendant EPSTEIN would script lines for the Plaintiff to say. Inclu 9 e en.an occasion after he on eac Plaintiff has pled the elements of a civil conspiracy to violate §2255. CONCLUSION Defendant's Motion to Dismiss must be denied. Plaintiff's Complaint states a cause of action pursuant to §2255. The Colorado River doctrine for abstention is not remotely applicable to this case, which is grounded on a purely federal statutory cause of action, and does not involve the type of policy concerns present there (water rights). It is inappropriate for the Defendant to seek to limit his minimum statutory exposure on a Motion to Dismiss, where there is no factual record or legislative history to determine the retroactivity of an enhanced damages provision to a cause of action and a civil remedy that existed at the time of the wrongful acts. §2255 claims permit a Plaintiff to assert multiple claims for multiple violations that occur in temporally distinct time frames, no differently than any claim, whether based on tort or statutory law, that encompasses multiple events that occur at different times. On the interstate commerce issue, Plaintiff is prepared to allege, if the Court deems it necessary, how his employee and co-conspirator, Defendant , used an instrumentality of interstate commerce, her cell phone, to solicit the Plaintiff, then a minor, on behalf of Defendant EPSTEIN who solicited her 18 Finally, EFTA00222890 Case 9:09-cv-80469-KAM Document 36 Entered on FLSD Docket 06/12/2009 Page 19 of 19 Plaintiff has pled all necessary elements to establish a civil conspiracy to violate §2255. For these reasons, Defendant EPSTEIN's Motion to Dismiss must be denied; however, if the Court determines otherwise, Plaintiff respectfully requests leave to amend. Respectfully submitted, BY: s/ Isidro M. Garcia ISIDRO M. GARCIA Florida Bar No. AIR IA LAW FIRM P.A. West Palm Beach, FL 33401 Telephon Telecopie e-mail CERTIFICATE OF SERVICE ft bellsouth.net I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished VIA ECM TRANSMISSION to: Robert D. Critton, Esq. and Michael Pike, Esq., BURMAN CRITTON LUTTIER & COLEMAN, West Palm Beach, Florida 33401 this 12th day of June, 2009. BY:s/ Isidro M. Garcia ISIDRO M. GARCIA 19 EFTA00222891