EFTA00808803.pdf

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION www.flsb.uscourts.gov IN RE: CASE NO.: 09-34791-RBR ROTHSTEIN ROSENFELDT ADLER, P.A., CHAPTER 11 Debtor. INTERVENORS .. AND JANE DOE'S RESPONSE TO EPSTEIN'S MOTION TO STRIKE Intervenors M., and "Jane Doe" (hereinafter "the Victims"), proceeding pseudonymously, having previously been allowed to intervene in this action, and having participated in the Court's hearing on April 13, 2018, now file this response in opposition to Jeffrey Epstein's motion to strike their list of requested relief. Epstein's belated motion to strike is a thinly veiled attempt to litigate the merits of what sanctions should be imposed on Epstein (and his counsel) even before discovery is provided or Epstein is deposed. It also fails to satisfy the requirements for a motion to strike provided in Rule 12(f) of the Federal Rules of Civil Procedure, which are applicable in this adversary proceeding. Accordingly, the Court should deny the motion to strike and, if necessary, address the issues raised in the motion in due course at the scheduled evidentiary hearing at the end of August. FACTUAL BACKGROUND While Epstein has labelled his motion as a "motion to strike," it is unclear what rule he relies upon. He cites no rule — or, indeed, any legal authority — for the Court to "strike" the Victims' pleading. But, for present purposes, it appears that Epstein seeks to have his "motion to strike" act as the functional equivalent of a motion to dismiss the Victims' request for sanctions. Accordingly, this Court should take all of the Victim's previous allegations to be true, viewing them in the light I EFTA00808803 most favorable to the Victims with all inferences favorable to Victims. See In re Massa Falida do Banco Cruzeiro do Sul S.A., 567 B.R. 212, 219 (Bankr. S.D. Fla. 2017) (citing St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (1 I th Cir. 2002)). Proceeding on that basis, the existing record contains the following facts that should be considered in determining the motion. Epstein began sexually assaulting ■. when she was thirteen years old and continued to molest her on more than fifty occasions over three years. DE 6344 at 3. Epstein also sexually assaulted ■., beginning when she was fourteen years old and continuing on numerous occasions. Id. Another of the minor girls Epstein sexually assaulted was Jane Doe; Epstein began abusing her when she was fourteen years old. Id. Thereafter, each of these three girls obtained legal counsel, led by Mr. Edwards, to file lawsuits against Epstein for his sexual abuse. Id. And after that, as the Court is aware from prior pleadings (see, e.g., id. at 5), Epstein obtained Edwards' confidential attorney-client communications, through means yet-to-be-fully explained. Epstein — the man who abused the Victims — personally obtained these communications. Id. Epstein obtained these communications in direct violation of an order of this Court. Id. Following an initial hearing on this matter, this Court entered an Order to Show Cause against Epstein, directing him to appear for an evidentiary hearing to show why he should not be held in contempt. DE 6366 at 4. This Court set the evidentiary hearing on the issue for August 23 and 24, 2018. Id. The Victims, Edwards, and the Farmer Jaffe law firm have all been attempting to schedule a deposition of Mr. Epstein before the hearing. Those efforts have thus far been unsuccessful, as Mr. Epstein has had various conflicts with proposed times. However, it appears (as of this writing) that his deposition will finally be taken on August 17, 2018. At the Court's initially hearing on this matter on April 13, 2018, the Court directed Victims' counsel to file a statement "setting forth your damages and what you're seeking." Trans. at 46. 2 EFTA00808804 The Court followed up this in-court direction with a later written order that the Victims "file a summary of their damages with the Court." Id. Pursuant to the Court order, on May 14, 2018, the Victims filed a list of the relief and damages that they would seek in this case. DE 6384. With Epstein's deposition fast approaching, on July 12, 2018 — about two months after the Victims' first filed their summary of damages — Epstein's filed a "motion to strike" the Victims' summary. DE 6393. This Court has set a hearing on Epstein's motion to strike for August 1. DISCUSSION The Court should deny Epstein's motion to strike because it fails to satisfy the requirements for a motion to strike provided by Federal Rule of Civil Procedure 12(f). Moreover, the Court should also deny the motion because it is meritless. Epstein's Motion to Strike Is Untimely. First, the Court should simply deny Epstein's motion to strike as untimely. While Epstein never cites what rule he is proceeding under, the only authority that authorizes a motion to strike is found in the Federal Rules of Civil Procedure. Rule 12(f) — entitled appropriately enough "Motion to Strike" — is applicable to this adversary bankruptcy proceedings. See Fed. Bankruptcy R. 7012(b) ("Rule 12(b)-(i) F.R.Civ.P. applies in adversary proceedings."); see, e.g., In re Steffensen, 511 B.R. 149, 157 (Bankr. D. Utah 2014) ("Fed. R. Civ. P. 12(f) [is] made applicable in adversary proceedings by Fed. R. Bankr. P. 7012(b)."). In an effort to force motions to strike to be filed rapidly, Rule 12(f) specifically sets a 21-day limit after the date of the filing of the pleading in question. See Fed. R. Civ. P. 12(f) (a court may strike scandalous material from a pleading "on motion made by party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading"). Here, because this Court's order did not allow a response to the Victims' list of damages, any motion to strike would only have 3 EFTA00808805 been timely if Epstein filed it within 21 days — not the nearly 60 days later that he acted. Epstein's motion is obviously untimely and should be denied on that ground. See, e.g., In re Steffensen, 511 B.R. 149, 157 (Bankr. D. Utah 2014) (denying motion to strike for being untimely filed outside the 21-day limit). Epstein's Improperly Seeks to Strike Materialfrom Something that is Not a "Pleading." Second, Rule 12(f) does not authorize striking material contained within a statement of damages. As has been recognized by another bankruptcy court. "Rule 12(f) applies to `pleadings.' . . . `Although some cases have held that Rule 12(f) may be used to strike documents other than pleadings, the weight of recent authority is that such an action is not contemplated or permitted by the Rules.'" In re Steffensen, 511 B.R. 149, 157 (Bankr. D. Utah 2014) (emphasis and internal quotation added) (citing Anusie-Howard v. Todd, 920 F.Supp.2d 623, 627 (Bankr. D. Maryland 2013) ("A motion is not a pleading" for which a motion to strike is authorized and citing Fed. R. Civ. P. 7(a) (listing types of pleadings; statement of damages not among the listed "pleadings")); see also BRYAN A. GARNER, GARNER'S DICTIONARY OF LEGAL USAGE 682 (3d ed. 2011) (noting that a "pleading" should be "distinguished from `court paper', which is a broader term. Motions, briefs, and affidavits are `court papers,' not `pleadings.' Examples of pleadings are complaints, petitions, counterclaims, and answers" (internal quotations added)). Accordingly, Epstein's motion should be denied because he has provided no authority for striking anything contained within the Victims' statement of damages. Epstein Improperly Seeks to Strike Material that is Not Scandalous or Othenvise Impertinent. Third, even if Rule 12(f) applied to allow striking material from a statement of damages, the Rule only authorizes striking of material that is "redundant, immaterial. impertinent, or scandalous." Fed. R. Civ. P. 12(f). Here, Epstein does not identify with precision any specific 4 EFTA00808806 material that is somehow "scandalous" or otherwise subject to being stricken. See In re Steffensen, 511 B.R. 149, 157 (Banks. D. Utah 2014) (denying motion to strike because "[t]he language of the rule contemplates that there will be a particular scandalous matter to be stricken, but that is not what the Defendant alleges."). The motion thus fails to satisfy the specificity requirements of Rule 12(f) and should be denied for that reason as well. Epstein's Motion Is, in Any Event, Meritless. Fourth, Epstein's motion simply fails on its merits. A motion to strike "is a drastic remedy which is disfavored by the courts." Williams v. Delray Auto Mall, Inc., 289 F.R.D. 697, 699 (S.D. Fla. 2013) (internal quotation omitted). Epstein fails to show why such a drastic remedy needs to be invoked here, particularly where the Victims' counsel has in good faith attempted to comply with the Court's instruction to provide a pleading "setting forth [the Victims'] damages and what (the Victims)] are seeking." Trans. at 46 (emphasis added). Epstein's real complaint appears to be that the Victims will ultimately fail to prove that they are entitled the remedies and compensation for the damages that they allege. This Court has previously ruled that, if it makes a finding of civil contempt, it "will consider imposing `compensatory sanctions for actual damages' incurred." DE 6366 at 4 (citing In re McLean, 794 F.3d 1313, 1326) (11h Cir. 2015). The Court further explained that these compensatory sanctions "may include, but are not limited to, professional fees or, considering the sensitive nature of the allegations, damages for emotional distress." DE 6366 at 4 (citing McLean, 719 F.3d at 1325-26). In light of the Court's statement, the Victims' provided a list of damages and relief that they will be seeking. The Victims believe that they will be able to prevail in showing contempt and proving their entitlement to relief. But, at this time the Court need not make any determination 5 EFTA00808807 one way or the other. The Court has set an evidentiary hearing on the issue for next month, and the Court can hear Epstein's complaints then. Moreover, it is hard to follow Epstein's arguments for striking the Victims' statement of a "summary" of their damages. For example, the Victims' listed attorneys' fees as something they are seeking. This Court's order specifically stated that such fees could be appropriately sought. DE 6366 at 4. Epstein claims that the Victims "are responsible for their own attorneys' fees" — but that is not a basis for "striking" their request. That may ultimately provide to be an argument for denying attorneys' fees. But the time for reaching that conclusion would only be after discovery in this case, the evidentiary hearing, and related briefing and argument. The Victims have also provided a "summary" that they will each be seeking "remedies and sanctions" of $25,000 for each of them. DE 6384 at 2. The Victims explained that these remedies will serve as "liquated damage for all the losses they are suffered as a consequence of the release of the materials at issue." Id. While Epstein may not like the Victims' approach, it is a carefully- considered one. Epstein would apparently prefer that the Victims present their claim for emotional distress in such a way as to subject themselves to depositions at the hands of his attorneys. The reason he would like so an approach is quite clear. In past proceedings with the victims of his sexual assaults (including some of the victims who come before this court), Epstein engaged attorneys to conduct brutal questioning of the victims so savage that it made local headlines. See Jane Musgrave, Victims Seeking Sex Offender's Millions See Painfid Pasts Used Against Them, Palm Beach News, Jan. 23, 2010, available at painfulpasts-192988.html. In an effort to avoid further traumatizing sex offense victims, the Victims are pursuing their damages through what might be called a liquidated damages/per se 6 EFTA00808808 losses approach. The concept of such per se damages is well-recognized in the defamation context and would seem readily-applicable to the situation at hand in this case. Further discovery from Epstein in this case may also help elucidate the extent of these damages. In any event, however, as much Epstein may dislike the legal theory, it provides no basis for striking the Victims' listing of such damages. The Victims are entitled to present the legal and factaul case for such damages at the conclusion of discovery. For similar reasons, Epstein is not entitled to take the deposition of victims he repeatedly sexually assaulted as minor girls. He cites no rule or authority for such depositions — much less any particular need to take their depositions. Epstein briefly claims he does not understand what the Victims are seeking. But his claims are belied by an extensive (eleven-page) response, replete with detailed legal citations and other arguments against the Victims' position that they are entitled to various forms of compensation. No depositions are required to inform Epstein of the Victims' claims. Moreover, the Eleventh Circuit has instructed that "at most, due process requires only `skeletal' protections in civil contempt proceedings." In re McLean, 794 F.3d 1313, 1324 (11th Cir. 2015). This Court is certainly providing far more than that through its evidentiary hearing. Epstein has no need or right to take his victims' depositions. CONCLUSION The Court should deny Epstein's motion to strike. 7 EFTA00808809  CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served electronically to all registered users on the CM/ECF system, which includes counsel identified on the service list below, on this 20th day of May, 2018. I HEREBY CERTIFY that the undersigned attorney is appearing pro hac vice in this matter pursuant to court order dated May 4, 2018. Paul G. Cassell, Esq. S.J. Quinney College of Law at the University of Utah 332 S. University St. Salt Lake City, UT 84112 Telephone: (above for address/contact purposes only, not to imply institutional endorsement) By: /s/ Paul G. Cassell Paul G. Cassell (Utah Bar No. a Pro Hac Vice -AND - I HEREBY CERTIFY that I am admitted to the Bar of the United State District Court for the Southern District of Florida and I am in compliance with the additional qualifications to practice in this court set forth in Local Rule 2090-1(A). SHAPIRO LAW 8551 West Sunrise Boulevard Suite 300 Plantation, Florida 33322 Telephone: By: /s/ Peter E. Shapiro Peter E. Shapiro FBN Attorneysfor Intervenors.., M, and Jane Doe 8 EFTA00808810  SERVICE LIST Bradley J. Edwards FLBN 542075 Brittany N. Henderson FLBN 118247 Edwards Pottinger LLC 425 N Andrews Avenue, Suite 2 Fort Lauderdale. FL 33301 Phone: (954)-524-2820 Fax: Attorneys for Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman,.. Scott J. Link, Esq. Link &Rockenbach P.A. 1555 Palm Beach Lakes Boulevard Suite 301 West Palm Beach. FL 33401 Pho Fax: Attorneys for Jeffrey Epstein Jack Scarola, Esq. Florida Bar No.: 169440 David P. Vitale, Jr., Esq. Florida Bar No.: 11517 Attorney E-Mails: Primary E-Mail: Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach Florida 33409 Phone: Fax: Attorneys for Bradley J. Edwards Niall T. McLachlan Carlton Fields Jorden Burt, P.A. 100 S.E. Second Street, Suite 4200 Miami, FL 33131 Counselfor Fowler White Burnett, P.A. EFTA00808811 Isaac M. Marcushamer Berger Singerman LLPO 1450 Brickell Avenue, Suite 1900 Miami FL 33131 Counselfor Litigating Trustee 10 EFTA00808812