EFTA00285477.pdf

Michael C. Miller mim Steptoe stenos • JOHNSON 1.0 May 15, 2017 Brad Edwards, Esq. Re: v. Jeffrey Epstein, et al. Civil Action No. 17-cv-616 Dear Brad: In accordance with the Court's May 15, 2017 Stipulation and Order in the above- referenced matter, defendants Jeffrey Epstein ("Epstein") and (collectively "Defendants" se f rth in this letter sinds pursuant to which the Complaint filed by plaintiff ("Plaintiff" or ' ') should be dismissed pursuant to Fed.R.Civ.P. 12(bX2) and (6). As a threshold matter, the allegations set forth in paragraphs 12 through 32 of the Complaint relating to state and federal investigations of Epstein, including his prior guilty plea in Florida, referred to herein as the "Prior Proceedings," are scandalous, harassing, and entirely immaterial to the Plaintiff's claims. Plaintiff should remove all of allegations relating to the Prior Proceedings from the Complaint. Under Rule 12(f) of the Federal Rules of Civil Procedure, a "court may strike from a pleading ... any ... immaterial, impertinent, or scandalous matter." Anderson v. Davis Polk & Wardwell LLP, 850 F. Supp. 2d 392, 416 (S.D.N.Y. 2012). "An allegation is impertinent or immaterial when it is neither responsive nor relevant to the issues involved in the action." Id. "'Scandalous' generally refers to any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court." Id. The allegations in the Complaint relating to the Prior Proceedings should be struck from the Complaint, pursuant to Rule 12(f). These allegations have no connection to the Plaintiff. As even you acknowledge to the Court during the April 6, 2017 conference ("April 6 Conference"), the Plaintiff had nothing to do with the Prior Proceedings. Plaintiff's references to the Prior EFTA00285477 Brad Edwards, Esq. Steptoe ..•,. {f,1, SSSSS May 15, 2017 Page 2 Proceedings in the Complaint serve only one purpose — to put Epstein in a poor light for conduct wholly unrelated to this dispute. These allegations create a substantial risk that finders of fact might conclude that Epstein engaged in the conduct alleged in the Complaint simply because of the alleged Prior Proceedings. For that reason, evidence of the alleged Prior Proceedings should be removed from the Complaint.I *********** The grounds for dismissal are that: (a) the Complaint fails to state a claim under 18 U.S.C. § 1595 ("Section 1595"), which is the sole claim asserted by Plaintiff; (b) the claim is barred by the statute of limitations; (c) the Complaint fails to allege personal jurisdiction over Defendants; and (d) venue is improperly laid in the Southern District of New York. Because the Plaintiff's Section 1595 claim turns solely on whether the Defendants engaged in fraud and coercion, as you admitted during the April 6 Conference, this letter will focus on those two elements of the claim. 1. The Complaint Fails to State a Claim Section 1595 gives rise to civil liability for whoever violates 18 U.S.C. § 1591 ("Section 1591"). The version of Section 1591(a) in effect in 2006-07 provided that: "whoever knowingly ... recruits, entices, harbors, transports, provides, or obtains by any means a person ... knowing that force, fraud, or coercion ... will be used to cause the person to engage in a commercial sex act ... shall be punished as provided in subsection (b)." The Complaint fails to establish the elements of a Section 1591(a) violation for at least the following six reasons. First, the Complaint fails to adequately plead that the Defendants used "fraud" to cause Plaintiff to engage in a commercial sex act. Second, the Complaint fails to allege that the Defendants used "coercion" to cause Plaintiff to engage in a commercial sex act. Third, the Complaint fails to establish that any alleged fraud or coercion "caused" the Plaintiff to engage in a commercial sex act. Fourth, the Complaint fails to adequately plead that "knew" that the Plaintiff would be caused by "fraud" or "coercion" to engage in a commercial sex act. Fifth, the Complaint fails to specify what provisions of the commercial sex trafficking While Plaintiff makes public accusations against the defendants that are designed to embarrass and harass, she makes these highly charged and scandalous allegations anonymously. As we noted in the Joint Rule 26(f) Report filed on April 5, 2017, Defendants object to Plaintiff's efforts to proceed in this matter naming the Defendants publicly but without disclosing her own identity. We do not believe that Plaintiff has rebutted the presumption of open court proceedings or met the strict standard required for proceeding anonymously. See, e.g., Doe v. Shaker, 164 F.R.D. 359 (S.D.N.Y. 1996). EFTA00285478 Brad Edwards, Esq. Steptoe cccot a toottsiTto tto May 15, 2017 Page 3 statutes it is relying on. Finally, the Complaint fails to meet the Twombly/Iqbal standard for pleading any claim in federal court. A. The Complaint Fails to Plead Fraud Plaintiff's claim that the Defendants used "fraud" to cause her to engage in a commercial sex act does not satisfy the pleading requirements for claims sounding in fraud. 1. The Complaint Fails to Satisfy Rule 9(b) Plaintiff bases her Section 1595 claims on the Defendants' supposed fraudulent statements and, as a result, the heightened pleading standards set forth in Fed.R.Civ.P 9(b) apply. Cohen v. SAC Trading Corp., 711 F.3d 353, 359 (2d Cir. 2013) (Rule 9(b) "standard also applies to allegations of fraudulent predicate acts supporting a RICO claim"). As the Second Circuit explained: Rule 9(b) requires that, in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. To satisfy the pleading requirements of Rule 9(b), a complaint must (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent. ... [A]lthough Rule 9(b) permits knowledge to be averred generally, we have repeatedly required plaintiffs to plead the factual basis which gives rise to a strong inference of fraudulent intent. Essentially, while Rule 9(b) permits scienter to be demonstrated by inference, this must not be mistaken for license to base claims of fraud on speculation and conclusory allegations. An ample factual basis must be supplied to support the charges. Wood v. Research Applied Associates, 328 Fed.Appx. 744, 747 (2d Cir. 2009); O'Brien v. Nat'l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir.1991). Plaintiff's allegations of fraud boil down to this: Epstein allegedly "confirmed to Plaintiff that he would use his wealth and influence to have Plaintiff admitted into but had no intention of doing so. Cplt. 11 37, 50, 53-55. This is insufficient to satisfy Rule 9(b). First, the Complaint fails to identify with particularity the "fraudulent statements" that Epstein o. are each alleged to have made to Plaintiff. Indeed, the Complaint only alleges that Epstein "confirmed" this representation, that 'confumed this promise to Plaintiff many times." and that the representation was "intentionally repeated." Cplt. r 37, 50. These EFTA00285479  Steptoe Brad Edwards, Esq. iitettn • 80.45014 Itl. May 15, 2017 Page 4 allegations fail to provide the particulars of what each Defendant said to Plaintiff on each occasion when each of the alleged misrepresentations was made. Second, the Complaint fails to identify with particularity that Epstein anawere the speakers of these alleged fraudulent statements. Indeed, the Complaint only alleges that Epstein and "confirmed" the statements, not that they made the statements. Cplt. ¶¶ 37, 50. The Complaint does not allege who actusll made the alleged statement that was allegedly confirmed by the Defendants. Indeed, as to there is no allegation that she ever spoke to or met with Plaintiff. Third, the Complaint fails to allege with particularity "where and when" the alleged fraudulent statements were supposedly made. Rather, the Complaint only alleges that Defendants allegedly "confirmed" and "repeated" supposed fraudulent statements "many times." Cplt. ¶q 37, 50. In addition to failing to meet the requirements of Rule 9(b), these allegations fall short of the basic fairness requirement, since Defendants are entitled to know when and where they supposedly made fraudulent statements to Plaintiff, especially given that Plaintiff has asserted a claim based on events that occurred over ten years ago. Fourth, the Complaint fails to alle with particularity how the fraudulent promises about Plaintiff's prospects for admission tc= if made at all, were fraudulent. The Complaint merely states in conclusory terms that the statements were "knowingly false" and "not acted upon." Cplt. ¶ 50. However, there are no factual allegations to support the assertion that the statements about the Plaintiff ant were false when made. Plaintiffs allegations that the Defendants did not act on the alleged promise is insufficient to show that the representation was false when made. Greenberg v. Chrust, 198 F.Supp.2d 578, 583 (S.D.N.Y. 2002) ("failure to fulfill a promise to perform future acts is not grounds for a fraud action" and "fraudulent intent cannot be inferred merely from the non-performance of a party's representations"). Finally, the Complaint fails to provide a factual basis, let alone an "ample factual basis," that would give rise to a "strong inference of fraudulent intent." Wood, 328 Fed.Appx. at 747; O'Brien, 936 F.2d at 676. The allegation that Epstein had no intention of following through on his alleged promises to assist Plaintiff in gaining admission tc= is merely conclusory, and does not satisfy the requirements of Rule 9(b). Greenberg, 198 F.Supp.2d at 583 ("fraudulent intent cannot be inferred merely from the non-performance of a party's representations"). Plaintiff has alleged no facts to support the contention that Epstein did not perform as he allegedly promised. Instead, the factual allegations state that Epstein promised and Plaintiff received generous support from Epstein, including "living quarters at on the Upper East Side of Manhattan, "a car service for Plaintiff to use as needed" and a "cell phone." Cplt. ¶ 49. These specific factual allegations do not support and, indeed, are wholly inconsistent with Plaintiff's conclusory assertion that Epstein had no intention of helping Plaintiff to gain admission a Accepting the allegations as true, they tend to demonstrate EFTA00285480 Brad Edwards, Esq. Steptoe May 15, 2017 Page 5 that Plaintiff was receiving support from Epstein in several respects and provide no hint of any prior intention of Epstein to withhold support in the specific area of Plaintiff's education. On a related note, the Complaint is utterly silent as to the date by which Epstein allegedly promised that the Plaintiff would be admitted t r some other comparable school. Not surprisingly, there is nothing in the Complaint w ic demonstrates that a specific promised deadline lapsed. Based on the foregoing, the Complaint fails to establish facts sufficient to infer that Epstein would not follow through on the alleged promises of assistance with admission toMM As tcaere is simply no allegation of fraudulent intent on her part or thaacnew that Plaintiff was engaged in a sexual relationship with Epstein in exchange for the alleged promises. In short, the Complaint fails to meet the pleading standards required under Rule 9(b) with respect to every element required to establish that Epstein and-made fraudulent statements. 2. The Complaint Fails for Lack of Reasonable Reliance The Complaint also fails to plead facts which establish that the Plaintiff reasonably relied on the misrepresentations allegedly made by the Defendants. In order to state a claim sounding in fraud, a plaintiff must plead, among other things, that she reasonably relied on the alleged misrepresentation. Crigger v. Fahnstock & Co., Inc., 443 F.3d 230, 234 (2d Cir. 2006). The Complaint does not meet this basic requirement. Instead, the Complaint merely states in conclusory terms that "Plaintiff reasonably relied" on the alleged misrepresentations. Cplt. 150. The Complaint, however, does not provide any factual support for this conclusion. In fact, the allegations in the Complaint support just the opposite. According to the Complaint, at the time the statement was made about Plaintiff's prospects for admission to the Plaintiff barely knew Epstein — she had been introduced to Epstein by yet another person whom she barely knew. Cplt. II 35, 37. That such a stranger would offer to "use his wealth and influence to have Plaintiff admitted to"M or a similar institution in exchange for sexual favors would cause any reasonable person, especially under the circumstances alleged in the Complaint, to question, rather than rely on, such a promise. Moreover, the Complaint fails to allege facts from which the Plaintiff might have reasonably concluded that Epstein had the ability "to have Plaintiff admitted to' For example, the Complaint fails to allege that Epstein was associated in any way wit Ashland Inc. v. Morgan Stanley & Co., 652 F.3d 333, 338 (2d Cir. 2011) (dismissing complaint where plaintiff could not have reasonably relied on defendant); Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 98 (2d Cir. 1997) ("circumstances may be so suspicious as to suggest to a reasonably prudent plaintiff that the defendant's representations may be false, and that the plaintiff cannot reasonably rely on those representations"). EFTA00285481  Brad Edwards, Esq. Steptoe ......•oosoisom to May 15, 2017 Page 6 " t ent In short, the Complaint fails to establish that Plaintiff reasonably relied on the alleged statements about her prospects for admission to that she attributes to Epstein and 3. The Complaint Impermissibly Lumps All Defendants Together The Complaint engages in rampant and impermissible "group pleading." It repeatedly attributes the same conduct and/or statement to all or multiple defendants without identifying which individual defendant engaged in the alleged conduct or made the alleged statement. Cplt. ¶¶ 33, 38, 44, 45, 49, 50, 51, 52, 54, 55, 56, 58. Since the asserted claim involves allegations of fraud, the Plaintiff's decision to lump all defendants in groups is insufficient to state a claim. Camofi Master LDC v. Riptide Worldwide, Inc., 2011 WL 1197659, at *6 (S.D.N.Y. Mar. 25, 2011) ("group pleading doctrine is an exception to the requirement that the fraudulent acts of each of the defendants be identified separately in the complaint," its application is "limited to group-published documents," and "does not apply to oral statements"); In re Braskem S.A. Sec. Litig., 2017 WL 1216592, at *20 (S.D.N.Y. Mar. 30, 2017) ("the Court has doubt whether the group-pleading doctrine remains good law"). A small sampling of Plaintiff's allegations which repeatedly and impermissibly lump all Defendants together amply demonstrates the insurmountable defects in her Complaint. First, the Complaint alleges that "Defendants recruited Plaintiff into their sexual enterprise," without identifying which defendant was involved and what individual action each defendant allegedly took to recruit Plaintiff. Cplt. ¶¶ 33. Second the Complaint alleges that "Defendants sent Plaintiff from the United States to in part to recruit" without specifying which defendant supposedly "sent" Plaintiff or communicated to Plaintiff what, if anything, she was supposed to do upon her arrival in Cplt. ¶ 51. Third, the Complaint alleges that "in addition to their requiring Plaints to prow e Defendant Epstein with sex acts, Defendants continued to pressure her to lose excessive amounts of body weight and offered her no opportunity to decline or resist their instructions." Cplt. ¶ 56. Yet, the Complaint does not state which defendants allegedly "required" Plaintiff to provide sex acts, "pressure[d]" her to lose excessive weight, or offered Plaintiff no opportunity to decline or resist these alleged demands. By engaging in this pattern of improper group pleading, the Complaint fails to state a legally sufficient claim, based on both theories of "fraud" and "coercion," against any one of the Defendants. 2 Assuming arguendo that Plaintiff's reliance on Epstein's representations was ever reasonable, her reliance certainly was not plausible by January 2007, when Plaintiff expressly acknowledged that she "did not believe" the Defendants. Cplt. ¶ 51. Her distrust of the Defendants renders her claim time-barred, as explained in detail below. Infra, pp. 10-12. EFTA00285482 Brad Edwards, Esq. Steptoe Pinot • JOMN{OM u. May 15, 2017 Page 7 4. Section 1591 Does Not Cover Garden Variety Fraud Congress enacted Section 1591 in order to "combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims." H.R. Conf. Rep. 106-939 (2000). Among other specific factual findings reached by Congress when it was drafting Section 1591, Congress found as follows: Traffickers lure women and girls into their networks through false promises of decent working conditions at relatively good pay as nannies, maids, dancers, factory workers, restaurant workers, sales clerks, or models. Id. Congress also found that additional legislation was needed to combat commercial sex engaged in by women lured to the United States by means of fraud. Id. Based on these factual findings, Congress enacted Section 1591 to prohibit sex trafficking "by means" of fraud. Id; 18 U.S.C. 1591(aX1). Based on this legislative history, and a clear reading of Section 1591, this statute was not designed to address the relationship which, according to the Complaint, the Plaintiff entered into with Epstein. The allegations in the Complaint do not establish that the Plaintiff was a victim of sex trafficking under Section 1591 or that she participated in commercial sexual acts as a result of a "fraud" perpetrated by the Defendants. First, there are no allegations that "traffickers lured [Plaintiff] into their network by false promises" of a job. Instead, Plaintiff alleges that, without the involvement of any of the Defendants, she traveled to the United States on her own volition and for reasons that appear to have nothing whatsoever to do with the Defendants. She then voluntarily associated herself with the Defendants and, accepting the truth of Plaintiff's allegations fully, engaged in sexual activity with Epstein because she perceived that Epstein could provide her with some advantage in gaining entrance to an institution of higher learning and because she was given living quarters on the Upper East Side of Manhattan, the use of a car service and a cell phone. These factual allegations do not demonstrate that she was a victim of fraud, much less a victim of sex trafficking requiring the protection of Section 1591. Second, to the extent that Epstein allegedly made promises to the Plaintiff that were not fulfilled in a timeframe that Plaintiff expected or wanted, these sorts of issues are a matter for resolution between these two adults who allegedly entered into an adult relationship. When enacting Section 1591, Congress did not evidence any intention to legislate the private relationship between two consenting adults. EFTA00285483 Brad Edwards, Esq. Steptoe May 15, 2017 Page 8 B. The Complaint Fails to Plead Coercion The Complaint fails to allege that the Defendants used "coercion" to cause the Plaintiff to engage in a commercial sex act. The statute defines coercion to include the following categories of conduct: (A) threats of serious harm to or physical restraint against any person; (B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or (C) the abuse or threatened abuse of law or the legal process. The Complaint simply fails to meet any of these three theories for establishing coercion. First, the allegations of coercion are unspecific and wholly conclusory, as exemplified by the allegations in paragraph 45 that "Defendants Epstein and Maxwell intimidated, threatened, humiliated and verbally abused Plaintiff in order to coerce her into sexual compliance. These Defendants threatened Plaintiff with serious harm, as well as serious psychological, financial, and reputational harm, with the purpose and effect of compelling Plaintiff to perform and continue performing the demanded commercial sexual activity." Cplt. ¶ 45. The Complaint does not allege a single specific factual instance where Epstein or made a "threat[] of serious harm to or physical restraint against" the Plaintiff. Indeed, the Complaint speaks of only one occasion where Plaintiff allegedly suffered unspecified "verbal abuse and threats" and, as a result, "attempted to escape from Defendant Epstein's private island." Cplt. ¶ 46. This single allegation taken as true does not establish that Plaintiff was subject to a threat of serious harm. And the fact that the Plaintiff was allegedly "returned" to the house on the island does not demonstrate that she was subject to "physical restraint." And there is nothing alleged in the Complaint that demonstrates that this isolated incident had anything at all to do with whatever sexual activity Plaintiff claims she engaged in. Second, the Complaint fails to establish that there was a "scheme, plan, or pattern" to cause Plaintiff to believe that she would be seriously harmed or restrained. Indeed, the Complaint is devoid of specific factual allegations concerning threats of physical harm, as discussed above. And, with respect to physical restraint, the Complaint alleges that Plaintiff traveled freely within the United States and abroad, and was provided with living quarters of her own on the Upper East Side of Manhattan as well as a car service and cellphone. Cplt. ¶¶ 49, 51, 57. Plaintiff alleges that, when Plaintiff was in where she held citizenship and where her parents resided, Epstein and Maxwell told her that "she would not be permitted to return to the United States to receive her promised education unless she lost weight." Plaintiff does not explain how any of the defendants would have any ability to deny her entry to the United States. Plaintiff has not alleged that any of the defendants held her travel documents or had any power to affect her ability to travel to the United States. To the contrary, the Complaint alleges that she traveled to and from the United States as she wished. Indeed, she admits that EFTA00285484 Brad Edwards, Esq. Steptoe May 15, 2017 Page 9 "she refused to perform the recruitment assignment" allegedly "demanded" by Epstein to find young females to serve in "sexual servitude." Cplt. 1 51. Yet, she was able to come back to the United Stat ere is no showing of any threatened "serious harm" had she chosen to remain in There is simply no "threat of serious harm" alleged. In any event, this isolated ega ion oes not establish the existence of a "scheme, plan or pattern" at all, much less a "scheme, plan or pattern" which would cause Plaintiff to believe she would be in serious harm or physical restraint if she did not engage in commercial sexual activity. Cplt. ¶ 5. Third, a withdrawal of support to gain admission toM or refusal to provide living quarters on the Upper East Side of Manhattan or a car service does not constitute "threats of serious harm." A withdrawal of such support would simply mean that Plaintiff would no longer have the desired life style or assistance for potential educational advancement as to which she had neither a legal right nor moral entitlement. Similarly, the supposed threat by Maxwell and Epstein that "they had the ability to make sure that they would obtain no formal education or contracts if she failed to provide sexual favors" is no threat at all. Cplt. 1 38. Plaintiff is not alleged to be a gullible person with diminished capacity, or uneducated or inexperienced socially. It is implausible for Plaintiff or any other reasonable person to perceive this as a realistic threat or to believe that defendants had such omnipotent ability. The pleading standard is not lowered simply because Epstein is alleged to be "rich and powerful." Fourth, the Complaint does not allege that the Defendants engaged in any "abuse or threatened abuse of the law or legal process" required by the statute. C. The Complaints Fails to Plead a Causal Link The Complaint fails to plead that the Defendants' alleged fraudulent and coercive conduct "caused" the Plaintiff to engage in a commercial sex act, as required under Section 1591. United States v. Marcus, 487 F.Supp.2d 289, 306-07 (E.D.N.Y. 2007), rev'd on other grounds, 538 F.3d 97 (2d Cir. 2008) (a violation of Section 1591 requires that a "commercial sex act ... be a product of force, fraud or coercion.") The Complaint fails to establish any linkage between the alleged promises of admission to FIT and criticism about the Defendants' weight and appearance, and any sexual act performed by the Plaintiff. Indeed, the clear implication of the Complaint is exactly the opposite. The Complaint can be fairly read to evidence that the Plaintiff, then aMyear old adult woman, was engaged in a consensual sexual relationship with Epstein, an unmarried adult man, on her own accord, which she was free to terminate at will. Her allegations of receiving financial support amount to nothing more than the claims of an adult girlfriend who received financial support from someone with whom she was in a romantic relationship. When she became dissatisfied with that relationship and decided to terminate it, as would properly be expected of any similar relationship, the financial support she received based on that relationship terminated as EFTA00285485 Brad Edwards, Esq. Steptoe ii.„.••,...„.• IL. May 15, 2017 Page 10 well. Whatever unfulfilled promises about an education at . and unwelcome criticism Plaintiff claims to have experienced, the Complaint makes clear that her sexual acts were not specifically the product of those two events. Finally, the sex acts alleged in the Complaint are not "commercial sex" acts, much less sex acts in violation of Section 1591. If they were, a significant percentage of the population likely would have engaged in commercial sex and violated the statute. In short, Plaintiff fails to establish the required causal link between the alleged fraud and coercion and her sexual conduct. She also fails to establish that she engaged in "commercial sex." D. The Complaint Fails To Allege Knowledge Against The Complaint fails to allege facts which establish that engaged in any conduct "knowing that force, fraud, or coercion ... will be used to cause [the Plaintiff] to engage in a commercial sex act " as required in Section 1591. Here, there are no specific factual allegations showing that knew that the Plaintiff was engaged in a sexual relationship with Epstein, much less that knew that Plaintiff was en in commercial sex caused by fraud or coercion. At bets . e allegations show that performed legitimate functions such as Cplt. ¶¶ 48. The conclusory allegations against are insufficient to show that she had the "knowledge" required for liability under Section 1591. E. The Complaint Fails to Specify the Particular Statutes Allegedly Violated The Complaint is also defective because it fails to specify the particular statutes and sections which were allegedly violated. Rather, it lumps together Sections 1591 through 1594, without specifying which of these particular statutes were violated and without providing factual bases for the alleged violations of the particular statutes. For example, while Section 1592 prohibits unlawful conduct with respect to immigration documents, the Complaint is bereft of any allegation concerning Plaintiff's immigration documents or status. Moreover, Sections 1593 and 1593A do not prohibit any conduct, let alone conduct that would give rise to a Section 1595 claim. Rather, those sections provide for the remedy of restitution and the penalty of a fine or imprisonment. These failings should result in a dismissal of the Complaint. Holmes v. Grubman, 568 F.3d. 329, 336 (2d Cir. 2009) (dismissing Complaint for failure to specify the particular sections of the statutes claimed to have been violated, explaining that such a failure "obstructed any analysis of whether plaintiffs' pleading stated a claim under Georgia's securities statute, insofar as the complaint tracks several of the statute's provisions"). At a minimum, the Complaint must specify the particular statutes and sections claimed to have been violated and the factual basis for the alleged violations which are necessary predicates for a civil recovery under EFTA00285486 Brad Edwards, Esq. Steptoe 44444COC • JOHNSON lt1 May 15, 2017 Page I I Section 1595. Defendants are entitled to know this basic information, so as to be able to analyze whether Plaintiff has stated a claim under the different sections of the statutes. Id. F. The Complaint Fails to Meet the Twomblv/kbal Standard The Complaint not only fails to meet the heightened pleading standards applicable to fraud based claims, it also fails to meet the more relaxed pleading standards set forth by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007) and Ashcroft v. Igbal, 129 S.Ct. 1937 (2009). These two decisions set forth the basic requirements for pleading a claim. As explained and applied by the Second Circuit: To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Wood, 328 Fed.Appx. at 747 (quoting Igbal, 129 S.Ct. at 1949). Here, at best, the Complaint merely parrots the statutory elements of a Section 1595 claim regarding fraud and coercion without specifically alleging the factual basis for those elements. As described in more detail, above, the Complaint fails to meet the Twombly/Igbal pleading standard. The Complaint, taken as a whole, does not plead a plausible claim that Plaintiff was a victim of sex trafficking in violation of criminal statutes entitling her to civil relief pursuant to Section 1595. Instead, the Complaint as a whole presents the Plaintiff as a consenting adult engaged in a voluntary relationship with Epstein whichelaided the Plaintiff with a remarkably comfortable life style and the prospects of help with h application. This is hardly the sort of relationship that this sex trafficking statute was designed to address. Moreover, the Complaint does not allege that Plaintiff was a minor, that she was uneducated or that she was inexperienced in the world. Rather, the absence of such allegations shows that Plaintiff was an educated adult who was experienced in the world and who freely chose to engage in the alleged sex acts set forth in the Complaint. Plaintiff's allegations of fraud and coercion are simply not plausible, and, as a result, the Complaint fails under the Twombly/Igbal pleading standard. EFTA00285487 Brad Edwards, Esq. Steptoe 6666601 M pMMIOM May 15, 2017 Page 12 IL The Claim Is Barred by the Statute of Limitations Plaintiffs claim is time-barred under either (a) the four-year statute of limitations applicable to claims that arose before the 2008 statutory amendment that extended the limitations period to ten years or (b) even the current ten-year statute of limitations period. Plaintiff's claim is barred by the four-year statute of limitations. According to the Complaint, the conduct giving rise to the claim allegedly occurred between October 2006 and April 2007, and Plaintiff "left the United States" in May 2007 and "did not return." Cplt. ¶¶ 33, 57. This action was not commenced until January 27, 2017, more than four years after any of the events alleged in the Complaint occurred. Plaintiffs claim is therefore time-barred. Abarca v. Little, 54 F.Supp.3d 1064, 1068 (Minn. 2014). As the Court stated in Abarca, a claim under Section 1595 had a four-year of statute of limitations when originally enacted. The statute was amended in December 2008 and the limitations period was extended to ten years. Id. However, "Congress did not expressly state or otherwise indicate that the [statute's] limitations period applies retroactively." Id The plaintiff in Abarca, like Plaintiff here, filed the Section 1595 claim after the statute was amended to provide for a ten-year statute of limitations. Applying the well-established presumption against retroactive legislation, the Court in Abarca determined that the ten-year statute of limitation did not apply because the alleged wrongful conduct occurred before the statute of limitations was amended. Id. at 1069. The Court therefore applied the four- year statute of limitations and dismissed the Section 1595 claim because it was filed more than four years after the alleged wrongful acts. Id. Here, all events alleged in the Complaint ended in 2007, before the 2008 amendment extending the limitations period from four to ten years was enacted. As a result, the four-year statute of limitations applies. Plaintiff's claim, filed in January 2017 and more than four years after the events described in the Complaint, is time-barred. Even if the ten year statute of limitations applies, Plaintiff's claim is still time-barred. Plaintiff admits in her Complaint that, when she traveled to in January 2007, she no longer trusted the Defendants. In fact, Plaintiff alleges that she knew she was being asked to recruit "female from who would not be placed in legitimate positions, but would instead "be forced into sex servitude." Cplt. ¶ 51. Plaintiff has expressly acknowledged in the Complaint that, as of January 2007, "she did not believe that the requested would be placed in a legitimate position of employment with Defendant Epstein but would, instead, be forced into sexual servitude." Id. Clearly, by January 2007, Plaintiff could no longer claim to be reasonably relying on Defendants' representations about, for example, gaining admission to. Because Plaintiff's claim admittedly turns on whether she was defrauded and coerced, the statute of limitations period on her Section 1595 claim commenced to run no later than January 2007 and expired before the Complaint was filed on January 27, 2017. Moreover, since Plaintiff left the United States in January 2007 and went to where she held citizenship and where her parents reside, any arguable coercion terminated at that EFTA00285488 Brad Edwards, Esq. Steptoe S11•104 A IOHNSOk r May 15, 2017 Page 13 time. Cplt. ¶ 53. There is nothing to support the contention that the Defendants engaged in coercion to procure sexual acts from the Plaintiff. Plaintiff was under no compulsion whatsoever to return to the United States or to continue her alleged association with Defendants. In fact, she admits that she freely "refused to perform the recruitment assignment" alleged "demanded" of her to find females to serve in "sexual servitude." Cplt. ¶ 51. By her own admission, whatever "coercion" defendants mi t have had on Plaintiff ceased at that time. Moreover, she could have chosen to stay in Her alleged further association with Defendants when she returned to New York inFebruary 2007 was purely the voluntary action of an adult, as were all of her other actions. Si ificantly, Plaintiff alleges no threat to her since February 2007 when she returned fro She merely alleges that she "knew" what Maxwell and Epstein might do, not what Maxwell or Epstein actually said or did. Cplt. ¶ 54. Since no act of coercion occurred within ten years before the lawsuit was filed on January 27, 2017, Plaintiffs claim is time-barred. The assertions that Defendants defrauded her or coerced Plaintiff into commercial sex when she returned to the United States in February 2007 are wholly insufficient as a matter of law. Although the Complaint repeats some of the same conclusory and vague allegations relating to the earlier period outside of even the 10-year statute of limitations, it again provides none of the specific factual allegations necessary to establish what Epstein or=actually did during that limitations period to violate the statute. III. The Court Does Not Have Jurisdiction Over Defendants The Complaint alleges without elaboration that Defendants are residents of New York. Cplt. 4, 8. However, the Complaint alleges no facts to support this assertion. in fact, ¶¶ as you know, you cannot support these allegations of ties to New York. As we believe you know, E stein is domiciled in the U.S. Virgin Islands and is domiciled in Indeed, you attempted to serve at her residence in not New Yor . As a result, personal jurisdiction over the Defendants would have to be based on tortious conduct allegedly committed in New York. CPLR 302(a)(2). As explained below, however, there are insufficient allegations of tortious conduct during the limitations period upon which Plaintiff can base personal jurisdiction, even if the ten year limitations period were to apply, which Defendants maintain it does not. Because the Complaint was filed on January 27, 2017, all of the conduct alleged to have occurred before February 2007 falls outside of even the ten year limitations period. The Complaint, however, does not allege conduct after Plaintiff left foi in January 2007 that can be fairly said to be subject to a Section 1595 claim, as discussed in detail above. C It. ¶¶ 53-56. Indeed, the Complaint does not mention at all after Plaintiff left for in January 2007. Moreover, there are no allegations regarding the whereabouts of e e en ants during that time period. The allegations concerning this period merely track the statutory language but without providing the necessary factual support. The Complaint, therefore, fails to establish that the Court has personal jurisdiction over Epstein and... EFTA00285489  Steptoe Brad Edwards, Esq. ""1 0! • JOHNSON WO May 15, 2017 Page 14 IV. Venue Is impropeth I aid in the Southern District of New York For the same reasons that the Court lacks personal jurisdiction over the Defendants, the Southern District of New York is not the proper venue for this action. The applicable venue statute, 28 U.S.C. § 1391(b)(2), requires that "a substantial part of the event or omission giving rise to the claim occurred" within the Southern District of New York. This fundamental element is not met here. The conduct alleged occurred outside of the statute of limitations period and cannot form the basis of either a claim or venue. For all of the reasons set forth, above, this case lacks merit and should be dismissed no matter where it is filed. Having said that, and as you know, Epstein resides in the U.S. Virgin Islands, where the court has personal jurisdiction over him. Moreover, the other Defendants are all located in states other than New York and no significant part of the events within the statute of limitations period occurred in New York. Thus, were the P intiff able to articulate a sustainable claim against the Defendants, pursuant to 28 U.S. 1391(b)(3), the only proper venue in which to litigate this matter would be in the U.S. V lands. y Michael C. Miller EFTA00285490