060.pdf

NOT A CERTIFIED COPY JEFFREY EPSTEIN Plaintiff, V. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and L.M., individually, Defendants. ___________ / IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50 2009CA040800XXXXMB AG -- •.. :.: :·-) MOTION TO STRIKE AFFIDAVIT OF SCOTT ROTHSTEIN Plaintiff, JEFFREY EPSTEIN ("Epstein"), move to strike the affidavit of Defendant, Scott Rothstein filed in support of his Motion to Set Aside Default, and states: 1. Epstein filed the instant action against Rothstein and others on December 9, 2009. 2. Rothstein was the former Chairman and CEO of the now defunct law firm, qothstein, Rosenfeldt & Adler, P.A. ("RRA"). Rothstein was indicted and pied guilty to five counts including racketeering, money laundering and fraud related to a massive Ponzi scheme he conducted through RRA. 3. On December 14, 2009, Rothstein was served with the summons and Complaint in this action. 4. On December 31, 2009, Epstein filed a Motion for Default due to Rothstein's failure to respond to the Complaint. 5. A default was entered by the Clerk on January 21, 2010. NOT A CERTIFIED COPY 6. Rothstein filed a Motion to Set Aside Default on February 17, 2010. 7. On March 8, 2010, Rothstein filed an affidavit in support of his Motion to Set Aside Default (attached as Exhibit A). 8. On March 9, 2010, a hearing was conducted on Rothstein's Motion to Set Aside Default and the Court deferred ruling so the parties could conduct discovery related to the motion (3/9/10 Order attached as Exhibit B). 9. The Court re-set the hearing on Rothstein's Motion to Set Aside Default for April 30, 2010. 10. Epstein set the deposition of Rothstein to occur on April 15, 2010 (notice attached as Exhibit C). 11. On April 9, 2010, Mark Nurik, counsel for Rothstein, wrote the undersigned essentially stating that he could not produce Rothstein for deposition because he is detained in the Federal Bureau of Prisons (correspondence attached as Exhibit D). 12. Mr. Nurik directed the undersigned to coordinate Rothstein's deposition with U.S. Attorney Paul Schwartz. As Rothstein's counsel, Mr. Nurik is in a far better position to work with Mr. Schwartz to produce Rothstein for deposition. Indeed, Mr. Nurik was able to provide Rothstein with his affidavit and obtain his notarized signature despite his detention in prison. 13. On the other hand, Epstein's counsel has contacted U.S. Attorney Schwartz via letter and telephone to attempt to coordinate Rothstein's deposition, but to no avail. 2 NOT A CERTIFIED COPY 14. Since it appears that Epstein will not have the opportunity to depose Rothstein relative to his affidavit prior to the April 30, 2010 hearing, Epstein requests the Court strike said affidavit. 15. It would be inequitable to permit Rothstein to rely on his self-serving affidavit without Epstein having the ability to question Rothstein relative to same. 16. The Court specifically deferred ruling on the Motion to Set Aside Default so the parties could "conduct discovery relative to this motion." See Exhibit B. 17. Epstein, through no fault of his own, has been prohibited from conducting said discovery. The Court should not consider Rothstein's affidavit in a vaccum in determining Rothstein's Motion to Set Aside Default and therefore requests the Court strike said affidavit. 18. In Jordan v. Statement Farm Ins. Co., 515 So. 2d 1317, 1319 (Fla. 2d DCA 1987), the court struck plaintiff's affidavit in opposition to defendant's summary judgment. The Second District Court of Appeals concluded that "it [was] evident that the statements in the affidavit contradict the testimony in deposition and [ ] the trial court was correct in striking the affidavit." 19. Here, Epstein does not even have the opportunity to elicit testimony from Rothstein relative to his affidavit. Admission of the affidavit "is a matter within the sound discretion of the court." See West Town Plaza Associates, Ltd. v. Pines Properties, inc., 600 So. 2d 477, 478-79 (Fla. 4th DCA 1992); Scott v. NCNB Nat'I Bank of Fla., 489 So. 2d 221, 223 (Fla. 2d DCA 1986). 20. For the foregoing reasons, the Court should strike Rothstein's affidavit. 3 NOT A CERTIFIED COPY WHEREFORE, Defendant, JEFFREY EPSTEIN, respectfully requests the Court strike the affidavit of Defendant, SCOTT ROTHSTEIN, in support of his Motion to Set Aside Default and grant any additional relief the Court deems just and proper. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was sent by fax and U.S. Vlail to the following addressees on this 15th day of April , 2010: Gary M. Farmer, Jr., Esq. Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, PL Jack Alan Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South 425 N. Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 954-524-2820 954-524-2822 - fax Attorneys for Defendant, L. M. Jack Scarola, Esq. Suite 1400 West Palm Beach, FL 33401-5012 Fax: 561-835-8691 Co-Counsel for Defendant Jeffrey Epstein Law Offices of Marc S. Nurik Searcy Denney Scarola Barnhart Shipley, P.A & Counsel to Scott Rothstein One East Broward Boulevard, Suite 700 Fort Lauderdale, FL 33301 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409 686-6300 383-9424 F (954) 7 45-5849 (954) 7 45-3556F Attorneys for Defendant Bradley Edwards BURMAN, CRITTON, LUTTIER & COLEMAN, LLP 303 Banyan Boulevard Suite 400 West Palm Beac , FL 33401 (561) 842-2 (561)253-6 R D. Critton, Jr. lorida Bar #224162 Michael J. Pike Florida Bar #617296 David A. Yarema Florida Bar #12492 (Counsel for Defendant Jeffrey Epstein) 4 NOT A CERTIFIED COPY JEFFREY EPSTEIN, Plaintiff, vs. SCOTT ROTHSTEIN, BRADLEY J. EDWARDS, and LM, Defendants. --------------'/ IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2009 CA 040800 XXXXMB HONORABLE JUDGE DAVID F. CROW AFFIDAVIT OF SCOTT W. ROTHSTEIN IN SUPPORT OF MOTION TO SET ASIDE DEFAULT STATE OF FLORIDA ) ) ss.: COUNTY OF ) Before me, the undersigned authority, personally appeared, SCOTT W. ROTHSTEIN, who after being by me first duly sworn, on oath, deposes and states as follows: 1. I am a Defendant in the above-captioned matter. 2. I did not respond to the Summons and Complaint in this lawsuit because I did not have knowledge of its existence until February, 2010. In February 2010, I learned that this lawsuit was filed against me and that a default judgment had been entered against me for failure to respond. 3. From December I, 2009 until March I, 2010, I was detained at the Federal Detention Center in Miami, Florida 1 . 1 On March 1, 2010, I was transferred to the Port St. Lucie jail. FTL:1661522:1 EXHIBIT j}__ NOT A CERTIFIED COPY 4. During that time frame I was pulled out of my cell many times by the Bureau of Prisons staff to receive service of lawsuits at all hours. 5. Inasmuch as the Bureau of Prisons rules and regulations do not allow a prisoner to hand any documents to any visitors, including counsel, upon service of various lawsuits, I simply informed my attorney who would then look up the case with the appropriate court and contact the attorney for the plaintiff(s) in such cases and/or take whatever appropriate action was necessary. 6. To the best of my knowledge and belief, I do not recall being served with this lawsuit. If I was properly served with this lawsuit, it has been misplaced within the pile of numerous lawsuits and voluminous amount of other legal papers and has not been located. Even to date, I have not located the Complaint or Plaintiffs Motion for Default. 2 7. I state in good faith that if I had actual knowledge of this lawsuit I would have advised my attorney as I have done with various other lawsuits curre