EFTA00724269.pdf

Page 1 Page 3 IN THE CIRCUIT COURT OF THE 15714 JUDICIAL CIRCUIT IN 1 PROCEEDINGS AND FOR PALM BEACH COUNTY, FLORIDA 2 --- CASE NO. 501009CA040800XXXXMB AG 3 THE BAILIFF: All rise. Court is now in 4 session. The Honorable David Crow presiding. Jeffrey Epstein, 5 MR. CRITTON: Good morning. Plaintiff. 6 MR. SCAROLA: Good morning, Judge. SCOTT ROTHSTEIN, individually, 7 THE WITNESS: Were here on Epstein versus BRADLEY J. EDWARDS, individually, 8 Rothstein, et al. So, I've read the materials and L.M. individually, Defendants. 9 you guys submitted on both sides and also read / 10 the counterclaim. HEARING BEFORE. THE HONORABLE 11 MR. SCAROLA: Thank you. We rest. DAVID F. CROW 12 MR. CRITTON: When he tries to talk, PLAINTIFFS MOTION FOR JUDGMENT ON THE PLEADINGS OR 13 remember that, Judge Crow. IN THE ALTERNATIVE A MOTION FOR SUMMARY JUDGMENT 0114 THE COURT: Go ahead. THE COUNTERCLAIM 15 MR. CRITTON: May it please The Court. 16 Your Honor, Bob Critton on behalf of Tuesday, May II, 2010 17 Mr. Epstein. Palm Beach County Courthouse West Palm Beach, Florida 31401 18 Basically ifs a motion for judgment on 8:15 - 8:32 am. 19 the pleadings or in the alternative a motion 20 for summary judgment on the counterclaim. I 21 think it's more appropriately a summary Reported By: 22 judgment than it is a claim for a judgment on Cynthia Hopkins, RPR, FPR Notary Public, State of Florida 23 the pleadings. Prose Court Reporting 24 Mr. Edwards argues through his counsel Job No . 1783 25 that, in essence, Mr. Epstein's a bad person. Page 2 Page 4 APPEARANCES: 1. So no matter what happens in any case, 2 On behalf of the Plaintiff: 2 Mr. Epstein loses. It's a consistent argument 3 ROBERT D. CRITTON, JR, ESQUIRE 3 I hear all the time. The good part about it is 4 BURMAN, CRITTON, LUTTIER & COLEMAN, LLI' 4 we get to apply the law to the facts of the 303 Banyan Boulevard 5 case and therefore, I think that very clearly 5 Suite 400 6 my client is entitled to a summary judgment. West Palm Beach, Florida 33401 6 Phone: 561.842.2820 7 The reasons there are as follows: And I 7 8 am going to touch first a little bit on the 8 On behalf of the Defendants: 9 response because they claim that there is 9 JACK SCAROLA, ESQUIRE 10 additional discovery to be done, but they don't SEARCY, DENNEY, SCAROLA, 10 BARNHART & SHIPLEY, P.A. 11 identify any discovery that they wish to do. 2139 Palm Beach Lakes Boulevard 12 The depositions of Mr. Edwards have been take:.. 11 West Palm Beach, Florida 33409 13 It has not been completed because we have a Phone: 561.686.6300 14 motion to compel which is set in front of The 12 13 15 Court or at least we filed. The deposition of 14 16 Mr. Epstein is done. 15 17 No doubt neither portion of Mr. Edwards 16 18 nor of Mr. Epstein's affidavits were filed. 17 18 19 There is no deposition testimony of any kind 19 20 opposing that says that somehow Mr. Epstein was 20 21 using the process; that is, the complaint 21 22 post-filing for the purposes for a bad purpose 22 23 23 which is the key legal issue in all of these 24 24 cases; that is, something has to occur after 25 25 the issuance of process, nor have any 1 (Pages 1 to 4) (561) 832-7500 PROSE COURT REPORTING AGENCY, INC. (561) 832-7506 Electronically signed by cynthia hopkins (601-0614764934) 1711dtte99-3413•48314360.213afab2oe454 EFTA00724269  Page 5 Page 7 1 affidavits been filed. 1 denied error in granting summary judgment. 2 The key portions or the operative portions 2 There is nothing to suggest that anything 3 of the allegations in the complaint directed to 3 occurred post-filing. 4 my client in the counterclaim are really 4 And they go down and they cite relying on 5 Paragraphs 9, 10, and II. And the key is the 5 McMurray versus U-Haul which is the Fourth 6 action was filed for the sole purpose to 6 District case, which holds that the mere filing 7 intimidate Edwards into settling these cases. 7 of a complaint and having process served is not 8 In Paragraph 10 they talk about there is a 8 enough to show abuse of process. The trial 9 lack of notice under the criminal, tinder the 9 court properly found that Russell showed — and 10 Civil Theft Statute 772.11. One, we think it's 10 again this is in the McMurray case — the 11 not applicable. Two is we don't think notice 11 non-existence of a genuine issue of material 12 is required. It's part of the -- that is, it 12 fact and dispute. Furthermore Russell 13 doesn't go to the issue of the motion for 13 established that Della-Donna failed to allege 14 summary judgment. 14 and there was no evidence of any act by Russell 15 Secondly, there is no 772.11 claim in the 15 which constitutes a misuse of the process after 16 case. The closest thing to it is the 772.103 16 it was served. 17 and 104 claim that has been filed, therefore, 17 And again if you want, the court goes to 18 it is not applicable. 18 the McMurray case, the heart of the McMurray 19 And in Paragraph 11 of the counterclaim 19 case which is the Fourth DCA case at Footnote 20 they say: Epstein has ulterior motives and 20 2, I'm sorry, Keynote 2. But within the 21 purposes in exercising such illegal, improper, 21 confines of the case they describe the 22 or perverted use of the process. 22 allegations, abuse of process. Then they go on 23 In this particular instance, as I 23 and they talk about why it's not applicable and 24 indicated I think that — of course, well, you 24 they say, abuse of process — and they talk 25 are familiar with the summary judgment 25 about: In essence the alleged that the Page 6 Page 1 standard. 1 won't belabor that issue, but the 1 appellee's complaint had been filed and summons 2 key issue is there any evidence by Mr. Epstein, 2 issued for a multitude of improper purposes, to 3 of anyone that Mr. Epstein was using the 3 bankrupt Mr. McMurray, to coerce him to pay 4 process or using the lawsuit post-filing of the 4 monies, to coerce settlement, to coerce 5 lawsuit; that is, other than the filing the 5 concessions from him and appellee's competitor, 6 lawsuit for a wrongful purpose or for a 6 to bankrupt a competitor to get back at him, 7 wrongful act. And in this instance the 7 all of these parade of horribles under these 8 allegations of the counterclaim, and again, the 8 circumstances. 9 complete lack of any supporting affidavit 9 And they said: As we discussed 10 indicates, affidavits or testimony, indicates 10 hereinafter, this parade of horribles may well 11 that there is absolutely no evidence in that 11 sustain an ultimate action against appellee for 12 regard. 12 malicious prosecution should it not prevail on 13 The two key cases I believe that are 13 its complaints against the appellants. 14 applicable here are the McMurray case versus 14 However, all appellee has done is file a 15 U-Haul which we have cited, 425 So.2nd 1208; 15 complaint and have process served upon 16 and the Della-Donna case which is 512 So.2nd 16 appellee. Abuse of process in this case 17 1051. Within the Della-Donna case there were 17 requires more; namely, an act which constituted 18 claims for malicious prosecution. And it's a 18 misuse of the process after it was issued. 19 Fourth District, so I am going to go to that 19 There is no such allegation of a post-issuance 20 case first. 20 act other than service of what was issued under 21 They sued for malicious, Mr. Della-Donna 21 the circumstances. 22 sued for malicious prosecution, abuse of 22 And it goes on and describes abuse of 23 process, and liable. And at page, at the 23 process. In Am.Jur. it stays: An abuse of 24 Footnotes 5, 6, and 7 doaling with the abuse of 24 process differs from an action for malicious 25 process claim, the court said the trial court 25 erosecution and that the later is concerned —......,... .—,...... 2 (Pages 5 to 8) (561) 832-7500 PROSE COURT REPORTING AGENCY, INC. (561) 832-7506 Electronically signed by cynthia hopkins (601-0614764934) 176dkk99.34be-4e31•b350.28atab2ao454 EFTA00724270  Page 9 Page 11 1 with maliciously causing process to issue, 1 It is not our obligation to come forward at this point to demonstrate that all of the I 2 while the former is concerned with the improper 2 3 use of the process after it has been issued. 3 allegations of the complaint can, in fact, be 4 My last point, Your Honor, is they cite a 4 substantiated. It is the burden of the moving 5 case called Scozari, and within the Scozari 5 party, and I am telling the Court something 6 case it involved abuse of process involving 6 that the Court is well aware of, but it's his 1 extortion. The difference in that case and 7 burden to demonstrate that those allegations 8 what that case turned on is Scozari, within the 8 cannot be substantiated by competent evidence. 9 confines of the case, testified that he was 9 The only depositions that have been taken 10 using the lawsuit as a bargaining chip to 10 in this case are the depositions of Mr. Epstein 11 resolve a collateral custody dispute. So he 11 and the depositions of, and the deposition of 12 testified within the case: I am using this 12 Mr. Edwards. Mr. Epstein did what Mr. Epstein 13 case as a bargaining chip. 13 has been doing and knew he would do at the time 14 So, what he is doing with that process 14 of filing of this complaint; and that is, he 15 after it is issued is to use it as a bargaining 15 refused to provide absolutely any substantive 16 process within the custody case. And the 16 information about anything and asserted his 17 second aspect is he also was trying to get a 17 Fifth Amendment privilege. There is no 18 lien imposed post-service of process or service 18 substantive evidence from Mr. Epstein at all. 19 of process itself. 19 THE COURT: What is the case that you are 20 So very clear in Scozari, which cites 20 relying upon? I mean, I am familiar with the 21 again back to Della-Donna and it cites to 21 general proposition that abuse of process as 22 McMurray is there was something that occurred 22 compared to malicious prosecution, it is not a 23 after the issuance. And I think based on, 23 matter of whether the case has merit to begin 24 based upon at least the facts as they exist at 24 with but there is something after the filing of 25 this point, there is no basis for the abuse of 25 the suit for which you're seeking something Page 10 Page 12 1 process cause, cause of action which is the 1 that is for improper purpose. 2 only cause of action pled. And we're entitled 2 Do you understand what I am saying? And 3 to a summary judgment and it's a matter of law. 3 like if you sued, if even though the lawsuit 4 Thank you. 4 may have collateral effect in doing something, 5 THE COURT: Thank you. Yes, sir. 5 ifs not necessarily the fact that you filed 6 MR. SCAROLA: Good morning, Your Honor. 6 the lawsuit It may be a malicious prosecution 7 THE COURT: Good morning. 7 if it is thrown out, but it doesn't constitute 8 MR. SCAROLA: Your Honor, this case 8 an abuse of process. Abuse of process, you 9 presents a very clear issue for determination 9 file a suit and then as a part of that suit, 10 by the Court. If there is a factual and legal 10 you issue some kind of subpoena to somebody in 11 basis for the filing of an action, then the 11 order to force them to stop prosecuting a 12 existence of an improper motive does not 12 criminal procedure. 13 provide the basis alone for the filing of an 13 MR. SCAROLA: Those are the cases that the 14 abusive process case. If, however, there is no 14 Counter-Defendant relies upon and has cited to 15 factual basis and no legal basis for the filing 15 the Court. 16 of a cause of action, and the issuance of 16 THE COURT: Right. 17 process is done without any reasonable 17 MR. SCAROLA: The case upon which we rely 18 justification for the purpose of accomplishing 18 is the Scozari case and the Miami Herald 19 some extortionate objective, then the case law 19 Publishing Company versus Ferre case. They are 20 says there is an abuse of process. 2O cited in our memo. And the holding in Scozari 21 Now, discovery in this case has not been 21 that is instructive here is -- this is a Third 22 completed. The issuance of a summary judgment 22 DCA case: If there was a reasonable basis in 23 under these circumstance would clearly be 23 law and fact to initiate the judicial 24 premature, and Mr. Critton has reversed the 24 proceedings, then processes were justified even 25 burden ofProof on a summary iudgment matter. 25 though they may have served some other 3 (Pages 9 to 12) (561) 832-7500 PROSE COURT REPORTING AGENCY, INC. (561) 832-7506 Eisetronleally signed by eynthim bodkins (001.051.9704934) 1760•9944bewits31-146048afebbie464 EFTA00724271  Page 13 Page 15 1 collateral purpose. And the court talks about 1 effort to try to intimidate those Plaintiffs 2 the fact that the purpose may have been 2 who are suing Mr. Epstein and the lawyers who 3 entirely improper, but if you had a reasonable 3 are bringing those suits, letting them know 4 basis for filing the claim, no abuse of 4 that this very wealthy individual is willing to 5 process. 5 stop at nothing in order to try to deter them 6 The important part for our purpose today 6 from pursuing their just claims. 7 is the qualification of that statement. The 7 So,1 suggest to you that these facts are 8 court says: However, if there was no 8 extraordinary. They are unique. And they fall 9 reasonable basis in law and fact to bring the 9 well within the recognized exception to the 10 action, and in this case it was to impress a 10 general rule upon which the Counter-Defendant 11 lien upon property, and this was done without 11 is relying and seeking summary judgment. 12 any reasonable justification under the law and 12 THE COURT: Okay. Thank you. Briefly, I 13 to force and to compel the appellant to resolve 13 have another hearing. Thirty seconds, 14 some custody dispute, induce the appellant to 14 Mr. Critton. 15 pay money, or tie up the appellant's property, 15 MR. CRITTON: That should be more than 16 then there has been an abuse of process simply 16 enough for a rare occasion. 17 by the filing of the complaint itself. 17 THE COURT: Seldom enough for you. 18 THE COURT: And you have alleged in your 18 MR. CRITTON: There is no discovery, again 19 complaint that there is absolutely no evidence 19 Plaintiffs counsel or Mr. Scarola has told you 20 to support these, and therefore are false 20 no discovery that needs to be done under the 21 assertions? 21 circumstances. lie has filed nothing in 22 MR. SCAROLA: Yes, sir. That allegation 22 response. 23 specifically appears in the complaint, no 23 Look at the Scozari case because I think 24 reasonable basis whatsoever, an expectation 24 if the Court looks at that case, there is no 4 25 that he was going to assert his Fifth Amendment 25 exception to the rule what Scorsese -- it's not Page 14 Page 16 1. right and could not possibly support this 1 Martin Scorsese -- what Scozari says is it says 2 claim. 2 there is no abuse of process however when the 3 THE COURT: And the burden now would be on 3 process is used to accomplish the result for 4 him to show that there was some basis for it 4 which it was created, i.e., filing a lawsuit 5 rather than you to show -- 5 for damages which it has done, regardless of an 6 MR. SCAROLA: That's our position. That 6 incidental or concurrent motive or spite or 7 is what it comes down to. And he has failed to 7 ulterior purpose. 8 meet that burden particularly as he has 8 It goes on and on and Headnote 8 and not 9 acknowledged the only discovery in this case is 9 the headnote but the actual facts, and it says 1.0 basically no discovery at all. 10 this case is different. it is not an exception 11 When he took Mr. Edwards' deposition for 11 to the rule. The rule is the rule. But this 12 purposes we contend of simply trying to get 12 case is different because they filed testimony 13 discovery in this case that he would not have 13 of Scozari, of Barone (phonetic). 14 been permitted to get in the underlying actions 14 THE COURT: Which showed his purpose to be 15 that Mr. Edwards is prosecuting, Mr. Edwards 15 to do something other than the purpose for 16 appropriately asserted attorney-client 16 which the lawsuit was filed. 17 privilege and work-product privilege. 17 MR. CRITTON: Correct 18 This lawsuit, and if you look at the 18 THE COURT: Okay. 19 allegations of the complaint, it's full of 19 MR. CRITTON: I am using it as a 20 speculation about things that Mr. Edwards may 20 bargaining chip. 21 have done because there is no evidence that 21 THE COURT: Okay. Stay with me. He has 22 Mr. Edwards ever did anything wrong at all. 22 alleged that. Okay. He has alleged that. He 23 This lawsuit was nothing but a press 23 has alleged exactly what you just said the 24 release under the cloak of the immunity that 24 testimony was in that case. 25 attaches to the filing of a complaint, and an 25 MR. CRITTON: Okay. Butt - 4 (Pages 13 to 16) (561) 832-7500 PROSE COURT REPORTING AGENCY, INC. (561) 832-7506 Electronically signed by cynthia hopkins (607.061.976.2934) 176dtie99-34be-4x31-b350-2Safab2ae4154 EFTA00724272  Page 17 Page 19 1 THE COURT: It's your motion. It's your 1 CERTIFICATE 2 burden to show that's not true; not his burden 2 3 to show it is true. 3 STATE OF FLORIDA 4 MR. CRITTON: But the cases say if they 4 COUNTY OF PALM BEACH 5 allege an ulterior purpose; Mr. Epstein filed 5 6 this case for an ulterior purpose. 6 7 THE COURT: Mr. Critton, you're 7 I, Cynthia Hopkins, Registered Professional 8 misunderstanding me. What he is saying is that 8 Reporter and Florida Professional Reporter, State o: 9 you not, did not file it for an ulterior 9 Florida at large, certify that I was authorized to 10 purpose. The whole purpose here is you had no 10 and did stenographically report the foregoing 11 basis for filing this suit. That's what he is 11 proceedings and that the transcript is a true and 12 complete record of my stenographic notes. 12 saying, which is the same thing as if he had 13 Dated this 26th day of May, 2010. 13 your client say under oath, I did this for no 14 14 other purpose than to, this, just like in that 15 15 case. And it's your obligation at summary 16 16 judgment to come forward and say, no, that's Cie " ' 41-1 Cynthia Hopkins, RP 17 not true. 17 18 MR. CRITTON: I disagree, Your Honor, 18 Job #1783 19 because under the circumstance what these cases 19 20 say, if the case was filed for its apparem Y0 21 purpose with the four causes of action -- 21 22 THE COURT: That's not what it says. 22 23 That's not what his complaint says. 23 24 Mt CRITTON: Well, of course. It says 24 25 it's filed for an ulterior purpose. 25 Page 18 1 THE COURT: No. no, no, no. He says more 2 than that. He says there is no, absolutely no 3 factual basis for it therefore there can be no 4 legitimate purpose for it. 5 MR. CRITTON: But under those 6 circumstances, there has been no motion to 7 dismiss. He doesn't come in and argue that 8 under the circumstances, Judge. And under that 9 set of circumstances, every case would be is 10 there is really no factual basis for it under 11 those circumstances. 12 THE COURT: I'm not sure. I will go back 13 and look at these cases again. Do you-all have 14 a proposed order? 15 MR. SCAROLA: I have a blank order. 16 THE COURT: I do understand the issue and 17 I am going to look at the Scozari case. 18 MR. CRITTON: Scozari. 19 THE COURT: Whatever it is. 20 MR. SCAROLA: S-c-o-r-a-z-l. 21 THE COURT: I understand you, Mr. Critton. 22 I have been there before. I understand the law 23 issue, but I am going to look at this case. 24 MR. CRITTON: All right. 25 (The hearing was concluded.) 5 (Pages 17 to 19) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hooking (601.051.976.2934) 175d8099-34be-4a31-12350-28afab2.4454 EFTA00724273