EFTA01076581.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50 2009CA040800XXXXMB AG JEFFREY EPSTEIN Plaintiff, v. SCOTT ROTHSTEIN, individually, BRADLEY J. ED DS, individually, and M., individually, Defendants. EPSTEIN'S MOTION FOR JUDGMENT ON THE PLEADINGS OR ALTERNATIVE MOTION FOR SUMMARY JUDGMENT ON EDWARDS' COUNTERCLAIM FOR ABUSE OF PROCESS Plaintiff/Counter-Defendant, JEFFREY EPSTEIN ("Epstein"), pursuant to Fla. R. Civ. P. 1.140(c), moves for judgment on the pleadings or, alternatively, moves for summary judgment pursuant to Fla. R. Civ. P. 1.510(b), on the Counterclaim for abuse of process filed by Defendant/Counter-Plaintiff, Bradley J. Edwards ("Edwards"), and states: Background and Procedural Posture 1. On December 21, 2009, Edwards answered the Complaint filed by Epstein and asserted a Counterclaim (attached as Exhibit A). 2. Epstein filed a Motion for More Definite Statement and Motion to Dismiss Edwards's Counterclaim as it was unclear what cause of action Edwards was attempting to assert. 3. On January 26, 2010, the Court entered an order (attached as Exhibit B) reflecting that "upon stipulation of counsel [ j, the claim is solely an abuse of process EFTA01076581 Epstein v. Rothstein, et al. Case No. 50 2009CA040800XXXXMB AG Epstein's Motion for Judgment on the Pleadings on Edwards's Counterclaim Page 2 of 8 claim." 4. On March 15, 2010, Epstein filed his Answer and Affirmative Defenses to Edwards's Counterclaim (attached as Exhibit C). 5. Edwards fails to sufficiently plead and has no evidence to support a claim against Epstein for abuse of process. Therefore Epstein is entitled to judgment on the pleadings or, alternatively, summary judgment. Legal Standard 6. In passing on a motion for judgment on the pleadings made by defendant, "all well pleaded material allegations of the complaint and all fair inferences to be drawn therefrom must be taken as true and the inquiry is whether the plaintiff has stated a cause of action by his complaint." See Reinhard v. Bliss, 85 So. 2d 131, 133 (Fla. 1956); Martinez v. Florida Power & Light Co., 863 So. 2d 1204, 1205 (Fla. 2003)' Lutz v. Protective Life Ins. Co., 951 So. 2d 884, 888 (Fla. 4th DCA 2007). "The test we apply in this instance is the same as if defendant has made a motion to dismiss the complaint for 'failure to state a cause of action' under [Fla. R. Civ. P. 1.140(b)]." See Bliss, 85 So. 2d at 133; Martinez, 863 So. 2d at 1205; see also Lutz, 951 So. 2d at 888 (holding that "[j]udgment on the pleadings may be granted when the moving party is clearly entitled to a judgment, as a mater of law, based solely on the content of the pleadings."). 7. A movant is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is not genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Fla. R. EFTA01076582 Epstein v. Rothstein. et al Case No. 50 2009CA040800XXXXMB AG Epstein's Motion for Judgment on the Pleadings on Edwards's Counterclaim Page 3 of 6 Civ. P. 1.510(c). However, a defendant is entitled to summary judgment "when there is a complete absence of evidence to support the plaintiffs claims." See Laschke v. Brown & Williamson Tobacco Corp., 766 So. 2d 1076, 1077 (Fla. 2d DCA 2000), citing Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966). Argument 8. Epstein is entitled to judgment on the pleadings or, alternatively, summary judgment on Edwards's Counterclaim for abuse of process because Edwards fails to allege, and there is absolutely no evidence of, any wrongful act or misuse of process after the initial process was issued. 9. The crux of Edwards's Counterclaim is that Epstein filed the instant action "for the sole purpose of further attempting to intimidate Edwards, , and others into abandoning or settling their legitimate claims for less than their just and reasonable value." See Counterclaim ¶9. 10. These allegations fall short of establishing a cause of action for abuse of process. Florida courts have repeatedly held that the act constituting misuse of the process must occur after process was issued. See Whitney Information Network, Inc. v. Gagnon, 353 F.Supp.2d 1208, 1212 (III Fla. 2005) (dismissing abuse of process claim where count "merely alleges that plaintiffs filed the lawsuit for a variety of improper or unlawful purposes, and (failed] to allege any post-issuance abuse of process."); McMurray v. U-Haul Co., Inc., 425 So. 2d 1208, 1209 (Fla. 4th DCA 1983) (finding that while appellants' alleged complaint was filed for a multitude of improper purposes such as to coerce settlement of appellant's debt, appellants failed to state a cause of action EFTA01076583 Epstein v. Rothstein, et al. Case No. 50 2009CA040800XXXXMB AG Epstein's Motion for Judgment on the Pleadings on Edwards's Counterclaim Page 4 of 6 for abuse of process because they failed to alleged an act which constituted misuse of the process after it was issued). 11. Additionally, the allegation that Epstein filed the claims against Edwards to intimidate him is inapposite. In Della-Donna v. Nova University, Inc., 512 So. 2d 1051, 1055 (Fla. 4th DCA 1987), the court granted summary judgment in favor of defendant on plaintiff's abuse of process claim, finding that the defendant demonstrated the nonexistence of a genuine issue of material fact since there was no allegation or evidence of any act by defendant which constituted misuse of process after it was issued. The court further noted that "filing a lawsuit with ulterior motive of harassment does not constitute abuse of process." Id. at 1056. 12. In Marty v. Gresh, 501 So. 2d 87, 90 (Fla. 1st DCA 1987), the court reversed a jury verdict in favor of plaintiff on his abuse of process claim and reasoned that while certain pre-process events may suggest a malicious intent, "the maliciousness or lack of foundation of the asserted cause of action itself is actually irrelevant to the tort of abuse of process." (Internal citation omitted). Moreover, the court noted that the facts alleged "speak to pre-process rather than post-process events, and hence fail to advance appellee's cause of action for abuse of process." Id. (Emphasis in original). The court concluded that "the trial court should have granted [defendant's] motion for a directed verdict" on plaintiffs abuse of process claim. Id. 13. Equally unavailing is Edwards's allegation that Epstein ignored the prior written notice requirement to initiate a civil theft claim. See Counterclaim ¶10. In Miami Herald Publishing Co. v. Ferre, 636 F.Supp. 970, 974-75 II. Fla. 1985), the court held EFTA01076584 Epstein v. Rothstein. et al. Case No. 50 2009CA040800XXXXMB AG Epstein's Motion for Judgment on the Pleadings on Edwards's Counterclaim Page 5 of 6 that defendants' allegations that plaintiffs abused process by commencing lawsuit and failing to follow procedures under Florida Public Record Act before lawsuit was commenced failed to state a claim for abuse of process "as neither involves the requisite allegation of post-issuance [abuse of process]." Nevertheless, Epstein was not required to give written notice as he did not assert a cause of action under Fla. Stat. §772.11, which requires a pre-suit written demand. 14. Edwards has failed to allege and there is a complete absence of evidence of any misuse of process after the instant lawsuit was filed and served. Accordingly, the Court must enter judgment on the pleadings or, alternatively, summary judgment in favor of Epstein of Edwards's Counterclaim for abuse of process. WHEREFORE, Plaintiff/Counter-Defendant, JEFFREY EPSTEIN, requests the Court enter judgment on the pleadings or, alternatively, summary judgment in his favor on Defendant/Counter-Plaintiffs, BRADLEY J. EDWARDS, Counterclaim for abuse of process 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. Mail to the following addressees on thiseday of March , 2010: Gary M. Farmer, Jr., Esq. Jack Alan Goldberger, Esq. Farmer, Jaffe, Weissing, Edwards, Fistos Atterbury Goldberger & Weiss, & Lehrman, PL 250 Australian Avenue South 425 N. Andrews Avenue, Suite 2 Suite 1400 Fort Lauderdale, FL 33301 West Palm Beach, FL 33401-5012 Fax: fax Co-Cotnaillendant Jeffrey Epstein rn Attoeys or efendant, fl . EFTA01076585 Epstein v. Rothstein. et al. Case No. 60 2009CA040800XXXXMB AG Epsteln's Motion for Judgment on the Pleadings on Edwards's Counterclaim Page 6 of 6 Jack Scarola, Esq. Law Offices of Marc S. Nurik Searcy Denney Scarola Barnhart & Counsel to Scott Rothstein Shipley, El One East Broward Boulevard, Suite 700 2139 Palm Beach Lakes Blvd. Fort Lauderdale, FL 33301 West Palm Beach, FL 33409 F Attorneys for Defendant Bradley Edwards BURMAN, CRITTON, LUTTIER & COLEMAN, LLP 303 Banyan Boulevard Suite 400 West Palm Beach, FL 33401 Fa By: Robert . Critton, Jr. Florid Bar #224162 Michael J. Pike Florida Bar #617296 (Counsel for Defendant Jeffrey Epstein) EFTA01076586  Won SEARCY DENNEY ;Old( L2/21/2000 14:07 FAX 5010845810 IN THE CIRCUIT COURT Or THE FIFTEENTH JUDICIAL CIRCUIT, IN AND A FOR PALM BEACH COUNTY, FLORID CASE NO.: 502009CA0408003OOOCMIIAG JEFFREY. EPSTEIN, Plaintiff; vs. SCOTT ROTHSTEIN, individually, BRADY J. EDWARDS, individually, and In, individually, Defendants, S ENDANT. BRADLEY J. EDWARD ANSWER ANDSOUNTERCLAIM OF DEF ed individually, by and through his undersign Defendant, BRADLEY I. EDWARDS, to the Complaint filed by Plaintiff, JEFFREY attorneys Ales his Answer and Counterclaim ember 7, 2009 as follows: EPSTEIN, in the above-styled matter on Dec ANSWER GENERAL ALLEGATIONS ations contained in Paragraph L and L Defendant, EDWARDS, denies the alleg demands strict proof thereof. allegations contained in Piusgraph 2. 2. Defendant, EDWARDS, admits the ations contained in Paragraph 3. 3. Defbadant, EDWARDS, admits the alleg contained in Paragraph 4. 4. Defendant, EDWARDS, admits the allegations I EXHIBIT EFTA01076587  SEARCY. DENNEY rdt oar ' 12/21/2009 14:08 FAX 5818845816 ntercloIM ofEdwards Epstein v. Rothstein: Answer mid C,ou Page 2 of 16 to either admit or deny the 5. Defendant, EDWARDS, is without knowledge t thereby denies these allegations and demands stric allegations contained in Paragraph 5 and proof thereof. individual residing in Broward 6. Defendant, EDWARDS, admits that ha is an t, law in the State of Florida, otherwise Defendan County, Florida and is licensed to practice ations contained in Paragraph 6 and demands strict EDWARDS, denies the balance of the alleg proof thereof. t, a is an individual residing in 7. Defendant, EDWARDS, admits that Defendan by RRA and EDWARDS in a civil lawsuit against Palm Beach County, Elorlda represented e S but no longer represented by RRA. Otherwis Epstein, and is now represented by EDWARD g nce of the alleg ations contained in Paragraph 7 includin Defendant, EDWARDS, denies the bala ands that S was ever represented by ROTHSTEIN and dem but not limited to the allegation strict proofthaeof. RRA was a Florida Professional 8. Defendant, EDWARDS, admits that non-party e , Pt ess of 401 Bast Las Oles Boulevard, Suit 1650 Service Corporation, with a principal addr a busi ness and filed lawsuits on behalf of clients in Pah Lauderdale, FL 33401, and it conducted r filed a lawsuit on behalf of nor did it file Beach County, Florida; however, RRA neve ARDS EPSTEIN. Those lawsuits were filed by EDW lawsuits on behalf of other victims against S, denies of RRA. Otherwise Defendant, EDWARD prior to any association with or knowledge eof Paragraph 8 and demands strict proof ther the balance of the allegations contained in EFTA01076588  Ql005 5818 SEARCY DENNEY 12/21/2000 14:08 FAX 582884 Counterclaim of Edwards Epstein e. Rothstein; Answer and Page 3 of 16 hout kno wledge to either admit or deny the 9. Defendant, EDWARDS, is wit ct 9 and thereby denies these allegations and demands stri allegations contained in Paragraph proof thereof. ately and that RRA held itself out as legitim 10. Defendant, EDWARDS, admits S Is without of law, otherwise Defendant, EDWARD properly engaging in the practice agraph 10 and y the balanc e of the allegations contained in Par knowledge to either admit or den f. s and demands strict proof thereo thereby denies these allegation y the hout knowledge to either admit or den IL Defendant, EDWARDS, is wit aph 11 and thereby denies these allegations and demands strict allegations contained in Paragr proof thereof. deny the t knowledge to either admit or 12. Defendant, EDWARDS, is withou demands strict aph 12 and the reby denies these allegations and allegations contained in Paragr proof thereof. the t knowledge to either admit or deny 13. Defendant, EDWARDS, is withou 13 and thereby denies these allegation and demands strict allegations contained in Paragraph proof thereof . y the t knowledge to either admit or den 14. Defendant, EDWARDS, is withou s and demands strict aph 14 and thereby denies these allegation allegations contained hi Paragr proof thereof. deny the hout knowledge to either admit or 35. Defendant, EDWARDS, is wit ct 15 and thereby den ies these allegations and demands stri allegations contained in Paragraph proof thereof. EFTA01076589  01006 SEARCY DENNEY 12/21/2009 14:08 VAX 5816845816 raofEdwArds Epsteiny:RantAftr_AnmverandCousWmAii Page 4orl 6 edgetoehheradmitordenythe 16. Defendant, EDWARDS,iswithoutknowl eby deni es these allegations and demands strict allegations contained in Paragraph 16 and ther proof thereof. ations contained in Paragraph 17. 17. Defendant, EDWARDS, admits the alleg s contained in Paragraph 13 and 18. Defendant, EDWARDS, denies the allegation demands strict proof thereof. ledge to either admit or deny the 19. Defendant, EDWARDS, is without know ands strict and th.ereby denies these allegations and dem allegations contained in Paragraph 19 proof thereof. ledge to either admit or deny the 20. Defendant, EDWARDS, is without know ands strict thereby denies these allegations and dem allegations contained in Paragraph 20 arid proof thereof e to either admit or deny the 21. Defendant, EDWARDS, is without knowledg strict eby denies these allegations and demands allegations contained in Paragraph 21 and ther proof thereof. wledge to either admit or deny the 22. Defendant EDWARDS, is without kno ands strict and thereby denies these allegations and dem allegations contained in Paragraph 22 proof thereof. identity of claimants against Epstein was 23. Defendant, EDWARDS, admits that the r allegations of Paragraph 23 are denied. and shielded through the use of initials. All othe Defendant demands strict proof thereof. EFTA01076590  @ins 8016 SEARCY DENNEY 12/21/2000 14:09 FAX S01004 Counterclaim of Edwards Epstein v. Rothstein: Answer and Page 5 of 16 inst Epstein on that he represented claimants aga 24. Defendant, EDWARDS, admits and Defendant demands strict ions of Paragraph 24 are denied behalf of MA.. MI other allegat proof thereof. t kno wledge to either admit or deny the 25. Defendant, EDWARDS, is withou s ct aph 25 and thereby denies these allegations and demand stri allegations contained in Paragr proof thereof. 26 and allegations contained in Paragraph 26. Defendant, EDWARDS, denies the demands strict proof thereof. aph 27 and allegations contained in Paragr 27. Defendant, EDWARDS, denies the demands strict proof thereof. hout knowle dge to either admit or deny the 28. Defendant, EDWARDS, is wit the evidence against aph 28 exc ept that EDWARDS admits allegations contained in Paragr Epstein was, in fast, real. deny the hou t knowledge to chin; admit or 29. Defendant, EDWARDS, is wit ands strict aph 29 and thereby denies these allegations and dem allegations contained in Paragr proof thereof. or deny the hout latowleclge to either admit 30. Defendant, EDWARDS, is wit and thereby denies these allegations and demands strict allegat ions contained in Paragraph 30 proof thereof. deny the hou t knowledge to either admit or 31. Defendant. EDWARDS, is wit that he In Par agr aph 31 exc ept tha t EDWARDS specifically denies allegations contained illegal conduct. d in or had kno wle dge of any of the alleged unethical or engage EFTA01076591  Q1006 581 6 SEARCY DENNEY 1.2/21/2009 14;09 FAX 501804 and Cotutteralains of Edsvards Epstein v. Rothstein: Answer Page 6 of 16 y the hout knowledge to either admit or den 32. Defendant, EDWARDS, is wit specifically denies that he alie ns con tain ed in Par agr aph 32 except that EDWARDS all gal eon uct. d in or bad Imo wle dge of any of the alleged unethical or ille engage admit or deny the De fen dan t, ED WA RD S, is without knowledge to either 33. denies that he con tain ed in Par agr aph 33 except that EDWARDS specifically allegations illegal conduct. any of the alleged unethical or engaged in or had knowledge of deny the fen dan t, ED WA RD S, is wit hou t lotowledge to either admit or 34. De allegations and demands strict gat ion s con tain ed in Par agr aph 34 and thereby denies these alle proof thereof. y the hout knowledge to either admit or den 35. Defendant, EDWARDS, is wit that be aph 35 except that EDWARDS specifically denies allegations contained in Paragr illegal conduct any of the alleged unethical or engaged in or bad imowledge of and its that he dep osed time of Epstein's pilots, 36. Defendant, EDWARDS, adm s pilot, otherwise Defendan t denies the balance of the allegation sought the deposition of a fourth s strict proof thereof. of Paragraph 36 and demand y the t knowledge to either admit or den 37. Defendant, EDWARDS, is withou s strict 37 and thereby denies these allegations and demand allegations contained in Paragraph proof thereof. the allegation s contained in Paragraph 38. except 38. Defendant, EDWARDS, admits Mattola. he sought to subpoena Tommy that EDWARDS denies that EFTA01076592  t 007 501684581 0 SEARCY DENNEY 12/21/2009 14:09 FAX oclaimofEdwesds Epsteinv.Rothsteln:Answerandeount Pagoloft6 deny the dan t, ED WA RD S, is wit hou t knowledge to either admit or 39. Defen ct agr aph 39 and the reb y den ies these allegations and demands stri anions contained in Par proof thereof. aph 40. the allegations contained in Paragr 40. Defendant, EDWARDS, admits aph 41 and the allegations contained in Paragr 41. Defendant, EDWARDS, denies demands mid proof thereof. aph 42 (a) and allegations contained in Paragr 42. Defendant, EDWARDS, denies the and Russell pro of the reo f. De fen dan t, EDWARDS, admits that he, Berger (b) and demands strict dant, r in RR A) all atte nde d Ep stein's deposition, otherwise Defen Adler (another named partne agraph 42 (c). Defendant, RD S, den ies the bal anc e of the allegations contained in Par EDWA ands strict proof den ies the alle gat ion s con tained in Paragraph 42 (d) and dem EDWARDS, aph 42 (e) and t, ED WA RD S, den ies the allegations contained in Paragr thereof. Defendan the Court on July of the reo f, exc ept tha t ED WA RDS admits that he addressed demands strict pro of that den ce of the con ten t of his statements is the official transcript 31, 2009, and the bes t evi training t, ED WA RD S, adm its tha t he filed a Motion for Injunction Res proceeding. Defendan arge of Property of t Tra nsf er of As set s, Ap poi ntment of a Receiver to Take Ch Fraudulen tein, Bo nd to Sec ure Pot ent ial Judgment, in Jane Doe v. Eps Epstein, and to Post a S15 million ss. Defendant, -80 893 -M arre nol uis on. Th e motion was reported in the pre Case No. O8-CV ions contained in its tha t the mo tion wa s den ied. The balance of the allegat EDWARDS, adm of thereof. Defendant, agraph 42 (t) are den ied and Defendant demands strict pro Par agraph wle dge to eith er adm it or deny the allegations contained in Par EDWARDS, is without kno reof. Defendant, the reb y den ies the se alle gat ions and demands strict proof the 42 (g) and EFTA01076593  oos 8 'T SEARCY DENNEY 12/21/2008 14:10 PAX 581464881 ICousterclaknofEdwards Epatilly.Redullau:Aamwtrium Page 8 of l6 proof contained in Paragraph 42 (b) and demands strict EDWARDS, denies the allegations and ies the alle gations contained in Paragraph 42 (i) Defendant, EDWARDS, den in t Defendant, EDWARDS, admits the allegations coalmine demands strict proof therea either admit or deny the Paragraph 42 a Defendant, EDWARDS, is without knowledge to 42 (k) and the reb y den ies these allegations and demands strict aph allegations contained in Paragr d and they knew the De fen dan t, ED WA RD S, adm its that they knew what it sai proof thereof. ding Civil Actions. in the agr eem ent had no imp act whatsoever on the three pen civil provisions to resolve tain civ il pro vis ion s in the NPA was to allow an alleged victim The concept behind cer with her in, ma inta in her com ple te priv acy and anonymity and move on a civil clan with Epste either admit or deny The erw ise, De fen dan t, ED WA RDS, is without knowledge to life, oth re denies the balance of the the alle gat ion s con tain ed in Paragraph 42 (I) and therefo balance of of thereof. aph 42 (I) and demands strict pro allegations contained in Paragr or deny the fen dan t, ED WA RD S, is wit hout knowledge to either admit 43. De s strict agr aph 43 and the reb y denies these allegations and demand allegations contained in Par proof thereon aph 44 and the allegations contained in Paragr 44. Defendant EDWARDS, denies demands strict proof theme aph 45 and allegations contained in Paragr 45. Defendant, HOWARDS, denies the demands strict proof theme 46 and ies the allegations contained in Paragraph 46. Defendant, EDWARDS, den demands strict proof thereof. EFTA01076594  VS)oats 481e :•• SEARCY DENNEY 12/Y1/2009 14:10 FAX 541804 Counterclaim of Edwards Epstehi v. Rothstein: Answer and Page 9 of 16 ent to the, that . gave a sworn taped statem 47. Defendant, EDWARDS, admits dence of the content of in the civil proceedings. The best evi F$Lged ksubsequent deposition of each. these statements is the transcript agraph 48 and ies the allegations contained in Par 48. Defendant, EDWARDS, den demands strict proof thereof. 49 and alle gations contained in Paragraph 49. Defendant, EDWARDS, denies the demands strict proof thereof. agraph 50 and the allegations contained in Par 50. Defendant, EDWARDS, denies demands strict proof thereof. aph 51 and the allegations contained in Paragr 51. Defendant, En WARDS, denies demands strict proof thereof. and the allegat ions contained in Paragraph 52 52. Defendant, EDWARDS, denies demands strict proof thereof. Paragraph 53 and the allegations contained in 53. Defendant, EDWARDS, denies demands strict proof thereof. Criminal 547 72 101 qt sea .. Fla . Stot.—Florida Civil Remedies for Count I—Violation of fendants Practices Act—Against All De aphs RD S, adm its or den ies the allegations contained in Paragr 54. Defendant, ED WA ein. 1-53 as previously set forth her Paragraph 55 and the allegations contained in 55, Defendant, EDWARDS, denies demands strict proof thereof. EFTA01076595