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Case 9:10-cv-80309-KAM Document 15-1 Entered on FLSD Docket 04/12/2010 Page 1 of 16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 10-80309-CIV- JANE DOE No. 103, Plaintiff, vs. JEFFERY EPSTEIN, Defendant. I DEFENDANT EPSTEIN'S AMENDED MOTION TO DISMISS,COUNT VI & FOR MORE DEFINITE STATEMENT & TO STRIKE DIRECTED TO PLAINTIFF JANE DOE NO. 103'S COMPLAINT [dated 2/23/2010) Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and through his undersigned counsel, files this Amended Motion To Dismiss Count VI, & Motion For More Definite Statement & Strike Directed To Plaintiff JANE DOE I 03 's Complaint. Defendant moves to dismiss Count Six of Plaintiff JANE DOE 103's Complaint for failure to state a cause of action, as specified herein. Rule 12(b)(6), Fed.R.Civ.P. (2009); Local Gen. Rule 7.1 (S.D. Fla. 2009). Defendant further moves for More Definite Statement and to Strike. Rule 12(e) and (f), In support of his motion, Defendant states: The Complaint attempts to allege 6 counts, all of which are purportedly brought pursuant to 18 U.S.C. §2255 -Civil Remedies/or Personal Injuries. Count Six is subject to dismissal because the predicate act relied upon by Plaintiff for her claims did not come into effect until July 27, 2006, well after the conduct alleged by Plaintiff occurred. The More Definite Statement requested is for Plaintiff to allege her date of birth in that her being a minor has significance in the claims she alleges. Case 9:10-cv-80309-KAM Document 15-1 Entered on FLSD Docket 04/12/2010 Page 2 of 16 Supporting Memorandum of Law Principles of Statutory Interpretation It is well settled that in interpreting a statute, the court's inquiry begins with the plain and unan1biguous language of the statutory text. CBS, Inc. v. Prime Time 24 Venture, 245 F.3d 1217 (11 th Cir. 2001); U.S. v. Castroneves, 2009 WL 528251, *3 (S.D. Fla. 2009), citing Reeves v. Astrue, 526 F.3d 732, 734 (11 th Cir. 2008); and Smith v. Husband, 376 F.Supp.2d at 610 ("When interpreting a statute, [a court's] inquiry begins with the text."). "The Court must first look to the plain meaning of the words, and scrutinize the statute's 'language, structure, and purpose."' Id. In addition, in construing a statute, a court is to presume that the legislature said what it means and means what it said, and not add language or give some absurd or strained interpretation. As stated in CBS, Inc., supra at 1228 - "Those who ask courts to give effect to perceived legislative intent by interpreting statutory language contrary to its plain and unambiguous meaning are in effect asking courts to alter that language, and ' [ c ]ourts have no authority to alter statutory language .... We cannot add to the terms of [the] provision what Congress left out.' Merritt, 120 F.3d at 1187." See also Dodd v. U.S., 125 S.Ct. 2478 (2005); 73 Am.Jur.2d Statutes § 124. Title 18 of the U.S.C. is entitled "Crimes and Criminal Procedure." §2255 is contained in "Part I. Crimes, Chap. 110. Sexual Exploitation and Other Abuse of Children." 18 U.S.C. §2255 (2002)1, is entitled Civil remedy for personal injuries, and provides: 1 The above quoted version of 18 U.S.C. §2255 was the same beginning in 1999 until amended in 2006, effective July 27, 2006. 2 Case 9:10-cv-80309-KAM Document 15-1 Entered on FLSD Docket 04/12/2010 Page 3 of 16 (a) Any minor who is a victim of a violation of section 224l(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the snit, including a reasonable attorney's fee. Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than $50,000 in value. ( b) Any action commenced under this section shall be barred unless the complaint is filed within six years after the right of action first accrues or in the case of a person under a legal disability, not later than three years after the disability. See endnote 1 hereto for statutory text as amended in 2006, effective July 27, 2006. Prior to the 2006 amendments, the version of the statute quoted above was in effect beginning in 1999. 1 All of Plaintiffs allegations of abuse occurred between January 2004 and May 2005 (par. 18), well prior to 18 U.S.C. §2255 being amended. Motion to Dismiss PlaintifPs reliance on the amended version of 18 U.S.C. §2255, such reliance is improper. The version of Defendant's position that 18 U.S.C. §2255 in effect prior to the 2006 amendments applies to this action, and therefore Count Six is required to be dismissed as it relies on a predicate act that was not in effect at the time of the alleged conduct. 23 Plaintiff does not specifically allege in her Complaint on which version of 18 U.S.C. §2255 she is relying. However, in Count Six of her Complaint, i!50, she alleges that Defendant "knowingly engaged in a child exploitation enterprise, as defined in 18 U.S.C. §2252A(g)(2), in violation of 18 U.S.C. §2252A(g)(l)." §2252A is one of the 2 Points (2) and (3) are addressed together as the legal arguments overlap. 3 In other §2255 actions filed against Defendant, Defendant has previously asserted the position that 18 U.S.C. §2255's creates a single cause of action on behalf of a plaintiff against a defendant, as opposed to multiple causes of action on a per violation basis or as opposed to an allowance of a multiplication of the statutory presumptive minimum damages or "actual damages." EPSTEIN asserts his position regarding the single recovery of damages in order to properly preserve all issues pertaining to the proper application of §2255 for appeal. EPSTEIN will fully honor his obligations as set forth in the Non-Prosecution Agreement with the United States Attorney's Office; principally, as related to the claims made in this case by Jane Doe 103, the obligations as set forth in paragraph 8 of that Agreement. In particular, EPSTEIN will not contest the allegation that he committed at least one predicate offense as alleged by Jane Doe 103. 3 Case 9:10-cv-80309-KAM Document 15-1 Entered on FLSD Docket 04/12/2010 Page 4 of 16 specified predicate acts under 18 U.S.C. §2255. However, subsection (g) of §2252 was not added to the statute until 2006. Thus, to the extent that Plaintiff is relying on the amended version of 18 U.S.C. §2255, such reliance is improper and Count Six is required to be dismissed as it relies on a statutory predicate act that did not exist at the time of the alleged conduct. According to Plaintiffs allegations, the alleged conduct of EPSTEIN directed to Plaintiff occurred beginning in January 2004 until approximately May 2005. In Count VI, in attempting to assert a claim pursuant to 18 U.S.C. §2255, Plaintiff is relying on subsection, (g)(l) and (2), of the criminal statute 18 U.S.C. §2252A as the requisite predicate act. Subsection (g) of §2252A was not even in existence at the time of the alleged conduct. Subsection (g) was enacted in 2006, effective July 27, 2006. See 2006 Amendments; Pub.L. 109-248, § 701, added subsec. (g). 18 U.S.C.A. § 2252A. As discussed more fully below herein, reliance on subsection (g) violates the well entrenched constitutional principles against retroactivity, and, thus, Count VI is required to be dismissed. The statute in effect during the time the alleged conduct occurred is 18 U.S.C. §2255 (2005) - the version in effect prior to the 2006 amendment, eff. Jul. 27, 2006, ( quoted above), and having an effective date of 1999 through July 26, 2006. See endnote 1 hereto. Plaintiffs Complaint alleges that Defendant's conduct occurred during the time period from the age of 17, January 2004 until approximately May 2005.