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NOT A CERTIFIED COPY 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, ~:~~:~\~~~::;::::::lly. ,.I:,% -r .. I · So;·• <$' {-rt . •. ------------'-j:.~ --o er.· : .C"> (1) :('."1 ::,:;. • EPSTEIN'S MOTION TO DISMISS EDWARDS'S COUNTER~-~ > . i J>:1(""\ _;_5 • Plaintiff, JEFFREY EPSTEIN ("Epstein"), pursuant to Fla. R. Civ. ~1 .'ffO(b), moves to dismiss the Counterclaim for abuse of process filed by Defendant, Bradley J. Edwards ("Edwards"), and states: 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 [ ], the claim is solely an abuse of process claim." 4. Edwards's Counterclaim fails to state an action for abuse of process. Specifically, Edwards fails to allege any wrongful act or misuse of process after the initial process was issued. NOT A CERTIFIED COPY I, Epstein v. Rothstein, et al. Case No. 50 2009CA040800XXXXMB AG Epstein's Motion to Dismiss Edwards's Counterclaim Page 2 of4 5. The crux of Edwards's counterclaim is that Epstein filed the instant action "for the sole purpose of further attempting to intimidate Edwards, L.M., and others into abandoning or settling their legitimate claims for less than their just and reasonable value." See Counterclaim ,T9. In addition, Edwards alleges that" ... Epstein has ignored the statutory requirement for written notice prior to the initiation of a civil theft claim." kl ,T10. 6. These allegations fall short of stating 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 (M.D. 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 for abuse of process because they failed to alleged an act which constituted misuse of the process after it was issued). 7. Additionally, the allegation that Epstein filed the claims against Edwards to intimidate him is inapposite. In Marty v. Gresh, 501 So. 2d 87, 90 (Fla. 1st DCA 1987), the court found 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 NOT A CERTIFIED COPY Epstein v. Rothstein, et al. Case No. 50 2009CA040800XXXXMB AG Epstein's Motion to Dismiss Edwards's Counterclaim Page 3 of 4 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." kl (Emphasis in original). See also Della-Donna v. Nova University, Inc., 512 So. 2d 1051, 1055 (Fla. 4th DCA 1987) (holding that plaintiff failed to state an abuse of process claim since there was no allegation of misuse of process after it was issued; filing a lawsuit with ulterior motive of harassment does not constitute abuse of process); 8. Equally unavailing is Edwards's allegation that Epstein ignored the prior written notice requirement to initiate a civil theft claim. See Miami Herald Publishing Co. v. Ferre, 636 F.Supp. 970, 974-75 (S.D. Fla. 1985) (holding 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. 9. Edwards has failed to allege any misuse of process after the instant lawsuit was filed and served. Accordingly, Edwards has failed to state a cause of action for abuse of process and his Counterclaim must therefore be dismissed WHEREFORE, Plaintiff, JEFFREY EPSTEIN, requests the Court dismiss Defendant's, BRADLEY J. EDWARDS, Counterclaim for abuse of process and grant any additional relief the Court deems just and proper. NOT A CERTIFIED COPY Epstein v. Rothstein, et al. Case No. 50 2009CA040800XXXXMB AG Epstein's Motion to Dismiss Edwards's Counterclaim Page 4 of 4 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 this 26th day of February , 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 Searcy Denney Scarola Barnhart & Shipley, P.A Law Offices of Marc S. Nurik 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 Beach, FL 33401 (561) 842-2820 (561) 253-1 4 Fax R bert D. Critton, Jr. Florida Bar #224162 Michael J. Pike Florida Bar #617296 (Counsel for Defendant Jeffrey Epstein) NOT A CERTIFIED COPY •• 12/21/2009 14: 07 FAX 5616845816 SEARCY DENNEY l.t)OOl IN THE CIRCUIT COURT OF THE FIFTEENTII JUDICIAL ClRCUIT, IN A.Nb FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintifft vs. SCOTT ROTI-ISTEIN, individually, BRADLEY J. EDWARDS, individually, Elnd L.M., individually, Defendantst _______________ ! ANSWER AND COUNTERCLA1M OF DEFENDANT, BRADLEY J. EDWARDS Defendant, BRADLEY J. EDWARDS, individually, by and through his undersigned attorneys files his Answer and CoUl'lterclaim to the Complaint filed by Plaintiff, JEFFREY EPSTEIN, in the above-styled matter 011 December 7, 2009 as follows: ANSWER GENERAL ALLEGATIONS 1. Defendant, EDWARDS, denies the allegations contained in Paragraph l and demands strict proof thereof. 2. Defendant, EDWARDS, admits the allegations contained in Paragraph 2. 3. Defendant, EDWARDS, admits the allegations contained in Paragraph 3. 4. Defendant, EDWARDS, admits the allegations contained in Paragraph 4. EXHIBIT ~'{\ NOT A CERTIFIED COPY • 12/21/2009 14:06 FAX 5616845816 SEARCY DENNEY Epstein v. Rothgtein: Answer and Countctclnim of Edwards Page 2 of16 5. Defendant, EDWA,RDS,