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NOT A CERTIFIED COPY Filing# 68747930 E-Filed 03/02/2018 05:12:19 PM JEFFREY EPSTEIN, Plaintiff, vs. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and L.M., individually, Defendants. I ---------------- IN THE CIRCUIT COURT OF THE FIFTEENTH WDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800:XXXXMBAG SUPPLEMENT TO MOTION FOR SEPARATE TRIALS OR, IN THE ALTERNATIVE TO ADJUST THE ORDER OF PROOF Counter-Plaintiff Bradley J. Edwards, pursuant to Florida Rules of Civil Procedure 1.270 and 1.440, hereby files this Supplement to Motion for Separate Trials or, in the Alternative, to Adjust the Order of Proof, and as grounds thereof states as follows: Summary Epstein is attempting to try a damages-only claim regarding a clerk's default entered against Defendant Rothstein on January 21, 2010. As the Court will see, however, that clerk's default was entered against the Initial Complaint. Epstein has since amended his complaint twice and has abandoned every count pled against Rothstein in the Initial Complaint. Thus, in addition to the reasons set forth in Edwards' Motion to Separate Trials, the Court should sever Epstein's claim against Rothstein because the only pending claim against Rothstein is a Conspiracy to Commit Abuse of Process count contained in the Second Amended Pleading, to which no default has been entered and which has not been set for trial. FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 03/02/2018 05: 12: 19 PM NOT A CERTIFIED COPY Edwards adv. Epstein Case No. 502009CA040800:XXXXMBAG Supplement to Motion for Separate Trials or, in the Alternative, to Adjust the Order of Proof Supplement 1. Epstein filed his Initial Complaint against Defendant Rothstein on December 7, 2009, which pied the following counts against Rothstein: a. (1) Violation of§ 772,101 -Florida Civil Remedies for Criminal Practices Act b. (2) Violation of§ 895.01 - Florida's RICO Act c. (3) Abuse of Process d. (4) Fraud e. (5) Conspiracy to Commit Fraud 2. On January 21, 2010, a clerk's default was entered against Defendant Rothstein as to the Initial Complaint and the five counts listed above (see Exhibit A). 3. On April 12, 2011, Epstein filed an Amended Complaint against Defendant Rothstein. The Amended Complaint asserted a single count against Defendant Rothstein, Abuse of Process. The remaining counts against Rothstein in the Initial Complaint (Florida Civil Remedies for Criminal Practices Act, Florida's RICO Act, Fraud, and Conspiracy to Commit Fraud), were abandoned. 4. Pursuant to black-letter Florida law, the Amended Complaint against Rothstein superseded the Initial Complaint. See State Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992, 995 (Fla. 4th DCA 2001), approved, 894 So. 2d 5 (Fla. 2004) ("An amended complaint supersedes an earlier pleading where it does not express an intention to save any portion of the original pleading.") (internal quotations omitted); accord Downtown Investments, Ltd. v. Segall, 551 So. 2d 561, 562 (Fla. 3d DCA 1989). Moreover, the Initial Complaint against Rothstein was not only superseded, but "cease[] to be a part of the record" in Epstein's case against him. Babb v. Lincoln Auto Finance Co.,133 So. 2d 566, 568 (Fla. 3d DCA 1966) (emphasis added). 2 NOT A CERTIFIED COPY Edwards adv. Epstein Case No. 502009CA040800:XXXXMBAG Supplement to Motion for Separate Trials or, in the Alternative, to Adjust the Order of Proof 5. Thus, although a tenuous argument remained that the clerk's default applied to the Abuse of Process claim that was re-pied, the clerk's default as to the four abandoned counts in an inoperative pleading that was no longer part of the record was now a nullity. 6. On August 21, 2011, Epstein filed a Second Amended Complaint against Defendant Rothstein. In his Second Amended Complaint, which supersedes the Amended Complaint, Epstein abandoned his Abuse of Process claim against Rothstein and instead asserted a brand-new count: Conspiracy to Commit Abuse of Process. 7. Thus, Epstein had now abandoned every count pied in the Initial Complaint to which the clerk's default applied. The clerk's default was rendered a nullity. 8. No default has been entered against Rothstein as to the Second Amended Complaint, which is the operative pleading against that party, and the brand-new Conspiracy to Commit Abuse of Process count contained therein. 9. Moreover, even if Epstein were to proceed without a default as to liability, the Second Amended Complaint has not been noticed for trial. Pursuant to Rule 1.440, the Court may not set Epstein's Conspiracy to Commit Abuse of Process case for trial against Rothstein without first entering an order fixing the date for that trial, which "shall be set not less than 30 days from the service of the notice for trial." 10. Given that the damages being sought by Epstein against Rothstein for Conspiracy to Commit Abuse of Process are unliquidated, it would be reversible error for the Court to permit Epstein to try his case against Rothstein on March 13 th . Wells Fargo Bank, Nat. Ass'n v. Sawh, 194 So. 3d 475, 481 (Fla. 3d DCA 2016) ([T]he setting of unliquidated damages without the required notice and without proof is regarded as fundamental error."). 3 NOT A CERTIFIED COPY Edwards adv. Epstein Case No. 502009CA040800XXXXMBAG Supplement to Motion for Separate Trials or, in the Alternative, to Adjust the Order of Proof Conclusion Thus, in addition to the reasons set forth in Edwards' Motion to Separate Trials, et al, the Court should grant that Motion for the reasons stated above. I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve to all Counsel on the attached list, this 2nd day of March, 2018. Isl Davia P. Yita{e Tr. JACK SCAROLA Florida Bar No.: 169440 DAVID P. VITALE JR. Florida Bar No.: 115179 Attorney E-Mails: jsx@searcylaw.com; and mmccann@searcylaw.com Primary E-Mail: _scarolateam@searcylaw.com Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Phone: (561) 686-6300 Fax: 561-383-9451 Attorneys for Bradley J. Edwards 4 NOT A CERTIFIED COPY Edwards adv. Epstein Case No. 502009CA040800XXXXMBAG Supplement to Motion for Separate Trials or, in the Alternative, to Adjust the Order of Proof Scott J. Link, Esq. Link & Rockenbach, P.A. Scott@linkrocklaw.com Kara@linkrocklaw.com 1555 Palm Beach Lakes Boulevard Suite 301 West Palm Beach, FL 33401 Phone: 561-727-3600 Fax: 561-727-3601 Attorneys for Jeffrey Epstein COUNSEL LIST Jack A. Goldberger, Esquire jgoldberger@agwpa.com; smahoney@agwpa.com Atterbury Goldberger & Weiss, P.A. 250 Australian A venue S, Suite 1400 West Palm Beach, FL 33401 Phone: (561)-659-8300 Fax: (561)-835-8691 Attorneys for Jeffrey Epstein Nichole J. Segal, Esquire njs@FLAppellateLaw.com; kbt@FLAppellateLaw.com Burlington & Rockenbach, P.A. 444 W Railroad Avenue, Suite 350 West Palm Beach, FL 33401 Phone: (561)-721-0400 Attorneys for Bradley J. Edwards Bradley J. Edwards, Esquire staff.efile@pathtojustice.com 425 N Andrews A venue, Suite 2 Fort Lauderdale, FL 33301 Phone: (954)-524-2820 Fax: (954)-524-2822 5 NOT A CERTIFIED COPY IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case Number: 502009CA040800XXXXMB JEFFREY EPSTEIN Plaintiff(s), -vs- Division: AG SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS individuaJly and L.M. individually .. ::.-.. .. __ ,._ .::0 2~ l'I•- :--.:, c:::, = c_ ::i:::,. z ~ ·-r -· Defendant( s ), ~::;:-]:) ::r:o ·-,0 N :r-- A default is entered in the above styled cause a failure to serve a pleading at the time require DONE AND ORDERED at the Clerk' JANUARY, 2010. : .. -~· C.J .. : ?!~ ty of West P