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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE II)CASE NO.: 09-80469-CIV-MARRA ) Plaintiff,) ) vs.) ) JEFFREY EPSTEIN, ) and SARAH KELLEN, ) ) Defendants.) / PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT EPSTEIN’S MOTION TO DISMISS Plaintiff, JANE DOE II, through counsel, opposes Defendant’s RICHARD EPSTEIN’s Motion to Dismiss. Defendant’s argument for a dismissal is premised on the following: 1) Plaintiff is not permitted to file a claim under Florida law in a State of Florida court and then file a federal claim in a federal court; 2)the remedies amendment to 18 U.S.C.§2255 are not retroactive based on the dates Defendant EPSTEIN is alleged to have violated the statute; 3)damages under §2255 cannot be obtained on a per incident basis, but must be lumped together into a single recovery despite multiple violations occurring in temporally distinct time frames, and therefore being different incidents; 4) Plaintiff has failed to state a cause of action under §2255 because she has failed to “allege facts constituting a predicate act”; and 5) Plaintiff has failed to state a cause of action for conspiracy to violate §2255. I.LEGAL STANDARD Defendant’s motion to dismiss must be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claims that would entitle her to relief. Case 9:09-cv-80469-KAM Document 20 Entered on FLSD Docket 05/22/2009 Page 1 of 20 1 On a Motion to Dismiss, the Court is of course confined to the four corners of the Complaint, and it is completely improper for the Defendant to attach as Exhibits copies of a Complaint from a different proceeding, a fact that is not alleged anywhere in the Complaint at issue before this Court. Nevertheless because the Defendant’s argument on this issue is meritless, Plaintiff addresses it on the merits. 2 Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court must accept all of plaintiff’s factual allegations as true. Schuer v. Rhodes, 416 U.S. 232 (1974). Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint need only be “a short and plain statement of the claim,” and as long as the pleadings “give defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests,” notice pleading has been satisfied. Conley v. Gibson, 355 U.S. at 47. For a claim to state a cause of action however, facts, not labels and conclusions must be asserted. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) II.ARGUMENT Point 1.Plaintiff has every right to proceed in State court for a Florida common law claim, and in this Court for a federal claim. Defendant EPSTEIN’s argument on this point is frivolous. Plaintiff’s claims in State court are based on the common law of Florida, while the federal claims are based on a federal statutory remedy. 1 There are different facts that prove each claim and different elements to the claims. Defendant seems to be arguing that the Plaintiff forfeits a right to a federal remedy when she invokes a parallel, but independent and wholly distinct right to a State remedy. That is simply not supported by any case or reasonable interpretation of any case. The lynchpin of Defendant’s argument is that concurrent jurisdiction is available to hear all claims in one forum; that is simply not the case, since the state claims are vastly different than the federal statutory remedy. If the State claims had been filed in this Court, this Court would not be obligated to exercise concurrent jurisdiction. It is well established that the exercise of supplemental jurisdiction is discretionary with the court, and is properly rejected Case 9:09-cv-80469-KAM Document 20 Entered on FLSD Docket 05/22/2009 Page 2 of 20 2 In United Mine Workers v. Gibbs, 383 U.S. 715 (1966), a jury’s verdict against a union based on State law claims was reversed, in part, because the federal law claim failed. The Court noted that: “It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U.S. 64.Needless decisions of state law [by a federal court] should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.” 3 under many circumstances. 2 28 U.S.C. §1367, “supplemental jurisdiction,” provides that: ©) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-- (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Courts routinely “are obligated to raise and decide issues of subject matter jurisdiction sua sponte any time it appears subject matter jurisdiction is absent.” Carias v. Lenox Financial Mortgage Corporation, 2008 U.S. DIST. LEXIS 20345 *1 (N.D. Cal. March 5, 2008). In Carias, after granting summary judgment on the sole federal claim, the Court remanded the State claims to state court, stating: “The Court declines to exercise pendent jurisdiction over the state law claims and remands the action to state court. The Court finds that the issues of economy, convenience, fairness and comity collectively weigh in favor of remand. See Harrell, 934 F.2d at 205. Comity weighs especially strong, given that the remaining claims are pure state law claims with no connection to federal law. Economy also weighs in favor of remand as state courts are better equipped to efficiently handle state Case 9:09-cv-80469-KAM Document 20 Entered on FLSD Docket 05/22/2009 Page 3 of 20 4 law claims.” Id. at *5-6 (emphasis added). In Daimler Chrysler Corporation v. Charlotte Cuno, 547 U.S. 332, 351-52 (2006) the Supreme Court stated: Gibbs held that federal-question jurisdiction over a claim may authorize a federal court to exercise jurisdiction over state-law claims that may be viewed as part of the same case because they "derive from a common nucleus of operative fact" as the federal claim. 383 U.S., at 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218. Plaintiffs assume that Gibbs stands for the proposition that federal jurisdiction extends to all claims sufficiently related to a claim within Article III to be part of the same case, regardless of the nature of the deficiency that would keep the former claims out of federal court if presented on their own. Our general approach to the application of Gibbs, however, has been markedly more cautious. For example, as a matter of statutory construction of the pertinent jurisdictional provisions, we refused to extend Gibbs to allow claims to be asserted against nondiverse parties when jurisdiction was based on diversity, see Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978), and we refused to extend Gibbs to authorize supplemental jurisdiction over claims that do not satisfy statutory amount-in-controversy requirements, see Finley v. United States, 490 U.S. 545, 109 S. Ct. 2003, 104 L. Ed. 2d 593 (1989). As the Court explained just last Term, "we have not . . . applied Gibbs' expansive interpretive approach to other aspects of the jurisdictional statutes." Exxon Mobil Corp.