141.pdf

Case 9:08-cv-80232-KAM Document 141 Entered on FLSD Docket 05/06/2010 Page 1 of 32 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CIV-80232-MARRA-JOHNSON JANE DOE NO. 3, Plaintiff, V. JEFFREY EPSTEIN, Defendant. ------------~/ DEFENDANT EPSTEIN'S MOTION FOR SUMMARY JUDGMENT, INCLUDING SUPPORTING MEMORANDUM OF LAW Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and through his undersigned counsel, seeks summary judgment determining that under the undisputed material facts, (1) the version of 18 U.S.C. §2255, effective 1999 to Jul. 26, 2006, the period of time during which EPSTEIN's alleged conduct occurred, applies to Plaintiff JANE DOE NO. 3's claim brought pursuant to §2255 in Count III of the Second Amended Complaint [D.E. 50]; (2) Plaintiff has failed to and cannot establish a predicate act - under 18 U.S.C. §2422 as plead in her complaint, in order to state a cause of action pursuant to 18 U.S.C. §2255 (2005); and (3) the version of 18 U.S.C. § 2255 in effect when the predicate acts allegedly were committed allow only "minors" to file suit. Rule 56, Fed.R.Civ.P. (2010); Local Gen. Rules 7.1, and 7.5 (S.D. Fla. 2010). In support of his motion, Defendant states: Introduction Defendant, without waiving any affinnative defense or grounds which may entitle him to summary judgment in this action or in any other actions brought by other plaintiffs Case 9:08-cv-80232-KAM Document 141 Entered on FLSD Docket 05/06/2010 Page 2 of 32 Jane Doe No. 3 v. Epstein Case No. 08-CV-80232-Marra-Johnson Page 2 in multiple civil actions asserting §2255 and other claims against EPSTEIN, seeks summary judgment regarding the proper application of 18 U.S.C. §2255. Based on the undisputed material facts and applicable law relevant to the summary judgment sought, Defendant is entitled as a matter of law to the entry of summary judgment determining that (1) the version of 18 U.S.C. §2255, effective 1999 to Jul. 26, 2006, the period of time during which EPSTEIN's alleged conduct occurred, applies to Plaintiffs claim brought pursuant to §2255; (2) Plaintiff has not and cannot establish the requisite elements to state a claim under 18 U.S.C. §2255, which she attempts to assert in Count III of her Second Amended Complaint [D.E. 50]. In particular, the undisputed material facts show that Plaintiff has failed to and cannot establish a predicate act -under 18 U.S.C. §2422 as plead in her complaint, in order to state a cause of action pursuant to 18 U.S.C. §2255 (2004); and (3) the version of 18 U.S.C. § 2255 in effect when the predicate acts allegedly were committed allow only "minors" to file suit. The pleadings and the discovery materials on file show that there is no genuine issue as to any material fact establishing that EPSTEIN is entitled as a matter of law to the summary judgments sought. Statement of Material Facts in Support of Snmmary Jndgment, Loc.Gen.Rnle 7.5 Statement of the Case I. Plaintiff JANE DOE NO. 3's Second Amended Complaint [D.E. 50], dated February 27, 2009, attempts to assert three causes of action. Count I and Count II, respectively, attempt to allege state law claims under Florida law for "Sexual Assault and Battery," and "Intentional Infliction of Emotional Distress." Count III, which is the subject of this motion, is entitled "Coercion and Enticement to Sexual Activity in Case 9:08-cv-80232-KAM Document 141 Entered on FLSD Docket 05/06/2010 Page 3 of 32 Jane Doe No. 3 v. Epstein Case No. 08-CV-80232-Marra-Johnson Page 3 Violation of 18 U.S.C. §2422," and attempts to assert a claim pursuant to 18 U.S.C. §2255. (Plaintiff JANE DOE NO. 3 shall be referred to as "JD3" or "Jane" or "Jane Doe." Plaintiffs Second Amended Complaint shall be referred to as "2d Am Comp," and is attached hereto as Exhibit A.). 2. According to the allegations -"In or about 2004-2005, Jane Doe, then approximately 16 years old, fell into Epstein's trap and became one of his victims." [2d Am Comp, i]8]. She had one encounter with Epstein; ( after the one encounter she brought other girls to Epstein's Palm Beach home as specified below). (2d Am Comp. i]l 4). Plaintiff further alleges that - ... , Ms. (Haley) Robson recruited Jane Doe to give Epstein a massage for monetary compensation. Ms. Robson brought Jane to Epstein's mansion in Palm Beach. Jane was led up the flight of stairs to the room with the massage table. She was alone in the room when Epstein arrived wearing a towel to cover his private parts. He laid down on the massage table, and sexually assaulted Jane Doe during the massage. In addition, Jeffrey Epstein masturbated during the massage. [2d Am Comp, ,i 12]. ... Jane was paid $200 by Epstein. (2d Am Comp, i]13). 3. Material to this motion, in attempting to assert a claim in Count III pursuant to 18 U.S.C. §2255, Plaintiff alleges in material part that - 29. Epstein used a facility or means of interstate commerce to knowingly persuade, induce or entice Jane Doe, when she was under the age of 18 years, to engage in prostitution or sexual activity for which any person can be charged with a criminal offense. 30. On June 30, 2008, Epstein entered a plea of guilty to violations of Florida §§796.07 and 796.03, in the 15 th Judicial Circuit in and for Palm Beach County (Case Nos .... ), for conduct involving the same plan or scheme as alleged herein. 31. As to Plaintiff Jane Doe, Epstein could have been charged with criminal violations of Florida Statute §796.07(2)(including subsections (c), (d), (e), (f), (g), and (h) thereof), and other criminal offenses Case 9:08-cv-80232-KAM Document 141 Entered on FLSD Docket 05/06/2010 Page 4 of 32 Jane Doe No. 3 v. Epstein Case No. 08-CV-80232-Marra-Johnson Page4 including violations of Florida Statutes §§798.02 and 800.04 (including subsections (5), (6) and (7) thereof). 32. Epstein's acts and conduct are in violation of 18 U.S.C. §2422. 33. As a result of Epstein's violation of 18 U.S.C. §2422, Plaintiff has suffered personal injury, including mental, psychological and emotional damages. 4. In the "WHEREFORE" clause of Count III, Plaintiff "demands judgment against Jeffery Epstein for all damages available under 18 U.S.C. §2255(a), .... " See 2d Am Comp, Count III, Exhibit A hereto. 5. In trying to assert a violation of the federal criminal statute 18 U.S.C. 2422 as the requisite predicate act for a claim pursuant to 18 U.S.C. §2255(a)1, Plaintiff generally tracks the language of subsection (b) of 18 U.S.C. 2422 (eff. Apr. 30, 2003), which states in relevant part - (b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 5 years and not more than 30 years. See endnote 2 for complete text of statute. (See endnote 1 hereto for full text of 18 U.S.C. §2255, the version that applied in 2004, and the amended version effective July 27, 2006.) 6. Epstein never, using a facility or means of interstate commerce, knowingly persuaded, induced or enticed JD3, when she was under the age of 18 years, to engage in prostitution or sexual activity for which any person can be charged with a criminal offense, or attempted to do so. (Deposition Testimony of JD3, taken February 19 2010. Case 9:08-cv-80232-KAM Document 141 Entered on FLSD Docket 05/06/2010 Page 5 of 32 Jane Doe No. 3 v. Epstein Case No. 08-CV-80232-Marra-Johnson Page 5 See pages referenced below herein). A copy of the referenced deposition pages is atta