048.pdf

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. :..;. r.~ ._ ~'r•! _. . ~-~ . .. -· ---( -!_ :,__: .:-;::-: SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and L.M., individually, C_'. C) , - , -:::, .; -.. Defendants. ------------'' EPSTEIN'S MOTION FOR JUDGMENT ON THE PLEADINGS OR ALTERNATIVE MOTION FOR SUMMARY JUDGMENT ON EDWARDS' COUNTERCLAIM FOR ABUSE OF PROCESS .,_ .. .t.."', . ,-.~,, ~ .' Plaintiff/Counter-Defendant, JEFFREY EPSTEIN ("Epstein"), pursuant to Fla. R. Civ. P. 1.140(c), moves for judgment on the pleadings or, alternatively, moves for summary judgment pursuant to Fla. R. Civ. P. 1.51 0(b), on the Counterclaim for abuse of process filed by Defendant/Counter-Plaintiff, Bradley J. Edwards ("Edwards"), and states: Background and Procedural Posture 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 8) reflecting that "upon stipulation of counsel [ ], the claim is solely an abuse of process NOT A CERTIFIED COPY Epstein v. Rothstein, et al. Case No. 50 2009CA040800XXXXMB AG Epstein's Motion for Judgment on the Pleadings on Edwards's Counterclaim Page 2 of6 claim." 4. On March 15, 2010, Epstein filed his Answer and Affirmative Defenses to Edwards's Counterclaim (attached as Exhibit C). 5. Edwards fails to sufficiently plead and has no evidence to support a claim against Epstein for abuse of process. Therefore Epstein is entitled to judgment on the pleadings or, alternatively, summary judgment. Legal Standard 6. In passing on a motion for judgment on the pleadings made by defendant, "all well pleaded material allegations of the complaint and all fair inferences to be drawn therefrom must be taken as true and the inquiry is whether the plaintiff has stated a cause of action by his complaint." See Reinhard v. Bliss, 85 So. 2d 131, 133 (Fla. 1956); Martinez v. Florida Power & Light Co., 863 So. 2d 1204, 1205 (Fla. 2003); Lutz v. Protective Life Ins. Co., 951 So. 2d 884, 888 (Fla. 4th DCA 2007). "The test we apply in this instance is the same as if defendant has made a motion to dismiss the complaint for 'failure to state a cause of action' under [Fla. R. Civ. P. 1.140(b)]." See Bliss, 85 So. 2d at 133; Martinez, 863 So. 2d at 1205; see also Lutz, 951 So. 2d at 888 (holding that "[j]udgment on the pleadings may be granted when the moving party is clearly entitled to a judgment, as a mater of law, based solely on the content of the pleadings."). 7. A movant is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is not genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Fla. R. NOT A CERTIFIED COPY Epstein v, Rothstein, et al. Case No. 50 2009CA040800XXXXMB AG Epstein's Motion for Judgment on the Pleadings on Edwards's Counterclaim Page 3 of 6 Civ. P. 1.510(c). However, a defendant is entitled to summary judgment "when there is a complete absence of evidence to support the plaintiff's claims." See Laschke v. Brown & Williamson Tobacco Corp., 766 So. 2d 1076, 1077 (Fla. 2d DCA 2000), citing Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966). Argument 8. Epstein is entitled to judgment on the pleadings or, alternatively, summary judgment on Edwards's Counterclaim for abuse of process because Edwards fails to allege, and there is absolutely no evidence of, any wrongful act or misuse of process after the initial process was issued. 9. 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 1J9. 10. These allegations fall short of establishing 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 NOT A CERTIFIED COPY Epstein v. Rothstein, et al. Case No. 50 2009CA040800.XXXXMB AG Epstein's Motion for Judgment on the Pleadings on Edwards's Counterclaim Page 4 of6 for abuse of process because they failed to alleged an act which constituted misuse of the process after it was issued). 11. Additionally, the allegation that Epstein filed the claims against Edwards to intimidate him is inapposite. In Della-Donna v. Nova University, Inc., 512 So. 2d 1051, 1055 (Fla. 4th DCA 1987), the court granted summary judgment in favor of defendant on plaintiff's abuse of process claim, finding that the defendant demonstrated the nonexistence of a genuine issue of material fact since there was no allegation or evidence of any act by defendant which constituted misuse of process after it was issued. The court further noted that "filing a lawsuit with ulterior motive of harassment does not constitute abuse of process." kl at 1056. 12. In Marty v. Gresh, 501 So. 2d 87, 90 (Fla. 1st DCA 1987), the court reversed a jury verdict in favor of plaintiff on his abuse of process claim and reasoned that 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 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). The court concluded that "the trial court should have granted [defendant's] motion for a directed verdict" on plaintiffs abuse of process claim. kl 13. Equally unavailing is Edwards's allegation that Epstein ignored the prior written notice requirement to initiate a civil theft claim. See Counterclaim 1J10. In Miami Herald Publishing Co. v. Ferre, 636 F.Supp. 970, 974-75 (S.D. Fla. 1985), the court held NOT A CERTIFIED COPY Epstein v. Rothstein, et al. Case No. 50 2009CA040800XXXXMB AG Epstein's Motion for Judgment on the Pleadings on Edwards's Counterclaim Page 5 of 6 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 requir