Case 9:10-cv-80309-KAM

Document 15

Entered on FLSD Docket 04/12/2010

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# UN1TED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

# CASE NO. 10-80309-CIV-

JANE DOE No. 103,

Plaintiff,

VS.

JEFFERY EPSTEIN,

Defendant.

DEFENDANT EPSTEIN'S MOTION TO AMEND DEFENDANT'S MOTION TO DISMISS. & FOR MORE DEFINITE STATEMENT & STRIKE DIRECTED TO PLAINTIFF JANE DOE NO. 103'S COMPLAINT(dated 4/5/2010)

Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and through his undersigned counsel, moves to amend by his previously filed Motion To Dismiss, & Motion For More Definite Statement & Strike Directed To Plaintiff JANE DOE I 03 's Complaint, (hereinafter "Motion To Dismiss"), dated and filed April 5, 2010. In support of his motion, Defendant states:

1. On April 5, 2010, Defendant previously filed with this Court his Motion To Dismiss. Defendant seeks dismissal of Count VI, which is brought pursuant to 18 U.S.C. §2255, because Plaintiff is relying on a criminal predicate act enumerated in §2255 that did not come into effect until after the alleged time period of the alleged conduct by Defendant involving Plaintiff. I 8 U.S.C. §2252A(g), the criminal statute relied upon by Plaintiff in attempting to assert her §2255 claim in Count VI, was not enacted until 2006; the allegedly violative conduct by Defendant occurred, according to Plaintiffs own

Case 9:10-cv-80309-KAM

Document 15

Entered on FLSD Docket 04/12/2010

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allegations, beginning in January 2004 until approximately May 2005. As argued in Defendant's motion to dismiss, Count VI is required to be dismissed because it violates the constitutional principles against retroactivity. See pages 3-11 of Defendant's motion to dismiss.

2. Defendant is not seeking to raise a new argument, but is seeking to clarify the argument made in his motion to dismiss (pp. 3-11 ). Under the heading - "Motion To Dismiss" - at page 3-4, in the first paragraph, Defendant states in part that - "However, subsection (g) of §2252 was not added to the statute until 2006. Thus, to the extent that Plaintiff is relying on the amended version of §2255, such reliance is improper and Count VI is required to be dismissed as it relies on a statutory predicate act that did not exist at the time of the alleged conduct."

3. Defendant seeks to add the following sentences (paragraph) after the first paragraph, at page 4, to clarify the argument being made.

According to Plaintiffs allegations, the alleged conduct of EPSTEIN directed to Plaintiff occurred beginning in January 2004 until approximately May 2005. In Count VI, in attempting to assert a claim pursuant to 18 U.S.C. §2255, Plaintiff is relying on subsection, (g)(l) and (2), of the criminal statute 18 U.S.C. §2252A as the requisite predicate act. Subsection (g) of §2252A was not even in existence at the time of the alleged conduct. Subsection (g) was enacted in 2006, effective July 27, 2006. See 2006 Amendments; Pub.L. 109-248, § 701, added subsec. (g). 18 U.S.C.A. § 2252A. As discussed more fully below herein, reliance on subsection (g) violates the well entrenched constitutional principles against retroactivity, and, thus, Count VI is required to be dismissed.

Case 9:10-cv-80309-KAM

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4. Defendant also adds a sentence in the introductory paragraph of the Amended Motion To Dismiss, attached hereto as Exhibit A, simply stating that it is an amended motion.

5. Such amendment is in the interest of justice and will allow both the Court and the Plaintiff to understand and address the argument made by Defendant in his motion to dismiss.

6. Defendant further requests that the Amended Motion To Dismiss, Exhibit A hereto, be deemed filed as of the date of this motion.

7. Pursuant to Rule 15(a)(2), Fed.R.Civ.P., Defendant sought the consent of the opposing party as to the above amendment/supplement to his motion to dismiss. Plaintiffs counsel did not oppose the amendment/supplement.

WHEREFORE, Defendant respectfully requests that this Court enter an Order granting Defendant's motion and deeming as filed as of the date of this motion Defendant's Amended Motion To Dismiss, & Motion For More Definite Statement & Strike Directed To PlaintiffJANE DOE 103 's Complaint, attached hereto as Exhibit A.

Isl  Robert D. Critton
Robert D. Critton, Esq.
Attorney for Defendant

## Certificate of Service

I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this Jzt11 day of April, 2010.

Robert C. Josefsberg, Esq.
Katherine W. Ezell, Esq.

Jack Alan Goldberger, Esq.
Atterbury Goldberger & Weiss, P.A.

Case 9:10-cv-80309-KAM

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Entered on FLSD Docket 04/12/2010

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Podhurst Orseck, P.A.
25 West Flagler Street, Suite 800
Miami, FL 33130
305 358-2800
Fax: 305 358-2382
riosefsberg@podhurst.com 
kezell@podhurst.com 
Counsel for Plaintiff

250 Australian Avenue South
Suite 1400
West Palm Beach, FL 33401-5012
561-659-8300 
Fax: 561-835-8691
jagesg@bellsouth.net 
Counsel/or Defendant Jeffrey Epstein

Respectfully submitted,

By:  Isl  Robert D. Critton
ROBERT D. CRITTON, JR., ESQ.
Florida Bar No. 224162
rcrit@bclclaw.com 
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpike@bclclaw.com 
BURMAN, CRITTON, LUTTIER &
COLEMAN 
303 Banyan Blvd., Suite 400
West Palm Beach, FL 33401
561/842-2820 Phone
561/515-3148 Fax
(Counsel/or Defendant Jeffrey Epstein)
documents/doj-a5fb737b07652a34.pdf
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