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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 08-80804-CIV-MARRA/JOHNSON

JANE DOE, a/k/a
JANE DOE NO. 1,

VS.

JEFFREY EPSTEIN,
HALEY ROBSON, and
SARAH KELLEN

OPPOSITION TO REMAND MOTION

Because this case was properly removed under 28 U.S.C. § 1441(a), remand is unwarranted. In response to plaintiffs motion under § 1447(c) for remand and attorneys' fees, defendants Jeffrey Epstein and Sarah Kellen respectfully state as follows:

Introduction

The plaintiff suggests she is insulated from any fraudulent-joinder challenge so long as she has "at least a possibility" of "recover[ing] against Defendant Robson under Florida law for each of the counts in the amended complaint." (DE 11 at 5.) However superficially appealing from a plaintiffs perspective, this argument ignores the corollary that "[t]he potential for legal liability [ under State law] 'must be reasonable, not merely theoretical."' Legg v. Wyeth, 428 F.3d 1317, 1325 n.5 (11th Cir. 2005) (quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)) (emphasis added). See also id. at 1325 (observing that "[t]he removal process was created by Congress to protect defendants," adding that "Congress 'did not extend such protection with one hand, and with the other give plaintiffs a

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bag of tricks to overcome it.'" (quoting McKinney v. Ed. of Trustees of Maryland Cmty. Coll., 955 F.2d 924, 928 (4th Cir. 1992))).

Essentially, the remand motion merely re-states the complaint's allegations against Robson. This is not enough to rebut fraudulent joinder. Cf Ghiglione v. Discover Prop. & Cas. Co., No. C-06-1276 SC, 2006 WL 1095855, at *2 (N.D. Cal. Apr. 25, 2006) (denying motion to remand where plaintiffs, instead of properly analyzing their alleged cause of action, resorted to "quoting from Witkin 's California Procedure a passage that merely repeated the essence of [the governing jurisdictional statute]") ( emphasis added).

Even in the light most favorable to the plaintiff, the allegations are insufficient to establish a cause of action under Florida law against Haley Robson. As a result, after discounting this fraudulently joined defendant, there is complete diversity of citizenship, hence, original jurisdiction in this Court.

Discussion

A. Diversity of Citizenship

Based on a published newspaper report, our removal petition suggested that Jane Doe, despite her allegations of being a citizen of Florida (DE 1 at 62), might actually be a (diverse) citizen of Georgia (DE 1 at 7-8 n.6). If so, the case would be removable, regardless of any claims against defendant Robson. The plaintiff ignored this point. Instead, the plaintiff claimed that "there is a question of whether Defendant Epstein is actually a citizen of Florida because he is now incarcerated in a Florida jail." (DE 11 at 2 n.2.) This statement, besides being nonresponsive, 1 is devoid of merit under binding Eleventh Circuit law, which the plaintiff did not

1 Plaintiff seized upon this non sequitur as an opportunity to attach the "Epstein Sentence" (DE 11 at 2 n.2), an unmarked composite exhibit comprising, among other things, the tenns,

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cite. See Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1314 (11th Cir. 2002) (noting as an undisputed point that someone retains their pre-incarceration domicile for purposes of citizenship under 28 U.S.C. § 1332(a)) (citations omitted); see also Polakoff v. Henderson, 370 F. Supp. 690, 693 (N.D. Ga. 1973), ajf'd, 488 F.2d 977, 978 (5th Cir. 1974) ("A prisoner does not acquire a new domicile in the place of his imprisonment, but retains the domicile he had prior to incarceration.") ( citation omitted) ( emphasis added), cited with approval in Mitchell, 294 F.3d at 1314.

conditions, and sensitive protocols concerning the fact of Epstein's previously disclosed incarceration. See DE 24 in Jane Doe No. 2 v. Epstein, Case No. 9:08-CV-80119-KAM (S.D. Fla. filed Feb. 6, 2008) (disclosing fact of Epstein's criminal sentence and incarceration); DE 19 inJane Doe No. 3 v. Epstein, No. 08-CV-80232-KAM (S.D. Fla. filed Mar. 5, 2008) (same); DE 30 in Jane Doe No. 4 v. Epstein, No. 08-CV-80380-KAM (S.D. Fla. filed Apr. 14, 2008) (same); DE 28 in Jane Doe No. 5 v. Epstein, No. 08-80381-CV-KAM (S.D. Fla. filed Apr. 14, 2008) (same). Being entirely irrelevant to this proceeding, the above exhibit serves only to complement the improper extrajudicial Internet postings by plaintiffs counsel. Compare Ricci~Leopold Home Page, http://www.riccilaw.com (click on "Breaking News," then access the hyperlink entitled, 03/13/08- Consumer Justice Attorney Ted Leopold Files Case to aid Jane Doe in seeking justice against sexual predator Jeffi·ey Epstein and his associates) (characterizing Epstein as a "sexual predator," then using terms like "'vilest"' and"'lurid"'to describe Epstein's alleged conduct (quoting "Ted Leopold, managing partner of the Palm Beach Gardens law firm of Ricci~Leopold")) ( emphasis added) (web site last visited Sept. 3, 2008), with S.D. Fla. Local Rule 77.2(7) (providing that "[a] lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation :from or reference to public records, which a reasonable person would expect to be disseminated by means of public c01mnunication if there is a reasonable likelihood that such dissemination will interfere with a fair trial and which relates (a) [e]vidence regarding the occurrence or transaction involved[;] (b) [t]he character . ..of a party .... [; or] (d) [t]he lawyer's opinion as to the merits of the claims ....") (emphasis added).

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B. Fraudulent Joinder

Even if the plaintiff is a citizen of Florida (after all), there is still complete diversity given that "[a] non-diverse defendant who is fraudulently joined does not defeat diversity." Shenkar v. Money Warehouse, Inc., No. 07-20634-CIV, 2007 WL 3023531, at *1 (S.D. Fla. Oct. 15, 2007) (Moreno, J.) (citing Riley v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 292 F.3d 1334, 1337 (11th Cir. 2002)); accord, e.g., Tedder v. F.MC. Corp., 590 F.2d 115, 117 (5th Cir. 1979) (denying motion to remand where two resident defendants were joined for the fraudulent purpose of defeating federal jurisdiction).2 To say it another way, there is no cause of action here against Haley Robson, and without Haley Robson, there is complete diversity.

This plaintiff originally filed this lawsuit in this court. See Doe v. Epstein, No. 08-CV 80069-KAM (S.D. Fla. filed Jan. 24, 2008). After she was deposed in the state criminal case,3 she dismissed this suit, switched lawyers, and re-filed her claims in state court (DE 1-2 at 62- 70), adding Haley Robson as a nondiverse defendant in an attempt to prevent removal (DE 1-2 at 62).4 After Ms. Robson moved to quash service of process in state court (DE 1-2 at 92-96), the

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en bane), the Eleventh Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.

3 On February 20, 2008, the plaintiff was deposed in State of Florida v. Jeffrey Epstein, 502006CF009454 (Fla. 15th Cir. Ct. filed July 19, 2006). During that deposition, she made numerous admissions that completely undermined the allegations in her complaint. Two days later, she filed a notice of voluntary dismissal without prejudice. See Doe v. Epstein, Case No. 08-CV-80069-KAM, DE 9.

4 The plaintiff, apparently to bolster her untenable theories of indirect tort liability, added another new defendant, Sarah Kellen. (DE 1-2 at 62.) In naming Kellen and Robson as defendants, the plaintiff tried to distinguish this case from a series of effectively identical lawsuits brought in federal court against Epstein: Jane Doe No. 2 v. Epstein, Case No. 9:08- CV-80119-KAM (S.D. Fla. filed Feb. 6, 2008); Jane Doe No. 3 v. Epstein, No. 08-CV-80232- KAM (S.D. Fla. filed Mar. 5, 2008); Jane Doe No. 4 v. Epstein, No. 08-CV-80380-KAM (S.D.

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plaintiff then amended her complaint to assert an additional claim against Robson (DE 1-3 at 101-09), re-using the identical, unmodified general allegations.

Instead of addressing the fact that Robson has "no assets whatever" (DE 1 at 4) and looks every bit the sham defendant, the plaintiff maintains that Robson, a college student, was a "key player" in an alleged RICO "scheme" (DE 11 at 2). Resorting to unswom, inadmissible, improper double-hearsay, the plaintiff proclaims that Robson "has described herself as Heidi Fleiss" (DE 11 at 1 ), the "notorious Hollywood madam" (DE 11 at 1 n.1) - as though sensationalism could convert Ms. Robson into an actual defendant. This "argument" has nothing to do with the issue of removal, offers incompetent non-evidence in an attempt to prejudice the analysis, and fails to establish that the amended complaint contains a single viable cause of action against Robson.

1. The plaintiff has not asserted a cause of action against Robson for civil conspiracy.

The plaintiff, citing to Wright v. Yurko, 446 So. 2d 1162, 1165 (Fla. 5th DCA 1984), concedes that "there muse [sic] be an 'actionable underlying tort or wrong' for an actionable conspiracy claim." (DE 11 at 5.) Yet, the plaintiff still insists that Epstein's "violation of Chapter 800 of the Florida Statutes" (DE 1-3 at 105) is an adequate the basis for her civil conspiracy claim against Robson (DE 1-3 at 105-06), "regardless of whether Defendant Epstein's violation of Chapter 800 of the Florida Statutes also creates a private right of action" (DE 11 at 6). This makes no sense.

As we argued in the removal petition, it is not enough to allege that Robson "merely ...

'conspired to cause ham1"'; again, "[u]nder Florida law, '[a]n actionable conspiracy requires an

Fla. filed Apr. 14, 2008); Jane Doe No. 5 v. Epstein, No. 08-80381-CV-KAM (S.D. Fla. filed Apr. 14, 2008).

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actionable underlying tort or wrong."' Posner v. Essex Ins. Co., 178 F.3d 1209, 1217-18 (11th Cir. 1999) (quoting Florida Fern Growers Ass'n v. Concerned Citizens, 616 So. 2d 562, 565 (Fla. 5th DCA 1993)). In an effort to dodge this requirement, the plaintiff cites Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 917 (11th Cir. 2004), an admiralty case that has nothing to do with Chapter 800, let alone the basic premise (left unaddressed by the plaintiff) that "not every statutory violation carries a civil remedy." Am. Home Assurance Co. v. Plaza Materials Co,p., 908 So. 2d 360, 374 (Fla. 2005) (citing Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 852 (Fla. 2003)).

In Celebrity Cruises, the Eleventh Circuit distinguished "sexual battery" from "sexual assault" under Florida law. Celebrity Cruises, 394 F.3d at 916-17. The court also cited with approval the dissenting opinion in Doe v. Evans, 814 So. 2d 370, 380 (Fla. 2002) (Wells, C.J., dissenting), where Florida Chief Justice Wells admonished against "the use of broad, indefinite, and legally nonspecific language" to establish causes of action under a rubric as expansive as "'sexual misconduct."' Evans, 814 So. 2d at 379-81 (Wells, C.J., dissenting). See also id. at 379 (Wells, C.J., dissenting) (noting that "'sexual misconduct' is a phrase of inherent vagueness and has no meaning in Florida tort law," adding that "[t]orts have defined elements") ( emphasis added). Accordingly, this case serves only to highlight that Florida has never relaxed its pleading requirements simply because a plaintiff describes an event as a "sexual assault." To plead a legal cause of action, the plaintiff still must allege a real, recognized tort.

In trying to obfuscate the basis for her civil-conspiracy claim, the plaintiff has only confirmed that she is relying on Chapter 800, a statute that does not afford a private right of action. Because the statute she expressly pleads provides no civil remedy, the plaintiff cannot prevail on her derivative claim for civil conspiracy.

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2. The plaintiff has not asserted a cause of action against Robson for intentional infliction of emotional distress.

The plaintiff says she agreed to perform an illegal massage "to make some extra money" (DE 11 at 7), only to "suffer severe mental anguish and pain" (DE 1-3 at 106) when her illegal scheme met with an allegedly superseding illegal scheme. To establish a cause ofaction for intentional infliction of emotional distress, however, it is not sufficient to allege that '"the defendant has acted with an intent which is tortious or even criminal, or that [the defendant] has intended to inflict emotional distress, or even that [the defendant's] conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort."' Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985) (quoting Restatement (Second) of Torts § 46 (1965)). Rather, "the conduct as a matter of law must be so outrageous in character and so extreme in degree as to go beyond all possible bounds ofdecency." Southland Corp. v. Bartsch, 522 So. 2d 1053, 1056 (Fla. 5th DCA 1988). Here, when it comes to Robson, the amended complaint fails to meet these standards. 5

Indeed, the plaintiff does not allege that Robson c01mnitted an assault; or that Robson acted forcibly; or that Robson acted coercively. Further, the plaintiff says she undressed, and presumably remained in Epstein's home, out of"shock, fear, and trepidation" (DE 1-3 at 104), not because of anything allegedly done by Robson. These allegations, to the extent they have to do with Robson, do not allege anything that Robson did that is "so extreme in degree as to go beyond all possible bounds of decency." Bartsch, 522 So. 2d at 1056.

The standard for detem1ining IIED "is a matter of law, not a question of fact." Ponton v. Scarfone, 468 So. 2d 1009, 1011 (Fla. 2d DCA 1985) (citation omitted). Even when alleged

5 This Response, in focusing only on fraudulent joinder, does not address the plaintiffs claims against the diverse defendants, Jeffrey Epstein and Sarah Kellen.

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conduct is "condemnable by civilized social standards," it may still "not ascend, or perhaps descend, to a level permitting [a court] to say that the benchmarks enunciated [by the Florida Supreme Court] ... have been met." Id. Further, an IIED claim must be evaluated "as objectively as is possible" to detennine whether the conduct "is 'atrocious, and utterly intolerable in a civilized community."' Id. (quoting McCarson, 467 So. 2d at 278) ( emphasis added).

When it comes to Robson, the plaintiff talks about being double-crossed. But 111 emphasizing her own response to Robson's alleged deception (DE 1-3 at 104), and in explaining her decision to remain in the massage room (DE 1-3 at 103-04), the plaintiff ignores the basic principle that "the subjective response of the person who is the target of the actor's conduct does not control the question of whether the tort [of IIED] occurred." Bartsch, 522 So. 2d at 1056 (citing Ponton, 468 So. 2d at 1011) (emphasis added). Here, the plaintiff alleges, at most, that Robson coordinated an openly illegal transaction with her (DE 1-3 at 103 ), but that Robson did not tell her everything that might happen while she was engaged in her illegal activities. This theory of liability, even in a light most favorable to the plaintiff, is far too attenuated to support an IIED claim.

To start with, the plaintiff acknowledges that she intended "to give Epstein a massage for monetary compensation" (DE 1-3 at 103), even though she was unlicensed, untrained, and unqualified to perfonn this professional service; the plaintiff also acknowledges that she pretended to be 18 (DE 1 at 61). Apart from the fact that plaintiffs conduct is flatly proscribed by Florida's criminal code, see Fla. Stat. § 480.047, these allegations, when viewed "as objectively as is possible," simply do not implicate Robson, an alleged go-between for plaintiffs own criminality, in something "'atrocious, and utterly intolerable in a civilized community"' for

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purposes of establishing an IIED claim. Ponton, 468 So.2d at 1011 (quoting McCarson, 467 So. 2d at 278).

Even if the plaintiff was "shock[ed]" (DE 1-3 at 104) to learn that Robson had engineered some sort of misdirection, that is still not enough to support an IIED claim against Robson. Again, it is not "' enough that the defendant has acted with an intent which is tortious or even criminal, or that [the defendant] has intended to inflict emotional distress, or even that [the defendant's] conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort."' McCarson, 467 So. 2d at 278 (quoting Restatement (Second) of Torts§ 46 (1965)).

Here, the amended complaint does not allege that Robson knew an alleged assault would take place; besides which, the plaintiff says she was assaulted by someone else (DE 1-3 at 104--05). See Baker v. Fitzgerald, 573 So. 2d 873, 873 (Fla. 3d DCA 1990) (per curiam) ("Appellant's claim for intentional infliction of emotional distress fails because there was no showing of outrageous conduct directed at the appellant herself.") ( emphasis added). Further, there is nothing in the record to suggest that Robson knew the plaintiff would remove her clothing, or stay in the massage room, out of "shock, fear and trepidation" (DE 1-3 at 104), when the plaintiff was never coerced, by Robson, to do anything. Cf Habelow v. Travelers Ins. Co., 389 So. 2d 218, 220 (Fla. 5th DCA 1980) (affirming dismissal of claim for intentional infliction of emotional distress where there were "no allegations ... indicating that [the plaintiff] was particularly sensitive or susceptible to emotional distress, or that [the defendant] had any basis to know she was" (citing Steiner & Munach, P. A. v. Williams, 334 So. 2d 39 (Fla. 3d DCA 1976))).

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For these reasons, the plaintiff has not stated a cause of action against Robson for intentional infliction of emotional distress.

3. The plaintiff has not asserted a cause of action against Robson for civil RICO.

The plaintiff, again substih1ting superficially framed legal standards for actual analysis, says she "was directly harmed by the [defendants'] scheme." (DE 11 at 9.) This bare assertion completely ignores the RICO discussion presented in the removal petition (DE 1 at 19-21), but more important, refuses to acknowledge that section 772.104 allows someone to bring a civil RICO claim only if "she has been injured by reason of" any RICO violation. § 772.104, Fla. Stat. (2007) ( emphasis added).

Here, the plaintiff clearly alleges that she was injured as a result of "a sexual assault ... in violation of Chapter 800 of the Florida Statutes" (DE 1-3 at 105), a statute that has nothing to do with, and does not constitute a predicate act in furtherance of, Florida RICO. Cf § 772.104, Fla. Stat. (listing predicate acts for Florida RICO). The plaintiff hardly establishes a RICO claim merely by reciting that she "was a victim of Defendants' scheme because she was one of the underage girls found and delivered to Defendant Epstein by Defendant Robson and that she endured Epstein's actions as he tried to get her to engage in, and forced upon her, acts of prostih1tion and lewdness." (DE 11 at 9.) Not just in this passage, but indeed throughout her entire amended complaint, the plaintiff uses the term "scheme" as though it were a password for gaining access to RICO standing. Cf Newton v. Tyson Foods, Inc., 207 F.3d 444, 447 (8th Cir. 2000) (observing in the context of indirect and attenuated RICO allegations that "[t]he mere recitation of the chain of causation alleged by the plaintiffs is perhaps the best explanation of why they do not have standing in this case").

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In sum, the plaintiff has said nothing to rebut what remains obvious: that her entire lawsuit, including her RlCO claim, rests on an alleged "sexual assault ... in violation of Chapter 800 of the Florida Statutes." (DE 1-3 at 105.) Thus, the plaintiff has failed to allege a cause of action against Haley Robson. See Baisch v. Gallina, 346 F.3d 366, 373 (2d Cir. 2003) ("[A] plaintiff does not have standing if [s]he suffered an injury that was indirectly (and hence not proximately) caused by the racketeering activity or RlCO predicate acts, even though the injury was proximately caused by some non-RICO violations committed by the defendants.") (emphasis added); Hoatson v. New York Archdiocese, No. 05 Civ. 10467, 2007 WL 431098, at *12 (S.D.N.Y. Feb. 8, 2007) (dismissing RlCO claim with prejudice where amended complaint was "wholly devoid of a single act which constitutes a racketeering activity," even though the plaintiff had '"alleged a larger picture"' involving, among other things, allegations of sexual abuse) (emphasis added).

By re-writing Florida's RlCO statute to encompass Chapter 800, the plaintiff once again seeks (hypothetical) damages against Haley Robson without any statutory basis. This tactic, besides being ineffectual to prevent removal, flouts the fact that "the RlCO statute is complex, arcane, and difficult to plead." Id. Cf id. at **12-16 (imposing sanctions in response to baseless RICO claim brought against the backdrop of sexual-abuse allegations, observing that "[t]he immediate link between the filing of the complaint and the press conference [held by the plaintiffs counsel] support[ s] the inference that [ there was an] intent[] . . . to injure [ the defendants' reputation by bringing a RlCO claim]").

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Although asserting a RICO claim may be part of the plaintiffs media strategy,6 it is without legal merit and cannot operate to prevent removal.

Conclusion

Based on the foregoing, and the plaintiffs failure to address, let alone rebut, the fraudulent-joinder arguments presented in the removal petition, neither remand nor attorneys' fees are warranted in this case.

Respectfully submitted,

LEWIS TEIN, P.L.
3059 Grand Avenue, Suite 340
Coconut Grove, Florida 33133
Tel: 305 442 1101
Fax: 305 442 6744

By:  Isl Michael R. Tein
GUY A. LEWIS
Fla. Bar No. 623740
lewis@lewistein.com 
MICHAEL R. TEIN
Fla. Bar No. 993522
tein@lewistein.com

ATTERBURY, GOLDBERGER &
WEISS,P.A. 
250 Australian Avenue South, Suite 1400
West Palm Beach, Florida 33401
Tel. 561 659 8300
Fax. 561 835 8691

By: Jack A. Goldberger
Fla. Bar No. 262013
j goldberger@agwpa.com

6 See Ricci~Leopold Home Page,http://www.riccilaw.com (click on "Breaking News," then access the hyperlink entitled, 03113108 - Consumer Justice Attorney Ted Leopold Files Case to aid Jane Doe in seeking justice against sexual predator Jeffrey Epstein and his associates) (highlighting RICO count in first sentence of press release) (last visited on Sept. 3, 2008).

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BURMAN, CRITTON, LUTTIER &
COLEMAN, LLP
515 N. Flagler Drive, Suite 400
West Palm Beach, Florida 33401
Tel. 561 842 2820
Fax. 561 515 3148

By: Robert D. Critton, Esq.
Fla. Bar No. 224162
rcritton@bclclaw.com 
Michael J. Pike, Esq.
Fla. Bar No. 617296
mpike@bclclaw.com

Attorneys for Defendant Jeffrey Epstein

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1

Undersigned counsel has conferred in good faith with counsel for the plaintiff, who opposes the relief requested in this motion.

Counsel for co-defendant Haley Robson agrees to the positions taken m this memorandum.

Isl Michael R. Tein
Michael R. Tein

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 5, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on counsel ofrecord identified below by U.S. Mail.

Isl Michael R. Tein
Michael R. Tein

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SERVICE LIST

Theodore J. Leopold, Esq.
Ricci-Leopold, P.A.
2925 PGA Blvd., Suite 200
Palm Beach Gardens, FL 33410
Fax: 561 697 2383
Counsel for PlaintiffJane Doe

Douglas M. McIntosh, Esq.
Jason A. McGrath, Esq.
McIntosh, Sawran, Peltz & Cartaya, P.A.
Centurion Tower
1601 Forum Place, Suite 1110
West Palm Beach, Florida 33401
Fax. 561 682-3206
Counsel for Defendant Haley Robson

Bruce E. Reinhart, Esq. (US. Mail)
Bruce E. Reinhart, P.A.
250 South Australian Avenue
Suite 1400
West Palm Beach, Florida 33401
Fax. 561 828 0983
Counsel for Defendant Sarah Kellen

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court-records/Doe v. Epstein, No. 908-cv-80804 (S.D. Fla. 2008)/021.pdf
{"year":"2008","court":"S.D. Fla","people":["jeffrey epstein","haley robson","sarah kellen","theodore j. leopold"]}