Case 9:08-cv-80380-KAM Document 31 Entered on FLSD Docket 07/18/2008 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80380-MARRA/JOHNSON
JANE DOE NO. 4,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
____________________________________/
PLAINTIFFS MEMORANDUM OF LAW IN
RESPONSE TO DEFENDANTS MOTION FOR STAY
Plaintiff, Jane Doe No. 4, by and through her undersigned counsel, submits this
Memorandum of Law in Response to Motion for Stay, as follows:
INTRODUCTION
Defendant Jeffrey Epsteins Motion to Stay this action is based on the incorrect premise that
there are criminal actions pending against him in Palm Beach Circuit Court, State of Florida v.
Jeffrey Epstein, Case No. 2006 CF 09454 AXXMB (Fifteenth Judicial Circuit, Palm Beach County),
and in the Southern District of Florida, In re Grand Jury, No. FGJ 07-103 (WPB) (S.D. Fla.). The
Motion to Stay as to the state court criminal action was rendered moot on June 30, 2008 when
Jeffrey Epstein entered a plea of guilty to violations of Florida Statute 796.07 (felony solicitation of
prostitution) and 796.03 (procurement of minors to engage in prostitution) in the state criminal
action. (See Defendants Notice Concerning Motion to Stay dated July 1, 2008). Jeffrey Epstein,
now an admitted sex offender, was sentenced to a term of imprisonment followed by community
control and sex offender registration.
As to the federal prosecution, Defendants mistitled Notice of Continued Pendency of

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Federal Criminal Action, which has now been unsealed, makes clear that there is in fact no criminal
federal action pending. This Notice discloses a confidential Agreement between the U.S. Attorney
and Defendant, the terms of which were triggered when Epstein began serving his state imposed
criminal sentence. Under the Agreement, according to the Notice, the U.S. Attorney agreed to
suspend its grand jury investigation, while retain[ing] the right to reactivate the grand jury and
indict Mr. Epstein should he breach any part of the Agreement during its term, which runs for 33
months, beginning on the date Mr. Epstein began serving his sentence in the Florida Criminal
Action. (The terms of this Agreement are also described in the notice letter to the victim Plaintiff, a
redacted copy which is attached hereto as Exhibit A.) Accordingly, as represented in Defendants
own filing, Mr. Epstein is not under indictment and the grand jury is not active in his case. There is
simply no pending criminal action, a necessary prerequisite for a stay under 28 U.S.C. 3509(k).
Additionally, the stay provision of 18 U.S.C. 3509(k) is limited to circumstances in which the
plaintiff is a a person who is under the age of 18 The Statute is therefore inapplicable in that
Plaintiff is not a minor, and was not a minor when she filed this lawsuit. The Motion is also
procedurally defective because (i) Defendant failed to comply with the Local Rules of the United
States District Court for the Southern District of Florida in that Defendants counsel neither
conferred nor attempted to confer with counsel for the Plaintiff as to the relief request prior to filing
the Motion to Stay; and (ii) in light of changed circumstances after the filing of the Motion to Stay,
the Motion fails to inform the Plaintiff or the Court of the grounds for the relief sought.
For the foregoing reasons, Defendants Motion to Stay must be denied in its entirety.

THE DEFENDANT HAS NOT DEMONSTRATED THAT

28 U.S.C. 3509(k) IS APPLICABLE AND A STAY MANDATED

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As the movant, it is the Defendants burden to demonstrate that the requirements for a stay
have been met. He has not met this burden. 18 U.S.C. 3509(k) states as follows:
Stay of civil action. -- If, at any time that a cause of action for recovery of
compensation for damage or injury to the person of a child exists, a criminal action
is pending which arises out of the same occurrence and in which the child is the
victim, the civil action shall be stayed until the end of all phases of the criminal
action and any mention of the civil action during the criminal proceeding is
prohibited. As used in this subsection, a criminal action is pending until its final
adjudication in the trial court.
(emphasis added).
A threshold inquiry in determining whether to invoke the stay provision of 18 U.S.C.
3509(k) is whether the plaintiff in a civil action is also the victim of a criminal action . . . pending
which arises out of the same occurrence and in which the child is the victim. (Emphasis
supplied). Given Jeffrey Epsteins plea of guilty to the criminal charges in the state case and the
Agreement entered into with the U.S. Attorney, his argument that a stay of this lawsuit should be
granted because of pending criminal charges appears at this point to be specious. Nonetheless,
Defendant Epstein represents to this Court in his Notice Concerning Motion to Stay dated July 1,
2008 that the federal criminal proceeding . . . remains pending. No further explanation is
provided. The argument supporting this assertion is unknown to Plaintiff. 1 There is no indication in
the statutory language or elsewhere that 18 U.S.C. 3509(k) can be applicable in a situation, such as
here, where there is an agreement concerning federal crimes but there has been no indictment.
The notice letter attached hereto as Exhibit A further sets forth one of the conditions
imposed by Mr. Epsteins Agreement with the U.S. Attorney, as follows: Any person [including

The developments relating to the Defendants plea deal arose after the Defendant filed his Motion
to Stay. As a result, the Motion does not explain why a stay is justified under the present
circumstances. Plaintiff is at a disadvantage in filing this Memorandum in Response, and is left to
guess as the present grounds for the Motion. For this reason alone, the Motion should be denied.
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this plaintiff], who while a minor, was a victim of a violation of an offense enumerated in Title 18,
United States Code, Section 2255, will have the same rights to proceed under Section 2255 as she
would have had, if Mr. Epstein had been tried federally and convicted of an enumerated offense.
Thus, not only is a necessary prerequisite for a statutory stay missing in that no criminal case is
pending, but a stay under 28 U.S.C. 3509(k) would be inconsistent with Mr. Epsteins Agreement
with the U.S. Attorney, which contemplates civil claims by victims pursuant to federal law.
Defendant Epstein apparently contends that a stay should nonetheless apply for the next 33 months,
preventing for this extended period the civil litigation of these claims, to see if Mr. Epstein complies
with his Agreement. Needless to say, this would be absurd. It cannot be seriously argued in the
circumstances of this case that a stay under 28 U.S.C. 3509(k) is mandated because there is a
pending federal criminal action.
18 U.S.C. 3509(k) DOES NOT AUTHORIZE A STAY
OF A CIVIL LAWSUIT FILED BY AN ADULT PLAINTIFF
Even if there were a criminal case pending, which there is not, 18 U.S.C. 3509(k) would not
apply to the claim of a child victim who is now an adult. This Statute applies in situations in which a
child who has been the victim of sexual abuse is the plaintiff in a civil lawsuit at the same time that
the child is a victim in a criminal proceeding arising out of the same occurrence. That is not the case
here. The Plaintiff is an adult and was an adult at the time she filed this civil lawsuit. Defendant
misinterprets 18 U.S.C. 3509(k) to suggest that the Statute also applies in instances where an adult
plaintiff in the civil lawsuit was a victim of sexual abuse during childhood. A careful reading of the
definitions section of 18 U.S.C. 3509 reveals that Defendants interpretation is incorrect. See 18
U.S.C. 3509(a)(2) (defining child as person who is under the age of 18).
18 U.S.C. 3509(k) states, in relevant part, as follows:

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(k) Stay of civil action. -- If, at any time that a cause of action for recovery of
compensation for damage or injury to the person of a child exists, a criminal
action is pending which arises out of the same occurrence and in which the child is
the victim, the civil action shall be stayed until the end of all phases of the criminal
action.
(emphasis added).
18 U.S.C. 3509(2) defines as a child as a person who is under the age of 18. Thus, the term
child is limited for purposes of 18 U.S.C. 3509 to a person who is currently under the age of 18.
While the statute could have been written to say a person who is under the age of 18 or was under
the age of 18 at the time of the abuse, it does not. Yet, this is the precise interpretation suggested
by the Defendant.
The plaintiffs interpretation of 18 U.S.C. 3509(k) is not only consistent with the plain
language of the statute, but also with the policies underlying the stay provision. The statute is
designed to protect children who are involved in legal proceedings arising from physical, sexual, or
mental abuse. For instance, 18 U.S.C. 3509 provides protections for persons under the age of 18,
including alternatives to live in-court testimony, competency examinations, psychological
examinations, privacy issues, filing under seal, closing the courtroom, the handling of videotaped
testimony, adult attendants, speedy trials, the use of guardians ad litem and testimonial aids. Each of
these protections is only implicated when the victim is under the age of 18. See 18 U.S.C.
3509(a)(2). In the context of a civil lawsuit, a child similarly needs protection from the possibility
of concurrent proceedings involving deposition or trial testimony, psychological examinations, and
competency examinations. Moreover, the use of a stay of a civil lawsuit involving a child-plaintiff
may be particularly warranted in circumstances where the child may not have had made the decision
to file the lawsuit in the first instance. Thus, the law protects the children from multiple concurrent
proceedings. These concerns do not exist to the same degree when a competent adult such as the

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Plaintiff elects to file suit on her own behalf. Yet, the Defendant seeks to carve out an exception
where none exists by arguing that the Stay of Civil Action provision in subsection (k) must be
applied to victims who are 18 or older who were under the age of 18 at the time of their abuse. This
argument is unsupported by the statute or its underlying policies.
The unpublished, trial court decisions cited by Defendant of Doe v. Francis, 2005 WL
517487 (N.D. Fla. Apr. 20, 2005) (Francis I) and Doe v. Francis, 2005 WL 950623 (N.D. Fla. Apr.
20, 2005) (Francis II) are readily distinguishable.

The Plaintiffs in Francis I and Francis II

offered no legal authority or evidence to support their argument that the stay should be lifted.
Francis II, at *1. By contrast, in this case, the Plaintiff has cited the definition of child found in 18
U.S.C. 3509(a)(2). The Francis cases also involved seven plaintiffs, three of whom were victims in
the criminal case. That is not the case here were the only plaintiff in this lawsuit is not a victim in a
pending criminal case. Additionally, the stay in the Francis cases was imposed before the plaintiffs
reached the age of majority. Here, the civil lawsuit was not even filed until after the plaintiff
reached the age of majority.
DEFENDANTS MOTION SHOULD BE DENIED IN THAT
DEFENDANT DID NOT CONFER WITH PLAINTIFFS
COUNSEL PRIOR TO FILING HIS MOTION, AND THE MOTION
FAILS TO INFORM PLAINTIFF OR THE COURT OF THE
GROUNDS FOR RELIEF IN LIGHT OF CHANGED CIRCUMSTANCES
Defendants Motion should be denied in that Defendant failed to comply with the Local
Rules of the United States District Court for the Southern District of Florida in that Defendants
counsel neither conferred nor attempted to confer with counsel for the Plaintiff as to the relief
request prior to filing the Motion to Stay. See S.D. Fla. L. R. 7.1.A.3. Notably, Defendants Motion
also contains no certification as to any such attempt as required by the Local Rules. See id. The
Local Rules provide that the [f]ailure to comply with the requirements of this rule may be cause for

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the court to grant or deny the motion and impose on counsel an appropriate sanction, which may
include an order to pay the amount of the reasonable expenses incurred because of the violation,
including a reasonable attorneys fee. Id.
Finally, when the circumstances materially changed after the filing of the Motion, it was
incumbent upon the Defendant to either withdraw the Motion or at least amend it to explain the
grounds for a stay in light of the plea deal. Defendant has not done so, to the prejudice of Plaintiff in
preparing this Memorandum in response. For this reason alone the Motion to Stay should be denied.
CONCLUSION
Based on the foregoing, Plaintiff requests that this Court deny Defendants Motion to Stay
pursuant to Title 18, United States Code, Section 3509(k) in its entirety, award attorneys fees to
Plaintiff for Defendants failure to comply with Southern District of Florida Local Rule 7.1.A.3, and
all other relief this Court deems just and appropriate.
Dated: July 18, 2008.

Respectfully submitted,

By:

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s/ Jeffrey M. Herman ______

.
Jeffrey M. Herman (FL Bar No. 521647)
[email protected]
Stuart S. Mermelstein (FL Bar No. 947245)
[email protected]
Adam D. Horowitz (FL Bar No. 376980)
[email protected]
HERMAN & MERMELSTEIN, P.A.
Attorneys for Plaintiffs Jane Doe
18205 Biscayne Blvd., Suite 2218
Miami, Florida 33160
Tel: 305-931-2200
Fax: 305-931-0877

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CERTIFICATE OF SERVICE

I hereby certify that on July 18, 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
to all parties on the attached Service List in the manner specified, either via transmission of Notices
of Electronic Filing generated by CM/ECF or in some other authorized manner for those parties who
are not authorized to receive electronically Notices of Electronic Filing.

/s/ Jeffrey M. Herman

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SERVICE LIST
DOE vs. JEFFREY EPSTEIN
CASE NO.: 08-CV-80380-MARRA/JOHNSON
United States District Court, Southern District of Florida

Jack Alan Goldberger

[email protected]
Michael R. Tein
[email protected]
/s/ Jeffrey M. Herman

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EXHIBIT A

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