Giuffre v. Prince Andrew
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Opinion
uspcspny——~*@~d UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED || Toros ese ester eee eee cere sees esos Xk DOC Ho
Plaintiff, :
-against- 21-cv-6702 (LAK)
PRINCE ANDREW, Duke of York, in his personal capacity, also known as Andrew Albert Christian Edward, Defendant. Seem em eee eee eee ee ee ee ee ee ee HK
OPINION
Appearances: David Boies Sigrid McCawley □ Andrew Villacastin Erika Nyborg-Burch Sabina Mariella BOIES SCHILLER FLEXNER LLP Attorneys for Plaintiff Andrew B. Brettler □ Melissa Y. Lemer LAVELY & SINGER P.C, Attorneys for Defendant
Table of Contents
Facts eee tener cere eer teeter □ ~The Epstein Sex Trafficking Scheme □□ 0.0.0... □□ cee cece cece □□□ Defendant’s Relationship with Epstein and Maxwell... 2.0.00... cece eee eee eee 3d Epstein Recruits Plaintiff... 0.0... ce cece □□□ eee □□ Defendant’s Alleged Sexual Abuse ....... 0... 0c cece cee eee eee eee teed The Florida State Prosecution and the Federal Non-Prosecution Agreement...........6 Ms. Giuffre’s Florida Suit Against Epstein 6.0... eee tee □□ The Federal Criminal Case Against Epstein... 0.00... cee □□ The 2009 Agreement... 0... cece cette tee teen teen ees LO 6 ke eee eee eee teeta eee LL I. Dismissal on the Basis of the 2009 Agreement Is Not Justified on this Motion A, Legal Principles..... 00.0... cece eee eee eee ee AL 1, Materials Properly Considered... 0.0.0.0... cc eee ee ee ee Ad 2, Governing Law... 0... cette □□ AQ B. Analysis of the 2009 Agreement... 2.00020. ce eee ee □□ 1. Whether the Defendant Is Among the Purportedly Released Persons 2. Whether Defendant is Entitled to Enforce the Release as a Third Party Beneficiary of the 2009 Agreement...................22 a. Relevant Provisions of the Agreement...............23 b. Defendant’s Cases Are Inapposite □□□□□□□□□□□□□□□□□□□□□ c. The Dershowitz Argument □□□□□□□□□□□□□□□□□□□□□□□□□□□ Il. The Complaint States Legally Sufficient Claims ..... 0.0.0.0. cece eee eee SL A. Legal Principles. .....0.0. 0.0.0 ccc cece eee reece □□ B. Analysis... eect eter tenner nett □□ 1. The Complaint Is Legally Sufficient.......................32 2, Defendant’s Contention that the Plaintiff Was Obliged to Plead Specific Facts Demonstrating Violation of the New York Penal Law Is Incorrect □□ 0.0 ccc ce eee eee ene es □□ 3. Plaintiff's TED and Battery Claims Are Not Duplicative ......35 fil. The Attack on the Constitutionality of the New York Child Victims Act Is Without Mefit 0. eee teen teen ee tee teen □□ IV. Defendant Is Not Entitled to a More Definite Statement. He Will Get the Detail He Seeks During Discovery ..... 0.00.0. ccc eee eee eee □□ Conclusion 2.0... ec eee eee eee eee eet ee eee ee □□
LEWISALKAPLAN, Disrictudge
Virginia Roberts Giuffie brings this action against defendant Prince Andrew,
_ Duke of York, for battery and intentional infliction of emotional distress. In short, she alleges that the late J effrey Epstein and others trafficked her to Prince Andrew who took advantage of the situation by sexually abusing her when she was under the age of eighteen,
Defendant denies Ms. Giuffre’s allegations and attacks her credibility and motives, He asserts that she was complicit in Epstein’s unlawful activities. But this is a motion to dismiss Ms. Giuffre’s complaint as legally insufficient — not to determine the truth or falsity of charges in
hercomplaint. And defendant relies mainly, although notexclusively, on a2009 agreement between Ms. Giuffre and Epstein that settled a different lawsuit, between Giuftre and Epstein, that defendant now argues released him from any liability to Ms. Giuffre. The fact that defendant has brought the matter before the Court on a motion ta dismiss the complaint as legally insufficient is of central importance, As is well known to lawyers
perhaps not known to the lay public, the defendant - by making this motion — placed upon the Court the unyielding duty to assume — for the purposes of this motion only — the truth of all of plaintiff's allegations and to draw in plaintiff's favor all inferences that reasonably may be drawn from those allegations.’ In consequence, the law prohibits the Court from considering at this stage of the proceedings defendant's efforts to cast doubt on the truth of Ms. Giuffre’s allegations, even though his efforts would be permissible at a trial. In a similar vein and for similar reasons, it is not open to the Court now to decide, as a matter of fact, just what the parties to the release in the 2009
E.g, Littlejohn v. City of New. York, 795 F.3d 297, 306 (2d Cir, 2015) (“On a motion to dismiss, ail factual allegations in the complaint are accepted as true and all inferences are drawn in the plaintiffs favor,”), see Ahmed v, Cuccinelli, 792 F. App'x 908, 910 (2d Cir. 2020).
settlement agreement signed by Ms. Giuftre and Jeffrey Epstein actually meant. As wil appear fully below, the Court’s job at this juncture is simply to determine whether there aretwo or more reasonable interpretations of that document. If there are, the determination of the “right” or controlling interpretation aust await further proceedings. .
ceptas otherwise noted, the facts are drawn from Ms. Giuffre’scomplaint. bears repeating that its allegations are deemed true for purposes of this motion, whatever a trier of fact
The Epstein Sex Trafficking Scheme. Plaintiff's allegations arise principally from a sex trafficking scheme orchestrated by the late sex offender J effrey Epstein, which by now has been publicized widely. According to Ms.
__.. Giuffre’s complaint, Epstein “sexually abused more than. 30 minor girls. . inthe United States and overseas” from between about 1999 and 2007.7 In-concert with paid employees and others — notably Ghislaine Maxwell, who recently was convicted in this district of sex trafficking in connection with the Epstein events’ — Epstein and others lured vulnerable young girls into a scheme of abuse for Epstein’s own sexual gratification and for that of some of his powerful and wealthy friends.*
Complaint (Dkt. 1] (hereinafter “Compl.”) 44 (citing Opinion and Order, Dkt. 435 at 1-2, Doe v. United States, No. 08-cv-80736 (KAM) (S.D. Fla. Feb. 21, 2019}). United States v. Maxwell, No. 20-cr-0330 CAIN). Compl. { 5.
Epstein relied on Maxwell and others to identify and target vulnerable young girls in numerous cttings, including “schools, spas, trailer parks, and the street.”* Epstein’s “recruiters” Iured these girls into his orbit with the promise of what appeared to be legitimate masseuse positions. Once manipulated into returning to one of Epstein’s residences, however, the girls were groomed for Sbuse by Epstein and others through displays of wealth, power, and sexual imagery® Once initial sexual abuse had occurred, Epstein and Maxwell further manipulated the victims with a combination of promises, threats, and surveillance.’ At its height, Epstein’s sexual abuse scheme, managed principally by Maxwell, was transcontinental. Using his private jet, Epstein trafficked dozens of minors for sexual abuse at his New. York City mansion, his New Mexico ranch, his private island in the U.S. Virgin Islands, his Palm Beach, Florida, estate, and elsewhere. In 2008, he pleaded guilty in Florida to procuring a minor for prostitution."
Defendant's Relationship with Epstein and Maxwell
Again according to Ms. Giufite’s complaint, the defendant first met Epstein in 1999 through the former's “close friend,” Ghislaine Maxwell.? Over the next several years, the defendant traveled with Epstein and Maxwell on Epstein’s private plane and was a guest at Epstein’s numerous
Td. 49. Td. 9] 20-21. Id. 922. .
Id. 449, Id. (30.
. ‘homes, including the private island inthe US Virgin Islands, Little StJ ames, and properties in Palm Beach and New Vork City.
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uspcspny——~*@~d UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED || Toros ese ester eee eee cere sees esos Xk DOC Ho
Plaintiff, :
-against- 21-cv-6702 (LAK)
PRINCE ANDREW, Duke of York, in his personal capacity, also known as Andrew Albert Christian Edward, Defendant. Seem em eee eee eee ee ee ee ee ee ee HK
OPINION
Appearances: David Boies Sigrid McCawley □ Andrew Villacastin Erika Nyborg-Burch Sabina Mariella BOIES SCHILLER FLEXNER LLP Attorneys for Plaintiff Andrew B. Brettler □ Melissa Y. Lemer LAVELY & SINGER P.C, Attorneys for Defendant
Table of Contents
Facts eee tener cere eer teeter □ ~The Epstein Sex Trafficking Scheme □□ 0.0.0... □□ cee cece cece □□□ Defendant’s Relationship with Epstein and Maxwell... 2.0.00... cece eee eee eee 3d Epstein Recruits Plaintiff... 0.0... ce cece □□□ eee □□ Defendant’s Alleged Sexual Abuse ....... 0... 0c cece cee eee eee eee teed The Florida State Prosecution and the Federal Non-Prosecution Agreement...........6 Ms. Giuffre’s Florida Suit Against Epstein 6.0... eee tee □□ The Federal Criminal Case Against Epstein... 0.00... cee □□ The 2009 Agreement... 0... cece cette tee teen teen ees LO 6 ke eee eee eee teeta eee LL I. Dismissal on the Basis of the 2009 Agreement Is Not Justified on this Motion A, Legal Principles..... 00.0... cece eee eee eee ee AL 1, Materials Properly Considered... 0.0.0.0... cc eee ee ee ee Ad 2, Governing Law... 0... cette □□ AQ B. Analysis of the 2009 Agreement... 2.00020. ce eee ee □□ 1. Whether the Defendant Is Among the Purportedly Released Persons 2. Whether Defendant is Entitled to Enforce the Release as a Third Party Beneficiary of the 2009 Agreement...................22 a. Relevant Provisions of the Agreement...............23 b. Defendant’s Cases Are Inapposite □□□□□□□□□□□□□□□□□□□□□ c. The Dershowitz Argument □□□□□□□□□□□□□□□□□□□□□□□□□□□ Il. The Complaint States Legally Sufficient Claims ..... 0.0.0.0. cece eee eee SL A. Legal Principles. .....0.0. 0.0.0 ccc cece eee reece □□ B. Analysis... eect eter tenner nett □□ 1. The Complaint Is Legally Sufficient.......................32 2, Defendant’s Contention that the Plaintiff Was Obliged to Plead Specific Facts Demonstrating Violation of the New York Penal Law Is Incorrect □□ 0.0 ccc ce eee eee ene es □□ 3. Plaintiff's TED and Battery Claims Are Not Duplicative ......35 fil. The Attack on the Constitutionality of the New York Child Victims Act Is Without Mefit 0. eee teen teen ee tee teen □□ IV. Defendant Is Not Entitled to a More Definite Statement. He Will Get the Detail He Seeks During Discovery ..... 0.00.0. ccc eee eee eee □□ Conclusion 2.0... ec eee eee eee eee eet ee eee ee □□
LEWISALKAPLAN, Disrictudge
Virginia Roberts Giuffie brings this action against defendant Prince Andrew,
_ Duke of York, for battery and intentional infliction of emotional distress. In short, she alleges that the late J effrey Epstein and others trafficked her to Prince Andrew who took advantage of the situation by sexually abusing her when she was under the age of eighteen,
Defendant denies Ms. Giuffre’s allegations and attacks her credibility and motives, He asserts that she was complicit in Epstein’s unlawful activities. But this is a motion to dismiss Ms. Giuffre’s complaint as legally insufficient — not to determine the truth or falsity of charges in
hercomplaint. And defendant relies mainly, although notexclusively, on a2009 agreement between Ms. Giuffre and Epstein that settled a different lawsuit, between Giuftre and Epstein, that defendant now argues released him from any liability to Ms. Giuffre. The fact that defendant has brought the matter before the Court on a motion ta dismiss the complaint as legally insufficient is of central importance, As is well known to lawyers
perhaps not known to the lay public, the defendant - by making this motion — placed upon the Court the unyielding duty to assume — for the purposes of this motion only — the truth of all of plaintiff's allegations and to draw in plaintiff's favor all inferences that reasonably may be drawn from those allegations.’ In consequence, the law prohibits the Court from considering at this stage of the proceedings defendant's efforts to cast doubt on the truth of Ms. Giuffre’s allegations, even though his efforts would be permissible at a trial. In a similar vein and for similar reasons, it is not open to the Court now to decide, as a matter of fact, just what the parties to the release in the 2009
E.g, Littlejohn v. City of New. York, 795 F.3d 297, 306 (2d Cir, 2015) (“On a motion to dismiss, ail factual allegations in the complaint are accepted as true and all inferences are drawn in the plaintiffs favor,”), see Ahmed v, Cuccinelli, 792 F. App'x 908, 910 (2d Cir. 2020).
settlement agreement signed by Ms. Giuftre and Jeffrey Epstein actually meant. As wil appear fully below, the Court’s job at this juncture is simply to determine whether there aretwo or more reasonable interpretations of that document. If there are, the determination of the “right” or controlling interpretation aust await further proceedings. .
ceptas otherwise noted, the facts are drawn from Ms. Giuffre’scomplaint. bears repeating that its allegations are deemed true for purposes of this motion, whatever a trier of fact
The Epstein Sex Trafficking Scheme. Plaintiff's allegations arise principally from a sex trafficking scheme orchestrated by the late sex offender J effrey Epstein, which by now has been publicized widely. According to Ms.
__.. Giuffre’s complaint, Epstein “sexually abused more than. 30 minor girls. . inthe United States and overseas” from between about 1999 and 2007.7 In-concert with paid employees and others — notably Ghislaine Maxwell, who recently was convicted in this district of sex trafficking in connection with the Epstein events’ — Epstein and others lured vulnerable young girls into a scheme of abuse for Epstein’s own sexual gratification and for that of some of his powerful and wealthy friends.*
Complaint (Dkt. 1] (hereinafter “Compl.”) 44 (citing Opinion and Order, Dkt. 435 at 1-2, Doe v. United States, No. 08-cv-80736 (KAM) (S.D. Fla. Feb. 21, 2019}). United States v. Maxwell, No. 20-cr-0330 CAIN). Compl. { 5.
Epstein relied on Maxwell and others to identify and target vulnerable young girls in numerous cttings, including “schools, spas, trailer parks, and the street.”* Epstein’s “recruiters” Iured these girls into his orbit with the promise of what appeared to be legitimate masseuse positions. Once manipulated into returning to one of Epstein’s residences, however, the girls were groomed for Sbuse by Epstein and others through displays of wealth, power, and sexual imagery® Once initial sexual abuse had occurred, Epstein and Maxwell further manipulated the victims with a combination of promises, threats, and surveillance.’ At its height, Epstein’s sexual abuse scheme, managed principally by Maxwell, was transcontinental. Using his private jet, Epstein trafficked dozens of minors for sexual abuse at his New. York City mansion, his New Mexico ranch, his private island in the U.S. Virgin Islands, his Palm Beach, Florida, estate, and elsewhere. In 2008, he pleaded guilty in Florida to procuring a minor for prostitution."
Defendant's Relationship with Epstein and Maxwell
Again according to Ms. Giufite’s complaint, the defendant first met Epstein in 1999 through the former's “close friend,” Ghislaine Maxwell.? Over the next several years, the defendant traveled with Epstein and Maxwell on Epstein’s private plane and was a guest at Epstein’s numerous
Td. 49. Td. 9] 20-21. Id. 922. .
Id. 449, Id. (30.
. ‘homes, including the private island inthe US Virgin Islands, Little StJ ames, and properties in Palm Beach and New Vork City. Epstein and Maxwell were guests at the defendant's forth birthday
party in 2000 as well as at a birthday patty that the defendant threw for Maxwell in Sandringham, United Kingdom, in the same year
006, one month after Florida state prosecutors charged Epstein with procuringa ~Shinor for prostitution, the defendant invited Epstein to the eighteenth birthday party of one of daughters. As recently as 2010, and therefore after Epstein had done jail time in
connection with the 2006 Florida charges and registered as a sex offender, the defendant was photographed with Eptin and stayed at ptin’s New York yma
Epstein Recruits Plaintiff Ms. Givffre’s complaint continues: Maxwell réeruited Ms. Giuffre into Epstein’s SEX uafficking activities in 2000, when
Ms. Giuffre was sixteen years old and employed at the Mar-A-Lago Club in Palm Beach." □□□□ other minor girls whom Epstein and Maxwell targeted, plaintiff initially was recruited to “provide massages, and thereafter to engage in a variety of sexual acts, for Epstein.” From 2000 through 2002, plaintiff traveled frequently with Epstein, both within the United States and intemationally,.on his private plane. In addition to being “on call for Epstein for sexual purposes,” plaintiff on other
1s Id. 450. id. 992. 24. Id. 45.
□ occasions was “lent out to other powerful-men,”” including the defendant.
Defendant's Alleged Sexual Abuse The complaint alleges, and the Court for present purposes is obliged to accept, that the defendant sexually abused Ms. Giufiite when she was under the age of eighteen years old. Onone occasion, defendant allegedly forced plaintiff to have sex-with him against her will at Maxwell’s home in London. Ms. Giutfre’s complaint includes a reproduction of a now widely published
photograph of Ms. Giuffre, Prince Andrew, and Maxwell at Maxwell’s home, which plaintiff says taken prior to that event." On another occasion, defendant allegedly abused Ms. Giuffre during a visit to Epstein’s private island, Little St, James.
Ms. Giuffre alleges also that defendant abused her at Epstein’s mansion on the Upper East Side of Manhattan, which lies within this judicial district. During that particular encounter, Maxwell forced “[pJlaintiff, a child, and another victim to sit-on Prince Andrew’s lap as Pririce
Andrew touched ber.” During this visit to New York, according to the complaint, the defendant forced Ms, Giuffre to engage in sex acts against her will and was aware both of her age and that she
was a coetced sex-trafficking victim." In each of these encounters, plaintiff alleges, Epstein, Maxwell, and the defendant compelled her to engage in sexual acts by express or implied threat. In consequence, plaintiff feared
I3 td. 14
13 Td. 939. 16 Id. 41-48.
death or physical injury to herself or another, among other repercussions, if she disobeyed.” ~~ Giufize asserts that the defendant's actions caused and continue to cause her
significant emotional! and psychological distress and harm.
Florida State Prosecution and the Federal Non-Prosecution Agreement =
Atthis point, itis helpful and appropriate to refer to facts not alleged in the complaint in this case but of which the Court takes judicial notice. ig □
In July 2006, a Florida state grand jury indicted Epstein in a state court on a single count of felony solicitation of prostitittion (the “Florida State lidictment”). As. will appear, that charge remained pending until mid-2008.
As previously noted, defendant’s motion in this case relies heavily on the 2009 agreement between Epstein and Ms. Giuftre, which already is before the Court as a matter of judicial notice (the “2009. Agreement”).”” The'2009 Agreement contains the following paragraph:
17 1.441. ig The Court takes judicial notice only to the extent of the facts set forth in this section of this opinion and, in the case of documents, for the existence or contents of the documents, but not for the truth of assertions the documents contain, See /n re SKAT Tax Refund Scheme Litig., No. 18-CV-05053-(LAK), 2020 WL 7496272, at #3 (S.D,N_Y. Dec. 21, 2020). i9 Indictment, State v. Epstein, No. 06-9454CF (FL Cir. Ct. July 19, 2006), reprinted in U.S. Dep’t of Just., Off. of Pro. Resp., Report — Investigation into the U.S. Attorney's Office for the Southern District of Florida’s Resolution of Its 2006-2008 Federal Criminat Investigation of Jeffrey Epstein and Its Interactions with Victims during the Investigation, Ex, 1-(Nov. 2020). The OPR Report contains a great deal of information about how the NPA came to pass. But the Court does not take judicial notice of its statements or consider it in deciding this motion. 20 Dkt. 57 (taking judictal notice of Dkt, 32, Ex. A).
“First and Second Parties” further stipulate and agree that this Settlement Agreement > _ is pursuantto and is in fulfillment of Jeffrey Epstein’s obligations to Virginia Roberts (Giuffre] . .. pursuant to and in conformity with the Non-Prosecution Agreement, its _ Addendum, and its Affirmation ... between Jeffrey Epstein and the United States Attorney for the Southern District of Florida.” Thus, the terms of the non-prosecution agreement (the “NPA”) may shed light on the meaning of the “~"“n069" Agreement, ‘The Court therefore takes judicial notice of the NPA, its addendum, □□□ affirmation.” present purposes, the following terms of the NPA are of possible interest here: 1, Epstein agreed to plead guilty to the Florida State Indictment and to a state. Information charging him with solicitation of minors to engage in prostitution. □ 2. The U.S. Attormey’s office agreed to provide Epstein’s attorneys “with a list of individuals whom it hald] identified as victims, as defined in 18 U.S.C. § 2255” and, “in consultation with and subject to the good faith approval of Epstein’s counsel, [would] select an attorney representative for these persons, who [would] be paid for by Epstein.” Epstein’s lawyers
21 The agreement defines the term “First Parties” to mean “Virginia Roberts Enfk/a Ginffre} and her agent(s), attorney(s}, predecessor(s), successor(s), heir(s), administrator(s), and/or assign(s).” It defines the term “Second Parties” to mean “Jeffrey Epstein and his ageni(s), attorney(s), predecessor(s), successor(s), heir(s), administrator(s), assign(s) and/or employees(s).” For ease of expression, unless otherwise indicated or thé context otherwise requires, the balance of this opinion uses the term “Ms. Giuffre” to refer collectively to Ms. Giuffre and the others included in the defined term “First Parties.” Similarly, it uses the term “Epstein” to refer collectively to Epstein and the others included in the defined term “Second Parties.” Dkt, 32,Ex.Aat2. . See Non-Prosecution Agreement [hereinafter “NPA” Dkt. 361-62, Doe v. United States, No. 08-cv-80736 (KAM) (S.D. Fla. Feb. 10, 2016).
could “contact the identified individuals through that representative.” stein agreed that, if one or more of the individuals whom the government =
had identified as victims elected to sue Epstein under 18 U.S.C. § 2255, Epstein would not contest jurisdiction over him in the Florida federal court and he would waive his tight to contest his.liability, addition, he would “waivel ] his right to contest damages up to an amount as agreed to between □□□ identified individual and Epstein, so long as the identified individual elect[ed] to proceed exclusively “under 18 U.S.C. § 2255, and agree[d] to waive any other claim for damages, whether pursuant to
state, federal, or common law.” Epstein’s waivers, however, would not apply to anyone who had not been identified by the government as a victim or, having been so identified, did not proceed □ exclusively under 18 ULS.C, § 2255, 4, The U.S. Attorney’s office agreed that it would not prosecute Epstein nor “institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to” four specifically identified persons if Epstein pleaded guilty to the P lorida charges and
___otherwise discharged his obligations under the NPA The NPA bears signatures dated variously in late September and tn October 2007. Ms. Giuffre’s complaint alleges that Epstein pled guilty to the Florida information (and presumably the indictment) in 2008.77
24 id. até, % ld. , 26 id. at 5. Compl. 4 49.
Ms-Giuffre’s Florida Suit Against Epstein °°
In May 2009, while Epstein was incarcerated in Palm Beach County, Florida, as a result of his guilty plea to the Florida state charges, Ms. Giuffre sued Epstein in the United States Distt Court forthe Southem District of Flérida (the “Florida Case”) imder 18 U.S.C. § 2255 asan. ~~ glleged victim of Epstein’ s alleged federal sex trafficking, sexual exploitation, and child pornography offenses.” Her cotiplaint asserted that Epstein and Epstein’s “adult male peers, including royalty, politicians, academicians, businessmen, and/or other professional and personal acquaintances,” had sexually exploited her. . Ms. Giuffre and Epstein entered into the 2009 Agreement, entitled Settlement Agreement and General Release, pursuant to which Giutfre voluntarily dismissed her action against Epstein in exchange for $500,000. The defendant argues that Ms. Giuffre’s claims against him are barred by the terms of the 2009 Agreement.
The Federal Criminal Case Against Epstein On July 2, 2019, a grand jury in this district indicted Epstein for an alleged sex
25 See Complaint, Jane Doe No. 102 v. Epstein, No. 09-cy-80656 (KAM) (S.D, Fla. May |, 2009) (hereinafter “Florida Compl.”) . fd. 421. 30 See Final Order of Dismissal, Dkt. 65, Jane Doe No. 102, No. 09-¢v-80656 (KAM) (S.D. Fla. Dec. 8, 2009),
10 trafficking conspiracy and the substantive crime of sex trafficking in violation. of i8U. S.C. § 1591 3 aneated on Tuly 8, 2019. On Aligust 10, 2019, Epstein was fouriddead im his celarthe =
Metropolitan Correctional Center.”
□□□ Agmeement Se ee a
the 2009 Agreement is the crux of defendant’s motion. Itcontains sixanda fraction rages of substantive teat consistingrof nine individually labeled provisions. These are ait agreanient to dismiss the Florida Case (§ 1), a one and one-half page ‘provision captioned “gerieral release” that contains additional covenants beyond the releasing language (8 2), a payment section (8 3), a Confidentiality provision (§ 4), covenants dealing with maintaining Ms. Giuffre’s anonymity (§ 5), a “no contact” covenant (§ 6), 4 provision relating to governing law and enforcement of the agreement (§ 7), a clause concerning attomeys’ fees (§ 8), and a collection of misceilaneous provisions (§ 9). A number of these provisions bear importantly on the resolution of this motion and
are discussed in detail below so there is no need to quote or summarize them in great detail here. Suffice it to say by way of introduction that: * This motion raises two pivotal issues regarding the 2009 Agreement: * Whether the 2009 Agreement demonstrates that its releasing language in Section 2 unambiguously applies to this defendant and, if'so, . Whether the defendant ~ who is not a party to nor mentioned in the
43 See Indictment, Dkt. 2, United States v. Epstein, No. 19-CR-49) (RMB) (S.D.NLY. July 2, 2019). 32 Compl. 956.
agreement — is entitled to invoke it. . The 2009: Agreement is far from a model of clear and precise drafting. Both tes agree that Epstein and Ms. Giuffre agreed fo its language. Itmusthave =
meant something to them. But Ms. Giuffre and the defendant in this case disagree emphatically as to what it meant with respect to both issues.
Discussion Dismissal on the Basis of the 2009 Agreement Is Not Justified on this Motion — □
A. Legal Principles |, Materials Properly Considered
The defendant moves to dismiss pursuant to Rule 12(b)(6). As noted previously, the Court, in this posture, must accept as true all well pleaded factual allegations in the complaint and. draw “all reasonable inferences that can be drawn from [them] in the ight most favorable to the plaintiff." With limited exceptions, the motion must be decided solely on the basis of the allegations of the complaint without regard to any extraneous claims or materials. The 2009 Agreement neither appears in nor is referred to in the complaint. But the copy before the Court concededly is authentic. Its wording (as distinguished from its legal effect) is undisputed, and the Court consequently has taken judicial notice of it’ | Moreover,
33 Lynch y. City of New York, 952 F.3d 67, 75 (2d Cir. 2020) (citations and internal quotation marks omitted). 34 See, e.g, Alt. Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (ist Cir. 2001) (“Ordinarily, a court may not consider any decuments that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment. There is, however, a narrow exception for documents the authenticity of which are not disputed by the parties; for official public records, for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.”} (citations and internal quotation marks omitted) (emphasis added).
□ notwithstanding the general rule that an affirmative defense is not considered at this stage of the satin, eucl-Wefonse “may be raised by a pie-answor Mibtion (0 disiiss under Rule 12(6)(6)——
_ if the defense appears on the face of the complaint.” And while the defendant’s argument does not rest.on the face of the complaint, here that is distinction without a difference in light of the fact
the wording of the 2009 Agreement (again, as distinguished {Fin its legal effect) is accepted by Doth parties Accordingly, the Court considers defendant's argument.
2, Governing Law The 2009 Agteement provides that it “shall be governed by the laws of the State of Sorida.” ‘The partes agree. Accordingly, the Court applies Florida law tothe two pivotal questions
that bear on the defendant's release argument.
B. Analysis of the 2009 Agreement 1. . Whether the Defendant Is Among the Purportedly Released Persons
We begin by focusing on the first two pages of the 2009 Agreement, which contain Sections 1 and 2. Section | contains the agreement of plaintiff and Jeffrey Epstein to dismiss plaintiff's Florida Case upon receipt of a monetary payment.*® Section 2, which occupies one and one-half typewritten pages, contains, among other things, language by which “First Parties” (generally, Ms. Giuffre and some others) released “Second Parties” (generally, Epstein and some others) and
Pani v. Empire Blue Cross Blue Shield, 132 F.3d 67, 74 (4d Cir. 1998). 36 It is undisputed that “Jane Doe No. 102” referred to Ms. Giuffre and that her identity was not revealed in the complaint in the Florida Case.
13 “any other person or entity who could have been included as a potential defendant ...(*Other Potential Defendants’) from all, and all manner of [claims] that. said_First..0 pttas eyer Had. > or may have, against Jeffrey Epstein, or Other Potential ~~ Defendants ....” .
. The defendant insists that he was among the “Other Potential Defendants” □□□□ therefore was released by Ms. Giuffre from “all, and all manner of,” claims that she “ever had”
against him., Ms..Giuffre maintains with equal adamancy.that he was not among the “Other Potential = ____. Defendants” that the parties to the.2009 Agreement had in mind. The basic principles of Florida law that govern this aspect of the parties’ dispute are
clear. Unless contract language is “unambiguous and free of conflicting inferences,” ambiguity
o—nrust-be resolved as a question of fact237 In-other-words, unless the terms of-an. agreement leave. □□
no reasonable doubt about the intent of the contracting parties, the ambiguity must be resolved by the
trier of fact,® ordinarily atrial jury. The Court may not resolve any such ambiguity on a motion to dismiss the complaint. ne Whether a contract is ambiguous “is a question of law”””— specifically, whether the
goreement; in whole or by its terms’and. conditions, is “reasonably susceptible to-more than one □□
37 Soncoast Cmty. Church of Boca Raton, Inc. v. Travis Boaling Ctr. of Fla., Inc., 981 So. 2d 654, 655 (Fla. Dist. Ct. App. 2008) (quoting No. Star Beauty Salon, Ine. v. Artat, 821 So. 2d 356, 358 (Fla. Dist. Ct. App. 2002)). This principle is subject to an exception, sot relevant on this motion, that the court may resolve the ambiguity as a matter of law where that can be done by undisputed parol evidence of the parties” intent. Decoplage Condo. Ass'n, Ine. □ y. Deco Props. & Invs., Inc., 971 So, 24 860, 861 (Fla. Dist. Ct. App. 2007). 38 See Berkowitz v. Delaire Country Club, Ine., 126 So. 3d 1215, 1219 (Fla. Dist. Ct. App. 2012); Neumann y. Brigman, 475 So. 2d 1247, 1249 (Fla. Dist. Ct. App. 1985); see □□□□ Talbott v. First. Bank Fla., FSB, 59 So. 3d 243, 245 (Fla. Dist. Ct. App. 2011) (When a contract is ambiguous, an issue of fact is created that cannot be resolved by summary judgment.”). . 39 No. Star Beauty Salon, Inc., 821 So, 2d at 338.
14 interpretation’ That is so even where both sides insist that language is unambiguous but ascribe different meanings to ite
Inthis case, everyone agrees that the phrase “could have been included as a potential defendant (‘Other Potential Defendants’)” must:mean something. No doubt that isso. Nor is there “Sich doubt that better drafting probably could have éliminated any uncertainty as to the meaning, ~~
In fact, however, the meaning of the phrase is far from self evident for a number of reasons.
perhaps should begin with t the question of what was meaitit by “could have □□□□ included as a pofential defendant” — as opposed to “could have been included as a defendant.” One might suppose that whether one was, or could have been, included as adefendant
not included as a “potential” defendant — is clear enough, although even that seemingly simple supposition, as we will see, is not accurate in the context of this case. But the concept of inclusion “as a potential defendant” is even less capable of definition. If the quoted language from Section 2
of the 2009 Agreement — that is, the phrase “could have been inchided as a potential defendant” —
40 Lambert v, Berkley S. Condo. Ass'n, 680 So. 2d 588, 590 (Fla. Dist. Ct. App. 1996}; see Miller v. Kase, 789 So. 2d 1095, 1097-98 (Fla. Dist. Ct. App. 2001). Al Killearn Homes Ass'n, Inc. v. Visconti Fam, Ltd., 21 So. 3d 51, 53-54 (Fla. Dist. Ct. App. 2009). Az indeed, we might have begun with the fact that the 2009 Agreement defines “Other Potential Defendants” as “any other person or entity who could have been included as a potential defendant” without specifying in what. Defendant's brief sought to solve that problem by asserting that the 2009 Agreement “defines “Other Potential Defendants’ as ‘any other person or entity who could have been included as a potential defendant’ in Giuffre's lawsutt against Epstein” despite the fact that the italicized words do not appear in the 2009 Agreement. Def. Mem., Dkt. 31 at 13 (emphasis added). Plaintiff, however, takes the same view. See Pl. Mem., Dkt. 43, at 10 (*The 2009 Release, by its terms, encompassed only claims against Epstein and ‘Other Potential Defendants’ ‘who could have been inchided as a potential defendant® in the Florida Complaint.”). Accordingly, the Court accepts the patties’ agreed gloss on this point for purposes of this motion.
was intended.to mean someone who was not actually a deferidant when the 2009 Agreement was
"signed, but who might have been made a defendant previously if the plaintiffhad pameéd him of her ~~
as an actual defendant, then the word “potential” would be entirely superfluous. That is so because the language would mean éxactly the same thing with or without the word “potential,” Put another way, the phrase under consideration would mean exactly the same thing even ifone deleted the Word =
“potential” entirely.
basic rule of contractual construction that a contract shouldbe construed, □□
whenever possible, in a manner that gives meaning to every word and phrase. The presumption is that contracting parties do not include words or phrases for no purpose.** Nevertheless, the parties have briefed this matter as if the word “potential” were not in the agreement at-all. And as the Court
sees no other appropriate course, it will do so as well. It sees no way to construe it in a manner that would give non-redundant meaning to the word “potential.” So we come to the question of what was meant by the phrase “could have been included asa... defendant.” At one level, of course, literally anyone “could have been included .
4B See, e.g., Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Ass'n, 117 F.3d 1328, 1338 (11th Cir. 1997) (applying Florida law), Preinier Ins. Co, v, Adarits, 632 So. 2d 1054, 1057 (Fla. Dist. Ct. App. 1994); see generally 1] WILLISTON ON CONTRACTS § 32:5 (4th ed.) (“To the extent possible, and except to the extent that the parties manifest a contrary intent, by stating, for example, that recitals or headings are not to be considered or given effect in determining the meaning of their agreement, every word, phrase or term of a contract must be given effect.").
Fla. Inv. Grp. 100, LLC v. Lafont, 271 So. 31,5 (Fla. Dist. Ct. App. 2019) CEN]o word or part of an agreement is to be treated as a redundancy or sutplusage if any meaning, reasonable and consistent with other parts, can be given to it-”) (quoting Royal Am. Realty, Inc. v. Bank of Palm Beach & Tr. Co., 215 So. 2d 336, 338 (Fla, Dist. Ct. App. 1968)); see generally RESTATEMENT (SECOND) OF CONTRACTS § 203 (1981),
_. as a defendant. “If the plaintiff had wished to include someone else — anyone else — as a
~~ “defendant, she easily could Have done so. Someone can be included as a defendant in a lawsuit
simply by including that person’s name in the caption of acomplaint.** Nothing else is tequired. But neither party takes that position despite the fact it would be consistent with the literal terms of the “2009 Agreement. Rather, defendant argues that be “could have been included” ‘as a “potential” ~ ~
defendant” in the Florida Case because Ms. Giuffre made a general reference to “royalty” inher complaint, even though it did not name Prince Andrew as a defendant nor éven mention his □□
name. Plaintiff rejoins that Prince Andrew could not have been included as a defendant in the Florida Case because (1) he was not subject to personal jurisdiction there and, in any case, (2) the
claims that plaintiff brought against Epstein in the Florida Case were based solely on 18 U.S.C, § 2255,” which created a federal civil cause of action in favor of anyone who, while a minor, was injured in consequence of a violation of any of any of several federal criminal statutes.’* As to the
latter, she contends that Prince Andrew could not have been sued in the Florida Case under any of
4s The defendant so conceded at argument. See Transcript (hereinafter “Tr.”), Jan. 4, 2022, at 5. 46 See FED. R. Cty, P. 10(a). For a clear (though misguided) illustration of this point, see Craig v. Pope John Paul if, Civil Action No. 100824, 2010 WL 1994620, at *1 (D.D.C. May £8, 2010} (naming “Pope ‘John Paul fl in Heaven with God,’ Pope Benedict XVI, ‘the Holy Mother Roman Catholic Church,’ and many Cardinals and Archbishops and Bishops of the Roman Catholic Church” as defendants and seeking $3 trillion, $9 million in damages). 47 Florida Compl. § 32. 46 18 U.S.C. §§ 1589, 1590, 1591, 2241(c), 2242, 2243, 2251, 2251 A, 2252, 2252A, 2260, 2421, 2422, or 2423.
17 the Section 2255 predicate statutes because there was no basis for doing so. nw ape parties respéctive positions show that they agree that the release laiguagé—ie, the phrase “could have been included as a, . . defendant” — applies only if there is a nexus between
the person in question and the claim Ms. Giuffe made against Epstein in the Florida Case. They “disagree, however, as to the nature of the requisite nexus, ~~ 7 □□
The defendant argues that the nexus is supplied by plaintiff S complaint intheFlorida Case” It charged Jeffrey Epstein, to quote the defendant iii this casé, with “sex-trafficking □□□□ sexuai abuse.” It alleged that girls whom Epstein trafficked were abused by others, including unspecified “royalty.”*! That, defendant submits, is enough. From the plaintiff's standpoint, defendant’s position js too extreme. As noted, the
Florida complaint did not mention Prince Andrew. Moreover, Ms. Giuffre argues in substance that
one “could have been inchided as a... defendant” (1) only ifthat could have been done on the same
hasis as the claim in the Florida Case was made against Epstein — violation of one or more of the.
Section 2255 predicate criminal statutes — and even then (2) only if that person would have been
subject to the personal jurisdiction of the Florida court. Yet there is no basis for concluding that
defendant would have been subject to the personal jurisdiction of the Florida court.” Nothing in Ms.
49 As that complaint was filed in the Florida Case, the Court takes judicial notice of its words, not for the truth of the allegations, but for the fact that they were uttered on behalf of the plaintiff. 50 Dkt. 31, at 2. 5} Florida Compl. { 21. 52 Yn 2009, when the Florida Case was settled, the Florida long-arm statute in relevant part permitted the exercise of personal jurisdiction over a non-resident in circumstances such as those in issue here only if the claim arose from the commission of a tortious act within the
Giuffre’s Florida complaint indicates that the defendant violated any of the Section 225 5 predicates. ois its relerence to “royaliy” sufficient to remedy this absence. ‘The crux of the F lorida Case □□□
that Epstein harmed Ms. Giuffre by trafficking her for sex with himself and with others. Indeed,
defendant’s counsel made clear at oral argument his view that the complaint against Epstein was that
~ steln “trafffoked [Ms. Giutlre} to a ritiiber of individiils, forced her ito sex slavery; □□□□□□
forced [her] to have sex or be sexually abused. by mariy people, including members of ‘academia, “including businessmen and the category of royalty.” Yet there is no suggestion in the Florida Case
that this defendant was himself engaged in sex trafficking. In considering whether the only reasonable interpretation of the phrase “couid have □
been included asa... defendant” is the one advanced by the defendant —i.e., that it would inherently be unreasonable to construe that phrase as referring only to persons who could have been sued in the
Florida Case on essentially the same theory as was Epstein and over whom the Florida court could
have exercised personal jurisdiction — it is helpful also to consider the context in which the 2009
smeemeneanes ae cee mes corte ne . sae eee eeeeereeeie oe veuesusonsonwee ee ee eee □□□ State of Florida, See FL. StaY. ANN. § 48.193(1)(b) (2007); Beta Drywall Acquisition, LCC y. Mintz & Fraade, P.C.,9 So. 3d 651, 653 (Fla. Dist. CL App. 2009) (discussing then-FL. STAT. ANN. § 48.193(1)(b)). But nothing in the Florida complaint (nor any of the other materials properly: before this Court) alleges that Ms. Giuffre had a claim against this defendant arising out of the commission by him of any tortious act in F lorida. Defendants contention that the Florida court nevertheless could have exercised personal jurisdiction on aco-conspirator theory, Dkt, 52 at 4-6, overlooks the fact that the Florida complaint, which was limited to asserting specific violations by Epstein of certain federal criminal statutes, does not allege that Prince Andrew conspired with Epstein to commit any of them. The general reference to conspiracy “with others, incliding assistants and/or [Epstein’s] driver(s) and/or pilot(s), and his socialite friend/partner, Ghislaine Maxwell, to further [Epstein’s] acts,” Florida Compl. 4 16, would not have been a sufficient basis for the exercise of personal jurisdiction over Prince Andrew. See United Techs. Corp. v. Mazer, 586 F.3d 1260, 1282 (ith Cir. 2009) ([A]ny conspiracy-based exercise of personal jurisdiction mast be founded on conduct committed in Florida by others that can be attributed-to [defendant] as a co-conspirator.”). 53 Tr., Jan. 4, 2022, at 3:20-24.
19 Agreement was signed to the extent context can be ascertained on the present record. ae we do Hot know what if anything, went through the parties minds wit respect to the specific terms of the 2009 Agreement.. Hypothetically, we can imagine what someone
in Epstein’s position might have thought at the time this agreement to settle the Florida Case was ade, At least Some of ‘the ‘Boals ofa such person presumably would havé beeit'to end the Florida
Case, to-gain ag much protection for himself as he could get against involvement in similar litigation
Fn the Future, and to do so for aq acceptable price: In other Words, a possible concern could have been that (1) Ms. Giuffte, having settled with Epstein, would siie someone else (2) who, in turn, might make a claim against Epstein (a “Claim Ovet”) based ona contention that Epstein should bear or, at
least contribute to, any liability that person might be found to have to Ms. Giuflire. Obtaining a
release from Ms. Giuffre of claims against such a person therefore could eliminate the possibility of
a Claim Over against Epstein. But the objectives of one in Epstein’s position were unlikely to have
been shared: by the other contracting party, an individual in Ms. Giuffre’s position. And that matters.
The goals of one in Ms. Giuffre’s position hypothetically could have inchided getting
as much. money as she could for settling the case and keeping as much of her freedom to go after
other alleged wrongdoers as she could keep while still getting an acceptable sum of money. Limiting the release language to persons who could have been sued in a particular court on a particular type of claim could secure that freedom to a substantial degree. The logic of the situation thus suggests that the parties to the 2009 Agreement had
competing goals, and the muddled release language that they agreed upon suggests that they may
have arrived at something of a middle ground: a release extending not as broadly as Epstein ideally
may have wanted and somewhat more broadly than would have been a “best case” outcome for Ms.
Giuffre. Moreover, it would not be unreas onable to recognize, among other considerations, that the
20 settlement amount may have been affected by the views of both parties conceming the terms of the ""—““telease. Epstein perhaps would not have been willing to pay a price demanded for the broadest”
possible release of other persons or, short of that, clearer language concerning the nexus between
“Other Potential Defendants” and claims in the Florida Case. ~ aee additional consideratioas supporting” the reasonableness of plaintifPs
interpretation of the phrase “could have been included as... . defendant . For one thing, the —~""Fforida Casé was brought in a federal court. he sole alléged basis of federal juitisdiction was Section” ~
9255 of Title 18 ofthe United States Code, which confers subject matter jurisdiction on federal courts
only with respect to claims based on alleged violations of certain federal criminal statutes. The complaint in the Florida Case specifically alleged that Epstein had committed a number of such
violations. But it nowhere alleges that this defendant committed any.’ It not clear that a claim in □
the Florida Case against this defendant would have been within the subject matter jutisdiction of the
Florida court, even on a co-conspirator” or supplemental jurisdiction theory.* It is questionable
Neither does her present complaint, Defendant argues in conclusory fashion that “Giuffre could have sued him directly for violating section 2423” in the Florida Case. Dkt 52 at 5. But on their face, plaintiff's allegations, taken as true, would not establish the “transports” element of § 2423(a), the “purpose of travel” element of § 2423(b), the naturalization element of § 2423(c), or the “commercial advantage” element of § 2423(4). Nor would her allegations, taken as true, have established an unlawful agreement to accomplish one or more of the. predicate offenses, nor action intended to facilitate those violations that plaintiff attributed to Epstein in the Florida Case. The Court would need to draw numerous. inferences in the defendant’s favor to adopt his view that plaintiff's claims should. be dismissed on the theory that she would have had viable § 2255 claims against Prince Andrew in the Florida Case, whether on a direct or vicarious liability theory. 35 Prince Andrew’s assertion, first made in his reply memorandum, that Ms, Giufire’s complaint in this action “alleged that Prince Andrew aided and abetted Epstein’s federal sex-trafficking crimes and was Epstein’s co-conspirator in the alleged criminal enterprise,” a proposition for which he cites et ght specific paragraphs of the complaint, Dkt. 52, at 5, cannot be taken at anything approaching face value.
also whether the Florida court could have exercised personal jurisdiction over this defendant, even
~—~ascuming that subjéct matter jurisdiction existed OT
In the last analysis, it is not now the Court’s function to decide which party’s view of
ee -The first paragraph cited □□ 24) does not even mention Prince Andrew, Thesecond □ □ through fifth 30-31, 34-35) allege no more than that Prince Andrew has said he we = first met Epstein in-1 through Maxwell, thatthe defendant has been photographed □□□ with Maxwell at social events, that defendant has flown with Epstein and Maxwell Bpsteiin’s plane to various locations, and that defendant on occasion has visited □□ Epstein homes. While the existence of arelationship among putative co-conspirators almost always is admissible in a conspiracy case, italone does not remotely approach a sufficient allegation of a criminal conspiracy. The last three paragraphs the defendant cites 43-45) allege that the defendant, at ms om ae vitation of Epstein and Maxwell, engaged in sexual acts with plaintiff without her consent, knowing her age, and knowing that she was a sex-trafficking victim being forced to engage in those acts. If the allegations of the last three paragraphs are true, as they must be regarded fot purposes of this motion, they actions would have been reprehensible. No doubt a defendant prosecutor or plaintiff might argue that the events alleged could be considered as evidence of an unlawful agreement. But they are consistent as well with the absence of a conspiracy or of any intention to aid and abet the commission of predicate crimes by Epstein and/or Maxwell. As the complaint on this motion must be construed in a light most favorable to the plaintiff, these allegations □□□ insufficient to carry the day for the defendant on his- theory. Attrial, should thé case proceed mem . —- that far;he perhaps could have an opportunity to prove that Prince Andrew could have been □□□ sued successfully in Florida.ori a § 2255 claim, in which case these claims might be pertifient to an assertion of the release defense in this case. But this motion is not the time for that, 36 Pursuant to 28 U.S.C. § 1367(a), the district court “shall have supplemental Jurisdiction over all of the claims that aré so related to claims in the action within such original jurisdiction that they form part of the same case or controversy... . Such supplemental jurisdiction shall include claims that ‘include joinder or intervention of additional parties.” 28 U.S.C. § 1367{a). However, 28 U.S.C. § 1367(c) provides that district courts may decline to exercise supplemental jurisdiction over a claim under Section 1367(a) if “(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” Id.§ 1367(c). Given district courts’ broad discretion to decline supplemental jurisdiction under 1367(c), the Court can do little more than speculate about whether any state law tort claims predicated on Section 1367 would have been within the Florida court’s subject matter jurisdiction. See, e.g., Utopia Provider Sys., Inc. v. Pro-Med Clinical Sys., L.L.C., 596 F.3d 1313, 13281 ith Cir. 2010) (upholding sve sponie dismissal of state law claims “[g]iven the deference we afford a district court's decision whether to exercise supplemental jurisdiction”).
22 the meaning of the term “could have been included as a potential defendant” in the Florida Case □
reflects the partis intent. ICis enough conelide that the ineaning of this pivotal phrase in the contract is not by any means “unambiguous and free of conflicting inferences.” The parties have articulated at least two reasonable interpretations of the critical language. The agreement therefore is ambiguous. Accordingly, the determination of the meaning’ of the reléase language in ~ ~~ 9009 Agreement must awaitfurther proceedings. =
——————~" wise the foregoing is dispositive of defendant’s motion to dismiss onthe basisofthe
2009 Agreement, the Court turns now to his other arguments for dismissal, which rest on independent grounds . .
2. Whether Defendant is Entitled to Enforce the Release as a Third Party Beneficiary of the 2009 Agreement As very general matter, the only persons who can enforce a provision of a contract are
parties to that contract — the people who agreed to it. The defendant was nota party to the Agreement
between’ Epstein and Ms. Giuffre. Accordingly, even if the releasing language in the “2009 □
Agreement included the defendant among ihe persons Ms. Giufire released, the question would
remain whether the defendant may take advantage of that release under Florida law. That depends
on whether Epstein and Ms. Giuffre intended that he be able to do so — in other words, whether he
was what the law calls a third-party beneficiary of the contract. Under Florida law, it is “[e]ssential to the right of a third party beneficiary . . . to
[enforce a contract to which he or she is not a party that] the clear intent and purpose of the contract
oo Soncoast Cmiy. Church of Boca Raton, Inc., 981 So, 2d at 655 (citations.omitted).
[was] to directly and substantially benefit the third party.”> A “merely incidental or consequential
~“third-party beneficiary of a contract may hot suc for its enforcement.” a
a. Relevant Provisions of the Agreement □
-- "1 this case, there aré substantial indications on the face of the 2009 Agreement itself
that Epstein and Ms. Giuffre did not clearly intend for the releasing language with respect to“Other
Defendants” in the Florida Case, “whatever that was imended-to mean, to “directly;*—— “primarily,” or “substantially” benefit those persons.
Aganinitial matter, one reasonably might conclude (although that may not be the only
permissible inference), for reasons already stated, that Epstein’s purpose in seeking to obtain a
release of persons other than Epstein and the other “Second Parties” was primarily and directly to
protect himself from becoming embroiled in future litigation. That goal — even assuming that the
requirements of “clear” intention to benefit the persons released “primarily” and “substantially” were
satisfied, which is doubtful — would have been served only if persons arguably within the releasing
language were aware of it and, iflater sued by Ms, Giuffre. successfully could have asserted the 2009
Agreement release against her. Butthe 2009 Agreement contains provisions that appear to have been
intended to make sure that such persons would not be aware of the release and, even if aware of it,
were prohibited from or at least severely limited in their ability to use it defensively.
58 Thompson v. Com. Union fns, Co. of New York, 250 So. 2d 259, 262 (Fla. 1971} (emphasis added); accord, é.g., Reconco v. Integon Nat’l Ins, Co., 312 So, 34 914, 917 (Fla. Dist. Ct. App. 2021), review denied, No. $C21-576, 2021 WL 2588930-(Fla. June 24, 2021); Legare y. Music & Worth Const., Inc., 486 So. 2d 1359, 1362 (Fla. Dist. Ct. App. 1986) (holding that the contract must “elearly establish the parties’ intent to create a right primarily and directly benefitting the third party”) (emphasis added). 59 MecKinney-Green, Ine. v. Davis, 606 So. 20 393, 396 (Fla. Dist. Ct. App.. 1992).
24 First, Section 4, the confidentiality clause, provides: in. pertinent part, that
he Dartieg shall not provide any copy, in whole or in part, or in any form, of this” □□ Settlement Agreement to any third party, except to the extent required by law or rule or in response to a validly issued subpoena froma governmental or regulatory agency. Moreover, neither this Settlement Agreement, nor any copy hereof, nor the terms hereof shall be used or disclosed in any court, arbitration, or other legal proceedings, except to enforce the provisions of this Settlement Agreement-7) both Epstein and Ms. Giuffre were prohibited from. providing all or part of the 2009 Agreement □ □□□
even to anyone who might have been among the persons possibly included within its releasing language. _ The second is a portion of Section 2, the release provision, that provides:
ees es “Additionally, as a material consideration-in settling; First Parties [Ms. Giuffre] and □□□ Second Parties [Epstein] agree that the ferms of this. Settlement Agreement are not intended lo be used by any other person nor be admissible in any proceeding or □□□□ against or involving Jeffrey Epstein, either civil or criminal.”*! Taken together, these provisions at least reasonably could be interpreted as meaning that Epstein and Ms. Giuftre agreed that (1) neither would disclose the 2009 Agreement in whole or
in part to anyone except upon compulsion of legal process, and (2) nio one was intended to use the terms of the 2009 Agreement, which of course included the release language upon which the defendant relics, in any proceeding or case “involving Jefirey Epstein.”
60 Dkt. 32, Ex. A at 3 (emphasis added). ol Id. at 2 (emphasis added). These limitations appear to attach even where the Agreement contemplates that Epstein could reveal plaintiff's identity in connection with “ongoing or future litigation-related or claim-related matters” Jd. at 4, Section 4 anticipates that subpoenas and other legal process could restilt in the agreements disclosure in cases like this one, and it limits how it may be “used” even-if so discovered. Whether or not disclosure owed in whole of in part to Epstein’s ability to disclose plaintiff's identity under the conditions provided in Section 5 would be iramaterial. 62 At oral argument, defendant claimed that § 7 of the agreement supports his position that he is entitled to enforce the release. In relevant part, it provides: “Should the federal court not
25 b, Defendant’s Cases Are Inapposite .
— =~.“ efendant nevertheless contends that ‘Horida cotirts have “long recognized that an”
intended third-party beneficiary-of a broad release... has standing to enforce that release, even
when the release does not identify that third party by name.’ That is at least an unduly broad
The first case he cites, Olsen v. O’Connell;™ held that purchasers of real property were
beneficiaries of a contract between sellers of that property and holders ofan existing
judgment lien on it, There, however, the court indicated that the agreement existed only as a
oe retain jurisdiction, the Parties (and any third party) agree that the” state courts in Palm Beach County “shall have exclusive jurisdiction over the subjéct maiter arid shall have personal jurisdiction over the Parties (and third parties).” Id. at 5 (emphasis added); see Tr,, Jan. 4, 2022, at 39-42. But this is unpersuasive. As an initial matter, the parties to the agreement had no authority to bind third parties. To be sure, the Court recognizes that defendant’s point is different, viz. that the references to “third parties” § 7 evidences an intention to benefit others. Perhaps. But it does not inevitably follow that benefitting Prince Andrew or others in comparable positions was a purpose of the release, Complicating defendant’s argument even further is the way in which the terms “onforcoment” and “third party” are used elsewhere in the agreement. Section 4— the only other section to use the term “third party” — purports to create tights and obligations with respect to disclosure of the “amount of [the] settlement.” The reciprocal confidentiality covenant provides: “Any third party who ig advised of the settlement amount must sign a document acknowledging that such third party is aware of this confidentiality provision and is bound by it, including the provisions contained in the Settlement Agreement relating to the enforcement of this confidentiality provision.” Dkt. 32, Ex, A at 3. It would be eminently reasonable to interpret § 7's references to “third parties” and “enforcement” as referring specifically § 4’s reciprocal confidentiality provision, which, in addition to employing those two terms together, is the only other place in the Agreement where either term appears at all. What is more, § 7 specifies that if a breach of confidentiality were to occur, only “the aggrieved First or Second Parties . . . may seek a remedy with the Court’-no third party rights attach. Jd. 63 Dkt. 31, at 15.
64 466 So. 2d 352 (Fla. Dist. Ct. App. 1985).
26 necessary part of the impending sale of the property to the third-party buyers. The sellers had sought
agreement only because they “they “gould not consummate the sale Of the property Without” ~~~
obtaining a release of the judgment lien.” They made the deal with the judgment creditor “in order
to-affect [sic] the sale to” the buyers.” The buyers — the unnamed third parties — were so integral
the deal between the Sellers and the judgment creditor that the court hypothesized that they were
“likely even actual parties to the agreement as evidenced by their execution of the note and mortgage
payable [sellers] and theit closing of the salé in reliance upon the agreement.” This casé bears”
no resemblance to Olsen. Defendant points next to Hester v. Gatlin’ and Dean v. Bennett M. Lifter, Inc., both
of which involved auto accidents with multiple potential tortfeasors. In Hester, the owner of a car
involved in a multi-car accident was held to be a third-party beneficiary of a release agreement that
had been executed between the plaintiff in that case and other drivers who were involved in the
accident.” There, the release language extended to “any and all other persons and/or corporations who are or may be liable for injuries or damages sustained as a result of the subject accident.”” And
in Dean, a court held that the employer ofa driver who caused a fatal car accident was a third-party
és td, 66 Id, at 355. oF 332 So. 2d 660 (Fla. Dist. Ct. App. 1976). 68 336 So. 24393 (Fla. Dist. Ct. App. 1976). 69 Hester, 332 So. 2d at 660. 790 Id, at 662.
beneficiary to a settlement agreement between the driver’s insurance company andthe administratrix
— Sethe wotim’s estate. The settlement there included general language releasing “any othef person, □□
corporation, association or partnership charged with responsibility for injuries to the person and
property of the Undersigned, and the consequences flowing therefrom, as the result of” the fatal
As Ms. Giuffre observes in her brief, the Hester and Dean releases were confined to
digerete events on a specific day identifiable subject accidents circumscribing narrowly the subject” □
matter of the purportedly released persons or claims.” So they too are inapposite here,
And there is a further problem common to all of defendant’s cases. None of the cases
that defendant cites dismissed claims against a defendant-putative third-party beneficiary who
asserted a release defensively at ihe motion-to-dismiss stage.” Prince Andrew’s view of “Other
Potential Defendants,” on the other hand, secks to confer rights on. unnamed third parties that would
be orders of magnitude broader those contemplated in any of the Florida cases that have been brought
to this Court’s attention. Moreover, whichever way these comparisons break, they matter little on
the facts of this case. The ultimate goal in any case involving a contract is to determine and give
effect to the “[t]he intention of the contracting parties.” Unlike the cases cited by the defendant,
where the parties’ intentions were perfectly plain, at Jeast by the time the cases were decided, the
intentions of Ms. Giuffre and Epstein concerning the release are anything but clear here, at leastat Dean, 336 §.0. 2d at 394. Dict. 43,at 12-15. Id, at 13. 74 City of Tampa v. Thornten-Tomasetti, P-C., 646 So. 2d 279, 282 (Fla. Dist. Ct. App. 1994).
this stage. The cases upon which defendant relies are of no, assistance in determining those
Te
C. The Dershowitz Argument □
Finally, the defendant nevertheless argues that his interpretation of the Other Potential
Defendants clause is the only reasonable one on the basis. of alleged events relating to Alan
a lawyer and retired Jaw professor whom Ms. | Giuftre Has sued in another case:
Defendant asserts that Ms. Giuffre “dismissed her claims against Professor Dershowitz. .. when this.
release was raised to her as a potenual defense.” This, according to Prince Andrew, proves that the 2009 Agreenient released Mr. Dershowitz and, by parity of reasoning, the defendant in this case,
the theory apparently being that both were Other Potential Defendants in the Florida Case.
During oral argument, the Court questioned that argument based on its suggestion that
Mr. Dershowitz was covered by the release in the 2009 Agreement because he has been one of
75 Giufire □□ Dershowitz, No. 19-cv-3377 (LAP).
76 Tr., Jan. 4, 2022, at 11:15-20; Dkt. 32, at 2, 3-4; Dkt. 52, at 2 ni. The argument rests on the factual premise that the release was asderted privately on behalf of Mr. Dershowitz to Ms. Giuffre’s counsel, who acquiesced in that assertion and backed oft, with respect to his proposed addition, in Ms. Giuffre’s case against Mr. Dershowitz, of a new battery claim when threatened with Rule |{ sanctions. That factual premise ig not supported by anything in Ms. Giuffre’s complaint in this action. Part of the premise is supported by a recital, and part contradicted by another provision, in a document filed in the Dershowitz action of which judicial notice now is taken. Dkt. 32, Ex. Hat 2. Inasmuch as judicial notice extends only to establishing the contents of that document, but not its tnith, however, the only thing it establishes for purposes of this motion is that counsel for Mr. Dershowitz and Ms. Giuffre agreed that the document “shall not at any time, or for any purpose, be construed as an admission by either party of the validity or invalidity of Plaintiff's battery claim or Defendant’s release defense, or the truth or falsity of the factual predicates thereto.” Id. 4.
29 Epstein’s attorneys” and therefore was among the “Second Parties” — in other words, that he was areil by thevelease independent of whether he waa serOther Poléntial Defendant, aSthedefenidant
now claims that he is. On further reflection and analysis, however, the suggestion that Mr.
Dershowitz was covered because he was one of the “Second Parties” was not necessarily correct. A release has three essential clemenits: (1) one who gives the release, usually referred “to as a releasor; (2) one against whom the releasor gives up or surrenders something, such a person béing velenred to as a veleasee; a and (3) a description of what is -seing released; wiil chmay be general (e.g., all claims whatever that the releasor has or may have against the releasee) ot specific (2, a releasor’s claim for damages caused by the releasee’s motor vehicle). In Section 2, the
category of releasors is plain enough: “the First Parties.” ‘There also is adesctiption of the releases:
(1) “the Second Parties and [2] any other person or entity who could have been included as a potential defendant (‘Other Potential Defendants’).” The problem, however, is with the claims against the
Second Parties (other than Epstein) that purportedly were released. Specifically, Section 2 says that
_the claims released were claims that the First Parties ever had or may have “against Jeffrey Epstein,
or Other Potential Defendants for, upon, or by reason of airy matter, cause, or thing whatsoever .
2778 Strikingly, it does not say that the First Parties released the Second Parties (other than Epstein
personally}, as such, from any particular claims at all, whether ali claims or some specific claims.
Accordingly, Element 3 of the essential elements. of a release — the specification of what claims
against the Second Parties were being released —is missing as to the Second Parties. Accordingly,
it would be reasonable, indeed, arguably unambiguously clear, that the 2009 Agreement did not
VW Tr., Jan. 4, 2022, at 12:2-4, 78 Dkt. 32, Ex. A, at 2 (emphasis added).
release any claims against any Second Parties except (1) for Epstein himself” and (2) those Second
— Parties (other than Epstein) who, in sition t being Second Paities, cane withivthe definition of □
Other Potential Defendants, whatever that is. To be sure, it might be argued that Section 2 should be read as a broad release of all
glaims that First Parties had or may have had against all of the Second Parties notwithstanding its ~~
failure to say that. “But that alternative interpretation cannot be the only reasonable view ofits
caning, Accordingly, the meaning and, indeed, as to the Second Parties as such (other than Epstein),
the validity of the release cannot be decided on this motion. The difficulty the problem presents,
however, is relevant to the extent it demonstrates yet again that the 2009 Agreement, whatever it was
intended mean, is riddled with drafting problems and ambiguities,
* *& *
The 2009 Agreement cannot be said to demonstrate, clearly and unambiguously, that
the parties intended the instrumentdirectly,” “primarily,” or substantially”to benefit Prince Andrew.
The existence of the requisite intent to benefit him, or others comparable to him, is an issue of fact
that could not properly be decided on this motion even if defendant fell within the releasing language.
which itself is ambiguous. Thus, independent of whether the release language applies to Prince
Andrew, the agreement, at a minimum, is “reasonably susceptible to more than one interpretation”
on the equally important question of whether this defendant may invoke it.” As a matter of Florida
law, this Court cannot rewrite the 2009 Agreement to give the defendant rights where the agreement
does not clearly manifest an intent to create them. OO As we have seen, Epstein was included in the definition of Second Parties. 30 See, e.g., Lambert, 680 So. 2d at 590; Miller, 789 So. 2d at 1097-98.
— peo Complaint States Legally Sufficient Claims □□
‘Ms. Giuffre’s complaint asserts two causes of action. Both are state law tort claims,
the first for battery and the second for intentional infliction of emotional distress (“TIED”). Defendant moves to dismiss both on the theory that plaintiffhas not alleged adequately any violation □
of the New York Penal Code. ER
A. Legal Principles To survive a motion to dismiss under Rule 12(b)(6), a compiaint must allege facts
sufficient to “state a claim to relief that is plausible-on its face."*! This standard is met where the
“pleaded factual content,” which on this motion must be assumed to be true, permits a “reasonable
inference that the defendant is liable for the misconduct alleged.” A complaint need not “anticipate potential affirmative defenses” or “affirmatively plead facts in avoidance of such defenses.’? As is the case with defendant's arguments predicated
on the 2009 Agreement, the Court may not dismiss on an affirmative defense unless “the defense
appears on the face of the complaint.”
ee gl Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 32 Asheroft v. Iqbal, 556 U.S. 662, 663 (2009). $3 Abbas v, Dixon, 480 F.3d 636, 640 (2d Cir. 2007); see Childers v. New York & Presbyterian Hosp., 36 F. Supp. 3d 292, 315 (S.D.N.Y. 2014). Pani. 152 F.3d at 74.
B. Analysis
he Complaint Is Legally Sufficient —
Plaintiffs complaint plainly alleges prima facie cases of battery and IED under New
York law. Indeed, defendant does not directly contest whether plaintiff's allegations satisfy the
elements of those causes of action. ee
The allegation that plaintiff was forced to sit on defendant’s lap while he touched her sufficient to Siate a battery claim under New York law, regardless of which Tpatt(s) of her body □□□□ defendant ultimately is alleged to have touched. To state such a claim, a plaintiff need aliege only that there was “bodily contact, that the contact was offensive, arid that the defendant intended to make
the contact without the plaintiff's consent.” Contact is offensive if it is “wrongful under all the
circumstances,” which certainly is a reasonable inference from Ms. Giuffre’s allegations.” The only
intent required is an intent to “cause a bodily contact that a reasonable person would find
offensive.”®” Any intentional touching effected “for the purpose of satisfying [one’s] sexual desires”
or made with knowledge “that [plaintiff] was a sex-trafficking victim being forced to engage in
sexual acts with him” would permit a reasonable person to find that the alleged contact was
inappropriate in all of the circumstances, to say nothing of the allegedly forced sex acts or sexual
35 Leytmany, U.S. Dep't of Homeland Sec. Transp. Sec. Admin., 804 F. App'x 78, 80 (2d Cir, 2020} (quoting Bastein v. Sotto, 299 A.D.2d 423, 433, 749 N.Y.S.2d 538, 539 (2d Dept. 2002)). 86 Messina vy. Matarasso, 284 A.D.2d 32, 35; 729 NLY.S.2d 4, 7 (ist Dept. 2001) (quoting Zgraggen v. Wilsey, 200 A.D.2d 818, 819, 606 N.Y.S.2d 444, 445 (3d Dept. 1994)). 87 Armstrong ex rel. Armstrong v. Brookdale Univ. Hosp. & Med. Ctr., 425 F.3d 126, 134 (2d Cir, 2005) (quoting Jeffreys v. Griffin, | NLY.3d 34, 43, 769 N.Y.S.2d 184, 189 n.2 (2d Dept. 2003)).
intercourse. □
“Fhe sufficiency of plaintiffs. TILED claim is similarly apparent. To state an TED claim □□
under New York law, aplaintiff must allege “(1) extreme and outrageous Conduct; (2) intent to cause,
or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal
sonnection between the conduct and the injury; and (4) severe emotional distress"? ~ □□
Defendant does not challenge the complaint’s sufficiency as to any of these elements.
Pjaintiffhas alleged severe emotional distress.” “She alleges that it was “a direct and proximate result ~
of Prince Andrew’s criminal acts”! She asserts that he “knew or disregaided the substantial
‘likelihood that [his] actions would cause Plaintiff severe emotional distress.” And, although she
so alleges in, ber complaint, it should go without saying that the alleged conduct, if it occurred,
reasonably could be found to have gone “beyond all possible bounds of decency and is intolerable
in a civilized community.”
_
Compl. {] 42-48. 89 Stuto v. Fleishman, 164 F.3d 820, 827 Qd Cir. 1999) (citing Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2¢ 350, 353 (1993)). 90 Comp). ff 68, 73. at ld. 92 Id. Y 72. 93 Id. 471; see Chanko v. Am. Broad. Companies Inc., 27 N.Y 3d 46, 56, 29 N.Y.S.3d 879 (2016) (defining extreme and outrageous coriduct as that which is “so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community”) (citations and internal quotation marks omitted), Farrell y. US. Olympic & Paralympic Comm., No. 20-CV-1178 (FIS/CFH), 2021 WL 482025], at *9 (N.D.N.Y. Oct. 15, 2021).
2. Defendant's Contention that the Plaintiff Was Obli ged to Plead Specific Facts
ee Demonstrating Violation of the New York Penal Law Is Incorrect
Abandoning reference to the causes of action in the complaint, defendant. seeks
dismissal on the ground that plaintif “has not adequately alleged a violation of the New York Penal
Code." He insists that plaintiff is required to allege “conduct which would constitute a sexual
offense. as defined in article one hundred thirty of the penal law.”®> The argument relies heavilyon
the observation that plaintiff's claims would be time-barred but for the New York Child Victims Act
(CCVA”), which revived child sex abuse claims “tied to an alleged violation of New York criminal
law.” ss Defendant’s view of the pleading standard is at odds with the Federal Rules of Civil □□□□
Procedure, Rule 8 requires only “a short and plain statement of the claim showing that the pleader
is entitled to relief” on the theory assetted.*? Here, the CVA does not create plaintiff's cause of
action. She is required only to plead facts sufficient to allege battery and ITED. Whether any of the
alleged conduct rose to a violation of New York Penal Law goes only to the question whether Ms.
~“Gaftre’s claims are time-batred — that is, to ani affirmative defense. When defendant asserts □□□□
a defense, it will be his burden to establish that the claims are untimely. Whatever hurdles the CVA
ultimately requires plaintiff to clear to defeat a statute of limitations defense are not relevant on this
94 Dkt. 31, at 19. 95 Id, (quoting and adding emphasis to N.¥. CPLR § 2 \4-g). 96 N.Y. CPLR § 214-g; Holloway v. Holy See, No. 19 Civ, 2195 (NRB), 2021 WL 1791456, at #2 n.2 (S.D.N.Y. May 5, 2021). $7 FRp. R. Civ. P. 8(a)(2).
motion. □
3. Plaintiff’s IED and Battery Claims Are Not Duplicative The defendant argues next that Ms. Giuffre’s IIED claim should be dismissed as
"duplicative of her battery claim. ‘He says this is so because “under well-established New York Law, :
‘claims are duplicative when both arise from the same facts and seck the identical damages foreach alleged breach”**” But Ms. Giuffre’s claims doreithe, “=
Defendant’s motion misunderstands the two causes action. Plaintiff's HED claim
arises, at feast in part, from alleged conduct that forms no element of her battery claim. Ms, Giuftre
alleges, among other potentially distinguishing conduct, that the defendant caused her to witness the
abuse of another victim.’ That allegation thus alleges injury flowing from different conduct than
the alleged non-consensuai physical contact. As a claim is not duplicative where a plaintiff has set
ee oO Of course, the complaint does allege that the conduct rises to the level of an Article 139 violation, “including but not limited to sexual misconduct as defined in Article 130.20, rape in the third degree as defined in Article 130.25, rapé in the first degree as defined in Article 130.35, forcible touching as defined in Article 130.52, sexual abuse in the third degree as. defined in Article 130.55, and sexual abuse in the first degree as defined in article 130.65,” supported by her actual allegations. Compl. { 67. There is no colorable argument that defendant’s statute of limitations defetse appears “on the face of the complaint.” Pani, 152 F.3d at 74; ef Doe v. Baram, 20 Civ. 9522 (ER), 2021 WL 4847076 (S.D.N.Y. Oct. i5, 2021) (denying motion to ‘dismiss even where complaint did not cite specific provisions of Article 139). 99 Dkt. 31 at24 (quoting Deutsche Rank Nat’i Trust Co. v. Quicken Loans Inc., 810 F.3d □□□□ 869 (2d Cir. 2015) (internal citations and quotation marks omitted) (applying New York law)). 100 Compl. 739.
36 forward “substantiating conduct that differs from . _ other causes of action,?!°! her ITED claim is not “duplicative of her battery claim. Regardless of what share of her injuries, if any, is dué to battéry □
commitied against her person, her I[ED claim therefore must be permitted at this stage to proceed because she has alleged potentially tortious conduct in addition to battery. Moreover, as defendant admitted during oral argument, the single satisfaction rule would foreclose plaintiff from recovering more than once for any given harm.'™ □
“it ore substantially, the two claims dé not seek idénitical relief. Even though plaintiff seeks damages on each claim, her requested relief does not éntirely overlap. To be sure, Ms. Giuffre asserts that the alleged battery caused some measure of “extreme emotional distress” and “neychological trauma.”"? But when drawing all inferences in plaintiff's favor, the complaint pleads facts sufficient to allow a reasonable jury to return a damages award on emotional distress that is over and above what it might award on battery. As it stands, any risk of duplicative recovery may be resolved by jury instructions.’ ft is for these reasons that battery and ITED claims routinely proceed
Schaoleraft v. City of New York, 103 F. Supp. 3d 465, 521 (S.D.N.Y. 2015); see also Chau y. Donovan, 357 F. Supp. 3d 276, 288-89 (S.D.N.Y. 2019) (holding a defendant’s text messages pressuring plaintiff te engage in sex supported a separate ILED: claim since that “potentially tortious conduct” was not subsumed by any theory of battery). 102 Tr., Jan. 4, 2022, at 20-21. 103 . Compl. § 68. 104 See Bender v. City of New York, 78 F.3d 787, 793, 794 n.5 (2d Cir. 1996) (concluding that “at least part of the injury .. . suffered trom the battery—emotional pain and suffering—is part of the injury. . . suffered from the emotional injury tort” and suggesting the following language for a jury instruction to prevent duplicative awards: “Any damage award for the emotional distress claim must be limited to the component of injury you find sustained for this claim, if any, over and above whatever emotional distress you. have already compensated by your awards for other claims”).
in tandem under New York law.'®
The Attack on the Constitutionality of the New York Child Victims Act Is Without Merit
The final ground on which defendant moves to dismiss the complaint is that the
‘CVA’s claim-revival provision — in other words, the Limited extension of the statute of limitations
for civil claims by child victims of sexual abuse.— is unconstitutional. ‘Specifically, he argues that □□
the New York State Legislature violated the Due Process Clause ofthe New York Constitution when
it temporarily revived child sexual abuse clams that otherwise would have been too late." Defendant is not the first litigant to advance this argument, which has been rejected
ee 105 See, ¢.g., Laurie Marie M. v. Jeffrey T.M., 816 F.3d 214, 227 (2d Cir. 2016); Chau 357 F. Supp. 3d at 288; Canosa ». Ziff, No. 18 Civ. 4115 (PAE), 2019 WL 498865, at *27 (S.D.NY. Jan, 28, 2019); Doe v. Alsaud, 224 F. Supp. 3d 286, 295 (S.D.N.Y. 2016). 106 See N.Y. CONST. art. 1, § 6; N.Y. CPLR § 214-g. At oral argument, defendant shifted his ground extensively, suggesting that former Governor Andrew Cuomo twice extended the ee yevival period fixed by the Legislature for the commencement of actions covered by the Act. by executive order and that the Governor's action was unconstitutional. Tr., J an, 4.2022, at 22-26, This argument is based on an inaccurate factual premise, comes too late, and is without inerit in any case. First, this argument surfaced only during oral argument. As new argumenis first made ina reply brief are too late, it follows necessarily that the same is true of new arguments first raised at oral argument. Second, it is true that the Governor extended the original extension period, but he did so only once, see Executive Order No. 202.29, Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency (May 8, 2020), not twice as defendant claimed, and the Legislature subsequently extended it again. See 2020 Sess. Law News of N.Y..Ch. 130-(S. 7082) (McKinney). Thus, the timeliness of plaintiffs suit depends only on the Legislature’s action, not the Governor’s. Third, the Court sees no meaningful distinction between the Legislature’s enactment of the original revival statute and its later extension of it. Accordingly, the constitutionality of the revival of the limitations period tums entirely on whether the New York Legislature deprived Prince Andrew of constitutional rights by reviving the limitations period, either generally or as applied to this case. The Court thinks not.
by every New York state and federal court to have encountered And it has been rejected
“pepeate ly for good reason. coe eee
Drawing primarily on New York cases from the 1920s and 1950s,"? defendant-urges
that “[nJearly a hundred years of precedent make clear that claim revival is permitted only when there
is an injustice of a type that makes a piaintiff legally unable to sue. Whatever the historical
practice may have been, the New York Court of Appeals recently made clear that the test forwhether
jaim-revival statute runs afoul ofthe New York Due. Process Clatise is simply whether the revival
statute is “a reasonable measure to address an inj ustice.!!? The CVA’s limited claim-revival window
was a reasonable measure to address an inj ustice and well within bounds of the new legal standard
articulated shortly before its passage. As another judge of this Court recently concluded with respect
to Ms. Giuffre’s pending action. against Mr. Dershowitz, “New York Courts’ historical skepticism
of claim-revival provisions appears to be just that: historical." Defendant suggests that the Legislature “lacked the constitutional authority to revive
Farrell, 2021 WL 4820251, at #9: PC-41 Doe v. Poly Prep Country Day Sch., 20-CV- 03628 (DG) (SJB), 2021 WL 4310891, at *7 (E.D.N-Y. Sept. 22, 2021); PC-dI Dee, 2021 WL 791834, at *1 (E.D.N.Y. Mar. 1, 2021); PB-36 Doe v. Niagara Falls City Sch. Dist., 152 N.Y.8.3d 242, 248 (N.Y. Sup. Ct. Niagara Co. 2021); Torrey v. Portville Gent. Sch., No. 88476, 2020 WL 856432, at #4 (NY. Sup. Ct. Cattaraugus Co. Feb, 21, 2020); ARK3 Doe y. Diocese of Rockville Ctr., No. 9000010/2019 (N.Y, Sup. Ct. Nassau Co. May 11, 2020), Giuffre v. Dershowitz, 19-cv-3377 (LAP}, 2020 WL 21 23214, at *2(S.D.N.Y. Apr. 8, 2020).
108 Dkt, 31, at 24-26. 109 id, at 25, 119 tn ve World Trade Cir. Lower Manhattan Disaster Site Litig., 30 N.¥.3d 377, 400, 67 N.Y.S.3d 547 (2017). lil Dershowitz, 2020 WL 2123214, at *2.,.
___elaims” for sexual abuse plaintiffs who have “teached adulthood . .. within the applicable three-
~ Year statute of Timitations.”"”” His argument fandamentally is that ciiforcing the usual statute □□□
limitations to bar claims of child sexual abuse causes no “injustice” where “those who wished to sue
were not barred from doing so” solely because they were minors — in other words, where the victims
~~ came adults at a time when they could have brought suit before the statute of limitations period =~
expired.''? The Court of Appeals, however, has made clear also that * fijn the context ofa
—"—Taimerevival statute, there is no principled way for a court to test whether a particular injustice is
“serious” or whether a particular class of plaintiffs is blameless; such moral determinations are left
to the elected branches of government." As Ms. Giuftre notes in her opposition, a range of le gislative judgments undergitd the
provision’s patent constitutionality, both on its face and as applied to her claims." These include
New York’s comparatively restrictive limitations period for sexual abuse claims, improved
understanding of victims’ barriers to. coming forward with those claims, and the imminent threat that
abusers pose to public safety.!'® Each of these is capable of insulating both the initial one-year
revival window and its subsequent extension from a New York Due Process Clause challenge, to say
nothing of the latter measure’s relationship to ensuring access to justice during a global pandemic. As to whether the claim-revival legislation represents 4 “reasonable measure,”
Att Dict. 34 at 26-27. 13 dd. at27. ila In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y 3d at 400. 135 Dkt..43 at 30, 116 See id.
defendant’s most discernable objection is that “the legislature hastily passed legislation to amend the «CVA by doubling ‘the claim-revival period from one year to two.” He eontends that □□□□
Legislature’s one-year extension. was not a “reasonable response” in light of the Governor's neat-
contemporaneous executive order extending the filing window by five months on account of COVID-
19. He argues also that there is “no indication” that the New York Court of Appeals “ever [has] approved of a legislature's extension of the deadline for filing time-barred claims in the middle of □□
original claim-revival period
With or without a global pandemic, New York’s modest two-year revival wiridow was
a reasonable measure for remedying injustice to victims without treading upon the state
Constitution’s Due Process Clause. Not only was itreasonable, it was modest compared to the claim- revival measures adopted by other state legislatures in the child sex abuse context. Numerous states
have opened revival windows that were two years of longer from their inception, some of which were
later extended for additional multiyear periods. © Other jurisdictions have enacted indefinite clatm-
revival windows.” And in some of the states that have adopted an age-based approach, Ms.
il7 Dkt. 31 at 28. 118 Id. iy See, e.g., 10 DEL. CODE § 8145(b) (opening two-year window beginning in 2007); Sheehan y. Oblates of St. Francis de Sales, 15 A3d 3247, 1258-59 (Del. 2011) (confirming constitutionality); 2013 Minn. Sess. Law Serv. Ch. 89 § S(d) (amending MINN, STAT. § 514.073) (opening three year window beginning in 2013), KE. v. Hoffman, 452 N.W.2d 509, 513-14 (Minn. 1990) (confirming constitutionality of initial revival period); Haw. REV. STAT. § 657-1.8(2)(b) (extending original two-year window to eight years). 120 See, e.g. 12 VI. STAT. ANN. § 522(a); 7 G.C.A. § 11301106).
4}
Giuffre’s claims would have remained timely for at least another decade.”' Certainly, each of those
~ — ival statutes was passed against the enacting state’s unique constitutional backdrop. But each
relevant to show that the measures here selected by the New York Legislature were among the most
injlored and most mindful of the due. process concerns defendant emphasizes in his motion. It is
dieficult to imagine substantially narrower measures capable of addressing the injustices animating □□
the CVA. Indeed, our attention has not been éalled to any state or territory that ever has adopted a
abuse claim-revival window shorter than year. —t— Defendant’s observation that the CVA revived claims for those who suffered harm as a result of sexual abuse when they were under the age of eighteen, when the New York age of consent for other purposes now is seventeen, does not bear on the CVA’s constitutionality."* There are inany ways a plaintiff may establish that a sexual act was committed without his or her consent. Such acts also may be noncousensual on more than one legal theory. True, lack of consent is established as a matter of law for individuals who were under the age of seventeen at the time of the offense, But that fact says nothing of the reasonableness of reviving claims of others who were over seventeen but less than eighteen when they were abused. Lack of consent in such cases can be established at least by physical force or actual or implied threats. Contrary to his assertion, defendant’s concerns over “false memories” and other evidentiary matters are not always greater in cases in which the alleged victim claims that be or she acquiesced as a result of such duress.’ Even ee 17 See, ¢.g., 9 R.A GEN, LAWS § 9-1-51 (opening window until age 53 as against perpetrators); MASS. GEN. LAWS ch.260 § 4C (opening window until age 53 as. against perpetrators); Sliney y, Preyilg, 41 N.E.3d 732, 739-43 (Mass. 2015) (confirming constitutionality). 129 □ See Dkt. 52 at 8. 123 Id. where a claimant can establish lack of consent as a matter of law, other evidence — including ~ “Subjective evidence — often is required to prove the conduct that actually occurred. Defendant’s far reaching speculation about what evidence will or will not be relevant to the issue of consent, both in this case and in others like it, is no basis for distinguishing between claims brought by victims who were under seventeen and those where were under eighteen. The CVA’s creation of a narrow window for allowing previously timé-barred.child sexual abuse claims to proceed is neither more nor veasonable for having set the upper age limit for those who benefit from: that window atage™ eighteen rather than setting it at the legal age of consent, seventeen. Lacking persuasive legal authority with which to question the CVA’s constitutionality, defendant’s motion falls back onto doctrinal anachronism and inapposite authority on claim revival at common law.* Aécordingly, as another court in our Circuit has put it, “while [his] argument regarding unconstitutionality is creative, itis... without merit.”!7* iV, Defendant Is Not Entitled to a More Definite Statement. He Will Get the Detail He Seeks During Discovery. ~ oe ee ee cee □□ □□□ Defendant’s alternative motion for a more definite statement is similarly meritless. As defendant correctly observes, Rule 12(e) affords relief where the complaint “is so vague or ambiguous that the [defendant] cannot reasonably prepare a response.”'* That Rule, however, entitles movants to a more definite statement only where the complaint is so vague or ambiguous as ee Yad See Dkt. 31 at 26 (relying on Zumpano v. Quinn, 6 N.Y.3d 666(2006) to suggest that the CVA revival provision goes beyond “the scope of... legislative authority”). 125. PC-4] Doe, 2021 WL 791834, at *1, 126 FEp, R. CIv, P. 12(e). to be unintelligible.'”” "Ne Giuftre’s complaint is neither “unintelligible” nor “vague” nor “ambietious, It □□ alleges discrete incidents of sexual abuse in particular circumstances at three identifiable locations. it-identifies to whom it attributes that sexual abuse. Defendant nevertheless holds out that he cannot reasonably prepare a response because plaintiff has not described “what purported sexual contact occurred . . _ when and where the incident ~~~ oceurred, or the forcible compulsion she was under due to express or irplied threat” to the degree of specificity that he would like.'* While he understandably seeks more detail about the precise’ details of plaintiff's claims, he will be able to obtain that detail during pretrial discovery.'° Moreover, défendant’s assertion that he cannot reasonably prepare a response to plaintiff's allegations plainly contradicts the content of his moving papers, in which he denies Ms. Giutfre’s allegations in no uncertain terms.'™” Conclusion For the foregoing reasons, defendant's motion to dismiss the complaint or for a more definite statement is denied in all respects. Given the Court’s limited task of ruling on this motion, ee 127 See Kok v. First Unum Life Ins. Co., \54 F. Supp. 2d 777, 781-82 (S.D.N.LY. 2001); Kelly vi LL. Cool.f., 145 F.R.D. 32, 35 (S-D.N.Y. 1992), aff'd, 23 F.3d 398 (2d Cir, 1994). 128 Dkt. 31 at 29. (29 See, e.g., Casella v. Hugh O’Kane Elec. Co.,. No. 00 Civ. 2481 (LAK), 2000 WL 1530021, at *1 n.2 (S.D.N.Y. Oct. 17, 2000). 136 Dkt. 31] at | (“Prince Andrew never sexually abused or assaulted Giuffre. He unequivocally denies Giuffre’s false accusations against him.”). 4d nothing in this opinion or previously in these proceedings properly may be construed as indicating aw wi niger th bis Geena o 451 hein Pte ates in entering into the 2009 Agreement. SO ORDERED. Dated: Januaryl1,2022 9 □□ United States District Judge
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