Case 9:08-cv-80119-KAM Document 41 Entered on FLSD Docket 09/22/2008 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80119-MARRa JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. PLAINTIFF'S MEMORANDUM IN RESPONSE TO DEFENDANT'S MOTION TO DISMISS Plaintiff, Jane Doe No. 2, ("Jane" or "Jane Doe"), by and through her undersigned counsel, files this Memorandum in Response to Defendant's Motion to Dismiss, and states as follows: 1. Defendant, Jeffrey Epstein is alleged to have sexually abused Jane Doe when she was a minor. The Complaint is in two Counts: Count I is labeled "Sexual Assault", and alleges an intentional ton based on the actions of Jeffrey Epstein; Count II alleges the tort of intentional infliction of emotional distress based on the same factual allegations. Defendant Epstein has moved to dismiss only Count I of the Complaint, contending that Plaintiff has failed to state a claim. Simultaneously herewith, Plaintiff intends to file an Amended Complaint which substantially revises Count I and moots the Defendant's Motion to Dismiss.' 2. In any event, the Complaint sufficiently alleged a claim for sexual assault and battery. ' The Amended Complaint also adds as Count III a federal claim against Defendant Epstein under 18 U.S.C. §§2422 and 2255. Under Fed.R.Civ.P. 15(a), a party may amend the pleading once as a matter of course before being served with a "responsive pleading". Defendant has not to date filed a "responsive pleading" in this case within the meaning of Fed.R.Civ.P. 7(a). It is established in the courts of the Eleventh Circuit that a motion to dismiss is not a "responsive pleadin " and does not affect a plaintiffs right to amend the pleading once as a matter of course. v. Board of Regents, 477 F.3d 1282, 1291 (11th Cir. 2007). HERMAN & MERMELSTEIN, P. A. www.hermanlaw.com - 1- EFTA02743743