{"efta_number": "EFTA02846274", "page_count": 17, "url": "https://epstein-data.com/EFTA02846274", "pdf_url": "https://epstein-data.com/pdf/EFTA02846274.pdf", "pages": [{"efta_number": "EFTA02846274", "page_number": 0, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 1 of 17\n\nUNITED STATES DISTRICT COURT\nSOUTHERN DISTRICT OF NEW YORK\nCASE NO.: 1:19-cv-07625-AJN\nVE,\nPlaintiff,\nvs.\nDARREN K. INDYKE AND\nRICHARD D. KAHN AS JOINT\nPERSONAL REPRESENTATIVES OF\nTHE ESTATE OF JEFFREY E. EPSTEIN,\nNINE EAST 71ST STREET, CORPORATION,\nFINANCIAL TRUST COMPANY, INC.,\nNES, LLC,\nDefendant.\n\nPLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO\nDEFENDANTS' MOTIONS TO DISMISS\n\nEFTA02846274\n\n", "char_count": 467}, {"efta_number": "EFTA02846274", "page_number": 1, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 2 of 17\n\nTABLE OF CONTENTS\nTABLE OF AUTHORITIES\n\nii\n\nI.\n\nPRELIMINARY STATEMENT\n\n1\n\nII.\n\nARGUMENT\n\n2\n\nA.\n\nLegal Standard\n\n2\n\nB.\n\nCount I of Plaintiff's Complaint is not time barred nor is it duplicative of Count II\n\n3\n\nC.\n\nPlaintiff has adequately pled her negligence claims against the Corporate Defendants 5\ni.\n\nPlaintiff's \"negligent security\" claim against Nine East (Count III) should not be\ndismissed.\n\n6\n\nii.\n\nPlaintiff's negligence claim against FTC (Count IV) should not be dismissed.\n\n8\n\niii.\n\nPlaintiff's negligence claim against NES (Count V) should not be dismissed.\n\n10\n\nD.\n\nPlaintiffs claims for punitive damages must be dismissed because they are precluded by\nNY EPTL § 11-3.2.\n12\n\nE.\n\nShould the Court find any aspect of Plaintiff's Amended Complaint to be deficient, she\nrespectfully requests leave to amend.\n12\n\nIII.\n\nCONCLUSION\n\n13\n\nEFTA02846275\n\n\n\n[═══ TRANSCRIPT ═══]\nCase 1:19-cv-07625-AJN-DCF  Document 45  Filed 12/18/19  Page 4 of 17  Other Authorities New York Child Victims Act (\"CVA\") Torts 2d, s 344  1 7  Rules Fed. R. Civ. P. 12(6)(6)  2, 13  iii  EFTA02846277", "char_count": 1153}, {"efta_number": "EFTA02846274", "page_number": 2, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 3 of 17\n\nTABLE OF AUTHORITIES\nCases\nArista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)\n6, 10\nAshcroft v. lqbal, 556 U.S. 662, 663 (2009)\n3\nAshcroft v. lqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009)\n5\nBackiel v. Citibank, 299 A.D.2d 504, 505\n7\nBell Ad. Corp. v. Twombly, 550 U.S. 544, 555 (2007)\n3, 5, 6, 10\n7\nBlatt v. L'Pogee, Inc., 112 A.D.3d at 869, 978 N.Y.S.2d 291\nBoykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir.2008)\n6, 10\nBrothers v. New York State Elec. & Gas Corp., 11 N.Y.3d 251, 257-258\n7\nBumpus v. New York City Tr. Auth., 47 A.D.3d 653, 654)\n8\nDetone v. Bullit Courier Service, Inc., 140 A.D.2d 278, 279, 528 N.Y.S.2d 575)\n8\nDoralee Estates, Inc. v. Cities Serv. Oil Co., 569 F.2d 716 (2d Cir. 1977)\n12\nHorowitz v. 763 Eastern Associates, LLC, 125 A.D.3d 808 (2015)\n7\nHudak v. Berkley Grp., Inc., No. 3:13-CV-00089-WWE, 2014 WL 354676, at *4 (D. Conn. Jan.\n23, 2014)\n5\nLB. Trading, Inc. v. Tripoint Glob. Equities, LLC, No. 17-CV-I962 (JGK), 2017 WL 5485318,\nat *1 (S.D.N.Y. Nov. 15, 2017)\n3\nKirkman by Kirkman v. Astoria General Hosp., 204 A.D.2d 401 (1994)\n8\n!Crystal G. v. Roman Catholic Diocese of Brooklyn, 34 Misc. 3d 531, 537 (Sup. Ct. 2011)\n8\nMills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993)\n3\nNallan v. Helmsley- Spear, Inc., 50 N.Y.2d 507, 519\n7\nPasternack v. Lab Corp. ofAm. Holdings, 807 F.3d 14, 19 (2d Cir. 2015)\n6\nPrecision Assocs., Inc. v. Panalpina World Transp., (Holding) Ltd., No. CV-08-42 JG WP,\n2013 WL 6481195, at *12 (E.D.N.Y. Sept. 20, 2013), report and recommendation adopted,\nNo. 08-CV-00042 JG VVP, 2014 WL 298594 (E.D.N.Y. Jan. 28, 2014)\n6\nProvenzano v. Roslyn Gardens Tenants Corp., 190 A.D.2d 718 (1993)\n7\nRonessa H. v. City of New York, 101 A.D.3d 947, 948 (2012)\n8\nv. Equitable Life Assur. Socy. of U.S., 79 N.Y.2d at 668)\n7\nv.\nSofia\n, 17-cv-I829, 2018 U.S. Dist. Lexis 60947, at *10 (S.D.N.Y. Apr. 10, 2018) 6\nTardibuono-Quigley v. HSBC Mortg. C\n... [truncated, 2223 chars — for the full page use /api/corpus/document/EFTA02846274/2 or ?id=EFTA02846274&page=2]", "char_count": 2223}, {"efta_number": "EFTA02846274", "page_number": 3, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 4 of 17\n\nOther Authorities\nNew York Child Victims Act (\"CVA\")\nTorts 2d, s 344\n\n1\n7\n\nRules\nFed. R. Civ. P. 12(6)(6)\n\n2, 13\n\niii\n\nEFTA02846277\n\n", "char_count": 204}, {"efta_number": "EFTA02846274", "page_number": 4, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 5 of 17\n\nPlaintiff, VE, by and through her undersigned counsel, opposes Defendants' Motion to\nDismiss her Amended Complaint, and states as follows.\nI.\n\nPRELIMINARY STATEMENT\nIn 2001, Plaintiff was sexually abused by Jeffrey Epstein when she was only sixteen years\n\nold. [Amended Complaint, DE 3 ¶ 46]. As alleged in detail in the Amended Complaint, Jeffrey\nEpstein committed these abhorrent acts of sexual abuse against Plaintiff after she \"was recruited\nby another minor child to go to Jeffrey Epstein's mansion in Manhattan, New York to provide him\nwith a \"massage.\" Id. at 1 46, 47. Pursuant to the New York Child Victims Act (\"CVA\"), Plaintiff\nhas a clear viable claim against Jeffrey Epstein for the abhorrent sexual violations that he\ncommitted against her. However, Jeffrey Epstein could not have and did not act alone.\nJeffrey Epstein was an officer, director, employee, or owner of many corporate entities\nregistered in various states throughout the United States, many of which also bear legal\nresponsibility for the crimes that he committed against Plaintiff. Id. at ¶ 12. For example,\nEmployees of Defendants who worked at the residences where he committed sexual violations as\nwell as others who assisted him in committing such violations, were employed through, or worked\nfor, the corporate entities named herein whose negligence caused or contributed to the sexual\nviolations committed against Plaintiff. Id. at ¶ 13. There can be no doubt that Defendant, Nine\nEast 71st Street, as owner of the home wherein Plaintiff was sexually abused was negligent as the\nproperty owner who had a non-delegable duty to keep Plaintiff safe, which it clearly failed to do.\nMoreover, Defendants Financial Trust Company and NES, LLC both acted in a similar\nmanner insofar as they each employed individuals whose sole purpose was to further Jeffrey\nEpstein's sex trafficking enterprise, which included the victimization of Plaintiff\n\nIn fact\n... [truncated, 2213 chars — for the full page use /api/corpus/document/EFTA02846274/4 or ?id=EFTA02846274&page=4]", "char_count": 2213}, {"efta_number": "EFTA02846274", "page_number": 5, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 6 of 17\n\nthe concealment of his sexually abusive acts. Id. at ¶ 37. The recruiters were taught by employees\nof Defendants to inform targeted victims that Epstein possessed extraordinary wealth, power,\nresources, and influence; that he was a philanthropist who would help female victims advance their\ncareers and lives; and that she only needed to provide Epstein with body massages in order to avail\nreceive his assistance and influence. Id. at ¶ 39-44.\nPlaintiff has clearly made sufficient allegations within the four corners of her Amended\nComplaint to establish causes of action against Defendant Estate of Jeffrey E. Epstein, Nine East\n71' Street, Corp., Financial Trust Company, Inc., and NES, LLC. To the extent that the Court\nfinds Plaintiff's Amended Complaint deficient in any way, Plaintiff respectfully requests that she\nbe granted leave to amend her Complaint as Jeffrey Epstein and these Defendants should be held\nresponsible for the harm that they have each respectively caused Plaintiff. Defendant Corporations\nshould not be permitted to abscond from liability when their very actions and inactions caused\nPlaintiff to endure horrific sexual abuse at only sixteen years.\nII.\n\nARGUMENT\nIn ruling on a motion to dismiss, the Court must take all allegations in the Amended\n\nComplaint as true and all inferences are drawn in favor of the plaintiff in determining whether\nPlaintiff stated a cause of action. Plaintiff has properly pled all elements of her claim pursuant to\nthe CVA and all other applicable New York law. Accordingly, Defendants' Motion to Dismiss\nshould be denied in its entirety.\nA.\n\nLegal Standard\n\n\"In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the Amended\nComplaint are accepted as true, and all reasonable inferences must be drawn in the plaintiffs' favor.\nThe Court's function on a motion to dismiss is `not to weigh the evidence that might be presented at a\ntrial but mer\n... [truncated, 2108 chars — for the full page use /api/corpus/document/EFTA02846274/5 or ?id=EFTA02846274&page=5]", "char_count": 2108}, {"efta_number": "EFTA02846274", "page_number": 6, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 7 of 17\n\ndismiss the Amended Complaint if the plaintiffs have stated `enough facts to state a claim to relief that\nis plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that\nallows the court to draw the reasonable inference that the defendant is liable for the misconduct\nalleged.\"' LB. Trading, Inc. v. Tripoint Glob. Equities, LLC, No. 17-CV-1962 (JGK), 2017 WL\n5485318, at *1(S.D.N.Y. Nov. 15, 2017) (internal citations omitted); see also Mills v. Polar Molecular\nCorp., 12 F.3d 1170, 1174 (2d Cir. 1993) (holding that on a motion to dismiss pursuant to Rule\n12(bX6), all factual allegations in the complaint are accepted as true, and all inferences are drawn\nin favor of the pleader). Furthermore, a complaint must only contain \"sufficient factual matter,\naccepted as true, to `state a claim to relief that is plausible on its face.'\" Ashcroft v. lqbal, 556\nU.S. 662, 663 (2009) (quoting Bell Ad. Corp. v. Avombly, 550 U.S. 544, 555 (2007)). A claim is\nfacially plausible when \"the plaintiff pleads factual content that allows the court to draw the\nreasonable inference that the defendant is liable for the misconduct alleged.\" lqbal, 556 U.S. at\n663 (quoting Twombly, 550 U.S. at 555).\nHere, Plaintiff has properly included allegations that are directly relevant to her claims of\nsexual battery as a minor child. Collectively, Defendants engaged in trafficking and sexually\nabusing girls in their criminal enterprise, of which Plaintiff was a direct victim. The facts alleged\nin the Amended Complaint demonstrate knowledge and motive of all Defendants and demonstrate\nthat the Defendants were indeed an operating group of co-conspirators who had operated in concert\nas such for years.\nB.\n\nCount 1 of Plaintiff's Complaint is not time barred nor is it duplicative of\nCount II.\n\nDefendants argue that Plaintiff's first cause of action for battery is time barred and must be\ndismissed purs\n... [truncated, 2199 chars — for the full page use /api/corpus/document/EFTA02846274/6 or ?id=EFTA02846274&page=6]", "char_count": 2199}, {"efta_number": "EFTA02846274", "page_number": 7, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 8 of 17\n\n§ 214(5). However, pursuant to CPLR § 215(8)(a) \"[w]henever it is shown that a criminal action\nagainst the same defendant has been commenced with respect to the event or occurrence from\nwhich a claim governed by this section arises, the plaintiff shall have at least one year from the\ntermination of the criminal action as defined in section 1.20 of the criminal procedure law in which\nto commence the civil action, notwithstanding that the time in which to commence such action has\nalready expired or has less than a year remaining.\"\nOn July 2, 2019, the United States Attorney's Office for the Southern District of New York\nfiled a Sealed Two Count Indictment against Jeffrey Epstein inclusive of One Count of Sex\nTrafficking Conspiracy and One Count of Sex Trafficking, in part based on the criminal activities\nthat Epstein committed against children at Defendant Nine East's property. [DE 3] at ¶ 28-35.\n\"Minor victim VE was subjected to the types of illegal sexual acts detailed in the Criminal\nIndictment filed against Jeffrey Epstein by the Southern District of New York.\" Id. 1 45. The\ncriminal action against Jeffrey Epstein terminated on August 27, 2019. Consequently, in accord\nwith New York law, Plaintiff has until August 27, 2020 to file any claim for battery or personal\ninjury.\nDefendant's next argument is that Plaintiff's first battery claim is duplicative of her second\nbattery claim. That is not the case. Plaintiff is permitted to plead alternative theories of recovery\nand has good reason to do so in this instance. As Defendants are aware, the constitutionality of\nthe CVA has been challenged in New York state court, a fact which counsel for Defendants has\nalready addressed in open court in another related matter in this District. While Plaintiff strongly\nbelieves that the constitutional challenge to the Act will fail, the challenge is being litigated\nnonetheless. Consequently, it is possible, althou\n... [truncated, 2176 chars — for the full page use /api/corpus/document/EFTA02846274/7 or ?id=EFTA02846274&page=7]", "char_count": 2176}, {"efta_number": "EFTA02846274", "page_number": 8, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 9 of 17\n\nCount I of her Amended Complaint for battery, which is a long standing cause of action that is not\ntime barred by New York law as explained above.\nAlthough Defendants make initial assertions that Count II of Plaintiff's Amended\nComplaint should be dismissed to the extent it is based on occurrences after Plaintiff turned 18,\nPlaintiff does not claim that there were any such occurrences. Therefore, by Defendants' own\nadmissions, Count II of Plaintiff's Amended Complaint is not being challenged and should not be\ndismissed.\nC.\n\nPlaintiff has adequately pled her negligence claims against the Corporate\nDefendants.\n\n\"To survive a motion to dismiss, a complaint must contain sufficient factual matter,\naccepted as true, to 'state a claim to relief that is plausible on its face.'\" Ashcroft v. Iqbal, 556 U.S.\n662, 678, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009) (internal quotation omitted). Plaintiff's\nAmended Complaint clearly meets the basic pleading requirements from Twomblyliqbal because\nevery allegation she has pled is \"plausible on its face.\"\nFurthermore, Plaintiff has not engaged in group pleading. Plaintiff has thoroughly laid out\na factual basis that applies to each of the respective Defendants. Each delineated cause of action\nspecifies one particular Defendant and includes the specific factual basis for that Defendant to\nsupport the cause of action as is required under New York law. The language of the Amended\nComplaint is clear, each of the Defendants were negligent. \"Prior to discovery, plaintiff need not\nexplain the details of each defendant's role in the planning. funding, and executing defendants'\nalleged joint [] scheme.\" Hudak v. Berkley Grp., Inc., No. 3:13-CV-00089-WWE, 2014 WL\n354676, at *4 (D. Conn. Jan. 23, 2014); see also Tardibuono-Quigley v. HSBC Mortg. Corp.\n(USA), No. 15-CV-6940 (KMK), 2017 WL 1216925, at •8 (S.D.N.Y. Mar. 30, 2017); cf.\nPrecision Assocs., Inc. v. Panalpina World Tra\n... [truncated, 2066 chars — for the full page use /api/corpus/document/EFTA02846274/8 or ?id=EFTA02846274&page=8]", "char_count": 2066}, {"efta_number": "EFTA02846274", "page_number": 9, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 10 of 17\n\nWL 6481195, at *12 (E.D.N.Y. Sept. 20, 2013), report and recommendation adopted, No. 08-CV00042 JG VVP, 2014 WL 298594 (E.D.N.Y. Jan. 28, 2014).\nDefendants further argue that Plaintiff fails to provide the specific identity of any person\nwho acted on behalf of the Corporate Defendants; however, the Second Circuit has made clear that\nthe Twombly plausibility standard, \"does not prevent a plaintiff from 'pleading facts alleged 'upon\ninformation and belief' where the facts are peculiarly within the possession and control of the\ndefendant,\" Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (citing Boykin v.\nKeyCorp, 521 F.3d 202, 215 (2d Cir.2008)). Corporate Defendants contend that the Corporate\nDefendants cannot reasonably prepare a response to Plaintiff's claims as a result of alleged group\npleading; however, they fail to identify that each was engaged in a similar role in this sex\ntrafficking enterprise.\ni. Plaintiff's \"negligent security\" claim against Nine East (Count III)\nshould not be dismissed.\nAs stated by Defendants, to sufficiently allege a negligent security cause of action in New\nYork, Plaintiff must allege facts establishing: 1) Nine East owed Plaintiff a duty, 2) Nine East\nbreached that duty, and 3) the breach caused injury to Plaintiff. Sofia v.\n\nI 7-cv- I 829, 2018\n\nU.S. Dist. Lexis 60947, at *10 (S.D.N.Y. Apr. 10, 2018) (quoting Pasternack v. Lab Corp. of Am.\nHoldings, 807 F.3d 14, 19 (2d Cir. 2015)). Plaintiff was recruited as part of a sex trafficking\nenterprise to provide a massage to Jeffrey Epstein at the mansion owned or controlled by\nDefendant Nine East. ¶ 50. \"Plaintiff observed the opulence of the mansion owned by Defendant,\nNine East, and the organization of Defendant, NES, Inc., which collectively facilitated her further\ncooperation with Jeffrey Epstein, culminating in New York Penal Law Section 130 crimes being\ncommitted against her by Jeffrey Epstein. ¶ 6\n... [truncated, 2159 chars — for the full page use /api/corpus/document/EFTA02846274/9 or ?id=EFTA02846274&page=9]", "char_count": 2159}, {"efta_number": "EFTA02846274", "page_number": 10, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 11 of 17\n\nincluding Plaintiff present. ¶ 91. As the property owner, Defendant Nine East had a non-delegable\nduty to maintain the premises in a reasonably safe condition.\nPursuant to basic New York law, the \"nondelegable duty exception, is applicable where\nthe party 'is under a d[o]uty to keep premises safe.\"' (Backiel v. Citibank, 299 A.D.2d 504, 505\n(quoting\n\nv. Equitable Life Assur. Socy. of U.S., 79 N.Y.2d at 668)); see also Brothers\n\nv. New York State Elec. & Gas Corp., II N.Y.3d 251, 257-258; Blatt v. L'Pogee, Inc., 112 A.D.3d\nat 869, 978 N.Y.S.2d 291). In such instances, the party \"is vicariously liable for the fault of [others]\nbecause a legal duty is imposed on it which cannot be delegated.\" Horowitz v. 763 Eastern\nAssociates, LLC, 125 A.D.3d 808 (2015)\n\nv. Equitable Life Assur. Socy. of U.S., 79\n\nN.Y.2d at 668)\nDefendant argues that the law does not impose a duty to control the conduct of third persons\nto prevent them from harming others. [DE 38] at 6. To the contrary, \"[a] possessor of land who\nholds it open to the public * * * is subject to liability to members of the public while they are upon\nthe land * * * for physical harm caused by the * * * intentionally harmful acts of third persons * *\nand by the failure of the possessor to exercise reasonable care to (a) discover that such acts are\nbeing done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid\nthe harm, or otherwise to protect them against it.\" Nallan v. Helmsley- Spear, Inc., 50 N.Y.2d\n507, 519; (Restatement, Torts 2d, s 344). The \"duty to take minimal protective measures arises\nwhen it can be shown that the possessor of the property \"either knows or has reason to know from\npast experience 'that there is a likelihood of conduct on the part of third persons * \"\n\nwhich is\n\nlikely to endanger the safety of the visitor.'\" Provenzano v. Roslyn Gardens Tenants Corp., 190\nA.D.2d 718 (1993) (citing Nallan,\n... [truncated, 2178 chars — for the full page use /api/corpus/document/EFTA02846274/10 or ?id=EFTA02846274&page=10]", "char_count": 2178}, {"efta_number": "EFTA02846274", "page_number": 11, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 12 of 17\n\nthere was a likelihood of conduct on the part of Jeffrey Epstein which was likely to endanger the\nsafety of Plaintiff along with numerous allegations regarding the prevalence of his conduct of\nwhich Defendant knew. ¶ 24-44; 90-92; 97-98. In fact, Plaintiff specifically alleges \"[d]efendant\nknew or should have known of Jeffrey Epstein's propensity for sexually abusing minor children,\nincluding regularly on the premises.\" ¶ 99; see also 100-101.\nCount III against Defendant Nine East should not be dismissed as Plaintiff has sufficiently\npled a cause of action for negligent security.\nii. Plaintiffs negligence claim against FTC (Count IV) should not be\ndismissed.\nA necessary element of a cause of action alleging negligent retention or negligent\nsupervision is that the \"employer knew or should have known of the employee's propensity for the\nconduct which caused the injury.\" Ronessa H. v. City of New York, 101 A.D.3d 947, 948 (2012)\n(citing Bumpus v. New York City Tr. Auth., 47 A.D.3d 653, 654). Plaintiff must also show the\nfollowing to allege negligent supervision: 1) the tortfeasor and the defendant were in an employeeemployer relationship, 2) the employer knew or should have known of the employee's propensity\nfor the conduct which caused the injury prior to the injury's occurrence, and 3) the tort was\ncommitted on the employer's premises or with the employer's chattles. Krystal G. v. Roman\nCatholic Diocese of Brooklyn, 34 Misc. 3d 531, 537 (Sup. Ct. 2011). Furthermore, an employer\nis required to answer in damages for the tort of an employee against a third party when the\nemployer has either hired or retained the employee with knowledge of the employee's propensity\nfor the sort of behavior which caused the injured party's harm. Kirkman by Kirkman v. Astoria\nGeneral Hosp., 204 A.D.2d 401 (1994) (citing Detone v. Bullit Courier Service, Inc., 140 A.D.2d\n278, 279, 528 N.Y.S.2d 575).\n\n8\n\nEFTA02846285\n\n", "char_count": 1998}, {"efta_number": "EFTA02846274", "page_number": 12, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 13 of 17\n\nDefendant Financial Trust Company employed Jeffrey Epstein. DE 3 at ¶ 106. As his\nemployer, the company had a duty to exercise reasonable care to refrain from retaining in its\nemploy a person with known dangerous propensities in a position that would present a foreseeable\nrisk of harm to others. Id. ¶ at 107. In fact, Plaintiff makes the following allegations, which clearly\nmeet the Twombly plausibility standard:\n•\n•\n\n•\n\n•\n\n•\n\n•\n\n•\n•\n•\n\n•\n\n•\n\nDefendant Financial Trust operated in part to satisfy the personal needs of Jeffrey Epstein,\nwhich included daily massages which Epstein requires to be sexual in nature.\nJeffrey Epstein's requirement that he receive regular massages from untrained young\nfemales caused Defendant and its employees to knowingly turn a blind eye to the dangerous\nsexual addictive propensities of Jeffrey Epstein, despite knowledge that he would cause\nharm to many young females including Plaintiff, in order to retain its most valuable\nemployee—Jeffrey Epstein.\nDefendant Financial Trust operated in part to further Jeffrey Epstein's goal to obtain,\nrecruit, and procure young females for the purposes of providing sexually explicit massages\nto Jeffrey Epstein.\nDuring the course and scope of his employment for Defendant, Jeffrey Epstein did fulfill\nthe corporate objective of receiving sexual massages procured for him by employees of\nDefendant.\nJeffrey Epstein was notorious for converting each massage into a sexually exploitive\nactivity in violation of New York Penal Law Section 130, a fact which was known or\nshould have been known in the exercise of reasonable care by Defendant.\nEven though Defendant, Financial Trust, knew of Jeffrey Epstein's propensity for the sort\nof behavior that caused Plaintiff's harm and Jeffrey Epstein's constant engagement in this\ntype of criminal behavior during the course and scope of his employment, Defendant\nretained Jeffrey Epstein and failed to properly \n... [truncated, 3144 chars — for the full page use /api/corpus/document/EFTA02846274/12 or ?id=EFTA02846274&page=12]", "char_count": 3144}, {"efta_number": "EFTA02846274", "page_number": 13, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\n•\n\n•\n\n•\n\n•\n•\n\nDocument 45\n\nFiled 12/18/19\n\nPage 14 of 17\n\nJeffrey Epstein engaged in this type of sexually abusive behavior on a daily basis to the\nextent that engaging in sexual massages became the most regular activity that he engaged\nin while in the course and scope of his employment.\nJeffrey Epstein's habitual routine of recruiting and engaging in sexually explicit massages\nbegan many years before the formation of Defendant and was not a lifestyle unknown to\nDefendant, Financial Trust.\nDefendant, Financial Trust, knew or in the exercise of reasonable care should have known\nthat Jeffrey Epstein was potentially dangerous, had engaged in a pattern of criminal sexual\nbehavior against young females, including minors, for years prior to the formation of\nDefendant Financial Trust, and that he was not going to cease committing criminal sexual\nacts.\nJeffrey Epstein was retained with knowledge of the propensity of this sort of behavior.\nDefendant, Financial Trust, retained Jeffrey Epstein with knowledge that he would in fact\ninjure others, such as Plaintiff, during the course and scope of his employment.\n\nId. at 11 108-123.\nAs is clear from the aforementioned assertions, Plaintiff makes many allegations to\nsubstantiate her claims against Defendant Financial Trust. Consequently, Count IV of Plaintiff's\nAmended Complaint should not be dismissed.\nIli. Plaintiffs negligence claim against NES (Count V) should not be\ndismissed.\nNext, Defendants argue that Plaintiff's claims against NES should be dismissed seemingly\nin whole because they are based \"upon information and belief.\" [DE 38] at 9. However, the\nSecond Circuit has made clear that the Twombly plausibility standard, \"does not prevent a plaintiff\nfrom `pleading facts alleged 'upon information and belief' where the facts are peculiarly within\nthe possession and control of the defendant,\" Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d\nCir. 2010) (citing Boykin v. KeyCorp, 521 F.3d 202, 215 (2\n... [truncated, 2343 chars — for the full page use /api/corpus/document/EFTA02846274/13 or ?id=EFTA02846274&page=13]", "char_count": 2343}, {"efta_number": "EFTA02846274", "page_number": 14, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 15 of 17\n\nthe plausibility of Defendant NES's misconduct is clearly established by (among others) these\nallegations:\n•\n•\n\n•\n•\n\n•\n\n•\n\n•\n\nUpon arrival to the mansion, the two minor children were escorted inside by an employee\nof Defendant NES, LLC and taken to Jeffrey Epstein's massage room. ¶ 52.\nPlaintiff observed the opulence of the mansion owned by Defendant, Nine East, and the\norganization ofDefendant, NES, Inc., which collectively facilitated her further cooperation\nwith Jeffrey Epstein, culminating in New York Penal Law Section 130 crimes being\ncommitted against her by Jeffrey Epstein. ¶ 63.\nIt is believed that each employee of Defendant, NES, operated at the direction of Jeffrey\nEpstein. ¶ 128.\nUpon information and belief, the primary responsibility of each employee of Defendant,\nNES, LLC (\"NES\") was to fulfill the needs or requests of Jeffrey Epstein; more\nparticularly, his daily massage schedule. ¶ 129.\nUpon information and belief, the employees of Defendant, NES, were compensated to\nprimarily, if not exclusively, procure or maintain each young female masseuse, or to assist,\nknowingly or unknowingly, in the concealment ofany misconduct committed against each\nmasseuse. 130.\nUpon information and belief, the employment responsibilities of the various employees of\nDefendant, NES, included but were not limited to: I) recruiting young females, including\nminor children such as Plaintiff, to provide massages, 2) creating Jeffrey Epstein's massage\nschedule, 3) maintaining Jeffrey Epstein's massage schedule, 4) escorting various young\nfemales into the massage room at the New York mansion owned by Defendant Nine East,\n5) maintaining contact with the various young females who were recruited to the New York\nmansion for the purposes of providing Jeffrey Epstein with a massage, 6) providing\ncompensation to each young masseuse upon the completion ofher engagement with Jeffrey\nEpstein, 7) providing meals and food \n... [truncated, 3160 chars — for the full page use /api/corpus/document/EFTA02846274/14 or ?id=EFTA02846274&page=14]", "char_count": 3160}, {"efta_number": "EFTA02846274", "page_number": 15, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\n•\n\n•\n\n•\n•\n\n•\n\nDocument 45\n\nFiled 12/18/19\n\nPage 16 of 17\n\nTo fulfill said duty, each employee was required to perform their assumed duty carefully\nwithout omitting to do what an ordinarily prudent person would do in accomplishing the\ntask. ¶ 133.\nThe young females being recruited to engage in massages for Jeffrey Epstein were\ninexperienced in the art of massage, a fact that was known or should have been known to\nDefendant NES and its employees in the exercise of reasonable care. 134.\nPlaintiff relied on Defendant NES's voluntary assumption ofa duty as well as the voluntary\nassumption of each individual employee to act with reasonable care towards her. ¶ 135.\nIn the exercise of reasonable care, Defendant and its employees further knew or should\nhave known of the dangerous propensities of Jeffrey Epstein and the proximate harm that\nwould be caused by his likely sexual misconduct and various violations ofNew York Penal\nLaw Section 130. ¶ 136.\nThe failure of Defendant NES and each of its respective employees to act in the same\nmanner as an ordinarily prudent person, placed Plaintiff in a more vulnerable position than\nif Defendant and its employees had not assumed the obligation to treat her with reasonable\ncare. ¶ 137.\nThis brief snapshot of the facts as alleged in the Amended Complaint undeniably states a\n\nclaim for relief that is \"plausible on its face.\" Therefore, Count V of Plaintiff's Amended\nComplaint should not be dismissed.\nD.\n\nPlaintiff's claims for punitive damages must be dismissed because they are\nprecluded by NY EPTL § 11-3.2.\n\nFinally, Defendant contends that punitive damages are not permitted against any Defendant\nin this action. It is Plaintiff's position that punitive damages are warranted against the Estate in\nthis case where the Estate is domiciled in the United States Virgin Islands as a result ofMr. Epstein\npurposefully availing himself to the jurisdiction. In terms of the corporate Defendants, each\ncorporation engaged in\n... [truncated, 2328 chars — for the full page use /api/corpus/document/EFTA02846274/15 or ?id=EFTA02846274&page=15]", "char_count": 2328}, {"efta_number": "EFTA02846274", "page_number": 16, "text_content": "Case 1:19-cv-07625-AJN-DCF\n\nDocument 45\n\nFiled 12/18/19\n\nPage 17 of 17\n\nPlaintiffbelieves that her current complaint amply sets forth a basis for proceeding without any\nfurther amendments. But, in any event, Plaintiff requests leave to Amend should the Court find any\nfatal deficiencies in her pleading. See Twahir v. Village Care of New York, Inc., 2011 WL 2893466,\n•1 (S.D.N.Y 2011) (\"Leave to amend should be freely granted when justice requires.\" ... \"[T]he\nstandard for determining futility is comparable to the standard for deciding a motion to dismiss under\nFed. R. Civ. P. 12(bX6).\")\nIII.\n\nCONCLUSION\nFor all the foregoing reasons, the Court should deny Defendants' Motion to Dismiss in its\n\nentirety.\n\nDated: December 18, 2019\nRespectfully Submitted,\nPOTTINGER, LLC\n\nBrittany N.\nStanley J. Pottinger\n425 N. Andrews Ave., Suite 2\nFort Lauderdale, FL 33301\n(954)-524-2820\nFax: (954)-524-2822\nEmail: brad@eplIc.com\nbrittanv@evllc.com\n\n13\n\nEFTA02846290\n\n", "char_count": 959}]}