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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
JANE DOE II 
Plaintiff, 
VS. 
CASE NO.: 09-80469-CIV-MARRA 
J 
) 
and 
) 
) 
Defendants. 
) 
PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION 
TO DEFENDANT EPSTEIN'S MOTION TO DISMISS 
Plaintiff, JANE DOE II, through counsel, opposes Defendant's RICHARD EPSTEIN's 
Motion to Dismiss. Defendant's argument for a dismissal is premised on the following: 1) 
Plaintiff is not permitted to file a claim under Florida law in a State of Florida court and then 
file a federal claim in a federal court; 2) the remedies amendment to 18 U.S.C.§2255 are 
not retroactive based on the dates Defendant EPSTEIN is alleged to have violated the 
statute; 3) 
damages under §2255 cannot be obtained on a per incident basis, but must 
be lumped together into a single recovery despite multiple violations occurring in temporally 
distinct time frames, and therefore being different incidents; 4) Plaintiff has failed to state a 
cause of action under §2255 because she has failed to "allege facts constituting a predicate 
act"; and 5) Plaintiff has failed to state a cause of action for conspiracy to violate §2255. 
I. 
LEGAL STANDARD 
Defendants motion to dismiss must be denied unless it appears beyond doubt that 
the plaintiff can prove no set of facts in support of her claims that would entitle her to relief. 
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under many circumstances.2
28 U.S.C. §1367, "supplemental jurisdiction," provides that: 
©) The district courts may decline to exercise supplemental jurisdiction over 
a claim under subsection (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. 
Courts routinely "are obligated to raise and decide issues of subject matter jurisdiction 
sua sponte any time it appears subject matter jurisdiction is absent." Carias v. Lenox 
Financial Mortgage Corporation, 2008 U.S. DIST. LEXIS 20345 *1 (N.D. Cal. March 5, 
2008). In Carias, after granting summary judgment on the sole federal claim, the Court 
remanded the State claims to state court, stating: "The Court declines to exercise pendent 
jurisdiction over the state law claims and remands the action to state court. The Court finds 
that the issues of economy, convenience, fairness and comity collectively weigh in favor of 
remand. See Harrell, 934 F.2d at 205. Comity weighs especially strong, given that the 
remaining claims are pure state law claims with no connection to federal law. Economy 
also weighs in favor of remand as state courts are better equipped to efficiently handle state 
2 
In United Mine Workers v. Gibbs 383 U.S. 715 (1966), a jury's verdict 
against a union based on State law claims was reversed, in part, because 
the federal 
law claim failed. The Court noted that: "It has consistently been recognized that 
pendent jurisdiction is a doctrine of discretion, not of plaintiffs right. Its justification lies 
in considerations of judicial economy, convenience and fairness to litigants; if these are 
not present a federal court should hesitate to exercise jurisdiction over state claims, 
even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U.S. 
64.Needless decisions of state law [by a federal court) should be avoided both as a 
matter of comity and to promote justice between the parties, by procuring for them a 
surer-footed reading of applicable law." 
3 
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inapplicable to this case. Only in "exceptional" circumstances, to promote conservation of 
judicial resources and comprehensive disposition of litigation, would a federal court be 
authorized to dismiss federal parallel' claims that are initiated in state court. Colorado River 
Water Conservation District v. United States, 424 U.S. 800 (1976). However, for the 
Colorado River doctrine to even apply, there must be clear Congressional direction that 
would preclude a federal court's "virtually unflagging obligation ...to exercise federal 
jurisdiction." it at 817. In that case, the Supreme Court found that clear Congressional 
direction from the McCarran Amendment, which the Court read to counsel against 
"piecemeal litigation" concerning issues of water rights in a river system, favored abstention 
Ids at 819. Even with this clear Congressional direction, if other factors had not favored 
abstention, it may not have been orderedids at 820. 
Defendant EPSTEIN does not offer any evidence of any Congressional direction that 
would direct this Court to abstain for claims under 18 U.S.C. §2255.4 Further, the Colorado 
River doctrine only applies when federal courts are presented with "difficult questions of state 
3The federal claims that are the subject matter of this action are not necessarily 
parallel, although the incidents that gave rise to both the federal and state claims arise 
from the same series of events. A Florida appellate court, for example, has refused to 
apply principles of res judicata to bar State discrimination claims after the plaintiff lost 
federal discrimination claims. Anduiar v. National Prope y & Casualty Underwriters 659 
So. 2d 1214 (Fla. 4th DCA 1995) (adverse judgment against plaintiff in federal court for 
federal discrimination claims did not bar subsequent action under state discrimination 
laws). Here, although some of the elements for some of the claims may be similar, they 
are sufficiently different that application of Anduiar would preclude res judicata. To 
determine whether a case is parallel, courts have looked to whether the same issues 
are being litigated. Calvert Fire Ins, Co. v. American Mut. Reins. Co., 600 F.2d 1228, 
1229, n. 1 (7th Cir. 1979); the issues in the State court and in this Court are not the 
same. 
'The Supreme Court said that Congressional direction is the "[m]ost important 
factor." id. at 819. 
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Colorado River doctrine has been applied to a federal claim under §2255. The cases cited 
by Defendant EPSTEIN do not support a decision by this Court to abstain over what is a 
purely federal claim. In American Bankers Ins. Co. v. First State Ins. Co., 891 F.2d 882 (11th
Cir. 1990), the District Court dismissed a purely state law claim for equitable subrogation 
because there had been an earlier claim for declaratory relief in State Court; the Eleventh 
Circuit reversed, concluding 
...that no exceptional circumstances require dismissal of this case in 
deference to the pending state court proceeding. If it were simply a question 
of judicial economy, this litigation probably should proceed in the New York 
court. A federal court cannot properly decline to exercise its statutory 
jurisdiction, however, simply because judicial economy might be served by 
deferring to a state court. Federal courts have a 'virtually unflagging 
obligation' to exercise the jurisdiction given them.' Colorado River, 424 U.S. 
at 816, 96 S. Ct. at 1246. The interest in preserving federal jurisdiction 
mandates that this action not be dismissed. 
891 F.2d at 886. 
Finally, Plaintiff has pled that Defendant EPSTEIN has made an agreement with the 
United States Attorney's Office to not contest the jurisdiction of this Court in exchange for 
a avoiding prosecution under federal law for solicitation of minors for prostitution. Complaint, 
¶15. Defendant EPSTEIN appears to be violating the agreement in contesting the jurisdiction 
of this Court; at a minimum, at this stage of the pleadings he should be estopped from 
contesting jurisdiction, since the allegations of ¶15 must be accepted as true .° 
Point 2. 
The retroactivity of the amendments to §2255 is not appropriately 
addressed in a motion to dismiss; but if the Court is so inclined to 
consider it, there are insufficient facts pled in the Complaint to 
render the 2006 amendments inapplicable to the case at bar. 
'Plaintiff acknowledges that Defendant EPSTEIN's agreement is between the 
United States and he; however, the Plaintiff and the other victims of his sexual 
predation may be considered third party beneficiaries to the agreement. 
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issue would be better addressed on a summary judgment motion, and again, has nothing 
to do with whether Plaintiff has pled a cause of action pursuant to Rule 12(b)(6), Fed. R. Civ. 
P. 
Plaintiff agrees with the general proposition that a new law that creates new 
substantive rights, absent Congressional direction to the contrary, does not have retroactive 
effect, but this is not a new law. §2255 was amended in 2006, to, inter alia, provide an 
enhanced minimum recovery for damages caused by sexual predators such as Defendant 
EPSTEIN. However, the change in the civil remedies available of a statute is a procedural, 
not a substantive change in the law, and procedural changes to a statute are routinely 
applied retroactively!' Where substantive changes in a law are made by Congress, a slim 
majority of the Supreme Court has declined retroactive application, even where the law was 
ostensibly enacted to overrule a Court precedent that had itself, in the view of Congress, 
overruled earlier Court precedents. Rivers v. Roadway Express, 511 U.S. 298, 308 (1994).9
°Defendant EPSTEIN also cites to United States v. Siegel, 153 F.3d 1256 (111' 
Cir. 1998), wherein, based on a defendant's inability to pay restitution mandated by a 
penal statute, the Court reversed a restitution order. An amendment to the statute 
removed from consideration the defendant's ability to pay restitution; the Court said 
such an amendment could not be applied retroactively because the provision amounted 
to a punishment under a penal statute, and would violate the ex post facto provision in 
the U. S. Constitution, This case is clearly distinguished our case: the statute here is a 
civil, not a penal remedy; the amendment to the statute modifies the minimal exposure 
of the Defendant, but does not, as in the Siegel case, dispense with a substantive 
defense to a restitution claim. United States v. Whiting 165 F.3d 631 (89' Cir. 1999), 
where a conviction for possession of child pornography was upheld, despite the fact 
that the conduct of the defendant was arguably not specifically proscribed by statute at 
the time the images were possessed; the Court held the legislative amendment was a 
mere clarification of the prior legislation and not an ex post facto law. 
9 Justice Scalia cited the statement of purpose of the Civil Rights Act of 1991, to 
hold that, for example, the amendments specifically designed to overrule Patterson v. 
McLean Credit Union 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363, should be 
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that the compensatory damages provisions smack of a "retributive" or other 
suspect legislative purpose. Section 102 reflects Congress' desire to afford 
victims of discrimination more complete redress for violations of rules 
established more than a generation ago in the Civil Rights Act of 1964. At 
least with respect to its compensatory damages provisions, then, § 102 is not 
in a category in which objections to retroactive application on grounds of 
fairness have their greatest force. 
Nonetheless, the new compensatory damages provision would operate 
"retrospectively" if it were applied to conduct occurring before November 21, 
1991. Unlike certain other forms of relief, compensatory damages are 
quintessentially backward looking. Compensatory damages may be intended 
less to sanction wrongdoers than to make victims whole, but they do so by a 
mechanism that affects the liabilities of defendants. They do not 
"compensate" by distributing funds from the public coffers, but by requiring 
particular employers to pay for harms they caused. The introduction of a right 
to compensatory damages is also the type of legal change that would have 
an impact on private parties' planning. In this case, the event to which the new 
damages provision relates is the discriminatory conduct of respondents' agent 
John Williams; if applied here, that provision would attach an important new 
legal burden to that conduct. The new damages remedy in § 102, we 
conclude, is the kind of provision that does not apply to events antedating its 
enactment in the absence of clear congressional intent. 
In cases like this one, in which prior law afforded no relief, § 102 can be 
seen as creating a new cause of action, and its impact on parties' rights 
Is especially pronounced. Section 102 confers a new right to monetary relief 
on persons like petitioner who were victims of a hostile work environment but 
were not constructively discharged, and the novel prospect of damages 
liability for their employers. Because Title VII previously authorized recovery 
of backpay in some cases, and because compensatory damages under § 
102(a) are in addition to any backpay recoverable, the new provision also 
resembles a statute increasing the amount of damages available under a 
preestablished cause of action. Even under that view, however, the provision 
would, if applied in cases arising before the Act's effective date, undoubtedly 
impose on employers found liable a "new disability" in respect to past events. 
See Society for Propagation of the Gospel, 22 F. Cas. at 767. The extent of 
a party's liability, in the civil context as well as the criminal, is an important 
legal consequence that cannot be ignored. Neither in Bradley itself, nor in 
any case before or since in which Congress had not clearly spoken, have we 
read a statute substantially increasing the monetary liability of a private party 
to apply to conduct occurring before the statute's enactment. See Winfree v. 
Northern Pacific R. Co., 227 U.S. 296, 301, 57 L. Ed. 518, 33 S. Ct. 273 
(1913) (statute creating new federal cause of action for wrongful death 
11 
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statutory enactments is simply not present here, and the record is devoid of any factual 
material that would support such a conclusion.10 As Justice Blackmun said in dissent in 
Landsgraf, there is no vested right to break the law." 
Bottom line is, a motion to dismiss a claim is not the correct procedural mechanism 
to determine the retroactivity of a statute. Landsgraf was decided after a trial on the merits 
of the claim, wherein the trial court determined that although the sexual harassment was 
serious, the employer, upon learning of it, had taken prompt remedial measures to correct 
it, and the plaintiff did not have sufficient cause to warrant quitting her job. Id. at 247-48. 
Rivers v. Roadway Express, 511 U.S. 298 (1994) was decided after a trial on the merits as 
well, wherein the Court dismissed the 1981 claims based on the holding in Patterson, supra 
and exonerated the Defendant on the Title VII claims in a bench trial. On appeal, the plaintiff 
sought relief under the 1991 Civil Rights Act amendments, which overruled Patterson. These 
1° Although outside the pleadings and not appropriate for consideration on a 
Motion to Dismiss, Defendant EPSTEIN has refused to answer any substantive 
questions in the only two (2) depositions he has given in all these cases, including in 
the State court case involving this Plaintiff. Accordingly, Plaintiff has not been able to 
ascertain whether Defendant EPSTEIN had settled expectations about the limits of his 
civil liability under §2255. 
11"At no time within the last generation has an employer had a vested right to 
engage in or to permit sexual harassment; 'there is no such thing as a vested right to do 
wrong.' Freeborn v. Smith, 69 U.S. 160, 2 Wall. 160, 175, 17 L. Ed. 922 (1865). See 
also 2 N. Singer, Sutherland on Statutory Construction § 41.04, p. 349 (4th rev. ed. 
1986) (procedural and remedial statutes that do not take away vested rights are 
presumed to apply to pending actions). Section 102 of the Act expands the remedies 
available for acts of intentional discrimination, but does not alter the scope of the 
employee's basic right to be free from discrimination or the employers corresponding 
legal duty. There is nothing unjust about holding an employer responsible for injuries 
caused by conduct that has been illegal for almost 30 years." Id. at 297. Similarly in this 
case, soliciting minors for acts of prostitution, has been unlawful and the civil remedy 
associated therewith has long preceded the acts in question. 
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minimum 'actual damages- , Id. at 1379, but there is no suggestion in this Opinion that the 
Plaintiff was so limited, no reference to whether Plaintiff sought the relief being sought here 
or that the events she complained of occurred on multiple occasions. In fact, it appears clear 
from the Opinion that the pro se Defendant that Plaintiff prevailed against by default was 
sued for a singular violation of recording the Plaintiff's sexually oriented performance at a 
Spring Break gathering. There is no indication that the conduct that was recorded by the 
defaulted Defendant occurred on multiple occasions, as here. 
Point 4. 
The Eleventh Circuit has foreclosed Defendant EPSTEIN's 
argument that for a violation of 18 U.S.C. 2422(b) to occur, he must 
travel in interstate commerce; moreover, he has waived his right 
to contest the jurisdiction of the Court according to the allegations 
of the Complaint. 
In United States v. Yost 479 F.3d 815 (11'" Cir. 2007), a defendant was convicted of 
two counts of attempting to induce persons he believed were minors (they were government 
agents posing as minors) to commit acts of prostitution under 18 U.S.C. §2422(b); he sought 
to void his convictions on appeal because he didn't get to the meeting place. The Court 
rejected the argument, holding: 
We are not convinced by Yost's argument that his failure to arrive at the 
meeting place precludes a finding of a substantial step. Although this is the 
first time we have been confronted with an attempt conviction under 18 U.S.C. 
§ 2422(b) where travel is not involved, two other circuits have examined the 
issue and determined travel is not necessary to sustain such a conviction. In 
United States v. Bailey, 228 F.3d 637, 639-40 (6th Cir. 2000), the Sixth Circuit 
affirmed a conviction under Section 2422(b) where the defendant sent e-mails 
proposing oral sex and attempted to set up meetings with minor females, 
albeit unsuccessfully. Similarly, in United States v. Thomas, 410 F.3d 1235, 
1246 (10th Cir. 2005), the Tenth Circuit affirmed a Section 2422(b) attempt 
conviction, despite a lack of evidence of travel. The Tenth Circuit stated: 
"Thomas crossed the line from 'harmless banter' to inducement the moment 
he began making arrangements to meet [the minor], notwithstanding the lack 
of evidence that he traveled to the supposed meeting place." Id. Viewing the 
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sexual services he paid the Plaintiff for. Defendant 
resides and is believed to have 
resided in New York at all times relevant to this suit, although she was present at Defendant 
EPSTEIN's home on some of the occasions when the Plaintiff appeared after being 
summoned there. However, since she used a cellular phone, that is clearly a facility of 
interstate commerce as contemplated by 18 U.S.C. 2422(b), which encompasses conduct 
where "any facility or means of interstate commerce" is used." The Eleventh Circuit has 
recognized that "[tlhe telephone system is clearly a 'facility of interstate . . . commerce.'" 
United States v. Covington, 2009 U.S. App. LEXIS 8263 (11' Cir. April 22, 2009). 
Defendant EPSTEIN is alleged in the Complaint to have waived the right to contest 
the jurisdiction of this Court for claims under §2255, he should therefore be estopped from 
asserting the failure to allege predicate acts, particularly when he has refused to answer any 
questions based on his claimed right against self incrimination. However, if the Court is of 
the view that these predicate facts must be alleged despite the agreement, then Plaintiff 
requests leave to do so. 
Point 5. 
Plaintiff has pled sufficient facts to establish a conspiracy to 
violate §2255. 
 
A civil conspiracy is an agreement by two or more persons, to do an unlawful act 
or a lawful act by unlawful means, the doing of an overt act in furtherance of the 
" "(b) Whoever, using the mail or any facility or means of interstate or 
foreign commerce, or within the special maritime and territorial jurisdiction of the 
United States knowingly persuades, induces, entices, or coerces any individual who has 
not attained the age of 18 years, to engage in prostitution or any sexual activity for 
which any person can be charged with a criminal offense, or attempts to do so, shall be 
fined under this title and imprisoned not less than 10 years or for life." (Emphasis 
added). 
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inappropriate for the Defendant to seek to limit his minimum statutory exposure on a Motion 
to Dismiss, where there is no factual record or legislative history to determine the retroactivity 
of an enhanced damages provision to a cause of action that existed at the time of the 
wrongful acts. §2255 claims permit a Plaintiff to assert multiple claims for multiple violations 
that occur in temporally distinct time frames, no differently than any claim, whether based 
on tort or statutory law, that encompasses multiple events that occur at different times. 
Defendant EPSTEIN has waived the right to contest the issue of whether his conduct 
impacted interstate commerce; but Plaintiff is prepared to allege, if the Court deems it 
necessary, how his employee and coconspirator, Defendant 
used an 
instrumentality of interstate commerce, her cell phone, to solicit the Plaintiff, then a minor, 
on behalf of Defendant EPSTEIN who solicited her sexual services for money. Finally, 
Plaintiff has pled all necessary elements to establish a civil conspiracy to violate §2255. For 
these reasons, Defendant EPSTEIN's Motion to Dismiss must be denied; however, if the 
Court determines otherwise, Plaintiff respectfully requests leave to amend. 
Respectfully submitted, 
BY: s/ Isidro M. Garcia 
ISIDRO M. GARCIA 
Florida Bar No. 437883 
GARCIA LAW FIRM, P.A. 
224 Datura Street, Suite 900 
West Palm Beach. FL 33401 
Telephone: 
Telecopier: 
e-mail: isidroqarcia@bellsouth.net 
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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
CASE NO.: 09-CIV- 80469 - MARRA/JOHNSON 
JANE DOE II, 
Plaintiff, 
v. 
JEFFREY EPSTEIN, 
Defendant. 
DEFENDANT EPSTEIN'S MOTION TO DISMISS PLAINTIFF'S 
COMPLAINT, AND SUPPORTING MEMORANDUM OF LAW 
Defendant, Jeffrey Epstein, (hereinafter "Epstein"), by and through his 
undersigned attorneys, moves to dismiss Plaintiff's Complaint for failure to state a cause 
of action, and for more definite statement. Rule 12(b)(6), (e), Fed.R.Civ.P. (2008); 
Local Gen. Rule 7.1 (S.D. Fla. 2008). In support of dismissal, Defendant states: 
At the outset, Defendant gives notice to the Court that issues pertaining to 18 
U.S.C. §2255 in this motion to dismiss are also raised in the case of 
v. Jeffrey 
Epstein, Case No. 08-CV-80811-MARRA/JOHNSON, in Defendant's Motion to Dismiss 
directed to Plaintiff 
's Amended Complaint, Plaintiff 
.'s Response, and 
Defendant's reply to 
.'s response (which has yet to be filed). 
In this action, Plaintiffs Complaint attempts to allege a cause of action pursuant 
to 18 U.S.C. §2255 - Civil Remedies for Personal Injuries. 
Significantly, Plaintiff 
previously a filed lawsuit on July 10, 2008, based on the same facts as alleged herein in 
the Fifteenth Judicial Circuit In and For Palm Beach County, State of Florida, Case No. 
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Jane Doe II v. Epstein, et al. 
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federal actions reveals that they are almost identical. Based on the same allegations, in 
the state action, Plaintiff attempts to assert claims based on state law for Sexual Battery 
(Count I) and Civil Conspiracy (Count II); in this action, Plaintiff Is attempting to assert a 
cause of action pursuant to 18 U.S.C. §2255, which applicable version provides — 
PART I--CRIMES 
CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN 
§ 2255. Civil remedy for personal Injuries 
(a) Any minor who is a victim of a violation of section 22411, 2242, 2243, 2251, 
2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title an who suffers personal 
Injury as a result of such violation may sue in any appropriate United States District 
Court and shall recover the actual damages such minor sustains and the cost of the 
suit, including a reasonable attorney's fee. Any minor as described in the preceding 
sentence shall be deemed to have sustained damages of no less than $50,000 In 
value. 
(b) Any action commenced under this section shall be barred unless the complaint is 
filed within six years after the right of action first accrues or in the case of a person 
under a legal disability, not later than three years after the disability. 
CREDIT(S) 
(Added Pub.L. 99-500, Title I, § 101(b) [Title VII, § 703(a)1, Oct. 18, 1986, 100 Stat. 
1783-75, and amended Pub.L. 99-591, Title I, § 101(b) [Title VII, § 703(a)], Oct. 30, 
1986, 100 Stat. 3341-75; Pub.L. 105-314, Title VI, § 605, Oct. 30, 1998, 112 Stat. 
2984.) 
(Emphasis added). 
Plaintiff is likely to argue that the jurisdiction of the federal court over §2255 claims 
is exclusive. However, unlike other Congressional enactments, there is no language In 
the statute which expressly states that jurisdiction of such cause of action lies 
exclusively with the federal courts. Furthermore, there is a presumption of concurrent 
jurisdiction of state courts. See generally, Yellow Freight System, Inc. v. Donnelly, 494 
U.S. 820, 823, 110 S.Ct. 1566, 1568-69 (1990). "Under our 'system of dual sovereignty, 
we have consistently held that state courts have inherent authority, and are thus 
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Jane Doe II v. Epstein, et al. 
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the principles articulated in Colorado River Water Conserv. Dist. v. United States, 424 
U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) and Moses H. Cone Memorial How. v. 
Mercury Constr. 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)." 
The six factors considered are (1) whether one of the courts has assumed 
jurisdiction over property; (2) the inconvenience of the federal forum; (3) the potential for 
piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether 
state or federal law will be applied; and (6) the adequacy of the state court to protect the 
parties' rights. 
"The test for determining when exceptional circumstances exist, 
therefore, involves the careful balancing of six factors. The weight to be given any one 
factor may vary greatly depending on the case; however, the balance is "heavily 
weighted" in favor of the federal court exercising jurisdiction. Id. at 16, 103 S.Ct. at 937." 
American Bankers Ins. Co. of Florida v. First State Ins. Co., 891 F.2d 882, 884 (11th 
Cir. 1990). The list of factors is neither exhaustive, nor is it a mechanical checklist. See 
AM.JUR. FED. COURTS, § 1114. 
In the instant case, the third, fourth, fifth, and sixth factors are implicated. 
Clearly, more than a "potential" for piecemeal litigation exists if Plaintiff were allowed to 
proceed in two separate forums alleging the identical facts against the identical parties. 
Discovery and rulings thereon would involve the same set of facts, yet could result in 
inconsistent and varying rulings thereon. Should the cases proceed separately to trial, 
factual findings and judgments rendered in one could be inconsistent with the other. 
Appeals would proceed separately and in a piecemeal fashion. The piecemeal effect 
would be both excessive and deleterious if these cases were to proceed in parallel 
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(quoted above). See endnote 1 hereto, Complaint ¶11, 13.1 It is an axiom of law that 
"retroactivity is not favored in the law." Bowen, 488 U.S., at 208, 109 S.Ct., at 471 
(1988). As eloquently stated in Landqraf v. USI Film Products, 114 S.Ct. 1483, 1497, 
511 U.S. 244, 265-66 (1994): 
... the presumption against retroactive legislation is deeply rooted in our 
jurisprudence, and embodies a legal doctrine centuries older than our Republic. 
Elementary considerations of fairness dictate that individuals should have an 
opportunity to know what the law is and to conform their conduct accordingly; settled 
expectations should not be lightly disrupted.fN18 For that reason, the "principle that the 
legal effect of conduct should ordinarily be assessed under the law that existed when 
the conduct took place has timeless and universal appeal? Kaiser, 494 U.S., at 855, 
110 S.Ct., at 1586 (SCALIA, J., concurring). In a free, dynamic society, creativity in 
both commercial and artistic endeavors is fostered by a rule of law that gives people 
confidence about the legal consequences of their actions. 
FN18. See General Motors Corp. v. RomeIn, 503 U.S. 181, 191, 112 S.Ct. 1105, 
1112, 117 L.Ed.2d 328 (1992) ("Retroactive legislation presents problems of 
unfairness that are more serious than those posed by prospective legislation, 
because it can deprive citizens of legitimate expectations and upset settled 
transactions"); [Further citations omitted]. 
It is therefore not surprising that the antiretroactivity principle finds expression in 
several provisions of our Constitution. The Ex Post Facto Clause flatly prohibits 
retroactive application of penal legislation.FN19 Article I, § 10, cl. 1, prohibits States from 
passing another type of retroactive legislation, laws "impairing the Obligation of 
Contracts! The Fifth Amendment's Takings Clause prevents the Legislature (and other 
government actors) from depriving private persons of vested property rights except for 
a "public use" and upon payment of lust compensation? The prohibitions on "Bills of 
Attainder in Art. I, §§ 9-10, prohibit legislatures from singling out disfavored persons 
and meting out summary punishment for past conduct. See, e.g., United States v. 
Brown, 381 U.S. 437, 456-462, 85 S.Ct. 1707, 1719-1722, 14 L.Ed.2d 484 (1965). The 
Due Process Clause also protects the interests in fair notice and repose that may be 
compromised by retroactive legislation; a Justification sufficient to validate a statute's 
prospective application under the Clause "may not suffice" to warrant its retroactive 
application. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17, 96 S.Ct. 2882, 2893, 
49 L.Ed.2d 752 (1976). 
FN19. Article I contains two Ex Post Facto Clauses, one directed to Congress (§ 9, 
cl. 3), the other to the States (§ 10, cl. 1). We have construed the Clauses as 
applicable only to penal legislation. See Calder v. Bull, 3 Dail. 386, 390-391, 1 L.Ed. 
648 (1798) (opinion of Chase, J.). 
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1998); and generally Calder v. Bull, 3 U.S. 386, 390, 1 L.Ed. 648, 1798 WL 587 
(Calder) (1798). 
The United States Constitution provides that "InIci Bill of Attainder or ex post 
facto Law shall be passed" by Congress. U.S. Const. art. I, § 9, cl. 3. A law 
violates the Ex Post Facto Clause if it " 'appli[es] to events occurring before its 
enactment ... [and] disadvantage[s] the offender affected by it' by altering the 
definition of criminal conduct or increasing the punishment for the crime." 14/rice 
v. Mathis 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (quoting Weaver 
v. Graham 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). 
U.S. v. Sieuel,153 F.3d 1256, 1259 (11th Cir. 1998). 
In improperly attempting to multiply the presumptive minimum actual damages 
amount, Plaintiffs Complaint alleges a time period "from about June, 2003 until on or 
about February, 2005." See endnote 1. In paragraph 14 of her Complaint, Plaintiff 
references the 2006 amended version of §2255 which raised the presumptive actual 
damages amount from $50,000 to $150,000; Plaintiff also improperly claims that she is 
entitled to "$150,000 for each violation, for a total range of damages between $1.5 
million dollars to $4.5 million dollars, jointly and severally, ... ." ¶14. 
§2255 is contained in Title 18 of the United States Codes - "Crimes and Criminal 
Procedure, Part I. Crimes, Chap. 110. Sexual Exploitation and Other Abuse of 
Children." 18 U.S.C. §2255 (2005), is entitled Civil remedy for personal injuries, and 
imposes a presumptive minimum of damages in the amount of $50,000, should Plaintiff 
prove any violation of the specified criminal statutes and that she suffered personal 
injury with actual damages sustained. 
Thus, the effect of the 2006 amendments, 
effective July 27, 2006, would be to triple the amount of the statutory minimum 
previously in effect during the time of the alleged acts. If one were to take Plaintiff's 
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penalty or punishment, "Title II — Punishing Sexual Predators," Sec. 206, from House 
Report No. 105-557, 5-6, specifically includes reference to the remedy created under 
§2255 as an additional means of punishing sexual predators, along with other penalties 
and punishments. Senatorial Comments in amending §2255 in 2006 confirm that the 
creation of the presumptive minimum damage amount is meant as an additional penalty 
against those who sexually exploit or abuse children. 2006 WL 2034118, 152 Cong. 
Rec. S8012-02. Senator Kerry refers to the statutorily imposed damage amount as 
"penalties." Id. 
The cases of U.S. v. Siegel, supra (11th Cir. 1998), and U.S. v. Edwards, supra 
(3d Cir. 1998), also support Defendant's position that application of the current version 
of 18 U.S.C. §2255 would be in clear violation of the Ex Post Facto Clause. In Siegel,
the Eleventh Circuit found that the Ex Post Facto Clause barred application of the 
Mandatory Victim Restitution Act of 1996 (MVRA) to the defendant whose criminal 
conduct occurred before the effective date of the statute, 18 U.S.C. §3664(f)(1)(A), even 
though the guilty plea and sentencing proceeding occurred after the effective date of the 
statute. On July 19, 1996, the defendant Siegel pleaded guilty to various charges under 
18 U.S.C. §371 and §1956(a)(1)(A), (conspiracy to commit mail and wire fraud, bank 
fraud, and laundering of money instruments; and money laundering). 
He was 
sentenced on March 7, 1997. As part of his sentence, Siegel was ordered to pay 
$1,207,000.00 in restitution under the MVRA which became effective on April 24, 1996. 
Pub.L. No. 104-132, 110 Stat. 1214, 1229-1236. The 1996 amendments to MVRA 
required that the district court must order restitution in the full amount of the victim's loss 
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Clause." Id, at 1259. In determining that the application of the 1996 MVRA would 
indeed run afoul of the Constitution's Ex Post Facto Clause, the Court agreed with the 
majority of the Circuits that restitution under the 1996 MVRA was an increased penalty.2
"The effect of the MVRA can be detrimental to a defendant. Previously, after 
considering the defendant's financial condition, the court had the discretion to order 
restitution in an amount less than the loss sustained by the victim. Under the MVRA, 
however, the court must order restitution to each victim in the full amount." Id, at 1260. 
See also U.S. v. Edwards, 162 F.2d 87 (3rtl Circuit 1998). 
In the instant case, in answering the first question, it is clear that that imposition of 
a minimum amount of damages, regardless of the amount of actual damages suffered 
by a minor victim, is meant to be a penalty or punishment. See statutory text and 
House Bill Reports, cited above herein, consistently referring to the presumptive 
minimum damages amount under §2255 as "punishment" or "penalties." According to 
the Ex Post Facto doctrine, although §2255 is labeled a "civil remedy," such label is not 
dispositive; "if the effect of the statute is to impose punishment that is criminal in nature, 
the ex post facto clause is implicated." See generally, Roman Catholic Bishop of 
Oakland v. Superior Court, 28 Cal.Rptr.3d 355, at 360, citing Kansas v. Hendricks 521 
U.S. 346, 360-61 (1997). The effect of applying the 2006 version of §2255 would be to 
triple the amount of the presumptive minimum damages to a minor who proves the 
2 The Eleventh Circuit, in holding that "the MVRA cannot be applied to a person whose criminal 
conduct occurred prior to April 24, 1996," was "persuaded by the majority of districts on this 
Issue." "Restitution is a criminal penalty carrying with it characteristics of criminal punishment." 
Siegel slit 
1260. The Eleventh Circuit is in agreement with the Second, Third, Eighth, 
Ninth, and 
. Circuits. See U.S. v, Futrell, 209 F.3d 1286, 1289-90 (11th Cir. 2000). 
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application. As noted, 18 U.S.C. §2255 is entitled "Civil remedy for personal Injuries." 
Notwithstanding this label, the statute was enacted as part of the criminal statutory 
scheme to punish those who sexually exploit and abuse minors. 
Regardless of the 
actual damages suffered or proven by a minor, as long as a minor proves violation of a 
specified statutory criminal act under §2255 and personal injury, the defendant is held 
liable for the statutory Imposed minimum. 
As explained by the Landqraf court, supra at 280, and at 1505,3
When a case implicates a federal statute enacted after the events In suit, the court's 
first task is to determine whether Congress has expressly prescribed the statute's 
proper reach. If Congress has done so, of course, there is no need to resort to judicial 
default rules. When, however, the statute contains no such express command, the 
court must determine whether the new statute would have retroactive effect, i.e., 
whether it would impair rights a party possessed when he acted, Increase a party's 
liability for past conduct, or impose new duties with respect to transactions already 
completed. If the statute would operate retroactively, our traditional presumption 
teaches that It does not govern absent clear congressional intent favoring such a 
result. 
Here, there is no clear expression of intent regarding the 2006 Act's application to 
conduct occurring well before its enactment. Clearly, however, as discussed in part B 
herein, the presumptive minimum amount of damages of $150,000 was enacted as an 
punishment or penalty upon those who sexually exploit and abuse minors. 
See 
discussion of House Bill Reports and Congressional background above herein. The 
amount triples the previous amount for which a defendant might be found liable, 
regardless of the amount of actual damages a plaintiff has suffered and proven. The new 
3 In Landoraf, the United States Supreme Court affirmed the judgment of the Court of Appeals 
and refused to apply new provisions of the Civil Rights Act of 1991 to conduct occurring before 
the effective date of the Act. The Court determined that statutory text in question, §102, was 
subject to the presumption against statutory retroactivity. 
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allegations must be enough to raise a right to relief above the speculative level ... on the 
assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. 
On a motion to dismiss, the well pleaded allegations of plaintiffs complaint are taken as 
true and construed in the light most favorable to the plaintiff. M.T.V. v. DeKalb County 
Sch. Dist., 446 F.3d 1153, 1156 (11th Cir.2006). 
In discussing Twombly the Eleventh Circuit in Watts v. Fla. International Univ., 
495 F.3d 1289, 1295 (111h Cir. 2007), noted - "The Supreme Court's most recent 
formulation of the pleading specificity standard is that 'stating such a claim requires a 
complaint with enough factual matter (taken as true) to suggest' the required element." 
In order to sufficiently allege the claim, the complaint is required to identify "facts that 
are suggestive enough to render [the element] plausible." Watts, 495 F.3d at 1296 
(quoting Twomblv, 127 S.Ct. at 1965). 
Pursuant to Rule 12(e), a party may move for more definite statement of a 
pleading to which a responsive pleading is allowed where the pleading "is so vague or 
ambiguous that the party cannot reasonably frame a response." The motion is required 
to point out the defects and the desired details. Id. As to the general rules and form of 
pleading, Rules 8 and 10, a claim for relief must contain "a short plain statement of the 
claim showing that the pleader is entitled to relief;" Rule 8(a)(3); and may contain 
alternative claims within a count or as many separate claims. Rule 10(d)(2) and (3). 
A. 18 U.S.C. §2255(a) does not allow the Plaintiff to multiple the presumptive 
minimum damages amount on a per incident or per violation basis. 
In attempting to allege a §2255 claim, Plaintiff alleges that she is entitled to a 
multiplication of the presumptive minimum damages amount based on the number of 
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Martinez v. White, 492 F.Supp.2d 1186, 1188 (N.D. Cal. 2007), (emphasis added). 18 
U.S.C.A. §2255 "merely provides a cause of action for damages in 'any appropriate 
United States District Court." Id, at 1189. In Tilton v. Playboy Entertainment Group, 
Inc 554 F.3d 1371 (11th Cir. Jan. 15, 2009), the District Court granted plaintiff "the 
minimum 'actual damages' prescribed by §2255(a)," wherein plaintiff alleged that 
defendants had violated three of the statutory predicate acts; there was no multiplying of 
the award. 
It is well settled that in interpreting a statute, the court's inquiry begins with the 
plain and unambiguous language of the statutory text. CBS, Inc. v. Prime Time 24 
Venture, 245 F.3d 1217 (111h Cir. 2001)• U.S. v. Castroneves, 2009 WL 528251, *3 
(S.D. Fla. 2009), citing Reeves v. Astrue, 526 F.3d 732, 734 (11th Cir. 2008); and Smith 
v. Husband, 376 F.Supp.2d at 610 ("When interpreting a statute, [a court's] inquiry 
begins with the text."). "The Court must first look to the plain meaning of the words, and 
scrutinize the statute's 'language, structure, and purpose." Id. In addition, in construing 
a statute, a court is to presume that the legislature said what it means and means what 
it said, and not add language or give some absurd or strained interpretation. As stated 
in CBS. Inc supra at 1228 — "Those who ask courts to give effect to perceived 
legislative intent by interpreting statutory language contrary to its plain and 
unambiguous meaning are in effect asking courts to alter that language, and '[c]ourts 
have no authority to alter statutory language.... We cannot add to the terms of [the] 
provision what Congress left out.' Merritt, 120 F.3d at 1187.° See also Dodd v. U.S., 
125 S.Ct. 2478 (2005); 73 Am.Jur.2d Statutes §124. 
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