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The US Department Of Justice Motion To Dismiss The Epstein Survivor Lawsuit (Part 2) (11/4/26) · The Moscow Murders and More

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  Speaker 1: What's up everyone and welcome to another episode of the
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  Speaker 1: Epstein Chronicles. In this episode we're going to pick up
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  Speaker 1: with the United States government and their motion to dismiss
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  Speaker 1: the lawsuit filed by the Epstein survivors. C. Causation. Plaintiffs
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  Speaker 1: fully ignore the defendant's argument that plaintiff's causation theory runs
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  Speaker 1: contrary to the constitutionally vested discretion of charging decisions within
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  Speaker 1: the Department of Justice. Rather, plaintiffs attempt to sidestep the
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  Speaker 1: issue by stating that the court has already decided the
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  Speaker 1: question and it should not be raised at the MTD stage. However,
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  Speaker 1: by failing to substantively respond to the defendant's causation argument
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  Speaker 1: that the only way to prevent harm to future victims
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  Speaker 1: was for prosecutors to charge Epstein with criminal offenses to
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  Speaker 1: get him off the streets, plaintiffs have waived or abandoned
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  Speaker 1: all of their potential counter-arguments. Jones v. Bank of America,
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  Speaker 1: 11th Circuit, 2014. When a party fails to respond to
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  Speaker 1: an argument or otherwise address a claim, the court deems
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  Speaker 1: such argument or claim abandoned. Citing Hudson v. Norfolk, 2001.
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  Speaker 1: Katzoff v. NCL, Bahamas. Southern District of Florida, July 14, 2021.
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  Speaker 1: Finding plaintiff's arguments about expert opinions to be abandoned and
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  Speaker 1: deeming those opinions inadmissible. Carter v. BPCL Management, Florida 14th, 2021.
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  Speaker 1: Plaintiff's refusal to refute any arguments in defendant Dalbert motion
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  Speaker 1: operates as a waiver for those arguments and is akin
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  Speaker 1: to a failure to respond. As the government argued in
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  Speaker 1: defendant's motion and plaintiffs failed to rebut in their response,
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  Speaker 1: the plaintiff's entire causation allegation is premised on the constitutionally
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  Speaker 1: vested discretion of the Department of Justice to charge Epstein
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  Speaker 1: with criminal offenses, in order to get him off the streets,
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  Speaker 1: and thus this case cannot continue. The 11th Circuit has
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  Speaker 1: already determined that decision not to charge Epstein was within
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  Speaker 1: the constitutionally vested discretion of the U.S. Attorney's Office. D.
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  Speaker 1: Undertaking Doctrine In Plaintiff's FAC and their response, plaintiffs attempt
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  Speaker 1: to hold the FBI accountable as a private person, yet
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  Speaker 1: at the same time, allege that the FBI undertook law
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  Speaker 1: enforcement services to protect the American people, and therefore owed
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  Speaker 1: a duty to plaintiffs. DE 115 at page 12. Plaintiffs
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  Speaker 1: cannot have it both ways. The plaintiffs cannot allege the
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  Speaker 1: FBI owes them the same duty to the plaintiffs as
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  Speaker 1: a private person would. If the only reason that alleged
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  Speaker 1: duty exists is because the FBI is an investigative agency
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  Speaker 1: of the government, it's illogical. Further, plaintiffs argue that had
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  Speaker 1: the FBI appropriately responded to complaints... and investigated tips, plaintiff
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  Speaker 1: would not have been raped, molested, trafficked, and abused. However,
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  Speaker 1: the government points out in the defendant's motion, it is
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  Speaker 1: the prosecutor's discretionary decision whether or not to bring charges
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  Speaker 1: that can potentially get a criminal off of the streets,
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  Speaker 1: not the FBI's. More importantly, plaintiffs have still failed to
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  Speaker 1: allege a duty that meets the requirement of Rule 8.
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  Speaker 1: Plaintiffs state that their case is identical to Marjory Stoneman
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  Speaker 1: Douglas's but such statements, apart from being sheer hyperbole, are misguided.
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  Speaker 1: In Marjory Stoneman Douglas, the court found the FBI violated
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  Speaker 1: its duty by failing to do the most basic task,
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  Speaker 1: providing a tip to the local FBI field office for evaluation,
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  Speaker 1: after assuring the caller that the information would be provided
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  Speaker 1: to the correct people. Judge Dimitrialis never found that the
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  Speaker 1: FBI was negligent for failing to investigate, rather the negligence
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  Speaker 1: and Marjory Stoneman Douglas stem solely from the public access line,
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  Speaker 1: failure to provide information to the FBI agents for assessment
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  Speaker 1: at the local field office. This is especially true given
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  Speaker 1: that the PAL voluntarily undertook to serve as a central
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  Speaker 1: repository and conduit for information, and to handle and relay
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  Speaker 1: that information to the agency's agents and analysts. No such
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  Speaker 1: allegation or failure exists here, The callers identified by the
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  Speaker 1: plaintiffs spoke directly to FBI agents, not an employee of PAO.
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  Speaker 1: The FBI agents then were able to make a decision
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  Speaker 1: whether to pursue the information provided or not, as is
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  Speaker 1: the FBI's discretionary decision under the FBI's non-mandatory investigative policies.
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  Speaker 1: And importantly, there was never an undertaking to protect third
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  Speaker 1: persons similar to that of Marjory Stoneman Douglas. Additionally, while
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  Speaker 1: plaintiffs may not need to show reasonable reliance, they must
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  Speaker 1: still plead a reliance claim that's plausible. Determining whether a
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  Speaker 1: complaint states a plausible claim for relief will be a
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  Speaker 1: context-specific task that requires the reviewing court to draw on
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  Speaker 1: its judicial experience and common sense. Here, it's not plausible
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  Speaker 1: that callers relied on the FBI years after their calls
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  Speaker 1: were placed and after being hung up on or not
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  Speaker 1: actually ever speaking with anyone from the FBI with absolutely
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  Speaker 1: zero follow-up. The reliance by the caller in Marjory Stoneman
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  Speaker 1: Douglas lasted about a month. The alleged reliance alleged here
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  Speaker 1: spans over two decades. Using the court's common sense, reliance
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  Speaker 1: over the course of two decades cannot be deemed plausible. E.
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  Speaker 1: Zone of Risk Doctrine Again, plaintiffs attempt to plead a
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  Speaker 1: duty by the FBI for the sole fact that the
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  Speaker 1: FBI is an investigative agency of the government. However, the
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  Speaker 1: plaintiffs have to plead, a duty under Rule 8, that
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  Speaker 1: the FBI would be liable as a private person. The
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  Speaker 1: mere fact that the FBI can investigate does not create
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  Speaker 1: a duty. As discussed in defendant's motion, Marjory Stoneman Douglas,
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  Speaker 1: while starkly different in the level of detail at the
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  Speaker 1: pleading stage and time periods, its closest comparison to the
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  Speaker 1: facts of this case and a comparison with Marjory Stoneman
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  Speaker 1: Douglas makes clear that no duty was properly pled here.
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  Speaker 1: Unlike Marjory Stoneman Douglas, where the court found that a
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  Speaker 1: foreseeable zone of risk was created when the FBI created
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  Speaker 1: and operated the PAL, thus limiting callers to speaking to
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  Speaker 1: an employee in West Virginia as opposed to an FBI
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  Speaker 1: agent at a field office. The FBI did nothing in
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  Speaker 1: this case to create such a zone of risk. Further,
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  Speaker 1: the plaintiffs have not alleged anything other than the conclusory
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  Speaker 1: allegation of failure to investigate, which does not meet the
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  Speaker 1: pleading requirement of Rule 8, to plausibly allege a duty
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  Speaker 1: under the zone of risk doctrine. Notably, plaintiffs in their
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  Speaker 1: response point to the closing of the FBI's investigation. However,
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  Speaker 1: the closing of the investigation was a result of the U.S.
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  Speaker 1: Attorney's Office decision to enter into a non-prosecution agreement with Epstein,
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  Speaker 1: a constitutionally vested discretionary decision, not an independent decision of
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  Speaker 1: the FBI. Thus, reliance on the allegation is unfounded. Plaintiffs'
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  Speaker 1: reliance on the Stevens case is also misguided. In Stevens,
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  Speaker 1: the court found a duty under the foreseeable zone of
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  Speaker 1: risk doctrine because the government had failed to secure proper
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  Speaker 1: safety procedures for the shipping and handling of anthrax. And
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  Speaker 1: as a result, the anthrax was intercepted and ended with
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  Speaker 1: the person's death. The fact in Stevens are starkly different
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  Speaker 1: from the facts of this case. In Stevens, the United
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  Speaker 1: States had knowledge of missing anthrax and despite that knowledge,
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  Speaker 1: failed to implement security measures for the handling and shipping
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  Speaker 1: of materials. In contrast, the plaintiffs in this case simply
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  Speaker 1: allege the FBI made the decision not to investigate their claims. However,
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  Speaker 1: as the defendant has already pointed out, when the government
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  Speaker 1: is still in the process of investigating and deciding whether
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  Speaker 1: to prosecute, its authority and discretion are understood to be exclusive. Therefore,
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  Speaker 1: the decision of the FBI agents not to pursue a
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  Speaker 1: tip is within the FBI's discretion and does not create
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  Speaker 1: a duty to investigate further. And even if the FBI
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  Speaker 1: had a duty to investigate, Such investigation occurred, which culminated
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  Speaker 1: in an 82-page prosecution memo and a 53-page draft indictment. Plainly,
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  Speaker 1: the plaintiffs have not plausibly alleged a duty under the
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  Speaker 1: zone of risk doctrine, and this claim should be dismissed. 2.
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  Speaker 1: Jurisdictional defenses cannot be waived. Plaintiffs argue that the government
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  Speaker 1: is precluded from asserting a some certain defense, as it
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  Speaker 1: did not do so in the previous briefing. However, plaintiffs
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  Speaker 1: misconstrue the federal rules of civil procedure and 11th Circuit precedent.
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  Speaker 1: While Rule 12G2 precludes certain defenses from being raised after
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  Speaker 1: the first Rule 12 motion, Rule 12H3 makes clear that
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  Speaker 1: subject matter jurisdiction defenses can be raised and considered by
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  Speaker 1: the court at any time. That are Civ P12, and
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  Speaker 1: in fact the court, has an independent duty regardless of
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  Speaker 1: any arguments raised by the parties to assure itself of
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  Speaker 1: its own jurisdiction to hear the case. It's clear from
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  Speaker 1: the 11th Circuit precedent that the some certain requirement under
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  Speaker 1: the FTCA is a jurisdictional one. The presentation requirement is
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  Speaker 1: meant to give agencies an opportunity to settle suits before
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  Speaker 1: litigation commences, which in turn can ease court congestion and
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  Speaker 1: avoid unnecessary litigation, while making it possible for the government
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  Speaker 1: to expedite the fair settlement of tort claims asserted against
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  Speaker 1: the United States. Further, although it's true that the 11th
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  Speaker 1: Circuit has stated that it takes a somewhat lenient approach
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  Speaker 1: to the some certain requirement, we have held that the
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  Speaker 1: FTCA requires at a minimum the claimant expressly claim a
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  Speaker 1: some certain or provide documentation which will allow the agency
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  Speaker 1: to calculate or estimate the damages to the claimant. Here
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  Speaker 1: a plaintiff submitted only SF-95 forms. without any supporting documentation
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  Speaker 1: that would provide the government the ability to calculate or
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  Speaker 1: estimate the damage to the claimant. Without a sum certain
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  Speaker 1: expressly included on the administrative claim or supporting documentation included
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  Speaker 1: to help the government calculate the damages, the sum certain
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  Speaker 1: requirement has not been met. and the claims are jurisdictionally
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  Speaker 1: barred from proceeding. Thus, in multiple claimant actions under FTCA,
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  Speaker 1: each claimant must individually satisfy the jurisdictional prerequisite of filing
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  Speaker 1: a proper claim. Because Jane Doe's 13, 21, and 29
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  Speaker 1: fail to present as uncertain, this court lacks subject matter
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  Speaker 1: jurisdiction over their claims and they must be dismissed. Conclusion
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  Speaker 1: The defendant respectfully requests that the court dismiss the case
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  Speaker 1: in its entirety and without further leave to amend, as
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  Speaker 1: further amendments would be futile. Plaintiffs that continuously fail to
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  Speaker 1: meet the pleading requirement of Rule 8, fail to properly
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  Speaker 1: assert subject matter jurisdiction, and fail to state a claim
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  Speaker 1: upon which relief can be granted. As such, dismissal is warranted.
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  Speaker 1: Request for Hearing Pursuant to Local Rule 7.1b, defendant respectfully
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  Speaker 1: reasserts and requests for a hearing on its motion to dismiss.
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  Speaker 1: The defendant believes the hearing is would help clarify the
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  Speaker 1: issues and give the court the opportunity to ask any
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  Speaker 1: questions necessary for resolution of the defendant's motion. The defendant
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  Speaker 1: anticipates one hour would be needed for such a hearing.
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  Speaker 1: This was signed by Jason Redding Canones. All the information
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  Speaker 1: that goes with this episode can be found in the
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  Speaker 1: description box.