UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80119-MARRA/JOHNSON JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ Related Cases: 08-80232, 08-80380, 08-80381, 08-80994, 08-80993, 08-80811, 08-80893, 09-80469, 09-80591, 09-80656, 09-80802, 09-81092, ____________________________________/ PLAINTIFFS JANE DOE NOS. 2-8’ MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO STRIKE APPEAL OF MAGISTRATE JUDGE’S ORDER AS UNTIMELY, RESPONSE TO ORDER TO SHOW CAUSE, AND REQUEST FOR SANCTIONS PURSUANT TO 28 U.S.C. §1927 Plaintiffs, Jane Does No. 2-8 (“Plaintiffs”), by and through undersigned counsel, hereby file this Memorandum in Opposition to Defendant’s Motion to Strike Appeal of Magistrate Judge’s Order as Untimely, Response to Order to Show Cause, and Request for Sanctions Pursuant to 28 U.S.C. § 1927, and state as follows: I. Introduction and Summary Plaintiffs filed their appeal of the Magistrate Judge’s Order (DE 293) on September 24, 2009. Defendant Jeffrey Epstein (“Epstein”) incorrectly contends that this appeal was untimely filed based on two flawed assertions, one of fact and one of law: Incorrect Fact. Defendant asserts that the Magistrate Judge’s Order was entered on September 9, 2009. According to Defendant, Plaintiffs failed to file Case 9:08-cv-80119-KAM Document 340 Entered on FLSD Docket 10/06/2009

Page 1 of 10 2 their Local Mag. R. 4 appeal within ten (10) days, as required by that Rule, because the September 24, 2009 filing of the appeal was 11 business days (excluding Saturdays and Sundays), and 15 calendar days, after entry of the Order. Incorrect Law. According to Defendant, the calculation of the ten day period for appeal provided by Local Mag. R. 4 includes Saturdays and Sundays. The Plaintiffs’ appeal of the Magistrate Judge’s Order becomes untimely by including those days in the calculation of time. Both of these assertions are plainly and obviously wrong. Plaintiffs’ appeal of the Magistrate’s Order was timely for the following reasons: Correct Fact. The Magistrate’s Order may have been signed on September 9, 2009, but it was undeniably entered and served on September 10, 2009. Correct Law. In calculating the ten day period for appeal, Saturdays and Sundays are excluded. The date the appeal was filed, September 24, 2009, is the tenth day after the Magistrates Judge’s Order was entered and served. Local Mag. R. 4 expressly provides that an appeal shall be filed “within ten days of being served with the Magistrate Judge’s Order. . . .”1 Defendant’s assertion that the Plaintiffs’ appeal is untimely filed is, therefore, patently frivolous. Epstein’s counsel must know that the Magistrate’s Order was entered (Emphasis supplied). Rule 6(a) of the Federal Rules of Civil Procedure states, plainly and clearly, that in computing the time period under any local rule, intermediate Saturdays, Sunday and legal holidays are excluded when the prescribed period is less than 11 days, as it is here. 1 This language mirrors that of 28 U.S.C. §636(b)(1)(c), which provides that a party shall have ten days after service of a magistrate’s order to file objections. Case 9:08-cv-80119-KAM Document 340 Entered on FLSD Docket 10/06/2009

Page 2 of 10 3 and served on September 10, 2009. Epstein’s counsel would have received from the Court an email of the Order on that date. Printed on top of page one of the copy of the Order served on counsel is “Document 293 . . . Entered on FLSD Docket 09/10/2009”.2 Yet, inexplicably, Epstein’s counsel states in his Motion to Strike, “[o]n September 9, 2009, the Magistrate Judge entered her Order on Defendant’s Motion/Appeal and Supplemental Brief (DE 292).”3 2 A copy of the email received from the Court by Plaintiffs’ counsel, attached hereto as Exhibit “A”, plainly shows that the Magistrate’s Order was entered and served on September 10, 2009. 3 Defendant incorrectly identifies the docket entry no. as 292. The Magistrate’s Order is in fact docket entry no. 293. (Motion to Strike (DE 334), ¶ 2). Epstein’s counsel, in his Motion to Strike, compounds the error of his misstatement of fact by egregiously misstating the law. The Motion to Strike incorrectly asserts that weekends and holidays are included in the ten day calculation, never once even mentioning the contrary provision of Fed.R.Civ.P. 6(a). A practitioner in federal court should know that Fed.R.Civ.P. 6 is the first place to look in calculating a time period provided under the rules of court. As discussed below, Epstein’s Motion to Strike is unreasonable and vexatious, and has unnecessarily multiplied the proceedings in this action. Sanctions pursuant to 28 U.S.C. §1927 are therefore warranted against Epstein and his counsel. Case 9:08-cv-80119-KAM Document 340 Entered on FLSD Docket 10/06/2009

Page 3 of 10 4 Discussion I. PLAINTIFFS’ APPEAL OF THE MAGISTRATE JUDGE’S ORDER IS TIMELY Local Mag. J. R. 4 provides in relevant part as follows: Any party may appeal from a Magistrate Judge’s order determining a motion or matter under subsection 1(c) of these rules, supra, within ten days after being served with the Magistrate Judge’s order, unless a different time is prescribed by the Magistrate Judge or District Judge. (Emphasis supplied). This ten day time period after service must be read in conjunction with Fed.R.Civ.P. 6(a) in computing the time for appeal: The following rules apply in computing any time period specified in these rules or in any local rule, court order, or statute: . . . (2) Exclusions from Brief Periods. Exclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days. As discussed above, there should be no dispute that the Magistrate Judge’s Order was served on September 10, 2009. Calculating ten days from that date, excluding Saturdays, Sundays and legal holidays, the due date was September 24, 2009. By filing on that date, Plaintiffs’ appeal is timely.4 4 Nothing in Epstein’s Motion to Strike indicates a reasonable argument to the contrary. Defendant notes that S.D.Fla.L.R. 7.1 does not apply to action in response to court orders. Plaintiffs, however, do not rely on Local Rule 7.1. Rather, Plaintiffs rely on Fed.R.Civ.P. 6(a), which extends well beyond motions to encompass any time period for a party to act under local rule, court order or statute. Epstein’s Motion fails to discuss or even mention Rule 6(a). The only case authority cited by Defendant is an unpublished opinion, Cornelius v. Home Comings Financial Network, Inc., 293 Fed. Appx. 723, 2008 WL 4230197 (11th Cir. 2008). In Cornelius, the Court did not address the issue of the calculation of the ten day appeal period under the Rules. Rather, the Court only found See Ad Vance Coating Technology, Inc. v. Case 9:08-cv-80119-KAM Document 340 Entered on FLSD Docket 10/06/2009

Page 4 of 10 5 LEP Chemical Ltd., 142 F.R.D. 91, 94 (S.D.N.Y. 1991) (holding that party’s filing of objections to magistrate’s order was timely, noting that “the court must take into consideration” the exclusion of Saturdays, Sundays and legal holidays under Fed.R.Civ.P. 6 in computing the time to appeal). Moreover, it would appear that Plaintiffs’ appeal, if anything, was early under the Rules, when one factors in service of the Magistrate’s Order by electronic means. Rule 6(d) of the Federal Rules of Civil Procedure provides three (3) additional days when action is required after service, as follows: When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a). Local Mag. J. R. 4, like 28 U.S.C. §636(b), expressly ties the ten day appeal period to service of the order. In this regard, it appears that the drafters of Local Mag. J. R. 4 and 28 U.S.C. §636(b), by referring to service instead of entry of a magistrate’s order as triggering the ten day period, intended that Fed.R.Civ.P. 6(d) apply. In this case, therefore, pursuant to Fed.R.Civ.P. 5(b)(2)(E) and 6(d), three additional days are added after the prescribed period would otherwise expire to appeal, given that service was by electronic means. See also S.D. Fla. CM/ECF R. 3(K)(4) (noting that Fed.R.Civ.P. 6(d) (formerly 6(e)) applies to service by electronic means). Plaintiffs therefore in fact had until Monday, September 29, 2009 to file their appeal. Their filing on September 24, 2009 is unquestionably timely. that objections filed 21 and 36 days after the magistrate judge’s order were “well after the deadline.” Id. at 728. It provides no authority, one way or the other, on the issue of whether intermediate Saturdays and Sundays are included in calculating the time to file an appeal of a magistrate’s order. Case 9:08-cv-80119-KAM Document 340 Entered on FLSD Docket 10/06/2009

Page 5 of 10 6 II. DEFENDANT EPSTEIN AND HIS COUNSEL SHOULD BE SANCTIONED UNDER 28 U.S.C. §1927 FOR FILING A FRIVOLOUS MOTION TO STRIKE5 Attorneys practicing in the federal courts of this District are expected to know, among other things, the Federal Rules of Civil Procedure and the Local Rules. 6 In arguing to the contrary, Epstein’s counsel misstates a critical fact - the date of service and entry of the Magistrate’s Order - which is a readily ascertainable matter of public record, and should have been apparent from the Court’s email to all counsel in the case. Epstein’s counsel further misstates the law by failing to recognize the application of Fed.R.Civ.P. 6(a). As a result, the proceedings have been multiplied and valuable time The calculation of time periods under these Rules is objective and straightforward – except in extraordinary circumstances, it should not be the subject of motion practice. In this case, no extraordinary circumstances are present. The calculation of the time to appeal the Magistrate’s Order under Fed.R.Civ.P. 6 is simple and should not be a matter of controversy. It is obvious under the plain meaning and application of Local Mag. R. 4 and Fed.R.Civ.P. 6 that Plaintiffs’ appeal of the Magistrate’s Order is timely. 5 Plaintiffs’ counsel is aware that the Order to Show Cause issued by this Court (DE 335) states that Plaintiffs’ response shall be limited to providing the Court with authority to support the Plaintiffs’ position that the appeal is timely filed. Plaintiffs understand this to mean that the Court does not want to hear argument on the merits of the appeal until such time as the timeliness issue is resolved in Plaintiffs’ favor. Plaintiffs include in this Response a request for sanctions under 28 U.S.C. §1927 only because this relief pertains directly and entirely to the Motion to Strike and the timeliness issue. As discussed below, the separate round of briefing created by the Motion to Strike would not have been necessary if Epstein and his counsel had acted reasonably. Defendant’s position is not supported under the facts or a fair reading of the applicable Rules. 6 Qualification for admission as an attorney in this District requires that the attorney pass an examination demonstrating proficiency in the Federal Rules and the Local Rules. S.D.Fla. Rules of Attorney Admission no. 1. Case 9:08-cv-80119-KAM Document 340 Entered on FLSD Docket 10/06/2009

Page 6 of 10 7 and effort have been wasted. Indeed, as a result of the Defendant’s Motion to Strike, the Court issued an Order to Show Cause on October 2, 2009 (DE 335), which directed a response to the Motion to Strike on or before October 9, 2009, and stayed proceedings on the Plaintiffs’ appeal of the Magistrate’s Order pending resolution of the issue of timeliness. The additional judicial effort and briefing arising from Epstein’s Motion to Strike could have been avoided by the reasonable effort and diligence of his counsel.7 7 Plaintiffs further note that Epstein’s counsel failed to comply with the pre-motion conference requirement of S.D.Fla.L.R. 7.1(A)(3). No certificate of counsel is included in the Motion, as required by the Rule. Epstein’s counsel contacted Plaintiffs’ counsel the evening before he filed the Motion to Strike, but only to request an enlargement of time for Defendant to respond to the Plaintiffs’ appeal of the Magistrate’s Order, to which Plaintiffs’ counsel agreed. No mention was made that Defendant would be filing a separate motion on the timeliness issue. If it had been, and if Epstein’s counsel had thereby complied with the pre-motion conference requirement, then Plaintiffs’ counsel could have explained to Epstein’s counsel why the appeal is timely, and perhaps have avoided the unnecessary motion practice Epstein’s counsel created by filing the Motion to Strike. The Motion to Strike has resulted in unnecessary delay, prejudicing Plaintiffs, as the relief sought by Plaintiffs underlying the appeal is to compel discovery that Plaintiffs have been seeking for well over six months. The conduct of Epstein’s counsel in filing the Motion to Strike without a factual or legal basis should not be condoned. Section 1927 of Title 28 provides for sanctions, as follows: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct. Case 9:08-cv-80119-KAM Document 340 Entered on FLSD Docket 10/06/2009

Page 7 of 10 8 In this case, §1927 provides authority for an award of sanctions against Defendant and his counsel.8 [email protected] The Motion to Strike created an unnecessary and wasteful round of motion practice. Plaintiffs should be allowed to recover attorneys’ fees as a result of this conduct. Conclusion Based on the foregoing, Plaintiffs respectfully request that (i) Defendant’s Motion to Strike Appeal as Untimely be denied, and Defendant be directed to respond to the appeal on its merits; (ii) the Court’s Order to Show Cause be discharged; (iii) sanctions be made against Defendant and his counsel pursuant to 28 U.S.C. §1927; and (iv) such other and further relief as this Court deems just and proper. Dated: October 6, 2009. Respectfully submitted, By: s/ Stuart S. Mermelstein Stuart S. Mermelstein (FL Bar No. 947245) Adam D. Horowitz (FL Bar No. 376980) [email protected] MERMELSTEIN & HOROWITZ, P.A. Attorneys for Plaintiffs 18205 Biscayne Blvd., Suite 2218 Miami, Florida 33160 Tel: (305) 931-2200 Fax: (305) 931-0877 8 The Defendant’s Motion to Strike is also in violation of Fed.R.Civ.P. 11. It is unsupported factually and its legal contention on the calculation of time is not warranted by existing law or any nonfrivolous argument for extending, modifying or reversing existing law. Fed.R.Civ.P. 11(b). However, given the 21 day “safe harbor” requirement for a motion under Fed.R.Civ.P. 11(c)(2), there is insufficient time in this instance, as a practical matter, for Plaintiffs to serve and file a Rule 11 motion. Plaintiffs note that the Court, on its own initiative, may by order to show cause direct Epstein and his counsel to show why the Motion to Strike does not violate Fed.R.Civ.P. 11(b). See Fed.R.Civ.P. 11(c)(3). Case 9:08-cv-80119-KAM Document 340 Entered on FLSD Docket 10/06/2009

Page 8 of 10 9 CERTIFICATE OF SERVICE I hereby certify that on October 6, 2009, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day to all parties on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those parties who are not authorized to receive electronically Notices of Electronic Filing. /s/ Stuart S. Mermelstein Case 9:08-cv-80119-KAM Document 340 Entered on FLSD Docket 10/06/2009

Page 9 of 10 10 SERVICE LIST DOE vs. JEFFREY EPSTEIN United States District Court, Southern District of Florida Jack Alan Goldberger, Esq. [email protected] Robert D. Critton, Esq. [email protected] Bradley James Edwards [email protected] Isidro Manuel Garcia [email protected] Jack Patrick Hill [email protected] Katherine Warthen Ezell [email protected] Michael James Pike [email protected] Paul G. Cassell [email protected] Richard Horace Willits [email protected] Robert C. Josefsberg [email protected] Case 9:08-cv-80119-KAM Document 340 Entered on FLSD Docket 10/06/2009