USDCSDNY |

UNITED STATES DISTRICT COURT DOCUMENT I

SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED |
VIRGINIAL. GIUFFRE, DATE FILED. 07/02 [22
Plaintiff, —

against: 21-6v-6702 (LAK)

PRINCE ANDREW, Dukeof York, in his personal capacity,

also known as Andrew Albert Christian Edward,
Defendant.

OPINION

Appearances:
David Boies
Sigrid McCawley
‘Andrew Villacastin
Erika Nyborg-Burch
Sabina Mariella
BOIES SCHILLER FLEXNER LLP
Attorneysfor Plaintiff
Andrew B. Brettler
Melissa Y. Lemer
LAVELY & SINGER P.C.
Attorneysfor Defendant

|
 Table
ofContents

‘The EpsteinSex Trafficking Scheme ........... enor essed

Defendant's Relationshipwith Epsteinand Maxwell. ...........................3
Epstein Recruits PINT ................oeeeoseeeisensiiiennnennnnnd
Defendant’s Alleged SexualABUSE oo ..ooeeieesiiiesiiieninS)
‘The Florida State Prosecution and the Federal Non-Prosccution Agreement... ....&
Ms.Giuffre’sFlorida SuitAgainst EpSICin ........................weceeeend
‘TheFederal Criminal Case Against EpStein. ................ooeriurnniinennnnd
The 2009 ABIECMENL. .........eneeeniieenineeenineeeneeenees 10
cmeDIO 4. ER £43 094 00 0s owns ond]
I Dismissal on the Basisofthe 2009 Agreement Is Not Justified on this Motion
A LegalPHOGIDIES. oven Ln
1. MaterialsProperlyConsidered ............evvovervn IL
2 GOVEMINELAW... .....eeeeeeeiieeeieeeinee 12
B. Analysis ofthe2009AROCMENt. .............oooiieseiinn 12
I. Whether the Defendant Is Among the Purportedly Released Persons
2. Whether Defendant is Entitled to Enforce the Release as a Third
PartyBeneficiary ofthe2009 Agreement. .................22
a. Relevant Provisions oftheAgreement... . ez
b. Defendants CasesAreInapposite .................25
c. TheDershowitz Argument ........................28
IL TheComplaintStatesLegally Sufficient Claims ........................3L
A Legal PHRGIPIES. ovoevveeeeieeeieeenneeenns 31
BAe tiered pgp ett iret sieternsateil
I. The Complaint lsLegallySufficient. ......................32
2. Defendant's Contention that the Plaintiff Was Obliged to Plead
Specific FactsDemonstratingViolationofthe New York Penal Law
TMOTRND wrensrreerriserrromeossriseesssessooriese ll
3. Plaintiffs IEDandBatteryClaimsAre Not Duplicative . 35
I. The Attack on the Constitutionality of the New York Child Victims Act Is Without
IV. Defendant Is Not Entitledto a More Definite Statement. He Will Get the Detail He
Seeks During DISCOVETY . + veenaannnnnnseeennnnnen 42
COMCIUSION eee 4)
 Lows A KAPLAN, DisrctJudge.
oo © PlaintiffVirginiaRoberts Giuffrebringsthisactionagainst defendantPrinceAndrew,
Duke ofYork, for battery and intentions inflictionof emotional distzes. In short, she alleges that
the late Jeffrey Epstein and others trafficked her to Prince Andrew who took advantageofthe
- situation by sexually abusing her when she was under the ageofcghtcen.
Dende denies Ms. Gffe'sallgatons andattacks credibly and tives.
Hoassertsthatshewascomplicit in Epstein’ unlawfulactiviies. Butthis isamotion to dismiss
Ms. Giuffre's complaint as legally insufficient~ not to determine the truth or falsityofcharges in
hercomplaint.And defendantreliesmainly, althoughnotexclusively, na2009 agreementbetween
Ms. Giuffre and Epstein that sited adifferent lawsuit, betweenGiufreand Epstein, that defendant
now argues released him from any liability to Ms. Giufie.
“The fact tht defendant has brought the mater before the Court on a motion to
dismiss thecomplaiat as legally insufficient isof central importance. As is well known to lawyers
but perhaps not known to the lay public the defendant — by making thismotion — placed upon the
Court the unyielding duty to assume — for the purposes of this motion anly ~the truth of ll of
plaintfFs allegations and to draw in plainif’s favoral inferences tha reasonably may be dravn
from those allegations." Tn consequence, the law prohibits the Court from considering a this stage
of the proceedings defendant’ offorts to cast doubt on the truth of Ms. Giuffe’s allegations, even
though his efforts would be permissible ata trial. In similar vein and or similar reasons, itis not
open to the Court now to decide, as a matter offac,just wha the parties o the release in the 2009

Ei Lit» CityofNew York, 95 £34 297, 306 (2d Ci. 2019 “On a motion to
dismiss, ail factual allegations in thecomplaintare accepted ss trae and ll inferences are
dapat re bad url 92 F- Ag 0.910 G4 Ci
 2
sctlement agreement signed by Ms. Giff and Jefe Bpscn actually meant. As vill appear
theCourt’ jobat this junctureissimply todetermine whether there aretwo or
below,
"morefully
more reasonable interpretationsofthat document. If here are, the determinationof the “right” or
controlling interpretation must await further proceedings. :

~ IE _— EE [EE

thefacts arcdravmfrom Ms. Gut

TTT Excoptasotherwisenoted, scomplaint.Itbears
repeating that ifs allegations are deemed true for purposes of this motion, whatever a trier of fact
ultimatelymight determineatatrial. oo or

The Epstein Sex Trafficking Scheme.

Plaintiff's allegationsaiseprincipally from asextraffickingscheme orchestrated by
the late sex offender JefTrey Epstein, which by now has been publicized widely. According to Ms.
. Giufire’s complaint,Epstein“sexually abusedmore than 30 minorgirls... inthe United States and.__
overseas" from between about 1999 and2007.2 In concertwithpaidemployeesand others notably
‘Ghislaine Maxwell, who recently was convicted in this districtofsex trafficking in connection with
the Epstein events? — Epstein and others lured vulnerable young girls into a scheme of abuse for
Epstein’s own sexual gratification and for that of some of his powerful and wealthy fiends."

* Complaint Dk 1) (hereinafter “Compl § 4 sting Opinion and Orde, DI. 435 at 1:2,
Doe.UnitedSiaies, No. 08-cv-80736 (KAM) (S.D. Fla. Feb. 21, 2019)).
Cte Sats Mawel No. 2050330 (AN.
Comins
 3
Epstein relied on Maxwell and others to identify and target vulnerable young girls in numerous
TT sctings,including “schools, spa,railerparks, and thestreet Epsiin's‘recuitrs” luredthese
girl into his orbit with the promiseof what appeared to be legitimate masseuse positions. Once.
‘manipulated into returning to one of Epstein’s residences, however, the girls were groomed for
abuse by Epstein and others through displays of wealth, power, and sexual imagery.’
CT omeiatsonslabsehadoccuned psn ndMaxwel themanipuledthe
TT ict withacombination of promise,heats, and surveillance ACsheight,Epstein’s sexual
abuse scheme, managed principally by Maxwell, was transcontinental. Using his private jet,
Epstein taflickeddozensof minors for sexual abuse athis New YorkCity mansion, his New
Mexico raich, his private island in the U.S. Virgin Islands, hs Palm Beach, Florida, estate, and
elsewhere. In 2008, he pleaded guilt in Florida to procuring a minor for prostitution.”

Defendant's Relationship with Epstein and Maxwell

oo Again according to Ms.Giure's complaint, thedefendant first met Epsteinin 1999
through the former's “close friend,” Ghislaine Maxwell.” Over the next several years, the defendant
traveledwithEpstein and Maxwell on Epstein’s privateplaneand was a guest atEpstein’s numerous

2919.
© amen
Tum
Ye
Tum
 .
homes, includingtheprivate islandinthe U.S. Virgin Islands,Little St. James, and properties in Palm

and New York City. psc and Masel wreguests attho defendant’ otieth birthday
each
party in 2000 as well as atabirthday party that the defendant threw for Maxwell in Sandringham,
United Kingdom, in the same year.

“in 2006, one month after Florida state prosecutors charged Epsteinwith procuring a
- minorforprostiation, thedefendant invited Epsteintothe eighteenthbirthdaypartyof ne of -
Giada's dmughiors Asrooely3 2010, andterre afer Eps addone Jul me in
connection with the 2006 Florida charges and registered as a sex offender, the defendant was.

photographedwith Epstein and stayedat Epstein’sNew York City mansion.” ol

[Epstein Recruits Plaintiff

Ms. Giuffre’s complaint continues:

Maxwell recruited Ms. Giuffire into Epstein’ssextrafficking activities in 2000, when

Ms. Giffre was sixteen years old and employed at the Mar-A-Lago Club in Palm Beach." Like
other minor girls whom Epstein and Maxwell targeted, plaintiff initially was recruited to “provide
‘massages, and thereafter to engage in a variety of sexual acts, for Epstein”? From 2000 through
2002,plaintiff traveled frequently withEpstein,both within the United States and intemationally, on

on other
his private plane.Inaddition to being “on call for Epstein for sexual purposes,” plaintiff

" 1d. 150.

! Id. 992,24.

" ys.
 5
occasionswas “lent out to other powerful men,” including the defendant.

Defendant's Alleged SexualAbuse

“The complaint alleges, and the Court for present purposes i obliged to accept, that
"the defendant sexually abused Ms. Giuffire whenshe wasunder the ageofeighteenyearsold. Onone.
" im aginst her wilat Mawel's
ccssion, defendant allegedly freed pn0 Havesx with
“home in London.Ms. Giuffre’scomplaintincludes areproductionofa nowwidely published o
photograph of Ms. Giuire, Prince Andrew, and Maxwell at Maxwell's home, which plaintiffsays
wnstuken priorto thatevent Onanother occasion, defendant llogedly abused Ms, Giuffreduring
a visit o Epstein’s private island, Little St, James.
Ms. Giuffealleges also that defendant abusedher atEpstein’s mansion on the Upper
East Side of Manhattan, which lis within this judicial district. During that particular encounter,
Maxwell forced “[pllaintift a child, and another victim to sit on Prince Andrew's lap as Prince
Andrew touched her.” During tisvisit to New York, according to the complaint, the defendant
forced Ms. Giuffre to engage in sex acts against her will and was aware bothofher age and that she
was a coerced sex-trafficking victim."
In cach of these encounters, plaintiff alleges, Epstein, Maxwell, and the defendant
compelled her to engage in sexual acts by express or implied threat. In consequence, plaintiff feared

a
Tue,
re
© amas
 6
death or physical injuryt herselfor another, among other repercussions, ifshe disobeyed.”
oT “Ms. Giufire asserts that the defendant'sactionscaused andcontinue tocawseher
significant emotional and psychological distress and harm.

- The Florida State Prosecution and the Federal Non-Prosecution Agreement

in thecomplaint
Atthis point, itis helpful and appropriate to refer tofacts notalleged
oo in thiscasebut of which the Court takes judicial notice." oo oo

In July 2006, a Florida state grand jury indicted Epstein inastatc court ona single
count of felony Solicitationof prostitution (the “Florida State Indictment”). As will appear, that
charge remained pending until mid-2008.
As previously noted, defendants motion in this case relies heavily on the 2009
agreement between Epstein and Ms. Giuffre, which already isbefore the Court as 2 matter ofjudicial
notice (the “2009 Agreement”). The 2009 Agreement contains the following paragraph:

ay
“
sectionof his
“The Court takesjudicial notice only to the extent ofthe fasts setforth inthethsdocumens,
of contentsof
opinion and, in the caseof documents, for the existence re SKAT TaxRefundScheme but
not for th truthofassertions the documents contin. See Jn 21,2020).
Litg, No. 18-CV-05053 (LAK), 2020 WL 7496272, a *3 (SDN.Y. Dec.
2006), reprinted in US.
Indictment, State v. Epstein, No. 06-9454CF (FL Cir. Ct Julythe19,U.S.
Dep'tofJust,OFF.of Po. Resp, Report — Investigation nto Atorney's Officefor
the Southern District of Florida's Resolution of Hts 2006-2008 Federal Criminal
with Victim duringthe
IvestigationofJeffrey Epstein and Its Interactions deal of information about Investigation,
Fx.) (Nov. 2020). The OPR Report contains a great how the
NPA came to pass. But the Court does not takejudicil notice of is statements c
or onsider
itn deciding this motion.
Dk. 57 takingjudicial noticeofDK. 32, x. A).
 7
“Firstand SecondParties furtherstipulateandagreethat this SettlementAgreement
~~ ispuruanttoandisinfulfillmentof JeffreyEpstein’sobligationsto Virginia Roberts
(Gif)... pursuant toand in conformitywith the Non-Prosccution Agreement, ts
‘Addendum, and its Affirmation . . . between Jeffrey Epsicin and the United States
‘Atiomey for the Southern DistrictofFlorida. ™
“Thus, the termsofthenon-prosecutionagreement (the “NPA”) may shed light on the meaningofthe:
2009 Agreement. The Court therefore takes judicial notice of the NPA, its addendum, and
affirmation.”
So ~ For present purposes, the following termsof the NPA arcofpossible interest here:
I. Epstein agreed to plead guilty to the Florida State Indictment and to a state
Information charging him with solicitation ofminors to engage in prostitution.
2. The U.S. Atomey's office agreed to provide Epstefn’s attomeys “with a list
of individuals whom it hald) identified as victims, as defined in 18 US.C. § 2255” and, “in
consultation with and subject to the good faith approval of Epstein’s counsel, [would] select an
attormey representativeforthese persons, who [would] be paid for by Epstein.” Epstein’s lawyers

“The agreementdefine theterm “First artes” to mean Virginia Roberts (ka Giufle]andlor and
her agent(9), attomey(s), predecessor(s), successor(s), heirs), administrators),
assign)” It defines theterm “Second Prtis” tomean “Jeffey Epstein and his agen(s),
atomey(s), predecessor(s), successors), heis),_adminisiator(s), assign(s)otherwise andlor
employees(s)." For easeofexprasion, unless otherwise indicted orth context
requires, the balanceofths opinion uses the term “Vs. Gufs” to refer collectively to Ms.
Gute andthe others included n t h e definedterm “First Parties” Similarly it ses th tem
“Epstein” orefrcollectively to Epstein and the thers included inthe defined tm “Second
Parties.”
Dit 32, Bx Aai2.
See Non-Prosccation Agreement [hereinafter NPA”), DK. 361-62, Doc v. United States
No. 08-cv-80736 (KAM) (5.D. Fa. Feb. 10, 2016).
 8
could “contact the identified individuals through that representative.
TT individuals whomthegovernment
TT3. Epsteinagreed that if oneor moreofthe -
had identified as victims elected to sue Epstein under 18 U.S.C. § 2255, Epstein would not contest
jurisdictionoverhim in theFloridafederal court and he would waive his right tocontesthis lability.
Inaddition, hewould “waive{] his right tocontest damages up to an amount as agreed to between the
otf indioinand Epis longs theidenificd dividual ected proceed xcusvly
to waiveanyotherclaimfordamages,whetherpursuant to
CT under 8 US.C.§ 2255,and agree(d]
Sate, federal, or common law." Epstein’s waivers, however, would not apply to anyone who had
notbeen identified by the government as a victim of, having been so identified, did not proceed
exclusively under 18 U.S.C. § 2255.
4. The U.S. Atomey's office agreed that it would not prosecute Epsicin nor
“institute any criminal charges against any potential co-conspiratorsof Epstein, including but not
limited to” four specifically identified personsifEpstein pleaded guilty to the Florida charges and
otherwise dischargedhisabligations under the NPA ~
“TheNPAbears signaturesdatedvariously in ate Septeraber andinOctober 2007. Ms.
Giuffe’s complaint alleges that Epstein pled guilty to the Florida information (and presumably the
indictment) in 200877

—_—
dah
Tou
Tes
7 mee
 9

— MsGiagre’s Florida SiAgainst pve -

Tn May 2009, while Epstein was incarcerated in Palm Beach County, Florida, as a
result of his guilty plea to the Florida state charges, Ms. Giuflre sued Epstein in the United States
District Court for the Southern District ofFlorida(the “Florida Case”) under 18 U.S.C. § 2255 as an
Bh alleged victim ofEpstcin’s allegedfederalsextrafficking, sexual exploitation, andchild pomogrsphy
—————offemses™ Her complaintasserted Ural Epsteinand Eps(ein's“adultmale peas,including royally,
politicians, academicians, businessmen, and/or other professional and personal acquaintances,” had
sexually exploited her.”
CT Vie Glut and Epsen catered into the 2009 Agreemens, ended Slment N
Agreement and General Release, pursuant to which Giuffve voluntarily dismissed her action against
Epstein in exchange for $500,000. The defendant arguesthatMs. Giuffre’s claims against himare
barred by the terms of the 2009 Agreement.

The Federal Criminal Case Against Epstein

On July 2, 2019,a grand jury in this district indicted Epstein for an alleged sex

"ue Complaint, JoneDoeNo. 102 v. Epiin, No 09-ov-30656 (KAM) (SD. Fi. May 1,
2009) (hereinafier “Florida Compl")
Tam
Sue Fina OnterofDismisal Dt. 65, Jane Do No. 102, No. 0951-40656 (KAM) 5.
Fla. Dec. 8, 2009).
 10
(eafickingconspiracyandthesubstantivecrimeof sex trafficking in viohtion of 18 U.S.C. § 1591.
Athe
wnsamested onJuly 8, 2019; OnAugust 102019, Epsteinwas fouddeadi his cell -
Metropolitan Correctional Center

The 2009 Agreement

- TT The 2009 Agreements the cruxofdefendant's motion.It contains six anda fraction
pages ofsubslanive extaonsstingoFineindividually labeledprovisions. Thesewean agreEment
{o dismiss the Florida Case (§ 1), one adote-hlfpage provision eaptioned “genera release” that
contains additional covenants beyond the releasing language (5 2), 2 payment section (§ 3), a
confidentiality provision 5 4), covenaats dealingwith mainining Ms. Giufi's anonymity (85),
4 “no contact” covenant (§ 6), a provision relating to governing law and enforcement of the
agreement (§ 7), a clause concerning atomeys” fees (§ 8), and a collection of miscellaneous
provisions 59).
A number of these provisions bear importantly on the resolution ofthis motion and
ae disused indtlbelow so hei no need 0 quote or summarize them in great detail her
Suffice ito say by wayoftroduction that
+ This motion raises two pivotal issues regarding the 2009 Agreement
+ Whetherthe 2009Agreement demonstrate tha ts releasing language
in Section 2 unambiguously applies to tis defendant and, ifso.
+ Whether the defendant— who is not a party to nor mentioned in the

! Sven, D4, ed Sa» Btn No 15CRA90 NE) SONY 2

"comes.
 agreement— is entitled to invoke it.
+ The2009 Agreement is fa from a modelof clear and precise drafting. Both
— “sidesagreethat Epstein andMs. Giufffc agreed to fslanguage. lmusthave
meant something to them. But Ms. Giuffre and the defendant in this case
disagree emphatically as to what it meant with respect to both issues.

Discussion
IDismissal onthe Basisof ie2009 Agreerint Is Not Justified on this Motion
A. Legal Principles
I. Materials Properly Considered
“The defendant moves to dismiss pursuant to Rule 12(5)(6). As noted previously, the
‘Cour, in this posture, must accept as true al well pleaded factual allegations in the complaint and
draw “all reasonable inferences that can be drawn from [them] in the light most favorable to the
plaintiff With limited exceptions, the motion must be decided solely on the basis of the
allegations ofthe complaint without regard to any extrancous claims or materials.
‘The 2009 Agreement neither appears in nor is referred to in the complaint. But the
copy before the Court concededly is authentic. Its wording (as distinguished from its legal effect)
is undisputed, and the Court consequently has taken judicial notice of it* Moreover,
»
Lynch. City ofNew York, 952 F.3d 67,75 (2d Cir. 2020) citations and internal quotation
marks omited).
Ste, e.g. Alt Energy, Inc. v. St. PaulFireandMarine Irs. Co., 267 34 30, 33 (1stCir.
2001) (“Ordinarily, a court may not consider any documents that ars outside of the
‘complaint, or not expressly incorporated therein, unlessthe motion is converted intoone for
Summaryjudgment. There is, however, a arrow exceptionfor documenis the authenticity
ofwhicharenot disputed by hepartie, or offical public records; for documents central
toplaintiff claim;orfor documents sufficiently refered inthe complaint”) (citations and
internal quotation marks omitted) (emphasis added).
 2

notwithstanding the general rule that an affirmative defense is not considered at this stageofthe

oo fodismissunder Rule [20X0) +

adefor nay b aed by apre wer tion
igaion. uth —
ifthe defense appears on the fice of the complaint” And while the defendant’ argument does
a.difference in lightofthe fact.
notrest on the face ofthe complaint, here that is a distinction without

‘that thewordingofthe 2009 Agreement (again, as distinguished from its legal effect) is accepted by

- both parties. Accordingly,the Courtconsidersdefendant's argument. - 0 .

2 Governing Law
“The 2009 Agreement provides that it “shall be. governed by the lawsofthe State of

) theCourt applies Florala toh topivotal questions

Frida” Th patie aes. Accorinly
that bear on the defendant's release argument.

5 ofthe2009Agreement
Analysis
I. Whether the Defendant Is Among the Purportedly Released Persons
We begin by focusing on the first two pages of the 2009 Agreement, which contain
Sections 1 nd 2.
ofplaintiffandJefTreyEpstein to dismiss plaintiff's
Section | contains the agreement
one-half
Florida Case upon receiptof a monetary payment. Section 2, which occupies one and

ypewriten pages, contias, among other things, language by which “First Parties” (generally, Ms.
and
Giuffre and some others) released “Second Parties” (generally, Epstein and some others)

* Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,74 (2d Cir. 1998).

was not
Itis undisputed that “JaneDoeNo. 102”refered to Ms. Giuffre and that her identity
evened in the complaint nthe Florida Cae.
”
 13
a potential defendant
“any other person or entity who could have been included us(claims)
(‘Other Potential Defendants’) from all, and all manner of orOther that said_First
- Parties ever had. or may have, againstJeffrey Epstein, Potential — ~~
Defendants...
“The defendant insists that he was among the “Other Potential Defendants” and
therefore was released by Ms. Giuffre from “all, and all manner of,” claims that she “ever had”
against him. Ms.Giuffre maintainswithequal adamancythathewas not amongthe “OtherPotential i.
Defendants” that the parties to the 2009 Agreement had in mind.
“The basic principlesofFlorida lawthatgovem this aspectof the partes” dispute are
clear. Unless contract language is “unambiguous and free of conflicting inferences,” ambiguity
“must be resolved as a question of fact In other words, unless the termsof an agreement leave -
no reasonable doubtaboutthe intent ofthecontracting partis, theambiguitymustbe resolved by the
wieoffact ordinarily a rial jury. The Court may not resolve any such ambiguity on a motion to
dismiss the complaint.
‘Whetheracontract is ambiguous “is a questionoflaw —specifically, whether the
agreement, in whole or by its terms and conditions, is “reasonably susceptible to- more than one ~

Soncoast Cty. Churchof Boca Raton, Ic. v. TravisBoating Cir. ofFla, Inc., 981 50.24
654,655 (Fa. Dis. Ct. App. 2008) (quoting No. Star Beauty to n Inc.Salon, v. Artz, 821 S0.24
356, 358 (Fla. Dist. CI. App. 2002). This principle is Subject exception, not relevant.
ambiguity
‘on this motion, that the court may resolvethetheparties’ ss amatter of law where that can
be done by undisputed parol evidenceof intent. Decoplage Condo. Ass, Ic.
+DecoProps.Ins, Jnc..971 So. 24 860, 861 (Fla. Dist. CL. App. 2007)
See Berkowitz v. Delaire Country Club, Inc, 1261249 So. 3d 1215, 1219 (Fla. Dist. Ct. App-
2012), Newnanv. Brigman, 475 So. 24 1241, (Fla. Dist. Ct. App. 1985); see aso
Talbottv. First Bank:Fla, FSB, 59 So.fact3dis 243, 245 (la. Dist. Ct App. 2011) (“When a
contract is ambiguous, an isu of created that cannot be resolved by summary.
judgment.)
No. Star Beauty Salon, In, 821 So. 24a358.
 14
intespretation™ That is so even where both sides insist hat language is unambiguous but ascribe
to it." oo oo
“materially different meanings
Inthis case everyone agrees that the phrase “could ave been included as a potential
defendant (‘Other Potential Defendants)” must mean something. No doubt that is so. Noris there
ach dob tht better drafing probably could have eliminated any uncertainty as to the meaning. -
In fact, however, the meaning ofthe phrase ifa fromself evident for a number ofreasons - o
We perhaps shouldbegin vith hcquestion ofwhat wasmeant by “couldhavebeen
included as aporential defendant” ~ a5 opposed fo “could have been included as defendant.”
One might suppose thatwhether one was, orcould havebeen, included as a defendant
not included as a “potential” defendant— is clear enough, although even that seemingly simple
supposition, as we will se is not accurateinthe context of his case. But the canceptof inclusion
as apotential defendant” is even less capableofdefinition. Ifthe quoted language from Section 2
ofthe 2009 Agreement — tha is, the phrase “could have been included as a potential defendant” ~

Lambert v. Berkley 5. Cone. Asn, 680 So. 24 S88, 590 (Fl. Dist. Ct. App. 1996); see
Miller» Kase, 789 So, 24 1095, 1097.98 (Fla. Dist. C1. App. 2001).
Killearn Homes dss, In. v. Visconti Fam. 14d, 2) So. 3451, 53-54 (Fla. Dist. CL. App.
2009)
Indeed, we might havebegun withth ictthat he 2009 Agreement defines “Othe Potential
Defundanis 2 “any other person or tity who could have oincluded
been s a potential
Defendants briefsought
fondant without <pecifving in wha.“defies Solve that problem by
senting that he 2009 Agreement “Other Potential Defendants” 5 “any other
oo: tyho ould haveFac bee included a5:potentiwordsdefendant” inGifs Law
Dit Eps despite the at 13tht(emphasis the alized do not appear in the 2009
iroement. Def. Mom, DKL 31at 10 (“The 2009added). Plinif, however, takesthe same
Sve pL. Mim Di. 43, Release, by is toms, encompassed onlya5
‘lat aginst Epsiein and “Other Potential Defendans' ‘who could thehave been included
potential defendant i the Florida Complaint”). Accordingly, Court accepts the
otis agreed glos on this point for purposes ofthis motion.
 15
was intended to mean someone who was not actually a defendant when the 2009 Agseement was
ad namedhim of her —
igned butwo might avebec madeadefendant previouslyi he plaintiff
a5 an actual defendant, then theword“potential” would be entirely superfluous. Thats so because
the language would mean exactly the same thing with or without the word “potential.” Put another
way, the phaseunder orsideration would icanexactly the same thingeven ifonedeletedtheword
- “potential” entirely. - - -
EE is abasic Fleof contractualconstructionThal acontact shouldbeconstrued,
whenever possible, ina manner that gives meaning {0 every word and phase. The presumption is
{hat contracting parties do not include words or phrases for no purpose. Nevertheless, the parties
have bricfed this matte a if the word “potential”were not in the agreement at all. And as the Court
So0s m0 otherappropriatecourse, it will do so as ell It sees no way to construe it in a manner that
would give non-redundant meaning to the word “potential.”
So we come to the question of what vas meant by the phiase “could have been
included as... defendant” At one level,ofcourse, lcrally anyone “could have been included

See 2, GoldenDoor Jewelry Creations, nc. . Lids Underwriters Non-Marine Ass,

117 7.54 1328, 1338 (11h Cir. 1997) applying1994);Florida law); Premier Irs Co. Adas,
£52 So. 24 1054, 1057 (Fla. Dist. Ct. App. see generally 11 WILLISTON OX
CONTRACTS §32:3 thed.)(“To heextent possible, and excepto theextent thatthe partes
anit a contrary intent by sain, for example, tht reals or headings are not to be
Considered or given fect in determiningelect.the meaning of (heir agreement, every word,
phrase or termof contract must be given
Fla. Tov. Grp. 100, LEC». Lafont, 271 $0.34 1,5 (Fl. Dist. Ci. App. 2019) C{NJo word
or pat of an agreement 5 o be tested 8cana redundancy if any meaning,
of surplusagsRoyalAns. Realty.
Teasonable and consistent with oxhe pats, be given oi) (quoting
Tres Bunk ofPam Beach& Tr. Co,215 S0.24 336,§ 203 338 (Fa. Dist. Ct. App. 1968): sce
‘generally RESTATEMENT (SECOND) OF CONTRACTS (1981).
 16

— as a
.. as a defendant If the plaintiff had wished to include someone else — anyone else
ima lawsuit
afer, sheasily Gould avedon So.Socom canBEincluded as defendant
thatperson's name in thecaption ofa complaint. Nothing ese is required. But
simplyby including
of the.
neither party takes that position despite the fact it would be consistent ‘with the literal terms

2009 Agreement. Rather, defendant argues that he “could have been included” as a “potential

defendant” intheFlorida Casebecause Ms. Giuffre made ageneralreferenceto“royalty” in her

noreven mentionhis
didnofnamePrince Andrewasadefendant
‘Floridacomplaint, even thoughit
EE

name.
Plaintiffrejoins that Prince Andrew could not have been included as a defendant in

- {he FloridaCase because (1) hewas not subject to personal jurisdiction tere and, in any ase, Qe -
US.C. §
claims that plaintiff brought against Epstein in the Florida Case were based solely on 18
was
22557 which created a federal civil cause of action in favor of anyone who, while a minor,
statutes. As to the.
injured in consequenceof a violation of any of anyofseveral federal criminal
any of
latter, she contends that Prince Andrew could not have been sued in the Florida Case under

* Be defendant so conceded at argument. SeeTranscript (hereinafter “Tr."), Jan. 4, 2022, at

P
See FED. RC. P. 106).
For aclsr (hough misuided)WILllstration of11his pin, sceMay John Pas
Craigv. Pope(raming 1,
Cit Acton No. 00824,2010 18, 2010)
1994620, (DIDLC. Mother Roman Catholic “Pope
God,” Pope Benedict
tn Post 11 Heaven vith andArchbishops XV1, the HolyRomanCatholic Church”
Chote and anyCardinal andBishops ofthe
deendants and 83
sccking tilion, 9 million in damages).
! Florida Compl. §32.

8 USC.58 159, 1990, 1591, 224100, 2242, 226, 251, 251A, 2252, 22524, 2260,
2420, 2422, 0c 225.
 IY
{ne Section 2255 predicate sates because thre was no basis for doing so.
ST Ihe parties respegiive positionsshowthattheyagre tha the releaselanguage =te
{he phrase “could have been included as a... defendant” — applies onlyifthere is a nexus between
{he person in question an the claim Ms. Giuffre made against Bpstn in the Florida Case. They
disagree, however, as tothe nature ofhe requisite nexus.
- tha thenexus is supplied byplaintf’scomplaint inthe Florida.
“The defendant argues -
-
asa Techarged Jeiey ESE, 1 quote he JefiAdaRt i Tsease, wi “SexctaTieling and
sexual abuse.” Tt alleged that girls whom Epstein trafficked were abused by others, including
unspecified “royalty”! That, defendant submits, is enough.
From the plinil's standpoint, defendant's position i oo extreme. As noted, the
Florida complaint did not mention Prince Andrew, Moreover, Ms. Giuffe argues in substance that
one “could have been included asa... defendant” (1) olyif that could have been done on the same
oasis a the cli inthe Florida Case was made against Epstein — violation of one of more of the
Seon 2255 predict cima sais ~ and sven then 2) nly ii person would have bocn
subject to the persona jurisdictionofthe Florida court, Yet there is no basis for concluding wat |
defendantwould havebeen subject othe personal jurisdiction oftheFlorida cour NothinginMs.
—_—
hsthatcomplaint was fled theFlorida Cs, theCourt takesdial otcof its wards,
efor the sthof the legatons, btfo th fact tha hey were ured on behalf ofthe
pein
© bean
"pita coml 121
2009, when the Florida Case as std, the Florida fong-amin ste in evant prt15
mitt th excrese ofpersonal uisdicton oer onTsent TCUTSANGES uch
Fe in sue here only i he alam aro rom the commission ofa forious act within the
 18
Giufie's Florida complaint indicates thatthe defendant violated any ofthe Section 2255 predites
Theeux oftheFloridaCase vas ~~
Se Norisiis rere to“Toyalty”Suicient o remedythisabsences.
{hat Epstein harmed Ms. Giulre by trafficking her for sex withhimselfand with others. Indecd,
defendant's counsel made clear at oralargumenthis view thatthe complaint against Epsteinwas that
Epstein “teaficked [Ms. Giuflie] to nusber of individuals, forced her nto sex slavery, nd ...
-
forced [her] to have sex or be sexually abused by many people, including members of academia,
~ncioding businessmenand 0 Gaegoryof yally”™ Yetthereswosuggestion inthe Florida Case ———
{hat his defendant washimself engaged in sx trafficking.
Inconsideringwhether th only reasonable interpretation of the phrase “could have
been included asa... defendant” itheone advanced by the defendant— Le, that itwould inherently
beunreasonable to constaue that phrase as refering only0 persons who Gould havebeen sued inthe
Florida Case on essentially the same theory as was Epstein and over whom the Florida court could
ave exercised personal jurisdiction— it i helpful also to consider the context in which the 2009

ANN. §48.1931) Q007);

Stateof Florida. Se FL STAT.So.34 BetaDywall Acquisition, LCC
St & Fade PC. Dut651, 653 (Fa. Dist. Ct. App. 2005) (discussingthen FL.
eS 48193010). Cour noing in the FloridaGil th other
complaint (nor any ofagainst
allges that Ms. had a claim
teri propely before hisomission by him ofany fotous ac n Florida. Defendant's tis
font im outofhe exercisedpersonal uisdictionwhichon
coutnevertheless couldhave
ontht the Florida the fact ha theFlorida complain,
o omopiraor theory, DI. 52 at 4-5, overlooksby Epsei of certain federalany criminal sauts,
oi to assenin specifi violations
conspired with Epsicin assistants andorof them.
0 commit The
hoes mot allege that Prince Andrew“with thers, including [Bpscivs]
Sonera reorance lo conspiracy
and oe socialite fendiparne, been forhee
Ghislaine Maxwell,basiso or
ey andor pilots, 1 16, would not have sufiient the
Epsinrs) act Florida Compl.ver Andrew. See United Techs. Corp. v. Mazer,
personal risdicion 2009)Prince
(-{aIny conspiracy-basd xereise of personal
Sse 560, 1282 (11h Ci.
osedicion must be. founded on conduct commited in Horida by others that can be
Airbuted to defendant) as a co-conspirator.”
Tr, Jan. 4,2022,2032024.
 19
Agreement was signed tothe extent context can be ascertained on the present record.
tami, we do motkno what, if anybing wealtrough (he pres minds wit
respect tothe specific termsof the 2009 Agreement. Hypothetically, we can imaginewhatsomeone
{i Epstein’ position might have thought atthe time this agreement to sete the Florida Case ves
made. Atleast Someof the goals ofa such person presumably would have been to end the Florida
Casey to gainasmuch protection forhimself ashecould ot agent involvement in similar gation
itiTir;ad 0.00 5ToranacegpIabIe riceTother words, apossibleconcermeould havebeen
{hat (1) Ms. Give, having seted with Epstein, would sue someone else (2) who, iv tum, might
make a claim aginst Epstein (a “Claim Over") based ona contention that Epstein should bear or at
Least conte ony bil that person aight be found fo have to Ms. Gite. Obisining &
release from Ms. Giufiieofclaims against sucha person therefore could eliminate the possibilty of
a Claim Over against Epstein. But the objectivesofone in Epstein’s positon were unlikely to have
een shared by theothercontracting panty, an individual in Ms. Giuffr’s position. And that malters.
The gosls ofone in Ms. Gulesposition hypothetically could have included getting
as mach money as she could for seting the case and kecping as much of| herfreedom 0 go after
other alleged irongdoers as she could keep while still geting an acceptable sum ofmoney. Limiting
ne release language to persons who could have been sued ina particular court on a particular type
of claim could secure that freedom to a substantial degree.
“The logic of the situation thus suggests that the partes to the 2009 Agreement had
competing goals, and the muddledrelcase language that they agreed upon suggest tht they may
have arrived at something ofa middle ground: a release extending not as broadly as Epstein ideally
may have wanted and someswhat more broadly than would have been a “best case” outcome for Ms.
Giulio. Moreover, it would not be unreasonable to recognize, amongotheconsiderations, tha the
 2
Settlement amount may have been affcated by the viewsofboth partis conceming the terms of the
to paya price demanded forthebroadest ~~
release. Epstein perhaps would riothave beeir willing =
oo
possible releaseofother persons or, short of that, clearer language concerning the nexus between
“Other Potentil Defendants” and claims in the Florida Case
There are additional considerations supporting the reasonableness of plaintiff's
- “interpretation ofthephrase “could have been included as. defendant... * Forone thing, the -
——— lorida Casewasbrought federalcout. Thesoleallegedbasisoffederaljusisdiction was Section ~~
2255 ofTile 18ofthe UnitedStatesCode,which conferssubject materjurisdiction on federal courts
only with respect to claims based on alleged violations of certain federal criminal statutes. The
complaint in the Florida Case specifically alleged that Epstein had committed a number of such
Violations. But it nowhere alleges that his defendant committed any.* Tt not clear that aclaim in
{he Florida Case aginst this defendant would have been within the subject mattejurisdictionofthe
Florida court, evenon a co-conspirator® or supplemental jurisdiction theory. Iti questionable

Defendant argues in conclusory fushion

Neither does her present complaint,violating that “Giuffe
Sold have suet hen dirtyTo seston 2423" intheFlorida Case. Dit 52 a5.
ut on hel fee, plaiir's allogations, ken rue, would not establish the “ranspors”
lemantof § 2425) the “purpose of travel” clement of§ 2423(b), the naturalization
Clement of§ 2423(@), or the “commercial an advantage” clement of §2423(d). Nor would her
allegations, iakena roe,have established unlawfulfuclate agementto accomplish on ormore
intended to
of the predicate offenscs, nor action Case. hose violations that pati
tributed to Epstein in the Florida to adoptThe Court would ned to draw numerousbe
inferences in the defendant’ favor his view tha plains claims should
isis onthetheory thatshe would havehad viable §2255 clasagainstPrince Andrew
fn the Florida Case, whether on director vicarious iaily theory.
“
Prince Andrew’ assertion, ist made in bis reply memorandum, that Ms. Giuftie’s
complaint in this action “alleged thatwasPrince Andre aided abetted Epstein’s
and
federal sextrafTcking crimes and Epstein’s eight co-conspirator in the alleged
criminal enterprise”a proposition for whichanythinghecites specific paragraphsofthe
Complaint, DK. 52,at 5, cannot be take at approaching face value.
 2
over this defendant, even
also whether the Florida court could have exercised personal jurisdiction
-—— = TL
existed. —
~~ assuming thasubject iatierjurisdiction
Inthe last analysis, it s not now the Court's function to decide which party's view of

The first paragraph cited (§ 24) does not even mention Prince Andrew. The second
through fifth (§§ 30-31. 34-35) allege 10 more than that Prince Andrew has said he
fistmet Epsteinin 1999through Maxwell, thatthedefendant has been photographed
Maxwell
with Maxwell at social events, that defendant has flown with Epstein and
_ onEpstin'splanc to variouslocations, andthatdefendant on occasionhas visited
amongputativeco-conspirators.
‘Epstein homes. While the existenceofa relationship
approach
almostalways is admissible in a conspiracy case, italonedocs not;remotely
‘asufficient allegation ofa criminal conspiracy.
at
The last three paragraphs the defendant cites (1 43-45) allege that the defendant, oo
without
The invitation of Epsteinand Maxwell, engaged in ‘sexual acts withplaintiff
was & sex-trafficking victim
‘her consent, knowing her age, and knowing that she
being forced to engage in those acts. If the allegations of the last tarce paragraphs
are true, as they must be regarded for purposes ofthis motion, they actions would
Have been reprehensible. No doubt asdefendant prosecutororplaintiffmight argue that the are
events aleged could betheconsidered evidenceofan unlavelintention agreement. But they the
Consent ss wel wih absence of conspiracy or of any 0 aid and abet
ommision of prdicate crimes by Epstein andlor Maxwell. As thethes complaint on this
the plain,
a light most favorable 10 ial,should thecase
motion must be construed in thedefendant allegations are
eulficent to amy the dayfor on histheory. At proceed
nt fu, he perhaps could have an§2255opportunity to prove that Prince Andrew could have been
Sued successfully in Florida ona in claim, in which cas thse claims might be pertinent
oan assorton ofth release defense this case. But this motion i nol the im for that.
Pursuant 28 U.S.C.§ 13674), thedisict court“shall have supplemental uisdiction over
claims in th action within such origina
ll of the clams thatar so related tocontroversy. jurisdiction
{hat hey form partof th same caseor or intervention of additonal paris” 28 U.S.C.shall§
Such supplemental jurisdiction
include. claims that include Joinder providesthatdistrict courtsmay decline 0 excise
13670). However 28 USC.§ 1367(c)under Section 13676) if“(1th lam raises anovel
Supplemental oiscton over claim predominates over the claim or
or complex fe of Sito aw, (2)courtthe has claim substantially district courthas.
original jurisdiction, (3) the
claims over which the district
dismissed all claims over which it has orginal jurisdiction, or (§) in1d.§exceptional136700).
compelling essons for declining jurisdiction.”
heumetanes, thre re othediscretion jurisdiction under 1367(6)
Given disc sorte: broad speculate todecline supplemental predicated
{he Court can do itlmore than sboutwhetherany tate nw fortlis jurisdiction. See,
within theFloridacourts
on Section 1367 would havebeen Pro-Med subject mate
Utopia Provider ys,Inc. . dismissalClinical Ss, LLC, $96 34 1313, 1328 (11th
CE 2016) (upholding su spon of sae aw claims “[glven th deference we:
affordadistrict cours decision whether 0exercise supplemental jurisdiction”).
 2
he meaning of the term “could have been included as a potential defendant” inthe Florida Case
propel elle th parts ent. tis Gough to Gone (aL hemeaning ofis pivotalphrase -
the contract is not by any means “unambiguous and freeofconflicting inferences.” The parties
have articulateda least two reasonable interpretations of the critical language. The agreement
therefore is ambiguous. Accordiagly, he determinationofthe meaning ofthe release language in
the 2009 Agreementmust await further proceedings. - -
ee Whlthe forego disposiGve ofdefendants motion fodismissonthebass ofthe
2009Agreement, the Courtturns owtohisother arguments for dismissal, which reston independent
grounds.

2 Whether Defendant is Entitled to Enforce the Release as a Third Party

Beneficiaryof the 2009 Agreement
As very general matter, the only persons who can enforce provision of acontract are:
partes to that contract thepeople who agreed to it. The defendant wasnota party to the Agreement
betwoen Epstein and Ms. Giuffre. Accordingly, even if the releasing language in the 2009
Agreement included the defendant amon the persons Ms. Giuffre released, the question would
remain whether the defendant may take advantageofthat release under Florida law. That depends
on whether Epstein and Ms. Giufire intended that he be able 10 do so ~ in other words, whether he
vas what the law calls a third-party beneficiaryofthe contract
Under Florida law, it i “[elssentil to the right of a third party beneficiary . 10
{enforce contrac 0 which he or she i not a party tha] the lear intent and purpose ofthe contract

7 Suncoast Cy, Churchof Boca Raton, In. 981 So. 24 a 655 cations omit).
 »
{oas] to iret nd substantially benefit he tind pay “merely incidental o consequent
Te
TT ipaty befiiny O Gontrac may hotue for itsenforcement™

«Relevant Provisions ofthe Agreement

Intl case, thre are substantial indications on the ficeofthe 2009 Agreement itself
respect 0 “Other
haEpstein and Ms. Giff did not lealy intend for the releasing language vith
poeta Defend" i TheFlorida Case; whatever thal wes intended: to mean;to direety”
primarily” or “substantially” benefit those persons.
As initial matter, onereasonablymight onelude (although that may not be thenly
wobtina
permissible {inference for reasons already sited, that Epscin's purpose in secking
©
release of persons othe than Epstein and the ofber “Second Parties” vas primarily and directly
the
protethimself from becoming embrofld in future ligation. That gor ~ even assuming ha
requirements of“lear” nfention tobenefit the persons leased “primarily”and “substantially” were
satisfied, which is doubifl — would have been served only If persons arguably within the releasing
2009
language were avare oftand, fate sed byMs. Give, suecesslly could ave assertedihe
tgreementrelease against hr. Bu the2009 Agreement ontans provisions iat appea to hveben
of i,
tended to make sure that such persons would notbe awareofthe release and, even if aware
were prohiited from or at east severely limited in thei ability 0 se t defensively.
- 24259,262 (la. 1971) (emphasis
Dhompsans Cam. .Unions Co. ofNew YorkIu.2500, Ct.
Dt dniReconcoNo.»SC21-576 negon Nat'l WL 2558930 Fla June 24,2021):Dist.
Ca, 312.50. 34914,917 (Fl.
Ler
serio 2021 (Fla. Dist. Ct App. 1986) (holding
A wi Cont, 1362
Th 86 So. 24 1359, nent fo create a ight primarily and
“sar establish he partes’
act mustth third pay”
rectly benciting (emphasis added).
7 eKimey-Green, In. . Davis, 66 So. 20393, 396 (Fi. Dist. CL App. 1992).
 2
First, Section 4, the confidentiality clause, provides in pertinent part, that
wie Paries shall not provide iy copy,ifexcept Whole or if part ofiNanyform,of this ©
oo o theextentrequired by Jaw or rule
Settlement Agreement 0 anythird party, orregulatoryagency.
orin response toa validly issued subpoena from agovernmental the terms
Morcover, neither this Settlement Agreement, nor any or therlegalnor
copy hereof,
proceedings,
hereofshall beusedordisclosed inany court, arbitration,
except to enforce the provisions of this Setlement Agreement.”
So both Epstein and Ms. Giuffre were probibited from providing all or part ofthe 2009 Agreement_
evento anyone who might have been among the persons possibly included within is releasing
language.
The second is a portion of Section 2, th release provision, that provides:
- «Additionally, as a material consideration in seting, First Parties [Ms. Givffic] and
this Settlement Agreement are not
Second Parties (Epstcin] agree that the termsofadmissible in anyproceeding
intended 10 be used by any otherperson nor be or case
against or involving Jeffrey Epstein, either civil or criminal"
Taken together, these provisions at least reasonably could be interpreted as meaning
hat Epstein and Ms. Giuftre agreed that (1) neither would disclose the 2009 Agreermentinwhole or
in part to anyone except upon compulsion of legal process, and (2) no one was intended to use the
terms of the 2009 Agreement, which of course included the release language upon which the
defendant relics, in any proceeding or case “involving Jeffrey Epstein.”

Dk 32, Bx.A at 3 (emphasis added)

1d. ax 2 (emphasis added). These limitations appear 10 attach even where the Agreementof
contemplates that Epstein could foveal plaintifPs identity in connection with “ongoing
Toture Nigaton-relted or claim-related matters” fd. at 4. Section 4 anticipates that
Subpoenasandotherlegal process couldresult nthe agreement's disclosure incass ike this
ane, and it limits how i maybe “used” even ifso discovered. Whether ornot disclosure
owed in whole or in part to Epsici’s abilty © disclose plains identity under the
conditions provided in Section 5 wouldbe immaterial
Atoral argument, defendant claimed position that he
that §7 ofthe agreement supports hisfederal
{sentitled to enforce the release. In relevant pa, it provides: “Shouldthe court ot
 2
bh Defendant's Cases Are Inapposite
=~
- “Defendantnevertheless contends thatFloridacourts have “long recognized that at
tended third-party beneficiary of a broad release... has standing to enforce that release, ever
when the release does not identify tha third party by name.’ That is at least an unduly broad
generalization.
© Thefirstoasehecites, Olsen. O'Connell heldthat purchasersofeal property were
id partybeneficiaries ofacontractbetween sellers Of iatpropery and folders ofanexisting
judgment lien on it, There, however, the court indicated that the agieement existed only as a

retain jurisdiction, he Parties and any third party) agree that the” state courts is Palm .
each County “shall have exclusive matte
jurisdiction over the subject emphasis and shal have
Dersonal jurisdiction ove theButParties andthird partie)” Id, a5 added) see
es Jan. 4,202, a1 39-42. his i unpersuasive
As a inal mater, the partisthato the agreement bad no authority to bind third parties. To
sore. the Court recognises an defendant’ point s different, viz. that theButreferences to
Cid pass § 7 evidences Prince intention o benefit oihers. Perhaps. it docs not
evitanty follow thatbenefiting Andrew or others in comparable positions was a
primary purposeofthe relese, ”
Complicating defendant's argument even furtherin the is the way in which thetheterms only
ei and bind party’ ars used olseoehers create agreement. Section — with
“4hird party” — pueports
ovis sation to us the teym“amount 0 rights and obligations
eect to disclosure of the of he] setlement.” The reciprocal confidentiality
ant provide: ~Any find setement
party who i advised ofthehiconfidentiality amount must sign 3
Seam acknowledgingthethatsuch third party i ware ofSettlement Agreement eatingandfo
provision
bound by i, including provisions contained in the
he nforcament otis confdenialiy provision” Dt. 32, Ex, A a3. It would be
ively veasonsble to erp and “enforcement”
§ 75 referencesto “hird parties” which,
ening specifically § 4sogethe, reciprocal confidentiality provision, in addition to
laying hos two ersis more, § is7 specifiesthe oly ther lace inthe cAgreement where either
om appears atal. What that i abreach of onfidentialitywith were
ihe agarioved attach. First or Sceond Parties..- may seek @ remedy the
Court"—no third party rights Jd
Dhu3L als.
466S0.24 352 (Fla. Dist. Ct App. 1985).
 2%
sccessasypartofthe impending sale ofthe propesty hadsought
fo th third-party buyers. Thesellers
—
i agreement oily mse they “ley Gould nolonstmmate the sale-ofthe property without
obtaininga releaseofthe judgment lien” They made the deal with the judgment creditor in order
to affect [si] the sale to” the buyers. The buyers ~ the urmamed third parties — were so integral
fo the deal between the sellers an thejudgment creditor tht th court hypothesized that they were
a evidencedbytheir executionof the noteand mortgage.
“ikelyeven actual parties tothe agreement
payable o eles] andti losing of Ti len eines uponi agreement” hiscase bears”
no resemblance (0 Olsen.
Defeadantpoints nextto Hester v. Gatlin and Dean. Bennett M. Lifer Inc. * both
ofwhic volved ao sccdents with mulipl potential tfesons. TnHester, the owner of car
volved in a multi-car accident was held to be a third-party beneficiary ofa release agreement that
had been executed between the plaintiff in that case and other drivers who were involved in the
accident There, the release langutge extended to “any and all other persons andlor corporations
who are ormaybeliablefor injures or damages sustained asaresult of th subject accident.” And
in Dean, a court held that the employer ofa driver who caused afatal car accident wasathird-party

Ca
© as.
250.2060 (i. Dist Ct. App. 1976)
© 32650.209 (a DisCL App. 1976).
"ter 9250.20 060.
"we
 2

the dministatix
beneficiary to. setementagreementbetween the driver's insurance company and
tthe vidi esate. The Setllemant thre inchidedgeneral language FElCang “any otherperson,
to the person aod
corporation, association or patncrship charged with responsibility for injuris
of” th fatal
property ofthe Undersigned, and the consequences flowing therefrom, asthe result
accident.”
©
as Ms. Gili observes in hr bri, theHester and Dean releases were confined
.
:
accidents circumscribing narrowlythe subject
TT discrete events on.‘specificday -identifiable‘subject
here.
matter of the purportedly released persons or claims.” So they too are inapposite
cases. None ofthe cases.
And there is a further problem common to allofdefendant's
third-party ‘beneficiary who
that defendant cites dismissed claims against a defendant-putative
stage.” Prince Andrew's view of “Other
asserteda release defensively at the ‘motion-to-dismiss
parties that would
Poteatiol Defendants,” on the ther hand, secks to confer rights on unnamed third
inanyof the Floridacasesthathavebeen brought
be orders: of magnitude broaderthose contemplated
matter litde on
10 tis Court's attention. Moreover, whichever way these comparisons break, they
case involving a contract is to determine and give
the facts of this case. The ultimate goal in any
by the defendant,
effct to the {ge intentionofthe contracting paries”™ Unlike the cass cited
at least by the time the cases were decided, the
‘where the parties” intentions were. perfectly plain,
he, at feast at
{atentions ofMs. Giuffe and Epstein concerning the release are anything but clear

! Dean, 336 5.0. 2d at 394.

" De.43,at 12-13.

" Hd.at 13.

ofTampa. Thorton Tomas, PC. 646 50.2421, 282 (Fla. Dist C. App. 1999).
ly
 |

2
is stage. The cases upon which defendant relies are of no assistance in determining hose
- TT SE
© intentions. —

The Dershowitz Argument

Finally, thedefendant neverthelessarguesthtbisinterpretationof theOther Potential
to Alan
Defendants clause is the only reasonable one on the basis of alleged events relating
- — arshowitz, &lawyerand reired Jawprofessor whom Ms.Giuflre hassued fi another case
Defendant assertsthatMs. Giuffve “dismissed her claims against Professor Dershowitz... whenthis
releasewas raised toheras a potential defense.” This, according to Prince Andrew, proves that
{he 2009 Agreement released Mr. Dershowitz and, by parity ofreasoning, the defendant n this ase,
he theory apparently being that both were Other Potential Defendants in the Florida Case.
Duringoral argument theCourt questioned thatargument based onssuggestion that
one of
Mr. Dershowitz was covered by the release in the 2009 Agreement because he has been

Giure v.Dershowitz, No. 19-3371 (LAP).

Tr, Jan. 4,202, at 11:15:20;Dk. 52, 12, 3-4; Dk. 52, at2.1.
The argument ests on th factual praisethat the acquiesced behalf
release was asserted privately cnbacked
of Mir. Dershowitr. toMs. Giufrescounsel, who in tht assertion and
Twit respect to his proposed addition, Ms. Dershowitz, of
in Ms, GiufDre’s case againstfactual
ew battery claim when thratened withcomplaintRule 11 sanctions. That premise is not
Giuffe’s
Supported by anything in Ms.contradicted in ths action. Parof premise
the is
Supportby a cial, andpat by another provisions na document fled in the
notice now is taken. Dk. 32, Ex. Hat 2. Inasmuch 1s
emhowtr ation of which judicial
o stblishing the contents ofthat document, but not uth,
Judicial notice extends onlyt establishes motion i that counsel for Mr.
However, the only thing agreed that the documentthis
for purposes of
“shall nota any time, or for any
Eovanowitz and Ms. Giuffean admission by citer party valkly or invalidity
Purpose, be. consisved #5 or Defendant’ release defense,ofof the the truth or falsity of the
Do mintfr's batery claim 1d. 4
factual predicates thereto.”
 29

he was
Epsci's ttomeys” and therfore was among the “Second Pars” ~in ther words, that
easa OtPoint Defendan, sth dofendont
erly hele epee whee
suggestion that Mr.
now claims that he is. On further reflection and analysis, however, the

Parties” was not necessarily correct.

Dershowitz was covered because he was one ofthe “Second
release, usuallyreferred
Arelease basthreeessential elements: (1) one ‘who gives the
person
025 eleasor; (2) one against whom the releasor gives up or surrenders something, such a
be
ofwhatisbeing released, whiclmay
oo usually being referred 10asa releasee;and (3) description

general (ell claims whatever that the releasor has oF may have against the rleasce) of specific
2, the
(0 a releasor’s cli for damages caused by the relasee’s motor vehicle). In Section
categoryofreleasorsis plainenough: “the First Parties.” Theroalso fs description ofthe efeasees:
(1 the Second Parties and [2] anyotherperson orcnt who could havebeen included esa potential
however, is ‘with the claims against the
defendant (‘Other Potential Defendants’).” The ‘problem,
released. Specifically, Section 2 says that
Second Parties (other than Epstein) that purportedly were

he clams released were cans hat the Fir Pats ver had or may have “against Jeffrey Epstein,
matter, cause, or thing whatsoever
or Other Potential Defendants for, upon, or by reasonof any
the Second Parties (other thanEpstein
..2™ Strikingly, it doesnotsaythatthe First. Parties released
leis.
personaly), as such, from any particular claims at all, whether al} claims or some specific
release — the specification of what claims
Accordingly, Element 3ofthe essential elements ofa

against the Second Parties were being released is missing as 0 the Second Parties. Accordingly,
not
i would be reasonable, indeed, arguably unambiguously clear, that the 2009 Agreement did

” Tr., Jan. 4,202, at 12:24.

" Dkt. 32, Ex. A,at 2 (emphasis added).

 30
release any clams aginst any Second Parties except (1) for Epstein himself” and (2) those Second
pais en Epi hr ion beng SecondPres, cae wih he defnonof
Othe Potential Defendants, whatever that i.
To be sure it might be argued that Section 2 should be read as a broad release ofall
aims that First Prtes had or may have had against ll of the Second Parties notwithstanding its
view of its -
. failure to say that. But that altemative interpretation cannot bethe only reasonable
caning Accord themean; dec 51 SecondPats aS such(Other han Epstein),
{he validity of the ease cannot be decided on tis motion The difficulty the problem present,
however i relevant tothe extent t demonstrates yet agen htthe 2009 Agreement, whateverit vas
.
intended to mean, is riddled with drafting problems and ambigitis.

The 2009 Agreement cannotbese 0 demonstrate, leary and wnambiguously, hat

he paris tended the nsteumentdisely,” “primarily” or sbstanialy tobenefit Prince Andrew.
The existenceof the requisite intent to benefit him, or others comparable to him, i an isu of fact
atcouldnotpropety be decidedon his motion ven defendant fell vithin th easing language,
which tslf is ambiguous, Thas, independent of whether the release language applies o Prince
Andrew, the agreement at a minimum, is “reasonably susceptible to more than one interpretation”
Florida
on the equally important questionofwhether this defendant may invoke 1 As a mater of
Jaw this Cour anmot rewrite the 2009 Agreement to giveth defendant rights where th agreement
docs not leary manifest an nfent 0 create them.

7 we have seen, Epstcin was included inthe deinion of Second Parcs

"Se og Lambe, 680 So. 2030590; Miller, 789 So. 2d at 1097.95.
 an

~~ Ee
lL he Complaint StatesLegally Sufficient Claims —
Ms, Giuffe’s complaint asserts two causes ofaction. Both ae sta law tort clas,
the first for battery and the second for intentional infliction of emotional distress (HIED")-
‘Defendant moves to dismiss both on the theory that plantas notalleged adequately anyviolation
- . - o
© ofthe New York Penal Code.

A Legal Principles
To survive a motion fo dismiss under Rule 12(6)(6), acomplaint must allege fucts
uct to “state lam to relic that is plausible on ts ce” This standard is met whee the
pleaded fctual content” which on tis motion must be assumed to be tru, permits a “reasonable
{ference that the defendant is lable for the misconduct alleged”
A complet need not “ariipate potential afmaive defenses” or “afimatively
plead facts in avoidance ofsch defenses” As i th case with defendants argues predicated
on the 2009 Agreement, the Court may nit dismiss on an affirmative defense unless “the defense
appears on the ficeofthe complaint

"Bull Adanic Cor. Twombly, 50 USS. 544,570 007).

ro aba, 556 US. 662,663 009)
2007)
E30 636,640 0 Cir 2019)
tabasv. Dison, 48034292, seeChilders v. New York & Presbyterian
Toon 36. Supp. 315 (SDNY.
© reine
 »
Bb Analysis
TT The Complain KTegaly Sion
Plaitif’s complaint plainlyallegesprima facie cases ofbatteryandIED under New
ork law. Indeed, defendant docs no diretly contest whether plaintif’s allegations satisfy the
elements ofthose causes ofaction.
- © tosit ondefendant’ lap while he touched her
Theallegation that plaintiff was forced
ofwhichpart(s) of her body
{© state abattery Claiin under NewYork law,regardless
{xsufficient
defendant ulimately s alleged to have touched. To state such a claim, plaintiff need allege only
. hat therewas “bodily contact that thecontactwasoffensive and thatthe defendantintended to make
ho contact without the plaintifF's consent” Contact is offensive if it is “wrongful under all the
reumstances,” whichcertainly i reasonable inference from Ms. Giff allegations Theonly
intent required is an intent to “cause bodily contact that a reasonable person would find
offensive. Any intentional touching effected “or the purposeof satisfying [one's] sexual desires”
or made vith knowledge “tha [plainti] vas a sex-trafficking victim being forced to engage in
soxtal acts with him” would permit a reasonable person to find that th alleged contact was
nappropriat in ll ofthe circumstances, to say nothing of the allegedly forced sex acs of sexual

Leymanv. U.S, Dep'tofHomeland 804 F. Apgx 5,80 24Dept.

Sec. Transp. Sec. Adin,N.Y.24 Ci.
eg Heian. Soto 199 A.D.2d 423, 433, 49 538, 539 (2d
2002).
AD24 33,355 T29 NY-$2d444,4,7445(Ist(dDept.
Messina v. Matarasso,350284ALD34 200) (quoting
Wise, $15,819, 606 N.Y.$1 Dept. 1999).
" tmatrong exrel. Armstrong.Gon Cir,425 P34 126,134
Brookdale Univ Hosp. &MedYS54184, 04
Caaf 345.5107 189m 22a Dept.
 |

3
intercourse
— —
pesufficiency oflaGtP IEDclaim sscilrly apparent. TostiteanIEDclaim
anderNew York law, plaintiff mustalloge “(1 extremeand outrageous conduct;2) nent tocause,
or reckless disegard of a substantial probability of causing, severe emotional diszess; 3) a causal
connection between the conduit and the injury; and (4) severe emotional distress.”
© Defendantdoes notchallenge the complaints sufficiency asto any of these clements.
laias algesevere Anatol iesSHE legES lit vs“letandproximate Tes
of Prince Andrew's criminal acts” She asserts that he “knew or disregarded the substantial
she
Jikelihood that [is] actions would cause Plaintiff severe emotional distress” Aud, although
if itoccurred, .
So alleges in her complaint, it Should go without saying that the alleged conduct,
reasonably could be found to have gone “beyond all posibl bounds ofdecency and i inolerable
in acivlized community.”

"compas
Suto. Fishman, 27 (2d Cir. 1999) cing Howell. New York Pos Co.
164 £34820,24350,
SINY24115, 131,596 N.Y.$ 353(1993)
"compen
a
"am
47: see Chanko. Am.and Broad Companies In, 21 NY 3446,50 56,29 NY.S3¢ 879
3016 ining extreme bounds uae conduct hat which fs extreme degre a3
a sei conmanity” ss atrocious,
fob regardedquotation
of dency, an and and utery
ized marks omited);
intemal (FISICFED, 2021 Wi.
(cations 20-CV-1178
Coyne & Paralympic Comm, No.
1820251,2029(NDALY. Oct. 15,2021)
 3
2 Defendant's ContentionthatthePlaintiffWas Obliged to Plead Specific Facts
CT "Demonstrating Violation ofthe New York Penal LayIs Incorrect —_
Abandoning reference to the causes of action in the complaint, defendant seeks
dismissal on the ground thatplaintiff “has not adequately alleged a violation ofthe New York Penal
Code™ He insists that plaintiff is required to allege “conduct which would constitute a sexial
.
offense as defined in article onehundred thirty ofthe penal law.” ‘The argument selies heavily on
_ theobscrvation lini’ claimswould be time-barred butfor
that theNew York Child Vietims Act
(“CVA”), which revived child sex sbuse claims “tid to an alleged violation of New York criminal
law
Defendant'sview ofthe pleading standard s at odds with the Federal RulesofCivil
Procedure. Rule§ requires only “a short and plain statement of the claim showing that the pleader
is eniitled to relief" on the theory asserted.” Here, the CVA does not create plaintifT’s cause of
action. She is required only to plead facts sufficiento allegebattery and TED. Whether anyofthe
alleged conduct rose toa violationof New York Penal Law goes only to the question whether Ms.
Giufiie's claims are tife-barved = that is, to an affirmative defense. When defendant asserts such
4 defense, it will be bis burden to establish that the claims are untimely. Whatover hurdles the CVA
imately requires plaintiff toclear to defeatastatuteoflimitations defense ave not relevant on this

"basta
"ld quoting nd ding emphasis 0 N.Y. CPLR 214-0).
NY. CPLR 214g Holloway » Holy See, No. 19 Civ. 2195 (NRE), 2021 WL 1791456,
a3 n2 (SDNY. May 5,2020).
7 for ovr a0)
 35
motion”

3. Plaintiff's IED and Battery Claims Are Not Duplicative

as
The defendant argues next that Ms. Giuffre’s IED claim should be dismissed
NewYorkLaw,
duplicativeofhe battery lam. He says this i so because “under well-established
identical damages for each
claims are duplicative when both arise from the same. facts and seek the
—
ee ullegedbreach” Bu Ms. Gufs clamsdoneither.
claim
Defendant's motion misunderstands the two causesofaction. PlaintifF's ITED
Ms. Giuffre
aise, at fast in part, from alleged conduct that forms no element ofher battery claim.
es0witncss the
alleges,among other potentially distinguishing conduc,that the defendant caused
conduct than
abuseofanother victim. “0 That allegation thus alleges injury flowing from different
a plaintiff has set
{he alleged non-consensual physical contact. As elim i not duplicative where

130
to the level of an Article ape
allege that the condust isss defined
Of cours, the complaint doeslimited to sexual misconduct degreeinaAticl 130.20
Sioation, “including but not in Article 130.25, rape inth first abuse n thedefind in Article
Tb ie degree a defined in Arle 130.52, sexual defined in article 130.65,"as
third degree
150.55, Toei touching 4s defined in th first degreea
efi in Article 130.55, and sexual abuse Compl. § 67. There is no colorabe argument that
Supported by her actual allegations. appears “onthe face ofthe complaint” Pani 152
ants atu offmitations defense WL 4847076 (SDNY. Oct. 15,
FSi at 74 of Doe . Baram, 20 Civ. 9522 (ER), 2021 did of
$51 denying motion to disniss ven where complaint nt cite specific provisions
‘Article 130)
Deutsche Bank Nat | quotation
Dit. 31 at24 (quoting(intemal nc. 810 F34 861,
Trust Co. v. Quicken Loans(spying
265 (ad Cir. 2015) citations and marks omitted) New York
aw)
Compl. 139.
 36
forward “substantiating conductthat differs from... other causesofaction,” her ITED clam is not
~~ duplicaiive ofher battery claim. Regardlessof What shareofhet injuries, if any, is ducto battery ~~
committed against he person, her TED claim therefore must be permittedat this stage to proceed
because she has alleged potentially tortious conduct in addition to battery. Moreover, as defendant
admitted during oral argument, the single satisfaction rule would forecloseplaintiff from recovering
more than once for any given harm. - -
- Moresubstantially, he toclaims do not seek identicaleet. Ever thongh plaintiff
seeks damagesoneach claim, her requestedreffdoesnotentirely overlap. To be sure,Ms. Giufre
asserts that the alleged battery caused some measure of “extreme emotional distress” and
“psychological trauma.”Butwhen drawing ll inferences in plaints favor, thecomplaint pleads
facts suicint toallow areasonable jury toreturn a damages awardonemotionaldistress thats over
and above what it might award on battery. As it stands, any risk of duplicative recovery may be
resolved byjury instructions." tis for these reasons that batery and IIED claims routinely proceed

Sclooleraflv. CityofNew Tork, 103 F. Supp. 34.465, 521 (S.D.Y. 2015); see also Cha
+ Donovan, 357 F. Supp. 3d 276, 285-89sex(SD.Y. 2019) (holding a defendant’ text
nesses pressuring; plnto engage in supported a separate IIED claim since that
potentially tortious conduct”was ot subsumed by any theory ofbattery).
on
“Te, Jan. 4,202,22021.
Comp. 565.
See Bender v. City ofNew York, 78 E34 787,793, 794 n.5 (24 Cis. 1996) (concluding that
atleast prt of 1h jury sulle from thebttery— emotional pain andsuffering —is
partofthe injury Suffered fromth emotional injury ort” and suggesting th folowing
Tnguage fora iy instruction to prevent duplicative awards; “Any damage award forthe
cational distress claim must be limited tothe sustained for
compneatof injuryyou find compensated
{his cam, ifany, over andsbove whatever emotional distress you havealready
by your awards or other claims”).
 |

37
in tandem under New York law."

IL The Attack on the Constitutionality ofthe New York Child Victims Act Is Without Merit
The final ground on which defendant moves to dismiss the complaint is that the
VA'sclaim revival provision- in other words, the limited extensionof the statute of limitations
that
for civil claims by child victimsofsexual abuse — is unconstitutional. ‘Specifically, he argues
~~
{fieNewYork StateLegislatureviolated heDueProcessClauseof teNewYork Constituiomwhem
it temporarily revived child sexual abuse clams that otherwise would have bec too ate.
Defendant is not the first litigant to advance this argument, which has been rejected

See e.. Laurie Marie M.v JefireyNo.T.M.18 816 F.3d 214, 227 2d Cir. 2016); Chau at357#27F-
Supp. 34 21 288; Canosa v. Zi, Civ. $115 (PAE), 2019 WL, 498865,
(SDNY. Jan. 28, 2019); Doev. Alsaud, 224 F. Supp. 34 286,295 (SDN.Y. 2016).
See N.Y. CONST. ar. 1,§ 6; N.Y.thatCPLR § 214-5. At oral argument, defendantextended shifsd his
‘round extensively, suggesting formes Governor Andrew Cuomo twice the
vival period fixed by the Legislature fo heactioncommencement of actions covered by the Act
by exccntive onde and that he Governor's as unconstitutional. Tr, Jan. 4. 2022.is
2422.26, This argument is based on an inaccurate factual premise, comes(00 late, and
without meri in any case.
First, this argument surfaced only during oral argument. As new arguments first made in 8
teplybritare oo late it follows necessarly hat the same is truof new arguments ist
‘ised at oral argument
Second, is true tht theGover extended didso only
theoriginal extension period, butheModification
‘once, seeExcoutive Order No. 202.29, Continuing Temporary Suspension and
ofLows Relting fo heDisaster Emergency (May 3, 2020), not twice as defendant claimed,
“9 the Legislature subsequently extended it again. See 2020 Sess. Law News ofonly N.Y. Ch
150 (5. 7082) (McKinney). Thus, the timeliness of plaints suit depends on the
Legislature's action, notthe Governor's.
“Third, he Court sees noandmeaningful distinction between th Legislature's enactmentof the
original fovival statu its later extension ofi. Accordingly, the consttutionaliy ofthe
evivalof theimitations period tur entirly on whether the New YorkLegislature deprived.
Trince Andrewof constitutional thinks not the imitations periodeither generally or
ights by reviving
as applicd to this case. The Court
 38
bas been ected
by every New York state and feral court 10 have encountered it” And it
TT repeatedly forgood reason. - SEARS oo
Drawing primarilyon New York cases from the 1920s and 19505,"defendanturges
only when there
hat “{nleacya hundred yearofprecedent male clear that claim revival is permitted
{san injustice of type that makes plaintiff legally unable fo sue J" Whatever the bisoricel
ofAppeals recently made clea thatthe est For whether
practice mayhavebeen, the New York Court
therevival ——
simply whether
ProcessClauses:
eG Claimerevival statuterns afoul of ieNewYork Due
revival window
statuteis “areasonable measure toaddress aninjusios.”"* The CVA’simited claim
new legal standard
vas a reasonable measure to address an injustice and wel within bounds ofthe
concludedwith respect .
articulated shorty before ts passage. As another judge ofthis Courtrecently
skepticism
10 Ms. Giuffies pending action against Ms. Dershowitz, “New York Couns’ historical
of claim-revival provisions appears to bejust that: historical"
fo revive
Defendant suggests that the Legislature “lacked the constitutional authority

Farrell, 2021 WL 4820251, at *9 3 PC-41 Doe v. PolySept.Prep Country Day Sch,Doe.20-CN-

a coy (S18), 2021 WLMar. 4310891, at #7 (EDN. 22, 2021); PC-41 2071 152
OL 701834, ot #1 (E.D.N.Y. v.Niagara Fall Cty Sch. Dist,
1,2021); PB-36 Doe Torre v. Portvile Sch, No.
NY S54 243, 248 (N.Y. Sup. Cent.
Ct. Niagara Co. 2021); Co. Feb. 21, 2020); ARKS Doc
176 2020 WI 856432,Cir,No.(N.Y.
at 4 Sup. Ct. Cataraugus Ct. Nassau Co. May 11,2020)
st of Rockville S006D10/2019 (N.Y. Sup.
Giere Durshowis, 19-0v 3377 (LAP), 2020 WL2123214, a2 (SDNY.Apr, 2020).

Dk 31, 2124-26.
1d a2s
400, 67
Jn ve World Trade Cir. Lower Manhattan Disaster Site Lig, 30 N.Y.3d 377,
NY.$.3d 547 QO).
Dershoviz, 2020 WL 2123214, ¢2.
 39
thres-
clams” for sexual abuse plaintiffs who have “reached adulthood . within the applicable
the usual statute of =
- of limitations." His argument findamentally is that enforcing
year statute
to sue
imitations tobarclaimsofchild sexual abuse causes no “injustice” where “those whowished
were not bared fromdoingso” solely because they were minors — in other words, where the victims
period
became adults at a time when they could have brought suit befor the statute of imitations
of a -
expired." The Court of Appeals, however, has made clear also that “fin the context
ee elaimrevival tai, here 0 principled way Tor @cour fo test Whether @particular injustices
left
serious’ or whethera particular classofplaintiffs is blameless; such moral determinations are
tothe elected branchesof government”
ns Ms. Gia notes inhor oppositon,a range festive judgments undergind the
include
provison's patent consitutionality, both on its face and a applied to her aims. These
New York's comparatively restrictive limitations period for sexual abuse claims, improved
understanding ofvitims’ barriers o coming forward with those claims, and the imminent threat that
one-year
abuses pose to public safety." Each of these is capable of insulating both the nial
(052
revival window and its subsequent extension from a New York Due Process Clause challenge,
pandernic.
nothing of the latter measure’s relationship to ensuring acess (0justice duringa gobal
As to whether the claim-revival legislation represents a “reasonable measure.”

" bestwaean,
"wan
eve WorldTrade Cir. Lower Manhattan Disaster Sit Lit, 30 N.Y 34.34 400.
"esa.
—
 “©
defendant's most discernable objection i that“the legislature hastilypassed legislation to amend the.
that the ~
“GVA by doubling the claimrevival period fromone year to wo."” “He contends
Legislature's one-year extension was not “reasonable response” in light of the Govemor’s near-
contemporancousexeculive order extending the filingwindowbyfive monthsonaccount ofCOVID-
19. He argues also that there is “no indication” that the New York Court of Appeals “ever [has)
approved ofa legislature's extensionofthe deadline for filing time-barred clans in the middle of
a -
TT theonginalclaimrevival period”
Withorwithout aglobal pandemic, NewYork's modest two-year revival window was
a reasonable measure for remedying justice to vies without reading upon the state
Constitution's Due Process Clause. Notonly wast reasonable, t was modest compared totheclair-
revival measures adopted by other state legislatures in thechildsex abuse context. Numerous states
aveopened revival windows hatwere two years orlongerfrom their inception, someof which were
aterextendedforadditional multiyearperiods." Otherjurisdictions have enacted indefinite claim-
revival windows. And in some of the states that have adopted an age-based approach, Ms.

7 estas.
a
"ee. 2, 10 DEL CoDE§ 8145()Sales, opening two-year window begining in 2007) Seckan
bias of Si. Francis de Sess. Law 15 A34 1247, 1258-59 (Del. 2011) (confirming
ontiuionshiy)s 2013 Mim, Serv. Ch. §9 § 5(0) (amending MINS. SIAT.§
beginning in 2013, KE period); HAV.N-W.2d
$14,073) (opening three year windowconstitutionaity v. Hoffman, 452
REV.
309,513-14 (Mins. 1990) (confirming of inital revival
Stan, §657-1.8(2)b) (extending orginal two-year window eight years).
Ge eg 12VE STAT, ANN. § S220 7 GCA. § 130116)
 4
Certainly, eachofthose
Giuffve’s claims would have remained timely for at east another decade.
constitutional ‘backdrop. Bit each is ——
h evival statutes was passed againstthe enacting stafe’s unique
among the most
relevant to sho thal the measures here selected bytheNew York Legislature were
bis motion. Itis
ailored and most mindful of the due process concerns defendant emphasizes in
animaling
difficult o imagine substantially narrower measures capableofaddressing the injustices
adopted a
he GVA. ndocd, our atetion as not ben called o any sate or tritory that ever has
oul abe cm evivalwindow shorer bamone year
harm
Defendant's observation that the CVA revived claims for those who suffered
the New York age of
25a result of sexual abuse when they were under the age of eighteen, when
™ There
consent for other purposes ows seventeen, does ot bea onthe CVA constittiolity.
her consent.
are many ways aplaintiffmay establish that a sexual act was committed without biso
of consent is
Such acts also may be nonconsensual on more than one legal theory. True, lack
at the ime of the
established as matterof law for individuals who were under the ageofseventeen
who were over
offense. But that ft says nothingof the reasonableness ofreviving claims ofothers
cases can be
seventeen but less than eighteen when they were abused. Lack of consent in such
to bis assertion,
established at least by physical force or actual or implied threats. Contrary
always greater in
defendant's concerms over “false memories” and other evidentiary matters are not
duress. Even
cases im which the alged victim clais that he or she acquiesced as result ofsch

ee eg, 9RLGEN. Laws§4C § 9-151 (opening window unl age 53 as against perpetrators):
on Lawsch.260 (opening window unl age 53 as against perpetrators); Srey
revie, 41 N.E.3d 732, 739-43 (Mass. 2015) (confirming constitutional).
See Dit s2at8.
i
 2
where a claimant can establish lack of consent as a matter of law, other evidence — including
- ‘Subjective evidence— oftenis Teqitedo prove theGonduct that tually ocourrd. Defendants far
reaching speculation about what evidence will or will not be relevant to the issueof consent, both in
his case and in others like it, is no basis for distinguishing between claims brought by victims who
were under seventeen and those where were under eighteen. The CVA's creation of a narrow
isneither more or
windowforallowing proviously time-barred child sexual abuse claims toproceed
Yessreasonable (oFaving set theupperageTimitforthose Whobenefit front thatwindow arage
eighteen rather than seting it at the legal ageofconsent, seventeen.
Lackingpersussive legalauthority withwhich o question the CVA’s onsttutionality,
defendant's motion als back anto doctrinal anachronism and nspposit authority on la revival
at common law. Accordingly, as another court in our Circuit has put it, “while [hs] argument
regarding unconstitutionality is creative, itis ... without merit"

7%. Defendant Is Not Entitled to a More Definite Statement. He ill Get the Detail He Secks
During Discovery.
Defendant's altemative motion for a more definite statement s similarly meritless.
of
‘As defendant correctly observes, Rule 12(¢) affords relief where the complaint “is so vague
aonbiguous that the [defendant] cannot reasonably prepare a response.” That Rule, however,
entitles movants to a more define statement only where the complaint is so vague or ambiguous as

"See DI. 31 a126 (lying on Zumpano . Quin, 6 N.Y-3d 6662006) to suggest hat the
‘CVA revival provision goes beyond “th scope of. legislative authority”),
pds poe 021 WL 1918S
" rmravee
 Fe
tobe unintelligible.”
Ms. Gidfire’s complaint is neither “unintelligible” for“vague” nor “ambiguous. It ~~ -
oo
alleges discrete incidentsofsoxual abuse in particular circumstancesa thre identifiable locations.
Itidentifics to whom it attributes that sexual abuse.
Defendant nevertheless holdsout thathecannot reasonablyprepare response because
plaintiffhas not described “what purported sexual contactoccurred... whenand ‘where the incident
to the degree
occured, or theforcible compulsionshewas derdue toexpressor implied threat”
of specificity that he would like.” Whill he understandably sceks more detail about the precise
details of plant's clims, he will be able to obiain that deal during prtdiscovery.”
Moreover, defendant’ asseton hat he cannot reasonably prepare & response 10 plantf’s
allegations plainly contradict the content of his moving papers, in which he denies Ms. Giuftre's
allegations in no uncertain terms.”

Conclusion
For the foregoing reasons, defendant's motion to dismiss the complaint or fora more
definite statement is denied in al respects. Given the Court’ limited taskofrling on this motion,

"See Kokv. First Unum Lf Ins, Co. 154. Supp 28 777, 781-82 (SDNY, 2000): Kelly
WLI. Cool, 145 ERD. 32.35 (SDNY. 1992), aff'd, 23 F.3d 398 Cd Cir. 1999).
"pasta
7 See ei. Casella. fugh O'Kane Elec, Co, No.00 Civ. 2481 (LAK), 2000 WL 1530021,
at*1 n2 (SDN.Y. Oct. 17,2000).
Dke31 atl Prince Andro neversexual abused asculed ie. Ho nail
denies Giuffe's false accusations against him.).
 “
nothing in this opinion or previously in these proceedings properly may be construed as indicating
ofthe parties.
“aview with respect fo the truthofthecharges or couniercharges or a 10the intention -
in entering into the 2009 Agreement.
SO ORDERED.

Dated: Januaryl 1, 2022

Lewis, f a. |
United States District Judge