Beyond The Horizon

The Memorandum Of Law In Support Of The Cross Motion Against USVI (Part 2) (7/12/24)

A "Memorandum of Law in Support of Plaintiffs’ Cross-Motion for Leave to Amend Pursuant to FRCP R. 15(a)(3) and for Discovery Addressed to Jurisdiction and Venue" typically involves the following components:

Cross-Motion for Leave to Amend:
- FRCP Rule 15(a)(3): Refers to the Federal Rules of Civil Procedure, specifically Rule 15, which governs amendments to pleadings. This rule allows a party to amend its pleading with the court’s permission or the opposing party’s written consent.
- Purpose: The plaintiffs are seeking the court’s permission to amend their original complaint or other pleadings. This could involve adding new facts, claims, or correcting errors.
Discovery Addressed to Jurisdiction and Venue:
- Jurisdiction: Refers to the court's authority to hear a case. Plaintiffs may seek discovery (i.e., the pre-trial process where parties obtain evidence from each other) to gather information supporting the court’s jurisdiction over the defendants.
- Venue: Refers to the geographic location where the lawsuit is filed. Plaintiffs may also seek discovery to establish that the chosen venue is proper.

Key Points of the Motion:

Supporting Arguments: The memorandum will present legal arguments and precedents supporting the plaintiffs' request to amend their pleadings. This could involve demonstrating why the amendments are necessary and how they will not prejudice the defendants.
Discovery Needs: It will outline the specific discovery the plaintiffs seek to gather evidence relevant to jurisdiction and venue issues. This might include interrogatories, depositions, or requests for documents.
Legal Standards: The memorandum will discuss the legal standards under Rule 15(a)(3) for granting leave to amend and any relevant case law that supports the plaintiffs' position.

Importance:

Legal Strategy: Amending pleadings can be crucial for refining legal strategies and ensuring that all relevant facts and legal arguments are presented.
Ensuring Proper Jurisdiction and Venue: Properly addressing jurisdiction and venue is essential for the court's ability to hear the case and for ensuring a fair trial location.

In this episode, we continue our dive into the lawsuit between the survivors of Jeffrey Epstein and the United States Virgin Islands.

(commercial at 9:21)

to contact me:

bobbycapucci@protonmail.com

source:

gov.uscourts.nysd.610915.94.1.pdf (courtlistener.com)

Duration:: 16m
Broadcast on:: 12 Jul 2024
Audio Format:: mp3

an official message from Medicare. A new law is helping me save more money on prescription drug costs. Maybe you can save too. With Medicare's Extra Help Program, my premium is zero and my out-of-pocket costs are low. Who should apply? Single people making less than $23,000 a year or married couples who make less than $31,000 a year. Even if you don't think you qualify, it pays to find out. Go to ssa.gov/extrahelp. Paid for by the U.S. Department of Health and Human Services. My exercise program can help get you into a routine that works for you. Keep in mind, managing butch sugar also takes the right. Diet. Hi, I'm celebrity chef Franklin Becker. Ever since I was diagnosed with type 2 diabetes, I've adapted my cooking style without sacrificing flavor. If you want to learn more tips about diet and exercise, visit MyType2Transformation.com. What's up, everyone, and welcome back to the Epstein Chronicles. In this episode, we're picking up where we left off with a memorandum of law and support of plaintiff's cross-motion for leave to amend pursuant to FRCP, R15A3, and for discovery addressed to jurisdiction and venue. Point 2. This court should exercise its broad discretion and direct discovery concerning the scope and extent of defendant's activities in New York. In the event that the court finds plaintiff's allegations in the SAC concerning jurisdiction and/or venue lacking or to forestall yet another round of motion practice by defendants, plaintiffs respectfully request an opportunity to conduct discovery addressing these issues. In general, a district court may allow discovery to aid in determining whether it has personal jurisdiction over a defendant. Winston & Stran versus Dong Wan C's company, 2002 WL-314-44625 at 5, SDNY November 1st, 2002, whereas here, jurisdictional and venue-specific discovery lies exclusively in the possession of the movements, the district court orders discovery concerning these issues. For example, in Winston versus Stran and Dong Wan Security Company LTD, O2, CIV-0183, RWS, 2002 WL-314, 444, 625 at 5, SDNY November 1st, 2002, the court granted leave to conduct jurisdictional and venue-specific discovery. Pre-motion discovery should be permitted where the facts necessary to establish personal jurisdiction and propriety of venue lie exclusively within the defendant's knowledge. C. Wells Fargo & Company versus Wells Fargo Express Company, 556, F.2D-406, 430, N.4, 2nd Circuit, 1977, Guilfan versus Tanner Motors LTD-339, F.2D-317, 323, 2nd Circuit, 1964. Here, there is an issue of whether Dong Wan is doing and/or transacting business in the state of New York and this judicial district. Discovery will lead to a more accurate judgment than one made solely on the basis of affidavits in response to the motion. C. Peterson versus Spartan Industries Inc. 33, NY2D-463, 354, NYS2D-905, 310, N.E2D-513, 1974. C.F. Scott versus Proclaim AM Inc. 14 CV, 06003, D.R.H., A.R.L., 2015, W.L., 38, 5, 1243, at 5, Eastern District, NY, June 22nd, 2015. Moreover, unlike in the cases cited by the plaintiff, where a further jurisdictional discovery was warranted, here there is no dispute as to the fax material to the determination of the jurisdiction. For example, in Wafio's mock court versus Newcoil Industrial Company, one of the defendants submitted in affidavit containing several alleged facts that were within its exclusive knowledge, including that it allegedly did not target the New York market. 2004, W.L. 162, 7168 at 5, STNY, July 21st, 2004, because the affidavit contained facts within the defendant's exclusive control and raised further questions which were not answered by the affidavit, the court allowed limited jurisdictional discovery concerning the defendant's New York contacts. In UNICE Systems, LLC versus United States Tennis Association, 350 FSUPP, 3D-143, 159-160, Eastern District of New York, 2018, the court granted the plaintiff's request for venue-specific discovery reasoning, as plaintiff has requested the opportunity to conduct a limited venue-specific discovery and seeks an evidentiary hearing on venue. The court grants plaintiff limited discovery as to whether these defendants have an established place of business in the Eastern District of New York under the supervision of the magistrate judge assigned to the case. Allied Dynamics Corporation 965 FSUPP, 2D at 288, citing Murphy versus Schneider National Incorporated, 362, F.3D-1133, 1139, 9th Circuit, 2004. Stating that if there are any disputed facts relevant to determining venue, the district court may exercise their discretion to determine whether to hold an evidentiary hearing to resolve the dispute. The motions of the Morgan defendants and Rosetti Incorporated to dismiss for improper venue are denied without prejudice to renew. It's well established that a plaintiff need not first make out a prima-fossy showing of personal jurisdiction as a prerequisite to conducting jurisdictional discovery. Texas International Magnetic Incorporated, versus BASF, 31, Federal Appendix, 738, 739, 2nd Circuit, 2002. Although plaintiffs did not show the defendant his subject to the court's jurisdiction, we believe they are entitled to jurisdictional discovery to develop the factual record requisite for such a showing. Accordingly noted above, the district courts holding that any request by plaintiffs to conduct jurisdictional discovery must be conditioned upon plaintiff versus establishing a prima-fossy case for jurisdiction was clear error. Indeed, such a requirement would render jurisdictional discovery pointless. In Danis Feller vs. Flexi, North America, LLC, 22-CV-6608-SIL, 2024-WL-640025, at 12 and 13, Eastern District of New York, February 15, 2024. The court reasoned as follows in granting such discovery. Where a plaintiff has established a genuine issue of jurisdictional fact, the court may in its discretion order jurisdictional discovery. CRSM Production Court vs. Friedman, 643-F.SUPP2D382, 402-SGNY2009, 387-F.APPX72, 2nd Circuit, 2010. Moreover, the district court has considerable latitude in devising the procedures it will follow to ferret out the facts, pertinent to jurisdiction. Brody, Cat Management, LLC, vs. Benamar, 944, F.3D, 436, 446, 2nd Circuit, 2019. Quoting foremost, McKesson, Inc. vs. Islamic Republic of Iran, 905, F.2D, 438, 449, D.C. Circuit, 1990. Here the court concludes that Danis Feller is entitled to limited jurisdictional discovery. For one, plaintiff alleges that Bogdan uses Amazon to sell its products in New York, CPSAC at 19 and 20, and the only facts rebutting that allegation came from the declaration of Flexi and Bogdan's general managers. C. Decker Declaration, 4 and 5, Cruz Declaration at 13. Discovery, however, may reveal evidence to the contrary, such that personal jurisdiction is proper over Bogdan, under NY, CPLR, Section 302, A&3, C & Viral Care Text, 2012, WL, 2001, 443, A&3, Quoting Bacheto, 539, F.3D, at 1019. With respect to Flexi, Danis Feller also may uncover further facts regarding Flexi's sale of products to Petco, such that personal jurisdiction is proper under NY, CPLR, Section 302, A&1, in addition to A&3. Further, Danis Feller has asserted that Flexi's sole member, Baedal Lungus, and Bogdan are in fact the same entity, and that such a sufficient level of control exists, such that personal jurisdiction over Bogdan is appropriate. CPSAC 11 and 1. C Lindy 262, FRD at 142. Concluding courts can acquire personal jurisdiction over parents based on subsidiary presence in New York where the degree of control is considerable. Although Bogdan asserts that Flexi is not a subsidiary, C. Cruz Declaration at 14, discovery may uncover evidence to the contrary. As such, Danis Feller may obtain jurisdictional discovery regarding the relationship between Baedal Lungus, Bogdan and Flexi. Accordingly, plaintiff's motion for leave to conduct jurisdictional discovery is granted. Here, at a minimum, plaintiff's have raised allegations sufficient to allow plaintiffs to engage in limited jurisdictional discovery as to whether there is personal jurisdiction over defendants. It is indisputable that the evidence pertaining to the activities of those involved in the scheme and/or defendants actions concerning Epstein has been shielded from public view as a result of a broadly applied protective order. It is further undisputed that plaintiffs, the victims of sex trafficking, lacked any access to the evidence proving their claims. Until plaintiffs are granted access to the documents in that action pursuant to the same protective order or discovery herein, their hamstrung by the successful efforts of others to shield the protectors of the sex trafficking enterprise from the public. An official message from Medicare. A new law is helping me save more money on prescription drug costs. Maybe you can save too. With Medicare's extra help program, my premium is zero and my out of pocket costs are low. Who should apply? Single people making less than $23,000 a year or married couples who make less than $31,000 a year. Even if you don't think you qualify, it pays to find out. Go to ssa.gov/extrahelp. Paid for by the U.S. Department of Health and Human Services. Accordingly, at the very least, plaintiffs should be allowed to engage in limited discovery concerning issues relevant to whether there is personal jurisdiction, such as whether and the extent to which defendants conducted business with Epstein and his companies in New York, visited him in New York for the purpose of securing financial support from his sex trafficking enterprise and on properties in New York. C. Winston 2002 WL 314, 44, 625, at five, allowing a limited jurisdictional discovery where there is an issue whether defendant is going and/or transacting business in the state of New York and discovery will lead to more accurate judgment than one made solely on the basis of affidavits. Defendants can hardly deny that this case is unique in that the evidence pertaining to Epstein's activities in the USVI and New York as well as defendants and those others who conspired with them to continue the enterprise is largely beyond the public's purview. For this reason, plaintiffs have been forced to properly plead allegations upon information and belief, which is in accord with federal law. As the Second Circuit explained in Arista Records, LLC v. Doe 3, 604, F3D, 110, 120, Second Circuit 2010, such pleading is proper where the defendants are exclusive possessions of key facts. The Twombly Plausibility Standard, which applies to all civil actions, C. Ickball 129, Supreme Court, at 1953, does not prevent the plaintiff from pleading facts alleged upon information and belief where the facts are within the possession and control of the defendant, C. E. G. Boykin v. Keycourt 521, F.3D 202, 215, Second Circuit 2008, or where belief is based on factual information that makes the inference of culpability plausible, C. Ickball 129, Supreme Court at 1949. A claim has plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The Twombly Court stated that asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage. It simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal behavior. 550 U.S. at 556, 127, Supreme Court, 1955. Consequently, plaintiff asked this court order such discovery just as the court did in Patel v. Kline Gessel Studio, 2023, WL, 828, 0498 at 1, S. G. N. Y., November 30, 2023. There, the plaintiff made the same request, which was granted with the court reasoning. In his opposition to the motion to dismiss, plaintiff took the position that the court should order jurisdictional discovery if it found plaintiff showing to be insufficient to find that the court has personal jurisdiction over defendants and that venue is proper in this district. On November 20, 2023, I held a telephonic conference during which I informed the parties that based on my preliminary review of their motion papers, I believe that jurisdictional discovery would be appropriate because there appeared to be a genuine factual dispute about whether the court has personal jurisdiction over the defendants and whether the venue is proper in this district. C. A. P. W. U. v. Potter, 343, F.3D, 619, 627, 2nd Circuit, 2003. Courts possess considerable latitude in devising the procedures. They will follow to fair it out, the facts pertinent to jurisdiction. Internal quotation marks and citations omitted. C. Also, Wilson and Wilson Holdings, LLC, v. D. T. H. L. L. C. 22-C. V-02941, P. G. G. S. D. A. 2023, W. L. 344, 9163 at 3, S. D. N. Y., May 15, 2023. I advise defendants that they could choose to withdraw the motion to dismiss without prejudice to refiling it after the close of the jurisdictional discovery, but defendants have declined to do so. C. 1,127, 23 status report, ECF-45. Plaintiff now argues that jurisdictional discovery is unnecessary. In light of my preliminary view that jurisdictional discovery is appropriate here, I'm providing Plaintiff with the opportunity to take such discovery and to make a supplemental filing and connection with defendants' motion to dismiss on grounds of lack of personal jurisdiction and improper venue. Accordingly, Plaintiff may propound up the five document requests covering personal jurisdiction and venue in this district, and he made the pose "guestal" for up to two hours on those subjects. In some, Plaintiffs are entitled to limited discovery, targeting and aducing evidence establishing jurisdiction and venue. Conclusion. For the reason stated here in, Plaintiffs respectfully request that this court enter an order granting Plaintiff's motion for leave to amend, deeming the SAC timely filed, and/or for jurisdictional and venue-specific discovery, together with such other and further relief as this court deems just inappropriate. Dated May 8, 2024, and this was signed by Jordan Mersan. All right, well, that's going to do it for this document as a whole, and we're just going to keep it moving. We have plenty more to get to, so with that said, all of the information that goes with this episode can be found in the description box. A new law is helping me save more money on prescription drug costs. You may be able to save it, too. With Medicare's Extra Help Program, my premium is zero, and my out-of-pocket costs are low. Who should apply? Single people making less than $23,000 a year, or married couples who make less than $31,000 a year. Even if you don't think you qualify, it pays to find out. Go to ssa.gov/extrahelp paid for by the U.S. Department of Health and Human Services.