¶
VIA ECF¶
The Honorable Lorna G. Schofield District Court Judge United States District Court Southern District of New York 40 Foley Square New York, NY 10007¶
Re: v. Darren K. Indyke, Richard D. Kahn, & Ghislaine Maxwell 19-10475-LGS-DCF
¶
Sigrid S. McCawley Telephone: (954) 377-4223 Email: smccawley(4bsfIlp.com¶
Defendant Ghislaine Maxwell shall file a responsive letter by November 23, 2020.¶
So Ordered.¶
Dated: November 18, 2020 New York, New York C.¶
UPIMM STATES DISTRICT JUDG1¶
Dear Judge Schofield:¶
Pursuant to Individual Rule III.A.1, Plaintiff requests a pre-motion conference on her request to dismiss this action with prejudice pursuant to Rule 41(a)(2). Defendants Darren K. Indyke and Richard D. Kahn, the executors of the Estate of Jeffrey E. Epstein (the "Estate"), consent to dismissing this action with re'udice with each party to bear its own fees and costs. Defendant Ghislaine Maxwell opposes request.¶
On June 22, 2020 Ma istrate Judge Freeman stayed this case at and the Estate's request so that could participate in the Epstein Victims' Compensation Program (the "Program") and conserve the parties' and the Court's resources while doing so. The Program, the terms of which counsel for the Estate, the victims, and the Attorney General of the U.S. Virgin Islands negotiated at length over the course of several months, "is a voluntary, independent Program that has been established to compensate and resolve the claims of victimssurvivors of sexual abuse by Jeffrey Epstein." Independent Epstein Victims' Compensation Program Protocol at I (May 29, 2020), available at https://ww'anvcp.comidocuments/4. Nationally recognized claims administration expert Jordana H. is the Administrator of the Program. Id.¶
Prior to agreeing to participate in the Program, victims (including were ensured that the Program would "in no way be administered, controlled or overseen by the Estate" and that decisions pursuant to the Program would not be "subject to review or modification in any way by the Estate or any other party or entity." Id. at I. Further, all compensation offers and any information submitted to the Program are confidential. Id. at 6, 8. In order to receive payment, however, a victim must first (1) execute a form release waiving all of the victim's rights to assert claims against the Estate, any entities owned or controlled by the Estate, and any employees of the Estate, Mr. Epstein, or any entities owned or controlled by the Estate, among others and (2) dismiss with prejudice any existing lawsuits against the Estate or related entities and individuals. Id. at 3, 7.¶
On June 26, 2020, [REDACTED] submitted a claim to the Program. On August 27, 2020, [REDACTED] with an offer of compensation, which [REDACTED] accepted on October 5, 2020. [REDACTED] also executed a form release, releasing the Estate, any entities owned or controlled by the Estate, and any employees of the Estate, Mr. Epstein, or any entities owned or controlled by the Estate, among others, in exchange for her offer of compensation. On October 14, 2020, [REDACTED] informed the Estate and Maxwell that she had accepted an offer of compensation and asked the Defendants to stipulate to a dismissal of this action with prejudice pursuant to Rule 41(a)(1)(A)(ii) with each party to bear its own fees and costs.¶
The Estate agreed to the stipulation, but Maxwell refused because she insists on obtaining an "executed copy of the actual release" that [REDACTED] signed before agreeing to the stipulation of dismissal. Although Maxwell was provided with a copy of the form release nearly five months ago, she was not provided a copy of [REDACTED] executed release because it contains confidential information as to the amount of compensation that [REDACTED] has accepted. And although the form release contains a provision that would allow [REDACTED] to propose the carve out of an individual from the release subject to [REDACTED] counsel has already informed Maxwell's counsel that [REDACTED] executed release does not carve out Maxwell. Maxwell is not entitled to any further information about [REDACTED] participation in the Program—[REDACTED] cannot be required to waive the confidentiality that she was promised when she decided to participate in the Program.¶
Maxwell asserts that she cannot agree to dismiss [REDACTED] claims against her (with prejudice) because, according to her, she may be entitled to fees and costs because she believes [REDACTED] claims against her are without merit. The Court rejected this notion, however, at the pre-motion conference held for Maxwell's anticipated motion to dismiss [REDACTED] complaint. At that conference, the Court observed that Maxwell's motion to dismiss did not "strike [the Court] as . . . meritorious," and noted that it would not be "a good use of anybody's time for us to pursue [the] motion." Tr. of April 16, 2020 Teleconference at 3:23-24, 5:10-11. Maxwell ignored the Court's guidance, however, and filed her motion anyway, thus deciding for herself to incur unnecessary expenses. Her contention that she might somehow be entitled to request fees and costs for her own frivolous motion practice is simply not tenable. See Colombrito v. Kelly, 764 F.2d 122, 133-34 (2d Cir. 1985) ("attorney's fees have almost never been awarded" when a lawsuit is voluntarily dismissed with prejudice under Rule 41(a)(2)).¶
Rule 41(a)(2) provides that "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2). In light of [REDACTED] successful participation in the Program, dismissing this case with each party bearing its own fees and costs is proper. There are no counterclaims, and Maxwell should not be allowed to prevent [REDACTED] from finalizing her successful participation in the Program, which was the sole reason that Judge Freeman stayed discovery in this case. Dismissal of this case also preserves the resources of the parties and the Court, as [REDACTED] has expressed a clear desire to resolve this matter through the Program and not through continued litigation.¶
For the foregoing reasons, respectfully requests that the Court enter an order dismissine this case with prejudice. with each natty to bear its own fees and costs.¶
Respectfully submitted,¶
/s/ Sigrid McCawley¶
Sigrid S. McCawley, Esq.¶
cc: Counsel of Record (via ECF)¶