## SHER TR EMONTE LLP VIA ECF The Honorable John G. Koeltl United States District Court Southern District of New York 500 Pearl Street New York, NY 10007 > Re: Jane Doe 43 v. Epstein a al., No. 17 Cr/. 616 (J0K) Dear Judge Koeltl: We represent non-party IIaddon, and which represented Defendant Ghislane Maxwell ("Maxwell") in P.C. laddon v Maxwell, Case No. 15-cv-7433 (RWS) (S.D.N.Y.) (the \`=l Action"). We write to respectfully request an opportum to oppose Plaintiff's motion for alternative service on Maxwell through Haddon or to seek reconsideration of the Court's order granting that motion, to which fladdon was not provided notice or any opportunity to respond. October 30, 2017 4 cowfiCA-&-te wt cc- 96 A/6O pr ivEsOni /vov66-40- it no i 4 1 5:00/r • SO A. 60 Aar. - S 0 4 107 # Procedural Background As the Court knows counsel for Plaintiff in this action were also counsel for another plaintiff in the Action, filed in 2015. Haddon represented Maxwell as a defendant in that case. Maxwell and the plaintiff in that case reached a settlement, and the claims against her were dismissed with prejudice on May 25, 2017, see So Ordered Joint Stipulation for Dismissal, v Maxwell, Case No. 15 Civ. 7433 (RWS) (S.D.N.Y. May 25, 2017), ECF No. 919. This action before Your honor has been pending since January 26, 2017. See Complaint, Dkt. No. I. On May 11, 2017, Plaintiff filed a motion seeking an additional 90 days to serve Maxwell (Dkt. No. 34), which the Court granted on May 12, 2017 (Dkt. No. 36). On August 10, 2017, Plaintiff's last day to serve Maxwell, Plaintiff filed a motion for alternative service pursuant to Federal Rule of Civil Procedure 4(e)(1) and New York Civil Practice Law and Rules ("CPLR") § 308(5) (Dkt. No. 55) (the "Alternative Service Motion"). The Court issued an order granting the Alternative Service Motion on September 29, 2017 (the "Order"). Thereafter, Plaintiff handdelivered a copy of the Summons and Amended Complaint in this matter to Haddon offices in Denver, Colorado on October 9, 2017. USOC SONY DOCUMENT ELECTRO\*IICALLY FILED DOC# DATE FILED: ii' 3 -1'! lion. John G. KoeItl October 30, 2017 Page 2 Haddon had not been served with the Alternative Service Motion when onginally filed, and had no notice of it until after the Court entered the Order. Because the Order places ilarldon in the unusual position of being compelled to accept service beyond the scope of its engagement or the client's authorization, and because certain relevant information was omitted from the Alternative Service Motion, Haddon engaged my firm to submit this application for relief from the Order. ### Plaintiff's Factual Assertions Were Incomplete and Misleading Plaintiff made numerous factual assertions that Haddon would have challenged had it been served with a copy of the Alternative Service Motion when filed. First, Plaintiffs counsel neglected to inform the Court that Maxwell — described throughout the press as a "British Socialite" - owns a residence in London. Indeed, Maxwell's London home was the subject of motion practice in the Action, in which the same counsel who represent Plaintiff here sought disclosure as to what they called "Maxwell's . . . home."' Maxwell's residence in London has also been discussed in publicly available documents in yet another lawsuit= We respectfully submit that the existence of a known residence on which service had not been attempted would have been fatal to the Alternative Service Motion. Second, Plaintiff's counsel asserted lilt is clear" that Maxwell was purposefully and intentionally evading service," Alt. Serv. Mot. ¶ 2, even though Plaintiff admits not attempting any service that could have been evaded. Plaintiff's counsel only describes one "attempt" at service at a Manhattan address nine days before their extended deadline expired. Plaintiff and her counsel abandoned the attempt when they realized the business address, supposedly affiliated with Maxwell, turned out to be a UPS store. See Alt. Serv. Mot. 11 6, 7. Nothing in Plaintiff's submission, however, evidences that Maxwell was actually evading service, as there was no attempt at service to evade. Third, Plaintiff's counsel not only ima coed that Maxwell was evading service, they baselessly attempted to link Haddon to such efforts. Plaintiffs counsel submitted that Maxwell "has instructed her counsel not to accept service, and has also instructed her counsel not to disclose her whereabouts in response to inquiries related to effectuating service in this case." Alt. Serv. Mot. 9 4. Plaintiffs counsel had no conceivable basis to make such assertions about communications between Haddon and Maxwell; certainly, Haddon never informed Plaintiff's counsel of 'See Plaintiff Motion to Compel the Production of Documents Subject to Improper Objections at 22. v Maxwell, No. 15 Civ. 7433 (RWS) (S D.N Y Feb. 26, 2016), ECF No. 404. zSee also lane Doe #3 and Jane Doe #4's Motion Pursuant to Rule 21 for Joinder in Action at 5, Jane Doe #1 and Jane Doe #2 v. United States, No. 9:08-cv-80736 (KAM) (SD. Fla. Dec 30 2014). ECF No. 279 (referencing "Gluslane Maxwell's apartment" in London) See also, e.g., Guy III & Tom Leotard. Why ARE the Rich and Powerful So an Thrall to Ghtlsaine Maxwell', The Daily Mai corn (Jan. 9, 2015, 8.44 PM). httrftwww.dailymail.co.uldnewsAutele-2904115/Ghislame-Maxwell•s-link-sex-scandal-courtpapers-involving-Prince-Andrew-Jeffery-Epstein-don4-stop-having-amazing-social-connections html. Hon. John G. Kochi October 30, 2017 Page 3 an such instructions. Moreover, although still counsel of record for Maxwell in the Action and attending to post-termination matters (i.e., confidentiality issues), Haddon has no occasion to know Maxwell's current whereabouts. #### The Alternative Service Motion was Not Well Founded as a Matter of Law Plaintiffs Alternative Service Motion was based on Fed. It Civ. P. 4(c) and CPLR § 308(5), neither of which supported alternative service in light of the facts noted above. Rule 4(e)(1) provides for service on an individual by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed. R. Civ. P. 4(e)(I). In turn, CPLR § 308(5), the New York state law provision governing service of summons, provides for alternative service, but only upon a showing that "service is impracticable" under conventional means of service,3 and even then, only "\[iln such manner as the court, upon motion without notice, directs." N.Y. C.P.L.R. § 308(5) (emphasis added); see also Bozza v. Love, No. 15-cv-3271 (LGS), 2015 WL 4039849, at \*1 (S.D.N.Y. July I, 2015). "Though the impracticability standard is not capable of easy definition, a plaintiff seeking to effect alternative service must make some showing that the other prescribed methods of service could not be made." Bozza, 2015 WL 4039849, at \*1 (internal citations omitted); see also Markoff v. S. Nassau Cray Hosp., 61 N.Y.2d 283, 287 n.2 (1984) (finding a "conclusory affidavit stating that service was impracticable . . . was insufficient to justify the order of expedient service under CPLR 308 (subd 5)"). Preza v. Sever's Gourmet, 212 A.D.2d 765, 765 (2d Dep't 1995) (finding alternative service was improperly granted). In particular, courts have found the impracticability standard unsatisfied where the defendant could have been properly served in a foreign country. See, e.g., Yamamoto v. Yamamoto, 43 A.D.3d 372, 373 (1st Dep't 2007) (where defendant was located in Japan, in "the absence of any evidence that service in that manner is 'impracticable,' the court properly denied plaintiff's request, pursuant to CPLR 308(5), for an order directing that service on defendant be effectuated by personal delivery of process upon his attorneys.' ).4 Here, Plaintiff has failed to make the requisite showing of "impracticability" in order to justify a court-ordered alternate method of service. Plaintiff's counsel cites "intemet inquiries" without elaboration. Plaintiff's counsel further cites a single "attempt" at service — initiated only nine days before the expiration of Plaintiffs deadline — — — — 'Specifically, substitute service is available only where it is impracticable to serve an individual under CPLR § 308(1), (2), 01(4) — the provisions for personal service, leave-and-mail, and nad-and-mail See N.Y. C.P L.R. § 308(5) 'Pursuant to Fed.R Civ P. 4(1), an individual may be served in a foreign country - by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents" (the "Hague Convention'). Fed. R. Civ. P 4(f) The United Kingdom and the United States are both signatories to the Hague Convention

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to serve Maxwell, and then abandoned. Plaintiff failed to inform the Court of Maxwell's residence in London, and has never purported to have attempted ser=vice there. In shert, Plaintiff should not have asked the Court to enlist Maxwell's counsel as an agent of service, in Geu bona fide cliliieiiteTTOrtsgtrysher.

Conclusion

For the reasons set forth above, we respectfully request that the Court withdraw its Order, or permit Haddon an opportunity to oppose Plaintiff's Alternative Service Motion or to file a motion to reconsider. We further respectfully request that any deadlines to formally answer or respond to the Complaint be held in abeyance pending the Court's resolution of Haddon objections to service.

Respectfully submitted,

/s/Kimo S. Peluso

Kimo S. Peluso

cc: All counsel of record (via ECF)

Haddon, & P.C. 150 E 10th Avenue Denver, CO 80203