EFTA01085328.pdf

, 04/04/2012 16:33 MOORE DODSON RUSSELL PAGE 02/23 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS & ST. JOHN * * * JEFFREY EPSTEIN, et al., ) ) ) Plaintiffs, ) ) v. ) NO. ST-10-CV-443 ) FANCELLI PANELING, INC., and ) J.P. MOLYNEUX STUDIO, LTD., ) ) (CARROLL, I) Defendants. ) ) ANSWER OPDEFENDANT FANCELLI PANELING, INC., TO PLAINTIFFS' SECOND AIMORO COMPLAINT, WITS COUNTERCLAIM AND CROSS-CLAIM COMES NOW Defendant, FANCELLI PANELING, INC., by and through its undersigned counsel, to state the following facts and circ ces in Answer to the Second Amended Complaint filed herein: EFTA01085328 04/04/2012 16:33 MOORE DODSON RUSSELL PAGE 83/23 Jurisdiction and V nue Defendant denies the jurisdiction of this honorable Court as to subject matter and over this party. Jurisdiction as to venue ij otherwise admitted. Parties 1. Defendant is currently without sufficient information to admit, or deny the allegations contained in I 1. 2. Defendant is currently without suficienti.tformation to admit, or deny the allegations contained in 12, including, wi out limitation, whether this Plaintiff was in existence at the time of the acts d ' ed actionable, whether it was part of any contracts at issue in this action, wheth it was, or could have been an intended, or third party beneficiary at role t times and whether it currently holds any interest in the subject property, currently exists. 3.. Admitted, except that the reference to the ebsite must refer to same for the terms thereof. 4. Defendant is currently without sufficient it filiation to admit, or deny the allegations contained in q 4, except on the urt's determination on whether J.P. Molyncux is a necessary party. (Alleged) Factual All tions 5. Defendant is currently without information cient to admit or deny the allegations contained in ¶ 5. EFTA01085329 04/04/2012 16:33 MOORE DODSON RUSSELL PAGE 04/23 6 Defendant is currently without informed sufficient to admit, or deny the allegations contained in ¶ 6. 7. Defendant is currently without sufficient nation to admit, or deny the allegations contained in ¶ 7, including, bu not limited to "Molyneux's recommendations." "Molyneux's insi and what "Epstein agreed with Molyneux," but denies the allegation for hose benefit Defendant fabricated and installed the library cabinetry and refers the website for the representations therein. 8. Defendant only admits so much of ¶ 8 as references the purchase order(s) issued by "Molyneux" to Fancelli and refers to thl Purchase Orders for the terms thereof, denies duties bbyond satisfaction of these specifics and any benefit to Epstein thereunder. 9. Defendant adidits the allegations contain I in ¶ 9, but denies the allegations that the shipment was to Little St James Tslid and that the shipment was "in, or about May, 2009." 10. Defendant denies each and every alleged contained in ¶ 10, except Defendant is currently without sufficient information to dmit, or deny the allegations relating to the "Proposal," Plaintiffs' Exhibit 3, an the undefined "Molyneux design." It is further apparent that the defects alleged ave been rectified and/or completed, in satisfaction of Molyneux's purchase or with Defendant EFTA01085330 04/04/2012 16:33 MOORE DODSON RUSSELL PAGE 05/23 WA Defendant denies the allegations contialited in ¶10.A, but is currently without information sufficient to admit, or deny allegations relating to the "Proposal" I and the "Molyneux's design," and refe to Molyneux Replacement Purchase Order 7106 and to the "Work ApprovalJc dated March 23, 2010, from Plaintiffs by Gary Kearney to Molyneux Studio, arid March 25, 2010 "Fanelli Punch List by Geary Kearney, and J.P. Molyric= Studio "Punch List Report March 22, 2010," as to the truth of the matter assert4d herein. Sec Defendant's Exhibits 2- 5. 10.B Defendant denies the allegations con in 1102, but is currently without information sufficient to admit, or deny e allegations relating to the undated 'photograph?' without attribution, and to the "Work Approval" dated March 23, 2010 from IPlaintiffs by Gary Keam Ito Molyneux Studio, March 25, 2010 "FANCELLI PUNCH LIST' by Gary Keitney, and J.P. MOLYNEUX STUDIO "Punch List Reiort March 22, 2010" as to 4math of the allegations therein. 10.0 Defendant deities the allegations con in 110.C, but is currently without information sufficient to admit, or deny allegations relating to the undated "photographs" without attribution, and to a "Proposal," and refers to the "Work Approval" dated March 23, 2010 from Pliindffs by Gary Kearney to Molyneux Studio, March 25, 2010 "FANCELLI P H LIST' by Gary Kearney, and J.P. MOLYNEUX Scan° "Punch List Repo March 22, 2010" and to Molyneux e- mail dated May 1, 2009 to Plaintif& as to truth of the allegations therein. See EFTA01085331 04/04/2012 16:33 MOORE DODSON RUSSELL PAGE 06/23 1 1i alsoMolynetu's letter to Defendant dated 12, 2010 with the May 1, 2009 email of Molyneux to Plaintiff(s), Defendant' t 6. 10.D Defendant denies the allegations con ¶10.1), but is currently without information sufficient to admit, or deny the allegations relating to whether the "distressed finish" had been "agreed to Epstein," denies the allegation of a I. "violation" of the Purchase Orders, I the allegations with respect to the "treatment" and refers to Atelier Meriguet re, hired by Molyneux to create the stain color and finish for the cabinetry, a refers to the "Work Approval" dated March 23, 2010 from Plainti.£fs by Gary ey to Molyneux Studio, March 25, 2010 "FANCELLI PUNCH LIST" by Kearney, and J.P. MOLYNEUX STUDIO "Punh List Report March 22, i04' and to Molyneux e-mail dated May 1, 2009 to Plaintiff as to the truth of the ellgations therein;, as to the truth of the allegations therein. 10.E Defendant denies the allegations contain in ¶10.E and refers to the "Work Approval" dated March 23, 2010 from P I I by Gary Kearney to Molyneux F Studio, March 25, 2010 "FANCELLI P di LIST" by Gary Kearney, and J.P. MOLYNEUX STUDIO "Punch List *arch 22, 2010" and to Molyneux mail dated May'l, 2009 to Plaintiff as to of the allegations therein. 10.? Defendant denies the allegations co tin ¶102 but is currently without information sufficient to admit, or deny e allegations relating to the undated "photograph" Without attribution, and ref the 'Work Approval" dated March 23, 2010 from Plaintiffs by Gary Kearney Molyneux Studio, March 25, 2010 EFTA01085332 04/04/2012 16:33 MOORE DODSON RUSSELL PAGE 07/23 "FANCELLI PUNCH LISP by Gary K4nicy, and J.P. MOLYNEUX STUDIO "Punch List Report March 22, 2010" as to le ruth of the allegations therein. II 10.G Defendant denies the allegations container ii 1110.G including, but not limited to, the allegation that the cabinetry was "no , properly sealed," is currently without information sufficient to admit, or deny allegations relating to the undated "photographs" without attribution, and re to the "Work Approval" dated March 23, 2010 from Plaintiffs by Gary Keamj e- Molyneux Studio, March 25, 2010 TANCRII I PUNCH LISP by Gary , and J,P. MOLYNEUX STUDIO "Punch List Report March 22, 2010" as to truth of the allegations. 10.H Defendant denies the allegations contained 110.H, including, but not limited to, the allegation that the Library Cabinetry as niggled was contrary to the Purchase Orders with Molyneux, and refers to the ork Approval" dated March 23, 2010 from Plaintiffs l Gary Kearney to Molyne Studio, March 25, 2010 "PANCELLI PUNCH LIST"I by Gary Kearney, and J.P bijOLYNEUX STUDIO "Punch List ] Report March 22, 2010" as to the truth of the legations therein. 10.1 Defendant deals the allegations con in: 1110.1, and refers to the "Work Approval" dated March 23, 2010 from P1 tiffs by Gary Kearney to Molyneux Studio, March 25, 2010 "FANCELLI PUN .LIST" by Gary Kearney, and J.P. MOLYNEUX STUDIO `Punch List Report 22, 2010" as confirms that the issue was addressed by Defendant and appro by Plaintiff and Molyneux; 10.1 Defendant denieS the allegations contained is 110.1 and refers to the "Work Approval" dated March 23, 2010 from P1 by Gary Kearney to Molyneux EFTA01085333 04/04/2012 16:33 3407775498 MOORE DODSCH RUSSELL PAGE 08/23 I Studio, March 25, 2010 "FANCFJJJ PUN LIST" by Gary Kearney, and J.P. MOLYNEUX STUDIO "Punch List R With 22, 2010" as confirms that the issue was addressed by Defendant and approl d by Plaintiff and Molyneux. 10.K Defendant denies the allegations contain in ¶10.K, and refers to the "Work Approval" dated March 23, 2010 from P by Gary Kearney to Molyneux Studio, March 25, 2010 "FANCELLI P Cl LIST" by Gary Kearney, and J.P. MOLYNEUX STUDIO "Punch List Report 4arch 22, 2010" as confirms that the allegation was not an ikquo in March, 2010. 101 Defendant denies the allegations th 1101 and refers to the "Work Approval" dated March 23, 2010 from ffs by Gary Kearney to Molyneux Studio, March 25, 2010 "FANCELLI P LIST" by Gary Kearney, and J.P. MOLYNEUX STUDIO "Punch List Report 22, 2010" as to the Inrth of the allegations therein. 10.M Defendant denies the allegations contained in• 110.M and refers to the "Work Approval" dated March 23, 2010 from P by Gaty Kearney to Molyneux Studio, March 2010 "FANCELLI PUN LIST" by Gary Kearney, and J.P. MOLYNEUX &MAIO II "Punch List Report 22, 2010" as confirms that the issue was addresed by Defendant and app by Plaintiff and Molyneux. 10.N Defendant denie§ the allegations contained l¶10.N and refers to the "Work Approval" dated March 23, 2010 from PI ills by Gary Kearney to Molyneux Studio, March 25, 2010 "FANCELLI PUN LIST" by Gary Kearney, and J.P. EFTA01085334 04/04/2012 16:33 MXttE DODSON RUSSELL PAGE 09/23 MOLYNEUX STUDIO "Punch List -uivlarch 22, 2010" as confirms that the issue was addressed by Defendant and ap d by Plaintiff and Molyneux vI 10.O Defendant denies the allegations contautHEin 110.O and refers to the "Work Approval" dated March 23, 2010 from illai4tiffs by Gary Kearney to Molyneux Studio, March 25, 2010 "FANCELLI P t I LIST" by Gary Kearney, and J.P. MOLYNEUX STUDIO "Punch List Re March 22, 2010" as confirms that the issue was addressed by Defendant and ap by Plaintiff and Molyneux. 102 Defendant denies the allegations co fn 110.P and refers to the "Work Approval" dated March 23, 2010 from P i II ffs by Gary Kearney to Molyneux Studio, March 25, 2010 "FANCELLI P El LIST" by Gary Kearney, and LP. MOLYNEUX TUDIO "Punch List Rep! MIarch 22, 2010" as =firms that the allegation was riot an issue in March, 2010 10.Q Defendant Is the allegations. con in 110.Q, is currently without information su cicnt to admit, or deny' I !allegations relating to the undated "photographs" without attribution, but dent that the alleged defect was within the scope of the Purchase Orders and refers to "Work Approval" dated March 23, 2010 from Plaintiffs by Gary Kearney Molyneux Studio, Match 25, 2010 "FANCELLI PlkNCH LIST" by Gary Kr eit, and J.P. MOLYNEUX STUDIO "Punch List Reptrt March 22, 2010" as co Itt • the same. 10.R Defendant admiis the allegations contarrn 4 110.R, but is currently without information cient to admit, or deny ;allegations relating to the undated "photographs" without attribution, but deni ti t the alleged defect was within the EFTA01085335 04/04/2012 16:33 3407775498 MOORE DODSON RUSSELL PAGE 10/23 scope of the Purchase Orders and refers e "Work Approval" dated March 23, 2010 from Plaintiffs by Gary Kearney! Molyneux Studio, March 25, 2010 "FANCELLI PUNCH LIST' by Gary It , and J.P. MOLYNEUX STUDIO "Punch List Report March 22, 2010" the same. 10.S Defendant denies the allegations containbd in 110.S and refers to the "Work Approval" dated March 23, 2010 from P by Gary Kearney to Molyneux Studio, March 25, 2010 "FANCELLI P usr by Gary Kearney, and J.P. MOLYNEUX STUDIO "Punch List R itch 22, 2010" as to the truth of the allegations therein. 10.T Defendant admits the allegations con in ¶10.T and refers to the "Work Approval" dated March 23, 2010 from PI :ffs by Gary Kearney to Molyneux Studio, March 25, 2010 "FAWIFIli PUN6 LIST" by Gary Kearney, and MOLYNEUX STUDIO "Punch List Repor %larch 22, 2010" as to the truth of the allegations 11. Defendant de,n the allegations contained ih 1 11, and refers to the "Work Approval" date March 23, 2010 from P , by their agent, Gary Kearney, to Molyneux Studio and the March 25, 20 0, "Fanelli Punch List" by Gary Kearney, and the J.P. Molyncux Studio ' List Report of March 22, 2010, to be juxtaposed as to the allegations there' exed as Defendant's Exhibits 1, 2 & 3, herein. EFTA01085336 04/04/2012 16:33 MOOREDODSONRUSSELL PAGE 11/23 Count I (Breach ntract) 12. Defendant incorporates by reference its uses to the preceding paragraphs 1- 11 as if fully set forth herein. 13. Defendant denies the allegations of I 13 14. Defendant denies the allegations of q but Defendant is currently without sufficient information to admit, or deny negations relating to the "Proposal" and the undefined "Molyneux's design} refers to the "Work Approval" dated March 23, 2010, from Plaintiffs b1 Kearney to Molyneux Studio, and March 25, 2010 "Fanelli Punch List $y Kearney, and J.P. Molyneux Studio "Punch List Report March 22, 2014 its to the truth of the matte r asserted herein. 15. Defendant deniCs the allegations ofl 15. 16. Defendant denies the allegations co 16, but Defendant is currently without infornuition sufficient to admit, deny the allegations relating to the "Proposal, the undefined "Molyneux and references to "Work Approval" dated March 23, 2010 from P1 by Gary Kearney, to Molyneux Studio, the Manch 25, 2010 "Fanelli hi List" by Kearney, and the J.P. Molyneux Studio "Punch List Report M 22, 2010," as to the truth of the matter asserted herein. EFTA01085337 04/84/2012 16:33 IA00RE DODSON RUSSELL PAGE 12/23 17. Defendant denies any contractual by and between Defendant and Molyncux, or any contractual breach wha ver. Count IT (N 18. Defendant incorporates by reference its uses to the preceding paragraphs I - 17 as if fully sit forth herein. 19. Defendant denies the allegations of and specifically denies any duty to Plaintiffs herein. 20. Defendant denies the allegations of I 20 specifically denies any alleged "acts and omissions" any duty to Plaintiffs applicable standard of care. d(or any applicable breach of any 21. Defendant deniJ:s any and all negligent ads and omissions. DEFENDANT FURTHER DENIES EACHAND E kALLEGATION CONTAINED WITHIN THE COMPLAINT THAT WAS NOTSPE i'ALLYADMITTED HER . First A :rotative As and for its first taxi tithe defense, Defendant ts..erts that the Second Amended Complaint (hereinafter "Comp aint") fails to state a claira htpOn which relief can be granted. EFTA01085338 84/84/2012 16:33 MOORE DODSON RUSSELL PAGE 13/23 case As and for its second affirmative defense, Deft al asserts that this Court lacks jurisdiction over the subject matter (as to contract ly, but generally otherwise) and over the person of Defendant. ,Third Affirmative As and for its third affirmative defense, Defend asLerts that Plaintiffs' claims are barred in whole or in part by the assumption of all risks nt at or about the time of the occurrences alleged in the Complaint. Plaintiffs, in ass some risk and/or by exercising control at any time over cabinetry and related materials, ell to exercise the ordinary caution 1 and care required of a reasonably prudent person under L-cumstances. Fourth Aflirnuitive D As and for its fourth affirmative defense, Defend asserts that Plaintiffs' claims are barred in whole or in part by it contributory and/or co ve negligence which exceeded any negligence of this Defend t (which negligence is ly denied). Fifth Affirmative D As and for its fifth affi tivc dcfense, Defendant that Plaintiffs' claims are barred in whole or in part due to Plaintiffs' failure to mitigate d ISTrtkAffirmative_De As and for its sixth 'ye defense, Defendan that Plaintiffs' injury alleged in its claims were not proximately caused by Defendant and therefore barred, in whole or in EFTA01085339 04/04/2012 16:33 MOORE DODSON RUSSELL PAGE 14/23 part, by such preceding, intervening or superseding causes over which Defendant had no control. Seventh Affirmative As and for its seventh affinnative defense, Defendini1 asserts that the damages of which the Plaintiffs complain arc due to the acts and/or omissiol tf the Plaintiffs and/or others over which Defendant had no control. Pekin Alrirmair As and for its eighth affirmative defense, Defends* &seats that Plaintiffs' claims are barred in whole or in part due Ito the maxims of equity, irol but not limited to the doctrine of unclean hands, waiver and/or estoppel. Ninth Affirmative D Se As and for its ninth affirmative defense, Defers erts the Plaintiffs' claims are barred in whole or in part due o the "no duty" rule, as to fte itional acts of others deemed willful and reckless. Tenth Affirmative Detrue As and for his tenth affirmative defense, Defendant .:erft. the collateral source doctrine as an offset against any damages contemplated herein. EFTA01085340 04/84/2012 16:33 MOORE DODSON RUSSELL PAGE 15/23 Eleventh Affirmative Se As and for its eleventh affirmative defense, Def alit asserts that Plaintiffs' claims are barred in whole or in part by the failure of consideratio tja each of them in their individual capacities. Twelfth Affirmative As and for its twelfth affirmative defense, Defen that Plaintiffs claims are barred in whole or in part by lack of contract and/or pri Thirteenth Affirmative se As and for its thirteenth affirmative defense, Dcf asserts that Plaintiffs' claims, as to either or both of them, are barred, in whole or in part, :he applicable statute of limitations and/or by lathes. Fourteenth Affirmative As and for its fourteenth affirmative defense, De asserts that the damages of which Plaintiffs complain arc dice to the acts and/or o ,of Plaintiffs in its course of conduct with their contractors, pr on the part of their con Fifteenth Affirmative D As and for its fifteenth affirmative defense, Defen sessert that Plaintiffs' claims are a se barred in whole or in part by the doctrines of payment and E, • EFTA01085341 04/84/2012 16:33 PAGE 16/23 Sixteenth Affi As and for its sixteenth affirmative defense, De n t asserts that Plaintiffs' claims arc barred, in whole or in part, through Defendant's compl substantial performance under any contract, which contract with Plaintiffs is specifically de Seventeenth Affirmed& Sue As and for its seventeenth affirmative defense, D ndant assert that Plaintiffs' claims are batted, in whole or in part, byRhe statute of frauds. Eighteenth Affirntative As and for its eighteenth affirmative defense, Def 141 asserts accor d and satisfaction as a bar to Plaintiffs' claims, in. whole or in part. Nineteenth Affirmative 4 Eire As and for its nineteen affirmative defense, Deflillrfin asserts that Plaintiffs claims are barred, in whole or in part by r4lease. Defendants speciiicall3f reserves the right to *mks 'find raise additional (affirmative) defenses in this litigation which are subse e to disclosed and supported by information gleaned through investigation, discovery stt t evidence. WILEREFORE having responded to each very factual allegation contained within the Second Amer M Complaint, and raising its affirmative defenses thereto, De t respectfully requests this goncrable Court to grant the Wing relief: A. To dismiss this action with prejudice as ag ibis Defendant; It EFTA01085342 04/04/2012 16:33 MOORE DODSCN RUSSELL PAGE 17/23 B. To award Defendant its costs, induct' nable attorney's fees incurred in the defense action; and C. To award such other and further relief k.ourt deems just and proper. DEFE ANT'S COUNTERCLAIM AINsT PLAINTins COUNT I (DECLARATOR GMENT) COMES NOW DEFENDANT, by and throu dersigned Counsel to state the following facts and circumst‘cs in support of its Cou km against Plaintiffs herein: 22. Defendant incorporates by reference its nses to the preceding paragraphs 1- 21 as if fully set forth herein. 23. Whatever agreements, oral or otherwise isecluding Plaintiffs' Exhibit 3 and design drawings by Molyneux, that were Sig between Molyneux and Epstein (Plaintiffs) were done without the parti n, involvement and/or consent of Defendant Upon information and belief; agreements are far in excess of the limited "pure order(s)" prepared b elyneux for work to be done by Defendant 24. Molyneux I purchase orders to De for the fabrication of work to the specifications as outlined therein. Defen performed the work, fully expecting payment upon itk completion. The o purchase order issued to Defendant • EFTA01085343 04/04/2012 16:33 Mt10RE DODSON RUSSELL PAGE 18/23 by Molyneux defining the limited the work and that the wood to be "light oak" and is attached as Defendant ibis I. 25. In conjunction with the work outlin olyneux in its purchase order(s), Defendant performed the work to the sa on of Molyneux. 26. In that regard, Defendant received Molyneux acknowledgment that Defendant performed the work to the don of Molyneux (and to the satisfaction of Plaintiffs by Plaintiff's native). See Defendant's Exhibit 4. 27. Defendant was specifically instructed by tints) that's it communication with Plaintiff(s) on this project was limited ,t ime individuals, including its/their representative, Kearney ("Kearney" a Defendant's Exhibit 2. i 28. Plaintiffs' ntative, Kearney, dilly accepted Defendant's work, signed off its action of a punch list, issues that are ce minimus for purposes o Wi th the exception of three (3) minor action.' See Defendant's Exhibit 3. 29. A review of the distinction in verb tense n the Pint Amended Complaint and the Second Amended Complaint el that the defects as alleged in the First no longer existed by the filing of the 4d. The Plaintiffs needed (I) light bulbs, (2) bamboo ens 4 large and 4 small and (3) a blackboard. EFTA01085344 04/04/2012 16:33 MOORE DODSON RUSSELL PAGE 19/23 30. Upon information and belief, Plaintiffs' c contractor, Molyneux, effected and completed all outstanding contractual o ons by and between Molyneux and Plaintiffs. 31. Upon Molyneux's specific written ac gment, Defendant had previously completed any and all of its obligations the purchase orders by and between Molyncux and Defendant. 32. Defendant Molyncux, the actual party rivity of contract with Defendant, accepted Defendant's work by fully ackn Mating same in a writing. 33. Plaintiffs, by and through their dcsignat nt, accepted Defendant's work, but for exceedingly minor additions, by ackn ging same in a writing. 34. The writings reference above constitute as a matter of law. 35. The writings referenced above consti rd and satisfaction as against any claims against Defendant's work. 36. With the exception of approximately Two Thousand Euro, Molyneux has paid for the work on account without prot Within the meaning of the "accounts stated" defense in acceptance and acknow ent of the work. 37. As a result of e foregoing justiciable versies as alleged by Plaintiffs, Defendant see a declaratory judgment h. this Honorable Court that: (1) Defendant satisfied its written con obligations, if any, to Molyneux, EFTA01085345 04/04/2012 16:33 MOORE DODSON RUSSELL PAGE 20/23 terminating any claim of further benefi Plaintiffs as a matter of law and fact; (2) that Defendant has been released b ndant Molymeux and Plaintiffs, as a matter of law and fact; (3) that Molyne Plaintiffs have accepted the work of Defendant without protest as a matter and fact; and (4) that Defendant is entitled to a dismissal of this action u ease and/or accord and satisfaction and or the doctrine of "accounts stat hout protest. Defendant is further entitled to damages, attorneys fees and in an amount to be determined at trial. Upon information and belief, Plaintiffs are obli dismiss their action in the nature of contract, with no pending bleach identified. Plaintiffs fhrther obliged to dismiss their action in tort, having received adequate compensation fro P • ary contractor. The goal of litigation is to make one whole, not rich. WILEFtEFOR*, Defendant respectfully dens this Honorable Court to grant the following re as against Plaintiffs herein: A. To adjudge ar declare that Defend ormed and substantially perf rmed any obligatio Plaintiffs independently and or through its contra obligations through Molynewc including any allegatio negligence from or independe ly from the purchase and d to award Defendant damage against Plaintiffs in ount to be determined; B. To award Defe lent its attorney's fees dests, ;named in the defense of thi action; and EFTA01085346 . 04/04/2012 16:33 MEM MOORE DODSON RUSSELL PAGE 21/23 C. To award other and father tell e Court deems just and pro DEFENDANT'S C OSS-CLAIMS AGAIN FENDANTIVIOLYNEUX COUNT 1 (DECLARATOIfl GMENT) 38. Defenthua incorporates by reference its uses to the preceding paragraphs 1- 21 and the new matter contained in 22-3" If fully set forth herein. As a result of the foregoing, Defendant seeks a aratory judgment from this Honorable Court that: (1) Defendant satisfied its written contra:. llai obligations, if any, to Molyneux, 1 terminating any claim of wither benefit to Plaintiffs an 1, 'vfolyneux as a matter of law and fact; (2) that Defendant has been released by Defendant Mo€lmsux and Plaintiffs as a matter of law and fact; (3) that Molyneux and Plaintiffs have accepte(64 work of Defendant without protest as a matter of law and fact 1 (4) that Defendant is eat, led to a dismissal of this action upon release and/or accord and sat faction and or the doctriai eraccounts stated" without protest. Defendant is further entitled t damages, attorneys fees atil costs, in an amount to be determined at trial. COUNT 2 DEMNITICATION ANf1 C NTRIBUTION) O 39. Defendant inco rates by reference its tattles to the preceding paragraphs 1- 21, together with the new matter contained it 2-38 as if fully set forth herein. EFTA01085347 04/04/2012 16:33 MOORE DODSON RUSSELL PAGE 22/23 A. To adjudge and declare that Defendan performed or substantially pettotmed its duties as limit liy the purchase orders(s) between it and Molyncux and Ir Defendant damages againat Molyneux in an amount alt) to any amount realized by Plaintiffs against Defendant Fan B. To award Defendant its attorney's fees ,Costs, incurred in the defense of this action; and C. To award such other and further relief Court deems just and proper. ja Dated this ar of April, 2012. Respectful' Treston E V.I. Bar MOORE D SON & RUSS L, P.C. Attorneys f attendant Fancelli P.O. Box 31 b.s. (14A Norre Gade) St. Thomas, 804-0310 PHONE: FAX: EMAIL: EFTA01085348 04/84/2012 16:33 MOORE DODSCH RUSSELL POISE 23/23 CERTIFICATE thRVICE 4- I hereby certify that on this th day of April a copy of the foregoing was served by facsimile transition and first class mail, prepaid, upon Denise Francois, Esquire, Hodge & Francois, #1340 Taarneberg, St. Th V.I. 00802. 4 I further certify tha on this day of April, 24 a copy of the foregoing was mailed, postage prepaid, to A. Jeffery Weiss, Esquire, 6934 Vc p , St. Thomas, V.I. 00802 and, pending his appearance, to Molyneux Studios, Ltd., 29 69ib Street, New York, New York 10021. a Plaintiffs' Counsel is asked to notify Defendant's whet fondant J.P. Molyneux Studio, Ltd., is served. The parties will have to expedite a meeting of Counsel wantto Fed. R. Cm P. 26(f) in advance of the court ordered mediation dates. EFTA01085349