2023.12.22 Response.pdf

I N THE SUPERIOR COU RT OFTRE VIRGI" I LA - os FILED December 22. 2023 02:26 PM ST -2020-CV-00155 TAMARA CHARLE CLERK OF THE COURT L. SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS/ST JOHN 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 GHISLAINE MAXWELL Plaintiff, vs. ESTATE OF JEFFREY E EPSTEIN;DARREN K INDYKE in his capacity as Executor of the ESTATE OF JEFFREY EPSTEIN; RICHARD D KAHN in his capacity as Executor of the ESTATE OF JEFFREY EPSTEIN and NES, LLC, a New York Limited Liability Company Defendants Case No.: ST-2020-CV-00155 PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS FOR FAIL URE TO PROSECUTE Plaintiff's response to Co-Executors Motion to dismiss for failure to prosecute or alternatively to compel her to appear Pro-Se Preliminary Statement Ghislaine Maxwell appears pro-se and respectively submits this reply in support of the continued stay in proceedings whilst her Appeal against Conviction in Southern District New York is pending, and while she continues to seek counsel, as she requested in 24 plaintiff's response to a status hearing filed May 16th, 2023. 25 26 27 28 Plaintiff will continue to appear, pro se and respond to any court orders in the absence of legal counsel and given the stringent constraints placed upon her by the BOP PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS FOR FAILURE TO PROSECUTE - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whilst in FCI Tallahassee. The Plaintiff opposes a defendant's motion to dismiss, and denies she has failed to prosecute her claims. Background Plaintiff brought this action 3/12/2020 prior to being swept into Epstein's criminal proceedings as she was not party to Epstein's first criminal proceedings and was not identified or referenced in his 2019 indictments. This action was initiated only after months of seeking contact with the Estate before the plaintiff was indicted and when the Estate could have dealt with her claims but she was ignored. Plaintiff was represented by counsel during the pendency of this case until the court granted plaintiffs attorney's right to withdraw September 7, 2022. The defendants allege that the plaintiff has failed to comply with court orders and willfully so. Neither is true. The Plaintiff submitted her reply per the court's order May 16, 2023 at the FCI Tallahassee Post Office, and with the postal order of proof of service and required by the BOP. Litigation is deemed filed at the time delivered to prison authority, Houste v LACK 487 U.S. 266; 101 LE D2 D245; 108 SCT2379 (1988). PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS FOR FAILURE TO PROSECUTE - 2 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff will co~tinue to comply with all and any Court Orders. The Estate argues as dismissal of the case as a suitable sanction. But the Court should disregard such David and Goliath tactics as the allegations are untrue and baseless. ARGUMENT The Defendants argue for dismissal of Plaintiff's Case as her contractual and Common Law indemnification claims fail on the merits. The Plaintiff in Plaintiff's Brief in response to the Court order argued that the Plaintiffs common law indemnity claims are not barred and there is not basis to bar Plaintiffs claims as a matter of public policy at the Rule 12 stage according to Virgin Islands Law. Indemnification from criminal acts under the General Corporations Law are provided for under Virgin Islands Law as indemnification may be appropriate if the indemnitee had been convicted of a criminal charge. Specifically the general Corporation Law codified at Title 13 ofthe Virgin Island Codes provides for such detailed in Plaintiffs Brief in response to the Court Order dated August 1 2022. Further the co-executors public policy defense does not apply to Plaintiffs common law indemnity claims since the defense allows a party to avoid enforcement of a Contract ( see Berne supra 46 VI at 150 ; Brouillard vs DLJ Mortg. Cap Inc 63 VI 788,794 VI 2015. As a matter of Common Law the Virgin Islands Courts recognize the right to indemnity between joint tortfeasors see infra Section 1 A(2) see also 41 AMJUR2d Indemnity 21 citing Horrabin vs City of Desmoines 198 Iowa 549; 199 NW 988, 38 ALR 544 (1924). Jacobs vs General ACC Fire and Life ASSUR.Corp 14 WIS 2d 1,109 NW 2d 462,88 ALR 2d; 1347 (1961). Virgin Islands Policy does not impact Plaintiffs PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS FOR FAILURE TO PROSECUTE - 3 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 common law indemnity claims and nor does Virgin Islands public policy bar Plaintiffs indemnity claims that arise under Virgin Islands General Corporation Law. This law provides that a Corporation may indemnity any person who "was or is" a party to civil or criminal proceeding by reason of the persons relationship with the Corporation "against expenses including attorney fees". 13 VIC 67 a(a). In the case of a criminal proceeding the person must have had no reasonable cause to believe his conduct was unlawful. These arguments are fully expanded in Plaintiffs brief in response to the Court ORDER. Under New York Law, Courts routinely order indemnification where a Director is charged with intentional misconduct. If the director or officer satisfied the requirements of NY Biz Corp law a Court may order the Corporation to advance litigation expenses not withstanding the corporations allegations that the director or officer engaged in wrong doing against the Corporation. Advance payment of fees is authorized if the Defendant has raised genuine issues of fact or law NYBizCorpLaw 724 (c) .New York law provides for the indemnification of officers and directors for litigation expenses under certain circumstances. NYBizCorpLaw 722,723. New York also provides that the statutory indemnification procedures are not exclusive and authorizes a Corporation to agree to indemnify officers and directors. The Court utilizes 724( c) to direct the advance payment of fees where the indemnification was provided for by a corporate by law, contract or as well when no corporate PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS FOR FAILURE TO PROSECUTE - 4 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 indemnification agreement existed as alleged by the Estate who claims that NES LLC operated without corporate indemnification for 16 years prior to their production of documents in 2014 from 1998 to 2014, the date the defense introduced the alleged first operating agreement, see the Motion to Dismiss and attached Exhibit C which is NES Operating Agreement. The co-executors should not raise any objection to indemnification on public policy grounds in addition due to unclean hands. They should be estopped from raising any objectio