i UNITE-4.1D DI-6.9STRICT COURT-4.1 SOUTHERN DIST-3.6RI-6.4CT OF YORK JANE DAR-3.8REN INDYKE a-7nd RICHAR-3.8D KAHN in their capacities as executors of the ESTATE OF JEFFREY EPSTEI-7.4N GHISLAINE MAXWELL an individual Defendants Case No PLAINTIFFS REPLY IN SUPPO-7.3RT OF MO TION TO DISMISS WITH PREJUDICE PURSUANT TO FRCP a Plaintiff subm8.4itted a letter to this Court on February ECF requesting that this Motion be continued and ruling on it deferred in light of new7.6 in form8.2ation concerning the Epstein VCP5.7s uncertainty in m8.3a-.7king settlem8.3e-.7nt offer paym ent to victim8.1s However upon review of the Epstein Estate5.5s-.5 letter of toda date ECF and subsequent confirm8.7a-.3tion from8.7 the Epstein VCP5.5s Fund Adm8.1i-1.9nistrator Plain5.3tiff has been ass4.6u.4red that her settlem8.2e-.8nt will be fund5.4ed prom8.4ptly upon the Fund Adm8.4i-1.6nistrator5.8s receip5.6t-1.6 of th dism8.2issal in this action For these reasons Plaintiff hereby withdraws her request that th C8ourt con6tinu6e-.2 this Mo6tio6n and respe4.8c4.8t-1.2f4u1lly requests that the Court grant her Motion together with such other and furt her relief as the Court deem8.3s just and proper Case Document Filed Page of ii Plaintiff Jane Doe this reply brief in further support of her m8.2o.4tion to dism8.2iss this action with prejud5.5ice w7.7ith each side to bear their own costs and fees pursuant to F.R.C.P Rule a accord5.9ing to the term8.7s set forth in th5.9e stipu5.9l-1.3ation5.9 for dism8.7issal execu5.9ted both plaintiff Jane Doe and defendant Darren Indyke and Richard Kahn Co-Executors of the Estate of Jeffrey Epstein ECF I 2108.4MAXWELL IS NOT TH PRE-3.7V-3.5AILING Ghislain5.8e M5a-.4xwell objec4.6ts to th Court dism8.3issin5.5g.5 Plaintiff5.7s case with prejudice pursuant to the proposed term8s set fo rth in Plaintiffs Motion following the global settlem8.5e-.5nt reached last year Specifically Ms Maxwell arg5.3u.3es it would5.6 be inequitable for the Court to dism7.8iss the case against her without pres erving her right to seek fees and costs against the Plaintiff and without an or der that Plaintiff produce to he an un-redacted copy of the conf4identia4.8l settlem8.8e-.2nt agreem8.8ent 2751.6Further highlighting her docum8.3ente lack of candor with th5.3e SDNY Ms Maxwell contends that she is somehow th prevailing party here and th erefore should not be precluded from8 pursuing fees and costs against Plaintiff at later Ms Ma-5.7xwell however is not the prevailing party Rather dism8.2issal of th is action with prejudice is a condition of the settlement in th6.2e settlem9e0nt rele5ase exe5c5u1.2ted by Plaintiff Indeed as plainly stated on page in th5.6e general release ag reement attached by Ms Max5.8w3ell as Exhibit A to her Opposition5.3:3.1 Releaso5.8r-1.2 will with pr3.8ejudi any and all legal actions5 whether lawsuits probate claim8s-.6 or otherwise that Releasor has filed again5.3s-.5t any of Releasees with each party to bear her his or its own costs and attorne4.5y.7s f3.7ees and will subm8.5it proof3.7 dism8.5issal to the Adm8.5i-1.5nistrato5.7r alo5.7ng with or to the signed accep5.5tance of the Com8.7p.9ensation and this ex ecuted Release ECF Accordingly not only does the settlem8e-1nt agr eem8.8ent direct Plaintif4f4 to dism8.8iss this a4.8c-.1tion with pre4.6j-1.4udice it also ex5.8pressly st that each in such lega action will his its own costs and attorneys5.4 fees Ms Maxwell cannot insulate he rself from future liability by ECF Case Document Filed Page of i agreeing to and benefiting from8.2 her inclusion in this settlem8.4e-.6nt agreem8.4ent as Jeffrey Epstein5.8s joint employee but then turn around and claim8.1 she is also the prevailing party Further and notwithstanding the plain language of the settlement release defendants Darren Indyke and Richard Kahn Co-E xecutors of the Estate of Je ffrey Epstein have stipulated that Ms Ma4.9xwell sha4.9ll be pre4.9c luded from8.3 seeking fees or costs relate4.7d to this m8.7a-.3tter ag5.9ains5.1t the Epstein Estate and/or its re lated entities E6.2CF Ms Maxwell5.7s ram8.3b.5ling tale about why she would suffer prejudice to have this action dism8.1issed against her with prejudice is thus ado about nothing And finally even if Ms Maxwell was the prevailing party?which she is not?recovery of fees and costs against Plaint iff would be im8.1proper since dism8.1i ssal is req5.9u.9ested with prejud5.9ice See Colombrito Ke4.2lly F.2d 2d Cir exp laining that the purpose of awarding fees and costs to prev ailing party when cases are di sm8issed without prejudice is generally to reim8.2burse the defenda nt the litiga5tion cos5.4t-1s in6.2curre in view of the risk often the faced by th5.8e defendant that the suit will refiled and5.9 will im8.7pose duplicative expenses Conversely when an action is dism8issed ith prejudice such as what is being requ5.5es4.7ted here fees have almost never awarded because defendant,5.4 unlike a defendant against whom a claim8.1 has been dism8.1isse without prejudice has been of the risk relitigatio5.8n the issu5.8es just as if the case had been adjud5.5i-1.7cate in af3.9ter a tria4.7l in which event absent statutory aut horization5.8 the Am8.6erican Rule ould preclude such an award Id at Ms Maxwell cites a single cas in which a court included a condition to voluntary dism8.1issal allowing the defendant to seek fees and costs but that was a case in which the voluntary dism8.4issal was without prejudice Simon Burchett Photography In A.P Moller Maersk A/S No CIV KPF at S.D.N.Y Mar Case Document Filed Page of iv II EVCP-4.7 PREVENT-3.5S.7 VICTIM-6.7S FR OM CARVI-6.5NG MAXWEL-3.7L OUT OF THE Maxwell attem8.4p.6ts to lure the Court in5.8to belie4.6v.8ing Plaintiff have elected to carve Ms Maxwell out of the sett lement release to justify her eed for an un-redacted copy of the conf3.9iden5.9tia4.7l settlem8.7e-.3nt agre4.7em8.7ent ECF at Ms Maxwell knows however that the EVCP protocols prevent any victim including Plaintiff from carving out Ms Maxwell from8.2 the settlem8.4e-.6nt release The Epstein Estate concedes this point in its response to this Motion ECF at 2750Under the settlem8.7ent agreem8.7ent it is Plaintiff5.5s sole option to disclos5.3e-.1 the conf4.1identia4.9l inform8ation and docum8e-6n.2tation relating to her par ticipation in the EVCP Program8.1 ECF at Plain)5.5tiff chooses to m8.3a-.7intain that confid entiality was prom8.4ised confiden5.6tiality when she chose to participate in the EVCP fo llowing the stay of this case requested by Ms Maxwell P6.3l-2.1aintiff cannot be required to now waiv that confidentiality in order to dism7.9iss this case and rec4.4e-.6ive paym8.4ent Such a co5.6ndition woul evisce4.7rate the conf3.9iden5.9tia4.7lity to victim8.7s who chose to pa4.7r3.9tic4.7ipate in th5.9e EVCP and would deter continued participation in the Program8.3 CONCLUSION the reasons stated above and in her m7.7oving brief ECF Plaintiff respec4.8tf4ully requests the Court g6r4ant her tion to dism8.5iss with with such other and further relief as th Court deem8.4s just and proper Respectf3.9u.9lly5.9 2750subm8.7itted Dated February Robert 2750Robert 2750Glassm8.2an Santa Monica Blvd Suite Los Angeles CA Telephone 2750Facsim8.4ile 2750glassm8.3an psblaw.com Attorney4.6s5 for Plain5.8t-1.4iff Case Document Filed Page of
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