Court Records
Case 1:19-cv-10479-ALC-DCF Document 12 Filed 01/24/20 Page 1 of 4
Troutman Sanders LLP
875 Third Avenue
New York, New York 10022
troutman.com
Bennet J. Moskowitz
[Email Redacted]
January 24, 2020
ECF
Hon. Andrew L. Carter Jr.
Thurgood Marshall
United States Courthouse
40 Foley Square
New York, NY 10007
troutmar? sanders
Re: v. Darren K. lndyke and Richard D. Kahn, in their capacities as
executors of the Estate of Jeffrey E. Epstein, 1:19-cv-10479-ALC-DCF
Dear Judge Carter:
We represent Defendants Darren K. Indyke and Richard D. Kahn, Co-Executors of the Estate of
Jeffrey E. Epstein (together, the to -Executors"), in the above-referenced action. We write
pursuant to Your Honor's Individual Practice § 2(A) to set forth the bases for the Co-Executors'
anticipated motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the time-barred claims and
punitive damages demand in Plaintiff ("Plaintiff") Complaint (ECF No. 1).
1. Plaintiff is a South African resident who alleges Decedent committed torts against
her from 2002 to 2004 when she was an adult, in various jurisdictions.
Plaintiff, who claims South African citizenship and residency, alleges that, from 2002 (when she
was 20) to 2004, Mr. Epstein ("Decedent"), now deceased, committed various sexual offenses
against her in the U.S. Virgin Islands ("USVI"), France, Florida, New Mexico and New York.
(Compl. ¶¶ 16, 38, 50, 55.) Plaintiff asserts two causes of action -- battery and intentional
infliction of emotional distress -- and demands punitive damages. (Id. ¶¶ 54-64, p. 15.)
2. Plaintiff's causes of action are time-barred.
CPLR § 202 provides that, when a non-N.Y. resident such as Plaintiff sues on causes of action
accruing outside N.Y., the complaint must be timely under the statute of limitations ("SOL") of
both N.Y. and the jurisdiction where the claim accrued.' Plaintiff's causes of action expired by:
2006 per the USVI's 2-year SOL (5 V.I.C. § 31(5)(A)); 2008 per FL's 4-year SOL (Fla. Stat. §
95.11 (3)(O)); 2007 per N.M.'s 3-year SOL (N.M. Stat. § 37-1-8); and 2005 or 2007 per N.Y.'s 1-
or 3-year SOL (CPLR §§ 214(5), 215(3)).
3. Plaintiff's attempts to plead around the statutes of limitations fail.
Plaintiff erroneously alleges her claims are timely per CPLR § 213-c or § 215(8)(a), her claims
were equitably tolled, and that the Co-Executors are equitably estopped from asserting an SOL
defense (Compl. ¶y 12-15). Each of these arguments fails as a matter of law.
"In diversity cases in New York, federal courts apply ... C.P.L.R. § 202." Commerzbank AG v. Deutsche
Bank Nat? Tr. Co., 234 F. Supp. 3d 462, 467 (S.D.N.Y. 2017) (citation omitted).
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January 24. 2020
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First, neither CPLR § 213-c nor § 215(8)(a) applies here. The 20 year SOL in CPLR § 213-c
became effective as of September 18, 2019; the SOL was 5 years as of 2006 and 1 year before
then. (L. 2006, ch 3, § 5(b).) However, the 20-year SOL does not apply retroactively except
"where the applicable [SOL] in effect on the date of such act or omission has not yet expired." L.
2019, ch. 315, §4. Therefore, CPLR § 213-c cannot revive Plaintiff's claims arising from torts
committed in N.Y.
Separately, CPLR § 215(8)(a) provides: "Whenever it is shown that a criminal action against the
same defendant has been commenced with respect to the event or occurrence from which a
claim governed by this section arises, the plaintiff shall have at least one year from the
termination of the criminal action ... to commence the civil action" (emphasis added).
Decedent's criminal indictment (the "Indictment") attached to Plaintiff's Complaint does not
concern Plaintiff's allegations. Rather, the indictment charges Decedent sexually abused "minor
girls" (Compl., Ex. A at ¶ 1), stating throughout that it concerns sex trafficking of "minors." (Id.,
Ex. A at ¶¶2 - 4, 6, 8, 11- 15, 18 - 20, 22.) Because Plaintiff alleges she was an adult when
Decedent abused her, her action and the Indictment arise from different occurrences.
New York courts apply CPLR § 215(8)(a) narrowly. See Christodoulou v. Terdeman, 262 AD2d
595, 596 (2d Dept. 1999) (CPLR § 215(8)(a) applied only to claims based on events of February
26, 1993 and December 28, 1993, because it was only in connection with events of those two
days that a criminal prosecution was commenced against defendant); Gaffina v. Thatcher, No.
2017-52980, 2018 N.Y. Misc. LEXIS 8435 (Sup. Ct. Dutchess Cnty. Oct. 23, 2018) (CPLR §
215(8)(a) inapplicable where incidents charged in criminal action and those alleged in civil
action occurred on different dates): McElligott v. City of N.Y., 15-cv-7107 (LOS), 2017 U.S. Dist.
LEXIS 201829, at *13 (S.D.N.Y. Dec. 7, 2017) (CPLR § 215(8)(a) inapplicable to claims against
civil defendants not charged as co-defendants in criminal action, notwithstanding same events
gave rise to both actions). Plaintiff alleges a far more tenuous connection to the Indictment than
the criminal-civil links unsuccessfully asserted in those cases.
Second, even if CPLR § 213-c and § 215(8)(a) apply, which they do not, Plaintiff's claims for
torts committed outside N.Y. are still untimely per the limitations periods of those jurisdictions
and CPLR § 202. While Plaintiff alleges Decedent raped her within 20 years of filing her
Complaint (Compl. ¶13), she does not allege that occurred in N.Y. Plaintiff's claims for torts
outside N.Y. are untimely.
Third, Plaintiff fails to meet her burden to allege extraordinary circumstances sufficient to justify
tolling or equitable estoppel. Equitable tolling is only applied where a plaintiff is "prevented in
some extraordinary way from exercising h[er) rights." Viti v. Guardian Life Ins. Co. of Am., 10-cv-
2908 (ALC) (MHD), 2012 U.S. Dist. LEXIS 189633, at *30 (S.D.N.Y. Oct. 5, 2012), adopted by,
2013 U.S. Dist. LEXIS 174145 (S.D.N.Y. Dec. 11, 2013) (emphasis added) (citations omitted).
Under this doctrine, a court may, "under compelling circumstances, make narrow exceptions to
the statute of limitations ... 'to prevent inequity.'" Id. (emphasis added) (citations omitted). "That
the doctrine is to be employed only sparingly -- in 'extraordinary and 'compelling' circumstances
-- is reflected in the fact that the plaintiff bears the burden of persuasion to show that tolling is
justified." Id. (emphasis added) (citing Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)). A
late-filing party seeking equitable tolling must also demonstrate she acted with "reasonable
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diligence" in pursuing her claims during the period she seeks to toll. Id. at *32 (citation omitted).
Equitable estoppel only applies where a plaintiff knows her cause of action exists but the
defendant's conduct causes her to delay in bringing her lawsuit. Yesh, 2010 U.S. Dist. LEXIS
101744, at '5 (citation omitted). Equitable estoppel requires a plaintiff to show: (i) the defendant
made a definite misrepresentation of fact and had reason to believe the plaintiff would rely on it;
and (ii) the plaintiff reasonably relied on the misrepresentation to her detriment. Id. (citation
omitted). Tolling is inappropriate where, as here, a plaintiff fails to articulate any acts by a
defendant that prevented her from timely commencing suit. Id. at '6 (citation omitted).
Plaintiff's threadbare allegations of "deception," "threats" and the like (Compl. ¶14) do not
establish "extraordinary" circumstances justifying tolling. Nor has Plaintiff alleged (i) that
Decedent made a misrepresentation to her and had reason to believe she would rely on it, or (ii)
that Plaintiff reasonably relied on it to her detriment.
4. Plaintiff's claim for punitive damages fails as a matter of law.2
Plaintiff's punitive damages claim must be dismissed as a matter of law because none of the
jurisdictions where the alleged torts occurred permits punitive damages against a decedent
tortfeasor's estate. See Poindexter v. Zacharzewski, 18-14155, 2018 U.S. Dist. LEXIS 189861,
at '6 (Nov. 5, 2018 S.D. Fla.) ("Florida law prohibits recovery of punitive damages from the
estate of a wrongdoer who is deceased."); Jaramillo v. Providence Wash. Ins. Co., 117 N.M.
337, 346 (N.M. 1994) ("punishment and deterrence are not accomplished by enabling recovery
of punitive damages from the estate"); NY EPTL § 11-3.2 (a)(1) ("an action may be brought or
continued against the personal representative of the decedent, but punitive damages shall not
be awarded nor penalties adjudged in any such action brought to recover damages for personal
injury."); Powell v. Chi-Co's Distrib., ST-13-TOR-14, 2014 V.I. LEXIS 21, at *5 n.13 (U.S.V.I.
Super. Ct. Apr. 3, 2014) (Restat. §908(2) "reflects the common law of this jurisdiction").3 That is
the law in most jurisdictions, as reflected in the Restatement. See Restat. (Second) Of Torts §
908 cmt. a (punitive damages not available against representatives of deceased tortfeasor).°
2 Courts in this District regularly dismiss punitive damages claims. See The Cookware Co. (USA), LW v.
Austin, 15.5796, 2016 U.S. Dist. LEXIS 177691, at '17 (S.D.N.Y. Dec. 8, 2016) (dismissing punitive
damages claim without leave to replead); SJB v. N.Y.C. Dept of Educ., 03-6653, 2004 U.S. Dist. LEXIS
13227, at '25-26 (S.D.N.Y. Jul. 14, 2004) (dismissing punitive damages claims not statutorily available).
3 To determine common law, USVI courts consider: (1) whether USVI courts previously adopted a rule;
(2) the position taken by a majority of other jurisdictions; and (3) which approach is the soundest for the
USVI. Gov't of Virgin Islands v. , No. S. CT. CIV. 2013-0095, 2014 WL 702639, at '1 (V.I. Feb.
24, 2014). These factors favor the Co-Executors: (1) pre-Banks, USVI courts expressed approval for
Restat. § 908 (see v. Dowson Holding Co., 51 V.I. 619, 628 (D.V.I. 2009) (considering the
inverse issue)): (2) a majority of other jurisdictions preclude punitive damages against a tortfeasor's
estate (2 Linda L. Schlueter, Punitive Damages § 20.4 (7th ed. 2015)); and (3) post-Banks, USVI courts
have held § 908 is the soundest rule (Powell, supra.).
4 France does not recognize punitive damages. Punitive Damages, supra., at § 22.4 (citation omitted).
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Case 1:19-cv-10479-ALC-DCF Document 12 Filed 01/24/20 Page 4 of 4
Hon. Andrew L. Carter Jr.
January 24, 2020
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Respectfully submitted,
s/Bennet J. Moskowitz
Bennet J. Moskowitz
troutmaril sanders
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