Court Records
Case 1:19-cv-10479-ALC-DCF Document 39 Filed 05/26/20 Page 1 of 16
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Plaintiff,
-against-
DARREN K. INDYKE and RICHARD D.
KAHN, in their capacities as the executors of
the ESTATE OF JEFFREY EDWARD
EPSTEIN,
Defendants.
Case No. 1:19-cv-10479 (ALC) (DCF)
DEFENDANTS' REPLY MEMORANDUM OF LAW IN SUPPORT OF THEIR
MOTION TO DISMISS PLAINTIFF'S COMPLAINT
TROUTMAN SANDERS LLP
875 Third Avenue
New York, New York 10022
Tel: [Phone Redacted]
Fax: [Phone Redacted]
Attorneys for Defendants
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT 1
ARGUMENT 1
I. New York's borrowing statute applies to Plaintiff's claims because her
own allegations firmly establish she was not, and is not, a New York
resident 1
I1. The 20-year limitations period in CPLR § 213-c does not apply
retroactively or to torts allegedly committed outside New York 3
III. Plaintiff is unable to invoke CPLR § 215(8)(a) because she fails to assert a
criminal indictment that arises from Decedent's alleged conduct towards
her. 4
IV. Plaintiff fails to meet her burden to allege "extraordinary" circumstances
sufficient to invoke equitable estoppel or tolling 6
V. Judge Engelmayer recently dismissed two other plaintiffs' punitive
damages claims as a matter of law, rejecting the very arguments Plaintiff
raises here 7
CONCLUSION 10
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TABLE OF AUTHORITIES
Cases
Bache Halsey Stuart Inc. v. Namm,
Page(s)
446 F. Supp. 692 (S.D.N.Y. 1978) 2
Banks v. Intl Rental & Leasing Corp.,
55 V.I. 967 (2011) 10
Blisset v. Eisensmidt,
940 F. Supp. 499 (N.D.N.Y. 1996)
v. Parkchester S. Condos.,
287 F.3d 58 (2d Cu.r 2002)
9
7
Carson Optical Inc. v. eBay Inc.,
202 F. Supp. 3d 247 (E.D.N.Y. 2016) 3
Corcoran v. New York Power Auth.,
No. 95 CIV. 5357 (DLC), 1997 WL 603739 (S.D.N.Y. Sept. 29, 1997) 4
Crabtree ex rel. Kemp v. Estate of Crabtree,
837 N.E.2d 135 (Ind. 2005) 10
No. 15-CV-5359 (KMK), 2016 WL 5720811 (S.D.N.Y. Sept. 30, 2016) 7
Doe 15 v. Indyke,
No. 19-cv-10653 (PAE), 2020 WL 2086194 (S.D.N.Y. Apr. 30, 2020) 8, 9, 10
Doe v. Indyke,
No. 19-cv-10758 (PAE), 2020 WL 2036707 (S.D.N.Y. Apr. 28, 2020) 7, 8, 9, 10
Funk v. Belneftekhim,
No. 14-CV-0376 (BMC), 2019 WL 3035124 (E.D.N.Y. July 11, 2019) ..................................7
Gen. Stencils, Inc. v. Chiappa,
219 N.E.2d 169 (N.Y. 1966) 7
Gold v. Katz,
No. 90 CIV. 7726 (RLC), 1991 WL 237807 (S.D.N.Y. Nov. 4, I991).. .2
Godin v. Lederman,
No. 05-CV-1899 (ILO), 2006 WL 1154817 (E.D.N.Y. Apr. 28, 2006). .7
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Guobadia v. Irowa,
103 F. Supp. 3d 325 (E.D.N.Y. 2015) 7
Kashef v. BNP Paribas S.A.,
925 F.3d 53 (2d Cir. 2019) 6
Lettis v. U.S. Postal Serv.,
39 F. Supp. 2d 181 (E.D.N.Y. 1998) 4
In re Merrill Auction Rate Sec. Litig.,
851 F. Supp. 2d at 544 (S.D.N.Y. 2012) 8
Nash v. Coram Healthcare Corp.,
No. 96 Civ. 0298 (LMM), 1996 U.S. Dist. LEXIS 9101 (S.D.N.Y. June 27,
1996) 8
Nat'l Jewish Democratic Council v. Adelson,
No. 18 Civ. 8787 (JPO), 2019 U.S. Dist. LEXIS 168675 (S.D.N.Y. Sept. 30,
2019) 9
People v. McLaughlin,
80 N.Y.2d 466 (1992) 4
Texas v. Florida,
306 U.S. 398 (1939) 2
Whitley v. Bowden,
No. 17-cv-3564 (KMK), 2018 WL 2170313 (S.D.N.Y. May 9, 2018) 3
Willis v. Westin Hotel Co.,
651 F. Supp. 598 (S.D.N.Y. 1986) 2
Wilson v. Erra,
94 A.D.3d 756, 942 N.Y.S.2d 127 (2012) 4
Statutes
97 NY Jur Statutes § 185 6
CPLR § 213-c I, 3, 4
CPLR § 215(8Xa) I, 4, 5
E.P.T.L. § I 1-3.2(a)(1) 9
New York Child Victims Act 8
Rule 12(bX6) and Rule 12(f) 8
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Rule 12(0 8
Other Authorities
C. & A. 5C Fed. Prac. & Proc. Civ. § 1380 (3d ed.) 8
Restatement (Second) of Torts § 908 10
-iv-
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The Co-Executors' submit this reply memorandum of law in support of their motion to
dismiss Plaintiff's Complaint (ECF No. 1).
PRELIMINARY STATEMENT
In her opposition brief, Plaintiff asks the Court to depart from well-established law to
resuscitate her claims that expired over a decade ago. First Plaintiff attempts to create a non-
existent issue of fact — which does not alter the result of the proper legal analysis in any event —
regarding her residence, which she unequivocally alleges was not in New York. Second, Plaintiff
asks the Court to disregard basic principles of statutory interpretation and numerous cases applying
CPLR §§ 213-c and 215(8)(a) to support her erroneous application of those rules. Third, Plaintiff
asks the Court to disregard Second Circuit authority holding that it is Plaintiff's burden to allege
"extraordinary circumstances" to toll the applicable statutes of limitations, which she fails to do
here. Fourth, Plaintiff urges this Court to permit her to seek punitive damages notwithstanding
that, in two other actions against the Co-Executors involving similar claims, Judge Engelmayer
dismissed claims for punitive damages in the face of the very arguments Plaintiff raises here. The
Court should reject Plaintiff's arguments.
ARGUMENT
I. New York's borrowing statute applies to Piaintiff's claims because her own
allegations firmly establish she was not, and is not, a New York resident.
As laid out in the Co-Executors' moving papers, the New York borrowing statute requires
dismissal of Plaintiff's claims to the extent that they are based on torts that allegedly occurred in
France, New Mexico, and the USVI, as such claims are time-barred by the applicable laws of those
I Capitalized terms not defined herein have the meanings ascribed to them in the Co-Executors' moving brief (ECF
No. 24).
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jurisdictions. (Mov. Br. pp. 4-6.) In a failed attempt to avoid this result, Plaintiff now attempts to
manufacture a fact issue regarding her residency.2 (Op. Br. p. 15.)
Not only is this argument unsupported by case law, it is directly contradicted by Plaintiff's
own allegations in her Complaint. Plaintiff argues that her "Complaint alleges that Plaintiff was a
New York resident at all relevant times." (Op. Br. p. 15.) However, nowhere in her Complaint
does Plaintiff claim New York domicile or residency. Rather, in addition to expressly alleging
that "Plaintiff is a citizen and resident of South Africa," all other supporting facts
alleged in Plaintiff's Complaint -- including that she met Decedent when he was visiting Cape
Town, that she repeatedly would "travel to the United States" "for one to two weeks at a time,"
and that she "flew home to South Africa" (Comp1.11 16, 38, 46, & 50) -- confirm her claimed
South African residency.
Plaintiff further argues that there is a factual question regarding her New York residency
because "she had always wanted to live in New York, Epstein's co-conspirators got Plaintiff a visa
so that she could travel to New York often, and when she visited she stayed at Epstein's New York
home for one to two weeks at a time." (Op. Br. p. 15). None of these allegations, even if true,
would suffice to establish Plaintiff's residency in New York under the New York borrowing
statute. See Gold v. Katz, No. 90 CIV. 7726 (RLC), 1991 WL 237807, at •2 (S.D.N.Y. Nov. 4,
1991) ("The test for domicile has two elements: '(r]esidence in fact, coupled with the purpose to
make the place of residence one's home.'" (quoting Texas v. Florida, 306 U.S. 398, 424 (1939));
Bache Halsey Stuart Inc. v. Namm, 446 F. Supp. 692, 695 (S.D.N.Y. 1978Xin determining
2 "An individual can have only one state of residence for purposes of the borrowing statute, and that is the state of his
domicile." Bache Halsey Swan Inc. v. Namm, 446 F. Supp. 692, 694 (S.D.N.Y. 1978). Furthermore, lain
individual's residence at the time a lawsuit is commenced provides prima facie evidence of his domicile." Willis v.
Westin Hotel Co., 651 F. Supp. 598, 601 (S.D.N.Y. 1986). Plaintiff's Complaint expressly states that "Plaintiff
is a citizen and resident of South Africa." (Compl. r 16). Therefore, New York's borrowing statute applies.
-2.
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residency under the borrowing statute, "[w]hat is vital is whether the Namms' Connecticut or New
York residence is where they intended to maintain their home"). On their face, allegations that
Plaintiff needed a visa to visit New York reveal her current claims of residency are nothing more
than an after-the-fact concoction.
Furthermore, even if Plaintiff had also alleged in her Complaint that she was a New York
resident -- which she did not do -- such an allegation would not preclude dismissal of her claims
in the face of her numerous allegations establishing she was not a New York resident during the
relevant time period. "'Where [the] plaintiff's own pleadings are internally inconsistent, a court
is neither obligated to reconcile nor accept the contradictory allegations in the pleadings as true in
deciding a motion to dismiss."' Whitley v. Bowden, No. 17-cv-3564 (KMK), 2018 WL 2170313,
at *11 (S.D.N.Y. May 9, 2018) (quoting Carson Optical Inc. v. eBay Inc., 202 F. Supp. 3d 247,
255 (E.D.N.Y. 2016)).
Finally, even if New York's borrowing statute does not apply, for the reasons set forth in
the Co-Executors' moving brief and herein, Plaintiff's claims are still untimely under New York
law.
II. The 20-year limitations period in CPLR § 213-c does not apply retroactively or to
torts allegedly committed outside New York.
In her opposition brief, Plaintiff argues that CPLR § 213-c, which provides a 20-year
limitations period for certain civil claims based on sexual offenses that constitute specific New
York penal law violations, revives her claims. Plaintiff's argument fails for at least two reasons.
First, the 20-year limitations period in CPLR § 213-c does not apply to Plaintiff's claims
because they were already time-barred by 2007 at the latest, which was long before the non-
retroactive 20-year limitations period in CPLR § 213-c became effective. The 20-year limitations
period in CPLR § 213-c became effective as of September 18, 2019; the previous limitation period
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therein was 5 years as of 2006 and 1 year before then. L. 2006, ch. 3, § 5(b). The law enacting
the 20-year limitations period unequivocally states that it does not apply retroactively except
"where the applicable statute of limitations in effect on the date of such act or omission has not yet
expired." L. 2019, ch. 315, § 4. Here, Plaintiff's claims expired over a decade before the 20-year
statute of limitations became effective—so it is inapplicable.
Second Plaintiffs allegations of torts occurring outside New York cannot constitute
violations of New York penal law that serve as necessary predicates to the application of CPLR §
213-c. See People v. McLaughlin, 80 N.Y.2d 466, 471 (1992) ("Because the State only has power
to enact and enforce criminal laws within its territorial borders, there can be no criminal offense
unless it has territorial jurisdiction"). In an attempt to avoid this well-established principle,
Plaintiff argues that her claims based on torts that occurred outside New York still somehow
accrued under New York law. This argument is both nonsensical and contrary to other black-letter
law. See Corcoran v. New York Power Auth., No. 95 CIV. 5357 (DLC), 1997 WL 603739, at •5
(S.D.N.Y. Sept. 29, 1997) ("An action for battery accrues when the nonconsensual offensive
contact occurs."); Lettis v. U.S. Postal Serv., 39 F. Supp. 2d 181, 204 (E.D.N.Y. 1998) ("Causes
of action for assault and battery accrue immediately upon the occurrence of the- tortious act");
Wilson v. Erra, 94 A.D.3d 756, 756, 942 N.Y.S.2d 127, 129 (2012) ("A cause of action alleging
intentional infliction of emotional distress accrues on the date of injury").
III. Plaintiff is unable to invoke CPLR § 215(8Xa) because she fails to assert a criminal
i nd let ment that arises from Decedent's alleged conduct towards her.
In her opposition brief, Plaintiff confirms her allegation is that she did not even meet
Decedent until she was already an adult. Nonetheless, Plaintiff continues to urge the application
of CPLR § 215(8)(a) to this action based on an Indictment charging Decedent with sex trafficking
of minors. However, to invoke CPLR § 215(8)(a), Plaintiff is required to assert allegations
-4.
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establishing the Indictment and this lawsuit arise from the same "event or occurrence." Plaintiff
fails to do this.
Instead, Plaintiff attempts to recast the Indictment as broader in scope than its contents
allow. Specifically, Plaintiff takes two allegations concerning Decedent's purported actual
knowledge of the age of some of the "minor victims" out of context to imply adult women were
the subject of the Indictment. (Op. Br. p. 6).3 This is disingenuous. The Indictment does not
reference any adult victims. Rather, all the facts alleged in the indictment refer to Decedent's
alleged conduct towards "minor girls" or "minor victims" (Indictment at ¶¶ 1-4, 6, 8, 11-15 18-
19, et seq.); and the two counts of the indictment, for Sex Trafficking Conspiracy and Sex
Trafficking, charge crimes involving minors (id at ¶¶ 20 & 24).
Plaintiff next tries to expand the scope of CPLR § 215(8Xa)'s "event or occurrence"
requirement. However, the cases cited in the Co-Executors' moving brief confirm that, even
where it is undisputed that the subject criminal indictment concerns the civil plaintiff and the
same kind of conduct alleged in the plaintiff's civil complaint, CPLR § 215(8Xa) still does not
apply where the indictment and civil action arise from different events or occurrences. (See
Mov. Br. pp. 7-10.) Plaintiff's attempt to distinguish these cases on the ground that they
"focused on events that occurred on specified dates" (Op. Br., p. 8) is based on Plaintiff's
dubious assertion that, because the Indictment at issue here "was not limited to a specific day or
discrete event" (id., p. 10), anyone alleging she suffered the same type of misconduct described
in the Indictment is free to invoke CPLR § 215(8Xa). Such a reading is s contrary to basic
3 The full sentences in the Indictment which Plaintiff references are as follows: "JEFFREY EPSTEIN, the defendant,
knew that many of his New York victims were underage, including because certain victims told him their age;" and
"JEFFREY EPSTEIN, the defendant, knew that certain of his victims were underage, including because certain
victims told him their age." (Indictment at ¶¶ I I & 17.)
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principles of statutory interpretation prohibiting a reading of a statute that would render its words
meaningless (see 97 NY Jur Statutes § 185), the case law cited in the Co-Executors' moving
brief, a plain reading of the Indictment and common sense.4
IV. Plaintiff fails to meet her burden to allege "extraordinary" circumstances sufficient
to invoke equitable estoppel or tolling.
Plaintiff misstates the pleading burden with respect to equitable estoppel and tolling,
asserting that "Defendants have failed to meet their burden of showing that [she] will be unable to
invoke equitable estoppel and equitable tolling." (Op. Br. p. I.) Plaintiff has it backwards. As
explained in the Co-Executors' moving brief, the burden is on Plaintiff to sufficiently allege
"extraordinary circumstances" to invoke these doctrines. (Mov. Br. pp. I, 12-15.)
In her opposition brief, Plaintiff does not address many of the cases that the Co-Executors
cite on this point, but rather attempts to buttress her Complaint by painting a slightly more detailed
(but still insufficient) picture of why she waited 15 years to bring this action. However, Plaintiff's
Complaint is controlling. In her Complaint, Plaintiff does not allege: any particularized acts by
Decedent that prevented her from exercising her rights; that Decedent made a misrepresentation
to her and had reason to believe she would rely on it; or that she reasonably relied on any
misrepresentation by Decedent to her detriment.
Excluding vague allegations concerning Decedent's alleged misconduct directed at some
unidentified set of alleged victims that does not include Plaintiff (see, e.g., Comp!. y 26
("[Decedentj utilized his seemingly unlimited power, wealth, and resources... intimidate and
manipulate his victims"),5 Plaintiff primarily alleges her impressions and emotions between
Plaintiff also once again relies on Kashef v. BNP Paribas S.A., 925 F.3d 53 (2d Cir. 2019), notwithstanding that the
Co-Executors already demonstrated that it is distinguishable from this action. (Mov. Br. p. 10.)
s Many of Plaintiff's allegations are cut-and-pasted from the complaints of other plaintiffs represented by the same
counsel and lack any ascribed basis other than Plaintiff's impression of Decedent's wealth.
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2002 and 2004, rather than Decedent's conduct. (Id. ¶ 44, 45, 48.) Not a single case Plaintiff
cites supports a finding that such allegations satisfy the "extraordinary circumstances" pleading
burden required to invoke estoppel or tolling. To the contrary, the cases Plaintiff cites are either
inapplicable6 or confirm her allegations fall short of that threshold.7
While Plaintiff claims that "Epstein attempted to keep in contact with Juliette through e-
mail over the years" following Plaintiff's cutting tics with him in 2004, she cites to two emails
that neither contain threats nor misrepresentations—hardly "extraordinary circumstances." In
any event, the cited emails, which are dated to 2016 and 2019, cannot serve as justification for
Plaintiff's failure to pursue her claims for the more-than-ten-year gap between when she "cut
ties" with Decedent and when she corresponded with him.
V. Judge Engelmayer recently dismissed two other plaintiffs' punitive damages claims
as a matter of law, rejecting the very arguments Plaintiff raises here.
The Hon. Paul A. Engelmayer recently dismissed punitive damages claims on the pleadings
in two other actions against the Co-Executors involving claims similar to those Plaintiff raises in
this action. See e.g., Doe v. Indyke, No. 19-cv-10758 (PAE), 2020 WL 2036707, at *1 (S.D.N.Y.
Plaintiffs reliance on v. No. 15-CV-5359 (KMK), 2016 WL 5720811, at *11 (S.D.N.Y. Sept. 30,
2016)—to support her assertion that reasonable fear of retaliation "may be sufficient" to warrant equitable tolling (Op.
Br. p. 17)—is misleading. In that action, the court granted a pro se prisoner leave to allege facts sufficient to show he
pursued his claims with reasonable diligence. Id. at *39. However, the Court was clear that its findings were based
on plaintiff's incarceration and pro se status. See id. at *35, 39 ("in the prison context, reasonable fear of retaliation
may be sufficient"; "given Plaintiff's pro se status ... the Court is hesitant to dismiss [his] claims"). As Plaintiff is
neither a prisoner nor proceeding pro se, is inapplicable.
7 In Funk v. Belnefiekhim, No. 14-CV-0376 (BMC), 2019 WL 3035124 (E.D.N.Y. July II, 2019), which Plaintiff also
cites, the court found the plaintiffs "alleged extraordinary circumstances that could warrant the application of equitable
tolling: they were drugged, kidnapped, flown to Belarus, held captive, and tortured for 383 and 483 days, respectively."
Id. at *2. There are no such allegations here. The other cases Plaintiff cites likewise support the conclusion she has
not met her burden to allege extraordinary circumstances. See Gatlin v. Lederman, No. 05-CV-1899 (ILG), 2006 WL
1154817, at *30 (E.D.N.Y. Apr. 28, 2006) (plaintiffs in medical malpractice action alleged defendants failed to provide
them with, and intentionally and fraudulently attempted to discourage and prevent them from obtaining, their medical
records); Gen. Stencils, Inc. v. Chiappa, 219 N.E.2d 169, 171 (N.Y. 1966) (plaintiff was allowed to invoke NM
estoppel against a bookkeeper who had used his position to carefully conceal his theft of the plaintiff's money);
v. Parkchester S. Condos., 287 F.3d 58, 59 (2d Cir. 2002) (employee argued his medical condition prevented him
from timely filing his complaint); Guobadia v. Irowa, 103 F. Supp. 3d 325, 341 (E.D.N.Y. 2015) (plaintiff filed her
lawsuit less than a year after leaving a home where she was allegedly forced to work without pay as a servant).
-7.
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Apr. 28, 2020) (granting motion to dismiss punitive damages against the Co-Executors); Doe 15
v. Indyke, No. 19-cv-10653 (PAE), 2020 WL 2086194, at *1 (S.D.N.Y. Apr. 30, 2020) (same). In
doing so, Judge Engelmayer correctly rejected each of the arguments Plaintiff asserts here in
support of her request to continue to pursue her legally deficient claim for punitive damages.
First, Judge Engelmayer rejected the argument that a motion to dismiss a legally deficient
claim for punitive damages on the pleadings is procedurally improper: "where punitive damages
have been unavailable as a matter of law, courts have not hesitated to dismiss prayers for such
damages at the threshold." Doe, 2020 WL 2036707, at *3; see also Doe 15, 2020 WL 2086194,
at *1. "[A]mple authority permits striking prayers for punitive damages where such relief is
unavailable as a matter of law." Id. at *4 (citing In re Merrill Auction Rate Sec. Litig., 851
F. Supp. 2d at 544).8
Discarding the "conceptual debate" between motions filed under Rule 12(bX6) and Rule
12(9, Judge Engelmayer further concluded that the Court could in any event dismiss claims for
punitive damages sua sponte under Rule 12(f) because: "With numerous personal injury actions
pending against the Epstein estate as a result of the recent enactment of the New York Child
Victims Act, there is value in clarifying—for the parties and settlors—the damages available in
actions where the law permits a sure answer on this point." Doe, 2020 WL 2036707, at *5. The
same practical wisdom applies here.
Second, Judge Engelmayer rejected Mary Doe's and Jane Doe 15's attempts to apply
United States Virgin Islands law to the issue of punitive damages, finding that the law of the place
8 See also C. & A. M, 5C Fed. Prac. & Proc. Civ. § 1380 (3d ed.) ("the technical name given to a motion
challenging a pleading is of little importance inasmuch as prejudice to the nonmoving party can hardly result from
treating a motion that has been inaccurately denominated as a motion to strike as a motion to dismiss the complaint");
In re Merrill Auction Rate Sec. Litig., 851 F. Supp. 2d 512, 544 (S.D.N.Y. 2012) (granting defendant's motion
to strike sections of first amended complaint asserting punitive damages); Nash v. Coram Healthcare Corp., No. 96
Civ. 0298 (LMM), 19% U.S. Dist. LEXIS 9101, at •I5 (S.D.N.Y. June 27, 1996) ("The motion to strike the punitive
damages prayer from the Complaint is granted.").
-8.
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of the torts governs. Doe, 2020 WL 2036707, at *5-6; Doe 15,2020 WL 2086194, at *2 (S.D.N.Y.
Apr. 30, 2020). As established in the Co-Executors' moving brief, none of the jurisdictions where
Plaintiff alleges the torts occurred permits punitive damages against a deceased tortfeasor's estate.
(ECF No. 24 pp. 16-18.)
Moreover, Plaintiff here, like Mary Doe and Jane Doe 15, ignores Blisset v. Eisensmidt,
940 F. Supp. 499, 457 (N.D.N.Y. 1996). That well-reasoned decision establishes that Plaintiff
may not have the Court simultaneously apply the first sentence of E.P.T.L. § 11-3.2(a)(1)—the
portion of the statute permitting her to bring this action against the Co-Executors—but disregard
the very next sentence precluding punitive damages. See Blisset, 940 F. Supp. at 457. To quote
Judge Engelmayer, it would be "problematic for [Plaintiff] to cherrypick within that provision,
invoking the part that authorizes a personal injury suit against an executor while disclaiming the
balance, which delimits the recovery available in such a suit." Doe, 2020 WL 2036707, at *6
(S.D.N.Y. Apr. 28, 2020) (citing Blisset, 940 F. Supp. at 457).9
Third Judge Engelmayer ruled that the choice-of-law debate (Le., New York law vs. USVI
law) is "academic." Id. at *7. "That is because, while the USVI does not have a statute on point
and USVI courts have not squarely resolved the issue, it is likely that USVI common law would
not permit an award of punitive damages against an estate." Id. See also Doe 15, 2020 WL
2086194.2 (S.D.N.Y. Apr. 30, 2020) ("Doe does not have any stronger argument than did Mary
Doe that USVI law applies ... or, if it did, that it would permit such damages").
9 Like the plaintiffs in Mary Doe and Doe 15, Plaintiff also erroneously relies on Nat? Jewish Democratic Council v.
Adelson, No. 18 Civ. 8787 (JPO), 2019 U.S. Dist. LEXIS 168675, (S.D.N.Y. Sept. 30, 2019). Even under the
framework of Adelson, the place where a tort occurs has the greater interest in applying its laws and policies on
punitive damages. Further, and as Judge Engelmayer found, Adelson is inapposite where, as here, the current lawsuit
"does not build on a prior litigation in, or (is not) based on the law of, the USVI." See Mary Doe, 2020 WL 2036707,
at •7.
-9.
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Plaintiff in this action misapplies the Banks analysis factors, which USVI courts use to
determine common law. See Banks v. Intl Rental & Leasing Corp., 55 V.I. 967, 979 (2011). As
Judge Engelmayer found, a proper Banks analysis demonstrates: (Factor 1) "USVI courts have
repeatedly cited the Restatement (Second) of Torts § 908 favorably"; (Factor 2) consistent with
the Restatement, most U.S. jurisdictions do not permit an award of punitive damages against a
tortfeasor's estate; and (Factor 3) USVI courts appear comfortable with the majority rule. Doe,
2020 WL 2036707, at *8.
Plaintiff's remaining arguments fail for the same reasons applied by Judge Engelmayer in
Mary Doe and Jane Doe 15. Plaintiff argues that, because the USVI Attorney General seeks
punitive damages against the Estate in an unrelated civil racketeering lawsuit, punitive damages
are allowed under USVI law. (Opp. at 22, n.9.) "But the decision by a government lawyer to
attempt to obtain such damages in a high-profile case involving allegations of extreme conduct ..
. do not speak to the question that the third Banks factor assays: which rule of law best durably
servers the USVI's interests." Doe v. Indyke, 2020 WL 2036707, at *8.
Separately, Plaintiff's reliance on Crabtree a ref Kemp v. Estate of Crabtree, 837 N.E.2d
135, 139 (Ind. 2005), is misplaced. The court in that action held "Indiana law does not permit
recovery of punitive damages from the estate of a deceased tortfeasor."
CONCLUSION
For the reasons stated above and in their moving brief (ECF No. 24), the Co-Executors
respectfully request that the Court grant their motion to dismiss, together with such other and
further relief as the Court deems just and proper.
- 10.
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Dated: New York, New York Respectfully submitted,
May 26, 2020
TROUTMAN SANDERS LLP
875 Third Avenue
New York, NY 10022
[Phone Redacted]
By:/s/ Bennet J. Moskowitz
Bennet J. Moskowitz
Attorneys for Defendants
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