IN THE SUPERIOR COU RT

OF THE VIRGIN ISLANDS

FILED

December 22, 2023 02:26 PM
ST-2020-CV-00155
TAMARA CHARLES
CLERK OF THE COURT

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST THOMAS/ST JOHN 3

| GHISLAINE MAXWELL                                                                                                                                                                                                                                                                                                                  | Case No.: ST-2020-CV-00155                                                               |
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| Plaintiff, <br /><br />vs. <br /><br />ESTATE OF JEFFREY E EPSTEIN;DARREN<br />K INDYKE in his capacity as Executor of  the <br />ESTATE OF JEFFREY EPSTEIN; RICHARD<br />D KAHN in his capacity as Executor of  the <br />ESTATE OF JEFFREY EPSTEIN and NES,<br />LLC, a New York Limited Liability Company<br /><br />Defendants | PLAINTIFFS RESPONSE TO<br />DEFENDANTS MOTION TO DISMISS FOR <br />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

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 TODEFENDANTS MOTION TO DISMISS FOR FAILURE TO PROSECUTE - 1

## 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 plaintiff's response to a status hearing filed May 16th, 2023.

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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

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Plaintiffwill 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 of the Virgin Island Codes provides for such detailed in 18 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 TOPROSECUTE - 3

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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

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 7 "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.

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1 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 objection for that reason. The unclean hands doctrine is based on the principle that a party who has committed wrongdoing should not be allowed to come into court and request a remedy for its own personal benefit. In re Prosser, 2012, WL 6-7-377.81 at Star 17, Bankr V.I., December 2012, citing In RE: New Valley Corp. 181 S3d, 517-525, 3rd Circuit 1999, Sunshine Shopping Center STCTR. Inc. vs. K-Mart Corp. 42 VI, 397, 407, 85 S SUP, 2d, 537, 544, DVI, Gen 27, 2000. "It is an ancient and established maximum equity jurisprudence that he who comes into equity must come with clean hands. If a Party seeks relief in equity he must be able to show that on his part there has been 19 honesty and fair dealing." Bishop vs Bishop 257 F 2D 495 500 3rd Circuit 1958. Bishop v. Bishop, (3d Cir. 1958)

PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS FOR FAlLURETO PROSECUTE - 5

In Sunshine Shopping the court held that the defendant could be precluded from raising an equitable defense to forfeiture clause in the least dueto his own "unclean hands".

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The Estate also fails to fully consider and take into consideration Epstein's intent that he and the Estate protect and indemnify employees and co-conspirators of Epstein. This is elucidated in the non-Prosecution agreement, which is detailed in the OPR, The Report of the Office of Professional Responsibility dated November 2020.

The Department ofJustice and Epstein's representatives worked for months with prosecutors to fashion the non-prosecution agreement (NP A) that covered his employees and his co-conspirators. The document itself was described as "transactional immunity" by the prosecutors.

The prosecutors describe the NPA as conferring transactional immunity, as the broadest and strongest protection that the Department of Justice offers. Initial language included in the NPA,, "concludes the initiation of any and all criminal charges that might be in the future brought against the full co-conspirators or any employees 18 arising out of ongoing federal investigations are precluded." page 164. Whilst language was modified slightly, so as not to be so detailed, the intent was, and the broad scope of the coverage is what remained, page 166 and 237. The broad sweep of the Non- Prosecution Agreement coupled with the previous indemnification payments demonstates epsteins desire to indemnify his employees co conpsirators etc.

The co-executors have not yet identified what specific issues they contend have already been decided by the Southern District ofNew York (SONY), but are identical in this case. In fact, the narrow issues tried before the SONY do not necessarily PLAINTIFFS RESPONSE TODEFENDANTS MOTION TO DISMISS FOR FAILURE TOPROSECUTE - 6

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overlap with the Plaintiff's claims here, which include indemnification of requests to code in connection with the civil law suit filed by Jennifer Araroz. She did not testify inthe SONY proceedings.

Plaintiffs claims for indemnification relate to Investigations regarding Epstein and security services incurred in 2019 in the wake of intense media scrutiny following Epstein's arrest. To the extent that Plaintiff's claims relate to expenses that Plaintiff incurred exclusively because of Epstein's actions in such claims would be clearly not be subject to any policy bar. Simply put the SDNY Judgment of Conviction does not 12 conclusively establish any issue presented here and is not dispositive of the claims in this 13 action as previously argued in Plaintiff's response to this Court.

It should also be noted that on information and belief, that the two representatives of Epstein's estate are also substantial beneficiaries of the Estate, namely 18 DARREN INDYKE In his capacity as Executor of the Estate of Jeffrey, E. Epstein., and 19 Richard D. Kahn in his capacity as Executor of the Estate of Jeffrey E. Epstein are Employees, officers and or directors of NES. L.L.C, a New York Limited Liability Company On information and belief, Indyke and Kahn, are having their litigation expenses paid by the Estate of Jeffrey E Epstein. Epsteins clearly wanted to indemnify his employees as noted by by Indyke and Kahn's indemnification on information and belief, and on plaintiff's previous suits being indemnified by Epstein whilst he was alive and as noted in previous filings.

PLAINTIFFS RESPONSE TODEFENDANTS MOTION TO DISMISS FOR FAIL URE TO PROSECUTE - 7

PLAINTIFFS RESPONSE TODEFENDANTS MOTION TO DISMISS FOR FAILURE TOPROSECUTE - 8

Plaintiffs claims may not be barred as a matter ofpublic policy at this preliminary stage of the proceedings, and Virgin Islands' public policy is not necessarily barred Plaintiff's contractual indemnity claims because the underlying purpose of contract law is to hold parties to their agreement so thatthey receive the benefits of their bargains.

Phillip vs Marsh,- Monsanto, 6-6-VI-612, 6-21-VI-2017. Because the Virgin Islands courts have recognized the right to common law indemnity between joint tortfeasors and because, in the certain circumstances, Virgin Island provides that indemnification may be appropriate even if the indemnitee has been convicted of criminal 12 charge. And because there's no basis of our plaintiff's claim as a matter of public policy| at the rule 12 stage. And because the Southern District of New York judgment of conviction, to the extent considered does not conclusively decide any issues presented in this action.

And because co-executors's public policy defense does not apply to 18 plaintiff common law identity claims, since the defense allowed the party to avoid 19 enforcement of a contract. And because any objection to co executor's indemnification on 20 ground for public policy should be found to have been waved by Epsteins past actions.

And finally, because the co-executors may not raise any objection on indemnification on public policy grounds due to unclean hands,

## Conclusion

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Epstein having engaged in the wrongful conduct, as the court stated causing Plaintiff to incur legal and other expenses in the first place; Epstein and by association, his Estate should not be permitted to prevail in this action by relying on a salutary public policy. The plaintiff respectfully ask his court to find a Virgin Islands public 6 policy, does not bar her indemnity claims in this action.

Respectful Whited
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PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS FOR FAILURE TO PROSECUTE • 9
documents/doj-6bd110436127767.pdf
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