2020.09.28%20Response%20to%20Opposition.pdf

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS & ST. JOHN
*********************************
GHISLAINE MAXWELL,
Plaintiff,
v.
ESTATE OF JEFFREY E. EPSTEIN,
DARREN K. INDYKE, in his capacity as
EXECUTOR OF THE ESTATE OF
JEFFREY E. EPSTEIN, RICHARD D.
KAHN, in his capacity as EXECUTOR OF
THE ESTATE OF JEFFREY E. EPSTEIN,
and NES, LLC, a New York Limited
Liability Company
Defendants.
CIVIL NO. ST-20-CV-155

CO-EXECUTORS’ REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS

DARREN K. INDYKE and RICHARD D. KAHN, by and through their undersigned
counsel, in their capacity as Co-Executors of the Estate of Jeffrey E. Epstein (the “Estate”), and
on behalf of the Estate and NES, LLC (“NES”), an entity administered in probate by the Co Executors as part of the Estate, respectfully submit this Reply Brief in further support of their
Motion to Dismiss the Complaint filed in this action on May 1, 2020 (the “Motion to Dismiss”).

I. MAXWELL’S CLAIM FOR COMMON LAW INDEMNIFICATION IS UNRIPE
AND SHOULD BE DISMISSED.

Maxwell initially filed her Complaint prematurely in violation of 15 V.I.C. § 606(a).
(Motion to Dismiss at 1–2, 4–6.) After forcing the Co-Executors to file the Motion to Dismiss,
Maxwell implicitly conceded her error and, on June 1, 2020, jointly moved with the Co-Executors
for a stay of this action until the required one-year waiting period had passed. While the Court
granted the stay on August 3, 2020, and Maxwell is no longer in violation of section 606(a), her
claim for common law indemnification remains unripe for adjudication until judgments are
rendered in the underlying actions against her pending in New York state and federal courts.

Under the ripeness doctrine, courts in the Virgin Islands “will defer from ruling on a claim
when ongoing or potential future litigation precludes an informed determination of the issues.”
Simon v. Joseph, 59 V.I. 611, 628 (V.I. 2013). For example, in Simon, the plaintiff, a convicted
felon, pursued a legal malpractice action in Superior Court against his criminal defense attorney
while his habeas corpus petitions were on appeal in federal and local courts and while the Ethics
and Grievance Committee of the Virgin Islands Bar Association investigated the attorney’s
conduct. Id. at 615–20. After Simon’s attorney moved to dismiss, the Superior Court considered
Simon’s claims on their merits, ultimately granting the motion. Id. On appeal, the Supreme Court
vacated the decision, holding that the Superior Court “committed a fundamental error” when it
considered any aspect of Simon’s claims on the merits rather than sua sponte dismissing the
complaint for lack of ripeness. Id. at 621. Because Simon’s criminal appeal and other related
actions had not yet been decided (and he still had the ability to file additional habeas petitions),
the Superior Court “severely disrupted comity amongst federal and local courts by creating
inconsistent adjudications of essentially the same factual and legal issues.” Id. at 630.

Similarly, in Virgin Islands Government Hospitals and Health Facilities Corp. v.
Government of the Virgin Islands, 50 V.I. 276 (V.I. 2008), the Supreme Court vacated an order
granting an award of attorney’s fees because “the presence of ongoing litigation precludes an
informed determination of whether the moving party is in fact entitled to attorney’s fees under the
relevant law” and “the prevailing party [could not yet] be ascertained.” Id. at 280–81. And in
Virgin Islands Water and Power Authority v. Sound Solutions, LLC, the Superior Court dismissed
a claim seeking costs and fees arising from an ongoing underlying case as unripe, holding that
determination of the issue would “force this Court to assess and rule on whether Defendants’
[underlying case] is meritorious before such a determination has been made in that case itself” and
“there is a substantial possibility that the final disposition in [the underlying case] would moot this
cause of action here, or at least substantially alter the appropriate remedy.” No. ST-14-cv-558,
2015 WL 3429078, at *4–5 (V.I. Super. Ct. May 27, 2015). As the Sound Solutions court found,
“[i]t would be improper to allow this case to proceed when the relevant facts are so unstable.” Id.
at *5.

The same reasoning applies here, where the predicate criminal and civil actions accusing
Maxwell of sexual abuse and other misconduct are pending in front of various state and federal
courts.1 As a matter of public policy, Maxwell cannot be indemnified for intentional wrongdoing,
including criminal conduct.2 As a result, any determination of Maxwell’s common law

1. The Co-Executors previously described the civil actions pending against Maxwell in the New York
state and federal courts. (Motion to Dismiss at 3 n.3.) On June 29, 2020, Maxwell was criminally
indicted in the Southern District of New York for conspiracy to entice minors to travel to engage in
illegal sex acts, enticement of a minor to travel to engage in illegal sex acts, conspiracy to transport
minors with intent to engage in criminal sexual activity, transportation of a minor with intent to engage
in criminal sexual activity and two counts of perjury. (See Indictment, a copy of which is attached
hereto as Exhibit D (Exhibits A-C were attached to the original Motion to Dismiss).) Her criminal trial
is scheduled to begin in New York federal court on July 12, 2021.
2. As this Court has held, “an agreement is against public policy if it is injurious to the interests of the
public . . . . The Court has a duty to refuse to enforce a contract that is contrary to public policy and
tends to injure the public good.” Berne Corp. v. Government of the Virgin Islands, 46 V.I. 106, 115
(V.I. Super. Ct. 2004). Courts across the country—including in New York, where the underlying
actions against Maxwell are pending—hold that indemnification for intentional wrongdoing is against
public policy because it would promote illegality and allow a wrongdoer to cause intentional injury
with impunity. See, e.g., Austro v. Niagara Mohawk Power Corp., 66 N.Y.2d 674, 676 (1985)
(indemnification of party for “damages flowing from the intentional causation of injury” void as against
public policy); Equitex, Inc. v. Ungar, 60 P.3d 746, 750 (Colo. App. 2002) (“Public policy prohibits
‘indemnifying a party for damages resulting from intentional or willful wrongful acts.’”) (quoting
Bohrer v. Church Mut. Ins. Co., 12 P.3d 854, 856 (Colo. App. 2000)); In re RFC and RESCAP
Liquidating Tr. Action, 332 F.Supp. 3d 1101, 1134–35 (D. Minn. 2018) (indemnification void as against
public policy “where the indemnitor shows that the indemnitee’s underlying conduct was intentional,
willful, or wanton”). See also Restatement (Third) of Torts § 22(e) (“Except for contractual indemnity,
a vicariously liable person can obtain indemnity from the person whose negligence was imputed only
indemnification claim in this proceeding risks inconsistent adjudication, wastes judicial resources,
and threatens to disrupt comity between New York and Virgin Islands courts. In addition, if
Maxwell’s claim is allowed to proceed, discovery and fact-finding will have to be duplicated, and
discovery in this case regarding the facts and circumstances of the underlying civil and criminal
cases against Maxwell will have to be taken while those underlying cases are ongoing. Moreover,
common law indemnity may not apply at all if any of numerous different events relating to the
underlying proceedings occur, including if Maxwell is found (1) guilty of the crimes with which
she is charged, or (2) civilly liable due to her own misconduct toward young girls, rather than her
performance of legitimate, employment-related duties for Mr. Epstein or his affiliated businesses.
In these circumstances, the doctrine of ripeness requires dismissal of Maxwell’s common law
indemnification claim.3

The authorities Maxwell cites in her Opposition reinforce the Co-Executors’ position.
Those sources make clear that, because an indemnitee must discharge liability of the indemnitor
in order to receive indemnification, an indemnitee may not plead a claim for common law
indemnity unless it is (i) in the original suit, while that original suit is pending, or (ii) in a separate,

if the vicariously liable person is not independently liable.”); 8 Williston on Contracts § 19:19 (4th ed.)
(indemnification agreements “tending to promote a breach of duty to the public” generally not upheld).
Cf. Willie v. Amerada Hess Corp., 66 V.I. 23, 34 (V.I. Super. Ct. 2017) (conducting an analysis under
Banks v. International Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011), and finding that the Virgin
Islands recognizes common law indemnification “when an innocent party is held vicariously liable for
the actions of the true tortfeasor”) (emphasis in original).
3. Courts in other jurisdictions also have found unripe claims for common law indemnification brought
in a separate action prior to determination of the underlying proceedings. See, e.g., Medline Indus.,
Inc. v. Ram Med., Inc., 892 F. Supp. 2d 957, 966–67 (N.D. Ill. 2012) (dismissing claim for common
law indemnification under Illinois law as unripe when no underlying judgments had yet been rendered);
Lincoln Gen. Ins. Co. v. Kingsway Am. Agency, Inc., No. 1:11-CV-1195, 2013 WL 214634, at *10
(M.D. Penn. Jan. 18, 2013) (same, under Pennsylvania law); Gramercy Advisors, LLC v. BDO USA,
LLP, No. FSTCV136020625S, 2015 WL 2191655, at *3–4 (Conn. Sup Ct. Apr. 9, 2015) (same, under
Connecticut law).
“subsequent suit against the indemnitor.” Restatement (Third) of Torts § 22, cmt. i (emphasis
added) (listing cases); see also Willie v. Amerada Hess Corp., 66 V.I. 23, 30 (V.I. Super. Ct. 2017)
(denying motion to dismiss counterclaims for common law indemnification where claims were
brought in original tort suit); Manbodh v. Hess Oil Virgin Islands Corp. (In re Kelvin Manbodh
Asbestos Lit. Series), 47 V.I. 375 (V.I. Super. Ct. 2006) (in original tort action where various
parties brought claims for common law indemnification against third-party defendants, converting
motions to dismiss to motions for summary judgment and holding that the Restatement (Third) of
Torts set forth applicable law). None of these sources supports Maxwell’s argument that she may
pursue this independent action for common law indemnification while the underlying actions
against her—both criminal and civil—remain pending in other jurisdictions.

In particular, Maxwell’s contention that Willie “expressly allows a party to ‘plead’ a
common law indemnification claim before a judgment has been rendered,” is critically misleading
as applied to the present facts. (See Opposition at 6.) In performing a Banks analysis to determine
the soundest rule for the Virgin Islands with respect to common law indemnification,4 the Willie
court canvassed Virgin Islands precedent since 1980, concluding that there are two types of
common law indemnification cases. In the first type of indemnity case, a party may plead an
indemnity claim before it is found liable if it does so “through a counterclaim or third-party
complaint” in the underlying liability action. Id. This was the situation in Willie. In the second
type of case, a party may bring a separate claim for indemnification “after a party has been found
liable” in the underlying liability action. Id. (emphasis added). Thus, in a separate action for
indemnification—such as the present case—a purported indemnitee (here, Maxwell) may not

4. Until the Supreme Court rules on this issue, it remains an open question whether a claim for common
law indemnification is a viable cause of action in the Virgin Islands post-Banks.
assert a claim for common law indemnification unless and until her liability has been determined
in the underlying actions.5

II. MAXWELL’S CLAIM AGAINST NES FAILS.6

A. The Court Should Dismiss Maxwell’s Claim Against NES as a Matter of Law.

Maxwell alleges upon information and belief that NES’s governing corporate documents
entitle her to the advancement of expenses and indemnification that she now demands. (Compl.

5. All three of the other decisions cited by Plaintiff—Vandenhouten v. Olde Towne Tours, LLC, No.
20008-41, 2009 WL 1956360, at *5 (D.V.I. July 8, 2009), Davis v. Sunrise Med. (US), LLC, No.
2012/29, 2013 WL 3775461, at *6 (D.V.I. July 17, 2013) and Manbodh, 47 V.I. 392–95—are the first
type of case, where an indemnity claim was asserted in an existing action as a counterclaim or third party claim, and are therefore inapplicable here. Moreover, while Maxwell incorrectly asserts that
Manbodh is directly contrary to the relevant holding in Willie, Manbodh says nothing about bringing a
separate claim for indemnification while the underlying action remains pending, and that was not the
situation faced by that court. Instead, Manbodh holds that the Restatement (Third) of Torts, rather than
the First or Second Restatements, sets forth applicable law. Id. at 392–94. As discussed above, the
Restatement (Third) of Torts provides that a claim for indemnification may be brought in the original
underlying action or a subsequent suit:

Except when a contract for indemnity provides otherwise . . . an indemnitee must extinguish the
liability of the indemnitor to collect indemnity. The indemnitee may do so either by a settlement
with the plaintiff that by its terms or by application of law discharges the indemnitor from liability
or by satisfaction of judgment that by operation of law discharges the indemnitor from liability.
. . . An indemnitee may, however, assert a claim for indemnity and obtain a contingent judgment
in an action where the indemnitee is sued by the plaintiff as permitted by procedural rules, even
though liability of the indemnitor has not yet been discharged.

Restatement (Third) of Torts § 22(b) (emphasis added, in part); see also cmt. i (quoted above), notes to
cmt. i (“[V]irtually all states permit the indemnitee to assert his claim in the original suit, by cross complaint or impleader, or in a subsequent suit against the indemnitor.”) (emphasis added).
6. The Court also should dismiss Maxwell’s claims against the Estate itself. While Maxwell continues to
incorrectly assert that the Estate is a legal entity that can be sued (see Opposition at 3–4), it is a basic
tenet of trusts and estates law that “[a]n estate is not a person or a legal entity and cannot sue or be sued;
an estate can only act by and through a personal representative and therefore any action must be brought
by or against the executor or representative of the estate.” 34 C.J.S. Executors and Administrators §
847; see also, e.g., 31 Am. Jur. 2d Executors and Administrators § 1141 (2016) (“Since estates are not
natural or artificial persons, and they lack legal capacity to sue or be sued, an action against an estate
must be brought against an administrator or executor as the representative of the estate.”); Campbell v.
Estate of Kilburn, No. 3:13-cv-00627-LRH-WGC, 2014 WL 3613701, at *3 (D. Nev. July 21, 2014)
(“It has long been recognized that an estate is not a legal entity, but rather a collection of assets and
liabilities. Consequently, an estate cannot sue or be sued, and it is thus proper to name the representative
¶ 47.) However, when presented with the actual corporate document in question—the NES
Operating Agreement—Maxwell ignores the effect of that document, which unambiguously
allows NES to decline her claims for indemnification and advancement of fees and expenses. (See
Motion to Dismiss 6–8.)7 Instead, Maxwell contends that she should be allowed to conduct a
fishing expedition in the hopes of finding some other document that might undermine the
unambiguous language of NES’s Operating Agreement. That is not the law.

As Maxwell acknowledges, courts deciding a motion to dismiss may consider “items of
unquestioned authenticity that are referred to in the challenged pleading and are integral to the
pleader’s claim for relief.” (Opposition at 11 n.7.) Put another way, this Court is free to consider
“documents whose contents are alleged in the complaint and whose authenticity no party
questions, but which are not physically attached to the pleadings.” Groff v. Cane Bay Partners VI,
LLLP, No. SX–15–CV–127, 2017 WL 2709832, at *1–2 (V.I. Super. Ct. June 20, 2017). “The
reasoning underlying this approach is particularly sound where the exhibit being considered is the
very document forming the basis of a plaintiff’s complaint.” Id. at *1.8

of the estate, rather than the estate itself, as a party.”). This principle is reflected in 15 V.I.C. § 606
(“Commencement of action against executor or administrator”). While Maxwell cites cases in which
an estate has been named as a defendant, there is no indication that the status of the estate as a entity
with the capacity to be sued was at issue in any of those proceedings. The Court should decline
Maxwell’s invitation to create law recognizing an estate as a separate legal entity here.
7. The NES Operating Agreement also forbids indemnification for “fraud, gross negligence, or reckless
or intentional misconduct.” (NES Operating Agreement, attached as Exhibit C to the Motion to
Dismiss, § VI.B.1.)
8. As discussed in the Co-Executors’ opening brief (Motion to Dismiss at 6–7 & n.7), the “incorporation
by reference” doctrine “permits a court to review the actual document referenced in the complaint ‘to
ensure that the plaintiff has not misrepresented its contents and that any inference the plaintiff seeks to
have drawn is a reasonable one’ . . . [and] ‘limits the ability of the plaintiff to take language out of
context.’” Hess Oil Virgin Islands Corp. v. Daniel, No. SX-05-CV-165, 2020 WL 1819622, at *8 (V.I.
Super. Ct. Apr. 8, 2020) (quoting Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752, 797 (Del. Ch.
2016), overruled in part on other grounds by Tiger v. Boast Apparel, Inc., 214 A.3d 933, 939 (Del.
2019)). “Without the ability to consider the document at issue in its entirety, complaints that quoted
only selected and misleading portions of such documents could not be dismissed under Rule 12(b)(6)
even though they would be doomed to failure.” Id. In addition, the Court may consider “a document
attached to a motion to dismiss . . . if the attached document is: “(1) central to the Plaintiff’s claim; and
(2) undisputed.” Id. (quoting Ackah v. Hershey Foods Corp., 236 F. Supp. 2d 440, 443 (M.D. Pa.
2002)). That is the case here.

Here, Maxwell does not contest the authenticity of the NES Operating Agreement attached
to the Co-Executors’ Motion to Dismiss.9 And the NES Operating Agreement is “integral” to
Maxwell’s claim that she is entitled to mandatory indemnification and the advancement of fees
and a myriad of other costs due to the “corporate organizational documents for NES.” (Compl.
¶ 47.) Under applicable New York law,10 “[t]he operating agreement is the primary governing
instrument for” a New York LLC, and must contain “any provision not inconsistent with law or
its articles of organization relating to (i) the business of the LLC, (ii) the conduct of its affairs and
(iii) the rights, powers, preferences, limitations or responsibilities of its members, managers,
employees or agents.” N.Y. Limit. Liab. Co. Ch. 34, Refs & Annos § 5.1. In other words,
Maxwell’s claim for contractual indemnification is based on her allegations about the contents of
NES’s corporate organization documents and, under New York law, the NES Operating
Agreement is NES’s corporate organization document. See Groff, 2017 WL 2709832, at *1–2 (in
a case asserting claims for breach of an employment agreement and breach of the implied covenant

9. While Maxwell argues that the Court cannot consider the NES Operating Agreement because “[t]he
operative operating agreements are not in her possession,” there is no legal or factual basis to believe
that an earlier, different version of the NES Operating Agreement even existed. (Tellingly, the language
of the NES Operating Agreement does not reference or purport to amend any prior operating
agreements.) Maxwell cites no support for the proposition that she can allege, upon information and
belief, what she believes a purported previous operating agreement may say and then defeat the Co Executors’ Motion to Dismiss based on the NES Operating Agreement by simply claiming that she
does not have that supposed earlier document.
10. NES is a New York limited liability company governed by New York law. (See Complaint p. 1
(identifying NES as a “New York Limited Liability Company”); Operating Agreement §§ I, VIII.E.)
of good faith and fair dealing, holding that the original offer letter and form employment contract
can be considered on motion to dismiss).

To the extent that Maxwell now argues that her claim for indemnification from NES is
based on an implied or unwritten corporate obligation that she might find evidence of, if only she
were allowed to rummage through NES’s files, this argument is barred by the New York Statute
of Frauds. N.Y. Gen. Oblig. Law § 5-701(a)(2) (requiring an agreement to be in writing if “by its
terms is not to be performed within one year of the making thereof or the performance of which is
not to be completed before the end of a lifetime” or it “[i]s a special promise to answer for the
debt, default or miscarriage of another person”).11 Such an argument is also barred by the Virgin
Islands Statute of Frauds. 28 V.I.C. § 244 (2019) (voiding any unwritten agreement that (1) “by
its terms is not to be performed within one year from the making thereof” or (2) constitutes “[a]
special promise to answer for the debt, default, or misdoings of another person”); see, e.g., Guye
v. Lutheran Soc. Servs. of the Virgin Islands, Inc., No. SX-10-CV-119, 2011 WL 13116070, at *3–
4 (V.I. Super. Ct. Feb. 10, 2011) (granting motion to dismiss claim for the alleged breach of an
employment agreement pursuant to the Virgin Islands Statute of Frauds where plaintiff did not
assert the existence of a valid, written agreement); Arawak Foods, Inc. v. Lawaetz, No. 764/1983,
1985 WL 1264047, at *3 (Terr. V.I. Feb. 21, 1985) (letter stating that defendant personally
guaranteed that a corporation’s debt would be paid found insufficient to satisfy the Statute of
Frauds).12

11. New York limited liability companies without written operating agreements apply the default
provisions set forth in New York statutes, which permit—but do not require—a company to choose to
indemnify employees under certain circumstances. See, e.g., In re Eight of Swords, LLC, 96 A.D.3d
839, 839 (N.Y. App. Div. 2012) (when no written operating agreement exists, the LLC is subject to the
“numerous sections in the [Limited Liability Company Law] that set forth default provisions applicable
to the limited liability company”); N.Y. Limit. Liab. Co. § 420.
12. To the extent that Maxwell’s first cause of action is based on an alleged oral promise, it is likewise
barred in its entirety by the Statute of Frauds. See, e.g., MacKay v. Paesano, 185 A.D.3d 915, 916
(N.Y. App. Div. 2020) (where breach of contract action dismissed based on Statute of Frauds,
promissory estoppel claim also correctly dismissed as an impermissible attempt to circumvent the
Statute of Frauds).

Materials outside of the NES Operating Agreement likewise are insufficient to undermine
the unambiguous language of that Agreement. See, e.g., Borriello v. Loconte, No. 503180/2013,
2014 WL 702172, at *6 (N.Y. Sup. Ct. Feb. 24, 2014) (finding that, where operating agreement
provided for indemnification but was silent on the issue of advancement of fees, LLC members
could not vote to advance legal fees); N.Y. Limit. Liab. Co. Ch. 34, Refs & Annos § 5.2.2 (material
outside of written operating agreement insufficient to find obligation in face of written operating
agreement). Finally, Maxwell’s assertions that there are “presumably” or “surely” earlier
operating agreements of NES and that she “may” have rights pursuant to those agreements
(Opposition at 9–10) are mere speculation—not even rising to the level of factual allegations—
insufficient to support her complaint. See, e.g., Brathwaite v. H.D.V.I. Holding Co., Inc., No. ST 16-CV-764, 2017 WL 2295123 at *2 (V.I. Super. Ct. May 24, 2017) (a complaint must “adequately
allge[] facts that put an accused on notice of claims brought against it”) (emphasis added).13

B. In the Alternative, the Court Should Convert this Motion to a Motion for
Summary Judgment and Dismiss Maxwell’s Claim Against NES.

To the extent that the Court concludes that it may not consider the NES Operating
Agreement on this motion to dismiss, the Court should convert this proceeding to a motion for
summary judgment under Rule 12(d) of the Virgin Islands Rules of Civil Procedure. See, e.g.,
Stanley v. Virgin Islands Bureau of Corrections, No. ST-16-MC-075, 2020 WL 1639902, at *5
(V.I. Super. Ct. Apr. 1, 2020) (holding that the notice requirement of Rule 12(d) was satisfied
where moving party attached material outside of pleadings, opposing party noted that it was
outside of pleadings and that, in consideration thereof, the Cout would convert the motion to
dismiss to one for summary judgment, and opponent received additional time to respond in order
to provide contrary factual materials). “[W]hen considering a motion for summary judgment, a
trial judge can consider material outside the pleadings, including affidavits, responses to discovery,
and other evidence to determine if there is a genuine issue of material fact.” Racz v. Cheetham,
ST-17-CV-461, 2019 WL 7985359, at *2 (V.I. Super. Ct. Nov. 21, 2019) (granting summary
judgment).

Summary judgment is appropriate where, as here, “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” V.I. R. Civ. Proc. 56(a).
Once the party moving for summary judgment has demonstrated that there is no genuine issue of
material fact, “the responding party must introduce some evidence showing a genuine issue for
trial. To carry this burden, the nonmoving party may not rest on its allegations alone, but must
present actual evidence, amounting to more than a scintilla, in support of its position.” Greene v.
Virgin Islands Water and Power Authority, 67 V.I. 727, 742 (V.I. 2017) (internal citations and
quotation marks omitted). While the nonmovant may show “by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition,” V.I. R. Civ. Proc. 56(d),

13. Maxwell does not respond to that portion of the Co-Executors’ motion to dismiss Count Three of her
Complaint to the extent it seeks contractual indemnification from “other entities” not named as
defendants. (Motion to Dismiss at 8 n.8.) As the Complaint fails to allege the necessary elements of a
claim for contractual indemnification against these additional entities, the Court should dismiss Count
Three as against them.
it cannot require additional discovery without showing that “the facts sought exist.” Family Home
and Finance Center, Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008)
(affirming grant of summary judgment despite nonmovant’s argument that discovery was needed
to oppose); see also, e.g., Carney v. U.S. Dept. of Justice, 19 F.3d 807, 813 (2d Cir. 1994)
(affirming grant of summary judgment where nonmovant merely speculated about evidence that
could be adduced in discovery).

As discussed above and in the Motion to Dismiss, the language of the NES Operating
Agreement unambiguously demonstrates that NES has no obligation to indemnify Maxwell or
advance her fees and expenses. (See Motion to Dismiss at 6–9 & Ex. C.) Even if Maxwell could
adduce evidence of an implied agreement or oral promise for indemnification, such an agreement
or promise could not give rise to an enforceable indemnification obligation. (Supra § II.A.) And
while Maxwell speculates (again, without basis in law or fact) that there are “presumably” earlier
operating agreements of NES and that she “may” have rights pursuant to those hypothetical
agreements (Opposition at 9–10), such speculation—which does not even rise to the level of a
factual allegation sufficient to defeat a motion to dismiss—is insufficient to meet Maxwell’s
burden here. Because no genuine dispute of material fact exists and Maxwell offers nothing more
than her mere hope that discovery could possibly reveal something that might support her claim,
the Court should dismiss Maxwell’s claim against NES.

III. CONCLUSION

For the reasons set forth herein and in the Co-Executors’ Motion to Dismiss, the Court
should dismiss the Complaint in its entirety.14

14. In recent briefing on its motion to intervene in this action, the Government of the Virgin Islands asserts
that, where Maxwell’s claims for indemnification are concerned, “the Epstein Estate and its Co Executors clearly are inadequate to represent the Government’s interest in preserving Estate Funds . .
. ,” bizarrely accepting as gospel truth Maxwell’s allegation that one of the Co-Executors orally agreed
to indemnify her. (Gov’t of the U.S. Virgin Islands’ Reply Brief in Support of Motion to Intervene,
dated September 22, 2020, at 4 (emphasis in original).) That is nonsense: as the Court is well aware,
the Co-Executors refused to indemnify Maxwell. Maxwell brought this action seeking to obtain
indemnification; by this Motion, the Co-Executors seek to dismiss Maxwell’s claims for
indemnification in their entirety.

Respectfully,
Dated: September 28, 2020 /s/ Christopher Allen Kroblin
CHRISTOPHER ALLEN KROBLIN, ESQ.
ANDREW W. HEYMANN, ESQ.
WILLIAM L. BLUM, ESQ.
SHARI N. D’ANDRADE, ESQ
MARJORIE WHALEN, ESQ.
V.I. Bar Nos. 966, 266, 136, 1221 & R2019
KELLERHALS FERGUSON KROBLIN PLLC
Royal Palms Professional Building
9053 Estate Thomas, Suite 101
St. Thomas, V.I. 00802
Telephone: (340) 779-2564
Facsimile: (888) 316-9269
Email: ckroblin@kellfer.com
aheymann@solblum.com
wblum@solblum.com
sdandrade@kellfer.com
mwhalen@kellfer.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 28th day of September 2020, I caused a true and exact
copy of the foregoing Reply in Support of Motion to Dismiss, which complies with the page or
word limitation set forth in Rule 6-1(e), to be served via VIJEFS upon:
Kyle R. Waldner, Esq.
Quintairos, Prieto, Wood & Boyer, P.A.
9300 S. Dadeland Blvd., 4th Floor
Miami, FL 33156
kwaldner@qpwblaw.com /s/ Christopher Allen Kroblin