035.pdf

Case 1:19-cv-10476-PGG-DCF Document 35 Filed 04/28/20 Page 1 of 1
Troutman Sanders LLP
875 Third Avenue
New York, New York 10022
troutman.com

Bennet J. Moskowitz
bennet.moskowitz@troutman.com

April 28, 2020

VIA ELECTRONIC COURT FILING

Hon. Paul G. Gardephe
Thurgood Marshall
United States Courthouse
40 Foley Square
New York, NY 10007

Re: Teresa Helm, 1:19-cv-10476 (PGG) (DCF)

Dear Judge Gardephe:

We represent Defendants Darren K. Indyke and Richard D. Kahn, Co-Executors of the Estate of Jeffrey E. Epstein (together, the “Co-Executors”), in the above-referenced action. We write to supplement the Co-Executors’ pending motion to dismiss (ECF Doc. 26) with the enclosed copy of the Opinion & Order entered today by The Hon. Paul A. Engelmayer in another personal injury action against the Co-Executors (Mary Doe v. Darren K. Indyke and Richard D. Kahn, as executors of the Estate of Jeffrey E. Epstein, and Sarah Vickers, 19-civ-10758 (PAE) (DCF)). In His Honor’s Opinion & Order, Judge Engelmayer grants the Co-Executors’ motion to dismiss the plaintiff’s punitive damages claim against them as a matter of law on grounds applicable to Plaintiff’s claim for punitive damages in this action.

Respectfully submitted,

s/Bennet J. Moskowitz
Bennet J. Moskowitz

cc: Counsel of Record (via ECF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MARY DOE,
Plaintiff,
-v-
DARREN K. INDYKE and RICHARD D. KAHN,
as Executors of the Estate of Jeffrey E. Epstein,
and SARAH VICKERS,
Defendants.

19 Civ. 10758 (PAE)
OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

In this diversity action, plaintiff Mary Doe brings tort claims under New York law against, inter alia, Darren K. Indyke and Richard D. Kahn, the executors of the estate of Jeffrey Epstein (“Indyke and Kahn” or “the executor defendants”). The executor defendants now move to dismiss Doe’s claim against them for punitive damages, on the grounds that, as a matter of New York law, such damages are categorically unavailable in a personal injury action against the personal representative of an estate. For the reasons that follow, the Court grants that motion.

I. Background

A. Doe’s Complaint

Doe’s Complaint, filed on November 20, 2019, alleges a horrific course of sexual and psychological abuse at Epstein’s hands during 2004 and 2005. Cmplt. ¶¶ 1–15 (summary account); id. ¶¶ 38–106 (detailed account). It alleges that Doe came to the United States with her parents as a young refugee from a war-torn country, and was working in pursuit of a promising career as a model when, in 2004, at age 16, she met Epstein through another model. Id. ¶ 2. Epstein made clear to Doe how important and powerful he was and promised to help her with her modeling career and college admissions. Id. ¶ 3. Doe, in turn, “believed she could trust him” and “that he could change her life.” Id. ¶ 4. Epstein, however, “used his power over Mary to sexually abuse her, viciously and repeatedly.” Id. ¶ 5. Aided by defendant Sarah Vickers, Epstein’s scheduler and assistant, Epstein “would summon Mary to his Manhattan townhouse, order her to give him massages, and then subject her to sexual acts, the severity of which increased over time.” Id.; see also id. ¶ 19. The Complaint graphically chronicles Epstein’s acts of sexual abuse in the townhouse, which included forcing Doe to perform oral sex on him and later raping her. Id. ¶¶ 7–9; 56–105.

In late 2005, the Complaint alleges, Doe—as a result of an incident at the townhouse—“suddenly saw the truth: she was not even a human being to Epstein, she was an object,” and Epstein was treating her as a prostitute, “one of many girls he treated as sexual objects.” Id. ¶ 11. Doe had a breakdown, almost immediately thereafter left New York City, returned to her parents’ home across the country, and never saw Epstein again. Id. ¶ 12. Epstein’s abuse caused Doe to abandon her modeling career and left her humiliated, angry, and suicidal, with debilitating panic attacks and “dramatic psychological scars.” Id. ¶¶ 13–14. Epstein’s arrest in July 2019 gave Doe “brief[] hope that he might finally face consequences,” but his death in August 2019 at a federal jail in Manhattan “left Mary with the desolate sense that he has evaded justice yet again.” Id. ¶ 15.

In this action, Doe brings claims, under New York law, of battery, id. ¶¶ 108–13, assault, id. ¶¶ 114–19, and the intentional infliction of emotional distress, id. ¶¶ 120–27, against Indyke and Kahn, solely in their capacities as executors of Epstein’s estate, id. ¶ 18, and against Vickers, for her “integral role in operating Epstein’s operation of sex trafficking Mary and other girls,” id. ¶ 19. As its basis for personal jurisdiction over the executors, it alleges that “Epstein was subject to personal jurisdiction at the time of his death,” id. ¶ 22, “because the tortious acts giving rise to Plaintiff’s claims took place in New York State,” id. ¶ 23. The Complaint seeks, in addition to compensatory damages and attorneys’ fees and costs, “punitive damages in an amount to be determined at trial.” Id. p. 19.

B. The Executors’ Partial Motion to Dismiss

On January 21, 2020, the executor defendants filed a partial motion to dismiss, Dkt. 17, and a supporting memorandum of law, Dkt. 18 (“Def. Mem.”). It sought dismissal of the prayer for punitive damages on the ground that such damages cannot, as a matter of New York law, be sought against the personal representatives of an estate. On March 3, 2020, Doe filed a memorandum of law in opposition, Dkt. 28 (“Doe Opp’n”), and a supporting declaration by Daniel Mullkoff, Esq., Dkt. 29 (“Mullkoff Decl.”), which attached Epstein’s will. On March 20, 2020, the executor defendants filed a reply. Dkt. 33 (“Def. Reply”).

II. Applicable Legal Standards Under Rule 12(b)(6)

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will only have “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is properly dismissed where, as a matter of law, “the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558. When resolving a motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor. Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir. 2014). That tenet, however, “is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Pleadings that offer only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

III. Discussion

In moving to dismiss Doe’s prayer for punitive damages against them, the executor defendants argue that New York law applies to this personal injury action and categorically prohibits an award of punitive damages against the personal representatives of an estate. Specifically, they note, § 11-3.2(a)(1) of New York’s Estates, Powers and Trusts Law (“EPTL”) provides:

No cause of action for injury to person or property is lost because of the death of the person liable for the injury. For any injury, 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.

EPTL § 11-3.2(a)(1) (emphasis added).

Applying this statute, courts have held punitive damages unavailable in personal injury actions against executors or administrators of estates... [Detailed legal citations omitted for brevity in thought process, but included in full_text extraction above] ...

The justification commonly given for precluding punitive damage awards against estates is that punishment and deterrence—the recognized bases for imposing punitive damages on a tortfeasor—are not advanced by imposing punitive damages on his or her estate... “[P]unishment and deterrence are not accomplished by enabling recovery of punitive damages from the estate of deceased tortfeasors”...

Doe does not dispute that EPTL § 11-3.2(a)(1) precludes punitive damages in a personal injury action under New York law. Instead, Doe makes three arguments: (1) that defendants’ motion is premature... (2) that defendants’ motion is improperly styled as a motion to dismiss... and (3) that the law of the United States Virgin Islands (“USVI”), not New York law, applies, and permits punitive damages against an estate...

[Legal analysis dismissing arguments 1 and 2]...

Doe’s final argument is that USVI, not New York, law governs whether punitive damages are available. Because this Court sits in New York, it applies a New York choice of law analysis to that question... Under that analysis, punitive damages are considered to be conduct-regulating, and “the law of the jurisdiction where the tort occurred will generally apply.” ... Here, the torts alleged occurred entirely in New York. The personal injury claims which Doe’s Complaint brings arise from sexual assaults and related conduct that, as alleged, occurred exclusively within New York City—in and around Epstein’s Manhattan townhouse.

... Doe argues that, although New York may have the greater interest in resolving issues relating to compensatory damages, the USVI, where the executors are domiciled and where Epstein’s will is to be probated, has the greater interest as to punitive damages... Doe does not argue that the executor-defendants themselves merit punishment or are in need of deterrence. Instead, Doe argues that Epstein’s decision to alter his will shortly before his suicide to provide that it would be probated in the USVI was strategically motivated...

The Court is unpersuaded... Doe does not articulate any concrete interest that the USVI has in either vindicating the rights of a victim sexually abused in a Manhattan townhouse in 2004 and 2005 or, specially relevant to punitive damages, in assuring that the perpetrator of that abuse is adequately punished and deterred.

...[T]he choice of law debate here appears academic. 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... USVI courts have repeatedly cited the Restatement (Second) of Torts § 908 favorably... which bars an award of punitive damages against the estate of a decedent tortfeasor.

...Doe further argues that because the only heir listed in Epstein’s will—his brother Mark Epstein—allegedly knew or had constructive knowledge of Epstein’s pattern of sexual abuse, it is just to deny him recovery from the estate by exposing the estate to punitive damages awards in cases such as hers... But the decision by a government lawyer to attempt to obtain such damages in a high-profile case involving allegations of extreme conduct, or the alleged guilty knowledge of an heir in this case, do not speak to the question that the third Banks factor assays: which rule of law best durably serves the USVI’s interests.

CONCLUSION

For the reasons above, the Court grants the defendant-executors’ motion to dismiss the prayer for punitive damages against them. The Clerk of Court is respectfully directed to terminate the motion pending at docket 17.

SO ORDERED.

Paul A. Engelmayer
United States District Judge
Dated: April 28, 2020
New York, New York