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Case 1:19-cv-10475-LGS-DCF Document 118 Filed 02/10/21 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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[REDACTED],
Plaintiff,
19 Civ. 10475 (LGS)
-against-
OPINION AND
ORDER
DARREN K. INDYKE, in his capacity as executor
of the Estate of Jeffrey Edward Epstein, et al.,
Defendants.
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LORNA G. SCHOFIELD, District Judge:

On January 21, 2021, Plaintiff [REDACTED] filed a motion to dismiss this action with
prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(2). In connection with her motion,
Plaintiff filed a proposed order of dismissal imposing certain conditions (the “Proposed Order”).
Defendant Ghislaine Maxwell opposed the motion. For the following reasons, subject to
Plaintiff’s consent, dismissal is granted pursuant to the terms of the Proposed Order modified as
described below.

I. BACKGROUND

On November 12, 2019, Plaintiff filed a Complaint against Ms. Maxwell and Defendants
Darren K. Indyke and Richard D. Kahn in their official capacities as appointed executors of the
Estate of Jeffrey E. Epstein (the “Estate”) (Indyke and Kahn together, the “Co-Executors”). The
Complaint alleges claims of battery, false imprisonment and intentional infliction of emotional
distress under New York law. These claims stem from and/or arise in connection with Mr.

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Epstein’s and Ms. Maxwell’s alleged sexual abuse of Plaintiff. Defendants did not file
counterclaims.

On June 2, 2020, the Superior Court of the United States Virgin Islands granted the Co-
Executors’ motion to establish the Epstein Victims’ Compensation Program, a voluntary
independent program designed to compensate and resolve the claims of victims of sexual abuse
by Jeffrey Epstein (the “Program”). On June 22, 2020, based on an understanding that Plaintiff
wished to participate in the Program and that participation could result in the resolution of
Plaintiff’s claims, Judge Freeman stayed this case. The case remains stayed.

On June 26, 2020, Plaintiff submitted a claim to the Program. Before submitting her
claim, Plaintiff was ensured that compensation offers and information submitted to the Program
would be confidential. Plaintiff’s participation in the Program resulted in her receipt and
acceptance of an offer of compensation on October 5, 2020. In exchange for the offer of
compensation, Plaintiff executed a release, releasing the Estate, Mr. Epstein and other related
entities and individuals, including Ms. Maxwell, from any and all claims (the “General
Release”). To receive her compensation, Plaintiff must dismiss with prejudice any existing
lawsuits against the Estate and related entities and individuals -- including this lawsuit.

To conclude her participation in the Program, Plaintiff now moves for Rule 41(a)(2)
dismissal of all claims with prejudice. In connection with her motion, Plaintiff filed the
Proposed Order, to which the Co-Executors do not object. The Proposed Order states that
dismissal is “with prejudice,” and that each party shall “bear its own attorneys’ fees and costs.”
It also states that “Plaintiff shall provide Ms. Maxwell with a copy of the General Release, with
the compensation amount redacted” and that “[t]he parties shall not dispute the authenticity of
this copy of the General Release in any future proceedings.” In addition, the Proposed Order

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includes language that preserves Defendants’ rights and legal positions with respect to
indemnity.

Ms. Maxwell objects to dismissal pursuant to the Proposed Order on the grounds that she
will be unduly prejudiced if (1) Plaintiff is not required to provide an unredacted copy of the
General Release, showing Plaintiff’s compensation, and (2) each party is required to bear its own
attorneys’ fees and costs. Ms. Maxwell accordingly requests that the Court impose the following
conditions on dismissal: (1) Plaintiff must provide a copy of the unredacted General Release and
(2) Ms. Maxwell is entitled to costs and may seek attorneys’ fees in another action and at another
time.

II. STANDARD

Rule 41(a)(2) states as relevant here, “Except as provided in Rule 41(a)(1) [which
describes voluntary dismissals made either before the defendant files a responsive pleading or on
consent], an action may be dismissed at the plaintiff’s request only by court order, on terms that
the court considers proper.” Fed. R. Civ. P. 41(a)(2). A district court may exercise its “sound
discretion” in deciding a Rule 41(a)(2) motion. Catanzano v. Wing, 277 F.3d 99, 109 (2d Cir.
2001); accord Stinson v. City Univ. of New York, No. 18 Civ. 5963, 2020 WL 2133368, at *2
(S.D.N.Y. May 4, 2020).

Although “[v]oluntary dismissal without prejudice is . . . not a matter of right” and is
subject to substantial scrutiny, Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990)
(emphasis added); accord Stone v. Fisher, No. 20 Civ. 1818, 2020 WL 2765107, at *2 (S.D.N.Y.
May 28, 2020), a motion for voluntary dismissal with prejudice is generally subject “to far less
scrutiny,” HOV Servs., Inc. v. ASG Techs. Grp., Inc., No. 18 Civ. 9780, 2021 WL 355670 at *2
(S.D.N.Y. Feb. 2, 2021) (collecting cases). On a motion for voluntary dismissal with prejudice,

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the essential inquiry is “whether the voluntary dismissal ‘will be unduly prejudicial to the
defendants.’” Nix v. Office of Comm’r of Baseball, No. 17 Civ. 1241, 2017 WL 2889503, at *2
(S.D.N.Y. July 6, 2017) (citing Lan v. Time Warner, Inc., No. 11 Civ. 2870, 2016 WL 6778180,
at *6 (S.D.N.Y. Oct. 18, 2016), report and recommendation adopted, 2016 WL 6779526
(S.D.N.Y. Nov. 15, 2016)). To avoid undue prejudice, courts have the authority to impose
conditions of dismissal, so long as plaintiff has an opportunity to withdraw her motion if she
“feels that the conditions are too burdensome.” Paysys Int’l, Inc. v. ATOS IT Servs. Ltd., 901
F.3d 105, 109 (2d Cir. 2018) (internal citation omitted).

III. DISCUSSION

Ms. Maxwell will not be unduly prejudiced by dismissal. In this case, all the claims
against Ms. Maxwell will be dismissed, she did not file any counterclaims and dismissal is with
prejudice so that the claims cannot be brought against her again. She has not shown any
prejudice from the dismissal or its consequences. Nevertheless, Ms. Maxwell seeks to impose
two conditions on dismissal. These conditions are unnecessary to prevent prejudice that would
otherwise result from the dismissal because she has shown no such prejudice. As explained
below, the Court rejects one condition, and subject to Plaintiff’s consent, would grant the other
requested condition.

First, Ms. Maxwell asks that the amount of Plaintiff’s compensation from the Estate be
disclosed to her as a condition of dismissal. She argues that she needs the information (1) “to
make public” that plaintiff wanted money and not justice and (2) to cross-examine Plaintiff in
Ms. Maxwell’s criminal trial. In effect, she is arguing that dismissal will deprive her of the
vehicle to obtain information she would use in other settings. This is not the type of prejudice
the rule was intended to prevent, and she cites no case to suggest that it is. The argument is

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flawed because she is entitled to information in this case only to defend against the claims in this
case. See Fed. R. Civ. P. 26(b)(1) (permitting discovery “relevant to any party’s claim or
defense”). If there are no claims in this case as a result of dismissal, she is not entitled to
information in this case to defend against them. If she wants information to use in the court of
public opinion she must get it elsewhere. Similarly, if she wants information to use in her
defense in the criminal case, then she should try to obtain the information using the procedures
available in that case.

Ms. Maxwell asks as a second condition to strike the language in the Proposed Order that
“each party [is] to bear its own attorneys’ fees and costs.” Subject to Plaintiff’s consent, the
Court would grant that application, not because the dismissal is otherwise prejudicial to
Defendant, but because adjudication of fees and costs is unnecessary to dismiss the case.

Ms. Maxwell states that she is not seeking attorneys’ fees from Plaintiff at this time in
this action but does not wish to be precluded from doing so in a different action. The issue of
fees, therefore, is not ripe, and the parties can litigate it when and if Ms. Maxwell raises it.

The issue of costs similarly does not need to be resolved in order to grant dismissal. Ms.
Maxwell apparently intends to seek costs in this case, but she has not yet done so and the parties
have not fully briefed the issue. A prevailing party, including one in Ms. Maxwell’s position, is
typically entitled to recover its costs. See Fed. R. Civ. P. 54(d)(1) (“Unless a federal statute, [the
federal] rules, or a court order provides otherwise, costs -- other than attorney’s fees -- should be
allowed to the prevailing party.”); see Carter v. Inc. Vill. of Ocean Beach, 759 F.3d 159, 165 (2d
Cir. 2014) (“a voluntary dismissal of an action with prejudice works [a material alteration of the
legal relationship of the parties], because it constitutes an adjudication on the merits for purposes
of res judicata . . .”) (internal citations and quotation marks omitted); accord K’oyitl’ots’ina, Ltd.

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v. Gottschalk, No. 19 Civ. 11309, 2020 WL 6690640, at *3 (S.D.N.Y. Nov. 12, 2020) (treating
defendant as the “prevailing party,” after a dismissal with prejudice and awarding costs).
However, “whether to award costs ultimately lies within the sound discretion of the district
court.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 377 (2013). It remains to be seen whether
Ms. Maxwell will move to recover her costs and in what amount, whether Plaintiff will oppose
the application, and if so, whether Plaintiff could overcome the presumption that Ms. Maxwell is
entitled to her costs.

Because the issues of attorneys’ fees and costs need not be resolved in order to dismiss
this action, the Court is prepared to enter the Proposed Order, modified by striking the language
“with each party to bear its own attorneys’ fees and costs.” Plaintiff shall file a letter no later
than February 12, 2021, stating whether she consents to this modification or wishes to withdraw
her motion for voluntary dismissal, in which case the Court will restore this matter to its active
calendar. See Paysys Int’l. Inc., 901 F.3d at 109 (2d Cir. 2018) (holding that the plaintiff may
accept the court’s conditions of dismissal or withdraw its dismissal motion and proceed with the
case).

IV. CONCLUSION

Plaintiff shall file a letter no later than February 12, 2021, stating whether she consents to
the Court’s entry of the Proposed Order modified by striking the language “with each party to
bear its own attorneys’ fees and costs,” or wishes to withdraw her motion for voluntary
dismissal. The Clerk of Court is respectfully directed to close the motion at Docket No. 97.

Dated: February 10, 2021
New York, New York
LORNA G. SCHOFIELD
UNITED STATES DISTRICT JUDGE

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