EFTA00796174.pdf

Cgagellitreir-ta14-3W ClaglikigHtnt3nilalcdt0 2/Nignatr-41 of 4 SHER TREMONTE LLP VIA ECF October 30, 2017 The Honorable John G. Kochi United States District Court Southern District of New York 500 Pearl Street New York, NY 10007 A codPEA-e—ce wiLL 56 iawi rveson, ezovE--40%. it ?Oil Re: Jane Doe 43 v. Epstein et aL, No. 17 Qv. 616 (.1OK) 4e s:oo/—. 50 AID Dear Judge Kochi: We represent non-party Iladdon, Morgan and Foreman, P.C. ("Haddon Morgan S O which represented Defendant Ghislane Maxwell ("Maxwell") in Giuffre v Maxwell, Case No. 15-cv-7433 (RWS) (S.D.N.Y.) (the "Giuffre Action'). We write to respectfully request an opportunity to oppose Plaintiffs motion for 'Viii? alternative service on Maxwell through Haddon Morgan, or to seek reconsideration of the Court's order granting that motion, to which Haddon Morgan was not provided notice or any opportunity to respond. Procedural Background As the Court knows, counsel for Plaintiff in this action were also counsel for another plaintiff in the Giuffre Action, filed in 2015. Iladdon Morgan represented Maxwell as a defendant in that case. Maxwell and the plaintiff in that case reached a settlement, and the claims against her were dismissed with prejudice on May 25, 2017, see So Ordered Joint Stipulation for Dismissal, Giuffre v Maxwell. Case No. 15 Civ. 7433 (RWS) (S.D.N.Y. May 25, 2017), ECF No. 919. This action before Your honor has been pending since January 26. 2017. See Complaint, Dkt. No. I. On May 11, 2017, Plaintiff filed a motion seeking an additional 90 days to serve Maxwell (Dkt. No. 34). which the Court granted on May 12, 2017 (Dkt. No. 36). On August 10, 2017, Plaintiff's lust day to serve Maxwell, Plaintiff filed a motion for alternative service pursuant to Federal Rule of Civil Procedure 4(e)(1) and New York Civil Practice Law and Rules ("CPLR") § 308(5) (Dkt. No. 55) (the "Alternative Service Motion"). The Court issued an order granting the Alternative Service Motion on September 29, 2017 (the "Order"). Thereafter, Plaintiff hand- delivered a copy of the Summons and Amended Complaint in this matter to Haddon Morgan's offices in Denver, Colorado on October 9, 2017. 90 freed Snot I 21O1m:or Ilan. anti It 10:04 www shortfini00010:00 I 00 Ill 2912600 I 40112 1014116 USDC SDNY DOCUMENT ELECTROAICALLY FILED Doc; DATE FILED: tfr 2 -/_/ EFTA00796174  Cégt.ijelillk-a-@gieL3WKIK DraMPM 7 iit'ifflOtilltia2/iijigi51€1P42 of 4 Hon. John G. Kochi October 30, 2017 Page 2 Haddon Morgan had not been served with the Alternative Service Motion when ongmally filed, and had no notice of it until after the Court entered the Order. Because the Order places Iladdon Morgan in the unusual position of being compelled to accept service beyond the scope of its engagement or the client's authorization, and because certain relevant information was omitted from the Alternative Service Motion, Haddon Morgan engaged my firm to submit this application for relief from the Order. Plaintiff's Factual Assertions Were Incomplete and Misleading Plaintiff made numerous factual assertions that Haddon Morgan would have challenged had it been served with a copy of the Alternative Service Motion when filed. First, Plaintiff's counsel neglected to inform the Court that Maxwell — described throughout the press as a "British Socialite" - owns a residence in London. Indeed, Maxwell's London home was the subject of motion practice in the Giuffre Action, in which the same counsel who represent Plaintiff here sought disclosure as to what they called "Maxwell's . . . home."' Maxwell's residence in London has also been disnissed in publicly available documents in yet another lawsuit? We respectfully submit that the existence of a known residence on which service had not been attempted would have been fatal to the Alternative Service Motion. Second. Plaintiffs counsel asserted "[iIt is clear" that Maxwell was purposefully and intentionally evading service," Alt. Serv. Mot. 1 2, even though Plaintiff admits not attempting any service that could have been evaded. Plaintiff's counsel only describes one "attempt" at service at a Manhattan address nine days before their extended deadline expired. Plaintiff and her counsel abandoned the attempt when they realized the business address, supposedly affiliated with Maxwell. turned out to be a UPS store. See Alt. Serv. Mot. 11 6, 7. Nothing in Plaintiffs submission, however, evidences that Maxwell was actually evading service, as there was no attempt at service to evade. Third, Plaintiff's counsel not only imagined that Maxwell was evading service, they baselessly attempted to link Haddon Morgan to such efforts. Plaintiffs counsel submitted that Maxwell "has instructed her counsel not to accept service, and has also instructed her counsel not to disclose her whereabouts in response to inquiries related to effectuating service in this case." Alt. Serv. Mot. 14. Plaintiff's counsel had no conceivable basis to make such assertions about communications between Haddon Morgan and Maxwell; certainly, Haddon Morgan never informed Plaintiff's counsel of 'See Plainhif Virginia Giuffre's Motion to Compel the Production of Documents Subject to Improper Objections at 22. Giuffre v Maxwell, No. 15 Civ. 7433 (RWS)(S 0.14 Y Fob. 26. 2016), ECF No. 404. 'See also Jane Doe I$ 3 and Jane Doe Ws Motion Pursuant to Rule 21 for joinder in Acton at 5, Jane Doe 01 and Jane Doe 02 v. United States. No. 9:08-cv-80736 (KAM) (S.D. Fla. Dec 30, 2014). ECF No. 279 (referencing -Glutlane Maxwell's apartment" in London) See also. e.g., Guy Adams dt Torn Leonard. Why ARE the Rich andPowerful So in Thrall to Ghtlsaine Maxwell'. The Daily Mail corn (Jan. 9. 2015. 8.44 PM). hrty9www.datlynsaiLco.tilitnewsfartiele-29041I5/Ghulame-Maxwelbs-link•sox4cimdal-court- papers-involvingtrince.Andrew-leffery-Emtrein-don4-ssopaaving-amazing-social-coonections html. EFTA00796175  camel-girt& 01 stt gezilglk< CglaCALThiltianilaIMG1102/14igenC43 of 4 Hon. John G. Kochi October 30, 2017 Page 3 any such instructions. Moreover, although still counsel of record for Maxwell in the Giuffre Action, and attending to post-termination matters (i.e., confidentiality issues), Haddon Morgan has no occasion to know Maxwell's current whereabouts. The Alternative Service Motion was Not Well Founded as a Matter of Law Plaintiff's Alternative Service Motion was based on Fed. It. Civ. P. 4(e) and CPLR § 308(5), neither of which supported alternative service in light of the facts noted above. Rule 4(eX1) provides for service on an individual by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed. R. Civ. P. 4(e)(1). In turn, CPLR § 308(5), the New York state law provision governing service of summons, provides for alternative service, but only upon a showing that "service is impracticable' under conventional means of service,' and even then, only lijn such manner as the court, upon motion without notice, directs." N.Y. C.P.L.R. § 308(5) (emphasis added); see also Bozza v. Love, No. 15-cv-3271 (LGS), 2015 WL 4039849. at *I (S.D.N.Y. July I. 2015). "Though the impracticability standard is not capable of easy definition, a plaintiff seeking to effect alternative service must make some showing that the other prescribed methods of service could not be made." Bozza, 2015 WL 4039849, at •1 (internal citations omitted); see also Markoff v. S. Nassau Cnity Hasp., 61 N.Y.2d 283, 287 n.2 (1984) (finding a "conclusory affidavit stating that service was impracticable ... was insufficient to justify the order of expedient service under CPLR 308 (subd 5)"). Preza v. Sever's Gourmet, 212 A.D.2d 765, 765 (2d Dep't 1995) (finding alternative service was improperly granted). In particular, courts have found the impracticability standard unsatisfied where the defendant could have been properly served in a foreign country. See, e.g., Yamamoto v. Yamamoto, 43 A.D.3d 372, 373 (1st Delft 2007) (where defendant was located in Japan, in "the absence of any evidence that service in that manner is 'impracticable,' the court properly denied plaintiffs request, pursuant to CPLR 308(5), for an order directing that service on defendant be effectuated by personal delivery of process upon his attorneys.").` Here, Plaintiff has failed to make the requisite showing of "impracticability" in order to justify a court-ordered alternate method of service. Plaintiff's counsel cites "Internet inquiries" without elaboration. Plaintiff's counsel further cites a single "attempt" at service — initiated only nine days before the expiration ofPlaintiffs deadline —— — — — —— — 'Specifically, substitute service is available only where it u impracticable to serve an individual under CPLR § 308(1), (2), or (4) —the provisions for personal service, leave-and-mad, and nail-and-mail See N.Y. CP L.R. § 308(5) 'Pursuant to FodR Ca P. 4(f), an individual nay be saved magnetise country "by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad ofJudimal and Extrajudicial Documents" (the "Hague Convention"). Fed. It. Civ. P at) The United Kiagdoe and the United Stases are both %mama to the Hague Convention EFTA00796176  Cateelilgreirlitifii6stio4< riA§MiEgOte9flthrriliaShio10210Agame-44 of 4 Hon. John G. Kochi October 30, 2017 Page 4 to serve Maxwell, and then abandoned. Plaintiff failed to inform the Court of Maxwell's residence in London. and has never purported to have attemptedseptic* there. In Mien, Plaintiff should not have asked the Court to enlist Maxwell's counsel as an ages of service, in liciforiora III& dilitikelfsirrstirtoreler Conclusion For the reasons set forth above, we respectfully request that the Court withdraw its Order, or permit Haddon Morgan an opportunity to oppose Plaintiff's Alternative Service Motion or to file a motion to reconsider. We further respectfully request that any deadlines to formally answer or respond to the Complaint be held in abeyance pending the Court's resolution of Haddon Morgan's objections to service. Respectfully submitted, /s/ Kies° S Peluso Kimo S. Pekin) cc: All counsel of record (via ECF) Haddon, Morgan & Foreman, P.C. 150 E 10th Avenue Denver, CO 80203 EFTA00796177