From:HODGE & FRANCOIS

From: HODGE & FRANCOIS 3407767720 07/05/2012 17:49 #073 P.001 HODGE & FRANCOIS 1340 Taarneberg St. Thomas, VI 00802 facsimile transmittal To: Darren K. Indyke From: Denise Francois Re: Epstein vs. Fancelli Urgent D3'Cr review 0 Please Fax: (646) 350-0378 14 as Date: 7/5/2012 Pages: I: Please reply U Please recycle Opposition of Defendant Fancelli Paneling, Inc. to Plaintiffs' Emergency Motion to Compel the Attendance of (Monsieur) Jean-Pierre Fancelli follows this cover sheet. Denise Francois Hodge & Francois 1340 Taarneberg St. Thomas, VI 00802 Telephone: (340) 774-6845 Telefax: (340) 776-8900 Email: [email protected] EFTA01147271 From: HODGE & FRANCOIS 07/05/2012 16:16 3407775498 MOORE DODSON RUSSELL 3407767720 07/05/2012 17:49 4073 P.002 PAGE 01/06 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS & ST. JOHN JEFFREY EPSTEIN, et al., Plaintiffs, v. FANCELLT PANELING, INC., and S.F. MOLYNEUX STUDIO, LTD., Defendants. NO. ST-10-CV-443 (CARROLL, J.) OPPOSITION OF DEFENDANT FANCELLI PANELING, INC., TO PLAINTIFFS' EMERGENCY MOTION TO COMPEL THE ATTENDANCE OF (MONSIEUR) JEAN-PIERRE FANCELLI AT MEDIATION COMES NOW Defendant, FANCELLI PANELING, INC., by and through its undersigned counsel, to state its Opposition to Plaintiffs' unseasonable Motion pursuant to Super Ct. R 40. In support of its Opposition, Defendant states the following facts and circumstances: Plaintiff filed for this relief Friday, June 29ih. The undersigned had been off-island June 27 through July 2, 2012, with Attorney Baker second seating this matter. Attorney Baker, with other attorneys from this office, attended a day-long CLE session Monday, July 2n0. Local and federal holidays consumed July 3-4. Mediation is scheduled for July 13th and there is no fair way, insufficient notice and no economically feasible way for the relief Plaintiff seeks at this late juncture. See Fed K CN. P. I; Super. Cs, R. 7. EFTA01147272 From: HODGE & FRANCOIS 3407767720 07/0512012 16:16 3407775498 07/05/2012 17:49 #073 P.003 MOi>7E DODSON FUSSELL 02/05 OPPOSITION OF DEFENDANT FANCELI,I PANELING, INC TO PLAINTIFFS' EMERGENCY MOTION TO COMPEL FANCELL1'S ATTENDANCE arstein, et ad v. Fanelli Paneling, et al. Page 2 I. Plaintiff Jeffrey Epstein is a resident of the U.S. Virgin Islands. Second Amended Complaint.11. Plaintiff choose this forum, resides here and, as a natural person, is fully obliged to personally attend mediation as scheduled. 2. Fancelli Paneling, Inc., is a corporation organized under the laws of the state of New York. Second Amended Complaint,' 2. See also Exhibit 4, Plain:Ws' Opposition to Motion to Dismiss. A corporation. as a statutory person, must designate the natural person(s) through which it functions. See also, Fed. It Civ. P. 30(b)(6). 3. Monsieur Jean-Peirre Fancelli resides in St. Ouen, France. The language he is most • 4. 5. comfortable using is French. Monsieur Fancelli previously requested the courtesy of appearing telephonically at mediation, but Plaintiffs' declined. As a corporation, Fantail' Paneling. Inc., is permitted to designate its representative for purposes of, inter alio, mediation and the only qualification is that the person designated has full authority to settle without further qualification. Super. Cr. It 40(O(2). For purposes of this procedure, the corporation has designated a representative that is familiar with all aspects of this dispute and the English language and he will appear will settlement authority. The corporate representative wilt be assisted at mediation by Michele Baker, Esquire, who is fluent in French. Plaintiffs' discourtesy notwithstanding, Mon. Fancelli may choose to be available by telephone during mediation to speak with her as necessary. The designated representative, although an attorney, is not practicing in this jurisdiction, nor has he been admitted pro hac vie! in this, or any Virgin Islands action. He appears solely as EFTA01147273 From: HODGE & FRANCOIS 3407767720 07105/2012 17:50 #073 P.004 07/05/2012 16:16 3407775498 MOORE DODSW RESELL PAGE 03/05 OPPOSITION OF DEPENDANT FANCELLI PANELING, INC TO PLAINTIFFS' EMERGENCY MOTION TO COMPEL FANCELLI'S ATTENDANCE Epstein. et at, v. Fence:II Ponelina, et al Page 3 a corporate representative, not in any legal capacity. A corporation, however, may only appear in actions of this nature through its attorney of record, the undersigned. 6. The Court's attention is drawn to 1 3 of Plaintiffs' Motion, attempting to use counsel's efforts at settlement as evidence, in contravention of Pa IL frit 408, and to which Defendant objects. With a reservation of all rights, however, and while it appears that the parties have been able to work out a suitable CorgidenfialityAgreement to permit Plaintiffs' to surrender (settlement) Agreements necessary for consideration end compliance with the Mediator's requirements in advance of mediation, Plaintiffs have not made suitable arrangements for the undersigned's request for an informed mediation to be conducted with visual inspection of the on-site work at issue for all counts pending before this Honorable Court. The Court is aware that this suit is based upon a questionable claim of the alleged beneficiary of a distinct and different contract and the impermissible tort arising there&otn. The "work" at issue is in place at Plaintiffs' St. Thomas property and must be reviewed by the Mediator and all parties to gauge whether Plaintiffs have been adequately compensated for the contractual work received, together with the additional work and funds they subsequently received. Additional "emergency" relief will be sought, failing universal recognition of the basic logic that we must all compare the one hand to the other! Under Fed. R. Civ. P. 26(o)(1)(A)(0, Defendant need only disclose persons Defendant may use to support its claims or defenses. Defendant had no obligation to disclose this representative. EFTA01147274 From: H0DGE & FRANCOIS 07/05/2012 16:16 3407775498 3407767720 07/05/2012 17:50 #073 P.005 MOORE DODSON RUSSELL PAGE 04/05 OPPOSITION OF DEFENDANT FANCELLI PANELING. INC. TO PLAINTIFFS' EMERGENCY MOTION TO COMPEL PANCELLPS ATTENDANCE Epstein, et al. P. Pance/li Paneling. et al Page 4 CONCLUSION It is respectfully submitted that it would question and undermine the integrity of mediation if one party could hand-pick and designate the corporate representative of its opposition on that occasion. WHEREFORE. Defendant respectfully requests this Honorable Court to: A. DENY Plaintiffs' Motion to Compel Fanceili's Personal Attendance at Mediation; 13. To award Defendant fees and costs in conjunction with its Opposition; and C. To award such other and further relief as the Court deems just and proper. Dated this 'th day o£July, 2012. Kespeettlilly submitted, Treston irrr V.I. B o. 10 MOORE DODSON & RUSSELL. Y.C. Attorneys for Defendant Fancelli Paneling, Inc. P.O. Box 310, E.G.S. (14A Norre Dade) St. Thomas, VI 00804-0310 PHONE: (340) 777-5490 FAX: (340) 777-5498 EMAIL: [email protected] EFTA01147275 From: HODGE & FRANCOIS 07/05/2012 16:15 3407775498 3407767720 07/0512012 17:50 #073 P.006 MOORE DODSON RUSSELL PAGE 05/05 OPPOSITION OF DEFENDANT FANCELLI PANELING, INC. 719 PLAINTIFFS' EMERGENCY MOTION TO COMPEL FANCELLPS ATTENDANCE Eps►ein, e► al. v. Fat:cern Fanelli:R. el al, Page 5 CWIFICATE OF SCR VICE I hereby certify that on this s th day of July, 2012, a copy of the foregoing was served by facsimile transmission and first class mail, postage prepaid, upon Denise Francois, Esquire, Hodge & Francois, #1340 Taarneberg, St. Thomas, V.I. 00802, and upon A. Jeffrey Weiss, Esquire, 6934 Vcssup Lane. St. Thomas, V.I. 00802-1001, EFTA01147276