Franco v. Diaz

GLASSER

Order accordingly.

Alice Fae Davis, Catholic Migration Services, Sunnyside, NY, for Plaintiff. Michael C. Barrows, Barrows & Tehrani PLLC, New York, NY, Rocco G. Avallone, Avallone & Bellistri, LLP, Lake Success, NY, for Defendants.

GLASSER, Senior District Judge.

Plaintiff, a citizen of Paraguay residing in New York, brings this action against Ada Diaz (“Ada”), Julio Diaz (“Julio”), and Maximina Vargas, alleging violations of the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. §§ 1589 et seq. (“TVPRA”), the Fair Labor Standards Act, 29 U.S.C. §§ 216 et seq. (“FLSA”), and various provisions of the New York Labor Law, as well as claims under New York law for intentional infliction of emotional distress (“IIED”), negligent infliction of emotional distress (“NIED”), and battery. Plaintiff claims that she was induced to come to New York to work for defendants as a domestic servant and nanny, forced to work long hours for little pay, and subjected to verbal and physical abuse as well as threats of deportation. In their answer, defendants assert various counterclaims under New York law. Currently before the Court are plaintiff's motion to dismiss the counterclaims and defendants' motion to dismiss certain counts of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, as well as defendants' motion to amend their answer. For the reasons that follow, plaintiff's motion to dismiss defendants' original counterclaims is GRANTED, defendants' motion to amend their answer to add a defamation counterclaim is GRANTED, and defendants' motion to dismiss is DENIED.

Defendants argue that all of plaintiff's claims under the TVPRA must be dismissed because plaintiff does not allege that she was subjected to any threat of force or serious harm. This argument is entirely meritless. The Complaint explicitly states that defendants threatened to have plaintiff deported if her work did not meet their standards, and it is well established that “[t]he threat of deportation alone may support a claim for forced labor.” E.g., Aguirre, 961 F.Supp.2d at 444 (collecting cases).

Defendants also claim that plaintiff was free to leave the Diaz home unaccompanied, and submit what they claim is photographic evidence in support of that assertion. See Dkt. No. 20 at 7 (citing Defs.' Ex. B (Dkt. No. 22)). In ruling on a motion to dismiss for failure to state a claim, a district court may consider only the factual allegations contained in the pleadings, documents attached to the pleadings or incorporated by reference, documents a plaintiff knew of and relied on in drafting the complaint, and matters of public record of which judicial notice may be taken. E.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir.2002); Wong v. CKX, Inc., 890 F.Supp.2d 411, 415 (S.D.N.Y.2012). The photographs are none of the above, and the Court therefore excludes them from consideration here.

In any event, it is of no consequence that plaintiff was sometimes left alone at defendants' house, that she could leave unaccompanied, or that she never attempted to leave and find different employment. The TVPRA does not require that plaintiffs be kept under literal lock and key. Rather, it was enacted as a rejection of case law that “limited the definition of involuntary servitude to ‘physical’ or ‘legal’ coercion,” and was intended to “reach cases in which persons are held in a condition of servitude through nonviolent coercion.” United States v. Dann, 652 F.3d 1160, 1170 (9th Cir.2011). Plaintiff sufficiently alleges that she was coerced into working by threats of deportation if her work was not satisfactory. Accordingly, she has properly stated a claim under 18 U.S.C. § 1589(a).

The TVPRA also provides for liability of any person who “knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of this chapter.” 18 U.S.C. § 1590(a). Plaintiff alleges that she was recruited by defendants to work in the United States, with their arranging for her visa, paying her expenses, and providing her with housing after her arrival. By combining these claims with the alleged violations of Section 1589(a) described above, plaintiff has stated a claim under Section 1590(a).

Finally, the TVPRA also provides for liability of any person who “knowingly destroys, conceals, removes, confiscates, or possesses any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person” in connection with a violation of the statute. 18 U.S.C. § 1592(a). Plaintiff alleges that Vargas took her passport under false pretenses shortly after her arrival, and that she believes Ada later came into possession of it. In connection with the purported violations of Section 1589(a) set forth in plaintiff's first cause of action, these allegations are more than sufficient to state claims under Section 1592(a).

Under New York law, IIED and NIED both require a plaintiff to allege extreme and outrageous conduct as well as a causal connection between that conduct and severe emotional distress. E.g., Alexiadis v. N.Y. Coll. of Health Professions, 891 F.Supp.2d 418, 436–37 (E.D.N.Y.2012). IIED additionally requires allegations of intent to cause severe emotional distress. Id. at 437. NIED usually requires that the emotional distress in question stem from physical injury, but a claim may also lie if a plaintiff suffers purely emotional harm caused by a defendant's breach of a duty owed directly to the plaintiff which either endangered her physical safety or caused her to fear for that safety. Id. at 436 (citing Lancellotti v. Howard, 155 A.D.2d 588, 547 N.Y.S.2d 654, 655 (1989)).

Defendants assert that plaintiff has failed to allege sufficiently extreme and outrageous conduct. In light of the foregoing discussion of plaintiff's TVPRA claims, their assertion is meritless to the point of frivolousness. Defendants attempt to buttress their unavailing argument by mischaracterizing the Complaint as merely alleging harassment in “the employment context” or claims “by one family member against another.” That characterization, if credited, would neuter the TVPRA, which is aimed precisely at allegations such as these. The Complaint alleges claims that are patently not ordinary workplace or familial disputes.

With respect to plaintiff's NIED claim, defendants, apparently conceding that they owed a duty to plaintiff, assert only that the Complaint lacks any allegation that plaintiff feared for her physical safety or that her physical safety was endangered. Given the allegations of the Complaint, it suffices to say that their accusations could only be made with tongue in cheek, and are patently meritless.

Under New York law, battery is defined as intentional wrongful physical contact with another person without consent. E.g., Green v. City of New York, 465 F.3d 65, 86 (2d Cir.2006); Charkhy v. Altman, 252 A.D.2d 413, 678 N.Y.S.2d 40, 41 (1998). Plaintiff's allegation that Ada intentionally shoved her on October 28, 2013 is a classic claim of battery. Defendants' assertions that Ada could not have committed battery because she was acting in loco parentis and her conduct was akin to disciplining plaintiff are meritless, if not frivolous.

With respect to Julio, plaintiff's alleged claim of battery is his attempt to rape her in April of 2012. Defendants' motion to dismiss this claim is based on New York's one-year statute of limitations for battery. See N.Y. C.P.L.R. § 215(3). Plaintiff argues that her claim is subject to equitable tolling and is therefore not time-barred. Under New York law, a plaintiff may invoke the doctrine of equitable tolling to defeat a statute of limitations defense “when [she] was induced by fraud, misrepresentations or deception to refrain from filing a timely action.” Doe v. Holy See (State of Vatican City), 17 A.D.3d 793, 793 N.Y.S.2d 565, 568 (2005) (internal quotations and citation omitted). “[W]hen plaintiffs raise an equitable tolling argument, a court must deny a motion to dismiss based on the statute of limitations unless all assertions of the complaint, as read with required liberality, would not permit the plaintiffs to prove that this statute was tolled.” In re S. African Apartheid Litig., 617 F.Supp.2d 228, 287 (S.D.N.Y.2009).

Plaintiff alleges that Julio said she would be deported if she ever reported the attempted rape. Additionally, she claims that she labored under a misrepresentation by defendants regarding her missing passport. At the motion to dismiss stage, these allegations are sufficient to defeat defendants' statute of limitations defense. See, e.g., Kiwanuka v. Bakilana, 844 F.Supp.2d 107, 118 (D.D.C.2012) (applying equitable tolling to claims brought by a foreign worker whose employers “confiscated her identity documents and passport, threatened her with deportation, and forced her to remain completely dependent upon them”); Deressa v. Gobena, No. 1:05CV1334, 2006 WL 335629, at *1, *3–5 (E.D.Va. Feb. 13, 2006) (applying equitable tolling in holding that threatening a foreign worker with deportation and generally preventing her from leaving her place of employment “constitute[d] affirmative acts designed to prevent [her] from ... taking steps to enforce her contractual and common law rights”). Accordingly, defendants' motion to dismiss is denied.

For the foregoing reasons, plaintiff's motion to dismiss defendants' original counterclaims is GRANTED, defendants' motion for leave to amend its answer to add a counterclaim for defamation is GRANTED, and defendants' motion to partially dismiss the Complaint is DENIED. Defendants shall file their proposed amended answer, without the IIED counterclaim that was dismissed in this Memorandum and Order, no later than September 26, 2014.

SO ORDERED. -------- Notes: