Franco v. Diaz et al, No. 1:2014cv01909 - Document 30 (E.D.N.Y. 2014)
Court Description: MEMORANDUM AND ORDER granting 17 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 18 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, plaintiffs motion to dismiss defendants or iginal 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 intentional infliction of emotional distress counterclaim that was dismissed in this Memorandum and Order, no later than September 26, 2014. Ordered by Judge I. Leo Glasser on 9/12/2014. (Carey, Charles)
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Franco v. Diaz et al Doc. 30 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------x NILSA FRANCO, Plaintiff, MEMORANDUM AND ORDER - against - 14-CV-190 9 (ILG) (RER) ADA DIAZ, J ULIO DIAZ, and MAXIMINA VARGAS, Defendants. -------------------------------------------------------x GLASSER, Senior United States District J udge: Plaintiff, a citizen of Paraguay residing in New York, brings this action against Ada Diaz (“Ada”), J ulio Diaz (“J ulio”), and Maxim ina Vargas, alleging violations of the Trafficking Victim s 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 claim s under New York law for intentional infliction of em otional distress (“IIED”), negligent infliction of em otional distress (“NIED”), and battery. Plaintiff claim s that she was induced to come to New York to work for defendants as a dom estic 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 counterclaim s under New York law. Currently before the Court are plaintiff’s m otion to dism iss the counterclaim s and defendants’ m otion to dism iss certain counts of the com plaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, as well as defendants’ m otion to am end their 1 Dockets.Justia.com answer.1 For the reasons that follow, plaintiff’s m otion to dism iss defendants’ original counterclaim s is GRANTED, defendants’ m otion to am end their answer to add a defam ation counterclaim is GRANTED, and defendants’ m otion to dism iss is DENIED. BACKGROU N D Except where otherwise noted, the following facts are taken from Plaintiff’s com plaint, Dkt. No. 1. (the “Com plaint”), and are accepted as true for purposes of deciding defendants’ Rule 12 m otion. Vargas is plaintiff’s aunt. Ada is plaintiff’s cousin and is m arried to J ulio. In late 20 0 6 or early 20 0 7, Vargas contacted plaintiff’s parents about an opportunity for plaintiff to work in the United States as a dom estic worker and caretaker for the infant son of J ulio and Ada. Plaintiff would live with the Diaz fam ily and be paid a m onthly salary. Defendants paid all of the fees associated with obtaining a visa for plaintiff and her travel to the United States. Plaintiff entered the United States in April of 20 0 7 and began working for J ulio and Ada. Shortly after arriving, Vargas took plaintiff’s passport under the pretense of needing to show it to an im m igration attorney. Plaintiff asked Ada to return her passport, but Ada told her that the passport had never left plaintiff’s possession, and that she m ust have lost it. Ada and Vargas both told plaintiff that she could not obtain a new passport without presenting her old one at the consulate, and that attem pting to obtain a new passport without her old one would put her at risk of deportation. Ada and Vargas also told her they would call im m igration authorities and have plaintiff deported 1 “Generally, if a defendant wishes to interpose a 12(b) m otion, he must do so before filing an answer.” Zem browski v. Denckla, 630 F. Supp. 130 7, 130 9 n.1 (E.D.N.Y. 1986). Defendants in this action had already filed their answer by the time they brought their m otion to dism iss. “A m otion to dismiss for failure to state a claim . . . that is styled as arising under Rule 12(b) but is filed after the close of pleadings[] should be construed by the district court as a m otion for judgm ent on the pleadings under Rule 12(c).” Patel v. Contem porary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 20 0 1). As “[t]he standard for granting a Rule 12(c) m otion . . . is identical to that of a Rule 12(b)(6) m otion,” the Court will consider defendants’ m otion as one m ade under Rule 12(c) and apply the Rule 12(b)(6) standard. See id. 2 if her work did not m eet their standards. On one occasion, Ada discovered and confiscated a piece of paper on which plaintiff had written the phone num ber for the Departm ent of Labor. At the start of her em ploym ent, plaintiff worked approxim ately 10 to 11 hours a day for $ 40 0 per m onth. In Septem ber of 20 0 7, Ada had another child. Soon after the birth of that child, plaintiff began working approxim ately 14 hours a day, which continued for the duration of her em ploym ent. Plaintiff was required to m ake breakfast and dinner for the fam ily, as well as lunch for the children. In addition, plaintiff was responsible for doing the fam ily’s laundry, cleaning, and taking the children to and from school. J ulio and Ada frequently spent weekends out of town, leaving plaintiff alone to care for the children. From 20 0 9 to 20 12, plaintiff received a raise of $ 10 0 per m onth each J anuary, with her salary reaching $ 80 0 per m onth in 20 12. Plaintiff did not receive a raise in 20 13. Throughout the duration of her em ploym ent plaintiff was subjected to frequent verbal abuse from Ada and Vargas. In late 20 11, Ada had another child. In April of 20 12, Ada travelled to Paraguay with her two older children, leaving plaintiff in New York to care for the infant, who was then approxim ately five m onths old. During Ada’s absence, J ulio attem pted to rape plaintiff and told her that if she reported it, he would have her deported. In Septem ber of 20 13, plaintiff m et one of her neighbors at a local Laundrom at. He becam e concerned about plaintiff’s safety after being told of her situation. On October 27, 20 13, plaintiff told Ada that she intended to leave the house for the afternoon. Ada became irate and confiscated plaintiff’s key to the hom e. Ada then told plaintiff that she would not be paid at the end of the m onth because, earlier in the m onth, defendants had paid $ 1,0 0 0 toward plaintiff’s father’s funeral expenses. 3 Plaintiff left the house after this conversation and did not return until early the next m orning. Upon plaintiff’s return, Ada called her an ingrate and a prostitute and m ade other derogatory rem arks. Ada also shoved plaintiff during this encounter, and subsequently confiscated plaintiff’s cellular telephone. She called the neighbor and told him to stay away from plaintiff. Later that m orning, after Ada had left for work, plaintiff m et with the neighbor. He brought her to m eet with an attorney from Catholic Migration Services. Plaintiff asked the attorney to help her get a police escort to leave defendants’ house. She also asked the attorney for help with obtaining wages defendants owed her. That evening, with police assistance that the attorney was able to obtain, plaintiff left the Diaz hom e. In the m onths that followed, Vargas and Ada m ade threats against plaintiff to m em bers of her fam ily. In Novem ber of 20 13, Vargas traveled to Paraguay and told plaintiff’s m other that plaintiff “should be careful” if she ever returned to Paraguay. On Decem ber 15, 20 13, Ada contacted plaintiff’s sister via Facebook and told her that plaintiff’s “end [was] near.” Plaintiff filed the Com plaint in this action on March 25, 20 14. Dkt. No. 1. Defendants answered the Com plaint on May 12, 20 14 and asserted four counterclaim s. Dkt. No. 8. On J une 16, 20 14, plaintiff m oved to dism iss those counterclaim s. Dkt. No. 17. On J uly 9, 20 14, defendants filed their opposition to plaintiff’s m otion, sim ultaneously m oving to dism iss certain causes of action in the Com plaint and to am end their answer. Dkt. No. 18. In so m oving, defendants agreed to withdraw three of their four counterclaim s and sought to add an additional counterclaim . See Dkt. No. 20 at 13. On J uly 23, 20 14, plaintiff filed a reply in support of her m otion to dism iss defendants’ counterclaim s (Dkt. No. 24), an opposition to defendants’ m otion to dism iss 4 (Dkt. No. 25), and an opposition to defendants’ m otion to am end (Dkt. No. 26). On J uly 30 , 20 14, defendants’ filed replies in support of their m otion to dism iss and m otion to am end. Dkt. Nos. 28 & 29. LEGAL STAN D ARD Mo tio n s to D is m is s Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a com plaint to include “a short and plain statem ent of the claim showing that the pleader is entitled to relief.” To survive a m otion to dism iss, a pleading m ust contain “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7)). A claim has facial plausibility “when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Iqbal, 556 U.S. at 678. Although detailed factual allegations are not necessary, the pleading m ust include m ore than an “unadorned, the-defendant-unlawfully-harm ed-m e accusation;” m ere legal conclusions, “a form ulaic recitation of the elem ents of a cause of action,” or “naked assertions devoid of further factual enhancem ent” will not suffice. Id. (internal quotations and citations om itted). This plausibility standard “is not akin to a ‘probability requirem ent,’ but it asks for m ore than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twom bly, 550 U.S. at 556). Determ ining whether a com plaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and com m on sense. But where the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not ‘show[n]’—‘that the pleader is 5 entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Thus, on a m otion to dism iss for failure to state a claim , “the issue is not whether a plaintiff will ultim ately prevail but whether the claim ant is entitled to offer evidence to support the claim s.” York v. Ass’n of the Bar of the City of N.Y., 286 F.3d 122, 125 (2d Cir. 20 0 2) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Mo tio n to Am e n d Am endm ent of pleadings is governed by Rule 15 of the Federal Rules of Civil Procedure, which states in relevant part that a party m ay am end a pleading to which a response is required once as a m atter of course 21 days after service of either the responsive pleading or a m otion under Rule 12 (b), (c), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1)(B). Beyond that tim e, “a party m ay am end its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). D ISCU SSION I. Plain tiff’s Mo tio n to D is m is s D e fe n d an ts ’ Co u n te rclaim s In their initial answer, defendants asserted four New York state law counterclaim s: abuse of process, IIED, NIED, and prim a facie tort. In response to plaintiff’s m otion to dism iss all of the counterclaim s, defendants agreed to voluntarily withdraw their abuse of process, NIED, and prim a facie tort claim s. Plaintiff renewed her m otion to dism iss defendants’ rem aining counterclaim for IIED, arguing that such a claim cannot be prem ised on the filing of a crim inal or civil com plaint and that, in any event, defendants fail to allege facts sufficient to state it. Under New York law, IIED has four elem ents: “(1) extrem e and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe 6 em otional distress; (3) a causal connection between the conduct and injury; and (4) severe em otional distress.” Howell v. N.Y. Post Co., Inc., 612 N.E.2d 699, 70 2 (N.Y. 1993). To satisfy the “extrem e and outrageous” elem ent, the conduct m ust be “so outrageous in character, and so extrem e in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized com m unity.” Murphy v. Am . Hom e Prods. Corp., 448 N.E.2d 86, 90 (N.Y. 1983). In their initial answer, defendants based their IIED counterclaim on plaintiff “filing false crim inal and civil com plaints against” defendants and plaintiff’s “m alicious and deliberate m isuse and perversion of the civil and crim inal processes.” Dkt. No. 8 ¶¶ 66, 68. But it is well established that under New York law, the com m encem ent of litigation, whether civil or crim inal, cannot form the basis for an IIED claim . See Walentas v. J ohnes, 683 N.Y.S.2d 56, 58 (App. Div. 1999). Defendants’ proposed am ended answer now prem ises their IIED claim solely on plaintiff’s statem ents to the police alleging that J ulio and Ada com m itted crim es against her. See Dkt. No. 23, Ex. D (“Am ended Answer”) ¶ 71. Although New York law is unclear on this point, the weight of authority suggests that providing false inform ation to the police cannot on its own constitute “extrem e and outrageous conduct.” See, e.g., Rivers v. Towers, Perrin, Forster & Crosby Inc., No. 0 7-CV-5441, 20 0 9 WL 817852, at *8 (E.D.N.Y. Mar. 27, 20 0 9) (“Allegations of providing false inform ation to the police, however, do not suffice”); Kaye v. Trum p, 873 N.Y.S.2d 5, 6 (App. Div. 20 0 9) (holding that a com plaint failed to allege extrem e and outrageous conduct even where “defendants variously m ade rude rem arks to and about [plaintiff], com m enced two baseless lawsuits and filed a criminal com plaint against her, and frightened her and her 7 daughter by attem pting to instigate her arrest”); Villacorta v. Saks Inc., 932 N.Y.S.2d 764 (table), 20 11 WL 25350 58, at *7 (Sup. Ct. May 6, 20 11) (collecting cases). In any event, defendants’ IIED counterclaim m ust be dism issed for an additional reason. Defendants now seek to assert a defam ation counterclaim , and New York courts have repeatedly stated that an IIED claim should be dism issed when it falls “within the am bit” of another tort, such as defam ation. See, e.g., Hirschfeld v. Daily News, L.P., 70 3 N.Y.S.2d 123, 124 (App. Div. 20 0 0 ); Herlihy v. Metro. Museum of Art, 633 N.Y.S.2d 10 6, 114 (App. Div. 1995). Federal courts in this Circuit have consistently applied this principle at the m otion to dism iss stage. See, e.g., McNam ee v. Clem ens, 762 F. Supp. 2d 584, 60 8– 0 9 (E.D.N.Y. 20 11); Fordham v. Islip Union Free Sch. Dist., 662 F. Supp. 2d 261, 276 (E.D.N.Y. 20 0 9). Because precisely the sam e conduct and the sam e injury fall within the am bit of defendants’ proposed defam ation counterclaim , their IIED counterclaim in the Am ended Answer m ust be dism issed as duplicative. II. D e fe n d an ts ’ Mo tio n to Am e n d Having agreed to withdraw three of their counterclaim s, defendants seek leave to am end their answer to add a counterclaim for defam ation, which is prem ised on plaintiff’s statem ents to the police that J ulio attem pted to rape her and Ada assaulted her. Because defendants sought to am end their counterclaim s m ore than 21 days after plaintiff served her m otion to dism iss, leave of the Court was required and not obtained. See Fed. R. Civ. P. 15(a). Although leave to am end should be “freely given,” a court m ay deny leave “for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 20 0 (2d Cir. 20 0 7) (citing Fom an v. Davis, 371 U.S. 178, 182 (1962)). Plaintiff argues that defendants’ m otion to am end should be denied because their proposed defam ation 8 counterclaim is futile, asserted in bad faith, violative of the FLSA, and contrary to public policy. A. Fu tility An am endm ent is futile if the proposed am ended claim would not withstand a m otion to dism iss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Lucente v. IBM, 310 F.3d 243, 258 (2d Cir. 20 0 2). To state a claim for defam ation under New York law, defendants m ust allege (1) a false statem ent, (2) that was published to a third party without privilege or authorization, (3) which constituted fault as judged by, at a m inim um , a negligence standard, and (4) either caused a special harm or constituted defam ation per se. McNam ee, 762 F. Supp. 2d at 599– 60 0 ; see also Stepanov v. Dow J ones & Co., 987 N.Y.S.2d 37, 41– 42 (App. Div. 20 14). A defam atory statem ent addressed to the eye, such as a writing or a photograph, is libel. One addressed to the ear, such as a spoken word, is slander. Ava v. NYP Holdings, Inc., 885 N.Y.S.2d 247, 251 (App. Div. 20 0 9). The defam ation claim ed here is slander, based upon the spoken accusations of rape and assault m ade by the plaintiff to the police. Plaintiff claim s that defendants’ failure to plead special dam ages attributable to the slander renders the counterclaim futile. Her argum ent is without m erit. A slander is per se actionable, requiring neither pleading nor proof of special dam ages, if it (1) charges another with a serious crim e, (2) tends to injure another in his or her trade, (3) claim s that an individual has a loathsom e disease, or (4) im putes unchastity to a wom an. See, e.g., Zherka v. Am icone, 634 F.3d 642, 645 n.6 (2d Cir. 20 11); Liberm an v. Gelstein, 60 5 N.E.2d 344, 347 (N.Y. 1992). The accusations of rape and assault m ade by plaintiff charge J ulio and Ada with serious crim es, and therefore defendants need not 9 plead special dam ages. See, e.g., Weldy v. Piedm ont Airlines, Inc., 985 F.2d 57, 62 (2d Cir. 1993) (assault); Restatem ent (Second) of Torts § 571 cm t. g (1977) (rape). Plaintiff next argues that defendants have failed to sufficiently allege that her statem ents to the police were not privileged. Under New York law, reporting a crim e to the police is protected by a qualified privilege. See, e.g., Boyd v. Nationwide Mut. Ins. Co., 20 8 F.3d 40 6, 40 9– 10 (2d Cir. 20 0 0 ); Present v. Avon Prods., Inc., 687 N.Y.S.2d 330 , 334 (App. Div. 1999). This privilege is lost, however, when the report is m ade with “actual” m alice—that is, with a high degree of awareness of its probable falsity or while the speaker entertained serious doubts as to its truth. Konikoff v. Prudential Ins. Co. of Am ., 234 F.3d 92, 98-99 (2d Cir. 20 0 0 ). The burden of proof of privilege rests on the alleged defam er, while the burden of proving m alice rests on the defam ed. See Weldy, 985 F.2d at 62. Defendants’ Am ended Answer alleges that plaintiff m ade knowingly false statem ents to the police, which sufficiently pleads m alice. See Boyd, 20 8 F.3d at 410 (citing Harte-Hanks Com m c’ns, Inc. v. Connaughton, 491 U.S. 657, 667 (1989)). Plaintiff’s contention that m alice m ust be pleaded with greater factual specificity finds no support in either case law or the Federal Rules of Civil Procedure. See id.; Fed. R. Civ. P. 9(b) (“Malice, intent, knowledge, and other conditions of a person’s m ind m ay be alleged generally”). For all of these reasons, defendants’ proposed defam ation counterclaim is not futile. B. Bad Faith Plaintiff next argues that defendants’ proposed am endm ents are pleaded in bad faith. “While not m uch case law exists in this Circuit about what constitutes bad faith for the purpose of denying a m otion for leave to am end a pleading, ‘[a] finding that a 10 party is seeking leave to am end solely to gain a tactical advantage . . . supports a finding that such an am endm ent is m ade in bad faith.’” Youngbloods v. BMG Music, No. 0 7 Civ. 2394, 20 11 WL 43510 , at *9 (S.D.N.Y. J an. 6, 20 11) (citation om itted). Aside from sim ply asserting it, plaintiff offers no explanation for what “tactical advantage” defendants would gain by am ending their answer now, and her argum ent fails accordingly. Plaintiff also contends that an am endm ent is in bad faith if offered in response to a m otion to dism iss that is likely to prove successful, or when the am endm ent advances a new legal theory in response to a dispositive m otion despite the pleader being aware of the facts underpinning that theory when it filed its initial pleading. While such am endm ents sought in response to sum m ary judgm ent m otions m ight be disfavored, see Lee v. Regal Cruises, Ltd., 916 F. Supp. 30 0 , 30 4 (S.D.N.Y. 1996), the Federal Rules of Civil Procedure encourage them in response to m otions to dism iss. Fed. R. Civ. P. 15(a)(1)(B) (providing for am endm ent as a m atter of course following a 12(b) m otion); id., 20 0 9 Advisory Com m ittee Note (“A responsive am endm ent m ay avoid the need to decide the m otion or reduce the num ber of issues to be decided, and will expedite determ ination of issues that otherwise m ight be raised seriatim ”). Given the foregoing, the proposed am endm ents were not pleaded in bad faith. C. FLSA & Pu blic Po licy Finally, plaintiff asserts that defendants should not be allowed to plead their defam ation counterclaim because it was m ade in retaliation to her com plaint (in violation of the FLSA) and, if allowed, would discourage others from pursuing such claim s. Plaintiff cites no case law or statutory authority for these propositions, and the 11 Court can find none. Defendants’ defam ation counterclaim is neither futile nor subm itted in bad faith, and leave to am end is granted. III. D e fe n d an ts ’ Mo tio n to D is m is s Ce rtain Claim s In addition to opposing plaintiff’s m otion to dism iss their counterclaim s, defendants have m oved to dism iss plaintiff’s claim s under the TVPRA, her claim s for IIED and NIED, and her battery claim s, alleging that each fails to state a claim upon which relief m ay be granted. A. TVPRA Defendants challenge the first, second and third causes of action, which arise under separate provisions of the TVPRA. None of their argum ents are availing. 1. 18 U .S.C. § 158 9 ( a) The TVPRA creates a private right of action for victim s of trafficking, and provides for civil liability of any person who provides or obtains the labor or services of a person . . . (1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person; (2) by m eans of serious harm or threats of serious harm to that person or another person; (3) by m eans of the abuse or threatened abuse of law or legal process; or (4) by m eans of any schem e, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint. 18 U.S.C. § 1589(a). For purposes of a TVPRA claim , “‘[s]erious harm ’ includes threats of any consequences, whether physical or non-physical, that are sufficient under all of the surrounding circum stances to com pel or coerce a reasonable person in the sam e situation to provide or to continue providing labor or services.” Aguirre v. Best Care Agency, Inc., 961 F. Supp. 2d 427, 443 (E.D.N.Y. 20 13) (citation om itted). “‘Abuse of the law or legal process’ is the use of threats of legal action, whether adm inistrative, civil, or 12 crim inal, in any m anner or for any purpose for which the law was not designed in order to coerce som eone into working against that person’s will.” Id. at 444 (citation om itted). Defendants argue that all of plaintiff’s claim s under the TVPRA m ust be dism issed because plaintiff does not allege that she was subjected to any threat of force or serious harm . This argum ent is entirely m eritless. The Com plaint explicitly states that defendants threatened to have plaintiff deported if her work did not m eet their standards, and it is well established that “[t]he threat of deportation alone m ay 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 hom e unaccom panied, and subm it 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 m otion to dism iss for failure to state a claim , a district court m ay consider only the factual allegations contained in the pleadings, docum ents attached to the pleadings or incorporated by reference, docum ents a plaintiff knew of and relied on in drafting the com plaint, and m atters of public record of which judicial notice m ay be taken. E.g., Cham bers v. Tim e Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 20 0 2); Wong v. CKX, Inc., 890 F. Supp. 2d 411, 415 (S.D.N.Y. 20 12). 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 som etim es left alone at defendants’ house, that she could leave unaccom panied, or that she never attem pted to leave and find different em ploym ent. 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 “lim ited 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 13 nonviolent coercion.” United States v. Dann, 652 F.3d 1160 , 1170 (9th Cir. 20 11). 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). 2. 18 U .S.C. § 159 0 ( a) The TVPRA also provides for liability of any person who “knowingly recruits, harbors, transports, provides, or obtains by any m eans, 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 com bining these claim s with the alleged violations of Section 1589(a) described above, plaintiff has stated a claim under Section 1590 (a). 3. 18 U .S.C. § 159 2 ( a) Finally, the TVPRA also provides for liability of any person who “knowingly destroys, conceals, rem oves, confiscates, or possesses any actual or purported passport or other im m igration docum ent, or any other actual or purported governm ent identification docum ent, 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 cam e 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 m ore than sufficient to state claim s under Section 1592(a). 14 B. In flictio n o f Em o tio n al D is tre s s Under New York law, IIED and NIED both require a plaintiff to allege extrem e and outrageous conduct as well as a causal connection between that conduct and severe em otional distress. E.g., Alexiadis v. N.Y. Coll. of Health Professions, 891 F. Supp. 2d 418, 436-37 (E.D.N.Y. 20 12). IIED additionally requires allegations of intent to cause severe em otional distress. Id. at 437. NIED usually requires that the em otional distress in question stem from physical injury, but a claim m ay also lie if a plaintiff suffers purely em otional 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, 547 N.Y.S.2d 654, 655 (App. Div. 1989)). Defendants assert that plaintiff has failed to allege sufficiently extrem e and outrageous conduct. In light of the foregoing discussion of plaintiff’s TVPRA claim s, their assertion is m eritless to the point of frivolousness. Defendants attem pt to buttress their unavailing argument by m ischaracterizing the Com plaint as m erely alleging harassm ent in “the em ploym ent context” or claim s “by one fam ily m em ber against another.” That characterization, if credited, would neuter the TVPRA, which is aim ed precisely at allegations such as these. The Com plaint alleges claim s that are patently not ordinary workplace or fam ilial disputes. With respect to plaintiff’s NIED claim , defendants, apparently conceding that they owed a duty to plaintiff, assert only that the Com plaint lacks any allegation that plaintiff feared for her physical safety or that her physical safety was endangered. Given the allegations of the Com plaint, it suffices to say that their accusations could only be m ade with tongue in cheek, and are patently m eritless. 15 C. Batte ry 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. 20 0 6); Charkhy v. Altm an, 678 N.Y.S.2d 40 , 41 (App. Div. 1998). Plaintiff’s allegation that Ada intentionally shoved her on October 28, 20 13 is a classic claim of battery. Defendants’ assertions that Ada could not have com m itted battery because she was acting in loco parentis and her conduct was akin to disciplining plaintiff are m eritless, if not frivolous. With respect to J ulio, plaintiff’s alleged claim of battery is his attem pt to rape her in April of 20 12. Defendants’ m otion to dism iss this claim is based on New York’s oneyear statute of lim itations 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 tim e-barred. Under New York law, a plaintiff m ay invoke the doctrine of equitable tolling to defeat a statute of lim itations defense “when [she] was induced by fraud, m isrepresentations or deception to refrain from filing a tim ely action.” Doe v. Holy See (State of Vatican City), 793 N.Y.S.2d 565, 568 (App. Div. 20 0 5) (internal quotations and citation om itted). “[W]hen plaintiffs raise an equitable tolling argum ent, a court m ust deny a m otion to dism iss based on the statute of lim itations unless all assertions of the com plaint, as read with required liberality, would not perm it 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. 20 0 9). Plaintiff alleges that J ulio said she would be deported if she ever reported the attem pted rape. Additionally, she claim s that she labored under a m isrepresentation by defendants regarding her m issing passport. At the m otion to dism iss stage, these allegations are sufficient to defeat defendants’ statute of lim itations defense. See, e.g., 16 Kiwanuka v. Bakilana, 844 F. Supp. 2d 10 7, 118 (D.D.C. 20 12) (applying equitable tolling to claim s brought by a foreign worker whose em ployers “confiscated her identity docum ents and passport, threatened her with deportation, and forced her to rem ain com pletely dependent upon them ”); Deressa v. Gobena, No. 1:0 5CV1334, 20 0 6 WL 335629, at *1, 3– 5 (E.D. Va. Feb. 13, 20 0 6) (applying equitable tolling in holding that threatening a foreign worker with deportation and generally preventing her from leaving her place of em ploym ent “constitute[d] affirm ative acts designed to prevent [her] from . . . taking steps to enforce her contractual and com m on law rights”). Accordingly, defendants’ m otion to dism iss is denied. CON CLU SION For the foregoing reasons, plaintiff’s m otion to dism iss defendants’ original counterclaim s is GRANTED, defendants’ m otion for leave to am end its answer to add a counterclaim for defam ation is GRANTED, and defendants’ m otion to partially dism iss the Com plaint is DENIED. Defendants shall file their proposed am ended answer, without the IIED counterclaim that was dism issed in this Mem orandum and Order, no later than Septem ber 26, 20 14. SO ORDERED. Dated: Brooklyn, New York Septem ber 12, 20 14 / s/ I. Leo Glasser Senior United States District J udge 17
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