Filed: Dec. 01, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2363 CRISTINA FERNANDEZ CRUZ, Plaintiff - Appellant, v. NILDA J. MAYPA; MICHELLE BARBA, a/k/a Michelle Maypa; FERDINAND BARBA, Defendants – Appellees. - DAMAYAN MIGRANT WORKERS ASSOCIATION, INC.; FREEDOM NETWORK (USA); SENATOR MARCO RUBIO, Amici Supporting Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:13-cv-00862-CMH-IDD
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2363 CRISTINA FERNANDEZ CRUZ, Plaintiff - Appellant, v. NILDA J. MAYPA; MICHELLE BARBA, a/k/a Michelle Maypa; FERDINAND BARBA, Defendants – Appellees. - DAMAYAN MIGRANT WORKERS ASSOCIATION, INC.; FREEDOM NETWORK (USA); SENATOR MARCO RUBIO, Amici Supporting Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:13-cv-00862-CMH-IDD)..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2363
CRISTINA FERNANDEZ CRUZ,
Plaintiff - Appellant,
v.
NILDA J. MAYPA; MICHELLE BARBA, a/k/a Michelle Maypa;
FERDINAND BARBA,
Defendants – Appellees.
------------------------------
DAMAYAN MIGRANT WORKERS ASSOCIATION, INC.; FREEDOM NETWORK
(USA); SENATOR MARCO RUBIO,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:13-cv-00862-CMH-IDD)
Argued: September 17, 2014 Decided: December 1, 2014
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Gregory wrote the opinion, in which Judge Agee
and Judge Keenan joined.
ARGUED: Christopher Brett Leach, GIBSON, DUNN & CRUTCHER LLP,
Washington, D.C., for Appellant. Timothy Joseph Battle,
Alexandria, Virginia, for Appellees. ON BRIEF: Dana Sussman,
SAFE HORIZON, Brooklyn, New York; Joseph D. West,
W. Jeremy Robison, Marisa C. Maleck, Kathryn E. Hoover, GIBSON,
DUNN & CRUTCHER LLP, Washington, D.C., for Appellant.
Mark B. Helm, Amelia L.B. Sargent, Los Angeles, California,
Ellen M. Richmond, Nathan M. Rehn, MUNGER, TOLLES & OLSON LLP,
San Francisco, California, for Amici Damayan Migrant Workers
Association, Inc., and Freedom Network (USA). Traci Lovitt,
Boston, Massachusetts, Alison B. Marshall, Washington, D.C.,
Rachel S. Bloomekatz, JONES DAY, Columbus, Ohio, for Amicus
Senator Marco Rubio.
2
GREGORY, Circuit Judge:
Cristina Fernandez Cruz appeals the dismissal of her claims
against defendants-appellees Nilda J. Maypa, Michelle Barba
(“Mrs. Barba”), and Ferdinand Barba (“Mr. Barba”) under the
Victims of Trafficking and Violence Protection Act (“TVPA”), 18
U.S.C. §§ 1589, 1590, 1595 (2012), the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 206, 216 (2012), and Virginia contract
law. Cruz alleges that she was forced to work for the
defendants for wages well below the minimum from 2002 until her
escape in 2008. The district court dismissed all of her claims
as time-barred. We affirm the district court’s dismissal of
Cruz’s state law claims, but we reverse the dismissal of her
TVPA and FLSA claims and remand for further proceedings.
I.
Because we are reviewing a grant of a motion to dismiss, we
must take the following facts in the light most favorable to the
plaintiff. McCauley v. Home Loan Inv. Bank, F.S.B., 710 F.3d
551, 554 (4th Cir. 2013). Cruz is a citizen of the Philippines,
where she lived until 2002. She speaks Tagalog and Kapampangan
fluently, and speaks limited English. Cruz is the primary
provider for her young daughter and her elderly parents, all of
whom reside in the Philippines. In 2001, a friend told Cruz
about an opportunity to travel to the United States to work for
3
Maypa, who at the time was an employee of the World Bank. Cruz
submitted her resume, and Maypa hired her soon after. About a
month later, Maypa faxed Cruz an employment contract, which
provided that Cruz would be employed as a domestic employee at
Maypa’s residence for two years at a rate of $6.50 an hour. It
stated that Cruz would work between 35 and 40 hours per week,
have at least one full day off each week, accumulate two sick
days per year, have heavily subsidized medical insurance, and
receive full compensation for her travel to and from the
Philippines.
Cruz reviewed the contract with the help of friends and
neighbors who were more fluent in English, and she was excited
about the terms. But before Cruz could sign, Maypa informed her
over the phone that she would be paying Cruz only $250 a month
rather than the $6.50 per hour specified in the contract. Cruz
did not know that U.S. law requires a significantly higher
minimum wage. She signed the contract on January 17, 2002.
Maypa arranged for Cruz to obtain a visa and a passport, and on
March 17, 2002, Cruz left the Philippines for the first time and
flew to the United States.
Soon after arriving in Virginia, it became clear to Cruz
that Maypa had misrepresented her working and living conditions.
Cruz was required to work seven days a week for 17 to 18 hours
per day, and she was expected to remain on call at night. Cruz
4
was never allowed to take a day off in the six years she
remained under the defendants’ control, even when she was ill.
When Cruz first arrived there were eight people living in
Maypa’s house: Maypa, Maypa’s daughter Mrs. Barba, her husband
Mr. Barba, their four children, and Maypa’s adult son. Cruz was
expected to cook and do laundry for this entire family, and to
clean their four-bedroom, three-bathroom home. About a year
after Cruz’s arrival, the Barbas moved to a separate four-
bedroom, three-bathroom home. From then on Cruz lived with the
Barbas but continued to clean Maypa’s home once a week as well.
Throughout this time Cruz was expected to provide 24-hour care
for all four of the Barbas’ children. Cruz was also directed to
maintain the Maypa and Barba properties by mowing the lawns,
trimming trees, shoveling snow, cleaning the pool, and
performing other landscaping duties. For her constant labor,
Cruz initially was paid a mere $250 per month, or approximately
$8 per day. By the time of her escape six years later Cruz was
making $450 per month, which amounted to about $15 per day.
Maypa drafted and executed two contract extensions during Cruz’s
“employment,” each of which provided for higher wages and
benefits that Cruz never received. Furthermore, the defendants
failed to provide Cruz with basic medical and dental care. 1
1
For example, when Cruz had a tooth infection and asked to
(Continued)
5
The defendants used Cruz’s immigration status and
vulnerable situation to keep her in their employ. Within hours
of Cruz’s arrival at Maypa’s home, Maypa confiscated Cruz’s
passport. Maypa also promised that she would renew Cruz’s visa
so that Cruz could visit her daughter, but Maypa never followed
through on this promise. Maypa required Cruz to sign falsified
time sheets and endorse “paychecks” that Cruz never received.
She told Cruz that these documents were a “formality” to keep
Cruz “safe.” Maypa exploited Cruz’s lack of knowledge about
U.S. immigration laws, telling Cruz that she would be “hunted
down,” imprisoned, and deported if she tried to leave.
The defendants isolated Cruz from her family, friends, and
culture. Cruz was dependent on them to help her call home to
the Philippines, and they would not pay for Cruz’s calls. When
Cruz was able to call her family, the defendants monitored her
conversations. They never permitted Cruz to return to the
Philippines to visit her family, even when relatives died and
when her daughter and father suffered life-threatening health
events. The defendants also prohibited Cruz from leaving their
homes alone except to walk their aggressive dog. Cruz did not
know anyone in Virginia besides the defendants, and they lived
see a dentist, the defendants refused to take her and instead
gave her medicine to numb the pain; after Cruz escaped, she had
to have the tooth extracted.
6
in rural areas with no sidewalks and no access to public
transportation. Cruz was “effectively trapped in their homes.”
Compl. ¶ 68.
In late 2007, Cruz’s fear of being trapped with the
defendants for the rest of her life began to outweigh her fear
of the repercussions of escaping. She contacted a friend living
in the United States, who gave her the contact information for
someone who could help her escape. On January 17, 2008, Cruz
gathered all of the papers she could find related to her
employment and immigration status, ran out of the Barbas’ home,
and got into a waiting van.
Cruz’s ordeal has had prolonged adverse effects on her
mental, emotional, and physical health. She has experienced
depression and anxiety and has difficulty sleeping. Her stress
has led to high blood pressure and back pain, and she has
developed asthma, allergies, and gastroesophageal reflux since
being brought to the United States.
Cruz filed this lawsuit on July 16, 2013, in the United
States District Court for the Eastern District of Virginia,
seeking compensatory and punitive damages for the defendants’
violations of the TVPA, the FLSA, and state law prohibiting
breach of contract, fraudulent misrepresentation, and false
7
imprisonment. 2 The defendants moved to dismiss under Federal
Rule of Civil Procedure 12(b)(6), and the district court
dismissed all of Cruz’s claims as time-barred. On appeal, Cruz
argues that her TVPA claims should be subject to the ten-year
statute of limitations enacted in 2008; 3 that her FLSA claim
should be equitably tolled under the actual notice rule set
forth by this Court in Vance v. Whirlpool Corp., 716 F.2d 1010
(4th Cir. 1983); and that her breach of contract claims should
be equitably tolled because the defendants interfered with her
ability to file a lawsuit.
II.
We review de novo the district court’s grant of a motion to
dismiss. McCauley, 710 F.3d at 554. The defendants agree with
this standard with respect to some of Cruz’s claims, but contend
that we should review the district court’s rejection of Cruz’s
equitable tolling arguments only for abuse of discretion. While
that is typically the correct standard, see, e.g., Baldwin v.
City of Greensboro,
714 F.3d 828, 833 (4th Cir. 2013) (“We
2
Cruz does not appeal the dismissal of her claims for
fraudulent misrepresentation and false imprisonment.
3
Cruz argues in the alternative that her TVPA claims should
be equitably tolled until four years before her lawsuit, but we
need not reach that argument because we find that the ten-year
statute of limitations applies to any claims that were unexpired
at the time of enactment.
8
review a district court’s decisions on equitable tolling for
abuse of discretion.” (citing Rouse v. Lee, 339 F.3d 238, 247
n.6 (4th Cir. 2003) (en banc))); Chao v. Va. Dep’t of Transp.,
291 F.3d 276, 279-80 (4th Cir. 2002), this Court has indicated
that “to the extent a challenge to the denial of tolling ‘is not
to the existence of certain facts, but instead rests on whether
those facts demonstrate a failure to bring a timely claim,
resolution [of this challenge] . . . turns on questions of law
which are reviewed de novo,’” Smith v. Pennington,
352 F.3d 884,
892 (4th Cir. 2003) (alterations in original) (quoting Franks v.
Ross,
313 F.3d 184, 192 (4th Cir. 2002)). 4 Because the district
court rejected Cruz’s equitable tolling arguments in the context
of granting a motion to dismiss, the facts at issue were, in
essence, undisputed. See Trulock v. Freeh,
275 F.3d 391, 405
(4th Cir. 2001) (“Under the motion to dismiss standard, factual
allegations, once plead, must be accepted as true.”). The
district court denied equitable tolling as a matter of law, and
therefore we review all of the court’s determinations de novo.
4
In Baldwin, this Court reviewed a denial of equitable
tolling as a matter of law under the abuse of discretion
standard. 714 F.3d at 833 (reviewing grant of summary
judgment). This is contrary to Smith’s pronouncement that we
review the denial of tolling de novo “where the relevant facts
are undisputed and the district court denied equitable tolling
as a matter of
law.” 352 F.3d at 892. Baldwin does not
explicitly reject or even refer to Smith. Therefore, we follow
the rule in Smith, which is directly on point here.
9
III.
Cruz alleges that the defendants violated the TVPA by
knowingly obtaining her labor 1) by means of threats; 2) by
holding her in a position of involuntary servitude; and 3) by
confiscating her passport. See 18 U.S.C. §§ 1589, 1590. At the
time these alleged violations took place, the TVPA was governed
by a four-year statute of limitations. See Pub. L. No. 108-193,
§ 4(a)(4)(A), 117 Stat. 2875, 2878 (2003) (establishing a
private right of action but not a statute of limitations); 28
U.S.C. § 1658(a) (2012) (“Except as otherwise provided by law, a
civil action arising under an Act of Congress enacted after
[December 1, 1990] may not be commenced later than 4 years after
the cause of action accrues.”). In 2008, however, Congress
amended the TVPA to include a ten-year statute of limitations.
William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (“TVPRA”), Pub. L. No. 110-457,
§ 221(2)(B), 122 Stat. 5044, 5067 (codified at 18 U.S.C.
§ 1595(c)). Cruz argues that this ten-year limitations period
applies to her TVPA claims, while the defendants maintain that
such application would be impermissibly retroactive.
The framework for determining whether a statute applies
retrospectively to pre-enactment conduct is set forth in
Landgraf v. USI Film Products, 511 U.S. 244 (1994). The Supreme
Court in Landgraf recognized that “the presumption against
10
retroactive legislation is deeply rooted in our jurisprudence,”
511 U.S. at 265, but it also noted that “[a] statute does not
operate ‘retrospectively’ merely because it is applied in a case
arising from conduct antedating the statute’s enactment,”
id. at
269. Therefore, Landgraf requires a three-step analysis when a
case involves a statute enacted after the relevant conduct.
First, the court must determine “whether Congress has expressly
prescribed the statute’s proper reach.”
Id. at 280. If so, the
inquiry ends there.
Id. If not, the court must decide whether
the statute would operate retroactively, “i.e., whether it would
impair rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties with
respect to transactions already completed.”
Id. Finally, if
the statute does have a retroactive effect, it will not apply
“absent clear congressional intent favoring such a result.”
Id.
Because Congress has not expressly indicated the
amendment’s proper temporal scope, 5 we proceed to the second
5
The defendants argue that the first Landgraf step
precludes the ten-year limitations period’s application to
Cruz’s TVPA claims. They assert that the 2008 TVPRA expressly
provides an effective date of June 21, 2009 (180 days after
enactment), and that therefore Congress has prescribed the
amendment’s reach. But that effective date applies only to
Title IV of the Act, and therefore does not apply to the
limitations period set forth in Title II. Pub. L. No. 110-457,
§ 407. (“This title, and the amendments made by this title,
shall take effect 180 days after the date of the enactment of
this Act.”). Because no express effective date governs the
(Continued)
11
Landgraf step. In Baldwin, this Court applied the Landgraf
framework to a limitations period extension in the Veterans’
Benefit and Improvement Act (“VBIA”), enacted after the
plaintiff’s claims had expired under the old limitations period.
714 F.3d at 836. At the second Landgraf step, the Court found
that the new statute of limitations would have an impermissible
retroactive effect if applied to the plaintiff’s expired claims.
Id. at 836-37. The Court explained:
Baldwin’s claims expired . . . more than six months
before the VBIA was enacted . . . . Thus, applying
[the new limitations period] retroactively would
attach a new legal consequence to the expiration of
Baldwin’s claim; that is, Baldwin’s claims against the
City would be allowed to proceed rather than be
barred.
Id. at 836. This holding suggests a distinction between expired
claims and claims that were alive when the new limitations
period was enacted. Such a distinction makes sense for two
reasons.
First, as Baldwin implies, applying a new limitations
period to unexpired claims does not “attach[] new legal
consequences to events completed before its enactment.”
Landgraf, 511 U.S. at 270. As long as the claims were alive at
statute of limitations, we need not reach the issue of whether
such a date would serve as an explicit congressional
prescription of temporal reach, but it is worth noting that the
standard is “a demanding one.” See Gordon v. Pete’s Auto Serv.
of Denbigh, Inc.,
637 F.3d 454, 459 (4th Cir. 2011).
12
enactment, extending a statute of limitations does not “increase
a party’s liability for past conduct,” id. at 280, because the
party already faced liability under the shorter limitations
period. Such an extension does not introduce new legal
consequences, but rather merely prolongs the time during which
legal consequences can occur.
Second, in the criminal context, there is a consensus that
extending a limitations period before prosecution is time-barred
does not run afoul of the Ex Post Facto Clause of the
Constitution. See, e.g., United States v. Jeffries, 405 F.3d
682, 685 (8th Cir. 2005); United States v. Grimes,
142 F.3d
1342, 1351 (11th Cir. 1998) (“[A]ll of the circuits that have
addressed the issue . . . have uniformly held that extending a
limitations period before the prosecution is barred does not
violate the Ex Post Facto Clause.”); United States v. Brechtel,
997 F.2d 1108, 1113 (5th Cir. 1993); United States v.
Taliaferro,
979 F.2d 1399, 1402 (10th Cir. 1992). This is
because a defendant facing unexpired claims has never been “safe
from . . . pursuit,” and has always had incentive to preserve
exculpatory evidence. Stogner v. California,
539 U.S. 607, 611,
631 (2003). Landgraf and the Ex Post Facto Clause are informed
by the same retroactivity concerns. See
Landgraf, 511 U.S. at
266 (noting that “the antiretroactivity principle finds
expression in several provisions of our Constitution,” including
13
the Ex Post Facto Clause). Thus, it makes sense to apply these
considerations in the civil context.
We therefore hold that applying the TVPRA’s extended
limitations period to claims that were unexpired at the time of
its enactment does not give rise to an impermissible retroactive
effect under Landgraf. 6 As such, whether Cruz’s TVPA claims may
proceed depends on whether they were still alive under the old
four-year limitations period when Congress enacted the new
statute of limitations on December 23, 2008, more than four
years after Cruz first arrived in the United States.
Equitable tolling is appropriate in two circumstances:
first, when “the plaintiffs were prevented from asserting their
claims by some kind of wrongful conduct on the part of the
defendant,” and second, when “extraordinary circumstances beyond
plaintiffs’ control made it impossible to file the claims on
time.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)
(internal quotation marks omitted). Equitable tolling is a rare
remedy available only where the plaintiff has “exercise[d] due
diligence in preserving [her] legal rights.”
Chao, 291 F.3d at
6
Because the application of the ten-year limitations period
to unexpired TVPA claims does not raise a retroactivity problem,
we need not address the third Landsgraf step.
See 511 U.S. at
280 (“If the statute would operate retroactively, our
traditional presumption teaches that it does not govern absent
clear congressional intent favoring such a result.” (emphasis
added)).
14
283 (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96
(1990)). Here, Cruz has alleged that the defendants confiscated
her passport, isolated her from other people, monitored her
communications, and threatened that she would be imprisoned and
deported if she tried to escape. Taking these facts in the
light most favorable to Cruz, this virtual imprisonment
prevented her from seeking legal redress until at least the date
of her escape in January 2008. 7 See Deressa v. Gobena, No.
1:05CV1334,
2006 WL 335629, at *3-4 (E.D. Va. Feb. 13, 2006)
(holding that plaintiff’s FLSA and state law claims were tolled
while she was held as a “virtual prisoner” by defendants, who
threatened her with deportation and forbade her to leave their
home). Because Cruz has pled facts sufficient to support the
conclusion that her claims were unexpired under the old four-
year limitations period when the 2008 TVPRA went into effect,
the district court erred in dismissing Cruz’s TVPA claims as
time-barred. We remand these claims for discovery to determine
whether all of Cruz’s TVPA claims warrant equitable tolling
until December 23, 2004, four years before the TVPRA’s
enactment.
7
The district court did not explicitly address this
particular equitable tolling argument because it assumed that
Cruz’s claims accrued “no later than January 17, 2008,” the date
of her escape. Cruz v. Maypa, 981 F. Supp. 2d 485, 488 (E.D.
Va. 2013).
15
IV.
Cruz alleges that the defendants willfully violated the FLSA
by failing to pay her the minimum wage required by 29 U.S.C.
§ 206. 8 The district court correctly applied the statute of
limitations for willful violations, which is three years instead
of two. See 29 U.S.C. § 255(a). The court found, however, that
Cruz’s claim should not be equitably tolled because she “failed
to plead sufficient facts to show the extraordinary
circumstances required for the doctrine . . . to be applied.”
Cruz v. Maypa, 981 F. Supp. 2d 485, 489 (E.D. Va. 2013).
As discussed above, equitable tolling is available when 1)
“the plaintiffs were prevented from asserting their claims by
some kind of wrongful conduct on the part of the defendant,” or
2) “extraordinary circumstances beyond plaintiffs’ control made
it impossible to file the claims on time.” Harris, 209 F.3d at
330 (internal quotation marks omitted). Cruz asks us to
evaluate this rule in light of Vance v. Whirlpool Corp.,
716
F.2d 1010 (4th Cir. 1983), in which this Court found that the
district court properly held that the 180-day filing requirement
of the Age Discrimination in Employment Act (“ADEA”) was tolled
by reason of the plaintiff’s employer’s failure to post
statutory notice of workers’ rights under the Act.
Id. at 1013.
8
Maypa does not contest that she is an “employer” to which
the FLSA applies.
16
It makes good sense to extend our reasoning in Vance to the
FLSA. The notice requirements in the ADEA and the FLSA are
almost identical. Compare 29 C.F.R. § 1627.10 (requiring
employers to “post and keep posted in conspicuous places . . .
the notice pertaining to the applicability of the [ADEA]”), with
id. § 516.4 (requiring employers “post and keep posted a notice
explaining the [FLSA] . . . in conspicuous places”). The
purpose of these requirements is to ensure that those protected
under the Acts are aware of and able to assert their rights.
Although Vance tolled an administrative filing deadline rather
than a statute of limitations, the FLSA lacks an equivalent
administrative filing requirement; thus, the FLSA’s deadline to
sue is, like the ADEA’s administrative filing deadline, the
critical juncture at which a claimant’s rights are preserved or
lost. Neither the ADEA nor the FLSA inflicts statutory
penalties for failure to comply with the notice requirements.
See Cortez v. Medina’s Landscaping, Inc., No. 00 C 6320,
2002 WL
31175471, at *5 (N.D. Ill. Sept. 30, 2002) (extending an actual
notice tolling rule similar to Vance from the ADEA to the FLSA).
Therefore, absent a tolling rule, employers would have no
incentive to post notice since they could hide the fact of their
violations from employees until any relevant claims expired.
17
For all of these reasons, this Court’s analysis in Vance applies
with equal force to the notice requirement of the FLSA. 9
Under Vance, tolling based on lack of notice continues
until the claimant retains an attorney or obtains actual
knowledge of her rights. 716 F.2d at 1013. The current factual
record, which is limited to the amended complaint, does not
identify when Cruz first retained a lawyer or learned of her
rights under the FLSA. Therefore, the district court should
allow discovery on remand to determine in the first instance
whether Cruz’s FLSA claim was time-barred despite being
equitably tolled.
V.
Cruz asserts that Maypa breached the express terms of the
three employment contracts she executed with Cruz. Cruz’s
contract claims are governed by a five-year limitations period
under Virginia law. Va. Code § 8.01-246(2). The claims accrued
9
The defendants argue that notice would have been futile
because the poster provided by the Wage and Hour Division is not
available in Cruz’s native Tagalog. Therefore, “it would make
little sense to toll indefinitely the limitations period for
Ms. Cruz’s FLSA claim based on the Defendants’ failure to post
notice that Ms. Cruz would not have understood anyway.”
Appellees’ Br. 24-25. Besides being offensive, this argument
turns on a factual issue that must be construed in Cruz’s favor.
See McCauley, 710 F.3d at 554. Cruz has not alleged that she
speaks no English, only that her English is limited.
Furthermore, this argument would lead to the absurd result of
affording fewer protections to non-English speaking employees.
18
“when the breach[es] of contract occur[red].” Id. § 8.01-230.
The district court did not explicitly reject Cruz’s tolling
argument, but dismissed her contract claims as time-barred.
Cruz, 981 F. Supp. 2d at 489.
Under Virginia law, a statute of limitations is tolled when
the defendant interferes with the plaintiff’s ability to seek
legal redress:
When the filing of an action is obstructed by a
defendant’s . . . using any . . . direct or indirect
means to obstruct the filing of an action, then the
time that such obstruction has continued shall not be
counted as any part of the period within which the
action must be brought.
Va. Code § 8.01-229. The Virginia Supreme Court has clarified
that this provision applies beyond situations “when a defendant
acts to conceal the existence of a cause of action.” Newman v.
Walker, 618 S.E.2d 336, 338 (Va. 2005); c.f. Daniels v. Ga.-Pac.
Corp., No. 97-2670,
1998 WL 539474, at *4 (4th Cir. Aug. 25,
1998) (unpublished). For example, a claim may be tolled when a
defendant prevents service of process.
Newman, 618 S.E.2d at
338. When filing is obstructed through fraudulent concealment,
the claim will be tolled only if the fraud consisted of
affirmative acts of misrepresentation and involved “moral
turpitude.”
Id. at 340.
Even assuming Cruz’s breach of contract claims were tolled
at least until her escape, she does not allege that Maypa took
19
any action to deter her from filing suit after her escape from
the defendants. And Cruz cannot point to any authority in which
similar Virginia claims have been tolled beyond the termination
of forced employment. Cf. Kiwanuka v. Bakilana, 844 F. Supp. 2d
107, 119-20 (D.D.C. 2012) (tolling Virginia state law claims
under D.C. tolling doctrine until plaintiff was “free from the
defendants’ control,” before her employment ended); Deressa,
2006 WL 335629, at *4 (tolling Virginia state law claims under
Virginia statute until plaintiff’s escape). Cruz escaped on
January 17, 2008, and she filed this lawsuit more than five
years later on July 16, 2013. Therefore, the district court
correctly dismissed her breach of contract claims as time-
barred.
VI.
Although Cruz’s state law claims are time-barred, her TVPA
claims may be timely under the ten-year limitations period if
they were tolled until within four years of the TVPRA’s
enactment, and her FLSA claim may be timely if she received
actual notice of her rights within three years of filing this
suit. For the foregoing reasons, the judgment of the district
court is
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED.
20
