PAMELA K. CHEN, District Judge.
Plaintiff Ajay Saraswat ("Plaintiff") filed this action on August 10, 2015 (Dkt. 1) and filed an Amended Complaint on November 16, 2015 (Dkt. 11),
For the reasons stated below, the Court accepts, in their entirety, the portions of the R&R dealing with Plaintiff's State law causes of action and with jurisdictional issues, but rejects the portion dealing with Plaintiff's federal causes of action under the TVPA. The Court finds that Plaintiff has pleaded his TVPA claims sufficiently to survive the motion to dismiss phase, and the parties shall proceed to discovery thereon. The Court adopts the factual background set forth in Judge Bloom's R&R (see R&R at 1-4), and otherwise presumes the parties' familiarity with the facts.
Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to determine dispositive pretrial matters even without the parties' consent. See Fed. R. Civ. Proc. 72(b). District courts "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Courts "must determine de novo any part of the magistrate judge's disposition that has been properly objected to," see Fed. R. Civ. P. 72(b)(3), but where "no timely objection has been made, the district court need only be satisfied that there is no clear error on the face of the record," see Bailey v. Wells Fargo Bank, N.A., No. 15-CV-3249, 2016 U.S. Dist. LEXIS 86800, at *3 (E.D.N.Y. July 5, 2016). See also Johnson v. Goord, 487 F.Supp.2d 377, 379-80 (S.D.N.Y. 2007) (only clear error review where "no objections are filed, or where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition") (quotation marks omitted); Baptichon v. Nev. State Bank, 304 F.Supp.2d 451, 453 (E.D.N.Y. 2004) ("clear error" review of R&R where no objections made).
Plaintiff objects to the R&R only as to Judge Bloom's "analysis of [Plaintiff's] federal causes of action." (Dkt. 17 at ECF
Plaintiff alleges violations of 18 U.S.C. §§ 1589, 1592, 1593(a),
The TVPA makes it unlawful to "knowingly provide[] or obtain[] the labor or services of a person" using "threats of serious harm to that person," "the abuse or threatened abuse of law or legal process," or "any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person . . . would suffer serious harm . . . ." 18 U.S.C. § 1589(a). The TVPA defines "abuse or threatened abuse of law or legal process" as "the use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure" on the victim to take, or refrain from taking, some action. Id. § 1589(c)(1). "Serious harm" is defined as "any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm." Id. § 1589(c)(2).
In addition, the TVPA punishes those who "knowingly . . . confiscate[] or possess[] any actual or purported passport or other immigration document, . . . in the course of a violation of [18 U.S.C. § 1589]; [or] with intent to violate [that provision] . . . ." Id. § 1592(a). The TVPA also imposes liability on those who "knowingly benefit[], financially or by receiving anything of value, from participation in a venture which has engaged in any act in violation of [18 U.S.C. §1592]," if they did so "knowing or in reckless disregard of the fact that the venture ha[d] engaged in such violation." Id. § 1593A.
The TVPA extends liability to "[w]hoever attempts to violate" Section 1589, id. § 1594(a) (emphasis added), and to "[w]hoever conspires with another to violate" Sections 1589 and 1592, id. § 1594(b), and permits victims to "bring a civil action against" the violators and to "recover damages and reasonable attorneys fees," id. § 1595.
Relying on United States v. Kozminski, 487 U.S. 931 (1988), Judge Bloom concluded that both involuntary servitude (or forced labor) and peonage "require[] that the individual [plaintiff] be forced to perform labor," and because "[i]t is undisputed that plaintiff never provided labor for defendants"—and in fact "plaintiff alleges defendants committed fraud because he never was given work to perform for them"—Plaintiff's TVPA claims should be dismissed for failure to state a claim. (R&R at 24 (emphasis in original).) In a footnote, the R&R cites Black's Law Dictionary to define forced labor and involuntary servitude as "`[t]he condition of one forced to labor — for pay or not — for another by coercion or imprisonment.'" (Id. at 24 n.16 (alteration in original).) Judge Bloom notes that, while "Plaintiff alleges psychological force" being brought to bear upon him by Defendants, he "does not allege that he was forced to provide labor to defendants." (Id.)
Plaintiff objects to this recommendation, arguing that "he did in fact perform labor for the Defendants, although they gained no profit from same." (Dkt. 17 at ECF 1.) He contends that "labor" in the context of the TVPA should be interpreted more broadly than the R&R contemplates, as "an `expenditure of physical or mental effort especially when fatiguing, difficult, or compulsory,'" including the provision of services, "defined as `useful labor that does not produce a tangible commodity.'" (Id. (citing United States v. Marcus, 628 F.3d 36 (2d Cir. 2010)).) The labor that Plaintiff was coerced into performing for Defendants, Plaintiff argues, was searching for a job: "Defendants coerced Plaintiff into applying to job after job and forced him to submit countless applications and resumes in the hope that he would find an employer who would pay 30% of Plaintiff's earnings to Business Integra," a grueling task "so mentally fatiguing that Plaintiff became physically ill." (Id. at ECF 2. See also Dkt. 11 ¶ 26.) Plaintiff draws a "crude[] analog[y]" to the relationship between "a pimp and a prostitute," insofar as, he argues, Defendants bound Plaintiff to them, but then instead of "provid[ing] him with any income," they "forced him to seek work elsewhere in the hope that they would be able to collect a share of his outside earnings or a lump sum to release him from their service." (Dkt. 17 at ECF 2.)
In response to Plaintiff's objections, Defendants argue that Plaintiff never provided labor for Defendants, and therefore his federal causes of action fail to state a claim. Defendants cite a number of cases—the majority of which predate the passage of the TVPA—for the proposition that, under a "contextual approach," "taking as a whole the set of conditions existing in the imposition of requiring the Plaintiff to work," Plaintiff's allegations do not establish that he performed labor for Defendants. (Dkt. 18 at 1-2 (quotation marks omitted).) Defendants contend further that their alleged "coercion"—threats of deportation—are insufficient to sustain Plaintiff's TVPA claims, citing a 1964 Second Circuit decision. (Id. at 2-3 (citing Shackney, 333 F.2d 475).)
As an initial matter, both Judge Bloom's R&R and Defendants' response to Plaintiff's objections rely, in large part, on the Supreme Court's decision in Kozminski and other case law predating the passage of the TVPA to conclude that nothing in Plaintiff's allegations meets the definition of "labor" as that term is contemplated in the forced labor and peonage context. But the Kozminski decision, and specifically its overly restrictive interpretation of what constitutes forced labor, is in part what motivated the passage of the TVPA. See H.R. Rep. No. 106-939, at 3, 5 (Oct. 5, 2000) ("Purposes and findings" of TVPA included finding that Kozminski's "narrow[] interpret[ation]" of involuntary servitude resulted in an interpretation that "criminalize[d] only servitude that is brought about through use or threatened use of physical or legal coercion, and [] exclude[d] other conduct that can have the same purpose and effect," whereas "[i]nvoluntary servitude statutes are intended to reach cases in which persons are held in a condition of servitude through nonviolent coercion"). In effect, the TVPA rendered Kozminski obsolete and makes that decision wholly inapposite to Plaintiff's TVPA claims.
Indeed, "Section 1589 is intended to address the increasingly subtle methods of traffickers who place their victims in modern-day slavery, such as where traffickers threaten harm to third persons, restrain their victims without physical violence or injury, or threaten dire consequences by means other than overt violence," and to "provide federal prosecutors with the tools to combat severe forms of worker exploitation that do not rise to the level of involuntary servitude as defined in Kozminski." Id. at 101. See also Javier v. Beck, No. 13-CV-2926, 2014 U.S. Dist. LEXIS 95594, at *16 (S.D.N.Y. July 3, 2014) ("Congress passed the [TVPA] to correct what they viewed as the Supreme Court's mistaken holding in Kozminski, which limited the definition of involuntary servitude to physical or legal coercion.") (citing United States v. Dann, 652 F.3d 1160, 1170 (9th Cir. 2011)) (quotation marks omitted) (alteration omitted).
But most importantly here, as Plaintiff notes (Dkt. 17 at ECF 1), in the context of a Section 1589 claim, the Second Circuit has defined "labor" as "the `expenditure of physical or mental effort especially when fatiguing, difficult, or compulsory,'" and "service" as "`the performance of work commanded or paid for by another.'" Marcus, 628 F.3d at 44 n.10. These definitions certainly appear to encompass the kind of effort expended by Plaintiff here, i.e., "to find another job [in which] any potential employer [would have to] pay 30% of [Plaintiff's] earnings to [Business Integra]," as well as the coercion alleged here, i.e., "[Plaintiff's] H1B [visa] would remain under [Business Integra's] control." (See Dkt. 11 ¶ 15.) Certainly Plaintiff's allegations are sufficient to state a claim for attempted forced labor, which the TVPA also prohibits. See 18 U.S.C. § 1594(a).
The Court's conclusion is bolstered by a number of decisions issued in this Circuit since the passage of the TVPA. For example, in Javier, the district court rejected a motion to dismiss the plaintiff's TVPA claims where the plaintiff alleged that the defendants forced him to work in a variety of roles other than the one he had contracted to perform, for significantly less money than he had been promised, and where the defendants charged him thousands of dollars for H1B application fees, required him to sign a confession of judgment in the amount of $15,000 as a condition of employment, "frequently warned [the plaintiff] that if he left their employment for any reason, he would be forced to pay them $15,000," and "threatened to withdraw their [H1B] petition on his behalf if [the plaintiff] questioned their conduct or refused to work as assigned." Javier, 2016 U.S. Dist. LEXIS 95594, at *2-5. In denying the motion to dismiss, the court relied upon a 2011 Ninth Circuit decision which "held that the threat that a non-immigrant would owe $7,500 to her employer if she quit, leaving her without `money to leave or live,' constituted a threat of `serious harm.'" Id. at *16-17 (citing Dann, 652 F.3d 1160, 1171). The court found the plaintiff's allegations that the defendants threatened to enforce a confession of judgment twice that amount and to "withdraw [the plaintiff's] visa application if he failed to report for work during a leave of absence," "sufficient at [the motion to dismiss] stage to satisfy the TVPA's `serious harm['] requirement." Id. at *17. See also id. at *18 (plaintiff "sufficiently pled a claim under the TVPA" where he "allege[d] that Defendants promised him a job as a physical therapy rehab manager paying $35.53 per hour, then threatened to withdraw his visa application if he did not report to other jobs where he effectively earned $15 per hour").
The Court finds Javier particularly persuasive, given the striking similarity between the facts in Javier, including the type of coercion brought to bear on the plaintiff, and the facts alleged here. Plaintiff claims that Business Integra "requested that [Plaintiff] provide a check in the amount of $2000 as payment" for filing an H1B visa application for him (Dkt. 11 ¶ 13); that, rather than providing him with the promised employment as a mechanical engineer, Defendants "told [Plaintiff] that he needed to find another job but that any potential employer must pay 30% of [Plaintiff's] earnings to [Business Integra], and that [Plaintiff's] H1B would remain under [Business Integra's] control" (id. ¶ 15); that Defendants "threatened to revoke [Plaintiff's] visa (which would compromise [Plaintiff's] legal status in the United States) if he did not find outside employment immediately" (id. ¶ 18); and that Defendants refused to transfer Plaintiff's visa unless Plaintiff paid them $15,000, and threatened to "contact immigration authorities and [have Plaintiff] deported from this country" if Plaintiff complained to anyone about Defendants' conduct or refused to pay the $15,000 (id. ¶¶ 22-23).
Defendants' characterization of these allegations as merely "voluntary acts of looking for a job" (Dkt. 18 at 3) both ignores the TVPA's broad definition of "labor" and fails to acknowledge Plaintiff's allegations establishing coercive conduct of the type prohibited by the TVPA, as found in Javier.
The Court likewise finds persuasive the district court's decision in Guobadia v. Irowa. In that case, the court denied summary judgment on the plaintiff's TVPA claims where the plaintiff allegedly spent "most of her waking hours" performing domestic duties for the defendants' household without pay, was forced to provide her wages from two jobs directly to the defendants, and was struck by the defendants "if she indicated that she would deviate from [their] commands in any way." Guobadia, 103 F.Supp.3d 325, 330-31 (E.D.N.Y. 2015). The district court held that "[a] scheme, plan or pattern violates Section 1589 where it is intended to cause a person to believe that, if she did not perform such labor or services, she or another individual would suffer serious harm." Id. at 334. In considering what would suffice as such "serious harm," the court concluded that the plaintiff's alleged "repeated physical, verbal, and emotional abuse" at the hands of the defendants "could rise to the level of `serious harm' under Section 1589," and threats of such violence could rise to the level of threats of serious harm. Id. at 335.
The Guobadia court then considered defendants' "contention . . . that the Plaintiff [had] been able to come and go as she pleased from the home" and that "at no point did the Plaintiff file a report with the police or authorities," such that the defendants "were not engaging her in unlawful forced labor." Id. The court rejected this contention, concluding that, "even if this is true, the evidence must be considered under the totality of the circumstances," and that, "[i]n this regard, to the extent the Defendants may have warned the Plaintiff that she would be arrested and deported if she spoke to people outside the home, . . . `the threat of being forced to leave the United States can constitute serious harm to an immigrant within the meaning of § 1589.'" Id. at 335-36 (citing, inter alia, United States v. Rivera, No. 09-CR-619, 2012 U.S. Dist. LEXIS 85090 (E.D.N.Y. June 19, 2012)) (alterations omitted). This is precisely the threat Plaintiff alleges Defendants repeatedly applied to coerce Plaintiff into looking for employment that would financially benefit Defendants. (See Dkt. 11 ¶ 23.) Moreover, Plaintiff alleges that these threats were made when Defendants were "aware that [Plaintiff's] legal status in the United States had become reliant upon the validity of the H1B visa," since Plaintiff had given Defendants his immigration documents "to transfer his visa from Student status to H1B employment." (Id. ¶ 12.) Looking at the totality of the circumstances alleged by Plaintiff, the Court concludes that, at this stage of the proceedings, Plaintiff has pleaded his TVPA claims under Sections 1589, 1592, and 1594(a) sufficiently to withstand Defendants' motion to dismiss.
None of the cases cited by Defendants alters the Court's conclusion. As noted previously, the majority of cases cited by Defendants in their response to Plaintiff's objections to the R&R predate the passage of the TVPA and therefore are irrelevant to the Court's analysis. Only two decisions post-date the TVPA's enactment: Calicchio v. Sachem Central School District, No. 14-CV-5958, 2016 U.S. Dist. LEXIS 59873 (E.D.N.Y. May 5, 2016), and Zavala v. Wal-Mart Stores Inc., 691 F.3d 527 (3d Cir. 2012). (See Dkt. 18 at 2.) The Court does not find either decision persuasive.
In Calicchio, a student asserting, inter alia, a Thirteenth Amendment claim of involuntary servitude alleged that he "was forced to work under threat of expulsion from school and that he would be arrested by the FBI if he did not perform [this] work." Calicchio, 2016 U.S. Dist. LEXIS 59873, at *7.
The Court is also not persuaded by the Third Circuit's decision in Zavala. In that case, the illegal immigrant plaintiffs sued the defendant for, inter alia, violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), alleging, as a predicate act, involuntary servitude,
Zavala is of no relevance here. First, the Court is not bound by the decision in Zavala. Second, Zavala did not involve any TVPA provisions; rather, it involved only the pre-TVPA involuntary servitude statute, 18 U.S.C. § 1584, which arguably is still governed by Kozminski. Third, the Zavala court's reliance on Kozminski is completely inapposite here because Plaintiff's TVPA claims are governed by the Act's definitions and related case law regarding the elements of those claims.
For all of these reasons, the Court reverses the R&R's recommendation that Plaintiff's TVPA claims be dismissed, and instead denies Defendants' motion to dismiss those claims. Plaintiff shall proceed on his claims for forced labor, document confiscation, and attempted forced labor, pursuant to Sections 1589, 1592, and 1594(a), respectively.
Because Plaintiff has not objected to any other portion of the R&R — namely, those dealing with Plaintiff's State law claims and jurisdictional issues—the Court reviews them for clear error. Finding none, the Court adopts those portions of the R&R in their entirety.
For the foregoing reasons, Judge Bloom's R&R is accepted with respect to Plaintiff's State law claims and jurisdictional issues, but rejected with respect to Plaintiff's federal law claims under Sections 1589, 1592, and 1594(a) of the TVPA. 28 U.S.C. § 636(b)(1). Plaintiff shall be permitted to proceed with those claims, for both restitution under Section 1593(a) and damages under Section 1595, as to Defendants Business Integra and Parathasarathy, and the parties shall conduct discovery thereon under Judge Bloom's supervision.
