622 F.3d 123 (2nd Cir. 2010), 09-2525-cv (L), Swarna v. Al-Awadi

Docket Nº:09-2525-cv (L), 09-3615-cv (XAP).
Citation:622 F.3d 123
Opinion Judge:MINER, Circuit Judge:
Party Name:Vishranthamma SWARNA, Plaintiff-Appellee-Cross-Appellant, v. Badar AL-AWADI, Halal Muhammad Al-Shaitan, Defendants-Appellants, State of Kuwait, Defendant-Cross-Appellee.
Attorney:Andrew J. Fields, Main Street Legal Services, Inc., Flushing, NY; David A. Kotler, Dechert LLP, Princeton, NJ, Robert W. Topp, Dechert LLP, New York, NY, Amy L. Rudd, Dechert LLP, Austin, TX, for plaintiff-appellee-cross appellant Vishranthamma Swarna. Neil H. Koslowe, Thomas B. Wilner, Justin L....
Judge Panel:Before: MINER, CABRANES, and WESLEY, Circuit Judges.
Case Date:September 24, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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622 F.3d 123 (2nd Cir. 2010)

Vishranthamma SWARNA, Plaintiff-Appellee-Cross-Appellant,


Badar AL-AWADI, Halal Muhammad Al-Shaitan, Defendants-Appellants,

State of Kuwait, Defendant-Cross-Appellee.

Nos. 09-2525-cv (L), 09-3615-cv (XAP).

United States Court of Appeals, Second Circuit.

September 24, 2010

Argued: April 20, 2010.

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Andrew J. Fields, Main Street Legal Services, Inc., Flushing, NY; David A. Kotler, Dechert LLP, Princeton, NJ, Robert W. Topp, Dechert LLP, New York, NY, Amy L. Rudd, Dechert LLP, Austin, TX, for plaintiff-appellee-cross appellant Vishranthamma Swarna.

Neil H. Koslowe, Thomas B. Wilner, Justin L. Harrison, and Amanda R. Kosonen, Shearman & Sterling LLP, Washington, D.C., for defendants-appellants Badar Al-Awadi, Halal Muhammad Al-Shaitan, and the State of Kuwait.

Araceli Martinez-Olguin and Lenora M. Lapidus, American Civil Liberties Union Foundation Women's Rights Project, New York, NY; Ivy O. Suriyopas, Asian American Legal Defense and Education Fund, New York, NY, for amici curiae American Civil Liberties Union Foundation Women's Rights Project; Asian American Legal Defense and Education Fund; Andolan; Break the Chain Campaign; CASA de Maryland; DAMAYAN Migrant Workers Association; Domestic Workers United; Freedom Network; Klasko, Rulon, Stock & Seltzer, LLP; Legal Momentum; National Domestic Workers Alliance; New York Anti-Trafficking Network; and Safe Horizon.

Emily E. Daughtry and Sarah S. Normand, Assistant United States Attorneys (Preet Bharara, U.S. Attorney for the Southern District of New York); Douglas N. Letter and Robert M. Loeb, Appellate Staff, Civil Division, U.S. Department of Justice (Tony West, Assistant Attorney General, Civil Division, U.S. Department of Justice); Susan R. Benda, Attorney Advisor, U.S. Department of State (Harold Hongju Koh, Legal Adviser, U.S. Department of State), New York, NY, for amicus curiae United States of America.

Before: MINER, CABRANES, and WESLEY, Circuit Judges.

MINER, Circuit Judge:

Defendants-appellants Badar Al-Awadi (" Al-Awadi" ) and his wife Halal Muhammad Al-Shaitan (" Al-Shaitan," or, together with Al-Awadi, the " individual defendants" ) appeal from interlocutory orders entered on March 20, 2009, and May 29, 2009, and plaintiff-appellee-cross-appellant Vishranthamma Swarna (" Swarna" ) cross-appeals from a final judgment entered on July 24, 2009, pursuant to Federal Rule of Civil Procedure 54(b), in the United States District Court for the Southern District of New York (Castel, J. ). The District Court granted Swarna's motion for default judgment against the individual defendants for claims brought pursuant to the Alien Tort Claims Act, 28 U.S.C. § 1350, alleging trafficking, involuntary servitude, forced labor, assault, and sexual abuse (the " ATCA claims" ), and for claims brought pursuant to New York State law, alleging

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fraud, unjust enrichment, breach of contract, and failure to pay legally required wages (the " state law claims" ). The District Court determined that the individual defendants' default was willful, that their defense of diplomatic immunity under the Vienna Convention on Diplomatic Relations [hereinafter " Vienna Convention" ], Apr. 18, 1961, 23 U.S. T. 3227, T.I.A.S. No. 7502 (entered into force in U.S. Dec. 13, 1972), was without merit, and that Swarna would suffer considerable prejudice if a default judgment were denied. The District Court dismissed Swarna's ATCA and state law claims against defendant-cross-appellee the State of Kuwait (" Kuwait" ) on sovereign-immunity grounds, pursuant to the Foreign Sovereign Immunities Act of 1976 (" FSIA" ), Pub.L. No. 94-583, 90 Stat. 2891 (Oct. 21, 1976) (codified at 28 U.S.C. §§ 1330, 1332, 1391(f), 1441(d), 1602-11). The District Court denied both Swarna's and the individual defendants' subsequent motions for reconsideration, the court having adhered to the conclusions stated in its prior order granting Swarna's motion for default judgment as to the individual defendants and denying the same as to Kuwait. See Swarna v. Al-Awadi, 607 F.Supp.2d 509 (S.D.N.Y.2009).


In 1995, Swarna's husband fell ill with heart problems. Having then become the sole source of income for herself, her husband, and their five children, Swarna left her native country of India to work in Kuwait. In Kuwait, a retired high-ranking police officer employed Swarna as one of five domestic workers in his home. Swarna had a " good relationship" with her employer and was satisfied with her arrangement in Kuwait.

Several months after beginning work in Kuwait, the employer's daughter, Al-Shaitan, and son-in-law, Al-Awadi, visited the home. At that time, Al-Awadi was Third Secretary to the Permanent Mission of the State of Kuwait to the United Nations in New York, New York. After observing Swarna interact with their two-year-old child, the individual defendants offered Swarna a position in their New York home as a live-in domestic worker. Although Swarna initially declined, she ultimately accepted the offer after receiving various promises regarding her prospective employment. Among other things, the individual defendants promised to pay Swarna $2,000 per month; to provide Swarna an annual paid vacation to India to visit her family; and to allow her to take Sundays off to attend church. The individual defendants represented to Swarna that she would be treated well in the United States.

In order to secure Swarna's entry into the United States, Al-Awadi accompanied Swarna to the United States Embassy in Kuwait to apply for a G-5 visa authorizing her to work as a household employee of a diplomat. In the visa application, the individual defendants represented to the United States Embassy that they would compensate Swarna at the rate of $2,000 per month for her services in the United States and provide her with lawful conditions of employment. Swarna's salary would be paid for by the individual defendants; however, the individual defendants arranged for Kuwait to reimburse them for certain expenses for Swarna such as dental care. The visa was approved, and on September 8, 1996, Swarna arrived in New York.

Upon Swarna's arrival, the individual defendants confiscated Swarna's passport and visa, which were then kept in the Kuwait Mission. During her employment with the individual defendants, Swarna was paid only $200 to $300 per month-$1,700 to $1,800 less than the agreed compensation. Even that amount, moreover,

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was not directly paid to Swarna but instead sent to Swarna's family in India, thus leaving no funds of her own in the United States. Also contrary to their agreement, Swarna was prohibited from making the annual trip to India or attending church on Sundays.1 According to the facts alleged in the complaint-described in further detail below-Swarna was by no means treated " well" in the United States. See Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 333 (2d Cir.2009) (" [We] are constrained not only to accept the truth of the plaintiff's jurisdictional allegations, but also to construe all reasonable inferences to be drawn from those allegations in plaintiff's favor." (quoting Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 226 (2d Cir.2006))).

Swarna lived and worked in the individual defendants' home in New York City, located about a mile from the United Nations and the Kuwait Mission. She worked approximately seventeen hours a day, seven days a week. Her duties included caring for two young children, doing the laundry, ironing, cleaning the home, and cooking for the family. The individual defendants also provided entertainment at their home in honor of employees of the Kuwait Mission, and on these occasions Swarna cooked for and served these guests until late into the night. Swarna also taught domestic servants of other Kuwait Mission employees how to cook traditional Kuwaiti dishes, and she cooked for an official event held at the Kuwait Mission on " at least one occasion."

The individual defendants did not permit Swarna to leave the apartment without supervision, and even when she was so permitted-which occurred ten to fifteen times during the course of four years-she was instructed to look down at the ground and to avoid making eye contact with anyone. Swarna was usually locked inside the apartment, she was not permitted to use the telephone,2 and she was prohibited from speaking to anybody outside of the individual defendants' family. To prevent Swarna from speaking with other people, she was confined to her room " [w]henever the handyman, electrician, or others visited the apartment during the day." The individual defendants also forbade Swarna from watching any English-language television as part of an effort to prevent her from learning English. They also intercepted calls from her family in India, read her mail, and read her letters before she could send them to her family. To this end, an official from the Kuwait Mission was arranged to translate Swarna's correspondence. On the rare occasion that Swarna was permitted to call her children, the individual defendants listened to the call and deducted the cost of calling cards from Swarna's wages. Swarna did not receive many of the letters her family had sent her, and the individual defendants " failed to mail most of the letters [Swarna wrote] to her family."

The individual defendants repeatedly assaulted and abused Swarna, both physically and psychologically. For example, Swarna was threatened to have her tongue

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cut out and was dragged by her collar on several occasions. The individual defendants referred to Swarna as " dog" or...

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