Lama v. Malik
| Decision Date | 03 November 2014 |
| Docket Number | No. CV 13–2846.,CV 13–2846. |
| Parties | Urmila LAMA, Plaintiff, v. Joginder (“Shammi”) MALIK, Neeru Malik, Kamaljit (“Minu”) Singh, and Harsimaran, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Wilmer Cutler Pickering Hale and Dorr LLP, by: Lori A. Martin, Esq., Chavi Keeney Nana, Esq., Larkin Reynolds, Esq., Andrew Sokol, Esq., New York, NY, for Plaintiff Urmila Lama.
Urban Justice Center, by: Amy Tai, Esq., New York, NY, for Plaintiff Urmila Lama.
Meyers Fried–Grodin, LLP, by: Jonathan Meyers, Esq., New York, NY, for Defendants Joginder Malik and Neeru Malik.
Plaintiff Urmila Lama (“Lama” or “Plaintiff”) brings this action under the Trafficking Victims Protection Reauthorization Act (“TVPRA”) of 2008, 18 U.S.C. § 1595, the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) and the New York McKinney's Labor Law, § 190 et seq. (“NYLL”) seeking compensation for work she performed and injuries she allegedly suffered while working as a domestic worker for the Defendants Joginder (“Shammi”) Malik (“Joginder” or “Shammi”), Neeru Malik (“Neeru”) (collectively, “Malik Defendants” or “Defendants”), Kamaljit Singh and Harsimaran Singh (“Singh Defendants”). Plaintiff also brings state law claims for conversion, fraud and unjust enrichment, and seeks a determination that Plaintiff's claims were not discharged by the bankruptcy of Joginder Malik in 2009. Before the Court is the Malik Defendants' partial motion to dismiss Plaintiff's claims under the FLSA, the NYLL, for unjust enrichment, conversion and fraud, and that her claims are dischargeable. For the reasons that follow, Defendants' motion is denied in its entirety.1
I. Factual Background
The following is a summary of the facts alleged in Plaintiff's complaint: in 1991 in Nepal and India, she began working as a housekeeper for Mr. Pritam Singh, the father of Defendant Neeru Malik and Defendant Minu Singh, who are sisters. In 1992, Pritam Singh gifted Ms. Lama to the Singh Defendants as part of Ms. Singh's dowry. See First Amended Complaint (“AC”), ¶ 12–13. From 1991 through 1996, Ms. Lama worked for the Defendants and their families in Nepal and received room and board. She did not receive regular monetary compensation for her services, but did on occasion when she requested to be paid when she was returning home to visit with her family. AC, ¶ 14.
In 1996, Defendants obtained a visa for Plaintiff and brought her to the United States to work for them. Plaintiff arrived in the United States in September 1996. AC, ¶ 15–16. Mr. Pritam Singh filled out Plaintiff's immigration papers and maintained control of Plaintiffs passport, giving it to the Malik Defendants upon arrival in the United States. AC, ¶ 16–17. Plaintiff did not get her passport back until 2009. AC, ¶ 17.
Starting in September 1996, Plaintiff lived with and worked for all four Defendants in their home in Glen Cove, New York. Also living in the home were the minor children of the Defendants. AC, ¶ 18–19. According to the amended complaint, Plaintiff worked seven (7) days per week, with no days off, working from 7:00am until 10:00 or 11:00 pm, with three (3) short breaks for meals. AC, ¶ 20. She cooked, cleaned, did laundry, and provided childcare. AC, ¶ 21. This type of work continued for the Malik Defendants after the Singh Defendants moved out of the house in 2000. AC, ¶ 24.
Plaintiff was “isolated and dependant on” the Defendants “for virtually every aspect of her life.” AC, ¶ 28. She was not allowed the leave the house unaccompanied, and did not speak or read English. She did not know any other people in the United States other than Defendants and had only “sporadic and fleeting” contact with her family in Nepal. AC, ¶ 28–31. From 2002 through 2006, Plaintiff also assisted the Malik Defendants with their import-export business in addition to the work she performed for the household. AC, ¶ 37–39.
Throughout the 12–year period of her employment in the United States, the Defendants only paid Plaintiff “if and when they wanted.” AC, ¶ 44. The Malik Defendants represented to Plaintiff that she would be paid a fair wage and that they were saving her earnings for her. AC, ¶ 45. To the extent she was paid, it was never directly to her, but paid directly to her family members in Nepal. AC, ¶ 46. In total, Plaintiff received a total of approximately 2 million Nepalese rupees (approximately $24,378) for her nearly 12 years of employment with the Defendants, which calculates to approximately $0.41 per hour. AC, ¶ 47.
In 1997, Defendant Neeru Malik told Plaintiff she would be paid like other Malik Defendant employees, and on several other occasions, Defendant Shammi Malik informed Plaintiff she would be paid a certain sum for her first six years, and receive a raise after that time. AC, ¶ 48–49. On various occasions from 2002 through 2006 when Plaintiff asked about her compensation, Defendant Shammi Malik represented that he was saving her compensation for her and she did not need it immediately since she lived with them and her expenses were covered. AC, ¶ 50–51.
In 2001, Plaintiff wanted to go home to Nepal since her mother had died there, but the Malik Defendants told her that since 5 years had passed since she first came to the U.S., said she needed a green card to go home. AC, ¶ 54. Unbeknownst to her, the Malik Defendants applied for a green card for Plaintiff of their own volition, which was issued on August 14, 2006. AC, ¶ 56–57. Despite her regular inquiries over the status of her green card from 2006 through 2008, the Malik Defendants consistently told Plaintiff it had not arrived, and Plaintiff continued to work for them. AC, ¶ 58–59.
In August of 2008, Plaintiff traveled to Nepal with the Malik Defendants, and was told that her green card had still not arrived, but that she was traveling with a “special travel document” that permitted her to travel, with the Defendants maintaining possession of her travel documents. AC, ¶ 60. Once in Nepal, Plaintiff asked for her compensation and was told she would be paid one million Indian rupees. This sum, in addition to the sporadic payments made to her family over the years, amounted to $0.41 per hour. AC, ¶ 61. Plaintiff then refused to return to the United States with the Defendants. AC, ¶ 62. Six months later, in January or February 2009, Plaintiff received a check for the one million Indian rupees, as well as her passport and green card. AC, ¶ 63.
In the fall of 2009, while applying for a social security card, Plaintiff learned for the first time that her green card had been issued in 2006, not 2009 as the Malik Defendants had claimed. AC, ¶ 66. In July 2012, Plaintiff met with a lawyer for the first time concerning her rights to recover unpaid wages, and in September 2012, Plaintiff filed a complaint with the New York State Department of Labor, which investigation is continuing. AC, ¶ 66–68.
In February 2009, Defendant Shammi Malik filed for bankruptcy under Chapter 7 in the Eastern District of New York. AC, ¶ 69. His schedule of debts did not include any money owed to Plaintiff, nor was Plaintiff provided notice of his bankruptcy filing. On June 2, 2009, the bankruptcy court ordered a discharge of Shammi Malik's bankruptcy and the case was closed. Plaintiff discovered the bankruptcy when her attorneys performed a background check while preparing the complaint in the instant action. AC, ¶ 70–72.
This action was filed on May 14, 2014. Docket entry (“DE”), 1. Plaintiff's complaint alleges thirteen cause of action.
Plaintiff brings three claims under the TVPRA, claiming Defendants engaged in forced labor, sale into involuntary servitude, and unlawful conduct with respect to documents concerning Plaintiff's green card. Plaintiff also alleges claims for failure to pay adequate compensation in violation of the FLSA and the NYLL, conversion for interfering with Plaintiff's possession of her passport, her green card and her earnings, fraudulent misrepresentation, unjust enrichment, and a declaration that the debts due Plaintiff are non-dischargeable by Defendant Shammi Malik's bankruptcy.
The Malik Defendants move to partially dismiss Plaintiff's action. They claim Plaintiff's claims under the FLSA, NYLL, for unjust enrichment and for conversion are at least partially time-barred, that the wage and hours claims, and claims for conversion and fraud are inadequately pled, and that the claims against Shammi Malik are discharged by his bankruptcy. For the reasons that follow, Defendants' motion is denied in its entirety.
In considering a motion to dismiss made pursuant to Rule 12(b)(6), the court must accept the factual allegations in the complaints as true and draw all reasonable inferences in favor of Plaintiff. Bold Electric, Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court rejected the standard set forth in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that a complaint should not be dismissed, “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” id. at 45–46, 78 S.Ct. 99. The Supreme Court discarded the “no set of facts” language in favor of the requirement that plaintiff plead enough facts “to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ; see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although heightened factual pleading is not the new standard, Twombly holds that a “formulaic recitation of cause of action's elements will not do ... Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, at 555, 127 S.Ct. 1955. A pleading need not contain “ ‘detailed factual...
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