Swarna v. Al-Awadi, No. 06 Civ. 4880 (PKC).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtP. Kevin Castel
Citation607 F.Supp.2d 509
Decision Date20 March 2009
Docket NumberNo. 06 Civ. 4880 (PKC).
PartiesVishranthamma SWARNA, Plaintiff, v. Badar AL-AWADI, Halal Muhammad Al-Shaitan, and State of Kuwait, Defendants.
607 F.Supp.2d 509
Vishranthamma SWARNA, Plaintiff,
v.
Badar AL-AWADI, Halal Muhammad Al-Shaitan, and State of Kuwait, Defendants.
No. 06 Civ. 4880 (PKC).
United States District Court, S.D. New York.
March 20, 2009.

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COPYRIGHT MATERIAL OMITTED

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Andrew Jay Fields, Main Street Legal Services, Flushing, NY, Jennifer Lynn Rellis, Matthew Sheehan, Catherine Jane Rosato, Dechert LLP, Philadelphia, PA, Megan Elizabeth Zavieh, David Adam Kotler, Dechert, LLP, Princeton, NJ, for Plaintiff.

Amanda Robin Kosonen, Neil H. Koslowe, Thomas Bernard Wilner, Shearman & Sterling LLP, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

P. KEVIN CASTEL, District Judge:


Plaintiff Swarna Vishranthamma brings this action against her former employers, Badar Al-Awadi and his wife, Halal Muhammad Al-Shaitan ("Individual Defendants") and the State of Kuwait (collectively, "defendants"). At the time of the events in question, Mr. Al-Awadi was a diplomat serving in New York City with the Permanent Mission of the State of Kuwait to the United Nations ("Kuwait Mission"), and plaintiff was employed as

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the Individual Defendants' live-in domestic servant. Mr. Al-Awadi now lives in Paris, France. Plaintiff, asserting jurisdiction under the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350, seeks damages against the Individual Defendants for subjecting her to slavery and slavery-like practices, including trafficking, involuntary servitude, forced labor, assault and sexual abuse ("ATCA claims"). Plaintiff also brings claims under New York law for failure to pay legally required wage, N.Y. Labor Law §§ 190, et seq. and 650, et seq., fraud, unjust enrichment and breach of contract ("labor law claims"). Plaintiff seeks damages against Kuwait on the grounds that Kuwait is vicariously liable on the ATCA and labor law claims, and that Kuwait ratified Mr. Al-Awadi's ants and aided and abetted the Individual Defendants' allegedly unlawful conduct.

Defendants have not answered or otherwise moved with respect to the complaint. Plaintiff now moves for a default judgment pursuant to Rule 55(b)(2), Fed. R.Civ.P. Defendants have filed a Notice of Appearance and argue that this Court lacks subject matter jurisdiction because the Individual Defendants have diplomatic immunity under the Vienna Convention on Diplomatic Relations ("VCDR"), Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, and because Kuwait has sovereign immunity under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602-1607. For the reasons explained below, plaintiff's motion for a default judgment is granted with respect to her claims against the Individual Defendants, but is denied with respect to her claims against Kuwait. Plaintiff's motion for authorization to seek discovery from Kuwait is denied as moot.

BACKGROUND

A. Facts

The following facts, alleged in the complaint and set forth in plaintiff's declaration dated August 5, 2008,1 are taken as true for the purpose of this analysis because defendants have submitted no evidence in support of their claims of immunity. See Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 (2d Cir.2001) ("If the defendant challenges only the legal sufficiency of he plaintiff's jurisdictional allegations ... the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff.... But where evidence relevant to the jurisdictional question is before the court, the district court ... may refer to [that] evidence.") (quotations and citation omitted).

Plaintiff, born in Bhadravati, India, is a citizen of India. (Decl. ¶ 1; Compl. ¶¶ 6, 10.) In 1995, he obtained a position as a domestic worker in the Kuwaiti home of the parents of Ms. Al-Shaitan (Decl. ¶ 5; Compl. ¶ 11.) At this time, Mr. Al-Awadi was serving in New York City as a Third Secretary at the Kuwait Mission.2 (Decl. ¶ 6; Compl. ¶ 14.) He and Ms. Al-Shaitan met plaintiff during a visit to Kuwait. (Decl. ¶ 6; Compl. ¶ 14.)

The Individual Defendants asked plaintiff to return to the United States with them to work in their home. (Decl. ¶ 7; Compl. ¶ 15.) They promised to pay her $2,000 per month, to give her Sundays off

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to attend church, and to give her one month of paid vacation per year to allow plaintiff to visit her family in India. (Decl. ¶ 7; Compl. ¶¶ 16-17.) In order to secure a G-5 visa for plaintiff,3 Mr. Al-Awadi informed an official at the United States Embassy in Kuwait that plaintiff would be given a contract of employment promising payment of $2,000 per month. (Decl. ¶ 8; Compl. ¶¶ 20-22.) Plaintiff was never given such a contract. (Decl. ¶ 8; Compl. ¶¶ 28-29.) Upon her arrival in the United States on or about September 8, 1996, Mr. Al-Awadi immediately confiscated her passport and visa. (Decl. ¶ 9; Compl. ¶ 27.)

Plaintiff lived and worked in the Individual Defendants' home, located about a mile from the United Nations and the Kuwait Mission. (Decl. ¶ 9; Compl. ¶ 26.) She was forced to work approximately seventeen hours per day, seven days a week. (Decl. ¶ 12; Compl. ¶¶ 38-39.) Her duties included caring for two young children, doing the laundry, ironing, cleaning the home and cooling for the family. (Decl. ¶¶ 12-13; Compl. ¶¶ 39-46.) The Individual Defendants also entertained frequently, often in honor of employees of the Kuwait Mission, and on these occasions plaintiff cooked for and served these guests until late into the night. (Decl. ¶¶ 13-14; Compl. ¶¶ 47-48, 50.) Plaintiff was paid only $200 to $300 per month.4 Plaintiff alleges "[u]pon information and belief" that "some of [plaintiffs] expenses were paid by Defendant Kuwait, through the Kuwait Mission." (Compl. ¶ 34; see Decl. ¶¶ 17-19.) For example, on one occasion, the Kuwait Mission allegedly reimbursed Mr. Al-Awadi for the cost of plaintiffs dental work. (Compl. ¶ 34.) Plaintiff was prohibited from making the annual trips to India she had been promised. Her first trip to India was two-and-a-half years after she arrived in the United States, it which point her husband was gravely ill. (Decl. ¶ 21; Compl. ¶ 35.) She was also prohibited from attending church on Sundays, despite a promise that she would be permitted to do so. (Decl. ¶ 20; Compl. ¶ 36.)

Plaintiff was forbidden from leaving the apartment unless supervised by one of the Individual Defendants or an employee from the Kuwait Mission. (Decl. ¶ 24; Compl. ¶¶ 54-59.) Even with supervision, plaintiff only left the apartment ten to fifteen times total in four years. (Decl. ¶ 24; Compl. ¶ 59.) When she was left alone inside the apartment, the Individual Defendants looked her inside. (Decl. ¶ 25; Compl. ¶ 56.) The Individual Defendants forbade plaintiff from using the telephone except to answer when they were calling, they intercepted calls from her family in India, and they read her mail and prevented her from sending mail home to India. (Decl. ¶ 27; Compl. ¶¶ 60, 64-68.)

The Individual Defendants repeatedly assaulted and abused plaintiff, both physically and psychologically. (Decl. ¶¶ 29-30; Compl. ¶¶ 72-73.) On at least two occasions, Ms. Al-Shaitan threatened to cut out plaintiff's tongue. (Compl. ¶ 74.) On several occasions, Ms. Al-Shaitan dragged plaintiff outside by her collar and locked her out of the apartment for half-hour periods, with plaintiff believing that if she left the apartment complex she would be harmed or arrested. (Id. ¶¶ 57, 75.) When plaintiff attempted to leave the Individual Defendants' employ and escape

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their home, Mr. Al-Awadi injured her by throwing his suitcase at her and hitting her. (Id. ¶ 77.) The Individual Defendants referred to plaintiff with derogatory names like "dog" or "donkey." (Id. ¶ 78.) This near-daily abuse led plaintiff to suffer dramatic weight loss, hair loss, nightmares and fatigue, and caused plaintiff to contemplate suicide. (Decl. ¶¶ 31-34.) In September 1998, Mr. Al-Awadi forced himself upon plaintiff and raped her. (Id. ¶ 36; Compl. ¶ 80.) He threatened to kill her if she told anyone. (Decl. ¶ 36; Compl. ¶ 81.) Thereafter, Mr. Al-Awadi raped plaintiff on many occasions when his wife was not home. (Decl. ¶ 36; Compl. ¶¶ 82-83.)

On or about June 25, 2000, the Individual Defendants and plaintiff were preparing for a trip to Kuwait the next day. (Decl. ¶ 37; Compl. ¶ 84.) Plaintiff begged to be sent back to India. (Compl. ¶ 85.) Mr. Al-Awadi became angry, screamed at plaintiff, and threw a fully-packed suitcase at her. (Deel. ¶ 38; Compl. ¶ 86.) This attack caused plaintiff to bleed and left painful bruises on her body. (Compl. ¶ 86.) Mr. Al-Awadi then threatened to hit plaintiff with an iron rod. (Id. ¶ 87.) Plaintiff began screaming and threatened to call the police. (Decl. ¶ 38; Compl. ¶ 87.) Ms. Al-Shaitan slapped plaintiff across the face and Mr. Al-Awadi warned plaintiff that if she did not continue to work for him, she would be harmed during the family's trip to Kuwait. (Decl. ¶ 39; Compl. ¶¶ 87-89.) The next morning, plaintiff seized on an opportunity to escape and fled the Individual Defendants' apartment. (Decl. ¶ 40; Compl. ¶¶ 91-92.)

B. Procedural History

Plaintiff originally filed suit against the Individual Defendants on May 15, 2002. Vishranthamma v. Al-Awadi, 02 Civ. 3710(PKL)(MHD) (S.D.N.Y.). The district court determined that it lacked subject matter jurisdiction because, at the time Mr. Al-Awadi was served, he was employed as a diplomat by the Kuwait Mission and therefore was entitled to diplomatic immunity. See Summary Order, Vishranthamma v. Al-Awadi, 02 Civ. 3710(PKL)(MHD) (S.D.N.Y. Jan. 26, 2005) (adopting Report and Recommendation of Magistrate Judge Dolinger). The court dismissed the case "without prejudice because plaintiff could plausible institute a new action against defendants now that they are no longer associated with the Kuwaiti Mission." Id.

Plaintiff filed this action against the Individual Defendants and the State of Kuwait on June 23, 2006. On September 20, 2007,...

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9 practice notes
  • SERVAAS INC. v. Republic of Iraq, No. 09 Civ. 1862(RMB)(RLE).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 19, 2010
    ...some ii `commercial activity' by the foreign state that iii had `substantial contact' with the United States." Swarna v. Al-Awadi, 607 F.Supp.2d 509, 524 (S.D.N.Y.2009) (internal alterations omitted) (quoting Saudi Arabia v. Nelson, 507 U.S. 349, 356, 113 S.Ct. 1471, 123 L.Ed.2d 47 (19......
  • Cross v. Al-awadi, Docket Nos. 09-2525-cv (L), 09-3615-cv (XAP).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 24, 2010
    ...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). I. BACKGROUND In 1995, Swarna's husband fell ill with heart problems. Having then become the sole source of income for herself, h......
  • Diallo v. State Of Md., No. 91
    • United States
    • Court of Special Appeals of Maryland
    • May 10, 2010
    ...to immunity, a court must dismiss the matter because it lacks subject matter jurisdiction over the defendant. See Swarna v. Al-Awadi, 607 F. Supp. 2d 509, 515 (S.D.N.Y. 2009)(noting that when raised, diplomatic "[i]mmunity must be determined at the outset because it implicates the Cour......
  • United States v. Al Sharaf, Criminal No. 15-mj-139 (BAH)
    • United States
    • U.S. District Court — District of Columbia
    • May 2, 2016
    ...conduct that was ‘entirely peripheral’ to those official functions," Def.'s R&R Resp. at 10 (citing Swarna v. Al–Awadi , 607 F.Supp.2d 509, 518 (S.D.N.Y.2009) ), and " ‘not on the nature of the underlying conduct,’ 183 F.Supp.3d 53" id. (quoting Brzak , 551 F.Supp.2d at 3......
  • Request a trial to view additional results
9 cases
  • SERVAAS INC. v. Republic of Iraq, No. 09 Civ. 1862(RMB)(RLE).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 19, 2010
    ...some ii `commercial activity' by the foreign state that iii had `substantial contact' with the United States." Swarna v. Al-Awadi, 607 F.Supp.2d 509, 524 (S.D.N.Y.2009) (internal alterations omitted) (quoting Saudi Arabia v. Nelson, 507 U.S. 349, 356, 113 S.Ct. 1471, 123 L.Ed.2d 47 (19......
  • Cross v. Al-awadi, Docket Nos. 09-2525-cv (L), 09-3615-cv (XAP).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 24, 2010
    ...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). I. BACKGROUND In 1995, Swarna's husband fell ill with heart problems. Having then become the sole source of income for herself, h......
  • Diallo v. State Of Md., No. 91
    • United States
    • Court of Special Appeals of Maryland
    • May 10, 2010
    ...to immunity, a court must dismiss the matter because it lacks subject matter jurisdiction over the defendant. See Swarna v. Al-Awadi, 607 F. Supp. 2d 509, 515 (S.D.N.Y. 2009)(noting that when raised, diplomatic "[i]mmunity must be determined at the outset because it implicates the Cour......
  • United States v. Al Sharaf, Criminal No. 15-mj-139 (BAH)
    • United States
    • U.S. District Court — District of Columbia
    • May 2, 2016
    ...conduct that was ‘entirely peripheral’ to those official functions," Def.'s R&R Resp. at 10 (citing Swarna v. Al–Awadi , 607 F.Supp.2d 509, 518 (S.D.N.Y.2009) ), and " ‘not on the nature of the underlying conduct,’ 183 F.Supp.3d 53" id. (quoting Brzak , 551 F.Supp.2d at 3......
  • Request a trial to view additional results

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