Ross v. Jenkins et al
Filing
40
MEMORANDUM AND ORDER granting 23 Motion for Default Judgment; granting 34 Motion for Attorney Fees. See Order for details. Signed by District Judge Daniel D. Crabtree on 5/23/18. Mailed to pro se Defendants by regular mail. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENDRA ROSS,
Plaintiff,
Case No. 17-2547-DDC-TJJ
v.
ROYALL JENKINS, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Kendra Ross seeks default judgment against defendants Royall Jenkins, The
Value Creators, Inc. (f/k/a The United Nation of Islam, Inc.), The Value Creators LLC, and The
Value Creators, Inc. Doc. 23. The court held a hearing on plaintiff’s motion on February 2,
2018. Plaintiff testified at the hearing and presented other evidence. Plaintiff’s licensed clinical
social worker also testified at the hearing. Plaintiff asked the court to enter a default judgment
against defendants on all her claims. Plaintiff also made a damages request at the hearing, asking
the court to award her damages for restitution, emotional distress, punitive damages, liquidated
damages, treble damages under RICO, and damages for conversion. Finally, plaintiff asked for
reasonable attorneys’ fees and costs. Doc. 34.
After carefully considering the evidence adduced at the February 2, 2018 hearing and
plaintiff’s submissions, the court grants plaintiff’s Motion for Default Judgment (Doc. 23)
against all defendants and her Motion for Attorneys’ Fees (Doc. 34). The court awards plaintiff
$453,517.20 in restitution damages, $2,920,000 in emotional distress damages, $3,373,517.20 in
punitive damages, $282,677.50 as liquidated damages, $907,034.40 for trebled damages under
RICO, and $1,800 as conversion damages. The court also awards plaintiff $117,184.34 for
reasonable attorneys’ fees and costs.
I.
Procedural Background
On September 15, 2017, plaintiff Kendra Ross filed a Complaint against Royall Jenkins,
The Value Creators, Inc. (f/k/a The United Nation of Islam, Inc.), The Value Creators LLC, and
The Value Creators, Inc. Doc. 1. The Complaint asserts 161 federal and state law claims. The
federal claims include violations of the Trafficking Victims Protection Reauthorization Act
(“TVPRA”), 18 U.S.C. §§ 1589, 1590, and 1595, for human trafficking and forced labor; the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., for unpaid wages; and the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961. The state law claims
consist of three categories: (1) violations of human trafficking laws; (2) violations of minimum
wage laws; and (3) violations of Kansas tort and quasi-contract law. Plaintiff asserts that
defendants violated Kansas, New York, New Jersey, and Ohio human trafficking laws. Plaintiff
also claims that defendants violated minimum wages laws for those same states. Finally,
plaintiff alleges that plaintiff violated Kansas laws for conversion, unjust enrichment, and both
intentional and negligent infliction of emotional distress.
Plaintiff served the Complaint on defendant Royall Jenkins on September 21 and 25,
2017. See Docs. 9 & 10. Plaintiff served the Complaint on defendants The Value Creators, Inc.
(f/k/a The United Nation of Islam, Inc.), The Value Creators LLC, and The Value Creators, Inc.
(collectively, “The Value Creators”) on September 18 and 20, 2017. See Docs. 11–13, 15–17.
Defendant Royall Jenkins filed a Motion for a Writ of Certiorari on October 11, 2017.
Doc. 18. Magistrate Judge Teresa J. James denied defendant’s motion, and noted that
1
It appears the Complaint unintentionally omitted Count VIII. Doc. 24 at 23 n.20. So, the claims skip
from Count VII directly to Count IX.
2
defendant’s motion did not meet the requirements of the Federal Rules of Civil Procedure to
qualify as a timely Answer or other response. The other defendants have not appeared.
On October 23, 2017, plaintiff filed an Application for Clerks Entry of Default against all
defendants (Doc. 20). The following day, the Clerk entered default against all defendants under
Federal Rule of Civil Procedure 55(a) (Doc. 22).
Plaintiff now asks the court to enter a default judgment against all defendants under Rule
55(b)(2), awarding her damages and attorneys’ fees.
II.
Legal Standard
Federal Rule of Civil Procedure 55 provides a two-step process for securing a default
judgment. First, Rule 55(a) allows the Clerk to enter a default against a party who “has failed to
plead or otherwise defend” a lawsuit. Second, after the Clerk enters default, plaintiff may
request the Clerk to enter judgment if the amount sought is “a sum certain or a sum that can be
made certain by computation.” Fed. R. Civ. P. 55(b)(1). But when, as here, a plaintiff’s claim is
not for a sum certain or a sum made certain by calculation, plaintiff must apply to the court for a
default judgment under Rule 55(b)(2). When considering a motion for default judgment, the
court may hold a hearing if “it needs to (A) conduct an accounting; (B) determine the amount of
damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other
matter.” Fed. R. Civ. P. 55(b)(2).
“Once the default is established, defendant has no further standing to contest the factual
allegations of plaintiff’s claim for relief.” Mathiason v. Aquinas Home Health Care, Inc., 187 F.
Supp. 3d 1269, 1274 (D. Kan. 2016) (citations and internal quotation marks omitted). The court
accepts as true all well-pleaded factual allegations in the Complaint. Id. This does not extend,
however, to allegations about the amount of damages. Id.
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But, even after default, “‘it remains for the court to consider whether the unchallenged
facts constitute a legitimate cause of action, since a party in default does not admit mere
conclusions of law.’” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010) (quoting 10A Charles
A. Wright et al., Federal Practice and Procedure § 2688, at 63 (3d ed. 1998)). When deciding
whether to enter a default judgment, a district court enjoys broad discretion. Mathiason, 187 F.
Supp. 3d at 1274.
A default judgment also does not establish the amount of damages. Id. at 1274–75.
Instead, “[p]laintiff must establish that the amount requested is reasonable under the
circumstances.” Id. at 1275 (citing DeMarsh v. Tornado Innovations, LP, No. 08-2588-JWL,
2009 WL 3720180, at *2 (D. Kan. Nov. 4, 2009)). A court may award damages “‘only if the
record adequately reflects the basis for [the] award via a hearing or a demonstration by detailed
affidavits establishing the necessary facts.’” DeMarsh, 2009 WL 3720180, at *2 (quoting
Adolph Coors Co. v. Movement Against Racism & the Klan, 777 F.2d 1538, 1544 (11th Cir.
1985) (further citations and internal quotation marks omitted)).
III.
Findings of Fact
A.
Defendant Royall Jenkins
Before 1978, Royall Jenkins was a member of the Nation of Islam under the leadership of
Elijah Muhammad. Dr. Louis Farrakhan assumed leadership of the Nation of Islam when Elijah
Muhammad died in 1978. Mr. Jenkins asserts that, around the time of Elijah Muhammad’s
death, angels and/or scientists abducted him, escorted him through the galaxy in a spaceship, and
informed him he was “The Supreme Being.” During his abduction, Mr. Jenkins asserts, these
beings instructed him how to govern Earth.
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When he “returned to Earth” in 1978, Mr. Jenkins split from Nation of Islam and
informally organized the United Nation of Islam (“UNOI”) as a radical alternative to Dr.
Farrakhan’s Nation of Islam. Since that time, Mr. Jenkins has ordered his UNOI followers to
refer to him as “Allah on Earth,” “Allah in Person,” or “The Supreme Being.”
Sometime around 1996, Mr. Jenkins founded “Heaven”—a UNOI model community in
an economically-disadvantaged neighborhood in Kansas City, Kansas. Mr. Jenkins later
established additional UNOI communities in other places across the United States, including:
Atlanta, Georgia; Dayton, Ohio; Newark, New Jersey; Harlem, New York; Temple Hills,
Maryland; Mobile, Alabama; and Cincinnati, Ohio. The Value Creators now own the personal,
real, and intellectual property used by these communities in the nation-wide trafficking scheme
at issue in this case.
Mr. Jenkins has a large immediate family scattered around the United States. He has
had at least 13 wives, and has fathered about 20 children (collectively, the “Royall Family”).
Mr. Jenkins calls some of his wives “concubines.” Royall Family members reside in different
locations across the United States.
Mr. Jenkins has owned several houses on one street in Kansas City, Kansas, where his
wives, children, and grandchildren have resided. Also, Mr. Jenkins has owned a house called the
“House of Peace” in Kansas City, Kansas. The “House of Peace” is in a secret location, only
accessible by Mr. Jenkins and a few select people.
Mr. Jenkins holds ownership interests in several businesses, including all three
business entities collectively referred to as The Value Creators. Mr. Jenkins and the rest of the
Royall Family directly have benefitted financially from the revenues of these businesses, in large
part because the businesses employ trafficked laborers who are not paid any wages for the work
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they perform. They also have derived financial benefits from the trafficked laborers who are
paid no wages for providing around-the-clock child care and housekeeping work to the Royall
Family.
While plaintiff was a member of the UNOI community, Mr. Jenkins was the business and
spiritual leader of UNOI and head of the Royall Family. He personally made all the decisions
about the trafficked laborers which benefitted UNOI, the Royall Family, and Mr. Jenkins
himself.
B.
UNOI
1.
Organization
UNOI operated as the corporate entity for Mr. Jenkins’s cult while trafficking plaintiff.
UNOI employed a hierarchical chain of command, starting with Local Secretaries at the bottom;
the National Secretary, Officers, Captains, Lieutenants, and the National Lieutenant in the
middle; and Mr. Jenkins at the top. Everyone in the chain of command ultimately reported to
Mr. Jenkins. Mr. Jenkins approved almost everything, if not everything, that happened in “his
Nation.”
UNOI divided its membership into two groups: (1) “part-time” followers, who have a
life or job outside of UNOI community; and (2) “full-time” followers, who work for UNOI, live
in homes owned and operated by UNOI, and interact only with other UNOI followers. UNOI
afforded “full-time” followers a more respected status and fully included them in all activities.
UNOI leaders put followers on “part-time” status as a form of punishment. UNOI subjected
“part-time” followers to full-body searches before permitting them to enter UNOI meetings.
Individuals who UNOI demoted to “part-time” status could regain “full-time” status by various
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demonstrations of penance, including formal apologies expressing shame and contrition to UNOI
leaders.
UNOI employed a strict discipline system that Mr. Jenkins primarily developed,
approved, and enforced. Under this system, individuals could receive “Class A” discipline for
severe misconduct (e.g., talking back to superiors or using an incorrect tone). Followers
subjected to “Class A” discipline were not permitted to speak freely to anyone and, instead, had
to ask permission of the individual to whom they wished to speak. The punishment period could
range from 15 days to indefinitely. Also, followers subjected to “Class A” discipline often were
forced to fast.
Individuals could receive “Class B” punishment for moderately severe misconduct (e.g.,
playing too much, not cleaning one’s bedroom, failing a home inspection). Followers subjected
to “Class B” discipline endured public censure during meetings. Also, they often were forced to
fast.
Individuals could receive “Class C” punishment after Class A or Class B punishment as a
parole mechanism. Individuals who received “Class C” punishment were observed more closely
for UNOI violations for about 30 days.
Individuals could receive “Class F” punishment for extremely severe misconduct (e.g.,
being overweight, child molestation). UNOI banished followers subjected to “Class F”
discipline.
2.
UNOI Doctrine
UNOI doctrine primarily focused on the supremacy of Mr. Jenkins as God on Earth.
UNOI disciples thus considered Mr. Jenkins’s teachings as prophetical. Mr. Jenkins’s teachings
emphasized and prioritized the differences between the races and genders. Mr. Jenkins claims
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that the “Black Man” is superior to the “White Man,” and that the “Black Man” created the
“Black Woman” as a natural pleasure. Mr. Jenkins also teaches that women are inferior to men
and, to escape eternal damnation, women should completely submit to men.
These basic teachings mandated a regimented and controlled family organizational
structure within UNOI. UNOI required female members to attend regular women’s meetings,
where women learned how to be “good housewives” and how to “submit” to their husbands.
UNOI required male members to attend regular men’s meetings, where they learned how to lead
and direct their wives and children. Mr. Jenkins is the primary author of the educational
materials for both the women and men’s gender role meetings.
UNOI monitored women’s body weights closely. UNOI weighs women every Sunday
before services. If a “full-time” female member was over an “ideal” weight, UNOI required her
to fast. If a “part-time” female member was over an “ideal” weight, UNOI required her to pay a
fee. Women were forced to meet with a psychic “doctor” to discuss their nutritional needs and
diet.
UNOI controlled the language that members were permitted to use. For example,
members were not permitted to say, “Bless You,” “Please,” or any words that began with the
letter “P.” UNOI instructed members to say “however” instead of “but,” and to say “share with”
instead of “told.”
UNOI employed an extensive system for courtship and marriage. Under this system,
men submitted “bids” on women to Mr. Jenkins through his chain of command in the
organization. UNOI’s chain of command either approved or rejected these bids as they moved
up to Mr. Jenkins. Mr. Jenkins ultimately approved or rejected the bids already approved by his
lower deputies. Mr. Jenkins’s reasons for rejecting bids were often as simple as the individuals
8
were “not meant for each other.” There were no minimum age limits or restrictions for marriage
among UNOI members.
Once approved, the men engaged the women in three distinct stages of courtship. First,
men were instructed to send an email to UNOI leadership with a list of women they wished to
court. The leaders then would forward that email to a psychic doctor who, he claimed, knew
which members were compatible with each other. Then, the psychic doctor would notify
UNOI’s leadership of his decisions about compatibility. After a man selected a woman from this
list, they would start “interviewing” (i.e., dating). At first, couples only could talk on the phone
and in person. Then, they were permitted to have physical contact with one another, but no
sexual contact.
The entire courtship process typically lasted five months. If the union was permitted by
UNOI leadership, the final step in this process was marriage. UNOI members married without
securing government-issued marriage licenses.
3.
Education of Children and Adolescents within UNOI
Mr. Jenkins authored the central literature for UNOI, including the children’s education
curriculum. This literature included some original teachings from Elijah Mohammed and some
literature authored by Mr. Jenkins.
UNOI did not send its children and adolescent members to public school. Instead, it
required their attendance in UNOI’s own education system. Mr. Jenkins’s teachings asserted
that public school systems are corrupt. UNOI’s education system did not include properly
certified teachers or teaching curriculum. If individuals excelled in a subject area, UNOI would
appoint them as teachers in that subject. UNOI’s education system included courses about Mr.
Jenkins’s literature, science, and math. Mr. Jenkins’s teachings permeated all subjects in the
9
children’s education curriculum. Courses often ended abruptly, and did not follow a schedule or
syllabus. During UNOI classes, young students were shown horror films such as “The Omen”
and “Crazy as Hell.”
UNOI ran a school called the “University of the Art and Logistics of Civilization.”
UNOI required all “full-time” members to attend this “University.” Many other UNOI members
attended classes by listening to Mr. Jenkins’s recordings or conference calls led by other cult
leaders in the living room of the home where they lived.
The disciplinary system at UNOI schools involved paddling children for infractions, even
accidental ones. For example, if a child accidentally touched one of Mr. Jenkins’s children or
grandchildren, they were beaten.
4.
Working in UNOI
UNOI forced its members to work in various businesses it owned, e.g., restaurants,
bakeries, supermarkets, gas stations, a sewing factory, and a construction company. Specifically,
UNOI ran a business called “Food for Life Supreme.” The Value Creators currently owns and
operates Food for Life Supreme, with locations in Atlanta, Georgia; Newark, New Jersey;
Harlem, New York; Temple Hills, Maryland; Dayton, Ohio; Cincinnati, Ohio; Mobile, Alabama;
and Kansas City, Kansas. UNOI members worked at UNOI businesses but UNOI never paid
them for the work they performed.
Many members, including plaintiff, worked every day of the week without breaks. Many
members worked at UNOI business and schools for eight-hour shifts during the day and then
were expected to perform additional work—cooking, cleaning, childcare—when they returned to
the home where they lived. Several teenage members lived with UNOI heads of household, and
the heads of household would dictate their labor responsibilities for the home.
10
UNOI controlled where and when members went to the supermarket and which groceries
they could buy. UNOI maintained a list of approved grocery stores and approved items for
members to buy. Members were required to submit a grocery list for approval during communal
shopping runs. Many UNOI members, including plaintiff, received food stamps from the federal
government. All “full-time” members had to surrender their Electronic Benefit Transfer
(“EBT”) cards to UNOI leaders, and UNOI rationed funds from those cards by household,
controlling members’ budget allowance from the federal government. Members did not receive
a ration that was equivalent to the ration provided to them individually through the EBT cards.
5.
Health Care for Members of UNOI
UNOI did not provide its members with any health insurance. UNOI also did not allow
its members to receive medical care offered by individuals outside of UNOI. Instead, UNOI
limited its members to medical care provided by an individual named Dr. Marvin MacIntosh. He
treated all medical issues (e.g., obstetrics, gynecology, minor emergency medicine, and
pediatrics) experienced by UNOI members.
6.
The Value Creators
Around September 2011, Mr. Jenkins began changing his teaching on key doctrines such
as death and free will. Mr. Jenkins said UNOI would “be tested” and that he individually was
“going through a testing period.” At the same time, UNOI’s chain of command began to
dissipate, and Mr. Jenkins moved to Arizona, which he called “the land of peace.” Following
this “testing period,” Mr. Jenkins and other leaders organized The Value Creators entities.
In April 2015, Mr. Jenkins and others established The Value Creators as a successor in
interest to UNOI. The Value Creators is effectively UNOI but using a different name, and it
includes all the same (or similar) businesses and members. The Value Creators essentially
11
maintains the same doctrines, chain of command structure, “employment” practices, educational
mandates, and health care directives the UNOI employed.
C.
Plaintiff Kendra Ross
In 1991, Plaintiff Kendra Ross was born in Memphis, Tennessee. At the age of two, she
moved to Atlanta, Georgia with her mother. Shortly after settling in Atlanta, the local UNOI
temple leader introduced plaintiff’s mother to UNOI. Plaintiff’s mother, and therefore plaintiff,
joined UNOI around that time.
From age two until age 11, plaintiff and her mother were “part-time” members of UNOI,
meaning they participated in UNOI but lived outside the organization. When she was nine years
old, plaintiff began cooking and packaging food for UNOI fundraisers. UNOI received the
proceeds from these fundraisers. Plaintiff received no compensation for this work. Plaintiff
attended public school in the Atlanta area through the fifth grade.
1.
Kansas City, Kansas
In 2002, at the age of eleven, plaintiff and her mother moved to Kansas City, Kansas.
There, they were elevated to “full-time” status members of UNOI. Around that time, UNOI
commanded plaintiff’s mother to remove plaintiff from public school and to send her to a UNOIrun school. Plaintiff’s mother obeyed the command.
At that time, a UNOI Secretary forced plaintiff to work at a UNOI-run bakery and
restaurant for a few hours before school and a full eight-hour shift after school. UNOI also
forced plaintiff to sell baked goods and work at catering events for UNOI. After working in the
bakery, plaintiff worked in a UNOI home, performing such work as cooking and cleaning, and
providing childcare.
12
The next year, Mr. Jenkins ordered that plaintiff be removed from her mother’s home,
and directed that she go live in a UNOI women’s household. This household consisted of a few
women with young girls, other girls around plaintiff’s age, and plaintiff’s sister. During this
time, UNOI forced plaintiff to maintain a strict diet of rice, beans, fruit, and salad. So, plaintiff
became severely malnourished. Plaintiff was not permitted to see a licensed doctor or otherwise
receive medical attention for her malnourishment.
From the age of 11 through the age of 14, plaintiff worked about 8,320 hours at the
bakery, and about 2,080 hours as a maid. The prevailing wages at that time for Kansas City were
$11 per hour for bakery services and $9 per hour for cleaning services. But UNOI did not
compensate plaintiff for any of this work.
At the age of 15, UNOI removed plaintiff from UNOI-run school so she could work at a
UNOI-owned and operated diner and teach younger UNOI students. At the diner, she prepared
and cooked food. UNOI never permitted plaintiff to attend any school, UNOI-sponsored or
otherwise, after age 15. Plaintiff worked about 2,600 hours at the diner in 2006 and 2007. The
prevailing wages at that time for a diner cook in Kansas City were $12 per hour. UNOI never
compensated plaintiff for any of this work.
During a UNOI celebration, Ayesha Mohammad, one of Mr. Jenkins’s wives, publicly
called plaintiff and others to gather on a stage and announced where each of the individuals
would be shipped to work. Plaintiff did not have any prior notice of this forced relocation.
Plaintiff moved to Atlanta within two days of that announcement.
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2.
Atlanta, Georgia
When UNOI moved plaintiff to Atlanta, Georgia, plaintiff’s mother and sister were
placed on “part-time” status and were living together. Plaintiff’s mother did not know that
plaintiff would be moving to Atlanta.
While in Atlanta, plaintiff was forced to work full-time in a restaurant owned and
operated by UNOI without any pay. Her work consisted of preparing food for the restaurant and
baking pies, cakes, and other pastries.
While working at the restaurant in Atlanta, plaintiff severely cut her finger. She was not
given any medical attention except for two band-aids to stop the bleeding.
While in Atlanta, plaintiff lived in one of Mr. Jenkins’s family homes. The residents of
the home included one of Mr. Jenkins’s wives, one of his concubines, the husband and son of the
concubine’s sister, another couple, and about 12 other minors. After plaintiff returned home
from the restaurant, UNOI forced her to prepare food, cook, and clean for this household of
about 15–18 people.
Plaintiff lived in Atlanta for four or five months. During the five months she was there,
plaintiff worked about 1,320 hours as a cook at the restaurant, and about 308 hours as a house
cook and maid. The prevailing wages at that time in Atlanta were $12 per hour for restaurant
cooking services and $10 per hour for maid services. UNOI did not compensate plaintiff for any
of this work.
UNOI sent plaintiff back to Kansas because, according to UNOI officials, she did not
have the “proper attitude.”
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3.
Back to Kansas City, Kansas
In Kansas City, plaintiff lived in a UNOI home with a few younger women, men, and
couples. The caretaker of the home physically and emotionally abused plaintiff. Although she
reported several injuries, UNOI did not permit her to see a licensed medical professional.
Also during this time, plaintiff worked at a diner making meals for 25 single UNOI men.
And she provided childcare for the children in the home. Plaintiff typically would arrive at the
diner at 8:00 a.m. and work until 5:00 p.m., seven days a week. She also waited tables, but was
not permitted to keep her tips. When she returned home, plaintiff cleaned, cooked, and served
everyone until 8:30 p.m. or 9:00 p.m. each night.
Mayesha Jenkins, the granddaughter of Royall Jenkins, called plaintiff while she was
living in Kansas to tell her that she was moving to Newark, New Jersey. UNOI moved plaintiff
to New Jersey a few days after she received this phone call.
During her time in Kansas City, plaintiff worked about 6,552 hours at the diner, and
about 2,184 hours as a maid. The prevailing wages at that time in Kansas City were $12 per
hour for her services at the diner and $10 per hour for her housemaid and childcare services.
UNOI never compensated plaintiff for any of this work.
4.
New Jersey and New York
In April 2009, when plaintiff was 17, defendants forcibly moved her to New Jersey,
where she worked in restaurants in Newark, New Jersey, and Harlem, New York. She prepared
food, grilled, cooked, and waited tables for the restaurant. UNOI did not permit plaintiff to keep
her tips; it confiscated them.
While plaintiff worked in UNOI restaurants in New Jersey and New York, UNOI leaders
expressed concern about government officials discovering minors working at their restaurants.
15
UNOI leaders instructed plaintiff and others to avoid any child labor investigators. If the child
labor investigation team visited the restaurant, plaintiff was instructed to leave and “take a walk.”
Beside her work at UNOI restaurants, UNOI forced plaintiff to cook for an entire
household of about 25 UNOI members.
During her time in New York and New Jersey, plaintiff worked about 1,820 hours as a
cook at the restaurant, and about 156 hours as a maid and house cook. The prevailing wages at
that time in the New York City area were $14 per hour for her bakery services and $12 per hour
for her cleaning services. Plaintiff was not compensated for any of this work.
While in New Jersey, Maryum Mohammed—a “full-time” member of UNOI—reported
plaintiff for failing to clean a blender in the restaurant. Plaintiff received a disciplinary phone
call from a UNOI leader for this infraction.
UNOI leaders told plaintiff that she had to leave New Jersey because she did not
have the “right spirit.” The next day, UNOI leaders forced plaintiff onto a UNOI delivery truck
to move.
5.
Dayton, Ohio
In 2009, at the age of 18, UNOI forcibly moved plaintiff to Dayton, Ohio. In Dayton,
plaintiff lived in a group home, then with Mr. Jenkins and his family, and later with a UNOI
couple who had been demoted to “part-time” status. While living with Mr. Jenkins and his
family, plaintiff was forced to clean the entire house.
In Dayton, plaintiff worked for another UNOI restaurant. Her duties included preparing
food and cooking for the carry-out and community customers. She worked six days per week,
beginning at 6:00 a.m. in the morning and at times working as late as 11:00 p.m. Other than
Sundays, plaintiff never took a single day off work while she was in Dayton.
16
During her time in Dayton, plaintiff worked about 2,652 hours at the restaurant, and
about 78 hours as a maid. The prevailing wages at that time for Dayton were $12 per hour for
her restaurant cooking services and $10 per hour for her cleaning services. Plaintiff was not
compensated for any of this work.
While in Dayton, the government issued plaintiff a $150 per month food subsidy. Every
month she lived in Dayton, UNOI confiscated plaintiff’s subsidy for its own use without her
consent.
6.
Probation and Expulsion
In 2009, UNOI demoted plaintiff to “part-time” status after she refused to drink
bloodroot—a gin-based drink. Her refusal was reported to Mayesha Jenkins. Ms. Jenkins told
plaintiff that she had three days to find somewhere else to live, and that she would be placed on
“part-time” status.
Later that same year, UNOI placed plaintiff on “away from us indefinitely” status and
forcibly moved her to Tennessee. There, she lived with her aunt (a non-UNOI member). This
was the first time that plaintiff lived with a non-UNOI member since age two.
7.
Coercion Back to UNOI
During the time plaintiff was on “indefinitely away from us” status, UNOI did not allow
plaintiff to have any contact with her mother, sisters, or friends—all of whom were members of
UNOI. So, plaintiff was alone because every person in her life from age 11 was a UNOI
member.
UNOI obstructed plaintiff’s communications with her friends and family to coerce and
control plaintiff into rejoining UNOI. Specifically, UNOI understood that a member who was
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“away from us” would feel enormous pressure to rejoin UNOI because the UNOI community
was so dissociated from mainstream American society.
In April 2010, feeling pressure to rejoin the only life she knew, plaintiff told leaders of
the organization that she “wanted to make her record right with Allah,” and had “learned her
lesson.” UNOI permitted plaintiff to move back to Dayton, Ohio, where she lived with
her sister and continued to work at a UNOI restaurant without pay.
For the next two years, plaintiff worked about 10,608 hours at the restaurant, and about
312 hours as a maid. At that time, the prevailing wages in Dayton were $12 per hour for her
cooking services and $10 per hour for her cleaning services. Plaintiff, however, was not
compensated for any of this work.
8.
Marriage
At age 20, UNOI facilitated a marriage between plaintiff and another UNOI member
through a psychic doctor. On October 10, 2011, plaintiff’s UNOI marriage became official by
UNOI terms. Plaintiff was forced to do all the cooking, cleaning, and housework in the home
she shared with her UNOI husband. UNOI husbands, including the individual to whom UNOI
arranged a marriage for plaintiff, regularly practiced polygamy. Plaintiff is no longer in a
marriage recognized by the defendants. Plaintiff is not, and never has been, in a legal marriage.
9.
Escape from UNOI
Plaintiff’s painful ordeal ended only when UNOI began to fracture and she received
guidance from outside family members and non-profit organizations that had learned of
plaintiff’s treatment. In 2012, at the age of 21, plaintiff gathered her courage and strength to
escape from UNOI.
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In 2014, plaintiff was diagnosed with post-traumatic stress disorder (“PTSD”) resulting
from her trafficking experiences. While she can control her PTSD and emotional health with
properly-prescribed treatment, she still suffers from the psychological effects of her childhood
trafficking.
IV.
Conclusions of Law
A.
Subject Matter Jurisdiction
“Before it may enter default judgment, the Court has an affirmative duty to determine
whether it has subject matter jurisdiction.” Olivas v. Bentwood Place Apartments, LLC, No. 094035-JAR, 2010 WL 2952393, at *6 (D. Kan. July 26, 2010) (citing Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). Federal courts have original
jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. And, 28 U.S.C. § 1367 provides that “in any civil action of which
the district courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III of the United
States Constitution.” See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)
(holding that a district court has “[p]endent jurisdiction”—now called supplemental
jurisdiction—over state law claims in a case if subject matter jurisdiction exists over the federal
claims and the “state and federal claims . . . derive from a common nucleus of operative fact.”).
Here, plaintiff asserts claims under three federal acts—TVPRA, FLSA, and RICO.
Plaintiff’s lawsuit thus arises under federal law, and the court has subject matter jurisdiction
under 28 U.S.C. § 1331. Plaintiff also asserts claims under state laws. Those state law claims
19
derive from the same operative facts as the federal claims. The court thus has supplemental
jurisdiction over plaintiff’s state law claims under § 1367.
B.
Personal Jurisdiction
A court also must have personal jurisdiction over a defendant before it can enter a default
judgment against him. Bixler, 596 F.3d at 761. In a federal question case, like this one, a court
can assert personal jurisdiction over a defendant if: (1) the applicable statute potentially confers
jurisdiction by authorizing service of process on the defendant; and (2) the exercise of
jurisdiction comports with due process. Klein v. Cornelius, 786 F.3d 1310, 1317 (10th Cir.
2015) (quoting Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir. 2000)
(further citations omitted)).
RICO provides for nationwide service of process. See 18 U.S.C. § 1965(b) (“In any
action under section 1964 of this chapter in any district court of the United States in which it is
shown that the ends of justice require that other parties residing in any other district be brought
before the court, the court may cause such parties to be summoned, and process for that purpose
may be served in any judicial district of the United States by the marshal thereof.”); Cory v.
Aztec Steel Bldg., Inc., 468 F.3d 1226, 1231 (10th Cir. 2006) cert. denied, 550 U.S. 918 (2007)
(“When a civil RICO action is brought in a district court where personal jurisdiction can be
established over at least one defendant, summonses can be served nationwide on other
defendants if required by the ends of justice.”). In other words, the court properly can exercise
personal jurisdiction over defendant Royall Jenkins, an Arizona resident,2 if: (1) it has personal
jurisdiction over at least one other defendant in this action; and (2) the exercise of jurisdiction
over Mr. Jenkins satisfies the ends of justice.
2
Plaintiff’s Complaint alleges that defendant Royall Jenkins is a resident of Arizona.
20
Plaintiff’s Complaint makes four allegations that demonstrate the court has personal
jurisdiction over The Value Creators, Inc. (f/k/a The United Nation of Islam, Inc.), The Value
Creators, LLC, and The Value Creators, Inc. They are: (1) UNOI formally changed its name in
Kansas to The Value Creators, Inc; (2) UNOI is a Delaware Corporation with its principal place
of business3 in Kansas; (3) The Value Creators, LLC has three members—Royall Jenkins,
Ephriam Woods, and William Green; and (4) Mr. Woods is a resident of Kansas. These
allegations establish that The Value Creators, Inc. is a resident of Kansas. See Newsome v.
Gallacher, 722 F.3d 1257, 1267 (10th Cir. 2013) (“[A] corporation is considered domiciled
where it is incorporated and where it has its ‘principal place of business’”). The allegations also
demonstrate that The Value Creators, LLC is a resident of Kansas. See Siloam Springs Hotel,
LLC v. Century Sur. Co., 781 F.3d 1233, 1234 (10th Cir. 2015) (“[A]n LLC, as an
unincorporated association, takes the citizenship of all its members.”). Because defendants The
Value Creators, Inc. (f/k/a The United Nation of Islam, Inc.), The Value Creators, LLC, and The
Value Creators, Inc. are residents of Kansas, the court has personal jurisdiction over them. The
court now must determine if exercising personal jurisdiction over defendant Royall Jenkins will
serve the ends of justice.
“The ‘ends of justice’ is a flexible concept uniquely tailored to the facts of each case.”
Cory, 468 F.3d at 1232. Our Circuit has elaborated on the ends of justice idea embraced by
RICO, explaining:
RICO was intended as a means to eradicate organized crime. That purpose is not
furthered by withholding nationwide service of process whenever all of
the RICO defendants could be haled into one court for a single trial. While the
district court’s construction of the “ends of justice” might promote judicial
economy, it might also mean that some RICO violations would go unpunished
3
The Supreme Court defines principal place of business as “the place where a corporation’s officers
direct, control, and coordinate the corporation’s activities.” Hertz Corp. v. Friend, 559 U.S. 77, 92–93
(2010).
21
whenever organized criminals operate within the same locale and cause harm in a
distant state. Insulating such a criminal enterprise from liability, when, for instance,
the victim is unable to finance long-distance litigation, is not consistent
with RICO’s purpose.
Id. (citation omitted).
The court finds that the ends of justice are satisfied by the court exercising personal
jurisdiction over defendant Mr. Jenkins. The defendant organizations reside in Kansas. The
ends of justice require that the leader of those organizations—Royal Jenkins—be haled into court
in the locale where he established those organizations. The ends of justice also require that
defendant Mr. Jenkins be brought to justice in one of the states where he harmed plaintiff.
Kansas is the best location because the other defendants are residents of the state.
Also, to the court’s knowledge, Mr. Jenkins is the only defendant with any contacts in
Arizona. And the court is unaware of any harm inflicted by the defendants on plaintiff while in
Arizona. On balance, the facts pertinent to Mr. Jenkins convince the court that exercising
personal jurisdiction in Kansas will serve the ends of justice.
C.
Liability
In the following subsections, the court analyzes defendants’ liability under the various
theories plaintiff alleges. The court concludes that the well-pleaded facts in the Complaint and
plaintiff’s testimony at the February 2, 2018 hearing establish defendants’ liability for all
plaintiff’s allegations. And defendants’ various violations entitle plaintiff to recover damages
and attorneys’ fees. The court discusses these two topics in their own sections following its
liability analysis.
1.
Under the TVPRA (Counts I and II)
Plaintiff’s Complaint alleges two violations of the TVPRA—forced labor and human
trafficking.
22
a.
Forced Labor
The well-pleaded facts alleged by the Complaint and corroborated by plaintiff’s
testimony at the February 2, 2018 hearing establish a violation of the TVPRA for forced labor.
Defendants violated both subsections (a) and (b) of § 1589 of the TVPRA.
To prevail on a claim under § 1589(a), a plaintiff must establish that the defendant
knowingly acquired plaintiff’s labor by means and/or threats of: (1) force and physical restraint;
(2) serious harm, including psychological and financial harm; (3) abuse of the legal process; or
(4) a scheme intended to cause the plaintiff to believe that if she did not perform the labor or
services, she would suffer serious harm. See 18 U.S.C. § 1589(a); see also Aguilera v. Aegis
Commc’ns Grp., LLC, 72 F. Supp. 3d 975, 977–78 (W.D. Mo. 2014); United States v. Sabhnani,
539 F. Supp. 2d 617, 629 (E.D.N.Y. 2008), aff’d, 599 F.3d 215 (2d Cir. 2010).
When assessing whether harm is sufficiently “serious” to satisfy the TVPRA, “the
vulnerabilities and characteristics of the specific victim become extremely important because one
individual could be impervious to some types of coercion that cause another to acquiesce in
providing forced labor.” David v. Signal Int’l, LLC, No. 08-1220, 2012 WL 10759668, at *19–
20 (E.D. La. Jan. 4, 2012). For this reason, it is “irrelevant” whether a trafficking victim actually
“had the opportunity to escape.” Ramos v. Hoyle, No. 08-21809-CIV, 2008 WL 5381821, at *5
(S.D. Fla. Dec. 19, 2008). Instead, the relevant inquiry is whether the defendant “intentionally
cause[d] the oppressed person reasonably to believe, given her special vulnerabilities, that she
ha[d] no alternative but to remain in involuntary service for a time.” United States v. Alzanki, 54
F.3d 994, 1000 (1st Cir. 1995) (internal quotation marks omitted).
Here, defendants violated § 1589(a) by forcing plaintiff to work in UNOI businesses and
homes without pay beginning at age 11. Defendants’ intimidation tactics led plaintiff to believe
23
that serious harm would come to her if she left the “safety” of UNOI. Defendants subjected
plaintiff to humiliating and degrading treatment and obstructed her communications with her
friends and family. They subjected plaintiff to physical and emotional abuse and controlled her
living situations by forcibly moving her around the United States. Defendants denied plaintiff
basic creature comforts, causing her to become severely malnourished. And she never could
seek any health insurance or medical care outside of UNOI. Similarly, defendants prohibited
plaintiff from receiving any education other than UNOI’s education system after the age of 15.
This system expounded teachings that elevated black men above all others—men and women of
other races, alike. Defendants controlled plaintiff’s romantic relationships and even the language
she could use. And defendants maintained a strict discipline system that imposed serious
punishment and public humiliation for even minor infractions. Defendants exploited plaintiff’s
vulnerability, knowing that she was unfamiliar with the world outside the cult, had received no
standard education, was constantly moved from place to place, and had no money. Plaintiff’s
allegations and testimony have demonstrated that defendants’ actions were intended to cause her
to believe that if she did not continue to work for them, she would suffer serious harm.
Her allegations also have established a violation of § 1589(b). Defendants are liable
under § 1589(b) because they knowingly benefited by receiving something of value—namely
plaintiff’s forced labor for no compensation. See 18 U.S.C. § 1589(b). Defendants’ knowledge
is established by the fact that they trafficked individuals, including plaintiff, who were not paid
any wages for the work they performed in businesses and homes owned by defendants.
Defendants also controlled plaintiff’s purchases, confining her to specific groceries and other
items. They forced her to surrender her EBT Card (food stamps from the federal government) to
UNOI leaders and confiscated plaintiff’s food subsidy issued to her by the government.
24
For these reasons, plaintiff’s allegations establish that defendant violated both
subsections (a) and (b) of § 1589 of the TVPRA and so, the court grants plaintiff default
judgment on her TVPRA forced labor claim under Count I.
b.
Human Trafficking
Plaintiff’s alleged facts and testimony also establish a trafficking claim under § 1590 of
the TVPRA. Section 1590 makes it unlawful knowingly to recruit, harbor, transport, provide, or
obtain by any means, any person for labor or services under conditions which violate any
peonage, slavery, and trafficking offenses in Chapter 77 of Title 18.
Here, defendants recruited plaintiff for UNOI membership. Then, they harbored her in
UNOI homes where they forced her to perform childcare, cooking, and cleaning services without
pay for most of her childhood. During that time, defendants transported plaintiff around the
country against her will so she could supply forced labor. The court concludes that defendants
trafficked plaintiff for forced labor and thus grants plaintiff default judgment on her TVPRA
human trafficking claim under Count II. Defendants’ TVPRA violations entitle plaintiff to
compensatory damages for restitution and emotional distress, punitive damages, and attorneys’
fees.
2.
Under State Human Trafficking Laws (Counts III, V, VII, and X)
The well-pleaded facts in plaintiff’s Complaint also establish human trafficking
violations under Kansas, New York, New Jersey, and Ohio laws.
In Kansas, Kan. Stat. Ann. § 60-5003 establishes a civil course of action for victims of
human trafficking, as defined by Kan. Stat. Ann. § 21-5426. The definition of human trafficking
and aggravated human trafficking in Kan. Stat. Ann. § 21-5426 largely tracks the definition of
the federal statute. Compare Kan. Stat. Ann. § 21-5426 with 18 U.S.C. §§ 1589, 1590. A
survivor of human trafficking can use this state law civil remedy if she has suffered—as plaintiff
25
here has—personal or psychological injury because of the conduct. See Kan. Stat. Ann. § 605003.
Here, the Complaint’s facts—corroborated by the plaintiff’s testimony—establish that
defendants violated Kan. Stat. Ann. § 21-5426. They intentionally recruited, harbored, and
obtained plaintiff for labor and services while she was based in Kansas City, Kansas. They used
force, fraud, and coercion against plaintiff.
In New York, N.Y. Soc. Servs. Law § 483-bb(c) provides a civil action for victims of
labor trafficking, as defined by N.Y. Penal Law § 135.35. The definition of human trafficking in
§ 135.35 tracks the definition used by the federal statute. Compare N.Y. Penal Law § 135.35
with 18 U.S.C. §§ 1589, 1590. Trafficking survivors can utilize the New York state civil remedy
against their “perpetrator or whoever knowingly advances or profits from, or whoever should
have known he or she was advancing or profiting from” labor trafficking in violation of N.Y.
Penal Law § 135.35. See N.Y. Soc. Servs. Law § 483-bb(c).
Here, defendants violated N.Y. Soc. Servs. Law § 483-bb(c) by requiring plaintiff to
perform labor to repay or service a real or purported debt that defendants caused by a systematic
ongoing course of conduct with an intent to defraud plaintiff. Defendants also violated N.Y.
Soc. Servs. Law § 483-bb(c) by engaging in a scheme to compel plaintiff to engage in labor by
instilling fear that if plaintiff did not comply, she would face physical injury and “hatred,
contempt or ridicule.”
In New Jersey, N.J. Stat. Ann. § 2C:13-8.1 provides a civil action for victims of human
trafficking, as defined by N.J. Stat. Ann. § 2C:13-8(1)(a). The definition of human trafficking in
this provision follows the definition in the federal statute. Compare N.J. Stat. Ann. § 2C:13-8
with 18 U.S.C. §§ 1589, 1590. A human trafficking survivor can use the New Jersey civil
26
remedy against the traffickers and co-actors if she suffered personal or psychological injury
because of the conduct.
Here, defendants violated N.J. Stat. Ann. § 2C:13-8.1 by enticing and transporting
plaintiff to engage in labor by fraud, deceit, and misrepresentation, and by receiving something
of value—plaintiff’s labor—by participating in a scheme or course of conduct that comprised
labor trafficking.
In Ohio, Ohio Rev. Code Ann. § 2307.51 creates a private right of action for victims of
trafficking for “harm that resulted from the violation of section 2905.32 of the Revised Code.”
See Ohio Rev. Code Ann. § 2307.51(A). Ohio Rev. Code § 2905.32, in turn, makes it unlawful
to “knowingly recruit, lure, entice, harbor, transport, provide, obtain or maintain” or knowingly
attempt any of those actions where “[t]he offender knows that the other person will be subjected
to involuntary servitude[.]” To establish a claim under Ohio Rev. Code Ann. § 2905.32(A)(1),
“the element ‘compelled’ does not require that the compulsion be openly displayed or physically
exerted. The element ‘compelled’ has been established if the state proves that the victim’s will
was overcome by force, fear, duress, intimidation, or fraud.” See Ohio Rev. Code Ann. §
2905.32(B).
Here, plaintiff established a violation of Ohio Rev. Code Ann. § 2307.51. In 2009, UNOI
forcibly transported plaintiff from New Jersey to Ohio to work at a Jenkins family home and a
UNOI restaurant. UNOI then harbored plaintiff in Dayton, Ohio, first in a group home, then at a
home owned by the Jenkins family, and finally with a UNOI couple. During her time in Dayton,
Ohio, plaintiff was forced into involuntary servitude, working in the UNOI restaurant and as a
maid for UNOI, all without pay. Defendants’ violation of Ohio Rev. Code Ann. § 2905.32(A)(1)
harmed plaintiff in the form of lost wages for work performed and emotional distress.
27
In sum, plaintiff has established violations of Kansas, New York, New Jersey, and Ohio
human trafficking laws and so, the court grants her default judgment on these claims in Counts
III, V, VII and X. Defendants’ violations of these state laws entitle plaintiff to recover
compensatory and punitive damages as well as attorneys’ fees. See Kan. Stat. Ann. § 60-5003;
N.Y. Soc. Servs. Law § 483-bb(c); N.J. Stat. Ann. § 2C:13-8.1; Ohio Rev. Code Ann. §
2905.32(B).
3.
Under the FLSA (Count XII)
Next, plaintiff has established an FLSA violation. The FLSA requires employers to pay
employees minimum wage. See 29 U.S.C. § 206(a), (f) (establishing a minimum wage of $7.25
for employees engaged in commerce and domestic services). The FLSA also provides that
employees working more than 40 hours a week must receive overtime compensation in an
amount one and one-half times the employee’s regular rate. See 29 U.S.C. § 207(a). Employers
are required to make, keep, and preserve specific employment-related records, including records
of their employees and their wages, hours, and other conditions and practices of employment.
See 29 U.S.C. § 211(c).
A plaintiff may establish the total hours worked under the FLSA by a reasonable estimate
of hours worked and compensation received, particularly where the employer failed to maintain
employee records. See Robinson v. Food Serv. of Belton, Inc., 415 F. Supp. 2d 1232, 1235 (D.
Kan. 2005) (“[I]n FLSA cases where the employer’s time records are inaccurate or incomplete,
an employee’s burden is met ‘if he proves that he has in fact performed work for which he was
improperly compensated and if he produces sufficient evidence to show the amount and extent of
that work as a matter of just and reasonable inference.’”) (quoting Anderson v. Mount Clemens
Pottery Co., 328 U.S. 680, 687 (1946)).
28
Here, defendants failed to pay plaintiff the required compensation for her work, in both
the various bakeries and restaurants where she worked and also her domestic service work in
UNOI residences. This omission violated § 206(a) and (f) of the FLSA. Also, defendants have
violated § 207 of the FLSA by failing to pay plaintiff the applicable overtime wages for every
compensable hour of labor worked in excess of 40 hours per week. In addition to these failures,
defendants also failed to keep employment records.
The Complaint alleges these failures with sufficient certainty. Plaintiff’s allegations also
sufficiently establish the total hours she worked. For these reasons, the court concludes that
plaintiff has established that defendants violated the FLSA and grants her default judgment on
this claim under Count XII. Defendants’ violation entitles plaintiff to recover liquidated
damages. See 29 U.S.C. § 216(b). The FLSA also entitles a prevailing plaintiff to recover “a
reasonable attorney’s fee . . . and costs of the action.” See, e.g., Gray v. Phillips Petroleum
Co., 971 F.2d 591, 593 (10th Cir. 1992) (quoting 29 U.S.C. § 216(b)).
4.
Under State Minimum Wage Laws (Counts IV, VI, IX, and XI)
Next, the facts alleged by plaintiff’s Complaint establish minimum wage law violations
under Kansas, New York, New Jersey, and Ohio laws.
In Kansas, Kan. Stat. Ann. § 44-1211(a) provides a private right of action for an
employee against her employer if the employer failed to pay “less than the wages and overtime
compensation to which such employee [was] entitled.” Kan. Stat. Ann. § 44-1211(a). An
agreement between the employee and the employer to work for less than the minimum wage is
“no defense to [an] action.” Id. Here, plaintiff has shown that defendants violated the Kansas
Minimum Wage and Overtime Law. Defendants never paid plaintiff for any of her work,
including her overtime. For these reasons, plaintiff has demonstrated that defendants violated
Kansas’s Minimum Wage and Overtime Law.
29
In New York, N.Y. Labor Code § 663(1) provides a private right of action for an
employee against her employer if the employer paid her less than the wages she was entitled to
receive. Plaintiff has shown that she was defendants’ employee—she worked in businesses
owned and operated by defendants in New York for several months in 2009. And, plaintiff has
established, defendants didn’t pay her for any of the hours she worked as a cook at their New
York restaurant. Thus, plaintiff has established a violation of N.Y. Labor Code § 663(1).
The New Jersey State Wage and Hour Law (“NJWHL”), N.J.S.A. 34:11-56 et seq.,
provides a private right of action for an employee against her employer if the employer paid her
less than the wages she was entitled to receive. See N.J. Stat. Ann. §34.11-56a25. Plaintiff has
shown that she was an employee of defendants in New Jersey for several months in 2009.
Plaintiff also has shown that she was not paid for any of her work she performed as a maid and
house cook in UNOI homes there. For these reasons, plaintiff has demonstrated a violation of
N.J. Stat. Ann. § 34.11-56a25.
The Ohio Minimum Fair Wage Standards Act (“OMFWSA”) “requires all employers to
pay a minimum wage and overtime to certain types of employees.” See Ohio Const. Art. II, Sec.
34a (establishing minimum wage); see also Ohio Rev. Code Ann. §§ 4111.02 (duty to pay
minimum wage); 4111.03 (duty to pay overtime). The overtime standard in Ohio requires
employers to pay overtime “at a wage rate of one and one-half times the employee’s wage rate
for hours worked in excess of forty hours in one workweek.” Ohio Rev. Code Ann. §
4111.03(A). An agreement between the employee and the employer to work for less than the
overtime wage “is no defense.” See id.
Here, plaintiff has established a violation of Ohio state labor laws. Plaintiff worked at a
UNOI restaurant in Ohio, and as a maid in the Jenkins household there, generally working six
30
days a week beginning at 6:00 a.m. and ending as late as 11:00 p.m. Defendants did not provide
plaintiff any compensation for the services plaintiff performed while living in Ohio. For these
reasons, plaintiff has established violations of OMFWSA and the Ohio Constitution, Article II,
Section 34a.
In sum, plaintiff has established that defendants violated Kansas, New York, New Jersey,
and Ohio minimum wage laws and so, the court grants plaintiff default judgment on her claims
for these violations under Counts IV, VI, IX, and XI.
Defendants’ violation of each state’s minimum wage law entitles plaintiff to recover
damages and attorneys’ fees. See Kan. Stat. Ann. § 44-1211(a); N.Y. Lab. Law § 663(1); N.J.
Stat. Ann. §34.11-56a25; Ohio Const. Art. II, Sec. 34a; Ohio Rev. Code Ann. § 4111.10(A).
5.
Under RICO (Count XIII)
Plaintiff’s factual allegations also establish liability and damages under the RICO Act.
“Any person injured in his business or property by [a RICO activity] may sue therefor in any
appropriate United States district court and shall recover threefold the damages he sustains and
the cost of the suit, including a reasonable attorney’s fee.” 18 U.S.C. § 1964. The elements of a
civil RICO claim are: “(1) investment in, control of, or conduct of (2) an enterprise (3) through a
pattern (4) of racketeering activity.” Tal v. Hogan, 453 F.3d 1244, 1261–62 (10th Cir. 2006)
(citing 18 U.S.C. § 1962(a), (b), & (c)).
Racketeering activity is defined in 18 U.S.C. § 1961(1)(B) as any act which is
indictable under federal law and specifically includes mail fraud, wire fraud and
racketeering. These underlying acts are referred to as predicate acts, because they
form the basis for liability under RICO. [A] person does not have to be formally
convicted of any predicate act before liability under 18 U.S.C. § 1962[ ] may attach.
Id. (internal quotations and citations omitted); Magnifico v. Villanueva, 783 F. Supp. 2d 1217,
1229 (S.D. Fla. 2011) (identifying human trafficking and forced labor as predicate acts under
31
RICO); Nunag-Tanedo v. E. Baton Rouge Par. Sch. Bd., 790 F. Supp. 2d 1134, 1148 (C.D. Cal.
2011) (“Plaintiffs have stated valid claims for forced labor [and] human trafficking . . . and these
claims may also serve as underlying predicate acts for Plaintiffs’ RICO claim.”).
Here, defendants trafficked plaintiff from the age of 11 through age 21 and forced her to
perform labor and services without compensation. Plaintiff thus has standing to sue under 18
U.S.C. § 1964(c). Also, defendants continuously conducted an ongoing enterprise engaged in
the pattern and practice of human trafficking and forced labor, violations of 18 U.S.C. §§ 1589,
1590 and 1595. Defendants repeatedly committed RICO predicate acts constituting a pattern of
racketeering activity by engaging in human trafficking and forced labor since at least 1978. See
id. In the commission of this racketeering activity, defendants regularly moved goods and
people across state lines, engaging in interstate commerce. See id. Plaintiff has established the
required elements for a RICO violation, and so the court thus grants plaintiff’s request for a
default judgment on her RICO claim in Count XIII. Defendants’ RICO violation entitles
plaintiff to recover trebled damages and attorneys’ fees.
6.
Kansas State Law Claims
Finally, plaintiff’s allegations establish defendants’ violations of Kansas state law for
conversion, unjust enrichment, and intentional infliction of emotional distress.
a.
Liability for Conversion (Count XIV)
“Conversion is the unauthorized assumption or exercise of a right of ownership over
goods or personal chattels belonging to another to the exclusion of the other’s rights.” Indep.
Drug Wholesalers Grp., Inc. v. Denton, No. 92-2164-JWL, 1993 WL 191393, at *6 (D. Kan.
May 13, 1993) (internal quotations and citation omitted). Here, defendants converted plaintiff’s
government-issued food stamps and subsidies by improperly exercising a right of ownership over
32
them. Plaintiff did not authorize this exercise of rights over government-issued subsidies she
properly owned. Defendants’ wrongful exercise of ownership over plaintiff’s subsidies
prohibited her from exercising her own rights over them. Plaintiff has established the required
elements for conversion. The court thus enters default judgment on Count XIV for conversion.
This conclusion entitles plaintiff to damages.
b.
Liability for Unjust Enrichment (Count XV)
Plaintiff also has alleged facts establishing an unjust enrichment claim. An unjust
enrichment claim consists of three elements: “(1) a benefit conferred upon the defendant by the
plaintiff; (2) an appreciation or knowledge of the benefit by the defendant; and (3) the
acceptance or retention by the defendant of the benefit under such circumstances as to make it
inequitable for the defendant to retain the benefit without payment of its value.” Regal Ware,
Inc. v. Vita Craft Corp., 653 F. Supp. 2d 1146, 1151 (D. Kan. 2006).
Here, plaintiff conferred a benefit on defendants by working in bakeries, factories, and
UNOI homes, where she cooked, cleaned, and cared for children without any compensation.
Defendants were aware of the benefits conferred by plaintiff’s labor and services. Defendants’
awareness is established by their widespread and continuous employment of trafficked laborers,
including plaintiff, who are not paid any compensation for work performed in businesses and
homes owned by them. Defendants retained the benefit of all of plaintiff’s various labor services
without compensating her. Plaintiff has established the required substantive elements for unjust
enrichment. The court enters default judgment on plaintiff’s claim for unjust enrichment in
Count XV. Plaintiff thus is entitled to recover damages for defendants’ unjust enrichment.
33
c.
Liability for Intentional and Negligent Infliction of Emotional
Distress (Counts XVI and XVII)
Finally, plaintiff has alleged facts establishing intentional infliction of emotional distress.
“In Kansas, the tort of outrage is the same as the tort of intentional infliction of emotional
distress.” Valadez v. Emmis Commc’ns, 229 P.3d 389, 394 (Kan. 2010). To prevail on “a claim
for intentional infliction of emotional distress, a plaintiff must prove four elements:” (1) the
defendants’ conduct “was intentional or in reckless disregard of the plaintiff; (2) the conduct was
extreme and outrageous;” (3) “a causal connection between the defendant[]s[’] conduct and the
plaintiff’s mental distress;” and (4) “the plaintiff’s mental distress was extreme and severe.” Id.
“It is only where the distress is ‘extreme’ or ‘severe’ that liability arises.” Id. at 395.
In Valadez, the Kansas Supreme Court held:
Liability for extreme emotional distress has two threshold requirements which must
be met and which the court must, in the first instance, determine: (1) Whether the
defendant’s conduct may reasonably be regarded as so extreme and outrageous as
to permit recovery; and (2) whether the emotional distress suffered by plaintiff is
in such extreme degree the law must intervene because the distress inflicted is so
severe that no reasonable person should be expected to endure it.
Id. at 394.
First, defendants’ conduct here unmistakably was intentional—or, at least—in reckless
disregard of plaintiff’s status as a free citizen of the United States. Defendants directed a
regimented cult that forced plaintiff into forced labor through systemic and continued
intimidation and psychological abuse. They deliberately developed doctrinal and disciplinary
programs to facilitate human trafficking. And, they forced individuals—plaintiff included—to
work without any pay, breaks, or benefits. Specifically, defendants forced plaintiff to work
without pay or other compensation beginning at the age of nine. They also removed her from
public school at age 11 and forced her to attend a UNOI-run school from which they later
removed her. After the age of 15, defendants refused to permit plaintiff to attend any school.
34
Defendants separated plaintiff from her mother and forced her to live in a women’s
household at the age of 12. They only fed her rice, beans, fruit, and salad, causing her to become
malnourished. And defendants prohibited her from seeing a licensed doctor or seeking medical
attention for her malnourishment.
Defendants frequently and forcibly moved plaintiff across the country. Defendants
transferred plaintiff from one city to another in the back of a commercial delivery truck.
Throughout her entire servitude with defendants, plaintiff was subjected to verbal and physical
abuse, and express and implied threats of force and harm. She was intentionally isolated from
her family, and was forced into an arranged marriage with a polygamy practicing member of
UNOI. Defendants’ conduct toward plaintiff was intentional.
Second, defendants’ conduct was extreme and outrageous. See Roberts v. Saylor, 637
P.2d 1175, 1179 (Kan. 1981) (“[T]he defendant[]s[’] conduct must be found to be so extreme
and outrageous as to permit recovery.”). Defendants’ conduct was more than “criticism, rough
language, and occasional acts and words that are inconsiderate and unkind[]” and “goes beyond
the bounds of decency and is utterly intolerable in a civilized society.” Taiwo v. Vu, 822 P.2d
1024, 1029 (Kan. 1991).
Third, there is a causal connection between defendants’ conduct and plaintiff’s mental
distress. Plaintiff suffers from long lasting psychological pain and has been diagnosed
with post-traumatic stress disorder as a direct result from defendants’ conduct. Her licensed
clinical social worker testified that plaintiff would not have suffered from such pain and distress
but for such conduct.
Fourth, plaintiff’s mental distress was extreme and severe. See Taiwo, 822 P.2d at 1029
(“[P]laintiff’s mental distress must be extreme and severe.”); Restatement (Second) of Torts §
35
46, comment. j (1976) (“Severe distress must be proved; but in many cases the extreme and
outrageous character of the defendant[]s[’] conduct is in itself important evidence that the
distress has existed.”). Her emotional distress “is so severe that no reasonable person should be
expected to endure it.” Roberts, 637 P.2d at 1179. In sum, defendants stole plaintiff’s childhood
and left her underdeveloped to find her own way once she became an adult. Further, plaintiff’s
pain and distress is long lasting. She has undergone medical treatment and psychological
counseling and has been diagnosed with post-traumatic stress disorder. To this day, defendants’
actions continue to affect her ability to lead a fulfilling life.
For these reasons, plaintiff alleges facts establishing a claim of intentional infliction of
emotional distress. The court grants default judgment on this claim. Plaintiff is entitled to
recover damages for her emotional distress under Count XVI. 4
D.
Damages
Defendants’ various violations—as described above—entitle plaintiff to recover a variety
of damages. The following six subsections evaluate and decide plaintiff’s requests for damages.
1.
Compensatory Damages for Restitution
Defendants’ violations entitle plaintiff to recover restitution damages under multiple
theories, i.e., the TVPRA, state human trafficking laws, state minimum wage laws, and for unjust
enrichment. But permitting plaintiff to recover the same bundle of damages more than once
under various overlapping legal theories would permit multiple recoveries. This, of course, is
impermissible. See Mason v. Okla. Tpk. Auth., 115 F.3d 1442, 1459 (10th Cir. 1997), overruled
on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th
Cir. 2011) (“If a federal claim and a state claim arise from the same operative facts, and seek
4
Because plaintiff establishes intentional infliction of emotional distress, the court does not address her
negligent infliction of emotional distress claim.
36
identical relief, an award of damages under both theories will constitute double recovery.”). The
court concludes that these theories of recovery all arise from the same operative facts and so,
plaintiff may recover this bundle of damages just once.
a.
TVPRA Restitution
Plaintiff has established that she is entitled to recover restitution damages under the
TVPRA at the prevailing wage rate. A victim of human trafficking and forced labor may recover
damages under 18 U.S.C. § 1595(a). In addition to this civil remedy, § 1593 authorizes
mandatory restitution for human trafficking victims. Id. § 1593(a). Under § 1593, victims are
guaranteed compensation for the value of their services at the minimum wage under the FLSA.
But plaintiff argues that nothing in § 1595 limits her civil recovery to minimum wage. Indeed,
the Tenth Circuit has condoned compensation in trafficking cases based on the prevailing wage
rate. See Francisco v. Susano, 525 F. App’x 828, 835 (10th Cir. 2013) (“[T]here is nothing
inappropriate in requiring those who have engaged in or benefited from forced labor to rectify
the wrong by compensating the victim at the prevailing wage rate for the work done.”). The
Circuit reasoned: “Limiting [TVPRA] victims to the FLSA remedy would inappropriately
afford criminals engaged in such egregious practices the benefit of the lowest commondenominator minimum wage set for legitimate employers.” Id. (emphasis in original). Here,
plaintiff has established the prevailing wage rate for the locations of her forced labor at the time
she performed the services. Doc. 24-2 at 12–47 (citing U.S. Department of Labor statistics that
show the prevailing wage rate at the locations she worked).
There is no reason to deny plaintiff compensation for the services she provided at the
same rates received by others who voluntarily provided those same services. The court thus
concludes that plaintiff is entitled to recover compensatory damages for restitution at the
37
prevailing wage rate. Based on the prevailing wage rate for each service in each location and the
number of hours plaintiff performed those services, the court finds that plaintiff is entitled to
recover $453,517.20 in restitution damages under Count I and II’s claims under the TVPRA.
b.
State Law Restitution
Plaintiff also is entitled to recover restitution damages under Kansas, New York, New
Jersey, and Ohio human trafficking laws. See Kan. Stat. Ann. § 60-5003; N.Y. Soc. Servs. Law
§ 483-bb(c); N.J. Stat. Ann. § 2C:13-8.1; Ohio Rev. Code Ann. § 2905.32(B). The court was
unable to locate any case authority applying the Kansas, New York, and Ohio statutes to
determine whether those laws permit plaintiff to recover restitution damages at the prevailing
wage rate or, instead, at the minimum wage rate. New Jersey, in contrast, explicitly authorizes
use of the prevailing wage rate. See N.J. Stat. Ann. § 2C:13-8.1(c)(2) (authorizing the
calculation of “the value of the injured party’s labor or services as determined by the ‘New
Jersey Prevailing Wage Act’”). Nothing suggests the other three states intended to limit
plaintiff’s recovery to the minimum wage rate. To the contrary, the rationale expressed in
Francisco favors awards at the prevailing rate. The court thus concludes plaintiff is entitled to
recover restitution damages at the prevailing wage rate under all four states’ statutes. Plaintiff
asserts—for the jobs she performed in the various state where she performed them—that she is
entitled to recover $220,568.40 under Kansas law (Count III), $14,579.50 under New York law
(Count V), $14,220.18 under New Jersey law (Count VII), and $183,055.08 under Ohio law
(Count X). See Doc. 24-1 at 1. The court agrees and awards her these amounts in restitution
damages under these state laws.
Defendants’ violations of Kansas, New York, New Jersey, and Ohio minimum wage laws
also entitle plaintiff to recover damages. See Kan. Stat. Ann. § 44-1211(a); N.Y. Lab. Law §
38
663(1); N.J. Stat. Ann. §34.11-56a25; Ohio Const. Art. II, Sec. 34a; Ohio Rev. Code Ann. §
4111.10(A). Plaintiff is entitled to recover $57,600.40 in damages for work she performed in
Kansas (Count IV), $7,064.20 for work performed in New York (Count VI), $7,064.20 for work
performed in New Jersey (Count IX), and $99,645 for work performed in Ohio (Count XI). And
so, the court awards her these amounts on these claims.
Finally, plaintiff’s services in defendants’ Kansas-based factories, bakeries, and homes
unjustly enriched defendants (Count XV). The court already has determined the value of
plaintiff’s services in Kansas was $220,568.40. The court thus awards plaintiff this amount as
compensation on Count XV’s unjust enrichment claim.
While plaintiff undoubtedly deserves to recover restitution damages under a variety of
legal theories, she cannot recover multiple times for the same services. Think of it this way:
Plaintiff deserves to recover restitution damages of $453,517.20 under the TVPRA. This award
is derived from defendants having forced plaintiff to perform various services for a decade
between age 11 and age 21. The TVPRA claim produced an award of $453,517.20. But it is
equally true that other sources of law entitle plaintiff to recover restitution for smaller increments
of time falling within the same ten years covered by her TVPRA claim. While varied legal
theories entitle plaintiff to recover these damages, plaintiff cannot recover multiple times for
providing the same services. See, e.g., Mason, 115 F.3d at 1459 (“If a federal claim and
a state claim arise from the same operative facts, and seek identical relief, an award
of damages under both theories will constitute double recovery.”).
The TVPRA covers the entire span of compensable restitution, and it thus produces the
greatest recovery for plaintiff. The court already has decided that plaintiff may recover a total of
$453,517.20 for restitution damages on Counts I and II. She may recover the other incremental
39
awards of restitution damages on her state law trafficking claims (Counts III, V, VII, and X),
minimum wage law claims (Counts IV, VI, IX, and XI) and unjust enrichment claim (Count XV)
only if some later proceeding would nullify the court’s award of restitution damages under the
TVPRA.
2.
Compensatory Damages for Emotional Distress
Plaintiff also has established that she is entitled to recover compensatory damages for
emotional distress that defendants inflicted on her under multiple theories. Like plaintiff’s
theories to recover restitution damages, these theories of recovery for emotional distress
damages, all arise from the same operative facts and so, plaintiff may recover this bundle of
damages just once. See Mason, 115 F.3d at 1459 (“If a federal claim and a state claim arise from
the same operative facts, and seek identical relief, an award of damages under both theories will
constitute double recovery.”).
a. TVPRA Emotional Distress Damages
The TVPRA permits trafficking victims to recover compensatory damages for emotional
distress. See Doe v. Howard, No. 1:11-CV-1105, 2012 WL 3834867, at *2 (E.D. Va. Sept. 4,
2012) (citing Shukla v. Sharma, No. 07-CV-2972 CBA CLP, 2012 WL 481796, at *14
(E.D.N.Y. Feb. 14, 2012)). Courts have reasoned that an additional award of emotional distress
damages is necessary to “redress noneconomic harm, particularly suffering related to the squalid,
restricted, and threatening working/living conditions imposed on [TVPRA] victims.” Francisco,
525 F. App’x at 835.
When determining such damages, courts look to “all relevant circumstances . . . including
sex, age, condition in life and any other fact indicating susceptibility of the injured person to
[the] type of harm.” Mazengo v. Mzengi, No. 07-756 RMC AK, 2007 WL 8026882, at *7
40
(D.D.C. Dec. 20, 2007) (citation omitted); see also Doe, 2012 WL 3834867, at *4 (considering
false promises regarding salary, health insurance, vacation time, and a safe environment to work
when calculating forced labor damages). A victim may recover multiple emotional distress
awards for different TVPRA violations. See Shukla, 2012 WL 481796, at *14 (awarding
separate damages for forced labor and trafficking, separating damages from services and
transporting).
Courts have awarded damages for emotional distress to trafficking victims subjected to
forced labor in amounts ranging from $415 to $780 per day. See, e.g., Gurung v. Malhotra, 851
F. Supp. 2d 583 (S.D.N.Y. 2012) (awarding $415 per day to a victim forced to work 16 hours per
day, seven days a week, for 40 months as a maid); Shukla, 2012 WL 481796, at *8–9 (awarding
$780 a day to a victim forced to work 17 hours per day for three and a half years); Doe, 2012
WL 38348767, at *3–4 (awarding $500 a day to a victim forced to work 80–90 hours per week
and confined in defendants’ home for three months).
Here, defendants’ conduct caused plaintiff to fear them and the reprisals they would take
against her if she left. They yelled at her, and generally humiliated, shamed, and embarrassed
her on a regular basis. Defendants subjected plaintiff to grueling work days without days off.
Plaintiff was subjected to this treatment from the time she was 11 to age 21. She was young,
vulnerable, and alone during this 10-year period. Plaintiff continues to suffer the effects of her
emotional distress today.
Plaintiff asks the court to award her $800 per day for the emotional distress she suffered.
This amount exceeds the emotional distress rate used in Shukla, but just barely. This increase is
a minor one and the facts here establish that plaintiff deserves $800 per day. Two factors stand
out to the court—the length of the emotional distress and plaintiff’s age. Plaintiff is claiming
41
emotional distress sustained, unabated, for 10 years. Defendants subjected plaintiff to emotional
distress for twice as long as the victim in Shukla. Moreover, the victim in Shukla was an adult
man, while plaintiff was an adolescent girl during the vast majority of her mistreatment. The
court concludes plaintiff is entitled to recover emotional distress damages equal to $800 per day.
Plaintiff was subjected to this distress for 10 years (3,650 days). So, the court awards plaintiff
$2,920,000 for emotional distress damages under the TVPRA under Counts I and II.
b.
State Law Emotional Distress Damages
Plaintiff also asks the court to award emotional distress damages under Kansas, New
York, New Jersey, and Ohio human trafficking laws. The court already has determined plaintiff
is entitled to recover emotional distress damages equal to $800 per day. Concluding that this rate
applies also to her state law emotional distress claims, the court finds that plaintiff deserves
$1,200,000 under Kansas law (Count III), $65,000 under New York law (Count V), $65,000
under New Jersey law (Count VII), and $815,000 under Ohio law (Count X). The court awards
her these amounts in emotional distress damages under these states’ human trafficking laws.
Finally, plaintiff is entitled to recover emotional distress damages under Count XVI, her
claim for defendants’ intentional infliction of emotional distress under Kansas law. The court’s
previous calculations establish that plaintiff is entitled to recover $1,200,000 for this tortious
conduct. And so the court awards her this amount for defendants’ intentional infliction of
emotional distress.
As with her restitution damages, plaintiff is entitled to recover emotional distress
damages under the various anti-trafficking laws and Kansas tort law, but she may recover these
damages just once. See Mason, 115 F.3d at 1459 (“If a federal claim and a state claim arise from
the same operative facts, and seek identical relief, an award of damages under both theories will
42
constitute double recovery.”). Plaintiff deserves to recover emotional distress damages of
$2,920,000 under the TVPRA. Again, these damages are derived from the 10 years that
defendants inflicted emotional distress on her. And the damage amounts under other theories
cover smaller periods of time within those 10 years. Since an award under the TVPRA produces
the greatest recovery to plaintiff, the court concludes that plaintiff may recover $2,920,000 for
emotional distress damages under Counts I and II. She may recover the other emotional distress
awards recognized in this subsection—state human trafficking laws (Counts III, V, VII, and X)
and intentional infliction of emotional distress (Count XVI)—only if some later proceeding
would nullify the court’s award under the TVPRA.
3.
Punitive Damages
Also, plaintiff has persuaded the court that she is entitled to recover punitive damages.
Like the previous two damages subsections, plaintiff deserves to recover punitive damages under
the TVPRA and state human trafficking laws.
Punitive damages are generally available for federal claims where defendant acts with
“evil motive or intent,” or with “reckless or callous indifference” to federally protected rights.
See Smith v. Wade, 461 U.S. 30, 56 (1983). The punitive damages inquiry focuses on the
character of the tortfeasor’s conduct. That is, whether it was of the sort that calls for deterrence
and punishment over and above that provided by compensatory awards. See F.D.I.C. v.
Hamilton, 122 F.3d 854, 860 (10th Cir. 1997).
“Punitive damages are generally appropriate under the [TVPRA] civil remedy provision
because [the TVPRA] creates a cause of action for tortious conduct that is ordinarily intentional
and outrageous.” Ditullio v. Boehm, 662 F.3d 1091, 1098 (9th Cir. 2011). In other words,
because “the wrong done by [a] violation of the [TVPRA]” is one that involves “significant
43
violations not only of labor standards but fundamental health and personal rights as well,” an
award of punitive damages in a TVPRA case is generally consistent with “the traditional use of
punitive damages . . . to punish and deter conduct involving an element of outrage.” Francisco,
525 F. App’x at 834–35. Significant punitive damages are warranted, notwithstanding the
inclusion of FLSA liquidated damages in TVPRA compensatory damages awards, because the
FLSA “simply remedies the failure to pay wages at the statutory minimum [w]age.” Id. at 835.
By contrast, “[t]he forced labor addressed by the TVPRA is a categorically different wrong,
involving work extracted from victims by the illegal and coercive means specified in the statute.”
Id.
Indeed, courts have recognized that trafficking is a particularly depraved act and so, they
have awarded significant punitive damages for TVPRA violations. See Doe, 2012 WL 3834867,
at *4–5 (awarding punitive damages of $2 million under the TVPRA for forced labor, forced
sexual servitude, and trafficking); Gurung, 851 F. Supp. 2d 583, 595 (S.D.N.Y. 2012) (awarding
$300,000 in punitive damages for a victim forced to work as a maid for 16 hours per day, seven
days a week for forty months).
Here, with reckless disregard for plaintiff’s health and safety, defendants intentionally
and maliciously trafficked and forced her to work in their residences and businesses for
excessive hours—all with no pay or other benefits. Defendants flagrantly violated the laws of
the United States, and trafficked other men, women, and children as well. The court thus
concludes that punitive damages are necessary to punish defendants and deter them and others
from trafficking their fellow human beings.
Plaintiff requests $5,000,000 in punitive damages. The Supreme Court has identified
three factors that guide a punitive damages award: “(1) the degree of reprehensibility of the
44
tortious conduct; (2) the ratio of punitive damages to compensatory damages; and (3) the
difference between this remedy and the civil penalties authorized or imposed in comparable
cases.” Shukla, 2012 WL 481796, at *15 (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
575 (1996)).
The first and third factors tend to be equal for TVPRA violators, so the second factor—
the ratio of punitive damages to compensatory damages—has become the focus for punitive
damages award in TVPRA cases. There is an increasing trend to award punitive damages equal
to the total compensatory damages award. See Lipenga v. Kambalame, 219 F. Supp. 3d 517, 532
(D. Md. 2016) (awarding equal compensatory and punitive damages); Lagasan v. Al-Ghasel, 92
F. Supp. 3d 445, 458 (E.D. Va. 2015) (same); Carazani v. Zegarra, 972 F. Supp. 2d 1, 27
(D.D.C. 2013) (same); Shukla, 2012 WL 481796, at *16 (reducing a jury’s punitive damage
award to an amount equal to the compensatory damages award); Canal v. Dann, No. 09–03366
CW, 2010 WL 3491136, at *4 (N.D. Cal. Sept. 2, 2010) (awarding equal compensatory and
punitive damages).
Here, the court has awarded plaintiff $3,373,517.20 in compensatory damages. The court
concludes punitive damages in an equal amount are appropriate. The court thus awards plaintiff
$3,373,517.20 in punitive damages under Count I and II’s claims under the TVPRA.
Plaintiff also seeks an award of punitive damages under Kansas, New York, New Jersey,
and Ohio human trafficking laws. Similar to its award under the TVPRA, the court awards
plaintiff punitive damages equal to the compensatory damages award under each state law.
Applying this concept, the court makes the following punitive damages awards: $1,420,568.40
under Kansas law (Count III); $79,579.50 under New York law (Count V); $79,220.18 under
New Jersey law (Count VII); and $998,055.08 under Ohio Law (Count X).
45
But the court uses the same logic it followed for restitution and emotional distress
damages. Because plaintiff may not recover multiple punitive damages awards for the same
body of reprehensible conduct, see Mason, 115 F.3d at 1459, and because the TVPRA produces
the greatest recovery to plaintiff, the court finds that plaintiff may recover $3,373,517.20 in
punitive damages under that act. If any subsequent proceeding should nullify this award of
punitive damages under the TVPRA, the court may need to reexamine whether the other punitive
damages awards are sufficient to serve the purposes of punitive damages.
4.
Liquidated Damages
Plaintiff also deserves to recover liquidated damages under the FLSA. Employers who
violate FLSA §§ 206 and 207 are liable to employees for liquidated damages in an amount
equaling the unpaid minimum wages and unpaid overtime compensation. See 29 U.S.C. §
216(b). Plaintiff’s unpaid minimum wages equal $282,677.50. See Doc. 24-1. She is entitled to
recover this amount as liquidated damages under Count XII’s claim under the FLSA, and the
court awards it to her. But, the court already has awarded plaintiff restitution damages equal to
the market value of her work. So if she recovered liquidated damages for unpaid minimum
wages it would duplicate the restitution award. As a result, plaintiff may not recover unpaid
minimum wages as liquidated damages.
In addition to unpaid minimum wages, courts have awarded trafficking victims unpaid
overtime compensation equal to the amount of unpaid minimum wages. See Sabhnani, 599 F.3d
at 254–55 (finding the district court calculated unpaid minimum wages and then doubled it to
compensate the victims for both minimum wages and overtime compensation). Although
plaintiff cannot recover unpaid minimum wages a second time, she deserves to recover overtime
compensation under the FLSA in addition to the court’s restitution award for unpaid wages. The
46
court has calculated plaintiff’s unpaid minimum wages as $282,677.50 and she is entitled to
recover this same amount for unpaid overtime compensation. See id. The court thus awards
plaintiff $282,677.50 as liquidated damages on Count XII’s claim for unpaid overtime
compensation under the FLSA.
5.
Trebled RICO Damages
Also, plaintiff asks for an award of treble damages under Count XIII’s RICO claim.
“RICO provides a private civil action to recover treble damages for injury sustained by reason of
a violation of its substantive provisions.” Burdett v. Harrah’s Kan. Casino Corp., 260 F. Supp.
2d 1109, 1120 (D. Kan. 2003); see Smith v. Heim, No. 85-1970-K, 1986 WL 15397, at *2 (D.
Kan. Apr. 15, 1986) (“Congress created a private cause of action with treble damages and award
of attorney fees to any prevailing plaintiff ‘injured in [her] business or property by reason of a
violation of Section 1962 of this chapter.’” (quoting 18 U.S.C. § 1964)).
Here, plaintiff has established that she sustained an injury because of defendants’
violation of the substantive provisions of the RICO Act. The court has awarded plaintiff
$453,517.20 in restitution damages. Trebling that amount results in $1,360,551.60 and the court
awards plaintiff this trebled amount under RICO. But because she cannot recover restitution
damages more than once, plaintiff only may recover two-thirds of the trebled amount.
Accounting for the $453,517.20 already awarded as restitution damages, the court awards
plaintiff $907,034.40 for the non-duplicative, trebled value of her restitution damages under the
RICO Act.
6.
Conversion Damages
Finally, plaintiff asserts she is entitled to damages for conversion of her food stamp
benefits and subsidies (Count XIV). She alleges that defendants converted her food stamp
47
benefits and subsidies in the amount of $150 per month for at least one year, totaling at least
$1,800. The court thus finds that plaintiff is entitled to recover conversion damages in the
amount of $1,800.
E.
Attorneys’ Fees
Last, plaintiff asks the court to award her attorneys’ fees. Our local rules require, “A
party who moves for statutory attorney’s fees pursuant to Fed. R. Civ. P. 54(d)(2) must promptly
initiate consultation with the other party or parties.” D. Kan. Rule 54.2(a). When the parties are
unable to agree on a fee award, “the moving party must file the following within 30 days of
filing the motion: (1) a statement that, after consultation in accordance with this rule, the parties
have been unable to reach an agreement with regard to the fee award; and (2) a memorandum
setting forth the factual basis for each criterion that the court is asked to consider in making an
award.” D. Kan. Rule 54.2(c). This court previously has excused a plaintiff from the meet and
confer requirement when the defendant had defaulted and failed to appear in the lawsuit.
Townley v. Servicemaster Co., LLC, No. 17-2430-DDC-JPO, 2017 WL 5517948, at *1 (D. Kan.
Nov. 17, 2017).
Here, defendant Royall Jenkins has filed a pro se “Motion for Writ of Certiorari.” Since
he filed that motion, the Clerk has attempted to mail a notice of a hearing to Mr. Jenkins at the
address he supplied to the court. But that notice was returned by the United States Postal Service
and marked, “unable to forward.” See Doc. 27. And, none of the defendant business
organizations has appeared. For these reasons, the court concludes it would be futile to require
plaintiff to engage in the meet and confer process adopted by our local rule. She is excused from
this requirement.
48
Plaintiff asks the court to award her attorneys’ fees and costs of $216,080.84. As already
noted, the TVPRA, FLSA, RICO, and the Kansas, New Jersey, New York, and Ohio human
trafficking and minimum wage state law claims entitle the prevailing party to recover attorneys’
fees. For purposes of attorneys’ fees, plaintiff is considered a prevailing party if she succeeded
on “any significant issue in litigation which achieves some of the benefit [she] sought in bringing
suit.” Gambrell v. Weber Carpet, Inc., No. CIV.A. 10-2131-KHV, 2012 WL 162403, at *2 (D.
Kan. Jan. 19, 2012). Plaintiff is a prevailing party because the court is entering a default
judgment on her TVPRA, FLSA, RICO, and Kansas, New Jersey, New York, and Ohio human
trafficking and minimum wage state law claims. This entitles her to recover reasonable
attorneys’ fees.
Here, plaintiff’s counsel is representing her on a pro bono basis. Our circuit has allowed
recovery of attorneys’ fees and costs when plaintiff was represented on a pro bono basis or by a
publicly-funded legal aid clinic. See Martinez v. Roscoe, 100 F.3d 121, 124 (10th Cir. 1996)
(upholding award of attorneys’ fees when a publicly-funded legal aid program provided
services); see also Blanchard v. Bergeron, 489 U.S. 87, 94 (1989) (“[W]here there are lawyers or
organizations that will take a plaintiff’s case without compensation, that fact does not bar the
award of a reasonable fee.”); Heng Chan v. Sung Yue Tung Corp., No. 03 CIV. 6048 (GEL),
2007 WL 1373118, at *2 (S.D.N.Y. May 8, 2007) (awarding attorneys’ fees under 29 U.S.C. §
216(b) to a law firm handling the case pro bono); Lainez v. Baltazar, No. 5:11-CV-00167-BR,
2013 WL 3288369, at *2 (E.D.N.C. June 28, 2013) (awarding attorneys’ fees under 18 U.S.C. §
1595(a) to Legal Aid of North Carolina).
The court now must determine if plaintiff’s fee request is reasonable. The Tenth Circuit
has instructed that “[t]he most useful starting point for determining the amount of a reasonable
49
fee is the number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Flitton, 614 F.3d at 1176 (first citing Hensley, 461 U.S. at 433; then quoting
Robinson, 160 F.3d at 1281 (“[A] court must begin by calculating the so-called ‘lodestar amount’
of a fee, . . . [which] is the product of the number of attorney hours ‘reasonably expended’ and a
‘reasonable hourly rate.’”)). The party requesting attorneys’ fees bears the burden to prove the
number of hours spent on the case and the appropriate hourly rates. United Phosphorus, Ltd. v.
Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000). Once an applicant satisfies this
burden, the court presumes that the lodestar figure is a reasonable fee. Robinson, 160 F.3d at
1281.
After determining the lodestar amount, the court may adjust that figure upward or
downward “‘to account for the particularities of the suit and its outcome.’” Fox v. Pittsburg
State Univ., 258 F. Supp. 3d 1243, 1254 (D. Kan. 2017) (quoting Zinna v. Congrove, 680 F.3d
1236, 1242 (10th Cir. 2012)). This approach requires consideration of the factors set out in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other
grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989). Those factors are: (1) time and labor
required; (2) novelty and difficulty of the questions presented in the case; (3) skill requisite to
perform the legal service properly; (4) preclusion of other employment by the attorneys due to
acceptance of the case; (5) customary fee; (6) whether the fee is fixed or contingent; (7) any time
limitations imposed by the client or circumstances; (8) amount involved and results obtained; (9)
experience, reputation, and ability of the attorneys; (10) undesirability of the case; (11) nature
and length of the professional relationship with the client; and (12) awards in similar cases. Id.
at 717–19.
50
Although the court may consider each factor, it need not consider those factors
“‘subsumed within the initial calculation of hours reasonably expended at a reasonable hourly
rate.’” Fox, 258 F. Supp. 3d at 1254 (quoting Mathiason v. Aquinas Home Health Care, Inc.,
187 F. Supp. 3d 1269, 1281 (D. Kan. 2016)). This is so because “[t]he lodestar calculation is
meant to be the primary consideration when awarding fees rather than the Johnson factors.” Id.
(citing Anchondo v. Anderson, Crenshaw & Assocs., LLC, 616 F.3d 1098, 1103 (10th Cir.
2010)).
To support her fee request here, plaintiff has submitted her counsel’s billing records.
Doc. 34-1. But plaintiff’s counsel did not provide information about their experience, reputation,
or ability. By conducting its own research, the court has determined the approximate experience
of most of the attorneys who worked on this case.5 The court has consolidated the attorneys’
experience level, their hourly rate, and the hours they billed in this litigation in the table below.
Jonathan Blank
22 years
Hourly
Rate
2017
$830.00
Cristin Traylor
17 years
$745.00
17.8
$745.00
6.7
$18,252.50
Meghan Cloud
13 years
N/A
N/A
$590.00
7.3
$4,307.00
Phillip Chang
10 years
$675.00
5.6
$695.00
6.9
$8,575.50
Gillian Chadwick
8 years
$200.00
14.9
$200.00
8.8
$4,740.00
Lauren Mahaffey
5 years
$495.00
14.7
$525.00
14.1
$14,679.00
Christopher
McEachran
5 years
$495.00
41.9
N/A
N/A
$20,740.50
Attorney
Experience
Hours
Billed
2017
6.6
5
Hourly
Rate
2018
$865.00
Hours
Billed
2018
9.7
Total Fee
$13,868.50
The court reviewed McGuireWoods LLP’s webpage (http://www.mcquirewoods.com). And, using
the “Professionals” tab, the court searched for each attorney.
51
Katlyn Farrell
5 years
Hourly
Rate
2017
$395.00
Elizabeth Hutson
4 years
$430.00
133
$495.00
55.2
$84,514.00
Kayla Marshall
3 years
$385.00
12.2
$475.00
3.1
$6,169.50
Brian Wanglin
< 3 years6
N/A
N/A
$405.00
13.2
$5,346.00
130.8
$193,540.50
Attorney
Experience
Hours
Billed
2017
24.8
Totals
Hourly
Rate
2018
$440.00
271.5
Hours
Billed
2018
5.8
Total Fee
$12,348.00
Plaintiff’s request also includes work conducted by paralegals and legal assistants. That
work is consolidated in the following table.
Chelsea Mason
Hourly
Rate
2017
N/A
Hours
Billed
2017
N/A
Bonnie Powell
$295.00
36.6
$295.00
2.9
$11,652.50
Cynthia Smith
$230.00
3.8
$230.00
1.2
$1,150.00
Maha Saad
$220.00
7.6
$255.00
8.6
$3,865.00
$90.00
2.2
N/A
N/A
$198.00
13.7
$17,115.50
Paralegal/Legal Assistant
Debi Schrock
Totals
50.2
Hourly
Hours
Rate
Billed
2018
2018
$250.00
1
Total Fee
$250.00
Initially, the court had some reservations about the number of timekeepers seeking fee
recovery—11 attorneys and five paralegals. A paying client might infer that this array manifests
inefficiency. But the important words in that sentence are these three: a paying client.
Plaintiff’s counsel here didn’t have such a client and they nonetheless volunteered to accept this
6
The court’s research did not permit it to determine Mr. Wanglin’s experience level. But comparing
his hourly rate to the rates of other attorneys, the court infers that Mr. Wanglin’s experience level is less
than three years.
52
difficult representation. In a professional environment where the bottom line often is the bottom
line, the court declines to draw negative inferences about counsel who accept a significant pro
bono assignment. Moreover, this case is more complex than most pro bono cases. Its geography
spanned four states, and implicated each one’s laws and three separate federal acts. In these
unusual circumstances, the court concludes that numerosity concerns do not impair the fee
award.
This takes the analysis to the hourly rates used by plaintiff’s fee request. To determine
whether the requested hourly rates are reasonable, the court must “determine what lawyers of
comparable skill and experience practicing in the area in which the litigation occurs would
charge for their time.” Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1256 (10th Cir. 1998)
(quoting Ramos, 713 F.2d at 555); Barbosa, 2015 WL 4920292, at *9. “The court should
scrutinize [paralegals and legal assistants’] hours and the suggested rates in the same manner it
scrutinizes lawyer time and rates.” Case, 157 F.3d at 1255 (quoting Ramos, 713 F.2d at 559).
And, the court “should base its hourly rate award on what the evidence shows the market
commands for . . . analogous litigation.” Id. (citing Beard v. Teska, 31 F.3d 942, 955–57 (10th
Cir. 1994), abrogated on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t
of Health & Human Servs., 532 U.S. 598 (2001)).
Except for Ms. Chadwick, the court finds that the rates requested by plaintiff are higher
than the billing rates commonly applied in Kansas. See, e.g, Fox, 258 F. Supp. 3d at 1271
(Robinson, J.) (finding hourly rates of $400 and $375 reasonable for attorneys with 17 and 15
years of experience in a Title VII and Title IX case); Barbosa v. Nat’l Beef Packing Co., LLC,
No. 12-2311-KHV, 2015 WL 4920292, at *10 (D. Kan. Aug. 18, 2015) (Vratil, J.) (finding
hourly rates ranging from $180 to $425 reasonable, depending on each attorneys’ level of
53
experience, in an FLSA case); Seamands v. Sears Holding Corp., No. 09-2054-JWL, 2011 WL
884391, at *14–16 (D. Kan. Mar. 11, 2011) (Lungstrum, J.) (finding the following hourly rates
reasonable in a class action lawsuit for unpaid sales incentive compensation: $400 per hour for a
lawyer with more than 30 years’ experience, $290 per hour for lawyers with more than 20 years’
experience, $270 for a partner with 11 years’ experience, and $175 for associates with “lesser
experience”). Plaintiff provides the court with no basis to justify rates that exceed the norm for
attorneys in the Kansas market. And so, the court must reduce the attorneys’ billing rates to a
reasonable level. Based on past rates for comparable experience and similar—but not
identical—work, with some consideration for inflation, the court concludes the following rates
are reasonable for the sophisticated work required by this case: (1) $225 for the attorneys with
four years (or fewer) experience; (2) $250 for the attorneys with five years of experience; (3)
$200 for Gillian Chadwick; (4) $300 for Philip Chang; (5) $335 for Meghan Cloud; (6) $440 for
Cristin Traylor; and (7) $475 for Jonathan Blank.
The court also must reduce the paralegals’ rates to conform them to the local market.
Except for Ms. Schrock, the requested paralegal and legal assistant rates also are higher than
those typically charged in this area. The court is unable to discern the precise titles of Ms.
Mason, Ms. Powell, Ms. Smith, Ms. Saad, and Ms. Schrock. Plaintiff’s submission lumps them
together as “paralegal/legal assistant.” The only distinguishing factor is their rate—Ms. Schrock
billed at a rate of $90 per hour while all the others billed over $200 per hour. The court infers
that Ms. Schrock is a legal assistant while Ms. Mason, Ms. Powell, Ms. Smith, and Ms. Saad are
paralegals.
In 2017, our court found that $100 per hour was a reasonable rate for a legal assistant.
Bailes v. Lineage Logistics, LLC, No. 15-2457-DDC-TJJ, 2017 WL 4758927, at *8 (D. Kan. Oct.
54
20, 2017). The court finds that no adjustment is necessary for Ms. Schrock’s rate. But the
paralegals’ rates exceed the norm for Kansas. In 2016, our court found that $125 per hour was a
reasonable rate for a paralegal. Mathiason v. Aquinas Home Health Care, Inc., 187 F. Supp. 3d
1269, 1281 (D. Kan. 2016); see also Barbosa, 2015 WL 4920292, at *10 (reducing Kansas City
paralegals’ hourly rate from $100 per hour to $75 per hour). The court believes it is appropriate
to adjust to accommodate inflation. The inflation rate for both 2016 and 2017 was 2.1%.
Kimberly Amadeo, U.S. Inflation Rate by Year: 1929–2020, The Balance (updated Jan. 15,
2018), https://www.thebalance.com/u-s-inflation-rate-history-by-year-and-forecast-3306093.
The court thus finds that a reasonable paralegal rate is $130.
Based on the analysis above, the court concludes that the correct lodestar calculation is
summarized in the table below.
Name
Total Hours Billed
Hourly Rate
Fee
Jonathan Blank
16.3
$475.00
$7,742.50
Cristin Traylor
24.5
$440.00
$10,780.00
Meghan Cloud
7.3
$335.00
$2,445.50
Phillip Chang
12.5
$300.00
$3,750.00
Gillian Chadwick
23.7
$200.00
$4,740.00
Lauren Mahaffey
28.8
$250.00
$7,200.00
Christopher
McEachran
Katlyn Farrell
41.9
$250.00
$10,475.00
30.6
$250.00
$7,650.00
Elizabeth Hutson
188.2
$225.00
$42,345.00
Kayla Marshall
15.3
$225.00
$3,442.50
Brian Wanglin
13.2
$225.00
$2,970.00
55
Name
Total Hours Billed
Hourly Rate
Fee
Chelsea Mason
1
$130.00
$130.00
Bonnie Powell
39.5
$130.00
$5,135.00
Cynthia Smith
5
$130.00
$650.00
Maha Saad
16.2
$130.00
$2,106.00
Debi Schrock
2.2
$90.00
$198.00
Lodestar Amount
$111,759.50
Next, the court turns to the Johnson factors. See Fox, 258 F. Supp. 3d at 1254 (“Once the
court determines the lodestar, it must then determine whether any upward or downward
adjustments should be made to the lodestar to account for the particularities of the suit and its
outcome [by considering the Johnson Factors].” (internal quotation marks and citation omitted)).
Most of the factors are subsumed within the lodestar calculation. Pennsylvania v. Del. Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 563 (1986) (citing Blum v. Stenson, 465 U.S. 886,
898–901 (1984)). Although the factors not subsumed can justify an upward departure from the
lodestar amount, such modifications are reserved for “rare” and “exceptional” circumstances. Id.
(quoting Blum v. Stenson, 465 U.S. 886 at 899).
None of the Johnson factors present an exceptional reason to depart from the lodestar
amount. The court thus finds that the lodestar amount is a reasonable one. Accordingly, the
court grants plaintiff’s Motion for Attorneys’ Fees and awards plaintiff $111,759.50 in attorneys’
fees.
Plaintiff’s motion also requests $5,424.84 in costs. The court has reviewed the costs and
finds that they are reasonable, all incurred during litigation of this case. The court thus awards
plaintiff $5,424.84 to compensate plaintiff’s counsel’s their reasonable costs.
56
V.
Conclusion
The court grants plaintiff default judgment on all her claims. The court also awards
plaintiff $453,517.20 for restitution damages, $2,920,000 for emotional distress damages,
$3,373,517.20 for punitive damages, $282,677.50 for liquidated damages, $907,034.40 for
trebled RICO damages, and $1,800 for conversion damages. Finally, the court awards plaintiff
$117,184.34 for reasonable attorneys’ fees and costs.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Motion for
Default Judgment under Fed. R. Civ. P. 55(b)(2) (Doc. 23) is granted.
IT IS FURTHER ORDERED THAT judgment be entered in favor of plaintiff against
defendants in the amount of $453,517.20 for restitution damages, $2,920,000 for emotional
distress damages, $3,373,517.20 for punitive damages, $282,677.50 for liquidated damages,
$907,034.40 for trebled RICO damages, and $1,800 for conversion damages.
IT IS FURTHER ORDERED THAT plaintiff’s Motion for Attorneys’ Fees (Doc. 34)
is granted. The court awards plaintiff $117,184.34 for reasonable attorneys’ fees and costs.
IT IS SO ORDERED.
Dated this 23rd day of May, 2018, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
57
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