Brojer et al v. Kuriakose et al

Filing 39

MEMORANDUM AND ORDER re: 38 Defendants' Motion to Dismiss for failure to state a claim is GRANTED IN PART and DENIED IN PART. It is GRANTED with respect to Mrs. Brojer's false imprisonment and intentional infliction of emotional distress claims and DENIED with respect to all remaining claims (See Order for further details). Counsel for the Defendants shall serve a copy of this Order on the Plaintiff in India and at the Oakdale, NY address and file proof of service within 7 days of the date of this Order. Ordered by Judge Joanna Seybert on 5/1/2013.(Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
ANNAMMA BROJER,
Plaintiff,

MEMORANDUM & ORDER
11-CV-3156(JS)(WDW)

-againstKURIAKOSE GEORGE s/h/a GEORGE
KURIAKOSE, ANN KURIAKOSE GEORGE
s/h/a ANNE KURIAKOSE, and KOCHUMON,
Defendants.
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APPEARANCES
For Plaintiff:
Annamma Brojer, pro se
Manthattathil House
Eranakulam Kalloorkad
Kerala, India 686668
For Defendants:
The Georges

Kochumon

James M. Carman, Esq.
Carman, Callahan & Ingham, LLP
226 Main Street
Farmingdale, NY 11735
No appearances.

SEYBERT, District Judge:
Pending

before

the

Court

is

Defendants

Kuriakose

George s/h/a George Kuriakose and Ann Kuriakose George s/h/a
Anne Kuriakose’s (together, the “Georges”) unopposed motion to
dismiss the Amended Complaint for failure to state a claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the
alternative, for failure to prosecute under Rule 41(b).

For the

following reasons, the Georges’ motion is GRANTED IN PART and
DENIED IN PART.

BACKGROUND
I.

Factual Background1
In or around 1996, Plaintiff Annamma Brojer, who was

then

living

in

India,

received

a

phone

call

from

a

distant

relative in the United States, Defendant Kochumon, telling her
to go to the consulate in Mumbai because she had been sponsored
for a visa to the United States.

She received her visa in

September of that year and came to the United States shortly
thereafter.
Upon arriving at Kochumon’s house in New York, Mrs.
Brojer

was

introduced

to

the

Georges.

Although

it

is

not

explicitly stated in the Amended Complaint, it appears as though
Mrs. Brojer was brought to the United States by Kochumon to work
for the Georges as a live-in nanny/domestic worker pursuant to a
contract between Kochumon and the Georges.

Upon meeting Mrs.

Brojer, the Georges “argue[d] with Kochumon” stating that “this
woman is no good[;] the children will be afraid of her.”

Mrs.

Brojer nonetheless left with the Georges, who immediately took
her passport.

They allegedly sent her to Boston for a few days,

so that, upon her return, they could tell their friends and
family that they had hired her from Boston, not India.

1

The following facts are drawn from the Amended Complaint
(Docket Entry 7) and are presumed to be true for the purposes of
this Memorandum and Order.
2

The remainder of the Amended Complaint summarizes the
conditions of Mrs. Brojer’s employment.
every

day,

cooking,

cleaning,

and

She worked all day,

caring

for

the

Brojer’s

children, yet she was only paid between $1 and $3 per day.

She

often had to sleep in the garage, which was not heated, and the
Georges

did

supervision.

not

permit

her

to

use

the

bathroom

without

They also did not allow her to use the telephone,

except on Christmas when she was permitted to call her children
in India.
his

car

Once, Mr. George drove over Mrs. Brojer’s legs with
and

did

not

seek

medical

assistance.

The

Amended

Complaint also asserts that Mrs. Brojer frequently complained of
tooth pain, but the Georges would not allow her to visit a
dentist.

On

multiple

occasions,

Mrs.

Brojer

asked

for

her

passport back, so she could visit her children in India, but the
Georges would not return her passport.
This continued through December 2002, when the Georges
told

her

passport.

that

she

was

no

longer

needed

and

returned

her

They brought her to the Indian Consulate in New York

to get an emergency passport and put her on a plane back to
India.

The Georges told her that they would mail Mrs. Brojer

her belongings, but they never did.
II.

Procedural Background
Mrs. Brojer’s husband, Michael Brojer, commenced this

action pro se on May 11, 2011 in the Southern District of New
3

York, purportedly on behalf of himself and Mrs. Brojer, and
simultaneously
pauperis.

filed

an

application

(Docket Entry 2.)

to

proceed

in

forma

The action was transferred to the

undersigned in the Eastern District of New York on June 27,
2011.

(Docket Entry 3.)

On July 20, 2011, this Court granted

Mr. Brojer’s application to proceed in forma pauperis but sua
sponte dismissed his claims pursuant to 28 U.S.C. § 1915(e) with
leave to replead.

The Court also advised Mr. Brojer that he

could not represent the interests of his wife pro se and granted
Mrs.

Brojer

sixty

days

to

either

obtain

counsel

or

file

an

amended complaint with her signature indicating her intention to
litigate this case pro se.

(Docket Entry 6.)

Mrs. Brojer filed an Amended Complaint on September 2,
2011, naming the Georges and Kochumon as defendants.
Entry 7.)

(Docket

The Amended Complaint was only signed by Mrs. Brojer;

therefore, the Court deemed Mr. Brojer’s claims abandoned and
dismissed him as a plaintiff in this action.

(Docket Entry 8.)

Mrs. Brojer subsequently applied for leave to proceed in forma
pauperis (Docket Entry 11), which was granted on November 22,
2011

(Docket

successfully

Entry
served

13).

The

U.S.

Marshal

Service

summonses

and

copies

of

the

(“USMS”)
Amended

Complaint on the Georges; however, USMS was unable to serve
Defendant Kochumon at the address provided.

4

(Docket Entries 17-

19.)
2012.

The Georges answered the Amended Complaint on February 7,
(Docket Entry 20.)
Magistrate

Judge

William

D.

Wall

held

an

initial

conference on July 19, 2012.

At Mrs. Brojer’s request, Judge

Wall

appear,

permitted

Mr.

Brojer

to

via

telephone,

on

behalf due to the fact that Mrs. Brojer resided in India.

her
Mr.

Brojer’s privilege of participating in his wife’s conferences
was later revoked by Judge Wall after he left a threatening
message on the Pro Se Office voicemail.

(Docket Entry 34.)

Another telephone conference was held on September 19, 2012,
with Mrs. Brojer representing herself.

At the conference, she

indicated that she lives in India and is unable to leave due to
visa restrictions.

Judge Wall ordered Mrs. Brojer to “obtain

counsel and/or to inform the court in writing when she will be
able

to

travel

to

(Docket Entry 35.)

this

country

to

prosecute

her

action.”

Mrs. Brojer was warned that her failure to

comply with Judge Wall’s order within ninety days would result
in Judge Wall recommending to the undersigned to dismiss her
case for failure to prosecute.

(Docket Entry 35.)

A status

conference was scheduled for December 19, 2012.
On

November

26,

2012,

Mrs.

Brojer

filed

a

letter

requesting an adjournment of the December status conference to
“mid 2013” on the grounds that, among other things, she was
awaiting a response from the American Civil Liberties Union’s
5

trafficking division regarding her request for pro bono counsel
and her husband had hired a lawyer to submit an application for
a visa for her to travel to the United States.
36.)

(Docket Entry

Judge Wall granted Mrs. Brojer’s request and adjourned the

conference to June 5, 2013.

(Docket Entry 37.)

On January 21, 2013, the Georges filed the pending
motion

to

dismiss.

(Docket

Entry

38.)

The

Court

has

not

arguments

for

received an opposition from Mrs. Brojer.
DISCUSSION
The

Court

will

address

the

Georges’

dismissal under Rules 12(b)(6) and 41(b) separately.
I.

Motion to Dismiss Under Rule 12(b)(6)
The Georges move to dismiss pursuant to Rule 12(b)(6)

for failure to state a claim upon which relief can be granted.
However, by answering, the Georges waived their right to seek
dismissal under Rule 12(b). See FED. R. CIV. P. 12(b) (“A motion
asserting any of these defenses must be made before pleading if
a responsive pleading is required.”).

Nonetheless, the Second

Circuit has held that Rule 12(b)(6) motions made after the close
of the pleadings “should be construed by the district court as a
motion for judgment on the pleadings under Rule 12(c).”

See

Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123,
126 (2d Cir. 2001).

Thus, the Court will treat the Georges’

motion as one for judgment on the pleadings.
6

A.

Standard of Review
The standard for deciding a motion pursuant to Rule

12(c)

“is

identical

to

that

failure to state a claim.”

of

a

Rule

12(b)(6)

motion

for

See id.; Irish Lesbian & Gay Org. v.

Giuliani, 143 F.3d 638, 644 (2d Cir. 1998).

In deciding Rule

12(b)(6) motions to dismiss, the Court applies a “plausibility
standard,”

which

is

guided

by

“[t]wo

working

principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)); see also
Harris

v.

Mills,

572

F.3d

66,

72

(2d

Cir.

2009).

First,

although the Court must accept all of a complaint’s allegations
as true, this “tenet” is “inapplicable to legal conclusions;”
thus,

“[t]hreadbare

action,
suffice.”

supported

recitals
by

mere

of

the

elements

conclusory

of

a

statements,

cause

of

do

not

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at

555); accord Harris, 572 F.3d at 72.

Second, only complaints

that state a “plausible claim for relief” survive a motion to
dismiss.

Id.

at

679

(citing

Twombly,

550

U.S.

at

556).

Determining whether a complaint does so is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id.; accord Harris, 572 F.3d at

72.

7

While pro se plaintiffs enjoy a somewhat more liberal
pleading standard, see Erickson v. Pardus, 551 U.S. 89, 94, 127
S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (“[A] pro se complaint,
however

inartfully

pleaded,

must

be

held

to

less

stringent

standards than formal pleadings drafted by lawyers.” (internal
quotation marks and citation omitted)), they must still comport
with the procedural and substantive rules of law, see Colo.
Capital v. Owens, 227 F.R.D. 181, 186 (E.D.N.Y. 2005).
B.

Analysis
The Georges read the Amended Complaint as asserting

New York state common law claims for false imprisonment and
intentional infliction of emotional distress and argue that such
claims must be dismissed as time-barred.

“Because the statute

of limitations is an affirmative defense, the defendant bears
the

burden

limitations
accrued.”

of

establishing

period

has

by

expired

prima
since

facie
the

proof

that

plaintiff’s

the

claims

Overall v. Estate of Klotz, 52 F.3d 398, 403 (2d Cir.

1995); see also Swift v. N.Y. Med. Coll., 25 A.D.3d 686, 687,
808

N.Y.S.2d

731,

732

(2d

Dep’t

2006).

“The

burden

then

shift[s] to the plaintiff to establish the applicability of an
exception to the statute of limitations, raise an issue of fact
as

to

the

applicability

of

any

such

exception,

or

evidence sufficient to toll the statute of limitations.”

submit
Babu

v. Consol. Edison Co. of N.Y., Inc., 72 A.D.3d 852, 853, 898
8

N.Y.S.2d 507, 507 (2d Dep’t 2010); see also Overall, 52 F.3d at
403.

Because

the

lapse

of

a

limitations

period

is

an

affirmative defense that the Georges must plead and prove, the
Court can only grant the Georges’ motion to dismiss if it is
based on facts that appear on the face of the Second Amended
Complaint.

See Staehr v. Hartford Fin. Servs. Grp., Inc., 547

F.3d 406, 425-26 (2d Cir. 2008).
The

Georges

argue

that

the

statute

of

limitations

expired in December 2003--one year after Mrs. Brojer returned to
India.

The Court agrees.

False imprisonment and intentional

infliction of emotional distress are both intentional torts that
are subject to a one-year statute of limitations in New York.
See N.Y. C.P.L.R. 215(3); see also Charnis v. Shohet, 2 A.D.3d
663, 663, 768 N.Y.S.2d 638, 639 (2d Dep’t 2003); Wilson v. Erra,
94 A.D.3d 756, 756, 942 N.Y.S.2d 127, 129 (2d Dep’t 2012).

That

one-year period commenced, at the absolute latest, in December
2002, when the Georges’ returned Mrs. Brojer’s passport and she
went back to India.
at

639

(stating

release

from

N.Y.S.2d

at

See Charnis, 2 A.D.3d at 663, 768 N.Y.S.2d

that

false

imprisonment

confinement);

Wilson,

129

that

(stating

94

claims
A.D.3d

intentional

accrue
at

756,

infliction

emotional distress claims accrue on the date of injury).

upon
942
of
As

this action was not commenced until December 2011--approximately
nine

years

after

her

false

imprisonment
9

and

intentional

infliction of emotional distress claims accrued--these claims
are clearly time-barred.
The burden then shifts to Mrs. Brojer to establish
that the limitations period should be tolled.
F.3d at 403.

See Overall, 52

Mrs. Brojer has not opposed the motion and, thus,

has failed to meet this burden.

Accordingly, to the extent that

the Georges seek dismissal of Mrs. Brojer’s false imprisonment
and intentional infliction of emotional distress claims, their
motion is GRANTED.
The Court, however, also reads the Amended Complaint
as asserting claims under New York common law for battery and
conversion, under New York’s Labor Law for unpaid wages, see
N.Y. LAB. LAW §§ 170, 190, 652, under the Thirteenth Amendment and
18 U.S.C. § 1584 for indentured servitude, see, e.g., Manliguez
v. Joseph, 226 F. Supp. 2d 377, 383 (E.D.N.Y. 2002), and under
the

Alien

Tort

Claims

Act

for

violating

international

law

prohibiting human trafficking and slavery, see, e.g., id. at
386; see also Velez v. Sanchez, 693 F.3d 308, 318-20 (2d Cir.
2012).

Thus, to the extent that the Georges seek dismissal of

the Amended Complaint in its entirety for failure to state a
claim, their motion is DENIED.2

2

Although battery and conversion are also intentional torts
subject to a one-year statute of limitations, the Court will not
sua sponte dismiss any of the remaining claims as time-barred.
See Kropelnicki v. Siegel, 290 F.3d 118, 130 n.7 (2d Cir. 2002)
10

II.

Motion to Dismiss Under Rule 41(b)
The

Georges

also

argue

that

the

Amended

Complaint

should be dismissed in its entirety under Rule 41(b) of the
Federal Rules of Civil Procedure due to Mrs. Brojer’s failure to
comply with Judge Wall’s orders.

The Court disagrees.

Rule 41(b) authorizes a district court to “dismiss a
complaint for failure to comply with a court order, treating the
noncompliance as a failure to prosecute.”

Simmons v. Abruzzo,

49

Second

F.3d

83,

cautioned,
harsh

87

(2d

however,

remedy

to

be

Cir.

that

“a

1995).
Rule

utilized

The
41(b)

only

in

Circuit

dismissal
extreme

remains

has
‘a

situations.’”

LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir.
2001) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853,
855 (2d Cir. 1972)).
Here, the Georges argue that Mrs. Brojer has failed to
comply with Judge Wall’s order to obtain counsel and/or provide
a date when she will be able to travel to the United States for
trial.

However, Mrs. Brojer obtained an extension of time to

comply with such orders through June 5, 2013 and appears to have
been diligent in her attempts to comply in a timely fashion-i.e., she reached out to the ACLU and filed a visa application.

(stating that “a district court ordinarily should not raise a
statute of limitations defense sua sponte” because it “is an
affirmative defense that is waived if not raised” (internal
quotation marks and citation omitted)).
11

Thus, she appears to be in full compliance with Judge Wall’s
directives,

and

the

Court

will

not

dismiss

for

failure

to

prosecute at this time.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that:
(1)

the

Georges’

motion

to

dismiss

for

failure

state a claim is GRANTED IN PART and DENIED IN PART.

to

It is

granted with respect to Mrs. Brojer’s false imprisonment and
intentional infliction of emotional distress claims and denied
with respect to all remaining claims.

It is further ORDERED

that:
(2)

the

Georges’

motion

to

dismiss

for

failure

to

prosecute is DENIED with leave to renew should the circumstances
warrant such an application;
(3)

Mrs. Brojer shall, within thirty (30) days of the

date of this Memorandum and Order, either: (i) provide the Court
with an updated address for Kochumon so the USMS can attempt to
effectuate service or (ii) independently serve Kochumon with the
Summons and a copy of the Amended Complaint and provide the
Court with proof of service.

If Mrs. Brojer fails to provide a

proper address or independently serve process on Kochumon within
the

time

prescribed,

the

claims

against

Kochumon

will

be

dismissed without prejudice under Rule 4(m) of the Federal Rules

12

of Civil Procedure for failure to serve process.

It is further

ORDERED that:
(4) in forma pauperis status is DENIED for the purpose
of an appeal, because any appeal from this Memorandum and Order
would not be taken in good faith, see 28 U.S.C. § 1915(a)(3);
Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917,
8 L. Ed. 2d 21 (1962); and
(5)

counsel for the Georges shall serve a copy of

this Memorandum and Order on the pro se Plaintiff in India as
well as at 307 Vanderbilt Boulevard, Oakdale, NY 11769 and file
proof of service within seven (7) days of the date of this
Memorandum and Order.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

May
1 , 2013
Central Islip, NY

13