Brojer et al v. Kuriakose et al
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
MEMORANDUM & ORDER
-againstKURIAKOSE GEORGE s/h/a GEORGE
KURIAKOSE, ANN KURIAKOSE GEORGE
s/h/a ANNE KURIAKOSE, and KOCHUMON,
Annamma Brojer, pro se
Kerala, India 686668
James M. Carman, Esq.
Carman, Callahan & Ingham, LLP
226 Main Street
Farmingdale, NY 11735
SEYBERT, District Judge:
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).
following reasons, the Georges’ motion is GRANTED IN PART and
DENIED IN PART.
In or around 1996, Plaintiff Annamma Brojer, who was
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
Upon arriving at Kochumon’s house in New York, Mrs.
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.”
Brojer nonetheless left with the Georges, who immediately took
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.
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.
The remainder of the Amended Complaint summarizes the
conditions of Mrs. Brojer’s employment.
She worked all day,
children, yet she was only paid between $1 and $3 per day.
often had to sleep in the garage, which was not heated, and the
They also did not allow her to use the telephone,
except on Christmas when she was permitted to call her children
Once, Mr. George drove over Mrs. Brojer’s legs with
Complaint also asserts that Mrs. Brojer frequently complained of
tooth pain, but the Georges would not allow her to visit a
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
They brought her to the Indian Consulate in New York
to get an emergency passport and put her on a plane back to
The Georges told her that they would mail Mrs. Brojer
her belongings, but they never did.
Mrs. Brojer’s husband, Michael Brojer, commenced this
action pro se on May 11, 2011 in the Southern District of New
York, purportedly on behalf of himself and Mrs. Brojer, and
(Docket Entry 2.)
The action was transferred to the
undersigned in the Eastern District of New York on June 27,
(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
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.
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,
Complaint on the Georges; however, USMS was unable to serve
Defendant Kochumon at the address provided.
(Docket Entries 17-
The Georges answered the Amended Complaint on February 7,
(Docket Entry 20.)
conference on July 19, 2012.
At Mrs. Brojer’s request, Judge
behalf due to the fact that Mrs. Brojer resided in India.
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
Judge Wall ordered Mrs. Brojer to “obtain
counsel and/or to inform the court in writing when she will be
(Docket Entry 35.)
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.)
conference was scheduled for December 19, 2012.
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
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.
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
received an opposition from Mrs. Brojer.
dismissal under Rules 12(b)(6) and 41(b) separately.
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).”
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.
Standard of Review
The standard for deciding a motion pursuant to Rule
failure to state a claim.”
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
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
although the Court must accept all of a complaint’s allegations
as true, this “tenet” is “inapplicable to legal conclusions;”
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
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
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,
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).
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
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,
shift[s] to the plaintiff to establish the applicability of an
exception to the statute of limitations, raise an issue of fact
evidence sufficient to toll the statute of limitations.”
v. Consol. Edison Co. of N.Y., Inc., 72 A.D.3d 852, 853, 898
N.Y.S.2d 507, 507 (2d Dep’t 2010); see also Overall, 52 F.3d at
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
See Staehr v. Hartford Fin. Servs. Grp., Inc., 547
F.3d 406, 425-26 (2d Cir. 2008).
expired in December 2003--one year after Mrs. Brojer returned to
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).
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.
See Charnis, 2 A.D.3d at 663, 768 N.Y.S.2d
emotional distress claims accrue on the date of injury).
this action was not commenced until December 2011--approximately
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
prohibiting human trafficking and slavery, see, e.g., id. at
386; see also Velez v. Sanchez, 693 F.3d 308, 318-20 (2d Cir.
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
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)
Motion to Dismiss Under Rule 41(b)
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,
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
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)).
Thus, she appears to be in full compliance with Judge Wall’s
prosecute at this time.
For the foregoing reasons, it is hereby ORDERED that:
state a claim is GRANTED IN PART and DENIED IN PART.
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
prosecute is DENIED with leave to renew should the circumstances
warrant such an application;
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
dismissed without prejudice under Rule 4(m) of the Federal Rules
of Civil Procedure for failure to serve process.
It is further
(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
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.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
1 , 2013
Central Islip, NY
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