Case Information
‐ ‐ cv v. Grandeur Management, Inc. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term
Submitted: May Decided: July Docket No. ‐ ‐ cv
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NOEL P. ADIA,
Plaintiff ‐ Appellant, GRANDEUR MANAGEMENT, INC., RAJA I. YOUNAS,
Defendants Appellees.
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Before: NEWMAN, JACOBS, DRONEY, Circuit Judges.
Appeal judgment District Southern York (Robert W. Sweet, District Judge) dismissing ‐ appellant Noel P. complaint against appellees Management, Raja I. Younas, alleging human *2 trafficking violation of Trafficking Victims Protection Act (“TVPA”), U.S.C. §§ 1589, 1590, 1595, and Alien Tort Statute, U.S.C. § 1350, and for unpaid overtime under Article New York Labor Law. appeal taken only dismissal claims for forced labor and human trafficking.
Because stated for forced labor human TVPA, we vacate Court’s judgment part remand further proceedings.
Felix Q. Vinluan, Law Office Felix Vinluan, Woodside, NY Plaintiff Appellant Noel
P. Adia.
Nolan Klein, Law Offices Nolan Klein, P.A., York, NY Defendants Appellees Management, Raja I.
Younas.
JON O. NEWMAN, Circuit Judge: issue this appeal whether provision Trafficking Victims
Protection Act (“TVPA”) creating civil remedy, violating criminal provisions prohibiting human trafficking, id §§ applies immigrant lawfully county temporary guest worker *3 visa alleging employers threatened revoke their sponsorship, thereby subjecting him deportation. This issue arises an appeal Noel P. judgment District Court Southern District York (Robert W. Sweet, District Judge) dismissing, Fed. R. Civ. P. 12(b)(6), amended complaint against ‐ appellees Management, (“Grandeur”) and Raja I. (collectively “the defendants”).
We conclude pled violations TVPA. complaint alleges employers recruited work them, told him rely them, represented they were ensuring remain lawfully this country, warned they cancel their left them gave them trouble. We reverse dismissal allegations remand further proceedings.
Background
Alleged facts. original amended complaints allege following facts, assumed true purposes appeal. See Walker Schult (2d Plaintiff appellant Filipino citizen who lawfully entered temporary guest worker with H 2B visa. *4 Defendant ‐ appellee a provider hotel and resort services; Defendant ‐ appellee Younas manager Grandeur. In early September Younas offered Adia H ‐ 2B transfer as a housekeeping attendant in South Carolina. Adia had been engaged in similar employment in South Dakota he accepted Younas’s offer. When Adia arrived South Carolina, defendants informed him there was no work at that time. defendants assured him a job would arise, and presented apparent proof form a Citizenship Immigration Services (“USCIS”) notice they had filed extension his H 2B status their sponsorship.
In March Younas instructed Adia coordinate with cleaning services company York, which led employment as housekeeping attendant, later doorman, Manhattan hotels. defendants paid Adia through affiliated entities, monitored employment. Although regularly worked more than hours week, did pay extra overtime.
In October told Younas had applied change H 2B status B1/B2, sent USCIS notice acknowledging receipt application. promised ensure *5 lawfully remain country, and asked Adia return promise not look other employment.
Younas told Adia his immigration status depended his “continuing reliance” defendants, and “[d]efendants would cancel withdraw his immigration sponsorship if he left them” would “difficult them regarding his work.” Adia feared defendants cancel his immigration terminate employment he complained about not receiving overtime pay.
In February Adia asked Younas about filing H 1B sponsorship. told had not filed H 1B petition and had been unlawfully working staying country some time because did have valid immigration status.
Procedural history. filed complaint alleging causes action human under Alien Tort Statute (“ATS”), well as unpaid overtime York Labor Law. filed motion dismiss pursuant Rules 12(b)(2) 12(b)(6). denied Rule 12(b)(2) motion, but granted Rule 12(b)(6) motion. See Management, No. Civ. (RWS), WL (S.D.N.Y. Sept. Court dismissed the TVPA claims against Grandeur, ruling that the Act does impose liability on corporate defendants. As to the claims against Younas, the Court ruled the forced labor claim failed because it was based on “subjective feeling,” id *3, rather than on threats; the human claim was ruled insufficient because already the country was recruited the allegations merely restated claim. Court dismissed the ATS because failed to allege facts reasonably construed violation law nations. Finally, declined to exercise supplemental jurisdiction over state law overtime pay claim.
Discussion
Pleading standard. To survive Rule 12(b)(6) motion dismiss, plaintiff must plead “enough facts state claim relief is plausible its face.” Bell Atlantic Corp. v. Twombly U.S. (2007). A claim is plausible “when pleads factual content allows court draw reasonable inference defendant is liable misconduct alleged.” Ashcroft Iqbal U.S. (2009) (internal citation omitted). Determining whether plausible “a context specific task requires reviewing court draw *7 its judicial experience common sense.” Id. (internal citation omitted). To keep the plausibility standard perspective, we do well keep mind just two weeks after deciding Twombly the Supreme Court, reversing Rule 12(b)(6) dismissal of complaint, stated, “Federal Rule of Civil Procedure 8(a)(2) requires only short plain statement of the claim showing the pleader entitled relief. Specific facts are not necessary; statement need only give the defendant fair notice of what grounds upon which it rests.” Erickson Pardus U.S. (2007) (internal quotation marks omitted). labor claim. A person violates or she:
knowingly provides or obtains labor or services of person by any one of, or by any combination of, following means— . . .
(3) by means abuse or threatened abuse of law or legal process; or
(4) by means scheme, plan, or pattern intended cause person believe that, person did perform such services, person another person suffer serious harm physical restraint . . .
U.S.C. § 1589(a). victim of a section 1589(a) criminal violation a civil remedy.
An individual who a victim of a violation of chapter may bring civil action against perpetrator . . . in appropriate district court of may recover damages reasonable attorney[’]s fees. § 1595(a). contends threatening to alter immigration status, abused or threatened abuse of law or legal process in violation of
subsection 1589(a)(3), caused to believe suffer serious harm deportation means scheme or plan in violation of subsection 1589(a)(4). “[A]buse or threatened abuse law or legal process” means “the use or threatened use law or legal process . . . in manner or any purpose which law designed, order to exert pressure another person cause person to take some action or refrain taking some action.” Id. at § 1589(c)(1). “[S]erious harm” means “any harm, whether physical or nonphysical, including psychological, financial, reputational harm, sufficiently serious . . compel reasonable person same background same circumstances perform continue performing services order avoid incurring harm.” Id. 1589(c)(2).
The Supreme Court, considering similar statute prohibiting involuntary servitude, 18 1584, has stated “threatening . . an immigrant with deportation constitute threat of legal coercion.” United States v. Kozminski, U.S. 931, (1988). Tenth Circuit stated threats of deportation can constitute “serious harm” subsection 1589(c)(2). United States v. Kalu , F.3d (10th Cir. 2015). amended complaint explicitly alleges Younas told
“[d]efendants would cancel withdraw immigration sponsorship if left them would difficult them regarding work.” In context of Adia’s circumstances, defendants’ alleged threat cancel their sponsorship constitutes abuse legal process purposes of subsection 1589(a)(3). See, e.g. , v. Calimlim , (7th
When said withdraw their visa stopped working them gave them trouble, statement, viewed light surrounding circumstances, plausibly supports inference entitled regard it threat expose deportation. See, e.g. Aguirre Best Care Agency, F. Supp. 2d 460–61 (E.D.N.Y. 2013), constituted abuse legal process. *10 See, e.g. , Calimlim , F.3d 713. has plausibly pled a claim forced labor under subsection 1589(a)(3).
For same reasons, has plausibly stated a claim relief under subsection 1589(a)(4). defendants’ threat they would withdraw be understood scheme to convince him he harmed deportation left or asked overtime pay. threatened with serious harm—removal country due to loss legal status. They did so while engaging in scheme whose purpose make rely them remaining country legally, to force accept less than prevailing wage rate based threat facing deportation, similarly forestall any effort seek other employment. Adia’s subsection 1589(a)(4) claim also withstands motion dismiss. See, e.g. , Dann (9th stated viable labor subsections 1589(a)(3) (a)(4). A person violates
she “knowingly recruits, harbors, transports, provides, obtains any means, person services violation of” statutes prohibiting, inter alia *11 forced labor, is guilty trafficking. 1590(a). Section 1595 provides civil remedy for victims violations statute as well. alleges when he was working in South Dakota, recruited
him to come work by saying he sponsor his H ‐ 2B transfer application. This allegation distinct from the forced allegations. defendants recruited promising transfer sponsor H 2B visa, then forced work less than he was owed threatening revoke sponsorship. Section employs disjunctive “or” delineating ways in which defendant can violate statute. Therefore, if defendant violates section also violates section he recruited person perform forced labor. As alleged labor, has also plausibly alleged based allegation related recruitment.
It does not matter, thought, already present United States recruited him. There no requirement either sections victims be brought into, recruited outside, United States. Indeed, statutes do even require victims foreign born. See, e.g. Callahan (6th has alleged under section 1590.
Corporate liability. Finally, we note that, as the concede, the District Court erroneously ruled Grandeur, as corporate defendant, not be liable the TVPA.
Conclusion judgment District Court vacated part. Because abandoned ATS appeal, they need considered, see Tiffany
(NJ) v. eBay Inc. , (2d We vacate portion judgment appealed from, dismissing plaintiff’s claims, case remanded further proceedings, including exercise supplemental jurisdiction.
[1] Although deportable alien “removed,” 1227(a), we will use “deportation,” term used parties.
[2] context Twombly was an alleged antitrust conspiracy among so called “Baby Bells,” after their divestiture American Telephone & Telegraph Company. context Iqbal allegation unconstitutional action Attorney General FBI Director.
[3] In rejecting corporate liability, mistakenly relied caselaw considering different statute, Torture Victim Protection Act, happens have same abbreviation TVPA. WL *3 (citing Mohamad Palestinian Authority U.S. (2012)).