MEMORANDUM AND ORDER
Plaintiff Urmila Lama (“Lama” or “Plaintiff’) brings this action under the Trafficking Victims Protection Reauthori-
BACKGROUND
I. Factual Background
A. Plaintiffs Complaint
The following is a summary of the facts alleged in Plaintiffs complaint: in 1991 in Nepal and India, she began working as a housekeeper for Mr. Pritam Singh, the father of Defendant Neeru Malik and Defendant Minu Singh, who are sisters. In 1992, Pritam Singh gifted Ms. Lama to the Singh Defendants as part of Ms. Singh’s dowry. See First Amended Complaint (“AC”), ¶ 12-13. From 1991 through 1996, Ms. Lama worked for thе Defendants and their families in Nepal and received room and board. She did not receive regular monetary compensation for her services, but did on occasion when she requested to be paid when she was returning home to visit with her family. AC, ¶ 14.
In 1996, Defendants obtained a visa for Plaintiff and brought her to the United States to work for them. Plaintiff arrived in the United States in September 1996. AC, ¶ 15-16. Mr. Pritam Singh filled out Plaintiffs immigration papers and maintained control of Plaintiffs passport, giving it to the Malik Defendants upon arrival in the United States. AC, ¶ 16-17. Plaintiff did not get her passport back until 2009. AC, ¶ 17.
Starting in Septеmber 1996, Plaintiff lived with and worked for all four Defendants in their home in Glen Cove, New York. Also living in the home were the minor children of the Defendants. AC, ¶ 18-19. According to the amended complaint, Plaintiff worked seven (7) days per week, with no days off, working from 7:00am until 10:00 or 11:00 pm, with three (3) short breaks for meals. AC, ¶ 20. She cooked, cleaned, did laundry, and provided childcare. AC, ¶ 21. This type of work continued for the Malik Defendants after the Singh Defendants moved out of the house in 2000. AC, ¶ 24.
Plaintiff was “isolated and dependant on” the Defendants “for virtually every aspect of her life.” AC, ¶ 28. She was not allowed the leave the house unaccompanied, and did not speak or read English. She did not know any other people in the United States other than Defendants and had only “sporadic and fleeting” contact with her family in Nepal. AC, ¶ 28-31. From 2002 through 2006, Plaintiff also assisted the Malik Defendants with their import-export business in addition to the work she performed for the household. AC, ¶ 37-39.
In 1997, Defendant Neeru Malik told Plaintiff she would be paid like other Malik Defendant employees, and on several other occasions, Defendant Shammi Malik informed Plaintiff she would be paid а certain sum for her first six years, and receive a raise after that time. AC, ¶ 48-49. On various occasions from 2002 through 2006 when Plaintiff asked about her compensation, Defendant Shammi Malik represented that he was saving her compensation for her and she did not need it immediately since she lived with them and her expenses were covered. AC, ¶ 50-51.
In 2001, Plaintiff wanted to go home to Nepal since her mother had died there, but the Malik Defendants told her that since 5 years had passed since she first came to the U.S., said she needed a green card to go home. AC, ¶ 54. Unbeknownst tо her, the Malik Defendants applied for a green card for Plaintiff of their own volition, which was issued on August 14, 2006. AC, ¶ 56-57. Despite her regular inquiries over the status of her green card from 2006 through 2008, the Malik Defendants consistently told Plaintiff it had not arrived, and Plaintiff continued to work for them. AC, ¶ 58-59.
In August of 2008, Plaintiff traveled to Nepal with the Malik Defendants, and was told that her green card had still not arrived, but that she was traveling with a “special travel document” that permitted her to travel, with the Defendants maintaining possession of her travel documents. AC, ¶ 60. Once in Nepal, Plaintiff asked for her compensation and was told she would be paid one million Indian rupees. This sum, in addition to the sporadic payments made to her family over the years, amounted to $0.41 per hour. AC, ¶ 61. Plaintiff then refused to return to the United States with the Defendants. AC, ¶ 62. Six months later, in January or February 2009, Plaintiff received a check for the one million Indian rupees, as well as her passport and green card. AC, ¶ 63.
In the fall of 2009, while applying for a social security card, Plaintiff learned for the first time that her green card had been issued in 2006, not 2009 as the Malik Defendants had claimed. AC, ¶ 66. In July 2012, Plaintiff met with a lawyer for the first time concerning her rights to recover unpaid wages, and in September 2012, Plaintiff filed a complaint with the New York State Department of Labor, which investigation is continuing. AC, ¶ 66-68.
In February 2009, Defendant Shammi Malik filed for bankruptcy under Chapter 7 in the Eastern District of New York. AC, ¶ 69. His schedule of debts did not include any money owed to Plaintiff, nor was Plaintiff provided notice of his bankruptcy filing. On June 2, 2009, the bankruptcy court ordered a discharge of Shammi Ma-lik’s bankruptcy and the case was closed. Plaintiff discovered the bankruptcy when her attorneys performed a background cheсk while preparing the complaint in the instant action. AC, ¶ 70-72.
This action was filed on May 14, 2014. Docket entry (“DE”), 1. Plaintiffs complaint alleges thirteen cause of action.
B. Defendants’Motion
The Malik Defendants move to partially dismiss Plaintiffs action. They claim Plaintiff’s claims under the FLSA, NYLL, for unjust enrichment and for conversion are at least partially time-barred, that the wage and hours claims, and claims for conversion and fraud are inadequately pled, and that the claims against Shammi Malik are discharged by his bankruptcy. For the reasons that follow, Defendants’ motion is denied in its entirety.
DISCUSSION
I. Standards on Motion to Dismiss
In considering a motion to dismiss made pursuant to Rule 12(b)(6), the court must accept the factual allegations in the complaints as true and draw all reasonable inferences in favor of Plaintiff. Bold Electric, Inc. v. City of New York,
II. Equitable Tolling
The thrust of Defendants’ motion is that Plaintiffs complaint, which was filed on May 14, 2013, approximately five years after she left the Defendants’ employ and which seeks recovery for acts that occurred as long as 12 years ago, are time-barred. In response, Plaintiff argues that
A statute of limitations may be subject to equitable tolling to prevent unfairness to a plaintiff who is late in filing through no fault of her own. Gonzalez v. Hasty,
“To qualify for equitable tolling, the plaintiff must establish that extraordinary circumstances prevented [her] from filing [her] claim on time, and that [s]he acted with reasonable diligence throughout the period [s]he seeks to toll.” Parada v. Banco Industrial De Venezuela, C.A.,
Equitable tolling applies if defendant’s fraudulent conduct causes plaintiffs lack of knowledge of a cause of action. De Sole v. Knoedler Gallery, LLC,
1. The FLSA and the NYLL Claims
The statute of limitations for a claim under the FLSA is two years, and three years in the case of a willful violation. 29 U.S.C. § 255(a). The statute of limitations for a claim under the NYLL is. six years. NY. McKinney’s Labor Law, § 198(3). Plaintiff alleges that she first learned of her rights when she met with a lawyer in July 2012. AC, ¶ 67. She filed her complaint with the New York State Department of Labor on September 9, 2012, and filed this complaint was filed on May 14, 2013.
Other courts in this circuit have addressed this issue is similar contexts. In United States v. Sabhnani,
Here, Plaintiff alleges that the Defendants isolated her, restricted her communications with others, did not encourage her to learn to speak or read English, retainеd her passport and green card (which she did not know she had), did not educate her as to her rights, and represented that they were saving her compensation for her benefit when they did not. As a result of this misconduct, the various statutes of limitation should be tolled. See Plaintiffs Memorandum in Opposition (“PI. Mem.”), at 9-10. Plaintiff alleges that she did not learn of her rights until she met with an attorney in July 2012.
Defendants argue that this is disingenuous, and that clearly Plaintiff knew she was entitled to compensation because she even alleges that she asked the Maliks for her pay on various occasions. In аddition, Defendants urge that since Plaintiff had “the power to quit her job” — evidenced by the fact that she did in 2008 — she cannot argue that she was treated as a modern-day slave. Defendants’ Reply Memorandum (“Def. Reply Mem.”), at 3-4.
The Court notes that merely knowing one has a general entitlement to compensation for work performed is very different from awareness of a legal right to minimum wage and overtime compensation under the FLSA or the NYLL. See United States v. Sabhnani,
Furthermore, Defendants’ argument that Plaintiff “had the power to quit her
The Court finds that there is an insufficient record to determine whether Plaintiffs claims are equitably tolled. Whether tolling applies depends on what and when the Plaintiff knew or should have known, and whether “exceptional circumstances” or fraud by the Defendants prevented her to learning her rights. Since this is a motion to dismiss where the Court is bound to the pleadings, there is an inadequate factual record to determine whether equitable tolling is warranted here. Therefore, the Court denies Defendants’ motion to dismiss on this basis, without prejudice to renew either by a summary judgment motion or at the time of trial. As stated by this Court previously, “it is simply too early to tell” if equitable tolling applies. Statler,
2. Unjust Enrichment Claim
The statute of limitations for a claim for unjust enrichment is six years. New York Civil Practice Laws and Rules (“CPLR”), § 213. For the reasons discussed above, since the record presently before the Court is inadequate to determine what and when the Plaintiff knew or should have knоwn she had a claim for unjust enrichment, and whether “exceptional circumstances” exist to warrant equitable tolling, the Court denies Defendants’ motion to dismiss this claim on statute of limitations grounds without prejudice to renew following discovery or at the time of trial.
3. Conversion Claim
The statute of limitations for a conversion claim is three years. CPLR, § 214(3); Vigilant Ins. Co. of Am. v. Housing Auth. of City of El Paso, Tex.,
III. Whether Plaintiffs Claims are Sufficiently Pleaded
1. Wage and Hours Claims
Defendants argue that Plaintiffs complaint contains “conclusory, wide-spanning allegation[s]” and “blanket and sweeping statements” that do not specify the frequency or duration of the hours worked to support a wage claim. The Court disagrees. The amended complaint states that Plaintiff began working for the Defendants in the United States in September 1996. AC, ¶ 15-16. She worked seven (7) days per week, with no days off, working from 7:00am until 10:00 or 11:00 pm, with three (3) short breaks for meals. AC, ¶20. Plaintiff no longer worked in the United States once she returned to Nepal with the Defendants in August 2008. AC, ¶ 60. For her work over those twelve years, Plaintiff was paid one million Indian rupees, which in addition to the sporadic payments madе to her family over the years, amounted to $0.41 per hour. AC, ¶ 61. The Court finds that these allegations meet the pleading standards of the Second Circuit for these types of claims. Lundy v. Catholic Health System of Long Island,
2. Conversion Claim
Defendants also argue that Plaintiff has failed to sufficiently plead a claim for conversion since Plaintiff never had “possession, ownership or control” over her green cаrd or the money due her and therefore she fails to state a claim for conversion. Def. Mem., at 6. Conversion is the “unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights.” Vigilant Ins. Co. of Am. v. Housing Auth. of the City of El Paso, Tex.,
Here, while Plaintiff may not have had actual possession of her passport, green card or compensation before the Malik Defendants allegedly converted them, Plaintiff certainly had a present interest in her own travel documents, and an expectation of a future right of possession in those items. The Court finds that Plaintiff has sufficiently stated a claim for conversion..
3. Fraud Claim
Defendants claim that Plaintiffs fraud claim is not pleaded with the specificity required by Fed.R.Civ.P., Rule 9(b), claiming Plaintiff has not specified the particular fraudulent statements, who made them, where and when they were made, or explain why the statements were fraudulent. Def. Mem., at 6-7. The amended complaint identifies various fraudulent statements, including a conversation between Plaintiff and Defendant Neeru Malik in 1997 in the Malik’s bedroom, wherein Neeru represented to Plaintiff that she would be paid $500 like the other Malik employees were. AC, ¶48. The complaint also alleges that “on several occasions,” Defendant Shammi Malik represented to Plaintiff that she would be paid a certain sum for the first six years and receive a raise thereafter. AC, ¶ 49. Plaintiff also alleges that “on several occasions” from 2002 through 2006, while driving in the car from Long Island to the office in Manhattan, Shammi Malik represented to Plaintiff that he was saving her pay for her, and that she did not need it right away since she lived with the Defendants and her expenses were covered. AC, ¶ 50. Finally, Plaintiff alleges that Defendants repeatedly misrepresented to her that her green card had not arrived, when in fact it had. AC, ¶ 57-60.
Fraud claims are subject to the heightened pleading standard of Fed. R.Civ.P. 9(b), which is satisfied when the complaint specifies “the time, place, speaker, and content of the alleged misrepresentations,” how the misrepresentations were fraudulent, and the details that “ ‘give rise to a strong inference that the defendant! ] had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.’ ” Cohen v. S.A.C. Trading Corp.,
The Court finds that the allegations here sufficiently state a fraud claim. Plaintiff identifies the statements that were madе, who made them and where. Plaintiff also sufficiently alleges that Defendant Shammi Malik knew the statements concerning Plaintiffs green card were false when they were made since she subsequently learned that the card had already been issued. She also adequately alleges a “strong inference” that Defendants had the intent to defraud her regarding her compensation since the payment she ultimately received was not in accordance to the statements Defendants made. The Court makes no determination on the truth of Plaintiffs allegations, but merely finds that the complaint meets the “heightened pleading standard” of Rule 9(b). Therefore, Defen
IV. Whether Plaintiffs Claims Against Shammi Malik are Discharged by His Bankruptcy
Defendant Shammi (Joginder) Malik moves to dismiss Plaintiffs claims against him, asserting that they were discharged by his bankruptcy, filed in February 2009 and from which he received a discharge on June 2, 2009. AC, ¶ 69, 71. Plaintiff argues that since she was not on Defendant’s schedule of debts and had no notice of the bankruptcy action, (AC, ¶ 70), her claims are not discharged.
11 U.S.C. § 528 outlines the exceptions to a bankruptcy discharge. Plaintiffs complaint alleges two claims that the debts due are her are non-dischargeable. One claim is that the debt is covered by § 523(a)(2)(A), which pertains to money obtained through false pretenses, a false representation or actual fraud; and the other is that the debt is covered by § 523(a)(6), which applies to a willful and malicious injury by the debtor to another entity or property of another entity. Plaintiff alleges that both are excepted under § 523(a)(3)(B), which concerns debts that are not listed on the schedule of debts. See AC, Twelve and Thirteenth Claims, ¶¶ 158-170.
There is no dispute here that Plaintiff was not listed in Defendant Shammi’s schedule of debts. Defendant argues that is because he did not know of any debts owed to Plaintiff, particularly because she did not file her complaint until years later. Def. Mem., at 7-8. Defendant urges that Plaintiff should not be rewarded for sitting on her rights, and that Plaintiffs claims do not sound in fraud, nor are they sufficiently “willful and malicious” within the meaning of § 523(a)(2)(A) or § 523(a)(6) to permit the exceptions to discharge to apply. Id.
Generally, once a bankruptcy is concluded, “all debts that arose before the date of the order for relief’ are discharged. In re Medaglia,
CONCLUSION
For the reasons stated above, Defendants’ partial motion to dismiss Plaintiffs FLSA, NYLL, unjust enrichment, conversion, fraud, claims, and the claim that Plaintiffs claims against Defendant Sham-mi Malik are dischargeable by his bankruptcy, is denied in its entirety.
SO ORDERED.
Notes
. The present motion does not involve the Singh Defendants.
. Defendants do not dispute Plaintiff's assertion that her claim under the NYLL was tolled when she filed her complaint with the New York State Department of Labor on September 9, 2012. See PL Mem., at 8, n. 3; NYLL § 198(3).
. Plaintiff also argues that her claims should be tolled because Defendants failed to post notices of an employee’s rights under the FLSA in the workplace. The Court notes that this failure, by itself, does not necessarily justify equitable tolling. See Ramos v. Platt,
. The Court notes that in her opposition papers, Plaintiff states that the statute of limitations on her conversion "did not begin to run” until she received her compensation check, passport and green card in January or February 2009. See PL Mem., at 10. In that case, the three-year statute on Plaintiff’s conversion claim ran in January or February 2012. Yet, as discussed above, the Court declines to dismiss the conversion claim at this time pending a more adequate record to determine whether equitable tolling applies to the claim.
. To the extent Plaintiff’s conversion seeks money owed for the work she performed as opposed to property, “a plaintiff must have either possessed the money or had a right to immediate possession of the money.” Barnet v. Drawbridge Special Opportunities Fund LP,
. As stated by the U.S. Supreme Court, "[t]he most straightforward reading of § 523(a)(2)(A) is that it prevents discharge of ‘any debt’ respecting ‘money, property, services, or ... credit’ that the debtor has fraudulently obtained, including treble damages assessed on account of the fraud.” Cohen v. de la Cruz,
. By letter briefs at DE 30, 31 and 32, the parties addressed the question of whether the dischargeability of Plaintiff's claims should be decided by this Court or the bankruptcy court. The Court notes that despite this order, Defendant is entitled to make a motion under 11 U.S.C. § 350(b) to reopen his bankruptcy case and seek a ruling from that court, however, in that event, no delay of the action will be permitted.