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Annamma Brojer v. Kuriakose George S/H/A George Kuriakose

May 1, 2013

ANNAMMA BROJER, PLAINTIFF,
v.
KURIAKOSE GEORGE S/H/A GEORGE KURIAKOSE, ANN KURIAKOSE GEORGE S/H/A ANNE KURIAKOSE, AND KOCHUMON, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

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 Background*fn1

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.

The remainder of the Amended Complaint summarizes the conditions of Mrs. Brojer's employment. She worked all day, every day, cooking, cleaning, and 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 not permit her to use the bathroom without supervision. They also did not allow her to use the telephone, except on Christmas when she was permitted to call her children in India. Once, Mr. George drove over Mrs. Brojer's legs with his car 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 that she was no longer needed and returned her passport. 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 York, purportedly on behalf of himself and Mrs. Brojer, and simultaneously filed an application to proceed in forma pauperis. (Docket Entry 2.) 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. (Docket Entry 7.) 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 Entry 13). The U.S. Marshal Service ("USMS") successfully served summonses and copies of the Amended Complaint on the Georges; however, USMS was unable to serve Defendant Kochumon at the address provided. (Docket Entries 17- 19.) The Georges answered the Amended Complaint on February 7, 2012. (Docket Entry 20.)

Magistrate Judge William D. Wall held an initial conference on July 19, 2012. At Mrs. Brojer's request, Judge Wall permitted Mr. Brojer to appear, via telephone, on her behalf due to the fact that Mrs. Brojer resided in India. 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 this country to prosecute her action." (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.) 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 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. (Docket Entry 36.) 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 received ...


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