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Franco v. Diaz

United States District Court, E.D. New York

September 12, 2014

NILSA FRANCO, Plaintiff, -

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For Nilsa Franco, Plaintiff, Counter Defendant: Alice Fae Davis, LEAD ATTORNEY, Catholic Migration Services, Sunnyside, NY.

For Ada Diaz, Julio Diaz, Maximina Vargas, Defendants, Counter Claimants: Michael C. Barrows, LEAD ATTORNEY, Barrows & Tehrani PLLC, New York, NY; Rocco G. Avallone, Avallone & Bellistri, LLP, Lake Success, NY.

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I. Leo Glasser, Senior United States District Judge.

Plaintiff, a citizen of Paraguay residing in New York, brings this action against Ada Diaz (" Ada" ), Julio Diaz (" Julio" ), and Maximina Vargas, alleging violations of the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. § § 1589, et seq. (" TVPRA" ), the Fair Labor Standards Act, 29 U.S.C. § § 216, et seq. (" FLSA" ), and various provisions of the New York Labor Law, as well as claims under New York law for intentional infliction of emotional distress (" IIED" ), negligent infliction of emotional distress (" NIED" ), and battery. Plaintiff claims that she was induced to come to New York to work for defendants as a domestic servant and nanny, forced to work long hours for little pay, and subjected to verbal and physical abuse as well as threats of deportation. In their answer, defendants assert various counterclaims under New York law. Currently before the Court are plaintiff's motion to dismiss the counterclaims and defendants' motion to dismiss certain counts of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, as well as defendants' motion to amend their answer.[1] For the reasons that follow, plaintiff's motion to dismiss defendants' original counterclaims is GRANTED, defendants' motion to amend their answer to add a defamation counterclaim is GRANTED, and defendants' motion to dismiss is DENIED.


Except where otherwise noted, the following facts are taken from Plaintiff's complaint, Dkt. No. 1. (the " Complaint" ), and are accepted as true for purposes of deciding defendants' Rule 12 motion. Vargas is plaintiff's aunt. Ada is plaintiff's cousin and is married to Julio. In late 2006 or early 2007, Vargas contacted plaintiff's parents about an opportunity for plaintiff to work in the United States as a domestic worker and caretaker for the infant son of Julio and Ada. Plaintiff would live with the Diaz family and be paid a monthly salary. Defendants paid all of the fees associated

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with obtaining a visa for plaintiff and her travel to the United States. Plaintiff entered the United States in April of 2007 and began working for Julio and Ada.

Shortly after arriving, Vargas took plaintiff's passport under the pretense of needing to show it to an immigration attorney. Plaintiff asked Ada to return her passport, but Ada told her that the passport had never left plaintiff's possession, and that she must have lost it. Ada and Vargas both told plaintiff that she could not obtain a new passport without presenting her old one at the consulate, and that attempting to obtain a new passport without her old one would put her at risk of deportation. Ada and Vargas also told her they would call immigration authorities and have plaintiff deported if her work did not meet their standards. On one occasion, Ada discovered and confiscated a piece of paper on which plaintiff had written the phone number for the Department of Labor.

At the start of her employment, plaintiff worked approximately 10 to 11 hours a day for $400 per month. In September of 2007, Ada had another child. Soon after the birth of that child, plaintiff began working approximately 14 hours a day, which continued for the duration of her employment. Plaintiff was required to make breakfast and dinner for the family, as well as lunch for the children. In addition, plaintiff was responsible for doing the family's laundry, cleaning, and taking the children to and from school. Julio and Ada frequently spent weekends out of town, leaving plaintiff alone to care for the children. From 2009 to 2012, plaintiff received a raise of $100 per month each January, with her salary reaching $800 per month in 2012. Plaintiff did not receive a raise in 2013. Throughout the duration of her employment plaintiff was subjected to frequent verbal abuse from Ada and Vargas.

In late 2011, Ada had another child. In April of 2012, Ada travelled to Paraguay with her two older children, leaving plaintiff in New York to care for the infant, who was then approximately five months old. During Ada's absence, Julio attempted to rape plaintiff and told her that if she reported it, he would have her deported.

In September of 2013, plaintiff met one of her neighbors at a local Laundromat. He became concerned about plaintiff's safety after being told of her situation. On October 27, 2013, plaintiff told Ada that she intended to leave the house for the afternoon. Ada became irate and confiscated plaintiff's key to the home. Ada then told plaintiff that she would not be paid at the end of the month because, earlier in the month, defendants had paid $1,000 toward plaintiff's father's funeral expenses. Plaintiff left the house after this conversation and did not return until early the next morning. Upon plaintiff's return, Ada called her an ingrate and a prostitute and made other derogatory remarks. Ada also shoved plaintiff during this encounter, and subsequently confiscated plaintiff's cellular telephone. She called the neighbor and told him to stay away from plaintiff.

Later that morning, after Ada had left for work, plaintiff met with the neighbor. He brought her to meet with an attorney from Catholic Migration Services. Plaintiff asked the attorney to help her get a police escort to leave defendants' house. She also asked the attorney for help with obtaining wages defendants owed her. That evening, with police assistance that the attorney was able to obtain, plaintiff left the Diaz home.

In the months that followed, Vargas and Ada made threats against plaintiff to members of her family. In November of 2013,

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Vargas traveled to Paraguay and told plaintiff's mother that plaintiff " should be careful" if she ever returned to Paraguay. On December 15, 2013, Ada contacted plaintiff's sister via Facebook and told her that plaintiff's " end [was] near."

Plaintiff filed the Complaint in this action on March 25, 2014. Dkt. No. 1. Defendants answered the Complaint on May 12, 2014 and asserted four counterclaims. Dkt. No. 8. On June 16, 2014, plaintiff moved to dismiss those counterclaims. Dkt. No. 17. On July 9, 2014, defendants filed their opposition to plaintiff's motion, simultaneously moving to dismiss certain causes of action in the Complaint and to amend their answer. Dkt. No. 18. In so moving, defendants agreed to withdraw three of their four counterclaims and sought to add an additional counterclaim. See Dkt. No. 20 at 13. On July 23, 2014, plaintiff filed a reply in support of her motion to dismiss defendants' counterclaims (Dkt. No. 24), an opposition to defendants' motion to dismiss (Dkt. No. 25), and an opposition to defendants' motion to amend (Dkt. No. 26). On July 30, 2014, defendants' filed replies in support of their motion to dismiss and motion to amend. Dkt. Nos. 28 & 29.


Motions to Dismiss

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